Felix Okpako V. The State (2018)
LAWGLOBAL HUB Lead Judgment Report
KUMAI BAYANG AKA’AHS, J.S.C.
The accused/appellant was arraigned before the High Court of Justice Delta State, lsiokolo Judicial Division on a 1 count charge of murder punishable under Section 319(1) of the Criminal Code Cap. 48 Volume II, Laws of the defunct Bendel State 1976 as applicable to Delta State in Charge No. HCI/11C/2004. The Charge read as follows:-
“STATEMENT OF OFFENCE”
Murder, punishable under Section 319(1) of the Criminal Code Cap. 48 Volume II, Laws of the defunct Bendel State 1976 as applicable to Delta State.
PARTICULARS OF OFFENCE
Felix Okpako (m) on the 11 day of October, 2002 at Oviore town within lsiokolo Judicial Division murdered one Eloho Okpako (f).
He entered a plea of not guilty to the charge and the prosecution called four witnesses to prove the case. In the course of his evidence pw4 sought to tender a statement which the accused was alleged to have made on 17 October, 2002 but the defence objected to its admissibility on the ground that it was made under duress and torture. The learned trial Judge ordered for trial within trial to be conducted and thereafter
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overruled the objection and admitted the statement as exhibit “D”. An earlier statement made by the accused/appellant on 13 October, 2002 was tendered without objection by PW1 and was admitted as Exhibit “A”.
The accused/appellant testified but called no other evidence in his defence. In his evidence he said he was at home at Oviorie – Ovu on 11 October, 2002 and at about 6 p.m. he and the deceased quarreled and he gave her a punch as a result of which she fell down on the ground. On seeing this he took to his heels and went to his sister’s place in Warri. Three days later he learnt that the deceased had died. He said he did not expect she would die from the beating. He denied knowledge of the deceased sustaining a knife wound which led to her death. He also denied stabbing the deceased. He said he did not know who killed the deceased.
The learned trial Judge reviewed the evidence after learned counsel had presented their address. He found that it was the accused/appellant who inflicted the deceased with stab wound on the neck from which she bled to death. He arrived at this conclusion from Exhibit “D” the statement of the accused/appellant. He
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disbelieved the evidence of the appellant in Court and held that it was an afterthought. He concluded that the accused/appellant intentionally killed the deceased. He thereby convicted the accused of the offence of murder and sentenced him to death based on circumstantial evidence.
The accused/appellant was dissatisfied and appealed against his conviction and sentence to the Court of Appeal, Benin Division. The appeal was dismissed and his conviction was affirmed by the lower Court. The appellant was not satisfied with the decision of the Court of Appeal, Benin and appealed further to this Court in his Notice of Appeal dated 2 August, 2012 containing three grounds of appeal from which Mr. Asala, learned counsel representing him distilled the following issue for determination:-
“Whether having regard to the totality of the evidence on record the lower Court was right in upholding the decision of the trial Court that the respondent proved the charge of murder against the appellant beyond reasonable doubt”.
The respondent amended its brief of argument which was deemed filed on 19 October, 2017 just before the arguments in the appeal were taken.
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Mr. Mrakpor the learned Attorney-General of Delta State adopted the issue framed by learned counsel for the appellant.
The appellant’s arguments in this appeal are predicated on the fact that the respondent did not prove the charge of murder against him beyond reasonable doubt since the trial Court relied heavily on Exhibit “D” as a confessional statement to find the appellant guilty of the offence charged. Learned counsel argued that there was no direct eye witness account as to the circumstances under which the deceased was killed as PW3 stated in his evidence that he did not see the accused stab the deceased. While conceding to the fact that if the only evidence available against an accused person is a confessional statement, the Court ought to be very slow in convicting solely on such a confessional statement, learned counsel argued that since the appellant challenged the voluntariness of Exhibit D, the appellant could challenge the weight which was attached to Exhibit “D” for the following reasons:-
The concurrent findings of the trial Court and the lower Court are perverse and should be set aside. He also submitted that both the trial
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Court and the Court below did not advert their minds to the tests laid down in Kazeem v. State (2009) All FWLR (Pt. 465) 1749 at 1776 in returning a verdict of guilty on the appellant. Although PW4 gave the impression that he recorded Exhibit D, it turned out that he did not personally record Exhibit “D” and so the Courts cannot consider the contents of Exhibit “D” as true without the person who obtained and thus authored it being called as witness. The veracity of the maker of Exhibit D could not be tested under cross-examination to ascertain the truthfulness of the contents. Again since appellant made Exhibit A earlier which is inconsistent with Exhibit “D” the trial Judge was duty bound to adopt an approach that was most favourable to the appellant. Reliance for this submission was placed on Sam v. State (1991) 2 NWLR (Pt. 176) 699 at 707. He submitted that Exhibit “D” is highly suspicious because the prosecution refused to disclose the identity of the officer who obtained the statement inspite of the fact that the appellant challenged its contents. It was necessary for the person who recorded Exhibits A and D to be cross-examined by the
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appellant to test the veracity of Exhibit “D” in order to rule out the possibility of inducement or threat since in Exhibit “A” made on 13/10/2002 the appellant denied stabbing the deceased but in Exhibit D which was made on 17/10/2002, he admitted killing the deceased.
In the Respondent’s amended brief which was deemed filed on 19 October, 2017, learned counsel submitted that in a charge of murder punishable under Section 319(1) of the Criminal Code Cap. 48 Volume II Laws of the defunct Bendel State of Nigeria 1976 as applicable to Delta State, the prosecution is required to prove the following ingredients namely:-
(a) The death of the deceased.
(b) That the death was caused by the act of the accused
and
(c) That the act or omission of the accused causing the death was intentional with knowledge that death or grievous bodily harm was its possible consequence. He cited the following cases in support viz:
Durwode v. The State (2001) FWLR (pt. 36) 950 at 974- 5; ldemudia v. The State (2001) FWLR (Pt. 55) 549 at 364; Ubani v. The State (2004) FWLR (Pt. 191) 1533 at 1546 and Itu v. State (2016) 5 NWLR (pt. 1506) 443 at 465.
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He said in discharging the onus, the prosecution is allowed to present a confessional statement, circumstantial evidence or evidence of an eye witness also referred to as direct evidence.
At the trial of the appellant the prosecution presented both the confessional statement of the accused which was admitted as Exhibit “D” his extra judicial statements and the circumstantial evidence of the four prosecution witnesses. The learned trial Judge painstakingly evaluated the entire evidence before arriving at the conclusion that the prosecution had proved its case before convicting the appellant and the judgement of the learned trial Judge was affirmed by the lower Court. He argued that where there are concurrent findings of fact by the two lower Courts, the Supreme Court will not disturb such findings if they are not perverse and are borne out from available evidence. He relied on Olalekan v. The State (2002) FWLR (pt. 91) 1605 at 1628 and Amayo v. The State {2001) 2 SC (pt. 1) 1.
He contended that the appellant must establish special circumstance such that a miscarriage of justice has been occasioned or that there was a breach of either
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procedural or substantive law to warrant a reversal of the verdict reached in the concurrent finding of facts. He said the appellant failed to discharge the burden placed on him. He maintained that the argument of appellant’s counsel that the trial Court did not subject the confessional statement to the veracity test was misconceived since the concurrent findings by the Courts below were well supported by abundant pieces of evidence as shown in the records of appeal and that it is settled law that a free and voluntary confession of guilt which is direct, positive and satisfactorily proved even without corroboration can ground the conviction of an accused person.
The thrust of the complaint by learned counsel for the appellant is that the learned trial Judge could not ascertain the veracity of Exhibit “D” since the recorder of the statement was not cross-examined. In the course of giving his evidence, PW4, Inspector Akpio lyawa sought to tender the statement which was recorded by a team of investigators which he headed but learned counsel for the defence objected on the ground that the statement was made under duress and torture. (See page 28 lines
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29-30). This prompted the Court to conduct a trial within trial before the statement was made admitted in evidence as Exhibit “D”.
Section 29(1) (2) and (3) of the Evidence Act provides as follows:-
“29-(1) In any proceeding, a confession made by a defendant may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and it is not excluded by the Court in pursuance of this Section.
(2) If, in any proceeding where the prosecution proposes to give evidence in a confession made by defendant, it is represented to the Court that the confession was or may have been obtained –
(a) by oppression of the person who made it, or
(b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in such consequence, the Court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained in a manner contrary to the provisions of this Section.
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(3) In any proceeding where the prosecution proposes to give in evidence a confession made by a defendant, the Court may of its own motion require the prosecution, as a condition of allowing it to do so to prove that the confession was not obtained as mentioned in either Subsection (2)(a) or (b) of this Section.
The learned trial Judge was satisfied that the appellant was not compelled to make the statement under threat or duress and so allowed the prosecution to tender the statement under Section 29(3) Evidence Act. It is not necessary that another person other than the accused should record the statement although in most cases accused persons usually decline to write their own statements but leave the recording of the statement to the Police investigator. The admissibility of a statement made by an accused person is questioned when the accused alleges that the statement was not voluntary. Even when an accused does not own up to making the statement, the Court can still admit the statement and later attach whatever weight it assesses the statement contains. It does not matter whether PW4 was cross-examined or not on the recording of Exhibit “D”. The
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important thing is the weight the trial Judge attached to Exhibit “D” regard being had to the surrounding circumstances of the accused making the statement and not the truthfulness of the contents by the person who recorded it. To put it another way, the Court will not consider how Exhibit “D” was obtained rather the Court will take into consideration whether what is admitted is relevant to the issues being tried. See: Elias v. Disu (1962) 1 SCNLR 361; (1962)All NLR 214; lgbinovia v. The State (1981) 2 SC 5.
The law is now settled that an accused person can be convicted solely on his confessional statement. It is however desirable to have, outside a confession, some evidence of circumstances which make it probable that the confession was true. The learned trial Judge found that Exhibit D” was a voluntary confessional statement which was positive and direct. He found that pw2’s evidence corroborated Exhibit D which made it probable that Exhibit “D” was true and correct. He therefore found that the accused intentionally killed the deceased, Eloho Okpako and held that the prosecution proved its case beyond reasonable doubt. Consequently he
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convicted and sentenced the accused to death by hanging.
The lower Court found that the learned trial Judge dispassionately evaluated the totality of the evidence which the parties presented to him, both oral and documentary, before coming to the conclusion that Exhibit “D” could competently be used to convict the appellant and the respondent proved the charge of murder preferred against the appellant beyond reasonable doubt. Before arriving at this conclusion, the Court below also evaluated the evidence of PW2 and Exhibit D and found as follows at page 140 of the records:-
“The fact that a stab wound was inflicted on the neck of the deceased and that the deceased was killed as a result of the injury are true as far as can be tested. These are relevant facts contained in Exhibit D. There is nothing to suggest that the appellant had no opportunity to commit the crime…The confession is consistent with the discovery and possibility of the confession is also demonstrated in the findings of PW2 as well as Exhibit A, the appellant’s first statement to the police. The appellant stated in Exhibit A that he beat and hit the deceased and
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when he saw that the deceased had collapsed and died, he ran away to another location where he was eventually arrested by the Police”.
It is true that there is no eye witness account that the Appellant was the person who killed the deceased. It is in Exhibit “D” that he confessed to killing the deceased by stabbing her with a knife on the neck. PW2 in his evidence stated that when he performed the post mortem on Eloho Okpako (deceased) he established “the presence of a stab wound at the anteria aspect of the nucal region, cutting the left carotene artery and left jugular vein.” Based on his findings he formed the opinion that the deceased died as a result of haemorrhage due to the cutting of both of the two mentioned blood vessels. The corroborative evidence of the PW2 is as to the injury sustained by the deceased which caused the death.
The concurrent findings by the Courts below are well supported by the evidence the prosecution adduced including the extra judicial statements of the appellant which were received in evidence as Exhibits A and “D”.
Learned counsel for the appellant is contending that Exhibit “A” which the
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appellant made on 13 October, 2002 is inconsistent with Exhibit “D” which he made on 17 October, 2002 and submitted that the trial Judge was duty bound to adopt an approach that was most favourable to the appellant as Exhibit “D” was highly suspicious and placed reliance on Sam v. State (1991) 2 NWLR (Pt. 176) 699 at 707.
In Exhibit “A” the appellant admitted beating the deceased on the orders of their father Freeborn Okpako. He said he beat the deceased in annoyance and hit her on the chest and she collapsed and died. It is in Exhibit “D” that he said he was annoyed and he beat her and “l used kitchen knife to stab her on the neck and she started bleeding and fell on the ground”.
The lower Court in affirming the findings made by the learned trial Judge on the issue of corroborative evidence stated at pages 140-141 of the record:-
“The trial Court similarly relied on other independent evidence outside the confession, exhibit D, which corroborated the story in it. The evidence of PW2 corroborated the contents of Exhibit D. The fact that a stab wound was inflicted on the neck of the deceased and that the deceased was killed as a result of the
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injury are true as far as can be tested. These are relevant facts contained in Exhibit D. There is nothing to suggest that the appellant had no opportunity to commit the crime. He did not give evidence that he was not in the vicinity where the deceased was found dead in a pool of her blood in front of the house where the deceased, appellant and PW3, their father lived. The confession is consistent with the discovery and possibility of the confession is also demonstrated in the findings of PW2 as well as Exhibit A, the appellant’s first statement to the Police. The appellant stated in Exhibit A that he beat and hit the deceased and when he saw that the deceased had collapsed and died, he ran away to another location where he was eventually arrested by the Police – (see page 52 of the record).
These are facts ascertained and proved. Once the conditions for admissibility of a document are met by the trial Court and the document is admissible as in the instant case, the trial Court is bound to employ and use it against its maker, in the instant matter, the appellant”.
Having perused through Exhibit “A”, I cannot see how the said Exhibit A” is inconsistent with Exhibit “D” to
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warrant adopting an approach that would be more favourable to the appellant as advocated by Katsina-Alu JCA (as he then was) in Sam v. State supra at pages 707-708. In that case on appeal, Katsina-Alu JCA had found that the appellant made two statements which were received in evidence and marked as Exhibits “F” and “G”. Exhibit “F” was made on 16/2/84 while Exhibit “G” which was earlier in time was made on 6 February, 1984. In Exhibit G, the appellant had stated she left for the farm in the morning of Friday, 3/2/84 leaving her husband who was hale and hearty in the house and on her return from the farm by about 2 p.m. she enquired from the children about the whereabouts of her husband who told her he was sleeping on the bed. She decided to go into the kitchen to cook a meal and after she had finished cooking, she sent her son Godwin to call his father from the room to come and eat but the son returned to inform her that the father did not respond. After waiting for a while she went into the room to call him but found that he had died. In Exhibit “F” which was made some 10 days later on 16/2/84 the appellant stated that on
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3/2/84, she returned from the farm to meet her husband who beat her with a broom. In retaliation she used the matchet she carried to the farm to inflict injury on his head from where blood gushed out and he fell down on the ground. She later touched him and found that he had died. The learned trial Judge found that Exhibits “F” and Exhibits G” were confessional statements, convicted her for the offence of murder. On appeal, the Court of Appeal found that unlike Exhibit “F”, Exhibit “G” was not a confessional statement and in his leading judgement, Katsina-Alu JCA held as follows:-
“In Exhibit “F” the appellant confessed to killing her husband. As I have already pointed out the learned trial Judge believed and accepted both statements and convicted the appellant. The question I ask myself is whether he was right in doing so. I think not. I have shown that Exhibit “G” is not a confessional statement. Faced with Exhibit F and G which contradict each other, the learned Judge was in duty bound to adopt an approach that was most favourable to the appellant. Having believed and accepted Exhibit “G” the learned Judge had no basis
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whatsoever for believing Exhibit “F” in which she confessed to the killing”.
The same scenario did not play out in Exhibit “A” and “D” in the present appeal. As I have already pointed out the appellant admitted beating the deceased and then hit her on the chest where she collapsed and died and on noticing what had happened he took to his heels while in Exhibit “D” he confessed to stabbing the deceased on the neck where she bled to death. In both instances it was the act of the appellant that caused the death of the deceased. In the result, it cannot be said as learned counsel for the appellant has argued that the concurrent findings of the trial Court and the lower Court are perverse and should be set aside. There is no reason why this Court should interfere with those concurrent findings of fact because they were not reached as a result of wrong approach to or wrong application of a principle of either substantive or procedural laws. See: Oguonzee v. State (1998) 5 NWLR (Pt. 551)521.
Learned counsel for the appellant criticized the admission of Exhibit “D” on the evidence of a single witness in the trial within trial. The learned trial Judge
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believed the sole evidence of the PW1 in the trial within trial before admitting Exhibit D.
If the conviction of the appellant had been based purely on his said confession without any corroborating evidence, the appeal might have stood a chance of succeeding but as the lower Court pointed out, the trial Court relied on the other independent evidence outside the confession which corroborated the story in it. The tests led out in Ogundipe v. The Queen (1954) 14 WACA 458 were stringently applied to test the truth of the confession namely:-
(a) Whether there is anything outside it to show that it is true.
(b) If there is corroboration.
(c)The facts stated in it are true as far as can be tested.
(d) The accused person had the opportunity of committing the offence.
(e) The accused person’s confession is possible.
(f) The confession is consistent with the other facts ascertained and proved.
See: Dawa v. State (1980) 8-11 SC 236; Udofia v. State (1984) 12 SC 139; Ojegele v. State (1988) 1 NWLR (Pt. 71) 414; Akpan v. State (2007) NWLR (Pt. 1019) 500 and Uwagboe v. State (2007) 6 NWLR (Pt. 1031) 606.
It is settled law that once a confessional statement is
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admitted in evidence, it becomes part of the case of the prosecution which probative value the trial Judge is bound to consider. See: Egboghonome v. The State (1993) 7 NWLR (pt. 306) 383; Nwangbomu v. State (1994) 2 NWLR (pt. 327) 380.
Once the confession by the accused person is direct and positive and the ingredients of the offence of murder have been proved beyond reasonable doubt, it can be used to convict the accused. See: Adio v. State (1986) 2 NWLR (pt. 24) 581; Uluebeka v. State (2000)7 NWLR (pt.655) 404; Alarape v. State (2001) 5 NWLR (pt. 705) 79; Solola v. State (2005) 11 NWLR (Pt.937) 460.
The ingredients of the offence namely:-
(a) The death of the deceased;
(b) It was caused by the act of the accused; and
(c) The act or omission of the accused causing the death was intentional with knowledge that death or grievous bodily harm was its probable consequence –
were all proved beyond reasonable doubt. The learned trial Judge evaluated all the evidence before convicting the accused/appellant. On appeal to the Court of Appeal, the evidence was reviewed and concurrent findings of facts were made before dismissing the appeal.
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This Court has further considered the appeal and sees no reason whatsoever to interfere with the concurrent findings of the two lower Courts. Consequently the appeal is devoid of merit and is accordingly dismissed. The conviction and sentence of the appellant to death by hanging which was affirmed by the Court of Appeal, Benin Division on 12 July, 2012 in CA/B/318C/2006 is further affirmed by me. The appeal is accordingly dismissed.
SC.505/2012