Kingsley Okoro V. The State (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMIJU, J.C.A (Delivering the Leading Judgment)

This is an appeal against the judgment of the delta State High Court delivered by Hon. Justice Ebowei Tobi on 28th July 2008. The facts that led to this appeal are as follows:

The Appellant and the deceased were husband and wife living together.

The Appellant was the Pastor and Founder of a Christian Ministry, the Great Faith Ministry at Owhase, Ovwian Town in the Udu Local Government Area of Delta State. They had no children together even though by a previous marriage the Appellant had several children. The couple lived alone together at the time of the incident. The uncontroverted facts are that on the night of March 25th 2005, the Appellant went alone to attend night vigil prayer session at Ugborikoko Effurun in the Church of one Pastor Phillip Oruvwedje.

On his return the following morning, he slept and woke up in the afternoon. His wife accused him of having slept with a mistress. He denied this, he then declined to go with his wife to a pre-arranged social event. She then removed her outing clothes and started entertaining her friends. The Appellant started looking for his car key but could not find it. His wife denied hiding the key from him. He took a can of petrol from their room and he intentionally spilled some petrol on the rug in their room.

The deceased who had gone to remove clothes from the clotheslines was hanging the clothes in the wardrobe in their room. The Appellant look a match and dropped it on the rug and the room caught fire. The deceased was severely burnt by the fire and she died on the 31st March, 2005. The Appellant was initially arrested and charged with attempted murder and when the deceased died, he was charged with murder.

At the trial, the Appellant pleaded not guilty to the charge. The state called three witnesses and tendered three Exhibits, namely Ex. ‘A’ the statement of the Deceased, Exh. ‘B’- the statement of the Appellant and Exh. ‘C’ another statement of the Appellant. The Appellant on his part gave evidence on his own behalf and called no witness. At the end of the trial, the Judge found the Appellant guilty and convicted him of the offence of murder and sentenced him to death to be hanged by the neck.

The Appellant has appealed to this court vide notice of appeal filed on the 14/6/08 on pages 111-113 of the record.

Let me first clarify an issue raised at the hearing of this appeal. Learned Appellant’s Counsel drew our attention to the fact that he had filed an addendum as it were to the Appellant’s brief which was an argument on the competence of the Appellant’s notice of appeal. On a previous hearing of this appeal, this court had queried the competence of the Appellant’s notice of appeal on the ground that after the Appellant and his witness had duly signed the notice, the Appellant’s Counsel also proceeded to sign same at the end of it. The Learned Respondent’s Counsel in my view properly conceded that the notice of appeal as filed was proper in law.

Suffice it to say on this point that Or 17 r 4(1) & (2) of the Court of appeal Rules are to the effect that the notice of appeal shall be signed by the Appellant himself provided that where strict compliance had been compromised, this court can entertain the appeal if satisfied that the intending Appellant had exhibited a clear intention to appeal to this court against the decision of the lower court.

There is no doubt therefore that the Appellant having signed the notice of appeal himself as required by law the surplusage of the signature of his counsel is of no moment. I therefore hold the opinion that the notice of appeal is competent and it is hereby declared so.

The Appellant filed Appellant’s brief on 5/3/09 while the Respondent’s brief was filed on 29/11/11. The Appellant’s brief settled by J. O. Eweibo identified 2 issued for determination as follows:

i. Whether the learned trial judge was right in convicting and sentencing the Accused/Appellant to death for the offence of murder based on Exhibits B and C alone held to be confessional statements of the offence of murder.

ii. Whether in the absence of Exhibits B and C there remains any cogent evidence adduced by the prosecution to contradict the Accused/Appellant’s evidence on oath and to sustain the finding of guilt, the conviction and the sentence.