Victor Onyeamechi Okoh V The State (2016)
LAWGLOBAL HUB Lead Judgment Report
MUSA DATTIJO MUHAMMAD, J.S.C.
This is an appeal against the judgment of the Court of Appeal, Benin Judicial Division, the Lower Court, delivered on the 28th day of June, 2013 affirming the appellant’s conviction and sentence by the Delta State High Court the trial Court, for the murder of his wife, Patricia Okoh.
The appellant was arraigned at the Trial Court on a one count charge of murder, punishable under Section 319(1) of the Criminal Code CAP 48 Vol. II, Laws of the defunct Bendel State, 1976 applicable to Delta State. In the Count, he is alleged to have murdered Patricia Ohoh, his wife, on the 17th day of February, 2010 at Idumbiri Farm Road within Owa Oyibu Judicial Division of the Trial Court. The Appellant pleaded not guilty and the matter proceeded to trial at the conclusion of which he was convicted as charged. Dissatisfied, he appealed to the Lower Court which found no merit in the appeal, dismissed same and affirmed the trial Court’s judgment. Still aggrieved, the appellant has further appealed to this Court on a Notice containing four grounds of appeal filed on 24th July, 2013.
With
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the withdrawal of his second issue and its being struck-out, the lone issue abiding for the determination of the appeal distilled in the appellant’s brief settled by Ekemejero Ohworvoriole Esq, reads:-
“Whether the Lower Court was right when it affirmed the trial Court’s decision that the guilt of the appellant was proved beyond reasonable doubt having regard to the evidence adduced before the Court”
A similar issue has been distilled in the respondent’s brief settled by Enenmo, D.F, a Deputy Director in the Delta State Ministry of Justice. Appellant’s lone issue will inform the determination of his appeal.
On the issue, learned appellant’s counsel submits that the respondent has not discharged the burden the law places on it. It is not enough for the respondent to prove the death of the deceased. The respondent, it is contended, must further prove the fact that the death ensued from the act of the appellant done with either the intention of causing the death of the deceased or grievous bodily harm to his victim. The two Courts,it is argued, relied on circumstantial evidence, inferred from Exhibit P2 only, the purported confessional
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statement of the appellant. Outside Exhibit P2, it is submitted, the respondent led no evidence to establish that the content of the purported confessional statement is probable and reliable- Relying on State v. Ogbubunjo (2001) NWLR (Pt. 698) 576, Millar v. State (2005) 8 NWLR (pt. 927) 236 at 252 and Ogidi v. State (2005) 5 NWLR (Pt.918) 28 at 319, learned appellant’s counsel submits that the two Courts have erred in their reliance on the scanty evidence on record to convict the appellant. Further relying on the case of Uwakeweghunya v. State (2005) 9 NWLR (Pt. 930) 227 at 249 250 and Akang v. State (1971) 1 ALL NLR 46, learned counsel contends that the appellant who, from the content of Exhibit P2, was provoked by the deceased, is not guilty of murder but manslaughter. The non-consideration of the defence, by the two Courts, it is contended is fatal to their decisions. On the whole, learned counsel concludes, the issue on being resolved in appellant’s favour, the appeal as well should be allowed.
Responding, learned respondent’s counsel submits that the appellant is rightly convicted on his
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confessional statement alone. The said statement, counsel argues, being cogent, positive and direct does not require any corroboration to enable reliance on it. In any event, beside the confessional statement, Exhibit P2, evidence abound corroborating the content of the confessional statement. The evidence of PW2 and PW3, it is submitted, provide this material corroboration. Citing the decisions in Egboghonome v. State (1993) 7 NWLR (Pt. 306) 385, Alarape v. State (2001) 5 NWLR (Pt. 705) 79 and Edamine v. State (1996) 3 NWLR (Pt.438) 530 at 536, learned counsel urges that this Court has no cause to disturb the concurrent findings of the two Courts below that have not been shown to be perverse.
Finally, learned respondent’s counsel contends that the defence of provocation, from the evidence on record, does not commit the act for which he was convicted in the heat of passion devoid of time for reason to intervene. On the authority of Akpan v. State (2001) 90 LRCN 2849, the decision of the Lower Court, learned counsel urges, should be sustained.
The appeal raises issues that have long been settled by this Court. It is certainly not the law that an
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accused person cannot be convicted purely on his confessional statement. For such a conviction to endure, however, the confessional statement must be cogent, direct and positive. Once so, being a clear admission of all the ingredients of the offence the accused stands trial for, a conviction arising from the confessional statement will, on appeal, be sustained. In Alli Dogo v. The State (2013) LPELR 20175 (SC) my learned brother Ngwuta, JSC, restated the principle thus:-
“Once there exist a confessional statement which is direct, cogent and unequivocal to the fact that the appellant murdered the deceased, the prosecution need not prove any of the three elements.”
In the case at hand where Exhibit P2, appellant’s confessional statement direct, cogent and unequivocal to the fact of killing his wife, the respondent absolved from further proof of any or all the ingredients of the offence of murder the appellant is tried and convicted for. See also Suberu v. State (2010) 1 NWLR (Pt.1176) 494, Edhigere v. State (1996) 42 LRCN 1082 at 1812. Yusuf v. State (1976) SC 176 and Dawa v. State (1980) 8 11 SC 236. At page 170 of the record, the Lower Court
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held as follows:-
“… The Appellant made a confessional statement to the police which was admitted in evidence as Exhibit P2 after the Lower Court made a finding consequent to a trial within trial, that the statement was voluntarily made, I have painstakingly perused Exhibit P2 and which was copiously re-produced in the judgment of the Lower Court at pages 118 119 of the record, and I am in no doubt that it is indeed confessional in nature as the Appellant clearly narrated therein that he killed his wife and how he did the killing. The position of the law no doubt is that a properly admitted confessional statement is part of the evidence adduced by the prosecution in the proof of its case. See EGHOGHONOME V. STATE [1993] 7 NWLR (Pt.306) 383.”
The foregoing finding of the Lower Court is unassailable.
The hopelessness of appellant’s case does not indeed end with the very finding. It is respondent counsel’s further submission, and rightly too, that outside Exhibit P2, appellant’s confessional statement, evidence abound corroborative of the content of the confessional statement. The evidence of PW2 and PW3, it is further submitted, provide
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the corroboration. Being borne out by the record of appeal, these fats must be conceded to the respondent. At page 121 of the record is the trial Court’s finding in relation to the evidence of PW2 and particularly PW3, the Inspector who investigated appellant’s case in the course of which he recorded Exhibit P2 inter-alia as follows:-
“In the present case, the prosecution adduced the following piece of evidence amongst others: that a sack emitting foul odour was recovered along the farm road. When the sack was untied by the mortuary attendant at Khife’s clinic, they discovered the body of the dead woman, with her head, hands and two legs cut off. The accused took them to the spot where he dumped the sacks, it was not found. (it is worthly to note that the accused took them to this spot after the recovery of the sack).
The accused also took them to the bush from where they recovered the deceased leg. He showed them where he had dug the shallow grave, the spot where he killed the deceased, the cutlass he used in killing her. Aside this, corroborative piece of evidence, PW2 said that he asked him for the cutlass file, he saw him ride off to the
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farm in company of his wife, the deceased. In my opinion, the evidence adduced by the Prosecution witnesses remained unshaken during cross-examination. They corroborated the content of exhibit P2”.
(Underling mine for emphasis).
In affirming this crucial finding, the Lower Court held further at page 170 of the record thus:-
“I have hereinbefore stated that Exhibit P2 which it was bound to evaluate along with the evidence adduced in the case. The Lower Court glaringly did this in its judgment and also duly tested it against other facts in this case in order to determine their truthfulness. At the conclusion of the exercise, the Lower Court ascribed probative value to Exhibit P2.”
These findings which clearly draw from the evidence on record have not been shown by the appellant to have evolved consequent upon wrong application of any principle of law on established facts. This Court only interferes with concurrent findings of fact if same are perverse. See Iyaro v. State (1988) 1 NWLR (pt 69) 256. In the instant case, the findings of fact the appellant attacks are not.
Lastly, learned appellant’s counsel contends that the appellant is
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entitled to the defence of provocation to reduce his conviction and sentence to the offence of manslaughter instead of murder. Learned respondent’s counsel on a firm terrain in his insistence that the defence does not avail the appellant. The trial Court is only bound to consider defences available to the appellant from the evidence before it. The appellant on whom lies the burden of proving provocation neither raised the defence in Exhibit P1 and P2 nor alluded to the defence in his evidence at trial. The Lower Court could not have considered the defence that was neither raised at the trial Court nor raised as a fresh issue with its leave. See Nwuzoke v. The State (1988) 1 NSCC 361 and Gabriel v. State (1989) 3 NSCC 351. In any event, given the evidence on record, I am of the firm and considered view that the appellant who in the course of killing his wife remained the master of his mind and action cannot be said to have been provoked. Since the defence does not avail him, there is no mitigating circumstance to justify interference with the decision of the Lower Court.
Appellant’s lone issue is resolved against him and his unmeritorious appeal dismissed.
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His conviction and sentence by the trial Court for the murder of his wife, Patricia Okoh under Section 319(1) of the Criminal Code CAP 48 Vol. II Laws of the defunct Bendel State 1976 as applicable to Delta State is hereby further affirmed.
SC.456/2013