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‘’Supreme Court Only Interfere In Concurrent Findings Of Two Lower Courts If …’’



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/IlC/2004. The Charge read as follows: 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.

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 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 PW l 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 pm. 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 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.

“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 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 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 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.

“The same scenario did not play out in Exhibit ”A” and ”D” 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 appellant criticized the admission of Exhibit ‘D on the evidence of a single witness in the trial within trial. The learned trial Judge believed the sole evidence 0f the PWl 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 otside 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 ; and (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 Uwazboe V. State (2007) 6 NWLR (Pt. 1031) 606.

It is settled law that once a confessional statement is 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. 665) 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. 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.

Kumai Bayang Aka’ahs, JSC


Ayo Asala Esq Appears with E. M. Odje Esq. For the Appellant.
Peter Mrakpor, Hon. Attorney-General and Commissioner for Justice, Delta State with him 0. F. Enenmo, Director of Appeals, C. O. Agbagivu, Assistant Director and S. N. Nwanne Esq. for the Respondent.



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