FELIX OKPAKO V. THE STATE (2012)

FELIX OKPAKO V. THE STATE

(2012)LCN/5575(CA)

In The Court of Appeal of Nigeria

On Thursday, the 12th day of July, 2012

CA/B/318C/2006

RATIO

CRIMINAL LAW: MEANING AND NATURE A CONFESSION

A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. Confessions, if voluntary, are deemed to be relevant facts as against the persons who made them only. See Section 27(1) & (2) of the Evidence Act. Once a confessional statement of guilt is shown to have been made freely and voluntarily, be it judicial or extra-judicial, if it is direct, positive and properly admitted, it constitutes proof of guilt and is sufficient to sustain and ground a conviction, so long as the court is satisfied as to its truth. See the case of: Akpan v. state (2001) 15 NWLR (Pt. 737) p.745.

Although an accused person can be convicted solely on his confessional statement, it is desirable to have some evidence outside the confession which would make it probable that the confession was true. See the cases of: (1) Effiong v. State (1998) 8 NWLR (Pt. 562) p. 632; (2) Nwaebonyi v. State (1994) 5 NWLR (pt. 343) P. 13 and (3) Ismail v. State (2008) 15 NWLR (Pt. 1111) p.593. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.

EVIDENCE: PRINCIPLE GOVERNING OBJECTION TO ADMISSIBILITY OF A CONFESSIONAL STATEMENT

APPEAL: ATTITUDE OF THE APPELLATE COURT TOWARDS THE FINDINGS OF THE TRIAL JUDGE

It is settled that an appellate court should not disturb a trial Judge’s findings that a confession was voluntary except the Judge has erred in legal principle or made a completely wrong assessment of the facts – see the case of: Sodiya v. The State (2011) All FWLR (Pt.560) P. 1357. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.

EVIDENCE: WHETHER A FREE AND VOLUNTARY CONFESSION CAN WARRANT CONVICTION

It has also been held in a plethora of cases, that in particular in Nigeria, a free and voluntary confession of guilt by a prisoner, if it is direct and positive and is duly made and satisfactorily proved, it is sufficient to warrant conviction without any corroborative evidence, so long as the court is satisfied as to the truth of the confession. See; Edet Obosi v. The State (1965) NMLR 119; Paul Onochie & Ors. V. The Republic (1960) NMLR 307; (1965) 1 SCNLR 204; Onuoha v. The State (1987)4 NWLR (Pt. 65) 331. In Basil Akpa v. The State (2008) 8 SCM 68 at 79 & 86; (2008) 14 NWLR (Pt. 1106) 72 at 92 paras. B – C where the court considered a similar confessional statement, it was held as follows:

“The above is a clear, clean, unequivocal and direct confessional statement of the appellant. He did not hide his involvement in the killing of Ikechukwu. He made a very clean breast of his level of involvement which was deep, penetrating and killing. In law where an accused person confesses to a crime, in the absence of an eye witness of killing, he can be convicted on his confession alone once the confession is positive, direct and properly proved”.

See Milla v. The State (1985) 3 NWLR (Pt. 11) 190, Achabua v. The State (1976) 12 SC 63; Obasi v. The State (1965) 1 NMLR 119; Atano v. Attorney General Bendel State (1988) 2 NWLR (Pt. 75) 201; Bature v. The State (1994) 1 NWLR (Pt. 320) 267; Abdullahi Ada v. The State (2008) 6 SCM 1; (2008) 13 NWIR (Pt. 1103) 149. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.

CRIMINAL LAW: WAYS OF PROVING THE GUILT OF AN ACCUSED

In discharging the burden of proof on the prosecution, the guilt of an accused can be proved by:

The confessional statement of the accused; or
Circumstantial evidence; or
Evidence of an eye witness of crime’

The evidence must cogently establish the essential elements of the offence charged. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.

JUSTICES

RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria

OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria

CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria

Between

FELIX OKPAKO Appellant(s)

AND

THE STATE Respondent(s)

OYEBISI FOLAYEMI OMOLEYE, J.C.A., (Delivering the Leading Judgment): This is an appeal from the judgment of the High Court of Delta State sitting in Isiokolo, delivered on 19th December, 2005. In the judgment, the Appellant was convicted for the offence of murder and sentenced to death by hanging. The judgment is at pages 43 to 52 of the record of appeal. Dissatisfied with the judgment, the Appellant appealed against it to this Court. The Notice and grounds of appeal is at pages 53 to 54 of the record.
The brief background facts of this matter as stated in the Respondent’s brief of argument are that, on the night of 11th October, 2002, the Appellant stabbed his half-sister, Eloho Okpako on the neck with a kitchen knife. The injuries sustained by her later led to her death. The Appellant bolted away after the incident but the Police after three days of searching apprehended and charged him to court. The Appellant was subsequently arraigned on a one count charge as follows:

STATEMENT OF OFFENCE
Murder, punishable under Section 319(1) of the Criminal Code, Cap. 48, Vol. II, Laws of Bendel State, 1976, as applicable in Delta State.
PARTICULARS OF OFFENCE
Felix Okpako (m) on the 11th day of October, 2002 at Orior Town within Isiokolo Judicial Division murdered one Eloho Okpako (f).

In proof of the Respondent’s case against the Appellant, the Respondent called four witnesses and tendered some exhibits in evidence. The Appellant gave evidence in his defence but called no witnesses. The Appellant denied the allegation that he stabbed the deceased with a knife. At the conclusion of trial, the learned trial Judge held that the prosecution had proved the charge of murder against the Appellant beyond reasonable doubt and consequently convicted and sentenced him to death.
In the Appellant’s brief of argument dated and filed on 4th June, 2008, the learned counsel for the Appellant, Mr. Ojo Abijogun of the law office of Ojo M. Abijogun & Co., formulated for the determination of this appeal, two issues from the two grounds of the original notice and grounds of appeal and four grounds of the Additional grounds of appeal, leave to file the latter having been sought on behalf of the Appellant and granted by this Court. The said two issues read thus:
1. Whether the learned trial Judge was correct to have in the circumstances of this case, convicted the Appellant for the offence of murder relying heavily on a confessional statement that was highly discredited, and that was very suspicious?
2. Whether the trial Judge was correct to have convicted the Appellant for the offence of murder when it was not conclusively proved that the Appellant caused the stab wound injury which led to the death of Eloho Okpako?
On the other side, the Respondent’s learned counsel, Chief V.E Otomiewo, Hon, Attorney-General & Commissioner for Justice of Delta State (as he then was) in the Respondent’s brief of argument dated 9th April, 2010, which was deemed properly filed and served on the same date, also formulated two issues for the determination of the Appeal. The two issues are that:
(i) Whether the learned trial Judge was right to have relied on exhibit D, the free, voluntary and direct extra judicial confessional statement of the Appellant in convicting him?
(ii) Whether having regard to the state of evidence before the trial Court, the learned trial Judge was not right in holding that the prosecution did prove the case of murder against the Appellant beyond reasonable doubt?
By reason of the nearly identical issues formulated by the learned counsel for both parties, I will adopt the two issues formulated by the Appellant’s counsel and I believe that these are sufficient for the resolution of this appeal. I will now consider the issues seriatim.

ISSUE ONE
Whether the learned trial Judge was correct to have in the circumstances of this case, convicted the Appellant for the offence of murder relying heavily on a confessional statement that was highly discredited, and that was very suspicious?
The learned counsel for the Appellant conceded that, it is trite law that a court may convict an accused person on his confessional statement if it is positive and direct. It is equally established that if the only evidence available against an accused person is a confessional statement, the court ought to be slow in convicting on such a confessional statement. On this legal principle he referred to the case of: Kasa v. State (1994) 5 NWLR (Pt. 344) p.269 at p. 285. He contended that exhibit D, the alleged confessional statement of the Appellant was not made voluntarily. A trial-within-trial was rightly conducted and the learned trial Judge ruled that it was voluntarily made. Learned counsel went further to state that he is not as a necessity contending with the admissibility of exhibit D, but majorly with the weight that has been attached to it by the trial Court. According to him, the trial Court ought not to have considered as true the confessional statement like exhibit D, without bringing before it the obtained and authenticated it, as a witness. He relied on this on the case of: Omega Bank Nigeria Plc. V. O.B.C. Ltd (2005) All FWLR (Pt. 249) p. 1964 at p. 1999 4 paras. E – F. He further submitted that though taking an accused person with his purported confessional statement before a Superior police Officer for authentication has been held not to be a requirement of law, it is a practice which if not followed would also not necessarily vitiate or make the statement less confessional, however, in such a situation the court ought not to convict an accused person, if the confessional statement is retracted. This is because it will amount to the Appellant not being given the opportunity of cross-examining the person who took the statement, to test the veracity of its content.
The learned counsel for the Respondent submitted that, the law is settled that the evaluation of evidence and the ascription of probative value to such evidence are the primary functions of a court of trial. That is, it is the trial court that has the exclusive jurisdiction on matters of appraising evidence and ascribing probative value to the evidence of witnesses whom it had the opportunity of seeing, hearing and observing while in the witness box. Where a court of trial unquestionably evaluates the evidence, justifiably appraises the facts and arrives at a conclusion on such findings of fact, it is not the business of an appellate court to substitute its own views for those of the trial court. He relied on this point on the cases of: (1) Ogunzee v. The State (1998) 5 NWLR (Pt. 551) p. 521 at p. 557 ‘ paras. F – G, p. 559, paras. C – D and (2) Bakare v. The State (1987) 1 NWLR (Pt.52) p. 579. In this instant case, learned counsel submitted that the learned trial Judge both in his ruling on the trial-within- trial and the judgment being appealed, the evidence adduced before him was properly evaluated and probative value was equally ascribed to it. All the prosecution was required to do was to call enough material witnesses to prove its case. In this case, the prosecution, that is the Respondent called enough material witnesses to prove its case against the Appellant. Reliance was placed on the cases of: (1) Okonofua v. The State (1981) 6-7 SC p. 1; and (2) Adeja v. State (1979) 6 – 9 SC p. 18.
On the issue of authenticity of exhibit D, Respondent’s learned counsel contended that on the state of evidence before the trial Court, the Police Officer who had been transferred to another station was not a material witness for the prosecution. An examination of the record shows clearly that the allegation of torture which led to the trial-within-trial was made by the Appellant herein against PW4 and not the said recorder of exhibit D. Indeed Appellant stated that PW4 was one of those who took his statements. Therefore, the proper person in the circumstance to answer the allegation of torture was PW4. It should be noted that the objection to the admissibility of the statement was not that the Appellant did not make the statement but rather that he made the statement involuntarily. The fact of the statement being made was never in issue. PW4 gave unchallenged evidence that he led a team of Police investigators to investigate the case. It is settled law that, where a confessional statement is direct, positive and unequivocal as to the admission of guilt by an accused person, the statement is enough to ground the conviction of the accused person. He referred to the cases of: (1) Nwachukwu v. The State (2007) All FWLR (Pt.390) p. 1380 at p. 1406 and (2) Olalekan v. The State (2001) 18 NWLR (Pt. 746) p. 793.
The retraction by an accused person of an extra judicial confessional statement in his evidence on oath during trial is of no moment once the trial Court is satisfied as to its truth and the trial Court can rely solely on the confessional statement to ground a conviction. On this position of law, he relied on the cases of: (1) Egboghonome v. The State (1993) 7 NWLR (Pt. 306) p. 383; (2) Nwangbomu v. The State (1994) 2 NWLR (Pt.327) p. 380 and (3) Dibie v. The State (2007) All FWLR p.83 at p. 114 – 115 paras. H – B. The Respondent’s counsel conceded that exhibit D was never taken before a Superior Police Officer for confirmation, however, this alone cannot derogate from its status as a confessional statement which the trial Court can act on. Also the fact that the Appellant made two statements exhibits A and D within seven days interval, wherein he denied stabbing the deceased (exhibit A) and subsequently admitted stabbing the deceased (exhibit D) is a matter within the purview of the Appellant only.
I have duly and thoroughly considered the submissions of the learned counsel for both parties herein as well as the printed record on this issue.
A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. Confessions, if voluntary, are deemed to be relevant facts as against the persons who made them only. See Section 27(1) & (2) of the Evidence Act. Once a confessional statement of guilt is shown to have been made freely and voluntarily, be it judicial or extra-judicial, if it is direct, positive and properly admitted, it constitutes proof of guilt and is sufficient to sustain and ground a conviction, so long as the court is satisfied as to its truth. See the case of: Akpan v. state (2001) 15 NWLR (Pt. 737) p.745.

The principle governing objection to admissibility of confessional statement is that, where an objection is taken to the admission of confessional statement on the grounds of duress or promise or threat, a trial-within-trial must be conducted. In the instant matter, the alleged confessional statement of the Appellant was sought to be tendered through PW4 but the learned counsel for the Appellant objected to this. Pages 28 to 31 of the record of appeal shows that a trial-within-trial was rightly conducted. The Appellant gave evidence that, he was threatened with a gun, beaten with a wood and forced to sign the said statement which was recorded by PW1. The considered ruling of the trial Court in the trial-within-trial is at pages 32 to 34 of the record of appeal. In it, the learned trial Judge ruled that he did not believe that the Appellant was tortured, consequently the confessional statement of the Appellant was admitted in evidence as exhibit D. It is trite that, where as in the instant case the confessional statement is adjudged voluntarily made, it is admissible against the Appellant and its subsequent retraction is immaterial. To put this in other words, the question whether a statement is voluntary is a question of fact and therefore within the purview of the trial Judge. It is settled that an appellate court should not disturb a trial Judge’s findings that a confession was voluntary except the Judge has erred in legal principle or made a completely wrong assessment of the facts – see the case of: Sodiya v. The State (2011) All FWLR (Pt.560) P. 1357. In the instant case, I have carefully examined the findings of the learned trial Judge in relation to the alleged confessional statement of the Appellant, it is my strong opinion that the learned trial Judge did not err either in this legal principle or make a wrong assessment of the facts placed before it. Therefore, I am not in position to fault or gainsay about the findings of the trial Court in this regard. For the trial Court had the first hand opportunity of considering inter alia the testimonies of the Appellant and PW1. See the cases of: (1) Saidi v. State (1982) NSCC Vol.713 p. 70; (2) Oseni v. State (2012) 5 NWLR (Pt. 1293) P.351 and (3) Ogullo v. State (2011) 7 NWLR (Pt. 1246) P.314. See also the case of: Usman v. State (2011) 3 NWLR (Pt. 1233) p. 1.

What is more, a confession is usually more often denied or retracted, therefore a mere denial without more, even at the earliest opportunity, cannot lend weight to the denial. The denial of the Appellant herein was a bare statement devoid of any supporting facts and it stood only on the ipse dexit of the Appellant.
It is my strong view and I hold that, the learned trial Judge in the instant case having found that the Appellant’s confessional statement was voluntarily given, the Judge was entitled to act on such admissible statement and convict the Appellant as he did, on the basis of its adverse effect on the plea of not guilty entered by the Appellant. – see the case of: Usman v. State supra. What is more, it is established that the conviction of an accused person is considered to be best secured on the basis of his/her adverse confessional statement which has been lawfully received. In the case of: Oseni v. State supra at pgs.393 -394, paras. F- C, on whether a court can convict on an uncorroborated confessional statement of an accused person, the learned Ariwoola, J.S.C., had the following to say:
It has also been held in a plethora of cases, that in particular in Nigeria, a free and voluntary confession of guilt by a prisoner, if it is direct and positive and is duly made and satisfactorily proved, it is sufficient to warrant conviction without any corroborative evidence, so long as the court is satisfied as to the truth of the confession. See; Edet Obosi v. The State (1965) NMLR 119; Paul Onochie & Ors. V. The Republic (1960) NMLR 307; (1965) 1 SCNLR 204; Onuoha v. The State (1987)4 NWLR (Pt. 65) 331. In Basil Akpa v. The State (2008) 8 SCM 68 at 79 & 86; (2008) 14 NWLR (Pt. 1106) 72 at 92 paras. B – C where the court considered a similar confessional statement, it was held as follows:
“The above is a clear, clean, unequivocal and direct confessional statement of the appellant. He did not hide his involvement in the killing of Ikechukwu. He made a very clean breast of his level of involvement which was deep, penetrating and killing. In law where an accused person confesses to a crime, in the absence of an eye witness of killing, he can be convicted on his confession alone once the confession is positive, direct and properly proved”.
See Milla v. The State (1985) 3 NWLR (Pt. 11) 190, Achabua v. The State (1976) 12 SC 63; Obasi v. The State (1965) 1 NMLR 119; Atano v. Attorney General Bendel State (1988) 2 NWLR (Pt. 75) 201; Bature v. The State (1994) 1 NWLR (Pt. 320) 267; Abdullahi Ada v. The State (2008) 6 SCM 1; (2008) 13 NWIR (Pt. 1103) 149.

In the instant case, the confession of the Appellant to stabbing the deceased in the neck is positive and direct. He had the opportunity of committing the offence of murder as alleged by the Respondent. The Respondent in my mind proved the alleged crime by tendering the said statement and the learned trial Judge properly admitted same in evidence as exhibit D. Although the alleged weapon used by the Appellant to stab the deceased on the neck was not recovered, nevertheless, exhibit D, was corroborated by the testimony of PW2, the medical doctor who performed post mortem examination on the deceased. PW2 stated that he established the presence of a stab wound on the left side of the neck of the deceased. That in his opinion, the deceased died as a result of hemorrhage due to the cutting of the blood vessels in the neck, that is, the left carotene artery and jugular vein. And that the said stab injury may have been inflicted using a sharp object, see pages 24 to 25 of the record of appeal.
It is settled that the prosecution is not obliged to call all the material witnesses in order to establish its case against an accused person. Hence, failure of the Respondent to field one of the Police Officers who investigated the crime alleged to have been committed by the Appellant was not fatal to the case of the Respondent against the Appellant at the trial Court.

PW4 who witnessed the recording of exhibit D was competent to testify on it. PW4 at page 29 lines 17 to 21 testified under cross-examination that his team mate recorded exhibit D in his presence and he saw that exhibit D is a confessional statement.
I agree with the learned counsel for the Respondent that, the failure also of PW4 or any of his team members to take the confessional statement, exhibit D with the Appellant for endorsement by a Superior Police Officer is not fatal to the Respondent’s case. For this is just a practice that has been employed over time and there is no law compelling the strict observance of this “ritual” also known as “Judge’s rule”. This so called breach of the Judge’s rule does not render a confessional statement inadmissible – see the cases of: (1) Oguagu v. State (1994) 9 NWLR (Pt. 366) p. 1; (2) Abirifor v. State (2009) All FWLR (Pt. 471) p. 873 and (3) Usman v. State (2011) 3 NWLR (Pt. 1233) p. 1.
Therefore, the question: whether in the given circumstance of this case, the trial Court properly relied on only the confessional statement, exhibit D in convicting the Appellant, will be and it is answered in the affirmative. I do not agree with the submission of the learned counsel for the Appellant, that exhibit D was highly discredited and very suspicious. I hold that exhibit D was lawfully admitted in evidence, after the trial-within-trial. The submission of the Appellant’s counsel in this regard is misconceived. On the contrary, I am at one with the Respondent’s learned counsel that, although the trial Court could convict the Appellant solely on his confession in exhibit D, the evidence of PW2 served as a corroboration of exhibit D in all material factual details. It is for the above reason that this issue fail to avail the Appellant, I therefore resolve it against him and in favour of the Respondent.

ISSUE TWO
Whether the trial Judge was correct to have convicted the Appellant for the offence of murder when it was not conclusively proved that the Appellant caused the stab wound injury which led to the death of Eloho Okpako?
The Appellant’s learned counsel restated the position of the law that in a murder charge, the burden is on the prosecution to prove the following elements:
(a) that the deceased had died;
(b) that the death of the deceased was caused by the accused person and
(c) that the act or omission of the accused which caused the death of the deceased was intentional and with knowledge that death or grievous bodily harm was its probable consequence.
He rested his submission on the case of: Nwaeze v. State (1996) 2 SCNJ p.42 at p.50. The burden of proof which rests on the prosecution, never shifts. In this case, according to learned counsel, when the evidence as to who stabbed the deceased was not forthcoming from the prosecution, the learned trial Judge during his evaluation of the available evidence, tacitly shifted the burden of proof from the prosecution to the Appellant. There was no iota of evidence from the prosecution to discharge the burden placed upon it by law. In learned counsel’s opinion, since exhibit D has no evidential value capable of sustaining the conviction of the Appellant for the offence of murder there is a doubt as to the guilt of the Appellant and the learned trial Judge ought not to have convicted and sentenced the Appellant.
On the other part, learned counsel for the Respondent submitted that the Appellant having been charged with the offence of murder punishable under Section 319(1) of the Criminal Code Cap. 48 Volume II, Laws of Defunct Bendel State of Nigeria, as applicable in Delta State, the prosecution was required to prove beyond reasonable doubt the following:
(a) that the deceased had died;
(b) that the death of the deceased was caused by the accused and
(c) that the act or omission of the accused causing the death of the deceased was intentional and with knowledge that death or grievous bodily harm was its probable consequence.
He relied on the cases of: (1) Durwode v. The State (2001) All FWLR (Pt. 36) P.950 at P. 974 paras. F – G and (2) State v. Ogbubunio (2001) All FWLR (Pt. 37) P.1097. Furthermore, the duty on the prosecution to prove the essential ingredients of murder may be done by:
(a) confessional statement;
(b) circumstantial evidence;
(c) direct evidence – that is evidence of an eye witness.
In support of this legal position, he referred to the case of: Fatilewa v. The State (2007) All FWLR (Pt. 347) p. 695 at p. 719, paras. C – D. The death of the deceased in this case was never an issue. There is no dispute that the deceased Eloho Okpako, the thirteen (13) year old half-sister of the Appellant died. The Respondent’s learned counsel submitted that the prosecution presented a plethora of evidence both confessional and circumstantial which proved the guilt of the Appellant beyond reasonable doubt. And his conviction by the trial Court was justified. He referred to Section 27(1) of the Evidence Act which defines a confession as, an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime. It follows that once an accused person makes a statement under caution saying or admitting that he committed the offence with which he was charged or creating the impression that he committed the offence charged, the statement becomes confessional. PW4 gave evidence before the trial Court and through him the extra judicial confessional statement made by the Appellant was properly tendered. The statement was admitted by the trial Court as exhibit D after the conduct of a trial-within-trial. According to the learned counsel, exhibit D is direct, positive and unequivocal as to the fact that the Appellant inflicted on the deceased the stab injury which PW2 stated caused the death of the deceased. He disagreed with the submission of Appellant’s counsel that the trial Judge shifted the burden of proof from the prosecution to the Appellant. An accused person who confesses to a crime in the absence of an eye witness to a killing, can be convicted on his confession alone if the confession is positive, direct and properly proved. He relied on the case of: Mohammed v. The State (supra) at p.60, paras. C- E, Hence, although a free and voluntary confession is sufficient without further corroboration to warrant conviction for murder, out of an abundance of caution the learned trial Judge sought for and found corroboration of exhibit D in the evidence of PW2, the medical doctor who performed the post mortem examination on the deceased.
Continuing, the learned counsel for the Appellant referred to the first extra judicial statement made by the Appellant which was admitted as exhibit A. He submitted that exhibit A is also a confession within the meaning of Section 27 of the Evidence Act, as it suggests the inference that the Appellant killed the deceased and identifies the Appellant as the person whose act caused the deceased’s death. Exhibit A was admitted in evidence without any challenge from the defence at the trial. Also in his viva voce evidence before the trial Court, the Appellant stated as follows:
We were embroiled in a quarrel myself and the deceased. Through the quarrel I beat her up. I gave her a punch and she fell on the ground. I took to my heels. It was three days afterwards that I heard that Eloho had died.
Learned counsel contended that the trial Court evaluated these other pieces of evidence apart from exhibit D, that is, the contents of exhibit A and the viva voce evidence of the Appellant reproduced above. The entirety of the circumstantial evidence was very compelling, incriminating, cogent, complete, unequivocal and pointed irresistibly at the Appellant as the person who murdered the deceased. The possibility of some other persons, for example one Fidelis in particular, committing the offence is non-existent. In the two extra judicial statements that the Appellant made to the Police and his evidence before the trial Court, he owned up to being the person that committed the offence. Hence, the submissions of the Appellant’s counsel that Fidelis or the Appellant or both of them could have stabbed the deceased was not made out from the evidence adduced before the trial Court. Therefore the said submissions rest in the realm of speculation.
It was further contended by the Respondent’s learned counsel that to plunge a knife into the neck of a human being is to intend to kill or at least cause grievous bodily harm to that person. He referred to the case of: Garba v. The State (2000) FWLR (Pt. 24) P.1448 at p. 1460. He opined that, the learned trial Judge’s finding that the Appellant clearly intended to cause the death of the deceased was supported by copious evidence and was perfectly in order to use exhibit D in the manner he did. The law is settled 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. In this wise, he relied on the cases of: (1) Egboghonome v. The State (1993) 7 NWLR (Pt.306) p.383; (2) Nwangbomu v. The State (1994) 2 NWLR (Pt. 327) P.380 and (3) Akpan v. The State (2001) FWLR (Pt. 75) p. 428 at p. 443- 444.

I have above duly considered the submissions of the learned counsel for both parties on this issue, which in essence is: whether the Respondent proved beyond reasonable doubt the charge of murder preferred against the Appellant to warrant the conviction of the Appellant by the learned trial Judge. In the case of Oseni v. State supra, Adekeye JSC at p. 385, paras. C – H restated pungently the laid down legal principles in this regard as follows:
The burden on the prosecution to prove the guilt of an accused to rebut the presumption of his innocence and the standard that such proof must be beyond reasonable doubt had remained with us since the evolution of crime and is now properly entrenched in our criminal jurisprudence. The concept admitted that proof beyond reasonable doubt does not mean proof beyond all doubt or any shadow of doubt. Our law of evidence had given recognition to this fundamental principle of criminal law and section 138(1) of the Evidence Act reads –
“If the commission of a crime by a party to any proceeding is directly in issue, in any proceeding civil or criminal it must be proved beyond reasonable doubt. Igabele v. State (2006) 6 NWLR (Pt. 975) p. 100; Aigbodion v. State (2000) 4 SC (Pt. 1) Pg. 1; (2000) 7 NWLR (Pt. 666) 686; Agbo v. State (2006) 6 NWLR (Pt.977) Pg. 545; Bakare v. The State (1987) 3 SC Pg. 1; (1987) 1 NWLR (Pt. 52) 579”.

On the contrary, if an accused gives an account which is consistent with his innocence and could be true and is not proved to be untrue, he is entitled to be acquitted. This is because in such scenario a doubt about his guilt has been created. Igabele v. State (2006) 6 NWLR (Pt. 975) pg. 100.

In discharging the burden of proof on the prosecution, the guilt of an accused can be proved by:
1. The confessional statement of the accused; or
2. Circumstantial evidence; or
3. Evidence of an eye witness of crime’
The evidence must cogently establish the essential elements of the offence charged.

The Appellant, Felix Okpako was arraigned on a sole count charge or murder contrary to section 319(1) of the criminal code, cap. 48, Vol. II, Laws of Bendel State, 1976, as applicable in Delta State. The essential ingredients of the offence of murder which the Respondent ought to prove beyond reasonable doubt are:
(a) that the deceased, a human being, died;
(b) that the death of the deceased was caused by an act of the Appellant and
(c) that the Appellant caused the death of the deceased intentionally or with the knowledge that death or grievous bodily harm was a probable consequence of his act.
These three ingredients must co-exist and they must each be proved before the Appellant can be found guilty of the crime.

The evidence of PW1, PW2, PW3 and pw4 before the trial court established that Eloho Okpako died. It was the evidence of PW2, a medical doctor, that the deceased died, that PW3 the father of both the deceased and Appellant identified the corpse of the deceased to him, before he performed post mortem examination on the deceased. Although the Investigating police Officers could not recover the murder weapon, the evidence of PW2 is to the effect that the injury found on the deceased was caused by a sharp object. The confessional statement of the Appellant was tendered. The Appellant retracted the statement on the ground that it was not voluntarily obtained from him, hence the trial-within-trial proceedings at the trial Court to establish the claim of the Appellant. At the end of the proceedings, the learned trial Judge ruled against the Appellant and the statement was accepted in evidence as exhibit D. Further in the case of: Oseni v. State, the learned Jurist, Adekeye, JSC at pgs. 386 to 387, paras. A – F posited as follows:
It is trite that:
A free and voluntary confession of guilt by an accused person if it is direct and positive and satisfactorily proved should occupy the highest place of authenticity when it comes to proof beyond reasonable doubt. That is why such a confession by itself alone is sufficient without further corroboration to warrant a conviction. And there cannot be such a conviction unless the trial court is satisfied that the case has been proved beyond reasonable doubt.
Amusa Popoola Adio & Anor, v. State (1986) 4 SC 194; (1986) 2 NWLR (Pt. 24) 581 Sololo v. State (2005) 11 NWLR (Pt. 937) pg. 460; Uluebeka v. The State (2000) 4 SC (Pt. 1) pg. 203; (2007) 7 NWLR (Pt. 665) 404; Alarape v. State (2001) 4 WRNSC 1 (2001) 5 NWLR (Pt. 705) 79
Ogundipe & Ors v. The Queen (1954) 14 WACA 458.

There is however a duty on the court to test the truth of a confession by examining it in the light of the other credible evidence before the court by inquiry into whether:
(i) There is anything outside it to show that it is true.
(ii) lt is corroborated.
(iii) The facts stated in it are true as far as can be tested
(iv) The accused person had the opportunity of committing the offence.
(v) The accused person’s confession is possible.
(vi) The confession is consistent with the other facts ascertained and Proved’
Akpan v. State (2007) 2 NWLR (Pt. 1019) Pg. 500
Uwagboe v. State (2007) 6 NWLR (Pt. 1031) Pg. 606
Udofia v. State (1984) 12 SC Pg. 139
Dawa v. State (1980) 8 – 11 SC Pg. 236
Ojegele v. State (1988) 1 NWLR (Pt.71) Pg. 414

As I stated above, the Appellant herein objected to the tendering of the alleged confessional statement during the prosecution’s case and raised the involuntariness of the statement, that is, he retracted the statement. After the trial-within-trial, the learned trial Judge ruled at page 34, lines 19 to 27 of the record of appeal, against the Appellant and held as follows:
The inference I could only draw from this, is that the Accused person is being economical with the truth as to what took place in the course of his making his statement to the police (sic). In short, Accused person has not been truthful in the trial within trial (sic) and on the strength of this, I believe the sole evidence of the PW1 in the trial within trial (sic) and go ahead to admit the Accused person’s statement made to the police (sic) on 17th day of October, 2002, as Exhibit “D” in the main trial, as same is believed to have been voluntarily made.
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 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 own 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 62 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.

It is apt to restate herein the age-long established legal principle that generally, proof beyond reasonable doubt simply means the prosecution must establish the guilt of an accused person with compelling and conclusive evidence. It means a degree of compulsion which is a high degree of possibility. To put it in other words, proof beyond reasonable doubt does not mean proof beyond all shadow of doubts and if the evidence adduced by the prosecution is strong against an accused person as to leave only a remote probability in his favour which can be dismissed with the sentence “of course, it is possible but not in the least probable”, the case is considered as having been proved beyond reasonable doubt. See the cases of: (1) Miller v. Minister of Pensions (1947) 2 ER P.372; (2) Bakare v. State (1987) 1 NWLR (Pt. 52) p. 579; (3) Oseni v. State supra; (4) Bolanle v. State (2009) 40 NSCQLR p. 208 and (5) Nwaturuocha v. State (2011) 45 NSCQLR p.278. In the case of Bolanle v. state supra, the learned Mahmud Mohammed, JSC had the following to say at p. 217, paras. G – H and p. 218, paras. A – C:
By virtue of the provisions of Section 138 of the Evidence Act, Cap 112 of the Laws of the Federation, 1990 applicable at the time of the trial of the Appellant, the commission of crime by a person must be proved beyond reasonable doubt does not mean proof beyond all shadow of doubt. If on the entire evidence, the trial court is left with no doubt that the offence was committed by the accused person, that burden of proof beyond reasonable doubt is discharged and the conviction of the accused person will be upheld on the credible evidence of a single witness. If on the other hand, on the totality of the evidence, a reasonable doubt is created, the prosecution would have failed to discharge the burden of proof which the law vests up on it thereby entitling the accused person to discharge and acquittal. See Alonge v. Inspector General of Police (1959) S.C.N.L.R 576; Fatoyinbo v. Attorney General Western Nigeria (1966) W.N.L.R. 4 and State v. Danjuma (1997) 5 NWLR (Pt.506) 512.
Similarly, in the case of: Nwaturuocha v. State supra, at p. 300, paras G – H and p.301, paras. A- C, the learned Fabiyi, JSC restated the legal principle under discuss as follows:
I shall again state it that proof beyond reasonable doubt as evolved by Lord Sankey, L.C in Woolmington v. DPP (1935) AC 485 Is not proof to the hilt as stated by Denning, J., as he then was, in Miller v. Minister of Pensions (1947) 3 ALL ER 373. It is not proof beyond all iota of doubt as stated by Uwais, CJN in Nasiru v. The State (1999) 2 NWLR (Pt. 589) 87 at 98. One thing that is certain is that where all the essential ingredients of the offence charged have been proved or established by the prosecution, as done in this matter, the charge is proved beyond reasonable doubt. See Alabi v. The State (1993) 7 NWLR (Pt. 307) 511 at 523. Proof beyond reasonable doubt should not be stretched beyond reasonable limit’ Otherwise, it will cleave.

It is established that, an appellant who challenges a trial court’s findings of facts bears the onus of satisfying the appellate court that the findings are wrong. Where he is unable to do so and fails to satisfy the appellate court that the trial Court was wrong in its application of the facts to the prevailing and applicable law, his appeal will fail. For it is not the function of an appellate court to re-appraise evidence and come to a different conclusion. This time-honoured rule was succinctly restated in the case of: Olaniyan v. Oyewole (2011) 14 NWIR (Pt.1268) p. 445 by Nweze, JCA, at p. 490, paras. G – H and p. 491, paras. A – E, thus:
This rule, which has a fairly ancient ancestry, Macaulay v. Tukur (1881 – 1911) 1 NLR 35; Akinloye v. Eyiyola (1968) NMLR 92; has been endorsed in a succession of Supreme Court decisions dating back to 1974, Obisanya v. Nwoko (1974) 6 SC 69; Woluchem v. Gudi (1981) 5 SC 291; Obodo v. Ogba (1987) 2 NWLR (Pt. 54) 1 and Ogotogo v. Uche (2005) 14 NWLR (Pt. 945) 226, 246.
On its part, the appellate court also has a duty when considering such findings of fact made by a trial court. These Trinitarian obligations are that the appellate court must:
(a) recognize the onus on the appellant to satisfy it that the decision of the trial court was wrong’
(b) recognize the essential advantage which the trial court enjoyed in seeing the witnesses and watching their demeanour; and
(c) bear in mind that in cases which turn on the conflicting testimonies of witnesses and the credibility ascribed to them, an appellate court can never recapture the initial advantage of the trial court which saw and assessed the witnesses, Nteogwuile v. Otuo (2001) 16 NWLR (Pt. 738) 58; Oyedare v. Keji (2005) 7 NWLR (Pt. 925) 571.

What is more, where findings are not perverse, an appellate court cannot interfere with them, Ajuwa v. Odili (1985) 2 NWIR (Pt.9) 710; Chukwueke v. Nwankwo (1985) 2 NWLR (Pt. 6) 195; Nzekwu v. Nzekwu (1989) 2 NWLR (Pt. 104) 373. Due to the initial advantage which the trial court had of actually seeing and assessing the witnesses, Nteogwuile v. Otuo (2001) 16 NWLR (Pt. 738) 58; Oyedare v. Keji (2005) 7 NWLR (Pt. 925) 571, issues relating to the demeanour of such witnesses which the court saw and assessed and ascription of weight to their evidence are the exclusive prerogative of the trial court: prerogative which no appellate court can interfere with Ebba v. Ogodo (1984) 1 SCNLR 372; Owie v. Ighiwi (2005) 5 NWLR (Pt. 917) 184, 208. The foundation dictated the rule that a trial court has the power to ascribe credibility to the evidence of witnesses who testified before it Ajao v, Ademola (2005) 3 NWLR (Pt. 913) 636.

It is my view and I hold, from the foregoing elucidations that, in the instant case, 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, the confession of the Appellant could competently be used to convict the Appellant and that the Respondent, proved the charge of murder preferred against the Appellant by it, beyond reasonable doubt. In essence, issue two is equally resolved against the Appellant and in favour of the Respondent.
I find no justification whatsoever to disturb the conclusions reached by the learned trial Judge. For the above reasons, this appeal is completely devoid of merit, it fails and is hereby dismissed.
Consequently, I uphold the judgment of the trial Court and affirm the conviction and sentence of death by hanging of the Appellant, Felix Okpako for the murder of his half-sister Eloho Okpako.

R.C. AGBO, J.C.A.: I agree.

CHIOMA EGONDU NWOSU-IHEME (Ph.D) J.C.A.: My learned brother OMOLEYE JCA who prepared and read the lead judgment in this criminal appeal has appropriately addressed the issues raised in this appeal.
I therefore do not hesitate in coming to the inevitable conclusion that this appeal is devoid of merit. There is no reason to disturb the conclusions reached by the learned trial Judge. Accordingly, the judgment of the trial court is affirmed. The conviction and sentence of death by hanging of the Appellant, Felix Okpako for the murder of his half-sister Eloho Okpako is hereby affirmed.

Appearances

Ojo Abijogun,
F. ZokumoFor Appellant

AND

O.F. Enonmo DDPP,
Y.A. Onwuchie S.S.C. Ministry of Justice, Delta StateFor Respondent