Agbonmwanre Omoregie V The State (2008)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C.

This appeal is against the judgment of the Court of Appeal, Benin Division, delivered on 22nd November,2004, dismissing the appeal filed by the appellant against the judgment of the trial High Court sitting at Benin City, handed down on 2nd March, 1998, convicting the appellant of the offence of murder and sentencing him to death.

The appellant who was the 1st accused at the trial court was tried along with his own mother as the 2nd accused and another girl as the 3rd accused on a two count charge which stated that :

Agbonmwanre Omoregie (M), Elizabeth Omoregie (F) and Isoken Osawaru (F) are charged with the following offences :

Statement of Offence: Count I

Conspiracy to murder punishable under Section 321 of the Criminal Code, Cap. 48, Vol. II, Laws of Bendel State of Nigeria,1976, as applicable in Edo State.

Particulars of Offence

Agbonmwanre Omoregie, Elizabeth Omoregie and Isoken Osawaru on or about the 22nd November,1994 at Benin City within Benin Judicial Division conspired with one another to kill one Friday Agbonghae (M).

Statement of Offence: Count II

Murder contrary to Section 316(2) and punishable under Section 319(1) of the Criminal Code, Cap. 48 Vol. II, Laws of Bendel State of Nigeria,1976, as applicable in Edo State.

Particulars of Offence

Agbonmwanre Omoregie, Elizabeth Omoregie and Isoken Osawaru on or about the 22nd November, 1994 at Benin City killed one Friday Agbonghae (M) by stabbing him with a broken bottle.In the course of the trial of the three accused persons, the prosecution called a total of 8 prosecution witnesses including a consultant pathologist and the Police investigators. At the close of the case for the prosecution, the learned counsel to the 2nd and 3rd accused persons charged along with the appellant, made a no case submission on behalf of their clients. In her Ruling on the submission, the learned trial Judge, Omorodion, J., on 10th October,1997, while holding the view that the 2nd accused has a case to warrant her being called upon to defend herself on the charges against her, she was however of the opinion that the 3rd accused had no case to answer and accordingly discharged her. Therefore, the appellant and his mother, the 2nd accused were called upon to defend themselves on the two count charge against them for conspiracy and murder.

In addition to his two statements given to the Police under caution and one statement under caution given by his mother, the 2nd accused person, both the appellant and his mother also gave evidence on oath in their defence and also called one other witness who testified in their defence. After taking the addresses of the learned counsel for the appellant and his mother, the 2nd accused and the learned counsel for the prosecution, the learned trial Judge in her judgment found that the two count charge of conspiracy and murder, was not proved against the 2nd accused and therefore discharged and acquitted her of the charge. The appellant was however found guilty of the offence of murder and was convicted and sentenced to death accordingly. The appellant’s conviction and sentence were again confirmed on appeal by the Court of Appeal, Benin Division, which dismissed his appeal on 22nd November, 2004, the 10th year anniversary of the day the offence was alleged to have been committed on 22nd November,1994. The present appeal now in this court, is against that judgment.

It is appropriate at this stage to state the case made up by the prosecution and the defence put up by the appellant from the evidence on record. The case of the prosecution was that on 22nd November, 1994 in the morning between 9.00-10.00 a.m, Mary Igbinigie, (P.W.1), a sister to the deceased, Friday Agbonghae, paid a visit to his house at No. 48, Isokpan Street, Benin City. At that time Elizabeth Omoregie, the 2nd accused was plaiting her hair in front of a house opposite the house of the deceased. On seeing P.W.1, the 2nd accused sent for the 3rd accused who came and confronted P.W.1 with some allegations on the domestic affairs of P.W. 1 with her husband, the deceased. Later there was a fight involving the 2nd and 3rd accused persons with P.W.1 which the deceased and others were trying to separate. The appellant on receiving information that his mother, the 2nd accused was involved in a fight, rushed to the scene of the fight. He was armed with a broken bottle. The deceased and others at the scene tried to stop the appellant and in the process the appellant stabbed the deceased with the broken bottle in the arm-pit resulting in serious injuries. The deceased was rushed to the University of Benin Teaching Hospital where he later died the same day from the injuries of the stab wound inflicted on him by the appellant. The appellant who decided to report himself to the Ogida Police Station, Benin-City was arrested thereon and made a statement under caution on 22nd November,1994, which was recorded by the Police investigator, P.W.8 and endorsed by a Superior Police Officer. When the case was transferred to the Homicide Section of the State Investigation and Intelligence Bureau (S.I.B.) for further investigation, the appellant again gave a second statement under caution on 28th December,1994, which was recorded by P.W.5.