PETER OMOREGBE v. THE STATE
(2019)LCN/13689(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 24th day of July, 2019
CA/B/413C/2018
RATIO
CRIMINAL LAW AND PROCEDURE: HOW TO IDENTIFY AN ACCUSED PERSON
It stands to reason that having been herself a victim of the entire kidnapping incident, she had no difficulty or any hesitation in identifying her assailant.
This Court had in the case of USUNG V. THE STATE (2009) ALL FWLR PT. 462 1211 7 clearly stated as follows:
Identification of an accused person may take forms such as:
(a) Visual identification
(b) Voice identification
(c) Identification parade.” per PHILOMENA MBUA EKPE, J.C.A.
OTHER MEANS OF IDENTIFYING AN ACCUSED APART FROM IDENTIFICATION PARADE
It is also the law that an identification parade is not the only means by which an accused person can be identified, except where a charge is based principally on the issue of identification of the accused person. See the case of OBINNA UZOR V THE STATE (2016) LPELR 40809. per PHILOMENA MBUA EKPE, J.C.A.
STANDARD OF PROOF IN CRIMINAL CASES
However, proof beyond reasonable doubt does not require any mathematical exactitude; what is required of the prosecution is merely to prove the ingredients of the offence. In ABIODUN V. FRN (2016) NWLR (Pt. 1542) 462 @ 515 PARAS A ? D. It was held inter alia .A reasonable doubt does not mean some light or any insubstantial doubt that may flip through the minds of anyone about almost anything at sometime or other, it does not mean a doubt begotten by sympathy out of reluctance to convict. It means a real doubt, a doubt founded upon reason.? Also in ABOKOKU & ANOR. V. STATE (2011) ALL FWLR (Pt. 597) 700 @ 723 PARAS E ? G. It was held that if the evidence is strong against a man as to leave only a remote probability in his favour, which can be dismissed with the sentence: ?of course it is possible? the case is proved beyond reasonable doubt. per PHILOMENA MBUA EKPE, J.C.A.
WHEN A CONFESSIONAL STATEMENT WILL BE ACCEPTABLE
In the case of CHIOKWE V. THE STATE (2012) LPELR 19716 (SC) the Supreme Court stated as follows: it should be stated unequivocally that a free and voluntary confession of guilt, if direct and positive, duly made and satisfactorily proved, is sufficient to warrant conviction even without corroborative evidence so long as the Court is satisfied of the truth of the confession. Also that principle was given even more credence and further buttressed in the case of HARUNA V. A.G. OF THE FEDERATION (2012) LPELR 7821 (SC) where the Apex Court meticulously laid down the broad principles behind the conviction of an accused person on his retracted confessional statement. See also R V SYKES (1913) CAR Pg. 113; R V OMOKARO (1941) WACA 146; ACHABUA V THE STATE (1976) NSCC 74; YUSUFU V STATE (1976) 6 SC 167. per PHILOMENA MBUA EKPE, J.C.A.
JUSTICES
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
Between
PETER OMOREGBE Appellant(s)
AND
THE STATE Respondent(s)
PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of Honourable Justice R. Irele-Ifijeh of the Edo State High Court at the Benin Criminal Division delivered on the 9th day of March, 2018 in Charge No. B/CD/167C/2013, wherein the Appellant, and another, were arraigned on a Seven-Count Charge of conspiracy to commit Armed Robbery, Armed Robbery and kidnapping punishable under Section 1 (2) (a) of the Robbery and Firearm (Special Provisions) Act Cap. R11, Laws of the Federation of Nigeria 2004.
The Charge reads as follows:
COUNT 1:
That you Peter Omoregbe (m), Karim Oshiafi (m) and others now at large on or about the 21st day of October, 2012, at Benin City, in the Benin Judicial Division did conspire amongst yourselves to commit felony to wit: Armed Robbery and thereby committed an offence contrary to Section 6(b) and punishable under Section 1(2) (a) of the Robbery and Firearm (Special Provisions) Act Cap RII, Laws of the Federation of Nigeria 2004.
COUNT II:
That you Peter Omoregbe (m), Karim Oshiafi (m) and others now at large on or about the 21st day of October, 2012
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at Benin City, in the Benin Judicial Division did rob one Fred Omaka of a black berry telephone and a Samsung galaxy and at the time of the said robbery you were armed with offensive weapon to wit: Guns and thereby committed an offence punishable under Section 1(2) (a) of the Robbery and Firearm (Special Provisions) Act Cap RII, Laws of the Federation of Nigeria 2004.
COUNT III:
That you Peter Omoregbe (m), Karim Oshiafi (m) and others now at large on or about the 21st day of October, 2012 at Benin City, in the Benin Judicial Division did rob one Esther Omaka of one gold earrings, neck gold chains and gold rings and at the time of the said robbery you were armed with offensive weapon to wit: Guns and thereby committed an offence punishable under Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act Cap RII, Laws of the Federation of Nigeria 2004.
COUNT IV:
That you Peter Omoregbe (m), Karim Oshiafi (m) and others now at large on or about the 21st day of October, 2012 at Benin City, in the Benin Judicial Division did rob one Enima Omaka of one Ipod, Nokia E90 and a blackberry telephone and at the time of the said robbery you
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were armed with offensive weapon to wit: Guns and thereby committed an offence punishable under Section 1(2) (a) of the Robbery and Firearm (Special Provisions) Act Cap RII, Laws of the Federation of Nigeria 2004.
COUNT V:
That you Peter Omoregbe (m), Karim Oshiafi (m) and others now at large on or about the 21st day of October, 2012 at Benin City, in the Benin Judicial Division did kidnap one Fred Omaka and thereby committed an offence contrary to Section 2(1) and punishable under Section 3(2) (a) of the kidnapping (Prohibition) Law of Edo State of Nigeria, 2009.
COUNT VI:
That you Peter Omoregbe (m), Karim Oshiafi (m) and others now at large on or about the 21st day of October, 2012 at Benin City, in the Benin Judicial Division did kidnap one Esther Omaka and thereby committed an offence contrary to Section 2(1) and punishable under Section 3(2) (a) of the kidnapping (Prohibition) Law of Edo State of Nigeria, 2009.
COUNT VII:
That you Peter Omoregbe (m), Karim Oshiafi (m) and others now at large on or about the 21st day of October, 2012 at Benin City, in the Benin Judicial Division did kidnap one Enima Omaka and thereby
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committed an offence contrary to Section 2(1) and punishable under Section 3(2) (a) of the kidnapping (Prohibition) Law of Edo State of Nigeria, 2009.
The Prosecution called three (3) witnesses in proof of its case and Exhibits were tendered. While the Defendant produced a witness in defence.
In the Appellant?s defence, he stated that sometime in October, in the year 2012, that one papa called him and told him he wanted to go to Lagos and that he (Appellant) should come and pick him up as a Commercial Taxi Driver from Mr. Biggs, Airport Road to Iyaro, Benin City. On getting there, papa loaded the boot of his car with Foodstuff and a paper bag. He then took the papa to Iyaro and was paid N3,000 (Three Thousand Naira). On getting to his park, the said papa called him on phone and told him that he had forgotten a paper bag in his car which contained money and three phones, he checked his vehicle which he saw and kept on the instructions of papa. He stated further that he felt the contents of the bag with his hands and discovered it to be money so he later reported the issue of the bag to his park Chairman. He claimed he also told Frank his friend
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about the bag left in his car and that the said Frank came to his house with SSS, who asked for the money that was left in his car. That he gave them the money and told them that a customer forgot it in his car. That himself, his wife and Frank were later arrested. He claimed that while he was in SSS cell, the said papa called him on phone and asked him to bring the money to Chinoso Beer Parlor and he was taken to Chinoso Beer Parlor by the SSS, where they shot and killed papa. He further claimed that he is not a member of the said papa?s gang. He stated that PW3 did not obtain any statement from him.
At the close of defence, learned counsel for the contending parties were given time to file their respective written addresses.
The Appellant however was identified by PW1 (Esther Omaka) as the driver who drove them to Auchi and also assisted her in putting the vehicle in gear one while she was made to leave with her son to source for the ransom sum. When the Appellant?s statement was tendered in Court on the 16th of June 2014, the Appellant retracted the statement credited to him. The Appellant was found guilty of the offences of
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conspiracy to commit Armed Robbery, Armed Robbery and Kidnapping and was accordingly sentenced to death.
NOTICE AND GROUNDS OF APPEAL:
Dissatisfied with the said Judgment, the Appellant via a Notice of Appeal dated and filed on the 15th day of March, 2018 appealed to this Court. The Notice of Appeal was however amended following an amended Notice of Appeal dated and filed on the 20th day of February, 2018.
The Amended Notice and grounds of Appeal shorn of its particulars is reproduced herein:
GROUND ONE:
The judgment is against the weight of evidence.
GROUND TWO:
The learned trial Judge erred in law when he convicted the Appellant of the offence of Armed Robbery and Kidnapping.
GROUND THREE:
The learned trial Judge erred in law when he convicted the Appellant for the offence of conspiracy to commit armed robbery, armed robbery and kidnapping when the said offences were never proved beyond reasonable doubt having regard to his finding on identification of the Appellant.
GROUND FOUR
The learned trial Judge erred in law and caused serious miscarriage of justice when he convicted the Appellant based on
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circumstantial evidence and the purported Exhibit E which the Appellant resiled during trial.
GROUND FIVE:
The Lower Court erred in law when he admitted the purported confessional statement and placed reliance in same thereby causing serious miscarriage of justice.
The Respondent filed Respondent?s Consequential Amended Brief of Argument on the 11th of March, 2019.
The Appellant distilled three Issues from the Grounds of Appeal viz:
1. Whether the prosecution proved the case of conspiracy, kidnapping and armed robbery beyond reasonable doubt against the Appellant in the absence of proper identification of the appellant.
2. Whether the trial Court was right when he solely relied on circumstantial evidence and the purported Exhibit E to convict the Appellant having regard to the non evaluation of the entire defence of the Appellant and the conflicting legal signal as to the real statement of the Appellant.
3. Having regards to the crucial fact that PW3 who tendered the purported statement credited to the Appellant was not the one who recorded the said statement which the Appellant retracted when giving evidence; whether
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the trial Court was right when he placed value on the said statement.
Respondent canvassed two Issues for determination thus:
1. Whether the Appellant was rightly identified as a member of the robbery/kidnap gang.
2. Whether the trial Court rightly convicted the Appellant having regards to the evidence adduced before the Court.
I have carefully considered both sets of issues formulated by learned counsel to Appellant and Respondent and I have decided to adopt Issue one of the Appellant?s Amended Brief of Argument and Issue two of the Respondent?s consequential Amended Brief of Argument in this discourse.
1. Whether the prosecution proved the case of conspiracy, kidnapping and armed robbery beyond reasonable doubt against the Appellant in the absence of proper identification of the appellant.
2. Whether the trial Court rightly convicted the Appellant having regards to the evidence adduced before the Court.
On Issue one, the Appellant submitted that it is settled law that the prosecution has the burden to prove all the ingredients of the offence beyond reasonable doubt even if in his statement to the police he
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admitted committing the offence. He cited the case of BATURE AUDU V. FEDERAL REPUBLIC OF NIGERIA (2017) LPELR ? 43223 (CA) Para C-A Pg 14-15. Where Abdu Aboki A.J.A, held that:
?The point has been made earlier that the prosecution always has the duty to prove all and not merely some of the ingredients of the offence charged beyond reasonable doubt, the guilt of an accused person which it accuses of a crime. Even where an accused person in his statement to the police admitted committing the crime, the prosecution is not relieved of this burden. Failure to discharge this burden renders the benefit of doubt in favour of the accused.?
Learned counsel stated that the identification of an accused person in the commission of crime is a most ser
