AJOGWU v. STATE (2020)

AJOGWU v. STATE

(2020)LCN/14555(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, August 14, 2020

CA/A/1179C/2019

RATIO

PLEADINGS: BURDEN AND STANDARD OF PROOF

It is trite in all Criminal trials that the burden of proof is constantly on the Prosecution and the standard is proof beyond reasonable doubt, see the case of AKIBU V STATE (2019) LPELR-47630(SC). For the offence of kidnapping, the ingredients required to be proved were restated in the case of OKAILKWO V THE STATE (2017) LPELR-42565(CA) as follows:
“On how the prosecution can succeeded in proving the offence of kidnapping beyond reasonable doubt, the Supreme Court state in Bello Okashetu v. The State (2016) 15 NWLR (Pt.1523) 126 at 148 – 149, per Ogunbiyi, JSC as follows: “In order for the prosecution to succeed under this Court, it has to prove the following facts beyond reasonable doubt. (i) That the victim was seized, and taken away by the accused person. (ii) That the victim was taken away against his consent. (iii) That the victim was taken away without lawful excuse. The offence of kidnapping is complete when the victim is carried away against his wish. ” Per ADUMEIN, J.C.A.
There is no challenge to the fact that PW2 was kidnapped. Per YARGATA BYENCHIT NIMPAR, J.C.A.

RATIO

PLEADINGS: CONTRADITION

Contradiction is described in the case of FRIDAY V STATE (2014) LPELR-23003(CA) as follows:
“Now, the word “contradiction” comes from two Latin words “contra” which means “opposite” and “dicere” which means “to say”. Therefore to contradict is to speak or affirm the contrary. A piece of evidence is contradictory to another when it asserts or affirms the opposite of what the other asserts, and not necessarily when there are some minor discrepancies, in say details between them. In other words, contradiction between two pieces of evidence goes rather to the essentiality of some being or not being at the same time. Whereas minor discrepancies depend on the person’s status and capacity for observing meticulous details. See Dagayya v. State (2006) 7 NWLR (Pt. 980) 637. Also in Ayo Gabriel v. The State (1989) 5 NWLR (Pt. 122) 457 at 468. Nnaemeka-Agu JSC had this to say: “A piece of evidence contradicts another when it affirms the opposite of what the other evidence has stated, not when there is just a minor discrepancy between them. …..Two pieces of evidence contradict one another when they are by themselves inconsistent. On the other hand, ‘a discrepancy’ may occur when a piece of evidence stops short of, or contains a little more than, what the other piece of evidence says or contains some minor differences in details.” Per OWOADE, J.C.A.
It is trite that it is only material contradictions that can affect prosecution’s case, as held in a plethora of cases, see IKEMSON & ORS V STATE (1989) LPELR-1473(SC) which said thusly:
“…when the evidence of witnesses violently contradict each other, then that is a danger signal. A trial Court should not believe contradictory evidence. Contradictory means what it says – contra-dictum – to say the opposite. Contradiction should be on a material issue to amount to material contradiction….. The need for explanation as postulated in Onubogu & Anor. v. The State (1974) 9 S.C.1 at p.20 arises only when there are material contradictions.” Per OPUTA, J.S.C.
The explanation as settled in ONUBOGU & ANOR V THE STATE (1974) 9 S.C. 1 at 20 is required to obliterate a contradiction can come from any of the prosecution witnesses and not necessarily from the witness whose evidence is considered contradictory, see AREHIA V STATE (1982) LPELR-543(SC) where it said:
“Now the principle laid down in the case of Onubogu & Anor is that where there are contradictions in the testimonies of the prosecution witnesses on a material fact and the contradictions are not explained by the prosecution through any of its witnesses, the trial Court should not speculate on or proffer the explanation for such contradictions and thereby pick and choose from the evidence of the prosecution witnesses that which it will believe; see Boy Muka & Ors v. The State (1976) 9 & 10 S.C. 305 at p. 325.
What amounts to material contradictions that can affect the case of the prosecution is stated thus:
“What amounts to material contradiction depends on the circumstance of each case. They are contradictions or inconsistencies in the evidence of the witnesses for the prosecution which are substantial and fundamental to the main issues before the Court and therefore necessarily create some doubt in the mind of the trial Court that an accused is entitled to the benefit there from. Where there are contradictions in the testimonies of the prosecution witnesses on a material fact and the contradictions are not explained by the prosecution through any of the witnesses, the trial Court must not be left to speculate or proffer explanation for such contradictions, so that it will only find itself in a position where it will pick and choose from the evidence of the prosecution which it will believe. Contradictions in the testimony of witness are inevitable but what the law frowns at is material contradictions as they are fatal to the case of the prosecution… Onubogu v State (1974) 9 SC 1, Nasamu v State (1976) 6 SC pg 153, Enahoro v Queen (1965) 1 All NLR 125, Ibe v State (1992) 5 NWLR Pt. 244 pg 642, Kalu v State (1988) 4 NWLR pt. 90pg 503, Ejigbadero v State (1978) 10 SC P. 81, Omonga v State (2006) 14 NWLR pt. 1000 pg 532.” Per ADEKEYE, J.S.C
The Appellant listed instances he considered as material contradictions in the case of the prosecution as follows:
i. How the victim, PW2 identified the Appellant;
ii. Whether there was identification parade, when and how the victim identified the Appellant;
iii. The actual number of days the victim spent with the abductor because she said 4 days while her son, PW5 said she was abducted on 17th and they got a call to pick her on the 19th.
iv. How the appellant was mentioned by the victim when she said SIMEON, EMEKA, OKUKWU AND CHALATE abducted her and her son told the Court that PW2 told him that she was abducted by the 1st and 4th accused persons.
v. The accounts of PW3 and PW4 (NSCDC investigators) are contradictory.
The trial Court held that the contradictions are not material as to affect the case of the prosecutions. Let us start with item iv above, it is clearly on record that the Appellant was the 1st accused and his name is Simeon. How and where is the contradiction? Whether the Appellant is referred to as the 1st accused or called by his name Simeon both refer to the Appellant. The Appellant was not misled in any way. It is not a contradiction. The next immaterial contradiction relates to the number of days the victim was held by the kidnappers. The ingredients of the offence did not require a particular period of stay with the kidnappers. Once there was a kidnap and if proved, the offence is complete.
The identity of the Appellant is the central issue in this Appeal. The victim, PW2 told the Court that at the point of kidnap, she was made to sit on a motorcycle but as they were going they fell down and both herself and the rider got burns from the exhaust and that was the point she was blindfolded. So she saw the rider of the bike. Furthermore, she told the trial Court that when they got to the forest, the blindfold was removed and she recognized the Appellant and called his name. She also said it was the Appellant who used her phone to call her relations for ransom.
The contentious evidence also alleged to be contradictory is the evidence of PW3 and PW4. PW3 told the Court that they conducted identification parade during which the victim identified the 4 suspects. The scenario in the case of GHOHOR V STATE (2013) LPELR- 20293 (CA) is not in any way similar to the facts of this Appeal. The Appellant also admitted that he sustained a burn and was treated by a chemist. They were led there by the Appellant and as at the time of hearing, the wound had not healed. The witness who was an investigator told the Court that some of the suspects were construction workers while a house was being constructed for the victim. PW4 told the Court, Exhibit P5B was recovered from the Appellant. He said the identification parade was conducted on the 29/2/2018 when the victim identified the suspects. PW6 another officer with NSCDC told the Court that an identification parade was conducted on the 23/2/2018. The contention is whether the identification parade was held on 23/2/2018 or 28/2 2018 and whether it involved 11 people or 14 people. The seeming contradiction is a minor discrepancy which is not material to the case of the prosecution because there is already established a clear identity of the Appellant by other pieces of evidence. Therefore, even if the evidence of the identification parade is discountenanced, there is adequate evidence to link the Appellant to the offence. He was the one who had a burn from the motorbike exhaust; the victim identified him, called him by his name and also recognized his voice. Furthermore, he made the calls for ransom. There is no material contradiction more so, the Appellant was not misled. I reproduced holdings of the apex Court earlier in the Judgment that it is only when a contradiction is material that it can affect the case of the prosecution. I do not find any here. I agree with the trial Court in his findings that there was no material contradiction.
The other area identified relates to the evidence of PW2 and PW5 (victims son) as to whether PW2 knew the Appellant and his co accused before the incidence when compared with her extrajudicial statement. The alleged contradiction and how it arose was explained by the victim when she said she had hearing difficulty at the time she made her statement to the NSCDC after the incident. Her statement was recorded for her. The law is that when such contradiction is not explained by any of the prosecution witness then it becomes a problem but here the victim whose evidence in the box and her prior statement contains discrepancies was explained. In view of the explanation given by the victim, the alleged contradiction is of no moment and can no longer affect the case of the prosecution, see AREHIA V STATE (supra). I also agree with the trial Court that the contradiction is not material. The identity of the Appellant is not in doubt, the arguments about recognition and identification is mere rhetoric’s and is of no value. There is evidence linking the Appellant to the kidnapping of the victim. That is what the law requires and which was established.
I agree with the Respondent that in the trial Judge’s finding that there was no explanation to the seeming contradiction in PW2 oral testimony and EXHIBIT P1 was perverse and contrary to evidence. The witness when confronted told the Court she did not understand the question because she had hearing problems at the time. In any case, there was evidence to pin the Appellant to the offence. The Court contrary to the assertion of the Appellant is empowered by Order 4 Rule 3 and 4 to make any order as the case may require notwithstanding the fact that no Notice of Appeal or Respondent’s Notice has been given and the purpose is to ensure the just determination of any issue in controversy between the parties. Per YARGATA BYENCHIT NIMPAR, J.C.A.

RATIO

PLEADINGS: DEFENCE OF ALIBI

An Accused Person who seeks to rely on the defence must however provide accurate details of where he was at the time the offence was committed. He must present evidence from persons who were with him at the time. This is necessary to demonstrate that he was not in a position to commit the offence with which he was charged. The defence must be raised timeously or at the first opportunity with details to give the prosecution or police the opportunity to investigate to ascertain the truth or otherwise of the defence. The onus is on the defence to establish the alibi. If the prosecution adduces sufficient evidence to fix an accused person at the scene of crime his alibi is demolished. See SHEHU VS. STATE (2010) 8 NWLR (PT. 1195) 112; ADEWUNMI VS. STATE (2016) 10 NWLR (PT. 1521) 614; OSUAGWU VS. STATE (2013) 1-2 SC (PT. 1) 37; EZEKWE VS. STATE (2018) 3-4 SC (PT. I) 144.
The Appellant did not give the relevant particulars of his brother Okechukwu, who he alleged he was with. It is not the duty of the Respondent to search for him when the information given is scanty. Per YARGATA BYENCHIT NIMPAR, J.C.A.

RATIO

PLEADINGS: EVIDENTIAL BURDEN OF PROOF

There is also the evidential burden which oscillates and is not as static as the burden of proof, seeDAUDU V FRN(2018) LPELR- 43637(SC) where the apex Court explained the evidential burden thusly:
“Incidence of evidential burden of proof, this is the burden of adducing evidence to prove or disprove a particular fact. When a party wishes the Court to believe any fact, then the burden of proof as to that fact rests on that party. The party bearing the legal burden of proof must first make out a prima facie case in his favour. This means that he has to adduce enough evidence which, if believed, may reasonably justify a finding that the facts he seeks to prove exist. But whether this burden has been discharged cannot be known until at the end of the trial and the Court actually gives a verdict in his favour. If the Court disbelieves his evidence then the burden is not discharged. However, making out such a case he has discharged the evidential burden cast on him because he has tendered the evidence basically necessary for the establishment of this case. It then becomes necessary for his opponent to call contrary evidence to challenge the case set up by the party. By the necessity to adduce this contrary evidence, the evidential burden of proof is shifted unto the opponent. Of course, he is not bound to supply any evidence at all. But by so doing, he runs a great risk of the Court finding against in denial of allegations of the allegations of the other party.”
The evidence necessary to settle the fact that the Appellant was not at the scene of crime should come from the Appellant’s relation Okechukwu, who was named as the owner of the motorcycle at Ugwobi. If the Appellant said he was riding the bike with Okechukwu when he got the burns, he should have called the said Okechukwu to corroborate his evidence against the backdrop of the prosecution’s evidence showing he was one of the kidnappers. The duty to call evidence on the prosecution is to prove the offence and not to call evidence in defence of the Appellant. The duty of calling him rests squarely with the Appellant because that evidence must be introduced by Okechukwu, that’s the evidential burden on the Appellant. The Appellant has lost sight of the fact that there was evidence to the contrary against the Appellant from PW2, that Appellant and PW2 got the burns when they fell down on their way to the forest. That is enough to fix the Appellant to have participated in the kidnapping. With that failure, the fact that he was with Okechukwu remained unproved and the evidence against him therefore stands unchallenged to settle the fact that the Appellant was one of those who kidnapped PW2 and the second ingredient was proved by the prosecution. Assuming the prosecution failed to investigate the alibi, is it in all cases that the failure will have adverse results to the case? The apex Court in the case of EBRI V STATE (2004) LPLER-996(SC) settled that question when it held:
“Where evidence of prosecution witnesses specifically and unequivocally pins down an accused person to the scene of crime and says that he committed the offence, failure to investigate the alibi by the police will not result in an acquittal of the accused in such a situation, the failure to investigate the alibi is not only superfluous but also otiose.” Per TOBI, J.S.C. The Appellant complained that the trial Court failed to evaluate evidence and that occasioned a miscarriage of justice. The law is settled that a Party complaining that evidence was not evaluated must identify such piece of evidence which was not evaluated, see STEMC0 LTD V ESSIEN (2019) LPELR-47475(CA); RICHARD IDOWU AKANMODE VS. MELAYE DANIEL DINO (2008) LPELR- 8405(CA) and IGAGO VS. STATE (1999) LPELR-1442(SC) which held:
“…It is accepted that Appellant who relies on improper evaluation of evidence to set aside the judgment has the onus to identify or specify the evidence improperly evaluated or not evaluated and to show convincingly that if the error complained of had been corrected, the conclusion reached would have been different and in favour of the party, complaining of wrong evaluation.” The settled legal position is that the party complaining of failure to evaluate evidence must identify in detail the piece of evidence not evaluated otherwise it becomes a bogus and unsubstantiated allegation. The Appellant herein merely complained about the outcome of evaluation and did not show the piece of evidence not evaluated. There is a difference between non evaluation and unfavourable evaluation which is what the Appellant frowns at in this Appeal.
The evidential burden that shifts was not discharged by the Appellant; it concerns the alibi raised that Appellant was with the named person who is the appropriate person to say that the Appellant was elsewhere. Correct findings cannot occasion miscarriage of Justice. The evaluation done is based on the evidence before the Court below and as required by law and the authority of BOY MUKA V THE STATE (1979) 10-11 SC 305 cited by the Appellant. The trial Court considered the essential elements for due evaluation and there was nothing perverse in the findings made towards the conviction and sentence. The trial Court dutifully evaluated evidence before arriving at the final decision to convict the Appellant. The complaint was not made out and is hereby discountenanced. Per YARGATA BYENCHIT NIMPAR, J.C.A.

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Emmanuel Akomaye Agim Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Between

SIMEON AJOGWU APPELANT(S)

And

THE STATE RESPONDENT(S)

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This Appeal is against the decision of the High Court of Justice, Kogi State delivered by Hon. Justice FOLAJOBI AJAYI on the 19th June, 2019 wherein the Court below found the Appellant guilty of the offences of Conspiracy and kidnapping and sentenced him accordingly. Aggrieved by the said decision, the Appellant filed a Notice of Appeal on the 17th September, 2019 setting out 8 Grounds of Appeal.

Facts leading to this Appeal are amenable to brief summary and I shall do so here. The Appellant was arraigned on a two count charge of Conspiracy and Kidnapping before the High Court of Justice, Kogi State sitting at Idah. The allegation was that the Appellant along 3 others conspired and kidnapped Mrs. Catharine Adama from Nokwa Village, Kogi State on the 17th January, 2018. They were arraigned and they all pleaded not guilty. Trial proceeded with the Respondent calling 5 witnesses while the Appellant testified for himself and did not call any witness in defence. Upon due consideration of closing submissions of counsel, the trial Court found the Appellant and his co-accused persons guilty and

convicted them accordingly thus the Appeal.

The Appellant’s Brief settled by ACHINIKE G. WILLIAM-WOBODO ESQ., is dated 22/4/2020 filed on the 27/4/2020 and deemed on the 22/6/2020. It donated three issues for determination as follows:
1. Was the trial Court right when it held that the contradictions in the prosecution’s evidence were not material and therefore not fatal to the prosecution’s case?
2. Was the trial Court right when it held that the Prosecution established the offence of kidnapping and conspiracy against the Appellant, and without proper evaluation of the available evidence before it?
3. Was the trial Court right to have relied on the failure of the Appellant to call a particular evidence to resolve an issue of fact against the Appellant and relied upon that conclusion to hold the Appellant guilty of the offence of kidnap and conspiracy?

The Respondent’s Brief settled by ATULE E. STANLEY ESQ., is dated 3/6/2020 and filed on the 4th June, 2020 and deemed on the 22/6/2020, it formulated 2 issues for determination namely:
a. Whether the prosecution has established the offence of kidnapping and

criminal conspiracy against the Appellant and the trial Court properly evaluate the available evidence before the conviction of the Appellant.
b. Whether the trial Court was right to have held that the contradictions, particularly on the issue of identification parade conducted by the NSCDC and the identification of the Appellant by PW2, in the evidence of the prosecution were not material and therefore not fatal to the prosecution’s case.

I have perused the Notice of Appeal, the Record of Appeal and the Brief of the Respective Counsel in the Appeal and I find it expedient to adopt Appellant’s issues for determination. Doing so would enable the Court address all areas of complaint in this Appeal.

APPELLANT’S SUBMISSIONS
ISSUES ONE
The Appellant in arguing issue submits that they contended and demonstrated generally that there were material contradictions in the evidence and case of the prosecution, which exposed apparent doubts and gaps in the testimonies of the prosecution witnesses. Some of the material contradictions, for instance include:
i. The accounts of Mrs. Catherine Adama (PW2) on how she knew that the

Appellant was among her abductors. In her extra-judicial statement to the NSCDC (made more than one month after the incident and after a purported identification parade) which was admitted in evidence as Exhibit P1, she claimed to have known the appellant, in her words: “because they worked for me in my new house in Nokwu village where I was kidnapped”. In her oral testimony before the Court, she denied prior knowledge of the Appellant, but stated that she recognized him because she heard the names ‘Simeon”, “Emeka”, “Ojukwu” and “Chaplate” mentioned by her abductors who were always behind her. She did not state how she was able to link any of the names or voices to the Appellant.
ii. The contradictions between Exhibit P1 and oral account of the PW2 in terms of the number and identity of her abductors. In Exhibit P1 she named her abductors as “simeon”, “Ojukwu” (who was identified as Okeme Anene) who was at large and another who was being referred to as “Chaplate”, but that she did not know who was the “Chaplate”, that she did not see all of them.

She however did not state who or those she saw. In her oral testimony before the Court, she stated that she saw those who kidnapped her and also heard their names as “Simeon”, “Emeka”, “Ojukwu” and Chaplet”. No link of the appellant to any of the names and the reason for such link.
iii. PW2 testified that she was kidnapped on 17/01/2018 and spent (4) days with her abductors before she escaped. The PW5 (PW2’s son) stated that on the night of 19/01/2018 they got a call to come to Nimgbo Community to pick PW2, which they did.
iv. The PW2 testified that as soon as she got home she told the vigilante that “Simeon”, “Emeka”, “Ojukwu” and Chaplet” were her abductors. The PW5, on the contrary, stated that PW2 informed him that the abductors were the 1st and 4th defendants. No evidence as to how she linked the names she heard to the Appellant and all other accused persons.
v. The accounts of the PW3 and PW4 (NSCDC- the investigators), who claimed to have allegedly conducted identification parade in the case were totally and materially contradictory: the PW3 claimed

that the identification parade took place on 23/02/208 and 11 persons were paraded inclusive of the 4th accused person; the PW4 on the other hand claimed the identification parade took place on 28/02/2018 and 14 persons were paraded inclusive of the 4 accused person.
The Appellant states that the trial Court did not consider all the instances above, but only considered scenarios (iv) and (v) and found, very rightly too, that they were contradictions in the evidence of the prosecution, yet it held curiously that the contradictions were not material and did not impeach the credibility of the prosecution’s case. The Appellant submit and urge this Court to hold that the contradictions in all five instances were material as they went to the root of the case.
The Appellant continued to submit that the trial Court, relying on ONUBOGU V. STATE (1974) 9 SC 1, had acknowledged and reiterated the settled principle law, which is that where a contradiction exist in the case presented by the prosecution, the Court must look at the evidence adduced to see if there is explanation for the apparent contradiction and where no explanation he cannot chose to pick

from the prosecution’s evidence which testimony to believe (page 120 of the Record of Appeal).

The Appellant submits that the contradictions in the prosecution’s case were material and fatal to their case. He submitted that the trial Court in its misdirection held thus:
“With this in mind, it should be pointed out that the inconsistency between the evidence of PW1 as it relates to the number of abductors identified by PW2 as well as the inconsistencies in the evidence of PW3 and PW4 are minor discrepancies that do not go to the main issue of identification of the defendants as the abductors or to the question whether an identification parade was actually conducted or not.”

The Appellant submits that this contradiction is material and fatal to the prosecution’s case. Firstly, the contradiction in the above testimonies of the PW2 is not only material in the sense of its incongruity, but also in the sense of the confusion it creates, as it relates to the determination of the degree and credibility of the evidence required of PW2 to establish the identity of the Appellant as one of her abductors.

The Appellant states that the distinctive duties and burden on the prosecution under both scenarios could be drawn from the distinction made between recognition and identification of an accused person, as was reiterated in the case of ADAMU V. STATE (2013) LPELR-20770(CA) and also WORU V. STATE (2011) ALL FWLR (PT. 602) P.1644.

Further, the Appellant states that the question of proper identification or identification parade of the Appellant becomes a relevant fact in issue, which the trial Court must resolve. The question is how the trial Court resolved this material issue: was it to hold that the PW2 knew the Appellant before the incident and therefore recognized him, or to hold that PW2 did not know the Appellant before the incident, in which case the Appellant’s identification was relevant fact.

Secondly, that the trial Court admitted there was contradiction in existence in the prosecution’s case. The contradictions were material and fatal and that a trial Court is not allowed to pick and choose which piece of the contradictory evidence of a witness (in this case PW2) to believe or not believe. Thus when the trial Court held that he believed PW2,

which version of her evidence did he believe and which version was not believed having held that there was no explanation for the contradictions. Their point was reiterated in the case of C.O.P V. AMUTA (2017) LPELR-41386) (SC).

The Appellant urge the Court to hold that any contradiction in evidence relating to the date the identification parade was purportedly conducted or the number of persons paraded or lined up alongside the Appellant was a material contradiction that ought to create a doubt as to whether or not they said identification parade was actually conducted. The Appellant further submits that the above contradiction was material.

Also, that PW2 admitted in evidence that she did not know the Appellant and other accused person before the incident. This was also a finding by the trial Court (page 117 of the Record of Appeal). The Appellant submits that the identity/identification of the Appellant and the other accused person were automatically in issue, which should to be established through an identification parade.

Further, the Appellant submits that evidence relating to the number of persons who kidnapped PW2 or the number of

persons the PW2 was able to identify as her abductors is material to the case. Thus, any contradiction in evidence as to the number of persons that kidnapped PW2 or the number of the abductors she could identify is a material contradiction and was fatal to the prosecution’s case. Furthermore, the Appellant submits and urge this Court to hold that the contradictions between EXHIBIT P1 and the oral testimonies of PW2, between the evidence of PW2 on the number of person she identified as her abductor and evidence of PW5 as to the number PW2 told him were her abductors is material.

Continuing, the Appellant submits that the contradictions in the prosecution’s case were material contradiction which went to the root of the relevant facts in issue; they were not mere discrepancies as held by the trial Court. It was this misdirection by the trial Judge that led the trial Court into the error of not giving effect to the position of the law held in IPALIBO V. STATE (2014) LPELR-22678 (CA) P.22-23.

The Appellant states that the misdirection also led to a miscarriage of Justice against the Appellant. Miscarriage of Justice is a failure of Justice,

and failure of Justice does not only occur when the Court comes to the conclusion that the conviction was wrong but also when it is of the opinion that the error or omission in the Court below may reasonably be considered to have brought about the conviction and when the whole facts and in the absence of the error or omission, the trial Court might fairly and reasonably have found the Appellant not guilty. The Appellant relied on DAMINA V. STATE (1995) LPELR-918(SC)

The Appellant urges this Court to resolve this issue in favour of the Appellant.

ISSUE 2 AND ISSUE 3
The Appellant states that it is trite that in Criminal Proceedings, the standard of proof required of the prosecution is proof beyond reasonable doubt. The implication is that once there is any doubt, such doubt must be resolved in favour of the accused person. It is also the law that he who asserts must prove. The burden of proof is on the prosecution who will lose the case should that burden not be discharged, citing OMOYOLA V. THE STATE (2008) 2 FWLR (PT. 4180) 2190.

The Appellant states that apart from stating that PW2 was abducted and removed from her house against her will,

that ransom was demanded in exchange for her freedom. The prosecution must establish through credible and admissible evidence and beyond reasonable doubt, that the Appellant was the one who kidnapped PW2 or that he was linked to the said act. In the instant case, the prosecution could not link the Appellant through any credible evidence to the kidnap or abduction of PW2.

The Appellant submits and urge the Court to hold that the statement made by PW2 after she had inspected and examined the Appellant was unreliable, suspect, and the trial Court ought to have warned itself and considered such statement with great circumspection. The failure of the trial Court to take that into consideration before deciding whether the evidence of PW2 against the Appellant was true or not amount to a mis-direction on material evidence in favour of the Appellant and such mis-direction necessarily occasioned a miscarriage of Justice. The Appellant relied on ISAH V. STATE (2008) LPELR-1542(SC) (P. 9-10).

The Appellant states that the PW2 was, the victim and the only eye witness to the incident, alleged to have been kidnapped/abducted on 17/01/2018, made an extra-judicial

statement (EXHIBIT P1) to the prosecution (NSCDC) on the 24/02/2018, more than one Month after the alleged incident. The relevant part of that statement was copied in the Judgment of the trial Court, at page 117 of the Record of Appeal.

Further, the Appellant urge the Court to hold that from the wordings and phrase used, such as “OJUKWU who is identified as Okeme Anene”, ‘pikin who is now at large”, etc. the above statement of PW2 was apparently a tutored afterthought contrived more than one Month after to link the accused persons to the offence. The Appellant contends that the oral testimonies before the Court and during cross-examination, PW2 not only denied knowing the Appellant and other accused persons, but most of those claims were contradicted by the PW2 herself. See pages 93 to 94 of the Record of Appeal.

Furthermore, the Appellant submits that from the totality of the evidence of PW2, she did not know the Appellant before the incident and was blindfolded therefore could not be said to have had good opportunity of linking the names or the voices to the Appellant. Even when the blindfold was removed, the abductors were

always discussing at her back. Nowhere did PW2 state, either in EXHIBIT P1 or her oral testimony before the Court, how she was able to associate or link the Appellant to any of the names which she allegedly heard during her abduction, and no evidence to show that the Appellant herein is the only person that bears or goes by the name “Simeon” in that locality or in the local Government Area, of Kogi State or the entire Nation. No description whatsoever was given of the Appellant or how and why she could possibly have recognized the Appellant, i.e. that he was tall, slim, short, dark or light in complexion, or had deep voice or a cranky voice, citing GHOHOR V. STATE (2013) LPELR-20293(CA) in support.

The Appellant urge the Court to hold that in the circumstances of this case, the evidence of how PW2 was able to pin down, match or narrow down the Appellant to the name “Simeon” or to any of the voices which she allegedly heard was vital to eliminate possible doubts on the identification and identity of the Appellant as one of the abductors, especially where PW2 positively admitted in evidence that she did not know the Appellant or

other accused persons before the incident.

The Appellant states that the testimonies of PW1, PW3, PW4, PW5 & PW6 in relation to the identification of the Appellant in relation to the alleged crime were all hearsay evidence. Their evidence did not assist the PW2 in any way to link the Appellant, either by name or voice, to the alleged offence. They all claimed that PW2 told them that she recognized one accused person or the other, but none gave evidence of how she was able to link the Appellant to either voice or the name “Simeon”.

The Appellant submits further that the trial Court deliberately entwined contradictory evidence of the PW2 to produce a set of evasive conclusions to enable it convict the Appellant. This was misdirection. By the finding and conclusion of the trial Court, they gave the impression that PW2 properly recognized the Appellant as required by law as one of the abductors as such there was no need for identification parade, which was not the case.

The Appellant submits that by the admission of PW2, that she did not know the Appellant or any of the other accused persons before the alleged incident, the identity

and identification of the Appellant through a proper identification parade was not only necessary, but was also mandatory.

Continuing, the Appellant state that the trial Court deliberately refused or failed to resolve the following issue of facts relevant to the claim of identification parade: (1) was there an identification parade conducted, if at all, was it properly conducted as required by law, and when was that, on the 23/02/2018 or 28/02/2018; (2) how many persons were paraded (lined up) alongside the accused persons, (3) did the PW2 point at the Appellant and 4th Defendant in the cell? Without resolving any of the above issues of fact, the trial Court held:
i. That identification was conducted on 23/2/2018 but failed to state why it believed the date and account of PW3 and not the contrary account of PW4 who said it held on 28/2/2018;
ii. That identification parade was not necessary, notwithstanding the positive admission of the PW2 that she did not know the Appellant before the alleged incident
iii. That the PW2 recognized the Appellant

The trial Court held that the purported identification parade “reinforced the evidence

of PW2 and the case of the prosecution” and thereby relied on the unresolved and purported identification parade to hold that PW2 recognized the Appellant. This was a serious error and they urge this Court to so hold.

The Appellant urge this Court to hold that the prosecution did not prove beyond reasonable doubt that the Appellant, and not any other person (albeit bearing the name Simeon), was the person or the Simeon involved in or that committed the offense for which he was tried. The Appellant states that before the trial Court comes to the conclusion that the prosecution has proved it case against the Appellant, it must evaluate the totality of the evidence called by the prosecution. The Appellant relied on BOY MUKA V. THE STATE (1976) 10-11 SC 305 at 325-326. The Appellant states that the totality of the evidence must be put on an imaginary scale and weighed in order to determine which one has more qualitative or probative value than the other. It must consider the following factors:
i. Which evidence is admissible
ii. Whether the evidence is relevant
iii. Whether it is credible
iv. Whether it is conclusive and

Whether it is more probable than that given by the other party.The Appellant submits that the trial Court failed to properly evaluate the available evidence before it and this led to very perverse conclusions and findings which the Court relied upon to convict the Appellant. On when a finding is said to be perverse and the duty of the Appellate Court, the appellant relied on the case of CHUKWU & ANOR V. INEC & ORS, (2014) LPELR-22221 (SC).The Appellant adopted their earlier submissions to urge the Court to take note of the fact that the alleged offence was committed on 17/01/2018, before 23/02/2018 the Appellant and other accused persons had already been arrested and detained. The Appellant states that PW2’s evidence in-chief states that “when the motorcycle fell down, one of the defendants and myself suffered a burnt from the exhaust”. She did not state the name of the particular Defendant who sustained the burnt.

The Appellant further states that he had a burn from an exhaust while he was riding with a brother in December 2017 and contrary to the finding of the trial Court that the Appellant did not give the name of

the brother he was riding with on the motorcycle to the NSCDC, the Appellant states that he gave the name of the brother in EXHIBIT P6 as Okuchukwu (page 15 of the Record of Appeal). The Appellant submits that the findings of the trial Court that the Appellant failed to mention the name of the brother he was riding with was contrary to the evidence before the Court and unfortunately, the prosecution failed to investigate the claim by not obtaining or inviting Okuchukwu for statement.

Continuing, the Appellant submits that the trial Court was in grave error when it concluded and held that the failure of the Appellant to call evidence of the person riding the motorcycle with him on that day meant that the Appellant’s evidence was lacking of any probative value and therefore relied on that conclusion to find him guilty of the offence charged. Further, the Appellant submits that for the prosecution to succeed in their allegation against the Appellant, it must prove its case beyond reasonable doubt, and not to depend on the failure of the Appellant to call particular evidence or any at all.

Furthermore, the Appellant submits that the trial Court

must first evaluate the totality of the evidence called by the prosecution in order to determine whether they (the prosecution) have proved their case beyond reasonable doubt, only afterward, can the trial Court consider the defence or explanation of the Appellant on any relevant fact. The Appellant states that the trial Court ought not to have believed PW2 without evidence that she had any burn on herself, citing MUKA & ORS V. STATE (1976) LPELR-1924(SC).

Finally, the Appellant submits that the trial Court relied wholly and solely on the contradictory, incredible and doubtful evidence of PW2 and the inadmissible hearsay evidence of PW1, PW2, PW4, PW5 and PW6 to convict the Appellant, without more. There was no single credible and reliable evidence or corroborative evidence that inexorably pointed to the guilt of the Appellant. The Appellant further urge the Court to hold that the trial Court failed to evaluate the evidence placed before it, contrary to establish and applicable legal principles.
The Appellant urge the Court to allow the Appeal.

RESPONDENT’S SUBMISSIONS
The Respondent submits that the prosecution has discharged the

burden of proving its case beyond reasonable doubt to warrant the conviction of the Appellant by the trial Court. The Respondent states that in the instant case, the prosecution was able to establish through the evidence of PW1 who gave credible, cogent and compelling Evidence in-chief which was not controverted by way of Cross-Examination or discredited. The Respondent submits that the prosecution was diligent in proving all the ingredients of the offence charged beyond reasonable doubt, citing the case of OBIAKOR V. THE STATE (2002) 6 SCNJ 193 at 202 and THE STATE V. AIBANGBEE (1988)7 SC (PT.1) 96 AT 132-133 in support.

Furthermore, Learned Counsel for the Respondent submitted that it is the duty of the prosecution to prove all the ingredients of the alleged offence of criminal conspiracy and kidnapping, as in the case of ODOGWU V. STATE (2019) LPELR-48292 (CA) at 10-11. The Respondent states that in this case, the evidence of PW1 was cogent, direct and also the evidence of PW2 proved that she was forcefully seized, taken away against her consent into the bush where she spent about four (4) days with the Appellant. On the identification of the

Accused/Appellant, the evidence of PW2 as stated above explained everything that happened when she was abducted at gun point and taken away on a motorcycle. She was not blindfolded until the motorcycle rider (the Appellant) fell down along with victim (PW2) and both suffered burns from the motorcycle exhaust, she was then blind folded and taken into the bush to avoid seeing and identifying her captors on the spot. The Appellant stated in his evidence that he knows PW2, referred to page 12 and 106 of the Record of Appeal.

Continuing, the Respondent submitted that PW2 recounted the names being called while with her abductors in the bush to the vigilante who went after the Accused/Appellant at the earliest opportunity and that was immediately after regaining her freedom from her abductors. The Respondent states that the Appellant throughout the proceeding at the lower Court never denied the names mentioned by PW2. To buttress this point, the Appellant in his Extra-Judicial Statement listed the names of Felix, Anene and Chukwu or Emeka (at pages 7-11 of the Record of Proceedings) as persons NSCDC men arrested together with him at the location they were

living and met them sleeping after coming back from work. The Respondent relied on SULAIMON V. STATE (2018) LPELR-44280(CA).

The Respondent states that on the issue of contradictory statement/evidence on the recognition and identity of PW2’s captors including the Appellant, they are not material and fundamental to destroy and discredit the prosecutions’ witnesses and as such should be treated as minor and goes to no issue, it is mere inconsistencies and the Respondent relied onOCHANI V. STATE (2017) LPELR-42352 (SC) and the case of PRINCENT & ANOR V. STATE (2002) LPELR-2925 (SC).

Furthermore, the Respondent submitted that PW2 gave a good explanation as to the contradiction during Cross-Examination, that she was not hearing well as at the time of the statement, and that was good explanation, the discrepancy or disparity between a previous written statement and subsequent testimony does not destroy the credibility of the witness evidence, relied on ANJOLA V. STATE (2012) LPELR-19699(CA). In the instant case, the contradictions are not fundamental because they do not amount to disparaging of other pieces of evidence adduced by other

prosecution witnesses (PW1; PW3-PW6) their uncontroverted evidence was corroborated by PW2 and which establish the ingredients of offences.

On the second offence of criminal conspiracy, the prosecution must prove the following:
i. An agreement between two or more persons to do or cause to be done an illegal act or an act which is not illegal but by illegal means.
ii. Where the agreement is other than agreement to commit an offence that some act besides the agreement was done by one or more parties in furtherance of the agreement, and
iii. Specifically that each of the accused individually participated in the conspiracy, relied on NYONG V. STATE (2019) LPELR-49120 (CA).

The Respondent submitted that the proof of criminal conspiracy is generally a matter of plausible inference deduced from certain criminal acts of the accused done in pursuance of an apparent criminal purpose in common between them. This is because it is generally recognized in law that in a charge of criminal conspiracy, proof of actual agreement which is an essential ingredient of the crime is not always easy to come by. The Respondent relied on AKINLOLU V. STATE (2017) LPELR-42670(SC).

Learned Counsel for the Respondent urge the Court to infer that from the evidence before the lower Court, the offence of criminal conspiracy against the Appellant and the other accused was properly established and the Court was right to have convicted them of same. On proper identification of the appellant by PW2, the Appellant contended in Paragraphs 4.2,2 and 4.3.26 of his brief of argument that PW2 never made a statement before the identification parade conducted by men of NSCDC. They urge this Court to discountenance the insinuation being peddled by the Appellant.

The Respondent submit that she (PW2) had already lodged a complaint to the vigilante before her son took her away for medical checkup and treatment due to the trauma and physical maltreatment she passed through in the hands of her abductors. See page 103 of the Record of appeal. On the first issue the Respondent submits that the prosecution has proved its case beyond reasonable doubt and urged the Court to resolve its issue one in their favour.

On issue two, the Respondent submitted that what the prosecution need to prove on the whole to sustain conviction against

the defendant/appellant is: whether on the whole the Defendant/Appellant has been sufficiently identified by the prosecution evidence before the Court as the person or one of the persons who abducted PW2 in view of the fact that PW2 spent about 4 days with her captors or abductors, sufficient enough for her to see her abductors physically, to know their voices and recognize them in the event of her release from their custody.

The Respondent further submits that in this regard, the evidence of PW3, PW5 and PW6 corroborated the evidence of PW2 on the point that the Appellant was recognized during the identification parade conducted as one of the persons who abducted PW2. The other fact established was that the identification parade conducted on the 23/2/2018, in which PW2 identified the Appellant reinforced the evidence of PW2 and the case for the prosecution.

Continuing, the Respondent submits that the Appellant was properly identified as one of her abductors. More importantly, in her evidence during Cross-Examination, PW2 in her evidence claimed to have known the accused persons including the Appellant. The Appellant together with others had one time

or the other worked for her in her house and they lived in the same neighbourhood. Furthermore, that PW2’s evidence was corroborated by the evidence of PW1, PW3-PW6 who were involved in the arrest, investigation and interrogation of the accused including the Appellant when PW2 was kidnapped.

The Respondent submit that it is the primary responsibility of the Court to duly consider and evaluate the totality of the available evidence, and the defence of the Appellant could not, in any way discredit or rebut the testimony/evidence adduced. The statement and testimony of the Appellant were fabricated and not corroborated by the evidence adduced. Relied on the case ofUSMAN V. STATE (2014) LPELR-22879 (SC) to urge the Court to discountenance the submissions of the Appellant.

The Respondent continued to submit that the prosecution has discharged the burden of proving its case beyond reasonable doubt to warrant the conviction of the appellant by the trial Court. Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) presumes an accused person innocent until he is proved guilty. Accordingly, the burden of proof placed on

the prosecution is not discharged until the guilt of an accused person is properly established. The Respondent relied onIDEMUDIA V. STATE (1999) 7 NWLR (PT. 610) 202 at 215.

Furthermore, the Respondent submits that all the concerted attacks on EXHIBIT P1 in this Appeal cannot also exonerate the Appellant from the offences alleged against him. They have responded to each and every allegation raised in this Appeal by the Appellant and have advanced cogent argument in support of the issues. They humbly urge this Court to resolve the Appellants issue 3 against him and dismiss this Appeal and reaffirm the Judgment of the trial Court delivered on the 19th day of June, 2019.

APPELLANT’S REPLY BRIEF ON POINT OF LAW
The Appellant submits in response to the Respondents Paragraph 4.11 of their brief that the only possible inference to be drawn is that “we” referred to the marker of that statement and the other person (Okechukwu) named therein.

The Appellant argued that assuming and not conceding that the Respondent was right that the statement meant that the Appellant merely named Okuchukwu as the owner of the

“machine” and not riding with the Appellant, the Appellant submits that alone did not negate the effect of the failure of the NSCDC to investigate that material allegation of fact, which was that the Appellant sustained the burn while riding Okuchukwu’s bike.

The Appellant submits without hesitation that the Respondent cannot urge or cause this Court to disturb or interfere with the findings of fact made by the trial Court on this point, without either a Cross Appeal or Respondents Notice. The trial Court found, very rightly, that there was no explanation by the prosecution for the contradictions, especially between EXHIBIT P1 and testimony of PW2.

The Appellant further states that it was a positive and unequivocal finding of fact and there is no Cross Appeal or Respondents notice challenging that finding of facts. A careful reading of the Respondents argument will show that the Respondent is actually seeking this Court to interfere with that finding of fact and to hold that the prosecution gave explanation for the contradictions in the prosecution’s case without actually filing a Cross Appeal or Respondents Notice. This point

of law is in line with the decision of the Supreme Court in the case of BHOJSONS PLC V. KALIO (2006) LPELR-777(SC).

The Appellant urge this Court to discountenance every submission made by the Respondent which is based on the notion that PW2 and indeed the prosecution gave any good explanation to the contradictions in the prosecution’s case and that the explanation given by PW2 referred to her difficulty in hearing, which relate to inability to recall what she heard or did not hear. However, the issue in question was to the difference between what she told the NSCDC and what she testified before the trial Court. The Appellant further submits that the explanation that can excuse such contradictions, in that circumstance, must be such that touches on her memory or ability to recall things.

The Appellant urge the Court not to disturb the findings of the trial Court that the prosecution did not provide any explanation for the contradiction and accordingly hold that the contradictions in the prosecution’s case were material, fundamental and fatal to the prosecution’s case.

In response to the Respondents argument in Paragraph 4.19

and 4.20, the Appellant submits that their grouse and argument was to the effect that the making of EXHIBIT P1 long after the PW2 had contact with the Appellant at the NSCDC detention facility made EXHIBIT P1 a documentary afterthought which the trial Court ought to have warned itself against and treated with circumspection. The Appellant submits that the purported complaint made by PW2 to a vigilante group did not render EXHIBIT P1, valid, it was an afterthought.

In continuation of the reply, the Respondent’s argument in Paragraph 5.10 of its brief, the Appellant submits that this is far from established position of the law that the defence and evidence of an accused person, however slight, fanciful, stupid or doubtful must be considered and evaluated by the trial Court, citing EDOKO V. STATE (2015) LPELR-24402(SC) and WILLIAMS V. STATE (1992) LPELR-3492(SC).

The Appellant states that the Respondent misconceived the argument in context and there is no disputation as to the primary responsibility of the trial Court to evaluate evidence. The contention of the Appellant in this Appeal is that the trial Court failed to properly and in some

instances failed completely to evaluate the evidence before it. The Appellant submits that all the cases cited by the Respondent support their case that the trial Court was under a duty to evaluate and consider the Appellants evidence and defence regardless of whether the trial Court thought such evidence could or could not discredit or rebut the evidence adduced, or whether such evidence was fabricated and uncorroborated by the evidence adduced or not.

Continuing, the Appellant submits that it is only after such evaluation of the evidence of the accused persons vis a vis the prosecution’s evidence could the trial Court come to a conclusion that such evidence was fabricated or uncorroborated; not without or before the evaluation of the Appellant’s evidence as did the trial Court in the instant case.

The Appellant urge this Court to hold that the reason given by the Respondent for the failure of the trial Court to evaluate the evidence of the Appellant is not tenable in law and finally urged the Court to allow the Appeal.

RESOLUTION
The Appellant was arraigned along 3 others before the trial Court on a two count charge as

highlighted earlier in this Judgment. It is trite in all Criminal trials that the burden of proof is constantly on the Prosecution and the standard is proof beyond reasonable doubt, see the case of AKIBU V STATE (2019) LPELR-47630(SC).

For the offence of kidnapping, the ingredients required to be proved were restated in the case of OKAILKWO V THE STATE (2017) LPELR-42565(CA) as follows:
“On how the prosecution can succeeded in proving the offence of kidnapping beyond reasonable doubt, the Supreme Court state in Bello Okashetu v. The State (2016) 15 NWLR (Pt.1523) 126 at 148 – 149, per Ogunbiyi, JSC as follows: “In order for the prosecution to succeed under this Court, it has to prove the following facts beyond reasonable doubt. (i) That the victim was seized, and taken away by the accused person. (ii) That the victim was taken away against his consent. (iii) That the victim was taken away without lawful excuse. The offence of kidnapping is complete when the victim is carried away against his wish. ” Per ADUMEIN, J.C.A.

There is no challenge to the fact that PW2 was kidnapped. And also the 3rd ingredient which is the fact that it was against her

wish is not an issue. The ingredient which is the crux of this Appeal revolves around the first ingredient which is the link to the Appellant as one of those who kidnapped the victim against her will. The Appellant contended strongly that there are contradictions in the case of the prosecution as highlighted in the Appellant’s Brief.
Contradiction is described in the case of FRIDAY V STATE (2014) LPELR-23003(CA) as follows:
“Now, the word “contradiction” comes from two Latin words “contra” which means “opposite” and “dicere” which means “to say”. Therefore to contradict is to speak or affirm the contrary. A piece of evidence is contradictory to another when it asserts or affirms the opposite of what the other asserts, and not necessarily when there are some minor discrepancies, in say details between them. In other words, contradiction between two pieces of evidence goes rather to the essentiality of some being or not being at the same time. Whereas minor discrepancies depend on the person’s status and capacity for observing meticulous details. See Dagayya v. State (2006) 7 NWLR (Pt. 980) 637. Also in Ayo Gabriel v. The State (1989) 5 NWLR

(Pt. 122) 457 at 468. Nnaemeka-Agu JSC had this to say: “A piece of evidence contradicts another when it affirms the opposite of what the other evidence has stated, not when there is just a minor discrepancy between them. …..Two pieces of evidence contradict one another when they are by themselves inconsistent. On the other hand, ‘a discrepancy’ may occur when a piece of evidence stops short of, or contains a little more than, what the other piece of evidence says or contains some minor differences in details.” Per OWOADE, J.C.A.
It is trite that it is only material contradictions that can affect prosecution’s case, as held in a plethora of cases, see IKEMSON & ORS V STATE (1989) LPELR-1473(SC) which said thusly:
“…when the evidence of witnesses violently contradict each other, then that is a danger signal. A trial Court should not believe contradictory evidence. Contradictory means what it says – contra-dictum – to say the opposite. Contradiction should be on a material issue to amount to material contradiction….. The need for explanation as postulated in Onubogu & Anor. v. The State (1974) 9 S.C.1 at p.20 arises only when there

are material contradictions.” Per OPUTA, J.S.C.
The explanation as settled in ONUBOGU & ANOR V THE STATE (1974) 9 S.C. 1 at 20 is required to obliterate a contradiction can come from any of the prosecution witnesses and not necessarily from the witness whose evidence is considered contradictory, see AREHIA V STATE (1982) LPELR-543(SC) where it said:
“Now the principle laid down in the case of Onubogu & Anor is that where there are contradictions in the testimonies of the prosecution witnesses on a material fact and the contradictions are not explained by the prosecution through any of its witnesses, the trial Court should not speculate on or proffer the explanation for such contradictions and thereby pick and choose from the evidence of the prosecution witnesses that which it will believe; see Boy Muka & Ors v. The State (1976) 9 & 10 S.C. 305 at p. 325.
What amounts to material contradictions that can affect the case of the prosecution is stated thus:
“What amounts to material contradiction depends on the circumstance of each case. They are contradictions or inconsistencies in the evidence of the witnesses for the

prosecution which are substantial and fundamental to the main issues before the Court and therefore necessarily create some doubt in the mind of the trial Court that an accused is entitled to the benefit there from. Where there are contradictions in the testimonies of the prosecution witnesses on a material fact and the contradictions are not explained by the prosecution through any of the witnesses, the trial Court must not be left to speculate or proffer explanation for such contradictions, so that it will only find itself in a position where it will pick and choose from the evidence of the prosecution which it will believe. Contradictions in the testimony of witness are inevitable but what the law frowns at is material contradictions as they are fatal to the case of the prosecution… Onubogu v State (1974) 9 SC 1, Nasamu v State (1976) 6 SC pg 153, Enahoro v Queen (1965) 1 All NLR 125, Ibe v State (1992) 5 NWLR Pt. 244 pg 642, Kalu v State (1988) 4 NWLR pt. 90pg 503, Ejigbadero v State (1978) 10 SC P. 81, Omonga v State (2006) 14 NWLR pt. 1000 pg 532.” Per ADEKEYE, J.S.C
The Appellant listed instances he considered as material

contradictions in the case of the prosecution as follows:
i. How the victim, PW2 identified the Appellant;
ii. Whether there was identification parade, when and how the victim identified the Appellant;
iii. The actual number of days the victim spent with the abductor because she said 4 days while her son, PW5 said she was abducted on 17th and they got a call to pick her on the 19th.
iv. How the appellant was mentioned by the victim when she said SIMEON, EMEKA, OKUKWU AND CHALATE abducted her and her son told the Court that PW2 told him that she was abducted by the 1st and 4th accused persons.
v. The accounts of PW3 and PW4 (NSCDC investigators) are contradictory.
The trial Court held that the contradictions are not material as to affect the case of the prosecutions. Let us start with item iv above, it is clearly on record that the Appellant was the 1st accused and his name is Simeon. How and where is the contradiction? Whether the Appellant is referred to as the 1st accused or called by his name Simeon both refer to the Appellant. The Appellant was not misled in any way. It is not a contradiction. The next immaterial contradiction

relates to the number of days the victim was held by the kidnappers. The ingredients of the offence did not require a particular period of stay with the kidnappers. Once there was a kidnap and if proved, the offence is complete.
The identity of the Appellant is the central issue in this Appeal. The victim, PW2 told the Court that at the point of kidnap, she was made to sit on a motorcycle but as they were going they fell down and both herself and the rider got burns from the exhaust and that was the point she was blindfolded. So she saw the rider of the bike. Furthermore, she told the trial Court that when they got to the forest, the blindfold was removed and she recognized the Appellant and called his name. She also said it was the Appellant who used her phone to call her relations for ransom.
The contentious evidence also alleged to be contradictory is the evidence of PW3 and PW4. PW3 told the Court that they conducted identification parade during which the victim identified the 4 suspects. The scenario in the case of GHOHOR V STATE (2013) LPELR- 20293 (CA) is not in any way similar to the facts of this Appeal. The Appellant also admitted that he

sustained a burn and was treated by a chemist. They were led there by the Appellant and as at the time of hearing, the wound had not healed. The witness who was an investigator told the Court that some of the suspects were construction workers while a house was being constructed for the victim. PW4 told the Court, Exhibit P5B was recovered from the Appellant. He said the identification parade was conducted on the 29/2/2018 when the victim identified the suspects. PW6 another officer with NSCDC told the Court that an identification parade was conducted on the 23/2/2018. The contention is whether the identification parade was held on 23/2/2018 or 28/2 2018 and whether it involved 11 people or 14 people. The seeming contradiction is a minor discrepancy which is not material to the case of the prosecution because there is already established a clear identity of the Appellant by other pieces of evidence. Therefore, even if the evidence of the identification parade is discountenanced, there is adequate evidence to link the Appellant to the offence. He was the one who had a burn from the motorbike exhaust; the victim identified him, called him by his name and also

recognized his voice. Furthermore, he made the calls for ransom. There is no material contradiction more so, the Appellant was not misled. I reproduced holdings of the apex Court earlier in the Judgment that it is only when a contradiction is material that it can affect the case of the prosecution. I do not find any here. I agree with the trial Court in his findings that there was no material contradiction.
The other area identified relates to the evidence of PW2 and PW5 (victims son) as to whether PW2 knew the Appellant and his co accused before the incidence when compared with her extrajudicial statement. The alleged contradiction and how it arose was explained by the victim when she said she had hearing difficulty at the time she made her statement to the NSCDC after the incident. Her statement was recorded for her. The law is that when such contradiction is not explained by any of the prosecution witness then it becomes a problem but here the victim whose evidence in the box and her prior statement contains discrepancies was explained. In view of the explanation given by the victim, the alleged contradiction is of no moment and can no longer affect the

case of the prosecution, see AREHIA V STATE (supra). I also agree with the trial Court that the contradiction is not material. The identity of the Appellant is not in doubt, the arguments about recognition and identification is mere rhetoric’s and is of no value. There is evidence linking the Appellant to the kidnapping of the victim. That is what the law requires and which was established.
I agree with the Respondent that in the trial Judge’s finding that there was no explanation to the seeming contradiction in PW2 oral testimony and EXHIBIT P1 was perverse and contrary to evidence. The witness when confronted told the Court she did not understand the question because she had hearing problems at the time. In any case, there was evidence to pin the Appellant to the offence. The Court contrary to the assertion of the Appellant is empowered by Order 4 Rule 3 and 4 to make any order as the case may require notwithstanding the fact that no Notice of Appeal or Respondent’s Notice has been given and the purpose is to ensure the just determination of any issue in controversy between the parties.

The next point in issue to be resolved

relates to the finding made by the trial Court that the Appellant should have called evidence or the person he said he was with when he sustained the burns on his leg. Appellant alleged that he was riding with his brother one “Okechukwu”. He did not give details of the said Okechukwu to enable the security outfit to investigate and did not call him to testify to that effect that the burns on the leg of the Appellant was sustained in his presence. This is raising an alibi, which is saying I was not at the scene of crime but somewhere else. An Accused Person who seeks to rely on the defence must however provide accurate details of where he was at the time the offence was committed. He must present evidence from persons who were with him at the time. This is necessary to demonstrate that he was not in a position to commit the offence with which he was charged. The defence must be raised timeously or at the first opportunity with details to give the prosecution or police the opportunity to investigate to ascertain the truth or otherwise of the defence. The onus is on the defence to establish the alibi. If the prosecution adduces sufficient evidence to

fix an accused person at the scene of crime his alibi is demolished. See SHEHU VS. STATE (2010) 8 NWLR (PT. 1195) 112; ADEWUNMI VS. STATE (2016) 10 NWLR (PT. 1521) 614; OSUAGWU VS. STATE (2013) 1-2 SC (PT. 1) 37; EZEKWE VS. STATE (2018) 3-4 SC (PT. I) 144.
The Appellant did not give the relevant particulars of his brother Okechukwu, who he alleged he was with. It is not the duty of the Respondent to search for him when the information given is scanty. There is also the evidential burden which oscillates and is not as static as the burden of proof, seeDAUDU V FRN(2018) LPELR- 43637(SC) where the apex Court explained the evidential burden thusly:
“Incidence of evidential burden of proof, this is the burden of adducing evidence to prove or disprove a particular fact. When a party wishes the Court to believe any fact, then the burden of proof as to that fact rests on that party. The party bearing the legal burden of proof must first make out a prima facie case in his favour. This means that he has to adduce enough evidence which, if believed, may reasonably justify a finding that the facts he seeks to prove exist. But whether this burden has been

discharged cannot be known until at the end of the trial and the Court actually gives a verdict in his favour. If the Court disbelieves his evidence then the burden is not discharged. However, making out such a case he has discharged the evidential burden cast on him because he has tendered the evidence basically necessary for the establishment of this case. It then becomes necessary for his opponent to call contrary evidence to challenge the case set up by the party. By the necessity to adduce this contrary evidence, the evidential burden of proof is shifted unto the opponent. Of course, he is not bound to supply any evidence at all. But by so doing, he runs a great risk of the Court finding against in denial of allegations of the allegations of the other party.”
The evidence necessary to settle the fact that the Appellant was not at the scene of crime should come from the Appellant’s relation Okechukwu, who was named as the owner of the motorcycle at Ugwobi. If the Appellant said he was riding the bike with Okechukwu when he got the burns, he should have called the said Okechukwu to corroborate his evidence against the backdrop of the

prosecution’s evidence showing he was one of the kidnappers. The duty to call evidence on the prosecution is to prove the offence and not to call evidence in defence of the Appellant. The duty of calling him rests squarely with the Appellant because that evidence must be introduced by Okechukwu, that’s the evidential burden on the Appellant. The Appellant has lost sight of the fact that there was evidence to the contrary against the Appellant from PW2, that Appellant and PW2 got the burns when they fell down on their way to the forest. That is enough to fix the Appellant to have participated in the kidnapping. With that failure, the fact that he was with Okechukwu remained unproved and the evidence against him therefore stands unchallenged to settle the fact that the Appellant was one of those who kidnapped PW2 and the second ingredient was proved by the prosecution.

Assuming the prosecution failed to investigate the alibi, is it in all cases that the failure will have adverse results to the case? The apex Court in the case of EBRI V STATE (2004) LPLER-996(SC) settled that question when it held:
“Where evidence of prosecution witnesses

specifically and unequivocally pins down an accused person to the scene of crime and says that he committed the offence, failure to investigate the alibi by the police will not result in an acquittal of the accused in such a situation, the failure to investigate the alibi is not only superfluous but also otiose.” Per TOBI, J.S.C.

The Appellant complained that the trial Court failed to evaluate evidence and that occasioned a miscarriage of justice. The law is settled that a Party complaining that evidence was not evaluated must identify such piece of evidence which was not evaluated, see STEMC0 LTD V ESSIEN (2019) LPELR-47475(CA); RICHARD IDOWU AKANMODE VS. MELAYE DANIEL DINO (2008) LPELR- 8405(CA) and IGAGO VS. STATE (1999) LPELR-1442(SC) which held:
“…It is accepted that Appellant who relies on improper evaluation of evidence to set aside the judgment has the onus to identify or specify the evidence improperly evaluated or not evaluated and to show convincingly that if the error complained of had been corrected, the conclusion reached would have been different and in favour of the party, complaining of wrong evaluation.”

The settled legal position is that the party complaining of failure to evaluate evidence must identify in detail the piece of evidence not evaluated otherwise it becomes a bogus and unsubstantiated allegation. The Appellant herein merely complained about the outcome of evaluation and did not show the piece of evidence not evaluated. There is a difference between non evaluation and unfavourable evaluation which is what the Appellant frowns at in this Appeal.
The evidential burden that shifts was not discharged by the Appellant; it concerns the alibi raised that Appellant was with the named person who is the appropriate person to say that the Appellant was elsewhere. Correct findings cannot occasion miscarriage of Justice. The evaluation done is based on the evidence before the Court below and as required by law and the authority of BOY MUKA V THE STATE (1979) 10-11 SC 305 cited by the Appellant. The trial Court considered the essential elements for due evaluation and there was nothing perverse in the findings made towards the conviction and sentence. The trial Court dutifully evaluated evidence before arriving at the final decision to convict the Appellant.

The complaint was not made out and is hereby discountenanced.

The Appellant also complained that his defence was not considered without identifying the particular defence not considered, it is worthy of note that the Appellant was represented by Counsel during trial. The demand to consider all defence refers to any defence disclosed by the evidence before the Court, the Court can not consider defences at large and with no bearing to the facts of the case being considered. The Appellant did not name the defence disclosed by evidence which was not considered by the trial Judge.

In the light of above, the ingredients of the offence were established and consequently the findings by the trial Judge on the guilt of the Appellant stand.

The Appeal lacks merit and is hereby dismissed. The Judgment of the trial Court delivered on the 19th June, 2019 is hereby affirmed.

PETER OLABISI IGE, J.C.A.: I have read the lead judgment delivered by my learned brother YARGATA BYENCHIT NIMPAR, JCA in APPEAL NO. CA/A/1179C/2019.
I agree with the reasoning and conclusion therein.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my

Learned brother, YARGATA BYENCHIT NIMPAR, JCA. I agree with the reasoning, conclusions and orders therein.

Appearances:

ACHINEKE GODWIN, ESQ., with him, WILLIAMS WOBODO, ESQ., and LEISI E. NWONYE, ESQ. For Appellant(s)

IBRAHIM SANI MOHAMMED, SAN – AG KOGI STATE with him, STANLEY E. ASULE, ESQ., (ASST. DIRECTOR, MARYANN OXFORD PRINCIPAL LEGAL OFFICER) and OJOMA J. ETUBI, ESQ. – (LEGAL OFFICER MOJ, KOGI) For Respondent(s)

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