KPALADJO v. STATE
(2022)LCN/16948(CA)
In The Court Of Appeal
(ASABA JUDICIAL DIVISION)
On Friday, March 25, 2022
CA/AS/631C/2019
Before Our Lordships:
Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal
Joseph Eyo Ekanem Justice of the Court of Appeal
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Between
INNOCENT KPALADJO APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
THE BURDEN AND STANDARD OF PROOF IN CRIMINAL CASES
The burden of proof in a criminal case lies on the prosecution to prove beyond reasonable doubt that the accused person committed the offence with which he is charged. See Sections 131 and 135 (1) and (2) of the Evidence Act. The burden does not shift.
The phrase “proof beyond reasonable doubt” does not mean proof beyond the shadow of doubt. It simply means establishing the guilt of an accused person with compelling and conclusive evidence. It also means a degree of probability and is not attained by the number of witnesses called but it depends more on the quality of evidence relied upon by the prosecution. See Philip v. State (2019) 13 NWLR (Pt. 1690) 509, 534 and Jibrin v. FRN (2020) 4 NWLR (Pt. 1714) 315, 336. PER EKANEM, J.C.A.
ELEMENTS OF THE OFFENCE OF KIDNAPPING
Though not specifically stated in the information, form the wording of the charge, it is clear that the appellant and the co-accused persons were charged under Section 364 (2) of the Criminal Code Law of Delta state for kidnapping. The elements of the offence are that:
1. The accused person unlawfully imprisoned another person within Nigeria.
2. The victim is imprisoned in such a manner that:
(a) He is prevented from applying to a Court for his release; or
(b) He is prevented from discovering to any other person of the place of his imprisonment; or
(c) Prevents any person entitled to have access to him from discovering where he is imprisoned.
In respect of demanding with menaces, the elements of the offence are:
1. The existence of a demand.
2. The demand was made with a threat.
3. The demand was made with intent to steal.
See Akindipe v. State (2009) All FWLR (Pt. 452) 1163 or (2008) 15 NWLR (Pt. 1111) 560, 571. PER EKANEM, J.C.A.
ELEMENTS OF THE OFFENCE OF ARMED ROBBERY
The elements of the offence of armed robbery are that:
1. There was a robbery or series of robberies.
2. The said robbery or each of the robberies was armed robbery.
3. The appellant was the robber or one of the robbers.
See Bozin v. State (1985) 7 SC 450 and Attah v. state (2010) 10 NWLR (Pt. 1201) 190. PER EKANEM, J.C.A.
FACTORS TO CONSIDER WHEN CONSIDERING THE EVIDENCE OF IDENTIFICATION OF AN ACCUSED PERSON
In considering evidence of identification of an accused person, the Court will take into consideration the following factors:
1. The circumstances in which the eye witness saw the accused person.
2. The length of time the witness saw the accused person.
3. The lighting condition at the crime scene
4. The opportunity of close observation of the accused person by the witness.
5. The description of the accused person given to the Police soon after the incident.
See Ikemson v. State (1989) 3 NWLR (Pt. 110) 455, Ndidi v. State (2007) 13 NWLR (Pt. 1052) 633 and Lawali v. State (2019) 4 NWLR (PT. 1663) 457. PER EKANEM, J.C.A.
CONDITIONS TO BE PRESENT FOR AN IDENTIFICATION PARADE TO BE NECESSSARY
An identification parade is only necessary:
1. Where the victim did not know the accused person before and his first acquaintance with him is during the commission of the offence.
2. Where the victim was confronted by the offender for a very short time.
3. Where the victim due to time and circumstances, might not have had the full opportunity of observing the features of the accused.
See Afolalu v. State (2010) 16 NWLR (Pt. 1220) 584 and Wisdom v. State (2017) 4 NWLR (Pt. 1686) 446, 468.
However, an identification parade is unnecessary where there is certainty or no dispute about the identity of the perpetrator of the crime, where the victim recognizes the offender while the matter is still fresh in his mind as the person who committed the crime or where notwithstanding that the encounter was a fleeting one and the victim did not previously know the assailant, the victim had a struggle encounter with the accused and thereby an opportunity of a close encounter to observe the features of her attacker which she described unscathed. See Ikemson v. State supra, Ugwu v. State (2020) 15 NWLR (Pt.1746) I, 26 and Salau v. State (2019) 16 NWLR (Pt. 1699) 399, 411. PER EKANEM, J.C.A.
JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): The appellant was the 1st accused person out of five accused persons who were arraigned at the High Court of Delta State sitting at Asaba (the trial Court) on a three-count charge of conspiracy to commit a felony, kidnapping and demanding with menaces. The 3rd accused person escaped from custody while the 5th accused person jumped bail. Three accused persons therefore stood trial for the following offences:
1. Conspiracy to commit a felony, to wit: kidnapping punishable under Section 516 (a) of the Criminal Code Law, Cap C 21, Vol. 1 of The Laws of Delta State of Nigeria, 2006.
2. Kidnapping punishable under Section 364 of the Criminal Code Law.
3. Demanding with menaces punishable under Section 406 of the Criminal Code.
4. Armed robbery punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap R 11 Vol. 14, Laws of The Federation of Nigeria, 2004.
The accused persons including the appellant pleaded not guilty to the charge and the prosecution, in a bid to prove its case, called three witnesses and tendered six exhibits which are the extra-judicial statements of the appellant and the other accused persons that were admitted in evidence after trial-within-trial. The appellant testified for himself and did not call any other witness. After taking addresses of counsel, the trial Court in its judgment on 29th June, 2018 found that the prosecution had established its case against the appellant and his co-accused persons. It accordingly sentenced the appellant to three years imprisonment for conspiracy, five years imprisonment for kidnapping, four years imprisonment for demanding with menaces and ten years imprisonment for armed robbery. His co-accused persons were given similar sentences.
Aggrieved by the decision, the appellant appealed to this Court by the means of a notice of appeal which was filed on 2nd August, 2018. The notice of appeal was subsequently amended by the leave of this Court.
The facts of the case leading to this appeal as presented by the prosecution are that on 8th May, 2011, the PW1 (Mrs. Oborevwori Obore) was returning home from church service in her car when a Camry car was driven to block her car. Two armed men emerged from the car and ordered her to go out of her vehicle. They took her back to the back seat of her car where one of them sat with her and the other one sat in the front of the car. The third person in the group drove the car and she struggled in vain. They used her head tie to blindfold her and drove to an unknown destination.
She informed them that she was five months pregnant and hypertensive, and they removed the blindfold and on opening her eyes she saw a girl who gave her name as Blessing, another kidnap victim. The PW1 was chained to the girl’s hand and legs. Apart from her car, the assailants collected her two wedding rings, gold wrist watch, earrings, shoes, bag, Blackberry touch phone and cash to the tune of N14,500.00. After two days they used her phone to call her pastor, demanding for N50 Million but he offered N200,000.00. They flared up and threatened to kill her and use her body parts for rituals. The kidnappers also called her husband and demanded for N50M and when he told them that he had no N50 Million to give them, they threatened to kill her. They unmasked her in the toilet where she was kept and she recognized the appellant as the person that chained her to the other victim.
The PW1’s husband reported the matter to the SSS which tracked the calls from the kidnappers leading to the arrest of the appellant in a hotel and the rescue of the appellant from where she was kept. Upon her rescue, she was taken to the Ughelli Area Command of The Nigeria Police where she met the appellant and immediately she saw him, she quickly recognized him and later came to know him as “Innocent” when the SSS men called his name. The appellant made a statement to the SSS which the trial Court held to be confessional
The appellant testified, denying the offences.
In the appellant’s brief of argument settled by Olayiwola Afolabi, Esq., the following issues have been formulated for the determination of the appeal:
1. Having regard to the evidence on record coupled with the denial by the appellant of the offences alleged against him and the absence of identification parade by the SSS whether the prosecution can be said to have proved the criminal charges against the appellant beyond reasonable doubt as required under criminal jurisprudence. Arising from ground two of the amended notice of appeal.
2. Having regard to the constitutional duty imposed on the trial judge to look at the entire statements of the appellant in its entirety and not in parts, and the wrong misconception of the trial judge that the statement of the appellant was confessional, whether the trial judge was right in using the said statement of the appellant as one of basis to convict the appellant of the offences alleged against him arising from ground three of the amended notices of appeal.
In the respondent’s brief of argument settled by Mrs. O. Eyesio, (Senior State Counsel, Ministry of Justice, Delta State) a single issue is distilled from the grounds of appeal for the determination of the appeal, to wit:
Whether in view of evidence adduced by the prosecution, the trial Court was right when it held that the prosecution proved the charges against the appellant beyond reasonable doubt.
I have read the grounds of the amended notice of appeal and it seems to me that they all revolve around proof of the offences that the appellant was charged with. It is therefore my view that this appeal can be determined under one issue, namely:
Was the trial Court right in holding that the prosecution had established the ingredients of the offences charged against the appellant?
Appellant’s counsel stated the trite principle of law that in criminal trials, the onus is on the prosecution to prove its case beyond reasonable doubt and that evidence on proof of crime must leave no room for speculation or create doubts. He stated that the identification of the appellant was carefully designed by the SSS to nail the appellant. He set out his reasons for so stating including delay by the PW1 in making her statement after her release. Again, counsel queried why appellant’s statement was obtained on 19th May, 2011 when he was arrested on 13 May, 2011. He contended that the PW1 waited for about twelve days after her release and six days after appellant purportedly made his statement, to write her statement. He noted that when she was asked if she told the SSS that it was the appellant who chained her leg, she prevaricated and told the Court that the SSS forgot to take down that portion in her statement. He stated that despite what he described as lingering doubt, there was no identification parade conducted to determine the genuineness of the identification of the appellant by the PW1. He submitted that the conduct of the PW3 in bringing the appellant before the witness was against the spirit of the law of identification. He referred to and relied on Alebiosu v. State (2016) LPELR-41359. He further submitted that the appellant was never rightly identified by the witness.
Counsel contended that it was intriguing that the statement of the witness was not brought to the attention of the appellant particularly about whether or not he was with her in the toilet. He again stated that the witness did not give a description of the appellant to the police at Ughelli and the SSS immediately after her release. He noted that no call data or log was tendered which would have revealed the identity of the kidnapper.
Continuing counsel submitted that the prosecution could not show that the appellant demanded money with menaces as it was not shown that appellant made the calls demanding for money. He called in aid Section 167 of the Evidence Act for what he termed the failure of the prosecution to tender appellant’s phone number and call log. He stated that the pastor who was called by the kidnappers was not called as a witness to state that it was the appellant who called him and the PW2 did not identify the appellant as the person who called him to demand for ransom. He went further to argue that the trial Court was wrong in convicting the appellant for armed robbery as there was no evidence that the appellant indeed robbed the PW1 of her car and other valuables. He stated that it was clear that three persons were involved in the armed robbery operation and that the PW1 did not refer to the appellant as one of the robbers.
Counsel posited that the trial Court erred in convicting the appellant of kidnapping as the prosecution did not prove the guilt of the appellant in that regard. He also posited that the conviction for conspiracy must also fail as the main charge of kidnapping was not proved. He argued that the trial Court did not follow the laid down procedure in writing judgment in a case that has both counts of conspiracy and substantive offence.
In arguing his issue 2, appellant’s counsel contended that had the trial Court borne in mind the case of Solola v. State (2005) LPELR- 3101, it would not have ruled that the statement of the appellant was confessional. It was his position that the statement shows that the appellant totally denied participation in the offences.
Respondent’s counsel set out the ingredients of the offences of kidnapping, armed robbery and demanding with menaces and referred to the evidence of PW1 and PW3 as well as the extra-judicial statement of the appellant. She noted that in the said statement the appellant narrated the plan and showed his participation though he tried to exonerate himself from guilt. It was her submission that his confessional statement was corroborated by the confessional statements of his co-accused persons. She submitted that the appellant identified himself in his confessional statement. She referred to Section 8 of the Criminal Code Law and submitted that the offence of armed robbery is a probable consequence of the commission of kidnapping of the PW1.
As regards the offence of conspiracy, she referred to the extra-judicial statement of the appellant and the evidence of the PW1 and argued that conspiracy could be inferred therefrom. She finally set out the said statement of the appellant and submitted that it was confessional.
In his reply, appellant’s counsel argued that by the single issue raised by respondent’s counsel the issues specifically raised in the appellant’s brief were not answered. The other point by appellant’s counsel touching on the necessity or otherwise of identification parade does not amount to a reply to a new point in the respondent’s brief. I shall therefore discountenance it. See Yanaty Petrochemical Ltd v. EFCC (2018) 5 NWLR (Pt. 1611) 97, 128
The burden of proof in a criminal case lies on the prosecution to prove beyond reasonable doubt that the accused person committed the offence with which he is charged. See Sections 131 and 135 (1) and (2) of the Evidence Act. The burden does not shift.
The phrase “proof beyond reasonable doubt” does not mean proof beyond the shadow of doubt. It simply means establishing the guilt of an accused person with compelling and conclusive evidence. It also means a degree of probability and is not attained by the number of witnesses called but it depends more on the quality of evidence relied upon by the prosecution. See Philip v. State (2019) 13 NWLR (Pt. 1690) 509, 534 and Jibrin v. FRN (2020) 4 NWLR (Pt. 1714) 315, 336.
The appellant was charged with committing the offences of conspiracy to commit felony, kidnapping, demanding with menaces and armed robbery. I will consider this appeal by first considering the complaints of the appellant in respect of the holding of the trial Court in respect of the substantive offences before treating the offence of conspiracy.
Though not specifically stated in the information, form the wording of the charge, it is clear that the appellant and the co-accused persons were charged under Section 364 (2) of the Criminal Code Law of Delta state for kidnapping. The elements of the offence are that:
1. The accused person unlawfully imprisoned another person within Nigeria.
2. The victim is imprisoned in such a manner that:
(a) He is prevented from applying to a Court for his release; or
(b) He is prevented from discovering to any other person of the place of his imprisonment; or
(c) Prevents any person entitled to have access to him from discovering where he is imprisoned.
In respect of demanding with menaces, the elements of the offence are:
1. The existence of a demand.
2. The demand was made with a threat.
3. The demand was made with intent to steal.
See Akindipe v. State (2009) All FWLR (Pt. 452) 1163 or (2008) 15 NWLR (Pt. 1111) 560, 571.
The elements of the offence of armed robbery are that:
1. There was a robbery or series of robberies.
2. The said robbery or each of the robberies was armed robbery.
3. The appellant was the robber or one of the robbers.
See Bozin v. State (1985) 7 SC 450 and Attah v. state (2010) 10 NWLR (Pt. 1201) 190.
The trial Court found that the prosecution had proved the commission of the offences above and that the appellant was one of those who committed the offences. In this appeal, there is hardly any challenge to the finding of the trial Court that the offences had been committed. The contest is on the finding of the trial Court that the appellant was one of the culprits. In other words, the appellant is questioning his identification as one of the persons who committed the offences. In Ebenezer v. State (2020) 8 NWLR (Pt. 1727) 572, 594, it was held that whenever a Court is faced with identification evidence, it must ensure and be satisfied that the evidence proves beyond reasonable doubt that the accused person before the Court was the person who actually committed the offence with which he is charged. It was further held that it was for this important reason that there ought not to be a doubtful identification.
The trial Court relied on the evidence of PW1, the victim of the offences of kidnapping and armed robbery as well as the extra-judicial statement of the appellant to hold that the appellant was involved in the offences. Questions relating to primary findings of fact are ordinarily exclusively within the domain of the Court of trial. This is because it is that Court which has the opportunity of observing the witnesses give their oral evidence and determining their credibility from their demeanour and behavior before it. The Court of appeal which is not in the same advantageous position as the trial Court cannot set aside the judgment of the Court of trial merely on grounds that it would have, if it was considering the matter, come to a different conclusion. Thus so long as there was evidence from which the learned trial judge could have come to the conclusion to which he did, the verdict cannot be disturbed. However, it is well settled that where the record discloses that the finding of the trial Court cannot be supported on the evidence, such finding will be disregarded and the appellate Court can interfere by setting aside the finding. See Ikem v. State (1985) 4 SC (Pt. 2) 30, 35 and State v. Oray (2020) 1 NWLR (Pt. 1722) 130, 151.
One of the complaints of the appellant is that the PW1 was released from captivity on 13th May, 2011 and she did not make a statement until 25th May, 2011. Again, it was complained that the appellant was arrested on 13th May, 2011 and his statement was recorded on 19th May, 2011. On this account, appellant’s counsel contended that PW1 waited for 12 days after her release and 6 days after the appellant’s statement to write her statement in order to implicate the appellant. It is my view that the time the appellant and the PW1 made their statements to the police does not by itself cast doubt on the case of the prosecution. This is because the manner in which a case is investigated including the sequence of taking statements is within the discretion of the investigating authority and the Court will hardly interfere in the same. In the case of Ajayi v. State (2013) 9 NWLR (Pt. 1360) 589, 605, the Supreme Court held that there is no law which stipulates the order in which investigations are to be carried out and that criminal investigations are carried out by the Police based on the information available to them; the investigator uses his discretion to determine how to go about his work. This statement applies to the SSS that investigated this matter.
The contention that the PW1 waited for 12 days to write her statement in order to implicate the appellant is speculative and I therefore reject it.
The PW1 testified that she saw the appellant when her blindfold was removed in the toilet where she was detained and that he was the one who chained her to another victim of kidnapping. It was the argument of appellant’s counsel that she prevaricated when she was asked if she told the SSS that it was appellant that chained her and she said that the SSS forgot to record the fact in her statement though she told them so. I will take the liberty of quoting some excerpts of the evidence of the PW2 hereunder:
“1st accused was the person that leg chained inside a toilet. I was unmasked as he leg chained me.”…page 78 of the record.
“On the 13/5/2011, when I was rescued taken to Ughelli Area Command of the Nigeria Police, I met the 1st accused. Immediately I saw him, I quickly recognized him. I later came to know his name as Innocent when the SSS men called his name.”…page 79.
In cross-examination, she stated as follows:
“I said in my statement to the SSS that 1st accused chained my legs but the SSS who recorded my statement may not have recorded it.”…page 81 of the record.
“At the moment I was kidnapped I did not recollect the faces of the kidnappers but in the toilet, I was kept I recongised the 1st accused as the person that chained me to another girl who was also kidnapped. I was blindfolded and taken to a room that was dark I did not recognize the 1st accused in the dark. I recognized the 1st accused when the 1st accused unfolded me at their den having told them that I was 5 months pregnant and hypertensive.”…page 82 of the record.
It must be stated that there is a difference between contradiction and discrepancy. In Gabriel v. State (1989) LPELR – 1298 (SC) at page 19, Nnaemeka-Agu, JSC, highlighted the difference thus:
“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. It is useful to bear in mind the fact that the word ‘contradict’ comes from the Latin words contra (opposite) and dicere (say). 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. I think the law also looks at the two different situations differently. If a witness gives oral evidence which contradicts his previous statement in writing, his evidence should be treated as unreliable. See Onubogu v. State (1974) 9 SC 1. On the other hand, minor discrepancies between a previous written statement and subsequent oral testimony expected do not destroy the credibility of the witness. Indeed, where such do not occur, it may lead to a suspicion that the witness had been tutored.”
See also Esangbedo v. State (1989) 7 SCNJ 10, 18, Attah v. State supra and Oludamilola v. State (2010) 8 NWLR (Pt. 1197) 565, 580.
The PW1 mentioned the appellant in her statement to the SSS but stopped short of saying that it was he who chained her to the other victim of the kidnapping as she stated in her oral testimony. This is a mere discrepancy which does not go to the root of her evidence. I do not see how she prevaricated in this respect. To prevaricate means to avoid giving a direct answer to a question in order to hide the truth. See Oxford Advanced Learner’s Dictionary 7th edition page 1149. She gave a direct answer to the questions that she was asked in cross-examination to the effect that she said in her statement that appellant chained her legs but that the SSS may not have recorded it. I think appellant’s counsel made a mountain out of a mole hill in this regard. I will not go along with him.
In considering evidence of identification of an accused person, the Court will take into consideration the following factors:
1. The circumstances in which the eye witness saw the accused person.
2. The length of time the witness saw the accused person.
3. The lighting condition at the crime scene
4. The opportunity of close observation of the accused person by the witness.
5. The description of the accused person given to the Police soon after the incident.
See Ikemson v. State (1989) 3 NWLR (Pt. 110) 455, Ndidi v. State (2007) 13 NWLR (Pt. 1052) 633 and Lawali v. State (2019) 4 NWLR (PT. 1663) 457.
PW1 had enough time to observe the appellant at close quarters while in custody and her evidence was that she did not recognize the appellant in the room that was dark but she recognized him in the toilet after her blindfold had been removed.
It was the position of appellant’s counsel that an identification parade ought to have been conducted. An identification parade is only necessary:
1. Where the victim did not know the accused person before and his first acquaintance with him is during the commission of the offence.
2. Where the victim was confronted by the offender for a very short time.
3. Where the victim due to time and circumstances, might not have had the full opportunity of observing the features of the accused.
See Afolalu v. State (2010) 16 NWLR (Pt. 1220) 584 and Wisdom v. State (2017) 4 NWLR (Pt. 1686) 446, 468.
However, an identification parade is unnecessary where there is certainty or no dispute about the identity of the perpetrator of the crime, where the victim recognizes the offender while the matter is still fresh in his mind as the person who committed the crime or where notwithstanding that the encounter was a fleeting one and the victim did not previously know the assailant, the victim had a struggle encounter with the accused and thereby an opportunity of a close encounter to observe the features of her attacker which she described unscathed. See Ikemson v. State supra, Ugwu v. State (2020) 15 NWLR (Pt.1746) I, 26 and Salau v. State (2019) 16 NWLR (Pt. 1699) 399, 411.
The PW1 had enough time to observe the appellant while in captivity but in an atmosphere of trauma. In Ewugba v. State (2018) 7 NWLR (Pt. 1618) 262, 288 Eko, JSC, opined as follows:
“To my mind when a person is traumatized e.g. attacked by armed robbers or raped, the whole episode remains in the mind of the victim for life.
He or she remembers faces vividly, despite trauma which usually sets in after the act. …such a victim would never forget the face of her assailants.”
It is necessary at this stage to set out again the evidence of the PW1 at page 79 of the record where she stated thus:
“On 13/5/2011, when I was rescued taken to Ughelli Area Command of the Nigeria police, I met the 1st accused. Immediately I saw him, I quickly recognized him.”
In cross-examination at page 82 of the record, she stated that:
“It was on the same day I was rescued I noticed the 1st accused for the second time…”
The above is evidence of spontaneous recognition of the appellant by the victim of the crimes. She was not cross-examined or successfully cross-examined on the above evidence and so it must be taken as true.
In the case of Ikemson v. State supra page 43 Oputa, JSC, stated as follows:
“Also immediately the 1st appellant was brought in, after his arrest, PW1 quickly, spontaneously identified him as one of those who robbed him and PW2. This spontaneous identification of the 1st appellant will certainly carry more weight than the commonplace ritual of an identification parade which can be teleguided.”
See also Bello v. State (2018) LPELR – 44662 (CA).
In the light of what I have said so far, it is my view that it was not necessary to conduct an identification parade in the circumstances of this matter. The identification evidence proffered by prosecution was solid.
Contrary to the submission of appellant’s counsel, the SSS were not obliged to draw the attention of the appellant to the statement of PW1. To hold otherwise will amount to taking away the discretion of investigatory agencies in the matter of investigation of crimes. The only instance that I am aware that an extra-judicial statement of a person ought to be brought to the attention of a suspect during investigation is where another suspect has made a statement that is confessional and which incriminates the suspect, and the same is intended to be used against him at the trial. This is to afford him the opportunity of adopting the statement or rejecting it. Where this is not done, the statement may not be used against him. See Section 29 (4) of the Evidence Act. This is not the situation in the instant matter.
Appellant’s counsel submitted that the PW1 on being released did not give a description of the appellant. It was the evidence of the said witness, which I have already quoted, that when she was rescued, she was taken to the Ughelli Area Command of the Police where she saw the appellant and that immediately she saw him, she quickly recognized him. The implication is that even before she had the opportunity of describing the appellant to any security agency, she encountered the appellant and spontaneously recognized him. The argument of the appellant’s counsel therefore comes to nothing.
As regards the tendering of call log, the prosecution is not required to call all the witnesses and tender all the documentary evidence in the world before it can prove its case; once it calls sufficient evidence to prove all the ingredients of the offence beyond all reasonable doubt, that is enough and where the defence perceives that a particular evidence is important, it is within its right to call such evidence even if it requires using the facility of subpoena to secure the production of such evidence.
It was the submission of appellant’s counsel that there was no evidence that the appellant demanded money with menaces or that he was among the three men who robbed the PW1 of her car. I think that appellant’s counsel is not right. The evidence of the PW1 shows that the appellant was a part of the gang that kidnapped the PW1 and detained her unlawfully in a place that she could not access the Court for her release nor could anybody access her who was entitled to have access to her. He had a common intention to prosecute an unlawful purpose, to wit: kidnapping of the PW1 and the offences of armed robbery and demanding with menaces were probable consequences of the prosecution of such purpose. He needed not be the one who robbed the appellant or made the demand for ransom with threats of killing the PW1 and using her body parts for ritual purposes before he is found culpable of the offences. Whoever physically did those things was the hand by which the appellant and others committed the acts. See Section 8 of the Criminal Code Law of Delta State and Ubierho v. State (2005) 5 NWLR (Pt. 919) 644.
This takes me to the extra-judicial statement of the appellant. It was tendered after trial-within-trial as Exhibit B. Let me quickly say that the trial-within-trial was necessitated by the objection of appellant’s counsel that the statement was not made voluntarily by the appellant. The implication is that he signed or thumb-impressed the statement but involuntarily. It is therefore surprising that in his evidence-in-chief the appellant testified that he did not sign the statement. Wonders, as it is said, will never end. I shall take the liberty of quoting extensively from the statement though I have read the whole of it in order to satisfy the law regarding the extra-judicial statement of an accused person, to wit: that in considering the statement of an accused person, the whole of the account given by him of the transaction must be taken together and his admission of a fact disadvantageous to himself shall not be received without receiving at the same time his contemporaneous assertion of fact favourable to him. See Olamolu v. State (2013) 2 NWLR (Pt. 1339) 580, 607.
In the statement, the appellant stated as follows:
“Sometime in April 2011 at about 1500 hrs at Kingsland Hotel, Afisere Ughelli North LGA, Delta State, where I was relaxing and taking a bottle of beer, I received a call from a friend of mine, one Kelvin. He told me he was coming to the hotel to see me after I had told him where I was. He later arrived in the company of one other person who I later came to know as Ejiro by name. Within thirty minutes, two other persons who I later came to know as Bright and Festus came in and joined us. That was when Ejiro started talking and introduced the plan to kidnap the wife of his boss. From the way he talked they had already conceived the idea and were co-opting others into the plot… We all agreed to be part of the plan and fixed the operation after the election. On the 4th May, 2011, I received a call from Kelvin when I was in Kokori, Ethiope East LGA where he told me that Ejiro has informed him that the time has come for the execution of the plan. He demanded that I come down to Ughelli as others are waiting. On the 7th May I returned to Ughelli where I met Kelvin who told me that the plan had been concluded and he is coordinating the operation. He mentioned all the persons involved, which includes: Bright, Festus, James, Tony, himself and myself… but I told Kelvin that I will not follow in the operation… the following day 8th May I got a call from Kelvin that they have succeeded in kidnapping the wife of Sheriff. But because I did not follow in the execution, he refused to disclose further what is happening, and told me the adage that, “that he who is sleeping does not partake in the meal of a feast.” After then Kelvin stopped picking my calls, and I have to resort to calling Festus who told me the negotiation was ongoing without revealing more. After a series of calls to Festus it became clear to me that they were not ready to accommodate me in the sharing of the ransom, so I stopped calling them….so on 13th of May, 2011 I was arrested by the police from area command Ughelli and was detained briefly before I was handed over to the SSS same day. I was taken to the Warri office of the SSS before I was transferred to their Asaba office on 14/5/2011 where I chose to make this statement.”
In the additional statement still recorded on Exhibit B, the appellant stated:
“In the course of masterminding, planning and execution of the kidnap of the victim, TOBORE OBOROVWORI FRIDAY UGBOKE was not seen by me…”
In yet another additional statement recorded on Exhibit B, the appellant stated:
“That kelvin OGHENEMANO ISAIAH called me that he was coming to Kingsland Hotels to see me. He actually came in the company of EJIRO OMORERE, Festus… Bright… Later Tames… and tony… came and joined us in the hotel room and the plan was masterminded.”
It is clear that the appellant was part of the masterminding of the plan to kidnap the PW1. In the first additional statement, he gave himself out as a mastermind, planner and executor of the kidnap. The word “mastermind” means “a person who supplies the direction or creative intelligence for a project.” The synonyms for the word includes contrive, engineer, frame and machinate. See Merriem Webster dictionary online. In the Oxford Advanced Learner’s Dictionary, 7th edition, the word is defined as “to plan and direct a complicated project or activity.”
So by his very words in Exhibit B, the appellant showed himself as the mastermind or the engineer of the kidnap. Section 7 (d) of the Criminal Code Law provides that;
“When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say –
(d) Any person who counsels or procures any other person to commit the offence…
In the fourth case, he may be charged either with himself committing the offence or with counseling or procuring its commission.”
Being a mastermind of the crimes, going by Exhibit B, the appellant counselled the commission of the offences and could rightly be charged and convicted on his confessional statement alone for the same. See Ude v. State (2012) LPELR – 14193 (CA). It is immaterial that he did not go for the operation by which the PW1 was snatched and taken away or that his co-travellers shut him out of the expected ransom.
Exhibit B therefore was confessional and the trial Court was right to treat it as such. The evidence of the PW1 corroborated the confession.
The PW2, the husband of the PW1, gave evidence of the demand for N50 Million as ransom for the release of the PW1 with a threat of killing the PW1 if the demand was not met. There was absolutely no need to call the Pastor of the PW1 to whom the first demand was made. This is because count 111 mentions the PW2 as the victim of that offence and not the Pastor. His evidence would have been irrelevant.
Counsel for the appellant contended that he (the appellant) made a statement at the Ughelli Area Command of the Police. But the appellant testified that he was not told that he kidnapped anybody at that station. Going by his statement, how could he have been asked to make a statement or how could he have made a statement at that station if he was not accused of kidnapping there? In Exhibit B, he stated that he was detained briefly at the station before he was handed over to the SSS on the same day and was transferred to the Asaba office of the SSS where he chose to make Exhibit B. There is no mention or whiff of his making a statement at the Ughelli Area Command of the Police. So his oral evidence as to making a statement at the Ughelli Area Command of the Police cannot be true.
In respect of conspiracy, it is an agreement between two or more persons to carry out an unlawful act. The offence is established once the prosecution adduces credible evidence, which is not debunked, to show criminal design and interest. See Ushie v. State (2018) 11 NWLR (Pt. 1629) 139. It is clear from Exhibit B that the appellant conspired with others to kidnap the PW1. His confession is corroborated by the evidence of PW1 and PW2. The trial Court was therefore right in convicting him of the offence of conspiracy.
I agree with counsel for the appellant that the proper order in a judgment where there is a count of conspiracy and a count of substantive offence is to first consider the substantive offence before proceeding to the count of conspiracy. However, the failure of the trial Court in this instance to follow that order has not been shown to have occasioned a miscarriage of justice. The complaint of appellant’s counsel is therefore of no moment.
There is therefore no reason for me to interfere with the finding of the trial Court since evidence on record justifies the same. In the light of what I have said thus far, I enter an affirmative answer to the lone issue for determination and resolve it against the appellant.
On the whole, see no merit in the appeal. It therefore fails and I dismiss the same, and affirm the decision of the trial Court.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have read in advance, the judgment of my learned brother, JOSEPH EYO EKANEM, JCA. I agree with his reasoning and conclusion that the appeal lacks merit. I too dismiss the appeal.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have read the draft judgment of my lord, JOSEPH EYO EKANEM, JCA just delivered before now, and I agree with the reasoning and conclusion therein and wish to only state in addition that:
An identification parade is an event organized to bring out suspects for the victim of crime to identify the person(s) who participated in the alleged crime. It is not in every incident that an identification parade is necessary.
In OSARO NOMAYO v STATE (2018) LPELR – 44729 (SC), SANUSI JSC held that:
“Again in this case there was before the trial Court, a confessional statement of the appellant admitting the offence.
By such confessional statement he himself confessed that he was at the scene the robbery was committed on the PW1. The evidence adduced and by clear identification of appellant, in my View, does not require any identification parade to be further conducted by the respondent.”
Also in OLATUNDE v STATE (2018) LPELR – 46797 (CA), the Court held that:
“It is not every case that an identification parade of a suspect is necessary. It is not a sine qua non to conviction. Where the identity of an accused is not in doubt as in the present case, there will be no need to embark on an identification parade. See THOMAS V STATE (2017) 9NWLR (PT. 1570) 230 FATAI V STATE (2013) 16NWLR (PT 1361) 1.”
Therefore, identification parade is only necessary whenever there is doubt as to the ability of a victim to recognize the suspect who carried out or participated in carrying out the crime alleged or where the identity of the suspect or accused person is in dispute. But where there is certainty or no dispute as to the identity of the perpetrator of a crime, there will be no need for an identification parade to further identify the offender.
In this appeal, the complainant on first face to face sighting of the Appellant at the Ughelli Area Command instantly recognized him, see page 79 of the record. It was a spontaneous recognition, and her evidence was not shaken on cross-examination.
For this and other reasons in the lead judgment, I join his Lordship to dismiss the appeal as it lacks merit and affirm the decision of the trial Court.
Appearances:
E. O. AFOLABI, ESQ For Appellant(s)
MRS. O. EYESIO, (Senior State Counsel, Ministry of Justice, Delta State) For Respondent(s)
