JOHN ONUABUCHI ISAAC v. THE STATE
(2018)LCN/12261(CA)
In The Court of Appeal of Nigeria
On Friday, the 7th day of December, 2018
CA/OW/175/2016
RATIO
CRIMINAL LAW: OFFENCE OF KIDNAPPING
“The offence of kidnapping is complete when the victim is carried away against his wish. See R vs. CORT (2004) 4 All ER 137, per Ogunbiyi, J.S.C. However, in Section 3(a) of the Kidnapping and Hostage Taking Law No. 10 of 2009, Laws of Abia State, it was stipulated that “Any person who for purposes of payment of ransom kidnaps and takes another hostage is guilty of an offence and shall upon conviction be liable to death.’ The section clearly prescribes that the kidnapping and taking another hostage must have been actuated by the intention to ask for or for the purposes of payment of ransom. It did not provide nor did it intend that for the offence of kidnapping to be complete, the ransom must have been paid. It only prescribed manifestation of an intention by the abductor of demanding for or obtaining payment of ransom. What this postulates is that where the definition of kidnapping includes abduction for some specific purpose, the mensrea that the prosecution must prove in order to obtain a conviction must include that specific purpose.” PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.
DEFENCE: THE DEFENCE OF ALIBI
“The onus on the prosecution to prove the charge against the accused beyond reasonable doubt never shifts and there is no onus on the accused to prove the alibi beyond that of introducing the evidence of alibi – Egwumi v State (2013) 13 NWLR Part 1372 Page 525 at 548 Para E-H per Rhodes-Vivour JSC. As held in Ochemaje v State (2008) 15 NWLR Part 1109 Page 57 at 90 Para C-F per Niki Tobi JSC: “A defence of alibi to be worthy of investigation should be precise and specific in terms of the place that the accused was and the person or persons he was with and possibly what he was doing there at the material time… It is not the law that the Police should be involved in a wild goose chase for the whereabouts of an accused person at the time the crime was committed. That is not the function or role of the Police. The accused must give specific particulars of where he was at the material time to enable the Police move straight to that place to carry out the investigation required by law.'” PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.
EVIDENCE: WHERE THE EVIDENCE CONTRADICTS
“Two pieces of evidence contradict one another when they are by themselves inconsistent. A discrepancy may occur when a piece of evidence stops short of or contains a little more than, what the other evidence says or contains some differences in details. See Gabriel v. State 1989 5 NWLR pt.122 p. 460. When two or more persons are called as witnesses to say what they saw on a particular day there are bound to be discrepancies in their testimonies. The Court is only concerned with testimony on material facts and not on peripherals that have no bearing on the substance in issue.” PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.
EVIDENCE: WHEN A CONFESSION IS CHALLENGED
“When a confession is challenged on the ground that the accused never made it at all, that question is a matter to be decided at the conclusion of the case and the confession can properly be admitted when tendered by the prosecution. In such a case, a trial within trial is not called for. A trial within trial is called for only where the objection to the admission is that the confessional statement was not made voluntarily.” PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.
JUSTICES
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
Between
JOHN ONUABUCHI ISAAC Appellant(s)
AND
THE STATE Respondent(s)
THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment):
The Appellant was initially arraigned before the High Court of Abia State on the 31st January, 2011 on a three Count Charge via the Information dated the 30th August, 2010. In the Particulars of Offence of each Count, it was alleged that the Appellant and others then at large, on or about the 14th day of May, 2010 at Obekwe village in the Ukwa Judicial Division: (1) conspired among themselves to commit felony to wit Armed Robbery/Kidnapping contrary to Section 5(b) of the Robbery and Firearms (Special Provision) Act, Cap. 398 Laws of the Federation, 1990; (2) While armed with guns robbed one Mrs. Goodness Nwankwo of her goods and thereby committed Armed Robbery contrary to Section 1(2) of Robbery and Firearms (Special Provision) Act Cap. 398 Vol. XXII Laws of the Federation of Nigeria; and (3) Kidnapped one Mrs. Uchenna Nwogu contrary to Section 3(a) of the Prohibition of Kidnapping and Hostage Taking Law No. 10 of the Abia State Laws, 2009. The three Counts were read out to the Appellant on 31/1/2011 to which he respectively pleaded not guilty.
At the trial, five witnesses testified for the Prosecution while the Appellant was the only witness for the defence. However, on the 26th February, 2014, Counts 1 and 2 of the Charge were struck by the lower Court consequent upon the application made by the Prosecution. Thereafter, a fresh plea was taken by the accused. The remaining one Count Charge of Kidnapping one Mrs. Uchenna Nwogu contrary to Section 3(a) of the Prohibition of Kidnapping and Hostage Taking Law No. 10 of the Abia State Laws, 2009 was then read over to the Appellant and he pleaded not guilty thereto. After the plea, no further evidence was introduced by the Prosecution and they proceeded to address the Court. At the conclusion, the trial Court, on the 14th May, 2015 delivered its judgment and found that:
“PW1, Uchenna Nwogu had indeed been kidnapped for the purposes of ransom which the accused person and the aforesaid people with him had asked her about and which was to the tune of N4,000.000.00 (Four Million Naira) which had supposedly been paid to her husband. The PW1 had been taken in such a manner that people who ordinarily ought to know her whereabouts were denied such knowledge and thisled to the search party for her by her husband, the PW2 herein, and the youths of their village. It held that the Prosecution has proved its case beyond reasonable doubt and then found the accused person guilty of having kidnapped Uchenna Nwogu on the 14th May, 2010 at Obokwe Village in Ukwu Judicial Division of Abia State. He is sentenced to death by hanging on the neck until he be dead.”
The Appellant was distraught at the judgment of the lower Court that he filed his Notice of Appeal on the 10th July, 2014 which he anchored on ten grounds of appeal. The Grounds of Appeal shorn of their Particulars of Errors read thus:
GROUND ONE- ERROR IN LAW
The learned trial Judge erred in law when he proceeded to convict the Appellant on defective Information and this occasioned a miscarriage of Justice.
GROUND TWO – ERROR IN LAW
The Learned Trial Judge erred in law when he relied on contradicting and/or conflicting evidence in convicting the Appellant.
GROUND THREE – ERROR IN LAW
The Learned Trial Judge erred in law when he refused to apply the principle in the case of ALH B. JAWANDO AND ANOR. vs. MADAM FALILAT BAKARE to the evidence of the Prosecution witnesses and this occasioned a miscarriage of justice.
GROUND FOUR – ERROR IN LAW
The Learned Trial Judge erred in law when he convicted the Appellant on a charge of kidnapping and this occasioned a miscarriage of justice.
GROUND FIVE – ERROR IN LAW
The Learned Trial Judge erred in law when he did not conduct Trial within Trial to ascertain the voluntariness of Exhibit A& B.
GROUND SIX – ERROR IN LAW
The Learned Trial Judge erred in law when he placed an unusual burden in the Appellant and this occasioned a miscarriage of justice.
GROUND SEVEN – ERROR IN LAW
The Learned Trial Judge misdirected himself when he held as follows:
“Further, the Accused person was duly identified, recognized and fixed at the scene of the commission of the crime … as no reasonable doubt is created in the mind of the Court for the benefit of the Accused if the police failed and/or neglected to investigate the said claim of alibi put up by the Accused.”
And this occasioned a gross miscarriage of justice.
GROUND EIGHT
The Trial Court misdirected itself when it proceeded to convict the Appellant even when it held in its judgment as follows:
“I find that the evidence of the identification of the Accused person was spontaneous and natural?.all the witnesses before the Court confirm that PW1, PW2, PW3 and PW4 and the accused person knew one another very well before the occurrence of the said incident.”
And this occasioned a miscarriage of justice.
GROUND NINE – ERROR IN LAW
The Learned Trial Judge erred in law when he conducted the trial in a language that is not the language of the Court and in negation of the principles in ALIYU GWONTO vs. THE STATE
GROUND TEN
The judgment of the lower Court is unreasonable, unwarranted and cannot be sustained having regards to the evidence.
The record of appeal herein was transmitted to this Court on the 14th July, 2016 out of time but it was regularised on the 31st May, 2017 when it was deemed as having been duly compiled and transmitted on that day. The Appellant’s Brief of Argument which was settled by his learned Counsel, S. A. Somiari, Esq., was filed on the 4th July, 2017. Seven issues were excogitated therein for determination in this appeal thus:
1. Was the learned trial Judge right when he convicted the Appellant on defective Charge/Information?
2. Was it proper for the learned trial Judge to Rely on contradicting and/or conflicting evidence in convicting the Appellant?
3. Are the available facts and evidence before the lower Court sufficient in law to sustain the conviction of the Appellant?
4. Was the learned trial Judge correct when he failed to conduct a trial within trial to ascertain the voluntariness of Exhibits A and B?
5. Was the learned trial Judge correct to place an unusual burden on the Appellant?
6. Was the learned trial Judge correct in ignoring the failure of the Police to properly investigate alibi put up by the Appellant?
7. Whether the trial of the Appellant which was partly conducted in a language that is not the language of the Court proper?
The Respondent’s Brief of Argument was filed on 4/10/18 but it was deemed as properly filed and served on 10/10/2018. Three issues were distilled by the Respondent as follows:
(1) Whether in the light of the evidence adduced in this case and the procedure adopted by the trial High Court, the Appellant could be said to have been tried and convicted on a defective Charge or Information.
(2) Whether in the light of the evidence adduced in this case, especially the extra judicial statements made to the Police by the Appellant, there is any alibi raised by the Appellant that should necessitate investigations by the Police and if in the affirmative, whether in the circumstances there was any need to investigate such alibi?
(3) Whether the Prosecution has proved the sole Charge of Kidnapping against the Appellant beyond reasonable doubt to justify his conviction and sentence on the Charge by the trial Court.?
In respect of issue No. 1, it was argued by the Appellant?s Counsel, S. A. Somiari, Esq., that by the provisions of Section 333 of the Criminal Procedure Law of Abia State, no other charge shall be joined with a charge punishable with death and not more than one charge punishable with death shall be charged in the same Information. In the Information filed on 22/9/2010 other charges were joined with the charge of Kidnapping which is punishable with death in Abia State. He stated that armed robbery and kidnapping are capital offences which shall not be joined together by the said section. He referred to the case of Abacha vs. The State (2002) FWLR Part 118 page 1224 where it was held that the trial of an accused person on a defective Charge lacks proper foundation and remains irregular. He stressed that the subsequent amendment of the charge on 26/2/2014 by severance of Counts 1 and 2 of the charge in the Information did not cure the fundamental defect as the original charge was in itself defective and incompetent. Therefore, the entire trial of the Appellant which was conducted on a defective, incompetent, and/or irregular charge is null and void. He urged this Court to resolve issue 1 in favour of the Appellant.
On issue No. 2, learned Counsel submitted that where the evidence of two or more witnesses is contradictory or conflicting, such evidence ought to be disregarded by the Court. He relied on Onibaniyi vs. The State (1972) 8-9 SC (Reprint) 97 and Godwin I. Usen vs. State (2012) LPELR-20063 (CA) and stated that in such circumstances, the accused would be entitled to an acquittal order. He highlighted the material contradictions in the testimonies of P.W.1, P.W.2 and P.W.4 as to the number of the persons who attacked them, whether any demand was made for their handsets/phones, the kind of guns the Appellant had in his possession at the material time, at what point did the Appellant shoot into the air, whether P.W.1 was blind folded with her blouse or she was only tied to a tree without being blindfolded, whether P.W.1 ever mentioned of being tied up to a tree and/or bush, the admission by P.W.1 of knowing and being well known to the Appellant and the question she claimed was asked her, if she is the wife of one Ebere.
He pointed out too that there was conflict as to the colour of the apparel worn by the Appellant at the material time, whether it was white, pink or yellow and that all these cast a huge doubt on his identity. He submitted that it is a clear case of mistaken identity and the doubt ought to be resolved in favour of the Appellant. He stated that the remark of the Court below that the identification of the Appellant by the Prosecution witnesses was spontaneous and natural that it leaves no doubt in the mind of the Court, is unsupported by any available evidence before the Court.
He further pointed out that the Appellant was not even in Obokwe Asa at the alleged time of the incident as he went to Horseman Hospital in Aba for X-ray and treatment of his leg which he argued was neither investigated nor contradicted. He stated that no benefit of the doubt was given to the Appellant as required by law rather the trial Court insisted that the Appellant must mention the names of Obokwe members who were present when he was apprehended by P.W.2. He cited the cases of Archibong vs. State All FWLR Part 323 page 1747 and Sunday Ndidi vs. State (2007) 5 SC 175 and submitted that whenever the case against the accused person depends on wholly or substantially on the correctness of the identification of the accused which the defence alleges to be mistaken, the Court must closely examine and receive the evidence with caution before convicting on the said evidence. He then urged that this issue be resolved in favour of the Appellant.
With regard to issue No. 3, learned Counsel strongly asserted that it was wrong of the lower Court to have convicted the Appellant for kidnapping because going by the ingredients of the offence of kidnapping, there is no evidence before the lower Court that any form of ransom was ever demanded and/or paid with respect to P.W.1, and that the allegation of P.W.1 that she was asked if her husband is ‘Ebere’ the Local Government Chairman, does not suffice as a demand for ransom. Therefore, the Respondent failed to prove an essential element of the offence which is fatal to the case. He further contended that the story presented by the Prosecution is fraught with doubts and then queried
(a) If the Appellant and P.W.1-P.W.4 knew themselves very well as claimed, why would the Appellant and his alleged cohorts be asking the P.W.1 if she is the wife of Ebere, the Local Government Chairman, and
(b) Why would these said people conduct such in abroad day light and without any attempt to cover their faces?
He then submitted that all doubts in criminal cases are to be resolved in favour of the Appellant.
On issue No. 4, whether the trial Court was correct when it failed to conduct a trial within trial to ascertain the involuntariness of Exhibits A and B, it was argued that by virtue of Section 29(2) and (5) of the Evidence Act, in a criminal proceeding where a statement was obtained from an accused person by torture, oppression, or any involuntary means, the proceeding must be suspended and a trial within trial should be conducted by the Court in order to determine the voluntariness or otherwise of the statement. He said that the Appellant alleged he was beaten in the course of making Exhibits A and B, therefore, it behoved the trial Court to order a trial within trial to determine the voluntariness of the statement. He placed reliance on the Supreme Court decision in Eke vs. State (2011) 3 NWLR Part 1235 page 589 where it was expressed that the test for admissibility of a confessional statement is its voluntariness.
Once the issue of voluntariness is raised as in the instant case, it must be resolved or settled one way or the other before its admission or otherwise. Where a confessional statement is objected to on the ground that it was not voluntary, that is to say, the accused person says he was forced or induced to make it, then a trial within trial must be held. He then argued that the failure of the lower Court to conduct a trial within trial as required by law and/or even make a finding on the weight to be attached thereto occasioned a miscarriage of justice. He then implored this Court to resolve this issue in favour of the Appellant.
In respect of issue No. 5, it was submitted that by the provisions of Section 132 of the Evidence Act, the burden of proving the guilt of an accused person rests squarely on the Prosecution. The burden of proving that any person has been guilty of a crime or wrongful act is on the person who asserts it, whether the commission of such act is or is not directly in issue. He stressed that P.W.5 failed to investigate the defence of alibi timeously raised by the Appellant. It was submitted that P.W.5 never investigated whether or not the Appellant went to Horseman Hospital Aba for treatment as he claimed or not. Learned Counsel then argued that the trial Court’s comments that the Appellant did not call either his mother or sister in law or other persons to testify on his behalf and that he did not tender hospital records is erroneous. He referred to the cases of Mohammed vs. State (2014) LPELR-22916(SC) and Okoh vs. State (2014) LPELR-22589(SC) and submitted that it is settled that it is not the duty of an accused person to prove his innocence as a matter of law as there is always a presumption of innocence in favour of an accused person. He then urged this Court to resolve the issue in favour of the Appellant.
In relation to issue No. 6 that is similar in con to issue No. 5, he submitted that once a defence of alibi is raised by an accused person, the prosecution is under an obligation to investigate the same. He referenced the cases of Danlami Ozaki vs. The State (1990) 1 NWLR Part 124 without the courtesy of citing the page; Aliyu vs. State (2007) All FWLR Part 388 page 1123 at 1141; The State vs. Fatai Azeez (2008) All FWLR Part 424 page 1423 at 1475 and the remarks of the trial Court that accused did not call his mother, his sister in law or the said Ndukaku to testify on his behalf nor was any hospital record tendered in evidence by him, and that the accused person was identified, recognised and fixed at the scene of the commission of the crime by the evidence of P.W.1, P.W.3 and P.W.4 and submitted that any plea of alibi would fail as no reasonable doubt is created in the mind of the Court for the benefit of the accused person if the Police had failed and/or neglected to investigate the claim of the alleged alibi put up by the accused person.
He stated that to a greater degree, the evidence of all the witnesses before the Court confirmed that P.W.1, P.W.2, P.W.3 and P.W.4 and the accused person knew one another very well before the occurrence of the said incident, and then reiterated his argument under issue 5 that if the Appellant and P.W.1-P.W.4 knew themselves very well why then would the Appellant and his alleged cohorts be asking P.W.1 if she is the wife of Ebere, the Local Government Chairman. He argued that it was wrong of the lower Court to have failed to properly consider the plea of alibi raised by the Appellant, absolved the Police of its duty to investigate the alibi raised and convicted the Appellant for failure to prove his innocence. He persuaded this Court to resolve the sixth issue in favour of the Appellant.
Under issue No. 7, he made reference to the case of Madu vs. State (1997) 1 NWLR Part 482 page 386; FRN vs. Mohammed (2014) LPELR-22465 (SC); Section 36 (6)(e) of the 1999 Constitution of the Federal Republic of Nigeria as amended and the case of Anayo vs. Zaria Native Authority (1963) 1 All NLR 169; State vs. Gwonto (1983) 1 SCNLR 142 and Uwaekweghinya vs. State (2005) All FWLR Part 259 page 1911 and submitted that every person who is charged with a criminal offence shall be entitled to have with or without payment the assistance of an interpreter if he cannot understand the language used at the trial of the offence. He contended that the Appellant was entitled to the use of an interpreter for purposes of the trial since from the records it is clear that he does not understand English Language, which is the language of the Court, well enough to communicate very well in it. He stated that there is nothing in the record showing that the proceedings were duly interpreted to the Appellant as required by law, particularly the evidence of P.W.2 and P.W.5 which were in English Language without any evidence of that being interpreted to the Appellant.
Also there is nothing showing that the entire proceedings conducted before the trial Court were interpreted to the Appellant and/or that he understood the processes of his trial, and nothing to show too who translated a part of the trial conducted in Igbo language to English language vice versa. He called upon this Court to hold that the failure of the lower Court to provide an interpreter for the Appellant occasioned a miscarriage of justice. He persuaded this Court to allow the appeal, set aside the conviction and sentence of the Appellant and discharge and acquit the Appellant.
Learned Counsel for the Respondent, Kalu K. Udeochu, Esq., submitted in respect of issue No. 1 projected in the Respondent?s Brief of Argument, that before the final addresses of the parties were adopted before the lower Court, the Prosecution orally applied for leave of the Court to amend the three Count Charge against the Appellant by deleting or withdrawing two of the three Counts, i.e. Counts 1 and 2 of the Charge in the Information which said application was not opposed by the Appellant?s Counsel and the same was granted by the trial High Court. As a result, the two Counts comprising the offences of Armed Robbery and Conspiracy were struck out, leaving only the Count of Kidnapping which amounted to an amendment of the Information or Charges against the Appellant. He relied on the cases of Nigeria Airforce vs. Obiosa (2003) FWLR Part 148 page 1224; Alonge Temitope vs. The State (2011) 6 NWLR Part 1243 page 289 at 303; Nigerian Airforce vs. James?s (2003) FWLR Part 143 page 257 and Bude vs. State (2013) 17 NWLR Part 1384 page 585 at 603 paragraph H, and strongly contended that virtually all defects or errors in an Information or Charge sheet may be amended at the Court of trial anytime before judgment.
He submitted that a Charge can be validly amended even after final addresses of Counsel. The amendment can be in the form of addition, deletion, alteration or even complete substitution and when any person is arraigned for trial on an imperfect or erroneous charge, the Court may permit or direct the framing of a new charge or add or otherwise alter the original charge.
He contended that none of the three Counts contained in the Information offended the rules guiding drafting of charges, although the lumping together of the three charges may be contrary to Section 333 of the Criminal Procedure Law of Abia State but it would at best amount to a mis-joinder of charges and an irregularity which may be cured by an amendment. The initial lumping did not render the Information incompetent as to vitiate the entire trial. It has been cured by the leave for amendment granted by the trial Court. The trial of the Appellant was based on the only surviving Count of Kidnapping. He submitted that the effect of the amendment which was not opposed or objected to by the Appellant’s Counsel is that the amendment dates back to the date the original Charge or Information was filed. He then called upon this Court to determine issue 1 in favour of the Respondent.
Regarding issue No. 2, learned Counsel for the Respondent further queried whether the Appellant raised the issue of alibi in his statements to the Police during the investigation of the crime by the Police? He referred to and quoted portions of the Appellant?s extra-judicial statement to the Police made on the 14th May, 2010 and 10/6/2010 tendered as Exhibits A, A1 and B respectively at pages 24, 25 and 26 of the record and submitted that there was really no form of alibi raised in any of the Appellant?s statements that should necessitate an investigation by the Police.
He explained that the Appellant’s statements made on 14/5/2010 and 10/6/2010 revealed only where the Appellant was when he was arrested and not where he was when the crime was being committed. He however admitted that on the day of the crime, he was present in his village and not where he lived in Emekuku, Owerri.
He said he was arrested when he was coming out of his brother’s Pool office, after many hours the victim, P.W.1, had fled from the bush where she was held captive by the kidnappers and informed her husband, P.W.2, and other people that the Appellant was amongst her abductors. He cited the cases of Adeboye vs. The State (2014) 12 NWLR Part 1422 page 613; Mohammed vs. State (2014) 12 NWLR P21 part 14 page 387 and Ibrahim vs. State (2014) 3 NWLR Part 1394 page 305 where the Supreme Court explained that alibi means when a person charged with an offence says he was not at the scene of the crime at the time the alleged offence was committed, that he was indeed somewhere else and therefore he was not the person who committed the offence.
He submitted that the guiding principle as expatiated by the Supreme Court, being that the accused must not only deny that he was at the scene of the crime but must, at the earliest opportunity give indication through his statement to the Police, of where he was and with whom he was at the time the crime was committed. It is the duty of the accused raising the defence of alibi to furnish particulars of the plea put up by him. He must furnish his whereabouts and those with him at the material time of the incident. It is then left for the Prosecution to disprove the same. It must be raised timeously at the earliest opportunity, preferably, at the interrogation by the Police. The onus is always on the accused person to provide the Police with information as to where he was when the crime was committed, with whom he was and what he was doing thereat. It is only when the above information is supplied by the accused that the burden shifts on the Prosecution to investigate the alibi.
Learned Counsel then argued that none of the laid down conditions governing the defence of alibi was met by the Appellant. He did not raise the plea anywhere in his statements to the Police. He did not furnish the name of the person or persons he was with and what they were doing at the time of the crime. He only admitted that on the date of the incident, he was in his village where the crime was committed. He then persuaded this Court to determine this aspect of issue 2 in favour of the Respondent as the Appellant did not raise any alibi at all for the Police to investigate.
Conversely, learned Counsel argued that if the Court is of the opinion that a plea of alibi was raised by the Appellant during the trial of the case at the High Court, there was no real need to investigate such alibi since the Prosecution witnesses firmly fixed the Appellant at the scene of the of the crime on the date of the crime. He relied on the decisions in Ochemaje vs. State (2008) 15 NWLR Part 1109 page 57; Aliyu vs. State (2013) LPELR-20748; Ndukwe vs. State (2009) 7 NWLR Part 1139 page 43 and Odidika vs. The State (1977) 2 SC 21 and submitted that where there is stronger evidence adduced by the Prosecution against the defence of alibi put forward by the accused, while the Prosecution has the duty to prove the guilt of the accused, the onus is, however, on the accused to call evidence on which he relies for his defence.
He submitted that during the trial of the case by the Court below, P.W1, P.W.3 and P.W.4 unequivocally identified the Appellant as one of the people who participated in the kidnapping of P.W.1. He stressed that the identification was direct and clear. They even stated that they had known the Appellant even before the commission of the crime and the Appellant admitted to knowing the witnesses. He stated that the identity of the Appellant was not in anyway in doubt and argued that having been sufficiently identified and fixed at the scene of the crime by P.W1, P.W.3 and P.W.4 and as having actively participated in the commission of the crime, the alleged alibi being raised by the Appellant became unintelligent and defeated.
It was not worthy of investigation. He referred to pages 111 and 112 of the record where the trial Court analysed the defence of alibi and rejected the same and then urged this Court to disregard and reject the plea of alibi made by the Appellant and resolve the issue in favour of the Respondent.
With regard to the Respondent’s issue No. 3 which Counsel pointed out subsumed the Appellant’s issues 1-5, it was argued that the items listed by the Appellant as constituting contradictory and conflicting statements are not contradictory in any material sense particularly as to the number of men who accosted them since it was the Appellant and other persons waylaid them. It is also immaterial who amongst them carried long gun or shot gun since there is evidence before the lower Court that the Appellant and the others at large carried guns and in fact the Appellant shot into the air while one Ibe shot P.W.3 in her leg.
He relied on the case of Chukwuemeka Ezeugo vs. The State (supra) where similar inconsistencies existed and it was held that those inconsistencies do not amount to contradictions in the Prosecution’s case, and even if the inconsistencies amounted to contradictions, they were not material to the ingredients of the offences the Appellant was charged with and did not cast any doubt on the Prosecution’s case against the Appellant. He referred to the seeming inconsistency at page 110 of the record in the testimonies of P.W.1 and P.W.4 and then urged this Court to ignore them as they are not material contradictions.
Then in respect of the contention that a trial within trial was not conducted to determine the voluntariness of the statements made by the Appellant to the Police, it was contended by the Respondent’s Counsel that the issue of a trial within trial can only arise when the document sought to be tendered is a confessional statement made extra judicially by an accused person to the Police during the investigation of the matter. It is unnecessary or inapplicable when any other specie of statement or document is sought to be tendered.
He vehemently argued that the Appellant’s statements tendered as Exhibits A and B are not confessional statements, they are total denial of commission of the crime by the Appellant, therefore, there was no need for the trial Court to conduct any trial within trial. He relied on the decisions in Eke v State (2011) 3 NWLR Part 1235. Page 589; Olamolu vs. The State (2013) 2 NWLR Part 1339 page 580 and State vs. Rabiu (2013) 8 NWLR Part 1357 page 585 in support and urged this Courts to hold that the need to conduct a trial within trial did not arise in the case as none of the Appellant’s statement was a confessional statement.
Also, on the contention that the trial of the Appellant was conducted partly in Igbo and partly in English languages and that the proceedings so conducted were not interpreted to the Appellant in the language he understood, learned Counsel referred to pages 31 and 35 of the record of appeal where the original three charges were read out to the Appellant in English language, the language of the Court and interpreted to the Appellant in the Igbo language he understood which the lower Court clearly recorded. He also referred to page 65 which contains the Appellant?s testimony in Igbo language. P.W.1, P.W.3 and P.W.4 also testified in Igbo language which the Appellant clearly understood. He confirmed that P.W.2 and P.W.5 testified in English and there was never a time the Appellant informed the Court, either by himself or through his Counsel that he did not understand English language.
He elected to take his oath and testify in Igbo language since it is the language he is very proficient in. He did not inform the Court that he did not understand or speak English language. He referenced the decisions in Ibrahim vs. State (supra) and Omokuwajo vs. FRN (2013) 9 NWLR Part 1359 page 300 where the Supreme Court opined that the facts that any accused does not understand the language of the Court in which his trial is being conducted is a fact well known to the accused person, and it is for him or his Counsel to take the initiative of bringing it to the notice of the Court at the earliest opportunity or as soon as the situation arises. If he does not claim the right at the appropriate time before any damage is done, he may not be able to have valid complaint afterwards on appeal. Also, where the record of the trial Court showed that the Appellant understands English language, and there was no record of complaint by the Appellant to the Court that he did not understand the charge read to him, then the argument by his Counsel to the contrary will be baseless.
He explained that the Appellant was present in Court and was represented by Counsel but at no time did he indicate that he could not understand the English language. He further stressed that during the cross-examination of the Appellant by the Prosecution Counsel, he was asked whether he was illiterate, to which he answered that he stopped schooling half way at Junior Secondary School 3 (JSS 3) in 1996. Learned Counsel then argued that a person who attended School up to JSS 3 in any institution in Nigeria cannot claim not to understand the English language which is the official language of teaching and learning in Nigerian Secondary School. He then submitted that the Appellant is not an illiterate and that he understood both Igbo language and English language which is the language of the Court, therefore, obviating the need for any translation from English Language to Igbo language.
On whether the Prosecution proved the charge of kidnapping against the Appellant beyond reasonable doubt, he referred to Section 3(a) of the Kidnapping and Hostage Taking Law No. 10 of 2009, Laws of Abia State which provides that any person who for purposes of payment or ransom kidnaps and takes another hostage is guilty of an offence and shall upon conviction be liable to death, and, reiterated that the ‘demand and/or payment of ransom’ is an essential ingredient in proving the offence of kidnapping. He referred to the testimony of P.W.1 where she narrated how she was accosted along the road alongside others, by the Appellant and some named other persons who forcefully seized her and marched her into the bush where the Appellant used her cloth to tie her to a tree and started questioning her about the sum of N4 Million which the Chairman of the Local Government allegedly paid to her husband, and argued that actual demand for ransom need not be made before the offence is fully constituted.
It is enough if the abduction is done with the purpose or intention to ask for ransom, i.e. an intention to ask for ransom suffices to ground the commission of the offence. He contended that the N4 million the Appellant asked P.W.1 about was the purpose the Appellant and others kidnapped P.W.1. It was further argued that the Appellant had the intention to ask for that money and would have gone ahead to do so if not for the information that got to them that P.W.1’s husband and the youths of the community had entered the bush in search of her which made the kidnappers to abandon her in the bush and absconded.
He submitted that the finding of the trial Court that charge of kidnapping against the Appellant was proved beyond reasonable doubt is supported by the evidence led by the Prosecution. The Prosecution was able to prove all the ingredients of the sole charge of kidnapping against the Appellant. He urged this Court to dismiss the appeal and affirm the judgment of the trial Court convicting the Appellant for the offence of kidnapping.
In the Appellant’s Reply Brief, it was reiterated that the use of the word ‘shall’ in the provisions of Section 333 of the Criminal Procedure Law of Abia State is clear and mandatory and as a defective originating process, it cannot activate the jurisdiction of the Court. He referred to Jummai Hassa vs. State (2012) LPELR-14358(CA); Okon vs. Ansa (2018) LPELR-44304 (CA); Musa Raimi Oyewole vs. Olukunmi Adedeji (2014) LPELR-22554 (CA); First Royal Micro Finance Bank Ltd vs. Essien (2013) LPELR-21854 (CA) and Mrs Opeyemi Omolara Bajulaiye vs. The State (2012) LPELR-7995(CA) and submitted that no amendment can cure an incompetent process of Court which is void ab initio. He further urged that the appeal be allowed.
The first issue phrased by the Appellant for determination in this appeal alleges that the Appellant was tried on a defective Charge/Information. In buttressing the point, he relied on the provisions of Section 333 of the Abia State Criminal Procedure Law which mandated that no other charge shall be joined with a charge punishable with death and not more than one charge punishable with death shall be charged in the same information. The Appellant is contending that the mis-joinder of charges or being arraigned on a defective charge rendered the entire proceeding conducted at the Court below invalid, null and void. The Section deals specifically with mis-joinder of charges but in no Section did the Law prescribe that such mis-joinder shall affect the substratum or render void the fabrics of the Charge. That notwithstanding, the record of this appeal portrayed that on the 26th February, 2014, the Prosecution applied for withdrawal of Counts 1 and 2 of the Charge in the Information. The application was not opposed by the Defence Counsel and, as such, the trial Court struck out Counts 1 and 2 of the Charge in the Information on the same 26/2/2014 then remaining the sole Count of Kidnapping on the Amended Charge. At the instance of the Prosecution Counsel, the amended Charge was read to the Appellant in English and interpreted to him in Igbo language which he appeared to have understood.
He then pleaded not guilty to the lone Charge of Kidnapping. It is my candid view that as far as the trial of the Appellant was concerned, the Appellant as at 26/2/2014 was being tried on a single Count Charge of Kidnapping. The decision of the lower Court granting the Prosecution leave to amend the Charge was not and has not been appealed against by the Appellant who never raised any objection to the amendment. The record clearly depicts that as at the 19th May, 2014, when the judgment of the Court below was delivered, the Appellant had only the Charge of Kidnapping contrary to Section 3(a) of the Prohibition of Kidnapping and Hostage Taking Law No. 10 of the Abia State Laws, 2009 against him.
He was convicted and sentenced on the Amended Charge and not on the original three Count Charge which definitely offended the provisions of Section 333 of the Abia State Criminal Procedure Laws, 2009 and which was amended with the leave of the lower Court. Certainly, the Appellant was neither convicted nor sentenced on any defective Charge because the defect in the previous 3 Count Charge had been altered and removed. The record further displayed that after the amendment both Counsel agreed that there was no need for further evidence by way of trial and agreed to proceed with the adoption of their written addresses.
It is clear in the record that there was no basis for the first issue projected by the Appellant. The Appellant did not file any appeal challenging the trial Court’s decision of 26/2/2014 amending the Charge. The Charge had been amended and the defect rectified before the conviction and sentence of the Appellant on 19/5/2014. In any case, the Supreme Court had in a plethora of cases opined that a Court can make an order for a defective charge to be amended. In Echeazu v. C.O.P (1974) 2 S.C. 46 or (1974) All N.L.R 234 Irikefe, J.S.C., articulated that Courts have the power to alter or add to any Charge at any time before judgment is given or verdict returned.
Where, at any stage of a trial, it appears to the Court that the Charge is defective, either in substance or form, the Court may make such order for the alteration of the Charge either by way of amendment of the Charge or by the substitution or addition of a new Charge as the Court thinks necessary to meet the circumstances of the case, unless, having regard to the merits of the case, the required amendments cannot be made without injustice, and all amendments made under the provisions of this subsection shall be made upon such terms as to the Court shall seem just. It had also been decided by the Supreme Court that the appropriate time to object to a formal defect in a charge is at the time the charge is being read. In Okewu vs. FRN (2012) LPELR-7834(SC), the Supreme Court per Ariwoola, J.S.C., held that:
“If there had been any defect or an ambiguity in the charge, the Appellant should not have responded with his plea when the charge was read. He should have objected at the reading of the charge. The appropriate time to complain or object to a charge as drawn up, is at the time it is being read and before the plea. It is trite law that where the accused does not understand the language used at the trial, it is his duty or his Counsel’s duty to notify the Court at the earliest opportunity, that he does not understand the language used at the trial. See: Madu vs. State (1997) 1 NWLR (Pt. 482) 386, 408-409. However, where the accused person speaks or understands the language of the proceedings and no objection is raised before he gives his plea, then it is presumed that the plea is valid and the proper required procedure was employed in the trial. No miscarriage of justice is occasioned by the way the charge was framed.”
Needless be labouring this issue as there seemed no basis whatsoever for the Appellant’s ground one and the ensuing issue No. 1. Accordingly issue 1 is resolved against the Appellant.
Issues 2, 3, 4, 5 and 6 are to be considered together as their summation would invariably lead to whether the lone charge of Kidnapping preferred against the Appellant was proved beyond reasonable doubt.
The issue read
2. Was it proper for the learned trial Judge to rely on the contradicting and/or conflicting evidence in convicting the Appellant?
3. Are the available facts and evidence before the lower Court sufficient in law to sustain the conviction of the Appellant?
4. Was the learned trial Judge correct when he failed to conduct a trial within trial to ascertain the voluntariness of Exhibits A and B?
5. Was the learned trial Judge correct to place an unusual burden on the Appellant?
6. Was the learned trial Judge correct in ignoring the failure of the Police to properly investigate the alibi put up by the Appellant
P.W.1, Mrs. Uchenna Nwogu asserted in her evidence that she knew the accused person very well. She knew him prior to the date of the incident. She gave an insight as to how she knew him through his own mother, a farmer and a herbalist, and through his sister in law. She gave a vivid account of her ordeal on the 14th May, 2010 at the hands of the Appellant and his cohorts, how she was kidnapped by the Appellant and his group and was later abandoned. Her evidence was not punctured during cross-examination as to the identity of the Appellant and the extent of his participation in the kidnapping saga. Isaac Chinedu Nwogu, the husband of P.W.1, testified as P.W.2.
He confirmed sighting the Appellant along the Pipeline without knowing he was one of the kidnappers until he met with his wife who mentioned the name of the Appellant as one of her abductors. P.W.3, Goodness Nwankwo, was one of the victims and eye witnesses to the commission of the crime. She was shot on her leg by one Ibe, which she showed to the Court.
The Court noted that on her right leg is a terrible scar where her leg is very clearly held together as it appeared to have been almost severed in two. She saw and properly recognised the Appellant at the scene of crime. P.W.4, one Gideon Chigbu Nwankwo, the husband of P.W.3, was in the company of P.W.1 and P.W.3 when they were accosted by the Appellant and his group. The Appellant and his men left with P.W.1 into the bush and he was left with his wife and her bleeding. His wife?s leg was almost shattered. P.W.1 and P.W.2 said that the Appellant wore a white jacket but P.W.4 said he was wore a pink clothes with a zip in front. He also recognised and identified the Appellant at the scene of crime.
The Police Officer who investigated the crime then testified as P.W.5.
The Appellant testified as D.W.1. He too knows P.W.1, P.W.2, P.W3 and P.W.4. P.W.2’s mother is from his village. They are well known to one another. D.W.1 said:
“She is well known to me. Hon. Isaac Nwogu is my relation whom I eat with from the same plate. It is baffling to me that I can be accused of kidnapping his wife who is my mother’s patient, and is very well known to me, and she also knows me, and for me to have been alleged to have ever done so in broad day light without covering my face.”
During his cross-examination he admitted making two statements to the Police, one at Aba Area Command on the 14th May, 2010, the other at SARS Police Station Aba. The two statements were admitted as Exhibits A and A1 respectively without any objection by the Defence Counsel.
On issue No. 2 alleging contradictory and inconsistent evidence of the Prosecution witnesses, the law is that it is not every contradiction, that would be sufficient to damnify a witness. The contradiction that would make a Court disbelieve a witness has to be on a material point in the case.
Contradiction is a statement, action or fact that contradicts another or itself. It is a statement which states the opposite of what is being contradicted. Thus for a statement to be contradictory, it should be a direct opposite of what was earlier stated or spoken, not when there is just a minor discrepancy, in say, details. 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. See Dagayya vs. State (2006) 7 NWLR Part 980 page 637. A material contradiction goes to the root of the evidence of a witness and it is fatal to the case of the party relying on it. As Nnaemeka-Agu, J.S.C., aptly put it in Ogoala vs. State (1991) 2 NWLR Part 175 page 509, contradiction between two pieces of evidence goes rather to the essentiality of something being or not being at the same time whereas minor discrepancies depend rather on the person’s astuteness and capacity for observing meticulous details.
Two pieces of evidence contradict one another when they are by themselves inconsistent. A discrepancy may occur when a piece of evidence stops short of or contains a little more than, what the other evidence says or contains some differences in details. See Gabriel v. State 1989 5 NWLR pt.122 p. 460. When two or more persons are called as witnesses to say what they saw on a particular day there are bound to be discrepancies in their testimonies. The Court is only concerned with testimony on material facts and not on peripherals that have no bearing on the substance in issue.
Also, in Adoba vs. State (2018) LPELR-SC.430/2014, Nweze, J.S.C., articulated that:
“Testimonies of witnesses can only be said to be contradictory when they give inconsistent accounts of the same event. That explains why the law takes the view that for contradictions in the testimonies of witnesses to vitiate a decision, they must be material and substantial, that is, such contradictions must be so material to the extent that they cast serious doubts on the case presented as a whole by the party on whose behalf the witnesses testify, or as to the reliability of such witnesses, Enahoro v Queen (1965) NMLR 265, endorsed in Ogun v Akinyelu (2004) 18 NWLR (Part 905) 362, 392; Emiator v State (1975) 9-10 SC 172; Ikemson v State (1989) 3 NWLR (Part 110) 455, 479; Afolalu v State [2009] 3 NWLR (Part. 1127) 160.
This is so because it would be miraculous to find two persons who witnessed an incident giving identical accounts of it when they are called upon to do so at a future date. If that were to happen, such accounts would be treated with suspicion, as it is likely that the witnesses compared notes. In effect, minor variations in testimonies seem to be badges of truth, Okoiziebu v State (2003) 11 NWLR (Part 831) 327,341; Nasiru v. State (1999) 6- 9 SC 153; Ikemson v State (supra). In any event, Courts have even taken the view that witnesses may not always speak of the same facts or events with equal and regimented accuracy, Ogun v Akinyelu (2004) 18 NWLR (Part 905) 362, 392. In all, for contradictions in the evidence of prosecution witnesses to affect a conviction, particularly, in a capital offence, they must raise doubts as to the guilt of the accused person, Nwosisi v State (1976) 6 SC 109; Ejigbadero v State [1978] 9- 10 SC 81; Kalu v State [1988] 4 NWLR (Part 90) 503; Igbi v State [2000] FWLR (Part 3) 358; [2000] 3 NWLR (Part 648) 169.” (Underlining mine)
In the accounts given by the witnesses in the instant appeal, there was no mistaken as to the identity of the Appellant, who led P.W.1 into the bush after she had been taken hostage; and the respective roles played by the Appellant and his cohorts on 14/5/2010. That P.W.1, P.W.2 on the one hand and P.W.4 on the other hand could not be consistent on the exact colour of shirt or cloth worn by the Appellant on that day sound ludicrous.
The fact that P.W.1 and P.W.2 said it was white while P.W.4 said it was pink did not, to my mind, affect the materiality of the commission of the offence by the Appellant. There was evidence that the Appellant and his cohorts were in possession of guns, and the Appellant fired a shot into the air. Then one Ibe shot P.W.3 on her leg and nearly severed the leg. There was proof that P.W.3 was in admission in Abia State University Teaching Hospital, Aba for the gun wounds. Also, whether P.W.1 was blindfolded with her blouse or whether she was only tied to a tree without being blindfolded does not detract from the fact of her having been taken hostage and seized by the Appellant for some time.
I must observe that the alleged inconsistencies highlighted by the Appellant’s Counsel at page 7 of the Appellant’s Brief of Argument do not change the fact that the Appellant was properly identified at the scene of the crime as one of those who abducted and held P.W.1 captive. They only go to the details of what were observed by each and every one of them. They were all consistent on seeing the Appellant and the individuals in his company at the time of perpetration of the offence.
Then on issue 3 as to whether the available facts and evidence before the lower Court are sufficient in law to sustain the conviction of the Appellant, the Appellant contended that there was no evidence that any form of ransom was ever demanded and/or paid with respect to P.W.1. The Supreme Court had in the case of Okashetu v. State (2016) LPELR-SC. 838/2014, opined that in order for the Prosecution to succeed under this count, 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. See R vs. CORT (2004) 4 All ER 137, per Ogunbiyi, J.S.C. However, in Section 3(a) of the Kidnapping and Hostage Taking Law No. 10 of 2009, Laws of Abia State, it was stipulated that “Any person who for purposes of payment of ransom kidnaps and takes another hostage is guilty of an offence and shall upon conviction be liable to death.’ The section clearly prescribes that the kidnapping and taking another hostage must have been actuated by the intention to ask for or for the purposes of payment of ransom. It did not provide nor did it intend that for the offence of kidnapping to be complete, the ransom must have been paid. It only prescribed manifestation of an intention by the abductor of demanding for or obtaining payment of ransom. What this postulates is that where the definition of kidnapping includes abduction for some specific purpose, the mensrea that the prosecution must prove in order to obtain a conviction must include that specific purpose.
Therefore, it is not enough to prove that the defendant intended to abduct the victim. In order to get a conviction, the prosecution must prove that the defendant abducted the victim with the specific intent of obtaining payment of ransom. There must an indication on the part of the accused person of trying to obtain an advantage or holding the victim for ransom. The Prosecution has to prove beyond reasonable doubt that the accused intended to detain the alleged victim in order to demand and obtain a sum of money for the alleged victim’s release. It does not matter whether the accused in fact demanded money or whether he/she succeeded in obtaining any money. There must be some overt act manifesting that intention.
In the instant appeal, P.W.1 narrated thus:
“I remember 14th May, 2010. On that day, I was going to the Ogwe market, (Ahia Ogwe) on a commercial motorcycle. When we got to the Umuiku Obokwe Road, which is a boundary, and there, a pool of water collects on the bad part of the road, and it was there that I saw two young men who are known to me and they are Ugochukwu, a.k.a. Black and Afornne. They covered the place where they were digging for the water to collect into, with palm fronds. They stopped us, and asked me to give them some money. I told them that I did not have some change and that I would do so on my return. We went on our way to the market. On my return from market, I came to the place where those who would convey me home were, and it was where I saw my brother-in-law, Gideon, who had come to collect his wife, Goodness. They asked me if I had finished, and I said ‘yes’. My brother-in-law Gideon carried his wife and I and as we returned, and came to that point where I had seen Afornne and Ugochukwu, I saw that they were both still there. The next thing we heard was a shout: ‘Hey! Stop there! Stop there’, and the accused person, John Isaac Onuabuchi, shot a gun into the air. When he shot the gun, we all laid down on the ground as they asked us. John had come out from a track road with Afornne, Ugochukwu, and others, viz Chijioke, Ikokwu, and Ibe a.k.a Opener.
The John I am talking about is the same person as the accused person in the dock. As we were lying down on the ground, Ibe a.k.a opener now shot Goodness who was pregnant on her leg. The accused person, John Isaac, who had a long gun, and also a shot gun, and the others with him whom I have named here, began to beat me up. They tore my clothes and used it to tie over my eyes, and led me into the bush. They took me around in the bush, and finally kept me by a tree, with my face tied, and they also tied me to the tree. While there they made phone calls to someone, asking him to bring a car that they had me now.
The said person who told them that the car was unable to start, whereupon they began to scold that person, arguing that it was the vehicle that they had just used that day for an operation. While they were arguing, one of their friends whom I do not know came there to them and informed them that my husband and the youths had come into the bush in search of me. Immediately, I heard a gun-shot but could not tell who had shot it, but it was shot within that place.
Then they asked me about the N4 Million that had been left for my husband at the Local Government when I responded that no sum of N4 Million had been left for my husband, one of them told me to shut up, and asked if I was not the wife of Ebere who had just finished his tenure, and I told him that I was not the one. It was at that point that they abandoned me after tying the blouse over my eyes very tightly. When I could no longer hear any noise again, I used my hands to untie the blouse covering my face and I looked at my body and saw that I had wounds all over my body. Then I ran from there, out of the bush. My blouse had been torn by the accused person and his group. They had also torn my brassiere and took it off me, but I did not see it. I however, took my torn blouse with me. When I ran out of the road, I saw my husband’s brother called land. He is a commercial motorcyclist when he saw my state, he removed his shirt and gave it to me to wear. Land is also known as Anayo. When he now took me home, people had already gathered in our compound as they had heard of the incident.
They asked me it I knew those who had perpetrated the act against me and I told them that I know them but asked about my husband. I was told that my husband and the Youths were inside the bush where they were looking for me, so I asked them to go and call them and inform them that I had returned. On their return, they also asked me if I knew any of the perpetrators and I told them I knew all of them.
I now named John Onwuabuchi Isaac; He was wearing a white jacket with a long gun and a short gun; Ibe a.k.a Opener, was holding a long gun with which he shot Goodness; Ikokwu had a shot gun; Chijioke had a short gun, and the rest also had shot guns, apart from John and Ibe who each had long guns. Immediately I mentioned John, my husband and the others with him shouted, and said that they had seen him coming out of the bush wearing white jacket, but that they did not know that was what he had done. They asked about Goodness, and I told them that she had been shot in the leg and had been taken to the hospital. The woman there began to shout, lamenting that she was pregnant and had only gone to the market to sell cassava STEMS. My husband and those with him became very angry and left for Obokwe, in search of the accused person, John Onuabuchi Isaac. I made a Statement to the Police in Aba at CPS (Ukwuegbu).”
It is clear in the evidence of P.W.1 that all the ingredients of the offence of kidnapping with the motive of obtaining payment of ransom were proved by the Prosecution. P.W.3 and P.W.4 corroborated P.W.1?s evidence of her being seized, unlawfully taken hostage of without her consent by the Appellant, and taken away without lawful excuse. The offence of kidnapping is complete when the victim is carried away against his wish. It is immaterial that the Appellant did not succeed in making calls for payment of ransom, having already asked P.W.1 about the alleged N4 million that was supposedly left for her husband at the Local Government.
I, therefore, have no hesitation in agreeing with the findings of the trial Court at page 112 of the record that “P.W.1, Uchenna Nwogu had indeed been kidnapped for the purposes of ransom which the accused person and the aforesaid people with him had asked her about and which was to the tune of N4 Million which had supposedly been paid to her husband”. The P.W.1 who testified that she had been tied to a tree in a bush using her clothes which were torn and used to tie her, had clearly been held hostage by the accused person and the aforesaid persons with him whom the P.W.1, P.W.3 and P.W.4 had testified that they had been armed with guns which had been shot sporadically by them. This issue is, therefore, resolved in favour of the Respondent.
Regarding issues 4 and 6 as to whether the trial Court ought to have conducted a trial within trial to ascertain the voluntariness of Exhibits A and B, the law is well settled that the appropriate point to raise the involuntariness of a confessional statement is when it is about to be tendered in evidence, especially where the accused person is represented by Counsel and it is assumed he ought to know what to do at each stage of the proceeding. So, where an issue arises as to whether a confession was made voluntarily, trial within a trial must be conducted to determine the admissibility of the confession before it is ever admitted in evidence. When a confession is challenged on the ground that the accused never made it at all, that question is a matter to be decided at the conclusion of the case and the confession can properly be admitted when tendered by the prosecution. In such a case, a trial within trial is not called for.
A trial within trial is called for only where the objection to the admission is that the confessional statement was not made voluntarily.
In the instant appeal, no confessional statement whatsoever was made by the Appellant, and his statements were tendered without any form of objection from the Appellant nor his Counsel. He did not make any confessional statements, his statements contain flat denials of the offence of kidnapping levelled against him. Therefore, it would have been imprudent, a mockery and purposeless had the trial Court conducted a trial within trial to determine a mirage. In fact that would have exposed the Court to ridicule.
Learned Counsel appears not to be very familiar or conversant with this aspect of our criminal procedural law as to when a trial within trial ought to be conducted. Consequently, this issue is hereby resolved against the Appellant.
Then, in relation to issues Nos. 5 and 6 which gave an inkling of a plea of alibi presumably raised by the Appellant, and the allegation of the Appellant that the Court below placed an unusual burden on him, it is necessary to note that in a criminal trial, there is generally no duty on the accused to prove his innocence. However, there may be circumstances in which some explanations are required from the accused person. Where the facts against him are strong, if he fails to offer such explanations, his failure will support an inference of guilt against him.
Furthermore, where the evidence adduced by the prosecution in a criminal case is tested, scrutinized and accepted by the trial Court and it conclusively points to the accused as the perpetrator of the crime charged, it is for the accused to rebut the presumption that he committed the crime and at least to cast a reasonable doubt on the prosecution’s case by preponderance of probabilities. See Igabele vs. State (2006) 6 NWLR Part 975 page 100.
A plea of alibi once proved, serves a complete exoneration of the accused/appellant from the commission of the crime alleged,” per Ogunbiyi, J.S.C., in Adebiyi vs. State (2016) LPELR-40008(SC). In Latin, alibi means “somewhere else”, that the accused was somewhere else at the time of commission of the crime. In the vivid words of His Lordship, Obaseki, J.S.C., in the case of Ozaki vs. The State (1990) 1 NWLR Part 124 page 92 at 109 paragraphs C-G invoked by Kekere-Ekun, J.S.C., in Silas Sule Mohammed vs. State (2014) 12 NWLR Part 1421 page 387 at 430 paragraphs B-H, alibi is defined as a defence where an accused person alleges that at the time when the offence with which he is charged was committed, he was elsewhere.
It is the law that notice of intention to raise it must be given. This is normally done at the first opportunity by a suspect in answer to a charge by the Police at the investigation stage to enable the truth or falsity of the allegation to be established by the Police.? The onus of establishing alibi is on the accused person since it is a matter within his personal knowledge. The defence of alibi would succeed if at the earliest opportunity such a defence is raised, with sufficient particulars to enable the Police investigate it. See Abubakar Mohammed vs. State (2015) 10 NWLR Part 1468 Page 496 at 524 Para A-C, per Rhodes-Vivour JSC. Also in Osuagwu v State (2013) 5 NWLR Part 1347 page 360 at 383 Para F-H per Rhodes-Vivour J.S.C., it was held that “After a suspect is arrested, Police investigation commences with the suspect.
He is asked under caution to write a statement. This is the earliest opportunity a suspect has to explain or raise the defence of Alibi. He must state in clear terms, the day time and address of where he was when the Police alleged that he committed the offence. The onus is not on the accused person to establish alibi to the satisfaction of the Court but for the prosecution to disprove it. “Once a defence of alibi has been promptly and properly put up, the burden is on the prosecution to investigate it and rebut such evidence in order to prove the case against the accused beyond reasonable doubt – Abubakar Mohammed v State (2015) 10 NWLR Part 1468 Page 496 at 524 Para A-C per Rhodes-Vivour JSC; The defence of alibi would, however crumble where there is stronger evidence against it, for example if the prosecution leads credible and accepted evidence which fixes the accused person at the scene of the crime at the material time. See Abubakar Mohammed v State Supra at 524 Para C per Rhodes-Vivour JSC; Osuagwu v State (2013) 5 NWLR Part 1347 Page 360 at 383 para H per Rhodes-Vivour JSC: The law is that where the evidence of the prosecution, positively, unequivocally and irresistibly points to the guilt of the Appellants, the defence of alibi becomes of no moment. See Sampson Ebenehi & Anor. vs. The State (2009) 6 NWLR Part 1138 Page 431 at 448 Para A per Ogbuagu JSC. Failure to check an alibi may cast doubt on the reliability of the case for the prosecution. Failure by the police to investigate and check the reliability of (the) alibi would raise reasonable doubt in the mind of the Tribunal and lead to the quashing of a conviction imposed in disregard of this requirement.
The onus on the prosecution to prove the charge against the accused beyond reasonable doubt never shifts and there is no onus on the accused to prove the alibi beyond that of introducing the evidence of alibi – Egwumi v State (2013) 13 NWLR Part 1372 Page 525 at 548 Para E-H per Rhodes-Vivour JSC. As held in Ochemaje v State (2008) 15 NWLR Part 1109 Page 57 at 90 Para C-F per Niki Tobi JSC: “A defence of alibi to be worthy of investigation should be precise and specific in terms of the place that the accused was and the person or persons he was with and possibly what he was doing there at the material time… It is not the law that the Police should be involved in a wild goose chase for the whereabouts of an accused person at the time the crime was committed. That is not the function or role of the Police. The accused must give specific particulars of where he was at the material time to enable the Police move straight to that place to carry out the investigation required by law.”
As also held by His Lordship at page 90 Para G, “investigation is not a necessity if the evidence unequivocally points to the guilt of the accused person, either in the evidence of the witnesses or under cross-examination by the evidence of the accused or his witnesses. ?To succeed in such a defence that may lead to an acquittal, the accused must support and substantiate the defence with unassailable credible evidence that is not riddled with holes? – Ochemaje v State Supra at 93 para H per Mukhtar JSC (as she then was).
It is instructive to note that the Appellant did not raise in his statement to the Police made on 14/5/2010 and 10/6/2010 respectively that he was in any particular place with any named human beings at the very time the crime was being perpetrated.
In his statement of 14/5/2010, he said that on 14/5/2010 when he was arrested, he was coming out from his brother Ndukaku or Lazarus Pools Office. He did not state where he was before he went to the Pool Office or how long he was there and the time he went there. It was only during the Appellant’s testimony before the trial Court that he mentioned for the first time that on the date in question he came in from Owerri and went to Horseman Hospital, Aba at No. 32 Okigwe Road, Aba to undergo an x-ray because of the injury he had on his leg. He did not state the time he came in from Owerri or the time he was at the Horseman Hospital.
P.W.5, who was the 2 I/C D5 SCID, SARS (Special Anti Robbery Squad) partly investigated the crime from the 9th June, 2010 when the case of kidnapping/armed robbery was transferred to his section alongside the accused person admitted during his cross-examination that the Appellant told him he was living in Owerri, but, my concern is how that translated into raising an alibi, i.e. that he was somewhere else when the crime he was being accused of was being committed. I must unequivocally state that the Appellant mentioning Owerri, Imo State as his place of residence is not the same as stating the exact place, the time and the individuals he was with, probably about 2 pm as stated by P.W.2 as the time of commission of the crime on the 14th May, 2010, when the Appellant was kidnapped on her way back from Ogwe Market at Obokwe village in Ukwa West Local Government Area of Abia State. Also, that he sells drugs for Dr. Winner is immaterial since he never mentioned to the Police at the earliest possible opportunity that he was with the said Dr. Winner whether at Akwakuma or Emekuku.
The Appellant’s Counsel completely missed the point and seemed oblivious of the correct position of the law on the plea of alibi. The material point is that on the 14th May, 2010, the Appellant was physically present within and around his Obokwe village where the kidnapping incident took place. In the Appellant’s oral evidence before the Court below, on that fateful day, he came to Aba from Owerri for x-ray. He stated for the first time during his testimony that he arrived the village at about past 4pm in the evening. In his cross-examination he said he left Aba on the 14th after 4pm and got to his village around 5 pm. These informations he deliberately omitted in his two statements made to the Police on the said 14/5/2010 and 10/6/2010 respectively. Since he did not furnish the particulars of all he had expressed during his oral testimony to the Police at the earliest opportunity he had, the Police had nothing to investigate to disprove any imagined or an afterthought defence of alibi belatedly raised by the Appellant.
It is interesting to note that the trial Court also took cognisance of the fact that the Appellant raised the issue of alibi during the cross-examination of P.W.5, the IPO, and held that there was no need for P.W.5 to have embarked on an investigation of any alibi since in Exhibit A, the accused person stated that he was arrested on the day of the said incident while in his village, Obokwe, so the accused had not claimed to have been in Emekuku, or Akwakuma, Owerri, Imo State on the date of the incident, which I wholly agree with. On the bogus fact that the Appellant had gone to Horseman Hospital on the said date and arrived his compound later in the evening, the trial Court found that in Exhibit A, the Appellant stated he had been in his village three weeks before that 14/5/2010.
I must observe that the remark by the trial Court that the Appellant did not call his mother, sister in-law, nor the said Ndukaku to testify on his behalf nor was any hospital record tendered in evidence by him, was misguided and ought not to have been made since it is clear in the evidence proffered before it that the Appellant never raised any plea of alibi at the time he made his statements in Exhibits A and B. That to my mind, did not occasion any miscarriage of justice. The fact is that the Appellant did not articulate all he stated during his oral testimony as to the Horseman Hospital, having arrived his village at about 5pm, or coming in from Owerri on that 14/5/2010, in his statements to the Police. The trial Court also rationalised its finding and reason for discarding the trumped up defence of alibi raised during oral evidence by the Appellant at page 112 of the record of Appeal by stating that: “the accused person was duly identified, recognised and fixed at the scene of the commission of the crime by the evidence of the P.W.1, P.W.3 and P.W.4 and so any presumed plea of alibi will fail, as no reasonable doubt is created in the mind of the Court for the benefit of the accused if the Police had failed and/or neglected to investigate the said claim of any alleged alibi put up by the accused person.”
It is well established that “Where the accused person gives conflicting stories as to his whereabouts at the material time under consideration, there is no duty to investigate the alibi. In such a case, no alibi is established. Also, the ipse dixit of the accused, i.e. that he was not present, is not enough. To raise the defence he must give particulars of his whereabouts at that particular time. Where the accused is however identified by eye witnesses, a straight case of credibility is involved. See Olaiya vs. State (2010) 3 NWLR Part 1181 page 423 at 435 paragraphs B-H per Mahmud Mohammed J.S.C., (as he then was); Silas Sule Mohammed vs. State (2014) 12 NWLR Part 1421 at page 387 at 430 paragraphs B-H, per Kekere-Ekun JSC. In the light of the above, I hereby resolve issues 5 and 6 against the Appellant.
On issue No. 7 which queried whether the trial of the Appellant that was partly conducted in a trial that is not the language of the Court was proper, it is interesting to note the answers given by the Appellant at page 71 of the record when asked whether he was literate, he said he stopped schooling half way. He stopped in JSS3 in 1996. The Supreme Court in Ezeigwe vs. Awudu (2008) 11 NWLR Part 1097 page 158, per Akintan, J.S.C., defined an illiterate as “a person who is unable to write or read or understand a particular document.”
Also, in Otitoju vs. Governor of Ondo State (1994) 4 NWLR Part 340 page 518, it was held that an illiterate person has been defined in the case of Ntiashagho vs. Amodu (1959) WRNLR 273 as “a person who is unable to read with understanding and to express his thoughts by writing, in the language used in the document made or prepared on his behalf,” per Kutigi, J.S.C., (as he then was). The Appellant had already answered that he stopped his academic studies at JSS3 i.e. Junior WAEC, meaning he did his primary school and entered Secondary School where he apparently sat for his Junior WASC Examination conducted by the West African Examination Council. Certainly, it was incongruous for the Appellant’s Counsel to have presented this as an issue and even proceeded to argue the same when the Appellant himself had already in his cross-examination furnished the trial Court with the level of educational background. In any case, there was no protest by the Appellant nor his Counsel throughout the trial that he did not understand the English language in which some of the proceedings were conducted without interpretation from Igbo language to English language vice versa. This issue is hereby resolved in favour of the Respondent.
In view of the reasons articulated above, I find no merit in this appeal. It is bereft of substance and I hereby dismiss the same. Accordingly, the judgment of the High Court of Abia State delivered on the 14th May, 2014 convicting the Appellant of having kidnapped Uchenna Nwogu on the 14th May, 2010 at Obokwe village in Ukwa, Abia State and sentencing him to death by hanging by the neck until he be dead, is hereby affirmed by this Court.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I agree.
ITA GEORGE MBABA, J.C.A.: I had the advantage of discussing and reading the lead judgment, just delivered by my Lord, ORJI-ABADUA, JCA and I agree with her reasoning and conclusion that the appeal lacks merit and should be dismissed.
I too dismiss the appeal and abide by the consequential orders in the lead Judgment.
Appearances:
S. A. Somiari, Esq.For Appellant(s)
Kalu K. Udeochu, Esq.For Respondent(s)
