NGOZI NWOKOCHA v. THE STATE
(2019)LCN/12635(CA)
In The Court of Appeal of Nigeria
On Friday, the 1st day of February, 2019
CA/J/3C/2018
RATIO
CRIMINAL LAW: WHAT IS CRIMINAL CONSPIRACY
“Now, on what is criminal conspiracy, Section 96 of the Penal Code (supra) is clear that it is an agreement of two or more persons to do or cause to be done an act that is illegal or though not illegal but by illegal means. YAKUBU V. STATE (SUPRA); KAYODE V. STATE (2012) 11 NWLR (PT. 1312) 523; TIMOH V. STATE (2012) 3 NWLR (PT. 1286) 144; ODUNAYO V. STATE (2014) 12 NWLR (PT. 1420) 1.” PER UCHECHUKWU ONYEMENAM, J.C.A.
EVIDENCE: CONFESSIONAL STATEMENT
“A confessional statement must of necessity be direct, positive, true and unequivocal of facts that satisfy the ingredients of the offence the accused person confesses to have committed. See: HARUNA V. A.G. FEDERATION (2012) 9 NWLR (PT. 1306) 419; EBENEZER V. THE STATE (2018) LPELR 43871 (CA); ADEKOYA V. STATE (2012) 9 NWLR (PT. 1306) 539;STATE V. ISAH (2012) 6 NWLR (PT. 1327); OLOWOYO V. STATE (2012) 17 NWLR (PT. 1329) 3446.” PER UCHECHUKWU ONYEMENAM, J.C.A.
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
Between
NGOZI NWOKOCHA
(alias Lilian Ngozi Nwoke nee Aniekwe) Appellant(s)
AND
THE STATE Respondent(s)
UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment):
The appeal against the Appellant’s conviction by the trial Court in charge No. BOHC/MG/CR/41/2016, delivered on the 13th of April, 2017, by the High Court of Borno State, was filed on 10th May, 2017.
The Appellant was convicted for the offences contrary to and punishable under Sections 97 (1) and 278 of the Penal Code Law of Borno State, 1994. She had been arraigned along with three other accused persons on the allegation of buying and selling of minors for immoral purpose and were charged accordingly. The Prosecution called a total number of 9 witnesses and tendered Exhibits A, B, C, D & D1, E & E1, F & F1 and G & G1 in proof of the charges against the Appellant. While the Appellant and the others in their defence testified on their own behalf and called five other witnesses. At the close of trial, she was convicted and sentenced to nine years imprisonment and fine. The Appellant dissatisfied with the referred decision of the trial Court, has now filed this appeal.
The case of the Appellant, a trained Nurse, is that, one Aisha Bukar, the 3rd Accused/Convict, was employed by her as a house-help with the assistance of the 4th Accused/Convict, Zara Haruna. That after 10 months of her employment, the Appellant noticed the 3rd Accused was pregnant. Upon intense persuasions the Appellant allowed the 3rd accused to remain in her employment until she gives birth. Upon her delivery her parents were alerted. The 3rd accused was subsequently diagnosed to be HIV and hepatitis “B” positive. The Appellant assisted 3rd accused/convict, in getting registered at the Hospital for treatment. That the said 3rd accused left her child with the Appellant who took care of both of them.
Furthermore, it was the case of the Appellant that on a certain day, the 4th accused/convict brought the 2nd accused/convict who complained of stomach pains and aches to her house. Upon examination she found she was in labour but was not due for delivery yet. She advised her to seek help at the Mamman Shuwa Hospital Maiduguri. With the assistance of the Appellant, she was delivered of the baby successfully. The Appellant assisted in settling her Hospital bills and when she returned to the Appellant’s home, 2nd accused/convict Kaltime informed the Appellant she had no use for the child and that the Appellant should take the baby and give her transport fare to move to Lagos, to which the Appellant said they should go to the Police to document what Kaltime was requesting. That as they were discussing, Policemen came in to the Appellant’s house. Subsequently she was arraigned and eventually convicted, which decision now led to this appeal.
The parties filed their respective briefs in accord with the rules of this Court whereupon the appeal was heard on 21st November, 2018. Learned counsel on both sides respectively adopted their briefs in urging the Court to allow and dismiss the appeal consequentially. For the Appellant, in the brief of argument settled by Mr. N. A. Dammo, the lone issue formulated from the four grounds of appeal filed is:
“Whether, in the circumstances of the evidence on record, the Lower Court was not wrong when it held that the Respondent has proved the guilt of the Appellant beyond reasonable doubt and thereby convicted the Appellant.”
The lone issue distilled from the four grounds of appeal filed was adopted by the Respondent?s counsel Mr. K. S. Lawan.
I too, will adopt the sole issue for the determination of this appeal.
SUBMISSIONS ON ISSUE
The Appellant’s counsel rehashed the charge against the Appellant punishable under Sections 278 of the Penal Code, Laws of Borno State, 1994. He referred to S. 96 of the same Law for the definition of criminal conspiracy. He submitted that for conspiracy to become an offence, it must have been done in furtherance of an illegal act or an act which is not illegal by illegal means. Referring further to Section 278, he reiterated the nature and burden of proof in criminal cases. He cited: YAKUBU V. STATE (2014) 8 NWLR (PT. 1408) 111; ANEKWE V. STATE (2014) 10 NWLR (PT. 1415) 353. JOSEPH V. STATE (2011) 16 NWLR (PT. 1273) 226; IGRI V. STATE (2012) 16 NWLR (PT. 1327) 522; BROWN V. STATE (2012) 3 NWLR (PT. 1287) 251.
On whether the Respondent had indeed proved the commission of the offences punishable under Sections 97 (1) and 278, beyond reasonable doubt, Mr. Dammo of counsel for the Appellant submitted that the trial Court was in grave error when it came to the conclusion that the prosecution proved the offence of criminal conspiracy beyond reasonable doubt. He referred to the findings of the trial Court at pages 64-65 of the record from line 20 thereof to line 1. For what the prosecution would prove to establish conspiracy, the learned counsel referred to: YAKUBU V. STATE (SUPRA) AT PP. 123-124 AND 137; KAYODE V. STATE (2012) 11 NWLR (PT. 1312) 523; TIMOH V. STATE (2012) 3 NWLR (PT. 1286) 144; ODUNAYO V. STATE (2014) 12 NWLR (PT. 1420) 1. He challenged the holding of the learned trial Judge that by Exhibits B, D and G, the offence of conspiracy was proved. He noted that the said Exhibits which are the alleged confessional statements of the Appellant and the 4th accused/convict in no way stated that the Appellant agreed to buying and selling of the minors for unlawful and immoral purpose. He contended that buying and selling of babies or minors are not in themselves an offence under those sections of the law. He referred to the provisions of Section 278 of the Penal Code Law (supra).
He argued that the law requires in this case, that both the actus reus and mens rea must be present for the offence to be committed. Further on, it was the learned counsel’s submission that, the prosecution having failed to establish the purpose of the buying and selling alleged which is an essential ingredient of the offence, the prosecution failed to discharge the burden of proving the offences under Sections 97 (1) and 278 of the Penal Code Law of Borno State, 1994. He urged the court to so hold.
Mr. Dammo, again contended that Exhibits D and D1 which the learned trial Judge held as the Appellant?s confessional statement cannot be relied upon in convicting her as the same did not agree on the ingredients of the offence charged. He cited:HARUNA V. A.G. FEDERATION (2012) 9 NWLR (PT. 1306) 419; ADEKOYA V. STATE (2012) 9NWLR (PT. 1306) 539; STATE V. ISAH (2012) 6 NWLR (PT. 1327) 613; OLOWOYO V. STATE (2012) 17 NWLR (PT. 1329) 3446. He noted that in Exhibits D and D1, the Appellant admitted to agreeing to take the child of the 2nd Accused/convict, and to giving money to her but that this admission is not enough to ground a conviction of the offence of criminal conspiracy punishable under Section 97 and the offence punishable under S. 278 of the Penal Code, Laws of Borno State, 1994. That the Exhibits having not positively and directly admitted the vital ingredients of the offence charged, he submitted that the same did not qualify as a confessional statement to be used to convict the Appellant. He therefore submitted that the learned trial Judge was in error when he was looking for corroborative evidence from outside of the Exhibits to support the findings he made that indeed the Appellant confessed to the commission of the offence punishable under Sections 97 (1) and 278 of the Penal Code.
He therefore urged the Court to resolve the issue in favour of the Appellant and to hold that the trial Court was wrong when it held that the Respondent proved its case beyond reasonable doubt against the Appellant, and went ahead to convict the Appellant, accordingly to allow the appeal, set aside the decision of the trial Court and discharge and acquit the Appellant on the two count charge against her.
In response, Mr. Lawan, Hon. Attorney General & Commissioner for Justice submitted that the principle of Law is that proof of the offence of conspiracy is generally a matter of inference. He argued that the essential ingredients of the offence of conspiracy lies in the bare or mere agreement and association to an unlawful thing which is contrary to or forbidden by law, whether that thing is criminal or not and whether or not the accused persons had knowledge of its unlawfulness. He cited: BOUWOR V. STATE (2016) LPELR – 26054 (SC) 8 – 9.
He referred to page 15 lines 30 – 35 of the record to argue that the circumstances surrounding the arrangement of giving, receiving money and final handing over of the baby by the 2nd accused/ convict – Kaltime Mohammed, to the Appellant leads to no other conclusion than there was conspiracy. He cited: ADESINA V THE STATE (2010) LPELR – SC 304. The learned Attorney General went ahead to submit that the act of the Appellant and the other accused persons as well as Exhibits B, D and G left no doubt in the mind of the lower Court that there was an agreement to buy, sell or dispose of a human being.
He further submitted on the proper time to object to any confessional statement tendered by the prosecution relying on: NWOKEARU V STATE (2010) 5 NWLR (PT. 1215) 1.
Mr. Lawan contended that it is not in all cases that confession must be corroborated as statements made by an accused and properly admitted in law is the best guide to the truth of the role he played on which the Court can convict. He cited: ONYELE V. STATE (2012) NCC PAGE 304 AT 330; EBENEZER V. THE STATE (2018) LPELR – 43871 (CA) P. 27 PARAS C – F.
In reaction to the argument of the Appellant at paragraph 4.07 of the Appellant?s brief, the Respondent?s counsel argued that the mere purchase of a baby/human being is illegal and immoral. He strengthened his argument by referring to page 61 lines 5 – 15 of the record; Trafficking in Persons (Prohibition) Enforcement and Administration Act, 2015; the testimonies of PW 8 and DW 7 contained at pages 20 lines 30 ? 37; and 28 lines 33 ? 40.
He consequently submitted that the offences of criminal conspiracy, Buying and Selling of minors for immoral and unlawful purpose under Sections 97 and 278 of the Penal Code, Laws of Borno State 1994 were established against the Appellant.
He urged the Court to resolve the issue in favour of the Respondent; uphold the decision of the trial Court and dismiss the appeal.
RESOLUTION OF ISSUE
To help determine the appeal is the answer to the questions posed by the parties.
The Appellant’s submissions centred on the question:
‘Whether the Respondent had indeed proved the commission of the offences punishable under Sections 97 (1) and 278, beyond reasonable doubt.’
On his own, the Respondent’s submissions rested on the question:
‘Whether buying, selling, obtaining or disposal of babies/human beings is only a crime where the intention is for illegal or immoral purposes Criminal Conspiracy is defined in Section 96 of the Penal Code CAP 102 The Laws of Borno State.
The section provides thus:
“96 (1)When two or more persons agree to do or cause to be done
(a) An illegal act or
(b) An act which is not illegal by illegal means, Such an agreement is called criminal conspiracy.
(2)Notwithstanding the provisions of Subsection (1) no agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.”
Certainly, it is irrelevant that the illegal act is not the target object of such agreement, or is merely incidental to the object. The Appellant and one Zara Haruna (4th accused/ convict at the trial Court) were charged with criminal conspiracy to wit: ‘engage in the buying and selling of human beings for unlawful and immoral purposes and that you thereby committed an offence contrary to Section 97(1) and punishable under Sections 278 and 279 of the Penal Code Law, CAP 102, Laws of Borno State 1994.’
From the arguments of the Appellant’s counsel, it is my impression that he is contending that there was no conspiracy on the part of the Appellant under Section 97(1) of the Penal Code (supra) let alone one punishable under Sections 278 of the said Code. Section 278 deals with buying and selling of minors for prostitution or for any unlawful or immoral purpose. Clearly, this means the charge against the Appellant at the trial Court in count 1 is that she conspired with Zara Haruna to commit the offence spelt out in Section 278 of the Penal Code which offence I have noted above. The learned tried Judge relied on Exhibits B, D and G the alleged confessional statements of the Appellant and Zara to hold that the offence of conspiracy was proved. There is no dispute that there was a buying and selling of minors which involved the agreement of the Appellant and Zara but the contention is whether the mere agreement to buy and sell a minor without the ingredients of the offence in Section 278 of the Code will amount to conspiracy as charged. While the Appellant’s counsel answered in the negative to the poser, the Respondent’s counsel answered in the affirmative.
Now, on what is criminal conspiracy, Section 96 of the Penal Code (supra) is clear that it is an agreement of two or more persons to do or cause to be done an act that is illegal or though not illegal but by illegal means. YAKUBU V. STATE (SUPRA); KAYODE V. STATE (2012) 11 NWLR (PT. 1312) 523; TIMOH V. STATE (2012) 3 NWLR (PT. 1286) 144; ODUNAYO V. STATE (2014) 12 NWLR (PT. 1420) 1.
To part resolve this issue, the question that must be answered is whether the buying and selling of new born babies or minors as in this case for whatever reason is illegal. Prima facie the buying and selling of new babies or minors is not illegal because that is what an adoption entails but where as in this case, the Appellant who bought the baby and the person who sold her baby are persons without the authority to give or receive a baby in the name of adoption, the Appellant not being a Government Agency or duly authorised agent of Government that can sanction such agreement as she does nor run a recognised/licensed Motherless Baby’s Home authorised by Government of Borno State, I hold that the Appellant and Zara agreed to do or cause to be done an act which though not prima facie illegal but by illegal means. Children are not commodities to be bought in the open market as there are procedures involved in adopting a child. So I agree with the Respondent and the learned trial Judge that there was a conspiracy between the Appellant and one Zara to do an act by illegal means, which amounts to criminal conspiracy.
However, the issue whether the conspiracy as showcased by the alleged confessional statements of the Appellant and Zara; is proof of conspiracy contrary to Section 97 (1) and punishable under Sections 278 of the Penal Code (supra) by the Respondent is better answered along with the consideration whether the main charge against the Appellant was proved. This is more so since Section 97 (1) of the Penal Code (supra) did not create the offence of criminal conspiracy but provides for punishment for criminal conspiracy under special circumstances. For what I have said, I hold that the Appellant by the definition of criminal conspiracy in Section 96 of the Penal Code (supra), is guilty of the offence of conspiracy of an act though not prima facie illegal but done by illegal means.
On whether the offence punishable under Section 278 of the Penal Code (supra) was proved against the Appellant, the parties have their parallel stance. The argument of the Appellant?s counsel is that for the offence under the said section to be said to have been proved, the Prosecution must prove both the actus reus and the mens rea. He also argued that the extra judicial statement of the Appellant Exhibits D and D1 do not qualify as confessional statement.
There is no dispute that the extra judicial statements of the Appellants were not objected to at the point of admission, however this is not the issue that affects the determination of this appeal. The issue is their probative value having been rightly admitted.
Following Section 27 (1) of the Evidence Act a confession is an admission made at any time by a person charged with a crime stating or suggesting by inference that he committed a crime. For a confession to be used against an accused the Court must be satisfied that it is voluntary. The Court also has the duty to test the truth of a confessional by examining it in the light of the other credible evidence before the Court. See: R V. SYKES (1913) CAR PG. 113; R. V. OMOKARO (1941) 7 WACA 146; ACHABUA V. STATE (1976) NSCC PG. 74; YESUFU V. STATE(1976) 6 SC 167; SOLOLA V. STATE (2005) 11 NWLR PT. 937 PG. 460; IDOWU V. STATE (2000) 7 SC PT. 11 PG. 50; ALARAPE V. STATE (2001) 14 WRN PG. 1.
A confessional statement must of necessity be direct, positive, true and unequivocal of facts that satisfy the ingredients of the offence the accused person confesses to have committed. See: HARUNA V. A.G. FEDERATION (2012) 9 NWLR (PT. 1306) 419; EBENEZER V. THE STATE (2018) LPELR 43871 (CA); ADEKOYA V. STATE (2012) 9 NWLR (PT. 1306) 539;STATE V. ISAH (2012) 6 NWLR (PT. 1327); OLOWOYO V. STATE (2012) 17 NWLR (PT. 1329) 3446.
Before I go further, the issue for determination here is whether Exhibits D and D1, which are theextra judicial statements of the Appellant amount to confessional statements, and whether the learned trial Judge rightly relied on same in convicting the Appellant. A calm appreciation of Exhibits D and D1 will show that the Appellant admitted agreeing to take the child of the 2nd Accused/convict, and to giving money to her. This admission does not qualify a confession of the offence of criminal conspiracy punishable under Section 97 (1); and the offence punishable under Section 278 of the Penal Code Law of Borno State, 1994. It cannot therefore be the basis for the Respondent to be held to have proved the offence beyond reasonable doubt. In law, for Exhibits D and D1 to qualify as a confessional statement capable of being used to convict the Appellant, same ought to have admitted all the ingredients of the offences she was charged with. The statement ought to have admitted indeed that the Appellant agreed with Zara to buy the minor for the purpose of using him or her for prostitution, unlawful and or immoral purpose and went ahead to so buy them for that purpose. The ingredients were not stated nor could they be inferred from the statements.
The Exhibits, all other statements of the accused/convicts and the entire evidence on record; all were ad idem that the Appellant wanted the baby or babies for her sister in Abuja who had been married for ten years without a child. This was not investigated by the police. Exhibits D and D1 having not positively and directly admitted these vital ingredients of the offence under Section 278 of the Penal Code, I hold that the same did not qualify as confessional statements as to be relied upon to convict the Appellant as the learned trial Judge did.
Again, the learned trial Judge in finding the Appellant guilty based on Exhibits D and D1 sought for corroborative evidence from outside of the said exhibits to support the findings he made that indeed the Appellant confessed to the commission of the offence punishable under Section 278 of the Penal Code. Having held that Exhibits D and D1 are not confessional statements in that they did not admit, by any inference or admission, the ingredients of the offence punishable under Sections 97 (1) and 278 of the Penal Code Law; I must say the trial Court sought for corroboration in vain as that need did not by my holding above arise.
Accordingly, from the evidence on record, I hold that the trial Court was in error when it held that the Respondent proved its case beyond reasonable doubt against the Appellant, and was further in grave error when it convicted the Appellant for committing offence as charged under counts 1 and 3 for criminal conspiracy contrary to Section 97 (1) and punishable under Sections 287 and 289 of the Penal Code (supra); and the offence of buying and selling of babies punishable under Section 278 of the Penal Code.
Having thus held, then it means the Appellant whom I had found guilty for criminal conspiracy howbeit not under Section 97 (1) of the Penal Code nor punishable under Section 287 of the Penal Code (supra); would be convicted and sentenced under another section of the Penal Code for which the proof of her guilt falls. An appellate Court can convict and impose a sentence on an appellant for lesser offence than that for which he was convicted by the trial Court when from the evidence on record the latter conviction should have been the proper one. See: AKWULE V. THE QUEEN [1963] 1 ALL NLR 193; BANDE V. THE STATE (1972) 10 SC 79; ADEBAYO V. THE REPUBLIC (1967) NMLR 391; ASUQUO V. STATE (2016) LPELR ? 41354 (CA). The apex Court in the case of OGU V. THE QUEEN [1963] NSCC 191; substituted a conviction of the Appellant for culpable homicide punishable with death contrary to Section 221 of the Penal Code Law with that of screening an offender punishable under Section 167 of the same Penal Code law. So in law an appellate Court such as the Supreme Court or the Court of Appeal has the power to substitute the verdict of the lower Court, and pass a sentence in substitution for the offence contrary to that of the trial Court as may be warranted in law and the justice of the case.
For what I have said above, I shall substitute the Appellant’s conviction and sentence of criminal conspiracy punishable under Section 97 (1) of the Penal Code Law, with conviction and sentence of criminal conspiracy punishable under Section 97 (2) of the Penal Code Law, which provides thus:
‘Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with punishment for a term not exceeding six months or with fine or with both.’
Consequently, I resolve the sole issue substantially in favour of the Appellant.
Appeal therefore has merit and the same succeeds and is allowed to the extent of its merit. I set aside the judgment of the High Court of Borno State in Charge No: BOHC/MG/CR/41/2016 delivered on 13th April, 2017; by F. Umaru, J. in respect of counts 1 and 3 of the charge; and in line with the orders I make hereunder.
I ORDER THAT:
(a) The conviction and sentence of the Appellant by the trial Court wherein she was found guilty, convicted and sentenced for the offence of conspiracy punishable under Section 97(1) of the Penal Code Law, CAP 102, Laws of Borno State 1994; be quashed and, is hereby quashed.
b. The conviction and sentence of the Appellant by the trial Court wherein she was found guilty and accordingly convicted and sentenced for the offence of buying and selling of minors for immoral and unlawful purpose punishable under Section 278 of the Penal Code Law, CAP 102, Laws of Borno State 1994; be quashed and, is hereby quashed.
AND IN ITS STEAD, I substitute the Appellant?s conviction and sentence on count one of the charge as follows:
c. That I find you Ngozi Nwokocha alias Lilian Ngozi Nwoke nee Aniekwe guilty and accordingly convict you for the offence of conspiracy punishable under Section 97 (2) of the Penal Code Law, CAP 102, Laws of Borno State 1994.
d. The court hereby sentence you Ngozi Nwokocha alias Lilian Ngozi Nwoke nee Aniekwe (the Appellant) to six months imprisonment and in addition , you are ordered to pay a fine of N200,000.00 for the offence of conspiracy punishable under Section 97 (2) of the Penal Code Law, CAP 102, Laws of Borno State 1994.
Accordingly:
e. That you Ngozi Nwokocha alias Lilian Ngozi Nwoke nee Aniekwe (the Appellant), stand discharged and acquitted for the offence of criminal conspiracy under Section 97(1) and punishable under Sections 278 and 279 of the Penal Code Law, CAP 102, Laws of Borno State 1994; as charged in count 1.
f. That you Ngozi Nwokocha alias Lilian Ngozi Nwoke nee Aniekwe (the Appellant) stand discharged and acquitted for the offence of buying and selling of minors for immoral and unlawful purpose punishable under Section 278 of the Penal Code Law, CAP 102, Laws of Borno State 1994.
ADZIRA GANA MSHELIA, J.C.A.: I agree.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Uchechukwu Onyemenam, JCA. I agree with the conclusions reached and abide the consequential orders contained therein.
Appearances:
N. A. Dammo, Esq. with him, L.S. Nshem, Esq. and F. Golok, Esq.For Appellant(s)
For Respondent(s)
