IDOWU FOLORUNSO v. FEDERAL REPUBLIC OF NIGERIA
(2019)LCN/12778(CA)
In The Court of Appeal of Nigeria
On Friday, the 1st day of March, 2019
RATIO
CRIMINAL LAW: TO DISCHARGE ONUS OF PROOF
“Nevertheless proof beyond reasonable doubt does not mean that the prosecution must prove its case with mathematical exactitude, nor does it mean proof beyond any shadow of doubt. The prosecution is said to have proved its case beyond reasonable doubt when it has proved all the ingredients of the particular offence the accused is charged with, see DIBIE VS STATE (2004) 14 NWLR PART 893 PAGES 284-285. SMART VS. THE STATE (SUPRA). ANEKWE VS. STATE (2014) LPELR-22881 (SC). In the discharge of the onus of proof, there are three ways by which the prosecution can prove the commission of a crime. (1) By evidence of eye witness i.e. direct evidence. (2) By Confessional Statement of the accused person. (3) By circumstantial evidence. See the following case:- OKON ETIM AKPAN VS. THE STATE (Supra). GIRA VS. THE STATE (1996) 4 SCNJ PAGE 95 AT 106. EMEKA VS. THE STATE (2001) LPELR-1125 (SC), (2001) 6 SCNJ PAGE 259. OGIDI VS. STATE (2005) VOL. 5 MJSC PAGE 155 AT 173-174 PARAGRAPHS G-A.” PER JIMI OLUKAYODE BADA, J.C.A.
JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Federal High Court, Ibadan Division in charge No: FHC/IB/8C/2016 BETWEEN: FEDERAL REPUBLIC OF NIGERIA VS IDOWU FOLORUNSO and Another delivered on the 26th September, 2016.
Briefly the facts of the case are that by a charge sheet dated 9th February 2016, the Appellant was charged with two counts charge, to wit, (a) procuring one Adesina Opeyemi Abidemi to be used for prostitution under Section 15 (a) of the Trafficking in Persons (Prohibition) Enforcement and Administration Act (b) Organising foreign travel for the purpose of prostitution contrary to Section 16 of the trafficking in persons (prohibition) Enforcement and Administration Act.
Upon arraignment the Appellant pleaded not guilty to the two count charges and trial commenced on the 17th February, 2016.
The Prosecution called 4 witnesses, tendered two exhibits and closed its case while the Appellant testified for himself, and tendered exhibit and closed his case.
The lower Court in its Judgment found for the Respondent herein and convicted the Appellant on the two counts charge. He was sentenced to seven (7) years imprisonment with hard labour without an option of fine for the offence of procurement of persons for prostitution, on the second count he was also sentenced to seven (7) years imprisonment with hard labour without option of fine for the offence of organizing foreign travel which promotes prostitution.
The Appellant, who was dissatisfied with the Judgment of the lower Court, appealed to this Court.
The learned Counsel for the Appellant formulated three issues for the determination of the appeal. The said issues are reproduced as follows: –
(1) Whether it was right for the trial Court to have shifted the burden of proving that the Appellant did not commit the offence for which he was charged on the Appellant.
(2) Whether by the totality of evidence before the trial Court, the prosecution indeed proved the guilt of the Appellant beyond reasonable doubt.
(3) Whether the lower Court was right to have given probative value to the evidence of PW1 and PW4.
On the other hand, the learned Counsel for the respondent formulated a sole issue for the determination of the appeal. The said issue is reproduced as follows: –
Whether the trial Court was right in convicting and sentencing the Appellant.” (Distilled from Grounds 1, 2 and 3 of the Notice of Appeal)
At the hearing of this appeal on 15th day of January 2019, the learned Counsel for the Appellant stated that the appeal is against the Judgment of the Federal High Court, Ibadan division delivered on 26/9/2016.
The notice of Appeal was filed on 12/4/18 pursuant to the order of this Court made on 9/4/2018. The Record of Appeal was transmitted on 25/4/2018.
The Appellants brief of argument was filed on 10/5/18 and deemed as properly filed on 22/11/2018. The learned Counsel for the Appellant in response to the Respondents brief filed Appellants reply brief of argument on 4/6/2018.
He adopted and relied on the Appellants brief as well as Appellants reply brief of argument as his argument in urging that this appeal be allowed.
The learned Counsel for the Respondent also referred to the Respondents brief of argument filed on 23/5/2018.
She adopted and relied on the said brief as her argument urging that the appeal be dismissed.
I have perused the issues formulated for the determination of the appeal by Counsel for both parties. The issues are like half a dozen and six, but the issue formulated on behalf of the Respondent encapsulates the issues formulated on behalf of the appellant. I will therefore rely on the sole issue formulated on behalf of the Respondent in the determination of this appeal.
ISSUE FOR THE DETERMINATION OF THE APPEAL.
Whether the trial Court was right in convicting and sentencing the Appellant.” (Distilled from Grounds 1, 2 and 3 of the Notice of Appeal)
The learned Counsel for the Appellant in his submission stated that the burden of proof in a criminal case is placed on the prosecution. He relied on: –
SECTION 135 (1) AND (2) OF THE EVIDENCE ACT 2011.
SECTION 36 (5) OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA (AS AMENDED)
STATE VS AJAYI (2016) 14 NWLR PART 1532 PAGE 196 AT 222-223
ALABI VS THE STATE (1993) 7 NWLR PART 307 PAGE 511 PARAGRAPHS A-C.
The learned Counsel for the Appellant submitted that the prosecution is under obligation to prove the Appellants guilt beyond reasonable doubt, and not for the Appellant to prove his innocence. He stated that all that the Appellant did was that he only called PW1 on his mobile phone at the instance of his wife (2nd Defendant) to inform the PW1 that his wifes sister (Odunayo Fashola) was around and that she (PW1) should come over, and that on the PW1?s arrival, his wifes sister (Odunayo Fashola) and PW1 had a discussion about travelling and PW1 indicated her interest in travelling.
It was submitted on behalf of the Appellant that there was no evidence which suggests that the Appellant had any prior knowledge that Odunayo Fashola resides or engaged as a commercial sex worker in Libya.
He relied on the case of:- CHIANUGO VS THE STATE (2002) 2 NWLR PART 750 PAGE 225 AT 236 PARAGRAPHS F-G
It was submitted on behalf of the Appellant that the arrangement to meet with Odunayo Fashola cannot be a primary proof of the evidence of procuring PW1 to be used for prostitution.
He relied on OKOROJI VS STATE (2002) 5 NWLR PART 759 PAGE 21 AT 53 PARAGRAPHS A-D.
It was contended on behalf of the Appellant that there is contradiction in the evidence of PW1 and other witnesses. He submitted that the lower Court should not have believed the evidence of PW1. He urged this Court to discharge the Appellant.
He relied on the following cases: – ARUNA VS STATE (1990) 6 NWLR PART 155 PAGE 125 AT 134.
CHUKWU VS STATE (2007) 13 NWLR PART 1052 PAGE 430 AT 465 PARAGRAPHS G-H.
UGHENEYOVWE VS STATE (2004) 12 NWLR PART 888 PAGE 626 AT 647.
OGUNYADE VS OSHUNKEYE (2007) 15 NWLR PART 1057 PAGE 218 AT 242 PARAGRAPHS A-B.
The learned Counsel for the Appellant also submitted that the lower Court was wrong to have given probative value to the evidence of PW1 and PW4. He relied on GBENGA STEPHEN VS THE STATE 2013 LPELR 20178.
He submitted that the findings of the lower Court that evidence of PW2, PW3 and PW4 corroborated the testimony of PW1 is incorrect. He stated that the witnesses statement on Oath of PW2, PW3 and PW4 were at variance with that of PW1. He went further that the witnesses could not fix the appellant with the commission of the crime in question.
It was also argued that PW2 and PW4 gave hearsay evidence. He relied on –
NWOCHA VS THE STATE (2012) LPELR 9223
HAMZA VS THE STATE (2016) LPELR 41557.
He finally urged this Court to allow the Appeal and set aside the Judgment of the lower Court, and discharge and acquit the Appellant.
The learned Counsel for the Respondent stated that this issue touches on whether having regard to the circumstances and the entire evidence before the Court, the Appellant ought to have been convicted.
She submitted that in criminal trials the burden is on the Respondent to proof the guilt of the Appellant and the standard required is proof beyond reasonable doubt.
She relied on the case of:- OKON ETIM AKPAN VS THE STATE (2016) 1-2 SC PART III PAGE 93 AT 103 PARAGRAPH 25-35.
It was also stated on behalf of the Respondent that there are 3 ways to prove the guilt of an accused viz: –
(1) Through a Confessional Statement made by the accused.
(2) By circumstantial evidence
(3) By evidence of an eye witness.
Learned Counsel for the Respondent relied on the following cases: –
OGIDI VS STATE (2005) VOL. 5 MJSC PAGE 155 AT PAGES 173-174 PARAGRAPHS G-A
DAVID OBUE VS THE STATE (1976) ALL NLR PAGE 139.
She submitted that the facts of each case give rise to the application of principles of law and that principles of law cannot stand in isolation of the facts of the case. She contended that the Appellant did not dispute the evidence that he met and initiated the meeting with the Prosecution witness No. 1, that one Titilayo Folorunso was aware of his meeting with the Prosecution witness No.1 and that as a result of the meeting the PW1 met Titilayo Folorunso at her shop where the trip to Libya was organized.
She submitted finally that the Appellant woefully failed to discredit the Judgment of the trial Court to obtain the relief sought. She urged this Court to affirm the trial Courts judgment and dismiss this appeal.
In his reply brief of argument, the learned Counsel for the appellant reiterated his earlier submission and went further that the Respondent is grossly mistaken in its belief that guilty mind is not an ingredient of the offences under Section 15 (a) and 16 of the Trafficking in Persons (Prohibition) Law Enforcement and Administration Act. He contended that it is not mere procurement or organizing of foreign travels that matters under the law but that it is the object of the procurement or the purpose of the foreign travels organized.
He submitted that even if the Appellant had made the first move in getting PW1 interested in traveling, that there was no shred of evidence that the Appellant knew that Odunayo Fashola was involved in procuring people for prostitution.
He went further in his argument that the prosecution owed it a duty to show that the Appellant all along knew the real purpose of PW1s ill-fated trip but kept that from her.
It was also contended on behalf of the Appellant that Exhibit B contains no admissions or confession by the Appellant which stated that he procured PW1 for prostitution. He relied on the following cases:-
ISAH VS STATE (2007) 12 NWLR PART 1049 PAGE 582 AT 611 PARAGRAPHS C-F.
STATE VS OLASHEHU SALAWU (2011) 8 NWLR PART 1279 PAGE 580 AT 625 PARAGRAPHS B-D.
On the whole the learned Counsel for the Appellant urged this Court to set aside the judgment of the trial Court.
RESOLUTION:
It is settled law that in a Criminal Prosecution, the standard of proof required is that of proof beyond reasonable doubt. Under Section 135 (1) of the Evidence Act 2011 if the commission of a crime by a party to any proceeding is directly in issue in any Proceeding, civil or criminal, it must be proved beyond reasonable doubt.
See the following cases:-
AKINLOLU VS. STATE (2015) LPELR-25986 (SC)
EGHAREVBA VS. THE STATE (2016) LPELR-40029 (SC).
SMART VS. THE STATE (2016) LPELR-40827 (SC).
ITA VS. STATE (2016) LPELR-26063 (SC).
Nevertheless proof beyond reasonable doubt does not mean that the prosecution must prove its case with mathematical exactitude, nor does it mean proof beyond any shadow of doubt. The prosecution is said to have proved its case beyond reasonable doubt when it has proved all the ingredients of the particular offence the accused is charged with, see DIBIE VS STATE (2004) 14 NWLR PART 893 PAGES 284-285.
SMART VS. THE STATE (SUPRA).
ANEKWE VS. STATE (2014) LPELR-22881 (SC).
In the discharge of the onus of proof, there are three ways by which the prosecution can prove the commission of a crime.
(1) By evidence of eye witness i.e. direct evidence.
(2) By Confessional Statement of the accused person.
(3) By circumstantial evidence.
See the following case:-
OKON ETIM AKPAN VS. THE STATE (Supra).
GIRA VS. THE STATE (1996) 4 SCNJ PAGE 95 AT 106.
EMEKA VS. THE STATE (2001) LPELR-1125 (SC), (2001) 6 SCNJ PAGE 259.
OGIDI VS. STATE (2005) VOL. 5 MJSC PAGE 155 AT 173-174 PARAGRAPHS G-A.
The learned Counsel for the Appellant contended that the Respondent did not prove its case against the Appellant beyond reasonable doubt.
In order to get to the root of the case it would be necessary at this stage to reproduce the two counts charge upon which the Appellant was tried and convicted. It is set out as follows:-
Count 1
That you Idowu Folorunso, Male, 37 years old of Odo-Oba, Elere Area, Ibadan, Titilayo Folorunso A.K.A Iya Shade, Female 35 years old of Odo-Ona Elewe Oriapata Street, Ibadan and one Odunayo Fashola (at large) on or about May 2014 at SW/25 Balara Area, Academy Ibadan, Oyo State within the jurisdiction of the Federal High Court procured Adesina Opeyemi Abidemi, Female, 33 years old, of SW/25 Balaro Area, Academy, Ibadan, Oyo State to be used for prostitution in Libya and thereby committed an offence contrary to Section 15(a) Trafficking in Persons (prohibition) Law Enforcement and Administration Act 2003 as amended and punishable under the same section of the Act.
Count 2
That you Idowu Folorunso, Male, 37 years old of Odo-Oba, Elere Area, Ibadan, Titilayo Folorunso, A.K.A Iya Shade, Female, 35 years old of Odo-Ona Elewe Oriapata Street, Ibadan and one Odunayo Fashola (at large) on or about May 2014 at SW/25 Balaro Area, Academy Ibadan, Oyo State within the jurisdiction of the Federal High Court organized foreign travel which promotes prostitution for Adesina Oyeyemi Abidemi, Female, 33 years old of SW/25 Balaro Area, Academy Ibadan, Oyo State to Libya and thereby committed an offence contrary to Section 16 Trafficking in Persons (prohibition Law Enforcement and Administration Act 2003 as amended and punishable under the same section of the Act.
Section 15(a) and 16 of the Trafficking in Persons (prohibition) Law Enforcement and Administration Act 2003 as amended, under which the Appellant was charged provides as follows:-Section 15(a)
Any person who procures, uses or offers any person for prostitution or the production of pornography or for pornographic performance commits an offence and is liable on conviction to imprisonment for fourteen years without an option of fine.
Section 16: Any person who organizes or promotes foreign travels, which promotes prostitution of any person or encourages such activity commits an offence and is liable on conviction to imprisonment for ten years without an option of fine.
The learned Counsel for the Appellant contended that the ingredient for proving offence of procurement for prostitution and organizing foreign travel which promotes prostitution is proof of guilty knowledge.
A careful reading of the Trafficking in persons and Administration Act 2003 as amended did not define the words procurement and organize.
But Blacks Law Dictionary 8th edition page 1244 defines procurement as the act of getting or obtaining something.The act of persuading or inviting another especially women or child to have illicit sexual intercourse.
While the word organize was defined on page 824 of the Oxford Advanced Learners Dictionary as:-
To arrange for something to happen or be provided.
To arrange something or part of something.
With the above definitions in mind the prosecution i.e the Respondent called PW1 who testified as follows:-
I am an NCE holder and a business woman. I am 33 years old. I know the two Defendants. It was in 2012, I know the 2nd Defendant as my friend and as a customer since then have (sic) close together as family friend. So I got married in 2013, so I relocated to Academy Orita. So after I delivered my baby, it was in October, I called my friend the 2nd Defendant, she came to my baby naming ceremony. Since that day, we departed (sic). After 7months the 1st Defendant called my phone number that he wants to see me. That he is at my Street entrance. That I should come and meet him there, so I went there to see him, he discussed with me about his wifes sister that she arrived from Cairo. He said that he is looking for those who are hardworking people and before they complete four. That is why he came to see me to let me know. Then I told him I am nursing baby that I cannot go anywhere so he now said it is an opportunity. That dont I have any mother at home to help me. So I now said I have mother that I will go. The 1st Defendant told me that it is an opportunity for me. That I am hard working he does not want me to loose this opportunity. He told me that he knows I can help his children in the nearest future that is why he came to me. After that he told me to go and see his wife at her shop, so we can discuss. (See pages 84-85 of the Record of Appeal)
In Exhibit B i.e the extra Judicial Statement of the Appellant. The Appellant explained how he approached PW1 and discussed the issue of travelling with her.
Except from Exhibit B read thus:-
Sometime 2 years ago, I met Adesina Abidemi A.K.A Opeyemi and I discussed traveling issues with her, I asked her if she was interested in travelling, before then my wifes, younger sister by the name Odunayo Fashola had told me to help her look for any girl who was interested in travelling. Odunayo Fashola lives in Italy now. As at when she asked me to look for someone for her she was in Malta in Libya. I meet Opeyemi because she was my wifes friend then. Odunayo was in Nigeria then and they both agreed to meet at one of my in laws place. Yemisi Fashola.
The statement of the Appellant i.e Exhibit B and the evidence of PW1 showed that it was the Appellant who initiated and introduced travelling to Cairo to the PW1. Exhibit B also corroborated the testimony of PW1 as well as PW2
On page 105 lines 1-2 of the Record of Appeal, the PW2 stated among others as follows:-
I met pw1 in connection house. They do prostitution work. The PW1 was not the only one in that house.
The excerpts of the testimony of the PW2 showed that the Appellant initiated, introduced and procured the PW1 for Odunayo Fashola to go to Libya where she was used for prostitution, and Appellant organized PW1s meeting with Odunayo Fashola for onward movement to Libya for prostitution.
It was contended on behalf of the Appellant that there were contradictions in the evidence of the Appellant. But I am of the view that there is no material contradiction in the evidence of PW1. It is not every trifling inconsistency in the evidence of the prosecution that is fatal to the case of the prosecution. It is only when such contradictions, inconsistencies or conflict are substantial, crucial and fundamental to the main issues in question, which may create doubts in the mind of the trial Judge that an accused may be entitled to benefit therefrom.
It is therefore my view that in this appeal under consideration the alleged discrepancies in the evidence of prosecution witnesses are not substantial by themselves to entitle the Appellant to an acquittal. The evidence of prosecution witnesses which indicted the appellant before the trial Court was never challenged.
The Appellant admitted in Exhibit B that he approached PW1 and discussed traveling issues with PW1. Therefore the issue of not having guilty knowledge does not arise.
Also in his defence at the trial Court the Appellant did not dispute the evidence that he met and initiated the meeting with PW1 where the trip to Libya was organized. (see page 115 of the record of appeal).
In view of the foregoing I am therefore of the view that the learned trial Judge was right when he arrived at the conclusion that the Appellant along with his wife procured PW1 i.e Abidemi Opeyemi Adesina to be used for prostitution in Libya.
The PW1 went through what could be described as mans inhumanity to man. The act of procuring a fellow human being for prostitution is a very wicked act.
In the circumstance this issue is therefore resolved in favour of the Respondent and against the Appellant.
It is my view that this appeal lacks merit and it is dismissed.
The Judgment of the lower Court in charge No. FHC/IB/8C/2016 Between FEDERAL REPUBLIC OF NIGERIA VS. IDOWU FOLORUNSO & ANOTHER delivered on the 26th day of September 2016 is hereby affirmed.
Appeal dismissed.
HARUNA SIMON TSAMMANI, J.C.A.: I had the advantage of reading in advance the judgment delivered by my learned brother, Jimi Olukayode Bada, JCA. I am in complete agreement that the learned trial Judge was right in convicting the Appellant on the two Counts Charge of procuring Adesina Opeyemi Abidemi to be used for prostitution and for promoting prostitution which are offences contrary to Section 15 (a) of Trafficking In Persons Prohibition Law (Enforcement and Administration) Act, 2003.
The statement of the Appellant amply support the testimony of the PW 1 who is the victim of his acts.
I therefore agree with my learned brother that this appeal is wholly without merit. It is accordingly dismissed. The judgment of the Court below, delivered on the 26th day of September, 2016 is hereby affirmed.
ABUBAKAR MAHMUD TALBA, J.C.A.: I have had the advantage of reading in draft the Judgment just delivered by my learned brother Jimi Olukayode Bada JCA. This is an appeal against the Judgment of the Federal High Court Ibadan Division delivered on the 26th September, 2016.
The Appellant was charged with two counts to wit;
(a) Procuring one Adesina Opeyemi Abidemi to be used for prostitution under Section 15 (a) of the Trafficking in Persons (Prohibition) Enforcement and Administration Act.
(b) Organizing foreign travel for the purpose of prostitution contrary to Section 16 of the Trafficking in Persons (Prohibition) Enforcement and Administration Act.
Upon arraignment, the Appellant pleaded not guilty to the two counts charge. The trial commenced on the 17th February, 2016. The prosecution called PW 1,the victim, Adesina Opeyemi Abidemi and three other witnesses.
The prosecution tendered two Exhibits in an effort to prove its case beyond reasonable doubt. The Appellant testified for himself and he also tendered an Exhibit.
In a considered Judgment the lower Court found the Appellant guilty as charged and convicted him on the two counts charge. He was sentenced to Seven (7) years imprisonment without an option of fine and with hard labour on each of the two counts charge.
Being dissatisfied with the Judgment of the lower Court, the Appellant appealed to this Court. My learned brother has thoroughly dealt with the issues canvassed. I agree with his reasoning and conclusion.
There is no reason why any right thinking person would sympathize with those who indulge in the act of trafficking of persons either within or outside the country’s borders, for whatever reason, when the long arm of the law eventually catches up with them. Their conduct could be described as man’s inhumanity to man.
The appeal lacks merit and it is dismissed.
Appearances:
Mr. Bamidele IbironkeFor Appellant(s)
Mrs. Beeky Mama Jibo (Senior Legal Officer, NAPTIC)For Respondent(s)
