IFEANYI JUDE OBIAKPANI v. THE STATE
(2019)LCN/13435(CA)
In The Court of Appeal of Nigeria
On Friday, the 7th day of June, 2019
CA/B/304C/2015
RATIO
CONSPIRACY: THE AGREEMENT ITSELF IS SUFFICIENT OVERT ACT
It needs to be pointed out that in the offence of conspiracy, the agreement itself is sufficient overt act. Also, conspiracy is usually proved by evidence of subsequent conduct of the accused towards the commission of the substantial offence, see STATE V. YUSUF (2007) ALL FWLR (PT.377) 1001 @1008 PARAS C-F. In OBIAKOR V. THE STATE (2002)10 NWLR (PT.776) 612 @628 PARAS G, where the Supreme Court held that in a charge of conspiracy, the actual agreement alone constitutes the offence and it is not necessary to prove that the act has in fact been committed. In the instant case, there is no doubt that there is a meeting of the minds between the Appellant and Peter Eze to kidnap the victim with a view to extorting money from his family. It was in furtherance of this that Peter Eze sent PW2 and 3rd accused to lure out their physically challenged victim which eventually led to his kidnap. The offence of conspiracy was therefore well established.PER PHILOMENA MBUA EKPE, J.C.A.
JUSTICES
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
Between
IFEANYI JUDE OBIAKPANI Appellant(s)
AND
THE STATE Respondent(s)
PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice T.O. Diai of the High Court of Delta State sitting in Ogwashi-Uku, delivered on the 13th day of June, 2012, wherein the learned trial judge convicted the Appellant of the offences of conspiracy, kidnapping and demanding with menaces.
SUMMARY OF RELEVANT FACTS:
The Appellant, together with Peter Okafor and Christian Eze were arraigned on a three count charge of conspiracy to commit kidnapping, kidnapping and demanding with menace punishable under Sections 516, 364(2) and 406 of the Criminal Code Cap. 48 vol. II Laws of the Defunct Bendel State 1976 as applicable in Delta State. The charge was later amended by deleting Cap. 48 Volume 11, Laws of Defunct Bendel State, 1976 as applicable to Delta State in the statements of offence in counts I, II, and III to reflect Cap. C21 VOL. 1 Laws of Delta State, 2006. The Appellant upon arraignment pleaded not guilty to the three count charge.
?In proof of its case, the Respondent called three witnesses and tendered some exhibits, including the confessional statement of the
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Appellant which was admitted and marked exhibit A. The Appellant on his part, testified in his own defence and called no other witness.
The case of the Respondent in summary was that the Appellant complained to the 2nd accused person that he was always surcharged anytime his cousin who resides in the United States of America sends money. To this end, the Appellant conspired with the 2nd accused to kidnap one Anthony Ogbolumani, who had down?s syndrome. In furtherance of the plot, the 2nd accused who is a pastor, sent PW2 (Joy Ofulue) with the 3rd accused to lure the victim out from his house in the guise of attending prayers.
On 21st day of December 2009, Anthony Ogbolumani, the cousin of the Appellant was kidnapped. Calls were made to PW1 (Obianuju Osadebe) requesting for the ransom of twenty million naira, failing which the victim will be murdered. PW1 reported to the police as well as the State Security Service. The victim was later discovered by the SSS at Awka, Anambra State in the house of the 3rd accused person.
The Appellant in his defence denied knowledge or involvement in the kidnap. He also denied knowing the other accused persons.
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The learned trial judge after evaluating the evidence of both parties, and after considering the final addresses of counsel on both sides, convicted the Appellant on all the three counts and sentenced him to 7, 10 and 3 years imprisonment respectively for the offences of conspiracy to commit kidnapping, kidnapping and demanding with menace.
NOTICE AND GROUNDS OF APPEAL:
Being dissatisfied with his conviction, the Appellant via a Notice of Appeal filed on the 6th day of July, 2012 appealed to this Court.
The Notice of Appeal shorn of its particulars is reproduced herein:
Ground One:
The learned trial judge erred in law and on facts when he tried and convicted the Appellant for the offences of conspiracy, kidnapping and demanding with menaces.
Ground Two:
The learned trial judge erred in law and on facts by convicting the Appellant upon the prosecution failing to prove its case beyond all reasonable doubt.
Ground Three:
The learned trial judge erred in law and on facts by failing to consider or adequately consider the defence of ALIBI of the Appellant.
Ground Four:
The learned trial judge
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wrongfully, without adequate consideration, admitted in evidence alleged or purported ?confessional? statement of the appellant.
Ground Five:
The judgment was altogether unwarranted, unreasonable and cannot be supported having regard to the evidence adduced at the trial.
ISSUES FOR DETERMINATION:
By a brief of Argument dated 29th March, 2017, but filed on the 31st day of March, 2017, the Appellant distilled the following issues for determination:
a. Whether the learned trial judge was right in convicting the Appellant upon the prosecution failing to prove its case beyond reasonable doubt.
b. Whether the learned trial judge was right in convicting the Appellant for the offence of conspiracy, kidnapping and demanding with menaces, where the evidence led by the prosecution amounted to and constitutes the offences of deprivation of liberty punishable under Section 365 of the Criminal Code Cap. C21 Vol. 1, Laws of Delta State.
c. Whether the learned trial judge was right for not taking into consideration the two years and nine months the Appellant spent in custody in sentencing him.
On its part, the Respondent in
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a brief dated 31st of December 2018, filed on 25th of February 2018, but deemed as properly filed on 28th of February 2019, settled by E. Erebe, Esq. an Assistant Director, Department of Appeals, Ministry of Justice, Asaba, Delta State, the Respondent formulated a sole issue for the determination of the appeal, to wit: whether the learned trial judge was right in convicting the Appellant for the offences of conspiracy to kidnap, kidnapping and demanding with menaces.
A perusal of the issues for determination reveals that no issues were formulated from grounds three and four of the Notice and Grounds of Appeal. The implication is that the Appellant is deemed to have abandoned those grounds.
Flowing from this also, I have taken a second look at the grounds of Appeal but I find it difficult to decipher the ground from which the Appellant distilled the third issue for determination. The law is settled that issues for determination must flow from the grounds of appeal, seeEZEMBA V. IBENEME (2004) ALL FWLR (PT.223) 1786 @ 1818-1819 PARA G-C. The 3rd issue as formulated by the appellant is therefore incompetent and ought to be struck out.
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I have perused the issues as formulated by the Appellant and Respondent, in my humble view, this appeal can effectively be decided based on the issue distilled by the Respondent.
Appellant?s issues one and two can be subsumed in Respondent’s lone issue. To this end, I adopt the lone issue formulated by the Respondent to determine this appeal.
ARGUMENT:
On this sole issue, the Appellant stated that the Respondent failed to prove its case beyond reasonable doubt. Learned counsel for the Appellant submitted that proof beyond reasonable doubt entails proof of each and every ingredient of the offence(s) charged. Counsel opined that failure to prove any of the ingredients means the offence has not been proved beyond reasonable doubt. Counsel cited OJO V. F.R.N.(2008) 11 NWLR (PT.1099) 467 Ratio 8 & 9 and ISIBOR V. THE STATE (2001) FWLR (PT.79) 77 @ 110 PARAS B-F to buttress this point.
Arguing further, counsel contended that the prosecution was not able to prove any of the charges against the Appellant. Referring to pages 164-167 of the Records, counsel stated that none of the prosecution witnesses was able to link the Appellant to the
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commission of the crime. Counsel urged that the doubt as evident in the case of the prosecution be resolved in favour of the Appellant.
In a further argument, learned counsel for the Appellant quoted Section 365 of the Criminal Code Cap. C21 Vol.1 Laws of Delta State, 2006 and submitted that the totality of the evidence of the prosecution points to the offence of deprivation of liberty, and not conspiracy, kidnapping and demanding with menaces as contained in Section 364 of the same law, under which the Appellant was tried and convicted.
Counsel went on to submit that the essential element of the offence of conspiracy is the meeting of the minds of the conspirators; the case of SHOFOLAHAN V. STATE (2013) 17 NWLR (PT.1383) 281 @ 317 PARA E was called in aid on this point. Counsel stated that there is no evidence that the Appellant met with or communicated with any of the other accused persons to warrant his conviction for conspiracy.
Counsel urged that the appeal be allowed and the conviction of the Appellant be quashed.
In reply, learned counsel for the Respondent submitted that the lower Court was right in holding that the prosecution has
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proved each of counts i, ii and iii beyond reasonable doubt. Counsel reproduced Section 135 of the Evidence Act on the standard of proof in criminal cases. Counsel cited DIBIE V. THE STATE (2004) 14 NWLR (PT.893) 257 @ 284-285 PARAS H-A on the point that proof beyond reasonable doubt does not require mathematical exactitude or proof beyond any shadow of doubt, but proof of the ingredients of a particular offence. Counsel cited R. v. CORT (2004) 14 ALL ER 137 on the elements of the offence of kidnapping. Counsel reproduced excerpts from the evidence of PW1 and PW2 as contained at pages 48-49 and 54-55 of the records. He also reproduced parts of Exhibit A (the confessional statement of the Appellant) and submitted that an x-ray of the evidence of PW?s 1 & 2 vis a vis Exhibit A shows that Exhibit A is consistent with evidence on record and shows without doubt that the Appellant was part of the team that kidnapped, held hostage and demanded ransom for the release of one Anthony Ogbolumani.
Arguing further, learned counsel for the Respondent contended that the offence of conspiracy is complete when two or more people agree to do an unlawful act or
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to do a lawful act by unlawful means. Counsel stated that conspiracy can be inferred from what a person did or failed to and the case of ADEJOBI V. STATE (2011) 12 NWLR (PT.1261) 347 @ 378-379 PARAS H-C was called in aid for this proposition. Counsel submitted that conspiracy was firmly established from the extra judicial statement of the Appellant. Counsel quoted excerpts from Exhibit A and submitted that the only reasonable inference is that the Appellant, pastor and Eze had a meeting of mind in pursuance of a common criminal purpose which was to kidnap Anthony Ogbolumani.
Still on this issue, learned counsel submitted that the lower Court was right in holding that the offence of demanding with menace was proved beyond reasonable doubt. Counsel cited AKINDIPE V. STATE (2008) 15 NWLR (PT.1111) 560 @ 571 PARAS E-F for the ingredients of the offence of demanding with menace. Counsel x-rayed the evidence of the PW1 and the extra judicial statement of the Appellant, and stated that it was proved that there was demand of the sum of twenty million naira by the Appellant and his team, with a threat that Anthony would be killed if the money was not paid; and the
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purpose of the money was to steal the money from the family of the victim.
Counsel concluded by urging that the appeal be dismissed on the grounds that the prosecution proved its case beyond reasonable doubt; and that a sentence of imprisonment takes effect and includes the date on which it was pronounced.
OPINION:
The question that calls for an answer in this appeal is whether the learned trial judge was right in convicting and sentencing the Appellant for the offences of conspiracy, kidnapping and demanding with menace. Without mincing words, I am of the view that predicated on the evidence before the trial judge, His Lordship evaluated the evidence before him in the decision of convicting and sentencing the Appellant. The learned counsel for the Appellant had argued that there was no agreement between the Appellant and the other accused persons, hence he cannot be convicted for conspiracy. With due respect to learned counsel, this argument flies in the face of the evidence adduced at the Court below. It needs to be pointed out that in the offence of conspiracy, the agreement itself is sufficient overt act. Also, conspiracy is usually proved
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by evidence of subsequent conduct of the accused towards the commission of the substantial offence, see STATE V. YUSUF (2007) ALL FWLR (PT.377) 1001 @1008 PARAS C-F. In OBIAKOR V. THE STATE (2002)10 NWLR (PT.776) 612 @628 PARAS G, where the Supreme Court held that in a charge of conspiracy, the actual agreement alone constitutes the offence and it is not necessary to prove that the act has in fact been committed. In the instant case, there is no doubt that there is a meeting of the minds between the Appellant and Peter Eze to kidnap the victim with a view to extorting money from his family. It was in furtherance of this that Peter Eze sent PW2 and 3rd accused to lure out their physically challenged victim which eventually led to his kidnap. The offence of conspiracy was therefore well established.
As regards the offences of kidnap and demanding with menace, the evidence of PW1 pointedly and cogently established it. From the evidence of PW1 it is crystal clear that the victim was held against his wish and demand was made for money before he could be released. This piece of evidence which was neither controverted nor contradicted proves the offence of
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kidnap and demanding with menace. The confessional statement of the Appellant which was admitted in evidence after a trial within trial corroborates this piece of evidence. In other words, the prosecution, in my humble view, proved the guilt of the Appellant beyond reasonable doubt. The learned trial judge was therefore right in convicting the Appellant on the three count charge.
In conclusion, I hold the humble but firm view that the trial judge was right in convicting and sentencing the Appellant for the offences of conspiracy to kidnap, kidnapping and demanding with menaces. This appeal therefore to my mind has no merit and ought to be dismissed in its entirety.
Accordingly, the judgment of the trial Court delivered on the 13th day of June 2012, in Suit No. A/3C/2010 is affirmed.
Appeal Dismissed.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I agree
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read in draft form the judgment of my learned brother, Philomena Mbua Ekpe, JCA; just delivered.
I agree that this appeal lacks merit and I also dismiss it. I affirm the decision of the trial Court.
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Appearances:
Gabriel OtorFor Appellant(s)
C.O. Agbagwu with E.E. ErebeFor Respondent(s)
Appearances
Gabriel OtorFor Appellant
AND
C.O. Agbagwu with E.E. ErebeFor Respondent
