LUCKY ODOGWU v. THE STATE
(2019)LCN/13711(CA)
In The Court of Appeal of Nigeria
On Friday, the 26th day of July, 2019
CA/B/04C/2018
RATIO
HOW MANY WITNESSES ARE REQUIRED UNDER CRIMINAL LAW
In a criminal case, unless where the law provides otherwise, the Court can act on the evidence of a sole credible witness to conclude that a criminal accusation has been proved beyond reasonable doubt. See Yeboah v. The Queen (1953) 14 WACA 484; Alonge v. I.G.P. (1959) 4 FSC 203; Anthony Igbo v. The State (1975) 1 All NLR 70; Samuel Theophilus v. The State (1996) 1 NWLR (Pt. 423) 139; Martin Egbufor v. The State (2019) 5 NWLR (Pt. 1665) 260 and Chibuike Ofordike v. The State (2019) 5 NWLR (Pt. 1666) 395.
As a general rule, therefore, the prosecution has not only the privilege but also the prerogative to call such witness or witnesses it deems necessary to prove its case. See R.V. Adebanjo 2 WACA 315; Opayemi v. The State (1985) 2 NWLR (Pt. 5) 101 and Samuel Theophilus v. The State (1996) 1 NWLR (Pt. 423) 139 at 151, per Onu, JSC. PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
KIDNAPPING: THE INGREDIENTS OF THE OFFENCE OF KIDNAPPING
The elements or ingredients of the offence of kidnapping, which ought to be proved beyond reasonable doubt by the prosecution, have been established by the Supreme Court. For example, in the case of Bello Okashetu v. The State (2016) 15 NWLR (Pt. 1534) 126 at 148 ? 149, per Ogunbiyi, JSC, the Supreme Court explicitly stated as follows:-
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 person 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 the case of R v. Cort (2004) 4 All ER 137. PER MOORE ASEIMO ABRAHAM ADUMEIN, 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
LUCKY ODOGWU Appellant(s)
AND
THE STATE Respondent(s)
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment): The appellant was the accused person in Charge No. B/CD/33C/2011, wherein he was charged with and tried for the offence of kidnapping one Theresa Basil Ijiebor (F), in Benin City on the 30th day of August, 2010 thereby committing an offence contrary to Section 2 (1) of the Kidnapping (Prohibition) Law of Edo State, 2009 and punishable under Section 3 (2) of the said Law.
The prosecution fielded one witness while the appellant testified in his defence. Six (6) exhibits were tendered in the trial Court. At the close of evidence and upon hearing the addresses of learned counsel, the trial Court delivered a reserved judgment on the 26th day of May, 2017 whereby the appellant was found guilty, convicted and sentenced to 25 years imprisonment with hard labour. This appeal is against the said decision.
?The appellant filed an amended notice of appeal on 08/01/2018, which was deemed as properly filed on 06/03/2019. The amended notice of appeal contains five (5) grounds, from which the learned counsel distilled the following issues in the appellant?s brief filed on
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08/01/2018 but deemed as filed on 06/03/2019: –
?1. Whether the learned trial judge was right when he convicted the appellant for the offence of kidnapping when there was neither a complainant nor victim in the case.
2. Whether the learned trial judge was right when he convicted the appellant based on a purported confessional statement, Exhibit B which was not corroborated or tested to be true.
3. Whether the learned trial judge adequately considered the defence raised by the appellant and also rightly rejected the evidence on record which were in favour of the appellant.?
In the respondent?s brief filed on 13/08/2018 and deemed filed on 06/03/2019, a sole issue was raised for determination thus: –
?Whether or not the prosecution proved the offence of kidnapping as charged under S. 2(1) and 3(2) of the Kidnapping (Prohibition) Law of Edo State beyond all reasonable doubt as required by law given the evidence led by the prosecution and defence during trial.?
?
I adopt the issue identified by the learned counsel for the respondent as the germane issue which calls for determination. The issue raised by the
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respondent adequately covers the second and third issues formulated by the appellant. As a preliminary point, it is necessary to state immediately that the first issue framed by the appellant does not arise from any of the five (5) grounds contained in his amended notice of appeal and which grounds are hereby reproduced, shorn of their particulars: –
?GROUND ONE
That the judgment of the trial judge is unwarranted, unreasonable and cannot be supported having regard to the evidence.?
?GROUND TWO
The trial judge erred in law and caused serious miscarriage of justice when he sentenced the appellant to twenty five (25) years imprisonment for the offence of kidnapping.?
?GROUND THREE
The trial judge erred when he convicted the appellant without any credible and admissible evidence adduced by the prosecution.?
?GROUND FOUR
The learned trial judge erred by relying on a confessional statement that was not corroborated to convict the appellant.?
?GROUND FIVE
The trial judge erred when he failed to consider the defences available to the appellant.?
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As can be seen from the grounds of appeal, reproduced above, the first issue framed by the appellant is not covered by any of his grounds of appeal. The law is trite that an issue articulated for determination must arise from a ground or more of the grounds of appeal and that an issue not covered by a ground of appeal is incompetent. See A.G., Bendel State v. P.L.A. Aideyan (1989) 4 NWLR (Pt. 118) 646; State v. Dr. Olu Onagoruwa (1992) 2 NWLR (Pt. 221) 33; Ogbe v. Asade (2009) 18 NWLR (Pt.1172) 106; Rear Admiral Francis Echie Agbiti v. The Nigerian Navy (2011) 4 NWLR (Pt. 1236) 175 and Dr. Roy Pedro Ugo v. Augustina Chinyelu Ugo (2017) 18 NWLR (Pt. 1597) 218.
Since the appellant?s issue 1 is not related to any of the grounds of appeal, it is hereby struck out for being incompetent.
In respect of the issue which calls for determination, learned counsel submitted that only a representative of the Department of State Security Service ? PW1 testified for the prosecution but the respondent failed to ?call the victim as a witness to prove to the Court that she was truly kidnapped neither did they deem it necessary to also call the person whom they
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claimed negotiated with the kidnappers and paid ransom whose evidence could have laid to rest the uncertainty about the person been (sic) kidnapped and if any ransom was paid before she was released.”
Referring to and relying on the cases of Ogudu v. State (2012) All FWLR (Pt. 629) 1111 and Opeyemi v. State (1985) 2 NWLR (Pt. 5) 101, learned counsel for the appellant contended as follows: –
?We submit that if there is in existence a crucial or material point in issue and there is a witness whose evidence would unlock the logjam and resolve the impasse, one way or the other, that witness should and must be called. This is moreso a criminal trial involving kidnapping and the prosecution has the bounden duty to place all relevant evidence before the Court and by so doing establish all the essential ingredients of the offence with which an accused has been charged.?
Learned counsel submitted that the evidence of PW1 should be regarded as hearsay evidence because his duty was ?simply to take record of damage that has already been down (sic) without any knowledge about how the damage was done or who caused the damage.”
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Counsel contended that the best evidence in a criminal case against an accused person is that of the complainant. In support of this contention, the Court was referred to the case of Utteh v. The State (1999) 2 LRCN 1.
In respect of the appellant?s alleged confessional statement ? Exhibit ?C?, learned counsel argued that the Court should not have acted on it without first testing its truth. To buttress this argument, learned counsel referred the Court to the cases of Sunday v. State (2010) All FWLR (Pt. 548) 874 and Mbang v. The State (2011) All FWLR (Pt. 562) 1766.
In urging the Court to allow the appeal, learned counsel submitted that the trial Court failed to take into account the appellant?s defence that the money recovered from his house belonged to him and his wife.
In response, learned counsel for the respondent summarized the facts of the case, referred to numerous authorities and concluded that the prosecution proved its case beyond reasonable doubt, especially by circumstantial evidence.
?
The facts of the case are simple and straightforward. According to the prosecution, on or about the 30th day of
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August, 2009, the State Security Service, hereinafter referred to as ?the SSS?, got a report of the kidnapping of an old woman, called Theresa Basil Ijiebor, along Benin/Auchi Road, by a gang or group of four armed men. The victim was allegedly taken to an unknown destination. The alleged kidnappers demanded for a ransom of N20,000,000.00 (Twenty million naira) from the victim?s son, which ransom, through negotiation, was later reduced to N5, 000,000.00 (Five million naira). The ransom money was marked on the wrappers and the bag containing the money was bugged by the SSS. After the payment, the victim was released. The following day, the SSS executed a search warrant on the appellant?s house ?after the bug in the bag was tracked? to his house.
During the search of the appellant?s house, some of the marked money wrappers, the sum of N412,400.00 (Four Hundred and Twelve Thousand, Eight Hundred Naira) and a cut-to-size gun with five rounds of ammunition were recovered. Although the appellant was absent during the search on his house, his wife and children were present and the appellant?s wife signed the
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warrant as a witness. The appellant later went to the office of the SSS, whereby he was arrested and subsequently charged with the offence of kidnapping.
In its attempt to prove its case, the respondent called one witness ? Monobio Emmeya Figilo, who testified as PW1 and tendered Exhibits ?A?, ?B?, ?C? and ?D? under evidence-in-chief, and Exhibit ?F? under cross-examination by learned counsel for the appellant.
On his part, the appellant testified in his defence and called three witnesses. The appellant denied the charge of kidnapping. He claimed that the money recovered from his house was his wages as a welder.
In its judgment, the trial Court, after evaluating the evidence before it, held, inter alia, as follows: –
?I am therefore unable to believe the claim of the accused that he earned N412,800 (N478,000) with a PHCN contractor in Ashama village at the material time.
In Exhibit A, the accused had told the SSS that after ransom was paid on 3rd Sept. 2009, Collins came back to his house and gave him N400,000 as his own share of the money for keeping the woman and
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assisting him in bringing food and water for the victim. Exhibit A therefore corroborated the evidence of the 1st P.W that the N412, 800 he recovered in the house of the accused on 4/9/09 was part of the ransom.?
As stated earlier, learned counsel for the appellant argued, inter alia, as follows: –
?The respondent did not call the victim as a witness to prove to Court that she was truly kidnapped neither did they deem it necessary to also call the person whom they claimed negotiated with the kidnappers and paid the ransom whose evidence could have laid to rest the uncertainty about the person been kidnapped and if any ransom was paid before she was released.?
The above argument presupposes that the prosecution was under an obligation to call a particular number of witnesses, or the victim of the alleged crime as a witness, in order to prove the crime or offence. I think that the law is now settled that there is no burden on the prosecution to call a particular witness or a host of witnesses in a criminal trial in order to succeed.
In a criminal case, unless where the law provides otherwise, the Court can act on the
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evidence of a sole credible witness to conclude that a criminal accusation has been proved beyond reasonable doubt. See Yeboah v. The Queen (1953) 14 WACA 484; Alonge v. I.G.P. (1959) 4 FSC 203; Anthony Igbo v. The State (1975) 1 All NLR 70; Samuel Theophilus v. The State (1996) 1 NWLR (Pt. 423) 139; Martin Egbufor v. The State (2019) 5 NWLR (Pt. 1665) 260 and Chibuike Ofordike v. The State (2019) 5 NWLR (Pt. 1666) 395.
As a general rule, therefore, the prosecution has not only the privilege but also the prerogative to call such witness or witnesses it deems necessary to prove its case. See R.V. Adebanjo 2 WACA 315; Opayemi v. The State (1985) 2 NWLR (Pt. 5) 101 and Samuel Theop
