AKINLABI OLAOLUWA v. THE STATE
(2018)LCN/12239(CA)
In The Court of Appeal of Nigeria
On Thursday, the 6th day of December, 2018
CA/AK/194C/2016
RATIO
CRIMINAL LAW; THE OFFENCE OF CONSPIRACY
“They need not all have started the conspiracy, because, conspiracy started by some persons may be joined at a later stage or later stages by others. The gist of this offence of conspiracy is the meeting of the mind of the conspirators. This is hardly capable of direct proof. Hence conspiracy is a matter of inference from certain criminal acts of the parties concerned done in pursuance of an apparent criminal purpose in common between them and in proof of conspiracy the acts or omission of any of the conspirators in furtherance of the common design may be and very often given in evidence against any other or others of the conspirators.” PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
EVIDENCE: WHERE CONFESSIONAL STATEMENT IS MADE INVOLUNTARILY
“It is elementary in our criminal law and procedure that once objection is made to the admissibility of a confessional statement on the ground that it was involuntarily made, or otherwise, obtained in oppressive manner, the Court must stop further proceedings and determine the question of voluntariness of the confessional statement before taking any further step by way of admitting or rejecting the said statement. This procedure is called trial within trial. See Alarape v. State (2001) 2 SCNJ 162: Eke v. State (2011) All FWLR (Pt. 566) 430. In the case of Olabode v. State (2009) All FWLR (Pt. 500) 607. The Court held thus: ‘The test for the admissibility of a confessional statement is its voluntariness, and once the issue is raised, it must be resolved before its admission’.” PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
EVIDENCE: WAYS OF PROVING A CRIME
“Indeed, the case-law has sanctioned three ways of proving commission of a crime, i.e. (a) Eye witness evidence, (b) confessional evidence, or (c) circumstantial evidence. See FRN v. Barminas (2017) 15 NWLR (Pt. 1588) 177; Okiemute v. State (2016) 15 NWLR (Pt. 1535) 297; Maigari v. State (2013) 17 NWLR (Pt. 1384) 425. The three ways are not conjunctive but disjunctive. Proof of any one of them would suffice to ground a conviction. The Appellant’s confessional statement admitted as exhibit A clearly fixed the Appellant at the scene of the crime.” PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
INTERPRETATION: THE MEANING OF ‘KIDNAP.’
“By virtue of the provisions of Section 3 (1) (B) of the Anti-kidnapping and Anti-Abduction Law of Ondo State 2010, ‘kidnap’ means ‘the unlawful removal or exportation of a person from any place where he or she is to another place from the vicinity where he/she is found or the unlawful confinement of a person in any place without his/her consent’.” PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
JUSTICES
UZO IFEYINWA NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria
Between
AKINLABI OLAOLUWA Appellant(s)
AND
THE STATE Respondent(s)
MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment):
The Appellant alongside one other accused person were arraigned on a four count charge on 17/04/2013 by way of an information before the Ondo State High Court sitting at Akure with the following offences:
COUNT I
STATEMENT OF OFFENCE
Procuring or counselling another for the purpose of kidnapping contrary to Section 11 of the Anti-kidnapping and Anti-Abduction Law of Ondo State, 2010.
PARTICULARS OF OFFENCE
Akinlabi Olaoluwa, Mohammed Lateef and others now at large on or about 4th April, 2012 at Omifon in the Ore Judicial Division did give information for the purpose of kidnapping one Alhaja Temilade Adeyinka.
COUNT II
STATEMENT OF OFFENCE
Conspiracy to commit felony contrary to Section 516 of the Criminal Code Law, Cap 37, Vol. l, Laws of Ondo State of Nigeria, 2006.
PARTICULARS OF OFFENCE
Akinlabi Olaoluwa and Mohammed Lateef on or about 10th April, 2012 at Omifon in the Ore Judicial Division did conspire to commit felony to wit: kidnapping.
COUNT III
STATEMENT OF OFFENCE
Aiding and abetting kidnapping contrary to Section 5 (1) ?of the of the Anti-Kidnapping and Anti-Abduction Law of Ondo State, 2010.
PARTICULARS OF OFFENCE
Mohammed Lateef on or about 10th April, 2012 at Omifon in the Ore Judicial Division did aid the kidnapping of Alhaja Temilade Adeyinka.
COUNT IV
STATEMENT OF OFFENCE
Kidnapping, contrary to Section 3 (ii) (b) of the Anti-Kidnapping and Anti-Abduction Law of Ondo State, 2010.
PARTICULARS OF OFFENCE
Akinlabi Olaoluwa on or about 10th April, 2012 at Omifon in the Ore Judicial Division did kidnap one Alhaja Temilade Adeyinka.
On his arraignment before the trial Court, the 1st accused, herein the Appellant pleaded not guilty to all the charges preferred against him. The case proceeded to trial. The prosecution called four (4) witnesses and tendered six (6) exhibits, namely: A, B, B1, C1, C2 and D. The Appellant testified for himself and did not call any other witness.
SUMMARY OF FACTS
The Appellant was arraigned with one Mohammed Lateef before the Ondo State High Court sitting at Akure on four counts as stated above and they pleaded not guilty to the charge. They went to trial, wherein the prosecution called (4) witnesses and tendered six (6) exhibits to establish the case against the Appellant and his co-accused.
The Appellant testified for himself and called no other witness. At the end of the trial, the learned trial Judge convicted the Appellant of the offence of conspiracy to commit kidnapping and kidnapping in his judgment delivered on 9/12/2013.
Dissatisfied, the Appellant filed this appeal vide Notice of Appeal dated and filed on 8/5/2016 containing four (4) grounds of appeal.
In compliance with the extant rules of this Court, parties filed and exchanged Briefs of Argument.
Appellant’s Brief dated 21/2/2017 but filed on 27/2/2017 was settled by D. A. Awosika Esq., while the Respondent’s Brief dated and filed 7/11/2017, was settled by Adekola Olawoye Esq. (Attorney General and Commissioner for Justice, Ondo State). Both processes were deemed properly filed on 17/1/2018. All briefs of Argument were adopted at the hearing of the appeal on 24/10/2018 by parties respective Counsel.
The Appellant formulated the following three (3) issues for determination, thus:
(a) Was the learned trial Judge right in tentatively admitting Exhibit A during trial while the ruling on the admissibility of same deferred to judgment stage.
(b) Was the learned trial Judge right in convicting the Appellant of conspiracy to kidnap one Alhaja Temilade Adeyinka (PW1) having regard to the state of evidence adduced by the prosecution.
(c) Whether or not the learned trial Judge was right in convicting the Appellant for the kidnap of one Alhaja Temilade Adeyinka (PW1) having regard to the nature of evidence led by the prosecutions at trials.
The Respondent on his part formulated two (2) issues for resolution, thus:
1. Whether or not the trial Court rightly admitted Exhibit ‘A’ without ordering a trial within trial when the Appellant’s Counsel retracted his objection on the admissibility of Exhibit ‘A’.
2. Whether the prosecution proved the charge of conspiracy to commit felony and kidnapping beyond reasonable doubt against the Appellant.
The issues raised by respective Counsel are similar to each other. I shall resolve the appeal on the three issues raised by the Appellant, the owner of the appeal.
ARGUMENT
ISSUE 1
Arguing this issue, learned Appellant Counsel relied on Chianugo v. State (2002) 2 NWLR (Pt. 750) 225 to the effect that it is trite that the burden of proof of the commission of offence lies on the prosecution and that in doing so, the prosecution can rely on the confessional statement of the accused if same is admitted in evidence. He submitted that the appellant’s Counsel strongly objected to the admission of Exhibit ‘A’ (Appellants confessional statement) on the ground that the Appellant was not the maker but signed same under duress. But while the trial Court admitted same as Exhibit ‘A’, it deferred the ruling on the objection till judgment stage. Counsel argued that although the learned trial Judge delivered his ruling on the objection before delivering judgment, such procedure was wrong and unknown to law.
He submitted that since the issue of involuntariness was raised by the Appellant, the learned trial Judge was supposed to have conducted a trial within trial to determine the veracity or otherwise of the allegation. He contended that the deferment of the ruling on the admissibility of Exhibit A to judgment stage when the objection is on involuntariness of the Appellant’s signature on same occasioned miscarriage of justice to the Appellant. He urged that the said exhibit A be expunged from the record.
Reacting vide his issue 1, learned Respondent’s Counsel captured the proceedings at pages 77, lines 13 to 20; 78 lines 1 – 17 of the record of appeal to submit that when the objection of involuntariness was raised, the Court was disposed to conduct trial within trial but the Appellants Counsel withdrew the objection and urge the Court to admit same and decide what weight to be attached at the end of trial. Counsel relied on Oguno v. State (2013) 15 NWLR (Pt. 1376) 1 at 24 paragraphs D – E, to contend that, agreeing without conceding, that the procedure was irregular, the Appellant’s Counsel consented to it and cannot thereafter challenge same on appeal. Learned Counsel submitted that assuming that Exhibit A was wrongly admitted, that there are other pieces of evidence that fixed the Appellant with the commission of the offences charged.
He briefly captured the evidence of PW1 (victim) as to how she was called on phone severally with a threat that if her husband failed to give them N50M, that they will kill her and her son and that it was the same voice that she heard when she was abducted in the car that her abductors took her away which broke down along Odigbo road and was recovered and tendered in evidence as Exhibit D. He furthered that the confessional statement of the co-accused was admitted as Exhibit B without any objection and same gave a vivid picture of how the Appellant and the co accused together with others at large, conspired to kidnap PW1, and how PW1 was eventually kidnapped. He referred to page 79 lines 1 – 10 and pages 90 and 91 of the record of appeal. Furthering, counsel submitted that the Appellant admitted in his oral evidence before the Court that he was in the car (exhibit D) with which PW1 was kidnapped but that when the car stopped at PW1’s shop, he alighted and went to the other side of the road to urinate. That while urinating, he heard gunshot and suddenly he saw exhibit D moving away from PW1’s shop.
Therefore, Counsel submitted that the evidence of the Appellant before the Court, together with that of PW1, PW2, PW3, PW4 and Exhibit B, squarely fixed the Appellant with the commission of the offence charged even without exhibit A. He urged that this issue be resolved for the Respondent.
ISSUE 2
On this issue, Counsel reiterated that the prosecution bears the ultimate burden of proving the commission of offence charged and that the standard of proof is beyond reasonable doubt. He relied on Oforlete v. State (2000) FWLR (Pt. 12) 2081 at 2097 paras H 2098. He relied onOduneye v. State (2001) 2 NWLR (Pt. 697) 311, 324 – 325 to submit that conspiracy consist not merely in the intention but in the agreement of two or more persons to do an unlawful act.
He contended that the prosecution failed to establish that there was an agreement between the Appellant and any other person to commit the alleged offence, and there is no evidence to support the learned Judge’s finding of fact at pages 125 lines 6 – 11, convicting the Appellant for the offence of conspiracy. Counsel contended that from the said finding of fact at page 125, lines 6 – 11, the trial Judge based same on ‘Exhibits A and B’ – confessional statements of the Appellant and co-accused. He argued that while it is permissible to convict on the confessional statement of the accused, it is better to look for other pieces of evidence to corroborate same before relying on same to convict the accused. He maintained that the law is clear that a confession of one accused person cannot be used to convict another accused, unless that other accused has adopted the said co-accused confessional statement.
He furthered that since exhibit A was retracted, the prosecution has failed to prove that there was an agreement between the Appellant and any other person to do an illegal act by illegal means and that an illegal act has been done in furtherance of the agreement. He argued that it is confusing for the learned trial Judge to discharge and acquit the Appellant of the offences of procuring or counseling another to kidnap, and abetting the offence of kidnapping on the ground that the said Exhibits A and B are contradictory, and still employed same exhibits to convict the Appellant of conspiracy.
He reproduced the trial Court’s finding of fact at page 122 lines 15 – 24 and page 123 lines 1 – 12, to submit that there was no evidence that the Appellant conspired with any person to kidnap PW1. He urged that this issue be resolved for the Appellant.
On his issue 3, learned Counsel for the Appellant reproduced the definition of the word ‘Kidnap’ as contained in Section 2 of the Anti-kidnapping and Anti-Abduction Law of Ondo State 2010, to argue that for the prosecution to prove the offence of kidnapping against the Appellant, it must be proved beyond reasonable doubt that the Appellant was involved in the unlawful removal or exportation of PW1 from any place where she was and/or unlawful confinement of PW1 without her consent. He reviewed the Appellant’s evidence-in-chief at page 91 lines 1 – 18 to submit that the finding of fact by the learned trial Judge at page 125 lines 22 – 24 and page 126 lines 1 – 13 cannot be justified. He furthered that none of the prosecution witnesses saw the Appellant at the scene of crime nor was the Appellant arrested at the scene of crime.
He argued that the voice identification conducted by the police wherein PW1 and PW3 identified the Appellant cannot be relied on since PW1 and PW3 are not experts in voice identification. Counsel submitted that PW1 testified that the Appellant lives in the same vicinity with her but failed to mention the Appellant’s name to the police and no explanation was given for this omission. He again argued that the voice identification is illegal since the registered phone number with MTN used in calling PW1 and PW3 and the particulars from MTN through which the appellant was tracked and arrested were not tendered in evidence before the Court.
He pointed out that the owner of Exhibit D was not also disclosed to the Court, to submit that the law is clear that where a document that ought to be produced is not produced, that it raises a presumption that the document if produced would be against the person who withheld same. He relied on Aiguoreghian v. State (2004) 1 S.C. (Pt. 1) 65 at 79. He urged that the evidence on voice identification be discountenanced as the way and manner it was conducted is irregular and unknown to law. Counsel contended that exhibits C and C1 (the two Nokia phones tendered in evidence by the prosecution) in no way fixed the Appellant with the commission of the offence charged since no evidence was led linking the exhibits to the Appellant.
Furthering, counsel argued that PW4 (IPO) testified that when the house of the Appellant and co-accused were searched, nothing was found; and there was no particulars from MTN showing that the Appellant is the registered owner of the phone numbers in Exhibit C and C1 from which PW1 and PW3 received threat messages and calls prior to the kidnap incident. Counsel argued that failure of the prosecution to prove before the Court the owners of the phone number on the said exhibit C and C1 raised a doubt that must be resolved for the Appellant. He urged that all the Respondent’s evidence on exhibits C and C1 be discountenanced.
It is the submission of Counsel that Exhibit A was not properly admitted, same having been retracted. And that even if the admission of Exhibit A is regular, it is not safe to rely on same without other pieces of evidence to corroborate it to convict the Appellant. He called in aid Nwachukwu v. State (2002) 12 NWLR (Pt. 782) 543; Rabiu v. State (2010) 10 NWLR (Pt. 1210) 127 at 161 – 162.
He submitted that the Respondent led no other evidence outside exhibit A to shore up support for exhibit A to properly fix the Appellant with the commission of the offence of kidnapping PW1. He furthered that exhibit B – a confessional statement of co-accused cannot corroborate that of the Appellant. He relied on this Court’s decision on Gabriel v. State (2010) 6 NWLR (Pt. 1190) 280 at 334 para. G to the effect that evidence of one witness requiring corroboration cannot serve as corroboration of the evidence of another witness requiring corroboration. He concluded that the Respondent has not led any credible evidence to justify the trial Court’s conviction of the accused for the offence of kidnapping PW1 and urge us to so hold.
Reacting to the Appellant’s issues 1 and 2, vide his issue 2, the Respondent’s Counsel submitted that the offence of conspiracy can only be committed by two persons who agreed to do an unlawful act or a lawful act by an unlawful means. He furthered that when two persons agree, that the plot itself is an act and the act of each of the parties, promise against promise, actual contra actem capable of being enforced if lawful, punishable if a criminal act or for the use of criminal means. He relied on Oduneye v. State (2001) 1 SCNJ 20. He relied on Erim v. State (1994) 6 SCNJ 104 at 116 – 117; Bayo & Ors v. Inspector General of Police (1971) 1 NMLR 184, to submit that conspiracy can exist between persons who have never seen each other or corresponded with each other, but once the criminal design is common to all of them and there is an act on both sides upon which inference of conspiracy can be made.
He furthered that conspiracy is usually proved by inferences from circumstantial evidence. He referred to PW1 evidence at page 62 lines 14 – 20 and PW2’s evidence at page 63 lines 15 – 20, page 64 lines 1 – 4 to show that PW1 was indeed kidnapped by an armed gang of three men at her shop in Omifon along Ore-Ondo road on 14/4/2012. He pointed out that the testimony of PW4 was that the Appellant and co-accused willingly volunteered their statements after due caution; and signed same and he countersigned as the recorder.
He submitted that in Exhibit A, the Appellant detailed how himself and the co-accused hatched a plan to kidnap and how they met with Taofik, Godwin, Oyoyo and Muyideen at Taofik’s shop to strategies on how to kidnap PW1.
He furthered that in Exhibit B, the co-accused also mentioned the Appellant, Taofik and Oyoyo as members of his gang that conspired and kidnapped PW1. Counsel reviewed the oral testimony of the Appellant, to the effect that he, (the Appellant) went with Muyideen, Godwin and another person to PW1’s shop because Muyideen wanted to see PW1 and that as they got to PW1’s place, he alighted and went to urinate and suddenly there were gun shots and he started to run only to see the vehicle that they came with moving towards the main road. He then submitted that the offence of conspiracy can be inferred from the evidence of PW1, PW2, PW4, Exhibits A, and B and part of the Appellant’s oral evidence before the Court that the Appellant conspired with the co-accused and others now at large to kidnap PW1.
On the offence of kidnapping of PW1, Counsel submitted that the evidence of PW1, PW2, PW3, PW4, Exhibits A, B and D show that the Appellant was a member of the gang that kidnapped PW1 in the night of 10/4/2012 at her shop at Omifon. For instance, said Counsel, PW2 and PW3 corroborated the evidence of PW1 that she was, on 10/4/2012 at night, kidnapped by an armed gang who shot sporadically into the air, bundled her into their car and used her hair tie to cover her face and drove her away. Counsel further reviewed the evidence of PW1 to submit that same was corroborated by the evidence of PW2, PW3 and PW4 and that the said pieces of evidence were not discredit under cross examination. He furthered that Exhibit A can be relied on since the Appellant retracted his earlier objection to its admissibility and the trial Court’s ruling that same is admissible.
He then submitted that in Exhibit A the Appellant detailed how he and the second accused hatched a plan to kidnap PW1 and how they conspired with Taofik, Godwin, Oyoyo and Muyideen at Taofik’s shop to commit the offence. Also, said Counsel, in Exhibit A, the Appellant gave graphic details of how himself, Taofik, Godwin and Oyoyo drove Exhibit D to PW1’s shop at about half past nine at night and kidnapped PW1. All these pieces of evidence, Counsel submitted, corroborated the evidence of PW1, PW2, PW3 and PW4. Counsel further submitted that under cross-examination, the Appellant identified Exhibit ‘D’ as the vehicle that he boarded with three others to PW1’s shop at Omifon on 10/4/2012.
Counsel submitted that after the kidnap incident, that her abductors incessantly called her on phone demanding for N50 million and she was able to recognize and identify the voices of the Appellant and 2nd accused out of six voices she listened to, that were interrogated by the police and when the police brought them before her, they turned out to be people she knew in Omifon town. Counsel furthered that in exhibit B, 2nd accused confessional statement, the 2nd accused vividly described how he with the Appellant and Taofik, Oyoyo and others at large conspired on how to kidnap PW1 and that the Appellant was part of the gang that kidnapped PW1.
He contended that from the evidence of PW1, PW2, PW3 and PW4, Exhibits A and B and the oral evidence of the Appellant linking him with exhibit D, the case of conspiracy to commit felony and kidnapping of PW1 has been proved beyond reasonable doubt. Learned Counsel argued that the submission of learned Appellant’s Counsel that the trial Judge was wrong to have discharged and acquitted the Appellant of the offence of counselling or procuring another to kidnap and aiding and abetting the offence of kidnapping on the bases of exhibits A and B; and at the same time use the same exhibits A and B to convict the Appellant for the offence of conspiracy is misconceived.
In any case, said Counsel, the offence of conspiracy under the criminal code is not the same as the offence of procuring or counseling another to kidnap and aiding and abetting kidnapping under the Anti-kidnapping and Anti-Abduction Laws of Ondo State 2010 are quite different in terms of ingredient of proving the offence.
He argued further that the learned trial Judge held that the Respondent failed to prove the ingredients of procuring or counseling another to Kidnap and Aiding and Abetting Kidnapping and therefore discharged and acquitted the Appellant on that count. Counsel furthered that there was no need for voice identification expert since it is in evidence that the Appellant and 2nd accused was kept somewhere and separated by a wall and PW1 who was called severally was able to identify the voice of the Appellant and the 2nd accused out of the six persons PW1 listened to their voices and it was then that the Appellant and ‘2nd accused were brought out before PW1 and PW3 and they turned out to be persons PW1 and PW3 knew in Omifon town. It was the submission of Counsel that the trial Court did not convict the Appellant on Exhibits A and B alone, but relied on other pieces of evidence such as that of PW1, PW2, PW3 and PW4, Exhibit D and oral evidence of the Appellant linking him with Exhibit D.
Finally, Counsel called in aid the case of Taofeek Adeleke v. State (2014) ALL FWLR (Pt. 722) 1552 at 1674 paras F – H to submit that where there is a link or means from the statement of a co-accused or his extra judicial statement with other evidence as in this case, it is admissible against other accused persons, as such situation constitute an exception to the general rule that evidence of an accused person cannot be used against a co-accused unless such co-accused has admitted that pieces of evidence.
RESOLUTION
ISSUE 1
It is elementary in our criminal law and procedure that once objection is made to the admissibility of a confessional statement on the ground that it was involuntarily made, or otherwise, obtained in oppressive manner, the Court must stop further proceedings and determine the question of voluntariness of the confessional statement before taking any further step by way of admitting or rejecting the said statement. This procedure is called trial within trial. See Alarape v. State (2001) 2 SCNJ 162: Eke v. State (2011) All FWLR (Pt. 566) 430.
In the case of Olabode v. State (2009) All FWLR (Pt. 500) 607. The Court held thus:
“The test for the admissibility of a confessional statement is its voluntariness, and once the issue is raised, it must be resolved before its admission”.
The crux of the Appellant’s grouse on this issue is that at the point Exhibit A was about to be tendered in evidence, that the Appellant raised an objection on the ground that he signed the said English version of his confessional statement under duress and without same first read to him after it was translated from Yoruba language to English language.
The objection in question is domiciled at pages 77 to 78 of the record of appeal and it is pertinent, for ease of appreciation, to reproduce same here, thus:
“I can recognise the statement of the 1st accused and the attestation form. I will be able to recognise it. Counsel seeks to tender the statement of the 1st accused and the attestation form as an exhibit. At this stage Mr. Atima K. A. announces his appearance as leading Mr. Ashidi for the accused persons.
Mr. Atima:- I am objecting on the following ground.
1. My client said he made and wrote his statement in Yoruba Language and signed it. That statement sought to be tendered was made in English language without read to him. That he was forced to sign the statement sought to be tendered now. That it is true that he made his statement himself in Yoruba language and signed same. The 2nd day the police called him out from cell to come and sign another statement and when he queried why. The police said the statement had been interpreted into English and should come and sign the interpreted English version. That Yoruba language is not the language of the Court.
Mrs Ogundadegbe: The 1st accused admitted signing the statement. He did not raise the issue of involuntariness and he did not tell the Court how he was forced. i.e. their degree of force used on him. Urge the Court to admit the document.
Mr Atima:- The Court can admit the statement and decide what weight to be attached to the statement at the end to trial.
Urge the Court to admit it in evidence.
Court: – The statement of the 1st accused ‘ Akinlabi Olaoluwa dated 26/4/2012 is tentatively admitted as exhibit A subject to a ruling on it in the course of judgment’.
A dispassionate appraisal of the excerpt reproduced above will clearly show that while the Appellant’s Counsel Mr. Atima raised the objection and the Respondent’s Counsel Mrs. Ogundadegbe responded, the same Appellant’s Counsel, Mr. Atima, ostensibly submitting to the Respondent’s Counsel’s argument, withdrew his objection and urged the Court to admit the said statement and decide what weight to be attached to same at the end of trial. It is trite in law that admissibility of a document is one thing, while the weight to be attached during evaluation is a different kettle of fish. See: Udeze v. Chidebe & Ors (1990) 1 NWLR (Pt. 25) 141 at 160; Uchenna Nwachukwu v. State (2002) 7 SCNJ 230.
Therefore, the Appellant having consented that the said confessional statement be admitted in evidence, should not not be heard to complain that trial within trial was not conducted by learned trial Judge. It must be borne in mind that each case has its peculiarities which as a matter of fact, interplays in arriving at its decision. The Appellant cannot approbate and reprobate at the same time. Since the learned Counsel for the Appellant withdrew his objection there and then urging the trial Court to admit the said confessional statement, the trial Court should have admitted the said statement without a condition attached. In any case, the trial Court decided to err on the side of caution admitting the statement tentatively. It is my humble view that the ruling on the objection at pages 119 – 120 of the record of appeal, by the learned trial judge was a surplussage. This issue is resolved against the Appellant.
ISSUE 2.
It is unarguable in law that proof beyond reasonable doubt does not mean proof beyond all shadows of doubt or all iota of doubt. All that is required is proof that will reasonably establish the guilt of the accused person with compelling and conclusive evidence. See:Adewale Joseph v. State (2011) 6 SCNJ 222; Rabi Ismail v. State (2011) 7 SCNJ 102; Adebayo v. State (2008) 6 ACLR 372 at 395; and State v. Akpabio (1993) 4 NWLR (Pt. 286) 204 at 224. For the offence of conspiracy to be established, it must be proved beyond reasonable doubt that the accused agree with another person to prosecute an unlawful purpose or lawful purpose in an unlawful way. The apex Court had occasion to expatiate on the offence of conspiracy in the case of Njoven & Ors v. State (2004) 1 CAC 255 at 257, when it held as follows:
“It is not necessary to prove that the conspirators like those who murdered Julius Caeser, was seen together coming out of the same place at the same time, and indeed conspirators need not know each other”.
They need not all have started the conspiracy, because, conspiracy started by some persons may be joined at a later stage or later stages by others. The gist of this offence of conspiracy is the meeting of the mind of the conspirators.
This is hardly capable of direct proof. Hence conspiracy is a matter of inference from certain criminal acts of the parties concerned done in pursuance of an apparent criminal purpose in common between them and in proof of conspiracy the acts or omission of any of the conspirators in furtherance of the common design may be and very often given in evidence against any other or others of the conspirators.
To be deciphered from the above, inter alia, is the fact that all conspirators need not start off at the same time and place, since a conspiracy already started may be joined at a later stage and the fact that conspirators dissuaded or abandoned the completion of unlawful purpose half way are of no moment as to the existence of the offence of conspiracy.
I have held earlier on in this judgment, precisely while resolving issue 1 that the extra judicial statement of the Appellant was rightly admitted as Exhibit A. On its admission in evidence, exhibit A transformed into the evidence of the Respondent. The count of conspiracy which the Appellant seeks to impugn is still being hunted by the far-reaching consequences of the evidential transfiguration of Exhibit A. It is decipherable from the Appellants confessions in Exhibit A that there was clear agreement between the Appellant and co-confederates, i.e. 2nd accused, Taofik, Godwin, Oyoyo and Muyideen who are still at large, that they had an agreement to kidnap PW1. Their consensus ad idem was apparent in exhibit A.
It is pertinent to point out that although the Appellant set up a different story in his evidence before the Court, the name of Godwin and Muyideen kept re-occurring as persons with whom the Appellant went to PW1’s shop on that eventful day that PW1 was kidnapped. On this note the trial Court?s finding on the proof of the Count of conspiracy is unimpeachable. I also resolve this issue against the Appellant.
ISSUE 3
As a preliminary, it is pertinent to appreciate the import and features of the substantive offence, kidnapping, which was preferred against the Appellant. By virtue of the provisions of Section 3 (1) (B) of the Anti-kidnapping and Anti-Abduction Law of Ondo State 2010, ‘kidnap’ means ‘the unlawful removal or exportation of a person from any place where he or she is to another place from the vicinity where he/she is found or the unlawful confinement of a person in any place without his/her consent’.
Therefore, to secure a conviction for the offence of kidnapping, the prosecution, herein the Respondent, is required by law to prove beyond reasonable doubt that a person was unlawfully removed or exported from where he was to another place and/or unlawfully confined to a place without the persons consent. In the instant case, parties are in agreement that PW1 was kidnapped.
One of the Appellant’s grouses in this appeal is that none of the Respondent’s witnesses testified that he saw the Appellant at the scene of crime. There is no law requiring that an accused must be seen at the scene of crime before such accused can be fixed with the commission of the crime. Indeed, the case-law has sanctioned three ways of proving commission of a crime, i.e. (a) Eye witness evidence, (b) confessional evidence, or (c) circumstantial evidence. See FRN v. Barminas (2017) 15 NWLR (Pt. 1588) 177; Okiemute v. State (2016) 15 NWLR (Pt. 1535) 297; Maigari v. State (2013) 17 NWLR (Pt. 1384) 425. The three ways are not conjunctive but disjunctive. Proof of any one of them would suffice to ground a conviction. The Appellant’s confessional statement admitted as exhibit A clearly fixed the Appellant at the scene of the crime.
It is worthy of note too that although the Appellant in his oral evidence before the Court denied part of his evidence in exhibit A, the Appellant still conceded that he was at the scene of the crime that eventful night of 10/4/2012 and that they drove to PW1’s shop in exhibit D. So, the issue of whether or not Respondent’s witnesses saw him at the scene of crime is of no moment since the Appellant by his own evidence fixed himself at the scene of crime.
Another grouse of the Appellant against the trial Court’s decision was that the voice identification was not properly done. In the circumstances of this case, PW1 and PW3 are in the best position to identify the voices that called them and not a voice expert that has not been called and thereby not in a position to compare the voice he (the expert) heard with that of the suspect. It was uncontroverted evidence that PW1 and PW3 did not have the opportunity of seeing the Appellant and 2nd accused person until after PW1 and PW3 identified their voices out of six peoples voices from the next room. And that it was after identifying their voices that the Appellant and 2nd accused were brought before PW1 and PW3 and they turned out to be people they know. Voice identification in the circumstances of this case does not call for voice expert. Since the voice was not recorded. The Appellant also quarreled with the fact that the Respondent neither mentioned the name or called as a witness the police officer who conducted search with MTN Communication Ltd. The law is well settled that the prosecution is at liberty to choose which witness to call and which evidence to tender.
In any case, exhibit A, B and D, together with the evidence of PW1, PW2, and PW3 and the Appellant’s oral evidence in Court clearly fixed the Appellant with commission of the said offence and thereby dispense with the need for voice identification. In other words, the voice identification conducted was properly done although it was not necessary. It also amounted to surplussage. Further the oral evidence of the Appellant clearly linked him to exhibit D which was used to kidnap PW1.
As a matter of fact, exhibits A & B was emphatic that the Appellant, 2nd accused and other gang members still at large made phone calls to PW1 and PW3 demanding certain sum of money, else the Appellant and other gang members will kill PW1 and some children in PW3 group of schools. There were enough evidence in exhibit A, B, D, PW1, PW2, PW3, PW4 and the Appellant’s oral evidence before the Court to ground the Appellant’s conviction without voice identification. The voice identification only corroborated other pieces of evidence in this matter. In the light of the above, this issue is also resolved against the Appellant.
On the whole, having resolved the three issues in this appeal against the Appellant, the appeal lacks merit and is accordingly dismissed. The conviction and sentence imposed on the Appellant by the High Court of Ondo State sitting in Akure in Charge No. AK/8C/2012, in the judgment delivered on 19/12/2013 are hereby affirmed.
UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the lead judgment just delivered by my learned brother Mohammed Ambi-Usi Danjuma, JCA. I am in total agreement that a trial Court can convict an accused on his confessional statement.
“A free and voluntary confession, which is direct and positive and properly proved, is sufficient to sustain a conviction without any corroborative evidence, so long as the Court is satisfied with its truth. There is however a duty on the Court to test the truth of a confession by examining it in the light of the other credible evidence.”
Solola v. State (2005) 11 NWLR (PT. 937) PG. 460, Nwaeze v. State (1996) 2 NWLR (PT. 428) PG. 1, Akinmoju v. State (2000) 4 SC (PT. 1) PG. 64.
With this and the more detailed reasoning in the lead judgment, I also dismiss this appeal. I abide by all the orders contained therein and adopt them as mine.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: I read before now the judgment just delivered by my learned brother Mohammed Ambi-Usi Danjuma, JCA. I am in complete agreement with him that the appeal lacks merit and should be dismissed. However, I will like to say a few words by way of emphasis. Conspiracy has been defined as an agreement between two or more persons to do an illegal act or legal act by illegal means or cause that act to be done. The actual agreement is enough to establish the offence and it is not necessary to prove that the act has in fact been committed.
The modes of forming conspiracy has been identified by the Supreme Court per Rhodes- Vivour in Simon v. State (2017) 8 NWLR (pt. 1566) 119 where it held thus:
“Conspiracy may be formed in one of the following ways: (a) the conspirators may all directly communicate with each other at a particular place and time and enter into an agreement with a common design. (b) There may be one person who is the hub around whom the others revolve like the centre of a circle and the circumference. (c) A person may communicate with A and A with B who in turn communicate with another, and so on.
This is what is called “chain” conspiracy. The conspiracy was apparent in the Appellant’s confessional statement Exhibit A. He has stated clearly how he and the co-accused agreed to kidnap PW1, although the Appellant set up a different story in his evidence before the Court. The fact that an accused person’s evidence in Court contradicts his extra judicial confessional statement does not preclude the Court from convicting the accused on the basis of the confessional statement once the confession has been found to be voluntary, positive and true.
For this and more reasons contained in the leading judgment of my learned brother Danjuma, JCA, I too find no merit in the appeal and it is accordingly dismissed by me.
Appearances:
D. A. Awosika, Esq. For Appellant(s)
Adekola Olawoye, Esq. For Respondent(s)
