AKPOJIVI v. STATE
(2022)LCN/16165(CA)
In The Court Of Appeal
(ASABA JUDICIAL DIVISION)
On Friday, May 20, 2022
CA/AS/514C/2018
Before Our Lordships:
Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal
Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Between
AGUSTINE AKPOJIVI APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
DEFINITION OF “CONSPIRACY”
The elements of these offences are;
Conspiracy; is defined as a secret plan by a group of people to do something harmful or illegal’’ see MOHAMMED V STATE,(2011) LPELR -12444(CA), KAYODE V STATE 2016 LPELR -40028 (SC) also means an agreement between two or more persons to do an unlawful act.’’ PER OBASEKI-ADEJUMO, J.C.A
DEFINITION OF THE OFFENCE OF “KIDNAPPING”
While Kidnap/kidnapping means to seize and take away a person by force or fraud, with or without a demand for ransom. See UMOH V STATE, RAPHEL EWUGBA V THE STATE (2017) LPELR-43833 (SC). The apex Court held that when a person is detained unlawfully, the offence of kidnapping is established.
EBENEZER V STATE (2014) LPLER -23791(CA) Where the elements of conspiracy to kidnap were stated as; .A) Intention to kidnap B) Manifestation of the intention by overt act C) Inability to fulfil his intention. PER OBASEKI-ADEJUMO, J.C.A
INGREDIENTS OF THE OFFENCE OF KIDNAPPING
The ingredients of the offence of kidnapping as stated in BELLO OKASHETU V THE STATE (2016) LPELR- 40611(SC) TO BE
In order 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 victim was taken away without/against his consent.
iii) That the victim was taken away without lawful excuse.
iv) 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 ALLER 137. AKHILOMEN V THE STATE (2017) LPELR-42668(CA).
There are 4 counts against the appellant along with three others for the earlier mentioned offences. PER OBASEKI-ADEJUMO, J.C.A
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This appeal stems from the decision of OMOVIE M. O., J of the Delta State High Court, ASABA Judicial Division DELIVERED ON 26th April 2016. wherein the lower Court in its judgment convicted the and sentenced to death by hanging, having been found guilty and convicted for the offences of conspiracy to kidnap, kidnapping, stealing, demanding property with menace and illegal possession of firearms.
FACTS
The appellant along with other accused persons were arraigned on the 17th day of November 2014 on a six count charge of conspiracy to kidnap, kidnapping, stealing illegal possession of firearms and demanding property with menace. It was alleged that the appellant, the 1st accused person and other persons, while armed with gun, kidnapped RUFUS UZOMAN AILWELL (M) AND ATOYEBI RAPHEL TOYIN 10th day of August 2013 and the 16th day of September 2013 respectively. Appellant pleaded not guilty to the six-count charge against the appellant. Prosecution called pw1-pw3 and tendered the statements of the 5 accused persons, guns, phones recovered from the accused persons. The defence denied all allegations but was convicted by the lower Court.
The appellant dissatisfied by the decision appealed via a notice of appeal filed on 20/7/2016 on two grounds.
Sequel to the rules of the Court of appeal the parties filed and exchanged briefs; the appellant filed his brief on 1/12/21 settled by V.O EZE ESQ, ESE E. EVBIEIERHURHOMA ESQ. OF AYO ASALA (SAN) & ASSOCIATES. Wherein he distilled a sole issue foe determination thus;
WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT IN HOLDING THAT THE PROSECUTION PROVED THE CHARGES OF CONSPIRACY TO KIDNAP, KIDNAPPING, STEALING, ILLEGAL POSSESSION OF FIREARMS AND DEMANDING WITH MENACES AGAINST THE APPELLANT BEYOND REASONABLE DOUBT.
On the other hand, the respondent filed its brief on 19/1/2022 settled by OMAMUZO EREBE AG. SOLICTOR GENERAL PERMANENT SECRETARY MINISTRY OF JUSTICE ASABA
WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT WHEN HE HELD THAT THE PROSECUTING PROVED THE OFFENSES OF CONSPIRACY TO KIDNAP., KIDNAPPING, STEALING, ILLEGAL POSSESSION OF FIREARMS AND DEMANDING PROPERTY WITH MENACES AGAINST THE APPELLANT BEYOND REASONABLE DOUBT.
ARGUMENTS OF APPEALLANT
The appellant submits that from the totality of evidence led before the Court the prosecution failed to establish beyond reasonable doubt that the appellant was one of the persons, that kidnapped and robbed doubt the appellant was one of the persons that kidnapped and robbed PW2 AND PW3 but failed to adduce credible evidence to prove that the appellant was one of those that committed the offences of kidnapping, stealing illegal possession of firearms and demanding with menaces
That the issue at trial is whether the appellant was properly identified as one of the assailants that kidnapped PW1 and pw2. That the four conditions for proof of kidnap
That the victim was seized, taken or carried away by the accused.
That the victim was taken away without his consent
That the victim was taken away without lawful excuse
That the victim was unlawfully imprisoned.
Appellant contended that the pw3 was the investigating officer attached to state security service and testified on his job and tendered exhibit B, that the pw1 and pw2 are victims kidnapped at different location.
Appellant contended that the conviction was based on exhibit B which was not tested as laid down in DAWA V STATE (1980) 8-11 SC 236, JAFIYA KOPA V THE STATE 1971 7 NSCC 166
He contended that evidence of PW3 cannot be corroboration for the statement, he was not present during the act complained of, he urged that the conviction be set aside.
Appellant complained of improper evaluation by the trial Court by relying on the evidence of p2 & pw3 to convicting the appellant at page 235 of the record.
That the testimonies of pw2 & pw3 cannot be relied upon as corroborative evidence to sustain the charges of all the accused persons. He posit that after rejecting the evidence of the pw2 & 3 as corroborative evidence to turn around in the same judgment to rely on the same evidence to corroborate the contents of exhibit B, he relied on DANIELS V STATE 1991 8 NWLR (PT 212) 715 AT 732
Finally, he submitted that when two or more persons are charged with the commission of an offence and evidence against the accused persons is similar to the extent that evidence is inextricably woven around all the accused persons, the discharge of one must be as a matter of law affect the discharge of others in the light that the evidence against all accused person is tied tried together. See KALU V STATE (1988)1 NWLR (PT 90) 503 ADELE V STATE (1995) 2 NWLR (PT 377) 269.
RESPONDENT’S ARGUMENTS
The Respondent submitted that the lower Court was correct in that the standard of proof required in a criminal prosecution is that of proof beyond reasonable doubt. In Section 135(1) of Evidence 2011 he relied on DIBIE V STATE (2004 14 NWLR (PT 893), ALARAPE V STATE (2001) 84 LRCN 600 OSETOLA V STATE (2012) 7 NWLR (PT 1329) 251 OF 278. That it is important that corroborative evidence outside the confession must exist before the accused is convicted on his confession alone.
The respondent cited, DAGAYYA V STATE (2006) 1 SCNJ AT 251 EZIGBO V THE STATE (2012) 6SC (PT 1) 163. He referred to exhibit C and the contents were vivid descriptions of the extent of involvement of the appellant and his accomplice, where he confessed to be part of the two operations. Respondent’s counsel further referred to the prosecution case wherein PW3 testified on his investigation of the kidnap case leading to the arrest of the appellant and his cohort and rescue of the kidnap victims in the forest That the appellant was the driver assigned to pick up the victim and he stage-managed his own kidnap and upon interrogation owned up to the knowledge of the operations.
Most importantly that the appellant was arrested with a small bag containing the locally cut-to-size pistol, he was among the arrested party that led the pw3 to the forest where Mr. Atoyebi was rescued. That this evidence was not challenged or contradicted during cross-examination and therefore by law this evidence is to be believed as the truth he cited OLUDAMILOLA V STATE (2010) 2-3 SC (PT 111) 94
Respondent submits that the act of leading the operative to where the kidnapped victim was kept proved the involvement of the Appellant and where the victims were kept which is a fact outside the record. That pw2 also testified that upon taking off the blind fold he saw pw2 immediately, which again is a fact outside the statement Respondent counsel submitted that 1st accused was arrested by military officers while the appellant was arrested by PW3 and his colleagues in the state security service officers and the 2nd and 3rd accused led the pw3 and his colleagues to where the other Victim was kept. He posit that this was also unchallenged and made probable, unlike the 1st accused who was not in the forest, that this distinguished his case which made his case different and resulted in his discharge. He submitted that the cases cited by the appellant KALU VSTATE (1988)1 NWLR (Pt 90) 503 and Adele v State (1995) NWLR (Pt 377) 269 are distinguishable and therefore inapplicable to the facts of the case. The Respondent disagreed that evidence of 1st accused and the Appellant are inextricable interwoven.
Finally, Solicitor General Respondent Counsel urged that the appeal be dismissed.
RESOLUTION
The Respondent adopted the issue formulated by the appellant and I shall resolve same along this line.
The charges were conspiracy to kidnap, kidnapping, stealing illegal possession of firearms and demanding with menaces against the Appellant.
I shall reproduce the charges and counts against the Appellant;
1. Conspiracy to commit felony to wit: Kidnapping, punishable under Section 516 of the Criminal Code Law, Cap C21 Vol. 1 Laws of Delta State 2006.
2. Kidnapping punishable under Section 4 (1) of the Delta State Anti-kidnapping and Anti-terrorism Law, No. 8 2013.
3. Kidnapping punishable under Section 4 (1) of the Delta State Anti-kidnapping and Anti-terrorism Laws, No.8 2013.
4. Demanding with menace punishable under Section 406 of the Criminal Code Law, Cap C21, Vol. I laws of Delta State, 2006.
5. Stealing punishable under Section 390(9) of the Criminal Code Law, Cap C 21, Vol. 1 Laws of Delta State, 2006.
6. Illegal possession of firearm punishable under Section 3 (1) of the Robbery and Firearms (Special Provisions) Act Cap R II Vol. 14, Laws of the Federation of Nigeria, 2004
The elements of these offences are;
Conspiracy; is defined as a secret plan by a group of people to do something harmful or illegal’’ see MOHAMMED V STATE,(2011) LPELR -12444(CA), KAYODE V STATE 2016 LPELR -40028 (SC) also means an agreement between two or more persons to do an unlawful act.’’
While Kidnap/kidnapping means to seize and take away a person by force or fraud, with or without a demand for ransom. See UMOH V STATE, RAPHEL EWUGBA V THE STATE (2017) LPELR-43833 (SC). The apex Court held that when a person is detained unlawfully, the offence of kidnapping is established.
EBENEZER V STATE (2014) LPLER -23791(CA) Where the elements of conspiracy to kidnap were stated as; .A) Intention to kidnap B) Manifestation of the intention by overt act C) Inability to fulfil his intention.
The ingredients of the offence of kidnapping as stated in BELLO OKASHETU V THE STATE (2016) LPELR- 40611(SC) TO BE
In order 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 victim was taken away without/against his consent.
iii) That the victim was taken away without lawful excuse.
iv) 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 ALLER 137. AKHILOMEN V THE STATE (2017) LPELR-42668(CA).
There are 4 counts against the appellant along with three others for the earlier mentioned offences.
Pw 1 had testified on his kidnap while the pw2 another kidnap victim ATOYEBI RAPHEL TOYIN A civil servant testified about his ordeal and works at the Warri refinery and petrochemical company a subsidiary of NNPC. He identified 2 people among the 5 accused persons. The 2nd who is the appellant herein and the 3rd accused person who is a driver where he works.
He stated that after hearing shots and was rescued he removed the blindfold and saw 3 policemen with gun and one of the kidnapper with the policemen that is the 2nd accused person with the policemen. The ……….in the evening it was there that the same man that wore orange cloth the 2nd accused person gave me my car key and said my car was parked at Osubi before Army check point‘’
Under cross-examination, he maintained his evidence, that it was the SSS that came to rescue me. PW3 testified he is a State Security Officer, Richard Kalu, he investigated the incidents of kidnap in the area. He arrested Agustine Akpoyivi as a result of the confession of the Driver James Dawel to pw1, He was arrested on 17/9/13 upon the confession of James Dewel with a bag containing a locally made cut-to-size pistol and tendered his statement exhibit B & B1 and gun found on him admitted as Exhibit G. The evidence of exhibit G clearly implicates the appellant a look at the content makes it a confessional statement because the appellant admitted the offence.
When Exhibit B is examined against the background of the evidence of pw1, PW3 and the other statements of accused 1st accused, 3rd accused it confirms the incident and the role each accused played bearing in mind that the statements were written separately. Statement of James Dawel who was the driver who organized the kidnap of the pw1, he gave a chronological account of the kidnap and those involved the appellant was named and the role he played. It is an external corroboration of the activities involving the gun the Pw2 said he saw him for the first time with the security men who came to rescue him as those involved in the kidnap and he also gave him the keys to his car and described the location, it ties to the evidence that the car was driven away to the bush when he was pushed out, the query is how did the key come to be with him and the location of the car? There was no explanation by the appellant to whom burden has shifted.
Now the statement of appellant exhibit B AT page 63-64 it states the events and level of agreement and arrangement of all the accused persons in the kidnap of both Pw1 and Pw2, and it is the corroborated by statement of James Dewel.
The appellant denied everything even the fact that he was arrested by the PW3 with a bag containing a gun. Also that he partook in the kidnap of pw1 when put against his confessional statement, and that of James Dell; 1st accused and 3rd accused it is part of his evidence that the gun was given to the appellant to return to the place It was collected from one ‘’two million’’ this has corroborated the evidence and confirmed that it was not fabricated, the lower Court tested the statement with the six keys and found it to be a confessional statement that was corroborated. See OSETOLA V STATE SUPRA this has proved count 3.
I have read the statement of James and the evaluation of the lower Court and I find that the was confirmation see Osetola v State supra, together with the evidence of PW3 AT PAGE 146-147 this was not challenged and amounts to circumstantial evidence and confirmed by both exhibit B & C and strengthens the offence and participation of conspiracy of the appellant with others especially James Dawell to kidnap and kidnap together with gun possession and he was part of the team that led the officers to where the victims were kept. The appellant and James Dawel were arrested by the officers of SSS and Pw3‘s report was his testimony which tallies with all the evidence in the statement together with the evidence of the victim though none of them saw him at the scene but he was the hand behind the scene, besides the possession of the gun puts him squarely in the picture. This situation was different from that of the 1st accused person who was arrested by the military and there was no evidence of the arresting officer to confirm the statement though he was not found at the scene of the kidnap neither did any of the victims mention him therefore the burden of proof in his case vary and differs and was not discharged hence he was discharged, it cannot absolve the appellant.
The lower Court in pages 232-234 of the record applied the test on the statement of appellant and James which were confessional statements as set out in DAWA V STATE SUPRA, the recovery of G from the appellant by pw3 who arrested him heavily corroborates the statement and the truthfulness is seen when put against the exhibit C and evidence of Pw3 and pw2 proves same as true and consistent with other facts herein. The association of other accused and sharing of the ransom of N2m makes the opportunity of committing the offence he was in company of James Dawell who works in pw2’s office, they knew each other. Definitely, the victims’ evidence (pw1 & pw2) where applicable served as corroboration of appellant’s involvement in conspiracy to kidnap, kidnap possession of a gun, demanding menacingly with weapon and the offence of stealing which is the ransom of N2Million collected for the release of Pw1.
Proof herein is beyond reasonable doubt which can be by circumstantial and/or direct evidence as it has been done here.
The appeal lacks merit and is dismissed. The judgment of Omovie J is affirmed, and conviction and sentence upheld.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: My learned brother, ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA availed me the benefit of reading in draft, the lead judgment in this appeal; and I concur that there was evidence sufficient to corroborate the confessional statement of the Accused Appellant at the trial.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I had the privilege of reading in the draft of the lead judgment of my learned brother, A.O. OBASEKI-ADEJUMO, JCA, in this appeal. I am in agreement with the reasoning and conclusion therein that there is no merit in the appeal. I too dismiss the appeal.
Appearances:
J.A. David, For Appellant(s)
Oghenefega T. Ipheghe, For Respondent(s)
