AKUDO ALOZIE v. THE STATE
(2018)LCN/10588(CA)
In The Court of Appeal of Nigeria
On Friday, the 6th day of July, 2018
CA/OW/418C/2014
RATIO
WHETHER THE MERE FAILURE OF A WITNESS TO REPORT THE COMMISSION OF A CRIME OR REASONABLE SUSPICION OF THE COMMISSION OF A CRIME WILL IPSO FACTO MAKE THE WITNESS AN ACCOMPLICE TO THE COMMISSION OF THE CRIME
It is the civic duty and/or responsibility of every citizen of this country to report the commission of an offence or reasonable suspicion of the commission of an offence to the police and/or other security agencies. This duty and/or responsibility is more expressed in Section 12 of the Criminal Procedure Act, 1945, where private individuals in some specific circumstances are given the power to arrest offenders or persons who they reasonably believed had committed an offence. Thus, I am of the firm viewpoint that if every citizen discharges this duty reasonably and sincerely, the country would not only be rid of criminals but peace and security would prevail in the society. However, the failure to discharge this duty and/or responsibility does not attract any legal sanction nor automatically renders the person who fails/refuses to discharge the duty culpable or a party to the offence being committed or any offence in that respect, except if it can be shown that the person aided and/or actively participated in the commission of the offence or omitted to do some act which aided the commission of the offence or prevented the security agent(s) from arresting the main culprit. See the Supreme Court case of Ogunlana & Ors. v. The State (1995) 5 NWLR (Pt. 395) 266 at 285, (1995) LPELR 2341, where His Lordship A. I. Iguh, JSC, at pages 20 21 held as follows:
one becomes an accomplice to a crime if he is participes criminis whether as principal or accessory before or after the fact with regard to the offence charged. The mere presence of a person at the commission of a crime does not ipso facto make one an accomplice to such a crime. See R. V. Ukpe (1938) 4 WACA 141. A person must be purposely facilitating or aiding the commission of a crime by his presence before he can be regarded as an accomplice. So too, the mere failure of a witness to report the commission of a crime will not ipso facto make the witness to the commission an accomplice. See Imoke Onyikoro v. R. (1959) NRNLR 103 and Yaw Azuma v. R. (1950) 13 WACA 87. The fact that one did not report a crime to the police until they interviewed him does not indicate complicity as it is common knowledge that in this country, witnesses often refrain from coming forward in case they might get into some sort of trouble. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
CIRCUMSTANCES IN WHICH AN APPELLATE COURT WILL NOT INTERFERE WITH THE FINDINGS OF THE TRIAL COURT
It is trite law, that it is the primary duty of a learned trial judge to admit evidence and ascribe probative value to the evidence duly admitted by him. He does this based on the quality of the evidence adduced before him and his observations of the demeanour of the witnesses. Thus, where a trial judge had effectively and unquestionably discharged his duty and made a finding, an appellate Court is not expected to lightly and readily interfere with the said finding of the trial Court and decision emanating or resulting therefrom, except it can be shown that the decision is perverse and/or against the established position of the law. See the cases of Okwejiminor v. Gbakeji (2008) 5 NWLR (Pt. 1079) 172; Iko v. State (2001) 14 NWLR (Pt. 732) 221 and Anyanwu v. Uzowuaka (2009) 13 NWLR (Pt. 1159) 445. It has been held times without number, that a decision is said to be perverse:
(a) When it runs counter to the evidence; or
(b) When it can be shown that the trial Court took into account matters which it ought not to have taken into account; or
(c) Shuts its eyes to some obvious facts; or
(d) When it occasioned miscarriage of justice.
See the cases of Irolo v. Uka (2002) 14 NWLR (Pt. 786) 195; Baridam v. State (1994) 1 NWLR (Pt. 320) 250 and Osuji v. Ekeocha (2009) 16 NWLR (Pt. 1166) 81.
In the instant case, the decision of the lower Court did not only occasioned miscarriage of justice to the appellant by the taking into consideration of extraneous facts in the case and without giving adequate considerations to material facts of the case. The decision was also not supported by evidence on record. Obviously, the learned trial judge was wrong when he found as a fact that the appellant was in the position to know or did in fact knew that the child was bought but kept mute about it. Knowing about a crime does not automatically imply that the party pinned with the knowledge would be held culpable for the crime, except it can be shown that the party took part, aided or served as an accessory to the crime. In the instant case, the appellant has not been shown to have taken part whether directly or indirectly in the kidnap and sale of the child; she was also not the buyer or facilitated the purchase. Thus, I am of the firm viewpoint that the learned trial judge erred, when he held that the appellant somewhat had knowledge with regard to the crime as it pertained to the kidnapped child, Master Chukwuemerie Ositadinma. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
WHETHER A PERSON WILL BECOME AN ACCOMPLICE TO A PARTICULAR CRIME BY MERELY COHABITING WITH ONE WHO IS ESTABLISHED TO BE CONCERNED WITH THE COMMISSION OF THE CRIME
I find support on this standpoint of mine, in the case of Ogunlana v. State (supra), where the apex Court enunciated, per Iguh, JSC as follows:
a person does not become an accomplice to a particular crime by merely cohabiting without more with one who is established to be concerned with the commission of a crime unless the former is aware of the criminal conduct for the latter and aids and abets or assist him in the commission of the offence or counsels or procures the latter to commit the offence or knowingly gives succour or encouragement to the criminal or facilitates the commission of the offence.
It is however, also instructively significant to note, that nemo punitur pro alieno delicto; no one is punished for the crime committed by another. See Amb. Obi-Odu v Gov. Duke & Ors. (2006) ALL FWLR (Pt. 337) 537, (2006) 1 NWLR (Pt. 961) 375. In the instant case, the appellant cannot be rightly classified as an associate or active participant in the commission of the crime or offence of kidnapping and sale of the said Master Chukwuemerie Ositadinma. The appellant can be likened more or less to a passive recipient without implicating knowledge of criminality with regard to the offence with which she was charged. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
JUSTICES
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
AKUDO ALOZIE Appellant(s)
AND
THE STATE Respondent(s)
MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment): This is an appeal in respect of a criminal matter and it is against the judgment of the High Court of Abia State, sitting at Aba, Coram: Hon. Justice T. U. Uzokwe, J., (hereinafter referred to as the lower Court and learned trial judge, respectively). The said judgment was delivered on the 16th day of April, 2014.
The accused person/appellant (hereinafter referred to as the appellant) was charged along with five other accused persons inter alia for the offence of conspiracy, ?to commit felony to wit: receiving stolen child and receiving stolen child in respect of one little Master Chukwuemerie Ositadinma in Charge No. A/42C/2009. The appellant was alleged to have conspired with one Uzoma and her father Abraham Alozie and bought the child for her aged father to serve as his surviving son and heir apparent. The appellant was alleged to have changed the child?s name and renamed him ?Prosper? in order to conceal the stolen child?s identity.
?The said Master Chukwuemerie Ositadinma was said to
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have been kidnapped from his parent while he was at the Divine Power Deliverance Ministry, located at No. 10 Ugwumgba Street, Aba, Abia State. After two weeks of intensive search, the child was found in possession of the appellant and her father, Abraham Alozie who at the said point in time was 110 years old. The appellant and her father were alleged to have bought the child from one Uchenna Alfred, (the 3rd accused person). The prosecution/respondent (hereinafter referred to as the respondent) in a bid to prove the guilt of the appellant and her co-accused persons called five witnesses and tendered the accused person?s extra-judicial statements as exhibits before the lower Court. The appellant testified in her defence and called no other witness or tender any exhibit. The appellant in both her extra-judicial statement (Exhibit R) and her oral testimony in Court, in the course of her defence, stated that the child was bought or brought by her father in conjunction with her father?s brother Uzoma Alozie. She stated that the child was handed over to her for nurturing and upkeep. She stated in Exhibit R that she requested for papers and receipts validating the
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transaction concerning the alleged adoption of the child, but her uncle Uzoma Alozie promised to bring them to her but he never did.
At the close of evidence or hearing, the learned counsel for the parties duly addressed the lower Court on behalf of their respective clients, thereafter the case was adjourned for the delivery of judgment. The learned trial judge after a lengthy and painstaking evaluation of all the pieces of evidence adduced by the parties, found the appellant culpable as a party and in conjunction with those who kidnapped and sold Master Chukwuemerie Ositadinma and was consequently sentenced to ten and fourteen years concurrent terms of imprisonment respectively, in respect of the two offences with which the appellant was charged, as earlier stated in this judgment.
Expectedly, the appellant was dissatisfied with the decision of the lower Court and has appealed against the same before this Court through a notice of appeal dated and filed on the 17th day of June, 2014. The said notice of appeal was subsequently amended with the leave of this Court. The amended notice of appeal was filed on the 28th
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day of February, 2017 but was deemed as properly filed by the order of this Court granted on the 8th day of March, 2017. Appellant?s challenges and or complaints against the judgment of the lower Court were captured in her three grounds of appeal which are reproduced without their particulars as follows:
?1. GROUND ONE
That the judgment of the trial Court is against the weight of evidence.?
?2. GROUND TWO
The learned Trial Judge erred in law and therefore came to a wrong conclusion when he held in relation to the 6th accused/appellant ?I find as a fact that she is a party to the crime against the 2nd boy Chukwuemerie?.
?3. GROUND THREE
The Learned Trial Judge erred in law and therefore came to a wrong conclusion when he held in relation to 6th accused/appellant ?She did testify under cross-examination that her uncle Uzoma Alozie bought the child and not that the child was adopted.?
The record of appeal was subsequently compiled and transmitted to this Court and the same was equally served on the parties to this appeal. Thereafter, the learned counsel for the parties proceeded to file and exchanged their respective briefs of argument.
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The appellant?s amended brief of argument was prepared by C. V. Okwandu Esq. The said amended appellant?s brief of argument was filed on the 28th day of February, 2017. It was deemed as properly filed and served by the order of this Court made on the 8th day of March, 2017. Also the appellant filed an amended appellant?s reply brief in response to new issues raised in the respondent?s brief of argument. The said amended appellant?s reply brief was filed on the 28th day of February, 2017. On the other side of the coin, the respondent?s brief of argument was prepared by U. E. Ndukwe Esq. The said respondent?s brief of argument was filed on the 28th day of March, 2017.
For the determination of this appeal, the learned appellant?s counsel distilled two issues for resolution. The issues are reproduced below as follows:
?(1) Whether the Appellant is a party to the commission of the crime.
(2) Whether there was proper evaluation of evidence by the court below before the conviction of the appellant.?
?The above stated issues thrown up for resolution
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and determination in this appeal, were also adopted by the learned respondent?s counsel. The issues are also adopted by me for the determination of this appeal.
ARGUMENTS ON ISSUES.
The learned counsel for the appellant submitted that the appellant was not a party to the kidnapping and sale of Master Chukwuemerie Ositadinma. He maintained that there is no single piece of evidence on record linking or connecting the appellant with the crime allegedly committed by the other accused persons. He argued that there is no direct or circumstantial evidence adduced on record indicating or suggesting in any way or manner, that the appellant conspired with other accused persons and thereby aided them in any way whatsoever in the commission of the offence they were charged with. Thus, he submitted, that the learned trial judge erred when he held that the appellant was a party to the alleged crime as charged. He supported his stance with the provision of Section 7 of the Criminal Code, Cap. 80, Laws of Abia State, 2005 and the cases of Alufohai v. State (2015) 3 NWLR (Pt. 1445) 172; Alarape v. State (2001) 5 NWLR (Pt. 705) 79; Emeka v. State (2001) NSCQR 582, (2001) 14 NWLR (Pt. 734) 666, among others.
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On Issue 2, the learned counsel for the appellant submitted, that ?there was no proper evaluation of evidence by the Court below before the conviction of the appellant. The conviction and sentence of the appellant was not based on the evidence and factual accounts of events presented during trial at the Court below.? The learned appellant?s counsel proceeded to do what could be referred to as a brief analysis of the evidence adduced on record in relation to the appellant?s culpability and stated that none of the accused persons admitted knowing the appellant, except the 5th accused person who is her sister. He then submitted, that ?it would not have been possible that the appellant had the intent or conspired with people she did not know to commit the offence. The prosecution failed to establish the case of conspiracy against the appellant. The trial Court failed on its own to properly evaluate the evidence laid before it.? He called in aid the case of Sowemimo v. State (2012) 2 NWLR (Pt. 1248) 372.
?The learned counsel for the appellant further argued, that
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the appellant properly established in evidence that the kidnapped child was merely brought to her for nurturing and to ensure his welfare. He maintained that the appellant took no step in the kidnap and sale of the child, and there is no evidence on record showing otherwise. In addition, he submitted that, in criminal trial, the prosecution is saddled with the responsibility of proving every single element of the crime allegedly committed, and in the instant case, the respondent has failed to discharge this duty. He referred us to the case of Ebenehi v. The State (2009) 6 NWLR (Pt. 1138) 431. The learned counsel for the appellant then argued, that the learned trial judge placed more reliance on the answer given by the appellant that the child was bought as against evidence given during her examination-in-chief that the child was adopted. The learned counsel further argued, that the appellant is an illiterate who could hardly differentiate between buying a child and adopting one, especially considering the fact that she testified in Igbo language, and no effort was made by the Court or the respondent to ensure that she understood the difference between buying a
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child and adopting one. He maintained, that the appellant?s ignorance of the difference between the two acts and her honest belief in the genuiness of the arrangement concerning the child, was what made her to demand for necessary documents validating the adoption. He submitted that the learned trial judge, failed to properly evaluate all the pieces of evidence adduced and thereby came to a wrong decision. We were urged to step into the shoes of the lower Court and re-evaluate the said pieces of evidence. He referred this Court to the case of Chief Samsudeen Afolabi Ayorinde & Ors. v. Chief Hassan Sogunro & 2 Ors. (2012) MRSC Vol. 8 pg. 1 at 20 – 21. Therefore he urged this Court to resolve this issue in favour of the appellant.
?In his response, the learned counsel for the respondent submitted that the appellant was a party to the commission of the offence with which she was charged. He argued that the appellant had common intention with the co-accused persons and some of the other perpetrators who were at large to kidnap a male child for her father. He maintained that the appellant was aware that the kidnapped Master Chukwuemerie Ositadinma
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was bought for her father, with the proceeds from her father?s land which was sold. He stated that the appellant who was 23 years old at the time the offence was allegedly committed was in a good position to know the difference between when a child was bought and when he was adopted.
Again, the learned counsel for the respondent submitted, that ?it is the duty of the person found with or in possession of a stolen or missing item to explain such possession. Such person should either be the thief or unlawful receiver and may have been contaminated with the act of conspiracy as at the stage such person joined which in this case relates the appellant.? He called in aid the cases of Adeniyi Adekoya v. The State (2012) 9 NWLR (Pt. 1306) 539 and Uchenna Nwocha v. State (2012) 9 NWLR (Pt. 1306) 571. He submitted, that the appellant was unable to give a good and excusable explanation on how she acquired custody of the child, rather she vividly gave evidence which implicated and showed her involvement with the offence as charged. He maintained, that the implicative evidence of the appellant was corroborated by the evidence of PW4 and PW5, who were the Investigating Police Officers.
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Again, the learned counsel for the respondent submitted, that ignorance of the law is not an excuse. He argued that the appellant was aware that her father?s land was sold for the sum of N380,000.00 (Three Hundred and Eighty Thousand Naira Only) out of which N350,000.00 (Three Hundred and Fifty Thousand Naira) was utilized to buy the said Master Chukwuemerie Ositadinma. He referred us to the appellant?s extra-judicial statement (Exhibit R) at page 139 of the record of appeal. Thus, he submitted that the learned trial judge properly evaluated all the pieces of evidence adduced before him and came to the right decision when he came to the conclusion that the appellant was a party to the offence with which she was charged. The learned respondent?s counsel contended, that there are sufficient evidence linking the appellant to the offence and from the evidence on record and circumstances of the case, there are sufficient reasons to conclude that she has common intention with the other accused persons to kidnap the child or that an agreement in that regard could be inferred. Thus, he submitted that
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the appellant was one of the conspirators involved with the offence and was rightly convicted in respect thereof. He referred us to the case of W. O. Mumuni & Ors. v. State (1975) ALL NLR 295.
Furthermore, the learned counsel for the respondent submitted, that the failure of the appellant to notify the police when she became aware of the crime or plot to commit the crime has made her a party to the offence. He supported his position with the provision of Section 7 of the Criminal Code Law and the cases of Adekoya v. State (2012) 9 NWLR (Pt. 1306) 539 and Ebenehi v. State (2009) 6 NWLR (Pt. 1138) 431. The learned counsel further submitted, that ?whatever is the reason that posited by the appellant counsel that prompted the appellant to purchase and did not go about the procedure as provided by law cannot avail the appellant, as ignorance of law is not an excuse ? And so far as the evidence adduced during trial revealed that the appellant was fixed at the crime area and as such was roundly connected to the offence of aiding the kidnapping of the 2nd victim, Chukwuemerie Ositadinma?. In conclusion, he submitted that the decision
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of the learned trial judge was properly arrived at after a thorough and sound evaluation of evidence adduced before him; devoid of any speculations, misconceptions and conjecture. Thus, he urged this Court to hold, that there was no doubt whatsoever with regard to the evidence adduced by the respondent, and that the learned trial Court properly evaluated all the pieces of evidence so adduced in this case. Therefore, he urged this Court to resolve both issues in favour of the respondent.
In reply, the learned counsel for the appellant in the amended appellant?s reply brief submitted, that the contention by the respondent?s counsel that the appellant had common intention with her co-accused persons to commit the offence charged and the arguments in support thereof, were not borne out from or predicated on evidence on record, and therefore misplaced and should be discountenanced. He referred us to the case of Musa Oyebanji v. State (2015) 62 NSCQR (Pt. 1) 676. He stated, that none of the co-accused persons who participated in the commission of the crime stated that they knew the appellant or had any dealing with her. He continued and
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argued, that the relevant question or consideration in this case with regard to the appellant was whether she knew that the child was stolen or accompanied anybody to buy a stolen child; which in this case would be answered in the negative. The learned counsel submitted, that the fact that the appellant knew that her father and uncle, Uzoma Alozie, planned to buy a child or bought a child would not make her culpable.
In addition, the learned counsel for the appellant submitted that the respondent has failed to establish in evidence that the appellant was guilty of stealing the child. He called in aid the case of Oshodin v. State (2001) 12 NWLR (Pt. 726) 217. He argued, that it was in evidence that the plan of the appellant?s family was to adopt a male child for her father who was aged, so that the adopted child would be his heir apparent. He maintained, that the appellant did not participate in the buying or adopting the child, so she couldn?t have known that the child was stolen. The learned counsel stated that the child was merely handed over to the appellant so that she could take care of and nurture him. And the appellant should not be held
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culpable for the kidnap of the child when it has been shown that she does not harbour any common intention with the other co-accused persons who allegedly stole, sold and bought the child.
On the issue of being culpable for being in possession or custody, the learned counsel for the appellant, conceded that when a person is found in possession of a recently stolen item, such a person would be deemed to be the thief, except if he can give a good explanation on how he came to be in possession of the item. The learned appellant?s counsel then argued that the appellant sufficiently gave reasons with regard to how she came to be in possession but the respondent failed to consider the explanation and convinced the learned trial judge to think in the same way. Again, the learned counsel for the appellant stated that, the word ?Izu Nwa? in Igbo language used by the appellant during her evidence, can mean both buying and adoption of a child. Thus, he submitted that the appellant should not be held culpable as a result of the use of that word.
?In conclusion, the learned counsel for the appellant once again submitted, that ?the prosecution failed to
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establish its case against the appellant. The learned trial judge did not properly evaluate the evidence and wrongly held that the appellant was a party to the crime against Chukwuemerie Ositadinma.? He also urged this Court to resolve the issues donated for resolution in this appeal in favour of the appellant and allow the appeal.
It is the civic duty and/or responsibility of every citizen of this country to report the commission of an offence or reasonable suspicion of the commission of an offence to the police and/or other security agencies. This duty and/or responsibility is more expressed in Section 12 of the Criminal Procedure Act, 1945, where private individuals in some specific circumstances are given the power to arrest offenders or persons who they reasonably believed had committed an offence. Thus, I am of the firm viewpoint that if every citizen discharges this duty reasonably and sincerely, the country would not only be rid of criminals but peace and security would prevail in the society. However, the failure to discharge this duty and/or responsibility does not attract any legal sanction nor
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automatically renders the person who fails/refuses to discharge the duty culpable or a party to the offence being committed or any offence in that respect, except if it can be shown that the person aided and/or actively participated in the commission of the offence or omitted to do some act which aided the commission of the offence or prevented the security agent(s) from arresting the main culprit. See the Supreme Court case of Ogunlana & Ors. v. The State (1995) 5 NWLR (Pt. 395) 266 at 285, (1995) LPELR ? 2341, where His Lordship A. I. Iguh, JSC, at pages 20 ? 21 held as follows:
one becomes an accomplice to a crime if he is participes criminis whether as principal or accessory before or after the fact with regard to the offence charged. The mere presence of a person at the commission of a crime does not ipso facto make one an accomplice to such a crime. See R. V. Ukpe (1938) 4 WACA 141. A person must be purposely facilitating or aiding the commission of a crime by his presence before he can be regarded as an accomplice. So too, the mere failure of a witness to report the commission of a crime will not ipso facto make the
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witness to the commission an accomplice. See Imoke Onyikoro v. R. (1959) NRNLR 103 and Yaw Azuma v. R. (1950) 13 WACA 87. The fact that one did not report a crime to the police until they interviewed him does not indicate complicity as it is common knowledge that in this country, witnesses often refrain from coming forward in case they might get into some sort of trouble.?
?In the instant case, it is not in dispute that the kidnapped child Master Chukwuemerie Ositadinma was allegedly bought by the appellant?s father and her uncle (Abraham Alozie and Uzoma Alozie, respectively). The said child was allegedly bought by the appellant?s father to be his heir and maintain his name, because he did not have any male issue and he was already very old (110 years of age) to bear another child. The purchase of the child was facilitated by the appellant?s uncle who helped appellant?s father to sell his land to raise funds for the purpose and linked him up with the seller. The appellant based on her status as a daughter in the family could conveniently be held to be aware of every plan with regard to the transaction, but
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there is no evidence on record before the learned trial judge, that suggested or from where it can be inferred that the appellant participated in the plan or aided the commission of the offence in any material aspect. Also, there is no single evidence on record which linked the appellant with the kidnapping and sale of the child purportedly done by the 1st ? 3rd accused persons. (Ewutosi Ogolo, Chinyere Ahamefula and Uchenna Alfred, respectively). In fact, none of the accused persons and the respondent?s witnesses identified or implicated the appellant in the kidnap and sale of the child. The relevant prosecution?s witnesses were unanimous and consistent on the fact that the kidnapped child was bought by Abraham Alozie, the appellant?s father in company of Uzoma Alozie, appellant?s uncle.
Indeed, the only connection the appellant had with the child was that the child was handed over to her to nurture and she gave the child the name, Prosper. However, I do not conceive or perceive this as being enough to make the appellant culpable or to be regarded as a party to the crime. From the evidence on the printed record of appeal
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placed before this Court, it is not in dispute that the child was bought by the appellant?s father. It can also be positively inferred that the appellant lived elsewhere, had to relocate to her father?s house, thus, it can not be said with certainty that the child was in her exclusive possession, rather she can only be regarded as holding the child in custody for her aged father. To further buttress the appellant?s perceived ignorance of the events and or deal which led to the purchase of the child and her innocence, she demanded for explanation from her uncle over the child; her uncle then told her that he will bring documents from the lawyer to assure her of the legality of the transaction. On the issue of re-naming the child Prosper, the appellant gave an uncontroverted evidence that she was informed that in motherless babies home, names are not given to children in the home, and this prompted her to name the child Prosper. (See Exhibit R at page 29-30 of the record of appeal). Even if the child was found to be in the exclusive possession of the appellant, there are sufficient explanations as to how she came about the said possession. Though, the position of the law is trite
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that a party who is in possession of a stolen goods or item(s) soon after the theft is either the thief or has received the goods or item(s) knowing them to be stolen. However, if the party can give a good, tenable and reasonable explanation as to how he came into the said possession, he would be exonerated. See the cases of Wale Banjo v. The State (2011) LPELR ? 5090; Eze v. State (1985) 3 NWLR (Pt. 13) 429 and State v. Nnolim (1994) 5 NWLR (Pt. 345) 394. In the instant case, there is no credible, cogent and concrete evidence on record, from where it can be safely deduced that the appellant knew the child was kidnapped or stolen. Also, the appellant has adduced sufficient and exculpating reason as to how she came about the possession of the child. Thus, I do not share the view of the learned trial judge that the appellant was a party to the kidnapping and subsequent sale of the child.
?It is trite law, that it is the primary duty of a learned trial judge to admit evidence and ascribe probative value to the evidence duly admitted by him. He does this based on the quality of the evidence adduced before him and his
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observations of the demeanour of the witnesses. Thus, where a trial judge had effectively and unquestionably discharged his duty and made a finding, an appellate Court is not expected to lightly and readily interfere with the said finding of the trial Court and decision emanating or resulting therefrom, except it can be shown that the decision is perverse and/or against the established position of the law. See the cases of Okwejiminor v. Gbakeji (2008) 5 NWLR (Pt. 1079) 172; Iko v. State (2001) 14 NWLR (Pt. 732) 221 and Anyanwu v. Uzowuaka (2009) 13 NWLR (Pt. 1159) 445. It has been held times without number, that a decision is said to be perverse:
(a) When it runs counter to the evidence; or
(b) When it can be shown that the trial Court took into account matters which it ought not to have taken into account; or
(c) Shuts its eyes to some obvious facts; or
(d) When it occasioned miscarriage of justice.
See the cases of Irolo v. Uka (2002) 14 NWLR (Pt. 786) 195; Baridam v. State (1994) 1 NWLR (Pt. 320) 250 and Osuji v. Ekeocha (2009) 16 NWLR (Pt. 1166) 81.
In the instant case, the decision of the lower Court did not only occasioned miscarriage of justice to the
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appellant by the taking into consideration of extraneous facts in the case and without giving adequate considerations to material facts of the case. The decision was also not supported by evidence on record.
Obviously, the learned trial judge was wrong when he found as a fact that the appellant was in the position to know or did in fact knew that the child was bought but kept mute about it. Knowing about a crime does not automatically imply that the party pinned with the knowledge would be held culpable for the crime, except it can be shown that the party took part, aided or served as an accessory to the crime. In the instant case, the appellant has not been shown to have taken part whether directly or indirectly in the kidnap and sale of the child; she was also not the buyer or facilitated the purchase. Thus, I am of the firm viewpoint that the learned trial judge erred, when he held that the appellant somewhat had knowledge with regard to the crime as it pertained to the kidnapped child, Master Chukwuemerie Ositadinma. I find support on this standpoint of mine, in the case of Ogunlana v. State (supra), where the apex Court enunciated, per Iguh, JSC as follows:
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?a person does not become an accomplice to a particular crime by merely cohabiting without more with one who is established to be concerned with the commission of a crime unless the former is aware of the criminal conduct for the latter and aids and abets or assist him in the commission of the offence or counsels or procures the latter to commit the offence or knowingly gives succour or encouragement to the criminal or facilitates the commission of the offence.?
It is however, also instructively significant to note, that nemo punitur pro alieno delicto; no one is punished for the crime committed by another. See Amb. Obi-Odu v Gov. Duke & Ors. (2006) ALL FWLR (Pt. 337) 537, (2006) 1 NWLR (Pt. 961) 375. In the instant case, the appellant cannot be rightly classified as an associate or active participant in the commission of the crime or offence of kidnapping and sale of the said Master Chukwuemerie Ositadinma. The appellant can be likened more or less to a passive recipient without implicating knowledge of criminality with regard to the offence with which she was charged.
?Based on all that have been said above, the two
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issues formulated for the determination of this appeal are resolved in favour of the appellant. Consequently, this appeal is found by me to be meritorious and it is accordingly allowed. Thus, the decision of the lower Court delivered on the 16th day of April, 2014 in Charge No. A/42C/2009 as it relates to the appellant is consequently set aside; both the conviction and sentence. In its place, I hereby enter a verdict of discharge and acquittal in respect and favour of the appellant, and she should be released forthwith from prison custody.
ITA GEORGE MBABA, J.C.A.: I agree with the erudite reasoning and conclusions of my learned brother, M.A. OREDOLA JCA, in the lead judgment and I too allow the appeal and set aside the decision of the trial Court as concerned the Appellant.
I abide by the consequential orders in the judgment.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I agree.
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Appearances:
Miss C. V. OkwanduFor Appellant(s)
Respondent absent but duly placed on Notice.For Respondent(s)
Appearances
Miss C. V. OkwanduFor Appellant
AND
Respondent absent but duly placed on Notice.For Respondent
