ANENE v. STATE
(2022)LCN/16218(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Thursday, March 31, 2022
CA/A/1181C/2019
Before Our Lordships:
Hamma Akawu Barka Justice of the Court of Appeal
Ugochukwu Anthony Ogakwu Justice of the Court of Appeal
Bature Isah Gafai Justice of the Court of Appeal
Between
OKEME ANENE (A.K.A OJUKWU) APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
WHETHER OR NOT THE STATEMENT OF AN ACCUSED PERSON TAKEN IN THE ABSENCE OF A LEGAL PRACTITIONER TRANSMUTES TO DENYING THE ACCUSED HIS RIGHT TO FAIR HEARING
Let me first start and thereby put to rest the assertion that a statement of an accused person taken in the absence of a legal practitioner transmutes to denying appellant his right to fair hearing, on the bases that Section 17 (1) and (2) of the ACJA 2015 was not complied with. This issue cropped up and was settled in a number of cases including Tunde Balogun vs. FRN (2018) LPELR – 44099 (CA), Hassan Abubakar vs. The State (2021) LPELR – 54740 (CA), Ezike Ilechukwu Chidera Olisaeloka vs. People of Lagos State (2017) LPELR 45255 (CA) per Ogakwu JCA, Kadiri vs. The State of Lagos (2019) LPELR – 47714 (CA). In the cases cited above, this Court while departing from Awelle vs. People of Lagos State 2016 LPELR-41395 (CA), per Tijjani Abubakar JCA, as he then was, recognized and bowed to the superiority of the Evidence Act in the process of recording the statement of accused persons. This point was amplified in the case of Kadiri vs. The State of Lagos (supra) per Ogakwu JCA, to the conclusion that the provisions of the ACJA under consideration cannot assume the notoriety of mandatoriliness ascribed to it, in the face of a superior law, being the Evidence Act, 2011. PER BARKA, J.C.A.
THE DEFENSE OF ALIBI
The defense of alibi encapsulates that situation whereby an accused due to his being somewhere else other than the scene of the crime, is incapable of committing the alleged crime. Fabiyi JSC, in Abubakar Tijjani Shehu vs. the state (2010) LPELR – 3041 (SC), defined the word alibi to simply mean “being elsewhere”. It is the law that where an accused person puts up a plea of alibi, he is duty bound to furnish the prosecution with the full particulars of the alibi. He must state his whereabouts and those present with him at the material time of the incident, and it is only where that is done that the prosecution proceeds to investigate the alleged alibi with the attendant possibility that the failure by the prosecution to do so will amount to discharging the accused. See Yanor vs. The State (1965) NMLR 337. The Apex Court in Nwabueze & Ors vs. State (1988) LPELR – 2080 (SC) through the mouth of Kawu JSC stated that:
“I think the position has been clarified in a portion of the judgment of this Court delivered by Brett, JSC in Gachi & Ors vs. The State (1965) NMLR 333 & 335 where he said: the word alibi means elsewhere and since it is a matter peculiarly within the knowledge of an accused person if he was at some particular place other than where the prosecution says he was at the material time, what has been called the evidential burden, that is, the burden of adducing or eliciting some evidence tending to show this rests on him.”
It presupposes therefore that not only did he not commit the crime, but that he was elsewhere and couldn’t have committed the crime. See Olatinwo vs. The State (2013) 8 NWLR (pt. 1355) 126. In the case under consideration, the trial Court and indeed this Court is not impressed with the defense raised by the appellant. The lower Court from the record rightly found that the defense was not raised timeously, i.e at the time of their arrest, but raised only in their defense and therefore unavailing. Moreover, the appellant having been fixed to the scene of the offence by the evidence of the Pw2 which the lower Court believed, it amounts to a mere afterthought and the defense of no consequence. See Efedi & Anor vs. The State (2012) LPELR – 9832 (CA), Njovens & Ors vs. The State (1973 LPELR – 2042 (SC), Ugwu vs. The State (2020) LPELR – 49375 (SC). PER BARKA, J.C.A.
THE METHODS THE PROSECUTION CAN ADOPT TO PROVE ITS CASE
The Courts over time are agreed that the prosecution in proceeding to prove its case, adopts one or more or all of the following as stated in Olaoye vs. The State (2018) 8NWLR (pt. 1621) 281:
“perhaps it is apt to kick start the resolution of the issue by reiterating that there are three methods or modes of such proof, (i) by testimonies of eye witnesses or witnesses who watched, heard or witnessed the commission of the crime by the accused person(s), (ii) Through confessional statement voluntarily made by the accused and (iii) through circumstantial evidence which clearly points to the sole fact that the accused and no other person committed the offence charged.”
See also Ilodigiwe vs. The State (2012) LPELR – 9342 (SC). The prosecution no doubt must have been influenced by the immutable words of Bello CJN in Opolo vs. The State (1977) LPELR – 2750 (SC), where he stated that in criminal proceedings, all facts except as may be permitted by law be proved by direct oral evidence of a witness who has personal knowledge of the facts in issue. PER BARKA, J.C.A.
HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): The appellant was the fourth defendant in charge with No. IDHC/24C/2018, the State vs. Simeon Ajogwu and three ors decided on the 19th day of June, 2019. By the said decision, all the four defendants, appellant inclusive were convicted and sentenced to a term of four years each for the offence of kidnapping and six months on the charge of conspiracy to commit the offence of kidnapping.
Records has it that appellant along with three others were arraigned before the High Court of Justice Kogi State on the 4th day of October, 2018 on a two count charge which reads as follows:-
First Count.
Statement of offence.
Criminal Conspiracy contrary to Section 97 (1) of the Penal Code.
Particulars of Offence
That you (1) Simon Ajogwu, (2) Felix Ezugwu, (aka) Chaplate (3) Chukwuemeka Okoro Sylvester and Okeme Anene (aka) Ojukwu on or about the 17th day of January, 2018 at Nokwa and Udaba Aji village in Igala-Mela/Odolu Local Government Area within the Kogi State Judicial Division agreed to do an illegal act to wit, you kidnapped one Mrs Catherine Adama (nee) Ali of Nokwa Village.
Second Count.
Statement of Offences
Kidnapping, contrary to Section 4(b) of the Kogi State kidnapping and other related offences (Prohibition) Law 2015.
Particulars of Offence
That you (1) Simon Ajogwu, (2) Felix Ezugwu, (aka) Chaplate (3) Chukwuemeka Okoro Sylvester and Okeme Anene (aka) Ojukwu on or about the 17th day of January, 2018 at Nokwa and Udaba Aji village in Igala-Mela/Odolu Local Government Area within the Kogi State Judicial Division while armed with guns and other dangerous weapons kidnapped one Mrs Catherine Adama (nee) Ali of Nokwa Village into a bush for three days before she escaped.
The four defendants pleaded not guilty to the two count charge read to their understanding, wherefore the State proceeded to call evidence in proof of the counts of offence alleged against them. In so doing, prosecution called a total of six witnesses, recorded as Pw1 – Pw6 including the victim of the alleged offence (Pw2), and tendered some exhibits, notably the alleged statement of the appellant. The prosecution having closed their case, each of the four defendants testified in their defense, but called no further witnesses. On the 14th of May, 2019, parties adopted the written addresses filed on behalf of their various and respective positions and thereafter adjourned for judgment which was delivered on the 19th day of June, 2019, convicting all the defendants, appellant inclusive.
Peeved by their conviction and sentence, appellant caused a notice of appeal to issue predicated upon eight grounds of appeal. The extant Notice of Appeal is the amended Notice of Appeal filed on the 17th of July, 2020, though deemed on the 23rd of March, 2022, now predicated upon nine grounds of appeal. The appeal having been entered to this Court on the 18th of December, 2019 appellants filed a brief of argument on the 17th of July 2020. On the 23rd of March, 2022, Mr Ikani S O, who settled the plaintiffs brief identified the processes filed in arguing the appeal, and urged the Court to allow the appeal.
In opposing the appeal, Mr. H.O. Abdullahi, the Honourable Director Public Prosecutions Kogi State, filed a brief on the 25th of August, 2020, adopted the same and urged the Court to dismiss the appeal. From the brief filed by the appellant, the following issues were proposed for resolution by the Court:-
i. Whether there was any evidence linking the 4th Defendant/Appellant to the offence of kidnapping.
ii. Whether the statement of PW2 to NSCDC on the 24th February, 2018 which the trial Judge heavily relied upon was admissible in law when the interpreter who translated the statement in Ibo language was not called to testify and subsequent denial of the said statement by the maker PW2.
iii. Whether the Appellant’s conviction and sentence for criminal conspiracy was not in error in the face of the contradiction and identity crises of the kidnappers.
iv. Whether the statement of the Appellant which was not recorded by the prosecution in compliance with the provision of ACJA in the absence of the Appellant’s Legal Practitioner without video recording was validly admitted by the trial Court.
The respondent on the other hand proffered a sole issue, it reads as follows:-
Whether or not the prosecution proved its case beyond reasonable doubt to warrant the conviction and sentence of the Appellant.
Having carefully studied the grounds of appeal as well as the issues proposed for resolution, it is my intention highlighting the submissions of the learned counsel on both sides on those issues formulated, starting with those arguments submitted by the appellant’s counsel and thereafter give consideration to the totality of the arguments at the same time.
While proffering arguments with respect to the issue whether there was evidence linking appellant with the commission of the offence, the learned counsel for the appellant submitted that the elements establishing the offence of kidnapping are as stated in the case of Odogwu vs. The State (2019) LPELR – 48292 (CA), contending that the Court cannot supply any missing link in order to convict the suspect. The case of Yakubu vs. FRN (2009) ALL FWLR (pt. 498) 387 at 407 was relied upon. He argued also that before the trial Court comes to the conclusion that an offence had been committed, the ingredients of the offence must be looked for, so as to ascertain whether the acts of the accused person amounted or comes within the confines of the particulars of the offence charged. Learned counsel analyzed and faulted the evidence adduced by the prosecution, contending that there was nothing that pinned or linked the appellant to the scene as the one that had committed the offence of kidnapping nor was there evidence that it was the appellant who took the Pw2 away. He submits that it is unsafe to convict an accused person based on speculation and or suspicion but on credible and reasonable inference relying on Amadi vs. The State (1993) 8NWLR (pt. 314) 644 and State vs. Ogunjo (2001) 2ACLR 538. Concluding on the issue, learned counsel urged the Court to disregard the findings of the trial Court as the degree of certainty falls short of the criteria required for a criminal trial and thereby resolve the issue in favor of the appellant.
With respect to whether the statement of the Pw2 relied upon by the trial Court was admissible, learned counsel made mention of the principles relating to statements taken through an interpreter in criminal cases, particularly where the complainant’s statement is recorded in the English language, contending that such a statement is inadmissible in evidence unless the interpreter was called to give evidence. The cases of Nwaeze vs. The State (1996) 2 NWLR (pt. 428) 1 at 20 and Iyu vs. The State (1965) ALL NLR 203 at 209 were referred to. He also argued that Exhibit P1 was supplied in the Ibo language as well as her evidence in Court, and while the name of the person who interpreted the evidence was not stated and the exhibit P1 dumped in Court, submits that the extra-judicial statement of the accused person ought to have been rejected in evidence in view of the fundamental incurable irregularities exposed in Exhibit P1, and thereby urged the Court to resolve the issue in favor of the appellant.
With respect to whether the conviction and sentence imposed on the appellant for criminal conspiracy was not in error in the face of the contradictions and identity crises of the kidnappers, learned counsel submitted that any contradiction as to the identity of the appellant fixing him to the scene of the crime is vital, substantial or fundamental to the question as to who committed the crime. He pointed out that Pw2 in her statement did tell the Court that she heard names like Emeke, Simeon, Ojukwu and Chalate while with the attackers, but while giving evidence stated that those she could recognize were the 1st 3rd and 4th defendants, which contradicted the evidence of the Pw2. Counsel goes further to submit that the pieces of evidence adduced by the Pw1, Pw2 and Pw5 on the recognition and identification of the defendants is contradictory. For instance counsel argued, whereas the Pw5 stated that the Pw2 mentioned to him that 1st and 4th defendants were workers on her sons site, the same Pw2 denied knowing any of the defendants. He referred the Court to the case of Woru vs. The State (2011) ALL FWLR (pt. 602) 1644 per Nweze JCA as he then was on the difference between recognition and identification, and the further cases of Ogheneruemu Ibane vs. The State (2012) LPELR – 9702 (CA) and Nwabueze vs. The State (1988) 4 NWLR (pt. 85) 16 on the issue, and maintained that from the totality of the evidence led, no identification parade was held, Pw3 having stated that 14 suspects were arraigned, while Pw4 mentioned 11 all on different dates. He urged the Court to discountenance the statement of one Ezechukwu, the chemist at Abi as the said Ezechukwu was not called for cross-examination. He affirms on the authority of Atiku vs. The State (2010) 9NWLR (pt. 1199) 241 at 274:
“Contradictions or inconsistencies in the evidence of witnesses which are material to the proof of the ingredients of the criminal offence are fatal to the case against the accused person. Prosper vs. The State (2014) LPELR – 23500 (CA).”
Based on the above statement of the law, learned counsel urged the Court to resolve the issue in favor of the appellant.
On whether the statement of the accused/appellant recorded in the absence of the appellant’s lawyer and without it being video recorded, was not in violation of Section 9 (3) of the Administration of Criminal Justice Act (ACJA), and thereby depriving the accused person/appellant his right to fair hearing, learned counsel made reference to case law concluding that failure to avail the appellant his right to have a counsel sit by his side while giving his statement amounted to a denial of his right of fair hearing, and the trial conducted a nullity. The case of ANPP vs. INEC (2004) 7 NWLR (pt. 871) 16 (CA) was relied upon. He then urged the Court to resolve the issue in favor of the appellant and finally allow the appeal.
In his response, Mr Abdullahi, the learned DPP, drew the attention of the Court to the definition of the offence of kidnapping under Section 3(1) of the Kidnapping and other related offences (Prohibition) law, 2015 of Kogi State as including:
“The unlawful use of force, fraud or stealth to remove or take away a person from one place to another or the unlawful confinement of a person in any place without his consent or such other activities or actions related thereto but not restricted to any of the following intentions or purposes;
i. To hold for ransom
ii. As a shield or hostage
iii. To facilitate the commission of an offence
iv. To inflict bodily injury, terrorize the victim or another;
v. To interfere with the performance of private or any government or political function;
vi. To interfere with the persons business
vii. To attract attention or gain favor of any kind”
See the cases of Okashetu vs. The State (2016) 15NWLR (pt. 1534) 126 at 148, Jonah Lase vs. The State (2017) NGSC 2.
and maintained that enough evidence was adduced by the prosecution in fulfilling the necessary requirement for the conviction of the defendants, appellant inclusive. He pointed out that Pw1 having narrated the circumstances under which Pw2 was kidnapped including the testimony of the Pw5 who testified to the demand made for ransom, coupled with the identification of the appellant by the victim, put paid to the issue of whether Pw2 was kidnapped or not. He posits that the contradictions identified by the appellants in the testimony of the prosecution witnesses were not material as to affect the result of the case maintaining that the prosecution proved its case as required by law urging the Court to dismiss the appeal, and thereby affirm the decision of the Court of trial.
Having accorded due consideration to the grounds of appeal and the submission of learned counsel on the issues, I do not find it hard agreeing with the learned counsel for the respondent, having submitted that the aggregate of all the issues canvassed, boils down to the issue whether the lower Court was right or wrong in convicting appellant for the offences of conspiracy to commit kidnapping and kidnapping. To that end, I think the starting point is to first consider the main offence charged, being the offence of kidnapping, before attending to the allegation on conspiracy, the reason being that in most cases where the main offence is not proven, the allegation based on conspiracy most a times fails. The Apex Court in the case of Osetola vs. The State (2012) LPELR – 9348, per Ariwoola JSC, following the footpath set in Balogun vs. AG Ogun State (2002) 4SCM 23, held that the proper approach in the consideration of an indictment containing the offence of conspiracy and the substantive charge, is to deal with the substantive charge first. The reasoning stated in the case of Arigbigbola Awosika & Anor vs. The State (2010) LPELR – 9164 (CA), is that:
“Conspiracy to commit armed robbery is a separate offence from the offence of armed robbery. The act of conspiracy may be based on the same facts or set of facts as in the main offence of armed robbery and the two may be intricately interwoven. Courts are enjoined when such is the case to deal with the main offence first, for should the main offence of armed robbery be unproven, there would be no offence left that the accused would have been guilty of committing.”
The provisions of Section 36 (5) of the Constitution of the Federal Republic of Nigeria, 1999 read together with Section 138 of the Evidence Act, 2011, pinpoints the established legal position that in any criminal trial or criminal related trials, the offence alleged against an accused person must be proved beyond reasonable doubt. This burden placed on the prosecution like the rock of Gibraltar, but for few exceptions never shifts. See Aigbadion vs. The State (2000) 7 NWLR (pt. 666) 686 at 704, The State vs. Emine (1992) NWLR (pt. 256) 658, Mbenu vs. The State (1988) NWLR (pt. 84) 615, Ola vs. The State (2019) ALL FWLR (pt. 998) 323 at 342. That is not to say that where an accused person in Court duly represented by counsel, pleads guilty to the charge against him, that plea of guilt will not satisfy the standard of proof required, but that the Court can and is at liberty to convict upon such admission of guilt by the accused person. See Ogheneovu vs. FRN (2019) 13 NWLR (pt. 1689) 235 at 259, Adamu vs. FRN (2020) 2NWLR (pt. 1707) 129 at 151.
This requirement of proof imposed on the prosecution does not go as far as being proof beyond any shadow of doubt, but entails establishing all ingredients of the offence charged. See Oteki vs. AG Bendel State (1986) 2 NWLR (pt. 24) 648.
Coming to the case at hand, appellant and three others were accused of kidnapping one Mrs. Catherine Adama nee Ali, a resident of Nokwa village, while armed with guns and other dangerous weapons. The prosecution called six witnesses in an effort at proving the case. It has been held by the apex Court in Bello Okashetu vs. The State (2016) LPELR – 40611 (SC), that for the prosecution to succeed in nailing the accused with the offence of kidnapping, it must be proved that; the victim was seized and taken away by the accused person; that the victim was taken away against his consent, and finally that he was taken away against his wish. See also Ewugba vs. the State (2017) LPELR – 43833 (SC).
Whereas the prosecution and the trial Court were of the opinion that the prosecution proved its case as required by law, and thereby convicted and sentenced him to a term of imprisonment, the learned counsel for the appellant queried his conviction by the trial Court picking holes with the testimony adduced, maintaining that there was no sufficient evidence linking the accused person with the statutory elements that constituted the offence with which he was charged, more so since the appellants statement was written in the absence of his legal practitioner thus violating his fundamental right to fair hearing. Learned counsel also complained that the translator of the statement of Pw2 was not called to testify, and further that there were contradictions in the prosecution’s case as well as crises of identity of the appellant. Let me first start and thereby put to rest the assertion that a statement of an accused person taken in the absence of a legal practitioner transmutes to denying appellant his right to fair hearing, on the bases that Section 17 (1) and (2) of the ACJA 2015 was not complied with. This issue cropped up and was settled in a number of cases including Tunde Balogun vs. FRN (2018) LPELR – 44099 (CA), Hassan Abubakar vs. The State (2021) LPELR – 54740 (CA), Ezike Ilechukwu Chidera Olisaeloka vs. People of Lagos State (2017) LPELR 45255 (CA) per Ogakwu JCA, Kadiri vs. The State of Lagos (2019) LPELR – 47714 (CA). In the cases cited above, this Court while departing from Awelle vs. People of Lagos State 2016 LPELR-41395 (CA), per Tijjani Abubakar JCA, as he then was, recognized and bowed to the superiority of the Evidence Act in the process of recording the statement of accused persons. This point was amplified in the case of Kadiri vs. The State of Lagos (supra) per Ogakwu JCA, to the conclusion that the provisions of the ACJA under consideration cannot assume the notoriety of mandatoriliness ascribed to it, in the face of a superior law, being the Evidence Act, 2011. The argument by appellant on that point, which also forms the substance of his fourth issue is therefore not available to him.
It is thus evident that the main question arising for determination of the appeal is whether Pw2, the alleged victim was indeed seized and taken away against her consent without lawful excuse, and by the appellant. In the examination of this vital issue, there is the evidence of the Pw1, Austus Utazi, a member of the Police Vigilante group, who gave evidence to the effect that on the 17th of January, 2018 at about 8 pm, he heard a cry for help, and when he rushed to the scene, he heard a gun shot which scared other people who were running to the scene, and under that circumstance, Mrs. Catherine Adama was carted away from her house by the hoodlums. The further evidence on the issue is that of the victim herself who stated that she was beaten and taken away on their motor cycle after pointing their guns at her. That she was blind folded and taken to different locations during her ordeal, and fortunately ran away when the guard that was guarding her fell asleep. Pw5 similarly gave evidence as to how he received a call that Pw2 was kidnapped, and that a call came through to him on his mother’s line demanding the payment of N5 million naira ransoms. He continued to narrate that he took the Pw2 for treatment at Idah and later to Nsukka after she had narrated her experience to him. The totality of these pieces of evidence leaves no one in doubt that that Pw2 was indeed kidnapped and I so hold. The critical question that agitated the mind of the lower Court then was whether prosecution led that quality of evidence linking the defendants, appellant inclusive to the commission of the heinous crime. The lower Court from pages 4 – 10 of the judgment, analyzed the evidence led, and was satisfied with the evidence adduced to the conclusion that prosecution established the offences charged beyond reasonable doubt.
Looking at the pieces of evidence led before the lower Court, it seems very clear that the appellant hinged his defense solely on alibi. Not only did he deny the commission of the offence, but stated that he was arrested after returning from a funeral, and that even though no identification parade was conducted, Pw1 went into the cell where he was being held and pointed him out. The defense of alibi encapsulates that situation whereby an accused due to his being somewhere else other than the scene of the crime, is incapable of committing the alleged crime. Fabiyi JSC, in Abubakar Tijjani Shehu vs. the state (2010) LPELR – 3041 (SC), defined the word alibi to simply mean “being elsewhere”. It is the law that where an accused person puts up a plea of alibi, he is duty bound to furnish the prosecution with the full particulars of the alibi. He must state his whereabouts and those present with him at the material time of the incident, and it is only where that is done that the prosecution proceeds to investigate the alleged alibi with the attendant possibility that the failure by the prosecution to do so will amount to discharging the accused. See Yanor vs. The State (1965) NMLR 337. The Apex Court in Nwabueze & Ors vs. State (1988) LPELR – 2080 (SC) through the mouth of Kawu JSC stated that:
“I think the position has been clarified in a portion of the judgment of this Court delivered by Brett, JSC in Gachi & Ors vs. The State (1965) NMLR 333 & 335 where he said: the word alibi means elsewhere and since it is a matter peculiarly within the knowledge of an accused person if he was at some particular place other than where the prosecution says he was at the material time, what has been called the evidential burden, that is, the burden of adducing or eliciting some evidence tending to show this rests on him.”
It presupposes therefore that not only did he not commit the crime, but that he was elsewhere and couldn’t have committed the crime. See Olatinwo vs. The State (2013) 8 NWLR (pt. 1355) 126. In the case under consideration, the trial Court and indeed this Court is not impressed with the defense raised by the appellant. The lower Court from the record rightly found that the defense was not raised timeously, i.e at the time of their arrest, but raised only in their defense and therefore unavailing. Moreover, the appellant having been fixed to the scene of the offence by the evidence of the Pw2 which the lower Court believed, it amounts to a mere afterthought and the defense of no consequence. See Efedi & Anor vs. The State (2012) LPELR – 9832 (CA), Njovens & Ors vs. The State (1973 LPELR – 2042 (SC), Ugwu vs. The State (2020) LPELR – 49375 (SC). Having also studied the record, it is my humble but firm view that the lower Court in that regard is absolutely correct holding that the defense of alibi is not available to the appellant, and I so hold.
The Courts over time are agreed that the prosecution in proceeding to prove its case, adopts one or more or all of the following as stated in Olaoye vs. The State (2018) 8NWLR (pt. 1621) 281:
“perhaps it is apt to kick start the resolution of the issue by reiterating that there are three methods or modes of such proof, (i) by testimonies of eye witnesses or witnesses who watched, heard or witnessed the commission of the crime by the accused person(s), (ii) Through confessional statement voluntarily made by the accused and (iii) through circumstantial evidence which clearly points to the sole fact that the accused and no other person committed the offence charged.”
See also Ilodigiwe vs. The State (2012) LPELR – 9342 (SC). The prosecution no doubt must have been influenced by the immutable words of Bello CJN in Opolo vs. The State (1977) LPELR – 2750 (SC), where he stated that in criminal proceedings, all facts except as may be permitted by law be proved by direct oral evidence of a witness who has personal knowledge of the facts in issue. The Pw2, the victim of the crime, narrated in detail how the crime was perpetrated by the perpetrators, reproduced in the judgment of the lower Court at pages 4-5 thereof. The Court of trial was satisfied with the evidence adduced by the victim Pw2, which established how she was held by the defendants for four days, and heard their names as they were calling each other. The lower Court equally was satisfied through evidence adduced by the Pw2, Pw3 and Pw6 that an identification parade was conducted on the 23rd day of February, 2018, where Pw2 without hesitation identified her abductors. The Court went further to consider the question of the existence of contradictions in the evidence of the prosecution, summing it up with the words of the Apex Court delivered by the eminent Jurist Adekeye JSC in Musa vs. The State (2009) LPELR – 1930(SC), where the Court held that contradictions in the testimony of witnesses are inevitable, but that what the law frowns upon is material contradictions. See also Odili JSC in Awosika vs. The State (supra) and Oloye vs. The State (2018) LPELR – 44775 (SC). While concluding that the prosecution proved its case, the Court asserted that:
“When the evidence of the Pw2 is considered against the backdrop of the testimonies of Pw3, Pw5, Pw6, that the Pw2 duly identified the defendants from among persons paraded before her, no serious issue can be raised out of the discrepancy in her evidence regarding her prior dealings with the defendants. In the circumstance of this case, I find that the evidence of Pw2 did not detract from the undisputed facts and believe the evidence which I find to be credible and reliable in spite of the discrepancy highlighted above. See Gira vs. The State (1996) LPELR – 1322 (SC), Abogede vs. The State (1996) LPELR – 45 (SC) State vs. Danjuma (1997) LPELR – 3216 (SC).”
I entirely agree with the trial Court, that the mere fact that Pw2 was said to have stated that some of the defendants worked in her sons house, which she later denied stating not knowing them as such laborers in the building of her sons house, cannot be said to be material to the issue of their having been clearly identified by their victim. In any case, appellant did admit being a laborer in the building of Pw5‘s house in his voluntary statement. Further to that, learned counsel for the appellant threw a lot of dust arguing that the evidence proffered by the Pw2 in Ibo Language was not translated to English and vice versa. From the record, Pw2’s testimony is located at pages 92 – 94 of the record. Therein it is clearly depicted that one John Onoja affirmed to translate truthfully and accurately from English language to Ibo language and vice versa. That being the case, the complaint by the learned counsel has no support from the record. In any case, Exhibit P1, being part of the statement of complaint which she made to the NSCDC officers, was tendered by the appellants in an effort at contradicting her oral evidence made to the effect that 1st and 4th defendants worked in her new house. I find the cases cited as being grossly inapplicable, and that which does not help the case of the appellant. There is also the other aspect of complaint raised by the appellant, relating to the trial Court’s conclusion that the 1st defendant might have been the one who had a motorcycle accident while trying to escape with the victim on a motorcycle and got burnt by the silencer of that motorcycle. I fail to see anything wrong with the conclusion of the trial Court thereat. It is the law that a Court has the latitude to draw inferences from other facts established and deducing a logical sequence there from. See Stanbic IBTC Bank vs. Longterm Global Capital Ltd & Co (2021) LPELR 55610 (CA), BGL Plc & Ors vs. FBN (2021) LPELR – 54655 (CA), Amuzie vs. The State (2014) LPELR – 22830 (CA), Ude Dibia vs. The State (1976) 1 SC 133. The evidence of the Pw2 on how they had an accident on a motorcycle, how the silencer of the motorcycle injured the 1st defendant and herself coupled with the physical appearance of the 1st accused person as to how (1st accused person) was seen with burns which he claimed to have sustained otherwise and was treated by a clinic which denied ever treating him, led the trial Court to infer that he was actually that motorcycle rider, that kidnapper who unfortunately or fortunately was involved in an accident and got his foot burnt from the said accident as narrated by the Pw2 and coupled with the fact that Pw2 identified him as one of the kidnappers, translates to one irresistible inference that he was indeed one of the kidnappers, and the lower Court under such circumstances cannot in the least be faulted, and I so hold. From all the above permutations, it is clear that the answer to whether appellant kidnapped Pw2 is in the affirmative.
Having arrived at the above conclusion, the second count of the charge bordering on conspiracy can equally be said to have been proved. This is because conspiracy is said to be complete where there are acts on the part of the accused person that leads the Court of trial to conclude that he and others were engaged in accomplishing a common objective. PW2 stoutly without any hesitation pointed at the appellant as one of the kidnappers, and conspiracy being that agreement between two or more persons for the doing of an unlawful act, and in this case kidnapping, the count of conspiracy to kidnap labeled against the appellant had been proved to the hilt.
All said and done, Appellant has not shown me why I should interfere with the masterpiece of a judgment of the lower Court and to that extent his appeal must fail.
In the result, I fail to see any iota of merit at all in the appeal and accordingly dismiss the same. I must add that to me the lower Court was too magnanimous in his sentencing to the point of doing injustice to the state. Kidnappers are waging war against innocent and hardworking citizens of this nation, the least we can do is to fight back, but fortunately for the appellant, there is no cross-appeal on that point. The inevitable conclusion is that this appeal fails for want of merit, and I hereby dismiss the same.
Appeal dismissed.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: My learned brother, Hamma Akawu Barka, JCA, obliged me with an advance copy of the lead judgment which has just been delivered. I completely agree with the reasoning and conclusion reached by His Lordship in the resolution of the issues thrust up for determination in the appeal.
Our adversary criminal justice system is accusatorial. This is in accordance with Section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), which provides that every person charged with a criminal offence shall be presumed innocent until he is proved guilty. The necessary corollary of this presumption of innocence is that the prosecution has the onus of proving the commission of the crime charged beyond reasonable doubt as stipulated in Section 135 of the Evidence Act, 2011.
Though the law is that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt; it however connotes proof of the crime charged with the certainty required in a criminal trial. This certainty is accomplished by proving the essential elements of the offence charged and establishing that it is the accused person that committed the crime. In aliis verbis, proof beyond reasonable doubt does not mean or import beyond any degree of certainty. It should be a proof that excludes all reasonable inference or assumption except that which it seeks to support. It must have clarity of proof that is readily consistent with the guilt of the accused person. See STATE vs. ONYEUKWU (2004) 14 NWLR (PT. 893) 340 at 379-380.
As demonstrated and explicated in the lead judgment, the evidence adduced by the prosecution established the essential ingredients of the offences charged beyond reasonable doubt. Having also read the Records of Appeal and the briefs of argument filed and exchanged by the parties, I entirely agree with the indubitable conclusion in the lead judgment that this appeal is devoid of merit. Therefore, I equally join in dismissing the appeal. The judgment of the High Court of Kogi State in CHARGE NO. IDHC/24C/2018 delivered on the 19th day of June, 2019 is hereby affirmed.
Appeal dismissed.
BATURE ISAH GAFAI, J.C.A: I have before now read in draft the judgment just delivered by my learned brother Barka, JCA. I am in agreement with the reasonings expressed therein and the conclusions reached thereby.
If I may add, although by way of emphasis only, that it seems to me too that the arguments canvassed for the Appellant on grounds (i) and (iii) of the Amended Notice of Appeal all appear to be based on the archaic notion that technical proof of an offence ranks on the same or higher level with substantial, reasonable proof of an offence. The compelling legal regime in proof a charge has for long been consistently settled that if the evidence against an accused is so compelling in the affirmative that any or all other evidence or inference to the contrary falls short of upsetting the affirmative reasonably, then the offence in the charge is proved. In other words, the duty of the Prosecution is no more than to adduce sufficient evidence against the accused which also does not accommodate reasonable doubt in his favour. The parameter of what amounts to proof beyond reasonable doubt is not one that is akin to mathematical or computer accuracy but one that is gauged upon the criteria provided in Section 135 (1) of the Evidence Act 2011 that:
“If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.”
See Nwankwoala vs. FRN (2018) LPELR- 43891 (SC) – SC/783/2015, The State vs. Ahmed (2020) LPELR – SC.511/2016.
From the totality of the evidence adduced by the Prosecution, it is reasonable and safe to arrive at the finding of guilt against the Appellant as done by the trial Court and as affirmed in the lead judgment.
There is nothing to add to the resolutions of the other aspects of the appeal as comprehensively done by my Lord in the lead judgment. In effect, I too dismiss this appeal for lacking in merit.
Appearances:
S.O. Ikani, with him, Ajayi Ilesanm iFor Appellant(s)
Habib Abdullahi (DPP), with him, Ojoma J. Elubi (SC) For Respondent(s)