ASOMUGHA EMEKA EMMANUEL v. THE STATE (2019)

ASOMUGHA EMEKA EMMANUEL v. THE STATE

(2019)LCN/13940(CA)

In The Court of Appeal of Nigeria

On Monday, the 29th day of July, 2019

CA/E/52C/2017

RATIO

CRIMINAL LAW AND PROCEDURE: EVIDENCE: BURDEN OF PROOF ON THE PROSECUTION IN A CRIMINAL TRIAL OR MATTER

The law is long settled that in a criminal trial, the prosecution is duty bound to prove his case beyond reasonable doubt. This is the import of Section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which presumes an accused innocent until he is proven guilty. The burden placed on the prosecution is not discharged until the guilt of the accused person is properly established. See DANBABA V.THE STATE (2018) 11 NWLR PART 1631 AT PAGE 444 -445; IDEMUDIA V. THE STATE (1999) 7 NWLR (Pt. 610) 202 at 215 F-G; ESANGBEDO vs. THE STATE (1989) 4 NWLR (Pt. 113) 57. PER ABUBAKAR SADIQ UMAR, J.C.A.

CRIMINAL LAW AND PROCEDURE: KIDNAPPING: THE ESSENTIAL INGREDIENTS OF THE CRIME OF KIDNAPPING

In order to secure a conviction for the offence of kidnapping, from the community reading of Sections 351 (b) and 315(2) of the Criminal Law Code Cap 30, Laws of Enugu State 2004, the prosecution is duty bound to prove the following ingredients beyond reasonable doubt:
a. That a person was confined;
b. That dangerous or offensive weapon was used in the commission of the offence;
c. That the accused person took part in the kidnapping. PER ABUBAKAR SADIQ UMAR, J.C.A.

CRIMINAL LAW AND PROCEDURE: ALIBI: THE DUTY OF THE ACCUSED AND DEFENSE AS REGARDS ALIBI

The law is trite that it is the duty of the accused who intends to rely on alibi as a defence, to furnish the police with sufficient particulars of same. He must state his whereabouts and those persons with him at the material time. It is then, that it is left for the prosecution to disprove same as failure to investigate the Alibi may lead to the acquittal of the accused. See OLAIYA V THE STATE (2010) LPELR ? 2559 (SC).
However, there are some instances where the failure of the prosecution to investigate the defence of alibi raised by an accused person would not be fatal to its case. In PATRICK NJOVENS & ORS V. THE STATE (1973) LPELR ? 2042 (SC), Coker, JSC (of blessed memory) held thus:
“… There is nothing extra ordinary or esoteric in a plea of alibi. Such a plea postulates that the accused person could not have been at the scene of the crime and only inferentially that he was not there. Even if it is the duty of the prosecution to check on a statement of alibi by an accused person and disprove the alibi or attempts to do so, there is no inflexible and/or invariable way of doing this if the prosecution adduces sufficient and accepted evidence of crime at the material time surely his alibi is thereby logically and physically demolished.” (Underlining mine for emphasis)
 PER ABUBAKAR SADIQ UMAR, J.C.A.

APPEAL : WHETHER AN APPELLATE COURT CAN INTERFERE IN THE FINDINGS OF A TRIAL COURT

The law is trite that where a trial Court has dutifully, efficiently and properly evaluated the evidence adduced before it, the Appellate Court will not interfere. This Court will therefore only interfere where it is apparent on the printed record that the findings of the trial Court cannot be supported or are not proper conclusions and inferences to be drawn from the evidence. In CHIEF VICTOR WOLUCHEM & ORS V. CHIEF SIMON GUDI (1981) LPELR 3501 (SC), My Lord Nnamani, JSC observed as follows:
“It is now settled that if there has been proper appraisal of evidence by a trial Court, a Court of Appeal ought not to embark on a fresh appraisal of the same evidence in order merely to arrive at a different conclusion from that reached by the trial Court. Furthermore, if a Court of trial unquestionably evaluates the evidence then it is not the business of a Court of Appeal to substitute its own views for the views of the trial Court…….” It therefore follows that, where the findings of fact by the trial Court are amply supported by the accepted evidence on record, and such evidence are neither perverse nor unreasonable, this Court will not interfere with the.” PER ABUBAKAR SADIQ UMAR, J.C.A.

 

Before Their Lordships

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria

ABUBAKAR SADIQ UMAR Justice of The Court of Appeal of Nigeria

Between

ASOMUGHA EMEKA EMMANUEL Appellant(s)

AND

THE STATE Respondent(s)

ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Enugu State High Court, Aguobu-Owa Judicial Division, delivered by N.N. Neboh J., on the 14th day of July, 2016 wherein the learned trial Judge found the Appellant guilty of the offence of kidnapping and sentenced him to death by hanging.

BRIEF FACTS OF THE CASE
By an information filed at the Court below by the Attorney General of Enugu State on behalf the State on the 9th day of October, 2014, the Appellant and one Stephen Ekene Akpata were charged with the offence of kidnapping contrary to Section 315(2) of the Criminal Code Amendment Law of Enugu State 2009. (See page 17 of the record).

On the 23rd day of March, 2015, the Court below, on the application of the Attorney General of the State struck out the name of the said Stephen Ekene Akpata from the charge leaving only the Appellant?s name as the sole defendant in the case. (See page 43 of the record). In a bid to establish the guilt of the Appellant, the prosecution called three witnesses and tendered two exhibits. The case of the prosecution as gleaned from the record is that the victim, one Chidinma Onoduamu who testified as PW2 was cooking at night on Wednesday, 6th November, 2013 and that when she went to dispose dirty water outside the kitchen, two young men came to her armed with a gun which they stuck in her side and ordered her to accompany them to their vehicle. According to the victim?s account, they threatened to shoot her if she shouted, so she went with them to the vehicle, got in and they drove off. It is also the case of the prosecution that when the mother of the victim came to the backyard to see how the cooking was getting on, she did not see the victim and she reported the situation of things to her husband. Both parents came to the backyard and saw the pot the victim was cooking with, overturned. The victim according to her account said she was taken to an uncompleted building that night and on Thursday morning when she tried to escape, she saw the accused person and other boys seated on the ground and that they accused her of trying to escape, subsequently blindfolded her, bound her hands and feet and began to beat her. According to the prosecution, on Monday morning, her father was informed and he agreed to pay the sum of N200, 000.00 (Two Hundred Thousand Naira) as ransom for her release. By 1 a.m. on Tuesday, the victim was said to have regained her freedom from her abductors after her father paid the sum demanded.

The Appellant on the other hand called three other witnesses, DW1 – DW3 and testified for himself as DW4. The case of the Appellant was that on the 6th day of November, 2013, he was not in Akama ? Oghe when the incident allegedly took place. From his account, he was at Nsukka throughout on the 6th and 7th day of November, 2013 working for one Engr. Uju at Access Bank, Nsukka then from 8th ? 9th November 2013, he worked at Access Bank, Abakpa Nike, Enugu and that on the 16th November, 2013, he received an invitation to play in a football match in the village and he did so and on the 17th November, 2013, he was arrested by the police. It is the case of the Appellant that he was tortured by the police and that the police tried to compel him to agree that he was one of the persons who kidnapped the victim but in his account, he denied the allegation and he informed the police of his whereabouts and who he was with. The Appellant stated further that he urged the police to confirm the veracity of his assertions and that even when the said Engineer Uju came to the police station, he was not allowed by the police to make a statement.

At the close of trial and the final addresses of both counsel, the learned trial judge at page 83 of the record held that the prosecution proved all the ingredients of the offence charged and thereafter, sentenced him to death by hanging.

Miffed by the decision of the Court below, the Appellant on the 7th day of July, 2017 filed a Notice of Appeal dated the same date. The said Notice of Appeal at pages 86 ? 90 of the record contains seven grounds of appeal.

In line with Rues of this Honourable Court, CHUKA C. MACHIE ESQ., who settled the Appellant?s brief dated 2/4/2019 and filed on 3/4/2019 distilled four issues from the seven grounds of appeal for the determination of this appeal to wit:
1. Whether the benefit of doubt raised by the failure of the police to investigate the ?alibi? raised by the defendant/appellant ought not to be resolved in favour of the appellant? (Distilled from Ground 1).

2. Whether the learned trial Court?s misapprehension of the Appellant?s defence and the accounts of his movement from 6/11/13 ? 10/11/2013 did not occasion a miscarriage of justice upon the appellant. (Distilled from Ground 2).
3. Whether the failure of the appellant to prove his innocence automatically established the case of the prosecution in the presence of two conflicting pieces of evidence as to the whereabouts of the appellant on 7/11/2013.
4. Whether the prosecution did not fail to attain the requisite standard of proof prescribed in order to secure the appellant?s conviction for the offence with which he was charged.

CHIEF M. Eq. EZE, the Attorney ? General of Enugu State who on the other hand settled the Respondent?s brief dated 3/5/2019 and filed on 13/5/2019 distilled two issues for the determination of this appeal to wit:
1. Whether the prosecution proved the case of kidnapping against the Appellant?
2. Whether the defence of alibi availed the Appellant

The appeal was taken on the 3rd day of July, 2019 wherein counsel to both parties adopted their respective briefs and made oral adumbrations in respect of their various postures and contentions for the determination of the instant appeal.

A perusal of the issues distilled by counsel would reveal that all can be crystalized and effectively treated under the below stated issue to wit:
?Whether the prosecution proved the guilt of the Appellant beyond reasonable doubt to warrant a conviction for the offence charged

APPELLANTS COUNSEL ARGUMENTS
The grouse of the Appellant?s complaint as submitted by his counsel is that the learned trial judge ought to have resolved the benefit of doubt raised by the Appellant?s defence of alibi in his favour especially as the police failed and/or neglected to investigate same notwithstanding that the alibi was timeously and supplied the necessary information that could have assisted the police in their investigation in that regard. On the duty of the police to investigate the defence of alibi raised timeously by an accused person, learned counsel referred this Honourable court to the case of ONUCHUKWU & ORS V STATE (1998) 4 S.C. PAGE 49.

It is also the submission of counsel that the Appellant as early as 17/11/2013 when he was arrested and in an extra judicial statement recorded by the police for him, denied his involvement in the crime, gave his whereabouts on 6/11/2013, the persons who were with him and the place where he was, i.e. Nsukka Branch of Access Bank Plc., where he did renovation works. Counsel submitted further that aside the unpunctured alibi which the Appellant raised at the earliest opportunity before the police; the police through one Corporal Ebere Morris who testified as PW3 stated that the accused person raised an alibi, that on the date of the kidnapping, he was at Nsukka. The alibi was checked. His GSM phone number was sent to service provider MTN for call, data, record and location of calls?. In his further submission, counsel made reference to the testimony of PW3 and contended that the presumption of Section 167(d) of the Evidence Act is applicable to the case of the prosecution when PW3 failed to state evidence of the said report of their investigation into the defence of alibi raised by the Appellant.
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Learned counsel to the Appellant also submitted that from the extra-judicial statement of the victim who testified as PW2, as well as her evidence in Court, it could not be said without reasonable doubt that she had any close contact to be able to say with exactitude, that the Appellant was in the midst of the three other guys sitting on a grave, more so, as PW2 never had any exchange of words or gesture with the Appellant.

It is the contention of learned counsel to the Appellant that the Court below erred when it misapprehended the defence of the Appellant and required him to establish his innocence by proving his whereabouts on the 7/11/2019 notwithstanding that the Appellant had already given evidence of his whereabouts on the said date.

Counsel submitted that the evidence of DW1 and DW2 who testified that they were with the Appellant during the periods were not discredited yet the learned trial judge shut his eyes to these vindicating pieces of evidence offered for and by the Appellant and the Court below without any basis for its preference of the victim?s ipse-dixit evidence that she saw the Appellant sitting on the ground.

Learned counsel to the Appellant submitted that the finding of the trial Court that ?the accused person in his statement did not account for his movements on Thursday 7th November, 2013 which is when the victim said she saw the accused person? amounts to the Court requiring the Appellant to prove his innocence contrary to the presumption of innocence that enure him under the sacrosanct provisions of our the Constitution.

On the whole, learned counsel submitted that a critical analysis of the evidence led by the prosecution witnesses would reveal that the essential elements required for the conviction of the offence of kidnapping were not established beyond reasonable doubt. He therefore urged this Court to resolve this appeal in favour of the Appellant.

RESPONDENTS ARGUMENTS
Converse to the submissions and arguments of learned counsel to the Appellant, the Respondent counsel submitted that in a charge of kidnapping, the prosecution has the burden of proving beyond reasonable doubt that there is false imprisonment and the taking out of Nigeria of the person imprisoned by the defendant or the taking in Nigeria of the person imprisoned by the defendant in a manner that the victim shall not be able to apply to the court for his release or to disclose the place and the fact of his imprisonment to anyone or to be accessible to anyone entitled. He referred this Court to the case of YUSUF V STATE (2012) ALL FWLR (PT. 641) 1478 AT 1506.

It is the submission of counsel that from the evidence of the prosecution witnesses, there is no doubt that PW2 was kidnapped with gun on 6/11/2013 at Akama Oghe, Ezeagu LGA, Enugu State. Counsel referred this Court to the uncontradicted testimonies of PW2, the victim, at page 47 of the record, that of PW1, the father of the victim at pages 45 ? 46 of the record and that of PW3, the IPO, at pages 49 ? 50 of the record. Counsel submitted further that PW2 knew the Appellant before the incident and that the question of identification or improper identification does not arise in this case.

Counsel submitted that the learned trial judge in his judgment fully analyzed the evidence of the witnesses and found out that the elements of kidnapping under Section 315(2) of the Criminal Code Amendment Law of Enugu State 2009 were fully established by the prosecution. Counsel referred this Court to pages 75-77 of the record.

On the issue of the defence of alibi raised by the Appellant, learned counsel to the Respondent submitted that the said defence was fully investigated by the police and this could not avail the Appellant. He referred this Court to pages 49 ? 50 of the records. In his further submission, counsel contended that assuming but without conceding that the police did not fully investigate the Appellant?s defence of alibi, the said defence would not avail him as he was fully fixed to the scene of the crime by the testimony of PW2. Counsel argued that when an eye witness fixed a person to the scene of crime, the defence of alibi collapses. He cited the case of DAGAYYA V STATE (2006) 7 NWLR (PT. 980) 637.

On the whole, counsel submitted that the Court below fully evaluated the evidence of the parties before arriving at its decision in this case and that the decision was neither perverse nor led to a miscarriage of justice. He finally urged this Court to affirm the conviction and sentence of the Appellant.

RESOLUTION
The law is long settled that in a criminal trial, the prosecution is duty bound to prove his case beyond reasonable doubt. This is the import of Section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which presumes an accused innocent until he is proven guilty. The burden placed on the prosecution is not discharged until the guilt of the accused person is properly established. See DANBABA V.THE STATE (2018) 11 NWLR PART 1631 AT PAGE 444 ? 445; IDEMUDIA V. THE STATE (1999) 7 NWLR (Pt. 610) 202 at 215 F-G; ESANGBEDO vs. THE STATE (1989) 4 NWLR (Pt. 113) 57.

In order to secure a conviction for the offence of kidnapping, from the community reading of Sections 351 (b) and 315(2) of the Criminal Law Code Cap 30, Laws of Enugu State 2004, the prosecution is duty bound to prove the following ingredients beyond reasonable doubt:
a. That a person was confined;
b. That dangerous or offensive weapon was used in the commission of the offence;
c. That the accused person took part in the kidnapping.

On whether the Court below was right in convicting the Appellant for the offence of kidnapping in the light of the defence of alibi raised by the Appellant is an issue to be decided after revising the evidence adduced at trial. The Respondent at the Court below called three witnesses and tendered two exhibits in the discharge of its evidential burden.

As gleaned from the records, after the disappearance of his daughter, PW1 lodged a complaint at the anti-kidnapping squad of the Enugu State police command on the 9th day of November, 2013, informing them about his missing daughter. PW1 later volunteered another statement on the 12th day of November, 2019 after he was able to secure his daughter?s release. His statements can be found at pages 9 ? 11 of the records. In his statements, he gave an account of everything that transpired and how he eventually secured his daughter?s release from the hands of her alleged abductors. It is important to state that PW1 only exchanged telephone conversations with the kidnappers and never had any contact with them until the Appellant who was identified by PW2 was arrested by the police. I have examined the testimony of PW1 at pages 45 ? 46 of the record and I am of the opinion that the said testimony is only helpful to the extent that PW2 was taken away from 6/11/2013 ? 12/11/2013 and that an amount in the tune of N200, 000. 00 (Two Hundred Thousand Naira Only) was paid as ransom to secure her release. Regarding the identity of the alleged abductors, from the testimony of PW1, it is crystal clear that he had no idea regarding same.

It is instructive to state at this stage that from the fact of this case, the fulcrum of the prosecution?s case lies on the evidence of PW2 being the only person who allegedly came in contact with her abductors. I would like to begin the examination of PW2?s evidence right from when she made her statement to the police after she was said to have been released by her abductors. In her extra judicial statement at page 12 of the record, she gave account of what transpired on the day she was abducted as follows:
?On Wednesday night being the 6th day of November 2013 around 7:30pm, I was cooking food in the kitchen, so I went out to pour dirty water outside, two guys surrounded me with a gun and told me I should not talk, that if I move dey (sic) will kill me. They carry me to their car they came with. They pointed the gun on my waist while I walk and the gun on my waist while I walk and follow them to the car (sic). I cannot don?t (sic) know the kind of car, and I was unable to know the colour. I was force (sic) into the car and they drove away. They took me to one uncompleted building, one upstair. They is a grave in the compound. From where they drove the car like 20 minutes before they drop me at the uncompleted building they took me to, I saw three other guys seating on a grave on Thursday morning when I want to run, I saw a guy I know called Emmanto by name, and when I saw them, they ask me if I want to run I told them I want to urinate, they started beating me and tried my face with rope. Since that Thursday, I did not see anybody face, so on Monday been 12 November they told me that my father did not want to pay them they will kill me if my father did not want to pay them. They called my father and my father told them that the only money he have is 200,000 they told him to bring it. So around 7:30pm on that Monday they told me that my father is coming to pay them that am going on that Monday so one of the guys is with me. When the other guys went to collect that money which my father give them. When they came back they told me that my father have giving them that money so they carry me for back and took me to road side and tell me to start running if I look that the back they will kill me and they gave me a touch which I use to go home. On that Saturday morning I was hearing police voice say pack well since that Wednesday they took me to one uncompleted building. I did not go any were till my father pay money after paying money they took me to that roadside. The Emmanto which I see I use to see him in the street only at Amaka Oghe were live. I don?t know where he live but I use to saw people calling him Emmanto. I don?t know where he come from or were he live. (SIC)?

PW2 in her testimony under examination-in-chief at page 47 of the record, she gave almost the same account of what happened as previously stated in her statement to the police. However, during cross-examination, she reiterated the fact that she sees the Appellant regularly in Akama Oghe as they both live there and that she hears people calling him Emmanto. I also want to add that the Appellant gave a confessional statement admitting knowing the victim. The said confessional statement was tendered by PW3 and admitted as Exhibit ?A? without any objection by neither the Appellant nor his counsel. (See page 49 of the record). In the Appellant?s extra judicial statement at pages 13 ? 14 of the record, he testified thus:
?I know Chidinma Fidelis. The father Oga Fidel is selling medicine. I sabi the time she was born.?

PW3, the investigating police officer testified at pages 49 ? 51 of the record. The excerpts of PW3?s statement are as follows:
?I know the accused person. I am the police officer who investigated this case. The accused person was arrested in connection with the kidnapping of one Chidinma which took place on 6/11/2013 after a ransom has being (sic) paid for the release of the victim. The victim was invited to Distress Call Base Enugu State Police Command. She made a statement wherein she identified one of the person that took her away. She said she saw one of them while she was kept hostage whom she know as Emmanto. Based on this on 17/11/2013 the said Emmanuel Emeka Asomugba was arrested by a team of Anti-Kidnaping Squad and brought to the base?.

..the accused person raised an alibi that on that date of the kidnapping he was at Nsukka. The alibi was checked. His GSM phone No. was sent to service provider MTN for call data record (C.D.R) and location of calls. Effort mad (sic) to reach Engr. Ugu whom the accused claimed he worked under at Nsukka Access Bank yielded no dividend as Engr. could reached.”

PW3 during his evidence tendered two exhibits and same were admitted as Exhibit ?A? (the extra judicial statement of the Appellant made to the police) and Exhibit ?B? (the police report) without any objection in the presence of the Appellant and his counsel. The Appellant?s counsel during cross-examination of PW3, made efforts to impugn on the veracity of his testimony and also to establish the fact that the police abdicated its duty by not investigating the timeous defence of Alibi raised by the Appellant. The Appellant and his witnesses who testified as DW1 to DW4 testified at pages 54 ? 69 to substantiate the Appellant?s defence of alibi.

The law is trite that it is the duty of the accused who intends to rely on alibi as a defence, to furnish the police with sufficient particulars of same. He must state his whereabouts and those persons with him at the material time. It is then, that it is left for the prosecution to disprove same as failure to investigate the Alibi may lead to the acquittal of the accused. See OLAIYA V THE STATE (2010) LPELR ? 2559 (SC).
However, there are some instances where the failure of the prosecution to investigate the defence of alibi raised by an accused person would not be fatal to its case. In PATRICK NJOVENS & ORS V. THE STATE (1973) LPELR ? 2042 (SC), Coker, JSC (of blessed memory) held thus:
“… There is nothing extra ordinary or esoteric in a plea of alibi. Such a plea postulates that the accused person could not have been at the scene of the crime and only inferentially that he was not there. Even if it is the duty of the prosecution to check on a statement of alibi by an accused person and disprove the alibi or attempts to do so, there is no inflexible and/or invariable way of doing this if the prosecution adduces sufficient and accepted evidence of crime at the material time surely his alibi is thereby logically and physically demolished.” (Underlining mine for emphasis)
Much fuss, with respect, has been raised in the Appellant’s Brief, about the failure of the prosecution, to investigate the defence of Alibi of the Appellant. It is trite that once an accused person is fixed at the scene of the crime, his defence of alibi must fail. Thus once the PW2 who was the victim establish that she saw the Appellant at the location where she was kept, the defence of alibi by the Appellant raised the straight issues of credibility to wit; whether the evidence of the witnesses is believable and if believed, the alibi raised is logically demolished or fizzles into thin air and so doomed. PW2 in her testimony as lengthily reproduced in the preceding part of this judgment fixed the Appellant as one of her abductors. She testified that she knows the Appellant before the incident and that she sees him regularly in Akama Oghe where they both lived and that she usually hears people calling him Emmanto.
?
I am minded to state that the apart from the fact that PW2 mentioned the name of the Appellant at the point of making her statement on the date of her release, her testimony in this regard was also not contradicted on cross-examination. This only leaves the Court with no doubt that the Appellant was properly identified by PW2 as one of her abductors. The position of the law where evidence is unchallenged or uncontroverted is that such evidence will be accepted as proof of a fact it seeks to establish. See KOPEK CONSTRUCTION LTD. V EKISOLA (2010) LPELR ? 1703 (SC). The trial Court is entitled to rely and act on the uncontroverted or uncontradicted evidence of PW2 as to the identity of the Appellant.

Learned counsel to the Appellant vehemently submitted that the learned trial judge erred in law when he held at page 78 of the record that ?the accused person in his statement did not account for his movements on Thursday 7th November, 2013 which is when the victim said she saw the accused person.” I do not agree with counsel that the comments of the learned trial judge is tantamount to asking the accused person to prove his innocence in the light of the constitutional right to presumption of innocence that enures him under our ground norm. The law is trite that the onus of establishing Alibi, being a matter within the personal knowledge of an accused person, lies on him. It is not enough for the accused person to say to the Court that he was not at a particular place away from the scene of the crime. That he has to prove his assertion. That even if the police have failed to investigate such assertion, the accused person, has the onus of adducing evidence on which he relies for his defence of alibi. So, it can be seen that the failure of the police to investigate does not automatically mean failure of the prosecution’s case. There is a rider which places such onus on the accused person on the balance of probability. See IDIOK V THE STATE (2008) LPELR ? 1423 (SC).

Notwithstanding the evidence of the prosecution witnesses, the learned trial judge as he was duty bound considered and evaluated the defence of the Appellant and the testimonies of his witnesses before reaching a conclusion that the offence was proved against him beyond reasonable doubt. The learned trial judge committed page 81 of the record to evaluate the Appellant?s defence of alibi. The learned trial judge at page 81 held as follows:
“I shall therefore proceed to examine the evidence of the witnesses the accused person called to establish his alibi.
The accused person claimed to have left Enugu with one Daniel and his Oga, Engineer Uju who carried them in his jeep to Enugu. In cross examination the said Daniel (DW2) testified as follows-
Q: The accused person told the police he was at Akama Oghe that weekend the offence occurred?
A: I do not know
Q: From your evidence you do not know much about the activities of the accused person?
A: I do not know anything about his activities.
The accused person called his mother?s sister (DW4) (sic) and in an effort to help her nephew she testified as follows ? ?The accused person retuned from his place of work at Nsukka to my house on a Saturday evening. He left my house on Saturday and travelled home to Akama to collect some food items.?
The accused person did not mention her name in his evidence in Court but in his statement to the police he stated that he was in his mother?s sister?s place in Abakpa Nike on Saturday 9th November, 2013 around 6 am before he went to work at Access Bank PLC around 9 am in the morning.
In cross examination DW4 (sic) was asked ?
Q: Will it surprise you to learn that the accused in his statement said he came to your place at 6 am?
A: it was in the evening that the accused person left my house at Abakpa.
I am not convinced that the evidence of the witnesses the accused person called to establish his alibi have helped him. DW2 confessed he did not know anything about the activities of the accused person while DW4 (sic) testified as to the whereabouts of the accused person on 9th November, 2013.”

The law is trite that where a trial Court has dutifully, efficiently and properly evaluated the evidence adduced before it, the Appellate Court will not interfere. This Court will therefore only interfere where it is apparent on the printed record that the findings of the trial Court cannot be supported or are not proper conclusions and inferences to be drawn from the evidence. In CHIEF VICTOR WOLUCHEM & ORS V. CHIEF SIMON GUDI (1981) LPELR ? 3501 (SC), My Lord Nnamani, JSC observed as follows:
“It is now settled that if there has been proper appraisal of evidence by a trial Court, a Court of Appeal ought not to embark on a fresh appraisal of the same evidence in order merely to arrive at a different conclusion from that reached by the trial Court. Furthermore, if a Court of trial unquestionably evaluates the evidence then it is not the business of a Court of Appeal to substitute its own views for the views of the trial Court…….” It therefore follows that, where the findings of fact by the trial Court are amply supported by the accepted evidence on record, and such evidence are neither perverse nor unreasonable, this Court will not interfere with the.”
Having fastidiously perused the record compiled and transmitted to this Honourable Court and the decision of the trial Court as contained in pages 72 ? 84 of the record, I am of the unflinching opinion that that the learned trial judge properly evaluated the facts placed before it and displayed a thorough understanding of the basic principles of our criminal jurisprudence in reaching its conclusion.

On the whole, the testimonies of the prosecution witnesses on the fact that PW2 was confined, that dangerous weapon was used in the commission of the offence and that the Appellant took part in the kidnapping were in my opinion not discredited and the learned trial judge was right in believing the prosecution?s witnesses? testimonies over that of the Appellant and his witnesses. The law is firmly settled to the effect that it is the primary duty of the trial judge who saw and heard the witnesses who gave evidence in a case before him and watched their demeanors in the witness box, to receive, perceive and evaluate those pieces of evidence. The making of finding of facts involves both the perception and evaluation of evidence.

In my final analysis, I agree with the learned trial judge that the Respondent discharged the onus and the standard of proof required of it in order to secure a conviction of the offence charged. All they need do is prove the guilt of the Appellant beyond reasonable doubt and the law has crystallized to the effect that beyond reasonable doubt does not mean beyond every reasonable shadow of doubt. Once the evidence adduced by the parties are placed on the scale of justice and the Court is satisfied that the guilt of the Appellant has been proved beyond reasonable doubt, then a conviction and sentencing should follow.

On the whole, I hold that this appeal is unmeritorious and same is hereby dismissed. Accordingly, the judgment of the trial Court Per N.N. Neboh J. delivered on 14th July, 2016 convicting the Appellant for the offence of kidnapping contrary to Section 315(2) of the Criminal Code Amendment law of Enugu State 2009 and sentencing him to death by hanging is hereby affirmed.

IGNATIUS IGWE AGUBE, J.C.A.: I had the privilege of reading the lead Judgment of my Learned brother A.S Umar, JCA in advance and I agree completely with reasoning and conclusion that the prosecution proved the charge of kidnapping against the Appellant beyond reasonable doubt hence the Appellant’s conviction and sentence to death by the Learned Trial Judge is justified and same is accordingly also affirmed by me.

The Appeal is therefore unmeritorious and same is hereby dismissed with the ignominy it deserves.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I agree.

Appearances:

Chuka C. Machie, Esq.For Appellant(s)

Chief M. E. Eze (Attorney-General of Enugu State)For Respondent(s)

 

Appearances

Chuka C. Machie, Esq.For Appellant

 

AND

Chief M. E. Eze (Attorney-General of Enugu State)For Respondent