AYOTUNDE v. STATE (2021)

AYOTUNDE v. STATE

(2021)LCN/15144(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Thursday, March 04, 2021

CA/MK/1C/2020

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Between

SUNDAY AYOTUNDE APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

CONDITION THAT MUST BE MET FOR CIRCUMSTANTIAL EVIDENCE TO GRANT A CONVICTION

It is trite law, that for circumstantial evidence to grant a conviction, it must lead only to the guilt of the accused but where there are possibilities that someone could commit such offence, the accused person cannot be convicted of the offence, as held in ADESINA V. STATE (2012) 14 NWLR (PT. 1321) 429 SC. PER YARGATA BYENCHIT NIMPAR, J.C.A.

POSITION OF THE LAW AGAINST PROLIFERATION OF ISSUES FOR DETERMINATION

After a careful review of the Notice of Appeal, the Record of Appeal and the respective briefs of learned Counsel on both sides which donated 4 issues for determination in this appeal. The said 4 issues are affected by prolixity because issues 1, 2 and 3 are partly distilled from ground 4, issues 1 and 2 are both distilled from grounds 1, 2, 3 and 4. This is out rightly against the Rules of Practice in an Appellate Court where the principle has been settled in the case of APATA V. OLANLOKUN & ANOR (2013) LPELR-20938(SC) thus: “This Court has stated and restated that it abhors the proliferation of issues where only a few issues would determine the appeal. Ogbuagu, J.S.C., in G.K.F. INVESTMENT NIG. LTD. v. NIGERIA TELECOMMUNICATIONS PLC (2009) 15 NWLR (PART 1164) 344 put it simply this way, “I need to stress that this Court discourages the proliferation of issues.” Musdapher J.S.C., (as he then was) was more emphatic. In OMEGA BANK (NIG.) PLC. v. O.B.C. LTD (2005) 8 NWLR (PART 928) 547 he stated thus: “This Court has on several occasions condemned the proliferation of issues in briefs of argument. It is not the number of issues for determination formulated that determines the quality of a brief or that determines the success of an appeal.” Edozie, J.S.C., in IBRAHIM V. OJOMO (2004) 4 NWLR (PART 862) 89 was just as emphatic when he said as follows: “Prolixity or proliferation of issues is not ideal as it tends to obscure the core issues to be determined and tends to reduce the issue to trifles. Appeals are not won on large number or quality of grounds of appeal but on the quality of the content of the grounds of appeal and issues.” See also MOZIE & ORS V. MBAMALU & ORS (2006) 15 NWLR (PART 1003) 466; UGO V. OBIEKWE (1989) 1 NWLR (PART 99) 566; ANON LODGE HOTELS LTD v. MERCANTILE BANK OF NIGERIA LTD. (1993) 3 NWLR (PART 284) 721.” Per ALAGOA, J.S.C See also the case of NDUUL V. WAYO & ORS (2018) LPELR-45151 (SC) and INEGBEDION V. SELO-OJEMEN & ANOR (2013) LPELR-19769 (SC). It is settled that no ground of appeal can generate 2 issues for determination. See SOCIETY BIC S.A. & ORS V. CHARZIN INDUSTRIES LTD (2014) LPELR-22256(SC) where the apex Court held thus: “…framing two issues from one ground of appeal is a violation of the said principle. See Agu v. Ikewibe (1991) 3 NWLR (Pt. 180) 385. A ground of appeal should not be split to raise two issues. See also A-G Bendel State v. Aideyan (1989) 4 NWLR (Pt. 118) 646; Ugo v. Obiekwe & Anor (1989) 1 NWLR (Pt. 99) 566; Adelaja v. Fanoiki (1990) 2 NWLR (Pt.131) 137. The two issues ought to have been ignored or struck out as incompetent as it is not the duty of the Court to make a choice for the appellant between the two issues allegedly framed from one ground of appeal.” Per NGWUTA, J.S.C. See also the case of MFA & ANOR V. INONGHA (2014) LPELR-22010 (SC) and NGENE V. OKOH & ANOR (2018) LPELR-44946(CA). PER YARGATA BYENCHIT NIMPAR, J.C.A.

WHETHER AN APPELLATE COURT HAS NO DISCRETION TO EITHER ADOPT THE ISSUES FORMULATED FOR DETERMINATION BY THE PARTIES OR ALTERNATIVELY FORMULATE SUCH ISSUE(S) IT BELIEVES WOULD ADEQUATELY DETERMINE THE GRIEVANCE IN THE APPEAL

… the Court shall formulate 2 issues for determination on the authority of EMEKA V. STATE (2014) LPELR-23020 (SC) which held as follows: “It is rather a triable argument or merely frivolous for the appellant to contend that the appellate Court, in considering an appeal before it has no discretion to either adopt the issues formulated for determination by the parties or alternatively formulate such issue(s) it believes would adequately determine the grievance in the appeal. Recently, what this Court said in AGBAREH v. MIMRA (2008) 2 NWLR (Pt. 1071) 378 at 410, further emphasis the triteness of the law on this trig-point. It was held thus: “Finally an appellate Court can prefer an issue or issues formulated by any of the parties and can itself and on its own, formulate an issue or issues which in its considered view, is/are germane to and is or are pertinent in the determination of the matter in controversy. See the cases of Musa Sha (Jnr.) 1 & Anor v. Da Rap. Kwan & 4 Ors (2000) 8 NWLR (Pt. 670) 685, (2000) 5 SCNJ 101; Lebile v. The Registered Trustees of Cherubim & Seraphim Church of Zion of Nig. Ugbonla & 3 Ors (2003) 2 NWLR (Pt. 804) 399, (2003) 1 SCNJ 463 at 479 and Emeka Nwana v. Federal Capital Development Authority & 5 Ors (2004) 13 NWLR (Pt. 889) 128 at 142 – 143; (2004) 7 SCNJ 90 at 99 citing several others cases therein.” Per GALADIMA, J.S.C PER YARGATA BYENCHIT NIMPAR, J.C.A.

POSITION OF THE LAW REGARDING THE BURDEN AND STANDARD OF PROOF IN CRIMINAL TRIALS

It is settled beyond the citing of authorities now that in criminal trials, the burden of proof is on the prosecution from start to finish, the burden does not oscillate like in civil cases. See the case of AKIBU V. STATE (2019) LPELR-47639(SC) wherein the apex Court held thus: “The duty of the prosecution in any criminal matter is to prove the charges against an accused person beyond reasonable doubt. This is a settled position of the law. The onus of proving the guilt of any person accused of the commission of a crime lies on the prosecution and that the burden never shifts but must be discharged by credible evidence to ensure that all necessary and vital ingredients of the charge or charges are satisfactorily proved. See STATE VS JAMES GWANGWAN (2015) 13 NWLR (Pt.1477) 600, at 621, paras B-E, per Okoro J.S.C. See also YONGO VS COMMISSIONER OF POLICE (1992) LPELR – 3528 (SC); (1992) SCNJ 113; (1992) 8 NWLR (Pt.257) 36; OGUNDIYAN VS THE STATE (1991) LPELR-2333 (SC); (1991) 3 NWLR (Pt.181) 519, ALONGE VS IGP (1959) 4 FSC 203; IBRAHIM VS THE STATE (2015) 11 NWLR (Pt.1469) 164 at 192, paras A-B. By virtue of S.135(1) of the Evidence Act 2011, the offence must be strictly proved by cogent and convincing evidence that leaves no iota of doubt or scepticism in the minds of the parties and members of the public, and I dare say this Court. The section provides: “135. Standard of proof where commission of crime is in issue; and burden where guilt of crime etc. asserted. (1) 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. (2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.” Per BAGE, J.S.C. See also the case of BAKARE V. STATE (2017) LPELR-42772 (CA); DANBABA V. STATE (2018) LPELR-43841 (SC); EKPO V. STATE (2018) LPELR-43843 (SC). The standard required by law is proof beyond reasonable doubt and that does not imply that the proof should be beyond all shadow of doubt. See the case of UCHE V. STATE (2015) LPELR 24693 (SC) where the apex Court held as follows: “Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. In the case of Oseni vs The State (2012) LPELR – SC.14/2011. His Lordship Adekeye, J.S.C. stated thus: “Broadly speaking proof beyond reasonable simply means the prosecution establishing the guilt of the accused person with compelling and conclusive evidence. It means a degree of compulsion which is consistent with a high degree of probability. In the case of Miller vs Minister of Pensions (1947) 2 ER P. 372, it was held that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt and if the evidence is strong against a man as to leave only a remote probability in his favour which can be dismissed with the sentence “of course, it is possible but not in the least probable, the case is proved beyond reasonable doubt.” See Bakare v. State (1987) 1 NWLR (Pt. 52) p.579.” Similarly, in Abeke v. The State (2007) ALL FWLR (Pt.366) 644 @ 659 E-F, Tobi, J.S.C. opined thus: “Reasonable doubt is founded upon reason which is rational, devoid of sentiment, speculation or parochialism. The doubt should be real and not imaginative. The evidential burden is satisfied if a reasonable man is of the view that from the totality of the evidence before the Court, the accused person committed the offence. The proof is not beyond all shadow of doubt. There could be shadows of doubt here and there but when the pendulum tilts towards and in favour of the fact that the accused person committed the offence, a Court of law is entitled to convict even though there are shadows of doubt here and there.” Per KEKERE-EKUN, J.S.C See also the cases of AMAECHI V. STATE (2016) LPELR-40977 (CA); JUA V. STATE (2010) LPELR 1637(SC); UGWANYI V. FRN (2012) LPELR-7817. The law requires that the ingredient of the offence must be proved by cogent and credible evidence, see the case of UDO V. STATE (2016) LPELR-40721 (SC) wherein the Court held as follows: “It is settled law that an offence … can only be established if cogent, credible and reliable evidence is led to prove the following ingredients of the offence.” Per SANUSI, J.S.C PER YARGATA BYENCHIT NIMPAR, J.C.A.

INGREDIENTS OF THE OFFENCE OF KIDNAPPING

The Appellant was initially arraigned on a 3-count charge but subsequently convicted on a sole charge of kidnapping contrary to Section 274 of the Penal Code which says: “whoever kidnaps or abducts any person in order that such person or persons may be killed or may be so disposed as to be put in danger of being killed, shall be punished with imprisonment for a term which may extend to fourteen years and shall also be liable to fine.” The recognized ingredients of the offence of Kidnapping were stated in the case of OKASHETU V STATE (2016) LPELR-40611(SC) wherein the apex Court held thus: “The Offence of Kidnapping: In order for the prosecution to succeed under this count it has to prove the following facts beyond reasonable doubt. (i) That the victim was seized, and taken away by the accused person. (ii) That the victim was taken away against his consent. (iii) That the victim was taken away without lawful excuse. The offence of kidnapping is complete when the victim is carried away against his wish. See the case of R V. CORT (2004) 4 All ER 137.” Per OGUNBIYI, J.S.C. PER YARGATA BYENCHIT NIMPAR, J.C.A.

WAYS BY WHICH THE COMMISSION OF A CRIME CAN BE PROVED IN COURT

It is recognized that the prosecution in its effort to establish the commission of a crime can do so in three ways and they were stated in the case of BILLE V STATE (2016) LPELR- 40832(SC) thus: “There are three ways of proving a crime in Court. These are: (1) Direct evidence. (2) Confessional statement/statements made by the accused, and (3) circumstantial evidence. See Adeyemo v. State (2015) 4 SC (pt. 11) 112 at 129 paras 30-35. If the accused pleads guilty and admits the facts as laid the prosecution has no duty to prove what has been admitted.” Per NGWUTA, J.S.C. PER YARGATA BYENCHIT NIMPAR, J.C.A.

ATTITUDE OF THE APPELLATE COURT REGARDING INTERFERENCE WITH THE FINDINGS OF FACTS AND EVALUATION OF EVIDENCE MADE BY THE TRIAL COURT

It is trite that the duty of evaluation of evidence is primarily that of the trial Judge and unless he fails in that duty, the Appellate Court would not interfere. See the case of AKINBADE & ANOR V. BABATUNDE & ORS (2017) LPELR-43463(SC) where the apex Court held thus: “I need to emphasize that it is the duty of a trial Court to evaluate evidence generated before him. Where a trial Court has unquestionably evaluated the evidence and appraised the facts, it is not the business of an appellate Court to substitute its own views for the views of the trial Court. An appellate Court is not to disturb the findings of facts and evaluation of evidence by the trial Court simply because it could have done it differently so long as the judgment of the trial Court can be supported by the evidence. See Eze v. Okoloagu (2010) 3 NWLR (Pt. 1150) 182. Where however a trial Court abdicates its duty of evaluation of evidence and the ascription of weight to the evidence, or when it is demonstrably shown that it had not done it properly or having done it, came to a wrong conclusion, or there are good and exceptional reasons to do so, an appellate Court is in a good position as the trial Court to evaluate the evidence and ascribe probative value thereto before taking a decision. See Akinola v. Oluwo (1962) 1 SCNJ P.352.” Per OKORO, J.S.C See also the cases of FALEYE & ORS V. DADA & ORS (2016) LPELR-40297 (SC); LASE V. STATE (2017) LPELR-42468(SC). PER YARGATA BYENCHIT NIMPAR, J.C.A.

WHETHER AN APPELLATE COURT CAN EXCLUDE AN INADMISSIBLE EVIDENCE WRONGLY ADMITTED

Admittedly, the Court can expunge inadmissible evidence which was wrongly admitted, see the case of AKPAN V. STATE (1994) LPELR 382(SC) where the Court held that: “An appellate Court has a duty to exclude inadmissible evidence wrongly admitted and to deal with the case on the basis of the remaining legally admitted evidence. See Ayanwale v. Atanda (1988) 1 NWLR (Pt. 68) 22.” Per ADIO, J.S.C PER YARGATA BYENCHIT NIMPAR, J.C.A.

WHETHER EVIDENCE OF AN INVESTIGATING POLICE OFFICER IS HEARSAY EVIDENCE

It has been settled in a plethora of authorities that the evidence of an investigating police Officer is not hearsay evidence, see the case of OLAOYE V. STATE (2018) LPELR 43601(SC) wherein the Court held: “It has to be said that it is erroneous for the appellant to posit that the evidence of PW3 should be discountenanced being hearsay evidence. That submission is a misconception since PW3 is the investigating Police Officer who has to narrate to the Court what transpired in the course of his investigation. In this process of stating what he found out in carrying out his inquiries, would be pieces of evidence which with another witness would be considered hearsay but from him since the Court has to know the synopsis of his investigative journey it is direct evidence. See Obot v State (2014) LPELR – 23130 (CA).” Per PETER-ODILI, J.S.C See also the case of KAMILA V. STATE (2018) LPLER – 43603(SC). PER YARGATA BYENCHIT NIMPAR, J.C.A.

WHETHER A MEMBER OF A TEAM OF POLICE OFFICERS WHO INVESTIGATED A CRIME, CANNOT GIVE EVIDENCE OF WHAT ANOTHER MEMBER DID OR RECOVERED IN THE COURSE OF INVESTIGATIONS

Where a team of Police officers investigate a crime, any member of the team can give evidence of what another member did or recovered in the course of investigations, see the case of MOSES V. STATE (2018) LPELR-46389 (CA) wherein the Court held thus: “…This case (OGUNO V STATE (2013) 15 NWLR, PT 1376, 1), which is a Supreme Court decision is authority for the proposition that any member of a police investigation team can tender the recorded statement made by an accused person …. We are then confronted with case of OGUNO V. THE STATE (SUPRA) which held that the confessional statement of the appellant was properly admitted when it was tendered through another Police Officer who was not the maker…” Per MAHMOUD, J.C.A. PER YARGATA BYENCHIT NIMPAR, J.C.A.

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This Criminal Appeal is against the decision of the High Court of Nasarawa sitting in Lafia delivered by HON. JUSTICE SIMON O. ABOKI on the 12th November, 2019 wherein the lower Court found the Appellant guilty and convicted him for the offence of kidnapping; he was sentenced to 8 years imprisonment pursuant to Section 274 of the Penal Code. The Appellant was initially arraigned along another person who was discharged after a No case Submission. The Appellant dissatisfied with the conviction and sentence filed a Notice of Appeal dated 3rd December, 2019 setting out 6 grounds of Appeal.

Facts leading to this appeal are straight forward and amenable to brief summary, I shall do so shortly. The initial charge against the Appellant with his co-accused was a three-counts charge of Conspiracy, Culpable Homicide and kidnapping punishable under Sections 97, 221 and 274 of the Penal Code. Upon close of case for the prosecution the Defendants made a No case submission which succeeded for the 2nd Accused Person and partially for the Appellant in respect of the offence of conspiracy and culpable

Homicide. He was ordered to enter his defence on the charge of Kidnapping. The charge read thus:
“That you SUNDAY AYOTUNDE ‘m’ of Angwan Eggon Masaka in Karu LGA of Nasarawa State, within the jurisdiction of this Honourable Court kidnapped one Samuel Philip (4 years old) ‘m’ of the same Angwan Eggon Masaka to unknown destination thereby committed an offence punishable under Section 274 of the Penal Code Law of Northern Nigeria.”

The prosecution called two witnesses and tendered 4 Exhibits while the Appellant testified in defence. After full consideration of the evidence and addresses of learned Counsel on both sides, the Court found the Appellant guilty of the offence of kidnapping and sentenced him to 8 years imprisonment, thus the appeal.

The Appellant’s brief settled by JAMES HOPE, ESQ., is dated 19th day of February, 2020 and filed on the same day but deemed on the 23rd June, 2020. It distilled 4 issues for determination as follows:
1. Whether from the totality of evidence adduced before the trial Court, the prosecution proved the offence charged against the Appellant upon credible legally

admissible evidence as to warrant his conviction and sentence. (Distilled from Grounds 1, 2, 3 and 4 of the Notice of Appeal).
2. Whether the failure of the police and prosecution to conduct investigation into the defence of alibi timeously and properly raised by the Appellant is not fatal to the case of the prosecution against the Appellant to warrant his discharged and acquittal. (Distilled from Grounds 1, 2, 3 and 4 of the Notice of Appeal).
3. Whether the failure of the learned trial Court to properly evaluate the weight of evidence before it did not occasion a miscarriage of justice. (Distilled from Grounds 4 and 5 of the Notice of Appeal).
4. Whether the trial Court erred in convicting and sentencing the Appellant to eight (8) years imprisonment without due recourse to the provisions of the law and the administration of criminal justice system. (Distilled from Grounds 6 of the Notice of Appeal).

The Respondent’s Brief settled by ASSOC. PROF. ABDULKARIM A. KANA, the Hon. Attorney General of Nasarawa State, is dated 12th August, 2020 and filed on the 16th September, 2020. It was deemed on the 5th May, 2017 and it adopted the 4 issues formulated by the Appellant.

Thereafter the Appellant filed a Reply brief dated 18th September, 2020 and filed on the 22nd September, 2020 and it was deemed on the 18th January, 2021.

APPELLANT’S ARGUMENT
ISSUE ONE
The Appellant argued that in every criminal trial, it is the duty of the prosecution to prove the guilt of the accused person beyond reasonable doubt by presenting cogent and admissible evidence in Court and to establish this, the trial Court must look at the entire evidence adduced by the witnesses of the prosecution and where from such evidence, there exist a doubt, such doubt must be resolved in favour of the Accused Person as re-affirmed in ORJI V. STATE (2008) 10 NWLR (PT.1094) 31; OMOYELE V. STATE (2014) 3 NWLR (PT 1394) 232; HAUSA V. STATE (1994) 6 NWLR (PT. 350) 281. The Appellant reproduced the provision of Section 274 of Penal Code and cited the case of OKASHETU V. STATE (2016) LPELR-40611. The Appellant submits that PW1 testified that Exhibit A1 & A2 and B1 & B2 all point to the fact the Appellant and Abba Ibrahim committed the offence, this is false and misleading because Exhibits A1 & A2

and B1 & B2 are mere statements about the missing Samuel Philip and not confessional statements in the nature to suggest admission of the commission of the offence charged or any other offence against the Appellant and they both did not admit to the commission of the offence (See P. 15-23 of the Record).The Appellant submits that the trial Court convicted the Appellant on circumstantial evidence of PW1 and PW2 which was purely hearsay evidence and contradictory in nature which ought to have been discarded by the trial Judge. The Appellant reproduced the testimony of the PW1 at pages 116-117 of record of appeal to state that there is no reasonable inference to be drawn from the testimony of the Appellant to suggest that the Appellant is guilty of the offence of kidnapping. It is trite law, that for circumstantial evidence to grant a conviction, it must lead only to the guilt of the accused but where there are possibilities that someone could commit such offence, the accused person cannot be convicted of the offence, as held in ADESINA V. STATE (2012) 14 NWLR (PT. 1321) 429 SC.

The Appellant also argued that from the testimony of PW1, he stated that he

did not investigate the matter himself, it was done by his DPO and PW2’s testimony is based on suspicion, therefore the trial Court erred in admitting the testimony of PW1 to convict the Appellant. The Appellant states that the trial Judge’s reliance on circumstantial evidence which did not in any way point to the Appellant because there existed other compelling circumstances that created doubt in their testimonies. From PW1 testimony, he did not visit the crime scene, he did not interview the two children who were said to be playing with the missing Samuel Philip, there was no eye witness account that could corroborate the testimony of PW2 placing the Appellant as the person last seen with the missing Samuel Philip, the testimony of UMMI and UMMAH who claimed they overheard the Appellant and Abba Ibrahim discuss about the missing child all created a doubt in the prosecution’s case. The Appellant cited OMOREGIE V. STATE (2017) LPELR 42466(SC) to submit that the nature of circumstantial evidence and the need for the Courts to be cautious before convicting an accused person. And also relied on EZEAMA V. STATE (2014) LPELR 22504 (CA). The

Appellant submits that the mere fact that the surrounding circumstances are pointing to the Appellant does not preclude the prosecution from investigating the crime. The Appellant reproduced that the testimony of PW1 contained at pages 117 of the record which did not point to the guilt of the Appellant. The trial Court after evaluating the evidence of PW1, discharged and acquitted ABBAH IBRAHIM from the 3 count charges of criminal conspiracy, kidnapping and culpable homicide punishable with death whereas, relied on the strength of same to convict and sentence the Appellant to eight years term of imprisonment which has no justification. What is good for the goose is good for the gander as held in STATE V. OGBUNJO (2001) 2 ACLR 527 AT 538-540; AMADI V. STATE (1993) 8 NWLR (PT. 314) 644 and ADIE V. STATE (1980) ANLR 39. The doctrine of last seen will not be applicable in this case as there is no cogent evidence suggesting the Appellant to be the person last seen with Samuel Philip. The Appellant stated he travelled and the victim was seen to be playing with two other children and PW2 was home alongside other occupants in the compound. He relied on STATE V. SUNDAY

(2019) LPELR-46943 (SC). The Appellant urge the Court to resolve this issue in favour of the Appellant.

ISSUE TWO
The Appellant contends that the refusal of the police to investigate the defence of alibi raise by the Appellant is a flaw to the prosecution’s case and should have been resolve in favour of the Appellant. The evidence adduced during trial by PW1, PW2 and DW1 all affirmed in their testimonies before Court that the Appellant indeed traveled on the day of the incident. The Appellant reproduced the evidence adduced by PW1, PW2 and DW1 which are found at pages 115, 138 and 167 of records. The Appellant submits that it is very important for the police to investigate the defence of alibi raised at the earliest stage to disprove same by credible evidence. It is trite that when an alibi is raised but not duly investigated, it creates a reasonable doubt which must always be resolved against the prosecution. He cited OZAKI & ANOR V. THE STATE (1990) 1 NWLR (PT. 124) 92; AJAYI V. STATE (2014) ALL FWLR (PT. 711) 1457; MOHAMMED V. STATE (2015) LPELR 24397 SC; MUSTAPHA V. STATE (2008) WRN (VOL. 2) 76; TUNJI V. STATE (2013) LPELR 21955 CA; GODSGIFT V. STATE (2016) 13 NWLR (PT. 1530) 444.

The Appellant submits that relying on the shallow evidence presented by the Prosecution and not adducing evidence to show that the alibi was investigated is fatal to the prosecution case, moreso, alibi raised has been successfully supported by the testimonies of DW1 and PW2 who provided evidential onus of the Appellant’s where about on the relevant day the offence was committed and corroborated by PW2 when she asserted that the Appellant traveled to Kogi State. The Appellant relied on YANOR & ANOR V. THE STATE (1965) NMLR 337 and ESANGBEDO V. STATE (1989) NWLR (PT. 113) 57. He urged the Court to resolve issue two in favour of the Appellant.

ISSUE THREE
The Appellant argued that the trial Court has a duty to properly evaluate evidence before convicting the Appellant. The evaluation of evidence and ascription of probative value to it is the primary responsibility of the trial Court who had the opportunity of watching the demeanour of witnesses who testified before it and where such responsibility is properly discharged, an Appellate Court has no business interfering with or disturbing

the findings reached by the trial Court as held in BUSARI V. THE STATE (2015) 5 NWLR (PT. 1452) 343; ADEBESIN V. THE STATE (2014) 9 NWLR (PT. 1413) 609 and ADEYEFA V. BAMGBOYE (2014) 11 NWLR (PT. 1419) 520. The Appellant submit that the trial Court failed in its primary duty of properly evaluating the evidence adduced before it and ascribing probative value to same before making any findings and conclusions. The trial Court did not evaluate the evidence of the Appellant before arriving at the conclusion that he is guilty of the offence charge (See p. 170-198 of record). The trial Court relied strongly on the submissions of the prosecution (See p. 82-94 of record). The law is trite that where the extrajudicial statement of a witness is inconsistent with his sworn testimony, recourse must be had as to whether or not the witness offered reasonable explanation for the inconsistently. Citing POPOOLA V. STATE (2019) ALL FWLR (PT. 982) 903 and states that the trial Court utterly misdirect itself in law and facts by aligning with the submission of the prosecution when it held that the credibility of the defendant cannot be relied upon due to the fact that he even out

rightly denied making any statement at some point but answered in the affirmative all questions posed to him by the prosecution concerning details about him and his journey to Kogi without considering the fact of how the police came about those information in circumvention of the Appellant’s explanation whereof, he posited thus: “I did not write any statement at the police station but he was interrogated by the police. The police later brought a statement for me and I thumb printed not under duress”. It is apparent that the trial Court did not evaluate the evidence of the Appellant as adduced during trial.

The Appellant also argued that the trial Court’s failure to evaluate the entire evidence led it to making perverse finding in its judgment particularly at pages 187-195 of Record. The trial Court failed to make pronouncement on the defence raised by the Appellant, nor analyse the evidence of witnesses regarding the issue raised. Instead, the trial Court only considered the evidence of the Respondent and made all its finding thereon. The Appellant denied the commission of the offence, yet the trial Court failed to consider same and instead

chose to believe and relied on the circumstantial evidence raised by the Respondent. It is trite that for a conviction to be based on circumstantial evidence, the circumstantial evidence must point to one rational conclusion that the offence was committed by no other than the accused person. There must be no other co-existing circumstances which would weaken or destroy the inference as held in OMOTAYO V. STATE (2013) 2 NWLR (PT. 1338) 235; EZE V. STATE (1976) 1 SC 125. Where circumstantial evidence is deficient, it helps the accused person to a discharge and acquittal, citing ADESINA V. STATE (2012) 14 NWLR (PT.1321) 429 SC. There is no record to show that the trial Court evaluated the evidence before it and the standard of proof required of the prosecution is proof beyond reasonable doubt, cited the case of CHIEF FALADE ONISAODU & ANOR V. CHIEF ASUNMO ELEWUJU & ANOR (2006) 13 NWLR (PT. 998) 517. Where the trial Court fails to perform its primary duty of evaluating evidence proffered before it as in the instant case, an Appellant Court can conveniently interfere or disturb its findings by carrying out the onus of evaluating the evidence on appeal.

Relied on GBEMISOLA V. BOLARINWA (2014) 9 NWLR (PT. 1411) 1; ALI V. THE STATE (SUPRA) 578.

The Appellant further argued that the trial Judge failed to evaluate the evidence of the Appellant vis a vis his co-defendant (Abba Ibrahim), now discharged. The evidence of both defendants was based on suspicion however, the trial Court while discharging Abba Ibrahim on all the three count charges but failed to discharge the Appellant on the three count charges as all the three count charges were based on suspicion and speculation. Cited OGUNBODEDE V. FEDERAL REPUBLIC OF NIGERIA (2018) LPELR-4883(CA) and pages 15-22 and 143-166 of the Records. The evidence adduced by the prosecution fell short of the standard of proof in criminal trials, because the prosecution must present material witnesses to enable the Court evaluate and rely on them. The Appellant reproduced the testimonies of material witnessed neglected by the prosecution found at pages 190-191 of the record and submit that such create sufficient doubt in the case of the prosecution, thereby affecting the trial Court in properly analyzing the case. Relied on ALAKE V. THE STATE (1992) LPELR-403 (SC);

FEDERAL REPUBLIC OF NIGERIA V. SARAKI (2017) LPELR-43392 AT 84; STATE V. NNOLIM & ANOR (1994) 5 NWLR (PT. 345) 394; OMOGODO V. THE STATE (1981) 5 SC 5; ONAH V. THE STATE (1985) 3 NWLR (PT. 12) 236. That the trial Court failed to also properly evaluate the contradictions and inconsistencies of the testimonies of PW1 and PW2, relied on ENGR. GOOD NEWS AGBI & 1 ANOR V. CHIEF AUDU OGBE & 7 ORS (2004) 6 NWLR (PT. 868) 78.

ISSUE FOUR
The Appellant argued that the conviction and sentencing of the Appellant by the trial Court was excessive and not in line with the provision of the law as provided under the Penal Code Act and the Administration of Criminal Justice Law of Nasarawa State, 2019. The Appellant reproduced Section 274 of the Penal Code to state that for a term of imprisonment, the MAY used to connote discretionary power of the Court but made it mandatory for the Appellant to be liable to fine by using the word SHALL. The word “shall” as used for the sentencing of the Appellant in this case denotes a command and such command must be obeyed before it can be said that the provision of the law is complied with. He relied on

CORPORATE IDEALS INS. LTD V. AJAOKUTA STEEL CO. LTD (2014) 7 NWLR PT. 1405) 165 and ONOCHIE V. ODOGWU (2006) 6 NWLR (PT. 975) 65; AMOKEODO V. I.G.P (1999) 5 SCNJ 71. By the use of the word “May”, the law gave the trial Judge discretionary powers in terms of imprisonment of the Appellant and discretionary power must be judiciously used and not to be excessive. The Appellant submits that the conviction of the Appellant to a term of 8 years imprisonment is highly excessive considering the provision of the law which allows for the discretionary powers of up to 14 years (See P. 197 of the Records) and referred to ABIODUN V. FEDERAL REPUBLIC OF NIGERIA (2016) LPELR-40535 (CA); OMOKUWAJO V. FEDERAL REPUBLIC OF NIGERIA (2013) LPELR-20184 (SC) and KAYODE V. FEDERAL REPUBLIC OF NIGERIA (2017) LPELR 41865 (CA). The Court in its judgment simply imposed a sentence which is very excessive without considering the following factors:
a. That the Appellant was a first offender and is entitled to a lesser sentence with option of fine.
b. That the Appellant has spent a substantial amount of time in Court and has always ensured that his trial is disposed within a

reasonable time. He appeared five times without the prosecution. (See P. 110-112 of records).
c. Section 401 and 416 of the Administration of Criminal Justice Act, 2015 and Section 303 (2) of the Administration of Criminal Justice Law of Nasarawa State, 2018 provided for factors to be considered by the trial Judge when sentencing a defendant.
d. During trial, all adjournments were asked by the prosecution and the Appellant had to serve hearing notice on the prosecution in order to ensure the trial is concluded swiftly.

The Appellant cited the case of HAMMAN V. STATE (2018) LPELR 45392 (CA) to support his submission. The Appellant argued that this Court has power to consider the discretion used by the trial Court and order a reduction in sentence considering the issues raised above and in the alternative reduce the sentence of imprisonment imposed on the Appellant with a lesser sentence as stated in Section 416 of the Administration of Criminal Justice Act, 2015 and the case of ZACHEOUS V. THE PEOPLE OF LAGOS STATE (2015) LPELR 24531 (CA) and NYAME V. FEDERAL REPUBIC OF NIGERIA (UNREPORTED). The Appellant urge the Court to allow this appeal,

set aside the decision of the trial Court, discharge and acquit the Appellant, or in the alternative reduce the sentence to a lesser sentence with an option of fine.

RESPONDENT’S SUBMISSION
ISSUE ONE
The Respondent argued that the standard of proof in criminal trial is proof beyond reasonable doubt as held in AMADI V. FRN (2008) 18 NWLR (PT. 1119) 259 and Section 135(1) of the Evidence Act, 2011. This onus can be discharged by leading credible and compelling evidence. The Respondent submits that the prosecution proved the offence with credible and legally admissible evidence beyond reasonable doubt, cited CYRIACUS OGIDI V. STATE (2003) 26 WRN; MILMER V. MINISTRY OF PENSION (1847) 2 ALL ER 372 and MORUFU BOLANLE V. THE STATE (2005) 7 NWLR (PT. 925) 456 where proof beyond reasonable doubt was held to simply mean the prosecution establishing the guilt of the accused person with compelling and conclusive evidence, it means a decree of compulsion which is consistent with a high degree of probability. In OLAOLUWA V. STATE (2018) LPELR 46436 and Section 271 of the Penal Code, it defined the offence of kidnapping and provides for the ingredients

of the offence of kidnapping which states as follows:
a. The victim must be taken or enticed out of the keeping of his or her lawful guardian.
b. The victim must be under fourteen years of age if he is a male or below sixteen years if she is a female or a person of unsound mind.

The Respondent also submits that the Court held that the prosecution to succeed under this count he has to prove the following facts beyond reasonable doubt:
i. That the victim was seized or taken away by the accused person.
ii. That the victim was taken away against his consent
iii. That the victim was taken away without lawful excuse.

The Respondent argued further that the prosecution was able to establish that a 7 years old boy name Samuel Philip was kidnapped on the 18th of March, 2017, this fact was never disputed which implies the first limb of the element of offence of kidnapping was established. The Respondent submits that PW2 testified and under cross examination, she stated that, on that fateful day her son was playing with other children in and out of the Appellant’s room, when she went and took her son from the Appellant’s

room, her son went back to the room and around 5pm of the same day she notice her son had disappeared (see p. 137-139 of record). This goes to show that there is every possibility that the Appellant certainly knew the where about of the little Samuel and where he kept him as against his consent or that of his parent. Relied on OLAOYE V. STATE (2018) 1 307, AKINRINLOLA V. STATE (2016) NWLR (PT 1537) 73 to submit that in criminal trials there is direct and circumstantial evidence. Circumstantial evidence is proof of fact by inference of fact proved, that where direct evidence of an eye witness is not available, the Court is permitted to infer from the fact proved, the evidence of other facts that may be logically inferred as held in OBINNA OSUOHA V. STATE (2010) 16 NWLR (PT. 1219) 364. The Respondent submits that PW2 stated in her evidence that when they returned back from the station, the Appellant met her with her husband and told them that if they can raise the sum of Fifty Thousand Naira (N50,000) her son will be back which she refused to give him (See P. 138 of record). The Respondent also submit that the offence of kidnapping from the above undisputed

evidence was proved, particularly, as it is a settled principle of law that a crime could be established by either direct or circumstantial evidence which points irresistibly to an accused person. Relied on ADEBAYO V. STATE (2007) ALL FWLR (PT. 305) 4937; MADU V. STATE (2007) ALL FWLR (PT. 371) 637. The Respondent urged the Court to uphold the finding of the trial Court that the offence of kidnapping was proved beyond reasonable doubt against the Appellant and resolve this issue against the Appellant.

ISSUE TWO
The Respondent argued also that in defence of alibi, where there is evidence fixing the accused at the scene of the crime cannot avail the party raising it, in the instant case, PW2 testified she met the Appellant who started telling her strange stories that he is also searching for Samuel Philip and the next morning, the Appellant and girlfriend greeted her and even went in search again for Samuel and also when he told her to bring N50,000 for the release of her son (See. 137-138 of record), furthermore, the Co-defendant told the police that on the day of the incident, he was washing outside the compound when he saw the Appellant give the

victim biscuit before disappearing (See p. 15-17 of record), this piece of evidence was corroborated by the statement of the Appellant where he stated that he joined in search of the victim, citing PETER V. THE STATE (1997) LPELR 2913. The Respondent submits that where a defence of alibi is raised as in the instant case, it does not automatically avail the Appellant to an acquittal. If the prosecution is able to adduce sufficient and admissible evidence to identify the Defendant at the scene of the crime at the material time as they have done in the instant case, his alibi will be rebutted (See P. 170-198 of record). Relied on HAUSA V. STATE (1994) 6 NWLR (PT. 350) 281. Also, the Respondent stated that the inconsistency rule stated in the case of R. V. GOLDER (1960) 1 WLR 1169 was extended to confessional statements made by accused person who testified as witness. See the case of ASANYA V. STATE (1991) 3 NWLR (PT. 180) 422; OLADEJO V. STATE (1987) 3 NWLR (PT. 61) 479. The Respondent further submits that the alibi raised by the Appellant was duly investigated by the investigating team of police officers and the outcome of the investigation was explained by one

of the team member to the satisfaction of the trial Court where the supposed host denied seeing the Appellant in over two years. Section 39 of the Evidence Act refers to the statement of a person whether written or oral who cannot be call as a witness, cited AWOSIKA V. STATE (2010) 9 NWLR (PT. 1198) 49. The Respondent stated that it is a misconception to state that the police and the prosecution did not investigate the alibi raised by the Appellant and urge this Court to resolve this issue against the Appellant.

ISSUES 3 AND 4
The Respondent argued that despite what transpired at the trial Court as well as the reasons proffered by the Court in coming to be conclusion as contained in the Judgment leading to this Appeal, the Appellant’s contention on these issues for determination appeared to be a clear misconception of the position of law with respect to proper evaluation of evidence. The law is well settled that finding of the trial Courts will not normally be disturbed unless same is shown to be perverse. The Appellant in this case has not succeeded in doing that. The Court below has made necessary findings in respect of all the issues

before it drew the right inference and applied the correct principle of law to the accepted fact, this Court is not entitled to interfere as held in OLAYEYA V. STATE (2010) NWLR (PT. 1181) 423. The facts remain that DW1 could not have been both in Ayetoro to visit Olajimi and at the same time to visit Aunty Amina all in different parts of Kogi State and to also help the victim’s mother to search for her son. The Appellant has not been able to explain the contradiction in his evidence, cited BAMGBOYE V. OLAREWAJU (1991) 4 (PT. 184) 134, JOE GOLDAY CO. LTD V. CDB PLC (2003) FWLR (PT. 153) 376. It is trite that the onus of establishing the guilt of the accused person beyond reasonable doubt is on the prosecution as held in OBIDIKE V. THE STATE (2014) 7 SCM 104. According to the Respondent, the Appellant’s contention on the findings and conclusion of the trial Court was premised on believing or disbelieving a particular piece of evidence as an affront to the presumption of innocence of the Appellant, that such argument depicts a sad misunderstanding of law. The trial Court was right to have disbelieve the evidence of the Appellant after testing the

veracity of Exhibits A1 and A2, PW1 and PW2 and of course the defence of the Appellant before coming to the conclusion that evidence of the prosecution is to be preferred to that of the Appellant (P. 192-194 of record). According to the Respondent, the trial Court was right to have convicted the Appellant on credible and uncontradicted evidence of the prosecution. Also, the Respondent submit that on the alleged contradictions in the evidence of the prosecution, minor or miniature contradiction which did not affect the credibility of witnesses is not fatal, relied on ALO V. STATE (SUPRA). On the evidential burden placed on the Respondent to prove the offence against the Appellant has been discharged beyond all reasonable doubt through the evidence of PW1 & 2 which was corroborated by Exhibit A1 & A2 (See P. 196 of record). Relied on the cases of FRANCIS EZEDIUFU V. THE STATE (2001) 17 NWLR (PT. 741) and STATE V. OLADOTUN (2011) 10 NWLR (PT. 1256) 542; ILIYASU V. STATE (2015) 2 SCM 114 P. 129; EFFIONG V. THE STATE (2016) LPELR-41377 (CA); AIGBADION V. STATE (SUPRA).

The Respondent contend that the Appellant’s argument that trial Court

discharged the 2nd Defendant of the same offences charged, therefore the 1st Defendant ought to have been discharge as well is wrong. The Defendants were charged with the offences of conspiracy, culpable homicide and kidnapping. At the close of the prosecution’s case, the trial Court on the ruling on no case submission discharged the 2nd Defendant of the three counts charge and also discharges the Appellant of the offence of conspiracy and culpable homicide punishable with death but the offence of kidnapping was established against him (see P. 81 of the Record). It appeared to the trial Court that a case was made against the 2nd Defendant, consequently, he was discharged on that basis on all the charges against him. Cited FEDELIS UBANATU V. C.O.P (2000) 1 SC 31; TONGO V. C.O.P (2007) ALL FWLR (PT. 366) 668; OBIDIKE V. STATE (2014) 7 SCM @ 104 LPELR-22590. The Respondent submits that the prosecution has successfully established the ingredient of the offence of kidnapping against the Appellant by credible and material admissible evidence. Also, the Respondent submits that in response to the Appellant’s contention on the inability of the Respondent to

call what he termed “Vital witness” that the law imposes no obligation on the prosecution to call a host of witnesses. The prosecution is not under a duty to call all available witnesses to prove its case in criminal trial, as rightly held by the trial Court while relying on SUNDAY JOHN V. STATE (2013) LPLER-20536 (CA) and AYENI V. STATE (2016) LPELR-40105 (SC) to conclude that the defence cannot claim to know the prosecution’s case more than the prosecution itself laid this matter to rest. Cited EDOHO V. STATE (2004) 5 NWLR (PT. 865) P. 17; OLABODE V. STATE (2009) 11 NWLR (PT. 1152) 254; ARCHIBONG V. STATE (2004) 2 NWLR (PT. 855) 488 and STATE V. AZEEZ & ORS (2008) 14 NWLR (PT. 1108) 439 in support. Section 149(d) of the Evidence Act is therefore not concerned with failure to call a particular witness. Thus, where a party has adduced other evidence on an issue, failure to call a particular witness to give evidence on that piece of evidence will not raise the presumption. Cited the following case AKINYEMI V. THE STATE (1999) 6 NWLR (PT. 607) 449; EGBEYOM V. THE STATE (2000) 4 NWLR (PT. 654) 559; N.A.F V. OBIOSA (2003) 4 NWLR (PT. 810) 233.

The Respondent states that in response to the Appellant’s contention on the inability of the trial Court to duly consider the provision of Section 274 of the Penal Code Law, Administration of Criminal Justice Act, 2015 and Administration of Criminal Justice Law of 2018 of Nasarawa State as untenable. According to the Respondent, the trial Court made use of its discretion to convict and sentence the Appellant judicially and judiciously in the interest of justice and in line with the provisions of Section 274 and 275 of the Penal Code. It is the option of the Court to either sentence to imprisonment or to fine that is an exercise of the trial Court discretion. The Appellant cannot in any way cajole the Court into giving him a fine instead of imprisonment.

The Respondent urge the Court to dismiss this Appeal and affirm the conviction and sentence of the Appellant and the imprisonment without option of fine.

APPELLANT’S REPLY BRIEF
The Appellant’s response on the first issue is that the Respondent submits that the prosecution proved the case with credible and legally admissible evidence beyond reasonable doubt, however, it is

trite that counsel’s submission cannot metamorphose into evidence. The law cited by the Respondent in their argument does not suffice for the Respondent to prove the taking away of the victim without consent but the Respondent must show the link with the Appellant taking away of the victim. The Appellant cited Section 271 of the Penal Code and stated that for the Respondent to succeed in proving the offence of kidnapping against the Appellant, the following facts must be proved beyond reasonable doubt:
a. That the victim was seized or taken away by the Appellant
b. That the victim was taken away against his consent or that of his guardian
c. That the victim was taken away without lawful excuse.

The Appellant argued that the Respondent failed to establish evidence linking the Appellant with the commission of crime. No evidence that showed or pointed to the fact that it was the Appellant that seized or took away the victim. The standard of proof in criminal proceedings is proof beyond reasonable doubt and the ipse dixit evidence of PW2 at the trial cannot be considered in satisfaction of Section 135 of the Evidence Act, 2011.

PW2 never adduced evidence that she left the victim with the Appellant on the day he disappeared neither did she state that she saw the Appellant leave the compound with the victim. Then how did the Appellant kidnap the victim without being seen by PW2 or any other person within the neigbourhood? The circumstantial evidence could be pointed to PW2, the children wherein the Appellant was alleged to have been playing with, the Appellant’s Co-accused and other persons staying within the same building with the victim. On the efficacy of relying on circumstantial evidence, the Appellant cited OKETAOLEGUN V. STATE (2015) LPELR-24836 (SC); MUSA V. STATE (2018) LPELR-45262 (CA); ABDU V. STATE (2016) NWLR (PT. 1494) 557; USMAN V. STATE (2013) 12 NWLR (PT. 1367) 76; MAIGARI V. STATE (2013) 17 NWLR (PT. 1384) 425 and OMOREGIE V. STATE (2018) 2 NWLR (PT. 1604) 505.

The Appellant also argued that the law is trite that the confession of a Co-defendant cannot be employed to secure the conviction of the other accused unless same is adopted by the defendant. Thus the argument of the Respondent in their brief is not founded in law. It is a misrepresentation of the law

because the evidence or statement of a co-accused cannot constitute evidence against an accused person unless the accused has adopted the statement by words or conduct, he relied on KASA V. THE STATE (1994) 5 NWLR (PT. 344) 269 (SC). On issue two, the Appellant states that it is settled law that once the defence of alibi is timely raised by the accused at the material time of investigation as in the instant circumstance, the onus is on the prosecution to investigate same which onus the Respondent never attempted to discharge. Citing MBERI V. STATE (2016) LPELR-40075(CA); NNADI V. STATE (2016) LPELR-41032 (CA); OZAKI V. STATE (1990) 1 NWLR (PT. 124) 92; AREMU V. STATE (1991) 7 NWLR (PT. 201)1; NWABUEZE V. STATE (1988) 4 NWLR (PT. 86) 16.

The Appellant argued further that the Respondent failed and woefully neglected to investigate the Appellant’s alibi but desperately and hurriedly label the Appellant with the offence of kidnapping the victim (Samuel Philip). The argument of the Respondent to the effect that Amina cannot be called to testify is unpleasantly and vexatiously misplaced in law. The said Amina did not fall with the purview of

Section 39 of the Evidence Act, 2011 and neither did the refusal to call credible witness by the Prosecution to dispute the defence of alibi can be seen as an excuse, citing the case of OGUDO V. THE STATE (2011) 18 NWLR (PT. 1278) 1. It is trite that the prosecution has the discretion as to the number of witnesses to call in proof of it case but it is also law that where the prosecution failed to call material witness, such failure is fatal to the prosecution’s case. The presumption of innocence of a person can only be taken away from him when he is properly tried and all elements of the charge against him are proved beyond reasonable doubt as stated in Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 as amended. The Appellant urge the Court to allow this appeal, set aside the decision of the trial Court, discharge and acquit the Appellant.

RESOLUTION
After a careful review of the Notice of Appeal, the Record of Appeal and the respective briefs of learned Counsel on both sides which donated 4 issues for determination in this appeal. The said 4 issues are affected by prolixity because issues 1, 2 and 3 are partly distilled

from ground 4, issues 1 and 2 are both distilled from grounds 1, 2, 3 and 4. This is out rightly against the Rules of Practice in an Appellate Court where the principle has been settled in the case of APATA V. OLANLOKUN & ANOR (2013) LPELR-20938(SC) thus:
“This Court has stated and restated that it abhors the proliferation of issues where only a few issues would determine the appeal. Ogbuagu, J.S.C., in G.K.F. INVESTMENT NIG. LTD. v. NIGERIA TELECOMMUNICATIONS PLC (2009) 15 NWLR (PART 1164) 344 put it simply this way, “I need to stress that this Court discourages the proliferation of issues.” Musdapher J.S.C., (as he then was) was more emphatic. In OMEGA BANK (NIG.) PLC. v. O.B.C. LTD (2005) 8 NWLR (PART 928) 547 he stated thus: “This Court has on several occasions condemned the proliferation of issues in briefs of argument. It is not the number of issues for determination formulated that determines the quality of a brief or that determines the success of an appeal.” Edozie, J.S.C., in IBRAHIM V. OJOMO (2004) 4 NWLR (PART 862) 89 was just as emphatic when he said as follows: “Prolixity or proliferation of issues is not ideal as it tends to obscure the

core issues to be determined and tends to reduce the issue to trifles. Appeals are not won on large number or quality of grounds of appeal but on the quality of the content of the grounds of appeal and issues.” See also MOZIE & ORS V. MBAMALU & ORS (2006) 15 NWLR (PART 1003) 466; UGO V. OBIEKWE (1989) 1 NWLR (PART 99) 566; ANON LODGE HOTELS LTD v. MERCANTILE BANK OF NIGERIA LTD. (1993) 3 NWLR (PART 284) 721.” Per ALAGOA, J.S.C
See also the case of NDUUL V. WAYO & ORS (2018) LPELR-45151 (SC) and INEGBEDION V. SELO-OJEMEN & ANOR (2013) LPELR-19769 (SC).
It is settled that no ground of appeal can generate 2 issues for determination. See SOCIETY BIC S.A. & ORS V. CHARZIN INDUSTRIES LTD (2014) LPELR-22256(SC) where the apex Court held thus:
“…framing two issues from one ground of appeal is a violation of the said principle. See Agu v. Ikewibe (1991) 3 NWLR (Pt. 180) 385. A ground of appeal should not be split to raise two issues. See also A-G Bendel State v. Aideyan (1989) 4 NWLR (Pt. 118) 646; Ugo v. Obiekwe & Anor (1989) 1 NWLR (Pt. 99) 566; Adelaja v. Fanoiki (1990) 2 NWLR (Pt.131) 137. The two issues ought to

have been ignored or struck out as incompetent as it is not the duty of the Court to make a choice for the appellant between the two issues allegedly framed from one ground of appeal.” Per NGWUTA, J.S.C.
See also the case of MFA & ANOR V. INONGHA (2014) LPELR-22010 (SC) and NGENE V. OKOH & ANOR (2018) LPELR-44946(CA).
When such occurs, the issues are struck out for being incompetent. I now strike out issue 1-3 and only 4 survives, however, the Court shall formulate 2 issues for determination on the authority of EMEKA V. STATE (2014) LPELR-23020 (SC) which held as follows: “It is rather a triable argument or merely frivolous for the appellant to contend that the appellate Court, in considering an appeal before it has no discretion to either adopt the issues formulated for determination by the parties or alternatively formulate such issue(s) it believes would adequately determine the grievance in the appeal. Recently, what this Court said in AGBAREH v. MIMRA (2008) 2 NWLR (Pt. 1071) 378 at 410, further emphasis the triteness of the law on this trig-point. It was held thus: “Finally an appellate Court can prefer an issue or issues

formulated by any of the parties and can itself and on its own, formulate an issue or issues which in its considered view, is/are germane to and is or are pertinent in the determination of the matter in controversy. See the cases of Musa Sha (Jnr.) 1 & Anor v. Da Rap. Kwan & 4 Ors (2000) 8 NWLR (Pt. 670) 685, (2000) 5 SCNJ 101; Lebile v. The Registered Trustees of Cherubim & Seraphim Church of Zion of Nig. Ugbonla & 3 Ors (2003) 2 NWLR (Pt. 804) 399, (2003) 1 SCNJ 463 at 479 and Emeka Nwana v. Federal Capital Development Authority & 5 Ors (2004) 13 NWLR (Pt. 889) 128 at 142 – 143; (2004) 7 SCNJ 90 at 99 citing several others cases therein.” Per GALADIMA, J.S.C

The Court shall consider the appeal under two issues namely:
i. Whether by considering the evidence before the trial Court, the prosecution can be said to have proved its case beyond reasonable doubt so as to justify the conviction and sentence.
ii. Whether the trial Court was right in not considering the defence of alibi raised by the Appellant.

I shall consider the issues seamlessly because of the challenge to evaluation of evidence which runs across the entire appeal.

the offence must be strictly proved by cogent and convincing evidence that leaves no iota of doubt or scepticism in the minds of the parties and members of the public, and I dare say this Court. The section provides: “135. Standard of proof where commission of crime is in issue; and burden where guilt of crime etc. asserted. (1) 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. (2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.”
Per BAGE, J.S.C.
See also the case of BAKARE V. STATE (2017) LPELR-42772 (CA); DANBABA V. STATE (2018) LPELR-43841 (SC); EKPO V. STATE (2018) LPELR-43843 (SC).
The standard required by law is proof beyond reasonable doubt and that does not imply that the proof should be beyond all shadow of doubt. See the case of UCHE V. STATE (2015) LPELR 24693 (SC) where the apex Court held as follows:
”Proof beyond reasonable

doubt does not mean proof beyond the shadow of a doubt. In the case of Oseni vs The State (2012) LPELR – SC.14/2011. His Lordship Adekeye, J.S.C. stated thus: “Broadly speaking proof beyond reasonable simply means the prosecution establishing the guilt of the accused person with compelling and conclusive evidence. It means a degree of compulsion which is consistent with a high degree of probability. In the case of Miller vs Minister of Pensions (1947) 2 ER P. 372, it was held that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt and if the evidence is strong against a man as to leave only a remote probability in his favour which can be dismissed with the sentence “of course, it is possible but not in the least probable, the case is proved beyond reasonable doubt.” See Bakare v. State (1987) 1 NWLR (Pt. 52) p.579.” Similarly, in Abeke v. The State (2007) ALL FWLR (Pt.366) 644 @ 659 E-F, Tobi, J.S.C. opined thus: “Reasonable doubt is founded upon reason which is rational, devoid of sentiment, speculation or parochialism. The doubt should be real and not imaginative. The evidential burden is satisfied if a reasonable man is of the view that

from the totality of the evidence before the Court, the accused person committed the offence. The proof is not beyond all shadow of doubt. There could be shadows of doubt here and there but when the pendulum tilts towards and in favour of the fact that the accused person committed the offence, a Court of law is entitled to convict even though there are shadows of doubt here and there.”
Per KEKERE-EKUN, J.S.C
See also the cases of AMAECHI V. STATE (2016) LPELR-40977 (CA); JUA V. STATE (2010) LPELR 1637(SC); UGWANYI V. FRN (2012) LPELR-7817.
The law requires that the ingredient of the offence must be proved by cogent and credible evidence, see the case of UDO V. STATE (2016) LPELR-40721 (SC) wherein the Court held as follows:
“It is settled law that an offence … can only be established if cogent, credible and reliable evidence is led to prove the following ingredients of the offence.”
Per SANUSI, J.S.C

order that such person or persons may be killed or may be so disposed as to be put in danger of being killed, shall be punished with imprisonment for a term which may extend to fourteen years and shall also be liable to fine.”
The recognized ingredients of the offence of Kidnapping were stated in the case of OKASHETU V STATE (2016) LPELR-40611(SC) wherein the apex Court held thus:
“The Offence of Kidnapping: In order for the prosecution to succeed under this count it has to prove the following facts beyond reasonable doubt. (i) That the victim was seized, and taken away by the accused person. (ii) That the victim was taken away against his consent. (iii) That the victim was taken away without lawful excuse. The offence of kidnapping is complete when the victim is carried away against his wish. See the case of R V. CORT (2004) 4 All ER 137.” Per OGUNBIYI, J.S.C.
The three named ingredients are what the Respondent by law was bound to establish.

It is recognized that the prosecution in its effort to establish the commission of a crime can do so in three ways and they were stated in the case of BILLE V STATE (2016) LPELR- 40832(SC) thus:

“There are three ways of proving a crime in Court. These are: (1) Direct evidence. (2) Confessional statement/statements made by the accused, and (3) circumstantial evidence. See Adeyemo v. State (2015) 4 SC (pt. 11) 112 at 129 paras 30-35. If the accused pleads guilty and admits the facts as laid the prosecution has no duty to prove what has been admitted.” Per NGWUTA, J.S.C.

The Respondent was expected to employ any of the three ways or a combination of any two of the three ways to prove the commission of a crime as long as the ingredients are all proved. The accused has no duty to prove his innocence. The Respondent called 2 witnesses and tendered 4 Exhibits which are the statements of the Appellant and the Appellant also testified in his defence. The trial Court after due consideration found the Appellant guilty and sentenced him and thus the complaint of the Appellant that the Respondent did not prove the offence and that the trial Judge failed to evaluate evidence properly thus the error in finding him guilty.

It is trite that the duty of evaluation of evidence is primarily that of the trial Judge and unless he fails in that duty,

the Appellate Court would not interfere. See the case of AKINBADE & ANOR V. BABATUNDE & ORS (2017) LPELR-43463(SC) where the apex Court held thus:
“I need to emphasize that it is the duty of a trial Court to evaluate evidence generated before him. Where a trial Court has unquestionably evaluated the evidence and appraised the facts, it is not the business of an appellate Court to substitute its own views for the views of the trial Court. An appellate Court is not to disturb the findings of facts and evaluation of evidence by the trial Court simply because it could have done it differently so long as the judgment of the trial Court can be supported by the evidence. See Eze v. Okoloagu (2010) 3 NWLR (Pt. 1150) 182. Where however a trial Court abdicates its duty of evaluation of evidence and the ascription of weight to the evidence, or when it is demonstrably shown that it had not done it properly or having done it, came to a wrong conclusion, or there are good and exceptional reasons to do so, an appellate Court is in a good position as the trial Court to evaluate the evidence and ascribe probative value thereto before taking a decision. See Akinola v. Oluwo (1962) 1 SCNJ P.352.”

Per OKORO, J.S.C
See also the cases of FALEYE & ORS V. DADA & ORS (2016) LPELR-40297 (SC); LASE V. STATE (2017) LPELR-42468(SC).

The allegation against the Appellant was that he kidnapped a boy named Samuel Philip a resident of Masaka who disappeared on the 18th March, 2017. The mother of the said Samuel testified as PW2 and the investigating Police officer as PW1. The statements made by the Appellant were admitted without any objection and the Appellant contends they are not confessional statements, even if they were, having been admitted without objection means there cannot be any objection on its voluntariness but it can retracted. Pages 111 of the Record of Appeal discloses that Exhibit A1 and A2 were admitted without any objection therefore no objection can be taken to their admissibility at this stage of the proceedings, an appeal being a continuation of hearing. The Appellant was represented by Counsel at the trial Court.

The question to now ask is whether the Appellant identified the inadmissible evidence which he seeks to be expunged at this stage. Admittedly, the Court can expunge

inadmissible evidence which was wrongly admitted, see the case of AKPAN V. STATE (1994) LPELR 382(SC) where the Court held that:
“An appellate Court has a duty to exclude inadmissible evidence wrongly admitted and to deal with the case on the basis of the remaining legally admitted evidence. See Ayanwale v. Atanda (1988) 1 NWLR (Pt. 68) 22.”
Per ADIO, J.S.C

It was argued by the Appellant that Exhibits A1 and A2 were not confessional statements, assuming it was so, does not mean it cannot be admitted in evidence? Is there any Section of the Evidence Act that says only confessional statements should be admitted in evidence? PW1 whose evidence is tagged hearsay is a Police Officer and member of the investigating team who testified and told the Court the outcome of their investigations and he in particular took the statements of the suspects. It has been settled in a plethora of authorities that the evidence of an investigating police Officer is not hearsay evidence, see the case of OLAOYE V. STATE (2018) LPELR 43601(SC) wherein the Court held:
“It has to be said that it is erroneous for the appellant to posit that the evidence of PW3 should be

discountenanced being hearsay evidence. That submission is a misconception since PW3 is the investigating Police Officer who has to narrate to the Court what transpired in the course of his investigation. In this process of stating what he found out in carrying out his inquiries, would be pieces of evidence which with another witness would be considered hearsay but from him since the Court has to know the synopsis of his investigative journey it is direct evidence. See Obot v State (2014) LPELR – 23130 (CA).”
Per PETER-ODILI, J.S.C
See also the case of KAMILA V. STATE (2018) LPLER – 43603(SC).
Where a team of Police officers investigate a crime, any member of the team can give evidence of what another member did or recovered in the course of investigations, see the case of MOSES V. STATE (2018) LPELR-46389 (CA) wherein the Court held thus:
“…This case (OGUNO V STATE (2013) 15 NWLR, PT 1376, 1), which is a Supreme Court decision is authority for the proposition that any member of a police investigation team can tender the recorded statement made by an accused person …. We are then confronted with case of OGUNO V. THE STATE

(SUPRA) which held that the confessional statement of the appellant was properly admitted when it was tendered through another Police Officer who was not the maker…”
Per MAHMOUD, J.C.A.
Therefore, PW1 was eminently qualified to give evidence of what other members of the team did in the course of the investigation, therefore the evidence of PW1 cannot be hearsay evidence.

The other contention is the argument that inconsistency rule applies to the statements of a person accused of a crime. Inconsistency rule was explained in detail and with the historical development in our criminal law jurisprudence which was re-examined and restated in AKINLOLU V STATE (2015) LPELR-25986(SC) where Nweze, J.S.C. said thusly:
“… the inconsistency rule traces its jurisprudential pedigree to England. Its most eloquent formulation can be found in R v. Golder (1960) 1 WLR 1169 where Lord Parker CJ held: …when a witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the jury should not merely be directed that the evidence given at the trial should be regarded as unreliable; they should also be

directed that the previous statements, whether sworn or unsworn, do not constitute evidence upon which they can act. Well before the decision in R v. Golder (supra), the rule had been applied to witnesses only, Birch v. R (1926) 1 CAR 26; also, R v. Harris (1927) 20 CAR 144. The first case to invoke that rule in Nigeria was Queen v. Ukpong (1961) ALL NLR 25, 26 which approved the statement of law in R v. Golder (supra). At its said evolution in Nigeria, therefore, the posture of the Courts was that the rule was properly applicable to the evidence of an ordinary prosecution witness. Subsequent decisions confirmed this posture. See Joshua v. The Queen (1964) 1 ALL NLR 1, 3 – 4; Agwu v. The State (1965) NMLR 18, 20; The State v. Okoro (1974) 2 SC 73, 80-81; Onubogu v. The State (1974) 9 SC 1; Williams v. The State (1975) 9 -11 SC 139; Boy Muka v. The State (1976) 9 -10 SC 305. Indeed, in Udo v. The Queen (1964) ALL NLR 21, 24, Brett J.S.C. resisted an attempt to extend the application of the rule to the previous confession of an accused person and his evidence. As noted above, on its adoption in Nigeria, the rule was applicable to the evidence of an ordinary

witness. Since its adoption, it has not been an inflexible rule of law or practice. In order to ensure that its operation did not eventuate to injustice, the Courts had developed a safeguard. Thus, in addition to considering the totality of the evidence, the witness was given an opportunity, while in the witness box, to explain the inconsistency. Bello CJN in Egboghonome v. The State (1993) 9 SCNJ 1, 21 – 22, approvingly, quoted the observation of Idigbe J.S.C. in Jizurumba v. The State (1976) NSCC (Vol. 10) 156 on the rationale for the introduction of this safeguard: A witness may have a good explanation for the inconsistency between his previous unsworn statement and his evidence in Court, or the inconsistency may, indeed, be minor or unsubstantial … in which case the inconsistency may fail to discredit his entire testimony. Thus, it was only where the witness was unable to explain the inconsistency satisfactorily that the rule was applied. The rule was limited to the statement of a witness and his inconsistent testimony. However, in 1985, the decision in Owie v. The State (1985) 1 NWLR (Pt. 3) 470, for the first time, extended the rule to the statement

and evidence of the accused person. Subsequent decisions such as Omogodo v. The State (1987) 5 – 7 SC 5; Stephen v. The State (1986) 5 NWLR (Pt. 46) 98; Oladejo v. The State (1987) 3 NWLR (Pt. 61) 419; Umani v The State (1988) 19 NSCC (Pt. 1) 137; Mbenu v. The State (1988) 3 NWLR (pt. 84) 615 perpetuated this trend. Interestingly, in 1989, this Court went back to the earlier position in Udo v. The Queen (supra) and held that the principle did not apply to an accused person and his confessional statement, Ikemson v. The State (1989) 3 NWLR (Pt. 110) 455, 473. Such was the uncertainty that characterised the application of the rule in Nigeria, hence, the law on the effect of the inconsistency between the sworn oral testimony and previous statements made by an accused person, was enveloped in unwarranted recondity. See C.C. Nweze, Contentious Issues and Responses in Contemporary Evidence Law in Nigeria [Volume One] (Enugu: IDS, University of Nigeria, 2003). In 1991, in Asanya v. The State (1991) 3 NWLR (pt. 180) 422, this Court had another opportunity to examine the rule. The question there was whether the rule was applicable when the witness was an accused

person himself. In that case, the apex Court declined the invitation to overrule the line of cases in Omogodo v. The State (supra); Stephen v. The State (supra); Oladejo v. The State (supra); Umani v. The State (supra); Mbenu v. The State (supra) which had extended the rule to the accused person himself. This state of affairs continued until 1993 when, in Egboghonome v. The State (supra), this Court streamlined the application of the rule. Delivering the leading judgment of the Court, Bello CJN (Karibi-Whyte J.S.C. dissenting) described the decisions in the Saka Oladejo and Asanya cases (supra) as “a departure from the long established principle laid down in Udo v. The State (supra) and the several decisions of this Court thereafter that [the] inconsistency [rule] does not apply to retracted extra-judicial confession of an accused.” According to His Lordship, the application of the rule in R v. Golder to retracted confessions would tantamount to overruling, by implication, all the relevant decisions of this Court from 1964 to 1992. His Lordship was not unmindful of the sociological implication of the extension of the rule for he held [at page 31] that: …

grave miscarriage of justice would also be occasioned by the extension. It may perpetuate injustice to the society as murderers would be at large simply because after a second thought, they have retracted their confessions. He therefore overruled the decisions in Saka Oladejo (supra) and Asanya (supra) and so on. Consistent with the doctrine of stare decisis, post Egboghonome decisions have reverted to the position in Udo v. The Queen (supra), namely, that the inconsistency rule does not apply to the previous confessions of an accused person and his evidence in Court for example: Akpan v. The State (2001) 15 NWLR (pt. 737) 745; Nsofor v. The State (2004) 18 NWLR (Pt. 905) 292; Dibie and Ors v. State (2007) All FWLR (pt. 363) 83; Amoshima v. State (2009) 32 WRN 47; Saidu v. State (2009) 29 WRN 86; Aiguoreghian v. State (2004) 1 FWLR (Pt. 170) 129, 152; Adeoti v. State (2009) All FWLR (Pt. 454) 1450, 1509-1511 etc.”
It is settled that the inconsistency rule does not apply to the previous confessional statements of the accused and his evidence in Court and if the Appellant contends that Exhibit A1 and A2 are not confessional statements, on what basis

would the need to introduce the inconsistency rule since it does not apply to a confessional statement? The argument on the inconsistency rule is self-defeating and irrelevant here.

The Appellant also challenged the trial Judge’s reliance on circumstantial evidence to convict the Appellant. It is admitted that a trial Court is at liberty to draw inferences from established facts before it in determining the guilt or otherwise of an accused person particularly where there is no direct evidence, so it is an accepted way of proving the guilt of a person accused of a crime. Circumstantial evidence was explained in the case of ANYASODOR V STATE (2018) LPELR-43720(SC) in the following way:
“As I stated supra, in this instant case, the prosecution (respondent) relied heavily on circumstantial evidence to prove its case against the appellant at the trial Court since there was no eye witness to the murder of the deceased. In the case of Taylor & 7 Ors Vs R 21 Cr App R 20 at page 21, Lord LordHewart, Lord Chief Justice of England described circumstantial evidence as follows: – “It is evidence of surrounding circumstances which by undersigned

coincidence is capable of proving on proposition with the accuracy of mathematics.” See also The State v. Ogbubunjo (2001) 1 SCNJ 102; Udoebere v. The State (2001) 6 SCNJ 70. Circumstantial evidence is as good and sometimes even better than any other sort of evidence and what is meant by it is that there is a number of circumstances which are accepted so as to make a complete and unbroken chain of evidence. If that is established to the satisfaction of the trial Court, it may properly act upon such circumstantial evidence. See Olutola v. The State (2009) 2 SCNJ 135. I must however add here, that the nature of circumstantial evidence that a trial Court will consider and act on in order to convict an accused person must be cogent, complete, unequivocal and compelling leading to the irresistible conclusion that it was the accused under trial and no other person, was responsible in committing the offence charged. See cases of Peter Eze v. The State (1976) 1 SC 125; UweIdeghi Esai and Ors vs. The State (1976) 11 SC 39. Similarly, the circumstantial evidence to be used in convicting an accused must also be incompatible with the innocence of the accused.” Per SANUSI, J.S.C.

See also the following: AMOS V. STATE (2018) LPELR 44694 (SC); ESSEYIN V. STATE (2018) LPELR-4446(SC); SANI V. STATE (2017) LPLER 43475(SC).
In the light of above, circumstantial evidence is good and permitted to be relied upon, the Court can infer from surrounding circumstances which can be logically inferred and can ground a conviction. See OBINNA OSUOHA V THE STATE (2010) 16 NWLR (Pt. 1219) 364 at 375.

Was there need for corroboration of PW2’s evidence? The law that created the offence did not state that the evidence required to prove the offence requires corroboration and neither did the Evidence Act provide for such a requirement, the Appellant has a misconceived idea about how a crime should be proved. The evidence of a sole witness can establish the guilt of an accused person. See KWARI V. RAGO (2000) LPELR-11976 (CA) which held thus:
“It is trite and more than settled that one credible witness is sufficient to establish a claim. The evidence of this witness is either inherently contradictory or fortified the respondent’s case.”
Per SALAMI, J.C.A
See also the case of AYEDATIWOR V. STATE (2014)

LPELR-23034(SC) and EXAMINER-OSIOBE & ORS V. GWEDE & ORS (2019) LPELR-47815 (CA).

Generally, the prosecution is not required to call a host of witnesses if it can prove all the ingredients of the offence by credible and cogent evidence that is believed by the Court. See the case of AYENI V. STATE (2016) LPELR-40105(SC) wherein the apex Court held thus:
“It is pertinent to state that there is no duty on the prosecution to call a host of witnesses in order to prove its case. Its duty is to call only material witnesses. Once it is able to produce credible and convincing evidence of the commission of the offence by the accused to a level beyond reasonable doubt, the onus is discharged. What is important is the degree of proof and not the number of witnesses called. One credible witness, if believed, is enough. See: Chukwu V. The State (1992) 1 NWLR (Pt. 217) 255 @ 263 – 264 H – A; Theophilus v. The State (1996) 1 NWLR (Pt. 423) 139 @ 151 C – D; Odunlami V. The Nigerian Navy (2013) LPELR – SC 328/2011; Alonge V. I.G.P. (1959) SCNLR 516.”
Per KEKERE-EKUN, J.S.C
See also the cases of ADAMU V. STATE (2019) LPELR 46902(SC) and OMOGODO V. STATE (1981) LPELR-24879(SC).

The Appellant argued that the trial Judge acted on suspicion to convict the Appellant. It is settled that suspicion no matter how strong cannot ground a conviction. See the case of STATE V. AJAYI (2016) LPELR-40663(SC) where the Court held thus:
“The entire case of the prosecution, in my view was built on suspicion. The law is that suspicion, no matter how strong cannot ground a conviction for a criminal offence. It cannot take the place of legal proof. See: Abieke vs The State (1975) 9-11 SC (Reprint) 60; Idowu vs The State (1998) 11 NWLR (Pt. 574) 354; Shehu vs State (2010) 8 NWLR (Pt. 1195) 112.”
Per KEKERE-EKUN, J.S.C
See also the following cases of IGBIKIS V. STATE (2017) LPELR-41667(SC); OBIAKO & ANOR V. STATE (2002) LPELR-2186(SC) and ORISAN V. PEOPLE OF LAGOS STATE (2019) LPELR-46509 (CA).

As we gravitate towards looking at the evidence upon which the trial Court convicted the Appellant, we still have to look at the complaint that the trial Judge failed to evaluate evidence. It is the primary duty of a trial Judge to evaluate evidence, the Appellate Court can come in to perform that duty only

where the trial Judge failed in his duty to evaluate the evidence before it, see the case of BELLO V. FRN (2018) LPELR 44465(SC) where the apex Court held thus:
“This law is that it is only where and when a Court fails to evaluate evidence at all or properly that a Court of Appeal can intervene, and evaluate or re-evaluate such evidence. As a general rule therefore, when the question of evaluation of evidence does not involve credibility of witnesses but against the non-evaluation or improper evaluation of the evidence, the appellate Court is in as good a position as the trial Court to do its own evaluation – See FATAI VS THE STATE (2013) 10 NWLR (pt. 1361) 1 at 21 SC. So, when the question of evaluation of evidence involves credibility of witnesses, and appellate Court cannot do much since it is the trial Court that saw them, heard them and watched their demeanour that is in the vantage position to believe or disbelieve witnesses, and this can never be captured by an appellate Court, which only has the “cold printed record to contend with”… In this case, the Court below found that there was evidence before the trial Court from which it could

reasonably have come to the conclusion it did that the Appellant was guilty as charged, and so, its decision that the verdict of the trial Court must stand, cannot be faulted, this Court cannot interfere with that finding.”
Per BAGE, J.S.C.
See the case of MINILODGE LTD & ANOR V. NGEI & ANOR (2009) LEPLR-1877(SC); OKUSANYA & ORS V. ADETONA & ORS (2018) LPELR-44878 (CA); OGUNDALU V. MACJOB (2015) LPELR-24458 (SC).
Where a party complain that the Court failed to evaluate evidence, he must go further to identify the piece of evidence that was not evaluated. He cannot make a general or sweeping allegation without hitting the nail on the head, see NKEBISI & ANOR V. STATE (2010) LPELR-2046(SC) wherein the apex Court held thus:
“It is accepted that an appellant who relies on improper evaluation of evidence to set aside the judgment, has the onus to identify or specify the evidence improperly evaluated or not evaluated and to show convincingly that if the error complained of had been corrected, the conclusion reached, would have been different and in favour of the party complaining of wrong evaluation. Where a trial Court

believes a witness, the onus shifts to the appellant to show that the trial Court failed to consider the relevant facts. See the case of Adelumola v. The State (1988) 1 NWLR (Pt. 73) 683 @ 691; (1988) 3 SCNJ (Pt. 1) 68, 74, 75.”
Per OGBUAGU, J.S.C (P. 23, paras. D-G)
See also the case of STATE V. YUSUF (2006) LPELR-4802(CA); IGAGO V. THE STATE 2 104 AT 122 and AKANMODE & ANOR V DINO & ORS (2008) LPELR-8405(CA)
The Appellant’s Counsel argued that the totality of the evidence was not evaluated without specifying the piece of evidence not evaluated. The entire evidence before the Court is straight forward and I have perused the judgment of the trial Court at pages 169 -198 of the record of appeal, it is clear on the record that the trial Judge evaluated the evidence and ascribed probative value at pages 188-195 before relying on it to convict the Appellant. Once the primary duty of evaluation is carried out by the trial Judge, this Court is restricted and cannot just interfere except where there is perversity in the judgment and when the duty not properly carried out.

Looking at the elements of the offence, the first requirement to

be proved is that the person was kidnapped. The fact of the disappearance of Samuel Philip was not disputed as the prosecution witnesses all attested to the missing child particularly the mother, the victim being a child of just 4 years old. The Appellant also admitted the fact that the said Samuel was missing. That ingredient is proved. It is the second ingredient that is the contested ingredient and it requires the prosecution to prove that the accused kidnapped the person in question in order:
a. That such person might be killed; or
b. That such person might be disposed of as to be put in danger of being killed.

It is the connection of the crime with the Appellant that is the bone of contention here. PW2 told the Court how the child was playing along 2 other children in the Appellants room, she took him away but the child returned to the room of the Appellant, this the Appellant admitted but suddenly the child went missing, the Appellant was the last person seen with the child in his room and after that the mother reported the missing child and the Appellant also joined in searching for the child and later asked for N50,000.00 from the

mother to bring back the child. It is important to note that the trial Judge believed the testimony of the mother, PW2 and saw her in the witness Box and observed her demeanour under cross-examination, his basis for believing her cannot be questioned by this Court.

Furthermore, the trial Court also analysed the statements of the Appellant, his oral testimony and the evidence of PW1 particularly on the defence of alibi raised by the Appellant which the Police duly investigated. He admitted in Exhibits A1 and A2 that he was with the child and that was long before he disappeared on his purported journey. The Appellant told the police he travelled to Kogi to see one Ola Jimi at Ayetoro, the said Olajimi told the Police that the last time he saw the Appellant was over two years preceding the visit of the Police. The Appellant raised a second alibi when he said he went to see one aunty Amina who owed him money but got to Kogi and could not find her. If he could not find aunty Amina how could the Police find her? That line of alibi obviously cannot be investigated because it was dead on arrival. The plausible alibi also caved in upon investigation so

when the Appellant disappeared from his house on the day the child also disappeared where did he go to? His contention that he was in Ayetoro was proved untrue. He also admitted being in the vicinity after the child got missing and pretended to help in searching for the child. The other angle that makes it irresistible to fix the Appellant to the crime is the collapse of the alibi and why would the Appellant demand money from PW2 to produce the child? The Appellant’s counsel dwelt so much on the issue of alibi and alleged that it was not investigated. PW1 named the officers that went to Ayetoro and interviewed Olajimi and reported back their findings, as investigating Police Officers their duty is to tell the Court their findings and that was what PW1 did. If the Appellant felt that the presence of Olajimi was necessary for his defence, he should have called him as a witness. The defence of alibi is not a magic wand that once it is waved, it automatically exculpates the accused. On the meaning of Alibi and what is expected of the police is stated in the case of SANMI V STATE (2019) LPELR-47418(SC) wherein the apex Court held thus:

“The Appellant claimed that he was elsewhere, and alibi is Latin for “elsewhere”. The defence of alibi is based on the physical impossibility of an Accused being guilty by placing him in another location at the relevant time. It also means – “the fact or state of having been elsewhere when an offence was committed”- see Black’s Law Dictionary, 8th Ed. Once the defence of alibi is properly raised during investigations, it is the duty of the Police to investigate it and for the Prosecution to disprove it. But for the defence of alibi to be worthy of investigation, it must be precise and specific in terms of the place that the Accused was and the person or persons he was with and possibly what he was doing there at the material time – see Shehu V. State (2010) 8 NWLR (Pt. 1195) 112 and Ochemaje V. State (2008) 15 NWLR (Pt. 1109) 57, wherein this Court, per Tobi, J.S.C. expatiated on the issue as follows – It is not the law that the Police should be involved in a wild goose chase for the whereabouts of the Accused person at the time the crime was committed. No. That is not the function or role of the Police. The Accused must give specific particulars of where he was at the time

of the material time to enable the Police move straight to that place to carry out the investigation required by law – Investigation is not a necessity if the evidence unequivocally points to the guilt of the accused person, either in the evidence of the witnesses or under cross-examination of the accused or his witness.” Per AUGIE, J.S.C.
Alibi may not even be investigated if the evidence before the Court fixes the accused at the scene of crime, see the case of STATE V. EKANEM (2016) LPELR-41304(SC) wherein the Court held thus:
“Although it is the duty of the prosecution to check on a statement of alibi by an accused person and disprove the alibi, if the prosecution adduces sufficient and accepted evidence to fix a person at the scene of crime at the material time, his alibi is thereby logically and physically demolished and that would be enough to render such plea ineffective as a defence. In other words, where there is strong and credible evidence which fixed a person at the scene of the crime, his defence of alibi must fail. See Ebenehi v. The State (2009) 6 NWLR (Pt. 1138) 431 at 448; Ndukwe v. State (2009) 7 NWLR (Pt.1139) 43.”

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Per AKA’AHS, J.S.C
See also the cases of IDIOK V. STATE (2008) LPELR 1423; CHUKWUNYERE V. STATE (2017) LPELR-43725 (SC).
In this case, it was investigated and found to be false because all witnesses admitted that the Appellant travelled after the disappearance of the child, he said he went to Kogi but where and who saw him, he alone knows where he went to and he also told the police he went to Ayetoro and it was found not true, it means he was in an undisclosed location and there is no how the Police can investigate such alibi. Public funds cannot be used to junket around when there is no lead. In any case, when the Police investigate as a team, any member of the team can tell the Court what each other member did and it cannot be hearsay. See ANYASODOR V. STATE (2018) LPELR-43720(SC).
Where the defence of alibi is raised and cannot fit into facts established, the prosecution has no duty to investigate, it becomes a mechanical duty with no useful purpose. The evidential burden on the Appellant was not discharged and he admitted playing with the missing child shortly before the child disappeared and the principle of last to be seen with the

child can rightly apply in this case as also relied upon by the trial Judge. The circumstantial evidence points to one direction and that is the Appellant is responsible for the disappearance of the child.

The Appellant in his Appellant’s Reply on points of law reargued the issues already covered by the Appellant’s Brief and that is not the function of a reply brief, it was reiterated by the apex Court in the case of IDAGU V. STATE (2018) LPELR-44343(SC) wherein the apex Court held thus:
“…Thereafter, the Appellant reiterated the same arguments and cited the same cases, as in his main brief, which is not the role of a reply brief. A reply brief is limited to finding answers to the questions raised in the Respondent’s brief, which the Appellant has not addressed or dealt with in the main brief. It is not the forum for the Appellant to strengthen his main Brief by repeating or expanding the arguments contained therein FRN V. Iweka (2011) LPELR-9350(SC). In this case, all the arguments in violation of this principle in the Reply Brief, will be discountenanced.” Per AUGIE, J.S.C
See the case of KALU V. STATE (2017) LPELR-42101(SC);

DAIRO V. UNION BANK & ANOR (2007) LPELR-913(SC) and ABDULLAHI V. MILITARY ADMINISTRATOR (2009) LPELR-27(SC).

The strength and credibility of the circumstantial evidence was challenged by the Appellant. As stated from the onset, proof beyond reasonable doubt is not proof beyond all shadow of doubt. The circumstantial evidence presented is strong enough to fix the Appellant to the crime and I agree with the evaluation and ascription of value to the evidence by the trial Court leading to the findings. I decline the invitation to interfere.

I agree with the Appellant that a confession of a co-accused cannot be employed against the other accused so as to secure a conviction unless adopted by the said Defendant. The initial 2nd accused who was discharged said in his statement that the Appellant knows the where about of the missing child. The Court cannot use such evidence against the Appellant. However, as observed above, the circumstantial evidence against the Appellant positions him squarely at the door step of the disappearance of the innocent child. The other area of complaint is on the sentence pronounced by the Court on the Appellant allegedly

without recourse to the provisions of the law and the administration of criminal justice system. The point the Appellant’s counsel tried to make was that the sentence was excessive. The law prescribes a sentence of not more 14years and the Court imposed 8. The law also stipulates a fine in addition and none was imposed by the Judge, Section 274 of the Penal Code says:
“whoever kidnaps or abducts any person in order that such person or persons may be killed or may be so disposed as to be put in danger of being killed, shall be punished with imprisonment for a term which may extend to fourteen years and shall be liable to fine.”
Sentence is generally at the discretion of the trial Judge, see ONAH V FRN (2017) LPLER-43535(CA) which the Court held:
“Meanwhile, it is also trite that a trial judge has discretion in matters of sentence, which must be exercised judicially and judicially. Thus, an Appellate Court will not readily interfere with the exercise of such discretion unless same is shown to have been wrongly exercised or as it relates to sentencing, the sentence imposed is shown to be manifestly excessive. In IBRAHIM USMAN ALI v. FRN

120 – 161 LPELR – 40472 (CA) 17 – 18, paras A – B, this Court, per NIMPAR, J.C.A., held: “It is trite that ordinarily, an appellate Court will not interfere with a sentence imposed by a trial Court, unless it is manifestly excessive in the circumstances or wrong in principle. See ADEYEYE v. THE STATE (1968) 1 ALL NLR 231 @ 241 where ADEMOLA CJN (of blessed memory) held as follows: “It is only when a sentence appears to err in the principle that this Court will alter it. If a sentence is excessive or inadequate to such an extent as to satisfy this Court that when it was passed there was failure to apply the right principles, then this Court will Intervene.” EKO, J.C.A. in the case of ILYASU SUMAILA v. THE STATE (2012) LPELR – 19724, in the same vein held as follows: “The trial Judge, in matters of sentence, has discretion. That cannot be denied. And it is also settled that an appellate Court will not readily interfere with the sentence imposed by the trial Judge unless it is manifestly excessive or wrong in principle. See STEPHEN v. THE STATE (CA/C/117/2007 OF 10TH DECEMBER, 2008) T.S.A. INDUSTRIES LTD v. KEMA INVESTMENT (2006) 7 SC (PT 964) 1.

The Appellant therefore has a duty to establish necessary conditions to warrant interference.” Per OBASEKI-ADEJUMO, J.C.A.
See also the case of EROMOSELE V FRN (2018) LPELR-438521(SC) which held thusly:
“Learned counsel insists that the discharge of the Appellant by the trial Court and the Court of Appeal from more serious charges of manufacturing the drug My Pikin and causing death, is enough mitigating factor that would have brought about the reduction in the number of years of imprisonment the appellant is sentenced to. In Omokuwajo vs FRN (2013) LPELR 20184 which was cited and relied upon by learned counsel for the Respondent, this Court said:- “…the general rule is that sentencing is a matter completely at the discretion of the trial Court provided the discretion is exercised judicially and judiciously within the law. An appellate Court consequently will not interfere with the exercise of discretion by the lower Court unless the sentence imposed is manifestly excessive in the circumstances or wrong in principle.” The charge for which the Appellant was convicted carries a sentence of not more than 10 years. The trial Court imposed a sentence that

is less than 10 years imprisonment. This sentence is surely within the provision of the law. It is on the basis of the fact that the sentence is within the law, that the lower Court upheld same in the following words: – “Learned counsel for the Appellant has raised no valid point as to why we should interfere with the lower Court’s discretion in imposing a sentence of seven years on count 4. The fact that the Appellant is a first offender may be one of the reasons taken into consideration by the lower Court in the exercise of its discretion to impose the sentence of seven years instead of the maximum ten years. I find no reasons whatsoever to interfere with the lower Court’s exercise of discretion in imposing a sentence of seven years with respect to count 4.” The law is settled that where the decision of a trial Court is substantially based on the exercise of discretion, an appellate Court will not interfere with the discretion unless the trial Court failed to exercise its discretion judiciously or judicially. In the instant case, the exercise of trial Court’s discretion with regard to the sentence it passed was neither frivolous nor arbitrary.

Since discretion is always unfettered, this Court cannot take steps to fetter such discretion, except for good and substantial reasons. See ACME Builders Ltd vs. K.S.W.B (1999) 2 NWLR (Pt. 590) 288; Chigbu vs Tonimas (Nig) Ltd (1999) 3 NWLR (Pt. 593) 115; University of Lagos vs Olaniyan (No. 1) (1985) 1 NWLR (Pt.1) 156; Hamza vs Kure (2010) 10 NWLR (Pt.1203) 630.” Per GALUMJE, J.S.C
The Appellant is under a misconception that there is an option of fine, no, there is none. What the law says is a convict shall also be liable to fine. In fact, the trial Court had no discretion not to impose fine because of the use of the word “and shall be liable to fine”. The word “And” is a conjunction, it is used to connect words, phrases or clauses together with as well as, in addition to; besides; also; and moreover, that is how it is defined by Dictionary.com. It therefore means that the sentence is conjoined and made up of years of imprisonment and fine. The trial Court imposed only the years of imprisonment without the fine. When a trial Judge has exercised his discretion judicially and judiciously, the Appellate Court cannot interfere unless the

Appellant can show that discretion was wrongly exercised. Is the sentence here excessive? The maximum sentence in this case is 14 years and 8 years was imposed to take effect from the time the Appellant had been in the Nigerian Correctional Centre, I do not see any arbitrariness or failure to consider relevant materials in imposing the sentence given the circumstances, particularly that the offence is kidnapping which has become a pandemic in this country. It is now a daily occurrence cutting across the length and breadth of this Nation with travelers, farmers, students and even residents in the cities not spared. The term of 8 years is not excessive, more so the time spent awaiting trial has been taken into account. The Appellant did not plead guilty to mitigate sentence but the seriousness of offence demands the strictest Sentence, taking an innocent child from the warmth of his mother is totally condemnable and should be severely punished to discourage other offenders doing the same. I decline to interfere and affirm the sentence.

In the light of the resolution above, this appeal lacks merit and is hereby dismissed. The judgment of HON. JUSTICE S. O. ABOKI

delivered on the 12th day of November, 2019 is hereby affirmed.

IGNATIUS IGWE AGUBE, J.C.A.: I had the privilege of being furnished with the craft of the Lead Judgment of my learned brother. HON. JUSTICE YARGATA BYENCHIT NIMPAR, J.C.A. and I am in total agreement with his reasoning and conclusion.

The Penal Code applicable in the Northern States of Nigeria views the abduction or kidnapping of children for whatever purpose and also takes a serious view of the offence abduction, including child betrothal which is the current trend in Nigeria.

Learned Counsel to the Appellant (Accused person) argued in Issue Number 1 (One) that it is the duty of the prosecution to prove the guilt of the Accused person beyond reasonable doubt by presenting cogent and admissible evidence in Court. Section 135 of the Evidence Act, 2011 provides as follows: –
“135(1) 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.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to Section 139 of this Act, on the

person who asserts it, whether the commission of such act is or is not directly in issue in the action.
(3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on to the defendant.”

To consider the circumstantial evidence against the Accused person, it must always be narrowly examined, if only because this type of evidence may be more easily fabricated to cast suspicion on innocent persons. To support a conviction, circumstantial evidence must not only be cogent, complete and unequivocal, but compelling and lead to irresistible conclusion that it was the accused and no one else who had committed the offence. In drawing inference of the guilt of an accused person from circumstantial evidence, great care must be taken not to fall into serious error based upon the fallibility of evidence. SeeUdedibia & Ors. vs. State (1976) 11 SC 133 at 138-139; Michael Onufrejiz vs. R (1955) APP. R. 1 and Esai & Ors. vs. State (1976) 11 SC 39 at 49
In The Law of Evidence, 4th edition by T. Akinola Aguda, the learned author wrote at page 10 as follows:

“Where direct testimony of eye-witnesses is not available, it is permissible for the Court to infer from the proven facts the existence of other facts that may be logically inferred. It has for long been established in our law that any case – including a charge of murder may be proved by circumstantial evidence. See R. vs. Sola Sati (1938) 4 WACA 10; Ogundipe & Ors. vs. R. (1954) 14 WACA 458. Circumstantial evidence must always be narrowly examined, it only because this type evidence may be more easily fabricated to cast suspicion on innocent persons. To support a conviction, circumstantial evidence must not only be cogent, complete and unequivocal, but compelling and lead to irresistible conclusion that it was the accused and no one else who had committed offence. In drawing inference of the guilt of an accused person from circumstantial evidence, great care must be taken not to fall into serious error based upon the fallibility of evidence.
Although in a charge of murder in which the body is not round the fact of death is provable by circumstantial evidence, before the accused can be convicted the fact of death should be proved by such circumstances as

render the commission of the crime certain and leave no reasonable doubt.”

The learned Counsel to the Appellant (Accused person) also raised the defence of alibi in Issue Number 2 (Two). In Nwaturuocha vs. The State (2011) 3 SCNJ 148 where the Supreme Court explained the meaning of alibi at page 157 paragraphs 35 to page 159 per Fabiyi, J.S.C. as follows:
“Alibi means elsewhere. It is the duty of an accused person who pleads it to furnish sufficient particulars of same. He must furnish his whereabouts and those present with him at the material time. It is then left for the prosecution to disprove same. Failure to investigate may lead to an acquittal. See Yanor vs. The State (1965) NMLR 337; Queen vs. Turner (1957) 34; Bello vs. Police (1956) SCNLR 113; Gachi vs. The State (1973) 1 NWLR 331 and Odu & Anor. vs. The state (2001) 5 SCNJ 115 at 120; (2001) 10 NWLR (Pt. 772) 668…”
In Ikemson & Ors. vs. State (1989) S SCNJ (Pt. 1) 54 by Karibi-Whyte, J.S.C. at page 35 as follows:
“Counsel submitted that the failure of the prosecution to investigate the alibi set up by the appellants was fatal to their identification. The Court of

Appeal ought to have warned itself of the risk of miscarriage of justice in relying on the evidence. It seems to me that Counsel to the appellants was under the impression that identification parade is a sine qua non in all cases where there has been fleeing encounter with the victim even if there is other evidence leading conclusively to the identity of the perpetrators of the offence. I do not think so agree with the submission of Counsel to the respondent that an identification parade is only essential in the situations enunciated in R. vs. Turnbull & Ors. (1976) 3 WLR 445 at p. 447. These are cases where the victim did not know the accused before and was confronted by the offender for a very short time, and in which time and circumstances he might not have had full opportunity of observing the features of the accused.
In such a situation, a proper identification will take into consideration the description of the accused given to the Police shortly after the commission of the offence, the opportunity the victim had for observing the accused, and what features of the accused noted by the victim and communicated to the Police marks him out from other persons.

In the instant case, PW1 bad described the special features of the appellant, as fair in complexion and wearing a beard. He was quite close to him during the encounter. It was with no difficulty that he recognised him when 1st appellant was arrested and brought following information by the third appellant.”

Issue Number 3 (Three) distilled and argued by the learned Counsel to the Appellant dealt with the evaluation of evidence and ascription of probative to it. Evaluation of and the ascription of probative value to the evidence of witnesses lies within the province of the learned trial Judge. The Legal Sage Oputa, J.S.C. (now of blessed memory) in ONWUKA V. EDIALA (1989) 1 NWLR (PT. 96) 187, 208-2019 posed the pertinent questions as to: “What does evaluation of evidence consist of? What is the meaning of the expression evaluation?” which he answered as follows: “To evaluate simply means to give value to, to ascertain the amount, to find numerical expression for it….” Evaluation of evidence thus entails the assessment of that evidence so as to give value or quality to it. Evaluation demands that evidence adduced by both parties is

assessed and weighed so as to give probative value or quality to it. Review of evidence is not the same thing as evaluation of evidence. The former entails a reproduction of evidence of witnesses in summary form. Actual evaluation entails reasoned belief of evidence of one party to the other….”
In the instant case, the learned Trial Judge carried out a discreet appraisal and evaluation of the totality of the evidence of the Witnesses for the Prosecution and the Appellant and rightly found the Appellant guilty of the of kidnapping or abduction of the victim and sentenced him to 8 (Eight) years’ imprisonment which to my mind is most lenient in view of the gravity of the offence and its prevalence in our dear Country Nigeria. The Appellant should thank his stars for being tried by a Judge with bleeding heart.
On the whole, I agree with my Noble Lord that this Court cannot interfere with the sentence imposed on the Appellant for in my view, the learned Trial Judge judiciously and judicially exercised his discretion in the imposition of a sentence less than the maximum of 14 (Fourteen) years.

Accordingly, I shall also dismiss the Appeal for lacking in merit and affirm the erudite judgment of His Lordship S. O. Aboki, J., which was delivered on the 12th day of November, 2019 at the Lafia Division of the High Court of Nasarawa State of Nigeria.

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I read in advance the lead judgment of my Learned Brother, YARGATA BYENCHIT NIMPAR, JCA which has just been delivered. I agree with the reasoning and conclusion that this appeal lacks merit and is thereby dismissed.

To this end, the judgment of Hon. Justice S. O. Aboki delivered on the 12th day of November, 2019 in charge No. NSD/LF/9c/2017 is affirmed.

Appearances:

JAMES HOPE, Esq. with him, GIDEON ENENCHE, Esq. For Appellant(s)

Dr. ABDULKARIM A. KANA, Hon. Attorney General of Nasarawa State with him, H. H. ABUBAKAR Assistant Director MOH Nasarawa, M. J. Abokee PSC and E. J. Ihah SSC. For Respondent(s)

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