BIRIFOU v. STATE (2020)

BIRIFOU v. STATE

(2020)LCN/14069(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Friday, March 13, 2020

CA/B/362C/2015

Before Our Lordships:

Tunde Oyebanji Awotoye Justice of the Court of Appeal

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Between

DANIEL BIRIFOU APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

STANDARD OF PROOF OF CRIMINAL TRIAL

My lords, issue one and two deal directly with the requirement of the law that an allegation of the commission of a crime must be proved beyond reasonable doubt by the Prosecution in order to secure the conviction of an Accused person so charged. See Section 135 of the Evidence Act, 2011 (as amended). See also Godwin Igabele V. The State (2006) 6 NWLR (Pt. 975) 103. See also Lori V. The State (1980) 8 – 11 SC 81; Emeka V. The State (2001) 14 NWLR (Pt. 734) 666; Peter Igho V. The State (1978) 3 SC 87; Archibong V. The State (2006) 14 NWLR (Pt. 1000) 349.
To succeed therefore, the Prosecution must lead credible evidence establishing the essential ingredients of the offence charged. In doing so the Prosecution need not call a horde of witnesses since in law the credible and cogent evidence of a sole witness will be sufficient to secure a conviction for an offence no matter the heinous nature of the offences charged in so far as corroboration is not required by law. Thus, once the essential ingredients of the offence charged is sufficiently established by the evidence put forward by the Prosecution, it is immaterial that a particular witness was not called or that a particular document was not tendered in evidence. See Alhaji Muadzu Ali V. The State (2015) 5 SCM 26. See also Odili V. The State (1977) 4 SC 1; Oguonzee V. The State (1998) 5 NWLR (pt. 551) 521; Alonne V. IGP. (1959) 4 FSC 203; Ibodo V. The State (1975) 9 – 11 SC (Reprint) 80; Abeke Onafowokan V. The State (1987) 1 NWLR (Pt. 61) 538. See also Akpabio V. The State (1994) 7 NWLR (Pt. 359) 635; Idiok V. The State (2008) 13 NWLR (Pt. 1104) 225 @ Pp. 250 – 251. See also Olayinka V. The State (2007) 4 SCNJ 53 @ p. 73; The State V. Ajie (2000) 3 NSCQR 53 @ p. 66; Adebayo Rasaki V. The State (2014) 10 NCC 1.

In law, the Prosecution has open to it three basic types of evidence with which to prove the commission of an offence charged against an Accused person beyond reasonable doubt, namely: a: Direct eye witness evidence; b: Confessional statement and c: Circumstantial evidence. See Godwin Igabele V. The State (2006) 6 NWLR (Pt. 975) 103. See also Lori V. The State (1980) 8 – 11 SC 81; Emeka V. The State (2001) 14 NWLR (Pt. 734) 666; Peter Igho V. The State (1978) 3 SC 87; Archibong V. The State (2006) 14 NWLR (Pt. 1000) 349. PER GEORGEWILL, J.C.A.

THE OFFENCE OF CONSPIRACY

Generally, conspiracy is an agreement between two or more persons to do an unlawful act or to do a lawful act by an unlawful means. There must be an agreement which is an advancement of an intention conceived in the mind of each person secretly mens rea. The secret intentions must have been translated into an overt act or omission or mutual consultation and actus Reus. In law, a conspiracy consists not merely in the intention of two or more but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as a design rests in intention only it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced if lawful, punishable if for a criminal object or for the use of criminal means. See Odunayo v. State (2014) 12 NWLR (Pt. 1420) 1. See also Oduneye V. State (2001) 2 NWLR (Pt. 697) 311; Mulcahy V. R (1868) 3 H.L. @ p. 317; Patrick Njovens & Ors. V. The State (1973) 5 S.C. 17; Daboh & Anor V. The State (1977) 5 SC.197;
The law is settled that the proof of conspiracy is in many cases a matter of inference from certain criminal acts of the parties concerned done in pursuance of a criminal purpose in common between them to which are focused towards the realization of their common or mutual criminal purpose. Now, in a count alleging Conspiracy to commit Kidnapping, the Respondent being the Prosecution carried on it the burden, which does not shift, to prove the guilt of the Appellant beyond reasonable doubt by leading credible evidence to the satisfaction of the Court below establishing all the essential ingredients of the offence of Conspiracy, to wit: a.
i. An agreement between two or more persons to do or cause to be done, some illegal act or some act which is not illegal but by illegal means.
ii. Where the agreement is other than an agreement to commit an offence that some act besides the agreement was done by one or more parties in furtherance of the agreement.
iii. Specifically that each of the accused individually participated in the conspiracy. See Tanko V. State (2009) All FWLR (Pt. 456) 2013 @ p. 2014.
Thus, the offence of conspiracy is complete when it is shown that there was a formation of a scheme or agreement between the parties, but before the doing of the act for which the conspiracy is formed. The proof of conspiracy is generally a matter or inference deduced from certain criminal acts of accused done in pursuance of an apparent criminal purpose in common between them. PERGEORGEWILL, J.C.A.

THE INGREDIENTS OF THE OFFENCE KIDNAPPING

Now, the very notorious offence of kidnapping is provided for in Delta State by Section 364(2) of the Criminal Code Law CAP. C21, Laws of Delta State 2006 occurs where any person unlawfully imprisons any person within Nigeria in such a manner as to prevent him from applying to a Court for his release or from discovering to any other person the place where he is imprisoned, or in such a manner as to prevent any person entitled to have access to him from discovering the place where he is imprisoned. Thus, in a count alleging Kidnapping, the Respondent being the Prosecution must lead credible and cogent evidence establishing all the essential ingredients of the offence of Kidnapping, to wit
i. That the victim was forcefully seized and taken away by the accused.
ii. That the victim was taken away against his or her consent.
iii. That the victim was unlawfully detained or imprisoned. See Okashetu V. State (2016) LPELR – 40611 SC, See also the English case of R V Cort (2004) 4 All ER 137.
Thus, flowing from the essential elements of the offence of kidnapping as above is the fact that the gist of the offence of kidnapping lies in the taking or carrying away of one person by another with force, fraud or deception without the consent of the person so taken or carried away and without lawful excuse. The offence of kidnapping is therefore, complete when the victim is carried away against his or her wish. PER GEORGEWILL, J.C.A.

MEANING OF CONFESSIONAL STATEMENT

Now, what then is a confessional statement in law and why does the law permits the conviction of an Accused person even based solely on his confessional statement where made free and voluntarily? A confession is an admission made at any time by a person charged with a criminal offence stating or suggesting that he committed the alleged offence. Thus, if a confession is free and voluntary it becomes a relevant fact against the maker. In law once a confessional statement is shown to have been made freely and voluntarily, without any threat, inducement or promise, and is direct, positive and properly established, it is sufficient on its own without any other outside corroborative evidence to sufficiently prove of the guilt of the maker and to sustain a conviction. A confessional statement does not cease being a confessional statement merely because it was retracted by its maker at his trial. See Solola V. State (2005) All FWLR (Pt. 269) 1751. See also Bassey V. State (2012) 12 NWLR (Pt. 1314) 209.
However, where at the trial of its maker, a confessional statement is retracted, it would be necessary for the Court to satisfy itself of the truthfulness and veracity of the confession by examining the contents in the light of the totality of the evidence before it. Thus, where an incriminating extra judicial statement or confession of an Accused person is inconsistent with his testimony in Court, the contents of the extra judicial statement should be subjected to the following considerations, namely::
i. Is there anything outside the confession to show that it is true?
ii. Is it corroborated?
iii. Are the relevant statements made in it of facts, true as far as they can be tested?
iv. Was the accused person one who had the opportunity of committing the offence?
v. Is his confession possible?
vi. Is his confession consistent with other facts which have been ascertained and have been proved? See Shofolahan V. State (2013) 17 NWLR (Pt. 1383) 281 @ p. 287. PER GEORGEWILL, J.C.A.

WHEN IS AN IDENTIFICATION PARADE NECESSARY IN A CRIMINAL OFFENCE

In law, proper identification of an Accused person who is alleged to be a party criminis in the commission of a criminal offence is a question of fact to be considered by the trial Court on the evidence adduced by the Prosecution. However, where there is no doubt as to the identity of an Accused person, either by reason of eye witness account fixing him to the scene of crime or prior knowledge of the Accused person by the victim of the crime, it would appear that an identification parade would be exercise in futility. This is so because there is no rule of law or practice of general application which requires the holding of identification parade on every occasion before liability for commission of a criminal offence can be ascertained when the identity of an Accused person is not in doubt or not in issue. Thus, each case and every criminal case must be considered based on the evidence adduced by the Prosecution. In the instant case, the Prosecution had, by way of what I may consider as ‘ex – abudandicautela’ – for the avoidance of doubt, carried out a flawless identification parade in both Warri and Asaba to fulfill all righteousness despite the obvious lack of need for one. See Alabi V. State (1993) 13 LRCN 977. PER GEORGEWILL, J.C.A.

WHEN SHOULD THE COURT CONVICT FOR A LESSER OFFENCE

In law, for a Court to convict for a lesser offence, it must be demonstrated by the Court that while the evidence led had fallen short of constituting the more serious offence charged, but it had crossed the threshold or rubicon to constitute the lesser offence for which conviction is entered. It is never a principle to be resorted to by the Court after finding as fact that the more serious offence charged has been proved but the subject of the offence was meager or insignificant in value to warrant a conviction for the more serious offence charged and proved by the Prosecution against an Accused person. See Section 179(2) Criminal Procedure Law C21, Laws of Delta State 2006. See also Onogwu V. The State (1995) 6 NWLR (Pt. 401) 276 @ p. 197; Odeh V. FRN (2010) Vol. 8 LRCNCC 175; Oladipupo V. State (1993) 6 NWLR (Pt. 298)131 @ p. 147; Udoh V. State (1993) 5 NWLR (Pt. 295) 556 @ p. 560. PER GEORGEWILL, J.C.A.

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Judgment of the High Court of Delta State, Coram: M. Umukoro, CJ.,in Charge No. A/10C/2012: The State V. Daniel Birifou & Ors., delivered on 10/6/2015, wherein the Appellant was convicted for the offences of Conspiracy to commit Kidnapping, Kidnapping, Stealing, and Illegal Possession of firearms and was sentenced to an aggregate of 25 years imprisonment, while discharging and acquitting him for the offence of demanding with menace.

The Appellant was peeved with the said judgment and had appealed against it to this Court vide his Notice of Appeal filed on 26/8/2015 on one ground of appeal at pages 129 – 130 of the Record of Appeal. The Record of Appeal was duly transmitted to this Court on 24/11/2015. Subsequently, the Appellant filed with the leave of this Court his Amended Notice of Appeal on 7/9/2015 on additional six grounds of appeal at pages 149- 152 of the Record of Appeal. The Appellant’s brief was filed on 21/6/2018 but deemed as properly filed on 18/3/2019. The Respondent’s brief was filed on

12/3/2019 but deemed as properly filed on 18/3/2019.

At the hearing of this appeal on 28/1/2020, Mrs. Itohan Richards, learned counsel for the Appellant adopted the Appellant’s brief as their arguments and urged the Court allow the appeal and set aside the judgment of the Court below and to discharge and acquit the Appellant. On their part, P. A. Okoh Esq., learned Assistant Director, Ministry of Justice, Delta State, for the Respondent adopted the Respondent’s brief as their arguments and urged the Court to dismiss the appeal and affirm the conviction and sentence on the Appellant by the Court below.

By Information filed on 26/6/2012, the Appellant was charged as the 1st Accused person along with three others on a five Count charges alleging the following offences against him, namely;
1. Count 1, Conspiracy to commit a felony to wit: kidnapping punishable under Section 516 of the Criminal Code Cap C21 Vol. I, Laws of Delta State of Nigeria, 2006.
2. Count 2, Kidnapping punishable under Section 364 of the Criminal Code Cap C21 Vol. I, Laws of Delta State of Nigeria, 2006.
3. Count 3, Demanding with menace punishable

under Section 406 of the Criminal Code Cap C21 Vol. 1, Laws of Delta State of Nigeria, 2006.
4. Count 4, Armed Robbery punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap R 11 Vol. 14, Laws of the Federation of Nigeria, 2004.
5. Count 5, Illegal Possession of Firearms punishable under Section 3 (1) of the Robbery and Firearms (Special Provisions) Act Cap R. 11 Volume 14, Laws of the Federation of Nigeria 2004.
See pages 1-2 of the Record of Appeal.

At the Court below, on 6/5/2014 the Appellant pleaded not guilty to all the five Counts alleged against him and the matter proceeded to trial. At the trial, the Respondent as Prosecution called three witnesses, PW1, was one Endurance Itama, the victim of the kidnapping; PW2, was one Captain Benjamin Itama, the husband of PW1; and PW3, was one Osarieme Jefferson Obaywana of the Department of State Security Services, in proof of the charges against the Appellant and tendered 12 Exhibits, which were admitted and marked as Exhibits A, B, C & D (Appellant’s statement and attestation form), E, F, G, H, J, K1, K2, and K3 and closed its case. These

Exhibits were the extra – judicial statements and attestation forms of the four Accused persons including a cut to size gun and three live cartridges. In his defense, the Appellant testified for himself. At the close of the trial, the parties through their counsel addressed the Court below and on 10/6/2015, the Court below delivered its judgment convicting the Appellant for the offences of Conspiracy to commit Kidnapping, Kidnapping, Stealing, and Illegal Possession of Firearms and sentencing him to an aggregate of 25 years imprisonment, hence this appeal. See pages 102 – 128; 161 – 195 of the Record of Appeal.

BRIEF STATEMENT OF FACTS
As can be garnered from the evidence led by the parties before the Court below, the case of the Respondent as the Prosecution was that one Mrs. Endurance Itama, the PW1, was on 20/10/2011 kidnapped at about 8.30pm by unknown boys and taken to an unknown location and kept in a room owned by the 2nd Accused, a friend to the Appellant being harbored there and was later rescued on 21/10/2011 by men of the DSS. One Mr. Benjamin Itama, PW2 and husband of PW1, was called on phone to pay ransom to the kidnappers but

fortunately the victim was timely rescued by the men of the DSS and was met at Merogun by the PW2 tied down whilst being guarded by the Appellant and 4th Accused persons. The Appellant, who was the 1st Accused person, was arrested at the scene of crime at the Merogun Community by the men of the DSS, including one Mr. Osarieme Jefferson Obayuwama, the PW3. The Appellant made confessional statements in the course of the investigations which led to the arrest of the 2nd, 3rd and 4th Accused persons. An identification parade was conducted and the PW1 identified all the 4 Accused persons, including the Appellants her former staff as the persons who were involved in her kidnap. See pages 31 – 36; 37 – 40 and 41 – 47 of the Record of Appeal.

On his part, the case of the Appellant as the 1st Accused person before the Court below was that he came to know the 2nd- 4th Accused in Asaba and that he works as a Porter at Ijaw Waterside near the market in Warri and that he was arrested on 23/10/2011 at NPA Ijaw Quarter in Warri and taken to DSS Office Warri and then to Asaba on 24/10/11. He denied being arrested at Merogun community nor was he arrested while armed with a

gun and live Cartridges but admitted that Exhibit A was in his own handwriting while insisting that he copied from another sheet. He maintained that there was no identification parade on 31/10/11 and denied kidnapping the PW1 on 20/10/2011 or dragging her in a take-away vehicle. He denied knowing the 2nd- 4th Accused before 20/10/2011 and never agreed with the 2nd- 4th Accused to kidnap the PW1. See pages 47 – 51 of the Record of Appeal.

ISSUES FOR DETERMINATION
In the Appellant’s brief, three issues were distilled as arising for determination from the seven grounds of appeal, namely:
1. Whether the Court below rightly held that the Prosecution proved the offences of Conspiracy to commit Kidnap and Kidnapping against the Appellant beyond reasonable doubt? (Distilled from Grounds I, 2, 4, and 7)
2. Whether the Court below rightly held that the Appellant was guilty of the offences of stealing and illegal possession of firearms? (Distilled from Grounds 3 and 5)
3. Whether the sentencing of the Appellant by the Court below was fair, equitable and not excessive? (Distilled from Ground 6)

In the Respondent’s brief, a sole

issue was distilled as arising for determination in this appeal, namely:
“Whether having regard to the evidence led by the parties, the Court below was right when it held that the Prosecution proved the offence of Conspiracy to commit Kidnapping, Kidnapping, Stealing and Illegal Possession of Firearms against the Appellant beyond reasonable doubt?”

I have looked at the charges and the particulars thereof as laid against the Appellant by the Respondent before the Court below. I have also reviewed the evidence, oral, documentary and other items tendered as Exhibits before the Court below. I have also considered the submissions of counsel for the parties in their respective briefs in the light of the findings in the judgment of the Court below, and it does appear to me that the proper issues for determination in this appeal are the three issues as distilled in the Appellant’s brief, which best represent the real issues arising for determination in this appeal. It is my view that a consideration of these three issues would invariably involve the due consideration of the sole issue as distilled in the Respondent’s brief. However,

it does appear that the Respondent’s sole issue is covered entirely by the Appellant’s issues one and two, and I shall therefore, consider Appellant’s issues one and two together with the Respondent’s sole issue and resolve all these issues in one fell swoop. Thereafter, I shall proceed to consider and resolve Appellant’s issue three solely on its own.

ISSUES ONE AND TWO (TAKEN TOGETHER)
Whether the Court below rightly held that the Prosecution proved the offences of Conspiracy to commit Kidnap and Kidnapping against the Appellant beyond reasonable doubt AND Whether the Court below rightly held that the Appellant was guilty of the offence of stealing and illegal possession of firearms?

APPELLANT’S COUNSEL SUBMISSIONS
On issue one, learned counsel for the Appellant had submitted that the Court below was wrong when it held that the Respondent proved the offences of conspiracy to commit kidnapping and kidnapping against the appellant beyond reasonable doubt and contended that on the offence of conspiracy the Respondent failed to prove the existence or inference of an agreement between the Appellant and

the other Accused persons to do an unlawful act or to use lawful means to do an illegal purpose as required by law and urged the Court to hold that the Respondent neither established the existence of an agreement between the Appellant and the other accused persons, nor led evidence, including Exhibit A, to establish the criminal acts of the Appellant done in pursuance of any common criminal purpose and to allow the appeal, set aside the perverse findings of the Court below and discharge and acquit the Appellant on Count 1 alleging conspiracy to commit kidnapping. Counsel relied on Odunayo v State (2014) 12 NWLR (Pt. 1420) 1 @ p. 32; Oduneye V. State (2001) 2 NWLR (Pt. 697) 311 @ pp. 324 – 325; Patrick Njovens & Ors. V. The State (1973) 5 S.C. 17; Daboh & Anor V. The State (1977) 5 SC 197; Erim V. The State (1994) 5 NWLR (Pt. 346) 522.

It was also submitted that the Respondent failed to prove the offence of Kidnapping against the Appellant beyond reasonable doubt having failed to lead any credible evidence establishing the essential ingredients of the offence of Kidnapping and contended that the Respondent led no evidence to prove the offence of

kidnapping against the Appellant since mere presence at the scene of crime does not amount to proof of guilt as there was nothing oral or documentary in evidence to show that the Appellant imprisoned or unlawfully imprisoned the PW1 or anyone else and urged the Court to hold that the Respondent failed to discharge the burden of proof cast on it by credible evidence which may be direct or circumstantial and of such quality or cogency that a Court could safely rely on it in coming to its decision and to allow the appeal, set aside the conviction of the Appellant on Count 2 for Kidnapping and to discharge and acquit him. Counsel referred to Section 364(2) of the Criminal Code Law CAP. C21, Laws of Delta State 2006 and relied on Olamolu V. State (2013) 2 NWLR (Pt. 1339) 580 @ p. 585.

It was submitted that in law an Accused person is not expected to prove his innocence and thus whenever doubts arise from the Prosecution’s case, the doubts must be resolved in favor of the Accused person and contended that there was nothing in Exhibit A, solely relied upon by the Court below in convicting the Appellant, showing that the Appellant conspired with the other Accused

persons to kidnap the PW1 and urged the Court to hold that at best the evidence of the mere presence alone of the Appellant alleged to be guarding the PW1 does not amount to proof of his participation in the alleged offences and to allow the appeal and set aside the judgment of the Court below. Counsel relied on Vivian Odogwu V. The State (2009) LPELR – 8506; Ndidi V. State (2007) 13NWLR Pt.1052 633.

It was further submitted that the Court below wrongly relied on Exhibit A in that in law where an Accused persons states or suggests that his confessional statement was not made voluntarily, the trial Court is saddled with the duty of conducting a trial within trial to ascertain the voluntariness of the confessional statement and contended that the Appellant gave evidence that Exhibit C though in his handwriting was merely copied from another sheet of paper on the order of the PW3 hence robbing the confessional statement of any voluntariness and urged the Court to hold that in the absence of any challenge to this evidence, the Court below was in grave error when it failed to take all these into consideration before convicting the Appellant solely on his

alleged but uncorroborated confessional statement and to allow the appeal and set aside the conviction of the Appellant. Counsel relied on Shofolahan V State (2013) 17 NWLR (Pt. 1383) 281 @ p. 287.

It was also further submitted that there were material contradictions in the evidence of the Respondent’s witnesses between their evidence in Court and their statements in the proof of evidence which were at variance and contended that such material contradictions rendered their evidence unreliable and created doubts which ought to be resolved in favor of the Appellant and urged the Court to hold that in the face of the material contradictions in the evidence of the Respondent’s witnesses, the offences alleged against the Appellants were not proved and to allow the appeal and set aside the conviction and sentence of the Appellant by the Court below. Counsel relied on Iortim V. State (1997) 2 NWLR (Pt. 490) 711 @ pp. 728 – 729; Bozin V. State (1985) 2 NWLR (Pt. 8) 465 @ p. 471.

It was also submitted that with the cross – examination evidence of PW3 that the trauma of kidnapping would have made the PW1 not to recall the features of the

kidnappers in that she could not have identified anyone that kidnapped or held her custody, the alleged identification parade carried out by the DSS did not associate the Appellant with any role in the kidnapping of the PW1 and urged the Court to hold that there was no way the PW1 would have been able to identify the Appellant at the identification because she had not met him before the parade and to allow the appeal and set aside the perverse judgment of the Court below. Counsel relied on Ikaria V. State (2014) 1 NWLR (Pt. 1389) 639 @ p. 653.

On issue two, it was submitted that the Court below erred when it having held that the essential ingredients of the offence of armed robbery were inherently lacking in the prosecution’s case but had still proceeded to find the Appellant guilty of the lesser offence of stealing and contended that in law in order to prove a charge of stealing against an Accused person, the Prosecution must state in the charge the owner of the thing capable of being stolen and also lead evidence to prove it since failure to do so will be fatal to its case and urged the Court to hold that the only evidence adduced by the

Respondent in relation to the offence of stealing was the statement of the PW1 that her LG Phone was recovered from the 1st Accused person, as distinct from the Appellant, and to allow the appeal and set aside the conviction of the Appellant for stealing. Counsel referred to Section 283 (1) of the Criminal Code and relied on Olamolu V. State (2013) 2 NWLR (Pt. 1339) 580 @ p. 600.

It was also further submitted that though a cut to size gun and three cartridges were tendered and admitted in evidence as Exhibits J, K1, K2, K3 and were alleged to have been found with the Appellant, an allegation that was stoutly denied by the Appellant in his evidence but there was no evidence linking the Appellant to the ownership of these Exhibits and contended that on the evidence the rightful owners or possessors of these Exhibits were Felix and his gang members that gave the gun to the Appellant who had no option in such a dilemma with armed criminals out of fear of danger to his life and urged the Court to hold that the Court below was wrong when it convicted the Appellant of this offence and to allow the appeal and set aside the judgment of the Court below convicting

the Appellant on Count 5 for illegal possession of firearms. Counsel relied on Oladotun V. State (2011) 10 NWLR (Pt.1256) 542.

RESPONDENT’S COUNSEL SUBMISSIONS
On his sole issue, encompassing issues one and two, learned counsel for the Respondent had submitted that having regard to the evidence led by the parties, the Court below was right when it held that the Respondent proved the case of conspiracy to commit kidnapping, kidnapping and stealing against the Appellant beyond reasonable doubt and contended that in law in order to succeed in any criminal case the prosecution is expected to prove its case against the accused person beyond reasonable doubt by either direct evidence of witnesses, or circumstantial evidence, or admissions and confessions of the Accused person and urged the Court to hold that the Respondent clearly proved the guilt of the Appellant by credible evidence of the PW1, PW2, PW3 and the confessional statement of the Appellant in Exhibit C and to dismiss the appeal for lacking merit and affirm the judgment of the Court below. Counsel referred to Section 135 of the Evidence Act, 2011 and relied on Oguonzee V. State (1998) 58

LRCN 3512 @ p. 3551; Edamine V. State (1996) 3 NWLR (Pt. 58) 530 @ p. 531; Itu V. State (2016) 5 NWLR (Pt. 1506) 443.

It was also submitted that in law conspiracy is an agreement between two or more persons to do an unlawful act or to do a lawful act by an unlawful means and contended that once there is credible evidence establishing the essential ingredients of the offence of conspiracy the burden of proof beyond reasonable doubt is attained and urged the Court to hold that the offence of conspiracy was proved against the Appellant from the confessional statements of the Appellant coupled with Exhibits A, C, E, G and H which shows the inference of conspiracy amongst the four Accused person and to dismiss the appeal for lacking in merit and affirm the judgment of the Court below convicting the Appellant on Count 1 for conspiracy to commit Kidnapping. Counsel relied on Tanko V. State (2009) All FWLR (Pt. 456) 2013 @ p. 2014.

It was further submitted that by the credible evidence led by the Respondent through the PW1, PW2, PW3 and Exhibit C the offence of Kidnapping was clearly proved beyond reasonable doubt as required by law against the Appellant

in that there was evidence that the victim, PW1, was forcefully seized and taken away by the Accused persons against her consent and was unlawfully detained or imprisoned at the Appellant’s room and contended that in law the offence of kidnapping lies in the taking or carrying away of one person by another with force, fraud or deception without the consent of the person so taken or carried away and without lawful excuse and is complete when the victim is carried away against his or her wish and urged the Court to hold that with the free and voluntary confession of the Appellant in Exhibit C, admitted without any objection, the Court below was right when it held that the Respondent proved the case of kidnapping of the PW1 against the Appellant beyond reasonable doubt since in law a conviction can be sustained on the free and voluntary confessional statement notwithstanding that it was retracted and to dismiss the appeal and affirm the judgment of the Court below convicting the Appellant on Count 2 for Kidnapping. Counsel referred to Section 364(2) of the Criminal Code Law Cap C21 Volume 1, Laws of Delta State 2006 and relied on Okashetu V. State (2016)

LPELR – 40611 SC; R V. Cort (2004) 4 All ER 137; Solola V. State (2005) All FWLR (Pt. 269) 1751; Bassey V. State (2012) 12 NWLR (Pt. 1314) 209.

It was also further submitted that in law the proper identification of an Accused person who was a party to the commission of a criminal offence is a question of fact to be considered by the trial Court on the evidence adduced by the Prosecution but contended that an identification parade is an exercise in futility or an attempt to jeopardize the course of justice when there is no doubt about the identity or identities of the Accused person since there is no rule of law or practice of general application which requires the holding of identification parade on every occasion particularly when the identity is not in doubt as every case must be considered based on the evidence adduced by the Prosecution and urged the Court to hold that the identity of the Appellant was not in doubt as the PWI the victim had prior knowledge of the 1st Accused person whose confession led to the arrest of the Appellant and to dismiss the appeal for lacking in merit and to affirm the judgment of the Court below. Counsel relied on Alabi V.State (1993) 13 LRCN 977.

It was submitted that the Court below was right when it having found that the offence of armed robbery had been established by the Respondent against the Appellant but had proceeded to convict him for the lesser offence of stealing and contended that by the credible evidence of the PW1 to the effect that she was dispossessed of her valuable items, LG Phones, driving license and other unidentifiable valuables, the offence of armed robbery or the lesser offence of stealing was clearly proved against the Appellant beyond reasonable doubt as require by law and urged the Court to hold that the Court below was correct when it convicted the Appellant for the lesser offence of stealing based on the evidence on record and to dismiss the appeal for lacking in merit and affirm the judgment of the Court below convicting the Appellant for the lesser offence of stealing. Counsel referred to Section 179(2) Criminal Procedure Law C21, Laws of Delta State 2006 and relied on Onogwu V. The State (1995) 6 NWLR (Pt. 401) 276 @ p. 197; Odeh V. FRN (2010) Vol. 8 LRCNCC 175 @ p. 180; Oladipupo V. State (1993) 6 NWLR (Pt. 298) 131@ p. 147; Udoh V. State

(1993) 5 NWLR (Pt. 295) 556 @ p. 560.

RESOLUTION OF ISSUES ONE AND TWO
My lords, issue one and two deal directly with the requirement of the law that an allegation of the commission of a crime must be proved beyond reasonable doubt by the Prosecution in order to secure the conviction of an Accused person so charged. See Section 135 of the Evidence Act, 2011 (as amended). See also Godwin Igabele V. The State (2006) 6 NWLR (Pt. 975) 103. See also Lori V. The State (1980) 8 – 11 SC 81; Emeka V. The State (2001) 14 NWLR (Pt. 734) 666; Peter Igho V. The State (1978) 3 SC 87; Archibong V. The State (2006) 14 NWLR (Pt. 1000) 349.
To succeed therefore, the Prosecution must lead credible evidence establishing the essential ingredients of the offence charged. In doing so the Prosecution need not call a horde of witnesses since in law the credible and cogent evidence of a sole witness will be sufficient to secure a conviction for an offence no matter the heinous nature of the offences charged in so far as corroboration is not required by law. Thus, once the essential ingredients of the offence charged is sufficiently established by the evidence put

forward by the Prosecution, it is immaterial that a particular witness was not called or that a particular document was not tendered in evidence. See Alhaji Muadzu Ali V. The State (2015) 5 SCM 26. See also Odili V. The State (1977) 4 SC 1; Oguonzee V. The State (1998) 5 NWLR (pt. 551) 521; Alonne V. IGP. (1959) 4 FSC 203; Ibodo V. The State (1975) 9 – 11 SC (Reprint) 80; Abeke Onafowokan V. The State (1987) 1 NWLR (Pt. 61) 538. See also Akpabio V. The State (1994) 7 NWLR (Pt. 359) 635; Idiok V. The State (2008) 13 NWLR (Pt. 1104) 225 @ Pp. 250 – 251. See also Olayinka V. The State (2007) 4 SCNJ 53 @ p. 73; The State V. Ajie (2000) 3 NSCQR 53 @ p. 66; Adebayo Rasaki V. The State (2014) 10 NCC 1.

(1978) 3 SC 87; Archibong V. The State (2006) 14 NWLR (Pt. 1000) 349.

In considering the conclusions and findings reached by the Court below, I am aware that it is the prerogative of a trial Court which sees and hears the witnesses to choose which to believe and to ascribe probative value to such evidence, either oral or documentary. Thus, a trial Court being the master of the facts, must base his inferences, evaluation or assessment and findings on the available evidence adduced before it and therefore, if its findings must stand it must not be premised on extraneous facts or matters or conjectures outside the evidence given at the trial. See Emeka V. The State (2014) LPELR 3472011 (SC); Afolalu V. The State (2010) 16 NWLR (Pt. 1220) 584; Ejeka V. The State (2003) 7 NWLR (Pt. 819) 408; Isibor V. The State (2002) 4 NWLR (Pt. 758) 241; Iko V. The State (2001) 14 NWLR (Pt. 732) 221; Buba V. The State (1994) 7 NWLR (Pt. 355) 195; The State V. Musa Danjuma (1997) 3216 (SC) 1; Arehia V. The State (1982) NSCC 85.

The Appellant was charged with the offences of Conspiracy to commit Kidnapping, Kidnapping, Demanding with menace, Armed Robbery and Illegal

Possession of Firearms. He was dicharged and acquitted of demanding with menance and Armed Robbery but convicted of Conspiracy to Kidnap, Kidnapping, Stealing and Illegal Possession of Firearms.

Mulcahy V. R (1868) 3 H.L. @ p. 317; Patrick Njovens & Ors. V. The State (1973) 5 S.C. 17; Daboh & Anor V. The State (1977) 5 SC.197;
The law is settled that the proof of conspiracy is in many cases a matter of inference from certain criminal acts of the parties concerned done in pursuance of a criminal purpose in common between them to which are focused towards the realization of their common or mutual criminal purpose. Now, in a count alleging Conspiracy to commit Kidnapping, the Respondent being the Prosecution carried on it the burden, which does not shift, to prove the guilt of the Appellant beyond reasonable doubt by leading credible evidence to the satisfaction of the Court below establishing all the essential ingredients of the offence of Conspiracy, to wit: a.
i. An agreement between two or more persons to do or cause to be done, some illegal act or some act which is not illegal but by illegal means.
ii. Where the agreement is other than an agreement to commit an offence that some act besides the agreement was done by one or more parties in furtherance of the agreement.
iii. Specifically that each of the accused

individually participated in the conspiracy. See Tanko V. State (2009) All FWLR (Pt. 456) 2013 @ p. 2014.
Thus, the offence of conspiracy is complete when it is shown that there was a formation of a scheme or agreement between the parties, but before the doing of the act for which the conspiracy is formed. The proof of conspiracy is generally a matter or inference deduced from certain criminal acts of accused done in pursuance of an apparent criminal purpose in common between them.

Now, the very notorious offence of kidnapping is provided for in Delta State by Section 364(2) of the Criminal Code Law CAP. C21, Laws of Delta State 2006 occurs where any person unlawfully imprisons any person within Nigeria in such a manner as to prevent him from applying to a Court for his release or from discovering to any other person the place where he is imprisoned, or in such a manner as to prevent any person entitled to have access to him from discovering the place where he is imprisoned. Thus, in a count alleging Kidnapping, the Respondent being the Prosecution must lead credible and cogent evidence establishing all the essential ingredients of the offence of

Kidnapping, to wit
i. That the victim was forcefully seized and taken away by the accused.
ii. That the victim was taken away against his or her consent.
iii. That the victim was unlawfully detained or imprisoned. See Okashetu V. State (2016) LPELR – 40611 SC, See also the English case of R V Cort (2004) 4 All ER 137.
Thus, flowing from the essential elements of the offence of kidnapping as above is the fact that the gist of the offence of kidnapping lies in the taking or carrying away of one person by another with force, fraud or deception without the consent of the person so taken or carried away and without lawful excuse. The offence of kidnapping is therefore, complete when the victim is carried away against his or her wish.

However, though charged with the deadly offence of Armed Robbery but eventually convicted for the lesser offence of stealing, in a count alleging Armed Robbery, the Respondent being the Prosecution must lead credible and cogent evidence establishing all the essential ingredients of the offence of Armed Robbery, to wit:
a. That there was a robbery or series of robbery;
b. That the robbery was an

armed robbery, that is the robbers were armed during the robbery, and:
c. That the Accused person was the person or one of the persons who took part in the armed robbery. See Agboola V. State (2013) 11 NWLR (Pt. 1366) 619 @ p. 641. See also Bozin V. The State (Supra); Ani V. The State (Supra) @ p. 142; Afolalu V. The State (2010) 43 NSCQR 227; Ogudo V. The State (2011) 45 NSCQR (Pt. 1) 278; The State V. Salawu (2011) LPELR – 8252 (SC).

On the offence of stealing, though not charged with but for which the Appellant was convicted as a lesser offence to the offence of Armed Robbery, the essential ingredients of the offence of stealing are, namely:
i. The ownership of the thing stolen
ii. That the thing stolen is capable of being stolen;
iii. That the thing was fraudulently taken or converted. See Olamolu V. State (2013) 2 NWLR (Pt. 1339) 580 @ p. 600 on the essential.

In a count alleging Illegal Possession of Fire Arm, the Respondent being the Prosecution must lead credible cogent evidence establishing all the esssential ingredients of the offence of unlawful possession of Fire Arm, to wit:

That the Accused person was found in possession of firearm
ii. That the firearm is within the meaning of the Robbery and Firearms (Special provisions) Act, and;
iii. That the Accused person has no license to possess the
firearm. See Oladotun V. State (2011) 10 NWLR (Pt.1256) 542.

Having averted my mind to the applicable principles of law and the essential ingredients of all the offences for which the Appellant was found guilty and thereby convicted of committing, what then are the pieces of evidence led by the Respondent in proof of the alleged offences against the Appellant and the evidence led in defense by the Appellant on which the Court below reached its conclusions that the Appellant was guilty of Conspiracy to commit Kidnapping, Kidnapping and Stealing, a lesser offence to the offence of Armed Robbery with which the Appellant was charged and Illegal Possession of Firearms?

In proof of its case, the Respondent called three witnesses and tendered 12 Exhibits in evidence. PW1 was one Mrs. Endurance Itama, She stated in respect of the Appellant that on 20/10/2011 she was kidnapped at about 8:30 pm by unknown boys and

taken to an unknown location and that the Appellant was one of the occupants of the room where she was kept under his guard. She gave vivid description of the horror she went through and recounted her ordeal in the hands of her kidnappers and how she was kept blindfolded in a room were the Appellant was the person who kept guard over her in the room where she was kept. However, during cross – examination, she stated that it was through the DSS she came to know that the 2nd Accused person owned the room in which she was kept under the guard of the Appellant and she was later rescued on 21/10/2011 by men of the DSS. See pages 31 – 36 of the Record of Appeal.

PW2 was one Captain Benjamin Itama, the husband of PW 1. He stated that he was called on phone to pay ransom of N7, 000, 000. 00 to which he offered N300, 000. 00 to the persons who later turned out to be the persons who had kidnapped his wife, the PW1, on 20/10/2011 but after several investigative work by the DSS his wife was rescued and he was called to come to Merogun, where he met his wife tied down whilst being guarded by the Appellant and 4th Accused, charged along with the Appellant. On the

arrest of the Appellant he confessed to his participation in the kidnapping of the PW1 and also mentioned the names of those who participated with him in the crime, including the three other Accused person. He was cross examined but not shaken in any material particular. See pages 37 – 40 of the Record of Appeal.

PW3 was one Mr. Osarieme Jefferson Obayuwama, a staff of the Department of State Security Service, Asaba. He stated that the Appellant and the 2nd Accused person were arrested at Merogun Community at the scene of crime where the PW1 was kept in custody in the room of the 2nd Accused person and guarded by the Appellant and that further investigation led to the arrest of the 3rd and 4th Accused persons. Subsequently, an identification parade was conducted wherein the PW1 identified all the four Accused persons, including the Appellant, her former staff, as the persons who kidnapped her on 20/10/2011 as perpetrators of her kidnap. He tendered all the confessional statements of the four Accused persons, including the Appellant wherein they each explained their role in the commission of the crime. Under Cross Examination, he maintained that it was

the Appellant who guarded the PW1 in the room where she was kept and where he was being harbored by the 2nd Accused person and used to keep custody of the PW1 but that the room was rented by the mother of the 2nd Accused person, who has been on the run. See pages 41 – 47 of the Record of Appeal.

In his defense, the Appellant as the 1st Accused person before the Court below testified on his own behalf and stated that he came to know the 2nd – 4th Accused in Asaba and that he works as a Porter at Ijaw Waterside near the market in Warri and that he was arrested on 23/10/2011 at NPA Ijaw Quarter in Warri and taken to DSS Office Warri and then to Asaba on 24/10/11. He denied being arrested at Merogun community nor was he arrested while armed with a gun and live Cartridges but admitted that Exhibit A was in his own handwriting while insisting that he copied from another sheet. He maintained that there was no identification parade on 31/10/11 and denied kidnapping the PW1 on 20/10/2011 or dragging her in a take -away vehicle. He denied knowing the 2nd – 4th Accused before 20/10/2011 and never agreed with the 2nd – 4th Accused to kidnap the PW1. See pages 47 – 51

of the Record of Appeal.

It was on the strength of the above pieces of evidence, both oral and documentary, that the Court below in its judgment delivered on 10/6/2016, while convicting and sentencing the Appellant for the offences of Conspiracy to commit Kidnapping, Kidnapping, Stealing and Illegal Possession of Firearms but discharging him of the offence of demanding with menace, had held inter alia thus:
“….The cut to size gun recovered from the 1st Accused was tendered as Exhibit J. The three live cartridges were tendered as Exhibits K1 – K3. The PW3 further stated that an identification parade was conducted by bringing 8 other persons to mingle with the 4 accused and the 4 accused were identified by the PW1 who said 3rd and 4th Accused were her former employees while the 4th Accused was still working with her at the material time….The 1st 2nd, 3rd and 4th Accused volunteered statements indicating their involvement in the kidnap.…The 1st Accused was eminently and eloquently identified by the PW1 at the point of the rescue on 21/10/11. At that time he was armed with the gun and three live cartridges. The gun and cartridges were

recovered from him and tendered as Exhibits in this case…. It was the confession of the 1st Accused that led to the arrest of the 2nd Accused…From the statements of the 1st, 2nd, 3rd and 4th Accused persons, it is as clear as day light that the four (Accused persons) all of them individually and collectively agreed, arranged ….the actions and inaction to put away the PW1 from circulation….I hold and infer that the four accused and others on the run from the law conspired to commit felony to wit kidnapping….It will be most unreasonable to send a fellow Nigerian to the gallows for LG phone and driving license when others without just cause cart away millions and millions of Naira from our common patrimony…” See pages 102 – 128 of the Record of Appeal.

I have taken time to reproduce and review the totality of the evidence as in the printed record. The onerous duty to prove the guilt of the Appellant beyond reasonable doubt is that fixed by law on the Respondent, and the Appellant carries no duty to prove his innocent as he is by law constitutionally presumed to be innocent until the contrary is proved by the

Respondent. In law, the essential ingredients of the several offences with which the Appellant was charged seems fairly settled and I had earlier in this judgment set them out and happily the parties are ad idem as to these essential ingredients and the onerous duty on the Respondent to prove by credible evidence, whether direct or circumstantial or admissible confessional statement the guilt of the Appellant beyond reasonable doubt as required by law. Thus, the resolution of issues one and two in this appeal turns more on the findings of facts as made by the Court below from the evidence led before it by the parties.

Upon his arrest by the DSS, the Appellant volunteered a statement stating inter alia thus:
“…Currently living in Merogu Community in Warri South LGA with my friend Sunday Anadue. Sometime three weeks ago I and my friend Sunday Anadile while we were having fun at Obo drinking bar Merogun when I saw one Felix who was a school friend at Uwaugua College off Swamp road Warri. I approached him and we started chatting and I asked him where he works but Felix did not disclose to me. Later Felix called me on my phone and asked me

if I have the courage to do what he is doing. He later told me that he is into kidnapping and if have mind to be part of his gang member. Felix later disclosed about bringing a victim to my house keep custody and I will get my percentage share when ransom is paid by the victim’s relative. Which I later agreed to, after Felix promised me of my share of the money when ransom is paid by the family… On 20/10/2011 around 9 o’clock I received a call from Felix on GSM No. 08154824181 asking me of my where about and responded I was close to the house and I was with my friend, Sunday Felix later came with his gang members where they carried a lady that was blind folded and immediately the other boys left my house. I now opened my door and the woman was kept inside and Felix gave me a cut to size barrel and 3 live cartridges to keep custody of the victim, Felix left the room with a promise of carrying the victim to another place after some days. I admit that I participated in the kidnap and kept the woman in my room” See pages 19 – 20 of the Record of Appeal.

Having considered the evidence as led by the parties vis a vis the

essential elements of the offences with which the Appellant was charged, it is clear to me and I so find that the Court below was right, and indeed on firmer ground when it found that the Appellant in concert with the other Accused persons clearly conspired to commit the offence of Kidnapping of the PW1. I also find that the Court below was right when it found as fact that indeed the Appellant along with his confederates did carried out into action their plans to kidnap the PW1 and did in fact kidnapped the PW1 on 20/10/2011. Looking at the evidence of PW1, the victim herself, and PW3, it does appear to me that a proper evaluation of same and appropriate ascription of probative value to it as was done by the Court below, the guilt of the Appellant was proved beyond reasonable doubt with or even without his confessional statement made upon his arrest and caution by the DSS for the alleged offences of Conspiracy to commit Kidnapping and Kidnapping of PW1, as well as the lesser offence of stealing and illegal possession of firearms.

Now, what then is a confessional statement in law and why does the law permits the conviction of an Accused person even based

solely on his confessional statement where made free and voluntarily? A confession is an admission made at any time by a person charged with a criminal offence stating or suggesting that he committed the alleged offence. Thus, if a confession is free and voluntary it becomes a relevant fact against the maker. In law once a confessional statement is shown to have been made freely and voluntarily, without any threat, inducement or promise, and is direct, positive and properly established, it is sufficient on its own without any other outside corroborative evidence to sufficiently prove of the guilt of the maker and to sustain a conviction. A confessional statement does not cease being a confessional statement merely because it was retracted by its maker at his trial. See Solola V. State (2005) All FWLR (Pt. 269) 1751. See also Bassey V. State (2012) 12 NWLR (Pt. 1314) 209.
However, where at the trial of its maker, a confessional statement is retracted, it would be necessary for the Court to satisfy itself of the truthfulness and veracity of the confession by examining the contents in the light of the totality of the evidence before it. Thus, where an

incriminating extra judicial statement or confession of an Accused person is inconsistent with his testimony in Court, the contents of the extra judicial statement should be subjected to the following considerations, namely::
i. Is there anything outside the confession to show that it is true?
ii. Is it corroborated?
iii. Are the relevant statements made in it of facts, true as far as they can be tested?
iv. Was the accused person one who had the opportunity of committing the offence?
v. Is his confession possible?
vi. Is his confession consistent with other facts which have been ascertained and have been proved? See Shofolahan V. State (2013) 17 NWLR (Pt. 1383) 281 @ p. 287.

Looking at the judgment of the Court below, I find that these considerations were carefully weighed and borne in mind before reliance was placed on Exhibit A, coupled with the credible, consistent and uncontradicted evidence of the PW1, PW2 and PW3. Thus, the findings of guilt against the Appellant by the Court below for the offences of Conspiracy to commit Kidnapping, Kidnapping, Stealing and illegal possession of firearms were well supported by

the evidence led by the Respondent beyond reasonable doubt as required by law.

Now, when in a criminal trial is trial within trial imperative to be conducted by a trial Court and in the instant case was there any need for the conduct of a trial within trial by the Court below? At the trial before the Court below, when the cautionary statement of the Appellant was sought to be tendered through the PW3, neither the Appellant nor his counsel raised any objection or took any exception to its being tendered and admitted in evidence as the free, voluntary and attested to cautionary statement of the Appellant and it was thereby admitted in evidence, as it were with the consent of both parties. In the circumstances, in which there was no objection that the statement of the Appellant as 1st Accused person, admitted as Exhibit A, was not made freely and voluntarily by the Appellant, the issue of a trial within trial does not arise. I therefore, agree with the unassailable submission of the Respondent’s counsel that the issue of trial within trial raised by the Appellant’s counsel is merely an afterthought and can neither sail nor avail the Appellant. At

best, what happened at the trial was a retraction of the free and voluntary confessional statement of the Appellant by the Appellant in his evidence, and that alone cannot suffice to render the free and voluntary statement of the Appellant either inadmissible or a subject of a trial within trial. I have earlier discussed in some details in this judgment the position of the law on the treatment of a retracted confessional statement, which the Court below, in my finding, correctly applied in its judgment.

On identification parade, the proved evidence was that the Appellant was arrested at the scene of crime at the 2nd Accused person’s room where the PW1 was kept in custody under the Appellant’s guard. The PW1 knew the 3rd and 4th Accused persons well before the date of incident as her own former and current staff at her Mama P Bakery. In law, proper identification of an Accused person who is alleged to be a party criminis in the commission of a criminal offence is a question of fact to be considered by the trial Court on the evidence adduced by the Prosecution. However, where there is no doubt as to the identity of an Accused person, either by

reason of eye witness account fixing him to the scene of crime or prior knowledge of the Accused person by the victim of the crime, it would appear that an identification parade would be exercise in futility. This is so because there is no rule of law or practice of general application which requires the holding of identification parade on every occasion before liability for commission of a criminal offence can be ascertained when the identity of an Accused person is not in doubt or not in issue. Thus, each case and every criminal case must be considered based on the evidence adduced by the Prosecution. In the instant case, the Prosecution had, by way of what I may consider as ‘ex – abudandicautela’ – for the avoidance of doubt, carried out a flawless identification parade in both Warri and Asaba to fulfill all righteousness despite the obvious lack of need for one. See Alabi V. State (1993) 13 LRCN 977.

I have also calmly reviewed the evidence of PW1, PW2 and PW3 both in chief and under cross examination and in the proof of evidence and I cannot find any material contradictions in the their evidence as presented in support of the

charges against the Appellant as vehemently but erroneously contended by counsel for the Appellant. In law, where the evidence of Prosecution witnesses in Court are not in any material particulars contradictory with their statement in the proof of evidence or is not at variance with same, as in the instant case, the issue of contradictions weighty enough to taint their evidence and thereby rendering it unreliable does not arise and I so hold. See Iortim V. State (1997) 2 NWLR (Pt. 490) 711 @ pp. 728 – 729.

Indeed, the uncontradicted evidence of the PW1, the victim, was one of a graphic details of her being led away into captivity by two armed men forcefully dragged her into a waiting car in front of her bakery and dispossessing her of her of her valuable items and taken to an unknown destination. She later found herself inside a bush and in an attempt to escape, she was caught by her abductors and finally taken to an unknown room, occupied by the 2nd Accused person and the Appellant, where she was blindfolded and kept under the guard of the Appellant and asked to provide her husband’s mobile phone number which the abductors used to demand a ransom of

N7 million naira from her husband to secure her release; what a moving pathetic story of man’s inhumanity to man all in the graze for quick wealth!

On the evidence led by the Respondent, which includes the voluntary statements of the Appellant, which was not even objected to when it was sought to be tendered in evidence and was thus admitted by consent of both parties as Exhibit A, a critical evaluation of same, as was done rightly by the Court below, shows clearly and unequivocally all the essential elements of the offences of conspiracy and Kidnapping both in the planning and execution of the kidnap of the PW1, Mrs. Endurance Itama. Interestingly, though in law not bound by the confessional statements of his other co – Accused person, his own voluntary statement in Exhibit A was corroborated in every material particulars as it relates to the role played by him in the planning and execution of the Kidnap of the PW1 by the statements of the co – Accused persons, particularly the 2nd and 4th Accused persons in Exhibits C, E, G and H respectively. The name Felix, admittedly a friend to the Appellant was central and common as the person who sold the

idea of the kidnapping of the PW1, to which they all agreed to and carried out both its careful and discreet planning and eventual execution on 20/10/2011 and the victim kept in the 2nd Accused person’s room under the guard of the Appellant. In my view, where to keep a kidnap victim and who to guard the victim form escaping therefrom pending negotiation and payment of ransom are very vital to a successful execution of the crime of kidnapping. The Appellant thus played a very vital role in the commission of the offences as rightly found by the Court below.

In law, once the common purpose of the conspirators are clearly established by credible evidence, whether direct or circumstantial or confessional, as proved in the instant case by the Respondent against the Appellant and his confederates, it becomes really of no moment what each of the conspirator had done in the commission of the offence(s) charged in the execution of their common intention and purpose, which was fueled by greed and the desire to get rich quickly, as rightly opined by the Court below.

On the offence of illegal possession of firearms alleged against the Appellant, there was

evidence from the PW1 that the Appellant was armed while keeping guard over her in the 2nd Accused person’s room where she was kept. There was also evidence from the PW3 that a cut to size gun along with three live cartridges were found in possession of the Appellant and recovered from him. In Exhibit A, the Appellant confessed to these facts, though given to him as he claimed by one Felix. It was on the strength of these pieces of unchallenged evidence that the Court below had held inter alia thus:
“…The 5th offence alleged in the information talked of unlawful possession of firearms. This is only against the 1st Accused. Was the firearm in possession of the 1st Accused? The answer is yes. Is there a license for him to possess one? The answer is No….He admitted the possession. It is a strict liability offence….The no objection stance of the defense implied that the statements were voluntarily made and if it is so and it is so in my view, the contention of their not being relevant and/or made under, duress is of no moment. It is now left for the court to treat them in line with the evidence on record and accord them the

required probative value….” See pages 102 – 128 of the Record of Appeal.

My lords, I have earlier reproduced the essential elements of the offence of illegal possession of firearms and have asked myself whether or not it is a strict liability offence as opined by the Court below? A careful consideration of the essential elements of this offence reveals readily that it is not a strict liability offence as was wrongly reasoned or opined by the Court below. However, on the evidence led and the rights questions asked in the judgment and the findings made thereon by the Court below, the offence of illegal possession of firearms was proved by credible evidence led by the Respondent beyond reasonable doubt as required by law. It follows therefore, the erroneous reasoning and or opinion of the Court below that it was a strict liability offence, having not led to a wrong conclusion on the evidence and or having not caused a miscarriage of justice, is of no moment and I so hold. In law an appellate Court has no business interfering with the correct finding of a trial Court even where the reason adduced and relied upon by the trial Court to arrive at

the correct findings turns out to be wrong. SeeAlhaji Ndayako & Ors. V. Alhaji Dantoro & Ors. (2004) 13 NWLR (Pt. 889) 187 @ p. 198. See also Abaye V. Ofili (1986) 1 NWLR (Pt. 15) 134; Ukejianya V. Uchendu 18 WACA 46.

The Appellant wanted to blow, to use the common slang of nowadays, but cannot wait to take the path of hard work, patience and perseverance. He wanted to make it immediately and at all cost and to invest the would have been product by way of ransom payment into his business, so that he could so quickly be counted amongst those who have arrived! Unfortunately for the Appellant, rather than hit the jackpot he hit the cesspool and is now cooling his heels in prison, where he is so richly and well deserved to be!

My lords, I now come to a very disturbing aspect of this appeal, which is Appellant’s issue two, in which the Appellant rather than thanking his stars and upon his release from prison on completion of his prison term should be holding a thanksgiving for his conviction for the lesser offence of stealing rather than the offence of armed robbery with which he was charged, he is contending that his conviction for the

lesser offence of stealing was wrongful and should be upturned and he be acquitted and discharged.

It does appear to me that in the euphoria of his acquittal for the grave offence of armed robbery the Appellant suddenly forgot that he was indeed not charged for stealing at all but for armed robbery, an offence which upon conviction carries the mandatory sentence of death by hanging. However, the saving grace for the Appellant is the absence of any cross appeal against that ridiculous and incongruous finding by the Court below, which though very highly regrettable must be allowed to stand in the absence of any cross appeal against it, that because the item allegedly robbed while armed with gun being, in its view a mere, LG Phone for which a citizen of Nigeria cannot be sent to the gallows and thus the offence of armed robbery already proved was without any legal justification converted or reduced into the lesser offence of stealing by an ingenious application of the rule of criminal procedure law that permits the conviction for lesser offence but in very well defined circumstances, which in my view does not fit the bill in the instant case at all!

Once, the thing robbed while the robber is armed is a thing capable of being stolen, irrespective of its value or cost, and the Accused person is the perosn or one of the persons who took part in the robbery, the offence of armed robbery is proved and conviction for armed

robbery must be returned accordingly. There is no room for sheer sentiments in the Court when considering the commission of such grave and heinous offences in this Country. An Accused person, whether a citizen or not, and no matter who or what he is, who is found to have used violence by means of arms, such as a gun as in the instant case, in the course of robbing another citizen and putting that citizen through such horrific and horrendous trauma, must be ready to face the dire consequences of his evil acts and folly according to law! However, and highly regrettably so, there being no cross appeal against this aghast finding of the Court below, I shall let this issue rest!

However, in the light of the above that the Respondent indeed credibly proved the offence of armed robbery with which the Appellant was charged, I hold that the contention that the conviction of the Appellant for the lesser offence of stealing was wrong is clearly mischievous, frivolous and lacking both in bona fide and in any iota of merit. It is hereby discountenanced and wholly rejected for lacking in merit.

In the light of all the above findings, issues one and two for

determination are hereby resolved against the Appellant in favor of the Respondent.

ISSUE THREE
Whether the sentencing of the Court on the appellant was fair, equitable and not excessive?

APPELLANT’S COUNSEL SUBMISSIONS
On issue three, learned counsel for the Appellant had submitted that the sentences passed on the Appellant by the Court below was manifestly excessive, unfair and inequitable in the circumstance and contended that although the Court below had the discretion in matter of sentencing, such discretion must be exercised judicially and judiciously and the reason for the exercise of such discretion one way or the other should be apparent on the face of the record and urged the Court to hold that in circumstances as in the instant case where the conviction for several offences arose from the same set of facts the sentences and imprisonment ought to run concurrently and not consecutively and to allow the appeal and interfere with the sentencing of the Appellant by the Court below. Counsel relied onIortim V. State (Supra) @ p. 733; Emenegor V. State (2010) All FWLR (Pt. 511) 884 @ p. 936; Nwude V. FRN (2016) 5 NWLR

(Pt.1506) 471 @ p. 483.

RESPONDENT’S COUNSEL SUBMISSIONS
As part of his sole issue, learned counsel for the Respondent had submitted that that the sentencing of the Appellant by the Court below was fair, equitable and not excessive in that in law a trial Court has the discretion to impose sentences for offences charged but which discretion must be exercised judicially and judiciously and contended that the Court below acted judiciously and judicially when it sentenced the Appellant to the various terms of years in prison for the various offences with which he was duly convicted and to dismiss the appeal and affirm the sentences imposed on the Appellant by the Court below.

RESOLUTION OF ISSUE THREE
My lords, issue three deals exclusively with the exercise of discretion by the Court below on sentencing upon conviction for offences as to whether it was exercised judiciously and judicially as required of it by law. However, discretion must be exercised with reference to the established facts and never whimsically without any regards to the circumstances of each case where a Court is called upon to exercise its discretion. In the

instant appeal, there is no dispute as to the terms of and number of years of imprisonment meted out on the Appellant by the Court below and that they are to run consecutively. While, the counsel for the Appellant had contended, and vehemently too that the sentences imposed on the Appellant by the Court below was manifestly excessive, unfair and inequitable in the circumstances of the case, it has been contended with equal vehemence by counsel for the Respondent that the Court below had exercised its discretion both judicially and judiciously in the sentences imposed on the Appellant for the heinous crimes for which he was duly convicted.
Now, a trial Court has discretion in matters of sentence to be imposed upon conviction for a crime where the law does not provide for a mandatory sentence. However, as with every form of discretion, it must be exercised judicially and judiciously. A trial Court must not and cannot impose any sentence in excess of that provided by law, though it can in the exercise of its discretion impose a lesser sentence than that provided by the law having regard to the facts and circumstances of the case before it but in all cases

of exercise of its discretion in matters of sentencing, it is desirable that a trial Court should state in its judgment the factors that influence its decision. See Iortim v. State (1997) 2 NWLR (Pt. 490) 711 @ p. 733. See also Emenegor V. State (2010) All FWLR (Pt. 511) 884 @ p. 936; Nwude V. FRN (2016) 5 NWLR (Pt.1506) 471 @ p. 483.
There is no doubt that a trial Court has the discretion either to order sentences to run concurrently or consecutively but which discretion must be exercised having due regards to the circumstances of the case before it. However, in deciding to order sentences to run currently or consecutively, a trial Court should bear in mind that where the conviction of an Accused person is founded on same set of facts giving rise to different offences, sentences should be ordered to run concurrently and not consecutively. There is really no rule of the thumb on these issues but every exercise of discretion must be one geared towards the attainment of even handed and fair minded justice to the parties. See Musa V. State (2012) 3 NWLR (Pt. 1286) 59 @ p. 71.

In the instant appeal, the Court below had imposed the following sentences on

the Appellant, to wit:
i. Count 1 – 7 years IHL
ii. Count 2 – 10 years IHL
iii. Count 4 – 3 years IHL
iv. Count 5 – 5 years
However, the above sentences were then ordered to run consecutively, and thus amounting to 25 years imprisonment with hard labor.
I have taken a second look at the entire facts and circumstances leading to the arrest, trial and conviction of the Appellant by the Court below and it does appear to me that the facts of the entire case arose from the same set of facts and which the Court below ought to have taken into consideration in making its order as to whether the sentences, which I find as very fair and reasonable, should run concurrently or consecutively. I have skimmed through the entire judgment and sentencing proceedings but I cannot find on the printed record the reason for order of the Court below for the sentences to run consecutively. See pages 126 – 127 of the Record of Appeal.
Now, it is not being disputed that the Appellant was remanded and remained in prison custody both while awaiting trial and throughout his trial up to his conviction and sentence by the Court below. I have already

observed that the offences for which the Appellant was convicted and sentenced arose from the same set of facts and that there is nothing on the printed record as to the reason, if any at all, why the sentences were ordered to run consecutively. There was also no record of the commencement of the term of years in the sentences imposed on the Appellant by the Court below.
In the above circumstances therefore, this is one sentencing that this Court, in my finding, must interfere with to order that the sentences should run concurrently and to commence from the date of first remand of the Appellant in Prison Custody by the Court below to await his trial for the offences alleged against him by the Respondent. This is what, in my view and I so hold, the justice of this case demand under our law!
Now, one of the most effective ways, in my thinking, to draw serious but long overdue attention to the length of time persons accused of grave offences spend in prison custody awaiting trial and without bail is to ensure that if any such person is ultimately convicted and sentenced by a Court of law, then the time already spent in prison custody awaiting trial

from the date of his remand by the Court pending his trial shall and must be reckoned with in the computation of his prison term. I think this is what fair handed justice would demand and not to throw away the often long years spend in prison custody by a convict while awaiting trial. In the instant appeal, the Appellant’s counsel had suggested that the Appellant had spent about three years and six months in prison custody before the date of his conviction. I have skimmed through the Record of Appeal but could not say with certainty the correctness or otherwise of this information to enable this Court act on it. However, the prison authorities should, and indeed must, know and therefore, the sentences imposed on the Appellant shall run concurrently since all the offences for which he was rightfully convicted arose from one set of facts. However, the sentences shall be computed form the date of the remand of the Appellant in the prison custody by the Court below to await his trial, information which must be within the knowledge of the Prison Authorities.

In the light of all the above, issue three is hereby resolved in favor of the Appellant against

the Respondent.

On the whole therefore, having resolved issues one and two for determination in this appeal against the Appellants in favour of the Respondent but having resolved issue three for determination in favor of the Appellant against the Respondent, I hold that the appeal succeeds in part on issue three only and therefore, ought to be allowed in part. Consequently, it is hereby so allowed in part.

In the result, the judgment of the High Court of Delta State, Coram: M. Umukoro, CJ.,in Charge No. A/10C/2012: The State V. Daniel Birifou & Ors., delivered on 10/6/2015, wherein the Appellant was convicted for the offences of Conspiracy to commit Kidnapping, Kidnapping, Stealing and Illegal Possession of Firearms and was sentenced to an aggregate of 25 years imprisonment, while discharging and acquitting him for the offence of demanding with menace is hereby affirmed.

However, the order of the Court below of the sentences on the terms of imprisonment to run consecutively to an aggregate of 20 years imprisonment is hereby set aside as being an injudicious exercise of discretion by the Court below without any reason whatsoever set forth

in the judgment for this course of sentencing the Appellant by the Court below.

In its stead, the sentences shall run concurrently and the Appellant shall therefore, serve 10 years imprisonment to be computed from the date of his first remand in Prison Custody by the Court below awaiting his trial before the Court below.

TUNDE OYEBANJI AWOTOYE, J.C.A.: I entirely agree.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read, before now the judgment just delivered by my learned brother, Biobele Abraham Georgewill, JCA, I agree with the reasoning and conclusion of my learned brother.

I abide by all the order made in the leading judgment.

Appearances:

Mrs. Itohan Richards For Appellant(s)

A. Okoh Esq., Learned Assistant Director, Ministry of Justice, Delta State. For Respondent(s)