CHINYERE AHAMEFULA v. THE STATE
(2018)LCN/12260(CA)
In The Court of Appeal of Nigeria
On Friday, the 7th day of December, 2018
CA/OW/175C/2015
RATIO
EVIDENCE: TO PROVE THE OFFENCE OF CONSPIRACY
“I agree totally with him on the definition of conspiracy as enunciated in these cases. However it is trite that the offence of conspiracy may be difficult to prove as it is the intent of conspirators. As has been held in MONDAY YAKUBU VS. THE STATE (SUPRA), conspiracy demands proof of the agreement of the minds of the conspirators. Manifestation of the intent or intention of the conspirators in the acts or conducts of the conspirators inmost cases can only be inferred from the acts of the conspirators.” PER IBRAHIM ALI ANDENYANGTSO, J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria
Between
CHINYERE AHAMEFULA Appellant(s)
AND
THE STATE Respondent(s)
IBRAHIM ALI ANDENYANGTSO, J.C.A. (Delivering the Leading Judgment):
On the 16th April, 2014, the Hon. Justice T.U. Uzokwe, J., sitting at the Aba Judicial Division of the Abia State High Court, handed down judgment in which he convicted and sentenced the Appellant to 80 years imprisonment without an option of fine. Aggrieved by the decision the Appellant filed a notice of appeal (see pages 209 214 of the Record of Appeal) dated 30/6/2014 against both her conviction and sentence. Nine (9) grounds of appeal were filed, out of which the following issues were distilled:-
(1) whether the lower Court was right in admitting the extra judicial statement of the Appellant in evidence without first conducting a trial within trial to ascertain its voluntariness (Ground 1).
(2) Whether it was proper for the lower Court to have admitted the extra-judicial statement of the deceased 1st accused in evidence and to have convicted the Appellant based on it (Grounds 2 & 9).
(3) Whether the lower Court was right in holding that the Appellant is guilty merely because she kept a child in her house (Ground 3).”
(4) Whether the trial judge was correct in holding that the Appellant was a staff of the 3rd accused at Chim Motherless Babies Home and relying on it to convict the Appellant on charges of conspiracy (Grounds 4 & 5).
(5) Whether the sentence of 80 years imprisonment with hard labour without the option of fine given to the Appellant by the trial Judge was fair in the circumstances (Grounds 6).
(6) Whether it was correct for the trial judge to have convicted the Appellant and discharged a co-accused (Ground 7).
(7) Whether it was proper for the learned trial judge to conduct the trial in a language other than the language of the Court and without the use of an interpreter (Ground 8).
The Brief of argument settled by S. A. Somiari Esq., was dated 27th day of January, 2017, filed on 31st January, 2017 but was deemed properly filed and served on 5th December, 2017.
It would appear that the respondent did not contest this appeal as they did not file any brief nor participated in the hearing of the appeal when it was heard on the 4th October, 2018, on which day this Court was informed that the respondent who was served with the processes of the Court, was served hearing notice on the 18th July, 2018.
On the 4th October, 2018 when this appeal came up for hearing, S. A. Somiari Esq., learned counsel for the appellant argued the appeal and adopted his brief of argument and urged us to allow the appeal and grant all the reliefs sought by the appellant.
It is pertinent at this stage to summarize the facts of this case. The appellant along with five others, was charged with the offences of conspiracy, kidnapping from guardianship and buying or selling a person. The charge contained six counts on information dated the 1st day of March, 2010. All the accused pleaded not guilty to all the counts (see pages 91 – 93 of the record of Appeal). The prosecution then called 5 witnesses and tendered 21 Exhibits including the statement of the deceased 1st accused. Just like the other accused, the appellant denied all the allegations in the counts and gave evidence in her own defence. At the end of the day the learned trial judge, in his judgment delivered on 16th day of April, 2014 convicted the appellant on all 6 counts of the charge and sentenced her to a cumulative term of 80 years imprisonment with hard labour and without option of fine.
I shall now take the issues.
ISSUE ONE
The learned appellant’s counsel submitted that it is trite law that in criminal trial or criminal proceeding, where an accused person avers that a confessional statement was obtained from him/her by torture, oppression and/or any form of involuntary means, the proceeding must be suspended and a trial-within-trial conducted by the Court in order to determine the voluntariness or otherwise of the confessional statement. He referred to S. 29(2) of the Evidence Act, 2011 (as amended) which he quoted. He also referred to S. 29(5) of same which defines
‘Oppression’ to include ‘torture, inhuman or degrading treatment, and the use of violence whether or not amounting to torture.’
Referring to EKE VS. THE STATE (2011) 5 NWLR (Pt. 1235) 589, OLABODE VS. THE STATE (2009) ALL FWLR (Pt. 500) 607and JIMOH VS. THE STATE (2014) LPELR 22464 (SC), Learned Appellant’s Counsel submitted that once an accused (in this case the appellant) had stated that he or she was tortured before signing the confessional statement, it behoves the trial Court to conduct a trial-within-trial to determine the voluntariness or otherwise of the statement. He submitted that the trial judge’s failure to conduct a trial-within-trial as required by law occasioned miscarriage of justice and urged us to set aside the trial, conviction and sentence of the appellant on this issue.
RESOLUTION OF THE ISSUE
It is pertinent to look at the proceedings of the lower Court dealing with the admission of the statement of the Appellant before deciding whether the trial Court failed in its duty to conduct a trial-within-trial.
From pages 105 – 113 of the Record of Appeal is the testimony of PW 4 – Woman Sgt. Ahamefula Chukwukereka. She was the first Police officer who started investigation of the case at the Central Police Station (CPS) Aba. She recorded the Appellant’s statement which she volunteered to the Police.
I hereby reproduce part of her testimony for better understanding from page 106 line 34 thus:-
I cautioned the 2nd accused person Chinyere Ahamefula, she volunteered her statement. She stated that she took the little boy to Uchenna Alfred (3rd Accused) and that 3rd Accused gave her the sum of N200,000.00 and she shared the money according to the role played by each of the participants, she said she took N75,000.00 for herself. She gave the 1st accused person the Sum of N25,000.00
At page 111 of the record of appeal, the following excepts can be seen:
PW4:- This is the statement of Chinyere Ahamefula (2nd accused). Mr. Ebaye: The 2nd accused denied making the statement so I object.
Mr. Greg Chikezie: mere denial or retraction cannot step (sic) this statement as being admitted. We urge the Court to admit the statement.
RULING
The fact that accused merely denies her statement does not warrant the Court to throw said statement away.
The statement is relevant and is hereby admitted and marked Exhibit E.
PW4:- This is the attestation Ebaye: No objection.
Court: tendered and marked: Exhibit F
This statement Exhibit E is contained on pages 12 – 14 and also pages 64 – 66 of the record of appeal.
When it was tendered and admitted as Exhibit E there was no issue of involuntariness raised by the counsel to the 2nd accused, nor the Appellant. The only issue was that of retraction.
Of course the Police State C.I.D Umuahia conducted their investigation by recording statements again from all the accused, the appellant inclusive.
From the record of appeal, it was only when PW5 from the State C.I.D was to tender the statement of the appellant at page 120 of the Record of Appeal that her counsel first raised the issue of the same being made under duress. It is clear to me that these statements i.e Exhibit D and 1D3 are similar in contents. It is also clear to me that the Court below did not rely only on I.D3 to convict and sentence the appellant. Exhibit ‘D’ did not call for trial-within-trial. It seems clear to me that the issue of duress was introduced into the matter by the learned counsel to the 2nd accused (now the appellant) as an afterthought!
I also hold the candid view that raising the issue of trial-within-trial at the stage he did by the Appellant’s Counsel is belated.
It is my firm view that the issue of trial-within-trial did not arise. I so hold. This issue one is therefore answered in the affirmative as it did not specify which of the extra – judicial statements of the appellant at the lower Court was being referred to.
It is resolved against the appellant.
ISSUE TWO
I have carefully scrutinized the extra-judicial statement of the deceased 1st accused and I have not been able to find where the learned trial judge relied on it to convict the Appellant. Therefore the submission of the learned Appellant’s Counsel, though being proper and good law, finds no applicability in this case.
He has submitted, based on Evidence Act, Section 29(4) and the cases of EVBUOMWAN VS. COMMISSIONER OF POLICE (1961) W.N.L.R 257 and DANLAMI OZAKI & ANOR VS.THE STATE (1990) 1 NWLR (Pt.124) 92 that the statement made by the 1st Accused (deceased) was relied upon in convicting the Appellant. As I said, to the contrary, the learned trial Judge did not make any reference to the extra-judicial statement of the 1st Accused in convicting the Appellant. I shall reproduce the relevant portion of the judgment of the trial Judge at page 203 of the Records of Appeal for support of my findings:
“… The 2nd Accused admitted that the boy Light was brought to her by the 1st Accused and she kept him in her house until she was tracked down by PW3 and arrested with the help of some Bakassi Men. That the 1st Accused gave her N75,000.00 as her own share of the sale of the boy. There is no doubt in my mind that the 2nd Accused knew that the child was stolen. If she believed that nothing was amiss then she would not have hidden the money under her bed as stated by her. She never said that the child belonged to 1st Accused so why keep another person’s child in her house? 2nd Accused is definitely guilty as charged in the counts concerning her.”
With due respect to the Appellant’s Learned Counsel, I fail to see where reference was made to the extra-judicial statement of the deceased 1st Accused or reliance placed thereon in convicting the Appellant. Even though the statement of the 1st Accused was admitted, it was never made use of by the trial Court in convicting any of the Accused so convicted.
This issue is resolved against the Appellant.
ISSUE THREE
Learned Appellant’s Counsel has submitted that the Lower Court was wrong in holding that the Appellant is guilty merely because she kept a child in her house. He submitted that from the record the Appellant did not join the 1st Accused in stealing/kidnapping any of the children. Also that the Appellant did not know that she was handing the victim out to the 3rd Accused for the purpose of their being sold. For the above reasons, submitted Learned Appellant’s Counsel, the Appellant’s guilt was not proved by the prosecution since there was no actus reus and mens rea which are the two vital ingredients of the offences with which the Appellant was charged and for which she was convicted. There is overwhelming evidence from the Records of Appeal which negates the view and submission of Learned Counsel for the Appellant. The statement of the Appellant Exhibit D gives a lie to the contention above. The evidence of the Appellant before the Court speaks the contrary.
I find no difficulty in holding that this issue is resolved in the affirmative. As a matter of fact the learned trial Judge properly analyzed the evidence of the prosecution and defence before him and made findings of fact upon them before arriving at his conclusion. It is not correct therefore to say that the trial Court relied solely on the fact that the Appellant kept the child and so was guilty of the offences as charged. I resolve this issue against the Appellant.
ISSUE FOUR
This deals with the charge of conspiracy. Learned Counsel for the Appellant has relied on the cases of MONDAY YAKUBU VS. THE STATE (2014) LPELR 22401 (SC); USMAN KAZA VS. THE STATE (2008) 1 – 2 S.C. 151 at 195 and ODUNEYE VS. THE STATE (2001) 1 S.C. (Pt.1) 1 to define the offence of conspiracy. I agree totally with him on the definition of conspiracy as enunciated in these cases. However it is trite that the offence of conspiracy may be difficult to prove as it is the intent of conspirators. As has been held in MONDAY YAKUBU VS. THE STATE (SUPRA), conspiracy demands proof of the agreement of the minds of the conspirators. Manifestation of the intent or intention of the conspirators in the acts or conducts of the conspirators inmost cases can only be inferred from the acts of the conspirators.
I have not seen anything in the Records of Appeal to compel me to disturb the findings of fact made by the Learned trial Court. So this issue is resolved against the Appellant.
ISSUE FIVE
This deals with the sentence of 80 years imprisonment imposed on the Appellant with hard labour and without an option of fine complained of in Ground 6 of the Appeal.
It is the submission of the Learned Appellant’s Counsel that the sentence is harsh, excessive and punitive in the circumstances. The case of AMINU TANKO VS. THE STATE (2009) 4 NWLR (Pt. 113) 430 cited is good law in the exercise of discretion by trial Courts in passing sentences. In the instant case, the learned trial Judge strictly abided by the provisions of the Act under which the Appellant was charged, convicted and sentenced.
From the Records of Appeal at page 205 the learned trial Judge, while sentencing the Appellant amongst other convicts stated thus:
I have listened to the plea of the Accused persons and the learned Counsel for the Accused persons and shall go ahead to sentence as provided by the law.
Now Section 19(1)(a) of the Trafficking in Persons (Prohibition) Law Enforcement and Administration Act 2003 fixes the sentence upon conviction at 14 years. The Trial Judge therefore could not have passed lesser sentences.
Therefore I answer this issue in the affirmative i.e against the appellant and in favour of the Respondent.
ISSUE SIX
Having considered carefully the submission of learned Appellant’s Counsel and the authority of the case of EBRI VS.THE STATE (2004) 11 NWLR (Pt. 885) 589, it is clear that there is distinction in this case where the 5th Accused was discharged and acquitted. Besides the lack of evidence linking the other Accused to the offence, there were other pieces of evidence in the Records of Appeal which fixed the Appellant with the commission of the other offences. It is to be observed that even if the Appellant is discharged and acquitted in respect to Count 4 she would not be as lucky in the other counts. I resolve this issue against the Appellant.
ISSUE SEVEN
This is a complaint against the trial Judge who was alleged to have conducted the proceeding in a language other than the language of Court and without the use of interpreter.
Considering the submission of learned Counsel, I hold the candid view that there is nowhere in the record that the trial Judge conducted the proceedings in a language other than that of the Court. All the Accused including the Appellant were represented by Counsel. None of them raised a complaint on this point. I am afraid that this issue has no ground upon which to stand. I would not waste time on this. I resolve the same against the Appellant. On the whole, this appeal fails and is hereby dismissed as lacking in merit. I hereby affirm the judgment of the trial Court.
RAPHAEL CHIKWE AGBO, J.C.A.: I agree
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I agree
Appearances:
S.A. SomiariFor Appellant(s)
Respondent’s Counsel AbsentFor Respondent(s)
