DAHIRU v. IGP
(2022)LCN/16312(CA)
In The Court Of Appeal
(PORT HARCOURT JUDICIAL DIVISION)
On Wednesday, September 07, 2022
CA/PH/41CR/2020
Before Our Lordships:
Joseph Shagbaor Ikyegh Justice of the Court of Appeal
Ridwan Maiwada Abdullahi Justice of the Court of Appeal
Gabriel Omoniyi Kolawole Justice of the Court of Appeal
Between
YUNUSA DAHIRU APPELANT(S)
And
THE INSPECTOR GENERAL OF POLICE RESPONDENT(S)
RATIO:
WHEN ISSUE OF JURISDICTION IS RAISED BY PARTIES OR COURT IT MUST BE RESOLVED FIRST AS A MATTER OF PRIORITY
The fulcrum of the Appellant’s grievances on this issue is that the Federal High Court Yenagoa, Bayelsa State has no jurisdiction to try the charge slammed against the Appellant, as the alleged offence not committed in Bayelsa, therefore it lacks territorial jurisdiction. While the Respondent is of the view that the Federal High Court Yenagoa is clothed with the jurisdiction to hear the charge by virtue of the provision of Section 45 A – E of the Federal High Court Act. Where issue of jurisdiction is raised by parties or by the Court suomotu, that issue must be resolve first as a matter of priority. See NDUUL V. WAYO & ORS. (2018) LPELR 45151 (SC) NWOSU V. FRN & ORS. (2013) LPELR 22143. RIDWAN MAIWADA ABDULLAHI, J.C.A.S
THE QUESTION OF TERRITORIAL JURISDICTION
Territorial jurisdiction implies a geographical area within which the authority of the Court may be exercised and outside which the Court has no power to act.
In DARIYE V. FRN (2015) LPELR 24398 (SC), the Supreme Court had this to say:
“On the question of territorial jurisdiction of the trial Court and whether the said trial Court could hear and determine the charges against the appellant, it suffices to re-iterate view of this Court in Nyame V. FRN (2010) ALL FWLR (Pt. 527) 618 where Adeleke JSC laid down a very illuminating guide on how to resolve the issue of venue of trial of an accused person. According to the legal Amazon, whenever the issue of the venue of the trial of an accused person comes up for determination, the most appropriate way of resolving the issue is to identify the offence charged and the element of same as contained in the proof of evidence with view to determining whether any of the acts constituting the offence occurred in the particular place where the accused is being tried.” RIDWAN MAIWADA ABDULLAHI, J.C.A.
MEANS THE PROSECUTION CAN USE IN PROVEING THE GUILT OF AN ACCUSED PERSON
In criminal cases, the prosecution may prove the guilt of an accused person either by his free, cogent and voluntary confessional statement or evidence of an eye witness or by circumstantial evidence from which the guilt of an accused person can be inferred by the Court or by a combination of any or all of the means. See ILODIGWE V. STATE (2012) 18 NWLR (Pt. 1331), MAIGARI V. STATE (2013) 17 NWLR (Pt. 1384)424, IGBIKIS V. STATE (2017) 11 NWLR (Pt. 1575) 125. RIDWAN MAIWADA ABDULLAHI, J.C.A.
THE PROSECUTION IS TO ESTABLISH ITS CASES BEYOND REASONABLE DOUBT
Proof beyond reasonable doubt does not evinces proof beyond all shadow of doubt. Once the prosecution has been able to prove that an offence has been committed and that no person other than the accused person committed the offence, the prosecution is said to have established its cases beyond reasonable doubt. See DIBIA V. STATE (2017) 12 NWLR (Pt. 1579)196, AGU V. STATE (2017) 10 NWLR (Pt. 1573) 230, OBI V. STATE (2013) 5 NWLR (1346) 68 and BABATUNDE V. STATE (2014)3 NWLR (Pt. 1395) 568 RIDWAN MAIWADA ABDULLAHI, J.C.A.
SENTENCING IS A MATTER AT THE DISCRETION OF THE TRIAL COURT
Sentencing is a matter at the discretion of the trial Court and where it is exercised judicially and judiciously, an Appellate Court will not interfere with the exercise unless it is manifestly excessive. See ABIODUN V. FRN (2018) LPELR 43838 (SC), ONOMOKUWAJO V. FRN (2013) LPELR 2018 4 (SC). The trial Court sentenced the Appellant for prison terms of five years on count 2, seven years on count 3, seven years on count 4 and another seven years on count 5 respectively. The trial Court held at page 190 of the record of Appeal thus:
“The prison terms shall run consecutively and shall begin to run from the date the convict was subsequently remanded in prison custody on 25th May, 2019.” RIDWAN MAIWADA ABDULLAHI, J.C.A.
RIDWAN MAIWADA ABDULLAHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court Yenagoa Judicial Division, holding at Yenagoa delivered on 21st May, 2020 by J. E. Inyangi J. in Charge No. FHC/YEN/17C/2016. The Appellant by an Amended charge filed on 6th November, 2018 was charged on a five counts charge for the offences of conspiracy, abduction, sexual exploitation and unlawful sexual intercourse, contrary to Sections 27(a), 13(2)(b), 15(a) and 16(1) of the Trafficking in Persons (Prohibition) Enforcement and Administration Act, 2015 as well as Section 31 (2) of the Child’s Right Act Cap C50 Laws of the Federation of Nigeria 2003. The Appellant was discharged and acquitted on count one and found guilty and convicted on counts 2, 3, 4 and 5.
BRIEF STATEMENT OF FACTS
The facts of this case as presented by the prosecution are that the Defendant, Yunusa Dahiru a native of Tofa Village of Kura Local Government Area Kano State, who also reside at Opolo Town, Yenagoa (a tricycle rider) at Yenagoa. That on 12th February, 2015, the defendant abducted Ese Rita Oruru, a thirteen years old (PW1) without the consent of her parents and took her to Kano State by means of deception abduct and subjected her into sexual exploitation and indeed had illicit intercourse with her in Kano State and as a result of that she became pregnant and later gave birth to a baby. The defendant was charged for the offences of conspiracy, abduction, seduction into illicit intercourse, sexual exploitation and unlawful intercourse contrary and punishable under Section 27 (a), 13 (2) (b), 15(a), 16 (1) of the Trafficking in Persons (Prohibition) and Administration Act, 2015 and Section 31 (2) of the Child’s Rights Act Cap 50 Laws of the Federation of Nigeria, 2003.
On his part, the defendant case was that he did not take Ese to Kano. That it was his friend, Abdullahi Zamfara brought her (Ese) to Kano 2 weeks after he had left for Kano and that he never had sex with her either while in Bayelsa or Kano. That he advised his friend Abdullahi Zamfara to take Ese back to Bayelsa and he never set his eyes on her until when he was arrested and taken to Abuja.
At the trial and in an attempt to prove the charge against the Appellant, the Respondent called five witnesses, tendered some documents and closed its case. The Appellant testified for himself and called no other witness. At the close of evidence, learned counsel for the both sides filed and exchanged their final written addresses.
In a considered judgment, delivered on 21st May, 2020, the learned trial Judge found the Appellant guilty on counts 2, 3, 4 and 5, convicted and sentenced him to 26 years imprisonment cumulatively.
Aggrieved by the said judgment, the Appellant filed a Notice of Appeal on 11th August, 2020 containing 11 eleven grounds of appeal seen at pages 192 – 205 of the record of appeal.
As required by law, parties through their respective counsel filed and exchanged their brief of arguments. The appeal was heard on 7th day of June, 2022. During the hearing of the appeal, learned Senior Counsel for the Appellant, Abdul Mohammed, SAN, adopted the Appellant’s Brief of Argument filed on 2nd September, 2021 but deemed properly filed on 25th January, 2022 and the Appellant’s Reply Brief filed on 30th March, 2022 but deemed properly filed on 7th June, 2022, as representing his arguments for the Appeal. He urged the Court to allow it.
Similarly, learned counsel for the Respondent, Zedieme Gwegwe, Esq., adopted the Respondent’s Brief of Argument filed on 10th March, 2022 but deemed properly filed on 7th June, 2022 as his reactions against the appeal. He urged the Court to dismiss it.
In the Appellant’s Brief of Argument, he crafted five issues for determination to wit;
1- Whether or not the Child Rights Act, 2003 and the Trafficking in person(s) (Prohibition) Enforcement and Administration Act, 2015 are statute of general Application all over the Federation in the light of the provision of Section 4(1) – (4) of the Constitution of the Federal Republic of Nigeria.
2- Whether or not the trial Court has jurisdiction to try and convict the Appellant.
3- Whether or not the prosecution has led cogent and credible evidence to entitle the Court to convict the Appellant.
4- Whether the learned trial Court judge was right in sentencing the Appellant for a prison term of imprisonment over and above the term provided for in the punishment section of the offence contained in content 111 of the charge.
5- Whether the learned trial Court judge was right in sentencing the Appellant to a prison term without abiding the mandatory provisions of Section 416(D) and (1) of the Administration of Criminal Justice Act.
Learned counsel for the Respondent, adopted the five (5) issues formulated by the Appellant for determination of this appeal.
I have gone through the issues formulated in this appeal. The Appellant’s issue two (2) borders on jurisdiction. The hints of this issue centres on the jurisdiction of the lower Court to hear the suit which metamorphosed into this appeal. The law gives the Courts the licence to handle issue of jurisdiction first when raised in any proceeding. See GARBA V. MOHAMMED (2016) 16 NWLR (Pt. 1537) 14 and A. G. KWARA V. ADEYEMO (2017) 1 NWLR (Pt. 1546) 210. I will therefore first consider and resolve issue two (2) being issue of jurisdiction.
ARGUMENTS ON ISSUE TWO
Learned Senior Counsel for the Appellant submitted that jurisdiction is the lifeblood of adjudication and by the provision of Section 251 (1) (5) and Section 251(3) of the 1999 Constitution, the National Assembly is the only legislative entity that is conferred with the powers to provide for additional jurisdiction of the Federal High Court. That the Child Rights Act and Trafficking in Human Persons Act which the Appellant was tried and convicted can only be enforceable if they have been enacted by the Bayelsa State House of Assembly and show its domestication in view of their legislative list.
Learned silk submitted that if the contention of the Respondent is that the charge was filed in the Federal High Court because the Federal High Court’s jurisdiction cut across the country, the provision of Section 45 of the Federal High Court Act specifically provides the extent to which the Federal High Court can exercise its territorial jurisdiction. He cited the case of RODA V. FRN (2015) 10 NWLR (Pt. 1468) 427 for the view.
Learned silk argued that the Appellant had challenged the jurisdiction of the trial Court on the ground that none of the offences or its elements was committed in Bayelsa state and as such, the Court with jurisdiction to try the Appellant was the Federal High Court Kano. That it is the statement of offence and supporting evidence that determines whether the Federal High Court has jurisdiction. He cited EZE V. FRN (2017) LPELR42097 (SC).
He further argued that none of the elements of the offences was committed in Bayelsa and the prosecution did not provide any fact to show that any of the elements of the offence occurred in Bayelsa, therefore, according to learned silk, the trial Court erred in law to have held that it has territorial jurisdiction to try the Appellant in Bayelsa.
Learned silk reviewed the testimonies of PW1 – 5 and submitted that none of witnesses gave any evidence to show that any of the offences was committed in Bayelsa State. That the evidence of PW2 and PW3 as to how PW1 (the victim) was taken to Kano is hearsay and cannot be a basis for a finding of the Court. He cited DANIEL ITODO V. THE STATE (2019) LPELR 49069 (SC) for view.
Learned silk contended that the trial Court was in error when it relied on the state of each offence in the five counts charge preferred against the appellant to hold that it had jurisdiction to determine the charge. He cited JAMES ONANEFE IBORI & ANOR V. FRN & ORS (2008) LPELR 8370 (CA) for the point. That the trial Court does not have the jurisdiction to try the Appellant in Bayelsa State for an offence which is only recognized in the Federal Capital territory by virtue of Section 299 of the Constitution. He urged the Court to resolve this issue in favour of the Appellant.
In his reaction to this issue, learned counsel for the Respondent submitted that a trial without jurisdiction is a nullity. That jurisdiction of the Court is conferred on it by statute that created it. He cited A. G LAGOS V. HON – JUSTICE L. Y DOSUNMU (1989) 3 NWLR (Pt. 111) 552, GAFAR V. GOVT. KWARA STATE (2007) 4 NWLR (Pt. 1024) 37 for the view. That Section 251 (1) (5) and 251(3) of the Constitution vest jurisdiction on the Federal High Court in criminal cases and matters. Section 7 (10) (5),2(3) (4) of the Federal High Court Act, 2004 vest original jurisdiction in the Federal High Court.
Learned counsel reproduced Section 45 (C), (D) and (E) of the Federal High Court and submitted that the alleged offences as shown on the 5 counts charge against the Appellant fails within the ambit of Section 45 (C – E). That it is the statement of the offence and the proof of supporting evidence that determines whether the Federal High Court has Jurisdiction. He cited EZE V. FRN(2017) LPELR 42097 (SC) for the view. That the trial Court was right to have exercised jurisdiction, tried and convicted the Appellant and that Section 299 relied upon by the appellant is not applicable in the circumstances of this case.
Learned counsel submitted that the Child Right Act, 2003 was not domesticated in Bayelsa State as at the time of the commission of the offences, but there exist a Federal Law (Trafficking) in Persons (Prohibition) Enforcement Administration Act, 2015) to control the activities of traffickers in Nigeria and being an act of the National Assembly, the trial Court was right to have exercised jurisdiction. That considering the facts and the evidence placed before the Court, the trial Court has the jurisdiction to try and convict the Appellant and he urged the Court to so hold and resolve this issue in favour of the Respondent.
RESOLUTION
The fulcrum of the Appellant’s grievances on this issue is that the Federal High Court Yenagoa, Bayelsa State has no jurisdiction to try the charge slammed against the Appellant, as the alleged offence not committed in Bayelsa, therefore it lacks territorial jurisdiction. While the Respondent is of the view that the Federal High Court Yenagoa is clothed with the jurisdiction to hear the charge by virtue of the provision of Section 45 A – E of the Federal High Court Act. Where issue of jurisdiction is raised by parties or by the Court suomotu, that issue must be resolve first as a matter of priority. See NDUUL V. WAYO & ORS. (2018) LPELR 45151 (SC) NWOSU V. FRN & ORS. (2013) LPELR 22143.
Jurisdiction means the authority the Court has to decide matters before it or to take cognizance of a matter for its decision.
Territorial jurisdiction implies a geographical area within which the authority of the Court may be exercised and outside which the Court has no power to act.
In DARIYE V. FRN (2015) LPELR 24398 (SC), the Supreme Court had this to say:
“On the question of territorial jurisdiction of the trial Court and whether the said trial Court could hear and determine the charges against the appellant, it suffices to re-iterate view of this Court in Nyame V. FRN (2010) ALL FWLR (Pt. 527) 618 where Adeleke JSC laid down a very illuminating guide on how to resolve the issue of venue of trial of an accused person. According to the legal Amazon, whenever the issue of the venue of the trial of an accused person comes up for determination, the most appropriate way of resolving the issue is to identify the offence charged and the element of same as contained in the proof of evidence with view to determining whether any of the acts constituting the offence occurred in the particular place where the accused is being tried.”
It is pertinent to reproduce the counts charge preferred against the Appellant as embedded on pages 48 – 49 of the printed Record of Appeal. The five (5) counts charges reads:
“Count I
That Yunusa Dahiru ‘m’ of Opolo-Epie, with Dankano Mohammed ‘m’, Mallam Alhassan ‘m’ presently at large between the months of August 2015 and February 2016 at Opolo-Epie Yenagoa in the Yenagoa Judicial Division of the Federal High Court did conspire among yourselves to commit an offence to wit: Abduction and thereby committed an offence punishable under Section 27 (a) of the Trafficking in Persons (Prohibition) Enforcement and Administration Act, 2015.
COUNT II
That you Yunusa Dahiru‘m’ of Opolo-Epie, between the months of August 2015 and February 2016 at Opolo-Epie Yenagoa in the Yenagoa Judicial Division of the Federal High Court abducted one Rita Ese Oruru ‘f’ aged 14yrs by means of coercion, transported and harboured her in Kano State and thereby committed an offence punishable under Section 13 (2) (b) of the Trafficking in Persons (Prohibition) Enforcement and Administration Act, 2015.
COUNT III
That you Yunusa Dahiru ‘m’ of Opolo-Epie, between the months of August 2015 and February 2016 at Opolo-Epie Yenagoa in the Yenagoa Judicial Division of the Federal High Court abducted one Rita Ese Oruru ‘f’ aged 14yrs by use of deception and coercion to go with you from Yenagoa to Kano State with intent that she be forced or seduced into illicit intercourse and thereby committed an offence punishable under Section 15 (a) of the Trafficking in Persons (Prohibition) Enforcement and Administration Act, 2015.
COUNT IV
That you Yunusa Dahiru ‘m’ of Opolo-Epie, between the months of August 2015 and February 2016 at Opolo-Epie Yenagoa in the Yenagoa Judicial Division of the Federal High Court procured one Rita Ese Oruru ‘f’ aged 14yrs and subjected her into sexual exploitation in Kano State and thereby committed an offence punishable under Section 16 (1) of the Trafficking in Persons (Prohibition) Enforcement and Administration Act, 2015.
COUNT V
That you Yunusa Dahiru ‘m’ of Opolo-Epie, between the months of August 2015 and February 2016 at Opolo-Epie Yenagoa in the Yenagoa Judicial Division of the Federal High Court had unlawful sexual intercourse with one Rita Ese Oruru ‘f’ who was a 14 year old child and thereby committed an offence punishable under Section 31 (2) of the Child’s Rights Act Cap C50 Laws of the Federation of Nigeria, 2003.”
The five (5) counts charge leveled against the Appellant falls within the criminal wrongs of conspiracy, abduction, sexual exploitation and unlawful sexual intercourse, an offence under Trafficking in persons (prohibition) Enforcement and Administration Act, 2015 and Child Rights Act Laws of the Federation of Nigeria 2003. Criminal jurisdiction may be exercised by a Court where elements of an alleged crime have been committed within the territorial jurisdiction of the Court.
Learned trial judge after considering the Appellant’s submissions on the issue of its jurisdiction reproduced Section 45 (C – E) of the Federal High Court Act and held at page 170 of the record thus:
“Now, the alleged commission of the offences by the Defendant as stated in the statements of each offence in the five counts charge preferred against the defendant very clearly fall within the ambit of Section 45 (c –e) above and I so hold. It is settled that it is the statement of the offence and the supporting affidavit that determines whether the Federal High Court has jurisdiction. See Eze V. FRN (2017) LPELR 42097 SC.”
In proof of its case, The prosecution called five (5) witnesses. PW1 the alleged victim of the crime testified at pages 82 – 86 of the record thus:
“Then I remembered that the plates that I used to sell food in the morning, I had not collected them so I went to the place I served the food which is the place where Hausa people gather to eat. That is all I can remember that happened on 12th August.
They (the Hausa people) gather there near my mommy’s shop at Ishe Street. Opolo. The next thing I recall is that I saw myself in a place like a village, only mud house and the only person I could recognise is the accused person, he said I should follow a lady I later found out was the brother’s wife to her house. Later that night he came with a bike man and both of us followed the bike man to a man’s house.”
A. It was on the 12 August, 2016 when I went to bring back the plate I did not go to see anybody on the 12th.
Q You had relationship with the defendant while in Yenagoa.
A. No
PW2 testified thus:
“I started asking people in the area whether they had seen Ese. I asked the Yoruba people in the motor pack whether they had seen Ese. They said no. I crossed to the Hausa side. I asked Mr. Dan Kano, he said he had not seen Ese. I went back to my shop and started to cry. Then one Aboki, Mr. Dankadi came to me with plenty Aboki following him behind, he told me since morning, he went to do work at Igbogene, when he returned one of the Aboki told him that the Defendant told him that he is carrying her home and change her to a Muslim and marry herthere.
He knows that Mr. Dahiru took my daughter away and when she asked him, he said he did not know.
I threatened Dan Kano that I was going to arrest them and they said I should not that they would take me to where my daughter was.
Dan Kano and 5 other Hausa men followed me to my house and told my husband that they would take him to where my daughter is that they are from the same community.”
In his defence, the Appellant testified at page 133 of the record thus:
“A. She is my girlfriend.
Q. One of the allegation against you is that you abducted her from Bayelsa against her mind and took her to Kano.
A. I did not take her to Kano.
Q. Tell the Court what transpired between the period you went to Kano and when you were brought back to Yenegoa by the police.
A. I went to Kano 2 weeks after the said Ese had gone to Kano.
Q. Did Ese follow you to Kano.
A. My friend directed her to Kano.
Q. What is the name of your friend.
A. Abdullahi Zamfara.
Q. You earlier said that 2 weeks after you left, Ese met you in Kano how did you meet in Kano.
A. My friend called me in Kano and said she was in Sabon gari, Kano, my friend Zamfara.
I have stated somewhere in this judgment that criminal jurisdiction may be exercised by a Court where elements of an alleged crime has been committed within the territorial jurisdiction of the Court.
Section 45(C – E) of the Federal High Court provides thus;
45 (c)
“When an act is an offence by reason of its creation to any other act which is also an offence, a charge of the first mention offence may be tried by a Court exercising jurisdiction in the area or place either in which it happened or in which the offence with which it was so connected happened.”
45 (D)
“When:
1- It is uncertain in which of several areas or places an offence was committed.
2- An offence is committed partly in one area or place and partly in another or
3- An offence is a continuing one and continues to be committed in more areas or places than one or
4- An offence consists of several acts committed in different area or places such offences may be tried by a Court exercising jurisdiction in any of such areas or places.”
45(E)
“An offence committed while the offender is in the course of performing a journey or voyage may be tried by the Court in or into the area or place of whose jurisdiction the offender or person against whom or the thing in respect of which the offence was committed resides, is or passed in the course of that journey or voyage.”
The criminal jurisdiction of a Court may be determined by reference to the charge alone though evidence in deserving cases need to be led and once it did not fall within the Court’s jurisdiction, the proceeding and conviction become a nullity. The Appellant dwelt on the fact that he did not take Ese to Kano. That it was Abdullahi that brought Ese to him. The Appellant admitted in his testimony before the lower Court that PW1 is his girlfriend; she spent two months with him in Kano but not 6 months. I am of the opinion that the evidence of Abdullahi Zamfara who allegedly took Ese (PW1) to Kano should have been called for him to testify and produce the needed evidence on how Ese was taken to Kano if she was not taken to Kano by the Appellant, this was not done. I therefore agree with the learned counsel for the Respondent that it is the statement of the offence and the supporting evidence that determined whether the Federal High Court has jurisdiction.
I have examined Section 45 (c – e) of the Federal High Court Act, 2004, the statement of the offence and the evidence before the Court. Going by the provision of Section 45(C – E) of the Federal High Court Act, 2004, the statement of the offence and the evidence led, I am of the view that the lower Court did have jurisdiction to try the offences against the Appellant as charged.
In the light of the above, issue 2 is resolved against the Appellant.
Having dispensed with issue two, I will turn to other issues starting with issue one.
ARGUMENTS ON ISSUE ONE
In arguing issue one, learned senior counsel for the Appellant submitted that the legislative power of the National Assembly and that of the State Houses of Assembly must be exercised within the confines of the provision of the Constitution. That Section 4 (1) – (4) of the 1999 Constitution delineate the legislative powers conferred on the National Assembly. Learned silk refers to paragraph 3 and 4 of the (second schedule) of the Constitution on the matters and powers of the National Assembly to make Laws on such matters. He argued that the Child Right and Trafficking in Person(s) are not one of the items enumerated in the Exclusive Legislative List or the Concurrent legislative list, therefore, said counsel for it to be applicable in any state including Bayelsa, it must be domesticated. He argued that the Child Right Act was only domesticated in Bayelsa State sometimes in 2016 after the commission of the alleged offence. That the Child Right Act and Trafficking in Person(s) are not laws in existence in Bayelsa at the time the Appellant was tried and convicted. That a trial and conviction based on a non-existing Law is a nullity. He cited AOKO V. FAGBEMI (1961) 1 ALL NLR 400, SPDC V. ANARO & ORS (2015) LPELR 24750 (SC). He urged the Court to so hold and resolve this issue in favour of the Appellant.
Learned counsel for the Respondent submitted that the Child Right’s Act and the Trafficking Person(s) Act are statute of general application all over the Federation of Nigeria in view of the provision of Section 4 (1) – (4) of the Constitution of the Federal Republic of Nigeria including Bayelsa State. That Section 36(1) of the Trafficking in Persons (Prohibition Enforcement and Administration Act, 2015andSection 252 (1) – (2) of the Constitution conferred jurisdiction on the lower Court to try the offences charged. He contended that the purpose of the enactment of the Trafficking in Person(s) Prohibition Act 2015 is to provide measure against trafficking in Nigeria. That the Trafficking in Person(s) Act being a statute of general application, Bayelsa State need not domesticate it before charging a suspect to Federal High Court. He further contended that the Trafficking in Person(s) Act, 2015 was not enacted for one part of Nigeria and it was enacted March, 2015 while the time of the offence was August, 2016. Therefore, the trafficking law was in existence before the commission of the offence by the Appellant. That the proceeding that led to the conviction of the Appellant is not in nullify. He urged the Court to so hold and resolve this issue in favour of the Respondent.
RESOLUTION
The learned silk for the Appellant argued that the Child Right Act 2003, and Trafficking in Person (Prohibition) Enforcement and Administrative Act, 2015are not laws in Bayelsa State at the time the Appellant was convicted for the offences charged. That the Child Right Act was domesticated in Bayelsa sometimes in 2016 after the alleged commission of the offence and that the domestication cannot have retrospective effect. I do not agree with the learned counsel for the Appellant that the Child Right Act and Trafficking in Person(s) Act are not Laws at the time the Appellant was tried and convicted for the alleged offence. This is because, firstly, the Appellant was alleged to have committed the offences in 2016 and Bayelsa State domesticated the law in 2016. Secondly, the Act is a statute of general application and need not to be domesticated before accused person such as the Appellant be charged tried and convicted.
I think any legislation on child right is for the protection of each and every child, which in my view must be of concern to every well reasonable Nigerian. Such an enactment like all enactment of the National Assembly will be of paramount force and need not to be domesticated. I so hold. See A. G. ONDO V. A.G FEDERATION (2002) LPELR 623(SC).
Issue one is resolved against the Appellant.
ISSUE THREE
”Whether or not the prosecution has led cogent and credible evidence to entitle the Court to convict the Appellant.”
Learned senior counsel submitted that the burden of proving that any person has committed a crime or wrongful act rests on the person who asserts and in discharging the burden, all ingredients of the alleged offence must be proved beyond reasonable doubt and the burden never shifts. He referred to Section 135 (1) of the Evidence Act and the case of ISMA’IL V. STATE (2011) 17 NWLR (Pt. 1277) 601.
Learned silk, reproduced Section 13(2)(b) of the Trafficking in Person(s) (Prohibition) and Administration Act and count II of the charge and submitted that the provision of the said section is not in tandem with the charge. That there was no admissible evidence led to show that the Appellant transported PW1 ‘by coercion’ or any other means to Kano State. He argued that where the evidence led did not support the charge, the charge ought to be dismissed. That the trial Court was wrong when it came to the conclusion that count II was proved. He submitted that no evidence was also ledto support count three, none of the elements required to prove inducement in the commission of the alleged abduction was presented before the Court. He cited the case of SANI V. KANO STATE (2017) for the elements of abduction. That the evidence of PW1 is not enough circumstantial evidence to prove that the Appellant abducted her by coercion and took her to Kano. He further said that where the prosecution in a charge of unlawful canal knowledge is a minor like the prosecutrix in this case, her oral evidence requires corroboration of the sexual intercourse occurred in Kano where the Penal Code regulates the conduct. He cited IKO V. STATE(2001) LPELR 1480 (SC). That the trial Court was wrong to hold that the Appellant had unlawful carnal knowledge of PW1. He urged the Court to so hold and set aside the decision of the trial Court.
Learned counsel for the respondent, submitted that the words coercion, recruit, transport, transfer, harbours, abduct or receives used in the counts of the charge are in place. That from the evidence of PW1 placed before the trial Court, the trial Court was right to hold that the prosecution’s evidence (PW1) was direct and compelling. That the Respondent from the totality of the evidence adduced, had led credible evidence to entitled the Court to convict the Appellant.
Learned silk in his Appellant’s Reply Brief, submitted that the trial Court failed to properly evaluate the evidence before it as a result of which it reached a perverse decision.
RESOLUTION
In criminal cases, the prosecution may prove the guilt of an accused person either by his free, cogent and voluntary confessional statement or evidence of an eye witness or by circumstantial evidence from which the guilt of an accused person can be inferred by the Court or by a combination of any or all of the means. See ILODIGWE V. STATE (2012) 18 NWLR (Pt. 1331), MAIGARI V. STATE (2013) 17 NWLR (Pt. 1384)424, IGBIKIS V. STATE (2017) 11 NWLR (Pt. 1575) 125.
Proof beyond reasonable doubt does not evinces proof beyond all shadow of doubt. Once the prosecution has been able to prove that an offence has been committed and that no person other than the accused person committed the offence, the prosecution is said to have established its cases beyond reasonable doubt. See DIBIA V. STATE (2017) 12 NWLR (Pt. 1579)196, AGU V. STATE (2017) 10 NWLR (Pt. 1573) 230, OBI V. STATE (2013) 5 NWLR (1346) 68 and BABATUNDE V. STATE (2014)3 NWLR (Pt. 1395) 568.
In an attempt to prove its case, the prosecution called four (4) witnesses. PW1 is the victim of the alleged offences. PW2, is the mother of the victim. PW 3, Mr Charles Oruru is the father of PW1. PW4, Deebom Wayii, is the Investigation Police Officer. PW1 gave an undiscredited evidence on how she found herself in Kano and her experience while with the Appellant in Kano. She testified that during the period of her stay, she was first made to stay in Mukaddas house with Yunusa in a particular room and whenever he came he asked to have sex with her and later moved to Tofa and started living in Yunusa village. That when they were taken to A. I. G. Office, she was taken to a hospital and confirmed pregnant and later gave birth to a baby girl on 26/5/16. PW2 and PW3, the parents of the victim (PW1) gave evidence as to how their daughter disappeared and later found in custody of the Appellant. They also gave evidence of their ordeals in Kano and how she was recovered and returned to Bayelsa State. PW4, the Investigation Police Officer, testified that in the course of the investigation, it was found that the Appellant took the PW1 to Kano and abducted her for sexual exploitation and later confirmed that she was pregnant as confirmed by the medical report. That PW1 was handed over to him and he proceeded with her to Bayelsa State, having recovered from the Appellant in Kano State.
The Appellant as DW1, in his testimony before the lower Court stated that PW1 is his girlfriend and her mother promised PW1 to him for a wife. That he did not take her to Kano it was his friend Abdullahi Zamfara that took her to him in Kano two weeks after he left Yenagoa. He admitted abducting PW1 for 2 months, when he testified that PW1 (Ese) spent only 2 months with him in Kano but not six months.
In this perspective, the lower Court at pages 188 – 189 of the Record of Appeal found:
“From the totality of the documentary and oral evidence adduced before this Court, I am satisfied that at all material times PW1 was a child of thirteen years of age within the meaning ascribed to child in Section 277, of the Child Right Act, 2003. It therefore, means that PW1 was incapable ofgiving her consent when she was allegedly abducted from Yenegoa to Kano by the Defendant as 12th August, 2015 or when the defendant allegedly engage in illicit, unlawful carnal knowledge with PW1 or when she was allegedly sexually exploited by the Defendant. From the totality of the evidence adduced by PW1 – PW4, I find direct and compelling, irresistible circumstantial evidence which point to the unassailable fact that only the defendant could have abducted the PW1 and committed the sexual crimes against PW1…
The defendant was very clearly unable to rebut, contradict or demolish the credible, compelling and consistent direct and circumstantial evidence adduced by the prosecutor.”
The above findings of the lower Court is well grounded and I so hold.
Circumstantial evidence is one of the three (3) ways of proving commission of crime. It is an evidence of surrounding circumstances which at times has been described as the best evidence. For the circumstantial evidence to ground conviction, it must be positive, compelling, direct and link the accused with the offence. See OKPAKO V. STATE (2018) LPELR 43875 (SC), THOMAS V. STATE (2017)9 NWLR (Pt. 1570) 230 and OGOGOVIE V. STATE (2016) 12 NWLR (Pt. 1527) 468.
Inferences in law is a conclusion reached by considering other facts and deducing a logical sequence from them. See MOHAMMED V. STATE (2017) 13 NWLR (Pt. 1583) 386, OWHORUKE V. C.O.P. (2015) 15 NWLR (Pt. 1483) 557.
From the totality of the evidence in the instant case, the only inference capable of being drawn from the evidence and the surrounding circumstances is that the Appellant indeed committed the offences charged against him. I do agree with the learned counsel for the Respondent that in all the circumstances of this case, the learned trial judge was right to have relied on the circumstantial evidence and evidence of the prosecution witnesses to hold that the prosecution proved the charges against the Appellant beyond reasonable doubt and I so hold.
Based on the aforesaid, issue three is resolved against the Appellant.
ARGUMENT ON ISSUES FOUR & FIVE
Issue four and five are similar and can be argued and resolved together. I therefore merged the 2 issues as issue 4.
AUGMENTS OF THE ISSUES
Learned Senior counsel submitted that the lower Court erred in passing the maximum sentence for the offence in count 2. That the sentence provided by the provision of Section 13 (2) of the Trafficking in Persons (Prohibition) Act, 2015 is 2 years, therefore, said learned silk, the sentence passed on the Appellant was beyond what is provided in the provision, the sentence is therefore a breach of the said provision. He cited AFOLABI V. STATE (2013) 13 NWLR (Pt. 1371) 292 for the view.
He contended that the Appellant being first offender could not have been sentenced for the maximum term. He cited IBRAHIM GARBA WALA V. FRN (2020) LPELR 52082 CA.
Learned silk quoted the provision of Section 416 (2) (1) of the ACJA 2015 and submitted that the trial Court is not empowered to order that the sentences imposed on the Appellant are to run consecutively. That where legislation imposes any duty by the employment of the word ‘may’, the word ‘may’ is to be interpreted as ‘SHALL’. He refers to the cases of WILLBROS WEST AFRICA INC & ORS. V. MCDONNEL CONTRACT MINNING LTD (2015) LPELR 24808 CA, A.G LAGOS STATE V. KETTA (2016) LPELR 40163 (CA)for the point.
That the holding of the trial Court that the prison terms are to run consecutively, ultra vires the power of the trial Court. That under count 11, the punishment is for a term of not less than 2 years and a fine of not less than N250, 000. He argued that the sentence of seven years imposed on the appellant by the trial Court in respect of count III is unconstitutional as the trial Court has no jurisdiction to impose a higher punishment more than what the Law provided. He refers to the case of UBAIRU V. FRN (2019) LPELR 48252 (CA) and Section 36(8) of the Constitution. He urged the Court to so hold and resolve this issue in favour of the Appellant.
Learned counsel for the Respondent argued issues four and five together and submitted that the trial Court has discretion in sentencing the Appellant and the discretion cannot be taken away from a trial Court provided that the discretion was judicially and judiciously exercised. That the trial Court was right in sentencing the Appellant considering the crime he committed on the PW1 by taking away her future, and virginity. Learned counsel argued that the Administration of Criminal Justice Act, 2015, does not govern criminal sentence, it is just a guide. That since the counts are different and are brought under different laws, the trial judge was right in given consecutive sentences for 2 or more offences committed in the same transaction and urged the Court to so hold.
RESOLUTION
Learned Senior Counsel submitted that the sentence imposed on the Appellant is too excessive and that the holding of the trial Court that the prison terms are to run consecutively was ultra vires. Learned counsel for the Respondent argued that the trial Court has discretion in imposing the sentence on the Appellant. Sentencing is a matter at the discretion of the trial Court and where it is exercised judicially and judiciously, an Appellate Court will not interfere with the exercise unless it is manifestly excessive. See ABIODUN V. FRN (2018) LPELR 43838 (SC), ONOMOKUWAJO V. FRN (2013) LPELR 2018 4 (SC). The trial Court sentenced the Appellant for prison terms of five years on count 2, seven years on count 3, seven years on count 4 and another seven years on count 5 respectively. The trial Court held at page 190 of the record of Appeal thus:
“The prison terms shall run consecutively and shall begin to run from the date the convict was subsequently remanded in prison custody on 25th May, 2019.”
The charges for which the Appellant was tried and convicted carried sentences of not less than 2 years and a fine of not less than N250,000.00 in count 2. In count 3, the imprisonment term is 5 years imprisonment as provided by the Act. While count 4 and 5 provides for not less than 7 years imprisonment. Ordinarily, an Appellate Court will not interfere with a sentence imposed by a trial Court, unless it is manifestly excessive in the circumstances or wrong in principle.
Where as in the instant case, a statute such as Trafficking in Person(s) (Prohibition) Enforcement and Administration Act, 2015 and Child Right Act imposes a maximum sentence, the trial Court is without jurisdiction to impose any term exceeding the prescribed sentence as no discretion exist to be exercised to exceed the prescribed sentence. See AFOLABI V. STATE (2013) 13 NWLR (Pt. 1371) 291, AFOR LUCKY V. STATE (2016) NWLR (Pt. 842) 128.
The Court can rightly use its discretionary power and not to exceed the maximum. The trial Court was wrong to haveexceeded the prescribed sentence of five (5) years and convicted and sentenced the Appellant to seven (7) years, I so hold.
Sentencing is aimed at the protection of the society through prevention of crime or reform of the offender which may be achieved by the means of deterrence, reformation or rehabilitation of the offender. Taking into cognisance of the facts and circumstances of this case, the Appellant is a first time offender, a man of considerable young age and still useful to the society and the fact that the Appellant and PW1 are lovers with a child. I am of the view that the sentences should run concurrently and not consecutively. Issue four is resolved partly in favour of the Appellant.
Having resolved issues one, two and three against the Appellant and issue four partly in favour of the Appellant, the appeal is allowed in part.
In the final analysis and for the avoidance of doubt, I dismiss the appeal against the conviction of the Appellant for the offences charged. The appeal in respect of the sentence imposed by the trial Court on count three (3) succeed. I substitute the word consecutive for concurrently. I therefore order that the sentences are to run concurrently from the date of his arraignment on 25th October, 2018. I affirmed the conviction of the Appellant in the judgment of Federal High Court Yenegoa Division in Suit No FHC/YEN/17C/2016 delivered by J. E. Nyangi J.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I am in agreement with the judgment prepared by my learned brother, Abdullahi JCA, with nothing useful to add.
GABRIEL OMONIYI KOLAWOLE, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother, RIDWAN MAIWADA ABDULLAHI, J.C.A.
His Lordship in his exhaustive and thorough analysis of the four (4) issues raised in the appeal, has accurately resolved all issues raised. I am in total consonance with his reasoning and conclusion.
The appeal against the conviction of the Appellant for the offences charged is hereby dismissed, whereas the appeal in respect of the sentence imposed by the trial Court on count three (3) is meritorious and hereby allowed. The conviction of the Appellant in the judgment of Federal High Court Yenagoa Division in Suit No. FHC/YEN/17C/2016 delivered by J.E. Nyangi J. is accordingly affirmed.
Appearances:
Abdul-Mohammed, SAN, with him, Huwaila Mohammed, Sanusi Musa, and K.S. Olaosabuna, Esq.For Appellant(s)
ZediemeGwegwe, Esq. SCID, Yenegoa, Bayelsa State. For Respondent(s)
