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EBEE v. STATE (2022)

EBEE v. STATE

(2022)LCN/16387(CA)

In The Court Of Appeal

(PORT HARCOURT JUDICIAL DIVISION)

On Wednesday, January 19, 2022

CA/PH/16CR/2018

Before Our Lordships:

Paul Obi Elechi Justice of the Court of Appeal

Ridwan Maiwada Abdullahi Justice of the Court of Appeal

Olabode Abimbola Adegbehingbe Justice of the Court of Appeal

 

Between

ENDURANCE EBEE APPELANT(S)

And

THE STATE RESPONDENT(S)

 

RATIO:

ESSENCE OF AN APPEAL

The essence of an appeal is to have an opportunity to have one’s suit re-examined before a higher or independent panel with a view to convincing such a panel in one’s favour. See Ogunbiyi v. Ishola [1996] 6 NWLR (Pt. 452) 12 at 23. OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A. 

DUTY OF APPELLANT IN AN APPEAL

An appellant is expected to show, on the occasion of his appeal being heard, that based on settled principles, the trial Court failed to observe the principles of law as may be found in decided cases and statute. See University of Calabar v. Esiaga [1997] 4 NWLR (Pt. 502) 719 at 749. OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A. 

WHEN THERE IS NO RESPONDENT’S BRIEF OF ARGUMENT FILED IN AN APPEAL

As in the circumstance, where there is no respondent’s brief of argument filed, the Court stated in the case of Ocean Energy Trading & Services Ltd. v. F. R. N. [2021] 2 NWLR (Pt. 1760) 231 at 241, as follows:
“It is noteworthy that the respondent, albeit having been served with the appellant’s brief of argument, opted not to file a respondent’s brief of argument, in defence of the appeal. That notwithstanding, it is settled law that the appeal does not succeed automatically, without more, as it must be considered and determined on the strength of the appellant’s case, to see whether it will succeed or not.” OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A. 

PURPOSE OF AN APPEAL

In the case of Osuji v. Ekeocha [2009] LPELR-2816(SC), the Court took the view that an appeal is a continuation of the matter before a trial Court and the proceedings in an appeal is by way of re-hearing to enable the appellate Court evaluate the evidence that has been adduced. The purpose of an appeal is to find out whether or not, on the evidence and the applicable law, the trial Court came to a right decision. In the case Abuja Glazing Tech. Ltd. v. Nwajesus & Ors [2021] LPELR-54904(CA), this Court held that a party is not allowed to change the nature of the case on appeal to put up a different case from what he presented at the Court below. See also the case of Fidelity Bank v. The M. T. Tabora & Ors. (2018) LPELR-44504(SC), where the Court stated that an appeal is not a licence to change the course of the dispute or nature or substance but is a continuum from inception of the case from trial to the very end, at the last appeal. OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A. 

POSITION OF LAW WHERE COURT FAILS TO CARRY OUT THAT BASIC FUNCTIONS, AND PROCEEDS TO JUDGMENT

Where a trial Court fails to carry out that basic function, and it proceeds to judgment, leaving out any issue or issues raised by parties, without resolution, a valid case may be made for denial of fair hearing. The judgment of such a Court is a candidate for setting aside, by a superior Court. See the case of Ovunwo v. Woko [2011] 17 NWLR (Pt. 1277) 522. OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A. 

WHEN AN ERROR FOUND IN A JUDGMENT WILL ATTRACT SUCCESS TO AN APPEAL

It should be noted that it is not every slip or error that is found in a judgment that will attract success to such an appeal. It is only when such slip or error is substantial in that it has occasioned a miscarriage of justice that the appellate Court will interfere and the appeal allowed. See Ipinlaye II v. Olukotun [1996] 6 NWLR (Pt. 453) 148 at 174 and Oladele v. Aromolaran II [1996] 6 NWLR (Pt. 453) 180. OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A. 

POSITION OF LAW ON THE ISSUE OF COUNSELING OR PROCURING

In the case of Ude v. State (2012) LPELR-14193(CA), this Court admonished that the law on procuring or counseling is settled and that counseling or procuring must involve some positive act. There must be some active encouragement to those who do the deal. In the case of Ezeadukwa v. Maduka & Anor (1997) LPELR-8062(CA), the Court stated that “to procure” means to contrive to obtain or bring about or bring upon someone and that the noun variant of procurement also carries the connotation of inducement. OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A. 

MEANING OF THE WORD PROCURER OR PROCUREMENT

At page 1224 of the Black’s Law Dictionary (7th Edition), “procurer” is defined as one who induces or prevails upon another to do something. On the same page, “procurement” is defined as the act of getting or obtaining something and the act of persuading or inviting another. OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A. 

DUTY OF THE COURT WHEN AN ISSUE IS NOT PLACED BEFORE IT

“In Chief Frank Ebba v. Washi Ogodo and Anor (1984) 4 S.C. N.L.R 372, my learned brother Eso, J.S.C. remarked at P.385, and I agreed with him, that:
“It should be plain to a Court of Appeal that when an issue is not placed before it, it has no business whatsoever to deal with it. A Court of Appeal is not a knight errand looking for skirmishes all about the place.” OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A. 

DUTY OF COURT WHEN THE STATUTE IS CLEAR AND UNAMBIGUOUS

….the law is that where the provision of a statute is clear and unambiguous, the duty of the Court is to simply interpret the clear provision by giving the plain wordings their ordinary meaning. See Modibbo v. Usman [2020] 3 NWLR (PR. 1712) 470 at 523. OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A. 

DUTY OF COURT WHEN THE STATUTE IS CLEAR AND UNAMBIGUOUS

The duty of the Court is to interpret the words contained in the statute and not to go outside the words in search of an interpretation which is convenient to the Court or to the parties or one of the parties. Even where the provisions of a statute are hard in the sense that they will do some inconvenience to the parties, the Court is bound to interpret the provisions once they are clear and unambiguous. It is not the duty of the Court to remove the chaff from the grain in the process of interpretation of a statute to arrive at favourable terms for the parties, outside the contemplation of the lawmaker. That will amount to travelling outside the statute on a voyage of discovery. This Court cannot embark upon such a journey. See Kassim v. Sadiku [2021] 18 NWLR (Pt. 1807) 123 at 143 and Araka v. Egbue [2003] NWLR (Pt. 848) 1 at 17. OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A. 

OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A. (Delivering the Leading Judgment): The judgment, involved in this appeal, determined a one-count charge against the appellant, which is contained in an information filed on 30/04/2013 (page 2 of the record of appeal). The complaint is as follows:
“STATEMENT OF OFFENCE
PROCUREMENT: contrary to Section 9 of the Rivers State Kidnap (Prohibition) Law No. 3 of 2009.
PARTICULARS OF OFFENCE
ENDURANCE EBEE on the 22nd day of April, 2012 at about 12:00 hours at Deeyor Kira in Tai Local Government Area, in the BORI Judicial Division did procure one Tsaana-Kaa Lesir to arrange kidnappers to kidnap and murder one CHARITY EJIREOBECHU.”

At the trial of the charge, the appellant pleaded not guilty. Three witnesses were called to prove the case of the prosecution. At the prompting of the prosecution, the lower Court permitted the recall of PW 1. The appellant, as defendant, testified for himself and called one other witness.

The case against the appellant, before the lower Court, is that the appellant procured the services of PW 2 – Tsaana-Kaa Lesir – to arrange for kidnappers to kidnap and murder PW3 (Charity Ejireobechu). PW2 reported the instruction of the appellant to the police authorities who detailed PW1 and his police team to pretend to be the kidnappers engaged by PW2, for the purpose of the kidnap of PW3. PW3 was eventually kidnapped in a stage-managed manner, in the presence of the appellant, who showed the “kidnappers” the location of PW3 and identified her. PW3 was “kidnapped” and taken to a police facility. PW2 was present during the simulated process of kidnap of PW3, and rode in the same vehicle, with which the “victim” (PW3) was removed from her location. PW3 was oblivious of the fact that the kidnap was staged or simulated. PW3 was later informed that what she experienced was instigated by the appellant, though her kidnap was not real.

The defence presented by the appellant, at the lower Court, is that she reported a crime committed by PW3 to the police and she went to the abode of the PW3, with policemen, to effect the arrest of PW3. After PW3 was arrested, ‘the police’ made up a story of kidnap, with which the appellant, who was the complainant, became a suspect. She denied any suggestion that she instigated or procured PW 2 to arrange for the kidnap of PW 3. She denied ever knowing PW 2.

At the end of the trial, the lower Court delivered its judgment. This appeal is against the judgment of the Port Harcourt Division of the High Court of Rivers State in Charge No. PHC/919CR/2013, dated 17/02/2016. The judgment was delivered by Justice S. H. Aprioku. The Court found the defendant guilty and sentenced her to a term of imprisonment. Expectedly, the accused person/convict, now appellant, reacted to the attitude of the lower Court, by filing a notice of appeal, on 17/05/2016, containing two grounds of appeal. With leave of Court, the appellant filed an amended notice of appeal on 15/12/2020, with nine grounds of appeal, with some rather strange numbering.

The appellant filed appellant’s brief of argument on 15/12/2020. Despite the fact that the respondent was served with processes in this appeal, the respondent elected not to participate in the hearing of the appeal. The respondent did not even find the need to file a respondent’s brief of argument. The appeal was, therefore, heard on the basis of the appellant’s presentation in the brief of argument, which Ledum Mitee Esq. settled.

The issues found for the determination of the appeal, by appellant’s counsel, are:
“1. Whether the learned trial Judge was right and/or justified in finding the Appellant guilty of “procurement or attempted kidnapping” at the same time?
2. Assuming without conceding that question 1 above is resolved against the Appellant then:
2.1 Whether the learned trial judge was right and/or justified in holding that the Appellant was guilty of procurement to kidnap?
2.2 Whether the learned trial judge was right and/or justified in finding the Appellant guilty of attempted kidnap?”

It is apparent that the appellant’s counsel failed to relate the issues set out above to any ground of appeal. Thus, it is ordinarily impossible for this Court to understand or know which of the nine grounds of appeal was argued or which has been abandoned. It is not the duty of this Court to argue the appeal brought by the appellant on his behalf. However, this Court will not complain. In the case of Ansambe v. B. O. N. Ltd. (2004) LPELR-7432(CA), this Court, per Ogbuagu, JCA. (as he then was) stated:
It is observed by me, that none of the parties or their respective counsel, distilled or related the issues formulated by the appellant (which by implication or inference, was adopted by the respondent who did not formulate its own issues, nor did it state specifically in its brief, that it adopted the said issues of the appellant), from any of the grounds of appeal. The consequences, have been stated and restated in a string of decided authorities. See just recently, Alhaja Adeleke v. Alhaja Raji & Anor (2002) 6 SCNJ 314 at 348; (2002) 13 NWLR (Pt. 783) 142 – per Ejiwunmi, JSC and Mobil Producing Nigeria Unlimited & Anor v. Chief Monokpo & Anor (2003) 18 NWLR (pt. 852) 346, (2003) 12 SCNJ, 206 at 245 – per Tobi, JSC. (both citing several other cases in respect thereof). That is to say, that the said issues, are incompetent. They therefore, will be either deemed abandoned or discountenanced by the Court. The said issue or issues, will be struck out.
I therefore strike out issues i, ii and ii of the appellant.
However, in the interest of justice (as this is the fault of both counsel), I will touch on some of the principles now firmly established as regards the relationship between a master and his servant, whether the employment is subject to statutory or common law.”
In the case of Dada v. Dosunmu (2006) LPELR-909(SC), the Court stated thus:
“My reaction to the issue under consideration is simply that though it is very necessary and desirable for the learned counsel for the appellant to always relate or tie the issues formulated for determination in the appellant’s brief to the grounds of appeal from which the said issues are distilled, failure to do so may not necessarily result in the issues being struck out for being incompetent particularly where in the opinion of the Court, the issues can validly be distilled from the grounds of appeal and in such a situation the Court can on its own take a close look at the grounds of appeal and the issues as formulated and in order to do substantial justice between the parties which is the pre-occupation of the Court, consider the said issues in its judgment in the discharge of its obligation to the parties under the Constitution of this nation. I am a firm believer in the principles of substantial justice at the expense of justice according to technicalities or formality. In certain appropriate cases, the Courts can and in fact do formulate their own issues from the grounds of appeal where the issues formulated by learned counsel for the appellant are found to be either inadequate or grossly or fundamentally defective. It must be noted that the above position is very different from one where the issues formulated for determination do not arise or are not distillable from the grounds of appeal as filed. In that case, the law is long settled that such issues are irrelevant to the appeal and would therefore be discountenanced by the Court. Every issue for determination must be formulated from one or more grounds of appeal and any issue which does not arise from the ground of appeal is incompetent.”
Per Walter Samuel Nkanu Onnoghen, JSC. (as he then was).
(Pp 12 – 14 Paras F – D).
In the decisions cited above, the Courts proceeded to determine the appeal before them, despite the failure of the parties to relate their issues for determination to grounds of appeal filed by the appellant. This Court will follow the path shown in the decisions cited.

For the first issue, learned counsel recalled that the appellant was charged with the offence of procurement to kidnap PW3 – the complainant – contrary to Section 9 of the Rivers State Kidnap (Prohibition) Law, No. 3 of 2009. He pointed out that anyone found guilty of the offence of procurement suffers the same punishment as one who is convicted of the offence of kidnapping, upon conviction, with the same intention, knowledge and purpose. In the view of learned counsel, the section of the law provides for only one mode for the commission of the offence of kidnapping. It is not an exculpatory factor for an accused person to say that he did not personally effect the kidnap, once it is shown that those who did the actual kidnapping were procured by the accused person.

In the view of learned counsel, the section of the statute, under reference, is similar to Section 7(d) of the Criminal Code, which provides that when an offence is committed, any person who procures another to commit the offence may be charged with actually committing it.

He strongly argued that the offence must have been committed for a person to be legitimately charged with procurement of the offence. He referred to the case of Frank Mukoro-Mowoe & Anor. v. The State [1973] All NLR 238, per Fatayi-Williams., JSC., where his Lordship “held that to speak of one person “procuring” another person to commit an offence clearly implies that the offence is later committed.”

He described the offence of “attempt” to commit an offence as an inchoate offence, which means that the acts of the accused person, although sufficiently proximate to the complete offence have not materialized into the complete offence. He cited the cases of Shurumo v. State [2010] 16 NWLR (Pt. 1218) 65, Essien v. State [2016] LPELR – 41179(CA) and Akinosi v. State [2017] LPELR – 42384(CA). He explained that a finding that an accused person is guilty of an attempt to commit an offence, necessarily implies that the Court did not find the offence charged to have been consummated. He relied on the case of Okoro v. State [2012] LPELR – 19793(CA), per Ogunwumiju, JCA. (as he then was). He directed the attention of the Court to page 109 (lines 1-2) of the record of appeal on the finding of the lower Court, which, in the opinion of the learned counsel, implied that PW1 and his team allegedly procured by PW2, who was procured by the appellant, actually committed the offence of kidnapping within the meaning of the law. He referenced lines 19-23 of page 109 of the record of appeal, on the finding of the lower Court, which he complains, amounts to the lower Court treating “procurement” as if it is the same or synonymous with “attempt to kidnap”, which is erroneous. He insists that a finding that the appellant is guilty of procurement to kidnap must necessarily imply a finding that there was, in fact, a kidnap by the persons allegedly procured by the appellant. The Court must find that what took place between PW1 and PW3, on the date in question, was a case of kidnap, for the appellant to be capable of being convicted. He cited the case of Adeosun v. State [1975] 9-11 SC 1 at 10 per Fatayi Williams, JSC (as he then was).

He submitted that there was no finding by the lower Court that what took place between PW1 and PW3 amounted to kidnap within the meaning of the Law. The lower Court found that, except, for divine providence or acts by the police, a kidnap should have taken place. That meant that what took place between the PW1 and PW3 on the date in question did not amount to kidnap, within the meaning of the law. Learned counsel accused the lower Court of indulging “in self-contradiction” when it held, on pages 115-116 of the record of appeal, that the prosecution proved the offence charged, beyond reasonable doubt. He pointed out the conclusion of the lower Court, finding the appellant guilty of procurement “as charged” and attempted kidnap “as charged”, at the same time. In the opinion of learned counsel, it is legally impossible to find the appellant guilty of having committed the offence of procurement (which implies that the offence was consummated) and attempted kidnap (which means that the offence was not consummated). He urged the Court to resolve the question in favour of the appellant.

On the second issue, learned counsel instructed us that the provision of Section 9 of the offence-creating statute, provides for the mode of the commission of the offence of kidnapping. He submitted that the section of the statute did not create a separate offence, as to constitute a distinct charge, for which an accused person could be charged. He complained that the lower Court was in error, when at page 109 of the record of appeal, it held that it was satisfied that the prosecution proved the case of procurement or attempted kidnap beyond reasonable doubt. The impression the lower Court exuded, according to learned counsel, is that attempt is synonymous with procurement. Learned counsel claimed that there was “apparent confusion in the mind of the Court below”, which was prejudicial to the appellant, as it deprived the Court of a compassionate consideration of the essential ingredients of each of these separate legal concepts of procurement and attempt to commit an offence.

Learned counsel argued, in the alternative, that the prosecution failed to prove ingredients of the offence of procurement of the commission of the offence of kidnapping under Section 9 of the Kidnap (Prohibition) Law No. 3 of 2009 under review. He enumerated the ingredients as:
a. The accused procured someone to commit the offence of kidnapping;
b. The offence committed must be the offence under the Law.
He relied on the case of Ogunbodede v. Federal Republic of Nigeria [2018] LPELR – 44883(CA), per Tsammani, JCA, on the offence of procurement of the offence of money laundering.

Learned counsel disagreed with the finding of the lower Court at page 110 of the record of appeal to the effect that the appellant procured PW2 to kidnap PW3. Contrary to that finding, in the view of learned counsel, prosecution’s evidence showed that it was PW2 who procured PW1 and his colleagues, who feigned the kidnap. He insisted that procurement must involve some positive act on behalf of an accused person. He pointed that the appellant did not meet the request for payment by PW2. He stated that what took place, going by evidence adduced by the prosecution, could not have been more “than a proposal by the Appellant to PW2.” The appellant did not have contact with the “feigned kidnappers”, who had contact with PW 2. Learned counsel is astounded that the lower Court found that the appellant procured PW2, in those circumstances. He relied on the case of Fayemi v. A. G. Western Nigeria [1966] 4 NSCC 216, where it was held “that in order for an accused to be guilty of procuring, it must be proved that the people who actually did the act that constituted the offence were those whom the Accused procured to commit it.”

The second limb of the ingredients, in the view of learned counsel is that “the offence committed must be an offence under the law.” He is of opinion that before an offence may be said to have been committed under the section of the statute in issue, it must be shown that the victim of the kidnap would have been taken or abducted, against his will, but that such taking and abduction must also be with the same intention, knowledge and purpose. He pointed at Section 11(a) of the Law, which defines the words “kidnap” and “abduct”, which he believes must be read together with Section 9, to locate ingredients of the offence. He submitted that for the offence of procurement to kidnap to be committed, the taking or abduction must be accompanied either by a demand for ransom or holding for reward. He cited the case of Obaro v. State [2015] LPELR – 40277(CA) where the Court of Appeal interpreted Sections 2 and 3 of the Ondo State Anti-Kidnapping Law, which, he claimed, are in pari materia with Sections 9 and 11(a) of the Rivers State statute. Since there was no evidence of demand for ransom or a holding for reward, learned counsel reasoned and argued that the offence was not committed in this appeal.

It was argued that if what PW1 and his team did could not amount to kidnapping PW3, then, the appellant cannot be said to have committed the offence of procurement. He recalled that, at page 12 of the record of appeal, PW 1 testified on how they acted. He deduced that there was no intention, from the beginning, to do anything other than acting. It was never a kidnap plot. The appellant did not have direct contact with PW1 and his team of kidnap actors. He also recalled, that at page 13 of the record of appeal, the police told PW 3 about the plot by the appellant. He accused the lower Court of failing to evaluate the critical piece of evidence, given by PW1, that PW3 was duly informed that the operation was a hoax. He cited the case of Queen v. Okagbue [1958] NSCC 77 to make the point that it is absurd to find an accused guilty of procuring the commission of an offence, when, in fact, the persons procured did not commit the offence. He accused the lower Court of erring in law in holding the appellant guilty of the offence of procurement to kidnap, contrary to Section 9 of the Law.

On the issue numbered 2.2, the position taken by learned counsel, regarding the particulars of the offence alleged against the appellant, is that he conceded that where a substantive offence is charged, but an attempt of the offence is revealed by evidence, the accused may be convicted of the offence of attempt to commit the offence, though it is not separately charged. He referred to the decision in the case of Agumadu v. Queen [1963] NSCC 153, which decided that where there is surplusage in the particulars stated for an offence, such must be proved, strictly, like other parts of the charge. He insisted that the prosecution had the duty to prove attempted kidnap and attempted murder of PW3. He submitted that there was no evidence that PW1 and his team had the intention to kidnap or murder PW3. He complained about the holding of the lower Court, which concluded that the fact that the persons procured turned out be policemen was immaterial.

He explained that the lower Court, in its judgment, interchangeably, referred to PW1 and his team as “kidnappers” or “disguised kidnappers” as the lower Court could not make up its mind, whether what took place between PW1 and PW3 was a kidnap. He went further to submit that if what took place is/was a kidnap, then the issue of attempted kidnap would not arise. He stated that an attempt to kidnap would only arise if there was a finding that the kidnap process could not be consummated. He explained that the evidence showed that at no time did either PW1 and PW2 form the intention to commit any offence, what more, kidnapping and murder, as what took place could not be said to be commission of an offence.

Learned counsel reviewed the testimony of PW 2 and Exhibit D, on discussion about payments, which took place on 22/04/2012, recorded at page 13 of the record of appeal, which formed the substratum of the charge. He insisted that there was no agreement concluded between the appellant and PW2, by the time PW1 and his team mobilized. He referred to Exhibit A, which the lower Court found to be confessional, which also showed that an agreement had not been reached, as at 22/04/2012. In paragraph 6.12 of his presentation, learned counsel submitted thus:
“… At worst, we submit that the Appellant merely expressed her intention to the PW2 which he then ran away with and involved the PW1 and his team.”

He narrated that it is trite law that in every crime, there is first intention to commit it, secondly, preparation to commit it and thirdly, attempt to commit. See Sanni v. State [1993] 4 NWLR (Pt. 285) 99 at 119. At paragraph 6.15 of his presentation, learned counsel stated thus:
“6.15 Applying the above test to the facts of this case, the question would be whether if what took place between the Appellant and the PW2 on the crucial date of 24/2/2012 were such that, if the Appellant changed her mind and does not proceed with the proposal, would be completely harmless or if not prevented by an extraneous cause, would have fruitified into commission of the offence of kidnapping and murder of PW3? In answering this question, we would need to reiterate our earlier submission that what happened between the Appellant and PW2 did not proceed past what could, at worst, be termed a proposal, not a firm agreement.”

Learned counsel further stated that the action of the appellant had not crossed the threshold of intention and preparation to the realm of attempt. Curiously, learned counsel further argued:
“… After all the evidence before the Court shows that Appellant had contacted another person before PW 2 with similar proposal and because no agreement was reached nothing happened.”

Learned counsel took the view that the plan was aborted, after the conversation between PW2 and the appellant, but PW1 decided to stage a false kidnap. The fact that the appellant was made to play some role in the “play acting” is not sufficient to imbue the appellant with culpability. He insisted that the appellant was just one character in the “play acting”.

He is of the view that appellant’s following PW1 and PW2, to PW3’s premises, on the date of the staged kidnap will not be sufficient to justify the finding that the appellant attempted to kidnap and murder PW3. He explained that the charge is based on what took place between the appellant and PW2 on 24/02/2012, whereas the staged kidnap took place on 07/05/2012. Exhibit A (appellant’s statement) was made on 07/05/2012, while Exhibit D, PW 2’s statement, was made three days after Exhibit A was made, whereas Exhibit A is supposed to be the basis of the investigation. PW2, yet, swore on oath that Exhibit D was the only statement he made to the police, at page 15 of the record of appeal.

Learned counsel submitted that there was no proof of the ‘attempt to murder’ element in the charge and it was erroneous to have found the appellant guilty of same. He pleaded that the bar of proof should not be lowered, as people in fits of anger, threaten each other. It will be ridiculous to convict the makers of such mere statements, not backed by acts that are proximate enough to murder. He urged that the issue should be resolved in favour of the appellant.

He urged the Court to allow the appeal and set aside the conviction and sentence of the appellant, who should be discharged and acquitted of the offence charged.

DETERMINATION OF THE APPEAL
Absence of the respondent
The essence of an appeal is to have an opportunity to have one’s suit re-examined before a higher or independent panel with a view to convincing such a panel in one’s favour. See Ogunbiyi v. Ishola [1996] 6 NWLR (Pt. 452) 12 at 23.

An appellant is expected to show, on the occasion of his appeal being heard, that based on settled principles, the trial Court failed to observe the principles of law as may be found in decided cases and statute. See University of Calabar v. Esiaga [1997] 4 NWLR (Pt. 502) 719 at 749.

As already indicated above, the respondent abstained from participating in the determination of the appeal. As in the circumstance, where there is no respondent’s brief of argument filed, the Court stated in the case of Ocean Energy Trading & Services Ltd. v. F. R. N. [2021] 2 NWLR (Pt. 1760) 231 at 241, as follows:
“It is noteworthy that the respondent, albeit having been served with the appellant’s brief of argument, opted not to file a respondent’s brief of argument, in defence of the appeal. That notwithstanding, it is settled law that the appeal does not succeed automatically, without more, as it must be considered and determined on the strength of the appellant’s case, to see whether it will succeed or not.”

This appeal is capable of being and will be determined, in the absence of the respondent.

Need for consistency of evidence at the lower Court and evidence relied upon on appeal
One important feature in the narration of facts, embarked upon by the appellant’s counsel, in this appeal, is the fact that learned counsel, simply, abandoned the defence set up at the trial and created another defence in this appeal. While the appellant, at the trial, denied any suggestion of involvement in any scheme of kidnap, appellant’s counsel, in this appeal, has sought to state that though the appellant initiated a scheme of kidnap, with PW3 as its target, the appellant did not follow through and no agreement was reached between the appellant and PW2. Learned counsel also stated, in argument, that the agreement to kidnap PW3 could not be solidified because the appellant did not pay the consideration demanded by PW2 for the act to be carried out. In all of these, the facts relied upon by the appellant in argument of the appeal are alien to the record of appeal. It is therefore not surprising that the appellant’s counsel did not refer to any page of the record of appeal to justify the facts he freely mentioned. Those facts do not exist on the record of appeal. No such evidence was given by the witnesses, including the appellant, who testified at the trial.
In the case of Osuji v. Ekeocha [2009] LPELR-2816(SC), the Court took the view that an appeal is a continuation of the matter before a trial Court and the proceedings in an appeal is by way of re-hearing to enable the appellate Court evaluate the evidence that has been adduced. The purpose of an appeal is to find out whether or not, on the evidence and the applicable law, the trial Court came to a right decision. In the case Abuja Glazing Tech. Ltd. v. Nwajesus & Ors [2021] LPELR-54904(CA), this Court held that a party is not allowed to change the nature of the case on appeal to put up a different case from what he presented at the Court below. See also the case of Fidelity Bank v. The M. T. Tabora & Ors. (2018) LPELR-44504(SC), where the Court stated that an appeal is not a licence to change the course of the dispute or nature or substance but is a continuum from inception of the case from trial to the very end, at the last appeal.
There is no way this Court may proceed with the determination of this appeal, based on the simulated facts strewn all over the brief of argument of the appellant, in clear deviation from the evidence before the lower Court.

For example, at page 36 of the record of appeal, the evidence of the appellant (as accused person) was, as follows:
“I do not know the PW 2 before now. I saw him for the first time in this Court. I can remember the 7/5/2012. On that 7th of May, 2012, I went to S. O. S. at Port Harcourt to arrest charity Ejirobechim, the PW3 for invoking juju, and packing sand under my slippers and threat to my life. I went to S. O. S. Office at about 11am to lodge the complaint against PW 3.
The Police demanded the sum of N5, 000.00 to buy fuel for their vehicle and I gave them and we went to Eleme, to the house of PW3 to arrest her. We got to PW3’s house at about 5pm, as we got there, PW3 was outside splitting firewood for cooking. The police asked me whether she is the person and I said yes and they arrested PW3 and put her inside the bus. I was outside the vehicle and it was me that pointed out her, the PW3, to the police for them to effect the arrest of PW3.
When PW3 was arrested we went back to S. O. S. Office, while PW3 was detained, the police asked me to go and come back, on 8/05/2012. I went back on 8/05/2012 and met the husband of Charity and Mr. Frank, a policeman. The police now gave me a written statement to sign and I signed the statement. After I signed, the policeman asked me to wait and two policemen came while I was waiting and one of them asked me to follow him. I followed him and he locked me inside the cell for a period of one month. The police took me to Court on 4/06/2012 and sent me to prison.”

When the appellant continued his testimony, at page 38 of the record of appeal, she testified thus:
“I went to Chief William to report, but he advised I should go to Eleme Police Station and I went and reported but the people said: we should go and settle it as family. So I called my husband, who was at Warri, and he said I should go to S. O. S. or State CID Port Harcourt to report, so that Charity will take us to the place they invoked the juju, so I came to S. O. S. office to report. Instead of the police to do the right thing, they now forge this case against me.”

The appellant has completely, unjustly, unlawfully altered the evidence or defence led before the lower Court, in this appeal. Now, appellant’s counsel appears to have argued that though the appellant initiated conversations about a kidnap of PW3, with PW 2 (who the appellant denied ever knowing before the lower Court), a solid agreement was not agreed upon. It will amount to intellectual wickedness for this Court to rely on the facts or evidence presented by the appellant’s counsel, in argument of the appeal, to determine the appeal. This Court is not intellectually wicked. Those facts are hereby rejected and discountenanced.

This Court must jealously guard the judicial process from being ridiculed and scandalized. Once a Court is satisfied that processes before it are an abuse of its processes and orders, which in effect is a direct challenge to its integrity, it should with all urgency exercise its inherent jurisdiction and dismiss the abusive action or process. See Ezenwo v. Festus (No. 1) [2020] 16 NWLR (Pt. 1750) 324 at 341. Abuse of process of Court simply means that the process of Court has not been used bona-fide and properly. See Ikine v. Edjerode [2001] 18 NWLR (Pt 745) 446 at 479. In the circumstance, as this Court is not capable of editing the facts presented in argument of the appeal, this Court will discountenance the erroneous facts relied upon by the appellant’s counsel. See Ekpo & Anor v. Oqua (2021) LPELR-55854(CA). For the reason stated above, this appeal is a good candidate for dismissal.

Issues numbered 1 and 2.2 by the appellant – Correctable error of the lower Court
As this Court is the penultimate Court of the land, it is apt that a record is made of its views on the appeal brought to it, despite the shenanigans of the appellant. The respondent’s (prosecution) counsel, at page 70 of the record of appeal, raised first and third issues for determination of the suit before the lower Court, in its final written address, as follows:
“1. Whether the prosecution has proved beyond reasonable doubt that the accused procured PW2 to arrange for the kidnap of PW3 (Mrs. Charity Ejireobechu).

3. Whether in a charge of procuring another to kidnap, the Court can convict accused person of attempt to kidnap being a lesser offence if it is proved beyond reasonable doubt.”

At page 75 of the record of appeal, respondent’s counsel, in argument of the third issue, in appellant’s final written address, submitted that:
“In addition, assuming without conceding that the case of procurement of PW1 by accused person has not been established the joint actions of the accused person, PW2 and the policemen whom accused persons believed were kidnappers credibly supports or establishes the fact that the accused person attempted to kidnap PW3 and also by herself jointly with police officers and PW3 attempted to kidnap though in the scenario, the police officers are in law agents provocatua, the conviction of whom the prosecution in this case is not required by law to first ensure before the accused person can be convicted.”
My lord can safely convict the accused person on a lesser offence proved by the evidence adduced by the  prosecution.” At page 87 of the record, the appellant’s counsel submitted, in the reply written address, in response to the argument quoted above, that:
“Under issue 3 on pages 13 and 14 of the prosecution’s final written address, it was submitted that this Honourable Court can safely convict the accused person on a purported lesser offence of attempt to kidnap on the alleged ground that the evidence adduced by the prosecution proves the alleged lesser offence of attempt to kidnap.
We contend that the said submission is grossly misconceived and erroneous because the evidence led by the prosecution did not prove attempt to kidnap.”

It was under the circumstances of the exchange between learned counsel for the parties that the lower Court embarked upon the process to make findings on both offences of procurement and attempt to kidnap, as argued by parties before it. A trial Court is obliged to resolve all issues placed before it by parties. Where a trial Court fails to carry out that basic function, and it proceeds to judgment, leaving out any issue or issues raised by parties, without resolution, a valid case may be made for denial of fair hearing. The judgment of such a Court is a candidate for setting aside, by a superior Court. See the case of Ovunwo v. Woko [2011] 17 NWLR (Pt. 1277) 522. Upon evaluation of the evidence before it, the lower Court found that the prosecution proved both the offence of procurement and that of attempt to kidnap. The lower Court did not do more than that. What the lower Court stated, in its judgment, at the point of conviction of the appellant, at page 115 of the record of appeal, is:
“I am of the humble view that the accused procured the services of Tsaana-Kaa Lesir to kidnap Charity Ejireobechu and therefore, accused is found guilty of the offence of attempted kidnap as charged.”

There was nowhere in the judgment of the lower Court where that Court found the appellant guilty of two offences, as claimed by the appellant in this appeal, in his first issue. The only offence, which the lower Court found the appellant found guilty of, is attempted kidnap. There was no finding on the guilt of the appellant, with respect to the offence of procurement, though the lower Court found, as fact, that the prosecution proved the ingredients of the offence. As it may be observed, the appellant was actually charged with the offence of procurement of PW2 to arrange the commission of the offence of kidnap and murder of PW3, but the appellant was convicted for the offence of attempted kidnap by the lower Court.

Reading the judgment of the lower Court, especially at the point at which the appellant was convicted for the offence of attempted kidnap, it is apparent that the lower Court had found that the prosecution proved its case “as charged”, which implies the charge of procurement of PW 2 to arrange for the kidnap of PW 3 for the purpose of PW 3 being murdered. Thereafter, the lower Court committed an error, in recording that the appellant was convicted for an offence, which was not the one charged before it. At pages 114-115 of the record of appeal, the lower Court stated, thus:
“The accused person in her state of mind was happy at that time as her instructions were being carried out because her intention to kidnap PW3 was being actualized and the instructions successfully carried out. That her instruction was carried out by agent provocateur does not derogate from the offence being committed. The evidence of PW1 who acted as agent provocateur was corroborated by the evidence of PW2, PW3 and the confessional statement of the accused. The Prosecution established beyond reasonable doubt that accused committed the offence as charged. I am of the humble view that the accused procured the services of Tsaana-Kaa Lesir to kidnap Charity Ejireobechu and therefore, accused is found guilty of the offence of attempted kidnap as charged.
Sentence: The offence of kidnap or plot to kidnap innocent persons has been very prevalent in Rivers State, since the year 2007. In spite of the enactment of the Rivers State Kidnap (Prohibition) Law No. 3 of 2009, which carries a punishment of life imprisonment or 20 years for persons found guilty, the cases of kidnap in the State are now more prevalent and in fact, on a daily basis. To act as a deterrent to persons plotting and actually participating in kidnapping innocent persons, the full weight of the law should be applied and enforced as to discourage persons from getting involved or participating in the kidnap of innocent and law-abiding citizens.
The accused in this case, be and is hereby sentenced to ten years imprisonment with Hard labour, and without option of fine.”

In my view, this is a correctable human error, because, the lower Court had showed clearly where it was headed with its judgment. That is, it was going to convict for the offence charged, which is procurement. Recording the offence as attempted kidnap, is an apparent human error, which does not affect the substance of the judgment of the lower Court. It should be noted that it is not every slip or error that is found in a judgment that will attract success to such an appeal. It is only when such slip or error is substantial in that it has occasioned a miscarriage of justice that the appellate Court will interfere and the appeal allowed. See Ipinlaye II v. Olukotun [1996] 6 NWLR (Pt. 453) 148 at 174 and Oladele v. Aromolaran II [1996] 6 NWLR (Pt. 453) 180. The error in the judgment of the lower Court is not substantial because all necessary ingredients for conviction of the appellant are present in that judgment, except in the recording of the particular offence for which the appellant was convicted, which, as charged, is procurement of PW2 to arrange the kidnap of PW3. Order 4 Rules 3-4 of the Court of Appeal Rules, 2021, provides as follows:
“3. The Court shall have power to draw inferences of fact and to give judgment and make any order, which ought to have been given or made, and to make such further or other order(s) as the case may require including any order as to costs.
4. The powers of the Court under the foregoing provisions of this rule may be exercised notwithstanding that no notice of appeal or Respondent’s notice has been given in respect of any particular part of the decision of the lower Court, or by any particular party to the proceedings in that Court, or that any ground for allowing the appeal or for affirming or varying the decision of that Court is not specified in such notice and the Court may make any order, on such terms as the Court thinks just, to ensure the determination of the merits of the real question in controversy between the parties.”
Order 7 Rule 5 of the same rules provides:
“5. Notwithstanding the foregoing provisions, the Court in deciding the appeal shall not be confined to the grounds set forth by the Appellant provided that the Court shall not if it allows the appeal, rest its decision on any ground not set forth by the Appellant unless the Respondent has had sufficient opportunity of contesting the case on that ground.”
Order 23 Rule 11 of the Court of Appeal Rules, 2021 provides:
“11. (1) The Court shall have power to give any judgment or make any order that ought to have been made and to make such further order(s) as the case may require including order as to costs.
(2) The powers contained in Sub-rule (1) of this Rule may be exercised by the Court, notwithstanding that the Appellant may have asked that part only of a decision may be reversed or varied, and may also be exercised in favour of all or any of the Respondents or parties, although such Respondent or parties may not have appealed from or complained of the decision.”
As it is vividly provided, in the provisions highlighted above, this Court is empowered to do what the lower Court ought to have done, which is to properly record the offence for which the lower Court intended to find the appellant guilty, which is the offence of procurement of PW2 for the purpose of arranging the kidnap of PW3 and her murder, contrary to Section 9 of the Kidnap (Prohibition) Law, No. 3 of Rivers State, 2009, which is the charge before the lower Court. That is the pronouncement of this Court, in replacement of the order of conviction for attempted kidnap, pronounced by the lower Court. See Sections 15 and 20(1) and 2 of the Court of Appeal Act, 1976 (as amended).

Issue 1 and 2.2 are resolved against the appellant.

Resolving issue numbered 2.1 by the appellant
The appellant was charged with the offence of procuring PW2 to arrange the kidnap and murder of PW3, under Section 9 of the Kidnap (Prohibition) Law, No. 3, 2009 of Rivers State, which provides as follows:
“9. A person who procures, counsels, engages, gives information for the purposes of kidnapping or abducting or by any other means of instilling fear, takes another person to another place against his will, commits an offence, and is liable on conviction to the same punishment, as if he or she committed the act of kidnapping or abduction with the same intention, knowledge and purpose.”
The ingredients of the offence of procurement created in the provision quoted above, in my view, are:
a. The defendant in the trial must be a person known to law.
b. The defendant must have taken active steps to procure or acquire or secure resources (human and/or material).
c. The resources (human and/or material) procured must be for purpose of kidnapping or abducting or instilling fear in another person.
In the case of Ude v. State (2012) LPELR-14193(CA), this Court admonished that the law on procuring or counseling is settled and that counseling or procuring must involve some positive act. There must be some active encouragement to those who do the deal. In the case of Ezeadukwa v. Maduka & Anor (1997) LPELR-8062(CA), the Court stated that “to procure” means to contrive to obtain or bring about or bring upon someone and that the noun variant of procurement also carries the connotation of inducement. At page 1224 of the Black’s Law Dictionary (7th Edition), “procurer” is defined as one who induces or prevails upon another to do something. On the same page, “procurement” is defined as the act of getting or obtaining something and the act of persuading or inviting another.

In soliciting the assistance, and believing that she had secured the assistance, of PW2 for the purpose of the kidnap of PW3, the appellant thereby procured the assistance or help of PW2, which is the exact conduct, which the statute under reference seeks to prevent and punish. The idea of seeking the help of PW2, when it was formulated, is the mens rea, of the offence. The fact that the appellant physically made a suggestion of her desire for help by PW 2, in her scheme to kidnap PW 3, is the acts reus of the offence of procurement for the offence of kidnap. In my view, the offence of procurement was completely committed by the transaction between PW 2 and the appellant. The appellant’s persistence that the kidnap should take place, with PW 2 arranging the “boys” who will carry out the act, was merely confirming the desperation of the appellant to commit the offence charged, and all the guilt is that of the appellant. The appellant (in his statement to the police – Exhibit A) and his counsel (in his submission in the appellant’s brief of argument, quoted above) admitted that the offer to kidnap PW3 was once, unsuccessfully, made to another person by the appellant, before PW 2 was approached. There is no better proof of the determination of the appellant to rely on resources, which she actively sought to procure, to achieve her purpose of ensuring that PW 3 was kidnapped. The appellant approached PW2 and expressed her desire that PW 2 should arrange for persons who will kidnap PW3, for ransom (to be received from PW3’s husband) and later murder PW 3. At pages 13-14 of the record of appeal, PW2 (Tsaana-kaa Lessor (Lesir) – named in the charge) testified about his services being procured by the appellant, as follows:
“On 15/4/2012, accused called me on phone and that he has something for me. On the agreed date, she came in the company of one Sunny, a co-student to the accused. We met in the beer parlor at Kegbara Kira. Sunny introduced himself as a maternal relation to me. Sunny told me that he is a friend to the accused and that accused has suffered in the hands of Charity. That they need her kidnapped and take money from the husband and kill her. …
I asked Sunny, why he came to me. Sunny said, since I am in school, I may know the boys that can kidnap and kill Charity. Accused promised to pay any price but I said let me contact the boys and name a price. I now quickly contacted S. O. S. and explained everything on phone to the S. O. S. commander, who requested that I should come to the office. I went to S. O. S. office and after I explained everything, he handed me over to his second-in-command. At that time, there was so much kidnapping in the state at that time. After I reported to S. O. S., she kept calling be on phone as to how I have arranged. So I went back to the S. O. S, and at the S. O. S. the police asked me to call the accused. I called her and informed her that the kidnapping will take place that night. Accused then suggested that she has a brother, who is an ex-military man and that he was ready to show us the place. Later when she discovered that, the operation was getting late, she came out by herself and we called her that we were on her way coming from Port Harcourt with a white bus. We met the accused at Alode Junction by Farm Road, and it was there accused joined us and took us to the house of the woman. When we got there, inside the compound, the woman was cooking in a small hut and she identified her, and the team of the policemen now came down and got the woman into the Bus, with the accused also in the Bus. We drove back to S. O. S, where he accused was interrogated.”

In a part of the appellant’s extra-judicial statement, made to the police, which was tendered without objection, as Exhibit A, the appellant stated thus:
So since 2009 we don’t talk to each other neither greet each other. But this year 2012, I made up my mind to deal with them, since they don’t want to accept the responsibility of killing my children, then in month of March, I can’t remember the date I decided to go to Ogoni Semen village where I met one young man, I don’t know his name, he told me to bring N20,000 i.e. Twenty Thousand Naira to kidnap Alale, but I told him I don’t have any money and left him. Meanwhile, our decision took place on the road because he refused to take me to his house. Then I decided to contact another person who will help me kidnap her and I met one guy at Kira village in Tai Local Government Area and we discuss and plan how to kidnap her, then he told me to bring the sum of Fifty Thousand Naira N50,000, but I told him I had no money, and he said I should then bring Thirty Thousand N30,000, which I also decline and told him I have no money, that he should help me. And we started communicating on phone, till today when police now came with Hummber Bus with Reg. RV ……. white in colour and pretended to be kidnappers and kidnapped her and also arrested me.”

The evidence of PW1, who led a team of policemen, acting as kidnappers, under the direction of the appellant, was not challenged at the trial and the lower Court was right to have treated it as corroborative of the prosecution’s case against the appellant. There is no further fact that is needed to prove procurement.

What later transpired, with the appellant physically and personally leading PW1 and his armed team and PW2, to the home of PW3, from where PW3 was whisked away or abducted, in the presence of the appellant, is merely proof, of the aspect of proof “beyond reasonable doubt”, which is to confirm that the appellant desired the result of her procuring of PW 2, to arrange for the offence of kidnap and murder to be committed. At that point, all doubts were removed about the intention, motive and determination of the appellant in procuring PW2 to make arrangements for the offence of kidnap and murder of PW3 be committed. The appellant’s presence at the scene, where PW3 was accosted and taken away (as if in a kidnap), while the appellant was encouraging and directing the act of abduction or kidnap of PW3, confirmed her desire to commit the offence, through other persons, she believed she had procured for that purpose. The lower Court was, therefore, justified in convicting the appellant for procuring PW 2 to arrange for the kidnap and murder of PW 3, going by the evidence of PW2, PW1 and the confession of the appellant herself, as appropriately found by the lower Court, in the portions of its judgment quoted above. PW2 testified that the appellant asked him to arrange for people to kidnap and murder PW3. The lower Court was justified in holding that the appellant was guilty, as charged, in its judgment on appeal before us.

To understand the purport of Section 9 of the offence-creating statute in this appeal, the law is that where the provision of a statute is clear and unambiguous, the duty of the Court is to simply interpret the clear provision by giving the plain wordings their ordinary meaning. See Modibbo v. Usman [2020] 3 NWLR (PR. 1712) 470 at 523. The duty of the Court is to interpret the words contained in the statute and not to go outside the words in search of an interpretation which is convenient to the Court or to the parties or one of the parties. Even where the provisions of a statute are hard in the sense that they will do some inconvenience to the parties, the Court is bound to interpret the provisions once they are clear and unambiguous. It is not the duty of the Court to remove the chaff from the grain in the process of interpretation of a statute to arrive at favourable terms for the parties, outside the contemplation of the lawmaker. That will amount to travelling outside the statute on a voyage of discovery. This Court cannot embark upon such a journey. See Kassim v. Sadiku [2021] 18 NWLR (Pt. 1807) 123 at 143 and Araka v. Egbue [2003] NWLR (Pt. 848) 1 at 17.

The appellant’s counsel has argued that when a person is accused of procuring the commission of an offence under the statute, such a person could not be found guilty or convicted unless it is proved that the offence had been committed. It is my view that appellant’s counsel’s suggestion is not a welcome interpretation of the, otherwise, clear provisions of the Section 9 of the Kidnap (Prohibition) Law No. 3 of 2009. For an offence created under the named statute, regarding kidnap and other associated offences, such a potentially ruinous interpretation should not be suggested or even countenanced by the Courts, with due respect. Punishing for procurement to commit an offence under the Kidnap (Prohibition) Law, No. 3 of 2009 is, implicitly, intended to prevent the commission of the offence, such that a person should be punished for conceiving the idea of committing an offence and taking further active steps with a view to committing the offence, while seeking the participation of others or other resources in his untoward scheme. To leave conviction and punishment, for the offence of procurement, until after the actual commission of the offence is to leave matters until they degenerate to the level of avoidable pain and/or death of victims or targets of the nefarious acts. The clear intendment of the law maker is that procurement to commit the offence of kidnap should be sufficient to attract punishment. The statute itself did not make any further provision in Section 9 of the statute and this Court cannot, under the guise of exercising its interpretative jurisdiction, insert what is not in the provision, into it. Once a person is proved to have taken steps to cause the kidnap of another by procuring resources, human and material, directed at achieving the unlawful purpose, the law should be allowed to take its course and ensnare the ambition of the potential kidnapper and incapacitate him, using the instruments of the law.
That is the only effective manner of ensuring that the commission of the offence of kidnap, after procurement of resources for the purpose, under Section 9 of the Kidnap (Prohibition) Law No. 3 of 2009, is prevented. The decided cases, cited by the appellant’s counsel – like Queen v. Okagbue [1958] NSCC 77, Frank Mukoro-Mowoe & Anor v. The State [1973] All NLR 238 and Adeosun v. State [1975] 9-11 SC 1 at 10 etc. – were determined, based on statutes whose purpose and direction are different from the Kidnap (Prohibition) Law, No. 3 of 2009, which is the relevant statute for this appeal. The case of Obaro v. State [2015] LPELR – 40277(CA) does not support the postulations of learned counsel for the appellant. Those cases are, therefore, not applicable to this appeal. For conviction for the offence of procurement to commit an offence under the Kidnap (Prohibition) Law, No. 3, of Rivers State, 2009, the actual offence of kidnap or abduction does not need to have been committed for a person who procures commission of the offence to be found guilty and convicted by the Court. Each case has to be determined on the basis of the peculiar facts it throws up.

It is my view that the lower Court was right or correct in convicting the appellant on the sole charge preferred against him, as the prosecution, indeed, proved its case beyond reasonable doubt and, as charged.

CONCLUSION
Except for the adjustment (correction) of the order of conviction made by the lower Court, which has been made by this Court, there is no merit in this appeal, especially, because there is no appeal against the sentence imposed on the appellant. In the case of Oteki v. A. G. Bendel State [1986] LPELR – 2823(SC), the Court directed that:
“In Chief Frank Ebba v. Washi Ogodo and Anor (1984) 4 S.C. N.L.R 372, my learned brother Eso, J.S.C. remarked at P.385, and I agreed with him, that:
“It should be plain to a Court of Appeal that when an issue is not placed before it, it has no business whatsoever to deal with it. A Court of Appeal is not a knight errand looking for skirmishes all about the place.”
It follows therefore, that when counsel for the appellant says in a case that he has nothing to urge, it is not the duty of an appeal Court as such to examine the record of the proceedings in the lower Court in order to see if there is any point in favour of the appellant or which will sustain the appeal before it could dismiss it. However there may be occasions when the appeal Court may in its own discretion, but not as a duty, raise a point suo motu for clarification even if nothing were urged upon it. But counsel cannot be heard to complain, as in the present case, that the appeal Court is in error for not doing what was not urged upon it. The argument in such appeal ought to be refused by this Court in the light of our decision in Ejiofodomi v. Okonkwo (1982) 11 S.C. 74.” Per UWAIS, J.S.C (PP. 7-8 paras. B-B).
Specifically, in the case of Chibuzor v. FRN (2017) LPELR 41852(CA), this Court stated that:
“A ground of appeal on sentence alone and an issue formulated therefrom, cannot be used to attack or challenge the conviction of the Appellant since conviction for an offence and the subsequent sentence for the said offence, are governed by separate, different and distinct factors and principles of law. An Appellant who only appeals against the sentence imposed on him after the conviction for an offence he was charged with and/or tried, is presumed to have conceded and accepted the conviction upon which the sentence he complains about, was based. He cannot be heard and permitted to use an appeal against the sentence to challenge the conviction in respect of which he did not file a ground of appeal. See Mohammed vs. Olawunmi (1993) 4 NWLR (287) 254 AT 278 and 287. per GARBA, JCA. (Pp. 10-11 paras. F).

The judgment of the lower Court in suit no. PHC/919CR/2013 is affirmed, save that the appellant is herein appropriately convicted for the offence charged, procurement, as ordered above. This appeal is hereby dismissed.

PAUL OBI ELECHI, J.C.A.: I have read in draft the lead judgment delivered by my learned brother, Olabode Abimbola Adegbehingbe, JCA.

I am in complete agreement with my Lord’s reasoning and conclusion. I adopt the lead judgment as mine and so, I have nothing to add.
Appeal dismissed.

RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have had the privilege of reading in draft the lead judgment just delivered by my learned brother, Olabode Abimbola Adegbehingbe, JCA.

The reasoning and conclusion of the lead judgment is agreed by me. The judgment of the lower Court is affirmed as done in the lead judgment.

The appeal is therefore dismissed for lacking in merit.

Appearances:

O. Awari, Esq. For Appellant(s)

The respondent counsel was served but absent For Respondent(s)