EBIERIM ONIANWA v. THE STATE (2015)

EBIERIM ONIANWA v. THE STATE

(2015)LCN/7784(CA)

In The Court of Appeal of Nigeria

On Friday, the 13th day of February, 2015

CA/B/260C/2014

RATIO

EVIDENCE: CONFESSIONAL STATEMENT; THE ADMISSIBILITY OF A CONFESSIONAL STATEMENT

However there is still the appellant’s unchallenged evidence that he was tortured in order to extract a confession from him. See SABURI ADEBAYO V. ATT. GEN. OGUN STATE (2008) 7 NWLR (Pt.1085) 201.
“The law is that a trial judge can admit a confessional statement if it was made voluntarily and without any inducement, threat or promise from a person in authority.”
The question here is: did the appellant make the confessional statement voluntarily? This can be deduced from the admission of Ojugbana in Exhibit 5 and the wounds and scars on the body of the appellant shown in Court at the trial within trial. There is also the undisputable fact that a co-accused died in police custody which, to my mind, completely destabilized the appellant inducing him to make the confessional statement to avoid further torture by the police.
I shall however conclude by citing the case of SOLOLA V. STATE (2005) 12 NWLR (Pt.937) 460 where the Supreme Court held as follows:
the realm of guilt and non-guilt, or wayward, a trial judge will not convict the accused but give him the benefit of doubt.”
See also S. 34(1) of the 1999 Constitution which states as follows:
(a) “No person shall be subject to torture or to inhuman or Degrading treatment”. per. PHILOMENA MBUA EKPE, J.C.A.

CRIMINAL LAW: THE OFFENCE OF KIDNAPPING; THE DEFINITION OF THE OFFENCE OF KIDNAPPING AND THE CONDITIONS THAT MUST BE FULFILLED IN ORDER TO ESTABLISH A CASE OF KIDNAPPING AGAINST AN ACCUSED PERSON

The offence of kidnapping has been clearly defined in S.364 of the Criminal Code Cap C21 Vol. 1 Laws of Delta State 2006 which necessitates the fulfilling of the following conditions in order to establish a case of kidnapping against an accused person:
1. That the victim was seized, taken away or carried away by the accused person;
2. That the victim was taken without his consent;
3. That the victim was taken without lawful excuse; and
4. That the victim was unlawfully detained or taken away. per. PHILOMENA MBUA EKPE, J.C.A.

CRIMINAL LAW: CONSPIRACY THE ELEMENT OF THE OFFENCE OF CONSPIRACY THAT MUST BE DETERMINED AND WHAT THE COURT CONSIDERS TO INFER OR PRESUME CONSPIRACY

For Conspiracy to be successfully proved, the following elements of the offence must be determined:
1. An agreement by one or two persons to execute an agreed act.
2. The act must be unlawful.
See AITUMA V. STATE (2005) ALL FWLR (Pt.318) 671 at 684. Where persons are charged with Criminal Conspiracy, it is more often than not required that the conspiracy as laid in the charge be proved and also that the person or persons charged must be proved to have been engaged in it. On the other hand, since it is not always easy to prove the actual agreement, Courts usually consider it sufficient if it is established by evidence the circumstances from which the Court could consider it safe and reasonable to infer or presume the Conspiracy. See DABOH & ORS V. THE STATE (1977) 5 SC 122 per Udo Udoma, JSC. per. PHILOMENA MBUA EKPE, J.C.A.

JUSTICES

PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria

HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria

UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria

Between

EBIERIM ONIANWA Appellant(s)

AND

THE STATE Respondent(s)

PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment): This appeal emanates from the judgment of the Delta State High Court Asaba Judicial Division delivered by Hon. Justice M.O. Omovie on the 27th day of March, 2014. The judgment is predicated on a confessional statement made by the appellant on which the lower Court convicted and sentenced him to a term of imprisonment for the offences of Conspiracy to commit Kidnapping and Kidnapping.

The appellant was arraigned before the lower Court on a five count charge as follows:

COUNT 1
EBIERIM ONINAWA (M) on or about the 31st day of January, 2012, at Kilometre 3, Ibusa/Asaba Expressway, in the Asaba Judicial Division conspired with others now at large to commit a felony to wit: Kidnapping

COUNT II
EBIERIM ONINAWA (M) on or about the 31st day of January, 2012, at Kilometre 3, Ibusa/Asaba Expressway, in the Asaba Judicial Division, unlawfully imprisoned or detained Philip Okocha for four (4) days against his will.

COUNT III
EBIERIM ONINAWA (M) on or about the 31st day of January, 2012, at Kilometre 3, lbusa/Asaba Expressway, in the Asaba Judicial Division with intent to steal, demanded the sum of One Hundred Million Naira (N100,000,000.00) cash from Phillip Okocha with threats to kill him if the said demand was not complied with.

COUNT IV
EBIERIM ONINAWA (M) on or about the 31st day of January, 2012, at Kilometre 3, lbusa/Asaba expressway, in the Asaba Judicial Division, stole the sum of Five Million Naira (N5,000,000) cash from Philip Okocha.

COUNT V
EBIERIM ONINAWA (M) on or about the 31st day of January, 2012, at Umuagu Quarters, Asaba, in the Asaba Judicial Division, had in your possession an Ak47 Rifle with Sixty-five Rounds of live ammunition without a licence.

The prosecution called 3 witnesses and tendered Exhibit ‘A’, the alleged confessional statement of the appellant which was admitted after a trial within trial together with some items said to be firearms and marked as Exhibits ‘B’, ‘C’ 1-4 and ‘D1’-‘D54’. PW1 the victim, testified that he was kidnapped on the 31st day of January, 2012 and subsequently released after four days and a ransom paid to the kidnappers. The appellant alleges that the victim neither indicted nor connected the appellant with the said kidnap.

PW2, a security officer, testified that he received a call that PW1 had been kidnapped and that the appellant had earlier been seen at the gate of PW1. PW2 further stated that he accosted the appellant at his house the next morning at about 6.25am and the appellant denied the allegation. That later, someone named Shakara called the appellant and warned him not to “open up” but that the appellant later, when the noose closed on him, confessed that the gun used for the operation was in his (appellant’s) house. PW2 stated that he recovered an AK47 gun and 3 magazines fully loaded under the staircase in the appellant’s house.

PW3, a police officer testified that Exhibit A, the confessional statement was made to him voluntarily by the appellant and also tendered the firearms handed over to him by PW2.

The appellant denied the charges and testified that he was framed by a vigilante group because of a disagreement. That he was severely tortured and beaten by members of the group and handed over to the police. That while in police custody, the policemen continued to torture him until a co-accused who was also undergoing the same torture died in the presence of the appellant. That as a result of the death of the co-accused, the appellant then made the confessional statement (Exhibit A) out of fear.

The lower Court relied principally on Exhibit “A” and found the appellant guilty of the offences of Conspiracy to commit Kidnapping and Kidnapping and sentenced him to prison terms of 5 years for Conspiracy to commit Kidnapping and six years for Kidnapping. The Court however dismissed the charges of demanding with menace, stealing and unlawful possession of firearms as having not been proved.

Dissatisfied with the judgment of the lower Court, the appellant filed a notice of appeal on the 2nd day of April, 2014 containing an omnibus ground of appeal. Again on the 19th day of May, 2014, the appellant filed a second notice of appeal containing 4 grounds of appeal.

Learned counsel on both sides raised two issues for determination which were couched in the same manner.

ISSUE ONE
Whether the lower Court rightly held that the prosecution proved that Exhibit ‘A’ was voluntarily made by the appellant.

ISSUE TWO
Whether the lower Court rightly held that the prosecution proved the offences of conspiracy to commit kidnapping and kidnapping against the appellant beyond reasonable doubt.

Learned counsel for the appellant submitted that the confessional statement allegedly made by the appellant was not voluntary. That the sole witness of the prosecution stated under cross examination that two suspects were brought to the police station and that one of them died a “sudden and unnatural death” as stated in Exhibits 2, 3 and 4 admitted in the trial within trial.

Learned counsel further stated that the I.P.O. admitted that he was part of the team that investigated the matter and that one Chike Ojugbana also made a statement which was admitted without objection and marked Exhibit 5. That in that statement, the said Chike stated a number of times that he and other members of the vigilante group “tortured” the appellant before handing him over to the Police. Learned counsel further averred that the police thereafter continued with the torture which resulted in the death of the co-accused.

In a further submission, learned appellant’s counsel stated that the appellant gave a detailed account of his maltreatment in the hands of the police and showed the Court below the resultant scars on his ribs, his back and his hands before he signed the confessional statement. See pages 53-58 of the record of appeal.

Learned counsel reiterated the fact that the issue of the voluntariness of a statement made to the police is of paramount importance as any such statement would not be admitted if made under any influence of fear, oppression, or hope of advantage.

That the burden is then on the prosecution to establish that the confessional statement of the accused was made voluntarily since the standard of proof is proof beyond reasonable doubt. He cited in aid the case of RABIU V. STATE (2010) LPELR 4888.

Counsel also sought the liberty of this Court to refer to Exhibits 2-5 which were erroneously labeled “rejected” whereas the said documents were actually admitted as Exhibits during the trial within trial. That these Exhibits were tendered by appellant’s counsel and were admitted in four rulings as indicated on pages 47 to 49 of the record and marked Exhibits 2, 3, 4 and 5.

Again, learned counsel stated that the prosecution witness admitted that the co-accused by name Emeka Okoloko who was brought to the police station with the appellant fell ill and died at the police clinic where he had been taken. Learned counsel stated that in actual fact, the said co-accused died in police custody as a result of the torture by the police and Exhibits 2, 3 and 4 tendered by the defence showed clearly that it was a corpse that was taken to the clinic for post mortem examination and report. See Exhibit 2.

Learned counsel further contended that the trial Court occasioned a miscarriage of justice against the appellant when it held that it was in Exhibit 3 instead of in Exhibit 2 wherein it was stated that the deceased died a sudden and unnatural death. Again, that the law places the burden of proof on the prosecution to establish the voluntariness of the appellant’s statement. He concluded that the alleged confessional statement, Exhibit “A”, was not taken before a superior officer for attestation which is further confirmation of the accused person’s unchallenged evidence in the lower Court that he was tortured to make the said statement. He then cited the case of IGENTI V. STATE (2013) LPELR 2806 @ 22 Para C-F where the Court held thus:
“There is no doubt that the onus is on the prosecution to prove the voluntariness of confessional statement. One of the things to be considered in concluding that a statement was made voluntarily is the attestation of a superior officer indicating that the accused was interviewed by the superior officer and the accused confirmed that he made the statement voluntarily. That procedure is part of what is called the Judges Rules”

Counsel then urged the Court to interfere and overturn the findings of the lower Court which held that Exhibit ‘A’ was voluntary.

In answer to issue 1, learned counsel for the respondent submitted that Exhibit ‘A’ was rightly admitted as voluntarily made by the accused on the following premise:
1. The graphic details of the kidnap contained in the appellant’s statement are not such that would be known by the police officer who recorded the statement.
2. There was nothing to support the allegation of the accused that he was beaten with gun, cutlass and mortar. No medical evidence before the court to support the allegation by appellant that the injuries he showed the court were inflicted during the period of interrogation by the PW2. (Erroneously referred to as PW1 in respondent’s brief of argument)
3. The coroner’s report as to the cause of the death of the said Emeka Okoloko is not conclusive. That Emeka Okoloko was the boy the appellant alleged was tortured with him. That the death of the boy, whether natural or unnatural had nothing to do with the case.
4. Failure to have the confessional statement of the appellant attested before a superior police officer does not in any way render it inadmissible.
5. The prosecution counsel referred the court to the dictum of Belgore J.S.C (as he then was) in the case of Emeka v. The State (2001) 14 NWLR (Pt.734) 666 at 680 thus:
“The duty of the prosecution in criminal cases is to prove the guilt of the accused beyond reasonable doubt. But in cases where the accused proffers a reason where some evidence pertinent to the prosecution’s case should not be admitted due to some irregularity known to him, then that is within the knowledge of the accused and it is then the burden shifts to him to prove those facts. That is because whoever asserts must prove. Section 135(1), Section 139, and Section 141(1) of the Evidence Act”.

Prosecution counsel concluded that the appellant did not discharge this burden by not fielding any witnesses, not even the prison warden whom he claimed treated him after his torture. Prosecution counsel held that the trial Court was thus right when it concluded that the prosecution rightly proved that Exhibit ‘A’ was voluntarily made by the appellant.

RESOLUTION
In a criminal trial, where the prosecution seeks to rely on the confessional statement of the accused, it is the bounden duty of the prosecution to show that the said confessional statement had been made voluntarily, and the allegation of the accused person that the statement had been obtained by force or by a trick necessarily raises an issue as to the voluntariness of the statement itself which has to be determined by the trial judge. See SAIDU V THE STATE (1982) LPELR – 2977 (SC).

In this case, there were two accused persons who were brought into police custody. The appellant testified that he and the “other boy” later known as Emeka Okoloko were being tortured by the police and that Okoloko died as a result of the maltreatment. The appellant’s story is that he was first tortured by the vigilante group who put him in a vehicle and moved from street to street before handing him over to the police. The head of the vigilante group by name Chike Ojugbana in Exhibit 5 during the trial within trial, admitted that he and members of his group arrested the appellant at about 4.30am on the 1st day of February, 2012 and tortured him until he finally confessed to the crime.

I shall, for purposes of clarity, reproduce verbatim the said statement of Chike Ojugbana.
“We went and mount surveillance at Ebialim’s house opposite Assumption Church by Zappa Primary School, getting to 6.30am he came out of his gate and we held him and took him to our office at Ogbeilo Ogwa Uku ahaba and interrogated him, he denied ever knowing anything, we now decide to torture him he now confessed to us that he and one “Rogers” and one boy called “Shakara” were standing in front of Philco’s house and he carried Rogers with his bike to the town after torturing him more we now went to look for Rogers and apprehend him and brought him to our office and torture him “Rogers” he now told us to hold Ebialim, that Ebialim knows everything, Ebialim now called Shakara on phone but Shakara asked him what is happening he said nothing is happening, we now start to torture him again…we now took Ebialim, Rogers and the weapon to the anti kidnap office and hand them over for prosecution.”

It is however worthy of note that in addition to the torture the appellant suffered in the hands of Chike Ojugbana, he testified that the police continued with the torture while in custody until Okoloko died as a result. No doubt, a trial within trial was conducted where the trial judge found that the appellant’s statement was voluntarily obtained. No mention was made by the lower Court of Exhibit 5 in her judgment. Also the lower Court glossed over the fact that Emeka Okoloko died in the course of his incarceration in police custody. The prosecution witness claimed that he died in the police clinic while the appellant categorically stated that he died in the hands of the police during torture. It has been stated in Exhibits ‘2’ and ‘4’ that the deceased boy died “a sudden and unnatural death”.

Exhibit 2 in the trial within trial, is the post mortem examination report dated 7th Feb., 2012. Also Exhibit 3 is the coroner’s report dated 7th Feb., 2012.

The prosecution has the duty to ascertain both the cause of death and the place of death. Like I stated earlier in this judgment, the lower Court merely glossed over the death of the deceased, Emeka Okoloko and instead laid emphasis on the confessional statement of the appellant completely ignoring the circumstance under which the said statement was obtained.

I tend to agree with the submission of learned appellant’s counsel that Chike Ojugbana and his vigilante group manhandled the appellant and the co-accused in order to extract information from them. This was confirmed in Exhibit 5 at the trial court where the said Ojugbana admitted the torture of the appellant and co-accused before handing them over for “prosecution”. The appellant further testified at the lower Court that it was out of fear of dying like the co-accused that he signed Exhibit ‘A’, since he alleged that the police had already threatened him with the same fate if he failed to sign the confessional statement.

There is also the testimony that the appellant which drew the lower Court’s attention to the fact that some of the scars on his body were as a result of the injuries inflicted on him by the police and that the totality of the torture first in the hands of the vigilante group led by Chike Ojugbana and later from the police, led the appellant to involuntarily make Exhibit ‘A’ in order to save himself from further torture and possible death. See OFFORLETE V. STATE (2000) 12 NWLR (Pt.681) 415 @ 436; THE STATE VS. OLADELE (1992) 5 NWLR (Pt.241) 273.

Learned counsel for the appellant had submitted that the appellant was not taken before a superior police officer for attestation. The absence of attestation, though not fatal to the case of the prosecution, has been highly commended as a wise move giving extra assurance of fairness to the accused person and the voluntariness of his confession. See the following cases:
1. R v. IGWE (1961) ALL NLR 330
2. KIM V STATE (1992) 4 NWLR (Pt.233) 17

The learned trial judge ought to have also considered Exhibit 5 and assessed it properly before arriving at the conclusion that Exhibit A was made voluntarily.

It is however worthy of note that a co-accused died a “sudden and unnatural death” in police custody which instilled fear, in my opinion, in the mind of the appellant and caused him to sign Exhibit ‘A’ out of fear of death or of some “unnatural” causes in custody. The learned trial judge failed to avert her mind to the fact that the death of the co-accused had much to do with the case at hand creating an indelible impression in the mind of the appellant.

From the totality of all of the above, it is my humble view that the statement of the appellant (Exhibit ‘A’) was not voluntarily obtained in the light of Exhibit 5, the improper assessment of all other exhibits tendered in the trial Court in the course of the trial within trial, and the scars on the body of the appellant. This issue is resolved in favour of the appellant.

ISSUE TWO
Whether the Lower Court rightly held that the prosecution proved the offences of conspiracy to commit kidnapping and kidnapping against the appellant beyond reasonable doubt.

Learned counsel for the appellant submitted that it is an immutable principle of law that the prosecution must establish the guilt of an accused beyond reasonable doubt in a criminal case. See OGIDI V. STATE (2005) 5 NWLR (Pt.918) 286 @ 311-312. Learned counsel referred to the recent case of POSU V. STATE (2011) 2 NWLR (Pt.1234) 393 @ 412 Para D on proof of Conspiracy where the Supreme Court thus stated:
“Conspiracy means the meeting of the mind of the conspirators. It consists of intention of two or more and agreement by them to do an unlawful act or to do lawful act by an unlawful means. Conviction for conspiracy is usually predicated on circumstantial evidence, which must be of such quality that irresistibly compels the Court to make an inference as to the guilt of the accused.”

Counsel opined that in the light of the foregoing, the offence of Conspiracy is hardly capable of direct proof except of course where the accused persons confess to the crime. Also from decided authorities, that proof of the offence of Conspiracy is usually by inference of established facts adduced in proof of the substantive offence.

On the charge of kidnapping, learned appellant’s counsel submitted that the prosecution failed to prove the charge of kidnapping against the accused person beyond reasonable doubt and referred to S.135(1) and (2) of the Evidence Act, 2011 which places the onus of proof on the prosecution. That it is trite that the accused person is not expected to prove his innocence. See CHIANUGO v. STATE (2002) 2 NWLR (Pt.750) 225 @ 236 Para F – G.

That the following elements of the offence must be proved beyond reasonable doubt.
1. That the victim was seized, taken away or carried away by the accused person;
2. That the victim was taken without his consent;
3. That the victim was taken away without lawful excuse; and
4. That the victim was unlawfully detained or taken away.

Counsel further submitted that in the instant case, the Lower Court concluded that the offences had been proved beyond reasonable doubt based on Exhibit ‘A’ – the confessional statement of the accused and evidence of the 3 prosecution witnesses. Learned counsel again submitted that the evidence on record does not support the finding by the Lower Court for a number of reasons, the first of which is that the appellant was not identified by any of the prosecution witnesses. That PW1 neither saw nor identified the appellant among the boys who kidnapped him. That from the evidence of PW2 as found by the Lower Court at page 145-146 of the record, it is not in doubt that he was not an eye witness to what happened particularly between PW1 and his assailants on 31st Jan., 2012. That PW3 merely testified as to how he recorded the statement of the appellant under caution and how he proceeded to further investigate the matter.

Counsel then concluded that both PW2 and PW3 were not eye witnesses to the incident of the 31st day of Jan. 2012, and urged the Court to resolve the issue in favour of the appellant.

In his reply, learned counsel for the respondent opined that the prosecution had proved the offences of Conspiracy to commit Kidnapping and Kidnapping against the appellant beyond reasonable doubt through the evidence of 3 prosecution witnesses and the confessional statement of the appellant which was admitted as Exhibit ‘A’ at the trial within trial. That the evidential proof is through the following:
1. Direct evidence of witnesses
2. Circumstantial evidence
3. By admission and confession of the accused person.

He then cited the following cases:
1. STEPHEN VS. STATE (2013) V0L.223 LRCN (Pt.2) 215
2. OGUNZE VS. STATE (1998) 58 LRCN 3512 at 3551
3. EDAMINE VS. STATE (1996) 3 NWLR (PT.438) 530 at 531

Learned counsel further referred to the evidence on record as presented by the prosecution witnesses which was also believed by the Court. That from the facts adduced by the prosecution witnesses, the learned trial judge then thus concluded:
“The accused person from the onset masterminded, planned, and, took part in the execution of the kidnap of the PW1 with his gang members. He took the said Emeka in his motor cycle into town. He did not inform his Uncle or the police about the planned kidnap because he was neck deep into it. The people he mentioned in his statement as those responsible for the kidnap were the same people he admitted being with in front of his uncle’s house. He even went as far as mentioning the car used for the kidnapping as belonging to Chuks. This confessional statement also constitute enough evidence to convict the accused person of the offence of conspiracy and kidnapping, as the court can convict the accused person of the offence of conspiracy and kidnapping…”

Counsel again submitted that the trial judge was right when he relied on the evidence of the prosecution witnesses and the confessional statement of the appellant to convict him for the offences of Conspiracy to commit Kidnapping and Kidnapping. Counsel analysed the offence of Kidnapping to include the following ingredients:
a) That the victim was seized and taken away by the accused person.
b) That the victim was taken away against his consent.
c) That the victim was taken away without lawful excuse.

On the offence of Conspiracy to commit Kidnapping; counsel submitted that it is trite law that all the prosecution needs to prove is the agreement of two or more persons to commit the said offence. He then cited the case of DR. ODUNEYE V. THE STATE (2001) 83 LRCN page 1 at page 16 D-G; NJOVENS VS. STATE (1988) ACLR 275 at 263 – 264 where the Supreme Court thus held:
“The gist of the offence of conspiracy is the meeting of the minds of the conspirators. This is hardly capable of direct proof for the offence of conspiracy is complete by the agreement to do the act or make the omission complained about. Hence conspiracy is a matter of inference from certain criminal acts of the parties done in common between them and in proof of conspiracy the act or omissions of any of the conspirators in furtherance of the common design may be and very often are given in evidence against others of the conspirators”.

Learned counsel then concluded that there is no direct oral evidence of Conspiracy between the appellant and the others involved in the kidnap of PW1 except the confessional statement of the appellant and the evidence of PWs 1-3. He then urged the Court to affirm the findings of the trial Court and resolve the issue in favour of the prosecution.

RESOLUTION
The prosecution contended that the offences of Conspiracy to commit Kidnapping and Kidnapping against the appellant were proved beyond reasonable doubt through the evidence of the 3 prosecution witnesses and the confessional statement of the accused.

It is also necessary to consider certain glaring facts which the trial judge ought to have considered in order to arrive at the said decision.

The victim Philip Okocha who testified as PW1 at the trial Court stated categorically that he neither saw the accused nor heard his voice among the armed men who kidnapped and indeed detained him for a period of four days. It is however the bounden duty of the prosecution and an immutable principle of law that the prosecution must establish the guilt of an accused person beyond reasonable doubt in a criminal trial. See OGIDI V STATE (2005) 5 NWLR (Pt.918) 286 at 311-312, Paras. H-A. In this case, the prosecution was expected to prove the commission of both offences of Conspiracy and actual Kidnapping beyond reasonable doubt.

Undoubtedly, a conviction for Conspiracy which entails a meeting of the minds between conspirators is usually predicated on circumstantial evidence which will compel the Court to infer the absolute guilt of the accused person. The evidence of PW1 at the trial Court is that he was kidnapped on the 31st day of Jan., 2012 and released after four days. Again, the evidence of PW2 and PW3 shows that the accused/appellant was arrested at about 4.30am on 1st of Feb., 2012 and has since remained in custody without any break till this day.

The charge against the appellant is for kidnapping PW1 and detaining him for four days from the 31st Jan., 2012. A quick recap of count II of the charge is as follows:
COUNT II
EBIERIM ONINAWA (M) on or about the 31st day of January, 2012 at kilometre 3, Ibusa/Asaba Expressway, in the Asaba Judicial Division, unlawfully imprisoned or detained Philip Okocha for four (4) days against his will.

Clearly the appellant was arrested on the 31st day of Jan., 2012 and remanded in custody way beyond the period of the alleged kidnap. It stands to reason that the appellant could not have kidnapped and detained PW1 while he himself was being detained in prison custody.

I agree with learned counsel for the appellant that the case against the appellant was founded entirely on suspicion which cannot take the place of legal proof as required by law. See SHEHU V. STATE (2010) All FWLR (Pt.523) 1850; THE STATE V. OGBUBUNJO (2001) 2 NWLR (Pt.698) 236 at 589, Para G. In the latter case, the Supreme Court had this to say:
“It is trite law that it is not sufficient to say: if the respondents are not the murderers. I know of no one else who is. There is some evidence against them and none against anyone else. Therefore, they must be found guilty. Such line of reasoning is unsound. See the decision of this Court in Valentine Adie v. the State (1980) ANLR 39 page 49 which cited with approval a passage in Emperor v. Browning 39 Ac 322; also in Wills on Circumstantial Evidence 7th Edition page 324.”
In the instant case, all the prosecution did was to infer from the evidence of PW2 that the appellant was a suspect by reason of the fact that one Uche Okocha who was not called by the prosecution told PW2 that the appellant had been seen around the premises of PW1 before the kidnap incident. There is however no gainsaying the fact that suspicion, however grave does not amount to proof.

The question is: is the crime of Conspiracy to commit Kidnapping inferable against the appellant? For Conspiracy to be successfully proved, the following elements of the offence must be determined:
1. An agreement by one or two persons to execute an agreed act.
2. The act must be unlawful.
See AITUMA V. STATE (2005) ALL FWLR (Pt.318) 671 at 684.

Where persons are charged with Criminal Conspiracy, it is more often than not required that the conspiracy as laid in the charge be proved and also that the person or persons charged must be proved to have been engaged in it. On the other hand, since it is not always easy to prove the actual agreement, Courts usually consider it sufficient if it is established by evidence the circumstances from which the Court could consider it safe and reasonable to infer or presume the Conspiracy. See DABOH & ORS V. THE STATE (1977) 5 SC 122 per Udo Udoma, JSC.
In the instant case, the prosecution failed to adduce evidence to show the existence of an agreement between the appellant and any other person to commit the offence. The prosecution must prove not only the nature of the offence but also the meeting of minds of the accused persons with a common intent and purpose to commit the crime. See POSU V. STATE (Supra). Also no overt act was proved to have been undertaken in furtherance of that agreement to commit the said offence.

The learned trial judge in my view also failed to properly assess and evaluate the evidence adduced before him. A clear example is that the trial judge failed to notice that documents which were admitted during the trial within trial were erroneously labeled “rejected” instead of “admitted” and this went unnoticed by the trial Court.

Again in the course of the trial within trial, Exhibit 5 was tendered and admitted wherein PW2 Chike Ojugbana admitted torturing the appellant when he was arrested by the vigilante group but the trial Court failed to make any reference to that pieces of evidence in arriving at the conclusion that Exhibit ‘A’ was made voluntarily thereafter.

In the light of the foregoing, it is my humble view that the prosecution failed to prove beyond reasonable doubt that Exhibit ‘A’ was voluntarily made by the appellant. I also further hold the view that the Lower Court wrongly held that the prosecution proved the offences of Conspiracy to commit Kidnapping and Kidnapping against the appellant beyond reasonable doubt since no other credible evidence was adduced outside the confessional statement to support the conviction of the appellant for the alleged offences.

Conclusively, this appeal is considered meritorious and it is hereby allowed by me. Accordingly, the decision of the trial Court delivered on the 27th day of March, 2014 is hereby set aside. The appellant is accordingly discharged and acquitted.

Before I finally conclude this judgment, I have deemed it expedient to allude to the fact that having heard and reserved the appeal on the 11th of November 2014, Judgment ought to have been delivered not later than the 10th of February, 2015. It is trite, that by virtue of the provision of Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended,-
Every court established under this constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of decision within seven days of the delivery thereof.
Nonetheless, the above provision of the Constitution notwithstanding, it is a fact that the Judiciary Staff (JUNSUN) have embarked upon a nationwide strike with effect from 05/01/15. Consequent upon the timely and most commendable intervention of the Hon. Chief Justice, all the Federal Courts (the Court of Appeal, inclusive) were able to resume work from the 26/01/15. However, all State Courts in the Federation remain closed, as JUNSUN’s indefinite strike still continues.
Thus, in my considered view, the delay in delivering the Judgment within the 90 days time limit has not in any way overreached the respective parties. See subsection (5) of Section 294 of the Constitution. Indeed, the provisions of Section 294 of the 1979 Constitution are akin fundamental principles of fair hearing as enshrined in the 1999 Constitution (Supra). The most fundamental question is whether or not a reasonable person who witnessed the trial,
or peruses the Record of Proceedings of the Court, would have the impression that the delay in the delivery of the Judgment outside the constitutional time limit of three months has occasioned a miscarriage of justice upon the Appellant. As alluded to above, my answer to that pertinent question is that no miscarriage of Justice would have been caused. See MUHAMMED VS. KANO N.A (1968) 1 ALL NLR 424 @ 426; NNAJIOFOR VS. OKONU (1985) 2 NMLR 686; AKPAN vs. THE STATE (1986) 3 NWLR (Pt.27) 258; UNITY BANK PLC VS. ADAMU (2013) LPELR – 2204 (CA); HARUNA VS. UNI. OF AGRIGULTURE MAKURDI (2005) 3 NWLR (PT.912) 233; (2005) LPELR – 5899 (CA).

HAMMA AKAWU BARKA, J.C.A.: I had the opportunity of reading in draft the judgment just delivered by my brother, Philomena Mbua Ekpe, JCA.

I agree with the reasoning and the conclusions reached, that the appeal has merit and it is hereby allowed.

The decision of the Lower Court delivered on the 27th of March, 2014 is hereby set aside. In its place, I enter and order that the appellant be discharged and acquitted.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I had the opportunity of reading in draft the judgment just delivered by my learned brother, Philomena Mbua Ekpe, JCA. I agree with her reasoning and conclusion that the appeal has merit and ought to be allowed.

Our adversary criminal justice system is accusatorial. This is in tune with Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), which provides that every person charged with a criminal offence shall be presumed innocent until he is proved guilty. The necessary corollary of this presumption of innocence is that the prosecution has the onus of proving the commission of the crime charged beyond reasonable doubt as stipulated in Section 135 of the Evidence Act, 2011. If on the whole of the evidence adduced, a state of doubt exists, then the prosecution would have failed to discharge the onus of proof and the accused person will be entitled to an acquittal. See UKPE vs. THE STATE (2001) 18 WRN 84 at 105.

Though the law is that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt and if the evidence is strong against a man, as to leave only a remote probability in his favour, which can be dismissed with the sentence; “of course it is possible, but not in the least probable”, the case is proved beyond reasonable doubt. See MILLER vs. MINISTER OF PENSIONS (1947) 2 ALL E.R. 372 and MICHAEL vs. STATE (2008) LPELR (1874) 1 at 24.

From the Records of Appeal in the instant case, the Lower Court mainly relied on the confessional statement allegedly made by the Appellant. As admirably analysed and demonstrated in the lead judgment, the Lower Court was in error to have admitted the said confessional statement in evidence after the voir dire. The evidence on record of the voir dire clearly shows that the confessional statement was not made voluntarily and that it should not have been admitted in evidence.

Apart from the confessional statement of the Appellant which was not made voluntarily and should not have been admitted in evidence, the evidence adduced by the Respondent does not rise to the level of proof of the offences charged beyond reasonable doubt. The evidence leaves a lot more than a remote probability in favour of the Appellant; it is not such that can be dismissed with the sentence; “of course it is possible, but not in the least probable”.

Proof beyond reasonable doubt does not mean or import beyond any degree of certainty. The term strictly means that within the bounds of evidence adduced before the court, no tribunal of justice would convict on it having regard to the nature of the evidence led in the case. Evidence in a criminal trial, which is susceptible to doubt as in the instant case; and which is premised largely on suspicion as neither the PW1, the victim of the kidnap, nor any of the other prosecution witnesses identified the Appellant as one of the kidnappers cannot be said to have attained the standard of proof that is beyond reasonable doubt.

Suspicion, speculation, conjecture, proposition, hypothetical situations, presumptions or intuition cannot be a substitute for proof beyond reasonable doubt. It should be a proof that excludes all reasonable inference or assumption except that which it seeks to support. It must have clarity of proof that is readily consistent with the guilt of the accused person. See STATE vs. ONYEUKWU (2004) 14 NWLR (PT.893) 340 at 379F – 380B.

It is aphoristic to state that it is better for nine guilty persons to escape punishment than for one innocent person to be convicted: UKORAH vs. STATE (1977) 4 SC 167 at 177 and SHEHU vs. STATE (2010) LPELR 1 at 26-27. I agree with my Lord, Ekpe, JCA that a rational and critical examination of the evidence in this matter will disclose that the Respondent did not discharge the burden cast upon it of proving the offence charged beyond reasonable doubt. The charge laid is that the Appellant unlawfully imprisoned or detained the victim for four days from 31st January, 2012. The evidence shows that the Appellant was arrested and taken into custody, where he has since remained, on 1st February 2012, thus casting a doubt as to whether he could while in custody have detained the victim. The doubts which exist in the case of the Respondent ought to have been resolved in favour of the Appellant: UKPE vs. STATE (supra) at 105, EDET vs. STATE (1988) LPELR (1008) 1 at 21 and ORJI vs. STATE (2008) 10 NWLR (PT.1094) 31 at 50.

In the light of the foregoing, I also join in allowing the appeal. The judgment of the High Court of Delta State in Charge No.A/1C/2013 delivered on 27th March, 2014 is hereby set aside. The conviction and sentence imposed on the Appellant is accordingly set aside. The Appellant is discharged and acquitted.

Appearances

E. Ohioworiole Esq. with him P. O. Ofiaeli Esq. and A. Anyasi Esq.For Appellant

AND

O. F. Enenmo Esq.For Respondent