EMEMOBONG EDET UMOH V. THE STATE
(2013)LCN/6374(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 3rd day of July, 2013
CA/C/192C/2012
JUSTICES
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria
Between
EMEMOBONG EDET UMOH – Appellant(s)
AND
THE STATE – Respondent(s)
RATIO
THE BURDEN OF PROOF IN CRIMINAL MATTERS
In a criminal trial, the burden of proof that an accused person committed an offence is on the prosecution and it is proof beyond reasonable doubt. See Section 135 of the Evidence Act, 2011. The onus is upon the prosecution to prove the elements which go to make up the offence charged. If the Prosecution fails to prove any of them, the accused person is entitled to an acquittal; and, if in spite of that he is convicted, he is entitled to have the conviction quashed on appeal. See: Ani v State (2009) 6 MJSC (PT 11) 1.From the evidence proffered in this matter, the prosecution did not prove either that the Appellant was kidnapped at all or that she aided her own kidnap. This appeal therefore succeeds. PER OTISI, J.C.A.
ONYEKACHI A. OTISI, J.C.A.: (Delivering the Leading Judgment): This is an appeal against the Judgment of the High Court of Akwa Ibom State, sitting at Uyo, delivered on 22/6/2012.
The Appellant was the 2nd accused person in Charge No HU/3C/2012. The accused persons were charged on a two count Charge for kidnapping punishable under Section 1(2)(a) of the Akwa Ibom State Internal Security and Enforcement Law 2009; and, aiding the commission of offence contrary to Section 10(1)(d) of the Akwa Ibom State Internal Security and Enforcement Law 2009. The Appellant was found guilty of aiding commission of offence contrary to Section 10(1)(d) of the Akwa Ibom State Internal Security and Enforcement Law, 2009; and, sentenced to death. Dissatisfied with the judgment, the Appellant has appealed to this Honourable Court.
The facts leading to this appeal are as follows: The Appellant was house help of the family of Dr. Okon John Emah and Dr. Mrs. Helen Emah. On 9/11/2010, she was sent by her mistress to purchase waterleaves (vegetables). She did not come back. Her mistress, Dr. Mrs. Helen Emah, who testified as PW2, was contacted by kidnappers, who demanded the sum of N50 million for her release. Dr. Okon John Emah, PW1, informed the mother of the Appellant of the kidnap of her daughter. On the advice of the State Security Service (SSS), the Appellant’s mother, rather than PW1, negotiated for the release of the Appellant. While the negotiation was going on, investigation by the SSS officers revealed, through a tracking machine, that the Appellant had communicated with one of the numbers used by the kidnappers for about 425 minutes, over a period of ten days prior to the date of the offence. Meanwhile, the Appellant’s mother apparently successfully negotiated her release. Upon her release, she was picked up by the SSS for interrogation. During investigation, the Appellant confessed that she was being kept in the residence of the 1st accused by her boyfriend, one Clement Sylvester Etim, with her consent, in order to extort money from the Appellant’s employers (PW1 and PW2). She added that the 1st accused person was not privy to this plot. The said Clement Sylvester Etim is at large. The case was later transferred to the Police for further investigation. PW3 was of the Special Anti-Robbery Squad. His investigations also revealed that the Appellant had been detained in the house of the 1st accused person, with her consent, in order to extort money from PW1. At the conclusion of the trial, the learned trial Judge held that the prosecution did not prove its case against the 1st accused person beyond reasonable doubt. He was therefore discharged and acquitted. For the Appellant, the trial court relied on her statement, Exhibit B, and other evidence proffered to find that the offence as charged in Count 11 had been proved beyond reasonable doubt against the Appellant. She was sentenced to death. Dissatisfied with her conviction and sentence, she filed this appeal.
The Notice and Grounds of Appeal, raising three Grounds of Appeal, was filed on 3/7/2012. Ekanem Ekanem Esq. learned Counsel for the Appellant filed the Appellant’s Brief on 24/12/2012 but it was deemed properly filed and served on 7/5/2013. The Respondent’s Brief was filed on 4/4/2013 by Friday J. Itim Esq., of the Department of Public Prosecution, Ministry of Justice, Uyo, but deemed properly filed and served on 7/5/2013. These Briefs were adopted by respective Counsel on 7/5/2013.
Out of the 3 Grounds of Appeal, the Appellant formulated 4 issues:
1. Whether the High Court below was not wrong in finding the Appellant guilty of aiding commission of offence and sentencing her to death for same when the offence she is said to have aided was neither established nor proved.
2. Whether the High Court below was not wrong in convicting and sentencing the Appellant to death for aiding commission of offence upon the evidence of PW1 and PW2 when they were neither victims of the offence said to have been committed, nor witnessed same.
3. Whether the High Court below was not wrong in convicting and sentencing the Appellant to death for aiding commission of offence when the 1st Accused person, Ime Mathias Okon, charged along with her for the offence of kidnapping was discharged and acquitted.
4. Whether the High Court below was not wrong in convicting and sentencing the Appellant to death for aiding commission of a crime upon an unpublished law.
For the Respondent, three issues were raised as follows:
1. Whether the prosecution proved its case against the appellant beyond reasonable doubt.
2. Whether the Lower Court was right to convict and sentence the accused/appellant to death on the strength of the evidence adduced by the witnesses as well as the confession of the accused/appellant.
3. Whether the Akwa Ibom State Internal Security and Enforcement Law (under which the accused/appellant was tried, convicted and sentenced) was duly enacted by the Akwa Ibom State House of Assembly, as a written Law.
Issues 1, 2, and 3 raised by the Appellant are similar to Issues 1 and 2 raised for the Respondent. These Issues shall be considered together, and are all renumbered as Issue No 1.
Issue No 4 raised for the Appellant and Issue No 3 raised by the Respondent are also similar and shall be considered together, renumbered as Issue No 2.
On Issue No 1, the Appellant relied on the provisions of Section 1(1) of the Akwa Ibom State Internal Security and Enforcement Law, which provides as follows:
No person shall
(a) kidnap or detain another person: or
(b) prevent another person from applying to a Court for his release or from disclosing to any other person, the place where he is held hostage; or
(c) prevent any person entitled to have access to another from discovering the place where he is held hostage with or without demanding for ransom.
The said Law in Section 16 defines the word “kidnap” as follows:
“kidnap means to seize and take away a person by force or fraud, with or without a demand for ransom”.
It is submitted that from the definition provided and reproduced above, the prosecution is required to prove –
(a) that the person said to have been kidnapped was seized either (i) forcefully or (ii) fraudulently.
(b) that ransom was paid, if it was so alleged; and, was so reflected on the charge.
It is submitted that the Appellant consistently maintained she was not kidnapped, nor detained: nor was she prevented from leaving the place where she was. That she was neither confined in any manner, nor was any other person prevented from seeing her. But, that she went there of her own volition.
Learned Counsel relied on the evidence of the Appellant to submit that she voluntarily stayed at the residence of the 1st accused person and left when she decided to do so. He submitted that the offence of kidnapping was not established against the 1st accused person, who was alleged to have kidnapped the Appellant. That from the charge, the Appellant was an accomplice, an accessory; but, that before an accessory can be convicted, there must be proof that the offence was indeed committed by the person the Appellant is said to be accessory after the fact. He relied on Abacha vs. State (2002) 100 LRCN 1588 at 1593, where the Supreme Court stated that:
“Nobody can be accessory to offence not proved.”
The case of Anazodo vs. Audu (1999) 4 NWLR (PT 600) 530 is relied upon to submit that ingredients of a crime must be proved beyond reasonable doubt before a conviction can be sustained. Learned Counsel submitted that the Lower court was wrong to have convicted the Appellant and sentenced her to death for aiding the commission of the offence of kidnapping, when the offence of kidnapping was not established.
It is submitted for the Appellant that neither PW1 nor PW2 witnessed the alleged kidnapping. They did not also pay any ransom. It is submitted that the best evidence of the prosecution being that of PW1 and PW2, having foiled to establish the offence of kidnapping , there was no basis for convicting the Appellant, relying on Utteh vs. State (1999) 2 LRCNCC 100.
It is submitted that the trial court was wrong in convicting the Appellant and sentencing her to death for aiding the commission of the offence of kidnapping, when the 1st accused person, who was charged with the offence of kidnapping was discharged and acquitted. It is submitted that where discredited evidence of same witnesses is used to discharge and acquit some accused persons in a joint trial, the same evidence cannot be used to convict some other accused Persons facing same or similar charges; relying on Shekete vs. N.A.F. (2007) 14 NWLR (PT 1053) 159 at 173; Adele vs. State (1995) 2 NWLR (PT 37) 269; Imhanria vs. Nigerian Army (2007) 14 NWLR (PT 1053) 76 at 85.
For the Respondent, it is submitted that the Appellant was charged under Section 10 (1)(d) of the Akwa Ibom State Internal Security and Enforcement Law, 2009, which provides as follows:
10(1)(d) Any person who aids another in committing the offence
It is submitted that what the prosecution needs to prove are:
1. That an offence was committed under the Akwa Ibom State Internal Security and Enforcement Law; and
2. That the accused/ Appellant aided another person in committing the offence.
It is submitted that this burden of proof was discharged by the prosecution through its witnesses, PW1, PW2 and PW3; and that Exhibit B, the extra judicial Statement of the Appellant, corroborated and buttressed the prosecution’s case. It is submitted that by the combined effects of Sections 8, 28 and 29 of the Evidence Act 2011, the lower court was right to convict the Appellant on the strength of Exhibit B; relying on Omoju vs. Federal Republic of Nigeria (2008) 11 MJSC 156 at 159 – 161; Bright vs. State (2012) 8 NWLR (PT 1302) 297. The court is urged to dismiss the appeal.
On Issue No 2, it is submitted for the Appellant that the Akwa Ibom State Internal Security and Enforcement Bill was signed into law on 14/5/2009 and made to come into force 12/5/2009. It is submitted that the law has not been published in any form and is nowhere to be found. That what is available is a photocopy of the bill signed by the Governor of Akwa Ibom State, and nobody is sure if the signature on the bill is indeed that of the Governor; and that the existence of a law cannot be a matter of speculation. It is submitted an official gazette is the main vehicle of communicating acts of government; and acts as notice to all; relying on Imade vs. Milad, Edo State (2001) FWLR (PT 72) 1987 at 2001. It is submitted that the existence of all proclamations, Acts of the State, nominations, appointments and other official communications of Government may be proved by the production of such gazette, and shall be prima facie proof of any fact of public nature which they were intended to notify.
The following cases were relied upon: The Administrators/Executors of the Estate of General Sani Abacha vs. Eke-Spiff (2003) FWLR (PT 144) 531); Attorney General (Bendel State) vs. Attorney General, Federation (1981) NSCC 314. Learned Counsel also relied upon Section 148 of the Evidence Act, as amended; and further submitted that to convict an accused person upon an unpublished law would amount to an infringement of his fundamental right as guaranteed under Section 36 (12) of the Constitution of the Federal Republic of Nigeria, as amended.
Learned Counsel for the Appellant finally urged the Court to resolve the issues raised in favour of the Appellant, and set aside the judgment of the lower court.
For the Respondent, it is submitted that once the State House of Assembly passed the Akwa Ibom State Internal Security and Enforcement Law and the State Governor assented thereto, the law become in force and enforceable.
It is submitted that the provisions of Section 36 (12) of the Constitution as amended are inapplicable. It is submitted that the Akwa Ibom State Internal Security and Enforcement Law, 2009 complies with the Constitutional provision. Section 1(12) of the Law States the punishment on conviction to be a death sentence: while Section 10(1)(a)-(d) of the Law classifies persons deemed to have taken part in the commission of the offence. It is submitted that the Appellant was rightly convicted. The Court is urged to uphold the Judgment of the trial court and dismiss the appeal.
I shall now consider these Issues.
ISSUE NO 1:
Count 11 of the Charge No HU/39/2012 reads:
STATEMENT OF OFFENCE
AIDING commission of offence contrary to Section 10(1)(d) and punishable under section 10(2) of Akwa Ibom Internal Security and Enforcement Law 2009.
PARTICULARS OF OFFENCE
EMEMOBONG EDET UMOH (F) on or about the 9th day of November, 2010 at Nsukara Offot village in Uyo Judicial connived and agreed with other persons to be detained to enable you extort some money from one Dr. Okon J. Emah.
The relevant provisions of the Akwa Ibom State Internal Security and Enforcement Law, 2009 are as follows:
Section 1(1):
No person shall:
(a) Kidnap or detain another person or
(b) Prevent another person for applying to a court for his release or from disclosing to any other person, the place where he is held hostage or,
(c) Prevent any person entitled to have access to another from discovering the place where he is held hostage with or without demanding for ransom.
Section 1 (2):
Any person who contravenes Sub-Section (1) of this section commits an offence and shall on conviction be liable to be sentenced to death.
Persons who are liable under the Law include as provided in Section 10 (1) (d):
Any Person who aids another in committing the offence.
Section 16:
“kidnap means to seize and take away a person by force or fraud, with or without a demand for ransom”.
The Legalpedia Law Dictionary with Nigerian Cases defines kidnapping as follows:
To confine a person against his or her will.
Kidnapping (is) the stealing and carrying away, or secreting of any person of any age or either sex against the will of such a person, or if he be a minor, against the will of his friends or lawful guardians.
Learned Counsel for the Appellant has rightly submitted that from the definition provided under the Law, the prosecution is required to prove –
That the person said to have been kidnapped was seized either (i) forcefully or
(ii) fraudulently, with or without a demand for ransom.The case of the prosecution is that the Appellant, who was the alleged victim and also the 2nd accused person, aided another person, to kidnap her person. The 1st accused person was charged as the person who the Appellant aided to commit the offence.
After the learned trial Judge completely reviewed the evidence against the 1st accused, he found that the Charge against the 1st accused person was not established; and he concluded thus:
“I am therefore unable to come to the conclusion that the prosecution has proved its case against the 1st accused person beyond reasonable doubt.
The 1st accused person was, in consequence, discharged and acquitted. But, for the Appellant, the offence of aiding the commission of offence contrary to Section 10(1)(d) of the Law, was held to have been established.
To my mind, two questions need to be addressed. First: whether the Appellant was kidnapped, within the meaning of the Law; and, secondly, if she was kidnapped, who did she aid or assist to commit the offence of kidnapping, since the 1st accused has been acquitted and discharged. These questions will be answered by reference to the evidence proffered by the prosecution before the trial court.
Exhibit B, relied on by the prosecution was the extra judicial Statement made by the Appellant in which she stated:
“Sometime in August 2010 Clement Sylvester brought idea that he want (sic) to get some money from my aunty. That he will take me some where and I will called (sic) my aunty that I am kidnapped and she will paid (sic) a ransom I did not accept the idea – initially. I did not disclose the information to my aunty… At about 21.30 hrs Clement Sylvester took me outside to called (sic) my aunty that I am kidnapped… On 19/11/2010 at about 0600 hrs while I was sleeping Ime Matthias woke me and told me that Clement want (sic) to speak with me on phone. When I pick up the phone Clement told me to go. It was Ime Matthias who gave me N200.00 for transport”.
In her testimony in chief as DW2, she said she accompanied her boyfriend Clement Sylvester Etim to residence of the 1st accused person to enable her boyfriend check electrical faults. She then said of page 34 of the Record of Appeal:
“Upon being shown the fault, Clement Sylvester commenced work on the problem until it was getting dark. I requested to be allowed to go but Clement Sylvester Etim prevailed on me. When Clement Sylvester Etim finished he still pressed that I should not go. I told him I could face problem at home for staying out late but Clement Sylvester refused my going. Clement Sylvester Etim is my boyfriend. Clement Sylvester Etim then prevailed him (sic)to stay that I had promised to spend the night with him. I then agreed and stayed with him I did not return to my mistress to deliver what she sent me to buy.”
Under cross examination, DW2 admitted that she remained in the house of the 1st accused person for days. She also admitted she did not call her mistress, PW2. She admitted Exhibit B was her Statement with her signature on it. DW2 was further questioned by the prosecution on how she left the place:
Q: How did you then leave first accused persons (sic) house.
A: When I woke up. I called first accused person and his wife that I would be going: it was first accused person that gave me transport money.
When cross examined by learned Counsel for the 1st accused person, she said:
“Q: You were not confined.
A: We used to go out at night.”
The learned trial Judge of page 155 of the Record of Appeal noted from the testimony of the Appellant that:
“What is the proof of aiding it is simply that the 2nd accused played along with the plan of Clement Sylvester. In her evidence in chief DW2 stated that she did go out at night while at Nsukara Offot. She painted a picture of not being subjected to any manner of restraint, being tied or locked up yet she did not return home until after 10 days during which period Clement Sylvester kept exploring how to ensure that the object of the scheme to collect ransom worked out. What inference must be drawn.
It is that the 2nd accused person was bent on waiting until the order to return home came from the master mind of the scheme. The fact that 2nd accused person left the house of the PW1 and PW2 for 10 days is indicative of having the opportunity to commit the offence charged.
There is also the unchallenged evidence of the PW1 that in the period immediately preceding the event of 9/11/2010 the 2nd accused person following the examination of her phone number by the SSS in his presence had been in continuous communication for a cumulative period of less than four hours with the user of the phone number with which PW2 was inform (sic) that the 2nd accused person had been kidnapped. There is also evidence before this court that it was the same phone number that PW2 gave to the mother of the 2nd accused to enter into negotiation with the kidnappers. In a charge laid under section 10(1)(d) of the Akwa Ibom State Internal security and Enforcement Law, 2009 whether the ransom was indeed paid is not material.”
I agree with the learned trial Judge that it is clear from the testimony of the Appellant as DW2 that she was not taken by fraud or by force. Rather, she was fully part of an evil wicked scheme to extort money from her helpless employers and benefactors. The evidence does not show at all that the Appellant was kidnapped. In deed in concluding her Statement in Exhibit B, she stated:
“I don’t know if Clement Sylvester has told Ime Matthias of the business. I am not sure Ime Matthias is aware of this business.”
Commenting on this, the trial Judge rightly said of page 153:
“The business 2nd accused person was talking about is that of her kidnap or pretended kidnap.”
It was in actual fact a ‘pretended kidnap’, if I may borrow the words of the learned trial Judge. The Appellant was by no means kidnapped.
Secondly, if the Appellant was indeed kidnapped, she must have aided someone to commit the offence in order to be liable under the Law. Having discharged the co-accused, 1st accused person, on the evidence as presented, who did the Appellant assist or aid to kidnap her person? As rightly submitted for the Appellant, before the accessory after an offence can be convicted, there must be proof that an offence was actually committed by the person the Appellant is said to be accessory after the fact. Nobody can be an accessory to offence not proved. See: Abacha vs. State (supra).
The evidence of the Appellant as DW2 identified her boyfriend, Clement Sylvester Etim as being the main actor in this entire grand criminal and immoral drama. He is said to be at large. His side of the story has not been heard. The evidence however clearly shows that the Appellant was not kidnapped. She could not have aided anybody to kidnap her person. Rather, she was a willing aide or accomplice to a grand design to extort money from her employers.
I therefore resolve Issue No 1 in favour of the Appellant.
Issue No 2
Section 36 (12) of the Constitution, as amended provides as follows:
Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty thereof prescribed in a written law; and in this subsection, a written law refers to an Act of the National Assembly or a Law of the state, any subsidiary legislation or instrument under the provisions of a law.
The fact that the Akwa Ibom State House of Assembly passed the Bill on Internal Security and Enforcement; and, it was signed into Law on 14/5/2009, is not in issue. Learned counsel for the Appellant submitted that:
“What we have is a photocopy of a bill signed by whom we believe to be the Governor of Akwa Ibom State. Nobody is sure if the signature on the bill is indeed that of the Governor or not.”
Learned Counsel relied on Section 148 of the Evidence Act, 2011. It is instructive to also note the provisions of Section 168 of the Evidence Act 2011, which provides that:
When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with.
I agree with the learned trial Judge who at page 148 of the Record of Appeal said that:
“Every law passed by a legislative body enjoys the presumption of having been properly passed and all that is necessary done until contrary is proved.
There is therefore nothing before this court impugning the legality of AKWA IBOM STATE INTERNAL SECURITY AND ENFORCEMENT LAW.”
I would therefore resolve Issue No 2 against the Appellant.
In a criminal trial, the burden of proof that an accused person committed an offence is on the prosecution and it is proof beyond reasonable doubt. See Section 135 of the Evidence Act, 2011. The onus is upon the prosecution to prove the elements which go to make up the offence charged. If the Prosecution fails to prove any of them, the accused person is entitled to an acquittal; and, if in spite of that he is convicted, he is entitled to have the conviction quashed on appeal. See: Ani v State (2009) 6 MJSC (PT 11) 1.From the evidence proffered in this matter, the prosecution did not prove either that the Appellant was kidnapped at all or that she aided her own kidnap. This appeal therefore succeeds.
Accordingly, the conviction and sentence of the Appellant in the Judgment of the High Court of Akwa Ibom State, delivered on 22nd June, 2012, in Charge No HU/3c/2012 is hereby set aside.
The Appellant is hereby discharged and acquitted.
UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form the judgment just delivered by my learned brother Onyekachi A. Otisi, JCA. I agree with the lead judgment, that the Appellant was not really kidnapped as she had free ingress and egress from where ever she was kept. The co-accused the Appellant was supposed to have aided in the kidnap, has been discharged.
Who did she now aid in committing this crime. I agree with the reasoning and final conclusion that without the co-accused in this case, the alleged crime cannot stick on the Appellant.
For this and the more comprehensive reasoning in the lead judgment, I also allow this appeal. I abide by all the consequential orders in the lead judgment.
JOSEPH TINE TUR, J.C.A.: After reading an advance copy of the lead judgment delivered by my Lord ONYEKACHI A. OTISI, JCA, I am also inclined to allow this appeal. I shall adopt the summary of the facts by my Lord. The word “kidnap” is defined in Section 16 of the Akwa Ibom State Internal Security and Enforcement Law (supra) as “to seize and take away a person by force or fraud, with or without a demand for ransom.”
The word “force” within the con of the Section could only mean to compel by physical means.
This includes force that is directed against a person without that person’s consent, which constitutes a criminal offence or in civil causes and matters, becomes an actionable tort. See Black Law Dictionary, 9th edition, page 718. The prosecution did not establish by cogent evidence that the appellant was kidnapped, namely, taken away by force from her homestead by Ime Mathias Okon.
In Whartons Criminal Law, 15th edition, 1993 paragraphs 29 page 181 appears the following statement of the law:
“In connection with the principal in the second degree or accessory before the fact, the term ‘aid’ and ‘abet’ are frequently used interchangeably, although they are not synonymous. To ‘aid’ is to assist or help another. To ‘abet’ means, literally, to bait or excite, as in the case of an animal. In its legal sense, it means to encourage, advise, or instigate the commission of a crime.”
If to “aid” under Section 10(1)(d) of the Law (supra) is to assist or help another to commit an offence, but no offence has been committed by the principal offender who was discharged and acquitted I think the person alleged to have aided the principal should also be discharged and acquitted.
It is for this and the fuller reasons given by my Lord that I also allow this appeal. The appellant is discharged and acquitted.
Appearances
Ekanem Ekanem, Esq.,For Appellant
AND
Friday J. Itim, Esq., Assistant Director, Ministry of Justice, Uyo, Akwa Ibom State.For Respondent
