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EVANS IDEHEN v. THE ATTORNEY GENERAL OF THE FEDERATION (2019)

EVANS IDEHEN v. THE ATTORNEY GENERAL OF THE FEDERATION

(2019)LCN/13415(CA)

In The Court of Appeal of Nigeria

On Monday, the 3rd day of June, 2019

CA/B/52C/2016

 

JUSTICES

CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria

Between

EVANS IDEHEN Appellant(s)

AND

THE ATTORNEY GENERAL OF THE FEDERATION Respondent(s)

RATIO

WHETHER OR NOT THE REMOVAL OF THE NAME OF A PERSON IN A CHARGE IS A PROSECUTORIAL BLUNDER

It is therefore my humble but firm view that the role played by the Appellant and the wicked ?Parents? of the victim PW1 were so interwoven almost like Siamese twins that the prosecution at the trial Court made a caricature of the prosecution?s case by removing the parents of the victim (PW1) from the Charge when they had initially and rightly Charged them along with the Appellant. The subsequent removal of the name of the parents of the victim in the Charge for no reason known to law was in my view prosecutorial blunder and indiscretion. It is condemnable. This is because the parents of the victim were supposed to have received even greater punishment for sacrificing their own daughter to be taken abroad for prostitution. PER NWOSU-IHEME, J.C.A.

CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment): The Appellant in this Criminal Appeal was arraigned before the High Court of Edo State, Benin Division, presided over by A. Adodo-Eruaga, J, on an information of a two Count Charge under the Trafficking in persons (Prohibition) Law Enforcement and Administration Act 2003 as amended (NAPTIP Act)
a. Procurement of a person for prostitution contrary to Section 15(a) of the said Act.
b. Promoting foreign travel which promotes prostitution contrary to Section 16 of the said Act.

In his judgment delivered on the 23rd of July, 2015, the learned trial Judge convicted the Appellant on the two Count Charge aforementioned and sentenced him to Ten years imprisonment each in counts 1 and 2, the sentence of which are to run concurrently. This Appeal is premised on the said judgment.

SUMMARY OF FACTS: –
The case as presented by the prosecution at the trial Court was that the Appellant procured and organized foreign travel for the victim in this case (PW1 ? Blessing Osagie) for the purpose of prostitution in Spain. PW2 Blessing?s father?

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Osagie Odigie and PW3 (Blessing?s Step-mother ? Juliet Amadi in their testimonies in Court, stated how the Appellant convinced them to allow the Appellant take PW1 to Spain for Prostitution.

PW1, PW2 and PW3 all testified concerning how the Appellant asked PW2 and PW3 to purchase certain items for sacrifice for the purpose of making the journey smooth, which items PW2 and PW3 bought and they all proceeded to the Shrine where the items were placed on the head of PW1 before the sacrifice was offered.

PW1 in her testimony stated that she knew she was been taken abroad for prostitution and that PW2 and PW3 were aware and encouraged her to proceed on the journey. Consequently, the Appellant took the victim PW1 to Togo and paid for her transport fare. Upon arrival at Togo and while the Appellant went to buy food, PW1 and some other girls from Nigeria were questioned by the Police in Togo and taken to the Police Station. The Appellant was also arrested when he came to the Police Station. They were taken to the Nigerian Embassy at Togo and eventually brought back to Nigeria.

?PW4 and PW5 were NAPTIP investigators and testified on how the case

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was received in Lagos Command alongside Eight Victims, PW1 being among them. They gave evidence of how the investigation was carried out which led to the arrest of PW2 and PW3.

PW2 and PW3 were charged to Court alongside the Appellant. However, before trial commenced, the Charges against PW2 and PW3 surprisingly were withdrawn for no cogent reason whatsoever. The charge sheet was subsequently amended having only the Appellant as the accused person at the trial Court. His conviction and sentence to Ten years imprisonment on both Counts which were to run concurrently resulted in the filing of this appeal.

Learned Counsel for the Appellant D.O. Aziegbe ESq. distilled three issues for determination as follows:-
1. ?Whether the Lower Court scrupulously examined and analyzed every item of evidence particularly as it affects Lucky whose name featured on the Appellant?s statement during trial, whether failure to give attention to this issue as it relates to Lucky would not lead to miscarriage of justice knowing fully well that in every criminal trial every item of evidence must be scrupulously examined, analyzed and weighed.

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2. Whether the evidence of Co-accused can be used by Court to justify conviction, taking into consideration the fact that two witnesses PW2 and PW3 were Charged to Court based on the same facts in this case and the charge number did not change from the beginning to the end even when the charge was amended, therefore evidence of co-accused goes to no issue in a Criminal trial without corroboration from an independent person or persons.
3. Whether failure by the prosecution to investigate the role played by Patricia and Lucky as contained in evidence does not raise doubt in the entire process which ought to be resolved in favour of the Accused/Appellant.?

Learned counsel for the Respondent J. O. Giwa Osagie formulated two issues similar to the issues formulated by counsel for the Appellant.

Arguments of both Counsel are contained in their respective briefs as well as the Reply brief. I do not intend to reproduce them in this judgment

?In the determination of this appeal, I shall reproduce some relevant portions of the testimonies of PW1, PW2 and PW3. This appeal will be determined to a large extent on the testimonies of PW1 ? PW3. I will

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adopt that method in view of the fact that PW1 ? PW3 agreed that the Appellant from the very first day made it very clear and unambiguous that the PW1 Blessing Osagie was being taken abroad for prostitution. Pw2 and PW3 were on the same page with the Appellant and encouraged him to proceed with their daughter. The encouragement was demonstrated when the Appellant gave PW2 and PW3 a list of items to purchase for sacrifice to make the trip easy. They not only purchased those items, but came with their daughter PW1 to the shrine for the sacrifice. That was a demonstration of their willingness, encouragement and excitement to give their own child away to be taken abroad for prostitution despite her tender age.

PW1 Blessing Osagie in her testimony on the 29th day of September 2014 stated as follows:
? I did not travel in December, 2011 as the accused told my parents that I was not mature enough. When I got to the accused that December, he took us to a shrine in the place called Aifuna in Benin here. He gave them a list of some items to buy for sacrifice. They went to the market to buy the items. They bought joy

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soap and perfume and get the item that was to be used for sacrifice. The accused used the perfume and the soap to make soap and gave it to me to use
On the Monday the accused and I took off from Godwin Edosa Motor Park headed for Lagos. . We got to Togo at about 10 am?. When the accused was taking me abroad he told me he was taking me for prostitution. I agreed to follow the accused because of my family situation. My father does not have the money to educate me in school. My father asked me to go with the accused. Under cross-examination PW1 stated ? it was my father, my Step-mother and Patricia that persuaded me to travel abroad in this matter.?
(See pages 47 ? 50 of the Record of Appeal.)

PW2 Osagie Idigie in his own testimony in Court on the 30th day of September, 2014 stated thus:-
?. My mother-in-law asked the accused if the PW1 was not too small. The accused said he traffic smaller children. The accused then asked me to go buy Pigen and Guinea fowl, when I bought the Pigen and guinea fowl the

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accused used it for sacrifice. He used it to touch the PW1?s head before killing the birds. The accused took PW1?s picture and sent it to the mother of the girl in Spain to ascertain her size (PW1). The mother of the girl said the PW1 was too small. Under Cross-examination, PW2 stated it is true my mother-in-law, my wife and I went to the accused house over this travel issue. I also took PW1 along to the house of the accused?..?
(See Pages 52 ? 53 of the Record of Appeal)

PW3 Juliet Amadin who also testified on the 30th day of September, 2014 stated as follows: –
the accused asked us to go and buy things for him to use to prepare the PW1 for the journey to be successful. We then went to buy Pigen, Coconut and guinea fowl for the Defendant accused. Under Cross-examination she stated thus? the accused asked my mother to bring another person to replace my pregnant sister. We took the accused to her and agreed for him to take PW1 abroad.?
(See pages 54 ? 55 of the Record of Appeal)

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From the testimonies of PW1 ? PW3 reproduced above, it was very clear that from the beginning of the devilish transaction, the Appellant made it very clear to the parents of PW1 (the victim) that she was being taken abroad for prostitution. The father of PW1 Osagie Idigie (PW2) and the Step-mother of the PW1 Juliet Amadin (PW3) betrayed such level of callousness that portrayed them not only as barbarians but unworthy to be called parents. They deliberately connived with the Appellant to take their own child abroad for prostitution.

?It is therefore my humble but firm view that the role played by the Appellant and the wicked ?Parents? of the victim PW1 were so interwoven almost like Siamese twins that the prosecution at the trial Court made a caricature of the prosecution?s case by removing the parents of the victim (PW1) from the Charge when they had initially and rightly Charged them along with the Appellant. The subsequent removal of the name of the parents of the victim in the Charge for no reason known to law was in my view prosecutorial blunder and indiscretion. It is condemnable. This

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is because the parents of the victim were supposed to have received even greater punishment for sacrificing their own daughter to be taken abroad for prostitution.

In the premise, this appeal succeeds in part. Having failed to charge PW2 and PW3 along with the Appellant, this file is remitted back to the Chief Judge of Edo State for a fresh trial which must include PW2 Osagie Idigie father of PW1 (the victim) and PW3 Juliet Amadin the Step-mother of the victim. Meanwhile, the Appellant is discharged but not on merit.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I had the privilege of reading in draft the lead Judgment just delivered by my learned brother, CHIOMA EGONDU NWOSU- IHEME, JCA (Ph.D).

I agree with the reasoning and conclusion arrived at, that this appeal succeeds in part. I also allow the appeal in part. I abide by the consequential orders made in the lead judgment.

?MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had a preview of the judgment just delivered by my learned brother, Chioma Egondu Nwosu-lheme, JCA. I agree entirely with the decision of my learned brother and I abide by all the orders in the

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leading judgment.

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Appearances:

D. O. Aziegbe with him, M. I. Ogbae (Miss) and D.O. IgbinedionFor Appellant(s)

O. Giwa-Osagie with him, Nelson EkereFor Respondent(s)

 

Appearances

D. O. Aziegbe with him, M. I. Ogbae (Miss) and D.O. IgbinedionFor Appellant

 

AND

O. Giwa-Osagie with him, Nelson EkereFor Respondent