EZUGWU v. STATE (2021)

EZUGWU v. STATE

(2021)LCN/14953(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Wednesday, January 13, 2021

CA/A/1178C/2019

RATIO

EVIDENCE: REQUIREMENT FOR INCONSISTENCIES IN PIECES OF EVIDENCE GIVEN BY PROSECUTION’S WITNESSES WILL VITIATE THE CONVICTION OF A DEFENDANT

The law is trite that inconsistencies or contradictions in pieces of evidence given by prosecution’s witnesses capable of vitiating the conviction of a Defendant in criminal matter must be a material or significant contradictions cutting at the foundation and particulars of the offences or charge against the Defendant. They must be such contradictions casting reasonable doubt on the ingredients of the offences for which the Accused or Defendant is charged.

The contradictions must be material and strong enough to dislodge the charge or ingredients of the offence against the Defendant and in such a case the defendant will not be called upon to defend himself.
The contradictions and inconsistencies must be significant and should be sufficient to exculpate the Defendant/Accused. A minor discrepancy among witnesses in narration of the incidents culminating into the offence for which Defendant was charged will be overlooked by the Court. See:-
1. EMEKA MBACHU V THE STATE (2018) 17 NWLR (PART 1649) 395 AT 407 F – G per I. T. MOHAMMED, JSC now CJN who said:-
“The point needs be re–stated that it is not every trifling inconsistency in the evidence of the prosecution witnesses that is fatal to the prosecution’s case. It is only such contradictions and or inconsistencies which are substantial and fundamental to the main issue before the Court such as would create reasonable doubt in the mind of the trial Court that are fatal to the prosecution’s case. In this case the issue of Appellant coming down from his vehicle or not after the offence had been committed, has, in my view, very little or no relevance.

The fact that the deceased was knocked down by the vehicle driven by the appellant is no more in doubt as confessed also by the appellant himself (pages 23 of the record of appeal).
For a contradiction to be regarded material, it must go to the root of the charge before the Court. It must be one that touches an important element of what the prosecution needs to prove in the case.”
2. UKO IKONO V THE STATE (2020) 6 SCM 59 AT 68 E – H per EKO, JSC who said:-
“It is not enough to submit, as the Appellant’s counsel did, that the evidence of PW1 and PW4 are contradictory on material points. He must show how material the contradictions are; Igbi v. The State (2000) 3 NWLR (Pt. 648) 169 does not say that mere asymmetrical differences in details amount to material contradiction. I am of the firm view that only material contradictions in the case or evidence of the prosecution are fatal to their case. A material contradiction is that which goes to the material point in prosecution’s case, such as to create reasonable doubt in the case and thus entitling the accused person to the benefit of the doubt; Ahmed v. The State (2002) FWLR (pt. 90) 1359 at 1385; (2002) 18 NWLR (PT. 746) 622; Dibie & Ors V. The State (2007) 3 SC (Pt. 1) 176; John Agbo v. The State (2006) 6 NWLR (Pt. 977) 545 at 563 (2006) 2 1; Omogodo v. The State (1981) 5 SC.
Discrepancies in the testimonies of witnesses on peripheral details that do no violence to the substance do not amount to material contradictions. Such peripheral discrepancies should not be the basis for quashing a conviction: Egwumi v. The State (2013) VOL. 220 LRCN (Pt. 1) 225 at 160. (2013) 5 SCM, 139. I agree with the Respondent’s counsel on this.”
3. THE STATE V ALI AHMED (2020) 5 SCM 181 AT 196 C- H per ARIWOOLA, JSC who said:-
“It is pertinent to state that it is settled law that for any conflict contradiction in the evidence of prosecution witnesses to be fatal to the case, the conflict or contradiction must be fundamental to the main issues in question before the Court. See; Onubogu & Anor vs The State (1974) 1 All NLR (Pt.11) 5; Nasamu Vs. The State (1968) NMLR 86; Ibe Vs. State (1992) 5 NWLR (Pt. 244) 642 at 649: Namsoh vs. State (1993) 5 NWLR (Pt.292) 129.
It must be stressed that it is not in all cases where there are discrepancies or contradictions in the prosecutions case that these are fatal to its case. It is only when the discrepancies or contradictions are on a material issue or issues in the prosecutions case which create some doubt in the mind of the trial Judge that the accused is entitled to benefit therefrom. See; Okonji Vs. State (1987) 1 NWLR (Pt. 52) 659; Wankey vs. State (1993) 5 NW1.2 (Pr. 295) 542 at 552.
The conflict in the dates proffered by the prosecution is not substantial or material to the main issue of the case and thereof not fundamental as to adversely affect the case. PER IGE, J.C.A.

CRIMINAL LAW: BURDEN OF PROOF IN ESTABLISHING THE GUILT OF AN ACCUSED

It is the bounden duty of the prosecution under the statute and the constitution to prove or establish the guilt of the Defendant/Accused beyond reasonable doubt. The prosecution must establish the elements or ingredients constituting the offence for which the accused is charged. The Defendant enjoys the presumption of innocence and as such no onus lies on the Defendant to establish his innocence. Conversely, when the prosecution establishes the ingredients of offence charged then evidential onus is on the Defendant to cast doubt on the case of the prosecution. See Section 135(1)(2) and (3) of the Evidence Act which provides:

“135(1) The commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is subject; to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.
(3) If the prosecution proves the commission of a crime, beyond reasonable doubt the burden of proving reasonable doubt is shifted on the defendant.”
This must be read along with Section 36(5) of the Constitution of the Federal Republic of Nigeria (1999) as amended which says:
“36(5) Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty. Provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.” PER IGE, J.C.A.
CRIMINAL LAW: WAYS OF PROVING THE GUILT OF AN ACCUSED

Thus the prosecution is under a duty to prove the components or elements of the offense for which the Accused/Defendant is charged. This can be proved vide any of the following methods viz:
(a) By evidence of an eye witness or witnesses;
(b) Through the confessional statement of the accused or Defendant;
(c) Through circumstantial evidence.
See the cases of:
1. SHUAIBU ABDU V THE STATE (2017) 7 NWLR (Part 1564) 171 AT 186 F-H per SANUSI, JSC who said:
“In all criminal cases the burden of proof squarely lies on the prosecution which always has a duty to prove all the above mentioned ingredients of the offence charged and by the provisions of Section 138 of the Evidence Act, the standard of such proof is nothing less than, proof beyond reasonable doubt. In fact, it is settled law that if there is any doubt in the evidence produced by the prosecution such doubt shall be resolved in favour of the accused person. See: Famakinwa v. The State (2013) 7 NWLR (Pt. 1354) 597: Kala v. Potiskum (1998) 3 NWLR (Pt. 540) 1; David Abaje v. The State (1976) All NLR 139.”
It is apposite to say that in order to prove an offence the prosecution can use any of the following modes of proof namely:
“(1) Evidence of eye witness or witnesses: or
(2) Confessional statement of the accused; or
(3) Through circumstantial evidence.”

S.S. YONGO & ANOR VS COP (1992) 8 NWLR (PART 257) 36 AT 50 per KUTIGI, JSC later CJN RTD. PER IGE, J.C.A.

CRIMINAL LAW: PROVING THE OFFENCE OF CONSPIRACY

It is always difficult to prove the offence of conspiracy by direct evidence and as such the Courts have from time immemorial resorted to drawing inferences from facts and circumstances of each case based on oral and documentary evidence proffered and tendered by the prosecution. There must be evidence and incidence of agreement to commit the alleged offence. See:-
1. EMEGU ODEY VS. THE STATE (2019) 2 NWLR (PART 1655) 97 at 111 D – F per KEKERE-EKUN JSC who said:
“Section 520 (6) of the Criminal Code provides:
“520: Any person who conspires with another to effect any of the other to effect any of the following purposes.
6. to effect any unlawful purpose:
…is guilty of a misdemeanor and is liable to imprisonment for two years.”
In Busari v. The State (2015) LPELR – 24279 (SC) (2015) 5 NWLR (Pt. 1452) 343, 367, paras. D – E this Court held as follows:

“Conspiracy is an agreement of two or more persons to do an act which is an offence to agree to. Evidence of direct plot between conspirators is hardly capable of proof. The bottom line of the offence is the meeting of the minds of the conspirators to commit an offence and meeting of the minds need not be physical. Offence of conspiracy can be inferred by what each person does or does not do in furtherance of the offence of conspiracy.”
2. DAVID OMOTOLA VS THE STATE (2009) 7 NWLR (PART 1139) 148 AT 191 A – H TO 192 A – G. At page 192H TO 193A of the report OGUNTADE, JSC had this to say:-

“In order to get conviction on a count of conspiracy, the prosecution must establish the element of agreement to do something which is unlawful or to do something lawful by unlawful means. Conspiracy is an offence which is difficult to prove because it is often hatched in secrecy. Circumstantial evidence is often used to point to the fact the confederates had agreed on the plan to commit a crime. There must be an overt act from which to infer the conspiracy.” PER IGE, J.C.A.

CRIMINAL LAW: ELEMENTS OF THE OFFENCE OF KIDNAPPING

What then are the elements or ingredients of offence of kidnapping.
I will quote with gratitude from the decisions of apex Court in the land in the following cases viz:
1. BELLO OKASHETU V THE STATE (2016) LPELR – 40611 SC 1 AT 15 – 16 per OGUNBIYI, JSC who said:
“In order for prosecution to succeed under this Count it has to prove the following facts beyond reasonable doubt.
i. That the victim was seized, and taken away
ii. That the victim was taken away against his consent.
iii. That the victim was taken away without lawful excuse.
The offence of kidnapping is complete when the victim is carried away against his wish. See the case of R. V. Court (2004) 4 All ER 137.”
2. RAPHAEL EWUGBA VS. THE STATE (2017) LPELR-43833(SC) 1 at 30 C – E per RHODES – VIVOUR, JSC who said:

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

FELIX EZUGWU APPELANT(S)

And

THE STATE ERESPONDENT(S)

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Kogi State delivered by HON. JUSTICE FOLAJOBI AJAYI sitting at IDAH DIVISION on 19th June, 2019, convicting the Appellant of conspiracy and kidnapping. The Appellant who was 2nd Defendant was sentenced along with the other Co-Defendants and each of them was sentenced to 6 months and 4 years imprisonment respectively without the option of a fine.

The two Count charge reads:
“FIRST COUNT
Statement of Offence
Criminal Conspiracy contrary to Section 97 (1) of the Penal Code
PARTICULARS OF OFFENCE
That you (1) Simeon Ajogwu, (2) Felix Ezugwu (aka) Chaplate (3) Chukwuemeka Okoro Sylvester and Okeme Anene (aka) Ojukwu on or about the 17th day of January, 2018, at Nokwa and Udaba Aji village in Igala-mela/Odolu Local Government Area within the Kogi State Judicial Division agreed to do an illegal act to wit you kidnapped one Mrs. Catherine Adama (nee) Ali of Nokwa Village.
SECOND COUNT
STATEMENT OF OFFENCE
Kidnapping contrary to Section 4(b) of the Kogi State Kidnapping and Other Related Offence (Prohibition) Law 2015.

PARTICULAR OF OFFENCE
That you (1) Simeon Ajogwu, (2) Felix Ezugwu (aka) Chaplate (3) Chukwuemeka Okoro Sylvester and Okeme Anene (aka) Ojukwu on or about the 17th day of January, 2018, at Nokwa and Udaba Aji village in Igala-mela/Odolu Local Government Area within the Kogi State Judicial Division while armed with guns and other dangerous weapons kidnapped one Mrs. Catherine Adama (nee) Ali of Nokwa Village into a bush for three days before she escaped.”

The plea of each of the Defendants was taken on 4th day of October, 2018 when trial commenced. At the end of trial and after the adoption of Written Addresses by Learned Counsel to the parties the learned trial Judge gave considered judgment on 19th June, 2019 and found as follows:
“Before considering the merit or otherwise of the general defence of alibi raised by the defendants it is pertinent to consider a germane issue raised by the 1st Defendants. The 1st Defendant in his extra-judicial statement in Exhibit P6 and his oral testimony in Court conceded that he sustained injury or burn in his hand sometime in December, 2017 from the exhaust of his motorcycle.

According to 1st Defendant the burn occurred when he was riding with a brother. The name of the brother was not mentioned to the police in Exhibit P6 neither was it disclosed in Court. Rather, 1st defendant asserted that he was treated by the chemist in Abi who made the statement in Exhibit P2 to the effect that he had at no time treated 1st defendant of any injury or burn.
Learned counsel for the defendants has submitted that in the absence of the maker; Exhibit P2 cannot be accorded any weight as Defendant had no opportunity to cross-examine the maker. I agree with the submission without any reluctance. Nonetheless, in the absence of evidence from the person with whom 1st defendant was allegedly riding when the burn occurred. I am inclined to take the evidence of 1st defendant as lacking probative value. It seems to me more than mere coincidence that the injury or burnt on one of the abductors as narrated by PW2 in Exhibit P1 and in her oral testimonies would sit so perfectly on the 1st defendant. In the absence of any cogent explanation, by the said defendant, the fact supports a reasonable inference that he was the abductor referred to by PW2. I so find.

Now to the alibi of defendants! Looking at the defence of alibi raised by the defendants, it is manifestly clear that beyond the general assertion that they were in their farms none of the defendants gave any particulars of any other persons who could testify on their whereabout at the time of the incident. The 3rd defendant who stated in Exhibits P9 that he lived with his wife and son, failed to indicate or suggest that he was with his wife at the time material to the offence in order to activate the defence of alibi. I find as a fact that the defence has not been activated a required by law and I do not believe it in the least. The alibi seems weak and an unintelligent afterthought. I believe the evidence of prosecution which fixed the defendants on the scene: Olaiya v. The State (2010) 1 SCNJ 351: Morka v. State (1998) 2 NWLR (Pt. 537) 294: Akeem v. The State (2017) LPELR- 424465 (SC) Pp 24 – 25 and Nomayo v. State (2018) LPELR – 44729 (SC) Pp 16 – 17.
On the whole, I find that the offence of kidnapping has been proved against the defendants. I find also the defence of alibi raised by the defendants is weak ruse that is not entitled to any

weight. I find also that the defendants acted together in circumstances which support the existence of an agreement to prosecute the unlawful mission.
Accordingly, I hold that the offence of conspiracy has also been established as required by law.
The four defendants are hereby convicted for the offence charged.”

After the allocutus each of the Accused/Defendant were sentenced as follows:
Court: I have listened very carefully to the plea for leniency. It is apparent that tile defendants are young persons without any criminal record. There is also information from their counsel that they are married with children to cater for. Against this background, I am inclined to be lenient in the terms to be imposed especially in the light of the provisions of the ACJL which sets on the objectives to be borne in mind (See Section 399 ACJL).
Nonetheless, it must be also be recognized that the penalty for the offence of kidnapping under the relevant law appears to be mandatory in its prescription of a life sentence. Faced with this apparent incongruent situation arising from the provisions of two enactments, it is nonetheless my view that the

Court is entitled to exercise discretion in the matter of sentence by virtue of the provisions of Section 414(1) and (2) of ACJL.
Accordingly, the defendants are sentenced to a term of four years each for the offence of kidnapping and a term of six months each for the offence of conspiracy. The terms shall run concurrently.”

The Appellant was dissatisfied with the verdict and has by his Notice of Appeal filed on 17th September, 2019 appealed to this Court on eight grounds which without their particulars are as follows:
“GROUND ONE:
The Judgment/Decision of the trial Court is unreasonable, unwarranted and supportable having regard to the evidence adduced.
GROUND TWO:
The trial Judge Hon. Justice Fola Ajayi erred in law in convicting the appellant when the prosecution has failed to prove its case beyond reasonable doubt.
GROUND THREE:
The trial Court erred in law when it held as follows:
“She gave the names of the four defendants as the names she heard. Further, there is also evidence from PW 1 and PW5 that immediately after her return PW2 informed them that she could recognize 1st, 3rd and 4th defendants as

some of the abductors. The disclosures to PW1 and PW5 is in my view sufficiently prompt and have been offered not as the truth of what was said but the fact that PW2 made disclosure of person she recognized as her abductors at the earliest opportunity.”
GROUND FOUR:
The trial Judge Hon. Justice Fola Ajayi misdirected himself when he held as follows:
“It is settled law that where a contradiction exists in the case presented by the prosecution, the Court most (sic) look at the evidence adduced to see if there is explanation for the apparent contradiction and where no explanation is offered the Court should not speculate or proffer an explanation or chose to pick from prosecution’s evidence. See Onubogu & Anor v. State (1974) 9 SC 1: Arehia v. State (1982) LPELR 543 (SC) Pp 11 – 12 and Ibeh v. State (1997) LPELR – 1389 (SC) pp 49 – 50.
On this score, I have carefully examined the evidence adduced by prosecution to see if any explanation exists for the contradiction in the testimonies of the witnesses referred to an particularly in Exhibit P1 and the oral evidence of PW2. I am unable to find any. In effect, I find as a fact that

contradiction exists in the testimonies of PW2, PW3 and PW5 Exhibit P1 on the fact whether or not the 1st and 4th defendants were known to PW2 before the abduction in issue.”
GROUND FIVE:
The trial Judge Hon. Justice Fola Ajayi misdirected him when he held thus:
Learned Counsel for the defendants has submitted that in the absence of the maker, Exhibit P2 cannot be accorded any weight as defendant had no opportunity; to cross-examine the maker. I agree with the submission without any reluctance. Nonetheless, in the absence of evidence from the person with whom 1st defendant was allegedly riding when the burn occurred, I am inclined to take the evidence of 1st defendant as lacking probative value. It seems to me more than mere coincidence that the injury or burnt on one of the abductors as narrated by PH’ ‘2 in Exhibits P1 and in her oral testimonies would sit so perfectly on the 1st defendant. In the absence of any cogent explanation, by the said defendant, the fact supports a reasonable inference that he was the abductor referred to by PW2. I so find”
GROUND SIX:
The trial Judge, Hon. Justice Fola Ajayi erred in law in its

failure to properly evaluate the evidence before it and proceeded in this error to make pervade finding in favour of the respondent and against the appellant.
GROUND SEVEN:
The trial Judge, Hon. Justice Fola Aayi erred in law when he held that:
“On the whole, I find that the offence of kidnapping has been proved against the defendants. I find also the defence of alibi raised by the defendants is weak ruse that is not entitled to any weight.
I find also that the defendants acted together in circumstance which support the existence of an agreement to prosecute the unlawful mission.
Accordingly, I hold that the offence of conspiracy has also been established as required by law.’
GROUND EIGHT:
The trial Judge, Hon. Justice Fola Ajayi erred in law in his failure to properly evaluate the evidence of the parties before it and proceeded in this error to convict the appellant for the offences.”

The Appellant’s Brief of Argument dated 22nd April, 2020 was filed on 27th April, 2020, while the Respondent’s Brief of Argument dated 27th August, 2020 was filed on 28th August 2020. The Appellant’s Reply Brief of Argument on point of law dated 13th October, 2020 was filed on 15th October, 2020 and deemed filed on the same date.

The Appellant’s Learned Counsel ACHINIKE G. WILLIAMS-WOBODO ESQ. distilled three issues for determination viz:
1. “Was the Trial Court right when it held that the contradictions in the prosecution’s evidence were not material and therefore not fatal to the prosecution’s case (Grounds 4, 9 and 10)
2. Was the trial Court right when it held that the Prosecution established the offence of kidnapping and conspiracy against the Appellant” (Grounds 2, 3 and 7)
3. Whether the Trial Court properly evaluated available evidence before it relied on same to convict the Appellant? (Grounds 1, 5, 6 and 8)

The three issues will be taken together.
Under issue 1 the Learned Counsel stated that the issue is very narrow as according to him the Appellant generally demonstrated at the Court below that there were material contradictions in the evidence of prosecution witnesses leaving apparent doubts and gaps in the testimonies of the prosecution’s witnesses. He itemized them as follows:

“1. That PW2 who was kidnapped stated in her statement to the Police which he said was made over a month after the incident, that she knew the Defendants whereas in her testimony before the Court she said she did not know them before but she heard them calling each other nick names and she knew Appellant thereby.
2. That the said PW2 was unable to link Appellant to any of the names mentioned in Exhibit P1.
3. That PW2 was abducted on 17/1/2018 according to her but PW5, her son stated that they got a call on 19/1/2018 to come to Nimgbo Community to pick PW2 which they did.
4. That PW2 testified that when she got home she told the vigilante that her abductors were “Emeka” “Ojukwu” and “chaplate” but PW5 told the Court that her mother informed him that her abductors were 1st and 4th Defendants but that no evidence as to how she was able to link those names to and his Co-Defendants.
5. That the investigators (PW3 & PW4) accounts were contradictory in that PW3 claimed the parade took place on 23/2/2018 with 11 persons with Accused persons but PW4 claimed the identification took place on 28/2/2018 with 14 persons.”

The Learned Counsel stated that all these contradictions were not resolved and that the lower Court found so yet it held the contradiction as not material. He urged this Court to set aside the findings of the lower Court relying on the case of ONUBOGU VS. STATE (1974) 9 SC 1. He also submitted that the identification parade violates the principles of law laid down in the case of ADAMU V. STATE (2013) LPELR – 20770 CA per OMOLEYE, JCA as to how identification parade must be conducted and the importance of clear evidence of identification of a Defendant in Criminal Cases. He relied on the cases of;
1. WORU V. STATE (2011) ALL FWLR (PT. 602) 1644
2. OLALEKAN V. STATE (2001) LPELR 2561 SC 10 and
3. COP V. AMUTA (2017) LPELR – 41386 SC 22 per PETER-ODILI, JSC.

He opined that failure of the learned trial Judge to discard the contradictory evidence of prosecution’s witnesses has occasioned miscarriage of justice. He urged the Court to resolve issue 1 in Appellant’s favour.

Learned Counsel to the Appellant argued issues 2 and 3 together. Learned Counsel to the Appellant submitted that the onus is on the prosecution to prove its case beyond reasonable doubt against the Defendant and that any doubt must be

resolved in Defendant’s favour. He relied on the cases of;
1. OMOTOLA V. THE STATE (2008) 2 FWLR (PT. 418) 2190
2. UDOSEN V. THE STATE (2007) 4 FWLR (PT 388) 5721 and
3. ISAH V. STATE (2008) LPELR 1542 (SC) Pp 9 – 10.

He reiterated the issue of discrepancies and contradictions in prosecution’s case as enough to entitle the Appellant to an acquittal. He relied on page 117 of the record to the effect that learned trial Judge copied the PW2’s statement to submit that PW2 was tutored and PW2’s evidence was an afterthought as according to him PW2 failed in her evidence to link Appellant with the commission of the offences charged. He relied on pages 93 – 94 of the record. That the trial Judge failed to properly direct his mind on the contradictions in the evidence of prosecution relating to identification parade. He urged the Court to interfere with the findings of the lower Court in that the evidence of prosecution’s witnesses (PW1 – PW6) amounted to hearsay evidence. That the lower Court misdirected itself on the evidence of identification of the Appellant.

That reasonable doubts exists in this case and it has led to perverse finding and miscarriage of justice.
The Learned Counsel to the Appellant also accused the lower Court of failing to consider the defence of the Appellant including his defence that PW2 did not identify him as one of her abductors. That the failure occasioned a miscarriage of justice relying on OLAYINKA VS. THE STATE (2007) LPELR 2580 (SC) 28 – 29. That the Learned trial Judge seemed to have held that because 1st Defendant failed to call a particular witness that means the 1st Defendant lied or guilty. That the procedure is wrong. That even if 1st Defendant has lied about the wound on his body and even if Appellant lied also, that will not amount to prove of the case for which the Defendants were charged. He submitted that the charge of conspiracy was not established against the Appellant. That the trial Court wrongly shifted onus of proof on the Defendants and that this negate the presumption of innocence accorded Appellant under Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 as amended, relying on the case of NWEZE V. STATE (2017) LPELR 42344 SC P14 and Section 36(1) of the Constitution which provides that “no person who is tried for

a criminal offence shall be compelled to give evidence at trial” He also relied on Section 181 of the Evidence Act. He submitted that no case of conspiracy or kidnapping was made out against the Appellant by the prosecution. He further urged this Court to hold that that lower Court did not properly evaluate the evidence and did not weigh the evidence placed before. He urged the Court to resolve the 2nd and 3rd issues against the Respondent and allow the Appellant’s appeal and set aside the conviction and sentenced on the Appellant.

In response to the submissions of the Appellant the Learned Counsel to the Respondent ATULE E. STANLEY Esq. submitted that the prosecution has discharged the burden of proving its case beyond reasonable doubt to warrant the conviction of the Appellant by the trial Court. He agreed that onus is on the prosecution to prove the guilt of the Defendant. He relied on the cases of IDEMUDIA V. STATE (2015) LPELR 24835 SC and OBIAKOR V. THE STATE (2002) 6 SCNJ 193 at 202. He submitted that the prosecution was able to establish its case through the evidence of PW1 who he said gave cogent evidence which was not controverted under cross-examination to prove the guilt of the Appellant.

That all the ingredients of the offence were established. That proved beyond reasonable doubt does not mean proof beyond any shadow of doubt relying on the case of ODOGWU V. STATE (2019) LPELR – 48292 CAP 10 – 11.

That apart from evidence of PW1 that was cogent, direct and compelling PW2 proved that she was forcefully seized and taken away into bush against her wish and after spending four days with the Appellant and escaped. That PW2 gave evidence of how she was put on motorcycle by her abductors and fell on the Motorcycle whereby both PW2 and 1st Defendant fell down and suffered burns from the motorcycle exhaust. That she was blindfolded and taken into the bush. That PW2 gave vivid account of what happened in the bush and how she came to know the Defendants.

That extra judicial statements of 1st and 3rd Defendants show they listed names of Felix, Anene, Chukwu or Emeka at pages 7 – 11 and 21 – 22 of the record of proceedings as person or men of NSCDC who arrested them. That the Appellant in his extra judicial statement at page 3 of Supplementary Record of Appeal equally went further to state his nickname to be “Chaplate” on pages 5 – 6 of supplementary record of appeal.

That at page 45 of the record the Appellant admitted that he was identified by PW2 from the midst of people paraded. He relied on the case of SULAIMON V STATE (2018) LPELR TSAMMANI, JCA.

On the allegation of contradiction of the extra judicial statement of PW2 and her oral evidence before the trial Court, the Respondent learned Counsel stated that there are no material contradictions in PW2’s evidence and that the contradictions spotted are minor and do not go to root of prosecution’s case. He relied on the case of OCHANI VS STATE (2017) LPELR – 42352 EGWUCHE VS STATE (2018) LPELR – 43975 (CA). He state that the said PW2 gave good explanation as to the contradiction during cross examination to the effect that she was not hearing well at the time the statement was made.

On the offence of conspiracy charged, the Respondent’s learned Counsel itemized ingredients of conspiracy and submitted that conspiracy is a matter as inference and that in this case there are enough pieces of evidence on record showing that the Appellant and Co-accused actually conspired together to

commit the offence and that they were arrested together from the same house with Simeon Ajogwu who was recently convicted by this Honourable Court.

On whether PW2 properly identified the Appellant at parade, the learned Counsel to the Respondent referred the Court to the evidence of PW2 to the effect that he was abducted on 17th January, 2018 and spent about 4 days with the abductors before her escape and that she lodged a complaint with vigilante before her son took her for medical checkup and treatment. That the Appellant did not at any time even at the trial denied being Felix Ezugwu and that his nick name is “CHAPLATE”.

That the Appellant did not object to his extra judicial statement when it was tendered and the fact that he admitted in his statement that his name is also Chaplate. He submitted that the prosecution proved its case beyond reasonable doubt.

Further on alleged contradictions in the evidence of prosecution witnesses, the Respondent’s learned Counsel stated that they are minor contradictions that cannot avail the Appellant. He relied on the case of OKASHETU VS STATE (2016) LPELR – 40611 SC AT 30 – 31. That PW2 was able to pin

the name “Chaplate” to Appellant who he said voluntarily stated the name in his extra judicial statement. He relied on the case of OMOTOLA & ORS V STATE (2009) LPELR – 2663 SC 49.

On whether there was proper evaluation of the pieces of evidence given by the witnesses, the learned Counsel to Respondent submitted that evaluation of evidence is the responsibility of the lower Court and that in this case the lower Court properly evaluated the evidence. He relied on AKPAGHER V GBUNGU (2015) 9 NWLR (PT. 1440) 209 AT 213.

He concluded his submission by contending that the prosecution has proved the guilt of the Appellant beyond reasonable doubt. He urged the Court to dismiss the appeal and affirm decision of lower Court.

The Appellant’s Reply Brief is a complete reharsh of submissions already made or canvassed in the main Brief of the Appellant except response made to Respondent’s submission on the exclusion of Appellant’s extra judicial statement where he admitted he is also known as Chaplate from the record. The Appellant submitted that the extra judicial statement was tendered as exhibit already by the Respondent at the trial.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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RESOLUTION OF ISSUES
The most focal point under issue one raised by the Appellant is that there were a lot of material contradictions in the evidence of PW2 MRS CATHERINE ADAMA who was kidnapped vis-a-vis the oral testimonies of PW5, PW3 and PW4 majorly on how she was able to identify the Appellant and how she was able to pin nickname ‘CHAPLATE” on the Appellant. The alleged contradictions have already been highlighted from the submissions of learned Counsel to the Appellant.

The learned trial Judge agreed there were some contradictions in the pieces of evidence given by the said witnesses but learned trial Judge found that they did not strike at the root of the prosecution case.

(2002) 18 NWLR (PT. 746) 622; Dibie & Ors V. The State (2007) 3 SC (Pt. 1) 176; John Agbo v. The State (2006) 6 NWLR (Pt. 977) 545 at 563 (2006) 2 1; Omogodo v. The State (1981) 5 SC.
Discrepancies in the testimonies of witnesses on peripheral details that do no violence to the substance do not amount to material contradictions. Such peripheral discrepancies should not be the basis for quashing a conviction: Egwumi v. The State (2013) VOL. 220 LRCN (Pt. 1) 225 at 160. (2013) 5 SCM, 139. I agree with the Respondent’s counsel on this.”
3. THE STATE V ALI AHMED (2020) 5 SCM 181 AT 196 C- H per ARIWOOLA, JSC who said:-
“It is pertinent to state that it is settled law that for any conflict contradiction in the evidence of prosecution witnesses to be fatal to the case, the conflict or contradiction must be fundamental to the main issues in question before the Court. See; Onubogu & Anor vs The State (1974) 1 All NLR (Pt.11) 5; Nasamu Vs. The State (1968) NMLR 86; Ibe Vs. State (1992) 5 NWLR (Pt. 244) 642 at 649: Namsoh vs. State (1993) 5 NWLR (Pt.292) 129.
It must be stressed that it is not in all cases where there are discrepancies or

contradictions in the prosecutions case that these are fatal to its case. It is only when the discrepancies or contradictions are on a material issue or issues in the prosecutions case which create some doubt in the mind of the trial Judge that the accused is entitled to benefit therefrom. See; Okonji Vs. State (1987) 1 NWLR (Pt. 52) 659; Wankey vs. State (1993) 5 NW1.2 (Pr. 295) 542 at 552.
The conflict in the dates proffered by the prosecution is not substantial or material to the main issue of the case and thereof not fundamental as to adversely affect the case.

The victim of the kidnapping PW2 gave vivid evidence of how the Defendants were calling each other nicknames and she knew Appellant as the one being called “Chaplate”. She also gave evidence that one of them that carried her on motorcycle had accident with her on the bike and both of them fell and the exhaust pipe of the motorcycle rested on their bodies and gave them burns. This was shown to the Court. There is evidence on record that the four Defendants in this criminal matter including the Appellant were arrested in the same house. The Appellant made statement wherein he

categorically admitted that he is otherwise known as “Chaplate” and that so many people knew him by name “Chaplate”

In the particulars of the Counts contained in the charge against the Appellant and Co-Defendants, Appellant was referred to as “FELIX EZUGWU” (aka “Chaplate”) and he owned up to the name in his statement to the Police.

At pages 5 – 6 of the Supplementary Record of Appeal which contained the Appellant’s statement he stated thus:-
“I have a nickname called Chaplate everybody who knows me know that my nickname is Chaplate. All the suspect call me by my nickname Chaplate.”

The is a solid corroboration of the evidence of PW2 and other prosecution witnesses that the Appellant is known as Chaplate and one of the offenders who abducted the PW2.

It is quite interesting to note that, the Appellant’s learned Counsel did not rebut the submissions of Respondent’s Counsel in paragraph 4.12 of the Respondent’s brief to the effect that Appellant was arrested at the same place and Appellant never denied that his nickname is “Chaplate”.

The Appellant’s learned Counsel admitted the making of such statement and stated that the statement was tendered as Exhibit at the trial. The exhibit confirms the evidence of the PW2 and PW3, PW4 and PW5 that Appellant was among the kidnappers that abducted the PW2.

Issue 1 is resolved against the Appellant.
Under issue 2 and 3 the Appellant had complained that prosecution failed to establish offence of kidnapping and conspiracy against the Appellant.

It is also the contention of the Appellant that the lower Court did not properly evaluate the available. evidence before convicting Appellant.

“135(1) The commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is subject; to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.
(3) If the prosecution proves the commission of a crime, beyond reasonable doubt the burden of proving reasonable doubt is shifted on the defendant.”
This must be read along with Section 36(5) of the Constitution of the Federal Republic of Nigeria (1999) as amended which says:
“36(5) Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty. Provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.”
Thus the prosecution is under a duty to prove the components or elements of the offense for which the Accused/Defendant is charged. This can be proved vide

any of the following methods viz:
(a) By evidence of an eye witness or witnesses;
(b) Through the confessional statement of the accused or Defendant;
(c) Through circumstantial evidence.
See the cases of:
1. SHUAIBU ABDU V THE STATE (2017) 7 NWLR (Part 1564) 171 AT 186 F-H per SANUSI, JSC who said:
“In all criminal cases the burden of proof squarely lies on the prosecution which always has a duty to prove all the above mentioned ingredients of the offence charged and by the provisions of Section 138 of the Evidence Act, the standard of such proof is nothing less than, proof beyond reasonable doubt. In fact, it is settled law that if there is any doubt in the evidence produced by the prosecution such doubt shall be resolved in favour of the accused person. See: Famakinwa v. The State (2013) 7 NWLR (Pt. 1354) 597: Kala v. Potiskum (1998) 3 NWLR (Pt. 540) 1; David Abaje v. The State (1976) All NLR 139.”
It is apposite to say that in order to prove an offence the prosecution can use any of the following modes of proof namely:
“(1) Evidence of eye witness or witnesses: or
(2) Confessional statement of the accused; or
(3) Through circumstantial evidence.”

S.S. YONGO & ANOR VS COP (1992) 8 NWLR (PART 257) 36 AT 50 per KUTIGI, JSC later CJN RTD.
In effect the elements of offence of conspiracy and kidnapping must be established against the Appellant.

I am of the solemn view that the evidence of PW2, PW1, PW3, PW4 and PW5 and the statement of the Appellant contained in the Supplementary Record Exhibit 7 which was tendered and admitted on pages 99 – 100 of the record of appeal without objection all eminently established a case of criminal conspiracy to do an illegal act to wit: kidnapping PW2- MRS CATHERINE ADAMA.

“Kidnapping contrary to Section 364 (2) of Criminal Code. When a person is detained unlawfully, the offence of kidnapping is established. The offence of kidnapping is proved beyond reasonable doubt when the appellant and his co-accused persons bound and blindfolded the respondent and dumped her in the back seat of her car and drove off. The charge of kidnapping contrary to Section 364 (2) of the Criminal Code was proved beyond reasonable doubt.”
All the pieces of evidence led against the Appellant have proved beyond reasonable doubt that the Appellant took active part in the kidnapping of the PW2. The Appellant was rightly found guilty by the lower Court and was properly sentenced.

On whether the lower Court properly evaluated the evidence relied upon to convict the Appellant I adopt my reasoning under issue 2 to hold that the lower Court diligently evaluated the pieces of evidence led at the trial Court and was right in its findings that the prosecution has proved its case against the Appellant. The judgment cannot be faulted.

Issues 2 and 3 are resolved against the Appellant. Having resolved all the issues raised for determination by the Appellant against him, the Appellant’s appeal fails

and it is hereby dismissed in its entirety. The judgment of the High Court of Justice Kogi State delivered on 19th June, 2019 is HEREBY AFFIRMED. The conviction and sentence imposed upon the Appellant are hereby affirmed.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the advantage of reading in advance the judgment just delivered by my learned brother, Peter Olabisi Ige, JCA.

I agree with the reasoning and conclusion reached therein. I therefore dismiss the appeal. I also affirm the judgment of the High Court of Justice Kogi State delivered on 19th June, 2019.

MOHAMMED BABA IDRIS, J.C.A.: I read the draft judgment just delivered by my learned brother; PETER OLABISI IGE JCA. I agree with the reasoning, conclusion and orders therein.

Appearances:

G. WILLIAM WOBODO, with him, LEVI E. NWOYE, ESQ. and E. ANYANONU, ESQ. For Appellant(s)

STANLEY E. ATULE, ESQ., ASST. DIRECTOR, KOGI STATE MINISTRY OF JUSTICE, with him, OJOMA ETUBI, ESQ., LEGAL OFFICER and NIMA RABIU, ESQ., LEGAL OFFICER For Respondent(s)

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