GITATA v. STATE (2020)

GITATA v. STATE

(2020)LCN/14194(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, May 29, 2020

CA/A/47C1/2018

Before Our Lordships:

Adamu Jauro Justice of the Court of Appeal

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Bitrus Gyarazama Sanga Justice of the Court of Appeal

Between

IBRAHIM GITATA APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

STANDARD OF PROOF OF A CRIMINAL TRIALS

The law is long settled that in a criminal trial, the prosecution is duty bound to prove its case beyond reasonable doubt. This is the import of Section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which presumes an accused innocent until he is proven guilty. The burden placed on the prosecution is not discharged until the guilt of the accused person is properly established. See IDEMUDIA V. THE STATE (1999) 7 NWLR (Pt. 610) 202 at 215 F-G; ESANGBEDO V. THE STATE (1989) 4 NWLR (Pt. 113) 57. PER JAURO, J.C.A

INGREDIENTS OF THE CRIMINAL OFFENCE OF CONSPIRACY

The Appellant alongside two others were charged with the offences of criminal conspiracy and kidnapping under Section 97(1) of the Penal Code and Section 3(3) (b) of the Kogi State Kidnapping, Thuggery and Other Related Offences (Prohibition) Law, 2010 respectively. In a bid to discharge the evidential burden imposed on it by law, the Respondent called three witnesses and tendered four exhibits which are the confessional statements of the Appellant and the other accused persons which were marked Exhibits P1, P2 and P3 respectively. Also the “Bond to Produce Exhibit in Police Station/Court” executed by PW2 on 21/2/2015 was admitted in evidence as Exhibit P4. The Appellant testified in his defence wherein he retracted the confessional statement attributed to him by the Respondent. I agree with learned counsel to the Appellant that on the offence of Conspiracy under Section 97(1) of the Penal Code, the prosecution is duty bound to prove the following ingredients beyond reasonable doubt:
a. That there was an agreement or confederacy between at least two or more persons.
b. That the agreement or confederacy was to commit a crime or carry out an unlawful act or to carry out a lawful act by an unlawful means. PER JAURO, J.C.A.

PROOF OF THE OFFENCE OF KIDNAPPING

And in respect of the offence of Kidnapping, I am also on the same page with learned counsel to the Appellant that to secure the conviction of an accused person for the said offence, the prosecution bears the burden of proving that:
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. PER JAURO, J.C.A.

PROOF OF EVIDENCE IN A CRIMINAL OFFENCE

The law is settled that the prosecution can prove its case against the accused person by all or any of the following means:
a) Evidence of any eye witness of the crime;
b) Confession or admission when voluntarily made by the accused; and

c) Circumstantial evidence which is positive, compelling and points to the conclusion that the accused committed the offence.
See the case of OJO V. STATE (2018) LPELR – 44699 (SC).

To ascertain whether the Respondent has discharged the burden and standard of proof is a question to be determined after revising the evidence adduced at trial. It must be stated that the Appellant made a confessional statement at the SARS office in Lokoja. The statement was admitted in evidence but the Appellant retracted his confession. The law is trite that a retracted confessional statement is admissible however, before the Court can convict the accused person, it must look for other independent evidence adduced by the prosecution for the purpose of ascertaining if the confession is true or probable. See the case of HASSAN V. STATE (2001) LPELR – 1358 (SC). PER JAURO, J.C.A

CALLING OF ALL MATERIAL WITNESSES

The law is trite that the prosecution is duty bound to call all material witnesses in order that the whole facts may be put before the Court and failure to call them is fatal to the prosecution’s case. See MOHAMMED V. NIGERIAN ARMY (2016) LPELR – 41594 (CA). However the law is equally trite that the prosecution need not call a host of witnesses on the same point where there is a vital point in issue and there is a witness whose evidence will settle it one way or the other. In the case under consideration, I am of the candid view that the corroborated evidence of PW1, who was the victim and undoubtedly an eye witness has settled the vital points that the Respondent was duty bound to prove at trial. So therefore, their failure to call the said Haruna Joji or the said Bature or Saleh is not fatal to the case of the Respondent as submitted by the Appellant. PER JAURO, J.C.A.

ADAMU JAURO, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Kogi State, sitting in Idah delivered by Honourable Justice F. Ajayi on the 15th day of December, 2016. The learned trial judge in the said judgment convicted the Appellant and sentenced him to imprisonment for life for the offences of Criminal Conspiracy and Kidnapping contrary to Section 97(1) of the Penal Code and Section 3(3) (b) of the Kogi State Kidnapping, Thuggery and Other Offences (Prohibition) Law, 2010.

BRIEF STATEMENT OF FACTS
The Appellant herein was jointly charged along two others for the offences of conspiracy to commit kidnapping and kidnapping contrary to Section 97(1) of the Penal Code and Section 3(3)(b) of the Kogi State Kidnapping, Thuggery and Other Offences (Prohibition) Law, 2010. The said charge at page 2 of the Record of appeal is hereunder reproduced as follows:
“That you, Ibrahim Abubakar Jale, [2] Ibrahim Gitata [3] Musa Bahago and others presently at large sometime in the month of October, 2015 at Ugbedomagwu village in Igalamela/Odolu Local Government Area within the Kogi State

Judicial Division agreed to do an illegal act to wit, to kidnap one Liman Joji and that the same act was done in pursuance of the agreement and you hereby committed an offence punishable under Section 97[1] of the Penal Code.
That you, Ibrahim Abubakar Jale, [2] Ibrahim Gitata [3] Musa Bahago and others presently at large sometime in the month of October, 2015 at Ugbedomagwu village in Igalamela/Odolu Local Government Area within the Kogi State Judicial Division kidnapped one Liman Joji while armed with dagger and you thereby committed an offence punishable under Section 3 of the Kogi State Kidnapping, Thuggery and other related offences (prohibition) Law 2010.”

The case of the Respondent as prosecution in the Court below was that the Appellant and his co-accused conspired to kidnap and did kidnap one Liman Joji, an eleven year old boy at the time of the commission of the offence sometimes in 2015. It is the case of the Respondent that the Appellant and his co-accused kidnapped the said Liman Joji (who testified as PW1) while he was rearing his father’s cattle at Ugbedemagu, Kogi State and kept him for two weeks before he was released upon

the payment of ransom. That one Alhaji Joji Mohammadu, the father of the victim and who testified as PW2 at the trial stated that upon the kidnap of his son, he found his shoe at the road side and a phone number written on a piece of paper left in the shoe. The Respondent through the said witness stated further that PW2 called the number written on the piece of paper and the kidnappers answered the call and demanded for a ransom. According to the testimony of PW2, the ransom was negotiated and it was agreed that the sum of N300,000.00 (Three Hundred Thousand Naira) be paid for the release of PW1 and that PW1 was eventually released upon payment of the agreed sum.

That the matter was reported to the police and the Appellant and the other accused persons were arrested. The Respondent further stated that the SIM card was found on the Appellant and his co-accused and the card was inserted into a phone. That the police asked them to call the telephone number on which the ransom was negotiated and same rang. According to the Respondent, one of the co-accused of the Appellant confessed on how they shared their ransom and how much was remaining as part of his

own share. The Respondent stated further that the police accompanied the accused person home and the money was recovered from him. The Respondent through one Corporal Musa Jacob (PW3) stated that the case was transferred to his station and the accused persons volunteered statements to him after due caution. The said statements were tendered and admitted in evidence at trial as Exhibits P1, P2 and P3. PW3 also testified to the effect that the money recovered from the accused persons had been returned to PW2 who entered into a bond to produce the Exhibit at the Police Station and that the bond was admitted in evidence through the said witness as Exhibit P4.

At the close of the Respondent’s case, the Appellant testified in defence of the charge. The Appellant denied his involvement in the offences alleged and also denied making the confessional statement attributed to him. The case of the Appellant was that sometimes in October, 2015, he came to the market in Aloma where the police arrested him and that the following date, some Fulani men appeared and alleged that he kidnapped their child. The Appellant stated in his evidence-in-chief that he knew nothing

about the kidnap and he also denied knowing PW1 and PW2. His testimony is to the effect that he was arrested alone and not in the company of any other person and that at the time of his arrest, he was with the sum of N1, 500. He stated further he made no statement at Aloma Police Station where he spent two days before he was taken to Lokoja. He denied knowing the co-accused until he saw them at Lokoja Police Station.

At the close of trial and the address of counsel to the parties, the learned trial judge in a considered judgment delivered on the 15th December, 2016 found the Appellant and his co-accused guilty of the offences charged and sentenced them to imprisonment for life. (See page 43 of the record of appeal).

Miffed by the decision of the Court below, the Appellant invoked the appellate jurisdiction of this Court vide a Notice of Appeal dated 8th January, 2017 and filed on 13th January, 2017. The said Notice of Appeal containing six grounds of appeal can be found at pages 53 – 59 of the record of appeal.

In line with the Rules of this Court, parties filed and exchanged their respective briefs. The Appellant’s Brief is dated

7th April, 2020 and filed on 8th April, 2020. The said Brief was settled by FRANK IKPE ESQ. who at paragraph 3.0 distilled five issues for the determination of the appeal to wit:
“1. Whether the trial Court was right to have convicted the Appellant upon the uncorroborated unsworn evidence of PW1 and to have placed heavy reliance on Exhibit P2 to convict the Appellant without ascertaining the authenticity vel-non of the Exhibit, same having been retracted. (distilled from ground 5)
2. Whether it amounted to a fair trial for Trial Court to have convicted the Appellant even when the prosecution failed or refused to tender statements made by the Appellant at Aloma Police Station. (distilled from ground 3)
3. Whether the Trial Court was right in convicting the Appellant in the face of irreconcilable material contradictions in the evidence of the prosecution witnesses. (distilled from ground 2)
4. Whether the Trial Court was right when it held that the Prosecution has proved the essential ingredients of the offences of conspiracy and kidnapping beyond reasonable doubt (distilled from grounds 1 and 4)
5. Whether the Appellant was

rightly tried and convicted under the Repealed Kogi State Kidnapping, Thuggery and Other Related Offences (Prohibition) Act, 2010 (Repealed 2015). (distilled from ground 6 of the Notice).

The Respondent’s Brief of argument on the other hand is dated 29th April, 2020 and filed on the same date. The said Brief was settled by OLASOJI O. OLOWOLAFE ESQ., a private practitioner who filed the Respondent’s Brief on the authority of the Hon. Attorney General, Kogi State. Counsel at paragraph 3.0 of the said Brief also distilled five issues for the determination of this appeal as follows:
“1. Whether the learned trial judge was wrong in placing reliance on the testimony of the prosecution witness PW1 as well as the retracted confessional statement of the Appellant among other facts in convicting the Appellant? (Ground 5).
2. Whether the Appellant validly demonstrated at the trial that he made any previous statement before Exhibit P1? (Ground 3).
3. Whether there were material contradictions in the case of the prosecution that can make this Honourable Court interfere with the decision of the lower Court? (Ground 2).

Whether the learned trial judge was wrong in his decision that the prosecution had established the ingredients of the offences of conspiracy to commit kidnapping and kidnapping beyond reasonable doubt? (Ground 1 & 4).
5. Whether the offence of kidnapping which the Appellant was convicted for was no longer a crime in Kogi State by virtue of the alleged repeal of the law under which the Appellant was tried and convicted. (Ground 6).

The appeal was taken on 30th April, 2020 when counsel adopted their respective briefs and made oral adumbration in respect of their contentions in the appeal.

APPELLANT’S ARGUMENT
The Appellant’s first issue was distilled from ground 5 of the Notice of Appeal. The learned counsel to the Respondent in paragraph 4.02 to 4.03 called the attention of this Court to competence of the Appellant’s ground 5 of the Notice of Appeal. It is the contention of counsel that the said ground complains that the judgment of the trial Court is against the weight of evidence. It is the submission of counsel that the ground as contained in the Notice of Appeal is a civil omnibus ground of appeal and not an omnibus ground

of appeal in a criminal appeal of this nature. Relying on the cases of WANKEY V. THE STATE (1993) 5 NWLR (PT. 295) 542 @ 551 – 552; PWAJOK V. NYAM (1994) 2 NWLR (PT. 324) 81 @ 91, he argued that the law is trite to the effect that it is wrong to use a civil omnibus ground in a criminal appeal and vice versa and that where this done, such ground shall be declared incompetent. On the strength of the above, he urged this Court to discountenance ground 5 and the issue 1 formulated therefrom.
Without dissipating much judicial energy on submissions of the Respondent on ground 5 of the Notice of Appeal, while there is a legion of judicial authority to the effect that in civil cases, the proper ground against findings of fact is the omnibus ground, and the judgment is against the weight of evidence, whilst in a criminal appeal it is that the verdict is unreasonable or cannot be supported having regard to the evidence. It goes without saying that there is without doubt a distinction between the general or omnibus ground of appeal in a criminal case and that in a civil case, and the principle underlying such a distinction. Undoubtedly, the

Appellant’s ground 5 of the Notice of Appeal runs foul of the nature of the general grounds of appeal in criminal cases. However, although the ground is stained with incompetence, the Court in an effort to do substantial justice may ignore it and proceed on the merit of the appeal. See the case of OSHO V. STATE (2011) LPELR – 4804 (CA).
On the strength of the above, I shall proceed to consider issue 1 distilled from the ground 5 of the Appellant’s Notice of Appeal on the merit.

On issue No. 1, learned counsel to the Appellant argued that the law is trite that an unsworn evidence of a witness under the age of 14 years requires corroboration. He referred this Court to Section 209 of the Evidence Act, 2011. He submitted that the Court is prohibited from convicting a person for an offence on the unsworn evidence or testimony of a child unless such evidence is corroborated by some material evidence. He submitted further that the unsworn evidence of PW1, (the victim of the offences) requires corroboration and where his testimony is not corroborated by any material evidence, the Court cannot rely on same to convict an accused. He referred

this Court to the cases of OBI V. THE STATE (2016) LPELR – 40543 (CA); ONYEGBU V. THE STATE (1995) 4 NWLR (pt. 391) 510; SAMBO V. THE STATE (1993) 6 NWLR (pt. 300) 399.

It is the contention of counsel that the evidence of PW2, the father of the victim is different from that of the victim; therefore, same is incapable of corroborating the evidence of the victim. It is his submission that PW2 only gave evidence of what he was informed by the eye witness who was never called to give evidence at trial. He submitted further that the evidence of PW2 is largely hearsay and inadmissible in law. He relied on the case ofIKARIA V. THE STATE (2014) 1 NWLR (pt. 1389) 639 p. 651 paras. F- H.

He argued that the law is settled that where a person retracts his confessional statement, the Court should look for independent evidence outside what is contained in the retracted confessional statement to establish or prove the offence. He referred this Court to the case of GABRIEL V. THE STATE (2010) 6 NWLR (pt. 1190) 280. It is the submission of counsel that the trial Court failed to look for independent evidence outside the Appellant’s retracted

confessional statement before convicting him as the evidence of PW1 and PW2 fall short of the requirement of law.

On issue No. 2, counsel argued that the law is settled that all statements made by an accused person in a criminal trial, be they confessional or exculpatory, must be tendered by the Police officer or other security officer that recorded or witnessed its recording. He argued further that if the police tender some and not all the statements made by the accused person, it will result in an unfair trial and consequently an acquittal. He referred this Court to the case of OGUDO V. STATE (2011) 18 NWLR (pt. 1278) pg.1 pp. 31, Paras. E – G; 52 – 53, Paras. G – A.

He submitted that in the instant case, the Appellant at the time he was arrested made statement at Aloma Police Station before he was taken to State CID office Lokoja but that PW3 willfully refused or neglected to tender the exculpatory statement made by the Appellant at the Aloma Police Station because he knew that it was not helpful to his case.

He argued that the law is trite that when a suspect is moved from one Police station to another, the movement

should be with the case of file and Exhibits contained therein. He referred this Court to the case of GABRIEL V. STATE (2010) 6 NWLR (pt. 1190) pg. 280 @ pp. 338 Paras. D – F.

It is the submission of counsel that the failure of the Respondent to transfer and tender during trial the previous statements made by the Appellant at Aloma Police Station is an infringement of the Appellant’s right to fair hearing under Section 36 (6) (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
It is also the submission of counsel that the refusal of the Respondent to tender the previous statement of the Appellant amounts to withholding evidence as provided for under Section 167(d) of the Evidence Act, 2011.

On issue No. 3, counsel submitted that there are irreconcilable material contradictions in the evidence of the Respondent’s witnesses. He argued that the law is settled that where there are material contradictions in the evidence of the Prosecution witnesses, such will be resolved in favour of the accused. He referred this Court to the cases of JEREMIAH V. THE STATE (2012) 14 NWLR (pt. 1320) 240; JIMMY V. THE STATE

(2013) 18 NWLR (pt. 1386) 229, p. 253; OKASHETU V. THE STATE (2016) 15 NWLR (pt. 1534) 126, p. 148 para. A.

He submitted further that the prosecution has failed to perform the onerous task of offering explanations in the testimonies of his witnesses as required by law.

On issue No. 4, it is the submission of counsel that to secure conviction or the offence of conspiracy, the prosecution is duty bound to prove the following vital ingredients beyond reasonable doubt:
“a. That there was an agreement or confederacy between at least two or more persons.
b. That the agreement or confederacy was to commit a crime or carry out an unlawful act or to carry out a lawful act by an unlawful means.”

He referred this Court to the case of EYO V. THE STATE (2013) 1 NWLR (pt. 1335) 324, p. 346, paras. F – G; Section 97(1) of the Penal Code Act.

He submitted that by the totality of the evidence of the Appellant vis-à-vis that of the Respondent, there is no jot of evidence to show that there was an agreement amongst them to commit crime or any offence. He referred this Court to the testimony of the Appellant at page 28

lines 27 and page 30 lines 1, 3 and of the record of appeal. He further submitted that the trial Court erred in law to have relied on the evidence of PW1 and the contents of Exhibit P1 to infer conspiracy. It is also the submission of counsel that the Respondent did not prove the offence of kidnapping against the Appellant beyond reasonable doubt as required by law. He submitted that for the prosecution to ground conviction for the offence of kidnapping, the following ingredients must be proved beyond reasonable:
“1. That the victim was seized and taken away by the accused person.
2. That the victim was taken away against his consent.
3. That the victim was taken away without lawful excuse.”

He referred this Court to the case of OKASHETU V. THE STATE (2016) 15 NWLR (pt. 1534) 126. He submitted that the failure of the Respondent to call those or one of those eye witnesses is failure to call vital witness which is detrimental to his case. He cited the case of IREGU EJIMA HASSAN V. THE STATE (2016) LPELR – 42554(SC). Counsel submitted that the Respondent has failed to link the Appellant to the offences charged. It is also the

submission of counsel that neither the charge nor the proof of evidence in this case made reference to the time and date of the commission of the alleged offence by the Appellant and that failure to do so, occasions a miscarriage of justice and an infraction on the Appellant’s right of fair hearing as encapsulated by Section 36 6(a) (b) and (d) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). He referred this Court to the case of SANI V. THE STATE (2015) 15 NWLR (pt. 1483) 522, p.550, paras. B – D.

On the final issue, counsel submitted that the Kogi State Kidnapping, Thuggery and Other Related Offences (Prohibition) Law, 2010 was repealed in 2015 and therefore not relevant at the time the Appellant as charged with same in 2016. He referred this Court to Section 36(8) of the Constitution (supra). It is the submission of counsel that the trial Court by virtue of Section 122(1) (m) of the Evidence Act, 2011, ought to have taken judicial notice of the said Kogi State Kidnapping, Thuggery and Other Related Offences (Prohibition) Law, 2010 which was repealed in 2015 thereby making the former a non-existing law at the time the

Appellant was charged under it. He further submitted that the provisions and punishment under the 2015 repealed law are not the same as the 2010 law.

On the whole, he urged this Court to resolve all the issues in favour of the Appellant and discharge and acquit him accordingly.

RESPONDENT’S ARGUMENTS
On issue No. 1, learned counsel to the Respondent submitted that the unsworn testimony of PW1 to the effect that he was kidnapped by the Appellant and his other accused persons was corroborated by the evidence of PW2 who testified that they found a sheet of paper inserted in the shoes of PW1 after his kidnap. He submitted further that the evidence of PW2 was to the effect that they called the number and the kidnappers started negotiating the ransom and asked them to drop the ransom somewhere which they did. Counsel submitted further that after the payment of the ransom, PW1 was released. It is his contention that stronger corroborative evidence totally confirming or strengthening the story of PW1 and which irresistibly points to the guilt of the Appellant and his co-accused is the fact that upon their arrest, the police got the number on

which the ransom was negotiated and when the SIM card was inserted into the phone and the number called, it was the same number the accused persons used in demanding and negotiating the ransom. He submitted that the testimonies of PW2 and PW3 in this regard were not challenged under cross-examination and the trial Court rightly accepted them as established and acted upon them. He referred this Court to the cases of OFORLETE V. THE STATE (2000) 12 NWLR (PT. 681) 415 @ 436; OWNERS OF M/V GONGOLA HOPE V. SMURFIT CASES LTD (2007) 9 MJSC 90 @ 106, PARAS. F – G.

Counsel submitted that there were enough materials before the trial Judge to believe the retracted statements of the Appellant and his co-accused. He submitted further that in their statements, they confessed that they were the ones that kidnapped the 11 year old boy and that the boy identified them as his kidnappers having spent two weeks with them. Counsel argued that the law is settled that when it comes to finding of facts that touches on the credibility of witnesses, the appellate Court will not interfere with the decision of the trial Court. He referred this Court to the case of

IDAGU V. STATE (2018) LPELR – 44343 (SC).

On issue No.2, which dwells on the alleged previous statements made by the Appellant which was not tendered by the Respondents, counsel submitted that the Appellant in this case left his assertion that he made an earlier statement at the police station at Aloma bare without any scintilla of evidence to back it up. He submitted further that the fact that the Appellant, through his counsel decided not to confront PW3 with this fact is too fatal to their case. He argued that the law is well settled that it is the person that makes a positive assertion that has the duty of establishing same. He referred this Court to the case of ISEOGBEKUN V. ADELAKUN (2003) 2 NWLR (PART 1337) 140 @ 165, PARAS. G – H; BUHARI V. OBASANJO (2003) 17 NWLR (PT. 850) 192.

On issue No.3, it is the submission of counsel that evidence is said to be materially contradictory when it states the opposite of what the other says on a material point and that the contradiction must be fundamental and substantial before it can affect the case of the prosecution. He cited the cases of ODUNLAMI V. NIGERIAN NAVY (2013) LPELR – 20701 (SC);

ADELE V. STATE (1995) 2 NWLR (PT. 377) 269. It is the submission of counsel that contradictions pointed out by the Appellant’s counsel are not direct opposite of the other assertions and hence cannot be seen to be contradictory or materially contradictory.

On the argument of counsel to the Appellant to the effect that the Kogi State Kidnapping, Thuggery and Other Related Offences Prohibition Law 2010 under which the Appellant was tried and convicted had been repealed in 2015, learned counsel to the Respondent submitted that since the offence for which the Appellant was charged was still an offence in Kogi State, then the submissions of the Appellant goes to no issue. Counsel also submitted that a law is not repealed by proclamation but by another legislative process and that the Appellant failed fatally to cite that the 2015 Law that supposedly repealed 2010 Law under which the Appellant was tried.

On issue No. 4, it is the submission of counsel that the offence of conspiracy can hardly be established by direct evidence but by circumstantial evidence. He cited the case of ADUKU V. FRN (2009) 9 NWLR (PT. 1146) 370. On the offence of

conspiracy, counsel submitted that where the essential ingredients of the principal offence can be established against two or more persons, it is taken that the offence of conspiracy is necessarily ingrained in their criminal confederacy. He submitted that Respondent had established the ingredients of the offence of Kidnapping by way of confessional statement of the accused persons in Exhibits P1, P2 & P3 and also by direct evidence of eye witness of PW1 who was the victim of the crime. He submitted that PW1 vividly identified the Appellant and his co-accused as the ones who seized him against his will and taken away without any lawful excuse other than to ask for ransom. He submitted that PW1 was kept for two weeks which was a time long enough for victim to recognize them.

It is the submission of counsel that the statements of the accused person also corroborated the evidence of the victim and upon this, the Respondent satisfactorily established the ingredients for the offence and the learned trial Judge rightly convicted the Appellant and his co-accused for the offence of Kidnapping.

On the issue of the charge being defective as submitted by

the Appellant’s counsel, learned counsel to the Respondent contended that the trial Court rightly ruled that the issue of defect of the charge ought to have been raised at the point of taking the plea and since they had no objection to the charge as to form, they could not raise it at the point of final address. He referred this Court to the case of MAGAJI V. NIGERIAN ARMY (2008) 8 NWLR (PT. 1089) 338. He submitted that the Appellant did not raise any ground of appeal from this but was salient and decided to argue it through the back door and in the absence of an appeal specifically against that point, the said point remains binding and subsisting against the Appellant. He cited the case of KOYA v. U.B.A. LTD (1997) 1 NWLR (PT. 481) 251 @ 266.

On whether the trial Court ought to have taken judicial notice of the repealed law as submitted by counsel to the Appellant, the Respondent submitted that the kind of judicial notice in this regard is one that ought to have been brought to the attention of the trial judge which the Appellant’s counsel failed to do so.

On the whole, he urged this Court to resolve this issue in favour of the

Respondent, dismiss the appeal and affirm the conviction and sentence of the Appellant by the trial Court.

RESOLUTION
I have perused the record of appeal compiled and duly transmitted in this case; the brief of arguments filed by both parties as well as the issues distilled for determination across the divide. I have also reviewed the evidence adduced at the trial which was relied upon by the trial Judge in reaching his decision that is being challenged now.

Thus; having considered the issues so formulated by the parties and the grounds of appeal duly filed by the Appellant, I consider the below stated issues apt for the determination of the appeal:
“1. Whether from the totality of the evidence adduced by the Respondent at trial, the guilt of the Appellant was proved beyond reasonable doubt?
2. Whether the Appellant was rightly tried and convicted under the Kogi State Kidnapping, Thuggery and Other Related Offences (Prohibition) Act, 2010 (Repealed 2015).”

RESOLUTION
The law is long settled that in a criminal trial, the prosecution is duty bound to prove its case beyond reasonable doubt. This is the import of

Section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which presumes an accused innocent until he is proven guilty. The burden placed on the prosecution is not discharged until the guilt of the accused person is properly established. See IDEMUDIA V. THE STATE (1999) 7 NWLR (Pt. 610) 202 at 215 F-G; ESANGBEDO V. THE STATE (1989) 4 NWLR (Pt. 113) 57.

Respondent.

I agree with learned counsel to the Appellant that on the offence of Conspiracy under Section 97(1) of the Penal Code, the prosecution is duty bound to prove the following ingredients beyond reasonable doubt:
a. That there was an agreement or confederacy between at least two or more persons.
b. That the agreement or confederacy was to commit a crime or carry out an unlawful act or to carry out a lawful act by an unlawful means.

c) Circumstantial evidence which is positive, compelling and points to the conclusion that the accused committed the offence.
See the case of OJO V. STATE (2018) LPELR – 44699 (SC).

As stated earlier, the Respondent called three witnesses and tendered four exhibits. The testimony of PW1 (victim) can be found at page 19 of the record of appeal. Being a child of 11 years old, after the trial Court was satisfied that he possessed sufficient intelligence to give evidence and he understood the

importance of speaking the truth in due observance with the provision of Section 209 (1) of the Evidence Act 2011 (as amended), he testified that:
“Sometimes in October, 2015, I was rearing cattles at Ugbede-Mahu when I was kidnapped to be released when ransom is paid. I know the three accused persons. It was the three accused persons that kidnapped me. I was with the accused persons for a period of two weeks. I was not alone when I was kidnapped. We were two. The second person escaped. His name is Haruna Joji.”

The evidence of PW1 is precise on the facts that he was seized and taken away without his consent and he was taken away without lawful excuse. He also testified that he knows the Appellant and his co-accused having spent two weeks with them. It is vital to state that the law is trite that an unsworn evidence of a witness under the age of 14 requires corroboration. Section 209 (3) of the Evidence Act (supra) provides that:
(3) A person shall not be liable to be convicted of an offence unless the testimony of admitted by virtue of sub-section (1) of this section and given on behalf of the prosecution is corroborated by some other

material evidence in support of such testimony implicating the defendant.
Flowing from the above, it suffices to state that the evidence of PW1 without more is incapable of establishing the guilt of the Appellant. The learned trial judge was not oblivious of the provision of Section 209(3) of the Evidence Act (supra) when he held at pages 40 – 41 of the record of appeal as follows:
“…But by way of abundant caution I proceed to evaluate other evidence in the light of the provision of Section 209(3) of the Evidence Act which prohibits conviction on the unsworn testimony of a child unless such evidence is corroborated by some other material evidence.”

The evidence of PW2, one Alhaji Joji Mohammadu, the father of the victim can be gleaned at pages 19 – 21 of the record of appeal. He testified during his examination-in-chief that:
“Sometimes in October, 2015, PW1 was rearing the cattle and he was kidnapped. PW1 was rearing cattles at Ugbede – Magu. When we were informed about the kidnap of PW1, we gathered and went in search of him, PW1 had no handset but the kidnappers wrote their phone number and put into one of

PW1’s shoes which was placed on the road to where the cattles were. We began to call and speak with the kidnappers through the phone number. We negotiated the ransom for about three days and the kidnappers threatened to kill PW1 if ransom is not paid. We agreed on a ransom of N300, 000. We were instructed on where to drop the ransom. We dropped the ransom at the place indicated by the kidnappers. PW1 was then released.
…When the accused persons were arrested a phone number was recovered from them and when the police inserted the sim card and called the number it turned out to be the number that was used to contact us by the kidnappers. From there, 2nd accused person pleaded with police not to kill him that his share of the ransom is at home. The police accompanied 2nd accused home and recovered the money from where it was kept.”

From the above, it can be established that PW2 was not an eye-witness of the incident. His testimony was helpful to the extent of the role he played in securing the release of PW1 from his abductors and aiding police investigations and based on his evidence, I do not agree with learned counsel to the Appellant

that his testimony is largely hearsay. In the evidence of PW3, one Corporal Musa Jacob at pages 21 – 27 of the record of appeal, he gave an elaborate account of how he took the confessional statements of the Appellant and his co-accuseds. In his evidence at page 26 of the record appeal, he testified that in the course of investigation, he discovered that the money recovered from the accused persons were residue of the money collected from the father of the victim.

In the Appellant’s retracted confession at pages 10 – 11 of the record of appeal, he stated that:
“…Sometimes in October, 2015 myself, Musa Bahago and our master Ibrahim Abubakae Jale arranged and waylaid a Fulani man. The man escaped into the bush and we kidnapped his little boy and took him into the bush. He was with us for two weeks before his parent brought three hundred thousand naira for his release. Initially we demanded for three million naira but because they pleaded we decided to reduce the amount to three hundred thousand naira. I was given one hundred thousand naira as my share. I removed twenty thousand naira from my money and I hide (sic) the

remaining Eighty thousand naira inside the bush. When the vigilante men arrested us, they collected (our) the money with me but on reaching the police station, I confessed to the whereabouts of the remaining balance and it was recovered. I knew it is a crime before I involved myself. It was Ibrahim Abubakar Jale that introduced me into kidnapping.”

After considering the evidence of the Respondent’s witnesses vis-à-vis the Appellant’s confessional statement at 10 – 11 of the record of appeal, I am left with no other reasonable choice than to hold that the retracted confessional statement was probable. Evaluating the evidence adduced by the Respondent’s witnesses vis-à-vis the Appellant’s confessional statement, the learned trial judge at pages 41- 42 of the record of appeal held that:
“With these guidelines, I have carefully examined Exhibits P1, P2 and P3 and the evidence adduced through PW1, PW2 and PW3. I find as a fact that the confessional statements contain facts of personal information that would otherwise be unknown to the police. The statements provide more detail explanation and indeed

corroboration of the facts stated by PW1 and PW2 in their evidence. In addition, Exhibit P4 materially corroborates the evidence of prosecution that unspent part of the ransom recovered from the accused persons as stated in the confessional statements has been released under bond to PW2. Furthermore, while the evidence of the prosecution showed that the accused persons committed the offences, there is nothing in the evidence of the accused persons to suggest that they had no opportunity to commit the offences…
Against the background stated above, I have no iota of doubt that the accused persons made Exhibits P1, P2 and P3 in which they confessed to the offences.”

From the thorough and impeccable evaluation of the evidence on record by the trial Court, I cannot but agree with the above evaluation of evidence by the learned trial judge. After all, the primary duty of the trial Court is the evaluation of evidence as it has the singular opportunity of hearing and watching the demeanour of witnesses. As a result, it is not necessary to disturb the said findings of the trial Court as the learned trial judge displayed a thorough understanding of the

principles of our criminal jurisprudence in his evaluation of the evidence led by the parties.

In the Appellant’s testimony at pages 30 – 31 of the record of appeal, he merely denied all the charges and I agree with the learned trial judge that there is nothing in the evidence of the Appellant to suggest that he had no opportunity to commit the offences.

Learned counsel to the Appellant made concerted efforts in paragraphs 7.2 – 7.3 of the Appellant’s briefs to draw the attention of this Court to the inconsistencies in the case of the Respondent which according to counsel are fatal to the Respondent’s case. However, I am of the opinion that the inconsistencies so pointed out by counsel are incapable from subtracting from the standard of proof discharged by the Respondent through its witnesses. For example, the fact that PW1 in his evidence-in-chief at page 19 of the record of appeal stated that the incident happened around 5:00pm whereas, under cross-examination at page 20 of the record of appeal, PW2 stated that the incident occurred around 3:00 is not sufficient contradiction to show that PW1 was not kidnapped.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Also the fact that PW3 in his evidence-in-chief stated that the sum of N180, 000.00 was recovered from the accused persons while under cross-examination, testified that the total sum of money recovered from the accused is N183,000.00 does not undermine the fact that the remainder of the ransom paid to the Appellant and his co-accused persons was recovered from them. Evidence is said to be contradictory when it states the opposite of what the other says on a material point. The contradiction must be fundamental and substantial before it can affect the case of the prosecution. See the case of ODUNLAMI V. NIGERIAN NAVY (2013) LPELR – 20701 (SC), also cited by learned counsel to the Respondent.

Counsel to the Appellant also submitted at paragraph 8.9 of the Appellant’s brief that the evidence of PW1 is that he was with Haruna Joji at the time of the incident; while PW2 testified that PW1 was with Bature and Seleh at the time the crime was committed. He therefore argued that the failure on the part of the Respondent to call those or one of those eye witnesses is failure to call vital witnesses which is detrimental to its case.

I am not also unmindful of the submission of the Appellant’s counsel to the effect that the failure of the Respondent to transfer and tender during trial the previous statements made by the Appellant at Aloma Police Station is an infringement of the Appellant’s right to fair hearing under

Section 36 (6) (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The law is well settled that it is the person that makes a positive assertion that has the duty of establishing same. While the Appellant’s counsel maintained that Appellant made a statement at Aloma Police Station, PW3, testified that the Appellant and his co-accused did not make any statement anywhere apart from that made at SARS Office, Lokoja. (See page 24 of the record of appeal). It is important to state that this piece of evidence by PW3 was not challenged under cross-examination and I am inclined to believe same.

Counsel to the Appellant also made heavy weather that neither the charge nor the proof of evidence in this case made reference to the time and date of the commission of the alleged offence by the Appellant and that failure to do so occasions a miscarriage of justice and an infraction on the Appellant’s right of facility as encapsulated by Section 36 6(a) (b) and (d) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). It is on record that no objection or complaint was made against the charge at the time when plea was taken

until after the conclusion of evidence. Assuming but without agreeing that the Appellant’s complaint was raised timeously, the Appellant has not shown through his counsel that the alleged errors on the charge misled the Appellant or how the error has led to a miscarriage of justice. I therefore hold that the alleged error, if any is not fatal to vitiate the proceedings of the trial Court. See the case of PETER V. STATE (2013) LPELR – 20302 (CA).

In my final analysis of this issue, I am of the view that the Respondent has discharged the burden of proof for the offence of Kidnapping beyond reasonable doubt. As for the offence of Conspiracy, I agree with learned counsel to the Respondent that where ingredients of the principal offence can be established against two or more people, it is taken that the offence of conspiracy is necessarily engrained in their criminal confederacy. On this point, the learned trial judge at page 42 of the record that:
“With specific regard to the offence of conspiracy, the clear and strong inference of fact to be drawn from the evidence of PW1 set out above and the content of Exhibits P1, P2 and P3 stating

how the ransom was shared between the accused persons, is that the accused person were confederates in the business and crime of kidnapping. I believe the evidence adduced by the prosecution and have no reluctance in drawing inference of conspiracy in the circumstances.”

Flowing from the hills of the forgoing, I hereby resolve this issue in favour of the Respondent and against the Appellant.

RESOLUTION OF ISSUE NO. 2
Whether the Appellant was rightly tried and convicted under the Kogi State Kidnapping, Thuggery and Other Related Offences (Prohibition) Act, 2010 (Repealed 2015)?
Even if I want to agree with the Appellant’s counsel that the law under which the Appellant was tried and convicted had been repealed, in the circumstances of this case, I am satisfied that as at the time of the arraignment, trial, conviction and sentence of the appellant in 2016, there was and still in existence, a written law in respect of the offence of Kidnapping defined and a punishment therefore prescribed in the Kogi State Kidnapping, Thuggery and Other Related Offences (Prohibition) Act, 2010 (Repealed in 2015). Furthermore, it has not been

demonstrated or shown by the Appellant that in fact, a miscarriage of justice was occasioned by the error in charging and trying him under Section 3(3) (b) of the Kogi State Kidnapping, Thuggery and Other Related Offences (Prohibition) Act, 2010.
The offence for which the appellant was convicted is defined and the penalty therefore is prescribed in a written law. The written law at the time of trial was either the 2010 Law or the 2015 Law. Where an offence known to law is disclosed in a charge and the penalty for the offence is prescribed in a written existing law and the charge is erroneously, brought under a wrong section of an existing law or under a law which has been repealed or has ceased to exist, and both the accused and his counsel are not misled, a conviction for the offence disclosed in the charge will not be set aside on appeal if there has been no miscarriage of justice. The fact is that the Appellant has not shown that there was a time when neither law applied to the area that constitutes Kogi State. Moreover, a conviction under the wrong law is not fatal if there is the provision of another law under which the conviction can stand. See

ADONIKE V. THE STATE (2015) LPELR – 24281 (SC).

On the whole, I hereby resolve the two issues distilled by this Court in the resolution of this appeal against the Appellant and in favour of the Respondent. I hold that his appeal is bereft of merits and same is hereby dismissed. The decision of the trial Court Per Honourable Justice F. Ajayi in Suit No: IDHC/6C/2016 delivered on the 15th day of December, 2016 wherein the Appellant was convicted and sentenced to imprisonment for life for the offences of Criminal Conspiracy and Kidnapping contrary to Section 97(1) of the Penal Code and Section 3(3) (b) of the Kogi State Kidnapping, Thuggery and Other Offences (Prohibition) Law, 2010 is hereby affirmed.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have read in draft the lead judgment mast eloquently and aptly articulated by my lord Adamu Jauro, JCA in this appeal and I agree entirely with the reasoning there-in and the conclusion there-at that the appeal be dismissed as lacking in Merit.

A study of the record of appeal shows the corroborated and admissible evidence of the child victim of the act of kidnapping and the illuminating and positive

corroborative evidence of PW1- the father of the victim, as relating to the kidnap, demand for and payment of ransom. The linkage or nexus of the appellant as the perpetrator for thereof by the telephone number and calls by him and the police confirmation of same, strengthens the victim’s act of positive identification.

Even if no sums of money were recovered as exhibits at all, that alone, would not have prejudiced the well-reasoned conclusion of the trial judge that the offences had been proved beyond reasonable doubt.
I endorse the leading judgment and also dismiss the appeal.

BITRUS GYARAZAMA SANGA, J.C.A.: I agree.

Appearances:

B. Maiyaki, Esq. with him, M. B. Gana, Esq. For Appellant(s)

O. Olowolafe Esq, with him, Lookman Alawaye Esq. For Respondent(s)