KENNEDY ITOJE v. THE STATE
(2019)LCN/13837(CA)
In The Court of Appeal of Nigeria
On Friday, the 1st day of November, 2019
CA/B/257C/2017
RATIO
PROSECUTION CAN PROVE A CRIME BEYOND REASONABLE DOUBT BY CIRCUMSTANTIAL EVIDENCE
It is also settled law that the prosecution can prove the commission of a crime beyond reasonable doubt by circumstantial evidence; the confession of the accused person; and direct evidence. PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU 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
KENNEDY ITOJE Appellant(s)
AND
THE STATE Respondent(s)
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment): The appellant was charged with the offences of conspiracy to commit kidnapping and kidnapping of one Kate Okogu (f) on or about the 14th day of September, 2012. He was tried for and convicted of the said offence by the High Court of Delta State, holden at Asaba, in Charge No. A/24C/2014. In its judgment, delivered on the 20th day of July, 2017, the trial Court sentenced the appellant to 5 years imprisonment in respect of the offence of conspiracy and 8 years imprisonment in respect of the offence of kidnapping, without an option of fine. The sentences are to run concurrently. This appeal is against the said decision.
In his brief, filed on 21/11/2018 but deemed as properly filed on 05/02/2019, the learned counsel for the appellant distilled the following issue for determination:
?Whether from the totality of the evidence on record, the lower Court rightly held that the prosecution proved the alleged offences of conspiracy to kidnap and kidnap against the appellant beyond reasonable doubt. (Grounds 1,2,3,4).
Learned counsel for the respondent also raised a single issue in his brief filed on 20/05/2019 and deemed as filed on 08/10/2019 as follows:
Whether the trial Court was right in law when it held that the prosecution proved the case of conspiracy to kidnap and kidnapping against the appellant beyond reasonable doubt
The summary of the arguments of the learned counsel for the appellant is in paragraph 4 on pages 20-21 of the appellant?s brief where counsel stated as follows:
?In view of the foregoing submissions, we respectively urge this Honourable Court to allow the appellant?s appeal for the following reasons:
1. From the totality of the evidence on record, the lower Court was wrong when it held that the prosecution prove the offences of conspiracy to kidnap and kidnap against the appellant based on the evidence of the prosecution witnesses and Exhibit B.
2. PW1 the victim of the crime knew the appellant before the crime was allegedly committed and did not mention the name of the appellant in her extra judicial statement. The first time the name of the appellant was mentioned as part of those who kidnapped the appellant was at the lower Court.
3. The PW2 testified that one Chukwudi who was caught at the scene of crime implicated the appellant. The statement of the said Chukwudi wherein he allegedly implicated the appellant was not tendered by the prosecution in order for the lower Court to ascertain the veracity of that portion of the PW2?s evidence.
4. There was no evidence on record to show that the said Chukwudi, if he ever existed gave a description of the person or persons he allegedly implicated.
5. The PW2 and his team acted on the information given to them by the PW1?s husband to arrest the appellant. The PW1?s husband was not called to give evidence on how he came to a conclusion that the appellant was part of those who kidnapped the PW1.
6. From the surrounding circumstances of this case and the evidence on record, it would not have been possible for the appellant to make Exhibit B.
7. There is no other evidence on record to show that Exhibit B was true.
8. The prosecution?s failure to call a vital witness who could have pinned the appellant to the crime was fatal to the prosecution?s case.
On the other side, learned counsel for respondent countered the appellant?s submissions by stating, inter alia, as follows:
We urge this Court to dismiss this appeal and affirm the conviction of the appellant on the following grounds:
(a) The appellants conviction was based on credible evidence of the PW1-3, the confessional statement and attestation form admitted in evidence as Exhibits ?B? and ?C? without objection from the appellant.
(b) The appellant in his extra judicial confessional statement corroborated the evidence of the PW1-PW3 and identified himself at the scene of crime.
(c) The appellant?s counsel was unable to prove that the findings of the lower Court was perverse.?
I have read the proceedings of the trial Court, including the evidence adduced by the prosecution, the appellant?s evidence in his defence, the addresses of the learned counsel for the contending parties and the judgment of the trial Court. In addition, I have read and considered the briefs which were filed and exchanged by the parties in this appeal. The evidence of the victim ? Mrs. Kate Okogu, who testified as PW1, which the trial Court accepted to be true, is summarized in the trial Court?s judgment on page 73 of the record of appeal as follows:
?On 13/9/12, the PW1 Mrs. Kate Okogu closed from her shop at 7:30 pm and went home. On getting to her gate, she pressed her car horn and the gate man opened the gate. She drove into her premises and was about parking the car when she heard a bang on her windscreen. She looked up and she saw 2 boys one of which was the Accused person. They told her to come down from the car and go to the back seat. She complied; the Accused person took over the steering while the other boy sat at the back seat with her armed. She was taken to an unknown destination, and when they got there, she was led into the bush by 2 other armed boys. They asked for her husband?s number which she gave them. They called her husband and demanded for N20, 000,000.00 (twenty million naira) ransom, her husband refused to pay and requested that they release her but instead she was severely beaten. She was in their captivity throughout the night until the next morning when the Accused person came into the bush and she was blindfolded. They told him the discussion they had with the PW1?s husband and his response, the Accused person threatened to deal with the PW1 by torturing her when he returns at midnight. Fortunately for the PW1, she was rescued by men of the Nigerian Army and members of the Vigilante in that area. One of the boys named Chukwudi who was keeping watch of the PW1 was arrested while the other escaped. The said Chuwudi led them to the house of another member of their gang and they both led the team to the house of their boss the Accused person. On getting to the Accused person?s house, he had escaped based on the information he got from his younger brother also said to be a member of their gang.
Based on a tip-off, PW2 ? Staff Sgt. Austin Osudibia and his squad attached to 222 Battalion, Agbara-Otor, Ughelli Delta State; arrested the appellant on 11/02/2013 at Oforgor-Ewu junction when the appellant was on his way to Yenagoa, Bayelsa State. PW2 made a statement to the Police, which statement was admitted as exhibit ?A? by the trial Court.
The appellant was subsequently transferred to the Delta State command of the State Security Service (SSS) where the appellant wrote a statement by himself in the presence of PW3 ? O. J. Obayuwana ? the Investigating Officer, who countersigned the statement. The appellant was later taken before one Mr. A. O. Nnodin ? a Superior Officer, for attestation. The appellant?s statement and the attestation thereto were admitted by the trial Court as exhibits ?B? and ?C?, respectively.
After the close of the prosecution?s case, the appellant testified in person and also called one Obroku Oghenekaro, who testified as DW1 in his defence.
In its judgment, the trial Court elaborately considered and evaluated the evidence before it and, after making reference to relevant judicial authorities, found the appellant guilty. The trial Court believed the evidence of the prosecution witnesses and disbelieved the evidence of the appellant and his witness, describing their evidence as ?an afterthought meant to hoodwink the Court?.
The evidence of the victim (PW1) and the other witnesses fielded by the prosecution was not discredited by the appellant, either by way of cross-examination or otherwise. The circumstances under which the appellant was arrested were not faulted nor disputed. When the appellant?s statement and the attestation thereto were tendered by the prosecution, there was no objection by or from the appellant before they were admitted by the trial Court as exhibits ?B? and ?C?, respectively. See page 61C of the record of appeal.
In its judgment, the trial Court reproduced exhibit ?B?, on pages 78 to 80 of the record of appeal, as follows:
STATEMENT OF RECORD
1. NAME: KENNEDY ITOJE
2. TRIBE: ISOKO
3. AGE: 27 YEARS
4. RELIGION: CHRISTIAN
5. OCCUPATION: TRANSPORTER
6. NATIONALITY: NIGERIAN
7. RESIDENTIAL ADDRESS: NO. 2 STADIUM ROAD, OTOVWODU, UGHELLI, DELTA STATE
8. OFFICE/BUSINESS ADDRESS:
9. TELEPHONE NO. 08035422566
?I, Kennedy Itoje have been duly cautioned in English Language, that I am not obliged to say anything unless I wish to do so and that whatever I say will be taken down in writing and may be given in evidence.
Signed Date: 7/8/13.
?I hereby voluntarily elect to state as follows: My name is Kennedy Itoje from Iyede in Isoko North L.G.A. Delta State of Nigeria. I am 37 years old I am married to Mrs. Faith Itoje and I have two children. I reside at No. 3, Stadium road, Otovwode Ughelli. I am the second child among five. I was arrested by men of the Nigeria Army at Ughelli North L.G.A. Delta State and I was later transfer to SSS office Asaba Delta State upon reaching the SSS office I was ask about my involvement in the kidnapping of one Mrs. Kate Okogu on 13/9/12 at Ughelli North L.G.A. Delta State. I explain to the SSS officer that I once worked for honourable Okogu during the general election but I was abandoned. I told Chukudi Ndudi and Chika to join in the kidnap operation of Kate Okogu as the husband refused to settle me for the work I did for him in the general election on 13/9/2012 at Affisere junction Ughelli as I was at the junction with Chukudi Ndudi and Chika. Kate Okogu drove pass with her car and immediately I told Chukudi to drive behind her as she did not noted. She was with us as we get to the house. As Kate was about entering her house Chika jump down from the car and she was order to enter to the car back seat and we drove her to a bush located at Ozoro and the little with her was dropped at the Affisere Junction and I was in the forest with Kate Okogu and Chukudi later came to the bush and he was the one who stayed with her inside the bush before the army came to rescue her. I ran away from Ughelli and relocated to Benin-city before I was arrested by the army. I admitted to the SSS officer that I was the initiated of the kidnap plan of Kate Okogu as I once worked for the husband but he did not settle me with appointment after the election and it was Chukudi car (Mazda) we used in carrying Kato Okogu to Ozoro where she was kept inside the forest. I further explain to the SSS officer that I participated in the kidnap of one Mrs. Linda Akpototor on 18th June, 2012 at Oleh in Isoko South L.G.A. Delta State. A ransom of 6 million naira was paid and I got a share of 1.8 million naira and also Mrs. Ovwidi a fish merchant in Ughelli who was kidnap sometime 2012 where a ransom of 25 million naira was paid I got a share of 2 million naira and the kidnap; of Juliet Ojo. A matron at Ughelli health center who was kidnap sometime last year at Ughelli and the ransom of two million naira was paid by the family and I got a share of five hundred thousand and the kidnap of Rev. Abel Utomi of Apostolic Faith Church Ughelli was kidnap sometime May 2012 and a ransom of 1.2 million naira was paid by the family and I collected four hundred thousand naira as my share.
Signed: 07/8/2013.
The statement of the accused was recorded in my presence, after which he signed it and I countersigned.
O.J. Obayuwana: 07/8/2015.?
Based on exhibit ?B?, reproduced above, the trial Court was right in finding and holding as follows:
?This statement of the accused person is confessional in nature, it is an admission of guilt on the part of the accused person. It contains the role he played in the kidnap of the victim. The Accused person in Exhibit ?B? admitted working hand in hand with one Chukudi Ndudi and Chika to kidnap the PW1 because the husband refused to settle him by giving him an appointment for the work he did for him during the general election. From the statement of the Accused person, it is quite obvious that he fully participated in the kidnap of the PW1 and even went as far as taking her to the forest, left her in custody of Chukwudi until she was rescued by the PW2 and his team while Chukwudi was arrested in the forest. The said Chukwudi is said to be serving a jail sentence for the role he played in the kidnap of the PW1.?
Having regard to the evidence of the prosecution witnesses and the confession of the appellant ? exhibit ?B?, the trial Court was right in its judgment whereby the appellant was found guilty of the offences of conspiracy and kidnapping.
The elements of conspiracy and kidnapping are trite, as they have been repeated and recited in a litany of decisions of the Supreme Court.
It is also settled law that the prosecution can prove the commission of a crime beyond reasonable doubt by circumstantial evidence; the confession of the accused person; and direct evidence.
I resolve the live issue in this appeal against the appellant.
The conclusion of the matter is that this appeal lacks merit and it is hereby dismissed.
The judgment of the trial Court, per Hon. Justice M.O. Omovie, delivered on the 20th day of July, 2016 is hereby affirmed.
HELEN MORONKE
