LUCKY v. STATE
(2021)LCN/15083(CA)
In The Court Of Appeal
(AKURE JUDICIAL DIVISION)
On Tuesday, March 30, 2021
CA/AK/156C/2018
Before Our Lordships:
Rita Nosakhare Pemu Justice of the Court of Appeal
Hamma Akawu Barka Justice of the Court of Appeal
James Gambo Abundaga Justice of the Court of Appeal
Between
OKONKWO LUCKY APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
WAYS OF PROVING THE GUILT OF AN ACCUSED PERSON
There are three ways of proving the guilt of an accused person. a. Confessional Statement of the accused person. b. Through circumstantial evidence. c. Evidence of the eyewitnesses to the crime. –IGABELE VS STATE 2006 ALL FWLR (PT. 311) PG. 1797 AT 1 807. PER RITA NOSAKHARE PEMU, J.C.A.
MEANING OF THE TERM “CRIMINAL CONSPIRACY”
The term “criminal conspiracy” can aptly be defined as a situation when two or more persons agree to do or cause to be done as illegal act, by illegal means. –OSHO V STATE 2018. 13 NWLR (PT. 11637) PG. 474 AT 487. SEE NJOVEN V STATE 1998 1 ACLR 224 AT 263-264. PER RITA NOSAKHARE PEMU, J.C.A.
ESSENTIAL INGREDIENTS OF CRIMINAL CONSPIRACY; WHETHER THE ACTUAL COMMISSION OF THE SUBSTANTIVE OFFENCE IS NECESSARY TO SECURE A CONVICTION FOR CONSPIRACY.
The ingredients of criminal conspiracy and standard of prove of same are; a. That two or more persons have entered into an agreement freely to do or commit an illegal act or b. That the two or more person have agreed to cause to be done an illegal act; or c. That the two or more person have agreed freely to do or cause to be done an act, which is not illegal but by illegal means. The thread that runs through these ingredients is that a lone person cannot commit the offence of conspiracy. There has to be an agreement between two or more persons to commit the alleged offence. Pertinent to note that conspiracy to commit an offence is a separate and distinct offence independent of the actual offence to which the conspiracy is related. The actual commission of the offence is not necessary to secure a conviction for conspiracy. Thus, the mere agreement to commit the offence is sufficient – (1) UGBOJI V. STATE 2018 10 NWLR (PT. 1627) PG. 201 – 398; (2) SULE V. STATE (2009) 17 NWLR (PT. 1169) 33 AND IKEMSON V. STATE (1989) 3 NWLR (PT. 110) 455. PER RITA NOSAKHARE PEMU, J.C.A.
QUESTIONS TO BE CONSIDERED WHEN DETERMINING THE WEIGHT TO BE ATTACHED TO A RETRACTED CONFESSIONAL STATEMENT
OYINYE V. STATE (2012) 14 NWLR (PT. 1324) PAGE 594 has laid to rest the questions where a trial Court faced with a retracted confessional statement should ask. They are: (a) Whether there is anything outside the confession to show that it is true. (b) Whether it is corroborated. (c) Whether the statements made in it are true as far as they can be tested. (d) Whether the accused had opportunity of committing the crime. (e) Whether the confession is possible. (f) Whether it is consistent with other facts which has been ascertained and have been proved. See also TANKO V. STATE 2008 3 WRN 117 DW1. PER RITA NOSAKHARE PEMU, J.C.A.
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Osun State, holden at Ejigbo Judicial Division in Charge No. HEJ/1C/2013, delivered on the 21st day of October, 2013, whereby the 3rd accused person (the Appellant in this Appeal) was convicted for the offences of conspiracy, kidnapping and unlawful possession of firearms.
SYNOPSIS OF FACTS
One Alhaja Muibat Salam having closed from her shop on the 9th of October, 2012, was on her way home at Oke Odo, when a Golf car with some persons crossed her way, forced her into the car and was driven outside Ejigbo. She was later transferred into a Trailer Truck with Registration No. ATN 21 XA, and driven to a place along Lagos-Ibadan express road. The persons were armed with guns and she was instructed to call her husband who was then the Speaker of the Osun State House of Assembly, to request that he pays ransom. She identified the Appellant as one of the kidnappers.
The husband of the victim, confirmed the story and did state that he was called via GSM No. 07056214501 and 08059018245 to pay ransom for his wife. He reported the matter to the Police and the DSS.
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The kidnappers were apprehended in a bush with the help of vigilante man and the Police. The Appellant was one of those arrested, and riffles and a truck were recovered from them.
The Appellant and four others were thereafter charged to Court for the offences of conspiracy, kidnapping and unlawful possession of firearms. On the 16th day of May, 2013, they were arraigned before the Court, where they (including the Appellant) pleaded not guilty to both counts.
The Prosecution fielded ten (10) witnesses and tendered fifteen exhibits.
The Appellant testified on his behalf and called no witness.
At the close of the trial, the Appellant with others were found guilty as charged and convicted and sentenced to imprisonment for seven (7) years for the offence of conspiracy, and ten (10) years for the offence of kidnapping and ten (10) years for the offence of unlawful possession of firearms. The sentences were to run concurrently.
The Appellant is dissatisfied with the judgment of the Court and being desirous of appealing the decision, filed a Notice of Appeal on the 8th April, 2018 with four (4) Grounds of Appeal.
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The Appellant filed his brief of argument on the 12th of February, 2019. Same was deemed filed on the 26th of January, 2021. It is settled by Mr. Adedoyin Rhodes-Vivour SAN.
The Respondent’s brief of argument was filed on the 16th of October, 2019. It is settled by Adedapo Adeniji, Solicitor General and Permanent Secretary Ministry of Justice, Osogbo, Osun State.
The Appellant proffered two issues for determination from the Grounds of Appeal and they are:
1. WHETHER THE CHARGES OF CONSPIRACY, KIDNAPPING AND POSSESSION OF UNLAWFUL FIREARMS WERE PROVED BEYOND REASONABLE DOUBT AGAINST THE APPELLANT?
2. WHETHER THE TRIAL COURT WAS RIGHT WHEN IT CONVICTED THE APPELLANT DESPITE HIS UNTESTED RETRACTED EXTRA JUDICIAL STATEMENT?
The Respondent distilled two issues for determination viz:
1. WHETHER THE PROSECUTION PROVED THE THREE COUNTS CHARGE AT THE LOWER COURT BEYOND REASONABLE DOUBT.
2. WHETHER THE COURT ADEQUATELY CONSIDERED THE TEST TO ASCERTAIN THE VERACITY OF CONFESSIONAL STATEMENTS ONCE THEY ARE RETRACTED.
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I shall consider this appeal based on the Appellant’s issues for determination, as I find that the issues for determination proffered by the Respondent is an adoption of the issues proffered for determination by the Appellant.
ISSUE ONE
The Appellant submits that the conviction of the Appellant for the offence of Conspiracy and illegal possession of Firearms was erroneous, because the ingredients of these offences were not established by the prosecution beyond reasonable doubt.
He submits that the evidence led by the Respondent witnesses were not positive or direct enough to put the Appellant to the commission of the offences charged. That there was insufficient evidence upon which the trial Court based its judgment.
That save for the untested confessional statement of the Appellant the Respondent adduced no circumstantial evidence from which the trial Court would have inferred what the Appellant and each co-defendants did or did not do in the furtherance of the offence of conspiracy.
Submits that Exhibit B (The Appellant’s confessional Statement) was retracted by him in Court, and that the Court below relied on Exhibit B in convicting the Appellant.
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He submits that Conviction for conspiracy is usually grounded on circumstantial evidence, which the Court may infer from facts through which a common purpose is achieved. KOLAWOLE VS THE STATE (2015) 2 SCNJ (PT. 1) 186.
That the Respondent did not adduce evidence relating to the facts that the Appellant and his co-defendants did things toward a common criminal purpose. He urged Court to hold that the Respondent failed to provide any surrounding circumstantial evidence to enable the Court to infer that the Appellant had committed the offence of conspiracy – citing MOHAMMED V. STATE (2007) VOL. 37 WRN 1 AT 25.
He submits that there must be circumstances which are accepted so as to make a complete and unbroken chain of evidence.
That assuming (but without conceding) that the Respondent succeeded in providing surrounding circumstantial evidence, the evidence adduced by the Respondent at the trial did not prove the guilt of the Appellant with clear cut accuracy and beyond reasonable doubt.
Submits that the facts narrated as being the basis of circumstantial evidence adduced against the Appellant is incompatible with the guilt of the Appellant. That PW1 testified that the Appellant was arrested
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“inside the bush” PW2 testified that his men did not arrest the Appellant at the scene of the crime. That these contradictions have created doubt which must be resolved in favour of the Appellant. That the Appellant was arrested at a park and not in the bush.
The Appellant submits that there is nothing to show that he actually participated in the kidnapping, aided and/or abated the commission of same. That the Appellant was not arrested at the scene of the crime and would not have had the opportunity of committing the offence of kidnapping. That the Respondent failed to prove the ingredients of kidnapping offence against the Appellant.
The Appellant submits that there is no evidence that he was in illegal possession of any firearms when he was arrested.
Submits that the Respondent did not conduct an identification parade during their investigation and prior to the trial of the Appellant. That PW1 initially did not identify the Appellant at the scene of the crime or through an identification parade at the Police Station.
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Submits that in this instance, identification parade was very necessary. This is because, PW1 did not know the Appellant before the alleged first acquaintance with him during the alleged commission of the offence by him.
The Appellant submits that the Court below did not consider the contradictions in the evidence of the prosecution witnesses especially PW1 and PW2.
That PW2 admitted under cross examination that he did not see or arrest the Appellant at the scene of the crime.
ISSUE TWO
Submits that there are certain conditions that must be satisfied before the Court can convict based on retracted extra judicial statement. That the Court below failed to consider any of these conditions. That the Respondent did not lead evidence at the trial Court showing that there was anything outside Exhibit B to show that the Appellant committed the offence for which he was charged.
That Exhibit B was not corroborated by any direct or circumstantial evidence to show that the Appellant had the opportunity of committing the crimes. The Court below did not test the truth of the confessional statement Exhibit B, in relation to his evidence at the trial that he was tortured before he was forced to sign the extra judicial statement.
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RESOLUTION OF ISSUES
There are three ways of proving the guilt of an accused person.
a. Confessional Statement of the accused person.
b. Through circumstantial evidence.
c. Evidence of the eyewitnesses to the crime. –IGABELE VS STATE 2006 ALL FWLR (PT. 311) PG. 1797 AT 1 807.
The Appellant had been charged with the offences of conspiracy, kidnapping and being in possession of firearms unlawfully.
It is necessary, indeed pertinent to restate the laws regarding these offences, the ingredients empowering them, and see how well it fits into this case as affecting the Appellant.
The term “criminal conspiracy” can aptly be defined as a situation when two or more persons agree to do or cause to be done as illegal act, by illegal means. –OSHO V STATE 2018. 13 NWLR (PT. 11637) PG. 474 AT 487. SEE NJOVEN V STATE 1998 1 ACLR 224 AT 263-264. The ingredients of criminal conspiracy and standard of prove of same are;
a. That two or more persons have entered into an agreement freely to do or commit an illegal act or
b. That the two or more person have agreed to cause to be done an illegal act; or
c. That the two or more person have agreed freely to do or cause to be done an act, which is not illegal but by illegal means.
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The thread that runs through these ingredients is that a lone person cannot commit the offence of conspiracy. There has to be an agreement between two or more persons to commit the alleged offence.
Pertinent to note that conspiracy to commit an offence is a separate and distinct offence independent of the actual offence to which the conspiracy is related. The actual commission of the offence is not necessary to secure a conviction for conspiracy. Thus, the mere agreement to commit the offence is sufficient – (1) UGBOJI V. STATE 2018 10 NWLR (PT. 1627) PG. 201 – 398; (2) SULE V. STATE (2009) 17 NWLR (PT. 1169) 33 AND IKEMSON V. STATE (1989) 3 NWLR (PT. 110) 455.
In establishing the crime of kidnapping, the prosecution is required to prove the following viz:
Any person that…
“Unlawfully imprisons any person within Nigeria in such a manner as to prevent him from applying to a Court for his release or from discovering to any other person in the place where he is imprisoned or in such a manner as to prevent any
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person entitled to have access to him from discovering the place where he is imprisoned is guilty of a felony and is liable to imprisonment for ten years.”
The provisions of Section 3(1) of the Robbery and Firearms (Special Provisions) Act, Cap R. 11 Volume 14 Laws of the Federation 2004, stipulates that any person having a firearm in his possession or under his control in contravention of the Firearms Act or any order made thereunder shall be guilty of an offence under this Act, and shall upon conviction under this Act, be sentenced to a fine of N20,000 or to imprisonment for a period of not less than ten years or to both.
The word “firearm” is defined in the interpretation section to mean:
“It includes any canon, gun, riffle, canibane, machine gun, cap gun, flint lock gun revolver, pistol, explosive or ammunition or other firearms; whether whole or in detached pieces” – Section 11(1) of the Act.
Now, it is pertinent to see how culpable the Appellant is with regards to the offences as charged, in view of the establishment or non establishment of the ingredients of the offences.
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CONSPIRACY
PW1 who was kidnapped at Ejigbo testified that she identified that the 1st, 2nd and 4th accused persons were among the persons that carried her to the bush. That other members of the gang including the Appellant were already in the bush. That they kept her in the bush for five days.
She particularly identified the Appellant Okonkwo Lucky who was the 3rd accused person at the trial, as one of those that kidnapped her and kept her in the bush from Friday until Saturday.
PW2, Sunday Oniyide, a vigilante man in Ogun State testified inter alia:
“On getting to the bush the Baba Elemu led us to the bush where we saw some people running away. We had to pursue them! He said that three of the convicts were arrested inside the truck on the road he said further. Yes one of my boys arrested one of the kidnappers and taken to Eleweran. I hereby point to him as No. 3 he is Okonkwo Lucky.”
These two pieces of evidence brings the Appellant within the ambit of the offence of conspiracy with other persons to commit the offence of kidnapping.
KIDNAPPING
The Appellant confessed to the kidnapping and the fact that he was in company of others,
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with the knowledge that they agreed to kidnap the victim suffices. He travelled all the way from Delta State to Lagos to commit this heinous crime. Exhibit “B” is the Appellant’s confessional statement. The Appellant however retracted the statement in Court.
“The fact that PW1 and PW2, the victim identified the Appellant positively was corroborative of the fact that the Appellant conspired to kidnap the victim, and in fact kidnapped her on the fateful day.”
The testimony of PW1 that she was moved from Ejigbo to Ogunmakin/Fidiwo in the Lagos/Ibadan Express Road and kept in the bush against her wish for days, remain unchallenged.
PW2, the husband to the victim of the kidnappers testified that he was told to pay ransom before PW1 can be released. There is evidence that PW1 was retained in the bush in a manner to prevent her from applying to Court for her release or from disclosing to any other person of the place where she is imprisoned.
The Appellant in his testimony said that he was arrested at the scene. He gave no explanation of how he got there. PW1 testified that the Appellant was one of those who prevented her from escaping from the bush.
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UNLAWFUL POSSESSION OF FIREARMS
Possession of firearms per se is not a crime, but to possess same without a licence or by any other illegal means translates it into a crime.
PW2 in his testimony, said he recovered two (2) AK-47 and four (4) magazines from the Appellant. PW1 had testified that her captives were arrested with guns. In his confessional statement (Exhibit “B”), the Appellant had stated inter alia:
“After two weeks, I saw Chuks again, while I carried him on my motor bike he told me that his boss has money, himself and some other guys were planning to kidnap him. Two AK47 riffles with many ammunition were brought to the bush by Uche for the purpose of guarding the woman.”
Decidedly, once a person has knowingly taken possession of an article and it remains within his control, he is said to be in possession. The Appellant cannot be said to be honest in his intentions when he could not explain how he came about those weapons and whether they were licenced.
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There is no gain saying that from the facts elicited in this case, the Appellant is no doubt involved in the commission of the offences of conspiracy, kidnapping and for unlawful possession of firearms. The evidence elicited from the witnesses were credible, cogent, and cannot be faulted.
Even though the Appellant retracted his confessional statement, there is enough corroborative evidence from the prosecution witnesses to pin him to the crime.
The answer to issue one is therefore in the affirmative and same is hereby resolved in favour of the Respondent.
ISSUE TWO
Decidedly, retraction of confessional statements that had been tendered and admitted amount to afterthoughts – USONG V STATE 2010 5 WRN 132.
The retraction of the confessional statement by the Appellant makes his entire evidence unreliable, except where he proves that the statement was taken under duress. But where the accused person leads sufficient evidence to rebut the accusation by the prosecution (which the Appellant has not done) the confessional statement may be jettisoned by the Court.
I had observed that there is enough corroborative evidence buttressing the Appellant’s confessional statement. The evidence of PW1 the victim of the kidnapping; PW2’s
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evidence that one of his vigilante colleagues arrested the Appellant and brought him to Eleweran, coupled with the evidence of the Appellant himself that he was arrested at Lagos Ibadan Expressway all confirm the Appellants confession.
OYINYE V. STATE (2012) 14 NWLR (PT. 1324) PAGE 594 has laid to rest the questions where a trial Court faced with a retracted confessional statement should ask. They are:
(a) Whether there is anything outside the confession to show that it is true.
(b) Whether it is corroborated.
(c) Whether the statements made in it are true as far as they can be tested.
(d) Whether the accused had opportunity of committing the crime.
(e) Whether the confession is possible.
(f) Whether it is consistent with other facts which has been ascertained and have been proved.
See also TANKO V. STATE 2008 3 WRN 117 DW1. A driver with whom the Appellant was working admitted that he operated the truck with the Appellant thereby corroborating the Appellant’s statement that he operated the truck together with DW1 – a driver. Indeed PW1 had testified inter alia that the Appellant was one of the culprits who received her when she was brought to the bush.
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The Appellant had in Exhibit “B” stated inter alia thus:
“… after about one hour of waiting one guy came with Honda Accord … A woman was forced out of the Honda Car and pushed inside the truck. I then entered the Honda Car to where I don’t know … When we finally stopped the woman and one person came down from the truck and entered the bush … I was in the bush with four people with the woman in the bush”
The features in Exhibit B viz: WOMAN; BUSH; TRUCK align with the evidence of the Prosecution witnesses facts which corroborate Exhibit “B”. The Appellant cannot be seen or heard to retract Exhibit “B”.
I am of the view that the Trial Court was right when it convicted the Appellant as it did, based on inter alia, his confessional statement, and the corroborative evidence elicited from the Prosecution witnesses, particularly that of PW1 and PW2. Issue two is therefore answered also in the affirmative and same is resolved in favour of the Respondent and against the Appellant. The Appeal fails and same is hereby dismissed by me.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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Accordingly, the conviction and sentence of the Appellant by the High Court of Osun State Iwo Judicial Division in Suit No. HEJ/1C/2013 on the 21st day of October, 2013 is hereby affirmed.
HAMMA AKAWU BARKA, J.C.A.: I was opportuned to have read in draft the judgment just delivered by RITA NOSAKHERE PEMU JCA.
Having also considered the submissions of the learned counsel, and carefully examined the record of appeal, I fail to see any reason why I should interfere with the decision of the trial Court convicting appellant for the offences of conspiracy, kidnapping and unlawful possession of arms.
I join my lord in dismissing the appeal and thereby confirming the conviction and sentence imposed by the Lower Court is charge No: HEJ/1C/2013 delivered on the 21/10/2013.
JAMES GAMBO ABUNDAGA, J.C.A.: I have read the draft of the judgment delivered by my learned brother, Rita Nosakhare Pemu, JCA.
I adopt his Lordship’s resolution of the two issues on which the appeal was decided in favour of the Respondent.
Accordingly, I too hold that the appeal fails and deserves dismissal as ordered by my learned brother. In the result, the judgment of the lower Court convicting and sentencing the appellant is hereby affirmed.
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Appearances:
Adedoyin Rhodes-Vivour with him, Quincy Inoma For Appellant(s)
Adedapo Adeniji, Solicitor General and Permanent Secretary Ministry of Justice, Osogbo, Osun State with him, M. A. Bello (DPP) and K. Adekilekun Tijani (AD) For Respondent(s)
