MR. VINCENT ANTHONY KACHEBRY v. THE STATE
(2019)LCN/12632(CA)
In The Court of Appeal of Nigeria
On Friday, the 1st day of February, 2019
CA/YL/65C/2017
RATIO
CRIMINAL LAW: WHERE AN ACCUSED HAS LIED
“A person may lie though innocent. Such lies may be a result of fear or stupidity or indeed anxiety. The fact that an accused person has told lies has never been accepted as proof of guilt. The fact that an accused person has told lies does not relieve the prosecution of its duty of proving the guilt of the accused of the offence charged beyond reasonable doubt. See Omogodo vs. The State (1981) 5 SC 5 at 22, Okpere vs. The State (1971) 1 All NLR and Haruna vs. Police (1967) NMLR 145.”PER JAMES SHEHU ABIRIYI, J.C.A.
JUSTICE
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria
Between
MR. VINCENT ANTHONY KACHEBRY Appellant(s)
AND
THE STATE Respondent(s)
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment delivered on the 12th April, 2016 in the High Court of Taraba State holden at Jalingo wherein the Appellant and his wife were tried and convicted for criminal conspiracy and abduction of a new born baby contrary to Sections 97(1) and 273 of the Penal Code.
According to the prosecution, PW1s daughter who was staying with the wife of the Appellant on 5th June, 2009 delivered a live baby by Caesarean Operation and was discharged from the clinic after seven days. PW1, who was with the daughter the following day 6th June, 2009 did not see the baby. The Appellants wife told him that the daughter had a stillbirth. Two weeks after, the PW1 heard that the Appellants wife had given birth to a baby. He became suspicious and reported to the police that the child the Appellants wife said she gave birth to was his daughters child which the Appellants wife had told him was stillborn.
In his defence, the Appellant said he got to know PW1s daughter when his wife was in Mutum Biyu. He did not object to PW1s daughter staying with his wife.
According to the Appellant, he married on 15th November, 2008. In January 2009 when his wife said she was not feeling fine, he took her to the hospital. She was tested and found to be pregnant. Because of this he had to get a house for the wife at Mutum Biyu where she was working.
The wife was already pregnant before she met PW1s daughter.
One day the wife called him on phone to say that she was not feeling fine. He told her to come to Jalingo so that he would take her to the hospital.
Later he got a phone call that the wife put to bed. His wife told him to carry the box containing the babys materials to Iware. PW6 gave the Appellant the direction to the clinic where the wife was. On arrival at the clinic, they met PW6 outside. PW6 took them to his wife. He met the wife on drip. He was shown the baby lying on the bed on the floor. He was given a bill of N3, 000 which he settled. He was given the placenta by PW6. He put it in a polythene bag, took it to Jalingo and buried it in his landladys house.
The child was prematurely born.
He did not conspire with his wife to abduct a child delivered by PW1s daughter. His wife would never do a thing like that.
The Appellant was convicted and sentenced to a fine of N3,000 or three months imprisonment in default on count one and three years imprisonment plus a fine of N3, 000 on count 2.
The appellant approached this Court by an original notice of appeal dated 28th April, 2016 and filed on 3rd May, 2016. On the 12th June, 2017, the Appellant was granted leave to amend the notice of appeal. The amended notice of appeal dated 8th June, 2017 filed on 12th June 2017 was deemed duly filed and served on 12th June 2017. The amended notice of appeal contains four grounds.
From the four grounds of appeal, the Appellant presented the following three issues for determination:-
1. Whether from the totality of the evidence adduced by the prosecution throughout the entire proceedings can ground a conviction for the offence of abduction as envisaged under Section 272 of the Penal Code?
Issue No. 1 which (sic) distilled from grounds one (1) and two (2) of the notice of appeal.
2. Whether the learned trial Judges evaluation of evidence before him was improper?
Issue No. 2 which is distilled from ground three (3) of the notice of appeal.
3. Whether the learned trial Judge (sic) findings of fact in relation to the evidence before him was correct?
Issue No. 3 which is distilled from ground four (4) of the notice of appeal.
The Respondent formulated a lone issue for determination. It is reproduced immediately hereunder:
Whether the prosecution has discharged the onus of proof placed on it as required by Law. (distilled from grounds 1, 2, 3 and 4 of the appellant (sic) grounds of appeal.
Arguing the appeal, learned counsel for the Appellant submitted that the burden is on the prosecution in a criminal trial to prove the guilt of the accused person beyond reasonable doubt but not beyond all shadow of doubt. The Court was referred to Igabele vs. The State (2015) 3 NWLR (Pt. 1445) 172 and Okanlawo vs. The State (2015) 9 SCM 159 at 183.
The prosecution, it was submitted, can prove its case by any of the following: (a) Evidence of eye witnesses; (b) Confessional Statement of the accused person; and (c) Circumstantial evidence.
The Court was referred to the following finding of the Court below at page 176 of the record:… I find that the two accused have conspired to abduct a child born by Hulder (sic) Augustine through C.S. in Sauki Hospital Mutum Biyu and turned him to their son.
The Court below, it was submitted, thus found that the evidence led by the prosecution was essentially circumstantial. The Court was referred to the definition of circumstantial evidence inAkinbisade vs. State (2006) 17 NWLR (Pt. 1007) 184 at 212 and Ogbuanyinya vs. Okudo (1990) 4 NWLR (Pt. 146) 551.
It was submitted that there was nothing in the evidence led by the prosecution pointing to the use of force or deceit practiced on the person abducted. Therefore the conviction under Section 272 of the Penal Code cannot stand, it was submitted. It was submitted that deception cannot be practiced on a day old baby.
It was submitted that where a prosecutions case is based on circumstantial evidence which is found inadequate to establish the guilt of an accused person, the accused ought to be discharged.
The PW2, it was pointed out, stated in evidence in-chief that the Appellants wife approached him and asked him to cover her misdeed and under cross examination, he said that PW3 was present when the Appellants wife approached him and that she promised to give the two of them N100, 000. However the PW3 said he could not remember that Appellants wife told him and another person that she was going to give him N100, 000. That PW3 said he was not present when PW1s daughter had the Caesarean Operation. The PW9 stated under cross examination that Exhibit RA1, the medical report was not conclusive on the parentage of the child allegedly abducted by the Appellant and his wife because it is only a DNA test that can be conclusive of the parentage of the child.
It was contended that although PW2 was an unreliable witness, the Court below relied on his testimony to conclude that the child was born alive.
Learned counsel for the Appellant wondered why the medical doctor who performed the Caesarean Operation was not called to testify and why the Medical Director of Sauki Hospital was also not called to testify.
Learned counsel for the Appellant submitted that the evidence of DW2 was uncontroverted and yet the Court below concluded that it was far from the truth. Also evidence of DW5 remained uncontroverted, it was submitted, yet the Court below held that it was part of an orchestrated grand plan to show that the DW7 delivered a baby boy.
Learned counsel for the Respondent submitted also that the onus is on the prosecution to prove the guilt of the accused person beyond reasonable doubt. He referred the Court to Orji vs. The State (2008) MJSC 169 at 172 and Aruwa vs. The State (1990) 6 NWLR (Pt. 105) 22, Oseni vs. The State (2012) Vol. 208 LRCN 153 at 161, Akalezi vs. The State (1993) 10 LRCN 264 and Section 135 of the Evidence Act 2011.
It was submitted that for an offence to be proved beyond reasonable doubt, the ingredients of the offence charged must be established. Evidence of PW1 PW9, it was submitted, clearly shows that the Caesarean Operation was successful and a baby boy was delivered. The evidence of PW1 PW9 it was further submitted shows that the Appellant and his wife conspired and abducted a child born by PW1s daughter through Caesarean Operation.
The Court was referred to the elements that constitute the offence of conspiracy as well as those that constitute abduction under Sections 97(1) and 273 of the Penal Code.
Learned counsel for the Respondent reviewed as it were the evidence of PW1 PW9 one after the other and submitted that the evidence of these witnesses shows that the operation of PW1s daughter was successful and a baby boy was removed alive. The Appellant, it was submitted, tactically and or deceitfully abducted the baby.
Learned counsel for the Respondent submitted that the evidence of the prosecution against the Appellant was very strong leading to the conclusion that the case against him was proved beyond reasonable doubt.
Before reviewing the evidence of DW1 DW6, learned counsel for the Respondent submitted that the evidence of those witnesses was hearsay evidence because the DW1 DW6 were not present when the operation of the PW1s daughter was carried out.
Evidence of DW2, it was submitted, was concocted; full of lies and exaggeration.
It was submitted that DW2 being a sister to the Appellant, her evidence ought to be treated with caution.
DW3, it was submitted, stated under cross examination that he did not notice that the Appellant was pregnant.
It was also submitted that the Appellant lied to the staff of Miyetti Allah Clinic, Iware that she was a doctor even though she is a nurse.
DW3, it was submitted, tried to say that the Appellants wife gave birth to her baby at Miyetti Allah Clinic, Iware contrary to evidence of DW5 that the Appellants wife brought the baby to the clinic.
The Court was referred to the evidence of DW4. That the DW4 stated that the baby was delivered in the hospital where the Appellants wife was working. But that the baby was delivered in Sauki Clinic Mutum Biyu. That the DW4 said that they were more than ten that buried the baby. That the Pastor that buried the baby was Pastor Ishaya while the Appellants wife said it was Pastor Shadrack D. Nans. That evidence of DW4 contradicted the evidence of DW1 who said that he saw the dead child wrapped inside a wrapper while DW4 said it was inside a ten Naira polythene bag.
The Court was also referred to the evidence of DW5 who stated that before they went to pick the Appellants wife and her baby at Miyetti Allah Clinic, Iware she had noticed that the Appellant was pregnant. That whenever the Appellants wife was off duty she came back to Jalingo and attended her antenatal clinic. That was how she noticed that the Appellants wife was pregnant.
That the DW5 stated that when they were at the Miyetti Allah Clinic, Iware they asked for the placenta. They were given the placenta. They proceeded to Jalingo and arrived at 12.00 midnight. Learned counsel for the Respondent said the DW5 failed to state the name of the clinic that Appellant attended her antenatal care.
The Court was referred to the evidence of Appellant (DW6) to the effect that he married the Appellant on 15th November, 2008 and in January, 2009 the wife told him that she was not well. He carried her to the hospital and she was found to be pregnant. At that time the wife was staying in Jalingo and was going to work in Mutum Biyu. When she was said to be pregnant, the DW6 got a house in Mutum Biyu from where she would go to work; and she used to go to Jalingo for her antenatal care at the Federal Medical Centre; Jalingo.
Learned counsel for the Respondent submitted that it is possible to practise deception on a one day old baby because the Appellants wife deceived PW1 by saying that the Caesarean Operation was not successful and that Pastor Shadrack D. Nans buried the remains of the dead baby. That the Appellants wife also deceived the management of Sauki Clinic, Mutum Biyu that PW1s daughter was a student, sick and would not be able to take care of the child. Being a nurse, the management of the Hospital did not therefore hesitate to give the child to the Appellants wife.
On the refusal to call the doctor to testify, learned Director of Public Prosecutions submitted that there is no law that a particular witness must be called before an offence is proved beyond reasonable doubt.
It is the law that in criminal cases, the burden is on the prosecution to prove the guilt of the accused person beyond reasonable doubt and the burden does not shift. It is not the law that the accused person proves his innocence. Even where an accused person in his statement to the police admitted committing the offence, the prosecution is not relieved of that burden so that a wrong person will not be convicted for an offence he never committed. See Nwalu vs. The State (2018) 14 NWLR (Pt. 1638) 158 at 171 and People of Lagos State vs. Umaru (2014) 3 SCNJ (2014) 114 at 137. Whether by direct evidence of eye witnesses, the confessional statement of the accused person or by circumstantial evidence, all the ingredients of the particular offence for which the accused is charged must be proved beyond reasonable doubt to warrant his conviction. See Nwalu vs. The State (supra) at page 171.
The Court below convicted the Appellant on circumstantial evidence. Circumstantial evidence is very often the best evidence. It is said to be evidence of surrounding circumstances which by undesigned coincidence is capable of proving a proposition with the accuracy of mathematics. Circumstantial evidence is sufficient to ground a conviction only where the inferences drawn from the whole history of the case point strongly to the commission of the offence by the accused person. For circumstantial evidence to ground a conviction, it must lead to one conclusion; namely the guilt of the accused person. See Ilori vs. The State (1980) 8 11 SC 81 at 86 87, Durwode vs. The State (2000) 12 SC (Pt. 1) 1 and Ubani vs. The State (2003) 18 NWLR (Pt. 851) 22.
As pointed out earlier, the Appellant was tried and convicted for criminal conspiracy contrary to Section 97(1) of the Penal Code and abduction contrary to Section 273 of the same Law.
To prove conspiracy, the prosecution must show beyond reasonable doubt that (a) There was an agreement between two or more persons to do or cause to be done, some illegal act or some act which is not illegal by illegal means; (b) Where the agreement is other than an agreement to commit an offence, that some act besides the agreement was done by one or more of the parties in furtherance of the agreement (c) That each of the accused persons individually participated in the conspiracy. Conspiracy can be inferred from the acts of doing things towards a common end where there is no direct evidence in support of an agreement between the accused persons. The conspirators need not know themselves and need not have agreed to commit the offence of conspiracy at the same time.
The Courts tackle the offence of conspiracy as a matter of inference, to be deduced from certain criminal actions of the parties concerned. See Adekoya vs. The State (2017) 1 SCNJ 62 at 83, Oduneye vs. The State (2001) 12 NWLR 88 and Daboh vs. The State (1977) SC 197.
To establish the offence of abduction the prosecution must prove beyond reasonable doubt (i) That the accused person used force on a person and (ii) That such person was thereby compelled to go from a place or (iii) That the accused induced a person to go from a place; or (iv) That he did so by deceitful means.
Did the Appellant abduct any person? The Court below answered the question in the positive upon some of the evidence which I will review presently.
In his statement to the police marked Exhibit A K the Appellant stated that he married on 15th November, 2008 and the wife got pregnant in December, 2008. The wife gave birth to their son on 8th July, 2009 at Miyetti Allah Hospital, Iware to a pre-mature baby boy. That the wife attended her antenatal clinic at Federal Medical Centre Jalingo. He had witnesses who knew that his wife was pregnant. That he is the biological father of their son and he was the person that buried the placenta in his house at Jalingo.
The prosecution tried to show that the story of the Appellant was not true without even making an attempt to check whether or not Appellants wife attended antenatal clinic at the Federal Medical Centre Jalingo. Rather the prosecution called a throng of witnesses whose evidence could not help its case. PW4 in his evidence before the Court stated in part as follows:
We now extended our investigation to Sauki Clinic Mutum Biyu where the doctor in-charge Dr. Jesseh Adi gave us statement that they actually admitted Hulda who delivered through Caesarian (sic) sectarian (sic) a baby boy alive and healthy. That before the operation was conducted the 1st accused signed the consent form. That same 5/6/2009 around 10.00pm the 1st accused came back and requested that the new born baby boy be given her that Hulda will not breast feed the child because she would be going back to school as she was discharged from the hospital; that she was the mother of Hulda therefore she signed the consent form they did not hesitate to give her the child, coupled with the fact that the 1st accused is a Nurse she could equally take care of the baby. So the baby was released to the 1st accused.
The person who told the PW4 that the Appellants wife requested for the baby the same night the mother had a Caesarean Operation because the mother of the baby was a student and would not take care of the baby was not called to testify. The name of that person was not even mentioned by the PW4. Dr. Adi who is said to have told the PW4 that a live baby was delivered after the Caesarean Operation was not called to testify in order to disprove the statement of the Appellants wife that the PW1s daughter had a stillbirth.
Therefore the Court is left with the hearsay evidence of the PW4 which is unreliable.
Why was the hospital record not tendered to show that the PW1s daughter gave birth to a live baby boy by Caesarean Operation and that the baby was given to the Appellants wife the same night of the operation because the mother of the baby could not bring up the baby? PW2 did not say that the baby had been given to the Appellant. Although the PW2 said the mother by the baby was discharged after seven days; he said nothing about her baby.
This is a pointer to the fact that PW1s daughter had a stillbirth by Caesarean Operation as the Appellants wife told the police in her statement to the police.
PW3 a cashier with the clinic also claimed that PW1s daughter gave birth to a live baby. And I ask what is the business of a cashier with a maternity ward or the theatre where PW1s daughter had the operation. On the face of the statement of the Appellants wife to the police that the PW1s daughter had a stillbirth evidence of a cashier that she gave birth to a live baby is unreliable.
As I pointed out earlier, evidence of the doctor who performed the Caesarean Operation and or records of the clinic would be evidence that a live baby was delivered by PW1s daughter through Caesarean Operation. It is not enough for PW2 and PW3 to attend Court and merely mouth that a live baby was delivered.
If the clinic gave the few hours old baby to the Appellants wife as PW4 claimed why is the clinic or any staff of the clinic who gave the live baby to the Appellants wife not being prosecuted?
It is also surprising that PW1 stayed with his daughter for six to seven days after the operation and nobody in the clinic told him that his daughters new born baby was given to the Appellants wife because his daughter was a student and could not take care of the baby.
PW1 in his evidence stated that he was in the clinic a day after the operation. He did not see the baby. The Appellants wife told the PW1 that it was a stillbirth. The PW1 was in the clinic for seven or six days with the daughter and nobody in the clinic told him anything to the contrary. Nobody in the clinic told him that the daughter was delivered of a live baby and the baby was given to Appellants wife. It will be surprising that the PW1 was in the clinic for six to seven days and did not seek to cross check what the Appellants wife told him. That is that his daughter had a stillbirth.
It cannot be the child that was delivered on 5/6/09 that the PW5 claimed to have seen at Miyetti Allah Clinic on the 8th July, 2009 because the child the Appellants wife was purportedly carrying then was only about three days old. 5th June, 2009 to 8th July, 2009 is one month.
In an attempt to tie the child of the Appellant to the one the Appellants wife said was not delivered alive, the PW1 claimed that he was told that the Appellants wife gave birth to her baby only two weeks after the Caesarean Operation on his daughter. Anyway he said he was told. Being hearsay the claim must be rejected.
The Court below erred when it relied on the evidence of PW5 to find that the Appellants wife said she gave birth at a motor park. The Appellants wife never said so either in her statement to the police or in Court. The Court below ought not have relied on hearsay evidence of PW5.
The prosecution shied away from conducting a DNA test to determine the parentage of the Appellants baby because they knew if the test was conducted, it would be in favour of the Appellant. See Section 167 (d) of the Evidence Act 2011. Despite the opinion of PW9, the medical practitioner called, that only a DNA test would give a conclusive report of the parentage of the baby the Appellants wife said she gave birth to at Miyetti Allah Clinic, Iware, Taraba State; the Court below held that there was strong evidence that the Appellants wife and the Appellant could not have given birth to the child in dispute. This is not correct in the absence of the DNA test.
From the foregoing, it is not possible to say that the baby removed from the Caesarean Operation of PW1s daughter was alive at birth.
There may be contradictions as to what happened to the macerated body. But these contradictions are irrelevant to the charge. A dead baby is not a person, it might have been a person in the womb but bless my soul it was dead even before birth.
The Appellant might even have lied as to what happened to the remains of the baby. A person may lie though innocent. Such lies may be a result of fear or stupidity or indeed anxiety. The fact that an accused person has told lies has never been accepted as proof of guilt. The fact that an accused person has told lies does not relieve the prosecution of its duty of proving the guilt of the accused of the offence charged beyond reasonable doubt. See Omogodo vs. The State (1981) 5 SC 5 at 22, Okpere vs. The State (1971) 1 All NLR and Haruna vs. Police (1967) NMLR 145.
In the instant case, PW1s daughter was foisted on the Appellants wife who was also pregnant, was working and had rushed home from work to attend to PW1s daughter who was in labour. When the macerated baby was handed over to the Appellants wife she was directed to take it immediately out of the clinic. She had to rush out with the macerated body, leave it somewhere and return to look after the PW1s daughter who had had the Caesarean Operation. She was alone with nobody to assist her that night. Nobody will doubt her when she said she had to take the dead child to her house because she was confused as she had to go back to the hospital and look after the patient who had just undergone the Caesarean Operation.
The PW1 left his daughter with the Appellants wife despite Appellants mild protest. Appellants wife was then living alone close to where she worked away from her husband because she was pregnant. Appellant was not a party to the arrangement by PW1 to leave his daughter with his wife. He was not in the clinic before and after the Caesarean Operation on PW1s daughter. He was not even in the same village with the wife.
PW5 and PW6 said Appellant was not with the wife when she came to Miyetti Allah Clinic. There is nothing from the evidence led by the prosecution to remotely suggest that the Appellant and his wife conspired to abduct any baby.
The Appellant had been married for about seven months only when the PW1s daughter had the Caesarean Operation. The Court below in my view erred when it held that the Appellant and his wife agreed to take the baby by deceit because they had not had a child five or two months into their marriage. With respect to the Court below, the Appellant and his wife are not cock and hen. They could not therefore have expected a child within two to five months of their marriage.
It is clear from the evidence adduced by the prosecution that the prosecution failed to prove the offences for which the Appellant was tried and convicted beyond reasonable doubt. The Appellant was therefore entitled to a discharge an acquittal.
The lone issue on which the appeal is considered is therefore resolved in favour of the Appellant and against the Respondent.
The appeal is allowed.
The conviction and sentence of the Appellant by the Court below are hereby quashed.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the opportunity of reading the draft of the leading judgment in this appeal, just delivered by my learned Brother, James Shehu Abiriyi, JCA.
I am at one with His Lordship, for the reasons well-articulated in the said leading judgment, that, this appeal is imbued with merit.
The Police investigation of this case was full of woeful errors and its prosecution being in furtherance of same failed abysmally to establish beyond reasonable doubt the offences with which the Appellant was charged and tried. Equally, the conviction and sentence of the Appellant by the trial Court in those circumstances were erroneous and wrongful in law and liable to be set aside by this Court.
Consequentially, the charges preferred against the Appellant by the Respondent at the trial Court are hereby quashed. Further, the judgment of the trial Court which convicted and sentenced the Appellant to a term of imprisonment and fine is hereby set aside. The Appellant is accordingly discharged and acquitted.
SAIDU TANKO HUSSAINI, J.C.A.: I have read in draft the lead Judgment just delivered by my Lord, James Shehu Abiriyi, JCA and I agree with his reasoning and conclusion.
The burden duty to prove the guilt of an accused person squarely rest on the shoulders of the Prosecution. He must discharge this burden by a standard of proof beyond reasonable doubt.
Anything short of this entitles the accused person to an order of discharge and acquittal.
From the proceedings in the printed record of Appeal before us, it is apparent that the prosecution did not discharge the burden on him to prove the quilt of the accused/appellant. He did a shoddy job. Persons who should have been called as witness were never invited, thus leaving more questions than there are answers. The Court below ought to have entered an order of discharge and acquittal in favour of the appellant.
This appeal succeeds and same is allowed. The conviction and sentence of the accused now appellant is hereby quashed. An order of discharge and acquittal is entered accordingly. I abide by other orders contained in the lead Judgment.
Appearances:
I. C. Osuji, Esq.For Appellant(s)
Hamidu Audu, Esq. (Director Public Prosecutions, Ministry of Justice, Taraba State)
For Respondent(s)
