NNENANYA v. STATE (2020)

NNENANYA v. STATE

(2020)LCN/14152(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Thursday, May 07, 2020

CA/C/457C/2018

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Ita George Mbaba Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Between

CHRISTIAN CHARLES NNENANYA APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

FACTORS THAT A CONFESSIONAL STATEMENT ADMISSIBLE

Counsel on both sides have agreed as to what makes a confessional statement admissible to be relied upon to sustain conviction, as per the decision in the case of Afolabi Vs State (2016) LPELR – 40300 (SC), whether there is:
(1) Anything outside the confession to show that it is true;
(2) It is corroborated in any way;
(3) There are relevant statements of fact made in it (most likely to be true) as far as can be tested;
(4) Did the accused have an opportunity of committing the offence?
(5) Is the confession possible?
(6) Is the alleged confession consistent with other facts which have been ascertained and established?” See also Kazeem Vs State (2009) ALL FWLR (Pt.256) 1773; Yunusa Vs State (2017) LPELR – 43014 (CA); The State Vs Iheanachor (2019) LPELR – 49301 (CA); Galadima Vs The State (2012) LPELR – 15530 SC. PER MBABA, J.C.A.

THE VOLUNTARY NATURE OF A CONFESSIONAL STATEMENT

Of course, by a proved confessional statement, the accused person who made it, appears to have yielded to the inner voice of conscience, which always counsels and encourages offender to tell the truth admit/accept his fault as a mark of remorse and quest for absolution. A true confessional statement comes from strength and courage, not from a fickle mind and by it the accused person closes every door of defence against himself and only waits for mercy. That is why confession must be voluntary, free, un-induced and uninfluenced, except by conscience. See Osuji Vs State (2016) LPELR – 40042 CA; Obasi Vs State (2014) LPELR – 24013 CA and Okemmiri Vs FRN (2015) LPELR – 24485 CA, where we held: “It has been stated, several times, that a confessional statement is the best and strongest evidence of guilt, as by it the Accused person surrenders himself and closes every door of defence against himself. Salahudeen Vs The State (2013) LPELR – 21851 CA; Akpa Vs State (2008) ALL FWLR (Pt.420) 644.” PER MBABA, J.C.A.

AN IDENTIFICATION PARADE

As rightly submitted by Counsel on both sides, an identification parade, or need to clearly identify an offender is only necessary, where and when the victim or witness did not have opportunity to see/know him, in some intimate way or at close range, to leave some lasting impression of the offender on the victim or witness. Such parade would be the case, where the victim or witness never met the offender before the attack and the attack lasted in a split movement, leaving no room for acquaintance and/or strong interaction. See the case of Ikemson Vs State (1989) 6 SC (Pt.5) 1 at 14; Auta Vs The State (2018) LPELR – 44490 (CA) and Idowu Vs The State (2019) LPELR – 48459 CA, where it was held:
“On when an identification Parade is necessary, the Supreme Court in the case of Wisdom Vs The State (2017) 7 NWLR (Pt.1586) 446 at 468 paragraph B – F held as follows: “In Akeem Agboola Vs The State (2013) 11 NWLR (Pt.1336) 619… I had opined that an identification parade only becomes necessary where the victim did not know the accused before his acquaintance with him during the commission of the offence, where the victim saw the offender for a short time, where the victim might not have the opportunity of observing the features of the accused.” An identification would become necessary only in the following situations of visual identification:
(i) Where the victim did not know the accused person before and his first acquaintance with him during the commission of the offence.
(ii) Where the victim was confronted by the offender for a very short time and
(iii) Where the victim due to time and circumstances, might not have had the full opportunity of observing the features of the accused.” PER MBABA, J.C.A.

CRIMINAL TRIALS INVOLVING MORE THAN TWO OR MORE ACCUSED PERSONS

But it should be taken with caution, as it should be noted that, in criminal trial involving two or more accused persons, the conviction or acquittal of one does not, automatically, translate to the conviction or acquittal of all the others, charged therein, as each accused has a separate case, and the Court must rely on the evidence generated for or against each of the accused persons, separately, except where the charge is inter-woven and any doubt established, would accrue to all the accused persons in the Charge. SeeMorufu Bolanle vs. The State (2004) LPELR – 7403 (CA); Akpan & Ors vs. The State (2002) LPELR – 373 (SC); Ilodigwe vs. State (2012) LPELR – 9342 (SC); Hassa vs. The State (2012) LPELR – 14358 (CA) and the case of Idiok vs. The State (2008) 6 MJSC 36 at 49, where the Supreme Court said that:
“It is not the law that once an accused person is discharged and acquitted, the co-accused must as a matter of course of routine be discharged and acquitted, like the right following the day and vice versa. It is not so. There is no such automatic position. It depends entirely on the facts of the case before the Court. Court would only be right in discharging and acquitting the co-accused if the evidence in exculpation of the two accused, persons is the same and nothing but the same and not merely some nexus or proximity.” PER MBABA, J.C.A.

INGREDIENTS TO ESTABLISH THE CRIMINAL OFFENCE OF CONSPIRACY

“The law is trite, that in a charge of conspiracy to commit felony, the basic ingredients to be established is agreement by the conspirators, to pursue the unlawful act. In the case of Adeyemi Vs State (2012) ALL FWLR (Pt.606) 492 at 511, it was stated that, to prove conspiracy:
(1) There must be two or more persons in concert;
(2) They must form a common intention;
(3) The common intention must be towards prosecuting an unlawful purpose;
(4) An offence must be committed in the process;
(5) The offence must be of such a nature that its commission was a probable consequence of the conspiracy.”
Of course, often direct proof of working in concert to achieve an ignoble purpose is difficult to establish, and so the Court may have resort to inferences. See the case of Dr. Segun Oduneye Vs The State (2001) FLWR (Pt.38) 1203 at 1205, where the Supreme Court held: “Since the gist of the offence of conspiracy is embedded in agreement or plot between the parties, it is rarely capable of direct proof; it is invariably an offence that is inferentially deduced from the acts of the parties thereto, which are focused towards the realization of their common intention or mutual criminal purpose. It is predicated on circumstantial evidence, which is evidence, not of the fact in issue, but of other facts which facts in issue can be inferred. Evidence in this connection must be of such quality that irresistibly compels the Court to make an inference as the guilt of the accused…” PER MBABA, J.C.A.

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the judgment of Akwa Ibom State High Court, in Charge No. HU/62C/2015, delivered by Hon. Justice Okon A. Okon, whereof the lower Court convicted the Appellant (together with 3 other Accused persons) for kidnapping and sentenced him to death by hanging. The Court, however, discharged him on the Charge (Count) of conspiracy.

At the lower Court, Appellant was tried (as 2nd Accused person) on Information, as follows:
“Statement of Offence – Count I
Conspiracy Contrary to Section 552 of the Criminal Code Cap 38, Vol. 2, Laws of Akwa Ibom State of Nigeria, 2000.
Particulars of Offence
Bernard Efe Ajomayan, Christian Charles Nnenanya, Daniel Samuel West, Shedrack Dick Dala and Victoria Godspower Akpan on or about the 19th day of March, 2015 at No. 10 Idak Okpo Lane, Uyo, in the Uyo Judicial Division did conspire amongst yourselves to commit a felony, to wit kidnapping.
Statement of Offence – Count II
Kidnapping contrary to Section 1(1) (a) and (2) of Akwa Ibom State Internal Security and Enforcement Law, 2009.

Particulars of Offence
Bernard Efe Ajomayan, Christian Charles Nnenanya, Daniel Samuel West and Shedrack Dick Dala on or about the 19th day of March, 2015 at No. 10 Idak Okpo Lane, Uyo, in the Uyo Judicial Division kidnapped one Dr. Usen Bassey Akpan.
Statement of Offence – Count III
Aiding kidnapping Contrary to Section 10(1) (d) and (2) of the Akwa Ibom State Internal Security and Enforcement Law, 2009.
Particulars of Offence
Victoria Godspower Akpan on or about the 19th day of March, 2015 at No. 10 Idak Okpo Lane Uyo, in the Uyo Judicial Division aided kidnapping of one Dr. Usen Bassey Akpan.”

Appellant was arraigned on 17/11/2015 and he pleaded Not guilty to the Charge (as the other accused persons did). After taking evidence from the witnesses and listening to the addresses of Counsel, in a considered decision, the trial Court held, as follows:
“Since the evidence led by the prosecution in support of this Count (one) is at variance with the Charge as laid, I hold that the guilt of the Accused persons has not been proved beyond reasonable doubt. Accordingly all the accused persons are discharged and acquitted in Count

I of the Information… I convict each of the 1st – 4th Accused persons in Court II of the Information. The 5th Accused person is also discharged and acquitted in Count II (sic) of the Information… Notwithstanding the plea of the 1st – 4th Accused persons for leniency, the position of the law is that wherein a provision of the law, a mandatory sentence is provided for, the trial Court, upon the conviction of the offender, must hand down or impose such mandatory sentence as no discretion is vested or reserved in the Court to exercise in passing such sentence. Akwa Ibom State Internal Security and Enforcement Law, 2009 under which the 1st, 2nd, 3rd and 4th Accused persons are Charged for the offence of kidnapping prescribes death sentence to convicted offenders; And that is what the 1st – 4th Accused persons, in this case, are deservedly, liable to get.
The sentence of this Court upon you Bernard Efe Ajomayan; Christian Charles Nnenaya; Daniel Samuel West and Shedrack Dick Dala, is that each of you be hanged by the neck until each of you be dead, and may the Lord have Mercy on Your Souls.” Pages 250 – 251 of the

Records of Appeal.

That is the decision Appellant has appealed against, as per the Notice and Grounds of Appeal on pages 253 – 259 of the Records of Appeal, disclosing 8 Grounds of Appeal. Appellant filed his brief of arguments on 7/12/2018, distilling three (3) Issues for the determination of the Appeal, as follows:
(1) Whether the trial Court was right to rely and convict the Appellant based on Exhibit B (extra judicial statement), given the established evidence of its improbability. (Grounds 2, 3 and 6)
(2) Whether the dock identification of the Appellant for the first time by the prosecution witnesses as one of the persons that kidnapped Dr. Usen was proper in law to warrant his conviction by the trial Court. (Grounds 1, 4 and 5)
(3) Whether the trial Court was right in not resolving the doubts created by the prosecution in favour of the Appellant. (Grounds 7 and 8).

The Respondent filed its brief as well as a cross Appeal. The Cross Appellant’s Brief and Respondent’s Brief were filed on 28/2/2019 and deemed duly filed on 17/10/2019. In the Respondents’ Brief, the State distilled a lone issue for the

determination of the Appeal, namely:
Whether from the totality of the evidence adduced, during the trial, the prosecution had not proved the offence of kidnapping against the Appellant beyond reasonable doubt.”

The Cross Appeal had to do with the discharge and acquittal of the Appellant in Count I for offence of conspiracy. (More will be said about this later).
Appellant filed a Reply Brief on 16/3/2020, which was deemed duly filed on 27/4/2020, the day this Appeal was heard.

Arguing the Appeal, learned Counsel for the Appellant, Abasiodiong Ekpenyong, Esq, on the Issue one, said that the law requires confession to be free and voluntary, direct and positive, and properly tested and proved for it to sustain a conviction. He relied on the case of Buba Vs State (1992) 1 NWLR (Pt.215) 19. He also relied on Ajiboye Vs FRN (2018) LPELR – 4468 (sic) (44468) SC, on the conditions for the admissibility of a confessional statement, and submitted that the Exhibit B (extra judicial statement of Appellant) did not satisfy the conditions stipulated by law; he said that it was in evidence that Appellant was arrested in Rivers State on

5/4/2015 and transferred to Uyo on the same day, but that the Respondent could not explain how investigations concluded on 6/4/2015 and a report made, which was admitted in evidence as Exhibit L and the Exhibit L contained statement of Accused person, made about 19 days after the investigation was concluded the statement was made precisely on 23/4/2015 and admitted as Exhibit B. Counsel said that the unchallenged account of torture meted out on the Appellant a day after his transfer and the eventual preparation and conclusion of Exhibit L, remained unresolved, remaining as a pointer to why the Exhibit B was highly improbable; that if it ever was, it came from most tortuous circumstances, as Appellant stated.

Counsel also relied further on the case Afolabi Vs State (2016) LPELR – 40300 (SC) on the conditions to be satisfied for a confessional statement to make a ground for conviction, namely:
(a) “need for anything outside the confession to show that it is true;
(b) is it corroborated in any way;
(c) are the relevant statements of fact made in it (most likely to be true as) far as can be tested;
(d) did he (accused) have

an opportunity of committing the offence;
(e) is the confession possible;
(f) is the alleged confession consistent with other facts which have been ascertained and established?”

Counsel said in admitting and relying on Exhibit B, the trial Court failed to apply the above listed tests for the Exhibit B to ground conviction, as prescribed in the above case; he said that if the trial Court had adopted the tests, the conviction would have been avoided. He referred us to the evidence of PW3 (the Police Officer who investigated the case) on pages 172 to 173 of the Records, to suggest that the Exhibit L (Police Report) created doubt about the integrity of the Report and of the statement of the accused persons (including the Exhibit B)!

Counsel said “from the above excerpt of cross examination, PW3 admitted that he had done everything, including obtaining Exhibit B (Statement of Appellant) before coming up with Exhibit L. It is an elementary principle of law that admitted facts needs no further proof. The unresolved question, therefore is, if PW3 had concluded investigation and made Exhibit L on the 6/4/2015, how was it possible that

the facts contained in Exhibit B, dated 23/4/2015, found its way into Exhibit L that was made almost three weeks afterwards?” (Paragraph 3.7 of the Brief).

Counsel concluded by saying that the Exhibit B was not voluntary; that Appellant was compelled to make it to satisfy the intention of the prosecution. Counsel referred us to the finding of the trial Court on pages 247 – 248 of the Records of Appeal, as related to the Exhibit E, allegedly made by the 5th Accused person (who was discharged and acquitted), that 5th Accused could not have made the Exhibit E, outside the date of conclusion of the investigation by PW3 as in Exhibit L. Counsel said that the doubt that weighed on the mind of the Court in respect of Exhibit E, also applied to the Exhibit B. He urged us to so hold. He relied on the cases of Yunusa Vs State (2017) LPELR – 43014 (CA); Kazeem Vs State (2009) ALL FWLR (Pt.256) 1773, on how to impeach an extra judicial statement of an accused person, or proof that it was not made voluntarily.

On Issue 2, the identification of the Appellant by prosecution for the first time in the dock, Appellant’s Counsel said the

Respondent failed to lead credible evidence to prove the identity of the Appellant as one of the kidnappers of Dr. Usen Bassey Akpan on 19/3/2015. He relied on Idowu Vs State (2011) LPELR – 3597 (CA), to say that the prosecution failed to lead substantial, cogent and credible evidence linking the Appellant to the offence. He also relied on Mohammed Vs The State (2017) 13 NWLR (Pt.1583) 386 at 421, on the need to prove the offence beyond reasonable doubt. He referred us to case of Okashetu Vs The State (2016) LPELR – 40611 SC on the ingredients of offence of kidnapping, that:
(a) the victim was seized and taken away by the accused person;
(b) the victim was taken away against his consent;
(c) the victim was taken away without a lawful excuse.

Counsel said that the identity of the accused person and his complicity in the commission of crime alleged against him is the most serious critical judicial exercise in the administration of criminal justice. In this case, Counsel said that the first ingredient that the victim was seized and taken away by the accused person, was not established in line with the requirement of law, to warrant

his conviction; he said that the identity of the accused becomes an issue at the trial, where:
(a) The victim did not know the accused person prior to the time of the alleged crime and his acquaintance with him (accused) was during the commission of the offence.
(b) The victim or witness was confronted by offender, for a very short time.
(c) Due to time and circumstances of the encounter, the victim might not have had full opportunity to observe the features of the accused.

He said that in such situations, as stated above, it is desirable that an identification parade be conducted so as to clear doubt about the evidence of identity. He relied on the case ofAlebiosu Vs State (2016) LPLER – 41359 (CA); Nnadi Vs State (2016) LPELR – 40924 (CA). Counsel referred us to the evidence of PW1, PW2 and PW3 about the identity of the Appellant on pages 89, 92, 94, 95, 99, 101 – 102 and 109, 172 of the Records. Counsel submitted that the findings of the trial Court, that “the identity of the 1st – 4th Accused persons was not in doubt in this case and they have been sufficiently linked to the kidnap of PW1…”

was not supported by evidence adduced at the trial; he said that there is nowhere in Exhibit L that the PW1 indicated that he could identify those who kidnapped him, but rather that he had clearly identified the accused persons to the Police in the Exhibit. He added that the findings contradicted the evidence of PW1 and PW2, under cross examination. He cited the case of Madagwa Vs State (1987) 4 NWLR (Pt.64) 172 to say that identifying Accused in the dock in Court is inappropriate. He conceded that identification parade is not necessary in all cases, but stated again, when it would be needed, relying on Auta Vs The State (2018) LPELR – 44490 CA and R Vs Turnbull & Ors (1776) 3 AER 549; Ikemson Vs State (1989) 6 SC (Pt.5) 1, to the effect that “Identification is very essential and useful, wherever there is doubt as to the ability of the victim to recognize the suspect who participated in carrying out the crime.”

Counsel said that the evidence by the PW3, that 2nd Accused (Appellant) was arrested at a checking point by Police in Rivers State and his co-accused was shot, when he tried to run away, and that exhibits (including N1,000,000.00

– ransom money) recovered from them (the accused), was all hearsay, as he (PW3) did not even know the name of the Police Officer who did the arrest in Rivers State. He relied on the case of Kala Vs Potiskum (1998) 3 NWLR (Pt.540) 1 at 15 – 15, on when a hearsay statement can be admissible. Counsel said that the information given by the Police in Rivers State about the circumstances and of property of PW1 recovered at the point of arrest, by PW3 (who himself was told of the event) did not amount to a discovery made by him in the course of his investigation, and so the evidence of PW3 in support of the arrest and recovery of the ransom money (and indeed other exhibits) was hearsay, and inadmissible in law. Counsel also wondered why the prosecution did not produce the personal effects of the PW1 (Dr. Usen Bassey Akpan) said to have been recovered from Appellant (and the other accused) at the point of his arrest; he said that that failure created doubt about the certainty and cogency of the account linking Appellant with the offence. He relied on the case of Ukpamazi Vs State (2016) LPELR – 42113 CA, where Tur JCA (of blessed memory) said:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“The properties of the deceased recovered from the custody of the second suspect gave credence to the fact that the Appellant committed the offence for which he was arraigned in Court.”

Counsel said again, that assertion of the Respondent, that the Appellant was arrested and transferred with the property of PW1, from Rivers State to Akwa Ibom State were not founded on facts, and were hearsay and so inadmissible; that, if they were, the transferred documents from Rivers State, the initial investigation report from Rivers State (which would have undoubtedly led to the rest of the circumstances upon which Appellant was arrested, property recovered (if any) and other vital information) would have been hastily produced by the Respondent. Counsel said that what was before the Court was the Exhibit L (Police Report) and PW3’s testimony, and nothing more; he said that these two set of evidence did not support each other and same was unreliable. He relied on the dictum of Niki Tobi JSC (of blessed memory) in the case of Adamu Suleman & Anor Vs C.O.P. Plateau State (2008) LPELR – 3126 (SC), who said:

“The so called useful statements, if they exist, are official documents which ought to have been deposed to in a counter affidavit. It is the general principle of law that where there is a document, oral evidence is inadmissible. The document must be produced. I am also with the learned Counsel for the appellant, when he urged this Court to invoke Section 149(d) of the Evidence Act, which is to the effect that the Respondent failed or refused to produce the so called useful documents, because if they were produced, they would have been unfavourable to him. I very much doubt the existence of the so called useful statements. If they exist, the Police will be the first to depose to them with all the alacrity.”

Counsel said the Rivers State Command Police investigation report did not exist, and if it existed would be against the prosecution, hence the non-production.

On Issue 3, whether the trial Court was right to fail to resolve the doubts created by the prosecution in favour of Appellant, Counsel answered in the negative. He said that, contrary to the findings of the trial Court, the evidence of PW1, PW2 and other exhibits, in no way, provided any evidence, (outside

the confession) that could make it probable that Appellant was involved in the kidnap of the victim in this case; that it cannot be said, with any degree of conviction and certainty, that the prosecution proved the charge, beyond reasonable doubt. He relied on the case of Attah Vs State (2010) ALL FWLR () 1224 at 1245 – 1246 on the standard of proof of criminal offence. He also relied on Ndidi Vs The State (2007) LPELR – 1970 (SC). He argued that the Court based its decision on speculation; and said that, there was no credible evidence to found the conviction, as the confessional statement of the Appellant, became improbable or impossible, in the face of the date of the Police Report (Exhibit L).
He urged us to resolve the Issues for Appellant and allow the Appeal.

Responding, Uwomedimoh Nwoko, Esq, the Learned Attorney General of Akwa Ibom State, on their lone Issue, urged us to resolve same in the affirmative; that the prosecution had proved the offence of kidnapping against the Appellant beyond reasonable doubt, through the evidence of PW1, PW2, PW3 and the confessional statement of the Appellant (Exhibit B). Counsel relied on the case

Umoh Vs The State (2013) LPELR – 21410 CA for the definition of kidnapping – that it means,
“… to seize and take away a person by force or fraud with or without a demand for ransom. (Section 16 of the Akwa Ibom State Internal Security and Enforcement Law, 2009).

Counsel also relied on the Legal Pedia Law Dictionary with Nigerian cases, to the effect that kidnapping is:
“To confine a person against his or her will; kidnapping is the stealing and carrying away, or secreting of a person of any age or either sex, against the will of such a person, or if he be a minor, against the will of his friends or lawful guardians.” Per Otisi JCA in Umoh Vs State (supra).

Counsel too stated the ingredients of the offence of kidnapping, which must be proved beyond reasonable doubt, as follows:
(1) The victim was seized and taken away by the accused person;
(2) The victim was taken away against his consent;
(3) The victim was taken away without lawful excuse – Okashetu Vs State (2016) 15 NWLR (Pt.1534) 126 at 148; Ewugba Vs State (2018) 7 NWLR (Pt.1618) 626.

Counsel said, once there is a carrying

away of a person against his will or without lawful excuse, with or without the demand for ransom, the offence of kidnapping is complete. He said that the evidence of PW1 (Dr. Usen Bassey Akpan) has shown that he was kidnapped in his Clinic, at No. 10 Idak Okpo Lane, Uyo on 19/3/2015 by the Appellant and his co-accused persons; he (PW1) was taken away in his vehicle, to a building in the remote area and later to the forest, from 19/3/15 to 24/3/2015, where he was released after the payment of ransom (N1,000,000.00); that Appellant and his co-accused left the PW1 in the forest under the care of two other men (who were yet at large and not arraigned); they went away with PW1’s Cheque Book, International Passport, Voter’s Registration Card, National Identity Card and Drivers Licence. (See pages 88 to 91 of the Records of Appeal).

Counsel said the evidence of PW1 was corroborated by that of PW2 and PW3; that PW2 who witnessed the kidnap, said that 2nd Accused person came into PW1’s Clinic on 19/3/15, in company of the 3rd Accused person, as a sick person; paid registration fee of N1,000.00, and a patient card written for the 2nd Accused;

they were asked by PW2 to wait for the doctor to finish with the patient in the consulting room; upon the said patient coming out, she ushered the 2nd and 3rd Accused into the consulting room; that as she went to PW1’s Office to collect injection to administer to other patients in the ward, she saw the Appellant and his co-accused persons pointing guns at PW1 and coming out with him. They took PW1 and drove away in PW1’s car. (Pages 99 to 100 of the Records)

PW3, Sgt Matthew Onoja testified that on 19/3/2015, the wife of PW1, by name Agness Bassey Akpan, came to lodge complaint of the kidnap of the husband (PW1). The Police swung into action, and information circulated to other security agencies and signals sent to other Police Commands in Rivers State, Abia State and Cross Rivers State. The kidnappers opened contact with the family of the victim, demanding for N15Million ransom; they used PW1’s phone number to call the family; they finally collected N1Million from the family, before PW1 was released. The signals sent to other States yielded result, as the Appellant and his co-accused persons were arrested at a Police check point in

Rivers State. The Police at the check point stopped a commercial vehicle that conveyed the Appellant and co-accused persons from Akwa Ibom State. They were searched and the sum of N1Million (N1,000,000.00) together with guns, the victims, International Passport, Zenith Bank Cheque Book, two phones were recovered. The Rivers State Police Command sent signal to the Akwa Ibom State confirming the arrest of the accused persons, who were subsequently transferred to Akwa Ibom State Police Command (Pages 108 to 109 of the Records).

Counsel said the evidence of PW1, PW2 and PW3 were not contradicted and/or controverted during cross examination and so remained strong, cogent and reliable, and was believed by the trial Court.

Furthermore, Counsel said the Appellant’s statement to the Police admitted after trial-within-trial, confirmed the kidnap of PW1 (Pages 40, 239 and 240 of the Records). Counsel submitted that there can be no account of the commission of a crime more accurate than the account of an accused person, narrating how the offence was committed, and the role he played; he said that once a statement is proved to have been voluntarily made (as

in the instant case) and is direct, unequivocal and clear admission that the accused committed the offence, it is sufficient to sustain a conviction. Counsel relied on the case of Ogedengbe Vs State (2014) ALL FWLR (Pt.752) 1724 at 1726.

Counsel said that in Exhibit B the Appellant narrated how PW1 was kidnapped and the role he played, with his co-accused in the kidnapping. And circumstantially, the personal belongings of PW1 (the victim) were found with the Accused person (Appellant), including the N1Million ransom money, his International Passport, Zenith Bank Cheque Booklet, and guns were found on the Accused persons (Appellant inclusive).

Counsel referred us to the findings of the trial Court on pages 239 – 240 and 242 – 245 of the Records:
“The 1st – 4th accused persons in their separate statement to the Police (Exhibits A, B, C and D, respectively) confessed that they kidnapped PW1 on 19/3/2015. They provided detail of how they were contacted and/or mobilized for the operation. They also owned up to the fact that they were arrested by the Police at a check point in Rivers State and the ransom money and their guns

recovered from them, following search by the Police of the vehicle they boarded from Uyo to Port Harcourt after the said operation. The 1st – 4th Accused persons also accepted that they were transferred from Rivers State to Akwa Ibom State. (Pages 239 – 240 of the Records).

Counsel added that the extra judicial statement of an accused person, which was tendered at the hearing, forms part of the evidence called by the prosecution and is therefore looked upon from the stand point of the onus on the prosecution to prove their case beyond reasonable doubt. Adebayo Adeyemi Vs The State (2012) 9 ACLR 203.
Counsel urged us to resolve the Issue against the Appellant and to dismiss the Appeal.

RESOLUTION OF THE ISSUES
I think the Issue for determination of the Appeal, as distilled by the Respondent, is apt, and is a beautiful summary of the 3 Issues by the Appellant. I shall however, rephrase the said Issue as follows:
“From the totality of the evidence adduced at the trial, including the confessional statement by the Appellant (Exhibit B), did the prosecution prove beyond reasonable doubt, that PW1 was kidnapped and that

Appellant was one of the kidnappers?

A brief fact of this case, at the Lower Court shows that PW1, a medical doctor, was kidnapped at his Clinic at No. 10 Idak Okpo, Lane Uyo, Akwa Ibom State on 19/3/2015 by kidnappers, who decoyed as patient(s), bought ticket (card) to see the doctor, on consultation, and on being ushered in to see the Doctor by the PW2 (who was the staff on duty at the reception), they (kidnappers) pulled out guns, ransacked the Clinic, stole properties and walked the Doctor away into his Car, and zoomed off. The PW2 and others witnessed this rather horrifying live-movie by the kidnappers, who pretended to be patients seeking consultation; to the marching out of the Doctor, on gun point and zooming away.

Quite impressively, the Police swung to action, on being informed of the kidnap, and sent signals to other states – particularly neighbouring States of Rivers, Abia and Cross River States. The Appellant and his Co-accused (that is, 1st to 3rd Accused) were arrested in Rivers State at a Road Check Point as they were escaping with their loot, after forcing a ransom of one Million Naira (N1,000,000.00) out of the family of

the Doctor (PW1). They were caught with the said One Million Naira ransom, and the personal effect (property) of the Doctor, which they took away at the time of kidnap, including his International Passport, Zenith Bank Plc Cheque Book, Voter’s Card, Driving Licence and National Identification Card. The Police in Rivers State had quickly linked up with the Akwa Ibom State Police Command and transferred the Accused persons and the recovered items to the Akwa Ibom State Command.

I think the Police did an excellent job in quickly sending signals about the kidnap and mounting surveillance to arrest the criminal gang as they escaped with the ransom on 24/3/2015 in a commercial sienna car from Uyo to Port Harcourt. And I think arresting them, with their guns, the ransom money (N1Million) and the personal property of the victim (PW1) in far away Rivers State, should silent every grandstanding by the kidnappers, as the guns, ransom money and personal property of the victim found on them at the point of arrest, appeared to be a divine handwork, linking the arrested persons to the kidnap, to expose and disgrace the evil agents of wickedness. I am

therefore not surprised that, in such circumstances, they (including Appellant) made confessional statements, admitting the crime and giving details of how they carried out their evil operation.

(Pages 17 to 18 of Exhibit L carry what the Toyota Sienna Driver (Friday Godwin Otekwu) allegedly said admitting being accosted on 24/3/2015 on their way to Port Harcourt from Uyo, as he drove the 1st to 4th Accused on a drop; that the accused were arrested at a check point at Akpaju Junction, and guns, money and other items founds on them).

The Appellant’s confessional statement (Exhibit B) was admitted after a trial-within-trial. See page 161 – 163 of the Records, where the trial Court held, as follows:
“I have also examined the Defence of the Accused persons in the trial-within-trial. I find nothing in the statements sought to be tendered by the prosecution in this case showing that any was a product of “question and answer session.” The statements are all in narrative form. I disbelieve the Accused persons that they were tortured and/or unduly influenced to make their statements sought to be tendered by the

prosecution in this case… I believe prosecution that all the accused persons in this case made voluntary statements to PW1 (sic) in this case and I also believe the evidence of PW1 (sic) that he took all the Accused persons before a superior Police Officer, before whom the accused persons accepted their statements sought to be tendered in this case as their voluntary statements.”
In the light of the inferences findings and conclusions above, on the acceptable evidence before the Court, I shall admit the Statements of the Accused persons in evidence as exhibits in the case. Accordingly:
(iv) The statement of the 2nd Accused person, dated 23/4/2015, is admitted as an exhibit and marked Exhibit B.

I have not seen where Appellant raised any credible ground of appeal against those (above) profound findings of the trial Court, apart from what I consider a feeble side concern of Appellant’s Counsel, relating to discrepancies in the Police Report (Exhibit L) vis-à-vis the PW3 (I.P.O) evidence in Court, when Appellant, in ground 2, said:
“The Court erred in law in admitting the statement of the appellant (Exhibit B)

(sic) as being given the established circumstances of this case.”

I cannot see the correlation between the alleged admission by PW3 that a co-accused was shot by a Police Officer and the attempt to impeach the integrity of the confessional statement, the Exhibit D. There is no circumstance in this case, in my view, capable of faulting the admissibility of the Exhibit B.

In the circumstances that the victim’s personal property were found in possession of the Appellant (and his co-accused), together with the N1Million ransom money and the guns, at the time of their arrest, one wonders what further force was been necessary again, or stronger, to induce Appellant to make Exhibit B, as I think, there was no more hiding place for the Appellant and that the confession became imperative, not optional, in the circumstances.

Appellant’s Counsel has tried brilliantly, to make or invent unnecessary issues about the admissibility of the Exhibit B, which, in my opinion, cannot affect the integrity of the confessional statement – that it was made by Appellant and under acceptable atmosphere, devoid of unlawful pressure.

Appellant’s Counsel appeared rather concerned about the Report by the Police (Exhibit L), that considering its date of issue, it could not have contemplated the statement of the Appellant in Exhibit B. I do not think any such discrepancy about the date of the Exhibit L would have any negative effect on the integrity of Exhibit B, which Appellant had admitted making (even though he belatedly, tried to deny its voluntariness, saying that it was induced by torture).

See also Kazeem Vs State (2009) ALL FWLR (Pt.256) 1773; Yunusa Vs State (2017) LPELR – 43014 (CA); The State Vs Iheanachor (2019) LPELR – 49301 (CA); Galadima Vs The State (2012) LPELR – 15530 SC.
I think Exhibit B had satisfied the above tests, to merit its admissibility and reliance by the trial Court to sustain the conviction of the Appellant. It is the law that “a confessional statement, once properly proved, is sufficient to sustain a conviction, despite any retraction by the maker, as it is in the instant case.” See Galadima Vs The State (supra); Egboghonome Vs The State (1993) 7 NWLR (Pt.307) 383); Idowu Vs State (2000) LPELR – 1429 (SC).
In the case of Adeyemi Vs The State (2014) LPELR – 23062 SC, it was held:
“It is to be reiterated that a confessional statement is really the best evidence or the strongest against an accused in the determination of his guilt. Therefore, when such a statement has been proved to have been made, voluntarily and it is direct, positive and unequivocal, then it is an admission of guilt and can even stand alone to sustain a finding of guilt that is without corroboration.” Per Peter – Odili JSC

See also John Vs State (2019) LPELR – 46936 (SC):
“It is settled law that confessional statement is the best evidence in our criminal procedure. Once it is admitted in evidence, the trial Court can safely convict an accused person, based on his confessional statement. See Solola Vs State (2005) 11 NWLR (Pt.937) 460; Igri Vs State (2012) 16 NWLR (Pt.1327) 522 at 542.” Per Okoro JSC.
Of course, by a proved confessional statement, the accused person who made it, appears to have yielded to the inner voice of conscience, which always counsels and encourages offender to tell the truth admit/accept his fault as a mark of remorse and quest for absolution. A true confessional statement comes from strength and courage, not from a fickle mind and by it the accused person closes every door of defence against himself and only waits for mercy. That is why confession must be voluntary, free, un-induced and uninfluenced, except by conscience. See Osuji Vs State (2016) LPELR – 40042 CA; Obasi Vs State (2014) LPELR – 24013 CA and Okemmiri Vs FRN (2015) LPELR – 24485 CA, where we held:

“It has been stated, several times, that a confessional statement is the best and strongest evidence of guilt, as by it the Accused person surrenders himself and closes every door of defence against himself. Salahudeen Vs The State (2013) LPELR – 21851 CA; Akpa Vs State (2008) ALL FWLR (Pt.420) 644.”

Of course, when every door of defence has been shut by the Accused person in a proved confessional statement, it is futile for his Counsel to struggle to open any door of escape for the offender on appeal, by means of brilliant argument and legal gymnastic/dexterity. Address of Counsel, no matter how brilliant, cannot become evidence required to found a case. Amah Vs Amah (2016) LPELR – 41087 (CA); Olatinwo Vs State (2013) LPELR – 19979 (SC); Ezeani Vs FRN (2019) LPELR – 46800 SC.

Appellant’s Counsel has tried to raise a heavy weather about the identity of the Appellant; that Appellant was only identified at the dock by the Prosecution, and that there was no identification parade conducted by the Police for the PW1 (victim) to identify the persons who kidnapped him. I do not see any foundation of this argument in the evidence

on Records. I do not think identity was an issue in this case, upon the Appellant (and co-accused) having been arrested with the victim’s personal properties, and the N1Million ransom money, and was clearly recognized by both the PW1 and the PW2, who saw him (Appellant) and his co-accused, at the time of the kidnapping. In his evidence, the PW1 had said:
“Yes, I know the accused persons… I know the 1st – 4th accused persons since 19th March, 2015… At about 11am on 19/3/2015 a patient registration card was brought to my consulting room and two young men were ushered in. The two young men I am referring to are the 2nd and 3rd Accused persons. The 2nd Accused was moving as if he was under serious pains and he was helped into my consulting room by the 3rd Accused. The 2nd Accused complained that he fell from an excavator. He claimed he was working for a construction company. As I was examining him, the 2nd and 3rd Accused persons brought out guns and ordered me to sit down and to co-operate with them. At that point, two other men came in. They are the 1st and 4th Accused persons. They ransacked the whole Clinic from ward to

ward and collecting had–sets (sic) from patients and nurses. They removed money from my office and took my car key and positioned the car for quick take – off after the operation. When the car was well positioned, they then moved me into the car, Lexus RX300 Sport Utility Vehicle (SUV). When I was inside the car, they covered my face with clothe and drove me to a building in a remote area. They kept me inside a room in the building. In the night of the following day, they took me from the building to a forest. While inside the building, they removed the blindfold from my face and brought out my Cheque Book from my car and ordered me to sign a cheque for them to go and withdraw money. Before this time they had placed a call to my wife for a ransom of N10m. I signed the cheque in the name of the 3rd Accused and asked him if he had something to identify himself at the Bank as that would be required of him. 3rd Accused brought out two identity cards, an NNPC Identity Card and another Identity Card with Army Camouflage. On 20/3/2015 they asked me to sign another cheque for them. I signed another Cheque for them. I signed the first cheque on 19/3/2015

for the sum of N60,000.00. Again, on 20/3/2015, I signed another cheque still for the sum of N60,000.00… and I signed a third cheque for them still for the sum N60,000.00… When it rained that Sunday night, they removed me from the forest and took me to a Church building where I spent the night. The following morning they took me back to the forest, where I was kept until ransom was paid in the sum of N1m. After that, 1st – 4th Accused persons left me in the forest under the care of two other men, who are not in Court with the Accused persons… On Monday when I was released and dropped me (sic) on the main road… I saw a keke driver who took me to Oko-Ita, the Local Government Headquarters of Ibio-Ibom (sic) Local Government Area. They went away with my Cheque Book, International Passport, Voter’s Registration Card, my National Identity Card and Driver’s Licence…” See pages 89 to 91 of the Records.

The above sad and painful narrative shows that the kidnappers took their time, related and interacted with their victim (PW1) in a way that the PW1 could not have missed their identity, in my opinion. And

so when they were arrested on 24/3/2015 and the Police later invited him (PW1) to come and identify the kidnappers and his property at the Police Station, he said he did. See pages 92 of the Records, where he (PW1) said:
“I was invited to identify my particulars and the Accused persons, which I did…”

Also the PW2, who registered the 2nd Accused when he came to the clinic with the 3rd Accused (pretending to be sick), was able to identify the 1st – 4th Accused persons, having also seen them and when they marched out PW1 to the car, under gun point.
Under cross examination, PW2 said:
“Yes, apart from 19/3/2015, the next time I saw the Accused persons was in this Court.” (Page 102 of the Records)

Earlier PW2 said:
“The 5th Accused person was not amongst them. Only 1st to 4th Accused persons asked us to face the wall. Two persons were holding PW1 while the other two asked us to cover our faces.” (Page 101 of the Records)

PW3 (the Investigating Police Officer) had also stated thus:
“Following the arrest of the accused persons, we contacted PW1 again, who came to our

office, saw the accused persons and confirmed that they were the people who kidnapped him… When the 1st – 4th Accused persons were arrested in Rivers State, they were taken photographs and their pictures were in the internet. There was no formal identification of the 1st – 4th Accused persons, and the identification of the 1st – 4th Accused persons was not in doubt.”

It is therefore obvious, in the light of such clear evidence of PW1 and PW2, who experienced and saw the kidnap operation on 19/3/2015 and of PW3, who invited PW1 to come and identify those who attacked/kidnapped him (and he did confirming the 1st to 4th Accused persons as the kidnappers), there was no issue at the trial, about the identity of the Appellant, as one of the kidnappers.

The trial Court had made findings to that effect, when it said:
“In Exhibit L, the Police Investigating Report, it is clearly stated that PW1 had indicated to the Police that he could identify those who kidnapped him if he saw them again. I believe the evidence of PW1, that he saw the 1st – 4th accused persons at the Police Station and recognized them when he

went to sign for and collect his belongings, recovered from 1st – 4th accused. I also believe the evidence of PW2, who confidently recognized and identified the 1st – 4th accused persons in Court, during her testimony, which was largely unshaken and materially uncontradicted and incontroverted. PW1 and PW2 were not cross examined on their evidence regarding the movements and activities of the 1st – 4th Accused persons, right from particularly, how they came into the clinic and PW2 issued patient card to the 2nd Accused who was assisted by the 3rd Accused and they were ushered into the office of PW1 and later joined by 1st and 4th Accused persons…” See page 242 of the Records of Appeal.

lasted in a split movement, leaving no room for acquaintance and/or strong interaction. See the case of Ikemson Vs State (1989) 6 SC (Pt.5) 1 at 14; Auta Vs The State (2018) LPELR – 44490 (CA) and Idowu Vs The State (2019) LPELR – 48459 CA, where it was held:
“On when an identification Parade is necessary, the Supreme Court in the case of Wisdom Vs The State (2017) 7 NWLR (Pt.1586) 446 at 468 paragraph B – F held as follows: “In Akeem Agboola Vs The State (2013) 11 NWLR (Pt.1336) 619… I had opined that an identification parade only becomes necessary where the victim did not know the accused before his acquaintance with him during the commission of the offence, where the victim saw the offender for a short time, where the victim might not have the opportunity of observing the features of the accused.” An identification would become necessary only in the following situations of visual identification:
(i) Where the victim did not know the accused person before and his first acquaintance with him during the commission of the offence.
(ii) Where the victim was confronted by the offender for a very short time

and
(iii) Where the victim due to time and circumstances, might not have had the full opportunity of observing the features of the accused.”

I had earlier said that those circumstances (above) would not apply in this case, where PW1 had ample time (and days of captivity) with the Accused persons, during the kidnap operation and custody and even signed cheques for them, thrice, seeing the identity card of 3rd Accused. The PW2, (who registered the 2nd Accused (in company of the 3rd Accused) at the Clinic, during the kidnap operation by the Accused, obviously had opportunity to interact with them as they waited for their turn to see PW1. And the ordeal they went through in the Clinic, during the operation by the Accused, must have left impressions about them (Accused) in the mind architectures of PW1 and PW2.

I think the text of the confession by the Appellant in Exhibit B, had wholly tallied with the evidence and account of the PW1 about the kidnap. (See pages 30 – 34 of the Records of Appeal). But the Appellant, in his evidence, in Court, talked of something completely unrelated to the story of the kidnap and how he was arrested.

Quite an unintelligent decoy, in my opinion, (see pages 190 to 198 of the Records), having not raised any plea of alibi in the statement. Also the Exhibit L was only an administrative document of the investigation and so, the error of date on it cannot, in my opinion, be fatal to the confessional statement – Exhibit B.

I cannot therefore see any merit in this Appeal, and so affirm the decision of the trial Court convicting the Appellant for kidnapping, on the weight of the overwhelming evidence of the prosecution and the confessional statement by the Appellant – Exhibit B. The Appeal is dismissed.

THE CROSS APPEAL
The Cross Appeal by the State was mainly on the discharge and acquittal of the Appellant in Count one – the offence of conspiracy.

The Cross Appellant’s brief, filed on 7/1/2020 (and deemed duly filed on 16/3/2020) had distilled a lone Issue for determination, namely:
“Whether the trial Court was right in discharging and acquitting the Appellant and his Co-accused persons on the charge of conspiracy, when there was evidence to prove that there was a consensus or agreement between them to kidnap PW1?”

The Cross Respondent appeared to have adopted that lone Issue, with some modification in the Cross-Respondent’s brief, filed on 16/3/2020 (and deemed duly filed on 27/4/2020). He stated the Issue as follows:
“Whether the trial Court rightly discharged and acquitted the respondent on the Count of conspiracy for lack of evidence in support of the charge.”

The Cross Appellant’s argument, per Nwoko, Esq, A.G. AKS, was that the trial Court erred, when it said:
“The available evidence before the Court does not support the particulars of the offence in Count I of the Information that the conspiracy Charge took place at No. 10 Idak Okpo Lane, Uyo on 19/3/2015. The available evidence is to the effect that the conspiracy to kidnap PW1 took place elsewhere and earlier than the dates of the actual kidnap of PW1.” (Pages 249 – 250 of the Records of Appeal).

Counsel argued that the error in the particulars of the Charge of conspiracy was not material to the case and that the error did not mislead the accused/appellant; that such error is regarded as an irregularity, which is not fatal to the

proceedings. He relied on the case of Timothy Vs FRN (2013) 4 NWLR (Pt.1344) 218 at 240; Section 164 of the Criminal Procedure Law, Cap 39, Vol. 2, Laws of Akwa Ibom State of Nigeria, 2000, which states:
“No error in stating the offence or particulars required to be stated in the Charge and no omission to state the offence or those particulars shall be regarded at any stage of the case as material unless the accused was in fact, misled by such error or omission.”

Counsel said all that the prosecution needs to prove under the Count of conspiracy is the agreement of two or more persons to do or cause to be done an illegal act or a legal act by an illegal means. And this can be proved either by direct or indirect evidence or inference from illegal act of the accused persons. He relied on the case of Njovens Vs State (1998) 1 ACLR 225 at 264. He added that offence of conspiracy requires that there should be the meeting of the minds of the accused persons, with a common intention and purpose to commit a particular offence; that Exhibit B by the Accused person (confessional statement), central the prosecution’s case, proved the charge of

conspiracy; he said that there is no evidence stronger than a person’s own admission or confession, in proof of crime with which the suspect is Charged. He relied on Solola Vs State (2005) ALL FLWR (Pt.269) 176; Akpa Vs State (2008) 7 MJSC 83 at 99. Counsel further relied on Alufohai Vs The State (2015) Vol. 239 LRCN 4 – 5; Iboji Vs The State (2016) Vol. 255 LRCN 176.

Responding, Counsel for Cross Respondent, Abasiodiong Ekpenyong Esq, agreed with the Cross Appellant’s Counsel on the definition and ingredients of offence of conspiracy; that the gist of the offence of conspiracy is the meeting of the mind of the conspirators, as per the case of Njovens & Ors Vs The State (1973) NSCC 257; that it is a matter of inference from the criminal acts of the parties, concern, which is done in pursuance of an apparent criminal purpose; that it is the duty of the Court in every case of criminal conspiracy to ascertain as best as it could, the evidence of the conspiracy of any those charged with the offence – Daboh & Anor Vs The State (1977) 5 SC 197; Erim Vs The State (1994) 5 NWLR (Pt.346) 522.

Counsel however, referred us to

the particulars of the offence in the Count I, to say that the prosecution did not prove every material averment in the Charge; he said that the Court is to decide according to the fact alleged and proved, as expressed in the Latin Maxim: “judicis est judicare secundum allegata et probate.” He relied onFRN Vs Barminas (2017) 15 NWLR (Pt.1588) 177. He also relied on Bello Vs C.O.P. (2018) 2 NWLR (Pt.1603) 267 and Section 258 of the Evidence Act 2011, to the effect that in criminal trial, offence is treated as facts in Issue, which like other facts in Issue, must be proved beyond reasonable doubt in order to secure conviction.

Counsel further tried to suggest that the discharge of the 5th Accused person in to the entire Charge (particularly Count one) should have extended the benefit of the Appellant too; that it is the law that where two or more persons charged for commission of a common offence, and a common evidence is led to prove the commission of the offence and the evidence against all the accused persons is the same or similar, the discharge of one must, as a matter of law, lead to the discharge of the others. He relied on Ebri vs. State

(2004) 1 NWLR (Pt. 885) 589; Okoro vs. State (2012) LPELR – 7846 SC.

RESOLUTION OF THE CROSS APPEAL
In think that last submission by the Cross Respondent is relevant to the extent of a joint criminal trial, with a common evidence, which cannot be believed. But it should be taken with caution, as it should be noted that, in criminal trial involving two or more accused persons, the conviction or acquittal of one does not, automatically, translate to the conviction or acquittal of all the others, charged therein, as each accused has a separate case, and the Court must rely on the evidence generated for or against each of the accused persons, separately, except where the charge is inter-woven and any doubt established, would accrue to all the accused persons in the Charge. SeeMorufu Bolanle vs. The State (2004) LPELR – 7403 (CA); Akpan & Ors vs. The State (2002) LPELR – 373 (SC); Ilodigwe vs. State (2012) LPELR – 9342 (SC); Hassa vs. The State (2012) LPELR – 14358 (CA) and the case of Idiok vs. The State (2008) 6 MJSC 36 at 49, where the Supreme Court said that:
“It is not the law that once an accused person

is discharged and acquitted, the co-accused must as a matter of course of routine be discharged and acquitted, like the right following the day and vice versa. It is not so. There is no such automatic position. It depends entirely on the facts of the case before the Court. Court would only be right in discharging and acquitting the co-accused if the evidence in exculpation of the two accused, persons is the same and nothing but the same and not merely some nexus or proximity.”

On the issue of failure to prove the particulars of the conspiracy; that the accused conspired on the 19/3/2015 at No. 10 Idak Okpo Lane, Uyo, to commit the offence (whereas the evidence showed that the conspiracy took place earlier than that date – 19/3/2015), I think the trial Court was not unduly technical and rigid in its interpretation of the requirement of proof of particulars of the offence of conspiracy, in the circumstances. This is because the charge had, in fact, stated that all the Accused Persons, including the 5th Accused “on or about the 19th day of March, 2015 at No. 10 Idak Okpo Lane, Uyo, in the Uyo Judicial Division, did conspire amongst

Yourselves to commit a felony, to kidnapping.”
There was no evidence from the PW1, PW2 and PW3 of any such agreement by all the 5 Accused Persons, and of their meeting on the 19/3/2015, at No. 10 Idak Okpo Lane, Uyo to commit the offence. Though the confessional statements of 1st to 4th Accused suggest some agreement by them (1st to 4th Accused) to kidnap the PW1, the same (agreement) was not reached at No. 10 Idak Okpo Lane, and was not planned on 19/3/2015 (where and when the kidnap took place), and certainly, the 5th Accused person, Victoria Godspower Akpan, was not part of that agreement and was not involved in the kidnap, as the trial Court found out.
The Cross Appellant had argued, relying on the provisions of the Criminal Procedure Law of Akwa Ibom State (Section 164), to say that “no error in stating the offence or particulars of offence, required to be stated in the charge, and no omission to state the offence or particulars thereof shall be regarded as material, at any stage of the case, unless the accused was misled by such error or omission.”
With due respect to the learned Attorney General, I think that provision

of law would not apply in this case as the so-called admitted error, this time, was fatal to the case of the prosecution in respect of the charge of conspiracy, especially as the 5th Accused was not part of the alleged agreement to kidnap the PW1, and was not at No. 10 Idak Okpo Lane, Uyo, on the said 19/3/2015, when the 1st to 4th Accused persons carried out the heinous act of kidnapping the PW1. And, because the 5th Accused person was not at the No. 10 Idak Okpo Lane, Uyo, on 19/3/2015 and did not know of or take part in the kidnap of the PW1 on that date, that Count I, collapsed completely, as it was not and could not have been proved, as alleged against the accused persons.
In the recent case of The State vs. Daniel Emeka Iheanachor (2019) LPELR – 49301 (CA), the charge of conspiracy had alleged that a father and son (accused persons) conspired with other persons to assault, and assaulted PW1. Evidence showed that the father was not at the scene of the assault and did not take part in the alleged assault of the PW1. It was the Police investigating officer (IPO) who stated that the father was not at the scene and did not take part in the

assault, and yet he (IPO) framed the charge to rope in the old man as part of the conspiracy to commit the offence and/or committed it. That inclusion of the old man in the charge destroyed the entire case of the prosecution. It was held in that case, as follows about proof of conspiracy:
“The law is trite, that in a charge of conspiracy to commit felony, the basic ingredients to be established is agreement by the conspirators, to pursue the unlawful act. In the case of Adeyemi Vs State (2012) ALL FWLR (Pt.606) 492 at 511, it was stated that, to prove conspiracy:
(1) There must be two or more persons in concert;
(2) They must form a common intention;
(3) The common intention must be towards prosecuting an unlawful purpose;
(4) An offence must be committed in the process;
(5) The offence must be of such a nature that its commission was a probable consequence of the conspiracy.”
Of course, often direct proof of working in concert to achieve an ignoble purpose is difficult to establish, and so the Court may have resort to inferences. See the case of Dr. Segun Oduneye Vs The State (2001) FLWR (Pt.38) 1203 at 1205,

where the Supreme Court held:
“Since the gist of the offence of conspiracy is embedded in agreement or plot between the parties, it is rarely capable of direct proof; it is invariably an offence that is inferentially deduced from the acts of the parties thereto, which are focused towards the realization of their common intention or mutual criminal purpose. It is predicated on circumstantial evidence, which is evidence, not of the fact in issue, but of other facts which facts in issue can be inferred. Evidence in this connection must be of such quality that irresistibly compels the Court to make an inference as the guilt of the accused…”
It was further held as follows, following the findings of the Court:
The above finding is quite instructive as it appears to confirm that the charge and counts founded on the complaint of the PW1 to the Police, was actually founded on falsehood, with respect to the claim that the Respondents’ father… now late, was part of the conspiracy to kill the PW1, and actually took part in the attempt to kill the PW1 by being among those beating him and causing him grievous harm on that

date, 10/4/2006, when, in fact, the old man was not on the trip to PW1’s house and was not at the scene of the alleged offence. As earlier stated in this judgment, that wrong inclusion of the name of the father of the Respondent in the charge and his arraignment (though later withdrawn, when he died), was enough to spell doom to the whole charge, as it was obvious the whole prosecution was founded on mischief and insincere fight against vice.”
In this case at hand, the 5th Accused was not charged in Count II and so the same was proved. I cannot therefore see any merit in the cross Appeal and the same is hereby dismissed and the decision on the trial Court affirmed in respect of the Appellant/Cross Respondent.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother Ita G. Mbaba, JCA. My learned brother has painstakingly dealt with the issues in the appeal and the cross-appeal.
I agree with the reasoning and conclusion. I also dismiss the appeal and the cross-appeal.

HAMMA AKAWU BARKA, J.C.A.: The judgment of my Learned brother Ita G. Mbaba, JCA was made

available to me before now in draft.

Having also studied the grounds of appeal, the record of proceeding and the submissions of learned counsel, I am of the humble but firm view that the issues raised for resolution were brilliantly resolved to the inevitable conclusion that there is no merit in both the appeal and the cross-appeal, and thereby join my lord in dismissing the same.
The decision of Okon Okon J, in charge No. HU/62C/2015 delivered on the 30th Of July, 2018 is hereby affirmed.

Appearances:

ABASIODIONG EKPENYONG ESQ For Appellant(s)

UWEMEDIMOH NWOKO ESQ, LEARNED A.G. AKWA IBOM STATE (who settled the brief) For Respondent(s)