OKERE v. STATE (2020)

OKERE v. STATE

(2020)LCN/15302(CA)

In The Court Of Appeal

(AWKA JUDICIAL DIVISION)

On Wednesday, June 10, 2020

CA/AW/118C/2018

Before Our Lordships:

Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal

Rita Nosakhare Pemu Justice of the Court of Appeal

Bitrus Gyarazama Sanga Justice of the Court of Appeal

Between

CHINONSO OKERE APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

WHETHER OR NOT CIRCUMSTANTIAL EVIDENCE IS USED TO PROVE THE OFFENCE OF CONSPIRACY

ELEMENTS TO PROVE THE OFFENCE OF KIDNAPPING

WHETHER OR NOT A RETRACTED VOLUNTARY CONFESSION OF AN ACCUSED PERSON IS ADMISSIBLE

It is trite that a voluntary confession which is admissible against an accused person does not become inadmissible because the accused person who made it retracted or reneged. See IKPASA V. STATE (1981) 9 S.C. 7. It is also trite that an accused person can be convicted on his confessional statement alone particularly where the confession is consistent with other ascertained facts which had been proved. SeeNTABA V. STATE (1977) 4 S. C. Page 1. PER NWOSU-IHEME, J.C.A.

ELEMENTS TO ESTABLISH THE OFFENCE OF UNLAWFUL IMPRISONMENT

The other offences include unlawful imprisonment, unlawful use of personal violence and unlawful demand for the payment of ransom in counts 3, 4, and 5.

For the offence of unlawful imprisonment the prosecution must lead evidence to show.
a. That the detention must be unlawful.
b. The detention must be against the victim’s will.
c. The victim must have been prevented from exercising his right of free movement.

For the offence of unlawful use of personal violence:
1. The assault or violence must be unlawful and for unlawful demand for the payment of ransom, the –
(a) Demand must be for an illegal purpose.
(b) The demand must be under threat as an inducement and
(c) It must be a consideration to undo an illegal act. PER NWOSU-IHEME, J.C.A.

CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment): The Appellant and other co-convicts in this Criminal appeal were arraigned, before the High Court of Justice Onitsha Division of Anambra State High Court on a five count charge in charge No. 0/40C/2016 with the following offences:
1. Conspiracy to commit felony; kidnapping contrary to Section 595 (a) of the Criminal Code Cap. 36 Vol. 2 Revised Laws of Anambra State of Nigeria 1991 as amended.
2. Kidnapping Contrary to Section 315(2)(a) of the Criminal Code (Amendment) Laws of Anambra State of Nigeria 2009.
3. Unlawful imprisonment Contrary to Section 315(1)(b) of the Criminal Code (Amendment). Laws of Anambra State of Nigeria 2009.
4. Unlawful use of personal violence contrary to Section 315(2)(b) of the Criminal Code (Amendment). Laws of Anambra State of Nigeria 2009.
5. Unlawful demand for payment of ransom contrary to Section 315 (2) (c) of the Criminal Code (Amendment) Laws of Anambra State 2009.

SUMMARY OF FACTS:
The case as presented by the Respondents (prosecution) at the trial Court was that the victim one Nkiru Anene who testified as Pw2 on the 6th of March, 2016 closed from work at the sports club Onitsha at about 9.00p.m, where she worked as a sales lady with one Mrs. Rose Okeke (Pw3).

Pw2 was said to have boarded a Motorcycle in front of Onitsha sports club to take her home to her residence in Onitsha. The motorcycle conveying Pw2 on getting to Oguta Road Onitsha between DMGS round about and Ekene Junction, stopped another Motorcycle and a car emerged, three men came out of the said car brandishing their shot guns which they pointed at Pw2 and ordered her to enter into their vehicle and remain calm. They tied the eyes of Pw2 and took her to an unknown destination. Later Pw2 was taken to an uncompleted building. At the uncompleted building, her abductors collected her Samsung Galaxy X5 and Blue Gate Tap I handsets, with sim card Registration numbers 07036254622 and 0818253360 respectively.

The abductors of Pw2 after collecting her handsets, removed her sim card which they inserted in their own phone and with it they started calling the relations of Pw2 for ransom. Pw2’s relations eventually paid the sum of N50,000:00 (Fifty Thousand Naira) to her abductors as ransom. The said amount was paid through the Pw1 before Pw2 was released. The abductors used personal violence on Pw2, beat her and stripped her naked.

Pw2 (the victim), Pw1 & Pw3 reported the incident to the central Police Station Onitsha before the matter was transferred to SARS Police Station AWKUZU. Pw5 who investigated the matter arrested the Appellant and his co-convicts and the Samsung Galaxy X5 handset stolen from Pw2 was traced to Pw4 who was said to have bought the phone from the Appellant and his co-convicts.

The case went into trial at the end of which the learned trial Judge A. O. Okuma J, on the 5th of March, 2018 in a considered Judgment convicted the Appellant and his co-accused in counts 1, 3, 4 and 5 respectively.
In count one the Appellant was sentenced to seven years imprisonment.
In count three(3) to life imprisonment and in counts 4 and 5, the Appellant and his co-accused were sentenced to death.
This appeal is predicated on the said Judgment.

Learned Counsel for the Appellant, Tochukwu Onyiuke Esq distilled a sole issue for determination thus:
“Whether the lower Court was right when it found the Appellant guilty in counts 1, 3, 4 and 5, sentencing the Appellant to 7 (seven) years imprisonment in respect of count 1, life imprisonment in respect of count 3 and death by hanging in respect of counts 4 and 5”.

Learned Counsel for the Respondent O.N.E. Ezeanyim Esq also distilled a single issue for determination as follows:
“Whether from the circumstances of this case, the prosecution has proved the guilt of the Appellant with respect to the five count charges contained in the information and proof of evidence beyond reasonable doubt as required by law”.

Learned Counsel for the Appellant submitted, in summary, that the Respondent as prosecution at the trial Court failed to prove the ingredients of the offences as charged.

He contended that Exhibit K constitute documentary hearsay as there was nothing on the face of the said document to show that it was recorded by Pw5 Sergeant Bassey Oza. Counsel posited that Exhibit K and K1 do not meet the requirements of a valid confessional statement as there was no evidence to show that the said confessional statement was read to the Appellant. He cited OKANLAWON V. STATE (2015) 17 NWLR (PT. 1489) 445 at 480, AKPAN V. STATE (2001) 15 NWLR (PT.737) at 745.

Counsel for the Appellant also filed a Reply brief on the 16/10/19 which was deemed properly filed on 17/3/20.

Learned Counsel for the Respondent on the other hand contended that the prosecution through the evidence of Pw1, Pw2 and Pw3 satisfactorily proved the offences charged against the Appellant beyond reasonable doubt.

Counsel submitted that the evidence of Pw1 – Pw3 proved that Nkiru Anene was kidnapped and the kidnappers demanded for ransom which was paid. That the Police arrested the kidnappers, the Appellant inclusive and also recovered the Samsung phone they stole from the Pw2 from Pw4 who bought the phone from the kidnappers. He argued that Exhibits K and K1 were tendered at the trial Court without any objection and wondered why the Appellant should raise the issue of admissibility at this later stage.

The issues raised by both counsel are similar though couched differently and can conveniently be summarized into one straightforward issue thus:
“Whether on the facts and circumstances of this case, the learned trial Judge was right in rejecting the defence put forward by the Appellant and holding that the prosecution proved counts 1, 3, 4 and 5 beyond reasonable doubt”.

Let me start with count one, conspiracy to commit felony to wit: kidnapping under Section 495(a) of the Criminal Code.

It is trite that the offence of conspiracy is difficult to prove. This is so because it is often contrived in secrecy. Circumstantial evidence is therefore often used to point to the fact that the conspirators had agreed on the plan to commit the crime. There must therefore be an act done in the open to justify the inference of conspiracy. The offence of conspiracy is said to have taken place when people have acted by agreement or in concert.
It is on record (evidence of Pw2 the victim) that her abductors came out from the same vehicle, abducted her from the motorcycle where she was and took her to an unknown destination where they dispossessed her of her Samsung phone.
Could the abductors of Pw2 have come in the same vehicle to abduct Pw2 by coincidence, how could all of them be in the vehicle at the same time for the same purpose and when Pw2 was kidnapped, the vehicle headed to the same destination with Pw2 and her abductors all in the same vehicle. The defence put up by the Appellant at the trial Court that he met the other Co-accused persons for the first time at the Police station was an afterthought and does not hold water at all.
In SALAMI V. THE STATE (2015) 2 NWLR (PT. 1444) PG. 595 at 610 Kumai Aka’ahs JSC stated thus:
“Once the Court arrived at a conclusion that the Prosecution has established some community effort by the accused persons aimed at committing the crime, it will be safe to convict them of conspiracy”.
Counts 3, 4, and 5 are inter woven and will be taken together.

To establish the offence of kidnapping, the Respondent as prosecution must prove that the victim Nkiru Anene was unlawfully removed or exported from his known place of abode to an unknown place without her consent. The person or persons confining, removing or exporting Nkiru must be proved to have any of the following intentions or purpose:
i. The kidnapping must have amounted to an imprisonment.
ii. The kidnapping must have been without the consent of the victim.
iii. The imprisonment must have prevented the victim from applying to a Court for his release.
iv. The victim must have been prevented from disclosing to any other person the place where he is imprisoned, or the victim must have been prevented from having access to people and from such people discovering where he is imprisoned.
v. The victim must have been taken out from his known or familiar jurisdiction.
It is not in doubt that Nkiru Anene was kidnapped on the 6th of March 2016. The evidence of Pw1 and Pw2 point to the irresistible fact that the Kidnappers demanded for N50,000:00 (Fifty thousand Naira) as ransom and that the said sum was paid to the kidnappers by Pw1 before Pw2 was released.
The requirement of the law that to establish the offence of kidnapping, the prosecution at the trial Court must prove that the victim was unlawfully removed or exported from any place where he was to another place with the intention or for the purpose of ransom or reward had been met.

What is important at this juncture is whether the Appellant was one of those who kidnapped Nkiru Anene on the 6th of March, 2016.

In proof of its case at the trial Court, the Respondent adduced evidence as follows:
1. That Nkiru Anene was kidnapped on the 6th of March, 2016.
2. That the Kidnappers demanded the sum of fifty thousand Naira.
3. That the ransom was dropped by Pw1.

That the Police arrested the abductors of Nkiru Anene and also recovered her Samsung phone from Pw4 whom the abductors sold the phone to.
That the Appellant made statements Exhibit K and K1, confessional statements which the trial Court admitted in evidence without objection from the defence.

Section 28 of the Evidence Act, 2011 states:
“28. A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime.”

The testimony of Pw1 and Pw2 corroborated the admission of the Appellant in Exhibits K & K1.
Pw2 (the victim) gave evidence as to how she was kidnapped at Gun point by her abductors, taken to an unknown destination where her phones were taken from her, how she was thoroughly beaten and eventually released after the payment of ransom.

Appellant tried as much as he could to deny Exhibit K. He said he was given a blank sheet turned upside down and he signed. In his testimony in Court, the Appellant told the trial Court that he was a student of the Federal Polytechnic Nekede where he was studying for his HND. This same information is contained in Exhibit K. He also told the trial Court that he is from Umuona Ngokpala Local Govt. This same information is contained in Exhibit K. Exhibit K when read, flow freely and gave detailed account of the participation of the Appellant in the commission of the offence as charged. There is no doubt that the Appellant voluntarily furnished the police with the information as to where he hails from as well as being a student of Nekede Polytechnic. That the Appellant is a principal member of the gang is also seen from the statements of his cohorts who described him as “California”.

Appellant tried as much as he could to deny Exhibit K insisting that he was only given a blank paper turned upside down to sign, but the same Exhibit K is in steady flow with the testimony of the Appellant at the trial Court.

It is also trite that an accused person can be convicted on his confessional statement alone particularly where the confession is consistent with other ascertained facts which had been proved. SeeNTABA V. STATE (1977) 4 S. C. Page 1.

The other offences include unlawful imprisonment, unlawful use of personal violence and unlawful demand for the payment of ransom in counts 3, 4, and 5.

A look at counts 3, 4 and 5 as contained in the charge against the Appellant show that they are all offences relating to kidnapping as contained in Section 315 of the Criminal Code Laws of Anambra State 2009 (as amended)
In the instant case, on the level of evidence adduced by both sides, there was a direct and straight issue of credibility and the learned trial Judge was entitled to weigh both sides and reach a conclusion on which side he believed. He did so extensively in relation to Exhibit K the confessional statement of the Appellant in his Judgment at pages 266 – 267 of the Record of Appeal where he found inter alia as follows:
“The 2nd defendant on the 26/9/2017 testified as Dw2… with respect to his statement tendered as Exhibit K he testified thus:
‘I did not make confessional statement to the Police… They gave me blank sheet turned upside to sign. I only signed on the blank sheet.’
“A look at Exhibit K shows that it was not signed upside because if a blank sheet is signed upside the signature will obviously be upside. This shows that the 2nd defendant is merely looking for a reason to deny his statement but has no sufficient intelligence to make a credible evidence to that effect that will raise doubt in the mind of the Court. He did not raise objection to the document when it was sought to be tendered. He claimed that he was only asked his name and whatever is written on Exhibit K he does not know.
As found he testified before this Court that he is in Federal Polytechnic Nekede doing his HND. This piece of evidence is in his statement in Exhibit K showing that he was the one that disclosed the information in the statement to the Police. He also told this Court that he is from Umuona Ngokpala Local Government and the same is in Exhibit K yet he said they only asked him his name. Exhibit K when read, flow freely and gave detailed account of the participation of the 2nd defendant in the commission of the offence as charged that I have no iota of doubt that he is a principal member of the gang as seen from the statement of his cohorts who described him as California. The 2nd defendant no doubt is coached in his evidence. That can be seen in his evidence that the Police conducted no identification parade and police did not conduct voice verification showing that the 2nd defendant was schooled to be making submissions while giving evidence. I find no doubt created by the 2nd defendant in the evidence made out against him.”
(note that the 2nd defendant Chinonso Okere is the Appellant herein)

The above is a clear and succinct findings of fact which this Court has no reason or justification to distort or reverse.

In the premise, the sole issue is resolved against the Appellant in favour of the Respondent. This appeal is unmeritorious and is hereby dismissed in its entirety. The judgment of A. O. Okuma J, in charge No. 0/40C/2016 delivered on the 5th day of March, 2018, is hereby affirmed.

RITA NOSAKHARE PEMU, J.C.A.: I had read before now, the lead judgment just delivered by my brother CHIOMA NWOSU-IHEME, (Ph. D) JCA.
I agree with her reasoning and conclusion.
I also affirm the conviction and sentence of the Appellant.

BITRUS GYARAZAMA SANGA, J.C.A.: I have the privilege of reading in draft the judgment just delivered by my learned brother Nwosu-lheme J.C.A. I agree and adopt the finding and decision in the lead judgment that this appeal lack merit and is hereby dismissed.
The judgment by the lower Court delivered on 5th March, 2018 in Charge No. 0/40C/2016 is also affirmed by me.

Appearances:

Tochukwu Onyiuke, Esq. with him, Chika Nwigwe For Appellant(s)

N. E. Ezeanyim Asst. Director Anambra State Ministry of Justice, with him, R. E. Okonkwo Principal Senior Counsel For Respondent(s)