ONAGHISE OLOYE v. A.G FEDERATION
(2019)LCN/12699(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 13th day of February, 2019
CA/B/292C/2016
RATIO
CRIMINAL LAW: PROCUREMENT FOR PROSTITUTION
“The victim over 18 years could have consented to the trip, the parents of the victim over 18 years could have consented to the trip. What is important for the Prosecution to prove in those counts was that the Accused procured the adult for the purposes of prostitution. If the offence were at attempt stage, the Prosecution would need to prove the procurement of the victim and the mens rea of the Accused whose intention is to give the victim over to prostitution.” PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
CRIMINAL LAW: THE IMPORTANCE OF CONSENT ON PROCUREMENT
“I am of the humble view that the Prosecution proved beyond reasonable doubt that the parents of the victim did not consent to her being taken to Italy. I am obliged to agree with the findings of fact by the learned trial judge on this point which is based on the credibility of witnesses. See Abubakar v. Anobih & Anor (2013) LPELR-20856 (CA); Fashanu v. Adekoya (1974) 6 SC 83; Sagay v. Sajere (2000) 6 NWLR Pt. 661 pg. 360; Nnorodim v. Ezeani (2001) 5NWLR Pt. 706 Pg. 203.”PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
INTERPRETATION: MEANING OF ‘CONSENT’
“The Dictionary defines ‘consent’ as ‘to permit, approve, or agree, comply or yield’. Even though the onus of proof of the lack of consent was fixed and rested at all times on the Prosecution, as I have said earlier, the Prosecution’s witnesses were firm and unshaken in their testimony that they did not agree, approve or permit their 16 year old daughter to be taken abroad to Italy for whatever purpose. The definition of consent anticipates an active rather than a passive role in agreeing to do a thing.” PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
Between
ONAGHISE OLOYE Appellant(s)
AND
A.G FEDERATION Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the Edo State High Court delivered by Honourable Justice A. Edodo-Eruaga on 24/3/2016 wherein the Appellant was convicted and sentenced to 14 years imprisonment under the Trafficking in Persons (Prohibition) Law and Enforcement Administration Act, 2003 (NAPTIP ACT) as amended.
The facts that led to this appeal are as follows:-
The Appellant was brought before the High Court of Edo State for trial in Charge No. B/202C/11 on a four count charge.
The statement of offence is set out below:-
COUNT 1
STATEMENT OF OFFENCE
Procurement which promote prostitution contrary to Section 15 (a) of the Trafficking in Persons (Prohibition) Law Enforcement and Administration Act 2003 as amended.
PARTICULARS OF OFFENCE
That you, Onaghise Oloye (M) 26 yrs of No 5 Oloye Street, off Mill Road Benin City Edo State within the Benin Judicial Division sometimes in August 2006 procured one Eghe Omoregbe ?F? 16 yrs of No 5 Igbinovia Street, Egor Quarters, Benin City for prostitution in Italy.
COUNT 2
STATEMENT OF OFFENCE
Organizing foreign travel which promotes prostitution contrary to Section 16 of the Trafficking in Persons (Prohibition) Law Enforcement and Administration Act 2003 as amended.
PARTICULARS OF OFFENCE
That you, Onaghise Oloye (M) 26 yrs of No 5 Oloye Street, off Mill Road Benin City Edo State within the Benin Judicial Division sometimes in August 2006 did organize foreign travel for one Eghe Omoregbe ?F? 16 years of No 5 Igbinovia Street, Egor Quarters, Benin City for prostitution in Italy.
COUNT 3
STATEMENT OF OFFENCE
Deceitful inducement to go from any place contrary to Section 19 (b) of the Trafficking in Persons (Prohibition) Law Enforcement and Administration Act 2003 as amended.
PARTICULARS OF OFFENCE
That you, Onaghise Oloye (M) 26 yrs of No 5 Oloye Street, off Mill Road Benin City Edo State within the Benin Judicial Division sometimes in August 2006 deceitfully induced one Eghe Omoregbe ‘F’ 16 years of No 5 Igbinovia Street, Egor Quarters, Benin City to go from Benin City to Italy, Europe.
COUNT 4
STATEMENT OF OFFENCE
Taking any person under the age of 18 years out of the custody of lawful guardianship without the consent of the guardian contrary to Section 19 (a) of the Trafficking in Persons (Prohibition) Law Enforcement and Administration Act 2003 as amended.
PARTICULARS OF OFFENCE
That you, Onaghise Oloye (M) 26 yrs of No 5 Oloye Street, off Mill Road Benin City Edo State within the Benin Judicial Division sometimes in August 2006 took one Eghe Omoregbe ‘F’ 16 years of No 5 Igbinovia Street, Egor Quarters, Benin City out of the custody of her parents without their consent.
In proof of its case against the Appellant, the prosecution now the Respondent called four witnesses, tendered 2 documents and closed its case while the Appellant opened his case after his No case submission was overruled by the trial Court. The Appellant did not call any witness but tendered one document in defence.
In a considered judgment, the trial Court discharged and acquitted the Appellant on Counts 1, 2, and 3 but convicted him on Count 4 and sentenced him to 14 years imprisonment without an option of fine.
Dissatisfied, the Appellant filed a Notice of Appeal dated 29/4/16. Record of Appeal was transmitted on 21/7/16. The Appellant filed his brief of argument on 25/8/16. The Respondent’s brief of argument was filed on 30/4/18 and deemed filed on 21/11/18.
In the brief settled by Mr Ejemi Etinbowei Esq., Appellant’s counsel identified two issues for determination of this appeal as follows:-
1. Whether or not the Court below can make pronouncements that suggests the guilt of the accused at the stage of a ruling on a No Case Submission especially when such pronouncement is borne out of a fettered discretion.
2. Whether or not the Court below made a dispassionate consideration of the points raised by the defence and prosecution before giving its decision and reasons for decision in line with Section 245 of the Criminal Procedure Law Cap 49 Vol. II Laws of defunct Bendel State now applicable in Edo State before convicting the accused in count 4.
Mr. Osayaba Giwa-Osagie who settled the Respondent’s brief also raised two issues for the determination of this appeal to wit:-
1. Whether or not the No Case Submission of the Appellant was wrongly overruled by the trial Court.
2. Whether or not the evidence adduced by the prosecution is sufficient to sustain a conviction of the Appellant.
At the hearing of this appeal, the Court raised the issue suo motu the fact that issue one as distilled by the Appellant was from a ruling delivered on a no case submission of 16/7/15 while the notice of appeal talks about the judgment of the Court delivered on 24/3/16. Learned Appellant?s counsel conceded that without leave first sought and obtained, the ground and issue were incompetent and withdraw same. The same was accordingly struck out by this Court. I will however recouch the second issue as the sole issue as follows:-
Whether or not the evidence adduced by the prosecution is sufficient to sustain a conviction of the Appellant in Count 4.
SOLE ISSUE
Whether or not the evidence adduced by the prosecution is sufficient to sustain a conviction of the Appellant.
Learned Appellant’s counsel argued that the provision of Section 245 of the Criminal Procedure Law Cap 49 Vol. II Laws of Defunct Bendel State now applicable in Edo State is to the effect that a judgment shall contain the point (s) for determination, the decision thereon and the reasons for the decision.
Counsel opined that evidence abounds that PW3 participated in her daughter’s travel to Italy. This piece of evidence was never contradicted by the prosecution, therefore it is deemed proved. This piece of evidence is contrary to what the lower Court held in its decision on Count 4 that the accused was trying to give the impression that the PW3 had knowledge of the transaction that took Eghe to Italy.
Counsel emphasized that PW3 gave the Appellant most of the information about the arrangements and journey proper of the victim which he used even though he later promised marriage to her.
Counsel submitted that following the evidence which actually abounded from the records as referenced, which were never contradicted, it is obvious that there was no proper review of the evidence of the defence of the Appellant by the lower Court before giving its decision and reason. Counsel cited Willie John v The State (1967) NMLR 101.
Learned counsel insisted that grave consequences abounds when there is failure to consider the evidence of the Appellant before making a decision and reasons for decision. Counsel cited Aigbe v. The State (1976) 9-10 S.C 77 at 89-90.
Learned counsel argued that there was only a reference to the issue of contradiction which was never raised by the defence nor the prosecution in their respective closing addresses. The Court raised this issue suo motu and convicted the Appellant. There was only a brief reference to the issue of unlawful taking away from custody without proper evaluation and consideration of the defence raised by the Appellant who had consistently denied taking Eghe out of Nigeria to Italy. Counsel opined that the decision on Count four should be set aside. Counsel cited Akibu v. Opaleye (1974) 11 SC 189 at 203
Learned counsel opined that there is no justifiable reason from the evidence at the trial to warrant the conviction of the Appellant by the lower Court with the trial Court’s use of the words ‘I believe’ and ‘I do not believe’. The denial by the Appellant was not put into consideration and no circumstantial evidence pointed to the Appellant with mathematical accuracy. Onafowokan v. The State (1987) 7 SCNJ 233 at 245, 246 was cited by counsel.
Counsel emphasized that it is not enough for the lower Court to make heavy weather over the issue of consent with the hearsay evidence of Pw1 and Pw3 when it was their daughter who told them all the stories with which the Appellant had been charged. Eghe ought to have been called to give the Court direct evidence of how the Appellant took her out of guardianship, then there can be a consideration of the ?without consent? matter since the consent issue is hinged on direct evidence or circumstantial evidence in the absence of Eghe which must point to the Appellant irresistibly and with mathematical accuracy.
Counsel further argued that the lower Court went on to convict the Appellant even after raising the issue of defective investigation where the IPO claimed not to have made independent investigation but relied on what the victim, Eghe and the Appellant told him, and urged this Court to set aside the conviction of the Appellant on this ground.
Counsel submitted that evaluation of evidence is primarily the exclusive reserve of the trial Courts. Counsel cited Ezeuko v. The State (2016) 253 LRCN 1 Pg. 18 Learned Respondent’s counsel in reply contended that Section 19 (a) of the NAPTIP ACT provides that the prosecution must prove that the victim is below 18 years and the accused took the victim out of the custody of her parents without their consent.
Counsel emphasized that in proof of the first requirement, PW1 and PW3 gave direct evidence in Court that their daughter was 16 years old when the Appellant took her away from their custody without their consent. The age of a person can be established either by the production of a birth certificate signed by a medical officer in the service of the government or the age presumed or declared by the parents of the person. Counsel cited Okoro v. State (1998) 4 NWLR Pt. 544 Pg. 115 at 125.
Counsel insisted that the evidence of PW3 cooking for the Appellant’s sister is not sufficient to amount to consent by the mother for her daughter to be taken away especially in the circumstances whereby such service was rendered after the victim was taken abroad and not before. Counsel stated that PW3 was rendering her service as a professional caterer. PW1 confirmed he never knew the Appellant until he started harassing him and his wife over money spent to take the victim abroad.
Counsel further contended that the trial Court not only gave reasons for its judgment but also analyzed the evidence before reaching the conclusion as against the Appellant’s opinion that the trial Court failed to consider the denial of the Appellant and that there was no justifiable reason from the evidence that warrants the conviction of the Appellant.
Counsel emphasized that the Court is entitled to draw inferences and make findings and the Appellate Court can only interfere if it is found to be perverse and cannot be supported having regard to the evidence on record. Counsel cited Agunbiade v. State (1999) 4 NWLR Pt. 5990 Pg. 391.
Learned counsel opined that the assessment of the credibility of a witness in a case is the primary function of the trial Court which alone has the opportunity of seeing and hearing the witnesses as well as observing their demeanor and therefore an appellate Court has no basis for interference with the findings based thereon. Counsel cited Momoh v. Umoru (2011) 15 NWLR Pt. 1270 Pg. 244; Okoya v. Santilli (1994) 4 NWLR Pt. 338 Pg. 256; Amayo v. Erinmwingbovo (2006) 11 NWLR Pt. 992 Pg. 669; Sunday Onuoha v. State (1989) 2 NWLR Pt. 101 Pg. 23; Asanya v State (1991) 3 NWLR Pt. 180 Pg. 422.
Counsel submitted that learned Appellant’s contention are misconceived when he argued that if the lower Court discharged the Appellant on Counts one to three on account that the evidence of the prosecution witness were based on hearsay why not in Count 4.
Counsel argued that Counts 1-3 relate to procurement of a person for prostitution, organizing foreign travel that promotes prostitution and deceitful inducement to go from any place. A perusal of the NAPTIP ACT goes to show that the evidence of the victim on those counts would be vital to the Prosecution?s case. This however does not extend to Count 4 which relates to parental consent because evidence of the victim?s parent becomes vital in that regard.
Counsel insisted that the Prosecution is not bound to call every evidence to prove its case. It is enough if sufficient evidence is called to discharge the onus of proof beyond reasonable doubt. Counsel cited Ochiba v. State (2011) 17 NWLR 687; Oduneye v. State (2001) 2 NWLR Pt. 697 Pg. 311; Mohammed v. State (1991) 5 NWLR Pt. 192 Pg. 438; Obue v. State (1976) 2 SC 141; Sadau v. State (2010) 12 SC Pt. 1 Pg. 73; Ekpenyong v. State (1991) 6 NWLR Pt. 200 Pg. 683 at 70.
Learned counsel further argued that PW4, NAPTIP investigator who investigated the matter gave succinct testimony of how the petition on behalf of PW1 and Pw3 was minuted to him and the steps he took. The investigation carried out by the IPO was in no way defective and cannot be fatal to the case of the Prosecution.
Counsel emphasized that the trial Court did not manufacture evidence for the prosecution. It was indeed the evidence before the Court that was properly evaluated and analyzed before judgment was given. The burden of establishing the guilt of the Appellant lies on the Respondent herein. However the standard of proof settled in a plethora of cases is proof beyond reasonable doubt. Counsel cited Ajayi v. State (2013) Vol. 2- 3 MJSC Pt. 1 Pg 59 at 64; Igbi v. State (2000) 3 NWLR Pt. 648 Pg. 169 at 192.
OPINION
Learned Appellant’s counsel argued here that the evidence adduced by the state is not enough to justify a conviction especially when the largest part of the evidence of the PW1 and PW3 rested on hearsay. Let me make a quick observation from the facts as contained in the record.
There is no controversy as to the age of the victim. She was 16 years at the time she was taken abroad. The contention that as one of the parents said she was born on the 21st September 1989 and the other said 29th September 1989 amounts to material contradiction in their evidence does not hold water. The different dates does not change the age of the victim and does not amount to material contradiction which can cast doubt on the fact that she was 16 at that time she was taken to Italy. There is no doubt that the Appellant and the victim knew each other.
The Appellant was charged with procurement which promotes prostitution; organizing foreign travel which promotes prostitution; deceitful inducement to go from one place to another, and taking a person under the age of 18 years out of the custody of her parents or lawful guardianship without the consent of the parents/guardian. It is important to point out that in respect of counts 1-3, the age of the victim is not an issue. The victim over 18 years could have consented to the trip, the parents of the victim over 18 years could have consented to the trip. What is important for the Prosecution to prove in those counts was that the Accused procured the adult for the purposes of prostitution. If the offence were at attempt stage, the Prosecution would need to prove the procurement of the victim and the mens rea of the Accused whose intention is to give the victim over to prostitution.
If the offence had in fact been completed, the stark evidence of where the victim was taken to and what she was required to do must be led in evidence. In both cases, the evidence of the victim of whatever age would be needed to prove the procurement, the deceitful inducement and the foreign travel plans whether completed or not made by the Accused to get the victim out of the country.
However, in Count 4 of the charge, the two essential ingredients of the offence is that the victim must be less than 18 years old. It is immaterial whether the victim went willingly. The second ingredient is that she was taken without the consent of any of her parents/guardian.
It is the uncontroverted evidence of the parents as to her age and their lack of consent that is essential to prove the charge.
The issue of hearsay being canvassed by learned Appellant’s counsel is irrelevant in this case as the evidence to prove the age of the victim and the lack of consent by the parents was given by the PW1 and PW3, her father and mother respectively.
I have read the Record of the trial Court as it relates to whether or not the victim was under age and was taken to Italy without her Parent’s consent. At Pg. 43 of the Record PW1, the father of the victim was emphatic as follows:-
I did not know the accused before he took my daughter to Italy. He came for the first day to say he wants to collect the money with which he sent my daughter to Italy. I told him I was not party to his taking my daughter to Italy. As we were talking my wife came out to say this is the boy that has been coming to the market to worry her. I then went to Egor Police post to report. It was transferred to Egor Police Station.
His testimony was not successfully contradicted under cross examination.
The evidence of the mother of the victim, PW3 on Pg. 48 of the Record is clear and uncontroverted as follows:-
‘In 2005 my daughter Eghe left home for School – Akenzuwa Secondary School. When she left she did not come home again the PW1 and I started to look for her, when we did not see her, we went to report to the police. After about one month Eghe came and said she was in Ogun State. On questioning her, she said it was the accused took her.’
In 2006, Eghe left again, she later called to say she was in Italy, she said the accused took her to his sister who took her to Esther Oloye In Italy, I asked her what she was doing there, she said contrary to what she was told by the accused before leaving Nigeria by the accused that she will work in Italy and then go to school, that Esther Oloye told her the day before that she will start prostituting the following day. That at first she refused but she was told there is nothing else to do so she started to prostitute with them. She said they asked her to pay some money for taking her there. I do not know how much. She told me I cannot now remember the amount.
I am persuaded as the learned trial judge was, that the prosecution proved by direct and uncontroverted evidence of the parents of the victim that they did not give consent to the Appellant to arrange for their under age 16 year old daughter to be taken out of their care and custody to Italy. The prosecution proved the charge in Count 4 against the Appellant as I cannot on reading the record find a deliberate action on the part of any of the parents of the victim giving consent for their daughter to be taken to Italy.
The Dictionary defines ‘consent’ as ‘to permit, approve, or agree, comply or yield’.
Even though the onus of proof of the lack of consent was fixed and rested at all times on the Prosecution, as I have said earlier, the Prosecution’s witnesses were firm and unshaken in their testimony that they did not agree, approve or permit their 16 year old daughter to be taken abroad to Italy for whatever purpose.
The definition of consent anticipates an active rather than a passive role in agreeing to do a thing. There is no proof of an active role on the part of the parents yielding their daughter to the Appellant to be sent to Italy.
I am obliged to consider the defence of the Appellant to the effect that the mother of the victim being his sister’s caterer consented to the arrangement. I cannot without more believe that the mere fact that PW3 at one point catered for the Appellant’s sister amounted to her agreement that her daughter should be taken to Italy.
I am of the humble view that the Prosecution proved beyond reasonable doubt that the parents of the victim did not consent to her being taken to Italy. I am obliged to agree with the findings of fact by the learned trial judge on this point which is based on the credibility of witnesses. See Abubakar v. Anobih & Anor (2013) LPELR-20856 (CA); Fashanu v. Adekoya (1974) 6 SC 83; Sagay v. Sajere (2000) 6 NWLR Pt. 661 pg. 360; Nnorodim v. Ezeani (2001) 5NWLR Pt. 706 Pg. 203.
The sole issue is resolved against the Appellant. In the circumstances, this appeal is without merit. The judgment and orders of the High Court of Edo State delivered on 24/3/16 in Suit No. B/202C/11 by Hon. Justice A. Edodo-Eruga is here by affirmed.
Appeal is dismissed.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I had the opportunity to read before now the lead judgment just delivered by my learned brother H.M. OGUNWUMIJU JCA.
I agree with the reasoning and conclusion detailed in the judgment to the effect that this appeal lacks merit and should be dismissed.
I also dismiss the appeal and affirm the judgment of the lower Court delivered on 24/3/2016 in Charge No B/202C/2011.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had the rare advantage of reading before now the judgment just delivered by my learned brother, Helen Ogunwumiju, JCA.
I agree that the offence of which the appellant was convicted, was proved beyond reasonable doubt. For the comprehensive reasons given by my learned brother, I resolve the lone issue in this appeal against the appellant and dismiss the appeal for it lacks merit.
I also affirm the judgment of the trial Court.
Appearances:
Ejemi EtinboweiFor Appellant(s)
Ekere NelsonFor Respondent(s)
