SAIDU v. STATE (2020)

SAIDU v. STATE

(2020)LCN/15414(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Thursday, November 12, 2020

CA/YL/182C/19

RATIO

CRIMINAL LAW: CRIMINAL CONSPIRACY: INGREDIENTS TO BE PROVEN TO ESTABLISH THE OFFENCE OF CRIMINAL CONSPIRACY

CONFESSIONAL STATEMENT: EFFECT OF A CONFESSIONAL STATEMENT

The effect of a confessional statement cannot be under estimated in a criminal trial, it is sufficient to ground a conviction, once the trial Court is satisfied in the truth of the confession without corroboration. See IBRAHIM KAMILA vs. THE STATE (2018) LPELR – 43603 (SC) PP. 32 – 33, PARAGRAPH F, ADOGA vs. FRN (2019) LPELR – 46931 (CA) PP. 18 – 19, PARAGRAPH D, MOHAMMED SARKI FULANI vs. THE STATE (2018) LPELR – 45195 (SC) P. 15, PARAGRAPHS B – F, ALTINE vs. STATE (2018) LPELR – 45965 (CA) PP. 17 – 19, PARAGRAPHS D – E, YESUFU vs. STATE (1976) LPELR – 3527 (SC) P. 9, PARAGRAPHS A – C and EDIM vs. STATE (1972) LPELR – 1013 (SC) P. 5, PARAGRAPHS A – C; (1972) 4 SC (REPRINT) P. 141. PER CHIDI NWAOMA UWA, J.C.A.

CRIMINAL LAW: BURDEN OF PROOF

It is trite that the burden of proof is on the prosecution to prove its case against an accused person beyond reasonable doubt. See Section 135 (1) of the Evidence Act, 2011. Proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. All that is required is proof of all the ingredients of the offence, then the presumed innocence of the accused is done away with. In ORISA vs. STATE (2018) LPELR (SC) P. 44. PARAGRAPHS C-E, his Lordship Peter- Odili, JSC restated the position of the law on the meaning of proof beyond reasonable doubt thus:
“The point has to be made that proof beyond reasonable doubt is not the same as proof beyond a shadow of doubt. Once the credible, cogent evidence of the prosecution witnesses satisfied the expected standard of proof beyond reasonable doubt which is the same as that of proof with a high degree of probability that the accused committed the offence. See LORI vs. THE STATE (1980) 8 – 11 SC 81 at 99; AKALEZI vs. THE STATE (1993) 2 NWLR (PT 273) 1 at 13.”
See also MOSES JUA vs. THE STATE (2010) LPELR – 1637 (SC) PP. 36 – 37; PARAGRAPHS D – A; (2010) 1 FWLR (PT 514) P. 2051; (2010) 4 NWLR (PT 1184) P. 217 and AKINYEMI vs. AKINYEMI & ANOR (1963) LPELR – 15457 (SC) P. 13, PARAGRAPHS A – C. PER CHIDI NWAOMA UWA, J.C.A.

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Between

HADIZA SAIDU APPELANT(S)

And

THE STATE RESPONDENT(S)

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The High Court of Taraba State on the 8th day of March, 2019 presided over by A. B. Abbare, J convicted and sentenced the Appellant to six (6) months imprisonment for criminal conspiracy, twenty (20) years imprisonment for attempt to kidnap or abduct a person and two (2) years imprisonment for concealment of information or plan to abduct a person with no option of fine.

The background facts are that the Appellant was the 2nd Accused at the trial Court where one James Koba was the 1st Accused person, both were arraigned and tried jointly. It was alleged that the Appellant and the said James Koba on or about the 21st day of September, 2016 in Jalingo, Jalingo Local Government Area, Taraba State agreed to kidnap or abduct one Faith Peter Abel and that the Appellant and the said James Koba on the same day attempted to kidnap or abduct the said Faith Peter Abel for ransom. The Appellant pleaded not guilty to the charges. In proof of its case, the prosecution called three witnesses, one Sgt Abubakar Ahmad as PW1, Donald Timga as PW2 and Sgt Sunday Samuel as PW3. The prosecution tendered five Exhibits, the confessional statement of the 1st accused person, James Koba, the alleged confessional statement of the Appellant, a knife and a DSS file jacket which were admitted in evidence as Exhibits “A1”, “A2”, “A3”, “B1” and “B2” respectively. The Appellant testified as a sole witness in her defence. At the close of the trial, the appellant was convicted and sentenced as stated above. The Appellant was aggrieved by the decision of the trial Court, thus this appeal.

The Appellant distilled three issues for the determination of the appeal as follows:
1. “Whether the learned trial judge erred in law when he admitted and relied on the alleged confessional statement of the Appellant to convict her? (Distilled from Ground 2 of the Ground of Appeal)
2. Whether having regard to the evidence adduced at the trial, the conviction and sentence passed on the Appellant is liable to be quashed by this Honourable Court? (Distilled from Grounds 1, 4 and 5 of the Grounds of Appeal)
3. Whether the sentence of 6 months, 20 years and 2 years imprisonment imposed on the Appellant by the trial Court without availing her the opportunity of allocutus even when there are mitigating factors is liable to be reviewed by this Honourable Court?” (Distilled from Ground 3 of the Grounds of Appeal)

The Respondent on her part, identified two (2) issues for the determination of the appeal thus:
1. “Whether having regard to the evidence on record, the trial Court rightly convicted and sentenced the Appellant for the offences with which she was charged before the trial Court? (Distilled from Grounds 1, 2, 4 and 5 of the Appellant’s Notice of Appeal)
2. Whether the failure of the trial Court to avail the Appellant an opportunity for allocutus is sufficient ground to upturn the trial Court’s decision?” (Distilled from Ground 3 of Appellant’s Notice of Appeal)

In arguing the appeal, the learned counsel to the Appellant, Martin Milkman Esq., relied on his brief of argument filed on 8/6/2020 as his argument in this appeal in urging us to allow the appeal, set aside the judgment of the trial Court, quash the conviction, discharge and acquit the Appellant. In arguing his first issue, it was submitted that the Respondent tendered the Appellant’s alleged confessional statement through the PW1 who did not record the statement, the Appellant having recorded her statement by herself, reference was made to the provisions of Section 83 (1) (b) of the Evidence Act, 2011 (as amended) which provides that a document should be tendered through its maker. It was argued that no foundation was laid to warrant the admissibility of the Statement through the non – maker. See IKPEAZU vs. OTTI & ORS (2016) LPELR – 40055 (SC)at 48, PARAGRAPHS B-D.

Further, that the trial Court was wrong to have admitted the alleged confessional statement in evidence despite the objection, pages 49 – 52 of the printed records of appeal. Without conceding that Exhibit A2 was validly tendered, it was submitted that the trial Court ought not to have made use of it, the date on the Exhibit is clearly 21/9/2016 while the Appellant was arrested on 22/9/2016, and only the attestation page was made on 22/9/2016.

Further, without conceding that Exhibit A2 is not defective and is admissible in law, it was submitted that the Appellant ought not to have been convicted based on Exhibit A2 because she denied making the statement when it was sought to be tendered, pages 45 – 47 of the printed records of appeal. See IBRAHIM vs. ABDALLAH & ORS (2019) LPELR – 48984 (SC) pages 24 – 25 to the effect that a document is the best form of evidence, reference was made to the evidence of the PW1 and that of the Appellant as DW2. Further, that oral evidence cannot be used to vary the contents of documentary evidence which is the best evidence, see SKYE BANK & ANOR vs. AKINPELU (2010) LPELR – 3073 (SC) 39 – 40, PARAGRAPHS E-A.

It was the contention of the learned counsel to the appellant that the trial Court ought to have made a finding as to whether the appellant made the confessional statement or not before convicting her based on the retracted statement. See HARUNA vs. THE ATTORNEY GENERAL OF THE FEDERATION (2012) LPELR – 7821 (SC) PAGE 16, PARAGRAPHS A-C. Further, that the trial Court ought to have tested the veracity of the confessional statement before convicting the Appellant. See ADEDARA vs. THE STATE (2009) LPELR – 8194 (CA) 82, PARAGRAPHS A-G and LASISI vs. STATE (2013) LPELR 20183 (SC) 18, PARAGRAPHS D-F; PAGES 45 – 46, PARAGRAPHS G-B.

In arguing the appellant’s second issue, it was submitted that to secure a conviction for any offence under our laws, the prosecution has the burden to prove all the essential elements of the offence beyond reasonable doubt and the onus does not shift. See CHUKWUDOZIE vs. STATE (2019) LPELR – 47164 (CA) PAGES 37 – 38, PARAGRAPHS F-A. It was argued that there was not reliable and positive evidence to establish any of the alleged offences against the appellant, reference was made to Section 97 of the Penal Code which describes the offence of criminal conspiracy, defined in Section 96 (1) of the Penal Code and the case of THE STATE vs. BELLO (1989) 1 CLRN 370 at 372. It was submitted that the offence of criminal conspiracy was not proved in that there was no evidence of agreement between the Appellant and the then 1st accused person. It was submitted that in the 1st accused’s examination in chief he stated that he did not know the appellant before the trial, pages 69 and 71 of the printed records of appeal.

In respect of the second offence of attempt to kidnap or abduct a person punishable under Section 4 of the Taraba State Kidnap and Abduction (Prohibition) Law, 2010. It was argued that the ingredients of the offence were not proved and that out of the three prosecution witnesses called by the prosecution at the trial it was only the PW2 who touched on the issue of attempt to kidnap, he gave evidence to the contrary to the effect that the Appellant took the alleged victim (Faith) out of the car and did not demand any ransom. It was argued that on the other hand, the appellant assisted the alleged victim to escape from being kidnapped.

On the third offence of concealment of information of the plan to kidnap or abduct a person from security agencies punishable under Section 12 of the Taraba State Kidnap and Abduction (Prohibition) Law, 2010, it was submitted that there was no evidence establishing this offence against the Appellant. It was submitted that the appellant was a victim of the said crime rather than an accomplice or a conspirator from her alleged confessional statement. It was argued that there is doubt as to the appellant’s presence at the scene of the crime if at all and whether she was there as a victim, to help the alleged victim Faith escape or how she could have escaped from the scene. It was concluded on this issue that the appellant’s guilt was not established beyond reasonable doubt, therefore the doubt should be resolved in favour of the appellant. See SANI vs. STATE (2015) LPELR – 24818, PAGE 26, PARAGRAPH C-E.

On the third issue, it was submitted that if the trial Court had availed the appellant the opportunity to plead her allocutus, the trial Court would have imposed a lesser punishment. It was argued that the sentence imposed on the appellant is severe in the peculiar circumstances of this case. In the alternative, we were urged to review the sentence downwards should the Court sustain the conviction by reducing the sentence to one year imprisonment from the date of her conviction and sentence. See UBA vs. STATE (2018) LPELR – 46747 (CA) PAGES 32 – 33, PARAGRAPHS A-B and ODEH vs. FRN (2008) LPELR – 2205 (SC) PAGE 18, PARAGRAPHS E – G. We were urged to quash the conviction, discharge and acquit the appellant for all the offences charged.

In response, the learned State Counsel, Taraba State Ministry of Justice E. T. Anderifun Esq., for the Respondent relied on his brief of argument filed on 15/7/2020 as his argument in this appeal in urging us to dismiss the appeal and affirm the decision of the trial Court. In arguing his issue one, it was submitted that this Court should scrutinize the evidence adduced at the trial Court to determine whether the decision of the trial Court should be interfered with. See OKIEMUTE vs. THE STATE (2016) VOL. 260 LRCN 1 at 42 – 43, PARAGRAPHS EE – A as to the standard of proof required by law in criminal trials. The learned State Counsel submitted that the burden of proof lies on the prosecution to prove the guilt of an accused person beyond reasonable doubt. See SECTION 36 (5) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999 (AS AMENDED), SECTION 135 (1) OF THE EVIDENCE ACT, 2011, STATE VS. SALAWU (2012) 203 LRCN P.183 AND OKORO VS. THE STATE (2012) VOL. 207 LRCN P. 108 AT 134. ALSO, NOMAYO VS. THE STATE (2018) VOL. 283 LRCN 168 AT 178 – 179, NASIRU VS. THE STATE (1999) 2 NWLR (PT 589) 87 at 98 amongst others. It was argued that the evidence of a sole witness is enough for a conviction unless the offence charged requires corroboration of the evidence in support. See ONAFOWOKAN vs. STATE (1985), NWLR (PT 2) 223.

The evidence of the PW1 – PW3 was reviewed. It was argued that Exhibits B1 and B2 (a knife and the DSS file Jacket) were tendered at the trial Court without any objection, these Exhibits were said to have been mentioned in Exhibit A2, pages 64 – 65 of the printed records of appeal. It was argued that the Appellant who denied making Exhibit A2 did not tell the Court what she stated in her statement purportedly made on 22/9/2016 as opposed to 21/9/2016. It was argued that the signature on Exhibit A2 is similar to that on Exhibit 3, a Certified True Copy of the motion for bail and the supporting affidavit signed by the appellant, pages 74 – 75 and 75 – 80 respectively of the printed records of appeal. It was submitted that the trial Court properly evaluated the evidence before it, the contents of Exhibits A1 and A2 as well as the evidence of the prosecution witnesses, pages 152 – 157 of the printed records of appeal. Further, that a confession is an admission of having committed the offence charged.

See SECTION 28 OF THE EVIDENCE ACT, 2011, IBRAHIM vs. THE STATE (2014) VOL. 227 LRCN P.42 at 83, PARAGRAPHS E – JJ, a confessional statement can ground a conviction without corroboration as long as the Court is satisfied with the truth in the confession. See FABIYI vs. THE STATE (2015) VOL. 245 LRCN 1 at 29, PARAGRAPHS F – K and AMOS vs. THE STATE (2018) VOL. 284 LRCN 111 at 141, PARAGRAPHS F-JJ. It was submitted that apart from the evidence of the PW2 which pinned down the Appellant as one of the culprits, Exhibit A2 was subjected to the laid down test before confirming that it was made by the appellant, page 157 of the printed records.

On the offence of conspiracy, it was submitted that it could be proved by inference. See THE STATE vs. GWANGWAN (2015) VOL. 249 LRCN 76 @ 104, PARAGRAPHS A-F. It was submitted that the evidence of the PW2 showed that the Appellant and the then 1st accused person agreed and planned to way lay the PW2 whom they stopped while carrying his boss daughter Faith. Further, that Exhibits A1 and A2 spelt it all out on how the plan was hatched. See ADELEKE vs. THE STATE (2014) VOL. 230 LRCN P. 161 at 190 -191. It was submitted that Exhibits B1 and B2 were also tendered in evidence without any objection. Further, that even though the appellant and the then 1st accused denied knowing each other, Exhibits A1 and A2 were rightly admitted and acted upon by the trial Court, the contents are similar. See PATRICK NJOVENS vs. THE STATE (1973) 1 NWLR 331 and EGUNJOBI vs. FRN (2013) VOL. 218 (PT 2) 88 at 108 – 109, PARAGRAPHS JJ – A. It was argued that the act of one person where two set out to do an illegal act, it is taken to be the act of both, it is immaterial for instance where a weapon is used, who used the weapon. See ALI vs. THE STATE (2019) VOL 294 LRCN 1 at 25.

On attempt to kidnap or abduct a person, it was submitted that the trial Court was right to have held that all the ingredients of the offence were proved, via Exhibits A2, A3, B1, B2 and the evidence of the PW2. In defining attempt, reliance was placed on the case of IBRAHIM vs. THE STATE (1995) 3 NWLR (PT. 381) 35 at 45, PARAGRAPHS F-H as a conduct that constitutes substantial steps towards completing the crime and a failure to complete the crime, reference was made to the contents of Exhibits A1 and A2, as how the appellant and the then 1st accused stopped the vehicle carrying the said child, Faith, how the driver (the PW2) was stabbed, all that went on at the scene and how they prevented them from getting away. The contents of the Exhibits A1 and A2 were reviewed. It was argued that the charge against the appellant is attempt to kidnap not kidnapping which the appellant’s counsel gave the ingredients, we were urged to discountenance the submissions.

On concealment of information or plan to kidnap a person from security agencies, it was submitted that a confessional statement of an accused person tendered in evidence forms part of the evidence for the prosecution. It was submitted that Exhibit A2, the evidence of the PW2 and the appellant’s evidence identified the appellant as the person that attacked the PW2 on that fateful day in company of the then 1st accused person at the trial Court. It was submitted that from the appellant’s confessional statement, the appellant knew of the planned kidnap. Further, that Exhibit A3 and the appellant’s evidence as the DW2 cleared the doubt as to whether the appellant made Exhibit A2 or not and by Section 102 of the Evidence Act, 2011, Exhibit A2 formed part of the records of the Police, a public document that could be tendered by the PW1. See TABIK INVESTMENT LTD vs. GTB (2011) ALL FWLR (PT. 602) 1592, ONWUZURUIKE vs. EDOZIEM & ORS (2016) VOL. 252 LRCN 163 at 181, PARAGRAPHS EE – JJ, MICHAEL OLOYE vs. THE STATE (2018) LPELR – 44775 (SC) PAGES 41 – 42, PARAGRAPHS F-C and SECTION 83 (4) OF THE EVIDENCE ACT, 2011. It was argued that where an accused person denies knowledge of an act or omission, such person cannot take cover under any defence afforded by the law. See EDWIN vs. THE STATE (2019) VOL. 291 LRCN 109 at 63, PARAGRAPHS A – P. It was concluded on this issue that a person who has confessed to a crime ought not to go free merely because he/she retracted his/her confessional statement. See EGBOGHONOME vs. STATE (1993) 7 NWLR (PT. 306) 383 at 435, PARAGRAPH D.

On the Respondent’s second issue, it was submitted that failure of a trial Court to avail a convict an opportunity for allocutus is not a ground to upturn the decision of the trial Court. See EDWIN vs. THE STATE (2019) VOL. 291 LRCN 109 at 125, PARAGRAPHS P – U. It was submitted that Section 4 of the Taraba State Kidnap and Abduction (Prohibition) Law (Supra) under which the appellant was charged and convicted carries a twenty years (20) imprisonment with no option of fine while Section 12 of the same Law in respect of concealment of information or knowledge of a plan to kidnap or abduct a person and fails to inform the relevant security agencies commits an offence and is liable on conviction to ten (10) years imprisonment without an option of fine, it is therefore a strict liability offence with mandatory sentences. See EZEANI vs. FRN (2019) VOL. 292 LRCN 131 at 158, PARAGRAPHS F – K. It was submitted that the trial Court lacked the jurisdiction to have availed the appellant an opportunity of allocutus.

I have examined the issues formulated by the parties for the determination of the appeal. The appellant’s issues one and two are covered by the Respondent’s issue one while the appellant’s issue three is covered by the Respondent’s second issue. I will recouch the issues for determination into two issues thus:
1. From the totality of the evidence adduced before the trial Court, was the Court right in convicting and sentencing the Appellant for the offences with which she was charged before the trial Court?
2. Can the sentence of 6months, 20 years and 2 years imprisonment imposed on the Appellant by the trial Court be reviewed for the reason of the appellant not being availed the opportunity of allocutus when there exists mitigating factors?

Looking at the evidence before the trial Court, the Appellant as the DW2 retracted Exhibit A2 (her alleged confessional statement) on the basis that the statement she recorded by herself was made on 21/9/2016 while she was arrested on 22/9/2016. To test the truth of the Appellant’s assertion, the learned trial judge compared the signature in Exhibit A2 with that of Exhibit A3 (a certified copy of a motion for bail and the affidavit in support signed by the Appellant before the trial Court) and found that they are similar, therefore found that the appellant made Exhibit A2. Neither the Appellant nor her learned counsel has refuted the fact that the appellant signed Exhibit A3 and that the signature on it is similar to that on Exhibit A2, the Appellant’s alleged confessional statement. The appellant under cross examination admitted that she signed Exhibit A3. On the issue of the difference between the date the Appellant made her statement and the date of her arrest, the PW1 (the investigation Police officer/IPO) in his testimony testified that the Appellant made her statement on 21/9/2016 while she was arrested on 22/9/2016. The trial Court examined Exhibit A2 alongside the evidence adduced by the PW1 (IPO), the DW2 (Appellant) and that of the PW2 (Donald Timga Asong) a victim of the alleged crime. With a close look at Exhibit A2, part of which read thus:
“I meet one James Johnson Kuba who is also in my department. James introduced me to a project which he said he wanted to kidnapped the Speaker’s daughter. I warn him but he will not listen. He told me that if I tell anybody about it his going to kill me and my entire family. It truth that I have been seeing him. When my parent know about it they where mad at me….
James thought that since my parent have stop me from seeing him, I will tell him my dad about his secret so he told me that he is going to kill me and spoil my future. He told me After he kidnap the girlhe will take her to a hotel in Nukkai. It was also truth that I meet with James today being Wednesday the 21st of September, 2016.
…
I meet James in road block. I enter into the keke, I told him where I was going to, when we reached Owoniyi Quarters. He said I should drop down. I obey him Because I was afraid of been killed. I followed him, he told me that when I see a blue car that has mopol written on it I should stop it. He told me he wanted to talk to the driver. I told him that since you know, it will be better for you to stop him yourself he then said if I want to live I should do as he said I should tell the driver that his fuel is liking. I stop the car and told him the driver that his fuel is liking he smile at me and said that it water he then asked me where I was going to I told him I was going to Town he was about to say I should come into the car when James came and told him that his fuel is liking he came out to check immediately I saw James with a knife the first thing I did was to open the door of the car for the little girl to ran for life. James try to drive away with the car but the driver shouted thief, thief, and people start chasing him. That was when I know that he wanted to kidnap the girl and kill the driver. It is also truth that I wanted to Black-mail him by copying the speaker number from his phone but he does not allow me to touch his phone.” (Underlined mine for emphasis).

From the reproduced portions of Exhibit A2, the appellant gave details of her relationship with James Koba (the 1st accused at the trial) and also the role she played on the day of the alleged incident, she admitted knowing about the plan and indeed planned with the said James Koba about kidnapping the speaker’s daughter Faith while in the company of the driver (PW2) of the car she was in, also the appellant and her friend agreed on the “trick” to be used on the PW2, alleging leakage of fuel from the vehicle. A confession as rightly defined by the learned counsel to the Respondent is an admission of having committed the offence. The learned counsel to the Appellant argued that because of the alleged discrepancy in respect of the date the Appellant made her statement, the appellant was said not to have made Exhibit A2. The trial Court rightly admitted Exhibit A2 in evidence and it formed part of the Court’s records and evidence before the Court. The appellant having made the statement, under caution admitting the offences charged, the statement Exhibit A2 is clearly confessional. See Section 28 of the Evidence Act 2011, GIRA vs. STATE (1996) LPELR – 1322 (SC) P. 18, PARAGRAPHS B – D, JOHN vs. STATE (2016) LPELR – 40103 (SC) P. 13, PARAGRAPHS D – E; (2016) 11 NWLR (PT 1523) P. 191; (2016) 1 – 3 SC. (PT 11) P. 147 and KASA vs. THE STATE (1994) 5 NWLR (PT 344) 269. The effect of a confessional statement cannot be under estimated in a criminal trial, it is sufficient to ground a conviction, once the trial Court is satisfied in the truth of the confession without corroboration. See IBRAHIM KAMILA vs. THE STATE (2018) LPELR – 43603 (SC) PP. 32 – 33, PARAGRAPH F, ADOGA vs. FRN (2019) LPELR – 46931 (CA) PP. 18 – 19, PARAGRAPH D, MOHAMMED SARKI FULANI vs. THE STATE (2018) LPELR – 45195 (SC) P. 15, PARAGRAPHS B – F, ALTINE vs. STATE (2018) LPELR – 45965 (CA) PP. 17 – 19, PARAGRAPHS D – E, YESUFU vs. STATE (1976) LPELR – 3527 (SC) P. 9, PARAGRAPHS A – C and EDIM vs. STATE (1972) LPELR – 1013 (SC) P. 5, PARAGRAPHS A – C; (1972) 4 SC (REPRINT) P. 141.

The PW1 Sgt. Abubakar Ahmed testified that the Appellant’s co-accused at the trial (James Koba) who was arrested at the scene of the alleged crime that mentioned the role played by the Appellant, that led to her arrest, the PW1 confirmed that the Appellant made Exhibit A2 herself, in his presence.

The PW2 (Donald Tinga) one of the victims, in his evidence in chief gave account of how the appellant stopped him on the pretext that his vehicle was leaking fuel, shortly after, the 1st accused at the trial Court who was by her side also used the same method of leaking fuel from the car to make the PW2 with Faith (the Speaker’s daughter) inside the car, stop to examine the car before the 1st Accused Person tried to overpower him, to enable him drive away the car with Faith inside it, the PW2 raised alarm and the 1st accused was caught at the scene while trying to run away after stabbing the PW2 on his cheeks with a knife, Exhibit B1. The evidence of the PW1 and PW2 corroborated the contents of Exhibit A2, the confessional statement of the Appellant and the trial Court was right to have found so in its judgment at page 157 of the printed records of appeal.

Coming to specifics, in respect of the offence of criminal conspiracy, it is trite that conspirators need not have met or be seen meeting, it is usually proved by inference. It is hatched in secrecy. The inference can be drawn from the circumstances of the case, which can be inferred from the evidence led. Conspiracy can be inferred from the acts of doing things towards a common end or goal where there is no direct evidence in support of an agreement between the two accused persons or more. The conspirators need not know themselves. The inference can be deduced from the criminal acts or inactions of the parties concerned. See, ONYENYE vs. STATE (2012) 15 NWLR (PT. 1324) 586, P. 9, 36 – 37, ODUNEYE vs. THE STATE (2001) 12 NWLR 88, OBIAKOR vs. THE STATE (2002) 10 NWLR (PT 776) P. 612, ADEKOYA vs. STATE (2017) LPELR – 41564 (SC) PP. 17 – 18, PARAGRAPH A and ADEPOJU vs. STATE (2018) LPELR – 44355 (SC) P. 9, PARAGRAPHS C – D. The important element in the offence of conspiracy is the common intention which can be inferred from the surrounding circumstances of each case. The evidence of the PW2 and the contents of Exhibit A2 showed that the Appellant and her colleague/friend (the 1st accused at the trial Court) agreed and planned on the same strategy of how to way lay the PW2, the driver in whose company his boss’ daughter was, when they were stopped by the Appellant and later her colleague, his attention being drawn that his car was leaking fuel. Exhibit A2 is self-explanatory on how the appellant agreed with her colleague to kidnap the then Speaker’s daughter, Faith and tallies with the evidence of the PW2 and Exhibits B1 and B2 with which the PW2 was stabbed. The appellant denying knowing or having met her colleague before her arrest is therefore immaterial and of no consequence. On Exhibit B1, the law is that where two or more persons do an illegal act and one uses a weapon to hurt any person in the process, all the accused persons would be held liable for the consequences resulting from the use of the weapon as rightly argued by the learned State Counsel. It is immaterial who between the two in this case, used the knife to stab the PW2 to dispossess him of the car with Faith inside it. It is taken to be the act of both the Appellant and her colleague. The learned trial judge was right to have held that criminal conspiracy was proved.

On proof of the offence of attempt to kidnap or abduct a person, it is apt at this point to define what constitutes an attempt to commit an offence. In OZIGBO vs. COP (1976) LPELR – 2890 (SC) P. 12, PARAGRAPHS F – G, the Supreme Court, per Alexander, JSC summed it up thus:
“To constitute an attempt, the act must be immediately connected with the commission of the particular offence charged and must be something more than mere preparation for the commission of the offence; see R V. EAGLETON, DEARS 515; R V. ROBINSON, 11 Cr. APP. R.124; CORNER vs. BLOOMFIELD 55 Cr. APP. R. 305.”
See also JEGEDE vs. STATE (2001) LPELR – 1603 (SC) PP. 18 – 20, PARAGRAPHS C – A, LAWAL vs. STATE (2016) LPELR – 40633 (SC) PP. 16 – 17, PARAGRAPHS E – C, REV. KING vs. STATE (2016) LPELR – 40046 (SC) P. 64, PARAGRAPHS A – B and DIBIA vs. STATE (2017) LPELR – 48453 (SC) PP. 20-22, PARAGRAPH F.
In the offence of attempt to commit the offence of kidnapping or abducting a person in the present case, it must be shown that the appellant had the intent to commit the offence charged, substantial steps towards completing the crime must have been taken but a failure to complete the crime for whatever reason. The important element to look out for is the intention of the accused person and what he planned to achieve. Exhibit A2 and the evidence of the PW2 gave out the intention of the Appellant when she set out to the Legislative Quarters, Jalingo on the fateful day. The intention was to kidnap the Speaker’s daughter Faith for a ransom. In Exhibit A2, the Appellant gave details of how she and her friend stopped the car with Faith in it, how the driver the PW2 was stabbed and her colleague rushed inside the car, tried to drive it away and the struggle between the PW2 and the Appellant’s colleague which made it impossible for the car to be driven away. In Exhibit A2, the Appellant made it clear that the intention was to kidnap Faith. It was the alarm raised by the PW2 that prevented the completion of the offence of kidnapping. The Appellant was at the scene of the crime and was the first to stop the PW2’s car informing him that his car was leaking fuel, which made him stop to examine the car to see if truly his car had a fuel leakage. The car was stopped to enable the Appellant’s colleague move in to stab the PW2 to enable her colleague drive away the vehicle. The trial Court was right to have held that the prosecution proved the offence of attempt to kidnap or abduct a person beyond reasonable doubt.

As rightly observed by the learned state counsel, the Appellant’s argument at pages 14 – 15, paragraphs 4.29 – 4.32 is in support of the offence of kidnapping or abduction, which is not the charge for which the appellant stood trial but, the offence of attempt to kidnap or abduct. Therefore there was no need to have removed the victim(s) from the car as an element to be proved as highlighted by the learned counsel to the Appellant in his brief of argument when he argued that nobody was removed from the vehicle. Attempt to commit an offence must be differentiated from the actual offence if committed.

On concealment of information or plan to kidnap a person from security agencies, it is the law that a confessional statement of an accused person when admitted in evidence, forms part of the evidence on record. Exhibit A2 was clear as to the role the Appellant played from the plan till execution, had the plan or strategy not been interrupted, the act of kidnapping or abduction of a person would have been completed. The evidence of the PW2 earlier highlighted in this judgment is clear on this issue, he easily identified the Appellant as the person that first stopped his car with the pretext that his car was leaking petrol, the vehicle stopped, which enabled the appellant’s colleague stab the PW2 to enable him drive away the car with Faith inside it as planned with the Appellant. The Appellant knew of the plan to kidnap Faith as hatched by her colleague but, she did not report it, instead she was part of the plan to kidnap which failed but, would have been completed had the PW2 not raised the alarm which enabled people chase and arrest the appellant’s colleague, the appellant was later arrested.
On the competence of the PW1 (IPO) to tender Exhibit A2, the learned state counsel was right to have argued that he had the competence to have done so by virtue of the provisions of Section 83 (4) of the Evidence Act, 2011 having written the cautionary portions of the appellant’s statement and same having been made in his presence, he was in a position to confirm it.
On the other hand, the Appellant’s presence was fixed at the scene by the evidence of the PW2 and her evidence as the DW2, both also showed the strategy adopted by the appellant which was followed by her colleague, that of informing the driver the PW2 of the leaking fuel from his vehicle to get him to stop to enable her and her colleague get away with the girl Faith. In Exhibit A2, the Appellant mentioned Exhibits B1 and B2 having been in custody of her colleague before the incident, she also admitted signing Exhibit A3 (the motion papers for her bail) where a similar signature appeared on Exhibit A2. No doubt, the Appellant made Exhibit A2 where she confessed committing the offences charged, there is no evidence that is better than a confession in a criminal trial. See SOLOLA & ANOR vs. STATE (2005) LPELR – 3101 (SC) PP. 38 – 39, PARAGRAPHS G – A, EDAMINE vs. STATE (1996) LPELR – 1002 (SC) PP. 12, PARAGRAPH B and MUSA vs. STATE (2019) LPELR – 46350 (SC) P. 9, PARAGRAPHS E – F.

The appellant retracting her statement is not enough, otherwise every accused person who confesses having committed an offence, if he changes his mind and retracts it would simply walk away a freeman which would not be good for our criminal justice system. See DARLINTON VS. FRN (2018) LPELR – 43850 (SC) PP. 17 – 18, PARAGRAPHS D – A, where his Lordship Eko, JSC on a retracted statement held thus:
“An extra – judicial confession made voluntarily which is positive and unequivocal and amounting to admission of guilt of the person charged can be used by the Court to predicate the conviction of the accused on regardless of whether the maker resiled from it or attempted to retract it: STANLEY ADIGUN EGBOGHONOME VS. THE STATE (1993) 7 NWLR (PT 306) 383. In DIN VS. AFRICAN NEWSPAPERS OF NIGERIA LTD (1990) (PT. 139) 392; (1990) 21 NSCC (PT 2) 313, admissions are held to be the best evidence. The old adage is no man ordinarily tell lies to incriminate himself.”

The learned counsel to the Appellant had made out that the appellant at the scene opened the door of the vehicle to assist the girl Faith to run away, on the other hand from the contents of Exhibit A2 and her evidence as the DW2 since she knew of the plan and strategy of her colleague to kidnap or abduct Faith she ought to have divulged the information to security agents rather than making out that she was at the scene to help one of the victims escape, the story does not hold any water, the Appellant was there to assist her friend. The trial Court was right to have held that the prosecution proved the offence of concealment of information or plan to kidnap a person from security agents against the appellant beyond reasonable doubt. Issue one, is resolved against the Appellant.

On issue two, on Allocutus, it is only desirable to consider factors that could work on the mind of the Court to reduce a heavy punishment to a lighter term. It is neither a right nor a defence, also not enough to upturn the trial Court’s decision. The learned counsel to the Appellant had argued that because the trial Court did not avail the appellant of the opportunity of allocutus when there were alleged mitigating factors which would have entitled the Appellant to a review downwards of her sentence for the various offences for which she stood trial convicted and sentenced.
I will examine the law under which the Appellant was tried and convicted. Sections 4 and 12 of the Taraba State Kidnap and Abduction Law (Supra) provides as follows:
4. “A person who attempts to commit the act of kidnapping or abduction of persons commits an offence under this law and is liable on conviction to twenty (20) years imprisonment without an option of fine.”
12. “Any person who conceals any information or has knowledge as to the existence of a kidnap group or is aware of the act of kidnapping or abduction but fails to inform the relevant security agencies commits an offence and is liable on conviction to ten years imprisonment without an option of fine.”
The punishment under the sections which the appellant was charged are strict liability offences, while the prescribed punishment in each case is mandatory with no option of fine. In a case with mandatory sentence for an offence, the Court does not have the jurisdiction to entertain allocutus in view of reducing the prescribed sentence. Where, upon conviction as in a mandatory sentence of death for murder, allocutus will not mitigate the sentence of death which naturally flows from the conviction in a charge of murder, the penalty is a capital sentence. After a conviction, the procedure of calling upon a convicted defendant for his allocutus, is a mere facility to mitigate the sentence to be imposed where the relevant law gives the Court the discretion to do so. Sections 4 and 12 of the Taraba State Kidnap and Abduction Law (Supra) provides for a mandatory sentence of twenty (20) years imprisonment for offences under Section 4 and ten (10) years imprisonment for offences under Section 12 of the same law. This Court therefore has no jurisdiction to review the sentences imposed by the trial Court where mandatory sentences have been provided for. See CHIDI EDWIN vs. THE STATE (2019) LPELR – 46896 (SC) PP. 26 – 27, PP. 28 – 29, PARAGRAPHS E – B and PARAGRAPHS 31 – 33 A – B, STATE vs. BABANGIDA (2013) LPELR – 20590, SALAMI vs. STATE (2013) LPELR PP. 19 – 20 PARAGRAPH A, HARUNA JIMOH AYOMITAN vs. THE STATE (2018) LPELR – 45700 (CA) PP. 39 – 48, A – B, EZEANI vs. FRN (2019) LPELR – 46800 (SC) 26 – 27, B – D and AHMED SALAMI vs. THE STATE (2013) LPELR – 21112 (CA) PP.19 – 20.
Further, it is deductible that since the trial Court lacked the jurisdiction to impose a lower or a higher punishment for the offences for which the Appellant was convicted, naturally the convict would not be availed an opportunity of allocutus because it would be of no use. Discretion cannot be exercised over a mandatory sentence. The trial Court was right not to have availed the appellant the opportunity of allocutus. The cases relied upon by the learned counsel to the appellant are distinguishable from the present case in that in those cases, a range of term of years of imprisonment and or option of fine is given, for instance where it provides for not less than XYZ years of imprisonment means the sentence cannot exceed XYZ number of years or ABC amount of fine to be paid in addition or in the alternative the amount specified on ABC cannot also be exceeded. In these case, the trial Court or this Court in appropriate cases would be in a position to review the punishment considering the allocutus where urged. The present appeal does not fall into the above category of cases. This Court is not in a position to review the conviction and sentence of the Appellant by the trial Court. The second issue is resolved against the Appellant.
In sum, the appeal fails and it is hereby dismissed.
The judgment of the trial Court in respect of the Appellant is hereby affirmed.

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance the draft of the judgment just delivered by my learned brother Chidi Nwaoma Uwa JCA. My learned brother has exhaustively and adroitly dealt with the issues for determination. I have nothing more useful to add.

For the reasons contained in the judgment, I too dismiss the appeal and affirm the judgment of the Court below.

ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.

Appearances:

Martin Milkman, Esq. For Appellant(s)

E. T. Anderifun, Esq., State Counsel I, Taraba State Ministry of Justice For Respondent(s)