TITILAYO FOLORUNSO v. FEDERAL REPUBLIC OF NIGERIA
(2019)LCN/12625(CA)
In The Court of Appeal of Nigeria
On Thursday, the 31st day of January, 2019
RATIO
CRIMINAL LAW: OFFENCE OF TRAFFICKING
“Procurement is not defined in the Trafficking in Persons Act but a similar Legislation the Sexual offences Act of the United Kingdom provides that it is an offence for a person to procure a woman by threats, intimidation, false pretenses or false representation to have sexual intercourse in any part of the world. See Sexual Offences Act 1956, Section 2 amended by Criminal Justice and Public Order Act 1994. (Just for analogous purposes). Generally, procuring an offence implies bringing about, instigating a crime i.e. setting out to see that it happens and taking the appropriate steps to produce that happening. See Procurement in Dictionary of Law; L.B Curzon 6 ed. 335. In Blacks Law Dictionary procurement also means the act of persuading or inviting another especially a woman or child to have illicit sexual intercourse procure.” PER ONYEREM OKORONKWO, J.C.A.
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria
ABUBAKAR MAHMUD TALBA Justice of The Court of Appeal of Nigeria
Between
TITILAYO FOLORUNSO Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA Respondent(s)
Being dissatisfied with the judgment the appellant appealed to this Court upon the Notice of Appeal dated 23/4/18 and filed 24/4/18 which raised the following grounds of appeal.
GROUND 1
The learned trial Court erred in law when it held that the case of the appellant was weak and could not create a doubt in the mind of the Court and that the prosecution proved its case beyond reasonable doubt against the appellant.
GROUND 2
The learned trial Court erred in law when it reached a judgment that is not supported by the evidence that was before it.
GROUND 3
The trial Court erred in law when it gave probative value to the evidence of PW3 and held that her evidence corroborated the testimony of PW1.
Facts
The facts of the case leading to the appeal are as given by the trial Judge at pages 146-148 of the record. Briefly put however it was that the appellant and her husband Idowu Folorunso procured the victim of the matter PW1 Adesina Opeyemi Abidemi for their sister and sister-in-law respectively, one Odunayo Fashola for use in prostitution in Libya. Details were given of the representations made to the victim/PW1 by the appellant and her husband DW1 to induce her to undertake the journey. Account was also given of the horrendous and hazardous journey from Ibadan, Kano to Agadez in Niger Republic and through the Sahara desert to Tripoli in Libya. An account was given of how Odunayo Fashola sold the victim/PW1 to one Madam Muliat in a brothel or connection house in Libya where she was subjected to the most dangerous form of sexual prostitution meeting from initial five men daily to about 15 or more. Account was further given of the pregnancies the victim had which were aborted by her slavers and the many times she tried to escape but was arrested and severely punished and forced to resume her sexual ordeal. Account was given of her escape and return to Nigeria through the help of one Joseph a Ghanaian who testified as PW2. At the end of her sojourn at the brothel, it was discovered she was infected with the dreaded HIV disease and was found to be pregnant again before her escape to Nigeria. More details are contained in the judgment as indicated and in the statement of the appellant and her husband co-accused as contained in the record.
Issues for Determination
In her brief of argument, the appellant raised three issues for determination namely:-
Whether it was right for the trial Court to have shifted the burden of proving that the appellant did not commit the offences for which he was charged on the appellant?
Whether by the totality of evidence before the trial Court, the prosecution indeed proved the guilt of the appellant beyond reasonable doubt?
Whether the lower Court was right to have given probative value to the evidence of PW1 and PW4?
The respondent in its brief of argument filed only one issue at paragraph 2.1 thereof which is -Whether the trial Court was right in convicting and sentencing the Appellant (couched from grounds one, two and three of the Notice of Appeal) see pages 157 161 of the Records of Appeal.
Argument on issues
The main argument of the appellant in her brief is as contained at paragraph 4.5 and 4.6 thereof where appellants counsel argued thus:
Further, your Lordships, it is a trite principle of law that the prosecution as in the instant case, is under obligation to prove the Appellants guilt beyond reasonable doubt and not for the appellant to prove his innocence. It was the case of the appellant in her extra-judicial statement on pages 11 and 12 of the Records of Appeal that owing to the prior and constant communication between PW1 and her sister (Odunayo Fashola) to undertake a foreign travel, that she only called PW1 on the mobile phone through her husband (1st Defendant) and informed PW1 that her sister (Odunayo) Fashola) was around and that she (PW1) should come over; that on the PW1s arrival, her sister (Odunayo Fashola) and PW1 had a discussion about travelling, the outcome which PW1 relayed to her and that PW1 reinstated her earlier interest in travelling. The Appellant made it clear that she was not part of this conversation between PW1 and Odunayo Fashola.
Further My Lords, there was no evidence whatsoever, which suggests that the Appellant had any prior knowledge that Odunayo Fashola resides or engaged as a commercial sex worker in Libya neither was it the duty of the Appellant to establish this fact before the trial Court and we humbly urge your Lordships to so hold.
On the basis of the above argument, appellant contends in Issue No.2 that there was no basis for holding that the prosecution proved the case against the appellant and that having regards to the alleged contradictions in the evidence of PW1, the lower Court ought not have convicted appellant upon such evidence.
For the respondent, the point was made in paragraph 3.4 thus:
In Ogidi vs. State (2005) Vol. 5 M.J.S.C 155 at pages 173 174 paragraphs G-A. The prosecution must establish the guilt of an accused beyond reasonable doubt in a criminal case. See David Obue vs. The State (1976) All NLR 139. A trial Court must in fulfillment of this duty consider the totality of the evidence before the Court that is, aspects which are favorable and those not favorable. It is after such duty that the Court then comes to a conclusion as to whether or not the case was established beyond reasonable doubt.
Charges
The charges against the appellant were brought under Sections 15 (a) and 16 of the Trafficking In Persons (Prohibition) Law Enforcement and Administration Act 2003 as (amended) they provide thus:
Procurement of any person for prostitution, pornography and use in armed conflict;
Any person who…
15. (a) Procures, uses or offers any person for prostitution, or the production of pornography, or for pornographic performances;
(b) Keeps a brothel;
(C) Allows a person under the age of eighteen years to be in a brothel or trades in prostitution:
(d) Procures, uses or offers any person for the production and trafficking in drugs;
(e) Traffics any person for the purpose of forced or compulsory recruitment use in armed conflict.
Commits an offence and is liable on conviction to imprisonment for fourteen years without an option of fine.
16. Foreign travels which promote prostitution
Any person who organizes or promotes foreign travels which promote prostitution of any person or encourages such activity commits an offence and is liable on conviction to imprisonment for ten years without an option of fine.
The main ingredient of Section 15 (a) of the Act consist of (1) procuring or (2) using or (3) offering any person for prostitution. In this case, the appellant was alleged in the first instance to have procured the PW1 Adesina Opeyemi Abidemi to be used for prostitution in Libya.
Procurement is not defined in the Trafficking in Persons Act but a similar Legislation the Sexual offences Act of the United Kingdom provides that it is an offence for a person to procure a woman by threats, intimidation, false pretenses or false representation to have sexual intercourse in any part of the world. See Sexual Offences Act 1956, Section 2 amended by Criminal Justice and Public Order Act 1994. (Just for analogous purposes)
Generally, procuring an offence implies bringing about, instigating a crime i.e. setting out to see that it happens and taking the appropriate steps to produce that happening. See Procurement in Dictionary of Law; L.B Curzon 6 ed. 335. In Blacks Law Dictionary procurement also means the act of persuading or inviting another especially a woman or child to have illicit sexual intercourse procure. Further elucidation of procurement is given in Section 223 of the Criminal Code Act which enacts thus:
Any person who
(1) Procures a girl or woman who is under the age of eighteen years to have unlawful carnal connection with any other person or persons either in Nigeria or elsewhere, or
(2) Procures a woman or girl to become a common prostitute either in Nigeria or elsewhere; or
(3) Procures a woman or girl to leave Nigeria with intent that she may become an inmate of a brothel elsewhere; or
(4) Procures a woman or girl to leave her usual place or abode in Nigeria, with intent that she may, for the purposes of prostitution, become an inmate of a brothel either in Nigeria or elsewhere,
Is guilty of a misdemeanor and is liable to imprisonment for two years.
If, as rendered in Blacks dictionary, procurement involves the act of persuading or inviting another especially a woman or child for the purpose of sexual activity either in Nigeria or elsewhere it can then be deduced that the essential elements would be any act of persuasion whether subtle or coercive to persuade a woman to leave her location in Nigeria and proceed abroad by any means for the purpose of prostitution. It would appear, it seems to me, that the subjective mental condition of the woman in question is immaterial. What needs be proved is the procurement for purposes of prostitution and in respect of counts two (2) organizing or arranging the foreign travel.
Against this background of the meaning of procurement and its verb procure, what did the appellant do to come within the prohibition of the Act.
There is evidence in the record (See Page 84-88) that the appellants husband first approached the PW1 Adesina Opeyemi Abidemi PW1 and intimated her of the opportunity to travel abroad and requested her Pw1 to see his wife the appellant for details of the arrangement. The appellant received the PW1 whom she knew very well and arranged a meeting with her sister Tayo (Odumayo Fashola) there was evidence that appellant after an agreement was reached to travel went to the shop of PW1 to pack her property. There is also evidence that the initial discussion with the DW1 was at the behest and instruction of the appellant.
There was evidence from the PW1 that DW1 husband of the appellant introduced and persuaded her on the trip and urged her to see the appellant for details. There is evidence that it was appellant who called her sister Tayo (Odunayo Fashola) to request her to come for a meeting with PW1 Adesina Opeyemi Abidemi. The meeting was held between the appellant and the PW1 in the house of Yemisi sister of the appellant. of the relationship between PW1 and the appellant and her husband the trial Court said
There is evidence from 2nd Defendant that she had a close relationship with the Plaintiff witness 1. She testified The Plaintiff witness used to come and visit me and we used to play together. Sometimes when my sister Odunayo Fashola calls me the plaintiff witness I used to be around
The 1st Defendants corroborate this fact thus:-
the plaintiff witness 1 is my wifes friend (2nd Defendant) I have known the plaintiff witness 1 and my wife to be friends since 2012. The plaintiff witness 1 usually visit my wife at home.
This in fact tallies with plaintiff witness 1s oral testimony that she was no stranger to both 1st and 2nd Defendant so she trusted them.
The plaintiff witness 1 testified that she was shown picture of Odunayo (Tayo) in company of the pupils she teaches at Cairo and this influence her to perceive as true that the said Odunayo will be able to secure for her a teaching job since she (plaintiff witness 1) is an NCE holder.
Her statement at page 153 of record where appellant said:
I told Abidemi Adesina (Plaintiff witness 1) about my sister who resides in Malta in Europe, I told her that my sister Odunayo Fashola works in a day care school where she takes care of children. Abidemi was now interested and asked me how my sister got to Malta.
I find it more believable and I do believe the evidence of plaintiff witness 1 that she was convinced by the 1st and 2nd Defendant that better days were ahead should she embark on this foreign travel.
There was evidence, cogent evidence that the plaintiff witness 1 through an arrangement met the 2nd Defendants sister Odunayo at 2nd Defendants house.
Resolution
There is therefore clear evidence that PW1 Abidemi Opeyemi Adesina was procured by the appellant in concert with the other accused, to proceed to Libya on the pre that Odunayo Fashola would secure a teaching job for her in Libya. Armed with her NCE Certificate, PW1 agreed and yielded to the persuation that resulted in the dangerous voyage to Libya.
The trial Judge was therefore right in drawing from the evidence the inescapable conclusion that appellant along with the other accused, procured Abidemi Opeyemi Adesina to be used for prostitution in Libya.
The suggested inconsistencies in the account of the evidence of PW1 have no relevance to the issue or question of procurement of the PW1 which is the main essence of the charges.
The ordeal of the PW1 Abidemi Opeyemi Adesina is so terrible and inhuman as to deserve the most scathing condemnation by all. It is worse than slavery of the medieval centuries and more education against the horrors of such trafficking ought to be intensified by the authorities concerned.
In all, the trial judge was right in the evaluation and assessment of the evidence led in the case and came to a proper decision on the facts and law.
In the end, I see no merit in the appeal. I accordingly dismiss it.
JIMI OLUKAYODE BADA, J.C.A.: I had the privilege of a preview of the lead Judgment of my learned brother NONYEREM OKORONKWO, JCA, just delivered.
I agree with the reasoning and conclusion therein.
Having also read the record of Appeal and the briefs of argument filed and exchanged by the parties, I assert my concurrence that the appeal lacks merit. The appeal is also dismissed by me.
The Judgment of the lower Court in charge No. FHC/IB/8C/2016 delivered on the 26th day of September 2016 is hereby affirmed.
ABUBAKAR MAHMUD TALBA, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother NONYEREM OKORONKWO, JCA just delivered. I agree entirely with the reasoning and conclusion reached.
From the evidence before the lower Court, the learned trial Judge was right in drawing from evidence the inescapable conclusion that the Appellant along with others procured Abidemi Opeyemi Adesina to be used for prostitution in Libya. Anyone who for the sake of lucre,deliberately sold his fellow human being into servitude either within or outside the country deserves nothing but outright condemnation. From the shores of their native land, the helpless victims are transported (as in the horrible epoch of slave trade in the olden days) to a cold and pitiless world, a world with neither joy nor freedom. Therein they are forced to contend with very inhuman and degrading conditions and challenges such as prostitution and forced labour. Such culprits are glorified vultures in the image of human beings.
The Appellant has failed to show any reason why we should upturn the decision of the lower Court. The appeal lacks merit and it is accordingly dismissed. The judgment of the lower Court delivered on the 26th September, 2016 is hereby affirmed.
Appearances:
Bamidele Ibironke Esq.For Appellant(s)
S.A. Langyi Esq.For Respondent(s)
