UCHENNA ALFRED v. THE STATE (2017)

UCHENNA ALFRED v. THE STATE

(2017)LCN/10161(CA)

In The Court of Appeal of Nigeria

On Monday, the 3rd day of July, 2017

CA/OW/82C/2015

RATIO

MORAL: MEANING OF THE WORD MORAL

The word moral means, according to Cambridge English Dictionary “relating to the standards of good or bad behaviors, fairness, honesty that each person believes in rather than to laws.” The opposite of it is immoral. PER TUNDE OYEBANJI AWOTOYE, J.C.A.

IMMORALITY: THE EFFECT OF THE FAILURE OF THE PROSECUTION TO PROVE THE IMMORALITY UNDER SECTION 21 OF TRAFFICKING IN PERSONS (PROHIBITION) LAW ENFORCEMENT AND ADMINISTRATION ACT 2003

The immorality in Section 21 of the Act must be proved by the prosecution otherwise the conviction of the appellant on the offence must be set aside. See OMOUGA v. THE STATE (2006) 14 NWLR (Pt. 1000) 532; UBANI v. THE STATE (2003) 16 NSCQR 265. In the circumstance, the conviction and sentence of the appellant on Counts 3 and 6 of the Charge cannot stand. PER TUNDE OYEBANJI AWOTOYE, J.C.A.

SETTING ASIDE OF JUDGMENT: WHETHER THE DECISION OF THE LOWER COURT WILL BE SET ASIDE ON THE GROUND THAT JUDGE GAVE WRONG REASONS FOR THE DECISION

An Appeal Court will not set aside the decision of a lower Court which is right merely because the learned trial Judge gave wrong reasons for the decision. See AYENI v. SOWEMIMO (1982) 5 SC.60 at 74. UBA LTD v. ACHORU (1990) NWLR (Pt. 156) 254. PER TUNDE OYEBANJI AWOTOYE, J.C.A.

INTERFERENCE WITH THE FINDINGS OF THE LOWER COURT: WHETHER THE APPELLATE COURT WILL DISTURB THE FINDINGS OF THE LOWER COURT THAT ARE NOT PERVERSE

I am of the considered view that the findings of facts of the lower Court are not perverse and cannot be disturbed by this Court. See KAMALU & ORS v. UMUNNA & ORS (1997) 5NWLR (Pt. 505); ALAO v. STATE (2015) LPELR-SC.237/2011. The findings of fact must therefore be allowed to stand. PER TUNDE OYEBANJI AWOTOYE, J.C.A.

PUNISHMENT/SENTENCING: THE POSITION OF THE LAW ON THE DISCRETIONARY POWERS OF THE COURT TO IMPOSE PUNISHMENT

A trial judge has discretion in imposing the type or extent of punishment provided by law on a convict. The discretion must however be exercised judiciously and judicially. See OKECHUKWU v. STATE (1993) 9 NWLR (Pt. 315) 78 AT 94-95, UDOYE v. THE STATE (1967) NMLR 197. However, a trial Judge must state the factors that influenced his decision. See IORTIM v. THE STATE (1997) 2 NWLR (Pt. 490) PAGE 771. Failure to give the reasons for the sentence will however not vitiate the conviction. It puts the appellate Court in a position to review the sentence if excessive or inadequate.

I have examined the sentence imposed by the learned trial Judge, I must state that whether to make the sentence concurrent or consecutive is discretion of the learned trial Judge. He has exercised the discretion judicially and judiciously. It is a deterrence sentence in this case, hence it is consecutive. Furthermore, the decision to impose maximum punishment is also the discretion of the learned trial judge which he, in my respective view has properly exercised. PER TUNDE OYEBANJI AWOTOYE, J.C.A.

JUSTICES

MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria

Between

UCHENNA ALFRED Appellant(s)

AND

THE STATE Respondent(s)

TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal of the accused in charge No: A/42C/2009; EKWUTOSI OGOLO (DECEASED) & 5 ORS. The appeal is against the judgment of Abia State High Court sitting at Aba delivered on 16/4/2014.

The charge against the accused persons at the lower court read thus.
?AT THE SESSION HOLDEN AT ABA on the . Day of .. 2010, the Court is informed by the Attorney-General of Abia State on behalf of the State that Ekwutosi Ogolo, Chinyere Ahamefula, Uchenna Alfred, Chika Eze, Goodluck Olewe and Akudo Alozie are charged with following offences:-
STATEMENT OF OFFENCE
Conspiracy, contrary to Section 516 of the Criminal Code, Cap. 30 vol. II Laws of Eastern Nigeria 1963, as applicable in Abia State.
PARTICULARS OF OFFENCE
Ekwutosi Ogolo, Chinyere Ahamefula, Uchenna Alfred and Chika Eze on or about the 27th day of July 2009 at Glorious Children?s Academy Aba in Aba Judicial Division conspired to Kidnap one little Master Light Ozioma David.
STATEMENT OF OFFENCE

Kidnapping from guardianship, contrary to Section 19(1)(a) of the Trafficking in Persons (Prohibition) Law Enforcement and Administration Act 2003 as applicable in Abia State.
PARTICULARS OF OFFENCE
Ekwutosi Ogolo, Chinyere Ahamefula, Uchenna Alfred, Chika Eze on or about the 27th day of July 2009 at Glorious Children?s Academy Aba in Aba Judicial Division did take or entice one little master Light Ozioma David out of the lawful custody of his guardian without his consent.
STATEMENT OF OFFENCE
Buying or selling a person for a purpose, contrary to Section 21 of the Trafficking in Persons (Prohibition) Law Enforcement and Administration Act 2003 as applicable in Abia State.
PARTICULARS OF OFFENCE
Ekwutosi Ogolo, Chinyere Ahamefula, Uchenna Alfred and Chika Eze on or about the 27th day of July 2009 at Glorious Children?s Academy Aba in Aba Judicial Division did sell, buy, let or otherwise obtain possession or dispose off one little Master Light Ozioma David with intent that he would be used for immoral or knowing it to be likely that he would be used for such purpose.
STATEMENT OF OFFENCE

Conspiracy, contrary to Section 516 of the Criminal Code Cap.30 vol. II Law of Eastern Nigeria 1963 as applicable in Abia State.
PARTICULARS OF OFFENCE
Ekwutosi Ogolo, Chinyere Ahamefula, Uchnna Alfred, Goodluck Olewe and Akudo Alozie on or about the 21st day of July 2009 at Divine Power Deliverance Ministry Aba in Aba Judicial Division conspired to kidnap one little Master Chukwuemerie Ositadinma.
STATEMENT OF OFFENCE
Kidnapping from guardianship, contrary to Section 19(1)(a) of the Trafficking in Persons (Prohibition) Law Enforcement and Administration Act (2003) as applicable in Abia State.
PARTICULARS OF OFFENCE Ekwutosi Ogolo, Chinyere Ahamefula, Uchnna Alfred, Goodluck Olewe and Akudo Alozie on or about 21st day of July 2009 at Divine Power Deliverance Ministry Aba in Aba Judicial Division did take or entice one little Master Chukwuemerie Ositadinma out of the Lawful Custody of his guardian without his consent.
STATEMENT OF OFFENCE
Buying or selling a person for a purpose, contrary to Section 21 of the Trafficking in Persons (Prohibition) Law Enforcement and Administration Act 2003 as applicable in Abia

State.
PARTICULARS OF OFFENCE
Ekwutosi Ogolo, Chinyere Ahamefula, Uchenna Alfred and Chika Eze on or about the 27th day of July 2009 at Glorious Children?s Academy Aba in Aba Judicial Division did sell, buy, let or otherwise obtain possession or dispose off one little Master Light Ozioma David with intent that he would be used for immoral or knowing it to be likely that he would be used for such purpose.”

The charge was read and explained to accused persons. Each pleaded not guilty to each of the counts in the charge.

Hearing later commenced. After hearing the parties the learned trial Judge found as follows with respect to the 3rd accused (now appellant):
?This brings me to the 3rd Accused who in actual fact sold the child Light David to the 4th Accused. Evidence abound that he was the owner of Chim Motherless Babies Home from where he sold the stolen child to 4th Accused. He admitted that the 1st and 2nd Accused persons brought the stolen child to him. After selling the child to 4th Accused he took to his heels when he saw the 4th Accused and PW3 and others coming to Chim Motherless Babies Home to arrest him. The

2nd Accused was identified by 4th Accused as one of his staff at the Chim?s Motherless babies Home. He conspired with 1st and 2nd Accused to con 4th Accused to commit the offence and did commit the offence. PW5 the I.P.O. at the State C.I.D Umuahia testified that while making their statement the 1st, 2nd and 3rd Accused persons mentioned another boy they stole and said it was 3rd Accused that connected them to the 5th accused who knew where to find the 6th Accused and her father who bought the 2nd boy Chiemerie. From the evidence against the 3rd Accused, I indeed find as a fact that he was also involved in the conspiracy and the kidnapping and selling of the 2nd boy Chukwuemrie. See also the evidence of PW1 and PW3 who heard him mention the 2nd boy while making his statement at the States C.I.D. Umuahia.?

His lordship consequently found the 3rd accused guilty of each of counts 1-6 of the charge and convicted him accordingly.

Aggrieved by the decision, the appellant filed 15 grounds Notice of Appeal on 7/7/14. The grounds of appeal are as follows:-
?1. The learned Trial Judge erred in law by sentencing the Appellant to

fourteen (14) years imprisonment for conspiracy contrary to Section 516 of the Criminal Code Cap 30 Vol. 11 Laws of Eastern Nigeria 1963 as applicable in Abia when the maximum sentence for conspiracy is seven years imprisonment.
PARTICULARS OF ERROR
(a) Section 516 of the Criminal Code Cap 30 Vol. II Laws of Eastern Nigeria 1963 as applicable in Abia State, the section of which the Appellant was charged on the count 1, expressly provides that the maximum punishment for conspiracy is seven years.
(b) The trial Court does not have the jurisdiction to sentence the Appellant to a term of imprisonment longer than the term provided by the enabling law.
2. The Learned Trial Judge erred in law by finding the Appellant guilty of conspiracy to kidnap in count 1 of the charge when there is no evidence showing that the Appellant conspired with any person to kidnap one MASTER LIGHT OZIOMA DAVID.
PARTICULARS OF ERROR
(a) The evidence of the witnesses especially the 1st and 2nd Accused persons was that they had already kidnapped MASTER LIGHT OZIOMA DAVID before bringing him to the Appellant.
(b) There is no evidence that the

Appellant conspired or had any agreement with any person to kidnap MASTER LIGHT OZIOMA DAVID.
(c) The evidence of the witnesses was that the Appellant had nothing to do with the kidnap.
3. The learned Trial Judge erred in law by holding that the Appellant is guilty of kidnapping from guardianship, contrary to Section 19(1)a of the Trafficking in Persons (Prohibition) Law Enforcement and Administration Act 2003 when there is no evidence linking the Appellant to the kidnapping of MASTER LIGHT OZIOMA DAVID.
PARTICULARS OF ERROR
(a) The evidence of the 1st and 2nd Accused person was that they had already kidnapped MASTER LIGHT OZIOMA DAVID from Glorious Children?s Academy Aba before bringing him to the Appellant.
(b) There is no evidence showing that the Appellant participated in the kidnapping of MASTER LIGHT OZIOMA DAVID.
4. The learned Trial Judge erred in law by finding Appellant guilty of selling, buying, letting or otherwise obtaining possession or disposing one little MASTER LIGHT OZIOMA DAVID with intent that he would be used for an immoral purpose or knowing it to be likely that he would be used for such

purpose, contrary to Section 21 of the Trafficking in Persons (Prohibition) Law Enforcement and Administration Act 2003 (Count 3) when the elements of the offence were not proven.
PARTICULARS OF ERROR
(a) The Prosecution did not give any evidence to the purpose for which he purported selling or disposal was made for the Court to determine whether it was for an immoral purpose or not.
(b) The immoral purpose as required by the law was not proven or laid in evidence.
(c) All the elements of the offence as required in the law were not established.
(d) The learned Trial Judge was not supposed to have relied on the evidence of the D.W 4 a co-accused person against the 3rd accused.
(e) The learned Trial Judge did not state which particular act the appellant was found guilty of, of doing, that is, whether it was selling, letting, buying or letting of the child.
5. Learned Trial Judge erred in law by finding the Appellant guilty of conspiracy to kidnap one MASTER CHUKWUEMERIE OSITADINMA when there is no evidence showing that Appellant conspired with any person or any of the co-accused persons to kidnap MASTER CHUKWUEMERIE

OSITADINMA.
PARTICULARS OF ERROR
(a) There is no evidence from any of the witnesses that the Appellant conspired with any person to kidnap CHUKWUEMERIE OSITADINMA.
(b) The trial Court misconstrued and misinterpreted the evidence of the Appellant and the witnesses as to the role played by the Appellant in helping the police to locate CHUKWUEMERIE OSITADINMA from his abductors.
6. The Trial Judge erred in sentencing the Appellant to Ten (10) years imprisonment for conspiracy to kidnap one little CHUKWUEMERIE OSITADINMA when Section of the Criminal Code Cap 30 vol. 11 law of Eastern Nigeria 1963 provides for a maximum sentence of seven years.
PARTICULARS OF ERROR
(a) The Trial Jude has no jurisdiction to impose a sentence for conspiracy more than the length provided by the law.
(b) Section 516 of the Criminal Code makes the maximum sentence for conspiracy to be seven years.
7. The Trial Judge erred in law when it found the Appellant guilty of kidnapping CHUKWUEMERIE OSITADINMA out of the lawful custody of his guardian contrary to Section 19 (1)a of the Trafficking of Persons (Prohibition) Law Enforcement and

Administration Act (2003) when there was no cogent evidence from any of the witnesses that the Appellant participated in the kidnap of CHUKWUEMERIE OSITADINMA.
PARTICULARS OF ERROR
(a) There is no evidence proving that the Appellant participated in the kidnap of CHUKWUEMERIE OSITADINMA.
(b) None of the eye-witnesses testified that the Appellant participated in the kidnap of CHUKWUEMERIE OSITADINMA.
8. The trial judge erred in law by holding that the Appellant is guilty of selling, buying, letting or otherwise obtaining possession or disposing of one little CHUKWUEMERIE OSITADINMA with intent that he would be used to for an immoral purpose or knowing it to be likely that he would be used for such purpose.
PARTICULARS OF ERROR
(a) The Trial Judge did not state or show which particular act that the Appellant was convicted of doing. The Judge did not show whether it was selling, buying, letting, obtaining possession of, or whether it is disposing little CHUKWUEMERIE OSITADINMA that the Appellant was convicted of.
(b) The judgment did not relate the evidence to the charge.
(c) There is no evidence as to the

immoral purpose which the purported act led to or that the purported act on the child would be used for.
(d) The judgment of the trial Court did not tie the evidence given in the matter to the elements of the charge as the elements of the charge were not proven.
9. The Trial Judge erred in law when he failed to consider the defence of the Appellant.
PARTICULARS OF ERROR
(a) The trial Judge only stated the testimony of the Appellant without considering the defence of the appellant.
(b) The Judge did not analyze the defence of the Appellant to see whether he has a cogent defence.
10. The trial judge erred in law when he accepted the evidence of the D.W.4 against the appellant despite the fact that the D.W.4 was a co-accused person with the appellant and such evidence of the co-accused was used to convict the Appellant.
PARTICULARS OF ERROR
(a) The D.W.4 is a co-accused person whose evidence ought not to be used to convict the Appellant.
(b) The D.W.4 expressed anger and ill-feeling against the Appellant. She even called the Appellant a kidnapper.
(c) The trial Judge accepted the evidence of the

4th Accused against the Appellant that the Appellant is the owner of Chims motherless Babies home without any other fact corroborating the allegation.
(d) The trial Judge on the evidence of the 4th Accused against the Appellant in every material particular without taking into consideration that she is a co-accused person with the Appellant whose evidence is not admissible to prove the guilt of the Appellant without any corroboration of the evidence.
11. The trial Judge erred in law when he admitted the statement of the Appellant as Exhibits despite the fact that the Appellant stated that the statement was not voluntary without conducting a trial within a trial to determine whether the statement (ID5) was made voluntarily by the Appellant or not.
PARTICULARS OF ERROR
(a) There is no provision of the law for the admission of a document as ID.
(b) The trial Judge should have conducted a trial within trial before admitting the document marked as ID5.
12. The learned Trial Judge misdirected himself in law by failing to exercise his discretion appropriately when he ordered that all the sentences imposed on the Appellant shall

run consecutively and not concurrently without stating grounds for imposing such hard sentences.
PARTICULARS OF ERROR
(a) The discretion of the Judge must be exercised judiciously and judicially.
(b) The trial Judge exercised his discretion in a manner that would occasion an exceptional hardship on the Appellant by ordering that the sentence shall run consecutively.
(c) The trial Judge failed to state his reason for exercising his discretion in the manner he did in ordering consecutive service of the sentence instead of concurrent services.
13. The trial Judge erred in law by failing to exercise his discretion properly when he sentenced the Appellant to the maximum sentence of 14 years imprisonment over the offences in counts 2, 3, 5 and 6 of the charge without stating the reason for the maximum sentence.
PARTICULARS OF ERROR
(a) The Judgment of the trial Judge did not disclose the reasons for the maximum sentence imposed on charge 2, 3, 5 and 6.
(b) The trial judge should have considered the allocates of the Appellant.
(c) The fact that the Appellant is a first-time offender should have actuated the mind

of the trial judge in giving a shorter length of sentence to the appellant.
(d) The defence of the Appellant to the effect that he took steps to ensure that it was the parents of MASTER LIGHT OZIOMA DAVID that was putting him up for adoption should have actuated the mind of the trial Judge in awarding a lighter sentence.
14. The whole decision is against the evidence led in the proceeding.
PARTICULARS
(a) There was no evidence to sustain the conviction.
15. The learned trial judge erred in law by failing to make a finding on facts and law on each of the counts on the charge before convicting the Appellant on each count.
(a) the trial Judge has a duty to consider the evidence in support of each count and tie the evidence to the count before finding the Appellant guilty of each count. Other grounds of Appeal shall be filed upon the receipt of the Record of proceeding which has already been applied for.

The record of appeal was transmitted to this Court on 22/5/2015 but deemed transmitted on 22/5/2016.
Parties subsequently filed and exchanged briefs of argument.

?The appellant?s brief of argument

was prepared by Chief Gabriel Emperor Ogbonna, his counsel, and filed on 26/6/15.

The Respondent?s brief of argument was settled by U. E Ndukwe, Chief State Counsel Abia State and filed on 22/8/2016 but deemed filed on 13/2/2017.

?Learned counsel for the appellant later filed appellant?s Reply brief on points of law on 13/2/2017.
Learned appellant?s counsel as well as Respondent?s counsel formulated 15 issues for determination. The issues are:-
“1. Whether the trial judge was right to have sentenced the Appellant to an imprisonment of 14 years for the offence of Conspiracy contrary to Section 516 of the Criminal Code Cap. 30. 11 Laws of Eastern Nigeria 1963 when the maximum sentence for conspiracy is seven years.
2. Whether by the evidence adduced in the case the trial Court was right in finding the Appellant guilty of Conspiracy to kidnap Master Light Ozioma David.
3. Whether the trial Court was right in finding the appellant guilty of kidnapping Master Light Ozioma David from guardianship.
4. Whether the trial Court was right in finding the appellant guilty of selling, buying, letting

or otherwise obtain possession or disposing Master Light Ozioma David with intent that he would be used for an immoral purpose or knowing it to be likely that he would be used for such purpose.
5. Whether the learned trial judge was right in finding the appellant guilty of conspiracy to kidnap Master Chukwuemerie Ositadinma.
6. Whether the trial judge was right in sentencing the Appellant to ten years imprisonment for conspiracy to kidnap Master Chukwuemerie when Section 516 of the Criminal Code Laws of Eastern Nigeria provided for a maximum period of seven years.
7. Whether the trial Judge was right to have found the appellant guilty of kidnapping Master Chukwuemerie Ositadinma out of the lawful custody of his guardian.
8. Whether the trial judge was right to have held the Appellant guilty of selling, buying, letting or otherwise obtaining possession or disposing one Master Chukwuemerie Ositadinma with intent that he will be used for immoral purpose or to be likely that he would be used for such purpose, based on the evidence adduced.
9. Whether the trial judge considered the defense of the appellant.
10. Whether the trial judge

was right in accepting the evidence of the D.W.4 against the Appellant despite the fact that D.W.4 was a co-accused person with the appellant.
11. Whether the trial judge was right to have admitted the statement of the Appellant as Exhibit despite the fact that the Appellant stated the statement was not voluntary, without the trial Court conducting a trial within a trial to determine whether the statement was made voluntarily or not by the Appellant.
12. Whether the trial Judge misdirected himself in Law by failing to exercise his discretion appropriately when he ordered that all the sentence imposed on the appellant shall run consecutively and not concurrently without stating grounds for imposing such a hard sentence.
13. Whether the trial Judge erred in law by failing to exercise his discretion properly when he sentenced the appellant to the maximum sentence of 14 years imprisonment over the offence in counts 1, 2, 3, 5 and 6 without stating the reasons for the maximum sentences.
14. Whether the whole decision is against the evidence led in the proceeding.
15. Whether the learned trial Judge made a finding of fact and law on each of

the counts on the charge before convicting the appellant on each count.?

After carefully perusing the issues, I am of the humble view that they can be reframed and condensed into two issues to wit:-
1. Whether the sentencing of the appellant was right in law.
2. Whether the judgment of the lower Court was right having regard to the evidence before the Court.

I shall determine this appeal in the light of the above two issues

SUBMISSIONS OF COUNSEL AND RESOLUTION OF ISSUES
Chief Ogbonna for the appellant submitted that the learned trial Judge erred in law to have sentenced the appellant to a term of 14 years for an offence of conspiracy under the Criminal Code. This submission affects counts 1 and 4 of the charge. I must state right away that this submission is well taken.

?Also, learned counsel for the appellant contended that the learned trial Judge erred to have found the appellant guilty of selling, buying, letting or otherwise obtaining possession or disposing Master Light Ozioma David with intent that he would be used for an immoral purpose or knowing it likely that he would be so used. He

submitted that the learned trial Judge failed to specify whether the appellant was convicted of selling or buying or disposing or obtain possession of Master Light Ozioma. This he submitted was fatal to the charge and should lead to acquittal. He cited AIGBE v. THE STATE (1976) MNLR 184; YESUFU v. I.G.P. (1960) L.L.R. 140.

Learned counsel submitted further that the prosecution did not prove a vital ingredient of the offence i.e. purpose of buying or selling or letting and this he argued was also fatal to the case. He cited UMANI v. STATE (1988) 1 NWLR (Pt. 70) 274.

Learned Respondents counsel on the issue referred extensively to the evidence adduced before the lower Court and submitted that the gist of the offence of conspiracy lies in the agreement with a criminal purpose that was common to all that conspired. He relied on CLARK & ANOR v. THE STATE (1984) 4 NWLR (Pt. 35) 381 at 395, and HARUNA v. THE STATE (1972) 8/9 SC 72.

Learned counsel further relied on the confessional statement made by the appellant which was accepted as exhibit. He submitted relying on OJI v. F.R.N. (2013) ALL FWLR (Pt. 668) 920 at 924 that confessional

statement had been held to be strongest possible evidence. He contended that all the ingredients of the offence in Section 21 of the Trafficking in Persons (Prohibition) Law Enforcement & Administration Act 2003 had been proved by the prosecution. He posited that the confessional statement of the appellant was corroborated by the prosecution witnesses. He urged the Court to dismiss the appeal and uphold the judgment of the lower Court.

The 3rd accused person faced a 6 count charge including two counts of conspiracy to commit a felony under S. 516 of the Criminal Code. Punishment in respect of the two counts contrary to the provision of S. 516 of the Criminal Code is 7 years.

Section 516 of the Criminal Code reads as follows:-
?Any person who conspired with another to commit any felony or to do any act in any part of the world which if done in Nigeria would be a felony and which is an offence under the law in force in the place where it is proposed to be done is guilty of a felony and is liable if no other punishment is provided to imprisonment for seven years, or if the greatest imprisonment to which a person convicted of the

felony in question is liable is less than imprisonment for seven years then to such lesser punishment.?

Furthermore, the appellant was convicted and sentenced for an offence under Section 21 of the Trafficking in Persons (Prohibition) Law Enforcement and Administration Act 2003 as applicable in Abia State. Section 21 of the said Act reads thus:
?Any person who buys, sells, hire, lets or otherwise obtains possession or disposes of any person under the age of eighteen years with intent that such person be employed or used for immoral purposes or knowing it to be likely that such person will be employed or used for any such purposes commits an offence and is liable on conviction to imprisonment for fourteen years without the option of a fine.?
I am in full agreement with the submission of learned counsel for the appellant that the prosecution failed to prove a vital ingredient of the offence under Section 21 of the Act to wit the purpose of the buying or selling, hiring, letting or otherwise obtaining possession or disposing of any person under the age of eighteen years.
?The said purpose to be proved must be immoral. The word moral

means, according to Cambridge English Dictionary ?relating to the standards of good or bad behaviors, fairness, honesty that each person believes in rather than to laws? the opposite of it is immoral.
The immorality in Section 21 of the Act must be proved by the prosecution otherwise the conviction of the appellant on the offence must be set aside. See OMOUGA v. THE STATE (2006) 14 NWLR (Pt. 1000) 532; UBANI v. THE STATE (2003) 16 NSCQR 265. In the circumstance, the conviction and sentence of the appellant on Counts 3 and 6 of the Charge cannot stand.

To the above extent, I resolve issue 1 in favour of the appellant.

ISSUE NO: 2
Whether the judgment of the lower Court was right having regard to the evidence before the Court.

The contention of the counsel for the appellant was that the judgment was wrong. He argued that the offence of conspiracy was not proved. He relied on ATUMA v. THE STATE (2006) ALL FWLR (Pt. 318); ABDULLAHI v. STATE (2008) 17 NWLR (Pt. 1115) 203. He submitted further that there was no evidence linking the appellant with the kidnapping of Master Light Ozioma and Master Chukwuemerie

Ositadinma.

Learned counsel further argued that the trial Judge failed to consider the defence of the appellant. He relied on AKPABIO v. STATE (1994) 7 NWLR (Pt. 359) 635 at 671.

In another argument, learned appellant?s counsel contended that the learned trial Judge was wrong in accepting the evidence of DW4 against the appellant. He cited OZAKI v. STATE (1990) NWLR 80, 83. He also argued that it was wrong of the trial Court to have admitted the purported statement of the appellant as exhibit despite it having been retracted by the appellant.

He further posited that the learned trial Judge erred when he did not state the reason for imposing consecutive sentences on the appellant and for imposing maximum sentence without reason on counts 2-6 of the charge.

Chief Ogbonna for the appellant further submitted that the whole decision was against the weight of evidence and that the learned trial Judge failed to make findings of the charge.

Earlier on, I had reviewed the submission of the respondent’s counsel in reply to the argument of counsel for the appellant. An Appeal Court will not set aside the decision of a lower

Court which is right merely because the learned trial Judge gave wrong reasons for the decision. See AYENI v. SOWEMIMO (1982) 5 SC.60 at 74. UBA LTD v. ACHORU (1990) NWLR (Pt. 156) 254.

I have deeply considered the evidence adduced on both sides vis–vis the submission of learned counsel.

In reviewing the evidence before the lower Court, I intend to juxtapose the evidence given in open Court by the key witnesses with the evidence given by the appellant himself in open Court.

P.W3, Kelvin Ogbonna was the key witness at the lower Court, for the prosecution. He gave evidence inter alia thus:-
?I know the accused persons in the dock. I remember the 26/7/09. On that date I came down to Aba from Lagos. I was staying with my in-law Pastor David Mark. Then on the 26/7/09 Light and his bothers went for graduation at Onyem Street by Obohia, Aba. I have forgotten the name of the place they went for graduation. At about 5.00pm Light brothers Emmanuel and another returned home and I asked them where Light was but Emmanuel asked me if he was not yet back and I said no. Then I sent Emmauel back to go and look for him. He later

returned and said that he couldn?t find him. I and Light?s parents David Mark and Felicia went to look for Light till about 10.00pm but we did not see him. We returned home and started praying. Then in the morning David Mark went to the CPS Aba to make a statement. He made an entry there and then went to NTA Aba. We continued looking for Light for up to 4 days. I remember the 29/7/09. On that date I was returning from the new market and on getting to Amaichi hall, I saw Chika the 4th accused with Light ? the missing boy and by then they had crossed the main road. And were entering a street beside Amaichi Hall. Before I could come down from the bus I was in I couldn?t see them again. I then shouted inside the bus that the child the 5th accused was carrying was a missing child and we have been looking for him. One of the women in the bus told me that she knew the 4th accused. She then told me that on Saturday I should come to Nkwor Ngwa at Obohia that the 4th accused used to come there to buy clothes from her. She said that there was a day the 4th accused came to her shed with Light and when she asked her if the child was her own. On

Saturday I went to Nkwor Ngwa to the woman?s shed and stayed near the macro hospital were the woman asked me to stay. I didn?t know the name of the woman, I waited there till 5.00pm and then saw the 4th accused coming and I then asked 4th accused about the child she was with which wasn?t her child and she admitted it. I then asked her about the child and she said that the child was in her house. I then followed her to her house. When we got to her house, I found that she locked Light and other children inside her house. I saw about five children and a house maid. She knocked at her door and the maid opened the door. I followed her immediately inside and saw Light besides the door crying. Light saw me and embraced me. I then phoned Felicia, Light?s mother on the phone and told her that I had seen Light. The said Felicia then came to 4th accused?s house and carried her son Light. I then asked 4th accused how Light came to be in her house and she said she bought him from the 3rd accused person. I took 4th accused to 3rd accused house. On reaching there, 3rd accused saw us and ran away. I ran after him and held him. 3rd

accused?s house is at Uratta Road in Aba. When I caught 3rd accused I brought him back to 3rd accused?s shed. People around 3rd accused?s shed then started beating me. 3rd accused sells drinks in his shed. A vigilante group passing by and seeing a crowd of people came there and took 4th accused, 3rd accused and myself to a filling Station called Frediyke Filling Station and asked me what happened and I told them. The people I call vigilante group are called Bakassi people. After narrating to them what happened, the Bakassi took 3rd and 4th accused persons to their office at Ariaria and asked me to go to the CPS where I made an entry and ask the police to come and take them away. I went home and in the night one of the Bakassi people called me on the phone and told me that they had arrested the other people 1st and 2nd accused persons who took Light from the Church. In the morning I reported to CPS and took the police to their head office at Ariaria. The police then took them to CPS one of them is Sgt. Akunaya. I made statement to the police. That is all.?

The appellant gave evidence as DW2. He gave evidence before the lower

Court inter alia thus:-
?I know the other accused persons. On the 21/7/09 the police arrested I and Chika Eze. They said that we stole a child. The name of the child is Master Light David. He is also called Light Ozioma David. There is a woman called Ekwutosi Ogolo (1st accused) and Chinyere Ahamefula (2nd Accused) came to my yard at Uratta and told me that they heard that father was dead. I confirmed that. I asked the 1st accused why she did not attend my father?s burial. My father?s name is Dr. Friday Izunna. 1st accused told me that she travelled and so could not come for the burial ceremony. I then asked her who the person she came with was. She replied that she was her sister. She said that they had a problem and so came to me. I asked her what the problem was and she said that one of their sisters delivered a baby outside wedlock and that their relations do not want that baby. That they want to kill the baby who they told me that they want to bring the baby to our house and keep her there, but I refused and said that my father who was running a child care centre now late. They pleaded with me to keep the child there so that their

elder brother will not kill the child. I told them that if they want me to keep the baby there they must bring the father and mother of the child and the elder brothers of the child to confirm that. They then brought one old man called Felix Eze and one lady as the mother of the child. The man asked me why I don?t want to help to take the child home that if anyone wants to adopt the child I would let them know and they will then bring the child and the parents to me. After some days I saw the 4th accused with another person called Orji. They then told me that they want to adopt the child and I told them that my father is no longer around and that nobody does the business again. I suggested that they go to the motherless home but they said that the procedure there is too much for them. I then told them that Ekwutosi and Chinyere and one man called Felix Eze had come to me with a child that I will call them on phone for them to discuss. I then called Chinyere Ahamefula and Ekwutosi and then brought the child. When they introduced them to Chika and Orji and told them to discuss with them to find out if the baby is genuine or not. The whole transaction was

done in my shop. After the discussion they said they have accepted to pay N250,000.00 for the baby. After that they left. Chinyere and Ekwutosi introduced Felix Eze as the father of Master Light. Felix Eze was arrested and detained in the police cell but after some days I did not see him again. The Abia State vigilante group arrested us before the police arrested us. It was while I was in the police cell that I heard about Master Chukwuemerie Ositadinma. It is not true that I was the one that gave 2nd accused the money for Master Light. When the vigilante group arrested us I told them that it was one Chinyere (2nd accused) that brought the child and they told them to take them to Chinyere. Chinyere confessed before the vigilante group that she is one that brought that child.?

And under cross-examination by GREG CHIKEZIE, the appellant said
?I knew Ekwutosi (1st accused) before this incident. I don?t know her because she was doing business with my father. I told the police in my statement that Felix Eze was shown to me as the father of Master Light. I told the police that I told 1st accused to bring the parents of the Master Light.

I did not tell the police in my statement of 2/8/09 that 2nd accused said that Master Light was the son of Prostitute who wanted to kill him. It?s not a notorious fact that I sell and buy children. It will surprise me to hear that 4th accused said I handed over Master Light to him personally. It is not true that I took Chika Eze to Chim motherless babies home which I claimed to be mine. It is not true that at the said Chim motherless babies home I introduced 2nd accused as my staff. The 4th accused paid the 2nd accused for Master Light. 2nd accused showed me N250,000.00 given to her by 4th accused. 2nd accused did not present the money to me because I am in charge. 2nd accused told me that she had settled with 4th accused and when I asked for how much she said N250,000.00, and gave N15,000.00 and asked me to hold it. She told me to use the money. I did not go with 4th accused to test the child for H.I.V. I took the Abia State Vigilante group to 2nd accused?s house. Yes I led the police to 5th accused house at Ogbor Hill to recover the other child called Chukwuemerie. The 4th accused is my sister and living close to you. I live at Uratta Ugwunagbo. 5th

accused was living at Ogbor Hill. I don?t know Abraham Alozie the father of the 6th accused in person. It is not true that I was the one that sold Master Chukwuemerie to Abraham Alozie. It is not true that the 5th accused directed the relations of Akudo Alozie to me and I sold Chukwuemerie to them. It is not true that in my statement of 8/8/09 I admitted selling Chukwemerie to Goodluck (5th accused). Mr. Orji and Mrs. Chika Eze came to me and told me that they wanted to adopt a baby but I told them that my father is late. The 5th accused never asked me if I have babies. When the police asked me how we will locate Eze, I told them that I knew the sister called Goodluck. I took the police to Goodluck (5th accused) and they arrested her. I never took the police to Eze?s house because it was through Goodluck that we will locate Eze. I don?t know about the purchase of Master Chukwuemerie. Later the child was recovered by the police. I only took the police to the house of Goodluck and no child was recovered from her that very day. I did not say in my statement of 8/8/09 that I took over my father business. It was 4th accused and Orji that came with

Bakassi to arrest me but I did not run away. As at the time Master light was handed over to 4th I did not know the house of 4th accused. Chika Eze (4th accused) told me that she got the child for her mother and father. I did not participate fully in the purchase of that child. I didn?t know whether the way I handed the transaction was the same way my father was handling his own transaction. If Ekwutosi (1st accused) said that she directed the relation of Chukwuemerie to me then she lied.?

The learned trial Judge heard and saw the witnesses and the appellant when they gave evidence. He subsequently made findings of fact. Having regard to the evidence on record as earlier quoted in this judgment. I find the findings of fact of the learned trial Judge unimpeachable. The appellant said the sum of N250,000 was paid for Light in his shop. He actively participated in the sale of the child. He was even given N15,000 out of the money. It was the appellant who led the prosecution to the 5th accused who knew where to find the 6th accused and her father who bought the Chiemerie. I am of the considered view that the findings of facts of the lower Court

are not perverse and cannot be disturbed by this Court. See KAMALU & ORS v. UMUNNA & ORS (1997) 5NWLR (Pt. 505); ALAO v. STATE (2015) LPELR-SC.237/2011. The findings of fact must therefore be allowed to stand.

What remains to be considered are the maximum sentences imposed by the learned trial Judge and the order that they should run consecutively.

and judiciously. It is a deterrence sentence in this case, hence it is consecutive. Furthermore, the decision to impose maximum punishment is also the discretion of the learned trial judge which he, in my respective view has properly exercised.

In the circumstance I hereby set aside the conviction and sentence of the appellant on each of counts 3 and 6 of the counts of the charge.

I shall review the sentences imposed on the appellant on each of counts 1 and 4 of the counts to 7 years instead of 14 years.

The sentences imposed on the appellant are hereby reviewed as follows:-
Count 1-7 years IHL. without option of fine.
Count 2 ? sentence of the lower Court is affirmed 14 years.
Count 3 ? Accused is discharged and acquitted.
Count 4 ? 7 years IHL. without option of fine.
Count 5 ? sentence is affirmed.
Count 6 ? Accused is discharged and acquitted.

Sentences are to run consecutively. Consecutiveness of the sentence is a deterrence having regard to the prevalence of crimes committed in the society. Subject to the above, the judgment of the Abia State High Court delivered

on 16/4/2014 and the conviction and sentence are hereby affirmed. Appeal succeeds in part.

MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: My learned brother, Hon. Justice Tunde Oyebamiji Awotoye, JCA obliged me with a draft of the judgment just delivered. I agree entirely with the reasoning which led to the conclusive conclusion that the instant appeal matter succeeds in part. It is thus, partly allowed by me too, to the extent which has been concisely and lucidly stated, in the lead judgment of my learned brother, Awotoye, JCA. I also abide by and endorse the consequential orders made in the said lead judgment.

ITA GEORGE MBABA, J.C.A.: I had the privilege of reading the draft of the lead judgment. I agree with the reasoning and conclusions of my learned brother, T. O. Awotoye, JCA as expressed in the lead judgment, and I also dismiss the appeal, except in respects of Count 3 and 6, wherein Appellant is discharged and acquitted therein.

?I abide by the consequential orders in the lead judgment.

Appearances

Appellant served on 29/6/2017.For Appellant

AND

V. E. Ndukwe CSC Abia StateFor Respondent