UKATU v. FRN (2020)

UKATU v. FRN

(2020)LCN/15710(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, September 25, 2020

CA/L/1243C/2018

Before Our Lordships:

Mohammed Lawal Garba Justice of the Court of Appeal

Joseph ShagbaorIkyegh Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Between

GIFT NONYE UKATU APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

RATIO:

THE BURDEN OF PROOF REMAINS ON THE PROSECUTION UNTIL IT HAS BEEN SATISFACTORILY DISCHARGED

In criminal proceedings before a Court of law, the burden of proof remains on the prosecution throughout the proceedings until it was satisfactorily discharged by credible, admissible and sufficient evidence beyond reasonable doubt as required by law in simple terms, proof beyond reasonable doubt required by law means that all the vital elements or ingredients constituting the alleged offence/s are established or proved by such evidence so as to conclusively and irresistibly show that it was the accused person/s and no other person/s that committed the offence/s and eliminate any other rational probabilities and reasonable doubt. MOHAMMED LAWAL GARBA, J.C.A.

EVERY PERSON WHO IS CHARGED IS PRESUMED TO BE INNOCENT UNTIL HE IS PROVED GUILTY

This position of the law is so because of the constitutional provisions in Section 36(5) of the now 1999 Constitution, that: –
“Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.”
Accordingly, a person charged with allegation/s of the commission of criminal or crime/s of whatever nature before a Court of law in Nigeria, is guaranteed and enjoys the presumption that he is innocent of such allegation/s untilhe is proved to guilty by the prosecution of the said allegation/s, to the satisfaction of the Court, beyond reasonable doubt. See, generally, Section 135(1) and of the Evidence Act, 2011, Onogudo v. State (1981) 5 SC 5, Iyaro v. State (1988) 1 NWLR (Pt. 69) 256; Aruna v. State (1990) 6 NWLR (Pt. 155) 125 @ 137; Alor v. State (1997) LPELR-432 (SC), (1997) 4 NWLR (Pt. 501) 511; Babuga v. State (1996) 7 NWLR (Pt. 460) 279; Ariche v. State (1993) 7 SCNJ 457, (1993) 6 NWLR (Pt. 302) 752; Hassan v. State (2001) 6 NWLR (Pt. 709) 286; Aigbadion v. State (2000) 4 SC (Pt. 1) 1, (2000) 7 NWLR (Pt. 666) 686; Igabele v. State (2006) 6 NWLR (Pt. 975) 100; Ochemaje v. State (2008) 136 NSCQR (Pt. 2) 826 @ 881, (2008) 15 NWLR (Pt. 1109) 57; Arogundade v. State (2009) All FWLR (Pt. 469) 409; (2009) 6 NWLR (Pt. 1136) 165; Akintade v. State (2012) LPELR-9470 (CA). MOHAMMED LAWAL GARBA, J.C.A.

TO PROVE BEYOND REASONABLE DOUBT DOES NOT MEAN PROOF BEYOND ALL SHADOW OF DOUBT

ATTAINING THE STANDARD OF PROOF THAT IS BEYOND REASONABLE DOUBT

Proof beyond reasonable doubt does not mean or import beyond any degree of certainty. The term strictly means that within the bounds of evidence adduced before the Court, no Tribunal of justice would convict on it having regard to the nature of the evidence led in the case. Evidence in a criminal trial, which is susceptible to doubt and does not establish the ingredients of the offences charged cannot be said to have attained the standard of proof that is beyond reasonable doubt. It should be a proof that excludes all reasonable inference or assumption except that which it seeks to support. It must have clarity of proof that is readily consistent with the guilt of the accused person. See State v. Onyeukwu (2004) 14 NWLR (Pt. 893) 340 at 379-380. UGOCHUKWU ANTHONY OGAKWU, J.C.A.

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): The appellant was convicted for the offences of harbouring persons under the ages of twelve years for the purpose of forced labour as domestic workers and treatment as slaves contrary to the provisions of Sections 22(a), 23(1)(a) and 25(a) of the Trafficking in Persons (Prohibition) Enforcement and Administration Act, 2015, (TPPEA) by the High Court of Lagos State (lower State) in the Charge No. 10/2272C/15. In the judgment delivered on January, 2018, the appellant was sentenced to terms of imprisonment for the said offences and aggrieved, she brought this appeal vide the notice of appeal dated 1st February, 2018 which was later amended by the amended notice of appeal dated the 19th November, 2018, deemed on the 16th July, 2020.

In the unpaginated appellant’s brief filed on 17th May, 2019, also deemed on 16th July, 2020, the Court is called upon to determine the following four issues in the appeal.
1. Whether or not the prosecution provided credible evidence to ground the conviction of the appellant of the offence of forced labour and slavery
2. Whether or not the contradictions in the evidence of the prosecution witnesses were not sufficient as to render them unsafe as a ground for convicting the appellant of the offence of force labour and slavery.
3. Whether or not the appellant harboured PW1 and PW2 with intent to subject them to force labourand slavery.
4. Whether or not the PW1 and PW2 were under the age of twelve years at the time the alleged offence of force labour and slavery were committed by the appellant.”

For the respondent, a sole issue is submitted for decision by the Court in the respondent’s brief filed on the 11th June, 2019, deemed on 16th July, 2020 as follows:-
Whether the Court below was right in convicting and sentencing the appellant on the basis of the evidence led by the prosecution (couched from grounds 1, 2, 3, 4, 5, 6 and 7 of the amended notice of appeal).“

Before a review of the submissions by counsel on the issues, the facts, briefly, leading to the conviction of the appellant are that she harboured one ChinazaAlozie and Favour Ibrahim for the purpose of the offences in the charge, sometime in December, 2015 at her home; No. 16 Celina Kasie Street, Idimu, Lagos. From the issues raised by learned counsel the pith of the complaints by the appellant can be put precisely into the sole issue of “whether the prosecution proved the offences against the appellant beyond reasonable doubt to ground her conviction by the lower Court, in law.”

The issue would be used in the determination of appeal and the arguments of learned counsel will be considered thereon.

Appellant’s Arguments:
Learned counsel for the appellant Abali O. Abali, Esq. submits that the prosecution did not provide any credible evidence which could ground the conviction of the appellant for the offence of forced labour and slavery as the prosecution witnesses are not credible. According to him, PW1; ChinazaAlozie, did not give evidence of the forced labour or slavery she was subjected to and that she and PW2; Favour Ibrahim, are both liars who lack credibility to be believed. It is the contention of counsel that PW6, the appellant’s Landlord, is a tainted witness who had issues with her regarding the recovery of her apartment during which the property inside was vandalized. The case of Gbadamosi v. State (1991) 6 NWLR (Pt. 196) @ 207 on the law that a witness can either be truthful or a liar, but cannot be both at the same time is referred to. In further argument, he said there were material contradictions in the evidence of the prosecution witnesses sufficient to render their evidence unsafe to ground the conviction of the appellant for the offence of forced labour and slavery.

The arguments of counsel on the contradictions in the evidence of the prosecution witnesses made at paragraph 4.2 of the appellant brief, are as follows:-
Your lordships the following material contradictions are evident in the testimonies of the prosecution witnesses;
PW1 stated that she was brought to Lagos by the appellant in December, 2014 (we refer to page 357 of the record of the record of appeal). At page 358 of the record, PW1 went on to narrate what happened when she came to Lagos. ‘‘She took me to Lagos and took me to my father’s brother. He asked me will I stay with him or the defendant? I said I will stay with her. He now ask if she was maltreating me I said no” She continued “we now went back to her house from that night she started maltreating me. She did not give me food that will be okay for me.”

Your lordships, this incident took place in December 2014. Yet barely two months later, PW1’s uncle, Uche Ndinulo who testified as PW4 visited her at the appellant’s house. Here is the evidence of PW4 at page 381 of the record of appeal
“It was in December 2014, Chinaza is my niece she was living with me when she was two years old so I now sent her to know her mother at that time. When Gift travelled home and saw Chinaza at home she said that her mother was not taking care of her very well so now I demanded that she bring her back to me which she did and she now demanded that she want her to stay with her. I asked Chinaza whether she will like to stay with Gift she said she wanted to stay with her. Then in February 2015 I decided to pay her a visit and as at that time she was looking very okay.”
As if to buttress the condition of PW1, the prosecution Counsel (Mrs. Falade) asked PW4 again, “When Chinaza was staying with the defendant did you visit her? P.W4 replied; “I visited her in February, 2015 and at that time she was okay.” Your lordships, the evidence of PW4 clearly contradicted that of PW1 who said that the appellant began to maltreat her the very night she went home with her after the visit to PW4 in December 2014. The learned trial judge never cast her mind to such fundamental contradictions.
(ii) PW3 (one Elizabeth Lawal) who claimed to be aunt to PW1 and PW2, gave evidence of what she saw when she visited the appellant’s house in August 2015 at page 378 of the record of appeal. She was led in evidence by the prosecution counsel (Mrs. Falade).
Mrs. Falade: And when you got to the defendant’s house what did you observe?
PW3: When I got there I say Chinaza and Favour but she is not looking fine.
Mrs. Falade: who is not looking fine?
PW3: Chinaza. I asked her if she has eaten, she said no she has not eaten anything. I asked her if she is happy she said no I am not happy.
At page 379 of the record of appeal, P. W.3 was cross examined by the defence counsel (Mr. Ayogu) and she recanted.
Mr. Ayogu: You told the Court that you visited defendant’s house in August 2015?
PW3: Yes with my elder sister
Mr. Ayogu: When you got there did you see Favour and Chinaza?
PW3: Yes I saw them
Mr. Ayogu: You saw the defendant
PW3: Yes
Mr. Ayogu: Did any of the children complain to you of being maltreated?
Mr. Ayogu: They did not compal in to me because they did not speak, they were afraid to speak to me.

Your lordships, here was PW3 approbating and reprobating at the same time. In one breath (during her examination-in-chief) she claimed that PW1 told her she had not eaten and was not happy and in another (during her cross examination) she said PW1 and PW2 never complained to her because they did not speak and were afraid to speak to her. The learned trial judge never considered this obvious material contradiction in the evidence of the prosecution in convicting the appellant. Moreover, even after the alleged visit of PW3 in August 2015, PW4 refuted any allegation of maltreatment of PW1 and PW2 by the appellant in his evidence at page 382 of the record of appeal.
Mrs. Falade: Did anybody tell you about Chinaza at any point in time?
PW4: My sister told me that Chinaza is not looking good which I called Gift on phone to confirm something like that, that she should give Chinaza phone for me to speak with her. So when I asked Chinaza about her condition and she said she is fine and there is no problem.

Your lordships these contradictions in the evidence of the prosecution, with due respect, are such that should sway the mind of the learned trial judge not to convict the appellant. In the case of Ogunbayo v. The State (2002) 15 NWLR (Pt.789) at page 76 at 82, the honourable Court held that where the prosecution’s case is found to be contradictory on a material issue, the Court should give that benefit of doubt to the accused person. Similarly, in Okafor v. The State (2006) 5 Q.C.C.R. 169, (2006) 4 NWLR (Pt. 969) 1, the honourable Court also held that where there are material contradictions on vital issues which creates reasonable doubt, the Court has the duty to resolve the doubt in favour of the accused person”.

It is also the case of counsel that there was no evidence of the intention by the appellant to subject the PW1 and PW2 to force labour and slavery since it was their mother and father, respectively, that requested the appellant to take them to live with her. That the appellant also enrolled them in the same school with her own children, citing pages 358 and 381 of the record of appeal in support of the argument, arguing that PW1 was withdrawn from school when she attempted to run away from home. Counsel also said that the evidence that the appellant made PW1 and PW2 to sweep the house, wash dishes and clothes and to bath her children only shows upbringing for children of their ages to learn ordinary chores which cannot be regarded as force labour and slavery by any stretch of imagination. It is submitted that the doubt about the intention of the appellant to subject PW1 and PW2 to forced labour and slavery should, on the authority of Oforlete v. State (2000) 12 NWLR (Pt. 689) 415, be resolved in her favour.

Learned counsel then argues that by the evidence before the lower Court both PW1 and PW2 were, at the material time of the alleged commissions of the offences more than or above twelve (12) years of age and that the lower Court did not ascertain their ages at the time of the alleged offences. He referred to the evidence of PW1 at page 368 of the record of appeal that she was born in January, 2003 and that of PW6 at page 402 where he said PW1 was about fourteen years old in December, 2015. Counsel contends that there is doubt about the age of PW1 and the guilt of the appellant which should be resolved in her favour, citing Ogunbayo v. State (supra).

Respondent’s Arguments:
Citing Ibrahim v. State (2015) 3 MJSC (Pt. II) 85; (2015) 11 NWLR (Pt. 1469) 164; Akpan v. State (2016) 1-2 SC (Pt. III) 93 @ 103, (2016) 9 NWLR (Pt. 1516) 110 and Emeka v. State WRN 37 (2014) 6 SCNJ 259, (2014) 13 NWLR (Pt. 1425) 614 it is submitted that the burden of proof in criminal proceeding lies on the prosecution to be discharged beyond reasonable doubt by credible evidence in any of the following ways:-
(a) Direct evidence of eye witnesses,
(b) Confessional statement of the accused person,
(c) Circumstantial evidence.

The definitions of “forced labour” in 8th Edition of Black’s Law Dictionary and “Slave” in Section 82 of TPPEA are referred to by learned counsel for the respondent; Selbol A. Langyi, a Principal Legal Officer with the National Agency for the Prohibition of Trafficking in Persons (NAPTIP), who submit that the prosecution has established its case against the appellant beyond reasonable doubt by proving the essential ingredients of the offences and the lower Court is right to have convicted the appellant relying on Ugwanyi v. Federal Republic of Nigeria (2010) 14 NWLR (Pt. 1213) 397 and Attah v. State (2009) 13 NWLR (Pt. 1164) 284 @ 289. He then sets out part of the evidence of PW1 at pages 358 and 360 of the record of appeal to argue that the evidence shows maltreatment of PW1 and PW2 by the appellant which the lower Court believed to convict her.

On alleged contradictions in evidence of the prosecution witnesses, counsel says, on the authority of Alo v. State (2015) 2 MJSC (Pt. 1) 139, (2015) 9 NWLR (Pt. 1464) 238 that it is not every contradiction in the prosecution evidence that will lead to its rejection, but it must be shown to be material so as to cast doubt on the case of the prosecution. He contends that there was no material contradiction between the evidence of PW1 and PW2 and that of PW3 and PW2 since the former gave direct evidence of their experience while the latter only gave evidence of their observation of the PW1 and PW2, citing Emeka v. State (2014) 6-7 MJSC (Pt. 1) 131-2, (2014) 13 NWLR (Pt. 1425) 614. It is then submitted that the evidence of PW1 and PW2 shows that they, as children, were forced to work and treated as slaves to do all the house chores and fed only once a day. PW1 and PW2 were said to be under the age of twelve years in 2015 when the offences were committed as shown in their evidence which was not discredited by the appellant.

According to counsel, the evidence that PW1 wanted to run away and PW2 begged for food at school shows that the appellant maltreated and starved them of food and so the lower Court was right and bound to accept and act on such credible evidence, placing reliance on State v. Oladotun (2011) 5 MJSC 130 @ 146, (2011) 10 NWLR (Pt. 1256) 542 and Oforlete v. State (supra) @ 436.

In conclusion, the Court is called upon to dismiss the appeal and affirm the judgment by the lower Court.

Resolution:
Learned counsel for the respondent is right, as it now elementary in our criminal law jurisprudence, that the burden of proof of an allegation of the commission of a criminal offence of a crime, against a person or persons, lies on the person/s or party/parties making the allegation.
In criminal proceedings before a Court of law, the burden of proof remains on the prosecution throughout the proceedings until it was satisfactorily discharged by credible, admissible and sufficient evidence beyond reasonable doubt as required by law in simple terms, proof beyond reasonable doubt required by law means that all the vital elements or ingredients constituting the alleged offence/s are established or proved by such evidence so as to conclusively and irresistibly show that it was the accused person/s and no other person/s that committed the offence/s and eliminate any other rational probabilities and reasonable doubt.
This position of the law is so because of the constitutional provisions in Section 36(5) of the now 1999 Constitution, that: –
“Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.”
Accordingly, a person charged with allegation/s of the commission of criminal or crime/s of whatever nature before a Court of law in Nigeria, is guaranteed and enjoys the presumption that he is innocent of such allegation/s until he is proved to guilty by the prosecution of the said allegation/s, to the satisfaction of the Court, beyond reasonable doubt. See, generally, Section 135(1) and of the Evidence Act, 2011, Onogudo v. State (1981) 5 SC 5, Iyaro v. State (1988) 1 NWLR (Pt. 69) 256; Aruna v. State (1990) 6 NWLR (Pt. 155) 125 @ 137; Alor v. State (1997) LPELR-432 (SC), (1997) 4 NWLR (Pt. 501) 511; Babuga v. State (1996) 7 NWLR (Pt. 460) 279; Ariche v. State (1993) 7 SCNJ 457, (1993) 6 NWLR (Pt. 302) 752; Hassan v. State (2001) 6 NWLR (Pt. 709) 286; Aigbadion v. State (2000) 4 SC (Pt. 1) 1, (2000) 7 NWLR (Pt. 666) 686; Igabele v. State (2006) 6 NWLR (Pt. 975) 100; Ochemaje v. State (2008) 136 NSCQR (Pt. 2) 826 @ 881, (2008) 15 NWLR (Pt. 1109) 57; Arogundade v. State (2009) All FWLR (Pt. 469) 409; (2009) 6 NWLR (Pt. 1136) 165; Akintade v. State (2012) LPELR-9470 (CA).

The offences the appellant was convicted for, as stated earlier, are said to be punishable under the provisions of the TPPEA; in Sections 22(a), 23(1) and 25(a). Sections provide that:-
“22(a) Any person who:
a. Requires recruits transports harbours receives or hires out a person to be used for forcedlabour within or outside Nigeria, or
b. …Commits an offence and is liable on conviction to imprisonment for a term of not less than N1,000,000.00.
“23(1) Any person who:
(a) Employs, requires, recruits, transports, harbours, receives or hires out a child under the age of 12 years as a domestic worker, commits and offence and is liable on conviction to imprisonment for a minimum term of 6 months and not exceeding seven years.”
“25 Any person who:-
(a) Deals, keeps, receives or harbours any person for the purpose of holding or treating that person as a slave.
…
Commits an offence and is liable on conviction to imprisonment for a term not less than seven years and to a fine of not less than N2,000,000.00.”

As can easily be seen, the provision of Section 22(a) creates and punishes the offence of requirement, recruitment, transportation, receipt or hiring out a person or persons to be used for forced labour within or outside Nigeria. The sole material and essential ingredient which constitutes the offence under the provisions of the Section and which has to be proved beyond reasonable doubt is that:-
(a) The accused person required, recruited, transported, received or hired out another person/s to be used for forced labour either in Nigeria or any other place or Country outside Nigeria.

Section 23(1)(a) creates and punishes, as an offence, the employment, requirement, recruitment, transportation, harbouring, receiving or hiring out, by a person, of a child under the age of twelve years as a domestic worker.
The provisions punish the offence of hiring; in or out, recruitment and for transporting children under the age of twelve years, as domestic workers in homes and other places. The vital or essential elements which constitute the offence created and punishable under the provisions and to be proved beyond reasonable doubt, are that:-
(a) That a person/employs, requires, recruit, transports, harbours, receives or hires out a child or children,
(b) That the child or children were at the material time, under the age/s of twelve years,
(c) That the child or children was/were employed, required, recruited, transported, harboured, received or hired out, as domestic worker/s.

On its part, Section 25(a) creates and punishes the offence of dealing, keeping, harbouring any person/s for the purpose of holding or treating the person/s as slave/s.
Two elements constitute the offence punishable under the provisions of the Section that have to be proved beyond reasonable doubt in order to secure a conviction for it, in the absence of a good and sustainable defence, they are:-
(a) That the accused dealt/deals, kept/keeps, received/ receives or harboured/harbours any other person/s and
(b) That such other person/s were dealt with, kept, received and/or harboured for the purpose of being held or treated as slaves at the material time.

What evidence was adduced by the respondent as the prosecution in proof of the offences the appellant was convicted for?

A summary of the relevant evidence was that the PW1 and PW2 lived with the appellant who maltreated them by starving them of food and making them do domestic house chores such as sweeping the house, washing clothes and dishes as well bathing her children. That PW1 and PW2, at the material time, in 2015 were children brought by the appellant from their parents/guardians to live with her in Lagos and thatPW1 attempted to escape or run away on December 7, 2015 from the house of the appellant was rescued and the matter reported to the police who in turn referred the matter to NAPTIP.

The evidence adduced before the lower Court shows that both PW1 and PW2 were related to the appellant, who in her evidence, said,
“I know them as my cousin’s daughters”

In its judgment, the lower Court found, in respect of the 1st and 2nd counts for the offence of forced labour under Section 22(a) at page 431 of the record of appeal that:-
“Having had the benefit of seeing the witnesses and their demeanour, the Court must say that it found the evidence of PW1, 2, 5 and 6 absolutely cogent and believable. It does not believe the defendant who said that the landlord was the one that used police to arrest her without good reason. As a matter of fact, her evidence in Court was different from the contents of exhibit P2A-C which were her statements admitted without objection from her.”

It then concluded at page 435 of the record of appeal that:-
“In this case it is my view that the evidence of PW1 and PW2 was corroborated by that of PW6 who said he saw PW1 whilst she was trying to escape from the defendant’s second storey apartment with a rope and that he had never seen her before in the house. The evidence was also corroborated by the defendant’s statements in which she agreed that they were no longer going to school. These pieces of evidence tally with the evidence that indeed PW1 and PW2 had been confined to the house as they claimed and that they were made to do domestic chores. I must therefore say that I accept the evidence of the prosecution and find that indeed the defendant was the one who recruited or harboured PW1 and PW2 and that she made them to work or do forced labour for her through act of threat, both physical and psychological in beating and tying them up, and that she abused her authority as their aunt by forcing them to work, I therefore hold that the prosecution has proved counts 1 and 2 against her beyond reasonable doubt.”

It may be recalled that the sole ingredient identified earlier, that has to be proved beyond reasonable doubt by credible, admissible and sufficient evidence in order to secure a conviction for the offence is that an accused person required recruited transported received or hired out another person/s to be used for forced labour in Nigeria or elsewhere outside the country. Is the lower Court right that the evidence placed before it established beyond reasonable doubt that the appellant “recruited and harboured PW1 and PW2’ to be used for hard labour? The evidence of PW1 on how she came to live with the appellant is that she was brought to Lagos from her village to her father’s brother (her uncle) by the appellant and according to her” He asked me will I stay with him or the defendant and I said I will stay with her’; see page 358 of the record of appeal.

PW1 also testified that the appellant said she was going to put her (PW1) in school and in fact, PW1 was put in the same school the appellant’s children attended.

In addition, it is the evidence of PW1, at page 363 of the record that while living with the appellant
“I will wash clothes, wash plate, sweep the whole house and bath her children”.

On her part, the evidence of PW2, at page 368 of record of appeal was, inter alia, that:-
“When I was staying with my stepmother, she was maltreating me so my daddy now brought me to Lagos to come and stay with his sister the defendant. When I was staying with her she put me in school with her children she stopped me from going school because her children told her that I was begging in school. She told me to stay at home and do the house chores-wash plate, wash her children’s clothes, sweep the house and do everything.”

From this evidence, PW2 was brought to Lagos by her father to live with the appellant who put her in school with her (appellant’s) children and she “wash plate, wash her children’s clothes, sweep the house”, just like PW1. So both PW1 and PW2; nieces of the appellant, were brought to live with the appellant who put them in the same school with her children and they wash “wash place”, “sweep the house’ “wash her children’s clothes” “bath her children” while living with her.

So one may ask, where is the evidence that the appellant recruited and harboured PW1 and PW2” to be used for forced labour in proof of the offence under Section 22(a)?

Can the washing of plates, children’s clothes, sweeping the house and bathing children of the appellant by PW1 and PW2; twelve-thirteen (12-13) years old girls at the material time, without more, be said to be credible evidence of forced labour for the purpose of the offence provided for in Section 22(a). The TPPEA did not define what forced labour is for the offences created and punishable thereunder, but as the name suggests, it involves coercion, force and compulsion; mental, psychological or physical, used by one person over another to do or provide service unwillingly and forcefully.

It cannot seriously be said that there was any plausible, cogent and credible evidence from the respondent that the appellant recruited, received and harboured PW1 and PW2; her nieces, (once more), who were brought or given to her by their parents to be put in school and looked after, to be used for forced labour for the offence under Section 22(a) to be proved beyond reasonable doubt, as required by law, to justify or warrant the conviction of the appellant for the offences in counts 1 and 2 of the charge before the lower Court.
Furthermore, as borne out by the record of appeal, the lower Court acknowledged that both PW1 and PW2, at the time of their testimony, were children who did not attain the ages of fourteen years, and so did not give sworn testimony pursuant to the provision of Section 209(1) of the Evidence Act, 2011. By dint of Sub-section (3), the appellant shall not be liable to be convicted for the offences she was tried for, unless the evidence of PW1 & PW2 was corroborated by some other material evidence in support of their testimony implicating her.

In the case of Omisade v. Queen (1964) NSCC 170, (1964) 1 All NLR 233, (1964) 1 NMLR 67, corroborative evidence was defined as:-
“evidence given by an independent witness which showed or tendered to show that the accused person committed the crime was true, not merely that the crime had been committed, but that it was committed by the accused. The corroboration needs not be direct evidence that the accused committed the crime, it is sufficient if it is merely circumstantial evidence of his connection with the crime.”
See also Igbine v. State (1997) 9 NWLR (Pt. 519) 101; Amadi v. State (1993) 8 NWLR (Pt. 314) 644;Siwobi v. C.O.P. (1997) 1 NWLR (Pt. 482) 411. Igri v. State (2009) LPELR-4374(CA); Ogunbayo v. State (2007) 8 NWLR (Pt. 1035) 157; Posu v. State (2010) 3 NWLR (Pt. 1234) 393.
By the judicial definition in the above and a legion of other cases, corroborative evidence must be independent evidence or testimony which affects the accused by connecting him with the offence either directly or in circumstances which clearly implicate him with the offence in some material particulars.

In its judgment, the lower Court stated and found that the evidence of PW6 corroborated the evidence of PW1 and PW2 when he said he saw PW1 trying to escape from the appellant’s 2nd floor apartment with a rope.

The relevant evidence-in-chief of PW6; Godwin IwekaNnnaka, the appellant’s landlord, appears at pages 401-402 of the record of appeal and is as follows: –
“On the 7th of December 2015, I was resting at about 12 noon I heard a scream, people shouted when I ran out from where I was staying I went through the gate I didn’t see anybody I went through the other side of the compound I saw a girl about 14 years or thereabout trying to escape with the rope. Many people were gathered they were asking her who she was,’ she was begging them to help her she was trying to escape from two storey building. As she was trying to do so one of the tenants in the compound Nicolas Ugwu held her leg I came with ladder and we rescued her. We asked her where she was coming from she said she lived in the compound, we said no we have not seen anybody like her in the compound. Before then this thing had attracted passerby. And it dawned on us we have to report the matter to the Police Station.
Mrs. Falade: Did you ask her question?
Witness: Yes, we ask her where she was staying she said she was living in our midst. We ask her how long she had been living in the compound she said over a year. The whole tenants said no we even thought she was a witch we asked her who she was living with. She said the defendant.”

The purport of the evidence by PW6 above, is that he saw PW1 for the first time on the 7th December, 2015, trying to escape from the appellant’s apartment with a rope. Does this piece of evidence provide the requisite support, confirmation of the evidence of PW1 and PW2 in anymaterial particulars to implicate the appellant in the alleged commission of the offence of recruiting, receiving and harbouring them to be used for forced labour to constitute corroboration to ground the conviction of the appellant? As I have stated earlier, the evidence of PW1 and PW2 did not prove the commissioning of the offence by the appellant beyond reasonable doubt and so there was no credible and cogent evidence in proof of the offence given by them to require any corroboration to warrant the conviction of the appellant by the lower Court.

The conviction of the appellant for the offences in counts 1 and 2 of the charge against her is not supportable and cannot be sustained in law.

The next issue that requires decision is whether there was credible evidence that proved the offence in counts 3 and 4 of the charge, habouring PW1 and PW2, said to be children under the ages of twelve years, as domestic workers contrary to Section 23 (a).

Again, the relevant evidence is that of PW1 and PW2 who simply said they washed plates and children clothes, swept the appellant’s apartment and bathed her children while they lived with her. By theirrespective undisputed evidence, PW1 and PW2 stated their ages at the time they were brought to live with the appellant.
PW1, at page 357 of the record of appeal stated that:
“I am 13 years old I was born in 2003.”
PW2 at page 387 of the record of appeal said that –
“I am 13 years old. I was born in January, 2003.”

Both PW1 and PW2 testified and gave the above evidence before the lower Court on the 4th July, 2016, and their uncontroverted evidence was that both of them went to live with the appellant in December, 2014 and January 2015. It is clear therefore that both of them were barely or almost twelve years of age respectively, in 2014/2015 when they lived with the appellant and not below or under the ages of twelve (12). The provisions of the Section 23(1) (a) creates and punishes, as an offence of employment, recruitment, receipt, hiring out or use of a child under the age of twelve years as a domestic worker.

As shown earlier, the relevant and credible evidence of PW1 and PW2, is that they were given to the appellant, their aunty, by their parents to be put in school and be taken care of and there is noevidence that the appellant did employ, recruit, receive or harbour them to live with her as domestic workers who were to do or perform domestic chores for reward, payment or other benefit to paid for the service. The evidence of PW4; Uche Ndinulo, who is PW1’s Uncle, shows and support that the appellant did not employ, recruit, receive or harbour PW1 as a domestic servant from him.

The evidence of PW3 also shows and supports that PW2 was taken to live with the appellant to be put in school and not as a domestic worker or servant who was to work for pay or salary.

The evidence before the lower Court is therefore that even though PW1 and PW2 were barely or almost twelve years of age at the time they were taken by the appellant to live with her, there is no credible evidence that they were employed, recruited, received or harboured by the appellant as domestic workers or servants to prove the offence under Section 23 beyond reasonable doubt.

The evidence of PW1 and PW2 that they did some domestic house chores when they lived with the appellant does not constitute proof that they did so as domestic workers specifically employed, recruited or harboured to do so.

The conviction of the appellant for the offences in counts 3 and 4 of the charge by lower Court is not sustainable in law for want of the requisite proof beyond reasonable doubt.

The last offence the appellant was convicted for was for dealing, keeping, receiving or harbouring PW1 and PW2 for the purpose of holding or treating them as slaves. A “slave” is defined in TPDEA as:
“person who is held in bondage, whose life, liberty, freedom and property are under the absolute control of someone.”

The word “bondage” is defined in 10th Edition of Black’s Law Dictionary, at page 216, to include:-
2. The state or condition of being a slave, involuntary servitude, condition or state of having one’s freedom limited or being prevented from doing what one wants, subjection to some power or influence. The state or practice of being tied up for sexual pleasure.”

The lower Court relied on the evidence of PW1 and PW2 that they were being chained and tied down by the appellant and held that they were held in bondage and that their freedom and liberty were under the absolute control of the appellant. Again, the lower Court stated that the evidence of PW6 corroborated the evidence of PW1 and PW2 when he said he saw PW1 trying to escape from the appellant’s apartment.

The evidence of PW1 and PW2 on their being maltreated by the appellant, is uncontradicted and uncontroverted and is to the effect that the appellant starved them of food, leading PW1 to steal or pilfer from the appellant’s pots and PW2 to beg in the school, beating them, stopping them from going to school, tying and chaining them at the balcony of her apartment when they did something wrong, and locking them up in the toilet. PW2 showed the lower Court the marks from the beatings by the appellant while PW1 said she was beaten with the leg of chair on the head until blood came out.

In her statement to the police and evidence before the lower Court, the appellant, merely denied maltreating PW1 and PW2, but admitted stopping the two of them from attending school while her own children attended school at the time.

The way and manner the appellant treated PW1 and PW2 from the evidence, was quite unusual, abnormal, inhuman, wicked and even cruelfor an aunty to deal with her twelve years old nieces in the presence of her own children. Of course, the appellant was supposed to properly bring up PW1 and PW2 as disciplined children who would eventually be responsible adults, but in so doing, the law does not allow or permit her to subject them to the servitude of chaining, tying, beating and starvation, thus denying them or curtailing their freedom and right to be children that should be cared for and loved. If the appellant could no longer keep or allow PW1 and PW2 to go to school and take proper care of them, as she undertook and promised to do to their parents, as a mother and an aunty to them, she should have immediately taken or returned them back to their respective homes and not to resort to subjecting them to starvation, beating, tying and chaining and stopping them from going to school.

The evidence of PW1 and PW2 is credible and sufficient to prove beyond reasonable doubt that the appellant dealt with and treated them in a matter that only slaves could ordinarily be treated by their masters for the purpose of the offence under Section 25(a) and the lower Court is right to have so found.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

This is the stage to consider the argument by the learned counsel for the appellant that there was contradiction in the evidence of the prosecution witnesses to make it unsafe to convict the appellant. As for the offences in counts 1, 2, 3 and 4 of the charge the appellant was convicted for, since no credible and sufficient evidence was found to have been adduced by the respondent in proof of the said offences, the question or issue of contradictions in the evidence was of no moment. The law is firmly settled that contradictions in the evidence of prosecution witnesses in criminal proceedings on material points or issues in respect of proof of the essential or vital elements or ingredients of an offence, will create some reasonable doubt that the accused person in fact committed and was guilty of the offence or crime in question and so fatal to the case of the prosecution.

Two pieces of evidence contradict each other when they are by themselves or on their own, inconsistent and cannot be true at the same time. A piece of evidence contradicts another when it affirms the direct opposite of what that other evidence stated such that the two are irreconcilably inconsistent with each other. See: Gabriel v. State (1989) 5 NWLR (Pt. 122) 457 @ 468; Sole v. State (1993) 1 SCNJ 22, (1993) 1 NWLR (Pt. 269) 27;Isiekwe v. State (1999) 9 NWLR (Pt. 617) 43 @ 69; Stephen v. State (2009) All FWLR (Pt. 49) 962; Dibie v. State (2007) 5 SCNJ 160, (2007) 9 NWLR (Pt. 1038) 30; Shurumo v. State (2010) 16 NWLR (Pt. 1218) 65.

In the case of Igabele v. State (supra) it was held by the apex Court; per Onnoghen, J.S.C, later (C.J.N) that:-
“It is trite law that for contradiction in evidence of prosecution witnesses to be material and capable of rendering the evidence unreliable and not capable of being acted upon, such contradictions or inconsistences must relate to the material ingredients of the offence charged.”
Belgore, J.S.C. (later CJN) in Buba v. State (1994) 7 NWLR (Pt. 355 195, put the position thus:-
Contradictions in evidence for the prosecution must be material and substantial enough to create doubt, the benefit of which must be given to the accused person. In criminal matters therefore, not all conflicts and contradiction in evidence will vitiate the case for the prosecution.”
See also Ikemson v. State (1989) 6 SC 91, (1989) 3 NWLR (Pt. 110) 455; Namsoh v. State (1993) 5 NWLR (Pt. 212) 129, Awopejo v. State (2001) 18 NWLR (Pt. 745) 430.
On the authority of these cases and many more, it is not any difference, minor inconsistency or discrepancies between evidence of prosecution witnesses (or indeed all witnesses in other cases) is to render or make the evidence in question unreliable, incredible and unsafe to be accepted and acted upon by a Court for the conviction of an accused person. In this regard such differences, minor inconsistency or discrepancies in evidence would not go to the substance and fundamental points, issues or ingredients of an offence so as to amount to or constitute material contradictions that are fatal to the prosecution’s case by creating reasonable doubt in proving the guilt of the accused person.

In the appellant’s case, as seen, the contradictions said to be in the evidence of the prosecution witnesses are in the evidence of PW1, PW2 on the one hand and that of PW3 and 4, on the other hand, in respect of the maltreatment of PW1 and PW2 by the appellant. The evidence of PW4 which is said to be in contradiction with the evidence of PW1 is at page 381 of the record of appeal where he said, inter alia, that:-
“I visited her in February, 2015 and at that time she was okay”

The evidence does not in any material way or manner contradict the evidence of PW1 that the appellant started maltreating her in December, 2014, as she gave the nature of the maltreatment at the time, i.e. washing plates, bathing children and sweeping the house.

At the material time, PW1 was still attending school and did not attempt to run away from the appellant. For the purpose of the offence under Section 24(a) the maltreatment of subjecting PW1 to the degrading and inhuman servitude and bondage of chaining, tying, starvation and beating on the head with wood, started after PW1 allegedly attempted to run away which led to her to attempt to escape from the appellant’s apartment on 7th December, 2015. The evidence of PW4 was therefore not on the conditions of PW1 during or after the maltreatment by the appellant of subjecting her starvation, beatings, chaining and tying and so not material in the determination ofwhether the offence underSection 25(a) was proved beyond reasonable doubt.

The evidence of PW3, rather than contradict the evidence PW1 on the maltreatment, supports it. By her evidence, PW3; PW1’s auntie, visited her in August 2015 at page 378 of the record of appeal testified that: –
“When I got there I saw Chinasa and Favour but she is no looking fine.
Mrs. Falade: Who is not looking fine?
Witness: Chinasa, I asked her if she has eating she said no she has not eating anything, I asked her if she is happy she said no I am not happy. Since I have not been there again it was only my brother that used to go there”

Under cross-examination, PW3 said, at page 379 of the record of appeal in answer to the question whether any of the children (PW1 and PW2) complained to her of being maltreated during her visit, that:-
“They did not complain to me because they did not speak, they were afraid to speak to me.”

This piece of evidence clearly goes to strengthen and fortify, rather than contradict, the evidence of PW1 and PW2 that they were in fact being maltreated such that fear was instilled in them to the extent that they were afraid to even speak to another aunty of theirs about the condition they lived in with the appellant.

The issue of material contradictions in the evidence of PW3 and PW4 does not arise to make the evidence of the prosecution unsafe to be acted upon by the lower Court to convict the appellant for the offence under Section 25(a).

Furthermore, the learned counsel for the appellant has casually and feebly asserted without any demonstration of the material facts, from the record of appeal, that PW6 is a tainted witness in whose interest it was to see the appellant jailed to prevent her from coming back to her apartment to ask for her property. A tainted witness has been judicially defined to mean either an accomplice or a witness who, by the evidence he gives, may or could be reasonably regarded as having some interest or purpose of his own to serve in the evidence he gives. The purpose of finding and treating a witness as tainted witness is for the Court to be cautious and warn itself of the risk or danger of solely accepting and relyingon the evidence he gives as satisfactory proof of the fact, issue or element of an offence, asthe case may be. See Ishola v. State (1978) 9-10 SC 81 @ 100; Mbenu v. State (1988) 3 NWLR (Pt. 84) 615; Adetola v. State (1992) 4 NWLR (Pt. 235) 267; Orisakwe v. State (2004) 12 NWLR (Pt. 887) 258; Okoro v. State (1998) 14 NWLR (Pt. 584) 181.

The evidence of PW6 on how PW1 wanted to escape from the maltreatment by the appellant is strong and cogent circumstantial evidence which goes to support and strengthen the evidence of PW1 and PW2 or their maltreatment and constitutes the requisite corroboration to implicate the appellant in the commission of the offence.

The lower Court is therefore right, again, to hold that the evidence of PW6 is sufficient corroboration to that of PW1 and PW2 to warrant the conviction of the appellant for the offence under Section 25(a).

In the result, I resolve the issue in favour of the respondent.
In the final result, the appeal succeeds in part on the conviction of the appellant on counts 1 & 2 and 3 & 4 of the charge and fails on the counts 5 and 6 of the charge. Accordingly, the conviction and sentences of the appellant for the offences under Sections 22(a), and 23 are hereby set aside while the conviction and sentence of the appellant for the offence under the provisions of Section 25(a) is hereby affirmed.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I am in full agreement with the exhaustive and lucid judgment prepared by my learned brother, Mohammed Lawal Garba, J.C.A., (Hon. P.J.).

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I had the opportunity of reading in draft the lead judgment just delivered by my learned brother, Mohammed Lawal Garba, J.C.A. I agree with his reasoning and conclusion that the appeal has merit and ought to be allowed in respect of counts 1 to 4 of the charge against the appellant, but dismissed in respect of count 5.

Our adversary criminal justice system is accusatorial. This is in tune with Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which provides that every person charged with a criminal offence shall be presumed innocent until he is proved guilty. The necessary corollary of this presumption of innocence is that the prosecution has the onus of proving the commission of the crime charged beyond reasonable doubt as stipulated in Section 135 of the Evidence Act, 2011.

If on the whole of the evidence adduced, a state of doubt exists, then the prosecution would have failed to discharge the onus of proof and the accused person will be entitled to an acquittal. See Ukpe v. The State (2001) 18 WRN 84 at 105.

The law is that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt and if the evidence is strong against a man, as to leave only a remote probability in his favour, which can be dismissed with the sentence; “of course it is possible; but not in the least probable”, the case is proved beyond reasonable doubt. See Miller v. Minister of Pensions (1947) 2 All E.R. 372 and Michael v. State (2008) LPELR (1874) 1 at 24, (2008) 13 NWLR (Pt. 1104) 361.
As admirably analysed and demonstrated in the lead judgment, the lower Court was in error to have convicted the appellant on counts 1 to 4 of the charge as the essential ingredients of the offences charged were not proved beyond reasonable doubt. The evidence adduced in respect of the said counts 1 to 4, leaves a lot more than a remote probability in favour of the appellant, it is not such that can be dismissed with the sentence; “of course it ispossible, but not-in the least probable”.
Proof beyond reasonable doubt does not mean or import beyond any degree of certainty. The term strictly means that within the bounds of evidence adduced before the Court, no Tribunal of justice would convict on it having regard to the nature of the evidence led in the case. Evidence in a criminal trial, which is susceptible to doubt and does not establish the ingredients of the offences charged cannot be said to have attained the standard of proof that is beyond reasonable doubt. It should be a proof that excludes all reasonable inference or assumption except that which it seeks to support. It must have clarity of proof that is readily consistent with the guilt of the accused person. See State v. Onyeukwu (2004) 14 NWLR (Pt. 893) 340 at 379-380.

The converse is however the case with respect to count 5 of the charge; the evidence adduced established the essential ingredients to prove the offence charged, which was preferred under Section 25 (a) of the Trafficking in Persons (Prohibition) Administration and Enforcement Act, 2015. The evidence clearly established that the appellant held her victims whowere about twelve (12) years old in bondage and that they were absolutely under her control, such that the PW1 attempted to use a rope to escape from the two storey building apartment of the appellant. I agree with my Lord, Garba, J.C.A. that a rational and critical examination of the evidence in the matter discloses that the respondent discharged the burden cast upon it of proving the offence charged in count 5 beyond reasonable doubt.

Howbeit, the doubt which exists in the case of the respondent in respect of counts 1 to 4 of the charge arising from the ingredients not having been proved, ought to have been resolved in favour of the appellant: Ukpe v. State (supra) at 105; Edet v. State (1988) LPELR (1008) 1 at 21, (1988) 4 NWLR (Pt. 91) 722 and Orji v. State (2008) 10 NWLR (Pt. 1094) 31 at 50.

In the light of the foregoing, I also join in allowing the appeal in part. The conviction and sentence of the appellant by the High Court of Lagos State in respect of counts 1 to 4 of the charge in its judgment in charge No. ID/2227C/2015 delivered on 10th January 2018 is hereby set aside. The appellant is discharged and acquitted on the said counts 1 to 4.However, the conviction and sentence imposed on the appellant in respect of count 5 of the charge which was proved beyond reasonable doubt is hereby affirmed.
Appeal allowed in part.

Appearances:

A. Okoruku For Appellant(s)

B. Jibo For Respondent(s)