VOTE v. STATE (2022)

VOTE v. STATE

(2022)LCN/16607(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Friday, July 01, 2022

CA/AS/92C/2021

Before Our Lordships:

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

SABITOR VOTE APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

FACTORS TO BE PROVED TO ESTABLISH THE OFFENCE OF ARMED ROBBERY

The law is trite that for the prosecution to secure a conviction for a particular offence, all the elements of the offence must be proved beyond reasonable doubt by cogent, credible and legally admissible evidence.

The elements of the offence of armed robbery which must be proved beyond reasonable doubt are: (a) That there was a robbery or series of robbery; (b) That each robbery was an armed robbery; and (c) That the person accused of the robbery was one of those who participated in the robbery or series of robberies. The prosecution can discharge that burden by any or a combination of the following means:

THE POSITION OF LAW ON THE FACTOR THAT MUST BE PRESENT BEFORE A CONFESSIONAL STATEMENT CAN LEAD TO THE CONVICTION OF AN ACCUSED PERSON

It is also trite law that before a confessional statement could result to conviction of an accused person, it must be unequivocal in the sense that it leads to the guilt of the accused. Where the alleged confessional statement is capable of dual or more interpretations in the realm of guilt and non-guilt, a trial Court will be hesitant to convict the accused but it should instead give him the benefit of doubt. See NWEZE V. STATE (2017) LPELR-42344(SC) AT 32-33(A-E). PER BOLAJI-YUSUFF, J.C.A.

FACTORS TO ESTABLISH THE OFFENCE OF KIDNAPPING

Section 364 of the Criminal Code Law of Delta State under which the appellant was charged for the offence of kidnapping provides that:
“Any person who…..
(1) Unlawfully imprisons any person, and takes him out of Nigeria, without his consent; or
(2) Unlawfully imprisons any person within Nigeria in such a manner as to prevent him from applying to a Court for his release or from discovering to any other person the place where he is imprisoned, or in such a manner as to prevent any person entitled to have access to him from discovering the place where he is imprisoned, is guilty of a felony, and is liable to imprisonment for ten years.”
It has been firmly established by a long line of cases that for the prosecution to secure a conviction for the offence of kidnapping, it has to prove the following facts beyond reasonable doubt:
(i) That the victim was seized, and taken away by the accused person.
(ii) That the victim was taken away against his consent.
(iii) That the victim was taken away without lawful excuse.
See OKASHETU V. STATE (SUPRA), (2016) LPELR- 40611(SC) AT 15-16 (F- B). PER BOLAJI-YUSUFF, J.C.A.

THE POSITION OF LAW ON PROOF BEYOND REASONABLE DOUBTS

If a Court of law comes to the conclusion that a statement made by an accused person satisfies all the legal requirements of a confessional statement, then the charge against the accused must of necessity have been proved beyond reasonable doubt. See OLADAPO V. STATE (2020) LPELR-50553(SC) AT 7- 8(D-C). In law, prove beyond reasonable doubt is not prove beyond all shadows of doubt. See BAKARE V. STATE (1987) LPELR-714(SC) AT 10 – 11 (D-D), (1987) 1NWLR (PT.52) 579 where the Supreme Court Per OPUTA, J.S.C stated thus:
“Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace this presumption, the evidence of the prosecution must prove beyond reasonable doubt, not beyond the shadow of any doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure including the administration of criminal justice. Proof beyond reasonable doubt means just what it says. It does not admit of plausible and fanciful possibilities but it does admit of a high degree of cogency, consistent with an equally high degree of probability. As Denning, J. (as he then was) observed in Miller v. Minister of Pensions (1947) 2 All. E.R. 373:- “The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility 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 also THOMAS V. STATE (2017) LPELR- 41735(SC) AT 26-27, (2015) 9 NWLR (PT. 1570) 230. PER BOLAJI-YUSUFF, J.C.A.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): The appellant herein and one other person were arraigned and tried before the High Court of Delta State for conspiracy to commit kidnapping, kidnapping, demanding with menaces punishable under Sections 364, 406 and 516 of the Criminal Code Law, Cap. C21, Volume 1, Laws of Delta State of Nigeria and armed robbery punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. R. II, volume 14, Laws of the Federation of Nigeria, 2004.

The case of the prosecution was that on 31/3/2012, PW1 on his way from work in a Toyota Corolla car stopped for his friend, Elvis Alfred who was with him in the car to come down in front of his house. As soon he stopped, another car double crossed them. Five gunmen came out of the car, started beating him and his friend. They put him inside the booth of the car. His friend was put in the back seat of the car. After driving the car for some time, the car stopped, PW1 and his friend were brought out of the car. The car and all the items that were in the car have not been found till date. PW1 and his friend were immediately blind-folded, dragged into the bush and chained to a tree. Two persons were guarding them in the bush. On the 5th day, they were able to escape and made their way to Ugheli/Warri Road where they found two soldiers at NEPA office. PW1 was able to contact his brother who in turn contacted the Anti-Terrorists Squad. The brother went with the squad to meet them and they led the squad to the place where they were detained and waited until the two people guarding them showed up. The appellant and his co-convict were the two persons that showed up and they were arrested. Ammunitions were recovered from the camp and the appellant and his co-convict confessed to being part of the kidnapping gang that kidnapped PW1 and his friend.

The prosecution called two witnesses. The appellant testified in his own defence and called no other witness. The lower Court in its judgment delivered on 19/6/2017 by F. N. AZINGE, J found the appellant and his co-convict guilty of conspiracy to commit kidnapping, kidnapping and armed robbery and sentenced them accordingly.

The appellant was aggrieved by the judgment. He filed a notice of appeal against the judgment on 12/3/2021 having been granted an extension of time by an order of this Court made on 4/3/21. An amended notice of appeal filed on 10/9/21 was deemed as properly filed and served on 9/2/22. The grounds of appeal without their particulars are as follows:
GROUND 1
The learned trial Judge erred in law when he found the appellant guilty of the offence of armed robbery (count iv of the information) and convicted the appellant on the offence of armed robbery.
GROUND 2
The learned trial judge erred in law when he found the appellant guilty of counts I and II of the information which borders on the offence of kidnapping and convicting the appellant for the offence of kidnapping.
GROUND 3
The decision of the trial Court is unreasonable and cannot be supported, having regards to the evidence presented by the prosecution.

The appellant’s brief of argument was filed on 10/9/2021. The respondent’s brief of argument was filed on 3/11/21. Appellant’s reply brief was filed on 9/11/21. The briefs were deemed as properly filed and served on 9/2/22. The appellant formulated the following issues for determination:

I) Whether the trial Court was right in finding the appellant guilty of count IV of the information and in convicting the appellant on the said count IV?
Il) Whether the trial Court was right in finding the appellant guilty of counts I & II of the information and in convicting the appellant on the said Counts I & II?

The Respondent formulated the following sole issue for determination:
Whether the learned trial Judge was right in holding that the prosecution proved the charges wherein the appellant was convicted beyond reasonable doubt.

The appellant’s issues are hereby adopted for the determination of this appeal.

On issue 1, the appellant’s counsel submitted that the prosecution failed to prove all the elements of the offence of armed robbery beyond reasonable doubt as required by law. He referred to IBRAHIM V. C.O.P (2020) 15 NWLR (PT.1746) 122 AT 146, OSUAGWU V. STATE VOL. 219 LRCN AT 219. He submitted further that there was no oral or documentary evidence on the type or brand and ownership of the car PW1 was driving and other items that were allegedly taken by the robbers. According to counsel, the particulars and specification of what was robbed is very material to proving the offence of armed robbery because without stating specifically what was stolen and proving that it was actually stolen, a person cannot be convicted for robbery or armed robbery. He contends that failure to call Elvis Alfred, the co-victim of the alleged robbery who was in the car with PW1 and eyewitness of the incident to testify before the Court is fatal to the case of the prosecution. He also submitted that there was no evidence before the lower Court that violence was used in order to obtain or retain the vague and unproven items allegedly taken by the unknown gunmen. He argued that the prosecution failed to prove the mensrea of the offence of robbery as the entire evidence before the Court suggests that the intention of the unknown gunmen was to kidnap but not to rob the victims. He analyzed the evidence of PW1 that the appellant and his co-convict were the persons guarding them and not his captors and the evidence of PW2 surrounding the circumstances of the arrest of the appellant and his co-convict in the bush, he submitted that the finding of the lower Court that the appellant was one of the persons that guarded PW1 is perverse.

Counsel argued that assuming but not conceding that the content of the appellants statement is true, the statement does no prove that the appellant had the opportunity to commit armed robbery and it was not corroborated by any evidence outside the statement which statement suggested only the offence of kidnapping. He referred to ALI V. STATE (2019) 14 NWLR (Pt. 1692) 314 (CA).

The respondent’s counsel in his response referred to the evidence of PW1 that five (5) armed men attacked him and his co-victim and the Toyota Corolla car he was driving, Ipad, Nokia handset and the N80,000.00 (Eighty Thousand Naira) in the car were taken away. He submitted that the trial Court was right to rely on the credible evidence having not been controverted under cross-examination. He referred to STATE V. OLADOTUN 2011 VOL. 199 LRCN PG 65 AT 67 R.1. He also submitted that proof of ownership of an item taken during an armed robbery operation is not one of the elements of the offence of armed robbery under the Robbery and Firearms (Special Provisions) Act under which the appellant was charged. He further submitted that armed robbery is not one of the offences that require or need corroboration and PW1 is not an accomplice for his evidence to require corroboration. In reaction to the failure to call the co-victim of the alleged robbery, he submitted that the law is trite that evidence of a single credible witness is sufficient to ground a conviction. He referred to ESENE V. STATE 2017 ALL FWLR (PT. 910) PG 338 AT 345 R.9.

The reply of the appellant’s counsel was a mere repetition or emphasis on his submissions and arguments in the appellant’s brief of argument.

RESOLUTION
The law is trite that for the prosecution to secure a conviction for a particular offence, all the elements of the offence must be proved beyond reasonable doubt by cogent, credible and legally admissible evidence.

(a) The confessional statement of the accused person(s); or (b) Circumstantial evidence; or (c) Evidence of eyewitness of the crime. See OPEYEMI V. STATE (2019) LPELR- 48764(SC) AT 26(C), SEUN V. STATE (2019) LPELR – 47549 (SC) AT 18(C), MINDI V. STATE (2020) LPELR- 52897(SC) AT 31-32(D-E), DONDOS V. STATE (2021) LPELR-53380(SC) AT 8-9(B-B).

In the instant case, the prosecution relied on the evidence of an eyewitness, the victim of the crime and the confessional statement of the appellant, Exhibit J. On the offence of armed robbery, the lower Court held as follows at pages 110-111 of the record of appeal:
“It was the evidence of the P.W.1 that the Corolla car he was driving in which he had his HP Laptop computer valued at N80,000 (Eighty Thousand Naira) only, one I-pad and two Nokia cell phones in the car were taken away from him by five armed men on the fateful day, till date, he has not found the car nor the items in the car. There is evidence adduced before the Court by the P.W.1 that there was a robbery on the 31st of March, 2012 and the five men who robbed him of these items were armed.
The learned defence Counsel contended that the evidence adduced by P.W.1 did not link the accused persons to the offence of armed robbery. The accused persons confessed in Exhibits ‘H’ and ‘J’ of being members of the gang and that they took part in the event of the 31st day of March, 2012. The accused persons can therefore not extricate themselves from the robbery carried out by members of their gang who are at large. They are collectively and individually responsible for the acts of their gang. See Section 7 (a) (b) (c) and (d) of the Criminal Code Cap. C. 21, Volume 1, Laws of Delta State of Nigeria, 2006. Where more than one persons are accused of joint commission of a crime, it is enough to prove that they all participated in the crime. See NWANKWOALA V STATE (2006) 14 NWLR (PT. 1000) 663 AT 682 – 683. I hold the view that the Prosecution has established all the essential elements of the offence of armed robbery reasonable doubt.”

I have carefully considered the above finding and the entire evidence of PW1 including his statement, Exhibit A which was made at the earliest opportunity after he and his co-victim escaped from the bush where they were held by the kidnappers. The entire evidence of both the prosecution and the defence points irresistibly to kidnapping not armed robbery. PW1 himself confirmed this in his statement when he stated that he and his co-victim were kidnapped. In BABALOLA & ORS V. THE STATE (1989) LPELR- 695(SC) AT 45-46(B-A), the Supreme Court held that “The full definition of every crime contains expressly or by implication a proposition as to the state of mind.” Mensrea is a necessary ingredient of the offence of armed robbery. The intent and the act must both concur to constitute the crime. It must be established by the prosecution as positively as any other fact constituting the offence and its absence or failure to prove the requisite mensrea beyond reasonable doubt would entitle the accused to a verdict of an acquittal. Armed robbery is stealing plus use of violence to take or retain an item taken from a person. What that means is that there must be a demand with threat of violence made to a person to intimidate him to part with the thing stolen or to retain it. The presence of the person alleged to have been robbed at the time of taking the item and threat or use of violence to take the item from him or to retain it after the taken is therefore an essential element of the robbery which must be established beyond reasonable doubt by the prosecution. From the entire scenario described by PW1, it is clear that the aim of the attacker was to kidnap PW1 and his co-victim. From the entire evidence on record, by the time the unknown gunmen drove the car away with its content, PW1 and co-victim had been taken into the bush. The action of the unknown gunmen in driving away the car and taking its contents after handling PW1 and co-victim to the appellant and his co-convict amount to stealing. Therefore, I do not agree with the lower Court that there was a robbery and that the robbery was an armed robbery.

Even, if the actions of the unknown gunmen technically amount to armed robbery, the most important element of the offence of armed robbery is the identity of the armed robber or robbers. The evidence of PW1 was that he does not know his attackers or captors. His evidence that he and the co-victim were blind folded throughout the four days they spent in the bush also confirmed that he did not see any of the two guards physically. He only recognized the appellant and his co-convict as the persons who were arrested by the Anti-Terrorist Squad in the bush. The evidence of PW1 cannot be relied on to conclude that the appellant participated in the alleged armed robbery.

The lower Court relied heavily on the appellant’s statement, Exhibit J. I have perused Exhibit J. There is nowhere in Exhibit J that the appellant admitted being a member of an armed robbery gang or the occurrence of the armed robbery for which he was convicted. I cannot find anything which suggests even remotely that the appellant agreed to participate or that he participated in any armed robbery. The appellant narrated how he was informed by his friend, Aliko who is a kidnapper that he was going to kidnap some persons and he, the appellant would be guarding the hostages during the day. He accepted the assignment. He confirmed that he had performed the role of guarding kidnapped persons twice. There is nothing in the appellant’s narration that amount to confession to an offence of armed robbery.

The law is settled that a Court can convict solely on the confessional statement of an accused person. However, the confessional statement must be direct and positive to the offence the accused is charged for.

If the lower Court had properly and carefully considered the appellant’s statement vis-a-vis the elements of the offence of armed robbery and the conditions for reliance on a confessional statement, the Court would not have come to the conclusion that the prosecution established all the essential elements of the offence of armed robbery beyond reasonable doubt. I have no doubt that the evidence of PW1 and the appellant’s statement cannot sustain the conviction of the appellant for armed robbery. There is no doubt that Exhibit J is a confession to kidnapping. However, a confession to kidnapping cannot translate to a confession to armed robbery. See STATE V. AZUMA (2020) LPELR-50378(CA) AT 30- 31(C-C), NZEGBUNE V. STATE (2020) LPELR-49670(CA) AT 25-26(D-E), ANADUE V. STATE (2020) LPELR-49699(CA) AT 23-24(C-C). The elements of the offences of kidnapping are not the same with the elements of armed robbery. They are distinct and separate offences. Issue 1 is therefore resolved in favour of the appellant.

On issue 2, the appellant’s counsel posited that the lower Court was wrong in convicting the appellant for conspiracy to kidnap and kidnaping as there was no evidence to sustain same. He contends that the trial Court was wrong when after disbelieving the prosecution’s evidence as it relates to count III, an offence of demanding with menaces, went ahead to convict the appellant on counts I, II and IV on the basis of the same evidence. According to counsel, that amount to approbation and reprobation which is not supported by the law. He referred to NYAKO V. A.S.H.A (2017) 6 NWLR (PT. 1562) 347 (SC). He argued that since the Court held that there is no conclusive evidence to show that it was Henry Anyadike that was called by the kidnappers, the entire evidence of PW2 that a case was reported to the police and they went to rescue the victims based on a call from Henry Anyadike are all falsehood, having no foundation to stand on. He submitted that failure to call Shedrack Anyadike and Elvis Alfred who according to him were the victims of the crime and are material witnesses is also fatal to the case of the prosecution.

In his response, the respondent’s counsel submitted that the evidence on record established all the elements of the offence upon which the appellant was convicted. On the elements of the offence of kidnapping, he referred to OKASHETU V. STATE (2016) ALL FWLR (PT 861) PG 1262 AT 1268 R.5. OLADIPUPO v STATE (2014) ALL FWLR (PT. 712) PG 1727 AT 1731 R5. He submitted that it is not in doubt from the evidence on record that PW1 was kidnapped as it is trite law that the offence of kidnapping is complete when the victim is carried away against his wish. He further submitted that the appellant not only admitted his involvement in the offence in Exhibit J, he also stated the amount of ransom to be paid. He argued that the appellant may not necessarily be among those who did the kidnapping of PW1 and the co-victim at the point of kidnapping but he belongs to the gang of kidnappers. Counsel also argued that by virtue of Section 7 of the Criminal Code Law, the appellant partook in the offences wherein he is convicted by the trial Court. According to counsel, the reliance of the lower Court on exhibit J to convict the appellant cannot be faulted as the said retracted confessional statement fully satisfied the conditions required by law. He referred to OGUDO v STATE (2011) VOL. 202 LRCN PG 1 AT PG 11 R4.

RESOLUTION
Section 364 of the Criminal Code Law of Delta State under which the appellant was charged for the offence of kidnapping provides that:
“Any person who…..
(1) Unlawfully imprisons any person, and takes him out of Nigeria, without his consent; or
(2) Unlawfully imprisons any person within Nigeria in such a manner as to prevent him from applying to a Court for his release or from discovering to any other person the place where he is imprisoned, or in such a manner as to prevent any person entitled to have access to him from discovering the place where he is imprisoned, is guilty of a felony, and is liable to imprisonment for ten years.”
It has been firmly established by a long line of cases that for the prosecution to secure a conviction for the offence of kidnapping, it has to prove the following facts beyond reasonable doubt:
(i) That the victim was seized, and taken away by the accused person.
(ii) That the victim was taken away against his consent.
(iii) That the victim was taken away without lawful excuse.
See OKASHETU V. STATE (SUPRA), (2016) LPELR- 40611(SC) AT 15-16 (F- B).

On the offence of kidnapping, the lower Court considered the evidence of PW1, PW2 and the Exhibit J, the confessional statement of the appellant. The Court held that all the elements of the offence were proved beyond reasonable doubt.

The evidence of PW1 was clear and unequivocal. He narrated vividly the events that happened from the time he and the co-victim were attacked and taken away in the car he was driving up to the time they escaped and the eventual arrest of the appellant and his co-convict. His evidence was not discredited under cross-examination. The evidence of PW2 confirmed the circumstances which led to the arrest of the appellant and his co-convict. The confessional statement of the appellant also confirmed his arrest when he and his co-convict went to the bush where PW1 and co-victim were chained to a tree as they had been doing in the previous days. The sum total of the appellant’s statement is that his role was to guard persons kidnapped and held hostages which role he performed in the instant case. I stated earlier that PW1 could not have seen the faces of the people guarding him and his friend in the bush. However, when he escaped, he told the police that he was sure that the two persons who had been guarding them would come to the bush in the morning as they used to do. The appellant and his co-convict came as usual. Upon their arrest, the police conducted a search at the camp and recovered various items including ammunitions. The appellant stated that they were intercepted by men of Anti-Terrorism Squad Base 5, Warri where the kidnappers used to keep and guard the hostages. The confession of the appellant about his role in the kidnapping was direct, positive and unequivocal.

Where an accused person by his confessional statement identifies himself as a participant in the commission of an offence, his identity and participation in the offence charged become a non-issue because a free and voluntary confession is the strongest evidence against an accused. See PHILIP V. STATE (2019) LPELR-47388(SC) AT44-45(D-E). The lower Court subjected the appellant’s statement to the tests laid down by law to ascertain the truth or otherwise of the statement and held that the appellant’s confession is consistent with other ascertained facts which were established before the Court. The findings and conclusion of the lower Court are unassailable.

When the prosecution sought to tender the appellant’s statement as an exhibit, the appellant’s counsel raised objection on the ground that the signature on the statement is not that of the appellant. The lower Court in line with the principle established by a plethora of decided cases admitted the statement in evidence. If an accused person resiles from his confessional statement it is his duty to explain to the Court as part of his defence the reason for the inconsistency. See ADISA V. STATE (2015) 4 NWLR (PT.1450) 475, OKOH V. STATE (2014) LPELR-22598 (SC) AT 28-29 (F-E), (2014) 8 NWLR (PT.1410) 502, ILIYASU V. STATE (2015) LPELR-24403(SC) AT 72(A-D), (2015) 11 NWLR (PT. 1469)26. In his evidence before the Court, the appellant admitted that he made a statement to the police and what he told the Court was what he told the police. He denied being arrested in the bush. He said he entered a vehicle on his way from work that day. When the vehicle got to where he wanted to disembark, the vehicle refused to stop and he later found himself in the cell. That incredible story is monumentally contradictory to the content of his statement. Since Exhibit J was not challenged in any way and the lower Court subjected it to the laid down tests and found it to be true, the lower Court was correct to rely on it along with the evidence of PW1 and PW2 to convict the appellant for conspiracy to kidnap and kidnapping. The appellant’s statement leaves no room for any doubt about his participation in the crime.

The complaint of the appellant on the failure to call Elvis Alfred, co-victim of the crime, Henry Anyadike and the officers of the Nigeria Army is a non-starter. First, the appellant was not charged for the kidnapping of Elvis Alfed. Secondly, the law is settled that an accused can be convicted on the evidence of one witness provided the evidence is legally admissible, cogent and credible and sufficiently established all the elements of the offence charged. In the instant case, the most important witness is the person who is the subject of the charge and that is PW1. The prosecution did not need to parade an array of witnesses to prove its case against the appellant.

The appellant’s counsel made heavy weather of the fact the Court discharged and acquitted the appellant in respect of count 3 and argued that the appellant ought to have been discharged in respect of counts 1 and 2. The offence of demanding with menaces is separate and distinct from the offences of conspiracy to kidnap and kidnapping. The offence of kidnapping is complete when the victim is carried away against his wish. See EWUGBA V. STATE (2017) LPELR- 43833(SC) AT 30 (B). Therefore, the offence of kidnapping started when PW1 was thrown into the boot of the car and was completed the moment he was blind folded, dragged into the bush by his captors, chained to a tree and guarded by the appellant to prevent him from escaping from his captors. The demand for ransom, torturing of the appellant and threatening to kill him if ransom is not paid constitutes a separate and distinct offence of demanding with menace. That occurred after the offence of kidnapping had been committed. The contention of the appellant’s counsel that the same evidence that formed the basis of the acquittal of the appellant on the charge of demanding with menaces was used to convict the appellant for kidnapping is misconceived and totally incorrect.
The submissions and argument of the appellant’s counsel about who reported the kidnapping to the police and suggestions that it was Shedrack Ayadike not Udeige Shedrack that was kidnapped or that no one was in fact kidnapped are fanciful imaginations of the appellant’s counsel in the face of the cogent, credible and compelling evidence of PW1 and the free, voluntary and unequivocal confession of the appellant as to his role in the kidnapping. The facts which were established beyond reasonable are that PW1 was kidnapped and the appellant participated in the kidnapping. Whether or not it was Henry Anyadike or any other person that reported the matter or the name given to the police is of no moment. The person who was kidnapped testified and his evidence was not challenged or debunked.

Section 516 of the Criminal Code Law of Delta State under which the appellant was charged for the offences of conspiracy to kidnap provides that:
“Any person who conspire 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 laws 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 punishment to which a person convicted of the felony in question is liable is less than imprisonment for seven years, then to such lesser punishment.”

On the offence of conspiracy to kidnap, the lower Court held as follows at page 112 of the record:
“To prove conspiracy, there must be a meeting of two or more minds to carry out an unlawful purpose in an unlawful manner. However, in order to prove conspiracy, it is not necessary that the accused persons should have concocted the scheme or the subject of the charge, it can be inferred from the act of the parties. See IBORI vs. STATE (2016) 9 NWLR (PT. 1571) 216 AT PARAS B-D and ATANO vs. ATTORNEY GENDEL, BENDEL STATE (1988) 2 NWLR (PT. 75) 2011. A meeting of the minds of the accused persons and their gang is easily inferred from the evidence on record.
The offence of conspiracy is embedded in the agreement or plot between the parties, it is rarely capable of direct proof. It is invariably an offence that is inferentially deduced from the acts of the parties which are focused toward the realization of their common mutual criminal purpose. See ODUNEYE vs. STATE (2001) 2 NWLR (PT.697) 311.
The prosecution has equally established the essential elements of the offence of conspiracy to commit kidnapping beyond reasonable doubt.”

The settled principle of law regarding proof of conspiracy to commit a crime is that the involvement of an accused in the commission of the offence charged can be inferred from the evidence of his actions and inactions and circumstances of the case. See SHODIYA V. STATE (2013) LPELR- 20717(SC) AT 19(A), (2013) 14 NWLR (PT. 1373) 147, OKIEMUTE V. STATE (2016) LPELR-40639(SC) AT 37-38 (G-C), (2016) 15 NWLR (PT. 1535)297, BOUWOR V. STATE (2016) LPELR-26054(SC) AT 17 (D), (2016) 4 NWLR (PT. 1502) 295.

In the instant case, the entire evidence on record clearly established the fact that there was a common intention between the appellant, his co-convict, the person referred to by the appellant as JK and other members of the kidnapping gang to carry out kidnapping and the appellant’s assigned role was to guard the kidnapped persons in the bush which he did in the instant case. The appellant was part of the planning and was assigned a specific role even before the kidnapping was carried out. The lower Court rightly found the appellant guilty of conspiracy to commit kidnapping. Issue 2 is resolved against the appellant.

The result is that the appeal is partly allowed. The appeal in respect of the conviction of the appellant for armed robbery is allowed. The part of the judgment where the appellant was found guilty of armed robbery, the conviction and sentence of death passed on him are hereby set aside. The part of the judgment where the appellant was found guilty of conspiracy to kidnap and kidnapping is hereby affirmed. The sentences passed on him for those offences are hereby affirmed.

JOSEPH EYO EKANEM, J.C.A.: I read in advance the leading judgment of my learned brother, BOLAJI-YUSUFF, JCA, which has just been delivered.

I agree with the reasoning therein which I adopt as mine in allowing the appeal in part. I abide by the consequential orders made in the leading judgment.

ABIMBOLA OSARUGUE OBASEKI – ADEJUMO, J.C.A.: I have read in advance the judgment of my learned brother MISITURA OMODERE BOLAJI-YUSUFF, JCA.

I have no hesitation in agreeing with the reasoning and conclusion arrived at by my learned brother.

I too hold that the appeal has merit and I allow the same.

I abide by all consequential order (s) in the lead judgment.