Legalpedia Citation: (2023-10) Legalpedia 63442 (CA)

In the Court of Appeal

Holden at Lagos

Tue Oct 3, 2023

Suit Number: CA/LAG/CR/1227/2022

CORAM

ABUBAKAR SADIQ UMAR JUSTICE OF THE COURT OF APPEAL

PARTIES

MOHAMMED OPEYEMI BABATUNDE

APPELLANTS

THE STATE OF LAGOS

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, CRIMINAL LAW AND PROCEDURE, EVIDENCE, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The Appellant, as the 2nd Defendant in the lower Court, on the 4th of July, 2023, reported at the Lagos office of the DSS that the 1st Defendant, in the case before the lower Court, had been kidnapped by some unknown men who pretended to be prospective land buyers. Events later followed in quick succession as the same story-line was fed to the press in an Interview and even to the Police. This was later found out to be a ruse, planned and orchestrated by the Appellant and the co-Defendant in the case, for the obvious reason, to deceive the public into currying sympathy for the 1st Defendant in the case, who was said to be enmeshed in traditional title dispute in his domain which was reported to involve the State Government.

 

The Ikeja Division of the High Court of Lagos State, (the lower Court) sentenced the Appellant on the 27th day of September, 2022, to a 10-year term of imprisonment without an option of fine on the 1st count and One-year imprisonment with an option of N250,000 fine on the 2nd count. The Appellant was however acquitted on the 3rd count, to wit, false representation to release a kidnapped person. The Appellant was dissatisfied by the said decision of the lower Court and initiated the instant appeal.

HELD

Appeal allowed

ISSUES

• Whether the Learned trial Judge was right to have convicted the Appellant when the essential ingredients of the offences have been proved against him?
• Whether the Learned trial Judge was right to have sentenced the Appellant having found him guilty of the Conspiracy to commit fake kidnap?

RATIONES DECIDENDI

CRIMINAL MATTERS – BURDEN AND STANDARD OF PROOF IN CRIMINAL MATTERS

The law has long been settled that in a criminal trial, the onus of proving the guilt of the Defendant is always on the Prosecution, it never shifts. It is the duty of the Prosecution to lead evidence in proof of the essential ingredients of the offence charged, and the standard of proof required to discharge that duty is proof beyond reasonable doubt. Until that standard of proof is achieved by the prosecution, the presumption of innocence under Section 36 of the Constitution will continue to inure to the Defendant. See Section 135 of the Evidence Act; Okechukwu Nweze vs. The State (2017) LPELR-42344 (SC); The State vs. Gwangwan (2015) LPELR-24837 (SC); Ilodibe Uche vs. The State (2015) LPELR-24693 (SC); Abu Mohammed vs. The State (2020) LPELR- 52451 (SC); Yohanna Danjuma vs. The State (2019) LPELR- 47037 (SC).

 

This is only subject to a few exceptions as where there exists, an eyewitness account of the commission of the crime; voluntary confessional statement(s) of the persons accused of the crime; and also, where there is what amounts to circumstantial evidence, linking the accused person so closely within the possibility and actual commission of the alleged crime. See: Ogundiyan vs. State (1991) 3 NWLR (Pt 181) 519; Agboola vs. The State (2013). – Per M. I. Sirajo, JCA

CONSPIRACY – WHEN A CHARGE OF CONSPIRACY SHOULD FAIL

It is pertinent to state that the law is long settled that, the offence of conspiracy denotes an agreement between two or more persons to do an unlawful act or, to carry out a lawful act vide unlawful means. It must be noted in this regard that it is required for the Court to deduce a requisite inference from a certain act or set of acts, prone to being criminal in nature, as put up by a set of accused persons in pursuance of an apparent criminal intention, being common to them all and hardly confined into a particular place. It is not subject to any doubt that conspiracy, as an offence, is a separate and distinct one and always independent of the actual commission of the substantive offence planned to be committed. See Adoba vs. State, supra; Kaza vs. State (2008) 7 NWLR (Pt 1085) 125; Alufohai vs. State (2015) 3 NWLR (Pt 1445) 172.

However, I am of the respectful opinion that where a substantive offence was neither planned nor intended, a charge for conspiracy to commit the offence cannot be made out, to this end, any conviction based on such a charge, ought not be allowed to stand. My view is borne out of the belief that conviction for conspiracy must fail where ingredients for the substantive offence are grossly lacking, see: Patrick Njovens vs. The State (1973) 5 SC 17. In furtherance to my view as expressed above, the Supreme Court, in Balogun vs. State (2018) 13 NWLR (Pt 1636) 321 at 328-329, per Galinje, JSC., admonishes that,

“Where an indictment contains charges for a substantive offence and conspiracy to commit the offence, the proper step for a Court is to first deal with the charge for the substantive offence and then proceed to consider whether the charge for conspiracy ought to have been made at all and whether it is made out. This is so because, a conviction for conspiracy will fail if the conviction for the substantive offence is set aside”

 

In other words, a charge of conspiracy, which is difficult to prove by direct evidence, automatically fails where the substantive offence has not been established. See Agugua vs.The State (2017) LPELR- 42021 (SC); Osetola & Anor vs. State (2012) LPELR-9348 (SC). – Per M. I. Sirajo, JCA

COURTS – CONDUCT OF APPELLATE COURTS IN RE-EVALUATING LOWER COURT DECISIONS

It has, therefore, become necessary to look into the stated laws in order to determine the rightness or otherwise of the decision of the lower Court, which is being contested in the instant appeal, as it is settled law that decisions of Courts are borne out of the circumstance of the case of the parties to which applicable laws have been applied. – Per M. I. Sirajo, JCA

 

FAKE KIDNAP – THE APPROPRIATE SECTION OF KIDNAPPING PROHIBITION LAW OF LAGOS STATE THAT APPLIES TO A MATTER OF FAKE KIDNAP

The lower Court, while sentencing the Appellant, relied on Section 3 of the Kidnapping (Prohibition) Law of Lagos State, which provides that, “Where two or more persons conspire to commit the offence of kidnapping, each offender shall on conviction be liable to twenty (20) years imprisonment”. I am in agreement with counsel for the Appellant that, assuming the Appellant was to be charged with the offence of conspiracy for fake kidnap, the appropriate section of the law ought to be Section 5 of the Kidnapping Prohibition Law of Lagos State, which provides that:

“A person who overtly or covertly puts himself forward to be kidnapped or abducted by another for the purpose of extracting money or any ransom, from another or for any other reason, commits an offence and shall be liable on conviction to fourteen (14) years imprisonment”  – Per M. I. Sirajo, JCA

 

COURTS – CONDUCT OF COURTS WHEN A SET OF ACTS IS CAPABLE OF GROUNDING DIFFERENT OFFENCES

I am of the opinion that when a set of acts or conducts is capable of grounding different offences, it will suffice when the offender is convicted and sentenced for either of the offences and not made to suffer double punishment. – Per M. I. Sirajo, JCA

COURTS – CONDUCT OF COURTS IN CONVICTING ACCUSED PERSONS

The Supreme Court, in Okonofua & Anor vs. The State (1981) 6-7 SC 1, cautioned that, even where a Court would convict an accused person for any offence, other than for which he was charged, such person must be informed timeously of the anticipated offence, in order that he will be afforded the requisite opportunity to prepare his defence thereto. I find as apt, in this regard, the decision of this Court in Adesanya vs. FRN (2012) LPELR- 7926 (CA), also cited by the Appellant, that no man shall be convicted, sentenced or be made to suffer deprivation in liberty or property, unless for an offence for which he has been charged, tried and found guilty. See also Section 166 of the Administration of Criminal Justice Law of Lagos State, 2011; Nggilari vs. State & Ors (2017) LPELR-42985(CA); Chiwobi vs. FRN (2019) LPELR – 47239 (CA).

Further still, it is the law that an offender is punished only under a written law, which must not only plainly stipulate the offence but must clearly state the deserving punishment prescribed thereto. See: Aoko vs. Fagbemi (1961) ANLR 400. – Per M. I. Sirajo, JCA

 

CONSPIRACY – CONDUCT OF COURTS TO A CHARGE OF CONSPIRACY

It is my respectful view that notwithstanding the fact that conspiracy is a separate and distinct offence in itself, to the extent that even failure to prove the substantive offence does not make a conviction for conspiracy inappropriate, still the law does not robe conspiracy; as head of an offence, in a garb of exclusivity, it must still relate to the fact whether there exist ingredients to indicate that the substantive offence was jointly contemplated. – Per M. I. Sirajo, JCA

MISCARRIAGE OF JUSTICE – MEANING OF MISCARRIAGE OF JUSTICE

The Supreme Court, on what amounts to a miscarriage of justice, stated the law that if a Court goes out of the proceedings before it and resort to import and rely on extraneous matters on which it predicates its decision, the natural consequence of this cloistered justice is a miscarriage of justice. See: Ugboji vs. State (2017) LPELR-43427 (SC); Benjamin vs. Kalio (2006) ALL FWLR (Pt 920) 10 @ 29-30. Where an Appellant was convicted under separate offence from that which he was charged, it will amount to nothing more than a cloistered justice, and it is settled law that a decision that occasions a miscarriage of justice is also perverse. Ugboji vs. State (supra). – Per M. I. Sirajo, JCA

CASES CITED

STATUTES REFERRED TO

• Constitution of the Federal Republic of Nigeria 1999 (as amended)

• Kidnapping Prohibition Law of Lagos State 2017

• Criminal Law of Lagos State 2015

• Administration of Criminal Justice Law of Lagos State (ACJL)

• Court of Appeal Act (as Amended)

• Evidence Act

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