Legalpedia Citation: (2023-12) Legalpedia 73565 (CA)

In the Court of Appeal

Holden At Calabar

Wed Dec 6, 2023

Suit Number: CA/C/238C/2019

CORAM

Hamma Akawu Barka Justice, Court of Appeal

Balkisu Bello Aliyu Justice, Court of Appeal

Peter Chudi Obiora Justice, Court of Appeal

PARTIES

1. ISAAC MOSES BEKEBAN

APPELLANTS

THE STATE

RESPONDENTS

AREA(S) OF LAW

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

SUMMARY OF FACTS

​The Appellant herein was the 3rd accused person before the trial Court after being charged with the offenses of Kidnapping and Conspiracy in a four count charge.

On the 14th of January, 2016, (Pw5) Joseph Tommy Ikot of Afia Nsit village in Eket Local Government Area, and his friend Mfon Effiong Etuk (PW6) from Mbiabong in Ikono Local Government Area, both in Akwa Ibom State were kidnapped between 6.30pm and 7.00pm at a drinking bar parlour near Eket Sports Stadium by four armed men. They were taken in a Nissan Primera Car, PW5 in the boot of the car while PW6 was forced into the back seat, and driven to a jetty where they were transferred into a waiting boat blindfolded and ferried into their hide out in the creek near Calabar.

Thereafter, the gang of kidnappers negotiated for ransom with the families of the victims, who eventually paid the sum of N8,900,000.00 (Eight Million, Nine Hundred Thousand Naira) to the kidnappers in order to secure their release after 12 days in captivity.

The trial court passed the vexed judgment on the 29th November, 2018 convicting the Appellant of three charges hence the instant appeal.

HELD

Appeal dismissed

ISSUES

Whether from the totality of the evidence adduced at the trial the prosecution has proved his case against the appellant beyond reasonable doubt?

RATIONES DECIDENDI

BURDEN OF PROOF – BURDEN OF PROOF IN CRIMINAL TRIALS

It is trite law that in criminal trials, the burden of proof is always on the prosecution who must prove the guilt of the accused beyond reasonable doubt. This flows from the constitutional provision which presumes an accused person innocent until proven guilty. The burden can only be discharged where the guilt of the accused is properly established. See Idemudia vs. State (1999) 7 NWLR (pt. 610) 202 and Nweze vs. The State (2017) LPELR – 42344 (SC). The proof required does not transcend to proof beyond any iota of doubt, but that all the ingredients of the charge are established within compelling and conclusive evidence which translates to a standard of a high degree of probability. See Mathew Thomas vs. State (2017) LPELR – 41735 (SC), Adewale Joseph vs. State (2011) 6SCNJ 222 @ 235, Nasiru vs. The State (1999) 2NWLR (pt. 589) 87 @ 98, Musa vs. The State (2022) 3NWLR (pt. 1817) 285 @ 309.  – Per H. A. Barka, JCA

PROSECUTION – WAYS THE PROSECUTION ESTABLISH THE GUILT OF THE ACCUSED

The prosecution in an attempt to establish the guilt of an accused, usually adopts one or a combination of the following methods in proving the guilt of an accused person, i.e

1. Confessional statement

1. Eye witness account of a witness, and

iii. Circumstantial evidence

See Igabele vs. State (2006) 2SC (pt. 11) 61, Olaoye vs. The State (2018) LPELR – 43601 (SC), Adio vs. The state (1986) LPELR – 183 (SC). – Per H. A. Barka, JCA

COURTS – CONDUCT OF COURTS IN DEALING WITH CRIMINAL MATTERS CONTAINING THE CHARGE OF CONSPIRACY

In the treatment of this appeal therefore, involving a charge based on conspiracy and kidnapping, this Court per Mustapha JCA in Ijifa vs. The State (2019) 16 NWLR (pt. 1697) 45 @ 67, on whether a charge of conspiracy and the substantive offence can be sustained in an indictment held that: –

“advisedly, a Court is expected in such cases to first deal with the latter, that is the substantive charge, and then proceed to see how far the conspiracy charge had been made out in answer to the fate of the charge of conspiracy as it were. See Sansani & Anor vs. The State (2016) LPELR – 40257 (CA), Osetola vs. State (2012) 17NWLR (pt. 1329) 251 and Jimoh vs. State (2014) 10NWLR (pt. 1414) 105. Failure to prove the substantive offence of kidnapping does not make a conviction for conspiracy inappropriate as it is a separate and distinct offence independent of the actual offence conspired to be committed. Segun Balogun vs. AG Ogun State (2002) 6NWLR (pt. 763) 512.”

I see a lot of wisdom in the approach and consequently elect to deal with the substantive offence before venturing to consider that aspect on conspiracy. – Per H. A. Barka, JCA

 

KIDNAPPING – INGREDIENTS OF THE OFFENSE OF KIDNAPPING

The offence of Kidnapping has the following elements.

1. That the victim was seized and taken away by the accused person(s)

1. That the victim was taken away against his consent.

iii. That the victim was taken away without lawful excuse.

See Bello Okashetu vs. The State (2016) LPELR – 40611 (SC), Ewugba vs. The State (2017) LPELR – 43833 (SC), Onianwa vs. The State (2015) LPELR – 24517 (CA). – Per H. A. Barka, JCA

 

IDENTIFICATION PARADE – WHEN AN IDENTIFICATION PARADE IS NECESSARY

It is trite law that where the victim did not know the accused person prior to the event and his first acquaintance with him was during the commission of the crime, or that the victim was confronted by the offender for a very short time, or where the victim due to time and circumstances might not have had the full opportunity of observing the features of the accused, an identification parade becomes necessary. See, Wisdom vs. The State (2019) ALL FWLR (pt. 973) 378 @ 397. The law is equally settled in that an identification parade is not necessary where there is certainty or no dispute as to the identity of the perpetrator of the crime. See Alufohai vs. The State (2014) LPELR – 24215, per Ariwoola JSC, as he then was. – Per H. A. Barka, JCA

IDENTIFICATION PARADE – WHEN AN IDENTIFICATION PARADE IS NOT NECESSARY

The Apex Court in Adebayo vs. The State (2014) LPELR – 22988 (SC) held that identification parade will not be necessary where other pieces of evidence will factor in to the conclusion that accused committed the offence. This too is the holding in Utto vs. The State (2022) 2NWLR (pt. 1814) 369 @ 400: –

“An identification parade is only necessary whenever there is a doubt as to the ability of a victim to recognise the suspect, who carried out or participated in carrying out the crime alleged or where the identity of the suspect or an accused person is in dispute. But where there is certainty or no disputer as to the identity of the perpetrator of the crime, there will be no need for an identification parade to further identify the offender. In other words, an identification parade becomes a necessity when there is a need to establish the identity of a suspect. But there are many cases where an identification parade is of no use whatsoever in identifying a suspect such as when a suspect is arrested at the scene of the crime; when the suspect is well known to the victim or witness, and when evidence adduced is sufficient to establish that the suspect is indeed the person that committed the crime.”

I agree with the lower Court as well as the learned respondents counsel that from the aggregate of the evidence adduced, the need for an identification parade became unnecessary in the circumstance and the trial Court right to so hold. Furthermore, it has been held that recognition or visual spontaneous evidence of identification of an accused person in most instances is more reliable than the identification parade. See Ochiba vs. The State (2011) 17NWLR (pt. 1277) 663, Utto vs. State (supra) @ 397. – Per H. A. Barka, JCA

 

CONTRADICTIONS – CONDUCT OF COURTS TO DIFFERENT DEGREES OF CONTRADICTIONS IN THE CASE OF THE PROSECUTION

Indeed, it is the state of the law, that where doubts exist in the prosecution’s case, such doubts should ennur in favour of the accused person. It has therefore been held that it is not in all cases where there are discrepancies or contradictions in the prosecution’s case that an accused will benefit therefrom. It is only when the discrepancies or contradictions are on material grounds which create some doubts that the accused is entitled to benefit therefrom. See Adoba vs. State (2019) ALL FWLR (pt.977) 1 @ 25.

The nature of the contradictions that would be fatal must relate to material facts and must also be substantial, dealing with the real substance of the case. It must affect the live issue or issues in the case to the extent that the judgment would be given in favour of the party who called the contradictory evidence. See Kawu vs. The State (2020) 13 NWLR (pt. 1740) 39 @ 59.  – Per H. A. Barka, JCA

 

CONSPIRACY – INGREDIENTS OF THE OFFENSE OF CONSPIRACY – DUTY OF THE PROSECUTION IN ESTABLISHING CONSPIRACY

The position of the law is that conspiracy is hardly proved through direct evidence therefore it is basically an inferential offence. In other words, conspiracy is an offence usually not provable with direct evidence since the meetings of the conspirators are done secretly and not within sight of other persons. Therefore, it is discernible from other acts of any of the parties or all of them. However, the prosecution must, with the use of surrounding circumstances, establish two essential ingredients of the offence which are:

(a) That there was an agreement between the accused persons to execute an agreed act;

(b) That the agreed act is unlawful.

The prosecution must prove that the persons charged or the one charged along with others at an unlawful act. The common intention must be present. In the instant case, the prosecution proved the essential elements of the offence of conspiracy against the appellant irrespective of the absence of the co-conspirators to answer to the charge.

See Martins vs. The State (2020) 5 NWLR (pt. 1716) 58 @ 86. – Per H. A. Barka, JCA

 

CONSPIRACY – THE EVIDENCE OF CONSPIRACY IN A CRIMINAL MATTER

In Njovens V State (1973) 5 SC 12, the Court had said “that the overt act or commission which evidences conspiracy is the actus reus and the actus reus of each and every conspirator must be referable and very often is the only proof of the criminal agreement which is called conspiracy.” – Per H. A. Barka, JCA

CASES CITED

STATUTES REFERRED TO

1. Evidence Act
2. Criminal Code Cap 38 vol.2 Laws of Akwa Ibom State of Nigeria 2000
3. Akwa Ibom State Internal Security and Enforcement Law 2009

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