Legalpedia Citation: (2025-01) Legalpedia 32695 (CA)

In the Court of Appeal

BENIN CITY

Wed Jan 29, 2025

Suit Number: CA/B/59C/2023

CORAM

Muhammad Ibrahim SirajoJustice of the Court of Appeal

Lateef Adebayo GaniyuJustice of the Court of Appeal

Asmau Ojuolape Akanbi Justice of the Court of Appeal

PARTIES

PATRICIA ORIAREWO (A.K.A. MAMA JESSICA)

APPELLANTS

THE FEDERAL REPUBLIC OF NIGERIA

RESPONDENTS

AREA(S) OF LAW

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

SUMMARY OF FACTS

The Appellant, Patricia Oriarewo (also known as Mama Jessica), was charged with a four-count charge of trafficking in persons contrary to Sections 13(2)(b), 13(4)(c), 13(4)(d), and 18 of the Trafficking in Persons (Prohibition) Enforcement and Administration Act 2015. The trial Court had convicted the Appellant on all four counts.

The Prosecution alleged that in January 2020, the Appellant deceitfully recruited one Sarah Amen Idehen, a 26-year-old, for exploitation in Dubai. According to the Prosecution, the Appellant collaborated with one Lizzy Amanze, a Dubai-based trafficker, to facilitate the trafficking of the victim. The Prosecution claimed that Kingsley Ebhoramen, a fellow church member of both the victim and the Appellant, introduced Sarah to the Appellant after the Appellant expressed a need for young women to travel abroad.

The Prosecution further alleged that Sarah was recruited under the pretext that she would be pursuing her hairstyling business abroad. However, upon arrival in Dubai, she was forced into prostitution. The Nigerian Consulate in Dubai eventually intervened, assisting the victim’s return to Nigeria.

The Appellant denied all the charges against her. In her defense, she claimed that it was Kingsley and Sarah who approached her at church, expressing Sarah’s interest in traveling abroad. She further asserted that it was Sarah who independently sought and obtained Lizzy Amanze’s contact information. The Appellant maintained that she had no knowledge of how Sarah traveled to Dubai and denied assisting Lizzy Amanze in any act of trafficking.

During the trial, the Prosecution called two witnesses: PW1, the Investigating Officer, and PW2, Kingsley Ebhoramen. The Prosecution tendered two documents as evidence: the retracted statement of the accused (Exhibit A) and a letter titled “Transfer of Suspect(s)/Victim(s)” (Exhibit B). The Defendant testified as the sole witness for the defense.

The High Court of Edo State, per Hon. Justice Geraldine Imadegbelo, found the Appellant guilty on all four counts on February 9, 2023. Dissatisfied with the judgment, the Appellant appealed to the Court of Appeal.

HELD

1. The appeal was allowed.
2. The Court held that the Prosecution failed to prove all the essential elements of the offences charged beyond reasonable doubt.
3. The Court found that the failure to call the victim, Sarah Amen Idehen, as a witness was fatal to the Prosecution’s case, as she was a vital witness whose testimony was crucial to establishing the elements of deception and exploitation.
4. The decision of the High Court of Edo State delivered on February 9, 2023, convicting the Appellant was set aside.
5. The Appellant was discharged and acquitted.

ISSUES

1. Whether the learned trial Court was right in convicting the Accused when the vital ingredients of the offence were not proved?
2. Whether the learned trial Court was right in convicting the Accused person/Appellant when vital witnesses were not called to give evidence?
3. Whether the learned trial Court was right when the Accused person/Appellant was convicted based on her alleged confessional statement and nothing more?

RATIONES DECIDENDI

BURDEN OF PROOF – STANDARD OF PROOF IN CRIMINAL TRIALS

“My Lords, I think a most convenient place to start in resolving this issue is to state categorically that in criminal proceedings, the onus is always on the prosecution to establish the guilt of the accused beyond reasonable doubt. The prosecution will readily achieve this result by ensuring that all the necessary and vital ingredients of the charge are proved by evidence. It has to be noted that under our system of criminal justice, an accused person is presumed innocent until he is proved guilty. There is therefore no question of an accused person proving his innocence before a law Court. The duty of the prosecution is to prove the charge against an accused person beyond reasonable doubt. I must emphasize that it is not proof beyond every shadow of doubt but beyond reasonable doubt. See Uche Williams V. The State (1992) 10 SCNJ 74, Yongo V. COP (1992) 4 SCNJ 113, Ogundiyan V. The State (1991) 3 NWLR (Pt.181) 519.” – Per ASMAU OJUOLAPE AKANBI, J.C.A.

ELEMENTS OF OFFENCE – NECESSITY OF PROVING ALL ELEMENTS OF OFFENCE

“For the evidence to be adduced by the prosecution in the discharge of the burden of proof in any of these ways or means to be said have completely displaced the presumption of innocence in favour of an accused person and proved his guilt beyond reasonable doubt as required by law, all the material ingredients or elements which constitute the offence/s with which he was charged before the Court, must be established together or conjunctively. Where anyone of such ingredients or elements was not satisfactorily proved or established by credible, reliable and sufficient evidence adduced by the prosecution, then the standard of proof required by the law would not be satisfied or met and a reasonable doubt will be created thereby which entitles the accused person to an acquittal on ground of failure of proof beyond reasonable doubt.” – Per ASMAU OJUOLAPE AKANBI, J.C.A.

CONFESSIONAL STATEMENT – EFFECT OF RETRACTION OF CONFESSIONAL STATEMENT

“The fact that an accused person denies making a confessional statement to the police does not render such extra-judicial statement inadmissible merely because the accused person denies having made it. What the Court is expected to do to determine the weight to be attached to a retracted confessional statement is to test its truthfulness and veracity by examining the said statement in the light of other credible available evidence. See per Okoro, JSC in Alao V. State (2019) LPELR-47856(SC) (PP. 23-24, E).” Per SANKEY, J.S.C in STATE v. MOSES (2024) LPELR-62577(SC) (Pp. 35-37 paras. F)” – Per ASMAU OJUOLAPE AKANBI, J.C.A.

VITAL WITNESS – DEFINITION AND EFFECT OF FAILURE TO CALL:

“A vital witness is a witness whose evidence is fundamental, in that it determines the case one way or the other. Failure to call a vital witness by the prosecution is fatal to the prosecution’s case. See STATE V. NNOLIM (1994) 5 NWLR (Pt. 345). Furthermore, failure to call vital witness raises the presumption under Section 149(d) of the Evidence Act that had he been called, the evidence he would have led would have been unfavourable to the prosecution.” Per RHODES-VIVOUR, JSC (Pp. 28 – 29, paras E – A).” – Per LATEEF ADEBAYO GANIYU, J.C.A.

VITAL WITNESS – EFFECT OF FAILURE TO CALL VICTIM AS WITNESS

“It is the law that the duty of the prosecution in a criminal trial is to establish the guilt of the defendant beyond reasonable doubt and in so doing, the prosecution is not obliged to call any number of witnesses or a host of witnesses but, only such number as it requires to prove its case. See BUSARI V THE STATE (2015) 5 NWLR PT. 1452, 343 AT 368 – 370. While the prosecution may dispense with any witness it deems non-essential, the onerous duty placed on it to establish the guilt of a defendant in a criminal trial requires the prosecution to call all vital witnesses in proof of its case. A vital witness is a witness whose evidence may determine the case one way or the other, and failure to call a vital witness is fatal to the prosecution’s case. See OCHIBA VS. STATE (2011) LPELR-8245(SC), ONAH VS. THE STATE (1985) 3 NWLR (PT.12) 236 and STATE VS. NNOLIM (1994) 5 NWLR PART 345 PAGE 394. In other words, a witness who knows something significant about a matter is a vital witness and the evidence of such witness whose evidence goes to the root of the ingredients and elements of the offence charged is a vital evidence. See SHURUMO VS. STATE (2010) LPELR-3069(SC), (2010) 19 NWLR PART 1226 PAGE 73 and STATE VS. ALIYU (2022) LPELR-59477(SC). In the instant case, the victim of the crime charged is certainly a vital witness and the failure of the Appellant to call the said victim is not only fatal, it is unpardonable.” – Per ASMAU OJUOLAPE AKANBI, J.C.A.

PROOF OF DECEPTION – NECESSITY OF VICTIM’S TESTIMONY

“Upon a review of the evidence presented at the trial Court, I find no clear, cogent, or credible evidence establishing the element of deception or fraud on the part of the Appellant. Neither the testimony of PW1 (the IPO) nor that of PW2 (Kingsley Ebhoramen) provided sufficient clarity as to how the victim, Sarah, was deceived by the Appellant.” – Per ASMAU OJUOLAPE AKANBI, J.C.A.

CONFESSIONAL STATEMENT – REQUIREMENT OF DIRECT ADMISSION

“For a confession to form the basis of a conviction, it must be direct, positive and unequivocal as to the commission of the offence by the accused person. It must also contain some or all of the elements of the offence with which the accused person is charged. It must also have been voluntarily made. See Adeyemi Vs The State (2014) 13 NWLR (Pt. 1423) 132, Gira Vs The State (1996) 4 NWLR (Pt. 443) 375.” – Per ASMAU OJUOLAPE AKANBI, J.C.A.

ELEMENTS OF OFFENCE – DISJUNCTIVE NATURE OF STATUTORY PROVISIONS

“By the reading of this provision, a defendant must have engaged in one or more of the following activities; recruitment, transport, transfer, harboring or receipt of a person and this action must have been carried out by any of the following means, abduction, fraud, deception and abuse of power or a position of vulnerability for the purpose of exploitation. I must state here that contrary to the submission of the Appellant’s Counsel, the activities and means in the above provision are disjunctive and not conjunctive. It therefore means that the Prosecution is only required to prove that one or more of the activities stated therein are done by any of the means.” – Per ASMAU OJUOLAPE AKANBI, J.C.A.

SPECULATION BY COURT – PROHIBITION AGAINST FILLING GAPS IN EVIDENCE

“The law is trite that Courts are not permitted to speculate in the absence of evidence. Courts are bound to rely only on evidence properly adduced before them and are prohibited from filling in gaps or making assumptions and this Court is no exception.” – Per ASMAU OJUOLAPE AKANBI, J.C.A.

DUTY OF DILIGENT PROSECUTION – REQUIREMENT OF COMPREHENSIVE EVIDENCE

“Before concluding this judgment, permit me my lords to state that the Prosecution in this case fell short of the required diligent prosecution of the offence. It was inexplicable that the prosecution failed to call a vital witness such as the victim to explain what transpired between her and the Appellant, and more importantly, to state her experience in Dubai. Assuming the victim was unavailable to be called as witness, the Respondent ought to have obtained and tendered the report of the investigation conducted in Dubai which led to the rescue and subsequent transportation of the victim to Nigeria.” – Per ASMAU OJUOLAPE AKANBI, J.C.A.

VITAL WITNESS – IMPORTANCE OF VICTIM’S TESTIMONY IN HUMAN TRAFFICKING CASES

“In the case at hand, the Appellant’s victim – Sarah Amen who was listed as a witness for the prosecution is a vital witness whose evidence will no doubt determine this case one way or the other and the prosecution has no right to withhold her evidence without any explanation.” – Per LATEEF ADEBAYO GANIYU, J.C.A.

METHODS OF PROVING CRIMINAL OFFENCE – REQUIREMENTS OF EVIDENCE

EXPLOITATION – NECESSITY OF DIRECT EVIDENCE

EXPLOITATION – NECESSITY OF DIRECT EVIDENCE

“It is pertinent to emphasize once again that the Prosecution’s failure to ensure the victim’s appearance in Court to provide testimony was detrimental to its case. It is surprising that the Prosecution failed to call the victim as witness even after obtaining and filing her written deposition on oath. Thus, learned Counsel for the Appellant is on solid ground in asserting that the victim was a vital witness in this matter. Her testimony would have provided direct evidence of the nature and purpose of her recruitment, especially considering the fact that she successfully traveled to Dubai.” – Per ASMAU OJUOLAPE AKANBI, J.C.A.

CASES CITED

STATUTES REFERRED TO

• Trafficking in Persons (Prohibition) Enforcement and Administration Act 2015
• Evidence Act 2011
• Constitution of the Federal Republic of Nigeria 1999 (as amended)

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