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Acquittal or conviction of someone in criminal trial involving more persons does not automatically translate to acquittal or conviction of others

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BERNARD EFE AJOMAYAN v. THE STATE
CITATION: (2020) LPELR-49598 (CA)

 
In the Court of Appeal
(Calabar Judicial Division)
On Thursday, 7, May 2020
Suit No: CA/C/455C/2018
 
Before their Lordships:
 
MOJEED ADEKUNLE OWOADE, JCA
ITA GEORGE MBABA, JCA
HAMMA AKAWU BARKA, JCA
 Between
 BERNARD EFE AJOMAYAN                                                 -Appellant/cross respondent
 And
 THE STATE                                                                              -Respondent/cross appellant
 
LEAD JUDGMENT DELIVERED BY ITA GEORGE MBABA, J.C.A.
 
FACTS OF THE CASE
At the Akwa Ibom State High Court, the appellant was tried (as 1st accused person) for the offences of conspiracy contrary to Section 552 of the Criminal Code Cap 38, Vol. 2, Laws of Akwa Ibom State of Nigeria, 2000, kidnapping contrary to Section 1(1) (a) and (2) of Akwa Ibom State Internal Security and Enforcement Law, 2009, and aiding kidnapping contrary to Section 10(1) (d) and (2) of the Akwa Ibom State Internal Security and Enforcement Law, 2009.
 


The facts of this case at the High Court shows that PW1, a medical doctor, was kidnapped at his Clinic at, No. 10 Idak Okpo, Lane Uyo, Akwa Ibom State on March 19, 2015 by kidnappers, who decoyed as patient(s), bought ticket (card) to see the doctor on consultation, and on being ushered in to see the doctor, by the PW2 (who was the staff on duty at the reception), they (kidnappers) pulled out guns, ransacked the clinic, stole property and walked the doctor away into his car, and zoomed off. On being informed of the kidnap, the police swung into action and sent signals to other States – particularly neighbouring States of Rivers, Abia and Cross River States. The appellant and his co-accused (that is, 1st to 4th accused) were arrested in Rivers State at a road checkpoint, as they were escaping with their loot, after forcing a ransom of N1 million out of the family of the doctor (PW1). They were caught with the said N1million ransom, and the personal effect (property) of the doctor, which they took away at the time of kidnap, including his International Passport, Zenith Bank Plc cheque book, voter’s card, driving licence and National Identification Card. After taking evidence from the witnesses and listening to the addresses of counsel, in a considered decision, the High Court convicted the appellant on Count 2 and sentenced him to death. Aggrieved, the appellant appealed to the Court of Appeal.

MAIN APPEAL FOR ISSUES FOR DETERMINATION
The Court determined the appeal on a sole issue thus:
“From the totality of the evidence adduced at the trial, including the confessional statement by the appellant (Exhibit A), did the prosecution prove beyond reasonable doubt, that PW1 was kidnapped and that appellant was one of the kidnappers?”

APPELLANT’S SUBMISSION
Arguing the appeal, learned counsel for the appellant said that the law requires confession to be free and voluntary, direct and positive, and properly tested and proved for it to sustain a conviction. He relied on the case of Buba Vs State (1992) 1 NWLR (Pt.215) 19. He also relied on Ajiboye Vs FRN (2018) LPELR – (44468) SC, on the conditions for the admissibility of a confessional statement, and submitted that the Exhibit A (extra judicial statement of appellant) did not satisfy the conditions stipulated by law; he said that it was in evidence that appellant was arrested in Rivers State on April 5, 2015 and transferred to Uyo on the same day, but that the respondent could not explain how investigations concluded on April 6, 2015 and a report made, which was admitted in evidence as Exhibit L and the Exhibit L contained statement of the accused person, made about 19 days after the investigation was concluded. The statement was made precisely on April 23, 2015 and admitted as Exhibit A.

On the issue of the identification of the appellant by prosecution for the first time in the dock, appellant’s counsel said the respondent failed to lead credible evidence to prove the identity of the appellant as one of the kidnappers of Dr. Usen Bassey Akpan on March 19, 2015. He relied on Idowu Vs State (2011) LPELR – 3597 (CA), to say that the prosecution failed to lead substantial, cogent and credible evidence linking the appellant to the offence. On the issue of whether the High Court was right to fail to resolve the doubts created by the prosecution in favour of appellant, counsel answered in the negative. He said that the respondent failed to prove its case and the High Court based its decision on speculation. Counsel urged the Court to resolve the issues for appellant and allow the appeal.

RESPONDENT’S SUBMISSION
Arguing the issue, Counsel for the respondent argued that the prosecution had proved the offence of kidnapping against the appellant beyond reasonable doubt, through the evidence of PW1, PW2, PW3 and the confessional statement of the appellant (Exhibit A). Counsel relied on the case Umoh Vs The State (2013) LPELR – 21410 CA. Counsel relied on the cases of Okashetu Vs State (2016) 15 NWLR (Pt.1534) 126 at 148 and Ewugba Vs State (2018) 7 NWLR (Pt.1618) 626 to state the ingredients of the offence of kidnapping which must be proved beyond reasonable doubt. Counsel further argued that the evidence of PW1, PW2 and PW3 were not contradicted and/or controverted during cross-examination and so remained strong, cogent and reliable, and liable to be believed by the High Court. Furthermore, counsel said the appellant’s statement to the Police admitted after trial within trial, confirmed the kidnap of PW1. Counsel submitted that there can be no account of the commission of a crime more accurate than the account of an accused person, narrating how the offence was committed, and the role he played. Counsel urged the Court to resolve the appeal against the appellant.

RESOLUTION OF THE ISSUE(S)
In resolving the issues, the Court noted that the contention of the Counsel to the appellant regarding the report by the Police (Exhibit L) went to no issue. The Court said that even though appellant’s counsel argued that considering date of issue of Exhibit L, it could not have contemplated the statement of the appellant in Exhibit A, such discrepancy about the date of the Exhibit L would have any negative effect on the integrity of Exhibit A. Relying on the case of Afolabi Vs State (2016) LPELR – 40300 (SC), the Court stated the ingredients necessary for a confessional statement to be admissible and relied upon to sustain conviction. See also Kazeem Vs State (2009) ALL FWLR (Pt.256) 1773; Yunusa Vs State (2017) LPELR – 43014 (CA); The State Vs Iheanachor (2019) LPELR – 49301 (CA); Galadima Vs The State (2012) LPELR – 15530 SC. Relating the ingredients to the instant case, the Court held that Exhibit A satisfied the tests to merit its admissibility and reliance by the High Court to sustain the conviction of the appellant.

On the issue that the appellant was only identified at the dock by the prosecution and there was no identification parade conducted by the Police for the PW1 to identify the persons who kidnapped him, the Court held that the identity of the appellant was not in issue. This is because the appellant was arrested with the PW1’s personal properties and the N1million ransom money. He was also clearly recognized by both the PW1 and the PW2, who saw him (appellant) and his co-accused, at the time of the kidnapping. On the need to conduct an identification parade, the Court stated that same is only necessary where and when the victim or witness did not have opportunity to see/know the accused in some intimate way or at close range, to leave some lasting impression of the accused on the victim or witness. Such parade may be the case, where the victim or witness never met the accused before the attack and the attack lasted in a split movement, leaving no room for acquaintance and/or strong interaction. See the case of Ikemson Vs State (1989) 6 SC (Pt.5) 1 at 14; Auta Vs The State (2018) LPELR – 44490 (CA); Idowu Vs The State (2019) LPELR – 48459 CA and Akeem Agboola Vs The State (2013) 11 NWLR (Pt.1336) 619.

Applying the above to the instant case, the Court held that the circumstances above would not apply in this case because the PW1 had ample time (and days of captivity) with the accused persons, during the kidnap operation and custody and even signed cheques for them thrice, seeing the identity card of 3rd accused. The PW2, who registered the 2nd accused (in company of the 3rd accused) at the clinic during the operation by the accused, obviously had opportunity to interact with them as they waited for their turn to see PW1. The ordeal that the PW1 and PW2 went through in the clinic during the operation by the accused persons must have left lasting impressions about them (accused) in their minds.

CROSS APPEAL
The cross-appeal by the respondent was mainly on the discharge and acquittal of the appellant on the offence of conspiracy.

ISSUES FOR DETERMINATION
The cross appellant distilled a lone Issue for determination namely:
“Whether the trial Court was right in discharging and acquitting the appellant and his co-accused persons on the charge of conspiracy, when there was evidence to prove that there was a consensus or agreement between them to kidnap PW1?” The cross respondent also distilled a lone issue for determination namely: “Whether the trial court rightly discharged and acquitted the respondent on the count of conspiracy for lack of evidence in support of the charge.”

CROSS-APPELLANT’S SUBMISSION
Arguing the lone issue, counsel stated that the error in the particulars of the charge of conspiracy was not material to the case and that the error did not mislead the accused/appellant; that such error is regarded as an irregularity, which is not fatal to the proceedings. Counsel argued that all that the prosecution needs to prove under the count of conspiracy is the agreement of two or more persons to do or cause to be done an illegal act or a legal act by an illegal means and this can be proved either by direct or indirect evidence or inference from illegal act of the accused persons. He relied on the case of Njovens Vs State (1998) 1 ACLR 225 at 264. He added that offence of conspiracy requires that there should be the meeting of the minds of the accused persons, with a common intention and purpose to commit a particular offence and Exhibit A (confessional statement) proved the charge of conspiracy.

CROSS-RESPONDENT’S SUBMISSION
Arguing the lone issue, counsel to the respondent referred to the particulars of the offence in the count 1, to say that the prosecution did not prove every material averment in the charge. He said that the Court is to decide according to the fact alleged and proved. He relied on FRN Vs Barminas (2017) 15 NWLR (Pt.1588) 177. He also relied on Bello Vs C.O.P. (2018) 2 NWLR (Pt.1603) 267 and Section 258 of the Evidence Act 2011, to the effect that in criminal trial, offence is treated as facts in issue, which like other facts in issue, must be proved beyond reasonable doubt in order to secure conviction. Counsel further contended that the discharge of the 5th accused person on the entire charge (particularly count one), same benefit should have enured to the appellant too. Counsel argued that it is the law that where two or more persons charged for commission of a common offence and a common evidence is led to prove the commission of the offence and the evidence against all the accused persons is the same or similar, the discharge of one must, as a matter of law, lead to the discharge of the others. He relied on Ebri vs. State (2004) 1 NWLR (Pt. 885) 589; Okoro vs. State (2012) LPELR – 7846 SC.

RESOLUTION OF THE ISSUES
In resolving the lone issue, the Court began by holding that in criminal trial involving two or more accused persons, the conviction or acquittal of one does not, automatically, translate to the conviction or acquittal of all the others charged therein, as each accused has a separate case and the Court must rely on the evidence generated for or against each of the accused persons separately, except where the charge is inter-woven and any doubt established would accrue to all the accused persons in the Charge. See Morufu Dolanle vs. The State (2004) LPELR – 7403 (CA); Akpan & ors vs. The State (2002) LPELR – 373 (SC); Ilodigwe vs. State (2012) LPELR – 9342 (SC); Hassan vs. The State (2012) LPELR – 14358 (CA); Idiok vs. The State (2008) 6 MJSC 36 at 49.

On the issue of failure to prove the particulars of the conspiracy that the accused conspired on the March 19, 2015 at No. 10 Idak Okpo Lane, Uyo, to commit the offence, the Court held that the High Court was not unduly technical and rigid in its interpretation of the requirement of proof of particulars of the offence of conspiracy, in the circumstances. This is because the charge had, in fact, stated that all the accused persons, including the 5th accused had on March 19, 2015 conspired at No. 10 Idak Okpo Lane, Uyo to commit the offence of kidnapping and yet there was no evidence of such. Though the confessional statements of 1st to 4th accused suggest some agreement by them to kidnap the PW1, same was not reached at No. 10 Idak Okpo Lane, and was not planned on March 19, 2015 and the 5th Accused person was not part of that agreement and was not involved in the kidnap, as the High Court found out. Consequently, the Court held that, contrary to the argument of Counsel to the Cross-Appellant, the error in framing the particulars of the charge of conspiracy was fatal to the case of the prosecution. The Court cited the case of The State vs. Daniel Emeka Iheanachor (2019) LPELR – 49301 (CA) in support.

HELD
In conclusion, the Court held that both the Appeal and Cross Appeal lacked merit and they were dismissed.
Appearances
Abasiodiong Ekpenyong Esq.                                                        -For Appellant/ Cross Respondent
Uwemedimoh Nwoko Esq.
Learned A.G. AkwaIbom State                                           -For Respondent/ Cross Appellant
(who settled the brief)
 


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