Loveday Chukwudi Ahuchaogu v. The State

The appeal herein is against the judgment of the Court of Appeal, Owerri Division in appeal no. CA/OW/275/2012 delivered on 7th April, 2017 wherein the Court dismissed the Appellant’s appeal against the judgment of the High Court of Abia State which had convicted the Appellant for the offences of conspiracy, kidnapping, murder and robbery and sentenced him to death for murder and various terms of imprisonment for the other offences.

SYNOPSIS OF FACTS
The facts culminating in the instant appeal can be summarised thus:
The Appellant as accused person was arraigned, tried and convicted before the High Court of Abia State on a four-count information bordering on conspiracy, kidnapping, murder and robbery. After trial and adoption of final written addresses, but before judgment, the information was amended and the Appellant again pleaded not guilty to all the counts. The amended information reads thus:
“STATEMENT OF OFFENCE – COUNT ONE
CONSPIRACY contrary to Section 516A of the Criminal Code Cap 30 Vol. II Laws of Eastern Nigeria 1963, as amended, applicable in Abia State.

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PARTICULARS OF OFFENCE
LOVEDAY CHUKWUDI AHUCHAOGU and others now at large on the 28th day of July, 2008 at Umudike Ikwuano in the Umuahia Judicial Division conspired amongst yourselves to commit a felony to wit: kidnapping.
STATEMENT OF OFFENCE – COUNT TWO
KIDNAPPING contrary to Section 364 of the Criminal Code Cap 30 Laws of Eastern Nigeria 1963 applicable in Abia State.
PARTICULARS OF OFFENCE
LOVEDAY CHUKWUDI AHUCHAOGU and others now at large on the date and place in the aforesaid Judicial Division, kidnapped one Francis Ajayi for the purposes of payment of ransom.
STATEMENT OF OFFENCE – COUNT THREE
MURDER contrary to Section 39(1) of the Criminal Code Cap 30 Vol. II Laws of Eastern Nigeria applicable in Abia State.
PARTICULARS OF OFFENCE
LOVEDAY CHUKWUDI AHUCHAOGU and others now at large on the same date and place in the aforesaid Judicial Division murdered one Francis Ajayi.
STATEMENT OF OFFENCE – COUNT FOUR
ROBBERY, contrary to Section 1(1) of the Robbery and Firearms Special Provisions Act Cap 398 Laws of the Federation of Nigeria 1990, applicable to Abia State as amended by Decree No.

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62 of 1999.
PARTICULARS OF OFFENCE
LOVEDAY CHUKWUDI AHUCHAOGU and others now at large on the same date and place in the aforesaid Judicial Division robbed Francis Ajayi of his dark blue Opel Omega car with registration number AJ 853 GWA, laptop computer and other personal effects.”

In an attempt to prove the offences against the Appellant, the Respondent called four witnesses. Chima Njoku, an accountant with United Bank for Africa (CIBA), Aba Road Branch, Umuahia; Mrs Veronica Ajayi, the wife of Mr Francis Ajayi, the deceased victim; Mbama Sunny Nnamdi, the IPO who was an officer of the SSS; and Mr Abraham Lang, a friend of the victim; all of whom testified as PW1, PW2, PW3 and PW4 respectively. The Appellant testified in his defence without calling any other witness.

The case as narrated by the Respondent’s witnesses was that Mr Francis Ajayi, who worked at the Forest Research Institute, Umudike, left home for work on 28th July, 2008, but never came back. He informed PW4 that he wanted to stay at his place in Umuahia between the close of work and the start of a church programme. After the close of work however, neither PW4 nor Francis

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Ajayi’s wife, PW2, heard from him. The following day, PW2 was contacted on phone by an unknown caller (the Appellant), who claimed to have kidnapped her husband. The kidnapper continued calling with both the victim’s number and another phone number and demanded for different sums of money as ransom as well as telephone recharge cards at different times from PW2, which monies were sent to the bank via local cash transfer and recharge cards sent to the phone number provided. The kidnapper also called and sent text messages to PW2 and PW4 that he and his gang members would kill Francis Ajayi if the instructions dished out were not followed.

The Appellant had on two occasions withdrawn the sums paid as ransom by PW2 via UBA local cash transfer. The transfer and withdrawal involved a process whereby after each payment, the sender (PW2) was given a PIN which she sent to the beneficiary (the kidnapper), which the beneficiary then used at the receiving bank as identification to withdraw the money. After PW2 had made two payments to the kidnapper/Appellant, PW4 took her to the State Security Service (SSS) office and a report was made. An officer of the SSS went

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to the bank with PW2 to meet the bank manager and it was agreed that PW2 should transfer N80,000.00 (Eighty thousand Naira) to the kidnappers as a bait. A caution was Placed on the account and when the Appellant attempted to withdraw the money, PW1 was alerted by the caution and he called the security officers who then arrested the Appellant.

When he was about to be arrested, the Appellant threw away a SIM card with the number that was used to call PW2 and PW4 as well as the form he had filled for the withdrawal of the ransom money, but same were recovered. The phone numbers of the two witnesses (PW2 and PW4) were found on the said SIM card.

Testifying in his defence, the Appellant stated that he was a youth corps member serving in Port Harcourt, Rivers State. He stated that his friend, one Bassey Edet, called him to come to Abia State to help him withdraw money from the bank and promised to give him some money for his effort. He said that he was given N10,000.00 after he withdrew the first ransom and N5,000.00 after he withdrew the second one. He stated that the said Bassey was lodged in a hotel room, but when he took the Police to the hotel after

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his arrest, they were told that the person lodged in the room had just left. He also stated that the said Bassey operated a computer business centre in Calabar. He said that the reason why the SIM card used to call PW2 and PW4 was found with him was because Bassey said that without it, he would not be paid the money he wanted to withdraw from the bank.

At the conclusion of trial and after the addresses of counsel, the learned trial Judge delivered a considered judgment wherein the Appellant was convicted on all the counts. The Court relied on circumstantial evidence, including the voice recognition evidence led by PW2 and PW4, the fact that the Appellant tried to hide the form he had filled and the SIM card he had with him, and the doctrine of last seen to convict the Appellant. The Court also held that assuming the Appellant was truly sent by Bassey, he could be rightly convicted for the offences charged by virtue of Section 7 of the Criminal Code. Upon his conviction, the Appellant was then sentenced to various terms of imprisonment in respect of each of counts one, two and four. The sentences were ordered to run consecutively. He was sentenced to

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death in respect of count three.

Dissatisfied by the judgment of the trial Court, the Appellant ventilated his grievance by appealing to the lower Court. Upon hearing the appeal, the Court below dismissed same and affirmed the judgment of the trial Court.

Further dissatisfied, the Appellant lodged a Notice of Appeal at the registry of the Court below, challenging the decision of the Court.

Pursuant to an order of this Court, the Appellant amended his Notice of Appeal such that the extant Notice is the Amended Notice of Appeal founded on 10 grounds. The appeal was heard on 14th December, 2023 and at the hearing, respective learned counsel for the parties adopted their briefs of argument and urged the Court to decide the appeal in line with their respective inclinations. The briefs adopted are the Appellant’s amended brief and the amended Respondent’s brief.

Learned Appellant’s counsel formulated the following issues for determination in his brief:
“1. Whether the decision of the Court of Appeal affirming the Appellant’s conviction based on the alleged voice recognition, is altogether perverse and occasioned a grave miscarriage of

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justice? (Ground Nos. 1 and 7);
2. Whether the offences charged in this case were proved beyond reasonable doubt by the Respondent as required by law to warrant the affirmation of the decision of the trial Court? (Ground Nos. 5, 6, 9 and 10);
3. Whether the circumstantial evidence in this case is cogent, positive, conclusive, complete, unequivocal and convincingly accurate as to irresistibly point to no other than the guilt of the accused? (Ground No. 2 and 8);
4. Whether the doctrine of last seen is applicable in this case? (Ground Nos. 3 and 4)

The above four issues were equally adopted by the Respondent and are also adopted by me for the determination of the appeal. I will resolve issue 1 alone, while issues 2, 3 and 4 will be resolved together as the concerns raised by the Appellant therein are intertwined.

ISSUE 1
Learned counsel for the Appellant submitted that since the circumstances of the case are such that PW2 and PW4 did not have ample opportunity to identify the Appellant, a voice identification parade ought to have been conducted to ascertain whether he was correctly identified. He submitted that the purported

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identification/recognition of the Appellant by an “Igbo accent” was shaky since an Igbo accent cannot be said to be a distinctive feature in a place like Abia State where majority of the people speak Igbo language. He submitted that the Appellant was only identified by PW2 and PW4 in the dock, thereby rendering the identification unreliable. Reliance was placed on ANYANWU V. STATE (1986) 5 NWLR (PT. 43) 612 and Blackstone’s Criminal Practice (2008). Counsel submitted that the evidence of the Respondent’s witnesses that the Appellant threw away the withdrawal form and SIM card with him when he spotted the Police is evidence of disposition rendered inadmissible by Section 77 of the Evidence Act, 2011 (as amended). Counsel made reference to the definition of “disposition” in Black’s Law Dictionary, Sixth Edition, Section 1(b) and 2 of the Evidence Act and the cases of STIRLAND V. DPP (1974) A.C. 315, R. V. CARTER, 161, J.P. 207 CA, ARUEYEE V. THE STATE (1967) NMLR 209.

In response, learned Attorney-General submitted on behalf of the Respondent that PW2 and PW4 had ample opportunity of conversing with the Appellant on phone, hence a voice identification

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parade was unnecessary. He called in aid the cases of IGHALO V. STATE (2016) LPELR- 40840 (SC), ATTAH V. STATE (2010) 10 NWLR (PT. 1201) 200, AWOSIKA V. STATE (2009) 17 NWLR (PT. 1169) 43. It was submitted that the identification of the Appellant was not by dock identification as PW2 and PW4 had stated in their extrajudicial statements made before commencement of trial that they could identify the caller by his voice and PW4 also stated in evidence that he identified the Appellant immediately he heard his voice in the bank. Learned counsel urged the Court to resolve this issue against the Appellant.

RESOLUTION OF ISSUE 1
This issue borders on the propriety of the trial Court’s reliance on voice identification evidence of the Appellant as led by PW2 and PW4 and the lower Court’s affirmation of same, as well as the inference drawn from the fact upon citing security operatives in the bank, the Appellant threw away the withdrawal form he had filled and his SIM card.

Identification evidence is evidence by which a witness relates or associates a suspect or accused person to the offence committed. It may consist of or include evidence in form of

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finger prints, handwriting, palm prints, voice, identification parade, photographs, or the recollection of the features of the culprit by a witness who saw him in the act of committing the crime which is called in question or a combination of two or more of these. It may be necessary and is often of valuable importance where the accused person was not apprehended at the scene of crime or there is a witness who had enough opportunity to see the accused person to retain some memory of his appearance or had enough chance to. hear his voice so as to be able to associate the voice with him. The sole purpose of identification evidence is to ascertain whether or not the accused person was the person who committed the offence. See FAMUYIWA V. STATE (2017) LPELR – 43836 (SC), THOMAS V. STATE (2017) LPELR-41735 (SC), STATE V. AIBANGBEE & ANOR (1988) LPELR – 3208 (SC).
Although not as common as visual identification, there is no doubt that a suspect or an accused person can be sufficiently identified by his voice. See SAMAILA V. STATE (2020) LPELR – 52448 (SC), IBE V. STATE (1992) LPELR- 1386 (SC). When there is identification evidence, spontaneous

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identification is the most preferred, it is considered highly reliable and is even more reliable than identification parade as it shows that the witness has a good recollection of the person identified. See OCHIBA V. STATE (2011) LPELR – 8245 (SC), UTTO V. STATE (2021) LPELR – 56230 (SC). Due to its reliability, spontaneous identification renders identification parade unnecessary. See ADEKOYA V. STATE (2017) LPELR-41564 (SC).

In the instant case, the unchallenged evidence of PW2 and PW4 established that the kidnapper, who they later identified to be the Appellant had called them several times. In fact, PW2 received multiple calls from him whereby he demanded ransom and phone recharge cards. PW4 also testified with certainty that despite the fact that the caller referred to himself by different names, he was sure that the voice was the same all through. Specifically, the witness said thus:
“One remarkable thing about this is that from the day I got the 1st call to the last call, it has always been with the voice of the same person. Sometimes the caller will say he is Bassey Johnson, Julius Edet and one thing that struck me was that the person was

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not speaking from Akwa Ibom or Cross River, the person had a very heavy Igbo accent.”

Furthermore, the PW4 testified that immediately he saw the Appellant in the bank, he identified him by his voice as the one who had been speaking with him on phone. Like other pieces of evidence in relation to the identification of the Appellant, the witness remained unshaken under cross-examination.

Hence, PW4’s identification of the Appellant by his voice was spontaneous. Not only that, the Appellant having spoken with both PW2 and PW4 on several occasions, they had ample time to be certain of his voice and the need for a voice identification parade was obviated. It is trite that visual identification parade becomes necessary where the victim’s first acquaintance with the accused person was during the commission of the crime, where the victim was confronted by the offender for a very short time, or where due to time and circumstances, the victim might not have had the full opportunity of observing the features of the accused. See OLAYIWOLA V. STATE (2021) LPELR-58288 (SC), MABA V. STATE (2020) LPELR – 52017(SC).

This being a case of voice recognition, the

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pertinent consideration is whether PW2 and PW4 had enough opportunity to recognize/identify the voice of the person who had been speaking with them on phone. From the facts of the case recited earlier, it is obvious that they had more than enough chance to recognize/identify him and they were certain that it was the Appellant.

The Appellant’s counsel also argued that it was in the dock that the Appellant was identified. Dock identification refers to an in-Court identification of the accused person by an eyewitness to the offence or a person who claims to be able to identify the accused person by his appearance, voice, etc. In this case however, there is nothing, absolutely nothing, that points to dock identification. The evidence on record is to the effect that the Appellant was identified spontaneously by his voice in the bank when he was attempting to withdraw the third tranche of the ransom money. Hence, the issue of dock identification is not borne out of the record and does not even arise at all.

Learned counsel for the Appellant has also argued that the two Courts below were wrong to infer that the Appellant committed the offences charged

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from the fact that he removed the SIM card from his phone and threw it away and also threw away the withdrawal form he had filled when he noticed the presence of security operatives in the bank, before same were retrieved by the security operatives. He submitted that the evidence elicited to that effect amounted to character evidence, rendered inadmissible by Section 77 of the Evidence Act, 2011 (as amended). He also referred to Sections 1(b) and 2 of the same Act. The provisions are set out below:
Section 1:
“1. Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereafter declared to be relevant, and of no others:
Provided that –
b. this section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force.”
Section 2:
“For the avoidance of doubt, all evidence given in accordance with Section 1 shall, unless excluded in accordance with this or any other Act, or any other legislation validly in force in Nigeria, be admissible in judicial proceedings to which

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this Act applies:
Provided that admissibility of such evidence shall be subject to all such conditions as may be specified in each case by or under this Act.”
Section 77:
“In Sections 78 to 82, the expression “character” means reputation as distinguished from disposition, and except as mentioned in those sections, evidence may be given only of general reputation, and not of particular acts by which reputation or disposition is shown.”
The sections appears very clear and lucid to me hence the literal rule must be applied. Without belabouring the issue, by the combined effect of the sections particularly Section 77, it is forbidden for evidence to be given of particular acts by which reputation or disposition is shown. The key words here are reputation or disposition. The word “reputation” is defined by Merriam-Webster Dictionary as:
“Overall quality or character as seen or judged by people in general.”
The same dictionary defined “disposition” in the following words:
“Prevailing tendency, mood or inclination.”
What Section 77 of the Evidence Act renders inadmissible is evidence of particular acts tending to show

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a person’s overall habit, attitude, tendency or behaviour, similar to evidence of character. The Section does not prevent a Court from drawing specific or isolated inferences from a person’s particular act or action. In this case, the evidence of the fact that the Appellant threw away the SIM card and withdrawal form, was admissible and qualified as circumstantial evidence, which is one of the ways of proving the guilt of an accused person, along with confessional statement of the accused person and direct eyewitness testimony. See BALA V. STATE (2021) 18 NWLR (PT. 1809) 576, AMOS V. STATE (2019) 1 NWLR (PT. 1653) 206, NWABUEZE V. THE PEOPLE OF LAGOS STATE (2018) 11 NWLR (PT. 1630) 201. It is not evidence of particular acts by which the Appellant’s reputation or disposition, overall attitude or behaviour was shown.

In the circumstance, the learned trial Judge was right to admit and draw inferences from the evidence that the Appellant removed the SIM card from his phone and threw it away and also threw away the withdrawal form when he noticed the presence of security operatives in the bank, and the lower Court was right to affirm the admission of the

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evidence.

There is no substance to the arguments and submissions of the Appellant on this issue. The issue is hereby resolved against the Appellant and in favour of the Respondent.

ISSUES 2, 3 AND 4
2. Whether the offences charged in this case were proved beyond reasonable doubt by the Respondent as required by law to warrant the affirmation of the decision of the trial Court?
3. Whether the circumstantial evidence in this case is cogent, positive, conclusive, complete, unequivocal and convincingly accurate as to irresistibly point to no other than the guilt of the accused?
4. Whether the doctrine of last seen is applicable in this case?

On issue 2, while admitting that the Respondent established a prima facie case against the Appellant, learned Appellant’s counsel submitted that the Appellant was able to discharge the onus which shifted to him by rebutting the prima facie case made against him. He cited the case of AROGUNDADE V. STATE (2009) ALL FWLR (PT. 469) 106. It was submitted that one of the factors considered in accepting or rejecting the evidence of a witness is spontaneity. Reliance was placed on RATTEN V. QUEEN

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(1978) AC 378. Counsel submitted that the Appellant straightaway gave explanation of the SIM card found with him, the reason why he was withdrawing on behalf of Bassey and also offered to assist the Police in apprehending Bassey. He also submitted that the Police did not properly investigate the case. It was submitted that the onus on an accused person is to introduce facts in relation to his defence, not to prove it. He called in aid the cases of ONWE V. STATE (1975) 9 – 11 SC 23; R. V. OSHUNBIYI (1961) 2 SCNLR 147. This, according to counsel, the Appellant did, but the Police failed to follow up on the helpful information provided by the him on how to apprehend Bassey.

Learned counsel also submitted that there was no evidence that Francis Ajayi is dead or that the action of the Appellant led to his death, hence the offence of murder was not proved against the Appellant beyond reasonable doubt. ABOGEDE V. STATE (1996) 5 NWLR (PT. 448) 270 was relied on. He also submitted that contrary to the finding of the Court below, the evidence of the Appellant regarding the whereabouts of Bassey was not contradictory. That while the Appellant stated that he did not

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know where Bassey resided, but he knew where he operated a computer centre in Calabar; the lower Court wrongly found that the Appellant said that he did not know Bassey’s whereabouts, but he later offered to take the Police there. He urged the Court to resolve the issue in favour of the Appellant.

Arguing issue 3, learned counsel submitted that where there is no direct eyewitness testimony, circumstantial evidence is often the best evidence against an accused person – he cited in support the case of AKINMOJU V. STATE (2000) 6 NWLR (PT. 662) 608, but argued that the circumstantial evidence led by the Respondent against the Appellant was not cogent enough to warrant his conviction by the trial Court and the affirmation of same by the Court below. He called in aid the case of MBENU V. STATE (1988) 7 SCNJ (PT. 11) 211. It was submitted that the Appellant provided information to the Police as to Bassey’s whereabouts, but the Police refused to follow up on the information. He submitted that the Appellant introduced Bassey as a person who possibly committed the offences and since there was a possibility that another person committed the offence, the Appellant

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was wrongly convicted on circumstantial evidence. Reliance was placed on THE STATE V. NAFIU RABIU (1980) 1 NCR; NWAEZE V. STATE (1996) 2 NWLR (PT. 428) 1. STATE V. AJIE (2000) 11 NWLR (PT. 678) 434.

Relying on the cases of ADEPETU V. STATE (1998) 9 NWLR (PT. 565) 185, ONUOHA V. STATE (1989) 1 NSCC 411, OFORLETE V. STATE (2000) 12 NWLR (PT. 681) 415, counsel submitted that the two lower Courts failed in their duty to consider the defence of the Appellant, irrespective of how stupid it might have appeared.

Moving to issue 4, learned counsel submitted that the doctrine of last seen presupposes that at least one witness must have seen the accused person with the deceased the last time the deceased was seen alive. He relied on the cases of IGABELE V. STATE (2006) 6 NWLR (PT. 975) 100, THE STATE V. GODWIN NWAKERENDU & 3 ORS (1973) 3 ECSLR (PT. 11) 757, IGHO V. THE STATE (1978) 3 SC 87, GABRIEL V. STATE (1989) 5 NWLR (PT. 122) 457. He submitted that in this case, no eyewitness saw the Appellant with the deceased, hence the doctrine of last seen does not apply and the Appellant was convicted for the murder of Francis Ajayi based on speculation.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px; scrollbar-color: var(–thumbBG) var(–scrollbarBG);”>

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He finally urged the Court to allow the appeal, set aside the judgment of the two lower Courts, quash the conviction of the Appellant and enter a verdict of acquittal in his favour.

For the Respondent, learned Attorney-General submitted on issue 2 that each of the offences charged was proved against the Appellant beyond reasonable doubt. On proof beyond reasonable doubt, reference was made to the cases of EDAMINE V. STATE (1996) 3 NWLR (PT. 438) 530, MUSA V. STATE (2009) 5 NWLR (PT. 1165) 467, DIBIE V. STATE (2004) 14 NWLR (PT. 893) 257, BAKARE V. STATE (1987) 1 NWLR (PT. 52) 579, OSENI V. STATE (2012) 5 NWLR (PT. 1293) 351, JUA V. STATE (2010) 5 NWLR (PT. 1184) 217. He submitted that there was evidence that the Appellant acted with Bassey and others, hence he was guilty for the offence of conspiracy. He referred to the evidence of PW4 that the Appellant sent messages to him that “we” would kill Francis Ajayi if PW4 did not cooperate as well as the evidence of the Appellant that he went to withdraw the ransom money on behalf of Bassey. On the offence of kidnapping, he submitted that the evidence of the Respondent’s witnesses established that the

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Appellant was kidnapped and ransom was demanded and paid. On the offence of murder, it was submitted that PW4 received calls and text messages threatening to kill the victim if PW4 refused to cooperate or if he reported to the Police, and the victim has not been heard of since a report was made to the Police and the Appellant apprehended. He relied on OCHEMAJE V. STATE (2008) 15 NWLR (PT. 1109) 57. On the offence of robbery, it was submitted that the victim left home with his car and other properties, he was kidnapped by the Appellant, PW2 and PW4 were called with the Appellant’s phone, but the properties were not seen again, hence robbery was established against the Appellant.

On issue 3, learned Attorney-General further submitted that there was sufficient circumstantial evidence to convict the Appellant. He submitted that the evidence of PW2 and PW4 were cogent enough to ground a conviction and the Appellant himself provided evidence leading to his conviction as he admitted that he had withdrawn the ransom on two previous occasions before he was caught a third time and also admitted that he tried to dispose of the sim card and withdrawal form when he

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noticed the presence of police officers in the bank. Reliance was placed on IKWUNNE V. STATE (2000) 5 NWLR) (PT. 658) 551. It was submitted. that the Appellant contradicted himself when he stated that he asked Bassey for the source of the money he was sent to withdraw but Bassey did not tell him, only for the Appellant to say that Bassey told him that the money was from a business partner. It was submitted that the said contradictions rendered the evidence and defence of the Appellant unreliable and unbelievable, leading the trial Court to reject same as false. The case of SULE V. STATE (2009) 17 NWLR (PT. 1169) 33 was called in aid.

In arguing issue 4, learned Attorney-General submitted that although no one saw Francis Ajayi with the Appellant, it was established that he was last together with the Appellant and his cohorts, thus the doctrine of last seen applies and the Appellant was rightly convicted for the murder of the said Francis Ajayi. It was submitted that the Appellant failed to lead sufficient evidence to rebut the evidence led against him, thus his conviction was rightly affirmed by the lower Court. Counsel urged the Court to dismiss the

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appeal for lacking in merit.

RESOLUTION ISSUES 2, 3 AND 4
It is now beyond doubt that the Prosecution bears the onerous burden of proving the guilt of an accused person in a criminal case beyond reasonable doubt. The burden is heavy, albeit surmountable. This is consistent with the constitutional presumption of innocence bestowed upon every person who is charged with a criminal offence by Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered). The duty to prove the commission of the offence against the accused person beyond reasonable doubt extends to proving each element or ingredient of each offence charged against the accused person beyond reasonable doubt. Failure to prove the elements of the offences charged beyond reasonable doubt will lead to the failure of the charge in respect of that particular offence. See Section 135 of the Evidence Act as well as NWIKO V. STATE (2022) LPELR – 57747 (SC), ENEBELI V. STATE (2021) LPELR – 54990 (SC), TOBI V. STATE (2019) LPELR – 46537 (SC).

Closely related to the foregoing is the principle that proof beyond reasonable doubt is simply what it is and nothing more. It

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does not mean proof beyond all shadow of doubt or proof beyond unreasonable or fanciful doubt. Proof beyond all shadow or all iota of doubt or proof to the degree of absolute certainty is not attainable in any human endeavour, neither is it the standard recognized in our criminal jurisprudence. If after an examination of the evidence led by the prosecution and the accused person, the judicial mind of the Court is affected only by some fanciful doubt which does not play reasonably on the mind of the Court, the prosecution would have met the threshold of proof beyond reasonable doubt as required by law. If the evidence is so strong against a man 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, but nothing short of that will suffice. See MILLER V. MINISTER OF PENSIONS (1947) 2 ALL ER 372, UDO V. STATE (2023) 9 NWLR (PT. 1888) 181, IBRAHIM V. STATE (2023) 4 NWLR (PT. 1874) 275, ADEPOJU V. STATE (2018) 15 NWLR (PT. 1641) 103, NWATURUOCHA V. STATE (2011) 6 NWLR (PT. 1242) 170, OCHEMAJE V. STATE (2008) 15 NWLR (PT. 1109) 57.

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In the instant case, the Appellant was charged with and convicted for the offences of conspiracy, kidnapping, murder and robbery. Let us start with the offence of kidnapping. Section 364 of the Criminal Code Cap 30 Laws of Eastern Nigeria, 1963 applicable to Abia State, under which the Appellant was charged provides as follows:
“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 (sic) 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.”
To successfully establish the offence of kidnapping under Section 364 of the Criminal Code against an accused person, the Prosecution must prove beyond reasonable doubt that:
i. The accused person unlawfully imprisoned and took the victim out of Nigeria [Section 364(1)]; or
ii. The

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accused person unlawfully detained or imprisoned the victim within Nigeria.
iii. The imprisonment or detention was carried out in such a manner as to prevent the victim from applying to a Court for his release OR from disclosing 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. [Section 364(2)]
The offence is complete upon the unlawful detention of one person by another. See HARUNA V. STATE (2018) 11 NWLR (PT. 1631) 559, EWUGBA V. STATE (2018) 7 NWLR (PT. 1618) 262.

In the case at hand, there is uncontradicted evidence that the victim, Mr Francis Ajayi, was seized by kidnappers after he left work on 28th July, 2008. The following day, PW2 and PW4 started receiving calls and text messages from the kidnappers who seized and imprisoned him, demanding for payment of ransom. The kidnappers kept the victim in an unknown location such that he could not apply to Court for his release, he could not disclose to any person where he was imprisoned and persons entitled to have access to him were prevented from discovering

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where he was imprisoned. PW2, Mrs Veronica Ajayi, who was the victim’s wife and PW4, the victim’s friend who gave him his house key to stay were undoubtedly persons entitled to have access to him, but they were prevented from knowing his whereabouts. In fact, PW2 testified unchallenged, that she paid the first two sets of ransom money demanded by the kidnappers. That notwithstanding, she was not told of the location of her husband, neither was he allowed to inform her of where he was imprisoned.

PW4 also mentioned in his statement, Exhibit E, that the kidnapper who spoke to him on phone mentioned his name, described his car and even stated his car plate number. He said the kidnapper also mentioned that he was standing in front of PW4’s house, described the things on his porch, said that he had the key to the house and could enter if he liked. PW2 and PW4 also mentioned that the Appellant called them with the deceased victim’s phone number. All these go further to solidify the fact that Mr. Francis Ajayi was kidnapped by the Appellant and his partners in crime. This is because they could not have had access to all the information, PW4’s key and Mr. Francis

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Ajayi’s phone except if they had kidnapped him. Having established that Mr. Francis Ajayi was kidnapped, the question to be answered is whether the Appellant was the kidnapper or one of the kidnappers. All the evidence on record proved beyond reasonable doubt that the Appellant was one of those who kidnapped Mr. Francis Ajayi. As I have stated earlier, the Appellant was correctly identified as the person who was calling the PW2 and PW4 on phone. Thus, not only was the Appellant among the kidnappers, he played a prominent role by calling to threaten PW2 and PW4, demanded payment of ransom from them and went to the bank to withdraw the ransom money on two occasions before he went for the third time, but was unlucky. Furthermore, when the Appellant noticed the presence of security operatives in the banking hall, he panicked and immediately removed the SIM card from his phone and threw same away. Unfortunately for him however, the SIM card was retrieved. It turned out that the SIM card was one of those that was used to call PW2 and PW4 and the phone number of both witnesses were found on the SIM card. The Appellant was unable to proffer any sensible or reasonable

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explanation as to why he was found with the SIM card and why the phone numbers of PW2 and PW4 whom he claimed not to know, were on his SIM card.

Furthermore, when the Appellant was apprehended by a combined team of SSS and Police officers, he told the Police that he was sent by his friend, one Bassey who, according to him, was lodged in a hotel. When the officers went with him to the hotel, the Appellant could not produce any Bassey, but rather said that he had left the hotel. He then confused the Police by saying initially that he did not know where Bassey was living, only to turn around to say that he knew his house. Certainly, the Appellant was only looking for a way out of the shackles he had found himself in. All in all, the Appellant was rightly found guilty for the offence of kidnapping by the trial Court and his conviction was rightly affirmed by the lower Court.

Concerning the offence of murder, the Appellant argued that the body of the deceased was not found, neither were the ingredients of the offence proved against him, thus the lower Court was wrong to convict him for the offence of murder. Let me make it clear straightaway that the

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fact that the body of the victim of murder or homicide was not found or produced will not harm the chances of conviction of the perpetrator if there is clear and compelling evidence that he indeed committed the crime and the deceased was properly identified in the charge. See STATE V. EKUMA (2022) 18 NWLR (PT. 1861) 1, STATE V. AHMED (2020) 14 NWLR (PT. 1743) 1, DAJO V. STATE (2019) 2 NWLR (PT. 1656) 281. The essential elements of the offence of murder under our laws, are well known and production of the body of the deceased is not one of them. Hence, as long as there is compelling, cogent and conclusive evidence that human being is dead, that the death of the deceased was caused by the act or omission of the accused person and that the act that led to the death of the deceased was done with the intention of causing death or that the accused knew or had reason to believe that death would be the probable consequence of his act, the conviction for murder can stand.

In convicting the Appellant for the offence of murder and affirming the conviction, the trial Court and lower Court respectively relied on the doctrine of last seen. The doctrine of last seen or

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the last seen doctrine presumes that any person last seen with a deceased bears full responsibility for his death. In other words, the doctrine creates a rebuttable presumption that the person last known to be in the company of the deceased is responsible for his death. Thus, where there is cogent evidence that an accused person was the last person to be in the company of the deceased and circumstantial evidence is overwhelming and leads to no other safe conclusion, then the accused person will have to offer an explanation as to the whereabouts of the deceased or how he met his death, otherwise there would be no room for his acquittal. See GANIYU V. STATE (2023) 11 NWLR (PT. 1895) 199, AIWUYOR V. STATE (2022) 13 NWLR (PT. 1846) 89, ESSEYIN V. STATE (2018) 14 NWLR (PT. 1640) 491, MADU V. STATE (2012) 15 NWLR (PT. 1324) 405. The presumption created can be rebutted if the accused person is able to offer a tenable and acceptable explanation as to the whereabouts of the deceased or how he met his death.
Counsel for the Appellant argued strenuously that the doctrine ought not to apply to the Appellant since no witness testified to have actually seen him with

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the deceased. Apparently, the word “seen” seems to be the cause of the confusion. The doctrine can be applied by a Court once there is evidence that the accused person was the last person to be seen in the company of the deceased. The fact that no one testified to actually sighting an accused person with the deceased will not diminish the potency of the doctrine once there is cogent evidence that he was the last person to be in the company of the deceased.
In the instant case, there is evidence that the Appellant and others kidnapped Mr Francis Ajayi, detained him and demanded for the payment of ransom for him to be released. They also threatened PW2 and PW4 that they would never get to see him again if they refused to cooperate. Furthermore, the phone calls and text messages ceased completely after the Appellant was arrested and it became clear that the case had been reported to the Police. Nobody has heard from Mr. Francis Ajayi till date. In the circumstance, the two Courts below were right to conclude that the Appellant and his cohorts had made good on their threat to kill the said Mr. Francis Ajayi. And here is the Appellant, who has blatantly refused

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to offer any explanation, cogent or otherwise, as to the whereabouts or the state of his victim. Thus, all the circumstantial evidence points, with the accuracy of mathematics, to the fact that the victim has been killed by the Appellant and his co-conspirators. In the face of the mammoth evidence on record against the Appellant, his contention that he was not actually seen with deceased pales into irrelevance. In the recent case of SOMEFUN V. STATE (2023) 17 NWLR (PT. 1913) 273, the Appellant confessed in his extrajudicial statement to the Police that he was the last person to be with the deceased. This Court affirmed the reliance by the two Courts below on the doctrine of last seen to convict the Appellant despite the fact that no witness testified to seeing him with the deceased. His Lordship, Okoro, JSC held thus at page 296, paras. C – E of the report:
“From the above pieces of evidence, circumstantial and confessional statements of the appellant, the link between the appellant and the death of the deceased was well establish by the graphic and vivid details given by the accused on how the deceased met his death. Both the trial Court and the Court

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of Appeal had no difficulty inferring that the appellant and his co-accused (Kehinde Sesan) were the last persons seen with the deceased. Regardless of the fact that none of the prosecution witnesses saw the appellant boarded the deceased motorcycle, by the extensive applicability of the doctrine, the holding of the lower Courts cannot be faulted. The appellant confessed to being the last person to board the deceased motorcycle before he died, the doctrine of last seen was therefore rightly inferred.”
Thus, the trial Court rightly relied on the doctrine of last seen to convict the Appellant for murder and the lower Court rightly affirmed the conviction.

The Appellant was also convicted for the offence of robbery. Section 11(1) of the Robbery and Firearms (Special Provisions) Act defines robbery thus:
“In this Act, unless the context otherwise requires-
“robbery” means stealing anything and, at or immediately before or after the time of stealing it, using or threatening to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px; scrollbar-color: var(–thumbBG) var(–scrollbarBG);”>

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In AWOSIKA V. STATE (2018) LPELR – 44351 (SC) at p. 60, paras. C – F, this Court set out the elements of the offence of robbery thus:
“…and these ingredients are as follows:
a. That the accused stole something.
b. That the thing stolen is in law capable of being stolen.
c. That the accused threatened to use violence or actually used violence immediately before or immediately after the time of stealing the thing.
d. The violence could be on either a person or on a property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained.
An essential element of the offence of robbery is stealing and so what is said to be stolen must be such as could be an item capable of being stolen.”

In convicting the Appellant for robbery in the instant case, the learned trial Judge made the following findings which were affirmed by the Court below:
“Again, Francis Ajayi’s car with his laptop and other personal effects disappeared with him when he was kidnapped. I am satisfied that the inference is on the accused who should explain what he did to the car, laptop and other

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personal effects of the kidnapped and murdered Francis Ajayi. The inference is that the Appellant is guilty of robbing Francis Ajayi of the said blue Opel car, laptop and other personal effects after kidnapping him. I am therefore satisfied that he did commit the offence of robbery.”

These concurrent findings of the two lower Courts are unassailable and I need not say more. The conviction of the Appellant for the offence of robbery was in order.

The last offence for which the Appellant was convicted is conspiracy. Conspiracy belongs to a class of offences called “inchoate offences”. The word “inchoate” means “only partly in existence or in operation”. Thus, inchoate offences are offences that have not been fully committed or that are preparatory to or that facilitate the commission of other crimes. The term “inchoate offences” itself is paradoxical in the sense that it contradicts itself because while the offences are regarded as incomplete, they are full offences in themselves for which a person can be charged and convicted. Other inchoate offences are attempt to commit an offence, solicitation, inciting the commission of a crime, and so on.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px; scrollbar-color: var(–thumbBG) var(–scrollbarBG);”>

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Conspiracy is an agreement between two or more people to carry out an unlawful act or to do a lawful act by unlawful means. The gist of the offence of conspiracy lies in the agreement itself or the meeting of the minds of the conspirators. The two or several conspirators need not to have met each other before or to have expressly agreed to do an unlawful act or do an unlawful act by lawful means before they will be found guilty of the offence of conspiracy. It is sufficient if the evidence on record discloses that there was a meeting of the minds of the conspirators towards achieving an unlawful common goal. Conspiracy is a separate offence, independent of the principal offence, such that even if the principal offence is not proved or is abandoned, a person can nevertheless be found guilty for conspiracy if he had been involved in an agreement or scheme to carry out an unlawful act or a lawful act by unlawful means. OYEDIRAN V. R. (1967) NMLR 122, MARTINS V. STATE (2020) 5 NWLR (PT. 1716) 58, MUSA V. STATE (2018) 13 NWLR (PT. 1636) 307, DARLINTON V. F.R.N. (2018) 11 NWLR (PT. 1629) 152, AKWUOBI V. STATE (2017) 2 NWLR (PT. 1550) 421, AJULUCHUKWU V. STATE

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(2014) 13 NWLR (PT. 1425) 641.
Since the gravamen of the offence of conspiracy is the meeting of the minds of the conspirators and the offence is complete once there is an agreement or a meeting of the minds of the conspirators, the offence is hardly capable of being proved by direct evidence. Thus, Courts often have to resort to drawing inferences from overt acts of the conspirators. See UGBOJI V. STATE (2018) 10 NWLR (PT. 1627) 346, OMOTOLA & ORS V. STATE (2009) LPELR-2663 (SC), OBIAKOR & ANOR V. STATE (2002) LPELR – 2168 (SC).

In the present case, it is clear that the Appellant was not acting alone. He left Port Harcourt where he was serving as a youth corps member on different occasions to withdraw the ransom monies sent by PW2 via local cash transfer, the details of which were supplied by one of his co-conspirators, he spoke to PW2 and PW4 on phone on behalf of his co-conspirators. PW2 also testified that the Appellant mentioned to her on phone that he was being given instructions by his “Oga”. It is therefore not in doubt that the Appellant acted in concert with other persons to perpetrate the kidnapping of Francis Ajayi. His argument

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that he introduced Bassey as an alternative suspect who might have committed the crimes alleged, is misguided. It is clear from the evidence that Bassey (or whatever his actual name is) was a co-suspect in the commission of the offence and not merely an alternate suspect. The conviction of the Appellant for conspiracy to commit kidnapping was proper in law.

Another line of argument canvassed by the Appellant’s counsel is that the circumstantial evidence adduced against the Appellant was not cogent enough to warrant his conviction for the offences charged. It is trite that circumstantial evidence is one of the modes of establishing the guilt of an accused person. It can be relied on alone or together with one or both of confessional statement of the accused person or eyewitness testimony. Circumstantial evidence is the evidence of surrounding circumstances which by undesigned coincidence is capable of proving a proposition with the accuracy of mathematics. It consists of several pieces of evidence which though may seem independently insufficient to ground conviction, but when considered together, point irresistibly to the guilt of the accused person. For a

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Court to convict an accused on circumstantial evidence, same must be strong, cogent and lead to the irresistible conclusion that the accused person committed the crime he is accused of. See ANYASODOR V. STATE (2018) 8 NWLR (PT. 1620) 107, BROWN V. STATE (2017) 4 NWLR (PT. 1556) 341, ODOGWU V. STATE (2013) 14 NWLR (PT. 1373) 74.

In the instant case, the circumstantial evidence led was cogent and pointed irresistibly to the guilt of the Appellant. The circumstantial evidence consists of the fact that the Appellant called and sent text messages to PW2 and PW4 with Francis Ajayi’s number and another phone number demanding for the payment of ransom and phone recharge cards and threatening to kill Mr Francis Ajayi, the fact that he went to the bank to withdraw the ransom money sent on three different occasions and was caught the third time, the fact that the phone calls and text messages stopped the moment the Appellant was captured, the fact that the Appellant threw away his withdrawal form and also removed the SIM card from his phone and threw it away, and so on. These are all circumstantial evidence pointing to his guilt. There is no reason for a regular

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customer to throw away a SIM card and withdrawal form upon sighting the Police, but the Appellant was aware that it was through the SIM card and the withdrawal form that he could be caught by the Police. In his extra-judicial statement, Exhibit A, the Appellant admitted throwing away the withdrawal form and removing the SIM from the phone and throwing same away when he saw police officers in the bank. I therefore agree with the two lower Courts that the circumstantial evidence led at the trial was cogent and strong enough to warrant the conviction of the Appellant.

I need to point out at this juncture that there has been no appeal against the holding of the trial Court that assuming the Appellant’s story that he only went to the bank to help his friend withdraw the money, he would still be liable under Section 7 of the Criminal Code. The trial Court held in its judgment at page 108 of the record thus:
“I’m afraid that his defence is merely an afterthought to pretend a defence for his case.
However, it is clear to me that despite the deceased’s (sic) feeble defence, his criminal responsibility is well established in Section 7 of the Criminal Code
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on parties to an offence, for even if his defence is to be believed, he did aid another person to commit the offence. See Section 7(c) Criminal Code and he did do something to enable them commit the offence. See Section 7(b) of the Criminal Code.”

There is no gainsaying that the failure of the Appellant to appeal against the above decision indicates that it has been accepted by the Appellant as binding on him. See KOKO V. KOKO & ORS (2023) LPELR-59773 (SC), NNADIKE & ANOR V. NWACHUKWU (2019) LPELR-48131 (SC), UWAZURIKE & ANOR V. NWACHUKWU & ANOR (2012) LPELR-19659 (SC). I need to also add that the foregoing passage shows that the trial Court considered the Appellant’s defence, but deemed it “feeble” and incapable of disproving the case made against him by the Respondent. Thus, the Appellant’s contention that his defence was not considered is essentially demolished. Issues 2, 3 and 4 are also resolved in favour of the Respondent and against the Appellant.

Before rounding off, it is pertinent to state that the lower Court’s affirmation of the conviction of the Appellant was based on findings of facts made by the trial Court and

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affirmed by the lower Court, thereby. becoming concurrent findings of facts of the two lower Courts. The attitude of this Court to such concurrent findings of facts is well settled. This Court has made it a policy not to interfere with such concurrent findings except in exceptional circumstances such as where the findings are perverse, not based on available evidence or had occasioned a miscarriage of justice or were reached as a result of a wrong approach to the evidence. See ABACHA & ANOR V. A.G. OF THE FEDERATION & ORS (2023) LPELR- 59545 (SC), ILA ENTERPRISES LTD & ANOR V. UMAR ALI & CO. (NIG) LTD (2022) LPELR- 58067 (SC), AHMED & ORS V. REGISTERED TRUSTEES OF ARCHDIOCESE OF KADUNA OF THE ROMAN CATHOLIC CHURCH (2019) LPELR- 46414 (SC), THE ADMIN. & EXEC. OF THE ESTATE OF ABACHA V. EKE-SPIFF & ORS (2009) LPELR – 3152 (SC).

The Appellant having not been able to show that the concurrent findings of facts are affected by any of the deformities listed above, there is no reason for this Court to interfere therewith.

In conclusion, the appeal is completely devoid of merit and it is hereby dismissed. The judgment of the

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Court of Appeal, Owerri Division affirming the conviction and various sentences imposed on the Appellant by the trial Court, is hereby affirmed.
Appeal dismissed.