Theophilus Friday v. The State

This is an appeal against the judgment of the Court of Appeal, Akure Division in appeal no. CA/AK/98CA/2014 delivered on the 2nd day of October, 2020 in which the Court dismissed the appeal of the Appellant against his conviction and sentence to death by the Ondo State High Court, in charge no. AK/84C/2013.

Appellant was charged with the offence of Kidnapping and Murder of Dada Akingboye, an offence punishable under Section (3) of the Ondo State Anti-Kidnapping and Anti- abduction Law, 2010 and Sections 316 and 319 of the Criminal Code Laws of Ondo State 2006.

The facts of the case from the records, are that Olusegun Obaro and Jonah Lase were sent by the 3rd accused person, the appellant herein to Kidnap one Dada Akingboye a baby of 1 1/2 years old. That the baby was snatched and kidnapped from her mother in the night while she was sleeping beside her mother in the midnight of 16th June, 2011 at Ikorigho community and the 1st and 2nd accused persons handed the baby over to the Appellant. On 17th day of June, 2011, the body of the baby was found close to her mother’s house with her right ear, right eye, right breast, and the right part of

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her scalp removed. Subsequently, the three accused persons were arrested by the Ikorigho community in connection with the crime and handed over to the police. After investigation, the Appellant and the two other accused persons were eventually arraigned before the trial Court for the offence of kidnapping and murder, and they all pleaded not guilty to the charge.

Following their trial, Appellant and his conspirators were found guilty and convicted of the offence of kidnapping and murder and sentenced accordingly. Being dissatisfied with the judgment, Appellant appealed to the lower Court, the Court of Appeal, Akure Division in appeal no. CA/AK/98CA/2014. Appellants appeal was dismissed by the Court in a judgment delivered on the 2nd day of October, 2020 resulting in the instant further appeal to this Court.

The Appellants brief of argument was filed by learned Counsel Hannibal Uwaifo on the 3rd day of March, 2023. Learned Counsel nominated a sole issue for determination on behalf of the Appellant, the issue reads as follows:
“Whether or not the respondent successfully proved the two-count charge of murder and kidnapping against the appellant

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beyond reasonable doubt as required by law. (Distilled from Ground 1 and 2)”

Learned Counsel Charles Titiloye, Honourable Attorney General Ondo State, filed the Respondent’s brief of argument on the 4th day of August, 2023 and crafted corresponding sole issue for determination. The issue reads as follows.
“Whether from the totality of the evidence on record as well as material evidence available, the lower Court was right when it held that the respondent (prosecution) had established the offences of kidnapping and murder against the appellant beyond reasonable doubt.”

Looking closely at the issues formulated by both Counsel, it is clear to me that the issues are substantially similar. I will now take the submissions of each Counsel before resolving the appeal.

SUBMISSIONS OF COUNSEL FOR THE APPELLANT
Arguing the lone issue for determination, learned Counsel for Appellant, Hannibal Uwaifo, referred to the decision of this Court in NWEZE V. STATE (2017) LPELR- 42344 (SC) to submit that it is the duty of the prosecution to prove the guilt of the appellant beyond reasonable doubt as required by law. This burden of proof remains on the

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prosecution throughout and does not shift. Learned counsel added that the prosecution has a duty to prove all the essential ingredients of the offence such as the two-count charge of kidnapping and murder as in the instant appeal by adducing cogent, credible, and compelling evidence in proof of the charge against the Appellant. Learned counsel argued that any pieces of evidence which have been discredited cannot be relied upon by the trial Court in the consideration of the crucial question as to whether the guilt of the accused person has been established beyond reasonable doubt and the question of partial reliance on such evidence does not arise. Counsel relied on the decision of this Court in BAKARE V. STATE (1987) 1 NWLR (PART 52) 579.

Learned counsel submitted that Inspector Isah Momoh, who interpreted Exhibits B, C and D was not called or fielded as a witness by the prosecution at the trial to adduce evidence of the content. Counsel further contended that the general position of the law as laid down in the case of R V. OGBIJEWU (1949) 12 WACA 483 is that where an interpreter has been used in the recording of a statement, the statement is

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inadmissible unless the person who interpreted it is called as a witness as well as the person who wrote it down.

Learned Counsel contended that the appellant both in his extra judicial statement to the police recorded by PW1, the investigating police officer and interpreted by Inspector Isah Momoh and testimony at the trial Court, the appellant vehemently denied the two-count charge of kidnapping and murder. Counsel further contended that the conviction and sentence of the appellant by the trial and intermediate Courts was premised solely on Exhibits B, C, and D without any other independent direct evidence bearing in mind that the interpreter who recorded the said exhibits was never called by the prosecution to testify at the trial Court against the appellant.

It was further contended by learned Counsel that the use of unadopted statement against a co-accused is a misdirection which inevitably leads to the questioning of the conviction of an accused person as in the instant case. Counsel cited the case of STATE V. GWANGWAN (2015) 13 NWLR (PART 1477) in support of his submissions.

Learned counsel cited the case of OKEREKE V. NWANKWO (2003)

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25 WRN 88 to submit that this Court ordinary will not interfere with the concurrent findings of the two lower Courts, however, where such findings are shown to be perverse or patently erroneous and that miscarriage of justice will result if the findings are allowed to remain, this Court will not hesitate to intervene to reverse such findings. Learned counsel finally urged this Court to set aside the findings of the trial and the intermediate Courts, acquit and discharge the appellant on both Counts. Learned Counsel so urged this, Court.

SUBMISSIONS OF COUNSEL FOR THE RESPONDENT
Learned counsel for the Respondent submitted that the law is well settled that in any criminal trial, the burden of proof lies on the prosecution, however, Counsel said, proof beyond reasonable doubt does not mean proof beyond all shadow of doubt, it simply means establishing the guilt of the accused person with compelling and conclusive evidence which is consistent with a high degree of probability. The decisions of the in Court in AYINDE V. THE STATE (2019) 12 NWLR (PT. 1687) 410 AT 426, EZEANI V. THE STATE (2019) 12 NWLR (PT. 1686) 221 AT 248, NWACHUKWU V. THE STATE (2002)

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12 NWLR (PT. 782) 543 AT 568 and EMEKA V. THE STATE (2001) 14 NWLR (PT. 734) 666 AT 682 were relied on by the learned counsel to fortify his position.

Learned counsel added that to discharge the burden placed on it, the prosecution must establish all the ingredients of the offence or offences charged against the Appellant. Counsel cited the cases of YONGO V. C.O.P (1992) 8 NWLR (PT. 257) 36 and ALOR V. THE STATE (1997) 4 NWLR (PT. 501) in support of this submission.

Learned counsel contended that Exhibit C which was the confessional statement of the Appellant was not confessional in nature and was not objected to at the trial when it was sought to be tendered. Counsel insisted that the confessional statements of the 1st and 2nd accused persons at the trial Court were tendered and admitted as exhibits after a retraction and trial within trial respectively.

Learned counsel argued that the duty of the prosecution in criminal trials is to prove the guilt of an accused person beyond reasonable doubt, the law is therefore clear that such guilt of the accused may be proved by the following.
1. Confessional statement

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2. Circumstantial evidence
3. Direct evidence

Learned Counsel cited FATIIEWA V. THE STATE (2007) 5 ACLR at 630-631 and submitted that there are abundant cogent and strong circumstantial evidence showing that the Appellant indeed committed the offences of Kidnapping and Murder.

Learned counsel also relied on the case of IJIOFOR V. STATE (2001) 6 NSCQR 209 to contend in response to the allegation of the appellant that the person who was used in taking down and recording Exhibit B, C and D was never called by the prosecution to testify at the trial Court, that the prosecution is not bound to call a host of witnesses in the presence of other overwhelming evidence against the accused person.

On the issue of confessional statement, learned counsel referred to the provisions of Section 29 of the Evidence Act to argue that extra-judicial statement of a co-defendant is only evidence against the co- defendant where it remains a statement and not the evidence of the co- accused, but where the co-defendant repeats and adopts his extra-judicial statement implicating another defendant on oath, his evidence and that statement on oath can only be used to convict the

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co- defendant after the Court has warned itself of the need to exercise caution in that regard.

Learned counsel finally submitted that the trial Court did not solely base the evidence placed before it by the prosecution and defense before arriving at a just conclusion.

RESOLUTION
I must state that the sole issue crafted for determination by the Appellant seemingly captures the grievance of the Appellant and appears to be all encompassing for the purpose of resolving the issue in controversy between the contending parties in this appeal. The issue that is central to the determination of this appeal looking at all the submissions of the contending parties is therefore, whether from the totality of evidence adduced at the trial Court, the prosecution proved its case beyond reasonable doubt to warrant the conviction of the appellant for the offence of Kidnapping and Murder?

Now, the complaint by the Appellant is that there was no direct evidence linking him to the offence charged, and that the prosecution did not prove its case beyond reasonable doubt as required by law. The law is fairly settled on a congregation of undoubted authorities

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that the guilt of an accused person can be established by the following methods (i.) the voluntary confession of the accused person (ii.) direct credible and reliable eyewitness or victim of the offence depending on the circumstance of the offence and (iii.) circumstantial evidence pointing or focusing on the guilt of the accused person, that he was the one or one of the persons who committed the offence charged and by no other person. See EGBOGHONOME V. THE STATE [1993] NWLR (Pt. 306) 282.

It is the contention of the learned counsel for the respondent that there are cogent and strong circumstantial evidence showing that the Appellant indeed committed the offence of Kidnapping and Murder.

The learned trial judge in his judgement at page 85 of the records of appeal held as follows.
“At the trial in Court, the three accused persons denied knowledge of the crime. They retracted their statements. It has been established by plethora of cases that retraction of confessional statement will not affect its probative value.
The following can be deduced from Exhibit C, which is the statement of the 3rd accused:
1. That he claimed not to have

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anything to do with the kidnapping and the murder charge.
2. That he claimed the 1st and 2nd accused lied against him because he settled a quarrel between them and his customer.
3. While claiming the deceased’s mother was not his sister, he later admitted they were related.
The statement of the 3rd accused before the police which was extra-judicial though not confessional corroborated the confessional statements of the and 2nd accused on the facts that he (3rd accused) contracted them to kidnap the deceased based on his familiarity with the deceased mother whom the 3rd accused claimed to be his sister. According to the 1st accused in exhibit B:
“… knew one Bassey Akingboye “M” and Yemisi Okunuwa “f”, the two parents of the deceased Dada Racheal Akingboye “F”. Age one and half years old girl. That, I knew one Friday Theophelius “m” we are playing together at seaside Awoye via Igbikodo he was selling cloth, shoes and jewelleiries. On the 16/06/2011, the said Theophelius Friday “m” called myself, and my second Lase Jona, that we should followed him to a certain place without mentioning the place for me. But

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on that fateful day, he called us to meet at Ikoriho we did followed him down, we used our wooden boat and waited for him at Express Hotel Odonla seaside. Later he met us in that hotel, that we should now went to his sister house without telling us the act all place, along that line he used his hand cover with ring hacken my chest I could met get myself again, he commanded me to move forward which we did, we started following him behind on getting to that place he sent me to enter and bring a small girl for her, which I did. I met the mother sleeping, because Theophelius Friday “m” firstly went to that house before we followed him down, when we entered, I carried the girl out and handover to Theophelius Friday “m” and left. I did not know when he removed some of her body parts away. He promises myself and my second N100,000. But up till this point of writing he did not give or pay that money for us, when I entered room and carry this small baby out my fried Lase Jona “m” was outside watching up and down as security or guard. The Community people that arrested me and handed over to the policemen…”
This Court is mindful of the fact that the

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confession of an accused in criminal charge can only be used against him and is not binding on the co-accused. Taking into consideration the confession of the 1st and 2nd accused persons, the fact that the 3rd accused was instrumental to the kidnapping was further reinforced. Moreso, circumstantial evidence is one of the means of proving the commission of an offence. Thus, the confessional statements of the 1st and 2nd accused persons has satisfied this Court about the involvement of each of the accused persons.
At the trial, the 1st and 2nd accused persons denied knowing each other before the incident. Each claimed that they only knew each other at the police station. They equally denied knowing the 3rd accused before then. The evidence of the 3rd accused at the trial even when he tried to be clever revealed that the all knew each other. According to him the 1st and 2nd accused lied against him because of the fight he had with them over his customer. In his examination in chief, 3rd accused said he knew the 1st accused thought a fight. I therefore do not believe the 1st and 2nd accused when they said that they did not know each other or the 3rd accused

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except at the police station, they were all lying to cover up. The statement of the 3rd accused at the trial revealed that they knew each other. … From the totality of the evidence before the Court, the prosecution has proved that the acts of the 1st, 2nd and 3rd accused persons were responsible for the death of the deceased. In sum, I find the three accused persons guilty of murder… ”

On appeal, the lower Court conducted a thorough analysis of the evidence led at the trial and came to the following conclusion at pages 205-207 of the records of appeal, the lower Court held as follows and I quote:
“From the above, it is clear the Appellant has played a vital role in the kidnapping and murder of the deceased. Evidence abound that the Appellant masterminded the kidnapping and after kidnapping the deceased the 1st and 2nd accused handed her over to the Appellant and was later found dead. There is no doubt that the Appellant has fully participated and aided the and 2nd accused in kidnapping and murder of the innocent deceased. The identity of the Appellant was revealed by the 1st and 2nd accused but not by the alleged Juju in the circumstance of

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this case. The law is that where two or more persons intentionally do a thing jointly, it is the same as it had been done individually. Each person is not only liable for his own act, but for the sum acts of the conspirators in furtherance of the common intention…
The Appellant pinpointed some named persons whose evidence were vital. It is trite law, that the prosecution is not required to call a host of witnesses to prove his case. One reliable witness is enough to prove the commission of a crime… PW1 testified and gave uncontroverted evidence that the mother of the deceased became insane because of the trauma of the incident and that the grand mother later died. The ba’ale cannot be said to be vital witness in the circumstance of this case. I am unable to christen those persons listed by the Appellant as vital witnesses. Besides it is the prosecution that determines the vitality of the evidence…
Another grouse of the Appellant is against the evidence of PW1, the Police investigation officer. He decried it as inadmissible hearsay.
The law is trite that hearsay evidence is inadmissible, and it cannot be relied upon to establish the

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truth of the fact it alleges…
I have given an in-depth study to the evidence of PW1, the investigation Police officer wrapped between pages 29-44 of the records. The PW1 gave evidence of the investigation conducted by him and tendered exhibits. To my mind, it cannot be contended that the account or what the witness did and saw in the course of the investigation he conducted was a story that was told to him by another person. The evidence of PW1 on the investigation he personally conducted cannot be said to be hearsay. The references he made were made not to establish the truth of what was said by the 1st, 2nd and 3rd accused persons and the grandfather of the deceased but to show that they were made by such persons. To my mind, the testimony of PW1 falls within the parameters of the admissible evidence and do not constitute hearsay evidence. It has not defiled the law and therefore admissible… The lower Court was in my view right when it held that the Respondent discharged its burden and proved the case levelled against the Appellant…”

It is therefore clear from the findings of the trial and intermediate Courts that the Court placed

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substantial Premium on the evidence of PW1 who took part in the thorough investigation of the case of the prosecution. Again it must be pointed out that the lower Court premised its findings on the credible and reliable evidence generated at the trial.
I must not fail to mention that this appeal is against concurrent findings of facts by the trial and the intermediate Courts, this Court must find concrete, cogent and convincing reasons to tinker with the concurrent findings. The Appellant must show this Court that the findings are patently perverse and must for those reasons be set aside, otherwise this Court is always wary of interfering with concurrent findings of facts by two lower Courts. In the instant appeal, the evidence is such that the Court must be reluctant to interfere, because the Appellant gave no compelling reasons moving this Court so do. See ALTINE V STATE (2022) LPELR-58101 (SC) where this Court while dealing with similar issue on concurrent findings held as follows per my law lord and learned brother AUGIE JSC (rtd):
“It is well-settled that findings on primary facts are matters within the province of a trial Court and there is a

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rebuttable presumption that a trial Court’s findings and conclusions on facts are correct, therefore, such findings are accorded due respect in appellate Courts – see lbhafidon V. Igbinosun (2001) 8 NWLR (Pt. 716) 653 SC, wherein this Court, per Karibi-Whyte, JSC, stated as follows – “It is a well-established principle that an appellate Court will very rarely, if at all, interfere with the findings of facts made by the trial Court. This is because such findings of fact enjoy the privilege of passing through the furnace of acrimonious cross-examination, the tooth comb scrutiny of the observation of the witnesses’ reactions and assessment of the veracity of their testimony. Accordingly, such findings ought to be accorded due respect in appellate Courts, which did not have the advantage of the trial Judge.” So, findings of facts made by a trial Court, which passed through the furnace of acrimonious cross-examination, the tooth comb scrutiny of the observation of the Witnesses’ reactions and assessment of the veracity of their testimony; are accorded due respect in appellate Courts that did not have the advantage of the trial Judge, and that is exactly what the

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Court of Appeal did in this case – accord respect to the findings of fact made by the trial Court and affirm same.”
It must be understood that where there is concurrent finding by the trial and the intermediate Courts, this Court must always accord respect to such findings and be circumspect in interfering with such findings except in exceptional circumstances, like where it is apparent from the records that the inferences from established facts are patently wrong, or the findings do not flow from the evidence generated at the trial or there is inappropriate appraisal of the evidence led at the trial, except where any of these features is shown, this Court must resist the invitation by an Appellant to tinker with the concurrent findings.

The lower Court in this appeal accorded respect to the findings of the trial Court. I have not found any good reason to tinker with the findings of the lower Court, I therefore hold that the Appellant has nothing useful to urge this Court, the appeal is therefore lacking in merit and deserves to be dismissed, it is hereby dismissed.

The judgment of the lower Court delivered on the 2nd day of October, 2020 in

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appeal number, CA/AK/98CA/2014 is affirmed.
Appeal dismissed.