IN THE HIGH COURT OF IMO STATE
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT HIGH COURT OF JUSTICE, OWERRI
ON THE 21ST DAY OF JANUARY 2021
BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA
HOW/57C/2016
THE STATE
AND
OBIOMA EMEROLE
JUDGMENT
The Defendant is charged under the section 3 of Imo State Prohibition of Hostage Taking and related offence law No 4 of 2009.
The particulars of the offence read:
“OBIOMA EMEROLE, Ifeanyi Kingsley Chimankpa and others at large on the 15th day of March 2015 at Fire Service round about Owerri in the Owerri Judicial Division while armed with gun did abducted Okonkwo Okechukwu Stanley and kept him hostage until ransom of Five Hundred Thousand Naira (N500,000) was paid.
The PW1 and the only witness for the prosecution is Force No: 371338 – Sgt. Ezukwu Stephen. He stated:
“I am attached with the police Headquarters Owerri Monitoring Unit. I know the Defendant. I know why I am in court. On 13/5/15 a team of police men from Ngor-Okpala Police Division led by the DPO brought 3 suspected kidnappers to the Anti kidnapping Unit Owerri in company of one Mrs. Happiness Njoku. The case was referred to my unit led by DSP Chimaraoke Onwuka and I was directed to take over the case. The statement of the complainant was recorded. Independent witness gave police his own statement. The three suspects were arrested and interrogated, charged and their statements were reduced in writing. They all confessed to the crime which was reported against them. The execution of search warrant was conducted in the house and premises of the suspects except one of the suspect. Exhibits were recovered from them which they used during the operation. Toward the conclusion of the investigation one Eze, Eze Philip Onu came and indentified one of the suspects, 1st Defendant, among the people that kidnapped him and others. On the process, signal was received from Abuja to our office instructing us to transfer the case file to Abuja for proper investigation. And we complied accordingly and transferred the suspects and exhibits to Abuja Police Headquarters.
Under Examination
“The very evidence I gave in this court was in respect of investigation I conducted in alleged kidnapping of one Happiness Njoku. It is also correct that the Defendant are standing trial at court 8 in Charge No how/47C/2015. I was called to testify in a charge against the Defendants for kidnapping of Philip Onu. The role I played is in the recording of the statement of Eze Philip Onu. I do not know the date Eze Philip Onu was kidnapped. On the day that Philip Onu came to make his statement, the 2nd Defendant person was in detention already. In the statement of Eze Philip Onu I recorded he only mentioned the 1st Defendant. I do not know if Okonkwo Stanley Okechukwu made any statement. On whether he mentioned to the Police who came from Abuja to take the file that Eze Philip Onu did not mention the 2nd Defendant, he replied that the signal did not call for explanation. On the put question that he knows that the 2nd Defendant has no link to the commission of the alleged offence and yet he arraigned him, he replied that he was not the one that brought them to court. It is the 2nd Defendant that he not conduct search in his house. It was because prior to that he was sick. He did not take any statement from the 2nd Defendant respect of the offence. I did not investigate the case
The DW1 testified as follows:
I am Obioma Emerole. I am a handicraft man- aluminum fabricator. I was living at 119 Tetelo Road, Owerri, Imo State. I know the charge for which I am brought before this court. I do not know anything about it. I do not know the complainants. I have never seen them before.
Under cross examination:
It is not false that I do not know anything about the charge against me. I do not know the complainant. If he exists I do not know. It is not true that I, the 2nd Defendant and others at large took the complainant hostage. It is not true that I demanded the ransom of N500, 000. Nothing of such happened. I do not know him. I am not a Policeman. I do not carry gun. It is not true that I and my colleagues were the kidnappers that took him away. Such a thing did not happen. It is not true that I and my cohorts took his wife one Cynthia Okuoha hostage that same day. It is not false that I am aluminum handcraft man. That is what I do. I am a witness of truth.
At the close of evidence the counsel filed and exchanged addresses. S.A.Njoku with Nneoma Njoku (Miss) appeared for the Defendant while E.V. Ukoha-Nwachukwu appeard for the State. The addresses were adopted on 17-11-2020 and it was adjourned to 20-1-2021 for judgment.
According to Njoku Esq the Defendant’s final address was dated 9th October 2020 and filed on same day. He adopted same his final address on behalf of the defendant. He urged the court to find the defendant not guilty of one count charge of hostage taking and consequently discharge and acquit him.
He went on to submit that the charge does not relate Eze Philip Onu in any way whatever ever. Referred to Paragraph 4:14 and state that any reference to Eze Philip Onu is grossly irrelevant and of no moment. In 10 places the prosecution made references to Eze Philip Onu for which the defendant has been discharged.
He submitted that no confessional statement of the defendant was tendered. Submission of a counsel cannot amount to evidence. The court should not countenance it. He referred to page 2 of the address of the prosecution. Being that no such confession was tendered the prosecution cannot rely to it. Not one eye witness testified. The court is urged to hold that the prosecution has not proved her case and discharge and acquit the defendant.
Nwachukwu Esq adopted her address dated 16-10-2020 and filed on 20-10-2020. She relied on the address and urged the court to convict the accused person. She stated that the case of HRH Eze Philip Onu is a sister case to this case. He was kidnapped same day with the victim in this case by the defendant. She also stated that the State filed information and attached evidence including the statement of the victim which is all before the court.
She submitted that the IPO was a police officer and IPO of the sister case in which the defendant was also involved- HOW/47C/2016. The HOW/60C/2016 is the one struck out. The IPO is still testifying in HOW/47c/2016 and he is abreast of this case. She urged the court to discountenance the argument of the Defendant’s counsel and uphold the submission of the prosecution and find the defendant guilty as charged.
In his reply on point of law Njoku Esq. stated that the content of information does not amount to evidence before the court. That is why the prosecution has the duty to prove the case vivi voce. The content of proof of evidence is not equal to evidence before the court.
Resolution of Matter
Now the section 3 of Imo State Prohibition of Hostage Taking and Other Related Offences Law No. 4 of 2009 under which the charge is brought provides
“As from the commencement of this Law, any person who abducts another person or takes or keeps another person hostage with the intent to demand ransom is guilty of an offence and is laible on conviction to sentence of death.”
The essential elements of the crime as defined by law are
- Abducting, taking or keeping another person hostage.
- Intent to demand ransom
So it involves a seizure or detention of person with the intention to demand ransom. In EDOKUN V. STATE (2018) ALL FWLR PT 936 PG 1522 AT 1557 the court laid down the ingredients of the offence of hostage taking as follows:
- There must be evidence that a person was taking hostage.
- That it is the Defendant who in standing before the court that abducted him.
- And that the abduction was with the intent to demand ransom.
In Section 2 of Imo State Prohibition of Hostage Taking and Other Related Offences Law No. 4 of 2009, Hostage taking is defined to:
“mean taking and or holding a person(s) against the person’s will until certain conditions are fulfilled, failing which his life or well-being may be forfeited.
Ransom: means money or any other thing demanded by the hostage as a condition to release the hostage.
The provision in Abia State, Kidnapping and Hostage Taking Law No. 10 of 2009 similar to that of section 3 of Law No 4 2009 of Imo State was the issue in JOHN ONUABUCHI ISAAC v. THE STATE (2018)LCN/12261(CA) and the court stated:
“However, in Section 3(a) of the Kidnapping and Hostage Taking Law No. 10 of 2009, Laws of Abia State, it was stipulated that “Any person who for purposes of payment of ransom kidnaps and takes another hostage is guilty of an offence and shall upon conviction be liable to death.” The section clearly prescribes that the kidnapping and taking another hostage must have been actuated by the intention to ask for or for the purposes of payment of ransom. It did not provide nor did it intend that for the offence of kidnapping to be complete, the ransom must have been paid. It only prescribed manifestation of an intention by the abductor of demanding for or obtaining payment of ransom. What this postulates is that where the definition of kidnapping includes abduction for some specific purpose, the mens rea that the prosecution must prove in order to obtain a conviction must include that specific purpose. Therefore, it is not enough to prove that the defendant intended to abduct the victim. In order to get a conviction, the prosecution must prove that the defendant abducted the victim with the specific intent of obtaining payment of ransom. There must an indication on the part of the accused person of trying to obtain an advantage or holding the victim for ransom. The Prosecution has to prove beyond reasonable doubt that the accused intended to detain the alleged victim in order to demand and obtain a sum of money for the alleged victim’s release. It does not matter whether the accused in fact demanded money or whether he/she succeeded in obtaining any money. There must be some overt act manifesting that intention.” Per ORJI-ABADUA, J.C.A. (Pp. 43-45, Paras. D-D)
Now in view of the ingredients of the offence for which the Defendant is standing trial which I have above numerated, I will consider the evidence of the sole witness. The sole witness of the prosecution stated:
”Toward the conclusion of the investigation one Eze, Eze Philip Onu came and indentified one of the suspects, 1st Defendant, among the people that kidnapped him and others. In the statement of Eze Philip Onu I recorded he only mentioned the 1st Defendant. I do not know if Okonkwo Stanley Okechukwu made any statement”
And under cross examination he stated:
“The very evidence I gave in this court was in respect of investigation I conducted in alleged kidnapping of one Happiness Njoku”.
As can be seen from the one count charge contained in the Information, the Defendant is neither charged with the hostage taking of Eze Philip Onu whom the IPO said that he (Eze Philip Onu) identified the defendant as one of the suspects that kidnapped him and others. The Defendant is also not standing trial before me in respect of one Happiness Njoku in respect of which the PW1 (IPO) is testifying before me.
The Defendant’s offence as captured in the information is:
“—while armed with gun did abduct Okonkwo Okechukwu Stanley and kept him hostage until ransom of Five Hundred Thousand Naira (N500, 000) was paid”.
And yet the PW1 (IPO) said he does not know whether Okonkwo Okechukwu Stanley made any statement. From the evidence of the sole witness it is obvious that he is a total stranger to this particular offence of taking one Okonkwo Okechukwu Stanley hostage for which the defendant is standing trial before me.
I have taken a look at the proof of evidence and observed that about 17 persons were listed as witnesses for the prosecution in this matter. Admitted that the number of witnesses has nothing to do with prove of a case, it is profitable to call the witness(es) that are directly connected to the particular offence. Even as late as 2018, the State applied for additional witness but surprisingly only one witness was called. In NKEBISI & ANOR. V. THE STATE (2010) LPELR-2046(SC),(2010) 5 NWLR (PT. 1188) 471 S.C. it is stated:
“It is firmly established that although the burden on the prosecution is to prove its case against the accused person beyond reasonable doubt, the prosecution, has a discretion to call only those witnesses required to unfold its case. The law does not impose on the prosecution, the duty or function of both the prosecution and the defence. See the cases of Adaje v. The State (1979) 6-9 S.C. 18; Okonofue v. The State (1981) 6-7 S.C. 1 @ 18; Inusa Saidu v. The State (1982) 4 S.C. 49 @ 68-69 – per Obaseki, JSC and Okpulor v. The State (1990) 7 NWLR (Pt. 164) 581 @ 589, 592-593. There is no rule of law which imposes an obligation on the prosecution, to call a host of witnesses to prove its case. See also the cases of Ugwumba v. The State (supra); Hausa v. The State (1994) 6 NWLR (Pt. 358) 281; (1994) 7- 8 SCNJ. 144 and recently, Udo v. The State (2006) 15 NWLR (Pt. 1001) 178 @ 193; (2006) 7 SCNJ 552 @ 562.” Per OGBUAGU, J.S.C. (P. 25, paras. C-G)
I agree that the discretion as to who to call or not call as witness is that of the prosecution, but that discretion must be geared towards justice. Hence, I subscribe to the Statement in HURD V. PEOPLE, 25 MICH. 405, 416 (1872) to the effect that:
“The prosecutor, in a criminal case, is not at liberty, like a plaintiff in a civil case, to select out a part of an entire transaction which makes [the case] against the defendant, and then, to put the defendant to the proof of the other part …. The prosecuting officer represents the public interest, which can never be promoted by the conviction of the innocent…. [A]ll the witnesses present at the transaction, should be called by the prosecution, before the prisoner is put to his defense …. “
The prosecution counsel has called on me to look at the proof of evidence which included the alleged confessional statement of the Defendant and Police Investigation report. It is the correct statement of the law that the court can look at the documents in the court file. In CHIEF M.O.A. AGBAISI & ORS. V. E. EBIKOREFE & ORS (1997) LPELR-226(SC) (1997) 4 NWLR (Pt.502) the court stated:
“The next logical question is whether he has a right to look at the document in the file which was not tendered as an Exhibit. My answer to this question is in the affirmative. See: Ada v. Uku (1977) 5 FCA 218 at 227; Ogbuyiya v. Okodu & Ors. (1979) 3 LRN 318 at 324 and Ladunni v. Kukoyi (1972) 1 All NLR (Pt.1) 133. The next pertinent question is: if it were a plan that was amended as contended by the appellants, can the court look at it and make use of it? My answer is that it can as this Court did in its recent decision in Salami & Ors v. Oke (1987) 5 NWLR (Pt.63) 1 at 9; (1987) 2 NSCC 1167 at 1173 where Kawu. J.S.C. quoted with approval the views taken by the Court of Appeal, Ibadan Division (Uche Omo. J.C.A. as he then was and Dosunmu and Omololu-Thomas, J.J.C.A.) as follows:-
“I might as well deal with the related argument about the statement of defence that was later amended by another statement of defence. It was contended that the trial Judge has no right to refer to the Statement of Defence since it has been amended. This is not correct. Because it was amended does not mean it was expunged or struck out, and no longer part of the proceedings. The trial Court (Appeal Court) cannot shut its eyes against it, although it cannot consider it as the basis of the defence in the action.”
Again in AKINOLA V V. C. UNIVERSITY OF ILORIN (2004) 11 NWLR (PT.885) 616, (2005) ALL FWLR (PT. 259) 1934 AT 1964 it was stated:
A court is entitled to look at a document in its file while writing its judgment or ruling despite the fact that the document was not tendered and admitted as an exhibit at the trial. [Agbaisi v. Ebikerefe (1997) 4 NWLR (Pt. 502) 630; Agbahomovo v. Eduyegbe (1999) 3 NWLR (Pt. 594) 170 referred to.] (P. 650, paras. B-C
But there is a very important exception to this general principle of law which in my view is very essential in a criminal trial. it is stated in this case of A.G.,ANAMBRA STATE V. OKEKE (2002) 12 NWLR (PT.782) 575 AT 603 -604 PARAGRAPHS H- A by the Supreme Court per Ayoola JSC thus:
‘I am in entire agreement with Tobi, JCA, (as he then was) who qualified the general proposition that the court is entitled to make use of any document or documents in its file when he said: ‘There is one basic qualification of this principle of law and it is that the document or documents must have undergone the litigation process or the process of adjudication by the court or the parties have mutually come to an agreement as to their status in the litigation.’
It is indubitable that a confessional statement is a veritable instrument in the hands of the prosecution and the court where admitted can convict based on that alone. In ADAMU v. STATE (2016) LPELR-40326(CA) it is stated:
“A confessional statement is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. See Section 28 of the Evidence Act, 2011.” Per ABDULLAHI, J.C.A. (P. 22, Paras. E-F)
In ALIU v. STATE(2014) LPELR-23253(CA) it is stated:
“I need only state here that, there is no law that prohibits a court from relying upon and convicting on the confessional of an accused person. Thus, My lord, Muntaka-Coomassie, JSC in the case of Lasisi v. State (2013) All FWLR (pt 707) p.611 at 635 paragraphs C-E stated the law in the following words:-
“… It is a settled principle of law that courts can convict an accused person on his confessional statement if the statement was given freely, voluntarily and without threat of force on the accused person: Saidu v. The State (1982) 4 SC 41; Adebayo v. Attorney-General, Ogun State (2008) All FWLR (Pt.412) 1195. (2008) 2 SCNJ 352. Equally, a voluntary confession made by an accused person is relevant and admissible against him at the trial… It is for the trial Judge to determine at the end of hearing, whether the contents of the statement are true as part of his determination of the truth or otherwise of the whole case presented by the prosecution.”
However, before a conviction can be based on a confessional statement there is some hurdles that need to be surmounted by the Prosecution. In SAIDU v. THE STATE (1982) LPELR-2977(SC),(1982) 4 S.C. (REPRINT) 26 it is stated:
“A confession is irrelevant in a criminal proceeding if the making of the confession has been caused by any inducement, threat, or promise having reference to the charge against the accused person, proceeding from a person in authority (see Section 28 Evidence Law Cap. 49 LFN 1963). It has therefore long been established as a positive rule of Nigerian criminal law that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution that it was a voluntary statement. The principle is as old as the laws received from England and in England the principle is as old as Hale. See Ibrahim v. R. (1914) AC 559 at 609; Godwin Ikpasa v. The State (1981) 9 S.C 7 at 29; Corporal Jona Dawa and Anor. v. The State (1980) 8-11 S.C 236 at 258. The evidential value of a confession if true is very great indeed. It is very much sought after by police investigators and prosecutors. It lightens the burden of prosecution by dispensing with the need to call a host of witnesses in cases where there are no or very few eye witnesses.
A confession can support a conviction if proved to be made and true”.Per Obaseki, J.S.C. (Pp.18-19, Paras.D-C)
The Constitution of the Federal Republic of Nigeria, 1999 (as amended) guarantees a defendant in a criminal trial the right to be confronted by the witnesses against him. The defendant here needs to be confronted with the alleged confessional statement through the person who recorded it. It will be wrong for me to assume, regarding the alleged confession, that the defendant and the prosecution have reached an agreement as its status in this trial. It is only at the point of tendering the so called confessional statement that the Defendant will have the opportunity to test the confessional statement and the parties and the court will agree to its status. It is for this purpose that the administration of criminal justice has built in Trial-Within-Trial which usually arises when in the course of a criminal proceedings, a defendant objects to the admissibility of an extrajudicial statement. Considering the said confessional statement which is not tendered will amount to not giving the Defendant the opportunity to object to it on not to object it.
The exception to the general principle of law that the court can look at the document was much elaborated and explained with particular reference to proof of evidence in the case of OBINNA ORANIKA v. THE STATE. (2018)LCN/12040(CA), (2018) LPELR-45481(CA). The Court of Appeal, Owerri Division stated:
“The law is well settled, that no Court of law is empowered to make reference and or rely on any piece of evidence or document (as the case may be) which has not been properly and formally placed before it, in the course of reaching its decision in a case. See Goodnews Agbi & Anor. V. Chief Audu Ogeh & Ors. (2005) 8 NWLR (Pt. 926) 40 and Alhaji Chief Jibrim v. Izuagie v. Jimon Osuma Amuda & Anor. (2006) ALL FWLR (Pt. 294) 493. The only circumstance, whereby a Court is permitted to make reference or rely on evidence not tendered and formally admitted before it, is where the evidence or document falls under the categories of evidence or document that the Court is permitted to take judicial notice of, in accordance with the Evidence Act or permitted by any other law regulating the subject matter with which the evidence or document relates. See the case of Abdullahi & Anor. V. Sadauki & Ors. (2008) LPELR – 3557.
In the instant case, I am unaware of any law that gives the lower Court or any Court for that matter, the leverage or liberty to make reference and or rely on document contained in the proof of evidence but were not tendered and duly admitted before it. In as much as the fact that the appellant’s extra-judicial statement was included in the proof of evidence, which was front loaded by the respondent before the lower Court unless and until the said statement is formally tendered in Court and admitted, it is not permissible for the learned trial judge to make reference to it and or rely on it in his judgment.
This is because Proof of Evidence (and all exhibits attached thereto) is not by itself constitute evidence with which the trial Court or any Court whatsoever, is entitled to rely in its judgment; unless and until the ‘evidence’ or ‘exhibit’ contained in the proof of evidence is tendered and duly admitted in evidence, it cannot be used in deciding a case. The fact that the ‘evidence’ or exhibit(s) has been frontloaded as proof of evidence or alongside with a criminal information file (as the case maybe), does not automatically qualify it as admissible and reliable evidence, the ‘evidence’ or ‘exhibit(s) is merely frontloaded to inform an accused person(s) of the charge preferred against him and inform him in advance of the likely evidence that may be adduced against him, in line with the constitutional provision of Section 36 (6) (a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Thus, I do agree with the learned counsel for the appellant that the learned trial judge erred when he made reference and or relied on the extra-judicial statement of the accused that was not tendered and admitted in evidence. See the case of Odiaka v. The State (2013) LPELR-21977 (CA), where this Court, per Ogunwumiju, JCA, while deciding a similar matter held at pages 14 -16 as follows:
“Let me say right off that the proof of evidence is a document served on the defence and to the Court containing names of witnesses the prosecution want to call and a phrasy of what they intend to say. Every accused in a trial by information is entitled to the proof of evidence so that he can prepare a defence to the case the prosecution intends to make against him. It does not constitute evidence. The Court before whom it is filed cannot use any of its contents in aid of the prosecution or the defence. It is only evidence on oath given by a witness in open Court that is relevant and admissible in a criminal trial. Such evidence on oath may lay a foundation for the admission of relevant documents like extra-judicial statements, confessional statements, doctor’s report, extra-judicial witness’ statements, etc. Extra judicial witness statements can be found in the proof of evidence and the police case file. It is the duty of any party or counsel who wants to use the extra judicial statement of a witness to lay foundation through the witness to ensure that the said statement is admitted as an exhibit through the witness… it would have been, wrong in law or procedure for the learned trial judge to use any statement in the case file suo motu.”
See also the case of Federal Republic of Nigeria v. Wabara (2013) LPELR – 20083(SC).” Per OREDOLA, J.C.A. (Pp. 21-27, Paras. F-F)
It is recorded in the Holy Bible that:
“Then the Lord God took some soil from the ground and formed a man out it; he breathed life –giving breath into his nostrils and the man began to live”.
The proof of evidence no matter how formidable and overwhelming, there is need for the prosecution to breath life-giving breath into its nostrils through the witnesses for it to come alive and begin to live in the records of the court.
According to Oluwafemi Alexander Ladapo in “Effective Investigations, A Pivot To Efficient Criminal Justice Administration” African Journal of Criminology and Justice Studies: AJCJS, Vol. 4 No.1 1-16
“It is trite that the pivot of the criminal justice system is crime detection and investigation, which serves as the pivot of every criminal case. This is especially so in an adversarial system of criminal justice like that which is in operation in Nigeria. In an adversarial system of justice, it is the duty of the accuser referred to as the prosecutor, to ensure that all pieces of evidence which are legally required to prove the charge against the defendant have been collected and collated through investigation and is ready for presentation before the court, for the determination of the defendant’s guilt or innocence. Criminal investigation is so important to the entire criminal justice system that its absence, tardy or shoddy execution may lead to delay in the administration of justice, the victimisation of innocent citizens and escape of offenders from paying for their misdeeds and being reformed”
I agree with the above statement, however, no matter how thorough an investigation is, if the victim somersaults and important witnesses turn hostile and do not cooperate with the Prosecution due to one reason or the other there is nothing much the court of law can do. See OGUNDARE VS. STATE (1995) 5 NWLR (PT. 395)266 AT 285 PARAS B-E
I am unable to find that the Prosecution has proved her case against the Defendant beyond reasonable doubt. The Prosecution has not proved all the element of kidnapping and Hostage Taking under section 3 of Imo State Prohibition of Hostage Taking and Other Related Offences Law No. 4 of 2009 against the Defendant. The sole witness’s evidence is lacking in creditability and relevancy. And I cannot fall back on the proof of evidence, particularly the alleged confessional statement. In INUSA SAIDU V. THE STATE (1982) LPELR-2977(SC); (1982) 4 S.C. (REPRINT) 26 the Supreme Court PER OBASEKI JSC stated thus:
“It is to ensure that the innocent in our society is not deprived of his life and liberty that our laws have laid down very strict test of admissibility for confessional statements before they become available legal evidence for assessment and evaluation. Any piece of evidence which slips into the record of proceedings without passing the test of admissibility is not legal evidence and is liable to be expunged by the appeal court. It does not give the court any joy to see offenders escape the penalty they richly deserve but until they are proved guilty under the appropriate law in our law courts, they are entitled to walk about in our streets and tread the Nigerian soil and breathe the Nigerian air as free and innocent men and women. (underlining provided)
I view of all I have said; I am compelled to enter a verdict of discharge and acquittal. I so do.
I.M.Njaka
Judge
21-1-2021
Appearance: S.A.Njoku Esq.; with Nneoma Njoku (Miss) for the Defendant
E.V. Ukoha-Nwachukwu (Mrs.) CSC for the State