IN THE HIGH COURT OF IMO STATE
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT HIGH COURT OF JUSTICE, OWERRI
ON THE 27TH DAY OF JULY, 2023
BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA
HOW/60C/2021
BETWEEN
THE STATE
V
Mfon Samuel Akpan
Esther Wilson
JUDGMENT
By information filed on 14-10-2021, the Defendants were charged as follows:
Count 1
Statement of offence:
Conspiracy to commit trafficking in person contrary to section 27(a) of the Trafficking in Person (Prohibition) Enforcement and Administration Act, 2015 as applicable in Imo State.
Particulars of offence:
Mfon Samuel Akpan, Esther Wilson and Ifeoma Obodougo on or bout the 6th day of July, 2021 at ABC Transport Company Park Owerri, Imo State within the Owerri Judicial Division conspired with each other to commit felony to wit: Trafficking in human person of one Emmanuel Chibundu Ifeanyichukwu
Count 2
Statement of offence:
Trafficking in person contrary to section 13 (2) (b) of the Trafficking in Persons (Prohibition) Enforcement and Administration act, 2015 as applicable in Imo State
Particulars of offence:
Mfon Samuel Akpan, Esther Wilson and Ifeoma Obodougo on or about the 6th day of July, 2021 at ABC Transport Company Park, Owerri Imo State within the Owerri Judicial Division did commit felony to wit: traffic one Emmanuel Chibundu Ifeanyichukwu by harbouring and transporting him fraudulently and deceptively from Uyo to Owerri, Imo State
Count 3
Statement of Offence:
Conspiracy to buy and sell a human person contrary to section 27 (b) of the Trafficking in Persons (Prohibition) Enforcement and Administration Act, 2015
Particulars of offence
Mfon Samuel Akpan, Esther Wilson and Ifeoma Obodougo on or about the 6th day of July, 2021 at ABC Transport Company Park, Owerri Imo State within the Owerri Judicial Division did commit felony to wit: buying and selling of one Emmanuel Chibundu Ifeanyichukwu
Count 4
Statement of offence
Attempt to buy and sell a human person contrary to section 29 of the Trafficking in Persons (Prohibition) Enforcement and Administration Act, 2015
Particular of offence
Mfon Samuel Akpan, Esther Wilson and Ifeoma Obodougo on or about the 6th day of July, 2021 at ABC Transport Company Park, Owerri Imo State within the Owerri Judicial Division did commit felony to wit: attempt to buy and sell one Emmanuel Chibundu Ifeanyichukwu
The Defendants – 1st and 2nd Defendants pleaded not guilty to the charge.
Evidence of the Prosecution:
PW1: My name is Mr. Iroulor Edwin Ifeanyichukwu I am accountant with Righteous Group Uyo Akawibom State. I do not know Defendants before. I got to know them when I came to Oweri Police Command. On 7th day of February 2021 around 4am I heard something like bomb on my door. I woke up to go and check my siblings on the other room because it is two-bedroom flat. Heavy armed people with gun surrounded me then and robbed me and my wife. After robbing us they pushed us into the bedroom then they carried my baby boy Emmanuel and the case was properly reported to the police. It was people that told me through WhatsApp because the pictures of the people were uploaded in a WhatsApp and it went viral. So, friends who are aware of my story called and forwarded the pictures then I had to come down to Owerri Police Command. I made my complaint to Owerri Police command. Then Commissioner of Police called me. The day the CP called was the day I was supposed to see the baby. After interrogating and asking for evidence which I provided he ordered them to go and bring the baby for me. At the end of the day, they were not able to bring the baby for me, because by then, the commissioner for Women affairs, Uyo Akwa Ibom State, has come to carry the baby.
Cross examination
At that time, it happened it was reported at Akwa Ibom. I can produce proof of evidence of the report made at Akwa Ibom police station. The woman that gave birth to that child is not my girlfriend. I am legally married with pictures of my marriage. It was registered in Owerri. It is not true in my statement to the police; I told the police that the woman that gave birth the child is my girlfriend.
When the robbers came in into the flat, they broke into my house. They robbed me they also collected my handset and my wife handset. It is not true that the lady I impregnate that gave birth to that child when I leant of the abandonment of the child, I approached the 2nd Defendant and informed her of my predicament as at that time. It is not true after telling her of my predicament, I suggested to her if she will find somebody who will take care of the child which she did.
The person that gave birth to my child is not my girlfriend, she is my wife
I am the father of the child. I can show evidence that the child is my child. I will give it to my counsel. I am not part of the alleged charge of tracking in persons and will never be.
PW2
AP No 205135 Inspector Happiness Edward attaché to D9 section State CID Owerri, I know the defendant in the case of conspiracy/ child stealing which I investigated. On 16-7-2021 a case of conspiracy and child stealing was referred from Area Command Owerri to state CID. On the receipt of the case file, 3 female suspects namely Mfom Samuel Akpan, Esther Wilson and Ifeoma Obodougu and a child of about 8 months old, arresting officer one Inspector Maurice volunteered statement. One Miss Chioma Oduma also volunteered her statement. The 3 suspects were interrogated cautioned and they volunteered their statement under caution. In their statement they admitted the crime. And the confessional statement was attested by a senior police officer. I took photograph of the two suspects with the child with my phone techno hot 5. I latter went to business center where a cannon digital printer was used to print the picture. The child was taking to Government Approved Orphanage home for custody. While the case was ongoing we sent a signal Uyo Akwa Ibom State and the team of investigators came from Akwa Ibom and confirmed that the complainant complained about child stealing. At the end of investigation the report was written and signed by DCP – Mr. Ajala. And the matter was charged to magistrate court Owerrri and the case was later transferred to ministry of justice for prosecution.
In the month of July 2021 at Uyo the two suspect here- defendant told us in that statement that one Etebom gave them his son. That the girl friend abandoned the child and that he cannot take care of the child. They should help him to look for someone to take care of the child. Mfom called one of her male friends one Ikenna Akudike who resides at PH. Ikenna told them that he will negotiate for a buyer. Which they negotiated at the sum of N400, 000, Ikenna also gave a woman number who is suspected to be the buyer. Then on 6-7-2021 the Etebom brought the child to a park on that faithful morning, the boarded a vehicle from ABC park from Uyo to Owerri. On their way coming the little child was crying seriously inside the vehicle, the passengers asked Esther Wilson who was carrying the child if she is the mother of the child and she said yes. They tried everything possible to see that child is stopped carrying but to no avail. So when they got to Owerri, one of the passengers who gave statement who was not comfortable, she suspected that they may not be biological mother of the child. At the park the said Chioma insisted that Esther must breast feed him at the park. At that point she was not able to breast feed the child. While they were still deliberating to feed or not to feed one of the suspects – Ijeoma Obodugu was at Fire Service waiting to receive them as they arrived at Owerri. She was calling them asking them where they are without knowing that police has arrested the suspects with the baby boy. So that was how she was arrested by the police of the Area Command. Ijeoma in her statement said that she was sent by her male friend Ikenna Akudike to come and receive the two suspects coming with the child from Uyo. That she was not the buyer. While the two suspects in the statement said they actually came to Owerri for the purpose of selling the child at the rate of N400, 000. The said Ikenna is still at large.
The statement of the 1st and 2nd defendants are admitted and marked exhibits 1 and 2 respectively. Confessional forms are marked exhibits 3 and 4
Statements to the police at Area Command are marked exhibits 5 and 6
Statement of the complainant is marked exhibit 7
Chioma Udoma statement is admitted and marked exhibit 8
Investigation report is admitted and marked exhibit 9
Photograph I took of the defendant and the baby is admitted as exhibit 10.
Inspector Edward Happiness is my name. We worked as a team and I am among the team. It did not start from my hand. It is started from Area Command Owerri before the transfer of the matter to me.
I told the court that one Etebong handed her over the babe
The people that started the investigation went with the suspect to Akwa Ibom and did not see the Etebong.
It was the people that started the investigation that went to Uyo
I did not go to Uyo there was no point going to Uyo since people who started the matter went to Uyo in search of Etebong but he was nowhere to be found.
I told the court that the child came to my possession in the course of my investigation. I also told the court that I took photograph of the child which I tendered. When I took the photograph, the defendants were present. I am aware that some other persons are claiming fatherhood of the child. Presently the child is with commissioner of women affairs Uyo Akwa Ibom. The child can be produced. One Edwin is the father of the child
Eteobong is said to be the person that handed over the child to the defendants to sell. I do not know if he the second father to the child. I do not know if that one is contesting the father hood of the child. I have told the court that somebody else is laying claim to fatherhood of the child. The area commander went to Akwa Ibom in search of Eteobong but he was nowhere to be found even the defendant do not know where he stay because they met at the park. According to the defendant in their statement. They do not know where he stays. The area commander personally went to Akwa Ibom in search of him with the defendants. I would not know if he dropped any invitation at Akwa Ibom command. The name of the complainant is Edwin. He told me he is the father of the child.
There was no evidence to the effect that Edward is the father of the child but he produced the birth certificate of the child. I concluded my investigation. I am not aware that the court made an order for the production of the child. It is not true that the report I made was not complete.
On 9-11-2022 the defendant opted for no case submission. The counsel filed and exchanged addresses.
The defendant’s submission.
According to the counsel a submission that there is no case to answer may properly be made and upheld:
- When there has been no evidence to prove an essential element in the alleged offence;
- When the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict upon it. See REGINA VS COKER & ORS (1952) 20 NLR 62 AT P. 63 where the Court held: “the meaning of a submission that there is no case to answer is that there is no evidence on which, even if the Court believe, it could convict. The question whether or not the Court does believe the evidence does not arise”.
The counsel went on to state that the charge against the accused before the Court are:
- Conspiracy to traffic a human person
- Trafficking in person by harbouring and transporting him fraudulently and deceptively;
- Buying and selling a human person and;
- Attempt to buy and sell a human person.
It is submitted on (ii) above, that is, trafficking in human person by harboring and transporting one Emmanuel Chibundu Ifeanyichukwu fraudulently and deceptively, that for prosecution to establish the essential element of this offence:
- The prosecution has to establish the fact that giving out a child for adoption ordinarily is an offence and;
- The prosecution has to establish that the Complainant is indeed the father of the child.
It is submitted on (a) above, that there is no evidence laid by the prosecution that giving out a child ordinarily for adoption is unlawful. It is not an offence to give out a child for adoption and that the Defendants were lawfully transporting the said baby. According to the counsel, by the reason of this submission there is no conspiracy by the Defendants to traffic in human person and that (i) above does not apply.
It is submitted on (b) above, the issue is medical report. There is no medical report or evidence linking the complainant with the said Emmanuel Chibundu Ifeanyichukwu as his son. The court is urged to hold that there is no complainant in this matter.
It is submitted on (iii) above, that is, buying and selling a human person, as follows:
- There is no evidence before the Court of price negotiation of the child by the Defendants;
- There is no evidence of cash transfer for the purchase of the said child to the Defendants, and
- There is no buyer of the said child since the name of the 3rd Defendant has been struck out.
It is submitted that since the act of buying and selling has not been established by the prosecution, (iv) above, that is, attempt to buy and sell a human person does not stand.
It is submitted that the prosecution has not called for evidence, the number of witnesses on record, he is bound to call. The court is urged to hold that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. See S. 167 (d) Evidence Act. The court is urged to discharge the Defendants.
Prosecution reply
The Prosecution raised issue determination as:
“Whether a Submission of No Case to Answer can avail the Defendants”
The counsel referred to Section 202 of the Administration of Criminal Justice Law of Imo State, 2020 and submitted that from the provision the Court is essentially to be guided in determining whether or not to uphold the Defendants’ No Case Submission by the conditions set out in Section 202 (2a-e) of the ACJL. According the counsel, the above guides were prior to the enactment of the ACJL laid down in a plethora of cases such as Ibeziako v. COP (1996) 1 ALL NLR P. 61; Daboh v. State (1977) 5 SC P. 197, Mohammed Sahitta v. F.R.N. (2009) 10 NWLR (Pt. 1149) 403.
4.2. The Counsel also referred to Ababcha v State (2002) 7 SCNJ P. 1, the Supreme Court described the phrase “prima facie” thus; “a prima facie case is disclosed when evidence if uncontroverted and if believed, will be sufficient to prove the case against the accused”.
The counsel went Under section 135 of the Evidence Act, 2011, the evidential burden is placed on the prosecution to prove the commission of a criminal offence beyond reasonable doubt. However, in a submission of No Case to Answer, the prosecution is not required at that stage of the case to prove the commission of the offence beyond reasonable doubt, any evidence which prima facie links the defendant with the commission of the offence will suffice for the defendant to be called upon to put up his defence. See Daboh v State supra and section 203 (1) of the Evidence Act.
It is submitted that the critical question for determination is whether or not the prosecution has by the evidence adduced by its witnesses established any of the ingredients of the offences of conspiracy, trafficking in person and attempt to buy and sell a human person with which the defendants were charged. For the offence of conspiracy, it has been established in a plethora of cases that the offence of conspiracy is the agreement of two or more persons to do an unlawful act or to do a lawful act by unlawful means. She relied on Njovens v. State (1973) LPELR-2042 SC, Clark v. The State (1986) 4 NWLR (Pt. 35) 381, Dr Segun Ogunye v. The state (2001) 2 NWLR (Pt. 697) 311.
According to the counsel, conspiracy is often inferentially deduced from the acts of parties involved, focused on a common criminal purpose. The prosecution proved that the defendants agreed to traffic Emmanuel Chibundu Ifeanyichukwu and intended to sell him for N400,000. Both defendants confessed to the crimes in their statements at the police station, and when the prosecution sought to tender them, they did not retract, deny, or admit to making or signing the confession involuntarily. The accused person has the right to object to the admissibility of their confession in a criminal trial.
According to the counsel, the essential elements of the offence of trafficking can be deduced from section 13 of the Act, while that of buying and selling of a human person is contained in section 21 of the Act. For the offence of trafficking, one of its essential elements is the transportation of the victim from one point to another by means of fraud or deception etc. In the extant case, the transportation of the victim by means of fraud and deception as confessed to by the defendants in their statements establish the elements of the offence and point to the guilt of the defendants. The defendants also confessed that they had concluded arrangements for the sale of Emmanuel Chibundu Ifeanyichukwu contrary to section 21 of the Act and were subsequently on their way to deliver him to the buyer and collect the sales price of N400, 000 (Four Hundred Thousand Naira) when they were apprehended.
The counsel went further to argue that these elements were well proved by the prosecution vide the uncontested confessional statements of the defendants and the evidence of PW2 which was not discredited and rendered unreliable by cross-examination. More so, there is uncontroverted evidence linking the defendants with the offence with which they were charged as they are not denying the existence of facts, but are rather alleging that they were transporting the victim for adoption purposes. The court is urged to discountenance the defence Counsel’s unfortunate and feeble submissions as regards adoption as the defendants are not licensed adoption agents.
According to the counsel, it has been decided in a plethora of authorities, that there are three ways by which the prosecution can prove the guilt of an accused person in a criminal trial as follows: By eye witness account; or By circumstantial evidence; or By confessional statement of the accused person.
The court is urged is not to be persuaded that on the evidence and materials supplied by the prosecution, a no case to answer submission can avail the defendants. It cannot be successfully argued that legitimate questions in the context of the charges have not been raised requiring a response from the defendants. The subtle contention by defence Counsel that the required proof at this stage is one beyond reasonable doubt is grossly misconceived and erroneous.
On the issue of the prosecution not calling the number of witnesses on record, counsel referred to Adeyinka Ajiboye v. F.R.N (2018) LPELR-44468 (SC). The court is urged to discountenance and overrule the defence Counsel’s
RESOLUTION OF MATTER:
I have considered evidence before me as well as the submissions of the counsel. The core issue is whether the prosecution has provided sufficient evidence on which a reasonable tribunal may convict where the defendant opted to rely on ‘no case submission’.
The two key documents as a guide in this exercise are the Imo State Administration of Criminal Justice Law, 2020 and the High Court of Justice Imo State Practice Direction, 2022.
Section 202 of the Imo State Administration of criminal justice law, 2020 provides thus:
- Where at the close of the evidence in support of the charge, it appears to the court that a case is not made out against the Defendant sufficiently to require him to make a defence, the court shall as to that particular charge, discharge him
- In considering whether a case has been made out against the defendant under subsection (1) of this section, the court shall, in the exercise of its discretion have regard to whether:
- An essential element of the offence has been proved.
- There is evidence linking the defendant with the offense with which he is charged.
- On the face of the record, the evidence of the persecutor has been so discredited and rendered unreliable by cross examination that it would be unsafe to convict on such evidence.
- The evidence so far led is such that no reasonable court or tribunal would convict on such evidence
- Any other ground on which the court may find that prima facie case has not been made out against the defendant for him to be called upon to answer.
In furtherance to the objectives of the ISACJ, the Hon the Chief Judge of Imo State issues a practice direction, the High Court of Justice Imo State Practice Direction, 2022 which provided in paragraph 11 thus:
- A defence counsel, who desires to make a no case submission at close of the case of the Prosecutions, shall first indicate if he or she would not rely on such submission of no case to answer
- A court before which a counsel shows no willingness to rely on a submission of no case to Answer may decide on whether or not to allow such application.
- Where in a criminal proceeding a defence counsel gives indication to rely on his or her no case to Answer, the court shall proceed to give its judgment after hearing the submission of counsel in the matter
My understanding of section 202 is that it bestowed an enormous responsibility on the trial judge. It is a form of statutory discretion. The court may suo motu, taking into the consideration the evidence before it, hold that it is insufficient to require the defendant to enter his defence. In my view the tenor of this provision accommodates the trial court embarking on this exercise on its accord or on the prompting of the defendant.
In view of this provision, the silence of the trial court at the end of the evidence of the prosecution may be taken as a confirmation that there is something for the Defendant to rebut.
The Practice direction has come to clarify that where the trial judge did not see the need to say that there is no sufficient evidence to call upon the defendant to defence and the counsel to the defendant feels otherwise, the counsel should indicate whether he wants to rely on his submission of no case to answer or not. Where he says he is relying on it the court will go ahead and convict or acquit the defendant solely on tat submissions. Where he says he is not relying on it then the court will decide whether to allow him make the submission or not.
Speaking for myself, most of the delays I criminal trials are the two pillars of: (1) trial within trial and (2) no case submission. In each case the trial judge is forced to write judgment within judgment. In this he must navigate the landmine aided by precedents and law.
The Administration of Criminal Justice Act or Law as promulgated in the State and in the Federal is aimed at curbing these delays.
In view of the Practice Direction and the counsel having indicated that he is relying on his no case submission I will proceed to deliver a judgment in this case.
Under the section 13 (2) (b) Any Person who recruits, transport, transfers, harbours or receives another person by means of – abduction, fraud, deception, abuse of power or position of vulnerability commits an offence and is liable on conviction to imprisonment for a term of not less than 2 years and a fine of not less than N250,000
Under section 27(a) Any person who conspires with anther to commit an offence under this Act is liable – where the offence is committed, to the punishment provided for the commission of the offence.
Section 29 Any person who attempts to commit any offence under this Act is liable on conviction to half the punishment for the offence.
On the 6th day of July 2021, the defendants were found carrying a baby indentified as Emmanuel Chibundu Ifeanyichukwu to whom it appears they defendants are not related. They were therefore arraigned under the Trafficking in Persons (Prohibits) Enforcement And Administration Act, 2015.
From the evidence before the court which included the statements made by the Defendants, it is obvious that the child in question did not get to them through any known legal procedure. The story behind their possession of the baby is so hazy that no legal telegraphic lenses can see clearly through it.
The line of cross examination of prosecution witness tinted towards suggesting that they were in possession of the baby for purposes of adoption of the baby or arranging for the adoption of the baby. Illegal adoption is not specifically mentioned as is sexual exploitation, forced labour etc but it is a form of child/human trafficking. None of the defendants is a government agent or runs an authorized motherless babies’ home.
In NGOZI NWOKOCHA V. THE STATE (2019)LCN/12635(CA) the court stated:
“To part resolve this issue, the question that must be answered is whether the buying and selling of new born babies or minors as in this case for whatever reason is illegal. Prima facie the buying and selling of new babies or minors is not illegal because that is what an adoption entails but where as in this case, the Appellant who bought the baby and the person who sold her baby are persons without the authority to give or receive a baby in the name of adoption, the Appellant not being a Government Agency or duly authorised agent of Government that can sanction such agreement as she does nor run a recognized/licensed Motherless Baby’s Home authorised by Government of Borno State, I hold that the Appellant and Zara agreed to do or cause to be done an act which though not prima facie illegal but by illegal means. Children are not commodities to be bought in the open market as there are procedures involved in adopting a child. So, I agree with the Respondent and the learned trial Judge that there was a conspiracy between the Appellant and one Zara to do an act by illegal means, which amounts to criminal conspiracy.”
It is clearly stated and agreed to by the defendants that the baby found with them does not belong to them and is not related to them in any form. It is their duty to explain how the baby came to be with them and it was legal. The failed to do so.
The Government should consider making it open and easy for genuine child adoption. It will put a check on children falling into the hands of persons who do not have genuine need of them.
Having considered the evidence before me, I am of the firm view that the prosecution has proved her case.
The defendants are found guilty as charged and are sentenced as follows:
- Each is to serve 2 years term of imprisonment and a fine of 250,000.
- The term of the imprisonment shall include the number of days spent in custody.
I so hold.
I.M.Njaka
Judge
27-7-2023
Appearance: U.A. Mbanaso (Mrs.) SC, for the Prosecution
Chukwuma Chikezie Esq., for the Defendants