By Editor

Ogar v. State
CITATION: (2021) LPELR-55924(CA)

In the Court of Appeal
In the Kano Judicial Division
Holden at Kano

ON WEDNESDAY, 27TH OCTOBER, 2021

Suit No: CA/KN/411C/2019

Before Their Lordships:
ITA GEORGE MBABA Justice, Court of Appeal
HABEEB ADEWALE OLUMUYIWA ABIRU
Justice, Court of Appeal
USMAN ALHAJI MUSALE Justice, Court of Appeal

Between
LOVE OGAR – Appellant(s)

And
KANO STATE – Respondent(s)

LEADING JUDGMENT DELIVERED BY ITA GEORGE MBABA, J.C.A.
FACTS
The Appellant as the Accused person was charged at the trial Court for the offence of conspiracy to kidnap and offence of kidnapping which are punishable under SECTION 97 OF THE PENAL CODE LAWS OF KANO STATE and SECTION 274(A) OF PENAL CODE LAW OF KANO STATE (AS AMENDED) respectively.

Upon being arraigned on 8/6/2015, the Appellant pleaded NOT GUILTY to the charge. The Respondent called 4 witnesses and tendered exhibits to prove the charge. At the end of the Respondent’s case, the Appellant filed a no-case submission, which was overruled. She entered her defence as a sole witness.

At the conclusion of the trial, the Trial Court in its judgment resolved the issue of conspiracy in favour of the Appellant but ruled that the evidence of the Appellant corroborated the evidence of PW3 (a minor; one of the victims of the alleged offence) which in turn has shown that the Respondent established the case of kidnapping contrary to SECTION 274(A) OF THE PENAL CODE LAW OF KANO STATE against the Appellant. Consequently, the Appellant was convicted for kidnapping, and sentenced to nine (9) years imprisonment and a fine of Two Hundred and Fifty Thousand Naira.

Dissatisfied with the judgment, the Appellant appealed to the Court of Appeal.

ISSUES FOR DETERMINATION
The Court of Appeal determined the appeal on the sole issue as follows:
“Whether the trial Court was right to hold that the evidence of the Minor (PW3) was corroborated by the Appellant to establish the offence of kidnapping, in the absence of evidence of the driver who drove the Appellant and the Children to the Police Post?”

APPELLANT’S SUBMISSION
The learned counsel for the Appellant argued that the failure of the Respondent to call a vital witness; the driver of the vehicle that carried the Appellant, the other passengers and the children, was fatal to the case of the Respondent. He further contended that the failure of the trial Court to properly address the said issue amounted to a denial of the Appellant’s fair hearing. He relied on the case of TANKO VS UBA (2011) ALL FWLR (PT 556) 408.
Counsel submitted that the trial court considered the case on a single issue as formulated by the Court, which was identical to the Issues 1 and 3 of the Respondent. That the trial court failed to consider the five issues he raised at the trial for determination. Appellant’s counsel then relied on the case of RASALU VS AJIJOLA (2018) ALL FWLR (PT 931) 560 and argued that when a party submits an issue for determination before the Court, it is only natural, just and fair for the party to hear the legal position of the Court on the said issue.

Learned counsel for the Appellant stated that PW3 was a minor, whose evidence was taken in compliance with SECTION 209(1) OF THE EVIDENCE ACT, 2011 and that such evidence needed corroboration. He argued that it was an error and misconception for the trial Court to say that part of PW3’s evidence was corroborated by the Appellant.

He stated that the Respondent did not prove the ingredients of the offence, as per the SECTION 271 OF THE PENAL CODE LAW OF KANO STATE which states thus:
“Whoever takes or entices any person under fourteen years of age, if a male, or under Sixteen (16) years of age if a female, or any person of unsound mind out of the keeping of lawful guardian of such person, without the consent of such guardian, or conveys any such person beyond the limit of the state, without the consent of someone legally authorized to consent to such removal, is said to kidnap such person.”

RESPONDENT’S SUBMISSION
It was the contention of the Respondent’s counsel that the Appellant failed to obtain the leave of the Court of Appeal to appeal because the grounds of the appeal involved questions of facts or mixed law and facts.
He argued that failure to call the driver cannot lead to invoking SECTION 167(D) OF THE EVIDENCE ACT; that the Respondent has the right to decide who to call as a witness and cannot be dictated to by the Appellant.

On the contention of whether the evidence of PW3 was corroborated, Respondent’s counsel answered in the affirmative; he submitted that corroboration need not consist of direct evidence that the accused committed the offence, nor does it amount to confirmation of the whole account given by witness. He relied ON ISAH AHMED VS STATE (2011) 7 NWLR (PT.1227) 89. He added that the evidence of the minor (PW3) was corroborated by the confessional statement of the Appellant.

On whether the Prosecution proved the kidnapping charge beyond a reasonable doubt, counsel answered in the affirmative.

RESOLUTION OF ISSUE
On the argument of the Respondent’s counsel that the Appellant needed the leave of the Court of Appeal to argue the grounds of appeal, on the ground that they touched on issues of facts and mixed law and facts, the Court stated that the Respondent’s counsel was wrong to have argued such. The Court then stated that the Appellant was entitled to appeal, as of right, under SECTION 241(1) OF THE 1999 CONSTITUTION, where the appeal is against a final judgment of the Trial Court, sitting at first instance. That this being an appeal against a final judgment of the High Court, sitting at first instance, the Appellant did not require leave of Court to file any ground of appeal, whether of law, facts, or mixed law and facts. See SECTION 241(1)(A) OF THE 1999 CONSTITUTION (AS AMENDED); DANKWAMBO VS ABUBAKAR & ORS (2015) LPELR–25716 (SC).

Also, on the contention of the Appellant’s counsel that the trial court failed to consider the 5 issues he raised for the determination of the suit at the trial Court, but rather adopted a single Issue, the Court held that the Appellant’s counsel was confused as to the position of the law. The Court pointed that the duty of Courts to consider and pronounce on all the legal issues thrown up in a case at the trial should be distinguished from issues for determination which is applicable in the instant case.

The Court stated that Courts have the liberty to adopt the issue(s) as formulated by parties or to formulate issue(s). See the case of INEC VS YOUTH PARTY (2021) LPELR–54802 (CA).

To the main grouse of the appeal which is on corroboration, the Court stated the fact that the trial court relied only on the evidence of the 7-year-old (PW3) which was against the Appellant to convict the Appellant.

The Court then relying on the provisions of SECTION 209(1) (2) AND (3) OF THE EVIDENCE ACT 2011 which states thus:
“(1) In any proceeding in which a child who has not attained the age of 14 years is tendered as a witness, such child shall not be sworn and shall give evidence otherwise than on oath or affirmation, if in the opinion of the Court, he is possessed of sufficient intelligence to justify the reception of his evidence in all cases.

(2) A child who has attained the age of 14 years shall, subject to Section 175 and 208 of this Act, give sworn evidence in all cases.

(3) A person shall not be liable to be convicted for an offence unless the testimony admitted by virtue of Subsection (1) of this Section and given on behalf of the prosecution, is corroborated by some other material evidence in support of the testimony implicating the defendant” and held that the evidence of PW3, a Minor, needed corroboration.

The Court opined that the corroboration should have come from the driver of the vehicle, who took the Appellant and the children to the Police. That the driver would have explained how the children boarded the vehicle, and the role of the Appellant if any.

The Court further stated that it was a grave error for the Respondent to have excluded the driver of the vehicle from giving evidence in this case.

The Court relying on SECTION 271 OF THE CRIMINAL CODE LAW, stated the ingredients required from the Prosecution to prove the charge of kidnapping a minor as follows:

(1) The victim (kidnapped) was under the age of 14 years (male) or 16 years (female).

(2) The victim was taken or enticed by the accused person, away from lawful custody or guardianship, without consent

(3)The victim was taken beyond the limit of the State, without the consent of the person legally placed to give consent. See ADESAKIN VS THE STATE (2012) LPELR–7883 (CA).

The Court held that the failure of the Respondent to establish that the Appellant was the one who took the children to board the vehicle, going to Kaduna, in the absence of evidence of the driver, or one who saw when the children boarded the vehicle did not establish any of the ingredients of the offence.

The Court opined that in the absence of credible evidence corroborating the evidence of the PW3, the Minor, the judgment of the trial Court was founded on speculation and suspicion. That bylaw, suspicion, no matter how strong, cannot become evidence needed to find conviction. See SALE VS THE STATE (2017) LPELR–41992 (CA).

In conclusion, the Court held that the charge against the Appellant was not proved beyond a reasonable doubt.
HELD

The appeal was allowed and the conviction and sentence of the Appellant by the trial High Court were set aside. The Court of Appeal entered a verdict of not guilty for the Appellant.
APPEARANCES:
YA’U ABDULLAHI UMAR, ESQ.
– For Appellant(s)
HASSAINI HASSAN SULAIMAN,
-For Respondent(s)
Assistant Director Civil Litigation, Kano State with
LAMIDO ABBA SORONDINKI, CSC

Compiled by LawPavilion