IN THE CHIEF MAGISTRATE COURT OF LAGOS STATE
HOLDEN AT COURT 15, IKEJA, SITTING AT OSHODI
TODAY FRIDAY THE 27TH DAY OF JANUARY, 2012
BEFORE HIS WORSHIP MRS. M. R. OSHO-ADEBIYI
COMMISSIONER OF POLICE
IBIYEMI OLUWATOYIN EJIM
BOLANLE ADETOKUNBO MATILUKO
The three defendants were arraigned before this honourable court on a three count charge of conspiracy to commit felony to wit kidnapping contrary to S.516 Criminal Code; unlawful imprisonment contrary to S.364(2) Crim. Code and assault with a horse whip and handcuffs contrary to S.355 of the Criminal Code. All three defendants pleaded not guilty to the three count charge. Trial commenced on the 24th June, 2010 and the following is the prosecution’s case:
That pw1 is a brother to the three defendants. That on 19th June, 2007 at about 6.55am pw1 peeped through his window and saw the three defendants in company of some airforce men who asked him to open his door, that pw1 refused and they broke his door open. That in the process of breaking his door open, he hid his junior brother pw2 at the back of his door. That after gaining entrance, the defendant and the said naval men beat up pwl, handcuffed him and drove him away in a Toyota starlet vehicle to their father's house at 11, Akinpelu street, Oshodi, that on getting there the defendants and the naval men tried in vain p locate pw2, that out of annoyance the 3 defendants and the naval men grabbed one Joshua Ikelebe, a friend to pw2, beat him up and threw him into the boot of the car. That both of them were driven in the said Toyota starlet car to Shasha airforce base where they were again beaten mercilessly. Pwl further testified that the said airforce men included one Musa Godwin Dili a.k.a M.C.Dili Osagie and Sergeant Adebowale, That he was stripped naked and hung in the air by the said airforce men with his three sisters watching after which pw1 was given a document consenting to the sale of his father's house forced to sign the said document. When he was eventually released PWI had gone ahead to report the incident at Akinpelu police station from where he was advised to go to the Lagos State Teaching Hospital where he was-eventually treated and given some prescription drugs and doctor's report as evidenced in EXHIBIT M4, M6a and M6b Before going to the hospital for treatment, pwl had taken a photograph of himself evidencing scars he got from his ordeal otherwise known as EXHIBIT M4. Under cross-examination, pwl denied attacking the airforce men but re-iterated that the 3 defendants came to his house in company of the airforce men who beat him up, handcuffed him dragged him into a car and drove him down to the airforce base at shasha, that when they got to Shasha the three defendant, joined the airrorce men in beating him up and the 3rd defendant in particular collected a baton from the airforce men and beat him up again Pwl further confirmed that when the airforce men came to Ns house with the three defendants he had to hide his brother under his bed but his brother saw all that happened although the airforce men and his sisters did not see his brother. Pw2 on the other hand testified that the three defendants are his sisters and pwl his brother. That on 19th June, 2007 when the said airforce men came knocking on his brothers door in company of the 1st defendant. That pwl had hidden him behind his door to shield him from the airforce men and 1st defendant and that the airforce men had broken into pwl-s apartment, beat up pwl, handcuffed pwl and drove him away in a Toyota starlet vehicle. That he hattgone to report at Akinpelu police station but was informed that the airforce men had already been to the police station with pwl but the police were unable to stop the said airforce men from driving away with pwl to the airforce base. That a friend eventually helped in securing the release of pwl from the airforce base. That when he saw pwl after he was released, he was unable to recognize him as he had bruises all over his face and body. The matter was later reported to the police who conducted their investigation before charging the matter to court Under cross-examination, pw2 re-iterated that the airforce men in company of 1st defendant-had broken into the apartment of pwl and that he saw all that happened because he was hiding behind the curtain, when asked to narrate the role the 3 defendants played at pw1’s house, pw2 replied that 1st defendant simply came with the airforce men into pwl-s apartment but did nothing at the scene while the 2"" and 3rd defendants were outside the apartment. Pw2 also admitted that contrary to evidence of pwl, they had once been invited to Panti State CID over threat to Life and that the feud between the three defendants and pwl and pw2 is as a result of the 3 defendants attempting to sell their father's property. The investigating police officer pw3 testified that he had received directives to investigate a petition dated 20th June, 2007 otherwise known as EXHIBIT M4, that on receiving the petition and noting its urgency most particularly disturbing how the airforce men harassed and intimidated the police at makinde police station, he had immediately sent a signal, otherwise known as EXHIBIT M5 to makinde police station to transfer the 3 defendants plus the case file to pw3 at monitoring unit, Lagos, same was transferred to the Commissioner of Police, monitoring unit via a transfer signal otherwise known as EXHIBIT M6. Pw3 further testified that after initial investigation, he took the statements of the three defendants otherwise known as EXHIBIT M7, MB and M9. That the 3 defendants after writing their statements confessed to have invited the airforce men to brutalise and kidnap their brother which evidence of the torture was all over the body of pwl, that the 3 defendants indeed invited the airforce officers who tortured and brutalized pwl. Prosecution thereafter closed its case.
Learned counsel to the defendants subsequently opened its case and the following is the testimony of dw1: that herself, the 2 defendants.pwl and pw2 are all of the same parents. That their father had requested a family friend of theirs, an airforce officer named M.C.Dili to try and broker peace between the defendants, pwl and pw2. That I"1 defendant had accompanied Dili to the house of pwl and on getting there pointed out the door to the apartment of pwl to Dili, that Dili knocked on the door of pwl with 1st defendant standing behind him, that pwl opened his door and Dili greeted pwl and introduced himself as their father's friend, that on sighting 1st defendant behind Dili, pwl attempted to slam his door but Dili used his foot to stop the door from slamming that pwl rather than return Dili's greeting attacked Dili and both of them went into a physical tussle as pwl is a martial arts expert. Dw1 further testified that when the fight broke out between Dili and pwl, she ran to where the car was parked and observed that pwl tore Dili's airforce uniform and ran away, that
Dili and his driver ran after pwl, got hold of him and both pwl, 1st defendant and Dili drove to Akinpelu Police Station, that at the entrance of the Police Station they met the 3rd defendant and they all went into the police station where Dili reported the incident to the police, that after reporting at the police station, Dili took pwl, dw1 and third defendant to the airforce base and settled the feud between parties, that after settling the dispute between them, they all embraced each other. That the following day being 20th June, 2007 she was arrested by the police. 1st defendant further testified that the cause of the problem between the siblings was because pwl and pw2 were collecting rents of their fathers property without remitting same to their father who at the time was living with 1st defendant due to the fact that their father ( now deceased) was blind. Under cross-examination when asked why dw1 did not report pwl and pw2 at Panti rather than invite airforce police to settle the dispute bearing in mind that both pwl and pw2 had a pending matter at Panti, 1st defendant replied that she did not want pwl and pw2 locked up, moreover she never invited Dili but that Dili was their father-s friend. When asked to clarify the portion of her statement which reads 'when these boys started again, we now invite M.C Dili to advise with the consent of the old man" dwi replied that it was their father that invited M.C.Diii. When further asked under cross-examination the rationale behind M.C.Dili driving pwl, 3rd defendant and 1st defendant from the police station to airforce base when Dili could have reported the matter at the police station, 1st defendant replied that Dili took them to the airforce base to settle disputes. When further asked if it sounded logical to settle disputes at the airforce base, 1st Defendant insisted that they had merely followed Dili to the airforce base to settle the dispute between them on the instruction of their faster. There was no re-examination.
2nd defendant testified that pwl, pw2 and the three defendants are siblings of the same parents. That on 18th June, 2007 she received a call from her father that he had found a responsible man to settle the raging feud between the siblings that in view of this her father had requested that she meet with them at Akinpelu the following day. That the following day after taking her children to school she called the 1st defendant who informed her not to bother coming again for the proposed meeting, that in view of this, she did not go nor was she anywhere near the scene of purported crime. Under cross-examination, 2nd defendant stated that she actually welcomed the idea of settlement when their father brought up the idea but never conspired with anyone to kill her brothers. There was no re-examination.
Learned counsel to the defendant thereafter called its last witness 3rd defendant (dw3) who testified that pwl, pw2 and all three defendants are siblings, that on 18th June, their father had called 1st defendant to inform the 3 defendants that he had organized a meeting between the 3 defendants and their brothers (pwl and pw2) and a certain Dili, a Naval man to settle the long running feud between the siblings. That on 19th June, 2007 she went to her father's house at Akinpelu from where she called 1st defendant who informed her that she was heading to the house of pwl and instructed her to wait for them at Akinpelu where pw2 stays. I hat 1st defendant arrived about 2 minutes later; that pwl, 1st defendant and the Dili arrived in a two door car and requested her to get into the car, that she got into the car ( a two door car) where they all drove to the police station. That at the police station, the M.C.Dili lodged a complaint of assault against pwl but the police at Akinpelu rejected the case saying they were tired of Incessant reports against pwl and pw2. That she did not witness where pwl assaulted Dili but after Dili lodged a complaint against pwl at Akinpelu police station where 3rd defendant met them, that 3rd defendant got into Dili’s car and drove off with pwl, 1st defendant and herself to the airforce base where Dili settled the rift between the siblings and that they all apologized, embraced and hugged each other. Under cross-examination, 3rd defendant admitted that while they were driving to the airforce base, pwl was struggling to grasp the steering wheel from the driver who was driving the car conveying them to the airforce base, that the said airforce man named Dili then handcuffed pwl to the chair of the car after which they were all driven to the airforce base in Shasha, that pwl was not aware that he was being driven to airforce base in Shasha. Upon further cross-examination, 3rd defendant denied! informing the court that pwl was in handcuffs while in the vehicle. Upon further cross-examination, 3rd defendant admitted that pwl was in handcuffs while they were being conveyed to the airforce base, that at Shasha airforce base Dili counseled all of them at a roundtable discussion, reconciled them and thereafter they all embraced and hugged each other after which they ail left together. That under no circumstances was pwl detained at the airforce base. When asked to expantiate on her statement that "we called the intervention of airforce men….” 3rd defendant explained that by the word 'we' she meant her daddy and the three defendant's called the intention of the airforce men. There was no re-examination. Learned counsel to the defendant thereafter filed his written address with a plethora of authorities which I have considered in my judgment. I have further adopted the issue for determination raised by Learned counsel to the defendant in his written address
1. Whether the prosecution has proved all the essential elements of me offences as charged beyond any reasonable doubt.
In a case of kidnapping contrary to S.362(2) criminal code prosecution must prove the following;
1. That defendants unlawfully imprisoned pwl within Nigeria in such a manner as to prevent him from applying to court for his release
2. In such a manner as to prevent him from discovering to any other person the place where he is imprisoned .
3. In such a manner as to prevent any person entitled to have access to him from discovering the place where he is imprisoned.
From the prosecutions case, an airforce man named M.C.Dili had gone to the house of pwl with the three defendants, that pwl hid pw2 behind the door and pw2 witnessed all that happened. That the airforce men led by M.C.Dili had broken the door to the apartment of PW1, gained entrance into the apartment of pwl and all the 3 defendants and Dili had beaten him up, hand cuffed pwl and driven him away in a Toyota starlet car to their father's house at Akinpelu. Pw2 on the other hand testified that from where he was standing he only saw 1st defendant come in through the door of pwl with M.C.Dili while the 2nd and 3rd defendants were outside waiting by the car. when asked under cross-examination to describe the role played by 1st defendant, Pw2 replied that ''……….1st defendant did not play any role, it was Laide that came in and she did not do anything....". From evidence before the court it is obvious that,!51 defendant, 2nd defendant and 3rd " defendant did not participate in beating up pwl while in his apartment. From the prosecution's case, 2nd defendant joined hands with the other defendants in beating up pwl at the airforce base, in her defence, 2nd defendant testified that she never went to the airforce base with her sisters neither did she go to the house of pwl that rather she had taken her children to school, called 1st defendant to enquire where to meet up with her and 1st defendant had informed her not to bother coming again. Prosecution did not discredit testimony of dw2 which makes testimony of 2"° defendant unchallenged regarding her not being at the airforce base. Prosecution's insistence that 2nd defendant's testimony is inconsistence with her statement as she omitted to testify that she had gone to visit her father as contained in her statement goes to no issue as contradiction in the evidence of a witness should not be confused with omission. That 2nd defendant omitted to testify word for word what she wrote in her statement cannot be said to be injurious to her case as prosecution has not proved that the omitted part of her statement is an essential ingredient in proving the charge. From the evidence before the court, one thing is clear, that 1st defendant went to the house of pwl with an airforce man named M.C.Dili, that there was a scuffle between M.C/Dili and pwl before they gained entrance into the apartment of pw1, that pwl, M.C. Dili and 1st defendant had all driven to Akinpelu where they picked 3rd defendant before going to Shasha airforce base where pwl was allegedly maltreated. The question before the court is whether pwl went willingly to the airforce or was forced, kidnapped or falsely imprisoned by the 1st defendant, 2nd defendant and 3rd defendant. In support of its case, prosecution tendered three photographs otherwise known as EXHIBIT M3a, M3b and M3c showing bruises and marks all over the body of pwl, this court will not be able to evaluate exhibits M4, M5, M6a and M6b as they all border on the medical report, treatment and drugs received by pwl as prosecution failed to produce the doctor as a witness, although it shows that pwl visited the hospital for treatment. 1st and 3rd defendant also corroborated pwl's testimony that they followed M.C.Dili to the airforce base from Akinpelu police station with pwl in the same car. In support of prosecution's case/ 3rd defendant under cross-examination testified that pwl was handcuffed to the seat of the car while going to the airforce base andthat pwl was in fact struggling to take control of the steering wheel of the car conveying them to the airforce base. Police failed to arraign the said M.C.Diii as it is clear to the court that the charge of kidnap/unlawful imprisonment contrary to S.364(2) criminal code has not been established against the 3 defendants. From evidence before the court, it was M.C.Dili who beat up pwl, it was M.C.Dili who overpowered pwl, handcuffed him to the seat of the car and drove him to airforce base against the wish of pwl and thereby prevented him from having access to any person at the said time as the three defendants obviously cannot overpower pwl bearing in mind that pwl is well skilled in martial arts. I therefore hold that prosecution has not been able to establish the elements of kidnapping against the three defendants and I therefore find the 1st, 2nd and 3rd defendants not guilty of the charge of kidnapping contrary to S. 364 Criminal Code .
On the charge of Assault contrary to S.355 Criminal Code, prosecution must establish that the 3 defendants were responsible In law and in fact for the injury sustained by pwl with horsewhip and handcuffs, the court must be satisfied that the-cause of the injury on pwl was a direct action of the 3 defendants. From the evidence before the court, M.C.Dili had beaten up pwl in the presence of 1st and 3rd defendant M.C.Dili had also handcuffed pwl in the presence of 1st and 3rd defendant. Pw2 had stated in his evidence in chief that M.C. Dili had come to pwl's apartment with the 1st defendant and that M.C. Dili had beaten up pwl while 1" defendant did nothing but merely stood there gazing, 3rd defendant in support of prosecutions case also stated that herself, 1st defendant and-M.C. Dili had taken pwl to the airforce base with pwl handcuffed to the seat of the car by M.C.Dili and that pw1was in tact struggling to take control of the steering wheel. As earlier stated the said M.C.Dili was not arraigned before this honourable court and from the above evidence, the 1st, 2nd and third defendant never assaulted pwl with horsewhip neither did they assault pw1 by handcuffing pwl. I therefore hold that prosecution has failed to prove mat the 3 defendants assaulted pwl and I hereby find the three defendants NOT GUILTY to the charge of assault contrary to S. 355 Criminal Code.
On the charge of conspiracy contrary to S.516 criminal code under the common law, conspiracy is described as an agreement do an unlawful act or a lawful act by an unlawful means
NWOSU VS STATE 15 (NWLR) PRT 897 Pg 466 @ 486 para.D to E
It is trite law that for an offence of conspiracy to be established, there must exist a common criminal design or agreement by two or more persons to do or omit to do an act. To sustain a conviction of conspiracy, prosecution must be able to establish the following requirements:
1. There must be two or more persons.
2. They must form a common intention.
3. The common intention must be towards prosecuting an unlawful purpose in conjunction with one another.
4. An offence must be committed in the process.
5. The offence must be of such nature that it's commission was a probable consequence of the prosecution of such purpose. See
AKINKUMI & ORS VS THE STATE (1987) 1 NSCC 305 (5)310
Clearly, there was an agreement between the 1st defendant, 3rd defendant and M.C.Dili to take pwl to the airforce base away from the prying eyes of the public. The question is whether "the criminal design alleged ( kidnap and assault) is common to all the suspects"? NWOSU VS STATE (SUPRA) pages 486 paragraph F-H; it is then that conspiracy is established. From circumstantial evidence before the court, 1st and 3rd defendant colluded with the said M.C Dili to perpetrate'the offence of kidnapping and assault. It was 1st defendant who pointed out the house of pwl to M.C.Dili, 1st defendant was present in pwl apartment when M.C.Dili beat up pwl, after beating up PW1, M.C.Dili with 1st defendant took pwl in a Toyota starlet car to Akinpelu where they met and picked up 3rd defendant. Testimony of pw3 that the said M.C.Dili had harassed and intimidated the police at Akinpelu Police station before eventually driving off with pwl was not contradicted nor discredited under cross-examination. 3rd Defendant on sighting pwl saw that pwl had been beaten up but nevertheless entered into the Toyota starlet car and drove away with 1st defendant, and defendant M.C.Dili and pwl while pwl was handcuffed to the seat of the car. It would therefore sound ridiculous that with the condition and manner in which pwl was conveyed to the airforce base with handcuffs, that they had actually gone to the airforce base to have a round table discussion which at the end of discussion they all hugged and embraced each other. A roundtable discussion connotes a consensual discussion amongst the parties involved and not a discussion with a foundation of beating and being handcuffs. Moreover, in support of the prosecution's case,
1st defendant in her statement wrote in her handwriting that "..............when this boys started again, we now invite M.C Dili to advise with the consent of the old man........" :
2"° defendant in her statement wrote that ".........when tasked them why they took them to the airforce they said it was because they taught the man as (b) made it and they want to make him (they) to give them consent........";
3rd defendant in her statement wrote “...........I was aware that he was beaten but I was not in support of the beating but I could not stop him, if we knew he was going to beat him, we would not report to him, we reported to the airforce police because they threatened that the Akinpelu Police Station are their neighbours and nothing can happen if we report them because they are their friends..."
Pwl also testified that ".........I was handcuffed from my house, they carried me to Akinpelu police station..."
Although the offence of kidnapping has not been established against the 3 defendants, it is obvious that the 1st and 3rd defendants conspired with M.C.Dili to kidnap and assault pwl. Conviction for conspiracy does not become inappropriate simply because the substantive offence has not been successfully proved. It is a known principle of law that conspiracy to commit an offence is a separate and distinct offence and it is independent of the actual commission of the offence to which the conspiracy is related. The offence of conspiracy may be fully committed even though the substantive offence may be abandoned or aborted or may have become impossible to commit.
BALOGUN VSJUK)F OGUN STATE (2002) 2SC (pt II) Pg.96 LAWSON VS THE STATE (1975) 4 SC 115
In a criminal case, the standard of proof is proof beyond reasonable doubt. A court in reaching its decision must consider aspects which are favourable and aspects which are not favourable in reaching its decision. It is the duty of the court to consider the totality of evidence before the court. It is after such duty that the court then comes to a conclusion as to whether or not the case was established beyond reasonable doubt. See ALONGE VS IGP (1959) NSCC 169 @ 170
From the above, no element of the 3 count charge has been proved against the 2nd defendant and I therefore discharge and acquit the 2nd defendant accordingly.
It is obvious that 1st and 3rd defendant invited M.C.Dili, conspired with M.C.Diii to kidnap and assault pwl as prosecution has satisfied the elements of conspiracy against the 1st and 3rd defendants and I therefore hold that the charge of conspiracy to kidnap and assault pw1 contrary to S.516 of the Criminal Code has been made out against the 1st and 3rd defendant, and I therefore find the 1st and 3rd defendants GUILTY of Conspiracy as proffered in Count 1.