Mohammed V. A-g, Fed (2020)

LAWGLOBAL HUB Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

The Appellant and one Eunice Owoyele were arraigned before the Federal High Court, Ikeja Judicial Division on 1st February, 2011 on a 3-count charge as follows:

Count 1:

That you Eunice Owoyele (f) 40 years of No. 40 Dagbolu Street; Idiroko, Lagos and Mariam Mohammed a.k.a. Mama Blessing (f) 60 years of No. 288 Ogolonto Area, Ikorodu, Lagos on or about the 31st day of August, 2010 at No. 40 Dagbolu Street, Idiroko, Lagos within the jurisdiction of the Federal High Court procured Mary Joseph (f) 18 years of No. 5 Sunmola Street, Mende, Maryland for prostitution and thereby committed an offence contrary to Section 15 (a) of the Trafficking in Persons Prohibition Law Enforcement and Administration Act, 2003 as amended and punishable under the same Section of the Act.

Count 2

the Federal High Court organized foreign travel for Mary Joseph (f) 18 years of age of No. 5 Sunmola Street, Mende, Maryland to Libya for prostitution and thereby committed an offence contrary to Section 16 of the Trafficking in Persons Prohibition Law Enforcement and Administration Act, 2003 as amended and punishable under the same Section of the Act.

Count 3

That you Eunice Owoyele (f) 40 years of No. 40 Dagbolu Street, Idiroko, Lagos and Mariam Mohammed a.k.a. Mama Blessing (f) 60 years of No. 288 Ogolonto Area, Ikorodu, Lagos on or about the 31st day of August, 2010 at No. 40 Dagbolu Street, Idiroko, Lagos within the jurisdiction of the Federal High Court deceitfully induced Mary Joseph (f) 18 years of No. 5 Sunmola Street, Mende, Maryland to go from Lagos to Libya and thereby committed an offence contrary to Section 19 (b) of the Trafficking in Persons Prohibition Law Enforcement and Administration Act, 2003 as amended and punishable under the same Section of the Act.

The appellant was the 2nd accused at the trial. Both accused persons pleaded not guilty to each of the three counts. At the conclusion of the trial, in a considered judgment

delivered on 5/10/2011, the appellant was found guilty on all the counts, while her co-accused was found guilty on counts 1 and 3 only. On count 1 the appellant was sentenced to 14 years imprisonment without an option of fine. On count 2, she was sentenced to 10 years imprisonment without an option of fine and on count 3 she was sentenced to 3 years imprisonment. The sentences are to run concurrently.

She was dissatisfied with her conviction and sentence and appealed to the Court below. The appeal was dismissed on 18th July, 2014, hence the further appeal to this Court vide a notice of appeal filed on 10/12/2014 containing 5 grounds of appeal.

At the hearing of the appeal on 5/3/2020, PHILIP NDUBUISI UMEH ESQ. adopted and relied on the Amended Appellant’s brief deemed filed on 24/10/2019 and her Reply brief filed on 31/10/2019 in urging the Court to allow the appeal. MOHAMMED SAID DIRI ESQ., Director, Legal Services, Federal Ministry of Justice, adopted and relied on the Respondent’s brief deemed filed on 24/10/2019 in urging the Court to dismiss the appeal.

The appellant formulated the following issues for the determination of the

appeal:

Whether, having regard to the totality of evidence adduced, the prosecution had sufficiently proved the ingredients of the offence charged against the appellant beyond reasonable doubt as required by law as to warrant the conviction of the appellant by the trial Court and affirmation of same by the Court below. (Ground 1)
Whether the Court below was right in affirming the decision of the trial Court when the decision was not supported by enough evidence, but filled with inconsistencies and contradictions. (Ground 2)
Whether the Court below was right in affirming the decision of the trial Court based on the hearsay evidence of PW1 and PW2, which said evidence were inadmissible and unsustainable in law to ground the conviction of the appellant. (Ground 3)
Whether, considering the circumstances of the case, the learned Justices of the Court below were justified in affirming the sentence passed on the appellant. (Ground 4)

No issue was formulated from Ground 5 of the notice of appeal. It is deemed abandoned.

Learned counsel for the respondent adopted the issues formulated by the appellant. In doing so, he argued

Issues 1 and 2 together. I adopt the issues formulated by the appellant for the resolution of this appeal. I am of the view that Issues 1, 2 and 3 can be condensed into a single issue, that is:

Whether the prosecution established its case against the appellant beyond reasonable doubt.

Issue 4 will be treated as Issue 2.

Issue 1

Whether the prosecution established its case against the appellant beyond reasonable doubt.

Learned counsel for the appellant submitted that in order to discharge the burden of proving its case beyond reasonable doubt, the prosecution must establish the following:

(a) That the victim was procured for the purposes of prostitution;

(b) That the accused person played a part in the procurement of the victim; and

He submitted that in order to secure a conviction under the relevant provisions of the Trafficking in Persons (Prohibition) Law Enforcement and Administration Act, 2003, as amended (hereinafter referred to as the Trafficking Act), the prosecution must prove both the actus reus and the mens rea of the offence. He referred to:

State Vs Isiaka (2013) LPELR-20521 (SC) and Michael Alor Vs The State (1994) 4 SCNJ 170.

He contended that there were inconsistencies in the evidence of the prosecution witnesses, PW1 and PW2 as to when PW1 became aware that her daughter, PW2 had been procured for prostitution. That in her evidence-in-chief, PW1 stated that her daughter called her from Libya crying that she and her aunt had been forced into prostitution, while under cross-examination she stated that it was the Chairman of the Oduduwa Association in Libya who called and gave her the information. Learned counsel also submitted that there was no direct evidence establishing that the appellant had the intention of committing the offence. He argued that the appellant’s evidence-in-chief and evidence under cross-examination, as shown at pages 94 – 96 of the record, raised serious doubts about her involvement in the crime, which ought to have been resolved in her favour. He referred to Section 24 of the Criminal Code Act, Laws of the Federation of Nigeria, Cap. C38, 2004 and the case of Shekete Vs N.A.F. (2000) 16 WRN 56 @ 59. He submitted that the prosecution failed to prove that the appellant

had any connection with the various people PW2 said she met during her stay at Tripoli and that there was also no medical evidence from either Tripoli or Nigeria to prove that she was raped, as she claimed.

Learned counsel submitted that although PW1 and PW2 consistently referred to one Cecilia as having travelled to Libya with PW2, she was never called to testify, notwithstanding the fact that they both testified that she had returned to Nigeria. He submitted that the failure of the prosecution to call this vital witness to testify was fatal to their case. He urged the Court to invoke Section 167 (d) of the Evidence Act, 2011 against the respondent and to hold that the evidence was withheld because it would have been unfavourable to their case. He referred to: Chukwuma Vs FRN (2011) 5 SC (Pt. II) 84; Oguonzee Vs The State (1998) 4 SC 110.

He conceded that it is not the usual practice of this Court to interfere with concurrent findings of fact by the two lower Courts. However, relying on: Musa Vs The State (2009) 15 NWLR (Pt. 1165) 467 @ 479; Egunjobi Vs FRN (2013) 3 NWLR (Pt. 1342) 534 and Kabir Almu Vs The State (2009) 10 NWLR (Pt. 1148) 31 @

39, he submitted that the concurrent findings in this case are perverse and therefore this is a proper case in which this Court ought to interfere.

Learned counsel submitted that there were material contradictions between the evidence of PW1 and PW2 as to when PW2 got to know that she was being taken out of the country, which ought to have raised some doubt in the mind of the Court. He argued that the two lower Courts were wrong to have regarded them as minor inconsistencies.

He submitted further that the evidence of PW1 and PW2 amounts to hearsay and is therefore inadmissible.

He referred to Section 38 of the Evidence Act and the cases of: Ojukwu Vs Yar’adua (2009) 12 NWLR (Pt. 1154) 75 and Subramaniam Vs Public Prosecutor (1956) 1 WLR 965 @ 969. He reproduced portions of their testimony at pages 17 – 18, 71 – 72, 76 – 77 and 83 of the record, in support of his assertion and contended that their evidence is not in respect of anything said to them directly or perceived by their senses. He submitted that the persons mentioned by PW1 and PW2 ought to have been called as witnesses. He submitted that having regard to the identified

inadequacies in the prosecution’s case, the lower Court was wrong to have affirmed the judgment of the trial Court convicting and sentencing the appellant.

In response, learned counsel for the respondent submitted that the burden of proving its case beyond reasonable doubt does not mean the case must be proved beyond the shadow of a doubt. He referred to: Bello Vs The State (2007) 10 NWLR (Pt. 1043) 564 @ 566; Nwachukwu Vs The State (1985) 3 NWLR (Pt. 11) 218. He submitted that the prosecution may rely on one or more of the following methods to discharge the onus of proof:

i. Confessional statement of the accused;

ii. Circumstantial evidence; and/or

iii. Direct evidence of eyewitnesses to the commission of the offence.

He referred to: Ugochukwu Ngorka Vs A.G. Imo State (2014) LPELR-22532 (CA) @ 46-47 G-A.

He noted that PW1 and PW2 gave direct evidence of what they saw and heard and that their evidence corroborated each other. Regarding the appellant’s contention that the evidence of PW1 and PW2 was contradictory, he cited the case of: Wachukwu Vs Owunwanne (2011) 14 NWLR (Pt. 1266) 1; (2011) LPELR-3466 (SC) @ 27 C – D, where it

was held that a piece of evidence is said to contradict another when it affirms the opposite of what the evidence has stated and not where there are minor discrepancies. It was also held in that case that two pieces of evidence contradict another when they are by themselves inconsistent. He submitted that the contradictions alleged by the appellant do not go to the root of the charges against her and that in any event, it is not every inconsistency in the prosecution’s case that would lead to the acquittal of the accused. He referred to: Ikemson Vs The State (1989) 3 NWLR (Pt. 110) 455 @ 474 G — H; Theophilus Vs The State (1996) 1 NWLR (Pt. 423) 139 A – B; Okonji Vs The State (1987) 1 NWLR (Pt. 22) 659. He submitted further that this Court would not ordinarily interfere with concurrent findings of fact unless there is a miscarriage of justice or the decision is perverse or violates some principles of law or procedure. He relied on: Overseas Construction Ltd. Vs Creek Enterprises (Nig.) Ltd. (1985) 3 NWLR (Pt. 13) 407; (1985) 12 SC 157.

On the alleged failure of the prosecution to call as witnesses all the people named by PW1 and PW2, he submitted

that the prosecution is not bound to call all witnesses. Its duty is to call only the number of witnesses required to establish its case. He referred to: Nwaeze Vs The State (1996) 2 NWLR (Pt. 425) 4 @ 15; Asariyu Vs The State (1987) 4 NWLR (Pt. 67) 709; Ogbodu Vs The State (1987) 2 NWLR (Pt. 54) 20.

He rejected the appellant’s contention that the evidence of PW1 and PW2 is hearsay and reiterated his contention that both witnesses gave direct evidence of facts within their knowledge, which established all the ingredients of the offences with which the appellant was charged. He reproduced the evidence of PW2 at page 183 of the record and submitted that it is evidence directly from the victim of the crime. He submitted that for any evidence to have probative value, it must be relevant to the issue being determined in the case and it should also be capable of being tested in Court under oath, particularly through cross-examination. He referred to Chabasaya Vs Anwasi (2010) 10 NWLR (Pt. 1201) 163. He submitted that there was sufficient uncontradicted evidence before the trial Court which established the fact that the accused persons procured the PW2 and her

aunt for prostitution, that they organised their foreign travel to Libya and deceived them to travel to Libya for prostitution. He referred to the testimony of PW2 at pages 185 and 186 of the record. He submitted that the appellant also made a confessional statement, which was admitted in evidence without objection and that the statement corroborated the evidence of PW1 and PW2.

In his reply brief, learned counsel for the appellant submitted that hearsay evidence is inadmissible and therefore whether or not its admission has occasioned a miscarriage of justice is irrelevant. He referred to: Ikaria Vs The State (2012) LPELR-15533 (SC); Pharmacist Board of Nigeria Vs Adegbesote (1986) 5 NWLR (Pt. 44) 707. He maintained that there are contradictions in the evidence of the prosecution witnesses and that the reliance of the two lower Courts on their evidence has occasioned a miscarriage of justice. He submitted that the facts of this case present deserving circumstances for the interference of this Court with the concurrent findings of the two lower Courts.

The settled position of the law is that if the commission of a crime by a party to any

proceeding is directly in issue, it must be proved beyond reasonable doubt. In other words, the burden is on the prosecution to establish the guilt of the accused beyond reasonable doubt. See Section 135 of the Evidence Act, 2011. Proof beyond reasonable doubt has been held to mean proof to a moral certainty, such proof as satisfies the judgment and conscience of a judge as a reasonable man and applying his reason to the evidence before him that the crime charged was committed by the accused person and therefore satisfies him, leaving no other reasonable conclusion. See Dairo Vs The State (2018) 7 NWLR (Pt. 1619) 399; R Vs Lawrence (1932) 11 MLR 6 @ 7. The burden remains on the prosecution throughout the proceedings and does not shift. See: Esangbedo Vs The State (1989) 4 NWLR (Pt. 113) 57; Udo Vs The State (2006) 15 NWLR (Pt. 1001) 179; Michael Vs The State (2008) 13 NWLR (Pt. 1104) 381. However, as rightly submitted by learned counsel for the respondent, proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. See: Oseni Vs The State (2012) 5 NWLR (Pt. 1239) 351 @ 388 F – G; Niran Azeez Lawal Vs The State (2016) 14 NWLR (Pt. 1531) 69;

Bakare Vs The State (1987) 1 NWLR (Pt. 52) 579.

The relevant Sections of the Trafficking Act for the purposes of this appeal are Sections 15 (a), 16 and 19 (b), which provide as follows:

“15. Any person who –

(a) procures, uses or offers any person for prostitution, or the production of pornography, or for pornographic performance, commits an offence and is liable on conviction to imprisonment for fourteen years without an option of fine.

Any person who organises or promotes foreign travels which promotes prostitution of any person or encourages such activity commits an offence and is liable on conviction to imprisonment for ten years without an option of fine.
(1) Any person who –

(b) by force compels or by any deceitful means – induces any person to go from any place, commits and offence and is liable on conviction, to imprisonment for ten years or to a fine not exceeding N200,000.00 or both.”

In order to secure a conviction, the prosecution was required to prove the following facts beyond reasonable doubt:

i. That the accused person participated in the procurement of the victim for the purpose of

prostitution;

ii. That the accused person organised the foreign travel of the victim for the said purpose; and

iii. That there was deceitful inducement of the victim by the accused.

The definition of some of the terms used in the statute will assist in the resolution of these issues.

“Procure” means “to obtain (a person) for the purpose of prostitution. See: Dictionary.com

“Induce” means “to bring on or about, to affect, cause, to influence an actor’s course of conduct, lead by persuasion or reasoning, incite by motives, prevail upon.

“inducement” means “to cause a party to choose one course of conduct rather than another…”

“Deceit” means “a fraudulent and deceptive misrepresentation … used by one or more persons to deceive and trick another, who is ignorant of the true facts, to the prejudice and damage of the party imposed upon …” See: Black’s Law Dictionary, 9th Edition.

The evidence of PW1, Lydia Eniola, is at pages 70 – 73 of the record. She is the mother of PW2, Mary Joseph, the victim of the offence. She testified inter alia as follows:

“I know the 1st accused very well. The 2nd

accused [appellant herein] used to come to the 1st accused. The 1st accused is the Pastor of the church I attend. My younger sisters needed a job. … I went to Osun State to visit my parents and family. When I got to Osun State, I told the 1st accused that my younger sister is looking for a job. Then the 1st accused told me that her friend needs two sales girls. Then I told [her] my sisters were in Osun State. When I told my two sisters they asked for where. I said they should go and meet the 1st accused. I asked the 1st accused what was the job. She said it was oil she was selling. The two girls are related to me. One is my daughter called Mary Joseph and the second is my junior sister by name Cecelia Phillips. … When I went to Osun State, I came to the 1st accused to ask her where is the place she sent my daughter and sister to. She told me she has sent them abroad. That her friend used to market red oil to Libya and abroad. That my daughter and sister had gone abroad to help her.

… A month after my daughter called me on phone from Libya. They called me one Monday and a Friday saying that the job they push them to was prostitution. They told me to

ask them to return them back to Nigeria.

I went to meet the 1st accused and told her that the job they gave my daughter and sister was prostitution. Then someone called me from Libya saying he is Oduduwa Association Chairman and I should go and tell the 1st accused to refund the money she collected on the two so that they can release them.

… When I got to the house of the 1st accused, the man in Libya called me so I allowed him to speak with the 1st accused… the 1st accused said she had sent money to the man in Libya so that they can return my daughter and sister. The 1st accused called out the 2nd accused. Then the 1st accused introduced me as the mother of the two girls. Then the 1st accused told me that it was the daughter of the 2nd accused that carried them to Libya. The 2nd accused then exclaimed that she did not know the girls were virgins. That it is prostitution they go to do there. That I should pay N500,000.00 per head to return them. The two of them then started petting me that nothing will happen to the girls. That I should go home and rest. …the 1st accused promised the girls will be brought back within one week. After two weeks I

did not see them, I became worried. …So we went to NAPTIP to report. On our report, Mary my daughter, was sent back to me with the help of the Oduduwa Association. … The 2nd girl named Cecelia came back to Nigeria the day before yesterday. That is all.”

Under cross-examination, she stated, inter alia:

“They [Mary and Cecelia] did not speak to me again before they travelled out of Nigeria. I did not know when they travelled out of Nigeria. My daughter is 18 years old. Cecelia is going to 20 years. When they got to Libya I did not speak to them. I spoke to them in September for the 1st time. … The Chairman of Oduduwa Association that called me is a man. It was my daughter that gave him my telephone number. It was when the Chairman of Oduduwa called me that I knew my girls were sold into prostitution.”

PW2’s testimony is at pages 74 – 83 of the record. She stated, inter alia:

“On coming to Lagos, I and my sister went to meet the 1st accused. On getting to the 1st accused, she called the 2nd accused. The 2nd accused came with her daughter, Blessing and one man called Ibrahim. The 2nd accused told us that her daughter stays outside Nigeria and that

she used to export goods from Nigeria, sell them there and return. Then the 2nd accused told us that we will go with her daughter to sell abroad before coming back to settle to selling the goods in Nigeria.

My aunt, Cecelia then asked if we were to travel abroad without travelling documents. Then they said it will not be a problem. Then the 2nd accused brought a Bible and an anointing oil for us to swear that we will not misbehave and that whatever they tell us to do we will do. So, we swore to the Bible in the house of the 1st accused but it was the 2nd accused who administered the oath. The 2nd accused took us to her house at Ogoloto in Ikorodu. We slept overnight in the house of the 2nd accused. The following morning the 2nd accused told us we will travel with the man called Ibrahim and that Blessing, the daughter, will join us on the second day. We went to Ibadan on 10/8/2010. At Ibadan, Ibrahim took three girls through one woman to join us.”

Thereafter, she narrated the ordeal of travelling by road from Nigeria to Libya. She continued at pages 76 – 79 of the record:

“The journey was so horrible. At Durugu, they call the patrons

Bourgers. At the place, the said Bourgers were asking us the new comers how we got into the route and we were asked individually. I and my aunt told them we were told that we were hired as sales girls and not prostitution. I told them I am not for prostitution that I am a virgin. They said they will disvirgin me to do the work. Then I and my aunt went to meet Ibrahim that why did he not tell us that it was prostitution. He said he could not tell us the truth because already they had paid money to 1st and 2nd accused and that if he told us the truth, his life and that of his wife would be in danger.…

On arriving at Ganshun, we were told to wait for people to come and collect their girls. The man that came to collect us brought Jalabiya long gown for us. His name is Ade. When Ade came he was told that a virgin is among the girls. He asked who the person was and I said I was. …It was Gani that owned us. So, Ade called him and said one of the girls brought for him is a virgin. Gani said there is nothing he can do about it that they should disvirgin me because he had paid money to the 1st and 2nd accused. … Then in the night of 2nd September

Ade came in the night and raped me.

… Thereafter Ade took me to Tripoli and later to Zwara where the person that owns me was. When I got there, they told me that I was going to start the prostitution that date. I begged but they refused. …

They forced me to have sex with an Arab man that day and it was hell. They do not allow you to see the money. They pay money to Gani’s wife. …

One night they gave me to a man for overnight. I begged the man to allow me use his phone. I was able to call my mother to report to her all I was going through. I told the madam thereafter that I cannot do the work again. … She threatened me … They took me to a town in Libya called Mistatata … I was crying everyday so Gani now called the accused in Nigeria that instead of N450,000.00 they should pay N80,000.00 into her Nigerian account and gave them a deadline.”

At page 80 of the record, she continued:

“It was Oduduwa group now that took me up and called the two accused persons in Nigeria. They put the phone on speaker phone so I heard all the negotiation for me to be returned. Oduduwa people then told Gani and Ade to bring the money to transport me

back to Nigeria and they later did. So, on 3rd November, 2010, I returned to Nigeria. My mother did not know we were going to Libya. I want the Court to do justice in this matter because these two accused have destroyed my life and wasted other peoples’ lives.”

Her testimony remained unshaken under cross-examination.

The appellant, in her testimony, denied knowing PW2 and denied any knowledge of the offence. She stated that she knew the 1st accused (DW1) as a pastor. She stated that she received a call from her asking her for a loan to assist in paying for the return of the daughter of a church member who had been taken to Libya and was being mistreated. She stated that she went to DW1’s house, where she met PW1, the victim’s mother. She said she mentioned to PW1 that her daughter, Blessing, was in Tripoli doing hairdressing and that she usually purchased weave-on from Nigeria to sell in Tripoli. She said she was reluctant to assist but DW1 pleaded with her to lend PW1 the sum of N30,000.00, which would be used to balance the N50,000.00 she (DW1) had. She stated that after three days, she lent her the money and it was sent to Libya. Under

cross-examination, she maintained that the money was a loan and that she went with her daughter, Blessing, to the home of the 1st accused for prayers.

With regard to proof of procurement, the evidence before the trial Court, which was uncontroverted and which the Court believed, was that PW1 was told by the 1st accused person that her daughter and niece were to be employed as sales girls to assist her in selling red oil.

It was later, when she asked the 1st accused where she sent them to, that the 1st accused informed her that they had been sent abroad to assist her friend to market the red oil in Libya.

PW2, in her testimony, stated that after her mother (PW1) handed them over to the 1st accused in Osun State, the 1st accused took them to Lagos where she called the appellant who came along with her daughter, Blessing and one Ibrahim. She narrated how the appellant informed them that Blessing exports goods from Nigeria and that they would accompany her abroad to sell some goods and then return to Nigeria to settle down to selling the goods in Nigeria. According to her testimony, the appellant administered an oath on them and informed them that

they would be travelling with Ibrahim while Blessing would join them later.

PW1 stated that when she challenged the 1st accused (DW1), after she discovered what her daughter and niece had been forced to do in Libya, she (DW1) called the appellant in her presence and introduced her (PW1) as the mother of the girls. She stated,

“The 2nd accused then exclaimed that she did not know the girls were virgins. That it is prostitution they go to do there. That I should pay N500,000.00 per head to return them. The two of them started petting me that nothing will happen to the girls.”

The interaction PW1 and PW2 had with the appellant clearly showed that she was fully involved in the procurement of PW2 and her aunt, Cecelia, and that it was for the purpose of prostitution. They were both given the impression that the girls were to be employed as sales girls. They were also not informed at the outset that they were to be taken out of the country. It was after being handed over to the appellant, that PW2 and her aunt were informed that they would be travelling. Even at that stage, they were told they were going to assist the appellant’s daughter in her

trade of buying and selling. This was clearly a fraudulent misrepresentation to trick them into thinking that they were going for a genuine job of buying and selling. The appellant’s exclamation in PW1’s presence that she did not know that the girls were virgins because prostitution is what girls are taken to Libya for, showed that the appellant was part of the prostitution ring.

PW2 gave a vivid and harrowing account of all that transpired from the moment they left Lagos, throughout the journey by road to Libya and what happened to her in Libya. She narrated how she was raped as a result of which she lost her virginity and was forced into prostitution. She also narrated how she sustained injuries and became ill as a result of the way she was treated and how she was eventually able to call her mother and narrate her experience. She also testified as to how the Oduduwa Association in Libya facilitated her final return to Nigeria.

Another indication of the involvement of the appellant in the commission of the offence is the fact that she was called upon by the 1st accused to contribute money for the girls’ return. Indeed, DW1 corroborated the evidence

of PW1 regarding the amount that was demanded for the return of the girls. As noted earlier, the evidence of PW1 and PW2 remained unshaken throughout.

I shall now address the appellant’s contention that the evidence of PW1 and PW2 was contradictory. As rightly submitted by learned counsel for the respondent, a piece of evidence is said to contradict another where it states or affirms the opposite of that other piece of evidence or where one piece of evidence is inconsistent with another. See: Dagayya Vs The State (2006) LPELR-912 (SC) @ 45 D – E; Ogoala Vs The State (1991) 2 NWLR (Pt. 175) 509: Wachukwu Vs Owunwanne (supra). The alleged contradictions pointed out by learned counsel are as to when PW1 became aware that her daughter had been taken to Libya for prostitution – whether it was when her daughter called her or when she received a call from the chairman of the Oduduwa Association in Libya. The essence of the PW1’s testimony is that at the time she handed over her daughter and niece to the 1st accused, who later handed them over to the appellant, she was not aware that they were being taken out of the country, as she did not speak to them again

until after they were in Libya. PW2 corroborated her evidence by confirming that she was not aware that they were being taken out of the country. In the excerpt of her evidence reproduced earlier in this judgment, she stated that it was when they got to the home of the appellant in Lagos that they were told that they would be travelling, which prompted her aunt to inquire how they would travel without documents. I agree with the Court below that learned counsel for the appellant failed to show which part of the evidence of PW1 contradicted the testimony of PW2 or vice versa. The evidence of the two witnesses is consistent as regards the fact that it was after PW2 and her aunt arrived in Libya that PW1 got to know that they had been taken out of the country. Minor differences in detail, as to whether it was PW2 or the chairman of the Oduduwa Association that first informed PW1 of the situation, constitute minor discrepancies which cannot discredit the evidence of the witnesses.

Learned counsel for the appellant also argued that the evidence of PW1 and PW2 amounts to hearsay.

”Hearsay” is defined in Section 37 of the Evidence Act as follows:

“37. Hearsay means a statement –

(a) oral or written made otherwise than by a witness in a proceeding; or

(b) contained in a book; document or any record whatever, proof of which is not admissible under any provision of this Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it.”

In the locus classicus, Subramaniam Vs Prosecutor (1965) 1 WLR 965, it was held:

“Evidence of a statement made to a witness called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.”

See also: Utteh Vs The State (1992) 2 NWLR (Pt. 223) 287; (1992) LPELR-6239 (SC) @ 11 C -E; Arogundade Vs The State (2009) 6 NWLR (Pt. 1136) 165; FRN Vs Usman (2012) LPELR-7818 (SC) (a) 19 – 20 F – C.

Learned counsel for the appellant reproduced various portions of the evidence of PW1 and PW2 at pages 17 & 18, 71 – 72 and 83 of the record and contended that the

evidence amounts to hearsay. At pages 71 – 72 of the record, PW1 stated that she received a phone call from Libya and that the caller informed her that her daughter had been disvirgined and her sister (niece) had been sold. She also stated that she received a call from the chairman of the Oduduwa Association who advised her to go and see the 1st accused and ask her to refund the money she collected on the two girls. PW1 gave direct evidence of phone calls she received personally regarding her daughter and niece’s condition. It is not hearsay. PW2 testified on her own behalf to the effect that she was raped and lost her virginity in the process. The evidence given by PW2 at pages 17 & 18 of the record is direct evidence of what transpired on the journey to Libya and conversations she had with certain persons on the way. I have reproduced portions of her evidence earlier in the judgment. The lower Court also reproduced portions of her testimony at pages 295 – 297 of the record. I agree entirely with their Lordships that the evidence of the two witnesses is not hearsay and was rightly acted upon by the learned trial Judge.

I also agree with the two lower Courts that the prosecution proved beyond reasonable doubt that the appellant participated in organising the foreign travel of PW1 from Lagos to Libya.

Learned counsel for the appellant has also argued that the prosecution failed to call certain witnesses to testify and that the failure to do so is fatal to its case. He referred particularly to PW1’s niece, Cecelia, who went to Libya with PW2. He also referred to the various people named by PW2 as playing a role in the whole saga. The law is quite settled that in discharging its burden of proving its case beyond reasonable doubt, the prosecution is not bound to call a particular number of witnesses or any specific witnesses. It has the discretion to call only those material witnesses whose evidence would enable it discharge the burden of proof. After all, the evidence of a single witness, if cogent and credible may suffice to prove the case, even in murder charge. See: Shurumo Vs The State (2010) 19 NWLR (Pt. 1228) 73; Ochiba Vs The State (2011) 17 NWLR (Pt. 1277) 663: Ochani Vs The State (2017) 18 NWLR (Pt. 1596) 1; (2017) LPELR-42352 (SC) @ 31 B — F. It is also pertinent to observe that

Section 167 (d) of the Evidence Act, 2011, relied upon by learned counsel, relates to evidence that is withheld. It is not applicable in the circumstances of the instant case where the accused person contends that a particular witness was not called to testify. The accused person is at liberty to call any witness not called by the prosecution that he believes would assist his case. See: Oguonzee Vs The State (supra) @ 229 B – F.

Having carefully perused the record and the findings of the two lower Courts, I am unable to agree with learned counsel for the appellant that Cecelia or any of the persons named by PW2 are material witnesses who ought to have been called to testify in this case. I am of the considered view and I do hold that the evidence of PW1 and PW2 was cogent and credible enough along with the evidence of the investigating officers, PW3 and PW4, to establish the case of the prosecution beyond reasonable doubt.

The learned trial Judge who had the unique opportunity of seeing and hearing the witnesses testify, found them to be credible witnesses. The lower Court appraised the evidence of these two witnesses and agreed with the

findings. I am not persuaded to interfere with the sound reasoning of the two lower Courts. Issue 1 is therefore resolved against the appellant.

Issue 2

Whether, considering the circumstances of the case, the learned Justices of the Court of Appeal were justified in affirming the sentence passed on the appellant?

Learned counsel for the appellant submitted that it is trite law that a trial Judge has a discretion to exercise in passing sentence upon a convict and that an appellate Court has the discretion to interfere with the sentence where it is shown that the learned trial Judge failed to exercise his discretion judicially and judiciously. He referred to: Tsaku Vs The State (1986) 1 NWLR (Pt. 17) 518; Tanko Vs The State (2009) LPELR-3136 (SC). He submitted that the various sections of the Trafficking Act under which the appellant was charged, provide for the maximum sentences to imposed for each offence and that the Court had a discretion to impose less than the maximum sentence provided for. He also submitted that the trial Judge is obliged to state the factors that influenced the sentence imposed. He submitted that although the learned trial

Judge gave reasons for imposing the maximum sentence, he failed to consider some mitigating factors, which ought to have persuaded him to reduce the sentences. He submitted that at the time of pronouncing the sentence, the appellant was 60 years old and a first offender. He argued further that the aim of the law is to reform and not to impose extreme punishment. Relying on the authorities of: Uwakwe Vs The State (1974) LPELR-3447 and Sunday Modupe Vs The State(1988) LPELR-1888 (SC) he urged the Court to temper justice with mercy and to exercise its powers under Section 22 of the Supreme Court Act to reduce the appellant’s sentence.

In response, learned counsel for the respondent submitted that where the law stipulates a mandatory sentence, an allocutus would have no effect. He referred to; The State Vs Babangida John (2013) LPELR-20590 (SC). He submitted that allocutus is not the stage for counsel to adduce evidence. He submitted that it is the duty of counsel to draw the Court’s attention to any mitigating factors that could reduce the sentence before the conclusion of the case. He submitted further that where sentences are mandatory the learned trial

Judge has no discretion to exercise. He submitted that the purpose of sentencing includes:

a. Punishment

b. Deterrence (general and specific)

c. Rehabilitation

d. Denunciation; and

e. Protection of the community.

He submitted while the age of the convict and the fact that he/she is a first offender might serve as mitigating factors, there are also factors that might aggravate the sentence imposed, which include the prevalence and seriousness of the offence, the non-repentant attitude of the offender and the adverse effect on the victim. He referred to the reasons given by the learned trial Judge at page 126 of the record and the affirmation by the lower Court at page 189 of the record and submitted that having regard to the seriousness of the offence of trafficking in persons and the fact that the sentences under Sections 15 (a) and 16 are mandatory, the trial Court only had a discretion to exercise with regard to Section 19 (b) of the Trafficking Act. He submitted that in the absence of manifest injustice, this Court would not interfere with the exercise of discretion, as affirmed by the Court below.

Earlier in this judgment, I reproduced the provisions of Sections 15 (a), 16 and 19 (b) of the Trafficking Act. Any person found guilty under Section 15 (a) of the Act is “liable on conviction to imprisonment for fourteen years without an option of fine”. Any person found guilt under Section 16 of the Act is “liable on conviction to imprisonment for ten years without an option of fine.”

The provisions are clear and unambiguous. The sentences are mandatory. The trial Judge has no discretion to exercise in the matter. The issue of discretion only arises where the law provides for a minimum or maximum sentence or an alternative sentence, in which case the Court has a discretion not to impose less than the minimum and not more than the maximum sentence or to impose the alternative sentence in lieu of or in addition to the custodial sentence. See: Musa Yusuf Vs FRN (2017) 8 NWLR (Pt. 1622) 502; (2017) LPELR-43830 (SC) @ 38 – 40 F – A. Thus, this Court cannot and will not interfere with the sentences imposed by the learned trial Judge on counts 1 and 2 of the charge, as affirmed by the lower Court.

With regard to count 3, Section 19 (b) of the Trafficking Act

provides that a person found guilty of an offence under the sub-Section “is liable upon conviction to imprisonment for ten years or to a fine not exceeding N200,000.00 or both”. To my mind, the only discretion conferred on the learned trial Judge in this regard is as follows:

a. to impose a mandatory term of ten years imprisonment;

b. to impose a fine not exceeding N200,000.00 in lieu of the custodial sentence; or

c. to impose a mandatory term of ten years imprisonment in addition to a fine, which must not exceed N200,000.00.

The learned trial Judge sentenced the appellant to a term of three years imprisonment on count 3. The term of years prescribed in Section 19 (b) is mandatory, just as the term of years in Sections 15 (a) and 16 of the Act are mandatory. I am therefore of the considered view that the learned trial Judge erred in imposing a term of three years. He had no discretion to do so and the Court below erred in affirming the sentence in count 3. The said sentence is hereby set aside. I affirm the appellant’s conviction on count 3 and sentence her to a term of ten years imprisonment. All the sentences are to run concurrently.

Notwithstanding my finding in respect of the sentence imposed on the appellant in respect of count 3 of the charge, I find no merit in the appeal. It is accordingly dismissed. The judgment of the lower Court is affirmed save for the sentence imposed in respect of count 3 of the charge.

Appeal dismissed.

SC.120/2015

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Mohammed V. A-g, Fed (2020) LLJR-SC

Mohammed V. A-g, Fed (2020)

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