Simeon Lalapu V. Commissioner Of Police (2019)

LAWGLOBAL HUB Lead Judgment Report

PAUL ADAMU GALUMJE, J.S.C.

The Appellant herein was arraigned before the High Court of Bayelsa State on a two counts charge of conspiracy to kidnap and kidnapping under Section 444(a) and 291(b) of the Criminal Code Law Cap C14, Laws of Bayelsa State 2006. When the charge was read and explained to the Appellant, he pleaded not guilty. In order to prove its case, the prosecution called three witnesses and tendered in evidence, 1. Call log from airtel, 2. Attestation form, 3. Extra-judicial statement of PW2, the victim of the alleged offence, 4. Extra-judicial statement of the Appellant. They were admitted in evidence and marked Exhibits A, B, C and D respectively. The wife of the Appellant testified as DW1 and the Appellant testified as DW2. Learned counsel for the respective parties addressed the Court. In a reserved and considered judgment delivered on the 9th May, 2014, Aganaba J. found the Appellant guilty as charged and sentenced him to five years imprisonment for the 1st count of the charge, and five years imprisonment for the second count. The sentences were ordered to

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run concurrently.

Appellant’s appeal to the lower Court against the decision of the trial Court was dismissed on the 9th July, 2015. The instant appeal is against the decision of the Court of Appeal. The Appellant’s amended notice of appeal, filed on the 29th December, 2015 contains seven grounds of appeal. These grounds without their particulars read as follows:-

1. The Court below erred in upholding my conviction and sentencing when the police had no reasonable ground or reason to arrest me.
2. The Court below and the trial Court erred in law in acting on Exhibit C as a confessional statement as same was obtain under duress.
3. The lower Court erred in law when it stated that “the contradiction between the oral evidence in Court of PW2 and his extra-judicial statement Exhibit C was explained by PW2 who insisted that he never told the police he could not identify the police who kidnapped him
4. The lower Court erred in law when it stated that “the contradiction or inconsistency in the evidence of PW2 and his extra-Judicial statement Exhibit C has not casted any reasonable doubt upon the guilt of the Appellant.
5. The lower Court erred in law when it stated that “the contradiction or inconsistency in the evidence of PW2 and his extra judicial statement Exhibit C has not casted any reasonable doubt upon the guilt of the Appellant. The Court below erred in upholding the conviction and sentence of the Appellant based on his purported

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confessional statement and the evidence of PW2 as the Respondent did not prove its case beyond reasonable doubt.

6. The trial Court was wrong in disregarding the need for the police to have carried out an identification parade before the Appellant was identified by PW2.
7. The decision of the lower Court is unreasonable, unwarranted and cannot be supported having regard to the evidence before the Court.

Parties filed and exchanged briefs of argument. At pages 2 – 3 of the Appellant’s amended brief of argument filed on the 26th October, 2017, five issues are formulated for the determination of this appeal. They are reproduced hereunder as follows:-

1. Whether from the investigation by the police of the case of the kidnapping of PW2 there was any evidence linking the Appellant to have warranted his being arrested in the first place.
2. If the answer to the above question is no; whether the purported confessional statement extracted from the Appellant after his being shot was given voluntarily.
3. Whether the contradiction between the oral evidence of PW2 and his extra judicial statement as contained in Exhibit C

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was a material contradiction and whether same was explained by PW2.

4. Whether the prosecution proved its case beyond reasonable doubt to have warranted the Court below upholding the conviction and sentencing of the Appellant by the trial Court.
5. Whether based on the extra judicial statement of PW2 that he cannot identify his kidnappers there was the need for the police to have carried out an identification parade.

Mr Lawrence S. Okoko-Jaja, learned counsel for the Respondent argued a preliminary objection he issued against the Appellant’s application for leave to raise and argue fresh issues which were not canvassed at the lower Court, at pages 2 – 6 of the Respondent’s brief of argument filed on 30th August, 2016. Thereafter learned counsel formulated one issue only for the determination of this appeal as follows:-

“Whether the prosecution proved its case against the Appellant beyond reasonable doubt; taking into consideration the fact that the police did not deem it necessary to conduct an identification parade.”

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Mr. U. Saiyou, learned counsel for the Appellant filed a reply brief on the 20th February, 2017.