When The Offence of Conspiracy to Commit a Fake Kidnap Will Not Be Said to Have Been Committed

CASE TITLE: BABATUNDE v. STATE OF LAGOS (2023) LPELR-61117(CA)
JUDGMENT DATE: 3RD OCTOBER, 2023
PRACTICE AREA: CRIMINAL LAW AND PROCEDURE (CONSPIRACY TO FAKE KIDNAPPING)
LEAD JUDGMENT: MUHAMMAD IBRAHIM SIRAJO, J.C.A

SUMMARY OF JUDGMENT:

INTRODUCTION:

This appeal borders on the offenses of conspiracy and fake kidnapping.

FACTS:

This is an appeal against the judgment of the Ikeja division of the Lagos State High Court.

The Appellant, as the 2nd Defendant in the lower Court, on July 4, 2023, at the Lagos office of the DSS that the 1st defendant, in the case before the lower Court, had been kidnapped by some unknown men who pretended to be prospective land buyers. Events later followed in quick succession as the same storyline was fed to the press in an interview and even to the Police. This was later found out to be a ruse, planned and orchestrated by the Appellant and the co-defendant in the case, for the obvious reason of deceiving the public into currying sympathy for the 1st Defendant in the case, who was said to be enmeshed in a traditional title dispute in his domain, which was reported to involve the State Government.

With the strong suspicions of the law enforcement agents of the veracity of the Appellant’s report, the Appellant was arrested and subsequently questioned, both at the DSS office and at various Police formations, which were documented and tendered at trial as exhibits.

The Appellant together with one other person, were tried for the following offenses:

i. conspiracy to commit a felony contrary to Section 411 of the Criminal Law of Lagos State.
ii. Making false statement to the public officer with intent contrary to Section 96 (a) of the Criminal Law of Lagos State and
iii. False representation to release a kidnapped person contrary to Section 6(1) of the Kidnapping Prohibition Law of Lagos State.

At the conclusion of trial, the Appellant was convicted on two counts of conspiracy to commit a felony and the offence of making a false statement to public officer. Consequent to his conviction, the Appellant was sentenced, on the 27th day of September, 2022, to a 10-year term of imprisonment without an option of fine on the 1st count and One-year imprisonment with an option of N250, 000 fine on the 2nd count. The Appellant was however acquitted on the 3rd count, to wit, False representation to release a kidnapped person. The Appellant was dissatisfied with the said judgment, especially the part that convicted and sentenced him to 10 years imprisonment for conspiracy to kidnap contrary to Section 3 of the Anti-kidnapping Law of Lagos State, for which, the Appellant contended, he was not charged. He therefore approached the Court of Appeal.

ISSUE(S) FOR DETERMINATION:

The Court determined the appeal with the issues formulated by the respondent as follows:

“i. Whether the Learned trial Judge was right to have convicted the Appellant when the essential ingredients of the offences had been proved against him?
ii. Whether the Learned trial Judge was right to have sentenced the Appellant having found him guilty of the conspiracy to commit a fake kidnapping?”

DECISION/HELD:
The appeal was held to be meritorious and it was allowed.

RATIO(S):
• EVIDENCE – BURDEN OF PROOF/STANDARD OF PROOF – Burden and standard of proof in criminal cases and whether it shifts
• CRIMINAL LAW AND PROCEDURE – OFFENCE OF CONSPIRACY – Whether a charge of conspiracy will automatically fail where the charge for the substantive offence fails
• CRIMINAL LAW AND PROCEDURE – OFFENCE OF KIDNAPPING – When the offence of conspiracy to commit a fake kidnap will not be said to have been committed
• CRIMINAL LAW AND PROCEDURE – CONVICTION AND SENTENCE – Whether a person can be convicted and sentenced for two different offences based on the same factual situation in respect of one transaction in the same proceedings
• CRIMINAL LAW AND PROCEDURE – CONVICTION – Whether a person charged with one offence may be convicted of another offence he was not charged with; condition(s) that must be satisfied to convict for an offence not charged
• CRIMINAL LAW AND PROCEDURE – OFFENCE UNKNOWN TO LAW – Whether an offence and its punishment must be prescribed by a written law
• CRIMINAL LAW AND PROCEDURE – OFFENCE OF CONSPIRACY – Whether an accused person may be charged for the offence of conspiracy to commit a particular offence without being charged with the commission of that substantive offence