MOHAMMED AUWAL & ORS. V. THE FEDERAL REPUBLIC OF NIGERIA
(2013)LCN/6072(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 27th day of March, 2013
CA/J/183C/2011
RATIO
“Proof beyond reasonable doubt has been defined by the Supreme Court in the case of Afolalu Vs. State (2010) All FWLR 14 Pt.812 per Mohammed, J.S.C. as: “Proof beyond reasonable doubt is not proof beyond a shadow of doubt. It is not, therefore, proof beyond all possible or imaginary doubt, that is such proof as precludes every reasonable hypothesis except that which it tends to support. It is proof to moral certainty, such proof as satisfied the judgment and conscience of the judge as a reasonable man, and applying his reason to the evidence before him that the crime charged has been committed by the defendant and so satisfies him as to leave no other reasonable conclusion possible. It therefore imposes a duty on the prosecution to prove the main ingredient of the offence charged against the accused person to the satisfaction of the trial judge.” In Akalezi Vs. State (1993) 2 NWLR Pt. 273 p.1 @ 13, Ogwuegbu, J.S.C. described proof beyond reasonable doubt in these words: “Proof beyond reasonable doubt is not attained by the number of witnesses fielded by the prosecution. It depends on the quality of the evidence tendered by the prosecution. In the case of Miller Vs. Minister of Pensions (1947) 2 All E.R 372, it was held that proof beyond reasonable doubt not mean proof beyond all show of doubt and if the evidence is strong against a man, as to leave only a remote probability in his favour, which can be dismissed with the sentence, “of course if is possible, but not in the least probable; the case is proved beyond reasonable.” Per BDLIYA, J.C.A.
“The prosecution is said to have discharged the burden of proving the commission of a crime by an accused person if the Court, based on the evidence before it, entertains no doubt that the accused person committed the offence, and that every ingredient which constitutes the totality of the offence has been satisfied, What this amounts to is that, if there is a failure to establish one element or ingredient, then there is a failure to prove the case beyond reasonable doubt. See Akpa Vs. State (2007) 2 NWLR Pt. 1019 P.504 @ 520; Eyo Vs. State (2013) 1 NWLR Pt.1335 p.324 @ 340; Obiakor Vs. State (2002) 10 NWLR Pt.776 P.612; State Vs. Danjuma (1997) 5 NWLR Pt.506 p.512; Bolande Vs. State (2005) 7 NWLR Pt. 952 P.413 and Alonge Vs. IGP (1959) SCNRL.” Per BDLIYA, J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
Between
1. MOHAMMED AUWAL
2. IBRAHIM YUSUF
3. SALIHU JIBRIN
4. ABDULKARIM MOHAMMED
5. SULEIMAN JIBRIN
6. MOHAMMED ISMAILA
7. MOHAMMED JIBRI
8. SULEIMAN JIBRIN
9. MUSA ABDULMUNI
10. ISAH BELLO
11. ABDULHAMID BELLO
12. ISA DAUDA
13. IBRAHIM JIBRIN Appellant(s)
AND
THE FEDERAL REPUBLIC OF NIGERIA Respondent(s)
IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court, Jos, delivered by Hon. Justice A. L. ALLAGOA on 16th December, 2010, in suit No. FHC/34C/2010. The appellants were arraigned before the Federal High court (hereinafter referred to as the lower court) for alleged commission of offence under section 518(5) of the Criminal Code Act, Cap C38 LFN, 2004; sections 5(1) and 27(1) of the Firearms Act Cap F28 LFN, 2004 and Section 15(2) of the Economic and Financial crimes commission Act, 2004. They were found guilty, convicted and sentenced to various terms of imprisonment by the lower court. Dissatisfied with their conviction and sentences, each of them appealed to this court. An Amended Notice and Grounds of Appear was filed separately by each of them. I think, it is apposite, at this juncture, to set out the background facts of events that gave rise to the arrest, arraignment and trial of the appellants before the lower court before consideration of the grounds of appeal, and the issues distilled therefrom for the determination of the appeal.
Sometime in March, 2010, there was communal disturbances in some parts of Plateau State, particularly around Kadunu Village in Mangu Local Government Area. During the crises, there were massive destruction of lives and properties in the area. The special Task Force set up by the Federal Government of Nigeria to restore law and order was alerted, and with dispatch went to the scene of the disturbances. In course of restoring law and order, the Task Force seized various kinds of ammunitions that were used by the rioters, such as guns, arrows and bows etc. The appellants were seen within the vicinity of the disturbances and were promptly arrested, They, however, claimed that they were victims of the disturbances and were in the process of escaping when they were arrested by the members of the Special Task Force. After investigation of the disturbances’ the appellants were arraigned and tried before the lower Court. They were found guilty, convicted and sentenced to various terms of imprisonment. Dissatisfied with their conviction and sentences, they appealed to this Court. With leave of court, an Amended Notice and grounds of appeal was filed by each of them. There is one original ground and seven (7) additional grounds of appeals. Without their particulars, the original and additional grounds of appeal are as follows in respect of each of the appellants.
ORIGINAL GROUND
The decision is against the evidence before the Court.
ADDITIONAL GROUNDS
(1) The learned trial judge erred in law when he believed and placed reliance on the materially contradictory evidence of PW1 – PW5 to convict and sentence the appellants which error has occasioned a miscarriage of justice.
GROUND TWO
The learned trial judge erred in law when he found that sometimes in January 2010, in Jos and environs in Plateau State crisis erupted culminating in attacks and counter-attacks between Berom, and Fulanis and on the 8/3/2010 during the crisis houses were burnt in Dogo Na Hawa, people were maimed and some killed as a result of the attack on them and the accused around that time were seen together around with dangerous weapons which error has occasioned a miscarriage of justice.
GROUND THREE
The learned trial judge erred in law when he convicted and sentenced the appellants who were not public officers for an offence under Section 15(1) and (2) of the ETCC Act having found that in the accused knew of an impending attack by the Berom particularly they were almost immediately attacked” which error has occasioned a miscarriage of justice.
GROUND FOUR
The learned trial judge erred in law when he found that the accused persons rested their case on the case of the prosecution which error occasioned a miscarriage of justice.
GROUND FIVE
The learned trial judge erred in law when he held that the prosecution has proved count 3 of the charge against the 15 accused persons beyond reasonable doubt which error has occasioned a miscarriage of justice,
GROUND SIX
The learned trial judge erred in law when he found that in the case under consideration there is ample evidence that the accused persons were armed with dane guns, bows and arrows, catapults and other weapons within the vicinity of a place where damage has been done to property and people killed also possession of such dangerous weapons is an offence under the law which error has occasioned a miscarriage of justice.
GROUND SEVEN (7)
The learned trial judge erred in law when he sentenced 7 persons for illegal possession of fire arms when six dane guns were said to be identified by 6 persons which error has occasioned a miscarriage of justice.
With leave of Court, the appellants filed their briefs of argument on 16/11/11. The appellants formulated two issues for determination, which are:
(1) Whether or not the prosecution proved its case beyond reasonable doubt against the appellants for the offence of conspiracy and an offence under the Economic and Financial Crimes Commission Act. (distilled from original and additional grounds, 1, 2, 3, 4, 5, & 6)
(2) Whether the prosecution proved its allegation of illegal possession of firearms against the appellants (distilled from additional ground 7).
The respondent filed its Briefs of argument on 5th April, 2012. Two 2 issues were formulated for the determination of the court. They are:
(i) Whether there is a material contradiction in the evidence of PWs 1 – 5 in respect of the prosecution’s case sufficient in law to impugn the appellants’ conviction.
(ii) Whether or not the prosecution proved its case beyond reasonable doubt against the appellants for the offence of conspiracy, illegal possession of firearms and the offence under the Economic and Financial Crimes Commission Act.
The appeal came up for hearing on the 5th of February, 2013. Sangei Esquire, of learned Counsel adopted the appellants’ brief of argument. He urged the Court to allow the appeal, set aside the judgment of the lower Court, discharge and acquit the appellants, Ihua-Maduenyi Esquire, of learned Counsel adopted the respondent’s Brief of argument, he urged the Court to dismiss the appeal and affirm the judgment of the lower Court.
Issue (1) of the appellant and issue 2 of the respondent are substantially the same in contents and effect. These issues will be taken together; then issue 1 of the respondent and lastly, issue 2 of the appellant. Therefore, the issues to be resolved in this appeal are these:
(i) Whether or not the prosecution proved its case beyond reasonable doubt against the appellants for the offence of conspiracy, illegal possession of fire arms and the offence under the Economic and Financial Crimes Commission Act.
(ii) Whether there is material contradictions in the evidence of PW1 – 5 in respect of the prosecution’s case sufficient in law to impugn the appellants’ conviction; and
(iii) Whether the prosecution proved its allegation of illegal possession of firearms against the appellants.
RESOLUTION OF ISSUES
ISSUE ONE (1)
Whether or not the prosecution proved its case beyond reasonable doubt against the appellants for the offence of conspiracy, illegal possession of firearms and the offence under the Economic and Financial Crimes Commission Act.
What was the case of the prosecution against the appellants at the trial before the lower Court? The case of the respondent (the prosecution, Federal Republic of Nigeria) against the appellants can be found on pages 3 to 4 of the record of appeal, that is, the charge, consisting of three (3) Counts, They are as follows:
(i) That you, Mohammed Auwal ‘M’, Ibrahim Yusuf ‘M’, Adamu Hassan ‘M’, Salihu Jibrin ‘M’, Abdulkarim Mohammed ‘M’, Suleman Jibrin ‘M’, Mohammed Ismaila ‘M’, Mohammed Jibrin ‘M’, Suleman Jibrin ‘M’, Musa abdulmuni ‘M’, Adamu Dauda ‘M’, Isah Bello ‘M’, Abdulhamid Bello ‘M’, Isah Dauda ‘M’, Ibrahim Jibrin ‘M’, on or about the 8th day of March, 2010, in Kadunu Village and its environs in Mangu Local Government Area of Plateau State did conspire among yourselves and agreed to do or cause to be an illegal act to wit: Terrorist acts within Jos Plateau State and environs and you thereby committed an offence contrary to and punishable under S. 518(5) of the Criminal Code Act, cap. C3B, Laws of the Federation of Nigeria, 2004.
(ii) COUNT TWO (2)
That you, Mohammed Auwal ‘M’, Adamu Hassan ‘M’, Abdulkarim Mohammed ‘M’, Mohammed Jibrin ‘M’, Adamu Dauda ‘M’, Abdulhamid Bello ‘M’, and Isah Dauda ‘M’, on or about the 8th day of March, 2010 in Kadunu Village and its environs in Mangu Local Government Area of Plateau State within the jurisdiction of this Honourable Court, did commit an illegal act to wit: Illegal possession of locally made guns (one gun each, totaling 7 guns) without a valid lincese contrary to S. 5(1) of the Firearms Act Cap. F28, Laws of the Federation of Nigeria 2004 and punishable under S.27(1)(c) (i) of the same Act.
(iii) COUNT THREE (3)
That you Mohammed Auwal ‘M’, Ibrahim Yusuf ‘M’, Adamu Hassan ‘M’, Salihu Jibrin ‘M; Abdulkarim Mohammed ‘M’, Suleman Jibrin ‘M’, Mohammed Ismaila ‘M’, Mohammed Jibrin ‘M’, Suleman Jibrin ‘M’, Musa Abdulmuni ‘M’, Adamu Dauda ‘M’, Isah Bello ‘M’, Abdulhamid Bello ‘M’, Isah Dauda ‘M’, Ibrahim Jibrin ‘M’ on or about the 8th day of March, 2010, in Kadunu Village and its environs in Mangu Local Government Area of Plateau State within the jurisdiction of this Honourable Court did commit several terrorist acts to wit: You intimidated, put in fear citizens of Kadunu Village and environs in Mangu Local Government Area of Plateau State while armed with dangerous weapons such as matchetes, knives, bows and arrows, slings, and axes pursuant to which you put in danger the residents of these villages causing the death of several persons, serious injuries to several others, damage to public and private properties and natural resources and thereby committed an offence contrary to and punishable under S. 15(2) the Economic and Financial Crimes Commission Act, 2004.
What is proof beyond reasonable doubt? By the provisions of Section 135(1) of the Evidence Act 2011, (then Section 138(1) of the 2004 Act), the standard of proof of the commission of a crime is proof beyond reasonable doubt. The evidential burden of proof rests squarely on the prosecution, and does not shift throughout the trial or the proceedings. See Akpa Vs. State (2002) 2 NWLR Pt.1019 P.510 @ 519. Section 135(1) of the Evidence Act, 2011 provides thus:
“135(1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.”
Proof beyond reasonable doubt has been defined by the Supreme Court in the case of Afolalu Vs. State (2010) All FWLR 14 Pt.812 per Mohammed, J.S.C. as:
“Proof beyond reasonable doubt is not proof beyond a shadow of doubt. It is not, therefore, proof beyond all possible or imaginary doubt, that is such proof as precludes every reasonable hypothesis except that which it tends to support. It is proof to moral certainty, such proof as satisfied the judgment and conscience of the judge as a reasonable man, and applying his reason to the evidence before him that the crime charged has been committed by the defendant and so satisfies him as to leave no other reasonable conclusion possible. It therefore imposes a duty on the prosecution to prove the main ingredient of the offence charged against the accused person to the satisfaction of the trial judge.”
In Akalezi Vs. State (1993) 2 NWLR Pt. 273 p.1 @ 13, Ogwuegbu, J.S.C. described proof beyond reasonable doubt in these words:
“Proof beyond reasonable doubt is not attained by the number of witnesses fielded by the prosecution. It depends on the quality of the evidence tendered by the prosecution. In the case of Miller Vs. Minister of Pensions (1947) 2 All E.R 372, it was held that proof beyond reasonable doubt not mean proof beyond all show of doubt and if the evidence is strong against a man, as to leave only a remote probability in his favour, which can be dismissed with the sentence, “of course if is possible, but not in the least probable; the case is proved beyond reasonable.”
The prosecution is said to have discharged the burden of proving the commission of a crime by an accused person if the Court, based on the evidence before it, entertains no doubt that the accused person committed the offence, and that every ingredient which constitutes the totality of the offence has been satisfied, What this amounts to is that, if there is a failure to establish one element or ingredient, then there is a failure to prove the case beyond reasonable doubt. See Akpa Vs. State (2007) 2 NWLR Pt. 1019 P.504 @ 520; Eyo Vs. State (2013) 1 NWLR Pt.1335 p.324 @ 340; Obiakor Vs. State (2002) 10 NWLR Pt.776 P.612; State Vs. Danjuma (1997) 5 NWLR Pt.506 p.512; Bolande Vs. State (2005) 7 NWLR Pt. 952 P.413 and Alonge Vs. IGP (1959) SCNRL.
The appellants were tried and convicted on a three Counts Charge before the lower Court for an offence under Section 518(5) of the Criminal Code Act, CAP. C38, Laws of the Federal of Nigeria, 2004; Section 5(1) of the Firearms Act CAP. F2B, Laws of the Federal of Nigeria, 2004, and Section 15(2) of the Economic and Financial Crimes Commission Act, 2004. Section 518(5) of the Criminal Code Act provides:
“Any person who conspires with another to effect any of the following Purposes.
1. ……………………………….
2. ……………………………….
3. ……………………………….
4. ……………………………….
5. to prevent or obstruct, by means of any act or acts which if done by an individual person would constitute an offence on his part, the free and lawful exercise by any person of his trade, profession, or occupation, or
6. ……………………………….
7. ……………………………….
is guilty of misdemeanor or and is liable to imprisonment for two years..
Section 5(1) of the Firearms Act provides thus:
“The Commissioner of Police of a State, with the consent of the Governor of the State, in respect of the State or any person thereof, may by order prohibit the possession or control of any of the categories specified in Part III of the schedule to this Act (in this act referred to as “muzzle-loading Firearm) without lincense or an authority to be specified in such order.”
Section 15(2) of the Economic and Financial Crimes Commission Act, provides as follows:
“Section 15(2) Any person who commits or attempts to commit a terrorist act or participates in or facilitates the commission of a terrorist act, commits an offence under this Act and is liable on conviction to imprisonment for life.”
The learned trial judge after taking evidence from the prosecution and the defence i.e. respondent and the appellants, and having considered the legal submissions or arguments of learned counsel, came to the conclusion that the prosecution had proved the commission of the offences contained in the charge by the appellants and they were convicted and sentenced accordingly. On page 121 of the record of appeal (judgment of the Court), the learned trial judge found as follows:
“In all the circumstances of the case I find that the prosecution has proved the 3 Count charges against the 15 accused persons beyond reasonable doubt and they are therefore jointly/ severally and variously convicted as charged”
Was the learned trial judge right or justified in coming to the conclusion and decision supra having regard to the evidence adduced before it? Sangei Esquire, of Learned Counsel did submit that the respondent has not linked the appellants with the commission of any offence charged. That the evidence led by the prosecution is materially contradictory, and this has raised a reasonable doubt which ought to be resolved in favour of the appellants. In other words, the prosecution has failed to prove the allegation of commission of the offences in all the three counts beyond reasonable doubt as required by the provisions of Section 135(1) of the Evidence Act, 2011. Mr. Ihua-Maduenyi Esquire of Learned Counsel, on the other hand, submitted that there is no material contradiction in the evidence of the witnesses for the prosecution which in law, could impugn the conviction of the appellants for the offences charged in all the counts of the charge, It was his further contention that the prosecution has proved the offences of conspiracy illegal possession of arms and an offence under the Economic and Financial Crimes Commission Act, beyond reasonable doubt as required by law.
What is the evidence led by the prosecution in support of the three counts charge again the appellants at the trial before the lower Court. The prosecution called five (5) witnesses and tendered exhibits. They were Mulenga Mwafunwa, (PW1); Lt. Joseph David (PW2); Monday Nom, (PW 3) ASP, O. Joel, (PW4) and Inspector Gilbert Dakas (PW 5). The appellants called one witness, he was Mohammed Hassan (DW 1). The evidence of the prosecution witnesses and the defence can be found on pages 69 to 89 of the record of appeal. The gist of their testimonies are as follows:
PW1, Mulenga Mwatunwa, recorded the statements of some of the appellants. He supervised the recording of the other appellants. She visited the scene of the disturbances and took photographs, During investigation, she found that there was attack in the neighbouring village of the 8th of March, 2010 in which several houses were burnt. That the weapons found with the appellants were same used in perpetrating the crisis. That the appellants opened fire on the Joint Task Patrol team at the time of their arrest. One corporal was injured. The soldiers responded by firing at them, That the information obtained from one of the appellants’ elders confirmed her investigation. The statements of some of the appellants which were recorded by other police officers were tendered in evidence as Exhibits A1 – A14. The ballistic report was admitted through her without objection. It is Exhibit ‘B’. The statement of Major E. A. Azada to the Police was tendered through her as Exhibit ‘C’.
PW2 Lt. Joseph David, an Army officer in charge of Gindiri. They heard of the crisis on 8th March 2010, he moved into the area with his men. While there, he saw people, the appellants, armed with machetes, and dane guns, He shouted at them. They shot corporal Monday at his left eye, He fell down. He ordered his men to return fire. When the appellants noticed that soldiers power was more than theirs, they stopped the fire. They started to run. Exhibits were recovered from them. The Exhibits were six dane guns, four bows and arrows, three arms, one long knife, one machete, a torch light, one jacket and one charm. One of the attackers was killed by his men, They handed over the corpse and all the exhibits to the police. Under cross examination he said he did not know how many of the appellants shot at his men.
PW3, Monday Nom was the soldier who was shot on the eye. He shot dead of the attackers during the arrest of the appellants. PW 4, ASP S. Ondruje registered the exhibits which were recovered from the appellants, He labeled the. PW5, Inspector Dakas took photographs of the appellants. He visited the scene of the crisis and took pictures. They are exhibits P1-5.
The appellants called one witness. He is Mohammed Hassan. He testified that he knew all the appellants. That on 8/3/2010 he was informed that the Berom people would attack them. As the leader of his community he called Hardo, head of Fulani, he told them what he heard; that security was required. Before long they were surrounded by some people. The people started burning their houses. They were Berom people, He could not identify them because of the situation at the time. Seventeen of them were surrounded. The appellants were there. He advised them to escape: to a secure place. In the process one of them was killed, his elder brother. They met soldiers while trying to escape. They were stopped. The soldiers shot at them. He was shot but survived. The soldiers shot Ahmadu Abubakar. They arrested the appellants. They were herdsmen with their cattle. They had the guns for protection of their cattle. None of the appellants used the guns. The Birom people burnt all the houses. Their animals were looted.
After the incidents police went to the place. They told him they were there to verify the houses which were burnt. He identified Exhibit ‘D’.
Under cross examination he denied that they were rioting in Kadunu on 8/3/2010. He was not aware of attacks and counter attack between his people and the Biroms. That he was aware some Berom people were charged to the court. That there was no war. That the Berom people were attacking the Fulani because they wanted to take their cattle. The evidence of the witnesses for the prosecution and the only one defence witness, have been summarized supra. The lower court found the following facts as established:
(1) There were crises in Jos and environs including the Kadunu Area which resulted in killings and destruction of houses and Properties;
(2) All the accused persons were seen by two eye-witnesses PW2 and PW3 at the scene of the crisis in possession of dangerous weapons such as Dane guns, bows and arrows/ machetes, long knives, axes etc;
(3) The accused persons pulled the trigger and shot at the men of the joint Military Task Force injuring one of them.
(4) All the accused persons in their extra-judicial statement admitted being in possession of the weapons found on them at the scene of arrest;
(5) The ballistic repot of the Dane guns and shot guns revealed residue of burnt propellants which was an indication that the guns were recently fired. They still carried undischarged bullets in them;
(6) Photographs of all the accused persons and the weapons recovered from them positively identified the accused persons.
The learned trial judge held as follows pages 102 – 103 of the record, of appeal:
“Upon consideration of the evidence the following facts are found.
(1) Sometimes in January 2010 in Jos environs in Plateau State a crisis erupted culminating in attacks and counter attacks between the Biroms and Fulani.
(2) The evidence shows that on 8/3/2010, during the crisis houses were burnt in Dogo Nahauwa, people were maimed and some killed as a result of attacks on them.
(3) About that time in Mangu Local Government Area and the environs, all the accused person Were Seen together armed with dangerous weapons.
(4) Soldier on security alert accosted the accused persons and shots were fired at each other between the accused persons and the Soldiers.
(5) As a result of the shooting one person among the Accused persons was shot dead and one soldier was injured from shots fired by the accused persons and he was later treated at JUTH, Plateau State.
(6) As a result of the superior fire power of the soldiers, the accused persons were arrested together with their weapons and taken to the Police Station.
(7) The weapons were registered as Exhibits and tendered before this Honourable Court and admitted as Exhibits.”
The learned trial judge then considered each of the Counts contained in the charge, On Count One (1) he found as follows on pages 106 – 107 of the record of appeal:
“I agree that in the offence of conspiracy the mens rea is not easy to locate as it is mostly, if not invariably, buried in secrecy therefore, the actus reus of the offence is easier to locate so that an inference of conspiracy can be drawn therefrom.
Now the circumstance of this case as per the fact found is that:
(1) The accused persons per the evidence of DW1 know of an impending attack by the Beroms, apparently they were almost immediately attacked.
(2) They subsequently armed themselves with dangerous weapons.
(3) There is eye witness account from the 2nd and 3rd P.W that the accused persons were so armed. Infact the evidence of the PW2 and 3 which I believe is that they shot at the soldiers. Even though by the extra judicial statements of the accused, they stated that they were armed for their protection. I believe that by their action they were out to commit an unlawful purpose or they had already done so.
They, therefore had an opportunity to meet together to agree to commit an unlawful purpose, The matter is more convincing given how close to the place where they were arrested to burn houses where people were killed. From the conduct of the accused persons it can be inferred that they conspired to commit an unlawful purpose and I hereby draw that inference.
The Accused Persons are therefore guilty as charged in Count 1.”
In respect of Count Two (II), which is the offence of illegal possession of firearms, the following facts were established:
(i) There is in evidence extra-judicial statements of the 1st, 4th, 7th, 11th and 12th appellants made to the Police wherein they admitted being in possession of the weapons;
(ii) Eye-witness account of PW2 and PW3 confirming the possession of weapons or firearms with the appellants;
(iii) Exhibit B, the Ballistic report showing that the weapons were firearms that were recently used, and
(iv) The only witness for the defence (appellants) i.e. DW1, confirmed under cross examination that the appellants were in possession of firearms.
The learned trial judge accepted and believed those facts having been established by the prosecution and held as follows on pages 109 – 110 of the record of appeal:
“Here again the evidence against the accused persons in Count II is overwhelming:
(1) The accused persons in Count II in their Extra judicial Statements to the Court admitted being in possession of fire arms.
(2) Vide the evidence of PW2 and 3 the fire arms were recovered by them.
(3) PW1 stated that at the station the Accused persons under Count II identified the weapons as theirs.
(4) DW1 testified that those weapons were in the possession of the said accused persons.
(5) Exhibit B the Ballistic Report shows that the weapon were fire arms recently used.
(6) The Accused persons, in their defence have not proferred any evidence to show that they have licence to be in possession of the firearms, the onus is on a person in possession to show that they are licensed.
I reject the claim by the Accused persons that they were holding the guns for their self protection. That is not a defence under SECTION 518 (5) OF THE C.P.A.
In am the circumstance the prosecution has proved the offence as charged against the 1st, 3rd, 5th, 8th, 11th, 13th and 14th Accused persons beyond reasonable doubt.”
I am in agreement with the submission of Learned Counsel to the Respondent that the principles of law enunciated in the cases of Iniama v. Apkabio (2008) 17 NWLR PT.1116 p.225 @ 310, Terab v. Lawan (1992) 3 NWLR p.231 p.565 @ 590 and ANPP v. INEC (2010) 13 NWLR pt.1212 p.540 @ 620 are not applicable to this appeal at hand. They are distinguishable in that they mostly dealt with documents tendered in election petition cases or proceedings. In this case, only a Ballistic report Exhibit ‘B’, was tendered without any objection merely to show that the weapon recovered from the appellants were firearms. The lower Court was therefore right in holding that the offence with which the appellants were charged with in Count 2 of the charge was proved beyond reasonable doubt.
On Count Three (III), the learned trial judge made the following findings and conclusion on Pages 177 – 119 of the record of appeal.
“In our case under consideration there is ample evidence that the accused persons are 15 in number going together armed with Dane guns, bows, and arrows, catapults and other weapons within the vicinity of a place where damage has been done to property and people killed, there is no doubt that such conduct is to say the least calculated at instituting fear on members of the public or a particular segment thereof or to intimidate such person. Also, possession of such dangerous weapons is an offence under the law more particularly SECTION 5(1) OF THE FIREARMS ACT, More particularly at a time there was crisis in Jos Metropolis and Plateau State in general.
At least as the act provides, the conduct of the 15 accused persons qualities as an attempt to intimidate people or put people in fear as prescribed under SECTION 46(a) (ii) which defines terrorism. BLACK LAW DICTIONARY 8TH EDITION By BRYAN GARNER at page 137 defines attempt to mean: “The act or an instance of making an effort to accomplish something..” An overt act that is done with the intent to commit a crime but that falls short of completing the crime…
The accused person armed for their self protection in the way they were, suggests that they had intended to intimidate or cause fear to members of the public or a segment thereof. Moreso, when there is eye witness evidence of the PW2 and Pw3 which I believe that the accused persons were carrying those weapons and actually shot at the soldier and caused to one of the soldiers injury. In the circumstance the argument of Defense counsel that the accused persons were not actually caught shooting and killing anybody is inconsequential so long as their disposition is capable of constituting fear to members of the public or an attempt so to do.
Also, Exhibit B the Ballistic report shows that the guns were loaded and same had been fired, contrary to the argument on the Defense counsel. It does not matter who actually fired or who used what instrument so long as the accused persons went together, they are caught by the provision of section 15(2) which actus reus requires that a person participates or facilitates This provision together with SECTION 8 of the criminal code inculpates all the accused persons and I agree with the argument of the Prosecuting counsel in this regard.”
I agree with the submission of the learned counsel to the respondent that the learned trial judge was right in arriving at the above findings and conclusions in view of the extra-judicial admission of the appellants, the evidence of PW1, put, PW3 and DW1, which were accepted and believed by the learned trial judge. See Nwachukwu vs. The State (2007) All FWLR Pt.350 p.1380 @ 1406; Igabele Vs. The State (2006) FWLR Pt.311 p.1797 @ 1823 and Fatilewa v. The State (2002) All FWLR Pt. 347 p.655 @ 719. The lower court was therefore right in holding that the respondent had proved the three counts charge against the appellants beyond reasonable doubt.
The trial court had made findings and conclusions after evaluating the evidence before it. It also ascribed evidential value to the evidence adduced before it. This court, being an appellate court, can not disturb these findings and conclusions, unless there are good reasons to do so. The appellants have not been able to show or established that the trial court failed in its duty of evaluating the evidence and ascribing probative value therefor. In the case of Iko vs. The state (2001) 14 NWLR Pt.732 p.221 @ 255 the Supreme Court per Iguh, J.S.C. had his to say:
“It cannot be over-emphasized that the evaluation of evidence and the ascription of the probative value to such evidence are the primary functions of the court of trial which saw, heard and assessed the witnesses as they testified in the witness box. See Akinloye and another Vs. Eyiyola and another (1968) NMLR 92 at 95; Woluchem vs. Gudi (1981) 5 SC 291 at 320 etc. It is only where an appellate court is in as good a position as the trial court to evaluate evidence which has been given in a case, such as where the issue is essentially a matter of inference that can be drawn from proved facts, not resting on the credibility of witnesses as a result of their demeanor in the witness box or of the impression of them by the trial court that it must not hesitate to do so. See Okafor Vs. Idigo III (1984) 6 SC 1 at 36; The Registered Trustees of the Apostolic Faith Mission and Another vs. James and Another (1987) 2 NWLR (Pt. 61) 556 at 567.”
The credibility or otherwise of witness, and the ascription of probative value to the evidence of witness are entirely within the province of a trial court. An appellate court cannot, and should not disturb such exercise unless it was not done, or if done, not property performed before an appellate court can perform such duty. See Rabiu vs. Kure (2010) All FWLR Pt. 539 P.1070 @ 1088; Ibuluya Vs. Dikibo (2010) 18 NWLR pt 627 p.641; Archibong vs. Akpan (1992) 4 NWLR Pt.238 and Balogun Vs. Labiren (1988) 3 NWLR Pt. 80 p.86. Therefore, in view of what have been said in the foregoing paragraphs of this judgment, the prosecution has proved its case beyond reasonable doubt against the appellants for the offence of conspiracy, illegal possession of firearms and the offence under the Economic and Financial Crimes Commission Act. This issue is hereby resolved against the appellants.
ISSUE TWO (2)
Whether there is a material contradiction in the evidence of PWs 1 – 5 in respect of the prosecution’s case sufficient in law to impugn the appellants’ conviction.
This issue has been distilled from ground one (1) of the additional grounds of appeal, particularly, the particulars thereof. To fully comprehend and appreciate the import and purport of this ground of appeal and the distilled issue therefrom, the said ground of appeal is reproduced hereunder:
1. The learned trial judge erred in law when he believed and placed reliance on the material contradictory evidence of PWs 1 – 5 to convict and sentence the appellants which error has occasioned a miscarriage of justice.
PARTICULARS
(a) PW1 stated that the Appellants were taken to the C.I.D. Jos on the 8/3/2010 and Major E.A. Azeanda fed the team to where the Appellants were arrested.
(b) PW2 stated that the Appellants, the Exhibits and corpse were handed to the Police at Mangu Police Station and that he, PW2 is the team leader that arrested the appellants and he did the arrest and recovered “6 dane guns, 4 bows and arrows, 3 axes, one long knife, one machete, a touch and one life jacket containing charms”‘
(c) PW3 stated that he arrested the Appellants “with 6 dane guns, 4 bow and arrows, 3 machetes, one long knife, one touch and one life jacket.”
(d) PW1 stated that she took the accused persons to the exhibit room on the 9/3/2010 where the accused persons identified the exhibits and PW4 stated that it was on the 10/3/2010 that PW1 alone brought the recovered items to PW4.
(e) PW2 stated that the pictures were taken at Mangu Police Station and PW5 stated that he snapped the pictures at the C.I.D. Jos.
(f) PW1 stated that 2 knives were identified by the 7th and 11th accused persons to be their possession, PW2 mentioned 1 long knife.
(g) The count 2 charged the Appellants for being in possession of 7 guns and the PW2 gave evidence on 6 guns.
(h) PW2 the arresting officer did not mention recovering slings, PW1 stated that the 4th and 5th Appellants identified 2 slings as theirs.
(i) PW1 referred to touch as a weapon recovered from the Appellants.
(j) PW1 stated that she saw houses that were bunt families of the deceased, PW2 and PW3 who claimed to have arrested the Appellants did not state that houses were bunt and other persons were killed apart from the Appellants relations.
(k) PW2 under examination stated that the distance between them and the accused persons at the time of the arrest of the Accused persons was about 100 metres and PW3 who was with PW2 and claimed to have been shot stated that the distance was about 3 metres.
Sangei Esquire, submitted that the respondent did not prove the three Counts charge against the appellants in view of the material contradictions in the evidence of the prosecution witnesses which have been pin-pointed in the particulars of the 1st additional grounds of appeal. On the other hand, learned counsel to the respondent contended that there are contradictions but badges of truthfulness in the sequence of events. Learned counsel referred to the alleged material contradictions as spelt out in the particulars of the relevant grounds of appeal from which this issue has been culled, and reacted to them as follows:
(a) There is no contradiction in the testimony of PW1 about all the appellants being taken to C.I.D., Jos on the 8/3/2010. All the appellants were arrested at Kadunu Village and taken to Mangu Police Station which is the Police Station in the Local Government Area. It is from there they were transferred to State C.I.D. Jos. All the appellants made their extra-judicial statements at the State C.I.D. Jos.
(b) Major E.A. Ezeandu is the head of the Joint Military Task Force in plateau State and by virtue of which he coordinates all arrests by the task force. Major E. A. Ezeandu was never called as a witness.
(c) There is also no contradiction in the testimony of PW2 that the appellants, the exhibits and corpse were handed to the Police at Mangu police Station and that PW2 is the team leader that arrested the appellants. This testimony is correct. PW2 is the team leader for the operation that arrested the appellants. The task force is made up of the Police, army and Air Force personnel. The testimony of PW2 and PW3 that they arrested the appellants is correct since they were members of the team that carried out the arrest.
(d) The testimony of PW1 at page 70 of the records is very clear. PW1 says:
“I took the exhibits to the exhibit keeper and they were registered. I also went with the accused persons to the exhibit room where the accused Persons identified the exhibits and it was registered…”
(e) The testimony by PW2 that the pictures were taken at Mangu Police Station and PW5’s testimony that he snapped the picture at the State C.I.D. Jos is not contradictory. Photographs were taken at both the Mangu Police Station and at the State C.I.D. Jos. PW5 took the photographs at the State C.I.D, Jos. He was called as a witness to tender the photographs he took. The photographs taken at the Mangu Police Station are not tendered in court.
(f) The testimony of PW1 and PW2 on the weapons recovered from the appellants are two distinct testimonies that show the different strengths of the recollection of their memory. Two witnesses who participated in the same incident are not bound to describe it in the same way. There is bound to be slight differences in their account of what they did or what happened.
(g) Only five of the present Appellants, that is, 1st, 4th, 7th, 11th, and 12th were charged and convicted of being in possession of Dane guns, while six Dane guns were tendered as exhibits.
(h) There is no contradiction about the appellants being in possession of slings. The testimony of PW1 is correct as both 4th and 5th accused who are the 3rd and 4th appellants being in possession of slings in their extra-judicial statements.
(i) No contradiction in the testimonies of PW1, PW2 and PW3 as they all testified as to what they saw and did at the scene of crime.
(j) The distance between the Appellants of PW2 and PW3 is not material. The testimony of PW2 and PW3 clearly shows that at the scene of crime, these two witnesses and the Appellants confronted themselves and had a shoot-out before arrest.
The gist of the alleged material contradictions could be summarized thus:
(1) Whether the appellants, after their arrest were taken to Mangu Police Station or State C.I.D., Jos.
(2) Who was the actual arresting officer
(3) Date exhibits were handed over to the Exhibit Keeper
(4) Whether photographs were taken at Mangu Police Station or State C.I.D., Jos, and
(5) The testimony of one witness to one sling and of another to two slings.
The evidence of the prosecution witnesses are found on pages 69 to 82 of the record of appeal. Earlier in this judgment when dealing with issue One (1), the evidence of the witnesses were summarized, including the one witness of the appellant. it is not necessary to have a resume of the evidence again, suffice to make reference to the testimonies where appropriate. The learned trial judge considered the alleged contradictions in the evidence of the prosecution witnesses on pages 94 – 121 of the record of appeal, and arrived at the decision that there were no contradiction but discrepancies in the evidence of the prosecution. Even if there were so, such minor contradictions can not and did not affect the case of the prosecution. Was the learned trial judge right in arriving at that decision? First of all, what amounts to contradiction is the evidence of witnesses? If any, of what effect on the case or offence such evidence were adduced to prove or substantiate? A piece of evidence is said to be contradictory when it asserts or affirms the opposite, or where two sets of evidence are themselves inconsistent to each other or they are mutually repugnant and can not both stand or be true. The acceptance of one set implies the rejection of the other set; that is to say, two sets of evidence are inconsistent and therefore contradictory when they are in essence mutually exclusive such that if one is true, the other must be false, because the two can be true or correct, though both may be false. See Isiekwa V. The State (1999) 9 NWLR Pt.617 p.43 @ 69, Stephen v. The State (1009) All FWLR Pt.49 p.962 @ 916; Kwagshir V. The State (1994) 2 NWLR Pt. 328 P- 529 and Asanya V. The State (1999) 3 NWLR Pt.180 p.422.
In Ehienwe v. The State (2011) 7 NWLR Pt. 1246 p.402 @ 413, the Supreme Court held that for a statement to be contradictory it should be a direct opposite of what was earlier spoken or stated.
There can be material and immaterial contradictions in the evidence of witnesses. Consequently any piece of evidence relating to any of the essential ingredients of the offence which the prosecution is by law bound to prove in order to succeed is material evidence and any contradiction relating to such evidence is a material contradiction. An immaterial contradiction, on the other hand, is a contradiction which does not touch on any of the main elements of the offence the prosecution is required to prove in order to secure the conviction of an accused person. See Dibietoru V. The State (2002) All FWLR Pt.363 p.83.
Are there contradictions, material or immaterial in the evidence of the prosecution witnesses as canvassed by the learned Counsel to the appellants. I have dispassionately scrutinized the particulars of the 1st additional ground of appeal which are the pieces of evidence of the prosecution witnesses alleged to be contradictory. In my view they are issues relating to events after the disturbances in the village of Kadunu on the 8th of March, 2010. I agree in toto with the submission of learned Counsel to the respondent when he submitted that they relate only to issues after the alleged commission of the offence with which the appellant were charged. They are not on material elements of the offence which must be proved before conviction can be secured. At best they can be regarded as minor discrepancy which do not affect the credibility of the witnesses. Such minor contradictions or discrepancy can be ignored by the Court in so far there are credible and reliable evidence before the court. I am fortified in coming to this conclusion by the case of The State Vs. Azeez & Ors. (2008) All FWLR PT. 424 p.1423 where Ogbuagu, J.S.C, said:
“If any contradiction however trivial to the overwhelming evidence before the court, will vitiate a trial, nearly all prosecutions will fail.”
In view of the foregoing, I am of the firm view that there are no material contradictions in the evidence of the prosecution witnesses (PWs 1 – 5) which impugned the conviction of the appellants. The position of the law has been well settled by the supreme court in the case of Iko vs. State (2001) 14 FWLR pt.332 p.221 @ 240, where Kalgo, J.S.C. said:
“It is now well settled that for contradiction on evidence of witnesses for the prosecution to effect conviction, they must be sufficient to raise doubt on the guilt of the accused persons. In the instance case the minor discrepancies in the evidence of the prosecution witnesses are not in my view, sufficient, by themselves to enable the appellants to an acquittal.”
Adekeye, J.S.C., added her voice of support to the above position of the law in the case of Afolalu v. State (2010) All FWLR (Pt.538) p.817 @ 837 where she said:
“Before any conflicts or contradiction or even discrepancies in the evidence of the witnesses for the prosecution can be fatal to the prosecution’s case, the conflict or contradiction must be substantial or fundamental to the main issue in question before the trial court and therefore necessarily create some doubt in the mind of the trial court, then, an accused is entitled to the benefit therefrom.
Having regarded to the foregoing principles of law in mind, and applying same to the facts of the case at hand, and evidence adduced by the prosecution at the trial court, I hold that there are no material contradiction in the evidence of PWs 1 – 5 in respect of the prosecution’s case sufficient in law to impugn the appellants’ conviction for the offences in the three Count charge. This issue is so resolved.
ISSUE THREE (3)
Whether the prosecution proved its allegation of illegal possession of firearms against the appellants?
Sangei Esquire, for the appellants did adumbrate that the prosecution did not adduce sufficient credible, cogent or reliable evidence proving that the weapons have been identified with the appellant, which are prohibited by Sections 5(1) and 27(1) of the Firearms Act, That the numerical number of the dane guns and other items mentioned to have been recovered by the Task Force members at the scene of the disturbances raised a doubt in the case of the prosecution, This is so because the number of the dane guns, and other items stated in the charge, count 2, the evidence of the witnesses and in the judgment of the trial Court are at variance. Also there is no evidence on who owned what. The forensic report, Exhibit B, has not been tied to a particular gun. All these, in his opinion, are materially important to affect the case of the prosecution in regard to Count II of the charge. The case of Com. Of Police Vs. Ekweghiariri (1975) 5 ECSLR 350 @ 354 was cited to buttress the submissions supra.
It was counsel’s further submission that exhibit ‘B’ was just dumped on the Court without any explanation by an expert. It was not the business of the trial judge to embark on a voyage of discovery to find out by himself, the contents and import of the said exhibit. That was the duly of expert witnesses. The case of Iniama Vs. Akpabio (2007) 17 NWLR Pt.116 p.225; Terab Vs. Lawan (1992) 3 NWLR Pt.231 p.569 and ANPP Vs. INEC (2010) 13 NWLR Pt.1212 p.549 were cited to reinforce the submissions of learned counsel. The court has been urged to hold that the prosecution has not been able to prove the 2nd Count of the charge against the appellants convicted, therefore, this issue be resolved in their favour.
On this issue, learned counsel to the respondent submitted that what is required of the prosecution to be proved is only physical possession and usage of the firearms. It was his further contention that those convicted of this Count were 1st, 4th, 7th, 11th and 12th appellants. That there were credible evidence to support their conviction having regard to their confessional statement to the police. That the evidence of PW2 and PW3 confirmed the possession of the weapons by the said appellants, Exhibit ‘B’ the ballistic report showed that the dane guns were recently used. It was pointed out that DW1, the only witness for the appellants admitted that the appellants were in possession of the guns but they were for the protection of their animals. In this case, learned counsel pointed out, no bulky documents were tendered as was the case in the cases of Iniama Vs. Akpabio (2008) 17 NWLR Pt.1116 p.225; Terab Vs. Lawan (1992) 3 NWLR Pt.231 p.569 and ANPP Vs. INEC (2010) 13 NWLR pt.1212 p.540. Rather in this case, it was submitted, only a forensic report was admitted in evidence. There was no need for examination of same, having regard to its contents. It was submitted that the extra-judicial admissions of the appellants, coupled with the evidence of PW1, PW2, PW3 and DW1, the offence of illegal possession of firearms with which the appellants were charged, had been established by the prosecution, notwithstanding the appellants’ complaint.
As earlier pointed out in this judgment, there were no contradictions in the evidence of the prosecution witnesses on the number of guns or firearms generally that where recovered from the appellants. Having admitted being in possession of the guns and or the firearms, the offence of illegal possession thereof, have been proved, notwithstanding the evidence of DW1 who testified that the guns were for the protection of their animals. The learned trial judge assessed the credibility of the witnesses, he accepted and believed their evidence. This Court can not interfere with such findings and conclusions without good cause to do so. See Iko Vs. State (2001) 14 NWLR pt.132 p.221 and Modafe Vs. State (1988) 4 NWLR pt.87 p.130 @ 37.
In view of the foregoing, the prosecution had proved the allegation of illegal possession of firearms against the appellants who were so convicted. This issue is so resolve. Having resolved all the three (3) issues against the appellants, the appeal fails, same is dismissed. The judgment of the lower Court is hereby affirmed.
RAPHAEL CHIKWE AGBO, J.C.A.: I was privileged to read in advance the lead judgment delivered by my learned brother Bdliya, JCA and I agree completely with both his reasoning and conclusions. The judgment is exhaustive and I have nothing else to add. I abide by all the consequential orders contained therein.
PETER OLABISI IGE, J.C.A.: I was afforded the opportunity of reading the Judgment just read by my Noble Lord BDLIYA, JCA.
My Lord has painstakingly examined all the issues raised in this appeal. I have nothing to add.
The appeal is hereby dismissed. The decision of the lower court is affirmed.
Appearances
A. A. Sangei Esg. (with A. Shehu Esq, and F. Oyafeme Esq.)For Appellant
AND
C. U. Ihua-Maduenyi Esq.For Respondent
