ABDULLAHI MOHAMMED v. FEDERAL REPUBLIC OF NIGERIA
(2019)LCN/12747(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 27th day of February, 2019
CA/A/885C/2017
RATIO
APPEAL: WHETHER FRESH OR NEW ISSUES CAN BE RAISED ON APPEAL
“The law that fresh or new issues cannot be raised in an appeal without the leave of Court first had or obtained to do so is restated by an unending line of judicial decisions. Examples of such decisions include Gabriel v. The State (1989) All NLR 457 or (1989) LPELR 1298 (SC), Nwachukwu v State (2007) 7 SC 1 and Oseni v Bajulu (2009) LPELR 2796 (SC).” PER EMMANUEL AKOMAYE AGIM, J.C.A.
JUSTICES
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
ABDULLAHI MOHAMMED Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA Respondent(s)
EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment):
This appeal No. CA/A/885C/2017 was commenced on 30-6-2017 when the appellant herein filed a notice of appeal against the judgment of the Federal High Court at Minna delivered on 31-3-2017 in charge No. FHC/MN/CR/30/2013 by A.I. Chikere J. The notice of appeal
contains 3 grounds for the appeal.
Both sides filed, exchanged and adopted their respective briefs as follows- appellant’s brief and respondent’s brief.
The appellant’s brief raised two issues for determination as follows-
1. Whether the learned trial judge can pick or choose between the evidence of witnesses without giving any reason for relying on one and disbelieving the other.
2. Whether the prosecution has proved its case against the Appellant beyond reasonable doubt to secure conviction of the Appellant.
The respondent’s brief also raised two issues for determination as follows-
a) Whether the Respondent has proved its case against the Appellant beyond reasonable doubt to secure conviction of the Appellant.
b) Whether the Appellant can raise a new issue on appeal which was not raised at the lower Court.
I will determine this appeal on the basis of the issues for determination raised in the appellant’s brief.
Before I delve into the said issues raised for the determination of the merit of this appeal, let me observe that the notice of appeal that commenced this appeal was commenced on 30-6-2017, the 91st day from 31-3-2017, the date the judgment appealed against was delivered, contrary to S. 24 (2)(b) of the Court of Appeal Act 2004, which provides that- ‘The periods for the giving of notice of appeal or notice of application for leave to appeal are – in an appeal in a criminal cause or matter, ninety days from the date of the decision appealed against.’ This appeal is therefore filed out of time. The appellant did not apply for extension of time for him to appeal against the judgment convicting and sentencing him. As it is, the appeal is incompetent and void ab initio. See Etim v The State (1982) 10 SC (Reprint) 10,Kpema v The State (1986) LPELR ? 1713 (SC).
Be that as it is, I am proceeding to determine the merit of the appeal for completeness.
I will determine the two issues raised for determination in the appellant?s brief together.
I have carefully read and considered the arguments of both sides on these issues.
The appellant was charged with, tried, convicted for possession without lawful authority of seventy three rounds of 7.6mm nato live ammunition and eleven round of 9mm live ammunition contrary to S.8 and punishable under S.27(1) (b)(ii) of the Fire Arms Act Cap F28 LFN 2004 and sentenced to 3 years imprisonment without option of fine. The appellant has brought this appeal against his conviction.
S.8(1) of the Fire Arms Act creates the said offence for which the appellant was convicted thusly- “No person shall have in his possession or under his control any ammunition in respect of any firearm agreed to in the schedule to this Act except in accordance with the terms of licence or permit granted to him or in force in respect of such arms.”
The Supreme Court in Okashetu v State (2016) LPELR 40611 (SC) and State v Oladotun (2011) 10 NWLR (pt. 1256)
542 restated the ingredients of this offence thusly-
(i) That the accused was found in possession of firearms.
(ii) That the firearms were within the meaning of the Act.
(iii) That the accused had no license to possess the firearms.”
The Supreme Court in Nwachukwu v State (2007) 7 SC 1 elaborated on the ingredients of this offence and the requirements of proof of those ingredients thusly- ‘Possession of firearm, without more, is not a crime. It becomes a crime when and if the possession is ‘without lawful excuse’, that is, without a valid licence issued by the appropriate authority. Appellant?s case is that the onus of proof that the appellant had no licence to possess the firearm was on the prosecution. This, in my view, is tantamount to subjecting the prosecution to proof of negative assertion. See Aiyetoro Comm. Trading Co Ltd v. NACB Ltd (2003) 12 NWLR (Pt. 834) 346 (ratio 6), ACB Ltd v. Yesufu (1996) 1 All NLR 328.’
In any case, whether or not the appellant had a licence for the firearm in his possession is a matter peculiarly with his person knowledge. Contrary to the argument of learned counsel for the appellant and in conformity with the argument of learned Counsel for the respondent, the onus is on the appellant to justify in law his possession of firearm by positive proof that he has a licence issued by the appropriate authority. This failure to discharge the said onus shows that his possession of Exhibit A was unlawful and in contravention of Section 3 (1) of the Act (supra). It is enough that he prosecution said that he had no authority to possess firearm. Once this is done he has to prove the contrary. See also Manya v State (2012) LPELR 15185 (CA) and Stephen v. State (2008) LPELR 8360 (CA).
The trial Court correctly found as a fact that both sides agree in their evidence that a blue polythene bag containing seventy three rounds of 7.6mm nato live ammunition and eleven round of 9mm live ammunition for FM Rifle and Pistol respectively and one empty magazine was found inside the roof of the appellant?s residential house.
The exact of the finding and holding of the trial Court reads thusly- ?The Prosecution?s case is that the ammunitions were found in the house of the Defendant.
The Defendant does not deny the fact that the ammunition was found in his house but that it could have been placed there by some other person except him.
Exhibit D, the Statement of the Defendant written by himself, he states;
Inside the ceiling of the house the ammunition was seen in my house, but I do not know anything about in.”
The Defendants admits that the 73 live ammunition of 7.62mm (Exhibits B1-72 11 rounds of live ammunition 9mm Exhibit A1-A10 and 1 empty Magazine Exhibit C, were seen in his house.
PW2 and PW3 also testified to the fact that the ammunitions were found in Defendant?s house when they searched it.
In the instant case, in the absence of any plausible explanation, the Defendant is answerable and liable for illegal possession of the ammunitions.
However, the admission of Defendant in his statement Exhibit C that the ammunition were found in his house satisfies the definition of possession as held in OLADOTUN V STATE (SUPRA) by the Supreme Court. I so hold that prosecution has proved that the accused person was found in possession of the firearms.
That the Defendant has no licence, if the Defendant had licence, the charge would not have been unlawful possession. Something is unlawful if not permitted by law.
I agree with learned prosecutor that possession of Firearm without more is not a crime; it becomes a crime when and if the possession is without lawful excuse i.e. without licence issued by the appropriate authority.”
The trial Court also found as a fact that- ?the prosecutor has proved that the Defendant was in unlawful possession of firearms contrary to Section 8 of the Act.Lastly, that the Firearms/ammunition was within the Meaning of the Act. The Firearm Act CAP F28 LFN 2004 Section 2 under Interpretation defines Ammunition thus:
Ammunition for Firearm and component part of any such ammunition but does not include gun power or trade powder not intended or used as a components part;
There is no dispute between parties and no contention that what was recovered from the house of the Defendant was ammunition under the Act.”
There is no ground of this appeal that complained against or challenged the above findings of fact and holdings of the trial Court. None of the said grounds of this appeal isolated any of the specific findings or holding for attack or complain. By not appealing against these findings, the appellant accepted them as correct, conclusive and binding upon it. See Iyoho v Effiong (2007) 4 SC (Pt III) 90 and Dabup v. Kolo (1993) 12 SCNJ 1.
The central theme of the complain in this appeal is on how the trial Court treated the evidence of the appellant disowning the blue polythene bag and explaining that it must have been put in the roof of his residential house by somebody else and not him and the failure of the trial Court to consider the absence of evidence by the prosecution on the finger print on the blue polythene bag.
Learned Counsel for the appellant argued that while PW3 and PW4 testified that the appellant admitted that he owned the bag, the appellant as DW2 and DW3 testified that appellant denied knowing the owner of the blue polythene bag and its contents, that the evidence of PW3 and PW4 that the appellant snatched the bag from DW3 and ran to the bedroom with it is controverted by the evidence of PW3 who brought down the bag from the roof that it was PW3 that snatched the bag from DW3, that the prosecution did not adduce evidence of the finger print on the blue polythene bag to resolve the doubt on who kept the bag in the roof of the appellant’s residence, and on who snatched the bag from DW3 when he brought it down from the said roof, that the evidence of the said finger print is vital to the prosecution?s case to clear the doubt as to whether it was those who broke into the appellant’s house that planted or left the bag and its content in the ceiling of the house, that the failure of the prosecution to call a finger print expert to testify on the said finger print on the bag is fatal to the prosecution’s case, that the trial Court was wrong to rely on the evidence of PW3 and PW4 without regard to the fact that it was controverted by the evidence of DW2 and DW3 which has cast serious doubt on the testimonies, that the prosecution admitted the evidence of DW2 and DW3 that the appellant’s house was broken into through the roof by robbers or buglers and so the fact does not need further proof and that it is unsafe and unjust to allow the conviction to stand.
Learned Counsel for the respondent argued replicando that the prosecution proved its case beyond reasonable doubt in line with S.135 of the Evidence Act, that the onus was on the appellant to justify his possession of the ammunitions by proof that he has a licence issued by the appropriate authority, that the appellant had testified that he did not have the licence to possess the ammunitions, that the claim by the appellant that his house was broken into by robbers is no defence, that the issue of the need for evidence of any finger print on the blue polythene bag was not raised at the trial Court and so cannot be raised here for the first time without the leave of Court as the appellant has done, that this Court should discountenance the issue of the need for evidence of finger prints on the bag.
Let me now determine the merits of the above arguments of both sides.
By virtue of S.135(1) and (2) of the Evidence Act 2011 the respondent as the prosecution had the primary legal burden to establish beyond reasonable doubt the ingredients of the offence of possession of ammunitions in respect of firearms without licence or permit. Both sides agree in their evidence that the blue polythene bag containing the ammunitions was found in the roof of the appellant?s residence and appellant testified in open Court that he had no license or permit to possess the ammunitions for firearms or a component part of such ammunition.
Since the evidence adduced by the prosecution establish beyond reasonable doubt that the ammunitions were in his possession because they were found in the roof of his residence, and that he could not produce any licence or permit for the possession of the ammunitions, the evidential burden shifted to the appellant to establish by preponderance of evidence that the possession is lawful in that he has a permit or license from the relevant competent authority. See Bille v. State (supra). This is in keeping with S.135(3) of the Evidence Act 2011 which provides that ?if the prosecution proves the commission of a crime beyond reasonable doubt the burden of proving reasonable doubt is shifted on to the defendant.”
Learned Counsel for the appellant has argued that the testimonies of DW2 and DW3 that appellant is not the owner of the blue polythene bag and its contents that he does not know who put or left it in the roof (Ceiling) of his residence and that it was PW3 that snatched the bag from DW3 when he brought it down from the roof of the appellant’s residence where it was seen lying, that the appellant?s house was broken into through the roof by robbers, creates doubt about the ownership of the said bag and its contents, who left or put it in the roof of the appellant’s residence and who took it from DW3 when he brought it down from the ceiling in the appellant’s residence and that these doubts which were not resolved cast serious doubt in the prosecution’s case, were fatal to the prosecution’s case and ought to have been resolved in favour of the appellant.
I do not agree with these arguments of Learned Counsel for the appellant for the following reasons. The prosecution has no duty in law to prove that the appellant owned the bag and the ammunitions contained therein. It had no duty in law to prove who kept or left the bag in the appellant’s residence. It had no duty to prove that, in fact the appellant had actual knowledge of the nature of that which he had. The evidence of the bag and its contents being in the appellant’s possession gives rise to the rebuttable presumption that he owned the bag and its contents, that he left or put the bag in his residence and that he was in control of the bag and its contents.
The appellant’s evidence did not rebut this presumption. The mere denial by DW2 and DW3 of the testimony of PW3 and PW4 that the appellant initially admitted that he owned the bag, that it contained his personal belongings and that he kept or left it in the ceiling of the roof of his residence is not enough to rebut that presumption. Learned Counsel for the appellant admits this position by his contention that there is doubt on who owned the bag and its contents, who kept or left it in the appellant’s residence and who took it from DW3 when he brought it down from the roof of the appellant’s residence where it was lying because the testimonies of PW3 and PW4 differ from the testimonies of DW2 and DW3 on these facts. The reasonable doubt S.135(3) of the Evidence Act 2011 requires the defence to prove is in the fact the prosecution must prove and has proven to establish its case against the accused beyond reasonable doubt. In our instant case that fact is the appellant’s possession of the ammunitions without licence or permit from the competent authority.
The facts which the defence must prove to establish reasonable doubt in the prosecution’s case, must not be subject to conjecture or doubt. If those facts are open to conjecture or doubt, then the defence cannot on the basis of those facts establish reasonable doubt in the prosecution?s case. So if the fact that the appellant is or is not the owner of the bag and its contents, that he does not know who left or kept the bag and its contents in the ceiline of the roof of his residence is subject to conjecture and is doubtful as Learned Counsel for the appellant has admitted in his argument in the appellants brief, then the appellant has failed to show that even though the bag and its contents were found in his residence, he has no knowledge that it was there as he did not keep it there and does not know how it got there, who left or kept it there and for what purpose. The evidence elicited by the appellant failed to establish reasonable doubt concerning his possession of the bag and the ammunitions in it.
It is noteworthy that the offence in S.8(1) of the Fire Arms Act for which the appellant was tried and convicted is having in his possession ammunition in respect of any firearm without licence or permit. The very fact of the appellant?s possession of the ammunition without licence or permit establishes the offence without more. The offence created under S.8(1) of the Fire Arms Act is not being the owner of the ammunitions. So the prosecution has no duty to prove that the ammunitions belonged to the appellant before it can prove the appellant’s commission of the offence in S.8(1) of the Fire Arms Act. So the fact that the PW3 and PW4 differ from DW2 and DW3 in their testimonies on the ownership of the bag and its content has no bearing on the prosecution’s case. His possession of the ammunitions gives rise to the presumption that he kept it in his possession or that it is under his control. As I have already held herein, the appellant failed to rebut this presumption.
In the light of the foregoing, the prosecution did not need to adduce evidence of any finger print on the bag and its contents to succeed in proving its case against the appellant beyond reasonable doubt. The fact of the appellant’s possession of the ammunitions without licence or permit established beyond reasonable doubt his commission of the offence. It is for the appellant to introduce any evidence he considers necessary or relevant to prove reasonable doubt about his possession of the ammunitions without licence or permit.
In any case, the issue of the absence of the finger print evidence and the need for it was not raised at the trial Court and is being raised here in this appeal in the appellant’s brief for the first time without the leave of Court first had and obtained to do so. The judgment of the trial Court did not consider and determine that issue. I agree with the argument of Learned Counsel for the appellant that the issue is a fresh issue and can only be raised n this appeal with the leave of Court first had and obtained to do so and that therefore the issue as raised and argued by the appellant in his brief is incompetent and not valid for this Court’s consideration. The law that fresh or new issues cannot be raised in an appeal without the leave of Court first had or obtained to do so is restated by an unending line of judicial decisions. Examples of such decisions include Gabriel v. The State (1989) All NLR 457 or (1989) LPELR ? 1298 (SC), Nwachukwu v State (2007) 7 SC 1 and Oseni v Bajulu (2009) LPELR 2796 (SC).
The arguments of Learned Counsel for the appellant on the need for evidence of finger print on the bag and its contents is incompetent and void for the further reason that they are not based on or related to any ground of this appeal or issue for determination in the appellant?s brief. All arguments in an appeal must be based or related to an issue for determination and a ground of the appeal. Arguments in an appeal that are not based on an issue for determination and any ground in the appeal are incompetent and not valid for consideration. See Kala v. Potiskum (1998) 1-2 SC 132.
On the whole, issues 1 and 2 in the appellant?s brief are resolved in favour of the respondent.
This appeal fails as it lacks merit. It is accordingly dismissed. The judgment of the Federal High Court delivered on 31-3-2017 in Charge No. FHC/MN/CR/30/2013 by A.I. Chikere J is hereby affirmed and upheld.
TINUADE AKOMOLAFE-WILSON J.C.A.: I had the preview of the lead judgment of my learned brother, EMMANUEL AKOMAYE AGIM, JCA. I am in agreement with his reasoning and conclusion and orders reached therein.
PETER OLABISI IGE, J.C.A.: I agree.
Appearances:
Suleiman Yakubu, Esq. with him, A.A. Abdulazeez, Esq.For Appellant(s)
A.K. Alilu, Esq. with him, Kehinde Adesola Fagbemi, Esq., Joel Toluwalope, Esq.For Respondent(s)
