SEGUN BAMIDELE v. THE STATE
(2019)LCN/12638(CA)
In The Court of Appeal of Nigeria
On Friday, the 1st day of February, 2019
CA/IL/C.81/2018
RATIO
EVIDENCE: CONFESSIONAL STATEMENT OF AN ACCUSED PERSON
“It is trite as argued that an accused person can be convicted on his confessional statement alone. Although it is always desirable to have some evidence outside the confessional statement in further proof of the offence, the absence of such additional evidence would not necessarily prevent a Court from convicting the accused provided the statement satisfies the test of being positive, direct, unequivocal and consistent with other ascertained facts which had been proved. See FRN vs. Eweka (2013) 3NWLR (pt. 285) Ikemson vs. The State (1989) 3NWLR (pt. 110) 455, Ojegele vs. State (1988) 1 NWLR (pt. 71) 414, Asuquo vs. The State (2016) 6 SC (pt. 11) 1, Lawal vs. The State (supra) and Okashetu vs. The State (supra).” PER HAMMA AKAWU BARKA, J.C.A.
CRIMINAL LAW: BURDEN OF PROOF
“There is no argument to the established legal position that in all criminal cases, the prosecution has the bounden duty of proving the guilt of the accused person beyond reasonable doubt. The law makes provision in Section 135 (1) (2) of the Evidence Act 2011, that in criminal trials the prosecution bears the burden of proving the offence alleged against an accused person beyond reasonable doubt. This burden on the prosecution never shifts, until it is effectively and satisfactorily discharged. In the words of the Supreme Court, this is as a result of the special provision of Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999, (as amended) dealing with the presumption of innocence until proven guilty. It is the further position of the law that proof beyond reasonable doubt does not admit of plausible possibilities, rather it admits of a high degree of cogency, consistent with an equally high degree of probability. See FRN vs. Usman (2012) 8 NWLR (pt. 1301) 141, Borishade vs. FRN (2012) 18 NWLR (pt. 1332) 347.” PER HAMMA AKAWU BARKA, J.C.A.
CRIMINAL LAW: INGREDIENTS OF UNLAWFUL POSSESSION OF FIREARM
“It is the position of the law that in sustaining the offence of unlawful possession of firearm, the following ingredients must be established, namely;
1. That the accused was found in possession of firearms.
2. That the firearm (s) was within the meaning of the Act.
3. That the accused had no licence to possess the firearm. The cases of Okashetu vs. The State (2018) 6 SC (pt. 11) 155 @ 158 and State vs. Oladotun (2011) 5 SC (pt, 11) 13 cited by the appellant counsel are apposite. See also Momodu vs. The State (2008) ALL FWLR (pt. 447) 67, Abdullahi vs. FRN (2018) LPELR-44719(CA), State vs. Abiodun (2016) LPELR 43750 (CA).” PER HAMMA AKAWU BARKA, J.C.A.
CRIMINAL LAW: UNLAWFUL POSSESSION OF FIREARM
” I wish to comment on the offence of unlawful possession of firearms with which the Appellant was charged and convicted on count three of the charge. The Supreme Court in the case of Bille Vs. State (2016) 15 NWLR (pt. 1536) 363, also reported in (2016) LPELR-40832 (SC) held that possession of firearms without more is not a crime. It becomes a crime when and if the possession is “without lawful excuse”, that is without valid license issued by the appropriate authority.” PER BALKISU BELLO ALIYU J.C.A
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
BALKISU BELLO ALIYU Justice of The Court of Appeal of Nigeria
Between
SEGUN BAMIDELE Appellant(s)
AND
THE STATE Respondent(s)
HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment):
The instant appeal seeks to question the judgment of A. O. Akinpelu J of the High Court of Justice Kwara State, sitting in Ilorin and delivered on the 9th of March, 2017, whereof appellant was found guilty of three out of the four count charge preferred against him and sentenced to various terms of imprisonment and fine.
The appellant on the 19th of October, 2016 was arraigned before the trial Court on a four count amended charge which reads as follows:
COUNT ONE.
That you Segun Bamidele and three others at large on or about the 25th March, 2015 at NNPC filling station, along Ajase-Ipo road Ilorin, Kwara State within the jurisdiction of this Honourable Court conspired amongst yourselves to do an illegal act; to wit while armed with a gun you shot one Oyetoki Suleiman and you thereby committed an offence punishable under Section 97 of the Penal Code.
COUNT TWO.
That you Segun Bamidele and three others at large on or about the 25th of March, 2015 at NNPC filling station, along Ajase-IPO road Ilorin Kwara State within the jurisdiction of this Honourable Court, while armed with a gun and with the intent to kill, you shot one Oyetoki Suleiman and you thereby committed an offence punishable under Section 229 of the Penal Code.
COUNT THREE.
That you Segun Bamidele on or about 25th of March 2015 at NNPC filling station, along Ajase-Ipo road, Ilorin Kwara State, within the jurisdiction of this Honorable Court was found to be in unlawful possession of one locally made pistol and live cartridges without license and you thereby committed an offence punishable under Section 3(1) of the Robbery and Firearms (Special Provisions) Act CAP R 11 LFN 2004.
COUNT FOUR.
That you Segun Bamidele and three others now at large on or about 25th March, 2015 at NNPC filling station, along Ajase-Ipo road Ilorin within the jurisdiction of this honorable Court did belong to the membership of a secret cult/society known as ?Black Axe Confraternity? and you thereby committed an offence contrary to Section 2 of the Secret Cults and Secret Societies (Prohibition) Law of Kwara State 2016 and punishable under Section 14 of the same law.
To the four count charge read to his understanding, appellant as accused pleaded not guilty.
At the close of trial and addresses, the trial Court in a considered judgment delivered on the 9th day of March, 2017 convicted the appellant in three of the four counts charge and sentenced him to various terms of imprisonment. Dissatisfied with the judgment of the trial Court, appellant filed a notice of appeal on the 21st of June, 2018 predicated on three grounds of appeal. The record of appeal having been compiled and transmitted to this Court on the 16th of July 2018, parties proceeded to file in their respective briefs of argument. The appellants brief dated the 28th of August, 2018 was filed on the same date. On receipt of the appellants brief, respondents filed a brief on the 10th of December, 2018 duly regularized on the 14th of January, 2019. The respondents brief elicited a response by the appellants, when they filed a reply brief on the 17th of December, 2017 and consequentially deemed filed on the 14th of January, 2019. On the 14th of January, 2019 when the appeal came up for hearing, parties dutifully identified their respective briefs, and adopted same as their arguments in the appeal.
Whereas appellant urged the Court to allow the appeal and to discharge and acquit the accused person after setting aside the decision of the lower Court, respondent prayed that the appeal be dismissed and the decision of the lower Court upheld.
In the brief filed by the appellant and settled by Abiodun Dada, a sole issue was identified for resolution. It is;
Whether, having regard to the facts and circumstances of this case and the totality of the evidence adduced at the trial Court, the prosecution established and proved the offences of attempt to commit culpable homicide, unlawful possession of firearm and belonging to secret cult/society as contained in counts 2, 3 and 4 of the offences charged against the appellant and beyond reasonable doubt to warrant the conviction of the appellant and whether the conviction has not occasioned a miscarriage of justice.
In the respondents brief settled by Jimoh Adebimpe Mumini, the learned Director of Public Prosecution Kwara State, raised a preliminary objection embedded in the brief at paragraph 3.0 of page 2 of the brief and argued at paragraphs 3.1 – 4.4, from pages 2 – 3 of the brief. In the alternative, the learned DPP adopted the issue framed by the appellant in the resolution of the appeal.
PRELIMINARY OBJECTION.
The objection by the respondent is founded on the ground that the appeal is incompetent for gross violation of the provisions of Section 25(2)(b) of the Court of Appeal Act and therefore liable to be struck out. It was the argument of learned counsel that the judgment of the trial Court having been delivered on the 9th of March, 2017, and the notice of appeal filed on the 21st of June, 2018, a period more than the ninety days allowed by law, the provisions of Section 25 (2) (b) of the Court of Appeal Act was breached. This is more so when the leave of this Court was not sought and obtained as required by law. He contended that where an appeal is not filed as permitted by law, a condition precedent to the exercise of the Court?s jurisdiction is wanting, the consequence of which is that the appeal is liable to be struck out.
The short reply to the respondents preliminary objection by the appellant can be seen at paragraph 2.0 – 2.3 of the appellants reply brief filed on the 17th December, 2018.
Learned counsel posits that the preliminary objection is a non-issue, because appellant on the 26th of April, 2018, sought for extension of time within which to appeal, which application was granted on the 12th of June, 2018. While praying that the preliminary objection be dismissed, counsel submitted that all the cases cited by the respondent on the issue are inapplicable.
A solemn and careful examination of the record showed that appellants indeed applied for extension of time within which to appeal which application was granted on the stated 12th of June, 2018. This no doubt satisfied the provisions of Section 25 (2) (b) of the Court of Appeal Act 2004. This being so, the cases of Alor vs. Ngene (2007) 17 NWLR (pt. 1062) 163, Chief Etetes Owoh & Ors vs. Chief Kingston U Asuk & Anor (2008) LPELR-2853 (SC), and APGA vs. PDP & Ors (2003) LPELR-7200 (CA) cited in support of the objection are inapplicable and the objection duly dismissed. I shall now proceed to determine the appeal based on the sole issue framed by the appellant and adopted by the respondent.
MAIN APPEAL
The learned counsel commenced arguing the lone issue by referring to the decision of the trial Court with respect to the count of conspiracy, and commended the Court for holding that the count was not proved beyond reasonable doubt.
With regards to the offence of attempt to commit culpable homicide contrary to Section 229 of the Penal Code, it was contended by learned counsel that to establish the offence, the accused person must have done any act not resulting in death with such intention and knowledge that had he by that act caused death, he would have been guilty of culpable homicide punishable with death. Submits that prosecution failed to prove beyond doubt that appellant attempted or intended in any way the death of Oyetoki Suleiman (PW 2) or any other person considering the fact that the petrol station is a public place and crowded with customers. He referred to the evidence adduced by the accused person contending that the evidence remained uncontroverted and therefore credible enough and ought to have been relied upon by the trial Court and called in support the cases of Okike vs. LPDC (2005) 15 NWLR (pt. 949) 471, Ebeinwe vs. The State (2011) 7 NWLR (pt. 1246) 402. Further submitted that the offence must fail as the evidence of the Pw 5 was speculative and not founded on proof beyond reasonable doubt. Further submits still that suspicion however well placed does not amount to prima facie evidence as held in the cases of Ohwovoriole vs. FRN (2003) ALL FWLR (pt. 141) 2024 @ 2037, Onyekwuluje vs. Benue State Government (2015) ALL FWLR (pt. 809) 842. Learned counsel argued that prosecution failed to call an independent witness to verify that it was the appellant who actually committed the offence.
Further submitting, learned counsel argued that failure by the prosecution to call the medical doctor who treated the alleged victim is fatal to the prosecution?s case. He suggests that there is the possibility that someone else might have been responsible for carrying out the unlawful attack and appellant made a scape goat. He posits that where an issue is left in serious doubt, as to make the Court speculate, the party on whom the burden of proof ultimately rests, must lose having failed to establish the full facts. He relied on this proposition on the holding in Giwa Osagie vs. Giwa Osagie (2011) ALL FWLR (pt. 363) 613.
Submitting on count three of the charge, which is that pertaining to being in unlawful possession of firearm contrary to Section 3(1) of the Robbery and Firearms (Special Provisions) Act, ingredients of the offence as established in the cases of Okashetu vs. The State (2018) 6 SC (pt. 2) 155 and The State vs. Oladotun (2011) 5 SC (pt. 11) 13, must be established. He submits that the first ingredient to be established relates to science, and as held in the case of Bello vs. COP (2018) 2 NWLR (pt. 1603) 276 requires an expert to give expert evidence on whether the rifle used was a functional rifle and not the opinion of the Court. Further relying on the cases of Ishola vs. the State (1969) NMLR 259 and Kasa vs. The State (1994) 5 NMLR (pt. 44) 269, it was submitted that the crime is such that can only be proved by expert evidence which must be tendered in support of a conviction. He sums up by saying that the evidence adduced by the prosecution was porous and full of loopholes consequent upon which the Court is not positioned to fish for evidence in support of the prosecution and relied on the case of Yakubu vs. FRN (2009) ALL FWLR (pt. 498) 387 @ 393.
With regards to the fourth count of the charge, belonging to a secret cult/society contrary to Section 14 of the Secret Cults and Secret Societies (Prohibition) Law of Kwara State 2016, it was submitted that the prosecution is duty bound to prove the allegation beyond reasonable doubt, which they failed to do. He submits that the provision of the law requires that the sign, password, code, ring, bonds, brooch, uniform, oaths, rites or symbols to be prohibited must relate or associated to cult or secret society. He referred to the testimony of the appellant to the effect that the tattoo on his left hand is a symbol of the cross, an expression of his love for his religious faith, contending that the prosecution did nothing to show that the tattoo relates or is associated to any cult or secret society. He reiterates that since cases are established by hard facts, a Court is enjoined not to deal on speculations or instincts. The mere fact that appellant has a tattoo does not translate to the fact that he is a member of a cult or secret society. He emphasized that the burden of proof in criminal trials is that of proof beyond doubt: Shehu vs. State (2010) 8 NWLR (pt. 1195) 112 @ 137.
In conclusion learned counsel argued that the prosecution having failed to establish its case beyond doubt as required by law, the sole issue ought to be resolved in its favor, and thereby allow the appeal, set aside the decision of the trial Court and to discharge and acquit the appellant on all the counts of the charge.
In his response to the arguments proffered on the sole issue canvased, the learned DPP opined that the prosecution established the three counts being agitated upon by the appellant.
On whether the prosecution established the offence of attempt to commit culpable homicide contrary to Section 229 of the Penal Code, it was the argument of the state that the case of Geoffrey Ozigbo vs. COP (1976) 2 SC 67 – 74 exposed the realm of attempt to commit an offence, where it stated that:
‘To constitute an attempt, the act must be immediately connected with the commission of the particular offence charged and must be more than mere preparation for the offence.’
Learned counsel referred to the ingredients of the offence highlighted in the penal code, and the decision of Pemu JCA inMohammed vs. The State (2012) ALL FWLR (pt. 621) 1564 @ 1583, and submitted that a community reading of the pieces of evidence adduced by PW2 – PW5, facts emanated which revealed that a clear case of attempted murder was established by the prosecution.
With regards to the count on illegal possession of firearms contrary to Section 3(1) of the Robbery and Firearms (Special Provisions) Act CAP R 11, Laws of the Federation of Nigeria 2004, referred to the case of Momodu vs. The State (2008) ALL FWLR (pt. 447) 67 establishing the ingredients of the offence. He submits that a community reading of the evidence adduced by the PW 2, PW 3 PW 4 and PW 5 undisputable facts emerged establishing the alleged offence. He argued that the case of Bello vs. COP (supra) relied upon by the appellant is not applicable. He referred to the finding of the trial Court at page 110 of the record to the effect that the finding is unassailable.
On the appellants argument that his conviction on the 4th count of the charge bordering on cultism being based on conjecture and suspicion, learned counsel referred to the holding of the lower Court at page 111 of the record contending that the confessional statement of the accused person settled the issue.
The case of Gira vs. The State (1996) 4 SCN 94 was relied on. He referred to exhibits 4 and 5 being the confessional statements of the appellant and submits that having admitted the offences against him, the prosecution by the authority of Mustapha Mohammed vs. The State suit No. SC/84/2006 of the 20th of April 2007 per Niki Tobi JSC, is not expected to prove any other ingredient. It is his conclusion that the issue be resolved against the appellant and the appeal dismissed.
Replying on points of law raised in the respondents brief, it was argued that contrary to the respondents submissions prosecution failed and or neglected to lead evidence demonstrating appellants intention to commit murder. He argued that the cases cited by the respondent on the issue are not apposite, and the presence of the appellant at the scene does not amount to proof of his guilt. With regards to the allegation of illegal possession of firearms, learned counsel maintained that no expert was called on the issue, hence all the arguments on same of no moment. On the issue of cultism and the finding of the lower Court, counsel is of the view that the alleged confession needs corroborative evidence to ground a conviction.
RESOLUTION.
There is no argument to the established legal position that in all criminal cases, the prosecution has the bounden duty of proving the guilt of the accused person beyond reasonable doubt. The law makes provision in Section 135 (1) (2) of the Evidence Act 2011, that in criminal trials the prosecution bears the burden of proving the offence alleged against an accused person beyond reasonable doubt. This burden on the prosecution never shifts, until it is effectively and satisfactorily discharged. In the words of the Supreme Court, this is as a result of the special provision of Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999, (as amended) dealing with the presumption of innocence until proven guilty.
It is the further position of the law that proof beyond reasonable doubt does not admit of plausible possibilities, rather it admits of a high degree of cogency, consistent with an equally high degree of probability. See FRN vs. Usman (2012) 8 NWLR (pt. 1301) 141, Borishade vs. FRN (2012) 18 NWLR (pt. 1332) 347.
On the contention that the prosecution failed to prove the offence of attempted murder contrary to Section 229 of the Penal Code, it is common ground that the offence is said to be established where a person does any act not resulting in death with such intention or knowledge and in such circumstance that if he by that act caused death, would be guilty of culpable homicide punishable with death, … Shall be punished with imprisonment for life… I may add as stated by Rhodes?Vivour JSC in Lukmon Osetola & Anor vs. The State (2012) LPELR-9348(SC), that when a person intending to commit an offence, begins to put his intention into execution by means adapted to its fulfillment, and manifest his intention to such an extent as to commit the offence, he is said to attempt to commit the offence.
The allegation against the appellant was that on the stated fateful date, being the 23rd of March, 2016, appellant while armed with a local pistol, shot PW 2 on his thigh. The evidence of the PW 2, the victim of the crime and PW 3 who is an eye witness and that of PW 4 who saved the appellant from being mobbed, all attest to the fact that appellant brought out a pistol from his pocket and shot PW 2 on the thigh.
Learned counsel for the appellant listed the ingredients necessary to establish the offence of attempted culpable homicide contrary to Section 229 of the Penal Code, as:
a. That the death of a human being was attempted.
b. that such attempt was the act of the accused;
c. that such act was done with the intention of causing death or that the accused knew or had reason to know that death would be the probable cause and not only the likely consequence of the act or of any bodily injury which the act was intended to cause.
What to look for in determining whether the accused person intended to commit culpable homicide includes the nature of the weapon used, the part of the body of the victim to which the weapon was applied and the extent of the proximity of the victim with the person applying the weapon. See Nojeem Akinosi vs. The State (2017) LPELR-42384(CA) per Tsammani JCA. See also Mohammed vs. The State (2012) ALL FWLR (pt. 621) 1564.
The appellant in his defense raised what can be described as an alibi. At pages 93 of the record, appellant painted the picture that he was only informed at the police station that someone was shot by his friends, and goes on to state that he was arrested at home and not at the scene of the incident. In an earlier decision, I had cause to state that:
‘To make matters worse for the appellant, PW 2, the victim of the offence vividly recollected seeing the appellant at the scene, and the part played by him. The position of law is that where the prosecution adduces evidence sufficient and acceptable fixing the accused person at the scene of crime at the material time, his alibi stands demolished and renders that defense ineffective’. See Akeem Afolabi vs. The State (2018) LPELR 44306 (CA) per Barka JCA.
A calm consideration of the evidence adduced before the trial Court shows that the alleged offence was indeed the handiwork of the appellant. As earlier stated, Pw2, PW3 and PW4 all gave evidence fixing the appellant at the scene of the crime at the material time and that he was in fact the perpetrator of the alleged crime. Furthermore appellant in his confessional statement exhibits 4 and 5 admitted having committed the crime. From the foregoing state of evidence before the lower Court, it is apparent that the defense of alibi is not available to him. Indeed the lower Court dutifully considered the defense particularly at pages 109 – 110 of the record in coming to the conclusion that appellant was the culprit who committed the offence. The Court reasoned also on the issue that appellant failed to raise the defense of alibi timeously to allow the prosecution investigate same. I totally agree with the lower Court and hold that the defense of alibi had been rendered unavailable to the appellant having been fixed at the scene of crime and the appellant having failed to raise the issue timeously. See Osuagwu vs. The State (2013) 1-2 SC 37, Ude vs. The State (2016) 5-6 SC 1 @ 32, Wisdom vs. The State (2017) 14 NWLR (pt. 1586) 446 @ 464, and Ogogovie vs. The State (2016) 12 NWLR (pt. 1527) 468 @ 511 amongst many others.
Learned counsel for the appellant also dwelt at length questioning the aspect of the PW5’s evidence, concluding that the conviction of the appellant was borne out of suspicion and therefore doubtful citing a host of cases in that regard. It is no doubt that the cases cited represent the position of the law with respect to the cases upon which they were decided, but must say unfortunately learned counsel derailed in his argument especially and having regards to the evidence adduced.
It was my lord Pats ‘ Acholonu JSC in Adava vs. The State NCC 2, 191 @ 203 – 204 while dissenting to the majority decision of that Court, that opined that:
‘it is trite law that in a case based on eye witness account of seeing someone gunning down another without any form of provocation, or purposefully inflicting grievous bodily harm to another, such a perpetrator of a felony intends and as decipherable from the act of the shooting a victim in the stomach, demonstrate an uncanny recklessness of the life of a bystander. The import or intended motive is as in this case to cause incalculable ham or havoc or even death which to the perpetrators matters so little, in other words, the life of the victim is worth nothing than a candle in the wind”.
Where all the uncontroverted facts adduced by the prosecution are taken in to consideration, it is difficult to accept the submission of the learned appellant’s counsel that his conviction was premised on suspicion, sentiment or speculation. It is easily deducible from the records as posited that one Oyetoki Sulaiman, the PW 2 was shot in his left thigh on the 25th of May, 2016. The shooting of the PW 2 was caused by a gun, identified as exhibit 1A, and that the appellant was responsible for firing the said gun. I do not understand the learned counsel’s argument on the requirement of a further corroborative evidence. More so when the appellant on the strength of his confession admitted committing the offence. I accept that this count of the charge was proved beyond doubt and the trial Court right to have convicted appellant on same.
There is the other issue pertaining to the third count of the charge, alleging that the count of being in unlawful possession of firearm contrary to Section 3(1) of the Robbery and Firearms (Special Provisions) Act.
I had earlier reproduced the count of the charge under reference, and for clarity, Section 3(1) of the Robbery and Firearms (Special Provisions) Act 2004 reads:
‘Any person having a firearm in his possession or under his control in contravention of the Firearms Act or any order made thereunder shall be guilty of an offence under this Act and shall upon conviction under this Act be sentenced to a fine of twenty thousand Naira or to imprisonment for a period of not less than ten years, or to both’.
It is the position of the law that in sustaining the offence of unlawful possession of firearm, the following ingredients must be established, namely;
1. That the accused was found in possession of firearms.
2. That the firearm (s) was within the meaning of the Act.
3. That the accused had no licence to possess the firearm. The cases of Okashetu vs. The State (2018) 6 SC (pt. 11) 155 @ 158 and State vs. Oladotun (2011) 5 SC (pt, 11) 13 cited by the appellant counsel are apposite. See also Momodu vs. The State (2008) ALL FWLR (pt. 447) 67, Abdullahi vs. FRN (2018) LPELR-44719(CA), State vs. Abiodun (2016) LPELR 43750 (CA).
In moving the Court to hold that the count of the charge had not been proved, learned counsel posits that the 1st ingredient of the charge relates to science and can only be proved by an expert. He leaned heavily on the case of Bello vs. COP (supra). and Sunmola Ishola vs. The State (1969) NMLR 259 and Kasa vs. The State (1994) 5 NWLR (pt. 44) 269 in that regard.
The trial Court on the issue observed that:
‘The prosecution tendered exhibits 1A, 1B, and 2 as the items recovered from the accused person at the locus in quo. It is the evidence of the PW2, PW3 and PW4 that the gun and ammunition were recovered from the accused person. PW2 is a living witness and the victim of the use of the firearm with an evident left thigh wound which confirms that the gun recovered from the accused is capable of discharging pellets and therefore within the meaning of firearms defined under the firearms act. The testimony of the PW5 the IPO, corroborates this fact. He testified that upon examination of exhibit 1A and by virtue of his training he knows that the gun was capable of being used for the purpose of which it was put on the day in issue. Exhibit 1B is the expended cartridge still enclosed in the locally made pistol exhibit 1A which was recovered from the accused. In exhibit 4 the accused person confessed that he left the station and returned with a locally made pistol loaded with cartridge which he shot and same met one of the staff of the filling station. He confessed that he also had three cartridges out of which he shot one and the remaining two were recovered from him after he shot. He also knew that having the gun in his possession was illegal’.
What further evidence does the appellant need in establishing the fact that the gun exhibit 1A was recovered from him, and that exhibit 1A met the definition of what is referred to as a firearm. Sufficiently, the word firearm as defined under the act includes any canon, gun, rifle, carbine, machine gun, cap gun, flint-lock gun, revolver, pistol, explosive or ammunition or other firearm whether whole or in detached pieces. See Kolawole vs. The State (2012) LPELR ? 9241(CA), Kayode vs. The State (2012) 11 NWLR (pt. 1312) 523. From the above definition, a locally made pistol as in exhibit 1A is a lethal weapon, and does not need an expert to say so, as it is intrinsic in the act. See State vs. Olatunji (2003) 2-3 SC 85. Learned counsel therefore missed the ball rather concentrating on the opponents legs, more so, when evidence abound as to the use exhibit 1A was put to, the resultant effect of its use and the clear admission by the appellant that what he possessed and in fact used was a locally made pistol.
The learned and erudite jurist, Acholonu JSC, must have been troubled by circumstances such as this when he stated in the case of Adava vs. State (supra) @ 203, that;
‘When law and justice are subjected to abstract reasoning or reduced to mere fantasies that they are removed from the realm of realities, then the growth of jurisprudence is stunted and we may unwittingly use old worn out methods, clich and illogicality to confront a problem of the present time’.
It is baffling to me always when arguments are made to the effect that a sergeant in the Nigerian Police Force lacks the qualification and the ability to testify as to what is a gun. This is mere fantasy indeed, and I am not enthused by that position
On the final ingredient which is, whether appellant was licensed to hold exhibit 1A, it is the position of the law, that even though it is the duty of the prosecution to prove its case throughout the case, and accused presumed innocent throughout, the case of Nwosu vs. Board of Customs & Excise (1988) NWLR (pt. 93) 225, placing reliance on the case of Regina vs. Edwards (1974) AER 1085, illustrated the cases in which the onus of the proof of facts within an accused persons peculiar knowledge would apply. This the appellant did by asserting in exhibit 4, his confessional statement that his possession of exhibit 1A was illegal. The prosecution need not bother itself further. I am unable to agree with the appellant’s counsel that the three conditions were not established. I rather hold the view that the case of Bello vs. COP (supra) is distinguishable from the present case, and the learned counsel for the respondent and the lower Court right in coming to the conclusion that appellant unlawfully had in his possession exhibit 1A, which is a firearm without being licensed.
Finally with regard to the 4th count of the charge, which is whether the prosecution proved that appellant belongs to or is a member of a secret cult or secret society in contravention of Section 14 of the Secret Cults and Secret Societies (Prohibition) Law of Kwara State 2016, which provides that:
‘Any student, person or member of a secret cult or society in possession of firearms or any dangerous weapon shall be so charged, tried and punished under the law applicable laws of the state.’
With regards to the said count, the lower Court concluded that:
“To prove the offence against the accused, the prosecution places reliance in particular on exhibit 5. It is trite that a confessional statement that is direct, positive and unequivocal is sufficient to ground a conviction”.
I have carefully examined the contents of exhibit 5, the accused made a categorical confession as follows: “That me and the said Friday belong to Black Axe confraternity, the law is settled that there is no evidence stronger than a person’s own admission or confession…”
It is trite as argued that an accused person can be convicted on his confessional statement alone. Although it is always desirable to have some evidence outside the confessional statement in further proof of the offence, the absence of such additional evidence would not necessarily prevent a Court from convicting the accused provided the statement satisfies the test of being positive, direct, unequivocal and consistent with other ascertained facts which had been proved. See FRN vs. Eweka (2013) 3NWLR (pt. 285) Ikemson vs. The State (1989) 3NWLR (pt. 110) 455, Ojegele vs. State (1988) 1 NWLR (pt. 71) 414, Asuquo vs. The State (2016) 6 SC (pt. 11) 1, Lawal vs. The State (supra) and Okashetu vs. The State (supra).
The admissibility and truth of the statement having been settled by the lower Court, and properly admitted in evidence is satisfactory evidence upon which the Court can act. See Akpan vs. The State (1986) 3 NWLR (pt. 27) 225, Ogoala vs. The State (1991) 2NWLR (pt. 175) 509.
I have carefully scrutinized the statement of the accused person (Exhibit 5), where read along with other pieces of evidence established, leaves me in no doubt that the finding of the trial Court in arriving at the conclusion that appellant’s guilt with respect to count four was established.
The inevitable conclusion from all the foregoing deductions made is that the sole issue ought to be and it is hereby resolved against the appellant.
Having resolved the sole issue against the appellant, the appeal is adjudged as lacking in merit and deserving of a dismissal, and accordingly the appeal is dismissed by me.
The judgment of A.O. Akinpelu J. delivered on the 9th day of March, 2017 convicting and sentencing the appellant to an aggregate term of ten years and N50, 000.00 fine is hereby affirmed.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I have had a cause to critically, albeit dispassionately, peruse the submissions of the learned counsel contained in the respective briefs thereof. Hence, having equally read the record of appeal, I cannot but unhesitatingly concur with the reasoning and conclusion, ably reached by my learned brother Barka JCA in the Judgment just delivered, to the conclusive effect that the instant appeal is grossly lacking in merits. Accordingly, having adopted the reasoning and conclusion in question as mine, I too hereby dismiss the appeal and affirm the conviction and sentence passed upon the Appellant by the Kwara State High Court on March 9, 2017 in charge NO. KWS/36C/2016
BALKISU BELLO ALIYU, J.C.A.: I had the opportunity to read in draft the judgment just delivered by my learned brother HAMMA AKAWU BARKA, JCA. I also find no merit in the preliminary objection raised by the Respondent and I dismiss it. On the main appeal, I agree with the reasoning in the resolution of the issue that arose for determination in this appeal and I adopt same as mine in dismissing the appeal in its entirety. I wish to comment on the offence of unlawful possession of firearms with which the Appellant was charged and convicted on count three of the charge. The Supreme Court in the case of Bille Vs. State (2016) 15 NWLR (pt. 1536) 363, also reported in (2016) LPELR-40832 (SC) held that possession of firearms without more is not a crime. It becomes a crime when and if the possession is “without lawful excuse”, that is without valid license issued by the appropriate authority. It further held that:
“The onus is on the accused person to justify in law his possession of the firearm by positive proof that he has license issued by the appropriate authority. In the instant case, the appellant’s contention that the onus of proof that the appellant had no licence to possess the firearm was on the prosecution is tantamount to subjecting the prosecution to proof of negative assertion. In any case, whether or not the appellant had a licence for the firearm in his possession is a matter peculiarly within his personal knowledge. Thus the failure to discharge the said onus showed that his possession of the firearm was unlawful and in contravention of Section 3(1) of the Robbery and Firearms (Special Provisions) Act …. It was enough that the prosecution said that he had no authority to possess firearm. Once that was done, the appellant had to prove the contrary.” Per Ngwuta JSC.
In this appeal, the Appellant had actually used the locally made firearm against the victim who testified at the trial and an eyewitness corroborated the victim’s testimony. The fact that the pistol fired at the victim’s thigh has proved that it was the firearm contemplated by Section 3(1) of the Robbery and Firearms Act. Thus, no expert witness was needed to establish the fact that the locally made pistol was such a firearm. With these few words of mine and for the fuller and more articulated reasoning in the lead judgment, I dismiss this appeal in its entirety, I affirm the judgment of Kwara State High Court delivered on the 9th March 2017 by Hon. Justice Akinpelu J.
Appearances:
Abiodun DadaFor Appellant(s)
J. A. Mumini (DPP) with him, S. O. Dada (CSC)For Respondent(s)
