SUNDAY AZOGOR v. THE STATE
(2014)LCN/7602(CA)
In The Court of Appeal of Nigeria
On Friday, the 5th day of December, 2014
CA/I/159/2011
RATIO
CRIMINAL LAW: UNLAWFUL POSSESSION OF FIREARMS; THE ESSENTIAL ELEMENT OF THE UNLAWFUL POSSESSION OF FIREARMS
Section 2 (3) of the Robbery and Firearms (Special Provisions) Act provides:
“3. Any person found in any public place in possession of any firearms whether real or imitation and in circumstances reasonably indicating that the possession of the firearms is with intent to the immediate or eventual commission by that person or any other person of any offence under Section (1) of this Act or under the foregoing provisions of this section shall upon conviction under this Act be sentenced to imprisonment for not less than fourteen years but not more than twenty years.”
The essential elements of the above offence that must be proved are that –
(1) A person is found in a public place with a firearm;
(2) The possession of the firearm by that person is reasonably indicative that he or another person intended to carry out an offence under Section 2 of the Act. per. OBIETONBARA DANIEL-KALIO, J.C.A.
COURT: VARYING A JUDGMENT OR ORDER; WHEN IS A JUDGMENT OR ORDER NOT VARIED
It is the law that a judgment or order shall not be varied when it correctly represents what the court decided nor shall the operative and substantial part of it be varied and a different form substituted. See per Aniagolu JSC in the case of Chukwuka vs. Ezulike (1986) 5 NWLR part 45 p.892. See also Ibe vs. Onuora (1996) 9 NWLR part 474 p.624; Alao vs. ACB Ltd. (2000) 9 NWLR part 672 p.264. per. OBIETONBARA DANIEL-KALIO, J.C.A.
EVIDENCE: CONFESSIONAL STATEMENT; WHETHER CONFESSIONAL STATEMENTS NEED TO BE CORROBORATED
It is desirable to have outside the confessional statements, some corroborative evidence no matter how slight which make it probable that the confession is true and correct. See Nwachukwu vs. State (2007) 17 NWLR part 1062 p.31. Our courts are not generally disposed to act on a confession without testing its truth. This is so because by a confession, an accused is owning up to his crime and saying “yes”, I did it. Since it must be admitted, many people are not quick to showing remorse and regret by freely confessing to crimes that they commit but would rather clam-up and allow the prosecution go through the rigour of proving its case beyond reasonable doubt without the help of their confession, the law requires corroborative evidence of a confession just to make assurance of the truth of the confession doubly sure. per. OBIETONBARA DANIEL-KALIO, J.C.A.
JUSTICES
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
OBIETONBARA DANIEL-KALIO Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
Between
SUNDAY AZOGOR Appellant(s)
AND
THE STATE Respondent(s)
OBIETONBARA DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment): This appeal is in respect of a Criminal matter in which the appellant Sunday Azogor was convicted and sentenced for unlawful possession of firearms. At the trial in the lower court, the appellant initially faced a five count charge which was later amended to a six count charge. Count 1 was conspiracy to commit Armed Robbery contrary to Section 6(b) and punishable under Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. R.11, Laws of the Federation 2004; Count 2 was for Armed Robbery contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act; Count 3 was also for Armed Robbery; same for counts 4 and 5; count 6 was for unlawful possession of firearms contrary to section 2(3) of the Robbery and Firearms Act (Special Provisions Act).
The offences with which the appellant was charged were as stated in the particulars of offence in the Information filed against him and others at large on or about the 21st day of May 2004 after Odogbolu Junction along Sagamu/Benin Expressway, Odogbolu in the Ijebu ode Judicial Division of the Ogun State High Court.
As noted by the trial judge in his judgment at page 75 of the Record of Appeal, the prosecution conceded that there was no evidence to sustain counts 2-5 which alleged armed robbery. The trial judge therefore dismissed the charges in respect of those counts and also discharged and acquitted the appellant in respect of the said charges. The charge of conspiracy was also held as not proved. However, as earlier noted, the trial court convicted and sentenced the appellant for unlawful possession of firearms. The sentence was 14 years imprisonment.
Dissatisfied with the conviction and sentence, the appellant appealed against same on three grounds as shown in the Notice of Appeal filed on 15/4/2011. The grounds and particulars of the grounds are as follows:
1. The learned trial judge erred in law when he convicted the appellant for the offence of unlawful possession of firearms when the prosecution has failed to prove the commission of the crime beyond reasonable doubt and thereby came to a decision which has occasioned a grave miscarriage of justice.
Particulars
i. The prosecution failed to call Inspector Linus Ojinkeye the escort of the alleged luxurious bus that was attacked and Simon Nnebo, the driver of the bus, both of whom were eye witnesses to the alleged robbery attack.
ii. Neither the Inspector Linus Ojinkeye nor any member of the ‘A’ Police Patrol team from Odogbolu Division and also Obalende Division who confronted and had encounters with the armed robbers was called as witness by the prosecution notwithstanding the fact that they were both vital witnesses to the
prosecution’s case.
iii. None of the passengers of the bus that was robbed and who made statements to the police was either called as witness or had his statement to the police tendered.
iv. The Statement of John Abu whom the police claimed that the appellant led them to arrest, was not tendered at the trial.
v. None of the persons from whom the weapons recovered were seized by the armed robbers identified any of the alleged weapons as theirs.
vi. There were two robbery incidents on 22nd May, 2004 and the prosecution could not fix the appellant with any of the robbery attacks.
2. The learned trial judge erred in law in convicting the appellant for the offence of unlawful possession of firearms by relying solely on the confessional statement of the appellant.
Particulars
i. The confessional statement of the appellant was not voluntarily made.
ii. The evidence of the appellant cast doubts on the voluntariness and veracity of the confessional statement of the appellant and rendered it improbable.
iii. The appellant denied making the statement and retracted it in his evidence.
iv. There was no other evidence outside the alleged confessional statement to prove the commission of the crime by the appellant.
3. The Learned trial judge erred in law in convicting the appellant for the offence of unlawful possession of firearms without the prosecution proving the essential ingredients of the offence to establish the guilt of the appellant.
Particulars
i. The appellant was not in possession of the firearms.
ii. It was not established that the appellant had intention to commit armed robbery with the firearms.
iii. The weapons allegedly recovered by the PW2 from the bush were said to be the weapons seized by the robbers from the police who had confronted and had encounter with them.
iv. The appellant alone could not have taken all the weapons from the scene of the alleged crime where he was alleged to have escaped.
Learned Counsel of both the Appellant and Respondent formulated only one issue each for the determination of this appeal. According to the appellant’s learned counsel Adebayo Mutalubi Ojo Esq., the sole issue is:
“Whether on the totality of the pieces of evidence before the trial court, the guilt of the accused/appellant was proved beyond reasonable doubt. (This issue anchored on all three grounds of appeal)”
The sole issue formulated by the Respondent’s Learned Counsel J. K. Omotosho Esq. the Deputy Director Public Prosecution in the Ogun State Ministry of Justice is:
“Whether the respondent has established the charge against the appellant beyond reasonable doubt.”
As can be seen from the formulated issues, learned counsel on both sides identified the same issue for determination but couched it according to their palate. The issue then as both counsel seem to agree is whether the charge against the appellant was proved beyond reasonable doubt.
Appellant’s Learned Counsel in his Brief of Argument adopted and relied upon on 6/11/14 referred us to Section 36(5) of the 1999 Constitution of Nigeria. Under that provision of the Constitution, an accused person is presumed innocent until proved guilty. The cases of Nwaturyocha vs. The State (2011) 6 NWLR part 1242 p.170 at 188 and Emeka vs. The State (2001) 14 NWLR part 734 p.666 at 680 were also cited in support of the submission.
Learned Counsel referred us to Section 2(3) of the Robbery and Firearms (Special provisions) Act Cap. R.11, Laws of the Federation of Nigeria, 2004 and the count of unlawful possession of firearms against the appellant and submitted that when the two are considered together the court will see that the count of unlawful possession was not properly couched in that the elements of the offence could not be made out.
While admitting that the learned trial judge correctly identified the essential elements of the offence of unlawful possession of firearms under Section 2(3) of the Robbery and Firearms (Special Provisions) Act Appellant’s Learned Counsel submitted that same were not proved by the prosecution. Instead learned counsel contended, the prosecution relied heavily on alleged confessional statements of the appellant and the evidence of PW1 and PW2. Turning to certain portions of the evidence of the said PW1 and PW2 and juxtaposing same with the evidence of DW1, learned Counsel submitted that there were contradictions in the evidence of PW1 and PW2 which were never resolved, particularly as to the authenticity of items allegedly recovered in the bush. Learned Counsel submitted that the recovered items, that is to say Exhibit P1 – P8 were of doubtful origin considering the unresolved contradictions in the evidence of PW1 and PW2. Learned Counsel submitted that there was no evidence showing that Exhibits 5 and 6 the empty shells of ammunition recovered in the bush were fired from the guns also recovered in the bush or capable of being fired by those guns. The failure to link the empty shells to the guns it was contended, is fatal to the case of the prosecution.
Returning to the confessional statements, Exhibits P11- P13, learned counsel submitted that the evidence of the appellant during trial within trial that he was tortured was never controverted and should have been acted upon by the trial judge. He urged that the confessional statements were inadmissible having offended Section 28 of the Evidence Act and should be expunged by this court.
With particular reference to the appellant’s confessional statement exhibits 12 and 13, learned counsel submitted that the appellant’s signatures in the said exhibits were disputed. Without making any finding regarding the disputed signatures, it was submitted that the trial judge relied on the exhibits. It was contended that the trial judge should not have done so but should have in his judgment, indicated his findings on the disputed signatures. The cases of Obue vs. State (1976) 2 SC p.141 and Garba Adamu vs. State (1986) 2 NWLR part 22 p.284 were cited in support.
Learned Counsel submitted that the fact that an accused person admitted in a confessional statement that he committed the crime does not relieve the prosecution of its duty to prove the guilt of the accused person beyond reasonable doubt. He submitted further that the lower court is itself required to test the veracity of the confessional statement against other evidence before the court. The court failed to do that he submitted.
Learned Counsel urged that count six of the charge against the appellant was not proved beyond reasonable doubt. We were urged to allow the appeal, set aside the judgment of the lower court and discharge and acquit the appellant.
J.K. Omotosho Esq. the Learned Deputy Director of Public Prosecutions in his submissions contained in the Respondent’s Brief of Argument, contended that Exhibit 12, one of the confessional statements of the appellant, was admitted in evidence without any objection. We were referred to page 54 of the Record of Appeal. It was submitted that the fact that the appellant denied making the statement while giving evidence in court will not stop the trial court from relying on it. The cases of Dibie vs. The State (2007) 7 SCM 101 and Musa vs. State (2013) 3 SCM 79 at 92 were cited in support.
With regard to another confessional statement, Exhibit 13, learned counsel argued that the appellant only objected to not having signed it but did not object to its voluntariness. We were referred to page 55 of the Record of Appeal. As for the remaining confessional statement, that is Exhibit 11, learned counsel agreed that objection to its admissibility was made. However he argued, a trial within trial was conducted and the trial court was satisfied that the statement was made voluntarily.
Learned Counsel contended that the contents of the confessional statements Exhibits 11-13 were supported by facts outside them and that the mere fact that the appellant retracted the confessional statement at the trial would not stop the court from relying on them. The case of Dibie vs. The State (supra) was relied upon.
Learned Counsel argued that minor discrepancies between the evidence of PW1 and PW2 are not fatal to the case as they had nothing to do with the ingredients of the offence. The most important thing learned counsel submitted, is that the firearms were recovered when the appellant took the police to the bush and showed them where the firearms were kept.
In reaction to the submission of the learned counsel of the appellant that count 6 under which the appellant was convicted was not properly drafted, learned counsel submitted that even without that count, the trial court had power to convict the appellant for an offence under Section 2(3) of the Robbery and Firearms (Special Provisions) Act, being an offence that is lesser than the offence of armed robbery. Learned Counsel cited Section 179(2) of the Criminal Procedure Law of Ogun State 2006 and the case of Babalola vs. The State (1989) 7 SC part 1 p.94 at 112-113.
Learned Counsel further contended that even if count 6 against the appellant were defective, the appellant was not misled by the defect and that it is a defect that misleads that can be fatal to the case of the prosecution. We were referred to the case of Obumeselu vs. COP (1958) SCNLR p.464; Ijeoma vs. Queen (1962) 2 SCNLR 157. We were urged to dismiss the appeal and affirm the judgment of the lower court.
It will be recalled that the appellant’s learned counsel submitted that the count of unlawful possession of firearms against the appellant was not properly couched considering the provision of Section 2(3) of the Robbery and Firearms (Special Provisions) Act cap. R.11, Laws of the Federation of Nigeria. While it is true that in drawing up the charge of unlawful possession of firearms the charge did not faithfully describe the offence in the words of the legislation, I will not go as far as to say that the basic elements of the offence were not reflected in the charge. Section 2 (3) of the Robbery and Firearms (Special Provisions) Act provides:
“3. Any person found in any public place in possession of any firearms whether real or imitation and in circumstances reasonably indicating that the possession of the firearms is with intent to the immediate or eventual commission by that person or any other person of any offence under Section (1) of this Act or under the foregoing provisions of this section shall upon conviction under this Act be sentenced to imprisonment for not less than fourteen years but not more than twenty years.”
The essential elements of the above offence that must be proved are that –
(1) A person is found in a public place with a firearm;
(2) The possession of the firearm by that person is reasonably indicative that he or another person intended to carry out an offence under Section 2 of the Act.
Let me note here that possession in the above provision does not necessarily mean actual possession. The U.S. Supreme Court rightly stated in one case that “there is no word more ambiguous in its meaning than possession.” See National Safe and Deposit Co. vs. Stead, 232 US. 58, 34 S. ct 209. 58 L.Ed. 504 (1914). “Possession” in the above stated section of the Robbery and Firearms (Special Provisions) Act can also refer to constructive possession. As explained by Wex Legal Dictionary “Generally, for a court to find that a person had constructive possession of an object, the person must have had knowledge of the object as well as the ability to control it.” In my humble view, the statement of offence and particulars of offence sufficiently described the offence stated in Section 2(3) of the Robbery and Firearms Act. The Appellant could not have been perplexed. The said statement of offence and particulars of offence read as follows:
STATEMENT OF OFFENCE
UNLAWFUL POSSESSION OF FIREARMS contrary to Section 2(3) of the Robbery and Firearms Act Laws of the Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE
SUNDAY AZOGOR (m) and others now at large on or about 21st day of May 2004 after Odogbolu Junction along Sagamu/Benin Expressway, Odogbolu, in the Ijebu-Ode Judicial Division were in possession of two G.3 Riffles and one locally made gun without licence.”
The two elements of public place and possession of firearms are present in the above statement of offence and particulars of offence.
There is no reason not to presume that the appellant understood clearly the offence with which he was charged. I am therefore not impressed with the argument of the appellant’s learned counsel about the charge not being properly couched.
The conviction and sentence of the appellant was based on his confessional statements. There were three such statements, namely Exhibit P.11, P.12 and P.13. Regarding exhibit P.11, appellant’s learned counsel submitted that the evidence of the appellant during a trial within trial that he was tortured was never controverted and should have been acted upon by the trial judge. We were urged that Exhibit 11 was inadmissible having offended Section 28 of the Evidence Act and should therefore be expunged from the record. Now the learned trial judge after the trial-within-trial wrote a well-considered Ruling (see at page 43 – 50 of the Record of Appeal) where he held that the statement was made voluntarily.
The finding of the learned trial judge in his Ruling that the appellant himself gave evidence that he was taken before the O.C. who asked him some questions before he signed the statement was never challenged. The finding of the trial judge that the appellant did not say that he was forced to sign the statement was also not challenged.
I therefore find no basis for the argument that the appellant’s evidence in the trial within trial that he was tortured was never controverted in view of the above unchallenged findings of the trial judge in his said Ruling. In any case, it is the law that a statement wrongly admitted as a confessional statement can, if it has no other defects, be admitted as an ordinary statement and relied upon as such as a basis for a conviction. See Gbadamosi vs. State (1992) NWLR part 266 p.465.
With regard to the other two confessional statements, that is, Exhibits 12 and 13, it will be recalled that the appellant’s learned counsel submitted that the appellant denied appending his signature to the exhibits and that the learned trial judge should have made a finding on the disputed signature in his judgment. In response, Respondent’s learned counsel it will also be recalled, contended that there was no objection to Exhibit 12 and that with regard to Exhibit 13; the appellant did not deny its voluntariness. Learned counsel of the Respondent is correct in his submission that there was no objection to the admissibility of Exhibit 12. (See at page 53-54 of the Record of Appeal). As regards, Exhibit 13, while it is true that the appellant denied signing it, clearly the learned trial judge did not brush the denial aside but considered it in a short ruling before admitting it in evidence. See at page 54 of the record of Appeal. Having considered the disputed signature and given it’s Ruling on it, the court cannot in its final judgment make a finding on that same point of dispute as argued by appellant’s learned counsel. It is the law that a judgment or order shall not be varied when it correctly represents what the court decided nor shall the operative and substantial part of it be varied and a different form substituted. See per Aniagolu JSC in the case of Chukwuka vs. Ezulike (1986) 5 NWLR part 45 p.892. See also Ibe vs. Onuora (1996) 9 NWLR part 474 p.624; Alao vs. ACB Ltd. (2000) 9 NWLR part 672 p.264.
Having found no fault in the admissibility of the three confessional statements of the appellant, it is not quite plain sailing yet. It is desirable to have outside the confessional statements, some corroborative evidence no matter how slight which make it probable that the confession is true and correct. See Nwachukwu vs. State (2007) 17 NWLR part 1062 p.31. Our courts are not generally disposed to act on a confession without testing its truth. This is so because by a confession, an accused is owning up to his crime and saying “yes”, I did it. Since it must be admitted, many people are not quick to showing remorse and regret by freely confessing to crimes that they commit but would rather clam-up and allow the prosecution go through the rigour of proving its case beyond reasonable doubt without the help of their confession, the law requires corroborative evidence of a confession just to make assurance of the truth of the confession doubly sure.
In this case, I think that the confessional statement, Exhibit 11 which shows that a commercial motorcyclist that took the appellant from where he was hiding after the robbery incident to the Union Office of the Motorcyclists where he was beaten up and later taken to a police station is corroborated by the evidence supplied by the appellant himself as Dw1 before the lower court. (See at page 57 of the Record of Appeal). In his account in court, the appellant stated that he took a ride on a motorcycle in order to look for a vulcanizer to fix the tyre of a commercial bus he was driving and along the way, ran into a crowd who beat him up until he was rescued by a policeman who advised the crowd that if they suspected him of committing a crime, he should be taken to a police station. The fact that the appellant in his confessional statement made reference to a motorcyclist, stated that he was beaten up, and also stated that he was taken to the police station and that those same elements of a motorcyclist, being beaten up, and being taken to the police station also feature in his evidence in court cannot be put down to mere coincidence. The evidence in court of the appellant corroborates his confessional statement in Exhibit 11.
Again, the confessional statement Exhibits P.11 and P.12 state that a gun seized from a police escort on the robbed bus and other guns used in the robbery operation were hidden away in the bush.
The third confessional statement, Exhibit P13 shows that the appellant took policemen to the bush where the guns were hidden and upon a search by the police, guns were recovered there. These confessional statements were corroborated by Exhibit P.10 which is a letter of the office of the Commissioner of Police Imo State addressed to the Asst. Commissioner of Police of Ogun State sending a police officer to collect rifles snatched by armed robbers from policemen in the “B” Department ‘Operation’ who were performing escort duty on a luxury bus.
The corroborative link between the confessional statements which talked about the seizure of a rifle from a policeman on escort duty on the robbed luxury bus and Exhibit P.10 which speaks of rifles seized from policemen on escort duty on a luxury bus cannot be missed.
It is clear to me therefore that the confessional statements of the appellant are corroborated by other cogent evidence. The result in my humble view is that the learned trial judge rightly convicted and sentenced the appellant having found him guilty on count 6 of the information before him. Having come to this conclusion, I find no merit in the appeal. It is hereby dismissed. The judgment of the lower court is hereby affirmed.
HARUNA SIMON TSAMMANI, J.C.A.: I had the advantage of reading in advance the judgment just delivered by my learned brother, Obietonbara Daniel-Kalio, JCA.
My learned brother has adequately and admirably analysed and resolved the issues that came up for determination in this appeal. I agree with his reasoning and conclusion thereon. Accordingly, I also find no merit in the appeal. It is accordingly dismissed.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I read in draft the lead judgment of my learned brother Obietonbara Daniel-Kalio, JCA. I agree with the reasons and conclusion articulated in the lead judgment that the appeal is devoid of any merit and deserves to be dismissed.
In support of the very comprehensive judgment I take previlege of adding my own words on the guiding principle on confessional statement that is to say that it must be direct, clear, unambiguous and positive. All the foregoing are prevalent in the confessional statement of the appellant obtained in this case and which was admitted consequent upon a valid and subsisting ruling of the trial court after conducting a trial within trial. See the cases of Akinmoju v. The State (2000) 4 SC (Pt. 1) 64, FRN v. Iweka (2011) 11-12 SC (Pt. 109), Bright v. State (2012) 1 SC (Pt.11) 47 and Adeshina v. The State (2012) 6 SC (Pt.11) 114.
It is for the foregoing and the fuller reasons in the read judgment that I also dismiss the unmeritorious appeal and abide by the consequential order affirming the judgment, conviction and sentence of the court below.
Appearances
Kazeem Gbadamosi with Ibrahim Kareem Ojo
and Mariamo Woli MissFor Appellant
AND
J. K. Omotosho (Deputy Director Public Prosecution,
Ministry of Justice Ogun State)For Respondent
