YAKUBU v. STATE
(2021)LCN/15900(CA)
In the Court of Appeal
(GOMBE JUDICIAL DIVISION)
On Wednesday, December 22, 2021
CA/G/95C/2021
Before Our Lordships:
Jummai Hannatu Sankey Justice of the Court of Appeal
Tunde Oyebanji Awotoye Justice of the Court of Appeal
Ebiowei Tobi Justice of the Court of Appeal
Between
JULIANA YAKUBU APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO:
AN ACCUSED CAN BE CHARGED FOR A LESSER OFFENCE NOT NECESSARILY FOR THE OFFENCE HE IS CHARGED
This is more so that the law is settled that an accused person can be convicted not necessarily for the offence he is charged for but can be convicted for a lesser offence provided the offence before the Court discloses that lesser offence. See Martins vs State (2019) LPELR-48889 (SC); State vs Uzor & Anor (2020) LPELR-50599 (CA). EBIOWEI TOBI, J.C.A.
PROOF BEYOND REASONABLE DOUBT SHOULD NOT BE STRETCHED BEYOND REASONABLE LIMIT
It is not proof beyond all iota of doubt. One thing is certain is that where all the essential ingredients of the offence charged have been proved or established by the prosecution…the charge is proved beyond reasonable doubt. Proof beyond reasonable doubt should not be stretched beyond reasonable limit.
In Afolalu v. State (2010) All FWLR (Pt. 538) 812, (2010) 16 NWLR (Pt. 1220) 584, (2010) 5-7 SC (Pt. II) 93, (2010) 6-7 MJSC 187, it was held that:
Prove beyond reasonable doubt means prove to moral certainty, such prove as satisfies the judgment and conscience of a 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.
See also: Dairo v. The State (2017) 9-12 SC 119; Ikpo v. State (2016) All FWLR (Pt. 837) 619, (2016) 10 NWLR (Pt.1521) 50, (2016) 2-3 SC (Pt. III) 88; Bakare v. State (1987) 1 NWLR (Pt. 52) 579, (1987) 3 SC 1, (1987) 3 SCNJ 1.” EBIOWEI TOBI, J.C.A.
THE POSITION OF THE LAW ON A STRICT LIABILITY OFFENCE
It is not in dispute that the offence is a strict liability offence but does that mean that the fact that a person does not know the content of the bag a good defence. It does not appear so, as it seems to me that once firearms is found in the possession of a person, the person is liable. This appears really hard and tough but that is the position of the law. A strict liability offence has been stated to mean that a person is legally responsible of the consequences flowing from the activity even in the absence of fault or criminal intent on the part of the defendant. See Dismass Alu Adoon vs FRN (2021) LPELR-55065 (CA). In such a case, the prove of mens rea is not important as the prove of actus reus is sufficient. See Michael Adeyemo vs The State (2015) 4-5 SC (pt II) 112. EBIOWEI TOBI, J.C.A.
WHAT AMOUNTS TO FIREARMS AND AMMUNITIONS
The Firearms Act has defined what will amount to firearms and ammunition. In this respect, it is my considered opinion that it is not in all cases that expert witness will be needed. In the circumstance of this case, I do not see the need to call an expert to give evidence as to whether the items fall within the definition of firearm or ammunition. For instance, no Court needs an expert to give expert evidence when he sees a gun to determine in holding that it is a firearm. There is nothing technical about those in my opinion. The lower Court in the case leading to this appeal has held at pages 91-92 that the items are undoubtedly ammunitions under the law. EBIOWEI TOBI, J.C.A.
EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): The Appellant in this appeal was charged along with three other persons for the offences of Conspiracy to steal Military Weapons and being in possession of Fire Arms without licence which are offences punishable under Section 95 of the Penal Code Law of Borno State and Section 27 of the Fire Arms Act. Two of the persons charged along with them were not tried as they were absent during the trial. Consequent upon this, the Appellant amended the charge taking the names of the Military Officers involved in the conducts which culminated into the offences. In the lower Court, three persons were charged. In addition to the Appellant, who was charged as 2nd accused, Juliana Yakubu and Yakubani Paul were charged as 2nd and 3rd Accused persons respectively. The lower Court after taking the evidence and the submission of Counsel delivered its judgment on 24/11/2020 found on pages 59- 95 of the record. In the said judgment, the lower Court, presided over by His Lordship A.M. Ali of the Borno State High Court discharged and acquitted all the Accused persons for the offence of Conspiracy to steal Military Weapons under the Penal Code, as the Court found as a fact that there was no evidence beyond reasonable doubt before it to convict the Accused persons. The 3rd Accused before the lower Court was also discharged and acquitted on the second count, that is, the offence of ‘being in possession of Fire Arms without licence’. The Appellant and Juliana Yakubu were however not that lucky as they were convicted on count two and sentenced to 10 years imprisonment. This is the decision of the lower Court found specifically at page 93-94 of the record thus:
“I must say here however that there is no evidence before me against the 3rd accused person in this case linking her to the unlawful possession of exhibits A-J. The 3rd accused person is hereby discharged and acquitted on the 2nd count charge.
Now I have found from the evidence before me that the 1st and 2nd accused person were found in possession of Exhibits A-J which are firearms within the meaning of part 1 to the schedule of the Firearms Act without licence. The Prosecution charged the accused persons under Section 4 of the Firearms Act however they succeeded in proving beyond any reasonable doubt that the accused persons committed an offence contrary to Section 3 of the Firearms Act and punishable under Section 27(1)(a) of the Firearms Act. I accordingly convict the 1st and 2nd accused persons for the offence of being in unlawful possession of Firearms contrary to Sections 3 of the Penal Code Laws and punishable under Sections 27(1) of the Firearms Act”.
Naturally, the Appellant is unhappy as she would have loved to be discharged and acquitted like the 3rd accused especially when she is not the owner of the restaurant where the firearms were found and indeed the bag containing the firearms. For the Appellant, it appeared unfair, especially when from the evidence she did not know the content of the sack. It is this judgment that the Appellant is appealing against. The sister appeal to this appeal is CA/G/94c/2021. The Appellant filed a Notice of Appeal of 6 grounds on 8/12/2020. I had mentioned earlier that there is a sister appeal, the learned counsel to the Appellant applied to this Court to file a joint Appellant’s brief, this application was granted and so the Learned counsel filed a joint Appellant’s brief on 22/9/21 deemed on 28/10/21.
The fact that culminated into this appeal is not complicated, it is the application of the law to those facts that has thrown up some challenges in the case and indeed this appeal.
The case of the Appellant in the lower Court is that sometime in the month of July 2019, while she was plaiting her hair one military officer by name Emma Eshmutu who is a customer to the restaurant that she works in, came into the restaurant with a bag asking her to keep same for him which he will pick up the following day. She kept same without knowing the content. The following day, military personnel came to the restaurant beating up the Appellant in the sister case who was 1st accused in the lower Court. The bacco sack or bag was taken away by the military personnel. She made a statement to the police after her arrest. She retracted same during the hearing.
On the side of the Respondent, PW4 is the star witness. He works in the restaurant where the bag containing the firearms and ammunition was found. The restaurant belonged to Yakubani Paul, the discharged 3rd Accused at the lower Court. it is the evidence of PW4 that the Appellant and Hannatu Joseph, the Appellant in the sister appeal, stumbled on a bag which contained ammunitions which are Exhibits A-J. He showed it to the Appellant in the sister case, Hannatu Joseph who insulted him and moved the Exhibits to another room. On this discovery, he told PW5 who alerted the military authorities. The Military came to the restaurant and recovered the ammunitions. The Appellant was arrested and subsequently charged for the offence of Conspiracy to steal Military weapons and being in possession of firearm without licence.
The Appellant did not deny that the ammunitions were found in the restaurant but her case is that the bag containing the ammunitions were dropped by one Emma who asked her to keep it for him till he comes back to pick it. She did not ask or find out the content of the bag. Her evidence is different from that of the discharged 3rd accused in the lower Court who in her statement said, the Appellant called her to say that Emma brought some ammunitions and bomb for her to keep for him. This is the statement made by a co-accused, in law, it cannot be used as the basis of the conviction of the Appellant particularly when such a statement was not served on the co-accused to get his reaction. See Patrick Z. Akpobolokemi vs FRN & Ors (2018) LPELR-50726 (CA). To drive home this point, I will refer to the Supreme Court case of Alban Ajaegbo vs The State (2018) 11 NWLR (pt 1631) 484 where the Court held thus:
“Exhibit 36 was the statement of Innocent Ekeanyanwu. He died in detention before the commencement of the trial. He confessed to killing the deceased person. Furthermore, he mentioned the appellant as one of the persons who aided him in the actual act of the killing.
Now, the entries in the said statement were neither made in the appellant’s presence nor did he adopt them. Regrettably, the trial Court accepted them as the whole truth as regards what happened on the day in question. Unfortunately, the lower Court perpetuated the same error. This cannot be so. A free and voluntary confession of guilt by an accused person, whether under examination before a Magistrate or otherwise, if it is direct and positive and is duly made and satisfactorily proved, is sufficient to warrant convictions without any corroborative evidence so long as the Court is satisfied with the truth of the confession, Edet Obasa v. The State (1965) NMLR 119; Dare Jimoh v The State (2014) LPELR-22464 (SC); Yesufu v. State [1976] 6 SC 109. However, a man’s confession is only evidence against him and not against his accomplices. R v. Ajani and Ors (1936) 3 WACA 3.
In effect, the confessional statement of an accused person is not binding on a co-accused person, except the statement was adopted by the co-accused person. This must be so for where an accused person makes a confessional statement to the Police as to his participation or culpability in the crime charged, he is not confessing for his co-accused person. Thus, his confession is only evidence against him and not against the co-accused person. Aikhadueki v. State (2013) LPELR-20806 (SC); Ozaki v. State (1990) 1 NWLR (pt.124) 92; Kasa v. State [1994] 5 NWLR (pt. 344) 269, 288; The State v. James Gwangwan (2015) LPELR – 24837 (SC).
The law therefore is that the confessional statement of an accused person cannot be used against a co-accused person unless it is adopted by the said co-accused person, Ozaki v The State (supra); Suberu v The State [2010] 8 NWLR (pt. 1197) 586 . For this purpose, the adoption of the statement of an accused person which would qualify the statement to be used against a co-accused person can be by words or conduct, Alarape v. State [2001] 2 SC 114; Wakala v. The State (1991) 8 NWLR (pt. 211) 552; Evbuomwan v. Commissioner of Police (1961) WNLR 257.
The appellant, from the records, neither adopted the said entries by word nor by his conduct. Thus, Innocent Ekeanyanwu’s confession could not have been used against the appellant, as the lower Courts wrongly held Ozaki v The State (supra); Suberu v The State [2010] 8 NWLR (pt. 1197) 586 .”
The lower Court knowing that position of the law, did not use that as the basis for the conviction.
Upon her conviction, the Notice of Appeal containing 6 grounds was filed on 8/12/2021. The Appellant’s brief of argument was settled by Chief I. O. Umeh, as mentioned earlier based on the leave granted him by this Court, learned counsel filed a joint Appellant’s brief on 22/9/21 but deemed on 28/10/21. Learned counsel formulated 4 issues for determination viz:
1). Whether the learned trial Judge was right to have held that the Appellants were in possession of Exhibits A-J which they have the onus to show their license when the military officer that brought the items have immunity under Section 38 of the Firearms Act.
2). Whether the learned trial Judge was right to have admitted into evidence Exhibits A-J in the re-examination of PW1.
3). Whether the learned trial Judge was right to have held that the nature of exhibits A-J were not in doubt, when there was no expert evidence to explain such to the trial Judge.
4). Whether the learned trial Judge was right to have convicted the appellants in respect of an offence of strict liability inspite of several shortcomings that characterize the case of the respondent at the trial.
On issue 1, learned counsel submitted that the trial Judge was wrong in its finding and conclusion. This submission is based on the premise that in construing Sections 3 and 27 (1) (a) of the Firearms Law, the Appellant cannot be said to be in possession of the ammunitions as the definition of ‘possession’ under the law connotes ownership to the exclusion of others and that the word ‘or’ in Section 3 of the Firearm Law should be interpreted conjunctively. The Appellant cannot be said to be in possession when particularly she did not know the content of the bag. He referred to Eze Vs. The State (1985)3NWLR P.409 at 438 para D-E; Overseas Construction Limited vs Creek Enterprises Ltd (1985) 3 NWLR (pt 13) 407; Izedonmwen vs UBN Plc (2012) NWLR (pt 1295) 1; Olaleye-Ote vs Babalola (2012) 6 NWLR (pt 1297) 574. The Black’s Law Dictionary 10th Edition page 1351.
It is the further submission of counsel that all the personnel of the restaurant were in temporary innocent possession whereas the person exercising dominion over the ammunitions to the exclusion of intruders still remains Emma Eshmutu and therefore, the inability of the lower Court to consider the argument on the immunity of the military officers under the Firearms Act which should ordinarily benefit the Appellant, works against the judgment as it created a miscarriage of justice.
Learned Counsel answered issue 2 in the negative in submitting that due process was not adhered to in tendering Exhibits A-J and therefore the exhibits are inadmissible. It was wrong to admit these Exhibits via re-examination referring to Olayinka vs The State (2007) 9 NWLR (pt 1040) 561. The purpose of re-examination, counsel submitted does not accommodate a situation of tendering document but rather it is for the purpose of clarifying issues raised during the cross-examination. He referred to Okuleye vs. Adesanya & 1 Or (2014) 12 NWLR (pt 1422); Opeke vs The State (2021) 1 NWLR (pt 1758) 570. It is further submitted by counsel that the subject of front-loading which the lower Court referred to is not applicable here as that deals with civil matters while the case here is a criminal case. He referred to Alanamu vs FRN (2020) 4 NWLR (pt 1713) 19.
On issue 3, it is the submission of counsel that, Exhibits A-J are not firearms within the definition of the law and the inability of the Respondent to call an expert to determine whether they are firearms is damaging to the case of the Respondent and the decision of the Court. The issue of what is an ammunition and whether Exhibits A-J are firearms within the law can only be determined by experts. In the absence of such expert evidence the decision of the lower Court is based on speculation.
On the final issue, being issue 4, it is the firm submission of learned counsel that in the light of the many gaps in the case of the Respondent, the conviction of the Appellant should not be allowed to stand in law. The failure of the Military to testify that Exhibits A-J were truly the items recovered from the restaurant and the fact that the officer who kept the Exhibits in the restaurant was not legitimately in possession of them, works against the case of the Respondent and the judgment of the lower Court. It is the final submission of Chief I.O. Umeh, counsel to the Appellant that the appeal be allowed and the judgment of the lower Court set aside.
The learned counsel for the Respondent is A. S. Kaigama Esq. Deputy Director, Public Prosecution of the Ministry of Justice, Borno State. In the Respondent’s brief of 19/11/21, learned DDPP adopted the issues formulated by the Appellant’s counsel. He addressed the issues one after the other, starting with issue 1.
On issue 1, the Respondent’s counsel submitted that the submission by learned counsel to the Appellant that the word “or” in Section 27 (1) (a) of the Firearms Act should be read conjunctively is misleading. It is his firm submission of counsel that the Appellant cannot be in temporary innocent possession because the weapons were first and foremost concealed and buried in a hole inside their restaurant and secondly that PW4 testified to the effect that he informed the Appellant about the items he discovered, she insulted him and took them inside to a separate room. The Appellant being fully aware of the presence of Exhibits A-J in the restaurant and never took steps to report to the authorities, makes him liable as in law she is in possession. On the failure of the lower Court to consider the issue of immunity of the military officers, it is the submission of the learned DDPP that it is of no moment since the said officers were not charged in the criminal matter. The fact that the items were in the possession of the Appellant is enough to convict her since she knew of the existence of Exhibits A-J, counsel submitted relying on State vs Oladotun (2011) LPELR-3226 (SC); Lucky vs State (2021) LPELR- 53541 (CA).
On issue 2, it is submitted by learned DDPP that the lower Court was right in admitting the exhibits being documents served on the Appellant with the proof of Evidence and in the circumstance this Court should not interfere with the finding of the lower Court, referring to SHEMA & ORS V. FRN (2018) LPELR-43723(SC) p. 70-80 paras B-B; BELLO V. FRN (2018) LPELR- 44465(SC) p. 13-17 paras A-E.
The lower Court had held that by the nature of Exhibits A-J, there is no doubt that they are firearms. The purport of this according to counsel is that there is no need to call expert witness as the Court could take judicial notice of the exhibits as firearms. It is further submitted by counsel, the fact that there are experts in the security outfit which investigated the case makes it unnecessary to call expert witness or any ballistic expert to determine whether Exhibits A-J are firearms. Counsel referred to IDEN V. THE STATE (1994) 8 NWLR (PT.365) AT 719; AMAREMOR V. STATE (2014) LPELR-2259 (SC)P. 52 Paras A-E; Eromosele vs FRN (2018) LPELR-43851 (SC)
It is the final submission of counsel on this issue that the Exhibits A-J are of a notorious nature that any Judge can take judicial notice of them.
On issue 4, in addressing the challenges raised by the Appellant’s counsel, it is the submission of counsel after itemizing all the ingredient which must be proved before securing conviction, that all the ingredients of the offence has been proved and therefore the Appellant was properly convicted by the lower Court. This appeal should be dismissed and the judgment of the lower Court affirmed by this Court.
Learned counsel has finished their submission. The main thrust of this appeal is, whether the lower Court was right in convicting the Appellant for the offence of possession of firearm contrary to Section 3 of the Firearms Act, punishable under Section 27 (1)(a) of the Firearms Act. The Appellant’s counsel had submitted that the Appellant was charged under a wrong Section and therefore the conviction should be set aside. Let me briefly take this first before I address the specific issues formulated for determination. I have no difficulty in agreeing with the learned DDPP that the fact that the Appellant was charged under a wrong Section is of no moment. What is really important is whether the conviction of the Appellant is based on the evidence before the Court and further whether the offence she is convicted for is an offence known under the law. See Ogbomor vs The State (1985) I NSCC 224; Boniface Adonike vs The State (2015) LPELR-24281; Christopher David vs C.O.P, Plateau State Command (2018) LPELR-44911.
This is more so that the law is settled that an accused person can be convicted not necessarily for the offence he is charged for but can be convicted for a lesser offence provided the offence before the Court discloses that lesser offence. See Martins vs State (2019) LPELR-48889 (SC); State vs Uzor & Anor (2020) LPELR-50599 (CA).
Before I start addressing the issues, permit me to state some established legal principles of Criminal Law which will assist me to decide whether the lower Court was right or wrong in its decision. For the lower Court to convict the Appellant, what the lower Court is saying in effect, is that the Respondent proved the ingredients of the offence the Appellant is charged with beyond reasonable doubt. For the Prosecution in a criminal case to secure conviction, it must prove the ingredients of the offence beyond reasonable doubt and if there is any doubt, the doubt will be resolved in favour of the Accused. See Olayinka Afolalu vs The State (2010) 16 NWLR (pt 2010) 584; Bemdoo Mindi vs The State (2020) LPELR-52897 (SC).
The apex Court in a cloud of cases has decided that prove beyond reasonable doubt does not mean beyond all shadow of doubt but rather, prove that unequivocally pin the accused to the offence in a very high probability that he committed the offence. Unlike in civil cases, in the scale of justice, the evidence must be very weighty towards pointing to the accused as the person who committed the offence. It is not just enough to show a slight probability but rather a very high probability that the accused committed the offence. I will refer to a case or two in this regard. In Maba vs The State (2020) LPELR-52017 (SC), the apex Court held in this wise:
“The burden placed on the prosecution in a criminal charge is a heavy one. It must establish the guilt of the accused beyond reasonable doubt. See Section 135 of the Evidence Act, 2011. It was held in Nwaturuocha v. State (2011) 6 NWLR (Pt.1242) 170 at 193 D-E, (2011) LPELR-SC 197/2010 that:
Proof beyond reasonable doubt does not mean proof beyond all doubt or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence, a degree of compulsion which is consistent with a high degree of probability.
at 186 E-G (supra):
It is not proof beyond all iota of doubt. One thing is certain is that where all the essential ingredients of the offence charged have been proved or established by the prosecution…the charge is proved beyond reasonable doubt. Proof beyond reasonable doubt should not be stretched beyond reasonable limit.
In Afolalu v. State (2010) All FWLR (Pt. 538) 812, (2010) 16 NWLR (Pt. 1220) 584, (2010) 5-7 SC (Pt. II) 93, (2010) 6-7 MJSC 187, it was held that:
Prove beyond reasonable doubt means prove to moral certainty, such prove as satisfies the judgment and conscience of a 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.
See also: Dairo v. The State (2017) 9-12 SC 119; Ikpo v. State (2016) All FWLR (Pt. 837) 619, (2016) 10 NWLR (Pt.1521) 50, (2016) 2-3 SC (Pt. III) 88; Bakare v. State (1987) 1 NWLR (Pt. 52) 579, (1987) 3 SC 1, (1987) 3 SCNJ 1.”
One more case in this regard will not harm anyone but for completeness, I will mention the case of Afuape vs State (2020) 17 NWLR (pt 1754) 381 where the Supreme Court held thus with regard to proof beyond reasonable doubt in these words:
“Proof beyond reasonable doubt” means establishing the guilt of an accused person with compelling and conclusive evidence. It does not mean proof beyond the shadow of a doubt. …To prove a case beyond reasonable doubt, there must be a degree of compulsion that is consistent with a high degree of probability. In other words, if the evidence against the accused is so strong as to leave only a remote possibility in his favour, which can be dismissed with the sentence, “of course it is possible but not in the least probable,” the case would have been proved beyond reasonable doubt. [Bakare v. State (1987) 1 NWLR (Pt. 52) 579; Ikpo v. State (2016) 10 NWLR (Pt. 1521) 501 referred to].”
The ingredients of the offence will be proved by the Prosecution. Where the ingredient of the offence is not proved by the Prosecution beyond reasonable doubt, that is to say, in such a way that a reasonable man will agree that in all probability, the accused committed the offence, the accused will be found not guilty. The lower Court to have found the Appellant guilty is convinced that there is enough evidence that pins the Appellant to the offence in such a way that a reasonable man will agree that the Appellant committed the offence. As earlier mentioned, this does not mean that once there is any doubt then the Appellant will be found not guilty and the decision of the lower Court set aside. The doubt to work in favour of the Appellant must be material doubts which should relate to the ingredients of the offence. This is what is called real doubt and not fanciful doubt as proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. See Emeka Mbachu vs The State (2018) LPELR-45163; Bemdoo Mindi vs The State (supra).
I will now look at the issues formulated for determination. The four issues formulated by Appellant’s counsel for determination in this appeal were adopted by the Respondent’s counsel. I will also adopt the same issues for determination, it is safer this way. I will reproduce them here and take them one after the other. The issues are:
1). Whether the learned trial Judge was right to have held that the Appellants were in possession of Exhibits A-J which they have the onus to show their licence when the military officer that brought the items have immunity under Section 38 of the Firearms Act.
2). Whether the learned trial Judge was right to have admitted into evidence Exhibits A-J in the re-examination of PW1.
3). Whether the learned trial Judge was right to have held that the nature of exhibits A-J were not in doubt, when there was no expert evidence to explain such to the trial Judge.
4). Whether the learned trial Judge was right to have convicted the appellants in respect of an offence of strict liability inspite of several short comings that characterize the case of the respondent at the trial.
I am tempted not to resolve the issues in their numerical order as issues 1 and 4 can be addressed together and thereafter address issues 2 and 3. The main thrust of the case in the lower Court and in fact this appeal is on issues 1 and 4, the resolution of these issues one way or the other will determine the appeal because the real issue here is whether the lower Court was right in convicting the Appellant which invariably is answering the question whether there was enough evidence beyond reasonable doubt that the Appellant was in possession of firearm or ammunition which was tendered and marked Exhibit A-J in the lower Court.
Talking about Exhibits A-J, I will now address and resolve issues 2 and 3 starting with issues 2. I reproduce issue 2 thus:
Whether the learned trial Judge was right to have admitted into evidence Exhibits A-J in the re-examination of PW1.
The lower Court admitted Exhibits A-J, which are mostly the ammunitions and/or firearms found in the bacco bag at the restaurant. These are:
1. 4 pieces of 6mm Mortar Bombs
2. 2 pieces of RPG charger
3. 2 pieces of AK47 Magazines
4. 202 pieces of 7.62mm ammunitions special
5. 306 pieces 7.62mm Ammunition NATO
6. The sum of N34,150.
The challenge of the Appellant on the admissibility of these Exhibits is on the ground that they were admitted during re-examination and not during the examination in chief. The point must be made clear that the ground for the objection is not that the items are inadmissible in law but rather the procedure by which they were tendered and adopted. I make bold to say that the test of admissibility is relevant and once an exhibit sought to be tendered is relevance and has passed the requirement for its admissibility, it will be admitted no matter the stage of the examination it was tendered. The point I am trying to make here is that, I do not seem to know of any law that says documents or items cannot be tendered during re-examination. This is a new learning which I do not want to learn. The items, that is Exhibits A-J are relevant and therefore admissible and the fact that they were tendered during re-examination is of no issue. See Em-International Systems Nigeria Limited vs First City Monument Bank Ltd (2019) LPELR-50896 (CA).
I do not seem to see the wisdom of the Appellant’s counsel submission on this point. I resolve this issue in favour of the Respondent.
Issue 3 is couched in these words:
Whether the learned trial Judge was right to have held that the nature of exhibits A-J were not in doubt, when there was no expert evidence to explain such to the trial Judge.
The question this issue will be answering is whether there was need for the Respondent to establish through expert witness that these items marked Exhibits A-J are firearms within the definition of firearms under the Firearms Act. The Appellant’s counsel submission is that in the absence of an expert testimony, there is no how the Court could have come to the conclusion that the Exhibits are firearms within the definition of the law.
Section 2 of the Act defined Firearms to mean ‘any lethal barreled weapon of any description from which any shot, bullet or other missiles can be discharged and including a prohibited firearm, a personal firearm and a muzzle-loading firearm of the categories referred to in Parts I, II and III respectively of the schedule thereto and any component part of any such firearms’. Ammunition on the other hand is defined as ammunition for any firearm and any component part of any ammunition. The schedule of the Firearm Act defines Bombs as prohibited firearms. See Idowu Makanjuola vs The State (2021) LPELR-54998 (SC); The State vs Squadron Leader Olatunji (2003) 2-3 S.C. 85; Mikairu Momodu vs The State (2007) LPELR-8380 (CA).
Section 68 (1) of the Evidence Act provides that when a Court wants to form an opinion on scientific and other technical nature, an expert witness will be required. This does not say that a Court must of necessity call expert witness otherwise the opinion by the Court or the evidence given in relation to that issue is inadmissible. An expert witness will only be necessary and absolute where the issue before the Court is such a nature that falls outside the reasonable knowledge of a Court. If by ordinary and common knowledge of a Court, the issue before it is not so technical as to require an expert, the Court can depend on his knowledge. See Atiku Abubakar & Anor vs INEC (2019) LPELR-48488(CA). In Eromosele vs FRN (2018) 11 NWLR (pt 1629) 60, the apex Court driving home this point held thus:
“An expert is a person who is specially skilled in the field which he is giving evidence, and whether or not a witness can be regarded as an expert is a question of law for the Judge to decide. Expert opinion is only necessary where the expert can furnish the Court with scientific or other information of a technical nature that is likely to be outside the experience and knowledge of the Judge”
The Firearms Act has defined what will amount to firearms and ammunition. In this respect, it is my considered opinion that it is not in all cases that expert witness will be needed. In the circumstance of this case, I do not see the need to call an expert to give evidence as to whether the items fall within the definition of firearm or ammunition. For instance, no Court needs an expert to give expert evidence when he sees a gun to determine in holding that it is a firearm. There is nothing technical about those in my opinion. The lower Court in the case leading to this appeal has held at pages 91-92 that the items are undoubtedly ammunitions under the law.
The Learned DDPP has submitted in line with the position of the lower Court that the items had been in the possession of security operative who are familiar with these items and since they described and identify them as firearms and ammunitions, there is no need to call an expert witness. I agree with that submission as the PW1 and PW2 are security operatives who by their training are conversant with ammunitions. In my view, the lower Court is in right standing in not seeing the need to call an expert witness.
The point must be made that a party is not under obligation to call a host of witnesses to establish his case. The prosecution can establish his case by even one credible witness, however the prosecution has a duty to call material and vital witnesses. See Musa Bahago vs The State (2020) LPELR-50212 (CA); Eluji Kingsley Eze vs The State (2018) 11 NWLR (pt 1630) 353. In Galadima vs The State (2017) LPELR-43469 (SC), the apex Court held:
“Once the prosecution can prove their allegation beyond reasonable doubt with the witnesses they have screened and selected, they would have discharged the burden of proof cast on them by law. They owe neither the Court nor the accused the duty to call a host of witnesses, or a particular witness. I accordingly do not agree with the appellant’s counsel that the failure to call one sergeant Sani was fatal to the prosecution’s case. Clearly, repetition of a piece of evidence goes to surplusage. Though surplusage may be to emphasize a point; it is, however, not necessary for proof beyond reasonable doubt .”
The Appellant’s counsel also submitted that the inability to call the military personnel who collected the items to show that those were the items collected at the scene was fatal to the case of the Respondent is of no moment. I do not think so as the Appellant did not challenge this fact at the lower Court, that apart this was not raised by way of cross-examination. If the Appellant wanted to make an issue of this, he could have subpoenaed the Military men. The fact that the Military did not come to testify does not in my opinion affect the case of the Respondent provided that the prosecution proved the ingredient of the offence, which is that, the Appellant is in possession of firearms, the firearms were within the meaning of the Act and the Accused has no licence to have in her possession the firearms and ammunition. See Bello Okashetu vs The State (2016) 40611 (SC). I also resolve this issue in favour of the Respondent.
Having resolved the two issues, it is now time to address the main issue that will determine this appeal. I will take issue 1 now before issue 4. Issue 1 reads thus:
Whether the learned trial Judge was right to have held that the Appellants were in possession of Exhibits A-J which they have the onus to show their licence when the military officer that brought the items have immunity under Section 38 of the Firearms Act.
The Appellant’s counsel made an issue of the immunity on Military men under Section 38 of the Firearms Act. With due respect, that Section does not apply to this case. To appreciate the point I am making, I reproduce Section 38 of the Firearms Act.
“The provision of this act shall not apply to any member of the armed forces of the federation or to a member of the Police Force in relations to any firearms or ammunition issued to him for official purposes and an officer of such Armed Forces or of the Police Force shall if the Inspector General of Police is satisfied that he is required to purchase…”
The Appellant cannot take advantage of this provision because she is not a military officer and much more that the immunity is not absolute, as the Section only protects members of the armed forces to whom the firearm is issued to for official purpose. For even a Military officer to enjoy the immunity, the onus is on him to show that the firearms was issued to him for official purpose.
The real point which issue 1 addresses and which is paramount to the determination of this appeal is whether the Appellant was in possession of the firearms. The most important point is to determine whether the Appellant was in possession of the firearms. The offence is complete once the Respondent could show that the Appellant was in possession of the firearms. In this regard, the apex Court in The State vs Femi Oladotun (2011) LPELR-3226 (SC) held:
“The provision of the Firearms Act supra is simply on possession, no more no less. That is to say that the intent of the legislature lays emphasis on possession, which represents that the mere fact that a firearm is found in possession of a person, once the three ingredients stated above have been established, that provision has been met.”
The issue here is whether the Appellant was in possession of the bacco sack bag containing the exhibits. The Appellant’s counsel went to town to define what will amount to possession and that the Appellant cannot be said to be in possession of the sack containing the exhibits. In my opinion, once the bag is put under the control or custody of the Appellant, she is in law in possession either actually or constructively. In such a circumstance, the requirement of possession would have been satisfied. The question is therefore whether from the evidence before the lower Court, the Appellant can be said to be in possession of the bag containing the exhibits? It is not just enough for any kind of evidence but whether the evidence is strong enough to hold the Appellant liable for the offence. The Appellant who was 2nd accused though retracted her statement Exhibit ST2 but I do not see the effect of that because the evidence she gave in Court found on pages 38-39 of the records is not radically different from the statement she made at the lower Court. In her evidence and statement, she did not deny that the bag containing the Exhibits which happened to be firearms and ammunition was kept in her custody by Mr. Emma to keep for him which he will come to pick later. Her defence is that she did not know the content. The point must be made that even by her evidence once she accepted to keep the bag for Mr. Emma, she has the custody of the bag as it was put in her care. To that extend, she is in possession of the bag because she will naturally not allow anyone to take the bag from where it was kept by anyone else except the Mr. Emma who gave her the bag to keep for him. She is in control of the bag at that time and so between when the bag was kept in her custody and when Emma will come for it she is in charge and can do anything with the bag. If that does not amount to possession, I wonder what it is. All the dictionary definitions the Appellant’s counsel gave as to the meaning of possession can apply to the Appellant. For as long as it relates to the Appellant and the bag, she has exclusive dominion and can exercise rights over the bag to the exclusion of all others except the Mr. Emma who put the bag in her possession, control or care. In law, there is a difference between ownership and possession. Indeed, there is a world of difference as the person who is the owner may not be the person in possession. See Registered Trustees of Onitsha Printing Paper Dealers Association vs Mr. Law Edemanya & Anor (2017) LPELR-42200 (CA). I have no difficulty in holding that the Appellant was in possession of the bag containing the exhibits and therefore liable for the content.
Let me state clearly that the statement does not qualify as a confessional statement, that is to say, to all intent and purpose is not a confessional statement as it did not meet the meaning of a confessional statement. This is because the Appellant did not in the statement admit committing the offence for which he was charged. A confessional statement is one where the maker admit or make inference to the effect that he committed the offence. See Sunday Uluebeka vs The State (2000) 7NWLR (pt 665) 203.
I have looked at Exhibit ST2 and as mentioned above, I do not see any difference between the statement and her oral evidence in Court. I agree with the lower Court that the statement was taking in line with the law by PW1 and therefore it is admissible. I must hasten to say that the Appellant did not make the admissibility of the statement as a ground of appeal, I therefore will not go that way.
Once, there is acceptable evidence that the Appellant was in possession, the onus rest on the Appellant to show that he has licence to keep the exhibit. This is the stage to take issue 4 because all the above resolutions will not necessarily lead to the conviction of the Appellant.
I will reproduce issue 4 thus:
Whether the learned trial Judge was right to have convicted the appellants in respect of an offence of strict liability inspite of several short comings that characterize the case of the respondent at the trial.
The Appellant will only be properly convicted if all the ingredient of the offence has been proved beyond reasonable doubt. Before stating the position of the law on the ingredients of the offence, the point must be made that the offence the Appellant is charged for is a strict liability offence meaning that the offence is complete once the Appellant is found to be in possession of firearms. The only defence available to the Appellant will be to show that he has a licence
The ingredient of the offence has been stated in a number of cases to mean and restricted to the following:
1. That the Accused was found in possession of firearms
2. That the firearms were within the meaning of the Act
3. That the accused had no licence to possess the firearms.
In Bille vs State (2016) 7 S.C. (pt iv) 121, the apex Court in this regard held thus;
“In a charge of unlawful/illegal possession of firearms under Section 3(1) of the Robbery and Firearms (Special Provisions) Act, the prosecution proves the case beyond reasonable doubt if the following three ingredients are established.
(a) that the accused person was found in possession of firearm;
(b) that the firearm is within the meaning of the Robbery and Firearms (Special Provisions) Act;
(c) that the accused person has no licence to posses the firearm.
See, Momodu v. State 2008 ALL FWLR (Pt. 447) p. 67 State v. Oladotun (2011) 10 NWLR (pt. 1256) P.542”
The ingredient of the offence as stated above is that, the firearms must be in the possession of a person who does not have the licence to carry same. In other way round and sounding more specific, once the Appellant is found to be in possession of firearms, he will be held liable except she can show that she has a license. In deciding whether the lower Court is right, it is important to make the distinction between firearms and ammunition. The offence for which the Appellant is convicted for is possession of firearms and not possession of ammunition. The Firearms Act in Section 2 defined firearms to mean any lethal weapon of any description from which any shot, bullet or other missile can be discharged, include a prohibited firearm, a personal firearm and a muzzle-loading firearm of any categories referred to in Parts I, II and III of the schedule. Part I of the schedule provides in item 4 that Bombs are firearms. The exhibits which was the content of the bacco bag were :
1. 4 pieces of 6mm Mortal Bomb
2. 2 pieces of RPG Charger
3. 2 AK 47 Magazine
4. 202 pieces of 7.62mm ammunitions ‘special’
5. 306 pieces of 7.62mm ammunition ‘NATO’
6. The sum of N34,150
7. One itel phone
Among the exhibits, by the definition of Firearms under the Act, it is only the items that will qualified as a firearm under the Act. The others are ammunitions and not firearms. The Appellant in my opinion based on the position of the law was in possession of firearms as defined under the Act. The Appellant could not prove that she has licence to possess the firearm. Her defence is premised on the ground that she had no knowledge of the bag containing the items as stated above. Her defence cannot avail her as the offence is a strict liability offence.
It is not in dispute that the offence is a strict liability offence but does that mean that the fact that a person does not know the content of the bag a good defence. It does not appear so, as it seems to me that once firearms is found in the possession of a person, the person is liable. This appears really hard and tough but that is the position of the law. A strict liability offence has been stated to mean that a person is legally responsible of the consequences flowing from the activity even in the absence of fault or criminal intent on the part of the defendant. See Dismass Alu Adoon vs FRN (2021) LPELR-55065 (CA). In such a case, the prove of mens rea is not important as the prove of actus reus is sufficient. See Michael Adeyemo vs The State (2015) 4-5 SC (pt II) 112. In the offence of possession of firearms, once there is possession, the offence is complete.
I have held above that the evidence before the lower Court shows possession of the firearms for which the Appellant has no license. I cannot seem to see my way clear in setting aside the judgment of the lower Court, in the circumstance of the facts before the lower Court. This is more so that the Appellant admitted that the bag was kept in her custody which invariably means she was in charge and in control of the bag. I cannot seem to see the sense in the Appellant’s counsel argument in the interpretation of the word ‘or’ in Section in Section 3 of the Firearms Act to give it a conjunctive interpretation. I will not waste my time on that.
I cannot interfere with the finding of the lower Court as I hold that the lower Court was in right standing in convicting the Appellant. In these days where there is so much damage done to society by the misuse of firearms, no Court should smile at anyone who directly carry firearm without licence or his conniving with such person. People should be mindful of what they keep for others. Wisdom demands that when you are asked to keep anything inquire about what is the content. The Appellant was very careless even from her own story and this is a costly carelessness. I resolve issues 1 and 4 in favour of the Respondent.
Having resolved all the issues in favour of the Respondent, it remains to say that this appeal fails and it is dismissed. The judgment of A.M. Ali J. in suit No BOHC/MG/CR/37/CT10/2020 is affirmed as I see no reason to set it aside.
JUMMAI HANNATU SANKEY, J.C.A.: I had a preview of the judgment just delivered by my learned brother, Ebiowei Tobi, J.C.A.
His lordship has dealt with all the issues arising in the Appeal comprehensively.
For the reasons given in the judgment, I too find the appeal lacking in merit. I also dismiss the appeal and affirm the judgment of the trial Court.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the privilege of reading the draft of the judgment just delivered by my learned brother EBIOWEI TOBI, JCA. This is a sister appeal to CA/G/94C/2021. The facts of the two appeals are essentially the same. I fully agree with the reasoning and conclusion of my learned brother in the leading judgment. I adopt my contribution in CA/G/94C/2021 which read as follows “The prosecution, in a charge of unlawful possession of firearms must establish three vital ingredients:
1) The accused was found in possession of firearms.
2) The firearm is within the meaning of the Firearms Act
3) The accused had no license to possess the firearm; see OKASHETU vs THE STATE (2016) 14 NWLR (1534) p126. From the facts of this case it was clear a bag containing some bomb was recovered from the restaurant of the appellant.
The learned trial Judge found and held that the items were in her possession. This agrees with the evidence adduced at the lower Court in other words the finding of the lower Court was not perverse. The defense of the appellant was not that items were not firearms under the Act, neither did the appellant contend that she had the licence to possess the said firearms.
I am therefore of the view that the conviction of the appellant by the lower Court is unassailable. I am also of the view that this appeal lacks merit as I resolve all the issues identified in this appeal against the appellant and dismiss the appeal. I also affirm the decision of the lower Court”.
I abide by the consequential orders in the lead judgment and also affirm the decision of the lower Court.
Appearances:
Chief I. O. Umeh, Esq. For Appellant(s)
K.S Lawan, Esq. (Hon. Attorney General, Borno State), with him, S.A Idrissa, Esq. (DPP) and A.S Kaigama Esq. (DDPP) For Respondent(s)