Abel Omoshola V. Commissioner Of Police (1977)

LawGlobal-Hub Lead Judgment Report

SIR UDO UDOMA, J.S.C. 

The appellant, with two others who have not appealed, was tried and convicted by a Magistrate in Lagos State on two counts of having committed offences contrary to Sections 3 and 9 respectively of the Firearms Act, Cap. 69 of 1958 and punishable under Section 28(1)(a)(i) and 28 (1) (b) (ii) of the said Act as amended by the Firearms (Amendment) Decree No. 31 of 1966 by having in his possession or under his control a prohibited firearm, namely, a submachine-gun Mark 1 No. 56951 and 14 rounds of submachine-gun ammunitions with magazine. He was sentenced to 10 years imprisonment on each count to run concurrently.

An appeal to the High Court was on 12th December, 1975 dismissed. In the course of his judgment on appeal, Adefarasin, Chief Justice of Lagos State, as he then was, excluded in his consideration a Ballistician’s report, Exhibit A, in the proceedings, on the ground that the same had been wrongly admitted in evidence by the learned Magistrate. Nevertheless, he affirmed the conviction of the appellant on the ground that there was other legally admissible evidence sufficient to warrant and sustain the conviction.

The appellant has again appealed to this court, and the only ground worthy of consideration argued before us may be stated as follows:-

The learned Chief Judge on appeal erred in law in dismissing the appeal of the appellant and affirming his conviction after excluding the Ballistician’s report as there was insufficient other legally admissible evidence to ground the conviction of the appellant in the absence of the Ballistician’s report.

In his submissions in support of the ground, Mr. Fawehinmi, learned counsel for the appellant, contended that the evidence contained in the Ballistician’s report having been excluded from the proceedings, whatever other evidence was left was insufficient to ground the conviction of the appellant. Further, learned counsel submitted that there was no evidence to establish that a sub-machine gun is a firearm within the schedule to the Firearms Acts, 1958, or, for that matter, that it is even a gun in the absence of the Ballistician’s report.

It should be noted that throughout his submissions no attempt was made by learned counsel to deal with the evidence on record before the learned trial Magistrate on which the conviction of the appellant was based, nor indeed was there any attack directed against the conviction of the appellant on count 2 of being in possession of ammunitions.

From the submissions of learned counsel, we were of the view that the appellant’s complaint is not really one of law but as to whether the conclusion reached by the learned Chief Justice is sustainable on the evidence, the Ballistician’s report having been excluded from consideration by the learned Chief Justice.

This then calls for the examination of the recorded evidence before the learned trial Magistrate. For this purpose it is not necessary to travel through the whole of the evidence given at the trial. It would be sufficient, we think, only to refer to the relevant portions of the evidence given by the two superior Police Officers, who testified before the learned trial Magistrate as well as the statement of the appellant himself, which were admitted in evidence.
The 1st witness for the prosecution was Peter Onime, Assistant Superintendent of Police attached to the Special Anti Robbery Squad, Onikan, Lagos. He swore that on 2nd June, 1971 as a result of the information which he received concerning the “10,000 Wahum Robbery Case,” he had led a team of detectives while Mr. Jubril, Deputy Superintendent of Police, had led another to Mushin area in search of the money and the criminals; that later that day, Deputy Superintendent of Police, Jubril, brought to him the 2nd accused person (who has not appealed) together with some firearms and ammunitions, which he described as consisting of a submachine gun No. 56951, one magazine and 14 rounds of ammunitions (the firearm, magazine and ammunitions were admitted in evidence and marked as Exhibits B, C, and D to D13 respectively). Continuing his evidence, Peter Onime said that in the presence of the appellant, Exhibits B, C, and D  D13 were parcelled by him and sent to the Ballistician for examination; that the same were later returned to him by the Ballistician with his report thereon.

The 2nd witness for the prosecution was Alli Jubril, Deputy Superintendent of Police, attached to the State Criminal Investigations Department, Lagos. He stated that he was formerly attached to the Anti Robbery Squad; that on 2nd June, 1971, as a result of information in connection with the “10,000 Wahum Robbery Case,” he had arrested the appellant while he was engaged in tracking down those concerned in the robbery case among whom was one Dr. Oyenusi (deceased); that in the course of his investigation, one Ogbolu (deceased) confessed to the hearing and in the presence of the appellant and Eze Chukwuma, the 3rd witness for the Prosecution, that the gun, that is, the submachine gun, Exhibit B, which he, Ogbolu, used to carry about in his robbery exploits belonged to the appellant; that that confession was confirmed by Eze Chukwuma who, in addition, stated that the appellant had assigned him (Eze Chukwuma) to clean and oil the gun and ammunitions for him; that as a result Eze Chukwuma took him and the appellant to the house where  the gun, the magazine and the ammunitions were discovered and removed by him to the Police Station. To put it in his own words as to what followed thereafter; he said:

“I then requested Mallam Mohammed to surrender the gun to me as I have come for it. Mallam Mohammed handed over the gun to me ………. 1st accused (appellant) then told me he was sorry to have been telling lies and deceiving me all the time……..1st accused then accepted the ownership of the gun and ammunitions and the magazine exhibited in this case. He said that it was at the request of the 2nd and 3rd accused persons that he organized and got the gun and the ammunitions ……… 1st accused then made two voluntary statements, Exhibits H and H1, to the Police.”

In his two confessional statements, Exhibits H and H1, the appellant identified the submachine-gun which he described as automatic gun, and the 14 rounds of live ammunitions with magazine as his property. He claimed that they were in his possession. Throughout his statements he consistently referred to the submachine-gun simply as his gun.

In the light of the evidence set out above, including the confession of the appellant that the submachine-gun was his gun, and that he was in possession of it as well as with the ammunitions, we think it is hair-splitting to contend that a submachine-gun is not a gun prohibited under Part I of the Schedule to the Firearms Act. In this respect, were we in any doubt at all, and we are not, we would have had no hesitation in accepting the submission of Mr. Ejiwunmi, Acting D.P.P. that, on the evidence, a submachine-gun is only a type of machine-gun which is prohibited under the Act; and that, in any event, the appellant was caught by Item 8 of the Schedule to the Act – usually described as the dragnet item –  which prohibits “Any other firearm not specified in Part II or Part III of this Schedule, including automatic and semi-automatic shotguns.”

We are of opinion, having regard to the evidence of the superior Police Officers, who testified before the learned Magistrate, and the confessional statements of the appellant against which there has been no complaint, that the learned Chief Justice on appeal was right in his conclusion that there was undoubtedly ample evidence independent of the Ballistician’s report to ground the conviction of the appellant. This appeal therefore fails. It is dismissed.

SC.336/1976