Ekanem Joseph Stephen V. State (2008)
LawGlobal-Hub Lead Judgment Report
THERESA NGOLIKA ORJI-ABADUA, J.C.A.
The charge preferred against the Appellant at the trial Court was thus:
“unlawful possession of firearms contrary to section 3(1) of the Robbery and Firearms (Special Provisions) Act Cap. R.11 Vol.14, Laws of the Federation of Nigeria, 2004”.
The particulars of the offence read that the Appellant, Ekanem Joseph Stephen, was found to be in possession of a locally made revolver pistol without a licence or permit along Goldie Street, Calabar on the 10th July, 2005. He was arraigned on the 31st March, 2006 and trial commenced immediately. At the trial, the prosecution called two witnesses while defence presented only one witness. At the conclusion of the trial, and, in finding the Appellant guilty, the learned trial Judge held at pages 85 and 86 thus:
“Since I had earlier held that I will not consider Exhibit “C” as a confessional statement, it would no more be material whether or not it was confirmed before a SUPOL.
Now, what explanation did accused person give for being in possession of Exhibit “B”. Accused offered none to the Police. I have disbelieved his denial in Court.
I therefore find the accused person guilty as charged. The way section 3 (1) of the Robbery and Firearms (Special Provisions) Act is couched, it is either an accused person is not guilty and is acquitted or is guilty and must be sentenced to a term of not less than 10 years or N20,000 fine.
There is the prevalence of violent offences committed with firearms in Calabar where young men would not let law abiding citizens live in peace. Snatching telephone handsets and motorcycles from people with firearms is on the increase in Calabar. In view of the need to protect the budding tourism we are trying to build in our state, I will not give the accused person the option of fine to keep him out of circulation for sometime and serve as a deterrent to others like him still outside engaging in such nefarious activities.
I sentence the accused person, EKANEM JOSEPH STEVEN to 10 years imprisonment. The period he has already spent in custody shall be computed as part of the 10 years.
It was following this that the Appellant filed the present appeal and in his Appellant’s Brief of Argument, two issues were identified for determination. They are:
“1. Considering the state of evidence, particularly, the scrappy, weightless, unreliable, terse and contradictory evidence led by the prosecution, whether or not the prosecution had proved the ingredients of the offence necessitating the conviction and sentence of the Appellant.
- Considering the discretion of the lower Court in passing a sentence, whether or not the lower Court passed the sentence of ten years imprisonment against the Appellant on the right principle.”
The Respondent for it’s part adopted the two issues as they were propositioned by the Appellant.
Learned Counsel for the Appellant, Nta A. Nta, Esq., on the first issue, submitted that in every criminal trial, the law casts the onus on the prosecution to prove the criminal charge preferred against an accused person beyond reasonable doubt, and, if on the totality of the evidence, a reasonable doubt was created, the prosecution would have failed to discharge the onus of proof as required by law thereby entitling the accused person to the verdict of acquittal. He referred to the cases of Bolanle V. State (2005) 7 NWLR (Part 986) 508 at 523 paras. D-E, and Igabele V. State (2006) 6 NWLR (Part 975) 100 at 131 para. D, See Fatoyinbo V. A-G, Western Nigeria (1961) NWLR 4: and State V. Danjuma (1997) 5 NWLR (Part 506) 512 and section 138 of the Evidence Act. Cap. 112, Laws of Federation of Nigeria, in support of his assertions. Counsel stated that by the provisions of section 3(1) of the Robbery and Firearms Act, Cap. 398 Vol. XXII Laws of Federation of Nigeria, for the prosecution to succeed, it must prove the following ingredients:
“(a) Having a firearm in his possession or under his control, and
(b) In contravention of the Firearms Act or any order made there under.”
It was submitted that the prosecution is duty bound to prove in evidence that Exhibit B, allegedly recovered from the Appellant, was a lethal barreled weapon or firearm, and, that could only have been done by adducing oral evidence or leading expert evidence, whether of a ballistician or otherwise, to establish the same. He cited the case of Olatunji V. State (2000)12 NWLR Part 680 p. 182 at 194 para. D-H. in support.
He referred to the evidence of P.W 1 where he said that he recovered from the Appellant a locally made pistol, and, that of P.W. 2, who told the trial Court, that it was a locally made revolver pistol, and, then, queried, ”whether the trial Court was right to have held that Exhibit B was a firearm and thereby convicted the Appellant of the offence in the absence of evidence by the prosecution that the weapon is a firearm”. He further asked, ‘what if Exhibit B allegedly found in the possession of the Appellant was a toy? He submitted that the prosecution witnesses were inconsistent on what was actually recovered from the Appellant which said contradictions the trial Court ignored. He cited the cases of Agbo V. State (2006) 6 NWLR Part 977 p. 545 at 564 para. B-F. Gabriel V. State (1989) 5 NWLR Part 122 p. 457. and Nwosu V. State (1986) 4 NWLR Part 35 p. 348 and submitted that it is the law that where the testimonies of prosecution witnesses are contradictory and irreconcilable, it would be illegal to accept and believe the evidence of such witnesses. He contended that how Exhibit B is a firearm is not in evidence, and, there was no forensic evidence to bring it within the ambit of section 15 of the Robbery and Firearms (Special Provisions) Act.
Furthermore, learned Counsel referred to the evidence of the Appellant during his defence at pages 39-41 of the record of appeal on how he was knocked down by a speedy motorcycle which crashed into a heap of sand, the two persons on the bike abandoned it and ran away. Later the police arrived at the scene and arrested him in the pool of his own blood. Counsel further contended that the prosecution failed to prove both the mens rea and actus reus of the crime. He cited the case of Eggarevba V. The State (1986) 3 NWLR Part 26 p. 1 at 3 ratios 12 and submitted that it will be dangerous to assume that the weapon may have been deposited there by the Appellant. He stated that the prosecution is duty bound to adduced evidence connecting the Appellant with the thing so found, both mentally and physically or constructively. It was further contended that the trial Judge failed in his judgment to consider the defence of the Appellant, more so when the defence was never challenged by the prosecution under cross-examination.
Counsel further argued that there was nothing indicative of the fact that if assuming but not conceding that Exhibit B was recovered from the Appellant, an investigation was conducted by the police to ascertain whether or not the Appellant was authorized in law to possess such weapon since his alleged possession of the said Exhibit was said to be in contravention of the Firearms Act. He stated that the fact the Appellant could not give satisfactory explanation to P.W. 1 was insufficient to establish that he had Exhibit B in contravention of the said Act. He stressed that the phrase “in contravention of the Act or any order made thereunder” is an essential ingredient which the prosecution was bound to have proved and which they failed to prove in the present case. He referred to the excerpts from the judgment of the trial Court at pages 53 and 54 of the record, and, stated that the learned trial Judge rather than making a finding embarked on speculation. He urged the Court to resolve that issue in favour of the Appellant.
On the second issue, learned Counsel referred to page 56 lines 9-18 of the record of appeal and the case of Tsaku V. State (1986) 1 NWLR Part 17 p. 516 at 531 para G-H per Akanbi J.C.A (as he then was) and submitted that such factors as prevalence of violent offences committed with firearms in Calabar, snatching of telephone handsets and motorcycles from people with firearms, and the need to protect the budding tourism in Calabar were never placed as materials before the trial Court which influenced the sentence he passed on the Appellant. He referred to the cases of Iortim V. State (1997) 2. NWLR Part 490 p. 711 and Laja V. Police (1961) 1 All NLR p. 715, Enahoro V. Q (1965) N.M.L.R p. 265 at 283 and Uwakwe V. State (1974) 9 SC. 25 and stated that the decision of the trial Judge was not based on known principles, was prejudicial to the Appellant and ought to be set aside. He urged the Court to allow the appeal and set aside the decision of the trial Court and in its place enter a verdict of discharge and acquittal in favour of the Appellant.
Learned Counsel for the Respondent, F.L Ititim Esq., Assistant Director Public Prosecutions, Ministry of Justice, Cross River State, submitted in respect of issue NO.1 formulated by the Appellant, that proving that Exhibit B was a lethal, Barrel weapon from which a shot, bullet or any missile can be discharged did not require any special consideration but the empirical view of the Exhibit by the trial Court. He said it is clear that a pistol or revolver is a kind of weapon that can discharge a bullet, a shot or a missile, and as such, no ballistician is required to say what a gun is, just like no Aerobic or Mechanical Engineer is required to tell us what an aeroplane or a car is. He said that the case of Olatunji V. State (supra) is distinguishable from the present case because the central issue therein was what a hand grenade was. He said it was the duty of the Appellant’s Counsel to draw the attention of the Prosecution witnesses to the possibility of Exhibit B being a toy or anything other than a firearm. He submitted that the ingredients of the offence were proved and that the case was proved beyond reasonable doubt as required by the law. He referred to section 15 of the Robbery and Firearms (Special Provisions) Act and submitted that whether Exhibit B was a pistol or revolver was immaterial since firearm was defined to include the two.
Learned Counsel, further, cited the cases of Agbo V. State (2006) 6 NWLR (Part 977) 545 at 564 and 584 per Mukhtar J.S.C. ratios 1 & 2, Gabriel V. State (1989) 5 NWLR (Part 122) page 457 at 469 Held 9 & 10, Igabele V. State (2006) 5 MJSC 96 at 108 per Onu J.S.C – Ehot V. State (1993) 5 SCNJ 65 at 80 Held 3, Onubogu V. State (1974) 9 SC 1 at 20, and Enahoro V. Queen (1965) NMLR 265 at 281-282 per Ademola C-J-N (as he then was) and submitted that it is not every minor discrepancy in the evidence of the prosecution witnesses that can legally qualify as an inconsistency, resulting in an acquittal.
On the evidence of the Appellant, Learned Counsel then queried that if as alleged by the Appellant, he was knocked down by a rampaging cyclist, why was the motor cycle released to him? He further said that Exhibit C contained certain facts that were peculiarly within the knowledge of the Appellant, such as, his matriculation number, year of study and department at School and number of his siblings. Counsel also stated that the case of Eggarevba (supra) is distinguishable from this case because in the instant case, the Appellant was carrying Exhibit B while riding a motorcycle, so at that time, the Appellant had the sole control and possession of the gun. He further submitted that possession of Exhibit B contravened the provision of the Act especially as the Appellant could not, upon demand, produce a licence authorizing him to carry the same. See S. 3 of the Firearms Act. He further referred to Adekunle V. State (2006) 18 MSSC 107 at 128 ratio 15 and Edet Effiong Ekpe V. State and urged the Court to hold that expert evidence was not necessary to establish that Exhibit B was a firearm.
Turning to the second issue, learned Counsel submitted that the sentence passed on the Appellant was neither excessive in the circumstance nor based on wrong principle, and that it was as prescribed and stipulated by the law. He cited Iortim V. State (1997) 2 NWLR Part 490 p. 711 at 733 where factors such as ”the severity of the offence”, danger to life and properties and the stiff penalty imposed by statute were considered, and, then urged the Court to refuse to reduce the sentence imposed by the Court.
He referred to the cases of Tsaku V. State (supra), Asuquo Etim & anor V. The Queen (1964) ALL NLR page 33 at 41, Thomas V. The State (1994) 4 NWLR Part 337 p. 1 at 138-139 and Isong V. State (1996) 9 NWLR Part 473 p. 458 at 472 473 and stressed that it was proper for the trial Court to have sentenced him without an option of fine so that the society can be shielded from hoodlums like the Appellant. He stated that once the trial Court exercised its discretion judicially and judiciously, the Court of Appeal should not interfere with the discretion. He stated that the appeal is unmeritorious and therefore urged that it be dismissed.
It is a cardinal principle of law that the commission of a crime by a party must be proved beyond reasonable doubt. The burden of proving that any person is guilty of a crime rests on the prosecution. See S. 138 of the Evidence Act. The burden never shifts, and if on the whole of the evidence, the court is left in a state of doubt, the prosecution would have failed to discharge the onus of proof which the law lays upon it and the prisoner is entitled to an acquittal. It is also trite that neither suspicion nor speculation or intuition can be a substitute for proof beyond reasonable doubt. It is a proof that excludes all reasonable inference or assumption except that which it seeks to support. It must have the clarity of proof that is readily consistent with the guilt of the accused person. See State V. Onyeukwu (2004) 14 NWLR Part 893 p. 340 and State V. Danjuma (1997) 5 NWLR Part 506 p. 512.
It is also necessary to note that in a criminal trial, there is generally no duty on the accused to prove his innocence. However, there may be circumstances in which some explanations are required from the accused person where the facts against him are strong. If he fails to offer such explanations, his failure will support an inference of guilt against him. Furthermore, where the evidence adduced by the prosecution in a criminal case is tested, scrutinized and accepted by the trial court and it conclusively points to the accused as the perpetrator of the crime charged, it is for the accused to rebut the presumption that he committed the crime and at least to cast a reasonable doubt on the prosecution’s case by preponderance of probabilities. See Igabele V. State (2006) 6 NWLR Part 975 p. 100.
Section 3(1) of the Robbery and Firearms Special Provisions Act Cap RII, 2004 Laws of the Federation of Nig. Vol. 14 provides thus:
“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.”
The said Act defined ‘firearms’ to include “any cannon, gun, rifle, carbine, machine-gun, cap-gun, flint lock gun, revolver, pistol, explosive or ammunition or other firearm whether whole or in detached pieces.
P.W. 1 said that on 10/7/05, they received a radio message that a motorcycle was snatched from its owner and that they should stop all unregistered motorcycles, and arrest the owners and bring them to the station. When his patrol team sighted the Appellant at about 10pm along Goldie Street, Calabar, with an unregistered Q Link 125 Motorcycle, they stopped and searched him and there and then recovered a locally made pistol on him. The Appellant could not give a satisfactory explanation as to how he came by the pistol. He said that the Appellant did not produce a licence permitting him to carry the pistol.
P.W. 2, CPL Ibiang said that when he was detailed to investigate the matter, the Appellant proffered a statement to him admitting that he was arrested on the date in question by a team of policemen with a locally made pistol (Exhibit B). He tendered the said statement which was objected to only on the ground that the Appellant was not taken before any Police Officer and that the accused was denying the statement. Later, the Appellant Counsel conceded to the admissibility of the statement.
P.W.2 narrated how he conducted the investigation and confirmed that the said Gabriel Eyo mentioned by the Appellant in Exhibit C actually lived in the same room with the Appellant, and, he was a member of Black Axe confraternity, a’ cult.
The only place P.W.2 mentioned locally made revolver pistol was at the commencement of his testimony where he said at lines 5 and 6 of p. 36 of the record of appeal that “Transferred along were accused person, and a locally made revolver pistol. Then, throughout the length and breath of evidence in chief and cross-examination he simply talked about a locally made pistol.
It must be stated that the unlawfulness in the possession of either locally made pistol or a locally made revolver pistol would only occur where the possessor did not have a valid licence or hold it pursuant to an order made thereunder.
On the Appellant being in possession of the firearm, P.W. 1 was firm, direct and coherent in his testimony. Therefore, since the prosecution had proved that the Appellant was found in possession of Exhibit B on 10/7/05, it was for the Appellant, when viewed from the angle of the decision in Igabele V. State (supra) to have offered some explanation by stating how he came by the offensive weapon whether by licence issued to him by the Inspector General of Police or by an order for him to carry such weapon. I have scrutinized the entire record of this appeal but could not pin-point where the Appellant offered such an explanation.
It is imperative to state that the offence of being in an unlawful possession of firearms does not require proof of mens res and actus reus as contended by the Appellant’s Counsel. It is a strict liability offence. The elements do not contain the need for criminal intent or mens rea. Once a person has knowingly taken possession of an article and it remains within his control, he continues in possession of it. So long as the appellant did not come into possession of the weapon in accordance with the Act or any order made thereunder, it can never be argued that his intentions were entirely lawful. It is not necessarily a reasonable excuse that the weapon is carried only for self-defence. One, who is under constant threat, it is said, must resort to the police. He commits an offence if he regularly goes out armed for self-defence.
Thus, in Bradley V. Moss (1974) Crim. LR 430, DC: Pittard V. Mahoney (1977) Crim. LR 169, Grieve V. Macleod (1967) SCT 70, it was held that there was no excuse for carrying an ironbar though D had reasonable cause to fear and did fear that he would be violently attacked and intended to use the bar for defence only, and, that, it was not reasonable for an Edinburgh taxi-driver to carry two feet of rubber hose with a piece of metal inserted at one end, though he does so for defence against violent passengers whom taxi drivers sometimes encounter at night. See Smith & Hogan Criminal Law, 10th Edition (2002) p. 461-462.
In Olatunji’s case, it was because grenade was not covered by the definition of firearm, that a ballistician was held to have been needed to establish whether the grenade was a firearm or not. The Appellant in the instant case did not claim it was a toy gun he had on him or that it was not a pistol but something having semblance of it. Therefore, the argument of learned Counsel for the Appellant in this respect is hereby not countenanced.
I think the learned trial Judge was right in believing the evidence of the prosecution witnesses notwithstanding the description they ascribed to the item. It is simply a case of distinction without difference. The law is that it is not every contradiction, however minute, that would be sufficient to damnify a witness. The contradiction that would make a Court disbelieve a witness has to be on a material point in the case. Contradiction is a statement, action or fact that contradicts another or itself. It is a statement which states the opposite of what is being contradicted. Thus for a statement to be contradictory, it should be a direct opposite of what was earlier stated or spoken, not when there is just a minor discrepancy, in say, details. Two pieces of evidence contradict one another when they are by themselves inconsistent. On the other hand, a discrepancy may occur when a piece of evidence stops short of, or contains a little more than what the other piece of evidence says or contains some minor differences in details. See Dagawa V. State (2006) 7 NWLR Part 980 p. 637. A material contradiction goes to the root of the evidence of a witness and it is fatal to the case of the party relying on it.
Now applying the above principles to the facts of this case on appeal, I am of the profound view that even though there is a discrepancy between the evidence of P.W. 1 and P.W. 2 as to the detailed description of the type of locally made pistol that was recovered from the Appellant, it did not go to the root of the case. Both pistol and revolver were all small guns, the only difference is that a revolver has a container for bullets that turns so that several shots can be fired quickly. It would have been materially different if P. W. 2 had said that a machine gun or sub-machine gun was recovered from the Appellant. In that case they would have been at variance with one another.
In the instant, I do not think that the omission or inclusion of the prefix “revolver” before pistol detracted from the fact that the Appellant was found in possession of firearm on 10/7/2005. To me, it is a minor inconsistency in the form of detail that did not go to the root of the evidence adduced by the prosecution against the Appellant. It is therefore, my view that the trial Judge adequately considered and evaluated the evidence adduced on both sides.
I, also, think that the trial Judge was right in his findings based on the convincing evidence of P.W. 1 and P.W. 2 adduced before him. Obviously he was not fascinated by the pictures painted by the Appellant. I personally did not see any reason why his findings and decisions will be interfered with by this Court. I therefore resolve issue No. 1 against the Appellant.
Dealing with the second issue, which queried whether the sentence of ten years imprisonment imposed by the trial Judge was based on the right principles, it ought to be recognized, as aptly stated by both Counsel for the parties, that a trial Judge has discretion in matters of sentence, but, his discretion must be exercised judicially and judiciously. In the exercise of such discretion, the trial Judge must be conscious of the bounds within which he is kept by the law and must not exceed the same. He must not and will never pass any sentence in excess of the term of years or months stipulated by the law. He can, nevertheless, pass a less sentence than that provided by the law having regard to the facts and circumstances of each case. It is desirable that in exercising his discretion over sentence, a trial Judge should state in his judgment the factors that influenced his decision.
It is, also, settled that an Appellate Court will not interfere with the sentence imposed by a trial Court unless it is manifestly excessive in the circumstances or wrong in principle. The Act under which the Appellant was charged, i.e., the Robbery and Firearms (Special Provisions) Act, prescribed that a person found guilty of being in possession of firearms shall be sentenced to a fine of Twenty Thousand Naira or to imprisonment for a period of not less than ten years or to both. In the instant case, the trial court in passing the sentence took into consideration the spate of crimes in Calabar and the need to insulate the society from people such as the Appellant, and, then sentenced the Appellant to 10 years imprisonment without an option of fine.
By section 3(1) of the aforestated Act, it is clear that the sentence imposed is within the prescribed period. It is not excessive since the law prescribed that he shall be sentenced to at least 10 years imprisonment, being the minimum number of years he would receive in relation to an offence of that nature. The reason why the trial Judge opted for a term of imprisonment rather than imposition of a fine was best known to him who actually had the opportunity of seeing the Appellant and watching his demeanor. It should be noted that being in an unlawful possession of a firearm is a serious offence particularly where the Appellant did not explain that he had obtained a licence or permit in the past but the licence unknowingly expired.
Since the learned trial Judge had exercised his discretion which I find to be in accordance with the provisions of section 3 (1) of the Robbery and Firearms (Special Provisions) Act, 2004, and known principles, it will be difficult for this court to substitute the sentence of imprisonment with that of fine.
I’m sorry, the Appellant’s story, as pathetic as it may sound, did not find favour in this Court. Therefore, the appeal is bound to fail.
Consequently the appeal is hereby dismissed and I affirm the decision of the Court below, affirming the conviction and sentence of 10 years imprisonment imposed on the Appellant by the trial Court.
Other Citations: (2008)LCN/2989(CA)
