Makanjuola V. State (2021)
LAWGLOBAL HUB Lead Judgment Report
IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.
The present appeal has emanated from the judgment of the Court of Appeal, Ilorin Judicial Division, delivered on May 18, 2018 in appeal NG. CA/IL/C.19/2017. By the judgment in question, the Court below, Coram C. N. Uwa, K. A. Barka, and B. M. Ugo, JJCA affirmed the conviction and sentence (to death) of the Appellant by the trial High Court of Kwara State.
Dissatisfied with the said conviction and sentence passed thereupon, the Appellant appealed to the Court below. By the vexed judgment thereof, the Court below came to the following conclusion:
In the present appeal, there is nothing on record to show that the appellant had a license to possess the gun he was found in possession of and I had held that the gun falls within the definition of “firearm” under the Robbery and Firearms (Special Provisions) Act. The three ingredients stated above were established. Therefore, the conditions under the Act were met. The Appellant was rightly convicted for illegal possession of firearms.
On the offence of armed robbery pursuant to Section 1(2) of the Act. … All the three
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ingredients were established by the prosecution at the trial Court…
In sum, having resolved all the issues against the appellant, I hold that the appeal is without merit. I dismiss it. I affirm the conviction and sentence of the appellant by the trial Court.
The Appellant’s notice of appeal is predicated upon a total of 8 grounds, thereby urging this Court to allow the appeal and set aside the conviction and sentence passed thereupon by the trial Court and affirmed by the Court below.
On February 11, when the appeal came up for hearing, the learned counsel addressed the Court and adopted the articulated argument contained in their respective briefs, there by warranting this Court to reserve judgment to today.
The Appellant’s brief of argument, settled by M. I. Hanafi Esq on 29/05/2020, was actually deemed properly filed and served on 24/09/2020. It spans a total of 40 pages. At page 5 thereof, four issues have been couched:
(i) Whether the Court of Appeal rightly affirmed the conviction of the Appellant in view of the admission of the evidence tending to show the bad character of the Appellant at the trial; distilled from
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ground 6 of the grounds of appeal.
(ii) Was the Court of Appeal right when it affirmed the holding of the trial Court that the prosecution proved the case of conspiracy and armed robbery beyond reasonable doubt having regard to the variance on the date and the venue of the offence as contained in the particulars of the offence and the date and venue proved at the trial; Grounds 3,4,5 and 8;
(iii) Whether the Court of Appeal properly affirmed the conviction and sentence of the Appellant for the offence of illegal possession of Firearm under Section 3 (1) of the Robbery and Firearms (Special provision Act) 2004 when the prosecution did not prove that the possession of the gun, exhibit 2, allegedly found on the Appellant is prohibited under the provisions of Sections 3, 4 and 5 of the Firearms Act Cap 28 Laws of the Federation 2004; Ground 7
(iv) Whether the Court of Appeal understood and considered the complaint raised in issue 1 before it and if not whether the non-consideration of the issue occasioned a miscarriage of justice. Grounds 1 and 2.
The issue No. 1 is argued at pages 5-11 of the said brief, to the effect that from the
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evidence adduced at the trial, it is apparent that the trial Court allowed the prosecution to ask the Appellant under cross-examination tending to show the Appellant was a hardened criminal, or given to armed robbery. It is submitted, that all those pieces of evidence showing facts of other criminal offences committed by the Appellant are irrelevant and inadmissible in law. See Section 82 of the Evidence Act; VIVIAN ODOGWU VS THE STATE (2015) 14 NWLR (Pt. 1373) 74 @ 107 Paragraphs E -G.
The Court is urged to be so persuaded by that authority.
It is argued that in the instant case, nothing warranted the question of bad character of the Appellant from the evidence-in-chief. The Appellant never gave evidence of his own character, thus the bad character thereof is not a fact in issue.
Further argued, that the evidence of bad character received at the trial did influence the mind of the trial Court, and occasioned a miscarriage of justice. Unfortunately, the conviction of the Appellant was affirmed by the Court below, despite the grave miscarriage of justice evident on the record.
In the circumstances, the Court is urged to so hold and set
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aside the vexed judgment.
The issue No 2 is argued at pages 11 – 19 of the brief, to the effect that the trial Court observed the disparity between the date and the venue contained in the particulars of the offence in relation to the date and venue proved at the trial. Nevertheless, the Court below affirmed the conviction of the Appellant.
It is posited, that Section 227 of the Administration of Criminal Justice Law, Laws of Kwara State, is designed to save the charge from non-material errors in the drafting of the charge, such as error of duplicity, non-joinder, misjoinder, et al. However, the rule is allegedly not meant to render the fundamental requirements of a charge in-operative. See IBRAHIM VS STATE (2015) 11 NWLR (Pt. 1469) et al.
Further posited, that in the instant case, the Appellant was charged for an entirely different robbery other than the robbery he could have been associated with. Thus, the Court below was wrong in applying the ratios of the decisions relied upon to the present case, since the factual situations are entirely different and the cases are distinguishable from this case.
In the circumstances, the
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Court is urged to so hold.
The issue No. 3 is argued at pages 19 – 34 of the brief, thereby questioning the propriety of convicting the Appellant for the alleged illegal possession of firearms, contrary to Section 3 (1) of the Robbery and Firearms (Special Provisions) Act, 2004 (Supra).
It is submitted, that from the definition of the offence of illegal possession of Firearms under Section 2 of the Firearms Act (Supra), mere possession of firearms is not an offence. See BILLE VS THE STATE (2016) 15 NWLR (Pt. 1536) 363 @ 387 paragraph C.
It is argued, that from the provisions of Sections 3, 4, and 5 of the Firearms Act (Supra) and parts I, II and III of the Schedule thereto, the firearms mentioned therein are not ordinarily prohibited. And possession of any of them without a license would not constitute an offence under the Firearms Act (Supra).
Further argued, that the phrase “the Commissioner of Police may by order”, in Section 5 of the Act, the word “may” as couched therein is permissive or directory. It does not oblige or compel the Commissioner of Police to prohibit the firearms. Thus, until the Commissioner of Police so makes the
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order, the possession of such firearm is not an offence. See JESSICA TRADING CO. LTD VS. BENDEL INSURANCE CO. LTD (1996) 10 NWLR (Pt. 476) 1; ABEL OMOSHOLA VS. COMMISSIONER OF POLICE (1977), 4 & 5 SC 26; MOMODU VS THE STATE (2008) All FWLR (Pt. 447) 67 @ 116 Paragraphs E – G; OKASHETU VS THE STATE (2016) 15 NWLR (PT. 1534) 124 @ 303.
By the far-reaching argument at pages 26 — 34 (Paragraphs 3.44 – 3.58) of the said brief thereof, the Appellant has urged upon this Court to depart from, and overrule the decisions thereof in BILLE VS THE STATE (2016) 15 NWLR (Pt. 1536) 363; THE STATE VS OLADOTUN (2011) 10 NWLR (Pt. 1256) 542; OKASHETU VS THE STATE (2016) 15 NWLR (PT. 1534) 126 @ 149 Paragraph D.
It is posited that this Court has the necessary jurisdiction to depart from and overrule its previous decisions, though sparingly and with great hesitation. See TEWOGBADE VS OBADINA (1994) 4 NWLR (Pt. 338) 326 @ 351 Paragraphs D – F; ODI VS OSAFILE (1985) 1 NWLR (Pt. 1) 17; SHEMA VS FRN (2018) 9 NWLR (Pt. 1624) 337, et al.
Further posited that despite the need to adhere to the principle of stare decisis, the Court is urged not to perpetuate
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the error in OKASHETU and other cases, otherwise miscarriage of justice inherent therein would continue to rule in subsequent cases. See MRS BUCKNOR MACLEAN VS INLAKS LTD (1980) All NLR 184 Per Idigbe, JSC @ 198.
The Court is urged to so hold.
The issue No 4 is canvassed at pages 34 — 38 of the brief. It is submitted in the main that from the excerpt of the judgment (at page 127 of the record), regrettably, the Court below failed to realise the basis of the Appellant’s complaint and treated same as a defence of alibi, which it found belated. This led to a miscarriage of justice. See LADO VS THE STATE (1999) 9 NWLR (Pt. 619) 369 @383 Paragraph F; OFORLETE VS THE STATE (2000) 12 NWLR (Pt. 681) 415 @ 429 paragraph H; et al.
Allegedly, the failure to consider the Appellant’s defence is a denial of his constitutional right to fair hearing. SeeEKIYOR VS BOMOR (1997) 19 NWLR (Pt. 519) 10; MOHAMMED VS KANO NATIVE AUTHORITY (1968) 1 ALL NLR 424 @ 428 – 429; ONAGORUWA VS IGP (1991) 5 NWLR (Pt. 193) 593 @ 640, et al.
The Court is urged to so hold.
Conclusively, the Court is urged upon to acquit and discharge the Appellant.
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Contrariwise, the Respondent’s brief, settled by Jimoh Adebimpe Mumini Esq on 09/11/2020, spans a total of 18 pages. At page 2, the Appellant’s four issues have been adopted.
On issue No. 1, it is submitted in the main, that the Appellant’s complaint on the issue tantamount to a storm in a tea cup. Further submitted, that the alleged wrongful admission of the Exhibit DWC1 has not amounted to a miscarriage of justice in the peculiar circumstances of this case. That there was no objection from Appellant’s counsel when the issue was raised at the trial. See LAWAL VS THE STATE (1966) 1 All NLR 107 per Brett, JSC @ 110 113; OKAROH VS THE STATE (1990) LPELR -2423.
In the circumstance, the Court is urged to resolve the issue No. 1 in favour of the Respondent.
The issue No. 2 is argued at pages 5 — 7 of the said brief, to the effect that the grouse of the Appellant on the issue was what he deserved as a conflict between the offence charged and the offence proved, and variation in dates and venue of the robbery as contained on the charge sheet.
It was submitted that the variation in dates and place of the robbery cannot be regarded as
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fundamental, particularly when there is nothing on record to show that the Appellant was misled nor has that omission occasioned a miscarriage justice. Thus contended, that the conclusion thereby reached on the issue at pages 293-294 of the record is in tandem with the law, and ought not to be disturbed.
In the circumstance, the Court is urged to so hold, and resolve the issue No. 2 in favour of the Respondent.
The issue No. 3 is argued at pages 7-9 of the said brief, to the effect that the Court below was right to have affirmed the judgment of the trial Court on illegal procession of firearms, contrary to Section 3(1) of the Robbery and Firearms (Special Provisions) Act, CAP. R11, Laws of the Federation of Nigeria, 2004.
It is argued that a firearm, albeit a locally made gun or any other gun, must be capable of firing ammunition. See JIYA VS. THE STATE (2020) 13 NWLR (pt. 1740) 159 @ 205 paragraphs E-F.
Further argued, that the invitation by the Appellant for the Court to revisit its earlier decisions in BILLE VS. THE STATE (supra); THE STATE VS. OLADOTUN (supra); and OKASHETU VS. THE STATE (supra), is uncalled for, in view of the
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clear provision of Section 2 of the Firearms Act CAP 146, Laws of the Federation, 1990.
The Court is urged to so hold and resolve the issue 3 in favour of the Respondent.
Lastly but not the least, the issue No. 4 was argued at pages 10-12 of the brief, to the effect that the Court has a wide unfettered discretionary power to formulate its own issues in the interest of justice. Provided however, that those issues relate to the grounds of appeal and flow there from. See OMOWO-RARE VS. ONWOREWO (2010) 3 NWLR (pt. 1180) 58 @ 80; AGBARE VS. NIMRA (2008) 2 NWLR (pt. 1071) 378.
Allegedly, in the instant case, the Appellant not only raised the defense of alibi for the first time in Court, he refused to furnish the Court with particulars of the alibi so raised for the first time before the trial Court. Thus, the Court below was on a firm footing to have affirmed the decision of the trial Court.
In the circumstances, the Court is urged to resolve the issue No. 4 in favour of the Respondent.
The reply brief thereof, filed on 17/1/2020 by the Appellant spans a total of seven pages. The submission of the learned counsel is in the main to the
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conclusive effect, that the reception of the evidence of bad character is prejudicial and thereby led to miscarriage of justice, See LAWAL VS. THE STATE (1966) 1, NLR 107 @ 110; R. VS. COHEN (1938) 3 All ER 380 @ 381; R VS. ELLIS (1910) 2 KB 746 @ 763, et al.
The Court is urged upon to so hold, that the prosecution having asserted that the gun (found in the possession of the Appellant) was a locally made gun, must of necessity show that it falls into the category of firearms that cannot be possessed without permission or licence.
Having critically albeit dispassionately, considered the complex nature of the instant appeal, the far reaching submissions of the learned counsel contained in the respective briefs thereof, I am amenable to adopting the Appellant’s four issues for determination of the appeal, anon.
ISSUE NO 1
The first issue, as copiously alluded heretofore, raises the very crucial question of whether or not the Court below was right when it affirmed the conviction of the Appellant in view of the admission of the evidence tending to show the Appellant’s bad character at the trial. The first issue is distilled from ground 6 of
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the notice of appeal.
Instructively, the instant issue was raised as a fresh issue by the Appellant, consequent upon the leave granted there to on 19/06/2019. The said issue relates to the evidence of bad character allegedly elicited from the Appellant and the co-defendants thereof under cross-examination.
The present Appellant was the 2nd Defendant on record at the trial in question. The Appellant while responding to a question by the prosecution under cross examination, had this to say (at page 127, lines 7 — 18 of the record):
It is true I attended Ajiogo Primary School Ketu Lagos. I did not attended Orisegun High School Ketu. I attended Immaculate High School Maryland Lagos. I am a native of Ilorin in Kwara State but I don’t know my Local Government. I lived all my life in Lagos. I know how to repair wrist watch, my father is a wrist watch repair. It is not true that I was sent to Ilorin to come and learn Arabic. My sister is still at Ilorin, her name is Fausa. I always go to Bovina Club every Friday to play as a DJ., may be am an employee but I go there only on Fridays. It is true I have never met the police who arrested me before
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the day I was arrested (demeanour noted).
I have never met the police who told me to sign before. It is not true that the gun was recovered from me. It is true I have another case of armed robbery against me before another Court.
Exhibit DWC 1 (the charge sheet regarding another armed robbery case No. KWS/7c/2014 was also tendered vide the 1st Defendant under cross examination.
According to the Appellant’s learned counsel, all those pieces of evidence showing facts of other criminal offences committed by the Appellant are not relevant, and therefore inadmissible under Section 82 of the Evidence Act (Supra).
The provisions of Section 82 of the Evidence Act are to the following effect:
82 (1): Except as provided in this section, evidence of the fact that a ‘defendant is of bad character’ is inadmissible in criminal proceedings.
(2). The fact that a Defendant is of bad character is admissible:
(a) when the bad character of the Defendant is a fact in issues or
(b) when the Defendant was given evidence of his good character.
(3) a Defendant may be asked questions to show that he is of bad character in the
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circumstances mentioned in paragraph (c) of the proviso to Section 180.
(4). Whenever evidence of bad character is admissible evidence of previous conviction is also admissible.
Invariably, the noun ‘Character’ means the qualities that aggregate to make an individual human being distinctive from others, most especially in regard to morality and behaviour. In the case of FRANKLIN VS. LYNAUGH (1988) 487 USA 164, 174, 108 SC 1 2320 @ 2327, the US Supreme Court aptly defined character as the disposition, reputation, or collective traits of a person as they might be gathered from close observation of that person’s pattern of behaviour.
Thus, a ‘good character’ invariably denotes an individual person’s tendency to engage in lawful and moral (virtuous) behaviours. Contrariwise, the term ‘bad character’ denotes an individual person’s propensity for, or tendency toward, unlawful or immoral behaviour. See BLACK’S LAW DICTIONARY 11th edition (2019) @ 291.
Instructively, questions regarding moral (good) character have recently occupied a central place in philosophical discourses. The reason for this development is traceable to the resurgence of
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publications on modern moral philosophy. Most particularly, in 1958 G.E.M Anscombe published a seminal article “MODERN MORAL PHILOSOPHY”. It was postulated therein by Anscombe that Kantianism and utilitarianism, the two major traditions in Western Philosophy, perilously placed the foundation for morality in legalistic notions such as duty and obligations:
To do ethics properly, Anscontbe argued, one must start with what is for human being to flourish or live well. That meant returning to some questions that mattered deeply to the Ancient Greek moralist. These questions focused on the nature of “Virtue” …of how one becomes virtuous… and of what relationships and institutions may be necessary to make becoming virtuous possible:
See STANFORD ENCYCLOPEDIA OF PHILOSOPHY @ WIKIPEDIA. Aristotle (1.384 – 322 BCE) defines good moral character:
Excellence (of character) then, is a state concerned with choice, lying in a mean relative to us, this being determined by reason and in the way in which the man of practical wisdom (Phronimos) would determine it.
Now it is a mean between two vices, that which depends on excess and that which
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depends on defect.
See NICOMACHEAN ETHICS 11.6; STANFORD ENCYCLOPEDIA OF PHILOSOPHY, op cit.
In the instant case, apart from the evidence viva voce of the Appellant, Exhibit DWC1 was equally tendered by the prosecution vide the 1st Defendant under cross-examination. The said Exhibit DWC1 was in regard to another criminal charge(KWS/7C/2014) against the Appellant and Co-accused persons facing armed robbery prosecution.
The position of the law is very much unequivocal on the issue. As copiously alluded heretofore, evidence of the fact that a defendant is of bad character is generally inadmissible in a criminal proceeding. However, there are some exceptions to this general principle. The fact that a defendant is of bad character becomes admissible: (a) When the bad character of the defendant is a fact in issue; or (b) when the defendant (unwittingly) has given evidence of good character thereof. A defendant may equally be asked questions to show that he is of bad character in the circumstances mentioned in paragraph (c) of the proviso to Section 180 of the Evidence Act.
The hallmark of these exceptions is that whenever evidence of bad
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character is admissible, evidence of previous conviction becomes equally admissible. See Section 82 (2), (3) & (4) of the Evidence Act (supra); ODOGWU VS THE STATE (2013) LPELR – SC 1221 2009 @ 33 – 34 Paragraphs; CHUKWUEKE VS THE STATE (1991) 7 NWLR (Pt. 205) 607 @ 618 Paragraphs E – F.
Most particularly, in the case of ODOGWU VS THE STATE (Supra), it was aptly held by this Court that the character of the Appellant was not at all relevant or in issue. That what was in issue was whether or not she killed the deceased person. And that the Appellant –
had not testified at the time the witnesses gave evidence and so she could not have made her character an issue in the trial, nor did she do so in her statements other than a denial of the charge. See Section 82 (a) and (b) of the Evidence Act. Per Ngwuta, JSC (of blessed memory) @ 33 – 34 paragraphs B-B.
The law is equally well settled that where inadmissible evidence is admitted, it behooves the trial Court to expunge such evidence from the record and consider if there is any viable evidence upon which the charge could be sustained. In essence, the wrongful admission of an evidence
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ought not to totally affect the decision of the Court unless the use of such evidence has resulted in occasioning a miscarriage of justice. See UGBALA VS. OKORIE(1975) 22 SC 1; OKAROH VS. THE STATE(1990) LPELR 2423; OKEGBU VS. THE STATE (1979) 11 SC.
In the instant case, there is no doubt that even if the evidence allegedly given under cross examination by the Appellant is expunged from the record of proceedings, there would still be other pieces of veritable evidence to sustain the conviction of the Appellant.
In the circumstance, the first issue ought to be and same is hereby resolved against the Appellant.
ISSUE NO 2
The second issue raises the question of whether or not the Court below was right when it affirmed the holding of the trial Court that the prosecution proved the case of conspiracy and armed robbery beyond reasonable doubt against the Appellant, having regards to the variance on the date and venue of the offence, as contained in the particulars of the offence, date and venue proved at the trial. The second issue is distilled from grounds 3,4,5 and 8 of the notice of appeal.
It is a fundamental principle of
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criminal law, that every person who is charged with a criminal offence shall be presumed to be innocent until he is duly proved guilty beyond reasonable doubt. See Section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
A fortiori, by virtue of Section 138(1) of the Evidence Act, if the commission of an offence by a party is directly in issue in any criminal or civil proceeding, it must be proved beyond reasonable doubt. See CHUKWU VS THE STATE (2007) 13 NWLR (Pt. 1052) 430; ALAKE VS THE STATE (1991) 7 NWLR (Pt.205) 567; UKPE VS THE STATE (2001) 18 WRN 84; AYUBKHAN VS THE STATE (1991) 2 NWLR (Pt. 172) 127 @ 144; BAKARE VS THE STATE (1987) 1 NWLR (Pt. 52) 579; EDE VS. FRN (2000) 18 WRN (Pt. 13); ITU VS THE STATE (2016) 5 NWLR (Pt. 1506 443 @ 465 et al.
By the combined effect of the provisions of section 36(5) of the 1999 Constitution (Supra) and Section 138 (1) of the Evidence Act(supra). The prosecution must prove its charge against the Appellant beyond reasonable doubt, otherwise, the Appellant ought to be acquitted and discharged.
It must be reiterated, that the heavy burden squarely placed upon the
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prosecution under Section 36(5) of the 1999 Constitution (Supra), and Section 138 (1) of the Evidence Act (Supra), does not shift. It is as constant as the ‘Northern Star’, or to borrow the words of the Court of Appeal “as constant as the June/July rains of Nigeria.” See ALAKE VS. THE STATE (1991) 7 NWLR (Pt. 205) 567 Per Niki Tobi, JCA (as the learned Lord then was) @ 591 paragraph Q.
In the case of CHUKWU VS THE STATE, the trite fundamental doctrine was aptly re-echoed:
In ensuring that the prosecution proves its case beyond reasonable doubt against an accused person, the trial Court, nay the Appellate Court, is enjoined to ensure that nothing is taken for granted. See Martins Vs. The State (1997) 1 NWLR (Pt. 481) page 355 at 365 paragraphs E — F; Bakare Vs The State (1988) 3 NWLR (Pt. 52) 579; (1987) 3 SC at 33; Mbenu vs. The State (1988) 3 NWLR (Pt. 84) page 615 at 626 paragraphs C — D, in which the Supreme Court held emphatically, inter alia, that –
“Besides, this being a capital offence, the onus on the prosecution throughout is to establish the guilt of the accused persons beyond all reasonable doubt though not beyond any
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shadow of doubt. Per Nnamani, JSC (of remarkable memory).”
See CHUKWU VS. THE STATE (2006) LPELR – 77 (CA) Per Saulawa, JCA (as he then was).
As alluded to above, the Appellant was charged under Sections 6 (a) and 1 (2) of the Armed Robbery and Firearms (Special Provisions) Act, 2004:
“6. Any person who –
(a) aids, counsels, abets or provides any person with firearms for use to commit an offence under Sections 1,2,3 and 4 of this Act; or
(b) conspires with any person to commit such an offence; or
(c) supplies, procures or provides any person with firearms for use to commit an offence under Section 1 or 2 of this Act, whether or not he is present when the offence is committed or attempted to be committed, shall be deemed to be guilty of the offence as a principal offender and shall be liable to be proceeded against and punished accordingly under this Act.
1 (1) Any person who commits the offence of robbery shall upon trial and conviction under this Act be sentenced to imprisonment for not less than 21 years.
(2) If
(a) any offender mentioned in sub section (1) of this section is armed with any firearms or any
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offensive weapon or is in company with any person so armed; or
(b) at or immediately before or after the time of the robbery the said wounds or uses any personal violence to any person, the offender shall be liable upon conviction render this Act to be sentence to death.
Under the provisions of Section 6(a) of the Robbery and Firearms (Special Provisions) Act (Supra), the Prosecution (Respondent) has the onus of proving beyond reasonable doubt the following ingredients:
(i) The existence an agreement between two or more persons to do an illegal act or an act which is not illegal by illegal means;
(ii) That the illegal act was done in furtherance of the agreement and that each of the defendants (accused) participated in the illegality.
See ABDULLAHI VS THE STATE (2008) 17 NWLR (Pt. 115) 203 @ 221 Paragraph F; GBADAMOSI VS. THE STATE (1991) 6 NWLR (Pt. 196) 182; AWOSIKA VS THE STATE (2010) 8 NWLR (Pt. 1198) 49 @ 78.
In my considered view, Section 6 of the Robbery And Firearms (Special Provisions) Act (Supra) is virtually in pari materia with Section 8 of the Accessories And Abettors Act 1861, as amended by the Criminal Law Act
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1977 of the United Kingdom, which provides:
“8. Whosoever shall aid, abet, counsel, or procure the commission of any indictable offence, whether the same be an offence of Common Law or by virtue of any Act passed or to be passed, shall be liable to be tried, indicted, and punished as a principal offender.”
In the case of R. VS. GNANGO Appeal No. (2011) UKSC.59,
the Supreme Court aptly postulated on the fundamental doctrine of Parasitic Accessory Liability (which is akin to the principle of Criminal Conspiracy):
The ingredients for parasitic accessory liability are that two parties participate in the commission of crime A and B in the course of committing it, D1 commits crime B which D2 foresees that he might commit…
There is no reason in general why the parasitic accessory liability principle cannot be applied where crime A is affray and Crime B is murder. All that is required is proof of (i) a common purpose to commit an affray which is shared by D1 and D2 in the sense that they agreed to commit the offence, and (ii) a murder committed by D1 in the course of the affray commission of which is foreseen as a possibility … All the
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members of the group who foresee ….. that he might use the knife to commit a murder would also be liable for murder. The fact that they were also guilty of an affray would be no bar to their liability for murder.
See R. VS. GNANGO (2011) UKSC 59; (2011) LPELR – 17863 (UKSC), Per Lord Dyson @ 67 – 68 paragraphs F – E.
For a conviction for the charge of armed robbery to creditably be sustained, the prosecution is equally required to prove beyond reasonable doubt the following ingredients:
(i) That there was a robbery or series of robberies;
(ii) That the robbery was armed robbery; and
(iii) That the Defendant participated in the said armed robbery.
See – THE STATE VS SALAWU (2011) 17 NWLR (Pt. 1279) 883; IKPO VS. THE STATE (2016) 10 NWLR (Pt. 1521) 501 @ 519.
In the instant case, the judgment of the trial Court is contained at pages 138 – 160 of the record of appeal. The judgment of the Court below is contained at pages 271 – 304 of the record of appeal.
With particular regard to the instant second issue, the finding of the Court below is at pages 293 —294 of the record.
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It was aptly found by the Court below (at pages 294 — 295 of the record) in regard to the instant issue, that the Appellant’s grouse was not that the armed robbery for which he stood trial did not take place at all, or that he was not involved therein. The only Appellant’s grouse was that the prosecution defectively claimed the incident took place at Sawmill Garage Area instead of Awolowo Road, Tanke Area, both in Ilorin. Likewise, the Appellant raised the issue of the date on the charge sheet being different (15/03/14) from the date given in evidence by the prosecution witnesses. As copiously alluded to above, the Court below conclusively stated:
Also, it is noted that the prosecution witnesses were consistent as to the incident having taken place on 5th March, 2014. There was no contradiction as to the date of this incident amongst the prosecution witnesses.
I hold that the place of the incident being Awolowo Road, Tanke Area, Ilorin as opposed to Sawmill Garage, where the Appellant and his colleagues were arrested with the robbed car and other items and the date given in evidence as opposed to the date on the charge sheet are not enough reasons to absolve the
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appellant of the offences charged. I hold that there was a nexus between the offences charged and the conviction of the appellant by the trial Court.”
In my considered view, the foregoing findings of the Court below are aptly cogent, unassailable and duly in league with the evidence on record. And I so hold.
In the circumstances, the second issue is hereby resolved against the Appellant
ISSUE NO 3
The third issue raises the question of whether or not the Court below properly evaluated the conviction and sentence of the Appellant for the offence of illegal possession of firearms under Section 3(1) of the Robbery and Firearms (Special Provisions) Act. 2004 (Supra), when the prosecution did no prove that the possession of the gun (Exhibit 2) allegedly found on him was prohibited under Sections 3, 4 and 5 of the Firearms Act CAP 28 Laws of the Federation, 2004. The third issue is distilled from ground 7 of the notice of appeal.
The trial Court at page 157 (lines 1 – 33) of the record, found as a fact, to the following effect:
The gun and cartridges were tendered and admitted as Exhibits 2 and 3. PW3 said was pointed on his head
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by the 1st accused… PW3, said he was held at gun point, PW2 and PW5 said the accused in the stolen car fired a gun at them, the gun was recovered (when their bodies were searched) and it was tendered and admitted as exhibit 2. Section 2(2) (a) punishes an accused who though not in possession of firearm but he is in the company of a person is armed. Therefore, in the case at hand, the fact that one of the accused was carrying gun, one of them was carrying axe (exhibit 4) which is an offensive weapon, the 1st – 3rd accused are involved in the offence of armed robbery contrary to section 1(2) (a) of the Act.”
On the part thereof, in affirming the foregoing findings of the trial Court, the Court below stated at page 303 (lines 8 — 14) of the record:
In the present appeal, there is nothing on record to show that the appellant had a license to possess the gun he was found in possession of and I had held above that the gun falls within the definition of firearm under the Robbery and Firearms (Special Provisions) Act. The three ingredients stated above were established, therefore the conditions of the Act were met. The Appellant was rightly
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convicted for illegal possession of firearms.
Invariably, the term “firearm” denotes a weapon that expels a projectile (such as a bullet or pellets by the combination of gun powder or other explosive). Also termed gun. See BLACK’S LAW DICTIONARY 11th edition 2019 @ 778.
Thus, by the foregoing definition, ‘a firearm’ is any kind of gun specifically designed to be readily carried and used by a person. Historically, the first firearms originated in the 10th century China, when bamboo tubes containing gunpowder and pellet projectiles were mounted on spears to make the portable fire lance. This was operable by a single person, which was later used to good effect in the SIEGE OF DE’AN in 1132: Modern firearms can be described by their caliber (i.e bore diameter). For pistols and rifles this is given in millimeters or inches (eg. 7.62 mm or .38 in.), or in the case of short guns by their gauge (eg. 12 ga and 20 ga.)… A firearm is a barreled ranged weapon that inflicts damages on targets by launching one or more projectiles driven by rapidly expanding high pressure gas produced by exothermic combustion (deflagration) of
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chemical propellant, historically black powder, now smokeless powder.
According to the United Nations International Protocol on Firearms:
“Firearm” shall mean any portable barrelled weapon that expels, is designed to expel or may be readily converted to expel a shot, bullet or projectile by the action of an explosive, excluding antique firearms or their replicas. Antique firearms and their replicas shall be defined in accordance with domestic law.”
Originally, the ‘Dane gun’ was a type of long-barrelled flintlock musket imported into West Africa by Danish traders prior to the mid-18th century. The dane guns were used extensively within the slave trade period as goods to trade as well as a means of acquiring new slave. In 1671, the Danish Africa Company was incorporated (formally chartered by King Christian v on March 11, 1671):
In the 17th and 18th centuries, the company flourished from the North Atlantic triangular trade routes. Slaves from the Gold coast of Africa (Ghana) were traded for molasses and rum in the West Indies …
Throughout the transatlantic slave trade, it is estimated that about 12.5 million Africans were taken
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captive and 10.7 million of them were transported to the Americas. The Danish slave trade constituted about 1 percent of this trade, with “about 100, 000 Africans embarked.” Denmark was reportedly the first European colonial empire to ban its slave trade in 1792 although this effect until 1803, and illegal trading continued into the nineteenth century.
See WIKIPEDIA.
Thus, against the backdrop of the far-reaching postulations, any lingering doubt regarding whether or not a ‘Dane gun’ is indeed qualified to be regarded as a ‘firearm’ within the purview of the law, ought to have been evaporated.
Hence, in my considered view, the concurrent findings of the Court below (at pages 303 lines 8 — 14 of the Record), to the effect that the trial Court rightly convicted the Appellant for the offence of being in possession of firearms are very much apt, cogent, unassailable, and duly supported by the evidence on record.
In the circumstances, the third issue ought to be, and same is hereby resolved against the Appellant.
ISSUE NO 4
The fourth issue raises the question of whether or not the Court below understood and considered the
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complaint raised in issue No. 1 before it, and if not, whether the non-consideration of the issue occasioned a miscarriage of justice. The fourth issue is distilled from grounds 1 and 2 of the notice of appeal.
The Appellant’s grouse herein is primarily predicated upon the issue No. 1 raised in the appeal before the Court below viz:
- “Whether the trial Court was right in convicting the Appellant and in placing on him the burden to prove his innocence. Grounds 2 and 9.”
The issue No. 1 in question was copiously alluded to at page 273 of the record of appeal. The Court below having extensively considered the said issue at pages 286 — 291 of the record, came to the finding to the conclusive effect:
In all the above pieces of evidence, none constituted a serious plea of alibi with faces to warrant an investigation by the police. Even if indeed the appellant was a DJ at Bovina Club and was on his way there when he was accosted by the policemen, it does not remove the possibility of the appellant having been of the scene of the crime at the time the alleged offences were committed … I hold that there were no facts to investigate. The
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Appellant’s defence of alibi fails, issue one is resolved against the appellant.
The evidence of the Appellant (DW1) was copiously alluded to by the Court below at page 287 (lines 8 — 15) of the record of appeal:
I am a DJ and clock and wrist watches repairer. In year 2014, March, I wanted to go and play at Bovina Club along Yidi Road, Ilorin. I took an Okada (Commercial Motor Cycle). On our way, we were almost at Bovina Club when some policemen stopped us. I told the policemen that what was our offence because I was going to Bovina to play.
I always go to Bovina Club every Friday to play as a DJ; may be am employee hut I go there only on Fridays.
The term ‘alibi’ is derivatively Latin, denoting ‘elsewhere’. It is essentially a defense predicated upon the physical impossibility of a defendant’s guilt by placing the defendant in (an entirely) different location other than the scene of the crime at the relevant point in time. Alibi invariably denotes the quality, state or condition of having been elsewhere at the material time an offence was committed. See BLACK’S LAW DICTIONARY 11th edition, 2019 @ 90.
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plethora of veritable authorities by this Court, that it is the duty of the prosecution to check on a statement of alibi by an accused person and disprove or attempt to disprove same. Nevertheless, there is so far no particular inflexible or invariable way of disproving an alibi. If the prosecution adduces cogent, sufficient evidence to fix a person at the scene of crime at the material time the offence was committed, his alibi is thereby logically and physically crushed, thus rendering such a plea ineffective as a defence. See PATRICK NJOVENS VS THE STATE (1973) 1 NMLR 331; GACHI VS. STATE (1965) NMLR 333; BELLO VS. THE STATE (1959) WRNLR 124; R. VS. TURNER (1957) WRNLR 34; NWABUEZE VS. THE STATE (1988) 7 SCNJ (Pt. 71) 248 @ 260.
Most interestingly, all these authorities were followed by this Court in the latter case of CHRISTIAN NWOSU VS. THE STATE (1976) 6 SC 109 and a plethora of other cases, to the extent that the defence of alibi was ceased to be:
The type of cheap panacea that it used to be in the hands of criminals. Now not only has the accused an evidential burden of eliciting some evidence with all necessary particulars which can be
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checked to show that she was somewhere else at the time the offence charged was committed at the locus of the crime but also, if the prosecution investigates the alibi and call some evidence in disproof of it, the Judge not disregarding the defence of alibi, is yet entitled to consider it from the backgrounds of other stronger evidence, if any, linking the accused person with the crime charged.
See NDUKWE VS THE STATE (2009) LPELR 1979 (SC) Per Ogbuagu, JSC @ 49 — 50 paragraphs E — F.
Most ironically, in the instant case, there is no doubt that the defence of alibi raised by the Appellant is baseless and a sheer after thought. The Appellant not only raised the purported alibi for the first time in Court, but he woefully failed to furnish the Court with particulars thereof. See SANI VS. THE STATE (2015) 15 NWLR (Pt. 14830 522 @ 546 Paragraphs E — G.
In the circumstances, the fourth issue is hereby equally resolved against the Appellant.
Hence, having effectively resolved all the four issues raised by the Appellant against him, there is no gainsaying the fact that the appeal grossly fails, and it is hereby dismissed by
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me.
Consequently, having dismissed the appeal, the judgment of the Court of Appeal Ilorin Judicial Division, delivered on May 18, 2018 in appeal No. CA/IL/C/19/2017, ought to be and same is hereby affirmed.
SC.119C/2019
