Mikairu Momodu V. The State (2007)
LawGlobal-Hub Lead Judgment Report
HELEN MORONKEJI OGUNWUMIJU, J.C.A.
This is an appeal against the judgment of the High Court of Justice, Ilorin delivered on 22nd November 2005 wherein the learned trial judge convicted the Appellant on all the charges preferred against him by the prosecution.
The Appellant appealed against the said judgment and filed five grounds of appeal.
At the hearing of this appeal, the Appellant’s counsel Mr. Rowland Otaru, SAN. Adopted the Appellant’s brief dated 17th May 2007 filed on 21/5/07 and deemed filed on 28/5/07. The Respondent’s Counsel Mr. J. A. Mumini, Director of Prosecutions Kwara State adopted the Respondent’s brief filed on 6/6/07.
The facts that led to this appeal are as follows:
The Appellant was arrested on 30/6/2004 at the University of Ilorin He was arraigned before the High Court of Kwara State sitting at Ilorin the same month on the following charges:
“CHARGE ONE:
That you Mikairu Momodu on or about 30th June, 2004 at about 06:30 am at the University of Ilorin campus (Mini) within the jurisdiction of this Honourable Court you were found in possession of one locally made pistol, five rounds of live cartridges and you thereby committed an offence contrary to Section 3 of the Firearms Act Cap 146 and punishable under section of the Armed Robbery and Firearms (Special Provision) Act Cap 398, 1990.
CHARGE TWO:
That you Mikairu Momodu on or about 30th June, 2004 at about 06:30 am you committed criminal trespass by entering into University of Ilorin (Campus) land and thereby committed an offence punishable under Section 348 of the Penal Code.
CHARGE THREE:
That you Mikairu Momodu on or about 30th June, 2004 at about 06:30a.m. at the University of Ilorin Campus (Mini) professed to be a member of Buccaneer Cult group an association not known to the University and you thereby committed an offence contrary to Section 7(1) of the Secret Cults and Secret Societies in Educational Institutions (Prohibition) Law 2004.”
The Prosecution called five witnesses and tendered five material exhibits including a locally made pistol – Exh.2 and five rounds of live cartridges – Exh.3. The court also admitted as Exh.6 the retracted confessional statement of the Appellant. On the other hand, the Appellant gave evidence in his own defence and called no witnesses. At the conclusion of evidence, the learned trial judge in a considered judgment found the Appellant guilty of the three count charge levied against him and convicted the Appellant. The Appellant was thereafter sentenced to one year imprisonment on the first count. He was sentenced to 10 years imprisonment on the charge of being in unlawful possession of firearms. Finally he was sentenced to 10 years imprisonment and N50,000.00 fine for the offence of being a member of a secret cult. The sentence to run concurrently from 30th June 2004 the date of his arrest and subsequent incarceration pending and during trial.
Being dissatisfied against that judgment, the Appellant filed five grounds of appeal. The grounds of appeal and particulars thereof are set out below:
“1. The learned trial judge erred in law in holding that it has jurisdiction in respect of criminal causes and matters pertaining to offences under the Firearms Act Cap, 146, Laws of the Federation, 1990.
PARTICULARS OF ERROR IN LAW
i. Under and by virtue of the provisions of Section 251 (1) & (3) of the Constitution of the Federal Republic of Nigeria, 1999, only the Federal High Court has exclusive jurisdiction in respect of causes and matters pertaining to arms, ammunition and explosives.
ii. The exercise of jurisdiction of a court is statutory.
iii. Where a court lacks jurisdiction in respect of a cause or matter, its decision is a nullity.
iv, The judgment of the lower court led to a miscarriage of justice.
- The learned trial judge erred in law in convicting the Appellant on all the charges preferred against the Appellant in spite of very material contradictions in the evidence of the prosecution witnesses.
PARTICULARS OF ERROR IN LAW
i. The onus of proof in a criminal trial is on the prosecution. It is the duty of the prosecution to prove all the ingredients of an offence beyond reasonable doubt.
ii. The evidence of PW2, PW3, PW4 and PW5 were contradictory in every material particular.
iii. There was no evidence linking the Appellant to the bag tendered by the prosecution in evidence,
iv. The bag which the Appellant had on him on the date of the incident had a lock with numbers for locking and unlocking it and this was confirmed by some of the prosecution witnesses.
v. The inference drawn by the learned trial judge that the Appellant was the owner of the bag in which was found some items led to a graver miscarriage of justice.
vi. The items, which the accused person said were in his bag, were not found therein.
- The learned trial judge misdirected himself on facts in convicting the Appellant for being a member of secret cult (buccaneer), even when it was shown that he has no mark 101 inscribed on his back.
PARTICULARS OF MISDIRECTION
i. There was no evidence that the Appellant was and/or is a secret cult member (buccaneer).
ii. PW2: Kanu Paul stated in his evidence-in-chief that members of the buccaneer secret cult usually have a mark 101 inscribed on their backs.
iii The Appellant in his examination-in-chief and under cross examination by the prosecution removed his shirt in the full glare of the court and there was no mark 101 inscribed on his back.
iv. The prosecution failed to prove the ingredients of the offence of being a member of a secret cult against the Appellant beyond reasonable doubt.
- The learned trial judge erred in law in holding as follows.
“I submit that the law is trite that since the issue is not that of voluntariness or otherwise but merely that of not that volunteering any statement whatsoever, the trial within a trial was merely time wasting and unnecessary. This statement in this regard is therefore admissible in evidence and same is to be admitted having not offended any known Laws of Court”.
PARTICULARS OF ERROR IN LAW
i The learned trial judge did not advance any reason(s) on the admissibility of the statement of the accused.
ii. The evidence of the accused person during trial within trial was not challenged under cross-examination.
iii. The decision of the learned trial judge led to a grave miscarriage of justice.
- The learned trial judge erred in law in admitting the statement of the accused person and same marked as Exhibit ‘6’.” From the above grounds of appeal, the Appellant’s counsel distilled four issues for determination as set out below:
“(i) Whether having regard to the provisions of Section 251 (1) & (3) of the Constitution of the Federal Republic of Nigeria 1999, the lower court was vested with jurisdiction in respect of criminal causes and matters on which the Federal High Court is vested with exclusive jurisdiction.
(ii) Whether having regard to the evidence of the prosecution witnesses particularly the evidence of PW2 – KANU PAUL, the Appellant can be said to be a member of a Secret Cult known and called BUCCANEER.
(iii) Whether from the totally of the evidence of the prosecution witnesses, the prosecution proved all the charges against the Appellant beyond reasonable doubt.
(iv) Whether having regard to the findings of the learned trial judge, it was right for the learned trial judge to hold that Exhibit 6 (purported statement) of the accused was voluntarily made by the accused.”
The Respondent’s counsel, Mr. Mumini DPP Kwara also crystallized four issues for determination. They are essentially the same as those identified by the Appellant’s counsel in the brief. However, the issues adumbrated by Respondent’s counsel seem to me to encapsulate more comprehensively all the areas in dispute to be explored in the consideration of this appeal. They are stated below. However I have taken the liberty to re-arrange them in order of priority and sequence thus:
- Whether the learned trial judge has the jurisdictional competence to try the Appellant on the 1st count charge of Illegal Possession of Firearms contrary to Section 3 of the Firearms Act Cap. 146, Laws of the Federation of Nigeria Punishable under the Armed Robbery and Firearms Act Cap. 398 Laws of the Federation of Nigeria, 1990 (this relate to ground 1 of the Grounds of Appeal).
- Whether having regard to the evidence before the trial court in trial within trial the learned trial judge was right to have admitted Exhibit 6 as a voluntary statement of the Appellant (Grounds 4 & 5).
- Whether having regard to the evidence led by the prosecution a case of belonging to secret cult contrary to Section 7 (1) of the Secret Cult and Secret Societies in Education Institutions (Prohibition) Law 2004 was established against the Appellant (this relate to Ground 3 of the Grounds of Appeal).
- Whether from the totality of evidence by the prosecution, it proved beyond reasonable doubt at the offences charged against the Appellant (relates to Ground 2).
Issue One:
Whether the learned trial judge has the jurisdictional competence to try the Appellant on the 1st count charge of illegal possession of firearms contrary to Section 3 of the Firearms Act Cap.146 Laws of the Federal Republic of Nigeria and punishable under the Armed Robbery and Firearms Act Cap.39B Laws of the Federation having regard to the provisions of S.251(1) & (3) of the 1999 Constitution and S.6 & S.7 of the Federal High Court Act Cap. F12 Laws of the Federation 2004.
Learned Appellant’s counsel Mr. Rowland Otaru SAN argued that the Appellant was charged in Count 1 at the lower court for unlawful possession of a locally made pistol and five rounds of live ammunition/cartridges contrary to S.3 of the Firearms Act and punishable under the Armed Robbery (Special Provisions) Act. He argued that if the locally made pistol is a firearm or an ammunition while the five cartridges are explosives, he then in view of S.251 (1) & (3) of the 1999 Constitution, the Federal High Court had exclusive jurisdiction to try the case. He also submitted that by virtue of S.6 & S.7 of the Federal High Court Act, only the Federal High Court has jurisdiction to try Count 1 of the charge against the Appellant. He argued that where a court lacks jurisdiction, the decision is a nullity. He cited the following cases: SHELL PETROLEUM DEVELOPMENT COMPANY NIGERIA LTD. VS. ISAIAH (2001) 5 SC PT.11 PG. 1; OGUNMOKUN VS. MILAD, OSUN STATE (1999) 3 NWLR PT. 594 PG. 261 AT 265; MADUKOLU VS. NKEMDILIM (1962) 1 ALL NLR PT. 4 PG. 587; ATTORNEY GENERAL OF LAGOS STATE VS. HON. JUSTICE L. J. DOSUMU (1989) 3 NWLR PT.111 PG.552 AT 566-567.
On the jurisdiction of the Federal High Court by virtue of S.230(1) & 230(1 )(A) of Decree 107 of 1993 which is in pari materia with S.251(1) and 251(3) of the 1999 Constitution; he argued that it can be seen that Section 230(1) has drastically altered our jurisprudence as far as the jurisdiction of the Federal High Court is concerned. It has conferred wider jurisdiction on the Federal High Court and in some aspects has in fact restricted the jurisdiction of the State High Court. Section 230(1A) empowers the Federal High Court to exercise jurisdiction and powers in respect of treason and criminal causes and matters in respect of which jurisdiction is conferred by Section 230 (1).
He argued that before the coming into effect of Section 230(1) of Decree 107 of 1993 and Section 251 (1) of the 1999 Constitution, a State high Court has unlimited jurisdiction under Section 236 (1) of the 1979 Constitution to try offences relating to an connected with arms, ammunition and explosives. He therefore, submitted that right from the 17th day of November, 1993 when Decree 107 of 1993 commenced which is a re-enactment under Section 251 (1)(a)-(s), (2) & (3) of the 1999 Constitution of Nigeria, a State High Court no longer have jurisdiction in respect of matters connected or related to “arms, ammunition and explosives”.
He argued that there is nothing connecting being in unlawful possession of firearms, ammunition, and explosives with armed robbery here. There was no iota or scintilla of evidence that the Appellant committed armed robbery in order to clothe the State High Court with jurisdiction.
Counsel also relied on the provisions of the Federal High Court Act particularly S.7 thereof to show that the Federal High Court has exclusive jurisdiction to try the case of possession of firearms and ammunition.
Learned Respondent’s counsel Mr. Mumini D.P.P., submitted on this issue that the trial court has the jurisdictional competence to try the Appellant on the 1st count charge of illegal possession of firearms contrary to S.3 of the Firearm Act Cap.146. He submitted that in determining the jurisdictional competence of any court to try any matter reference must be made to two essential features or classes of enactments. These are the constitution and the statutes. He cited FAWEHINMI V. AKILU (1989) 3 NWLR Pt. 112 Pg.643 at 671; A.G. FEDERATION & ORS. V. SODE & ORS. (1990) 1 NWLR Pt. 128 Pg. 500 at 538. He argued that both the Firearms Act Cap.146 Laws of the Federation of Nigeria 1990 and the Robbery and Firearms Act Cap 398 Laws of the Federation of Nigeria 1990 are extant laws by virtue of Section 318 (1) of the 1999 Constitution. Their respective provisions are maintained as amended under the Fire Arms Cap F.28 Laws of the Federation of Nigeria 2004 and Robbery and Firearms (Special Provision) Act Cap. R.11 Laws of the Federation of Nigeria 2004. Learned counsel also argued that the Appellant herein was charged under count 1 of the charge before the trial court for illegal possession of a locally made pistol contrary to Section 3 of the Firearms Act Cap 146 Laws of the Federation of Nigeria 1990. The provision of this section is in pari materia with the provision of Section 3 of the Firearms Acts Cap. F28 Laws of the Federation of Nigeria 2004 Section 28 (5) of Cap.146 LFN 1990 which is also in pari materia with Section 27 (5) of Cap. F28 LFN provides:
“In addition to the penalties prescribed in subsection (1) or (2) of this section any court of law may order the forfeiture of any firearms or ammunition to which the offence relates and any such forfeited firearm or ammunition shall be disposed of in accordance with the instructions of the Inspector General of Police.” (Underline supplied for emphasis)
He cited KIMDEY V. MILITARY GOVERNOR GONGOLA STATE (1988) 2 NWLR Pt. 77 Pg.45; OILFIELD SUPPLY CENTRE LTD. V. JOHNSON (1987) 2 NWLR Pt. 58 Pg. 625. He urged the court to hold that the Appellant was tried in the right court.
My Lords, on this issue the learned trial judge held thus –
“It is to be noted further that in the case of Emelogu vs. The State (1998) 2 NWLR Pt,78 Pg.524 at Pg.538, it was held by the majority decision of the Supreme Court as represented by Eso, JSC (Rtd.) that as at 1st October, 1979, Decree No.47 of 1970 as amended became a Law deemed made by a State House of Assembly and “Robbery” per se became a residual matter. It was held further that the Decree as amended though a Federal Legislation is to be regarded as a legislation made to operate in each State of the Federation and by Section 191 of the 1979 Constitution, the power to institute and undertake proceedings of armed robbery and other related matters is in the State Attorney-General. See also the case of Sele v. The State (1993) 1 NWLR Pt. 269 Pg. 261 at 291.
In view of the above decided authorities of the apex court of the land, I hold that the submissions of the learned counsel to the accused are of no moment and a misconception of the applicable laws. The court holds, that it has the requisite jurisdiction to try this offence punishable under the Robbery and Firearms Act”. (See Pg. 119 of the Records)
There is no gainsaying that the Firearms Act is an existing law of the National Assembly and S.28(3), (4) and (5) thereof confers jurisdiction on the State High Court and even a Magistrate Court to try criminal offences under the Act summarily. In fact, S.3 of the Robbery and Firearms Act Cap 398 LFN 1990 makes illegal possession of firearms punishable under the Robbery and Firearms Act notwithstanding whether the firearms was connected with the offence of robbery or not. Section 3 of the Robbery and Firearms Act Cap 398 LFN 1990 provides as follows:
“3. (1) Any person having a firearms in his possession or under his control in contravention of the Firearm 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 Only or to imprisonment for a period of not less than ten year, or to both.” (Underline supplied for emphasis)
Also under S.9 of the Robbery & Firearms (Special Provisions) Act Cap. R.11 LFN 2004 which is an amendment to S.8 of Cap. 398, offences under the Act are triable by the High Court of the State wherein the offence was committed. Thus the offence of illegal possession of firearms is triable by the State High Court.
Section 251(1) of the 1999 Constitution states as follows:
“Notwithstanding anything to the contrary in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any Court in civil causes and matters – (L) “arms, ammunition and explosives.”
On the other hand, Section 251(3) provides thus –
“The Federal High Court shall also have and exercise jurisdiction and powers in respect of Criminal causes and matters in respect of which jurisdiction is conferred by subsection (1) of this Section.” (Underlining supplied by me).
While S.251(1) talks about the exercise of exclusive jurisdiction in civil matters and causes in relation to the matters listed a – s S.251(2) and S.251(3) talk about having and exercising jurisdiction simplicita in cases of treason, etc and criminal causes in which the court has jurisdiction under S.251(1). The framers of the Constitution did not put shall exercise exclusive jurisdiction in subsections (2) and (3) of S.251 of the 1999 Constitution. We cannot import what was not included. See CGG NIG. V. OGU (2005) 8 NWLR Pt. 927 Pg. 366.
Sections 7 (1) (L), (3), (4), (6) (a) & (b) and 8 of the Federal High Court Act Cap. F12, Laws of the Federation, Volume 6, 2004 provides as follows:
“Section 7(1)
The court shall to the exclusion of any other court have original jurisdiction to try civil causes and matters –
(L) “arms, ammunition and explosives”
Section 7(3)
Where jurisdiction is conferred upon the court under subsections (1), (2) and (3) of this section, such jurisdiction shall be constructed to include jurisdiction to hear and determine all issues relating to, arising from or ancillary to such subject matter.
Section 7(4)
The jurisdiction conferred by subsection (3) of this section in respect of criminal causes and matters shall, without prejudice to the generality of that subsection and section 64(3) of this Act, include original jurisdiction in respect of offences under the provisions of the Criminal Code, the Penal Code or the Penal Code (Northern Region) Federal Provisions Act being offences in relation to which proceedings may be initiated at the instance of the Attorney-General of the Federation.”
It is clear from the above, that the jurisdiction conferred on the Federal High Court in respect of criminal causes and matters include only original jurisdiction in respect of such offences. Significantly the word exclusive was omitted from Section 7(4) which dealt with criminal matters while it was included in S.7(1) which dealt with civil matters. Thus the provisions of the Constitution and the Federal High Court Act are quite clear and to the effect that under S.251(1) the Federal High Court has exclusive jurisdiction in civil matters, while under S.251 (2) & (3) the
Federal High Court has concurrent jurisdiction with other courts including State Courts in relation to criminal matters in respect of items under S.251(1) of the 1999 Constitution.
In A.G. ONDO STATE V. A.G. FEDERATION & 36 ORS. (2002) FWLR Pt. III Pg. 1972 at 2162-2163 the Supreme Court observed as follows-
“During the military regime, armed robbery was dealt with as a Federal offence by virtue of the fact that the military government passed the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970 in an attempt to stem the menace of armed robbery all over the country. Other such Decrees on Robbery and Firearms followed. At the exit of the Military the Decree became known as an Act and deemed to be an Act of the National Assembly as if armed robbery remained a Federal Offence although the Attorney-General of a State was authorized to prosecute. But the 1979 Constitution did not place criminal law under either the Exclusive or Concurrent Legislative List. It was therefore a residual matter within the competence of the Houses of Assembly to legislate on.”
Even though in the 2nd Schedule to the 1999 Constitution arms, ammunition and explosives are under the Exclusive Legislative List, the 1999 Constitution like the 1979 Constitution did not place criminal law under the exclusive or concurrent legislative list. It automatically becomes a residual matter under the aegis of the state government. See also EYISI & ORS. v. THE STATE (2001) 12 SCNJ 104; EMELOGU v. THE STATE (1988) 5 SCNJ 79.
The jurisdiction of a court is determined by the constitution and the statute creating that court, See DALHATU V. TURAKI (2003) 15 NWLR Pt. 843 Pg. 310.
Where the provisions of a statute or the constitution are clear and unambiguous, effect should be given to them as such, unless it would be absurd to do so having regard to the nature and circumstances of the case. See NDIC V. OKEM ENT. LTD. (2004) 10 NWLR Pt. 880 Pg. 107 at Pg. 196. It is the duty of courts to invoke their interpretative jurisdiction to justify the intention of law makers. See also A.G. LAGOS STATE V. EKO HOTELS LTD. & ANOR (2006) 12 Pt. 1 SCM 1.
In interpreting the constitution, the courts should ordinarily adopt the broader or wider meaning except where something in the indicates that the narrower interpretation will best carry out the object of the constitution. In this case the removal of the word ‘exclusive’ from S.251(2) and 251(3) clearly shows that we ought to adopt a narrower view and not import into the subsection, words deliberately not included therein. See EHUWA V. ONDO STATE INDEPENDENT ELECTION COMMISSION (2006) 12 SCM Pt. 2 Pg. 151; BOLA TINUBU V. LMB SECURITIES (2001) 10 SCNJ 1. Moreover the golden rule in interpretation of statutes is to determine and reflect the intention of the lawmaker. When the intention is clear – as in this case, the non-inclusion of a vital word, resort cannot be had to wider or liberal interpretation. See INEC V. ALH. BALARABE MUSA (2003) 1 SCNJ 1. Finally on this issue, I have to agree with learned Respondent’s counsel DPP Kwara that once it is established that both the State High Court and the Federal High Court have concurrent jurisdiction in this matter, the court vested with jurisdiction to determine all the charges against the Appellant should assume jurisdiction and determine all the charges against the Accused person. The principal charge against the Appellant I quite agree is the one relating to being a member of a secret cult. It would be wrong to try an accused in different courts in respect of offences committed in the same transaction.
The court with jurisdiction to determine all issues or charges preferred against an Accused should try the Accused. The trial should not be conducted piece meal. See TUKUR V. GOVT. OF GONGOLA STATE NO.2 (1989) 4 NWLR Pt. 117 Pg. 517.
My Lords, it is my firm view that the trial court had jurisdiction to try the Appellant under Count 1 of the charge preferred against him for the offence of illegal possession of arms and ammunition. The first issue is resolved against the Appellant.
Issue Two
Whether having regard to the evidence before the trial court in trial within trial, the learned trial judge was right to have admitted Exh.6 as a voluntary statement of the Appellant.
Learned Appellant’s counsel argued that the trial judge was wrong in admitting the statement of the Appellant as a confessional statement contrary to 8.27 and 8.28 of the Evidence Act. He argued that the statement of the Appellant – Exh.6 was inadmissible as it was not a voluntary statement. He cited SOLOLA V. THE STATE (2005) ALL FWLR Pt. 269 Pg. 1751 at 1782 and UWAEKWEGHINYA V. THE STATE (2005) ALL FWLR Pt. 259 Pg. 1911 at Pg. 1930. He urged this court to allow the appeal and set aside the ruling of the lower court delivered on 11/3/05 and reject the statement admitted as Exhibit 6.
Learned Respondent’s counsel on this issue argued that the learned trial judge was right in expounding the position of evidence before him rather than making a judicial finding. He submitted that the trial court was right in concluding that by the state of evidence before the court, the court found that the allegation was in fact not that of voluntariness but that the accused alleged that no statement was made at all by him and concluded that the trial within trial was a mere waste of time since the position of the law where an Accused retracts his earlier statement is to admit the statement and determine what use to make of it at the conclusion of evidence. He argued that a wholistic evaluation of the trial within trial shows that the learned trial judge arrived at a proper conclusion. He submitted that the sacred duty of this court is to disregard findings not based on the evidence before the court. He cited KIMDEY V. MILITARY GOVERNOR GONGOLA STATE (1988) 2 NWLR Pt. 77 Pg.45; OILFIELD SUPPLY CENTRE TO. V. JOHNSON (1987) 2 NWLR Pt. 58 Pg. 625.
On this issue the learned trial judge held thus at Pg. 57-58 of the Record –
“In a situation like this, where the question is not that of voluntariness but that the Accused did not make the statement at all, the issue of a trial within a trial becomes unnecessary since it has been held that the question whether the Accused made the confession or not was a matter to be decided by the court in its fact finding capacity at the conclusion of the case – See The Queen v. Igweh, 5 FSC 55 at 66. See also: Gabriel Osakwe v. The State (1994) 2 SCNJ 57 at 70.71; Jona Dawa v. The State (1980) 8.11 SC 236.
On this ground, I firmly hold that this statement of the Accused person is admissible in law having not offended either Section 27 or 28 of the Evidence Act. On the other ground where the Accused alleged that –
“when the torturing was too much, I told him I am a Buccaneer. He then told me I should write whatever he told me and I agreed to do so”.
I am of the view that this is much in agreement with the holding of the court on the other issue just decided above.
What the court is saying is that from this piece of evidence of the Accused person, it would appear that what the accused wrote was being dictated to him by the PW1 in Trial within Trial and same was therefore not his making.
This is in agreement with my earlier view that the Accused person never volunteered a statement to the investigator as what is being sought to be tendered in evidence was the dictate of the investigator which he was made to write down and later signed. I submit that the law is trite that since the issue is not that of voluntariness or otherwise but merely that of not volunteering any statement whatsoever, the trial within a trial was merely time wasting and unnecessary. This statement in this regard is therefore admissible in evidence and same is to be admitted having not offended any known laws of court.”
My Lords, Section 27 (1) and Section 28 of the Evidence Act provide as follows-
“S.27(1) A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime.
S.28 A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority, and sufficient, in the opinion of the court, to give the Accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature.” (underlining mine for emphasis)
The question in issue here is whether or not the learned trial judge properly admitted Exh. 6 in evidence as the voluntary statement of the Appellant. When a statement of an Accused is sought to be tendered in evidence as a confessional statement by the prosecution, the Accused must at that point object to the tendering of the statement. The Accused or his counsel must give reasons for the objection at that point: See OKAROH V. THE STATE (1990) 1 NWLR Pt. 125 at 128; UGURU V. THE STATE (2002) 8 NWLR Pt. 769 Pg. 367; EJILIKWE V. THE STATE (1993) 7 NWLR Pt. 307 Pg. 554; OGUNTOLA V. THE STATE (2007) 12 NWLR Pt. 1049 Pg.617. The application for a trial within trial must be made by the counsel since the trial court has no duty to suo muto call for one, See also OLALEKAN V. STATE (2001) 18 NWLR Pt. 746 Pg. 793; ALARAPE V. THE STATE (2001) 5 NWLR Pt. 705 Pg. 79. Since he who asserts must prove, it is the duty of the prosecution in our adversarial system of justice to prove the voluntariness of the confessional statement sought to be tendered. It is also the duty of the learned trial judge at the conclusion of the trial within trial to make a finding as to whether or not the extra judicial statement sought to be tendered was voluntarily made by the Accused to make it admissible in evidence. Let us examine the records to see what transpired during the trial within trial. On page 42-43 of the records, learned Appellant’s counsel had objected to the admissibility of the document at the trial court because he alleged that the Accused was forced to make the statement, he was induced or forced to make same in the believe that he would be exonerated by the authorities and also that the authorities used electrical appliances on him. At page 47 of the record wherein the Appellant gave his own evidence on oath during the trial within trial, he stated thus –
“The statement I am holding now was written by the SSS and he asked me to transfer it in my own handwriting.
Mr Asuquo asked me to write it in my own handwriting (PW1) in TWT. When he took me to the interrogation room, he surprisingly brought out a gun and asked me for the owner.
I told him I not the owner of the gun. He said he was told I am a Buccaneer.
He then started beating me with electrical appliances and at the same time using ruler on my private part.
When the torturing was too much, I told him I am a Buccaneer.
He then told me I should write whatever he told me and I agreed to do so.
I am not a member of Buccaneer. I do not have 101 number at my back as wrongly alleged by the security man from the University.”
The learned trial judge as set out above concluded that the Appellant having said that he did not make the statement and that he was dictated to by the PW5 and made to write and sign or copy what PW5 had earlier written, then he had denied all knowledge of the statement and the issue of voluntariness did not arise. With the greatest respect, I think that is a wrong inference and conclusion to be drawn from the evidence before the court. The Appellant said he was beaten with electrical appliances and ruler and then made to write a statement at the dictation of PW5. The learned trial judge seemed to have accepted that portion of the Appellant’s evidence at the trial within trial. It was the duty of the learned trial judge in the circumstances of this case to make a firm and unequivocal finding at the conclusion of the trial within trial whether or not he believed the Accused that the statement was involuntary or he believed the prosecution witnesses that the statement was voluntary. The trial judge had no good cause to side step the making of a finding of fact based on the evidence led by both sides and to conclude that the trial within trial had been a waste of time. It would be a different matter altogether and his Lordship would have been right if the Accused person had denied all knowledge of the statement. The Accused in effect said “I wrote it, but I was dictated to and/or forced by beating, etc to copy it.”
That is different from saying “I have never seen this statement before, I didn’t make any statement at all to the police”. Where it is the 2nd scenario that is revealed by the evidence, the trial judge need not make a finding on the voluntariness but may just admit the statement in evidence. Where the objection to the admissibility of a statement is merely that it was not read over to him or he did not make it, but not that it was not voluntarily made and he was coerced or induced to make it, the statement is relevant and admissible. Where for example the Accused said he did not make any statement and he was forced to sign one, the voluntariness of the statement is being contested and there should be a trial within trial. See NS0FOR V. THE STATE (2004) 18 NWLR Pt. 905 Pg. 292. The learned trial judge chose to infer the second scenario whereas the evidence led before him showed that the first scenario was the true state of affairs. His Lordship admitted the statement as exhibit without a proper finding regarding it. The reason for a trial within trial at that point is to enable the Accused know whether or not the retracted statement has been accepted in evidence or not by the court. In this case the Accused was left in doubt since the statement was admitted as exhibit without a finding of what probative value would be put on it after its retraction. The learned trial judge ought to have made a finding on the issue and on the basis of his finding rejected or admitted the statement as being relevant or otherwise. The test of relevance in criminal proceedings is the voluntariness of the statement which must be determined to make it admissible or otherwise. It is my view that the failure of the learned trial judge in making a finding of fact and pronouncing on the relevance of Exh.6 before admitting it is a fundamental flaw in the ruling of the trial court delivered on 11/3/05. What compounds this issue is the fact that in the judgment of the lower court, a lot of weight was put on the contents of a document whose relevance had not be determined at the earliest opportunity. The ruling of the trial court admitting Exh.6 is wrong in law and it is hereby set aside. Exh.6 is hereby held irrelevant and inadmissible in the manner it was admitted. A close look at the contents of Exh.6 shows that it was a confessional statement. A voluntary statement can only be relevant where it was established that it was voluntarily made. In the circumstances, the second issue is resolved in favour of the Appellant.
Issue Three
Whether having regard to the evidence led by the prosecution a case of belonging to secret cult contrary to S.7(1) of the Secret Cult and Secret Societies in Educational Institutions (Prohibition Law) 2004 was established against the Appellant.
Learned Appellant’s counsel argued that the onus is on the Prosecution to prove that the Appellant was indeed a member of a secret cult known and called Buccaneer. He opined that by S.7 of the Law, the ingredients of the offence to be proved by the Prosecution are –
(i) That the Accused is a member of secret cult,
(ii) That the secret cult is a Buccaneer,
(iii) That the Accused operates an association of secret cult,
(iv) That the association is illegal in Educational Institutions in Kwara State,
(v) That a member of a Buccaneer secret cult must have 101 mark inscribed on his back,
(vi) That the secret cult must have symbols for identification like mark 101.
He submitted that none of the ingredients of the offence had been proved in accordance with S.138(1) of the Evidence Act. He argued that the trial court relied heavily on the evidence of PW2 Kanu A. Paul an intelligence officer of the University of Ilorin as contained on Pg.35-38 of the record. The witness PW2 had sworn unequivocally that his experience as an intelligence officer on the issue of cult membership and the way to identify them is the mark 101 on their back. Learned Appellant’s counsel argued that the absence of the mark 101 on the back of the Appellant knocks the bottom off the prosecution’s case. He argued that in that regard the prosecution had not proved its case beyond reasonable doubt as required by law. He cited ODEN V. FRN (2005) 1 NCC Pg. 303. He argued that the learned trial judge convicted the Appellant on the basis that there was proof he was a cult member whereas the mark or symbol by which a cult member could be identified was absent on the body of the Appellant.
In reply the learned DPP Kwara for the Respondent argued that S.7 of the Secret Cult Law prohibits membership, operation and association with secret cult by whatever name called in and outside educational institutions in Kwara State. The offence is punishable under S.11(1) of the law. He argued that the corroborative evidence of prosecution witnesses combined with Exh.6 is enough to sustain the charge of belonging to a secret society for which the Appellant was charged. He argued that the Appellant could be convicted on his confessional statement without more. He cited the case of EGBOGHONOME V. THE STATE (1993) 7 NWLR Pt.306 Pg.383 at Pg.433 where Olatawura JSC re-echoed the age long settled principle of law thus:
“There can be no doubt, that under Section 27 of the Evidence Act an Accused person can be convicted on the confession made by him once it is properly proved and admitted in evidence. REX v. AJAYI OMOKARO (1941) 7 WACA 146; OGOALA v. THE STATE (1991) 2 NWLR Pt. 175 Pg. 109; QUEEN v. OBIASA (1962) 2 SCNLR 402; (1962) ALL NLR 465. He also cited Mohammed JSC in ABASI v. THE STATE (1992)8 NWLR Pt. 260 Pg. 383 at 98 and per Obaseki JSC in JAMES ACHABUA v. THE STATE (1976) 10 NSCC 714 to reemphasis the legal implication of a confessional statement and the need for no corroborative evidence on same when he held:
“It is trite law that a confession alone, even without corroboration can support a conviction so long as the court is satisfied that the confession is true.”
Learned Respondent’s counsel urged us to peruse the contents of Exh.6 which he put heavy reliance on. Counsel also urged the court to note that the Appellant had had several opportunities to have a bath after his arrest and that explains the absence of the mark 101 on his back by the time of his trial. He urged the court not to forget the circumstances that led to the arrest of the Appellant.
On this issue the learned trial judge held on Pg.123 of the records –
“According to the submission of the learned Ag. OPP, the evidence of PW2, PW3 and PW4 before the court who were officers who effected the arrest of the accused person upon an intelligence report of an impending cultist attack on the University, the offence has been duly established against the Accused person in this case – beyond the reasonable doubt standard as envisaged by the Evidence Act.
According to learned counsel, the membership of the Accused person of a secret cult and association with same, is further strengthened by Exhibit 6 before the court. Exhibit 6 is the confessional statement of the Accused person to the investigating officer.”
My Lords, let us examine the evidence of the prosecution regarding the proof of whether or not the Appellant was a member of the Buccaneer – a secret cult without recourse to the contents of Exh. 6 which has now been rejected.
In an attempt to prove that the Appellant was a secret cult member of the Buccaneer extraction, PW2 – Kanu A. Paul of the intelligence unit of the University of Ilorin said under examination-in-chief at page 36 lines 1-3 of the record as follows-
“When I saw the 101 in front of SEGUN, I then asked him to bring out other items in his bag because 101 code confirms the ALURA member he is asking for”
At page 38 of the record under cross-examination, this witness said as follows –
“There was no parade in the campus and nobody identified the Accused as a Buccaneer member.”
Still at page 38 of the record, this witness said under cross-examination thus:
“With my experience as an intelligence officer, I know that the Accused has the mark 101 on his back which is the usual identification mark of Buccaneer member”.
At page 100 when the Accused was giving evidence in chief, the following was recorded thus:
ACCUSED: “There is no any mark on my back depicting me as a member of the Buccaneer cult.”
COUNSEL: “Prays that the Accused should remove his shirt.
ACCUSED: Removed his shirt.
COUNSEL: Prays that the court orderly be made to examine the back of the Accused for any trace of marks.
AG. DPP: No objection.
COURT: The court orderly is ordered on the application of the learned counsel to the Accused, to examine the back of the Accused for any trace of marks particularly No.101.
COURT ORDERL Y: Cannot find any number 101 on the back of the Accused. ”
The Appellant was stopped in a public place. He was not holding a meeting nor speaking with anyone. He was arrested on the instruction of PW2 and escorted by two mobile policemen to the PW2. The Appellant voluntarily opened his bag to bring out his diary with the address of the person he was looking for.
No insignia of a cult member was found on him. The only concrete evidence on which suspicion of belonging to a cult member was based was the “101” written in front of the name of Segun in his diary. The intelligence officer of the University stated forcefully and unequivocally that the sign 101 would be inscribed on the back of any Buccaneer member. None of those who arrested the Appellant or who investigated the case confirmed that at the time of his arrest 101 was written on his back. In the absence of such a mark and any other circumstance that would confirm the status of the Appellant as a cult member I find it very difficult to agree that the prosecution had proved their case beyond reasonable doubt as provided by law. From the judgment, it is apparent that the trial judge himself was on thin ground in this regard and had to call in aid the contents of Exh.6 the confessional statement of the Accused. In this regard, we cannot do so since the said confessional statement has herein been adjudged irrelevant and thus inadmissible. The inference that the Appellant is a cult member merely from the entry of address, name and a code 101 is not enough in my view to ground a conviction. At best it was mere suspicion. I must say here that this case was poorly investigated. No efforts were made when suspicion was aroused against the Appellant to trail him so he could lead the intelligence men to other cult members. No attempts were made to trace the Segun whom he claimed to come and visit in Ilorin. In short no effort at any form of intelligence gathering or proper investigation was made except the confessional statement of the Appellant. That is not good enough.
In fact the Appellant was charged with “professing” to be a cult member. The new English dictionary and Thesaurus defines the word ‘profess’ to mean acknowledge, affirm, allege, aver, avouch, avow, confess, declare, own proclaim, state, affect, feign, pretend. Implicit in that definition is that the ‘professing’ must have been ‘publicized’ to another person. The trial was held within a year of his arrest. No witness gave evidence that he ‘professed’ anything to them before he was arrested. The language used in the charge is ‘profess’ and the definition is a proactive state of affairs. The doing of an act and not the state of mind of the Appellant. No one gave evidence to prove that the Appellant introduced himself to them as an Alura member before he was arrested. After he was arrested by two mobile policemen, he then ‘professed’ to P.w.2 that he was a cult member. Let us not forget that from the evidence of the prosecution witnesses, the basis of the Appellant’s arrest by mobile policemen on the campus was that he was acting suspiciously in that he was asking for alura members. That basically was his offence if we believe the evidence of all the prosecution witnesses on that point. Therefore, there is no direct evidence showing he had done something to indicate he was an alura member or professed himself to those people that he was an alura member, An offence is committed before an arrest and not after an arrest or during the course of an arrest To whom did he profess himself to be a cult member before he was arrested? This is not a charge of conspiracy. The basis of his conviction after removing Exh,6 is purely suspicion, Only circumstancial evidence which is cogent, complete and unequivocal can support conviction in a criminal trial. See AKINBISADE v. THE STATE (2006) 12 SCM Pt. Pg.41. The punishment being more than three years imprisonment, makes the offence a felony, a serious crime which requires that the guilt of the Accused be proved beyond reasonable doubt According to the Chief Prosecution Witness, PW2 the surest way of proving that a person is a cult member is the No, 101 inscribed or tattooed at the back of the person. This ‘conclusive proof’ of the status of the Appellant as a cult member was sadly lacking from arrest to prosecution of the Appellant in this case. The argument that the Appellant had probably washed it away during his baths in prison custody is ridiculous in the extreme, Are we talking about a chalk or charcoal or ink marking here? To convict a person of a felony because he wrote 101 in front of a name in his private diary is to me very unnerving, His “professing” to PW2 to being a cult member when he was arrested he had denied on oath, I cannot see how the Accused can be found guilty as charged under the circumstances of this case, Apart from Exh,6, the Respondent’s case had no leg to stand on hence the copious references to it by the learned trial judge while deciding the guilt of the Appellant in relation to the charge of professing to belong to a secret cult. In the circumstances, the third issue is resolved in favour of the Appellant.
Issue Four
Whether from the totality of the evidence by the prosecution, it proved beyond reasonable doubt all the offences charged against the Appellant.
On this issue, learned Appellant’s counsel argued that since the Appellant had disclaimed Exh,1, the bag in which the gun and five rounds of cartridges were contained, the police had to prove beyond reasonable doubt the fact that the bag belonged to him, Senior counsel argued that all the prosecution witnesses are agreed on the fact that the Appellant opened his bag himself to bring out its contents, Senior Counsel argued that PW3 at Pg.39 of the record stated emphatically that the Appellant’s bag was opened with a lock of numbers and he didn’t know the numbers the Appellant used. The witness also said the lock was attached to the bag. Learned senior counsel also argued that there were contradictions in the evidence of the prosecution witness regarding the contents of the bag. He urged the court to hold that these are material contradictions in the evidence of the prosecution witnesses. He argued that from the evidence of the prosecution witnesses, the bag belonging to the Appellant in which he had shoes, toothbrush, shirt and trouser were kept away and another bag containing lethal weapons substituted and tendered to implicate the Appellant. He cited HYCIENTH EGBE v. THE KING 13 WACA 105; ONUBOGU v. THE STATE (1974) 1 ALL NLR Pg.5 at 18.
In reply, learned Respondent’s counsel argued that where the prosecution had led enough evidence to establish the ingredients of the offences charged, then the case of the Accused would be regarded as having been proved beyond reasonable doubt. He submitted that proof beyond reasonable doubt is not and cannot mean proof beyond every shadow of doubt. He cited MUFUTAU BAKARE v. THE STATE (1987) 3 SCNJ 1 AT Pg.9; STATE v. COLLINS OJO AIBANG BEE & ANR. (1987) 7 SC PI. 1 Pg. 154 at Pg. 168.169.
On the 1st count of Illegal Possession of Firearms, the prosecution argued that enough evidence to prove the essential ingredients of the offence had been led. He stated the ingredients as –
- That Exhibit 2 is a firearm within the meaning of the Firearms Act.
2 That Exhibit 2 was found in possession of the Accused without lawful authority.
He submitted that the prosecution was able to establish these essential ingredients via the testimonies of PW2, PW3, PW4 and PW5 contained on pages 35-42 of the record. Exhibit 2 was confirmed by the testimony of PW5 on page 70 to be a locally made pistol and the content of Exhibit 6 wherein the Appellant admitted ownership taken together with the testimonies of PW2, PW3, PW4 on page 35-42 of the record establishes all the ingredients of this offence.
In the same vein, the offence of criminal trespass under section 348 of the Penal Code was sufficiently established by the prosecution witnesses. That the Accused was arrested in the premises of the University of Ilorin was not in dispute, that he unlawfully remained within the campus at the point of his arrest was not contested by the Appellant, that he entered with the intention of committing a crime was sustained via the evidence of the prosecution witnesses particularly the evidence of PW5 on page 42 where the Accused made his intention known to the investigating state security officer in the course of investigation.
He submitted that what the Appellant referred to as contradictions in the evidence of the prosecution witnesses are not substantial to affect the ingredients of the offence and does not affect the twin essentials of proof beyond reasonable doubt i.e. that an offence has been committed and that the Appellant committed the offence.
He urged the court to overlook any discrepancy not amounting to substance in the evidence of the prosecution witnesses. He argued that the learned Appellant’s counsel failed to appreciate the difference between discrepancy and material contradictions. He urged the court to hold that discrepancy in the prosecution’s evidence is not sufficient to set aside the order of conviction of the lower court. He cited AKPA v. THE STATE (2007) ALL FWLR Pt. 351 Pg.1560 at 1576; AGBO v. THE STATE (2006) ALL FWLR Pt. 309 Pg. 1380; (2006) 6 NWLR Pt. 977 Pg. 545; GABRIEL v. THE STATE (1989) 5 NWLR Pt. 122 Pg. 457.
The learned trial judge had this view in relation to count 1 of the charge. “With the evidence before the court, the court believes that the locally made pistol and the five live ammunition were part of the items found in possession of the Accused person on the day and time of his arrest………The court holds that there is no evidence before it that the Accused was ever issued with a licence to carry arms and ammunitions……………
I am of the strong view that Exhibit 2 before the court, is firearm under the definition of Firearms in Section 2 of the Firearms Act.
I am also of the strong opinion that the five live cartridges, Exhibit 3 in this case are ammunition for firearm.
The court holds that the Accused person was in unlawful possession and control of firearms. The accused is also guilty of being in unlawful possession of ammunition.
He is therefore guilty as charged on the first head of count.”
My Lords, according to the provision of section 2 of the Firearms Act, Cap.F28 Laws of the Federation 2004 –
“Firearm” means any lethal barreled weapon of any description from which any shot, bullet or other missile can be discharged, and includes a prohibited firearm, a personal firearm and a muzzle loading firearm of any of the categories referred to in Parts I, II and III respectively of the schedule hereto, and any component part of any such firearms”.
Under the same Section –
“ammunition” means ammunition for any firearm and any component part of any such ammunition, but does not include gun powder or trade powder not intended or used as such a component part.”
The learned trial judge placed reliance on the evidence of PW5 contained on Pg.120-121 of the record to arrive at the conclusion that the cartridges found were ammunition and the gun was firearm within the meaning of the Firearms Act. Everyone assumed on the mere evidence of P.W.2 that the ‘gun’ was a lethal weapon and that the ‘cartridges’ found on the Appellant were ammunition. The witness never held himself out as an expert in such matters. The court is not at liberty in a criminal trial to make such assumptions. The definition of ‘firearm’ describes a weapon which possesses certain characteristics. In order to show that the ‘gun’ found on the Appellant possesses the characteristics of firearm, there was need for the prosecution to call expert evidence to show that the ‘gun’ was lethal and that a shot, bullet or other missile can be discharged from it. The law does not make these assumptions in a criminal trial. The ‘ammunition’ was not proved by any expert witness to be a firearm or what its components are. That was a big lacuna in the prosecution’s case. This must be resolved in favour of the Appellant. The bag and its contents are Exh, 1, 2 & 3 respectively. The bag cannot be separated from its contents. The Appellant was adamant that Exh.1 was not his bag as his bag had both a different colour and lock and another way of being opened. The Prosecution Witnesses were not able to clear up in my view and on a review of the evidence adduced before the lower court, this material point. The issue made by the defence about the ownership of the bag tendered was in my view one the prosecution should have been made to clear up by the Prosecution Witnesses and not left in doubt. Any doubt must be resolved in favour of the Appellant. One may well ask what he was doing with a bag with a gun and cartridges. However, the prosecution were not able to explain the whereabout of his own black bag which had a lock which opened with a code. The prosecution tendered a blue bag with no lock. How could such an important piece of evidence become controvertial? The witnesses PW3 and PW4 admitted that his bag had a lock which only he could open. What happened to that bag? In criminal proceedings where doubt is raised on an important piece of evidence, the doubt would be resolved in favour of the Accused person. The first count is resolved in favour of the Appellant.
On the 2nd count of criminal trespass on the land and premises of the University of Ilorin, punishable under 8.348 of the Penal Code, the learned trial judge held thus –
“It is only necessary to show by evidence that the complainant, the University of Ilorin had possession of the property in question, that the Accused entered into or upon the property or that he unlawfully remained there after having lawfully entered therein or thereon and that he entered or remained there with the intention to commit an offence or the intention to intimidate, insult or annoy the person in possession. The law has not made any provision for actual insult, intimidation or annoyance.
The court is of the opinion that the ingredients of this offence have been properly established against the Accused person having regard to the evidence of PW2, PW3 and PW4 which evidence was confirmed and or corroborated by the Accused himself who stated that he was on the motion ground of the University of Ilorin when two gentlemen approached him and invited him to the security post.”
My Lords, in my view the question here is whether or not apart from Exh.6 which we cannot countenance, there is evidence beyond reasonable doubt that the Appellant entered the University of Ilorin premises to commit an offence or to intimidate, insult or annoy the person in possession. I do not think so. Apart from the evidence of PW2 who said the Appellant told him he was a Buccaneer which the Appellant denied, there is no other evidence of any intention on the part of the Appellant to commit an offence. Even the much flouted Exh.6 which was relied upon by the learned trial judge did not admit to an intention to commit any offence on the premises of the University. I do not think that the University of Ilorin site as a whole is a ‘private’ residence. Anyone with or without specific business can enter the place and not be taken to have committed an offence ipso facto. If he lawfully entered a public place – (which the ‘motion ground’ where pictures are taken and telephone calls are made of the University is rather than a private premises like the Student’s hostel or private residence or lecture room, then his merely being there cannot be a criminal offence. Let us accept for the purposes of argument the evidence of P.w.2 to whom the Appellant confessed after arrest to being a cult member, he did not say that the Appellant confessed any intention to intimidate, annoy or insult anyone on the premises. The second count is resolved in favour of the Appellant.
The 3rd count had already been addressed under issue 3.
In my humble view, apart from the confessional statement of the Appellant which is inadmissible, there is no cogent evidence leading unequivocally to the guilt of the Appellant in respect of the 3 count charge against him. The conviction of the Appellant is set aside. I return a verdict of Not Guilty on each of the three counts and consequently allow this appeal.
Other Citations: (2007)LCN/2533(CA)
