In The Court of Appeal of Nigeria
On Monday, the 26th day of March, 2018
Before Their Lordships
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria
ATTORNEY GENERAL OF THE FEDERATION –Appellant
1. ISRAEL OMOMOH
2. IMOLE AGITAN
3. SUNDAY TUWATIMI –Respondents
CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court Ogun State, Abeokuta in Suit No. FHC/AB/10C/2013 delivered on the 11th day of December, 2014 Coram Ogunbanjo J. wherein all the Respondents were discharged and acquitted of the offences of conspiracy and unlawful dealing in petroleum products; and the 3rd Respondent alone discharged and acquitted of being in possession of ammunition to wit live cartridge without permit or license.THE FACTS:
The Prosecutions case was that on the 9th of January, 2013, some officers of Nigerian Security & Civil Defence Corps (NSCDC) went with an informant to Magboro Oil Pipeline restricted area to recover some exhibits. On the waterway leading to the Pipeline they saw a canoe with five men in it. There were many jerry cans of 50 litres and sacks in the canoe. It was alleged that the canoe was coming from the direction of the pipeline and facing the shore. As soon as the canoe moved closer, they were stopped by the officers of NSCDC who asked them what they were doing on the water way with a canoe containing many jerry cans and sacks attached to it. It was alleged that the Respondents cohorts who hid in the bush started shooting at the officers thus distracting them. This gave the occupants of the canoe the opportunity to jump into the water way and swim off. After they escaped and the gun shots coming from the surrounding bush had stopped, the officers with the aid of informants with them paddled the canoe to the shore of the Waterway and retrieved the 50 litres jerry cans and sacks where they discovered that the jerry cans and sacks were filled with Premium Methylated Spirit popularly known as Petrol.
The Prosecution alleged that with surveillance and the aid of Officers of NSCDC who were at the scene of crime and who had recognized the fleeing suspects, the first two Accused Persons Israel Omomoh and Imole Agitan were arrested and charged to Court on the 8th day of February 2013. They were arraigned on the 27th day of February 2013 for the Offences of Conspiracy and Unlawful Dealing in Petroleum Product contrary to Section 3(6) and Section 1 (17) (A) (B) of the Miscellaneous Offences Act Cap M 17 LFN 2004. The Accused Persons pleaded not guilty to the 2 Counts.
The 3rd Accused Person was arrested about the 9th day of February 2013 and was allegedly identified by the officers of NSCDC who were at the scene of crime at the time. It was further alleged that the 3rd accused was also found in possession of ammunition, live cartridge without permit. Upon his arrest, the original charge was amended to include his name and also a 3rd Count of possession of ammunition to wit; live cartridge without permit or licence against the 3rd accused only. The amended charge was filed on the 26th day of March 2013 and read to all the Accused Persons on the 29th day of April 2013 in the absence of their counsel. All the three Accused Persons pleaded not guilty to the first two Counts of Conspiracy and Unlawful Dealing in Petroleum Product while the 3rd Accused Person pleaded guilty to the 3rd Count of being in possession of ammunition to wit live cartridge without permit or license.
The three accused persons denied all the allegations pertaining to counts 1 & 2. They denied knowing each other before the arrest. The 1st accused said he was visiting relatives in Arepo when he was arrested. The 2nd accused said he was in the house of his younger brother in Arepo when he was arrested. The 3rd accused was arrested in his house. He admitted being in possession of two cartridges without licence. He said they were given to him by the Security Agency where he worked.
At the trial, the Prosecution called five witnesses and tendered several exhibits. The three accused persons testified and called two other witnesses. Following an application made by the Defence Counsel,
the Court visited the locus on the 14th day of March, 2014. Surprisingly the only information in the Record regarding the visit was in the judgment. The proceeding at the locus was not recorded. The Court ordered the parties to file written addresses which were duly adopted. On 11/12/14, the Court delivered judgment discharging and acquitting the accused persons on all the three counts.
The Appellant being dissatisfied with the judgment, filed an Appeal by a Notice of Appeal dated the 10th day of March 2015 containing four grounds of appeal. The Appellants brief is dated 22/02/2016 and filed on 23/02/16 but deemed properly filed and served on 25/01/17. The Respondents filed a Notice of Preliminary Objection on 26/04/16 alleging that the Notice of Appeal was incompetent as it was filed jointly for the three Respondents instead of separately for each Respondent; and consequently deprived the Court of jurisdiction to entertain the appeal. The Respondents and their Counsel thereafter did not attend Court and did not file any brief of argument. There was evidence from the Court Records that all processes and hearing notices were duly served on them. On 10/01/18, the Court granted an order that the appeal be heard on the Appellants brief alone. On 14/3/18, when the appeal was heard, the Respondents were not represented but the Court Records showed they were duly served with hearing Notice.
Out of the four grounds of appeal, the Appellant distilled two issues for determination as follows:
1. Whether or not the learned trial Judge was right when he discharged and acquitted the 3rd Accused Person of the offence of possession of live ammunition without a licence.
2. Whether or not the learned trial Judge properly evaluated the evidence before her in the case against all the Accused Persons.
APPELLANTS ARGUMENTS ON THE ISSUES:
Learned counsel to the Appellant, Akande A. O. Esq. on issue 1 submitted that the 3rd Respondent had pleaded guilty to count 3 of the charge; being in possession of ammunition to wit live cartridges without permit or licence. Counsel argued that once an Accused Person pleads guilty to an offence and it appears to the Court that the Accused Person understands the nature of the offence and that he intended to admit the truth of all the essentials of the offence to which he has pleaded guilty, the Court shall convict him of that offence and pass sentence upon him. He referred to Section 218 of the Criminal Procedure Act, Cap C41, Laws of the Federation of Nigeria 2004 and the case of SUNDAY V THE STATE (2013) ALL FWLR (PT. 700) 1396 @ 1413 where it was held that where an Accused Person admits the guilt of an offence the legal burden of proof no longer arises, and no burden of proof rest on the accuser, it having been discharged by the admission of the accused. ADETUNJI V THE STATE (2001) 13 NWLR (PT.730) 375.
Counsel submitted that the trial judge ought to have passed sentence on the 3rd Respondent instead of allowing the matter to go to trial.
He submitted that in his judgment the learned trial Judge held that the Prosecutor did not make any effort to investigate the statement made to him by the 3rd Respondent that he was a security man. Counsel submitted that the learned trial Judge also found that the cartridges were given to him by the chairman of the security outfit where he was working as a security man. Counsel argued that in the Statement made by the 3rd Respondent admitted into evidence without objection by the trial Court as Exhibit 2, the 3rd Respondent claimed that he is an auxiliary nurse and that the ammunition found on him belonged to an unnamed Vigilante Group; but while giving evidence, he turned round to claim in his defence that he is a security man and that the ammunitions were given to him by the chairman of a security group. Counsel submitted that the investigating officers cannot be expected to investigate a defence which was not raised at the time the Accused Person was arrested especially as he claimed he was an auxiliary nurse who had no business with guns, ammunitions or cartridges. Counsel argued that the onus rests on the Accused Person who is raising a defence of being a
security man for the first time in Court to show that he had the right to have the ammunition and that his security organization is registered or licensed in line with the provisions of Section 8(1) and 27(b) (11) Firearms Act Cap F28 LFN 2004. He cited in aid the case of STATE v. OLADOTUN (2011) LPELR -3226 (SC). Counsel submitted that it is irrelevant whether or not the live cartridges were given to the 3rd Respondent by another as all the Prosecution needed to prove was possession without a licence as the offence is one of strict liability. Learned counsel further submitted that another reason given for the acquittal of the 3rd Respondent on that count is that the live cartridge found in his possession is not a fire arm. Counsel submitted that the Prosecutor did not allege that the live cartridge is a fire arm but that it is ammunition” within the provisions of Section 8 (1) of the Fire Arms Act Cap F28 LFN 2004; and that under the said law, any person found in possession of any ammunition without a licence is guilty of an offence. Counsel argued that the 3rd Respondent not only admitted being in possession of the live cartridges but also that he had no licence for same. He urged the Court to set aside the decision of the trial Court and to convict the 3rd Respondent on count 3 of the amended charge dated 26th March 2013.
On issue 2, whether or not the learned trial judge properly evaluated the evidence against all the Respondents on counts 1 & 2, learned counsel examined in detail the qualifications of PW5 and the evidence he gave as to how he carried out the test to determine the contents of the jerry cans and submitted that his opinion should not be taken lightly in view of the fact that the Respondents did not call their own expert to contradict his evidence. Learned counsel submitted that while it is conceded that the onus is always on the prosecution to prove its case beyond reasonable doubt; that in view of the denial of the Respondents of being at the scene of the crime, the only reason why the Court should visit the scene of the crime is to find out whether the prosecution witnesses lied. He submitted that at the Locus-in-quo the learned trial judge merely asked questions but failed to allow counsel to know the way his mind was working to enable counsel address the issue.
He submitted that the failure of the learned trial judge to differentiate between an artificial waterway and a river made him discredit the prosecution witnesses and thereby in effect believe the evidence of the Respondents that they were not at the scene of the crime. Counsel argued that if the learned trial judge had made the correct findings he would have called upon the Respondents to prove their alibi, since the prosecution witnesses had fixed them firmly at the scene of the crime. On the various exhibits tendered by PW5 which the learned trial Judge ruled ought to have been tendered by the makers of the exhibits, learned counsel relying on the cases of OSAGIEDE OJO V GHARORO & ORS (2006) 5 SCM 1 @ 209; UDO V. ESHIET (1994) 8 NWLR (PT. 363) 483; OBEMBE V. EKELE (2001) 8 WRN 68; AG. OYO STATE VS FAIRLAKES HOTELS LTD (1989) 12 SCJNJ 20 submitted that PW5 had intimate relationship with the contents of the documents and that at pages 71 73 of the Record; he gave evidence of the relationship. He submitted that the Exhibits which buttressed the expert opinion of PVV5 that what is contained in the jerry cans and the sacks are Petroleum Products should not have been jettisoned simply on the basis that it was not tendered by the maker.
Learned counsel urged us to allow the appeal, to set aside the judgment of the trial Court and to convict the Respondents as charged.
On 14/3/18 when this appeal came up for hearing, the Respondents and their counsel K.A Atima Esq. were absent. The Records of the Court showed that hearing notice was duly served on them. Not being present in Court, their Notice of Preliminary objection must be deemed abandoned. At any rate, the preliminary objection is lacking in merit. Order 17 Rule 3 (1) to (4) of the Court of Appeal Rules 2016 requires a prospective appellant to sign and file his Notice of Appeal. The law in criminal appeals is that each and every appellant shall appeal against his conviction and sentence. A joint notice of appeal by
several appellants is therefore incompetent. See NIGERIAN ARMY V SGT ASANU SAMUEL & ORS (2013) LPELR-20931(SC); ODUTOLA V OGUNSEYE & ORS (2017) LPELR-42367(CA). The provisions however refer to Appellants and not Respondents. There is only one Appellant in this appeal and three Respondents. The Notice of Appeal signed and filed by the sole Appellant did not therefore offend the provisions of the Law.
The first issue formulated by the Appellant from ground 1 of his Notice of Appeal is whether or not the learned trial Judge was right when he discharged and acquitted the 3rd Accused Person of the offence of possession of live ammunition without a licence. Ground 1 of the Notice of Appeal and its particulars read thus:
The learned trial Judge erred in law when he held that the prosecutor ought to have investigated the statement of the Accused person that the live cartridge was given to him by another person.
PARTICULARS OF ERROR
I. The offence of unlawful possession of ammunition prohibits possession not ownership of the ammunition.
II. The 3rd Accused Person both in his extra judicial statement and evidence before the Court admitted being in possession of the live cartridge.
III. It is trite that ignorance of the law relating to an offence is no excuse.
In his judgment at page 162 of the Record, the learned trial judge observed:
The Prosecutions submission that the 3rd Accused Person admitted guilt of the 3rd count of the charge is devoid of evidence of the guilt. The Prosecution have not established that the 3rd Accused Person is guilty of the 3rd count charge.
It is trite that plea of guilty without evidence of guilt will not ground a conviction See Kayode Vs. State (2008) 2 WRN 102, LINE 30 35. Also Abdul-Latiff Ahmed vs. C.O.P. (1971) NWLR 48.
Section 218 of the Criminal Procedure Act provides thus:
If the accused pleads guilty to any offence with which he is charged, the Court shall record the plea as nearly as possible in the words used by him and if satisfied that he intended to admit the truth of all the essentials of the offence of which he has pleaded guilty, the Court shall convict him of that offence and pass sentence upon or make an order against him unless there shall appear sufficient cause to the contrary.”
From the Record of appeal, pages 40 and 41, it is obvious that the learned trial Judge did not record the plea of guilty in the words used by the 3rd Respondent. The Record merely said Count 3 ….. Pleads guilty. The Court by proceeding as it did, was obviously not satisfied that the 3rd Respondent intended to admit the truth of all the essential elements of the offence of which he has pleaded guilty. Section 218 CPA gave the trial judge the discretion as to whether or not to convict and pass sentence on the accused on his plea of guilty. There is no basis for questioning the learned trial judges exercise of discretion not to convict and sentence the 3rd Respondent on his guilty plea.
However it is necessary to now proceed and see whether the learned trial Judge was right when he discharged and acquitted the 3rd Appellant of the offence of possession of live ammunition without a licence. Count 3 reads as follows:
That you Sunday Tuwatimi, on or about the 9th day of February, 2013, at Magboro Village, Obafemi Owode Local Government, Ogun State of Nigeria, within the Abeokuta Judicial Division of Federal High Court of Nigeria, was found in possession of ammunition to wit: live cartridge without permit or
licence granted in respect of same and thereby committed an offence contrary to Section 8(1) of the Firearms Act and punishable under Section 27 (b) (ii) of the Firearms Act.
The Prosecution apparently quoted wrong sections of the law. The relevant sections are Section 9 (1) and Section 28 (b) (ii) of the Firearms Act. This is of no moment because Section 166 CPA provides that no error in stating the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any stage of the case as material unless the accused was in fact misled by such error or omission. See FRN V IFEGWU; EGUNJOBI V FRN (2012) 3 NWLR (PT. 1342) 534; OLATUNBOSUN V THE STATE (2013) 34 WRN 1; OGBOMOR V STATE (1985) 1 NWLR (PT.2) 223 @ 233; IKPA V STATE (2017) LPELR-52590 (SC). There is no evidence that the 3rd Respondent was misled by the wrong sections cited in the charge.
It appears from the relevant section of the law that the ingredients of the offence is that the accused is in possession of ammunition in this case live cartridge and that he has no licence or permit for the live cartridge. The 3rd Respondent gave evidence as DW5. His evidence in chief and cross-examination are at pages 99 102 0f the Record. The relevant portions are as follows:
Examination in chief:
ATIMA: What do you have to say about the two cartridges they found in your hand?
DW5: Yes. I am a security. When we resume at night, we go to Chairman;s house to collect the guns when we close from work in the morning we return the guns but we hold on to the 2 cartridges given to all of us security there. We are 10 in number.
ATIMA: What do you have to say about the charge that you had 2 live cartridges without permission?
ATIMA: What do you say about it?
DW5: Being security man that is why I had the cartridges with me.
AKANDE: The live cartridges found in your house, do you have licence to have them?
DW5: No, I don’t have licence.
AKANDE: Do you know it is an offence to carry it without a licence?
DW5: I don’t know it is an offence because I am a security man. Our Chairman gives us. That’s why I have it.
AKANDE: The security outfit you work for is a private outfit?
DW5: It’s a private company, the mast I watch over belongs to MTN.
AKANDE: Does working in a private company give you right to carry life cartridge?
DW5: Since he is a security man, they give us the cartridge. I don’t know it is an offence.
It is evident from the examination in chief and the cross-examination that the 3rd Respondent was indeed found in possession of two live cartridges and that he had no licence for them. The learned trial Judge in his judgement at page 161 of the Record had indicated that he found it strange that the Prosecution did not make any effort to investigate the claim of the 3rd Respondent that he was a security man and that the cartridges were given to him by the Chairman of his Security outfit. PW3 Rasak Oladepo an officer of NSCDC Ogun State in his evidence in chief at page 54 of the record testified that he took part in the arrest of the 3rd Respondent in his house where they found 2
cartridges of bullets, a lot of manmade 50 litres cover, 11 litres empty jerry cans, a lot of syringe and needles, a big black polythene bag and sack. He testified that he took the 3rd Respondent to the conference room where he obtained his statement. He testified that when he asked him about the needles and syringe, he said he was an auxiliary nurse; that when he asked him about the cartridges, he said it belonged to a vigilante group. The Statement he obtained from 3rd Respondent was admitted in evidence without objection as Exhibit 2. The cross-examination of this witness is at pages 60 – 63 of the Record. He confirmed under cross-examination that he recovered one identity card belonging to a Security Company from the 3rd Respondent. He investigated the Security Company by calling the number on the card but there was no response. Surprisingly, PW3 was not cross-examined about his claim that the 3rd Respondent told him he was an auxiliary nurse as contained in Exhibit 2. No questions were put to him about the contents of Exhibit 2. Learned counsel for the Appellant is consequently right that the Prosecution cannot be expected to investigate the assertion of the 3rd Respondent that he got the cartridges from his un-named Chairman and the un-named security company. The evidence was an afterthought given during hearing when it was impossible to conduct any further investigation. The 3rd Respondent failed to give precise particulars that could justify his being in possession of the cartridges, for example the name of his Chairman who allowed him to retain possession of the cartridges and the name of his Security Company as the Security Company may be licensed or registered to own firearms and ammunitions. The burden on the prosecution is to prove possession of the ammunition and absence of licence. This they did. It is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt. But once a defence is raised on matters within the peculiar knowledge of the defence, it is the duty of the defence to prove the defence once the burden on the prosecution is discharged. See CHRISTOPHER AKHIMIEN V THE STATE (1987) LPELR-332 (SC).
The learned trial Judge erroneously thought the Prosecution considered the cartridges as firearms, thus his observation that:
I have looked at the Fire Arms Act i.e. Section 2 and 3 Fire Arms Act F28 LFN, 2004 and it does not describe a Cartridge as a firearm prohibited under the Act.”
The view of the learned trial judge is misconceived. The Prosecution referred to the cartridge as ammunition, not firearm. Section 2 of the Fire Arms Act provides that ammunition means ammunition for any firearm and any component part of any such ammunition. A cartridge is ammunition for a gun which is a firearm. The learned trial judge erred in coming to the conclusion that the prosecution did not prove the elements of the offence charged under Count 3. The 3rd Respondent not only admitted being in possession of the live cartridges, he also admitted that he had no licence for them. The Prosecution proved the elements of the count beyond reasonable doubt. Issue 1 is resolved in favour of the Appellant.
On issue 2 whether the learned trial Judge properly evaluated the evidence before him in counts 1 and 2, Akande Esq. dwelt mainly on the evidence of PW5, the recovery of the items from the canoe, their preservation and manner of tendering as exhibits in Court. There is a whole lot more the prosecution needed to do in order to establish these two counts against the Respondents beyond reasonable doubt. Count 1 of the charge is for the offence of conspiracy to commit a felony to wit dealing in petroleum product from NNPC Oil Pipeline situate at Magboro contrary to Section 3(6) of the Miscellaneous Offences Act Cap M17 Laws of the Federation of Nigeria. Count 2 is the substantive offence, dealing in petroleum product from NNPC Oil Pipeline situate at Magboro without lawful authority contrary to and punishable under Section 1(17) (a) (b) of the Miscellaneous Offences Act Cap M17 Laws of the Federation of Nigeria.
Section 3 provides: Offence by body corporate evidence of accomplices:
Section 3(6) : Where a person aids, counsels, procures, or conspires with any other person to commit any of the offences created by this Act, he shall be guilty of an offence and shall on conviction be liable to the same punishment as prescribed for that offence under the Act.
Section 1(17) (a) (b); DEALING IN PETROLEUM PRODUCTS, ETC
Any person who without lawful authority or an appropriate licence
(a) Imports, exports, sell, offers for sale, distributes or otherwise deals with any crude oil, petroleum or petroleum product in Nigeria.
(b) Does any act for which a licence is required under the Petroleum Act
Shall be guilty of an offence and liable on conviction to imprisonment for life and in addition any vehicle, vessel, aircraft or other conveyance used in connection therewith shall be forfeited to the Federal Government.
From the heading and the definition above, dealing with petroleum products implies using the products in such a manner as to make gains or benefits there from by way of trade or commerce. See ANIM V FRN (2014) LPELR-23219 (CA); ABASS V FRN & ORS (2018) LPELR-43695(CA).
For the prosecution to secure the conviction of the accused persons in respect of the offences above, all the ingredients of the offences must be proved beyond reasonable doubt. The ingredients or elements of the offences are:
1. That there was a conspiracy amongst the three Respondents to deal in petroleum products.
2. That the three Respondents were dealing in petroleum products.
3. That the dealing in petroleum products was without authority or appropriate license.
4. That the petroleum product was Premium Methylated Spirit otherwise known as Petrol
5. That the petroleum product was from NNPC Oil Pipeline situate at Magboro.
The question now is whether the Prosecution led sufficient evidence to establish all of the above ingredients. But before dealing with the above, there is need to pronounce on the fate of the visit to the locus in quo. At paragraph 4.30 page 8 of his brief of argument. Learned counsel for the Appellant submitted:
I humbly refer the Honourable Court to page 160 of the Record of Appeal which showed clearly that at the locus in quo, the learned trial judge merely asked questions but failed to allow the counsel to know the way her mind is working to enable counsel address properly on same.
There is in my view merit in this complaint. The procedure adopted by the learned trial judge with respect to the visit to the locus in quo was wrong. A trial Judge is not supposed to act on his own observations at the visit as his observations are not evidence. He cannot therefore treat such observations as established facts and proceed to make findings on them. Evidence must been given by the parties as to what transpired at the locus in quo and opposing party given the opportunity to cross-examine on it. Where there is a conflict, the trial judge could then use his observation to resolve the conflict. See the following cases: EJIDIKE & ORS VS. OBIORA (1951) 13 WACA 270; ABOYEJI VS. MOMOH (1994) 4 SCNJ (PT 2) 302 @ 313; UZONDU VS. UZONDU (1997) 9 NWLR (PT. 521) 466 @ 482; AMADI V NWOSU (2014) LPELR-24428 (CA). In OBA IPINLAIYE II V OLUKOTUN (1996) 6 SCNJ 74 @ 95, the Supreme Court observed:
……..the trial judge should be careful to avoid placing himself in the position of a witness and arriving at conclusions based on his personal observation of which there is no evidence in support on record. It is not open to substitute the result of his own observation for sworn testimony nor to reach conclusions from his observation at the scene in the absence of any sworn testimony to the existence or non existence of the facts he had observed.
A careful scrutiny of the Record of proceedings revealed that there is no record whatever of what transpired at the visit to the locus in quo. No evidence was given by any of the parties on observations at the scene, no cross-examination occurred. Yet in his judgment at page 160 of the
Record, the learned trial Judge observed:
Upon the application of the Defence Counsel, the court visited the locus delicti or criminis on the 14th March, 2014 where the crime was said to have been committed. To the dismay of the Court, there was no river there……
PW2 pointed to a spot he described by a pole which was a distance of about 80 meters away as the point where the Accused Persons allegedly jumped out of the boat.
I must say that the distance he showed the Court was such that it is improbable that anybody would be able to properly see and later identify criminals under the circumstances described by the prosecution witnesses i.e. that there was confusion arising from the pandemonium caused by the gun shots and attack on NSCDC Officers.
It was even more amazing that there was no Nigerian National Petroleum Corporation (NNPC) Oil Pipeline shown to the Court, neither was there any NNPC sign board showing restricted area shown to the Court.
It is obvious then that the learned trial judge left his hallowed position of arbiter and turned himself into a witness by his observations as to what happened at the locus in the absence of any record in the proceeding on the visit. This is prejudicial to the Appellant. The evidence should have been on record and opportunity given for further clarification through cross-examination. In the circumstances, everything concerning the visit to the locus must be discountenanced. I shall however go on to see whether with the exclusion of the outcome of the visit to the locus, the Appellant discharged the burden of proving all the ingredients of the offences charged beyond reasonable doubt.
In his judgment at page 163 of the Record, the learned trial judge observed:
All the evidence of the prosecution was based on the fact that they saw five (5) men in a canoe with jerry cans and bags containing petroleum products who jumped into the river and swam away. None of the three Accused Persons was arrested at the scene of the alleged crime. None of the three accused persons were arrested while they were dealing in petroleum products. No evidence was put before the Court to prove that any or all of the three (3) Accused Persons were dealing in petroleum product. No evidence was led to show that any relationship ever existed between the three accused persons to convince the Court that there was a conspiracy to deal in petroleum products. None of the Prosecution witnesses conducted any scientific test on the said petroleum product to ascertain the nature of the product. No evidence was led as to which Nigerian National Petroleum Corporation Oil Pipeline was vandalized and the products were taken from without licence. No single evidence was led to show any of the ingredients of the offence for which the Accused Persons were charged.
I think there is merit in the observations of the learned trial Judge above. I am not going to concern myself with the first count of conspiracy because the Appellant did not appeal against that aspect of the judgment. Count 2 is dealing in petroleum product from NNPC Oil Pipeline situate at Magboro without lawful authority. The learned trial Judge is right that the Prosecution led no evidence in proof of the ingredients of dealing in petroleum products. Some of the Prosecution witnesses testified that they saw five men in a canoe with petroleum products who jumped into the river and swam away. They later arrested the Respondents based on tips from informants. The informants were not called to testify. The witnesses gave no indication of the nature of the tips received that led to the arrest of the Respondents. The Respondents denied all the allegations. Apart from the evidence of some of the witnesses who claimed to have recognised the Respondents from citing them at Magboro, the Prosecution
was not able to come up with any evidence that they were dealing in petroleum product from NNPC Oil Pipeline. There was no report of vandalization or tampering with NNPC Oil Pipeline in Magboro or any other near vicinity. The mere fact that the canoe was in an NNPC restricted area cannot amount to evidence of dealing in petroleum products. The Prosecution was obviously acting on mere speculation, suspicions and conjecture. It serves no useful purpose going into the issue of whether what was found in the bags and jerry cans in the canoe were indeed Premium Methylated Spirit popularly known as Petrol as the prosecution failed to adduce convincing evidence that the Respondents were dealing in petroleum products or that the products were indeed from NNPC Oil Pipelines at Magboro. Nearly all the submissions of the Appellant on issue 2 had to do with the evidence of PW5 who was not at the scene of the alleged crime but merely took custody of the items found in the canoe which he tried to preserve and which he tendered in evidence at the trial. His evidence was mostly hearsay. Pictures were taken. He tendered the pictures without calling the photographer who actually took the pictures and without laying the proper foundation to explain why he was not called. He tendered the scientific report of the test carried out by experts without calling the experts and without laying any foundation. PW5’s evidence even if properly tendered would not have salvaged the case of the prosecution. The law is settled that the burden of proof lies on the Prosecution and the standard is proof beyond reasonable doubt. The burden is static and does not shift. See Sections 131 (1) and (2) and 132 of the Evidence Act, 2011. See also the following cases: THE STATE V FATAI AZEEZ & ORS (2008) 4 SC 188; KABIRU VS. A.G. OGUN STATE(2009) 5 NWLR (PT.1134) 209; OSUAGWU VS, STATE (2012) 5 NWLR (PT.1347) 360. Any slightest doubt must be resolved in favour of the accused person. There is doubt as to whether any of the Respondents was one of the suspects in the canoe who dived out of the canoe into the river or waterway. PW1 under cross-examination told the Court that the distance between the vehicle they were in and the canoe in the water was about 80 metres. It is doubtful that with such distance and the shooting that allegedly occurred, PW1 and the other witnesses had sufficient presence of mind for the features of the occupants of the canoe to register in their minds in such a way that they would be able subsequently identify them. More so when PW1 stated that they did not know them previously. There is doubt as to whether any of the Respondents or indeed the occupants of the canoe were dealing in petroleum product from NNPC Oil Pipeline situate at Magboro. There was no evidence as to where the petroleum products in the canoe were obtained from or what they were intended for. There is doubt as to whether the NNPC Oil Pipeline at Magboro if it existed was tampered with. There were too many unresolved issues in the case as regards counts 1 and 2. The evidence was primarily speculative. The learned trial Judge was right in discharging and acquitting the Respondents on counts 1 and 2. This appeal consequently succeeds in part and is allowed in part. The judgment of the Court discharging and acquitting all the Respondents on counts 1 and 2 is affirmed. The judgment of the trial Court discharging and acquitting the 3rd Respondent on count 3 is set aside. In its place, the 3rd Respondent is hereby convicted on count 3 and sentenced to imprisonment for one year or to a fine of N100, 000.00 (One hundred thousand naira).
HARUNA SIMON TSAMMANI, J.C.A.: I concur with the judgment delivered by my learned brother, C. E. Iyizoba, JCA.
The learned trial Judge acquitted and discharged the Appellant and his co-accused on the three (3) counts charge. I agree with my learned brother that the learned trial Judge erred in acquitting the 3rd Respondent on the charge of unlawful possession of ammunition. The offence created by Section 8(1) and punishable under Section 27(b)(ii) of the Firearms Act, is, in my view one of strict liability. Accordingly once a person is charge with unlawful possession of Firearms under the Act, the burden will be on him to prove that his possession is lawful. A provision like this is lawful. See the proviso to Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria, which validates any law
which imposes upon a person charged with a criminal offence the burden of proving certain facts.
It therefore means that, once possession of ammunition is prima facie unlawful, the burden to prove that the possession is lawful lies on the defence. This is because, the burden cast on the prosecution is to prove a negative, and not a positive assertion. Accordingly, the fact of whether his possession is lawful is within the knowledge of the accused person (Appellant herein). The Appellant therefore had the duty to lead credible evidence to show that he possessed the ammunition lawfully. I therefore agree, upon the evidence on record, that the Appellant failed to discharge that burden and the learned trial Judge erred when he acquitted him on that charge.
For the above reason and the other reasons stated in the lead judgment, I agree with the reasoning and conclusions arrived at by my learned brother. I also abide by the verdict of guilty and the sentence passed on the 3rd Respondent on Count 3; and other consequential orders made therein.
NONYEREM OKORONKWO, J.C.A.: I have had the opportunity of reading in draft the lead judgment of my lord Chinwe Eugenia Iyizoba J.C.A. in this appeal whereby the judgment of the trial Court discharging the respondents on counts 1 and 2 was upheld and also setting aside the judgment of the lower Court in count 3 and substituting therefore a term of imprisonment of 1 year or a fine of N100, 000.00.
The lead judgment meticulously examined the entire proceedings at the lower Court and reached sound findings on facts and decisions on law.
The judgment has demonstrated the need in prosecution to carefully analyze a statute creating an offence to crystalize the elements or ingredients of the offence created with a view to leading evidence on those elements or ingredients.
I agree with the lead judgment and abide by the orders made therein.
A.O. Okuselu, Esq. (Legal Officer, Nigerian Securities and Civil Defence Corp, Ogun State) with him, S.S. Adegbanjo (Legal Officer) –For Appellant
Respondents not represented but duly served –For Respondent