CORAM

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Uchechukwu Onyemenam – Justice of the Court of Appeal

Balkisu Bello Aliyu -Justice of the Court of Appeal

Hadiza Rabiu Shagari -Justice of the Court of Appeal

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PARTIES

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THE STATE

APPELLANTS 

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CHRISTOPHER UDO ISEH

RESPONDENTS 

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AREA(S) OF LAW

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SUMMARY OF FACTS

This case concerns an appeal against the judgment of the High Court of Akwa Ibom State, Ikot Ekpene Judicial Division, delivered on December 3, 2020, by Hon. Justice Augustine D. Odokwo. The original case involved a criminal charge of unlawful possession of firearms contrary to Section 27(1)(a)(i) of Firearms Act, Cap. F28, Laws of the Federation of Nigeria, 2004.

The prosecution’s case, presented through PW3 (the investigating police officer), stated that upon receiving a petition about unlawful possession of firearms, they executed a search warrant at the Respondent’s house and recovered one locally made gun and one live cartridge in his room. The gun was admitted as exhibit 4, along with the Respondent’s extra-judicial statement (exhibit 1) and the search warrant (exhibit 3).

The Respondent denied the charge, claiming that the gun recovered from the back of his house was an old unusable one owned by his father and was not the same as the one tendered by PW3 as exhibit 4. He testified as DW1 and called one witness, DW4, in his defense.

The trial court found that the prosecution failed to prove the third ingredient of the offense of unlawful possession of firearm, having failed to prove that exhibit 4 was the same gun recovered from the Respondent’s house. The Respondent was consequently discharged and acquitted.

 

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HELD

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1. The appeal was dismissed.?

2. The judgment of the High Court of Akwa Ibom State was affirmed.?

3. The Court held that the finding of reasonable doubt regarding the second ingredient of the offense of possession of illegal firearm was supported by evidence.?

4. The fact that the Respondent stated in his extrajudicial statement that a gun was found in his house did not alleviate the prosecution’s duty of proving that the said gun was the type contemplated by the Firearms Act.?

 

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ISSUES

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1. Whether the learned trial Judge was right in holding that the Appellant had not proved the case of illegal possession of firearms against the Respondent beyond reasonable doubt.?

2. Whether the learned trial Judge was right in holding that the evidence of the Respondent’s witnesses with regards to exhibit 4 cast doubt on the mind of the Court to warrant the discharge and acquittal of the Respondent.?

 

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RATIONES DECIDENDI

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BURDEN OF PROOF – REQUIREMENT TO PROVE ALL ELEMENTS OF OFFENSE BEYOND REASONABLE DOUBT

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“The law is clear, provided by Section 135(3) of the Evidence Act 2011 that the burden of proving reasonable doubt in the prosecution’s case is on the accused person. But this is only where the prosecution has proved the commission of the crime against the accused beyond reasonable doubt.” – Per BALKISU BELLO ALIYU, J.C.A.

 

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PROOF OF FIREARM POSSESSION – NECESSITY OF ESTABLISHING TYPE OF FIREARM

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“It is therefore not enough to prove the two ingredients of the offence, that the accused person illegally possessed the firearm without a license, but it must also be proved that the firearm was the type contemplated by the Firearms Act.” – Per BALKISU BELLO ALIYU, J.C.A.

 

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ADMISSION OF EVIDENCE – DISTINCTION BETWEEN ADMISSIBILITY AND WEIGHT

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 “The learned trial Judge in ruling on the objection agreed with the Appellant’s counsel and held that since the items tendered were admissible evidence, it is a matter of weight to be attached to it and held further that ‘learned Defence counsel will have the opportunity to defend and address the Court in his final written address on the issue.'” – Per BALKISU BELLO ALIYU, J.C.A.

 

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EXPERT TESTIMONY – IMPORTANCE IN FIREARMS CASES

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“Under cross-examination contained in page 79 of the record, the Appellant’s PW3 stated that he is not a ‘specially trained as a ballistician’, but he recovered ‘a gun from the 1st accused person, a locally made long gun.'” – Per BALKISU BELLO ALIYU, J.C.A.

 

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WEIGHT OF EVIDENCE – EFFECT OF CONTRADICTORY TESTIMONY

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“What can be discerned from the entire evidence of PW3 is that there was no attempt to explain the type of firearm exhibit 4 is, but it was simply described as a ‘locally made gun’ which the witness admitted he could not know when it was last fixed, and that statement does not convey any meaning in my view.” – Per BALKISU BELLO ALIYU, J.C.A.

 

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APPELLATE COURT’S APPROACH TO FINDINGS OF FACT

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“It is the law that an appellate Court does not interfere with finding of fact of the trial Court unless it is established that the finding is not supported or cannot be traced to the evidence on the record of appeal, or it resulted in miscarriage of justice against the Appellant.” – Per BALKISU BELLO ALIYU, J.C.A.

 

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REASONABLE DOUBT – EFFECT ON PROSECUTION’S CASE

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“Therefore, the finding of the learned trial Judge that there is reasonable doubt that the second ingredient of the offence of possession of illegal firearm has not been proved against the Respondent is clearly supported by evidence or the lack of evidence on record.” – Per BALKISU BELLO ALIYU, J.C.A.

 

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ELEMENTS OF FIREARMS OFFENSE – REQUIREMENT OF PROOF

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“The fact that the Respondent stated in his extrajudicial statement that a gun was found in his house did not alleviate the prosecution of the duty of proving that the said gun was the type contemplated by the Firearms Act and I so hold.” – Per BALKISU BELLO ALIYU, J.C.A.

 

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“The fact that the Respondent stated in his extrajudicial statement that a gun was found in his house did not alleviate the prosecution of the duty of proving that the said gun was the type contemplated by the Firearms Act and I so hold.” – Per BALKISU BELLO ALIYU, J.C.A.

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“Though the ground seems like an omnibus ground, but it is just a look-alike and nothing more. This is because it contained therein a complaint against the specific finding of the trial Court.” – Per BALKISU BELLO ALIYU, J.C.A.

 

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PROSECUTION’S BURDEN – PROOF OF ALL ELEMENTS

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“In this case the evidence of DW3 who was at the scene of the arrest of the Respondent raised reasonable doubt in the case of prosecution.” – Per BALKISU BELLO ALIYU, J.C.A.

 

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PURPOSE OF GROUNDS OF APPEAL

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“It must be borne in mind that the purpose of ground of appeal is to notify the Respondent and the Court the precise grievance against the judgment appealed against.” – Per BALKISU BELLO ALIYU, J.C.A.

 

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WITNESS TESTIMONY – EVALUATION OF CONTRADICTORY EVIDENCE

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“The Appellant as the prosecution had notice of the objection of the Respondent against exhibit 4 it tendered and, ought to have called evidence to prove that the exhibit falls within the contemplation of the Firearms Act, being a requirement of proof placed on it.” – Per BALKISU BELLO ALIYU, J.C.A.

 

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PROOF OF FIREARM TYPE – PROSECUTION’S DUTY

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“The complaint of the Appellant in this appeal is against the trial Judge’s finding that the second element of the offence has not been proved.” – Per BALKISU BELLO ALIYU, J.C.A.

 

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CASES CITED

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1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

2. Evidence Act 2011

3. Firearms Act, Cap. F28, Laws of the Federation of Nigeria, 2004

4. Criminal Procedure Law of Akwa Ibom State

5. Court of Appeal Rules 2021

 

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STATUTES REFERRED TO

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