Gbenga Stephen V. The State (2013)

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Ilorin Division in a lead judgment delivered by Sotonye Denton-West JCA on 10-12-09. In that judgment the Court below upheld the conviction of the Appellant for the offences of being found in possession of a locally made pistol and for cult activities. Dissatisfied further the Appellant has come before this court vides Notice of Appeal dated 8th February, 2010.

FACTS:

By an application for leave to prefer a charge in the High Court dated 2nd October, 2007, the Appellant was arraigned on a three count charge of attempted robbery, unlawful possession of firearms contrary to Section 1 (2) of robbery and firearms (Special provision) Act Cap R11, LFN 2004 and being a member of a secret cult and secret society contrary to Section 11 of Secret Cult and Secret Societies in Higher Institutions (Prohibition) Law No. 6 of Kwara State 2004.

In a considered judgment S. M. Akanbi J of the Kwara State High court delivered on 7th July 2008, the Appellant was found guilty of being in unlawful possession of firearms and being a member of a secret cult. The learned trial judge sentenced the appellant to a term of 3 years imprisonment with option of N10,000.00 fine for the offence of unlawful possession of firearms while the same appellant was also sentenced to 10 years imprisonment and N50,000.00 fine for being a member of a secret cult.

The background to this appeal is that the Appellant until his arrest was a student of the Federal Polytechnic Offa, Kwara state as an HND 1 student in the Department of Marketing.

The Appellant was charged and tried for the offences of attempted robbery, unlawful possession of firearms and being a member of a secret cult. The prosecution called 5 witnesses and tendered five exhibits marked Exhibits 1, 2, 3, 4 and 5 while the Appellant was his only witness.

In the course of that trial PW2 and PW5 testified that the appellant came to their house at Offa and pointed a locally made pistol at PW2 which he PW2 later wrestled from the appellant who escaped only to be later arrested and taken to the Police Station, Offa. A Buccaneer’s sticker which was allegedly recovered from the house of the Appellant was tendered and admitted as Exhibit 2.

A confessional statement of the Appellant was admitted as Exhibit 5 in which appellant said he was initiated to the Buccaneer cult group along with other persons whose names he stated. That the initiation took place sometime in 2003 at a bush in Offa by one Wale, Niyi and others. That he was contracted by Sunday Adeniran to intimidate PW2 and on getting to the house of pw2, on knocking at the door and the door being opened he, Appellant pointed the locally made pistol (Exhibit 1) at pw2 who wrestled the said exhibit from him while he ran off but later apprehended.

On his arrest a search was conducted in his house by the police led by PW3 and the two Buccaneer stickers (Exhibit 2) were recovered. The appellant was convicted as charged by the trial court which conviction was upheld by the Court of Appeal.

On the 10th day of January 2013 when this appeal was heard, the learned counsel for the Appellant adopted the Brief of argument settled by M. J. Onigbanjo filed on 11/8/11 and deemed filed on 24/10/12. In the Brief were couched two issues for determination stated as follows:-

1. Whether on the facts placed before the trial judge, the Court of Appeal was right to have upheld the conviction of the Appellant for the offence of being a member of a secret cult contrary to Section 11 of Secret Cult and Secret Societies in Higher Institutions (Prohibition) Law, No.6 of Kwara State, 2004 (Relates to Grounds 1, 2, 3 and 4 of the Grounds of Appeal).
2. Whether the Court of Appeal was right to have upheld the learned trial judge’s decision that it had no discretion to exercise when imposing punishment under Section 11 of Secret Cult and Secret Societies in Higher Institution (Prohibition) Law No. 6 of Kwara State, 2004 (Relates to Ground 5 of the Grounds of Appeal).

Learned counsel for the Respondent adopted their Brief settled by J. A. Mumini Esq and filed on 8/1/13. He adopted the issues as formulated by the Appellant. I would also utilise those issues as framed.

ISSUE 1:

This is an issue that has to do with whether the facts placed before the trial court, the Court of Appeal was right to have upheld the conviction of the Appellant for the offence of being a member of a secret cult contrary to section 11 (1) of secret cult and secret societies in Higher Institutions (Prohibition) Law No.6 of Kwara State, 2004.