Ekanem Joseph Stephen V. State (2008)

LawGlobal-Hub Lead Judgment Report

THERESA NGOLIKA ORJI-ABADUA, J.C.A.

The charge preferred against the Appellant at the trial Court was thus:

“unlawful possession of firearms contrary to section 3(1) of the Robbery and Firearms (Special Provisions) Act Cap. R.11 Vol.14, Laws of the Federation of Nigeria, 2004”.

The particulars of the offence read that the Appellant, Ekanem Joseph Stephen, was found to be in possession of a locally made revolver pistol without a licence or permit along Goldie Street, Calabar on the 10th July, 2005. He was arraigned on the 31st March, 2006 and trial commenced immediately. At the trial, the prosecution called two witnesses while defence presented only one witness. At the conclusion of the trial, and, in finding the Appellant guilty, the learned trial Judge held at pages 85 and 86 thus:

“Since I had earlier held that I will not consider Exhibit “C” as a confessional statement, it would no more be material whether or not it was confirmed before a SUPOL.

Now, what explanation did accused person give for being in possession of Exhibit “B”. Accused offered none to the Police. I have disbelieved his denial in Court.

I therefore find the accused person guilty as charged. The way section 3 (1) of the Robbery and Firearms (Special Provisions) Act is couched, it is either an accused person is not guilty and is acquitted or is guilty and must be sentenced to a term of not less than 10 years or N20,000 fine.

There is the prevalence of violent offences committed with firearms in Calabar where young men would not let law abiding citizens live in peace. Snatching telephone handsets and motorcycles from people with firearms is on the increase in Calabar. In view of the need to protect the budding tourism we are trying to build in our state, I will not give the accused person the option of fine to keep him out of circulation for sometime and serve as a deterrent to others like him still outside engaging in such nefarious activities.

I sentence the accused person, EKANEM JOSEPH STEVEN to 10 years imprisonment. The period he has already spent in custody shall be computed as part of the 10 years.

It was following this that the Appellant filed the present appeal and in his Appellant’s Brief of Argument, two issues were identified for determination. They are:

“1. Considering the state of evidence, particularly, the scrappy, weightless, unreliable, terse and contradictory evidence led by the prosecution, whether or not the prosecution had proved the ingredients of the offence necessitating the conviction and sentence of the Appellant.

2. Considering the discretion of the lower Court in passing a sentence, whether or not the lower Court passed the sentence of ten years imprisonment against the Appellant on the right principle.”

The Respondent for it’s part adopted the two issues as they were propositioned by the Appellant.

Learned Counsel for the Appellant, Nta A. Nta, Esq., on the first issue, submitted that in every criminal trial, the law casts the onus on the prosecution to prove the criminal charge preferred against an accused person beyond reasonable doubt, and, if on the totality of the evidence, a reasonable doubt was created, the prosecution would have failed to discharge the onus of proof as required by law thereby entitling the accused person to the verdict of acquittal. He referred to the cases of Bolanle V. State (2005) 7 NWLR (Part 986) 508 at 523 paras. D-E, and Igabele V. State (2006) 6 NWLR (Part 975) 100 at 131 para. D, See Fatoyinbo V. A-G, Western Nigeria (1961) NWLR 4: and State V. Danjuma (1997) 5 NWLR (Part 506) 512 and section 138 of the Evidence Act. Cap. 112, Laws of Federation of Nigeria, in support of his assertions. Counsel stated that by the provisions of section 3(1) of the Robbery and Firearms Act, Cap. 398 Vol. XXII Laws of Federation of Nigeria, for the prosecution to succeed, it must prove the following ingredients:

“(a) Having a firearm in his possession or under his control, and