Kelly V. State (2022)

LAWGLOBAL HUB Lead Judgment Report

MUSA DATTIJO MUHAMMAD, J.S.C. 

My lords, this appeal being against concurrent findings of fact(s), we need to remind ourselves that the Court, especially where the findings turn on the credibility of witnesses, hardly intervenes. However, where the findings are shown to be perverse the Court will, all the same, reverse the findings. See SUNDAY V. STATE (2017) LPELR-42259 (SC), WOLUCHEM & ORS V. CHIEF GUDI & ORS (1981) 5 SC 291, CHINWEDU V. MBAMALI & ORS (1980) 3-4 SC 31, AJIBOYE V. FRN (2018) LPELR – 44468 (SC) and ATOLAGBE V. SHORUN (1985) LPELR-592 (SC).

A decision, a finding, is said to be perverse if it does not draw from the evidence on record and/or where the Court wrongly apply legal principles to correctly ascertained fact(s) and by so doing occasion injustice. See QUEEN V. OGODO (1961) 2 SC 366, MOGAJI V. ODOFIN (1978) 4 SC 91 and BARRISTER CHIDI NOBIS-ELENDU V. INEC & ORS (2015) 6 SCM 117 at 134.

In the instant appeal, are the findings of the two lower Courts perverse to warrant our intervention?

The appellant, alongside one other person, was arraigned at, tried and convicted by the Ekiti State High Court, hereinafter referred to as the trial Court, for being in unlawful possession of firearms contrary to Section 3(1) of the Robbery and Firearms (Special Provision) Act, Laws of the Federation of Nigeria 2004. He was sentenced to ten years imprisonment. His appeal against the trial Court’s judgment dated 16th March 2017, was filed on 4th May 2017 at the Ekiti Division of the Court of Appeal hereinafter referred to as the lower Court. The appeal was dismissed on the 5th day of December 2019 by the lower Court.

Dissatisfied, the appellant has, by a notice filed on 18th December 2019, further appealed to this Court.

Of the two issues the appellant distilled in his brief settled by Ikechukwu Uwanna, Esq., the most apposite and on which basis the appeal will be determined reads:-

“Was the lower Court right to uphold the decision of the trial Court in view of the totality of evidence before it?”

The similar issue formulated in the respondent’s brief settled by Julius Ajibare, Esq., as arising for the determination of the appeal is:-

“Whether the Court below was not right in affirming the decision of the learned trial Court that the Respondent, considering the totality of evidence adduced before the trial Court, proved the one-count charge of unlawful possession of firearms beyond reasonable doubt against the Appellant”.

On the lone issue, it is argued in the brief, which learned appellant’s counsel adopted as their argument for the appeal, that the trial Court’s decision which the lower Court affirmed, is founded on the trial Court’s wrong reliance on appellant’s purported extra-judicial statement. Referring inter-alia to SUBERU V. THE STATE (2010) LPELR-3120 (SC), ADELUMOLA V. STATE (1988) LPELR-119 (SC), learned appellant’s counsel submits that appellant’s extra-judicial statement that has not been subjected to the test of truth cannot constitute the basis of his conviction: The lower Court, it is submitted, is in no position to affirm the trial Court’s erroneous finding.

​Beyond the extra-judicial statements of the appellant and his co-accused, the testimonies of the three witnesses the respondent led, it is further submitted, do not sustain the trial Court’s conviction and sentence as affirmed by the lower Court. PW1, the investigating police officer, was not at the scene of arrest of the appellant where the confession of his being in unlawful possession of exhibits A and B was made. The extra-judicial statements of PW2 and PW3 that the appellant and his co-accused had confessed to being owners and in possession of the weapons were never tendered at trial. Neither the extra-judicial statements of the other passengers, including the driver of the vehicle the weapons were recovered from, nor their evidence were tendered or led in Court. Citing SALE V. STATE (2016) 3 NWLR (PT 1499) 392 at 415, STATE V. NNOLIM (1994) 5 NWLR (PT 345) 394 at 406 and SECTION 167(D) OF THE EVIDENCE ACT 2011 learned counsel contends that respondent’s failure to avail the trial Court these vital evidence is fatal to the trial Court’s decision as affirmed by the lower Court. The constitutional requirement that the offence the appellant is charged be proved beyond reasonable doubt having not been met, concurrent as the findings of the two Courts on appellant’s guilt are, being perverse, it is urged, should be set-aside and the appeal allowed.

​In answer to the appellant’s arguments, learned respondent’s counsel asserts that the evidence on record does not support appellant’s position. Appellant’s denial that he had not made the extra-judicial statement the trial Court admitted in evidence does not render the statement inadmissible. Relying on IDOWU V. STATE (2000) FWLR (PT 16) 2672, AIGUOREGHIAN V. STATE (2004) ALL FWLR (PT 195) 716, NWAEBONYI V. STATE (1994) 5 NWLR (PT 343) 138, learned counsel submits that all the trial Court needed to do about the statement is to decide the weight to attach to it. The appellant recorded exhibit C, his statement, himself. He never led any evidence, it is further contended, to show that the statement was not what he recorded or that at the time he recorded the statement he was of unsettled mind. Appellant’s retraction from the statement as recounted in HASSAN V. STATE (2001) 6 NWLR (PT 709) 286, learned counsel submits, remains an afterthought.

​The testimonies of PW1 and more so PW2 and PW3, learned counsel further submits, contain facts which the trial Court finds and the lower Court rightly affirms, establish appellant’s guilt for the charge. PW2 and PW3 in their evidence directly linked the appellant with the gun recovered from the vehicle they stopped and searched while on patrol duty on the fateful day. The driver of the vehicle, in answer to the enquiry made by PW2 as to the owner of the black nylon that contained the pistol, pointed at the appellant. Appellant at that point, it is submitted, neither denied the driver’s assertion nor offered any explanation. The appellant cannot now be heard to suggest that these facts have not established the offence under Section 3(1) of the Robbery and Firearms (Special provisions) Act Laws of the Federation 2004. Referring inter-alia to NWACHUKWU V. STATE (2002) FWLR (PT 123) 312, OSENI V. STATE (2011) 6 NWLR (PT 1242) 138 and STATE V. OLADOTUN (2011) ALL FWLR (PT 586) 399 at 410 in support of his submissions, learned respondent’s counsel urges that the lone issue be resolved against the appellant and the unmeritorious appeal dismissed.