Kelly V. State (2022) LLJR-SC

Kelly V. State (2022)

LAWGLOBAL HUB Lead Judgment Report


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.

See also  Dr. Michael Emuakpor Abeke V. Barrister A.a. Odunsi & Anor (2013) LLJR-SC

​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.

I cannot agree more.

​It is indeed settled that for the respondent to secure conviction in respect of the charge of unlawful possession of Firearms pursuant to Section 3(1) of the Robbery and Firearms (Special provisions) Act Laws of the Federation of Nigeria 2004, it must prove:-

(i) That the appellant is found in possession of firearms.

(ii) That the firearms is within the meaning the provided by Act.

(iii) That the appellant has no licence to possess the firearms.


It is clear from the foregoing decisions of this Court that the intent of the legislature in Section 3(1) of the Robbery and Firearms (Special Provisions) Act is, once a person is shown to be in possession of firearms and has no licence permitting him to be in possession, he is liable. By Section 11(1) of the Robbery and Firearms (Special Provisions) Act, “Firearms” includes any gun.

See also  O. Akinfosile Vs J. A. Ijose (1960) LLJR-SC

At page 31 of the record of appeal, PW2’s evidence thereat inter-alia reads:-

“On 8/7/2015 I led a patrol team along Ise/Orun, Emure Road at about 11.30 am. When a passenger vehicle from Emure side was approaching I stopped the vehicle. The driver parked, I started to interview the passengers inside the vehicle. One of the passengers excused himself to ease himself and allowed him. One passenger, by name Arumegba Kelly was sitting down with the driver in front. I interviewed him and when I read the body language I decided to search the vehicle. In the process I opened the pigeon hole of the vehicle, I saw a black nylon wrapped. I asked the driver the owner of the black nylon. He pointed at the first defendant as the owner. When I opened it I discovered a locally made Pistol and a Cartridge I immediately placed him under arrest.” (Underlining supplied for emphasis).

PW3 reinforces the foregoing in his testimony at pages 33- 34 of the record thusly:-

“l remember 8/7/15. On that day I was among the team of NDEA operative on a moorised patrol led by Balami Ojbidah (PW2) along Ise/Emure road. At a point on the road we stopped and searched a vehicle (taxi) coming from Emure with six passengers, we asked the driver to come down that we wanted to conduct a search… In the front seat, where the 1st accused was sitting, PW2 opened the pigeon hole and saw a black polythene bag containing a pistol (locally made) with cartridge. PW2 asked the driver the owner of the polythene bag. The driver said the nylon bag belonged to the 1st accused. The 1st accused was arrested and we went further to search the vehicle.” (Underlining supplied for emphasis).

Under cross examination, PW3 persisted as follows:-

“…As security agent I understand what investigation is all about. I was present when PW2 stopped the taxi… The 1st defendant confirmed that the black nylon bag belonged to him.

…Exhibit A is what we recovered from the pigeon hole.” (Underlining supplied for emphasis).

The trial Court in relation to the evidence led by the prosecution, firstly held at page 78 of the record as follows:-

“In my view, it is difficult for the defendants to have denied ownership of the gun, cartridge and axe which were recovered from them because the evidence adduced by the prosecution without doubt adequately linked the defendants with the gun and other items found with them. I say this because the defendants according to the evidence proffered in the case were not the only people in the vehicle and no reason was advanced by the defendants why the witnesses would want to implicate them. PW2 said the driver pointed to the 1st defendant as the owner of the black nylon bag that contained the gun. There is no evidence that the 1st defendant raised any objection when the driver pointed to him as the owner of the load. First defendant did not protest when the driver who was in a better position to identify and link the load in his vehicle with the passengers he carried pointed to him. It is too late in the day for the 1st defendant to deny ownership of the gun. PW2 was neither cross-examined on the fact that the driver pointed to the 1st defendant nor that the 1st defendant denied same and protested. It only shows that the evidence given by the PW2 in his evidence in-chief was true and accepted by the defendants as evidence of what transpired at the spot where the 1st defendant was arrested.” (underlining supplied for emphasis).

The Court at page 81 of the record after further evaluation of the evidence led inferred as follows:-

“From the evidence of PW2, the locally made gun and cartridge were found in a black nylon kept in the pigeon hole of the vehicle which PW2 said the driver pointed to the 1st defendant as the owner. I believe the evidence of PW2 and PW3 which is in consonance with the facts and circumstances of the case. I reject the evidence of the 1st and 2nd defendants that they …have anything to do with the firearm found with them. The defence put up by them in Court, which runs counter to their statements particularly the statement of 1st defendant to the Police appears to me to be an afterthought. I reject it.” (Underlining supplied for emphasis).

See also  Akanni Ogundimu V The State (1981) LLJR-SC

On the appellant’s extra-judicial statement, learned appellant counsel insists has swayed the mind of the trial Court, the Court’s finding in relation to the statement, exhibit C, at page 82 of the record reads:-

“The first defendant had raised the issue of involuntariness of his statement to the police in his evidence before the Court when he said he was tortured and forced to make the statement. In my view, the alleged confessional statement is not confessional and that probably account for the reason why the learned counsel for the 1st defendant did not raise objection at the point of tendering the statement. Even if the statement is confessional, the position of the law is that the question of the voluntariness of a confessional statement is tested at the time the statement is sought to be tendered in evidence.” (Underlining supplied for emphasis).

The trial Court at page 85 of the record concludes thus:-

“The defendants who denied having in their possession the gun found with them did not in any way justify their possession of the gun by producing their licence to hold the gun. The defendants having failed to produce their licence which authorized them to possess the gun legally, I hold the view that the prosecution has proved that the defendants have no licence to possess the firearms. The prosecution has therefore proved beyond reasonable doubt all the ingredients of unlawful possession of firearms against the defendants.” (Underlining supplied for emphasis).

The lower Court’s affirmation of the trial Court’s foregoing findings is what the appellant contends is perverse.

I completely disagree!

​It is very glaring from the trial Court’s findings, as herein earlier reproduced, that appellant’s conviction for unlawful possession of firearms is founded entirely on the evidence of PW2 and PW3 the Court found credible. The conviction does not evolve from the extra-judicial statement of the appellant the Court adjudge not to be confessional. It is trite that the evaluation of evidence and ascription of probative value to it is the primary duty of the trial Court. Where the task, as in the instant case, turns on the credibility of the witnesses, the appellate Court is invariably handicapped. Since it was the trial Court that heard, saw and watched the demeanour of the witnesses, it is incumbent to respect the Court’s conclusions from the exercise except where they are demonstrated to be perverse. See CHIEF SAMUSIDEEN AFOLABI AYORINDE & ORS V. CHEF HASSAN SONGUNRO & ORS (2012) LPELR-7808 (SC) and CPC V. INEC (2011) LPELR-8257 (SC).

In the instant case, the trial Court which decision the lower Court affirmed having creditably discharged its primary duty in evaluating the evidence led by parties before it, its decision as affirmed cannot be interfered with. I so hold.

The sole issue in the appeal is resolved against the appellant and the unmeritorious appeal resultantly dismissed. The concurrent findings of the two Courts below are hereby further affirmed.


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