Be the First to Know: On When Possession of Firearm Becomes a Crime

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TITLE: DID YOU KNOW THAT POSSESSION OF FIREARMS PER SE IS NOT A CRIME, BUT TO POSSESS SAME WITHOUT A LICENCE TRANSLATES IT INTO A CRIME?

CASE TITLE: OKONKWO LUCKY v. THE STATE (2021) LPELR-53541(CA)

JUDGMENT DATE: 30TH MARCH, 2021

JUSTICES:

  • RITA NOSAKHARE PEMU, JCA
  • HAMMA AKAWU BARKA, JCA
  • JAMES GAMBO ABUNDAGA, JCA

COURT DIVISION:     AKURE

PRACTICE AREA:       Criminal Law and Procedure – Offence of Conspiracy, Kidnapping and

Unlawful Possession of Firearms

FACTS:

One Alhaja Muibat Salam having closed from her shop on the 9th of October, 2012, was on her way home at Oke-Odo, when a Golf car with some persons crossed her way, forced her into the car and was driven outside Ejigbo. She was later transferred into a Trailer Truck with Registration No. ATN 21 XA, and driven to a place along Lagos-Ibadan express road. The persons were armed with guns and she was instructed to call her husband who was then the Speaker of the Osun State House of Assembly, to request that he pays the ransom. The kidnappers were apprehended in a bush with the help of a vigilante man and the Police. The Appellant was one of those arrested, and riffles and a truck were recovered from them. She identified the Appellant as one of the kidnappers. ​Her husband confirmed the story and did state that he was called via GSM No. 07056214501 and 08059018245 to pay ransom for his wife and he reported the matter to the Police and the DSS.

The Appellant and four others were thereafter charged to the High Court of Osun State for the offences of conspiracy, kidnapping and unlawful possession of firearms. All accused persons pleaded not guilty to the charge. At the close of the trial, the Appellant with others were found guilty as charged and convicted and sentenced to imprisonment for seven (7) years for the offence of conspiracy, and ten (10) years for the offence of kidnapping and ten (10) years for the offence of unlawful possession of firearms. The sentences were to run concurrently.

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ISSUES FOR DETERMINATION:

The Appellant was dissatisfied with the judgment of the Court and being desirous of appealing the decision, appealed to the Court of Appeal.

The Court determined the appeal on the following issues:

  1. Whether the charges of conspiracy, kidnapping and possession of unlawful firearms were proved beyond reasonable doubt against the Appellant?
  2. Whether the trial Court was right when it convicted the Appellant despite his untested retracted extrajudicial statement? 

DECISION/HELD:

In a unanimous decision, the appeal was dismissed. Accordingly, the conviction and sentence of the Appellant by the High Court of Osun State was affirmed. 

RATIOS:

  1. CRIMINAL LAW AND PROCEDURE – UNLAWFUL POSSESSION OF FIREARMS AND AMMUNITION: When possession of firearms will amount to unlawful possession of same

“Possession of firearms per se is not a crime, but to possess same without a licence or by any other illegal means translates it into a crime.

PW2 in his testimony said he recovered two (2) AK-47 and four (4) magazines from the Appellant. PW1 had testified that her captives were arrested with guns. In his confessional statement (Exhibit “B”), the Appellant had stated inter alia:

“After two weeks, I saw Chuks again, while I carried him on my motorbike, he told me that his boss has money, himself and some other guys were planning to kidnap him. Two AK47 rifles with many ammunitions were brought to the bush by Uche for the purpose of guarding the woman.”

Decidedly, once a person has knowingly taken possession of an article and it remains within his control, he is said to be in possession. The Appellant cannot be said to be honest in his intentions when he could not explain how he came about those weapons and whether they were licenced.” Per PEMU, J.C.A.

  1. CRIMINAL LAW AND PROCEDURE – UNLAWFUL POSSESSION OF FIREARMS AND AMMUNITION: Statutory provision for the offence of unlawful/illegal possession of firearms; definition of firearms

“The provisions of Section 3(1) of the Robbery and Firearms (Special Provisions) Act, Cap R. 11 Volume 14 Laws of the Federation 2004, stipulates that any person having a firearm in his possession or under his control in contravention of the Firearms Act or any order made thereunder shall be guilty of an offence under this Act, and shall upon conviction under this Act, be sentenced to a fine of N20,000 or to imprisonment for a period of not less than ten years or to both.

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The word “firearm” is defined in the interpretation section to mean:

“It includes any canon, gun, rifle, canibane, machine gun, cap gun, flintlock gun revolver, pistol, explosive or ammunition or other firearms; whether whole or in detached pieces” – Section 11(1) of the Act.” Per PEMU, J.C.A.

  1. CRIMINAL LAW AND PROCEDURE – OFFENCE OF KIDNAPPING: What prosecution must prove in order to sustain a conviction on a charge of kidnapping

“In establishing the crime of kidnapping, the prosecution is required to prove the following viz:

Any person that…

“Unlawfully imprisons any person within Nigeria in such a manner as to prevent him from applying to a Court for his release or from discovering to any other person in the place where he is imprisoned or in such a manner as to prevent any person entitled to have access to him from discovering the place where he is imprisoned is guilty of a felony and is liable to imprisonment for ten years.” Per PEMU, J.C.A.

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