EMMANUEL ZACHEOUS v. PEOPLE OF LAGOS STATE
(2015)LCN/7818(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 17th day of March, 2015
CA/L/593/2012
RATIO
EVIDENCE: PROOF BEYOND REASONABLE DOUBT; WHETHER ANY LINGERING DOUBTS MUST BE RESOLVED IN FAVOUR OF THE ACCUSED PERSON WHERE AN ALLEGED CRIME HAS NOT BEEN PROVED BEYOND REASONABLE DOUBT
It is trite that where an alleged crime has not been proved beyond reasonable doubt, any lingering doubts must be resolved in favour of the accused person – See Kalu V. The State (1988) 4 NWLR (Pt.90) 503 SC, and Okonji V. The State (1988) 1 NWLR (Pt.52) 659 SC. Any doubts in the mind of the Court should always be resolved in favour of the Accused, and I will add – across the board. per. AMINA ADAMU AUGIE, J.C.A.
COURT: DISCRETION OF THE COURT; WHETHER THE EXERCISE OF THE COURT’S DISCRETION MUST BE SEEN TO HAVE BEEN EXERCISED JUDICIALLY AND JUDICIOUSLY
The Appellant countered that the exercise of discretion in sentencing him to 14 years imprisonment cannot be regarded as judicially and judiciously exercised, where the lower Court failed to consider the fact that he is a first time offender, and without any prior criminal record, so it can be set aside, citing UBN Plc. v. Astra Builders (W.A.) Ltd (2010) 5 NWLR (Pt.1186) 1 SC. Yes, the sentencing power of a Judge is predicated on his discretionary powers, which must be seen to have been exercised judicially and judiciously – see Isang V. The State (1996) 9 NWLR (Pt.473) 458, Igboanugo V. The State (1992) 3 NWLR (Pt. 228) 176. per. AMINA ADAMU AUGIE, J.C.A.
JUSTICES:
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
Between
EMMANUEL ZACHEOUS – Appellant(s)
AND
PEOPLE OF LAGOS STATE – Respondent(s)
AMINA ADAMU AUGIE, J.C.A. (Delivering the Leading Judgment): The Appellant was arraigned before the Lagos State High Court on 7/3/2011, and he pleaded not guilty to a charge of conspiracy to commit armed robbery and armed robbery against him. To prove its case, the prosecution called –
PW1, Corporal Joseph Ogunmiloro of the Gowon Estate Police Station, who testified that a complainant lodged a complaint that he and his wife were robbed at “Shasha”, and dispossessed of their belongings, including mobile phones. They got information that armed robbers were sharing their loot, and went to the place in question where they rounded them up. The Appellant was arrested but two others escaped.
They recovered a cutlass and the mobile phones, and transferred the matter to the Special Anti-Robbery Squad for further investigation.
PW2, Kezie Gregory Nwachinemere, the Complainant, who testified that the incident occurred when he was escorting his wife to the Bus Stop at about 5.30 to 5.45am in the morning of 16/9/2009 at “shasha”.
They were accosted by two men; one was short in stature and held a machete while the other man acted as if he was about to pull a gun.
They were made to lie on the ground, and were dispossessed of mobile phones, jewelry, bank debit cards and money. The robbers jumped on a motorcycle and left. Later that same morning, his son received a call from his brother-in-law, who told him to pass a message to PW2 that he should go to the Gowon Estate police station, as someone had called his brother-in-law to say that their mobile phones had been recovered.
He quickly left for the Station, where he identified the stolen phones, and one of the robbers as the face he saw; the one with the long knife.
He went back with his wife but they were told that the case had been transferred to the State Headquarters. He further testified as follows –
“We drove there and met the Officer in charge. There they brought out the phones, the culprit and the knife that he raised on us. I identified my phone – a Samsung XJ 700. My wife identified 2 of hers, which were Nokia. I cannot remember the particular type. We made our Statements and left. They released the phones to us, and we signed for them”.
PW3, Inspector Charles Onwuka with the Special Anti-Robbery Squad, who said that he was a member of the team that investigated the case.
Under cross-examination, he stated that the Appellant was transferred to SARS from Gowon Estate Police Station with the original case file, the cutlass and the stolen telephones that had been recovered from him.
PW4, Sergeant Famous Erin, also with the Special Anti-Robbery Squad, who testified that PW2 and his wife, told him of how they were robbed of their valuables by the Appellant and the two other men still at large.
He also said that their mobile phones were released on bond to them.
In his defence, the Appellant testified as DW2, and called one other witness, Mrs. Omowunmi Omolaye, as DW1. She described him as her “junior brother”, but later said that his mother was her sister. She had invited him from Minna, and he lived with her for a while in Lagos before he moved into his own place.
He worked for her husband until 2002, when her husband’s friend gave him a motorcycle for commercial use, and he also repaired generators. It was not long after he moved out of her place that she heard that he had been arrested.
She said that he did not engage in stealing, and was not known to be a thief.
In his testimony as DW2, the Appellant said that he grew up in Minna, where he had learnt how to repair motorcycles and generators from his father.
He confirmed what DW1 said, and added that he usually picked up a customer known as “Obanla” from “Ajao Estate in Gowon Estate” to Computer Village, every morning and take him back home in the afternoon. On the said 16/9/09, he parked outside his door, and was about to call him when he saw a crowd, who referred to his motorcycle as the type “they” brought and came after him.
Obanla came out and asked what was going on and the crowd accused him of being a thief. Obanla tried to speak up for him but without success, and he was eventually taken to Moshalashi Police Station. He received beatings from the Police and was later taken to the Special Anti-Robbery Squad (SARS), where he was shot in the leg because he had refused to disclose his residence.
After being shot, he agreed to take them to his house and they searched for a gun but did not find any. He was also forced to make a confessional statement.
Upon the close of trial, Counsel on both sides filed Written Addresses, which they adopted on 26/1/2011. The learned trial Judge, L. A. Okunnu, J. delivered his Judgment on 16/4/2012, wherein he concluded as follows –
“In the final analysis, I state thus. PW2, whilst testifying before the Court, never positively identified the Defendant, and never confirmed to the Court that he was the very same person that he had recognized and identified at the police station. The Defendant, however, was arrested a short time after the robbery incident, and within the same locality, with some of the stolen properties of the Nwachinemeres- all their mobile telephones. At best, the Defendant is guilty of receiving those stolen goods, See, here, S. 167(a) of the Evidence Act. In the event, I hereby acquit the Defendant of the charge of armed robbery, and by necessity, of the charge of a conspiracy to commit the said armed robbery. The Prosecution did not prove the commission of those two offences to the requisite standard in criminal proceedings, I however find him guilty of the lesser offence of receiving stolen property, contrary to the provision of S.427 of the Criminal Code Law of 2003 (the law then in force), as the evidence to this effect stands incontrovertible. He is, therefore, hereby convicted of the latter offence. This is the judgment of the Court”.
Thereafter, he sentenced him “to the maximum term of 14 years imprisonment but sentence will commence as from the date he was put in police custody”.
Aggrieved by the conviction and sentence, the Appellant appealed to this Court with a Notice of Appeal containing three Grounds of Appeal. He distilled two Issues for Determination there-from in his Brief of Argument prepared by E. A. Oyebanji, Esq., David Aransiola, Esq., and M. A. Olarenwaju, Esq.; and that is –
1. Whether the Honourable trial Court was right in convicting the Appellant for the offence of receiving stolen property when there is no evidence before the court to prove the offence beyond reasonable doubt.
2. Whether or not in the circumstances of this case the terms of imprisonment to which the Appellant was sentenced are not excessive.
The Respondent adoted the two issues as formulated by the Appellant in its rief of Argument prepared by Obafemi Adamson, Esq. and I will also do same.
The Appellant submitted under Issue 1 that it is an elementary principle of law that a Court cannot rely in its Judgment on evidence not before it, citing Shekete v. The Nigerian Air Force (2000) 15 NWLR (Pt.692) 868, Kasimu v. NNPC (2008) 3 NWLR (Pt.1075) 569, and Ehirim v. Imo State Independent Electoral Commission & Ors. (2012) LPELR-SC.139/2008. He further argued that the stolen telephones and other items allegedly found in his possession, were never tendered or proved to exist, and the Prosecution failed to tender the said bond that could show beyond reasonable doubt that they existed and were released to the Complainants; that PW1 did not give any categorical or positive evidence that they were found in his possession, and the lower Court found that he carried out no real investigation; that PW2’s evidence was not cogent, positive and reliable to establish that they were found in his possession as he did not witness his arrest and their recovery from him; that his testimony that it was phones stolen from him and his wife that the police showed him, did not prove they were in his possession at the time of his arrest; that if PW1 did not give categorical, cogent and positive evidence that they were found in his possession, then the evidence it PW3 and PW4 that they were recovered from him will not stand, as the lower Court rightly found that their evidence could not stand on their own but could only shore up PW1’s evidence that he was one of the men suspected of having robbed the complainants, and their belongings were stolen and nothing more; and that its findings and evidence of the witnesses cannot sustain his conviction in the absence of strong, credible, direct, cogent and positive evidence that there was stolen property, which ought to have been tendered in evidence, and which were found in his possession at the time of his arrest, citing Omopupa v. State (2007) LPELR-CA/IL/C.79/2006.
Furthermore, that before it could draw the presumption of receiving stolen property as the lower court did, the evidence must be cogent, conclusive and positive as the Prosecution has a duty to tender the said stolen phones and/or tender the bond signed by Complainants; that mere oral evidence of witnesses who did not witness his arrest or recovery of the stolen item from him will not suffice as cogent, conclusive and positive evidence to prove that any property were recovered from him; that the lower Court found that the failure to tender the machete allegedly found with him seriously affected the Prosecution’s case of armed robbery against him, and so it was wrong to convict him of receiving stolen property allegedly recovered from him when they were never tendered along with the bond to prove that they were released to the Complainant; that it also found that no single exhibit was tendered before it, and that the only evidence before it consists of oral testimony of Prosecution witnesses; that it is trite that every ingredient of an offence must be established to that standard of proof so as to leave no reasonable doubt of the guilt of an accused, citing Aiguoreghian V. The State (2004) 3 NWLR (Pt.860) 367; that the lower Court found that there was no categorical connection between the person shown to PW2 and him, and if there was no such categorical connection, it was wrong to somersault and conclude that what is certain beyond reasonable doubt is that the stolen phones were recovered from him as lack of connection between the person shown to PW2 and him definitely created a reasonable and genuine doubt that the stolen phones were recovered from him; that the lower court is bound by its record, citing OOMF Ltd. v. NACB Ltd. (2008) Vol.44 WRN 162; and that the lower Court’s Record and its findings clearly show that –
– There was no connection between the person shown to PW2 in the cell and him.
– The person shown to PW2 in the cell was not the same person as him.
– The stolen phones were recovered from the person arrested by the police and put in the police cell.
– The stolen phones were not recovered from him and/or found in his possession.
On its part, the Respondent submitted that it is a trial Court’s duty to evaluate evidence before it in reaching a just conclusion and since it is a master of facts, this Court will not ordinarily upturn its decision except where it is perverse, citing Akinbisade v. State (2006) 17 NWLR (Pt. 1007) 184, Gboko V. State (2007) 17 NWLR (Pt. 1063) 272; that a Defendant can be convicted of a lesser offence where the elements of the offence/offences charged are not proved, citing Adava V. State (2006) 9 NWLR (Pt. 984) 152; that it is the law that where there is uncontroverted and unchallenged evidence that the stolen property was found in the possession of a Defendant, the Court is bound to believe the testimony adduced in proof of this fact in the absence of contrary evidence, citing Oforlete V. State (2000) 12 NWLR (PT. 681) 415; that the Appellant’s contention is misplaced and authorities he cited have no bearing in this case; that it is interesting to note that he could not cite any authority wherein the court found that unless and until the goods received are tendered in evidence, the trial Court cannot convict on oral and incontrovertible evidence, which will tantamount to saying that Courts cannot convict without tendering murder weapons in some murder cases
nor can it found for armed robbery where the offensive weapon is not tendered; and the answer is simply in the negative, citing Alor V. State (1986) 4 NWLR (PT.445) 726. It conceded that it has a duty to prove his guilt beyond reasonable doubt, but argued that it has been held in plethora of cases that the proof is not beyond all shadow of doubt, citing Bozin v. The State (1985) 2 NWLR (Pt.8) 465, Nasiru v. The State (1999) 1 SCNJ 94, Woolmington V. DPP (1935) A. C. 462; and that S.140(a) of the Evidence Law is the Nigerian equivalent of the English doctrine of Recent Possession (of Stolen Goods), and for this doctrine to operate there ought to be evidence –
1. That the accused (here the Appellant) was found in possession of some goods.
2. That those goods were recently stolen.
3. That the Appellant failed to account for his possession.
Furthermore, that the expression “soon after the theft” – (that is – how soon will the possession be to lead to the inference that the possessor was the thief and not merely the receiver with guilty knowledge?) will naturally depend on the nature of the goods and the facility and ease with which that type of goods can pass from hand to hand, citing R V. Palmer Iyakwe (1944) 10 WACA 180, Kwartia Kwashie V. The King (1930) 13 WACA 86; that the Appellant could not lead evidence on how he came about the stolen phones found with him within the space of an hour after the incident when the evidential burden shifted to him as rightly held by the lower Court; and the lower Court was right to have convicted and sentenced him for the said offence of Receiving Stolen Property.
The Appellant countered that there are co-existing circumstances that weaken and/or destroy the inference that he is a receiver of stolen property, referring to Akinbisade V. State (supra); that an Appellate Court will interfere with a Trial Court’s findings where it arrives at inconsistent findings on a crucial issues raised, citing UNB Plc. V. Akinrinmade (2000) 2 NWLR (Pt. 645) 467, Uzoechi V. Onyenwe (1999) 9 NWLR (Pt.587)339, Jov. V Dom (1999) 9 NWLR (Pt.620) 538, Menaghor v. Bazuaye (1999) 9 NWLR (Pt.620) 552; and that the said co-existing circumstances that weaken and destroy the inference that he is a receiver of any stolen telephones or any property at all are as follows-
i. It was the lower Court’s finding that there is no categorical connection between him arraigned before it and the person arrested by the police and shown to PW2 in the cell definitely from whom PW2’s stolen phones were allegedly recovered.
ii. A police bond, which could have clearly shown that the stolen phones were found in his possession and/or recovered from him and the same telephones were released and or handed over back to the owners, was never tendered in evidence.
He also contends that in the circumstances of this case, this Court has a duty to interfere with the inconsistent findings of the lower Court; that contrary to the Respondent’s argument, the law not only requires the Prosecution to prove all the constituents of the offence charged but also ALL THE FACTS are required to be proved, which the Prosecution has woefully failed to do in this present case.
He cited Ekanem V. The State (2009) LPELR-CA/PH/135/2005, Kano v. Nigeria Army & Anor. (2008) LPELR-CA/A/98/C/06, Anyankpele v. Nigerian Army (2000) 12 NWLR (Pt.684) 209, Umeania v. Emardi (1996) 2 NWLR (Pt.340) 348, Adeyeye v. Ajiboye (1987) 3 NWLR (Pt.61) 432, Oniah v. Onyia (1989) 1 NWLR (Pt.99) 515, and Stephen v. State (1987) 5 NWLR (Pt.46) 978, and argued that the Prosecution’s case is fraught with genuine and reasonable doubt, which are not shadow of doubt, and having failed to tender the stolen phones allegedly recovered from him or the police bond upon which they were released to their owners in evidence, it is trite law that reasonable doubt must be resolved in his favour, citing The State V. Anibijuwon & Ors (2011) LPELR-CA/ I/133C/2006, Seneviratne V. R. (1936) All E.R. 36, Okpulor V. State (1990) 7 NWLR (PT 164) 581 and Oduneye V. State (2001) 2 NWLR (Pt. 697) 311; that having failed to lead a credible, cogent and positive evidence to show that they were found in his possession and recovered from him, the presumption of facts as contained in S. 167(a) of the Evidence Act that he was the receiver of the stolen phones does not arise and he could not be called upon to give account of the stolen phones, which were not proved to be in his possession; and that the said S. 140(a) of the Evidence Law is not relevant in this case.
Basically, the Appellant’s contention is that since the lower Court found that failure to tender the matchete allegedly found with him in evidence was fatal to the case of armed robbery against him, the same reasoning applies to set aside his conviction for the lesser offence of receiving stolen property since the Prosecution also failed to tender in evidence the stolen phones allegedly found in his possession or bond signed by the Complainants to collect them.
The Respondent’s position is that his contention is misplaced because it is not the law that unless and until the said goods received are tendered in evidence, a trial Court cannot convict on the oral and incontrovertible evidence before it.
Looking at the facts of this case and the conclusion of the lower Court, which I set out earlier, I really believe that the key to resolving this issue lies in the lower Court’s reasoning that led to its conclusion. It reasoned as follows –
“The principal witness for the Prosecution is PW2 …. It can only be from his testimony that the Court may say, with sufficient degree of certainty … that the Defendant was one of those who participated in the alleged crime. … The other 3 witnesses, the Police Officers, can only serve to give credence to, and corroborate, whatever he may have said … However, it is clear that PW1 carried out no real investigation. Upon receiving the tip-off … that led to the arrest of the Defendant, and after PW2 had belatedly arrived at the station later that morning to lodge his complaint, the matter was immediately transferred from Gowon Estate to SARS …
As for PW3 and PW4, what their respective testimonies does is that it shores up the evidence of PW1 by showing that the Defendant was one of the three men suspected of having robbed the Nwachinemeres. All three police officers also confirmed PW2’s evidence that he and his wife’s telephones and other belongings were stolen, did their evidence then, point accusing fingers at the Defendant as one of the 3 robbers involved in the heinous crime … The evidence before me shows that it was no more than an hour or so after this armed robbery incident that the Defendant was arrested. The Police … have said that he was arrested with a machete (or cutlass) and the stolen telephone. … PW2 has given unchallenged evidence that it was the very phones that were stolen from him and his wife that the Police showed him to have been recovered by them. … And so, there is a strong, incontrovertible link between the person who was caught by the Police upon a separate tip-off, and the armed robbery incident… But the very pertinent issue arises as to whether this person that PW2 recognized and identified is the very same person before me that was charged with having committed the offences that are the subject matter of this case. …I have read over PW2’s evidence again and again, and I do not find that he ever said to the Court in a positive manner that it was this very Defendant … that was either the person he had identified at the station … or that he was one of the persons who he had had a good look at whilst robbing him and his wife on the day in question. All that he made clear to the Court was that at the station, he had identified the person shown to him in the cell.
He never, whilst testifying, made a categorical connection between that person shown to him … and the Defendant … Instead, what is very clear, what is certain beyond reasonable doubt, is that the stolen telephones were recovered from [him].
I am as sure as can be that [he] is somehow connected with the crime. Whether he was one of the 3 armed robbers or not, PW1’s evidence remained unshaken … that (he) was arrested by the Police at the point of sharing the loot, and more particularly, that he was caught in possession of the stolen telephones. Perhaps if the machete allegedly found with him had been adduced in evidence, perhaps then the presumption would have been so strong (notwithstanding PW2’s ambivalence) that it would have led to the practically irrefutable conclusion that he was indeed one of those three that had actually engaged in the armed robbery incident.
But as no such machete was produced before me, and as PW2 did not categorically link him to the man he identified at the police station, all that there is, is that he is (by reason of those telephones) somewhat connected to the armed robbery incident – even if he was not a direct participant in the said incident . There are two other factors, that point to some degree of culpability on his part. The first is the issue of time, and the second is his proximity to the scene of the crime. …It was within the space of an hour, give or take a few minutes, from the time of the incident that a suspect was arrested. PW2 had explained under cross-examination that he had been summoned to the police station even before he himself had gone there to lodge a report. He said the attack on him and his wife occurred between 5-30/5.45 and 6am. PW1 under cross-examination told the court that he and his fellow policemen arrived at the place where they had found the Defendant at about 7am. This was after the Police had received the tip-off which PW1 spoke about, of some unwholesome activity going on in that place in the neighbourhood … even if the evidence is rather cloudy as to whether or not he actually took part in the crime, the evidence remains very clear that he was caught red-handed with the stolen telephones within the locality. The evidential burden … shifted onto him to disprove this. His defence was that he was nowhere near the scene. However, and in evaluating the evidence before me, I find that this cannot be true. …I take judicial notice of the fact that all the places mentioned by the witness in this case … are within the same locality, popularly and loosely referred to as Alimosho.
I take judicial notice of the fact that the Gowon Estate police post serves that area.
…And so, if Policemen from Gowon Estate respond to a distress call or a tip-off and made on arrest, it must mean that the person arrested was found well within the vicinity of the events in issue in this case. …And so, just as PW7 answered under cross-examination, the Defendant, having been arrested within the territorial jurisdiction of the Gowon Estate Police Post, was therefore not far away from the scene of the crime. I have also taken note of the Defendant’s contradictory testimony when questioned on this defence of being far removed from the scene.
After telling us that he picked up a certain “Obanla” every morning to take him to work, and after saying he had been apprehended by a crowd of people outside Obanla’s house that morning, his cross-examination proceeded thus … But then, he also said that Obanla’s house was in front of Winner’s Church, and he answered further that Winners Church is not in the same place as Gowon Estate! And here he is again, confirming that Obanla’s house is in Gowon Estate! It appears to me that for a brief moment, the Defendant slipped and let his guard down. The truth, as a result, in turn slipped out … this being that he was indeed apprehended within the environs of Gowon Estate! At any rate, his attempt to distance himself from the scene of the crime is not at all persuasive as the places he mentioned … all lie within the same locality and all fall within the area of jurisdiction of the Police at Gowon Estate. And so, as he could not run away from this truth, his evidence became self-contradictory. There is also the fact that Obanla, who was a crucial witness for the Defence, was never called upon by them to testify for that case.
I imagine then, relying on the provisions of S.167(d) of the Evidence Act of 2011 that if called his evidence would have been unfavourable to the defence. Again, the Defendant’s demeanour in the box when faced with a barrage of questions under cross-examination did not portray him as a witness of truth…”
The raison d’etre for the lower court’s decision is quite explicit. As it turns out, I came across an interesting case that I think will shed light on the direction to take with this appeal or act as a backlight to view it properly; given that our legal system attaches great value on deciding cases according to consistent principled rules so that similar facts will yield similar and predictable outcomes, and observance of precedent is the mechanism by which that goal is attained- See Wikipedia.org. In that case, Eze V. The State (1985) 3 NWLR (pt.13) 429 SC, the Appellant was convicted of Armed Robbery by the High Court of Imo State.
The facts are that PW1 was riding his motorcycle around 5am in the morning, when he saw 2 men besides a motorcycle. Thinking that they were in trouble, he rode close to them, however, he was ordered to stop and put up his hands.
The Appellant pointed a gun at him, and PW1 dropped his motorcycle and ran.
The Appellant fired at him but missed. When PW1 looked back, he saw that the 2 men had taken his motorcycle and their own and disappeared. In the evening of that same day, PW1’s son saw somebody riding his father’s motorcycle, and traced it to a beer parlour. He told his father and they reported to the Police.
The Policemen followed them to the Beer parlour where PW5, the son of PW1, identified his father’s motorcycle to the officers and immediately he did that, two men got up from their seats. One escaped but the Appellant was arrested, and was taken to the Police Station with the motorcycle. They searched him and found an ignition key tucked away in his breast pocket. In his Statement to the Police, which was tendered in evidence, he stated that he did not know how the ignition key of the Suzuki motorcycle managed to enter his pocket.
But he testified in Court and denied knowing anything about the ignition key, although he admitted making the statement to the Police. PW1 testified that he was one of the men that robbed him of his motorcycle at gun point that day.
The trial Judge convicted and sentenced the Appellant for Armed Robbery.
This Court dismissed his appeal. A further appeal to the Supreme Court was also dismissed. The Supreme Court per Oputa, JSC, elucidated as follows-
“The Court usually relies on circumstantial evidence where there is no direct evidence linking the person accused with the crime which he stands charged. But here there was the direct oral evidence of 1st P.W. … that “Accused then pointed a gun at me … and fired his gun behind me”. In other words, there was direct oral evidence of the Appellant’s participation in the robbery. … In addition to direct oral testimony, the Court can also rely on presumptions. One such presumption which will adequately fit in with the facts with the facts of this case is the presumption:
“That a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession.”
This is the statutory provision of Section 148(a) of the Evidence Law … applicable in Imo State. The above Section 148(a) of the Evidence Law is thus the Nigerian equivalent of the English doctrine of recent possession (of Stolen Goods). For this doctrine to operate there ought to be evidence:-
1. That the Accused was found in possession of some goods.
2. That those goods were recently stolen.
3. That the Appellant failed to account for his possession.
…The presumption of Recent Possession” as contained in Section 148(a) of the Evidence Act is not a presumption of law but a presumption of fact. If it was a presumption of law (praesumption is juris et de jure) it will be an absolute inference established by law therefore irrefutable. But being a presumption of fact, it is inconclusive and rebuttable. In fact the marginal heading of Section 148 of Evidence Law clearly states – “the Court may presume the existence of certain facts.” The presumption that an Appellant found in recent possession of stolen property is either thief or the receiver with guilty knowledge is merely an inference, which the court of trial is at liberty to draw, (not must draw) from the facts and surrounding circumstances of each particular case. In any given case, the court may think that the totality of the evidence and the surrounding circumstances do not support the inference that the person accused was the thief or receiver with guilty knowledge. In such a case, Section 148(a) of Evidence Law and the presumption therein contained fail. Section 148(d) above clearly meant this when it made the presumption subject to “unless he can account for his possession.” Where the person accused successfully accounts for his possession, he may be found “not guilty.” But to be able to account for “his possession” the fact of such possession will first of all be unequivocally admitted.
In the case on appeal, the issues agitated in the only ground argued will boil down to:-
1. Was anything found in the possession of the Appellant linking him with the robbery complained of?
2. Was the Appellant’s possession recent?
3. Did the Appellant give any explanation or did he account for his possession?
4. Were the trial Court, and the Court of Appeal, on the totality of the evidence and all the surrounding circumstances, justified in finding the Appellant guilty of Armed Robbery?
I will now consider the issues raised above one by one. … There was evidence that the ignition key found on the Appellant was the ignition key of the motor-cycle of (1st P.W.) Livinus Eke which was involved in the robbery of the same day 14/7/81.
The Appellant’s possession of the ignition key was therefore recent. What was the explanation of the Appellant? On the very same day, … when the matter was still fresh in his mind, the Appellant made a statement to the Ariaria Police, which was tendered as Ex. C. There, he said,” I did not know how the ignition key of the Suzuki manage and enter my pocket…” The Appellant did not deny, or, more accurately, could not possibly deny possession of the ignition key of the Suzuki motor-cycle of 1st P.W. found on him (in his breast pocket). Two questions now arise, namely:-
(a) Is the possession of the ignition key of the Suzuki motor-cycle of 1st P.W, the possession of the stolen motor cycle?
(b) What conclusion, what inference, can any fair-minded jury draw from the Appellant’s unexplained possession at 7p.m. of 14/7/81 of an ignition key of a motor-cycle snatched away from the owner during a robbery which occurred “after 5 a.m. of the same 14/7/81.”?
In answer to the first question, learned counsel for the Appellant argued … that what was stolen in the robbery was a Suzuki motor-cycle and not the ignition key of a Suzuki motor-cycle. He concluded that “possession of Ex. E, i.e. the ignition key, was not conclusive.” The above argument portrays a radical misconception of the theory of possession in our jurisprudence. Lord Fitzgerald in Lord Advocate v. Young (1887) 12 App. Cas. p. 556 was quick to point out that “by possession is meant possession of that character of which the thing is capable”. … Possession implies not only physical power or custody over the res but also (and even more importantly) the power to exclude others. How can the latter power be exercised over a motor vehicle (be it a car or motor-cycle) more than by the possession of the ignition key. … In the surrounding circumstances of this case, the possession of the ignition key of the motor cycle is the said motor cycle. … The trial court and the court below were therefore both right in drawing the inference they drew that the Appellant’s unexplained possession of the ignition key to the Suzuki motor-cycle of Livinus Eke which was snatched away from him in the morning of 14/7/81 was proof of his possession of the said motor cycle. Now to the second question- What presumption, what conclusion will the court rightly make or arrive at in this case? The presumption which S.148(a) of Evidence Law allows is that, depending on the peculiar circumstances of the case, the Appellant in unexplained possession of a recently stolen motor cycle is either the thief or the receiver with guilty knowledge. …
The Appellant’s case is not that he received or bought the motor cycle in good faith and that he did not and could not from the surrounding circumstances have known that it was stolen. That was not his case. So the question of a receiver with guilty knowledge is here a non – issue. It is only where the Appellant’s case is that he is an innocent receiver that guilty knowledge or otherwise becomes an issue – Isaac Schama and Jacob Abramovitch (1914) 1 Cr. App. R.45 refers. In the case of James Loughlin (1951) 35 Cr. App. R. 69 where it was proved that premises had been broken into and property stolen therefrom and that very soon after the breaking, the prisoner had been found in possession of that property, it was held that it was open to the jury to find the prisoner guilty of breaking and entering and the jury should be so directed…”.
In this case, we can break down the lower Court’s decision into the following –
– The Prosecution failed to prove the offences of conspiracy to commit armed robbery and armed robbery beyond reasonable doubt since PW2, the only eye witness to the crime, never said to the court in a positive manner that the Appellant he was looking at in the dock was either the person he identified at the Police Station that morning of 16/9/2009 or was one of the men that robbed he and his wife on the day in question.
– The decision would have, been different if the machete allegedly found with the Appellant had been adduced in evidence “then the presumption would have been so strong (notwithstanding PW2’s ambivalence) that it would have led to the practically irrefutable conclusion that he was one of the 3 men that had actually engaged in the armed robbery incident”.
– However, as no such machete was produced before it, and “as PW2 did not categorically link him to the man he identified at the Police Station, all that there is, is that he is somewhat connected to the armed robbery incident – even if he was not a direct participant in the said incident”.
“Even if the evidence is rather cloudy as to whether or not he actually took part in the crime, the evidence remains very clear that he was caught red-handed with the stolen telephones within the locality”.
The Appellant failed to discharge the evidential burden that shifted onto him to disprove this fact because contrary to his defence that he was nowhere near the scene where a suspect was arrested by the Police, who were acting on a tip-off, “he was arrested within the territorial jurisdiction of the Gowon Estate Police Post and was, therefore, not far away from the scene of the crime”, and he gave contradictory testimony “when questioned on his defence of being far removed from the scene”.
“Obanla”, who was a crucial witness for the Defence, was never called, and by Section 167(d) of the Evidence Act, it is presumed that if called, “his evidence would have been unfavourable to the defence case”.
The Appellant’s demeanor did not portray him as a truthful witness-
“There were instances when he would pause for a few seconds before responding as if looking to “contrast” a convenient response that would not give the game away. There were signs of discomfort at some questions. There were times that he would mutter to himself as if not bold enough to answer the probing questions properly. I became convinced that he was, in truth, quite, quite economical with the truth”.
– The Appellant is “guilty of the lesser offence of receiving stolen property, contrary to the provision of S.427 of the Criminal Code Law of 2003 (the law then in force), as the evidence to this effect stands incontrovertible. He is, therefore, convicted of the latter offence”.
I have gone through the Grounds of Appeal against the lower Court’s decision, and naturally, the Appellant has no grouse with his acquittal for the charge of conspiracy to commit armed robbery and armed robbery alleged against him.
The Respondent did not appeal against the decision to acquit the Appellant for the offences as charged, and that aspect is, therefore, not an issue before us.
There is also no issue or grouse regarding the substitution for a lesser offence, which the lower Court is allowed to do anyway – See Nwachukwu V. The State (1986) 2 NWLR (Pt.25) 765, where the Supreme Court held that a conviction can lie in respect of a lesser offence either on a trial of the offence charged or by an accused pleading guilty to such lesser offence. So, a Court has power to convict for a lesser offence, although not charged, if it is of the view that facts proved by the Prosecution do not establish the offence charged but constitute the lesser and related offence – Ndukwu V. The State (1999) LPELR-CA/PH/96.
In this case, the Appellant’s main grouse is that the lower Court erred in convicting him for the said lesser offence of receiving stolen property when the phones allegedly stolen and received by him were not tendered in evidence, nor were they proved to be in his possession. In his words on p. 8 of his brief –
“If it has not been proven that the person shown to the PW2 is the same person as the Appellant, the Appellant submits that there is no evidence to prove beyond reasonable doubt that the stolen telephones were recovered from the Appellant to ground the conviction for the offence of receiving stolen property”.
As I said earlier, the answer to the riddle is in the reasoning of the lower Court.
It acquitted the Appellant of the offence of armed robbery because, as it put it-
“PW2, whilst testifying before the Court, never positively identified the Defendant, and never confirmed to the Court that he was the very same person that he had recognized and identified at the police station”.
Then in the very next sentence to the above assertion, it concluded as follows-
“The Defendant, however, was arrested a short time after the robbery incident, and within the same locality, with some of the stolen properties of the Nwachinemeres – all their mobile telephones. At best, the Defendant is guilty of receiving those stolen goods”.
What do we find? The lower Court expressed reservations about the Appellant being the person that PW2 had identified and recognized at the Police Station, and acquired him of the offence of armed robbery. But with the next breath, it convicted him of receiving stolen property – the phones allegedly stolen from PW2 and his wife on the day in question. PW1 said they got information that armed robbers were sharing their loot and after they arrested him, “the cutlass they used to commit the crime was also recovered with some of the phones”.
His DPO asked them to transfer the matter to the Special Anti-Robbery Squad, and they “transferred a cutlass and 3 mobile phones to the SARS”. PW2 said-
“My brother-in-law called my son to say that I should go to Gowon Estate that someone called to say they had recovered our phones. I drove there with a friend of mine, who is a mobile police officer … They said I could not take them away.
They caught one of the armed robbers with the influence of my friend, we asked to see him. We went to the cell and saw the person. That was the one whose face I saw – the one with the long knife. He had raised it on us. We went back to the counter and I asked when I should come back since the IPO or DPO was not around. They said I should come back at 10.50am. … At about 11am when [his wife] came back home, we went to the Police Station. When we got there, we met the DCO, who told us that the case had been transferred to the State Headquarters… We drove there and met the officer in charge. There they brought out the phones, the culprit and the knife that he had raised on us. I identified my phone a Samsung KJ 700. My wife identified the 2 of hers, where were Nokia. I cannot remember the particular type. We made out statements and left. They released the phones to us, and we signed for them”.
PW3 said – “the IPO; who is on course, will be in a better position to intimate this Court about the facts”. Under cross-examination, he answered thus – “he was transferred alongside the cutlass and GSM phone recovered from him”.
When the said IPO testified as PW4. he was asked by the Prosecutor –
“what happened to the handsets stolen by the Defendant? And he answered –
“it was released to the Complainant on bond”. The cutlass and mobile phones were said to have been recovered together and transferred together to SARS.
They were not tendered in evidence, and the question is – was the lower Court right to use non-production of the cutlass to support acquittal for one offence, and convict for another although the phones were also not produced in Court?
The issue here is not whether the said cutlass and mobile phones had to be tendered in evidence before the lower Court could convict for the offences.
I must add that the Respondent may not have appealed against the decision, but it cited Alor V. State (supra), where Tobi, JCA (as he then was) aptly held –
“Learned counsel – made so much whether on (a) the issue of the identity of the gun and (b) the failure of the Prosecution to call one Yahaya Mohammed, who was found selling some of the goods stolen by the Appellant. It is not a desideratum for the Prosecution to tender the gun or weapon used in the commission of an offence before an accused could be convicted. A court of law can convict an Accused for on offence if there is eye witness evidence or in the absence of eye witness, there is enough unequivocal circumstantial guilt of the Accused”.
In this case, there was an eyewitness – PW2, however, the lower Court was not satisfied with his testimony because he did not positively identify the Appellant in the Court as the person arrested by the Police and shown to him in the cell.
His “ambivalence”, as the lower Court put it, created some doubt in its mind, and it acquitted the Appellant for armed robbery, but not without adding that-
“Perhaps if the machete allegedly found with him had been adduced in evidence, perhaps then the presumption would have been so strong (notwithstanding PW2’s ambivalence) that it would have led to the practically irrefutable conclusion that he was indeed one of those three that had actually engaged in the armed robbery incident”.
It is trite that where an alleged crime has not been proved beyond reasonable doubt, any lingering doubts must be resolved in favour of the accused person –
See Kalu V. The State (1988) 4 NWLR (Pt.90) 503 SC, and Okonji V. The State (1988) 1 NWLR (Pt.52) 659 SC. Any doubts in the mind of the Court should always be resolved in favour of the Accused, and I will add – across the board.
Any doubts as to whether the Appellant was actually one of the three men that robbed PW2 and his wife on the day in question, which resulted in his being acquitted by the lower Court of offences charged – armed robbery included, should have been the end of the matter. To proceed with the doubts in place, and convict for a lesser offence not charged, in the same Judgment, is out of it.
The bottom line is that the lower Court relied on different standards to acquit for the offences charged on one hand, and convict for the lesser offence not charged on the other hand. It used the non-production of the “machete” in evidence to justify its resolve to acquit the Appellant of armed robbery, and failed to address its mind to the fact that the phones were also not produced.
It also said that the Appellant was caught red-handed with the stolen phones, but there is no clear-cut evidence to that effect. PW1 testified as follows –
“When the armed robbers were sharing the loot, the information got to the Police Station. We then rounded them up. We arrested one, and the others ran away. The one we arrested is here. We obtained the Defendant’s Statement. He made a confessional statement to the Police that they have been robbing innocent citizens for many years. He mentioned the name of the 2 others at large, but he refused to disclose their houses to the Police. The cutlass they used to commit the crime was also recovered with some of the phones. My DPO said we should transfer the case to the SARS. We transferred the case to the SARS. We transferred a cutlass, 3 mobile phones to the SARS. We transferred both the original case file and the suspect”.
The lower Court found and expressly stated so in its Judgment that-“it is clear that PW1 carried out no real investigation”. In Eze’s case (supra), the Appellant was caught with the ignition key tucked away in his breast pocket. In this case, PW1 never said that the phones were- recovered from the Appellant directly, and PW2 never identified him as the one, who stole their phones, from them.
The Respondent submitted that the trial Court is the master of facts, and this Court should not ordinarily upturn its decision except where it is perverse, but it cited Akinbisade V. State (supra), where Kalgo, JSC, very aptly observed-
“While I agree with the Court of Appeal that a trial Court Judge is the master of the facts of evidence given before him, and his inference, evaluation or assessment of evidence should not ordinarily be faulted by an appeal Court, such inference, assessment or evaluation of the evidence must be properly based on the available evidence given before him and not outside it … It is also necessary to ensure that there are no co-existing circumstances which would weaken or destroy the inference, evaluation or assessment…”.
The Appellant latched onto that last sentence and countered in his Reply brief that there were indeed co-existing circumstances that weaken and destroy the inference that he is the receiver of any stolen telephone or any property at all.
In the circumstances of this case, I have to agree with the Appellant that this is one of those cases, where this Court has to intervene, and set aside the conviction of the Appellant for the lesser offence of receiving stolen property.
The doubts expressed by the lower Court that resulted in his acquittal for the offences charged, has to be resolved in his favour for the said lesser offence.
The Appellant also challenged the sentence of 14 years imprisonment imposed on him by the lower Court. This is more or less an academic exercise, in view of what I have said earlier, however, it is weighty, and I will address it.
The Appellant submitted that it is trite that where sentence prescribed upon conviction is a term of imprisonment, the trial court has discretion to employ extenuating factors, such as whether the convict is a first offender and the age of the convict, to reduce the years of sentence, and he referred us to – Aminu Tanko v. The State (2009) 4 NWLR (Pt.430) 26 S.C, Adejobi V. State (2007) VOL 22 WRN 1, Anastatius Uwakwe V. The State (1974) 9 SC 5. He contends that –
“Whilst the trial Judge is not bound to give reasons for the term of years of imprisonment imposed, [his] sentence to a maximum term of 14 years by the trial Court was too severe, strict and excessive for a first offender of the Appellant’s age, which could be given another opportunity to live a productive and useful life again”.
The Respondent conceded that the lower court in sentencing has discretion to employ extenuating factors so as to determine the appropriate term where it is not specific that the Appellant be sentenced to a particular number of years, taking into consideration his age, his previous record, and host of other factors, but argued that we should not interfere with its discretion, citing Omopupa v. State (supra) and Mobil Oil V. Nabsons Ltd. (1995) 7 NWLR (Pt.407) 254 SC.
The Appellant countered that the exercise of discretion in sentencing him to 14 years imprisonment cannot be regarded as judicially and judiciously exercised, where the lower Court failed to consider the fact that he is a first time offender, and without any prior criminal record, so it can be set aside, citing UBN Plc. v. Astra Builders (W.A.) Ltd (2010) 5 NWLR (Pt.1186) 1 SC.
Yes, the sentencing power of a Judge is predicated on his discretionary powers, which must be seen to have been exercised judicially and judiciously –
see Isang V. The State (1996) 9 NWLR (Pt.473) 458, Igboanugo V. The State (1992) 3 NWLR (Pt. 228) 176. In most cases, the law fixes an upper limit and leaves a Judge the power to fix the sentence appropriate within the limit, which may vary from a caution and discharge, a binding over order, a fine or imprisonment depending on a Judge’s view of the circumstances of the case.
However, the Judge is bound to consider factors, such as the seriousness or otherwise of the offence, the prevalence of the offence, whether the convict is a first offender, and prevailing attitude of the populace to the offence – see Onyilokwu V. C. O. P. (1981) (2) NLR 49. In this case, the lower Court failed to take into consideration the fact that the Appellant is a first offender, which is one of the major considerations in passing sentence – see Apamadiri V. State (1997) 3 NWLR (Pt. 493) 289 and Alake V. State (1991) 7 NWLR (Pt. 205) 567.
Even if he is guilty of the offence, 14 years imprisonment for that is excessive.
However, the Prosecution failed to prove its case against the Appellant beyond reasonable doubt. He had no reason to explain anything to the Court, and the lower Court surely had no reason to pass any kind of sentence on him.
The end result is that the appeal succeeds and is allowed. The decision of the lower Court, including his conviction and sentence, is hereby set aside, and in its place, I do hereby enter a discharge and acquittal for the Appellant.
TIJJANI ABUBAKAR, J.C.A.: There is certainly no doubt that it remains within the exclusive judicial role of a trial judge to hear and evaluate evidence with a view to either believing or disbelieving witnesses at the trial; and then make findings based strictly on the credibility and quality of evidence led at the trial. In other words a trial court must base its inferences, evaluation and findings on available evidence adduced before it.
The learned trial judge in this appeal apparently set two different and conflicting standards in one trial. The learned trial judge said the charge of conspiracy to commit armed Robbery and armed Robbery could not be sustained against the Appellant because the instrument of violence allegedly used was not tendered in evidence at the trial, but in a sharp twist the learned trial Judge found the Appellant guilty of receiving stolen property, when phones of the victims of the alleged offence, were not tendered and admitted in evidence as exhibits in the same trial.
A trial judge must not in the discharge of his judicial duties engage in the act of setting conflicting standards, his findings and conclusions must not be premised on extraneous considerations, or project glaring misapprehension capable of rendering the conclusion reached by the court doubtful. See: ABEKE VS. STATE (2007) 2 NCC (P. 451), AKINBISADE VS. STATE (2007) 2 NCC (P.76).
Again, in a charge of receiving stolen property, the identity of the item stolen must not be left to speculation or logical deduction as the essential ingredients of the offence require that prosecution proves that, the property in question is stolen, that the accused person received or retained such property, that he did so dishonestly, and he knew or had reasons to believe that the property was infact stolen, SEE: SEBASTIAN S. YONGO & ANOR. VS. C.O.P. (1992) NWLR (PT 257) 36.
For the above reason and the more elaborate reasons given in the lucid judgment of my learned brother AUGIE JCA, I completely agree with the reasoning and conclusion, and join my brother in holding that Appellants appeal is meritorious and succeeds, I also join in setting aside the judgment of the lower court, adopting the order of discharge and acquittal of the Appellant as mine.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have read in draft the lead judgment of my learned brother Hon. Justice Aminu Adamu Augie JCA and I fully agree with the lucid reasoning and conclusions reached therein except to add a few words of mine.
The law is settled that before an accused is convicted for a lesser offence, certain conditions must be fulfilled. Failure to fulfill these conditions will render such conviction a nullity. These conditions have been stated by the Supreme Court, PER DANIEL-KALIO JSC in ADEYEMI v STATE [1991] 6 NWLR (PT 195) 1 at 19 – 20, Paras F-B thus:
First, the elements in the offence charged and those in the lesser offence for which the accused is convicted must be the same. Secondly, the evidence adduced and the facts found must be insufficient for convicting the offence charged, but at the same time support the lesser offence in respect of which the accused was convicted.
See also MUFUTAU OWOLABI v THE STATE [2014] LPELR-24039 (CA).
In the instant case, the trial court found that the offence of armed robbery upon which the Appellant was charged was not established beyond reasonable doubt. However found and convicted the Appellant on the lesser offence of receiving stolen property. Having regards to the circumstance and the peculiar facts of this case, the question is whether the trial court rightly convicted the Appellant for the lesser offence?
In YONGO v C.O.P [1992] LPELR – 3528 (SC), the Supreme Court, PER KARIBI-WHYTE JSC stated the essential ingredients of the offence of receiving stolen property thus:
The essential ingredients of the offence which the prosecution is required to prove in order to secure a conviction under this section are:
1. That the property in question is stolen property;
2. That the accused received or retained such property;
3. That he did so dishonestly;
4. That he knew or had reason to believe that the property was stolen.
See also STATE v NNOLIM [1994] 5 NWLR (Pt.345) 394; AIYEOLA v. THE STATE (1969) 1 ALL NLR 309.
In the instant case, the evidence adduced and the facts found are apparently insufficient for convicting the offence of armed robbery, hence the conviction of the Appellant the offence of receiving stolen property. However, neither the alleged stolen phones nor the bond for their release was shown; no evidence to show that it was the Appellant that was in possession of the alleged stolen item. Having not proved all these, the lower court cannot therefore rightly convict the Appellant for the lesser offence.
For the above reasoning and the fuller ones in the lead judgment of my learned brother, AMINU ADAMU AUGIE JCA, this appeal succeeds. The decision of the lower court is set aside and in its place, I hereby enter a discharge and acquittal for the Appellant.
Appearances
E. A. Oyebanji, Esq., with M. A. Olarewaju, Esq. For Appellant
AND
Obafemi Adamson, Esq., with Hafeez F. Owokoniran, Esq. For Respondent
