SUNDAY OKOYE v. FEDERAL REPUBLIC OF NIGERIA
(2018) LPELR-46843(CA)
In The Court of Appeal of Nigeria
On Thursday, the 20th day of December, 2018
CA/A/730C/2017
RATIO
CRIMINAL LAW: OFFENCE OF RECEIVING STOLEN PROPERTY
“The essential ingredients of the offence of receiving stolen property are: [a] that the property in question is stolen property; [b] that the accused received or retained such property; and [c] that he knew or had reason to believe that the property was stolen property. See SEBASTIAN S. YONGO & ANOR VS COMMISSIONER OF POLICE 4 SCNJ 113 and BLESSING VS FRN [2015] 113 NWLR [PT. 147511.” PER MOHAMMED BABA IDRIS, J.C.A.
EVIDENCE: WAYS TO PROVE A CRIME IN COURT
“There are three (3) ways of proving a crime in Court. These are by (i) Direct evidence; (ii) Confessional statement/statements made by the defendant; and (iii) Circumstantial evidence. See BILLE VS. THE STATE (2016) LPELR-40832(SC); ADEYEMO VS. STATE (2015) 4 SC (PT.11) 112; OGEDENGBE VS. STATE (2014) ALL FWLR (PT. 752) 1725; IGABELE VS. STATE (2006) ALL FWLR (PT. 311) 1797, (2006) 2 SC (PT.11) 616; EMEKA VS. STATE (2001) 14 NWLR (PT. 734) 666.” PER MOHAMMED BABA IDRIS, J.C.A.
EVIDENCE: CONFESSIONAL STATEMENT
“A confession is an admission made at any time by a person charged with a criminal offence, stating or suggesting the inference that he committed the crime. See Section 28 Evidence Act; UBIERHO VS. STATE (2003) ALL FWLR (PT. 254) 804. A free and voluntarily confession of guilt if direct and duly made and satisfactorily proved, is sufficient to warrant conviction even without collaborative evidence so long as the Court is satisfied of the truth of the confession. See JIMOH YUSUF VS. STATE (1976) 9 SC 167; EDET OBASI VS. STATE (1965) NWLR 119; JAMES CHIOKWE VS. STATE(2012) LPELR -19716 (SC). A confessional statement is the best evidence in our criminal procedure. It is a statement of admission of guilt by a defendant and the Court must admit it in evidence unless it is contested at the trial. Once a confessional statement is admitted, the prosecution need not prove the case against the defendant beyond reasonable doubt as the confessional statement ends the need to prove the guilt of the defendant. See SOLOLA VS. STATE (2005) ALL FWLR (PT 269) 1751. However the confessional statement must be unequivocal in the sense that it leads to the guilt of the maker. See AWOSIKA VS. STATE (2009) 4 NCC 348.” PER MOHAMMED BABA IDRIS, J.C.A.
JUSTICES
ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
MOHAMMED BABA IDRIS Justice of The Court of Appeal of Nigeria
Between
SUNDAY OKOYE Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA Respondent(s)
MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment):
This appeal is sequel to the Judgment of the High Court of Justice of the Federal Capital Territory (FCT) in Charge No.CR/41/2013 presided over by the Honourable Justice Sylvanus Chinedu Orji delivered on the 3rd day of July, 2017 by which the Honourable trial Judge found the appellant guilty of the offence dishonestly receiving stolen property contrary to Section 5 of the Robbery and Firearms [Special Provisions] Act and Sentenced him to imprisonment for life. The Appellant was dissatisfied with the Judgment and decided to challenge same by way of filing of an appeal.
In challenging the Judgment, the Appellant filed two Notices and Grounds of Appeal, one dated 11th July, 2017 and filed on the same date and another one dated and filed on the 8th September 2017. The first Notice and Grounds of Appeal can be located at pages 264 – 271 of the printed record of appeal while the second Notice and Grounds of Appeal can be seen from pages 273 – 285 also of the printed record of appeal.
For the purpose of arguing this appeal, the parties relied on and used the Notice and Grounds of Appeal dated and filed on the 8th day of September, 2017 and abandoned the earlier one dated and filed on the 11th July, 2017.
The brief facts of the case are as follows:-
a) By an application for leave to prefer a Criminal Charge in the High Court of the Federal Capital Territory, the Complainant, then Commissioner of Police applied for leave to arraign four persons, namely: the Appellant (SUNDAY EZE OKOYE), OBIAJULU OGBONNA, YUSUF MOHAMMED and EMEKA UMAR) for the alleged offences of Criminal Conspiracy and Armed Robbery punishable under Sections 97 and 298 of the Penal Code.
b) The two count charge alleged that the four persons while armed with guns conspired among themselves and robbed one Erinomo Temitope of his Toyota Corolla with Registration No. ABJ 542 AA. The Appellant was allegedly found in possession of the vehicle during a check point mounted by men of the Special Anti-Robbery Squad (SARS) of the Nigeria Police Force, Abuja along Airport Road at Lugbe, Abuja and was arrested. The original charge sheet can be found from pages 1 to 34 of the printed record of appeal.
c) The Appellant allegedly named the three (3) other persons leading to their arrest and arraignment along with him (Appellant). Upon their arraignment, all four Defendants pleaded not guilty to the two (2) count charge and hence put themselves to their trial.
d) The Honourable Attorney General of the Federation took over the prosecution of this case and its name was changed from COMMISSIONER OF POLICE VS SUNDAY EZE OKOYE & 3 ORS to FEDERAL REPUBLIC OF NIGERIA VS SUNDAY EZE OKOYE & ORS. The charge was amended from two counts to three counts. The amended charge sheet can be located at pages 85 and 86 of the printed record of appeal
e) To prove the case against the four Defendants, the Prosecution called three (3) persons to testify for it and tendered documents in evidence. Thereafter, the Prosecution closed his case and the Defendants including the Appellant addressed the Court below in a no case submission.
f) In a considered ruling delivered on the 7th day of October, 2016, the trial Court upheld the no case submission made by the (1st, 2nd 3rd and 4th) Defendants on counts 1 and 2 but overruled the no case submission made by the
Appellant in respect of the 3rd count. The ruling of the Court below can be found from pages 158 to 170 of the printed record. The Court below called upon the Appellant to enter his defence in respect of Count 3 and he (Appellant) did testify in his defence as DW1. The evidence of the DW1 can be found from pages 238 to 244. He was thoroughly cross examined by the Prosecution Counsel. Thereafter the Defendant too closed his case and the Counsel on both sides addressed the Court.
At the hearing of the appeal, learned Counsel for the Parties adopted their respective briefs. In the brief filed by the Appellant, the following issues were formulated for the determination of the Court:-
1. Whether from the contents of EXH. J1 and EXH. J2 [the Appellant?s extra judicial statement to the police] it can be said that the Appellant confessed to committing the alleged offence? [Argues Grounds 1,2,3 and 9 of the Notice of Appeal]
2. Whether the alleged confessional statement embodied in EXH. 11and EXH. J2 does not contain material contradictions to cast doubt in the mind of a reasonable Judge? [Argues Grounds 4 and 6 of the Notice of Appeal]
3. Whether the trial Court was not in grave error when it placed the burden on the Appellant to prove his innocence beyond reasonable doubt instead of putting on the legal binoculars to see that the pieces of evidence adduced by the Prosecution did not meet the requirement of the law in Section 135 (1) of the Evidence Act 2011 of proof beyond reasonable doubt. [Argues Grounds 5 and 7 of the Notice of Appeal]
The Appellant argued the three (3) issues together and submitted that the extra judicial statement of the Appellant in Exhibit 31 and Exhibit J2 in relation to how he got to be in possession of the alleged stolen car did not show any kind of confession to the charge for the following reasons:-
I. He was introduced to Alhaji Sani by one Mr. Benjamin, two weeks before the date the exhibits were made on the 11/7/2013.
II. Alhaji Sani was introduced as a businessman and not as a criminal. He was said to be a dealer in motor.
III. Alhaji Sani called him on phone to meet him at Jabi Abuja and he went and met him. Alhaji Sani received a phone call and after that, he asked the Appellant to enter his (Alhaji Sani’s) Mercedes Benz 190 without telling him where they were going.
IV. The duo of the appellant and Alhaji Sani drove in the Mercedes Benz 190 to Abuja City Gate where Alhaji Sani park the car, left him and went to the other side of the road to meet two young men and came back with the keys to the vehicle that he was found possession of.
V. The Appellant took the vehicle, drove it along airport road and even when he saw vehicles being stopped ahead of him as a result of police check point, he did not come out of the vehicle and run if he had known or had reason that the vehicle was a stolen vehicle.
VI. The PW3 conceded under cross examination that even when they stopped and searched some vehicle in front of the Appellant, he did not come out and run.
VII. The Appellant himself testified as DW1 that if he had known that the vehicle was stolen one, he would have abandoned it and run into the bush.
VIII. The Appellant testified that he had known Alhaji Sani in Kaduna as a businessman who deals in motors and that he had worked for him in Kaduna so he believed that the vehicle was legitimately his own.
IX. The Police did an inept investigative activity in respect of the case otherwise the would have held the Appellant to one clear, positive, direct and unequivocal confession of dishonesty receiving the said vehicle.
X. The trial Judge did not give consideration at all to the defence of the Appellant as he made no remark or comment on its credibility or otherwise.
XI. The alleged confession of the Appellant to be involved in robbery and snatching of vehicles; of receiving other vehicles, such as baby boy, Peugeot 406, Mitress 2000, smoking of Indian hemp, etc. cannot be reckoned with because there is no charge or count of the charge relating them.
In conclusion, the Court was urged to on the strength of the foregoing, find and hold that the judgment of the trial High Court is perverse and allow the appeal, set the said judgment aside and in its place, discharge and acquit the Appellant as there is no evidence linking him to the commission of the alleged offence.These authorities were relied on:-
LIST OF AUTHORITIES RELIED UPON
1. PDP VS. INEC (2014) 17 NWLR (PART 1437) 525 to 561 PARA F
2. EDOHO VS. THE STATE (2004) 5 NWLR (part 865)
3. BLESSING VS. FRN (2015) 13 NWLR (PART 1475) at 33 PARAS D – F
4. AFOLAHAN VS. STATE (2012) 13 NWLR (PART 1316) 185 at 198 PARA F
5. NAVY VS. LAMBERT (2007) 11 M]SC 1 at 8 PARAS C – E
6. ILIYASU VS. STATE (2015) 11 NWLR (PART 1469) 26 at 80 PARAS F – H
7. OKANLAWON VS. STATE (2015) 17 NWLR (PART 1489) 445 at 480 PARAS A – D
8. UDOSEN VS. THE STATE (2007) 1 SCNJ 482 at 493
9. NWACHUKWU VS. STATE (2004) 17 NWLR (PART 902) 262 at 276 PARAS F G
10. STATE VS DANJUMA (1997) 5 NWLR (PART 506) 512
11. KADA VS THE STATE (1991) 8 NWLR (PART 208) 134 at 163 PARAS F G
In the brief filed by the Respondent, these issues were formulated for the determination of the Court:-
1. Whether the trial Court was right in convicting the Appellant based on Exhibits J1, J2 and other relevant evidence before the Court?
2. Whether a slip in the evidence of the prosecution witness (if any) can vitiate the trial Court’s judgment on appeal?
The Court was urged to dismiss the appeal in its entirety. The crux of the respondent’s argument under issue one in the respondent’s brief of argument is that the trial Court was right in convicting the Appellant by relying on the confessional statements of the appellant (Exhibits 31 and J2) and the evidence of the PW1, PW2 and PW3.
The crux of the respondent’s argument under issue two of the respondent’s brief of argument is that, it is not every slip in the evidence of a witness that will lead to the acquittal of the Appellant. That in considering the extent of the inconsistency, the Court is required to look at the totality of the evidence of witness, and that taking a critical look at the totality of the evidence of the PW2 and PW3, it cannot be said that there were contradictions in his evidence such that will vitiate the judgment of the trial Court.
The Court was urged to affirm the judgment of the trial Court.These authorities were relied on by the Respondent:-
LIST OF AUTHORITIES RELIED UPON
1. JAMES CHIOKWE VS. STATE (2012) LPELR 19716 (SC)
2. JIMOH YUSUF VS. THE STATE (1976) 9 SC 167 at 173;
3. EDET OBASI VS. THE STATE (1965) NMLR 119
4. MUSA SADAK & ANOR VS. THE STATE (1998) NMLR 208 PP 26-27, PARAS. D-A
5. AMOSHIMA VS. STATE (2009) 4 NCC
6. JOSEPH UBI IGIRI VS. THE STATE (2012) 16 NWLR (PART 1327) 522 at 545 E
7. F.R.N VS. FAITH IWEKA (2011) 12 (PART 2) SCM 213at 220 G-I
8. IKEMSON VS. STATE (1989) 3 NWLR (PART 110) PAGE 530
9. SALAMI VS. STATE (1071) 1 NWLR 249
10. EDAMINE VS. STATE 1996 3 NWLR (PART 438) PAGE 530
11. UBIERHO VS. STATE (2005) 5 NWLR (PART 919) PAGE 644; (2005) 2 SCM 1993 (PP 76-77, PARAS B-D)
12. SHUAIBU ABDU VS. THE STATE (2014) LPELR-22562 (CA)
13. HASSAN VS. STATE (2001) 15 NWLR (PART 735) 184
14. KAZEEM VS. STATE (2009) WRN 43
15. OSETOLA VS. STATE (2012) 17 NWLR (PART 1329) 251
16. NDIKE VS. STATE (1994) LPELR- 1971 (SC)
17. SEE NASAMU VS. THE STATE (1979) 6-9 SC 153
18. KALU VS THE STATE (1988) 4 NWLR (PART 90) 503
19. AKPAN VS. THE STATE (1991) 3 NWLR (PART 182) 646
20. SELE VS. THE STATE (1993) 1 NWLR (PART 269) 276
21. OTTI VS. THE STATE (1991) 8 NWLR (PART 207) PG 103 @120-1 PARA F-C
22. THEOPHILUS VS. STATE (1996) 1 NWLR (PART 423) 139
23. SEBASTIAN S. YONGO & ANOR VS. COMMISSIONER OF POLICE (1992) NWLR (PART 257) 36.
24. THE PEOPLE OF LAGOS STATE VS. UMARU (2014) LPELR-22466(SC)
25. R. V BRAIMOH (1943) 9 WACA; 197;
26. THE STATE VS. AIYEOLA & DIKE (1969)1 ALL NLR 303;
27. NWACHUKWU VS. THE STATE (1985) 3 NWLR (PART 11) 218
28. AREMU & ANOR VS. THE STATE (1991) 7 SCNJ (PART 2) 296
29. SALAMI VS. THE STATE (1988) 3 NWLR (PART 85) 670
30. ADEKOYA VS. THE STATE (2012) 9 NWLR (PART 1306) 536
31. SOWEMIMO VS. THE STATE (2012) 2 NWLR (PART1284)374
32. ADESINA VS. THE STATE (2012) 14 NWLR (PART 1321) 429
33. R.V GRILIOPOULOUS (1953) 20 NLR, 114
34. NSOFOR & ANOR VS. THE STATE (2004) 9-12 SCM @ 67 to 42
35. R.V. SYKES (1913) 1 CR.APP.REP.233
I shall adopt the issues that were formulated by the appellant in the brief filed and I will also resolve the three (3) issues together. These issues again are as follows:-
1. Whether from the content of Exh. J1 and Exh.J2 (the Appellant extra judicial statement to the police) it can be said that the appellant confessed to committing the alleged offence?
2. Whether the alleged confessional statement embodied in Exh. J1 and Exh. J2 does not contain material contradictions to cast doubt in the mind of ‘a reasonable judge’
3. Whether the trial Court was not in grave error when it placed the burden on the appellant to prove his innocence beyond reasonable doubt instead of putting on the legal binoculars to see that the piece of evidence adduced by the prosecution did not meet the requirement of the law in Section 135 (1) of Evidence Act of proof beyond reasonable doubt?
There are three (3) ways of proving a crime in Court. These are by (i) Direct evidence; (ii) Confessional statement/statements made by the defendant; and (iii) Circumstantial evidence. See BILLE VS. THE STATE (2016) LPELR-40832(SC); ADEYEMO VS. STATE (2015) 4 SC (PT.11) 112; OGEDENGBE VS. STATE (2014) ALL FWLR (PT. 752) 1725; IGABELE VS. STATE (2006) ALL FWLR (PT. 311) 1797, (2006) 2 SC (PT.11) 616; EMEKA VS. STATE (2001) 14 NWLR (PT. 734) 666.
A confession is an admission made at any time by a person charged with a criminal offence, stating or suggesting the inference that he committed the crime. See Section 28 Evidence Act; UBIERHO VS. STATE (2003) ALL FWLR (PT. 254) 804. A free and voluntarily confession of guilt if direct and duly made and satisfactorily proved, is sufficient to warrant conviction even without collaborative evidence so long as the Court is satisfied of the truth of the confession. See JIMOH YUSUF VS. STATE (1976) 9 SC 167; EDET OBASI VS. STATE (1965) NWLR 119; JAMES CHIOKWE VS. STATE(2012) LPELR -19716 (SC).
A confessional statement is the best evidence in our criminal procedure. It is a statement of admission of guilt by a defendant and the Court must admit it in evidence unless it is contested at the trial. Once a confessional statement is admitted, the prosecution need not prove the case against the defendant beyond reasonable doubt as the confessional statement ends the need to prove the guilt of the defendant. See SOLOLA VS. STATE (2005) ALL FWLR (PT 269) 1751. However the confessional statement must be unequivocal in the sense that it leads to the guilt of the maker. See AWOSIKA VS. STATE (2009) 4 NCC 348.
In the course of trial, a defendant could impeach his statement by establishing that his earlier confessional statement cannot be true by showing: (i) That he did not in fact make any such statement as presented: or (ii) That he was not correctly recorded: or (iii) That he was unsettled in mind at the time he made the statement: or (iv) That he was induced to make the statement. Furthermore, it is the law that the only permissible time a Defendant is allowed to object to the admissibility of his alleged confessional statement on the ground that it was not voluntarily made is during the time the statement is sought to be tendered in evidence and not afterwards. See ABDU VS. STATE (2014) LPELR – 22562 (CA); HASSAN VS. STATE (2001) 15 NWLR (PT.735) 184; KAZEEM VS. STATE (2009) WRN 43; OSETOLA VS. STATE (2012) 17 NWLR (PT. 1329) 251; OLALEKAN VS. STATE (2002) FWLR (PT.91) 1605; AKPAN VS. STATE (1992) 6 NWLR (PT.248) 439; MOHAMMED VS. STATE (1991) 5 NWLR (PT.192) 438.
It is clear from the record, that the appellant herein withdrew his initial objection to the admissibility of Exhibit J1 and J2, and did not at the trial impeach the confessional statement in any manner whatsoever. I have examined Exhibits J1 and J2 and I find them confessional in nature. I agree with the finding of the learned trial judge when he held on pages 256 – 261 of the record of appeal as follows:
“Now, it is trite principle of law that the extra-judicial statement made by the Defendant to the Police tendered by the prosecution form part of the case of the prosecution. See IKUEPENIKAN VS THE STATE (2011) 1 NWLR (PT. 1229) 499. In his statement dated 11/7/2013, Exhibit J1, the defendant stated in part:
…Today being 11/7/2013 at about 8:30 hrs., what happened was that sometime this month of July 2013 about two weeks ago, a friend of mine by name Mr. Benjamin introduced me to one Alhaji Sani that he is a businessman which he deals with motor. The said Benjamin also connected me with him that I should be waking (I think working) with him so that he will be settle me, that whenever he got business of motor he will be calling me. Then yesterday, Alhaji Sani call me on phone that I should meet him in Jabi Abuja. On reaching Jabi, I saw Alhaji Sani with one Mercedes Benz 190. Few minutes later, Alhaji Sani received a phone call and later asked me to enter his vehicle Mercedes Benz 190 when he took me to city gate along airport expressway Abuja. While reaching there, the said Alhaji Sani came down from his vehicle and left me to other line (I think lane)
where he met two young men. After finishing their discussion he came back and met me, where he hand over a key of Toyota Corolla vehicle to me with Reg. Noash color and told me to go and wait for him at Zuba Abuja. Then on my way going, a team of Police men on stop and search at Lugbe arrested me with the said vehicle. I have steal a Honda baby boy and handover to the said Alhaji Sani from Suleja where he told me to wait for him at Gwagwalada but I don’t know where Alhaji Sani went and sold the car…. it was Benjamin introduce me into robbing and snatching vehicle. We are three in number in our gang, myself, Alhaji Sani and Benjamin…
In his statement dated 12/7/2013, Exhibit 12, the Defendant stated how a Toyota Camry was snatched and handed over to him by Latin at Nasarawa State which he (defendant) passed to Alhaji Sani who sold it at the rate of N200,000.00 and N20,000.00 was given to him as his percentage. He also stated that Yusuf and Latin brought a 406 vehicle from Nasarawa State, which they handed over to him. He gave it to Alhaji Sani at the cost of N130, 000.00, but Alhaji Sani never paid him the money.
He concluded that ‘Alhaji Sani is a receiver and he has received about three vehicles from me.”
Although there is no argument by learned defence counsel that the defendant did not make Exhibits J1& 12 voluntarily, it is necessary to point out that in his evidence, the defendant stated that the Police tortured him at SARS and forced him to agree that he was the one who stole the car in issue. I pause to note that in Exhibits 11 & 12, the defendant did not admit that he stole the Toyota Corolla car. If he admitted that he stole the said car, his no case submission in respect of count 2 would have been overruled. However, this piece of evidence may suggest – or may create the impression – that the defendant did not make Exhibits 11 & J2 voluntarily.
During the evidence of PW3 on 18/5/2016, prosecuting counsel applied to tender defendant’s statements to the Police. The defence counsel objected to the admissibility of the statements on the ground that it was not made voluntarily by the defendant. The Court ordered a trial within the trial. On 27/5/2016, learned counsel for the defendant (A. Maisamari Esq) said: “we have conferred with our client. We have decided to withdraw the objection to the admissibility of the statement of 1st defendant so that the trial can proceed. I hereby withdraw the objection.” The statements of the defendant were then admitted in evidence.
The law is well established that the time to object to any confessional statement tendered by the prosecution is at the time the prosecution seeks to tender same. Where the accused does not challenge the voluntariness of his statement at the appropriate time and the statement had been admitted in evidence, he cannot turn around during his oral testimony to deny the voluntariness of the statement to the Police. See the cases of NWOKEARU VS STATE [2010] 15 NWLR [PT 1215] and ODEH VS STATE [2008] 13 NWLR [PT 1103] 1. Thus, defendant cannot turn around during his oral testimony to deny the voluntariness of his statements to Police or create the impression that he did not make Exhibits 11 &12 voluntarily.
The law is trite that there are three ways of proving the commission of a crime, namely; [a] evidence by eye witnesses; [b] the confession of the accused person; or [c] circumstantial evidence.
See NWOKEARU VS STATE [SUPRA]. It is also the law that a confessional statement remains the best evidence in proof of guilt if the confessional statement is adjudged positive, direct and freely made by the accused person. See ABDU VS STATE [2014] LPELR – 22562 [CA].
It is my respectful view that from the positive and direct statements of defendant, which were freely made; there is no doubt about the nature of the defendant’s relationship with Alhaji Sani before 10/7/2013. As E.T.C. Emezina put it, both of them are ‘Partners in crime’: Defendant disclosed that “we are three in number in our gang, myself, Alhaji Sani and Benjamin”. From the defendant’s statements, Exhibits J1 & 12, I am of the well considered view that the defendant knew or had reason to believe that the car which was recovered from him was stolen. Clearly, the defendant received the car dishonestly. I agree with ET.C. Emezina that in the light of Exhibits 11 &J2, the mere mention by the defendant that it was Alhaji Sani that gave him the stolen car will not exonerate or exculpate him from guilt for the offence charged. It is necessary to point out that the car was stolen from PW1 at about 8:20p.m and recovered from the defendant around 10:30p.m. This means that Alhaji Sani handed over the car to the defendant at night between the hours of 8:20 and 10:30 if truly the defendant did not know that the car was stolen, the time the car was handed over to him by Alhaji Sani his partner in crime would have reasonably put him on inquiry about the source of the car.
Having carefully evaluated the evidence before the Court especially the defendant’s statements to the Police, I hold that the prosecution has proved this ingredient of the offence charged beyond reasonable doubt.
In arriving at the above decision, I have considered the argument of Mr. Idoko that there are inconsistencies in the evidence of PW2 & PW3 especially with regards to Alhaji Sani. Counsel zeroed in on the evidence of PW2 &PW3 as to whether they got the telephone number of Alhaji Sani from the defendant’s telephone, which was seized when he was arrested. It was also pointed out that the investigators did not get the telephone call log of Alhaji Sani from the services providers. The standpoint of E.T.C. Emezina is that there is no inconsistency in the evidence of PW2 & PW3.
It is trite law that for any contradiction in the evidence of the prosecution witnesses to be fatal to its case, such contradiction must be material, substantial and fundamental to the main issue in controversy. I do not agree with learned defence counsel that there is any material inconsistency in the evidence of PW2 & PW3. Be that as it may, having found that in the light of the relationship between the defendant and Alhaji Sani, defendant knew or had reason to believe that the said car was stolen, it would not matter whether or not the Police made efforts to arrest Alhaji Sani, The Police did not need Alhaji Sani to prove that the defendant knew or had reason to believe that the car found in his possession was stolen. As rightly stated by the learned prosecuting counsel, the arrest of Alhaji Sani would not have exonerated the defendant from the charge; rather they would have been charged together.”
There are no material contradictions in Exhibits J1 and J2 that will cast doubt in the mind of any reasonable judge that the appellant did not confess to the commission of the crime.
It should be pointed out that it is not all contradictions in the testimony of the prosecution witnesses that are fatal to its case. For any conflict or contradiction to be fatal, it must be substantial and fundamental to the main issues in question before the Court. It is not every trifling inconsistency, if any, in the evidence of the prosecution witnesses that is fatal to its. case. Such inconsistency must create some doubt in the mind of the trial Court before a defendant is entitled to benefit therefrom. See NDIKE VS. STATE (1994) LPELR – 1971 (SC); NASAMU VS. STATE (1979) 6 – 9 SC 153; KALU VS.STATE (1998) 4 NWLR (PT. 90) 503; AKPAN VS. STATE (1991) 3 NWLR (PT. 182) 646; SELE VS. STATE (1993) 1 NWLR (PT. 269) 276; OTTI VS.STATE (1991) 8 NWLR (PT. 207) 103; THEOPHILUS VS.STATE (1996) 1 NWLR (PT. 423) 139.
It must be emphasized that where a confessional statement of a defendant standing trial in Court contains both denials and admissions of guilt, this cannot be described as an inconsistency. The prosecution is entitled to rely on the admissions made in the said statement and a trial Court is also entitled to disregard the exculpatory denials and convict the defendant on the incriminating parts. See IGBI VS. STATE (2000) FWLR (PT. 3) 358(SC); GARBA VS. STATE (1997) 3 NWLR (PT. 492) 144 (SC).
The Court placed the burden of proving the case beyond reasonable doubt on the prosecution. Before the learned trial judge went into an analysis of the facts, the evidence led, the law, and his findings, he held at page 253 of the record of appeal as follows:-
“From the arguments of both learned counsel, the issue for determination is whether the prosecution has proved the offence of unlawful possession of stolen vehicle against the defendant beyond reasonable doubt.
The essential ingredients of the offence of receiving stolen property are: [a] that the property in question is stolen property; [b] that the accused received or retained such property; and [c] that he knew or had reason to believe that the property was stolen property. See SEBASTIAN S. YONGO & ANOR VS COMMISSIONER OF POLICE 4 SCNJ 113 and BLESSING VS FRN [2015] 113 NWLR [PT. 147511.
As rightly stated by the learned counsel for the prosecution, the evidence before the Court shows that the PW1’s car was stolen and that the car was found in possession of the defendant about two hours after it was stolen. The learned defence counsel did not argue that the prosecution did not prove the first and second ingredients of the offence charged. I hold that the prosecution proved beyond reasonable doubt that the car in question was stolen property and that the defendant received the car. It remains to determine whether prosecution discharged the burden to prove beyond reasonable doubt that the defendant knew or had reason to believe that the car he received – or which was recovered from him – was stolen.”
Clearly, the learned trial judge did not place any burden on the appellant to prove his innocence beyond reasonable doubt. The learned trial judge properly placed the legal binoculars and saw that the pieces of evidence adduced by the prosecution met the requirement of the law in Section 135(1) of the Evidence Act 2011 of proof beyond reasonable doubt.
I find no merit in this appeal. The appeal is hereby dismissed. The judgment of the trial Court is hereby affirmed.
ABUBAKAR DATTI YAHAYA, J.C.A.: I have read in advance, the leading judgment of my learned brother M. B Idris JCA just delivered.
I agree with his reasoning and the conclusion reached. I also find no merit in the appeal and I dismiss it. I affirm the judgment of the trial Court in CR/41/2013 delivered on the 3rd of July 2017.
STEPHEN JONAH ADAH, J.C.A.: I was privileged to read in draft the judgment just delivered by my learned brother, Mohammed Baba Idris, JCA.
My brother has painstakingly resolved all the issues raised in this appeal. I agree completely with the reasoning and conclusion thereat. I too do not find any merit in this appeal. The appeal is accordingly dismissed.
Appearances:
Omachoko Alhassan Idiko, Esq.For Appellant(s)
Bada Oluwa-Funke RebeccaFor Respondent(s)
