AFOLABI v. STATE
(2022)LCN/16071(CA)
In The Court Of Appeal
(ADO-EKITI JUDICIAL DIVISION)
On Friday, March 25, 2022
CA/EK/25C/2021
Before Our Lordships:
Theresa Ngolika Orji-Abadua Justice of the Court of Appeal
Tunde Oyebanji Awotoye Justice of the Court of Appeal
Abdul-Azeez Waziri Justice of the Court of Appeal
Between
NIYI IBRAHIM AFOLABI APPELANT(S)
And
THE STATE OF EKITI RESPONDENT(S)
RATIO
DEFINITION OF OFFENCE OF RECEIVING STOLEN PROPERTY
Section 5 of the Robbery and Firearms (Special Provisions) Act defines the offence of Receiving stolen property thus:
“Any person who receives anything which has been obtained by means of any act constituting an offence under this Act shall be liable on conviction to be sentenced to imprisonment for life.”
The apex Court in YONGO & ANR v. COP (1992)8 NWLR PART 257 PAGE 36 explained the essential ingredients of the offence of receiving stolen property this way:
“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 property.”
Per KARIBI-WHYTE JSC. PER AWOTOYE, J.C.A.
TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal filed by the Appellant who was the 12th Defendant at the lower Court in Charge No: HAD/40C/2016 in the Amended Information. He later became the 9th Defendant of the 6 counts of the Amended Information, only count 6 is relevant to the Appellant.
Count 6 of the Amended Information reads:
“ACP OKUBO ABOYE and NIYI IBRAHIM AFOLABI on or about the 19th day May, 2015 at Ado-Ekiti, within the jurisdiction of this Honourable Court did receive a TOYOTA HILUX VAN with Registration Number: APP 509 BK (LAGOS) property of one MOSES AJOGRI, knowing that same has been stolen.”
The charge was read and explained to the Defendants.
Hearing later commenced after which the learned trial Judge entered judgment convicting the Appellant in the following terms:
“The 9th Defendant said the person he did not know before called him on phone that he wanted to sell a vehicle and he agreed to buy from him on phone that he wanted to sell a vehicle and he agreed to buy from him not minding whether the person is a thief or not. The 8th Defendant who as at that time was Assistant Commissioner of Police agreed to buy a vehicle ownership of which he did not confirm or ascertain. According to the 9th Defendant, Lanre who called him that he wanted to sell a vehicle did not come to him but sent another person to bring the vehicle and the 9th Defendant without confirming from him if he is in the business of buying and selling of vehicles agreed to buy the vehicle. The 9th Defendant in his extra-judicial statement to the police stated that he destroyed the SIM CARD which contained the number of the seller of the vehicle and the bank teller through which he paid the second payment. The question is why did he destroy the Sim Card and the teller if he did not know that the vehicle was stolen? The simple answer is that he destroyed the Sim Card and the teller in connivance with the 8th Defendant to make it impossible for anyone to trace the Seller. It is a clear attempt to cover up their nefarious activity. To crown it all, the 9th Defendant said initially that Lanre told him he wanted to sell the vehicle for N7,000,000.00 and eventually agreed to take N4,000,000.00 out of which he was given just N4,000,000.00 as deposit if not a thief. The reaction of the 8th Defendant when PW7 told him of their mission in the State and his subsequent instruction to the 9th Defendant that he should go and remove the vehicle from his house is a clear indication that he knew that the vehicle was stolen.
Considering the facts and circumstances of this case, I am of the view that there is overwhelming evidence from which inference of guilty knowledge that the 8th and 9th Defendants knew that the Toyota Hilux Van was stolen by the seller can be drawn and I so hold.”
Aggrieved by the above decision, the Appellant filed a Notice of Appeal containing 10 Grounds of Appeal.
GROUND 1
The trial Court erred in law and thereby breached the Appellants Constitutional right to fair hearing/trial under Section 36(1) of the 1999 Constitution of Nigeria when it tried, convicted and sentenced him (Appellant) to Life Imprisonment for the offence of Receiving Stolen Property contrary to Section 5 of the Robbery and Firearms (Special Provision) Act, L.F.N., 2004 allegedly committed in Ilorin, Kwara State outside it’s (the Court’s) territory jurisdiction.
GROUND 2
The trial Court erred in law and thereby breached the Appellant’s constitutional right to fair hearing/trial under Section 36(1) of the 1999 Constitution of Nigeria when it convicted and sentenced him to Life Imprisonment for the offence of receiving stolen property.
GROUND 3
The trial Court erred in law and thereby breached the Appellant’s constitutional right to fair hearing/trial under Section 36(1) of the 1999 Constitution of Nigeria when he convicted and sentenced the Appellant to life imprisonment for the offence of receiving stolen property without the evidence of Rasheed Ogungbemi (the only witness that can ascertain the real owner of the vehicle and circumstances under which it8 was allegedly stolen) as well as that of Moses Ajogri (the supposed victim).
GROUND 4
The trial Court erred in law and thereby breached the Appellant’s constitutional right to fair hearing/trial under Section 36(1) of the 1999 Constitution of Nigeria when he relied on his (Appellant’s) Extra Judicial Statements to convict and sentence him to life imprisonment.
GROUND 5
The trial Court erred in law when at the end of the day it convicted the Appellant for receiving property allegedly stolen in the course of armed robbery despite the fact that in its considered ruling on No-Case-Submission, it had discharged and acquitted him and his other Co-Defendants of the offence of armed robbery.
GROUND 6
The trial Court erred in law when it rejected the Appellant’s argument on No-Case-Submission.
GROUND 7
The trial Court erred in law and thereby breached the Appellant’s constitutional right to fair hearing/trial under Section 36(1) of the 1999 Constitution of Nigeria when it held that the Respondent is caught up with the doctrine of recent possesssion as enshrined in Section 167 of the Evidence Act.
GROUND 8
The learned trial Judge erred in law when he held as follows:
“In my view, the evidence adduced in the case by the prosecution is sufficient to infer that the 8th and 9th Defendants knew or had reasons to know that the vehicle was stolen.”
GROUND 9
The trial Court erred in law when it relied upon the Respondent’s weak unsubstantiated and unproven evidence to convict and sentence the Appellant to life imprisonment.
GROUND 10
The decision of the trial is unreasonable unwarranted and cannot be supported having regard to the evidence adduced at the trial.
The Record of Appeal was later transmitted to this on 1/3/2021.
Parties subsequently filed and exchanged briefs of argument.
BRIEF OF ARGUMENT
The Appellants’ Brief of Argument was settled by TAIYE ONIYIDE and filed on 1/4/2021.
The Reply Brief of Argument was filed on 15/11/2021.
Learned Appellants’ counsel formulated six issues for determination as follows:
ISSUE 1
Whether the Honourable trial Court of the High Court of Justice, Ekiti State was right when it assumed jurisdiction to try, convict and sentence the Appellant to life imprisonment for the offence of receiving stolen property allegedly committed in Ilorin, Kwara State which is outside its territorial jurisdiction.
ISSUE 2
Whether the Honourable trial Court was right when after finding in its ruling on NO Case Submission that the Respondent did not prove the offence of armed robbery, still proceeded to convict the Appellant for receiving a property allegedly stolen from the same armed robbery.
ISSUE 3
Whether the Honourable trial Court was right when it convicted and sentenced the Appellant to life imprisonment for the offence of receiving stolen property without the evidence of Rasheed Ogungbemi (“the only witness that can ascertain the real owner of the vehicle and circumstances under which it was allegedly stolen and Moses Ajogri (“the supposed victim”)
ISSUE 4
Whether the Honourable trial Court was right when it convicted and sentenced the Appellant to life imprisonment for the offence of Receiving Stolen Property.
ISSUE 5
Whether the Honourable trial Court was right when it relied on the Appellant’s extra-judicial statements to convict and sentence him to life imprisonment.
ISSUE 6
Whether the Honourable trial Court was right when it relied on the Respondent’s weak, unsubstantiated and unproven evidence to convict and sentence the Appellant to life imprisonment.
F.O. AWONIYI, Deputy Director Public Prosecution, Ministry of Justice Ekiti State settled the Respondent’s brief filed on 9/11/2021.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
Learned Deputy Director proposed three issues for determination thus:
ISSUE 1
Whether considering the facts of this case, the trial Court was not right when it assumed jurisdiction, tried, convicted and sentenced the appellant for the offence of receiving stolen property.
ISSUE 2
Whether from the totality of the evidence adduced by the Prosecution, the learned trial Judge was not right when it convicted and sentenced the Appellant to life imprisonment for receiving stolen property in its judgment delivered on 14/1/2021 despite the ruling on no-case submission of 23/7/2020.
ISSUE 3
Whether the trial Court was in error when the Court relied on Exhibit F in the conviction and sentence of the Appellant.
Their respective submissions are their respective briefs of argument. Since the Appellant is the aggrieved in this appeal, I shall adopt the issues crafted by the Appellant in this Judgment.
ISSUE 1
Whether the Honourable trial Court was right when it assumed jurisdiction to try convict and sentence the Appellant to life imprisonment for the offence of receiving stolen property allegedly committed in Ilorin, Kwara State which is outside its territorial jurisdiction.
The charge against the Appellant is that he received, on or about 19th day of May, 2015, in Ado Judicial Division in Ekiti State, a Toyota Hilux Van with Registration Number Lagos App 509 BK belonging to one Moses Ajogiri knowing same to have been stolen.
The vehicle was however received in Ilorin, Kwara State.
Section 5 of the Robbery and Firearms (Special Provisions) Act defines the offence of Receiving stolen property thus:
“Any person who receives anything which has been obtained by means of any act constituting an offence under this Act shall be liable on conviction to be sentenced to imprisonment for life.”
The apex Court in YONGO & ANR v. COP (1992)8 NWLR PART 257 PAGE 36 explained the essential ingredients of the offence of receiving stolen property this way:
“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 property.”
Per KARIBI-WHYTE JSC.
To ground jurisdiction for the trial of an accused in a State, the prosecution must establish that any of the above elements occurred within that state. Section 12A of the Criminal Code Law of Ekiti State reads thus:
1. “Where by the provisions of any law of Ekiti State, the doing of any act or the making of any omission constituted an offence, those provisions shall apply to every person who is in Ekiti State at the time of the doing the act or making the omission.
2. With regard to any such offence which is of such a nature that it comprises several elements, if any act or omission or event actually occur, which if they all occurred in Ekiti State, although all or some of the other acts or omissions or event which, if they occurred in Ekiti State, would be elements of the offence occur elsewhere than in Ekiti State, then –
a) If the act or omission, which in the case of an offence committed wholly in Ekiti State would be the initial element of the offence, occurs in Ekiti State, the person who does that act or makes that omission is guilty of an offence of the same kind and is liable to the same punishment as if all subsequent elements of the offence had occurred in Ekiti State; and
b) If that act or omission occurs elsewhere than in Ekiti State, and the person who does that act or makes that omission afterward comes into Ekiti State, he is by such coming into Ekiti State guilty of an offence of the same kind and is liable to the same punishment, as if that act or omission had occurred in Ekiti State and he had been in EKiti State when it occurred.
But in any such case, it is a defence to the charge to prove that the accused person did not intend that the act or omission should have effect in Ekiti State. This subsection does not extend to a case in which the only material event that occurs in Ekiti State is the death in Ekiti State of a person whose death is caused by an act, done or omitted to be done, at a place not in Ekiti State and at a time when he was not in Ekiti State.”
It appears to me difficult to take stealing of the property stolen as an element of the offence of receiving.
It is to my mind, a launching pad for the offence of receiving to occur but it is not an element of such an offence. The two are different and distinct.
It has been contended by learned counsel for the Respondent citing OKORO v. A-G OF WESTERN NIGERIA (1966) NWLR 13, AND PATRICK NJOVENS & 3 ORS v. STATE (1973) NSCC 257 that where element occur partly in one region and partly in another region the Courts in both regions have the concurrent jurisdiction to try the offence. I agree. But the initial element must be an ingredient of the offence which should not be separate and distinct. It must be integral and not extrinsic. This is why I am inclined to resolve this issue in favour of the appellant.
I am of the view that it is unnecessary to resolve the other issues since I am making an order of retrial and holding that the High Court of Justice Ekiti State lack jurisdiction to conduct the trial in respect of the Appellant.
In the circumstance, this appeal succeeds. The trial and judgment by the lower Court in charge no: HAD/40C/2016 delivered on 14/1/2021 is hereby set aside. An order of retrial is hereby made instead.
Charge No: HAD/40C/2016 with respect to the 9th Defendant/Appellant is hereby remitted back to the Chief Judge, High Court of Justice Kwara State to be retried by a Judge of the said Court.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.
ABDUL-AZEEZ WAZIRI, J.C.A.: I have been given a draft copy of the leading judgment delivered by my noble Lord, TUNDE O. AWOTOYE, JCA. I am completely satisfied with the detailed and adroit reasoning and impeccable conclusions reached therein.
My Lords, in law the issue of Jurisdiction is so fundamental to adjudication and without it a Court would lack the power to entertain the case over which it had not the requisite jurisdiction since to do otherwise would amount to a nullity no matter how well conducted the proceedings might be or how sound the resultant judgment might be.
This is exactly what happened in the instant appeal. The lower Court in Ekiti here lacked the vires to try the 9th Appellant as rightly found by my noble lord in the leading judgment which I endorse as mine. I also abide by the consequential order of retrial made.
Appearances:
DR. TAYE ONIYIDE For Appellant(s)
F.O. AWONIYI (D.D.P.P.) with him O. F. AJUMOBI Esq. (P.L.O) For Respondent(s)