BABAGANA v. STATE (2020)

BABAGANA v. STATE

(2020)LCN/14798(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Tuesday, November 10, 2020

CA/G/521c/2019

RATIO

CRIMINAL LAW: INGREDIENTS FOR THE OFFENCE OF THEFT UNDER SECTION 287 OF THE PENAL CODE

The ingredients for the offence of theft under Section 287 of the Penal Code, Laws of Borno State, 1994 are as follows:
1. That the property in question is movable property.
2. That the property was in the possession of a person.
3. That the accused person moved the property whilst in the possession of the person.
4. That he did so without the consent of that person.
5. That he did so in order to take the property out of the possession of that person.
6. That he did so with the intent to cause wrongful gain to himself or wrongful loss to that person. PER HANNATU SANKEY, J.C.A.
EVIDENCE: BURDEN OF PROOF OF THE CHARGE OF THEFT

The burden of proof of the charge of theft levied against the Appellant is without a doubt on the prosecution, now Respondent, and the standard is beyond reasonable doubt – Section 135 of the Evidence Act, 2011. PER HANNATU SANKEY, J.C.A.

EVIDENCE: RULES GOVERNING CIRCUMSTANTIAL EVIDENCE

It is the law that circumstantial evidence is one the of legitimate means of proving offences in a Court of law. It is in the same company as direct evidence and also where an accused person decides to issue a voluntary confession, making a clean breast of it and confessing to the crime. However, before a Court of law will act on the circumstantial evidence before it, it must satisfy itself that such character of evidence is cogent, compelling and points irresistibly to the fact that the accused person committed the offence.
Circumstantial evidence, it should be noted, is nothing more than evidence that irresistibly flows from established facts. Circumstantial evidence is as good as, sometimes even better than, any sort of evidence. What is meant by it is that there are a number of circumstances which are accepted so as to make a complete and unbroken chain of evidence. If that is accepted to the satisfaction of the Court, it may well and properly act on such circumstantial evidence.
In the decision of the Supreme Court in Vivian Odogwu V State (2013) LPELR-42802(SC) 23, B-D, Ngwuta, JSC ahelds follows:

“Speaking of circumstantial evidence, Lord Heward, CJ, said inter alia:
“… but circumstantial evidence is very often the best. It is evidence of surrounding circumstances which, by undesigned coincidence is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial.”
See R v. Taylor & Ors (1928) 21 CAR 20 at 21.”
In the more recent case of Esseyin V State (2018) LPELR-44476(SC) 12, C-D, the Supreme Court per Galumje, JSC pronounced on the scope of circumstantial evidence as follows:
“Circumstantial evidence is a testimony not based on actual personal knowledge or observation of the facts in controversy, but of other facts from which deductions are drawn, showing indirectly the facts sought to be proved.”
Finally, in another recent decision of the apex Court, State V Raphael Ifiok Sunday (Suit No. SC.709/2013 delivered on Friday, 8th March, 2019, 24-25, D-B, Okoro, JSC summarized it thus:
“Under our criminal jurisprudence, circumstantial evidence is defined as evidence of surrounding circumstances which by undersigned coincidence is capable of proving a proposition with mathematical exactitude, and that where direct evidence is unavailable, circumstantial evidence which is cogent, compelling and pointing irresistibly and unequivocally to the guilt of the accused is admissible to sustain a conviction. Circumstantial evidence consists of various pieces of evidence which in themselves alone cannot ground a conviction, but when put together can constitute a good solid case for the prosecution. Circumstantial evidence is as good as, and sometimes better than any other sort of evidence.”
See also Adesina V State (2012) LPELR-9722(SC) 12, D-E, per Adekeye, JSC; Udoh V State (2019) LPELR-47096(CA); Peter V State (2015) LPELR-25574(CA) 30-31, F-A; Michael Peter V State (1997) LPELR-2912(SC) 24-25, G-B, per Onu, JSC; Uyo V AG of Bendel State (1986) LPELR-3452(SC) 20, D-F, per Obaseki, JSC. PER HANNATU SANKEY, J.C.A.

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Between

KYARI BABAGANA APPELANT(S)

And

THE STATE RESPONDENT(S)

JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This Appeal is against the judgment of the High Court of Justice Borno State in Charge number BOHC/MG/CR/103/CT10/2019, delivered on September 2, 2019 by Ali, J. Therein, the Appellant was tried along with four (4) others and he was sentenced to five (5) years imprisonment for the offence of theft contrary to Section 287 of the Penal Code Laws of Borno State, 1994.

This is a sister Appeal to Appeal No. CA/G/520C/2019 and Appeal No. CA/G/522C/2019. It is an Appeal arising from the same decision, delivered on the same date, by the same Judge and wherein the Appellant in this Appeal was the 1st accused person and the Appellants in Appeal No. CA/G/520C/2019 and Appeal No. CA/G/522C/2019 were the 2nd and 3rd accused persons respectively.

Succinctly, the facts of the case are as follows: On 17-06-18, one Hussaini Idris aged 19 years, went out with his Tricycle, commonly referred to as “Keke Napep”, for commercial purposes around town and he has not been found to date. His father, PW2, embarked upon a search for the young man, to no avail. However,

on September 24, 2018, the Tricycle was found with one Mohammed Ibrahim, the Appellant’s brother. Upon being accosted, Mohammed stated that it was his mother, PW1 and elder brother who bought it for him from a Customs Officer, the 1st Appellant herein. Police investigations led to the arrest of the Appellant and four other suspects, namely: Babagana Grema, Mustapha Ibrahim, Dauda Musa and Sayinna Modu. All five suspects were then charged to the trial High Court for the offences of conspiracy to kidnap, kidnapping, theft, receiving stolen property and forgery contrary to Sections 97, 273, 287, 317 and 364 of the Penal Code Laws of Borno State, 1994.

The Appellant and Babagana Grema were together charged in three counts of the charge for conspiracy, kidnapping and theft of the Tricycle. They both pleaded not guilty. Therefore, the Respondent adduced evidence in proof of the charge through eight (8) witnesses and ten (10) Exhibits. The Appellant and the other four (4) accused persons each testified in their defence and called no other witness. At the close of trial, the learned trial Judge found the Appellant and Babagana Grema not guilty of the

offences of conspiracy to kidnap and kidnapping, but guilty of the offence of theft. He therefore convicted and sentenced both of them to five years imprisonment each under Section 287 of the Penal Code Laws (supra). Therefore, aggrieved by this decision, the Appellant appealed to this Court on September 5, 2019 wherein he complained on ten (10) grounds.

At the hearing of the Appeal on September 8, 2020, S.M. Konto Esq., learned Counsel for the Appellant, adopted the submissions in the Appellant’s Brief of argument filed on 08-06-20 and settled by the same Counsel, in urging the Court to allow the Appeal, set aside the judgment of the trial Court and discharge and acquit the Appellant. In the same vein, A.I. Alkali, Esq., Principal State Counsel with Borno State Ministry of Justice, adopted the submissions in the Respondent’s Brief of argument filed on 29-06-20 but deemed duly filed on 08-09-20, by settled by B.R. Balami Esq., Director of Public Prosecution, in urging the Court to dismiss the Appeal and affirm the judgment of the trial Court.

The Appellant in his Brief of argument distilled the following four (4) issues for determination:

Whether upon [a] careful and dispassionate appraisal of the evidence in this case, the Respondent has discharged the requisite burden of proof upon it so as to justify the conclusion, conviction and sentence of the Appellant for the offence of theft contrary to Section 287 of the Penal Code Laws of Borno State, 1994. (Grounds 1, 6, 8, 9 and 10)
2. Whether, given the surrounding circumstances of this case, the trial Court was right in relying on the doctrine of recent possession in convicting and sentencing the Appellant for the offence of theft contrary to Section 287 of the Penal Code Laws of Borno State, 1994. (Grounds 4 and 5)
3. Whether the conclusion by the trial Court Judge that Mohammed Ibrahim was able to explain how he came about being in possession of the controversial Keke Napep, was not perverse. (Ground 7)
4. Whether the sentence of the Appellant to five years imprisonment (maximum) for the offence of theft contrary to Section 287 of the Penal Code is not heavy and/or excessive in the circumstances of the case. (Ground 2)

The Respondent also adopted these issues for determination in its brief of argument.

The Appeal shall therefore be determined on these issues. However, they shall be addressed as follows: issues 1, 2 and 3 together and issue one alone.

ARGUMENTS
Issues one, two and three together:
1) Whether upon [a] careful and dispassionate appraisal of the evidence in this case, the Respondent has discharged the requisite burden of proof upon it so as to justify the conclusion, conviction and sentence of the Appellant for the offence of theft contrary to Section 287 of the Penal Code Laws of Borno State, 1994.
2) Whether, given the surrounding circumstances of this case, the trial Court was right in relying on the doctrine of recent possession in convicting and sentencing the Appellant for the offence of theft contrary to Section 287 of the Penal Code Laws of Borno State, 1994.
3) Whether the conclusion by the trial Court Judge that Mohammed Ibrahim was able to explain how he came about being in possession of the controversial Keke Napep, was not perverse.

Learned Counsel for the Appellant submits that the Respondent failed to establish the ingredients of the offence of theft under Section 287 of the Penal Code Laws (supra).

He contends that all eight (8) witnesses called by the Respondent did not prove that the Appellant moved the Tricycle, otherwise referred to as “Keke Napep” out of the possession of Hussaini Idrisa. Therefore, that the finding of the trial Court to the effect that the Tricycle was removed from the possession of Hussaini, as well as the finding that it was so removed without the consent of PW6 the owner, are perverse. He relies on Bode V COP (1970) NNLR 35; Mohammed V State (2008) FWLR (Pt. 30?) 2623, 2631; FRN V Adamu Nuhu (2015) LPELR-CA/K/295/C/2014.

Counsel submits that there was no direct or circumstantial evidence or a confessional statement to establish the offence of theft against the Appellant. In addition, the stolen Tricycle was not tendered in evidence even though it had been returned to PW6 and was also listed in the proofs of evidence filed in Court by the Respondent before the onset of trial. Counsel therefore submits that the non-production of the Tricycle amounts to a failure to establish the case or withholding of relevant evidence which should be and is not produced, thereby invoking the provision of Section 167(d) of the Evidence Act, 2011

In addition, he contends that since the invoice for the purchase of the Tricycle, that is, Exhibit Invoice-1, contains different Engine and Chassis numbers from that stated in the proofs of evidence filed by the Respondent, the Tricycle itself should have been produced. Reliance is placed on People of Lagos State V Umaru (2014) All FWLR (Pt. 737) 658, 686; Zacheous V People of Lagos State (2015) All FWLR (Pt. (Pt. 783) 1973, 2003.

Counsel concedes that where direct evidence to establish the guilt of an accused person is unavailable, resort may be had to Section 167(a) of the Evidence Act (supra) under the doctrine of recent possession, to convict a person for theft of property found in his possession which has recently been stolen. However, he contends that the essential ingredients for the invocation of this provision were not established against the Appellant and 2nd accused person before they were convicted for theft of the Tricycle.

Counsel submits that there was no evidence to establish that the Appellant was found in possession of the property. Instead, it was found in the possession of Mohammed Ibrahim. He argues

that there was no evidence that the Tricycle was stolen property or that it was recently stolen, or that the Appellant admitted being in possession of the stolen Tricycle or that he failed to account for its possession. He therefore submits that the conviction cannot be sustained and relies on the following authorities: People of Lagos State V Umaru (supra) 684, 698; Haruna V State (2018) All FWLR (Pt. 969) 689, 712; Ogogovie V State (2016); Yongo V COP (1992) 8 NWLR (Pt. 257) 35, 51.

Counsel also submits that Mohammed Ibrahim in whose possession the Tricycle was found, did not testify and so he did not explain how he came be in in such possession. He therefore submits that the finding of the trial Judge at page 89 of the Record that Mohammed’s mother and brother bought the Tricycle from the Appellant, was perverse and runs counter to the evidence before the Court.

In response to these submissions, learned Counsel for the Respondent submits that the Respondent discharged the burden placed on it to prove the ingredients of the offence of theft under Section 287 of the Penal Code Laws (supra). She refers to the evidence of the eight (8)

prosecution witnesses who all testified that the Tricycle was found in the possession of the Appellant and the other two accused persons (now convicts).

On the ingredients of the offence of theft, Counsel submits that it is not disputed that the Tricycle is movable property. For proof that it was found in the possession of the Appellant, Counsel refers to the evidence of PW1 who testified that she bought the Tricycle for her son, 3rd accused person, from the Appellant and the DW2. She then gave it to her other son, Mohammed Ibrahim in whose possession it was subsequently recovered by the Police. Counsel submits that the Appellant and the four other accused persons who testified in their defence as DW1 to DW4 did not give any evidence to discredit this evidence on the issue of possession. She therefore submits that the Court could safely convict on this evidence which is undisputed and unchallenged – Alayande V State (2019) LPELR-…? (CA) 20, A-E (citation incomplete); Nkebisi V State (2010) 41 NSCQR 934, 950, A-E; Jamani V State (2005) QCCR 59-62, 71.

Counsel further submits that PW6 testified that he is the owner of the Tricycle which he

bought at the cost of N670, 000.00 and gave it to his nephew, Hussaini Idrisa, also known as Hussaini Magaji, who is still missing to date, to operate for commercial purposes. It was the same Tricycle that was later found in the possession of the Appellant and 2nd accused, who then sold it to PW1. Thus, the Appellant and the others charged along with him, deprived PW6 from the lawful possession of his Tricycle without his consent (pages 36-37 of the Record).

Counsel also refers to the evidence of PW1, Exhibit Invoice-1 and Exhibit Bond-1 in proof of the fact that PW1 paid the sum of N170, 000.00 to the Appellant and 2nd and 3rd accused persons, which money they shared amongst themselves. On the non-production of the Tricycle in Court, Counsel submits that it is not fatal to the case unless it is shown to have occasioned a miscarriage of justice – Baalo V FRN (2017) 14 NCC 1, 52.

Counsel submits that the Respondent relied on circumstantial evidence to prove the guilt of the Appellant; and that the Court can safely convict on circumstantial evidence which is compelling, cogent and which unequivocally points to the guilt of the accused person –

State V Ajayi (2012) 14 NCC 58, 102-103, H & A-B; Okoro V State (2012) 7 NCC 184, 255, D-F. He submits that even where there was no direct eyewitness account of the theft, the quality of the evidence before the trial Court is sufficient to conclude that the Appellant and the two other convicts were the perpetrators of the act.

RESOLUTION OF ISSUES ONE, TWO AND THREE
The ingredients for the offence of theft under Section 287 of the Penal Code, Laws of Borno State, 1994 are as follows:
1. That the property in question is movable property.
2. That the property was in the possession of a person.
3. That the accused person moved the property whilst in the possession of the person.
4. That he did so without the consent of that person.
5. That he did so in order to take the property out of the possession of that person.
6. That he did so with the intent to cause wrongful gain to himself or wrongful loss to that person.
The burden of proof of the charge of theft levied against the Appellant is without a doubt on the prosecution, now Respondent, and the standard is beyond reasonable doubt – Section 135 of the Evidence Act, 2011.

In the instant case before the trial Court, in order to discharge this burden to the standard required by law, the Respondent called a total of eight (8) witnesses and tendered ten (10) exhibits. Considered all together and set against the defence of the Appellant who testified but called no other witness and tendered no exhibit, in a bid to clear himself of the charge, the learned trial Judge found that the Respondent indeed satisfied the onus placed on it.

As has been submitted by the Respondent and obliquely referred to/accepted by the Appellant, the evidence on Record discloses that there was no direct evidence establishing that the Appellant stole the Tricycle from Hussaini Idris, who got missing when he went out on business with the Tricycle and sadly, is still missing till date, even though the Tricycle itself was recovered. However, can it be said that there was circumstantial evidence which the trial Court relied upon to convict the Appellant of theft. This is the issue that falls for the consideration of this Court under these three issues, and whether the learned trial Court came to a correct conclusion and decision in convicting the Appellant of theft.

coincidence is capable of proving a proposition with mathematical exactitude, and that where direct evidence is unavailable, circumstantial evidence which is cogent, compelling and pointing irresistibly and unequivocally to the guilt of the accused is admissible to sustain a conviction. Circumstantial evidence consists of various pieces of evidence which in themselves alone cannot ground a conviction, but when put together can constitute a good solid case for the prosecution. Circumstantial evidence is as good as, and sometimes better than any other sort of evidence.”
See also Adesina V State (2012) LPELR-9722(SC) 12, D-E, per Adekeye, JSC; Udoh V State (2019) LPELR-47096(CA); Peter V State (2015) LPELR-25574(CA) 30-31, F-A; Michael Peter V State (1997) LPELR-2912(SC) 24-25, G-B, per Onu, JSC; Uyo V AG of Bendel State (1986) LPELR-3452(SC) 20, D-F, per Obaseki, JSC.
I have gone to such lengths to establish the position of circumstantial evidence in the Nigerian jurisprudence because from the tenor of the Appellant’s submissions, there is an attempt to denigrate the character of circumstantial evidence relied upon by the trial Court to

convict the Appellant. Thus, it is settled law that circumstantial evidence is good evidence which a Court may properly act upon to convict an accused person of an offence, where it is cogent, compelling and also irresistibly points to his guilt.
Now the evidence adduced by the Respondent through its eight (8) witnesses (as reflected in the printed Record of Appeal) in summary is that the Appellant (as 1st accused person) and the 2nd accused person before the trial Court approached the PW1 with a story that the 3rd accused person (her son) had bought a Tricycle from the Appellant, had made a part-payment and wanted her (his mother) to pay the balance of N170, 000.00. Since she is basically the star-witness, permit me to reproduce the relevant portions of her evidence (contained at pages 27 to 28 of the Record) hereunder as follows:
“Hajje Ashe Ibrahim… I know the 1st, 2nd and 3rd accused person. The 1st and 2nd accused persons bargained for the sales of tricycle with my son 3rd accused person. My son 3rd accused person came and said he had negotiated for the tricycle but his money was not complete. He told me he bought the tricycle from

the 1st and 2nd accused person. The 1st accused person came with my son to Shehu’s Palace to meet me. I asked them about the transaction they said the remaining balance is N200,000.00 that an advance payment of N350, 000.00k had been made by my son. I asked for a reduction from them. They reduced N30,000.00 I was to pay N170, 000.00. I asked for a receipt they left and did not come back I then called them and said the receipt or my money back, they said they will bring the receipt… Later they brought the receipt I then collected and repaired the tricycle and they gave it to a rider. Then later two (2) weeks precisely the motorcycle was impounded and my son was detained. He was accused of killing the rider of the tricycle.”
Now the 3rd accused person charged for the count of dishonestly receiving stolen property, along with the Appellant and 2nd accused person, testified in his defence as DW3. Therein, he substantiated relevant portions of the evidence of PW1, who is his biological mother. Again, his evidence is crucial to the issues at stake. I will therefore reproduce a substantial portion of it from pages 71 to 72 of the Record as follows:

“He is Mustapha Ibrahim. The 1st accused used to give me items for auction to sell. They auction Cameroun soap which he gave people to sell. So I asked him for the soap and he used to give me and I used to sell it. One day he called me and told me he had a machine for auction … and the machine was working for him at that time. He said someone annoyed him and he wanted to sell it and he wanted me to buy it. He told me that the machine was N550,000.00 and in (sic) gave him N350,000.00 remaining N200, 000.00. He started pestering me for the balance. I said we should go to my mother. We went to my mother who asked him what his balance was and he told her. He reduced N20,000.00k for her. When we went to my mother he even said why did I make him reduce N20,000.00k. I pressurized him and he gave me the machine but did not give me its receipt. My mother and I will not work with the machine without a receipt, we paid the balance and he brought us the receipt. We discovered the receipt was wrong. He rectified the receipt and gave us still with some discrepancies. They later went and made a receipt after taking chassis number of the machine.”

Under cross-examination, DW3 stated further thus:
“I have not seen the Keke Napep before buying it from Kyari the 1st accused. I first saw the Keke Napep at the Custom Office when he showed it to me that was why I was convinced.”
In respect of the actual ownership of the Tricycle, the evidence of PW6, Umar Isa Magaji, was offered. He bought the Tricycle from Skarisco Investment Company on 26-01-18 at the cost of N670, 000.00. He then gave it to Hussaini Magaji, the son of his elder brother, to operate for commercial purposes. From the evidence of both PW6 and that of PW2, Hussaini Magaji’s father, Hussaini Magaji went missing along with the Tricycle when he went out to work on 17-06-18. While the Tricycle was subsequently recovered from Mohammed Ibrahim (DW3’s brother and PW1’s son), Hussaini Magaji (the rider) is still missing.
From the evidence related to the trial Court by both PW1 and DW3, it was the Appellant and the 2nd accused person who offered them the Tricycle for sale. The Appellant in his defence as DW1, instead of explaining how he came about the Tricycle for which he demanded and

received payment from PW1, engaged in finger-pointing with the 3rd accused person/DW3, who was also subsequently convicted for dishonestly receiving stolen property from him (Appellant). However, the Appellant did not deny that he did indeed approach PW1, presenting himself as the owner of the Tricycle which he sold to DW3 and so demanded and received payment for it from her in this guise. In addition, the Appellant in conjunction with the 2nd accused person, procured fake receipts in which they muddled up the Engine and Chassis numbers of the Tricycle which they gave to the PW1, which documents were admitted in evidence in Court.
By these pieces of evidence therefore, the prosecution established and the learned trial Judge rightly found that the it was the Appellant who sold the stolen Tricycle to the 3rd accused, and that the PW1 (at the request of her son DW3), innocently paid for it believing that it was an authentic and genuine transaction. This is more so that upon the insistent demand of PW1, the Appellant and 2nd accused person actually procured a fake receipt/invoice for the Tricycle which they handed over to her.
Further to this, from the

evidence of PW1, after paying for the Tricycle, it was given to a rider, but was subsequently impounded from Mohammed Ibrahim, one of her sons and the brother of 3rd accused person. Some of the Police officers involved in the investigations, that is, PW7 and PW8, disclosed that the Tricycle was recovered from Mohammed Ibrahim (son of PW1 and brother of DW3). From the evidence of the Appellant (as DW1) and the 2nd accused person (as DW2), it is confirmed that at the instruction of PW1, Mohammed Ibrahim paid them the sum of N100, 000.00, and after they had given him a receipt for the Tricycle, they went with him to Zenith Bank GRA Branch and collected the balance of N70, 000.00 as full payment for the Tricycle.
More telling is the viva voce evidence of the Appellant, as DW1, at pages 72 to 73 of the Record:
“… We went to see his mother. PW1 the mother of 3rd accused person. After we met her she said 3rd accused brought a machine home but we (sic) refused to allow him to use it. It has been in our house for 1 month, I told her that Abba was becoming responsible, she said she knew him better. That he is useless of that she (sic) should avoid him

or we (sic) will implicates us… she said that she did not agree with the origin of the machine. I told her that the 3rd accused person was becoming responsible. I then say I believed him that he bought the machine but did not complete payment that is why I came to you. She said the machine was too expensive. I reduced N30,000. She called her son, the elder brother to 3rd accused and told him to give us the money… Then Mohammed gave us N100, 000.00 … 2nd accused collected the money. He counted it … The 2nd accused counted N20,000.00 and gave me, and counted N20,000.00 again put in his pocket and gave N60, 000.00 to the 3rd accused person…”
From the evidence of the Appellant, he actually confirms the evidence of the PW1 that they (Appellant and 2nd accused) came to her to demand payment for the Tricycle, therefore presenting themselves as the persons who sold the Tricycle to her son, 3rd accused person. After persuading her that the transaction was genuine, she authorized payment to them; and 3rd accused person’s brother, Mohammed Ibrahim, paid them on her instruction and they promptly shared the money

amongst themselves, including the 3rd accused, who was also in the same proceedings convicted for dishonestly receiving stolen property from the Appellant and 2nd accused person. Later on in his evidence, the Appellant (as DW1) described how, after Mohammed Ibrahim paid them the balance of N70, 000.00, it was shared between him and the 2nd accused only. It is therefore difficult, if not impossible, for the Appellant to walk back from his own express testimony wherein he described the nefarious part he played in the saga of the stolen Tricycle.
From all these pieces of circumstantial evidence, while it is correct to say that there was no direct evidence to show that the Appellant and 2nd accused person stole the Tricycle from Hussaini Idris, its missing rider, their being in possession of the Tricycle relatively shortly after it was stolen, the subsequent sale to PW1 and finally the sharing of the proceeds of the sale between them, points irresistibly to the conclusion that they stole the Tricycle and disposed of it for monetary gain. The learned trial Judge was therefore right to have invoked the presumption of law in Section 167(a) of the Evidence Act

(supra). The provision provides as follows –
“The Court may presume the existence of any fact which it deemed likely to have happened, regard shall be had to the common course of natural events, human conduct and public and private business in their relationship to the facts of the particular case and in particular, the Court may presume that:-
A man who is in possession of stolen goods after the theft is either the thief or has received the goods knowing them to be stolen unless he can account for his possession.” (Emphasis supplied)
See Alarape V State (2001) FWLR (Pt. 41) 1873. Oseni V State (1984) 11 SC 44.
Therefore, the learned trial Judge cannot be faulted in his findings and conclusion in this regard.

In respect of the contention that the failure to call Mohammed Ibrahim in whose possession the Tricycle was recovered, as a witness, should have been fatal to the Respondent’s case, I agree with learned Counsel for the Respondent that the prosecution is not bound to call a host of witnesses where the witnesses presented are sufficient to prove the case against the accused person. In this regard PW1,

Mohammed Ibrahim’s mother, who negotiated with the Appellant and 2nd accused for payment of the Tricycle and who gave her son, Mohammed Ibrahim the Tricycle, gave explicit evidence of how she paid them the sum of N100,000.00 and further instructed her son Mohammed Ibrahim, to pay them the balance of N70, 000.00, which he did. Thereafter, he took possession of the tricycle while the DW3, who initiated the transaction with the Appellant, was out of town. As aforesaid, DW3 gave evidence in detail of his purchase of the Tricycle from the Appellant, a Customs Officer.

The Appellant has again sought to question or punch holes in the findings of the trial Court and its reliance on the invoice for the Tricycle presented by the prosecution, which he contends is inconsistent with the Engine and Chassis numbers stated in the proofs of evidence. To my mind, this is the Appellant scrambling frantically after the horse has bolted from the stable. The invoice was duly tendered and admitted in evidence, after an objection. The précis of evidence filed by the prosecution before trial is not evidence and therefore does not bind the trial Court.

Besides this, the Appellant and 2nd accused, as DW1 and DW2, gave detailed evidence about how they bent over backwards in their effort to procure false receipts to give to the PW1 who had insisted on it, from DW4 and DW5 after paying them the sum of N3000.00. If for any reason the Engine and Chassis numbers on the receipt/invoice produced and presented to the PW1 by the Appellant turned out to be wrong, the blame must be placed at his doorstep, and not on that of the Respondent. The Appellant and 2nd accused persons gave the 4th and 5th accused persons the information in respect of the Engine and Chassis numbers written into the receipt. Therefore, the Appellant should not expect to benefit from his own wrong.

Finally, I agree with the learned trial Judge that the failure to tender the stolen Tricycle in evidence is not fatal to the prosecution’s case since the ownership and identity of the Tricycle was not in dispute. This is more so that none of the accused persons before the trial Court claimed ownership of the Tricycle. Instead, they all denied owning it. The fact of the ownership of the Tricycle was therefore not in dispute, especially in view of the

evidence of PW6 whom the Tricycle actually belonged and to whom it was released on bond. The learned trial Judge therefore rightly found that facts not in dispute need no further proof. As such Exhibit Invoice 1, being the cash invoice evidencing payment of N670,000.00 by PW6 for purchase of the Tricycle, and Exhibit BR1, being the bond he signed when the Tricycle was released to him, were sufficient to establish the existence and ownership of the stolen Tricycle. Thus, the failure to tender the Tricycle in evidence was not fatal.
Based on all the above, I resolve all three issues in favour of the Respondent and against the Appellant.

Issue four – Whether the sentence of the Appellant to five years imprisonment (maximum) for the offence of theft contrary to Section 287 of the Penal Code is not heavy and/or excessive in the circumstances of the case.

While conceding that an appellate Court will not interfere with a sentence imposed by a trial Court unless it is satisfied that the trial Court has erred in principle, learned Counsel for the Appellant submits that a severe punishment can be reduced where the Court finds substantial evidence

of mitigating factors or circumstances in favour of the Appellant – Egunjobi V FRN (2002) FWLR (Pt. 105) 896, 937; Omokuwajo V FRN (2013) All FWLR (Pt. 684); Njoku V State (2013) All FWLR (Pt. 689) 1072, 1091; Adeleye V FRN (2016) All FWLR (Pt. 856) 312, 363.

Counsel submits that in the instant case, the Appellant was given the maximum sentence prescribed under Section 287 of the Penal Code Laws (supra), that is, five (5) years. He submits that the sentence imposed was excessive considering the circumstances of the case. He listed the mitigating factors to be as follows:
1. The Appellant is a first time offender and has no record of previous conviction.
2. The Appellant is remorseful and pleaded for leniency.
3. The sentence is the maximum sentence of 5 years prescribed for the offence of theft.
4. No option of fine was given.

Counsel submits that the Appellant and the 2nd accused person having been discharged of the offence of kidnapping of the missing teenager, he cannot again be punished for that offence. He contends that the maximum sentence imposed was influenced by the unsolved case of the missing teenager.

Counsel therefore urged the Court to resolve this issue in favour of the Appellant. He also urged the Court to allow the Appeal, set aside the judgment of the trial Court and discharge and acquit the Appellant.

In response, learned Counsel for the Respondent submits that the trial Court acted judicially and judiciously in awarding the maximum sentence of five years imprisonment as provided under Section 287 of the Penal Code Laws (supra). This provision of maximum sentence gives the learned trial Judge discretionary powers to reduce or award such punishment based on the evidence before it. She submits that there is no hard and fast rule to fetter the exercise of judicial discretion – Johnson V FRN (2016) LPELR-(?) 35-36, F-E (citation incomplete). Finally, Counsel urges the Court to dismiss the Appeal and affirm the judgment of the trial Court.

RESOLUTION OF ISSUE FOUR
It is the law that an appellate Court will not interfere with the sentence imposed by a trial Court unless it is shown to be manifestly excessive in the circumstances or absolutely wrong in principle. Thus, the factors an appellate Court will consider before altering a sentence are –

1) The gravity of the offence;
2) The prescribed punishment for the offence;
3) The prevalence of the particular class of crime in the locality; and
4) The circumstances of the offence to see if there are grounds for mitigating the punishment.
See Erujere V State (2017) LPELR-43403(CA) 30-31, D-B per Bada, JCA; Akpakpan V State (2017) LPELR-43484(CA) 15 per Adah, JCA; Omokuwajo V FRN (2013) LPELR-20784(SC) per Akaahs, JSC; Njoku V State (2013) All FWLR (Pt. 689) 1972, 1091.
The Appellant has asked this Court to interfere by reducing the sentence on the ground that it is heavy or excessive in view of the mitigating circumstances enumerated. Before then however, it is incumbent on the Appellant to satisfy the Court that the lower Court in passing sentence, failed to apply the right principles. For an appellate Court to interfere, the sentence must be manifestly excessive in view of the circumstances of the case or be wrong in principle.
It goes without saying that a trial Court has a discretion in matters of the sentence to be imposed upon conviction for a crime where the law does not provide for a mandatory sentence.

However, as with every form of discretion, it must be exercised judicially and judiciously. A trial Court should not impose a sentence in excess of that provided by law, although it can, in the exercise of its discretion, impose a lesser sentence than that provided by the law having regard to the facts and circumstances of the case before it. However, it is desirable that a trial Court should state in its judgment the factors that influenced its decision. It should be borne in mind that every exercise of discretion must be one geared towards the attainment of even-handed and fair-minded justice to the parties – Musa V State (2012) 3 NWLR (Pt. 1286) 59, 71; Nzegbune V State (2020) LPELR-49670(CA) 53-55, E-F; Omokuwajo V FRN (2013) All FWLR (Pt. 684); Egunjobi V FRN (2002) FWLR (Pt. 105) 896, 937. The Appellant therefore has a duty to establish the necessary conditions that would warrant interference.
I have examined the reasons given by the learned trial Judge at pages 111 to 112 of the Record for imposing the maximum sentence on the Appellant. It is evident that he took into account the fact that the driver/operator of the stolen Tricycle has not been found and

this heavily influenced his mind. Hear him –
“I have considered the plea for leniency made on behalf of the accused persons in the light of the submissions of learned DPP and I must say that this case is a very pathetic one because it involves the unsolved case of a missing teenager and the recovery of the Keke Napep he went missing driving in the possession of the convicts. The Keke Napep certainly did not fall from the heavens into their possession. The Court however can only act on charge and the evidence before it. If (sic) with this consideration that I sentence 1st accused person Kyari Babagana to a term of five years imprisonment. The 2nd accused person Babagana Grema is sentence to a term of five years imprisonment. The 3rd accused person Mustapha Ibrahim is sentence to fourteen (14) years imprisonment.”
However, this should not have been the case because the trial Court in the same proceedings clearly found that the Respondent failed to prove the offences of conspiracy and kidnapping against the 1st and 2nd accused persons, and there is no appeal against this finding. Thus, allowing the same issue to have influenced his

consideration in imposing the maximum sentence thereafter, is unwarranted.
On the other hand, the Respondent confirmed that the Appellant had no previous conviction and so was a first offender. Also, the trial Court did not indicate that the offence of theft was so rampant in the community to warrant the imposition of the maximum sentence in order to serve as a deterrent to others of like mind. See Adeleye V FRN (2016) All FWLR (Pt. 856) 312, 363; Zacheous V People of Lagos State (2015) All FWLR (Pt. 783) 1973, 2003. Consequently, given the overall circumstances presented to the trial Court, I agree with the Appellant that the maximum sentence of five (5) years under Section 287 of the Penal Code Laws (supra) imposed on the Appellant was indeed excessive.
In the light of all the above, I resolve this issue in favour of the Appellant. Given the facts and circumstances of the case which was proved against the Appellant, I hereby reduce the sentence to four (4) years imprisonment.
In the result, the Appeal succeeds in part.
Accordingly, I affirm the judgment of the High Court of Justice, Borno State in Charge number BOHC/MG/CR/103/CT10/2019

delivered on September 2, 2019 by Ali, J., convicting the Appellant for the offence of theft punishable under Section 287 of the Penal Code, Laws of Borno State.
However, I set aside the sentence of five (5) years imposed on the Appellant, and substitute it with a sentence of four (4) years.

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother SANKEY JCA. I agree with the detailed manner in which the issues articulated for determination were resolved.

I have nothing more to add. This appeal succeeds in part, in that the Appellant is still guilty of the offences charged. However, the sentence of a term of years reduced from Five (5) Years to Four (4) Years.

JAMES GAMBO ABUNDAGA, J.C.A.: I have read the draft of the judgment delivered by my learned brother, Jummai Hannatu Sankey, JCA.

I am in agreement with his Lordship that from the combination of all the evidence of the prosecution witnesses put together, the lower Court was on the right track in invoking the provision of Section 167(a) of the Evidence Act, 2011

in the circumstance. Thus, the circumstantial evidence before the trial Court irresistibly points to the guilt of the Appellant. My Lord, in his lead judgment dealt with this issue in its finest details. Nothing more I say can be of any value.

This appeal therefore lacks merit, and deserves a resounding dismissal. This I do, and in consequence, I affirm the judgment of the trial Court.
I also abide by my Lord’s reduction of the Appellant’s sentence from five years to four years.

Appearances:

M. Konto Esq., with him, A. M. Umar Esq. For Appellant(s)

Alkali Esq., Principal State Counsel with the Ministry of Justice, Borno State For Respondent(s)