BASSEY ASUQUO EKPO v. THE STATE(2002)

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BASSEY ASUQUO EKPO v. THE STATE

 (2002)LCN/1307(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 10th day of December, 2002

CA/C/124/99

 

Before Their Lordships

DENNIS ONYEJIFE EDOZIEJustice of The Court of Appeal of Nigeria

SIMEON OSUJI EKPEJustice of The Court of Appeal of Nigeria

SULE AREMU OLAGUNJUJustice of The Court of Appeal of Nigeria

Between

 

BASSEY ASUQUO EKPOAppellant(s)

 

 

AND

THE STATERespondent(s)

 

SULE AREMU OLAGUNJU, J.C.A. (Delivering the Leading Judgment):  In a joint trial with three others on a range of charges of conspiracy to commit a felony, theft and receiving stolen property the appellant was convicted of the offence of receiving stolen property from the 1st and 2nd accused who were Fergies International Ltd.’s Site Engineer and Project Manager, respectively, knowing the property to have been stolen punishable under Section 427 of the Criminal Code of Cross River State applicable at Akwa Ibom State.

At the trial, the prosecution’s case against the appellant was that between 22nd and 25th March, 1993, at Fergies International Ltd. Work Site, Uyo, he received from the 1st and 2nd accused 3 trips of chippings (15m3) valued at N8,500 knowing the same to have been stolen. He was found guilty of the offence and sentenced to 2 years imprisonment without option of fine by Edemekong, J., of the Uyo Judicial Division of Akwa Ibom State High Court. This appeal is against the conviction of the appellant for the offence. The only issue formulated for determination by the appellant which was adopted by the respondent relates to the appellant’s knowledge that the property were stolen and it reads:
“Whether the trial court was justified in convicting the appellant on the charge of receiving stolen property given the circumstances of the case.”

Arguing the matters arising from the issue, learned counsel for the appellant attacked the findings of fact by the learned trial Judge contending, firstly, that the inference of guilty knowledge of the offence by the appellant drawn by the court does not flow from the evidence before the court and is at variance with the manner of delivery of the stolen property by the seller and the receipt of the property by the buyer (the appellant) which the learned trial Judge framed as a yardstick for determining guilty knowledge by the appellant. To this end, the learned counsel argued that, contrary to the finding by the trial court, there are no contradictions between the extra-judicial statement of the appellant to the police, Exhibit 3, and his oral testimony before the court to justify the presumption made by the learned trial Judge on which he predicated the guilty knowledge by the appellant. Secondly, the learned counsel also attacked as erroneous the finding of the learned trial Judge that it is probable that the detailed account of what transpired at the site where the stolen property were delivered to the appellant given in his statement to the police was more probable. The learned counsel submitted that in criminal trials findings are made and inferences are drawn on evidence that established proof beyond reasonable doubt and not on balance of probabilities which belongs to the realm of civil matters.

Thirdly, the learned counsel also attacked as erroneous the finding by the learned trial Judge that failure of the appellant to demand from the seller (the 1st accused) (a) the authority of his company to dispose of the chippings and (b) a receipt for the sale of the chippings ‘amount (sic) to an attempt to conceal the truth’. He argued that the 1st accused as the site engineer of the complainant, the owner of the stolen property, being the agent of a disclosed principal could competently transfer title to a third party within his ostensible authority citing in support Mohammed v. State (2000) 12 NWLR (Pt. 682) 596.

Learned counsel for the respondent debunked the argument on behalf of the appellant contending that the critical question in this appeal is whether there was sufficient credible evidence before the trial court to prove the fact that the appellant ‘knew or had reason to believe’ that the chippings were stolen. He did not meet directly the question of whether the inference of guilty knowledge was properly drawn from the evidence as agitated by learned counsel for the appellant. Rather, he set his own argument that there was enough evidence to justify the finding that the appellant had the knowledge that the chippings he bought were stolen in the absence of any receipt or authenticating document for the purchase and in view of the relatively low price paid for the chippings and the mode of delivery of the goods.

On the question of asking for or being issued with a receipt for the purchase of the chippings, the learned counsel recalled the knowledge of the appellant that he knew that the chippings were the property of Fergies International Ltd. which was the employer of the seller (the 1st accused) and argued that failure of the appellant to ask for a receipt justifies the inference that the property were stolen having regard to the appellant’s wide experience in building business in the course of which he engaged frequently in the past in buying chippings for construction works. He contended that the presumption under Section 149(c) of the Evidence Act operates against the appellant who was expected to ensure that the common course of business was followed which includes verifying whether the seller (the 1st accused) had the authority of his employer to sell the chippings and getting as a precaution of a receipt otherwise an authenticating document for the purchase as ‘a sine qua non for proof of genuine title’ to the property bought.

The learned counsel disparaged as a misconception of the law reliance by the appellant on the decision in Mohammad v. State supra, as authority for the 1st accused to sell the property of Fergies International Ltd. as an agent of that company. The ratio of that decision, he argued, is that an agent can transfer good title to a purchaser only where the principal consented to possession over goods to his known or disclosed agent. In the present situation not only was there no proof that Fergies International Ltd. gave consent to the appellant to sell her property but also there is no evidence that the 1st accused is a known or disclosed agent of the company for purposes of the sale of the company’s property to the appellant.

The learned counsel also scoffed at the excuse given by the appellant for not asking for a receipt for the sale as due to the confidence he had in the 1st accused coupled with the fact that the tenets of their church kick against stealing. He contended that the appellant’s business of buying property belonging to Fergies International Ltd. was quite distinct, independent and different from a moral or religious relationship with the 1st accused and concluded that

“These were two separate and mutually exclusive relationships and the fact that the accused person was a member of Appellant’s church does not, in the normal course of business, displace the need for a receipt or sale – authenticating document in a transaction such as the present one, i.e. between Appellant and Fergies International, a corporate entity, even if represented by 1st accused person.”

As regards the low price paid for the chippings as a factor from which inference of guilty knowledge of the property being stolen can be inferred, learned counsel for the respondent contrasted the evidence of the appellant that ‘the going rate at the open market for chippings was between N1,500 and N1,550’ with the testimony of the Police Investigator, Sgt. Jacob Akpan, the 5PW., who deposed, at page 48 of the record, that ‘one trip of granite chippings varied at the time …; the cost was about N3,000.00.The contract price then varied too from company to company. Some companies in their quotation made N10,000, N15,000 or N8,000’. The learned counsel submitted that the testimony of the 5PW is more credible and is to be preferred to the evidence of the appellant whose testimony in material part is contradictory. Going by the evidence of the 5PW., he further submitted, the chippings were sold to the appellant at half the going price. He contended that ‘that fact alone ought to have placed the appellant on notice that the chippings were stolen’ and submitted that the fact that he still bought it makes him guilty of the charge of receiving stolen goods under Section 427 of the Criminal Code.

The learned counsel conceded that as agitated on behalf of the appellant that the trial court did not hinge the conviction of the appellant on this particular ground he, nonetheless, contended that this court can uphold a conviction on grounds other than the one on which the trial court convicted the accused person provided that the evidence in support of the ground is available in the record and could have been used by the trial court in support of the conviction. He relied on the decision in Yongo v. Commissioner of Police (1990) 5 NWLR (Pt. 148) 103 114. He urged this court to uphold the appellant’s conviction and to disregard the appellant’s submission that the fact that the chippings were delivered to the appellant in broad daylight negatives guilt.

With regard to the mode of delivery of the goods as a factor from which knowledge that the property are stolen can be inferred, the learned counsel referred to the appellant’s extra-judicial statement to the Police Exhibit 3, that ‘when I was going away with the granite Mr. Chukwumah was in the site therefore the security guards did not challenge me’. He further referred to the testimonies of the 2PW and 3PW, the company’s security men on duty ‘at all times and dates material to (the) case’, that they initially resisted the removal of the stolen items but were threatened and intimidated into submission by the 1st and 2nd accused. He contended that the presence of the 1st accused on the company’s premises provided the appellant cover to get out with the stolen property unchallenged by the security men who has been cowed by the 2 accused persons and, therefore, negative the emphasis placed by the appellant on the stolen goods being removed from the site in the daylight as an element of innocence of the fact that the property were stolen. That sequence of development, he submitted, justifies the conclusion by the learned trial Judge that “the fact that the items were removed or dealt with in broad daylight does not also seem to diminish the character of the act as an offence against the state’.

As the attack of the judgment of the court below turns on the findings of fact by the learned trial Judge let me begin with the recapitulation of the general principle that ordinarily an appellate court will not interfere with the decision of the trial court where so much turns on the credibility or reliability of witnesses. This is so because ascription of probative value to such evidence is the primary function of the trial court which saw, heard and assessed the witnesses. The appellate court will also not interfere in order to substitute its view for the view of the trial court when that court has properly evaluated the evidence and made findings of fact: see Awoyale v. Ogunbiyi (1986) 2 NWLR (Pt. 24) 626; Agbabiaka v. Saibu (1998) 10 NWLR (Pt. 571) 534; (1998) 7 SCNJ 305, 318; Obodo v. Ogba (1987) 2 NWLR (Pt. 54) 1; Ogbechie v. Onochie (No. 1) (1988) 1 NWLR (Pt. 70) 370, 378. But as the Supreme Court held in Udofia v. State (1984) 15 NSCC 836, 843, an appellate court will interfere with the findings of fact by the trial court:
“(i) Where no finding was made on a relevant or material issue;
(ii) Where there is no evidence to support the particular finding complained of;
(iii) Where the finding is perverse and not the result of the proper exercise of the Judges’ judicial discretion to believe or disbelieve witnesses;
(iv) Where the issue is not the evaluation of evidence as much as the proper inference, the deduction to be drawn from accepted facts;
(v) Where there has been a misapprehension by the trial court as to what the antecedent presumptions were and where the onus of proof lay …”
See also Shell B.P. Petroleum Development Co. Ltd. v. Pere Cole (1978) 3 S.C. 183, 194; Kwajafa v. Bank of the North Ltd. (1999) 1 NWLR (Pt. 587) 423, 435 and Ndili v. Akinsumade (2000) 8 NWLR (Pt. 668) 293, 336-337.

The nature of the complaints against the judgment of the court below relates to items (ii) and (iv) of the errors enumerated in Udofia v. The State supra, encompassing lack of evidence to support the finding of guilty knowledge of the crime by the appellant leading to the drawing of a wrong inference from accepted facts. The appellant’s contention is based primarily on the finding by the learned trial Judge that the extra-judicial statement made to the Police by the appellant, Exhibit 3, is inconsistent with his evidence on oath leading to the conclusion by the learned trial Judge that the appellant was not being truthful about his knowledge that the granite chippings were stolen and in so doing applied a wrong standard of proof in a criminal matter, i.e. proof of the knowledge of the crime of stealing based on the balance of probabilities instead of proof beyond reasonable doubt.

Learned counsel for the respondent has put the first question of the appellant’s contention to flight by demonstrating from the self-same passages from the record relied upon by the learned appellant’s counsel that there are contradictions between the appellant’s statement to the Police and his evidence on oath. A juxtaposition of the passages brings out the contradictions in stark relief. In his statement to the Police, Exhibit 3, reproduced at pages 120-121, lines 5-11 of the record, the appellant wrote:

” … I hired a tipper and took it (to) the company’s site where the granite was loaded. I loaded three trips of granite and drove them out in (sic) three different occasions. When I was going away with the granite, Mr. Chukwumah was in the site therefore security guard did not challenged (sic) me. I did not give any money to the security men on duty.”

In his evidence on oath, at page 65, lines 1-5 of the record, the appellant deposed as follows:
“I went to the company site to pick the chippings. I sent my truck to pick it up. I sent the driver. I did not go with the truck. My driver did not tell me he was confronted by anybody at the gate. My driver brought the chippings between 10.30 am and 12 noon.”

On pages 64 and 120 of the record, both the appellant’s evidence on oath and his statement to the Police were made in English Language. Whereas in his statement to the Police, the appellant said that he hired a tipper and personally took it to the company’s site to collect the granite running three trips and that when he was going away Mr. Chukwumah, the 1st accused, was on the site, in his evidence on oath he deposed that he sent his driver with his truck to pick up the granite stressing emphatically that he sent his truck and driver whom he did not accompany and the driver did not tell him that he was confronted at the gate. The glaring contradictions between the appellant’s extra-judicial statement to the Police and his evidence on oath gives the lie to the submission by learned counsel for the appellant that the accounts of the delivery of the chippings given by the appellant are mutually consistent thus rendering barren his effusion of quandary that “it becomes difficult to appreciate the inconsistency referred to by the trial court in respect of ‘the manner of receipt or delivery of the items to him’, in such a generic terms without specifics”. But much more fundamental the contradictions go into the root of the argument of learned counsel for the appellant that the inference of guilty knowledge of the offence by the appellant drawn by the trial court does not flow from the evidence before the court.

The second aspect of the objection by the learned counsel that the learned trial Judge employed the standard of proof in civil matters to determine criminal liability originates from the conclusion reached by the learned trial Judge on other matters he considered prefacing his conclusion with his findings that the two statements made by the appellant are mutually inconsistent. The objectionable passage reads:

“It is more probable that the detailed account of what transpired at the site given by him in his statement to the Police was the truth. In the circumstance, it would be safe to presume that the third accused is not being truthful as to his knowledge that the goods were stolen even in his evidence in court. I thus infer that his evidence that he did not seek to have the authority from the 1st accused, that he did not demand a receipt in spite of his knowledge that 1st accused was working in Fergies International Ltd. and that the company was not abandoning the site amount to an attempt to conceal the truth.”

The crux of the objection by learned counsel for the appellant is the opening sentence of that passage about the probability of the appellant’s statement to the police, Exhibit 3, being the correct version of the two conflicting accounts given by him about what took place when he was taking delivery of the goods at the company’s site. It is upon that finding that the learned counsel founded his argument that the learned trial Judge based his conviction of the appellant on the standard of proof in civil matters, i.e. the balance of probabilities.
With respect, the argument of the learned counsel is a misconception of the law. There is no doubt that the learned trial Judge was in error when he embarked upon making a choice between two statements made by an accused person which are contradictory. But it will be stretching the matter too far to say that by so doing the learned trial Judge has adopted in a criminal trial a standard of proof in civil matters by the mere use of the phrase ‘it is more probable’ in evaluating the evidence before him. It seems to me that the use of that phrase in the con of the sentence in which it occurred is not more than making a choice between the two contradictory statements as far as credibility of either of the statements is concerned which is the gravamen of the error of the learned trial Judge.

This is because when an accused person makes two statements which are contradictory and the former of the two statements is not a confessional statement of the crime being retracted by the latter neither of the statements is reliable; see Jimoh Ishola (a.k.a. ‘Ejigbadero’) v. The State (1977) 2 FCA 156; Yongo v. Commissioner of Police (1990) 5 NWLR (Pt. 148) 103, 116; Oladejo v. State (1987) 3 NWLR (Pt. 61) 419, 427; and Umani v. State (1988) 1 NWLR (Pt. 70) 274; (1988) 19 NSCC (Pt. 1) 137, 141-142. Applying that principle by rejecting both the appellant’s statement to the Police, Exhibit 3, and his testimony on oath which are unreliable ‘it is the duty of the appeal court to deal with the case on the remaining legally admitted evidence’: see Ayanwale v. Atanda (1988) 1 NWLR (Pt. 68) 22; (1988) 19 NSCC (Pt. 1) 1, 5 & 11; and Yongo v. Commissioner of Police supra, at page 114.

I must examine for the purpose of assimilation of the principles on evaluation of evidence how far can the conviction of the appellant be sustained by the body of admissible evidence extant after the appellant’s written statement, exhibit 3, and his oral testimony on oath have been expunged from the record. The learned trial Judge examined the evidence and inferred guilty knowledge that the appellant knew or had reason to believe that the granite chippings were stolen by the seller, the 1st accused, from the fact that the property belonged to the employer of the accused, Fergies International Ltd., to the appellant’s knowledge yet the appellant did not ask for the 1st accused’s authority to sell the chippings or for a receipt for the purchase. To these incriminating factors giving rise to the fact that the appellant knew that the chippings were stolen goods learned counsel for the respondent urged this court to consider the fact that the appellant claimed to have bought the chippings at almost half of the going price of N3,000 per lorry-load vis-a-vis the sum of N1,500 which the appellant claimed that he paid for a lorry-load of the chippings. That fact being a factor which the learned trial Judge did not consider in reaching the decision to convict the appellant the learned counsel submitted that being evidence before the trial court by the 5PW who was not contradicted or cross-examined it was open to this court to take it into consideration on the precedent of Yongo v. Commissioner of Police, supra, at page 114.

Considering those factors, the argument of learned counsel for the appellant that the 1st accused’s authority to sell the chippings cannot be called into question by virtue of his standing as an agent of a disclosed principal, Fergies International Ltd., has been deflated by learned counsel for the respondent. Not only is the company which is the complainant of the criminal act not shown to have given her consent to the sale of her property it is also inconceivable that the company could appoint the appellant an agent to sell her property and then posed as a complainant for the criminal trial. The contrariety makes the principles in Mohammed v. The State, supra, relied upon by the appellant to be inapplicable. Similarly, buying the chippings at half the going price ought to put the appellant on his guard that the source of the goods is far from genuine.

The decision of this court in Okoroji v. The State (2002) 5 NWLR (Pt. 759) 21; (2001) FWLR (Pt. 77) 871, 890, identified the facts from which inference of knowledge that a property is stolen can be drawn as including (a) the manner of receipt or delivery of the goods allegedly stolen, (b) the time of delivery and (c) the price paid for the property or goods. In this particular case, the manner of receipt and delivery of the chippings are open to suspicion when the goods were sold by the employee of the company to the purchaser at half the going price without the evidence of the actual price paid documented and only revealed by the ipse dixit of the buyer. The selling and delivery environment. The sale taking place at the work site of the company was shrouded in secrecy because of lack of the knowledge of the transactions outside the world of the seller and the purchaser. To crown it all evidence that the security men of the company who were keeping watch over the chippings had been cowed into total subservience by the seller acting in concert with a collaborator who was also a top official of the company and the 2nd accused at the trial not only ensured that the watchdog of the company could not lift a finger but also lent a crescendo to the aura of silence that beclouded the sale and delivery.

Conducting business transactions of a limited liability company in such a hole-and-corner way justifies the inference that both the seller and buyer – the 1st accused and the appellant – are ad idem acting out a script that is well orchestrated and understood by the duo and their other collaborator in all the esoteric manifestations.
Against this factual backdrop, the conclusion is inescapable that the appellant is a mastermind of the scheme to defraud the company and a linch-pin in the theft of the granite chippings. Therefore, there is overwhelming evidence from which inference of guilty knowledge that the appellant knew that the chippings were stolen by the seller, the 1st accused, can be drawn. The inference is compelling and the learned trial Judge has rightly drawn the inference.

Therefore, notwithstanding the fact that the learned trial Judge erred in his appraisal of making a choice between the appellant’s statement to the Police, Exhibit 3, and the appellant’s evidence on oath which is wrong in law after expunging the two items of evidence there is still overwhelming evidence to support the finding that the appellant knew that the three trips of chippings he bought from the 1st accused, Chukwumah Ezebogu, in collaboration with the 2nd accused, Gabriel Kwale, were stolen. In this regard, let me say that it is not every slip or error that will result in the judgment on appeal being upset. For an error to be fatal it must affect the judgment in a way that is crucial to the party complaining, in this regard, to the appellant: see Pan Atlantic Shipping & Transport Agencies Ltd. v. Rhein Mass U.N.D. etc (1997) 3 SCNJ 88, 95-96; and Uzochukwu v. Eri (1997) 7 NWLR (Pt. 514) 535; (1997) 7 SCNJ 238, 252. I am satisfied that the error by the learned trial Judge did not affect his conclusion about the appellant’s guilt which is impeccable.

Finally, the lone issue is resolved against the appellant, that is to say, everything considered, the learned trial Jugde is justified in convicting the appellant for receiving stolen property knowing same to have been stolen. Accordingly, the appeal fails and it is dismissed.

DENNIS ONYEJIFE EDOZIE, J.C.A.: In a joint trial of the appellant and three others in an information containing several counts, the appellant was in one count charged with, convicted and sentenced to two years imprisonment for the offence of receiving stolen property from the 1st and 2nd accused persons knowing the property to have been stolen, an offence punishable under Section 427 of the Criminal Code of Cross River State applicable in Akwa Ibom State.

His appeal to this court is against his conviction and it turns on whether or not the court below was justified in holding that he had the knowledge that the property in question was stolen. I agree with the lead judgment of my learned bother Olagunju, JCA that although the learned trial Judge was in error in accepting one version of the two contradictory statements of the appellant which are inadmissible there was overwhelming credible evidence on record from which guilty knowledge of the appellant could be inferred. In assessing the judgment of a trial court, what an appellate court ought to consider is whether the decision of the Judge is right and not whether his reasons are. If the decision is right and only the reasons are wrong, an appellate court will not interfere with the decision: see Attorney-General of Bendel State v. Attorney-General of the Federation & Ors. (1981) 10 SC 1 at pp. 62-63; (1982) 3 NCLR 1; Abaye v. Ikem Ofili & Anor (1986) 1 NWLR (Pt. 15) 134, (1986) 1 SC 231 at 321; Ukejianya v. Uchendu (1950) 13 WACA 45.

For these and the fuller reasons given in the lead judgment which I adopt as mine, I, too, dismiss the appeal and affirm the verdict of the court below.

SIMEON OSUJI EKPE, J.C.A.: I agree.

 

Appearances

Ekpenyong Ntekim, Esq.For Appellant

 

AND

Paul Usoro, Esq.For Respondent

 

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