GREMA v. STATE (2020)

GREMA v. STATE

(2020)LCN/14750(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Tuesday, November 10, 2020

CA/G/522c/2019

RATIO

CRIMINAL LAW: INGREDIENTS FOR THE OFFENCE OF THEFT

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; and
6. That he did so with intent to cause wrongful gain to himself or wrongful loss to that person. PER SANKEY, J.C.A.
CRIMINAL LAW: BURDEN AND STANDARD OF PROOF IN A CHARGE OF THEFT

Now 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 SANKEY, J.C.A.

EVIDENCE: NATURE OF CIRCUMSTANTIAL EVIDENCE

It is the law that circumstantial evidence is one of the legitimate means of proving offences in a Court of law. It is in the same company as direct evidence, and the situation 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 presented before it, it must satisfy itself that such evidence is cogent, compelling and points irresistibly to the fact that the accused person committed the offence.
Thus, circumstantial evidence is nothing more than evidence that irresistibly flows from established facts. It is as good as, and sometimes even better than, other species of evidence, to wit, eyewitness evidence and direct evidence. What is meant by circumstantial evidence is that there are a number of circumstances which were accepted, 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 Supreme Court decision of Vivian Odogwu V State (2013) LPELR-42802 (SC) 23, B-D, Ngwuta, JSC held as 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 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 the even more 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 circumstantial evidence thus:
“Under our criminal jurisprudence, circumstantial evidence is defined as evidence of surrounding circumstances which by undesigned 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 on this the decisions in 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 place of circumstantial evidence in 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 it irresistibly points to his guilt. PER SANKEY, J.C.A.

APPEAL: CIRCUMSTANCES AN APPELLATE COURT WILL INTERFERE WITH THE SENTENCE IMPOSED BY THE TRIAL COURT

It is the law that ordinarily 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-20184(SC) per Akaahs, JSC; Njoku V State (2013) All FWLR (Pt. 689) 1972, 1091. PER 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

BABAGANA GREMA 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 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/521C/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 2nd accused person, while the Appellants in Appeal No. CA/G/521C/2019 and Appeal No. CA/G/520/2019 were the 1st and 3rd accused persons respectively.

Succinctly, the facts of the case are as follows: On 17-06-18, one Hussaini Idrisa aged 19 years, went out with his Tricycle, commonly referred to as “Keke Napep”, to operate for commercial purposes around Maiduguri town, but and then, 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 elder brother. Upon being accosted by the Police, Mohammed stated that it was his mother, PW1 and brother (3rd accused) who bought it for him from a Customs Officer (1st accused). Police investigations led to the arrest of the Appellant and four other suspects, namely: Kyari Babagana, Mustapha Ibrahim, Dauda Musa and Sayinna Modu. All five suspects were then charged to the High Court of Borno State 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 Bornu State, 1994.

Kyari Babagana and the Appellant (1st and 2nd accused persons) were together charged with three counts of conspiracy, kidnapping and theft, while Mustapha Ibrahim (3rd accused person) was charged for dishonestly receiving stolen property; and Dauda Musa and Sayinna Modu (4th and 5th accused persons) were charged for forgery. They all pleaded not guilty. Therefore, the Respondent adduced evidence in proof of the five (5) count charge against the accused persons

through eight (8) witnesses and ten (10) Exhibits. The Appellant and the other four 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 Kyari Babagana 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 (5) 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 vide his Notice of Appeal wherein he complained on ten (10) grounds.

At the hearing of the Appeal on October 14, 2020, S.M. Gimba Esq., learned Counsel for the Appellant, adopted the submissions in the Appellant’s Brief of argument filed on 10-06-20 and settled by him, 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, H. Y. Gana, Esq., DDCL with the 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 15-09-20, and settled by B. Yusuf Esq., Assistant Director of Civil Litigation (ADCL), 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 issues for determination:
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. (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 adopted these issues for determination in its Brief of argument. The Appeal shall therefore be determined on the issues arising from the Appeal as agreed to by both Counsel. However, they shall be addressed in the following order: issues 1, 2 and 3 together and issue 4 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.

Under these issues, 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 presented by the Respondent did not prove that the Appellant moved the Tricycle, otherwise referred to as “Keke Napep” out of the possession of its operator, Hussaini Idrisa. Therefore, that the finding of the trial Court to the effect that the Tricycle was removed from the possession of Hussaini Idrisa, as well as the finding that it was so removed without the consent of PW6, the actual 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 also 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 listed in the precis of evidence filed before the trial Court by the Respondent. Counsel therefore submits that the non-production of the Tricycle led to a failure to establish the case; or withholding 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, Exhibit Invoice-1, contains different Engine and Chassis numbers from those stated in the precis of evidence filed by the Respondent before the trial, the Tricycle itself should have been produced. Reliance is placed on the decisions in 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.

While conceding that where direct evidence to establish the guilt of an accused person is unavailable, resort may be made 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, Counsel submits that the

essential ingredients for the invocation of this provision were not established against the Appellant and the 1st accused person before they were convicted for the 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. There was also 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. He 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 that Mohammed’s mother and brother bought the Tricycle from the 1st accused person

was perverse and runs counter to the evidence before the Court.

In response to these submissions, learned Counsel for the Respondent argues 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 1st accused person and the Appellant. 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, DW3, DW4 and DW5, did not give any evidence to discredit this evidence on the issue of possession. He

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 and gave to his nephew and the son of PW2, Hussaini Idrisa (also referred to as Hussaini Magaji) and who is still missing, to operate for commercial purposes. It was this same Tricycle that was later found in the possession of Mohammed Ibrahim, whose mother, PW1, bought from the 1st accused person and the Appellant. Thus, the Appellant in conjunction with the 1st accused person deprived the PW6 from the lawful possession of his Tricycle without his consent (pages 36-37 of the Record).

Counsel also refers to the evidence adduced through the PW1, Exhibit Invoice-1 and Exhibit Bond-1, in proof of the fact that PW1 paid the sum of N170, 000.00 to the 1st accused person and the Appellant, which money they shared amongst themselves, including the 3rd accused person. 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 further submits that the Respondent relied on circumstantial evidence as opposed to direct 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 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; and
6. That he did so with intent to cause wrongful gain to himself or wrongful loss to that person.
Now 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, 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, in a bid to clear himself of the charge, testified but called no other witness and tendered no exhibit, the learned trial Judge found that the Respondent indeed discharged the onus of proof placed on it to the standard required by law.

As has been submitted by the Respondent and obliquely referred to by the Appellant, the evidence on Record discloses that there was no direct or eyewitness evidence establishing that the Appellant

stole the Tricycle from Hussaini Idrisa, its operator, who drove it on the date in question and who got missing along with the Tricycle and sadly, is still missing till date even though the Tricycle itself was subsequently recovered. However, can it be said that there was cogent and compelling circumstantial evidence which the trial Court relied upon to convict the Appellant as well as the 1st accused person of theft of the Tricycle? This is the issue that falls for the consideration of the Court under these three issues; and therefore, whether the trial Court came to a right conclusion and decision in convicting the Appellant of theft.

offence.
Thus, circumstantial evidence is nothing more than evidence that irresistibly flows from established facts. It is as good as, and sometimes even better than, other species of evidence, to wit, eyewitness evidence and direct evidence. What is meant by circumstantial evidence is that there are a number of circumstances which were accepted, 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 Supreme Court decision of Vivian Odogwu V State (2013) LPELR-42802 (SC) 23, B-D, Ngwuta, JSC held as 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 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 the even more 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 circumstantial evidence thus:
“Under our criminal jurisprudence, circumstantial evidence is defined as evidence of surrounding circumstances which by undesigned 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 on this the decisions in 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 place of circumstantial evidence in 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 it 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 the 2nd accused person) and the 1st accused person before the trial

Court approached the PW1 with a story that her son, the 3rd accused person, had bought a Tricycle from the 1st accused person for the sum of N550, 000.00, had made a part-payment of N350, 000.00 and wanted her (his mother) to pay the balance of N200, 000.00 on his behalf. Since PW1 is basically the star-witness, permit me to reproduce the relevant portions of her evidence at pages 27 to 28 of the printed 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. The[n] later two (2) weeks precisely the motorcycle was impounded and my son was detained. He was accused of killing the rider of the tricycle.” (Emphasis supplied)

Now the 3rd accused person charged for dishonestly receiving stolen property, along with the Appellant and the 1st accused person who were charged for theft of the Tricycle, testified in his own defence as DW3. In his evidence, he substantiated relevant portions of the evidence of his mother, PW1. Again his evidence is crucial to the issues at stake. I will therefore crave your patience to reproduce a substantial portion of his evidence contained at pages 71 to 72 of the Record as follows:
“The 1st accused used to give me items for auction to sell… 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.” (Emphasis supplied)

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 for the sum of N670, 000.00. He then gave it to Hussaini Magaji also referred to as Hussaini Idrisa, the son of his elder brother (PW2), to drive for commercial purposes. From the evidence of both PW6 and that of PW2, Hussaini’s father, Hussaini 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 (3rd accused person’s brother and PW1’s son), Hussaini Idrisa (the operator of the Tricycle) is still missing.

From the evidence related to the lower Court by both PW1 and DW3 (3rd accused person – the purchasers of the Tricycle), it was the 1st accused person and the Appellant (2nd accused person) who offered them the Tricycle for sale. The Appellant in his defence as DW2 tried to extricate himself by pointing to the 1st and 3rd accused persons as those involved in making the deal. However, it is interesting that when they finally persuaded PW1, the 3rd accused person’s mother, to pay up the sum of N170, 000.00 for the purchase of the Tricycle from them, it was the Appellant/2nd accused person who took the initiative to promptly share the money amongst the three of them. For ease of reference, this is the viva voce evidence of the Appellant as DW2 as contained at pages 75-76 of the Record:
“PW1 said that she is only involving herself because of the 1st accused person. She told the brother

of the 3rd accused person to give us part of the money which will be completed if we bring the receipt. The 3rd accused person brother gave us N100, 000.00. I took N20, 000.00 and gave it to the 1st accused and kept N20, 000.00 and gave the 3rd accused N60, 000.00. We then left later PW1 started asking for the receipt of the machine from the 1st accused person. There was also N70, 000.00 balance with her. We look for 3rd accused person but could not get him… Then the 1st accused person gave me money N3, 000.00 to go and make a receipt since the original was said to be lost. I went and make a receipt at Gwange with one Alhaji Danbaba… We gave the receipt to elder brother of 3rd accused person. He collected it and we went to Zenith Bank Plc. He gave us N70, 000.00 (sic) look for Mustapha Ibrahim the 3rd accused and we did not find him. I and 1st accused shared the money.” (Emphasis supplied)

The 1st accused person in his own evidence as DW1, corroborated the Appellant’s evidence in material particulars contained at pages 72-73 of the Record thus:
“…So the 2nd accused said let’s go to your mother. We went to meet

his mother PW1 the mother of the 3rd accused person… She said the machine was too expensive. I reduced N30, 000.00. She called her son, the elder brother to 3rd accused and told him to give us the money. The next day I and 2nd accused and Mustapha Ibrahim went and met Ibrahim at the Post Office. Then Mohammed gave us N100, 000.00 through 3rd accused. Babagana Grema 2nd accused collected the money. He counted it then Mohammed Ibrahim left. Me, 2nd and 3rd accused we left behind. 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, we left…
We did not hear from 3rd accused again. Two weeks later, his mother start calling us to bring the receipt… He later said the receipt was missing… Babagana 2nd accused person went and looked for person to make a receipt and I gave him N3, 000.00 and he went and made the receipt… We called Mohammed Ibrahim elder brother to 3rd accused and met him at Damboa Road. We met him and the 2nd accused and gave him the corrected receipt and he collected it. We followed him to Zenith Bank GRA Branch and he

withdraw N70, 000.00 and gave the 2nd accused. He left, we left.” (Emphasis supplied)

Thus, from the evidence reproduced above, it is evident that the Appellant in conjunction with the 1st accused person collected the total sum of N170, 000.00 in two tranches from the PW1 as payment for the purchase of the stolen Tricycle belonging to PW6 based on false premises, procured a fake receipt in which they muddled up the Engine and Chassis numbers of the Tricycle, which they gave to the PW1 on her insistence, and which documents were subsequently admitted in evidence. Thus, the very receipt which they seek to impugn, emanated from them and no other.

By these pieces of evidence therefore, the prosecution established and the learned trial Judge rightly found that it was the 1st accused person, in conjunction with the Appellant (2nd accused person), who sold the stolen Tricycle to the 3rd accused person; and that the PW1, at the express request of her son (3rd accused person/DW3), innocently paid the sum of N170, 000.00 to both the 1st accused person and the Appellant believing that it was an authentic and genuine transaction. This is more so that at

the insistent demands of the PW1, the Appellant actually procured a receipt/invoice for the Tricycle which they both gave her (PW1) in order to be paid the balance of N70, 000.00, which they again shared.

Further to this, from the evidence of PW1, after paying for the Tricycle, she gave it to an operator/rider, but it was subsequently impounded from Mohammed Ibrahim, her son and elder brother to 3rd accused person through whom she had paid them the purchase price of N170, 000.00. Indeed, two of the Police officers involved in the investigations into the report of the stolen Tricycle and the missing youth, Hussaini Idrisa, i.e. PW7 and PW8, disclosed that the Tricycle was actually recovered from Mohammed Ibrahim, son of PW1 and elder brother of DW3, to whom the Tricycle had been sold. For the sake of emphasis, from the viva voce evidence of the 1st accused person (as DW1) and the Appellant (as DW2), it was Mohammed Ibrahim on the instruction of PW1, who actually paid them the initial 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. Thus, the contention of learned Counsel for the Appellant that the failure of the Respondent to present Mohammed Ibrahim as a witness in Court, being the person from whom the Tricycle was recovered, is not worth the paper it is written on as his possession of the Tricycle was well explained by his mother, the PW1, and more significantly, by the 1st accused person and the Appellant themselves in Court. They put him in possession.

From the evidence of both the 1st accused person/DW1 and the Appellant/DW2, they confirm the evidence of PW1 that they both approached 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 on her instruction, Mohammed Ibrahim, the 3rd accused person’s brother, paid them for the purchase of the Tricycle. They thereafter, promptly shared the money amongst themselves, including the 3rd accused, who was also convicted in the same proceedings for dishonestly receiving stolen property from the 1st accused person and the

Appellant. Again, the Appellant (DW2) himself described how after Mohammed Ibrahim paid them the balance of N70, 000.00, he shared it between him and the 1st accused person. 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 true to say that there was no direct evidence to show that the Appellant and 1st accused person stole the Tricycle from Hussaini Idrisa, its missing rider, the fact of their being in possession of the Tricycle within a relatively short period after it was stolen, the subsequent sale of the Tricycle by them 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). For ease of reference, the provision states –
“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.
In this case, nowhere in their evidence before the trial Court did they satisfactorily account for their possession of the stolen Tricycle. Therefore, I am of the considered view that the learned trial Judge cannot be faulted in his invocation of this legal presumption based on the evidence presented by both parties before the Court.

In respect of the contention that the failure to call Mohammed Ibrahim, in whose possession the Tricycle was recovered, as a witness was fatal to the prosecution’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 the 1st accused person for the payment of the Tricycle; and who gave her son, Mohammed Ibrahim, the Tricycle, gave explicit evidence of how she paid them the initial sum of N100, 000.00 and the subsequent balance of N70, 000.00 through her son Mohammed Ibrahim. Thereafter, he (Mohammed Ibrahim) took possession of the Tricycle after which it was impounded from him.

The Appellant has again sought to question or punch holes in the findings of the trial Court and its reliance on the invoice/receipt for the Tricycle presented by the prosecution, which he contends is inconsistent with the Engine and Chassis numbers stated in the precis of evidence. To my mind, this is the Appellant desperately scrambling after the horse has bolted from the stable. I have extensively addressed this issue earlier in the body of this Judgment. Therefore, no useful purpose will be served in repeating it here. Suffice it to say that the Appellant and 1st accused (as DW2 and DW1) gave detailed evidence about

how they bent themselves out of shape (so to speak) in their effort to procure a false receipt to give to the PW1, who had insisted on one, upon paying DW4 and DW5 (dealers in the sale of Tricycles) the sum of N3000.00. If for any reason the Engine and Chassis numbers on the receipt/invoice produced and presented to PW1 by the Appellant turned out to be incorrect, the blame must be squarely placed at the Appellant’s doorstep, and not that of the Respondent. The Appellant should not hope to benefit from his own wrong. In addition to this, the invoice/receipt was duly tendered and admitted in evidence, after an objection. The precis of evidence filed by the prosecution before trial, which is referred to by the Appellant, is not evidence and therefore does not bind the trial Court.

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 never in issue, especially in view of the evidence of PW6, its real owner, to whom the Tricycle 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 the sum 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.

Consequently, 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), i.e. five (5) years imprisonment. 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 contends that the Appellant and the 1st 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 for a maximum sentence gives the learned trial Judge the discretionary power to either reduce or to award such punishment based on the evidence before it. He 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 ordinarily 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-20184(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 of the trial Court on the ground that it is heavy or excessive in view of the circumstances he has enumerated. Before then however, it is incumbent on the Appellant to satisfy the Court that the lower Court, in passing the sentence, failed to apply the right principles or that the sentence is manifestly excessive in view of the circumstances of the case.
As submitted by the Respondent, it goes without saying that a trial Court has a discretion in the

matter of the sentence to be imposed on a convict 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. It is trite that 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 also desirable that a trial Court should state in its Judgment the factors that influence 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. The Appellant therefore has a duty to establish the necessary conditions that would warrant interference – 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.
In the light of the principles of law with regard to sentencing and the factors presented by the

Appellant in support of his quest for a reduced sentence, I have examined the reasons given by the learned trial Judge at pages 111 to 112 of the printed Record for imposing the maximum sentence on the Appellant. It is evident that he took into account the fact that the driver 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 sentenced to a term of five years imprisonment. The 3rd accused person Mustapha Ibrahim is sentenced to fourteen (14) years imprisonment.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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However, this should not have been the case because the trial Court clearly found that the Respondent failed to prove the offences of conspiracy and kidnapping against the 1st and 2nd accused persons. Thus, allowing the same issue to have influenced his consideration in imposing the maximum sentence thereafter, is both injudicious and 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 before the trial Court by both parties, 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, I hereby reduce the five (5) year sentence imposed on the Appellant 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 under Section 287 of the Penal Code Laws of Borno State, 1994.
However, I set aside the sentence of five (5) years imprisonment imposed on the Appellant, and substitute it with a sentence of four (4) years imprisonment.

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I read before now, the judgment just delivered by my learned brother SANKEY JCA. I am in total agreement with his reasoning and final conclusions.

I also hold that the appeal succeeds in part. The judgment of the High Court of Borno State delivered on 2nd September 2019 by Ali J. is affirmed. However, the sentence of Five (5) Years imprisonment is reduced to Four (4) years as ordered in the lead judgment.

JAMES GAMBO ABUNDAGA, J.C.A.: I have read the draft of the Judgment delivered by my learned brother, Jummai Hannatu Sankey, JCA. My Lord was painstaking in the consideration and resolution of the contending issues in the appeal. I am therefore in agreement that the appeal against conviction lacks merit and deservedly dismissed.

However, the appeal against sentence is meritorious and therefore allowed, and consequently the reduction of the sentence of 5 years imprisonment to four years imprisonment is adequate on a calm consideration of the mitigating factors.

Appearances:

M. Gimba Esq. For Appellant(s)

Y. Gana Esq., DDCL, Ministry of Justice, Borno State. For Respondent(s)