IBRAHIM v. STATE (2020)

IBRAHIM v. STATE

(2020)LCN/14741(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Tuesday, November 10, 2020

CA/G/520c/2019

RATIO

CRIMINAL LAW: MEANING OF THE OFFENCE OF DISHONESTLY RECEIVING STOLEN PROPERTY

The offence of dishonestly receiving stolen property is defined under Section 316 of the Penal Code, Laws of Borno State (supra) and it is punishable under Section 317 as follows:
“317. Whoever dishonestly receives or retains any stolen property knowing or having reason to believe same to be stolen property shall be punished with imprisonment for a term which may extend to fourteen years or with a fine or with both.” PER SANKEY, J.C.A.
CRIMINAL LAW: REQUIREMENT TO PROVE THE OFFENCE OF DISHONESTLY RECEIVING STOLEN PROPERTY

Thus, as rightly submitted by both learned Counsel for the parties, in order to secure a conviction for the offence of dishonestly receiving stolen property, the prosecution must prove the following ingredients of the offence –
1. The property must have been received;
2. It must have been previously stolen;
3. The person receiving the stolen property must know it was stolen; and
4. The receiver must intend to deprive the owner of his or her property.
In addition, the term “stolen property” under Section 286 of the Penal Code consists of –
a) Property under Section 286 (supra);
b) Property acquired through extortion under Section 291 (supra);
c) Property acquired through robbery under Section 296 (supra);
d) Property acquired through criminal misappropriation under Section 308 (supra);
e) Property acquired though criminal breach of trust under Section 311 (supra); and
f) Money dishonestly withdrawn from a wrongful credit.
In order to prove that the property is stolen and that the accused person received same knowing or believing it to be stolen, there must be knowledge, which is the mens rea of the offence of receiving stolen property. See Sale V State (2017) LPELR-41992(CA) 8-9, B; Bello V State (2015) LPELR-41838(CA) 19, B-C; Yongo V COP (1992) LPELR-3528(SC) 36, E-G, per Karibi-Whyte, JSC. PER SANKEY, J.C.A.
CRIMINAL LAW: WHAT DISTINGUISHES A LEGITIMATE TRANSACTION INVOLVING THE EXCHANGE OF GOODS FROM ONE THAT CONSTITUTES AN OFFENCE

The sale and/or exchange of goods for monetary value is a commercial activity. As a result, what distinguishes a legitimate transaction involving the exchange of goods from one that constitutes an offence is the manner of the transaction and the mental conception of those that engage in it. Consequently, where the transaction is carried out in a clandestine or furtive atmosphere and where the article involved in the transaction is sold way below the ordinary market price, chances are that there is something unwholesome or fishy going on. When the situation is coupled with one in which it is established that the property was indeed stolen and that the accused received or retained the stolen property, then it will be correct to hold that the offence of receiving stolen property has been proved beyond reasonable doubt – Oluwaseyi V State (2016) LPELR-41121(CA) 33-35, E-A, per Daniel-Kalio, JCA. PER SANKEY, J.C.A.

APPEAL: ATTITUDE OF THE APPELLATE COURT TO INTERFERING WITH SENTENCE MADE BY THE TRIAL COURT

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-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

MUSTAPHA IBRAHIM APPELANT(S)

And

THE STATE RESPONDENT(S)

JUMMAI HANNATU SANKEY, J.C.A. (Delivering The Leading Judgment): This Appeal is against the Judgement 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 14 years imprisonment for the offence of dishonestly receiving stolen property contrary to Section 317 of the Penal Code Laws of Borno State, 1994.

This is a sister Appeal to Appeal No. CA/G/521C/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 3rd accused person and the Appellants in Appeal No. CA/G/521C/2019 and Appeal No. CA/G/522C/2019 respectively were the 1st and 2nd accused persons.

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 in Maiduguri and has not been found to date. Family and friends embarked upon a search for the young

man, extending the search to Police Stations, Hospitals and Morgues, with announcements in media outfits such as BRTV and NTA Maiduguri, 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) who had paid the sum of N170, 000.00 for the Tricycle to Kyari Babagana (an officer with the Nigerian Customs Service) and Babagana Grema, both of whom were the 1st and 2nd accused persons who also stood trial with the Appellant before the trial Court. This was after the Appellant had ostensibly paid 1st and 2nd accused persons the sum of N350, 000.00 earlier on as part payment for the Tricycle. Mohammed Ibrahim’s mother testified as PW1 and she is also the biological mother of this Appellant. Upon her insistence for a receipt to confirm payment for the Tricycle, the 1st and 2nd accused persons in conjunction with the Appellant, procured a receipt/invoice from the 4th and 5th accused persons (who were dealers in Tricycles).

After Police investigations, the Appellant as well as the 1st, 2nd, 4th and 5th accused persons, were

arraigned before the Bornu State High Court on a five-count charge of conspiracy to kidnap, theft, kidnapping, dishonestly receiving stolen property and forgery contrary to Sections 97, 287, 273, 317 and 364 respectively of the Penal Code (supra). All the accused persons pleaded not guilty to the charge. In proof of its case, the Respondent adduced evidence through eight (8) witnesses and ten (10) Exhibits; while each of the accused persons testified in their defence, but called no witness.

At the close of trial, Judgement was delivered on September 2, 2019 wherein the 1st and 2nd accused persons were convicted for the offence of theft punishable under Section 287 of the Penal Code (supra); while the Appellant (as 3rd accused person) was convicted for the offence of dishonestly receiving stolen property punishable under Section 317 of the Penal Code (supra). The 4th and 5th accused persons were however discharged and acquitted for the offence of forgery. Piqued by his conviction and sentence, the Appellant filed an appeal to this Court on September 5, 2019 wherein he complained on eight (8) grounds.

At the hearing of the Appeal on September 8, 2020,

S.M. Konto Esq., learned Counsel for the Appellant adopted his 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 and set aside the Judgement of the trial Court. In turn, A.I. Alkali, Esq., Principal State Counsel with the Borno State Ministry of Justice, adopted the arguments in response contained in the Respondent’s Brief of argument 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, formulated three issues for determination from his eight (8) grounds of Appeal as follows:
1. Whether upon careful and dispassionate appraisal of the evidence in this case, the Respondent discharged the requisite burden of proof upon it so as to justify the conclusion, conviction and sentence of the Appellant for the offence of dishonestly receiving stolen property contrary to Section 317 of the Penal Code Laws of Borno State, 1994. (Grounds 1, 4, 5, 6 and 9)
2. Whether the trial Court was right in convicting the Appellant for the

offence of dishonestly receiving stolen property when the alleged Keke Napep (Tricycle) was not tendered in evidence and was in possession of the owner. (Grounds 7 and 8)
3. Whether the sentence of the Appellant to fourteen (14) years imprisonment (maximum) for the offence of dishonestly receiving stolen property contrary to Section 317 of the Penal Code is not heavy and/or excessive in the circumstances of the case. (Ground 2).
On its part, the Respondent equally distilled three issues for determination thus:
1) Whether the prosecution has discharged the burden placed on it as required by Section 135 Evidence Act, 2011. (5, 6 and 7)
2) Whether the trial Court rightly convicted the Appellant for the offence of dishonestly receiving stolen property contrary to Section 317 Penal Code? (Grounds 1, 3, 4, 7 and 8)
3) Whether the trial Court has the power to impose the maximum sentence provided for the offence of dishonestly receiving stolen property contrary to Section 317 [of the] Penal Code. (Ground 2)
Both sets of issues are similar in content. However, since there is an obvious proliferation in the issues framed by the Respondent,

the issues crafted by the Appellant are adopted in the determination of the Appeal. They shall be addressed in the order in which they are argued, that is, issues one and two together and issue three alone.

ARGUMENTS
Issues one and two together:
I. Whether upon careful and dispassionate appraisal of the evidence in this case, the Respondent discharged the requisite burden of proof upon it so as to justify the conclusion, conviction and sentence of the Appellant for the offence of dishonestly receiving stolen property contrary to Section 317 of the Penal Code Laws of Borno State, 1994.
II. Whether the trial Court was right in convicting the Appellant for the offence of dishonestly receiving stolen property when the alleged Keke Napep (Tricycle) was not tendered in evidence and was in possession of the owner.

Learned Counsel for the Appellant submits that the Respondent did not prove the ingredients of the offence of dishonestly receiving stolen property under Section 317 of the Penal Code (supra) to warrant a conviction. In particular, that the Respondent did not prove through its eight (8) witnesses that the Tricycle was stolen

property and the trial Court did not make any findings in that regard.

Relying on the decisions in Yongo V COP (1992) 8 NWLR (Pt. 257) 36, 51, 62; and Alah V COP (1965) NMLR 121, 124, Counsel submits that an accused person can only be convicted for the offence of receiving stolen property where there is proof that the property is stolen property and a finding thereof is made by the trial Court. As a result, he contends that this Court cannot make a finding on the issue, notwithstanding the fact that the 1st and 2nd accused persons were convicted for theft of the Tricycle.

In addition, Counsel submits that there was no evidence to establish that the Appellant received or retained the Tricycle or that he knew or believed that the Tricycle was stolen property. Instead, in convicting the Appellant for the offence, the trial Court only drew an inference from the evidence adduced that the Appellant collected the sum of N60, 000.00 from the 1st and 2nd accused persons as his share for facilitating the sale of the Tricycle.

Counsel further submits that the failure to place in evidence the Tricycle, the subject matter of the charge, was fatal to the

Respondent’s case. Thus, he contends that the non-production of the Tricycle in Court amounted to withholding of relevant evidence which should be and was not produced. He therefore asked the Court to invoke the presumption of law in Section 167(d) of the Evidence Act, 2011. 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. 783) 1973, 2003.

Counsel submits that the absence of the Tricycle in evidence also amounted to a failure of the Respondent to establish its case against the Appellant. This is more so that the identity of the Tricycle was in issue due to the mix-up in the Engine and Chassis numbers vis-a-vis Exhibit Invoice 1 and the proofs of evidence, as well as Exhibit ST8, the Bond entered into by PW6 before the Police released the Tricycle to the owner. Counsel therefore urged the Court to resolve these two issues in favour of the Appellant.

In response to these submissions, learned Counsel for the Respondent submits that in fulfilment of Section 135(1) of the Evidence Act, 2011, the Respondent discharged the burden of

proof through the evidence of PW1 to PW8. He refers in particular to the evidence of the PW1 (the biological mother of the Appellant) as well as the evidence PW6 (the original owner of the Tricycle) which reveals that the Tricycle was stolen from its operator, Hussaini Idris, who is a missing person to date. The Tricycle was bought from the 1st and 2nd accused persons by the Appellant after the PW1 (his mother), had paid them the outstanding balance of N170, 000.00. Counsel submits that from the character of evidence presented, the trial Court was right to presume that the Tricycle was stolen from Hussaini Idris who was last seen driving it.

Counsel submits that the essential element of dishonestly receiving stolen property is proved once it is shown by credible evidence that the Appellant was found in possession of goods that were recently stolen. He referred to the evidence adduced before the lower Court that Hussaini Idris went missing on 17-06-18 while riding the Tricycle with Chassis number 18114 and Engine number 4443271. Subsequently on 24-06-19, the Tricycle was found in the possession of Mohammed Ibrahim, the Appellant’s brother. Evidence

before the trial Court revealed that the Appellant with the help of his mother PW1, bought the Tricycle for the use of the Appellant from the 1st and 2nd accused persons. In view of this, Counsel urged the Court to hold that the Appellant dishonestly received stolen property from the 1st and 2nd accused persons.

In addition, Counsel submits that in the light of the evidence adduced through PW1 and PW6, the Appellant knew that the Tricycle was stolen and yet he went ahead to receive it. Therefore, the presumption of law in Section 167(a) of the Evidence Act, 2011 was rightly invoked by the trial Court. Consequently, Counsel urged the Court to resolve these issues in favour of the Respondent.

RESOLUTION OF ISSUES ONE AND TWO
The offence of dishonestly receiving stolen property is defined under Section 316 of the Penal Code, Laws of Borno State (supra) and it is punishable under Section 317 as follows:
“317. Whoever dishonestly receives or retains any stolen property knowing or having reason to believe same to be stolen property shall be punished with imprisonment for a term which may extend to fourteen years or with a fine or with

both.”
Thus, as rightly submitted by both learned Counsel for the parties, in order to secure a conviction for the offence of dishonestly receiving stolen property, the prosecution must prove the following ingredients of the offence –
1. The property must have been received;
2. It must have been previously stolen;
3. The person receiving the stolen property must know it was stolen; and
4. The receiver must intend to deprive the owner of his or her property.
In addition, the term “stolen property” under Section 286 of the Penal Code consists of –
a) Property under Section 286 (supra);
b) Property acquired through extortion under Section 291 (supra);
c) Property acquired through robbery under Section 296 (supra);
d) Property acquired through criminal misappropriation under Section 308 (supra);
e) Property acquired though criminal breach of trust under Section 311 (supra); and
f) Money dishonestly withdrawn from a wrongful credit.
In order to prove that the property is stolen and that the accused person received same knowing or believing it to be stolen, there must be knowledge,

which is the mens rea of the offence of receiving stolen property. See Sale V State (2017) LPELR-41992(CA) 8-9, B; Bello V State (2015) LPELR-41838(CA) 19, B-C; Yongo V COP (1992) LPELR-3528(SC) 36, E-G, per Karibi-Whyte, JSC.
From the above, there is no doubt that the two main ingredients which the prosecution must prove are that the Appellant knew or had reason to believe that the property in question, that is the Tricycle, was stolen, and that the Appellant received or retained the stolen property dishonestly. Thus, the offence is one in which a guilty mind plays a vital part as two out of the four main ingredients of the offence relate to a guilty mind.
The sale and/or exchange of goods for monetary value is a commercial activity. As a result, what distinguishes a legitimate transaction involving the exchange of goods from one that constitutes an offence is the manner of the transaction and the mental conception of those that engage in it. Consequently, where the transaction is carried out in a clandestine or furtive atmosphere and where the article involved in the transaction is sold way below the ordinary market price, chances are that there is

something unwholesome or fishy going on. When the situation is coupled with one in which it is established that the property was indeed stolen and that the accused received or retained the stolen property, then it will be correct to hold that the offence of receiving stolen property has been proved beyond reasonable doubt – Oluwaseyi V State (2016) LPELR-41121(CA) 33-35, E-A, per Daniel-Kalio, JCA.

From the circumstances of this case gleaned from the evidence of PW1 to PW8, it was established that PW6 (the original owner) bought the Tricycle from a certain name company at the cost of N670, 000.00. An invoice, Exhibit Invoice 1, is in evidence in proof of his ownership. Thereafter, he gave the Tricycle to his nephew, Hussaini Magaji also referred to as Hussaini Idris, to operate for commercial purposes. On June 17, 2018, Hussaini went out to work and never came back home. Both Hussaini and the Tricycle disappeared without a trace, as testified to by his father, PW2. Thereafter, while the Tricycle was subsequently recovered by the Police from Mohammed Ibrahim (Appellant’s brother) on 24-09-18, Hussaini (its operator) has not been found till date.

Further Police investigations revealed that Mohammed Ibrahim (in whose possession it was found) was the Appellant’s brother, who claimed that the Appellant bought the Tricycle from the 1st accused person, an officer with the Customs Service. Hajja Ashe Ibrahim, PW1 and the Appellant’s mother, corroborated this account in her evidence which was quite telling and explicit at pages 27-28 of the Record when she stated as follows:
“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 and 2nd accused 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 that the person in whose custody it was (sic) bereaved. 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. I told the authorities that I bought the tricycle. I gave the balance of N170, 000.00 to the 1st and 2nd accused persons after they gave me receipt.”
This was the mother of the Appellant. The evidence of the PW2 to PW8 fleshed out the evidence of PW1 and corroborated it in material particulars.

Now, enter the defence of the accused persons. Whereas the the 1st and 2nd accused persons pointed accusing fingers at the 3rd accused person/Appellant as the source of the Tricycle, he in turn pointed an accusing finger at the 1st accused person as the person who sold the Tricycle to him. The 1st and 2nd accused persons agreed that they went and collected initially the sum of N100, 000.00 and subsequently N70, 000.00 from the Appellant’s brother, Mohammed Ibrahim, on the instruction of PW1 and at the prompting of the Appellant, ostensibly representing the balance to be paid by the Appellant to 1st accused person as the purchase

price of the vehicle. They however contended that actually, the Appellant had told them that he was given the Tricycle by the Shehu of Borno but that he did not want his mother to know this. In short, their defence was that on the instruction of the Appellant, they extorted the sum of N170, 000.00 from his own mother. The relevant portions of the evidence of the 1st accused person/DW1 at pages 71 to 72 of the Record reads thus:
“… in the month of August 2018 myself and Babagana Grema the 2nd accused were … sitting and chatting when the 3rd accused came and met us… He told me he bought a machine… He said it was a Keke Napep, a tricycle… He said he did not complete paying for the machine and the owner is pressurizing him, wanting to collect back the machine. He said he had money with his mother. But if he went alone to ask her she will not give him the money… He said I should escort him to his mother if she sees me she will give him his money. I agreed… 2nd accused told him to tell us the truth as to how he came by the machine since he was not working. He then said the truth was that it was the Shehu of

Borno that gave it to him… We went to meet his mother PW1… 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 know him better. That he is useless of that she (sic) should avoid him or we (sic) will implicate us… she said 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 the payment… She said the machine was too expensive. I reduced N30, 000.00. She called her son, the elder brother to the 3rd accused person 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… The 2nd accused counted N20, 000.00 and gave me, and counted N20, 000.00 again and put in his pocket and gave N60, 000.00 to the 3rd accused person… We called Mohammed Ibrahim elder brother to 3rd accused … We followed him to Zenith Bank GRA Branch and he withdrew N70, 000.00 and

gave the 2nd accused.”

The 2nd accused/DW2 gave essentially the same evidence and only added that the N70, 000.00 they subsequently collected from the Appellant’s brother, Mohammed Ibrahim, was shared between him and 1st accused person as the 3rd accused person now Appellant was nowhere to be found (pages 74 to 76 of the Record). What emerges from this evidence, if they are to be believed, is that whereas the Appellant told them that the Tricycle had been given to him by the Shehu of Borno, they colluded with him to tell his mother a cock and bull story that the Appellant had actually bought the Tricycle leaving an outstanding balance of N200, 000.00.

The Appellant on the other hand, as 3rd accused person/DW3 testified that he bought the Tricycle on auction from the 1st accused/DW1, a Customs officer, for the sum of N550, 000.00. After paying him the sum of N350, 000.00, he persuaded 1st and 2nd accused persons to accompany him to his mother, PW1, to collect the balance of N200, 000.00.

The same could not however be said of the charge of dishonestly receiving stolen property against the Appellant. From the evidence of PW2 and

PW6 (referred to above) and those of the investigating Police Officers PW3, PW4, PW5, PW7 and PW8, the Tricycle was recovered from Mohammed Ibrahim, the brother of the Appellant, who disclosed that it was sold to the Appellant by the 1st and 2nd accused persons. Further investigations revealed that the 1st and 2nd accused persons went on to deceitfully procure a fake invoice/receipt from Tricycle Dealers, 4th and 5th accused persons, to cover the purchase of the Tricycle. From the evidence of PW1 (the Appellant’s mother), it was revealed that the Appellant’s story to his mother was that the Tricycle was sold to him for the sum of N550, 000.00 by the 1st accused. He alleged that he paid up-front the sum of N350, 00.00 leaving a balance of N200, 000.00. He tried to persuade his mother to pay this balance to the 1st and 2nd accused persons. From the 1st and 2nd accused persons, it was revealed that the mother was deceived into paying out an initial sum of N100, 000.00 to them and they promptly shared it between them (1st and 2nd accused persons) and the Appellant, with the Appellant taking the lion share of N60, 000.00. They subsequently collected the

sum of N70, 000.00 from the Appellant’s brother after giving him the fake receipt for which they paid the sum of N3000.00, and since they could not find the Appellant, they again shared it between themselves.

Clearly from the abundance of evidence presented at the trial Court, it was enough to base its findings that the Tricycle was stolen from Hussaini Idris and the Appellant bought it knowing or believing that it was stolen. The circumstances of the purchase are certainly shrouded in dubiousness and stealthiness. This was further compounded by the accused persons themselves when they gave evidence in their defence wherein they pointed accusing fingers at each other, with the 1st and 2nd accused persons contending that they collected the sum of N170, 000.00 from the Appellant’s mother and brother at the Appellant’s directive and subsequently shared it with him, and the Appellant contending that he bought the Tricycle from the 1st accused person from whom he was used to purchasing such goods.

In view of the totality of the evidence before the Court, the learned trial Judge found sufficient

evidence to convict the 1st and 2nd accused persons for theft of the tricycle. In addition, he found that the offence of dishonestly receiving stolen property was proved against the Appellant. This finding was based on the inference he drew from the evidence. In his words, his lordship found inter alia thus at page 109 of the Record:
“…it is in evidence that it was the 3rd accused person who led the 1st and 2nd accused person to sell the Keke Napep to his own mother PW1 for the purported balance of N170, 000.00. There is unchallenged evidence before this Court that the 3rd accused person had possession of the Keke Napep in question in his house and later collected from the 1st and 2nd accused person when the 1st installment of N100, 000.00 was paid to them by the PW1. The question one will ask at this point is why did PW3 (sic) take the lion share of N60, 000.00 from the 1st and 2nd accused person?
The only inference I can draw from the evidence before me is that the 3rd accused person took the largest share of N60, 000 because he was the person who facilitated the sale of the stolen Keke Napep which the 1st and 2nd accused person could not

dispose of themselves. In their various defences both 1st and 3rd accused persons tried to pin the blame on each other. I do not believe their self-serving defence. I find from the evidence before me that the 3rd accused person knew that the Keke Napep was stolen when he received same from the 1st and 2nd accused person and dishonestly deceived his mother the PW1 to believe that he made part payment of N350, 000 for same.
For the record, I do not believe the defence of the 3rd accused person that he bought the said Keke Napep from the 1st accused person for the sum of N550, 000. In fact, the only evidence before this (sic) of any payment made for the purchase of the recovered Keke Napep is the sum of N170, 000 shared between the 1st, 2nd and 3rd accused person. I find that the prosecution has proved beyond reasonable doubt that the 3rd accused person dishonestly received stolen property from the 1st and 2nd accused persons to wit the Keke Napep belonging to PW6 Umar Isa an offence punishable under Section 317 of the Penal Code Law and I convict him accordingly.”

I cannot fault these findings especially in view of the presumption of law in

Section 167(a) of the Evidence Act (supra) which provides that –
“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.”
See Alarape V State (2001) FWLR (Pt. 41) 1873; & Oseni V State (1984) 11 SC 44.

It was obvious from the evidence that the Appellant was in cahoots with the 1st and 2nd accused persons. While they alleged that the Appellant showed them a receipt for the Tricycle, it was never produced in Court. Instead, they admitted to procuring a fake receipt for the Tricycle from the 4th and 5th accused persons which they presented to the Appellant’s mother (PW1) as genuine knowing that it was fake, in order to collect the sum of N200, 000.00 from her. When she resisted on account of the fact

that she suspected the story told to her by her son, the Appellant, they did their best to persuade her that the origin of the Tricycle was genuine and even went to the extent of reducing the sum of N30, 000.00, and collecting the sum of N170, 000.00 from her.

In addition, PW6, the owner of the Tricycle, gave evidence that he bought it for the wholesome sum of N670, 000.00; while the 1st and 2nd accused persons, in conjunction with the Appellant, collected the measly or meagre sum of only N170, 000.00 from the PW1 for the purchase of the Tricycle. This sum was so low compared to the purchase price of the Tricycle (N670, 000.00) that it also points to the fact that the Appellant knew or had reason to know that the Tricycle was stolen property when he connived with the 1st and 2nd accused persons to collect the sum of N170, 000.00 from his mother. It is no wonder that from his antecedents, his mother was so suspicious of his acquisition of the Tricycle that she insisted on the production of a receipt of purchase. As a result, the Appellant’s partners in crime deceived the 4th and 5th accused persons into issuing them fake receipts.

Clearly

therefore, the learned trial Judge was right when he found that the Appellant facilitated the sale of the stolen Tricycle to his own mother for the sum of N170, 000.00. I find no reason to disturb these sound findings which were based upon a proper evaluation of the cogent and compelling evidence before the lower Court.

Therefore, based on all the above, I resolve issues one and two in favour of the Respondent and against the Appellant.

Issue three – Whether the sentence of the Appellant to fourteen (14) years imprisonment (maximum) for the offence of dishonestly receiving stolen property contrary to Section 317 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 317 of the Penal Code (supra), i.e. fourteen (14) 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.
2. The Appellant has no record of previous conviction.
3. The Appellant is remorseful and pleaded for leniency.
4. The sentence is the maximum sentence of fourteen (14) years prescribed for the offence.
5. There was no option of fine.
6. The Appellant is a small boy.

Counsel contends that the 1st and 2nd accused persons, having been discharged of the offence of kidnapping of the missing teenager, the Appellant cannot be punished for that offence. He urged the Court to also resolve this issue in favour of the Appellant, and to therefore allow the Appeal, set aside the Judgement of the trial Court and discharge and acquit the Appellant.

In response to these submissions,

learned Counsel for the Respondent submits that Section 317 of the Penal Code (supra) does not provide for a minimum sentence. Therefore, the trial Court had a discretion to exercise in the matter of sentence, which discretion must be exercised judicially and judiciously. He submits that in the instant case, the sentence is not contrary to law and it is just and adequate.

Counsel further submits that an appellate Court will not alter a sentence merely because it would have imposed a different sentence. After watching the demeanour of the Appellant and listening to the testimonies of the witnesses, the trial Court exercised its discretion to award the maximum sentence.

Counsel however concedes that where a trial Court errs in sentencing, an appellate Court has the power to alter it. Where the sentence is excessive or inadequate and it is evident that there was a failure to apply the right principles of law, this Court may intervene – Adeyeye V State (1968) 1 All NLR 239, 241.

Counsel refers to the decision in Njoku V State (2013) All FWLR (Pt. 689) 1072, 1091 for the guidelines to be considered in sentencing. He contends that the

Appellant is not a “small boy” as contended by the Appellant, but is 23 years old, his offence is grievous, more so that Hussaini Idris from whom the Tricycle was snatched, is still missing. In addition, the law prescribes fourteen (14) years imprisonment for the offence. Counsel therefore urged the Court to resolve this issue in favour of the Respondent, to affirm the decision of the trial Court and dismiss the Appeal for lacking in merit.

RESOLUTION OF ISSUE THREE
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-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 on the ground that it is 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. Therefore, 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 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 – 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 such an interference.
I have examined the reasons given by the learned trial Judge at pages 112 to 113 of the 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 to date 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, the fact of the missing teenager operating the Tricycle should not have influenced the learned trial Judge in passing sentence on the Appellant, having not found the 1st and 2nd accused persons guilty of the offences of conspiracy and kidnapping. Thus, allowing the same issue to have influenced his consideration in imposing the maximum sentence thereafter on the Appellant, is unwarranted. This is more so that there is no Appeal by the Respondent in respect of the discharge and acquittal of the 1st and 2nd accused persons on the charge of conspiracy and kidnapping.
On the other hand, the Respondent confirmed that the Appellant had no previous conviction and so was a first offender. In

addition, the Respondent in this Court has confirmed that the Appellant is a young man of 23 years old. Also, the trial Court did not indicate that the offence of dishonestly receiving stolen property was 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 fourteen (14) years imposed on the Appellant, while within the law, was unwarranted, more so that Section 317 of the Penal Code (supra) provides for an option of fine and/or both. In the light of all the above, I resolve this issue in favour of the Appellant.
In the result, the Appeal succeeds in part.
Accordingly, I affirm the Judgement of the High Court of Justice of Borno State in Charge number BOHC/MG/CR/103/CT10/2019 between The State V Mustapha Ibrahim, delivered on September 2, 2019 by Ali, J., convicting the Appellant for the offence of dishonestly receiving

stolen property punishable under Section 317 of the Penal Code, Laws of Borno State.
However, I set aside the sentence of fourteen (14) years imprisonment imposed on the Appellant, and substitute it with a sentence of twelve (12) years imprisonment without an option of fine.

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 his reasoning and final conclusions.

The appeal succeeds in part. The judgment of the lower Court is affirmed. However, the sentence for Fourteen (14) years imprisonment is reduced to Twelve (12) years without an option of fine.

JAMES GAMBO ABUNDAGA, J.C.A.: I have had the advantage of reading in draft, the Judgment delivered by my learned brother, Jummai Hannatu Sankey, JCA. He was no doubt painstaking in his consideration of the issues for determination of the appeal. His conclusion on the issues cannot therefore be faulted.

I find as established from the evidence that the Appellant was rightly convicted for the offence of receiving the stolen

tricycle knowing it to be stolen, or had reason to know that it was stolen.
On the issue of sentencing, the imposition of the maximum sentence of 14 years on the Appellant in the absence of record of previous conviction, and of any indication by the trial Judge that the offence of receiving stolen property was rampant in the area and a need to discourage likeminded persons was unwarranted.

In view of the above I too find no merit in the substantive appeal as regards conviction for the offence charged and dismiss same; but allow the appeal on sentence.
I abide by his Lordship’s substitution of the sentence of 14 years with 12 years without option of fine.

Appearances:

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

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