OSARODION OSARENKHOE v. THE STATE
(2019)LCN/13639(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 10th day of July, 2019
CA/B/209C/2016
RATIO
DOCTRINE OF RECENT POSSESSION
It is trite that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing same to be stolen, unless he can account for his possession?. This in law is known as the doctrine of Recent possession. (See 167(a) of the Evidence Act for the doctrine of Recent Possession to operate there must be evidence that:
i. That the accused persons were found in possession of the stolenproperty.
ii. That the property was recently stolen.
iii. That the accused persons were unable to account for the possession of the stolen property.
See STATE VS. NNOLIM (1994) 5 NWLR (PT. 315) Pg. 394. PER CHIOMA EGONDU NWOSU-IHEME, J.C.A.
INSTANCES WHEN A PARTY MAY BE CHARGED WITH A LESSER OFFENCE
Section 179 (2) of the Criminal Procedure Act provides:
Where a person is charged with an offence and facts are proved which reduce it to a lesser offence, he may be charged with the lesser offence although he was not charged with it.
In NWACHUKWU VS. THE STATE (1986) 2 NWLR (PT. 25) 765. The Court held that a conviction can lie in respect of a lesser offence either on a trial of the offence charged with or by the accused pleading guilty to such a lesser offence although he was not originally charged with it. PER CHIOMA EGONDU NWOSU-IHEME, J.C.A.
OTHER FACTORS TO BE TAKEN INTO CONSIDERATION WHEN A PERSON IS CONVICTED IN TERMS OF IIMPRISONMENT
The Supreme Court in TANKO VS. STATE (2009) 4 NWLR (PT. 1131) Pg. 430 at 457 stated as follows:-
Where a sentence prescribed upon conviction in a criminal charge is a term of years of imprisonment, then come extenuating factors such as the age of the convict, whether he is a first offender e.t.c. can be taken into consideration by the Trial Court in passing the sentence on the convict. Indeed, the Trial Court has the discretion to employ these factors to reduce the years of sentence. PER CHIOMA EGONDU NWOSU-IHEME, J.C.A.
JUSTICES
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
Between
OSARODION OSARENKHOE Appellant(s)
AND
THE STATE Respondent(s)
CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment): The Appellant in this Appeal was arraigned before the High Court of Edo state, Benin Division Presided over by R. Irele-Ifijah, J, on an information of Armed Robbery under Section 6(b) and punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act cap R.II Vol. 14 Laws of the federation of Nigeria 2004.
In a considered judgment delivered on the 1st day of February, 2016 the learned trial Judge discharged and acquitted the Appellant on the offence of Armed Robbery but found him guilty of the lesser offence of Receiving Stolen Property, contrary to Section 5 of the said Robbery and Firearms (Special Provisions) Act and sentenced him to life imprisonment.
SUMMARY OF FACTS:-
?The case as presented by the Prosecution at the trial Court was that on the 15th day of July, 2013, Stephen Unoroh (PW1) while asleep with his family at home, they were woken at about 3a.m and were attacked by armed robbers who dispossessed them of their belongings including a Toyota Sienna Car. The robbers were said to have locked up PW1 and his family in a room
1
in their house and made away with their belongings.
PW1 reported the matter to the Police and eventually the 3rd accused was found in possession of the stolen Toyota Sienna Vehicle. The arrest of the 3rd accused led to the arrest of the 1st and 2nd accused persons. The 2nd accused is the Appellant herein. The three accused were charged with the offences of Conspiracy to commit armed robbery and armed robbery under the Robbery and Firearms (Special Provisions) Act. However, the evidence adduced by the prosecution during trial was insufficient to convict the accused persons for the offence which they were originally charged with but sufficient to convict the Appellant for the lesser offence of receiving stolen property. The Appellant was convicted and sentenced to life imprisonment for the offence of receiving stolen property. This appeal is predicated on that judgment.
?
Learned Counsel for the Appellant Dr. O. O. Obayuwana distilled four issues for determination as follows:-
1. ?Whether a Court can approbate and reprobate.
2. Whether the evidence on the record before Court supports the decision of the trial Court finding the Appellant
2
guilty of the offence of receiving stolen property.
3. Whether the ingredients of the offence of armed robbery are the same as those for the offence of receiving stolen property as to make Section 179(2) of the CPA applicable.
4. Whether or not the punishment for the offence of receiving stolen property carries a mandatory punishment.?
Learned Counsel for the Respondent F. I. Monyei Esq. on the other hand distilled two issues for determination thus:-
1. ?Whether the prosecution has proved the offence of Receiving Stolen Property beyond reasonable doubt giving the totality of evidence adduced at the trial.
2. Whether the punishment for the offence of receiving stolen property is excessive.?
Taking the issues he formulated, learned Counsel for the Appellant Dr. O. O. Obayuwana contended, in summary, that a Court cannot reject a piece of evidence or line of reasoning for one purpose and in the same case accept and adopt same for another purpose. He cited OSOLU VS. OSOLU (1998) 1 NWLR (PT.535) Pg. 532 at 565.
?
Counsel posited that the evidence adduced by the prosecution in no way support the decision of the trial
3
Court to find the Appellant guilty of the offence of receiving stolen property. He reproduced Section 5 of the Robbery and Firearms (Special Provisions) Act and argued that the Appellant was not formally charged with this offence, his plea was not taken and he did not formally defend himself against the charge and proffer explanations. He cited UDOH VS. STATE (1993) 5 NWLR (PT. 295) Pg. 556 at 568. Counsel referred to the evidence of one Sani Abubakar in whose possession the vehicle was found shows that the vehicle was not found in the possession of the Appellant.
He submitted that the ingredients of the offence of armed robbery are not the same with the offence of receiving stolen property. He argued further that where the offence charged has not been proved, the Court can only convict for a lesser offence, which must share the same basic elements that are proven. He cited the case of ODEH VS. F.R.N (2008) 13 NWLR (PT. 1103) Pg. 1 at 25.
?
Citing the observation of the learned trial Judge at page 91, Counsel further contended that the learned trial Judge had discretion from the circumstances of the case and the said Section 5 of the Robbery and Firearms (Special Provisions) Act ?
4
to reduce the term of years to which the Appellant was sentenced. He cited TANKO VS. STATE (2009) 4 NWLR (PT. 1131) Pg. 430 at 457. Appellant also filed a Reply brief.
Reacting to the foregoing, Learned Counsel for the Respondent, F. I. Monyei Esq. referred to the evidence of the prosecution witnesses and submitted that the prosecution proved the offence of Receiving Stolen property beyond reasonable doubt and that the learned trial Judge properly evaluated the evidence before him before he arrived at his decision.
He contended that even though the Appellant was originally charged with the offence of Armed Robbery, he can be convicted of the lesser offence of receiving stolen property in view of the fact that the evidence adduced by the prosecution was sufficient to convict the Appellant of the offence of Receiving stolen property.
Counsel argued that Section 179 (2) of the Criminal Procedure Act is applicable to the instant case as the Section enables a conviction to be entered for a lesser offence to which the main offence has been reduced. He cited SHOSIMBO VS. THE STATE (1974) 10 S.C. 1.
?
He posited that
5
the Appellant did not offer any reasonable explanation as to how he came to be in possession of the Toyota Sienna Vehicle. He therefore argued that the learned trial Judge was justified in relying upon the doctrine of Recent Possession. It was therefore incorrect, he posited, to say that the trial Judge approbated and reprobated at the same time. He cited
– EZE VS. THE STATE (1985) NWLR (PT.13) Page 429;
– STATE VS. NNOLIM (1994) 5 NWLR (PT. 315) Page 394.
The issues raised by both counsel can conveniently be compressed into one straight forward issue of narrow compass thus:
?Whether on the facts and circumstances of this case the learned trial Judge was right to have found the Appellant guilty of a lesser offence of Receiving Stolen property and if the punishment meted out to him for the said offence was excessive.?
The offence for consideration in the instant appeal is the offence of Receiving Stolen property and no longer Armed Robbery the initial charge. The trial Judge after listening to both parties decided to convict of the lesser offence of Receiving Stolen property.
?
The first step is therefore to consider if
6
the trial Court had the discretion to convict of a lesser offence. If the trial Court had the powers to convict of Receiving Stolen property, did the prosecution prove the said offence beyond reasonable doubt?
In an offence of receiving stolen property, the burden of proof is on the prosecution to prove the following beyond reasonable doubt:
1.That the car was stolen.
2. That the car was found in the possession of the accused person or that he took part in concealing or disposing of the vehicle.
3. That the accused person had knowledge that the car was stolen.
See YONGO VS. C.O.P (1992) LPELR 3528 (SC).
At pages 17 ? 18 of the Record of Appeal PW1 led evidence to show that he owned a Toyota Sienna car bought for him by his children and the said car was stolen by Armed Robbers on the 15th of July, 2013.
On the second ingredient, record shows that the Appellant was found in possession of the stolen vehicle and that the Appellant took part in disposing of the vehicle.
The Appellant in his testimony stated that he received the vehicle from one ?Junior?.
?
At page 25 of the Records, the Appellant under
7
cross examination stated that he was a Welder and not a car dealer. It was obvious that he took part in the selling of the vehicle. It is also in evidence that the Appellant rather than park the vehicle in his own workshop decided to park the vehicle outside his workshop. It is also in evidence that it was the Appellant who instructed the 3rd accused to drive the vehicle to Abuja to hand it over to its ?Owner?.
Having laid to rest the fact that the vehicle was stolen, the undisputed fact that the vehicle was driven out of Benin to far away Kebbi and parked completely out of the workshop of the Appellant in the premises of Corn Oil point to the fact that he knew that the car was stolen.
It is trite that ?a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing same to be stolen, unless he can account for his possession?. This in law is known as the doctrine of Recent possession. (See 167(a) of the Evidence Act for the doctrine of Recent Possession to operate there must be evidence that:
i. That the accused persons were found in possession of the stolen
8
property.
ii. That the property was recently stolen.
iii. That the accused persons were unable to account for the possession of the stolen property.
See STATE VS. NNOLIM (1994) 5 NWLR (PT. 315) Pg. 394.
The Appellant has admitted being in possession of the stolen vehicle but apart from his shallow statement that the vehicle was given to him by one ?Junior? who he did not bring in his defence, the Appellant failed woefully to give a satisfactory account of how the stolen vehicle came to be in his possession.
It is on Record that the Appellant and his cohorts were found in possession of the vehicle. The vehicle was recently stolen between the time PW1 was robbed of the vehicle and the time it was discovered in possession of the Appellant and the Appellant was unable to account for being in possession of the stolen vehicle. See UDOH VS. THE STATE (1993) 5 NWLR (PT. 295) Pg. 56.
?
Going through the judgment of the learned trial Judge, it was clear that there was doubt created in the mind of the trial Court as to whether the Appellant was one of the Armed Robbers prevented a conviction for the offence of Armed Robbery as
9
originally charged, but the learned trial Judge was convinced that there was ample evidence led to have convicted the Appellant of the offence of Receiving stolen property knowing same to have been stolen.
Section 179 (2) of the Criminal Procedure Act provides:
?Where a person is charged with an offence and facts are proved which reduce it to a lesser offence, he may be charged with the lesser offence
