USENI v. STATE (2022)

USENI v. STATE

(2022)LCN/16593(CA)

In The Court Of Appeal

(AKURE JUDICIAL DIVISION)

On Tuesday, October 04, 2022

CA/AK/289C/2020

Before Our Lordships:

Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Yusuf Alhaji Bashir Justice of the Court of Appeal

Between

ADAMU USENI APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

THE BURDEN OF PROOF IN CRIMINAL TRIALS

The law is well settled that in criminal trials the burden of proof is always on the prosecution to establish the allegation against the accused person beyond any reasonable doubt. See SHEHU V STATE (2010) LPELR–3041 (SC). PER BASHIR, J.C.A.

THE POSITION OF LAW ON PROVING THE COMMISION OF A CRIME BY MEANS OF CIRCUMSTANTIAL EVIDENCE

It is trite that in criminal trials in addition to the evidence of an eye witness to the commission of the crime and the confessional statement of the accused person, the commission of an offence can as well be proved by means of circumstantial evidence. GONI V STATE (2014) LPELR–24001.

THE DOCTRINE OF RECENT POSSESSION

One recognized instance of circumstantial evidence is the presumption envisaged under Section 167(a) of the Evidence Act which provides that a Court may presume the existence of any fact which it deem likely to have happened regard being had to the common course of natural events, human conduct and public and private business, in their relationship to the fact of the particular case and in particular, the Court may presume that a man who is in possession of stolen goods soon 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 STATE V EZE (1985) LPELR–1189 (SC).
This presumption is generally referred to as “The Doctrine of Recent Possession” which operates where the evidence before the Court shows:-
(1) That the goods are stolen.
(2) That the accused must be in possession of the goods.
(3) That the goods are found in his possession soon after the theft.
(4) That the accused was unable to account for his possession of the goods.
TAIYE V STATE (2018) LPELR–44466 (SC).
Now that there is an undisputed evidence that a phone recently stolen for PW2 has been traced and found in possession of the Appellant, the presumption under Section 167(a) of the Evidence Act that the Appellant is either the thief or receiver of a stolen property must be invoked against him having not satisfactorily explained how he came about the item (phone). See TONGE V STATE (2016). PER BASHIR, J.C.A.

YUSUF ALHAJI BASHIR, J.C.A. (Delivering the Leading Judgment): On 17th day of March, 2020 the Appellant was convicted on a one count charge of receiving stolen property and sentenced to a term of life imprisonment under Section 5 of the Robbery and Firearms (Special Provisions) Act by the Ondo State High Court sitting in Akure presided by Hon. Justice S. A. Bola (now JCA).

The particulars of the charge against the Appellant and one other, Gerema Ibrahim reads as follows as per the amended information:

AMENDED INFORMATION
At the session holden at the High Court of Ondo State, Akure Judicial Division, this … day of … 2019, the Court is hereby informed by the Honourable Attorney-General on behalf of the State that GEREMA IBRAHIM AND ADAMU OSENI are charged with the following offences:
COUNT 1
STATEMENT OF OFFENCE
Receiving stolen property, contrary to and punishable under Section 5 of the Robbery and Firearms (Special Provisions) Act, Cap R11, Laws of the Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE
Adamu Oseni (also known as Hussaini Adamu) and Gerema Ibrahim between November 2018 and February 2019, did unlawfully receive one Lenovo handset and one Nokia C2 handset from one Olamide Bello knowing same to have been violently stolen.
Dated this 22nd day of November 2019.

At the end of the trial where the prosecution called two witnesses and tendered exhibits while the Appellant testified for himself, the following details emerged as the facts of the case.

That on 23rd September 2018 an armed robbery took place at the residence of one Solomon Oladunjoye located at Olusoga community, Ologede, Surulere, Ondo Road, Akure where phones including a white Lenovo phone and the sum of N20,000 were carted away by the robbers. And one Oladunjoye Oluwaseun 38, son of the PW2 was shot and killed by the armed robbers.

In the course of investigation the stolen properties were recovered from the Appellant, as a result of which he was convicted for receiving stolen property. This appeal is fallout of that conviction.

The Appellant’s Notice of Appeal containing four grounds of appeal filed on 3rd June, 2020. The four grounds are hereunder reproduced:
(1) The learned trial Judge erred in law having convicted the Appellant of the offence of receiving stolen property without any legally admissible evidence against him, in proof of the charge against him which the prosecution totally failed to prove beyond reasonable doubt.
(2) The learned trial Judge erred when he wrongly applied Section 167(a) of the Evidence Act against the Appellant where the prosecution has no cogent and credible evidence in support of same.
(3) The learned trial Judge erred in law when he failed to consider all evidence made available by the Appellant which are favourable to his case.
(4) The judgment of the trial Court is unreasonable and cannot be supported having regard to the evidence.

The appeal was entered on 13th October, 2020 and duly taken on 31st June, 2022.
Meanwhile, the Appellant’s brief of argument was filed on 4th November, 2020, Mr. O. P. Daramola of counsel formulated 3 issues for determination; namely:-
(a) Whether or not the Court below was right to have convicted the appellant on a legally inadmissible evidence where the prosecution has failed to prove the case of receiving stolen property against the appellant beyond reasonable doubt as required by law. (Issue distilled from ground one).
(b) Whether the trial Court in the face of overwhelming evidence in support of the case against the appellant was right to have applied Section 167(a) of the Evidence Act and resolving same against the appellant where the prosecution failed to prove its case with cogent and compelling evidence as required by law. (Issue distilled from ground two).
(c) Whether the trial Court is bound by law to consider all evidence favourable to the appellant particularly where such evidence is clearly on the face of the record. (Issue distilled from ground three).

The Respondent’s brief on the other hand was filed on 15th September, 2021 deemed on 2/3/2022. The learned Chief Legal Officer, Helen Modupe Falowo Esq. formulated only one issue for determination thus:-
“Whether the Respondent proved the essential element of the offence charged beyond reasonable doubt to warrant the conviction and sentence of the Appellant by the trial Court?” (Distilled from grounds 1 – 4).

Appellant’s reply brief of the Respondent’s brief settled by same O. P. Daramola Esq. filed on 15th March, 2022.

SUBMISSIONS OF APPELLANT’S COUNSEL
Issue One
On Issue one, Appellant’s counsel submit that none of the witnesses gave cogent and compelling evidence against the Appellant as all the pieces of evidence including the exhibits are purely on the charge of armed robbery which the Appellant is not facing. Submit that a Court should restrict itself to legally admissible evidence in its judgment. See VESE V WAIFEM (2018) 2 NWLR (Pt. 1603) 336.

Submit that the records show that it was DW1 who first had contact with the Yoruba man who sold Exhibits “A” and “B” to the DW1, he was the one who introduced the Yoruba man to the Appellant. DW1 paid the N20,000.00 on behalf of the Appellant (DW2). That the person who sold Exhibits “A” and “B” were originally traced to DW1. See Exhibit “G” Appellant’s extra-judicial statement where he stated how the phones got to him and the price paid. Yet the trial Court misapplied the evidence of DW1 against the Appellant and then had the DW1 discharged and acquitted. That evidence of DW1 is not admissible against the Appellant. See ADELEKE V THE STATE (2013) 16 NWLR (PT. 1381) 556.

Appellant’s counsel further submit that the Appellant had explained with emphasis how the phones got to him especially Exhibit “A” which he purchased for N20,000.00. The Appellant gave evidence that it was DW1 who introduced him to the seller of the phones. So there is no how the convict could have known that it was a stolen phone.

Finally, counsel submits that the evidence admitted against the Appellant was wrongly admitted and same is inadmissible against him. He urged this Court to resolve the issue in his favour.

Issue Two
Submission of the learned Appellant’s counsel is that:
“He thought that for the doctrine of recent possession to apply a person must be found to be in possession of the property recently stolen. The presumption is that he is either the thief or knew the property to be stolen”.
KOLAWOLE V STATE (2012) 12 NWLR (PT. 1313) 104.

Submit that the Appellant must have been found in possession of Exhibit “B” hours after the robbery operation and not being able to give account of how he came about the property.

Appellant’s counsel submits that the evidence of the Appellant is to the effect that Exhibits “A” and “B” was found on him but that he paid for the value of the phones N17,000.00 for Exhibit “A” and N25,000.00 for Exhibit “B”. But PW1 failed to investigate this fact. Yet, PW1 went on to say under cross-examination that the phone is worth N45,000.00. That the robbery took place in September 2018, the Appellant was arrested in February 2018. The gap between the two dates is not recent.

Submit that even in Exhibit “G” which is the extra-judicial statement of the Appellant he did not deny being in possession of Exhibits “A” and “B” but that they came through DW1 who introduced the seller to him. From whom he requested for receipt of the phones but DW1 as the seller failed to give him the receipt up to the point of his arrest by PW1. This counsel submits is vital evidence from the defence which has not been rebutted. The Court was not right when it invoked S. 167(a) of the Evidence Act in view of the explanatory evidence from the Appellant. The prosecution did not prove that the phone Exhibit “B” was recently stolen. So issue 2 should be resolved in favour of the Appellant.

On Issue Three (3) the learned Appellant’s counsel submits that this is an offshoot of the first two issues argued by him earlier on. The main complaint here is that the learned Judge did not give any consideration to the line of favourable evidence adduced by the Appellant in support of his case on how he came about Exhibit “B” through DW1 which he purchased for N20,000.00. That Appellant also adduced evidence of his futile efforts to get receipts of the two phones. Both pieces of evidence are favourable to the Appellant. Citing the case of AYABA V STATE (2018) 14 NWLR (PT. 1638) 180 counsel urged this Court to make an order setting aside the judgment of the trial Court and in its place make an order setting for his discharge and acquittal.

RESPONDENT’S COUNSEL
Arguing his sole issue, the Respondent’s counsel submits that from the totality of the evidence of PW1 and PW2, the Respondent has successfully proved beyond reasonable doubt that Exhibit “B” which is the property in question, is one of the phones stolen during an armed robbery incident that occurred in Akure on 23rd September 2018 and same was found in possession of the Appellant. The presumption of recent possession under Section 167(a) Evidence Act, 2011 was properly invoked. See PEOPLE OF LAGOS STATE V UMARU (2014) ALL FWLR (PT. 737) 658 AT 683.

Submits that the doctrine empowers the Court to infer guilty knowledge on the person found in possession of property recently stolen in the absence of reasonable explanation from him as to such property. EHIMIYEIN V THE STATE (2016) LPELR–40841 (SC) where the condition necessary to be established for the doctrine to apply was set by the Supreme Court per Bage JSC that:-
(a) The accused was found in possession of some goods.
(b) The goods were recently stolen and
(c) The accused failed to give satisfactory account of his possession of the goods.

Respondent’s counsel submits further that from the wordings of Section 167(a) of the Evidence Act, 2011 the power of the Court to draw an inference of guilty knowledge on the part of the defendant is not mandatory. Once the prosecution proves the charge, the evidential burden shifts to the defendant; to exonerate himself from the presumption under Section 167(a) of the Evidence Act.

The learned counsel argued that the explanation by the Appellant at the trial is not satisfactory because he testified that he was into the business of charging handsets at Agege in Lagos. Thus he was told by the 1st defendant one Gerema Ibrahim to buy the handsets from one Yoruba man which he bought at the abattoir at the rate of N20,000.00. The Yoruba man promised to but did not give him any receipt or paper for the phones. He in turn sold the phones to one Abubakar Ibrahim who gave it to his girlfriend. He is not into the business of selling phones.

Submit that abattoir is not an ideal place for selling or buying phones and the amount paid for the phones is ridiculously low. No receipt issued for the sale of the two phones. All this took place two months after the robbery when the phones were stolen occurred. The gap between September 2018 when the robbery happened and February 2019 when the stolen goods were found with the Appellant is “recent” by virtue of Section 36 of the Evidence Act, 2011.

Submit that there are material facts in the evidence of PW1 and PW2 that Exhibit “A” was found in possession of the Appellant having been recovered from his shop, failure of the Appellant to cross-examine the witnesses on this material fact amounts to acceptance as the truth of the matter. That the Appellant did not raise objection to the admissibility of Exhibits “B” and “G”, Court is entitled to consider their probative value in the case. See EGBOGBONOME V STATE (1993) 7 NWLR (PT. 306) 383.

Submit finally that the Appellant did not discharge his own duty imposed on him by law that contrary to the submission of the Appellant’s counsel, the trial Judge properly evaluated all the evidence on record and that a Court is not under any obligation to go on a fishing expedition for defence not borne out by evidence contained in the record of proceedings in order to make findings in favour of the accused person. See BALA V STATE (2019).

Learned Respondent’s counsel urged this Court to resolve the issue in favour of the Respondent and uphold the conviction of the Appellant by the lower Court.

The learned Appellant’s counsel like I observed earlier had filed the Appellant’s reply brief on 15/3/2022 which in fact substantially addressed only issues of fact as opposed to points of law. We shall however be mindful of those void points of law raised by the counsel.

RESOLUTION OF ISSUES
In the resolution of this appeal, I shall approach the exercise by combining issues one and two formulated by the Appellant and the sole issue formulated by the Respondent together.

The first set of issues deal with sufficiency of evidence and the desirability of the application of the provision of Section 167(a) of the Evidence Act, 2011 to convict the Appellant for being in possession of stolen property.

The law is well settled that in criminal trials the burden of proof is always on the prosecution to establish the allegation against the accused person beyond any reasonable doubt. See SHEHU V STATE (2010) LPELR–3041 (SC).

The allegation against the Appellant in this case as per the amended information is for the offence of receiving stolen property punishable under Section 5 of the Robbery and Firearms (Special Provisions) Act Cap R11 Laws of the Federation, 2004.

In order to prove the offence of stolen property knowing it to be stolen against an accused person, there must be evidence that the property in question was indeed stolen. It must also be proved that the accused knew it to be a stolen property. See AIYEOLA V THE STATE (1969) 1 ALL NLR 309, STATE V NNOLIM & ANOR (1994) LPELR – 3222 (SC).

In proof of the allegation here, the prosecution led cogent and consistent evidence through PW2 (victim of the crime) that on 23rd September 2018 armed robbers invaded his home in Akure and carted away several valuable items from him and his wife, among which is a white Lenovo phone Exhibit “B”, later traced and recovered from the Appellant’s shop in Lagos. And PW1 Warrant Sergeant Ajibola Helen of the Special Anti-Robbery Squad (SARS) Ondo State and Mr. Solomon Omole Oladunjole: victim of the crime. I reproduce relevant portions of their testimonies here:
“I am Solomon Omole Oladunjoye. I live at Olusoga Community, Olagede Adebowale, old Ondo Road Akure. I am a petty business man.
On 23rd September 2018, at about 2.00am, there was no electric power. I heard gunshots three times. Immediately I got up. At the sitting room, I met three men. I was ordered to lie face down and closed my eyes, they were armed. I had to comply. I asked from them what they wanted. They wanted money. I showed them where I kept my money. They took the money. They also demanded for my phone. I told them it was on my bed. I also showed them my ATM card inside my bag. They left for my wife’s room. I saw the trace of blood in my wife’s room. I raised alarm. I discovered they went to my late son’s room after they left my wife’s room. I saw my son with gunshot on his chest. I carried him to the Specialist Hospital Akure. At the Hospital, he was pronounced dead. I reported at the Fanibi Police Station. The name of my son killed was Joshua Oluwaseun Oladunjoye.
The gang of robbers stole my handsets, my late son’s handsets, that of my late son’s wife handset. The Lenovo handset (Exhibit D) belong to me. I do not know who owned the other set.”

PW1 – Sergeant Ajibola Helen
“The phone that was robbed from the deceased and the complainant and that of Okonwada Micheal in the other apartment the IME members of the phones were supplied to the police. We sent the IME Nos. to our information communication Technology office in Abuja. They worked on the numbers. They sent the result to us. It was revealed that the phone was being used by one Zainab Ibrahim; with phone No. 07084178565 in Agege, Lagos. The team that was led by ASP Amugbon moved to Lagos State in December 2018. Zainab Ibrahim was there and then arrested. After interrogation, she confessed that the phone was sold to her by the 2nd defendant (Oseni Adam) through her boyfriend named Mohammed. We went to Mohammed who led us to the 2nd defendant at Abbatoir, Oko–Oba, Lagos.
When we got the 2nd defendant arrested, through interrogation, the 2nd defendant said he bought the handset from Olamide Bello who came through the 1st defendant (Gerema Ibrahim) whom they called Ajagba. That it was the 1st defendant who normally brings customers to the 2nd defendant for the purpose of selling handsets.
After the 2nd defendant’s interrogation, he made statement. We also went back to Lagos to arrest the 1st defendant (Gerema). The 1st defendant led us to the SARS office in Lagos where Olamide who said brought handsets to him (1st defendant) was being detained. We went to SARS office on investigation activities. There we obtained the statement of Olamide under caution. Olamide said that the phone was brought to him by one Tosin who they normally called “Ondo Egin”. Myself and ASP Amogbon had discussion with the OC SARS in Lagos State for them to release Olamide Bello to us for the purpose of our investigation. SARS refused to release Olamide on the ground that he was being detained on the case of armed robbery and cultism.
It was the 1st Defendant (Gerema) who led me to the SARS office in respect of Olamide. He knew that Olamide was being detained there.
We later went to the 2nd defendant’s shop where he charged phones. There we recovered in his shop 1 white Lenovo phone belonged to the deceased Oluwaseun Oladunjoye.
The 2nd defendant said that it was the 1st defendant who was bringing customers to him. That the 2nd defendant had bought about 5 phones from Olamide Bello through the 1st defendant.
I took the statements of Okowade and Zainab. I also took the statements of the Defendants.
I have with me the Nokia C2 phone and 1 white Lenovo from the 2nd Defendant’s shop, shown to me are the phones. At the scene, we recovered an iron Bar, 2 empty cartridge shell and some scattered pellets.
Prosecution: Tenders these items.
Defence: No objection.
Court: The following items are admitted and marked as follows:
(1) Nokia (2) Phone – Exhibit A
(2) 1 White Lenovo phone Exhibit B
(3) 2 empty Cartridge shell – Exhibit C – C1
(4) Scattered pellets – Exhibit ‘D’
(5) Iron Bar – Exhibit ‘E.”

Invariably the burden is now cast upon the Appellant against whom this prima face case has been established to debunk same by leading contrary evidence properly explaining how he came into possession of the stolen phone (item).

Interestingly the Appellant who testified as DW2 did not deny or dispute the fact that the stolen phone was recovered from him. The only explanation he proffered for being in possession of the phone in his own defence is that he bought the phone from a Yoruba man introduced to him by one Gerema. He does not know the name of the Yoruba man and that no receipt was issued to him. The Appellant did not call the Yoruba man to testify in order to confirm the Appellant’s story.

Much more to that the Appellant did not deem it fit to cross-examine these two vital witnesses on this aspect of the very damaging evidence against him at the trial. The phones in issue were tendered and admitted in evidence without any objection from the Appellant’s counsel Exhibits “A” and “B”.

Similarly, the extra-judicial statement of the Appellant being the 2nd defendant at the trial was admitted without any objection. Exhibit “G”. See page 48 of the record of appeal.

It is trite that in criminal trials in addition to the evidence of an eye witness to the commission of the crime and the confessional statement of the accused person, the commission of an offence can as well be proved by means of circumstantial evidence. GONI V STATE (2014) LPELR–24001.

One recognized instance of circumstantial evidence is the presumption envisaged under Section 167(a) of the Evidence Act which provides that a Court may presume the existence of any fact which it deem likely to have happened regard being had to the common course of natural events, human conduct and public and private business, in their relationship to the fact of the particular case and in particular, the Court may presume that a man who is in possession of stolen goods soon 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 STATE V EZE (1985) LPELR–1189 (SC).
This presumption is generally referred to as “The Doctrine of Recent Possession” which operates where the evidence before the Court shows:-
(1) That the goods are stolen.
(2) That the accused must be in possession of the goods.
(3) That the goods are found in his possession soon after the theft.
(4) That the accused was unable to account for his possession of the goods.
TAIYE V STATE (2018) LPELR–44466 (SC).
Now that there is an undisputed evidence that a phone recently stolen for PW2 has been traced and found in possession of the Appellant, the presumption under Section 167(a) of the Evidence Act that the Appellant is either the thief or receiver of a stolen property must be invoked against him having not satisfactorily explained how he came about the item (phone). See TONGE V STATE (2016).

A person found in possession of items proved to have been stolen under S. 167(a) of the Evidence Act has to give account of how he came about the item.
However, not every kind of flimsy explanation will suffice. The explanation expected from the suspect must be satisfactory and reasonable. An explanation like the one given by the Appellant in his defence that he bought the stolen phone from one Yoruba man for N20,000.00 who did not give him any receipt; this is quite inadequate, vague and incapable of being ascertained and so absolutely unbelievable. It cannot avail the Appellant for a defence.

Although there is clear evidence that Exhibit “B” the Lenovo phone stolen from PW2 was actually found in his possession but in his defence before the Court, he was silent on how the phone got to him. Much as in his statement to the police Exhibit “G” admitted in Court without any objection, he mentioned and owned up to the possession of the Lenovo phone which he said one Gerema brought to him without receipt together with a Nokia phone he bought at the rate of N17,000.00. He in turn sold the phone to one Abubakar who gave same to his girlfriend. Mr. Gerema’s record has shown was charged along with the Appellant. He denied having anything to do with the Lenovo phone Exhibit “B”.

After a thorough review of all the evidence adduced before the Court of trial by the prosecution and the defence the learned trial Judge found as follows:-
“It is patently clear from the evidence on ground that the property in question was stolen by the robbers. There was a robbery in the house of the PW2. Many handsets were stolen by the robbers, including a Lenovo handset taken from the PW2. The Lenovo handset was traced to and recovered from the 2nd Defendant.
The PW2 identified to the Court the Lenovo handset as being the handset stolen from him by the robbers. These were the findings of facts of this Court. These facts establish clearly that the Lenovo set was a stolen property.
It is equally settled flowing from the evidence before this Court and findings of Court that the Lenovo handset, a stolen property was recovered from the 2nd defendant who was in possession of same.
Was the stolen property retained dishonestly by the 2nd defendant? Did he know or had the reason to believe that the property (handset) was stolen property?
These last two ingredients relate to a guilty mind or mens rea.
Often what separates a proper or legitimate transaction involving exchange of goods from one that constitutes an offense will have to be the modus operandi of the transaction and the mental construct of those engaged in it.
Thus where the transaction is carried out in a clandestine atmosphere and where the articles involve in the transaction are sold way below the regular price, the chances are that there is something unwholesome or fishy going on.
When this situation is coupled with one in which it is established that the property was stolen and that the accused received or retained the stolen property, then it will be correct to hold that the offense of receiving stolen property has been proved beyond reasonable doubt.
In this case, the 2nd defendant testified that he was into charging of phone. He was not into selling of handsets. The 2nd defendant was silent on how Exhibit “B” (Lenovo phone) got to him.
He only admitted that the Nokia C2 was sold by him to one Yoruba man for the sum of N20,000.00. His evidence was in connection with one Nokia phone. He denied having anything to do with the Lenovo phone.
This denial is suggestive and indicative that the 2nd defendant knew that the phone was stolen. It reveals dishonesty on the part of the 2nd defendant in the way and manner he received and retained the phone.
Flowing from the above premises, this Court holds that all the ingredients of the offence of receiving stolen property are constituted in evidence placed before this Court. Particularly the evidence of the prosecution witnesses.
Pertinent and relevant to this case is the doctrine of Recent Possession in Section 167(a) of the Evidence Act 2011. It is to the effect that:
“A man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession”.
Exhibit “B” was stolen from the PW2 during the robbery operation carried out at the residence on 23rd September 2018. The Lenovo phone (Exhibit B) was later recovered from the 2nd Defendant in the course of the police investigation.
Rather than giving account of his possession, the 2nd defendant denied having anything to do with the handset recovered from him.
In other words, the 2nd defendant failed to give account of how he came about to be in possession of the Lenovo. In K. Kwanshie v. The King XIII WACA page 86 followed by the Supreme Court in Afolabi v. State (2013) 13 NWLR (PT 1371) 272 a 319, it was held:
“The law on the point is that; if a theft has been committed and shortly afterwards a person who can give no account of it, he is presumed to be the thief.”
See also the following cases: Aremu v State (1991) (Pt 210) 1; State v Nnolim (1994) SCNJ 48, Aiyeola v State (1969) 1 ALL NLR 309.
Without much ado, the presumption and doctrine of recent possession is hereby invoked against the 2nd defendant in this matter.
In essence, this Court holds that the prosecution has established this charge against the 2nd defendant beyond reasonable doubt.
The burden of proof placed on the prosecution has been discharged.
However, no evidence was led to the fact that any handset was recovered from the 1st defendant. Evidence was not led to the effect that Nokia was received from him or was found in his possession. It was the PW1 (IPO) case that Exhibit “A” – Nokia phone and Exhibit “B” – Lenovo phone were recovered from the 2nd defendant.
Unfortunately, the PW2 – the victim of the robbery did not identify Exhibit “A” as one of the handsets stolen from him or members of his family.
For this and as stated above, I find the 1st defendant not guilty of the crime of receiving Lenovo handset knowing same to have been stolen. He is accordingly convicted.”

Going by the position of the law stated herein above the findings of the trial Judge leading to the conviction of the Appellant for the offence of receiving stolen property contrary to Section 5 of the Robbery and Firearms (Special Provisions) Act is unimpeachable.

The argument by the Appellant’s counsel that the stolen phone though he agreed was found in possession of the Appellant, but not immediately after it was stolen, so the condition for the application of Section 167(a) has not been fulfilled. What the counsel has not disputed and/or deliberately failed to avert his mind to, is that there is no dispute even from the Appellant himself, in addition to the credible evidence on record that Exhibits “B” and “A” both stolen phones were found in possession of the Appellant. Just because it was recovered some two months and not few hours after the theft; nobody expect the Appellant to receive a pat on the back and be told to go home free without making him pay for his action. The Appellant woefully failed to give a good and proper account of how he came into possession of the items and given the manner he purportedly acquired same by his inchoate explanation/account, betrays the Appellant’s guilty, knowledge and fraudulent intent. Because the law is settled that guilty knowledge may be inferred from the surrounding circumstance such as:
(a) Manner of receipt of the stolen goods.
(b) Time of delivery.
(c) Actions upon delivery and
(d) The price paid for the goods.
See OKOROJI V THE STATE (2002) 5 NWLR (PT. 759) 21 at 48, EKPO V STATE (2003) 17 NWLR (PT. 849) 392.

The contention by the Appellant that Gerema used to bring phones to him which he buys without demanding for receipts which the Appellant in turn sells to other people. It is also clear that the Appellant knew and had reason to know that Gerema and indeed himself are not into the business of selling phones, it was the basis of the above facts that the trial Court convicted the Appellant.

I am of the firm view that the learned trial Judge was alive to his duty. He has considered all defence raised by the Appellant, including the issue of the fact that the Appellant made effort to get the unnamed and mysterious person who sold the phone to him to issue him a receipt to no avail. Notwithstanding the fact that he did not get a receipt from where he allegedly bought it yet, he found nothing wrong in selling same to one Abubakar who the Appellant said he gave it to his girlfriend before it was tracked and recovered by the police who traced it to the Appellant and the Appellant was unable to give good account of how he came about the stolen phone.

Evidently, the learned trial Judge had appraised the totality of the evidence before him. The findings of the lower Court are amply supported by evidence. See OLUWASEYI V THE STATE (2018) LPELR – 46359 (SC).

I therefore hold that the trial Judge was right when he convicted the Appellant on the charge preferred against him.

Accordingly, all the issues in this appeal are hereby resolved against the Appellant. As a result, this appeal has no merit and it is therefore dismissed.

The conviction and sentence of the Appellant to life imprisonment imposed by the trial Court in its judgment delivered on 17/3/2020 in Case No: AK/93C/2019 is hereby affirmed.

NB: This judgment became due during the vacation, although it has been prepared and fully ready but I was unable to deliver same because I travelled out of jurisdiction.

Now with the consent and consensus of all concern, I hereby proceed to read the judgment today being the 1st and earliest opportunity since resumption from the vacation.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft, the leading judgment prepared by my learned brother YUSUF ALHAJI BASHIR, JCA, in this appeal.

I agree with the reasoning and resolution of the issues adopted by his Lordship in the determination of the appeal as well as the conclusion that the appeal is lacking in merit.

Accordingly, I too find the appeal to be without merit, and I dismiss the same. The conviction and sentence imposed on the Appellant by the lower Court in its judgment delivered on 17/3/2020 in Charge No. AK/93C/2019 is upheld by me.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now, the lead judgment delivered by my learned brother, Yusuf Bashir, JCA. His Lordship has considered and resolved the issues in contention on the appeal.
I agree.