YUSUFF AL-HASSANI v. THE STATE (2010)

YUSUFF AL-HASSANI v. THE STATE

(2010)LCN/3963(CA)

In The Court of Appeal of Nigeria

On Friday, the 9th day of July, 2010

CA/B/211C/2008

RATIO

INTERPRETATION OF STATUTE: INTERPRETATION OF SECTION 149(A) OF THE EVIDENCE ACT AS TO WHEN 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

Section 149(a) of the Evidence Act provides:- “The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case, and in particular the court may presume:- (a) 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. The Supreme Court had the opportunity to consider the above provision in the case of Madagava v. State (1988) 5 NWLR (Pt. 92) 60 where the court held that the provision of the section applies and the presumption can be drawn where:- (1) The accused was found in possession of some goods (2) The goods were stolen goods. (3) The possession was soon after the theft. (4) There is a failure to account for the possession. The Supreme Court in the above matter, per Karibi-Whyte JSC examined some authorities where the phrase “soon after the theft” has been applied. For ease of reference, we bother to reproduce the analysis of the learned Justice of the Supreme Court at page 84 paragraph D to page 85 paragraph C thus:- “I have already stated in this judgment that the fact that the goods are stolen goods is an essential element in the presumption. The other essential facts are that the accused must be in possession, and the possession must have been soon after the theft. I shall explain these two expressions as they apply to the presumption. PER GEORGE OLADEINDE SHOREMI J.C.A

WHETHER IN PROOF OF THEFT IT IS ESSENTIAL THAT THE STOLEN GOODS BE IN THE POSSESSION OF THE ACCUSED

PROOF OF GUILT: WHETHER WHERE THERE IS DOUBT IN THE CASE OF THE PROSECUTION, THE DOUBT SHOULD BE RESOLVED IN FAVOUR OF THE ACCUSED PERSON

The law is trite that where there is doubt in the case of the prosecution, the doubt should be resolved in favour of the accused person. See Achibone v. State (2006) 14 NWLR (pt 1000) 349 at 374 paragraph F. In Shade v. State (2005) 12 NWLR (Pt 939) 301 at 32 paragraphs B-D, Pats – Acholonu, JSC said:- “Although the standard of proof is not that of absolute certainty (that should be in the realm of heavenly trials) the court seised of the matter must convince itself beyond all proof that such and such had occurred. It is essential to stress times without number that the expression proof beyond all reasonable doubt – a phrase coined centuries ago and even ably applied by the Romans in their well developed jurisprudence and now verily applicable in our legal system, is proof that excludes every reasonable or possible hypothesis except that which is wholly consistent with the guilt of the accused and inconsistent with any other rational conclusions. Therefore, it is safe to assume that for evidence to warrant conviction, it must surely exclude, beyond reasonable doubt, all other conceivable hypothesis than the accused’s guilt. The accused should be acquitted if the set of facts elicited in the evidence is susceptible to either guilt or innocence in which case doubt has been created. PER GEORGE OLADEINDE SHOREMI J.C.A

STANDARD OF PROOF: STANDARD OF PROOF REQUIRED TO DISCHARGE THE ONUS OF CIRCUMSTANTIAL EVIDENCE LED BY THE PROSECUTION

It is however, the law that although the onus is on the accused to rebut circumstantial evidence led by the prosecution such duty is discharged by the accused on a preponderance of probabilities. See ADENIJI V. THE STATE (2001) 25 WRN 117 AT 134; MICHAEL PETER V. THE STATE (1997) 12 NWLR Pt 531 1. PER GEORGE OLADEINDE SHOREMI J.C.A

JUSTICES

AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria

GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria

OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria

Between

YUSUFF AL-HASSANI Appellant(s)

AND

THE STATE Respondent(s)

GEORGE OLADEINDE SHOREMI J.C.A: (Delivering the Leading Judgment): This is an appeal by the Appellant against his conviction by the High Court of Justice Benin City.
The back ground of the case is that, the Appellant as 3rd accused was charged with two others for the following offences:
COUNT 1:
That you Uzor George ‘m’ Otas Idehen ‘m’ Yusuff Al-Hassani ‘m’ and others now at large on the 8th day of September, 2005 at No. 5, Ameze street behind Benson Idahosa university Benin city, in the Benin Judicial Division, did conspired amongst yourselves to commit felony to wit: Armed Robbery committed an offence punishable under S.5(b) of the Armed Robbery and Fire Arms (special Provisions) Act cap 39g of the Federation of Nigeria 1990.

COUNT II:
That you Uzor George ‘m’ Osas Idehen ‘m’, Yusuff All- Husseni ‘m; and others now at large at No.5 Amenze Street behind Benson Idahosa University, Benin City, in the Benin Judicial Division, did rob rob one Generator, Tiger made plant valued N13,500.00,00k, one GSM Handset Nokia 11,00 valued N9,500.00k one sharp colour Television 14 inches valued N17,500.00k Two wedding Rings valued N12,000.00k, A pair of show valued N7,500.00k and the sum of N11,000.00k cash property of one Agbi Stephen ‘m’ and at time of the said robbery you were armed with guns and thereby committed an offence punishable under section 1(2) (a) of the Armed Robbery and fire arms (Special Provision) Act, Cap 398, Laws of the Federation of Nigeria 1990.
COUNT III:
That you Uzor-George ‘m’, Osas Idehen ‘m’, Yusuff All- Husseni ‘m’ and others now at large at No.5, Amenze Street behind Benson Idahosa University Benin City, in the Benin Judicial Division, did rob one GSM Handset Nokia 7200 camera with Glo line No. 08054573942 valued N70,000.00k, one Pressing Iron valued N12,500.00K one Bed sheet valued N3,000.00K, Two Sunny C.D. Speakers valued N35,000.00 and the sum of N10,050.00K cash property of one Agwi Cletus ‘m’ and at the time of the said of property of one Agwi armed with guns and you were armed with guns thereby committed an offence punishable under section 1(2) (a) of the armed robbery and fire arms (Special Provision ) Act, Cap. 398, Laws of the Federation of Nigeria 1990.
The prosecution called witnesses and the Appellant gave evidence in his own defence. It will be necessary to state his defence as much as can be the relevant portion is as follows I quote –
“After about one month the said Sampson came to me with one big bag and said he had bought a small generator for his barbing salon but he wants to sell it and travel to Lagos. I told him to bring it to the boys quarters where I live. He said it is new and he bought it for N13,500.00. He told me to pay N6,000.00 but I offered N4,000.00 and he accepted. I requested for the receipt and he said he would bring it the next day After he left I saw one pressing iron, one remote and a bed sheet inside the bag he brought. I carried the bag to my boys’ quarters with the intention of giving it to him when he brings the receipt. I did not see him until about two weeks later when two people entered my house and said they are policemen. The invited me to the vehicle they brought and asked if I could identify the person inside but I told them I did not know the person. But the person inside when he was asked whether I am the one said I am the one they are looking for. I was arrested and taken back to my house and conducted a search and removed my TV, generator. I bought from Sampson, and other things. They requested for the receipts and I told them somebody sold the generator to me but Justice Akpata gave me other items, I told police that Sampson will bring the receipt when he comes to work and that he works upstair in the main house. I opened the house at their request and they search it ad recovered Sampson’s tools. They are hammer, 2 cutlasses, ct long scissious or cutter. I told them I did not know the house of Sampson. I offered to take them to my Oga who sent Sampson to work in the house but they said they wanted Sampson. I was taken to the police station. At the station a man identified the generator as his own but said the other items were not for him. I was then detained. The boy that was brought to my house told me at the police station that he was the person who came with Samson to my house. The boy is the 1st accused person in this charge now in the dock. I was suspended and my hands and legs were tied up and one police man told me to tell him the truth but I told him I could not speak Hausa which he was speaking to me. I was then asked what happened and I told them. They asked whether I knew 1st accused and I said yes. They asked whether I went to rob with them and I said no. I told them I did not realize the boy who identified me in the vehicle was the person who came to my house with Sampson hence I did not tell them before then. I told them I did not know Sampson’s house or whether he had a gun or where he keeps it. As I was still suspended and being tortured I then said Sampson had a gun and the police men started laughing. I was then brought down but I could not stand up. I made a statement to the police. I deny the three count charge against me. I did not conspire with them to commit robbery. I only saw 2nd accused at the police station. I did not rob with them at any time any of the items listed in the charge. The TV and the CD and other things removed from house are still at the police station.
Cross-examination by Mrs. Aziegbemhin:- when the police came to arrest me then came with the 1st accused. I did not know Sampson before the day my Oga sent him to work in the compound. It is true Sampson does not sleep in the compound. Except when Sampson says he had work to do somewhere he leaves his tools in the house. It is not true that I used the tools to commit robbery. It was when the 1st accused came to my house with Sampson that I first saw him. It is not true that the first accused know me before then and was parking his bus in my compound. Sampson is not my friend. It is not true that we robbed with the tools Sampson left in my care. It is not true that the Oga did not introduce Sampson to me.
Mrs. Otoghile Esq:- Before the date of my arrest I know the first accused person but I did not remember the knowing him on that day they brought him in a vehicle. I did not know he was a bus driver. It is not true that he usually parks his bus in my compound
Edewi Esq cross examines the 3rd Accused. I did not know for the first time, on the day we were going to court.
Re-examination by Osifo Esq:- No re-examination that is the case for the 3rd accused”.
The trial judge after the address by counsel had this to say concerning the Appellant who was the 3rd Accused I quote –
“In the instant case there is no doubt that the 3rd Accused has admitted being found in possession of the Tiger generator and other items stolen from the PW1 and PW2 in the course of the armed robbery within a few days of the robbery. On his own showing the generator was put in a big bag when it was brought to him. In his testimony in court he said he told Sampson to bring it to the boy’s quarters where he lives after Sampson told him of the generator. He then offered N4000.00 for a generator valued N13,500 and which had been offered for N6000.00 before also discovering the other items in the bag. There is also evidence from the 3rd Accused that the said Sampson had previously attempted to enlist him for a robbery operation. He also admitted that the cutter used for the operation which was identified by the PW1 and PW2 was recovered from him. He initially denied knowing 1st Accused who identified him to the police but later admitted having seen him before.
As the learned Chief Legal Officer for the State aptly asked in her submissions why was it necessary to carry a generating set in a bag? How can a reasonable buyer omit to see a pressing iron, remote control and bed sheet in the bag? And if I may add, why was the big bag sold along with its contents and without any inspection? In the circumstances of the case I do not agree that the 3rd Accused has accounted for his possession of the tiger generator, TV remote control and bed sheet. I find his explanation unreasonable and same is rejected by me. I believe and hold that he was one of the armed robbers who stole the items from the house of the PW1 and PW2. I hold the view that his admission of being in possession of the stolen items within two days of the robbery is so soon after the robbery and raises a presumption that he is one of the robbers which presumption he had not rebutted. See Section 149(a) of the Evidence Act. I think he had a duty to call Sampson if he wanted his account believed. I believe he lied when he said he did not know 1st accused when 1st accused led the police to his house to effect his arrest and recover the stolen items and offensive weapons used for the robbery.
Following from the totality of the foregoing I hold that count one is proved against 1st Accused person only, punishable under Section 5 (b) of the Act as a principal offender. 1st Accused is accordingly convicted. Count one is not proved against 2nd and 3rd Accused persons and is accordingly dismissed against each of the 2nd and 3rd Accused persons who are discharged and acquitted in count one.
I find that counts two and three are proved against the Accused person. He is accordingly convicted in each those counts.
I find counts 2 and 3 not proved against the 2nd Accused person. Those counts are dismissed in relation to him and he is discharged and acquitted accordingly.
I find the 3rd Accused person guilty in each of counts 2 and 3 and he is convicted accordingly on each of those counts”.
The Appellant not satisfied with this judgment appealed against his conviction and sentence. Five grounds of appeal were filed as follows with particulars.
GROUNDS OF APPEAL
1. The learned trial Judge erred in law when he held “from Exhibit E the 3rd Accused Person was arrested on 26/9/2005 by which time he already had the stolen items with him for fifteen days. The items were allegedly stolen in the course of the robbery on or about 9/9/2005. This means that the third accused person had the stolen items in his possession within two days of the robbery.”
2. The learned trial judge erred in law when he held in the circumstances of this case, I do not agree that the 3rd accused has accounted for his possession of the tiger generator, TV remote control and bed sheet. I find his explanation unreasonsble and same is rejected by me. I believe and hold that he was one of the armed robbers who stole the items from the house of the PW1 and PW2″.
3. The learned trial judge erred in law when he held “I hold the view that his admission of being in possession of the stolen items within two days of the robbery is so soon after the robbery and raises s presumption that he is one of the robbers which presumption he has not rebutted. See section 149(a) of the Evidence Act. I think he had a duty to call Samson if he wanted his account believed”
4. The learned trial Judge erred in law when he held the 3rd accused guilty in each of counts 2 and 3 and accordingly convicted him on each of those counts.
5. The judgment is unwarranted, unreasonable and cannot be supported having regard to the evidence.
Briefs were exchanged by the Appellant and the Respondent. On the 3rd of March 2010 when the appeal came up for hearing E.S. Osifo Esq adopted his brief of argument dated 24/7/08 filed on 25/7/08. He adopted same and relied on it as his argument in favour of the Appellant.
The Respondent was not represented therefore in line with the rules of this court the brief dated 11/5/09 deemed properly filed on 14/5/09 was taken as argued. In his brief the Appellant distilled 4 issues for consideration as follows:-
(f) Whether having regard to the evidence on record particularly Exhibit “E”, the learned trial Judge’s finding that the 3rd accused now appellant had the stolen items in his possession within 2 days of the robbery can be justified.
(2) Whether having regard to the failure of PW3, the police to investigate the statement of the appellant Exhibit “8”, the entire circumstances of the case and the several doubts in the prosecution’s case, the learned trial judge was right when he rejected the explanation of the appellant as to his possession of some of the items allegedly robbed and held him to be one of the robbers who stole in the house of PW1 and PW2.
(3) Whether the learned trial judge’s finding that the appellant has not rebutted the presumption of section 149(a) of the Evidence Act, and the burden the learned trial judge placed on the appellant to call Samson in evidence can be justified in view of the several doubts in the prosecution’s case.
(4) Whether the learned trial judge was right when he convicted the appellant of counts 2 and 3 when the prosecution failed to prove its case beyond reasonable doubt.

The Respondent distilled 3 issues as follows:
ISSUES FOR DETERMINATION:
1. Whether arising from the evidence on record, the presumption under S.149(a) of the Evidence Act upon which the learned trial judge proceeded to convict the Appellant is not justified.
2. Whether with regard to the evidence on record, it can be said that the Investigating police officer (PW3) did not investigate the instant case.
3. Whether the prosecution has not proved its case beyond reasonable doubts as required by law.
Having gone through the records I am of the opinion that one issue could decide this case one way or the other. I therefore distill the issue as follows:
Whether having regard to the circumstance of this case and the evidence adduced by the prosecution, the trial judge was right in convicting the Appellant. This is so because both the Appellant and Respondent issues are based on the totality of the evidence and the conclusion therein by the trial judge.
In his argument on the finding of the trial judge on S.149 (a) of the Evidence Act the Appellant argued that from Exhibit “E” the accused was arrested on 26th September 2005 i.e. 15 days after the offence was committed. The items found with the Appellant were items that were stolen from the incident of robbery.
The Appellant argued that it is the view of the trial Judge that Exhibit “E” that –
(a) The 3rd accused was arrested on 26th September 2005
(b) That he already had the stolen items for fifteen days before his arrest.
(c) That the robbed items was with him within 2 days of the robbery and as such raised the presumption in S. 149 (a) of the evidence Act against him.
(d) That the Appellant did not rebut the presumption of S.149 (a) Evidence Act because he did not call Samson in Evidence which makes his account unbelievable.
The Appellant then posed the question whether the evidence on record actually commends the above findings by the lower court. The Appellant agreed that it was true that he was arrested on 26th September 2005. In his evidence in chief the Appellant stated at page 49 of record as follows:
“I carried the bag to my boy’s quarters with the intention of giving it to him when he brings the receipt I did not see him until about two weeks later when two people entered my house and said they are policemen
What the appellant said was that it was about two weeks before his arrest on 26th September, 2005 that his transaction with Samson took place. He never said it was fifteen days. Two weeks is a period of fourteen days. “About two weeks” could be some days short of fourteen day or above days. But in a criminal trial as this, where there is ambiguity in relation to computation of time, the learned trial Judge ought to take the computation that is most favourable to the appellant. In other words, the learned trial judge ought to have computed the two weeks in the evidence of the 3rd accused/appellant not longer than fourteen days. The finding of the trial court that the appellant had the robbed items for fifteen days before he was arrested on 26th September, 2005 is not contained in Exhibit “E” and the evidence of the appellant only talked of “about two weeks” which, at best, was fourteen days and not fifteen days.
The above computation is very important because if we subtract fourteen days from 26th September, 2005, the answer would be twelve days i.e. 12th September, 2005. So from the appellant’s evidence his transaction with Samson took place on 12th September, 2005. the evidence regarding fifteen days in Exhibit “E” only shows the duration between when Samson and 1st accused tried to entice or deceive the appellant to go on a sinister operation with them and when Samson eventually brought the alleged generator to him to buy.
The learned trial judge also held at page 73 of the record that the items were allegedly stolen in the course of the robbery on or about 9th September 2008″.
The Appellant further argued –
In the charge itself, only count 1 bears a date i.e. 8th day of September, 2005 (see page I of the record) counts 2 and 3 bear no date o f the alleged robbery. But it is apparent all through the record of proceedings that the alleged offence took place on the 8th of September, 2005 e.g. the Police Investigation Report or proof of Evidence from pages 2 to 33 of the record consistently bear 8th September, 2005 as the date the offence was allegedly committed. Only PW1 stated in his evidence in court at page 34, of the record thus:-
“On 9th September, 2005 at about 2.30am while I was sleeping in my house somebody forced my window open and I asked whom it was. They said they are armed robbers and I should open the door…”
By this he meant the robbery took place on the 9th September, 2005. But in Exhibit “A”. PW1’s statement to the Police, he said it was on 8th September, 2005. PW2 stated at page 37 A of the record that the alleged robbery was on 8th September, 2005. Even the defence were prosecuted on the basis that the alleged robbery took place on 8th September, 2005. See 1st accused evidence under cross-examination at page 44 of the record. Also is 2nd accused’s evidence at page 45 of the record of appeal. His only witness testified and said 2nd accused slept in her house on 8th September, 2005 and could not have been among the robbers. So my Lords, when PW1 in his evidence in court gave 9th September, 2005 as the date the alleged offence was committed contrary to his statement to the Police, Exhibit “A” where he wrote 8th September, 2005 as the date of the alleged offence, he was under a mistake as the date.
The Appellant further argued that If the learned trial Judge had done a thorough judicial evaluation of the evidence before him as to when the offence was committed, he would definitely have found decisively and certainly that the office was allegedly committed on 8th September, 2005 and not resort to the ambiguous, phraseology that the items were allegedly stolen on or about 9th September, 2005 or 9th September, 2008 which he wrote.
The relevance dates lies in the above analysis regarding dates lies in the fact that if the alleged robbery took place on the 8th September, 2005 and the appellant was arrested on the 26th September, 2005 after the had possession of the alleged items for two weeks i.e. fourteen days, it means that his transaction with Samson took place on the 12th September, 2005. So between the date of the robbery, 8th September, 2005 and when he bought the items from Samson on 12th September, 2005, there were four days as against the learned trial Judge’s pervasive finding that the appellant had the alleged stolen items within two days of the robbery. The learned trial Judge completely misapprehended the facts as it related to dates. Where a trial judge. See Adejusbe v. Olosunja (2004) 6 NWLR (pt 868) 53 Ladejobi v. Oguntayo (2004) 18 NWLR (pt.904) 149.
The Appellant again asked, what was the effect of the above error on the judgment? This can be seen at page 75 of the record where the learned trial Judge said:-
“I hold the view that his admission of being in possession of the stolen items within two days of the robbery is so soon after the robbery and raises a presumption that he is one of the robbers which presumption he has not rebutted. See section 149(a) of the evidence Act…”
He then submitted that after the learned trial Judge made the erroneous finding that the appellant admitted being in possession of the allegedly robbed items within two days of the robbery, he readily invoked the provisions of section 149(a) Evidence Act against him.
It is our submission that the learned trial Judge was in grievous error the way and manner he invoked the provisions of section 149(a) of the Evidence Act against the appellant. We may need to examine that provision of the law against the background of decisions of higher courts in respect of same. Section 149(a) of the Evidence Act provides:-
“The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case, and in particular the court may presume:-
(a) 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.
The Supreme Court had the opportunity to consider the above provision in the case of Madagava v. State (1988) 5 NWLR (Pt. 92) 60 where the court held that the provision of the section applies and the presumption can be drawn where:-
(1) The accused was found in possession of some goods
(2) The goods were stolen goods.
(3) The possession was soon after the theft.
(4) There is a failure to account for the possession.
The Supreme Court in the above matter, per Karibi-Whyte JSC examined some authorities where the phrase “soon after the theft” has been applied. For ease of reference, we bother to reproduce the analysis of the learned Justice of the Supreme Court at page 84 paragraph D to page 85 paragraph C thus:-
“I have already stated in this judgment that the fact that the goods are stolen goods is an essential element in the presumption. The other essential facts are that the accused must be in possession, and the possession must have been soon after the theft. I shall explain these two expressions as they apply to the presumption.

It is essential that the stolen goods be in the possession of the accused. This must be proved beyond reasonable doubt. See R. v. Obiase (1938) 4 WACA. 16. However, where possession is not proved in the accused the presumption cannot be drawn. See R. v. Bamin (1946) 12 WACA 8 (S.L.). It is well understood in our jurisprudence that the concept of possession is invariably related to the character of the property. My brother, Oputa, JCS expresses it succinctly in the recent case of Eze v. State (1985) 3 NWLR (Pt. 13) at page 438 when he said, “Possession does not only imply physical power or custody over the res but also (and even more importantly) the power to exclude others” It includes exclusive control.
The proximity of the time of possession to the theft seems to be an essential requirement of the presumption whether the accused is the thief; or received them with knowledge that they are stolen goods – See R. v. Kwashie (1950) 13 WACA. 86 only 90 minutes, R. v. Sunday Jumbo (1960) LLR. 192 a few hours, R. v. Opara (1961) NWLE. 127, this imports the English law doctrine of recent possession. There are several cases in our courts prescribing the period within which the possession of stolen goods by the accused has been used to presume the possessor as the thief. In Nwachukwu v. State (1985) 3 NWLR (Pt.11) 218, appellant after presenting a toy gun to his victim, snatched the bag of money carried by his victim and ran away. He was chased into a house and with the assistance of the police, arrested hiding under the bed and lying on the bag of money. It was held that Section 148(a) of the Evidence Act applied since the accused was found lying on the bag containing the money subject mater of the robbery, so soon after the robbery. The presumption that accused was one of the robbers was one which on the facts ought to be drawn and was drawn.
In Eze v. State (1985) 2 NWLR (Pt.13) 429, appellant and another robbed the victim of his Suzzuki Motor Cycle at about 6.00am. They were spotted at about 5.00pm the same day at a Beer Parlour where they had taken the Motor Cycle. When the some of the cictim and a Policeman identified the Motor cycle at the beer parlour, one of the two men who robbed the Motor cycle at gunpoint escaped. The other was arrested. In his breast pocket was found the ignition key of the Motor Cycle. He said he did not know how the key got into his pocket. He was on the facts held to be one of the armed robbers.
In Salami v. the State (1983) 3 NWLR (Pt.85) 671, appellant robbed at gun point the victim of his Datsun 120Y Panel Van with registration number LA 5501 E at about 2;00pm on 15th September, 1981. At about 8.00pm, that is within six hours on the same day along Ijebu-Ode Ibadan Road, the appellant was seen driving the car, the registration number already changed to read OG 803 B. Appellant was arrested and handed over to the Police. The trial Court presumed appellant was the thief. His appeal to the court of Appeal and to this Court was dismissed.”
The Appellant submitted that in all the above cases analyzed by the learned Supreme court Justice on applicability of the presumption of section 149(a) of the Evidence Act, proximity of the times of possession to the times of the theft were related in hours. None of them was even up to one full day of 24 hours. In this instant appeal, the learned trial Judge by improper and perversive evaluation of the evidence, abridged the duration between the appellant’s reception of the alleged stolen items and the time of the theft from four days to two days and held that the appellant’s admitted receiving same within two days of the robbery.
The Appellants argued that there is no where in the record that the Appellant admitted receipt of the items within two days. He urged the court to interfere with the findings of the lower court citing the case of EMIOWE V. THE STATE (2007) 1 NWLR (Pt 641) 408 at 422 A-B.
He argued that the Appellant gave a convincing accent of how he obtained possession of the alleged robbed items in Exhibit E i.e. his statement to the police. He argued that the trial Judge closed his eyes to the evidence of PW3 the Investigation Police Officer who said they are “looking for Samson in connection with the case”. He said the law is certain that it is the prosecution that has a duty to produce evidence which could either help the defence of an accused person or completely neutralize the defence of the accused put up. Refer to AHMED V. THE STATE (1999) 7 NWLR (Pt 6 12) 641.
On this aspect of the case the Respondent argued that the trial judge was right in his finding and that it is established by evidence that there was a robbery on or about the 9/9/05. The Appellant did not deny being in possession of the robbed items but claimed he bought some from one Samson who was working with his Oga. It is argued that the conduct of the Appellant is not consistent with innocence it is submitted that there is no evidence on record that he was an innocent receiver.
Refer to R.V. USMAN (2007) 5 ACLR 44. It is also argued that the period that will constitute recent prosecution depends on the circumstance of each case. Refers to AIYEOLA V. STATE (1969) 1 ANLR 303 at 309; EZE V THE STATE (1935) 3 NWLR (Pt 13), 429 at 430. It is argued that the failure of the Appellant to call Samson or his Oga who he allegedly worked for to substantiate the claim is fatal to his case. It is urged that this court should not disturb the finding of the trial Judge.
Let me say that I have read the Record of proceedings in this appeal there is no direct evidence against the Appellant neither was he identified as one of the robbers. The only evidence of recent possession prosecution was supplied by him in that he bought the items from one “Samson” who worked for his ‘Oga’. The information were supplied by the Appellant.
It is now incumbent on the police to debunk this defence by at least interrogating his ‘Oga’ to clear the existence or non existence of Samson. I believe the police know about the existence of Samson when the Investigating Police officer testified that I quote –
“We are looking for the Samson”.
In AHMED v. STATE (1999) 7 NWLR (pt. 612) 641 at 672 E-F, in that case the vital witness who could have given evidence to clear the doubt on whether the Appellant entered the compound of the deceased or not was Mame Friday. She made two inconsistent statements to the police but the prosecution did not call her to give evidence. The doubt created by her absence was resolved against the prosecution. In AIGBEDION V. THE STATE (2000) 7 NWLR (pt 666) 686 at 700 para C-F Uwais CJN (as he then was) said:-
“It is pertinent to mention that the investigation of this case by the Police that is PW1 leaves much to be desired. The accused said in his statement Exhibit “A” that his co-tenant helped him together with the taxi driver to carry the deceased to the taxi. Attempt to trace the co-tenant was half-heartedly carried out. The mother of the so-called co-tenant stayed in the same house as the appellant and she said that the “co-tenant” lived elsewhere and used to visit her only. No further effort was made by the police to trace him- Again the appellant mentioned Johnbull in the same statement. No serious investigation about this was conducted to find out if he exited; and if so, whether he issued patient’s registration card to the appellant. It seems also that appellant was not asked by the Police to produce the card which he said was issued to him by Johnbull, if at all The taxi driver concerned could have been traced too by the Police to confirm if deceased was alive when she was put in his taxi but no evidence was given if this was done. All these are necessary steps which ought to have been taken if the prosecution were to prove their case against the appellant beyond reasonable doubt. In other words the investigation of the case was shoddy and incomplete.
Any deference put up by an accused person whatsoever whether stupid
Section 141 (l) of the Evidence Act provides that:-
“(1) where a person is accused of any offence, the burden of proving the existence of circumstance bringing the case within any exception or exemption from or qualification to, the operation of the law creating the offence with which he is charged is upon such person”.
In this case the prosecution. The Respondent tried to shift the burden of proof on the Appellant when he has done what is required of him under section 149 (a) of the Evidence Act which ends thus I quote –
“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.
(Underlined mine)
The burden placed on the accused is to show that the circumstance of possession did exist.
The learned trial Judge just picked an imaginary number of days i.e. two days after the robbery to convict the Appellant when there was no such evidence before him.
I agree with the Appellant’s counsel that in a criminal trial the court is bound to consider not only those defence specifically raised by the accused but also such evidence and – defence which favourably avails him. See Nwankwoala v. State (2006) 14 NWLR (Pt.1000) 663 at 686 paragraphs C-D per Tabai JSC. See also Ahmed v. State (1999) 7 NWLR (Pt 612) at 679 paragraph D. See also Akpabio v. State (1994) 7 NWLR (Pt 359) 635 at 671 paragraphs B-C. The law is trite that where there is doubt in the case of the prosecution, the doubt should be resolved in favour of the accused person. See Achibone v. State (2006) 14 NWLR (pt 1000) 349 at 374 paragraph F.
In Shade v. State (2005) 12 NWLR (Pt 939) 301 at 32 paragraphs B-D, Pats – Acholonu, JSC said:-
“Although the standard of proof is not that of absolute certainty (that should be in the realm of heavenly trials) the court seised of the matter must convince itself beyond all proof that such and such had occurred. It is essential to stress times without number that the expression proof beyond all reasonable doubt – a phrase coined centuries ago and even ably applied by the Romans in their well developed jurisprudence and now verily applicable in our legal system, is proof that excludes every reasonable or possible hypothesis except that which is wholly consistent with the guilt of the accused and inconsistent with any other rational conclusions. Therefore, it is safe to assume that for evidence to warrant conviction, it must surely exclude, beyond reasonable doubt, all other conceivable hypothesis than the accused’s guilt. The accused should be acquitted if the set of facts elicited in the evidence is susceptible to either guilt or innocence in which case doubt has been created.”
In Udo v. State (2005) 8 NWLR (Pt. 928) 521, while restating the principle of law enunciated in Njovens v. the state (1973) 5 SC 17, Chukwuma-Eneh JCA said at pages. 539-540 paragraphs G-A:-
Before reverting to the poser I stated above, I think this is the stage to set out the nature of the duty of the court and the prosecution have to perform in this regard. The settled principle of law of their respective duties that is, of the court and the prosecution as are pronounced in Njovens v. the state (1973) 5 sc l7 as are per Obaseki JSC to the effect that any failure of the court to consider and examine the defence (as in this case the defence of self-defence) of an accused or failure of the police to investigate or disprove such defence (as per in the instant case the defence of self-defence) is a failure to perform a vital duty and is likely to result in a miscarriage of justice. Meaning in effect that any act or omission that leads to miscarriage of justice will definitely result in a decision i.e. the conviction and sentence against an accused as in the instant case being set aside.”
The Respondent relied on ONYEGBU v. STATE (1998) 1 ANLR 386 AT 40 where the Supreme Court stated thus:
“The prosecution and indeed are by no means magicians nor are they expected to go on a wild goose chase with no sense of direction in order to investigate a bare or an alleged alibi with no facts in support thereof”.
The quoted case can not be applied to the instant case as the police claimed to be aware of the existence of one Samson and never bothered to look for the ‘Oga’ for whom the Appellant works for.
I am aware the trial Judge was persuaded by the circumstance surrounding the case before him. That not withstanding Facts to be inferred from circumstance may lead or fail to lead to circumstantial evidence that it was the accused that committed the offence.
It is however, the law that although the onus is on the accused to rebut circumstantial evidence led by the prosecution such duty is discharged by the accused on a preponderance of probabilities. See ADENIJI V. THE STATE (2001) 25 WRN 117 AT 134; MICHAEL PETER V. THE STATE (1997) 12 NWLR Pt 531 1.
From the facts in this case the trial Judge was wrong to have convicted the Appellant for the offence charged as the prosecution have filed to discharge the burden of proof placed on them. In the final analysis. I hold that the appeal is meritorious the conviction and sentence of the Appellant is set aside and in its place I enter an acquitted.
The Appellant is discharged and acquitted.

AMINA A. AUGIE, J.C.A: I have read before now the lead Judgment just delivered by my learned brother, Shoremi JCA, and I agree with his reasoning and conclusion. The fundamental question that a trial Judge is faced with in a criminal case is whether there is evidence of such a quality on every material ingredient or issue in the case that it ought to be believed. If there is and it is believed by him that is the end of the matter, provided it is manifest on the record that the trial Judge has given due consideration to the evidence by and on behalf of the defence – see Ibrahim V. State (1991) 4 NWLR (pt. 156) 399 SC and State V. Onyeukwu (2004) 14 NWLR (pt. 593) 340 where Pat-Acholunu, JSC said –
“Care must be taken that the Court should not be bamboozled into taking a course of action that produces a miscarriage of justice. In a criminal case, every item of evidence must be scrupulously examined, analyzed and weighed to assess the substantiality of the testimony and statements proffered and made”. (Italics mine)
Besides, it is not for the accused person to adduce evidence to create a reasonable doubt in the case of the Prosecution; it is for the Prosecution to prove its case against the accused person beyond reasonable doubt.
There is no question in this case that the Respondent failed to discharge the statutory burden on it to prove the case against the Appellant beyond reasonable doubt, and the lower Court was wrong to have convicted the Appellant on the insufficient evidence before it.
It is for this and the other reasons set out in the lead Judgment that I also allow the Appeal, and set aside the conviction and sentence passed the Appellant. In its place, I enter a discharge and acquittal.

OYEBISI FOLAYEMI OMOYEYE, J.C.A: I have had a preview of the lead judgment of my learned brother, G.O. Shoremi, J.C.A in this appeal. I agree with the reasons advanced therein to arrive at the conclusion that this appeal is meritorious and should be allowed.
It is a well established legal principle that, before an accused is to be tried, he is presumed until he is proved guilty. This is the constitutional presumption of innocence under Section 36(5) of the Constitution of Nigeria, l999. Therefore, an accused person is presumed innocent until proved guilty by the prosecution and he is not expected to prove his innocence. This Court recently restated this legal position in the case of: Abegunrin v. State (2010) 10 W.R.N. p. 160 at p. 169, lines 38 – 42 Pet Thomas, J.C.A., that:
The cause of justice in criminal and even civil cases is never one sided. In criminal matters, it is not just to hear the prosecution’s case alone. The court must look at the defence of the accused or suspect, no matter how flimsy or stupid or foolish the defence raised may be.
Furthermore, in the said case of: Adegunrin v. State supra, at p. 175, lines 10 – 20, C.N. Uwa, J.C.A., had the following to say:
An accused is presumed innocent until proved guilty, he is not to prove his innocence, therefore once he raises a defence, such defence must be considered along with the totality of the evidence holistically by relating them to each other to determine whether there is a reasonable doubt in the particular circumstances of the case, such defence ought to be considered, no matter how improbable or stupid it may seem. See Opeyemi v. State (1985) 2 NWLR (Pt. 5) 101 and Omoregie v. The State (2008) 8 WRN 1; (2008) 18 NWLR (Pt. 1119) 464…
In the instant matter, there was a doubt in the case of the prosecution, which the learned trial Judge had the legally bounding duty to resolve in favour of the Appellant.
I also discharge and acquit the Appellant.

Appearances

E.F. Osifo Esq.For Appellant

AND

For Respondent