Olufemi Babalola & Ors Vs The State (1989)
NNAEMEKA-AGU, J.S.C.
Before an Oyo State High Court holden at Ibadan. Olufemi Babalola, Mufu Talawo, Darlington Omole, Joseph Aiyejare and Adefolaji Aiyefare were charged together on a two count information. Olufemi Bahalola and Mufu Talawo were charged on the 1st count that, on the 20th day of May, 1981, they, with intent to defraud, forged Arab Bank of Nigeria limited Bank Draft No. 021731 for N15.900.00 purporting the same to have been issued by Honey Gay Nigeria Limited. Ilorin, and they thereby committed an offence contrary to section 339 and punishable under section 401(2)(g) of the Criminal Code, Laws of Western Nigeria, 1959.
All the five accused persons were also charged together on the second count in that, they, with intent to defraud, obtained 8 rolls (800 square metres) of carpet from Carpet Royal (Nigeria) Ltd .. Ibadan. (to be hereinafter called Carpet Company) by falsely pretending that they were sent and authorised by Honey Gay Nigeria Limited to receive the said carpets.
Evidence called at the trial shows that the said bank draft issued from a non-existent bank. The 2nd accused had on the 16th of May, 1981, called on 5 P.W.. John Mastoroudes, the General Manager of Carpet Royal Nigeria Ltd., the carpet company and applied to be appointed a distributor of the company. 5 P.W told him he could not be so appointed until he had done good business with them for about 12 months. On the 20th of May, 1981, the 2nd accused came to him again in company of four other men and produced a draft of N15.900.00 (tendered as Exh. D1) for 8 rolls of carpet.
The 1st accused was directed to the Cashier, Isaac Oluwole Banjo (7 P.W.), who prepared a cash sales invoice on the strength of the draft (Exh. D1). A copy of the cash sales invoice was tendered as Exh. O, the original of which was handed over to the 1st accused. Armed with Exh. O, the 1st accused and his companions one of whom he introduced as his director, went to Lamidi Shittu (4 P.W.). the Store-Keeper and Controller of the Carpet Company. On the strength of Exh. O, 4 P.W. prepared a delivery note, Exh. C, with which the accused persons took delivery of the 8 rolls of carpets in a Mitsubishi bus No. KD7838A, 4.P.W. identified the 1st and 4th accused as among those to whom he delivered the carpets
The bank draft, Exh. D1, was paid by the Carpet company into their hank account. But sometime later, the draft was returned unpaid with the indorsement “Bank Not Existent”
At this point, the Carpet Company reported the matter to the police. On the arrest of the 1st and 2nd accused persons, they volunteered statements. Exhs. A and B respectively, to P.W.1, Inspector Ayeni. As Exh. A., appeared to be confessional, 1st appellant was taken by Inspector Ayeni to an A.S.P. before whom he confirmed the statement. Exh. B appears to be confessional too. Both statements gave details of the part each of them played in the “business.” The police executed some search warrants in the houses of some of the accused persons. In the house of the 1st accused., P.W.6, Inspector Omole executed a search warrant, Exh. E, and recovered Exhibits F-F4, facsimile of bank drafts similar to Exh. D1. They were found in a beer carton ill the corridor of 1st accused’s house. In the house of the 3rd accused he found a roll of carpet which was identified by P.W.3, Mr. Godis, the Production Engineer to the Carpet Company, as their own.
6 P.W. also executed a search warrant in the house of the 4th accused. There he found Exh. J .’97J5 ’97 pieces of carpet already laid on the floor. They were also identified by P.W.3, Mr. Godis, as of the Carpet Company’s manufacture. In the 4th accused person’E2’80’99s statement, Exh. Q, he said he bought it from the 2nd accused in the night of 11/6/81. The 2nd accused had offered to sell it to him at the rate of N20.00 per square metre, that is N600.00 for 20 square metres. But he actually paid him N200.00 that night and later paid him N100.00 again. No body witnessed the transaction, as his wife had gone to work, he said.
Also on execution of a search warrant in the house of which Exh. C, a piece of carpet also identified by Mr. Godis as of the Carpet Company’s manufacture was recovered. In his statement, Exh. M., the 1st accused stated that he bought it from the 2nd and 3rd accused persons at the rate of N40.00 per yard. He said he paid N240.00 for seven yards. They did not issue him with any receipt because they said they forgot the receipt book at Ibadan, he claimed.
The police later recovered the carpet in his house. At the close of the case for the prosecution, none of the accused persons testified in his own defence. Only the 2nd accused called one Corporal Ishola to tender a previous statement made by him as Exh. ‘S’ in which he had earlier denied the charge. Thereafter counsel for all sides addressed the court.
At the conclusion of the hearing, the court, Ayorinde, J., carefully analysed all the evidence. He held that the first count was not proved against the 1st and 2nd accused because no witness had come forward to testify that Honey Gay Nigeria Limited, Ilorin, did not exist or that, if it existed, it did not authorise the issuance of Exh. D1, nor that it did not authorise the accused persons to collect the 8 rolls of carpet on its behalf.
It follows that the false pretence averred in the charge was not proved. However he held that as it had been shown that the draft Exh. D1 was forged as having been issued from a non-existent bank, stealing by trick had been proved. He therefore invoked his powers under section 174(3) of the Criminal Procedure Act and convicted each of the accused persons of stealing contrary to section 324(1) and (3) of the Criminal Code. He then sentenced the 1st, 2nd, and 4th accused to 4 years imprisonment each and 3rd and 5th accused persons to 18 months imprisonment each.
On appeal to the Court of Appeal Ibadan Division, that Court, coram: Agbaje, J.C.A. (as he then was) Kutigi and Sulu-Gambari, JJ.C.A., dismissed the appeal. The 1st, 3rd and 4th accused persons have appealed further to this court. It does not appear from the record that the 2nd and 5th accused persons appealed. I shall, however, for reasons of consistency, refer to the 1st accused as the 1st appellant, the 3rd accused as the 3rd appellant, and the 4th accused as the 4th appellant.
The 1st and 4th appellants filed their briefs. The 3rd appellant did not file any brief. It does appear that he is no longer interested in pursuing the appeal. I have nevertheless given a careful consideration to his case and am satisfied that the learned trial Judge was right in convicting him and the Court of Appeal right in confirming his conviction. The appeal of the 3rd appellant was, however, struck out.
The two issues framed for determination on behalf of the 1st appellant in his brief were whether:
“(a) the prosecution discharged its burden of proof beyond reasonable doubt that the appellant knew that Exh. D1 was a forged document, and
(b) it was safe to convict the appellant of stealing when there was no proof before the court that he presented Exh. ‘D’ fraudulently.
The respondent agreed that these were the issues for determination.
Learned counsel on behalf of the 1st appellant pointed out that the learned trial Judge decided to discharge and acquit the 1st and 2nd appellants on the 1st count because no witness came forward to testify that Honey Gay Nigeria Limited, Ilorin, did not issue or authorise the issuance of Exh. D1.
He argued that by the same token, for failure to call any evidence about/from Honey Gay Nigeria Limited, he should have discharged the 1st appellant on count 2 also. He pointed out that the Court of Appeal was right to have observed the inconsistency in the verdict, but wrong to have gone ahead to confirm the conviction in count No.2. In any event, counsel contended, there is nothing to show that the 1st appellant knew that Exh. D1 was a forgery or that he took the carpets fraudulently.
He submitted that from all these the prosecution failed to prove the case against the 1st appellant beyond reasonable doubt. So the Court of Appeal was wrong to have affirmed the conviction. In support of his submissions counsel cited the following cases-
Oteki v. A-C. of Bendel State (1986) 2 N.W.L.R. (Part 24) 648.
Clark v. The State (1986) 4 N.W.L.R. (Pt.35) 381.
Adio v. The State (1986) 2 N.W.L.R. (Pt.24) 581.
Onah v. The State (1985)3 N.W.L.R. (Pt.12) 236.
Okafor v. The State (1965) N.M.L.R. 20.
On the 2nd issue, he submitted that the evidence before the court of trial was not sufficient to sustain a case of stealing. It was not correct that the 1st appellant was one of the persons to whom P.W.4 released the carpets, as held by the court below, he contended, because P.W.4 could identify only the 2nd and 3rd accused persons.
He therefore submitted that the Court of Appeal speculated and substituted its own views for evidence not before the court, contrary to the case of Adelenwa v. The State (1972) 10 S.C. 13: He submitted that there was lacking the proof of the necessary mens rea to sustain a case of stealing. Having been discharged on a count of forgery, this was bound to negate a finding of stealing, as there was then an absence of fraudulent intent: Onabamiro v. The State (1968) All N.L.R. 101.
In her brief, the learned counsel for the respondent submitted that the prosecution discharged the burden of proof beyond reasonable doubt and that the 1st appellant knew that Exh. D1 was forged. She drew attention to the evidence of 5 P.W., John Mastoroudes, which showed that the 1st appellant was one of those who came to the Carpet Company to present the draft, Exh. D1, and that the draft was later shown to have come from a non-existent bank.
Also the evidence of 6 P.W., Jeremiah Omole, which showed that other bank drafts Exhs. F-F4, facsimile of Exh. D1, were, on execution of a search warrant, found in the house of the 1st appellant. Learned counsel drew attention to other pieces of evidence which clearly implicated the 1st appellant with the offence charged.
I wish to begin my consideration of the case for the 1st appellant by making some observations.
First:- inspite of the massive evidence against the 1st appellant in the trial court, he elected not to give evidence. He was, of course, within his constitutional right: see section 33(11) of the Constitution of the Federal Republic of Nigeria, 1979. But there is nothing in that subsection to preclude the trial court from drawing any inference which the quantum and quality of evidence called against such an accused person warrant.
Hence whereas prudence dictates that an accused person should not assist the prosecution which has failed to prove every material ingredient in the case against him by giving them the opportunity of extracting it in the witness box under the fire of cross-examination, it is a reckless harzard to insist on the exercise of that right when the prosecution has made out a prima facie case which calls for the accused person’s explanation but, as did the 1st appellant in this case, he elects not to offer any evidence in explanation.
Secondly: The appellant has, in this court, abandoned the more fundamental issue as to whether or not he had due notice of every ingredient of stealing of which he was convicted in place of the offence of obtaining by false pretences of which he was charged. Having been over-ruled in the Court of Appeal on the point, he does not pursue it as an issue in this court. It is my view that that court rightly applied the principles in the case of Okonofua v. The State (1981) 6-7 S.C. 1 at pp.25-26.
That is that section 174(2) of the C.P.A. can be raised at any time before the stage of judgment is reached, but if the accused person fails to make use of the ample provisions in law to enable him answer the charge and meet the anticipated verdict, he cannot complain afterwards of want of due hearing. It follows therefore that this appeal will be decided on the factual issue as to whether there was sufficient evidence to sustain the verdict.
Thirdly, as pointed out by the learned counsel for the respondent, what the Court of Appeal said did not amount to an approval or an endorsement of the discharge of the 1st and 2nd appellants on the 1st count by the learned trial Judge. Rather, they expressed their surprise that they should have been discharged inspite of the trial Judge’s findings that they forged Exh. D1. Their Lordships even regretted that the respondent did not appeal against the acquittal. In that state of the facts, I do not think that the appellants can make much out of the acquittal of the 1st and 2nd appellants on count one.
What was therefore the evidence upon which the 1st appellant was convicted of stealing In the first place, the 5th P.W., John Mastoroudes, the General Manager of the Carpet Company, testified that on the 20th of May, 1981, the 1st appellant came to the Carpet company with the 2nd appellant and other men and negotiated for 8 rolls of carpet and purportedly paid therefore with a bank draft Exh. D17 P.W., Mr. Banjo, the Company’s cashier also confirmed dealing with the 1st appellant in the Carpet Company on that day. The draft was later returned unpaid and marked “Bank Not Existent”. Following the arrest of the 1st appellant, among others, P.W.6, Inspector Omole, executed a search warrant Exh. E, in the house of the 1st appellant. As a result, he recovered Exhs. F to F4 – facsimile of bank drafts which are very much like Exh. D1, in a beer carton in first appellant’s corridor. P.W.6 stated that when he recovered Exhs. F-F4, the 1st appellant prostrated and begged him not to take the Exhibits away, but he refused. The witness also stated that when the 2nd accused was later arrested, the 1st appellant attacked him (2nd accused) and accused him of having exposed indiscreetly the whole affair.
In addition to these glaring facts the 1st appellant volunteered a statement, Exh. A, in which he not only confessed to the crime but also gave details of the parts played by himself and other culprits in the execution of their nefarious plan. He owned up the finding of Exhs. F-F4, fake Arab Bank drafts for various sums ranging from N3,200.00 to N20,611.80k. He told the 2nd appellant to go and buy the fake draft, Exh. D1 in the black market, that is at Bristol Hotel Lagos. The 2nd appellant bought eight fake drafts, Exh. D1, to the Cashier. P.W.7. One roll of the eight rolls of carpet was later dropped in his house. All these facts were revealed in his confessional statement. Exh. A. He confirmed this statement before a superior police officer.
There can be no doubt that all this evidence was credible, was believed by the learned trial Judge, and confirmed by the Court of Appeal. The facts amount to stealing by trick in that he and his collaborators in crime used Exh. D1 which was a fake bank draft to induce the Carpet Company to part with possession but not the ownership of the 8 rolls of carpet, valued at N15.900.00 believing that the draft was genuine.
For, I must note that under section 399 of the Criminal Code of Western Nigeria, applicable in Oyo State, forgery is defined as making a false document or writing knowing it to be false, and with intent that it may in any way be used or acted upon as genuine any where to the prejudice of any person, or with intent that any person, may, in the belief that it is genuine, be induced to do or refrain from doing any act any where.
Thus, unlike under English law, it includes a document which tells a lie as well as one which tells a lie about itself (R v. Ribon (1869) L.R.I C.C.R. 200). Also the definition in section 399 includes documents made with intent to deceive as well as those made with intent to defraud – again unlike in England (see Re London & Globe Finance Corporation Ltd. (1903) 1 Ch. 728 at p. 732-733). When in the instant case 1st appellant told the 2nd appellant to go and buy Exh. D1, a bank draft at the back of Bristol hotel which he, no daunt, knew was not a bank for purposes of their using it to buy carpets from the Carpet Company, which would innocently accept it as genuine, the two alternative intents were present. There were the intents to defraud and that to deceive.
The mere production of Exh. D1, which not only told a lie to wit: that it issued from an existing bank, but also told a lie about itself – that it was a genuine and duly issued bank draft – made it clearly a forgery under section 399. For those were the constituents of the intent to defraud. Also, the moment it was knowingly used to induce the Carpet Company to part with their eight rolls of carpets on the belief that Exh. D1 was a genuine bank draft, the element of intent to deceive was complete. So, the two intents were present. One would have been enough.
There can be no doubt that the 1st appellant could not be convicted of obtaining by false pretences because the pretences averred on the charge were not proved. Without calling Honey Gay Nigeria Ltd., it could not be proved. But, as it is not disputed that the learned trial Judge was entitled to consider the alternative verdict of stealing and that the 1st appellant had due notice of the fact that that was being considered, it cannot be doubted that on the above facts, the 1st appellant and his accomplices obtained possession of the eight rolls of carpets animo furandi – in circumstances in which the Carpet Company wanted to part with the possession and not with the ownership of the carpets.
The manner of taking, constituted stealing by trick, as held by the learned trial Judge and confirmed by the Court of Appeal. See R v. Mustafa Adegboyega (1937) 3 W.A.C.A. 199, for, consent in such a case is consent freely given and not one induced by trick, threat of violence or detriment or by fraud. See John Edo & Anor. v. C. O.P. (1962) 1 All N.L.R. 92, Oshinye v. C.O. P. (1960) 5 F.S.C. 105. Hence in the case of Murray Okechukwu v. The Queen (1964) 1 All N.L.R. 47 this court held that a person who included in his pay sheet some names of fictitious labourers and thereby got money from the Town Council was guilty of stealing and not obtaining by false pretences. I do not see any difference in principle between that case and the instant case.
The learned counsel for the appellant has argued that it was not proved that the 1st appellant had the necessary mens rea for the offence.
In my opinion this is a ridiculous submission. A man who decides to go to purchase carpets with a fake bank draft procured from the black market behind Bristol Hotel. Lagos. who has stored up more of such fake notes for such future business. who had to attack the 2nd appellant for revealing the details of the so-called business and who knew that the fake bank draft he used was drawn on a non-existent bank cannot but intend to steal the carpets which he purported to buy with the draft.
I hold that the appeal of the 1st appellant is completely unmeritorious. I shall now deal with the appeal of the 4th appellant. As I have stated, the 4th appellant had a brief filed on his behalf by one Yaya Aliyu who was not in court. The wife of the 4th appellant in court informed us that she told the lawyer that the case was coming up, but that he said he was not interested. We therefore decided to treat the appeal as fully argued in the brief, in accordance with Order 6 rule 8(6) of the Rules of this Court.
The so-called brief on behalf of the fourth appellant is difficult to comprehend because of the alarming poverty of the language in which it was written and the palpable sterility of its contents. Counsel will do well to appreciate that the set-up, language, contents and arrangement of his client’s brief are the surest indices of his competence as counsel.
Counsel has a duty, besides, to check the typographical errors of his clerk as well as all grammatical blunders, whether of his own or of his clerk.
As much as could be distilled from the ‘brief’, it appears that the main complaints on his behalf were that the court below used the extra-judicial statements of the 1st and 2nd appellants, who did not testify, to convict the 4th appellant and that that court wrongly used the doctrine of recent possession of the carpets to the prejudice of the 4th appellant.
If the 1st and 2nd appellants had testified or otherwise adopted their statements Exh. A & B, there would have been no doubt that the 4th appellant participated fully in the commission of the crime charged. For it appears clear from these statements that he agreed from the beginning to join in the business. He was one of those who visited the premises of the Carpet Company on the 20th of May, 1981 and it was he and the 3rd appellant who went and hired a lorry for the conveyance of eight rolls of carpet from the factory, dropped one in the house of the 1st appellant and conveyed the rest to Lagos. I must, however, warn myself that Exhs. A and B which are extra judicial statements of co-accused persons who did not testify at the trial are no evidence against the 4th appellant. See R v. Ajani & Ors. (1936) 3 W.A.C.A. 3. Also R v. Danso (1950/1951) 13 W.A.C.A. 16.
To that extent, learned counsel on his behalf is correct, in theory at any Crate. But the brief failed to point out where the extra-judicial statements of the co-accused were used to convict the 4th appellant. I could not find any myself. Be that as it may, assuming but not agreeing that there was such a lise, I must treat it as a case of wrongful admission of evidence. It can only result his acquittal if there was insufficient other lawful evidence to sustain the conviction: See section 226(1) of the Evidence Act; also R v. Thomas (1958) 3 F.S.C. 8; [1958] SCNLR 98.
But having said so, it is, I believe, the law that any real evidence discovered as a result of statements of co-accused, in this case, Exhs. A anti B would he admissible, but must be interpreted without reference to Exhs. A and B. See section 29 of the Evidence Act. Also R v. Barker (1941).2 K.B. 381. See also: Customs & Excise Commissioners v. Harz & Power (1967) 1 A.C. 760. Now obviously because of the revelations in Exhs. A and B. 6 P.W, Inspector Omole, executed a search warrant, Exhibit H, in the house of the 4th appellant. In consequence Exhibits J-J5. pieces of carpets, already laid on 4th appellant’s floor, and which were identified by the Production Engineer of the Carpet Company. Mr. Godis (P.W.3) to be the Company’s product, were discovered in the house of the fourth appellant. It is my considered view that, subject to any explanations, Exhs . .1 to 15 are material evidence which the court below were entitled to take into account in deciding whether the 4th appellant was a party to the crime charged.
Now, when the 4th appellant was charged and cautioned by the Police, he volunteered a statement, Exh. Q. to 9 P.W .. Sergeant Adeyemo. In Exh. Q. he stated that he bought Exhs. J-J5 from the 2nd appellant on 11/6/81. According to him
On 11/6/81 in the night one Mufutau Talawo came to my house alone that he is now selling Rug and he had used the one he wanted to use but it still remain, he said that if I like to use he would sell my own for me at the price he bought it from the Company. I told him I had no money to buy carpet, he later told me that he would sell the carpet for me at the rate of N20.00. I told him that I will buy and both of us check the one that will be enough for my parlour and it is 20 metres and the amount is N600.00. I told him to go and bring the carpet. On that 11/6/81 in the night Mufutau Talawo brought the carpet to my house and I gave him N200.00 but my wife has gone to work on that day nobody with me in the house when I bought the carpet.
He said he later paid him another sum of N100.00, bringing the total amount which he claimed to have paid to N300.00.
I must pause here to make some observations on Exh. Q. as it stands. For, in my view it raises a number of questions
1. Was 2nd accused a seller of rugs or a user who was then selling some left-over rugs
2. Why was the whole transaction of buying and selling carpets conceived, negotiated and completed in the night And there was no receipt, no other witness but just two of them
3. For a man who in his own words had no need for a carpet and did not budget for it, why the hurry And the buyer was only now, for the first time knowing the seller as a Carpet seller
4. Why should the carpet seller be so anxious as to offer to dispose of his goods at his own purchase price, only to end up selling it for less than the purchase price
5. Is the total cost of 20 metres of carpet at N20.00 each N600.00
Though the 4th appellant ended up paying only N300.00 which is far less than the ex-factory price for the 8 rolls (800 square metres).
I shall bear these life questions in mind when I shall consider the acceptance of the case for the prosecution by the learned trial Judge.
If the only evidence before the court of trial were only Exh. Q, the learned trial Judge might have found it difficult, inspite of the above queries, which might amount only to suspicion, to find against the 4th appellant. For, suspicion, no matter how strong, cannot amount to proof. See Abieke v. The State (1975) 9-11 S.C. 97. No doubt the onus was on the prosecution to prove its case beyond reasonable doubt, including displacing the claim of the 4th appellant in Exhibit Q that he purchased the carpets and was neither a thief nor a receiver.
In the discharge of this important duty, the prosecution, inter alia, called led 4 P.W., Lamidi Shittu, the store and stock controller of the Carpet Company. Part of the record of the court proceedings runs thus:
“I can now identify two of the five men who came to our factory to buy carpets. They are the 2nd and the 3rd accused. CROSS-EXAMINATION BY CHIEF OKUEYUNGBO:- NILL CROSS-EXAMINATION BY MR. BAYO AZEEZ:- I mentioned in my statement to the police that two of the persons who came to me had tribal marks. They are the 2nd and the 4th accused in court. The 4th accused had Auchi tribal marks. I mentioned that these two accused had tribal marks. I did not mention the particular type of tribal marks they have in my statement to the police”.
(Italics mine).
Surprisingly, Mr. Aransi who appeared for the 4th appellant did not ask a single question in cross-examination inspite of the very damaging evidence of 4th P.W. against his client. The learned trial Judge in his well reasoned judgment held as follows:
“The 4th prosecution witness had also identified the 2nd and 4th accused as some of the persons who came to his store on 20th May, 1981 to collect the carpets being now said to have been obtained by false pretences. That witness – the cashier in his evidence aid he could identify the 2nd and 3rd accused as two of such men but to point later and state that he could recognize the 2nd and 4th accused by the tribal marks on them. Witness referred to the tribal marks of the accused as Auchi type tribal marks. Nothing contrary to the witness’s evidence and observation as related by him has come from any other scene in these proceedings”
Later he stated that he believed the evidence of this witness, among others. Looking at the evidence as it relates to the 4th appellant there are good reasons why it should be believed:
First: After 4 P.W. stated in effect that he made a mistake to have mentioned the 3rd appellant instead of the 4th, learned counsel on his behalf did not as much as cross-examine 4 P.W. or even suggest to him that he was lying or that his testimony on the point was an afterthought. On principle, where a witness called by the prosecution gives relevant and material evidence, counsel for an accused has a duty to cross-examine on it or at least indicate that he does not accept it as true. See on this the case of Walter Berkley Hart (1932) 23 C.A.R. 212 at 207; Brown v. Dunn, 6R. 67, 76-7, H.L. 4. If he fails do so, then, unless the evidence itself is inadmissible, illegal, or not worthy of belief, particularly where the defence does not produce another piece of evidence which renders the particular evidence in question improbable, then a court of trial is entitled to accept such evidence as true.
Secondly: In this case, the 4th appellant did not testify at all in his defence or produce any other evidence to the contrary of what the 4 P.W. stated above. In the above circumstances I cannot say that the learned Judge who watched and listened to the 4 P.W. testify was wrong to have believed him on the point that 4th appellant, whom he noted had Auchi type of tribal marks was one of those who, on 20th May, 1981, came to the premises of the Carpet Company and paid for the 8 rolls of carpet with the fake bank draft, Exh. D1, and collected the carpets.
The Court of Appeal held that the above evidence of 4 P.W. was contradictory.
This view, I believe, resulted from a wrong extract from the said evidence. Quoting part of the evidence of 4 P.W., as-
Indeed the 2nd and 3rd accused have such marks,
the learned trial Justices held that the evidence was contradictory. If that were the evidence, their Lordships would have been right. But, with respects, what is on record at page 65 at lines 34 to 35 is:
Indeed the 2nd and 4th accused have such marks.
This error obviously led to the different view which the Court of Appeal expressed on the point. It was this their view of the evidence that led them to go on the doctrine of recent possession. Perhaps their Lordships were right to have held the view that the theory of recent possession applied to carpets which were removed from the Carpet Company’s stores on 20th May, 1981 and from Exh. Q got into the 4th appellants possession on 11th June, 1981 – some three weeks later, although the search warrant was not executed until 23rd August, 1981.
But I am of the view that the 4th appellant’s possession of the carpets should more properly be looked at from the point of view of the fact that he was one of those who by trick on the strength of the fake bank draft, Exh. D1, on the 20th of May, 1981, took away from the stores of the Carpet Company eight rolls of carpets of which Exhs. J-J5 form a part. Looked upon from these facts, it will be seen that the Court of Appeal was right to have confirmed his conviction of stealing by trick by the Court of trial. I therefore agree with their confirmation of the judgment of Ayorinde, J., though for a different reason.
The appeal of each of 1st and 4th appellants therefore fails and is dismissed. I affirm the judgments of the High Court and the Court of Appeal.
ESO, J.S.C.: I adopt the facts as stated in this case by my learned brother, Nnaemeka-Agu. J.S.C., whose lead judgment I had the honour of a preview.
I have also gone through the reasoning of my brother and I have decided to adopt them for dismissing as he did the appeals of the first and fourth appellants.
I abide by the order made by my learned brother Nnaemeka-Agu, J.S.C.
Other Citation: (1988) LCN/2393(SC)
