Sebastian S. Yongo Vs Commissioner Of Police (1992)
LawGlobal-Hub Lead Judgment Report
KUTIGI, J.S.C.
The appellants and two others Hangeior Alagh and Simon Atule were at the Senior Magistrate Court, Vendeikya, Benue State, charged as follows
“Count I:
That you Hangeior Alagh on or about the 21st day of March, 1988 at Abakaliki, having been entrusted with property to wit: A peugeot 504 station Wagon not Registered with Chassis No. 4111248 valued N49,000.00 by one Alhaji Veleshe committed Criminal Breach of Trust in that you either Misappropriated; Con-verted it to your use, used it or disposed of it not in accordance with the terms of the trust dishonesty and that you thereby committed an offence punishable under section 312 of the Penal Code.
Count II:
That you, Simon Atule, Sebastine Yongo and Isaac Omishan, on or about the 21st day of March 1988 at Gboko dishonestly received or, retained stolen property to wit: a Peugeot 504 Station Wagon white in colour With Chassis and Engine Nos. 4111248 property of one Alhaji Veleshe Shior knowing, or having reason to believe the same to be stolen property, and that you thereby committed an offence punishable under section 317 of the Penal Code.
Count III:
That you, Simon Atule, Sebastine Yongo and Isaac Nomishan on or about the 21st day of March, 1988 at Gboko voluntarily assisted in concealing in dispos-ing of or making away with property to wit: Peugeot 504 Station Wagon white in colour, not Registered with Chassis/Engine No. 4111248 property of one Alhaji Veleshe Shior which you know or had reasons to believe to be stolen property and that you thereby committed an offence punishable under section 319 of the Penal Code.”
Hangeior Alagh who was only charged with the offence of Criminal Breach of Trust in count one pleaded guilty. He was convicted and sentenced. The appellants were convicted of the charge of the dishonestly receiving or retaining stolen property knowing or having reason to believe same to be stolen property under the second count. They were each sentenced to a fine of N300.00 or to one and a half years imprisonment in default of payment. They were however acquitted of the third count of the charge. Simon Atule was acquitted of the second count but convicted under the third count and sentenced.
The facts of the case can be summarised briefly as follows:
On the 21st day of March, 1988, one Alhaji Veleshe Shior who testified as PW1 at the trial, purchased a new Peugeot 504 at Abakaliki forthe sum of N49,000.00. He handed overthe vehicle together with the keys and other particulars to his driver Hangeior Alagh (the 1st accused) to drive to his home town in Gongola State. On his way to Gongola State, Alagh left his route and deviated to Gboko where he handed the said vehicle with the particulars to Simon Atule (the 2nd accused) with instruction to sell same. Atule said he sold the vehicle to Isaac Nomishan (the 4th accused now the 2nd appellant) who was introduced by Sebastine Yongo (the 3rd accused, now 1st appellant).
According to Atule even though there was no final agreed price, he took a deposit of N10,000.00 because of other pressing commitments of the owner (Alagh) to pay custom duties at the border and also to liquidate a debt owed by him. When Alhaji Shior waited in vain without seeing his driver (1st accused) in Gongola State the matter was reported to the police. 1st accused was first arrested and he assisted in the arrest of the 2nd accused. The appellants were also later arrested. The vehicle was discovered in the possession of the 4th accused (2nd appellant). It was found locked up in his garage.
The appellants admitted that the vehicle was brought to them by the 2nd accused on behalf of his brother as a pledge for an advance of N10,000.00 at an interest of N2, 000.00 for a period of two weeks. The 2nd appellant said he prepared the pledge agreement (Exhibit K) for the parties.
In a reserved judgment the learned trial senior Magistrate believed and ac-cepted the evidence of the prosecution witnesses and the evidence of the 1st and 2nd accused (co-accused persons) that the 4th accused (2nd appellant) obtained the vehicle by an outright sale through the 3rd accused (the 1st appellant). He further held that the circumstances of the sale of the vehicle were such that would have put the appellants on notice that they were buying a stolen vehicle. He disbelieved the appellants completely. The appellants were therefore convicted and sentenced as stated above.
Dissatisfied with their conviction the appellants appealed to the High Court of Benue State where their appeals were dismissed. They then appealed to the Court of Appeal, Jos Division, where their appeals were equally dismissed. The appellants still dissatisfied with the judgment of the Court of Appeal have now appealed to this court. Each of the appellants filed eight grounds of appeal which are identical in form and contents. I do not need to reproduce them here. In accordance with the rules of court counsel filed and exchanged briefs of argument. The appellants filed a joint brief. Counsel also made oral submissions in court at the hearing. Chief Akinrele, S.A.N., for the appellants has formulated the issues for determination in this appeal as follows-
“(a) Was there any proof that the vehicle, the subject matter of this charge, was stolen property?
(b) Could the Court of Appeal, substitute evidence on the record on which there was no finding as to its acceptability by the lower court?
(c) Was the Court of Appeal right in holding that the prosecution had proved this case beyond reasonable doubt when the trial Magistrate made use of inadmissible evidence to discredit the evidence of the appellants, as well as its own comparison of signatures on a disputed document?
(d) Was the Court of Appeal right in holding that the appellants were guilty when the deductions from the facts in this case were ambivalent and do not necessarily point to their guilt?”
From the above issues it is clear to me that the gravamen of appellants complaint in this appeal is that there was no proof either that the motor vehicle (Exhibit D) subject matter of the charge, was a stolen property or that the appellants knew or had reason to believe that the vehicle was stolen property.
Arguing issues (a) & (b) together learned counsel submitted that although the Court of Appeal agreed that the burden was on the prosecution to prove that the motor vehicle the subject matter of the charge was stolen property, it went ahead to hold that there were other evidence before the learned trial Magistrate which could be used but which he did not use to sustain the findings and that it would not have the right to reverse the findings of the senior magistrate. That the Court of Appeal said the onus is on the appellants to show that without the evidence wrongfully admitted the decision would have been otherwise. It then proceeded to review the evidence of the prosecution witnesses trying to show that it was a reasonable inference that the vehicle was stolen property. It was submitted that this was not a case of evidence wrongfully admitted but a case where the learned trial Magistrate made no finding at all because he wrongly assumed that it was not in dispute.
He said although the 1st accused (Alagh) pleaded guilty to the first count of the charge, he did not give evidence anywhere and his conviction could not be a substitution for proof that the vehicle was stolen property. He referred to page 48 of the record lines 1 – 5 and 24 – 30 and submitted that the, learned trial Magistrate did not consider the acceptability or otherwise of any particular evidence of the prosecution witnesses because of the wrong notion that there was no dispute as to the vehicle being stolen. He said the appellants having pleaded not guilty put the onus on the prosecution to prove every ingredient of the charge and that to that extent there was a dispute.
It was further submitted that the Court of Appeal could only have made use of the evidence of PW1 if the trial Magistrate had accepted his evidence as true and not merely because the evidence was recorded. The Court of Appeal, he said, was wrong to have relied on the evidence of PW1 on which there was no finding. He said in the absence of proof of theft, the presumption under section 148 of the Evidence Act was not applicable.
Responding, Mr. Ulegede learned counsel for the respondent submitted that there was in fact a finding on the issue of whether the motor vehicle (Exhibit D) was a stolen property. He referred to page 48 of the record lines 17 – 29. It was also submitted that the learned trial Magistrate rightly referred to the definition of stolen property in section 316 of the Penal Code and inferred from the plea of guilty by the 1st accused, that the car was a stolen property. He said before the plea of 1st accused was recorded, there was evidence of PW1 showing that he as the owner of the car, gave it together with the particulars, to 1st accused/convict at Abakaliki to drive to Gongola State. This was not done. Instead 1st accused drove the car to Gboko and transferred Exhibit D to the appellants. He said there was therefore evidence before the trial court upon which he could make the finding he made. It was contended that there was only one trial of all the four accused persons including the appellants, even though the 1st accused pleaded guilty to his own charge. It was submitted also that the learned trial senior Magistrate in his judgment stated that he accepted and believed the evidence of all the prosecution witnesses including PW1. He referred to the record pages 53 lines 1 – 5, 54 lines 30 – 35. He said the Court of Appeal was therefore right to have drawn inferences from the credible and accepted evidence at lower court particularly in coming to the conclusion that Exhibit D was stolen property. He referred to section 16 of the Court of Appeal Act 1976 and Order 1 rule 20 of the Court of Appeal Rules, 1981. The learned trial senior Magistrate dealt with this issue on page 48 of the record lines 17 – 29 where he said
‘The first issue that needs to be resolved is if Exhibit ‘D’ is stolen property. By section 316 of the Penal Code, stolen property is defined as
“Property, the possession whereof has been transferred by theft or by extortion, or by robbery, and property, which has been criminally misappropriated or in respect of which criminal breach of trust has been committed is stolen property……”
1st accused/convict in this case was charged for criminal breach of trust of Exhibit ‘D’. He pleaded guilty on the charge and was convicted and sentenced. Exhibit ‘D’ therefore is property of which the offence of Criminal Breach of Trust has been committed. Exhibit D is therefore stolen property and I so hold.
The High Court on page 76 lines 28-30 had this to say –
“The fact is undisputable that this vehicle that came to the possession of both 1st and 2nd appellants was a stolen vehicle.”
The Court of Appeal in its lead judgment delivered by Adlo, J.C.A., (to which Ndoma-Egba and Mukhtar, JJ.C.A. concurred), observed on page 136 of the record-
“There was no doubt that the learned trial senior Magistrate took into consideration what the 1st accused said in his statement and the fact that the 1st accused pleaded guilty to the charge of criminal breach of trust for the purpose of making the finding that the motor vehicle was stolen. He also took into consideration, for that purpose, the evidence of the 2nd accused.
The statement of the 1st accused who did not give oral evidence and his plea of guilty to the charge of criminal breach of trust in relation to the said motor vehicle, could not properly be relied upon forthe purpose of making the finding of fact during the trial of the appellants that the motor vehicle was stolen.”
And at the bottom of page 137 the learned justice of the Court of Appeal continued-
‘The position then is that while the appellants were entitled to insist that there should be proof by credible and admissible evidence that the motor vehicle was stolen, if there was other evidence before the learned trial senior Magistrate which he could use but which he did not use, to establish his aforesaid finding, the appellate High Court would not have been right to reverse the decision of the learned trial senior magistrate…………….. should be done in the circumstance, and which the appellate High Court did was to decide the appeal on other legally admissible evidence before the trial court if the judgment was sustainable (See Ayanwale v. Atanda (1988)1 N.WL.R. (part 68) 12) The learned Justice then reviewed the facts of the case and concluded the matter on page 139 as to follows:-
“The evidence on which the conclusion was based was the evidence of the appellants themselves and the uncontradicted evidence of other prosecution witnesses particularly the 1st p.w., It was not necessary to rely on the evidence, oral or written, of the 1st and 2nd accused. The appellate High Court was therefore right in holding that there was evidence ………… that the said motor vehicle was a stolen motor vehicle ……. without regard to the evidence of 1st or the 2nd accused.”
In criminal proceedings the onus is always on the prosecution to establish the guilt of the accused beyond reasonable doubt. The prosecution will readily achieve this result by ensuring that all the necessary and vital ingredients of the charges are proved by evidence. There is no doubt that one of the ingredients of the charge under section 317 of the Penal Code is the proof that the motor vehicle subject matter of the charge was a stolen property. I think both the High Court and the Court of Appeal were right when they held that the learned trial senior Magistrate was wrong to, have held that the statement Exhibit ‘E’ and the pies of guilty by the 1st accused to the charge of criminal breach of trust could both be relied upon for the purpose of making the finding of fact that the car was a stolen car. But before the three-count charges were framed against the four accused persons, Alhaji Valeshe Shior (PW1) the owner of the motor vehicle (Exhibit D) had testified before the court how on 21/4/88 he gave the car with its particulars to the 1st accused at Abakaliki to drive to his home town in Gongola State. It was on his way to Gongola State that the 1st accused changed his way and went to Gboko where he handed over the car to the 2nd accused for disposal. When R W. 1 could not see the 1st accused and the car in Gongola State he reported to the police. The police took up the investigation and arrested all the accused persons. This is what the PW.1 said in his evidence in chief on page 6 of the record:-
“I went to Abakaliki with the 1st accused in order to purchase a motor vehi-cle …………. 1 bought the said vehicle ………. and was issued with a receipt. The vehicle is a Peugeot 504 Station Wagon. The receipt was in my name. I bought the vehicle for N49,000.00. After the purchase, I handed the vehicle over to the 1st accused together with the vehicle particulars to take the vehicle home. 1st accused has worked with me for more than 10 years. I trust him and had no fears when I handed over to him the said vehicle ……………… .I followed the accused in another vehicle. When we got to a place called Ankpa in Vandeikya Local Government the 1st accused over-took me in the new vehicle I bought. I thought he had gone to my home at Gongola. I got home only to find that the 1st accused was not at home. I came back to Vandeikya and lodge a complaint with the police. The police set up investigations and eventually arrested the 1st accused.”
It is significant to note that after his evidence in chief, PW1 was not cross-ex-amined or asked any question by the 1st accused. I think it would be right for any reasonable tribunal to have come to the conclusion that the evidence of PW.1 above clearly proved that the motor car was stolen by the 1st accused the moment he decided to change his route to Gboko instead of proceeding to Gongola State. Only the 1st accused was in a position to have effectively challenged the evidence of PW1 and as I have already observed he said nothing. There was therefore no evidence on record contrary to what PW1 had said about the theft of the motor vehicle. It was therefore not a question of believing one witness and disbelieving another on the same issue. The lower courts were therefore in order when they came to the conclusion that there were other evidence particularly that of P.W. 1 which showed that the motor vehicle was stolen. The point here really was that the learned trial senior magistrate made a finding that Exhibit D was a stolen property relying on the plea of the 1st accused person. What the High Court and the Court of Appeal did was to say that apart from using the plea and statement of the 1st accused which was improper, there were other evidence particularly that of PW1 to support the finding that the car was stolen. I think myself that there was proof in the trial court that Exhibit D was a stolen property.
Turning to issue (c) & (d) Chief Akinrele submitted that the learned trial senior Magistrate wrongly came to the conclusion that there was no pledge but an outright sale of Exh. D to the appellants.
It was equally wrong to have arrived at the conclusion that the appellants were dishonest and ought to have known that Exhibit D was a stolen property. He said in arriving at these conclusions the learned trial senior Magistrate relied on the statements by parties outside the court as well as making his own comparison of signatures unaided by expert evidence. He referred to page 50 of the record lines 16-27. It was submitted that statements of 1st and 2nd accused persons made out of court contributed to the conclusion in rejecting the evidence of the appellants and finding them guilty. To that extent the finding is perverse and the prosecution cannot be said to have proved its case beyond reasonable doubt. As to the comparison of signatures it was contended that there was always an obvious danger when a court without the aid of an expert made a judgment on such comparisons. It was possible for a writer to write in different ways and on the face of it the writing may not look similar. The best the judge could have said was that there was similarity and not that the writing was not by the same person. He cited in support R. v Tilley (1961)3 All E.R 406 and R. v. Omisade & ors. (1964)1 All N.L.R 233.
Counsel said the following deductions made by the lower courts or certain facts in this case was not proper –
(a) That the pledge negotiation was hastily concluded having been done in 2 days. He said there was no basis for this Conclusion.
(b) The alleged favourable nature of the transaction. He said there was nothing suggestive of a crime in the terms.
(c) That the 2nd accused and his brother did not bear the same surname. He said people who are uterine brothers not being of the same father will not have the same surname and that brothers in common parlance in Nigeria is all extended blood relationship or townsman.
(d) The difference in signature of the 2nd accused in his statement Exhibit E and the pledge document Exhibit K. This is a matter for 2nd accused and not to be used against the appellants since the discovery was made suo motu by the court without the opportunity of challenge or contribution by the appellants. In addition 2nd accused himself a convict in the case and the High Court had said that he cannot be used as a reliable witness.
(e) That the alleged inconsistency of the evidence of 1st appellant and his statement to the police is only marginal and not diametrically inconsistent.
(f) The keeping of a vehicle in the garage. He said a car naturally will be parked in a garage and doing so is not suggestive of a crime.
Mr. Ulegede in reply submitted that a trial court can rely on the evidence of a co-accused, where it believes the evidence, to convict a fellow accused person in the same trial. He referred to section 177(2) of the Evidence Act and the following cases:-
The Queen v Onuegbe & Ors. (1957)2 S.C. 10 at 12
I.G.P. v. Akinboyede (1958) W.R.N.L.R. 161
Dungus v. The State (1973)6 S.C. 171 at 180.
He said although the learned trial senior magistrate took into consideration the statement of the 2nd accused, Exhibit E, in rejecting the case of the appellants, the verdict can still be sustained even without Exhibit E. That the appellants in their own statements, and evidence in court explained fully how Exhibit D came into their possession. It was submitted that the circumstances in which a person received goods may of themselves prove that the goods were stolen and further prove that he knew it at the time when he received them: He cited Sbarra v. R. (1918)13 C.A.R. 118 at 119. It was also submitted that a trial judge is entitled without any assistance of an expert to personally compare writings to find out whether the questioned writing is or is not a forged one. He referred to R. v. Smith (1910)3 C.A.R.87, R. v. Richard (1919)13 C.A.R. 140, R. v. Appea 13 WA.C.A 143 and R. v. Wilcox (1961)1 All N.L.R. 631).
It was further submitted that all the deductions referred to by the appellants and which the lower courts made, were proper because they were based on the facts. He said the appellants have failed to show that the judgment complained of was perverse and if allowed to stand will occasion a miscarriage of justice. They have therefore not made out a case to warrant interference by this court.
There is no doubt whatsoever that two of the ingredients which the prosecution must prove in a charge under section 317 of the Penal Code are:
- That the accused person or persons knew or had reason to believe that the property in question was stolen property and
- That the accused person or persons received or retained the stolen property dishonestly.
I will first of all deal with the issue of proof that the appellant knew or had reason to believe that the motor vehicle (Exhibit D) was a stolen property. The lower courts dealt with the issue at their respective levels and came to the conclusion that the appellants ought to have known that Exhibit D was a stolen property. But the question is were they right having regard to the evidence before the trial court? One significant point to note immediately is that all the necessary evidence about the facts and circumstances surrounding the possession of the motor vehicle by the appellants can only be found in the statements and evidence of the four accused persons themselves and nobody else. I know one corporal Dominic Abugh who testified as FW2, said that the 4th accused (2nd appellant) confessed to him that he bought Exhibit D for N10,000.00. I think the witness ought to have known as a police officer, that when an accused person confesses to a crime, he must put It In writing and only after the necessary words of caution must have been administered on the accused person. In the Criminal Procedure (Statement to Police Officers) Rules 1960 – same as Judges Rules which applies in the Northern States Including Benue State it is provided under rule 5 thus: –
“5. Where a person against whom a police officer has decided to make a complaint, makes a statement before there is time to caution him he shall be cautioned as soon, as possible.”
The evidence of P W 2 cannot therefore be taken with the seriousness deserved. I will now take the statements and or evidence of the accused persons one by one. 1st accused (Hangeior Alagh)
He pleaded guilty to the first count of the charge. He gave no evidence at the trial. In his statement to the police Exhibit E he stated as follows:-
“The vehicle 504 station wagon I gave to one Simon Torjan Ruka or Alias Alhaji to sell it for me, he lives in Gboko South. I did not tell him the exact amount that he should sell.”
2nd accused (Simon Atule)
He testified as D.W. 1 on pages 34 to 37 of the record. In examination in the Chief he said:-
“Sometime in April, 1988 I was in my house……………….. a driver by name Hangeior, the 1st accused came to me ……………………..he brought a motor vehicle a Peugeot 504 Station Wagon.
He informed me that he sold yams to buy the vehicle ………. and other things but that the customs men seized the goods. He also informed me that as he was owing me I should take the vehicle he bought and sell it out even if the money for the vehicle was not fully paid, par should be paid and the balance at a future date. The following day I went to the 3rd accused and asked him to look for someone to purchase the vehicle ……………. 3rd accused said he has no money but that his masterwould be prepared to buy but that his master had travelled to Wukari for a case. In the evening I went back to the 3rd accused …………….. and he took me to the 4th accused 4th accused said he had no money that I should come back the following day for part payment of N10,000.00 leaving a balance to be agreed upon to be paid at a future date at the end of April. That evening I gave the vehicle to 3rd accused. The following morning 3rd accused gave me the sum of N10,000.00………… I gave the sum of N10,000.00 to the 1st accused who left my house the following day. I was then waiting for the end of April.”
Under cross-examination he said:-
“I did not bring anyb
Other Citation: (1992) LCN/2565(SC)
