Bassey Asuquo Ekpo V. The State (2002)

LawGlobal-Hub Lead Judgment Report

SULE AREMU OLAGUNJU, J.C.A. 

I

n a joint trial with three others on a range of charges of conspiracy to commit a felony, theft and receiving stolen property the appellant was convicted of the offence of receiving stolen property from the 1st and 2nd accused who were Fergies International Ltd.’s Site Engineer and Project Manager, respectively, knowing the property to have been stolen punishable under Section 427 of the Criminal Code of Cross River State applicable at Akwa Ibom State.

At the trial, the prosecution’s case against the appellant was that between 22nd and 25th March, 1993, at Fergies International Ltd. Work Site, Uyo, he received from the 1st and 2nd accused 3 trips of chippings (15m3) valued at N8,500 knowing the same to have been stolen. He was found guilty of the offence and sentenced to 2 years imprisonment without option of fine by Edemekong, J., of the Uyo Judicial Division of Akwa Ibom State High Court. This appeal is against the conviction of the appellant for the offence. The only issue formulated for determination by the appellant which was adopted by the respondent relates to the appellant’s knowledge that the property were stolen and it reads:
“Whether the trial court was justified in convicting the appellant on the charge of receiving stolen property given the circumstances of the case.”

Arguing the matters arising from the issue, learned counsel for the appellant attacked the findings of fact by the learned trial Judge contending, firstly, that the inference of guilty knowledge of the offence by the appellant drawn by the court does not flow from the evidence before the court and is at variance with the manner of delivery of the stolen property by the seller and the receipt of the property by the buyer (the appellant) which the learned trial Judge framed as a yardstick for determining guilty knowledge by the appellant. To this end, the learned counsel argued that, contrary to the finding by the trial court, there are no contradictions between the extra-judicial statement of the appellant to the police, Exhibit 3, and his oral testimony before the court to justify the presumption made by the learned trial Judge on which he predicated the guilty knowledge by the appellant. Secondly, the learned counsel also attacked as erroneous the finding of the learned trial Judge that it is probable that the detailed account of what transpired at the site where the stolen property were delivered to the appellant given in his statement to the police was more probable. The learned counsel submitted that in criminal trials findings are made and inferences are drawn on evidence that established proof beyond reasonable doubt and not on balance of probabilities which belongs to the realm of civil matters.

Thirdly, the learned counsel also attacked as erroneous the finding by the learned trial Judge that failure of the appellant to demand from the seller (the 1st accused) (a) the authority of his company to dispose of the chippings and (b) a receipt for the sale of the chippings ‘amount (sic) to an attempt to conceal the truth’. He argued that the 1st accused as the site engineer of the complainant, the owner of the stolen property, being the agent of a disclosed principal could competently transfer title to a third party within his ostensible authority citing in support Mohammed v. State (2000) 12 NWLR (Pt. 682) 596.

Learned counsel for the respondent debunked the argument on behalf of the appellant contending that the critical question in this appeal is whether there was sufficient credible evidence before the trial court to prove the fact that the appellant ‘knew or had reason to believe’ that the chippings were stolen. He did not meet directly the question of whether the inference of guilty knowledge was properly drawn from the evidence as agitated by learned counsel for the appellant. Rather, he set his own argument that there was enough evidence to justify the finding that the appellant had the knowledge that the chippings he bought were stolen in the absence of any receipt or authenticating document for the purchase and in view of the relatively low price paid for the chippings and the mode of delivery of the goods.

On the question of asking for or being issued with a receipt for the purchase of the chippings, the learned counsel recalled the knowledge of the appellant that he knew that the chippings were the property of Fergies International Ltd. which was the employer of the seller (the 1st accused) and argued that failure of the appellant to ask for a receipt justifies the inference that the property were stolen having regard to the appellant’s wide experience in building business in the course of which he engaged frequently in the past in buying chippings for construction works. He contended that the presumption under Section 149(c) of the Evidence Act operates against the appellant who was expected to ensure that the common course of business was followed which includes verifying whether the seller (the 1st accused) had the authority of his employer to sell the chippings and getting as a precaution of a receipt otherwise an authenticating document for the purchase as ‘a sine qua non for proof of genuine title’ to the property bought.

The learned counsel disparaged as a misconception of the law reliance by the appellant on the decision in Mohammad v. State supra, as authority for the 1st accused to sell the property of Fergies International Ltd. as an agent of that company. The ratio of that decision, he argued, is that an agent can transfer good title to a purchaser only where the principal consented to possession over goods to his known or disclosed agent. In the present situation not only was there no proof that Fergies International Ltd. gave consent to the appellant to sell her property but also there is no evidence that the 1st accused is a known or disclosed agent of the company for purposes of the sale of the company’s property to the appellant.

The learned counsel also scoffed at the excuse given by the appellant for not asking for a receipt for the sale as due to the confidence he had in the 1st accused coupled with the fact that the tenets of their church kick against stealing. He contended that the appellant’s business of buying property belonging to Fergies International Ltd. was quite distinct, independent and different from a moral or religious relationship with the 1st accused and concluded that

“These were two separate and mutually exclusive relationships and the fact that the accused person was a member of Appellant’s church does not, in the normal course of business, displace the need for a receipt or sale – authenticating document in a transaction such as the present one, i.e. between Appellant and Fergies International, a corporate entity, even if represented by 1st accused person.”

As regards the low price paid for the chippings as a factor from which inference of guilty knowledge of the property being stolen can be inferred, learned counsel for the respondent contrasted the evidence of the appellant that ‘the going rate at the open market for chippings was between N1,500 and N1,550’ with the testimony of the Police Investigator, Sgt. Jacob Akpan, the 5PW., who deposed, at page 48 of the record, that ‘one trip of granite chippings varied at the time …; the cost was about N3,000.00.The contract price then varied too from company to company. Some companies in their quotation made N10,000, N15,000 or N8,000’. The learned counsel submitted that the testimony of the 5PW is more credible and is to be preferred to the evidence of the appellant whose testimony in material part is contradictory. Going by the evidence of the 5PW., he further submitted, the chippings were sold to the appellant at half the going price. He contended that ‘that fact alone ought to have placed the appellant on notice that the chippings were stolen’ and submitted that the fact that he still bought it makes him guilty of the charge of receiving stolen goods under Section 427 of the Criminal Code.

The learned counsel conceded that as agitated on behalf of the appellant that the trial court did not hinge the conviction of the appellant on this particular ground he, nonetheless, contended that this court can uphold a conviction on grounds other than the one on which the trial court convicted the accused person provided that the evidence in support of the ground is available in the record and could have been used by the trial court in support of the conviction. He relied on the decision in Yongo v. Commissioner of Police (1990) 5 NWLR (Pt. 148) 103 114. He urged this court to uphold the appellant’s conviction and to disregard the appellant’s submission that the fact that the chippings were delivered to the appellant in broad daylight negatives guilt.

With regard to the mode of delivery of the goods as a factor from which knowledge that the property are stolen can be inferred, the learned counsel referred to the appellant’s extra-judicial statement to the Police Exhibit 3, that ‘when I was going away with the granite Mr. Chukwumah was in the site therefore the security guards did not challenge me’. He further referred to the testimonies of the 2PW and 3PW, the company’s security men on duty ‘at all times and dates material to (the) case’, that they initially resisted the removal of the stolen items but were threatened and intimidated into submission by the 1st and 2nd accused. He contended that the presence of the 1st accused on the company’s premises provided the appellant cover to get out with the stolen property unchallenged by the security men who has been cowed by the 2 accused persons and, therefore, negative the emphasis placed by the appellant on the stolen goods being removed from the site in the daylight as an element of innocence of the fact that the property were stolen. That sequence of development, he submitted, justifies the conclusion by the learned trial Judge that “the fact that the items were removed or dealt with in broad daylight does not also seem to diminish the character of the act as an offence against the state’.