Joseph Rollings Osakwe V. The Queen (1963)

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BAlRAMIAN, J.S.C.

The present appeal arises out of the theft of a motor car stolen by Accused Nos . 1, 2 and 3, who were taken by Accused No. 5 to Accused No.4 with the aim of disposing of the car. All were convicted-Nos. 1, 2, 3, of stealing, and Nos. 4 and 5 of receiving. No.5 has not applied for leave to appeal; the applications of Nos. 1, 2 and 3 were refused; No.4 has been given leave, and is here referred to as the appellant.

The point is whether it was right on the facts to find that No.4 was guilty of receiving the car.

It was about 8 a.m. that the others came to the appellant; he said that if the car was brought and it was in good condition, he could get them a dealer to buy it; and he gave No. 2 a shilling to go in a taxi and bring the car.

It was brought and was outside his house. Someone had informed the Police, and two constables went and saw the car there about 9.30 am. They found Accused Nos. 1 to 3 on the verandah outside; when the appellant came, he pointed to them as having brought the car for him to buy, and said that it was No.5 who had brought Nos. 1 to 3 to him.

The car key was with No.3. The learned Judge was satisfied that:-
“The 4th accused” (now the appellant) “knew that the car was stolen when the 1st, 2nd and 3rd accused persons came to him and offered it for sale and with that knowledge he received it with the object of getting a buyer for it.
This Court accepts the finding that he knew it was stolen; the difficulty lies in the finding that he received it.

Dealing with the 5th Accused the learned Judge says:-
“To my mind both he and the 4th accused are at the receiving end and are ready to dispose of any stolen car brought to Onitsha . . . the 5th Accused knew that the car was stolen and took the 1st, 2nd and 3rd accused persons to the 4th accused for the purpose of disposing of the car. . .”
There was no evidence that the 4th accused had received stolen goods before.

Section 427 of the Criminal Code, which relates to the offence of receiving, provides that:- “For the purpose of proving the receiving of anything it is sufficient to show that the accused person has, either alone or jointly with some other person, had the thing in his possession, or has aided in concealing it or disposing of it.”

The tense of the verb is the perfect tense  has, had or has aided. Proof is needed that the accused person, whether alone or jointly with another, has already had the thing in his possession or has already aided in concealing it or disposing of it.

In this case, the car was outside the appellant’s house. The fact that he paid a shilling to have it brought can mean no more than this: that he was willing to help in disposing of it either by buying it or by looking for a buyer.

There is no express finding in the judgement that by the time the Police stepped in he had done something which proved his having already had the car in his possession or his having already aided in disposing of it. Apparently he went out and came back. There is no finding that when away from home he tried to sell the car, it may have been for some other purpose.

It is a case in which the Police, as it happened, struck too soon so far as the appellant was concerned. The most that can be said is that he was willing to receive; but the offence of actually receiving, either as having had the stolen car in his possession or as having aided in disposing of it, was not proved against him.

The appeal of Joseph Rollings Osakwe, Accused No.4 in the Port Harcourt case No. P135.C/1962, from the decision of the High Court of Eastern Nigeria dated 17th December, 1962, and convicting him of receiving under the 3rd count, is allowed, and the conviction and sentence are quashed, and a judgement of acquittal shall be entered.

F.S.C.60/1963