Musa Sadau Anor. Yaro V The State (1968)

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COKER, J.S.C.

Musa Sadau and Audu Yaro were tried by Wheeler, J. in the High Court, Kaduna, and convicted on various counts of the several charges laid against four persons who were originally charged and tried together. The case for the prosecution is that the accused persons were involved in a racket by which vehicle licences and similar forms were printed at the Government Press without authority and illegally sold for money by and on behalf of the members of the gang. Musa Sadau was the first accused at the trial and Audu Yaro was the third accused. The second accused, one Sho-Silva, and the fourth accused, one Alhaji Ishiaku, were acquitted and discharged on the charges against them.

The first accused was convicted on the first, third and sixth counts of the charge against him and the third accused convicted on the only count of the charge against him.

The third accused did not file any appeal papers; he however filed a motion before us asking for leave to appeal out of time and to do so in forma pauperis. We have considered his applications and as we can find nothing on the record of appeal which can be usefully urged by him or on his behalf, we conclude that no useful purpose would be served by acceding to his request. We therefore refuse him leave to appeal out of time.

The counts in respect of which the first accused (hereinafter referred 1o: as the appellant) was convicted are as follows:-

“1. That you Musa Sadau on or about the 21st day of April, 1964 at Zaria were found in possession of forged documents to wit, 17 driving licence books, 5 driving licence covers, 22 vehicle licences, 2 books of certificate of road worthiness, 9 forged certificates of road worthiness, 1 booklet professional driving licence, 2 sheets of Professional Driving Licence and 13 dealers’ licence: knowing same to be forged and intending the same shall dishonestly be used as genuine and you thereby committed an offence punishable under section 368 of the Penal Code.

2. That you Musa Sadau on or about the 6th day of April, 1964 at Zaria dishonestly used as genuine forged vehicle licence No. 934057 and forged stage carriage licence No. 071233 by selling the same to one Muhammadu Wawadu, knowing them to be forged and you thereby committed an offence punishable under section 366 of the Penal Code.

3. That you Musa Sadau on or about the 3rd day of April, 1964 at Zaria dishonestly used as genuine forged vehicle licence No. 735400 and stage carriage licence No. 23367 by selling the same to one Alhaji Umaru Tulu knowing them to be forged and you thereby committed an offence punishable under section 366 of the Penal Code.”

The case against him was that he had procured the second accused to print for him a quantity of vehicle licensing forms and that from time to time he sold these forged licences for money. He was known as a licence agent and was in the habit of collecting money from vehicle owners and issuing them with the forged ones which had been printed for him. It was also part of the case for the prosecution that his house was searched in the early hours of the 21st April, 1964 (according to the endorsement on the search warrant, exhibit 31) and a large quantity of vehicle licences and licensing forms, driving licence booklets, a number of stamps and ink pads resembling those of the Government licensing authorities, were recovered.

His statements to the Police were ruled inadmissible at the trial and in his evidence before the court he denied having in his possession any vehicle licences or other forms and also selling such licences to anyone. He also stated that his only occupation was that of a bicycle repairer. He denied that the vehicle licences and other licensing forms produced by the Police and described as having been found in his house as a result of the search were found with him and stated that they were all contained in a bag carried into the house by the Police Officer who searched his house and planted them there. In a reserved judgment, the teamed trial judge disbelieved his story, concluded that the forms produced by the Police were found in his house and in his possession and that they were some of the fortes which he had been selling to some of the prosecution witnesses who testified against him at his trial to that effect. He was accordingly convicted on the three counts set out above but discharged on the other counts of the charge against him.

Hence this appeal. Three grounds of appeal were filed and argued as follows:-

“(1) That the decision is unreasonable and cannot be supported having regard to the evidence.

(2) That the learned trial judge was wrong in holding that non-compliance with section 78 (1) of the Criminal Procedure Code on the part of the prosecution was not fatal to prosecutions’ case re the first charge against the appellant

(3) That the sentence is excessive.”

With respect to the fast and third grounds of appeal, leave was obtained by the appellant from the High Court Before us no serious attempt was made to disparage the findings of fact and it seems clear to us that the judge was entitled on the evidence before him to come to the conclusions to which he arrived on the proven facts of the case. The appeal against sentence was abandoned. The offences of which the appellant was convicted were serious, striking as they did at the economy of the State. If we were to express an opinion we should have thought that he got off lightly having regard to the nature of the offences and the circumstances of their commission. The first and the third grounds of appeal therefore fail.

On the second ground of appeal learned counsel for the appellant contended that inasmuch as the provisions of section 78 (1) were not complied with during the searching of the appellant’s house as no neighbours were present, the search was illegal and the properties removed therefrom and as a result of that search should not have been received in evidence. The learned Director of Public Prosecutions submitted that section 78 (1) of the Criminal Procedure Code did not make the presence of witnesses mandatory during a search, that properties recovered during an authorised search could be received in evidence and that the presence of witnesses at the search would only add weight to any evidence which is given about the search.

Section 78 (1) of the Criminal Procedure Code provides, as follows:

“78. (1) Searches under part ‘B’ of this chapter shall, unless the court of justice of the peace owing to the nature of the case otherwise directs, be made whenever possible in the presence of two respectable inhabitants of the neighbourhood to be summoned by die person to – whom the search warrant is addressed.”

We are not aware of the existence of any authority dealing with the construction of this section and we have not been asked to lay down any rules about its operation. While the appeal was being argued this court referred to section 23 of the Constitution of the Federation, but teamed counsel for the appellant did not submit that the right reserved by that section had been violated, and it is unnecessary to consider whether evidence obtained in breach of the section would be inadmissible.

We think the argument in this case bears solely on whether or not the properties recovered during the search of the applicant’s premises were rightly admitted in evidence. Admissibility is a rule of evidence and it is based on relevancy. Sections 6-18 of the Evidence Act provides for the admission in evidence of the variety of facts and other [natters described therein the circumstances under which they are admissible in evidence. It was submitted by the teamed Director of Public Prosecutions that admissibility in evidence is based on relevancy and it has not been argued before us that where a fact is relevant it could be excluded at law except by virtue of a specific statutory provision or rule of law; so a confessional statement, oral or written, will not be admitted unless it is shown to have been obtained in compliance with the law.

There is no general rule of law in civil as well as in criminal cases that evidence which is relevant is excluded merely by the way in which it has been obtained.

This is subject in criminal cases to the discretion of a trial judge “to set the essentials of justice above the technical rule if the strict application of the latter would operate unfairly against the accused” (See per Viscount Simon in Harris v. Director of Public Prosecutions (1952) A.C. 694 at p.707). This means that the judge can, where the interests of justice demand it, exclude evidence which otherwise would be relevant considering the circumstances of its discovery and production.

The section that really authorises a search of premises is section 74 of the Criminal Procedure Code and section 78 (1) does no more than lay down a procedure by which the search warrant should be executed. If the proper procedure was not followed an irregularity may or may not have occurred, depending on the facts or circumstances, but in any case the consequence of an irregularity will attach to the persons executing the warrant and not to the evidence which is thereby obtained. In Kuruma, Son of Kaniu v. The Queen (1955) A.C. 197 at p. 203, the Privy. Council described the position at law thus:-

“In their Lordships’ opinion the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained. While this proposition may not have been stated in so many words in any English case there are decisions which support it, and in their lordships’ opinion it is plainly right in principle here can be no difference in principle for this purpose between a civil and a criminal case. No doubt in a criminal case a judge always has a discretion to disallow evidence if the strict rules of admissibility would operate unfairly against an accused.”

In the case in hand, the properties recovered in the house of the appellant are the Area Of Law of the charge against him and it will be useless to dispute their relevance the charge which was being tried. They were produced in evidence without objection and there was no suggestion at the time of their production that that evidence would operate unfairly against the appellant. Learned counsel for the appellant referred to other circumstances of the case, as for instance the failure by the prosecution to call as witnesses any of the other persons stated to be present at the search in the course of his evidence by the only Police officer who had given evidence of the search and the discovery. These circumstances have no bearing on the point of law being canvassed and section 148 (d) of the Evidence Act, on which counsel relied, does not refer to the failure to produce witnesses but the failure to produce evidence. If the prosecution produced the evidence necessary for its case it would have been open to any party who requires any contradicting evidence for his own case to have called any witness whom he thinks can give such evidence.

For these reasons we cannot accede to the argument of learned counsel for the appellant as regards section 78 (l) of the Criminal Procedure Code. We think that the evidence of the documents found in the house of the appellant is relevant and admissible and therefore rightly admitted in this case. On the evidence before the court, the guilt of the appellant was established beyond any doubt and the ground of appeal must also fail.

In the event the appeal fails on all grounds and it is dismissed. The conviction and sentences are affirmed.

Other Citation: (1968) LCN/1607(SC)