Sebastian S. Yongo & Anor. V. Commissioner Of Police (1992)
LawGlobal-Hub Lead Judgment Report
L. KUTIGI, J.S.C.
The appellants and two others HANGEIOR ALAGH AND SIMON ATULE were at the Senior Magistrate Court, Vandeikya, 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 at N49,000.00 by one ALHAJI VELESHE committed Criminal Breach of Trust in that you either misappropriated, converted it to your use, used it or disposed of it not in accordance with the terms of the trust dishonestly and that you thereby committed an offence punishable under Section 31 2 of the Penal Code.
Count II
That you, SIMON ATULE, SEBASTIAN YONGO AND ISAAC NOMISHAN 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 not registered 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.
Court III
That you SIMON ATULE, SEBASTIAN YONGO AND ISAAC NOMISHAN, on or about the 21st day of March, 1988 at Gboko voluntarily assisted in concealing, disposing 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 knew 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 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 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 Shim who testified as P.W.1 at the trial, purchased a new Peugeot 504 at Abakaliki for the sum of N49,000.00. He handed over the vehicle together with the keys and other particulars to his driver Hangeior Alagh (the 1st accused) to drive to his 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 Sebastian 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 accepted 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 eights 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 (Exh. D) subject matter of the charge, was 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 wrongly 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 and24-30 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 P.W.1 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 P.W.1 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 P.W.1 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 P.W.1. 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 the lower court particularly in coming to the conclusion that Exh.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 EXH. ‘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 EXH ‘D’. He pleaded guilty on the charge and was convicted and sentenced. Exh ‘D’ therefore is property of which the offence of Criminal Breach of Trust has been committed. EXH. ‘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 Adio, J .C.A. (to which Ndoma-Egba and Mukhtar J.J.CA. 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 for the 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 .
……………..what 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.W.L.R. (Pt. 68) 22.
The learned Justice then reviewed the facts of the case and concluded the matter on page 139 as 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 charge or 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 statement EXH. ‘E’ and the plea of guilty by the 1st accused to the charge of criminal breach of trust could not be relied upon for the purposes 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 Veleshe Shior (P.W.1) the owner of the motor vehicle (EXH. 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 P.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 P.W.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 vehicle I 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 Ankaa 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 o only to find that the 1st accused was not at home. I came back to Vandeikya and lodged 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 P.W.1 was not cross-examined 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 P.W.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 P.W.1 and as I have already observed he said nothing. There was therefore no evidence on record contrary to what P.W.1 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 EXH.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 thatof P.W.1 to support the finding that the car was stolen. I think myself that there was proof in the trial court that EXH.D was a stolen property.
Turning to issues (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 EXH.D was a stolen property. He said in arriving at his 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 or 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 Omisade & Ors v. Queen (1964) 1 A.N.L.R. 233; (1964) NMLR 67.
Counsel said the following deductions made by the lower courts on certain facts in this case were 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 EXH.E and the pledge document EXH.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 was 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 F.S.C. 10 at 12; (1957) SCNLR 130; I.G.P. v. Akinbayode (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, EXH.E, in rejecting the case of the appellants, the verdict can still be sustained even without EXH.E. That the appellants in their own statements, and evidence in court explained fully how EXH.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 Sharra 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 W. A.C.A. 143 and R.v. Wilcox (1961) 1 All N.L.R.631 (1961).
It was further submitted that all the deductions referred to by the appellants and which the lower courts made, were proper bccause 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 (EXH.D) was a stolen property. The lower courts dealt with the issue at their respective levels and came to the conclusion that the appellant ought to have known that EXH.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 P.W.2, said that the 4th accused (2nd appellant) confessed to him that he bought EXH.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 it deserves. I will now take the statements and or evidence of the accused persons one by one. Ist accused (Hangeior Alagh)
He pleaded guilty to the first count of charge.
He gave no evidence at the trial. In his statement to the police EXH.E he stated as follows:-
“The very 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 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 and so I should take the vehicle he bought and sell it out even if the money for the vehicle was not fully paid, part 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 master would be prepared to buy that his master had travelled to Wukari for a case. In the evening………. I went back to the 3rd accused…………..and he in turn took me to the 4th accused. 4th accused said he had no money but 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 anybody to the 3rd & 4th accused to pose as Alhaji Veleshe……………. I went there alone. There was no agreement whatsoever between me and anybody or between 3rd accused and anybody and I was not asked to sign as a witness. 1st accused did not tell me how much he bought the vehicle……………..
1st accused did not tell me how much he wanted me to sell the vehicle. He simply asked me for N10,000.00 and the remaining balance to he agreed at the end of April………………I did not know that the vehicle is stolen vehicle there is nothing to show that the vehicle is stolen,”
His statement to the police (EXH.F) is substantially in agreement with his testimony before the court.
3rd accused (Sebastian Yongo)
He testified as D.W.2 on pages 26 – 28 of the record. He testified thus:-
“2nd accused who is Simon Atule informed me that his senior brother wanted to pledge his unregistered vehicle at N10,000.00 or more with an interest of N2,000.00 for Two weeks. I went back into the chambers of 4th accused and informed him of this fact. He, 4th accused also agreed that it was not a bad business…………. 2nd accused went and brought the owner of the vehicle with particulars to chambers of 4th accused…………….4th accused drafted an agreement and asked the owner to sign with Simon Atule. 2nd accused and I was also to sign. We all signed. I gave 2nd accused the N10,000.00 and look possession of the vehicle and the particulars.
Under cross-examination he said:-
“the person 2nd accused brought to us as the owner of the vehicle is not in court here………………The brother of the 2nd accused who was brought to us said his name is Veleshe Shior. If I see him I will be able to identify him ………………….
The vehicle was pledged to me at an interest. His statement (EXH. G) to the police was generally in line with his evidence before the court. .
4th accused (Isaac Nomishan)
He testified as D.W.3 on pages 28 -34 of the record. His evidence is substantially the same as that of the 2nd and 3rd accused persons above.
Now the learned trial senior magistrate treated this aspect of the charge on page 53. He said:-
I have carefully examined the evidence in this case and the circumstances. I have also watched the respective demeanours of all the accused persons. I believe all the witnesses for the prosecution that what took place on the 9/4/88 was an outright sale of EXH.D to accused 3 and 4. I also believe the evidence of accused 2 in this regard. His credible evidence to this effect was not discredited by cross-examination. I therefore hold that accused 3 and 4 knew or had reason to believe that EXH.D was stolen property the fact that original particulars and keys were handed over to them notwithstanding………………..and the fact that the vehicle was sold out at such a low price and such generous terms would have given accused 3 and 4 sufficient notice particularly because of the standing of accused 3 and 4 in society. I also hold that their dealing with EXH.D was most dishonest to say the least.
I must say straight away that the above finding to the effect that the motor vehicle (EXH.D) was an outright sale to accused 3 and 4 (the appellants) is perverse. It is not supported by the evidence led at the trial.
In fact none of the three prosecution witnesses was present when the alleged transaction took place. And even if the finding can be regarded as an inference it was certainly not based on the available facts. Secondly, although the 2nd accused said the 1st accused instructed him to sell EXH.D, there is nowhere in his evidence he said he actually sold the car. As indicated in his evidence above, he said both accused 3 and 4 told him that they had no money-
“but that I should come back the following day for part payment of N10,000.00 leaving a balance to be paid at a future date at the end of April.”
But if I may ask here – what balance For how much was the car sold But as God will have it, under cross-examination (see above) he went on to say:-
“1st accused did not tell me how much he bought the car ………………….1st accused did not tell me how much he wanted me to sell the vehicle. He simply asked me for N10,000.00 and the remaining balance to be agreed at the end of April.’
If I may ask again – what kind of business is this I am yet to come across an outright sale where the price is to be agreed at a future date. Neither the 2nd accused (the seller), nor the appellants (the receivers) knew the price of EXH.D. This was a sale where there was no offer of any price and no acceptance. It was therefore a case of no contract and no sale. In my view if anything took place between the 2nd accused and the appellants at all it would appear to be in the nature of a pledge. An explanation which the appellants offered at the trial but rejected by the learned senior magistrate.
The learned senior magistrate also stated in his judgment above that the fact that the vehicle was sold at a low price should have alerted the appellants.
I think that inference too could not have been properly drawn from the facts before the court. There was no such evidence. I have already said that there was no evidence that EXH.D, was sold for N10,000.00. I have also shown above that even the seller himself (the 2nd accused) said in his evidence before the court that the 1st accused did not tell him how much he bought EXH.D nor for how much it should he sold. He made it clear that he took N10,000.00 from the appellants, as part payment of a price to be agreed at a future date. I am therefore unable to see what is low or generous about the N10,000.00 at that stage. I am equally as yet unaware of any danger signal that would have put the appellants on their alert.
The appellants both in their testimonies in court and statements to the police, explained that it was a pledge transaction that they had with the 2nd accused for N10,000.00 at N2,000.00 interest for two weeks. And the motor vehicle EXH.D was deposited with them as security. That the pledge agreement (EXH.K) was prepared by the 4th accused/2nd appellant and signed by the alleged owner of the vehicle one Alhaji V. Shior as well as the 2nd and 3rd accused persons. The 2nd accused denied entering into any agreement. He also denied introducing any Alhaji Veleshe to the appellants as owner of the said vehicle. Rejecting EXH.K the learned trial senior magistrate said as follows:-
“In any case that agreement, EXH.K is not dated. The character of the whole handwriting on EXH.K is the same. The same person that wrote the agreement signed all the signatures when in fact three different people are supposed to sign. I hold that having regard to the unusual similarity in the characters of this writing, the whole writing and the signatures were written by one single individual …………………..Besides the story that an agreement was made between the parties has become blurred by a witness to the agreement accused 2 who denied that there was any agreement made between the parties. He also denied that there was anybody he brought that posed as Alhaji Veleshe Shior.”
The first observation I would like to make is that although the 2nd accused denied that there was any agreement or that he introduced one Alhaji Shior as owner of the vehicle, the name of the actual owner of the vehicle who testified as P.W.1 is Alhaji Veleshe Shior. The evidence was that P.W.1 gave the vehicle with all its particulars and receipts to the 1st accused and the 1st accused later handed over same to 2nd accused. The vehicle particulars were all in the name of P.W.1. It was not therefore unthinkable or unusual for the seller, 2nd accused, to have introduced someone (brother or not) to pose as the owner of the said vehicle. Secondly EXH.K was not shown to the 2nd accused at the trial for him to deny the alleged signature. According to the evidence, EXH.K was prepared by the 4th accused (2nd appellant) and there was no finding to the contrary. Exhibit ‘K’ was also signed by the 3rd accused. He stated in his evidence that he signed the agreement. The third signatory to the agreement Alhaji V. Shior, the alleged owner, was not available at the trial and so could not have denied signing EXH.K. Thirdly, the learned senior magistrate stated above that EXH.K was not dated. He was clearly wrong because it bears the date 9/4/88 on the top right hand corner. On the whole therefore I am of the view that the senior magistrate was wrong when he single-handedly in his chambers, proceeded to examine EXH.K and thereby arrived at the conclusion that “the writing and the signatures” thereon were all done by one single individual. (See R. v. Wilcox (1961) 2 SCNLR 296; (1961) 1 ALL N.L.R. 631). No wonder he did not say who wrote and or signed it! I think although the law permits trial courts to compare writings and or signatures in order to discover their authors, this only arises in a case where the writings and or signatures are in dispute and therefore in issue. And in such cases proven or acknowledged writings or signatures of the disputants must be before the court. (See Zakiah v. Board of Customs & Excise (1966) N.M.L.R. 293. Nobody has denied writing or signing EXH. K in this case. There is no doubt the 2nd accused said he made no agreement with anybody and that he signed nothing. But nowhere did he say in evidence that any of the signatures on EXH.K was not his, because he did not see EXH. K at the trial. The learned trial senior magistrate seemed to be in a hurry in his effort to demolish the explanation offered by the appellants. I think on a careful study of the record as a whole and the observations I have been trying to make above, it would be clear that far from being an “outright sale”, the transaction carried out of the parties in relation to the motor vehicle EXH. D was more in the nature of a pledge than anything else. It is at least a doubtful sale if any at all. And I find nothing criminal in the terms, even if generous, according to the Court of Appeal. Further the raising of a presumption of guilty possession of recently stolen goods, does not mean that the burden of proof is shifted to the accused so that he must prove positively that he is an innocent purchaser. It is sufficient to rebut the presumption if he gives an explanation of his possession which raises a doubt in the mind of the court as to his guilt. It is uncontestable that an accused person is always entitled to the benefit of doubt. The presumption under section 148(a) of the Evidence Act is also a rebuttable one and if an accused person gives a reasonable explanation of the possession of the property as in this case, he should be acquitted if there is no other evidence against him (See for example Garkida v. C.O.P. (1964) NMLR 103.
The Court of Appeal also commented on the fact that EXH. D was found parked in the garage of the 2nd appellant with the door of the garage closed, that a pick up motor vehicle was used to block it; and that the garage was dark. It then went on to say that the place and the way a stolen article or thing is kept may be evidence upon which an inference may be drawn that an accused knew or had reason to believe that the article or thing was stolen relying on R. v. Boateng (1941) 7 W.A.C.A. 109. But that court forgot that in Boateng the bottle of Whisky found under a petrol case on which a man had been sleeping and a tin of sardines found on a window till amongst many books, were found in unusual “abodes”. They are not usually kept in such places. They were hidden and therefore evidence of guilty knowledge could be inferred. In the instant case nobody can deny the fact that garages are built for motor vehicles. EXH. D was found in a garage not in a bedroom or toilet. How it was parked and the conditions of the garage are in my view immaterial. In fact it ought to be remembered that the appellants never denied possessing the car. And the appellants themselves led the police (P.W.3) to the garage where the car was kept. If anything I think the way EXH. D was parked was equally consistent with the pledge and not just merely that it was a stolen property, because if the car disappeared before it was redeemed, appellants knew they would be in trouble.
On the whole I am clearly of the view that there was no evidence that the appellants knew or had reason to know or believe that EXH. D was a stolen property. Equally too in my view there was no evidence that the, appellants received or retained EXH. D dishonestly.
Before I close I would like to comment briefly on the evidence of the co-accussed persons and their statements to the police in this case because the learned trial senior magistrate was indiscriminately using one statement or evidence of one accused to corroborate the evidence or statement of another co-accused and making findings thereon as it pleased him. Certainly although a co-accused is not to be treated as an accomplice (See section 177(2) of the Evidence Act), the practice is always to treat such evidence with caution (see for example Uku v. State (1966) N.M.L.R. 18, R. v. Adebowale 7 W.A.C.A. 142, Umole v. I.G. P. (1957) N.N.L.R. 8. Caution was not exercised in this case and the Court of Appeal found it compelling when it commented thus;-
“Having regard to what I have said above there was obviously a mistake on the part of the learned trial senior magistrate in his holding in relation to the count under section 317 that the 2nd accused did not receive the said motor vehicle dishonestly or that he did not know or has reason to believe that the said motor vehicle was stolen:.”
Clearly if the 2nd accused as the seller, did not know that the vehicle was stolen who would As already stated above, the appellants were convicted of the same charge under section 317 while the 2nd accused was discharged and acquitted.
This is rather queer!
I think it is also settled that in a criminal trial where an accused incriminates a co-accused in his statement to the police, the statement is evidence only against the maker and not against a co-accused. But where the prosecution or the police intends to use the statement against a co-accused then the prosecution or the police is bound to make a copy of the incriminating statement available to the co-accused. Again it is provided under Rule 7(1) & (2) of the Criminal Procedure (Statement to Police Officers) Rules 1960 as follows:-
“7 (1) When a police officer has decided to make the same complaint against two or more persons and their statements are taken separately, the police officer shall not read such statements to the other person or persons, but each of such persons shall be given by the police officer a copy of such statements and nothing shall be said or done by the police to invite a reply:
Provided that where such a person is an illiterate, the statement may be read over or interpreted to him apart by some person other than a police officer and anything said to such reader by such person when the statement is read shall not be admissible in evidence against him.
(2) If such a person desires to make a statement in reply, a caution shall be administered.”
(See also R. v. AFOSE (1934) 2 W.A.C.A. 118). This procedure was not followed in this case and the learned trial senior magistrate simply proceeded erroneously and indiscriminately to use the statement of one accused against another accused and using one statement to corroborate another which all go to show that the prosecution failed to prove its case against the appellants beyond reasonable doubt.
The appeal therefore succeeds. It is hereby allowed. The convictions and sentences passed on the appellants by the trial court are hereby set aside. They are discharged and acquitted.A. G. KARIBI-WHYTE, J.S.C: I have read the judgment of my learned brother Kutigi, J.S.C. in this appeal. I agree with his reasoning and his conclusion allowing the appeal of the appellants. Appellants, with another were charged before the trial Senior Magistrate in Vandeikya Magistrate’s Court, Benue State on 9/5/88 on three counts of offences of criminal breach of trust under section 312 of the Penal Code, knowingly receiving stolen property punishable under section 317 of the Penal Code and concealing, disposing of stolen property punishable under s. 319 of the Penal Code. They were convicted on the second count. Appellants’ appeal to the High Court, and the Court below were unsuccessful. They have further appealed to this court.
I do not wish to reproduce the facts of this case in any detail. This has been comprehensively done in the judgment of my learned brother Kutigi, J.S.C., I adopt his statement of the facts.
It is important to observe that appellants were convicted on the charge of 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 one and a half years imprisonment in default.
They were acquitted on the third count.
The correctness of the conviction and sentence is the subject-matter of the appeal before us.
In his judgment the learned trial Senior Magistrate relied on the evidence of the prosecution witnesses which he believed and the evidence of the 1st and 2nd accused, that the 2nd appellant, who was the 4th accused, obtained the vehicle by an outright sale through the 3rd accused, who is the 1st appellant.
The learned trial Senior Magistrate also relied on the circumstances and conditions for the sale of the vehicle to come to his conclusion, that the subject matter of the transaction was a stolen vehicle. As I have already stated, their appeals to the High Court and the Court of Appeal were dismissed. Eight grounds of appeal were filed in this court on behalf of each appellant. Learned Counsel to the appellants sought leave to file and argue an additional ground of appeal. The additional ground reads:
“The Court of Appeal erred in law in holding that the prosecution has proved its case against the appellants beyond a reasonable doubt when inadmissible evidence, to wit the statement of accused out of court has been used to discredit the evidence of the appellants on essential issues.”
The following issues for determination were formulated from the eight grounds of appeal filed by the appellants. Appellants filed a joint brief of argument. Mr. Akinrele. S.A.N. represented both appellants. The four issues formulated are namely:
“1. Was there any proof that the vehicle, the subject matter of this charge was stolen property
- Could the Court of Appeal substitute evidence on the record on which there was no finding as to its acceptability by the lower court
- 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
- 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”
It seems to me clear from the issues formulated that the complaint in the grounds of appeal is that the prosecution has not proved either that the Motor vehicle Exh. D. subject matter of the prosecution, was stolen property, or that appellants knew or had reason to believe that the vehicle was stolen property.
Learned Counsel to the Respondents, Mr. Ulegede’s formulation of the issues though raising the same issues were somewhat differently expressed. They are as follows:-
(a) Was there proof that the vehicle Exhibit D. the subject-matter of the charge was stolen property
(b) Could it be said that the Court of Appeal used its own reasoning in affirming the conviction of the appellant
(c) Was the case against the appellants proved beyond reasonable doubt
(d) Can it be said that the judgment is against the weight of evidence
I intend therefore to consider the issues in the most convenient manner to accentuate the contention of counsel in this appeal.
I consider it important to point out that at the end of the trial, appellants were convicted only for the offence of dishonestly receiving or retaining stolen property knowing or having reason to believe same to be stolen property. This is the offence in respect of which the grounds of appeal have been filed, and the four issues for determination in this appeal have been formulated.
It is relevant to set out the charge under section 317 of the Penal Code under which appellants were convicted. It reads as follows:-
“Whoever dishonestly receives or retains any stolen property knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment for a term which may extend to fourteen years or with a fine or with both,”
The essential ingredients of the offence which the prosecution is required to prove in order to secure a conviction under this section are:-
- That the property in question is stolen property.
- That the accused received or retained such property.
- That he did so dishonestly.
- That he knew or had reason to believe that the property was stolen property.
It is only where these essential ingredients are satisfied that a conviction under section 317 of the Penal Code can be sustained.
I shall now consider the first two issues together. These are whether there was proof that the subject-matter of the charge was stolen property, and whether the Court of Appeal could substitute evidence on the record on which there was no finding as to its acceptability by the lower court.
It is convenient for me to deal with the second issue first.
Chief Akinrele. S.A.N., submitted that the Court of Appeal having admitted that the burden was on the prosecution to prove that the subject-matter of the charge was stolen property, went on to hold that there was evidence before the learned trial Magistrate from which he could have found, but did not do so, that the vehicle was stolen property. The Court of Appeal then proceeded to review the evidence of the prosecution witnesses and came to the conclusion that it was reasonable to infer on the evidence that the vehicle was stolen property.
Learned counsel submitted that the learned trial Magistrate having made no findings at all on the issue, there was no basis for the inference. He submitted that the trial Magistrate relied entirely on the plea of guilty by the 1st accused to the charge. This plea was erroneously taken by the trial Magistrate as proof of the charge against the appellants. He assumed that there was no dispute that the vehicle was stolen property.
It was submitted that by pleading not guilty to the charge, appellants had put the onus on the prosecution to prove all the essential ingredients of the offence. Mr. Ulegede for the respondent in his reply submitted that there was a finding on the question whether Exh. D. the vehicle was stolen property. He relied for his submission on the judgment of the trial magistrate and the definition of stolen property in section 316 of the Penal Code.
It is relevant to quote the passage relied upon which runs thus:-
“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 in respect of which the offence of criminal breach of Trust has been committed. Exhibit D is therefore stolen property and I so hold.”
There is no doubt that with respect to the charge against the 1st accused. The prosecution has proved that Exh. D.. is stolen property. This is based on his admission in his plea of guilty to the charge. With respect to the other accused persons, the present appellants, who pleaded not guilty to the charge; Non sequitur. The prosecution still has the onus of proving the essential ingredient that the vehicle is stolen property, as regards the charge against them.
A careful review of the proceedings reveals that the trial Magistrate assumed and took it for granted that the essential ingredient that the vehicle was stolen property, having been satisfied by the plea of guilty by the 1st accused, did not require further proof as regards the other accused persons. He was patently mistaken and in error. The High Court also committed the same error. On appeal in the High Court, the Court said;
“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 whilst adopting the same attitude, recognised the essential legal difference, when in the leading judgment it said:-
“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:”
But the judgment went on to observe correctly as follows:-
“The statement of the 1st accused who did not give oral evidence and his plea of guilty of the charge of criminal breach of trust in relation to the said motor vehicle could properly be relied upon for the purpose of making the finding of fact during the trial of the appellants that the motor vehicle was stolen.”
Notwithstanding this view, the Court of Appeal went on to hold as 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, 2nd accused.”
The contention of Chief Akinrele is that the trial Magistrate made no finding on the essential ingredient of the charge against appellants that, the vehicle was stolen property. There was clearly no finding in the charge against appellants that the vehicle was stolen property. The question therefore, is whether the appellate Courts were entitled in the absence of a finding to infer from the evidence that appellants ought to have known that Exh. “D” was stolen property, I think they are not.
I think Chief Akinrele was on firm ground in his submission that the inference in the conclusion drawn by the Court of Appeal can only be predicated on credible and acceptable evidence at the lower court and not because it was recorded in the proceedings without a consideration of credibility or acceptability. There being no such evidence the Court of Appeal will be usurping the functions of the trial courts and performing a judicial function in respect of which it had no jurisdiction not being the trial court. As I had already pointed out, the Court of Appeal relied on its conclusion on the evidence of P.W.1. There was no finding by the trial Magistrate on that evidence. The appellate courts below should not have affirmed the trial senior magistrate whose decision was not based on any finding on the evidence before him. The case of Ayanwale v. Atanda (1988) 1 N.W.L.R. (Pt.68) 22 relied upon by respondent is a civil case and not applicable. Indeed the issue did not arise in that case. The issue in that case was the reappraisal of evidence already evaluated by the trial court. The courts below were therefore wrong to have come to the conclusion that the Exh. D was stolen property.
Having failed to establish the essential ingredient that Exhibit “D”, the subject matter of the charge is stolen property. Cassus cadit. The commission of the offence could therefore not have been proved against the appellants beyond reasonable doubt in the absence of an essential ingredient of the offence.
The third and fourth issues could be taken together. It was the finding of the trial senior Magistrate, that on the evidence before him, the transaction was an out and out sale to the appellants. He held that there was no pledge. This finding led him to the conclusion that the conduct of appellants was dishonest and that they Bought to know that the subject-matter of the transaction was stolen property.
In arriving at this conclusion he relied on his evaluation of the evidence. At p. 50 lines 16 – 19 he said:
“I have reproduced Exh.E which is the confessional statement of the 1st accused/convict to show that his instruction to 2nd accused was that, the 2nd accused should sell Exh. D and not to o pledge:
Again, he said, at p.50 lines 23 ff
“The sum total is that the statement of 1st accused/convict as well as Exhs. E & F and the evidence of the 2nd accused in court which corroborated each other stand facing the statement of accused 3 and 4 as well as their evidence in court on oath which also corroborate each other.”
After this observation the trial senior Magistrate, went on at p. 52, lines 1 – 5 to say:
………….. I have earlier on stated that the evidence and statement of accused 2, as well as the statement of accused l/convict implicate accused four. Both accused 3 and 4 claim that the transaction was a pledge and rely on Exh. K.”
Chief Akinrele submitted that the trial Magistrate relied on the statement of the accused person out of court in coming to the conclusion in rejecting the evidence of the appellants and finding them guilty. It was submitted that the finding is perverse and could not be regarded as having resulted in the prosecution proving the charge against the appellants beyond reasonable doubt.
An important feature of this evidence is the trial senior Magistrate, determining the documents by a comparison of the signatures on them without the assistance of an expert. Learned counsel to the respondent has argued in his reply that the trial Magistrate can without the intervention of an expert identify signatures on a disputed document and form his own opinion of such document. Learned counsel cited and relied on R. v. Appeal (1951) 13 W.A.C.A. 143; Queen v. Wilcox (1961) 2 SCNLR 296 (1961) All N.L.R. 631 at 633. R. v. Smith (1910) 3 Cr. App. R.87; R. v. Richard (1919) 13 Cr.App.R.140. Although the English case of R. v. Tilley (1961) 3 All ER 406 has cautioned on the dangers of leaving comparison of signature on a document to a jury unaided by an expert, it is not unusual for the court to firm its own opinion unaided by experts as to hand writing in clear cases where a Judge sits without a jury. In R v. Smith 3 Cr. App. R. 87 and Rex v. Richard 13 Cr. App. R. 140 the Court of Criminal Appeal in England formed its own opinion by comparing the hand-writing alleged to be that of the appellant, with a genuine specimen of his hand-writing.
The issue was decided in R v. Appea 13 W.A.C.A. 143, where the West African Court of Appeal held that it was entitled to form its own opinion by comparing the hand-writing claimed to have been forged with the genuine specimen.
In the case of Duriminiya v. Commissioner of Police (1961) N.R.N.L.R. 70, the court drew the distinction between a comparison made in open court, and that not made in open court. Whereas those in court constitute part of the proceedings and are acceptable, those out of court are regarded as if in the process of investigation, and not acceptable. In doing the latter, the magistrate will not be trying the case he will be regarded as investigating. It is not the function of the court in our adversary procedure to investigate. There was evidence in the instant case that the investigation was made in chambers and not in open court, and therefore falls within the principles laid down in R. v. Wilcox (supra) and Duriminiya v. Commissioner of Police (supra).
This is however not the issue in this case. Appellants are not denying that the transaction was a pledge. The case before us was not a trial with a jury.
I now turn to the last issue concerning the weight of evidence. This relates to the deductions made by the trial Magistrate on certain facts established at the trial. These are that the negotiation was hastily concluded and within 2 days. The transaction was favourable to the appellants. The 2nd accused and his brother bore different surnames. There was a difference in the signatures of the 2nd accused in his statement to the Police. The vehicle, subject matter of the charge, was securely parked in a garage.
Notwithstanding the argument of learned counsel to the respondents I have some difficulty in appreciating how each of the factors, a combination of any two or more, or all of them as a whole could support the deduction that Exh. D, was stolen.
In the first place, there is clearly no evidence on the finding that the vehicle was stolen property. The conclusion that there was a sale rather than a pledge is perverse, since there is no credible evidence in support. A hasty conclusion per se is not necessarily evidence of dishonesty. Neither is it unusual for two brothers to bear different surnames. This is so even where they are of the same parents. Especially common is it when they are brothers uterine or otherwise within the con of the African family. The parking of a car in the garage securely kept is normal and should raise no suspicion. Appellant’s evidence is that the transaction was a pledge. The sum of N10,000.00 is therefore not suspicious for the transaction.
Our law on circumstantial evidence is well settled. The circumstances relied upon should point unequivocally, positively, unmistakably and irresistibly to the fact that the offence was committed and that accused committed it – See Abieke v. The State (1975) 9-11 S.C. 97; (1975) 1 All NLR 57. The circumstances enumerated above cannot point irresistibly to appellants in respect of the commission of the offence.
For the reasons I have given, and in addition to the fuller reasons in the judgment of my learned brother Kutigi, J.S.C, the appeal of the appellants are hereby allowed. The conviction and sentences affirmed in the court below are hereby set aside. Appellants are accordingly acquitted and discharged.
SC.225/1990
