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