Facts
One Hussaini Idris on June 6, 2018 went out with his tricycle and had not been found since then. His father, PW2, embarked upon a search for him, to no avail. On September 24,2018, the tricycle was found with one Mohammed Ibrahim, the Appellant’s brother. Upon being accosted, Mohammed stated that it was his mother, PW1 and elder brother who bought it for him from a Customs Officer. Police investigations led to the arrest of the Appellant and four other suspects, namely: Babagana Grema, Mustapha Ibrahim, Dauda Musa and Sayinna Modu. All five suspects were then charged before the High Court of Justice Borno State for the offences of conspiracy to kidnap, kidnapping, theft, receiving stolen property and forgery contrary to Sections 97, 273, 287, 317 and 364 of the Penal Code Laws of Borno State, 1994.The Appellant and Babagana Grema were together charged and they both pleaded not guilty.
At the close of trial, the trial Judge found the Appellant and Babagana Grema not guilty of the offences of conspiracy to kidnap and kidnapping, but guilty of the offence of theft, and sentenced them accordingly. Aggrieved by the decision of the trial Court, the Appellant appealed to the Court of Appeal.
ISSUES FOR DETERMINATION
The Court considered the appeal on the following issues:
- Whether the Respondent has discharged the requisite burden of proof upon it so as to justify the conclusion, conviction and sentence of the Appellant for the offence of theft contrary to Section 287 of the Penal Code Laws of Borno State, 1994.
- Whether, given the surrounding circumstances of this case, the trial Court was right in relying on the doctrine of recent possession in convicting and sentencing the Appellant for the said offence of theft.
- Whether the conclusion by the trial Court Judge that Mohammed Ibrahim was able to explain how he came about being in possession of the tricycle was not perverse.
- Whether the sentence of the Appellant to five years imprisonment (maximum) for the offence of theft contrary to Section 287 of the Penal Code is not excessive.
APPELLANT’S SUBMISSIONS
On issue one, two and three, the Appellants’ Counsel submitted that the Respondent failed to establish the ingredients of the offence of theft under Section 287 of the Penal Code Laws (supra).He contended that all eight witnesses called by the Respondent did not prove that the Appellant moved the tricycle out of the possession of Hussaini Idrisa. Therefore, that the finding of the trial Court to that effect as well as the finding that it was so removed without the consent of PW6 (the owner) are perverse. He relied on Mohammed V State (2008) FWLR (Pt. 30?) 2623, 2631; FRN V Adamu Nuhu (2015) LPELR-CA/K/295/C/2014.
Appellant’s Counsel submitted that there was no evidence establishing the offence of theft against the Appellant. In addition, the stolen tricycle was not tendered in evidence even though it was listed in the proofs of evidence filed by the Respondent. Counsel submitted that the non-production of the tricycle amounts to a failure to establish the case or withholding of evidence, thereby invoking the provision of Section 167(d) of the Evidence Act, 2011
Appellant’s Counsel conceded that although where direct evidence to establish the guilt of an accused is unavailable, resort may be had to Section 167(a) of the Evidence Act (supra) under the doctrine of recent possession, he however contended that the essential ingredients for the invocation of this provision were not established against the Appellant. He therefore, submitted that the conviction cannot be sustained and relied on the following authorities: People of Lagos State V Umaru (supra) 684, 698; Haruna V State (2018) All FWLR (Pt. 969) 689, 712.
Appellant’s Counsel also submitted that Mohammed Ibrahim in whose possession the tricycle was found did not testify as to how he came to be in such possession, and thus the finding of the trial Judge that Mohammed’s mother and brother bought the tricycle from the Appellant was perverse.
On issue four, Appellant’s Counsel conceded that an appellate Court will not interfere with a sentence imposed by a trial Court unless it is satisfied that the trial Court has erred in principle; a severe punishment can still be reduced where the Court finds substantial evidence of mitigating factors or circumstances in favour of the Appellant. See Egunjobi V FRN (2002) FWLR (Pt. 105) 896, 937.He submitted that considering mitigating factors such as the Appellant being a first offender and that he pleaded for leniency, the sentence imposed was excessive.
RESPONDENT’S SUBMISSION
Counsel for the Respondent submitted that the Respondent discharged the burden placed on it to prove the ingredients of the offence of theft under Section 287 of the Penal Code Laws (supra).
Respondent’s Counsel submitted that on the ingredients of the offence of theft, PW1 testified that she bought the tricycle for her son, third accused person, from the Appellant. She then gave it to her other son, Mohammed Ibrahim, in whose possession it was subsequently recovered by the Police. Counsel submits that the Appellant did not give any evidence to discredit this evidence on the issue of possession. Respondent’s Counsel submitted that the Court could safely convict on this evidence which is undisputed and unchallenged – Nkebisi V State (2010) 41 NSCQR 934, 950, A-E.
Respondent’s Counsel further submitted that the tricycle found in the possession of the Appellant and seond accused is the same tricycle PW6 testified that he bought and gave it to his nephew, Hussaini Idrisa, who is still missing till date. On the non-production of the tricycle in Court, Counsel submitted that it is not fatal to the case unless it is shown to have occasioned a miscarriage of justice –Baalo V FRN (2017) 14 NCC 1, 52.
Respondent’s Counsel submitted that the Respondent relied on circumstantial evidence to prove the guilt of the Appellant; and that the Court can safely convict on circumstantial evidence which is compelling, cogent and which unequivocally points to the guilt of the accused person – State V Ajayi (2012) 14 NCC 58, 102-103, H & A-B.
On issue four, Respondent’s Counsel submitted that that the trial Court acted judicially and judiciously in awarding the maximum sentence of five years imprisonment as provided under Section 287 of the Penal Code Laws (supra). This provision of maximum sentence gives the learned trial Judge discretionary powers to reduce or award such punishment based on the evidence before it. She submitted that there is no hard and fast rule to fetter the exercise of judicial discretion – Johnson V FRN (2016) LPELR-(?) 35-36, F-E.
RESOLUTION OF THE ISSUES
In resolving issue one, two, and three; the Court stated the ingredients for the offence of theft under Section 287 of the Penal Code, Laws of Borno State, 1994. The Court held that the burden of proof of the charge levied against the Appellant is on the prosecution, now Respondent, and the standard is beyond reasonable doubt – Section 135 of the Evidence Act, 2011.
The Court held that circumstantial evidence is one the means of proving offences in a Court of law. However, before a Court of law will act on the circumstantial evidence before it, it must satisfy itself that such character of evidence is cogent, compelling and points irresistibly to the fact that the accused person committed the offence. It must be such that irresistibly flows from established facts – See Vivian Odogwu V State (2013) LPELR-42802(SC) 23, B-D. The Court held that from the pieces of circumstantial evidence, the conclusion is that the Appellant and the second accused stole the tricycle and disposed of it for monetary gain.
In respect of the failure of the Respondent to call Mohammed Ibrahim in whose possession the tricycle was recovered, as a witness, the Court held that the prosecution is not bound to call a host of witnesses where the witnesses presented are sufficient to prove the case against the accused person. The Court further held that the failure to tender the stolen tricycle in evidence is not fatal to the prosecution’s case since the ownership and identity of the tricycle was not in issue. The Court thus resolved issues one, two, and three in favour of the Respondent and against the Appellant.
In resolving issue four, the Court held that an appellate Court will not interfere with the sentence imposed by a trial Court unless it is shown to be manifestly excessive in the circumstances or absolutely wrong in principle. See Erujere V State (2017) LPELR-43403(CA) 30-31, D-B per Bada, JCA; Njoku V State (2013) All FWLR (Pt. 689) 1972, 1091.The Court further held that a trial Court has a discretion in matters of sentencing upon conviction for a crime where the law does not provide for a mandatory sentence. However, it must be exercised judicially and judiciously. See – Musa V State (2012) 3 NWLR (Pt. 1286) 59, 71;Egunjobi V FRN (2002) FWLR (Pt. 105) 896, 937. The Court held that the trial Judge was influenced by the missing Hussaini Idrisa (who is also a teenager) but it had earlier found that the Respondent failed to prove the offences of conspiracy and kidnapping against the Appellant andseondnd accused. Thus, allowing the same issue to have influenced his consideration in imposing the maximum sentence thereafter, is unwarranted. The Court further held that the Respondent confirmed that the Appellant had no previous conviction and so was a first offender. Also, the trial Judge did not indicate that the offence of theft was so rampant in the community to warrant the imposition of the maximum sentence in order to serve as a deterrent to others of like mind. See Adeleye V FRN (2016) All FWLR (Pt. 856) 312, 363. The Court thus resolved issue four in favour of the Appellant and reduced the sentence to four (4) years imprisonment.
HELD
The Court allowed the appeal in part. The decision of the trial Court convicting the Appellant of the Offence of theft was affirmed but the sentence imposed was reduced from five years to four years.
Appearances:
- M. Konto Esq., with him, A. M. Umar Esq. – For Appellant(s)
- Alkali Esq., Principal State Counsel with the Ministry of Justice, Borno State –For Respondent(s)
Compiled by LawPavilion
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