MAMMAN BUBARE v. THE STATE
March 30, 2025HAJJA ZARA GONIRAM VS MR. ANTHONY SUNDAY
March 30, 2025Legalpedia Citation: (2020) Legalpedia (CA) 18111
In the Court of Appeal
HOLDEN AT GOMBE
Mon Nov 9, 2020
Suit Number: CA/G/468/2019
CORAM
PARTIES
MUSTAPHA IBRAHIM
THE STATE
AREA(S) OF LAW
SUMMARY OF FACTS
This is a sister Appeal to Appeal No. CA/G/521C/2019 and Appeal No. CA/G/522C/2019. On 17-06-18, one Hussaini Idris aged 19 years, went out with his Tricycle, commonly referred to as “Keke Napep”, for commercial purposes in Maiduguri and has not been found to date. Family and friends embarked upon a search for the young man, extending the search to Police Stations, Hospitals and Morgues, with announcements in media outfits such as BRTV and NTA Maiduguri, to no avail. However, 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) who had paid the sum of N170, 000.00 for the Tricycle to Kyari Babagana (an officer with the Nigerian Customs Service) and Babagana Grema, both of whom were the 1st and 2nd accused persons who also stood trial with the Appellant before the trial Court. This was after the Appellant had ostensibly paid 1st and 2nd accused persons the sum of N350, 000.00 earlier on as part payment for the Tricycle. Mohammed Ibrahim’s mother testified as PW1 and she is also the biological mother of this Appellant. Upon her insistence for a receipt to confirm payment for the Tricycle, the 1st and 2nd accused persons in conjunction with the Appellant, procured a receipt/invoice from the 4th and 5th accused persons (who were dealers in Tricycles).
After Police investigations, the Appellant as well as the 1st, 2nd, 4th and 5th accused persons, were arraigned before the Bornu State High Court on a five-count charge of conspiracy to kidnap, theft, kidnapping, dishonestly receiving stolen property and forgery contrary to Sections 97, 287, 273, 317 and 364 respectively of the Penal Code (supra). All the accused persons pleaded not guilty to the charge. In proof of its case, the Respondent adduced evidence through eight (8) witnesses and ten (10) Exhibits; while each of the accused persons testified in their defence, but called no witness. At the close of trial, Judgement was delivered on September 2, 2019 wherein the 1st and 2nd accused persons were convicted for the offence of theft punishable under Section 287 of the Penal Code (supra), while the Appellant (as 3rd accused person) was convicted for the offence of dishonestly receiving stolen property punishable under Section 317 of the Penal Code (supra). The 4th and 5th accused persons were however discharged and acquitted for the offence of forgery. Piqued by his conviction and sentence, the Appellant filed an appeal to this Court
HELD
Appeal Succeeds In Part
ISSUES
Whether upon careful and dispassionate appraisal of the evidence in this case, the Respondent discharged the requisite burden of proof upon it so as to justify the conclusion, conviction and sentence of the Appellant for the offence of dishonestly receiving stolen property contrary to Section 317 of the Penal Code Laws of Borno State, 1994. Whether the trial Court was right in convicting the Appellant for the offence of dishonestly receiving stolen property when the alleged Keke Napep (Tricycle) was not tendered in evidence and was in possession of the owner. Whether the sentence of the Appellant to fourteen (14) years imprisonment (maximum) for the offence of dishonestly receiving stolen property contrary to Section 317 of the Penal Code is not heavy and/or excessive in the circumstances of the case
RATIONES DECIDENDI
OFFENCE OF DISHONESTLY RECEIVING STOLEN PROPERTY – DEFINITION OF OFFENCE OF DISHONESTLY RECEIVING STOLEN PROPERTY UNDER SECTION 316 OF THE PENAL CODE, LAWS OF BORNO STATE
“The offence of dishonestly receiving stolen property is defined under Section 316 of the Penal Code, Laws of Borno State (supra) and it is punishable under Section 317 as follows:
“317. Whoever dishonestly receives or retains any stolen property knowing or having reason to believe 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.”
OFFENCE OF DISHONESTLY RECEIVING STOLEN PROPERTY – INGREDIENTS A PROSECUTION MUST PROVE TO SECURE A COVICTION FOR THE OFFENCE OF DISHONESTLY RECEIVING STOLEN PROPERTY
“Thus, as rightly submitted by both learned Counsel for the parties, in order to secure a conviction for the offence of dishonestly receiving stolen property, the prosecution must prove the following ingredients of the offence –
The property must have been received;
It must have been previously stolen;
The person receiving the stolen property must know it was stolen; and
The receiver must intend to deprive the owner of his or her property.
In addition, the term “stolen property” under Section 286 of the Penal Code consists of –
Property under Section 286 (supra);
Property acquired through extortion under Section 291 (supra);
Property acquired through robbery under Section 296 (supra);
Property acquired through criminal misappropriation under Section 308 (supra);
Property acquired though criminal breach of trust under Section 311 (supra); and
Money dishonestly withdrawn from a wrongful credit.
In order to prove that the property is stolen and that the accused person received same knowing or believing it to be stolen, there must be knowledge, which is the mens rea of the offence of receiving stolen property. See Sale V State (2017) LPELR-41992(CA) 8-9, B; Bello V State (2015) LPELR-41838(CA) 19, B-C; Yongo V COP (1992) LPELR-3528(SC) 36, E-G, per Karibi-Whyte, JSC”.
OFFENCE OF RECEIVING STOLEN PROPERTY – WHEN IS THE OFFENCE OF RECEIVING STOLEN PROPERTY PROVED BEYOND REASONABLE DOUBT?
“The sale and/or exchange of goods for monetary value is a commercial activity. As a result, what distinguishes a legitimate transaction involving the exchange of goods from one that constitutes an offence is the manner of the transaction and the mental conception of those that engage in it. Consequently, where the transaction is carried out in a clandestine or furtive atmosphere and where the article involved in the transaction is sold way below the ordinary market price, chances are that there is something unwholesome or fishy going on. When the situation is coupled with one in which it is established that the property was indeed stolen and that the accused received or retained the stolen property, then it will be correct to hold that the offence of receiving stolen property has been proved beyond reasonable doubt – Oluwaseyi V State (2016) LPELR-41121(CA) 33-35, E-A, per Daniel-Kalio, JCA.
PRESUMPTION OF POSSESSION OF STOLEN GOODS – INSTANCE WHEN THE COURT WILL INVOKE THE PRESUMPTION OF POSSESSION OF STOLEN GOODS
“I cannot fault these findings especially in view of the presumption of law in Section 167(a) of the Penal Code Laws (supra) which provides that –
“The court may presume the existence of any fact which it deemed likely to have happened, regard shall be had to the common course of natural events, human conduct and public and private business in their relationship to the facts of the particular case and in particular, the court may presume that:-
A man who is in possession of stolen goods after the theft is either the thief or has received the goods knowing them to be stolen unless he can account for his possession.”
See Alarape V State (2001) FWLR (Pt. 41) 1873; & Oseni V State (1984) 11 SC 44.
SENTENCE – FACTORS AN APPELLATE COURT WILL CONSIDER BEFORE ALTERING A SENTENCE
“It is the law 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. Thus, the factors an appellate Court will consider before altering a sentence are –
The gravity of the offence;
The prescribed punishment for the offence;
The prevalence of the particular class of crime in the locality; and
The circumstances of the offence to see if there are grounds for mitigating the punishment.
See Erujere V State (2017) LPELR-43403(CA) 30-31, D-B per Bada, JCA; Akpakpan V State (2017) LPELR-43484(CA) 15 per Adah, JCA; Omokuwno V FRN (2013) LPELR-20784(SC) per Akaahs, JSC; Njoku V State (2013) All FWLR (Pt. 689) 1972, 1091”.
SENTENCE – WHETHER THE TRIAL COURT IN THE EXERCISE OF ITS DISCRETION CAN IMPOSE A SENTENCE IN EXCESS OF THAT PROVIDED BY LAW
“It goes without saying that a trial Court has a discretion in matters of the sentence to be imposed upon conviction for a crime where the law does not provide for a mandatory sentence. However, as with every form of discretion, it must be exercised judicially and judiciously. A trial Court should not impose a sentence in excess of that provided by law, although it can, in the exercise of its discretion, impose a lesser sentence than that provided by the law having regard to the facts and circumstances of the case before it. However, it is desirable that a trial Court should state in its Judgement the factors that influence its decision. It should be borne in mind that every exercise of discretion must be one geared towards the attainment of even-handed and fair-minded justice to the parties – Musa V State (2012) 3 NWLR (Pt. 1286) 59, 71; Nzegbune V State (2020) LPELR-49670(CA) 53-55, E-F; Omokuwajo V FRN (2013) All FWLR (Pt. 684); Egunjobi V FRN (2002) FWLR (Pt. 105) 896, 937”.
CASES CITED
Not Available
STATUTES REFERRED TO
Evidence Act, 2011|Penal Code Laws|
