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REX
V.
ISA BRAIMAH AND ANOTHER
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT LAGOS, NIGERIA
16TH DAY OF OCTOBER, 1943
2PLR/1943/36 (WACA)
OTHER CITATION(S)
2PLR/1943/36 (WACA)
2PLR/1943/36 (WACA) 197 – 199
LEX (1943) – WACA PP. 197 – 199
BEFORE THEIR LORDSHIPS:
BAKER, AG. C.J., NIGERIA
BROOKE, J.
WADDINGTON, J.
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BETWEEN:
REX – Respondent
AND
1. ISA BRAIMAH
2. JOEL UGWU} RE JOEL UGWU – Appellant
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REPRESENTATION
J. I. C. Taylor — for Appellant
N. G. Hay — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE ISSUE(S):- Receiving of stolen goods contrary to section 427 of the Criminal Code (Nigeria) — Guilty knowledge — Recent possession – How proved
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CASE SUMMARY
On 3rd May first accused was released from Kaduna Prison, where he has spent seven months, and went to second accused’s house to stay. Second accused was a warder in the prison, but first accused was not in his gang.
On 5th and 7th May, thefts occurred in the neighbourhood, and on the 9th May, second accused sent some of the stolen property to his brother at Enugu with instructions to sell them at any price he thought good. The first accused was convicted of shopbreaking and stealing the goods, and the second accused was convicted of receiving them. The second accused appealed on the grounds that there was no evidence that he knew or ought to have known the property had been stolen.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the appeal):
The circumstances fully justified a finding of guilty knowledge.
Cases referred to:-
Otto Gfeller v. The King, 9 W.A.C.A. 12.
Abramavitch (1914) 84 L.J .K.B. 396; 11 Cr. App. R. 45
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MAIN JUDGMENT
The following joint judgment was delivered:-
BAKER, AG. C.J., NIGERIA, BROOKE AND WADDINGTON, JJ., NIGERIA
There were two counts of breaking into a shop and stealing against the first accused who was convicted on both and has not appealed and the third count charges the second accused with receiving stolen property contra. section 427 of the Criminal Code, being 22 pieces of cotton goods alleged to have been stolen in the first counts and 8 pieces of the same material out of the shown in the particulars on the second count: he was convicted and sentenced to three years I.H.L. and appeals against the conviction.
The first accused was released from Kaduna Prison where the second accused was a warder on the 3rd of May last: the thefts occurred on the 5th and 7th of May and on the 12th of May the thirty pieces of cloth identified by the owners were found in possession of the second accused’s brother at Enugu over 400 miles away to whom he had sent them to sell for him. He admitted he purchased them from the first accused who was occupying a room in his house and sent them to Enugu for sale but did not know either that the accused had just been released from prison or that the clothe were stolen. The letter to the brother was dated the 8th of May.
There were five original grounds of appeal:-
1. The learned Judge was wrong to convict in the absence of evidence that I knew at the time of receiving that the property was stolen.
2. The learned Judge erred in law in holding that I ought to have known the property was stolen in view of the antecedent of the seller
3. There was no evidence that I knew the seller had previous convictions.
4. The learned Judge was wrong to convict in the absence of clear proof that I knew the property had been stolen and not merely that I ought to have known.
5. Verdict against the weight of evidence.
and the following two grounds were added that the learned trial Judge erred in Law.
1. In failing to warn himself of the evidence of Isa Braimah, an accomplice.
2. In convicting the appellant on the uncorroborated evidence of Isa Braimah, an accomplice.
Counsel for the appellant argued mainly on the grounds that there was no evidence of guilty knowledge at the time of receipt, that the intrinsic value of the goods, was not shown, that the statement of the first accused an accomplice was not corroborated and that hie evidence is not to be trusted as he made contradictory statements: the learned Judge, counsel continued, disbelieved his statement and so was left with hie evidence before the court which without corroboration was insufficient to convict. He referred to cases in which it has been held that the receiver cannot be convicted on the evidence of the principal felon, and contends. that there was a misdirection in that no warning as to the necessity for corroboration appears in the judgment, that the appellant’s story might reasonably be true and that there was no legal evidence on which he could be his finding of guilty knowledge. Counsel for the Crown argued that the judgment may not have been exhaustive but there was ample evidence of guilty knowledge. The learned Judge actually gave his reasons as follows:-
“On May 5th, Lawani’s shop was broken into and 44 pieces of assorted cotton prints were stolen. On May 7th, Job’s shop was broken into and 11 pieces stolen. On May 9th, the 2nd accused sent 22 of the pieces stolen from Lawani and 8 of the pieces stolen from Job by train to a brother at Enugu for him to sell.
“1st accused who stole these things is living in the house of the 2nd accused. He was a prisoner in Kaduna prison for seven months, and the 2nd accused is a warder in the same prison. The 1st accused was discharged from prison on the 3rd May, and went straight from there to 2nd accused’s house. I disbelieve the 2nd accused’s denial of having known the 1st accused before he came to his house. There are many prisoners in the prison and 44 warders, and the 1st accused was employed as a tailor, and was not in the 2nd accused’s gang. But seven months is a long time and the 2nd accused keeps a sewing machine of his own and so that might have been how 2nd accused came to know a prisoner not in his gang.
I have not forgotten that the confessions made to the police by the 1st accused, in which he mentions the 2nd accused, are not evidence against the latter. These confessions are not included in my reasons for concluding that the 2nd accused received these 30 pieces of cotton print knowing them to have been stolen.”
The recent judgment of their Lordships of the Judicial Committee of the Privy Council, Otto George Gfeller v. The King has provided useful guidance as to the circumstances in which guilty knowledge may be inferred and the following passage may be quoted:-
“The learned judge dealt with the charges of receiving on the basis of the law laid down in the well-known case of Abramavitch (1914) 84 L.J.K.B. 396. II Crim. App. Rep. 1. His note states that he read the judgment in that case to the jury and told them:
“that upon the prosecution establishing that the accused were in possession of goods recently stolen they may in the absence of any explanation by the accused of the way in which the goods came into their possession which might reasonably be true find him guilty, but that if an explanation were given which the jury think might reasonably be true, and which is consistent with innocence although they were not convinced of its truth, the prisoners were entitled to be acquitted inasmuch as the prosecution would have failed to discharge the duty cast upon it of satisfying the jury beyond reasonable doubt of the guilt of the accused.”
In the present case we are of opinion that the circumstance in which the appellant lodged the first accused, so recently a convict in a prison in which the second accused was a warder, sent the stolen goods to Enugu so shortly after the date at which they were stolen and advised his brother to sell the cloth ”at any prices that you think good fully justified the Judge in holding that there was guilty knowledge and in convicting the appellant of the offence with which he was charged.
The appeal is dismissed and the conviction and sentence of the lower Court affirmed.