The State V. Joseph Nnolim & Anor.(1994)

LAWGLOBAL HUB Lead Judgment Report

ADIO J.S.C.

In the High Court of Anambra State of Nigeria. Awka Judicial Division, the respondents were charged, on three counts, with certain criminal offences. The first count was for conspiracy, the second count was for burglary, and the third count was for stealing. Each of them pleaded not guilty to each of the counts.

The evidence led by the prosecution was that on the 16th day of June, 1988 certain persons during the night, broke into the house of the complainant. P.W.1 at Nneni and stole some of his goods which included a National Video cassette recorder. Exhibit “G”. that the complainant bought, second hand, from the previous owner who had left the country.

The receipt which the previous owner gave to the P.W.1 in relation to the purchase of Exhibit “G” was Exhibit “A “. The model number of Exhibit “G” was NV 2000 EN and its serial number was LIKE 03871. The said numbers were stated in Exhibit “A”. At the time that the P.W.1 bought Exhibit “G” from its aforesaid previous owner, the hinges of the channel select or cover were damaged.

Some days after the burglary, and to be precise on the 20th June, 1988 the P.W.1 saw Exhibit “G” displayed for sale in the shop of the 1st respondent at Onitsha. The P.W.1 told the court that the distinctive features which enabled him to identify Exhibit “G” were the damaged hinges of the cover of the channel selector, the model number, and the serial number. When questioned by the police, the 1st respondent alleged that he bought Exhibit “”G” from the 2nd respondent and he produced Exhibit “Q” as the receipt given to him by the 2nd respondent.

The 2nd respondent alleged that he bought Exhibit “G” from the P.W.3 and Exhibit “E” and “N” were the receipts that he obtained in relation to the transaction which took place in February 1988. The allegation by the P.W.3 was that he bought the video recorder, new, from Donmarts Nigeria Enterprises that gave him a receipt, Exhibit “F’ which did not state the serial number of the recorder. It was proved that the model number of one part of Exhibit “G” and the serial number were tampered with or altered.

The learned trial Judge discharged the respondents in relation to the count of conspiracy. He found the second respondent guilty of burglary and stealing and found the 1st respondent guilty of receiving stolen property knowing it to be stolen and convicted them accordingly. Dissatisfied with the judgment, the respondents appealed to the Court of Appeal which allowed the appeal of each of the respondents and set aside the conviction of each of them. The appellant was dissatisfied with the judgment and has now appealed to this court.

In accordance with the rules or this court, the appellant and the 2nd respondent have filed and exchanged briefs of argument. The appellant, in its brief, set down fives issues for determination and the 2nd respondent, in his brief, set down four issues for determination. The appellant filed a reply. Having regard to the grounds of appeal and the issues set down in the briefs of the parties some of which were repetitive, the issues set down in the appellant’s brief, as suitably amended. are sufficient for the determination of this appeal. They are:-

(1) Whether the Court of Appeal was right in holding that the prosecution did not establish free from doubt, that Exhibit “G” was the property of the complainant (P.W.1).

(2) Whether the prosecution was bound to call as a witness Donmart Nigeria Enterprises or its representative and, if so, whether failure to call a representative of the firm to testify for the prosecution was fatal to the case of the prosecution.

(3) Whether the Court of Appeal was right in discharging and acquitting the 1st respondent who though he filed notice and grounds of appeal, did not file a brief or present oral argument in the Court of Appeal.

(4) Whether the Court of Appeal was right in interfering with findings of fact made by the learned trial Judge, in relation to Exhibit “G” which were not perverse when the Court of Appeal had no opportunity, which the learned trial Judge had, of seeing and comparing Exhibit “G” with the same and other models of video recorder of the same make.

(5) Was there any conflict between the evidence of P.W.3 and the evidence of P.W.4, and, if the answer is in the negative, was the Court of Appeal right to prefer the evidence of P.W.3 to the evidence of P.W.4 on the question whether the P.W.3 could identify the video recorder which he sold to the 2nd respondent, when the serial number of the said recorder was not stated on the relevant receipt

The question raised under the first issue is really fundamental. It will be considered with the question raised under the fourth issue. If, in fact, Exhibit “G” did not belong to the P.W.1, then the prosecution’s case against the respondents could not be sustained. The learned trial Judge considered the question and inter alia, made a finding that Exhibit “G” belonged to P.W.1. Indeed, that was one of the reasons for finding the respondents guilty and for convicting them. When this matter came before the Court of Appeal, the court did not share the view of the learned trial Judge. It felt that there was some doubt on the question whether Exhibit “G” belonged to the P.W.1. The learned Justice at the Court of appeal, who read the lead judgment stated, inter alia. as follows:-