Alhaji R.A. Afolabi (Trading As Ifelodun Bros). V Polymera Industries (Nig.) (1967)
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The appellant, a Storekeeper employed by Messrs. G. B. Ollivant (Nigeria) Ltd. at their Shell Depot in Ibadan, was convicted by the Chief Magistrate Ibadan on all the twelve counts on which he was charged with stealing specific items of goods the property of his employer. This conviction was upheld on appeal to the High Court, against which Judgment the appellant has filed eight grounds of appeal in addition to the two contained in the Notice of Appeal. In arguing these grounds of appeal learned Counsel urged that:-
1. The learned Judge on appeal misdirected himself in upholding the judgment of the trial Magistrate convicting the appellant of stealing twelve items out of the twenty-three shown on Exhibit “A” when there was no evidence before the Court as to which of these items were normal shortages and which the appellant sold and converted to his own use.
2. The learned Judge on appeal erred in upholding the Judgment of the trial Magistrate convicting the appellant when material witnesses, like the appellant’s assistants and labourers were not called and important documents like waybills for inter-depot transfers, and invoices, were not tendered in evidence.
3.The learned Judge on appeal was wrong in law in his decision, having regard to the decision in Waziri Chingi v. The Queen F.S.C. 137/1958
4. The learned Judge on appeal misdirected himself by non direction on the effect of s. 386 of the Criminal Code with regard to the evidence before him.
The trial Magistrate, after reviewing the evidence for the Prosecution and the Defence, went on to say that:-
I am quite satisfied that the evidence for the prosecution is true and I accept it. I am quite satisfied that the accused told the Prosecution Witness 1 that he sold the stock, which he had no right to do, and used the money for his election expenses. This evidence is supported by that of Prosecution Witness 2. The Prosecution Witness 1 does not seem even interested in the prosecu-tion of the accused, and I can find no reason why he should have lied against the accused as the accused has suggested.
The trial Magistrate then went on to deal with other evidence led by the Crown as to the action of the appellant before and at the time his stock was checked and found that such action was meant to deceive. On appeal the fol-lowing passage in the judgment of the learned Judge on appeal shows the im-portance he himself placed on the alleged admission made by the appellant; it reads thus:-
It is my view that having regard to the evidence and the admission alleged to have been made by the appellant to the Man-ager and to the 2nd Prosecution witness, the learned trial Magis-trate was justified in coming to the conclusion that larceny of the items contained in the charges was proved.
and a little lower down in the judgment that:-
It is my view that as the appellant admitted that he had sold some of the stock and used the proceeds for his election expenses, there was no necessity to have called any of the assistants and labourers to give evidence for the prosecution.
We have considered the point, which is important, in our view, of the effect of the admission made by the appellant who was charged with stealing not all the twenty-three items in Exhibit ‘A’, but only twelve out of the twenty-three. On this point the 1st Prosecution Witness says:-
As a result, I called for the accused and enquired from him how the shortage in his stock had occurred. The accused told me that he had been busy with his Election Campaign, and that he had taken certain of the Shell stock, and sold them to assist in his expenses. The accused did not say how much he used.
The evidence of the 2nd Prosecution Witness when questioned by the Court reads thus:-
Q. How many items on Exhibit ‘A’?
A. There are 23 items on Exhibit ‘A’
Q. Which of these items would you say are normal shortages?
A. I cannot say which of the items are normal shortages.
Q. Which of these items did the accused say he sold and used the money for Election Expenses?
A. The accused did not specify which of the items he said he sold and converted the funds to his own use.
It is difficult to understand how such reliance could have been placed on this alleged admission of the appellant in view of these answers elicited from specific questions put by the Chief Magistrate himself to this witness. We assume that both the Chief Magistrate and the learned Judge on appeal were using the word “admission” as synonymous with the word “confession”, and it is in this respect that Waziri Chingi v. The Queen, F.S.C. 137/1958 (Supra), is pertinent.
The relevant passage reads as follows:–
The point was aptly put in the case R. v. Sykes 8 C.A. R. 233, at p. 236, in the summing up to the jury, as follows:–
‘A man may be convicted on his own confession alone; there is no law against it. The law is that if a man makes a free and voluntary confession which is direct and positive, and is properly proved, a jury may, if they think fit, convict him of any crime upon it. But seldom, if ever, the necessity arises, because confessions can always be tested and examined, first by the police, and then by you and us in Court, and the first question you ask when you are examining the confession of a man is, is there anything outside it to show it was true? Is it corroborated? Are the statements made in it of fact so far as we can test them true? Was the prisoner a man who had the opportunity of committing the murder? Is his confession possible? Is it consistent with other facts which have been ascertained and which have been, as in this case, proved before us?
One cannot but come to the conclusion that this alleged confession fails in all respects to satisfy the requirements of what a confession should be. In the first place it is neither direct nor positive as far as the twelve items, with which he was charged, were concerned. In the second place, the evidence of the 2nd Prosecution Witness would seem to negative the possibility of its truth. Such evidence reads thus:-
I did some checking during November, 1959, but there was no shortage. I did not do the normal monthly checking at the end of November, 1959. It was done by Mr. Adams . There was spot checking by me between 15th and 25th December 1959. I discovered no shortage then.
These articles are said to have been stolen during the month of December, 1959. The alleged admission or confession states that the appellant admits selling goods and using the proceeds for electioneering campaigns. The elections were admittedly held on the 12th December and yet at the end of November when a check was made by Mr. Adams, who was never called to give evidence, there is nothing to show that there was shortage; further, a spot check held even some 3 to 12 days after elections did not disclose any shortage. Mr. Eboh for the Crown has endeavoured to argue that a “spot check” may not disclose shortages, but there is nothing on record as to the effect of a “spot check” and the statement of Counsel on appeal would not supply that deficiency. Again, as in Waziri Chingi v. The Queen, (supra) the alleged confession in the present appeal was retracted; further, there was evidence by the defence about how the election expenses were paid for, which, if accepted, would cast doubt as to the truth of the making of the alleged confession. It is true that the trial Magistrate said he was unable to rely on this evidence, but in our view had he taken into consideration all the matters above related, we are not in a position to say he would have come to this same view about the evidence for the defence.
There is no need for us to go into the merits or otherwise of the other grounds of appeal, for without this alleged confession the conviction cannot be supported. For these reasons this appeal must succeed and the conviction of the appellant is set aside, as is the sentence, and verdict of acquittal is entered in their place.
Other Citation: (1967) LCN/1477(SC)