Olaseni Akinyemi Aiyeola V. The State (1969) LLJR-SC

Olaseni Akinyemi Aiyeola V. The State (1969)

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FATAYI-WILLIAMS, Ag J. S.C.

In the High Court at Lagos the appellant as first accused was jointly charged with one Lazarus Dike (2nd accused) on three counts, namely:- (1) Conspiracy to commit felony contrary to section 516 of the Criminal code; (2) Stealing, contrary to section 3900 (4) (f) of the said Code; and (3)Attempt to commit felony contrary to section 509 of the said Code.  There is also another count of personation which concerned only the second accused.

The particulars of the count dealing with conspiracy state that both accused between the months of May and June, 1968 at Surulere, Lagos, conspired together and with other persons unknown to commit felony, the felony being that of obtaining money by false pretences. Those pertaining to the second count state that the two accused persons between the same months as aforesaid at Lagos stole a land certificate No. LO4383 dated 30th May, 1962, property of the Lagos State Government from the Lagos Lands Registry where it was kept. The learned trial judge found both of them guilty on the first, the appellant alone guilty on the second, and both of them not guilty on the third count.

It is against this conviction that the appellant has now appealed to this Court. Succinctly stated, the case for the prosecution is this. Sometime in April 1968, one Aig Imoukhuede (p.w. 2) took the land certificate (exh. ‘A’) to the Lands Registry in Lagos to have a charge on the property removed. About two weeks later Imoukhuede received a letter dated 7th May, 1986, (exh. ‘J) informing him that work on the certificate had been completed and that he could come to the office and collect it. He later went to the Lands Registry to collect the certificate but it could not be found by Onikoyi (p.w. 6). As a result, Onikoyi, without informing Pratt (p.w. 5) the Deputy Registrar of Titles, gave Imoukhuede land certificate (exh.‘B’).

Exh. ‘B’ contained the same particulars as the missing certificate. Meanwhile on or about the 12th. June, 1968 the appellant, who is a legal practitioner, went to see Abudu, another legal practitioner, in his chambers in Lagos with the lost land certificate (exh. ‘A’). The appellant informed Abudu that the land certificate belonged to one Aig Imoukhuede who wanted to sell the property at 19 Norman Williams Street in respect of which the certificate had been issued, for £6,000. After Abudu had informed him that he had a client who might be interested the appellant left leaving the certificate with Abudu.

Abudu thereupon contacted Dr. Senbanjo (p. w.10) one of his clients and informed him that the property at 19 Norman Williams Street was for sale. Senbanjo then went to see the house where he met Imoukhuede (p. w. 2), who informed him that the house was not for sale.

On receiving this information Senbanjo got in touch with Abudu by telephone and informed him that Imoukhuede, the landlord, said that he was not selling the house. Nevertheless on the following day, Senbanjo went to see Imoukhuede again, accompanied by his Solicitor Mr. Akinyede.

He had with him the letter (exh. ‘F’) from Abudu asking the occupier to permit Dr. Senbanjo to inspect the premises. When he saw Senbanjo a second time Imoukhuede was furious. Sensing that something “fishy” was going on, Senbanjo discontinued the negotiation for the property. As a result of the conversation he had with Senbanjo, Imoukhuede telephoned Abudu and asked why he was sending people to inspect his house when it was not for sale.

Consequent upon what Abudu told him, Imoukhuede made an appointment to see Abudu in his office that same evening, 13th June, 1968, taking with him the second land certificate (exh. ‘B’). Before Imoukhuede’s arrival, however, the appellant had called on Abudu again and Abudu had asked him to produce the owner of the property. In the meantime Imoukhuede arrived at Abudu’s office and showed him the land certificate (exh. ‘B’). On seeing exh. B Abudu showed Mr. Imoukhuede the other land certificate (exh. ‘A’) which the appellant had earlier given to him in respect of the same property. Imoukhuede recognised exh. PAGE| 3 A as the certificate which he had taken to the Lands Registry in April 1968 but which could not be found when he went back to collect it.

Pursuant to this discovery, Imoukhuede claimed exh. ‘A’ but Abudu refused to let him have it. Instead Abudu told Imoukhuede to meet him in the Lands Registry the following morning. Imoukhuede then left. Not long after, the appellant returned to Abudu’s office with the 2nd accused whom he introduced to Abudu as Mr. Imoukhuede. After further discussion during which the selling price was reduced to £4,000 to be paid in costs, it was agreed that they should call at Abudu’s office the following morning to collect the money after executing the necessary papers.

The following morning Imoukhuede went to the Lands Registry to lodge a complaint about the lost certificate with Mr. Pratt, the Deputy Registrar of Titles (p. w. 5), who after further enquiry called in the police. While Pratt, Imoukhuede, and the    police officers who had been called in were discussing the matter, Abudu turned up at the Lands Registry. All of them then went to the Igbosere Magistrate’s Court where they saw the appellant who asked Abudu if everything was all right.

Abudu then observed that it would appear that the certificate which he had handed to him the previous day was not genuine as there was another one with the same name and particulars. To this observation the appellant replied that if Abudu’s client was no longer interested in the property Abudu should return the certificate (exh. ‘A’) to him. Abudu then informed him that the matter had gone beyond that stage, that the police had been called in and would like to know more about the transaction. After further discussion, they all went to Abudu’s office where they were told that the man who had earlier called at Abudu’s office in the company of the appellant and had been introduced to Abudu as Mr. Imoukhuede at the time had been waiting for Abudu but had just left to get some food. He was, however, apprehended later, and charged with the appellant. On being charged with conspiracy and stealing, the appellant made two statements (exhs. ‘P’ and ‘Q’) to the police. In the first statement (exh. ‘Q’) he said, inter alia, as follows:- “On Monday, 10th June, 1968, one person named John Isibor approached me in my chambers at my house at 46, Falolu Road, Surulere, with this document and reminded me that I have seen him before in company of one Mr. Akinola who I know quite well and who lives at 5, Buari Street, Mushin. Anyway I asked for his mission and he told me of a property to be sold and that the document in his hand was the relevant document. I took the document and examined it.

I have no cause to doubt the genuineness of the document, but I told him that I am no longer interested in properties belonging to non-Yorubas in Lagos. However I promised him to consult a colleague of mine and hear his views and informed him to call in again the following day.

I went to Mr. S. O. O. Abudu, solicitor, of 126, Nnamdi Azikiwe same day in the evening and told him of the matter”. He then went to describe how Abudu, after taking the document asked to see the owner, and how after passing on the information to John Isibor, one man called on him two days later and introduced himself as Mr. Imoukhuede whom he later took to Abudu. Because of this information concerning Akinola the police went with the appellant to look for him but he was not at home. The police, however, searched Akinola’s room and took away some documents.

When this search was going on the appellant managed to enter into conversation with one Phillip Aiyekoto (p. w. 13), a co-tenant of Akinola at Buari Street. The gist of this conversation is described by Aiyekoto in his evidence as follows:-  “The first accused took an opportunity of a short absence of three Criminal Investigation Department men to say to me that when Akinola came back I should tell him to see him at home first before going to the Criminal Investigation Department or if he saw that it was not possible to see him, he should tell the Criminal Investigation Department that he Akinola was the man who brought John Obote to the first accused’s house, but if they ask for John Obote’s address he should tell them that he did not know.

That what John Obote gave him for selling a house had turned out to be false and had caused trouble. The first accused asked me not to forget to give Akinola the message”. Following this conversation p. w. 13 wrote a letter (exh. ‘M’) to Akinola (p. w. 12). This letter was later recovered by the police from Akinola when he was searched at the C. I. D. at Panti Street, Lagos, where he had gone on his return from Abeokuta.

Akinola later testified that he did not know anybody called John Obote. In his defence on oath the appellant denied conspiring with anybody in respect of the property He also denied stealing the land certificate (exh. ‘A’). His explanation that it was one John Isibor who told him that the property was for sale and who consequently left the land certificate (exh. ‘A’) with him was, however, rejected by the learned trial judge.

So also was his testimony that it was this same Isibor who sent him the 2nd accused whom he then knew only as Imoukhuede. Significantly enough, however, the 2nd accused in his own defence, stated that it was the appellant and Abudu (p. w. 1) who asked him to pose as the owner of the property covered by the certificate and that when he was later brought to see the appellant at the C. I. D. the appellant denied knowing him. To further questions asked under cross-examination by the appellant’s counsel, he replied as follows:- “I did not go to 1st accused and identify myself as the owner of the property in exhibit A. I had known 1st accused before 13/6/68. The 1st accused knew me to be Dike”.

After considering the case for both the prosecution and the defence, the learned trial judge discountenanced the 2nd accused’s effort to implicate Abudu and found, inter alia, as follows:- I have no hesitation in believing the witnesses for the prosecution in this case. I find therefore that the land certificate, exhibit ‘A’, was stolen from the Lagos Lands “Registry between the completion of action as to the removal of a charge on it and the call of the rightful proprietor of the entry to which it relates, the second prosecution witness, to collect the certificate. I also find that soon thereafter the certificate was given to the first prosecution witness by the 1st accused for the purpose of fining a buyer for the property to which it relates. This much was admitted by the 1st accused himself. From the evidence of the first and tenth prosecution witnesses supported by exhibit ‘F’(the note to the occupier of the property m question), I think the 1st accused must have given Abudu exhibit A on June, 12th 1968 and I so find”.

About the reaction of the appellant when Abudu observed at the Igbosere Magistrate’s Court that the certificate was not genuine, the learned trial judge observed as follows:- “When on June, 14th, the 1st accused was told by Abudu at Abut Courts building that the certificate he gave Abudu (exh. ‘A’) was not genuine his reply was that if Abudu ‘s client was no longer interested Abudu should return the certificate. I should have thought that a man acting bona fide in such a matter would have reacted differently.

Again, I have had to ask myself if such a man would have gone to the extent of trying to suborn a witness in support of his story in exh. ‘Q’. I cannot find myself believing that these facts show any bona fides and, in fact, I think they point conclusively to guilty knowledge in the first accused arising from the fact-shat he knew the 2nd accused was not the person he held himself out to be and that the purported sale of the property was not genuine. The 1st accused lied on every material point on which he felt the evidence against him might not point on I do not think he was a satisfactory witness”. He thereupon convicted the appellant of both conspiracy and stealing.

The only ground of appeal argued before us reads:- “The learned trial judge misdirected himself in law and on the facts when be relied on section 148 (a) of the Evidence Act to convict the appellant of stealing even though the appellant gave an account as to how he came by the document m question”.

Before considering the points canvassed by Mr. Cole who appeared for the appellant, we would like to refer to section 148(a) of the Evidence Act which reads:- “The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case, and in particular the court may presume:- (a) that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account or his possession”. For the appellant it was contended that not only did the prosecution fail to establish that the land certificate (exh. ‘A’) had been stolen, but that they had also failed to prove such recent possession as could raise the presumption that the appellant was ether the thief or had received it knowing it to have been stolen.

PAGE| 6 With regard to the theft of the certificate, we are of the view, bearing in mind the testimony relating to its disappearance from the Lands Registry which the learned trial judge accepted and the appellant’s explanation as to how be came into possession of it which the court categorically rejected, that the circumstances surrounding the disappearance on or about 7th May, 1968, and its appearance on 12th June, 1968, in the hands of the appellant left no room for any conclusion other than that it had been stolen from the Lands Registry on or about the 7th May, 1968.

As for the contention that the possession of the certificate was not recent enough, it seems to us, and we are in agreement with the learned Director of Public Prosecutions in this respect, that in considering the question whether or not possession is “recent” regard is to be taken of the nature of the property stolen as well as the course of human conduct in its relation to the facts of the particular case.  In the instant case, not only was the appellant found with the stolen certificate just over a month after it had been stolen, there is also finding of the learned trial judge:- (a) that the appellant did not appear to be unduly worried when he was informed by Abudu that the certificate was not genuine; and (b) that when the appellant found that the lie he had told in his statement (exh. ‘Q’) that it was Akinola (p.w. 12) who introduced John Isibor (who gave him certificate) to him (i. e. the appellant) was about to be discovered, he tried, albeit unsuccessfully, to get Akinola to support this lie.

If this finding is considered along with the fact:- (a) that the land certificate, being a particular document, is not the type of property which because of its contents can be passed from hand to hand very soon after it had been stolen, (b) that the man John Isibor or John Obote was never produced by the appellant, and (c) that the 2nd accused admitted how he was asked by the appellant to pose as the owner of the property covered by the certificate.

There can be no doubt that the learned trial judge was right in invoking the provisions of section 148(a) of the Evidence Act and in presuming that the appellant, by virtue of being found in possession of it within a month of the theft, was the person who stole the certificate (exh. ‘A’). Having failed to secure the court’s acceptance of the explanation which he gave as to how he came to be in possession of the certificate, we do not see how the appellant could have escaped the conviction which followed.

The appeal fails and it is accordingly dismissed.


Other Citation: (1969) LCN/1662(SC)

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