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OGUNLANA VS STATE

SUPREME COURT OF NIGERIA

MUHAMMADU LAWAL UWAIS, J.S.C. (Presided)

ABUBAKAR BASHIR WALI, J.S.C.

IDRIS LEGBO KUTIGI, J.S.C.

MICHAEL EKUNDAYO OGUNDARE, J.S.C.

ANTHONY IKECHUKWU IGUH, J.S.C. (Read the Leading Judgment)

TUESDAY, 16TH MAY, 1995

SC. 30/1992.

[1995] 5 NWLR (PT. 395) 266.  

APPEAL – Concurrent findings of two lower courts -Attitude of
Supreme Court thereto

COURT – Concurrent findings of two lower courts – Attitude of
Supreme Court thereto.

CRIMINAL LAW AND PROCEDURE – “Property” under Part 30,
Criminal Procedure Law of Lagos State – Meaning and Scope of.

CRIMINAL LAW AND PROCEDURE – Accomplices – Meaning and Scope of –
Relevant considerations.

CRIMINAL LAW AND PROCEDURE – Contradiction in prosecution’s case –
When material – When not material – Effect.

CRIMINAL LAW AND PROCEDURE- Order of restitution or forfeiture in
criminal matter-Power of court to make-Extent of-When exercised-Sections 263
and 263(A) Criminal Procedure Law of Lagos State considered.

CRIMINAL LAW AND PROCEDURE-Restitution or forfeiture order in
criminal matters – Claim for – Onus of proof – On whom lies – How discharged

CRIMINAL LAW AND PROCEDURE – “Tainted witness” -Meaning
and scope of.

CRIMINAL LAW AND PROCEDURE – Witnesses – Accomplices or tainted
witnesses – When witnesses may or may not be regarded as such – Whether failure
of witness to report a crime to police makes him an accomplice or tainted
wanes.

CRIMINAL LAW AND PROCEDURE – Witnesses – Witnesses who have a
grouse against accused – Evidence of- Reliability of

EVIDENCE – Concurrent findings of two lower courts -Attitude of
Supreme Court thereto.

EVIDENCE – Proof- Onus of proof- Restitution or forfeiture order –
Claim for – Onus of proof thereof- On Whom lies – How discharged.

EVIDENCE-Witnesses-Accomplices or tainted witnesses – When
witnesses may or may not be regarded as such-Whether failure of witness to
report a crime to police makes him an accomplice or tainted witness.

EVIDENCE-Witnesses- Witnesses who have a grouse against
accused-Evidence of- Reliability of.

JUDGMENT AND ORDER – Order of restitution or forfeiture in
criminal matters – Power of court to make – Extent of- When exercised –
Sections 263 and 263(A) of the Criminal Procedure Law of Lagos State
considered.

WORDS AND PHRASES – “Accomplices” – Meaning of.

WORDS AND PHRASES- “Property” under Part 30, Criminal
Procedure Law of Lagos State – Meaning of – Scope of.

WORDS AND PHRASES – “Tainted witness” – Meaning of.

Counsel:

Kehinde Sofola, SAN (with him, A. Idris, Esq. and H.S. Umar (Miss)
-for the 1st and 4th Appellants

Chief B. O. Benson, SAN (with him, B. Jagun, Esq.) – for the 2nd
and 3rd appellants

B. B. Ayodele (Mrs.) Chief Legal Officer, Ministry of Justice,
Lagos State – for the Respondent

IGUH, J.S.C. (Delivering the Leading Judgment): The appellants,
Adetokunbo Ogunlana, Segun Adebayo Onile, Kayode Bakare and Caroline M.
Ogunlana along with four others were arraigned on the 12th day of January, 1987
before the High Court of Lagos State, holder at Ikeja on a two count
information. They were charged m count one with conspiracy to commit felony, to
wit, stealing contrary to section 516 of the Criminal Code, Cap. 31, Laws of
Lagos State of Nigeria, 1973 and in count two with stealing 649,000 Champion
Sparkling Plugs Model N. 97, valued at N1,998,920.00 property of Alhaji Yinusa
Saliu Layeni contrary to section 390(9) of the Criminal Code. Each of them
pleaded not guilty to both counts and was released on bail.

The prosecution tilled twelve witnesses at the trial.  In the
course of the trial, the 5th accused person, Samuel Olaiya Awolaja jumped bail.
Thecae against him was consequently withdrawn and he was discharged but not w
the merits.

The remaining seven accused persons testified on their own behalf
and called witnesses. The learned trial Judge also visited the locus in quo
which was numbers 140 and 142 Ojuelegba Road Surulere.

The substance of the case as presented by the prosecution is that
m the 26th March, 1986, the complainant, one Alhaji Layeni who is P.W.1 in this
together with his storekeeper, P.W. 2 went to his warehouse at No. 142
Ojuelegba Road, Surulere where he had stored three container loads of Champion
Sparkling Plugs. On getting to We warehouse, they discovered to their amazement
that a large quantity of the said Sparkling Plugs valued N1,998,920.00 property
of P.W.1, had been stolen by unknown persons.

On close inspection, they noticed that there was an opening of the
ceiling which extended to the roof of the warehouse. This prompted them with
some sympathisers to visit the adjacent building, known as No. 140 Ojuelegba
Road, Surulere which was the residence of the 1st, 3rd, 7th and 8th accused
persons.

At the latter premises, they saw a ladder Exhibit H placed on the
wall there and noticed that those who gained entrance into the warehouse had
done so by removing some of the roofing materials at 142 Ojuelegba road,
Surulere. Exhibits J and J1, some Champion Sparkling Piuga parkings, were also
found in the compound at No. 140 Ojuelegba road, Surulere. As a result of this
discovery a report was made to the Police who after their investigations arrested
all tire accused persons and arraigned them before the court as aforesaid.

I think it ought to be noted that both P. W. 3 and P.W. 4, Theresa
Onafuwa and Remi Onwufuju respectively were at all material times at one time
or the other girl friends of the 1st accused person. They had cohabited
severally with him as husband and wife at the said 140 Ojuelegba road, Surulere
at various times material to the commission of tire offences charged. P.W. 3
testified that she ended the relationship between the 1st accused and herself
when she discovered that the 1st accused with the other accused persons were
stealing the champion sparkling plugs of P.W.1 from the warehouse. She gave
details of the roles the other accused persons played along with the 1st
accused in stealing the plugs of P.W. 1. Her relationship with the 1st accused
ended late in November, 1985 when she saw him stealing the plugs with the other
accused persons and advised him to desist from doing so.

Following this advice, the 1st accused grew annoyed and threw her
out of the house.

P.W. 4 also gave evidence which in many ways incriminated the
accused persons with the commission of the offences charged.

All the accused persons testified in their own defence and called
seven other witnesses. Theirs was a total denial of the charge.

The learned trial judge, Oshodi, J., after an exhaustive review of
the evidence on the 4th August, 1989 found each and every one of the seven
accused persons guilty of the offences charged. The 1st, 2nd, 3rd, 4th and 6th
accused persons were sentenced to 7 years imprisonment err each cant and the
7th and 8th accused persons were sentenced to 5 years imprisonment do each
count with hard labour, sentences m run concurrently. The court further made
forfeiture and/or restitution orders in respect of some of the properties of
the accused persons:

Dissatisfied with this judgment of the trial court, the accused
persons appealed to the Court of Appeal, Lagos Division against the said
convictions and sentences. On the 18th December, 1991, tire Court of Appeal
aft-firmed the convictions and sentences of the 1st, 2nd, 3rd, 4th, 6th and 7th
accused persons whilst the appeal of the 8th accused person was allowed and his
convictions and sentences were set aside. The court also set aside all the
orders of the vial court in respect of the forfeiture of the properties. It is
against this judgment of the court below that the 1st, 2nd 6th and 7th accused
persons, hereinafter referred to as the 1st, 2nd, 3rd and 4th appellants
respectively, have now appealed to this court.

Both the appellants and the respondent filed and exchanged there
respective written briefs of argument in the 1st and 4th appellants’ brief, the
under mentioned issues were formulated for resolution namely:-

1.       Whether on the facts of
this case, the court below is not in error when it upheld the decision of the
trial court that P.W. 3 and P.W. 4 were not accomplices in the offence charged
or at least ramrod witnesses and whether the failure of the trial Judge so to
hold and to remind himself of the need for caution in regard to their evidence
did not occasion a miscarriage of justice:

2. Whether the court below was right to have upheld the conviction
of the 1st and 4th appellants bearing in mind the evidence led before the trial
court.

The 2nd and 3rd appellants, on the other hand, identified three
issues in their written brief of argument for the determination of this court.
These are as follows: 1.       Whether the
learned trial Judge was right in convicting the 3rd appellant for the count of
conspiracy and was the Court of Appeal right in not setting aside the
conviction of the 3rd appellant based solely on the evidence of P. W.3 that 3rd
appellant instigated the 1st appellant to start stealing the sparkling plug and
that it was the 3rd appellant who knew when the 3 container loads of sparkling
plugs were brought in and the fact that the 3rd appellant once lived at 142
Ojuelegba road which said evidence of P.W. 3 was not admissible in law becuse
same infringed section 76 of the Evidence Act.

2.       On a proper evaluation of
the evidence of P.W.1, P.W. 3 and P.W. 4 and that of 3rd appellant (not
necessarily on basis of demeanour but based upon what the learned trial Judge
believed on record), was reasonable doubt not created in favour of the 3rd
appellant in respect of the 2nd count of stealing and are the findings of the
learned trial Judge not perverse and have they not occasioned miscarriage of
justice to the 3rd appellant.

3.       In the absence of any other
direct evidence linking the 2nd and 3rd appellants with the commission of the
alleged offences whether the evidence of P.W. 3 and P.W. 4 are reliable enough
to ground the convictions of the 2nd and 3rd appellants or whether the evidence
is full of contradictions and inconsistencies material plough to create
reasonable doubt in favour of the 2nd and 3rd appellants.

The respondent, for its own part, identified three issues in its
brief in respect of the 1st and 4th appellants appeal for determination. These
are couched as follows:

3.1. Whether P.W.3 and P.W.4 were accomplices or tainted
witnesses.

3.2.    Whether the conviction of the appellants
was based on suspicion.

3.3.    Whether as husband and wife, the charge of
conspiracy is maintainable against the 4th appellant and her husband who was
the 8th accused person at the trial.

The respondent in its brief in respect of the 2nd and 3rd
appellants also identified the under-mentioned two issues for the determination
of this court. These are as follows:

(1)      Whether the charges against the
2nd and 3rd appellants were proved beyond reasonable doubt.

(2)      Whether there were material
contradictions in the prosecution’s case.

A close study of We issues raised in the respondent’s briefs of
argument discloses that they are sufficiently encompassed by those identified
by the appellants in their respective briefs in the main appeals. Accordingly,
I shall in this judgment cont-me myself to the issues raised in the appellants’
two sets of briefs of argument.

The respondent did also cross-appeal to this court against We
forfeiture orders which were set aside by the court below.

In its brief in respect of this cross-appeal, the under-mentioned
issue was identified for determination, namely:

1.       Whether the Court of Appeal
was right in vacating the orders of restitution made by the High Court.

‘The 1st and 4th appellants in their reply to We respondent’s
amended brief in respect of the Cross-Appeal identified a similar issue for
resolution in the following terms:

Whether We Court of Appeal was right in vacating the orders made
by the learned trial Judge in respect of properties and monies belonging to the
appellants. Learned counsel for the 2nd and 3rd appellants in his reply brief
indicated that the respondent’s cross-appeal did not touch the appeal of his
clients in the cause. Accordingly, learned counsel filed respondent’s brief to
the cross-appeal as amicus curiae wherein he adopted the lone issue formulated
by the cross-appellant.

At the hearing of the appeal before us on the 16th February, 1995
learned counsel for the appellants and the respondent adopted their respective
briefs and made oral submissions in amplification thereof.

Learned Senior Advocate of Nigeria, Kehinde Sofola, Esq. in his
arguments on behalf of the 1st and 4th appellants in respect of the fast issue
contended War Weir conviction was based principally on We testimony of P.W. 3
and P.W. 4 who were We prosecution’s star witnesses in We case. He submitted
that these two witnesses were “tainted witnesses if not totally
accomplices’ He argued that both witnesses along with the 1st appellant were
participes criminis and were therefore caught by Section 7 of We Criminal Code,
Cap. 31, Laws of Lagos State 1973 as they gave succor and encouragement to the
1st appellant and facilitated the commission of the offences. He therefore
submitted that their testimony should not have been acted upon without caution
a corroboration. He cited in support, We decisions of Odofin Bello v. R. (1967)
NMLR 1; R v. Omisade & Ors (1964) NMLR 67 and R. v. Prater (1960) 4 Cr.
App. R. 83. He defined a “tainted witness” as a witness who may not
in strict sense, be an accomplice but a person who in giving evidence may have
some purpose of his own to serve and in respect of whom We warning as to
corroboration must be given. He stressed that P.W. 3 saw We appellants on
several occasions break into the warehouse and that her entire evidence showed
her as a full participant in the organisation of the gang that broke into No.
142, Ojuelegba road as alleged. F[e claimed too That P. W. 4 admitted not only
that she gave succour to We gang who committed the burglary until We 1st
appellant was arrested but that on a number of occasions she went with the 1st
appellant to Ikeja to collect sane of the proceeds of the sale of the stolen
property. He submitted that the trial court having neglected to warn itself of
the danger of acting on the evidence of P. W. 3 and P.W.4 in convicting the 1st
and 4th appellants, the court below was in error to have failed to set aside We
judgment of the trial court.

On the second issue, learned Senior Advocate conceded that
although We warehouse at No.142 Ojuelegba road might have been burgled sometime
between 1985 and 1986, he contended that the quality of evidence before the
trial court was not such as would have warranted the conviction of the 1st and
4th appellants. He therefore submitted that the court below was in error not to
have set aside the convictions of the 1st and 4th appellants. He referred to
the evidence of P.W. 3 in particular and described it as unreliable. He pointed
out that there was discrepancy in her evidence as at one time, she said she was
driven out by the 1st appellant and at another time she said she left the 1st
appellant after she advised him to stop stealing the plugs. He urged the court
to allow the appeal of the 1st and 4th appellants.

Learned Senior Advocate of Nigeria, Chief B.O. Benson in his
submissions on behalf of the 2nd and 3rd appellants argued that there was no
reason why the evidence of the 3n1 appellant should be treated as unreliable.
He described the testimony of P. W.3 as fabricated and therefore incapable of
grounding a conviction of the 3rd appellant for conspiracy. He attacked her
testimony with considerable force and he invited this court to hold that the
evidence of P.W. 3 on which the trial Judge based the conviction of the 3rd
appellant for conspiracy was wrongfully admitted and infringed section 76 of
the Evidence Act He submitted that the evidence of P.W. 3 and P.W. 4,
particularly with regard to the fast count of conspiracy, as against the 2nd
and 3rd appellants was not to their personal knowledge.

On the 2nd issue which questions whether Oli a proper evaluation
of the evidence of P.W.1, P. W. 3 and P.W.4, reasonable douM was not created in
favour of the 3rd appellant in respect of the stealing charge, Chief Benson
submitted that P.W. 3 had no personal knowledge of the facts she testiFed upon.
He stressed that t!m defence of the 3rd appellant that he was in Port Hareourt
from December 1985 amounted to a plea of alibi which plea was never dislalged.
He argued, citing the case of Onajowokan v. The State (1987) 3 NWLR (Pt 61) 538
that the onus was on the lrcosecutlon to disprove such a plea. He cited the
case of Bakare v. State (1987) 1 NWLR (Pt. 52) 579 at 594 and submitted that
the 3rd appellant had showed special circumstances for the setting aside by
this court of the concurrent findings of facts of We two courts below against
him.

On the 3rd issue, learned counsel submitted that the evidence of
P.W. 3 and P. W. 4 created some doubt which ought to have been resolved in
favour of the 2nd and 3rd appellants. He urged the court to allow the appeal of
the 2nd and 3rc1 appellants.

Learned counsel for the respondent, B.B. Ayodele (Mrs), Chief
Legal Officer, Ministry of Justice, Lagos State in her reply submitted that
P.W. 3 and
P.W.4arenotaccomplicesastheyarenotparticipescriministotheoffencescharged as
provided in section 7 of the Crhninal Code. She cited in support the cases of
Omisade v. The Queen (1964) NMLR 67;(1964) 1 All NLR 233; Njovens v. The State
(1973) 5-7 S.C.17 and’Enahoro v. The Queen (1965)1 All NLR 125; (1965) 5 S.C.
119; (1965) NMLR 265. She contended that those witnesses are not
“tainted” witnesses either. She conceded that P.W. 3 and P.W. 4,
lived at various material times between 1983 and 1985 with the 1st appellant
and that neither of them reported the burglaries to the police. She however
argued that this did not make them accomplices or tainted witnesses. They were
merely eye witnesses to court so to hold and to remind itself of the need for
caution in regard to their evidence did na occasion a miscarriage of justice.
It was the complaint of the 1st and 4th appellants that the evidence of P.W, 3
and P.W. 4 is that of accomplices or tainted witnesses and that the trial court
did not advert its mind to this fact.

I think it should be mentioned at this stage that it is not in
dispute that P.W. 3 and P.W. 4 were the star witnesses of the prosecution at
the trial. This fact is common ground in this appeal. It is also clear that
their testimony along with those of the other prosecution witnesses
incriminated the 1st and 4th appellants in no small measure with regard to the
two counts for which the two appellants were tried and convicted. The learned
trial Judge believed the said evidence of the two star witnesses and proceeded
to convict the appellants as charged. The question for determination is
whether, as contended by Mr. Sofola, SAN, the evidence of the said P.W. 3 and
P.W. 4 was that of accomplices or tainted witnesses.

It seems to me settled that persons are accomplices to a crime who
are participes criminis in respect of the actual crime charged whether as
principals or accessories before saner the fact, See Omisade & Orsv. The
Queen (1964) NMLR67; Njovens v. The Stare (1973) 5-7 S.C. 17; Jimoh Ishola v.
The State (1978) 9-10 S.C. 81; (1978) 2 LRN 125; (1978) NSCC (Vol. 2) 499 and
William Idahosa v. R. (1965) NMLR 85. On the other hand, it has been said that
the term “tainted witness” should be confined to one who is either an
accomplice or who by the evidence he gives whether as a witness for the
prosecution or defence, may be regarded as having some purpose of his own to
serve. See Idahosa v. The State (1965) NMLR 85 and Jimoh Ishola v. The State,
supra at P. 509. I am prepared to accept that a tainted witness may be defined
as a witness who may not in strict sense, be an accomplice, but who on giving
his evidence is established to have some purpose of his own to serve and in
respect of whom it is desirable that the warning as to the corroboration of his
evidence may appropriately be given.

It seems to me important, however to recall the admonition of
Idigbe, J.S.C. in Garuba Mailayi & Anor v. The State (1968)1 All NLR 116 at
123 with regard to this class of witnesses described as “tainted.” Said
he:

“Recently, there has been a tendency among criminal lawyers
to create a category of “tainted” witnesses. Web however observe that
the expression “tainted” is very loose and if its application is not
kept within proper bounds, a great deal of confusion will be unleashed in an
area of evidence which even now is fraught with difficulties.”

I must, with respect, endorse the above observation of Idigbe,
J.S.C. as sound and worthy of note. The application of this loose class of
witnesses described as “tainted” must therefore be kept within proper
bounds to avoid unnecessary confusion that may becloud this area of our law of
Evidence. Having examined the questions of accomplices and “tainted”
witnesses, I will now return to the first issue for determination in the
appeal.

It must be conceded that P. W. 2 and P.W. 4 lived at various
material times with the 1st appellant. It is also common ground that neither of
them reported the burglary and theft to the police. But a person does not
become an accomplice to a particular crime by merely co-habiting without more
with one who is established to be concerned with the commission of a crime
unless the former is aware of the criminal conduct of the latter and aids and
abets of assists him in the commission of the offence or counsels or procures
the latter to commit the offence or knowingly gives succour or encoumgement to
the criminal or facilitates the commission of the offence. See for example
Wilcox v. Jeffrey (1951) 1 All FR 464 and R. v. Ezekpe & Anor (1962) 2
SCNLR 393;(1962)1 All NLR 637. In other words, one becomes an accomplice to a
crime if be is participes criminis whether as prinripal or accessory before or
after the fact with regard to the offence charged.

The mere presence of a person at the commission of a crime does not
ipso facto make one an accomplice to such a crime. See R v. Ukpe (1938) 4 WACA
141. A person must be purposely facilitating or aiding the commission of a
crime by his presence before he can be regarded as an accomplice. So too, the
mere failure of a witness to report the commission of a crime will not ipso
facto make the witness w the commission an accomplice. See Jmoke Onyikoro v. R.
(1959) NRNLR 103 and Yaw Azuma v. R. (1950)13 W ACA 87. The fact that one did
not report a crime to the police until they interviewed him does not indicate
complicity as it is common knowledge that in this country, witnesses often
refrain from coming forward in case they might get into some sort of trouble.

Similarly the mere failure of a witness to report to the police a
person who designs W commit an offence or whom he has seen committing an
offence does not ipso facto make him unworthy of credit should he testify on
behalf of the prosecution in such a vial. See Jimoh Ishola v. The State, supra
at P. 508. Accordingly, the mere failure of P.W. 3 and P.W. 4 to report the
appellants to the police did not ipso facto in make them accomplices to the
offences charged. Nor did the fact that they were present and saw the
appellants at various times engage in the burglary and theft of the sparkling
plugs without more make them accomplices to the crime or “tainted.”
witnesses.

The point must be stressed that there is no evidence whatsoever in
the present case that P. W. 3 or P.W. 4 are participes criminis to the offences
charged. It is not alleged that they participated in the conspiracy of the
theft. There is also no evidence that they received the stolen goods or the
proceeds thereof knowing the same to have been stolen. Indeed they were not
cross-examined on those tines. Additionally there is nothing from the tenor of
the evidence of P.W. 3 and P.W. 4 to suggest in whatever manner, any purpose of
their own to be served by their evidence.

No doubt, it could be suggested that P.W. 3 and P. W. 4 being
ex-girl friends of the 1st appellant must have had a grouse against him. That
suggestion on its own however cannot perse destroy their credibility. This is
because where the evidence led is reliable and true in fact, as was found in
the present case by the trial court with regard to the evidence of P. W. 3 and
P. W. 4, the fact that the witness has a grouse against the accused will not
weaken the validity or credibility of his evidence. So long as such evidence
has been carefully considered by the trial court and is found to be direct, unassailable
and we, the mere fact that the witness is the accused’s mortal enemy will not
render his evidence unreliable. See Stephen Oteki v. AG. Bendel State (1986) 2
NWLR (Pt. ?rl) 648; (1986) 4 S.C. 222 at P. 225.

In the present case, there is nothing on record from which P.W. 3
and P.W. 4 may be described as accomplices, tainted or begrudged witnesses.
Both witnesses testified before the court and effectively incriminated the
appellants by direct evidence with the offences charged. The evidence of P. W.
1, P. W. 2, P.W. 10 and P.W.11 which were also direct, corroborated the
evidence of P.W. 3 and P.W. 4 in various particulars on the issue of how the
appellant carried out their stealing expedition of the sparkling plugs. The
court was satisfied with and accepted the evidence of the said P.W. 3 and
P.W.4. Indeed it is in evidence that when P.W. 3 became aware of the criminal
conduct of the appellants, she advised the 1st appellant to desist from his
conduct but the latter grew annoyed with her as a result of which she left him.
That is certainly not the behavior of an accomplice or a tainted witness.

P.W. 4, for her own part neither joined the appellants in their
criminal activities nor did she received the stoles goads or the proceeds
thereof. She did nothing to facilitate or encourage the commission of the
offences charged. In my vow she, too can neither be described as an accomplice
nor a tainted witness. I therefore agree with the findings of the dial court as
affirmed by the Court of Appeal that P.W. 3 and P.W. 4 are neither accomplices
nor “tainted” witnesses. I mast, with respect, reject the submissions
of learned senior advocate to the contrary as misconceived and unmeritorious in
the circumstance, the fast issue must be resolved against the 1st and 4th
appellants.

The second issue postulated by the learned Senior Advocate for the
1st and 4th appellants is whether the court below was right to have upheld the
conviction of the 1st and 4th appellants bearing in mind the evidence led
before the trial court. The contention of learned counsel is that the quality
of evidence led in the case by the prosecution was insufficient in law to
warrant a conviction of the appellants. He argued that had the Teamed trial
Judge directed himself that P.W. 3 and P.W. 4 were accomplices or, at least,
tainted witnesses, he might have given the benefit of doubt to We 1st and 4t6
appellants. He added in any case that neither the two witnesses nor the others
alleged that the 1st and 4th appellants were members of the gang that committed
the crime.

I have already held that P.W. 3 and P.W. 4 may under no stretch of
the imagination be regarded as accomplices or “tainted” witnesses. It
mtut also be emphasized that both P.W. 3 and P.W.4 gave direct oral evidence of
what they saw and witnessed. P.W. 3 gave clear evidence connecting the 1st
appellant with the offences charged. P.W.4 in We like matter also incriminated
the 4th appellant with the offences charged. The learned trial Judge upon an
exhaustive consideration of all the evidence led before the court held that the
prosecution had established its case against the 1st and 4th appellants beyond
all reasonable doubt. On the issue of conspiracy, be observed, having watched
all the witnesses testify, that the matter was a clear case of conspiracy with
the 1st and 3rd appellants as the hub around whom the other appellants
revolved. On the second count of stealing, the trial court held that this was
also proved beyond all reasonable doubt against the 1st and 4th appellants. Of
the 4th appellant, in particular, it stated that she was “a party to the
crime of the theft of the champion sparkling plugs stolen from the warehouse at
142 Ojuelegba road and accordingly she is found guilty of the offence as
charged.” There is evidence in support of Were findings which were
affirmed by the court below. Said the court below per Sulu-Gambari, J.C.A.:

“I have examined the evidence given by the P. W. 3 and P.W. 4
and having considered their positions, I come to the conclusion that they were
not accomplices nut tainted witnesses. I am unable to agree that the totality
of the evidence given against the appellants were mere suspicion upon which no
conviction can be grounded.

Even if they are either accomplices or tainted witnesses, there is
enough evidence to support the testimonies of the 3rd and 4th prosecution
witnesses m warrant the conviction of the 1st, 2nd, 3rd, 4th, 6th and 7th
appellants.

I therefore come to the conclusion that this court does not see
any justification for interfering with the judgment of the learned trial Judge
in respect of the evidence he considered or evidence to be considered in the
entire case for arriving at the conclusion that the 1st, 2nd, 3rd, 4th, 6th and
7th appellants was guilty of the offences charged .,

I myself have closely considered the entire evidence given before
the court by P.W. 3 and P.W. 4 and find no reason to interfere with the
findings of the vial court thereupon.

It is trite that this court will not normally interfere with the
concurrent findings of the two lower courts unless there is some miscarriage of
justice or a violation of some prindples of law or procedure. See Ugwumba v.
The State (1993) 5 NWLI2 (PC 296) 660 at 671; Osayerrte u The State (1966) NMLR
388; Sanyaalu v. The State (1976) 6 S.C. 37 and Wankey v. The State (1993) 5
NWLIt tPt. 295) 542 at 552. No miscarriage of justice or violation of any
principle of law or procedure has been established by the appellants in this
terse and I entertain no doubt that the court below was right to have upheld
the convictions of the 1st and 4th appellants. Accordingly, the second issue
must again be resolved against the appellants.

Turning now to the appeal filed by the 2nd and 3rd appellants, the
first issue raised by the learned counsel complained against the wrongful
admission of the hearsay evidence of P.W. 3 by the trial court and convicting
the 2nd and 3rd appellants on such inadmissible evidence. The second issue
questioned whether on a props evaluation of the evidence of P.W. 1, P.W. 3 and
P.W. 4, reasonable doubt was not created in favour of We 3rd appellant in
respect of the 2nd count of stealing. I will consider these issues together.

With profound respect to Chief Benson, SAN., it must be emphasized
that the evidence of P.W. 3 against the 2nd and 3rd appellants was neither
hearsay nor inadmissible. Her evidence was direct oral evidence of what she saw
and witnessed and the conviction flowing from this evidence which was accepted
by the trial court as true cannot be described, no matter how remotely, as
based on hearsay or speculation.

According to P.W, 3, it was in November 1985 that she saw the 1st
appellant ‘r stealing the sparkling plugs with “his friends.” She
identified the 2nd and 3rd appellants with others as the “friends’ of the
1st appellant, all of whom were stealing the plugs. The 1st appellant grew
annoyed and threw her out of his house because she advised him to desist from
stealing the complainant’s plugs.

The trial taut found that P. W. 3 and P.W.4 were both witnesses of
truth and thatthe2ttdand3MappellantsweremembersofthegangthatstoleWecomphtinant’s
champion sparkling plugs from No. 142 Ojuelegba road. Said the learned trial
Judge of the 2nd appellant:

“I do not believe the evidence of the 2nd accused. I accept
the evidence of the prosecution witnesses that the 2nd accused is a member of
the gang that stole the champion sparkling plugs and that he spent the proceeds
from the stolen goods to purchase the car”

Of the 3rd appellant, he said:

“The 6th accused as I have earlier said is the hub of the
syndicate and he must have used the proceeds of the sale of the stolen goods to
pay his rent, furnish his apartment and traveled to Port Harcourt. He is a
member of the gang that stole the champion sparkling plugs from the warehouse
at 142 Ojuelegba road and accordingly he is guilty of the offence.”

Earlier on in his judgment, the trial court had on the evidence
before it found the count of conspiracy established against the 2nd and 3N
appellants. These findings were carefully considered by the court below and
duly affirmed. It is not established that these findings are perverse or have
occasioned a miscarriage of justice W the 2nd or the 3rd appellant. I will
accordingly resolve the first two issues raised by the 2nd and 3rd appellants
in favour of the respondent.

The last issue raised by the 2nd and 3rd appellants is whether in
the absence of any other evidence incriminating the 2nd and 3rd appellants, the
evidence of P.W. 3 and P.W. 4 is reliable enough to ground their conviction and
whether the evidence contains contradictions material enough to create
reasonable doubt to favour of the 2nd and 3rd appellants. This issue is closely
related with the first issue reined on behalf of the 1st and 4th appellants in
respect of which I have already considered in extenso. It suffices for me to
state that the evidence of P. W. 3 and P.W. 4 which the trial court believed
together with the evidence of Ute other prosecution witnesses are more than
sufficient to sustain the conviction of the 2nd and 3rd appellants.

On the alleged contradictions in the evidence of the prosecution,
I must state that a close study of the record of appeal does not bear this out.
At all events, for any conflict or contradiction in the evidence of the
prosecution witnesses to be fatal to the prosecution’s case, the conflict. or
contradiction must be substantial and fundamental to the main issues is
question before the court. Sce Nasamu v. The State (1979) 6-9 S.C.153; Enahoro
v. The Queen (1965)1 All NLR 125; Ibe v. The State (1992) 5 NWLR (Pt 244) 642
at 649; Azu v. The State (1993) 6 NWLR (Pt. 299) 303 at 316 and Kalu v. The
State (1988) 4 NWLR (Pt. 90) 503. No such substantial and fundamental conflict
or contradiction has been established in the present appeal. I must in the circumstance
answer the first arm of this last issue in the affirmative and the second arm
(hereof in the negative.

Turning now to the cross-appeal, the solitary question posed is
whether the Court of Appeal was right in vacating the orders of restitution made
by the trial court in respect of the monies and properties belonging to the
appellants. These orders ace in the following terms:

(i)                                        
I hereby direct that the Manager, Frst Bank, Adeniran Ogunsanya
Street, Surulere should freeze the Savings Account No. 3210 and the Short Ftxed
Deposit Account in the name of the 3rd accused person, Effiong Okmilron and
make same payable to the Deputy Chief Registrar of this Court who is directed
to open a Saving Account in the money so realised and later made payable to the
complainant Alhaji Y. S. Layeni after the penal of appeal has lapsed or made
payable to the 3rd accused if he succeeds on appeal.

(ii)      I also direct
that the Manager, National Bank of Nigeria Ltd., Balogun Sweet Branch, Lagos
should freeze the sum of money as shown in Exhibit PP in the name of Chief
Registrar of the Court who should open the Savings Account for the amount.

(iii)     The Exhibit Keeper is hereby
directed to release Exhibits P to P69, S2, to S7, P70, Q2 and S7 to the Deputy
Sheriff because the goods are now lying waste for public auction and all money
realised should be paid to the DeputyChiefRegistrar who should keep same in a
savings account.

(iv)     The 8th accused is hereby directed to
submit all the papers and documents relating to the property being erected at
Ikenne Road Aiyepe, Ogun State as shown in Exhibit VI to the Deputy Chief
Registrar who should take care of the documents.

(v) It is ordered that the Deputy Chief Registrar should maintain
all the accounts stated above until after the period of appeal lapses or in the
event of appeal being lost pay the moneys to the complainant Alhaji Y.S. Layeni
and the house shown in Exhibit VI should also be forfeited m him. In the event
of the accused succeeding on appeal, the moneys should be returned to the 1st,
2nd and 4th accused persons respectively and the house to be returned to the
8th accused person ..

The first point that must be made is that order number (i)
concerns the 3rd accused who is not a party to this appeal. So, too, only
number (iv) concerns the 8th accused who was acquitted and discharged by the
court below and is therefore not a party to this appeal. Accordingly the
cross-appeal only concerns orders numbers (ii), (iii) and (v).

The court’s order number (ii) is in respect of the 1st appellant’s
Bank Account, Exhibit PP.

Order number (iii) involves Exhibits P to P69 which are various
properties recovered from the 1st appellant when P. W.1 I executed a search
warrant in respect of his premises at No. 8, Olufunmilola Okikiolu Street,
Ikeja. It also covers Exhibit P70 which is 1st appellant’s Jetty Saloon Car and
Exhibit Q2 which is the 2nd appellant’s BMW Saloon Car. Exhibit S2 to S7
included in order number (iii) pertain to the properties of the 4th accused who
is not concerned in this appeal. Accordingly, for the purpose of this appeal,
only Exhibits P-P69, P70 and Q2 are relevant in so far as the vial court’s
order number (iii) is concerned.

Order number (v) is in connection with the Bank Accounts mentioned
in order numbers (ii) and (iii) above in so far as they concern the appellants
or any of them.

I carried Senior Advocate, Mr. Sofola did submit That it would be
proper to suggest that the said orders were made under sections 269 and 270 of
the Criminal Procedure Law of Lagos S rate Cap.32. It seems to me clear, with
respect, that these sections of the Criminal Procedure Law cannot apply to cover
the forfeiture orders. Section 263 of the Criminal Procedure Law of Lagos State
confers the court with wide discretionary powers to deal with the issue of
orders for the disposal of property regarding which an offence appears to have
been committed or which has been used for the commission of any offence. In
particular section 263(A) of the same Law defines the term “property”
under Part 30 of that Law as follows:

“In This Part of this law the term “property”
includes, in the case of property regarding which an offence appears to have
been committed, not only such property as has been originally in the possession
or under the control of any party, but also any property into or for which the
same has been convened or exchanged and anything acquired by such conversion or
exchange, whether immediately or otherwise.”

The term “property” under part 30 of the Criminal
Procedure Law of Lagos State therefore includes, in the case of property
regarding which an offence appears to have been committed, not only the original
property in specie but also such other property into which the same has been
converted or exchanged and anything acquired by such conversion or exchange. In
my opinion, the forfeiture or restitution orders of the trial court in the
present case are amply covered by the combined effect of sections 263 and 263A
of the Criminal Procedure Law, Lagos State in view of the finding of the trial
court that the properties covered by the restitution orders were acquired with
the proceeds of sale of the complainant’s stolen champion sparkling plugs in
issue. The next question must be whether there was evidence in support of the
finding of the trial court that the relevant properties covered by the orders
were acquired with the proceeds of sale of the complainant’s stolen sparkling
plugs.

In this regard, the court below observed as follows:

“Learned Senior Advocate submitted and I agree that the
learned Senior State Counsel who applied for the restitution at the vial court
had not established that the complainant is entitled to the goals restored to
bin in the orders made by the learned trial Judge. The Teamed vial Judge cannot
assume, as he did, that the movies in the banks and the vehicles and other
properties were acquired with the proceeds of the sale of the stolen properties
belonging to the complainant”

With profound respect, I am unable to agree that the court below
was right in the above observation. This is because a close study of the regard
of proceedings does show that there was ample circumstantial evidence before
the trial court to the effect that all the appellants acquired their respective
properties in question within the period ojthe theft and with the proceeds of
sale of Une complainant’s stolen sparkling plugs. Said P.W. 3

“When I was with 1st accused, he was working with Government
Coastal Agency as a clerk. When l knew him, he had nothing but when they
discovered the plugs, they enriched themselves overnight. At the time I met the
1st accused in 1982, he hadno car. 1st accused bought a Jetta car light blue
registration number LA3642 SL but the colour is now changed
black…………………………….. 1st accused has a car, a Jetta LA 3642
SL which he bought in November, 1985.

A little later in her evidence, P.W. 3 continued as follows:

“6th accused has a cur – Honda Accord in 1986. 5th accused
also has a Jetta car LA 9555 LB which he bought between 1985-1986. 2nd accused
lots a BMW car which he bought only in 1986. 4th accused hjad a Honda Civic Car
red colour which he bought in 1986”

P.W. 4 in her own evidence testified as follows:

“During that period 1st accused was trying to set up a night
club at Ikeja at 8 Okikiolu Street Off Toyin Street. 1st accused told me that
every member of his family except his father knew that he was trying to set up
a night club at Ikeja.

Later that day when we got home at 140 Ojuelegba road, 1st accused
told me that he wanted to go and rent a flat at International Airport Road. I
later went with him around February 1986 to pay for the flat and he paid two
years rent in advance. It was that same day in February, 1986 that Samuel, the
5th accused bought a Jetta car………………………………… All of
them had cars except Tito and Scorpion, Samuel had 2 can, also Segun and
Sunday.”

It is important to observe that the 1st appellant admitted in his
examination in chief that he was only a clerk at the Government Coastal Agency
on a salary of N180.00 per month. Similarly, the 2nd appellant admitted that he
was on a salary of only N220.50 per month. It is also worthy of note that the
appellants by some strange coincidence acquired their respective properties in
issue contemporaneously with the burglary and stealing for which they were
tried and convicted. It was in the face of the above sudden metamorphosis of
the appellants from the humble rank of low working class, with some of them
jobless to nouveaux riches of posh saloon cars owning class
contemporaneously with the theft in question that the trial court, in the
absence of any reasonable explanation, came to the irresistible conclusion that
the appellants’ properties in issue were properties into which the
complainant’s plugs had been converted. I think that the learned trial Judge
was entitled to infer circumstantially that these properties were bought, all
about the same time as it were, with the proceeds of the crime. I agree
entirely with the Teamed counsel for the respondent that to insist, as the
Court of Appeal appeared to have done, on direct evidence of the fact of
acquisition of these properties with the proceeds of the theft will tantamount
to placing less premium on the practice of proof by circumstantial evidence.

It ought however to be noted that the onus of proving that the
property in respect of which a restitution or forfeiture order is to be made is
from the proceeds of an alleged theft is on the prosecution. But this onus, as
in civil cases, is discharged on the preponderance or balance of probabilities
and not beyond reasonable doubt as prescribed in criminal cases. See R. v.
Ferguson (1970) 2 All E.R. 820. Upon a careful consideration of all the
evidence adduced before the trial court, I cannot, with respect accept the view
of the court below that the prosecution did not establish that the complainant
is entitled to the properties restored to him by the orders of the trial court.
In the circumstance, the lone issue for determination in the cross-appeal must
be answered in the negative.

In the final result and for all the reasons I have given above,
the main appeals of the 1st and 4th and the 2nd and 3rd appellants fail and are
hereby dismissed. Their convictions and sentences on each of the two counts
charged as affirmed by the court below are hereby further affirmed. The
respondent’s cross appeal succeeds and it is hereby allowed. The orders of the
court below vacating those of the trial court enumerated as in (ii), (iii) and
(v) above in so far as they concern the appellants herein are hereby set aside.
The orders of the trial court as in (ii), (iii) and (v) above are hereby
restored. The 1st and the 4th appellant who are on bail pending the
determination of this appeal should now be taken into prison custody to serve
as from today the sentences passed on them by the trial wart as Follows, the
1st, 2nd and 3rd appellants, 7 years imprisonment in respect of each of the two
counts for which they were convicted and the 4th appellant, 5 years
imprisonment for each of the two counts for which she was charged and
convicted. All the sentences are to run concurrently.

UWAIS, J.S.C.: I have had the advantage of reading in draft the
judgment read by my learned brother Iguh, J.S.C. I quite agree that despite the
strained relationship between the 1st appellant and P. W. 3 and P. W.4
respectively, the latter, that is P.W. 3 and P.W. 4 could not be regarded as
either accomplices to the appellants or as tainted witnesses. It was not,
therefore, necessary for the vial court to look for corroboration as required
by section 178 subsection (1) of the Evidence Act, Chapter 112 of the Laws of
the Federation of Nigeria, 1990 which reads thus:
“178(1)     An accomplice shall be a competent witness
against an accused person, and conviction is not illegal merely because it
proceeds upon the uncorroborated testimony of an accomplice.

Provided that in cases tried with a jury when the only proof
against a person charged with a criminal offence is the evidence of an
accomplice, uncorroborated in any material particular implicating Ute accused,
the judge shall warn the jury that it is unsafe to convict any person upon such
evidence, though they have a legal right to do so and in all other cases the
court shall so direct itself. ”

If corroboration were even necessary, for the testimonies of P.W.
3 and P.W. 4 to be believed, that was amply provided by the finding of a ladder
and roofing materials from the warehouse, where the stealing took place, in the
compound of the 1st appellant and the sudden riches acquired by the appellants
soon after the stealing occurred.

With regard to We cross-appeal by the respondent, sections 263 and
263A of the Criminal Procedure Code, Chapter 32 of the Laws of Lagos State,
1973 provide, as relevant, as follows:

“263(1)        
During or at the conclusion of any trial or inquiry the court may make such
order as it thinks fit for the disposal whether by way of forfeiture,
confiscation or otherwise of any property produced before it regarding which
any offence appears to have been committed or which has been used far the
commission of any offence.

(2)

(3) The power conferred by subsections (1) and (2) upon the court
shall include the power to make an order for the forfeiture or confiscation or
for We destruction or for the delivery to any person of such property, but
shall be exercised subject to any special provisions regarding forfeiture,
confiscation, destruction, detention or delivery contained in the written law
under which the conviction was heard or in any other written law applicable to
the case.

(4)

263A   in this part of this law the term
“property” includes, in the case of property regarding which an
offence appears to have been committed, not only such property as has been
originally in the possession or under the control of any party, but also any
property into or for which the same has been convened or exchanged and anything
acquired by such conversion or exchange, whether immediately or otherwise.

‘there was evidence adduced before the teamed trial Judge, which
he believed, that the property stolen had been converted to money by sale.
there was also evidence, accepted by the trial court, that the 1st and 2nd
appellants who were employees on salaries of N100.00 and N220.50 per month
respectively suddenly became owners, with the commission of the crime, of
property far beyond their means, including cars. The learned trial Judge was,
therefore tight in exercising his discretion under sections 263 and 263A of the
Criminal Procedure Law, Chapter 32, murder the forfeiture of the property to
the owner of tire stolen goods – Alhaji Y.S. Layeni who was P.W. 1 before him.
In the light of the aforesaid, the Court of Appeal was, in my opinion, in error
m have set aside the order of forfeiture by holding as follows: “The
learned trial fudge cannot assume, as he did, that the counter in the banks and
the vehicles and other properties were acquired with the proceeds of the sale
of the stolen properties belonging m the complainant”

The evidence before the trial mart about the acquisition of wealth
by the appellants after committing the theft was both direct and
circumstantial. So that the learned trial judge had cogent evidence on which to
come to the conclusion, as he did, that the goods tendered in evidence and the
money in the account of the 1st appellant with the National Bank of Nigeria
Ltd., were acquired hum the proceeds of the sale of the goods stolen. He did
not “assume” but relied on the evidence, both real and
circumstantial, admitted by him.

For these and the more detailed reasons contained in the judgment
of my lamed brother Iguh, J.S.C., I too dismiss the appeals by the appellants
and allow the cross-appeal by the respondent. In the result I affirm the
convictions and sentences of the appellants by the High Court as upheld by the
Court of Appeal. I set aside the order of the Court of Appeal discharging the
order of forfeiture Nos. (ii), (iii) and (v) made by the High Court. The bail,
having been granted to the 1st and 4th appellants on the 30th day of September,
1993 pending the determination of their appeals, is hereby revoked and that
they should be taken into prison custody forthwith m serve as from today the
sentences passed on them by the learned trial Judge, Oshodi, J., m wit, the
1st, 2nd and 3rd appellants 7 years imprisonment in respect of each of the two
counts for which they were found guilty and the 4th appellant m 5 years
imprisonment in respect of each of the two counts with which she was charged.
All the sentences are to run concurrently.

WALI, J.S.C.: I have had the privilege of reading before now, the
lead judgment of my learned brother, Iguh, J.S.C. and with which I entirely
agree.

Both the trial court and We Court of Appeal are right in their
conclusions that P. W.3 and P. W.4 are neither accomplices nor tainted witnesses.
TIC fact that bolt. P.W. 3 and P.W. 4 were all-friends of the appellant,
particularly at the time he conspired with others (2nd, 6th and 7th appellants
inclusive) to commit the offences with which they were charged and convicted,
is no sufficient evidence to Libel P.W. 3 and P.W. 4 as accomplices or tainted
witnesses. There was no evidence w show that they participated in the
commission of the crime or encouraged the appellants in its commission. Nor was
there any evidence that they derived any benefit from its commission. P.W. 3
and P.W. 4 were merely eyewitnesses to the commission of the crime and failure
to make a report of the same to the police simpliciter, is not sufficient to
turn them into accomplices or tainted witnesses. See R. v. Essien Ukut (1960)
SCNLR 441; (1960) 5 FSC 1g3; Jnwke Onyikoro v. R. (1959) SCNLR 659; (1959) NR
NLR 103 and Yaw Azunrah v. R 13 WACA g7.

Even if, for the sake of argument, P.W. 3 and P.W. 4 are regarded
as accomplices or tainted witnesses, there is sufficient corroboration of their
evidence m the body of evidence adduced by the prosecution.

The concurrent findings of fact as regards the guilt of the
appellants in tills case, is firmly supported by the credible evidence accepted
by the trial court and affirmed by the court below.

As for the cross-appeal by the respondent, I entirely agree with
the conclusion of my learned brother, Iguh, J.S.C. that it has merit and must
therefore be allowed. For the cogent reasons given in the lead judgment, I
hereby also allow the cross appeal and subscribe to tire consequential orders
contained therein to wit:- the orders of the Court of Appeal Nos. (ii), (iii)
and (iv) including those of the Dial court orders Nos. (ii), (iii) and (v)
which are hereby restored.

KUTIGI, J.S.C.: I read before now the judgment just delivered by
my learned brother Iguh, J.S.C. The facts and the issues have been setout fully
in the judgment. I agree with his conclusion that the appellants were properly
convicted. I therefore dismiss the appeals and confirm their convictions.

As for the cross-appeal, there is no doubt that the Court of
Appeal erred in setting aside the forfeiture orders male by the learned trial
Judge in this case. The cross-appeal therefore succeeds.

I endorse all the consequential orders made in the said lead
judgment of my brother Iguh, J.S.C.

OGUNDARE, J.S.C.: I have had the advantage of a preview of the
judgment of my learned brother Iguh, J.S.C. just read. The issues raised in
these appeals have been adequately set out and considered by my teamed brother.
I agree entirely with his reasonings and conclusions which I hereby adopt as
mine.

The courts below came w the right conclusions on the convictions
of the appellants having regard to the welter of evidence led at the trial. In
my respectful view, P. W. 3 and P.W. 4 cannot, on the evidence, be described as
accomplices nor were they tainted witnesses as submitted by learned leading
counsel for the appellants.

On the cross-appeal, I think the court below erred in setting
aside the forfeiture orders made by the Teamed vial Judge.

In conclusion, I too dismiss the appeals of the appellants and
allow the respondent’s cross-appeal. I affirm the convictions and sentences
passed on the appellants and abide by the consequential orders trade by my
learned brother Iguh, J.S.C. on the cross-appeal.

Appeal dismissed Cross-appeal allowed