In The Supreme Court of Nigeria
On Friday , the 1st day of February 1980
Before Their Lordships
George Sodehinde Sowemimo-Justice, Supreme Court
Chukwunweike Idigbe-Justice, Supreme Court
Andrews Otutu Obaseki-Justice, Supreme Court
Augustine Nnamani-Justice, Supreme Court
Muhammadu Lawal Uwais-Justice, Supreme Court
SC 428/1974
Between
Abdul Majeed Nasiru-Appellant
And
Commissioner Of Police-Respondent
Judgement of the Court-Delivered by Augustine Nnamani
The appellant Abdul Majeed Naisiru was on the 18th March. 1974
convicted by the Magistrate First Grade Jos on 2 counts of theft of 3
bags of guinea corn belonging to his employers contrary to Section 29
of the Penal Code. He was sentenced to a fine of N120 or six months
imprisonment in default. The fine has since been paid. The appellant
appealed to the High Court of the Northern States of Nigeria,
Benue/Plateau Judicial division which on 20th September, 1974
dismissed his appeal. It is from that judgment that appeal is now made
to this Court. It is pertinent to add that the appeal to this Court
was filed on 1st March, 1976. It was struck out on 1/6/78 as
conditions of appeal were not completed but was on the application of
the appellant relisted on 6/12/79 for hearing by this Court. Briefly
the facts of this case as disclosed by the prosecution and defence
were as follows:
On 14th September, 1973, the appellant who works with the Nigerian
Livestock and Meat Authority as a Senior Poultry Development Assistant
removed 3 bags of guinea corn from the store of the Nigerian Livestock
and Meat Authority Poultry Unit Jos. He ordered one Monday Dashal PW3
to bring out the 3 bags from the store and to put them inside a Land
Rover driven by Aliyu Burtai PW4. Aliyu Burtai was to call Ibrahim
Magaji PW5 who was to show him where to deliver the bags. Ibrahim
Magaji directed Aliyu Burtai to Anglo Jos Market where the bags of
corn were delivered to one Audu Ali 2nd accused in the case. Ibrahim
Magaji himself claimed that on 13th September the appellant requested
him to find someone to buy some guinea corn and that he got 2nd
accused. He claimed that the 2nd accused deposited N10 with him and he
informed the appellant about this. He further said later the 2nd
accused gave him another N12 as part payment which he took to the
appellant but appellant told him to keep both the N10 and the N12. The
events were reported to Mr. Eniola who is the project manager
in-charge of Nigerian Livestock and Meat Authority who lodged a
complaint to the Police. The 3 bags of guinea corn were recovered. The
appellant denied the charges and claimed rather that on 5/9/73 Solomon
Akume the storekeeper PW2 and Ibrahim Magaji approached him and said
they had a problem. Solomon Akume told him that Ibrahim Magaji’s wife
had put to bed. He said they needed money for naming ceremony. Solomon
Akume, he said, suggested that they could help Ibrahim Magaji by
taking out 4 bags of guinea corn from the Poultry Store on loan. The
appellant said he agreed to 3 bags. He said he told the storekeeper to
be patient until he saw Mr. Eniola who would authorise the loan. He
had not obtained approval from Mr. Eniola because he was on
sick-leave. Appellant stated that if Mr. Eniola was not available he
could approve the loan. On 14/9/73 Solomon Akume and Ibrahim Magaji
came to his office and said they wanted to take out the 3 bags. They
all went to the store and in the presence of all of them the 3 bags of
guinea corn were loaded into the Landrover. Appellant claimed he did
not want any benefit for himself but was only helping Magaji get a
loan which if it was not paid he would pay. At the close of the
evidence of the prosecution, the Magistrate exercising his powers
under section 172 of the Criminal Procedure Code Cap. 30 Laws of
Northern Nigeria, framed the following charge against the appellant:
That you – Abdul Majeed Nasiru, on or about the 14th day of September
1973, at the Poultry Unit Jos within the Benue Plateau Magisterial
District being a servant employed in the capacity of a Senior Poultry
Development Assistant by the Nigerian Livestock and Meat Authority,
committed theft by stealing property, you stole 3 bags of guinea corn
then in the possession of the said Nigerian Livestock and Meat
Authority and you thereby committed an offence punishable under
section 289 of the Penal Code and triable by this Court. The learned
trial Magistrate in his judgment after carefully reviewing the
evidence stated –
In respect of Magaji and Akume . . .1 have no doubt in my mind that
the 1st accused removed the 3 bags from the store in order to help
Ibrahim Magaji out of a financial embarrassment connected with a
naming ceremony he wanted to organise. In this connection, I believe
that the statement made by Ibrahim Magaji marked Exhibit 8 shows
exactly what happened that day. It appears to me that Ibrahim Magaji
is disowning the statement because he wanted to save himself from
criminal prosecution. If it is true that Ibrahim Magaji were merely
acting as an innocent agent of the 1st accused he would not have
hesitated to reveal that he received N22 from the 2nd accused for the
1st accused. The investigator PW7 told the court that Ibrahim Magaji
did not mention anything about the N22 when he recorded a statement
from him. Both Solomon Akume and Ibrahim Magaji lied to the Court when
they said that they did not go to the 1st accused and request him for
a loan of 3 bags of guinea corn for Ibrahim Magaji.
Later on, in his judgment the learned trial Magistrate recommended –
that both Solomon Akume and Ibrahim Magaji be charged for abetting the
offence committed by the 1st accused.
It is against the conviction that the appellant appealed to the High
Court and to this Court. Before the High Court the appellant filed 2
grounds of appeal, ground 2 of which stated:
The Magistrate erred in law in proceeding with the case at the end of
the evidence for the prosecution when the said evidence disclosed a
case of conspiracy between some of the witnesses and the appellant to
which the said Magistrate had no jurisdiction.
The High Court, on hearing the appeal, embarked on a lengthy review of
the evidence before the Magistrate. While this may have been necessary
in evaluating the weight of evidence, it can hardly have been so in
respect of ground 2 and in the face of clear findings of fact by the
trial Magistrate. The High Court, at the end of its review, set aside
the findings of fact of the Magistrate in respect of Solomon Akume and
Ibrahim Magaji. In the case of the former they said. The evidence of
Solomon Akume PW2 is clear that the bags were removed without his
consent and in his absence, and that when he saw them out of the store
he protested to the appellant but the appellant used his authority
over the storekeeper and caused them to be dispatched. PW2 reported
the incident to their superior office PW1. The evidence of the
storekeeper was substantially corroborated by PW3 who testified that
the storekeeper refused to the removal of the bags and by PW4 who
stated that when he was going to report to PW1 he met the storekeeper
who informed the witness that he the storekeeper had already reported
to PW1. It is clear from the evidence that Solomon Akume is no
abetter.
And on the latter the High Court held:
In the absence of evidence to the contrary, it is reasonable to infer
that Ibrahim Magaji presumed that the appellant had obtained the loan
under the established procedure. There is no evidence that he knew
that procedure had not been followed. On the contrary, the statement
of Ibrahim Magaji Exhibit 8 which the Magistrate believed shows that
the appellant indicated to Ibrahim Magaji that he the appellant would
first obtain the permission of their superior officer before selling
the bags. From the foregoing it is reasonable to find that Ibrahim
Magaji being a junior officer might have acted in the removal and
disposal of the bags under a bona fide belief that the appellant had
the proper authority to give the loan ………
Later in their judgment they held that –
Had the Magistrate properly assessed the evidence he would have found
no evidence of conspiracy …..
Before us learned counsel for the appellant abandoned ground 1 and
argued only one ground of appeal which stated
The appellate court also erred in law in holding that the case of
conspiracy was not made out as to oust the jurisdiction of the learned
trial Magistrate when there was ample evidence on this and this error
occasioned miscarriage of justice.
If in proceedings in a Magistrates Court, at any stage before the
signing of judgment in the trial of a case under this chapter it
appears to the Magistrate that the case is one which ought to be tried
by the High Court, he shall in like manner frame a charge against the
accused and in so far as he has not already done so shall complete the
procedure laid down in Chapter XVII for inquiry into cases triable by
the High Court down to the framing of the charge.
Accordingly, I hold that the proceedings in which the appellant was
tried for theft under section 289 of the Penal Code was a nullity: and
therefore void and of no effect.
Judgment delivered by Sowemimo J.S.C.(Presiding)
