ABASS v. FEDERAL REPUBLIC OF NIGERIA & ORS (2018)

In The Court of Appeal of Nigeria

On Friday, the 26th day of January, 2018

CA/L/746C/2015

Before Their Lordships

MOHAMMED LAWAL GARBA  Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR  Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR  Justice of The Court of Appeal of Nigeria


Between

YAMA ABASS-Appellant

AND

1. FEDERAL REPUBLIC OF NIGERIA
2. ADELEKE ADETORO
3. ALABI OLAYINKA
4. OLANIYI TOPE
5. OBELIYA A. ABEGUNDE-Respondents

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MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): The Appellant along with four (4) other persons, were arraigned before the Federal High Court, sitting at Lagos on a four (4) counts charge No. FHC/LA/200C/2014 for offences of conspiracy, unlawful damage to petroleum pipelines, stealing of petroleum products and dealing in petroleum products without appropriate authority, punishable under the Criminal Code and the Miscellaneous Offences Act (MOA).
The charge for the offences was in the following terms: –
“COUNT I: That you Yama Abass “m” Adeleke Adetoro m Alabi Olayinka ‘m’ Olaniyi Tope ‘m’, Beliya A. Abegunde ‘m’ and others now at large on the 13th of day of July, 2014 at about 0940hrs along Epe/Ikorodu, Lagos State within the Federal Jurisdiction of this Honourable Court did conspire among yourself to commit felony to wit. Damage Petroleum Pipeline Property of the Nigeria National Petroleum Corporation (NNPC) and thereby committed an offence punishable under Section 516 of the Criminal Code Cap, C38, Laws of the Federation of Nigeria 2004.
COUNT II: That you Yama Abass ‘m’ Adeleke Adetoro ‘m’ Alabi Olayinka ‘m’ Olaniyi Tope ‘m’ Beliya A. Abegunde ‘m’ and others now at large on the same date, time and place in the aforementioned Federal jurisdiction of this Honourable Court, did not unlawfully damage petroleum pipeline property of the Nigeria National Petroleum Corporation (NNPC) and thereby committed an offence punishable under Section 7 (a) of the Miscellaneous Offence Act Cap M17, Laws of the Federation of Nigeria, 2004.
COUNT III: That you Yama Abass m’ Adeleke Adetoro ‘m’ Alabi Olayinka ‘m’ Olaniyi Tope ‘m’ Beliya A. Abegunde ‘m’ and others now at large on the same date, time and place in the aforementioned Federal jurisdiction of this Honourable Court, did steal 33,000 litres of petroleum product (PMS) valued Three Million, Two Hundred and One Thousand Naira (01,201,000.00) property of the Nigeria National Petroleum Corporation and thereby committed an offence punishable under Section 390 of the Criminal Code, Cap C38 Laws of the Federation of Nigeria, 2004.
COUNT VI: That you Yama Abass ‘m’ Adeleke Adetoro ‘m’ Alabi Olayinka ‘m’ Olaniyi Tope ‘m’ Beliya A. Abegunde ‘m’ and others now at large on the same date, time and place in 
the aforementioned Federal jurisdiction of this Honourable Court, did deal in petroleum product without appropriate authority and thereby committed an offence punishable under Section 7(b) of the Miscellaneous Act, Cap M17, Laws of the Federation of Nigeria, 2004.”
In the course of trial and after the prosecution’s case was closed, the Appellant and other accused persons made a no case submission which was upheld in part in respect of counts I and II and they were discharged of the offences charged in the two (2) counts.
The accused persons gave evidence in defence of the offences charged in counts III and IV and in a judgment delivered on the 11th of May, 2015, the Appellant and 2,4 and 5 accused persons were each convicted of the offences and sentenced to six (6) years imprisonment to run concurrently.
Being aggrieved by his conviction and sentence, the Appellant brought this appeal by the Notice of Appeal dated and filed on the 8th of June, 2015, on four (4) grounds.
In the Appellant’s brief filed on the 7th of August, 2015, the following two (2) issues are submitted for determination in the appeal: –
“i) Whether from the evaluation of evidence the learned trial judge of the Court below was right to rely solely on the hearsay and uncorroborative evidence of the prosecution sole witness and uncorroborative extra judicial statement of the Appellant (Exhibit A1) which is at variance with his oral testimony to hold that the prosecution proved the offence in counts III and IV beyond reasonable doubt to warrant sentencing the appellant to 3 and 6 years terms of imprisonment. (This issue covers grounds ONE and FOUR of the Notice of Appeal).
ii) Whether the placing and reliance on permutation, voyage of discovery, speculation, wrong inferential Notion and wrong deductive reasoning by the learned trial judge of the Court below to come to the conclusion that there exist mens rea and actus reus to find the appellant guilty on counts III and IV is perverse and entered per incuriam (This issue covers grounds two and three of the Notice of Appeal at pages 400 to 404 of the Records of Appeal).”

The Respondent did not file a brief or any other process in the appeal even though the record of the Court shows that it was duly served with all the relevant processes of the appeal, including the

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Appellant’s brief and Hearing Notice. It was also not represented at the oral hearing of the appeal in Court on the 2nd of November, 2017 when the Appellant’s brief was adopted by learned counsel for the Appellant.
From the grounds of the appeal, the germane issue which calls for decision is simply whether the offences the Appellant was convicted for were proved beyond reasonable doubt by the evidence adduced by the prosecution before the trial Court. On the authority of Hassan vs. Aliyu (2010) 17 NWLR (1223) 547, Governor, Ekiti State vs. Olubunmo (2017) 3 NWLR (1551) 1 @ 23, I would determine the appeal on the basis of the concise and simple issue.
The Appellant’s submissions are to the effect that the evidence of the sole witness called by prosecution did not prove all the essential ingredients of the offences in counts III and IV of the charge he was convicted for. It is contended that the evidence was hearsay and the trial Court erred in relying on the Appellant’s statement to the police, admitted in evidence as Exhibit A1, which was inconsistent with his testimony before the Court. Relying on Section 139 of the Evidence Act, 2011, Federal Republic of Nigeria vs. Usman (2012) ALL FWLR (632) 1639 and Olanipekun vs. State (2012) ALL FWLR (607 752. Counsel submits that the prosecution bears the burden of proof beyond reasonable and that where any doubt is left or created by or in the evidence adduced by the prosecution, an accused person would be entitled to the benefit of being discharged on ground of failure to discharge the burden as required by the law. In further argument, it is said that there was no material evidence at all that the Appellant stole petroleum products as the evidence of sole witness called by the prosecution was based on information he received from another person who was not called as a witness in the case and so inadmissible. Also, that admission of accused person does not relieve the burden on the prosecution to prove the offences against an accused person, beyond reasonable doubt. It is further argument of counsel that no investigation was carried out on where the petroleum products were stolen from or where the pipelines were vandalized or tempered with by the Appellant. Several cases, including Kakih vs. PDP (2015) ALLFWLR (764) 20 @ 33 on treatment of hearsay evidence, Olagesin vs. State (2013) ALL FWLR (670) 1357 @ 1359 on the duty of proof beyond reasonable doubt, and Babarinde vs. State (2013) ALL FWLR (662) 1731 @ 1743 on failure to call a vital witness were cited and the Court is urged to hold that the evidence adduced by the prosecution before the trial Court did not prove the offences in counts III and IV of the charge against the Appellant beyond reasonable doubt as required by the law, and to set aside the judgement appealed against. The Court is further urged to discharge and acquit the Appellant of the said offences, in consequence.
By way of a general restatement of the law, by the combined provisions of Sections 36(5) of the Constitution and 135(1) and (2) of the Evidence Act, 2011, the burden of proving that a person accused of commission of and charged for a criminal offence or crime before a Court of law, is on the person who alleges the commission of the offence or crime. The standard of proof required and burden placed on the person or prosecution making the allegation is one beyond reasonable doubt. Eze v. FRN (1987) 2 SCNJ, 76 Okpulor v. State (1990) 21 NSCC (pt. 3) 496, Ojiako vs. State (1991) 2 NWLR (175) 578. In addition, the law is that the burden of proof, in criminal trials, is and remains on the prosecution throughout the trial until such a time and stage when all the essential ingredients or elements constituting the offence/s an accused person was charged with, are proved as required by the law to the satisfaction of the trial Court. The burden of proof, by the provisions of Section 135 (3) of the Evidence Act, only shifts from the prosecution to the accused person if the commission of the crime is proved beyond reasonable doubt, but before then, it remains on the prosecution and does not shift throughout the trial. See Aruna v. State(1990) 6 NWLR (155) 125, Adekunle v. State (2006) ALLFWLR (332) 1452, Kingsley v. State (2010) 6 NWLR (1191) 593.

In the case against the Appellant, the offence in count III alleges that he and the others stole Thirty-three Thousand (33,000) litres of petroleum products, property of NNPC and thereby committed an offence punishable under Section 390 of the Criminal Code Cap C38 LFN, 2004. The crime alleged to have been committed by the Appellant in the count is one of stealing, Section 390 of the

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Criminal Code provides that: –
“Any person, who steals anything capable of being stolen, is guilty of a felony and is liable if no other punishment is provided, imprisonment for 3 Years.”
The offence of stealing punishable under the above provisions is defined in section of the code thus: –
“Any person who dishonestly;
(a)Takes the property of another person; or
(b) Converts the property of another person for his own use or to the use of any other persons, is guilty of the offence of stealing.
“Any person who steals anything capable of being stolen, is guilty of a felony and is liable if no other punishment is provided, imprisonment for 3 Years.”
In the case of Chiamugo vs. State (2002) 2 NWLR (750) 225, the Court stated that the essential ingredients of the offences of stealing are follows: –
1. The ownership of the property stolen,
2. That the property stolen is capable of being stolen.
3. That dishonest taking or conversion of the property.
See also Adepoju vs. State (2011) 12 NWLR (1261) 347 Oshinye vs. COP (1960) 5 SC, 105, Uzoka v. FRN (2009) 2 NWLR (1177) 118.
The property of or belonging to any person or a body corporate, is capable of being stolen and property includes money and all other property; real, personal or intangible things which are the property and owned by a person. What then, was the evidence adduced by the prosecution to prove the essential ingredients of the offence of stealing the amount of petroleum products the Appellant was convicted for?
As stated by counsel for the Appellant, one witness testified for the prosecution in proof of the offence charged. The evidence in-chief of the PW1 one Police corporal, Paul Zakka of Force Head Quarter Annex, Moloney Street, Lagos and attached on special duty to the IGP Special Task Force or Anti-Pipeline Vandalism, Lagos Sector, is at page 87-93 of the Record of Appeal. The relevant portion is as follows: –
“On the 13/7/2014 at about 6 a.m my sector commander D.S.P. Samson Olawoyin called me on phone that he had an information that a truck loaded with petroleum products suspected to have been vandalized from NNPC Pipeline was coming to Ikorodu, so based on that myself and 3 others moved to Ikorodu. The D.S.P. Samson Olawoyin led the operation.
On getting to 
Ikorodu, we went straight to the filing station along, Igede Road. It has Con Oil logo and a fast food eatery attached to the station on. On getting there we met a truck of 33,000 litres discharging PMS products in the station. At the scene we arrested Adeleke Adetoro the 2nd accused person and Yama Abass the 1st accused person.
On the brief interrogation, we discovered that one compartment was discharged at Ododo filing station Igede Ikorodu within the area. What I mean by compartments is that a long truck has 3 compartment of 11 litres content each we immediately moved to the 2nd filing station which is Ododo filing station in Igede.
On getting there, we arrested the 3rd accused person Alabi Olayinka and then moved them to our office in Obalande.
On getting to the station, Adeleke Adetoro told us that he negotiated the buying of the products with the manager of the filing station and his supervisor that is the Con Oil filing station which led the arrest of the manager of the filing station and his supervisor that is Con Oil filing station.
Thereafter I compiled the case file and handed it over to the administrative officer because my 
posting came out to Allas cove.”
The statements made by the accused persons to PW1 were tendered in evidence and the Appellant’s statement, as stated before now, was marked as Exhibit A1.
Under cross-examination (CX) by the Appellant’s Counsel, PW1 said he did not ask for the source of information given to him by his commander and that as the Investigating Police Officer (IPO) he did not complete the investigation of the matter before he was transferred. On further cross-examination by the Counsel for the 2nd accused person, PW1 said they did not go to where the NNPC pipelines were alleged to have been vandalized and that the driver of the truck found discharging the petroleum products had absconded and so the Appellant; his conductor was arrested. PW1 said he did not know if the NNPC was aware that the accused were arraigned before the trial Court. The witness said that he knew that the accused persons were not vandals but receivers of the vandalized products, when cross-examined by Counsel for the 4 and 5 accused persons.
His friend; one Fabulous who was the driver of the truck that was arrested discharging petroleum products by the PW1, had

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informed him that the products were from vandalized NNPC pipelines, but did not tell him the location of the pipelines. That he went to Shagamu on the 13th of July, 2014 to meet Fabulous and on getting there, he met a truck loaded with petroleum products and some people who harassed him. Later, a police man accompanied the truck along with the Appellant to where it was eventually arrested by the PW1’s team.
The Appellant in his testimony before the trial Court said his friend Fabulous called him on the phone to meet him at Ikorodu where the petroleum products were being discharged and that it was at the place that he was arrested by PW1’s team. He said he did not know from where the petroleum products were loaded by his friend.
The trial Court, after reference to the evidence of PW1, the Appellant and in Exhibit A1, stated in its judgement that: –
“It is clear from the confessional statement of DW1 that 33,000 litres of PMS supplied to Con Oil filing station and Ododo filing station was gotten from vandalized NNPC pipelines. He was found in possession of the products and he discharged them to the two filing stations. It is also clear he dealt with petroleum products without authority from the department of petroleum resources. Having known the products were gotten from vandalized NNPC pipelines, he received stolen property having known it was stolen and disposed of it to deprive NNPC permanently the use of same.”
Relying on Oladejo vs. State (1987) 3 NWLR 419 (sic), the trial Court used the Exhibit ‘A1’ along with the other statements by 2nd, 4th and 5th accused persons, to conclude that: –
“… from the facts placed by the prosecution before the Court especially Exhibits A1, A2, A4 and A5, I have no doubt in my mind that they conspired to commit the offence and they indeed stole 33,000 litres of petroleum motor spirit (PMS), property of the NNPC.”
The Appellant was then convicted of the offences in Counts III and IV of the charged, along with the other accused persons.
The pertinent question that arises here is whether the essential ingredients of the offences of stealing in Count III were proved beyond reasonable doubt by the evidence adduced by the prosecution. As a reminder, the first of such ingredients is that there should be ownership of the property stolen. Was there any cogent evidence that reasonably and with any degree of certainty, which is an essential element of proof of criminal liability, see Uyo vs. AG, Bendel State (1986) 1 NWLR (1971) 418, (1986) 2 SC, 1, show that the petroleum products loaded in the truck arrested was the property of the NNPC as found by the trial Court? As was seen, the trial Court relied solely, or at least heavily, on the statement of the Appellant in Exhibit A1, which was said to be a confessional statement to convict him for the offence of stealing.
The statement was to the effect that the Appellant’s friend Fablous had informed him that the products were loaded from NNPC vandalized pipelines.
PW1 in his evidence also mentioned that his commander had told him on the phone that a truck loaded with products suspected to be from vandalized NNPC pipelines was discharging at Ikorodu. However, inspite of the statement by the Appellant in Exhibit ‘A1’ and the information from his commander, PW1; the IPO did not investigate the information in order to ascertain the source or origin of the products loaded on the truck arrested. There was no evidence of any report by the NNPC of any theft of its property or of confirmation that the products found on the truck was indeed, its property which was stolen from any of its facilities.
The truck loaded with the products, as shown by the evidence before the trial Court, was in a Con Oil colour, which is a known Oil Marketer and it was arrested while discharging the products at PMS filling station, during the hours of the day; in broad daylight, and so until the products were proved beyond reasonable doubt to have been stolen from the NNPC facilities, there is the reasonable presumption that the products were obtained in the course of the ordinary business of Con Oil and discharged at the usual places of dispensing the products; the PMS Filing Station. It is merely speculative and conjunctive to say that on the unverified information given by the third (3rd) parties who were not called as witnesses at the trial, report of which was given by PW1 and the Appellant in their respective evidence was sufficient proof beyond reasonable doubt that the products were in fact, the property of the NNPC which were stolen from vandalized pipelines.
The evidence adduced by the prosecution, including the

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Exhibit ‘A1’ leaves gaping doubt as to the NNPC ownership of the petroleum products found on the truck and as to whether they were in fact, loaded from vandalized pipelines as alleged by the prosecution. The evidence by PW1 on the source or ownership of the petroleum products in question, based entirely on the information allegedly received from his Commander and in Exhibit A1, which was an information allegedly given to the Appellant by his friend, who were not called as witnesses at the trial, was purely hearsay since it was used by the trial Court as the truth of what they purport to say and proof of the offence of stealing.
By the provisions of Section 37 of the Evidence Act, 2011, hearsay means a statement, oral or written made otherwise than by a witness in a proceeding, which is tendered in evidence for the purpose of proving the truth of the matter stated therein. Section 38 of the Act renders such hearsay evidence inadmissible except as provided thereunder or any other Act. Even though under the provision of Section 42(b) of the Act, Exhibit A1 may be admissible against the Appellant and if true, would expose him to either criminal or civil liability, it did not constitute credible evidence of the quality that proves the allegation of stealing against the Appellant, beyond reasonable doubt.
This first ingredient was therefore not proved as required by the law. The law is that proof beyond reasonable doubt required of the prosecution is proof of all the essential ingredients of an offence, together or conjunctively and that failure to prove any of them, is failure in the standard of proof, there by leaving a doubt which is to resolved in an accused persons favour. Adara vs. State (2006) ALL FWLR (311) 1777, Shahu vs. State (2010) 8 NWLR (1195) 112. Igri vs. State (2012) 6-7 MJSC (pt. III) 107, Shande vs. State (2005) 6 SC (Pt. II) 1. For failure to prove the first essential ingredient of the offence of stealing in Count III beyond reasonable doubt against the Appellant, he is entitled to have doubt created by the evidence of the prosecution, resolved in his favour.
The offence in Count IV is dealing with petroleum products without appropriate authority, said to be punishable under Section 7(b) of the Miscellaneous Offences Act (MOA) 2004.
However it is Section 1(17) of the MOA which provides for the offence of dealing with petroleum products as follows: –
“Any person who without lawful authority or an appropriate licence –
(a) Imports, exports, sells, offers for sale, distributes or otherwise deals with or any crude oil, petroleum or petroleum product in Nigeria.
(b) Does any act for which a licence is required under the Petroleum Act
Shall be guilty of an offence and liable on conviction to imprisonment for life and in addition, any vehicle, vessel, aircraft or other conveyance used in connection therewith shall be forfeited to the Federal Government.”
The basic requirements or elements of the offence are: –
(a) That a person; natural or corporate, dealt in petroleum products and
(b) That the person dealt with petroleum products without appropriate authority or licence.
Dealing in petroleum product would simply import using the products in such a manner as to make gains or benefits therefrom by way of trade or commerce. See Anim vs. FRN (2014) LPELR-23219- (CA).

The evidence before the trial Court against the Appellant in particular, is that he was arrested at Ikorodu where the truck was discharging petroleum product and that he is the conductor or motor boy to the driver of the truck who had absconded.
The evidence does not demonstrate let alone prove beyond reasonable doubt how the Appellant dealt with petroleum products without the appropriate authority or licence for the purpose of the offence charged. Even if the statement in Exhibit ‘A1’ that he was informed by his friend; the truck driver, that the products were petroleum products loaded from vandalized pipelines, was believed hook, line and sinker, it does not suggest that the Appellant dealt with petroleum products without appropriate authority.
There is no evidence howsoever to prove the offence in Count IV against the Appellant and his conviction for the offence has no legal basis whatsoever. For failure by the prosecution to prove the offence beyond reasonable doubt, the conviction of the Appellant by the trial Court for the offence on Count IV cannot and should not be allowed to stand.
In the final result, I find merit in the appeal and allow it. Consequently, the conviction and sentence of the Appellant for the offences in Count III and IV by the trial Court in the

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judgement delivered on 11th of May, 2015 are hereby set aside. The Appellant is discharged and acquitted of the said offences.
TIJJANI ABUBAKAR, J.C.A.: My Lord and learned Brother, MOHAMMED LAWAL GARBA, JCA granted me the privilege of reading in draft the leading Judgment just rendered. My lord has as usual fully and efficiently covered the field, I therefore have nothing extra to add, except to say that I am in full agreement with the reasoning and conclusion and therefore adopt the Judgment as my own.
YARGATA BYENCHIT NIMPAR, J.C.A.: My learned brother, MOHAMMED LAWAL GARBA, JCA gave me the opportunity of reading in advance the judgment just delivered. I agree with the reasoning and conclusion arrived in the lead judgment.
The judgment considered all the issues distilled by the parties and it leaves little room for me to add anything. Having failed to satisfactorily prove NNPC’s ownership of the petroleum product, the offence of stealing was not made out by the prosecution and the lower Court erred in finding otherwise.
For this and the other elaborate reasons in the lead judgment, I too allow the appeal. I abide by the consequential orders made in the lead judgment.
22
Appearances:
V.I.P. Nwana, with him, A. I. OkoyeFor Appellant(s)
Respondents not representedFor Respondent(s)
>

Appearances

V.I.P. Nwana, with him, A. I. Okoye-For Appellant

AND

Respondents not represented-For Respondent

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