Case of the Week: Rahim Ibrahim & 3 others v. The Public

Court of Appeal, Criminal Appeal No. H2/2/201 | Judgment delivered on 18 July 2017

Introduction:

Can mere possession of suspected stolen property, without proof of knowledge, sustain a criminal conviction?

This case examined the proper use of circumstantial evidence, the burden of proof in criminal trials, and whether section 148 of the Criminal and Other Offences Act, 1960 (Act 29) creates a criminal offence.

Facts:

The complainant, Emmanuel Eledi, reported to the police that several items, including a 50-inch LG flat-screen television, a Dell laptop and an iPhone, had been stolen from his room in Wa.

During investigations:

The 2nd Appellant, Salifu Shierif, was arrested after the police found the 50-inch LG television in his room. He explained that he obtained it from the 1st Appellant, Rahim Ibrahim, by exchanging his own 43-inch television and adding cash.

Rahim, upon arrest, admitted that the television belonged to the complainant but claimed that he had purchased it from another accused person, Haadi, who was at large (on the run). He was unable to provide any evidence to support this claim.

A Dell laptop belonging to the complainant later came into police custody through the 3rd Appellant, Sadat Seidu Guonaa, who initially denied wrongdoing but later changed his plea from not guilty to guilty during the trial.

The 4th Appellant, Aloya Amadeus, was found in possession of a damaged iPhone, which the complainant identified as his stolen phone. The 4th Appellant stated that the phone had been brought to him by the same accused person at large, Haadi for assistance, and that the damage was caused by that person.

At the conclusion of the trial, the High Court convicted all the accused persons of various offences including unlawful entry, stealing, possession of stolen property under section 148 of Act 29, and unlawful damage, and sentenced each of them to 10 years’ imprisonment with hard labour.

The Appellants appealed against both their convictions and sentences.

Issues for Determination:

1. Whether the prosecution proved the offences against each Appellant beyond reasonable doubt.

1. Whether section 148 of Act 29 creates a substantive criminal offence capable of sustaining a conviction.

1. Whether the trial court was entitled to rely on the circumstantial evidence adduced.

1. Whether the sentences imposed were harsh, excessive, or wrong in principle.

The Court’s Holding:

The Court of Appeal held that:

In respect of the 1st Appellant, the unexplained possession and disposal of the complainant’s television, together with the failure to substantiate the alleged purchase from a person at large, justified the inference that he unlawfully entered the complainant’s room and stole the television. His conviction for unlawful entry and stealing was therefore affirmed. However, the sentence of 10 years’ imprisonment was found to be disproportionate and was reduced to 4 years.

Regarding the 2nd Appellant, the Court found that the prosecution failed to prove that he knew the television was stolen at the time he received it. Knowledge being an essential ingredient of the offence of dishonest receiving, his conviction was unsafe and was quashed.

As for the 3rd Appellant, the Court held that although he pleaded guilty, his conviction for possession of stolen property under section 148 of Act 29 was a nullity, since the section does not create an offence. He was accordingly acquitted and discharged.

In the case of the 4th Appellant, the Court found that the prosecution failed to establish that he knew the iPhone was stolen or that he caused the damage to it.

 His explanation raised reasonable doubt, and his conviction was set aside. Crucially, the Court clarified that section 148 of Act 29 does not create a criminal offence, but merely provides a rebuttable presumption applicable where a person is properly charged with dishonest receiving under section 146.

Implication of the Decision:

The decision affirms that possession of suspected stolen property alone is insufficient for a conviction unless accompanied by proof of knowledge. It also settles the long-misapplied position that section 148 of Act 29 is not an offence-creating provision, and that convictions founded solely on it are void. The case further underscores the duty of appellate courts to correct miscarriages of justice, even where an accused has pleaded guilty or failed to appeal.

Significant Quote:

“As a court of law, even though the fourth accused did not appeal against conviction but was apparent that he ought to have been acquitted and discharged by the trial High Court but was convicted, I am duty bound to ensure that a party whose case is before me does not suffer substantial miscarriage of justice and having come to that conclusion I am under legal duty to acquit and discharge the fourth accused. An appellate court is duty bound to set aside wrong decision of law or void decision irrespective of how it comes to its notice and in what form or shape.”

Section 148 of Act 29 is not an offence creating provision and does not also prescribe the nature of the offence, that is, a felony or misdemeanor and the sentence that may be imposed on a person who acts contrary to it. Section 148 becomes relevant where a person is charged with dishonestly receiving of property under section 146 of Act 29 and it is proved that the person has in his possession or under control anything which is reasonably suspected to have been stolen or unlawfully obtained, the accused person would be presumed that the property was stolen or unlawfully obtained and may be convicted for the offence of dishonestly receiving unless he gives a satisfactory account to establish that he did not know it to be a stolen property or was unlawfully obtained.

The conviction under section 148 is a nullity as it is not an offence under which a person may be tried and convicted.”

– Ackah-Yensu (Ms), JA

Commentary and Insight:

This case delivers a crucial clarification on two persistent legal errors. First, it definitively holds that Section 148 of Act 29 does not create a standalone offence; it is merely a rebuttable presumption to aid a charge under Section 146 (dishonestly receiving). Convictions under Section 148 alone are nullities. Second, it reinforces that for prosecuting criminal offences, proof of knowledge the property was stolen is essential – mere possession is insufficient.  Any conviction founded solely on section 148 is therefore a nullity.

Also, the Court’s suo motu (on its own motion) acquittal of the 4th accused, Aloya Amadeus is a highly substantial and principled aspect of the judgment. While the core ruling corrected statutory misinterpretation, this action showcased the appellate court’s inherent duty as a guardian of justice and not mere procedural auditors.

They firmly asserted their authority as a guardian of justice when they held that where a fundamental nullity or miscarriage of justice is apparent from the face of a record – such as a conviction for a non-existent offence – it is legally and ethically bound to intervene, irrespective of whether or not, the accused person who suffered such a miscarriage of justice appealed. This prevents the injustice of a person languishing in prison under a void conviction due to legal ignorance or procedural inertia. It underscores that the court’s ultimate mandate is to ensure justice, not just process.