The following joint judgment was delivered: The appellant was tried summarily in the Supreme Court of the Kaduna judicial Division on a charge containing two counts. The first count was for receiving a motor spare wheel and tyre, “knowing the same to have been stolen or unlawfully obtained”, contrary to section 427 of the Criminal Code. On this count he was acquitted.
The second count was for willfully destroying a railway consignment note, knowing that it might be required “as evidence in Court” and with intent that it might not be so used, contrary to section 123. He was convicted on this count and was bound over to come up for judgment if called upon within six months; and it is against this conviction that he has appealed.
The ground of appeal (there was one other which was not put forward at the hearing) was that “the learned judge” should not have convicted on second count since he found me not “guilty on first count on which second count “depended” . We do not agree that the second count “depended “on the first (each count is separate) but Mr. J. I. C. Taylor’s argument for the appellant showed that what the appellant meant was that conviction on the second count was based on findings of fact which were inconsistent with the findings of fact which led to the acquittal on the first count.
The appellant was the booking clerk of the Nigerian Railway at Kaduna North Station; the spare wheel and tyre (which we will refer to as the tyre) were the military property of an Infantry Garrison Company stationed at Kaduna; and the consignment note was for the consignment of the tyre by rail to Jos.
It was proved that the tyre was stolen from the Garrison Company’s garage and that it was afterwards found in the Railway Station in such circumstances as to establish that the appellant had received it within the requirements of section 427 of the Criminal Code. That left the issue (on the first count) of guilty knowledge.
The learned judge summed up all the evidence relevant to this, considered the defence of the appellant and, in the result, he acquitted him, although ..with considerable misgivings” .
This means, so runs Mr. Taylor’s argument, that the learned judge found the accused’s defence to be consistent with his innocence of any knowledge that the tyre had been stolen or unlawfully obtained; consequently how could the judge find (as he did in his judgment in reference to the second count) that when the appellant destroyed the consignment note he did so “knowing that” it might (Page 4)
be “required in evidence in connection with the theft of the tyre “? If this were so. he should have been convicted on the first count; but on the contrary, he was acquitted because his defence was found to be consistent with innocence of any knowledge that the tyre had been stolen.
We agree that this finding of fact (that the appellant knew the document might be required in evidence in connection with the theft of the tyre) is inconsistent with the acquittal on the first count and contradicts it.
The section under which the charge was brought is a very wide one. It is as follows:- “123. Any person who, knowing that any book, document, or other thing of any kind, is or may be required in evidence in a judicial proceeding, willfully destroys it or renders it illegible or undecipherable or incapable of identification, with intent thereby to prevent it from being used in evidence is guilty of a felony, and is liable to imprisonment for three years.”
It is not essential for the appellant to have known that the tyre was stolen, or that the -document might have been required in evidence in connection with the theft of the tyre. The essential thing is that he must have known that the document “may be required in a judicial proceeding” and also to have destroyed it to prevent its use in evidence.
There was evidence (and it is clear that the Judge believe it and found such to be the facts) that the tyre had been claimed by the Military and removed by them from the station, and that the appellant knew that they had done so; that the police sergeant told the accused that he was making enquiries “about the tyre”; that the police had taken possession of the document for the purpose of their enquiries; that the appellant tried to get it out of their possession.. and that he snatched it away (leaving only the part by which the sergeant was holding it) and destroyed it. In addition, it was proved that the appellant had crumpled it up and thrown it away, before it got into the possession of the police. The appellant at his trial denied having destroyed the document, and the Judge found that he had done so.
It is thus clearly proved that the appellant knew that a police investigation about the tyre was an existent actuality. Police investigations ate not necessarily followed by judicial proceedings but they may be. The appellant being a Railway Clerk must be a man of some education. It is a very reasonable inference, to be drawn from the circumstances that the appellant must have known that the document might be (not necessarily was or would be) required in a judicial proceeding about the tyre (not necessarily a criminal proceeding). The intent is to be inferred from the destruction of the document.
The finding of fact which is the basis of the appellants case was inconsistent (as has been said) and therefore cannot be upheld but it was not a necessary one for the success of the prosecution.
We are of opinion that the conviction on the second count is neither unreason- able nor one that cannot be supported having regard to the evidence and are satisfied that the judgment of the Court below should be affirmed and the appeal dismissed.
Appeal dismissed.