Stealing can be proved by circumstantial evidence but this must be distinguished from suspicion. There is always the danger in cases depending on proof by circumstantial evidence that suspicion may take the place of legal proof. Suspicion is a fact which suggests that a person may have committed an offence but yet is not sufficient to support an inference of guilt. Suspicion cannot support a conviction and a combination of facts of suspicion cannot give them the quality of circumstantial evidence.

The fact that a defendant was in possession of large sums of money and property beyond his income is not circumstantial evidence of stealing but only constitutes suspicion. In Idowu v The State (1998), the defendants were convicted of conspiracy, stealing and forgery. Idowu was the accounts clerk and the other defendant was the cashier of the company. During an audit, some alterations were observed in the cash books kept by the cashier and money was discovered to be missing. The evidence showed that the cashier was solely responsible for the alterations and the only evidence against the appellant was that he failed to detect them. The Supreme Court discharged and acquitted the appellant. Kutigi JSC said,

“As regards conviction for the charge of stealing which as shown above was based merely on the finding by the High Court that, ‘the property owned by the appellant is over and above his income’ and that ‘he therefore shared the money with the 1st accused or co-accused’ is clearly untenable. I am not aware of any law that says people who own property above their income are necessarily suspects who must have got their monies or properties from particular unauthorised or illegal sources. Even if the appellant owned properties above his income, the conclusion that it was his former employer’s money that he misappropriated is to me unsupportable.”

In Chianugo v The State (2002), the defendants were charged with the offences of conspiracy and stealing. The case of the prosecution was that a large quantity of newsprint was missing from the warehouse of their employer. There was evidence that the Chianugo had been selling papers and had made huge deposits and withdrawals on his bank account and bought a car for his wife. However there was no evidence that he had stolen any property. In overruling the no-case submission the trial Judge said that the prosecution had established a prima facie case and he must explain, how he came about the huge deposits made into the bank accounts, where he found the money to build a bungalow in his village and his wife must explain where she got the money to buy the car. The Court of Appeal discharged and acquitted the appellants. Aderemi JCA said,

“The reasoning does not represent the state of the law. It is not the duty of a defendant to prove his innocence. The prosecution must establish the guilt of a defendant. It is not the law that in a criminal case – when a defendant is shown to be in possession of some money, he must come to court to explain that the money is not the proceeds of some theft. The prosecution in my humble view ought first to establish by evidence the offence of stealing alleged. That the defendant is in possession of large sums of money beyond his ordinary income can only be relied upon as a secondary plank. It cannot be primary proof of the offence of stealing.”

Gross Negligence

Many times the offence of stealing can be proved only by circumstantial evidence. Where the prosecution can prove that the negligence of the defendant in execution of his duties resulted in the loss of money or property then the court is entitled to draw the inference that the defendant was acting dishonestly. There is judicial authority that gross negligence is evidence that a person was acting dishonestly. In Wilson v Inyang (1951), the Court of Appeal in England said, “Gross negligence or strong negligence is always evidence, very often the best evidence that a man was not acting honestly.”

However, it is important to note that while negligence is an indication of dishonesty it cannot alone be conclusive proof of guilt. In Amadi v The State (1993), the prosecution alleged that six cheques were stolen from the offices of one company and then forged and uttered to induce delivery of money to another company. The trial Judge found that the negligence of the Amadi resulted in the removal of the cheques from the accounting system. The Supreme Court held that it was wrong for the trial Judge to base the conviction for stealing on the finding of negligence. Kalgo JSC said, “Although negligence is the best evidence that a person was not acting honestly, it is not and cannot alone be conclusive proof of criminal culpability.”

To prove gross negligence in the execution of a duty the prosecution must establish the proper course of business procedure and then lead evidence to show that the defendant failed or omitted to follow the usual procedure in the execution of his duty without justifiable excuse. The presumption in section 167(c) of the Evidence Act states that the court may presume that the common course of business has been followed in particular cases. Section 13 of the Evidence Act states that evidence of facts which show the existence of any course of business according to which the act in question would naturally have been done is relevant.

In Shodiya v The State (1992), the appellant (Deputy Sheriff) was charged and convicted along with another defendant (Bailiff) with the offences of conspiracy and stealing. The prosecution alleged that the deputy sheriff directed the bailiff to levy execution and sums of money were recovered. The appellant checked the money and returned it to the bailiff for safekeeping. Subsequently, it was discovered that the money was missing and nobody could explain the disappearance. The prosecution led evidence of the normal procedure for handling money realized from an execution and showed that, it was the duty of the bailiff and not the appellant to make the entry in the cash register but he failed to do so. The Supreme Court held that the appellant was negligent because he failed to ensure that the entry was made by the bailiff. However, in the absence of any evidence of conspiracy, the negligence of the appellant was not criminally culpable but only exposed him to suspicion.

In COP v Obianaba (1966), the defendant as cashier, made an inflated entry and recorded the sum of #20.5s.0d but paid out only #3.5s.0d and could not explain the discrepancy. The Supreme Court held that where wrong entries are unexplained or the explanation is untrue, a court is entitled to regard the wrong entries as evidence of dishonesty. The cases of Shodiya (supra) and Obianaba (supra) can be distinguished because in the former case the appellant neglected to ensure that the entry was made whereas in the latter case the defendant actually falsified the entry.

In conclusion, proper internal audit and investigation into allegations of stealing by any person must be conducted and it is not sufficient to rely upon negligence in the execution of his duties or findings of money or property beyond his income. The taking, transfer or removal of the money or property with fraudulent intention must be established before a person is charged otherwise he may be acquitted of the offence.