The appellants, Lazarus Atano and Eugene Odiachi, were arraigned in a Sapele High Court, Bendel State on an information containing three counts, namely, 1st court, Conspiracy punishable under Section 516 of the Criminal Code Law, Cap 48 Volume II Laws of Bendel State of Nigeria 1978, 2nd count, Stealing contrary to Section 390 of the same Criminal Code Law and 3rd count, Arson punishable under Section 443 of the same Criminal Code Law. The case was tried by Obi, J who after taking the evidence for the prosecution and the appellants and listening to the addresses of counsel for both sides held in his judgment dated 30th June, 1983 that the prosecution had proved beyond any reasonable doubt all the three courts in the information against the appellants. Accordingly he found them guilty on all the three counts and convicted them on the three counts. After listening to allocutus of counsel for the appellants, the learned trial Judge passed the following sentences on the appellants in respect of each of the counts he convicted them.

“1st accused: 1st count – Cautioned and discharged, 2nd count – 15 months I.H.L, 3rd count – 5 years I.H.L

2nd accused: 1st count – cautioned and discharged. 2nd count – 15 months I H L, 3rd count – 5 years I H L, The sentences to run concurrently”

The appellants, being dissatisfied with their convictions and sentences appealed against them to the Court of Appeal, Benin Judicial Division. That court, coram Eboh, Ikwechegh, and Ajose Adeogun, JJ CA dismissed the appellants appeals in respect of counts 1 and 3 of the information against them, that is to say, the courts of conspiracy and arson and affirmed the convictions and sentences of the appellants in respect of them The Court of Appeal, however, allowed the appeals of the appellants in respect of the court of stealing the 2nd count and set aside their convictions and sentences in this respect.

The reason why the Court of Appeal allowed the appellants appeal on the count of stealing will be found in the following passage from the lead judgment of Abal Ikwechegh JCA in that court-

“One area that seems not so clear to me is as to how much money was stolen by the appellants on 18/5/81. There is no question that they did steal a large sum of money, but was it N410,000 or less. The proof as to the exact sum is to my mind not satisfactory, but that is only as to what amount, It is for the obvious effort of covering up the theft that the appellants set this fire and hid away or destroyed those two vital books, the General Ledger and the Cash Reserve Register, for their calculation is that in having destroyed the vital evidence the crime could not be established What folly!

PW4 and PW10 may have differed as to whether or not the total cash holding could be ascertained without the Ledger and the Cash Reserve Register, but is this any sufficient reason why the appellants should steal the money they were paid to keep and then go Scot- free? That consideration does not occasion any mis-carriage of justice for the offence of arson is properly proved. I have earnestly studied the Brief of Arguments for the appellants but I find nothing that could be said to have shown that the trial Judge was wrong in this decision. The very best effort that I can make in favour of the appellants is the conclusion that I have reached that what sum of money was stolen from the Bank on 18/5/81 has not been satisfactorily established. If therefore I am right in this the sentence of 15 months on the 2nd court will not stand.

The appellants were not satisfied with the limited success they achieved in the Court of Appeal. They have now appealed to this court against that part of the decision of the Court of Appeal which dismissed their appeals on counts 1 and 3 of the information against them that his the courts of conspiracy and arson.