GULKATHI v. CHAMA (2021)

GULKATHI v. CHAMA

(2021)LCN/14947(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Monday, January 11, 2021

CA/YL/142/17

RATIO

CRIMINAL LAW: INGREDIENTS OF PROVING CRIMINAL TRESPASS

The ingredients that must be proved for a conviction were well enumerated in the case of CHRISTIAN SPIESS VS. JOB ONI (2016) LPELR – 40502 (SC) at PAGES 10 – 11, PARAS. A – B, his lordship Muhammad, JSC (as he then was) held thus:
“The ingredients for proving criminal trespass are as follows:
(a) Unlawful entry into or upon a property in the possession of another, or unlawfully remaining there.
(b) An intention to commit an offence, or to intimidate, insult or annoy the person in possession of the property.”

In the above judgment, it was held that the necessary intendment of the two ingredients above presupposes that:
i. There must be an actual entry by the person interested as constructive entry by a servant, for instance, acting on the orders of his master is not an entry, within the meaning of the Section.
ii. The use of force is not necessary.
iii. The entry and or, remaining on the property must be unlawful.
iv. The existence of a BONA FIDE claim of right ordinarily excludes the presumption of criminal intention. However, a person may attempt to enforce his right in a wrong way, e.g. by using unnecessary force of intending to wrongfully restrain the person in possession.
v. The section covers both movable and immovable property.
vii. The section does not protect a trespasser in possession as against a party lawfully entitled to possession.
viii. The word “annoy” as used in the section should be taken to mean annoyance which would reasonably affect an ordinary person, not what would specially and exclusively annoy a particular individual.

See, also ASENDE YAV & ORS VS. THE STATE (2004) LPELR – 5364 (CA) P.8, PARAS. B – F. Further, in order to establish criminal trespass, the prosecution must prove intent to commit an offence, or to intimidate, insult or annoy the occupant, and that any claim of right was a mere cloak to cover the real intent or, at any rate, constitute no more than a subsidiary intent. See, SINVASAMY SELVANAYAGAM VS. THE KING (1951) AC 83 at 87, 88. PER CHIDI NWAOMA UWA, J.C.A.

EVIDENCE: EFFECT OF AN UNCHALLENGED EVIDENCE

The effect of an unchallenged or uncontroverted evidence has been well spelt out in the case of OSAYEMWENRE AMAYO VS. OSAYENDE ERINMWINGBOVO (2006) LPELR – 458 (SC) P. 20, PARAS. C – E, his lordship Mukhtar, JSC (as he then was) held thus:
“The position of the law as regards unchallenged evidence is as stated above, for any such evidence that is neither attacked nor discredited, and is relevant to the issues joined ought to be relied upon by a Judge. See, ADEJUMO VS. AYANTEGBE (1989) 3 NWLR (PT. 110) PAGE 417, OKEKE VS. AONDOAKA (2000) 9 NWLR (PT. 673) PAGE 501, NWABUOKU VS. OTTIH (1961) 2 NCNLR 2.”
See also, OMOREGBE VS. LAWANI (1980) LPELR – 2655 (SC) P. 16, PARAS. A – D and MTN VS. CORPORATE COMMUNICATION INVESTIMENT LTD. (2019) LPELR – 47042 (SC) PP. 53 – 54, PARAS. B – C. PER CHIDI NWAOMA UWA, J.C.A.

EVIDENCE: DUY OF THE TRIAL COURT IN RELATION TO EVIDENCE

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Between

PHILEMON GULKATHI APPELANT(S)

And

PHILIP CHAMA RESPONDENT(S)

CHIDI NWAOMA UWA, J.C.A. (Delivering The Leading Judgment): The appeal is against the judgment of the High Court of Adamawa State, presided over by M.B. Goji, J. delivered on the 6th of April, 2017, in its appellate capacity affirmed the judgment of the Upper Area Court.

The background facts are that the case which was initiated by a direct criminal complaint by the Respondent against the Appellant and one Zurga Alfred for the offences of Intentional insult, Mischief and Criminal Trespass contrary to Sections 399, 342 and 326 of the Penal Code Law respectively at the Upper Area Court, Yola.

The Respondent as the complainant at the Upper Area Court called two witnesses and also testified in proof of his case. The Appellant on his part, made a no case submission which was over ruled by the trial Upper Area Court in a Ruling delivered on 20th December, 2013, consequently, the charges of Criminal Trespass contrary to Section 342 of the Penal Code and Mischief contrary to Section 326 of the Penal Code were framed against the Appellant.

The Appellant pleaded not guilty to the two charges. The appellant and one Zurga Alfred jointly called four (4) witnesses in defence. In the trial Court’s judgment delivered on 3rd September, 2015, the Appellant and one Zurga Alfred were found guilty of the offences of Criminal, Trespass and Mischief, and were convicted accordingly, to one year imprisonment or an option of fine of N5,000.00 (Five Thousand Naira) for the offence of Criminal Trespass and the same punishment for the offence of Mischief to run concurrently. The trial Court also awarded to the Respondent the sum of N150,000.00 (One Hundred and Fifty Thousand Naira) as compensation.

The appellant who was dissatisfied with the judgment of the trial Court appealed to the High Court. In its judgment delivered on 6th April, 2017, the appeal was dismissed for lacking in merit and the judgment of the trial Court was affirmed with the consequential orders.

The appellant was also dissatisfied with the judgment of the High Court appealed to this Court. A sole issue was formulated for the determination of the appeal thus:
“WHETHER FROM THE TOTALITY OF EVIDENCE ADDUCED AT THE TRIAL COURT, THE OFFENCES OF CRIMINAL TRESPASS AND MISCHIEF HAVE BEEN PROVED AGAINST THE

APPELLANT BEYOND REASONABLE DOUBT TO WARRANT HIS CONVICTION AND AWARD OF COMPENSATION OF N150,000.00 ONLY AGAINST HIM BY THE TRIAL UPPER AREA COURT.” (DISTILLED FROM GROUNDS 1, 2, 3, 4 AND 5 OF THE NOTICE OF APPEAL).

When the appeal was argued, the Respondent did not appear in Court and was not represented by counsel. The Respondent did not also file any brief of argument and therefore had nothing to urge this Court. The appeal was heard on the Appellant’s brief of argument alone.

The learned counsel to the Appellant, J. Altajiri Esq. in arguing the appeal, adopted and relied on his brief of argument filed on 13/5/19, as his argument in this appeal in urging us to allow the appeal and set aside the judgment of the High Court and grant the reliefs sought by the appellant.

In arguing his lone issue, it was submitted that the offences of Criminal Trespass and Mischief for which the appellant was tried and convicted were not proved beyond reasonable doubt, reference was made to the evidence of the PW4 (Town Planner Livinus Udurbu), pages 56 – 58 of the printed records of appeal. It was submitted that the evidence of the PW4 was not

controverted or discredited and that the trial Court ought to have relied on it to have discharged and acquitted the appellant. It was submitted that where there is doubt as to whether a defendant has committed the offence charged, such doubt should be resolved in favour of the defendant. See, OYELEYE VS. THE STATE (2013) 38 W.R.N. PAGE 147, at 171 – 172 and SALAWU VS. THE STATE (2010) 28 W.R.N. PAGE 149 at PAGE 175. It was argued that the lower Court and the trial Court failed to consider the defence put up by the Appellant before arriving at the decision of convicting and sentencing the Appellant. It was alleged that the lower Court ignored the evidence adduced by the DW1 – DW4 in defence and relied only on the evidence adduced by the PW1 – PW3 to affirm the judgment of the trial Court with all its consequential orders. It was argued that the judgment of the lower Court which affirmed the judgment of the trial Court is perverse. We were urged to step into the shoes of the trial Court by evaluating the evidence on record, examine the Exhibits tendered and arrive at a proper and justified conclusion.

See, GAZI CONSTRUCTION CO. LTD. VS. BILL CONSTRUCTION (NIG) LTD. (2011) 15 WRN PAGE 37 at PAGES 72 – 73 and OYELEYE VS. THE STATE (2013) (supra) at PAGE 174. It was argued that it is on record that the demolition of the structure said to have been erected by the Respondent was carried out by the Adamawa State Urban Planning and Development Authority when the Respondent failed to comply with a “stop work” order, the Respondent turned around to sue the Appellant and Zurga Alfred who went to the land with a mason to measure and ascertain the cost of building a corner shop on the land said to have been allocated to Zurga Alfred by the Adamawa State Urban Planning and Development Authority, Yola. It was argued that from the evidence of the DW1 – DW4 and Exhibits D1 and D2, the offences of Criminal Trespass and Mischief were not proved against the Appellant who were also not entitled to any award of compensation.

The Respondent did not file any brief of argument and therefore had nothing to urge this Court.
The sole issue as formulated by the Appellant is on the evaluation of evidence adduced at the trial Court. The Appellant was tried and convicted for Criminal Trespass

and Mischief by the trial Upper Area Court, Yola which on appeal was affirmed by the High Court of Adamawa State. It is necessary to highlight the ingredients of the offences for which the appellant was convicted and to be able to determine if the ingredients were proved or not. It is apt at this stage to reproduce the provisions of Section 342 of the Penal Code Law on which the appellant was tried, which led to his appeals to the lower Court and this Court. It reads as follows:
“Whoever enters into or upon property in the possession of another with INTENT to commit an offence OR TO INTIMIDATE, INSULT OR ANNOY such person or with INTENT to commit an offence is said to commit CRIMINAL TRESPASS.”
The ingredients that must be proved for a conviction were well enumerated in the case of CHRISTIAN SPIESS VS. JOB ONI (2016) LPELR – 40502 (SC) at PAGES 10 – 11, PARAS. A – B, his lordship Muhammad, JSC (as he then was) held thus:
“The ingredients for proving criminal trespass are as follows:
(a) Unlawful entry into or upon a property in the possession of another, or unlawfully remaining there.
(b) An intention to commit an offence, or to intimidate, insult or annoy the person in possession of the property.”

The Appellant was convicted for the offence of mischief pursuant to Section 326 of the Criminal Code Law which provides as follows:
“Whoever, with intent to cause or knowing that he is likely to cause wrongful loss or damage to the public or to any person causes the destruction of any property or any such change in any property or in the situation thereof as destroys or diminishes its value or utility or affects it injuriously, commits mischief.”

From the evidence adduced at the trial Court, can it be said that the Respondent discharged the burden of proof beyond reasonable doubt for the alleged offences of Criminal Trespass and Mischief as

defined, against the Appellant? In the testimony of the DW4 (Livinus Udurbu) a town planner who represented the Adamawa State Urban Planning and Development, the allocating body, allocated the plot in question to the 1st Accused at the trial (Zurga Alfred), measuring 5.4 metres by 6.2 metres, the witness described the land and its boundaries and stated that it was for the construction of a Corner Shop. The allottee (Zurga Alfred) complained to the allocating body that the complainant was developing the land, that is, an encroachment on his land. An officer of the allocating body was directed to issue a Stop Work Order, the complainant failed to comply, a director in the Town Planning Office directed that the structure be demolished and the order was carried out, pages 56 – 58 of the printed records of appeal. The DW4 at page 58 of the records of appeal gave the procedure to be followed before a demolition is carried out. First, a Stop work Order will be issued within three (3) days, then a Removal Notice and thirdly a Demolition Notice will be served before the actual demolition.

From Exhibits D1 and D2, and the evidence of the DW4 it is clear that the subject matter of the case at the trial Court is a piece of land which had been allocated to Zurga Alfred for a Corner Shop. The role the Appellant played is that he accompanied the said Zurga Alfred to measure the land in view of getting the estimated cost of building the Corner Shop. The Respondent thereafter claimed the land belonged to him and started development, that is, putting up a fence on the plot, Zurga Alfred reported the construction to the allocating authority which through its officials demolished the structure. The DW2 (Zurga Alfred) gave evidence as to the allocation of the land to him and tendered his allocation letter Exhibit D2, which was not discredited by the Respondent; pages 46 – 50 of the printed records, particularly pages 47 – 48. The appellant who testified as the DW1 gave evidence along the same line as the DW2 which was also not discredited by the Respondent. From the evidence on record, the piece of land in question was allocated to Zurga Alfred by the Adamawa State Urban Planning and Development, Yola as shown by Exhibits D1 and D2. The DW4 also gave evidence that they allocated the land as Corner Shop to Zurga

Alfred thus asserting a bona fide claim of right. The Respondent did not challenge or discredit the authenticity of Exhibits D1 and D2 as well as the evidence of the DW4 a Town Planning Officer who represented the General Manager of the allocating body. The trial Court ought to have looked into the defence. The effect of an unchallenged or uncontroverted evidence has been well spelt out in the case of OSAYEMWENRE AMAYO VS. OSAYENDE ERINMWINGBOVO (2006) LPELR – 458 (SC) P. 20, PARAS. C – E, his lordship Mukhtar, JSC (as he then was) held thus:
“The position of the law as regards unchallenged evidence is as stated above, for any such evidence that is neither attacked nor discredited, and is relevant to the issues joined ought to be relied upon by a Judge. See, ADEJUMO VS. AYANTEGBE (1989) 3 NWLR (PT. 110) PAGE 417, OKEKE VS. AONDOAKA (2000) 9 NWLR (PT. 673) PAGE 501, NWABUOKU VS. OTTIH (1961) 2 NCNLR 2.”
See also, OMOREGBE VS. LAWANI (1980) LPELR – 2655 (SC) P. 16, PARAS. A – D and MTN VS. CORPORATE COMMUNICATION INVESTIMENT LTD. (2019) LPELR – 47042 (SC) PP. 53 – 54, PARAS. B – C. I hold that

the nature of the appellant’s entry into the land in question does not constitute trespass where there is a clear bona fide claim of right by the DW2 (Zurga Alfred) whom the appellant accompanied to the land, which was not controverted.

I hold that the respondent did not prove the offence of Criminal Trespass against the appellant at the trial Court, the lower Court was therefore wrong to have affirmed same.

In respect of the offence of mischief, as defined, the DW4 clearly stated that the structure that was demolished on the land was carried out by the officials of the Adamawa State Urban Planning and Development Authority for the reason that the Respondent had failed to obey the Stop Work Order on the land. The Respondent, if at all, ought to have challenged the action of the allocating body to determine whether it was rightly done within their powers or not. The conviction of the appellant by the trial Court based on the evidence of the PW1 – PW3, despite the evidence adduced by the DW1 – DW4 and the contents of Exhibits D1 and D2 is erroneous and cannot stand.

Even though a trial Court has the advantage of seeing and hearing the witnesses in the course of trial, therefore, in a better position to evaluate the evidence before the Court, where it is wrongly evaluated, the appellate Court can reverse it. See, CHIDI NOBIS-ELENDU VS. INEC & ORS (2015) 6 SCM 117 at 134, QUEEN VS. OGODO (1961) 2 SC 366, MOGAJI VS. ODOFIN (1978) 4 SC 91 and EBBA VS. OGODO (1984) 1 SC NLR 372. I hold that the respondent failed to prove the offences of criminal trespass and mischief against the appellant and the trial Court was wrong to have convicted the appellant, the lower Court was also wrong to have affirmed same. In this situation where the evaluation was improperly done, I would and hereby reverse same.

As a whole, the appeal is hereby allowed. The judgment of the lower Court affirming the decision of the trial Court is hereby set aside. In consequence, the conviction and sentence of the appellant at the trial Court in Suit No: UAC/3Y/CRF1/22/2013, delivered on 3/9/15, is also set aside. The Appellant is discharged and acquitted.
I award costs of N50,000.00 (Fifty Thousand Naira) against the Respondent.

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the judgment just delivered by my learned brother Chidi Nwaoma Uwa, JCA and I am in agreement with my learned brother that the appeal be allowed. From the defence put up by the Appellant at the trial Court that Court erred when it convicted him. The Court below was wrong when it affirmed the decision of the trial Court.

I too quash the conviction of the Appellant which was affirmed by the Court below.
I abide by all other orders in the judgment including the order as to costs.

ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.

Appearances:

Altajiri, Esq. For Appellant(s)

Respondent was served but absent For Respondent(s)