C.O.P v. UMENNADIRI & ORS
(2022)LCN/16094(CA)
In The Court Of Appeal
(AWKA JUDICIAL DIVISION)
On Wednesday, April 27, 2022
CA/AW/32C/2018
Before Our Lordships:
Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal
Frederick Oziakpono Oho Justice of the Court of Appeal
Patricia Ajuma Mahmoud Justice of the Court of Appeal
Between
COMMISSIONER OF POLICE APPELANT(S)
And
1. VICTOR ARTHUR UMENNADIRI 2. JOSEPH EZEMENARI 3. ETHELBERT EZEMENARI 4. BENEDICT UMENNADIRI RESPONDENT(S)
RATIO:
CONCURRENT FINDINGS WHEN THERE IS A SUFFICIENT EVIDENCE SHOULD NOT BE DISTURBED
I have soberly considered the judgment of the lower Court which confirmed the decision of the trial Magistrate Court discharging and acquitting the Respondents of the offences charged. This appeal presents us with an instance where there are concurrent findings by the two Courts below. The settled position of law is that such concurrent findings where there is sufficient evidence to support them should not be disturbed: DAGACI OF DERE & ORS V DAGACI OF EBIWA & ORS (2006) 7 NWLR, PT 979, 382. As Kekere-Ekun, JSC stated it aptly in the case of OLAYODE V STATE (2020) LPELR – 52519 (SC) where an appeal is against concurrent findings of fact, in order to dislodge them, the appellant must satisfy the Court that they are perverse as it is not and should not be the practice of this Court in the absence of very special circumstances to embark on a third review of the facts of a case. In the instant case, there are no facts on record or arguments proffered by the appellant in their brief to lead me to a contrary view. I am unable to find any basis in law to disturb the sound judgment of the Court below which affirmed the equally sound decision of the trial Court. PATRICIA AJUMA MAHMOUD, J.C.A.
THE PROSECUTION MUST NOT ONLY PROVE THAT THE DAMAGE WAS UNLAWFUL AND WILLFULL BUT MALICIOUS
Count III of the charge is an offence of willful damage to property contrary to Section 415. To succeed, the prosecution must not only prove that the damage was unlawful and willful but malicious. Section 13 of the Criminal Code avails a defence to the accused person if he can show that he acted in good faith under a claim of right or under a genuine mistake. The evidence of the Respondents as defendants in the trial Court which was not contradicted was that the trees cut down belong to the defendants/respondents and that the farmland belongs to their father. The defendants/respondents also maintained that they had been cultivating on the land in dispute. There was no evidence before the Court that the alleged cutting down of the trees on the farmland was done maliciously. PATRICIA AJUMA MAHMOUD, J.C.A.
PATRICIA AJUMA MAHMOUD, J.C.A. (Delivering the Leading Judgment): The four respondents were charged with a four count charge before the Chief Magistrate Court Ajalli in Aguata Magisterial District for breach of peace, forceful entry, willful damage to property and conspiracy contrary to the Criminal Code Law Cap 36, laws of Anambra State.
In proof of their case, the prosecution called three witnesses, PW1 – PW3 and tendered six documents admitted in evidence and marked as exhibits. On the part of the defendants/respondents, the 1st, 3rd and 4th respondents gave evidence on their own behalf and called no further evidence. At the conclusion of trial, the learned trial magistrate in his judgment delivered on the 25th January, 2016 discharged and acquitted the respondents of the four counts of charge.
The prosecution, unhappy with the judgment of the trial Chief Magistrate, appealed to the High Court of Anambra State sitting at Ekwulobia. In his judgment delivered on the 30th October, 2017, his Lordship, C. N. Mbonu-Nwenyi upheld the judgment of the trial Magistrate and dismissed the appeal. The appellant being still dissatisfied with the decision of the lower Court appealed to this Court in its now Further Amended Notice of Appeal filed on the 24th June, 2021 on the following eight grounds with their particulars as follows:
1. The appellate Judge erred in law when she held that for a person to be convicted for an offence under Section 120(b) of the Criminal Code, CAP 36, Vol. II, Revised Laws of Anambra State, 1991, it must be shown that the locus criminis is a dwelling house.
PARTICULARS OF ERROR
i. The locus criminis does not need to be dwelling house for a person to be convicted under Section 120(b) of the Criminal Code, CAP 36, Vol. II, Revised Laws of Anambra State, 1991.
ii. A person may be convicted under Section 120(b) of the Criminal Code 36, Vol. II, Revised Laws of Anambra State, 1991 where he does any act that causes or may cause breach of peace.
2. The appellate Judge erred in law in dismissing the prosecution’s appeal at the lower Court, whereas, the Respondents admitted that the locus criminis does not belong to them.
PARTICULARS OF ERROR
i. The respondent admitted in exhibit “B” the locus criminis does not belong to them.
ii. Aside the complainant’s family, no other person is claiming ownership of the locus criminis.
iii. The complainant’s family have been in possession of the locus criminis for many many years.
iv. The respondents cut down trees in the locus criminis 12 days after a Judgment was delivered against them in respect of the same land.
v. There is no legal evidence that the respondents have any interest in the locus criminis.
3. The appellate Judge erred in law in dismissing the prosecution’s appeal at the lower Court, whereas, there is no dispute over the ownership of the locus criminis.
PARTICULARS OF ERROR
i. The complainant’s family have been in possession of the locus criminis for many many years.
ii. There is no legal evidence of any interest of the respondents in the locus criminis.
iii. The respondents admitted that the locus criminis does not belong to them.
iv. There is no pending litigation over the ownership of the locus criminis.
4. The appellate Judge erred in law in failing to convict the 1st, 2nd and 4th respondents.
PARTICULARS OF ERROR
i. The 2nd respondent rested on the prosecution’s case.
ii. The 1st and the 4th respondents have no defence against the prosecution’s case.
iii. The 1st, 2nd and 4th respondents did not rebut the prima facie against them.
5. The appellate Judge erred in law when it failed to convict the respondents whereas, they conceded the argument in issues 1, 2 and 3 of the appellants’ brief of argument at the lower Court which were distilled from grounds 1, 2 and 3 of the Notice of Appeal at the lower Court.
PARTICULARS OF ERROR
i. The respondent did not answer to the aforementioned issues in their brief of argument.
ii. The respondents agreed that the complainant’s family is in peaceable possession of the locus criminis.
iii. The respondents conceded that the respondents (sic) proved all the ingredients of the offences to which they were charged.
6. The appellate Judge erred in law in dismissing the prosecution’s appeal at the lower Court, whereas, the prosecution proved its case beyond reasonable doubt.
PARTICULARS OF ERROR
i. All the respondents participated in the acts for which they were charged.
ii. In the suits in Exhibits “B”, “C”, “E” and “F”, various Courts decided the suits against the respondents in favour of the complainant’s family over the locus criminis.
iii. The locus criminal does not belong to the respondents.
iv. Aside the complainant’s family, no one else is laying claim to the locus criminis.
v. The complainant’s family have been exercising maximum acts of ownership and possession over the locus criminis.
7. The appellate Judge erred in law and facts in the following passage of the judgment appealed against:
“I am unable to find the evidence in the proceedings before the Magistrate (sic) Court that the cutting down of trees were done maliciously …. The exhibits tendered by the prosecution also did not suggest that their possession of the land in dispute were peaceable there. I am unable to find the basis upon which to hold that there was conspiracy by the respondents to enter into the land which is in peaceable possession of the respondent (sic) neither is there any evidence to suggest that the respondent maliciously damaged the economic trees of the appellants or that respondents conspired to forcibly enter into the land in peaceable possession of the appellant”.
PARTICULARS OF ERROR
i. There is abundant evidence to prove the offence to which the respondents were charged.
ii. The trees on the locus criminis do not belong to the respondents.
iii. The 1st respondent admitted discussing the incident at the locus criminis with the other respondents.
iv. The complainant’s family has been in peaceable possession of the locus criminis at all times material to his case.
v. The 2nd respondent admitted the charge against him.
vi. The respondents entered into the locus criminis with weapons and equipment 12 days after the judgment in Exhibit “E” was delivered against them over the same land.
vii. The respondents admitted in Exhibit “B” that the locus criminis does not belong to them.
viii. The complainant’s family has been in possession of the locus criminis for many years.
ix. There is no pending litigation over the ownership of the locus criminis.
8. The judgment is unreasonable, or cannot be supported having regard to the evidence. Whereof the appellant sought an order of this Court allowing the appeal, setting aside the judgment of the lower Court and convicting the respondents of the offences charged.
The Appellant prosecuted this appeal on their Further Amended Brief filed on the 24th June, 2021. In it, the appellant distilled seven issues for determination of the Court thus:
1. Whether the lower Court was not wrong when it held that for a person to be convicted for an offence under Section 120(b) of the Criminal Code Law, Cap C 36, Vol. II, Revised Laws of Anambra State, 1991, it must be shown that the locus criminis is a dwelling house?
2. Whether the lower Court was not wrong in dismissing the prosecution’s appeal whereas the respondents admitted the locus criminis does not belong to them?
3. Whether the lower Court was not wrong in dismissing the prosecution’s appeal whereas there is no dispute over the ownership of the locus criminis?
4. Was the lower Court not wrong in failing to convict the 1st, 2nd and 4th respondents for the offences for which they were charged?
5. Whether the lower Court was not wrong in failing to convict the respondents whereas the respondents conceded to the argument in issues 1, 2 and 3 of the appellant’s brief of argument at the lower Court?
6. Was the lower Court not wrong in discharging and acquitting the respondents whereas the prosecution proved its case against them beyond reasonable doubt?
7. Whether the lower Court was not wrong in his re-evaluation of evidence in this case and whether the judgment of the lower Court is not against evidence?
The Respondents on their part filed their Further Amended Brief on the 28th June, 2021. They submitted the following three issues for the resolution of the Court:
a. WHETHER THE LOWER COURT WAS RIGHT IN DISMISSING THE APPEAL HAVING FOUND THAT THE APPELLANT FAILED TO PROVE ITS CASE AGAINST THE RESPONDENTS BEYOND REASONABLE DOUBT? (GROUNDS 5, 6, 7, & 8)
b. WHETHER THE LOWER COURT WAS RIGHT WHEN IT HELD THAT “FOR A PERSON TO BE CONVICTED FOR AN OFFENCE UNDER SECTION 120 (B) OF THE CRIMINAL CODE LAW, CAP C. 36, VOL II REVISED LAWS OF ANAMBRA STATE 1991, IT MUST BE SHOWN THAT THE LOCUS CRIMINIS IS A DWELLING HOUSE”? (GROUND 1)
c. WHETHER THE LOWER COURT IS BOUND TO CONVICT THE RESPONDENTS FOR THE OFFENCES WITHOUT CONSIDERING THE DEFENCE OF BONAFIDE CLAIM OF RIGHT RAISED BY THE RESPONDENTS? (GROUNDS 2, 3 & 4)
I do not find it necessary to summarize the submissions of both counsel in this matter as they both failed to comply with ORDER 19 RULE 3 (4) of the Rules of Court 2021 which require parties to give a numbered summary of the arguments in their brief. This summary is helpful in giving a bird’s eye view of the case of the parties. It also saves ample judicial time by freeing the Court of the burden of having to summarize the briefs.
Be that as it may, I will resolve this appeal on the issues formulated by the Respondents. They are more concise and capture all the seven issues raised by the Appellant. The first issue as raised interrogates the lower Court’s decision to uphold the decision of the trial Court discharging and acquitting the respondents. It also captures issues (2) and (3) as raised. This appeal can and will be effectively determined on the first issue as raised by the Respondents. The contention of the respondent in respect of the first head of charge is that title to the subject property was not determined in favour of the nominal complainant. That indeed, the families of the nominal complainant and the Respondents have been contesting title over the land since 1974. That therefore the issue of peaceful possession of the land/property by the nominal complainant does not arise. In other words, the contention of the Respondents is that the failure of the prosecution to prove title to the property is fatal and the trial Court was right in discharging and acquitting the Respondents in the circumstances.
The Appellants on their part contended that since the Respondents’ claim over the locus criminis was dismissed on their own admission the question of proving title to the property by the Appellant is of no moment. To better appreciate this issue (1) and its resolution, it is perhaps pertinent to reproduce the four count charge under which the Respondents were tried in the Magistrate Court:
COUNT 1: That you Victor Arthur Umennadiri (m), Joseph Ezemenari (m), Ethelbert Ezemenari (m), Benedict Umennadiri (m), all of Umuakpalasi – Awalasi Village, Uga and four others now at large, on or about 27th day of April, 2011, at Uga, in the Aguata Magisterial District, did conspire amongst yourselves to commit an offence in the State which is not a felony, to wit, breach of peace by forcibly entering on land in the peaceable possession of Felix Opkala Uzuegbu ‘m’ and you thereby committed an offence punishable under Section 496 (a) of the Criminal Code Law Cap 36 Vol II Revised Laws of Anambra State Nigeria 1991 as amended.
COUNT II: That you, Victor Arthur Umennadiri ‘m’, Joseph Ezemenari ‘m’, Ethelbert Ezemenari ‘m’, Benedict Umennadiri ‘m’ all of Umuakpalasi –Awalasi Village, Uga and four others now at large, on the same date, at same place and Magisterial District aforementioned being armed with matchets and chain-saw forcibly entered on land which is in peaceable possession of Felix Okpala Uzuegbu and threatened to kill him and you thereby committed a breach of the peace punishable under Section 120 (b) of the Criminal Code Law Cap 36 Vol. II Revised Laws of Anambra State of Nigeria 1991 as amended.
COUNT III: That you Victor Arthur Umennadiri ‘m’, Joseph Ezemenari ‘m’, Ethelbert Ezemenari ‘m’, Bendict Umennadiri ‘m’ all of the aforementioned address and four others now at large, on the same date, at the same Magisterial District aforementioned, did conspire amongst yourselves to commit an offence in the state which is not a felony to wit, willful damage to property belonging to Felix Okpala Uzuegbu ‘m’ and you thereby committed an offence punishable under Section 496 (a) of the CC Law Cap 36 Vol.II Revised laws of Anambra State of Nigeria.
COUNT IV: That you, Victor Arthur Umennadiri ‘m’, Joseph Ezemenari ‘m’, Ethelbert Ezemenari ‘m’, Benedict Ezemenari ‘m’ all of the aforementioned address and four others now at large, on the same date, at the same Magisterial District aforementioned, did willfully and unlawfully cut down and damage with chain-saw and matchets Ukpaka tree, Breadfruit tree, Pear tree, and Palm tree, all economic trees valued at N500,000.00 belonging to Felix Okpala Uzuegbu ‘m’ and you thereby committed an offence punishable under Section 415 (1) of the CC Law, Cap 36 Vol. II, Revised Laws of Anambra State of Nigeria 1991 as amended.”
In counts I and IV, the respondents were charged with conspiracy under Section 496 (a) of the Criminal Code of the Laws of Anambra State, 1991. His Lordship of the lower Court properly analyzed the law on conspiracy and reviewed the evidence on record and came to the conclusion rightly in my view that the offence of conspiracy was not proved beyond reasonable doubt against the respondents.
In respect of count II of the charge, to succeed the prosecution must show that the defendants intending to alarm the respondents in a dwelling house, discharged firearms or committed any other breach of peace. The trial Judge found again rightly in my view that to succeed the prosecution must show that the locus criminis is a dwelling house and the defendants intended to alarm the nominal complainants therein. The prosecution tendered Exhibits J – T which show that the locus criminis was a farmland and not a dwelling house. The lower Court found that there was no evidence before the trial Court to show that the scene of crime was a dwelling house.
Count III of the charge is an offence of willful damage to property contrary to Section 415. To succeed, the prosecution must not only prove that the damage was unlawful and willful but malicious. Section 13 of the Criminal Code avails a defence to the accused person if he can show that he acted in good faith under a claim of right or under a genuine mistake. The evidence of the Respondents as defendants in the trial Court which was not contradicted was that the trees cut down belong to the defendants/respondents and that the farmland belongs to their father. The defendants/respondents also maintained that they had been cultivating on the land in dispute. There was no evidence before the Court that the alleged cutting down of the trees on the farmland was done maliciously.
In respect of count IV, there was the nagging question of title to the property. The contention was whether the trial Magistrate was right to have considered the issue of title to the land same not being an ingredient of the offences charged. While agreeing with his Lordship in the lower Court that title is not part of the ingredients of malicious damage or any of the other offences charged; however, the issue of title is ancillary to the offences charged. For if the respondents had title, they could not be properly charged with malicious damage to their own property. And if the nominal complainant had title then the defence of bona fide claim of right becomes unavailable to the respondents. It was the prosecution that tendered Exhibits B, C, D, E and F in the course of the trial to perhaps prove the fact of their being in peaceful possession of the subject property. These exhibits represent the various legal battles embarked on by the two sides over the land in dispute. These exhibits did not determine the issue of title to the property. The learned trial Magistrate in my view was well aware of the legal position that he could not determine title to the property otherwise he would not have counseled as he did at page 161 of the record thus:
“Parties are advised to go to Court for a declaration of title to the land.” This in my view, does not amount to making title an ingredient of any of the offences charged. Rather and like the lower Court rightly found, the trial magistrate rightly drew inference and made findings on the exhibits tendered.
I have soberly considered the judgment of the lower Court which confirmed the decision of the trial Magistrate Court discharging and acquitting the Respondents of the offences charged. This appeal presents us with an instance where there are concurrent findings by the two Courts below. The settled position of law is that such concurrent findings where there is sufficient evidence to support them should not be disturbed: DAGACI OF DERE & ORS V DAGACI OF EBIWA & ORS (2006) 7 NWLR, PT 979, 382. As Kekere-Ekun, JSC stated it aptly in the case of OLAYODE V STATE (2020) LPELR – 52519 (SC) where an appeal is against concurrent findings of fact, in order to dislodge them, the appellant must satisfy the Court that they are perverse as it is not and should not be the practice of this Court in the absence of very special circumstances to embark on a third review of the facts of a case. In the instant case, there are no facts on record or arguments proffered by the appellant in their brief to lead me to a contrary view. I am unable to find any basis in law to disturb the sound judgment of the Court below which affirmed the equally sound decision of the trial Court.
Consequently, I dismiss this appeal for lacking in merit.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I have had the advantage of reading in draft the judgment just rendered by my learned brother, P. A. MAHMOUD, JCA and I agree with the reasoning and conclusion which I adopt as mine.
I also affirm the judgment of the High Court of Anambra State Ekwulobia Division sitting on appeal in dismissing this appeal for lacking in merit.
FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the judgment just delivered by my learned brother, PATRICIA AJUMA MAHMOUD, JCA and I am in agreement with the reasoning and conclusions in dismissing this appeal as unmeritorious. I subscribe to the consequential orders made thereto in the lead judgment.
Appearances:
MR. N.F.P. EGONU, For Appellant(s)
MR. IFEANYI EZEUKO, with him, MRS. A. M. MBAH, For Respondent(s)
