COP v. OGUNMUYITE (2020)

COP v. OGUNMUYITE

(2020)LCN/14059(CA)

In The Court Of Appeal

(ADO-EKITI JUDICIAL DIVISION)

On Thursday, March 19, 2020

CA/EK/31C/2019

Before Our Lordships:

Fatima Omoro Akinbami Justice of the Court of Appeal

Paul Obi Elechi Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Between

COMMISSIONER OF POLICE APPELANT(S)

And

TOYIN OGUNMUYITE RESPONDENT(S)

RATIO

WHETHER OR NOT LEAVE MUST BE OBTAINED FOR AN AGGRIEVED PARTY TO APPEAL WHERE THE JUDGEMENT OF THE HIGH COURT WAS IN ITS APPELLATE JURISDICTION

It is trite and correct law that leave must be obtained for an aggrieved party to appeal where the judgment of the High Court was in its appellate jurisdiction and does not fall within the cases provided in Section 241 of the 1999 Constitution. PER WILLIAMS-DAWODU, J.C.A.

WHETHER OR NOT THE APPELLATE COURT CAN EXTEND THE TIME WITHIN WHICH TO APPEAL

One is fortified herein by the position of the apex Court in pursuit of doing substantial justice in the case of BOWAJE V. ADEDIWURA (1976) LPELR-795(SC). The apex Court stated thus in a situation where leave to appeal was granted outside the stipulated time for doing so. I take the liberty to quote extensively for fuller appreciation of what transpired therein as follows:“This Court would readily exercise its discretion to extend the periods prescribed for doing an act if it is shown to the satisfaction of the Court that the failure by a party to do the act within the period prescribed was caused by the negligence or inadvertence of his counsel. (See – T. A. Doherty & Another V. R. A. Doherty 1964 1 ALL NLR 299 and G.B.A. Akinyede V. The Appraiser 1971 1 All N.R. 162. PER WILLIAMS-DAWODU, J.C.A.

THE PRIMARY DUTY OF THE TRIAL COURT

It is elementary that proof of a matter or offence in the administration of our criminal justice is beyond reasonable doubt. It is equally elementary principle of law that the function of evaluation of evidence and ascription of probative value is essentially that of the trial Court which is its primary function and for the instant appeal, the trial Chief Magistrate Court. In other words, issues of fact are pre-eminently those of the Court of trial. The presumption is that, the decision of the trial Court is correct and must be disproved by the Appellant before an appellate Court can interfere. See the cases of DANIEL OGBAJE V. ABUJA INV. & PROPERTY DEV. CO. LTD. 2007 LPELR-CA/A/173/2005, NKEBISI V. THE STATE 2010 LPELR-SC 395/2002, WOLUCHEM V. GUDI 1981 5SC 291, ENANG V. ADU 1981 11-12 SC 25, IGAGO V. THE STATE 1999 12 SCNJ 140, GABRIEL OKUNZUA V. MRS E. B. AMOSU & ANOR 1992 LPELR SC178/1990 and WILLIAMS V. JOHNSON 1937 2 WACA 253. PER WILLIAMS-DAWODU, J.C.A.

WHETHER OR NOT THE APPEAL COURT CAN INTERFERE WITH THE FINDINGS OF FACT OF THE TRIAL COURT

As already stated, the primary duty of a trial Court is to evaluate evidence and ascribe probative value to it and not the function of an appellate Court to disturb the findings of fact of the trial Court, which saw and heard the witnesses testify, believed one side and disbelieved the other. See further the cases of BALOGUN V. AKANJI 1988 1 NWLR 301 SC, KODILINYE V. MBANEFO ODU 1935 2 WACA 365 and FATOYINBO & ORS V. WILLIAMS alias SANNI & ORS 1956 1 FSC 87. Where the trial Court satisfactorily performs its duty an appellate Court will not interfere. See the cases of WOLUCHEM V. GUDI supra, ENANG V. ADU supra and IGAGO V. THE STATE 1999 12 SCNJ 140. PER WILLIAMS-DAWODU, J.C.A.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the Judgment of the Ise Ekiti High Court, delivered on August 6th 2018, by Hon. Justice A. Adesodun wherein the Court allowed the appeal, set aside the judgment of the Chief Magistrate and discharged and acquitted the Respondent (the Appellant at the Court below). See page 84 of the printed Record before this Court.

The facts that culminated into the instant appeal started at the Chief Magistrate Grade 1 Court before, his Worship A. O. Adeosun. The Appellant (the Complainant at the Chief Magistrate Court), filed against the Respondent the following charges:
– Entry into the land of one Olomi Arogundade contrary to and punishable under Section 81 of the Criminal Code Cap 16 Vol. 1 Laws of Ekiti State of Nigeria 2012.
– Stealing of oranges valued (sic) the sum of N500, 000. 00 (Five hundred thousand naira) Property of one Olomi Arogundade contrary to Section 383 and punishable under Section 390 (9) of the Criminal Code Cap 16 Vol. 1 Laws of Ekiti State of Nigeria 2012.
– Resisting police arrest contrary to and punishable under

Section 197 of the Criminal Code Cap 16 Vol. 1 Laws of Ekiti State of Nigeria 2012.
See pages 32-33 of the printed Record before this Court.

The matter went to trial with four (4) and six (6) witnesses for the Appellant and Respondent respectively on Counts 1 and 2 as no case submission was made in respect of Count 3 by the Respondent and was upheld. The trial Chief Magistrate Court found the Respondent guilty and convicted him for the offences of forcible entering and stealing. As a first offender he was given option of fine and the sentence to run thus:
Count I- a fine of N10,000.00 or in lieu 6 months imprisonment with hard labour.
Count II- a fine of N10,000.00 or in lieu 3 years imprisonment with hard labour. Fines are cumulative while prison terms are concurrent.
See page 66 of the Record.

The Respondent, following the decision of the trial Court, appealed and as afore said, the Court below found in his favour and set aside the decision of the trial Court. Being dissatisfied, the Appellant herein on February 13th 2019 filed its Notice of Appeal as amended on June 3rd 2019, which was deemed as properly filed and served on June 24th

2019 together with ten (10) grounds of appeal.

RELIEFS BEING SOUGHT
– To allow the appeal and set aside the decision of the lower Court.
– Uphold the decision of the learned Chief Magistrate in convicting and sentencing the appellant/Respondent.
– In the alternative order a retrial.

Parties in compliance with the Rules of this Court filed and exchanged briefs of argument. The Appellant’s brief dated and filed May 31st 2019 was deemed as properly filed and served on June 24th 2019 and was settled by F. D. Falade Esq. whilst the Respondent’s dated and filed September 17th 2019 was equally deemed as properly filed and served on September 18th 2019 and settled by Magnus S. Ejelonu Esq. The Appellant on October 2nd 2019, filed a Reply to the Respondent’s brief.

NOTICE OF PRELIMINARY OBJECTION BY THE RESPONDENT
The Respondent raised a preliminary objection herein as contained on page 3 of his brief on the propriety or otherwise of the leave granted by the Court below to the Appellant to file this appeal as the said leave was granted on February 4th 2019 and the Notice of Appeal was filed on February 13th 2019.

Mr. M. Ejelonu Esq. learned Counsel for the Respondent argued that, the leave to appeal to this Court granted to the Appellant by the Court below on February 4th 2019, six (6) months after its judgment on August 6th 2018 was without jurisdiction as it violates Section 25 of the Court of Appeal Act which provides only ninety (90) days. In support, he cited the cases of DICKSON OGUNSEINDE VIRYA FARMS LTD. V. SOCIETE GENERALE BANK LTD. & ORS 2018 LPELR- 43710 SC, OWONIBOYS TECHNICAL SERVICES LTD. V. JOHN HOLT LTD. 1991 LPELR-2855 SC, BOWAJE V. ADEDIWURA 1976 6 SC 143 and LAMAI V. ORBIH 1980 5-7 SC 28 among others. Therefore, the Notice of Appeal filed on February 13th 2019 was without basis, a nullity and cited the cases of SALEH V. MONGUNO & ORS 2006 LPELR-2992 SC, DAWODU V. OLOGUNDUDU 1986 4 NWLR PT. 33 104 and U.A.C. LTD. V. MACFOY 1962 A.C. He submitted that, it was irrelevant that the Respondent was represented at the hearing of the Appellant’s application for leave, as parties cannot confer jurisdiction on the Court by their consent. In support, he cited the cases of BISONG V. UNICAL 2016 LPELR-41246 CA and FAM-LAB NIG LTD & ANOR V. JAHMARCO NIG. LTD. & ANOR

2018 LPELR-44730 CA amongst others. Consequently, he urged that, the Notice of Appeal filed herein be struck out.

The response of the Appellant to the Respondent’s objection is as contained in the Appellant’s Reply brief dated October 1st 2019 and filed October 2nd 2019. Mr. F. Falade Esq. the learned Counsel for the Appellant asserted that, the application for leave to appeal was filed within time, the judgment was delivered on August 6th 2018 and the said application was October 2nd 2018. It was not assigned for hearing until January 15th 2019, was heard and granted February 4th 2019 without any objection from the Respondent’s Counsel who was present in Court. He argued that, fixing applications for hearing was not in his hand and if it was late could not be visited on the Appellant and cited the case of CHUKWUMA OGWE & ANOR V. INSPECTOR GENERAL OF POLICE & ORS LPELR 2015 SC 214/2013 and MAITUNMBI V. BARAYA 2017 2 NWLR PT. 1550 347. That, the application needed to be heard at the Court below before the Appellant could proceed to the appellate Court as filing similar applications in two Courts would have

amounted to abuse of Court process and cited the case of ALIYU V. INTERCONTINENTAL BANK PLC. 2013 ALL FWLR PT. 702 P. 1810. Further that, the order of the Court stands as there is no appeal in that regard, save, the instant objection which is incapable of invalidating the order. That, the Court rightly exercised its discretion in the grant of the application and the Appellant had no fault in the delay and he cited the cases of UNILORIN V. OBAYAN 2018 13 NWLR PT. 1635 72 and CBN V. SHIPPING COMPANY SARA B.V 2015 1 NWLR PT. 1469 1. He contended that, the error by the Court below had been ratified by the leave of this Court to amend the Appellant’s Notice of Appeal as well as the deeming order. He urged that the objection be discountenanced as justice cannot be sacrificed on the altar of technicality.

RESOLUTION BY THE COURT
After very careful consideration of the submissions by both sides, for and against the preliminary objection raised by the Respondent, I proceed thus:
It is trite and correct law that leave must be obtained for an aggrieved party to appeal where the judgment of the High Court was in its appellate jurisdiction and does

not fall within the cases provided in Section 241 of the 1999 Constitution. The Appellant’s matter rightly fell within the provision of Section 242 of the 1999 Constitution of the Federal Republic of Nigeria to the effect that, there was need for the Appellant to apply for leave to appeal the said judgment not being at first instance. As already mentioned, the decision of the Court below that is being appealed against was delivered on August 6th 2018. The Appellant sought leave to appeal with Motion on Notice filed October 2nd 2018 and dated September 28th 2018 within the stipulated time. The said application was eventually heard by the Court below on February 4th 2019 and leave was granted same day. Consequent thereto, on February 13th 2019, the Appellant filed Notice of Appeal dated February 8th 2019. See pages 85 to 95 of the Record.
The objection raised herein by the Respondent in the main and as aforestated is that, the said leave to appeal to this Court granted to the Appellant by the Court below, on February 4th 2019, six (6) months after its judgment on August 6th 2018, was without jurisdiction. That, it violates Section 25 of the Court of Appeal Act

which, provides only ninety (90) days for such. Therefore, the Appellant’s Notice of Appeal should be struck out as incompetent. In response thereto, the Appellant’s Counsel argued that, the Appellant had no fault in the delay, acted within time, was not responsible for fixing matters for hearing at the Court below and that it was necessary that the Appellant’s application be first heard and determined one way or the other before any further step was taken.
Having very carefully considered the foregoing, one is of the informed view and humbly, that, this objection should not be sustained in the interest of doing substantial justice and rather the substantive appeal be heard and determined once and for all between the parties at this stage. One is fortified herein by the position of the apex Court in pursuit of doing substantial justice in the case of BOWAJE V. ADEDIWURA (1976) LPELR-795(SC). The apex Court stated thus in a situation where leave to appeal was granted outside the stipulated time for doing so. I take the liberty to quote extensively for fuller appreciation of what transpired therein as follows:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“This Court would readily exercise its discretion to extend the periods prescribed for doing an act if it is shown to the satisfaction of the Court that the failure by a party to do the act within the period prescribed was caused by the negligence or inadvertence of his counsel. (See – T. A. Doherty & Another V. R. A. Doherty 1964 1 ALL NLR 299 and G.B.A. Akinyede V. The Appraiser 1971 1 All N.R. 162.
In the case in hand, although it may be said that the Appellant/Plaintiff’s counsel in the Court below must have contributed to the delay in that he did not file the application for leave to appeal in the Court below until the 15th May, 1973, i.e. 17 days before the time for filing the notice and grounds of appeal expired, we think the effective cause of the delay may be attributed to the Court below in that it granted leave on 4th June, 1973, which was two days after the time for filing the notice and grounds of appeal had expired. Under that circumstance, even if Mr. Adeyemi had filed the notice and grounds of appeal immediately thereafter, as he was instructed to do by the counsel for the Appellant/Plaintiff, the Appellant/Plaintiff would

have been out of time. For the foregoing reasons, we are of the view that the application should be granted and it is hereby granted. In view of the fact that the Western State Court of Appeal has ceased to exist, we think it is in the interest of justice to make an order that the notice and grounds of appeal filed in that Court on the 5th of March, 1974, should be deemed to have been duly filed. We accordingly order as follows: –
(a) that the Appellant/Plaintiff be and is hereby granted extension of time until 5th March, 1974, within which to file his notice and grounds of appeal;
(b) that the notice and grounds of appeal dated 5th June, 1973, and filed in the former Western State Court of Appeal on 5th March, 1974, shall be deemed to have been duly filed;
(c) that the Appellant/Plaintiff be and is hereby granted leave to argue the additional grounds dated 2nd April, 1976, filed with the papers in support of this application.”
Further, the apex Court took the same position in the case of COOPERATIVE & COMMERCIAL BANK NIG. PLC. V. A-G ANAMBRA STATE & ANOR. 1992 LPELR 875 SC, where an application was not fixed for

hearing on time thus:
“It will be contrary to all principles to allow litigants to suffer for the mistake of the Court registry. The registry as well as the parties are duty bound to observe the rules of Court.”
Given the foregoing position held by the apex Court, one therefore holds that this objection be dismissed in the interest of doing substantial justice and this appeal therefore be determined on its merit once and for all time sake.

THE MAIN APPEAL
The parties, as expected by the Rules of this Court, filed and exchanged their briefs of argument. The Appellant’s brief was dated, May 31st 2019, filed on same date, settled by F. D. Falade Esq. was deemed properly filed and served on June 24th 2019 and the Respondent’s which was settled by Magnus S. Ejelonu Esq. was dated and filed on September 17th 2019 and deemed properly filed and served on September 18th 2019. As afore stated, the Appellant’s Reply brief was filed October 2nd 2019.

ISSUES FORMULATED BY PARTIES FOR DETERMINATION
The Appellant formulated two (2) as follows:
i. Whether in the circumstance the lower Court was right to re-evaluate the evidence taken

by the trial Chief Magistrate and whether same was properly reevaluated (Grounds 1, 2, 3 and 5).
ii. Whether the lower Court was right to review the findings of the trial Chief Magistrate and thereby set aside the Judgment (Grounds 4, 6, 7, 8, 9 and 10).

The Respondent adopted Issues 1 and 2 as submitted by the Appellant.

I have very carefully considered the said Issues and having very carefully so done, one is of the humble view that a singular issue should suffice for a just and fair determination of this appeal thus:
Whether or not the Court below was right when it set aside the judgment of the trial Chief Magistrate Court.

SUBMISSIONS MADE ON BEHALF OF THE PARTIES
APPELLANT’S SUBMISSION
The learned Counsel for the Appellant submitted that, the Court below was wrong not being the trial Judge to have re- evaluated the evidence before the Chief Magistrate and therefore had occasioned miscarriage of justice and cited in support the cases ofEDET OKON IKO V. THE STATE 2001 FWLR PT. 68 1161, MICHAEL V. STATE 2008 13 NWLR PT. 1104 361 and OGUNDALU V. MACJOB 2015 EJSC VOL. 17 146 SC. He argued that, the issue of ownership of the

land had been determined in Exhibit A, the judgment by the Customary Court which remains valid until set aside and cited the case of OJIAKO AND ORS V. OGUEZE & ORS 1962 1 ALL NLR P. 59. That, the issue to be determined was that of forcible entry and stealing of the oranges planted on the land. Further that, the Court indirectly was inviting parties to re- litigate the issue of the land decided in 2006 and the trial Court was therefore right to discountenance the evidence of DW3 and DW5. He argued that, the evidence of DW3 and Dw5 was that they both did not know who planted the oranges but were told by the Respondent’s father that he owned the farm. That was hearsay and inadmissible and oral evidence could not be used to vary the content of the judgment, Exhibit A.

He submitted that, the position of the Court below was based on technicality as opposed to substantial justice on the issue of whether or not the farm in issue was Adu farm or Edu farm, though the charge sheet stated Adu farm. That, given Exhibit A and the evidence of PW1, there was no presumption by the trial Court. In support, he cited the cases of JIMOH ATANDA V. MEMUDU ILIASU 2013

18 WRN P. 1 and MAKANJUOLA V. CHIEF OYELAKIN BALOGUN 1989 5 SCNJ 42. Further that, the defect in the charge sheet was cured by evidence and cited SEIDU AMODU V. IGP 21 NLR P. 39. Therefore, he submitted that, the issue of the ownership of the oranges was resolved on the principle of quid quid plantatur solo solo cedit as the orange farmland was granted to the Appellant’s father in Exhibit A. He cited in support the case of ONUWAJE V. OGBEDE 1991 3 NWLR P. 147. The learned Counsel argued that, there was no basis for the setting aside of the decision of the trial Court by the Court below which has led to miscarriage of justice. He submitted that, the appeal before the Court below was a criminal appeal and not the issue of ownership of land which was settled in Exhibit A. In conclusion, he urged that, the appeal be allowed and the judgment of the Court below set aside.

The learned Counsel for the Respondent submitted that, the trial Court was wrong to have not considered the evidence of DW3, DW5 and PW3 holistically and cited the case of BAKO & ANOR V. AUDU & ANOR 2018 LPELR-44394 CA P. 33. That it would have a reached a different decision if

it did and that, an appellate Court is entitled to set aside such findings of fact where there are obvious errors on the appraisal of the evidence and cited the case of BORISHADE V. F.R.N. 2012 18 NWLR PT. 1332 347 in support. Therefore, the Court below was right to have set aside the decision of the trial Court to cure the miscarriage and cited in support the cases of KOWA V. MUSA 2006 5 NWLR PT. 972 1 and AL-HASSANI V. STATE 2011 3 NWLR PT. 1234 254. He argued that, the failure of the prosecution for not calling the Appellant’s father as a witness was fatal to their case that, Exhibit A was not in respect of the land where the oranges were planted and the Appellant had failed to show the particular land. He contended that, the trial Court could not have validly presumed that the two names were the same by relying on Section 145 of the Evidence Act, 2011.

The learned Counsel submitted that, the appellate Court can disturb the findings of the trial Court where the trial Court failed to evaluate the evidence before it and where such findings are found to be wrong and perverse as those of the trial Court and in support cited the cases of UZOKA V. FRN

2009 LPELR-4950 CA, OGBUOKWELU & ORS V. UMEANAFUNKWA & ANOR. 1994 LPELR-2296 SC, NAFIU RABIU V. THE STATE 1980 8-11 SC 130, R. V. OGODO 1961 ALL NLR 700 and AGBEYEGBE V. IGP 1955 15 WACA 37 amongst others. He argued further that, the prosecution failed to prove the offences charged in accordance with Section 81 of the Criminal Code beyond reasonable doubt against the Respondent. He submitted that, the law cannot prosecute and convict a person for dealing with what belongs to him as in the case of the Respondent who owned the land upon which the oranges were and that the Respondent could not convert what belonged to him. In conclusion, he urged this Court to dismiss the appeal as the decision of the Court below was right.

THE COURT
I have painstakingly perused the printed Record and all other processes before this Court in respect of this appeal and having so very carefully done, I proceed thus in the consideration of the sole Issue as adopted:
SOLE ISSUE
Whether or not the Court below was right when it set aside the judgment of the trial Chief Magistrate Court.

It is elementary that proof of a matter or offence in the

administration of our criminal justice is beyond reasonable doubt.

It is equally elementary principle of law that the function of evaluation of evidence and ascription of probative value is essentially that of the trial Court which is its primary function and for the instant appeal, the trial Chief Magistrate Court. In other words, issues of fact are pre-eminently those of the Court of trial. The presumption is that, the decision of the trial Court is correct and must be disproved by the Appellant before an appellate Court can interfere. See the cases of DANIEL OGBAJE V. ABUJA INV. & PROPERTY DEV. CO. LTD. 2007 LPELR-CA/A/173/2005, NKEBISI V. THE STATE 2010 LPELR-SC 395/2002, WOLUCHEM V. GUDI 1981 5SC 291, ENANG V. ADU 1981 11-12 SC 25, IGAGO V. THE STATE 1999 12 SCNJ 140, GABRIEL OKUNZUA V. MRS E. B. AMOSU & ANOR 1992 LPELR SC178/1990 and WILLIAMS V. JOHNSON 1937 2 WACA 253.
This appeal came about when the trial Chief Magistrate Court convicted and sentenced the Respondent for the offence of stealing and unlawful entry unto the Appellant’s land. The Court below in its wisdom set aside the judgment of the trial Court and found in favour of

the Respondent. The heart of the finding of the Court below was that, the prosecution failed to prove its case against the Respondent as it failed to properly evaluate the evidence before it generally and particularly the testimonies of DW3, DW5 and PW3 and therefore there was miscarriage of justice. That, if the trial Court did proper evaluation of the evidence, it would have come to a different conclusion. The Court stated on page 80 of the Record thus:
“I have looked in vain in the judgment of the learned trial Chief Magistrate for any other place he has referred to the evidence of DW3 and DW5…
Where the Court fails in its duty to evaluate the evidence placed before it the judgment based on such unevaluated evidence would appear whimsical and without any foundation. It would be unfair to the parties…
The question then is would the trial Chief Magistrate have come to a different conclusion if he had taken the pains to evaluate the evidence of DW3 and DW5?”
The Court found thus on page 83 of the Record:
“If the learned trial Chief Magistrate had given due consideration to the evidence of DW3 and DW5 vis

a vis the evidence of PW3 he would have realized that there is doubt as to who owned the orange farm which doubt he should have resolved in favour of the Appellant.”
Further and related to the issue of identity and ownership of the farmland upon which the orange trees were, the Court found as follows further on page 83 of the Record:
“The charge sheet talks of Adu Farmland which is to mind different from the one granted by the Customary Court. No application was made to correct the name so the learned trial Chief Magistrate was therefore wrong when he stated at page 43 of the record of appeal that Exhibit A refers to the land on which the disputed oranges were planted as Edu farm land. This is speculating. The Court has no business to speculate on matter brought before the Court.”
In the final analysis, the Court concluded thus on pages 83 and 84 of the Record:
“If the Appellant has been going to the orange farm land to tend through his labourer DW5 and had been selling the oranges to PW3 amongst other (sic) the necessary inference that can be made in the circumstance is that the appellant is the owner

of the oranges harvested or sold by him…
In view of the above, the prosecution cannot be said to have established the offences charged in Court against the Appellant.”
A pertinent question in the determination of this appeal is whether or not the Court below was right to have set aside the decision of the trial Chief Magistrate Court?
It found ownership in the Respondent and therefore held that the offence of stealing was not proved against the Respondent. In my view and humbly, to be able to come to a just and fair conclusion herein, and having gone through the judgment of the Court below, one shall pursue the law which gives an appellate Court jurisdiction to look at the evidence on record to see whether they justify the conclusions of the learned trial Court.
As already stated, the primary duty of a trial Court is to evaluate evidence and ascribe probative value to it and not the function of an appellate Court to disturb the findings of fact of the trial Court, which saw and heard the witnesses testify, believed one side and disbelieved the other. See further the cases of BALOGUN V. AKANJI 1988 1 NWLR 301 SC, KODILINYE V. MBANEFO ODU

1935 2 WACA 365 and FATOYINBO & ORS V. WILLIAMS alias SANNI & ORS 1956 1 FSC 87. Where the trial Court satisfactorily performs its duty an appellate Court will not interfere. See the cases of WOLUCHEM V. GUDI supra, ENANG V. ADU supra and IGAGO V. THE STATE 1999 12 SCNJ 140.
The trial Court on pages 56-57 of the Record found as follows that:
i. Suberu Arogundade the Appellant’s father owned the farmland at Edu farm on which the Appellant planted oranges.
ii. The orange seedlings were given to the Appellant by one Sunday Jeje who assisted the Appellant to plant them.
iii. There was dispute on the land when the Respondent’s brother, Boboye Ogunmuyite entered the land in 1991 and uprooted cocoa trees and doing ridges for planting.
iv. Upon the report by the Appellant’s father, Boboye was arrested, charged to Court, charge no. MCI/53C/91, but discharged and acquitted because the principal witness of the Appellant’s father failed to testify.
v. The said Boboye and his family thereafter entered the land and were planting.
vi. Appellant’s father instituted another case Suit no. Ise

CC/24/2001 against the Respondent’s father and another wherein judgment was entered on December 5th 2006 and the Appellant’s father was held to be the owner of the disputed farmland which was Exhibit A.
vii. The Respondent’s family and privies were restrained from further use of the land. There was no appeal against the judgment.
viii. Despite the restraint against the Respondent’s family and privies by the judgment, Exhibit A, his father continued further trespass on the land by selling oranges to customers such as the PW3, Ahmadu Musa and recruited Alfred Akogun, DW5 as labourer on the farm.
ix. Respondent’s father, Sunday Ogumuyite died in 2015 and the Respondent continued the selling of oranges.
x. In October 2015, the Appellant who resides at Oye-Ekiti visited Ise-Ekiti and discovered that his orange trees were marked signifying transaction. He therefore lodged a report to the Police.
xi. Upon enquiry, found the oranges were sold to the PW3 who was arrested and thereafter informed the Police that the Respondent sold the oranges to him.
xii. The Respondent who was arrested confirmed the

transaction in his statement, Exhibit B, that he inherited the farm from his father, late Sunday Ogunmuyite, the 1st defendant in Exhibit A.
xiii. The investigating team visited the orange farm, about 20 twenty minutes from Abusoro farm the traditional Ogunmuyites farm led by PW4 with members of the family of Ogunmuyites, the Appellant, his father and the Respondent.
xiv. Marks of transaction were seen on the orange trees and the Respondent admitted that he was responsible as well for the labourer on the farm. See pages 57 to 58 of the Record.
Having thoroughly read the Record before this Court, one agrees with the analysis and conclusion drawn by the trial Court.
The trial Court found and correctly in my view that the orange farm was not the Abusoro farm of the Ogunmuyites. According to it, the distance of about twenty (20) minutes and the different other farms along Agbado road between Abusoro and the orange tree farm, excluded the possibility of Abusoro and the orange tree farm to be one and the same. The trial Court made his finding on the evidence of the Investigating Police team leader, PW4 and quoted thus on page 53 of the

Record:
“On the day we went to the scene of crime, some family of Ogunmuyite were met on their individual portions on their farm who jointly followed us to the orange plantation which took us about 20 or more minutes from where I met the people the lawyer was talking (sic) about to the orange plantation in question.”
See pages 53, 58-59 of the Record.
With regard to the issue of the identity of the farm, whether or not it was Adu or Edu farm. One is inclined to agree with the reasoning of the trial Court. It stated on page 53 of the Record thus:
“From the evidence before this Court, it is established that Abusoro farm is not the only farm along Agbado Road. There are other farms including Omitapa farmland and Edu farmland.”
It found as follows on pages 46-48 of the Record:
“Yes, Exhibit ‘’A’’ is the judgment on a piece or parcel of land situated and lying at Edu farmland. The charge sheet on the other hand described it as Adu farm…
It is my view that the defendant was not misled by the particulars. He is been represented by a counsel. On the day the

defendant was arraigned before the Court, he pleaded not guilty to the three Court (sic) charge. Learned counsel ought to have raised an objection to the defect on the face thereof immediately the charge was read to the defendant and not later. See Section 166 and 167 of the Criminal Procedure Law. Exhibit ‘’A’’ refers to the land on which the disputed oranges was (sic) planted as Edu farmland, the PW1, PW2 and PW4 refers (sic) to the land as Edu farmland. One of the defendant (sic) witness, the DW1 also mentioned Edu farm in his evidence.
The PW1 submitted Exhibit ‘’A’’ to the police when he went to lodge a complaint. It is on the basis of this that the defendant was arraigned before this Court. Charge No MIS/2C/2016 was prepared where the land was described as Adu farm…
Exhibit ‘’A’’ has cleared the doubt as to the identity of the land. It shows the land is Edu farm and not Adu farm as stated in the charge sheet. Moreover, the evidence led has shown that the land is Edu farm and whatever error in respect of the name has been cleared by the evidence led.’’

On page 54 of the Record, the trial Court stated as follows:
“I am convinced from the evidence before me that the orange farmland in dispute where the orange trees were marked which was sold to Ahmadu Musa by the defendant is located at Edu farmland which belonged to the PW1 and his father.
While the defendant in his oval (sic) evidence denied ever hearing the name Edu or Adu farm, his witness (sic) DW1 and DW2 knew there is one Edu farm which is different from Abusoro farm.”
The Court from Exhibit A, the judgment delivered on December 5th 2006, found that there had been a dispute between the father of the Appellant and the Respondent over the ownership of the orange farmland and ownership and title of the land were granted to the Appellant’s father, Suberu Arogundade and there had been no appeal against same. He stated thus in respect of the Respondent with regard to Exhibit A on pages 50-51 of the Record:
“It sounds not only fantastic, but utterly incredible that the defendant would be claiming that he is not aware of Exhibit A but he is aware of Exhibit D. Exhibit D involves his brother while Exhibit A involves

his father. His father is the 1st defendant in Exhibit A. He was very close to his father. He lives with his father till he moves to his personal house. Case No ISECC/24/2001 lasted for about five years. The defendant brought the DW4 Chief Daramola, the Olute Alau. Exhibit C where the father of the defendant gave evidence as one of the boundary man (sic) of Chief Olute Alau was admitted through him. I believe that the defendant was telling lies in that respect and I reject his evidence.”
The relevant provisions herein are Sections 81 and 383 of the Criminal Code Cap 16 Vol. 1 Laws of Ekiti State of Nigeria which are reproduced hereunder as follows:
Section 81
Any person who in a manner likely to cause a breach of the peace or reasonable apprehension of a breach of the peace, enters on land which is in actual and peaceable possession of another is guilty of a misdemeanour and is liable to imprisonment for one year.
Section 383
Any person who fraudulently takes anything capable of being stolen is said to steal that thing.
See the case of ONWUDIWE V. F.R.N 2006 LPELR-2715 SC.
Flowing from the foregoing, in the

light of Sections 81 and 383 of the Criminal Code, the trial Court was correct to hold that the Respondent’s entry unto the orange farm was likely to cause a breach of peace and that the offence of stealing was proved against the Respondent beyond reasonable doubt. It was therefore found him guilty. See pages 59-63 of the Record.
It is pertinent at this junction to consider the position of the Court below with respect to the evidence of the DW3, DW5 and PW3. The Court on page 80 of the Record concluded that, the trial Court would have arrived at a different position if it evaluated their evidence. Having very carefully considered the Record in that regard, one fails to agree with the Court below, respectfully. It would appear that the trial Court did not deal extensively with their testimonies. It is however clear as crystal that the decision of the trial Court was not based on the evidence of the DW3 and DW5. See pages 35-64 of the Record. The trial Court in my considered view and humbly, would still have come to the same conclusion in its judgment, given its careful analysis and evaluation of all the evidence before it and correct ascription of

probative value thereto. From the Record on pages 24-26 and 81 of the Record, one finds that the thrust of the testimonies of DW3 and DW5, who were labourer on the farm and buyer of the oranges in dispute respectively, was for the Court to find that the Respondent and his father owned the farm with oranges which upon cross-examination, they both denied knowledge of its history and the actual person who planted the oranges. Being in long possession of another’s property as the Court below rightly pointed out and as in the instant appeal, in disobedience of a judgment of the Court, would and could not transfer ownership to the Respondent and his family.
The trial Court correctly in my humble view found the Respondent guilty having properly found ownership of the farmland and oranges in dispute in the array of evidence before it, particularly Exhibit A which has not been appealed against. In the light of the foregoing, this appeal is found with merit and therefore succeeds. The judgment of the Court below delivered by Hon. Justice A. Adesodun on August 6th 2018 in Suit No: HIS/3CA/2017 is hereby set aside. In consequence, the judgment of the

trial Court in Suit No. MIS/2C/2016, delivered on July 27th 2016 by His Worship, Chief Magistrate GRD 1, A. O. Adeosun is hereby affirmed. The conviction and sentence of the Respondent therefore stand.

FATIMA OMORO AKINBAMI, J.C.A.: I agree.

PAUL OBI ELECHI, J.C.A.: I agree.

Appearances:

Mr. F.D. Falade C.S.P.E, with him, Henry Osobu Esq. For Appellant(s)

P.O. Amayo Esq. (holding brief for Ejelonu Esq.)For Respondent(s)

Appearances:

Mr. F.D. Falade C.S.P.E, with him, Henry Osobu Esq. – for Appellant For Appellant(s)

P.O. Amayo Esq. (holding brief for Ejelonu Esq.) – for Respondent For Respondent(s)