OKON SAM MBOKO & ORS V. COMMISSIONER OF POLICE
(2012)LCN/5549(CA)
In The Court of Appeal of Nigeria
On Friday, the 6th day of July, 2012
CA/C/224/2009
RATIO
APPEAL: EFFECT OF AN ISSUE FORMULATED FROM ANY GROUND OF APPEAL
Issue six does not relate to any ground of appeal and is hereby struck out. See Atanda & Ors. vs. Akanji & Ors. (1989) NSCC 511 at 537 and Akinlagun vs. Oshobajo (2006) 12 NWLR (Pt.993) 60 at page 80 paragraphs “D-E”. PER JOSEPH TINE TUR, J.C.A
EVIDENCE: REQUIREMENTS FOR TENDERING DOCUMENTS OR RECORDS OF PROCEEDING
Where the contents of a document or record of proceeding are material they shall be tendered at the trial. But if it is the question of the fact of their existence alone, they need not be tendered once admitted by the prosecution witnesses or the defence. see Owosho vs Dada (1984) 7 SC 149; Oparaji vs. Ohanu (1999) 6 SCNJ 27 at 43; Kano vs. Oyelakin (1993) 3 SCNJ 65. PER JOSEPH TINE TUR, J.C.A
JUSTICES
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
1. OKON SAM MBOKO
2. NDARAKE MBOKO
3. CLEMENT BEN AKPAN
4. SOLOMON BEN AKPAN
5. AKPAN SUNDAY UDO Appellant(s)
AND
COMMISSIONER OF POLICE Respondent(s)
JOSEPH TINE TUR, J.C.A (Delivering the Leading Judgment): On 19th July, 1996 the Acting chief Magistrate Itu, convicted the appellants and others for diverse criminal offences under the Criminal Code, Laws of cross River state of Nigeria Cap-31 Vol.2 in suit No.MIT/36C/1993. On appeal to the High Court of Justice, Cross River State, Justice Philomena S. Etim, exercising appellate jurisdiction set aside the conviction and sentence of the other accused person but upheld the conviction and sentence of the 1st-5th appellants. There have further appealed to this court. Each appellant filed a separate Notice and Grounds of Appeal on 20th July, 2009 followed by a Joint brief on 25th January, 2011, deemed properly filed and served on the Respondent on 23rd February, 2011 with leave of this court. On 29th February, 2012 the respondent was granted leave to file brief within seven days. Both briefs were adopted on 3rd May, 2012 when the appeal came up for hearing.
The case of the prosecution before the Acting Chief magistrate was predicated on ten counts with fourteen accused persons. The prosecution withdrew counts five, eight, nine and ten which were struck out on 29th April, 1993 and 20th June, 1996 respectively. During trial the prosecution applied and the name of the 12th suspect was struck out. The trial proceeded on counts one, two, three, four, six and seven. The prosecution called seven witnesses who testified and tendered twenty eight exhibits marked “A – Z”. Each accused gave evidence in their respective defences.
According to the prosecution witnesses, to scare away the complainants on 26th March, 1992 the appellants went with a dreaded masquerade called “Ayara Ekong” to harvest palm fruits in the land described in count one as “Aka Ikot Abasi Bush” in “Aka Udo Eno village” in actual and peaceful possession of Aka Ikot Udo Eno village and thereby committed an offence punishable under section 81 of the Criminal Code, cap. 31 Vol-II, Laws of cross River State, 1983 as applicable to Akwa Ibom State of Nigeria.
On 28th March, 1992 the appellants and others suspects again went and attacked the complainants’ villages, stole and damaged diverse properties, unlawfully assaulted and battered the residents including some of prosecution witnesses etc. For the purpose of this appeal I need not set out all the counts upon which the other suspects were prosecuted, convicted and sentenced by the Acting chief Magistrate since many of them were discharged and acquitted by the High Court of Justice on 20th April, 2009. I shall confine myself to the appeal of the 1st before this Court.
I shall reproduce only the Counts that are relevant for the determination of the appeal as they affect the 1st-5th appellants to wit:
“COUNT I. That you Peter Jonah Udo ‘M’, Okon Sam Mboko ‘M’, Sunday Etim Udo ‘M’ Apostle Sunday John Udo ‘M’, Ndarake Mboko Ikpeme, Clement ben Akpan, Akpan Sunday Udo, Solomon Ben Akpan, Etim Udo Ette, and Chief Ben Udo Aya on the 26th day of March, 1992 at Aka Ikot Udo Eno village, Itu in Itu Magisterial District did in a manner likely to cause breach of peace of reasonable apprehension of a breach of the peace entered on land known and called Aka Ikot Abasi Bush which is in actual and peaceful possession of Aka Ikot Udo Eno village and thereby committed an offence punishable under Section 81 of the criminal code, cap. 31 Vol.II, Laws of Cross River State, 1983 as applicable in Akwa Ibom State of Nigeria.
Count II: That You Solomon Ben Akpan, Uwen Okon Udonya, on the 28th day of March, 1992 at Aka Ikot Udo Eno village, Itu in Itu Magisterial District did steal one sewing machine valued N1,500.00, Two Yaclina 125 camera with two flashes valued N8,000.00 six shovels, rib diggers valued N7,060.00, Four bundles of zinc valued N4,800.00. Total value of property stolen N75,960.00, property of Okon Sunday Bassey and thereby committed an offence Punishable under section 390(9) of the Criminal Code, Cap.31, Vol. II, Laws of Cross River State of Nigeria, 1983 as applicable in Akwa Ibom State of Nigeria.
At the conclusion of trial the Acting chief Magistrate held as follows:
“Accordingly, I found the 1st, 2nd, 4th 5th, 6th, 7th, 8th, 9th, and 13th accused persons guilty in count one. In count two, I found the 8th and 10th accused persons guilty. I also found the 1st accused guilty in count three. In count four I hereby pronounce the 3rd accused guilty. In count six I found the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th, and 13th accused persons with the printed words of section 249(d) of the criminal code and I found them guilty accordingly. And finally, the 5th, 8th, 9th, and 10th accused persons are hereby found guilty in count seven. The 14th accused person is found not guilty in any of the counts.
ORDER: The 14th accused is hereby discharged and acquitted.”
The following sentences were passed on the convicts:
“SENTENCE:
1ST COUNT:
1st Accused: 1 year or N1, 000.00
2nd Accused: 1 year or N1, 000.00
4th Accused: 1 year or N1, 000.00
5th Accused: 1 year or N1, 000.00
6th Accused: 1 year or N1, 000.00
7th Accused: 1 year or N1, 000.00
8th Accused: 1 year or N1, 000.00
9th Accused: 1 year or N1, 000.00
13th Accused:1 year or N1,000.00
2ND COUNT:
8th Accused: 3 year or N1, 000.00
10th Accused: 3 year or N1, 000.00
3RD COUNT:
1st Accused: 3 year or N1, 000.00
4TH COUNT:
3rd Accused: 3 year or N1, 000.00
6TH COUNT:
1st Accused: 1 Month or N500.00
2nd Accused: 1 Month or N500.00
3rd Accused: 1 Month or N500.00
4th Accused: l Month or N500.00
5th Accused: 1 Month or N500.00
6thAccused: 1 Month or N500.00
7th Accused: 1 Month or N500.00
8th Accused: 1 Month or N500.00
9th Accused: 1 Month or N500.00
10th Accused: 1 Month or N500.00
11th Accused: 1 Month or N500.00
13th Accused: 1 Month or N500.00
7TH COUNT:
5th Accused: 2 years or N1,000.00
8th Accused: 2 years or N1,000.00
9th Accused: 2 years or N1,000.00
10th Accused: 2 years or N1,000.00
The issues formulated by the learned counsel for determination relates to the events that occurred on 26th March, 1992 (count 1) and 28th March, 1992 (Count 2).
Learned Counsel to the appellants has identified the following issues for determination:
“(i) Whether the lower appellate Court was right in upholding the conviction of 1st, 2nd and 4th appellants for the offence of forcible entry into land under section 81 of the criminal code, Laws of Cross River state then applicable in Akwa Ibom state when the ingredients thereof were not proved at the trial Magistrate’s Court.
(ii) Whether the failure of the appellate lower court to consider the defence of bona fide claim of right occasioned a miscarriage of justice resulting in upholding the conviction of the 1st, 2nd and 4th appellants.
(iii) whether the lower appellate Court was right in upholding the conviction of the 4th and 5th appellants for stealing under section 390(9) of the Criminal code based on the sole evidence of the to complainant (victim of crime) when such evidence was not sufficiently probative of the offence charged.
(iv) Whether the failure of the lower appellate court to include the 3rd appellant as one of the appellants totally free amounted to upholding his conviction for the offences of forcible entry and Conduct likely to cause a breach of the peace which convictions that Court had earlier on set aside in it’s judgment.
(v) On the totally of the evidence before the lower court, whether the judgment was perverse.”
The Respondent’s issues for determination are a verbatim reproduction of the above issue so I need not reproduce them.
Issue six does not relate to any ground of appeal and is hereby struck out. See Atanda & Ors. vs. Akanji & Ors. (1989) NSCC 511 at 537 and Akinlagun vs. Oshobajo (2006) 12 NWLR (Pt.993) 60 at page 80 paragraphs “D-E”.
APPELLANTS: ISSUE ONE:
Learned counsels argument is that there was no evidence to prove the ingredients to warrant the conviction of the 1st, 2nd and 4th appellants by the learned Acting chief Magistrate under section 81 of the criminal code hence the learned High Court Judge ought not to have upheld the conviction and sentence. Counsel referred to the ingredients that must be proved by the prosecution to sustain conviction- counsel argued that the conviction and sentence of the 1st and 4th appellants was based on the sole but unsupported evidence of PW3 namely, Okon Sunday Bassey. That there was no actual violence or such a threat of personal violence likely to intimidate the complainant and deter him from defending his possession of the land, citing Otoyo vs. C.O.P. (1963) 7 ENLR 175 at 177. It was submitted that from the evidence adduced by the prosecution in the trial court PW3 was not chased from the land by the Ayara Ekong masquerade. The appellants did not enter the land on 26th March, 1992 with implements of war as the Acting trial Magistrate erroneously concluded. Neither was evidence adduced that the complainant was in peaceable possession of the land where the forcible entry is said to have occurred. Learned counsel argued that the 1st, 2nd and 4th appellants had admitted harvesting palm fruits from their own lands on 26th March, 1992. The land is called “Ibong” and “Ebedeng” undisturbed. Counsel argued that there had been disputes between the appellants’ village and the complainants’ village over some pieces of land including the aforementioned but the disputes went in favour of the appellants. It was submitted that the identity of the lands in dispute was not proved by the prosecution. On the authority of Ikemson vs. The State (1989) 3 NWLR (Pt.110) 455 at 466 this Court should hold that the prosecution had failed to prove the offence under Section 81 of the Criminal Code.
ISSUE TWO:
On issue two learned counsel placed reliance on the provisions of section 23 of the criminal Code to argue that both the trial Acting Chief Magistrate and the learned High court Judge should have considered the defence of bona fide claim of right even if not raised by the appellants because of the existing disputes between the two villages over this land, citing Nwakire vs. C.O.P. (1991) NWLR (Pt. 167) 332 at 345 paragraphs “A- B”.
That it is enough if the belief is honestly held, citing Dabierin vs. State (1968) 1 All NLR 132 at 140. Reference was further made to Gabriel vs. The State (1989) 5 NWLR (pt.122) 457 at, 464; William vs. The State (1992) 8 NWLR (pt.261) 515 at 522 paragraphs “B-C” and Nwuzoke vs. State (1988) 1 NWLR (Pt.72) 529 at 532 as authorities that where prosecution has failed to prove the essential ingredients of an offence the appellants should be discharged and acquitted.
It was Counsel’s contention that the appellants being farmers and native people, it would not be out of place to take a masquerade along to harvest palm fruits on their land. The Honourable High Court Judge should not have held that the taking of a masquerade to the farm land to harvest the palm fruits should deprive the appellants of the defence of bona fide claim of right which they were entitled to take advantage in this circumstance.
ISSUE THREE:
Issue three relates to the learned Acting Chief Magistrate’s conviction and sentence of the 4th appellant (Solomon Ben Akpan) under section 390(9) of the criminal code. That there was no evidence to establish the offence as charged hence the learned High court Judge erred to have upheld his conviction and sentence’ counsel argued that PW.3 upon whose sole evidence the appellant’s conviction was founded was a tainted witness whose evidence needed corroboration. The failure of the Acting chief Magistrate to warn himself that corroborative evidence was needed of the testimony of PW3 before conviction led to a miscarriage of justice’ citing Adekunle vs. State (1989) 5 NWLR (Pt.123) 505 at 514; State vs. Uzoka (1990) 6 NWLR (Pt.159) 680 at 690. Counsel further argued that there was doubt that the 4th appellant stole the zinc or any other item as charged in count two. The doubt should be resolved in his favour, citing Nwosu vs. Board of customs & Exercise (1988) 5 NWLR (Pt….) 225 at 247.
ISSUE FOUR:
counsel contended that the conviction and sentence of the 3rd appellant (Clement Ben Akpan) by the Acting chief Magistrate under section 81 and 249(d) of the Criminal Code having been set aside on appeal entitled him to an order of a discharge and an acquittal from His Lordship sitting on appeal.
RESPONDENT: ISSUE ONE:
Learned counsel to the Respondent argued that the prosecution had led credible evidence to warrant the conviction of the 1st, 2nd and 4th appellants, reliance being placed on the evidence of PW.3. Counsel relied on the findings of the Acting Chief Magistrate and the ingredients to be proved to secure conviction under Section 81 of the criminal Code and upheld by the learned Justice of the High court exercising appellate jurisdiction: That the manner of entry into the land was scary and intimidating. The learned Counsel referred to Okotie-Eboh & Ors. vs. DPP (1962) 1 All NLR 553 to Support his argument. That conviction can be secured on the evidence of one witness, citing Aminu Tanko vs. The state (2008) 16 NWLR (pt.1114)597 at 640 and Ndidi vs. The State (2007) 13 NWLR (Pt.1052) 633.
ISSUE TWO:
Learned counsel’s argument on issue two was that for bona fide claim of right to be relied upon as a defence the appellants must first admit the allegations contained in the counts and go on to give an explanation to the effect that they had bona fide claim to the property forcibly entered into or destroyed, citing Joseph Dick vs. C.O.P. (2009) 9 NWLR (pt.1147) 550 at 554 paragraphs “F-H”. But where alibi is pleaded the defence did not avail the appellants. It was further contended that the defences of bona fide claim of right and alibi were contradictory and would not avail the appellants. The Acting Chief Magistrate found that the land upon which the appellants entered to pluck the palm fruits belonged to the complainants. This finding was upheld by the learned High Court Judge. Counsel submitted that in any case section 81 of the criminal code does not admit of the defence of bona fide claim of right. Counsel urged that this issue should be resolved in favour of the Respondent.
ISSUE THREE:
Counsel drew this Court’s attention to the fact that only the 4th but not the 5th appellant (Akpan Sunday Udo) was convicted under section 390(9) of the Criminal Code, based on the evidence of PW.3. That the court can convict on the evidence of a lone witness, citing Aminu Tanko vs. The State (2008) 16 NWLR (Pt.1114) 597 at 640; Ndidi vs. The State (2007) 13 NWLR (Pt.1052) 635.
Furthermore the offence charged under section 390(9) of the Criminal code does not require corroboration. That the learned Justice sitting on appeal acted rightly to have upheld the conviction of the 4th appellant.
ISSUE FOUR:
Counsel’s argument is that the 3rd appellant should have been included among those to be discharged and acquitted on counts one and six.
Counsel urged this Court to invoke the provisions of section 15 of the court of Appeal Act to make an order to meet the dictates of justice in this circumstance since the 3rd appellant’s conviction on count One and Six by the Acting chief Magistrate had been quashed by the learned High court Judge.
On the whole this court was urged to dismiss the appeal of the 1st, 2nd and 4th appellants. ISSUES ONE, TWO AND FOUR:
To prove the offence alleged in count one the prosecution relied on the sole evidence of PW3 –
Okon Sunday Bassey who testified as follows:
“PW.3: Sworn on Bible and states in Ibibio.
My names are Okon Sunday Bassey. I live at Aka Ikot Udo Eno, Ibiono Itu. I am a photographer. I know PW1 and 2 in this case. They come from my village. I also know the accused persons in this case.
They are my grandfathers. They come from Use Ikot Amama village. I know them since I was born. I remember 26-03-1992.”
On the 01-03-1992, my village placed embargo on palm fruits harvesting for the purpose of village development. The embargo was to be lifted on 28-03-1992.
Then on 26-03-1992, I was in my house and heard somebody harvesting palm fruits. I went out to see who was cutting the palm fruits. I wanted to be sure of the person harvesting so that I may not be accused since it was near to my house. When I got nearer I saw the 1st, 8th, 2nd accused persons and others. Because the 8th accused invited “Ayara Ekong” A fearful Masquerade) and I was afraid and ran away. The said “Ayara Ekong” came with the accused persons. I went to the village head and made a report to the effect that the accused persons were harvesting palm fruits near my house and that “Ayara Ekong” drove me away. The accused persons also harvested palm fruits in other parts of the village. The first plot they harvested palm fruits is called “Nyang Idim” They also harvested from “Ndon Ikot Abasi” bush Aka.
“Aka Ikot Abasi bush” These two plots are situate in Aka Ikot Udo Eno village.
All the people who came to harvest the fruits come from Use Ikot Amama. These palm plots are not in dispute between us and Use Ikot Amama.”
Cross examined PW3 answered thus: “Yes. I have seen “Ayara ekong” before.
Yes, it is a masquerade. “Ayara ekong” was seen in the palm plot and not in my compound. Yes, on 26th March, 1992, I was afraid to go near the “ayara ekong.” Yes, both my village and Use people have their “ayara ekong”. I could identify the “ayara ekong” to be from use because use people accompanied it.”
See page 36 lines 30 to page 37 lines 1-5 of the printed record.
Sergeant Effiong Alexander (PW7) investigated the alleged crimes for which the appellants were subsequently charged to court. The Corporal gave evidence during cross-examination as follows:
“…Yes, I Know Aka Ikot Abasi bush. I now say that, that was the land the accused persons entered and harvested palm fruits. The prosecution witnesses were in possession of the land when the accused persons harvested the palm cones. PW3 was physically present on the land on that date. PW3 was working on his piece of land of farmland there. The offences which the accused persons are charged occurred on two days. The dates are 26th March, 1992 and 28th march, 1992 respectively. The accused persons harvested the palm fruits on 26th march, 1992. Yes nothing else happened on 26th March, 1992. The land is inside Aka Ikot Udo Eno village. Yes, I came across a land called “Ibong” during my investigation. I do not know if palm fruits were harvested from Ibong land. Yes, this case was referred to me for investigation on 13th April, 1992. Yes Itu Division Police Headquarters had started investigation before the file was sent to me…”
See page 50 lines 19 to page 51 lines 1-10 of the printed record.
Again is the evidence of PW1 (Okon William Akpan) under cross examination:
“…I know that in the early sixties, there was a dispute between my village and that of the accused persons over land called Ebedeng.” About 1966, a Court gave judgment in respect of that land against us. I am 49 years (forty nine years). I am not aware if that judgment has been set aside. We do not trespass into the accused person’s land.”
See page 18 lines 16-24 of the printed record.
PW2 was Edet Vincent Udofia. His evidence in-chief was also as follows:
“…I know that there has been land dispute between Use and Aka people. I know that the dispute was settled but I do not know when. My father told me that the name of the land was called “Ebedeng.” All the people who came from Use that day were all armed…”
See page 22 lines 11-17 of the printed record.
Let us contrast the evidence of the prosecution witnesses with that of the appellants.
The 1st appellant (chief Peter Jonah Udo) testified before the Acting chief Magistrate as follows:
“My village has a land dispute with the village of Aka Ikot Udo Eno. The lands are Ibong Nwewep, Ubioko Odok, Owok Afia, Urua Nsai, Ebedeng etc. This land case was decided by the High Court, Uyo and judgment was given in our favour. The case was decided on 30th June, 1965.
CROSS-EXAMINATION BY EKONG ESQ:
Yes I told the court that I wrote my 1st statement by myself. Yes I wrote everything except the cautionary words. Yes, I put the date I made the statement. Yes I told the court that we won that case against the complaints. I cannot say who and who stood in for our village because I was a kid at that time. Yes I was told about the judgment. I also saw something about the judgment. What I saw about the judgment. What I saw about the judgment is the land called “Ebedeng.” I was not grown up to see Chief Udofia Ataha but I am told he was oar village head. Yes I know Okoronko Udo Anya. I did not know Antia udo Ikeme but I hear he was a Chief in my village. Yes I knew Daniel Etok Akpan; he was a Chief in our village.
Yes I saw one Akqan Udofia Essien, he Was a councillor in my village. Yes I gave a copy of the judgment to the police. Yes it was a Photocopy. I cannot identify it again because the police did not use it. I do not know if it is the one shown to ma EKONG ESQ.: I apply to tender a copy of this judgment obtained in suit No. C/41/1960 delivered on 30th June, 1965 by M.O. Balonwu Puisne, Judge.
It is a certified true copy of that judgment. The parties were the people of Aka Ikot Udo Eno as plaintiffs and the people of use Ikot Amama as defendants.”
The judgment was rejected by the Acting chief Magistrate because it was a Photostat copy of a certified true copy and hence marked “Rejected”.
Cross examined by the prosecuting state counsel 1st appellant answered thus:
“Yes I told the court that my village and that of the PWs Use to have land dispute. The names of the lands we use to have dispute with the PWs are called “Nwewep”, “Ubioko Odok”, “Ubonge Ise”, “Owok Afia’, “Urua Nsai” and others, then “Ebedeng” is the father of all the lands. Yes I have mentioned “Aka Ikot Udo Eno” bush as one of the lands we dispute.”
1st Appellant (DW2) Okon Sam Mboko also gave evidence as follows:
“On 26th March, 1992, I took part in harvesting our village palm fruits.
4th appellant (Solomon Ben Akpan) testified under cross-examination as follows:
“Yes I was in my village on 26th March, 1992. No I did not harvest palm fruits in the bush of Aka Ikot Abasi but in Ibong bush.”
See page 82 lines 19-21 of the printed record.
On 26th March, 1992 the entry and the harvesting of the palm fruits was according to PW3
“… near my house.” Secondly, that “…The first plot they harvested palm fruits is called “Nyang Idim” and “Ndom Ikot Abasi bush.” That these are situate in Aka Ikot Udo Eno village. But the appellants’ evidence is that where they harvested palm fruits on 26th march, 1992 was on their land which they called “Ibong” and “Edebeng.” Clearly, the identity/location of the land upon which the entry and harvesting occurred was a fact in issue.
The location and boundaries of the land near PW3’s house and that of the appellants became a live issue for the determination of who was in actual and peaceful possession of the land upon which the offence of forcible entry by the appellants occurred. This had to be proved beyond reasonable doubt. Without a visit to the locus in quo the learned Acting Chief Magistrate nevertheless held as follows:
“On this issue, the law is very clear.
Actual possession means physical possession. And physical possession, does not necessarily mean that the complainant must be physically present on the land. What it means is that the complainant must show acts of actual Possession e.g. the cultivation of the land. He need not put his bed and sleep there before could be said to be in actual possession. In this case this land is Aka Ikot Udo Eno village which even the 14th accused person admits through the rest feign ignorance of this land. They have their palm tress there and indeed exercised authority over it by placing embargo on the harvest of the palm fruits. Secondly, PW3 said when he entered the land, he was chased out by “Ayara Ekong.” This in my opinion is enough prove that the accused persons entered the land apart from with implements of war, also carried with them a terrorizing masquerade to scare the other party. It is my well considered opinion therefore, that the prosecution has done enough to finally establish the offence in count one under section 81 of the criminal code.”
See page 139 to 140 of the printed record.
But PW3 never testified that he entered the land near his house where the appellants were harvesting the palm fruits and was chased away by the presence of the dreadful masquerade. PW3 testified that when he went near the land and saw the masquerade he ran away. Neither did he testify that he saw the appellants armed with implements of war and the appellants were singing war songs on 26th March, 1992. PW3 did not testify he was working on the land when the appellants came to harvest the palm fruits contrary to P7’s evidence.
Without a visit to the locus in quo how did the Acting chief Magistrate arrive at the conclusion that the land near PW3’s house was in the actual and peaceful possession of Aka Ikot Udo Eno village?
I do not think the findings or holding by the learned Acting Chief Magistrate supports the evidence of the sole material witness Okon Sunday Bassey (PW3) as to what happened on 26th March, 1992. Even the “Ayara Ekong” masquerade did not enter the land near PW3’s house on 26th March, 1992. On appeal the learned Justice nevertheless held at page 350 lines 25 to page 351 lines 1-12 of the printed record as follows:
“I agree with the learned State counsel that enough force was used in entering the land of the complainant by the use of “Ayara” a fearful masquerade in the area. The question is who are those that are charged with count 1 upon which this ground of appeal is premised. I have noted that the said count 1 of the charge specifically talks about 26-03-1992 as the date the appellants entered the complainants’ land in a manner likely to cause breach of the peace. It should be noted that out of the 7 witnesses who testified for the prosecution, only PW3 testified concerning this count 7. His evidence was that on 26-03-1992 he heard people harvesting palm fruit near his house. So he went oat to see those who harvested Palm fruit without the ban being lifted. According to him, he saw the 1st, 8th and 2nd accused. That it was the 8th appellant who invited the “Ayara Ekong” which made him to run away.
Surprisingly in the charge i.e. count 1, 10 of the accused are charged for this offence. They are 1st, 2nd, 5th, 4th, 6th, 7th, 9th, 8th, 12th, and the 13th accused person. But the additional ground of appeal on this count is for 1st, 2nd, 4th, 5th and 6th, 7th, 8th, and 9th, i.e. 8 accused/appellants.
If the 4th and 5th appellants are excluded because of their success in their defence of alibi, those now remaining on this ground of appeal are 1st, 2nd, 6th, 7th, 8th, and 9th appellant. And if the only appellants seen and mentioned by the PW3 were 1st, 8th, and 2nd accused/appellant, then 6th, 7th and 9th appellant have nothing to appeal against on this ground. They were not seen not mentioned by the PW3 as those he saw harvesting palm fruit near his house. Those now left to argue this additional ground of appeal are 1st, 2nd, and 8th appellants. These are the only appellants whose conviction I uphold on this ground of appeal as the ingredients of the offence are fully present.”
I invoke the provisions of section 15 of the Court of Appeal Act, 2004 to set aside their conviction, discharge and acquit the 3rd appellant on count three and 4th and 5th appellants on count one.
The learned counsel to the respondent has argued that the defence of bona fide claim of right will not avail the appellants once their arraignment is under Section 81 of the Criminal Code.
Secondly, that having denied the commission of the crime they cannot plead the defence. Section 23 of the criminal code reads as follows:
“23. A person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud.”
I have reproduced the evidence of some of the prosecution witnesses and the 1st, 2nd and 4th appellants to show that there has been a long standing land dispute between the parties dating back to the 1960s. Each party gave a different name to the land where the harvesting of the palm fruits occurred. Where the appellants harvested the palm fruits near PW3’s house was in the actual and peaceful possession of Aka Udo Eno village as charged in count one. Where the contents of a document or record of proceeding are material they shall be tendered at the trial. But if it is the question of the fact of their existence alone, they need not be tendered once admitted by the prosecution witnesses or the defence. see Owosho vs Dada (1984) 7 SC 149; Oparaji vs. Ohanu (1999) 6 SCNJ 27 at 43; Kano vs. Oyelakin (1993) 3 SCNJ 65.
The situation the prosecution found herself in this appeal seems distinguishable from the case of chief Festus Okotie-Eboh & Ors. vs. The Director of public prosecution (1962) All NLR 352, cited by the learned Counsel to the Respondent. In that case the principal appellant was disputing over what was originally crown land. The principal appellant gave his contractors an authority in writing “…to demolish and clear any building, structures or obstructions from the plot known and described at plot 3, Block 3 Macpherson Road, Sapele, to enable the commencement of a proposed building on the said plot and which building plan has been approved.”
The exact location/identity of the land was not in dispute. There was no suggestion that the series of litigations embarked upon by the 1st appellant ever terminated in his favour. The trial Court found that at least for the past three years the complainant was in actual and physical possession of his demolished house. With full knowledge of these facts the 1st appellant still gave orders for the demolition of the buildings, structures or obstructions. At page 359 of the judgment the Supreme Court held that:
“It is a reasonable – indeed an irresistible inference that the 1st appellant expected Machine Orororho to resist any attempt to destroy and demolish the building where he resided and that this was likely to result in a breach of the peace.
If the evidence of Machine Orororho is believed, as it was by the learned trial Judge it was evident that the 1st appellant had instructed his contractors who went to demolish the buildings to prevent him (Machine) from moving whilst the demolition proceeded, and to keep him quiet by saving they were police constables from Lagos.
The position appears to be that the 1st appellant precipitated what was likely to result in a breach of the peace, and quickly got out of the way after setting the mischief afoot, and that white his action to recover possession was pending in Court…”
In this appeal the action to recover possession of this land was not pending in Court. Rather PW1 admitted under cross examination that in 1966 a court gave judgment in favour of the appellants’ predecessors on “Ebedeng” land. PW2 also admitted that the land dispute was settled. The appellants admitted harvesting palm fruits on 26th March, 1992 from Ebedeng and Ibong land. In view of all these admissions it cannot be said that the defence of bona fide or honest claim of right should not apply. The circumstances to warrant an appellant raising the defence was set out in the judgment of Ogundare, JSC in Nwakire vs. Commissioner of Police(1992) 5 NWLR (pt.241) 289 at page 304 paragraph “H” as follows
“… It is my humble view that what is required to be proved by an accused under Section 23 is his honest belief in his claim to the right to do what he is accused of doing, provided of course that what he did would have been lawful on the assumption that the right he claimed existed.”
At page 305 paragraph “H” his Lordship continued:
“…Once the appellant introduced evidence of a claim of right the onus shifted to the respondent to approve(sic) absence of a claim of right and the latter having failed in this case to discharge the burden, the appellant was entitled to an acquittal. It cannot be doubted that it is lawful of a land owner to remove any unlawful poles standing on his land.”
At page 309 of the judgment Nnaemeka-Agu, JSC held as follows:
“In the instant case it is my view that the fact that the appellant had some two years before the poles were planted, filed a Suit to press his claim is proof positive of the honesty of his belief that the land is his own. I, therefore, agree that the defence of claim of right was available to him and succeeded.”
In similar vein Brett, JCC held in Dabierin vs. The State (1968) 5 NSCC 98 at 99 that:
“….a claim of right exist whenever a man honestly believes that he has a lawful claim, even though it may be Completely unfounded in law or in fact, as was held in R.V. Skivington (1967) 2 WLR 665. It is enough if the belief is honestly held and there can be no justification for reading into Section 21 of the Criminal Code any implied requirement that it should also be a belief which it was reasonable for the accused person to hold.”
In my humble view the learned Acting Magistrate, based on the evidence adduced before him, should have considered the defence of bona fide claim of right before determining whether to acquit or convict the appellants of the offence charged in count one. Furthermore, it is not the number of witnesses called that matters. See Bako Pahar vs. Yauri Native Authority (1970) NNLR 107 at 111-112. Conviction can take place on the evidence of only one witness. In Alonge vs. Inspector-General of Police (1959) 4 FSC 203 Ademola, C.J.F, held at page 204 that to prove a criminal allegation beyond reasonable doubt, “…It is enough if sufficient evidence is called to discharge the onus which the law lays upon the prosecution.” But in my humble view there is no credible evidence from the prosecution to support the charge in count one because of the long standing dispute over this land between the villages of the prosecution witnesses and the appellants since the 1960’s. To secure conviction the prosecution needs objective evidence to establish the allegations in count one.
In The State vs. Fatai Azeez & Ors. (2008) 14 NWLR (pt.1109) 439 there had been enmity between two families because of land dispute which eventually culminated in the shooting to death of a member of the prosecution’s family. The trial Judge rejected the alibi put forward by the appellants, convicted and sentenced them to death for the killing. The court of Appeal set aside the conviction on grounds there was no independent eye witness account of what had transpired on the day of the shooting. The two independent witnesses who could have testified were not called by the prosecution. The State appealed. The Supreme Court held at page 475-476 that the learned trial Judge should have been cautious and wary in accepting hook, line and sinker the evidence of such witnesses to found conviction, citing Idahosa vs. The Queen (1965) NMLR 85. Further at page 483 Muhammad, JSC held that:
“Secondly, although a conviction may be made on the evidence of a single witness, it is always safer that the trial Judge warns himself of the danger of Conviction on the uncorroborated evidence of such a witness more so in a case where there existed inter-family disputes. See Iko Vs. The State (2001) 35 WRN 1 at 22-23; (2001) 14 NWLR (pt.732) 221 at 241-242…”
No such warning was given by the learned Acting Chief Magistrate before convicting and sentencing the 1st and 2nd appellants on count one.
The learned Justice in the High Court was also surprise why count one named ten accused persons when the principal eye witness (PW3) could identify only the 1st, 2nd and 8th accused/appellants culminating into the discharge and acquittal of the other, convicts. For the reasons given I also discharge and acquit the 1st and 2nd appellants on count one.
ISSUE THREE:
The 4th appellant is Solomon Ben Akpan charged together with Uwem Okon Udonya (also known as Udo Akpan Uko) on count two with stealing a sewing machine valued N1,500.00; two Yaclina 125 Camera with flashes Valued N8,000.00; six shovels; two diggers valued N1,060.00; four bundles of Zinc Valued N4,800.00. The total cost of the items allegedly stolen on 28th March, 1992 was put at N15,560.00. The properties are said to belong to Okon Sunday Bassey (PW3). Section 390(9) of the criminal code under which they were arraigned reads as follows:
”390. Any person who steals anything capable of being stolen is guilty of a felony, and is liable, if no other punishment is provided, to imprisonment for three years:-
xxx
(9) If the thing stolen is of the value of one thousand naira or upwards, the offender is liable to imprisonment for seven years.”
The theft of the items by the 4th and 8th appellants is said to have occurred on 28th March, 1992. To sustain the charge the prosecution once again relied on the evidence of Okon Sunday Bassey (PW3) who gave evidence as to what happened on 28th March, 1992 as follows:
“On 28th March, 1992, in the afternoon, I was in the farm behind mV house I heard people singing war song thus “Uka akan uko” meaning “warrior has defeated warrior” and the singers were coming from Use Ikot Amama towards our village. I walked slowly to my compound to see what was happening. On getting to my house, I met very many people coming into my compound. I was able to recognize some of them. I recognized the 1st accused person, the 8th accused the 10th accused, Uwem Akpan Uko, Okon, Sunday (not in Court), the 12th accused (name struck out by the Court), the 6th accused, the 2nd accused, and others. Of all the persons I have mentioned, only the 12th accused is not in Court. The rest are all in the dock. Uwem Akpan Uko is also called Udo Akpan Uko. When they reached my compound, I ran with my brother and hid myself among some plantain stands. The 1st accused person shouted “Use O” and the multitude answered “Uwahhhh”. The 10th accused was armed with the biggest gun. The 1st and 8th accused persons were also armed with gun. Some others also had gun with them. The 10th accused went found my house and when he got to the back of the yard he shot his gun. Solomon Ben Akpan (8th accused shot his gun in front of the house.”
When cross examined by defense Counsel PW3 replied thus:
“Yes, I told the court all what happened around my house. The 1st accused was the leader of the team which destroyed properties in my compound. The accused carried my properties away.
The 6th accused carried away my wife’s sewing machine. On that day, the 2nd accused carried away my zinc. The 7th accused damaged plantain in my compound. The 4th accused also damaged plantain in my compound.”
From this piece of evidence it was not the 8th accused (Solomon Ben Akpan) that carried the four bundles of zinc with the help of the 2nd accused (Okon Sam Mboko); it was the 2nd accused that carried the zinc. Again it was the 6th accused (Ndarke Mboko) and not the 4th or 8th accused that stole the sewing machine; the 8th accused (Akpan Sunday Udo) stole the goat while the 3rd accused (Udo Akpan Uko(Uwem) stole PW3’s camera. But when cross examined on 28th December, 1995 PW3 answered thus:
“The 6th accused carried away my wife’s sewing machine. On that day, the 2nd accused carried away my zinc. The 7th accused damaged plantain in my compound…”
See page 29 lines 22-30 of the printed record…
PW6 (Asuquo Sunday Bassey) testified he was with PW3 on 28th March, 1992 when the thefts and malicious damage to the properties occurred. PW6 gave evidence as follows:
“…The sewing machine was stolen by Ndarke Mboko (6th accused). The Camera was carried away by Udo Akpan Uko (3rd accused). The two flashes were taken by the 3rd accused, Sunday Etim (5th accused, took the digger. He carried two diggers. Solomon Ben Akpan Okon Sam Mboko carried the four bundles of zinc from our house. All the accused persons took part in the damage. We were hiding in the bush…”
See page 39 lines 3-12 of the printed record. While the charge in count two read that it was Solomon Ben Akpan (8th accused) now 4th appellant in this appeal and Uwem Okon Udonya (3rd accused) that stole all the properties mentioned therein, the oral evidence from PW3 and PW6 was that it was the 2nd accused (Okon Sam Mboko) the 1st appellant before this Court that did so on 28th March, 1992. The oral evidence does not support the charge.
Appellate Courts do not make it a habit to disturb concurrent findings of fact by lower Courts. However, where the concurrent findings do not flow from the evidence adduced at the trial or the evidence does not support the charge beyond reasonable doubt, I think it will not be out of place to interfere to right a wrong. See Isa vs. Queen (1961) NSCC 304.
For these reasons, I answer issue three in favour of the 4th appellant.
On the whole the appeal is allowed. The conviction and sentence of appellants is set aside. They are discharged and acquitted.
UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Joseph Tine Tur, JCA. He has adequately dealt with the issues as distilled by the parties.
I agree with his reasoning and final conclusions in allowing this appeal. I abide by all the consequential orders contained in the lead judgment.
ISAIAH OLUFEMI AKEJU, J.C.A.: I had read before now the judgment of my learned brother, Joseph Tine Tur, JCA just delivered. I agree with the conclusion that the appeal be allowed as well as the reasons therefor. I allow the appeal and abide by the consequential order in the lead judgment.
Appearances
Ada okonkwo (Mrs.)For Appellant
AND
Essien Udom & Samuel AkpabioFor Respondent
