ONDA v. C.O.P (2020)

ONDA v. C.O.P

(2020)LCN/15402(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Friday, October 30, 2020

CA/C/01C/2017

RATIO

BURDEN OF PROOF WHERE AN ACCUSED PERSON RAISES BY THE EVIDENCE A CLAIM OF RIGHT IN AN OFFENCE INVOLVING PROPERTY WITH WHICH HE IS CHARGED

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

CHIEF ONDA I. ONDA (M) APPELANT(S)

And

COMMISSIONER OF POLICE RESPONDENT(S)

HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): The instant appeal is against the judgment of Akon B. Kpeme J, of the Cross-River State High Court Akamkpa, Akamkpa Judicial division sitting in its appellate jurisdiction on the judgment of B. E. Mbang, of the Chief Magistrate Court, Akpet Central, in charge with No. MAC/16C/2009.

In the judgment of the lower Court delivered on the 4th of October, 2016, the lower Court upheld the conviction and sentence imposed on the appellant with respect to counts 2 and 3, while the two other co-accused persons were discharged and acquitted for lack of evidence linking them to any of the counts of the charge.

The appellant and the respondents gave two divergent facts leading to the institution of the action before the lower Court and subsequently to the instant appeal. According to the appellant, there exists a dispute between him (appellant) and the Pw2, Mrs. Rosemary Ugo Bassey over the piece of land upon which the appellant and two others were charged and convicted for stealing and harvesting palm fruits amongst other offences.

The appellant who is the village head of Ehom Central, where the offence allegedly took place had before then instituted a civil claim before the High Court, Akamkpa claiming title to the same piece of land. The appellant in the effort of taking control of the said land irked the Pw2 who now laid a complaint before the police, leading to his arrest, prosecution and subsequent conviction.

The respondent on the other hand, stated that Pw2 through his company called Abirere Nig. Ltd, sometimes in the year 2002, had a deed of assignment with one Mr. Etim Bassey Orok Amika over an oil palm plantation that’s managed and held by the said Mr. Etim Bassey Orok Amika for 17 years without interference.

That Mr. Etim Bassey Orok Amika was said to have earlier leased the said oil palm plantation from Ekpri Iko autonomous community, Biase Local Government Area of Cross River State under the headship of Chief Aidam (Pw3).
Pw2 was said to have acquired other plots of land, and that Certificates of Occupancy were issued in her name.

It was also the statement of the respondents, that the Pw2 continued to enjoy quiet and peaceful possession of the various plots of land including, that acquired by the deed of assignment, until on the 16th and 23rd of May, 2008, when appellant in the company of others forcibly entered on to the land and stole palm fruits valued Two Million Naira, in the process of which, appellant threatened the lives of the Pw2 and her workers.

Consequently, Pw2 reported the matter to the police, which led to the arrest, prosecution and conviction of the appellant.

Aggrieved with the decision of the lower Court, the appellant filed a notice of appeal on the 8/11/2016. The Extant Notice of appeal is the amended Notice of appeal filed on the 28/5/2019. The appeal having been entered to this Court on the 6/1/2017, appellant filed a brief of argument on the 28/5/2019, but deemed filed on the 16/6/2020. Appellant also filed a reply brief on the 3/7/2020, and on the 5/10/2020 when the appeal eventually came up for hearing, appellant adopted the two briefs and urged the Court to allow the appeal.

In opposing the appeal, the respondent filed a brief on the 15/6/2020, deemed properly filed on the 16/6/2020. Also, on the scheduled hearing date being the 5/10/2020, learned counsel for the respondent adopted the brief filed, and urged the Court to dismiss the appeal.

In the appellant’s brief settled by Linus P. Mbey leading, Obasesan Okoi and Maureen Ogbaji, and at page 7 thereof three issues were identified for resolution as follows:
1) Whether the refusal of the lower Court to allow the appellant compile and transmit proper and accurate record of appeal occasioned miscarriage of justice. (Distilled from ground 4).
2) Whether the conviction and sentence of the appellant (in a modified form) by the lower Court can be sustained in the face of the acquittal of the two co-accused persons on the same evidence (Distilled from ground 3).
3) Whether having regards to the principles of Quid quid plantatur, solo solo cedit, and the totality of the surrounding facts, evidence adduced at the trial Court and the defence of bonafide claim of right, the conviction and sentence of the appellant of the charge of stealing, store breaking and threat to life is sustainable as to warrant its affirmation by the Court below. (Distilled from grounds 1,2 and 5)

Also, in the brief settled for the respondent by Tanko Ashong, the learned Attorney-General and Commissioner for Justice, Cross River State, with Bassey U. Bassey Director, in the Ministry, identified three issues for resolution as follows:
1). Whether the lower Court and indeed Courts are bound by the record of proceedings produced from Counsel Minutes taken/recorded during Court proceedings.
2). Whether the lower Court was right to have upheld the conviction and sentence of the appellant by the trial Court in Count 2 and 3 of the charge respectively.
3) Whether the lower Court was right in affirming that the defence of bona fide claim of right under Section 23 of the Criminal Code Law did not avail the appellant and therefore justified in convicting the appellant.

It seems to me that the issues for resolution are similar in content. I however elect to be guided by those issues isolated by the respondent being concise and to the point.

ISSUE ONE.
Whether the lower Court and indeed Courts are bound by the record of proceedings produced from counsel minutes taken/recorded during Court proceedings.

This issue is in tune with issue one in the appellant’s brief in content. The appellant on the issue complained that appellant having paid for the transmission of the records, for which the registry failed to transmit the accurate records from the Magistrate Court to the High Court, and complained that even though the High Court had granted an application for the accurate records to be transmitted, the registry of the trial Court refused to implement the order. The totality of the appellants complaint is that the lower Court refused to allow appellant transmit the complete and accurate record to the lower Court and that the lower Court relied on an incomplete and inaccurate records to uphold the conviction and sentence of the appellant.

He submitted still that even when appellant filed an affidavit before the lower Court challenging the records, the lower Court still chose and proceeded to rely on the inaccurate records before it. He alluded to an instance where the lower Court acknowledged the incompleteness of the record, contending that the importance of records of proceedings cannot be over emphasised as cases are decided on the basis of the records and referred to the case of Garuba vs. Omokhodion (2011) MJSC (pt. 111) 154, on the principle that the record has to be checked with the original processes in Court to verify its correctness, and further that the failure of the lower Court to permit appellant compile accurate records of proceedings occasioned a miscarriage of justice.

He opined that most of the evidence contained in the record, legal arguments of defence counsel on the admissibility of documents and the final submission of defence counsel together with the counsel’s allocutus were missing from the record.

In response, learned respondents counsel stated that appellant and the co-accused person being unhappy with the records transmitted on the 24th of January 2011, brought an application on the 30th of March, 2011, seeking the order of Court compelling the trial Court to deliver the complete record book of the Court to the registrar of the lower Court for compilation of records to be used in the appeal.

Still not satisfied, the appellant and two ors, sought for the following reliefs:
a). An order of this Court authorizing applicants to type and compile accurately Appellant’s Counsel’s unedited record of proceedings from solicitor’s case file in Chambers, recorded in course of trial in MAC/16c/2009, which comprises (1) PW1 to PW4 evidence in chief and cross-examination.
b). An order of this Court to allow applicant Counsel to produce and compile his correct address on allocutus in MAC/16c/2009 for purpose of this appeal.
c). An order that this Honourable Court considers all the above records alongside with the two records of appeal before this Honourable Court in the interest of justice and for the purpose of this appeal.
d). And other orders.

He stated that the lower Court took addresses from counsel and delivered a considered ruling on the issue, to the effect that there was no justifiable reason relying on the record of proceedings produced from private records, but instead ordered that the two volumes of records produced by the registrar be used in the determination of the appeal.

Counsel argued that there was no miscarriage of justice occasioned to the appellant, contending that the law has prescribed a clear method for challenging records, which appellant failed to adhere to.

He commended to this Court the decision of Agaragara vs. F.R.N. (2007) 2 NWLR (Pt. 1019) 586, and submits that it is the record of proceedings which shows what transpired in Court and not the private record of counsel that is taken into consideration, and relied on Fawehinmi Const. Co. Ltd vs. O. A. U. (1998) 6 NWLR (Pt. 553) 195.

He maintained that the records of the lower Court were accurate and represented what transpired in Court, and thereby urged the Court to discountenance the argument of the appellant.

The complaint borne by appellant with respect to the lone issue is clear enough. Learned counsel held the view that the appeal before the lower Court was fought on an incomplete and inaccurate record, which occasioned a miscarriage of justice.

It has been held that the record of appeal is like the Bible. See the case of Fortune International Bank Plc vs. City Express Bank Ltd (2012) 14 NWLR (Pt. 1319) 86. This is so because, the records bind both the parties and the Court, which cannot go outside it nor allow conclusions that are not supported by the record. COP. vs. Okoye (2012) 14 NWLR (pt. 1320) 396.
By this issue, learned counsel for the appellant threw a challenge or tried to impugn the records of proceedings. Let me refer to the recent decision of this Court in Eze vs. FRN (2018) L.P.E.L.R – 4 6112 per Hussaini J.C.A to the effect that:
“The procedure for challenging the record of proceedings of a trial Court is more than mere complaint made by way of a ground of appeal raised and subsumed in the notice of appeal. A person or party whose complaint is over the correction of the record of appeal or record of proceedings of the trial Court must go by way of normal procedure known for challenging such records. The normal procedure is for such parties to swear to an affidavit challenging the said record of proceedings. It is his duty to set out the facts or part of the proceedings which is wrong in the records or what happened during the proceedings, which is not included in the proceedings, by the trial Court.
This affidavit will then be served on the trial Judge or registrar of Court and also counsel on the other side who may or may not file a counter-affidavit”.
In the instant case, appellant while contending that the trial Court relied on inaccurate records to deliver judgment, complained that the first records transmitted to the Court below had so many omissions as stated above, that the omissions and errors in the first record was stated in the record challenging the said record, that he had to complain to the state Chief Judge on the omissions in the record, and that the second record was infact worse than the first record. Appellant therefore premised on the above, stated that he had no option other than to seek the indulgence of the lower Court to type and to compile accurate record of proceedings from the solicitors file.
The lower Court in the ruling of the 15th of December, 2015 on the issue, after taking submissions of counsel, and relying on the case of Agaragara vs. FRN (supra) relying on the decision of Mohammed Bello per Dongban-Mensem JCA, proceeded to say that:
“I do not see any legally justifiable reason why this Court should reply (rely) on the records produced by the applicants counsel from his private records of what happened in Court”.
I do not see where to fault the ruling of the lower Court on the issue. For it is trite as stated by Ikyegh JCA, in IPC (Nig.) Ltd vs. NNPC (2015) LPELR-24652 (CA), that a party intending to impeach the record of appeal or to challenge same is duty bound to bring a motion on notice for amendment of the record to that effect, which should be served on the opponents and the registrar of the Court in question for their reaction. It is not done by submissions or arguments of counsel. I have in the instant studied the appellant’s motion of the 10th of March, 2014, alongside the affidavit in support, and of the view that the said application was not in conformity with the state of the law, the appellant having failed to properly impeach the record of proceedings of the trial Court, the record from the lower Court as transmitted is presumed to be correct. This is in furtherance of the duty of a Court of trial in ensuring that the record of appeal is typed correctly, and legibly before they are certified as true copies. See Oyenuga vs. ICL (1991) 1 NWLR (pt. 168) 415. In any case, it was stated in Ibrahim vs. The State (2011) 1 NWLR (pt. 1227) 1, and Dibie vs. The state (2007) 9 NWLR (pt. 1038) 30, that Court notes are not expected to be a verbatim report of all that was said or took place at a trial, but is meant to be an account of what transpired at the hearing. While it is necessary that the notes should not leave out the essential matters in the particular case, a trial will definitely not be set aside on account of the form it is recorded, and any person who is contending (as it is the case here), that the record of proceedings transmitted to the appellate Court is not a fair record of what happened at the Court of trial, must formally impeach the said record of proceedings, as laid down by the rules., and where he fails to do so, the appellate Court cannot speculate on the basis of counsel’s complaints by way of addresses. See, Ntufam Pius E. Itita & Ors vs. Government of Cross River State & ors. (2010) LPELR – 4341 (CA). Consequently, the appellant having failed to properly impeach the record of appeal transmitted to this Court, which is presumed to be correct, cannot complain about the fullness of the record at this stage. This issue is resolved against the appellant.

ISSUE TWO.
Whether the lower Court was right to have upheld the conviction and sentence of the appellant by the trial Court in count 2 and 3 of the charge.

The contention of the appellant on the issue is that the conviction and subsequent sentence imposed on the appellant by the lower Court cannot be sustained, in view of the acquittal of the co-accused on the same facts. He argued that where two or more persons are charged with the commission of an offence and the evidence against all the accused persons is the same or similar to the extent that the evidence is interwoven around all the accused persons, the discharge of one must as a matter of law affect the discharge of the others. The cases of Ebri vs. The State (2004) 8 MJSC 81 – 82, and Akpan vs. The State (2002) 10 MJSC 87 were cited on the legal principle. He posits that the conviction of one cannot stand where the other accused persons are acquitted and discharged.

Counsel goes further to argue that appellant and the two other co-accused having been arraigned on the same offences, and the evidence offered being that of the Pw1 – Pw3 linking the appellant with the two other co-accused acquitted by the lower Court, the appellant ought to have been acquitted as well based on the decision in Ebri vs. The State (supra). He urged the Court therefore to hold that the conviction and sentence imposed on the appellant for that reason cannot be justified.

Arguing contrariwise, learned counsel for the respondent submitted that the lower Court was right in affirming the conviction and sentence of the appellant in counts 2 and 3, having concluded that the 2nd and 3rd accused persons were not identified with the appellant at the time of the commission of the crime. He alluded to the holding of the lower Court at pages 351 of the record, to the effect that “The inference is that as at when Pw3 testified he did not know who the others were, and that is why he described them as at “large”, and contended that there was no conspiracy between the appellant and the 2nd and 3 accused persons before the lower Court, more so as the evidence submitted in respect of count one is quite different from the evidence in respect of the 2nd and 3rd counts of the charge. He submitted that the cases of Ebri vs. The State (supra) and Akpan vs. The State (supra) cited and relied upon by the appellant is distinguishable, and thereby urged the Court to hold that the lower Court acted in accord with the law in the circumstance of the case.

The facts that generated the complaint in the issue are not in dispute. Parties are on common ground on the fact that appellant and two other accused persons were arraigned before the Chief Magistrate Court, on a six-count charge, at the end of which they were convicted and sentenced to various terms of imprisonment. The lower Court having considered the appeal lodged before it, discharged the 2nd and 3rd appellants on all the counts of the charge, but upheld the conviction of the appellant on the 2nd and 3rd count of the charge only. The crux of the complaint herein is whether appellants’ conviction can be sustained when the 2nd and 3rd appellants before the lower Court were discharged of the same offence and on the same evidence.
The lower Court in discharging the 2nd and 3rd appellants on the 2nd and 3rd counts of the charge stated that:
“In exhibit A, the letter of complaint written on behalf of Pw2, the complainant, her solicitor, D. A. Agba Esq. stated that the 1st appellant along with his cronies threatened the lives of workers in the estate. He did not mention the names of the 2nd and 3rd appellants. I agree with the appellant’s counsel that the connotation is that at the time they were making the complaint, they did not know the other persons who allegedly committed the offence with the 1st appellant”
But then what is the evidence adduced by the prosecution witnesses on the issue? I have painstakingly studied the pieces of evidence adduced by the prosecution witnesses, most particularly the evidence of Pw1, Pw2 and Pw3. I also studied exhibit A; the petition written by the Pw2 to the Police. I have equally studied the evidence given by the 2nd and 3rd appellants before the lower Court, and I hold the view that the lower Court’s conclusion that 2nd and 3rd appellants before it were not tied to the commission of the offence was unassailable. All pieces of evidence point to the appellant and others at large, the 2nd and 3rd appellants before the lower Court having not been identified amongst those that perpetuated the alleged crime, the Court was right discharging them. On the contrary, there was evidence which the lower Court believed, that appellant herein was duly identified as having partaken in the alleged crimes and thereby the conviction upheld. I have likewise studied the cases of Ebri vs. The State (supra) and Akpan vs. The State also (supra). In the case of Ebri vs. The State (supra), Onu JSC, in his contribution after considering arguments not dissimilar to the arguments placed before this Court by the appellants, held that when a Court has totally discredited and rejected evidence of a witness and refused to use it as a basis for convicting an accused person, the Court should decline to use the same evidence as a basis of convicting another accused person, where the evidence linking the accused persons to the offence charged is inextricably interwoven and inseparable. In such a case, where one is discharged and acquitted, the other should also be acquitted and discharged. This principle may not however apply without exceptions. This is because where the evidence led by the prosecution is not interwoven in all material respect, or where the discharge or acquittal of one of the co-accused is erroneous, then the other co-accused cannot benefit there from. In any case each accused persons case is determined on the merit where the evidence led by the prosecution is not interwoven. See Akpan vs. The State (supra), Kasa vs. The State (1994) 5 NWLR (pt. 344) 269.

Relating these principles of law to the case at hand, it is vivid that while the evidences of the Pw1 – Pw3 pinned the appellant to the alleged crime for which the three appellants were being charged with, the 2nd and 3rd appellants before the lower Court were not so identified as participant criminis. In other words, it cannot be said that the evidence which the lower Court believed in convicting the appellant, equally applied to the two co-accused persons who were not identified with the commission of the crime and thereby discharged. I have no doubt whatsoever that under such a situation, the principles in the two above mentioned cases cannot apply since no such evidence binds all of them. I resolve the issue against the appellant.

ISSUE THREE
Whether the lower Court was right in affirming that the defence of bona fide claim of right under Section 23 of the Criminal Code law did not avail the appellant and therefore justified in convicting the appellant.

This issue turns on whether the appellant herein can benefit from the provision of Section 23 of the Criminal Code Act, 2004, which provided that:
“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”.

Learned counsel started by referring to the statement made in Igbuku Udu vs. I. G. of Police (1964) MNLR 116 to the effect that a bonafide claim of right is the claim in good faith by the suspect that the property involved was believed to be his own, and he may even claim the property on behalf of another. He also referred to the decision of Oputa J, as he then was in Umekesiobi U. Ufele vs. COP 3 ECSLR 42 @ 43-44 and a host of cases from the High Courts of the former Eastern States of Nigeria, and this Court, to argue that an honest claim of right without intention to defraud negates the necessary intent on a charge of stealing however ill-founded the claim may be in law and in fact. Running through a host of cases, mostly that of the High Court also sitting on appeal as well as this Court, counsel maintained that in a defense of a bona fide claim of right, it is settled law that such a claim might be unreasonable, but what is essential was the honest belief of the accused that he is entitled to the possession of the property said to have been stolen by him.

Learned counsel similarly referred to Sunday Dabierin & anor vs. The State (1968) 1 ALL NLR 138 @ 140, where the Apex Court held that, 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. Learned counsel continued to draw on cases which he states are similar to the case at hand contending that the lower Court and the trial Court were wrong to have dismissed the defense of bona fide claim of right raised by the appellant on the grounds that appellant failed to produce any evidence at the trial Court establishing the fact that the claim of right was made in all honesty and without intention to defraud. He referred to the claim by the appellant that the land belongs to him, and that was why he instituted a case before the High Court which is still pending, to which he tendered exhibits L and M in support. He contended that it was not the place of the lower Court to determine the ownership of title to the land, but to consider whether appellant had the honest belief in trying to exercise control over the disputed land. He submits that prosecution failed to establish the important element of mens rea, and wrongly upheld the decision of the trial Court on the matter. Owing to the foregoing, learned counsel urged the Court to resolve the issue in favour of the appellant.

The respondent on the other hand centered his submission on attacking the exhibits tendered by the appellant before the trial Court and submitted that from the scenario made out by him, Section 23 of the Criminal Code cannot avail the appellant. He contended that there was no honest assertion of what the appellant believed to be a honest claim even though it may be unfounded in law in that the scene of crime is not the subject of exhibit H and cannot therefore be relied upon. He made reference to the case of Spies vs. Oni (2016) 14 NWLR (pt. 1512) 236, and argued that the case revolved around the peaceful enjoyment of the land being enjoyed by the Pw2. He insists that the appellant’s action constitutes an exception to the principle in Section 23 of the Criminal Code in that the action was actuated by malice, knowing that appellant had no interest to the land peacefully enjoyed by the Pw2. He concluded by stating that the lower Court properly invoked and applied the relevant law having held that:
“It is therefore clear that the appellants did not plant the palm trees. To enter the said plantation and harvest fruits which they did not plant to the mind of this Court smacks of fraud and deceit which clearly constitutes an exception”.

I have given the submissions of the learned counsel on both sides of the divide due consideration, and thereby accorded the provisions of Section 23 of the Criminal Code a wide consultation in case law. It appears settled that once an accused person raises by the evidence a claim of right in an offence involving property with which he is charged, such as malicious damage to property, the burden shifts to the prosecution to dispel the absence of a claim of right made in good faith. See Nwakire vs. COP (1992) LPELR-2097 (SC). The situation arises in that a person by the provisions of the law is not criminally responsible for an offence relating to property in an exercise of an honest claim of right, even where it may be unfounded in law or in fact. See Ejike vs. IGP (1961) 5 ENLR 7, Ohanbamu vs. COP (1990) 6 NWLR (pt. 155) 210, Oteri & Ors vs. Afonugbe & Anor (1979) 2CA 273 per Kutigi JSC. It must be emphasized that the defense avails only that person who asserts that he had a lawful claim of right, though unfounded in law, and must exercise that belief honestly without the intention to defraud. See Adepoju vs. The State (2018) LPELR – 44355 (SC), Uzoka vs. FRN (2009) LPELR – 4950) (CA), Mboko & ors vs. COP (2012) LPELR – 9327 (CA).
The appellant from his evidence starting from pages 20 of the record, asserted that the subject matter is a land that he has title thereto by virtue of the Biase Traditional Rulers Arbitration report of the 24th of April, 2006. It was his evidence that:
“This arbitration report remained from a land matter between my humble self and on behalf of the community Ehom central and one Obot Eku Enang-Clan head representing Idoma community and me Chief Joseph Etim Ogar representing Ekpri Iko. The case started from the Customary Court to Magistrate and to the High Court. The subject matter had been a subject matter of the Customary Court arbitration. The entire subject matter is within Ehom central and falls within my administrative control. Mr. Amika is one of the tenants who illegally acquired land within Ehom central community. The land Mr. Amika acquired is the same subject matter in this Court, in addition to that of those (sic) Bassey (Mrs). The complainant acquired her land from Ekpri Iko who had been defeated as the Traditional Rulers Arbitration report shows. The same land acquired by Mr. Amika Etim falls under my administrative control. The entire village heads were part of the Arbitration and the said arbitration had not been appealed against or challenged”.
In order to fortify his testimony, appellant tendered the report of the Traditional Rulers Arbitration report, admitted as exhibit H. It is also on record that the trial Chief Magistrate Court noted that:
“Before the criminal charge had instituted a civil suit for the declaration of title at the High Court of Justice Akamkpa in respect of the same subject matter. I went to the High Court to enforce compliance with the provision of the Biase Traditional Rulers Arbitration report and but built (sic) I prayer for the Court to order to quit Mr. Etim Amika whom claimant claimed she bought the land from, and that the account should be rendered to me. I also prayed the High Court for a perpetual Injunction restraining the complainant and the defendants. I also asked for N10,000,000.00 general damages. The said suit is still pending at the High Court.”
The lower Court in its judgment, and on the issue whether a defence on the claim of right raised by appellant availed him from pages 350 – 351 of the record, situated its reasoning on the fact that the Pw2 by virtue of exhibits F, G1 – G111 is in possession of the disputed land. The lower Court also noted that appellant having not planted on the land acted fraudulently and thereby deceitfully in going into the land, which it considered as an exception to the defence. The Court went further to rely on the holding of the learned Magistrate Court Judge on the issue to the effect that the defence cannot be availed the appellant in the face of the vandalism and theft of perishable bags of palm fruits occasioned.
I must say that the lower Court misconceived the entirety of what the defence entails. The defence does not conceive of only the acts done by the accused person on the disputed land, for it is trite law as contended that an honest and reasonable belief in the existence of facts which if true would make the act being complained of, an innocent act is the crux of the defence. See, The State vs. Squadron Leader ST Olatunji (2005) 1NCC 478. The Section no doubt affords a defence to anyone who is honestly asserting what he believes to be a lawful claim of right even though it may be unfounded in law or fact. It is immaterial the fact that a party was unreasonable in going about his claim, see Dabierin vs. The State (1968) 1 ALL NLR 138 @ 140 or that in the pursuit of his claim, acts of violence or destruction were occasioned therein as in the instant case. In that wise, the decision of Oputa J, as he then was in Ufele vs. COP 3ECSLR 42, @ 43-44, though not binding, illuminates the fact that offences ranging from stealing, obtaining by false pretense, demanding with menace and malicious damages constitute offences against property and I agree with him.
The appellant herein from the facts presented in his defence laid ample reasons founding his belief stating that he was the rightful owner of the disputed land. He narrated efforts made to make the parties concerned recognise his ownership of the land and thereby accept the fact that they were tenants on the said land, which the Pw2 resisted. He went as far as to instituting a civil case in furtherance of the assertion of his right of ownership, wherefore he exhibited exhibits L and M, and it was on that basis that appellant tried forcefully to assert his right which the lower Court improperly considered. I agree with the appellant’s counsel’s submission that what was before the Court was not an issue of who had title or possession and thereby considering the issue of stealing simpliciter, which appellant of course denied. I am convinced that what was for consideration was the issue of appellant asserting a right which he believed he had, and the prosecution having failed to show that appellant had any impure intention of defrauding the Pw2, or that appellant had a guilty mind or acted without being honest in what he did, the defence of bonafide claim of right ought to have availed him. The effect of a defence under Section 23 of the Criminal Code has been held to negative those elements constituting any offence including the offence of stealing alleged against the appellant. The cases of Ejike vs. Inspector General of Police (supra), based on the English cases of Berhard vs. R (1938) 26 Cr. App. 349, and Goodway vs. Becker (1951) 2 ALL ER 349 are apt on the point.
I therefore agree with the submission of the appellants counsel that had the lower Court been properly guided on the issue, the resolution of the issue would have been made in favour of the appellant. This is premised on the state of law to the effect that once it is shown that the accused had a bona fide claim of right, the required mens rea is negated and accused absolved from any act done. This issue is resolved in favour of the appellant.

Hence having resolved the third issue herein in favour of the appellant, which turns out to be the determinant issue, the appeal succeeds and it is hereby allowed. The decision of the lower Court, delivered on the 4th of October, 2016, whereof appellant was convicted and sentenced to terms of imprisonment or fine is hereby set aside, in its place, I enter an order for the discharge and acquittal of the appellant.

MOJEED ADEKUNLE OWOADE, JCA.: I read in advance the judgment delivered by my learned brother Hamma Akawu Barka, JCA I agree with the reasoning and conclusion reached in the judgment. In particular, I join my learned brother to express the trite position of the law that an honest and reasonable claim of right, bona fide claim of right is a complete defence to property Offences such as in the instant case the offence of stealing.

I agree that the defence of bona fide claim of right ought to avail the Appellant in the instant case.

For this and the fuller reasons given in the lead judgment, I also allow the appeal. I abide with the consequential orders.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I had a preview of the lead judgment delivered by my learned brother Hamma A. Barka, JCA and I agree with him that this appeal is meritorious and should be allowed. I too allow the appeal and set aside the decision of the lower Court delivered on 4th October, 2016, I accordingly discharge and acquit the appellant herein.

Appearances:

Marcus Ogbuji Esq. For Appellant(s)

B. U. Bassey Esq. (MOJ) CRS For Respondent(s)