LawCare Nigeria

Nigeria Legal Information & Law Reports

TEMITAYO v. STATE OF EKITI (2021)

TEMITAYO v. STATE OF EKITI

(2021)LCN/15623(CA)

In The Court of Appeal

(ADO-EKITI JUDICIAL DIVISION)

On Wednesday, October 27, 2021

CA/EK/28C/2020

Before Our Lordships:

Theresa Ngolika Orji-Abadua Justice of the Court of Appeal

Ibrahim Ali Andenyangtso Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

EGUNLUSI EMMANUEL TEMITAYO APPELANT(S)

And

THE STATE OF EKITI RESPONDENT(S)

 

RATIO

WHETHER OR NOT THE INGREDIENTS OF AN OFFENCE ARE EMBEDDED IN THE WORDS EMPLOYED BY THESTATUTE CREATING THE OFFENCE

The ingredients of any offence are always discernable from the language used by the legislature in providing for the offence. See the case of ROLAND VS. FRN (2018) LPELR-43686 (CA) where this Court held on page 32, paragraph B, that:
It is settled law that the ingredients of an offence are embedded in the words employed by the statute creating the offence and it will not be proper to import words, which the lawmaker did not use in order to ascertain the ingredients of the offence.
PER ALIYU, J.C.A.

INGREDIENTS OF THE OFFENCE OF FORCEFUL ENTRY TO LAND

From the provisions of Section 81 of the Criminal Code law of Ekiti State quoted supra, the ingredients of the offence created therein, are (1) that the accused entered into the land in possession of complainant, (2) the land is in actual and peaceable possession of the complainant, (3) the accused entered the land in such a manner that is likely to cause breach of peace, i.e. forcibly, and (4) the fact that the accused is entitled to enter the land is immaterial, of no consequence and not a defence. See the case of OKOTIE-EBOH & ORS VS. DPP (supra) that the Respondent referred us to, where the Apex Court held at page 7 paragraphs A-B regarding the burden placed on the prosecution to establish the offence of forcible entry that:
…. It is a case in which the crown must establish that the man Machine Orororho was in actual and peaceable possession of the land in question and that the appellants entered thereon in a manner likely to cause a breach of the peace or reasonable apprehension of a breach of the peace.
See also the case of C.O.P VS. OKIOWEI (2019) LPELR-49133) CA) where this Court held that ingredients of the offence of forcible entry to land are:
i. That the land in question was in actual and peaceable possession of the complainant;
ii. There was an act of entry on the land by the accused person(s); and
iii. The accused person(s) entered the land
a. With a show of force; or
b. In a manner likely to cause a breach of the peace; or
c. In a manner likely to cause a reasonable apprehension of a breach of the peace.
The forcible entry into the land is the key ingredient of the offence.

The Black’s Law Dictionary, Ninth Edition, page 718 defined “forcible” entry to be entry “effected by force or threat of force against opposition or resistance”. PER ALIYU, J.C.A.

BALKISU BELLO ALIYU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Ekiti State sitting at Ado Ekiti (lower Court) that was delivered on the 6th November 2019 in respect of criminal information NO: HAD/O1C/2019 filed on the 7th January 2019 against the Appellant and one Egunlusi Ezekiel. They were jointly charged with the following offences:
COUNT 1
STATEMENT OF OFFENCE
CONSPIRACY, contrary to Section 516 of the Criminal Code Law, Cap. C16, Laws of Ekiti State of Nigeria, 2012
PARTICULARS OF OFFENCE
EGUNLUSI EMMANUEL TEMITAYO and EGUNLUSI EZEKIEL, on or about March, 2017 at Iworoko Area, Ado-Ekiti within the jurisdiction of the Honorable Court, conspired to commit felony to whit: forcible entry and malicious damage.
COUNT II
STATEMENT OF OFFENCE
FORCIBLE ENTRY, contrary to Section 81 of the Criminal Code Law, Cap. C16, Laws of Ekiti State, 2012
PARTICULARS OF OFFENCE
​EGUNLUSI EMMANUEL TEMITAYO and EGUNLUSI EZEKIEL, on or about March, 2017 at Iworoko Area, Ado-Ekiti within the jurisdiction of the Honorable Court, did forcibly enter into the land in possession of Hon. Justice Jide Aladejana and his family members located opposite the Now Ekiti State University gate, Ado-Ekiti, Ekiti State.
COUNT III
STATEMENT OF OFFENCE
MALICIOUS DAMAGE, contrary to Section 451 of the Criminal Code Law, Cap. C16, Laws of Ekiti State, 2012.
PARTICULARS OF OFFENCE
EGUNLUSI EMMANUEL TEMITAYO and EGUNLUSI EZEKIEL, on or about March, 2017 at Iworoko Area, Ado-Ekiti within the jurisdiction of the Honorable Court, did maliciously and unlawfully damage valuable crops on the land in possession of Hon. Justice Jide Aladejana and his family members located opposite the Now Ekiti State University gate, Ado-Ekiti, Ekiti State.
COUNT IV
MALICIOUS DAMAGE, contrary to Section 457 of the Criminal Code Law, Cap. C16, Laws of Ekiti State, 2012.
PARTICULARS OF OFFENCE
EGUNLUSI EMMANUEL TEMITOYO and EGUNLUSI EZEKIEL, on or about March, 2017 at Iworoko Area, Ado-Ekiti within the jurisdiction of the Honorable Court, did maliciously and unlawfully damage boundary and survey marks on the land in possession of Hon. Justice Jide Aladejana and his family members located opposite the Now Ekiti State University gate, Ado-Ekiti, Ekiti State.

The Appellant denied the charge by pleading not guilty to all the three counts and the matter went to trial. In attempt to prove the charge, the prosecution called three (3) witnesses and tendered documentary and real exhibits in support of the charge. The prosecution’s case against the Appellant was that Hon. Justice Babajide Aladejana wrote a complaint to the Commissioner of police against the Appellant and his family, alleging trespass, assault, forcible entry on land and unlawful removal of economic trees and survey pillars from his land. That the Appellant took a pay loader to the land measuring about 21 hectares and were cutting trees that were planted 30 years ago by the father of the nominal complainant. They also damaged boundary and survey marks put on the land.

​The Appellant being the 1st defendant denied the charges and the claims of the nominal complainant and claimed the ownership of the land he was accused of forcible entry. He claimed it was his family land and that the nominal complainant was trying to use his position as a High Court judge to oppress his (Appellant’s) family and take away their family land. He testified in his defence at the trial Court.

At the end of the trial, the learned trial Judge found and held that the prosecution proved only count 2 of the charge for forcible entry contrary to Section 81 of the Criminal Code Law of Ekiti State against the Appellant. Accordingly, the Appellant was convicted of the said offence and sentenced to six (6) months imprisonment or an option of fine of N10, 000. He was discharged and acquitted of counts 1, 3 and 4.

The Appellant was aggrieved with his conviction and sentence of count II of the charge and he filed a notice of appeal against that part of the judgment on the 28th January 2020 which was subsequently amended and filed on the 10th November 2020, but deemed properly filed and served on the 7th July 2021. The Appellant relied on 4 grounds contained in the amended notice of appeal to pray this Court to allow the appeal and discharge and acquit the Appellant of count 2.

​The Appellant’s amended brief of argument settled by YAKUB DAUDA ESQ. was filed on the 10th August 2021 but deemed properly filed and served on the 28th September 2021. The learned counsel raised two issues for the determination of this appeal reproduced below:
1. Whether the learned trial Judge did not rely on speculations, sentiment and conjectures instead of hard facts in coming to the conclusion that the Appellant was guilty of the offence of forcible entry consequent upon which he was convicted and sentenced to six months imprisonment or option of N10, 000 fine. (Distilled from grounds 1 and 2 of amended notice of appeal).
2. Whether considering the facts and circumstances of this case coupled with the evidence, both oral and documentary placed before the trial Court, the Respondent could be said to have discharged the onus of proof beyond reasonable doubt placed on it to have warranted the conviction and sentence of the Appellant for the offence of forcible entry. (Distilled from grounds 3 and 4 of appeal).

In opposing the appeal, the Respondent filed its brief of argument settled by her learned Attorney General OLAWALE FAPOHUNDA ESQ. and filed on the 20th September 2021 but deemed properly filed and served on the 28th September 2021. The learned Attorney-General adopted the two issues proposed by the Appellant, but couched differently thus:
1. Whether the learned trial Judge acted on speculations, sentiments and conjectures in convicting and sentencing the Appellant.
2. Whether considering the totality of the evidence before the trial Court, the Court was not right in its decision that the prosecution successfully established and proved the ingredients of the offence of forcible entry warranting the conviction and sentencing of the Appellant.

The appeal came up for hearing on the 28th September 2021 and the learned counsel on both sides adopted their respective briefs referred to supra. The submissions of the parties are considered below.

APPELLANT’S SUBMISSIONS
In arguing issue one, the learned Appellant’s counsel relied on the case of ARCHIBONG VS. ITA (2004) 2 NWLR (PT. 858) 590 to submit that it is trite that a decision of the trial Court based on suspicion and speculation is faulty and cannot stand the test of an appellate Court. He contended that a perusal of the judgment of the trial Court appealed against will reveal that the learned trial Judge acted on mere speculation and conjecture which influenced his decision to convict the Appellant of the offence of forcible entry. He extensively quoted the decision of the trial Court contained in pages 18 to 21 (pages 115 to 118 of the record of appeal) where the learned trial Judge held inter alia, that “it is not likely that a person would survey a land without demarcating same with pillars and beacons…” and his Lordship’s belief that PW2 that saw some workers on the land and concluding that the workers “must have been sent there by the defendants”. He submitted that it is clear that the prosecution did not provide basis for which the conclusion of the trial Court was arrived at, because PW1 the nominal complainant who alleged that pillars and beacons were destroyed had the duty to first establish that there were indeed beacons on the land and they were destroyed as a result of acts of the Appellant. He insisted that the prosecution failed to prove these facts, which fact ought to have dealt a fatal blow to its case.

The learned Appellant’s counsel accused the learned trial Judge of assisting the prosecution to establish what it could not establish by evidence in making speculation and conjectures that he believed PW1 on the presence of pillars and beacons on the land and that same were destroyed by the Appellant. He submitted that the learned trial Judge ought to have applied serious caution in considering whether or not there were beacon pillars and they were damaged, especially as the prosecution failed to produce the damaged beacon pillars. He placed further reliance on the cases of THE STATE VS. JOSEPH NNOLIM & ANOR. (1994) NWLR (PT. 345) 394 at 412 and AYO ADEGBITE VS. THE STATE (2017) LPELR-42545 (SC) to submit that the learned trial Judge’s pronouncement that he believed PW1 was not lying in his evidence that the Appellant admitted to him that he damaged the pillars on the land constitutes speculation and conjectures especially as PW1 has actually testified that he did not see the Appellant on the land. The denial of the Appellant of admitting to the PW1 that he damaged anything on his land placed the onus on the prosecution to prove that the Appellant actually damaged PW1’s land and that he confessed to PW1 to that effect.

​With regards to the pronouncement of the trial Court that the workers whom PW2 said he saw working on the land in issue were sent by the Appellant, learned counsel argued that this holding is also speculative because there was no evidence, factual, legal or circumstantial before the trial Court on which the said belief could hang. He relied on the case of UGO VS. THE STATE (2016) LPELR-41546 (CA), to the effect that a decision of Court based on suspicion and speculation is faulty, in urging us to resolve issue one in favour of the Appellant.

On the Appellant’s issue two, learned counsel submitted that the prosecution upon whom the duty to prove the guilt of the Appellant beyond reasonable doubt rested failed to discharge this burden. That from the evidence, the prosecution led the trial Court to understand that what ignited the prosecution of the Appellant was the complaint of PW1 of criminal trespass, assault, malicious damage and extortion that was written to the police on the 20th March 2017 admitted during the trial as exhibit ‘3’. But curiously the allegation of forcible entry was absent in exhibit ‘3’, which means that this allegation was imported by the prosecution. Again, the extrajudicial statement of PW1 to the police was also recorded in March 2017 as shown in pages 8 and 9 of the record of appeal.

​The learned Appellant’s counsel also drew our attention to the contents of exhibits ‘3’ and ‘4’, the extra judicial statements of PW1 and PW2. In exhibit 4, PW2 who was the person that informed PW1 of the workers he saw on the latter’s land, stated that it was on the 9th May 2017 that he saw the workers working on the land. But exhibit ‘3’ (written complaint of PW1 to the police) was written in March 2017, two months before PW2 made the report to PW1. He raised the question how did PW1 get the information he wrote in exhibit ‘3’ when he admitted under cross examination that he did not see the Appellant destroy anything on the land, and when in exhibit ‘4’, PW2 said he informed him of what he saw on the land on 9th May 2017. He contended that these facts show the suspicious stories of the witnesses of the Respondent and the sharp contradiction between their extra-judicial statements and their oral evidence before the trial Court. That the attempt made by PW2 to amend the date he reported the incidence to PW1 to be in March 2017 and not May 2017 written on exhibit ‘4’ in order to align his evidence to exhibit ‘4 failed woefully. He submitted that the contradiction in exhibits ‘3’ and ‘4’ and the oral evidence of the witnesses before the trial Court is fatal to the case of the Respondent. He relied on the case of SIMEON LALAPU VS. COP (2019) LPELR-47814 (SC) for support.

The Appellant further referred to the PW2’s evidence that it was the workers he saw on the land clearing the remaining stumps of gmelina trees who told him the Appellant’s Egunlusi family sent them to do the work. He submitted that this piece of evidence is hearsay and the prosecution did not call the workers to testify on what PW2 said they told him.

​On the evidence of PW3, the investigation police officer, the Appellant submitted that his evidence also amounted to hearsay, which cannot be relied upon to form the basis of convicting the Appellant. This is because this witness did not say he arrested the Appellant at the scene but only invited him. Further, he did not invite the workers that PW2 said he saw working on the land. These facts showed that the evidence of PW3 has no substance as far as the crimes allegedly committed by the Appellant are concerned while the evidence of PW1 and PW2 that would have assisted the lower Court in sustaining the conviction of the Appellant had been demonstrated to be riddled with sharp and irreconcilable contradictions. Therefore, the Respondent failed to prove its case against the Appellant beyond reasonable doubt. He argued that the presumption of innocence guaranteed by Section 36(5) of the Constitution of Nigeria, 1999 as amended still inures in favour of the Appellant and the Respondent failed to rebut that presumption. We were urged to resolve issue two in favour of the Appellant and to allow this appeal.

RESPONDENT’S SUBMISSIONS
In arguing issue one of the Respondent, the learned Attorney General submitted that the argument of the Appellant to the effect that the learned trial Judge placed reliance on speculations, suspicion and sentiment in arriving at the decision to convict the appellant is misconceived and misplaced, regard being had to the law and evidence led by the prosecution before the trial Court. That indeed, taking into consideration the entire gamut of the evidence on record, the Appellant could not have been discharged and acquitted of the charge of forcible entry as argued by him.

The learned Attorney General further contended that the Appellant is only trying to hoodwink us when he ostensibly quoted the judgment of the trial Court on page 115 of the record but left the preceding paragraph that contained the substratum upon which the quoted paragraph was founded. Relying on the cases ofOKAFOR VS. NNAIFE (1987) 4 NWLR (PT. 64) 129 at 137 and SOUTH ATLANTIC PETROLEUM LTD VS. THE MINISTER OF PETEROLEUM RESOURCES & 2 ORS. (2018) 1 SCM 156 at 181-182, the learned A.G. urged us to disregard the argument of the Appellant and to decline his invitation to disturb the decision of the trial Court. This is because a combined reading of paragraphs 2 and 3 of the judgment of the trial Court on page 115 of the record of appeal would reveal that the lower Court meticulously appraised and evaluated the evidence led and acted on same in coming to the conclusion that the Appellant forcibly entered the land in possession of the PW1. He quoted lines 12-39 of page 115 and lines 1-3 of page 116 of the judgment upon which he argued that the submissions of the Appellant to the effect that there was no basis for the trial judge’s conclusion was incorrect. He also referred us to the evaluation of evidence of PW2 made by the learned trial Judge contained on pages 45, 47, 48 as well as the evidence of the Appellant as DW1 analyzed on page 63 of the record, which pieces of evidence, he argued, formed the basis of the trial Court’s conclusion on pages 115 to 118 of the record and therefore there was no speculation or conjectures in its decision.

With regard to the burden of proof on the Respondent as the prosecution, the learned A.G. conceded that he has the burden to prove allegations of crime, however, the golden thread rule that crime must be proved beyond reasonable doubt must not be stretched beyond the realm of reasonable doubt, else it will cleave. He relied for support of this submission on the case of OKOROJI VS. STATE (2001) FHLR (PT. 77) 871 at 894-895.

On the argument of the Appellant that the Respondent failed to call the workers whom it alleged were commissioned to forcibly enter on the land in possession of the nominal complainant, the learned A.G. submitted that it is the law that the prosecution is not duty bound to call a host of witnesses because a single witness whose evidence is credible is sufficient or enough. He placed reliance on the case of OSAREREN VS. FRN (2018) 7 SCM 133 at 167-168.

He further submitted for the Respondent that the evaluation and review of evidence is the constitutional duty of the trial Court and not the business of the Appellate Court, let alone that of Counsel especially where the credibility of witnesses is in issue. That it is within the ambit of the trial Judge’s duty to evaluate evidence and ascribe probative value to such evidence and in so doing, to believe or disbelieve a witness. He submitted that the trial Court cannot be chastised for carrying out this assigned constitutional duty, relying on the case of OLUDE VS. THE STATE (2018) 12 SCM (PT. 2) 116-118. Finally on this issue, the learned Attorney-General argued that all the authorities cited by the Appellant in support of his argument on issue one are not helpful to his case and he urged us to disregard them and the argument of the Appellant thereby resolving this issue against the Appellant.

On issue two, the Respondent submitted that the contention of the Appellant that the prosecution did not prove the offence of forcible entry against him is a non-starter and goes contrary to the grains of our criminal jurisprudence relating to the ingredients of the offence of Forcible entry. That the burden on the Respondent to prove allegation of crime beyond reasonable doubt does not mean proof beyond every shadow of doubt or proof with forensic precision. The learned Attorney-General referred us to the cases of STATE VS. SANI (2018) LPELR-43598 (SC), CHUKWUMA VS. F.R.N. (2011) 13 NWLR (PT. 1264) 391, EKPO VS. STATE (2018) 6 SCM 47 and ABEKE VS. STATE (2007) ALL FWLR (PT. 366) 644 at 659 on the meaning of “proof beyond reasonable doubt.”

Learned counsel also referred to the ingredients of the offence of forcible entry that the Appellant was convicted of, and the case of OKOTIE-EBOH & ORS VS. DPP (1962) LPELR-25138 (SC), where the Apex Court interpreted the provisions of Section 74 of the Criminal Code to the effect that the gravamen of the offence of forcible entery is that the offender entered the land which was in actual and peaceable possession of another, with such a show of force which may likely cause a breach of peace. He also referred us to the evidence led by the prosecution to prove the offence against the Appellant vide the testimonies of PW1, the holder of the certificate of occupancy on the land, PW2 the eye witness to the commission of the offence and PW3 the police officer who investigated the case and recorded statements from the Appellant and procured exhibits relied upon by the prosecution at the trial Court. He quoted the Apex Court in the case of OKOTIE-EBOH & ORS. VS. DPP (SUPRA), where it held that he who is in actual possession of land must not be ousted from it with unreasonable force by a claimant and without recourse to due process of law and Courts, even if he was originally a trespasser. He pointed out that in this case, the Respondent was able to prove that PW1 was in actual, lawful and peaceable possession of the land vide exhibit ‘1’, the certificate of occupancy and further supported by exhibit ‘6’, the extrajudicial statement of the Appellant.

​Furthermore, the Respondent was able to prove through exhibits 11 A-H and the evidence of PW2, that the act of the Appellant in sending workers to work on the land was intended to trigger a breach of peace. He submitted that there was no evidence showing that the Appellant and his family owned the land in possession of PW1, which he forcibly entered into.

In response to the contention of the Appellant that the written complaint of PW1 to the police, exhibit ‘3’ did not contain allegation of forcible entry to land, but that offence was ‘imported’ by the prosecution, the learned A.G. submitted that it is the duty of the Respondent’s Director of Public Prosecution (DPP) to review any case file forwarded to him by the police and proffer information and proof of evidence in respect thereof, regardless of what the type or nature of complaint made to the police.

​With regards to the contention of contradictory dates on the PW1’s letter of complaint to the police and the extra judicial statement of PW2 on the day the incidence occurred, learned A.G. submitted that since the Appellant in his evidence before the Court admitted he forcibly entered the land in possession of PW1, the mere slip in the dates is not fundamental because it did not strike to the root of the Respondent’s case or touch the substance of the crime committed. He relied on the case of IDAGU VS. STATE (2018) LPELR-44343(SC) to submit that the law allows minor discrepancies in the evidence of witnesses, which is not as to material facts to the charge against the accused person. That such minor discrepancies should not be used to disturb the finding of guilt where there is sufficient evidence led on the material facts to the charge. Besides, the Appellant while testifying as DW1 (page 63 of the record of appeal) admitted entering the land and uprooting trees therefrom.

On the Appellant’s contention that the evidence of PW3, the police officer who investigated the case (IPO) is hearsay evidence, the Respondent referred us to the case of KAMILA VS. STATE (2018) LPELR-43603 (SC) where it was held that an IPO’s evidence is not hearsay evidence because he narrated to the Court the outcome of his investigation or what he discovered in the course of his duty. The learned Attorney–General urged the Court to resolve this issue against the Appellant. On the whole, he prayed the Court to dismiss this appeal because the Appellant has not shown any reason to impeach the findings of the trial Court.

RESOLUTION
The parties are in agreement on the issues arising for determination from the grounds of this appeal and I have no reason to disagree with them. I therefore adopt the Appellant’s two issues as re-couched by the learned Respondent’s Counsel to be my guide in the determination of this appeal. Under issue two, the Appellant asserted that the prosecution failed in its bounden duty to prove the offence of forcible entry against him beyond reasonable doubt because the evidence presented in support of the allegation was insufficient to discharge that burden and secure his conviction. As such, he contended under issue one that the trial Court only relied on speculation and conjectures to convict the Appellant. The two issues will be determined together for brevity.

​The record of proceedings showed that the Appellant was charged with and convicted for the offence of forcible entry contrary to Section 81 of the Criminal Code Law of Ekiti State, which provides that:
Any person who, in a manner likely to cause 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. It is immaterial whether he is entitled to enter on the land or not.

The ingredients of any offence are always discernable from the language used by the legislature in providing for the offence. See the case of ROLAND VS. FRN (2018) LPELR-43686 (CA) where this Court held on page 32, paragraph B, that:
It is settled law that the ingredients of an offence are embedded in the words employed by the statute creating the offence and it will not be proper to import words, which the lawmaker did not use in order to ascertain the ingredients of the offence.

From the provisions of Section 81 of the Criminal Code law of Ekiti State quoted supra, the ingredients of the offence created therein, are (1) that the accused entered into the land in possession of complainant, (2) the land is in actual and peaceable possession of the complainant, (3) the accused entered the land in such a manner that is likely to cause breach of peace, i.e. forcibly, and (4) the fact that the accused is entitled to enter the land is immaterial, of no consequence and not a defence. See the case of OKOTIE-EBOH & ORS VS. DPP (supra) that the Respondent referred us to, where the Apex Court held at page 7 paragraphs A-B regarding the burden placed on the prosecution to establish the offence of forcible entry that:
…. It is a case in which the crown must establish that the man Machine Orororho was in actual and peaceable possession of the land in question and that the appellants entered thereon in a manner likely to cause a breach of the peace or reasonable apprehension of a breach of the peace.
See also the case of C.O.P VS. OKIOWEI (2019) LPELR-49133) CA) where this Court held that ingredients of the offence of forcible entry to land are:
i. That the land in question was in actual and peaceable possession of the complainant;
ii. There was an act of entry on the land by the accused person(s); and
iii. The accused person(s) entered the land
a. With a show of force; or
b. In a manner likely to cause a breach of the peace; or
c. In a manner likely to cause a reasonable apprehension of a breach of the peace.
The forcible entry into the land is the key ingredient of the offence.

The Black’s Law Dictionary, Ninth Edition, page 718 defined “forcible” entry to be entry “effected by force or threat of force against opposition or resistance”.

Therefore, the prosecution must establish the ingredients above stated in order to secure conviction of the Appellant. From the record of appeal, the evidence led by the prosecution was from the testimonies of PW1, the person it claimed was in actual and peaceable possession of the land in question, PW2 the eye witness who said he saw a pay loader (tractor) sent by the Appellant working on the land and uprooting trees and PW3, the police officer who investigated the case. Also tendered through these witnesses are documentary evidence, namely, certificate of occupancy (exhibit 1) issued in 1983 in favour of the late father of PW1, the Supreme Court’ decision in suit NO: SC/80/2001 between Chief J. E. BABATOLA (FOR AND ON BEHALF OF THE OLORA CHIEFTAINCY FAMILY OF ADO-EKITI VS. OBA ALADEJENA, THE ALAWOROKO (FOR AND ON BEHALF OF THE IWOROKO COMMUNITY, IWOROKO-EKITI), delivered on the 22nd June 2001.

The prosecution also relied on the extrajudicial written statements of PW1 and PW2 made in the course of the investigation as well as the statement of the Appellant (exhibit 5) all in support of the charge. The uprooted branch and root of tree, which they recovered from the land forcibly entered into by the Appellant. There were also photographs taken by the police of the scene (exhibits 11 A-H) in the course of investigation, showing a tractor on the land and felled/uprooted trees.

I note particularly the evidence of PW2, an eyewitness who stated on pages 45-46 of the record of appeal that:
I know the defendants. I know Sgt. Oladele AyodejiI remember sometimes in March 2017. On that day, I was coming from the Drivers’s Union office Ado Ekiti and on getting to the front of the school gate at Iworoko Ekiti at about 10 a.m., I saw a tractor bulldozing the trees that were planed. I knew that PW1 had a foundation on the land. I got down from the vehicle and challenged the workers as to who ordered work on the land. They said it was the 1st Defendant. I tried to stop them from removing the trees. I asked them to go and send for the people who gave them the work. The 1st Defendant eventually came and challenged me for stopping the workers. He stated that the land belonged to him and I disputed it. I then called the police station Iworoko. The officers led by Supol Yinka came. The 1st Defendant came out with a cutlass that day. I tried to get the cutlass from him but he tried to matchet me. I then called PW1. I later called SARS operates (sic). The tractor being used by the workers was on the land. I asked that pictures of the scene be taken, which was done. The police took part of the trees as exhibit. I told the police that the Aladejana had been on the land undisturbed for about 30 years. Kola Aladejana who was the father of PW1 use Gmelina trees to demarcate his land. (Underlining supplied)

The above reproduced testimony of the PW2 was not dislodged under cross examination and was corroborated by the evidence of PW3 as well as the photographs exhibits admitted as exhibit 11 A-H. Under cross-examination, PW2 insisted that he informed the police that the Appellant was present on the land in his statement to the police.

The Appellant has argued that the evidence of PW2 contradicts his earlier statement to the police admitted as exhibit ‘4’ because he did not mention the Appellant by name. I perused this exhibit and I found that the witness stated that, “the workers on the site informed me that it was Egunlusi family that contracted them for the job. I have the picture of the bulldozer made use to destroy the trees on the aforesaid land.” He mentioned in his statement that the Appellant’s family sent the workers. I have not seen any material contradiction between his evidence and the statement to the police.

The Appellant also contended that there is sharp contradiction between the evidence of PW2 in Court and his statement to the police regarding the date the incidence happened. I am of the view that the dates stated in exhibit ‘4’ as the date of the incidence being May rather than March 2017 is not substantial enough to derogate from the facts stated therein, that is, that he saw workers bulldozing trees on the land in possession of PW1. He also stated that the land has been in possession of PW1’s father for over 30 years. I disagree with the argument that the difference in dates is fatal to the case of the prosecution especially when I examined the extra judicial statement of the Appellant, exhibit 5, which also formed part of the prosecution’s case against him wherein he stated that:
The said land belongs to my family Egunlusi Adesemo…. Late Kola Aladejana begged our father to plant maize on the land. There was no time he came back and tells (sic) our father that he wanted to plant trees. Our fathers were so surprise (sic) to see the said trees he claimed he planted. Since the land belongs to our father Egunlusi/Adesemo we have the right to allocate the land who ever we desire…

This statement is a confessional statement to the effect that the trees felled were planted by the father of PW1, and also corroborated the evidence of PW2, PW3 and further supported by exhibits 11 A-H showing uprooted trees and bull dozer on the land. The case of SIMEON LALAPU VS. COP (supra) cited by the Appellant is not apposite to the facts of the present case.

Also, in view of my examination of the evidence led by the Respondent on record, I do not agree with the Appellant that the evidence of PW2 and PW3 amounted to hearsay evidence. The pieces of evidence led by the prosecution supported the charge of forcible entry to the land that was in actual and peaceable possession of PW1. The actual and peaceable possession is proved by exhibit 1, the certificate of occupancy issued to the father of PW1. For this reason, I cannot fault the finding of the trial Court after considering all the evidence led by the prosecution and the learned trial Judge correctly applied the law as laid down by the authorities he relied upon to the facts and reaching the conclusion on page 119 of the record that:
It has been established that the PW1 was in actual and peaceable possession of the land in question, that the defendants entered the land in question and that the manner of entering the land by the defendants was likely to cause the breach or reasonable apprehension of a breach of public peace. The offence of entry contrary to Section 81 of the Criminal Code had therefore been proved beyond reasonable doubt against the defendants.

Upon my perusal of the evidence on record, I am in absolute agreement with the learned trial Judge and apply a stamp of approval to His Lordship’s finding supra.

Now it is the law as embedded in Section 135(3) of the Evidence Act, 2011 that “If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on the defendant.” This has led me to now examine the evidence led by the Appellant on the record to find whether any doubt is created or proved in the evidence of the prosecution that can be resolved in favor of the Appellant. His evidence before the trial Court is contained on pages 64 to 65 of the record and he stated in his evidence in chief inter alia that:
I am Emmanuel Temitoyo Egunlusi. I live at No. 21 Idogun Street, Iworoko Ekiti. I am a trader. I did not confess any of the alleged offences. The land in dispute is our family land and we did not destroy anybody’s property. We worked on our family land. I did not forcibly enter the land of the PW1. The land in front of the Ekiti State University belong to our family Egunlusi Adesemo family. The land of the PW1 is along Ifaki Road. The land in dispute is along called Eliju Agbon farm land. Aladejana family have no land at Eliju Agbon farm land. I did not damage any survey pillars belonging to the PW1. There were no survey pillars there. We did not admit before the PW1 that we damaged his father’s properties. I was a party in the case instituted by the PW1 at the High Court in respect of the land in dispute. I can identify a copy of the writ of summons in the suit…. The suit is still pending. I did not bring cutlass to the land as claimed by PW2. I did not see PW2 where we worked. I only saw him when he brought police officers to my house to arrest me and 2nd defendant. My family do not know anything about exhibit 1. My family had cocoa, kolanut, palm trees on the land and we cultivate same for yam, cassava and cowpea. All these things are still on the land. I built on the land and have been living there more than 12 years ago…. The trees we uprooted from the land were bigger than exhibit 7…. PW1 has nothing on the land in dispute.

The Appellant’s evidence under cross-examination is reproduced below:
My family owned Eliju Agbon Farm land. Egunlusi Adesemo our forefather owned the land. We have documentary evidence of ownership. We have no certificate of occupancy on the land. We are yet to process it. I am not aware of exhibit 1. My family knew nothing about exhibit 1. We fall economic trees on the land in question which was our family land. There was no survey beacons on the land where we worked. Where we worked was a set back.

The evidence of DW2 is a replica of that of the Appellant. The Appellant relied on exhibit ‘12’; the writ of summons filed by PW1, suing for himself and on behalf of the Aladejana family of Iworoko-Ekiti against the defendants, sued in a representative capacity for and on behalf of the Egunlusi family of Iworoko. The suit was registered as NO: HAD/48/2017. The purport of the Appellant’s relying on this Court’s process was to show that his family was sued for the title to the land by PW1, i.e. that there is a pending proceedings regarding the title to the land. I fail to see how the proceedings’ regarding that suit is relevant to or amount to a defence of the charge in this case. If anything, the fact that there is a pending suit in Court in respect of the title to land ought to have deterred the Appellant fromforcible entry on the land till the determination of the suit.

In any event, in view of the phrase contained in Section 81 of the Criminal Code of Ekiti State that for the offence of forcible entry, it is immaterial whether the defendant is entitled to enter on the land or not, the dispute of title to the land evidenced by exhibit 12 cannot constitute a valid defence for the offence proved against the Appellant or even raise any doubt in the case of the prosecution which can be resolved in favour of the Appellant and I so hold.

Consequently, I resolved the two issues against the Appellant, to the effect that I find no merit in this appeal and I dismiss it. I affirm the judgment of the High Court of Ekiti State delivered on the 28th January 2019 in respect of Charge No: HAC/01C/2019.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.

IBRAHIM ALI ANDENYANGTSO, J.C.A.: Having read in draft this judgment delivered by my Noble Lord, B. B. Aliyu JCA in Appeal No. CA/EK/28C/2020 generated from Suit No. HAD/01C/2019, I have no hesitation in agreeing with his reasoning and conclusion that this appeal lacks merit.

​The Appellant in this appeal was charged with offences of conspiracy, forcible entry, malicious damage to crops and boundary and survey marks on the land in possession of Hon. Justice Jide Aladejana and his family members located opposite the Ekiti State University gate, Ado-Ekiti under Sections 516, 81, 451 and 457 respectively of the Criminal Code Law, Cap C16, Laws of Ekiti State 2012 after full trial, the trial Court found the Appellant guilty of the offence of forcible entry, convicted and sentenced him to 6 months imprisonment or an option of fine of N10,000.00 and acquitted and discharged him of the other offences. Dissatisfied with the verdict the Appellant filed a 4 ground notice of appeal before us from which 2 issues were generated, which were adopted by the Respondent to wit:
1) Whether the learned trial judge did not rely on speculations, sentiment and conjectures instead of hard facts in coming to the conclusion that the Appellant was guilty of the offence of forcible entry consequent upon which he was convicted and sentenced to six months imprisonment or option of N10,000 fine. (Distilled from grounds 1 and 2 of amended notice of appeal.)
2) Whether considering the facts and circumstances of this case coupled with the evidence, both oral and documentary placed before the trial Court, the Respondent could be said to have discharged the onus of proof beyond reasonable doubt placed on it to have warranted the conviction and sentence of the Appellant for the offence of forcible entry. (Distilled from grounds 3 and 4 of appeal).

My Lord B. B. Aliyu JCA, has adequately treated the issues, and I can only add a few words of emphasis. Section 81 of the Criminal Code under which the Appellant was charged provides as follows:
81. Any person who, in a manner likely to cause 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. It is immaterial whether he is entitled to enter on the land or not.
From above provisions the ingredients of the offence which must be proved beyond reasonable doubt are as follows:
1) That the accused entered into the land in possession of the complainant.
2) That the land is in actual and peaceable possession of the complainant.
3) That the accused entered the land in such a manner that is likely to cause breach of peace, i.e to say forcibly.
4) That the fact that the accused is entitled to enter the land is immaterial, inconsequential and not a defence.
The above ingredients have been given judicial pronouncement in a number of cases including OKOTIE-EBOH & ORS VS. DPP (1962) LPELR-25138 (SC); C.O.P. VS. OKIOWEI (2019) LPELR-49133 (CA).

 From the Record of Appeal there is evidence elicited from PW1 and PW2 to the effect that the Appellant mobilized workers and entered into the land which was proved to be in possession of Justice Jide Aadejana in the manner that was capable of coursing a breach of peace or a reasonable apprehension of breach of peace. I so hold.

For the above reason and the fuller reasons given by my learned brother B. B. Aliyu, JCA I also dismiss the appeal for lacking merit. I affirm the judgment of the lower Court in Charge No: HAD/01C/2019 delivered on 6/11/2019.

Appearances:

YAKUB DAUDA ESQ. For Appellant(s)

OLAWALE FAPOHUNDA ESQ. ATTORNEY GENERAL, EKITI STATE, WITH JULIUS AJIBARE, D.P.P. EKITI STATE, IBIRONKE ODETOLA ESQ. (P.S.C., MOJ, EKITI STATE), K. S. ADEYEMO ESQ. (P.S.C., MOJ EKITI STATE) AND FAITH TEJUMOLA OLAOLORUN ESQ. (L.O. MOJ, EKITI STATE For Respondent(s)