Commissioner Of Police V. Mr. Emmanuel Amuta (2017)
LAWGLOBAL HUB Lead Judgment Report
KUMAI BAYANG AKA’AHS, J.S.C.
The Attorney-General of Anambra State in exercise of the powers conferred on him by Section 77(1)(a)(iii) of the Magistrates Court Law, Cap 88 Vol. 6 Revised Laws of Anambra State of Nigeria 1991 granted his fiat to Obi Akpudo Esq to prosecute Lawrence Arinze and Emmanuel Amuta in Charge No MID/506C/97. On 16/3/2006 the two accused were arraigned on a four count amended charge to which they pleaded not guilty. The amended charge read thus:-
- That you Lawrence Arinze (M) and Emmanuel Amuta (M) on the 17th day of April 1995 at Akuora Umuota Village Obosi in Idemili Magisterial District conspired with one Obed Afamefuma (now deceased) to commit a misdemeanor to wit, forcibly (sic) entry on land which is in the actual and peaceable possession of Ernest Nwofia and thereby committed an offence punishable under Section 496(a) of the Criminal Code Cap 30 Vol. 1 Laws of Anambra State of Nigeria 1986.
- That you Lawrence Arinze (M) Emmanuel Amuta (M) and Obed Afamefuna (now deceased) on the same date, time and place in the aforementioned Magisterial District in a
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manner likely to cause a breach of the peace or reasonable apprehension of the breach of the peace entered on a piece or parcel of land which is in actual and peaceable possession of Ernest Nwofia (M) and thereby committed an offence punishable under Section 115 of the Criminal Code Cap. 36 Vol. 1 Laws of Anambra State of Nigeria 1986.
- That you Lawrence Arinze (M) and Emmanuel Amuta (M) on the same date and place in the afore-mentioned Magisterial District willfully and unlawfully damaged a shovel valued N1,600.00 (One thousand, six hundred naira) property of Ernest Nwofia and thereby committed an offence punishable under Section 415(1) of the Criminal Code Cap. 36 Laws of Anambra State of Nigeria Vol. 1 1986.
- That you Lawrence Arinze (M) and Emmanuel Amuta on the same date and place in the afore mentioned Magisterial District with intent to intimidate or annoy one Ernest Nwofia in a manner likely to cause a breach of the peace entered on a piece or parcel of land which is in actual and peaceable possession of the said Ernest Nwofia and therein stopped workers already working for him in the said land from continuing with their work and thereby
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committed an offence punishable under Section 120(a) of the Criminal Code Cap. 36 Laws of Anambra State of Nigeria Vol.1 1986″.
The accused pleaded not guilty to the amended charge. The prosecution opened its case and called four witnesses. The fourth witness Romanus Amuju, was the contractor that the complainant engaged to construct the fence which led to a fracas between the complainant and the accused. He did not conclude his evidence and all efforts to get him conclude his evidence including the issuance of a bench warrant against him was unsuccessful. At the close of the prosecutions case, the accused made a no case submission which was overruled by the Chief Magistrate, Obosi. The accused were ordered to enter their defence.
The accused were dissatisfied with the order and appealed against it to the High Court of Anambra State sitting in its appellant jurisdiction. On 24/3/2009 the High Court sitting on appeal held while dismissing the appeal that the prosecution made out a prima facie case of forcible entry under count II that called for an explanation from the accused/appellants as to how they ended up in a fight if they entered the
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premises as Peace makers. The accused/appellants further appealed to the Court of Appeal Enugu with leave of the High Court. The Court of Appeal Enugu delivered its judgment on 4/5/2011 and in a unanimous decision it allowed the appeal and set aside the judgment of the appellate High Court. In the lead judgment of Augie JCA (as she then was) she held as follows at page 208 of the records:-
“The Respondent complied with the order, and did dispense of PW4, which meant that Pw4 remained hanging in the air, and even worse, a bench warrant for the arrest of PW4 was hanging with it. Obviously, the trial Magistrate Court and the appellate High Court did not fully grasp the effect of this state of affairs on the Respondents case, which is why both could insist that the Appellants have a case to answer. Can the Respondent actually beat its chest and say that it made out a case for the Appellants to answer in the circumstances I think not. As I said, a submission of no case to answer will be successful where the evidence has been so discredited or is so unreliable that no reasonable Court would convict on lt. PW4 did great damage to the case for the prosecution,
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and the only conclusion that can be reached is that the Appellants have no case to answer, and they must be discharged. Thus the appeal succeeds and is allowed. The decision of the Lower Court in its judgment delivered on 24th May, 2009 is set aside. The no case submission is upheld and the Appellants are discharged”.
It is against this judgment that the appellant has appealed to this Court. The Notice of Appeal containing three grounds of appeal was filed on 3/8/2011 from which the appellants counsel distilled the following two issues for determination:-
”(1) Whether the Court of Appeal misapplied the principles upon which a no case submission may be made and upheld in the circumstances of this case (Ground 2).
(2) Whether the Court of Appeal was correct in setting aside the judgment of the Lower Court without considering the totality of the evidence led by the prosecution before the trial Court (Grounds 1 and 3).”
On his part the respondent through his counsel formulated a sole issue for determination as follows:-
”Whether the Court of Appeal was right in its holding that the prosecution did not make out a prima facie case that
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require the Respondents to open their defence”
I agree with the respondent that only a sole issue has been generated for determination in this appeal which is issue no. (ii) in the appellant’s amended brief filed on 8/5/2015 but was deemed filed on 29/2/2016.
The appellant’s contention is that it made out a prima facie case requiring an explanation from the respondents but the Court of Appeal only considered the inconclusive evidence given by PW4 without looking at the whole case presented by the prosecution to arrive at its judgment. The respondent on his part is arguing that the Court of Appeal was correct in coming to the conclusion that the no case submission was properly raised since the prosecution failed to establish a prima facie case which required the respondents to enter their defence.
It is now settled by a long line of judicial authorities since Ibeziako v. C.O.P. (1963) 1 All NLR 61 that a submission of no case to answer may be properly made and upheld in the following circumstances:-
(i) When there has been no evidence to prove an essential element in the alleged offence either directly, circumstantially or
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inferentially;
(ii) When the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable Tribunal can safely convict on it. See: Okoro v. State (1988) NWLR (Pt.94) 255. Adeyemi v. The State (1991) 6 NWLR (Pt.195) 1: Abogede v. The State (1996) 5 NWLR (Pt.448) 270 and Suberu v. The State (2010) 1 NWLR (Pt.1176) 494.
In the ruling by the Chief Magistrate on the no case submission, the Court found that a case has been made out against the accused persons in counts 1-3 of the charge and that the prosecution has failed to make out a case against the accused persons in count 4 of the charge. The High Court sitting on appeal limited its finding of a prima facie case being made out against the accused in counts 2 and 3.
I venture to state that there has been a shift in the rigid adherence to calling on an accused to enter into his defence once a prima facie case has been established against the accused as was done inIkomi v. State (1986) 3 NWLR (Pt.28) 340.
In Abacha v. State (2002) 11 NWLR (Pt.779) 437 Belgore JSC (as he then was) in the majority judgment (with Ejiwunmi JSC,
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dissenting) disagreed with the opinion by the Court of Appeal that the appellant had taken a premature step of challenging the indictment when he could await the time for no case submission to move that he had no case to answer and that such challenge to quash an information should not be encouraged. He said at page 485:-
With the greatest respect, in a democratic setting, as we now are, with no legislative ouster of Courts jurisdiction, all perceived abuses should be tested if confidence is to be preserved for Courts as final arbiter in peoples rights. The Courts have inherent power to present abuse of their process by any of the parties, whether plaintiff or defendant, prosecution or defence, so that as long as democratic process exists nobody will have his rights curtailed.
All power to settle issues between parties is vested in Courts and Court must be vigilant that genuine issues and controversies are settled so that no accused person will be oppressed either directly or indirectly through act of prosecution; if not we shall have persecution in place of prosecution.
With this admonition in mind it becomes imperative to
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examine the evidence adduced in this case in order to determine if actually the prosecution made out a prima facie case requiring the accused (now respondent) to enter into their defence.
The prosecution called four witnesses. PW1, Ernest Nwokoye Nwofia was the complainant and gave evidence as follows:-
“On 17/4/95 in my premises at Umuota Village Obosi, I hired a group of workers, 7 of them in number headed by a contractor named Romanus Amufia to fence in an opening at the back of my premises because hoodlums and thieves had invaded me because of that. As the workers assembled and I mobilized them with tools and what to work with. When they started digging ground, one Mr. Afamefuna now deceased with members of his family came out from their compound besieged the area where the work was going on and tried to stop the worker from going with work. Then I insisted that they must continue. As they were unable to stop the workers on their own following my insistence, deceased sent for the 2 accused persons now in Court, they came and joined the deceased and members of his family and engaged the workers in a serious battle. The 1st accused told the workers
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to disappear and live the scene and that he was the chairman and that he had settled the matter. At that state, he damaged a shovel belonging to me valued N1,600.00, one of the workers was wounded and the place became rowdy as people rush in and at stage the situation was beyond my control. Finally the accused persons succeeded in dispersing the workers. I had to go to the police station to make a report when the police arrived, they were able to meet with vendor who sold the land to me at the scene. The vendors are Edmund Iyile and Emenike Obi. On the arrival of the Police they were able to meet the late Obed Afamefuna at the scene as the 2 accused had ran away likewise the workers. The police invited me to their office at about 7.30am and when I got there I meet the 2 accused persons and the deceased and we all made statement to the police and we left.
When PW2 was asked about what happened on 17/4/1995 he said:-
“I was at the house of the PW1 because he asked me to erect a wall fence at the back of his compound because he is not always at home and I discovered they had a dispute there and I so advised him to get a contractor to do the job so that I will supervise the work . I told him to look for one
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Romanus Amuju and bring him. He called the Romanus on 17/4/1995 who came to start work but I was there earlier and while the worker brought out his (sic) working tools and was mixing the cement while the working was going the members or Afamefuna family at home all came and stop the workers from going on with the work. While this was going on, the 1st accused person came out and told the person mixing the cement to stop work. In the process the 2nd accused came out and asked the person digging the foundation for wall fence to stop work. Romanus Amuju told his workers that came with him to stop work and the PW1 told them to continue the work because he had paid him for the job because he gave him N20,000.00 in advance. While the uproar continued I advised the PW1 to stop work He then left and I went home.
When PW2 was cross-examined he said that 1st and 2nd accused live very close to the house of PW1.
PW3 was the Police Officer who investigated the case after PW1 had lodged his complaint and he recorded the statements of PW4, Obed Afamefuna and Emmanuel Amuta. The statements were admitted in evidence as Exhibits C, D and E respectively.
The
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evidence of PW4 was that PW1 had asked him to erect a small fence wall behind his house but he did not do the work because when he went to the site the person claiming ownership of the land asked him and his workers not to work because there was a dispute on it and so he packed his tools and left with his men. When he was referred to Exhibit “C” and the portion of the statement where he said he saw the accused persons and others at the scene he said:-
“When I started the work I didn’t know anybody but the complainant told me what to tell the police which they recorded”.
After making this statement the prosecuting counsel applied for an adjournment. PW4 never concluded his evidence before the prosecution closed its case.
The cross-examination of PW1 revealed that he the complainant had a land dispute with Obed Afamefuna and a suit was filed at the High Court and given suit No. 0/822/96 which was renumbered HID/510/97. Obed Afamefuna and the accused are from the same family.
The cross-examination is reproduced as follows:-
“Q. You know Ogbueshi Obed Afamefuna
Yes sir, I know him
Q. He is the person you have a land dispute
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with
Yes, at the High Court and not in this case.
Q. Do you know the suit number of the case
The suit number was 0/822/96 and with the creation of new decision it became HID/510/97.
Q. Tell the Court why you sued Obed there in the suit
Because he trespassed into my premises without authority.
Q. Where is the said premises
Where I am living now and is my compound.
Q. Did Obed state in his defence why he trespassed into your land
I wouldnt know cause I am not a lawyer.
Q. Is that case still pending in Court
Yes sir.
Q. If Obed is dead why should the case still been in Court
I wouldnt know.
Q. You are member of a Customary Court
Yes, member for Oba Customary Court.
Q. On the 17/4/95 Obed stopped you from trespassing into his land.
It is not true.
Q. What did he do on that day
On that date the late Obed and the 2 accused persons with the children of Obed besieged my compound early on the said date as early as 6.45am and stopped the workers and a contractor I engaged to work for me and they were accordingly arrested by the police and charged to
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Court.
Q. The late Obed has a common boundary with you
Yes Sir.
Q. Mr. Obed does not have any land in other place where both of you have a common boundary
I dont know.
The evidence reproduced above shows that Obed Afamefuna and the accused were exercising a bona fide claim of right resisting the effort by the PW1 to erect the wall fence which should negative the intention of criminal trespass. See: Nwakire v. C. O. P. (1992) 5 NWLR (Pt.241) 289. Although this Court recently decided by a majority of 3-2 in Spiess v. Oni (2016) 14 NWLR (Pt.1532) 236 that where there is lack of good faith, the bona fide claim of right will not avail a person charged with criminal trespass. The reasoning in the majority decision is that law is meant to provide peace, security, protection, concord and purposeful co-existence amongst citizens and no reasonable society will encourage resort to self-help for whatever reason. I still remain of the strong conviction that the legal position regarding the bona fide claim of right where ownership is contested, the burden of proving mens rea must be discharged by the prosecution and Nwakire v. C. O. P.
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remains good law.
Coming back to the appeal, it was submitted that the Court of Appeal was wrong to set aside the judgment of the Lower Court without considering the totality of the evidence led by the prosecution before the trial Court. I have produced extenso the evidence led, it is only the complainant who said that the accused/respondent besieged his compound and attacked the workers and also damaged the shovel valued at N1,600.00. He never produced the damaged shovel before the Court. No other witness testified that anybody was injured or working tool such as shovel was damaged. PW2 who advised the complainant to look for Romanus Amuju, the contractor who will do the work while he (PW2) supervised the contractor told the Court that Obed Afamefuna and the respondents only disrupted the mixing of the cement and digging the foundation for the wall fence.
PW4 who brought the workers to the disputed land said nothing about either himself or any of the workers being manhandled. He told the Court that it was the PW1 who told him what he should say when Exhibit “C” was being recorded. No evidence was adduced to prove the essential elements of the
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offences in counts 2 and 3 on which the Court below ruled, there was prima facie case requiring the respondents to enter into their defence.
The whole trial from the issuance of the fiat by the Attorney-General to the arraignment of the respondents leading to the proceedings in the Chief Magistrate’s Court and the High Court sitting on appeal was a farce. This is a clear case of the PW1 using his position as a member of the Customary Court, Oba in the Idemili Local Government Area of Anambra State to harass the late Obed Afamefuna and the respondents who were his relations from asserting their claim to the disputed boundary between them. Since action had been instituted in the High Court, the appellant should have exercised patience to await the outcome of the case instead of forcefully taking over the land.
The Court below saw through the charade and was right in reaching the conclusion that no prima facie case was made out requiring the accused to enter into their defence.
Accordingly I find no merit in the appeal and it is hereby dismissed.
The judgment of the Court of Appeal, Enugu in Appeal No.CA/E/316/2001 delivered on 4th May, 2011 is hereby
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affirmed. Appeal is dismissed.
SC.117/2012
