C.o.p V. Ogor & Ors (2022)

LAWGLOBAL HUB Lead Judgment Report

AMINA ADAMU AUGIE, J.S.C.

The criminal matter that led to this appeal started at the Chief Magistrate Court, Apiapim-Obubra in Cross River State, and it has to do with the breaking of an “ancestral pot’, used by Ovanum People during traditional burial ceremonies. The ten Respondents, as the Accused Persons therein, were alleged to have:

(1) Conspired among themselves to effect an unlawful purpose to wit malicious damage/conduct likely to cause breach of peace.

(2) Conducted themselves in a manner likely to cause breach of peace by trespassing into Ovanum Community Graveyard without authority; and

(3) Willfully and unlawfully damaged one pot valued at N500.00 property of Chief Raymond Ewena Okpa.

According to the four Witnesses that testified for the Prosecution against them, PW1 [Chief Raymond Ewena Okpa], who is the Village Head of Ovanum, was informed about the death of the son of the fourth Respondent (now deceased), and he delegated PW2 [John Egede] and PW3 [Abeng Okera] to carry the said ancestral pot and mark the burial spot for the internment of the deceased child.

​However, PW2 and PW3 were stoned and chased by the Respondents, who had gathered at the fourth Respondent’s house for the burial of his son, and in the process of being attacked with stones, the ancestral pot got broken.

The ten Respondents, who testified themselves, attributed their arrest and prosecution to a chieftaincy dispute between fourth Respondent and PW1. In his judgment delivered on 5/12/2005, the Chief Magistrate, held as follows:

The evidence of the Prosecution Witnesses, especially that of PW2, pointed unequivocally to the fact that on 28/2/2004, the Accused persons and their cohorts created a scene at the spot when PW2 and PW3 approached the 4th Accused Person now deceased to show them where to mark the grave for the burial of the 4th Accused Person’s brother by name- Oyama Onyum. There is copious evidence that the Accused Persons and their cohorts threw stones at PW2 and PW3 which led to damage or destruction of the traditional pot in Exhibit M. From the evidence so far led, I cannot hesitate to infer that the traditional pot was damaged as a result of the conduct of the Accused persons. No better inference can be drawn than this. After all, the offence of conspiracy has a hub. It does not mean that all the Accused persons must be present at the same time and spot. A person can be anywhere and still match conspiracy. To all intents and purposes, the 1st Accused Person’s house is the hub of this conspiracy. It is not true, as submitted by Counsel that PW2 and PW3 did not lead evidence as to the conspiracy. The evidence of PW2 and PW3 revealed without any equivocation that Accused persons and their cohorts conspired and threw stones at them thereby damaging the traditional pot and chasing them away. None of these Prosecution Witnesses changed his stand under cross-examination and I am bound to believe them. – I hold that the Prosecution has proved its case in all the Counts beyond reasonable doubt in accordance with Section 138(1) Evidence Act Cap 112. I find all the Accused Persons Nos 1 to 10 guilty as charged and I convict all of them as charged.

They were all “cautioned and discharged” on Counts I and II and on Count III, the ten of them were each sentenced – “to 2 years I.H.L. or pay N2000 as fine”. The Chief Magistrate also ordered that “all the convicts are bound over to keep peace for 7 years without any Surety”. They then appealed to the High Court, Calabar, in its appellate jurisdiction, wherein they complained inter alia that the Chief Magistrate erred in convicting them for an offence under Section 249(d) of the Criminal Code, when the place where the alleged offence took place was not proved to be a public place, but the private residence of the fourth Accused. Section 249(d) of the Criminal Code – Laws of Cross Rivers State, provides –

Every person who, in any public place, constitutes himself in a manner likely to cause breach of the peace shall be deemed to be idle and disorderly persons, and shall be guilty of a simple offence and shall be liable to imprisonment for one month.

The High Court agreed, and it held as follows in its judgment of 24/6/2009 –

The main Count here is Count 2 – Even the Respondent reproduced the testimony of PW1 thus – “We do not have any graveyard, and whenever any death occurs that place would be marked graveyard”. As if that is not enough PW3 said – “When I approached the Chief to give me a burying place, the Chief gave me somebody, who accompanied me to the compound of the 4th Accused. I now accompanied the 4th Accused Person to show me where to measure the grave”. l, therefore, agree with Appellants’ Counsel that indeed there is no place in existence called Ovanum Community graveyard, and if there is no such graveyard, could there, therefore, be any trespass into same and causing a breach of peace thereat? In my view, the answer is in the negative, as you cannot put something on nothing and expect it to stand – This means that there is no way Counts one and two could have been proved in the lower Court for that Court to have convicted the Appellants therein. Their convictions on those two Counts cannot stand and is accordingly set aside. The reason being that the finding of fact by the lower Court is perverse in consequence of which a Court of Appeal like this one, can interfere.

It also set aside their conviction on Count III, and then concluded as follows: