Commissioner of Police V. Eme Ogbajue Otosi & Ors (1997)
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KATSINA-ALU, J.C.A.
On the 4th day of March, 1987, the respondents and one Ndukwe Ogbonnaya were arraigned, on a two count charge, before the Imo State Magistrate’s Court sitting at Umuahia before His Worship Chief Magistrate H.N. Nsofor. The first count was that on the 17th day of December, 1985, at Amabo Okoko Item, in the Bende Magisterial, District, the respondents and the sixth accused conspired with one another to commit felony, to wit, stealing, contrary to Section 516A of the Criminal Code as amended by Section 3(a) of Edict No.5 of 1971. The second count was that on the same date in the aforesaid Magisterial District the respondents and the sixth accused person stole palm fruits valued at N200.00 property of Ibina Igbere Community. Each of the respondents and the sixth accused pleaded not guilty to the two counts.
Six witnesses testified for the prosecution. However, before the prosecution closed its case the 6th accused person, Ndukwe Ogbonnaya, was discharged by the court on the 3rd of February, 1989 following an application by the prosecution to withdraw the charge against him. The respondents gave evidence in their behalf and each adopted his statement to the police.
The learned trial Chief Magistrate delivered his judgment on the 17th day of March, 1989 and found each of the respondents guilty on both counts and sentenced the 1st and 3rd respondents each to 9 months imprisonment with hard labour on each count and sentences were ordered to run concurrently. The 2nd, 4th and 5th respondents were cautioned and discharged and were bound over for 12 months.
The respondents were dissatisfied with the judgment and consequently appealed against their convictions to the Imo State High Court sitting at Umuahia and presided over by Njiribeako, J.
On the 18th day of January, 1990 the court below allowed the appeal of the respondents, set aside their convictions and sentences and acquitted and discharged them on each count. This appeal by the Commissioner of Police is against that judgment
Although the appellant filed 10 grounds of appeal only four were argued. These are Nos. 2, 3, 7 and 9. This means that grounds 1, 4, 5, 6, 8 and 10 have been abandoned. Grounds 2, 3, 7 and 9 read as follows:
“2. The lower court erred in law by reversing the findings of fact made by the learned trial Chief Magistrate without showing that the findings were perverse and not the proper exercise of judicial discretion.
- The learned appeal Judge erred in law by holding that Section 23 of the Criminal Code, the defence of right made in good faith, availed the defence.
- The learned appeal Judge completely misdirected himself when he observed: “There is therefore no doubt that the learned Chief Magistrate relied very heavily on the evidence of P.W.4 the licensed surveyor and the plan, exhibit ‘C’. Senator Anah, learned Senior Advocate for the respondent was of the same view in his submission before me.
- The learned appeal Judge completely misdirected himself by making the following findings:-
“In the light of the evidence of P.W.6 and the statements he obtained from the appellants exhibits D-D4, and also in the light of that part of the evidence of P.W.1 which the learned trial Chief Magistrate omitted in his summary of P.W.1’s evidence (which I have already pointed out) it is easy to see that the facts which were before the learned trial Chief Magistrate led to the inescapable inference of a bona fide claim by the accused persons of the palm trees they harvested and therefore a defence under Section 23 C.C. applies. It was even more-so when he described the area where the accused cut the palm fruits as ‘no man’s land”.
Both parties filed their respective briefs of argument which they adopted at the hearing of this appeal.
Based on the grounds of appeal argued the appellant formulated the following issues for determination in this appeal:
“(i) Whether the inferences drawn by the appeal Judge from facts proved before the trial Chief Magistrate were correct
(2) Whether the appeal Judge was right in law in reversing findings of facts proved before the trial Chief Magistrate without showing that those findings of fact were wrongly applied to the circumstances of the case or that the inferences drawn from the facts were erroneous or that the findings of fact were not reasonably justified by credible evidence.
(3) Whether a bona fide claim of right under Section 23 of the Criminal Code, based on dishonesty can succeed.
(4) Whether a bona fide claim of right under Section 23 of the Criminal Code can succeed when the evidence in support has been rendered unreliable due to material contradictions.
(5) Whether the judgment of the trial Chief Magistrate can remain the same if the evidence of P.W.4 exhibit ‘C’ and all the references in the judgment to P.W.4’s evidence are disregarded.”
For their part, the respondents formulated two issues for determination which read:
“(1) Is the defence of claim of right made in good faith available to the respondents in this case”
Did the learned High Court Judge misdirect himself either in law or in fact in his judgment and was any such misdirection material to affect the judgment?”
The two issues raised by the respondents are more concise and germane. I shall therefore treat this appeal on the basis of the respondents’ issues.
The first issue is whether the defence of right made in good faith avails the respondents in this case. This issue covers appellant’s issues 3 and 4. In dealing with this issue, it was submitted on behalf of the appellant that the conduct of the respondents must be taken into account. So also the question whether the respondents had honest belief that they had a right to harvest the palm fruits. It was contended that the learned trial Chief Magistrate found as a fact that the attitude of the respondents showed that they were not honest in their claim. It was pointed out that the respondents were aware that exhibit ‘A’ conferred title on them to a limited area verged yellow. It was further pointed out that the area on which the respondents harvested the palm fruits did not fall within the area verged yellow in exhibit ‘A’.
It was also the contention of the appellant that a mere claim of right which is not honestly made cannot be a bona fide claim of right Reference was made to Section 13 of the Criminal Code. Reliance was also placed on the case of Sunday Dabierin & Anor v. The State (1968) 1 All NLR 138. It was submitted that the act of the respondents was more of an act of stealing rather than one done in pursuit of an honest claim of right of ownership of the land.
For the respondent it was submitted that the case of the complainants rested on the Supreme Court judgment – Exhibit ‘A’ and the ownership of land derived from it. The complainants, it was pointed out, did not base their case on the fact of their ownership of the plantation as distinct from the land.
It was the case of the respondents that they owned the land where they harvested the palm fruits. It was also their case that the palm trees belong to them. The position, the respondents contend, is one of a Claim and counter-claim. It was submitted that in these circumstances the learned Judge was right when he held that a claim of right under Section 23 of the Criminal Code availed the respondents.
It has been stated and re-stated on countless occasions that in criminal trials the burden is on the prosecution to prove the case against the accused person beyond reasonable doubt. In other words, it is the duty of the prosecution to establish the guilt of the accused person. The burden never shifts. This means that the accused person is under no obligation to prove his innocence. See Aruna v. The State (1990) 6NWLR (Pt. 155) 125; Mbenu v. The State (1988) 3 NWLR (Pt. 84) 615; Akinfe v. The State (1988) 3 NWLR (Pt 85) 729.
Let us examine the evidence led by the prosecution. The prosecution called six witnesses. P.W.I was one John Ibekwe. In his evidence under cross-examination he stated:
“We claim the land as our own. The accused also claim the land as theirs. The case has reached the Supreme Court and we won.”
P W 2 was one Ojukwu Igu. He testified thus: –
“Our people obtained judgment against the people of the accused in Suit No. AC339/64 – Njoku Ukegbu & 2 ors v. Agwu Nweke & 2 ors. This is the judgment – tendered’ and marked Exhibit’ A’. After Exhibit ‘A’ the accused entered this land again…”
Under cross-examination this witness said:
“Our people did not sue the accused people for title. The accused are not saying that the area they harvested palm trees is not within the area the Supreme Court awarded them.” (Italics for emphasis)
In the course of his judgment, the learned trial Chief Magistrate found as a fact that the complainants did not win the case in Exhibit’ A’ in the Supreme Court. He also found as a fact that the area in which the offence was committed was no man’s land. He said:
“P.W.2 in his evidence told the court that they sued the accused people and obtained Judgment against them. He tendered Exhibit ‘A’ to buttress his case. Exhibit ‘A’ does not show that the complainants won the case. Rather it shows that the accused won part of Igula verged yellow in Exhibit ‘A1’ and Exhibit ‘A2’. The rest of the area not so verged yellow belongs neither to the accused nor the complainants.”
In effect the learned trial Chief Magistrate held that the rest of the area not verged yellow was no man’s land. Although the Supreme Court did not award this area to either party, it is manifest from the record that both parties still laid claim to it. It is also in evidence that both parties had a palm plantation in the area. See the evidence of P.W.6 the Investigating Police Officer. It is for this reason that I agree with the learned counsel for the respondents and the learned Judge that a defence of bona fide claim of right under Section 23 of the Criminal Code availed the respondents.
One last point. It is plain to me that the charge of stealing has not been established beyond reasonable doubt as required by law. This is so because P.W.2 in his evidence stated clearly that the area the respondent’s harvested palm fruit was awarded to the respondents by the Supreme Court.
Since the record has not been challenged, it must be assumed that P.W.2’s evidence in cross-examination was correctly recorded. The case against the respondents should have been dismissed at that stage.
In the light of the foregoing, I do not consider it necessary to deal with the remaining issue in this appeal. This appeal lacks merit and it is accordingly dismissed. I affirm the decision of Njiribeako, J., given on 18th January, 1990.
Other Citations: (1997)LCN/0315(CA)
