Eyo Ekpenyong Uko Vs The State (1972)

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T. O. ELIAS, CJN

This is an appeal from the decision of Kooffreh, J., in the High Court, Calabar, by which he convicted Eyo Ekpenyong Eyo Uko of Breaking and Entering the house of one Samuel Eyo Ekanem, contrary to Section 411 of the Criminal Code of the former Eastern Nigeria. Of the two count charge of (1) Breaking and Entering and (2) Stealing, the accused was, at the end of the trial, discharged and acquitted on the second count of Stealing. When we heard the appeal on September 28, 1972, we set aside the conviction and discharged and acquitted the appellant. We now give our reasons for so doing.

The facts are as follows: The appellant in this case has been charged on information along with seven others with the offences of (a) breaking and entering and (b) stealing, committed at Creek Town on or about November 6, 1967, in respect of the house and property of the complaint, Samuel Eyo Ekanem (P.W.1). It happened that, as the Federal forces had captured the township of Calabar from the rebels on October 19, 1967, supporters of the rebels in neighbouring Creek Town, including P.W.l in this case, left Creek Town with his family of 27 for Isong Inyang, a comparatively safe place. He later found his way to Calabar township after its liberation by Federal forces. On the departure of the rebels from Creek Town, their opponents wrecked vengeance on the rebel’s supporters by burning down the latters’ houses or by looting and breaking into them. The house of P.W.l, which had been locked on October 19, 1967 when he left Creek Town, was among those broken into and damaged; and all P.W.l’s belongings found therein were carried away by a group of people. The evidence of P.W.3 was that among the many people who took part in the looting he saw the accused around the house urging others to break into it and take away P.W.1’s belongings. When the situation became calm, P.W.l reported the matter to the police who carried out searches in the houses of named suspects, eight of whom were consequently charged.

The learned trial Judge reviewed the evidence relating to the things which were found in the house of each of the eight accused persons and which were claimed by P.W.1 to be his, and he found all except the seventh accused (against whom the charges were later withdrawn by the prosecution) guilty on one or more of the 9 counts charged. The learned Judge found “the 1st accused, Eyo Ekpenyong Eyo Uko, not guilty of the offence of stealing for which he is acquitted and discharged, but guilty of breaking and entering contrary to Section 411 of the Criminal Code as charged in Count I.” He thereupon sentenced him to a fine of £50 or 6 months I.H.L. Against this conviction the 1st accused has appealed to this Court.

Mr. H. A. Lardner learned counsel for the appellant, asked for and was granted leave to argue the following two grounds of appeal in substitution for the original ones appearing at page 68 of the Record of Appeal:

“1. The learned trial Judge misdirected himself in law in convicting the appellant on Count 1 when there was no evidence in support of the offence charged on that Count.

2. The decision on Count 1 is unreasonable, unwarranted and cannot be supported having regard to the evidence.”

Learned counsel pointed out, quite rightly in our view, that there was no evidence before the lower court in support of the charge of breaking and entering preferred against the appellant, the only evidence as to the whereabouts of the appellant being that of P.W.3 who said he saw him around P.W.l’s house on the night of the incident. No one said that he saw the appellant break and enter into the house in question. The learned trial Judge chose of disbelieve all the prosecution witnesses and to record the following finding:

“The witnesses who came and said that they could not remember those who were there were lying. Each of them in one way or the other had by throwing a glance at the 1st accused in this court showed that they had to lie to get out of a possible reprisal from the 1st accused. In any case both the P.W.3 in his evidence and the demeanour of the 1st accused confirmed positively that the 1st accused was present at the scene of the crime not as an onlooker but as active participant.”

Whatever else the appellant might have participated in, it was not proved to be the breaking an entering into P.W.l’s house. As if this finding were not odd enough, the learned trial Judge permitted himself this observation:

“It is a pity that the charge of stealing against the first accused was drafted to pin him down on a charge of stealing particular items/properties whereas a general charge based on stealing the properties of the 1st P.W. would have sufficed to invoke Section 7 of the Criminal Code to rope the 1st accused securely in.”

It does not seem to us clear how this would have strengthened the case against the appellant.

In order to sustain the charge of breaking and entering under

Section 411 of the Criminal Code of the former Eastern Nigeria, it must be proved not only that the accused did break and enter P.W.l’s house but that he did so with intent to commit a felony therein. Since the learned trial judge first found the accused not guilty of stealing P.W.l‘s things, and as the accused had not been shown to have even broken and entered into the house concerned, it is difficult to see how the charge of breaking and entering preferred against the accused could be maintained.

The learned trial Judge was certain that –

“The motive of the 1st accused was to ruin the P.W.1 or reduce him to the state of penury so that if he did not die by bullet he might die of a broken heart from the losses he has sustained. It was to this end that he saw to the damaging of the house of the 1st P.W. and stealing of his properties.”

Mr. B. Mbrey-Bassey, Senior State Counsel, who appeared for the respondent, conceded, quite rightly in our view that, having regard to the evidence, the decision of the learned trial Judge could not be supported.

We were of the view that the conviction should be set aside.We accordingly quashed it, and discharged and acquitted the appellant.

Other Citation: (1972) LCN/1385(SC)