Sunny Tongo & Anor V Commissioner Of Police (2007)

LAWGLOBAL HUB Lead Judgment Report

A. OGUNTADE, J.S.C

This criminal appeal has a long history. On 25/02/92, the appellants were charged before His Worship Magistrate E.I. Ikponmwonba (Mrs.) of Edo State Judiciary sitting at Benin City. The charge brought against them reads: ‘That you Sunny Tongo (m) and Helen Tongo (f) on or about the 16th day of February, 1991 at Plot 88, 2nd Gallick Avenue, Off Siluko road, Benin City in Benin Magisterial District, willfully and unlawfully damaged block wall fence valued N2,000.00 property of Madam Ehisiemwen Odiase (f) and thereby committed an offence punishable under section 451 of the Criminal Code Cap. 48 Vol. 2, Laws of Bendel State of Nigeria, 1976.” Each of the appellants pleaded not guilty to the charge. The hearing of the case commenced on 25/05/92. The prosecution called four witnesses after which the appellants’ counsel Mr. A.N.A. Igbinovia made a no case submission on 31/8/92. On 22/9/92, the learned Magistrate in her ruling overruled the no-case submission.

Dissatisfied, the appellants brought an appeal against the said ruling before the High Court sitting at Benin City. On 19/9/95, Edokpayi, J. (as he then was) heard arguments on the appeal and on 26/9/95, dismissed same. Still dissatisfied, the appellants brought a further appeal before the Court of Appeal, Benin City (hereinafter referred to as ‘the court below’). The court below on 14/12/99 in its judgment dismissed the appellants’ appeal. The appellants have now come before this court on a final appeal. Appellants’ counsel filed separate briefs for each of the two appellants. In the first appellant’s brief, the issues for determination in the appeal were identified as the following:

“(1) Whether the appellant can rely on the defence of bonafide claim of right (section 23 c.c.) at the close of the prosecution’s case.(Grounds 1 and 5)

(2) Whether the evidence of the prosecution was discredited such that no reasonable tribunal can rely on it or manifestly unreliable at the close of the prosecution’s case. (Ground 2)

(3) Whether the parameters for prima facie case are one and the same at the consent level (Section 340(2)(b) cpl) and at the close of the prosecution’s case. (Section 286 cpl) (Ground 3)

(4) Whether the prosecution made out a prima facie case. (Ground 4).” From the second appellant’s brief, the issues formulated for determination read thus:

“1. Whether the alibi inured to the benefit of the appellant – Ground 2.

(a) Whether the prosecution established a prima facie case.” The respondent formulated two issues for determination in respect of the 1st appellant and adopted the issues raised by the 2nd appellant. The respondent’s issues are amply accommodated under the appellants’ issues. I do not need to reproduce the said respondent issues. I shall be guided in this judgment by the issues formulated by the appellants. The said issues could be conveniently discussed together. I shall so discuss them. I reproduced earlier the charge brought against the appellants under section 451 of the Criminal Code, Cap. 48 Vol. II of the Laws of Bendel State. The appellants had faced a charge of willful and unlawful damage to property. The contention of the appellants which they have doggedly pushed through all the courts below is that, at the close of the prosecution’s case before the learned Magistrate, a case was not made out sufficiently against the appellants to require them to make a defence. Were the appellants correcting their standpoint I think not.

The evidence before the Court of trial shows that the 1st appellant had sold a parcel of land to the complainant who testified as P.W.1. According to PW.1, she had paid for the land in 1977. PW 1 caused the land to be fenced with a block wall about 1990. On 16/2/91, a Saturday, P.W. went on the land. As to what happened on that day P.W.1. at page 5 of the record of proceedings testified thus:-

“On 16/2/91, when we got there, 1st and 2nd accused person and the neighbours were destroying the fence, I ask him why. He said he was not selling to me again. I asked how many years ago I paid for the land. He said if I had power I should go to court. He said that if the case gets to court, even the child yet unborn will get married before the case is heard. He said he’d tell the court he will pay N2 monthly.

2nd accused person then spat on me with their children. I went home and waited till Sunday. On Monday, when they did not come, I went to arrest them. I reported at Ogida police station. They sent a policeman to follow me. They were at home. 2nd accused person said she would wait for the children from school. 1st accused person was taken to the station. 2nd accused person later came to meet 1st accused person in the station. Yes, he gave me the documents. I will know them.”

It is apparent from the above extract of the evidence of PW.1, that there was evidence that the two appellants were seen by PW.1 destroying the wall fence. Similarly PW.2 testified as to the fact that the appellants were seen destroying PW.1’s wall fence on the land. At page 8 of the record, P.W.2 testified thus:-

“Yes, I remember 16/2/91. On that day, PW.1 and I went to the piece of land by Dr. Ganick Area. We went with 2 labourers for clearing. When we got there, we met accused persons destroying the fence of PW1. It was a block fence. She said she was surprised to see them destroying the fence. I called Ist accused person and asked him why he was destroying the fence. He said he had come to PW1’s house to tell her that he is not selling the land again. He had sold the land to PW.1, for N9,000.00. I asked him if he had told PW.1 before destroying the fence and he said No. My sister said the two labourers should start clearing the land. Then 2nd accused person said they should not and was dragging the shovel from the labourers. So, I called PW.1 and said let us go before there was blood shed. Before we left I asked PW1 if he was the one in PW1 position and someone did this to him, he would like it and he said no. So, I took PW1 and the 2 labourers away.”

PW.3, a soldier testified as to how he had accompanied PW.1 to the 1st appellant to negotiate and pay for the land in dispute. He had also witnessed the measuring of the land with a tape.

PW.4 was the Investigating Police Officer (I.P.O). He had obtained the statement of the 1st and 2nd appellants, which he tendered as exhibits A and B respectively. Now in a portion of his statement exhibit ‘A’, the 1st appellant wrote:

“Then I brought tape to measure the one sold and it was 60ft width instead of 50ft width. I went to one Mr. Joseph Igiebor who is a brother to Madam Ehisienmwen and told him that he should tell her sister that I am not prepared to sell the plot and that she should come and collect her money. Joseph asked me if I am prepared to add N2,000.00 as interest to the money. I said yes. Joseph promised to speak to his sister. Joseph later came to tell me that he told his sister about what we discussed and she refused. About two weeks ago, I personally removed the fence she made to demarcate the plot. I removed the fence because that was not the place the fence supposed to be erected. I did not destroy the blocks. That on 16/2/91 as it was alleged, I, my wife and two others did not destroy fence.”

The 2nd appellant, in her Statement to the Police exhibit ‘B’ said:

“Two weeks ago, when I returned from traveling, I met that my husband has removed the fence Madam Ehisienmwen used to demarcate her plot from our own. That on 16/2/91, while I was in our compound. Madam Ehisienmwen came with four other men through the broken fence, I greeted her and she failed to respond. As she was asking me about the removed fence, I have to send for my husband. When my husband came she asked him about the broken fence and my husband responded that he was the one who removed the fence. My husband said to avoid trouble, she should come and collect her money. At this time she started to shout on us and we later went into our house. On that 16/2/91, I, my husband and two others as it was alleged did not destroy the fence made by Madam Odiase. The fence was removed by my husband about two weeks ago. I did not drag any of her labourer at all. I was arrested and I made statement to the police.”

It is seen from the above extracts of exhibits ‘A’, that there was no denial from the 1st appellant that he had destroyed the wall fence on the land he sold to PW.1. He claimed to have done so because the wall fence was not erected on the land he had sold to the PW.1. The 2nd appellant on the other hand claimed that she had traveled somewhere when her husband destroyed the wall fence.

There is no doubt that at the close of the case for the prosecution there was evidence from PW.1 and PW.2 that the appellants had been seen destroying PW.1’s wall fence. The statements made by the appellants would also appear to have confirmed the testimony of PW.s’ 1 and 2 that the 1st appellant destroyed the wall fence. The 2nd appellant raised an alibi. The alibi however needed to be set against the evidence of PW.s 1 and 2, that she was seen destroying the wall fence.

The trial magistrate in her ruling on the no-case submission made by the defence counsel said: “From the above, the damage must not only be unlawful but also malicious. Learned counsel is relying on section 23 Criminal Code for the prosecution to avail the accused person, it must be shown that the accused person damaged the property in good faith under a claim of right or under a genuine mistake. The question whether there is a mistake or a genuine claim of right will be determined upon the view of the facts of the case. In this case it is clear that the damage was not a mistake. So was it in good faith under a claim of right From the evidence before me, the 1st accused person sold land to PW1. and she built a fence on it presumably to secure it. At least 2 years later the accused person brings down the fence on the ground that he does not want to sell as she had taken 10ft from his land.

The destruction of a block fence because the other has left of ones land cannot in my view be considered a reasonable way in which to prevent unauthorized occupation of the land. Especially since accused person had sold and collected money on that land and this had lapsed since then. Legal means therefore, is a way available to bring PW.1’s occupation to an end. Refer to Fashion Iroaghon v. C.O.P. (1964) NMLR Pg. 48 where it was held that:- ‘Once the evidence for the prosecution revealed that there was a genuine dispute as to ownership or at least the control of the land, the prosecution has to succeeded in discharging the basis of proof showing that the act was done unlawfully. In the case at hand, there is no evidence of any genuine dispute before me. I hold therefore that the elements of the offence under section 415 have been established. At this stage the court is not considering the issue of sufficiency of evidence for conviction but rather whether the prosecution has made out a prima facie case requiring at least some explanation from the accused person. I have taken the whole evidence of the prosecution into consideration and I am satisfied that a prima facie case has been made out against the accused persons requiring them to be called upon to make their defence. ”

The appellant High Court and the court below affirmed the ruling of the trial court. It seems to me that appellants’ counsel has not fully adverted his mind to the circumstances when a no-case submission may be upheld by the court. In Ajidagba v. I.G.P. (1958) 3 FSC 5 at 6: (1958) SCNLR 60 at 62, Abbot F.J. discussed the import of a no-case submission in relation to section 286 of the Criminal Procedure Act thus: “It is plain from the language of that section (particularly when one looks at the first two lines of the following section) that a Magistrate is under a duty to discharge an accused person if he finds that no prima facie case has been made out against him. We have been at some pains to find a definition of the term prima facie case.” The term, so far as we can find has not been defined either in the English or in the Nigerian courts. In an Indian case, however, Sher Singh v. Jitendranathscn (1931) I.L.R 59 Calc. 275 we find the following dicta:- ‘What is meant by a prima facie (case) It only means that there is ground for proceeding … But a prima facie case is not the same as proof which comes later when the court has to find whether the accused is guilty or not guilty.’ (per Grose J.) and ‘the evidence discloses a prima facie case when it is such that if uncontradicted and if believed it will be sufficient to prove the case against the accused’ (per Lort-Williams, J.) …. A decision to discharge an accused person on the ground that a prima facie case has not been made against him must be a decision which, upon a calm view of the whole evidence offered by the prosecution, a rational understanding will suggest; the conscientious hesitation of a mind that is not influenced by party, preoccupied by prejudice or subdued by fear.”

In Daboh & Anor v. State (1977) 5 Sc. 197 at 209 this court per Udoma JSC discussed when a no-case submission may be upheld:

“Before, however, embarking upon such an exercise, it is perhaps expedient here to observe that it is a well known rule of criminal practice, that in a criminal trial at the close of the case for the prosecution, a submission of no prima facie case to answer made on behalf of an accused person postulates one of two things or both of them at once.

Firstly, such a submission postulates that there has been throughout the trial no legally admissible evidence at all against the accused person on behalf of whom the submission has been made linking him in any way with the commission has been made linking him in any way with the commission of the offence with which he has been charged, which would necessitate his being called upon for his defence. Secondly, as has been so eloquently submitted by Chief Awolowo, that whatever evidence there was which might have linked the accused person with the offence has been so discredited that no reasonable court can be called upon to act on it as establishing criminal guilt in the accused person concerned; and in the case of a trial by jury, that the case ought therefore to be withdrawn from the jury and ought not to go to them for a verdict. On the other hand, it is well settled that in the case of a trial by jury, no less than in a trial without a jury, however slight the evidence linking an accused person with the commission of the offence charged might be, the case ought to be allowed to go to the jury for their findings as Judges of fact and their verdict.Therefore, when a submission of no prima facie case is made on behalf of an accused person, the trial court is not thereby called upon at that stage to express any opinion on the evidence before it. The court is only called upon to take note and to rule accordingly that there is before the court no legally admissible evidence linking the accused person with the commission of the offence with which he is charged. If the submission is based on discredited evidence, such discredit must be apparent on the face of the record. If such is not the case, then the submission is bound to fail.” Now, looking at the evidence of PWs, 1 and 2, could one say that there was no evidence linking the 1st and 2nd appellants with the crime alleged I think not. It may well be that when, at the conclusion of the case for the prosecution and the defence, the sufficiency of the evidence called through prosecution witnesses, and their credibility may become the crucial determinants of the guilt or otherwise of the appellants, that would not be a reason to cast overboard the testimony of PW.s 1 and 2 who had testified that they saw the appellants destroying the was fence of P.W1. As for the alibi raised by the 2nd appellant, this would cease to be of a consequence if the court accepts the evidence of PWs.1 and 2. See Fatoyinbo v, Attorney-General, Western Nigeria (1966) WNLR 4 at The other issue that I need to briefly react to is whether or not the factors relevant in the consideration of a no-case submission are the case with those to be considered when the State is seeking the consent of the court to bring information against an accused. Appellants’ counsel raised this question as the third issue. The issue however is irrelevant to the issue whether or not a prima facie case was established against the appellants by the prosecution. It is not relevant issue in this appeal and I refuse to be drawn into a discussion of it. I am satisfied that the no-case submission made by the appellants was correctly rejected by the three courts below. This appeal has no merit. It is dismissed. I only need add that the 1st appellant when he made his first appearance before the trial court on 25/2/92 was 69 years old. Now he is 85. The 2nd appellant is 62. Appellants’ counsel ought to have borne in mind the health risks involved in committing the 1st appellant to a fresh trial after embarking on an appeal which manifestly was devoid of any merit. Appeal dismissed.

SC.105/2000