Chief Festus Okotie-eboh & Ors V. Director Of Public Prosecutions (1962)
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The three appellants were among the 9 accused persons convicted in the High Court at Sapele in the Western Region of the offence of forcible entry contra Section 74 of Cap. 28 of the Laws of the Western Region. The charge reads as follows:
that….. on the 18th day of December, 1960, at Sapele, in Warri Judicial Division, did in a manner likely to cause a breach of the peace enter on land situate at Block 3 Plot 3 Macpherson Road, Sapele, which land was in actual and peaceable possession of Orororho Machine and others and thereby committed an offence contrary to Section 74 of Cap.28 of the Laws of Western Region of Nigeria.
In a considered judgment, the learned Judge found each of the accused persons before him guilty of the offence and ordered them to pay a fine of £10 each or one month in default. He then made an order in the following words:
In addition, I order that the 1st accused who authorized the demolition of the building, do within 14 days replace the corrugated iron sheets, windows, and doors removed from it at Block 3, Plot 3 Macpherson Road, Sapele on 18/12/60 so as to put the premises back in the condition it was immediately before the demolition took place, and in default two months’ imprisonment.
Only the three appellants have appealed against their conviction and sentence and the 1st appellant has also appealed against the additional order made against him by the learned Judge.
The facts which led to the prosecution are shortly as follows: The land known as Block 3, Plot 3 Macpherson Road, Sapele, is Crown land. It was leased in 1936 to one Madam Eyenaso, who died in 1949. Her grandchild called Dale (3rd witness for the defence) applied for a regrant as the lease expired on 31/12/52, and on 25/2/53 a regrant was made in his favour. In 1957 he assigned his interest to the 1st appellant. In 1958, the 1st appellant brought an action against Machine Orororho for a declaration of title to this land, for trespass and prayed for an injunction against the man. Six months later this action was discontinued to bring a fresh one. Meanwhile, the Attorney General, Western Region prosecuted Orororho, but he was discharged by the Magistrate. On 20th October, 1960, on the 1st appellant’s instructions, his Solicitor gave 7 days’ notice to Orororho to quit and deliver possession of the premises which he was said to hold of the 1st appellant as a tenant. About a month later, indeed on 17/11/60, an action was filed against Orororho for possession of the premises. The case was listed for hearing on 27/12/60. On 18/12/60 the 1st appellant gave his contractors an authority in writing ‘to demolish and clear any buildings, structures or obstructions from the plot known and described as Plot 3, Block 3 Macpherson Road, Sapele, to enable the commencement of a proposed building on the said plot and which building plan has been approved.”
On the land there were two buildings a short distance apart. One, a zinc roof house, in which people lived, and the other, a small thatched roof building, where it would appear the man Orororho carried on his business.
It appears that the authority for immediate demolition applied to the first building where, according to the findings of the learned trial Judge, Machine Orororho and his tenants were living at the time in peaceable possession. The contractors, armed with the authority given to them by the 1st appellant, entered the premises, with others, and carried out the demolition. On the above facts the learned Judge, after considering the law applicable, to which I shall later refer, convicted the appellants and others before him.
For the 1st appellant eight grounds of appeal were filed, and for the 2nd and 3rd appellants’ three grounds of appeal were filed. Leave was later sought and granted to argue 20 additional grounds filed for the 1st appellant and 7 additional grounds were filed in respect of the 2nd and 3rd appellants. The various grounds argued, however, can conveniently be treated as under five heads:-
1. Misdirection. That the learned Judge misdirected himself in law as to the meaning of “actual” and “peaceable” possession, and that some English cases applied on this point were wrongly applied.
2. It was complained that k was a mistake to treat Section 74 as equivalent to the English Statute 5 Richard II.
3. A complaint that the man Orororho was a trespasser; that he was not in actual and peaceable possession; and that Section 229 of the Code was misapplied in the case.
4. That the 1st appellant, who was not present at the scene, should not have been found guilty and that Section 7(d) of the Criminal Code relating to parties to a crime was wrongly applied to him.
5. That the decision is unreasonable and cannot be supported having regard to the evidence.
The Section under which the complaint was laid reads as follows:-
Any person who, in a manner likely to cause a breach of the peace or reasonable apprehension of a breach of the peace, enters on land which is in actual and peaceable possession of another is guilty of a misdemeanour and is liable to imprisonment for one year.
It is immaterial whether he is entitled to enter on the land or not.
Before us, and indeed on the Court below, arguments were adduced about the rightful owner of the premises at Block 3, Plot 3, Macpherson Road, and the learned trial Judge appeared to have concerned himself unnecessarily with these considerations. We will say at the outset that we do not propose to consider the civil cases which were brought to our attention and argued before us.
The appellants were tried a on a criminal charge-to which we have referred above-and which states that “it is immaterial whether he (the accused) is entitled to enter on the land or not.” It was not a civil case of trespass nor a claim by the 1st appellant that he is the rightful owner of the premises. All these are not considerations appropriate in this case. At the same time, however, it is a case in which the Crown must establish that the man Machine Orororho was in actual and peaceable possession of the land in question and that the appellants entered thereon in a manner likely to cause a breach of the peace or reasonable apprehension of a breach of the peace.
In arguing the first head of appeal, namely, misdirection, Counsel argued that the learned trial Judge misdirected himself as to the meaning of the words “actual” and “peaceable” possession. It was argued that learned Judge did not consider authorities submitted to him on the point and that in any case the man Machine Orororho was never in actual and peaceable possession. We think in his judgment the learned Judge has given consideration to cases cited to him more than was necessary because, as we stated earlier, most of the cases referred to were civil and not criminal actions.
Actual possession means no more than physical possession, possession in fact – see Stroud’s Judicial Dictionary, (3rd Ed.) p.51. The word “peaceable” should be read in its ordinary meaning of a man being in possession of the land not by means of physical force.
The learned trial Judge found that the man, Machine Orororho, was in actual peaceable possession of the land at the time. We find nothing wrong with the consideration given to the words “actual and peaceable possession” and, in our view, there is ample evidence before him which, if believed constitutes actual physical possession on the part of Machine Orororho.
The second head of the argument by the appellants’ Counsel is that it was a mistake on the part of the learned trial Judge to treat Section 74 of the Criminal Code as equivalent to the English Statute, 5 Richard II. The Statute 5 Richard II might have been passed in order to cure certain mischief different from the object of Section 74 of the Criminal Code, they both indeed fulfil the same purpose. The effect, in our view, is the same. The object in each case is to prevent a breach of the peace. He who is in actual and peaceable possession, even if he was originally a trespasser, must not be ousted from the land with unreasonable force by a claimant, no matter i the claimant be the rightful owner; there must be a recourse to the law or the Courts. Section 74 of the Criminal Code, in our view, is capable of no other interpretation than this. The gravamen of the offence under Section 74 is that the offender entered the land, which is in actual and peaceable possession of another with such a show of force which may cause a breach of the peace, or a reasonable apprehension of a breach of the peace.
The third head argued was that the man, Machine Orororho, was a trespasser; that he was not in actual and peaceable possession; and that Section 229 of the Criminal Code (Western Region) was misapplied in the case.
Section 229 of the Criminal Code (Western Region Law) reads:-
It is lawful for a person who is in peaceable possession of any land, structure, vessel or place, or who is entitled to the control or management of any land, structure, vessel or place, and for any person acting by his authority, to use such force as is reasonably necessary in order to prevent any person from wrongfully entering upon such land, structure, vessel or place, or in order to remove therefrom a person who wrongfully remains therein, provided that he does not do to such person.
It is lawful for a person who is in peaceable possession of land, structure, vessel; or place, or who is entitled to the control, or management of any land, structure, vessel, or place, and for any person acting by his authority, to use force in
Other Citation: (1962) LCN/0984(SC)