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.

3. 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.
4. 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.
5. 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.