Okon Sam Mboko & Ors V. Commissioner Of Police (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH TINE TUR, J.C.A (Delivering the Leading Judgment)

On 19th July, 1996 the Acting chief Magistrate Itu, convicted the appellants and others for diverse criminal offences under the Criminal Code, Laws of cross River state of Nigeria Cap-31 Vol.2 in suit No.MIT/36C/1993. On appeal to the High Court of Justice, Cross River State, Justice Philomena S. Etim, exercising appellate jurisdiction set aside the conviction and sentence of the other accused person but upheld the conviction and sentence of the 1st-5th appellants.

There have further appealed to this court. Each appellant filed a separate Notice and Grounds of Appeal on 20th July, 2009 followed by a Joint brief on 25th January, 2011, deemed properly filed and served on the Respondent on 23rd February, 2011 with leave of this court. On 29th February, 2012 the respondent was granted leave to file brief within seven days. Both briefs were adopted on 3rd May, 2012 when the appeal came up for hearing.

The case of the prosecution before the Acting Chief magistrate was predicated on ten counts with fourteen accused persons. The prosecution withdrew counts five, eight, nine and ten which were struck out on 29th April, 1993 and 20th June, 1996 respectively. During trial the prosecution applied and the name of the 12th suspect was struck out. The trial proceeded on counts one, two, three, four, six and seven. The prosecution called seven witnesses who testified and tendered twenty eight exhibits marked “A – Z”. Each accused gave evidence in their respective defences.

According to the prosecution witnesses, to scare away the complainants on 26th March, 1992 the appellants went with a dreaded masquerade called “Ayara Ekong” to harvest palm fruits in the land described in count one as “Aka Ikot Abasi Bush” in “Aka Udo Eno village” in actual and peaceful possession of Aka Ikot Udo Eno village and thereby committed an offence punishable under section 81 of the Criminal Code, cap. 31 Vol-II, Laws of cross River State, 1983 as applicable to Akwa Ibom State of Nigeria.

On 28th March, 1992 the appellants and others suspects again went and attacked the complainants’ villages, stole and damaged diverse properties, unlawfully assaulted and battered the residents including some of prosecution witnesses etc. For the purpose of this appeal I need not set out all the counts upon which the other suspects were prosecuted, convicted and sentenced by the Acting chief Magistrate since many of them were discharged and acquitted by the High Court of Justice on 20th April, 2009. I shall confine myself to the appeal of the 1st before this Court.

I shall reproduce only the Counts that are relevant for the determination of the appeal as they affect the 1st-5th appellants to wit:

“COUNT I. That you Peter Jonah Udo ‘M’, Okon Sam Mboko ‘M’, Sunday Etim Udo ‘M’ Apostle Sunday John Udo ‘M’, Ndarake Mboko Ikpeme, Clement ben Akpan, Akpan Sunday Udo, Solomon Ben Akpan, Etim Udo Ette, and Chief Ben Udo Aya on the 26th day of March, 1992 at Aka Ikot Udo Eno village, Itu in Itu Magisterial District did in a manner likely to cause breach of peace of reasonable apprehension of a breach of the peace entered on land known and called Aka Ikot Abasi Bush which is in actual and peaceful possession of Aka Ikot Udo Eno village and thereby committed an offence punishable under Section 81 of the criminal code, cap. 31 Vol.II, Laws of Cross River State, 1983 as applicable in Akwa Ibom State of Nigeria.

Count II: That You Solomon Ben Akpan, Uwen Okon Udonya, on the 28th day of March, 1992 at Aka Ikot Udo Eno village, Itu in Itu Magisterial District did steal one sewing machine valued N1,500.00, Two Yaclina 125 camera with two flashes valued N8,000.00 six shovels, rib diggers valued N7,060.00, Four bundles of zinc valued N4,800.00. Total value of property stolen N75,960.00, property of Okon Sunday Bassey and thereby committed an offence Punishable under section 390(9) of the Criminal Code, Cap.31, Vol. II, Laws of Cross River State of Nigeria, 1983 as applicable in Akwa Ibom State of Nigeria.

At the conclusion of trial the Acting chief Magistrate held as follows:

“Accordingly, I found the 1st, 2nd, 4th 5th, 6th, 7th, 8th, 9th, and 13th accused persons guilty in count one. In count two, I found the 8th and 10th accused persons guilty. I also found the 1st accused guilty in count three. In count four I hereby pronounce the 3rd accused guilty. In count six I found the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th, and 13th accused persons with the printed words of section 249(d) of the criminal code and I found them guilty accordingly. And finally, the 5th, 8th, 9th, and 10th accused persons are hereby found guilty in count seven. The 14th accused person is found not guilty in any of the counts.

ORDER: The 14th accused is hereby discharged and acquitted.”

The following sentences were passed on the convicts:

“SENTENCE: