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.”