COMMISSIONER OF POLICE    V CHIEF FIDELIS ENANG OGOR & 9 ORS SUPREME COURT OF NIGERIA – SC. 1126/2017 DECIDED ON THE 8TH APRIL 2022

[Criminal Law] – [Offence of Breach of Peace] – [Ingredience of]

ISSUES FOR DETERMINATION:

1. Whether, in the circumstances, the preliminary objection raised against the competence of the appeal was sustainable.

• Whether the Court of Appeal was right in holding that in view of its findings on the substantive offences, the respondents could not be guilty of the offence of conspiracy.

FACTS:

One Chief Raymond Okpa, in his capacity as the Chief of Ovanum Ntem village, was informed of the demise of the 4^th respondent’s son and was consulted to mark the spot or grave point for the burial of the deceased. Subsequently, Chief Raymond Okpa designated two people to carry the Ovanum customary sacred pot to mark the graveyard for the burial of the deceased. However, the people sent to mark the grave spot were harassed, stoned and chased away by the respondents and the Ovanum sacred pot got broken in the process. The respondents were subsequently arraigned on a three-count charge before the Chief Magistrate’s court. The counts were for conspiracy to effect an unlawful purpose, conduct likely to cause a breach of the peace and willful and unlawful damage. The respondents pleaded not guilty to all the counts.

To substantiate its case, the appellant called four witnesses namely: Chief Raymond Okpa testified as PW1; John Egede and Abeng Okera, the two people sent to mark the grave spot testified as PW2 and PW3 respectively and the investigating police officer testified as PW4. The evidence adduced by the appellant on the count of conspiracy was based on the same facts as those of the two substantive counts. The respondents testified in person without calling any other witness. In its judgment, the trial court sustained all the counts and convicted the respondents accordingly.

Aggrieved by their conviction and sentence, the respondents appealed to the High Court in its appellate jurisdiction. They contended that the trial court erred in convicting them of an offence under section 249(d) of the Criminal Code when the place where the alleged offence took place was not proved to be a public place, but the private residence of the 4^th accused. In its judgment the High Court found that the place where the alleged offence was said to have been committed was not a public place; and held that counts one and two could not be sustained and that, by implication, count three could not also be sustained. It set aside the decision of the trial magistrate court and discharged and acquitted the respondents of all the offences charged.

Dissatisfied with the judgment of the High Court, the appellant appealed to the Court of Appeal which held that the public place, Ovanum Community graveyard, where the respondents were supposed to have trespassed and committed the offences charged did not exist. It affirmed the judgment of the High Court and dismissed the appeal. Still dissatisfied, the appellant appealed to the Supreme Court which dismissed the appeal.

At the hearing of the appeal, the respondents raised a preliminary objection to the competence of the appeal on the ground that the four grounds of appeal raised questions of facts or at best mixed law and facts for which leave to appeal was mandatory by virtue of section 233 and of the 1999 Constitution (as amended), but that it was neither sought nor obtained. On its part, the appellant conceded that leave was required to raise grounds of facts or of mixed law and facts but that ground 3 was a ground of law which alone could sustain the appeal.

HELD:

On Offence of and punishment for breach of peace:

By virtue of section 249(d) of the Criminal Code, Laws of Cross River State, every person who, in any public place, conducts himself in a manner likely to cause a breach of the peace shall be deemed to be idle and disorderly persons, and may be arrested without warrant, and shall be guilty of a simple offence and liable to imprisonment for one month.

On Ingredients of offence of breach of peace:

To be guilty of the offence of breach of the peace under section 249(d) of the Criminal Code, the accused person must have conducted himself in a manner likely to cause breach of the peace in a public place. In the instant case, it was established as a fact that the Ovanum Community graveyard did not exist, which meant that the prosecution failed to prove a fundamental element that cut across the substantive offence itself and the offence of conspiracy. Thus, the Court of Appeal was right when it held that the public place, Ovanum Community graveyard, where the respondents were supposed to have trespassed on, did not exist, and the count for conspiracy was fatally ‘flawed and could not, in the circumstances, be sustained as well’.

NIGERIAN CASES REFERRED TO IN THE JUDGEMENT:

• Abe v. Unilorin (2013) 16 NWLR (Pt. 1379) 183
• Aderounmu v. Olowu (2000) 4 NWLR (Pt. 652) 253
• Afro-Continental (Nig.) Ltd. v. Ayantuyi (1995) 9 NWLR (Pt.420) 41
• Akpan v. Bob (2010) 17 NWLR (Pt. 1223) 421
• Amachree v. Nigerian Army (2003) 3 NWLR (Pt. 807) 256
• Amadi v. Wopara SC.837/2018
• Amuda v. Adelodun (1994) 8 NWLR (Pt. 360) 23
• Anukam v. Anukam (2008) 5 NWLR (Pt. 1081) 455
• Atano v. A.-G., Bendel State (1988) 2 NWLR (Pt. 75) 201
• Balogun v. A.-G., Ogun State (2002) 6 NWLR (Pt. 763) 512
• Best (Nig.) Ltd. v. B.H. (Nig.) Ltd. (2011) 5 NWLR (Pt. 1239)95
• Bouwor v. State (2016) 4 NWLR (Pt. 1502) 295
• Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 113
• Eke v. State (2011) 3 NWLR (Pt. 1235) 589
• Ekunola v. C.B.N (2013) 15 NWLR (Pt.1377) 224
• Erim v. State (1994) 5 NWLR (Pt.346) 522
• F.R.N. v. Umeh (2019) 7 NWLR (Pt. 1670) 40
• Fasuyi v. P.D.P. (2018) 7 NWLR (Pt. 1619) 426
• Garuba v. Omokhodion (2011) 15 NWLR (Pt. 1269) 145
• Globe Fishing Ind. Ltd. v. Coker (1990) 7 NWLR (Pt. 162)265
• Ibrahim v. State (2015) 11 NWLR (Pt. 1469) 164
• Ikemson v. State (1989) 3 NWLR (Pt.110) 455
• Maba v. State (2021) 1 NWLR (Pt. 1757) 353
• Metal Const. (W. A.) Ltd. v. Migliore (1990) 1 NWLR (Pt. 126)299
• N.I.W.A. v. S.P.D.C.N. Ltd. (2020) 16 NWLR (Pt. 1749) 160
• Njemanze v. Njemanze (2013) 8 NWLR (Pt. 1356) 376
• Njovens v. State (1973) 5 SC 17
• Nwankwo v. F.R.N. (2003) 4 NWLR (Pt.809) 1
• Nwankwoala v. State (2006) 14 NWLR (Pt.1000) 663
• Nwaturuocha v. State (2011) 6 NWLR (Pt. 1242) 170
• Nyako v. A.S.H.A. (2017) 6 NWLR (Pt. 1562) 347
• Obayuwana v. Adun (2020) 13 NWLR (Pt.1741) 371
• Ogbechie v. Onochie (1986) 2 NWLR (Pt.23) 484
• Okanlawon v. State (2015) 17 NWLR (Pt. 1489) 445
• Okiemute v. State (2016) 15 NWLR (Pt. 1535) 297
• Oladejo v. State (2018) 11 NWLR (Pt. 1630) 238
• Oladele v. Nigerian Army (2004) 6 NWLR (Pt. 868) 166
• Olayode v. State (2021) 4 NWLR (Pt. 1765) 144
• Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205
• Onah v. State (1985) 3 NWLR (Pt. 12) 236
• Otu v. A.C.B. Plc (2008) 3 NWLR (Pt. 1073) 179
• Shazali v. State (1988) 5 NWLR (Pt. 93) 164
• Shittu v. PAN Ltd. (2018) 15 NWLR (Pt. 1642) 195
• Shodiya v. State (1992) 3 NWLR (Pt.230) 457
• State v. Omoyele (2017) 1 NWLR (Pt. 1547) 341
• Ubani v. State (2003) 4 NWLR (Pt.809) 51
• Uwak v. Ekpenyong (2019) 7 NWLR (Pt. 1670) 67

FOREIGN CASES REFERRED TO IN THE JUDGMENT:

• R. v. Dawson (1960) 1 AER 558

NIGERIAN STATUTES REFERRED TO IN THE JUDGMENT:

• Constitution of the Federal Republic of Nigeria, 1999 (as amended), Ss. 36(5) and 233(2)(a)(3)

• Criminal Code, Cap. 31, Volume II, Laws of Cross River State of Nigeria, 1983, Ss. 249(d); 451 and 518(6)

FULL JUDGMENT

AUGIE, J.S.C. (Delivering the Leading Judgment):

The criminal matter that led to this appeal started at the Chief Magistrate Court, Apiapum-Obubra in Cross River State, and it has to do with the breaking of an “ancestral pot”, used by Ovanum people during traditional burial ceremonies. The ten respondents, as the accused persons therein, were alleged to have:

1. Conspired among themselves to effect an unlawful purpose to wit malicious damage/conduct likely to cause breach of peace.
2. Conducted themselves in a manner likely to cause breach of peace by trespassing into Ovanum Community Graveyard without authority; and
3. Willfully and unlawfully damaged one pot valued at N500.00 property of Chief Raymond Ewena Okpa.

The evidence of the prosecution witnesses, especially that of PW2, pointed unequivocally to the fact that on 28/2/2004, the accused persons and their cohorts created a scene at the spot when PW2 and PW3 approached the 4^th accused person now deceased to show them where to mark the grave for the burial of the 4^th accused person’s brother by name – Oyama Onyum. There is copious evidence that the accused persons and their cohorts threw stones at PW2 and PW3, which led to damage or destruction of the traditional pot in exhibit M. From the evidence so far led, I cannot hesitate to infer that the traditional pot was damaged as a result of the conduct of the accused persons. No better inference can be drawn than this. After all, the offence of conspiracy has a hub. It does not mean that all the accused persons must be present at the same time and spot. A person can be anywhere and still match conspiracy.

To all intents and purposes, the 1^st accused person’s house is the hub of this conspiracy. It is not true, as submitted by counsel that PW2 and PW3 did not lead evidence as to the conspiracy. The evidence of PW2 and PW3 revealed without any equivocation that accused persons and their cohorts conspired and threw stones at them thereby damaging the traditional pot and chasing them away. None of these prosecution witnesses changed his stand under cross-examination and I am bound to believe them. I hold that the prosecution has proved its case in all the counts beyond reasonable doubt in accordance with section 138(1) Evidence Act, Cap. 112. I find all the accused persons Nos. 1 to 10 guilty as charged and I convict all of them as charged.

They were all “cautioned and discharged” on Counts I and II and on Count III, the ten of them were each sentenced: “to 2 years I. H. L. or pay N2000 as fine”. The Chief Magistrate also ordered that “all the convicts are bound over to keep peace for 7 years without any surety”. They then appealed to the High Court, Calabar, in its appellate jurisdiction, wherein they complained inter alia that the Chief Magistrate erred in convicting them for an offence under Section 249(d) of the Criminal Code, when the place where the alleged offence took place was not proved to be a public place, but the private residence of the fourth accused. Section 249(d) of the Criminal Code Laws of Cross Rivers State, provides:

“Every person who, in any public place, constitutes himself in a manner likely to cause breach of the peace shall be deemed to be idle and disorderly persons, and shall be guilty of a simple offence and shall be liable to imprisonment for one month.”

The respondents herein were charged with the offence of conspiracy, and the bedrock of the offence is the agreement to do something unlawful. See Ikemson v. State (1989) 3 NWLR (Pt. 110) 455, Erim v. State (1994) 5 NWLR (Pt. 346) 522. The conspirators must have agreed to do something unlawful to justify a conviction for conspiracy. The word “unlawful” means “not authorized by law; illegal; criminally punishable” see Black’s Law Dictionary, 9^th Edition.

In this case, in setting aside the respondents’ conviction for conspiracy by the trial Chief Magistrate Court, the High Court had first of all considered the allegation in count 2 that they “conducted themselves in a manner likely to cause breach of peace by trespassing into Ovanum Community graveyard without authority” and held that they could not have been guilty of conspiracy, because there is “no place in existence called Ovanum Community graveyard”.

In affirming the above decision of the High Court, the Court of Appeal held that:

“From the evidence adduced by the appellant, the count of conspiracy was based on the same facts as those of the two substantiative offences, and where a charge of conspiracy is based on the same facts as the substantive charge, the Court is enjoined to deal with the substantive charge and then see if the charge of conspiracy is desirable and could be sustained. See Amachree v. Nigerian Army (2003) 3 NWLR (Pt. 807)256 at 274 applying R v. Dawson (1960) 1 AER 558 and Njovens v. State (1973) 5 SC 17 at 68. The count was predicated on the existence of a public place as envisaged by section 249 (d) of the Criminal Code, as such it is palpably evident that the existence of the said Ovanum Community graveyard is fundamental to the success of the allegation. The witnesses at trial on both sides of the divide were unanimous that there was no such place in existence. In other words, the public place, Ovanum Community graveyard, where the respondents were supposed to have trespassed did not exist. Having come to the above conclusions on the main counts, the first count of conspiracy is fatally flawed and cannot in the circumstances be sustained as well.”

The complaint in ground 3 of the grounds of appeal is that the Court of Appeal erred when it held that based on its conclusions on the main counts II and III, count I for conspiracy is fatally flawed, and so, it cannot be sustained as well. The alleged breach of peace that led to this appeal occurred in 2004 – 18 years ago, and I believe it is in the interest of justice to deal with this appeal and lay the matter to rest once and for all. As it is, it is not necessary to evaluate evidence in addressing the complaint in the ground itself; it is on that premise that I hold that the said ground 3 of the grounds of appeal is a ground of law.

Thus, the appellant is right that ground 3 of the ground of appeal is a ground of law, and as he also submitted, it is trite law that a sole ground of law is sufficient to sustain a notice of appeal. See Ekunola v. CBN (supra). But I must add that the issue for determination in the appeal must be distilled from the said competent ground of appeal, and not from the other grounds of appeal, which are incompetent, and struck out.

As this court, per Ogunbiyi, JSC, put it in Njemanze v. Njemanze (2013) 8 NWLR (Pt. 1356) 376:

“no competent issue can arise from an incompetent ground of appeal”. See also Akpan v. Bob & Ors. (2010) LPELR-376(SC); (2010) 17NWLR (Pt. 1223) 421.”

In this case, the appellant formulated two issues for determination and issue [i] which questions whether the evidence led by the prosecution proved the allegation against them beyond reasonable doubt, is distilled from the other grounds of appeal in his notice of appeal, which have been struck out earlier for being incompetent. The said issue is also incompetent, and it is struck out.

Issue [ii] is distilled from the said ground 3 of the grounds of appeal, which has been adjudged competent, and the issue is, therefore, competent, and I will adopt same in dealing with this appeal. Thus, it goes without saying that the preliminary objection raised by the respondents “to the hearing and determination of this appeal” must be overruled, and it is, hereby, overruled. So, this appeal turns on the narrow issue of whether the Court of Appeal is right that in view of its findings on the substantive offences, the respondents could not be guilty of the offence of conspiracy. The appellant, who focused his arguments on other areas, did not have anything to say about this issue.

Now, it is trite law that conspiracy to commit an offence is a separate and distinct offence by itself and it is independent of the offence of the actual commission of the offence to which the said conspiracy relates. See Atano v. A.-G., Bendel State (1988) 2 NWLR (Pt. 75) 201, wherein Nnamani, JSC, explained:

It is obvious that the offence of conspiracy to commit an offence will necessarily precede in point of time the offence of the actual commission of the offence to which the conspiracy relates. So, it is possible that one may be guilty of conspiracy to commit an offence and yet not be guilty of the actual commission of the offence. For it is possible that one might change one’s mind before the offence was committed but after the conspiracy might have been hatched. And consequently, that one might not have gone along with the other conspirators in the commission of the offence itself. In other words, that one might have dropped out of the whole scheme after the conspiracy had been entered into.

In other words, a conviction for the offence of conspiracy does not fail merely because the conviction on the substantive charge had failed. See Bouwor v. State (2016) 4 NWLR (Pt. 1502) 295; Balogun v. A.-G., Ogun State (2002) 6 NWLR (Pt. 763) 512; Okanlawon v. State (2015) 17 NWLR (Pt. 1489) 445. Even so, the courts have deprecated the practice of including a count of conspiracy to commit an offence as well as a count for actually committing the offence itself, where the evidence to support the two counts are the same.

Clearly, the issue at stake in this appeal has nothing to do with the fact that the conviction for the substantive offences failed; it has to do with the fact that the prosecution adduced the same evidence to support the allegations against the respondents in counts 2 & 3, which are substantive offences, and the offence of conspiracy in count 1. That being so, the Court of Appeal is certainly right.

In a charge of conspiracy to commit an offence, even though a separate offence from the substantive offence, where the facts are intricately interwoven, Courts are enjoined to deal with the substantive offence first. This is because, in such circumstances, the conviction for conspiracy will fail if the conviction for the substantive offence is set aside. See Okiemute v. State (2016) 15 NWLR (Pt. 1535) 297 SC; Oladejo v. State (2018) 11 NWLR (Pt.1630) 238 at 244 SC.

In this case, in count 1 of the charge, the respondents were alleged to have conspired “to effect an unlawful purpose to wit malicious damage/conduct likely to cause breach of peace”, and in count 2, they were alleged to have conducted themselves in a manner likely to cause breach of peace by trespassing into Ovanum Community graveyard without authority thereby committed an offence punishable under section 249(d) of the Criminal Code, Cap. 31 Vol. II LCRSN 1983.

Section 249(d) of the Criminal Code specifically states that every person, who, “in any public place, constitutes himself in a manner likely to cause breach of the peace, shall be guilty of a simple offence”. In other words, to be guilty of the said offence undersection 249(d), the respondents must have conducted themselves in a manner likely to cause breach of the peace in a public place, and the public place, as alleged in count 2, is Ovanum Community graveyard.

The prosecution adduced evidence in support of both counts, therefore, to ground a conviction for conspiracy, the allegation in count 2 must be proved. It is an established fact that the Ovanum Community graveyard does not exist, which means that the Prosecution had failed to prove a fundamental element that cuts across the substantive offence itself and the offence of conspiracy. So, the Court of Appeal made the right call – it held that the public place, Ovanum Community graveyard, where the respondents were supposed to have trespassed did not exist, thus, the count for conspiracy “is fatally flawed and cannot in the circumstances be sustained as well”, and I completely agree.

In the circumstances, this appeal lacks merit, and it is hereby dismissed.

Appeal dismissed.

LIST OF COUNSEL:

Aderemi Oguntoye, Esq.- for the Appellant.

Ubong Esop Akpan, Esq. – for the Respondents.