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Before Their Lordships
IBRAHIM TANKO MUHAMMAD Justice of The Supreme Court of Nigeria
MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria
KUMAI BAYANG AKA’AHS Justice of The Supreme Court of Nigeria
JOHN INYANG OKORO Justice of The Supreme Court of Nigeria
AMIRU SANUSI Justice of The Supreme Court of Nigeria
MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria
KUMAI BAYANG AKA’AHS Justice of The Supreme Court of Nigeria
JOHN INYANG OKORO Justice of The Supreme Court of Nigeria
AMIRU SANUSI Justice of The Supreme Court of Nigeria
Between
MR. CHRISTIAN SPIESS –Appellant
AND
MR. JOB ONI –Respondent
…………………….A…………………….
IBRAHIM TANKO MUHAMMAD, J.S.C.(Delivering the Leading Judgment): Mr Job Oni was the complainant before a Kaduna State Chief Magistrates Court, holden at Makera, Kaduna State (trial Court). In his evidence he stated that he knew Mr. Christian Spiess, the accused/appellant, and that he used to work for CONDEM (the accused’s company) from time to time as a carpenter. The business of the company, he said, was that of making of satellite dishes sometime in 1999, the appellant was charged before the trial Court as follows:
“Count 1:-
That on or about the 18th day of July, 1999 at No. 8 Block 3, Gafai Street, behind Kaduna Textile Limited, Kaduna, you commit (sic) criminal Trespass by entering into the above named premises, then in possession of Job Oni and dismantled a Satellite Dish then in possession of Job Oni, and thereby committed an offence punishable under Section 348 of the Penal Code.
Count 2
That you, on or about the 18th day of July, 1999 at No. 8 block 3 Gafai Street, behind Kaduna Textile Limited, committed the theft of a Satellite Dish by taking it out of the possession of Job Oni and thereby committed an offence punishable under Section 287 of the Penal Code.
Appellant pleaded not guilty in each of the two counts. Evidence was taken by the trial Court. At the end of trial, the appellant was discharged and acquitted on count 2 of the charge on ground that the offence of theft was not proved against the appellant. The appellant was however found guilty of the 1st count charge of criminal trespass and was convicted and sentenced to three (3) months imprisonment or two thousand Naira (N2,000.00) fine in the alternative.
Appellant appealed to the Kaduna State High Court on the conviction and sentence handed down to him by the trial Court. After revising the whole case, the High Court exercising its appellate jurisdiction affirmed the conviction and sentence of the trial Court.
Dissatisfied further the appellant appealed to the Court of Appeal (Court below). The Court below dismissed the appeal.
Appellant finally lodged his appeal to this Court. He filed his Notice of Appeal which contained three grounds of appeal.
In this Court learned counsel for the parties filed their respective briefs of argument. Learned counsel for the appellant formulated the following sole issue for the determination of this Court:
WHETHER THE COURT BELOW WAS IN ERROR IN HOLDING THAT THERE WERE CONCURRENT FINDINGS OF FACT AND THAT NO REASON WAS SHOWN BY THE APPELLANT TO DISTURB THE CONCURRENT FINDINGS OF FACTS. GROUND 1 AND 2.
It is to be noted that the appellant decided to abandon ground three (3) of his grounds of appeal and it is hereby struck out.
Learned counsel for the respondent formulated a similar issue but in different wordings, thus:
”Whether the learned Justices of the Court of Appeal were in error in their findings of fact that will attract the intervention of this Court in setting same aside.” (Grounds 1 and 2).
In his submissions on the issue under consideration, the learned counsel for the appellant stated, and I think I should quote him verbatim:
”4.2 In this appeal there was no dispute between the appellant and the respondent that the appellant entered the respondents compound to remove and removed the satellite dish which he genuinely believed was the property of his company.
Learned counsel further submitted that the trust of the evidence of the appellant and his three witnesses was that the satellite dish the appellant removed from the respondent’s compound, from the materials used in making the dish, belonged to the appellants company. The Learned counsel for the appellant stated that the appellant contended that his removal of the satellite, which he believed in good faith was the property of his company, was not criminal trespass but the trial magistrate and the High Court held that the appellant’s resort to self-help to retrieve the satellite dish from the respondents compound amounted to criminal trespass. Learned counsel went on to distinguish an issue of law from that of fact, citing the case of Ogbechie v. Onochie (1986) 2 NWLR (Pt.23) 484 at 491? 412. Learned counsel stated further that the decisions of the trial magistrate and the High Court involved an (erroneous) application of the provisions of Section 342 of the Penal Code Law to the undisputed facts that the appellant in the bona fide belief that the Satellite Dish in the compound of the respondent was the property of his company, entered the respondents compound and removed the satellite dish. This, he said clearly falls under item (v) in the decision of this Court in Ogbechie v. Onochie(supra) thereby making it an
That on or about the 18th day of July, 1999 at No. 8 Block 3, Gafai Street, behind Kaduna Textile Limited, Kaduna, you commit (sic) criminal Trespass by entering into the above named premises, then in possession of Job Oni and dismantled a Satellite Dish then in possession of Job Oni, and thereby committed an offence punishable under Section 348 of the Penal Code.
Count 2
That you, on or about the 18th day of July, 1999 at No. 8 block 3 Gafai Street, behind Kaduna Textile Limited, committed the theft of a Satellite Dish by taking it out of the possession of Job Oni and thereby committed an offence punishable under Section 287 of the Penal Code.
Appellant pleaded not guilty in each of the two counts. Evidence was taken by the trial Court. At the end of trial, the appellant was discharged and acquitted on count 2 of the charge on ground that the offence of theft was not proved against the appellant. The appellant was however found guilty of the 1st count charge of criminal trespass and was convicted and sentenced to three (3) months imprisonment or two thousand Naira (N2,000.00) fine in the alternative.
Appellant appealed to the Kaduna State High Court on the conviction and sentence handed down to him by the trial Court. After revising the whole case, the High Court exercising its appellate jurisdiction affirmed the conviction and sentence of the trial Court.
Dissatisfied further the appellant appealed to the Court of Appeal (Court below). The Court below dismissed the appeal.
Appellant finally lodged his appeal to this Court. He filed his Notice of Appeal which contained three grounds of appeal.
In this Court learned counsel for the parties filed their respective briefs of argument. Learned counsel for the appellant formulated the following sole issue for the determination of this Court:
WHETHER THE COURT BELOW WAS IN ERROR IN HOLDING THAT THERE WERE CONCURRENT FINDINGS OF FACT AND THAT NO REASON WAS SHOWN BY THE APPELLANT TO DISTURB THE CONCURRENT FINDINGS OF FACTS. GROUND 1 AND 2.
It is to be noted that the appellant decided to abandon ground three (3) of his grounds of appeal and it is hereby struck out.
Learned counsel for the respondent formulated a similar issue but in different wordings, thus:
”Whether the learned Justices of the Court of Appeal were in error in their findings of fact that will attract the intervention of this Court in setting same aside.” (Grounds 1 and 2).
In his submissions on the issue under consideration, the learned counsel for the appellant stated, and I think I should quote him verbatim:
”4.2 In this appeal there was no dispute between the appellant and the respondent that the appellant entered the respondents compound to remove and removed the satellite dish which he genuinely believed was the property of his company.
Learned counsel further submitted that the trust of the evidence of the appellant and his three witnesses was that the satellite dish the appellant removed from the respondent’s compound, from the materials used in making the dish, belonged to the appellants company. The Learned counsel for the appellant stated that the appellant contended that his removal of the satellite, which he believed in good faith was the property of his company, was not criminal trespass but the trial magistrate and the High Court held that the appellant’s resort to self-help to retrieve the satellite dish from the respondents compound amounted to criminal trespass. Learned counsel went on to distinguish an issue of law from that of fact, citing the case of Ogbechie v. Onochie (1986) 2 NWLR (Pt.23) 484 at 491? 412. Learned counsel stated further that the decisions of the trial magistrate and the High Court involved an (erroneous) application of the provisions of Section 342 of the Penal Code Law to the undisputed facts that the appellant in the bona fide belief that the Satellite Dish in the compound of the respondent was the property of his company, entered the respondents compound and removed the satellite dish. This, he said clearly falls under item (v) in the decision of this Court in Ogbechie v. Onochie(supra) thereby making it an
…………………….B…………………….
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