Sunny Tongo & Anor V. Commissioner of Police (1999)

LawGlobal-Hub Lead Judgment Report

AKAAHS, J.C.A.

The appellants were arraigned before the Senior Magistrate’s Court Benin City presided over by a Senior Magistrate Grade I in a one count charge No. MB/710c/92 for the following offence namely:-

“That you Sonny Tongo (m) Helen Tongo (f) on or about the 16th day of February, 1991 at Plot 88, 2nd Garrick Avenue, off Siluko Road Benin City in Benin Magisterial District, wilfully 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”

The complainant and three other witnesses testified and were cross-examined.

At the close of the Prosecution’s case, Learned Counsel for the accused made a no case submission which was overruled on 22/9/92 and the case was adjourned to 22/10/92 for defence. The accused/appellants appealed against the ruling to the High Court which dismissed the appeal on 26/9/95. Dissatisfied with the judgment of the High Court, the appellants further appealed to this court. The 1st appellant’s Notice contained six grounds of appeal which was annexed to his application for leave to appeal dated 9/10/95. The 2nd appellant also appealed on four grounds and leave to appeal was granted on 14/11/95 to the two appellants. It appears the 1st appellant’s Notice of Appeal was struck out on 10th May, 1999 and so an application was brought on 14/5/99 praying the court to set aside the order and to relist the appeal for determination on the merits. The application was moved and granted on 7/7/99. Earlier on 16/5/96 the respondent had filed an application praying this court to dismiss the appeal for want of prosecution alleging that the time limit for filing the appellant’s brief as required by Order 6 Rule 2 Court of Appeal Rules, had lapsed. On 23/6/97 the appellants brought an application for an order extending time within which they could file a Joint Appellants’ brief’. On 25/6/97 the motion to dismiss the appeal was struck out while time was extended for the appellants to file their briefs. The said briefs were deemed filed on 10/5/99. On 27/3/98 the respondent brought an application which was granted on 30/3/98 extending the time within which to file the respondent’s brief. Another motion for extension of time to file the respondent’s brief of argument and to deem same as duly filed and served was filed on 25/5/98 and it was moved and granted on 19/10/98. The briefs filed by the respondent dealt with the issues raised in the appellants’ briefs.

While in the 1st appellant’s brief, four issues were raised for determination, the 2nd appellant’s brief contained two issues and the respondent also had two issues for determination. The issues for determination in the brief filed by the 1st appellant are:-

(1) Whether the appellant abandoned the only ground of appeal he filed.

(2) Whether there is a difference between the parameters for determining a prima facie case at the consent level in preferring an information pursuant to Section 340(2)(b) Criminal Procedure Cap. 49 BSLN 1976 applicable in Edo State and prima facie case at the close of the prosecution’s case.

(3) Whether there is evidence of an extra 10′ which the appellant did not sell to the P.W.1’s daughter Betty Odiase, making her land from where the wall fence was sited to be 60′ in width instead of 50′ in width at the prosecution’s case GROUND 2.

(4) Whether the prosecution made out a prima facie case against the appellant GROUNDS 3, 5 and 6.

The 2nd appellants’ two issues for determination are:-

(1) Whether the appellant abandoned any of the grounds of her appeal GROUNDS 1 and 2.

(2) Whether the prosecution established a prima facie case against the appellant GROUNDS 3 and 4.

The respondent’s brief dealt with two issues for determination namely:-