Fidelis Ubanatu V. Commissioner of Police (1999)

LawGlobal-Hub Lead Judgment Report

MAHMUD MOHAMMED, J.C.A.

The appellant, Fidelis Ubanatu was arraigned before the Chief Magistrates Court, Warri, on a two count charge under section 323 of the Criminal Code CAP 48 of the Laws of the defunct Bendel state now applicable in Delta State of Nigeria. The two counts at page 1 of the record of appeal are as follows:-

“1. That you Fidelis Ubanatu (m) on the 7th day of November, 1992 at Warri in the Warri Magisterial District, knowingly caused one David Maroh (m) of Dowell Schlumberger (Nig.) Limited, P.O. Box 344 Warri to receive a letter threatening to kill him and thereby committed an offence punishable under section 323 of the Criminal Code Cap 48 Vol. 11, Laws of the defunct Bendel State of Nigeria, 1976 as applicable in Delta State.

2. That you, Fidelis Ubanatu (m) on the 10th day of August, 1994 at Warri in the Warri Magisterial District, knowingly caused one David Maroh (m) of Dowell Schlumberger (Nig.) Limited P.O. Box 344, Warri to receive a letter threatening to kill him and thereby committed an offence punishable under section 323 of the Criminal Code Cap 48 Vol.11 Laws of the defunct Bendel State of Nigeria 1976 as applicable in Delta State.”

In support of the charge contained in these two counts, the prosecution called 6 witnesses and tendered a number of documents which include two letters written by the appellant which were the subject of the two counts and a statement of the appellant to the police given under caution and which the police described, as confessional statement. At the close of the case of the prosecution on 15-3-1995 at the trial Chief Magistrate court, Warri, the learned counsel for the appellant elected not to call on the appellant to enter into his defence but elected to make a no Case submission on his behalf. The case was accordingly adjourned to 29-3-1995 for the learned counsel for the appellant to make his submission which was duly presented to the trial court on that date before the court adjourned the matter for ruling on 6-4-1995. In his short ruling delivered on this date, the learned trial Chief Magistrate over ruled the no case submission made on behalf of the appellant and held that the prosecution, on the evidence before him, had made out a prima facie case against the appellant sufficiently to require his being called upon to defend himself on both counts.

Aggrieved by this decision of the trial Chief Magistrate court, the appellant appealed against it to the Delta State High Court of Justice, Warri where the appeal was heard and ultimately dismissed in a reserved judgment of that court delivered on 28-9-1995 by Dr. Dorubo Narebor J. Still not satisfied with the judgment, the appellant has now appealed to this court. His Notice of appeal contains 2 grounds of appeal from which two issues for determination of the appeal were distilled in the appellant’s brief of argument. The issues are:-

“1. Whether or not the Justice of the appellate court misdirected himself on the charges and if so whether or not the misdirection occasioned substantial miscarriage of Justice”

2. Whether or not the two letters exhibits 1 and 3 contain threat to kill David Maroh?”

However, in the brief of argument filed by the respondent, the following two issues were identified for the determination of the appeal.

“1. Whether the abbreviation of the contents of the charge by the learned Justice of the appellate High Court in his judgment occasioned a miscarriage of justice.

2. Whether the appeal against the overruling of the no-case submission was rightfully dismissed.”

Before proceeding to resolve these issues, it is necessary to examine the second issue in the appellant’s brief of argument in order to determine whether or not it arose from ground 2 of the appellant’s grounds of appeal.

The ground of appeal reads:-

“2. The learned Justice of the appellate court (High Court, Warri) erred in Law in confirming the ruling of the Chief Magistrate, which over-ruled the no case submission of the counsel for the appellant when the essential ingredients of the offences namely “Threat to kill David Moroh” are not proved.

PARTICULARS OF ERROR IN LAW

The letters exhibits 1 and 3 dated 7-11-92 and 10-8-94 respectively, written by the accused/appellant to David Moroh do not contain a threat to kill him.”

The issue No. 2 formulated from this ground of appeal in the appellate brief of argument is; –