Commissioner Of Police V. Donatus Ude (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABDU ABOKI, J.C.A.(Delivering the Leading Judgment)

This is an appeal against the decision of Enugu State High Court Appellate Division sitting at Enugu delivered by B.E. Agbata J. on 11/12/2003.

The brief facts of the case is as follows:-

‘The respondent who was a staff of the University of Nigeria Teaching Hospital (UNTH) Enugu, reported to the Chief security officer on the morning of the 26th July, 1994 that the laboratory store of the hospital has been broken into and 26 microscopes stolen after the security men on duty were held and beaten up. The matter was reported to the police who came later to inspect the premises. After investigation, the respondent who was the 1st accused was arrested along with others. The store is located on a storey building. There were no marks on the wall to indicate that someone climbed through the wall and the door was not tampered with. The burglary proof on the window were neatly removed and packed carefully inside the store, the Respondent had the key to the store and there was a counter-locking system for additional security. In order to unlock the door to the store where the laboratory equipment were stored, a security man on duty must first unblock the burglary proof before the store keeper can gain access to use his key to open the store.

The 1st accused/Respondent was not caught in the act nor was he identified by the security men who were held and beaten up.

The 1st accused/Respondent and other co-accused persons were arraigned before a magistrate court on a six count charge. He was specifically charged with :

(1) The conspiracy to commit a felony, to wit store breaking and under section 495(a) of the criminal code cap 36 vol. 1 laws of Anambra State 1985 as applicable to Enugu State.

(2) breaking and entering the laboratory store of the UNTH Enugu with intent to commit a felony punishable section 380 (a) of the criminal code.

(3) breaking out of the laboratory store of UNTH under section 380(b) of the criminal code.

(4) stealing 10 microscopes valued N45.000 (Forty-Five Thousand Naira) an offence punishable under section 353 (12) of the criminal code.

The charge against the 2nd and 6th accused persons were later dropped at instance of the DPP and their names consequently struck out from the charge. At the magistrate court, the 1st accused/Respondent and four other accused persons pleaded not guilty to the charges. After hearing the case for the prosecution and of the defence, the trial magistrate found the 1st accused,/Respondent guilty and sentenced him. Some of the other accused persons were discharged and acquitted on all counts.

The 1st accused/Respondent dissatisfied with the decision of the magistrate court appealed to the Enugu State High Court sitting in its appellate capacity.

After hearing the submissions on behalf of the 1st Accused/Appellant as well that of the DPP, the court, gave its verdict on 11th December, 2003, setting aside the judgment of the trial magistrate court, it discharged and acquitted 1st accused. The prosecution dissatisfied with the decision of the High Court appealed to this court after obtaining leave to appeal on 4th July, 2005.

The Notice of Appeal which contained five grounds of Appeal was dated and filed 19th April, 2005.