Commissioner Of Police V. Prince Micheal Ovrawah (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Delta State sitting at Asaba in Appeal No A/7CA/2014 given on the 8th day of December 2015 in exercise of its appellate jurisdiction on an appeal by the respondent against the judgment of the Oshimili South Area Customary Court (the trial Court) which convicted and sentenced him to terms of imprisonment, with option of fine, for the offences of threat to life and criminal defamation of one Sir (Hon.) Mathias O. C. Eto (PW1). Respondents appeal to the High Court was upheld and the judgment of the trial Customary Court set aside and he was discharged and acquitted on both counts.

Now, the panel of the trial Customary Court before which respondent was originally arraigned was constituted of Hon. S. A. Idise as President and one Ogbueshi V.I. Okonkwo as 1st Member. Respondent pleaded not guilty before the Idise and V.I. Okonkwo panel and hearing commenced with the prosecution calling five witnesses before closing its case. Respondent then opened his defence with his evidence, but before he could conclude it, the 1st member of the

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panel, V.I. Okonkwo, died. A new panel of Hon. S. A. Idise still presiding as the President of the Court but with a new 1st member in Mrs. T. N. Mokwunye was thus reconstituted to hear the charges afresh. Respondent was subsequently re-arraigned.

In proof of its case in this new trial, the prosecution called only the complainant, Sir (Hon.) Mathias O.C. Eto who simply tendered a certified true copy of the proceedings of the defunct panel as Exhibit E2 and relied on same as his evidence in the trial de novo. The said record which contained the evidence of four other prosecution witnesses including the policeman who investigated the complaint of PW1 was admitted in evidence as Exhibit E2. No reason was given for the failure to recall these other witnesses in this fresh trial.

Respondent then testified for himself in his defence and called two witnesses.

It is noteworthy that even respondents attempt to adduce evidence in examination-in-chief was rejected by the Court when it ruled that he should also limit himself to the adoption of the evidence he gave to the defunct panel in Exhibit E2 (see p.14 of the records). It was not persuaded

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by his argument that since the trial was starting parties were no longer bound by the proceedings before the defunct panel. It eventually passed judgment convicting him on both Counts and sentenced him to terms of imprisonment with an option of fine as previously said. It is common ground that it was the Courts new Member 1, Mrs Mokwunye, who was not in the earlier trial that delivered the judgment.

Dissatisfied with that judgment, respondent lodged the appeal earlier mentioned to the High Court of Delta State. That Court faulted the judgment of the trial Customary Court, holding first that the evidence of the prosecution witnesses as contained in Exhibit E2 was weightless and the case was not justly determined by the trial Customary Court as Mrs Mokwunye who did not watch them testify was not in a position to attach credibility to their evidence and; secondly, that in any case essential elements of the two charges of criminal defamation and threat to kill – publication, in the case of criminal defamation, and threat to kill, in the case of the offence of Threat to kill – were not proved by the prosecution. On that basis, it set aside the

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judgment of the Customary Court convicting the respondent and in its place entered a verdict discharging and acquitting him.

The prosecution, represented by the Commissioner of Police, is in turn dissatisfied with that judgment and has lodged the instant appeal to this Court. It anchored its appeal on eight grounds all of which complain about the lower Courts decision on Exhibit E2 and its holding that threat to kill the complainant by the respondent was not proved by it at the trial Court. In other words, it impliedly accepts the decision of the lower Court that criminal defamation was not proved.