Emmanuel Abarshi V. Commissioner of Police (2004)

LawGlobal-Hub Lead Judgment Report

BULKACHUWA, J.C.A.

The appellant, as accused was first arraigned before the Chief Magistrate Court, Wuse on 15th February, 1996 on a First Information Report (FIR) of an alleged theft, contrary to section 289 of the Penal Code.

The appellant, an assistant inspector of prisons, being entrusted with the house of one Emmanuel Mato, an Assistant Controller General of Prisons who traveled to Lagos on an official assignment, was said to have stolen a video, a television with their remote controls, a food blender and a flask from the house. The appellant as accused, before the Chief Magistrate Court, denied the information in the F.I.R. The prosecution thereafter called 5 witnesses and tendered exhibits, in a ruling delivered on the 28/8/96 the trial chief magistrate found that a prima facie case has been made out against the appellant and framed a charge, against him, of criminal breach of trust contrary to section 312 of the Penal Code of the items listed above.

The appellant pleaded not guilty to the charge, recalled the PW1, PW2 and PW3 for further cross examination in his defence. In a considered judgment delivered on 9/9/97 the trial Chief Magistrate found the appellant guilty as charged and convicted him and sentenced him to a term of 12 months imprisonment with an option of fine of N1000 and payment of N2000 compensation to PW1 within one month or serving an alternative term of imprisonment for 3 months.

The appellant being dissatisfied, appealed to the High Court of the FCT in its appellate jurisdiction on ten grounds of appeal, three of the grounds complaining that the FIR, the charge and the amended charge were all read to the appellant by the trial Chief Magistrate in chambers in contravention of the provisions of section 33(3) of the 1979 Constitution. On hearing the appeal, the lower court found no substance in it and dismissed same affirming the conviction and sentence of the appellant by the trial Chief Magistrate.

The appellant dissatisfied now appealed to this court on these grounds of appeal.

Ground 1

The learned justices of the appellate division of the High Court of Justice, Abuja erred in law by holding that it is not unconstitutional to sit in chambers and not making a finding that the whole trial was a nullity since the constitutionality of hearing criminal proceedings in public was not adhered to and same is a fundamental breach which vitiates the entire proceedings.

Ground 2

The decision cannot be supported having regard to the evidence. From these two grounds the appellant formulated a sole issue for the determination of the appeal in an amended brief deemed filed on 16/10/01 to wit;

Whether the trial and conviction and the subsequent judgment of the High Court is not invalid, null and void and of no effect.

The respondent in his brief which by the leave of this court was deemed filed and served on 3/6/02 formulated two issues which are produced hereunder:

(1) Whether then High Court of Justice Abuja was right in holding that the sitting in chambers by the magistrate court is constitutional?.

(2) Whether having regard to the totality of evidence adduced, the appellant ought to have been convicted?.