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; –

“Whether or not the two letters exhibits 1 and 3 contain threat to kill David Moroh.”

The ground of appeal is clearly complaining against the whole decision of the lower court affirming the dismissal of the appellant’s submission of no case to answer by the trial Chief Magistrate Court. Taking into consideration that 6 witnesses testified for the prosecution and a number of documentary evidence including the two letters Exhibit 1 and 3 which have been exclusively made the subject of issue No.2 in question, were tendered and received in evidence before the delivery of the ruling dismissing the appellant’s no Case submission, confining the issue No. 2 for determination exclusively to the letters Exhibits 1 and 3 is clearly not in line with the complaint of the appellant in the ground of appeal. This short coming no doubt arose as a result of the action of the learned counsel to the appellant in framing his issue No. 2 exclusively from the particulars of the ground of appeal rather than from the ground of appeal itself. It is indeed settled practice that issues for determination in any appeal must be related to and arises from the ground or grounds of appeal alone. See Attorney-General Anambra State v. Onuselogu Enterprises Ltd. (1987) 4 NWLR (pt.66) 547; Oniah v. Onyia (1989) 1 NWLR (pt.99) 514 at 527; Onisupebi v. Saibu (1982) 7 SC 104 at 110; Western Steel Works Limited v. Iron & Steel Workers Union of Nigeria (1987) 1 NWLR (pt.49) 304; Ugo v. Obiekwe (1989) 1 NWLR (pt.99) 566 at 580; Okpala v. Ibeme (1989) 2 NWLR (pt.102) 208 at 220 and Egbe v. Alhaji (1990) 1 NWLR (pt.128) 546 at 567. Therefore the particulars of a ground of appeal no matter how beautifully and comprehensively drafted cannot support any issue for the determination of the appeal. For this reason, the appellant’s issue No.2 which has not been framed from the grounds of appeal shall not be taken into consideration in the determination of this appeal. However in its place I shall use the respondent’s issue No.2 which was clearly formulated from the ground of appeal itself and not from the particulars thereof. In other words this appeal shall now be determined on the following 2 issues:-

1. Whether the lower court misdirected itself on the charges and if so whether or not the misdirection occasioned substantial miscarriage of justice.
2. Whether the appellant’s appeal against the over-ruling of the no case submission was rightly dismissed.

It is not at all in dispute that the learned Judge of the lower court in his judgment rather summarised the 2 counts against which the appellant was charged at the trial Warri Chief Magistrate Court as follows at page 44 of the record of appeal.

“1. Threatening to kill 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. Threatening to kill 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 as applicable in Delta State.”

It was argued for the appellant by his learned counsel that the omission of the specific essential ingredient of the offence charged namely, –

“Caused one David Moroh to receive a letter threatening to kill him.”

is a very serious misdirection which will lead to the failure of the charges against the appellant having regard to the cases of Aderemi v. The Police (1961) WNLR 137 and Onagoruwa v. The State (1993) 3 NWLR (pt.303) 49 at 85. Learned counsel further contended that written threat to kill David Moroh’ is an essential and indispensable element of the offence charged, and to drop it from the charge is a misdirection which no doubt resulted in serious miscarriage of justice in this case on the authority of the case of Oguke v. The State (1988) 4 NWLR (pt.86) 36 at 38. Counsel therefore claimed that it was this misdirection that resulted in the court below holding that the learned trial Chief Magistrate rightly overruled the no-case submission.

In his re-action to the arguments of the appellant on this issue, the learned counsel to the respondent pointed out that the slight omission in stating an ingredient in the charge in the judgment of the appellate court is not fundamental, neither was it detrimental to the case of the appellant. That the record of appeal which contained the charges of the Magistrate court spelt out the charges clearly and correctly. That the lower court while determining the issues brought before it, was clearly not in doubt as to the ingredients of the offence with which the appellant was charged as can be seen in the entire judgment. Learned counsel concluded by pointing out that as far as the record of appeal is concerned, the lower court was properly directed as to the charges and the ingredients to prove them, since having regard to the analysis of the appeal by the lower court in its judgment, the complaint of the appellant in this issue is quite unfounded.

It is significant to note that this stage that although the learned counsel to the appellant in the appellant’s brief of argument and his oral submissions before us mainly complained against the leaving out of a vital ingredient of the offence charged under section 323 in the two counts quoted in the judgment of the lower court now on appeal in this court, the learned counsel to the appellant infact had committed even a more serious omission in quoting the two counts in the lower court when he also inadvertently left out the Law under which the appellant was charged when he quoted the two counts in his own appellant’s brief of argument at page 2 as follows:-

“Count 1: Threatening to kill and thereby committed an offence punishable under section 323 … of the defunct Bendel State of Nigeria, 1976 as applicable in Delta State.

Count 2: Threatening to kill and thereby committed an offence punishable under section 323 … of the defunct Bendel State of Nigeria, 1976 as applicable in Delta State.”

Definitely the two counts as quoted in the appellant’s brief cannot even be described as charges under any Law not to talk of such charges being defective by leaving out an ingredient of the offence charged. This of course shows that the learned counsel to the appellant being a human being like the learned Judge of the lower court is also liable to make such ommission. To err is indeed human!

It is indeed true that the learned Judge of the lower court in his judgment now on appeal did not quote in full the two counts upon which the appellant was charged at the trial Chief Magistrate Court as contained at page 1 of the record of the appeal. Inspite of this omission, it is quite clear from the statement of the learned Judge of the lower court himself at page 44 of the record of appeal, immediately below the two counts quoted in the judgment where he said

“Although there is no complaint against the above charge in the memorandum of grounds of appeal, it is patent on the face of the charge as disclosed by the record of appeal (page 1) that count 2 is repetition of count 1. The two counts are identical.”

that the learned Judge was looking at the original counts at page 1 of the record throughout his consideration of the appellant’s submission, which culminated in the dismissal of the appellant’s appeal. In otherwords, the learned Judge of the lower court was guided throughout his judgment only by the original counts contained in the record of the trial Chief Magistrate court at page 1 and not by the counts as quoted by him in the opening paragraph of his judgment which which are at page 44 of the record. Therefore since the record of appeal which contains the original

counts upon which the dismissal of the appellant’s no-case submission was based at the trial Chief Magistrate Court has spelt out the charges clearly and correctly and it is upon this same record that the lower court based its judgment dismissing the appellant’s appeal, the possibility of any substantial miscarriage of justice being occasioned by the omission to quote the two counts in full, is clearly ruled out. This is because the lower court in the determination of the issues brought hefore it in the appeal, was clearly not at all in doubt as to the ingredients of the offence with which the appellant was charged as can be seen “in the entire judgment of that court. I am therefore of the view that as far as the record of the lower court is concerned particularly the judgment, the complaint of the appellant on this first issue for determination in this appeal is quite unfounded as the omission to

reproduce the two counts in full in the judgment of the lower court did not occasion any miscarriage of justice to justify any interference in the judgment of that court in this appeal.

The second issue for determination is whether the appeal against the overruling of the no-case submission was rightly dismissed by the lower court. The main argument of the appellant on this issue is that the two letters written by him do not contain any threat to kill David Moroh as alleged in the two counts against him to justify calling upon him to defend himself. This is because, according to the learned counsel to the appellant, in the absence of any threat to kill in the documents, the essential ingredient of the offence under section 323 of the Criminal Code was not proved to warrant the appellant being called upon to defend himself. The cases of Q v. Ogucha (1959) 4 FSC 64, (1959) SCNLR 154; Okora v. The State (1988) 5 NWLR (Pt.94) 255,12 SCNJ (Pt. II) 191 at 198 and Onagoruwa v. The State (1993) 7 NWLR (Pt. 303) 49 at 83 were cited and relied upon in support of this submission by the learned counsel who urged this court to allow the appeal and discharge and acquit the appellant.

The contention of the respondent however is that the submission of no-case to answer made by the appellant’s counsel at the trial Magistrate Court Was rightly over-ruled as credible evidence had been led to prove all the essential ingredients of the offence for which the appellant’ had been charged. That a prima facie Case had in-fact been made out by the prosecution at the close of its case in accordance with Section 287(1) of the Criminal Procedure Law of Bendel State 1976 sufficient enough to warrant the accused being called upon to make his defence as the appellant’s confessional statement and other evidence on record was not contradicted or discredited. Learned counsel referred to the Case of Okoro v. The State (1988) 5 NWLR (pt.94) 255 and other cases cited and relied upon by the appellant and submitted that all the cases do not apply to support the appellant’s Case. Learned counsel then referred to the evidence on record including the contents of the letters Exhibits 1 and 3 and the cases of Owonikoko v. The State (1990) 7 NWLR (pt.162) 381 at 388; Bello v. The State (1967) NMLR 1 and Olaniyan v. The State (1987) 1 NWLR (pt. 48) 156 at 160 and submitted that the no-case submission was rightly over-ruled by the trial Court and consequently the lower court was right in affirming that decision after dismissing the appeal.

It is significant to observe here that under Section 33(5) of our 1979 Constitution, it is a requirement that every person who is charged with a Criminal Offence will be presumed to be innocent until he is proved guilty. This is the presumption of innocence to which everyone charged with a Criminal offence is entitled. It is important to also observe that an accused person is not obliged to say anything in the course of his trial. See section 33(11) of the 1979 Constitution. An accused will only be obliged to make his defence to the charge if his remaining silent will result in his being convicted on the case made out against him by the prosecution. See the case of R. v. Mohammed Bode & Anor. (1944) 10 WACA 249 and section 138 (1) of the Evidence Act Cap. 112 of the Laws of the Federation 1990 which states:-

“If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.”

This burden remains on the prosecution up to the end of the case and never shifts. See Oteki v. Attorney-General Bendel State (1986) 2 NWLR (Pt. 24) 648. Thus in the prosecution for the offence under section 323 with which the appellant was charged in the two courts at the trial court, it is essential for the prosecution to prove:-

(a) That the accused caused one David Moroh to receive a letter.

(b) That the letter contains a threat to kill the said David Moroh.

(c) That the accused did so knowingly.

Thus, if at the close of the case for the prosecution the totality of the evidence on record fails to meet these essential requirements, then no prima facie case would have been made against the accused to require him to enter into his defence.

However, if the evidence adduced by the prosecution has met these essential ingredients of the charge, then prima facie case would have been made out against the accused to require him to defend himself against the charge.

In other words, when a court is giving consideration to a submission of no-case to answer, it is not necessary at that stage of the trial for the trial court to determine if the evidence is sufficient to justify conviction. The trial court only has to satisfy itself that there is a prima facie case requiring at least some explanation from the accused person. Evidence is said to disclose a prima facie case when it is such that if it remained uncontradicted and if believed will be sufficient for any reasonable tribunal to convict on it. See Ajidagba v. I.G.P. (1958) 3 FSC 5, (1958) SCNLR 60; Atano v. Attorney-General Bendel State (1988) 2 NWLR (Pt. 75) 201 and Abogede v. The State (1996) 5 NWLR (Pt.448) 270 at 280. See also section 287(1) of the Criminal Procedure Law of Bendel State and the requirement of proof in a no-case submission. It does not require proof beyond reasonable doubt as in the case of the requirement for conviction.

In the present case, in order to ascertain whether the prosecution had made out a prima facie case against the appellant to justify his being called upon to defend himself, it is necessary to examine the entire evidence on record adduced by the prosecution as was ably done by the learned Judge of the lower court in his judgment on pages 50 – 52 of the record. David Moroh who gave evidence as PW1 said at page 2 of the record as follows:-

“On 12/11/92 I was on duty at my working place when I received a letter from one David Okiemute by post. I read the letter. It was a letter of threat to my life.”

This witness was introduced to the appellant at the police station as the writer of this letter.

The Investigating Police Officer who testified as PW4 testified that he recovered the two letters Exhibits 1 and 3 from the appellant after executing a search warrant in the appellant’s house. A type writer with which the appellant typed the letter was also recovered from him. The witness also testified that the appellant in his confessional statement Exhibit 9 had admitted writing and signing the letters Exhibits 1 and 3 before posting them to David Maroh PW 1.

Furthermore, one of the two letters which are the subject of the charge against the appellant Exhibit 3 dated 10-8-1994 and addressed to PW 1 Mr. David Moroh contains the following paragraphs:

“I am sorry to learn that some hired killers attempted your life recently. I thank Almighty God that you narrowly survived that dastardly act. It was Mr. Francis Obuninta’s hand work. He is still plotting to eliminate you, vowing that you will not survive the second (sic) enslought. ”

In a nut shell, this was the evidence that was before the learned trial Chief Magistrate when he ruled against the appellant’s submission of no case to answer. This was also the same evidence on record that was scrutinised by the learned Judge of the High Court of Justice Warri before coming to the conclusion in his judgment of 28-9-1995 to dismiss the appellant’s appeal against the dismissal of his submission of no-ease to answer by the trial Magistrate court. The question now is whether I have any reason to disagree with the two concurrent decisions of the two lower courts on the dismissal of the appellant’s submission of no case to answer having regard to this evidence on record. The answer of course is in the negative because the lower court was quite right in dismissing the appellant’s appeal.

In the result, the appeal having failed, it is accordingly hereby dismissed. The judgment of Dr. Morubo Narebor J. of the Delta State High Court of Justice Warri delivered on 28-9-1995 is hereby affirmed.

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Other Citations: (1999)LCN/0616(CA)