Fidelis Ubanatu V Commissioner Of Police (2000)
LAWGLOBAL HUB Lead Judgment Report
On 4th October, 1999 this appeal came before us. After hearing counsel for the appellant and the respondent, I allowed the appeal and indicated that I would give my reasons for allowing the appeal today. I now give my reasons for the judgment.
The appellant was arraigned on a two count charge in the Warri Magistrate’s Court, Delta State of the following offences:-
“Court 1: that you,Fidelis Ubanatu” alias David Ekemute” (m) between the 7th Day of November, 1992 and 12th Day of November, 1992 at Warri in the Warri Magisterial District, knowingly caused one David Moroh (m) or 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 or defunct Bendel State of Nigeria. 1976 as applicable in Delta State.
Court 2: That you, Fidelis Ubanatu “alias David Ekemute” (m) between the 10th day of August. 1994 and the month of September, 1994 at Warri in the Warri Magisterial District, knowingly caused one David Morah (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. II. Laws of the defunct Bendel State of Nigeria, 1976 as applicable in Delta State.”
He pleaded not guilty. The prosecution called six witnesses. At the close of the prosecution’s case, appellant’s counsel made a no case submission to which counsel for the prosecution replied. The learned Chief Magistrate, Kofi, Esq. overruled the submission. The appellant was dissatisfied with the ruling and appealed to the High Court of Delta State, Warri Judicial Division. Narebor. J. in his appellate jurisdiction, dismissed the appeal and ordered the appellant to appear before the Magistrate’s Court to defend himself. He was still not satisfied and appealed to the Court of Appeal, Benin Division. The court below dismissed his appeal and affirmed the decision of Narebor. J. hence the further appeal to this court.
Briefs of argument were duly filed. The appellant identified the following issues in his brier for our determination:
“1. Whether the Court of Appeal considered the comments and interpretation of Exhibits 1 and 3 before upholding the overruling of no case submission of both the Magistrate Court and the High Court, Warri.
- Whether the essential ingredients of the offence contained in Section 323 of the Criminal Code applicable in Delta State were exhaustively enunciated by the Court of Appeal.
- Whether the ingredients of actus reus and mens rea are not embedded in section 323 of the Criminal Code applicable in Delta State or in other words, whether section 323 of the Criminal Code under consideration was one of strict liability”
Two issues were formulated in the respondent’s brief. namely:
“1. Whether this appeal from the decision of the Court of Appeal is valid.
- Whether the Court of Appeal was right in affirming the decision of the High Court dismissing the no case submission.”‘
I agree with the learned respondent’s counsel that Issue No.3 is not covered by any of the two grounds of appeal filed. It is incompetent and it is accordingly struck out. I am, however, unable to hold that the first two issues do not arise from the grounds of appeal in spite of the short-comings of the brief. I will therefore consider the appeal on the appellant’s Issue numbers (1) and (2) which embrace the remaining issue identified in the respondent’s brief.
The charge is based on Exhibits “1” and “3” which are letters written to P.W.I (David Moroh) by the appellant in pseudo names. For a better appreciation of issues involved in the appeal, I will reproduce the two exhibits in full. Exhibit “I ” reads as follows:-
“77 Emebiren Street
Okumagba Layout, Warri
7th November, 1992.
Mr David Moroh.
Dowell Schlumberger (Nig) Ltd.
P. O. Box 344, Warri.
Dear Mr. Moroh.
Beware of Mr. Francis Obuninta:
I am a friend of Mr. Francis Obuninta, one of your Mechanics in Dowell Schlumberger, Warri, Obuninta and I have been very close friends for a long time now that there is no secrets (sic) between us.
I am compelled to write to warn you against Obuninta for two reasons:
- Mr. Obuninta hates you and wants to eliminate you by all means
- As a born again Christian, I would not like to see anybody and a fellow Christian for that matter, die prematurely due to the inordinate ambition of a subordinate staff.
Mr. Obuninta complains bitterly and frequently about you, saying you are blocking his way job-wise. He has been consulting very powerful and notorious native doctors to use diabolical means to kill you. He even swore to use hired killers to eliminate you if his diabolical means completely fail him.
I have been warning Mr. Obuninta to desist from his evil machinations against you but he has refused to heed my advice. He is inordinately ambitious and can go any length to achieve his ambition. As a Christian, all these have made me to part ways with him.
In your own best interest, I would suggest that you take either of the following two actions against Obuninta to forestall his evil plans against you:
1) Relieve him of his job whenever he commits any offence no matter how light the offence might be.
2) Transfer him to Port-Harcourt as soon as possible. You may have other more effective means to deal with him severely.
Not to heed my advice/warning and suggested actions to deal with Mr. Obuninta might be too dangerous so act swiftly and decisively to save your life and job.
(sgd) David Ememute. ”
Exhibit “3” reads:
10th August. 1994
Mr. David Moroh,
Dowell Schlumberger (Nig.) Limited.
P. O. Box 344, Warri.
Obuninta’s Plot to Murder you!!!
You will recollect that sometime last year I wrote to warn you that Mr. Francis Obuninta, your colleague in Dowell Schlumberger, was planning to hire some people to kill you. I then advised you in the letter to either work for his transfer to Port Harcourt or terminate his appointment with the Company without delay
You seemed to have down-played my friendly and Christianly advice.
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 handwork. He is still plotting to eliminate you, vowing that you will definitely not survive this second enslaught.
Life is too precious to allow an over-ambitious man like Obuninta to have his way, thereby leaving your beloved family to suffer your loss. God forbit! (sic) Eliminate Obuninta by all means before he eliminates you.
So, my dear David, a word is certainly enough for the wise.
Following a petition written to the police in Benin City, the house of the appellant was searched and copies of Exhibits .. 1″ and “3” were recovered together with the typewriter used by him in typing the letters.
In overruling the submission of the appellant the learned trial Chief Magistrate in his ruling said:
“I have carefully perused and considered the evidence adduced by the prosecution and the submission of learned defence counsel, and hold that the prosecution has made out a prima facie case against the accused sufficiently to require his being called upon for his defence on both counts.”
As stated earlier in this judgment, the accused appealed unsuccessfully against the ruling to the High Court and the Court of Appeal. He has further appealed to this court contending as he did in the courts below that the prosecution did not prove the essential ingredients of the offence charged.
It will be appropriate at this stage to define the expression “prima facie case” The courts and authors have defined it in various ways. It is defined in Osborn’s Concise Law Dictionary, 8th ed. by Rulterford and Bone, at page 259 as:
“A case in which there is evidence which will suffice to support the allegation made in it, and which will stand unless then is evidence to rebut the allegation. When a case is being heard in court, the party on whom, the burden of proof rests must make out a prima facie case, otherwise the other party will be able to submit that there is no case to answer, and if he is successful, the case will be dismissed.”
It is also defined in Black’s Law Dictionary, 6th edition thus:
“Such as will prevail until contradicted and overcome by other evidence. Pacific Telephone & Telegraph Co. v. Wallace, 158 Or. 210, 75 O.2d. 942, 947. A case which has proceeded upon sufficient proof to that stage where it will support finding if evidence to contrary is disregarded…..
The expression “prima facie case” has also received numerous definitions by our courts. In Ajidagba v. Inspector-General of Police (1958) SCNLR 60; (1958) 3 FSC 5 at 6, Abott, F. J. attempted to find a definition for the expression. He said:
“We have been at some pains to find a definition of the term “prima facie case, “I” The term, so far as we can find has not been defined either in the English or in the Nigerian Courts. In an Indian case, however, Sher Singh v. Jitendranathsen (1931) I. L. R. 50, Calc. 275, we find the following dicta;-
“What is meant by a prima facie (case) It only means that there is a ground for proceeding…. But prima facie case is not the same as proof which comes later when the court has to find whether the accused is guilty or not guilty …. “the evidence discloses a prima facie case when it is such that if uncontradicted and if believed it will be sufficient to prove the case against the accused.” (per Lort-Williams, J.)”
In Duru v. Nwosu (1989) 1NWLR (PI. 113) 24 at43, Nnamani, J.S.C. said:
“It seems to me the simplest definition is that which says that “there is ground for proceeding,” In other words, that something has been produced to make it worthwhile to continue with the proceeding. On the face of it, “suggests that the evidence produced so far indicates that there is something worth looking at.”
See also Ikomi v. The State (1986) 3 NWLR (Pt. 28) 340 at 366 and sections 286 and 287( 1) of the Criminal Procedure Law, Cap. 49 Laws of Bendel State, 1976 which provide for situations where the prosecution failed to establish a prima facie case, (section 286) and (section 287 (1), the converse.
I will also refer to the English Practice Note issued by Parker, L.C.J contained in (1962) I All E. R. 448 as to when a no case to answer can properly be made and upheld. The circumstances are:
(a) when there has been no evidence in the alleged offence;
(b) when the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it.”
See also Ibeziako v. Commissioner of Police (1963) 1 All N.L.R. 61 and Atano v. Attorney-General, Bendel State (1988) 2 NWLR (PI. 75) 201.
Having regard to the above definitions of the expression. “prima facie case “, can it be said that the learned trial Chief Magistrate rightly overruled the no case submission made by the learned appellant’s counsel One should not go outside the evidence (oral and documentary) tendered by the prosecution in coming to the conclusion. Exhibits “1” and “3”., form part of that evidence.
Section 323 of the Criminal Code under which the appellant was charged provides as follows:
“323. Any person who, knowing the contents thereof, directly or indirectly causes any person to receive any writing threatening to kill any person is guilty of a felony, and is liable to imprisonment for seven year.”
At the close of the prosecution’ case, a trial court should consider whether there is evidence which will suffice to support the allegation made in the charge and whether such evidence will stand unless the accused produces no evidence to rebut it. If at the close of the case for the prosecution there is no proof of an essential element in the said charge and a submission of no case is made, a trial court ought to uphold the submission.
In a charge under section 323 of the Criminal Code, the prosecution must prove that:
(i) the accused sent or delivered the letter,
(ii) knew the contents of the letter.
(iii) the contents of the letter amount to threat to kill or murder.
See L. v.Boucher 4.C.&P. 562 (172 E. R. 826) and R v. Tylek &Or 1 Mood 428 (168 E. R. 1330). In this case, the appellant admitted writing Exhibits ‘”1″ and “3”. (See Exhibit 9). When considering whether a “prima facie case” had been made, Exhibits “1” and ‘3″ were before the learned Chief Magistrate and it was for him to determine whether the contents of Exhibit “1′” or “3” or both amounted to a threat to kill or murder P.W.I as provided in section 323 of the Criminal Code. He should have construed the two exhibits.
There is no way Exhibit” 1″ or “3” can be construed to amount to a threat to kill. The contents of both exhibits are friendly advice, warning and suggestions to P.W.1 as to how to protect himself from Francis Obuninta (P.W.2) who was planning to kill him. part of Exhibit “1” reads:-
“I have been warning Obuninta to desist from his evil machinations against you but he has refused to heed my advice. He is inordinately ambitious and can go any length to achieve his ambition. As a Christian, all these have made me to part ways with him.
In your own best interest, I would suggest that you take either of the following actions against Obuninta to forestall his evil plans against you ….
Part of Exhibit “3” reads:
“You will recollect that sometime last year I wrote to warn you that Francis Obuninta. your colleague in Dowell Schlumberger, was planning to kill you. I then advised you in the letter to either work for his transfer to Port Harcourt or terminate his appointment with the Company without delay. You seemed to have down-played my friendly and Christianly advise. 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 handwork. He is still plotting to eliminate you ……………
Based on Exhibits “1” and “3” as well as the oral evidence adduced by the prosecution, it is my view that an essential ingredient of the offence charged, which is, threat to kill or murder PW.1 was not proved. The prosecution would not be said to have made out a prima facie case requiring any explanation from the appellant. See Ajidagba & 4 Ors. v. Inspector General of Police (1958) F.S.C.5; (1958) SCNLR 60 and The Queen v. Ogucha (1959) 4 F.S.C. 64;(1959) SCNLR 154, The most that can be said of the conduct of the appellant is that he was effecting a public mischief, which offence, does not exist in our criminal law.
The learned trial Chief Magistrate was in error to have overruled the no case submission made by counsel. The High Court and the court below equally erred when they affirmed the ruling of the learned Magistrate to the effect that a prima facie case was made out by the prosecution. The submission of no case to answer should have been upheld by the learned Chief Magistrate. I will therefore allow the appeal and set aside the decision of the court below dated 8-3-99. Tbe appellant is accordingly acquitted and discharged.