John Edakarabor & Anor V. Commissioner of Police, Delta State (2007)

LawGlobal-Hub Lead Judgment Report

STANLEY SHENKO ALAGOA, J.C.A.

This is an appeal against the judgment of I.E. Ogbodu. J of the High Court of Justice Sapele delivered on the 15th January, 2004 in appeal No. HCI/1CA/200 1 – Commissioner of Police V. Chief Peter Tete &. 2 Ors in which the learned trial Judge upheld the ruling of the Chief Magistrate Court Abraka overruling the Appellants’ submission of no case to answer at the close of the prosecution’s case in charge NO.MAB/12C/98 and remitting the case back to the trial Chief Magistrate for continuation and determination. The facts leading to this appeal are as follows- The above named Appellants and one Peter Tete who is now late were charged on a four count charge in the Chief Magistrate Court at Abraka for various offences under the criminal code. The accused pleaded not guilty and the case went into trial with the prosecution calling five witnesses. At the end of the prosecution’s case, the Appellants’ counsel made a no case submission, contending that a prima facie case had not been made out against the accused persons. The trial Chief Magistrate held that a prima facie case had been made out against all the accused persons on counts (1) (ii) (iii) and discharged the 3rd accused who is now the Appellant in this appeal on count (iv). The accused persons were thereupon called to defend themselves.

Dissatisfied with the ruling of the Chief Magistrate, the accused persons appealed to the High Court of Delta State sitting at Sapele. Before the appeal could be heard in the High Court, the 1st accused person Chief Peter Tete died and his appeal was understandably abandoned leaving the other accused persons to prosecute their appeal and who for the purposes of this appeal are designated 1st and 2nd Appellants. The appeal went on to be heard by the learned trial Judge who dismissed same. Dissatisfied the accused have appealed to the Court of Appeal with leave granted on the 9th June, 2005. Deemed as properly filed and served along with the leave are two notices of appeal filed on the 19th January, 2004 on behalf of the 1st and 2nd Appellants. Grounds 1 and 2 which are the same for both Appellants read as follows –

GROUND 1 – The learned trial Judge of the lower court erred in law and occasioned a grave miscarriage of justice by dismissing the appeal from the magistrate court and ordering the remittance of the case back to the magistrate court for continuation when a prima facie case had not been made out against the Appellant at the close of the prosecution’s evidence.

GROUND 2 – The learned Judge of the lower court erred in law and occasioned a grave miscarriage of justice by ordering the remittance of the case back to the Trial Magistrate Court for continuation of the case which trial is a nullity, unconstitutional and void ab initio.

A third ground of appeal which applies to the 1st Appellant alone reads as follows –

GROUND 3 – The learned Judge of the lower court erred in law and occasioned a grave miscarriage of justice by ordering the remittance of the case back to the trial Magistrate court for continuation when neither the charge sheet nor the prosecution’s evidence disclosed any offence under the law against the Appellant.

When this appeal came up for hearing on the 4th October, 2007, N. J. Edeme (Mrs) Counsel for the Appellants adopted and relied on the joint brief of argument of the Appellants dated 4th July, 2005 and filed on the 7th July, 2005 and urged this court to set aside the order of the trial court on the accused persons to open their defence and also to set aside the charge against the Accused/Appellants. Mrs. Edeme also informed this court of the death of the 1st Appellant John Edakarabor. P. Mekako Esq Principal Legal officer Ministry of Justice Delta State, with him P. Omatsone (Mrs) also Principal Legal Officer Ministry of Justice Delta State first informed this court that on the 6th June, 2006, Chief Ogefere (who prepared and signed the Appellants’ joint brief of argument) informed this court of the death of the 1st Appellant and therefore withdrew the appeal against the 1st Appellant. Mr. Mekako referred to the Respondent’s Brief of argument dated the 6th October, 2005 which was deemed filed on the 6th June, 2006. He adopted and relied on the said Respondent’s Brief of argument and urged this court to dismiss the appeal of the 2nd Appellant.

From the grounds of appeal, the Appellants formulated the following five issues for determination by the Court of Appeal at pages 4-5 of the Appellants’ Brief of argument –

(I) Whether a prima facie case of criminal libel was made out against the 1st Appellant to warrant his being ordered to enter his defence.

(II) Whether the joint trial of the Appellant with two others in unrelated offences allegedly committed independently for a period of about four years is not a nullity in the circumstances of this case?

(III) Whether the charge against the 1st Accused/Appellant and/or the prosecution’s evidence disclosed any offence under the law.

(IV) Was a prima facie case of demanding N5,000.00 “with threats of any injury or detriment of any kind to the Ovie of Abraka” made against the 2nd Appellant contrary to section 406 C.C. L.B.S.N. 1976 in the circumstance of this case?

(V) Was the lower court’s remittance “back to the trial court for it to be concluded” in the circumstances of this case contrary to section 286 CPL and violates Appellants Constitutional Rights in sections 36(5), (8), (11), (12) of the Constitution of Federal Republic of Nigeria 1999?