Rosemary Onwusor v. The State (2024)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UGOCHUKWU ANTHONY OGAKWU, JCA (Delivering the leading judgment)

This appeal is against the decision of the High Court of Borno State in charge No. BOHC/MG/CR/47/2023: The State v. Rosemary Onwusor delivered on 19th January, 2024.

The appellant, who was the defendant at the lower court, was arraigned on a two-count charge of criminal trespass and mischief by causing wrongful destruction of property.

The appellant pleaded not guilty, thereby putting the prosecution to proof of the offences charged.

In proof of the offences charged, the prosecution called three witnesses and tendered seven exhibits while the appellant testified in her defence and called three other witnesses and tendered five exhibits.

In its judgment, the lower court convicted the appellant on the count of criminal trespass but discharged and acquitted the appellant on the count of mischief. It then proceeded to sentence the appellant to pay a fine of N100,000.00 or in default, a term of three years imprisonment.

The appellant was dissatisfied with the decision of the lower court, and she appealed against the same by notice of appeal filed on 9th March, 2024. The chafed judgment of the lower court is at pages 47 – 59 of the records of appeal, while the notice of appeal is at pages 60 – 64 of the records of appeal.

The records of appeal having been compiled and transmitted, the parties exchanged briefs of argument which learned counsel adopted and relied upon at the hearing of the appeal. The said briefs are the appellants brief filed on 26th April, 2024, the respondents brief filed on 6th June, 2024 and the appellants reply brief filed on 21st June, 2024.

In the appellants brief of argument, which was filed on 26th April, 2024, the appellant nominated four issues for determination, namely:

1. Whether the trial court was right to have convicted the appellant for the offence of criminal trespass contrary to section 348 Penal Code Law of Borno State when the ingredients of the offence has not been proved by the prosecution. (Distilled from ground 2 of the appellant notice of appeal)
2. Whether presenting exhibit M (Power of Attorney executed by PW1 and Mohammadu D. Nangare) before the trial court is not an abuse of the process of the court when the same exhibit gives no title to PW1 vide the decision of the Court of Appeal exhibit B. (Distilled from ground 2 of the appellants notice of appeal)
3. Whether the refusal of the trial court to accord the defence the right to cross examine Mohammadu D. Nangare who was listed as a prosecution witness (but was not called by the prosecution as a witness) amount to denial of fair hearing thereby causing miscarriage of justice. (Distilled from ground 1 of the appellant notice of appeal)
4. Whether the prosecution has proved the case beyond reasonable doubt as contemplated by section 135 of the Evidence Act, 2011. (Distilled from ground 1 and 3 of the appellant notice of appeal)

The respondent filed its brief of argument on 6th June 2024, wherein a sole issue was crafted for determination as follows:

Whether the respondent has proved the offence of criminal trespass against the appellant as required by law?

Additionally, the respondent incorporated a preliminary objection in its brief of argument, challenging the jurisdiction of the court to entertain the appeal on the grounds that the issues for determination were incompetent and that some other grounds of appeal had been abandoned. The appellant filed a reply brief on 21st June, 2024 in answer to the preliminary objection. As the preliminary objection is aimed at scuttling the hearing of the appeal in limine, conventional wisdom dictates that the said preliminary objection be taken and decided before proceeding any further.

The preliminary objection

The quiddity of the respondents submission on the preliminary objection is that the appellant distilled issue numbers one and two from ground 2 of the grounds of appeal, issue number three from ground 1 of the grounds of appeal and issue number four from grounds 1 and 3 of the grounds of appeal.