Sylvester Eze V. Commissioner Of Police (Benue State) (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ALI ABUBAKAR BABANDI GUMEL, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the decision of the Benue State High Court delivered on 16/10/2006 in Appeal No: MHC/6CA/2006, while sitting in the course of its appellate jurisdiction against the decision of the Chief Magistrate Court, Aliade in case no: CMCA/76/2004. The Appellant herein was the Accused person before the Chief Magistrate Court.

He was arraigned on a one count charge of theft of money in the sum of N732,950 = contrary to S.287 of the Penal Code Law of Benue State. During the trial, he pleaded not guilty. To prove his guilt, the prosecution called and relied on the evidence of 4 witnesses.

At the close of the case for the prosecution, learned Counsel made a no case submission on behalf of the Appellant. The no case submission was overruled. In his ruling, overruling the no case submission, the learned Senior Magistrate, found that though a prima facie case of theft had not been established against the Appellant, he went further to hold that upon his review and consideration of the evidence before him a prima facie case of criminal breach of trust had been established against the Appellant. Upon this view, and while relying on some powers enabling him in that behalf under the Criminal Procedure Code Law of Benue State, the learned Magistrate proceeded to charge the Appellant with the offence of criminal breach of trust contrary to S:312 of the Penal Code Law of Benue State.

Against this decision and action of the Magistrate court, the Appellant appealed to the Benue State High Court in a notice of appeal dated 14/11/2005 but filed on 23/11/05. That appeal was predicated on 5 grounds of appeal with very copious particulars. At the hearing of that appeal, learned Counsel abandoned grounds 1-4 of the grounds of appeal and proceeded to argue ground 5 only. After hearing of the appeal, the 2 learned judges of the panel dismissed the appeal for lacking in merit.

The Appellant was dissatisfied with the order of the High Court dismissing his appeal. He appealed to this Court in a notice of appeal dated and filed on 26-10-2006. It contains 3 grounds of appeal.

To argue the appeal before this Court learned Counsel on behalf of the Appellant formulated 3 issues for determination.

They are:-

1. Whether the lower Court was right and not in breach of the principles of natural justice to wit: fair hearing: to have refused to hear Appellant’s full arguments in support of grounds 1, 2, 3 and 4 of Appellants Notice of Appeal before it when it compelled and prevailed upon Appellant’s Counsel to withdraw and/or abandon them when the Respondent did not raise any objection to their validity or competency.
2. Whether the lower Court was not in breach of the principles of natural justice. To wit: fair hearing. When it ordered that Appellant should go back to the trial Chief Magistrate Court. Aliade and continue with his trial thereat when the said trial Chief Magistrate Court had already prejudged so many issues which are prejudicial to the Appellant in its lengthy ruling on the no-case submission.
3. Whether the decision of the Lower Court to the effect that Appellant should go back to the trial Chief

Magistrate Court Aliade and continue to face trial for the offence of criminal breach of trust contrary to Section 312 of the Penal Code is right and proper having regard to the evidence adduced.

In response, learned Counsel on behalf of the Respondent, also formulated the following 3 issues. They are:-

1. Whether from the circumstances of the case the lower Court is in Breach of the principle of Natural Justice, to wit: Appellant’s right to fair hearing when Appellant voluntarily withdrew grounds 1, 2, 3, and 4 of his appeal.
2. Whether Lower Court was right in upholding the ruling of the trial Magistrate and that same is not prejudicial to the defence of the Appellant.
3. Whether the Lower Court was right in dismissing the Appellant’s appeal and in ordering the continuation of trial before the some Magistrate’s Court.

To respond to the issues argued in the Respondent’s brief of argument, learned Counsel to the Appellant filed a reply brief.

At the hearing of the appeal, learned Counsel to the Appellant Mr. C. O. Alechenu, appeared with learned Counsel Mrs. E. R. Terngu. No Counsel appeared on behalf of the Respondent. Upon a check at the Registry of this Court it was discovered that the Respondent had been duly notified of the hearing date via a hearing notice duly served on 23/03/2012. Against this background, hearing of the appeal proceeded as scheduled. Because the Respondent had duly filed a brief of argument, the appeal was deemed to have been duly argued by the Respondent upon it’s filed and served brief of argument.

Learned Counsel to the Appellant identified, adopted and relied on his briefs and urged on the Court to dismiss the notice of preliminary objection and proceed to take this appeal on its merits.

And for the appeal itself, he urged on us to allow it and set aside the order of the lower Court dismissing the Appellant’s appeal.