Fidelis Ubanatu V Commissioner Of Police (2000)

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OGWUEGBU, J.S.C. 

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.

2. 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.
3. 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.

2. 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