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?
With the death of the 1st Appellant and the abandonment of his appeal, it necessarily follows that the issues that relate to his appeal will also have to be abandoned. The issues so affected are issues I, II and III which are hereby abandoned leaving issues IV and Vas the only two issues formulated for the determination of the 2nd Appellant’s appeal.
The Respondent on the other hand has formulated the following sole issue for determination by the Court of Appeal – “Whether the lower court (High Court of Justice, Delta State) was right in affirming the decision of the Chief Magistrate Court dismissing the NO CASE SUBMISSION of the Appellants herein and calling upon them to enter their defence.” A cursory look at issues IV and V formulated for the 2nd Appellant show that they pertain to the question as to whether the learned trial Judge was right in rejecting the submission of NO CASE by the Appellant. This is no doubt in consonance with the sole issue formulated by the Respondent. Except for the plurality in the con of the issue formulated by the Respondent, that issue would appear to me more apt. The issue for determination of this appeal would therefore be “whether the trial High Court was right in affirming on appeal to it the ruling of the Chief Magistrate Court dismissing the NO CASE SUMBISSION of the Appellant and calling upon him to enter his defence.” From this perspective the entire appeal is narrowed down to the alleged demand of N5,000.00 “with threats of any injury or detriment of any kind to the Ovie of Abraka” made against the Appellant.
That charge against the former 2nd Appellant and now sole Appellant reads as follows, “That you Dickson Eyekpegha (M) on the 5th day of August, 1998 at the palace of the Ovie of Abraka in the Abraka Magisterial District demanded and received the sum of N5,000.00 from the Ovie of Abraka with threats that he will be killed if he refused the request that the money was meant for transportation of hired assassin you brought from Lagos and thereby committed an offence punishable under section 406 of the Criminal Code Cap 48 Vol. II Laws of the defunct Bendel State of Nigeria 1976 as applicable to Delta State.”
Was a prima facie case made out against the Appellant to call upon him to defend himself? It has been submitted in the Appellant’s Brief of argument that no prima facie case has been made out against the Appellant to call upon him to defend himself. It was submitted that to constitute an offence in this case, there must be proof of –
(i) Demand of N5000.00 from PW1 (the Ovie of Abraka) by the Appellant.
(ii) The demand must be made under threat.
(iii) The threat offered was such as would have operated on a reasonable man so as to deprive PW1 of his free will.
(iv) That the threat induced PW1 to part with N5000.00.
The following cases were relied upon –
C.O.P. V. EDEDEY (1964) 1 A.N.L.R. 117 at 120-211; C.O.P. V. FELEDAY (1966) 1 NWLR 383 at 386; RUNSAWE V. COP (1968) N.M.L.R. 112 at 115; ADEGBITE V. COP (1965) 1 N.W.L.R. 431 at 436; OMOTOSHO V. C.O.P. (1961) 1 A.N.L.R. Pt IV 693 AT 698-699.
It was contended for the Appellant that these elements must be proved to co exist, and in this case they were not proved. Counsel for the Appellant went on to review the evidence of PW1, PW2, PW3 and PW4 (IPO) at pages 12-15 and urged the court to hold that no demand was made by the Appellant on the Ovie of Abraka and also there was not threat on the Ovie which was sufficient to induce him to part with N500 (sic) (W5000) and urged this court to allow the appeal and discharge the Appellant.
It has been submitted by the Respondent’s counsel that the following ingredients make up the offence –
(a) That the accused person (Appellant) made a demand from the complainant (PW1 the Ovie of Abraka).
(b) With intent to steal
(c) The demand is accompanied by a threat of injury or detriment of any kind.
He referred to the case UTTEH V. THE STATE (1992) 2 NWLR PART223 page 257 at page 274. It was submitted for the Respondent that there is sufficient evidence on record to prove or establish a prima facie case against the Appellant. Reference was made to the evidence of PW1 at pages 16-19 of the records which I shall come to later. It was therefore submitted that from the evidence of PW1, the ingredients of the offence were proved – that there was threat to kill PW1 (the Ovie of Abraka) and there was demand for money; that the Appellant had no intention to refund the money demanded but to deprive PW1 of it. It was further submitted that the threat was calculated to deprive the Ovie of his free and voluntary exercise of mind. The case of COP V. EDEDENY (No 2) (1964) 1 All NLR 117 was relied upon.
What does a submission of no case mean? There is a plethora of cases to the effect that a submission of no case to answer may be properly made and upheld in the following cases –
- When there has been no evidence to prove an essential element in the alleged offence
- When the evidence adduced by the prosecution has been discredited as a result of cross examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it. See the following cases – IBEZIAKO V. COMMISSIONER OF POLICE (1963) 1 All NCR 61; 1963 NNLR 88; AJIDEGBA & ORS V. IGP 3 FSC 5; OKORO V. THE STATE (1988) 5 NWLR PART 94, page 285; ADEYEMI V. THE STATE (1991) 4 LRC 1363; AJIBOYE V. THE STATE (1995) 8 NWLR PART 414, page 408; UBANATU V. COP (2000) FWLR PART 1, page 138.
It is important to state that the elements for disclosing a prima facie case are not the same as the elements for securing a conviction. If the evidence adduced by the prosecution is such that an accused person still has some explanation to do to clear his name even after cross examination of the prosecution’s witnesses the accused must be called upon to defend himself against the charge he is faced with. Such evidence does not necessarily have to be strong enough for the prosecution to secure a conviction. The test as seen it is whether at the end of the prosecution’s case and after the prosecution witnesses have been cross examined by the accused, the accused person is seen to be blame less of the charge that he is confronted with: The entirety of the evidence adduced by the prosecution is not necessary to establish a prima facie case against the accused person sufficient for him to be called upon to defend himself. Thus where a single prosecution witness has adduced damaging evidence against an accused which evidence appears unshaken despite cross examination, a prima facie case would have been made out against the accused for which he must be called upon to defend himself. In the present appeal, it is instructive to examine the evidence of PW1 the Ovie of Abraka which evidence was dealt with at length in the Briefs of argument of the Appellant and Respondent. I will quote copiously from the Appellant’s Brief of argument at pages 12 and 13 “Putting his mouth into my ear, the 3rd accused (now sole Appellant) said, “Ovie I have been hired to kill you. Continuing the 3rd accused said, I am the head of a seven man gang hired to kill the Ovie and create room for the 1st accused person to ascend the throne”
“At this stage we continued to appeal to the 3rd accused (now sole Appellant) not to carry out his threat and eventually he said that he now knows what to do and that he would disfigure himself and appeal to his men who came from Lagos that he was ill and unable to carry out the operation and that if I could give him their transport fare which he will in turn hand over to his men to enable them go back to Lagos and other destinations and that but futher plea, he was to go back to Lagos the following date to collect N1,500,000.00 (One Million, Five Hundred Thousand Naira) promised them for the operation and said that I was a lucky man .
The 3rd accused after our plea was given N5,000.00 by myself, the 3rd accused person informed me that I should give him money to pay the transport fare of hired assassins back to their base.”
The Respondents also referred to the evidence of PW1 (Ovie of Abraka) on page 7 of the Respondent’s Brief of Argument thus, “The 3rd accused introduced himself to me as a graduate of the University of Benin….that he is a hardened man hired to kill. Putting his mouth into my ear the 3rd accused (sole Appellant) said Ovie have been hired to kill you. At this stage I started to plead with the 3rd accused person not to take the laws into his hands “. The 3rd accused informed me that other persons lined up to be eliminated were Chief Ortsedere who was a signatory to the rotation of the Ovieship between Omarivie and Umiaghwa sections of Abraka ” At this stage we continued to appeal to the 3rd accused not to carry out his threat and eventually he said that he knows what to do and that he would disfigure himself and appeal to his men who came from Lagos that he was ill and unable to carry out the operation and that if I could give him their transport fare which he will in turn hand over to his men to enable them go back to Lagos and other destination, the 3rd accused after our pleas was given N5,000 by myself” The evidence of PW1, H.R.H. Luke Erede Ejohwomu Adakaji the Oview of Abraka is contained as from page 4 of the Record of proceedings. Even more important than the evidence adduced by a prosecution witness is the question whether such evidence has been discredited or punctured by cross examination. Going through the Appellant’s Brief of argument, this point does not appear to have been addressed. The paramount question is was the evidence of PW1 Ovie of Abraka copiously highlighted here discredited during cross examination.? The records show otherwise. The evidence of PW1 under cross examination is that the Appellant threatened to kill him and demanded some money from him. The evidence appears not to have been discredited. Even the evidence of PW2 which was highlighted on page 14 of the Appellant’s Brief of argument and which ran thus, “At this point the 3rd accused (who is now the appellant) went closer to the Ovie and whispered something into his ears which was not to my knowledge or hearing and after this action he told the Ovie that he was not going to assassinate them again but that if the Ovie can give some amount (sic) money to transport his members back to Lagos” which tallies with PW1’s evidence that the Appellant demanded for some money from him was not contradicted during cross examination. The evidence given by both witnesses is indicative of the fact the PW1’s parting with the sum of N5,000.00 to the Appellant could not have been voluntary. It was not a gift properly so called and there could not have been the intention of the Appellant to return the money back to PW1. The ability of the defence to discredit the prosecution’s evidence during cross examination is a very important criterion that a court takes into consideration in deciding whether a submission of no case should succeed or not. Prosecution’s evidence has not been shaken and remains unassailable.
Most certainly prima facie case has been made out by the prosecution against the Appellant and calling upon the Appellant to defend himself and remitting this case back to the trial Chief Magistrate for continuation of hearing and determination is hereby affirmed.
Other Citations: (2007)LCN/2560(CA)
