Sunny Tongo & Anor V. Commissioner of Police (1999)
LawGlobal-Hub Lead Judgment Report
AKAAHS, J.C.A.
The appellants were arraigned before the Senior Magistrate’s Court Benin City presided over by a Senior Magistrate Grade I in a one count charge No. MB/710c/92 for the following offence namely:-
“That you Sonny Tongo (m) Helen Tongo (f) on or about the 16th day of February, 1991 at Plot 88, 2nd Garrick Avenue, off Siluko Road Benin City in Benin Magisterial District, wilfully and unlawfully damaged block wall fence valued N2,000.00 property of Madam Ehisiemwen Odiase (f) and thereby committed an offence punishable under Section 451 of the Criminal Code Cap. 48 Vol. 2 Laws of Bendel State of Nigeria, 1976”
The complainant and three other witnesses testified and were cross-examined.
At the close of the Prosecution’s case, Learned Counsel for the accused made a no case submission which was overruled on 22/9/92 and the case was adjourned to 22/10/92 for defence. The accused/appellants appealed against the ruling to the High Court which dismissed the appeal on 26/9/95. Dissatisfied with the judgment of the High Court, the appellants further appealed to this court. The 1st appellant’s Notice contained six grounds of appeal which was annexed to his application for leave to appeal dated 9/10/95. The 2nd appellant also appealed on four grounds and leave to appeal was granted on 14/11/95 to the two appellants. It appears the 1st appellant’s Notice of Appeal was struck out on 10th May, 1999 and so an application was brought on 14/5/99 praying the court to set aside the order and to relist the appeal for determination on the merits. The application was moved and granted on 7/7/99. Earlier on 16/5/96 the respondent had filed an application praying this court to dismiss the appeal for want of prosecution alleging that the time limit for filing the appellant’s brief as required by Order 6 Rule 2 Court of Appeal Rules, had lapsed. On 23/6/97 the appellants brought an application for an order extending time within which they could file a Joint Appellants’ brief’. On 25/6/97 the motion to dismiss the appeal was struck out while time was extended for the appellants to file their briefs. The said briefs were deemed filed on 10/5/99. On 27/3/98 the respondent brought an application which was granted on 30/3/98 extending the time within which to file the respondent’s brief. Another motion for extension of time to file the respondent’s brief of argument and to deem same as duly filed and served was filed on 25/5/98 and it was moved and granted on 19/10/98. The briefs filed by the respondent dealt with the issues raised in the appellants’ briefs.
While in the 1st appellant’s brief, four issues were raised for determination, the 2nd appellant’s brief contained two issues and the respondent also had two issues for determination. The issues for determination in the brief filed by the 1st appellant are:-
(1) Whether the appellant abandoned the only ground of appeal he filed.
(2) Whether there is a difference between the parameters for determining a prima facie case at the consent level in preferring an information pursuant to Section 340(2)(b) Criminal Procedure Cap. 49 BSLN 1976 applicable in Edo State and prima facie case at the close of the prosecution’s case.
(3) Whether there is evidence of an extra 10′ which the appellant did not sell to the P.W.1’s daughter Betty Odiase, making her land from where the wall fence was sited to be 60′ in width instead of 50′ in width at the prosecution’s case GROUND 2.
(4) Whether the prosecution made out a prima facie case against the appellant GROUNDS 3, 5 and 6.
The 2nd appellants’ two issues for determination are:-
(1) Whether the appellant abandoned any of the grounds of her appeal GROUNDS 1 and 2.
(2) Whether the prosecution established a prima facie case against the appellant GROUNDS 3 and 4.
The respondent’s brief dealt with two issues for determination namely:-
(1) Whether the prosecution had established a prima facie case against the accused/appellants.
(2) Whether the defence of bonafide claim of right under section 23 of the Criminal Code avail the accused/appellants at the no case submission stage of the proceedings.
The respondent has framed better issues and their resolution will determine this appeal and I hereby adopt them as the main issues in the appeal.
Issue No.1 (same as issue Nos. 4 and 2 in 1st and 2nd appellants’ briefs respectively). Learned counsel for the appellants referred to the charge and said that what is wilfully and unlawfully alleged to be damaged is the block wall-fence valued N2,000.00 of the P.W.1. He also referred to Exhibit “D” the sale agreement which described the 1st appellant as the vendor and one Betty Odiase as the purchaser and the dimension of the plot as 100′ x 50′. He contended that an essential element in the particulars of the charge, namely that the P.W.1 owned a bloc (sic block) wall fence was/is not proved at the end of the prosecution’s ease. He therefore submitted that the P.W.1 having admitted that she had no power of attorney to enter the land and “erect a wall fence, she was ab initio a trespasser; moreso since the 1st appellant is saying that P.W.1 took 10′ from his land. He therefore submitted that the 1st appellant cannot be legally liable for abetting a nuisance on his property and that he rightly removed the wall fence. It was further submitted on his behalf that he cannot be queried for destroying the wall fence which is his property following the maxim quid quid plantatur solo solo cedit a number of cases to buttress the argument. Learned counsel pointed to the discrepancy between the amount contained in the charge and the evidence of P.W.1 and P.W.3 which put the value at N3,500. He also referred to the evidence of the P.W.2 in chief that himself (P.W.2) and the P.W.1 met the 1st appellant and his wife (2nd appellant) destroying the wall fence but in the same evidence he (P.W.2) stated that-
“before we got there they had destroyed the whole blocks and left the broken one.”
He then referred to the evidence of P.W.4 (IPO) who said that he did not know the P.W.2 and argued that these are not mere discrepancies. He therefore submitted that the appellate High Court erred in law in upholding the decision of the trial Senior Magistrate Court that prima facie, the appellants had a case to answer.
In respect of the 2nd appellant, learned counsel said she raised a defence of alibi in her statement which was admitted in evidence as Exhibit “B” and that alibi was not investigated and since it inured to her benefit it was complete answer to the charge. The admission by the 1st appellant that it was he (1st appellant) who removed the fence is also a complete answer to the charge against the 2nd appellant, learned counsel further submitted. Continuing his submission, learned counsel for the 2nd appellant referred to Section 286 of the Criminal Procedure Law, Cap 49 BSLN 1976, applicable to Edo State and argued that what that section requires is “sufficiently” and that in determining whether a case is made out or not at the close of the prosecution’s case is that it must appear to a court that there is sufficient evidence led and not just any narrative masquerading as evidence before it can call on the defendant to make his defence – Section 287(1) CPL.
The reply of the respondent to the submissions on behalf of the 1st appellant is that the prosecution had established a prima facie case of malicious damage contrary to section 451 of the Criminal Code against the accused/appellants. He referred to the evidence of P.W.1 and P.W.2 and submitted that from the totality of the evidence of the prosecution the essential ingredients of the offence have been established. He further argued that a prima facie case is made out when there is something linking the accused/appellants to the offence and cited Ikomi v. The State (1986) 3 NWLR (Pt. 28) 340.
Section 287(1) of the Criminal Procedure Code Cap. 49 Laws of the Bendel State of Nigeria Vol. II 1976 applicable to Edo State under which the trial Senior Magistrate Court called upon the accused/appellants to make their defence provides as follows:-
“287(1) At the close of the evidence in support of the charge if it appears to the court that a prima facie case is made out against the defendant sufficiently to require him to make a defence the court shall call upon him for his defence and –
(a)…
(i) …
(ii) …
(iii) …
(b) if the defendant is represented by a legal practitioner, the court shall call upon the legal practitioner to proceed with the defence.”
In Njoku v. Commissioner of Police (1999) 10 NWLR (Pt. 622) 192 this court observed that –
….. on a submission of no case to answer the court is only called upon to consider whether an element of the offence has not been proved or the prosecution’s evidence has been so discredited under cross-examination or so manifestly unreliable that no reasonable Tribunal can safely convict on the evidence so adduced: See: Commissioner of Police v. Ibikake (1966) NNLR 132; Commissioner of Police v. Iweanya (1966) NNLR 7.”
Njoku v. Commissioner of Police supra at page 200.
An appellate court can, after scrutinizing the charge and the evidence led, decide whether an element of the offence has not been proved but it will not be in a position to say anything about the credibility of the evidence given by a witness unless the trial court has given probative value to such evidence. In other words the appraisal of oral evidence and the ascriptions of probative values to such evidence is the primary duty of a trial court and a court of appeal will only interfere with the performance of that exercise if the trial court had made imperfect and improper use of the opportunities of hearing and seeing the witnesses or has drawn wrong conclusions from accepted or proved facts which those facts do not support. However, if the trial Judge draws mistaken conclusions from indisputable facts or wrongly arranges or presents the facts on which the foundation of the case rests, the appeal court should not abdicate its own responsibility and rubber-stamp the error, but should intervene and do what justice requires – See: Ahmed v. State (1999) 7 NWLR (Pt.612) 641; Umar v. Ahungwa (1997) 1 NWLR (Pt. 483) 601; Nkada v. Obiano (1997) 5 NWLR (Pt. 503) 31.
In the instant appeal, the learned counsel for the appellants has pointed to certain discrepancies in the evidence led by the prosecution witnesses. The said discrepancies, even if they exist, are not sufficient or grave enough to warrant a finding that the prosecution’s evidence was manifestly unreliable in order to sustain a no case submission.
The learned High Court Judge sitting on appeal was therefore right when he adopted at page 45 of the records the definition by Aniagolu J.S.C. in Ikomi v. State (1986) 3 NWLR (Pt. 28) 340 at 372 of the phrase “prima facie” to mean “on the face of it” and to conclude that something has been produced to make it worthwhile to continue with the proceedings. In the leading judgment delivered by Nnamani J.S.C. (of blessed memory) when considering the issue as to what proofs of evidence a Chief Judge should have before granting consent to prosecute the accused said at page 366:-
“The question is, in all these circumstances, can it be justly said that there is nothing linking the appellants with the offence?”
And he answered the question in the affirmative and went further to hold thus;
“I hold that there was a prima facie case on the face to those proofs of evidence … Such evidence, in my view is disclosed on the face of the depositions.”
In his concurring judgment Aniagolu J.S.C adopted the meaning of a prima facie case as explained by Hubbard J, in his judgment in Regina v. Coker and others (1952) 20 NLR 62 where he held that a submission that there is no case to answer meant that there was no evidence on which the court could convict “even if the court believed the evidence given.”
The primary concern of a trial court as well as the appellate court when a submission of no case is made is to advert its mind to Section 286 of the Criminal Procedure Code which states:-
“If at the close of the evidence in support of the charge it appears to the court that a case is not made out against the defendant sufficiently to require him to make a defence the court shall, as to that particular charge, discharge him”.
The learned Senior Magistrate overruled the no case submission and called on learned counsel for the appellants to present their defence. The learned High Court Judge sitting on appeal has upheld the order made by the Senior Magistrate. I do not see any thing wrong in the decision reached by the learned High Court Judge on appeal. There is no merit in Issue No.1.
Issue No.2.
Learned Counsel submitted on behalf of the 1st appellant that Section 23 of the Criminal Code Law Cap 48 BSLN (1976) applicable in Edo State is a complete answer to a charge under section 451 Criminal Code and cited Stephen Nwakire v. Commissioner of Police (1992) 5 NWLR (Pt.241) 289 in support. The submission made on behalf of the 2nd appellant is that in her extrajudicial statement she raised the defence of alibi which the prosecution did not investigate and the admission made by the 1st appellant, Exhibit “A” that he removed the wall fence is a complete answer to the charge against her.
Learned counsel for the respondent in his reply submitted that the defence of bona fide claim of right under section 23 of the Criminal Code whatever its worth cannot avail the accused/appellants at the stage of no case submission. He contended that a bona fide claim of right of the accused/appellants must be put in evidence to enable the court determine the merit of the case. I agree with the stand by learned counsel for the respondent that the claim of right under section 23 of the Criminal Code can be considered only when the trial court is considering the probative value to ascribe to the evidence of the witnesses. The issue of the alibi put forward by the 2nd appellant in Exhibit “B” would have been relevant if P.W.4 who recorded Exhibit “B” was cross-examined and he replied that he did not investigate the alibi. The cross-examination of P.W.4 was limited to exhibit “D” (see page 15 lines 23-27). I will therefore resolve issue No. 2 against the appellants.
In conclusion, all the issues raised in this appeal are resolved against the appellants. The appeal is accordingly dismissed.
This appeal was deemed as having been argued on the briefs filed because the learned State Counsel who was absent wrote to say he was engaged in a Commission of Enquiry.
Other Citations: (1999)LCN/0529(CA)
