3PLR – AUGUSTINE ONYEKACHUKWU V. THE STATE

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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AUGUSTINE ONYEKACHUKWU

V.

THE STATE

IN THE COURT OF APPEAL, (BENIN JUDICIAL DIVISION)

ON TUESDAY, THE 25TH DAY OF JUNE, 2013

SUIT NO: CA/B/371CA/2009

LN-e-LR/2013/20

 

OTHER CITATIONS

(2013) LPELR-20880(CA)

BEFORE THEIR LORDSHIPS 

HELEN MORONKEJI OGUNWUMIJU

AYOBODE OLUJIMI LOKULO-SODIPE

TOM SHAIBU YAKUBU

 

BETWEEN  

AUGUSTINE ONYEKACHUKWU – Appellants

AND

THE STATE –          Respondents

 

REPRESENTATION

1. O. Ewere – For the Appelants
2. I. Adigwe Director Attorney-General & PT, Delta State with him E. U. Ogbolu SSC – For the Respondents

 

ORIGINATING STATE

Delta State: High Court of Justice-(P. M. OKOH J. Presiding)

 

MAIN ISSUES

CRIMINAL LAW:– Conspiracy to commit armed robbery – When miscarriage of justice is deemed to have been occasioned – Trial in chambers – Consolidation of two separate informations contrary to the provisions of Section 162, 163 and 164 of the Criminal Procedure Laws of Bendel State 1976 applicable to Delta State  – Conviction not backed up adduced facts – Duty of appellate court thereto

CONSTITUTIONAL LAW:- Section 36 (3) and (a) of the 1999 Constitution – Conducting a criminal proceeding in Chambers

ETHICS – JUDGE:- Miscarriage of justice – Conduct of criminal proceedings in Judge’s chamber –  Consolidation of two separate informations contrary to the provisions of Section 162, 163 and 164 of the Criminal Procedure Laws of Bendel State 1976 applicable to Delta State – Adoption of a procedure unknown to Law – Failure to cause fresh charge to be read over to accused person – Long drawn judgment spanning almost a decade – Attitude of appellate court thereto

CHILDREN AND WOMEN LAW:- Women and Crime – Armed robbery victim – Women and Justice Administration – Poor prosecution and gross miscarriage of justice by trial court – Effect on criminal prosecution on a suspect accused of robbing a woman

PRACTICE AND PROCEDURE – COURT:- Effect of proceeding conducted in Chambers – Duty of a judge to be just and fair by considering all the evidence adduced before him before arriving at any conclusion

PRACTICE AND PROCEDURE – JUDGMENT:- Qualities of a good judgment

PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – JUDGMENT:- Need for judgment to reflect the fact that the court or judge appreciated the basis upon which the parties contested or prosecuted their cases

 

 

 

MAIN JUDGMENT

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment):

This is an appeal against the decision of Hon. Justice P. M. OKOH delivered on 13th March, 2009 wherein the appellant being charged with conspiracy to commit armed robbery and armed robbery was convicted of said offences and sentenced to death. The facts that led to this appeal are as follows:-

Sometime on 23rd January, 2003 the police arrested appellant over alleged robbery incident that took place on 4th day of November 2000, at Umunede in Ika North/East Local Government Area of Delta State. Sometime in the year 2005, appellant was arraigned before Honourable Justice P. M. Okoh of High Court of Justice, Agbor Judicial Division on three counts information of conspiracy and armed robbery vide charge No. AG/5C/2005. Umunede the scene of the alleged armed robbery is a community within Owa-Oyibu Judicial Division with the administrative headquarters at Owa-Oyibu in Ika North/East Local Government Area of Delta State. On 19th ay of May 2005, His lordship, Honourable Justice P. M. Okoh suo muto consolidated the two informations namely; Charge No. HCY/5C/2002 and Charge No. AG/5C/2005. As the matter was proceeding, the 1st accused person in Charge No.HCY/5C/2002 Cletus Utomi died leaving appellant and Augustine Onwubuya now 1^st appellant as the only accused person in the matter. On 13th March 2009 the trial Judge convicted and sentenced the appellant to death in his Chambers.

 

The Appellant appealed against the conviction and sentence for the offence of conspiracy and armed robbery. The Amended Appellant’s Brief was filed on 24th May, 2013 therein the Appellant counsel identified three issues for determination also adopted by the Respondent’s counsel in the brief filed on 6th June, 2013. The issues are set out below:-

1. Whether the trial Judge was right to have conducted the proceedings of 13th March, 2009 in his Chambers wherein he convicted and sentenced appellant to death.
2. Whether the consolidation of the two separate informations namely; Charge No. HCY/5C/2002 and Charge No.AG/5C/2005 involving 1st and 2nd appellants and failure of the trial Judge to properly take plea of the appellant after the purported consolidation as required by the mandatory statutory provisions of Section 215 of Criminal Procedure Law Cap.Vol.11 Laws of defunct Bendel State of Nigeria 1975 applicable in Delta State has not rendered the entire proceedings a nullity.
3. Whether prosecution proved the guilt of the appellant as contained in the Charge against him beyond reasonable doubt as required by law.

 

The learned Respondent’s counsel conceded in the said brief filed on 6th June, 2013 that the State could not support the conviction of the appellant and urged this Court to allow the appeal.

 

To make this case remarkable, I need to bring the attention of my brothers to the fact that the learned trial Judge contrary to the Provisions of Section 36 (3) and (a) of the 1999 constitution conducted a criminal proceeding in Chambers on 13th March 2009 and convicted the appellant and sentenced him to death. This fact came from paragraphs 5 – 8 of the Appellant’s Motion dated 22nd January 2010 filed on 25th January 2010. These facts were not rebutted by the State.

 

I have no hesitation in arriving at the conclusion and agreeing with the appellant’s counsel and the State that a proceeding conducted in Chambers is a nullity. A Judge’s Chamber is not within the contemplation of Section 36 (3) of the 1999 Constitution See Simon Edibo v. the State (2007) 5 SCNJ 325.

 

I looked at the record and observed that at the trial court the case was listed as HCY/5C/2002 until 26th May, 2008 when it was joined to Suit No.AG/5C/2005. I have looked strenuously through the record and find no formal order of consolidation made by the judge.

 

Not only that, the trial judge (I cannot bring myself to add the word learned before his Lordship’s name) consolidated two separate informations contrary to the provisions of Section 162, 163 and 164 of the Criminal Procedure Laws of Bendel State 1976 applicable to Delta State. His Lordship consolidated Charge No.HCY/5C/2002 and Charge No.AG/5C/2005. There is no doubt that the procedure adopted by the learned trial judge is unknown to Law. The trial judge did not cause the fresh charge to be read over to the appellant and a fresh plea was not taken.

 

Appellant was charged on three counts information of conspiracy and armed robbery in respect of Charge No.AG/5C/2005. At page 43 lines 20- 24 of the record of appeal, the trial judge convicted appellant and sentenced him to death. In his judgment contained at page 41-43 particularly at page 43 lines 7-22 the trial judge believed the prosecution’s case while he held that PW5 is the star witness. The evidence of PW5 is contained at page 30 lines 10-24 of the record of appeal. PW5 did not give any evidence wherein the appellant was mentioned. Under cross-examination at page 30 lines 24, PW5 stated that she did not see the robbers. In his judgment, it is not clear what count(s) the appellant was convicted of. His Lordship did not give any appraisal of the evidence led in the matter.

 

I have looked at the terse notes of the proceedings kept by the trial judge. There is nothing in the evidence of the prosecution witness as recorded by the trial judge to suggest any involvement by the appellant in the crimes for which he was convicted. The trial judge found that the evidence of PW5 was clear intact and uncontroverted. That is true only to the extent that she was robbed but not towards evidence that she identified the appellant as one of those who robbed her. The conclusion of the learned trial judge had no basis in fact or law.

 

It is not a surprise that the State could not support the judgment of the trial court. I must say that l am completely aghast and rendered speechless by the facts of this case. In my experience, I have not come across such a gross miscarriage of justice from the bench. The offence was purportedly committed on 4th November 2000. The appellant was arrested in 2005, and charged to court. He was convicted in 2009. The whole conduct of the trial by Justice P. M. Okoh leaves a bad taste in the mouth. It is not in my character to criticize or castigate my brothers at the trial Court because of a difference in legal opinion. However in this case, I must speak out. The trial judge’s record of the evidence was not only extremely brief and scanty, the record kept was too terse given the seriousness of the charged laid against the appellant. The judgment encompassed only three (3) pages from 41 – 43 in which the review of evidence was done only on pg 43. The review of the evidence of the five prosecution witnesses and the finding of armed robbery, conviction and sentence to death was done on Pg.43 with 18 lines. Even on the merits, there is absolutely nothing connecting the appellant who was arrested in 2005 with an offence committed in 2000 when the star stated categorically that she could not identify the people who robbed her. It is the duty of a judge to be just and fair. In his adjudication, he has the duty to consider all the evidence adduced before him before arriving at any conclusion. See Oba Mafimisebi & Anor v. Prince Macaulay Ehuwa (2007) 1 SCNJ 258.

 

There is no doubt that the qualities of a good judgment is that it must reflect the fact that the court or judge appreciated the basis upon which the parties contested or prosecuted their cases. A proper appreciation of the issues must be shown and there must be a full consideration of the issues raised by the parties. See Eng. Goodnews Agbi & Anor. V. Chief Audu Ogbe & Ors. (2004) 2 SCNJ 1; Alhaji Buba Usman v. Mohammed Taminu Clarke (2003) 7 SCNJ 38.There is no doubt that the trial judge cannot be described as learned even if he is honourable. I am dismayed that I have to say that this is a classic example of the Latin maxim coined by Justinian that the ignorant judge is the calamity of the innocent.

 

The conviction and sentence of the appellant in Charges HCY/5C/2002 and AG/5C/2005 is set aside and quashed. I enter a verdict of acquittal and discharge of the appellant. Appeal Allowed.

 

 

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.:

I have had the privilege of reading in draft the lead Judgment prepared by my learned brother, HELEN MORONKEJI OGUNWUMIJU, JCA. His lordship has dealt with all that requires the attention of this Court as an appellate court in the lead Judgment and I am in complete agreement with all that has been said therein.

 

Accordingly, I too, quash the conviction and sentence of the Appellant in Charges HYC/5C/2002 and AG/5C/2005 and allow the appeal.

 

 

TOM SHAIBU YAKUBU, J.C.A.:

I had the privilege of to have read before now, the judgment just delivered by my Lord, HELEN M. OGUNWUMIJU, JCA.

I am in total agreement with the reasoning contained therein, and the conclusion that this appeal has merits and must be allowed. I should add a few words of my own in support of my Lord.

 

The conduct of the proceedings by the trial Judge – P. M. Okoh, J., in his chambers wherein he convicted and sentenced the appellant to death for the offence of armed robbery, is no doubt a travesty of justice and a tragedy of errors, not a comedy of errors. I only need to reiterate what this court said in Nwosu V. The State (1986) 4 NWLR (pt.35) 348, Agbanyi V. The State (1995) 1 NWLR (pt.369) and Abdullahi V. The State (2005) All FWLR (pt.263) 698 at 718, that

“A judgment convicting a man of the offence he is charged with, must be seen as a product of prudent and logical thinking, based upon admissible evidence, in which the facts leading to his conviction are clearly found and the legal deduction therefrom carefully and rightly made. It cannot be allowed to stand if founded upon a misapprehension, misdirection and/or  error in law…”

 

To my mind, the conduct of the trial, conviction and sentence of the appellant, was not only perfunctorily, but lackadaisical.

 

It is for these few words and the fuller reasons contained in the lead judgment, that I, too allow this appeal and set aside the conviction and sentence of death hanging on the appellant. He is discharged and acquitted, accordingly.