Cyriacus Ogidi & Ors V. The State (2005)

LAWGLOBAL HUB Lead Judgment Report

G.A.OGUNTADE, J.S.C. 

The four appellants were arraigned before the Owerri High Court of Imo State on an information for the offence of armed robbery contrary to section 1(2)(a) of the Robbery and Firearms (Special Provisions) offence as set out on the information stated that the appellants on 1st June, 1997 at Amazu Uno Arondizuogu in the Orlu Judicial Division while armed with offensive weapons to wit: locally made pistol and matchets, robbed Mrs. Ndidi Nnakaihe and Innocent Nnakaihe of some properties.

The appellants were tried by Ohakwe, J. after each of the appellants had on 16/08/99 pleaded not guilty to the charge. The prosecution called four witnesses. Each of the appellants testified in his own defence. The 1st appellant alone called a witness who testified as DW5. The trial Judge on 17/12/99 delivered judgment in the case. Each of the appellants was found guilty of the offence and sentenced to death.

Dissatisfied, the appellants brought an appeal against the judgment. The appeal came before the Court of Appeal, Port Harcourt Division (hereinafter called the court below). The court below on 3/2/2003 delivered its judgment. The court by a majority dismissed the appeal. Nsofor and Adeniji, JJCA were for a dismissal of the appeal by the four appellants. Ikongbeh, JCA in his minority judgment dismissed the appeal of the 1st appellant and allowed the appeal of the 2nd to fourth appellants.

The appellants have brought a further appeal before this court. In the 1st appellant’s brief, the issues for determination in the appeal were identified as the following:

“1. Whether the 1st appellant’s fundamental right under section 36(7) of the Constitution of the Federal Republic of Nigeria, 1999 was violated in this case and if so, did such violation not render the entire trial and conviction of the 1st appellant unconstitutional, null and void

2. Whether there was cogent, convincing and satisfactory evidence of proper identification of the 1st appellant as one of the armed robbers that committed the offence of armed robbery in the dwelling house of Innocent Nnakaihe as stated in the information.
3. Whether the particulars of the offence stated in the charge and the essential ingredients of the offence of armed robbery were proved beyond reasonable doubt to justify the conviction of the 1st appellant for armed robbery
4. Whether the conviction of the 1st appellant relying on the provisions of section 149(a) of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria was right”

The issues for determination as formulated by the 2nd, 3rd and 4th appellants converge at a point which is as to whether or not the court below was right in its view that the trial court was right to say that the prosecution established the guilt of the appellants beyond reasonable doubt. The 4th appellant raised an additional issue wherein he queried whether the majority judgment of the court below was right in its conclusion that the circumstantial evidence available against him led irresistibly to his guilt. The respondent formulated two issues for determination but the two issues are well accommodated under the issues formulated by the four appellants.

The first issue raised by the 1st appellant is on sections 6(3),5(e)and 36(7) of the 1999 Constitution of the Federal Republic of Nigeria. I do not intend to set out here sections 6(3),5(e)of the 1999 Constitution. It suffices to say that the provision says no more than that a State High Court is bound to exercise the powers conferred under section 6 of the 1999 Constitution. Section 36(7) however provides:

“7. When any person is tried for any criminal offence, the court or tribunal shall keep a record of the proceedings and the accused person or any person authorised by him in that behalf shall be entitled to obtain copies of the judgment in the case within seven days of the conclusion of the case.”

Before I enter into a discussion of the arguments raised on the issue under consideration, it is important that I expose briefly the alleged omission on the record of proceedings of the trial court, which is the matter that has led to the issue under consideration. When on 16/08/99, the appellants were first arraigned, the record of proceedings at page 45 reads in part thus:

“Accused persons present in court L. C. Azuama (Principal Legal Officer with Mrs. M. C. Enwerem (Senior Legal Officer) appear for the Attorney-General. Amaedu Nwaiwu, Esq. with B. N. Mbala, Esq. appear for all the accused persons.

Plea: The charge is read to the accused persons in Igbo language, which the accused persons understand and they plead as follows:

1st accused, Cyriacus Ogidi not guilty to the charge

2nd accused, Augustine Awuzie not guilty to the charge