Augustine Onyekachukwu V. The State (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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’t 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:-

a. 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.

b. 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.

c. 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.