John Egbedi & Anor V. The State (1981) LLJR-SC

John Egbedi & Anor V. The State (1981)

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U. UDOMA, JSC

The point that the preliminary procedure before trial laid down by Section 6 of the Robbery and Firearms (Special Provisions) Act No. 47 of 1970 was not followed at the trial of the appellants raised by Mr. Shola Rhodes, learned counsel for the appellants, appears to me rather academic at this stage of these proceedings as, in my view, it does not affect the merit of the case against the appellants as established by the prosecution.

The preliminary procedure has in any event been abolished, as Section 6 of the Act has been repealed since 1979.   The appellants were duly brought before the Tribunal presided over by a Judge to face their trial. They pleaded to the charge laid against them. Both appellants were represented by counsel at the trial, who did not raise any objection to the plea being taken and recorded. The point of irregularity was never at any time raised throughout the trial. On a reserve judgment, the Tribunal found the appellants guilty and convicted them accordingly.

Furthermore, the procedural point of irregularity was not even raised before the Federal Court of Appeal which heard and dismissed the appeal of both the appellants.   PAGE| 2   It must therefore be presumed that the proper procedure had been followed ab initio before the actual trial was embarked upon. It is nowhere provided in the law that the preliminary commencing proceedings before trial should always form part of the record of appeal in the event of a conviction or acquittal, as the case may be, just as in the case of preliminary investigation before trial, the notes made by a Magistrate are never expected to form part of the trial proceedings in the event of an appeal.  

Mr. Rhodes, learned counsel for the appellants, has indicated that on the merits, he has nothing to urge in favour of the appellants. He has also conceded that the non-inclusion of the preliminary proceedings in the record of appeal does not affect the justice of the case against the appellants. In the circumstances, this appeal stands dismissed as no injustice has been occasioned by the omission to include in the record of appeal the preliminary proceedings before the trial actually commenced. Appeal dismissed.

A.G. IRIKEFE, JSC.: I agree with learned counsel for the appellants that, on the merit of the case, there is nothing useful that can be urged in favour of the two appellants. The record shows clearly that the appellants were convicted on over-whelming evidence of their participation in the offence with which they were charged. They were identified by their victims and their defence left the tribunal in no doubt that they, and none other, broke into the home of the said victims. There is clearly no merit in the procedural point taken by counsel on behalf of the appellants. In my view, the objection taken is such as should have been taken before arraignment. The record does not show that this had been done. Similarly, there was no mention of this point before the Court of Appeal. I think that, for whatever it may be worth, it is too late in the day to take the point here. The onus is clearly on the appellants to show in what manner, the non-compliance complained of has occasioned a miscarriage of justice. Accordingly, I would dismiss the appeal of each appellant. Appeals dismissed.

K. ESO, JSC.: The point which has been raised in this appeal is a point of procedure and it is being raised for the first time. Firstly, there is no evidence that the proper procedure as laid down by Section 6 of the Robbery and Fire Arms Decree 1970 was not followed in charging the appellants to court. Learned counsel has only relied on the record without bringing evidence that the procedure complained of was not in fact followed. Secondly, and more importantly, is the fact that there is no miscarriage of justice. The appellants had a proper trial and were convicted on the merits. The appeal is dismissed.   PAGE| 3

A.N. ANIAGOLU, JSC.: There is no merit whatever in this appeal. The issue of the non-compliance with Section 6 of the Robbery and Firearms (Special Provisions) Act of 1970, dealing with the way to bring an accused person before Robbery Tribunal, in no way affects the substance of the trial which appellants’ counsel agrees is otherwise faultless. A distinction must be drawn between a matter of procedure that affects substantial justice in the trial of a case, such as a failure to draw an accused’s attention to his legal right of calling witnesses – which failure has resulted, in his not calling his witnesses whose evidence might tilt the scale of justice in his favour – and a matter of procedure which in no way affects the justice of the trial of the case.   In the instant case, it has not been shown affirmatively that the procedure for bringing the appellants to trial was not followed, and even if it was shown, it in no way derogated from the just trial of the case. Any objection on that score should have been raised in limine, before the plea was taken in the High Court, and the issue thrashed out. That was not done, nor was the issue raised before the Court of Appeal. Had the matter been raised before the High Court the highest that could possibly have been achieved would have been a discharge, not on the merits, of the appellants; their re-arrest by the police, and a new application for their trial – an exercise which could only postpone the evil day for the appellants.   Counsel for the appellants, Mr. Shola Rhodes, has properly taken up his legal point as he is entitled to take, but I do not think it has any substance. He has conceded that barring this legal point, the appeal has otherwise no merit whatever. I am of the view that the appellants were rightly convicted. Their appeals are, therefore, hereby dismissed.

M. L. UWAIS, JSC.: Although the record of proceedings does not show that an application was made by the prosecution under Section 6(1) of the Robbery and Firearms Act, 1970 before the commencement of the trial, I am satisfied that the non-compliance, if any, did not occasion miscarriage of justice. Both appellants were represented by counsel throughout the trial. I therefore agree that the appeal has no merit and I will dismiss it. The decision of the Federal Court of Appeal is confirmed.

Other Citation: (1981) LCN/1825(SC)