Napoleon Osayande & Anor V. The State (1985)

LawGlobal-Hub Lead Judgment Report

O. OBASEKI, J.S.C.

On the 17th day of January, 1985 after hearing arguments of counsel, I dismissed the appeal and reserved my reasons till today. I now proceed to give them. The proceedings in this matter originated in the Chief Magistrate’s Court, Benin City. There, the two appellants were charged with the offences of

(1) wilful and unlawful damage contrary to section 451 of the Criminal Code Cap 48 Vol. 2 Laws of Bendel State of Nigeria.

(2) Stealing contrary to section 390 of the Criminal Code Cap 48 Vol. H 2 Laws of Bendel State of Nigeria 1976.

One Edomwonyi Eguakun was charged and tried along with them. He was discharged and acquitted on both counts but the two appellants were convicted on count 1 the count charging wilful and unlawful damage and each was sentenced to 1 year imprisonment with hard labour and acquitted and discharged on count 2.

The appellants were dissatisfied and appealed to the High Court. Indeed, oral notice of appeal was given on the 5th March, 1979 immediately the convictions and sentences were pronounced. It was recorded immediately by the learned trial Chief Magistrate who then proceeded without delay to make the order specifying the conditions of appeal. On the same day, the memorandum of the grounds of appeal was filed. Only one ground was stated. It is the omnibus ground and reads

“that the decision of the learned trial Magistrate is wrong, unreasonable and cannot be supported having regard to the evidence.” Before the hearing of the appeal, the 1st appellant sought in the High Court and obtained leave to file and argue additional grounds of appeal. Seven additional grounds of appeal were filed. Of the seven additional grounds of appeal filed, only ground 4 which reads that:

“the learned Chief Magistrate erred in law in delivering a written judgment not signed and dated at the time of pronouncing it contrary to section 245 of the Criminal procedure Law.”

was argued by the 1st appellant’s counsel in the High Court. The 2nd appellant also sought and obtained leave to argue 7 additional grounds of appeal. Thereafter, he sought and obtained leave to file and argue a further ground of appeal.

Of all the grounds and additional grounds of appeal filed by the 2nd appellant, only the further ground of appeal which reads:

“that the learned trial Chief Magistrate erred in law when he failed to sign the judgment delivered on the 5th March, 1979.”

was also argued before the High Court by the 2nd appellant’s counsel.

The appeal was argued before Moje Bare, J. who ordered the criminal records book of the Chief Magistrate to be produced before him for inspection. This was done before he heard arguments from counsel on the 18th day of February, 1982. The learned judge then minuted in his Record Rook a, follows:

“Court: The Record Book was produced and inspected by me and found to have been signed by the trial Magistrate at the end of the court proceedings of the day after granting conditions of “appeal vide Fols. 169 and Fols. 213-218 Vol. 632 thereof.”