Patrick Akwa & Ors V. Commissioner of Police (2002)

LawGlobal-Hub Lead Judgment Report

EDOZIE, J.C.A. 

The six appellants as accused persons were on 14/11/95 in charge No. MAK219C/95 at the Chief Magistrate’s Court, Akamkpa, Cross-River State Coram His Worship M. O. Eneji (as he then was) arraigned on a four count charge of conspiracy, house breaking, stealing and assault contrary to sections 518(6), 411 (1),390(9) and 351 of the Criminal Code, Cap. 31, Vol. 2, Laws of Cross-River State, 1983, respectively. The charge reads as follows:

“Court I

That you Patrick Akwa, Chief Clement Agbor, Chief Edwin Ogar, Raphael Akamo, Abel Egbe, Abel Aimor and others now at large, on 27th day of December, 1994 at New Ekuri village Akamkpa in the Akamkpa Magisterial District did conspire among yourselves to effect an unlawful purpose to wit, breaking and stealing (sic) and thereby committed an offence punishable under section 518(6) of the Criminal Code, Cap. 31, Vol. 2, Laws of the Cross-River State of Nigeria, 1983.

Court II

That you Patrick Akwa, Chief Clement Agbor, Chief Edwin Ogar, Raphael Akamo, Abel Egbe, Abel Aimor and others now at large, on the same date and place in the Magisterial District aforesaid did break and enter into the dwelling house of one Chief Otey Esira with intent to commit felony there in and thereby committed an offence punishable under section 411(1) of the Criminal Code, Cap. 31, Vol. 2, Laws of the Cross-River State of Nigeria, 1983.

Court III

That you Patrick Akwa, Chief Clement Agbor, Chief Edwin Ogar, Raphael Akamo, Abel Egbe, Abel Aimor and others now at large, on the same date and place in the Magisterial District aforesaid did steal New Ekuri antiquities, such as (1) Emon (2) Okpang (3) Lakondola Obuol (4) Ebolche and (5) Ibangmkpe, valued N500,000.00, kept in the house and custody of Chief Otey Esira property of New Ekuri village and thereby committed an offence punishable under section 390 (9) of the Criminal Code, Cap. 31, Vol. 2, Laws ofthe CrossRiver State of Nigeria, 1983″.

Count IV

That you Partrick Akwa, Chief Clement Agbor, Chief Edwin Ogar, Raphael Akamo, Abel Egbe, Abel Aimor on the same date and place in the Magisterial District aforesaid did unlawfully assault one Mbel Otey by beating him with sticks and gave him fist blows all over his body thereby committed an offence punishable under section 351 of the Criminal Code, Cap. 31, Vol. 2, Laws of the Cross-River State of Nigeria, 1983”.

Each of the appellants represented by counsel elected summary trial and pleaded not guilty to each of the counts. Thereafter, the prosecuting Police Officer Sergeant Edet Asuquo called four witnesses who testified for the prosecution and were duly cross examined by learned counsel for the appellants. Although the background facts of the case are not material for the purpose of this appeal, it is not out of place to narrate them albeit briefly. As presented by the four witnesses for the prosecution. On 27/12/94, Chief Otey Esira (PW.1) was in his house with some other Chiefs and some members of his household deliberating on some matters in broad daylight when the six appellants and others at large armed with sticks riotously, advanced to them in his house at New Ekuri village, broke into the P.W.1’s house and started carting away the various items mentioned in the charge. As Mbel Otey, the son of P.W.1 emerged at the scene to find out what was happening, the appellants attacked and assaulted him. The incident was promptly reported to the police and after due investigation, the six appellants were charged to court. At the end of the case for the prosecution, on 30/4/96, the case was adjourned for a ‘No Case’ submission by learned counsel for the appellants. The record of proceedings in the Chief Magistrate’s court for 5/6/96 shows that the learned counsel for the appellants at the trial, J. U. Ogban, Esq., applied to make a no case submission and to rest his case on it, but the statement that he intended to rely on the submission is vigorously disputed.

However, learned counsel addressed the court elaborately in respect of all the counts of the charge and submitted that the prosecution had failed to prove the ingredients of the offences charged. At the conclusion of the ‘No Case’ submission on 5/6/96, proceedings were adjourned to the next day, that is, 6/6/96 when the learned Chief Magistrate delivered his final judgment in which he found all the accused persons not guilty on count 2 but found them guilty on all the other counts. In sentencing them, he ordered them to produce the items of property removed from the complainant’s house on or before 9th June, 1996 and in the alternative they were to serve a term of 2 years imprisonment. Although the judgment of the learned trial Chief Magistrate in the record of proceedings covers 9 pages of the typed script, it is alleged by the appellants that the judgment he delivered in open court did not last two minutes to read and that he had re-written the judgment on being intimidated by counsel for the appellants that he was going on appeal. An appeal was eventually lodged to the High Court, Calabar, on 24/6/96 and on 26/6/96 the 3rd appellant Chief Edwin Ogar on behalf of the others swore to an affidavit challenging the correctness of the record of proceedings having on 18/6/96 procured a copy of the judgment of the learned trial Chief Magistrate. The appellants’ appeal was subsequently heard at Calabar High Court by Binang, J. who on 15/4/97 dismissed the appeal affirmed the convictions of the appellants but varied the sentences imposed by the learned Chief Magistrate.

Dissatisfied with the decision of the High Court the appellants have lodged a further appeal to this court. The appeal is predicated on seven grounds of appeal. Briefs of arguments were filed and exchanged. The appellants by their learned counsel subsequently filed an amended brief of argument dated 24th August, 2001 and filed on the same date which their learned counsel adopted and relied upon on 21st November, 2001 when the appeal was heard. The respondent’s counsel was not present in court when the appeal was heard but since he had earlier filed his brief dated 25th September, 2000, which was filed on 26th September, 2000, the appeal was deemed argued on that brief. Each brief contains three issues for determination. As identified in the appellants’ brief, the issues for determination are as follows:-

“1. Whether the lower court was right in proceeding to determine the appeal when the authenticity of the record of proceedings of the trial court has been challenged and not resolved.