ROWLAND, J.C.A. (Delivering the Leading Judgment): This appeal is against the alleged judgment of E.I.N. Nwogu, J (now late) sitting at the High Court of Imo State, held, at Owerri, which judgment was alleged to have been delivered on 17th October 1991, whereby the appellant was convicted and sentenced to death for the murder of one Boniface  Onukwugbe contrary 10 section 319 of the Criminal Code. Aggrieved by the alleged judgment the appellant has appealed to this Court. The Amended Notice of Appeal contains four grounds of appeal. They read with their particulars as follows:-

"1.          The judgment is unwarranted, unreasonable, and cannot be supported having regard to the evidence.

2.         The trial, conviction and sentence passed on the Accused/Appellant by the Learned Trial Judge art a nullity in that the accused was not arraigned in accordance with the mandatory provisions of S. 215 of the Criminal Procedure Law and S. 33(6) of the Constitution of the Federal Republic of Nigeria 1979.

PARTICULARS

a)         There is nothing on record to show that any plea was taken and that the trial Judge was satisfied that the charge, was read over and explained to the accused person in compliance with the Criminal Procedure Law.,

b)        There was no valid trial in law.

c)         It is a precondition for a valid trial that the charge must be read and explained to an accused and he is called upon plead thereto.

3.            The trial is vitiated by procedural irregularities and the whole trial is a sham.

PARTICULARS:

a)         The trial is procedurally inconclusive.

b)        There is no judgment on record.

c)         What took place all through is mistrial.

d)        There was no trial in law.

4.         The learned trial Judge erred in law in convicting and sentencing the accused to death when there was no evidence in proof of the charge and the prosecution failed to discharge the burden placed on it, under S. 138 Evidence Act 1990 Laws of the Federation of Nigeria.

PARTICULARS

a)         Prosecution failed to prove its case beyond reasonable doubt

b)        The judgment of the court is speculative and was not a proper reflection of the evidence available.

c)         There was no fair hearing in the circumstance."

In accordance with the practice of this Court the parties exchanged briefs of argument. From the grounds of appeal the appellant identified and formulated two issues which read as follows:-

"1.        Whether the trial, conviction and sentence passed can stand, to wit, whether it is not a nullity.

2.         Whether there was a valid trial in law." The respondent formulated only one issue.

It reads:-

"What is the proper order to be made in the circumstance of the missing records?”

It is not in dispute and it is not disputed that the record of proceedings of this case is incomplete. The facts of the case as could be gleaned from the incomplete record run thus:- The appellant alleged that he was tried and convicted for murder. There is no doubt that there was a trial as manifest by the record. The record of proceedings contains the evidence of P.W.4 and P.W.7, address of counsel, and, mere record that judgment was delivered on 17th October, 1991. Parts of the record that would have reflected the charge, the plea and evidence of P.W.1-P.W.3 were said to have been missing as well as the judgment. The Chief Judge of Imo State wrote a letter dated 16th March, 1995 to the appellant that some parts   of the record of proceedings cannot be found and that the learned trial Judge is dead. See page 44 of the record. The learned trial Judge is now dead and no reference can be made to him and he did not drop hints about the where about of the missing parts of the records.

The learned counsel for the appellant in appellant's brief argued the two issues formulated together. It was submitted that the records available show that no plea was taken in the charge, and there is nothing to show that the trial Judge was satisfied that the charge was read in the language the appellant understood, and explained to him in compliance with the mandatory provisions of section 215 of the Criminal Procedure Law and section 33(6) of the Constitution of the Federal Republic of Nigeria 1979 as amended. It was argued that the need for a charge being read and explained to an accused person and calling upon him to plead thereto is his constitutional right. It was contended that the non-compliance with the provisions of section 215 Criminal Procedure Law and section 33(6) (a) of the; 1979 Constitution of the Federal Republic of Nigeria does not amount to mere irregularity but goes to the root of the matter and is fundamental to the exercise of jurisdiction of the court to proceed with the trial. Reference was made to the following case:- Kajubo v. Stale (1988) 1NWLR(PL 73) 721; Ewe v. State (1992) 6NWLR (PL 246) 147; Nwankwo v. Stale (1990) 2NWLR (PL 134) 627. It was further submitted that the entire trial is vitiated by some fundamental errors which permeated the entire trial. The fundamental errors it was submitted have occasioned a substantial miscarriage of justice and therefore a mistrial. A number of cases were cited and relied upon. It is the contention of the appellant that in the circumstances of this case and the available evidence from the records, this is not a proper case to order a retrial. It was submitted that it is a proper ease to discharge and acquit the appellant Reference was made to Ankwa v. The State (1969) 1 All N.R. 133. Akinfe v. The State (1988) 3 NWLR (PL 85) 729; Eliem v. The State (1990) 7 N.W.L.R. (Pt 160)113.

For the respondent it was submitted that the judgment in this case is missing and the appeal is not based on any decision, judgment or ruling or the court. It was argued that an appeal .whether with leave or as of right shall arise from decisions of a court as provided in sections 220 to 221 of the 1979Constitution of the Federal Republic of Nigeria. It was contended that the appellant in this case has no right of appeal. It was submitted that Exhibits E and D show that part of the record that would have reflected the charge, the plea and evidence of P.W.1 to P.W.3 are missing and cannot be traced.

It was further submitted that the appellant himself stated that "the judgment was not seen and no one is sure of the contents of the judgment and reasons for convicting the appellant.'' The respondent contended that it is wrong for the appellant to take the missing of the parts of the record as a mistrial. A mistrial it was submitted, simply means an error made in a trial of sufficient seriousness to justify the dismissing of the proceedings and order a retrial.

It is the contention of the respondent that to state that there was no plea in the circumstance of the missing record is delving into the field of speculation and assumption. It was submitted that is the duty of any court subject to the provisions of the Constitution to make any order which it considers necessary for doing justice between the parties  before it. Reference was made to the cases of Awoyale v. Ogunbiyi (No. l) (1985) 2 NWLR (Pt 10) 861; N.A.A. v. Adewale (1985) 3 NWLR (Pt. 13) 474. The respondent concluded that in the circumstance of this case the proper order that this Court should make is that of a retrial to enable a valid judgment to come out as there is no existing judgment.

I must say straightaway that from the provisions of sections 220 and 221 of the 1979 Constitution of the Federal Republic of Nigeria, the appellant has a constitutional right of appeal to this Court and thereafter to the Supreme Court. However, such appeal must arise from a decision of a court. In other words, although the appellant in the case in hand has a constitutional right of appeal but such an appeal must be based on a decision of a court.

Section;277 (1)of the 1970 Constitution say “decision” means, in relation to a court, any determination of that court and includes judgment, decree, order, conviction, sentence or recommendati6n."It is manifest from Exhibits ‘S’ and ‘ D’ at pages41and 44 of the record of proceedings that parts of the record that would have reflected the charge, the plea and evidence of P.W. l to P.W. 3 are missing and cannot be traced. This fact is also accepted by the appellant in his brief. The arguments in the appellant's brief to the effect that there was no proper trial or that there was a mistrial by the court below beat me hallow. By virtue of the provisions of section 132(1) of the Evidence Act, Cap 112 of the Laws of the Federation, 1990, we cannot make proper reference to the record or judgment of this case at the court below without the complete record and the complete judgment properly placed before this Court. Page 39 of the record of proceedings only recorded that-the judgment was delivered on 17th October, 1991 and signed by E.J.N. Nwogu J. The judgment itself is not there. It is common ground that the trial Judge is dead. Without much ado therefore, it cannot be assumed from the incomplete record of the proceedings before this court that the learned trial Judge did not comply with the mandatory provisions of section 21,of the Criminal Procedure Law or that there are serious errors, in the judgment of the court below to  vitiate the whole proceedings that should enable the appellant to walk free out of the prison custody in which he is presently held. I hasten therefore to say that all the cases cited in the appellant's brief are irrelevant and inapplicable to the circumstances of this case .

There is no doubt that the appellant wants justice. But 'justice' is, not a one way traffic. There should be justice to the appellant who is anxious to breath air of freedom, and justice to the deceased and his loved ones that he has left on this planet. It should be mentioned that since the appellant was tried for murder under section 319 of the Criminal Code as borne by the record of proceedings, it is poly fait that he should have a fair trial devoid of legal technicalities. As I have said above, one cannot say from the record of proceedings  that there was a decision in this case. If there was no decision the proper order should be that of striking out this appeal. However, if the substance of the matter should be considered, there must have been a decision that has kept the appellant in prison custody since 17/10/91 awaiting his appeal or purported appeal to this Court. A murder charge is a serious charge which should also be taken seriously by the court. That being so, I consider  it necessary from all the circumstances of this case to allow this appeal and order a retrial before another Judge. To ask the appellant to walk out of prison scot-free because of incomplete record in a murder charge to my mind will occasion a miscarriage of Justice.

Also, not to order a retrial de novo will Occasion a greater miscarriage of justice. See Abodundu v. The Queen (1959) SCNLR 162; (1959) 4 F.S.C. 70.

I therefore in the special circumstance of this case allow this purported appeal and make an order that the appellant be retried de novo before another High Court Judge in Imo State High Court.

KATSINA-ALU, J.C.A.: I have read in advance the judgment of my learned brother Rowland. J.C.A. in this appeal. I entirely agree that the matter be remitted to the High Court to be tried de novo before another judge.

The appellant has a constitutional right of appeal to this court and thereafter to the Supreme Court. The loss of the Judgment of the lower court in this matter is not the fault of the appellant but that of the Registrar of the lower court. The proper order in the circumstance will be one of a retrial having regard to the serious nature of the offence with which the appellant is charged. See Abodunu v. The State (1959) SCNLR 162; (1959) 4 FSC 70; Engineering Enterprise v. A.G.Kaduna (1987) 2 NWLR (Pt. 57) 381. , I also allow the appeal and remit the case to the court below to be retried de novo before another Judge of the Imo State High Court.