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 le