HENRY OKONOFUA v. THE STATE
(2019)LCN/13834(CA)
In The Court of Appeal of Nigeria
On Friday, the 1st day of November, 2019
CA/B/475C/2014
RATIO
WHEN CASES RELIED UPON ARE NOT IMPARI MATERIAL WITH THE CASE ON TRIAL
I am of the opinion that the cases heavily relied upon by the appellant are not applicable to the facts and circumstances of this case. The cases relied upon by the appellant essentially flow from and/or re-echo the decision of the Supreme Court in the case of Nosiru Attah v. The State (1993) 7 NWLR (Pt. 305) 257, especially the dissenting opinion of Karibi-Whyte, JSC. It should be noted that in the case of Nosiru Attah v. The State (supra), there was in fact no record of the appellant?s plea in respect of the amended counts. See page 259 of the Law Report. Secondly, the amendment to the charge in this case was essentially to remove the initial first count of conspiracy to commit the offence of kidnapping and leave the initial second and third counts, respectively, of the offence of kidnapping and which offence the appellant and his co-accused had even earlier pleaded to on the 17th day of April, 2012 before the amendment made on the 31st day of July, 2012. PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
WHETHER THE TRIAL COURT COMPLIED WITH FORMAL REQUIREMENTS OF A VALID PLEA AFTER ALTERATION OR AMENDMENT OF THE CHARGE
Assuming that there were slight adjustments in the counts of kidnapping, to which the appellant had pleaded to prior to the amendment and even after the amendment in issue, since the record of the trial Court shows clearly that a fresh plea was taken by the appellant, there is a presumption that the trial Court complied with the formal requisites for a valid plea after the alteration or amendment of the charge. SeeSection 168 (1) of the Evidence Act, 2011 and the case of Federal Republic of Nigeria v. Mohammed Abubakar (2019) 7 NWLR (Pt. 1670) 113. PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
TECHNICALITIES IN DECIDING MATTERS RATHER THAT ALLOWING FOR JUSTICE TO PREVAIL
All that I am saying is that, even in criminal cases, our Courts have departed and moved away from the era of technical justice to that of doing substantial justice. See Obinna John v. The State (2019) 9 NWLR (Pt. 1676) 160 at 174, per Okoro, JSC.
It should be noted that in the case of Obinna John v. The State (supra), the appellant wanted the Supreme Court to interfere with the decisions of the trial Court and the Court of Appeal on the ground that the charge upon which he was tried and convicted was not signed by any known legal practitioner. The Supreme Court ignored the appellant?s complaint on the grounds, inter alia, that the irregularity complained of ?did not occasion any miscarriage of justice against the appellant and the fact that the appellant … confessed to the commission of the offence. Similarly, in this case, the appellant confessed to the commission of the crime and the omission of the trial Court complained of did not occasion any injustice against the appellant. PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
JUSTICES
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
Between
HENRY OKONOFUA Appellant(s)
AND
THE STATE Respondent(s)
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment): The appellant was the 2nd accused in Charge No. B/68C/2013 wherein four accused persons were charged with the following offences:-
COUNT I
That you Iriagbonse Osunde, Henry Okonofua, Obinna Iwuoha, and others now at large, on or about the 17th day of October, 2009, at Envoy Hotel G.R.A., Benin City, in the Benin Judicial Division did conspire with one another to commit a felony to wit: kidnapping and thereby committed an offence punishable under Section 516 of the Criminal Code Cap 48, Vol. II Laws of the defunct Bendel State 1976 now applicable to Edo State.
COUNT II
That you Iriagbonse Osunde, Henry Okonofua, Obinna Iwuoha, and others now at large, on or about the 17th day of October, 2009, at Envoy Hotel G.R.A., Benin City, in the Benin Judicial Division did unlawfully kidnapped and abducted one Eshohe Eguavoen and kept her in the room of one Henry Okonofua at No. 4, Enoghoro close off Sapele Road, Benin City, demanded and received the sum of N3.5 million (three million, five hundred thousand naira), and thereby committed an offence contrary to Section 2 (2) and punishable under Section 3 (2) of Kidnapping (prohibition) Law 2009.
COUNT III
That you Ayuba Amadu sometimes in the year 2009 in Benin City, in the Benin Judicial Division knowing that one Henry Okonofua to be involved in kidnapping received the sum of N1.5 million and $10,000 US Dollars from the said Henry Okonofua and kept same for him and thereby committed an offence punishable under Section 519 of the Criminal Code Cap 48 Vol. II, Laws of the defunct Bendel State of Nigeria 1976 now applicable to Edo State.?
The above charge was later amended to be as follows:-
COUNT I
That you Iriagbonse Osunde, Henry Okonofua, Obinna Iwuoha, and others now at large on or about the 17th day of October 2009, at Envoy Hotel G.R.A., Benin city, in the Benin Judicial Division did kidnap one Esohe Gabrriella Eguavoen, for a ransom of N3.5 million (Three Million Five Hundred Thousand Naira) and thereby committed an offence contrary to Section 2(1) and punishable under Section 3(2) of the Kidnapping (Prohibition) Law 2009 of Edo State.
COUNT II
That you Ayuba Amadu ?m? sometime between the month of October and December 2009, at Benin City, in the Benin Judicial Division did aid and abet Iriagbonse Osunde, Henry Okonofua, Obinna Iwuoha in the kidnap of one Esohe Gabriella Eguavoen by receiving the ransom of N3.5m (Three million, five hundred naira) and thereby committed an offence punishable under Section 5(1) of the Kidnapping (prohibition) Law 2009 of Edo State.?
At the conclusion of trial, the 4th accused, Ayuba Amadi, was discharged and acquitted, while the appellant and the other two accused persons were found guilty and each ?is sentenced to imprisonment for life?.
This appeal is against the said decision. The appeal was heard on the amended notice of appeal filed on 21/09/2015; the appellant?s brief filed on 19/01/2017 and the respondent?s brief filed on 26/04/2018 but deemed as properly filed on 27/03/2019. Learned counsel for the appellant distilled the following issues for determination, which issues were taken together:-
i) Whether the trial and conviction of the appellant by the learned trial judge is not liable to be declared a nullity by reason of the failure of the trial Court to take the plea of the appellant before commencement of trial.
ii) Whether the learned trial judge was right when he failed to take the plea of the appellant after the amendment of charge and call upon the appellant to state whether the appellant is ready to be tried on the amended charge after the amendment.?
On behalf of the respondent, a sole issue was framed for determination as follows:-
Whether the trial and conviction of the appellant by the learned trial Judge can be declared a nullity where on the face of the records, the trial Court has sufficiently complied with the provisions of Section 164 and 215 of the Criminal Procedure Act.?
Learned counsel for the appellant referred to Section 33 (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Section 215 of the Criminal Procedure Law and the cases of Ganiyu Lawal & Ors. v. The State (2011) LPELR ? 4186 (CA) and Esther Sokeye v. The State (2010) LPELR ? 4968 (CA) and submitted that ?the above statutory and constitutional provisions impose an obligation on a trial judge in a criminal trial to ensure that the charge or the information is read to an accused person and his plea taken and recorded before commencement of trial? and that ?failure to comply with Section 215 of the Criminal Procedure Law is that the trial, conviction and sentence passed on the appellant is null and void?.
The appellant?s counsel also argued that failure to strictly comply with Section 164 (1) of the Criminal Procedure Law, especially the second limb thereof, after the charge was amended, also rendered the subsequent trial a nullity. According to learned counsel, ?it is not enough to comply with the first part by taking the plea of the accused person?. In support of this argument, the Court was referred to the cases of Joel Omoze v. The State (Unreported) Appeal No. CA/B/519C/2014 and Ogudu v. State (2012) All FWLR (Pt. 629) 1111 at 1147.
In response, learned counsel for the respondent argued that the Supreme Court had laid down the procedure and method of taking the plea of an accused in a litany of cases, including the cases of Tebby v. The State (2001) 86 LRCN 1387 and Durwode v. The State (2000) 82 LRCN 3038.
Learned counsel for the respondent referred to the proceedings of the trial Court, especially those of the 17th day of April, 2012 on pages 1 and 2 of the additional record of appeal, compiled and transmitted on 28/06/2017 but which was deemed as properly compiled and transmitted on 16/11/2017, and submitted, inter alia, that the trial Court complied with the provisions of Section 215 of the Criminal Procedure Act.
The substance of the appellant?s arguments in this appeal is that the trial Court failed to take his plea before the commencement of his trial and that it also failed to strictly comply with the provisions of Section 164 (1) of the Criminal Procedure Law, after the charge was amended.
A perusal of the complimentary record of appeal, compiled and transmitted to this Court on 28/06/2017 but which was deemed as properly compiled and transmitted on 16/11/2017, shows clearly that the respective plea of the appellant and each of his co-accused persons was duly taken by the trial Court on the 17th day of April, 2012, before the case was adjourned to 03/05/2012 for hearing or trial ?on the agreement of all counsel?. See pages 1 and 2 of the complimentary record of appeal.
In respect of the second leg of the appellant?s complaint, the record of the proceedings on the 31st day of July, 2012 shows clearly that after the charge was amended, the trial Court called upon each of the accused persons, including the appellant herein, to plead to the amended charge. For the avoidance of doubt, the relevant record on pages 7-8 of the complimentary record of appeal is hereunder reproduced:
?Mrs. Adekanmbi: I apply to amend the charge substituting the two count charge filed this morning for the three count charge before the Court.
Erhabor Esq: No objection.
Miss Owie: No objection.
Omatseye Esq: No objection.
Court: Following the oral application to amend the charge by substituting the two count charge filed this morning for the three count charge on which the accused persons have been standing trial, which is not opposed, leave is accordingly granted as prayed to amend the charge by replacing the existing charge with the two count charge filed on 31/7/2012. The accused persons are called upon to take plea to the two count charge.
P L E A: of the accused persons:
Court: Count one of the charge is read and explained to each of the 1st, 2nd and 3rd accused persons in English language by the Registrar of the Court and they each appear perfectly to understand and plead as follows:-
1st accused: ?I am not guilty?.
2nd accused: ?I am not guilty?.
3rd accused: ?I am not guilty?.
Court: Count 2 of the charge is read and explained to the 4th accused person in English language by the Registrar of Court in English language and he appears perfectly to understand and pleads as follows:-
4th accused: ?I am not guilty?.?
In its judgment, the trial Court, on page 129 of the record of appeal also stated as follows:-
The 1st, 2nd and 3rd accused persons in this case were initially charged in counts 1 and 2 of the charge with conspiracy and kidnapping contrary to the provisions of the kidnapping (prohibition) Law 2009, while the 4th accused person charge with being an accessory after the fact under Section 519 of the Criminal Code. The charge was subsequently amended. Each of the 1st, 2nd and 3rd accused persons pleaded not guilty to count one of amended charge on 31/7/12, while the 4th accused pleaded not guilty to count two thereof.
The appellants argument is that there is nothing on record to show that he was asked ?to state whether he is ready to be tried on such charge or altered charge? as stipulated by Section 164 (1) of the Criminal Procedure Law. For this sole reason, the appellant is asking the Court to declare his trial as ?null and void?.
I am of the opinion that the cases heavily relied upon by the appellant are not applicable to the facts and circumstances of this case. The cases relied upon by the appellant essentially flow from and/or re-echo the decision of the Supreme Court in the case of Nosiru Attah v. The State (1993) 7 NWLR (Pt. 305) 257, especially the dissenting opinion of Karibi-Whyte, JSC.
It should be noted that in the case of Nosiru Attah v. The State (supra), there was in fac
