ALONGE TEMITOPE V. THE STATE
(2010)LCN/4097(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 8th day of December, 2010
CA/B/291C(A)/2008
RATIO
AMENDMENT OF A CHARGE: WHETHER A CHARGE CAN BE VALIDLY AMENDED EVEN AFTER FINAL ADDRESSES OF COUNSEL
The law is well settled that a charge can be validly amended even after final addresses of counsel. See DOMINIC PRINCENT & ANOR. V. THE STATE (2002) 18 NWLR (Pt. 798) 49 at 67-68. PER MOORE A. A. ADUMEIN, J.C.A.
INTERPRETATION OF STATUTE: INTERPRETATION OF SECTION 163 AND 164 (1) OF THE CRIMINAL PROCEDURE LAW OF ONDO STATE AS IT RELATES TO THE PROCEDURE TO BE FOLLOWED WHEN AN INFORMATION OR A CHARGE IS ALTERED
Sections 163 and 164 (1) of the Criminal Procedure Law of Ondo State prescribe the procedure to follow when an information or a charge is altered. Those sections provide thus: “163. Any court may alter or add to a charge at any time before judgment is given or verdict returned and every such alteration or addition shall be read and explained to the accused. 164 (1)-lf a new charge is amended or alteration to the charge under the provisions of section 162 or 163, the court shall forthwith call upon the accused to plead thereto and to state whether he is ready to be tried on such charge or altered charge”. (underlining mine) The use of the word “shall” in sections 163 and 164 (1) of the Criminal Procedure Law places a mandatory burden on the court to invite an accused person to take his plea again, once a charge or an information is altered or amended. The magnitude or quantum of the amendment involved and the reasons for the amendment are irrelevant. PER MOORE A. A. ADUMEIN, J.C.A.
PLEA OF AN ACCUSED: WHETHER ONCE INFORMATION OR A CHARGE IS ALTERED OR AMENDED, THE PLEA OF THE ACCUSED MUST BE TAKEN AGAIN
The law is settled that once information or a charge is altered or amended, the plea of the accused must be taken again.There are many decided cases on this issue. For example, in YOUNG UKAUWA UGURU V. THE STATE (2002) 9 NWLR (Pt.771)90 at 103, para. D, the Supreme Court, per KALGO, J.S.C. while interpreting section 163 of the Criminal Procedure Law of Eastern Nigeria, 1963 which is in pari materia with section 163 of the Criminal Procedure Law of Ondo State, 1978, held as follows: “This section empowers a court to alter, amend or add to any charge in any criminal case before it at any time before judgment is given in the case …..but ….that the amended charge be read out and explained to the accused.” (underlining mine) In OKOSUN V. THE STATE (1988) 7 SCNJ 118, where a charge of robbery was amended during the trial and the trial continued without a fresh plea by the accused, the conviction and sentence of the accused was nullified by the Supreme Court. Similarly in OKEGBU V. THE STATE (3FSC) 14, the Federal Supreme Court allowed an appeal, and set aside the conviction of the accused for murder on the ground that the trial court did not comply with sections 163 and 164 (1) of the Criminal Procedure Act by failing to obtain a fresh plea from the accused after the first amendment. In that case, the charge was amended twice. After the first amendment, a fresh plea was not taken. There was fresh plea after the second amendment, yet the trial and conviction of the accused was declared null void and of no effect. PER MOORE A. A. ADUMEIN, J.C.A.
ARRAIGNMENT :CONDITIONS THAT MUST BE COMPLIED FOR THERE TO BE A VALID ARRAIGNMENT; EFFECT OF THE FAILURE TO COMPLY WITH ANY OF THE CONDITIONS ON A TRIAL
In law a valid arraignment consists of the following elements which much co-exist. (1) The accused must be present and unfettered before the trial Court. (2) The charge must be read and explained to him in the language he understands to the satisfaction of the Court by the registrar of the Court. (3) The accused shall be called upon to plead and (4) His plea shall be instantly recorded by the Court. Failure to comply with any of the four conditions will render the subsequent trial a nullity. See Solola v. State (2005)11 NWLR (Pt.937) 460 SC; Lufadeju v. Johnson (2007)8 NWLR (Pt.1037)538 SC; Amala v. State (PW.4) 12 NWLR (Pt.888) 520 SC. The mandatory nature of the above requirements of a valid arraignment is evident from S.36 (6)(a) of the Constitution of The Federal Republic of Nigeria (1999). Non-compliance with any of the requirements will vitiate the trial and render it a nullity. See Dibe v. State (2007) 9 NWLR (Pt.1038) 30 SC. PER NWALI SYLVESTER NGWUTA, J.C.A.
ARRAIGNMENT: WHETHER WHENEVER A CHARGE IS ALTERED OR AMENDED, IT IS MANDATORY FOR THE COURT TO TAKE A FRESH PLEA OF THE ACCUSED
It is trite law that where there is an amendment to a charge the requirement for a valid arraignment must be complied with. See Attah v. State (1993)7 NWLR (Pt.305) 257SC wherein the apex court held “It is settled law that where a charge of a single count is altered or amended, it is mandatory for the Court to take a fresh plea of the accused and it is imperative on the accused to plead to the amended charge. This procedure is fundamental and failure to comply with it renders the conviction based on the amended count invalid”. PER NWALI SYLVESTER NGWUTA, J.C.A.
JUSTICES
NWALI SYLVESTER NGWUTA Justice of The Court of Appeal of Nigeria
CHINWE E. IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
ALONGE TEMITOPE Appellant(s)
AND
THE STATE Respondent(s)
MOORE A. A. ADUMEIN, J.C.A. (Delivering the Leading Judgment): The appellant and one Bunmi Ayodele were arraigned in the High Court of Ondo State. Count 2 of the information filed against accused persons reads as follows:-
“COUNT II:
STATEMENT OF OFFENCE
ARMED ROBBERY, contrary to and punishable under Section 1 (2) (b) of the Robbery and Firearms (Special Provisions) Act Cap 398 Vol. XXLL Laws of the Federation of Nigeria, 1990.
PARTICULARS OF OFFENCE
Alonge Temitope and Bunmi Ayodele on or about the 18th day of March, 2006 at No.30 Ala Close off Sijuade Akure in the Akure Judicial Division robbed one Mrs. lkengboju Onasile of the sum of Five Hundred Naira, One Sagem phone, VCD player, a Video machine, while armed with offensive weapons to wit, gun and knife.”
The case was tried and determined by O.O. Akeredolu, J. of the Ondo State High Court, sitting at Akure, who delivered judgment on the 10th day of December, 2007 whereby the appellant and his co-accused – one Bunmi Ayodele were convicted of armed robbery and, accordingly, sentenced to death by hanging or firing squad.
The appellant was not satisfied with the judgment of the lower court and he filed a notice of appeal, which contains 9(nine) grounds. The notice of appeal and the grounds and particulars thereof cover pages 112 to 118 of the record of appeal. With leave of court, the appellant filed an amended notice of appeal on the 25th day of June 2010 and the grounds, sieved or weeded of their particulars, are hereby reproduced as follows:-
“GROUNDS OF APPEAL
GROUND 1
The Learned Trial Judge erred in law when she held at page 24 of the Judgment as follows:
“The testimony of PW 1 is plausible and I believe it in toto. Therefore prosecution has satisfied the first two requirements laid down in the case of Bozin v The State (supra).”
“The testimony of PW 1 is plausible and I believe it in toto. Therefore prosecution has satisfied the first two requirements laid down in the case of Bozin v The State (supra).”
GROUND II
The Learned Trial Judge erred in law when she held that at page 25 paragraph 3 of the judgment as follows:
“….. The only objection to admissibility raised by learned counsel was with regard to Exhibits P1 and P2, they were admitted after trial within trial in line with the decision of the Court of Appeal in the case of Madjemu v. The State (supra). There was no learned counsel merely remarked that the accused persons said they were copies of their earlier statement. The 1st Accused person said that Sgt. Adejoh who testified as PW4 did not torture him when he obtained his statement. The 2nd Accused said he was tortured only in his evidence not at the point of admission of Exhibit P5”.
GROUND III
The Learned Trial Judge erred in law when she held at page 25 paragraph 1 of judgment as follows:
“…. The rule still remains inviolate that where objection has not been raised by the opposing party to the reception of evidence of a document ….The document will be admitted in evidence and the opposing party cannot afterwards be heard to complain about its admission”.
GROUND IV
The Learned Trial Judge erred in law when she held at page 27 paragraph 2 to the effect that:
“There is no evidence before me from which I can infer that some other than the accused persons could have committed this crime…”
GROUND V
The Learned Trial Judge erred in law when he relied heavily on the evidence of PW1, PW2, PW3, Exhibits P1 and PW4 in convicting the 1st Accused person.
GROUND VI
The learned Trial Judge erred in law when he held at page 29 paragraph 1 of her Judgment as follows:
“The only major difference between the evidence of PW1 and Exhibits P1 and P4 is that the witness said that the robbers were armed with gun and stick whilst in the exhibits the 1st Accused said they were armed with sticks. There is no evidence that a gun was recovered from the accused persons, therefore, no gun was tendered as exhibits.
Nonetheless, in view of the uncontroverted testimony of the witness that one of her assailants was armed with gun, the difference does not reduce the probative value of the exhibits”.
GROUND VII
The Learned Trial Judge misdirected herself when she held that DW1 is a person interested in the outcome of the matter thereby disbelieving her evidence.
GROUND IX
The Learned Trial Judge erred in law when she did not take the plea of the Appellant to the amended information or count preferred against him at the trial court.”
The appellant and the respondent, through their respective learned counsel, filed and exchanged briefs of argument. The appellant’s brief, settled by Akinfemi Michael Owoyemi, Esq., was filed on the 25th day of June, 2010 while the respondent’s brief of argument, settled by Mrs. A.O. Adeyemi- Tuki, Esq. (Director of Public Prosecutions, Ondo State) was filed on the 23rd day of July, 2010.
At the hearing of the appeal, Owoyemi, Esq, leading some other learned counsel appeared for the appellant. The learned counsel for the appellant adopted the appellant’s brief, relied on it and urged the court to allow the appeal, set aside the judgment of the lower court and discharge and acquit the appellant.
Mrs. Adeyemi- Tuki, led some other learned counsel from the Ministry of Justice, Ondo State for the respondent. Mrs. Adeyemi- Tuki adopted the respondent’s brief and also relied on it.
Mr.Owoyemi, learned counsel for the appellant, in his brief of argument, formulated the following issues as calling for determination, namely:
“(1) Whether Exhibits P1 and P4 (i.e. the alleged statements of the Appellant met the requirement of voluntariness to qualify same as confessional statements upon which the learned trial Judge could base her sentence of death on the Appellant.)
(2) Whether the failure of the learned trial Judge to order alleged within trial in respect of Exhibit P4 (i.e. the alleged second confessional statement of the Appellant at the Special Anti-Robbery Squad, Akure) did not vitiate its admissibility by the learned trial Judge as a confessional statement.
(3) Whether from the circumstances of this case, the prosecution had actually proved its case beyond reasonable doubt’s against the Appellant in spite of the obvious and material contradiction in the evidence of the prosecution witnesses and exhibits PW3 and PW4.
(4) Whether the failure of the learned trial Judge to obtain fresh plea from the Accused/Appellant after the amendment of the information preferred against the Appellant did not render the entire proceedings leading to the conviction and sentence of the Appellant to death null and void.”
The foregoing issues were argued seriatim by the learned counsel for the appellant. The learned counsel for the respondent agreed with the four (4) issues formulated by the learned counsel for the appellant. Mrs. Adeyemi – Tuki, learned counsel for the respondent, accordingly proffered argument on the 4 (four) issues in the respondent’s brief.
In the determination of this appeal, I intend to first determine the fourth issue formulated by the appellant. Thereafter, if need be, the first and second issues will be taken together; the third issue formulated by the appellant will be taken last.
ISSUE No.4
Whether the failure of the learned trial Judge to obtain fresh plea from the Accused/Appellant after the amendment of the information preferred against the Appellant did not render the entire proceedings leading to the conviction and sentence of the Appellant to death null and void.
The contention of Mr. Owoyemi, learned counsel for the appellant, is that the trial court ought to have taken a fresh plea after the amendment of the statement of offence in court II, that is by changing “section 1(2)(b)” to read “section-1(2)(a)” (underlining mine). The appellant’s counsel contended that it was automatic for the plea of the accused to be retaken after the said alteration or amendment to the charge or information and it was irrelevant that “the counsel to the Appellant compromised the right of the Accused person/Appellant when he said that there was no need to take the plea again”.
He cited and relied on the case of UKET V.F.R.N. (2008) ALL FWLR (Pt.411) 923 at 939-940. He argued further that neither the court nor the appellant’s counsel could compromise the issue of plea because it is a constitutional issue and, especially, as the offence carries death sentence. He referred to the case of YAHAYA V. STATE (2002) FWLR (Pt.93) 2044 at 2054-2055. Mr. Owoyemi submitted further that plea must be personal and that only the appellant could “be called upon to enter a plea to either fresh information or an amended one” and that the plea cannot be taken by counsel on behalf of the accused person. He cited and relied on the case of R. V. PEPPLE (1949) 12 WACA 441 referred in the book- Fundamentals of Criminal Procedure in Nigeria by Bob Osamor (Page 275).
The appellant submitted that the provisions of sections 163 and 164(1) of the Criminal Procedure Law, Cap.31. Laws of Ondo State, 1978, applicable to this case by virtue of section 18 of the Robbery and Firearms (Procedure) Rules (1975), mandatorily require the plea of the accused/appellant to be taken again after alteration of the charge and the non-compliance “by the trial court automatically renders the whole trial null and void”. He relied on the cases of OKUSON V. THE STATE (1979) NSCC 18 and KAJUBO V. THE STATE (1988)1 NSCC 475 at 479-480.
The learned counsel for the appellant argued that the learned trial judge had a duty or burden to comply with the provisions of sections 163, 164 and 215 of the Criminal Procedure Law of Ondo State and Section 35(5)(a) of the 1999 Constitution and ought not to have shifted this burden to the counsel to the accused/appellant, as the trial judge did in this case, because it was the appellant, and not his counsel, that was being tried. The appellant referred the court to the cases of GODWIN JOSIAH V. THE STATE (19-85) 1 SC 406 at 416; KAJUBO V. THE STATE (1998) 13 NWLR (Pt.583) 531. The appellant further argued that, because of the non-compliance complained of, the procedure set in Section 164 of the Criminal Procedure Law of Ondo State was not observed. He contended that the appellant was “sentenced and convicted in respect of an offence the Appellant did not plead to”. It was, therefore, contended that the entire proceedings amounted to a breach of the appellant’s fundamental right to fair hearing and the case of PRINCENT V. STATE (2002) 12 S.C (Pt.1) 137 AT 145-146 was cited in support of this contention.
In the respondent’s brief, learned counsel submitted that “the substitution of one section of a statute for another section, and which substitution in no way changes the substance of the offence or misleads the accused person would not prove fatal to a case- see HUMBLE V. THE STATE (1974) 5 SC 27”. Mrs. Adeyemi- Tuki Director of Public Prosecutions (D.P.P), Ondo State, the learned counsel for the respondent argued that, in this case, the appellant did not suffer any miscarriage of justice and was not misled as the amendment was even not necessary because the conviction of the appellant could have been sustained under the original section and she relied, on the case of R. V. ERONINI (1953) 14 W.A.C.A. 366: She contended that there “is ample evidence that personal violence was used on the person of the complainant (PW1) at the time of the robbery”. The learned DPP referred to the evidence of PW1 at page 12 of the record of appeal and also to the meaning of the word “violence” in Oxford Advanced Learner’s Dictionary (7th edition) and argued that the Robbery and Firearms Act merely “intends to make assault in the process of robbery a serious crime”. The respondent relied also on the comment on “assault” by T. A. Aguda in his book The Criminal Procedure of the Southern State of Nigeria, para. 1543.
The counsel for the respondent argued that since the appellant could have been convicted either on section 1(2)(a) or section 1(2)(b) of the Robbery and Firearms (Special Provisions) Act, the conviction and sentence of the appellant should be upheld, because to do otherwise would “provide the Appellant a gratuitous escape route to freedom in the face of overwhelming evidence- see Humble V. The State op cit, ECHEAZU V. COMMISSIONER OF POLICE (1974) 2 SC 55 and R.V. SHALABI (1935) 2 W.A.C.A 363”. The respondent further urged the court to uphold the conviction and sentence of the appellant because “the court has the power to substitute one section of a statute for another where the offence proved is included in the offence charged” and that doing so would not breach section 36(6) of the Constitution of the Federal Republic of Nigeria. Reliance was placed on the case of MAJA V. THE STATE (1980) 1 N.C.R. 212.
In the alternative to the above summarized submissions of the counsel for the respondent, the learned DPP urged the court to convict the appellant of the lesser offence created under section 5(b) of the Robbery and Firearms (Special Provisions) Act. She relied on the case of YOUNGMAN V. POLICE (1949) 4 F.S.C. 283. The respondent contended that “the court ordinarily has the power to convict for a lesser offence not even charged, provided it is proved, and this power becomes stronger where the lesser offence is actually charged as in the instant case – see pages 110-111 para. 336. The Criminal Procedure of the Southern State of Nigeria supra”.
With respect to the respondent, the appellant is not challenging the power of the trial court to amend the information or convict for a lesser offence in place of the offence with which the accused/appellant was originally charged. The contention of the appellant, as I understand it, is that the trial of the appellant was a nullity on the premise that the appellant’s plea was not taken again after count II of the information was amended. From the record of appeal, it is apparent that the information was amended by the trial court upon an oral application by the learned counsel for the prosecution. The record of proceeding in respect of the amendment in issue is as follows:
“Ologun: I have an application. I want to seek the leave of the court to correct or amend the typographical error on the information on count 2 from all indication the intention of the person who drafted the charge is for (sic) to read section 1 (2) (a) and not (b) as shown. I submit that the court has power to so do. Sequent to section 163 of the criminal procedure law Cap 31 Laws of Ondo State 1978.
Ojo: Whilst preparing the address I realized it must be typographical error. Therefore I have no objection.
Court: Order as prayed leave is hereby granted to the prosecution to amend count 2 of the information to read.
Statement of offence of Armed Robbery contrary to and punishable under section 1 (2) (a) of the Robbery and firearms (special provisions) Act Cap 398 vol. XXII Laws of the Federation of Nigeria 1990. (Pages 69-70 of the record of appeal).
It should be noted that the trial court immediately proceeded with the trial by hearing and taking the addresses of counsel – Mr. Ojo for the accused and Mr. Ologun for the prosecution, respectively.
The law is well settled that a charge can be validly amended even after final addresses of counsel. See DOMINIC PRINCENT & ANOR. V. THE STATE (2002) 18 NWLR (Pt. 798) 49 at 67-68. In the instant case, the alteration to the information was effected even before the final addresses of counsel.
From what transpired in the trial court, it is obvious, and there is no dispute on it, that after the amendment of the information, the plea of the accused/appellant was not retaken. The question is whether the failure to take a fresh plea after the amendment of the information would nullify the trial, conviction and sentence of the appellant by the court below?
Sections 163 and 164 (1) of the Criminal Procedure Law of Ondo State prescribe the procedure to follow when an information or a charge is altered.
Those sections provide thus:
“163. Any court may alter or add to a charge at any time before judgment is given or verdict returned and every such alteration or addition shall be read and explained to the accused.
164 (1)-lf a new charge is amended or alteration made to the charge under the provisions of Section 162 or 163, the court shall forthwith call upon the accused to plead thereto and to state whether he is ready to be tried on such charge or altered charge”. (underlining mine).
The use of the word “shall” in sections 163 and 164 (1) of the Criminal Procedure Law places a mandatory burden on the court to invite an accused person to take his plea again, once a charge or an information is altered or amended. The magnitude or quantum of the amendment involved and the reasons for the amendment are irrelevant, state whether he is ready to be tried on such charge or altered charge”. (underlining mine).
The use of the word “shall” in sections 163 and 164 (1) of the Criminal Procedure Law places a mandatory burden on the court to invite an accused person to take his plea again, once a charge or an information is altered or amended. The magnitude or quantum of the amendment involved and the reasons for the amendment are irrelevant.
In the present case the learned trial Judge abandoned his statutory responsibility or duty and sought refuge in an avoidable opinion of learned counsel for the accused, and which opinion was volunteered at the prompting of the trial judge. With due respect, the learned trial Judge erroneously permitted herself to be persuaded by a legally erroneous opinion of the learned counsel for the accused/appellant that there was no need for the accused/appellant to take a fresh plea, after the amendment of the information, contrary to mandatory statutory provisions in that respect.
The law is settled that once information or a charge is altered or amended, the plea of the accused must be taken again. There are many decided cases on this issue. For example, in YOUNG UKAUWA UGURU v. THE STATE (2002) 9 NWLR (Pt .771) 90 at 103, para. D, the supreme court, per KALGO, J.S.C. while interpreting section 163 of the Criminal Procedure Law of Eastern Nigeria, 1963 which is in pari materia with section 163 of the Criminal Procedure Law of Ondo State, 1978, held as follows:
“This section empowers a court to alter, amend or add to any charge in any criminal case before it at any time before judgment is given in the case ….. but ….. that the amended charge be read out and explained to the accused.” (underlining mine)
In OKOSUN V. THE STATE (1988) 7 SCNJ 118, where a charge of robbery was amended during the trial and the trial continued without a fresh plea by the accused, the conviction and sentence of the accused was nullified by the Supreme Court. Similarly in OKEGBU V. THE STATE (3 FSC) 14, the Federal(sic).
In the present case, the trial court failed to read out and explain the amended information to the accused. It further failed to obtain a fresh plea from the accused because the counsel to the accused ‘consented’ that there was no need for the plea to be taken again. As stated earlier, the lower court was without power or jurisdiction to continue with the trial of the accused without a fresh plea from or by him, after the information was amended. The purported ‘consent’ or acquiescence by the counsel to the accused and the counsel for the State, respectively, would not confer competence on the trial court. See In re Aylmer, Ex parte Bischoffhiem (1887) L.J.Q.B.168, where Lord Esher, M.R., stated the principle as follows:
“Parties cannot by consent give to the Court a power which it would not have without it”.
In the instant case, the trial court was in serious error by failing to comply with some fundamental conditions for a valid trial, namely – failure to read out and explain the amended information to the accused/appellant and to take a fresh plea from him, after the amendment.
Without more, the trial, conviction and sentence of the appellant on an amended information without a fresh plea was fundamentally flawed, and, therefore, null and void.
The resolution of this fundamental issue, in my opinion, disposes of the entire appeal and I do not find it necessary to determine the other issues raised by the appellant.
In conclusion, I allow the appeal on the ground that the trial and conviction by the trial court was null and void for failure to comply with a very fundamental jurisdictional requirement or condition, as hereinbefore adumbrated.
Consequently, I make the following orders:-
1. The judgment of the trial court delivered on the 10th day of December, 2007 is hereby set aside.
2. The trial, conviction and sentencing of the accused/appellant are hereby nullified.
3. There shall be a retrial of the appellant by another Judge of the High Court of Ondo State.
NWALI SYLVESTER NGWUTA, J.C.A.: I had the privilege of reading in draft the lead Judgment of my learned brother Adumein J.C.A.
Issue 4 in the appellant’s brief of argument is a threshold issue and it was rightly disposed of as such in the lead Judgment. However I wish to add a few words by way of emphasis, even at the risk of repeating what has already been dealt with.
In law a valid arraignment consists of the following elements which much co-exist.
(1) The accused must be present and unfettered before the trial Court.
(2) The charge must be read and explained to him in the language he understands to the satisfaction of the Court by the registrar of the Court.
(3) The accused shall be called upon to plead and
(4) His plea shall be instantly recorded by the Court.
Failure to comply with any of the four conditions will render the subsequent trial a nullity. See Solola v. State (2005)11 NWLR (Pt.937) 460 SC; Lufadeju v. Johnson (2007)8 NWLR (Pt.1037)538 SC; Amala v. State (PW.4) 12 NWLR (Pt.888) 520 SC.
The mandatory nature of the above requirements of a valid arraignment is evident from S.36 (6)(a) of the Constitution of The Federal Republic of Nigeria (1999). Non-compliance with any of the requirements will vitiate the trial and render it a nullity. See Dibe v. State (2007) 9 NWLR (Pt.1038) 30 SC.
It is trite law that where there is an amendment to a charge the requirement for a valid arraignment must be complied with. See Attah v. State (1993)7 NWLR (Pt.305) 257SC wherein the apex court held “It is settled law that where a charge of a single count is altered or amended, it is mandatory for the Court to take a fresh plea of the accused and it is imperative on the accused to plead to the amended charge. This procedure is fundamental and failure to comply with it renders the conviction based on the amended count invalid”.
The brief exchange between the lower court and learned Counsel for accused before that Court borders on dereliction of duty by the Court and learned Counsel, including learned counsel for the prosecution who should have stated the correct position with the regard to amendment of a charge.
Before plea is taken on a charge or an amended charge the accused has not joined issue with the state, as the accuser and ipso facto the court has no case to try. The criminal Procedure Law of Ondo State S.164 does not draw a distinction between amendment relating substance and one that relates to form as wrongly implied by learned counsel for the accused in giving the advice solicited by the learned trial Judge who ought to have relied on the Criminal Procedure Law instead of seeking counsel’s advice. A lawyer is a minister in the sacred temple of Justice and whether his opinion is solicited or not learned counsel for the state who introduced the amendment should have intervened to save the appellant and the state the burden of a new trial.
For the above and the fuller reasons in the lead Judgment, I also allow the appeal and endorse the consequential orders.
CHINWE E. IYIZOBA, J.C.A.: I have read before now, the lead judgment delivered by my learned brother, Adumein, J.C.A. and I agree with the reasoning and conclusions reached in the judgment.
The failure of the trial judge to take the plea of the appellant after the amendment of the 2nd count in the information is a grave error that is bound to render the conviction on that count a nullity. It was unfortunate that the learned trial judge abdicated his responsibility by asking the defence counsel if he thought a fresh plea should be taken because of the amendment. The defence counsel was of course wrong when he answered that it was unnecessary because the amendment did not change the character of the charge. If counsel had adverted his mind to Section 164(1) of the Criminal Procedure Law (Cap 31) laws of Ondo State, 1978 and the numerous authorities on the point referred to in the lead judgment, his answer would have been different. I note that count 1 of conspiracy in the information was not amended and ordinarily should not have been affected by the error of not taking fresh plea on the amended second count. See Attah v. State (1993) 7 NWLR (Pt.305) 257 @ 275 per Mohammed J.S.C:
“If a charge contains several counts and, after an amendment, the trial court fails to permit the accused to enter a fresh plea to the counts which have been altered or to new counts which have been added to the charge, the conviction against the unamended counts may not necessarily be quashed. In such a situation the nullity decision will affect only the new and altered counts. The earlier plea entered to the counts which were not amended is still valid.”
But in the judgment of the lower court, the conspiracy count was not addressed separately so the conviction thereof is apparently based on or inferred from the conviction for the substantive offence. The law is that where the prosecution did not lead evidence on conspiracy but relies on the commission of the substantive offence to infer conspiracy, the conviction for the conspiracy charge will fail if the conviction for the substantive offence is set aside on appeal. Njovens v. State (1973) 5 SC 17; Usufu v. State [2007] 1 NWLR (Pt.1020) 94 @ 124-125. It is consequently advisable for the prosecution in cases such as this, to lead evidence of conspiracy separately so that if a conviction and sentence is secured in respect of that count, it could be saved in the event that the substantive charge suffers the same fate as the instant appeal.
I also allow this appeal. I abide by the orders made by my learned brother Adumein JCA in his leading judgment.
Appearances
AKINFEMI M. OWOYEMI, ESQ.For Appellant
AND
MRS. A. O. ADEYEMI-TUKI, ESQ.For Respondent
