AMOS BUDE v. THE STATE (2013)

AMOS BUDE v. THE STATE

(2013)LCN/6084(CA)

In The Court of Appeal of Nigeria

On Thursday, the 28th day of March, 2013

CA/K/251/C/2011

RATIO

PRACTICE AND PROCEDURE: THE POSITION OF THE LAW WHERE THERE IS AN AMENDMENT OF CHARGE

In the case of Ogudo vs. the State (2011) 18 NWLR part 1278 page 1; the Supreme Court held that the proper procedure to take when a charge is amended is for the Court to read and explain to the accused every alteration or addition to the charge and to call upon the accused to make a fresh plea and to say whether he was ready to be tried on the amended charge and/or to recall all witnesses who may have given evidence and to ask the prosecution and the accused if they wish to examine or cross-examine the witnesses. Then, in Adejobi & anor vs. The State (2011) 12 NWLR Part 1261 page 347 the Supreme Court when considering Section 164 of the Criminal Procedure Act that is in pari materia with Section 208 of the Criminal Procedure Code Act, held that it is mandatory that once the charge is amended, the accused persons must be called upon to plead to the charge as amended. Failure to call on the accused persons to plead to the new charge renders the whole proceedings, a nullity. Further, Adekeye, J.S.C., opined that section 208(1) of the Criminal Procedure Code gives the Court the discretion to alter, and/or add a new charge at any time before the judgment is pronounced. She stated that the Court is not limited to the facts as alleged in the information. However, the Court is required to read and explain the new charge to the accused and record a fresh plea for the accused. Per. THERESA NGOLIKA ORJI-ABADUA, J.C.A.

PRACTICE AND PROCEDURE: WHETHER THE ACCUSED PERSON NOT PLEADING TO AN AMENDED CHARGE WILL NULLIFY A TRIAL

THE PROCEDURE TO BE ADOPTED AFTER A CHARGED IS AMENDED AND THE EFFECT OF FAILURE TO CALL AN ACCUSED PERSON TO PLEAD TO AN AMENDED CHARGE.

It has long been entrenched in our statutes on criminal procedure and the decided cases of our apex Court, that filing an amended charge is equivalent to filing a fresh charge and in that regard fresh plea must be taken. The accused must be called upon by the trial Court to plead to the amended charge which must be read over and explained to him. He must not be left in the dark as to the new charges or offences he is standing trial for so as to know whether to plead guilty to the same or not. Even though an accused is represented by Counsel who must have had prior knowledge of particulars of the amendment the prosecution had intended to introduce, he still is entitled in law to have the amended charge read out to him in open Court to ascertain his reaction or mindset on the new issues or particulars introduced in the amended charge. It must be stated that the law on the procedure to be adopted after a charged is amended and the effect of failure to call an accused person to plead to an amended charge is very clear. Per. THERESA NGOLIKA ORJI-ABADUA, J.C.A.

PRACTICE AND PROCEDURE: APPROPRIATE ORDER TO MAKE WHEN A TRIAL IS HELD TO BE A NULLITY.

However, I must recognize that different views have been expressed as to the appropriate order to make when a trial is held to be a nullity. See the cases of Rufai vs. State (2001) 13 NWLR Part 737 page 718; Tobby vs. The State (2000) 10 NWLR Part 720 page 23, Umaru vs. The State (2009) 8 NWLR Part 1142 page 134, per Musdapher, J.S.C., (as he then was) and the recent decision of the Supreme Court in Abudullahi Mohammed vs. The State (2013) LPELR-SC. 389/2010. In the recent authority, the apex Court reiterated the principle in Abodundu & ors vs. The Queen (1959) 1 N.S.C.C. 56 at 50, per Musdapher, J.S.C. (as he then was) thus: “We are the opinion that, before deciding to order a retrial, this Court must be satisfied – (a) that there has been an error in law (including the observance of the law of evidence) or an irregularity in Procedure of such a character that on the one hand trial was not rendered a nullity and on the other hand this Court is unable to say that there has been no miscarriage of justice, and to invoke the Proviso to section 11(1) of Ordinance; (b) that, leaving aside the error or irregularity, the evidence taken as a whole discloses a substantial case against the Appellant (c) that there are no such special circumstances as would render it oppressive to put the Appellant on trial a second time; (d) that the offence or offences of which the Appellant was convicted or the consequences to the Appellant or any other of the conviction or acquittal of the Appellant, are not merely trivial; and (e) that to refuse an order for a retrial would occasion a greater miscarriage of justice that to grant it.” These principles were further reaffirmed by this Court in Adeyo vs. The State (1999) 5 NWLR Part 6055 page 74 at 88.” In Rufai vs. State (supra), the Supreme Court, per Wali, J.S.C., recognized that the plea of the Appellant purportedly taken was in contravention of Section 215 of the Criminal Proceeding Law, Oyo State and Section 33(6) (a) of the 1979 Constitution and the trial was null and void, and then ordered a retrial. It was opined that: “Since the purported trial of the Appellant has been declared a nullity, then what is the proper order to make in the circumstance, taking into consideration the nature of the evidence involved, the gravity of the offence committed and the need to do justice to both sides. Guided by the above facts and the principle laid down by this Court in Abodundu & 4 Ors vs. Queen (1959) 4 FSC 7O; (1989) SCNLR 162 and elaborated upon in Kajubo vs. The State (supra). Per. THERESA NGOLIKA ORJI-ABADUA, J.C.A.

ON THE EFFECT OF THE NULLITY OF A DECISION OR AN ACT

When a decision or an act is regarded as a nullity, it means it has no legal force or is no longer valid. It is absolute and not a relative nullity. It is, therefore, unfathomable how the record of proceedings of a trial that has been declared a nullity could be relied upon to assess the cogency of the evidence produced thereat. Per. THERESA NGOLIKA ORJI-ABADUA, J.C.A.

JUSTICES

DALHATU ADAMU Justice of The Court of Appeal of Nigeria

THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

Between

AMOS BUDE Appellant(s)

AND

THE STATE Respondent(s)

THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering The Leading Judgment): The record before this Court portrays that as a result of the armed robbery incident that allegedly occurred at the premises of Kaduna South Local Government Education Board, Kakuri, Kaduna on the 12th December, 2005 an initial Criminal Charge Sheet dated 2nd August, 2006, was filed against the Appellant and four other accused persons, namely; Divine Ebukan alias One Hand, (1st Accused); Moshood Sanusi alias Authentic (3rd Accused), Chidiebere Charles Iwuchukwu (4th Accused) and Dagora Peter (5th Accused). The Appellant was the 2nd Accused in the said Charge. The said initial charge sheet contained three counts and it reads thus:
“COUNT ONE:
That you, DEVINE EBUKUM, AMOS BUDE, MOSHOOD SANUSI, CHIDEBERE CHARLES IWUCHUKU and DOGARA PETER on or about the 12th day of December 2005 at Nassarawa village Kaduna, conspired to rob at gunpoint, the premises of Kaduna South Local Government education board Kakuri, Kaduna and that same act was done in pursuance of the agreement and that you thereby committed an offence punishable under section 6(b) of the Robbery and Fire Arms (Special Provisions) Act Cap R11 Laws of the Federation of Nigeria 2004.
“COUNT TWO:
That you, DEVINE EBUKUM and AMOS BUDE on or about the 12th day of December 2005 at the premises of Kaduna South Local Education Board Kakuri Kaduna while armed with guns and other dangerous weapons, forcefully entered the office of the Head of Department Finance, and robbed the occupants of the room of the sum of twelve Million Naira, thereby committing an offence punishable under Section 1(2)(a) of the Robbery and Fire Arms Special Provisions Act Cap R11, Laws of the Federation of Nigeria 2004.
“COUNT THREE:
That you, MOSHOOD SANUSI, CHIDEBERE CHARLES IWUCHUKU, on or about the 12th day of December 2005 at Unguwan Muazu Kaduna, dishonestly received some money from DEVINE EBUKUM and AMOS BUDE knowing or having reason to believe the same to be stolen property and thereby committed an offence punishable Under Section 5 of the Robbery and Fire Arms (Special Provisions) Act Cap R11, Laws of the Federation of Nigeria 2004.”
The record of this appeal, at page 35, indicates that only two count Charge was read out to the 2nd and 3rd accused persons respectively on 14/10/06 and to which they pleaded not guilty. It was adjourned to 4/11/06 for plea of the 4th accused. The trial of the Appellant and the 3rd and 4th accused persons under the first charge commenced on 23/1/07. As at 19/2/07, about four witnesses had been presented by the prosecution. The record of this appeal further shows that on 28/2/2007, the Respondent filed a Motion on Notice dated the same day praying for leave of the Lower Court to amend the said Charge. A document titled “Notice of Amendment of Charge” dated 22/2/2007 was attached to the affidavit in support of the said Motion as “Exhibit A”. The said Motion on Notice was moved on 6/3/2007 by the Respondent’s Counsel and the same was granted as prayed. The amendment was allowed and the trial Court deemed the amended charge as duly filed and served. The amended charge reads as follows:
“COUNT ONE:
That you, AMOS BUDE (M), MOSHOOD SANUSI(M), CHARLES CHIDI IWUCHUKU with (M) DIVINE EBUKAM(M) (Deceased) and DOGARA PETER(m) (At Large) on or about the 12th day of December 2005 at Nassarawa Village Kaduna, conspired to rob at gun point, the premises of Kaduna South Local Government Education Board, Kakuri, Kaduna and that same act was done in pursuance of the “agreement and that you thereby committed an offence, punishable under Section 6(b) of the Robbery and Firearms (Special Provision) Act Cap R II Law of the federation of Nigeria 2004.
“COUNT TWO:
That you, AMOS BUDE(M), DIVINE EBUKAM(M) (Deceased) and PRINCE OBI alias THANKGOD on about the 12th day December 2OO5 at the premises of Kaduna South Local Education Board Kakuri, Kaduna, while armed with guns and other dangerous weapons, forcefully entered the office of the Head of Department Finance, and robbed the occupants of the said office of the sum of Twelve Million Naira, thereby therefore an offence ,punishable under Section 1(2)(a) of the Robbery and Fire Arms (Special Provisions) Act, Cap RII, Laws of the Federation of Nigeria 2004.
“COUNT THREE:
That you, MOSHOOD SANUSI (M), CHARLES CHIDI IWUCHUKWU(M), on or about 12th day of December 2005 at Unguwan Muazu Kaduna, dishonestly received some money from Divine Ebukan (m) (Deceased) and Amos Bude (m) knowing or having reason to believe the same Robbed Money and thereby committed an offence punishable under Section 5 of the Robbery and Fire Arms (Special Provisions) Act Cap RII, Laws of the Federation of Nigeria 2004.”
The record further depicts that immediately after grant of the application for amendment of the charge, the Prosecution informed the trial Court that it had two witnesses for continuation of hearing. It is, also, shown on the record, that no fresh plea to the amended charge was taken at that stage. The learned Prosecution Counsel consequently called the 5th Prosecution witness. The trial continued with the Prosecution calling six witnesses altogether. However, at the stage of tendering the alleged confessional statement of the accused, an objection was raised and trial within a trial was conducted by the trial Court. Eventually, the Appellant’s Statement to the Police was admitted as Exhibit A. It is instructive to note that the Appellant who was the 2nd Accused in the former charge became the 1st Accused in the Amended Charge. Whereas there were five accused persons in the former charge, the Amended Charge had only three accused persons. Equally, an amendment was made to the spelling of the name of the former 1st accused person and the middle name of the former 4th Accused person i.e., from ‘Chidiebere to ‘Chidi’. The Defence called two witnesses, and at the end of the trial, and, addresses of respective Counsel for the parties, the Appellant was found guilty as charged. He was convicted accordingly, and was sentenced to death by hanging until he is dead. The Appellant was obviously distraught by this pronouncement that he lodged an appeal against the same by a Notice of Appeal dated the 8th August, 2011. His Notice of Appeal was hinged on three grounds of appeal.
Following compliance with the Rules of this Court, the parties via their Counsel filed their respective Briefs of Argument. In the Appellant’s Brief of Argument settled by his Counsel, Mrs Abimbola Akeredolu, two issues were raised for the determination of this court thus:
“1. Whether the proceedings of the Court below are a nullity by reason of the failure of the Appellant to make a fresh plea to the Amended Charge (Ground 1).
2. Whether the prosecution adduced such evidence at the Court below as to ground A conviction of the Appellant for the offences of criminal conspiracy and armed robbery (Ground 2).”
The Respondent adopted for its part, the issues as were formulated by the Appellant.
It is the contention of Learned Counsel for the Appellant that the provisions of section 208 (1) and (2) of the Criminal Procedure Code which stated that every alteration or addition made to a charge or any new charge framed shall be read to the accused and his plea thereto shall be taken. She referred to the definitions of the words, “alter”, “add” and “charge” in the New Webster’s Dictionary of the English language (international Edition) page 27 and the case of Ajakaiye vs. FRN (2010) 11 NWLR Part 1206 page 500. She, further, relied on the cases of Agip (Nig) Ltd vs. Agip Petroli Int’l (2010) 5 NWLR part 1187 page 348, per Adekeye, J.S.C.; Nigeria LNG Ltd vs. African Development Insurance Co. Ltd (1995) 8 NWLR part 416 page 677 and Col Kalile (RTD.) vs. Alhaji Aliero (1999) 4 NWLR part 597 page 139; regarding the effect of the use of the word “shall” in a statute, and, then submitted that the failure of the trial Court to comply with the mandatory provisions of Section 208 of the Criminal Procedure Code rendered the entire proceedings and the conviction of the Appellant a nullity, which she stated is defined as a void act, or an act which has no legal consequence. Learned Counsel, also referenced the cases of Adejobi vs. State (2011) 12 NWLR part 1261 page 347; Amaechi vs. INEC (2008) ALL FWLR Part 407 page 1; Okafor vs. Attorney General, Anambra state (1991) 6 NWLR part 200 page 659; Ishola vs. Ajiboye (1998) 1 NWIR Part 532 page 71 and Oduko vs. Government of Ebonyi State (2004) (sic) 13 NWLR part 891 page 487; on the proposition of the law and then urged that issue No.1 be resolved in favour of the Appellant.

Turning to issue No. 2, learned Counsel referred to the testimony of P.W.1 at pages 40-42 of the record of appeal, the case of C & C Construction Co. Ltd vs. Okhai (2003) 18 NWLR Part 851 page 79; the testimonies of P.W.2, Saadatu Nazifi at page 42-44, P.W.3, Peter .Y. Bako at pages 45 to 47, P.W.4, Mrs. Hajara .A. Vivian at pages 47 – 48, P.W.5, Sgt. Patrick Odoh at pages 49 – 50 and 81 – 83 of the record of appeal, and the cases of Teper vs. R (1952) AC 480; Gabriel vs. State (2010) 5 NWLR Part 1190 page 280 at 323; Utteh vs. State (1992) 2 NWLR Part 223 page 257; and Omonga vs. state (2005) 14 NWLR part 1000 page 532 and argued that no cases of conspiracy and armed robbery were establish against the Appellant. She further made reference to Omotola vs. State (2009) 7 NWIR Part 1139 page 151 and 148 respectively; Yakubu vs. FRN (2009) 14 NWLR part 1160 page 151; Bozin vs. State (19851 2 NWIR Part 8; Nwachukwu vs. State (1985) 3 NWLR Part 11 page 218 and Suberu vs. State (2010) 8 NWLR Part 1197 page 585; and restated the ingredients of the offences of conspiracy and armed robbery, and, submitted that the trial Court was wrong to have found the Appellant guilty of conspiracy when it found that the Appellant was not in agreement with anybody to commit a crime.
Learned Counsel referred to the assertion of the Appellant that he made his Statement in Hausa language and the claim of P.W.5 under cross-examination that the Appellant offered his Statement in English and argued that the conflict in the language in which the Appellant’s statement was offered was not resolved by the trial Court. She highlighted that the Appellant’s evidence before the trial Court was offered in Hausa language, and, then submitted that any doubt in any criminal case must be resolved in favour of the accused. She referred to Osuohia vs. State (2010) 15 NWLR (Part 1219) page 364 and emphasised that the trial Court has a duty to properly evaluate the evidence presented by the parties before arriving at its decision. Learned Counsel further turned to the evidence in-chief of P.W.1 – P.W.4 and stressed that none of them stated that the Appellant took part in the robbery at the local Government Headquarters, though they confirmed knowing him. She stated that it was only during their evidence under cross-examination that they said the Appellant participated in the robbery. Learned Counsel contended that the effect of the failure of P.W.1- P.W.4 to state in their respective evidence in-chief that the Appellant took part in the armed robbery incident is that the Respondent failed wholly to prove its case against the Appellant and a fortiori beyond reasonable doubt notwithstanding the admissibility of Exhibit B, F1-28 and G. She contended that there was no proof any of the dangerous weapons were used by the Appellant at the alleged robbery incident for which he was charged and convicted. She submitted that the weapons were dumped on the trial Court without connecting them to the Appellant via any evidence. Learned Counsel concluded that no evidence was adduced before the trial Court to ground the conviction of the Appellant. She then urged this Court to allow the appeal and set aside the conviction of the Appellant.
Learned Counsel for the Respondent, A. T. Kehinde Esq; with regard to issue No.1, made reference to Section 187(1) of the Criminal procedure Code which stipulated how a criminal proceeding must be commenced so as to ensure that an accused person knows why he is before the Court for trial. He argued that the charge was amended merely to bring the same in consonance with the names of the accused present in Court at that time, and without any injustice being occasioned to the Appellant. He referred to page 49 of the record to buttress this point. Learned Counsel argued that the entire proceedings cannot be treated as a nullity as the amendment was done in consonance with the interest of the Appellant, and that the Appellant knew why he was in Court. He made reference to Section 382 of the Criminal Procedure Code and the cases of Afehe Humbe vs. The State (1974) 5 S.C at 27; and Idemudia vs. State (1999) 7 NWLR Part 510 at 222, which buttressed that where such error or omission or irregularity in complaint, summons, warrant, charge, public summons, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under criminal procedure code, do not occasion any miscarriage of justice, such proceedings, orders judgments remain valid. He submitted that the Appellant was represented by a Counsel who ought to have brought any omission that would have affected his client’s case to the notice of the trial Court. He, then, urged this Court to uphold the presumption of regularity at the trial Court as opined by Karlibi-Whyte, J.S.C. in Idemudia’s case (supra). He stressed that the Appellant was neither prejudiced by the said amendment nor did he suffer any miscarriage of justice. He, therefore, urged this Court to resolve issue No.1 in favour of the Respondent.
Arguing in respect of issue No.2, learned Counsel submitted that to secure conviction for the offences of criminal conspiracy and armed robbery, the Prosecution must prove the respective ingredients of the offences as demonstrated in the cases of Tanko vs. State (2008) 7 NWLR Part 1114 page 591; Suberu vs. state (2010) 3 S.C Part 11 page 136.
Learned Counsel made reference to the evidence of P.W.1 at page 41 of the record on how the 2nd accused was wearing black trouser and boots, and how he saw his face on that fateful day. It was the first day he saw him. The 2nd accused was not wearing mask, and how he could identify him.
Learned Counsel further drew the attention of this Court to the testimonies of P.W.2 – P.W.6 and submitted that the evidence of all the prosecution witnesses established beyond reasonable doubt the facts that there were armed robbery and criminal conspiracy to rob, that the Appellant participated in the said robbery,and,that he was armed with guns.
Counsel then relied on the cases of Shurumo vs. State (2010) 12 S.C Part 1 page 88; Odili vs. State (1977) 4 S.C. 1; Emeka vs. State (2001) 6 S.C at 227; Otti vs. State (1991) 8 NWLR part 2072 page 103; Emeka vs. State (supra); and Jua vs. State (2010) 1-2 S.C at 96, and contended that the prosecution is not duty bound to call every eye witness to testify, that a single witness who gives cogent eye witness account of the incident suffices. He further drew the attention of this Court to pages 40-48 of the record where the testimonies of four eye witnesses to the crime were recorded. He also referred this Court to the contents Exhibit A, i.e., the Appellant’s confessional statement which he argued was corrobated by the independent evidence of the Prosecution witnesses.
He stated that by considering the Exhibit along with the evidence adduced at the trial Court, there seems to be consistency in the evidence presented by the Court. He argued that the evidence of P.W.5 was instructive and was never a hearsay. He made reference to the trial within trial held by the trial Court which resulted to admissibility of the confessional statement of the Appellant as Exhibit A, and, strongly submitted that a free and voluntary confessional statement by an accused is sufficient to ground a conviction. Counsel urged this Court to resolve issue No. 2 in favour of the Respondent and dismiss the appeal, and, uphold the conviction of the Appellant by the trial Court.
I will now consider the first issue framed by the Appellant for determination, that it is to say: ‘whether the proceedings of the Court below are a nullity by reason of the failure of the Appellant to make a fresh plea to the Amended Charge? It is pertinent to note that section 208 of the Criminal Procedure Code did not speak of major or minor alteration or formal or substantial alteration. The operative words or verbs in subsection (1) of Section 208 are; “alter,” or “add” then in subsection (2) it used the noun “alteration” or “addition”.
The Oxford Advanced Learner’s Dictionary, 8th Edition defined the word “alter” to include; “to make something different or “to make changes to something” then “alteration” means “a change to something that makes it different,” that charge or alteration could be major or minor.” Section 208 sub-sections (1) and (2) merely used the words “alter” or “add”, “alteration” or “addition”.
The words were never qualified or limited or restricted so as to say whether the alteration is formal or substantial, major or minor. What this connotes, is that the moment there is any form of alteration or addition to any charge or there is a new charge, the altered charge or a new charge must be read to the accused and his plea thereto shall be taken. The word amendment is equally defined in the Black’s law Dictionary as ‘a change made by addition, deletion, or correction.’

Further, in Yusuf vs. state (2011)18 NWLR part 1279 page 853, the apex Court stated that during trial, if there is cause to amend the charge, the accused person must be called upon once again to enter a plea to the amended charge. Where the accused person did not plead to an amended charge, the trial is a nullity. It is, however, instructive to note the decision of the Supreme in Attah vs. The State (1993) 7 NWLR part 305 page 257 where it held that if a charge contains several counts and, after an amendment, the trial Court fails to call 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. The conviction against the unamended counts may however be nullified on appeal if the Court became satisfied that the evidence adduced in support of the amended counts, whose conviction had been quashed for non-compliance with Section 164 (1) Criminal Procedure Law, influenced the findings on the unamended counts. This case was referred to and relied on by the Supreme Court in Adejobi vs. The State (supra).
It is the contention of the Respondent in this appeal that the amendment was carried out to bring the charges in consonance with the names of the accused present in Court as at that time and it was made without any injustice done to the Appellant. The question now is, ‘whether the amendment to the numerical strength of the accused persons , alteration in the middle name of the new 2nd Accused person and the spelling of the name of the former 1st accused and changing the Appellant’s numbering from No.2 to No.1 on the amended charge, required fresh plea to be taken? It is clear that, all the three counts in the original charge were amended. In the amended charge the Appellant was charged as the principal. All the three counts were amended to reflect the new status of the Appellant as the 1st accused, the former 1st accused was stated to be deceased, and the name of one Prince Obi alias ThankGod was then mentioned or added in count No.2.
The decision in Attah vs. The State (supra) simply, stated that where there is no atom of alteration or addition to any count in a charge, even if that unaltered or unamended was not read to the accused for his fresh plea thereto, it would not nullify proceedings in respect of the count that was not altered or amended provided the findings in the altered count did not influence that in the unaltered one, but where there is an amendment to any count, that count must be read out to the accused to take his fresh plea thereto.
As I earlier observed, in the present appeal, there were alterations to the three counts. In the Amended charge, particularly in counts One and Two, the Appellant was charged as the Principal actor and his number was altered to No. L. In the three Counts, one Divine Ebukam was described as being ‘deceased,’ while one Dogara Peter mentioned in Count No. l was stated to be at large. Then in Count No.2, the name of one ‘Prince Obi alias ThankGod was added. Equally the middle name of the 3’d accused in the amended charge was amend to read ‘Chidi’ instead of ‘Chidiebere’.
I must say that I find it difficult to accede to the Respondent’s argument because, in my opinion, the reduction in the number of the accused persons from 5 to 3, the renumbering of the Appellant as the 1st Accused in the Amended charge, the amendment in the middle name of the 3rd accused person, and, the additional name of Prince Obi alias ThankGod to Count No. 2 amount to alteration and addition to the charge. As I earlier remarked, the section did not use the words “formal” or “substantial” or “minor” or “major”. It did not specify that the amended charge shall be read to the accused for fresh plea to be taken
only when there is a substantial or major alteration in the particulars of the offence itself. It simply said ‘alteration’ or ‘addition,’ meaning that the moment the charge is altered or amended in any form, it must be read out to the accused for fresh plea to be taken.
In the instant appeal, it is substantially shown in the record that the amended charge or counts was/were never read to the Appellant for his fresh plea thereto. His fresh plea to the amended charge was not taken by the trial Court.
It has long been entrenched in our statutes on criminal procedure and the decided cases of our apex Court, that filing an amended charge is equivalent to filing a fresh charge and in that regard fresh plea must be taken. The accused must be called upon by the trial Court to plead to the amended charge which must be read over and explained to him. He must not be left in the dark as to the new charges or offences he is standing trial for so as to know whether to plead guilty to the same or not. Even though an accused is represented by Counsel who must have had prior knowledge of particulars of the amendment the prosecution had intended to introduce, he still is entitled in law to have the amended charge read out to him in open Court to ascertain his reaction or mindset on the new issues or particulars introduced in the amended charge. It must be stated that the law on the procedure to be adopted after a charged is amended and the effect of failure to call an accused person to plead to an amended charge is very clear. As I earlier remarked, there is no line at which it was indicated that a fresh plea of the Appellant was taken by the trial Court on the amended charge which was deemed as duly filed and served on 6/3/2007. It would, therefore, amount to total disregard to the provisions of section 208(2) of the Criminal Procedure Code and the principle of stare decisis if consideration of issue No.2 is proceeded with. This point had eloquently been restated by the Supreme Court and this Court in innumerable number of cases, therefore, to decide otherwise, would be an affront to the law itself.
On this issue alone, which is indisputably fundamental, I find this appeal meritorious. Accordingly, this appeal is hereby allowed based on issue No.1 only, therefore, the conviction and sentence of the Appellant are hereby set aside for being a nullity.
However, I must recognize that different views have been expressed as to the appropriate order to make when a trial is held to be a nullity. See the cases of Rufai vs. State (2001) 13 NWLR Part 737 page 718; Tobby vs. The State (2000) 10 NWLR Part 720 page 23, Umaru vs. The State (2009) 8 NWLR Part 1142 page 134, per Musdapher, J.S.C., (as he then was) and the recent decision of the Supreme Court in Abudullahi Mohammed vs. The State (2013) LPELR-SC. 389/2010. In the recent authority, the apex Court reiterated the principle in Abodundu & ors vs. The Queen (1959) 1 N.S.C.C. 56 at 50, per Musdapher, J.S.C. (as he then was) thus:
“We are the opinion that, before deciding to order a retrial, this Court must be satisfied – (a) that there has been an error in law (including the observance of the law of evidence) or an irregularity in Procedure of such a character that on the one hand trial was not rendered a nullity and on the other hand this Court is unable to say that there has been no miscarriage of justice, and to invoke the Proviso to section 11(1) of Ordiance; (b) that, leaving aside the error or irregularity, the evidence taken as a whole discloses a substantial case against the Appellant (c) that there are no such special circumstances as would render it oppressive to put the Appellant on trial a second time; (d) that the offence or offences of which the Appellant was convicted or the consequences to the Appellant or any other of the conviction or acquittal of the Appellant, are not merely trivial; and (e) that to refuse an order for a retrial would occasion a greater miscarriage of justice that to grant it.” These principles were further reaffirmed by this Court in Adeyo vs. The State (1999) 5 NWLR Part 6055 page 74 at 88.”
In Rufai vs. State (supra), the Supreme Court, per Wali, J.S.C., recognised that the plea of the Appellant purportedly taken was in contravention of Section 215 of the Criminal Proceeding Law, Oyo State and Section 33(6) (a) of the 1979 Constitution and the trial was null and void, and then ordered a retrial. It was opined that:
“Since the purported trial of the Appellant has been declared a nullity, then what is the proper order to make in the circumstance, taking into consideration the nature of the evidence involved, the gravity of the offence committed and the need to do justice to both sides. Guided by the above facts and the principle laid down by this Court in Abodundu & 4 Ors vs. Queen (1959) 4 FSC 7O; (1989) SCNLR 162 and elaborated upon in Kajubo vs. The State (supra) I am inclined to make an order for a fresh trial of the appellant, by another judge of the High Court as the present trial was voided due to non-compliance with the mandatory provisions of Section 215 of Criminal Procedure Law Oyo State and section 33(6) (a) of the 1979 Constitution, which is a pure mistake of law.
I hereby make that order.”
It is my considered view that if a trial or the entire proceeding is declared a nullity, it is an absolute nullity and legally void. It, therefore, means that the trial never existed nor took place and cannot be taken cognisance of. It is absolutely nothing, and cannot be founded upon. Also, the evidence proffered during the void or null proceeding ought not to be assessed or weighed to ascertain if it is cogent or sufficient enough for the accused to face the real trial. When a decision or an act is regarded as a nullity, it means it has no legal force or is no longer valid. It is absolute and not a relative nullity. It is, therefore, unfathomable how the record of proceedings of a trial that has been declared a nullity could be relied upon to assess the cogency of the evidence produced thereat. In any case, the prosecution presented six witnesses, some of whom gave eyewitness accounts and revealing evidence against the Appellant. I must observe that care has to be taken to avoid letting off harmful, unrepentant and dangerous offenders who may turn round to endanger humanity.
As I expressed in the unreported judgment of this Court delivered on the 20th December, 2012 in Appeal No.CA/K/18/C/2010 -Zakari Ya’u vs. The State;
“If a person sets out with the intention to murder his fellow being or rob him of his property with violence, he should, equally, be prepared to face the wrath of the law no matter how long it takes for him to be tried.”
Therefore, since the criminal charge against the Appellant is a very serious one, that is to say; armed robbery, that carries death sentence, and not an offence with two years or three years imprisonment or even life imprisonment, the proper order to be made hereat is for remittance of the said criminal charge to the Chief Judge of Kaduna State for reassignment to another Judge of the State High Court for retrial.
Accordingly, Criminal Charge No.KDH/KAD/82C/2006 is hereby sent back to the Kaduna State High Court for retrial before another Judge.

DALHATU ADAMU, J.C.A.: I have the privilege of reading the draft of the judgment of my learned brother Ngolika Orji-Abadua, JCA in this appeal. I am of the view that in both her reasoning and the conclusion she reached that the appeal be allowed. I declare the judgment of the Court below a nullity. I also endorse the order to remit the case back to the Chief Judge of Kaduna State for a retrial before another judge of coordinate jurisdiction.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading the lead judgment just delivered in this matter by my learned brother, Orii-Abadua JCA. His Lordship has painstakingly and admirably considered and resolved the issues in contention in this appeal. I agree with the reasoning and abide the conclusions reached therein. I have nothing more to add.

Appearances

Abimbola Akeredolu (Mrs); with Miss Monsurat AbdulrasheedFor Appellant

AND

A. T. Kehinde Esq; with B. O. Aminu Esq.For Respondent