ASABE ABDULLAHI V. THE STATE
(2012)LCN/5497(CA)
In The Court of Appeal of Nigeria
On Thursday, the 28th day of June, 2012
CA/J/223C/2005
RATIO
CRIMINAL LAW: REQUIREMENT FOR A VALID ARRAIGNMENT
Once there is an amendment to a charge, the requirement for a valid arraignment must be complied with a fresh. (Refer Nguru v. State (2002) 9 NWLR pt.771 pg.90 and Attah V. State (1993) 7 NWLR pt.305 Pg.257). PER M. B. DONGBAN-MENSEM, J.C.A.
JUSTICES:
MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria
ABUBAKAR ALKALI ABBA Justice of The Court of Appeal of Nigeria
Between
ASABE ABDULLAHI – Appellant(s)
AND
THE STATE – Respondent(s)
ABUBAKAR ALKALI ABBA, J.C.A. (Delivering the Leading Judgment): This is an appeal emanating from the Judgment of Justice T. Oluoti of the High Court of Justice Yola Judicial Division of Adamawa State, wherein the Appellant, Asabe Abdullahi was arraigned before that Court and charged with the offence of Culpable Homicide punishable with death contrary to Section 221 (b) of the Penal Code Law and punishable under same Section.
The Appellant was alleged to have caused the death of one Binta Isa (now deceased) by setting her dwelling house on fire while she was sleeping inside at night with the intention of causing her death.
The prosecution, in a bid to proof its case against the Accused, called 6 witnesses and tendered 5 five exhibits. The Appellant testified as the only witness for the defence.
The trial Court in its Judgment delivered on the 19th July, 2004 found the Appellant guilty as charged, convicted and sentenced her to death. Dissatisfied with the decision of the trial Court, the Appellant has approached this Court by way of appeal against the Judgment. She has total 7 grounds of appeal with 5 original grounds and 2 additional grounds filed after leave of this Honourable Court was granted on the 10th May, 2011.
ISSUES FOR DETERMINATION
Both the Appellant and Respondent have formulated 2 issues for determination thus:-
1. Was there enough evidence adduced by the prosecution upon which the Appellant could have been convicted for Culpable Homicide punishable with death?
2. Did the amendment of the particulars of the charge by the learned trial Judge in the course of his judgement not occasion a miscarriage of Justice thereby rendering the conviction and sentence of the Appellant a nullity?
Before reviewing the argument and the submissions by Appellant on the two issues for determination which each side relied; it is important to note that the appellant shifted or changed his prayer or relief sought in his reply brief.
In appellant brief of argument counsel urged that the conviction and sentence of death be set aside and Appellant be acquitted, and or alternative the trial be nullified and we order retrial. In the reply brief on points of Law appellant counsel after brilliant submission and well articulated legal arguments and legal authorities prayed as follows:
(1) This Honourable Court will be urge IN THE ALTERNATIVE TO THE ARGUMENT THAT THE JUDGEMENT OF THE LOWER COURT IS A NULLITY TO CONVICT THE APPELLANT OF A LESSER OFFENCE TO WIT:-
(a) culpable homicide not punishable with death under Section 227 (2) of the Penal Code or
(b) causing death with the intention to cause hurt only contrary to Section 225 of the Penal Code or
(c) Voluntarily causing grievous hurt as defined by Section 243 of the Panel Code or
(d) As a last resort to order a retrial.
This alternative prayer implies that appellant is abandoning the 1st issue on prove of guilt of committing culpable homicide punishable with death by appellant but that the culpable homicide which prosecution proved is the culpable homicide that is not punishable with death i.e that appellant is guilty under Section 227 (2) and is punishable under Section 227 (2) of the Penal Code or appellant is guilty under S.225 Penal Code or S.243 Penal Code and not guilty under Section 221 (b) of the same Code.
This alternative prayer appear to drop the 1st issue and shortens the submissions and brings us to consider the 2nd issue raised on whether the amendment of the charge in the course of the Judgment by the trial Judge renders the whole trial null and void; to warrant ordering of retrial of appellant.
The issue on substituting a conviction and sentence for a lesser offence to offence of culpable homicide punishable with death is not argued and submitted on by both the appellant and the Respondent. Appellant raised it only in his reply brief of arguments on point of Law raised by the respondent, suffice it to say that to substitute a lesser offence is within the power of this court as provided for in order 19 Rule 11 (1) (2) of Court of Appeal Rules 2011 which states thus:-
“Order 19 Rule 11-(1) The Court shall have power to give any Judgment or make any order that ought to have been made, and to make such further order as the case may require including any order as to costs.
(2) The powers contained in sub-rule (1) of this Rule may be exercised by the Court, notwithstanding that the Appellant may have asked that part only of a decision may be reversed or varied, and may also be exercised in favour of all or any of the Respondent or parties, although such Respondents or parties may not have appealed from or complained of the decision.” The whole order 19 is all on criminal appeals like in this criminal appeal before us.
The respondent brief of argument dated 10th April, 2012 and filed 11th April, 2012 is DEEMED properly filed and served on 14th May, 2012. The submissions are so detailed and excellent and answered each point argued or submitted in the Appellant brief of argument dated 9th June 2011 and filed on 14th June 2011 and is deemed properly filed and served on 14th May, 2012 exactly one year later.
The respondent powerful and persuasive submissions is replied by the appellant reply brief on points of Law with also powerful submissions and persuasive and binding authorities especially on ALTERNATIVE RELIEF PRAYER based AMENDMENT OF THE CHARGE and both counsel cited many cases and Sections of the Constitution and the criminal procedure code. This is in page 7 to page 13 of the Appellant reply brief of argument. This reply brief of appellant is dated 22nd May, 2012 and filed 23rd May, 2012 and Deemed 24/5/2012.
Both the appellant and Respondent agree that the trial Judge did not comply with the provision of Section 208 (2) of Criminal Procedure Code in that No fresh plea was taken. The amended new charge was not read and explained to accused. The trial Judge amended the charge in his Judgment and proceeded and delivered it without taking a new plea or explaining same.
At page 24 from lines 19 of the record of proceedings in his Judgment trial Judge said thus:-
“I think I should comment on the charge the learned senior state counsel charged the Accused under Section 221 (b) of the Penal Code viz the statement of offence. But in the particulars of the offence reference was made to intention of causing death, Intention belongs to Section 221 (a) of the Penal Code. This is a bad drafting of a charge. I shall take it that the Prosecutor intended to charge the Accused under Section 221 (a) of the Penal Code. This is a bad drafting of a charge. I shall take it that the Prosecutor intended to charge the Accused under Section 221 (b) of the Penal Code. I do not think the Accused or her counsel has been misled by this anomaly.”
The appellant and respondent though both agree that the trial Judge is wrong to have breached or fail to comply with Section 208 (2) of Criminal Procedure Code they are sharply divided on the effect of this non compliance. The appellant submitted that it is fundamental breach of procedure in a criminal trial and contended that where the court failed to comply with the provision of Section 208 (2) of Criminal Procedure (i.e No fresh plea after amendment of a charge) ANY CONVICTION based on the INVALID proceedings is NULLITY. The respondent however submitted that breach or non compliance with Section 208 (2) of Criminal Procedure Code is MINOR breach and ONLY visiate or nullify the trial if the Amendment caused miscarriage of Justice and mislead the accused appellant.
Appellant counsel to support his submission and argument that the non-compliance with Section 208 (2) of Criminal Procedure Code after amending a charge is FATAL to the trial and renders it a nullity CITED THE CASE of the Supreme Court in the case of NOSIRU ATTAH VS THE SIATE (1993) 9 SCNJ Part 1 PAGE 80 at PAGE 90 where it was held:-
‘The issue of taking a fresh plea after amendment of a charge is a fundamental procedure in a criminal trial”. It is furthermore our contention that where the Court had failed to comply with the provision of action 208 any conviction based on the invalid proceedings is fatal and renders the conviction a nullity. The Supreme Court in the case of NOSIRU ATTAH supra, in interpreting a similar provision to Section 208 of the Criminal Procedure Code held that “The expression “Shall” used therein is imperative and not merely directory or precatory'”
Appellant counsel submitted that the TRIAL JUDGE DID not read and explained to appellant the amended charge neither was her fresh plead taken. Neither were other requirements of the Criminal Procedure Code for instance Section 211 was complied with by the trial Judge and Appellant submitted this failure to comply with Section 208 (2) Criminal Procedure Code and other subsequent Sections has occasioned (GROSS miscarriage of Justice. The counsel to appellant Mrs. J. L. Usoroh Esq.; urge us to declare NULLITY the Judgment convicting the appellant and sentencing her to death AND AQUIT HER. Barr. Mrs. L. J. Usoroh who filed appellant brief did not ask for substituting lesser offence conviction but Chief L. D. Nzadon wrongly or rightly asked for substitution of lesser offence without giving ANY reason. Chief L. D. Nzadon rightly asked for RETRIAL order and not ACQUITTAL.
The respondent counsel Chief Muhammed Audu GANGS Deputy Director of Legal Drafting, Ministry of Justice, Adamawa State disagree with appellant that this non compliance with Section 208 (2) Criminal Procedure Code has occasion miscarriage of Justice and that it is not a fundamental breach and that it is not FATAL to the proceedings and does not render the Judgment a nullity.
Respondent counsel cited and relied on the provision of Section 382 of Criminal Procedure Code which states thus:-
“subject to the provisions hereinafter contained no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or review on account of any error, omission or irregularity in the complaint, summons, warrant, charge, public proceedings before or during trial or in any inquiry of other summons, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Criminal Procedure Code unless the Appeal Court or reviewing authority thinks that a failure of Justice has in fact been occasioned by such error, omission or irregularity.”
The Respondent counsel further submitted and said:-
“We submit that based on Section 382 of the Criminal Procedure Code error or irregularity in the charge cannot visiate the entire trial conducted in respect of the appellant. In fact under Section 227 (b) Penal Code the offence is well spell out as culpable homicide punishable with death. This is enough to give an accused person a fair idea of the offence he or she (Asabe in this appeal) is been charged with.”
The Respondent cited and relied on the explanatory note to Section 382 of the Criminal Procedure Code by Justice Jones and submitted at page 16 of Respondent brief thus:-
“The explanatory note to section 382 of the criminal procedure code states “in determining whether any error, omission or irregularity in any proceeding under this criminal procedure code has occasioned a failure of Justice, the court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. “The provision is also the same as the provision in Section 166 of the Criminal Procedure Law of Eastern Nigeria, 1963, that is applicable in Imo and Abia States “Any objection to a charge for any formal defect on the face thereof shall be taken immediately after the charge has been read over to the accused and not later.”
The respondent counsel submitted that the provision of Section 166 of the Criminal Procedure law Cap 31 Laws of Eastern Nigeria 1963 applicable in Imo and Abia States is on all fours with Section 382 of the Criminal procedure Code. The respondent cited the Supreme Court case of AGBO VS STATE (2006) 9 NWLR part 927 page 545 at page 553 ratio 12 where the Supreme Court interpreted Section 166 and by extension Section 382 of the Criminal Procedure Code on effect and treatment of error in stating offence or required particulars in charge (i.e defective charge and the Supreme Court HELD:-
“By virtue of Section 166 of the Criminal Procedure Laws of Eastern Nigeria 1963 applicable in Imo and Abia State No error in stating the offence or those particulars SHALL BE REGARDED AT ANY STATE OF THE CASE AS MATERIAL unless the Accused was infact misled by such ERROR or Omission” Respondent counsel submitted that in the instant Appeal; the appellant did not show that SHE WAS MISLED by the defect in stating the charge read to him at the trial. In the circumstances he urge the Court to discountenance this complain relating to the defect in the charge.
At page 16 of the respondent brief counsel submitted that in this appeal like in the AGBO’s the appellant failed or neglected to raise any objection to the charge when it was read and interpreted even though he was represented by counsel who infact did not raise any objection in his address before the trial High Court Judge and so the Supreme Court held in Agbo’s case that appellant cannot raise this objection at the Court of Appeal. With respect the facts in this appeal are different with the fats in Agbo’s case in this case amendment of the charge was made while writing the Judgment and the appellant had no opportunity to object to it even at the time of address by counsel.
Respondent also cited wrong and irrelevant and in applicable case of OKAROH VS STATE (1990) NWLR Part 125 Page 128 at 130 ration 4, I say it is not applicable to this instant case because Okaroh case the procedure said be defective Procedure was on tendering a statement as Exhibit A not on Procedure of amending a charge particulars
Summing up of all the submissions and Argument or issue 2 Respondent submitted that No miscarriage of Justice was occasioned by the trial Judge amending the particulars of the charge. Counsel for Respondent Barr. M. A. GANGS submitted rightly that appellant throughout her brief of argument (NOT INCLUDING HER REPLY brief on points of Law which was filed after this brief) appellant was not able to show this court how the amendment affected her negatively. We disagree with this submission which may be correct as at the time before reply brief on point of law by appellant was filed; effectively showing that the amendment of charge in the Judgment by trial Judge who did not take her fresh plea affected her seriously as it deprived her a fair hearing.
In his conclusion of this brilliant submissions Respondent counsel urge us to affirm the decision or Judgment of the trial Judge delivered on 19th July 2004 and dismiss this appeal for lack of merit.
I have already noted in this Judgment that Appellant counsel changed the prayers for acquittal of appellant to substitution prayers for LESSER offences under Section 255 Penal Code or Section 272 (2) of the penal Code or lesser offences under Section 243 of the Penal Code instead of under Section 22I (b) of the penal Code for which she was convicted. The respondent counsel did not have opportunity to say anything on this substitution prayer for lesser offence.
If finally in this Judgment we NULLIFY the Judgment conviction and sentence of appellant we can only order RETRIAL before another Judge as the issue of whether prosecution has proved his case beyond reasonable doubt become a matter of academic exercise or debate and no longer necessary. If the whole trial is declared a nullity substitution of conviction for lesser offence no longer arise or possible as there will be no conviction to be substituted. That is why I stated earlier in this Judgment that Chief L. D. Nzadon appear to have dropped the 1st issue on whether there was enough evidence to support the conviction of appellant under Section 221 (b) culpable homicide punishable with death by praying for its substitution it with lesser offence conviction not setting the Judgment aside completely.
In the reply brief Chief L. D. Nzadon distinguished AGBO’S case (supra). We agree with appellant counsel that this AGBO case is not applicable to this appeal as it is distinct and a different situation. In this appeal the mistake was corrected at the time of Judgment suo moto YET NO plea was taken after the correction or amendment of the charge particulars while in Agbo’s case (supra) the defective charge was irregularity, omission or error in the charge are not amended but that are minor errors nor fundamental and are “saved” by S.382 of the Criminal Procedure Code.
The appellant reply brief page 7 to 16 are clear and excellent clarification of the error or mistake of trial Judge and its consequence having regard to the provision of Section 208 (2) of the Criminal Procedure Code as both sides agree that this Section is not complied with by the trial Judge who omitted or neglected in advertently or by mistake to take FRESH PLEA.
Appellant counsel submitted and said:-
“We submit contrary to the Respondents argument that it is of great moment in this Case for this Honourable Court to determine the effect of the alteration of the charge by the trial Judge and his failure to read over the Amended charge to the Appellant and to take her plea thereon. Is this minor a procedural infraction which has no effect on the Judgment of the Court as argued by the Respondent or is it such a fundamental defect as to render the entire verdict of the Court a nullity?
We shall argue before the Court that latter is the case. The failure of the Court to take the plea of the Appellant on the Amended charge, we submit, renders the Judgment of the Court a nullity.
The Judge is empowered under section 208 (1) of the Criminal Procedure Code to amend or after the charge at any stage of trial before Judgment. However, section 208 (1) of the Criminal procedure Code makes it mandatory for the trial Judge who amends or alters a charge to take the plea of the Accused Person before he proceeds with the Case or Judgment whichever is the Case. In this Case, The learned trial Judge saw fit to amend the charge at the stage of Judgment.
We submit with the greatest respect that this procedure was wrong. In the first place, when he decided to amend the charge, he ought to have suspected the judgment. The two can not coexist. One must give place to the other: in this case. It was the judgment.
But the learned trial judge did not do so. He may have taken the view that it was a slight, insignificant and inconsequential amendment. We submit that this is a wrong conception. The statutory safeguard provided for the protection of an accused person by Section 208 (2) of the Criminal Procedure Code and all other relevant provisions, is mandatory and not discretionary. The judge shall take the plea of the accused person whenever he amends or alters the charge.”
We totally agree with the above submissions as correct position of the law applicable to the facts and circumstances of the amendment of the charge in the course of Judgment by trial Judge in this case.
We hold that failure to comply with Section 208 (2) of the Criminal Procedure Code is fundamental error and is fatal to the whole trial and it renders the whole trial a Nullity not withstanding that it MAY BE an excellent trial in all its ramification. There is alleged confession by the appellant that on 20/1/95 she poured petrol on the room where deceased BINTA ISA was sleeping at night and this caused the death of Binta Isa on the same day.
We are ending this Judgment with consideration of the REPLY BREIF of APPELLANT ON points of Law raised in the respondent brief. Just like respondent brief which is COGENT and detailed submissions on legal arguments of both statute and decided cases or authorities on Supreme Court decisions or Judgments this reply brief clarify and explained or correct the submissions and legal arguments supported by same or different Supreme Court cases and same or different Sections of the Constitution, Criminal Procedure Code and Penal Code.
We shall emphasise on Alteration or Amendment of the charge particulars in the course of Judgment even though the reply brief covers all aspect of the appeal like reply on points of law on whether or not prosecution proved its case and on issue on Dying declaration. As I said if the whole trial is adjudged a nullity other issues can be dispense with or left alone for the DENOVO RETRIAL if ordered.
We refer to the Patheror of cases and statutes mainly (from the Criminal Procedure Code) Penal Code and the Constitution which all point to and support the view that the alteration and or amendment charge Particulars procedure in the Judgment is wrong and fatal to the Judgment and renders it Nullity.
We reproduced below only 3 or the 5 or 6 cases cited by the appellant counsel in the reply brief page 9 to 17 even though we agree that all are applicable and relevant to this case before us and the cases support the submission that the trial was Nullity.
The appellant counsel submitted as follows:-
“There are a plethora of authorities on this point. In the of Ayodele vs State (2011) 6 NWLR (pt.1243) 309, the Court of Appeal dwelt at length on the consequences of the failure of the trial Judge to take the plea of the accused person after the alteration or amendment of a charge, In this case, learned counsel for the State orally applied on the day fixed for addresses to amend the charge to read “section 1 (2) (a) and not (b) of the Robbery and Firearms (special Provisions) Act Cap 398 Vol. XXII Laws of the Federation of Nigeria 1990 on the ground that this was a typographical error. The application was not opposed by learned counsel for the accused person and was thus granted by the Court. When further asked about the necessity of taking the plea of the accused person on the amended charge, learned counsel significantly answered thus:
“Ojo: since the amendment does not change the character of the charge and the amendment is in respect of form and not substance, taking fresh plea of the accused person is unnecessary.”
(Underlining ours)
The trial Court granted the application and immediately proceeded with the trial by taking the addresses of counsel and later delivered a reserved Judgment wherein it convicted the Appellant.
While allowing the appeal and reversing the conviction of the appellant, the Court of Appeal held at pages 324 to 326 thus:-
“The Law is well settled that a change can be validly amended even after final addresses of counsel. See Dominic Princent & Anor Vs The State (2002) 18 NWLR (pt.798) 49 at 67 and 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, 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 taken. The question is whether the failure to take a fresh plea after the amendment of the information would nullity the trial, conviction and sentence of the appellant by the Court below? Section 163 and 164 (1) of the Criminal Procedure Law of Ondo State prescribe the procedure to follow when an information or charge is altered………………………………….. The use of the word “shall” in Section 163 and 164(1) of the Criminal Procedure Law places a mandatory burden on the Court to invite on accused person to take his Plea again once a charge or information is altered or amended. The magnitude or quantum of the amendment involved and the reasons for the amendment are irrelevant.” (Underlining ours)
The Court held that it was of no moment that learned counsel for the accused person consented to the irregular procedure. In the event, the Court of Appeal nullified the Judgment of the Lower Court and ordered retrial. See also Paulason Vs State (2012) 6 NWLR (pt.1297) 456 at 478; Attah Vs State (1993) 7 NWLR (pt 305) 259. Sections 163 and 164 (1) of the Criminal Procedure law of Ondo State are pari material with Section 208 (1) and (2) of the Criminal Procedure Code under reference and applicable in Adamawa State and in all other 19 States in Northern Nigeria.
Appellant on “we submit that it I of no moment that the case against the Appellant seems to the plain enough or as “clear as crystal”. The Statutory provision must be complied with and the failure to do so renders the Judgment a Nullity no matter how excellent or otherwise well crafted.”
The appellant in distinguishing the case Humble Vs the State (1974) NSCC p.285 submitted and said:-
“The Respondent has argued that Section 382 of the Criminal Procedure Code if anything saves the Judgment in that no substantial miscarriage of Justice was occasioned by this infraction. The Respondent’s argument seems to find support in the Supreme Court decision of Humbe Vs. State (1974) SNCC 285 where the Court per Coker, JSC held that Section 382 Criminal Procedure Code saved the failure of the Court to read over to the appellant an amendment of the charge from Section 221(b) of the Penal Code to Section 221(a) of same. The Court rejected the argument that by failing to take the plea of the accused person after the amendment, the Court had thereby convicted the Appellant on a charge to which he did not plead and that the Appellant was thus misled by the charge. It held that the learned counsel for the Appellant at the trial Court, considered the issue of the amendment as being of little or no practical value or legal significance. It held finally that no miscarriage of justice was occasioned by the failure of the learned trial Judge to take the plea of the Appellant after he amended the charge.
Appellant counsel continued and said:-
“We submit with respect that the above case is distinguishable from the instant one. In the first place, the learned trial Judge amended the charge at the stage of judgment unlike in Humbe vs state (supra) where this was done during the course of the trial. At that stage nobody could take objection to the irregularity committed by the trial Judge except through the process of an appeal, secondly, the learned trial Judge by the amendment of the charge he effected, changed an essential element of the offence which the prosecution charged the Appellant.”
For these reasons stated above we agree and Nullify this Judgment and order Retrial without delay. Appeal Allowed Retrial ordered.
M. B. DONGBAN-MENSEM, J.C.A.: I agree with the lead Judgment prepared by my learned brother A. A. Abba nullifying the Judgment of the trial Court for the failure to take the plea of the Appellant after amending the charge.
Once there is an amendment to a charge, the requirement for a valid arraignment must be complied with a fresh. (Refer Nguru v. State (2002) 9 NWLR pt.771 pg.90 and Attah V. State (1993) 7 NWLR pt.305 Pg.257).
The order of re-trial is qualified to be “without delay”.
I adopt same and urge the learned chief Judge of Adamawa State to assign this case to another Judge for an accelerated hearing and determination.
CHIMA CENTUS NWEZE, J.C.A.: I agree
Appearances
P. S. Agabus Esq.; from Chambers of L. D. Nzadon For Appellant
AND
Chief M. A. Gangs Esq. For Respondent
