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CHUKWULOBE v. FRN (2020)

CHUKWULOBE v. FRN

(2020)LCN/14334(CA)

In The Court Of Appeal

(AWKA JUDICIAL DIVISION)

On Wednesday, June 10, 2020

CA/AW/58C/2019

Before Our Lordships:

Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal

Rita Nosakhare Pemu Justice of the Court of Appeal

Bitrus Gyarazama Sanga Justice of the Court of Appeal

Between

NONSO CHUKWULOBE APPELANT(S)

And

FEDERAL REPUBLIC OF NIG. RESPONDENT(S)

RATIO

WHETHER OR NOT A NEW CHARGE IS DEEMED AS THE ORIGINAL CHARGE BEFORE THE COURT UPON AMENDMENT OF A CHARGE

It is trite that upon the amendment of a charge, the new charge is deemed as the original charge before the Court.
Section 217 (1) of the Administration of Criminal Justice Act provides as follows:-
217(i)
“Where a new charge is framed or alteration made to a charge under the provision of Section 216 of this Act the Court shall call on the defendant to plead to the new or altered charge as if he has been arraigned for the first time.”
In a criminal proceeding the jurisdiction of the Court is invoked by the plea of the accused person. PER NWOSU-IHEME, J.C.A. 

CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment): The Appellant in this Criminal appeal was arraigned before the Federal High Court, Awka in charge No. FHC/AWK/25C/2013. The Appellant was initially arraigned on the 25th of March, 2013, on a two count charge before I. L Ojukwu, J. The Appellant pleaded not guilty on both counts.

The prosecution on the 22nd of April, 2013 filed an amended charge on a one count charge to which the Appellant also pleaded not guilty.

The matter started de novo before M. L. Abubakar on the 7th of October, 2013 on the one count charge and trial commenced on the 27th of October, 2013 on the amended charge.

In a considered Judgment delivered on the 17th of June, 2019, the learned trial Judge convicted the Appellant on count one of the two count charges already withdrawn by the prosecution when they filed a one count amended charge on the 22nd of April, 2013. The Appellant was however discharged on the second count. The Appellant was sentenced to twelve years imprisonment on the said count one. This appeal is predicated on the said Judgment.

​C. L. Ndukaihe Esq of counsel for the

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Appellant in his brief, distilled three issues for determination as follows:
1. “Whether the conviction of the Appellant on a two count charge dated the 18th day of March, 2013 instead of the amended charge dated the 22nd day of April, 2013 which the Appellant stood trial is valid in law.
2. Whether the conviction of the Appellant by the lower Court was reached based on suspicion.
3. Whether the Appellant is under any legal obligation to establish his innocence before the trial Court”.

The Respondent’s Counsel Bridget Viashimah Esq on his part distilled one very long and winding issue thus:
“Whether the Appellant’s conviction by the trial Court ought to be sustained by this honourable Court. In the light of the evidence led when no miscarriage of Justice has been shown to have occurred by the reference of the learned trial Judge to the withdrawn charge of 18th March, 2013.”

The first issue distilled by counsel for the Appellant and the sole issue distilled by the Respondent revolve round the fact that the Appellant was tried on a one count amended charge dated the 22nd of April, 2013, while he

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was convicted based on the two count charge dated the 18th of March, 2013 which had been withdrawn.

To this end, the first issue distilled by counsel for the Appellant is more straight forward and apt. I shall therefore deal with the said first issue. A resolution of that issue will determine the need or otherwise to go into the other issues distilled by counsel for the Appellant. Appellant’s issue one reads:
“Whether the conviction of the Appellant on a two count charge dated the 18th day of March, 2013 instead of the amended charge dated the 22nd day of April, 2013 which the Appellant stood trial is valid in law”.

In his brief of argument, learned counsel for the Appellant C. L. Ndukaihe Esq, submitted, in summary, that the plea of the Appellant was on the amended charge of 22nd April, 2013 and not the former charge dated the 18th of March, 2013 which had been withdrawn and therefore occasioned miscarriage of Justice. He prayed the Court to set aside the Judgment and the conviction of the Appellant as there was no valid charge upon which the appellant was convicted. There is also a Reply brief filed on the 7th of October, 2019.

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In his reply, learned counsel for the Respondent, Bridget Viashimah Esq., is his brief, referred to the two count charge dated the 18th of March,2013 and contended that the dismissal of the withdrawn charge was made without prejudice and therefore does not bar any future reference to the said charge by the Court even if differently constituted.

He argued that a Court of law can convict a defendant on a charge he was neither arraigned nor tried as far as the evidence led supports the charge he was convicted for. He cited BABALOLA V. THE STATE (1989) 7 SC (PT. 1) PG. 94 at 112 – 113.

A valid arraignment must consist of the following elements which must 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 Court.
3. The accused must be called upon to plead.
4. The plea of the accused must be recorded by the Court.
See, DIBIE V. STATE (2007) 9 NWLR (PT. 1038) PG. 306.
AMALA V. STATE (2004) 12 NWLR (PT.888) 520.

​The learned trial Judge in the preamble

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of his Judgment delivered on the 17th of June, 2019, started by reproducing the two count charge. For ease of reference, I shall also reproduce same:
“The Defendant stand charge (sic) of a two (2) Counts (sic) charge as follows:
COUNT 1
“That you NONSO CHUKWULOBE, male, adult, 50 years, on or about the 8th day of March, 2013 at Umuota Village, Obosi in Idemili North Local Government Area, Anambra State within the jurisdiction of this honourable Court with lawful authority knowingly possessed 27.2 grammes of cocaine, a narcotic drug and thereby committed an offence contrary to and punishable under Section 19 of the National Drug Law Enforcement Agency Act Cap. 30 Laws of the Federation of Nigeria, 2004.
COUNT 2
“That you NONSO CHUKWULOBE, male, adult, 50 years, on or about the 8th day of March, 2013 at Umuota Village, Obosi in Idemili North Local Government Area of Anambra State within the jurisdiction of this honourable Court without lawful authority knowingly possessed 17.6 grammes of Heroin, a narcotic drug and thereby committed an offence contrary to and punishable under

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Section 19 of the National Drug Law Enforcement Agency Act Cap. N30 Laws of the Federation of Nigeria, 2004.”

The plea of the defendant was taken on 7/10/13 wherein he pleaded not guilty. (See pages 154 – 155 of the Records)
It is also on record that the above charge was dated 18th March, 2013. (See page 1 of the Record).

The plea of the Appellant herein was taken on the 7th of October, 2013. Both counsel have also agreed that on the said 7/10/2013, the Appellant pleaded to a one count amended charge.

The Appellant was initially arraigned on the 25th of March, 2013, on a two count charge before I. L. Ojukwu, J. and he pleaded not guilty to both Counts.
The Respondent thereafter amended the charge to a one count charge on the 22nd of April 2013.

The matter started De novo before M.L. Abubakar on the 7th of October, 2013. Both counsel also agreed that trial commenced before M. L. Abubakar on the amended one count charge on the 27th day of October, 2013.

​Both Counsel are also in agreement that the initial two count charge was before I. L. Ojukwu, J and plea on the said two count charge was taken before I. L Ojukwu, J.

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Consequent upon the positing of I. L. Ojukwu to another Judicial division, the matter started de novo before M. L. Abubakar on the one count amended charge. Plea was taken before M. L. Abubakar on the one count charge. (See page 87 – 88 of the Record)
It is trite that upon the amendment of a charge, the new charge is deemed as the original charge before the Court.
Section 217 (1) of the Administration of Criminal Justice Act provides as follows:-
217(i)
“Where a new charge is framed or alteration made to a charge under the provision of Section 216 of this Act the Court shall call on the defendant to plead to the new or altered charge as if he has been arraigned for the first time.”
In a criminal proceeding the jurisdiction of the Court is invoked by the plea of the accused person.
It is clear from the Records that the Appellant took his plea on the 7th of October, 2013 and that he pleaded to the amended one count charge and not the two counts already withdrawn. It follows therefore that the Appellant was tried under the one count charge. The reference by the learned trial Judge to a two count charge not before him was clearly an

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infringement of the fundamental rights of the Appellant and therefore not in accordance with the law.
The Conviction and sentencing of the Appellant on a wrong charge that had been withdrawn was clearly unfair and improper. It was a miscarriage of Justice and I so hold.
I am aware that a trial Court could convict an accused on a lesser or higher offence once proved by the prosecution beyond reasonable doubt, but such a conviction or sentence must be anchored on the charge pleaded by the accused person and not based on a wrong charge.
The plea taken by the Appellant before I. L Ojukwu, J. on 25/3/2013 before her posting was of no consequence and completely irrelevant hence trial of the Appellant started de novo.
This was the view of the Apex Court in EFFIOM V. STATE (2003) 3 ACLR PG. 200, thus:
“The plea taken before Udofia, J, on the 15th of December before disengaging from trying the appellant is of no consequence and ought to be regarded as irrelevant in the argument proffered herein, this is because the trial of the appellant strictly so called did not consist of the preliminaries that took place before Udofia J. but rather

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those which were conducted from plea on 25/1/88 before Effanga.”
The above is on all fours with the instant case.
The learned trial Judge in his Judgment at page 164 of the Records held:
“Based on the above, I hold that the Defendant is culpable and is hereby convicted accordingly on the second count but is discharged and acquitted on the 1st charge of possession of cocaine”.
At the time the Appellant was convicted and sentenced to 12 years imprisonment by the trial Judge in count two of the charge, discharged and acquitted in count one of the charge, it was an exercise in futility since the Appellant was not tried on the said two counts already withdrawn by the prosecution.
The conviction and sentencing of the Appellant on a two count charge already withdrawn by the prosecution was like putting something on nothing. It was like sentencing the Appellant on a non–existent charge, it is a complete nullity and has resulted in unpleasant consequences. Therefore, no matter how well the trial was conducted, it was a complete waste of time and clearly improper.
Ground one is therefore resolved in favour of the

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Appellant and against the Respondent.

A determination of this Ground has rendered a consideration of the other two Grounds unnecessary and academic.
There is therefore merit in this appeal and it is hereby allowed.
The Judgment of the trial Court delivered on the 17th of June, 2019 by M. L. Abubakar, J, in charge No. FHC/AWK/25C/2013 is a nullity and is hereby set aside.

This case is remitted back to the Chief Judge of the Federal High Court to be assigned to another Judge of the Federal High Court other than M.L. Abubakar, J, for trial de novo.

RITA NOSAKHARE PEMU, J.C.A.: I had read before now, the lead judgment just delivered by my brother CHIOMA NWOSU-IHEME, (Ph. D) JCA.
I agree with her reasoning and conclusion.
I also remit the case back to the Chief Judge of the Federal High Court Awka in charge No. FHC/AWK/25C/2013 for reassignment to another Judge for retrial de novo.

BITRUS GYARAZAMA SANGA, J.C.A.: I have the privilege of reading a draft of the judgment just delivered by my learned brother Nwosu-Iheme J.C.A. I agree with the finding and decision reached by my learned brother in the lead judgment that this

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appeal has merit and is allowed. The judgment by the lower Court delivered on 17th June, 2019 in Charge No. FHC/AWK/25C/2013 is set aside for being a nullity. The case is hereby remitted back to The Hon. The Chief Judge of the Federal High Court to be re-assigned to another Judge who will hear and determine same on the merit.

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Appearances:

C .L Ndukaihe, with him, O. J. Oisakwe Esq. For Appellant(s)

Viashimch Esq. For Respondent(s)