PETER OBONYANO v. FEDERAL REPUBLIC OF NIGERIA
(2019)LCN/13391(CA)
In The Court of Appeal of Nigeria
On Thursday, the 30th day of May, 2019
CA/B/379C/2016
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
Between
PETER OBONYANO Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA Respondent(s)
RATIO
WHETHER OR NOT AN ACCUSED PERSON MUST BE CALLED UPON TO PLEAD TO AN AMENDED CHARGE
In truth one of the fundamental requirements to be complied with by a trial Judge under S. 164 of the Criminal Procedure Act is calling upon the accused to state whether he is ready to be tried on such charge or altered charge. See JONES V POLICE (1960) F.SC. 38, Section 164 (1) of the said Act reads thus:
?If a new charge is framed or alteration made to a charge under the provisions of Section 162 or Section 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.?
The provision of Section 164(1) of the Criminal Procedure Act are to be mandatorily complied with. See NOSIRU ATTAH V THE STATE (1993) LPELR ? 598(S.C.) where KARIBI ?WHITE JSC. has this to say
?It is essential that the accused must be called upon to plead to the charge as amended ? see FOX V POLICE (1947) 12 WACA 215; ERONINI V THE QUEEN (1953) 14WACA 366. The charge as amended must have been read and explained to the accused ? See ADISA V AG WESTERN NIGERIAN (1965) 1 ALL NLR 42. The accused shall be asked to state whether he is ready to be tried on the charge as altered. See JONES V POLICE (1960) 5FSC. 38. The expression ?shall? used therein is imperative and not merely directory or predatory. The provision is demanding that something be done. See BUCKNOR ?MACLEAN LTD V INLAKS LTD (1980) 8 -11 SC 1. The requirements of Section 164(1) must be strictly complied with non-compliance results in nullity of the trial however otherwise well conducted ? see ERONINI V THE QUEEN (1944) 12 WACA 210; JONES V POLICE (1960) 5 FSC.38; THE QUEEN V OGUNREMI (1961) 1 ALLNLR 467. See also OKEGBU V STATE (1979) 11SC .1. PER AWOTOYE, J.C.A.
WHETHER OR NOT IT IS THE DUTY OF A COUNSEL FOR THE ACCUSED TO TAKE OBJECTION TO ANY PERCEIVED IRREGULARITY
The law is trite that it is the duty of counsel for the accused to take objection to any perceived irregularity. See SAMBO V THE STATE (1993) 6 NWLR PART 300 p.399; SHEKSE V PLANKSHAK (2008) 15 NWLR PART 1109 p. 105; OLATUNBOSUN V THE STATE (2013) 17 NWLR PT. 1382 p. 167.
This however does not answer for the fundamental lapse in the trial of the accused. The decision of the apex Court in ATTAH V THE STATE (supra) is binding and quite explicit. The presence of counsel for the accused does not cure the lapse since it is not a mere irregularity. This lapse regrettably, vitiates the entire trial of the appellant at the lower Court. In line with the decision of ATTAH V THE STATE (supra) the entire trial is a nullity. PER AWOTOYE, J.C.A.
TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal filed by the appellant PETER OBONYANO who was the accused at the Court below in SUIT NO. A/ICPC/1C/07 PETER OBONYANO VS. FEDERAL REPUBLIC OF NIGERIA.
The accused was arraigned for an offence under the Corrupt Practices and Other Related Offences Act 2000.
The Charge against the accused read thus:
AT the session of the High Court of Delta State Holden at Asaba on the ____ day of ____ 2007, the Court is informed by the Honourable Attorney General of the Federation on behalf of the Federal Republic of Nigeria that:
PETER OBONYANO (M)
Is charged with the following offences;
COUNT ONE
STATEMENT OF OFFENCE
Corruptly asking for property contrary to Section 8(1)(a) and punishable under Section 8 (1)(b)(ii) of the Corrupt Practices and other Related Offences Act 2000.
PARTICULARS OF OFFENCE
PETER OBONYANO (M) in the month of July 2007, at Ozoro, Delta State, while serving as an official of the Delta State Polytechnic, Ozoro, Delta State did corruptly ask for the sum of N150,000 (one hundred and
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Fifty thousand naira) from one Mathew Akpovika for yourself in relation to contract awarded by the Delta State Polytechnic, Ozoro to the said Mathew Akpovika (trading under the name and style RIRODAF AND SONS VENTURES)
COUNT TWO
STATEMENT OF OFFENCE
Corruptly asking for Property contrary to Section 8(1)(a) and punishable under Section 8 (1)(b)(ii) of the Corrupt Practices and other Related Offences Act 2000.
PARTICULARS OF OFFENCE
PETER OBONYANO (M) in the month of July 2007, at Ozoro, Delta State, while serving as an official of the Delta State Polytechnic, Ozoro, Delta State did corruptly ask for the sum of N50,000 (Fifty thousand naira) as gratification from one Mathew Akpovika for yourself in relation to contract awarded by the Delta State Polytechnic, Ozoro to the said Mathew Akpovika (trading under the name and style RIRODAF AND SONS VENTURES)
COUNT THREE
STATEMENT OF OFFENCE
Corruptly agreeing to receive property contrary to Section 8 (1)(b)(i) and punishable under Section 8 (1)(b)(i) of the Corrupt Practices and other Related Offences Act 2000.
PARTICULARS OF OFFENCE
?PETER OBONYANO (M) in the month
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of July 2007 or thereabouts, at Ozoro, Delta State, while serving as an official of the Delta State Polytechnic, Ozoro, Delta State did agree to receive the sum of N150,000(one hundred and Fifty thousand naira) from one Mathew Akpovika for yourself in relation to contract awarded by the Delta State Polytechnic, Ozoro to the said Mathew Akpovika (trading under the name and style RIRODAF AND SONS VENTURES)
COUNT FOUR
STATEMENT OF OFFENCE
Corruptly agreeing to receive contrary to Section 8 (1)(b)(i) and punishable under Section 8 (1)(b)(i) of the Corrupt Practices and other Related Offences Act 2000.
PARTICULARS OF OFFENCE
PETER OBONYANO (M) in the month of July 2007 or thereabouts, at Ozoro, Delta State, while serving as an official of the Delta State Polytechnic, Ozoro, Delta State did agree to receive the sum of N100,000 (one hundred thousand naira) as gratification from one Mathew Akpovika for himself in relation to contract awarded by the Delta State Polytechnic, Ozoro to the said Mathew Akpovika (trading under the name and style RIRODAF AND SONS VENTURES)
COUNT FIVE
STATEMENT OF OFFENCE
Corruptly agreeing to receive
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contrary to Section 8 (1)(b)(i) and punishable under Section 8 (1)(b)(i) of the Corrupt Practices and other Related Offences Act 2000.
PARTICULARS OF ERROR
PETER OBONYANO (M) in the month of July 2007 or thereabouts, at Ozoro, Delta State, while serving as an official of the Delta State Polytechnic, Ozoro, Delta State did agree to receive the sum of N50,000 (Fifty thousand naira) from one Mathew Akpovika for yourself in relation to contract awarded by the Delta State Polytechnic, Ozoro to the said Mathew Akpovika (trading under the name and style RIRODAF AND SONS VENTURES)
COUNT SIX
STATEMENT OF OFFENCE
Corruptly receiving property contrary to Section 8 (1)(b)(i) and punishable under Section 8 (1)(b)(i) of the Corrupt Practices and other Related Offences Act 2000.
PARTICULARS OF ERROR
?PETER OBONYANO (M) in the month of July 2007 or thereabouts, at Ozoro, Delta State, while serving as an official of the Delta State Polytechnic, Ozoro, Delta State did receive the sum of N100,000 (One Hundred thousand naira) from one Mathew Akpovika for yourself in relation to contract awarded by the Delta State Polytechnic, Ozoro to the said
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Mathew Akpovika (trading under the name and style RIRODAF AND SONS VENTURES)
COUNT SEVEN
STATEMENT OF OFFENCE
Failure to report promise of gratification contrary to Section 23(1) and punishable under Section 23(3) of the Corrupt Practices and other Related Offences Act 2000.
PARTICULARS OF ERROR
PETER OBONYANO, (M), in the month of July 2007, or thereabouts, at Ozoro, Delta State, while serving as a Public officer to wit: the Chief Security Officer of the Delta State Polytechnic Ozoro, failed to report to an officer of the Independent Corrupt Practices and other related Offences Commission (I.C.P.C) or to a police officer, of the sum of N150,000 (One Hundred and Fifty thousand naira) gratification made by one Michael Akpovika to you in relation to a contract awarded by the Delta State Polytechnic, Ozoro to the said Mathew Akpovika (trading under the name and style RIRODAF AND SONS VENTURES)
COUNT EIGHT
STATEMENT OF OFFENCE
Failure to report offer of gratification contrary to Section 23(1) and punishable under Section 23(3) of the Corrupt Practices and other Related Offences Act 2000.
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PARTICULARS OF ERROR
PETER OBONYANO, (M), in the month of July 2007, or thereabouts, at Ozoro, Delta State, while serving as a Public officer to wit: the Chief Security Officer of the Delta State Polytechnic Ozoro, failed to report to an officer of the Independent Corrupt Practices and other related Offences Commission (I.C.P.C) or to a police officer, the offer of payment of the sum of N100,000 (One Hundred thousand naira) gratification made by one Mathew Akpovika to you in relation to a contract awarded by the Delta State Polytechnic, Ozoro to the said Mathew Akpovika (trading under the name and style RIRODAF AND SONS VENTURES)
COUNT NINE
STATEMENT OF OFFENCE
Failure to report offer of gratification contrary to Section 23(1) and punishable under Section 23(3) of the Corrupt Practices and other Related Offences Act 2000.
PARTICULARS OF ERROR
PETER OBONYANO, (M), in the month of July 2007, or thereabouts, at Ozoro, Delta State, while serving as a Public officer to wit: the Chief Security Officer of the Delta State Polytechnic Ozoro, failed to report to an officer of the Independent Corrupt Practices and other related Offences Commission (I.C.P.C) or to a
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police officer, the payment of the sum of N50,000 (Fifty thousand naira) gratification made by one Mathew Akpovika to you in relation to a contract awarded by the Delta State Polytechnic, Ozoro to the said Mathew Akpovika (trading under the name and style RIRODAF AND SONS VENTURES).
COUNT TEN
STATEMENT OF OFFENCE
Failure to report receipt of gratification contrary to Section 23(1) and punishable under Section 23(3) of the Corrupt Practices and other Related Offences Act 2000.
PARTICULARS OF ERROR
PETER OBONYANO, (M), in the month of July 2007, or thereabouts, at Ozoro, Delta State, while serving as a Public officer to wit: the Chief Security Officer of the Delta State Polytechnic Ozoro, failed to report to an officer of the Independent Corrupt Practices and other related Offences Commission (I.C.P.C) or to a police officer, the receipt by him of the sum of N100,000 (One Hundred thousand naira) gratification given by one Mathew Akpovika in relation to a contract awarded by the Delta State Polytechnic, Ozoro to the said Mathew Akpovika (trading under the name and style RIRODAF AND SONS VENTURES).
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COUNT ELEVEN
STATEMENT OF OFFENCE
Using the office to confer corrupt advantage upon self contrary to and punishable under Section 19 of the Corrupt Practices and other Related Offences Act 2000.
PARTICULARS OF ERROR
PETER OBONYANO, (M), in the month of July 2007, or thereabouts, at Ozoro, Delta State, being a Public officer to wit: the Chief Security Officer of the Delta State Polytechnic Ozoro, did use your position to confer corrupt advantage upon yourself by collecting the sum of N100,000 (One Hundred thousand naira) gratification from one Mathew Akpovika in relation to a contract awarded by the Delta State Polytechnic, Ozoro to the said Mathew Akpovika (trading under the name and style RIRODAF AND SONS VENTURES).?
The charge was read and explained to the accused who pleaded not guilty to each of the counts of the charge.
The learned trial judge after hearing the parties entered judgment in the following terms.
?In the final result, I find and hold that the prosecution has proved the case against the accused person as required by law in counts I, III, IV,V,VI and XI.
I find the case of the prosecution in counts II VII, VIII, IX and X
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not proved. I accordingly find the accused person guilty as charged in counts I, III, IV, V, VI and XI of the eleven count charge.?
The accused was then sentenced to term of imprisonment as follows:
?SENTENCE
The Accused power has been found guilty of offences bordering on corruption for which the law provides very stringent punishment. The punishment for counts I, III, IV, V, VI is seven(7) years imprisonment. Then on Count XI, the punishment is 5 years imprisonment with a specific provision that the punishment is without an option of fine. There is no doubt that the punishment for the offence has been so provided to show the Government?s resolve to stamp out corruption or corrupt practices from every facet of our National life. The Court must therefore give effect to this resolve by a clear and definite pronouncement.
In each of the Counts I, III, IV, V and VI, the Accused person, Mr. Peter Oboyano is hereby sentenced to 7 years imprisonment or is to pay a fine of N20,000.00 in each of these counts. The sentences are concurrent but the fine consecutive. With respect to Count XI, there being a specific bar for the
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imposition of a fine in lieu of imprisonment, the Accused is hereby sentenced to imprisonment for 5 years without option of fine.?
Aggrieved by the above judgment and sentence the accused filed a 4 grounds Notice of Appeal.
GROUND OF APPEAL
1. The learned trial judge erred in law when he assumed jurisdiction over the trial and conviction of the appellant based on a non existing law.
2. The learned trial judge erred in law and thereby occasioned a miscarriage of justice when he held as follows:
?In the final result, I find and hold that the prosecution has proved the case against the accused person as required by law in counts I, III, IV, VI and I, III, IV, VI, and XI of the eleven count charge.?
3. The learned trial judge erred in law and thereby came to a perverse decision when he failed to call upon the appellant to state whether the appellant is ready to be tried on such amended charges after the amendment of the charges against the appellant.
4. The part of the judgment of the learned trial judge appealed against is unreasonable, unwarranted and cannot be supported having regard to the evidence.?
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After transmission of record of appeal to this Court parties filed and exchanged briefs of argument.
SUBMISSION OF COUNSEL
APPELLANT BRIEF OF ARGUMENT
Appellant?s brief was filed on the 15/11/2017 and settled by AYO ASALA ESQ. Counsel for the Appellant formulated two issues for determination to wit;
1. Whether the learned trial judge was right when he failed to call upon the appellant to state whether the appellant was ready to be tried on the amended charges after several amendments of the charges.
2. Whether having regard to the circumstances of this case and the totality of the evidence on record, the learned trial judge was right in holding that the prosecution proved the offences charged against the appellant beyond reasonable doubt.
ISSUE ONE
Counsel submitted that the learned trial judge was wrong when he failed to call the appellant to state whether he was ready to be tried on the amended charge.
Counsel submitted that the trial judge was wrong not to have recalled all witnesses who had given evidence and ask prosecution and accused if they wished to examine or cross examine them.
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Appellant?s counsel argued that the failure of the trial Court to comply with the provisions of SECTION 164 OF CRIMINAL PROCEDURE ACT rendered the whole proceedings a nullity.
Appellant counsel cited OGUDO V THE STATE (2012) ALL FWLR (PT 629) 1111 @ 1147 and JOEL OMOZE VS THE STATE APPEAL NO. 519C/2014.
ISSUE TWO
Appellant?s counsel argued that the trial judge was wrong to have held that the prosecution proved the charges against the appellant in regards to count 1, 3,4,5, and 11.
Appellant?s counsel submitted that before the prosecution can be said to had proved beyond reasonable doubt the charges as contained in count 1,3,4,5,6 and 11 must proved that has a duty to perform in his official capacity in this case.
Appellant?s counsel further submitted that the reliance of the trial Court on Exhibit G as a confessional statement was misconceived.
He cited SANI VS THE STATE (2016) ALL FWLR (PT 848) 661 @ 678.
RESPONDENT?S BRIEF OF ARGUMENT
Respondent?s brief of argument was filed on 26/2/19 and settled by V.O. IWOBA ESQ, Principal Legal Officer ICPC.
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Respondent?s counsel raised two issues for determination to wit;
1. Whether or not the respondent proved its case against the appellant beyond reasonable doubt.
2. Whether the learned trial judge did not comply with section 164 of the Criminal Procedure Act.
ISSUE ONE
Respondent?s counsel argued that by virtue of the Appellant employment and provision of SECTION 2 OF THE CORRUPT PRACTICES ACT, 2000, Appellant was a public officer who used his office to confer advantage upon himself by collecting money from PW1.
Counsel submitted that the circumstances that led to the trial and evidence before the Court showed that prosecution had proved its case beyond reasonable doubt.
Counsel argued that it was shown that the appellant intentionally and personally demanded for gratification.
Respondent?s counsel cited SECTION 8 (2) OF THE CORRUPT PRACTICES AND OTHER RELATED OFFENCES ACT 2000.
Respondent counsel further submitted that the confessional statement of the appellant directly linked him to the offences charged .
ISSUE TWO
?Respondent counsel submitted that the learned trial judge fully and relatively complied
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with the provision of SECTION 164 OF THE CRIMINAL PROCEDURE ACT from the evidence on record before this Court.
Respondent?s counsel submitted further that assuming without conceding that the trial Court did not comply fully in the relevant provision, that it did only amount to irregularity and could not vitiate trial and conviction of the appellant.
Counsel further submitted that the onus was on the appellant to show that he informed the Court that he was not ready to be tried in the new charges.
Counsel submitted that the appellant could not hide under the facade of technicality to defeat the course of justice.
RESOLUTION
I have gone through the submissions of learned counsel as well as the contents of the record of appeal. The appellant being the aggrieved person, I shall adopt his issues to determine this appeal.
Whether the learned trial judge was right when he failed to call upon the appellant to state whether the appellant was ready to be tried on the amended charges after several amendments of the charges.
In truth one of the fundamental requirements to be complied with by a trial Judge under
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S. 164 of the Criminal Procedure Act is calling upon the accused to state whether he is ready to be tried on such charge or altered charge. See JONES V POLICE (1960) F.SC. 38, Section 164 (1) of the said Act reads thus:
?If a new charge is framed or alteration made to a charge under the provisions of Section 162 or Section 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.?
The provision of Section 164(1) of the Criminal Procedure Act are to be mandatorily complied with. See NOSIRU ATTAH V THE STATE (1993) LPELR ? 598(S.C.) where KARIBI ?WHITE JSC. has this to say
?It is essential that the accused must be called upon to plead to the charge as amended ? see FOX V POLICE (1947) 12 WACA 215; ERONINI V THE QUEEN (1953) 14WACA 366. The charge as amended must have been read and explained to the accused ? See ADISA V AG WESTERN NIGERIAN (1965) 1 ALL NLR 42. The accused shall be asked to state whether he is ready to be tried on the charge as altered. See JONES V POLICE (1960) 5FSC. 38. The expression ?shall? used
15
therein is imperative and not merely directory or predatory. The provision is demanding that something be done. See BUCKNOR ?MACLEAN LTD V INLAKS LTD (1980) 8 -11 SC 1. The requirements of Section 164(1) must be strictly complied with non-compliance results in nullity of the trial however otherwise well conducted ? see ERONINI V THE QUEEN (1944) 12 WACA 210; JONES V POLICE (1960) 5 FSC.38; THE QUEEN V OGUNREMI (1961) 1 ALLNLR 467. See also OKEGBU V STATE (1979) 11SC .1.?
I have carefully perused the proceedings of the trial at the lower Court. It is clear that the learned trial judge failed to ask the accused whether he was ready to be tried on the altered charge.
The contention of the learned Respondent?s counsel was that the error was a mere irregularity which could be overlooked insofar there was no miscarriage of justice. This contention, with due respect cannot stand in the face of the above authorities. The error of the lower Court is not a mere irregularity but a fundamental one.
There is however need to consider the fact that the accused was legally represented at the lower Court during the trial but he never
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objected.
The law is trite that it is the duty of counsel for the accused to take objection to any perceived irregularity. See SAMBO V THE STATE (1993) 6 NWLR PART 300 p.399; SHEKSE V PLANKSHAK (2008) 15 NWLR PART 1109 p. 105; OLATUNBOSUN V THE STATE (2013) 17 NWLR PT. 1382 p. 167.
This however does not answer for the fundamental lapse in the trial of the accused. The decision of the apex Court in ATTAH V THE STATE (supra) is binding and quite explicit. The presence of counsel for the accused does not cure the lapse since it is not a mere irregularity. This lapse regrettably, vitiates the entire trial of the appellant at the lower Court. In line with the decision of ATTAH V THE STATE (supra) the entire trial is a nullity. The error infects the entire charge and trial.
I resolve this issue in the circumstance in favour of the appellant.
Having held that trial at the lower Court is a nullity, it is needless to proceed to resolve issue No. 2.
I therefore set aside the entire trial judgment and conviction of the appellant by the lower Court delivered on 4/6/2014.
Having regard to the fact that the appellant was sentenced to a term of 5
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years imprisonment about 5 years ago, it would be oppressive to order a re-trial in the circumstance. See THE STATE V LOPEZ (1968) 1 ALL NLR 365. ADEOYE V THE STATE (1999) 6 NWLR PT. 605 p.74.
An Order of retrial would occasion a greater miscarriage if made.
This appeal is allowed. The Appellant is discharged and acquitted.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the judgment just delivered by my learned brother, TUNDE OYEBAMIJI AWOTOYE JCA. I am of the firm agreement with him that the amendment to the charge should have necessitated the Court asking the Appellant to take the plea afresh.
Generally, failure to ask the Accused to plead to the amended charge renders the subsequent or the whole trial a nullity. In the peculiar facts of this case, the initial charge that was before the Court contained Nine (9) counts but after several amendments, counts 5 and 9 were added to make a total of Eleven (11) counts altogether. There was a substantial change as a result of the additional counts, and the Court should have asked the Appellant to take a fresh plea. As at the time the trial in this appeal was conducted, the
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Administration of Criminal Justice Law derived from the Administration Of Criminal Justice Act 2015 was not yet applicable in Delta State to give a discretion to the learned trial judge to consider the whole circumstances before coming to the conclusion that the Court can dispense with the Accused taking a fresh plea. The extant substantive law, procedural law and the decision law is that any criminal trial in which the Accused was not called on to plead to the charge or the amended charge is a nullity. There was hitherto no avenue for judges to exercise any discretion. The Administration of Criminal Justice Act actually confers on the trial Court discretionary powers on this point. Section 218(1) of the Administration of Criminal Justice Act provides thus:
“Where the charge as revised under Section 216 or 217 of this Act is such that proceeding immediately with the trial is not likely in the opinion of the Court to prejudice the defendant in his defence or the prosecutor, as the case may be, in the conduct of the case, the Court may in its discretion forthwith proceed with the trial as if the charge so revised had been the original charge.”
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This section allows a trial Court to exercise its discretionary powers in continuing with the trial of an accused person upon the establishment of the fact that he will not be unfairly prejudiced. By Section 218(1) of the Administration of Criminal Justice Act of 2015, the learned trial judge has discretion, and is now empowered to consider circumstances of the amendment to the charge. For example, where radical amendment has been made to the charge in the sense that ingredients to prove the original charge are different from the ingredients to prove the present charge, then the learned trial judge is obliged to call upon the accused to take a fresh plea.
As I said earlier, that law then not being applicable in Delta State, the extant law and the settled Court decisions make it mandatory for the trial Court to have asked the Appellant to take a fresh plea. I agree that the appeal has merit and should be allowed. I also abide by the consequential orders made.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read before now the judgment of my learned brother, TUNDE OYEBAMIJI AWOTOYE, JCA; just delivered.
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I agree that this appeal ought to be allowed as it is meritorious. For the reasons given by my learned brother, I also allow this appeal in the terms set out in the leading judgment.
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Appearances:
R.O. IDIGUFor Appellant(s)
V.O. IWOBA (Mrs.) (Principal Legal Officer I.C.P.C.)
For Respondent(s)
Appearances
R.O. IDIGUFor Appellant
AND
V.O. IWOBA (Mrs.) (Principal Legal Officer I.C.P.C.)For Respondent