IN THE SUPREME COURT OF NIGERIA
On Friday, the 9th day of November 1979
SC9/1977
Between
NWAFOR OKEGBU .............. APPELLANT
And
THE STATE ................. RESPONDENT
The appellant herein was charged under Section 319(1) of the Criminal Code (Cap. 30-Laws of Eastern Nigeria) with having on the 8th day of November 1974 in the Enugu Judicial Division, murdered one Oriaku Ojioma. Ojioma Obu alias Oju. He was tried by Okagbue, J. (as he then was) in the High Court of the East Central State of Nigeria.
The Appellant pleaded not guilty to the charge on 23rd February 1976. After eight witnesses had given evidence for the prosecution that day, the prosecution applied to amend the information by adding the word "Obu" to the name of the murdred person so that it will read Oriaku Ojioma Obu. This application was granted and the matter adjourned to 12th March 1976. But the accused was not called upon to plead to the amended charge as is required under Sections 163, 164 and 165 of the Criminal Procedure Law (Cap. 31-Laws of Eastern Nigeria O 1963) on the adjourned date. Thereafter the ninth prosecution witness (a medical doctor) gave evidence for the prosecution testifying to having exhumed the body of the deceased six months after its burial and of autopsy thereon, resulting in establishing the cause of death. The accused then also gave evidence admitting the statement (Exhibit A) which he had made to the Police.
At the close of the defence counsel's address, the prosecution counsel made another application to amend the charge in order to add after the words Oriaku Ojioma in the particulars of offence the words "alias Oriaku Oji Obu alias Oriaku Oji." The court granted the application and the amended charge was read to the accused person after which he pleaded "not guilty". The learned trial court after considering the arguments on both sides, convicted the accused and sentenced him to death.
The Appellant then appealed unsuccessfully to the Court of Appeal and has now appealed to this court on the ground that his trial is rendered null and void on the ground of non-compliance with Section 164 of the Criminal Procedure Law (Cap. 31-Laws of Eastern Nigeria and that this was not an appropriate case in which an order for retrial should be made. The respondent on the other hand, would be content with an order for retrial as a last resort.
HELD:
(1) In deciding upon whether there had been substantial miscarriage of justice, the Court of Appeal dealing with the issue raised must be satisfied that it is not one of a mere technicality which had caused embarrassment or prejudice to the appellant. It would be facile in the extreme to argue that an appellant who had been denied the protection enshrined in the laws of this country for his benefit under Sections 163, 164 and 165 of the Criminal Procedure Law had not been embarassed or prejudiced. The evidence of the 9th prosecution witness and the Appellant taken in breach of the above provisions are clearly inadmissible and if this evidence is excised from the proceedings, there would be nothing left upon which to sustain a trial. Justice had not been done and the question of its miscarriage becomes irrelevant.
(2) Some legislative provisions may prove a nottlesome humbug, but in such a situation what is called for is remedial action through legislative process. It is not the business of the court to seek to ignore the existence of legislation, until it is repealed.
(3) This court has in a long line of authorities enshrined the view that, whenever a charge is amended during a trial, a new charge is thus constituted in which case a fresh plea from the accused is an indispensable requirement. Failure to obtain a new plea as laid down under Section 164(1) of the Criminal Law Procedure Law would render the trial null and void.
(4) It is only when an accused pleads either guilty or not guilty to a charge as the case may be, that issues are joined in a criminal trial and until this happens, he is technically outside the pale of the court's jursidiction. Indeed in a summary trial of an indictable offence in a magistrate's court, there is the additional requirement that the presiding, magistrate should put the accused on his election in order to find jurisdiction. If, after the commencement of the trial of an indictable offence the charge undergoes an amendment, the law requires that the accused be again put on his election and a fresh plea obtained from him. failure to do so would vitiate the trial.
(5) Where an accused is represented by counsel throughout a trial, non-compliance with the provisions of Sections 164(2) and 165 of the Criminal Procedure Law will not vitiate the trial.
(6) I would need more persuasion to hold that this is a case which calls for the application of the priviso to section 20(1) of the Federal Court of Appeal Decree No. 43 of 1976 which provides grounds under which the Court of Appeal may dismiss any appeal provided that notwithstanding that the appeal might be decided in favour of the appellant, considers that no substantial miscarriage of justice has actually occurred.
(7) The trial in this case is vitiated by non-compliance with the provisions of Section 164(1) of the Criminal Procedure Law. This being a capital offence and there being also a written admission of its commission by the Appellant, the ends of justice would be met by an order for a retrial. A decision to order a retrial must derive from the peculiar circumstances of a given case.
Appeal allowed.
BELLO J.S.C. (dissenting)
(1) A careful preusal of the cases relevant to the question whether a mere failure to call an accused to plead to an amended charge vitiates a trial irrespective of whether or not no substantial miscarriage of justice has been occasioned, seems to suggest that the law is far from being settled. It is in a state of confusion. there are cases that answered the question firmly in the affirmative and there are cases proposing that non-compliance with section 164(1) does not vitiate a trial if no substantial miscarriage of justice has actually occurred and yet an occasion when this very court, wherein an accused person has no opportunity to plead, amended the charge in order to ensure that justice has been done.
(2) There are authorities to show that a failure to comply with the second limb of Section 164(1) of the Criminal Procedure Act does not vitiate a trial if there was no miscarriage of justice.
(3) It is pertinent to point out in this respect that a failure to comply with the mandatory provisions of Section 165 of the Act does not vitiate a trial if no miscarriage of justice has actually occurred.
(4) It seems to me from the foregoing leading cases relevant to the issue that both the view that a mere failure to take a plea, after a charge has been amended, vitiate the trial and the contrary view that such failure does not vitiate the trial if no significant miscarriage of justice has actually occurred have the overwhelming support of this court.
(5) It appears that until such conflict of opinions has been resolved by this court, sitting as a full court, each justice is entitled to make his choice. I, for my part, decline to associate myself with those cases in which, with lamentations, substantial justice was sacrificed on the altar of mere technicality, Accordingly, I would prefer to endorse those cases which firmly laid down that a failure to comply with the provisions of Sections 164 and 165 of the Act after a charge has been amended does not vitiate the trial if no substantial miscarriage of justice has actually occurred.
(6) Relying on the authority of the cases that I think state the law correctly, one may say that by virtue of the proviso to Section 26(1) of the Supreme Court Act 1960, this court dismisses an appeal in Criminal cases from a court sitting as a court of first instance if this court thinks there has been no miscarriage of justice.
(7) In formulating the test which enables the court to say whether there has been no substantial miscarriage of justice the court applied the test used in the Privy Council which, when modified to fit the circumstances of the case in hand, is whether on a fair consideration of the whole proceedings, the court must hold that there is a probability that the error, to wit the failure to call upon the Appellant to plead to the amended charge turned the scale against the appellant.
(8) This court shall apply Part V of the Supreme Court Act 1960 on the hearing of Appeals in Criminal cases from the Federal Court of Appeal and may exercise any power that could have been exercised by the latter court. Sections 29 and 30 of the Act.
(9) It may be observed that the words of the Section 20(1) of the Federal Court of Appeal Decree 1976 are identical with Section 26(1) of the Supreme Court Act. It is therefore legitimate to apply to the Court of Appeal Decree Proviso the test used in the application of the proviso to Section 26(1) of the Act.
(10) Applying that test to the case in hand, it has not been suggested that the Appellant was in any manner embarrassed or prejudiced by the amendment or by the error to take his plea to the amended charge. The evidence shows that the appellant never denied killing the deceased. his defence of self-defence was rightly rejected, in my view by the trial court. under the circumstances, no reasonable person would conclude that there is a probability that the error in failing to call on the Appellant to plead to the amended charge turned the scale of justice against him.
(11) I would not subscribe to allowing this appeal and remitting the case for a retrial merely for the purpose of enabling the appellant to plead to the amended charge. To me, it is not doing substantial justice to the Appellant to put him to the ordeal of a retrial under the circumstances of the case. It is also not doing substantial justice to the society to burden it with the expenses of a retrial and the inconveniences that the witnesses may suffer.
(12) Accordingly, I am of the opinion that although the point raised by the learned Counsel for the Appellant is technically correct, no substantial miscarriage of justice has actually occurred.
Appeal dismissed.
N.Oyetunde for the Appellant
G.C. Okeke-D.P.P. Anambra State with him C.A. Anozie-S.S.C. for Respondent.
Cases referred to
1. Afeheh Humbe v. The State (1974) AUNLR (Part 1) 355
2. Attorney-General Wester Region v. Raimi Adisa (1966)NMLR 144.
3. Bisiriyu Shoaga v. R (1952) 14 WACA 22.
4. Commissioner of Police Mid-Western Nigeria v. Layinka Akpata (1967)1 All NLR 235.
5. Dennis Reid v. R(1979) 2 WLR 221.
6. Echeazu v. Commissioner of Police (1974) 1 All NLR 260.
7. Edun v. Inspector General of Police (1966) 1 All NLR 17.
8. Eronini v. R(1953) 14 WACA 366.
9. Jacob Fagbemi v.I.G.R. (1955) 15 WACA 43.
10. Jones v. Police (1960) 5 F.S.C. 38.
11. Joseph Okosun v. The State (1979) 3 4 S.C. 36.
12. Okwechime v. Police (1956) 1 F.S.C. 73.
13. Oruche v. Commissioner of Police Norther Nigeria (1963) 1 All N.L.R. 262.
14. Police v. Fox (1947) WACA 215.
15. Rv. Abodundu & I Ors (1959) 4 F.S.C. 70.
16. Rv. Aderogba (1960) 5 F.S.C.212.
17. Rv. Gibson (1877) 18 QBD 537.
18. Rv. Marsham, Ex. parte Lawrence (1912) KB &362.
19. Rv. Michael Ogunremi (1961) 1 All N.L.R467.
20. Rv. Richard Pepple & Anor (1949) 12 WACA 441.
21. Rv. Roy Williams (1978) QB 373.
22. Rv. Rufai Alli & Anor (1949) 12 WACA 432.
23. Rv. Shallabi (1935) 2 WACA 363.
24. Rv. Shodipo (1948) 12 WACA 374.
25. Rv. Thompson (1913) 9 C.A.R. 252.
26. Rv. Tuttle (1929) 2 C.A.R.
27. Sele Eyorokoromo & Anor v.The State (1979) 6-9 SIC 3.
28. The Secretary of State Defence v. W.A.R.N. (1968) 3 W.L.R. 609.
29. The State v. Onubogu & Anor (1974) 9 S.C.1.
30. Youngman v. Commissioner of Police (1959) 4 F.S.C. 283.
Statutes referred to:-
1. Adaptation of Laws (Judicial Provisions) Order 1955 (EN 47 of 1955).
2. Criminal Appeal Act of England 1907.
3. Criminal Code (Cap.30 Laws of Eastern Nigeria).
4. Criminal Procedure Law (Cap 31 Laws of Eastern Nigeria).
5. Federal Court of Appeal Decree No. 43 of 1976
6. Federal Supreme Court (Appeals) Ordinance 1955.
7. Nigerian (Constitution) Order in Council, 1954, No. 1146.
8. Penal Code.
9. Supreme Court Act 1960.
10. West African Court of Appeal Ordinance.
IRIKEFE, J.S.C:-The Appellant herein was charged under Section 319(1) of the Criminal Code (Cap. 30-Laws of Eastern Nigeria) with having, on the 8th day of November, 1974 at Mata Obofia Awgu, in the Enugu Judicial Division, murdered one Oriaku Ojioma, alias Oriaku Ojioma Obu alias Oriaku Oji. He was tried by Okagbue, J. (as he then was) in the High Court of the East Central State of Nigeria and at the end thereof was convicted and sentenced to death. He then appealed unsuccessfully to the Court of Appeal against his conviction on a number of grounds, none of which is relevant for the purpose of this final appeal.
The short point raised in this appeal is whether, as contended for the appellant for the first time in this court, his trial is rendered null and void on the ground of non-compliance with Section 164 of the Criminal Procedure Law (Cap. 31-Laws of Eastern Nigeria).
The non-compliance relied upon came about when the charge on which the appellant was tried was amended, as the printed record shows, twice. Page 10 lines 18/20 of the transcript of evidence reads as follows:-
"At this point, Amaefuna applies under S.163 of the Criminal Procedure Law to amend the information by adding the word Obu to the name of the murdered person so that it will read Oriaku Ojioma Obu-Granted.
Adjourned to 12th March, 1976."
Section 163 of the Criminal Procedure Law (Cap.31-Laws of Eastern Nigeria-1963) under which the purported amendment was made reads:-
"Any Court may alter or add to any charge at any time before judgment is given or verdict returned and every such alteration or addition shall be read and explained to the accused."
The above section is followed by 164 with which this appeal is directly concerned. Section 164(1) thereof provides:-
"If a new charge is framed or alterations made to a charge under the provisions of Section 162 or 163 the Court shall forthwith call upon the accused to plead thereto and to state whether he is ready to be tried on such charge or altered charge."
Section 165 provides:-
"When a charge is altered by the court after the commencement of the trial the prosecutor and the accused shall be allowed to recall or resummon any witness who may have been examined and examine or cross-examine such witness with reference to such alterations."
The transcript is silent on compliance with the mandatory provisions of Sections 163, 164 and 165 carried above and indeed, learned Counsel for the respondent was prepared to concede in his brief that there had been non-compliance. He, however, went on to argue that such non-compliance, should be treated as trivial and that in any case, it had not occasioned a miscarriage of justice.
The first amendment adverted to above is followed by the evidence of P.W. 9 (Dr Anthony Chukwuemezie Okafor) who testified to having exhumed the body of the deceased six months after its burial and of autopsy thereon, resulting in his establishing the cause of death.
The testimony of P.W. 9 brought the case of the prosecution to a close and immediately thereafter, the appellant gave evidence on oath in his defence. In doing so, his counsel adopted the unusual procedure of getting the appellant to admit the statement (Exhibit "A") which the latter had made to the police as the sum-total of his defence.
This procedure was clearly wrong and this court has consistently deprecated it and insisted that in every case, an accused person standing his trial should be allowed to give his evidence anew on oath in the form of a narrative. See R.V. Rufai Alli & Anor. (1949) 12 W.A.C.A. 432 at 434-and The State vs. Onubogu & Anor. -19749 S.C. 1 at p. 22/23.
The transcript then shows that Nnwannah, learned Counsel representing the appellant, indicated that he had no witnesses to call and thereafter he began to address the court on the inadequacy of the evidence produced by the prosecution. In the course of this address, counsel criticised the confusion arising from the number of names with which the deceased had been labelled in the evidence, namely-
(a) Oriaku Ojioma
(b) Oriaku Oji and
(c) Oriaku Oji Obu.
It was apparently as the result of this criticism that Amaefuna, the learned prosecuting counsel was obliged to make a last-minute application for a further amendment of the charge. This appears at page 13 of the transcript (Lines 14(20) as follows:
"Amaefuna-Would like to amend the information. Relies on S.163 of the Criminal Procedure Law. Would like to add after the words Oriaku Ojioma in the particulars of offence the following words-alias Oriaku Oji Obu alias Oriaku Oji-Court-Granted.
Amended charge read to the accused person.
Plea-Not guilty."
On the above state of affairs, the trial court was faced with a situation where the charge was amended twice in the course of the trial. In the case of the first amendment, the transcript shows as I had earlier stated, that there had been non-compliance with the mandatory provisions of Sections 163, 164 and 165 of the Criminal Procedure Law. Between that amendment and the last one, there is to be found the testimony of P.W. 9(Dr Okafor) and the defence of the appellant.
The question that immediately arises is what bearing has the above testimony on the case as a whole? The answer to this is to be found in the judgment of the learned trial Judge itself. It would be safe to say that without the evidence admitted after the first amendment, there would have been no material before the court on which the conviction of the appellant could have been founded.
For the appellant it was submitted that this court should merely declare the proceedings null and void and that this was not an appropriate case in which an order for a retrial should be made. While counsel for the respondent would be content with an order for a retrial as a last resort, he invited us to regard the non-compliance disclosed here as a matter of form or technicality which did not affect the merit of the case and that in any event, there had been no substantial miscarriage of justice. Our attention was drawn to the proviso to Section 20(1) of the Federal Court of Appeal Decree-No.-43 of 1976-as authority for the latter proposition. This provides as follows:-
"The Court of Appeal on any appeal under this Part against conviction or against an order of acquittal, discharge or dismissal, shall allow the appeal if it thinks that the verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court below should be set aside on the ground of a wrong decision on any question of law or that on any ground there was a miscarriage of justice and in any other case, the Court shall, subject to the provisions of subsection (3) of this section and section 21, dismiss the appeal:
Provided that the Court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."(Italics mine.)
I should like to deal first with the circumstances under which the above proviso can be prayed in aid. A provision similarly worded (the proviso to Section 4(1) of the Criminal Appeal Act, 1907 of England) was considered in the case of R.v. Thompson-(1913)9 C.A.R. 252. At page 260 of the report in that case, Lord Isaacs L.C.J. reading the judgment of the court had this to say:-
"One of the objects of Section 4 was to prevent the quashing of a conviction upon a mere technicality which had caused no embarrassment or prejudice. Whilst giving the right of appeal upon any wrong decision of any question of law, the object of the legislation was that justice should be done in spite of a wrong decision, and that the Court should not interfere if it came to the conclusion that, notwithstanding the wrong decision, there had been no substantial miscarriage of justice." (Italics mine.)
It seems to me that in deciding upon whether there had been a substantial miscarriage of justice, the Court of Appeal dealing with the issue raised must be satisfied that it is not one of a mere technicality which had caused no embarrassment or prejudice to the appellant. Is this the situation in the case in hand? It is my view that it would be facile in the extreme to argue that an appellant who had been denied the protection enshrined in the laws of this country for his benefit under Sections 163, 164 and 165 of the Criminal Procedure Law, had not been embarrassed or prejudiced. In the case in hand, the evidence of the 9th Prosecution Witness and the appellant taken in breach of the above provisions are clearly inadmissible and if this evidence is excised from the proceedings there would be nothing left upon which to sustain a trial. In short, justice had not been done and the question of its miscarriage, in my view, becomes irrelevant.
I agree that some of these provisions may prove a nettlesome humbug, but in such a situation, what is called for is remedial action through the legislative process. It is not the business of a court to seek to ignore the existence of a legislation, until it is repealed.
The pitfalls inherent in the provisions under consideration were adverted to by the West African Court of Appeal in Eronini vs. The Queen (1953) 14 W.A.C.A. 366-when that court at page 369 of the report stated as follows:-
"We have reached this conclusion with great reluctance for we fear that it may result in a miscarriage of justice, but nevertheless so long as the provisions of the Criminal Procedure Ordinance remained the law effect must be given to them and non-compliance therewith must carry its inevitable consequences. The fact that this Ordinance is particularly rich in traps for the unwary cannot affect its force nor its consequences. Under more usual forms of enactment in such matters the present position could not have arisen. It is to be regretted that Crown Counsel felt it desirable to apply for the entirely unnecessary amendment on the 28th July; it is regrettable that the learned Judge inadvertently failed then to call upon the appellant to plead to the altered charge, and it is equally regrettable that this omission not having been observed the proceedings were not thereupon commenced de novo. This court has on a number of occasions in the last few years drawn attention to the defects of this Ordinance and the dangers arising there from. Until such time as it may be found possible to revise its provisions we can do no more than warn those who are obliged to comply therewith to approach their task with the utmost caution lest as in this case its peculiarities lead to a miscarriage of the proceedings and perhaps of justice."
That was 26 years ago and it is common knowledge that nothing has happened since then. Law, like all manmade institutions, must eventually yield to societal strains and stresses, and it may well be that, with the passage of time, the present inbuilt safeguards in our Criminal laws may be regarded as archaic and indeed, to have outlived their usefulness; in which case, they would be jettisoned by legislative action.
This court has in a long line of authorities enshrined the view that, whenever a charge is amended during a trial, a new charge is thus constitued, in which case, a fresh plea from the accused, is an indispensable requirements. Failure to obtain a new plea as laid down under Section 16