IN THE SUPREME COURT OF NIGERIA
On Wednesday, the 21st day of March 1979
JOSEPH OKOSUN ............ APPELLANT
THE STATE ............... RESPONDENT
The appellant was the accused person in an action brought by the State before the Robbery and Firearms Tribunal of the then Mid-Western State of Nigeria (now Bendel State). The charge read that the accused was charged with robbing one Igbinovia of a "tape recorder" instead of "record player" valued at one hundred Naira on 20th September 1973, armed with a knife.
At the trial in the High Court the prosecution adduced evidence with the intention of proving the allegations contained in the charge. The appellant's counsel however contended that since P.W.1 who alleged that the accused committed the offence, only came into the room after the "record player" in question had disappeared and found the accused, and furthermore since the door of the room leading to the rear of the premises was unlocked, there was no evidence showing that it was definitely the accused who committed the offence.
The Tribunal later adjourned for judgment. On the resumed date, during delivery of the judgement but before conviction of the appellant, the tribunal amended the charge to read "record player." It remarked that the amendment was minor since the appellant was in no way misled or prejudiced by the error on the charge. Considering the timing of the amendment, the tribunal deemed it unnecessary for the appellant to enter a fresh plea to the charge which it amended at its own instance.
The appellant, dissatisfied with the tribunal's judgment appealed to the Federal Court of Appeal which dismissed the appeal. The appellant has now appealed to the Supreme Court against this dismissal.
(1) As the trial of this charge commenced on 9th October 1975, it seems incontestable that the proceedings are governed by the Criminal Procedure Act (Cap. 43) the provisions of which are made applicable to tribunal proceedings by virtue of Decree No. 29 of 1974 which came into force on 1st September, 1975.
(2) S. 163 of the Criminal Procedure Act deals with the scope of powers of a court of trial to interfere with a charge after an accused person shall have been arraigned for a trial. It seems implicit in the wording of the Section that a court purporting to act under the Section may not do so capriciously, as for example amending an existing charge, without bringing the proposed amendment to the notice of the person standing trail and asking for his reaction to the amendment if any.
(3) The effect of non-compliance with the provisions of S. 164(1) of the Criminal Procedure Act which are designed to afford an accused person adequate safeguards in the event of an amendment under Sections 162 and 163 of the Act has rendered these proceedings null and void.
(4) There is no doubt that a fresh plea is an essential and indeed, an indispensable element in the trial of a new charge, which is what an amendment, no matter how trifling in nature, does to an existing charge, before an amendment.
(5) On the facts, we are also far from satisfied that the inference of guilt against the appellant drawn from the evidence of prosecution witnesses by the tribunal is the only available inference.
F.O. Akinrele for Appellant
G.O.U. Okungbowa, Legal Adviser, Ministry of Justice, Bendel State-for Respondent.
Cases referred to:
(1) Raimi Adisa v. Attorney-General of Western Nigeria (1966) NMLR 144.
(2) Echeazu v. Commissioner of Police (1974) 2 S.C. at page 55.
(3) Edun & Others v. Inspector General of Police (unreported) S.C./494/1965.
(4) Edmund Umez Eronini v. The King, 14 WACA 366 at p. 368 and 369.
(5) Odidika & Another v. The State (1977)2 S.C. at pages 25 and 26.
(6) Qkwuchime v. Inspector General of Police (1956) 1 F.S.C. 73.
(7) R v. West 12 CAR 152.
Statutes referred to:-
(1) Criminal Procedure Act (ACP. 43) Laws of the Federation of Nigeria).
(2) Robbery and Firearms (Special Provisions) Decree (No. 47 of 1970).
(3) Robbery and Firearms (Special Provisions) Decree as amended by Decree No. 29 of 1974.
IRIKEFE, J.S.C.: Before the Robbery and Firearms Tribunal of the then Mid-Western State of Nigeria (now Bendel State) the above appellant was charged as follows:-
"That you Joseph Okosun (m) on the 20th day of September, 1973 at Benin City in the Mid-Western State of Nigeria robbed one Amenaghawon Igbinovia (f) of a tape recorder values
N100 and at the time of the robbery you were armed with a knife and thereby committed an offence punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Decree "No. 47 of 1970."
For the prosecution, it was proved that in the morning of 20th September, 1979 when P.W.4 a civil servant, who lived at No. 32 Nosayaba Street, West Circular Road, Benin City was leaving for work, he left his junior sister, P.W.1 (the complainant) in the house. The door to the 4th P.W's apartment from the street was closed (but not locked). This door opened into 4th P.W's sitting room (parlour) while another door led from there into the rear of the premises. This door was similarly shut but not locked). Among the personal effects of P.W.4 in the sitting room that day, were a radiogram, a tape recorder and a record player.
The tape recorder and the record player were placed on top of the radiogram. P.W.1 remained in the sitting room for some time after P.W.4 had gone to work and at about 11.30am., she decided to go into her own room in the house. While there, she heard a noise coming from the direction of the sitting room and decided to go and investigate. On getting there, she saw the appellant standing close to the radiogram while the record player (one of the two items previously lying on top of the said radiogram) had been removed by someone unknown and placed near the front door.
At this point in time, the front door was still shut and when P.W.1 challenged the appellant about his presence in the sitting room, he brought out a knife and threatened to stab her with it if she uttered a word. P.W.1 thereupon quickly rushed out through the rear door, locked it from behind with a key which she kept with her. P.W.1 then rushed to the front of the house from the rear, held on to front door from the outside in an endeavour to prevent the appellant from coming out through it and began to shout. Her shouting attracted several persons to the scene. Among those who came to the scene were: P.W.2, P.W.3 and P.W.4. The people outside were able to see the appellant where he was in the sitting room through the louvres on the window.
While the appellant was still threatening to kill anyone who came near him, P.W.2 (one of those who ran to the scene and father of P.W.4) rushed to the rear of the premises to fetch an iron rod with which, after some struggle, he was able to dislodge from the appellant one of the knives he was holding.
The printed record the case shows that after the first knife had been smashed into two by the blow from P.W's iron rod, the appellant pulled out another knife, but this was also knocked out of his grip before he was eventually overpowered and held down. Shortly after this, the police who were brought to the scene by P.W.4, took the appellant away into custody.
The appellant testified to his defence and stated that he found himself at No. 32, Nosayaba Street in his attempt to trace the resident of a friend, a Lieutenant Olukoya of the Nigerian Army. He had stood at the front of this address after he had seen through a window of the house that someone in the sitting room was playing records. He had knocked on the front door which was opened by P.W.1. He asked if she could help him in regard to his quest for Olukoya and she suggested that he should sit down until the record then on the player came to an end. She had in the meantime assured him that some army officers lived behind her house.
When the record stopped playing, he and P.W.1 got up and came out into the street in order to commence the search for Olukoya. As they did this, it occurred to the appellant that P.W.1 bore a striking resemblance to someone he knew and he told her so. The apparently harmless remark drew anger from P.W.1 who, there and then, formed the view that the appellant was trying to take liberties with her. She stated that she was married and that it was a flagrant breach of their native custom for a married woman to be spoken to in the manner that the appellant had done.
She then began to shout, calling appellant a "thief" and all efforts by the appellant to apologise and remonstrate with her fell on deaf ears. The shouting by P.W.1 brought other persons to the scene and these others had assisted in forcibly taking him back to the sitting room of P.W.4. To the crowd then assembled P.W.1 falsely complained that he had tried to make love to her by force and also that he was a thief. It was only after P.W.4 had come home that the record player (the subject of the charge) was brought down from where it was placed near him and the allegation made that he had tried to steal it. In short, in the eyes of the appellant, the case made against him by the prosecution was fabricated.
The tribunal, after receiving the above evidence, listened to addresses by counsel and adjourned for judgment.
In its judgment, the tribunal accepted the case made by the prosecution and rejected that of the appellant. It accordingly convicted him and sentenced him to death either by hanging or by firing squad as might be deemed appropriate.
Before it convicted the appellant, the tribunal in the judgment thought it was necessary to amend the charge and came about this decision by stating as follows:-
"In the first place Miss Evbuomwan for the accused has urged us to hold that the charge is defective in that the subject matter of the robbery is said to be a tape recorder and also because the ownership of the stolen property is not alleged in the charge. We concede that the charge refers to the stolen property as a tape-recorder where the evidence shows clearly that it was a record player. This is a minor error which might have been amended by the prosecution. We hereby in this judgement amend the charge by substituting the words "record player" for the words "tape recorder." We consider the error as slight and we made the amendment because we are clear in our minds that the accused was in no way misled or prejudiced by the error. All the witnesses (except the 6th P.W. in "their evidence referred to it as a record player and said that 1st P.W. was playing it when he reached the house. So the accused knew all along that the charge was concerned with a record player."
It is plain from the foregoing, and in particular, from the timing of the amendment that the tribunal did not advert its mind to the necessity for the appellant being made to plead to the charge which it amended at its own instance.
In his appeal to the Federal Court of Appeal, the appellant rested his case on two grounds, namely
(a) That the tribunal erred in law in not calling upon the appellant to plead to the charge after amending the charge by substituting the words "record player" for "tape recorder."
(b) That the failure of the appellant to plead to the charge as amended renders the whole proceedings null and void."
Before that court, it was argued on behalf of the appellant that, once the tribunal found it necessary to amend the charge from what it was when the plea of the appellant was recorded at the commencement of the trial, the provisions of Section 163, 164 and 165 of the Criminal Procedure Act (Cap. 43 Laws of the Federation of Nigeria) applied and should have been complied with by the tribunal.
For the respondent (i.e. the prosecution) it was submitted:-
(a) that the Criminal Procedure Act did not apply to proceedings under the Robbery and Firearms (Special Provisions) Decree (No 47 of 1970) and
(b) that in any case, the amendment made was trivial in nature and there was no proof that the appellant had suffered any prejudice or been taken by surprise.
With respect to submission (a), Counsel purported to rely on the provisions of Section 6 of the Robbery and Firearms (Special Provisions) Decree (No 47 of (1970) as amended by Decree No 29 which came into force on 1st July, 1974. It reads:-
"(6) (1) Attorney-General of the Federation shall, with the approval of the Federal Executive Council, made rules as to the procedure to be adopted in prosecutions for offences under this Decree before a tribunal and, without prejudice to the generality of the foregoing provision, shall prescribe by such rules the manner of commencement of proceedings before the tribunal, the forms to be used in such proceedings, and generally for the better carrying effect of the provisions and purposes of the Decree."
The Federal Court of Appeal in dealing with the conflicting submissions did not appear to be in any doubt.
(a) that the amendment made was one of substance and
(b) that the proceedings would have been rendered a nullity if the Criminal Procedure Act applied to the trial before the tribunal.
The court dealt with the above issues thus:-
"As to the effect of failure to call upon an appellant to plead to an amended charge and to say whether he is "ready to be tried thereon, we think that Section 164 of the Criminal Procedure Act is explicit on the point."
In Edmund Umez Eronini v. The King 14 W.A.C.A. 366 at 368 and 369 the West African Court of Appeal held that the amended charge constitutes a fresh charge and failure on the Judge to take fresh pleas and ask the accused whether he was ready to be tried on that charge was fatal, and the appeal was allowed.
For this see also the judgement of the Supreme Court of Nigeria in Raimi Adisa v. Attorney-General, Wester Nigeria (1966) N.M.L.R. 144. We think that if the Criminal Procedure Act applied to the proceedings before the Tribunal the proceedings would have been null and void because the charge was amended and the provisions of Section 164 of the Criminal Procedure Act were not complied with. It has been suggested by the learned Principal State Council relying he said upon the judgment of the Supreme Court in SC.494/1965, the case of Edun and Ors. (unreported) decided on the 14th January, 1966 that as the amendment was merely trivial failure to get the appellant to plead thereafter could not vitiate the proceedings. Unfortunately we have not had the opportunity to see a copy of the said judgment.
All we can say is that it appears clear to us that a person charged with stealing a tape recorder could not have been rightly convicted of stealing a record player, unless the charge was amended. As the amendment was necessary to save the charge from failing completely it would not in our view be right to regard the amendment as trivial.
"We hold it was a material amendment."
Having said this, the Federal Court of Appeal proceeded to dismiss the appellant's appeal, since in its view, and having regard to the provisions of Section 6 of the Robbery and Firearms (Special Provisions Decree No 47 of 1970), as amended by Decree No 29 of 1974 it was not satisfied that the provisions of the Criminal Procedure Act had any relevance to the proceedings before the tribunal and, consequently, the failure to call upon the appellant to plead afresh to the amended charge would not vitiate the proceedings.
The appellant has now appealed to this Court from the dismissal of his appeal by the Federal Appeal Court.
Having regard to the meticulous manner with which the Federal Court of Appeal dealt with the issues raised before it, it is plain that the only unresolved issue of law is whether that court was right to ruling that the Criminal Procedure Act did not apply to the proceedings before the tribunal.
Learned Counsel representing the appellant made this point in the brief he filed in respect of the appeal to this Court when he stated thus:-
It appears from the record of proceedings that the attention of the Court was not drawn to the Provisions of the Robbery and Firearms (Procedure) Rules 1975 which "came into operation on 1st September, 1975 and known as LN 56 of 75. In the rules the Criminal Procedure Act Cap. 43 of Nigeria was made applicable to the proceedings of the Robbery and Firearms Tribunal. Section 18 of the Rules states as follows:-
"Where those rules contain no provision in respect of any matter relating to or connected with the trial of offences under the Decree the provisions of the Criminal Procedure act shall, with such modifications as the circumstances may require, apply in respect of such matter to the same extent as the apply to the trial of offences generally."
The appellant therefore will contend that the decision of the Court of appeal is wrong in law and will argue the following grounds of appeal and for which leave will be and is hereby sought:
"That the Court of Appeal erred in law in holding that the Provisions of the Criminal procedure Act Sec. 164 does not apply to the proceedings of the Robbery and Firearms (Special Provisions) Decree-1970 when the Robbery and Firearms Tribunal Rules 1975 expressly says that it does and there is no other express provision dealing with the points of issue."
The appellant will further ask that the appeal be allowed and his conviction set aside on the following grounds:
(a) That by virtue of the Criminal procedure Act applicable to the proceedings in the lower court, it was mandatory on the court to take the pleas of the appellant after an amendment to the charge; Section 164 of the Criminal Procedure Act.
(b) That failure to do so renders the proceedings null and void in virtue of the decision of the West African Court of Appeal in the case-R v Eronini-1953 14 W.A.C.A. "
In the oral argument before us, the appellant's Counsel laid greater emphasis on the points he had made in his brief and drew the attention of the Court to the case of Adisa v. The Attorney-General of Western Nigeria-(1966) N.M.L.R. 144 in which the decision of R v. Eronini (Supra) was cited with approval by this Court.
On the facts, Counsel argued that it is impossible from the printed record to say who approved the record player from where it was alleged to be by P.W.1., to where it was ultimately found close to the outer door of the sitting room of P.W.4.
The gist of Counsel's argument was that anyone, other than the appellant, could have removed the record player as there was evidence that both doors leading to the sitting room of P.W.4 were merely shut and not locked with a key. The inference drawn by the tribunal that it was the appellant who removed the record player, was in the submission of Counsel, not the only available inference.
Learned Counsel representing the respondents conceded, rightly in our view, that the Federal Court of Appeal erred in holding that the Criminal Procedure Act did not apply to the instant proceedings. See also Odikika and Anor. v. The State-1977 2 S.C. at pages 25 to 26, where Rule 18 of the Robbery and Firearms Tribunal Procedure) Rules 1975, making the Criminal Procedure Act applicable to proceedings before a tribunal, was invoked by this Court. Having done this, he went on to argue:-
(a) that the amendment made was trivial
(b) that there had been no miscarriage of justice and
(c) that the appellant had not been misled.
Counsel then cited the unreported case of Ebun v. I-G. of Police SC.494/1965 decided on 14th January, 1966 as authority in support of the proposition that, where an amendment is trivial, non-compliance with Section 164 of the Criminal Procedure Act would not vitiate the proceedings.
As the trial of this charge commenced on 9th October, 1975 it seems to us incontestible that the proceedings are governed by the Criminal Procedure Act (Cap. 43) the provisions of which were made applicable by virtue of Decree No. 29 of 1974 where came into force on 1st September, 1975.
Section 163 of the Criminal Procedure Acts 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."
Having amended the charge as above, the record of the case shows that the amended charge was read and explained to the accused who elected summary trial and pleaded not guilty to all the counts. Thereafter, counsel for the defence was recorded as not desiring to recall or resummon any of the prosecution witnesses.
Counsel for the prosecution was similarly recorded as not desiring to recall any of the prosecution witnesses.
The steps taken by the Magistrate after the amendment, were aimed at complying with the provisions of Section 164 and 165 of the Criminal Procedure Act. The appellant was convicted and on appeal, it was argued on his behalf that, not having elected to call evidence he could not within the intendment of Section 165 recall any witness as he had called none.
The argument here was that this appellant was prejudiced and that this prejudice arose from circumstances clearly beyond his control.
The submission was rejected and this court in dismissing the appeal observed as follows:-
"We would venture to express the opinion that while Section 164 and 165 of the Criminal Procedure Act are designed to afford an accused person adequate safeguards in the event of an amendment under sections 162 and 163 of the Act, it is clearly not the intention of the framers of the Act, that the said Section should provide such an accused with a gratuitous "escape route" to freedom in the face of overwhelming evidence.
Section 164(1) with which this case is concerned reads:-
"If a new charge is framed or alteration made to the 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 effect of non-compliance with the provisions of the above cited section is to render the trial a nullity. See Eronini v. The Queen 14 W.A.C.A. p. 360 and Adisa v. A-G. Western Nigeria (1966) N.M.L.R. p.144. The record here shows that the tribunal did not advert its mind to compliance with the provisions of the section. We have since had the benefit of reading the unreported decision in Edun v. I-G. of Police-SC.494/1965 and contrary to the contention of the respondents' counsel, the amended charge in that case was read and explained by the Magistrate to the appellants before recording their plea. The only distinction made by the court was that, as the appellants were represented by counsel, it would have been open to them to say whether they desired an adjournment or were prepared to continue with the trial after their plea to the amended charge, as was in fact the case. The question of the trivial nature of the amendment or of a possible miscarriage of justice did not, therefore, arise.
We are not in any doubt that a fresh plea is an essential, and indeed, an indispensable element in the trial of a new charge, which is what an amendment, no matter how trifling in nature, does to an existing charge, before the amendment.
Non-compliance with the provisions of Section 164(1) of the Act has rendered these proceedings null and void.
But this is not the end of the matter. On the facts, we are also far from satisfied that the inference of guilt against the appellant, drawn from the evidence of the prosecution witnesses by the tribunal, is the only available inference.
In view of the above, we decline to order a retrial as was done in Raimi v. A-G. Western Nigeria.
This section deals with the scope or powers of a court of trial to interfere with a charge after an accused person shall have been arraigned for trial. It seems to us implicit in the working of the section that a court purporting to act under the section may not do so capriciously, as for example, by amending an existing charge, without bringing the proposed amendment to the notice of the person standing trial and asking for his reaction to the amendment, if any.
In Okwechime v. I-G of Police (1956) 1 F.S.C. 73-the appellant was charged before a Magistrate with committing an offence punishable under Section 100 of the Criminal Code. After the case of the prosecution had closed, a submission was made by Counsel for the appellant that no case had been made out for the appellant to answer, and the Magistrate adjourned the case to consider his ruling. In the course of his ruling, the Magistrate amended the charge to one punishable under Section 99 of the Criminal Code. The altered charge was read over to the appellant who there and then elected to be tried summarily and pleaded not guilty. The appellant was subsequently convicted on the altered charge.
On appeal, it was submitted that the Magistrate had no powers under Section 163 of the Criminal Procedure Act to substitute a new charge under Section 99 and that all he could do was to execute any amendment he desired under the original Section 100 as charged.
Jibowu, Ag. F.C.J. in delivering the judgment of the Federal Supreme Court at Page 74 of the report observed as follows:-
"The learned Judge was of opinion that the word 'alter' in the context means more than 'amend' and includes 'substitute'. With this view we respectfully agree. In view of the fact that new charges could, under this section, be added to the original one, it would be unreasonable to hold that alterations of the charge cannot be extended to the framing of a new charge in place of the original one."
The appeal in that case was dismissed.
In Echeazu v. Commissioner of Police (1974) 2 S.C. at page 55, the appellant an acting Principal Collector of Customs was charged before a Magistrate's Court with demanding the sum of £7,000 as a bribe in order to waive excise duty on 36 ambulances imported into Nigeria. The appellant was caught in a trap set by the police when part of the bribe demanded was being passed to him. In the course of the trial, the charge was amended to read 16 ambulances instead of 36. The requisite provisions of the Criminal Procedure Act were complied with by the Magistrate.
At the end of the prosecution's case, the appellant called no evidence and rested his case. In the course of writing her judgment, the Magistrate formed the view that the dispute was over 36 ambulances and not 16 and decided to amend the charge back to what it was, to read 36 ambulances. Before doing so, she invited the parties back to court and called upon counsel for both the prosecution and the defence to address her on the propriety of the proposed amendment. In a considered ruling, the Magistrate stated that the proposed amendment was within her competence under Section 163 of the Criminal Procedure Act and cited the case of R v. West 12 C.A.R. 152 (a decision of the Court of Criminal Appeal in England) as further authority in this regard.
She referred specifically to the following observation which appears at page 160 of the report in the case:-
"The learned Judge was, in our opinion, entitled to exercise his discretion in directing the amendment, but he clearly should have invited the parties, and in particular the defence, to express their views upon the matter before deciding to do so."
In the result, this appeal is allowed and the conviction of the appellant in these proceedings and the sentence are set aside. We had already ordered that he should be released forthwith from custody. He is not to be retried.
The foregoing are our reasons for allowing this appeal at the end of the hearing.