THE QUEEN (RESPONDENT)
MICHAEL OGUNREMI (APPELLANT)
(1961) All N.L.R. 487
Division: Federal Supreme Court
Date of Judgment: 11th August, 1961
Case Number: FSC 205/1961
Before: Brett, AG. C.J.F.
Bellamy, AG. C.J. Lagos
Appeal from High Court (West)
The appellant was charged on an information alleging Rape contrary to section 229 of the Criminal Code. Section 229 does not deal with Rape but with a completely different offence. At the end of the hearing, Counsel for the Defence pointed out the error. Counsel for the Prosecution sought and was granted an amendment of the Information by substituting section 358, the applicable section, for section 229. The defence did not object to the amendment. The trial court ruled that no fresh plea to the amended Information was necessary and convicted and sentenced the accused. Accused appealed upon the ground, inter alia, that the trial Judge erred in law in not taking a fresh plea and asking the appellant if he was ready to be tried on the amended charge as required by section 164 of the Criminal Procedure Ordinance, Cap. 43.
Omission on the part of a Trial Judge to call upon an accused to plead to a charge which is altered by amendment during the course of trial, renders conviction and sentence thereon a nullity.
Appeal allowed; Conviction quashed; Acquittal entered.
Cases referred to:-
Fox v. Police, 12 W.A.C.A. 215.
R. v. Eronini, 14 W.A.C.A. 366.
Ordinances referred to:-
Criminal Code, Cap. 42, sections 229, 358.
Criminal Procedure Ordinance, Cap. 43, section 164.
APPEAL from High Court (West).
Agbaje-Williams (with him, Akinyede) for the Appellant.
Eboh, Senior Crown Counsel, for the Respondent.
Brett, Ag, C.J.F. (delivering the Judgment of the court):-The appellant was charged in the High Court of the Western Region on an information alleging Rape contrary to section 229 of the Criminal Code. After all the evidence had been heard defending Counsel in his closing address pointed out that section 229 of the Criminal Code did not deal with Rape, but with a completely different offence. Prosecuting Counsel invited the Judge to amend the information by substituting a reference to section 358 of the Criminal Code and this was done without objection from the defence. The Judge recorded that he thought it unnecessary to take a fresh plea, because the amendment did not bring in a fresh charge, and proceeded to deliver Judgment convicting the appellant. The first ground of appeal is that the Judge erred in law in not taking a fresh plea and asking the appellant if he was ready to be tried on the amended charge.
It is not suggested that the appellant was in any way prejudiced by this failure to comply with section 164 of the Criminal Procedure Ordinance, but the decisions in Fox v. Police 12 W.A.C.A. 215, and R. v. Eronini 14 W.A.C.A.366, leave us no choice but to hold that the omission rendered the conviction and sentence a nullity, and they must be set aside. Mr Eboh invited us, if we felt obliged to allow the appeal on this ground, to make an order for retrial, but having listened to arguments on both sides as to the merits of the case we do not propose to do so. The appeal is allowed, the conviction is quashed, and a Judgment and verdict of acquittal are entered.
Appeal allowed: Conviction quashed: Acquittal entered.