Afehe Humbe Vs The State (1974)

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COKER, JSC.

 The point raised by this appeal is of special importance for it involves a matter of criminal procedure which may in appropriate cases entail serious consequences. As for the present case itself, the facts are despicable and admit of no argument before this court.

The appellant was charged with and convicted of culpable homicide punishable with death in that the appellant, who had had a previous fight with his brother, returned after they were apparently pacified and later emerged with a knife with which he savagely stabbed his brother hacking him to death which took place instantaneously on the spot. He again returned into his room but later emerged with the knife still unsheathed and called on his brother before realising that he indeed was dead.   The charge on which he was tried reads as follows:-

“That you, Afehe Humbe, on or about the 24th day of March, 1973 at Ugondo village near Donga in Wukari Division within the Gboko Magisterial District, you did commit culpable homicide punishable with death in that you caused the death of ISHOR HUMBE (m) by doing an act to wit you stabbed him with a double edged knife and caused a wound which penetrated his chest cavity with the intention of causing his death and thereby committed an offence punishable under Section 221 of the Penal Code.”

At his trial, five witnesses gave evidence for the prosecution and at the end of the evidence of the 5th P.W., P.C. Ayila Kosu, No. 34461 of the Nigeria Police, Wukari, the learned State Counsel who appeared for the prosecution announced that that was the case for the prosecution and that he would proceed to sum up the case for the prosecution. He then made the following application – “Golu- I humbly make an application for amendment of the charge. I make it under S. 181 of the C.P.C. I am sorry it should be S. 208 (c) of the C.P.C. I want the last section to read 211 (a) instead of s. 221.”  

The appellant was represented by counsel and it does not appear from the records that learned counsel representing the appellant was ever consulted about the proposed amendment for, as soon as the application was made, as shown above, what happened thereafter is recorded by the learned trial Judge as follows:- “Court – The application is granted. In the charge Section 221 (a) shall be substituted for Section 221.” Learned State Counsel then summed up the case for the prosecution and the appellant gave evidence in his own defence.

Thereupon learned counsel for the appellant addressed the court at length suggesting for the appellant a defence of provocation in the course of and contemporaneously with a sudden fight and asking that his client be convicted only on some alternative sections of the Penal Code.

He did not breathe one word concerning the amendment of the charge and the way in which it was carried out. Eventually, in the course of a reserved judgment, the learned trial Judge convicted the appellant and sentenced him to death.

Hence this appeal. Before us on appeal the only ground of appeal canvassed reads as follows:- “That the whole proceedings were a nullity in that I was convicted and sentenced on an amended charge which was neither read nor explained to me and to which I made no plea in accordance with Section 208 (2) of the C.P.C.”

Learned counsel for the appellant submitted that the provisions of Section 208 of the Criminal Procedure Code are peremptory and that non-compliance with those provisions implied that the appellant never pleaded to the charge or offence for which he was tried and in respect of which he was convicted.

In answer to this argument the learned Acting Director of Public Prosecutions (Benue-Plateau State) who opposed the appeal submitted, firstly, that there was in fact no amendment of the charge in the true sense of that exercise and that in any case having regard to the nature of the amendment and the evidence in the case, the court should apply the provisions of Section 382 of the Criminal Procedure Code.

It is obvious that the charge against the appellant and to which he had pleaded at the inception of the trial was one under Section 221 of the Penal Code simpliciter. That Section provides as follows:- “221. Except in the circumstances mentioned in Section 222 culpable homicide shall be punished with death – (a) if the act by which the death is caused is done with the intention of causing death; or (b) if the doer of the act knew or had reason to know that death would be the probable and not only a likely consequence of the act or of any bodily injury which the act was intended to cause.”

It is also obvious that at the stage when the trial commenced, that particular sub-section of Section 221 under which the charge was laid, was not shown on the charge. The appellant, although represented by learned counsel all the way, pleaded to the original charge as laid and then, and not until now, did not complain of its inadequacy. In making the application for amendment, learned State Counsel relied on Section 208 of the Criminal Procedure Code. That section reads as follows:-   “208(1) Any court may alter or add to any charge or frame a new charge at any time before judgment is pronounced.

(2) Every such alteration or addition or new charge shall be read and explained to the accused and his plea thereto shall be taken.” It is not in dispute that after the amendment of the charge, Section 208 (2) was not complied with by the court.   As we understand the argument of the learned Acting Director of Public Prosecutions, he is of the opinion that there had in fact been no amendment or that there should have been no need for any amendment. We do not accede to the argument that there was no amendment. Learned counsel who applied for the insertion of the word “a” in brackets after Section 221 in the original charge, did state that he was applying for an amendment of the charge and the learned trial Judge himself made it plain that he was granting an application for an amendment. The Judge’s order is that – “in the charge, Section 221(a) shall be substituted for Section 221.”