Nwafor Okegbu V. The State (1979) LLJR-SC

Nwafor Okegbu V. The State (1979)

LawGlobal-Hub Lead Judgment Report

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) underwhich 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 crossexamine 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.-1974 9 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 Proceudre 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.”

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) 9C.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. ”

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. CA. 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 omimsslOn 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 therefrom. 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 164(1) of the Criminal Procedure Law, would render the trial null and void. See R. v. Eronini (supra), R. v. Ogunremi – 1961 A.N.L.R. 467, A. G. Western Region vs. Raimi Adisa-1966 N.M.L.R.144at146 and Joseph Okosun vs. The State -19793 &4S.C. 36 at 52.

In the OLOSUN case which was the last in the series this Court declared as follows:

“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.”

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 happen: , he is technically outside the pale of the court’s jurisdiction. 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 found 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 a fresh plea obtained from him. Failure to do so would vitiate the trial. See Police v. Fox -(1947)12 W.A.C.A. 215, Okwechime vs. Police-(1956)1 F.S.C. 73 and Jones vs. Police- (1960) 5 F.S. C. 38.

On the other hand, 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. See – Bisiriyu Shoaga vs. The King-(1952) 14 W.A.C.A. 22 and Edun vs. I.G. of Police- (1966) 1 ALLN.L.R.17. The decision of this court in Afehe Humbe vs. TheState(1974) 1 ALL N.L.R. (Part I) 355 which I have had the privilege ofreading in the very brilliant dissenting opinion of my learned brother, Mohammed Bello, does not, with respect, appear helpful in the case in hand. As the facts in that case are clearly set out in the decision of my learned brother aforesaid, I do not propose to repeat them here. Suffice it to say that, that case could be distinguished on the ground that the purported amendment was no amendment at all. In view of the foregoing, I would need more presuasion to hold that this is a case which calls for the application of the proviso to Section 20(1) of the Federal Court of Appeal Decree – No. 43 of 1976.

I accordingly hold that 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. See – The Queen vs. Abodundu & Ors. (1959) 4 F.S.C. 70 at 73, A. G. vs. Raimi Adisa (Supra) and Sele Eyorokoromo & Anor. vs. The State-(1979)6-9S.C. P.3.

In the result, the trial in this matter is declared null and void and it is ordered

that the appellant herein be tried DE NOVO by the ENUGU JUDICIAL DIVISION of the HIGH COURT OF ANAMBRA STATE. The Chief Judge of Anambra State is to ensure that this case is treated with despatch.

Appeal allowed

K. ESO, J.S.C.: My Lords, I agree that this appeal should be allowed and the case remitted to the High Court of Anambra State sitting in Enugu for retrial by another Judge. The facts hve been set out in the judgment just read by my learned brother, lrikefe J . S. C.

The appellant was arraigned for trial on a charge for murder, and to this he pleaded not guilty on 23rd February 1976. After eight witnesses had given evidence for the prosecution that day, the learned State Counsel who was

prosecuting the case applied to amend the information. The following appears m the record

“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.”

On the adjourned date, after the case had been called and learned counsel announced their respective appearances, the ninth prosecution witness gave evidence and the case for the prosecution was closed. The accused who is now the appellant then gave evidence in his defence, and the learned counsel representing him addressed the court.

At the close of the address, Mr. Amaefuna again made another application to amend. The following is the note on the record

“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 accused person – Plea – Not guilty.”

Mr Amaefuna then followed with his address and the learned trial Judge adjourned for judgment. The Appellant was convicted and sentenced to death. An appeal to the Federal Court of Appeal was dismissed and the Appellant has now appealed to this Court.

As has already been shown in the judgments already read by my learned brothers the only point taken by learned counsel for the Appellant, Mr. Niyi Oyetunde, in this court, is as regards failure of the trial court to comply with the provisions of the Criminal Procedure Law (Cap. 31) Laws of Eastern Nigeria 1963 after the information was amended.

I will like to point out that it was strange this point was never taken in the Federal Court of Appeal and for this Mr. Niyi Oyetunde, learned counsel for the Appellant in this Court, who, incidentally was not the counsel for the appellant in the Federal Court of Appeal, deserves commendation.

The relevant provisions as to variations of charge are Sections 163, 164 and they read

“163. 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.

164. (1) 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.

(2) If the accused declares that he is not ready the court shall consider the reasons he may given and if proceeding immediately with the trial is not likely in the opinion of the court to prejudice the accused in his defence or the prosecutor in his conduct of the case the court may proceed with the trial as if the new or altered charge had been the original charge.

(3) If the new or altered charge is such that proceeding immediately with the trial is likely, in the opinion of the court, to prejudice the accused or the prosecutor the court may either direct a new trial or adjourn the trial for such period as the court may consider necessary.

(4) Where a charge is so amended, a note of the order for amendment shall be endorsed on the charge, and the charge shall be treated for the purpose of all proceedings in connection therewith as having been filed in the amended form. ”

The question is as to what the legal position is after the amendment of the information on 23rd February 1976 and also after the amendment of 12th March 19761 It would be observed, as the record shows, that after the amendment of 23rd February, 1976, the provisions of section 164 of the Criminal Procedure Law were not complied with. What happened after that

amendment and before the next amendment is just a nullity. In Eronini v. The Queen 14 W.A.C.A. 366 the West African Court of Appeal had the opportunity to look into this matter. The issue in that case, as in this case, was the effect of non-compliance with the provisions of section 164 of the

Criminal Procedure Ordinance, after the amendment of the charge. Indeed the circumstances in the Eronini case and the instant case are a bit similar.

The appellant in the Eronini case had pleaded not guilty to a charge, but before evidence was called, the charge was amended and no fresh plea was

taken. However after some evidence had been led, the charge was amended again but this time the plea of the accused person to the amended charge was taken. In the instant case, after the first amendment, no plea was taken; but after some evidence had been led, to wit: the evidence of the doctor who examined the corpse for the determination of the cause of death and also the evidence of the accused himself in his defence, another amendment was made. This time, a plea was taken.

Verity C.J. in delivering the judgment of the Court in the Eronini case said

“If the charge as first amended is treated as having been filed in the amendment form there was no plea thereto. Had the proceedings continued without further amendment it is clear that the proceedings would have been a nullity and that no belated plea could have rendered them valid. The proper course upon discovery of the fact that there was no plea, would have been to commence the trial de novo.

It is the charge and not the plea that is to be treated by virtue of section 164(4). The taking of a fresh plea is in the interest of the accused person and not for the purpose of rendering valid proceedings which would otherwise have been null and void. ”

The court allowed the appeal and quashed the conviction. In doing so the learned Chief Justice said

“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 remain the Law effect must be given to them and non-compliance therewith must carry its inevitable consequences.”

The Federal Supreme Court in The Queen v. Michael Ogunremi (1961) 1 All N. L. R. 467 followed the decision of the West African Court of Appeal in the Eronini case (supra) and Brett Ag. C.J.F. in delivering the judgment of the Court while taking note that the appellant was not in fact prejudiced by the failure to comply with section 164 of the Criminal Procedure Ordinance said

“But the decisions in Fox v. Police 12 W.A. C.A. 215 and Queen 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.”

One important statement in the case which is always overlooked is as follows

“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. ”

This Court in Humbe v. The State (1974) 5 S. C. 27 has also had the opportunity of looking into the matter. In that case however only the word “a” in brackets was inserted after the section under which the appellant was charged, that is, section 221 of the Penal Code of Northern NIgeria. The court also found that in practical terms, the inclusion entailed no intrinsic difference in the charge to which the appellant had already pleaded since the original charge contemplates in reality an accusation under section 221(a) and section 221(b). Coker, J .S.C., delivering the judgment of the Court said

“We think there was indeed an amendment and that the provisions of section 208 should have long complied with and, if necessary, the further provisions of section 209, 210 and 211 of the Criminal Procedure Code. We found it difficult to agree in the argument that there was in fact no amendment for, even if one takes the view that this particular amendment is of so trivial a nature that it does not produce any practical effect or difference on the existing charge, it will be difficult to know the exact limit to which that sort of view can be subjected . . . . .”

The provisions of section 209, 210 and 211 of the Criminal Procedure Code (Cap.30) Laws and Northern Nigeria are similar to sections 163 and 164 of the

appeal. However, in dismissing the appeal, the Court applied the provisions of section 26(1) of the Supreme Court Act, which in my view were correctly applied in that circumstance, having regard to the earlier finding of the court that in the case, no amendment should have been made and that, in any case, the learned trial judge would have been entitled in the course of his judgment (where he decided to convict) to indicate on which of the two subsections of section 221 of the Penal Code he proposed to convict the appellant. Though no reference was made to the decisions in Eronini and Ogunremi, nor to the earlier decision of this Court in Raimi Adisa v. Attorney-General, Western Nigeria 1966, N.M.L.R. 1411 which was in the same line as Eronini and Oquremi, it is my humble view that the appeal in the Humbe case was dismissed only as a result of the application by the court of the proviso to s.26(1) of the Supreme Court Act which reads

“26 (1) The Supreme Court on any appeal against conviction under this Part 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 judgement of the court before which the appellant was convicted 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, subject to the provisions of subsection (3) of this section and section 27 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.”

In Echeazu v. Comm. of Police (1974) 1 ALL N.L.R. 260, the appellant stood trial before a magistrate. At the conclusion of the examination-in-chief of P. W.3 and before the witness was cross-examined, the prosecuting counsel applied to amend the charge by substituting “16 ambulances for 36 ambulances”. After the amendment had been granted the provisions of s.164 and s.165 were complied with. The appellant pleaded to the amended charge. Later, after the learned trial magistrate had reserved judgement, he took the view that count 3 of the charge should be further amended and called for counsel’s address on the matter. The amendment which was opposed was granted and the magistrate amended the charge from “16 ambulances” back to “36 ambulances” which formed the original charge. This court said

“We would venture to express the opinion that while sections 164 and 165 of the Criminal Procedure Act are designed to afford an accused person adequate safeguards in the event of an amendment under section 162,163 ofthe Act, it is clearly not the intention ofthe framers ofthe Act, that the said section should provide such an accused with a gratuitous escape route to freedom in the face of overwhelming evidence.” A close study of the headnote to the case and a summary of the case later given in the Okusun case (infra) show that the provision of s.l64 ofthe Act was in fact complied with. However, I hold the view, with respect, that this statement by the Court does not derogate from the importance of the provisions of sections 164 and 165 of the Act. The statement is, in any event, Justified as a result of the power of the Court under s.26(1) of the Supreme Court Act, which the Court did not specifically refer to even if section 164 had not been complied with. It would not have mattered to the decision whether the number of ambulances was 16 or 36.

The provision which deals with substantial miscarriage of justice is not new. I t formed section 11 of the West African Court of Appeal Ordinance Cap. 229, that is, Ordinance No. 47 of 1933 and later s.15 of the Federal Supreme Court (Appeals) Ordinance (Cap. 67) Laws of the Federation 1958. The proviso could have been applied, had the circumstances so justified, in the earlier decisions of Eronini v. The Queen (supra). Notwithstanding the expressed reluctance of the court in the Eronini case, a very close examination at that case and the other case of Fox and Oqunremi show that if the null proceedings were excised there was in fact nothing left to justify the case of the prosecution. So the pattern in all the cases has been that the proviso is employed only in cases where the evidence still justify conviction after the excision of the null proceedings. looked at from that angle, it is quite understandable, in my opinion, why this court applied the proviso in the Humbe case. The singular exception of the Echeazu case has been explained. It is also understandable from the facts of each of the earlier cases where the proviso was not applied why the courts did not apply it. And so, in my humble view, the statement of law made by Verity C.J. in the Eronini case and reproduced supra was as valid when it was made as it is today. The provisions of sections 163 and 164 are statutory and, until the provisions of the Criminal Procedure Act or Law, as the case may be, are changed, effect must be given to them for non-compliance therewith. The proviso to s.26(1) of the Supreme Court Act or in so far as the Federal Court of Appeal is concerned, the proviso to s.26(1) of the Federal Court of Appeal Decree 1976 are however there to curb injustice whenever the case demands, that is, where the court finds that the evidence would still justify the finding of the lower court after the excision of the null proceedings.

Recently, in Joseph Okosun v. The State, 1979, 3 S. C. 36, this Court reviewed the earlier authorities of Eronini and Adisa. Incidentally, the Echeazu case was referred to before this Court held

“We think that if the Criminal Procedure Act applied to the proceedings before the (Robbery and Firearms) Tribunal the proceedings would have been null and void because of the charge was amended and the provisions of section 164 of the Criminal Procedure Act were not complied with.”

One may like to contrast this position of the law in this country with the trend in the English Law. The modern trend in England is that an accused Person could either expressly or impliedly waive his arraignment including his plea and proceed to trial. In Regina v. Williams (Roy) 1978 Q.B. 373, it was held by the Court of Appeal in the case – (that when a defendant intended to plead not guilty he could either expressly or impliedly waive arraignment and proceed to trial). The trial court had convicted the appellant on an indictment for dishonesty and the question for the consideration of the Court of Appeal was whether the proceedings resulting in the conviction were null as the appellant was not called upon to plead. The court held that although it was unfortunate that the defendant had not been asked to plead, it was implicit in the proceedings that the defendant had waived his right to plead not guilty personally and, accordingly, the defective arraignment had not invalidated the trial.

So be it. But then there is no such statutory provision in England equivalent to our s.164 of the Criminal Procedure Act. Section 6(1)(a) of the Criminal

Law Act 1967 which reads

“where a person is arraigned on indictment

(a) He shall in all cases be entitled to a plea” is completely different from the provision of s.164 and 165 of our Criminal Procedure Act. The English Acts speaks of entitlement to a plea. Surely an entitlement could be waived as it was decided in the Williams (Roy) case. The provisions of our s.164, on the contrary, speaks of specific actions which the court must take

(i) The court shall call upon the accused to plead;

(ii) The court shall consider the reasons given by an accused if he declares that he is not ready;

(iii) The court may direct a new trial or adjourn the trial if the new or altered charge is such that proceeding immediately with the trial is likely

in the opinion of the court the prejudice the accused;

(iv) the court shall endorse a note of its order on the charge.

It is my view that from all the cases that have been examined, our courts have consistently applied the strict provisions of s.164, subject however to the proviso to s .16( 1) of the Supreme Court Act or the equivalent provisions in the West African Court of Appeal, the Federal Supreme Court or the Federal

Court of Appeal as the cse may be. The test which must be applied is, as I have earlier said, – after the null proceedings have been excised from the whole proceedings or taken care of, the available evidence must be such that there will be no substantial miscarriage of justice before the conviction could be sustained-see Queen v. Aderogbe (1960), 5 F.S.c. 212.

In the instant case, after the first amendment to which there was no plea, the evidence of the doctor as to the cause of death and the defence of the appellant were given. The proceedings from that time of the amendment to the end of the evidence of the appellant were null. We therefore have a case where there is no evidence as to the cause of death or the defence of the accused person who opted to defend himself. In my respectful view, s.20(1) of the Federal Court of Appeal Decree 1976 could not have saved the case in the Court of Appeal nor could s.26(1) of the Supreme Court Act save the case in this Court. In the Echeazu case, there was sufficient evidence to convict even if there is the application of s.164 of the Act. So also is there sufficient evidence in the Humbe case. In this case there is no sufficient evidence before the Court to convict the appellant once the evidence of the doctor and that of the appellant himself is excluded.

Before I conclude, I must refer to the decision of this Court in Commissioner of Police v. Akpata (1967) 1 ALL N.L.R. 235, where this court amended the charge and upheld conviction of the lower court. This is a classical use of the proviso to s.26(1) of the Supreme Court Act and it must be borne in mind that s.164 of the Criminal Procedure Act relates to a trial court and not action by a Court of Appeal. The section deals with plea which is the business of only trial courts.

The only concern in this case is the order that should be made. In the Eronini case, an acquittal was entered for the Appellant. So also in the Okosun case which is the latest in the series. However in this case, if the evidence of the doctor and that of the accused is excised it shows an incomplete trial. The appellant has therefore not had a full trial. I agree therefore that this case should be sent back for retrial and that arrangement should be made to have the trial timeously and completed within the shortest time possible

C. IDIGBE, J.S.C: This is an appeal on a point of law brought by Nwafor Okeghu who was, on the 18th day of March, 1976, at the High Court of Anambra State holden at Enugu after a trial before Okagbue J. (as he then was), convicted of an offence of murder contrary to section 319(1) of the Criminal Code Law of Eastern Nigeria, Cap.30 in Volume II of the 1963 Edition of the laws of Eastern Nigeria applicable to Anambra State, and was sentenced to death by the learned trial Judge. The facts placed before the trial court are reasonably simple and in a short compass and have been fully set out in the judgement of my learned brother My Lord, Irikefe, J .S.c.; but the arguments and submissions advanced and urged on us in this court, on the appeal from the decision of the Federal Court of Appeal holden at Enugu /Phil-Ebosie, Kazeem JJ.CA. and Douglas J.CA. (as he then was)/ which upheld the judgement of the High Court and the issues which have arisen in the wake of both the argument and submissions make it necessary that I should, in the course of this judgement from time to time repeat certain aspects of the said facts.

My Lords, the issues which arise in this appeal can, in my view, best be appreciated by setting out the course of the legal proceedings in the High Court at Enugu. At the commencement of proceedings, Nwafor Okegbu (hereinafter referred to as “the appellant”) was charged in the Information with the murder of one Oriaku Ojioma “at Amata Obofia, Agwu, in the Enugu Judicial Division on the 8th day of November, 1974.” There was no “eye-witness testimony because no one other than the assailant of the deceased who, on the available evidence, was also the perpetrator of the crime was present when the offence was committed. The case for the Prosecutor rests on the confessional statement of the appellant (Exhibit “A”) which was put in evidence by Corporal Raymond Twueke, the police officer who, investigated the complaint which initiated these proceedings and, gave evidence in the court of trial as the eighth prosecution witness (P. W .8). It is clear from Exhibit” A” and part of the testimony of P. W.6 (himself a member of the same village or community to which the appellant belongs) that the deceased and the appellant were not on friendly terms during a period preceding the murder of the deceased; and although the details of the cause of disagreement are hardly relevant to the issues of law raised in this appeal they are, in my view, relevant for consideration of the nature of the order which this court should make in this appeal.

In Exhibit “A” the appellant stated that he inflicted matchet cuts on one ORIAKU on. According to him the reason why he “inflicted matchet cuts” on Oriaku Oji “was that his two sons and himself came to fight me (the appellant) in my father’s land where I was working. Oriaku Oji ordered his children to kill me… That was in 1974… At that time, Oriaku Oji ordered and his children cleared bush in my father’s land. I made mounds and planted seed yams there. Oriaku and his children removed the yams and went away with them.. I went to the A wgu police and lodged a report. Police advised him to leave the land for me but he paid no heed… My annoyance for matcheting him was that his children and himself came to kill me in my father’s land. He told his children to kill me and that such killing would not constitute any offence. That was why I decided to kill him … ” It is, indeed, regrettable that no further facts (e.g. as to the time of the attack on the appellant by Oriaku and his children vis-a-vis the time when the former inflicted matchet cuts on the latter) on the claim or allegation in Exhibit “A” were available to the trial court up to the stage when the eighth prosecution witness gave evidence, or at all; nor is there any evidence on the record as to where Oriaku Oji died. it is not known whether he died on the spot in the farm, or elsewhere as a result of the matchet cuts he received. In the circumstances there is, undoubtedly, need for evidence as to the cause of death. However, so much that was stated in Exhibit “A” has considerable bearing on the nature of the order which should be made in this appeal.

I will now return to my consideration of the course of legal proceedings in the Enugu High Court, which as I already stated, is relevant to the resolution ofthe issues which have arisen in this appeal. On the 23rd day of February, 1976 after eight witnesses had given evidence for the prosecution the learned trial Judge made, on the record of proceedings, the following endorsements

“At this point Amaefuna (learned counsel for the prosecution) applies under section 163 c.P.L. (i.e. Criminal Procedure Law of Eastern Nigeria) to amend the Information by adding the word OBU to the (sic) it will read ORIAKU OJlOMA OBU… granted; (i.e. application granted and amendment carried out accordingly).

“Adjourned to the 12th March, 1976.”/Brackets, capitals and italics supplied by me.

lt is relevant to mention, at this stage, that, notwithstanding the fact that the amended charge was not read over to the appellant as required by section 163 of the Criminal Procedure Law, no plea was taken from him after this amendment of the Information before the adjournment to the 12th march,1976 nor before resumption of proceedings on that day when the evidence of both the ninth witness for the prosecution – Dr. Anthony Chukwuemezie Okafor (P. W. 9) who gave evidence as to the cause of death – and the appellant was received by the trial Judge. The appellant did not call my witness and his counsel closed the defence at the conclusion of his (the appellant’s) evidence. Learned counsel for the State and the prosecution then addressed the court; and in the course of the address of the latter application was once again made for further amendment of the Information by adding “after the words ORIAKUOJIOMA … the followingwordsALIASORIAKUOJlOBU ALIAS ORIAKU OJI.” The application was granted and learned counsel after referring the court to a number of decided cases then closed his address. This time the amended charge was read over to the appellant and a fresh plea taken from him. A considered judgement was delivered by the court on 18th March, 1976 when the appellant was only convicted of, and sentenced to death for, the murder of ORIAKU OlIOMA otherwise known as ORIAKU OJI”.

The principal ground of appeal in this court (but not in the Federal Court of Appeal) reads

“The learned Justices of the Federal Court of Appeal erred in law confirming conviction and sentence on the appellant when the learned trial Judge erred in law by allowing an amendment to the Information without reading the amended Information to the accused, without asking the appellant whether he was ready to be tried on the amended Information … ”

Learned counsel for the appellant in support of his ground of appeal submits that non-compliance by the court with section 164(1) of the Criminal Procedure Law Eastern Nigeria (hereinafter referred to simply as “C.P.L.”) vitiates all proceedings subsequent to the 12th day of march, 1976 and further contends that the subsequent compliance with that section in the course of the address of counsel has not validated the proceedings of the 12th day of march, 1976. Consequently, the entire trial, in his submission, is null and void.

Learned counsel for the State (i.e. prosecution) in reply concedes that on the authority of Umez Eronini vs. The Queen (1953) 14 W.A.C.A.366 “the proceedings up to the evidence of the 8th prosecution witness (before the first amendment was made) were valid” but contends that in other words only the evidence of P. W. 9 was rendered invalid by the first amendment which did not comply with section 164(1) of the C.P.L. The prosecution further submits in the alternative that even if the evidence of the doctor (P.W.9) is invalid by reason of non-compliance with the section of the Criminal Procedure Law

under consideration, there is in the confessional statement of the appellantExhibit” A” – enough evidence to warrant his conviction, by the trial court for the offence laid against him in the Information. Finally, learned counsel for the prosecution submits that “in the event of this Honourable Court not being convinced by (his) argument, an order for re-trial of the appellant should, on the authority of Raimi Adisa vs. Attorney-General for Western Nigeria” (1965) 1 All N.L.R. 412, be made.

I have had the opportunity of reading the opinion of my learned brother My Lord Mohammed Bello I.S.C. who IS of the view that the nature of the amendment of the Information carried out during the trial being of a trivial or non-substantial nature, this court ought by virtue of sections 29 and 30 of the Supreme Court Act 1960 to apply the Proviso to subsection (1) of section (20) of the Federal Court of Appeal Decree No. 43 of 1976 (hereinafter referred to as “Miscarriage of Justice Proviso”) and dismiss this appeal. It was also his view that most of the Appelate Court decisions on this issue either did not consider fully this proviso, or were given when the courts were not invested with powers similar or analogous to the “Miscarriage of Justice Proviso”. In any event, he was of the opinion that the modern trend (in common-law countries) is to relax the rigour and consequences of the harsh and rather inflexible application of the effect at Common Law of the failure of an accused person to plead to the charges against him before commencement of his trial; and he found support for his cumulative views in the cases of Afehe Humbe v. The State (1974) 1 All N.L.R. 355 (a decision ofthis court) and Regina v. William (Roy) (1978) O.B. 373 (a decision of the Court of Appeal in England).

Given the circumstances of the peculiar state and the language of our Criminal Procedure law and, in particular, the mandatory provision of section 164(1) of the C.P.L. under consideration, there is, in my view considerable merit in the submissions of learned counsel for the appellant. I consider it necessary, at this stage to set out the provisions of section 163, 164(1), 164(4), 165 and 1660fthe Criminal Procedure Law; these read

“163: Any court may alter or add to any charge at any time before judgement is given or verdict returned and every such alteration or addition shall be read and explained to the accused.

164 (1): If a new charge is framed or alteration 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.

164 (4) Where a charge is so amended . . . the charge shall be treated for the purposes of all proceedings in connection therewith as having been filed in the amended form.

165: 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 re-summon any witness who may have been examined and examine or cross-examine such witness with reference to such alteration.

166: No error in stating the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any stage of the case as material unless the accused was in fact misled by such error or omission.”

The cumulative effect of the foregoing provisions of the Criminal Procedure Law are:

(a) A trial court may at any stage before giving judgment or returning a verdict alter or add to any charge laid against an accused person (section 163); and

(b) The trial court need not carry out any such alteration or amendment of the charge if on the available evidence it is unnecessary so to do (especially in regard to particulars required to be stated in the charge) in order to return a verdict (and it will be unnecessary to carry out any such amendment if it is apparent that the accused is not likely to be misled if the amendment was not carried out); and in the event of a verdict being returned in the face of omission to carry out amendment of such particulars of the charge the verdict will not be disturbed UNLESS the accused was in fact misled. (Section 166)/See also R. v. Tuttle (192921 C.A.R. 85; and R. v. Shallabi (1935) 2 W.A.C.A. 363 (A GOLD COAST)/; and it follows that alterations or additions should not be made to the charge if a valid conviction or acquittal can be recorded on the charge as it stands (and this must be so where an accused obviously cannot be misled by the charge remaining in its original form) – see UMEZ ERONINI vs. The Queen (1953) 14 W.A.C.A. 366;) I made these observations under this sub-paragraph because it does appear to me that the amendments carried out in these proceedings on the 23rd day of February, 1976 were utterly unnecessary.)

(c) Where notwithstanding the provisions of section 166 the court decides to and, indeed, carries out any alteration or addition to the charge then the requirements of section 164(1) (Supra) must be complied with particularly in view of the provisions of section 164(4) (Supra). Accordingly, a failure to call on the prisoner at the Bar (i.e. the accused) to plead to the charge in its amended form renders to the whole proceedings subsequent to the amendment null and void.

In Eronini (Supra) the appellant was charged with an offence and pleaded not guilty. Before evidence was called the charge was amended but no fresh plea was taken; after some evidence was received, the charge was amended again but this time his plea was taken and he was eventually convicted. On appeal he argued that owing to non-compliance with the provisions of section 164(1) in respect of the first amendment of the charge, the proceedings between that and the second amendment were VOID and consequently the evidence received between the first and second amendment of the charge was unlawfully admitted, and that the remaining evidence being insufficient to sustain the conviction by the trial court, the Appellate Court should quash the conviction and enter a verdict of acquital. For the prosecution it was contended that if part of the proceedings was void then the entire trial was a nullity and a new trial should be ordered. In a decision of a strong panel of the West African Court of Appeal IVerity C.l.: Coussey l.A. and jibowu l., it was held that (1) the proceedings between the first amendment of the charge (when no plea was taken) and the second amendment was NULL AND VOID (i.e. amounted to a nullity); and (2) the evidence received between the first amendment of the charge and the second – at a stage when the proceedings were a nullity – must be excluded; and (3) as it was not possible to say that had that evidence not been relied upon and taken into consideration the trial Judge would have come to the same conclusion, the conviction could not be sustained.

I think it is desirable, at this stage to set out portions of the judgement of Verity c.J. ; and they read:

“If the charge as first amended is treated as having been filed in the amendedform/see Section 164(4) C.P.L.I there was no plea thereto. Had the proceedings continued without further amendment it is clear that the proceedings would have been a nullity and that no belated plea would have rendered then valid. The proper course upon discovery of the fact that there was no plea, would have been to commence the trial de novo. IT WOULD CERTAINLY NOT BE OPEN TO THE COURT TO CURE THE DEFECT BY ASKING SOME immagerial alteration TO THE CHARGE, CALL UPON THE ACCUSED TO PLEAD THERETO and then treat the plea as having been made IN THE FIRST PLACE. It is the charge and not the plea that is to be so treated by virtue of Section 164(4). The taking of a fresh plea is in the interest of the accused and NOT for the purpose of rendering valid proceedings which would otherwise have been null and void. In point of fact the second amendment in this case was immaterial; as indeed the first land I would add, as indeed the first may be regarded as minor and trivial, the figure of 13/- in one of the courts having been amended to read14/-/for proof neither of the precise date nor of the precise sum alleged to have been stolen would have been essential to the conviction and we are at a loss to understand why the amendment was sought.”

In the later part of the judgement the learned Chief Justice observed

“We have reached this conclusion (i.e. to quash the conviction as it cannot be sustained) 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 (now Criminal Procedure Act) remain 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 . . . . . . . . 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 therefrom. Until such time as it may be found possible to revise its provisions (and there has since been no revision of this particular section of the C. P. L. ) 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 peculia rarities lead to miscarriage of the proceedings and perhaps of justice.”

From the foregoing quotation there is no doubt that the West African Court of Appeal in reaching this decision was very much apprehensive of the possibIlity that a strict application of the consequences of failure of a trial court to comply with the provIsions of the Criminal Procedure Law under consideration (although a point in “favour of the appellant”) is capable, sometimes, of leading to a miscarriage of justice; and in case the view may be entertained (as it does appear to have been on some other occasions) that that court ( the West African Court of Appeal hereinafter referred to simply as “W.A.C.A.”) took the course which they did in Eronini (Supra) because they did not have the benefit of a proviso similar to the “Miscarriage of Justice Proviso” now inserted in most statutory enactments establishing modern and more recent Courts of Appeal (as now exists in Sections 20(1) and 26(1) of the Federal Court of Appeal Decree No. 43 26(1) of 1976, and the Supreme Court Act 1960 respectively), I think it should be pointed out that W.A.C.A. when they gave their decision had the benefit of, and mist have duly considered, such a provision which exists in section 11 of Cap. 229 of Volume 6 of the 1948 Edition of the Laws of Nigeria entitled, West African Court of Appeal (Colony and Protectorate) Ordinance; That section reads:

(11) (1) The Court of Appeal on any such appeal against conviction shall allow the appeal if they think fit that the verdict should be set aside on the ground that it was unreasonable or cannot be supported having regard to the evidence or that the judgement of the court before which the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice, and in other case, shall dismiss the appeal. PROVIDED that the court may, notwithstanding that they are of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage ofjustice has actually occurred. ”

And when in 1959 (to be precise, 18th December, 1959) a strong (Janel of the Federal Supreme Court [Ademola C.J.F., Brett, Mbanefo F.JJ] held that failure by a trial court to comply with the provisions of Section 164(1) c.P.L. rendered the proceedings a nullity (even though the alternative in the charge were in respect of only one of the counts and were of a minor and trivial nature [ see Youngman v. Commissioner of Police (1959) 4 F. S. C. 283 AT 284 AND 285]; and, again, when another strong panel of the same court [Ademola C.J.F., Brett and Hubbard F.JJ.] on 25th March, 1960 observed as follows:

“After a careful examination of sections 163, 164 and 165 of the Criminal Procedure Ordinance considered with section 304 . . . . We are of the view that when a charge is so amended it must be regarded that a fresh trial on the amended charge has thus been commenced, and the accused must be put to his election whether or not he would agree to be tried summarily on that amended charge.”

See Jones v. Police (19605 F.S. C. 38]; and finally declared the proceedings invalid, that court – the Federal Supreme Court – had the benefit of the very same Proviso to Section 11 (1) of the West African Court of Appeal and must have considered adequately the need for its application in the appeal before them. Again, although the main point for consideration in Jones vs. Police (Supra) was the right of an accused person to another election after an amendment, that court impliedly confirmed that a fresh plea was in those circumstances, also necessary. Another point of interest in that case also was that the amendment was not only of a minor nature but also unnecessary.

In passing, I make the point that in the cases of Youngman (Supra and Jones (Supra the Federal Supreme Court (hereinafter referred to simply as “the F.S.C.”) applied Section 11(1) of the West African Court of Appeal because until the Federal Supreme Court Ordinance 1960, in which a similar proviso was preserved in section 26(1), came into operation on1st September, 1960 [long after the decisions in Youngman Supra) and Jones (Supra)], it was the “West African Court of Appeal Ordinance” which was then applicable in the Federal Supreme Court, albeit, under a new title – the “Federal Supreme Court (Appeals) Ordinance” [see sections 147(1), 219(1) of the Nigerian (Constitution) Order in Council 1954. No. 1146 of 1954 and, the Nigerian Constitution) Orders in Council 1954 1955 – Adaptation of Laws (Judicial Provisions) Order 1955 (L.N.47 of 1955) which came into force on 1st July, 1955 (Vide L.N .55 of 1955) by which the West African Court of Appeal Ordinance Cap. 229 became applicable to the Federal Supreme Court under the title “the Federal Supreme Court (Appeals) Ordinance” (vide the amendments to Sections 1 and 2 of the West African Court of Appeal Ordinance as set out at Page B.125 of the supplement to the Laws of Nigeria 1955.]

The resultant position of the foregoing observations is, in my view, that in the cases of Eronini (Supra) Youngman (Supra) and Jones (Supra) the Courts of Appeal that is, W.A.C.A. and the F.S.C. were not only cognisant of, but also must be deemed to have duly applied their respective considerations to, the “Miscarriage of Justice Proviso”. The question which now arises is, given the peculiar provisions of the Nigerian Criminal Procedure Act (and the Criminal Procedure Law Eastern Nigeria applicable in Anambra State), whether it is proper to depart from the principles established in the decisions entrenched in the cases which have dealt with Section 164(1) C.P.L. (Eronini, youngman and Jones (Supra), to mention a few) I will proceed anon to consider and arrive an answer to this important question.

In the case of the Queen v. Gibson (1887) 180. B. D. 537 [a decision of a very strong Panel of the Court of Crown Cases Reserved – Lord Coleridge c.J., Pollock B; Stephen, Mathew and Wills JJ.] it was decided that in a criminal trial, if any evidence not legally admissible against a prisoner is left to the Jury, and they find him guilty, the conviction is bad; and this notwithstanding that there was other evidence before them properly admitted and sufficient to warrant a conviction. Lord Coleridge, in a passage in his judgement observed:

“Can it be contended that by the law as it stood at the passing of the Judicature Acts there was any difference between civil and criminal trials with respect to the result of a finding of a Jury arrived at upon evidence partly legal and partly illegal The consequences in each case no doubt would be different. In civil cases a new trial was ordered; in criminal cases this for other reasons (at that period of time in the English Legal history) could not be done; but both in civil and in criminal cases the verdict would be vitiated by reason of the illegal evidence having been left to the Jury. I think, therefore, upon principle the verdict of the Jury in the present case cannot stand… ”

In Rex vs. Marsham, Exparte Lawrence (1912) K.B. 362 a decision of a Divisional Court of the King’s bench – [Lord Alverston C.J. Pickford and A vory 11.], the applicant for a writ of certiorari was convicted by a magistrate of assault, but by some inadvertance the victim of the assault gave evidence at the hearing of the charge without being sworn. Upon the attention of the magistrate being drawn to this irregularity he, later on the same day, reheard the case, all the evidence being duly received on oath. The magistrate again convicted the appellant. A Rule NISI having been obtained to quash the conviction upon the ground (inter alia) that it was bad since the applicant at the time of the “second” conviction had previously been put in peril in respect of the same offence, it was held that the Rule NISI must be discharged inasmuch as the applicant had not legally been convicted at the “first” hearing and had, therefore, not been in peril at the time of the “second” trial and the “second” conviction was good. Lord Alverston C.J. regarded the “first trial” as a nullity and A vory J. considered it invalid.

In the case of Afehe Humbe vs. The Queen a case which came on appeal to the Supreme Court the trial court having carried out an alteration of the charge against the appellant and failed to call upon him to plead to the amended charge as required under the provisions of section 208(2) of the Criminal Procedure Code (applicable in Makurdi in Northern Nigeria) which are almost in pari materia to the provisions of section 164( 1) of the C.P.L. under consideration, it was held that “there was in fact an amendment of the charge within the ordinary and legal meaning of the word, and clearly there has been a non-compliance with the provisions of section 208(2) of the Criminal Procedure Code. The appellant could have succeeded on the appeal on the grounds of law which had been raised in his favour but having regard to all the circumstances of the case and because those circumstances demonstrate that there could not be and that, indeed, there was no failure or miscarriage of justice in any shape or form, we dismiss this appeal under the provisions of the aforementioned statutes” (i.e. sections 382 of the C.P.C. and 26(1) of the Supreme Court Act). [Italics and brackets supplied by me] The headnote to the report in Echeazu v. Police (1974) 1 All N.L.R. Part 1,260 indicates that section 164 was complied with and nothing in the body of the judgement, in my view, specifically indicates the contrary. The case of Okosun shows that the point in issue in Echeazu relates to section 165 C.P.A. [See Okoslln (1979) 3 and 4 S. C. also last paragraph. ]

About five years later this court [Alexander C.J.N. Irikefe, Obaseki, Ardo and Eso JJ.S. C.] in Joseph Okosun v. The State (1979)3 and 4 S. C. 36 on the 21st day of march, 1979 decided that:

“The effect of non-compliance with the provisions of the above cited section (i.e. sec. 164(1) of the Criminal Procedure Act) is to render the trial a nullity – see Eronini v. The Queen (Supra) and Adisa vs. Attorney-General Western Nigeria 1966. The record here shows that the tribunal did not advert its mind to compliance with the provisions of the section… We are not in any doubt that afresh plea is an essential, and, indeed, an indispensible element in the trial of a new charge, which is what an amendment, NO MATTER HOW TRIFLING IN NA TURE, does to an existing charge… Non-compliance with the provisions of Section 164(1) of the Act has rendered these proceedings null and.J void

In the result the appeal is allowed and the conviction of the appellant in these proceedings and the sentence are set aside… ”

In the case of Raimi Adisa v. Attorney-General for Western Nigeria (Supra) to which reference was made in Okosun (Supra) the learned Chief Justice,

Ademola C.J.N. delivering the judgment of this court observed after referring to Eronini (Supra):

“It was therefore imperative, in our view, for fresh plea to be taken by the judge … (Le. after amendment to an existing charge was carried out).”

Now, neither the case of Adisa (Supra) nor Eronini, Youngman or Jones (Supra) was cited to, and considered by, the court in the case ofAfehe Humbe v. The State (Supra). It apparently conflicts with every other known decision of this court in so far as the decisions may be confined to the precise effect of non-compliance with the provisions of Section 164(1) C.P.L. (and the consequential orders theron); and all of which cases were decided in the face of the Proviso to Section 26(1) of the Supreme Court Act 1960. The only other cases in which our Courts of Appeal would appear to have taken a different stand, with reference to the “Miscarriage of Justice Proviso”, are cases which really deal with subsections (2) and (3) of section 164 of the Criminal Procedure Act (or the Criminal Procedure Law) and section 165 of the same (i.e. Act or Law) and their provisions are obviously so non-mandatory that there is no doubt that failure of a trial court to comply with them cannot per se vitiate the proceedings (and render them VOID or NULL) unless, applying the proviso, a miscarriage of justice has ocurred. These subsections read:

“164 (2): If the accused declares that he is not ready the court shall consider the reasons he may give and if proceeding immediately with the trial is not likely in the opinion of the court to prejudice the accused in his defence or the prosecutor in his conduct of the case the court may proceed with the trial as if the new charge had been the original charge.

“164 (3): If the new or altered charge is such that proceeding immediately with the trial is likely in the opinion of the court, to prejudice the accused or the prosecutor the court may either direct a new trial or adjourn the trial for such period as the court may consider necessary.

“165: When a charge is altered by the court after the commencement of the trial the prosecutor and the accused should be allowed to recall or resummon any witness who may have been examined and examine or cross-examine such witness with reference to such alteration.”

However, even where the courts of Appeal following the discretionary powers of trial courts have dismissed an appeal against the failure of trial courts to comply with Sections 164(2), 164(3) and 165, they were satisfied in the first place that Section 164(1) was complied with (whether or not the appellant was represented by counsel at the trial). It was only after (but not before) being satisfied that section 164(1) was complied with that they (the Courts of Appeal) proceeded to apply the “Miscarriage of Justice Proviso”. In this connection I refer to the case of Bisriyu Shoaga v. The King (1952) 14 W.A.C.A. 22. a case of non-compliance with Section 165 following amendment in the course of trial of the original charge. The accused was represented by counsel but the trial Judge failed to ask counselor the accused if he wished witnesses to be recalled. On appeal the West African Court of Appeal (Verity C.J. Jibowu Ag. S.P.J. and coussey J.) held that the right to have witnesses recalled and examined under Section 165 is a right of which an accused person must be informed if not legally represented; but if he has counsel there is no need to inform his counsel. However, part of the judgement of the court delivered by Verity c.J. reads:

“The court itself raised two points upon which we sought the assistance of the counsel for the Crown. The first related to a matter of procedure.

The information as originally laid included in the first count two accused persons only and did not include therein the name of the present appellant. At the conclusion of the case for the prosecution, application was made to add the name of the present appellant to the first count in the information. This application was granted without objection by counsel for the present appellant and his plea was taken thereto. The question then arises whether it was necessary for the learned trial Judge to invite counsel to recall or cross-examine any of the witnesses whose testimony had already been heard . . . . . . . .”

James Edun & Others vs. The Inspector-General of Police (1966) 1 All N.L.R. 17 was another case in which the “Miscarriage of Justice Proviso” was applied by this court [Brett, Onveama and Ajegbo JJ. S. C.] where it held that there was no reason to suppose that the omission to ask the defendants if they were ready for (continuation of) the trial after amendment of a count (of Robbery) in the original charge occasioned a miscarriage of justice; and the trial court having first called upon the appellants (defendants to plead to the amended charge, and they pleaded, the court dismissed the appeal in respect of that count (Robbery).

At the risk of being accused of being repetitive I would draw attention once again to what may be described as an extreme case in which the alteration carried out could be regarded, in the con of the trial, as really neither substantial nor grave, if only by way of distinguishing between the Eronini class of cases and Shoaga (Supra) and Edun (Supra), where a trial court allowed an amendment on a charge of “Rape contrary to section 229 of the Criminal Code” [Instead of contrary to section 358 which, is the punishment section for the offence of Rape] and ruled that a fresh plea was unnecessary after the amendment which was in fact carried out at the end of the hearing of both the case for the prosecution and the defence, the Federal Supreme Court [Brett Ag. CF.J. Hurley CJ.N. and Bellamy Ag. C.J. Lagos] in allowing the appeal, and quashing both conviction and sentence and entering a verdict of acquittal held that omission on the part of the trial Judge to call upon an accused to plead to a charge which is altered by amendment during the course of trial, renders the conviction and sentence thereon a nullity. Brett Ag. C.F.J. (on the 11th August, 1961) observed:

“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 vs. Police 12 W.A. CA. 215 and R. v. Eronini 14 W.A. CA. 366, leave us no choice but to hold that the omission rendered the conviction and sentence a nullity, and they must be set aside …”

The Queen vs. Michael Ogunremi (1961) 1 All N.L.R. 467 at468.)

For my part, I would confine the case of HUM B E Supra) to the peculiar facts and circumstances of that case and say no more other than that it does appear to me, to be a settled rule of the principle of State decisis that

“Where there are two conflicting decisions, (of the House of Lords) the House of Lords cannot of necessity be bound by both; and though nothing has been laid down by the House itself, the position must be analogous to that of the Court of Appeal which is free in such circumstances to choose between the two” – See Salmond on Jurisprudence 12th Edition (1966) at P.28.

It does appear to me, in my humble view, that this court in OKOSUN (Supra) CHOSE to follow the earlier decisions [Eronini, Youngman, Jones and Raimi Adisa (Supra) to name a few] and must be deemed not to have followed Humbe (Supra) even though it was not cited to the court in OKOSUN Supra). I feel satisfied and convinced that the principles laid down in Eronini,youngman, Jones, Adisa and most recently and more particularly AFTER HUMBE (Supra) in Okosun (Supra) more accurately reflect the correct legal interpretation of the effect of non-compliance and the statutory provisions in section 164(1) of the Nigerian Criminal Procedure Act [and section 164(1) C.P.L. Eastern Nigeria under consideration], and the appropriate consequential orders thereon by our Appellate Courts the Proviso to subsection (1) of section 26 of the Supreme court Act 1960 (or subsection (1) of section 20 of the Federal Court of Appeal Decree No. 43 of 1975 and, generally, other statutory provisos in pari materia – (e.g. the High Courts vis-a-vis appeals from the magistrate Courts), notwithstanding.

I cannot conclude this judgement without making a brief reference to, and making my own observations on, the case of Regina v. Roy Williams (1972) O.B. 373 referred to in the judgement of my learned brother, My Lord Bello J. S. C. The sum of the decision in that case is that the common law requirement of a plea by the accused himself to the charge in order to submit to the jurisdiction of the trial court can NOW be waived by implication. The short answer to the question whether that case can properly apply to the circumstances and provisions of our Criminal Procedure Act (or Criminal Procedure Law Eastern Nigeria) must be in the negative because the require I cannot conclude this judgement without making a brief reference to, and making my own observations on, the case of Regina v. Roy Williams (1972) O.B. 373 referred to in the judgment of my learned brother, My Lord Bello J. S. C. The sum of the decision in that case is that the common law requirement of a plea by the accused himself to the charge in order to submit to the jurisdiction of the trial court can NOW be waived by implication. The short answer to the question whether that case can properly apply to the circumstances and provisions of our Criminal Procedure Act (or Criminal Procedure Law Eastern Nigeria) must be in the negative because the requirement of a submission to trial by the plea of an accused under the provisions of our Criminal Procedure Act which are Statutory (unlike the situation in England, where until recently the requirement stems from the provisions, and have grown out of the applications, of the Common Law over the years).

At Common Law, the plea of the prisoner completes the arraignment. When asked how he pleads, there were and still are at least ten courses open to him, seven of which are, indeed, pleas in a formal sense; of these formal pleas (demurer; to the jurisdiction; autrefais acquit and autrefais convict; pardon; standing mute; guilty and/or not guilty) . We are concerned here with the lastthe plea of not guilty which is sometimes called “a plea to the general issue”; and the accused must himself pronounce it orally at the bar in the words “not guilty”. The importance of this plea (i.e. of not guilty) is that by the plea the accused is deemed to have put himself upon the country (super patriam) for trial in respect of the charge to which he pleaded, that is, he “joins issue” with every or any part of the prosecution’s case and the prosecution must prove every fact and circumstance constituting the offence. For every charge this process must be gone through, at Common Law, and so it is that when a charge is amended because, by the amendment, it constitutes a new or fresh charge; the accused must once again plead to the general issue. Section 164(4) of our Criminal Procedure Act makes every charge amended in the course of a trial a new or fresh charge.

Not without cause the modern trend in England is to assuage this rather uncompromising stance of the Common Law which, undoubtedly, is unduly technical; and the courts now seek to evade the rigour of its consequences by what may now be regarded as the modern doctrine of WAIVER of the personal right of the accused to plead “not guilty” (i.e. by himself) to a criminal charge as is evident by the pronouncement of the Court of Appeal in England in Reg. v. Williams (Roy) (Supra). the English Criminal Law Act 1967 has not the equivalent of our Section 164(1) c.P.L. Fortunately or unfortunately, depending on the view one takes of the merits or demerits of the stance of the common law, the principal, however, has been written into our Criminal Procedure Act thereby giving it statutory force; and it is on this ground that I think that the case of William (Roy) (Supra) can have no relevance to the matter under consideration. As is well known, enactments regulating the procedure in courts are usually construed as imperative; and this is a cardinal principle of interpretation of statutes especially where procedural provisions, as under section 164(1), are inserted for the protection of accused persons. With respect, this accords with the views of Lord Hudson in his speech in the House of Lords in The Secretary of State for Defence vs . WARN (1988) 3 W. L, R, 609 AT 614 where he stated:

“Procedural sections are usually mandatory and there is nothing which points to the contrary in this case. Procedural provisions are, as here, often inserted for the benefit of accused persons . . . . . . . . .”

Applying, there, the principles of law above explained, the position here is that in the case in hand all proceedings susbsequent to the 23rd February, 1976 (and these include the recording of the testimony on oath of the doctor P. W. 9 and the appellant on the 12th March, 1976) must be regarded as null and void; since the proceedings were, as a result of non-compliance with the provisions of section 164(1) c.P.L., ultra vires the trial court; and ex nihilo nihil fit. Accordingly, void acts are generally destitute of legal effect, and they should be ignored. The position then is that the trial, in the case in hand, before Okagbue J. (as he then was) must be regarded as incomplete; and alternatively if he (as it does appear from his judgment) made use of the evidence of the doctor P.2.9 and the appellant (recorded subsequent to the alteration of the charge to which the appellant never pleaded) then he acted upon illegal evidence. [See The Queen v. Gibson (Supra), and Eronini vs. The Queen (Supra)]. The judgement which folowed such a trial must be null and void. [See Rex v. Marsham Exparte Lawrence (1912) (Supra); ERONINI (Supra Okosun (Supra).]

Our attention was drawn to the fact that the appellant himself admitted in Exhibit “A” which he virtually adopted in the course of his “testimony” that:

“He inflicted a matchet cut on “ORIAKU OJI” (which names were those inserted in the charge by virtue of the amendment under consideration in this appeal) and also added in Exhibit “A” that he” decided” to kill him” (ORIAKU OJI).”

Further we were referred to the fact that in one of his grounds of appeal to this court, the appellant stated that “he killed the deceased” under provocation. In my respectful view these statements can have no relevance or bearing to the issue under consideration, that is, the legal effect of non-compliance with the provisions of section 164(1) which is unquestionably fatal to the proceedings subsequent to the amended charges. In the first place the “testimony” of the accused being consequent on, and subsequent to, “illegal proceedings” on the 12th March, 1976 after the amendment on the 23rd of February ,1975, must be regarded as ” illegal evidence” and cannot be taken cognisance of in the proceedings in the lower court or in this appeal; and in the second place the statements in the grounds of appeal are neither “evidence” for use in the court of trial nor in the Court of Appeal which is not a court of trial. These statements are relevant only for purposes of consideration of the appropriate order that can be made in this appeal and no more.

As was stated by Verity C.J. IN ERONINI (a view to which I, most respectfully, subscribe) “this is a conclusion reached with great reluctance for we feal that it may (sometimes) result in a miscarriage of justice, but nevertheless SO LONG AS THE PROVISIONS OF THE CRIMINAL PROCEDURE ORDINANCE (and the Criminal Procedure Law Eastern Nigeria applicable in Anambra State remain the law (i.e. in their present form) effect must be given to them and non-compliance therewith must carry its inevitable consequences. . . . . . . .”). With respect, I think the time has arrived when the country’s Law Revision Commission may take another look at the provisions of section 164(1) of the Criminal Procedure Act (and Criminal Procedure Law) in particular. The position then, in my view is that:

(1) Without the evidence of the doctor it is difficult to find with any precision the cause of death of ORIAKU on or ORIAKU OJIOKA alias ORIAKU OBU, EXHIBIT “A” not withstanding; and

(2) In view ofthe non-compliance with section 164(1) the local stage of the proceedings is that no evidence of the appellant was received; and

(3) the trial before Okagbue J. (as he then was) remains legally incomplete.

I am in agreement with the decision and order in the leading judgement of my learned brother, My Lord, Irikefe J . S. C.

I would allow this appeal, and it is hereby allowed. The judgement and sentence of the learned trial Judge in the High Court of Anambra State delivered at Enugu on the 18th day of March 1976 in Suit E/64C/75 together with the decision of the Federal Court of Appeal holden at Enugu dated the 23rd day of September, 1977 which upheld the conviction of the appellant are hereby set aside. In substitution thereof I hereby order that the appellant be retried in the High Court of Anambra State holden at Enugu before another Judge.

A. N. ANIAGOLU, J.S.C.: A general picture of the facts in this appeal, in which the appellant was convicted by Okagbue, J. (as he then was) in the Enugu High Court for the murder of one Oriaku Ojioma Obu and sentenced to death, has been presented in the judgement of my brother, Irikefe, J .S. C. Counsel for the appellant, Niyi Oyetunde, abandoned before us his original grounds of appeal. He sought and obtained leave to argue six additional grounds of appeal but later abandoned ground two of the said additional grounds. Of the remaining five, the last of which was the omnibus ground complaining that the decision was unreasonable, the one seriously pursued was the first ground which read that:

“1. The learned Justices of the Federal Court of Appeal erred in law confirming conviction and sentence on the appellant when the learned trial judge erred in law by allowing an amendment to the information without reading the amended information to the accused, without taking a new plea from the appellant, and without asking the appellant whether he was ready to be tried on the amended information.

Particulars of Error

The mandatory provisions of 5.136 in the Criminal Procedure Law read in conjunction with 5.339 CPL (E.N.) enjoins the learned trial judge as follows:

(i) That every alteration or addition to a charge should be read and explained to the accused;

(ii) That the court should call upon the accused to plea to the amended charge and to say whether he was ready to be tried on the amended

(iii) That the prosecution and the accused be allowed by the court to re-call or re-summon any witness who may have been examined or cross-examine such witness.

In the premises, it was a substantial miscarriage of justice to omit to do this as the learned trial judge did at lines 18-21 of page 10 of the Record not to have read the amended charge, and was also an error and a miscarriage of justice to have repeated the same procedure at lines 14-18 page 13 of the Record right at the end of the trial without giving the appellant the opportunity to recall or re-summons any witness who may have been examined during the trial.”

It appears to me, and I consider, the issue raised in this ground of appeal as fundamental and the decision on it as sufficient to dispose of the entire appeal, making any decisions on the other grounds of appeal uncalled for.

After hearing the 8th witness for the prosecution, on 23rd February 1976, the trial judge recorded as follows:

“At this point, Amaefuna applies under 5.163 of C.P.L., 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.”

At the resumed hearing on 12th March, 1976 the trial judge proceeded to hear the evidence of the doctor, one Dr. Anthony Chukwuemezie Okafor, after which the prosecution closed its case. He then heard the evidence of the appellant, which consisted of partly introducing a few facts and then adopting the contents of his extra-judicial statement to the police, Exhibit A. Thereafter, defence Counsel announced he had no witness to call and proceeded to address the Court. At the close of his said address, Counsel for the prosecution applied to amend the charge. The application was granted. The record of the trial judge reads:

“Amaefuna – Would like to amend the Information. Relies on S .163 and C.P.L. 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 accused person – Plea – Not guilty. ”

Immediately after this, prosecuting Counsel addressed the Court in reply. The case was then adjourned to 18th March 1976 for judgment, on which date judgment was delivered and the appellant condemned to death as hereinbefore stated.

It will be noted from the foregoing narrative that after the amendment to the information made on 23rd February 1976,

(i) The amended information was not read to the appellant;

(ii) His plea on the amended information was not taken;

(iii) He was not asked if he wished to have any of the eight witnesses who had already testified recalled for cross-examination, nor, in fact, was any of them recalled for cross-examination; and

(iv) He was not asked if he was ready to proceed with the hearing on the amended information.

Again, although the information, as again amended after the close of the address of defence Counsel, was read to the appellant and his plea thereon taken, yet, again, none of the witnesses was recalled for cross-examination nor was the appellant asked if he wished to have any of them recalled nor was he asked if he was prepared to go on with the hearing.

Counsel for the appellant, Mr. Niyi Oyetunde, citing RAIMI ADISA V. ATTORNEY-GENERAL, WESTERN NIGERIA (1966) N.M.L.R. 144 and JOSEPH OKOSUN V. THE STATE (1979) 3 & 4 S.c. 36 AT 52, submitted that the trial of the appellant was wholly vitiated and urged that we should acquit and discharge the appellant. The Director of Public Prosecutions, Anambra State, Mr. G. C. Okeke, while conceding that the trial judge was in ~erious procedural error and stating that he could not support the conviction, submitted that the case fell within the principles laid down in YESUFU ABODUNDU & ORS. V. THE QUEEN 4 F.S.C. 70 and urged that an order for retrial be made because the evidence of the witnesses heard by the Court contained enough facts of guilt against the accused.

In his reply, Mr. Oyetunde pressed that having regard to the fact that the appellant has now been incarcerated for over two and a half years, this Court,

in the interest of justice, should not perpetuate the suffering of the appellant by ordering a new trial, but should let him go free.

In answering the question posed in this appeal it is necessary to observe that sections 162 and 165 of the Criminal Procedure Law of Eastern Nigeria contained in Volume II Laws of Eastern Nigeria 1963 which applied to the then East-Central State and governed the trial of the appellant by the High Court of East-Central State, are identical to precisely the same sections of the Criminal Procedure Act with reference to which RAIMI ADISA V. ATTORNEY ENERAL, WESTERN NIGERIA (SUPRA) was decided by the Supreme Court. In that case at p.145 the Supreme Court of Nigeria (Ademola, C.J.N., Coker and Idigbe, N.S.C.) unanimously held that the combined effect of sections 164 and 165 of the Criminal Procedure Act, in so far as they related to alteration of a charge, during the trial and before judgement, were:

“(1) That every alteration or addition to a charge should be read and explained to the accused.

(2) That the Court should call upon the accused to plead to the amend (sic) charge and to say whether he was ready to be tried on the amended charge, and

(3) That the prosecution and the accused be allowed by the Court to recall or re-summon any witness.”

They then held that it was imperative that a fresh plea be taken on the amended charge.

I do not think that there can be any further quibble about the meaning of the words “alteration”and “amendment” or that there is any doubt that an “amended” charge has thereby been “altered”, after the decision of Jibowu, Ag. F.C.J.in OKWECHIME V. I.G. OF POLICE (1956) 1 F.S.C. 73.

The whole purpose of a plea in criminal trials must always be remembered and borne in mind. A person charged with an offence, upon being arraigned before the Court, has either got to confess to the charge, or to deny it by pleading (by word of mouth – “ore tenus”) at the bar the general issue he is deemed to have put himself upon his country for trial and wagers the prosecution to the proof of every fact and circumstance constituting the offence or offences in the charge or information.

Section 215 and 217 of the Laws of Eastern Nigeria 1963 deal with the recording of plea and the affect of a plea of not guilty respectively, Section 217 providing that by pleading generally the plea of not guilty, the person charged shall, without further form, be deemed to have put himself upon his trial. Without a plea, therefore, issue has not been joined between the accused and the prosecution, that is to say, between the citizen charged and his country. With a plea of “guilty” the issue joined is a confession (see S .218 of the Criminal Procedure Law of Eastern Nigeria, Cap. 31); with a plea of “not guilty” the issue joined is a wager of the prosecution to proof.

An amended charge or information becomes a new charge or information for which issue should once again be joined. The term “joinder of issues”, as opposed to plea, is more commonly used in civil cases, but the principle remains the same.

It has long been established in this country, through a long line of cases, that the plea of an accused person must be taken pursuant to S.215 before a trial of a charge or information commences, and a fresh plea pursuant to S.164(1) & (4), also taken where, in the course of trial, a charge or information is amended. In REX V. RICHARD PEPPLE and MARK OSTSIOGU (1949) 12 W.A. CA. 441, defending Counsel pleaded for the prisoner, changing his earlier plea of not guilty to one of guilty. It was held to be bad in law and nullity. The prisoner must plead himself. There was no plea in JACOB FAGBEMI V. I.G. OF POLICE (1955) 15 W.A.CA. 43, where the trial Magistrate refused the prisoner’s application to withdraw his election to be tried in the Magistrate’s Court and substitute election to be tried by the High Court. FOX V. COMMISSIONER OF POLICE (1947) 12 W.A.CA. 215 was also tried in the magistrate’s Court and involved amendment to the charge in the course of trial. So also involved was EDMUND UMEZ ERONINI V. THE QUEEN (1953) 14 W.A.CA. 366 although the trial was before the High Court. What happened in ERONINI is very akin to the one in the present appeal. In both cases two amendments were made and the plea after the second amendment in ERONINI was held not to have validated the non-plea after the first amendment.

This necessity for a fresh plea, where a charge is amended, has been emphasized in the recent case of JOSEPH OKOSUN V. THE STATE (1979) 3 & 4 S. C 36 at 52 (a case of Armed Robbery under the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970) where this Court held:

“We are not in any doubt that a fresh plea is 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.”

On the necessity, therefore, for a plea before trial, or for a fresh plea after an amendment of the charge or information, there can, on the decided cases, be no doubt.

Where problem arises, and an appeal court is often in some difficulty, is in the nature of the order to make for non-compliance of Section 164 of the Criminal Procedure Law. Should the Appeal Court set aside the verdict and order a retrial; or should it merely quash the conviction and sentence; or should it acquit and discharge the prisoner

Each case, and therefore what order to make, must depend on its own facts and circumstances. There can be no hard and fast rule for all cases. At p.73 of ABO DUNDU (Supra) the Federal Supreme Court was of the same view when it said:

“It is impossible to foresee all combinations of circumstances in which the question of ordering a retrial may arise, and it may be that further experience will lead us to formulate additional principles, or to modify those we have formulated in this judgement. We wish to make it cleat that the Court will be free to do this without infringing the doctrine of judicial precedent. ”

But the Court must in all cases strive to do substantial justice bearing in mind, always, that a guilty man should not go unpunished and that an innocent person should not be convicted or punished. This requirement for the Court to aim at doing substantial justice, in the face of technicalities – procedural or otherwise – and to dismiss an appeal where the Court considers that no substantial miscarriage of justice has actually occurred, is provided for in the proviso to S.20(1) of the Federal Court of Appeal Decree No. 43 of 1976 which enacts that:

“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.”

and, in identical words, in the proviso to S.26(1) of the Supreme Court Act, 1960, No.12of1960.

The principle was not first made the subject of statutory enactment in the above two legislations. It had been there before. The proviso to S.11 (1) of the West African Court of Appeal Ordinance Cap. 229 Volume VI Laws of Nigeria 1948 – an Ordinance which applied “to the Colony and Protectorate (including the Cameroons under British Mandate)” of Nigeria, made on 31st April 1934, bringing up-to-date and collating the Ordinances No.47 of 1933, No.6 of 1938, and No.23 of 1943-contained that provision. For the purpose of clarity it is necessary to set out the whole of the said S .11 (1) as follows:

“11.(1) The court of appeal on any such appeal against conviction shall allow the appeal if they think 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 before which the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal:

Provided that the court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred. ”

The section was re-enacted, with a few modifications in 1955, by the Federal Supreme Court (Appeals) Ordinance No.28 of 1985 to be see in Gazette Supplement No. 39 of 1st September 1955.

Thus, the West African Court of Appeal in deciding the cases hereinbefore cited, was aware of the said proviso and decided those cases on the issue of plea before commencement of trial, and after amendment of the charge or information, inspite of, and bearing in mind, the said provison.

Before the first amendment in the present appeal, eight witnesses had been regularly heard. After the amendment two witnesses, namely the doctor and the accused person were heard, in my view, improperly. The evidence of those two witnesses must be excluded, and if excluded, the question is whether the balance of the evidence was enough to justify a conviction. A similar point came for a decision in Eronini (supra). At p.368 the Court held on the issue as follows:

“We are impelled to hold, therefore, that the proceedings immediately following upon the first amendment were null and void and that they cannot be rendered otherwise by the subsequent amendment and fresh plea. The correct procedure would have been to commence the proceedings de novo. This not having been done we are of the opinion that the proceedings on the 28th July were a nullity and have not been and cannot be rendered valid by any subsequent proceedings.

There remains the question as to whether in such case the whole of the subsequent proceedings are a nullity and should be so declared, an order being made for a new trial or whether the proceedings subsequent to the second amendment and fresh plea are to be treated as a valid trial upon which if the evidence heard on 28th July be excluded (as it must be) there was insufficient evidence to warrant the conviction which should therefore be quashed.” Continuing the judgement at p.369 the Court reached the following conclusion:

“We are therefore constrained to reach the conclusion that the proceedings on the 28th July and following days until the delivery of judgment on the 11 th August constituted a valid trial and if in the course thereof the evidence adduced was insufficient to warrant conviction the appellant is entitled to an acquittal.”

In the same way, the instant appeal, if the evidence of the doctor and the prisoner were excluded, as they ought to be excluded, the balance of the evidence would not be enough to warrant the conviction of the appellant for the offence of the murder charged. The conviction for murder cannot, therefore, in my view be upheld.

But the statement to the police of the prisoner had been regularly received in evidence, through P.W.8 Corporal Raymond Iwueke, as Exhibit B. In that statement the accused person admitted that he macheted the deceased stating as his reason that the deceased and his two sons had come to fight him in his farm. Where, however, the deceased’s body was found, according to the evidence, was not in the accused’s farm. In the face of the facts adduced in evidence the question is: should an order for retrial not be made

As I have already stated, Counsel for the appellant had strenuously urged that having regard to the length of time the appellant had remained in custody an order for acquittal should be made. I must emphasize that where the justice of a case deserves that an order for retrial should be made, it ought to be made and a Court’s decision to make the order should not be affected by any leaning towards sentimentality such as, in this case, the length of time the appellant has remained in custody.

It so often happens that in murder cases the defence usually talks of justice only in relation to the accused person. Very often justice as it affects the victim of the murder charge is either forgotten or ignored by the defence. But just as it is essential that justice be done to the prisoner, so must it also be done to the deceased who, even in the lonely depths of his grave, cries out loudly for the circumstances of his death to be justly examined and justice meted to him.

Where, for instance, there is a serious and substantial case made out against the accused as in ORUCHE V. COMMISSIONER OF POLICE NORTHERN NIGERIA (1963) 1 All N.L.R. 262 but the trial judge made some procedural blunder in the course of trial, or, as in REX V. SHOD I PO (1948) 12 W.A.C.A. 374, the trial Court is found to lack jurisdiction” an appeal court will feel itself bound, in the interest of justice, to order a retrial. On the other hand, where an amendment, wholly unnecessary, is made to a charge, such as in the case of AFEHE HOMRE V. THE STATE (1974)5 S.c. 27-where the prisoner was charged and pleaded under 5.221 and later, prosecuting Counsel sought to amend, and amended, the charge by adding sub-section (a), this Court found there was no miscarriage of justice in the face of overwhelming evidence against the accused, although a technical error had been made in respect of the amended charge not to have been read over to the accused and his fresh plea not to have been taken thereon.

Although the categories of circumstances justifying an order for a new trial are not closed and vary from case to case, some of the factors considered relevant by Privy Council in DENNIS (REID) V. THE QUEEN (1979) 2 W. L. R. 221 at 226 deserves attention. Some of the factors are

(i) The seriousness and prevalence of the offence;

(ii) The probable duration and expense of a new trial;

(iii) The ordeal to be undergone for a second time by the prisoner;

(iv) The lapse of the time since the commission of the offence and its effect on the quality of evidence; and

(v) The nature of the case of the prosecution against the prisoner as disclosed in the evidence of the first trial- whether substantial or not.

These factors, by and large, agree with those formulated by the Federal Supreme Court in 1959 in ABODUNDU (supra) in which at pages 73-74 their Lordships (Abbot, FJ.; Brett, F.J.; and Mbanefo, F.J.) observed as follows:

“We are of opinion that, before deciding to order a retrial, this Court must be satisfied (a) that there has been an error in law (including the observance of the law of evidence) or an irregularity in procedure of such a character that on the one hand the trial was not rendered a nullity and on the other hand this Court is unable to say that there has been no miscarriage of justice. and to invoke the proviso to section 11(1) of the Ordinance; (b) that, leaving aside the error or irregularity, the evidence taken as a whole discloses a substantial case against the appellant; (c) that there are no such special circumstances as would render it oppressive to put the appellant on trial a second time; (d) that the offence or offences of which the appellant was convicted, or the consequences to the appellant or any other person of the conviction or acquittal of the appellant, are not merely trivial; and (e) that to refuse an order for a retrial would occasion a greater miscarriage of justice than to grant it.”

I have given careful consideration to all the circumstances of the present appeal including the defence of self-defence and provocation raised by the accused in his defence during the trial and have come to the conclusion that the justice of this case deserves an order for a new trial which if refused would occasion a greater miscarriage of justice. Accordingly, I would allow this appeal, quash the conviction and sentence, and order a new trial of the appellant in the High Court of the Enugu Judicial Division.

M. BELLO, J.S.C.: The main question for determination in this appeal whether a failure to call on the accused to plead to an amended charge, after a charge has been amended during the trial, vitiates the trial and that an appeal court has no alternative other than to quash any conviction founded on the amended charge irrespective of whether or not such failure has occasioned miscarriage of justice. The circumstances given rise to the question are as follows:

The Appellant was tried in the High Court of the former East Central State on a charge in information, to which he pleaded not guilty, alleging that he murdered one Oriaku Ojioma. In their evidence P. W.2 and P. W.3, a relation and wife of the deceased respectively, named the deceased as Oriaku Oji Oma. Another relation P.WA called him Oriaku Oji while P. W.5 and P. W. 7, a son and the employer of the deceased respectively, described him as Oriaku Ojioma Obu. In his statement to the police, exhibit A, the Appellant confessed to having killed Oriaku Oji. After the testimony of P.W.8 the charge was amended in order to meet the diversities of names of the deceased in the following manner:

“At this point, Amaefuna (State Counsel) 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.”

The trial judge did not call on the Appellant to plead to the amended charge. he proceeded to take the evidence of the last prosecution witness P. W .9, the doctor who performed the autopsy on the body of Oriaku Ojioma.

The record shows that after the accused had given evidence and the defence counsel had completed his closing address, the charge was further amended thus:

“Amaefuna (State Counsel) – would like to amend the information. Relies S .163 C. P . L. Would like to add after the words Oriaku 0 jioma in the particulars of offence the following words, alias Oriaku Oji Obu alias Oriaku Oji – Court – Granted

Amended charge read to accused person.

Plea – Not Guilty.”

In his reserved judgment the trial judge rejected the defence of the Appellant, which was self-defence, and convicted him of murder on the amended charge. The Federal Court of Appeal affirmed the conviction.

The only point canvassed at the hearing of the appeal in this Court hinges on the failure of the trial judge to call upon the accused to plead to the charge, after the first amendment, in accordance with the provisions of section 164(1) of the Criminal Procedure Law, Cap. 31, 1963 Laws of Eastern Nigeria. Relying on Joseph Okosun v. The State (1979) 3 and 4 S.c. 36 and RaimiAdisa v. A.S. Western Nigeria (1966) N.N.L.R. 144, learned Counsel for the Appellant contended that non-compliance with the sub-section rendered all the subsequent proceedings null and void and, that being the case, there was therefore no valid trial and the Appellant was entitled to an acquittal. The learned Director of Public Prosecutions, Anembra State, conceded that the trial was a nullity but urged us to order a retrial.

We invited learned counsel to address us to the curative provisions of the proviso to section 20(1) of the Federal Court of Appeal Decree, 1976. The learned Director of Public Prosecutions submitted that as the amendment merely added the alias names of the deceased in this charge and the identity of the deceased was not at issue, no substantial miscarriage of justice has actually occurred as the result of the non-compliance with the sub-section. He invited us to invoke the curative provisions of the proviso and dismiss the appeal. Learned counsel for the Appellant replied that since the trial was a nullity, there is nothing to cure and the proviso is inapplicable.

Now the question is: Is it settled law that a mere failure to call on accused to plead to an amended charge vitiates the trial irrespective of whether or not no substantial miscarriage of justice has actually occurred as the result of such failure A careful perusal of the cases relevant to the question seems to suggest that the law is far from being setttied. It is in a state of confusion. The cases may be classified into three compartments. Firstly, there are cases that answered the question firmly in the affirmative. Secondly, we have cases establishing that non-compliance with section 164(1) does not vitiate a trial if no substantial miscarriage of justice has actually occurred. Thirdly, there was 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. I propose to consider the cases in their respective classes.

Joseph Okosun v. The State (1979) 3 and 4 S. C. 36 is in the vanguard of the cases highlighting the view that non-compliance with section 164(1) of the Criminal Procedure Act renders a trial null and void. The appellant in that case was tried by a Robbery and Firearms Tribunal on a charge of the robbery of a tape recorder. In the course of the delivery of its judgment, the tribunal amended the charge by substituting the words record player for the words tape recorder in order to meet the evidence which proved the robbery of a record player. The tribunal did not call on the appellant to plead to the amended charge. In quashing the conviction of the appellant on the ground of noncompliance with the sub-section, this Court stated at pp.51-52:

‘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 Sections 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 vs. THE QUEEN14 W.A. CA. p.360 and ADISA vs. A-G. WESTERN NIGERIA -1966 N.M.L.R. p.144.

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.’

In Eronini v. The State (Supra) the appellant pleaded not guilty to a count charging him with stealing ‘a3253.14s.0d. Before the evidence was taken the charge was amended by substituting 12/’for 14/’. No fresh plea was taken. Subsequently during the trial the charge was further amended by substituting the words “between the months of March and April 1951” for the original words in the charge “during the month of April 1951 “. The amended charge was read and fresh plea entered. The trial resulted in the conviction of the Appellant. The West African Court of Appeal held that the failure to take fresh plea after the first amendment as provided by section 164(1) of the Criminal Procedure Ordinance, Cap. 43, 1946 Laws of Nigeria rendered the proceedings immediately following the first amendment null and void and that they could not be cured by the subsequent amendment and the fresh plea. The Court expressed great lamentation in reaching that rsult in these strong terms:

“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 remain the Law effect must be given to them and non-compliance therewith must carry its inevitable consequences. The fact that this Ordinance is particulary 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 of 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 therefrom. 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 miscarriage of the proceedings and perhaps of justice.”

I think the West African Court of Appeal would have found solace in the proviso in section 11(1) of the West African Court of Appeal Ordinance, Cap. 229, 1948 Laws of Nigeria, had that Court adverted its mind to that proviso which empowered it to dismiss an appeal if it considered that no substantial miscarriage of justice had actually occurred, notwithstanding that the point raised in the appeals might be decided in favour of the appellant.

The appellant in Raimi Adisa v. A -G Western Nigeria (Supra) pleaded not guilty to a charge of “manslaughter” and after three witnesses for the prosecution had given evidence the charge was amended to that of “murder”. No fresh plea was taken and the trial judge refused the application by the defence counsel to recall the three witnesses, who had given evidence, for cross-examination. I consider it pertinent to set out the principal reasons given by the Supreme Court for allowing the appeal in that case and remitting the case for a retrial. The Court stated at p.146 of the report:

“In the instant case, it cannot be said that the amendment made was not substantial. The particulars of offence in the information before the amendment was clearly one for an offence of manslaughter contrary to Section 263 of the Criminal Code of Western Nigeria. In the particulars in respect of offence of manslaughter set out as items No. 5 in the 3rd Schedule to the Criminal Procedure Act (Cap. 43), the words “unlawfully killed” are used; whilst item No.3 in the Schedule set out particulars for a charge of murder; the word used is “murdered” .

It was therefore imperative, in our view, for a fresh plea to be taken by the Judge; and for the appellant t be asked whether he was ready to be tried on the amended charge. Agam, Counsel for the appellant mSlsted on his right to recall the three witnesses who had earlier given evidence for further cross-examination on the amended charge, but the learned Judge refused. This, in our view was clearly wrong. The right to recall the witnesses is a right which the learned Judge could not rightly deprive the appellant. The evidence of the Pathologist (1st witness for the prosecution) was no doubt material whether the act complained was one of manslaughter or murder. We are unable to say, in the circumstances, that this was a trifling mistake on the part of the Judge which did not result in a substantial miscarriage of justice.”

To my mind Raimi Adisa v. A-G Western Nigeria is not on all fours with Okosun v. The State and Eronini v. The Queen. The issue of substantial miscarriage of justice was fully considered in Adisa’s case and the appeal was allowed in that case because the Supreme Court was unable to say that the failure to comply with sections 164 and 165 did not result in a substantial miscarriage of justice. The issue of substantial miscarriage of justice was not considered in the other two cases.

The Queen v. Michael Ogunremi (1961) All N.L.R. 467 is a classical example of the commitment of the former Federal Supreme Court to stare decists. The appellant in that case was tried for the offence of rape contrary to section 229 of the Criminal Code. After all the evidence had been heard, the defending counsel in his closing speech pointed out that section 229 did not deal with rape. The Prosecuting Counsel invited the judge to amend the charge by substituting section 358 for section 229. The amendment was effected but no fresh plea was taken because the judge thought it was unnecessary to take a fresh plea. The appellant was convicted on the amended charge. In allowing the appeal, the Federal Supreme Court stated:

“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.”

The question may be asked: Since the appellant in that case was not prejudiced by the failure to comply with section 164 of the Ordinance, would the Federal Supreme Court have reached the same conclusion as they did if they had considered the proviso to section 15(1) of the Federal Supreme Court (Appeal) Ordinance, Cap. 67, 1956 Laws of the Federation of Nigeria and Lagos which empowered that court to dismiss an appeal if it considered that no substantial miscarriage of justice had actually occurred as the result of non-compliance with the section I think the answer to the question may be found in the cases that laid down the test as to what constitues substantial miscarriage of justice. I intend to refer to such cases in due course.

In so far as the cases falling within the class of cases under consideration are concerned, I have already commented on Eronini’s case. It remains to consider Fox v. Police (Supra), in which the charge was amended during the trial and the case proceeded until the prosecution had closed its case and the accused had given evidence. Before judgment was delivered it was pointed out to the magistrate that the accused had not pleaded to the amended charge. The magistrate tried the case de novo and the accused was convicted. In dealing with the ground of appeal complaining against the trial de novo, the West African Court of Appeal held that the failure to comply with section 164 of the Criminal Procedure Ordianance rendered the first trial null and void and that it was competent for the magistrate to try the case de novo. The appeal was accordingly dismissed. It seems to me the decision in that appeal was in accord with substantial justice for it would have been a grave miscarriage of justice to quash the conviction when the appellant had not been convicted in the first trial and he had not suffered any punishment. It appears therefore that Fox and Raimi Adisa were not gratuitous escapees from justice through the open gate of mere technicality.

In concluding, it is clear that the decision in Okosun v. The State was founded on the decisions in Eronini’s case and Adisa’s case while the decision in The Queen v. Ogunremi was based on Fox’ case and Eronini’s case. I have already shown that Adisa’s case was decided on the principle of substantial justice and Fox’ case was consistent with that pnnciple. No substantial miscarriage of justice had actually occurred in the three other cases, i.e. Okosun v. The State, The Queen v. Ogunremi and Eronini’s case. On the contrary, the very Court that decided Eronini’s case, which was the common denominator of the other two cases, lamented that its decision in that case might result in miscarriage of justice.

I shall now proceed to deal with those cases in which the issue of substantial justice was specifically considered.

James Edun & Others v. I.G. Police (1966) 1 All N.L.R.171 at p.21 maybe cited as an authority showing that a failure to comply with the second limb of section 164 (1) of the Criminal Procedure Act, which reads:

“164 (1) 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.”

does not vitiate a trial if there was no substantial miscarriage of justice. One of the complaints in that appeal was that the magistrate omitted to ask the accused persons if they were ready to be tried on the amended charge. The court held that although that complaint was technically well founded no miscarriage of justice had occurred.

Moreover, 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: See Bisiriyu Shosaga v. The King 14W.A.CA. 22andJonesv. I.G. Police 5 FSC 38. The observations of this Court in Luke Echeazu v. Commissioner of Police (1974) 2 SC55 at 69 are apt:

“We would venture to express the opinion that while sections 164 and 165 of the Criminal Procedure Act are designed to afford an accused person 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.”

In Afehe Humbe v. The State (1974) 1 All N.L.R. (Part 1) 355 the appellant pleaded not guilty to a charge of culpable homicide punishable under section 221 of the Penal Code. The charge was amended during the trial by substituting section 221(a) for section 221. After the amendment of the charge, the trial court did not comply with section 208(2) of the Criminal Procedure Code, which provides:

“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 a new charge shall be read and explained to the accused and his plea thereto shall be taken.”

While dismissing the appeal in that case this court stated at p.362-363 of the report:

“We have come to the conclusion that this is a case in which to apply, as suggested by learned Acting Director of Public Prosecutions, the provisions of section 382 of the Criminal Procedure Code. That section saves a situation like the present one where, in the absence of seciton 382 of the Criminal Procedure Code, we would have applied the proviso to section 26( 1) of the Supreme Court Act which reads as follows:

’26 (1) The Supreme Court on any appeal against conviction under this Part 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 before which the appellant was convicted should be set aside on the ground of a wrong decision or any question of law or that on any ground there was a miscarriage of justice and in any other case, subject to the provisions of sub-section (3) of this section and section 27 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. ‘

There was in fact an amendment of the charge within the ordinary and legal meaning of that word and clearly there has been a non-compliance with the provisions of section 208(2) of the Criminal Procedure Code. The appellant could have succeeded on the appeal on the grounds of law which had been raised in his favour but having regard to all the circumstances of the case and because those circumstances demonstrate that there could not be and that indeed there was no failure or miscarriage of justice in any shape or form we dismiss the appeal under the provisions of the aforementioned statutes.”

I think I may mention Regina v. Williams (Roy) (1977) 2 W.L.R. 400 which shows the modern approach of the Criminal Court of Appeal in England to the problem. Roy Williams was convicted on indictment of dishonestly handling property at Bristol Crown Court. The question for consideration on appeal was whether the proceedings which resulted in his conviction were a miss-trial and a nullity because he had never been called upon to plead. In dismissing the appeal, the Court of Appeal held that the omission of a formal arraignment and the failure to take a plea did not in the circumstances of that case vitiate the trial. It may be noted that the relevant provisions relating to plea in England are imperative. Section 6(1)(a) of the Criminal Law Act, 1967 reads:

“(1) Where a person is arraigned on indictment (a) He shall in all cases be entitled to a plea . . . . .”

Reference may also be made to Commissioner of Police, Mid-Western Nigeria v. Layinka Akpata (1967) 1 All N.L.R. 235 wherein this Court amended the charge in its judgment and unheld the conviction of the appellant on the charge as amended. The relevant portion of the judgment at p.240 reads:

“Count 3 seems to us an alternative charge to count 1. It speaks of destroying the amount of ‘a3173’9715s’970d, alleged stolen. We are convinced on the evidence before the learned magistrate that the money was not destroyed and the charge of “wilfully destroyed” was not the proper charge. The charge from the evidence before the court should have been one of removing or concealing, and the words “wilfully removed” should have been substituted as the evidence would have been in no way different in respect of it. Both the learned magistrate and the judge himself could have made the substitution as the respondent has not destroyed the money. We hereby substitute the words “wilfully removed” for “wilfully destroyed” in the charge.”

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, vitiates the trial and the contrary view that such failure does not vitiate the trial if no substantial miscarriage of justice has actually occured have the over-whelming support of this Court. 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. For my part, I decline to associate myself with those cases in which, with lamentations, substantial justice was sacrificed on the alter of mere technicality. I find solace in the company of those Justices who appreciate that the function of the Court is to ensure that in all cases substantial justice has been done without having undue regard to 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. The next question for consideration therefore is: Has substantial miscarriage of justice actually occurred by the failure to call upon the Appellant in the case in hand to plead to the amended charge

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 substantial miscarriage of justice. 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: See Bahaji Yaro v. The State (1972) 1 All N.L.R.124at 128.

In The Queen v. Aderogba (1960) 5 F.S. C. 212 at 216 the Court adopted the test applied in the Court of Criminal Appeal in England as to what constituted substantial miscarriage of justice within the meaning of the proviso to section 4(1) of the Criminal Appeal Act 1907 of England from which the proviso to section 26(1) of the Act was modelled.

The adopted test reads:

“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 legislature 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. The court must always proceed with caution when it is of opinion that a wrong view of the law has been taken by the judge presiding at the trial, but when it is apparent, and, indeed, undisputed, as It is and must be in this case, that no embarrassment or prejudice had in fact been suffered in consequence of the pleader having made the manifest error above mentioned, the court must act upon the proviso in this section of the Act. ”

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.

Now section 20(1) of the Federal Court of Appeal Decree, 1976 provides:

“20 (1) 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 this appeal if it considers that no substantial miscarriage of justice has actually occurred.”

It may be observed that the words of the proviso to the sub-section are identical with the words of the proviso to section 26(1) of the Act. It is legitimate therefore to apply to the proviso to the Decree the test used in the application of the proviso to section 26(1) of the Act.

Now applying the tests to the facts and circumstances of 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 all the witnesses, the deceased and the Appellant were members of the same community and knew themselves. The amendment did not suggest any mistaken identity of the deceased not did it give rise to any duplicity. It simply added the other names by which the witnesses knew the very deceased. The Appellant has been consistent in his confession that he killed the deceased in self-defence. He stated that in his statement to the police, in his evidence at the trial and in his grounds of appeal to the Court of Appeal and to this Court. He never denied having killed the deceased. His defence of self-defence was rejected, rightly in my view, by the trial Court. Under the circumstances, in my view, 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.

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 not also doing substantial justice to the society to burden it with the expenses of a retrial and the inconveniences that the witnesses may suffer.

Accordingly, I am of the opinion that although the point taken by learned counsel for the Appellant is technically correct, no substantial miscarriage of justice has actually occured. I would dismiss the appeal.

Other Citation: (1979) LCN/2137(SC)