By Moruff O. Balogun Esq.
Citation: DANIEL EDET V. F.R.N (2021)12 NWLR PT. 1791 AT 566.
Summary of facts:
The prosecution on the 14th of Sept. 2012 filed a charge dated against the appellant and the other accused persons. The charge had 2 counts laid against the accused persons. While count one of the charge was brought under section 1(3) of the Advance Fee Fraud and Other Related Offences Act, count two was brought pursuant to section 1(1) of the Dishonoured Cheques Act.
The plea of the appellant and the other defendants was taken on the 26th of November 2012 and trial proper commenced on the 17th of January 2013 with the fielding of PW1 by the prosecution. The prosecution called a total of 4 witnesses and closed its case on the 30th of June 2014.
On the 19th of August, the prosecution filed an amended charge against the appellant and the other defendants. In the amended charge, they were charged in the alternative with the offence of cheating under Section 325 of the Penal Code. Thus bringing the
total number of counts against them to 3.
The appellant filed a written no case submission on the basis of the two counts charge. However, the trial court dismissed the no case submission. His objection to jurisdiction of the court was equally dismissed.
At the conclusion of trial, the appellant’s address considered the trial on the basis of the initial two counts while the prosecution’s address was based on the amended charge.
After the adoption of their written addresses, the trial court rendered final judgment in the case on 30-3-2017, discharged and acquitted the appellant on count 1 and convicted him on counts 2 and 3 of the amended charge and was sentenced accordingly.
Dissatisfied with the judgment of the trial court, the appellant appealed to the Court of Appeal. At the appeal, he contended that the trial was a nullity as the amended charge was not read or explained to him, and that he did not take a fresh plea after the amendment of the charge which is a pre-requisite of a valid trial.
Held: (Unanimously allowing the appeal).
The following issues were raised and determined by the Court of Appeal:
On whether party can alter or amend a charge or court process without an order of court- By the provision of section 216(1) of the Administration of Criminal Justice Act, 2015, neither party to a criminal proceeding can on its own amend or alter a charge or any process in the proceedings without the leave or permission of the trial court. The exclusive discretionary power to grant or refuse permission to amend a charge before judgment rests on the court.
In the instant case, the prosecution merely filed the charge headed amended charge. There is nothing in the record of appeal that shows that the trial court permitted the amendment before the prosecution relied on the charge as amended in its written final address. In the circumstance, the prosecution was therefore wrong to have based its written final address on a proposed and therefore legally ineffective amendment of the charge.
Per AGIM, J.C.A. at pages 581-582:
“In law it is not yet an amended charge until the court has permitted the amendment. The amendment must be made before the pronouncement of judgment. Merely stating in the judgment that the charge was amended does not amount to such permission to amend. Such a statement or holding in the judgment is perverse as there is nothing in the record of appeal that shows that such amendment was made with leave of court.
The prosecution was therefore wrong to have based its written final address on a proposed and legally ineffective amendment of the charge. The address ought to have been based on the initial charge that remained extant until it is amended with leave or permission of court, whereupon it would become superseded and eclipsed by the court permitted amended charge. The arguments therein that the prosecution proved beyond reasonable doubt that the defendant committed the offences in the three counts of the proposed amended charge and that the defendant be convicted for the commission of those offences is incompetent since the amended charge is a proposal and is legally ineffective as a charge. Equally, the trial court was wrong to have based its judgment on the proposed amended charge and convicted the appellant for committing the offences in a proposed and legally ineffective amended charge. The entire judgment is incompetent and a nullity”.
On when process of court said to be abandoned-
A process of court or any part of it is said to be abandoned when the party that filed it ignores it or fails to invite the court to consider it or deal with it, while presenting his case or making his final address to the court before judgment. Some examples are where a party who filed a motion failed to move it or invite the court to deal with it and proceeds with his case or where an appellant failed to distil an issue for determination from a ground of appeal or failed to argue an issue raised for determination.
In such situations, the motion on notice or ground of appeal or issue for determination as the case may be, would be deemed abandoned. In the instant case, the prosecution filed the amended charge, its address argued that the evidence adduced by it proved beyond reasonable doubt that the appellant committed the offence in the amended charge and urged the court to convict the appellant on those counts.
It is therefore not surprising that the trial court’s judgment was based on the amended charge and same was perverse.
On requirement of fresh plea on amendment of a charge and effect of failure thereof- By the provisions of sections 216, 217, 218 and 219 of the Administration of Criminal Justice Act and section 164 of the Criminal Procedure Act which compliance are mandatory, any further proceeding in a criminal trial after the amendment or alteration of the charge without reading and explaining the amended charge to the defendant and his plea to the amended charge taken is null and void. The failure to comply with the mandatory provisions of the stated laws render the further proceedings after the filing of the amended charge and the judgment invalid and a nullity. The record of proceedings of the court must state expressly how the said provisions were complied with.
In the instant case, there was no such record in the record of proceedings. The holding of the trial court in its judgment that the amended charge was read to the defendants and they pleaded not guilty” was not supported by the record of the proceedings before the judgment. Trying the appellant on the amended charge without reading and explaining it to him and taking his plea to the amended charge also violated his fundamental right to air hearing given to him by section 36(a) and (b) of the 1999
On effect of failure to take fresh plea after amendment of a charge which contains several counts-
If a charge contains several counts and, after an amendment the trial court fails to permit the accused to enter a fresh plea to the counts which have been altered or to new counts which have been added to the charge, the conviction against the unamended counts may not necessarily be quashed.
In such a situation, the nullity decision will affect only the new and altered counts. The earlier plea entered to the counts which were not amended is still valid. In the instant case, the amendment of the charge did not end with the introduction of count 3. Counts 1 and 2 of the initial charge were also amended to be alternative to each other instead of remaining as they were in the initial charge as independent and distinct counts of offences. In view of this amendment in the relationship between the said two counts, there was need for the alteration or amendment to be read and explained to the appellant and his plea taken thereto in keeping with S. 216 (1) and (2) and S. 217(1) and (2) of the ACJA.
On principles governing procedure on alteration of a charge-
The law on the procedure on alteration of a charge as prescribed by section 164 of the Criminal Procedure Act is as follows:
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.
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 or altered charge had been the original charge.
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.
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.
Compliance by the court, with the provisions of section 164 of the Criminal Procedure Act is mandatory. Therefore, failure to request the accused to plead to the amended charge will result in the whole proceedings being declared null and void. In the instant case, the failure of the trial court to strictly comply with these mandatory provisions of section 164(1) of the Criminal Procedure Law rendered the entire proceedings at the trial, a nullity.
Moruff O. Balogun Esq.
Ijebu Ode, Ogun State.
The content of this publication/analysis of this court of Appeal judgment is entirely that of its author