Adisa V Attorney-general, Western Nigeria (1965)

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PER ADEMOLA JSC

The appellant in this case was charged with murder contrary to Section 257(1) of the Criminal Code of Western Nigeria. He Was convicted of the offence and sentenced to death by Ogunkeye, J., In the High Court of Western Nigeria he has appealed to this Court against his conviction. We do not propose to go into the facts of the case itself, but we must call attention to certain irregularities at the trial.

The particulars of offence reads: –

“Raimi Adisa (m) on the 6th day of February, 1964, at Esu-Awoie Compound, Orayan, Ibadan, in the Ibadan Judicial Division, unlawfully killed one Kamoru Murana.”

After three witnesses had given evidence for the prosecution, including the Pathologist who performed the autopsy on the deceased, the State counsel appearing for the prosecution asked for and obtained leave of the court to amend the information by deleting the words “unlawfully killed”. No objection was taken by the defence counsel who, however, requested that he be given an opportunity to recall all the three witnesses who had given evidence, for further cross-examination. The learned trial Judge refused the application because he did not “consider the amendment is of a nature as will affect the evidence already given one way or the other.” He then proceeded to call other witnesses in the case and later convicted the appellant as stated above.

We note, in the first place, that the amended charge was never written down as such, but the word “murdered” appeared to have been substituted in the original information, which in itself we regret to say, does not appear from the record to have been signed by a State counsel or a law Officer. Further, it was not recorded that the amended charge was read out to the accused person, nor was his plea re-taken.

Counsel for the appellant directed our attention to Section 165 of the Criminal Procedure Act and argued that it was imperative that the Witnesses who had already given evidence be recalled after the charge had been amended. He referred to the case of R. v. Bisiriyu Shoaga 14 W.A.C.A. 22. The State Counsel relying on Jones v. Inspector-General of Police 5 F.S.C. 38 at p. 41 submitted that the amendment, in any case, was slight and having regard to the facts of the case, there was no miscarriage of justice.

Now, the combined effect of Section 164 and 165 of the Criminal code in so far as it relates to alteration of a charge during the trial and before judgment, are:-

(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 amended 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 who may have been examined and examine or cross-examine such witness.

The effect on non-compliance with these sections of the Code has been considered in a few cases. In Eronini v. the Queen effect of non-compliance with Section 164, Criminal Procedure Act was considered. In that case, a charge was amended during the trial but the Judge omitted to call upon the accused to plead to the Amended charge and to state whether he was ready to be tried on that altered charge. It was held that the amended charge constitutes a fresh charge and failure on the part of the Judge to take fresh pleas and to ask the accused whether he was ready to be tried on that charge was fatal, and the appeal was allowed.

The case Bisiriyu Shoaga v. The King 14 W.A.C.A. 22 is a case of non-compliance with Section 165, Criminal Procedure Act. In that case, the accused had counsel at the trial. The trial Judge did not ask counsel if he wished witnesses to be recalled after an amendment as provided by Section 165. On appeal, it was held that the right to recall and cross-examine a witness who had given evidence is a right which cannot be taken away from an accused person, and of which he must be informed by the court, if he is not legally represented. The appeal was however dismissed on the ground that it must be assumed that counsel is aware of the rights of the person he represents, and the fact that he did not ask to recall any of the witnesses who had given evidence must be be presumed to mean that he had no desire to do so.

In Robert Adeniyl Jones v. Police 5 F.S.C. 38, the charge was amended and a fresh plea was taken; the magistrate however omitted to ask the appellant again whether he consented to summary trial and also omitted to inform the appellant, who, at that stage, was not being defended by counsel, of his right to recall and question witnesses who had given evidence. On appeal, the High Court was of the opinion that these points could be decided in favour of the appellant, but nevertheless dismissed his appeal, on the ground that there was no substantial miscarriage of justice -Sections 39 and 45 of the High Court of Lagos Act. On further appeal to this Court, however, the appeal was allowed on the ground that the proceedings were a nullity since the appellant was not put on his election de novo and that Section 45 of the High Court of Lagos Acts would not apply in a case of that nature.

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 283 of the Criminal Code of Western Nigeria. In the particulars in respect of offence of manslaughter set out as item 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 sets 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 to be asked whether he was ready to be tried on the amended charge. Again, counsel for the appellant insisted 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 of which the learned Judge could not rightly deprive the appellant. The evidence of the Pathologist (1st witness for the prosecution) was no doubt material on whether the act complained of was one of manslaughter or murder. We are unable to say, in the circumstances, that this was a trifling mistake on part of the Judge which did not result in a substantial miscarriage of justice.

It remains for us to decide whether this is a matter which should be sent back for retrial or not. After the most anxious consideration, we think, in the circumstances of this case, and having taken into account the principles set down by this Court in R. v. Yesufu Abodundu and Others (1959) 4 F.S.C. 70 at p. 73, we are of the view that the case be sent back to the High Court Ibadan Judicial division of Western Nigeria for a fresh hearing.

Other Citation: (1965) LCN/1190(SC)