Afehe Humbe Vs The State (1974)
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COKER, JSC.
The point raised by this appeal is of special importance for it involves a matter of criminal procedure which may in appropriate cases entail serious consequences. As for the present case itself, the facts are despicable and admit of no argument before this court.
The appellant was charged with and convicted of culpable homicide punishable with death in that the appellant, who had had a previous fight with his brother, returned after they were apparently pacified and later emerged with a knife with which he savagely stabbed his brother hacking him to death which took place instantaneously on the spot. He again returned into his room but later emerged with the knife still unsheathed and called on his brother before realising that he indeed was dead. The charge on which he was tried reads as follows:-
“That you, Afehe Humbe, on or about the 24th day of March, 1973 at Ugondo village near Donga in Wukari Division within the Gboko Magisterial District, you did commit culpable homicide punishable with death in that you caused the death of ISHOR HUMBE (m) by doing an act to wit you stabbed him with a double edged knife and caused a wound which penetrated his chest cavity with the intention of causing his death and thereby committed an offence punishable under Section 221 of the Penal Code.”
At his trial, five witnesses gave evidence for the prosecution and at the end of the evidence of the 5th P.W., P.C. Ayila Kosu, No. 34461 of the Nigeria Police, Wukari, the learned State Counsel who appeared for the prosecution announced that that was the case for the prosecution and that he would proceed to sum up the case for the prosecution. He then made the following application – “Golu- I humbly make an application for amendment of the charge. I make it under S. 181 of the C.P.C. I am sorry it should be S. 208 (c) of the C.P.C. I want the last section to read 211 (a) instead of s. 221.”
The appellant was represented by counsel and it does not appear from the records that learned counsel representing the appellant was ever consulted about the proposed amendment for, as soon as the application was made, as shown above, what happened thereafter is recorded by the learned trial Judge as follows:- “Court – The application is granted. In the charge Section 221 (a) shall be substituted for Section 221.” Learned State Counsel then summed up the case for the prosecution and the appellant gave evidence in his own defence.
Thereupon learned counsel for the appellant addressed the court at length suggesting for the appellant a defence of provocation in the course of and contemporaneously with a sudden fight and asking that his client be convicted only on some alternative sections of the Penal Code.
He did not breathe one word concerning the amendment of the charge and the way in which it was carried out. Eventually, in the course of a reserved judgment, the learned trial Judge convicted the appellant and sentenced him to death.
Hence this appeal. Before us on appeal the only ground of appeal canvassed reads as follows:- “That the whole proceedings were a nullity in that I was convicted and sentenced on an amended charge which was neither read nor explained to me and to which I made no plea in accordance with Section 208 (2) of the C.P.C.”
Learned counsel for the appellant submitted that the provisions of Section 208 of the Criminal Procedure Code are peremptory and that non-compliance with those provisions implied that the appellant never pleaded to the charge or offence for which he was tried and in respect of which he was convicted.
In answer to this argument the learned Acting Director of Public Prosecutions (Benue-Plateau State) who opposed the appeal submitted, firstly, that there was in fact no amendment of the charge in the true sense of that exercise and that in any case having regard to the nature of the amendment and the evidence in the case, the court should apply the provisions of Section 382 of the Criminal Procedure Code.
It is obvious that the charge against the appellant and to which he had pleaded at the inception of the trial was one under Section 221 of the Penal Code simpliciter. That Section provides as follows:- “221. Except in the circumstances mentioned in Section 222 culpable homicide shall be punished with death – (a) if the act by which the death is caused is done with the intention of causing death; or (b) if the doer of the act knew or had reason to know that death would be the probable and not only a likely consequence of the act or of any bodily injury which the act was intended to cause.”
It is also obvious that at the stage when the trial commenced, that particular sub-section of Section 221 under which the charge was laid, was not shown on the charge. The appellant, although represented by learned counsel all the way, pleaded to the original charge as laid and then, and not until now, did not complain of its inadequacy. In making the application for amendment, learned State Counsel relied on Section 208 of the Criminal Procedure Code. That section reads as follows:- “208(1) Any court may alter or add to any charge or frame a new charge at any time before judgment is pronounced.
(2) Every such alteration or addition or new charge shall be read and explained to the accused and his plea thereto shall be taken.” It is not in dispute that after the amendment of the charge, Section 208 (2) was not complied with by the court. As we understand the argument of the learned Acting Director of Public Prosecutions, he is of the opinion that there had in fact been no amendment or that there should have been no need for any amendment. We do not accede to the argument that there was no amendment. Learned counsel who applied for the insertion of the word “a” in brackets after Section 221 in the original charge, did state that he was applying for an amendment of the charge and the learned trial Judge himself made it plain that he was granting an application for an amendment. The Judge’s order is that – “in the charge, Section 221(a) shall be substituted for Section 221.”
Thus, in practical terms, there was only an addition or inclusion of the word “a” in brackets in the original charge, an addition or inclusion which entails no intrinsic difference in the charge to which the appellant had already pleaded since the original charge contemplates in reality an accusation under both Section 221 (a) and Section 221 (b) of the Penal Code. Nevertheless, there has been an alteration of the existing nature of the offence, apparently in a way more favourable to the appellant but, all the same, an amendment within the provisions of Section 208 of the Criminal Procedure Code.
We think that there was indeed an amendment and that the provisions of Section 208 should have been complied with and, if necessary, the further provisions of Sections 209, 210 and 211 of the Criminal Procedure Code. We find 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 limits to which that sort of view can be subjected. In other words, one does not know where to stop in proposing a yardstick for determining whether in fact an amendment had taken place.
We are more impressed with the other arm of the argument of the learned Acting Director of Public Prosecutions to the effect that 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 sub-sections of Section 221 of the Penal Code he proposed to convict the appellant. We have already referred to the nature of the amendment sought and granted. It is fair to observe that the trivial nature of the amendment completely misled all concerned- counsel on both sides and the court – as to the legal formalities which an amendment inevitably entails and must have been responsible in no small measure for the omission by learned counsel for the appellant to claim the rights to which his client was, on account of this amendment, entitled during the trial and to make a point of it in the course of his final address to the learned trial Judge.
Chapter XIX of the Criminal Procedure Code deals with “Charges” and Section 200 prescribes as follows:- “200. Charges may be as in the forms set out in Appendix B modified in such respects as may be necessary to adapt them to the circumstances of each case.” If one turns to Appendix B to the Criminal Procedure Code and looks at the form for charging an offence under Section 221, one finds that it reads thus:- “(b) First – That you on or about the …………….day of…………………..,19………………………………. at …………………….committed culpable homicide punishable with death by causing the death of A.B. and thereby committed an offence punishable under Section 221 of the Penal Code and triable by the High Court.”
Manifestly, no sub-section is shown in the form, and it is a moot point whether, without asking for particulars at the trial, an appellate court could be asked on appeal to exercise the powers contained in Section 222 of the Criminal Procedure Code which requires that the error complained about must be such as had led to “a failure of justice.”
Clearly therefore, there is considerable force in the argument of learned Acting Director of Public Prosecutions that there should not have been an application to amend the charge and that as it stood the charge should have sustained the trial and the conviction of the appellant.
That argument possesses considerable weight and when it is considered along with Section 206 of the Criminal Procedure Code, which provides as follows – “206. No error in stating either the offence or the particulars required to be stated in the charge and on 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 and it has occasioned a failure of justice.” the usefulness of the argument is evident.
The only question now concerns the fate of the appeal in the circumstances which we
Other Citation: (1974) LCN/1922(SC)
