Nosiru Attah Vs The State (1993)
LawGlobal-Hub Lead Judgment Report
MOHAMMED, JSC.
The single issue formulated by the learned counsel for the appellant, from the ground of appeal filed in this appeal readsas follows: “Whether the Court of Appeal was right in holding that the failure to take the plea of the appellant on all the counts which made up the amended charge did not render the whole proceedings null and void.”
The appellant was arraigned before Obadina, J., of Lagos High Court on a four-count charge of armed robbery and conspiracy to commit armed robbery, contrary to sections 402(2) (and 403A of the Criminal Code Law of Lagos State. At the end of the trial, during addresses, the prosecution was granted leave to add a fifth count. The count was based on being in possession of a thing reasonably suspected of having been stolen, contrary to section 430(1) of the Criminal Code Law. In his judgment the learned trial judge convicted the appellant of the offences of armed robbery and conspiracy to commit armed robbery.
He however discharged and acquitted the appellant of being in possession of a thing reasonably suspected of having been stolen. The appellant was sentenced to thirty years imprisonment on each count, The sentences were made to run concurrently. The brief facts of the prosecution’s case are in the following narrative: Mrs. Yetunde Oduneye testified, in this case, as PW.1 and told the trial court that on 27th January, 1982, at about 10.30a.m, she was coming from the market when she saw a white Passat car parked in front of her house. She saw the appellant sitting in the car with the engine of the car no. Immediately the appellant saw her he blew the horn of the car three times. As soon as she parked her car a neighbour warned her that there were three people inside the house and one of them was carrying a shot-gun. Mrs. Oduneye stood by her car. A few minutes later she saw a man, who was later known to be Mr. Olude, coming along the street. Mrs. Oduneye sought his help. But she warned him that one of the intruders was holding a gun. Mr. Olude went inside the house and challenged the intruders and when they rushed out, Mrs. Oduneye saw three people rushing out of the house.
They went straight into the waiting Passat car. The appellant who was in the car drove off. Mrs. Oduneye saw one of the robbers holding a gun: the second was holding a broken guilder bottle and the third was carrying the handbag of her neighbour, Mrs. Florence Beyioku. People began to shout Ole! Ole! Ole! meaning thief thief thief. The robber holding Mrs. Beyioku’s bag dropped it and the one holding a gun started shooting in the air to scare the people away. The road was rough and the car could not gain speed. The car came towards Igbobi Round About where three mobile policemen were on duty. When the policemen saw a Passat car with registration No.LA 1251 BD being pursued by a crowd shouting thief! Thief! They entered another vehicle and gave a chase. The vehicle reached a dead end, near the army gate, and it stopped. The appellant was arrested. When asked about the others the appellant said they had ran away. A lady’s handbag containing some items, a bunch of keys, a necklace, two driving licences, and some other articles were found in the car. Mrs. Oduneye told the trial court that the robbers stole her two neck chains, a pair of ear rings and N250.00 cash. Mrs. Beyioku, PW.2, narrated in evidence that they stole her jewellries worth N4,000.00, N400.00 cash and her sons headphone cassette.
Mrs. Beyioku was later invited at the police station where she identified the jewelries that were stolen from her flat. Mr. Biodun Awoyungbo, PW. 3 in his evidence told the trial court that the burglars stole his wrist watch in his flat and N768 in cash. In his wife’s bedroom they removed a box of trinkets and N500.00 in cash. The three mobile policemen also gave evidence for the prosecution and described how the appellant was arrested. The appellant on his part gave the only evidence for his defence. He told the trial court that on the day in question he was driving his father’s Passat car Reg. No. LA 1251 BD on his way to his shop at No. 42B Tejuosho Road, Surulere. When he got at Defecto a saloon car hit him from the back. Three men came out of the car that hit him and began to argue with him. Later two mobile policemen came and directed them to move their cars to the side in order to allow the traffic to flow. He was then asked about his vehicle’s particulars; and thereafter they were all taken to Panti Police Station. At the police station one of the men that hit his car told the police that the Passat car was a stolen vehicle. The appellant told the court that the police searched his house. He denied robbing anybody on the 27th January, 1982.
At the close of the case for the defence Mr. Popoola, learned counsel for the appellant, addressed the court. Mrs. Alan, Senior State Counsel, who appeared for the State, asked for an adjournment to prepare for a reply. On the adjourned date Mrs. Alao brought an application under section 162 of the Criminal Procedure Law asking for permission to amend the charge. Mr. Popoola, after going through the proposed amendment raised no objection to the application.
The learned trial judge granted the application and the charge was amended accordingly. In the amendment a fifth count of being in possession of a thing reasonably suspected of having been stolen was added to the charge. Thereafter the court recorded the following proceedings: “Registrar – Please read the amended charge to the accused and take his plea. Court – Charge is read and explained to the accused person in Yoruba by the Registrar, a sworn interpreter and he pleaded as follows: 1st count: Not guilty 2nd count: Not guilty 3rd count: Not guilty. Court – Mr. Popoola, do you want all the prosecution witnesses to be re-called for the purposes of being cross examined.
Mr. Popoola:- I am not asking the court to recall any of the prosecution witnesses. There is no need. Mrs. Alao:- I have two additional witnesses to call. I have a right to call additional witnesses, having amended the charge. I rely on Section 165 of the Criminal Procedure Law. Mr. Popoola:- I agree she has a right to recall witnesses to be examined on the new count. Court Case is adjourned to 30/7/85 for the prosecution to re-call or re-summon its witnesses. On the next day of hearing Mrs. Alan did not produce any of the prosecution witnesses she had earlier said she would recall. The learned trial judge considered all the evidence adduced before him and, in a considered judgment, convicted the appellant on four counts of the amended charge.
The appellant was discharged and acquitted in respect of the fifth count because the prosecution had not led any evidence to prove offence in the court. On appeal to the Court of Appeal, only one ground was filed and the issue formulated against it is simple and it reads: “Was the learned trial judge right in convicting the appellant and sentencing him to jail when his plea was not taken on every count of the amended charge.” In his argument on the single issue, reproduced above, the learned counsel for the appellant before the Court of Appeal submitted that an amended charged is a fresh charge and it is imperative on the accused to plead to every count in the charge. He referred to section 164(1) of Criminal Procedure Law of Lagos State and stated that it was mandatory for the court to call upon the accused to plead to the amended charge.
The learned counsel cited the case of Eronini v. The Queen (1953) 14 WACA 366; Adisa v. Attorney-General Western Nigeria (1965) 1 All NLR 412; Queen v. Ogunremi (1961) 1 All NLR 467 and Fox v. Commissioner of Police (1947) 12 WACA 215. The Court of Appeal, as per the lead judgment of Awogu, JCA., with which Kalgo and Niki Tobi, JJCA., concurred, held that complaint of the appellant was the failure to take his fresh plea when the charge was amended. The learned justice went on, in his judgment, and said: “Although a plea was taken in respect of the 4th count when the trial commenced, there appears to be no plea, on amendment, in respect of this count. Similarly, while there was a plea in respect of the 3rd count, on amendment, the count was not mentioned at pages 52 – 53, although there was conviction for it. The 5th count, introduced on amendment led to no conviction and so is immaterial for the purpose on had (sic). Assuming therefore that there was an irregularity in respect of counts 3 and 4, no such irregularity attached to the 1st and 2nd counts. I agree therefore that the appellant was irregularly convicted in respect of counts 3 and 4. He is hereby discharged and acquitted in both counts. His conviction and sentence in respect of counts 1 and 2 are however affirmed. Accordingly, he is to serve a term of 30 years imprisonment with effect from 3rd December 1985 in respect of each counts but the sentence and (sic) to run concurrently.” It is against the above decision of the Court of Appeal that this appeal has been lodged and the only ground of appeal filed in support of the appeal, shorn of its particulars, reads:
“The learned Justices of the Court of Appeal erred in law in confirming the conviction and sentences of the appellant in spite of the fact that fresh plea of the appellant was not taken on the amended charge.” The issue for determination in this appeal therefore, is the procedure of taking a plea when a charge of more than one count is amended. The amendment may be through alteration by substitution of new counts for the original ones or addition of new counts to the charge. When such amendment takes place is it mandatory, considering the provisions of section 164(1) of the Criminal Procedure Law, to take a fresh plea to all the counts in the charge, including those which have not been amended? On the other hand, is it only those counts which have been amended or newly added to the charge that a fresh plea shall be taken thereto. Mr. Bashua, the learned counsel for the appellant, submitted that when a charge is amended, the amended charge becomes a fresh charge and by the provision of section 164(1) of the Criminal Procedure Law of Lagos State, it is imperative that the accused person must plead to the new charge as amended. Failure to do so, according to the learned counsel, renders the whole proceedings null and void. He argued that the Court of Appeal was in error to say that if the irregularity affected only part of the charge and not the whole of it, the proceedings will ony be null and void to the “tent of the part of the charge affected by the irregularity.”
Mr. Bashua argued further that whether a charge contains one or several counts it is, by the provision of section 164(1) of Criminal Procedure Law, a charge. He referred to the case of R v.Ijoma(1947)12WACA,220 where the West African Court of Appeal held as follows: “We have no doubt, however, that where the word “charge” is used in Section 162 and 163 of the present ordinance is refers to the document the accused is charge and includes, therefore, a document which may contain more than one statement of an offence. ” On the above authority counsel argued that a plea to a part of a charge is definitely not a plea to the whole charge. With respect to the submission of the learned counsel for the appellant the issue decided in the case of R. v. Ijoma (supra) can be distinguished from the facts of this case.
The issue in R v. ljoma dealt with the power of a trial judge to alter or add to any charge at any time before judgment, as is provided for under section 163 of Criminal Procedure Law. There is no dispute over the meaning of a charge in a criminal trial. It is also trite that, where there is more than one statement of offence in a charge each such statements is in effect a separate count. See R. v. NjiAchie 12 WACA, 209. The relevant issue for determination, in this appeal, is whether it is mandatory, after the amendment of a charge containing more than one count, a fresh plea must be taken to all the counts, in the charge, or only to those counts which have been amended. In order to prove that
Other Citation: (1993) LCN/2508(SC)
