Nwafor Okegbu V. The State (1979)

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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.