Ogunremi Michael Vs The Queen (1961)
LawGlobal-Hub Lead Judgment Report
BRETT, AG. C.J.F
The appellant was charged in the High Court of the Western Region on an information alleging Rape contrary to section 229 of the Criminal Code. After all the evidence had been heard defending counsel in his closing address pointed out that s. 229 of the Criminal Code did not deal with Rape, but with a completely different offence. Prosecuting counsel invited the Judge to amend the information by substituting a reference to section 358 of the Criminal Code and this was done without objection from the defence. The Judge re-corded that he thought it unnecessary to take a fresh plea, because the amendment did not bring in a fresh charge, and proceeded to deliver judgment convicting the appellant. The first ground of appeal is that the Judge erred in law in not taking a fresh plea and asking the appellant if he was ready to be tried on the amended charge.
It is not suggested that the appellant was in any way prejudiced by this failure to comply with section 164 of the Criminal Procedure Ordinance, but the decisions in Fox v. Police 12 W.A.C.A. 215, and R. v. Eronini 14 W.A.C.A. 366, leave us no choice but to hold that the omission rendered the conviction and sentence a nullity, and they must be set aside. Mr. Eboh invited us, if we felt obliged to allow the appeal on this ground, to make an order for retrial, but having listened to arguments on both sides as to the merits of the case we do not propose to do so. The appeal is allowed, the conviction is quashed, and a judgment and verdict of acquittal are entered.
Other Citation: (1961) LCN/0902(SC)
