Rex V. Richard Pepple & Anor (1949)
LawGlobal Hub Judgment Report – West African Court of Appeal
Criminal Law and Procedure—Original plea of not guilty withdrawn byaccused’s Counsel and plea of guilty substituted by Counsel—Nigeria CriminalProcedure Ordinance, sections 215 and 218—Necessity for accused to plead to the charge in person—Nullity of proceedings.
Sections 215 and 21$ of the Nigeria Criminal Procedure Ordinance involve a pleading to the charge by the accused in person and it is not open to the trial Court to accept any plea from his Counsel. It follows that any alteration of a plea of not guilty, once entered, must be made by the accused himself. This rule not having been observed the trial was a nullity as regards the first appellant.
Cases referred to:
- R. v. Ben Nze, 7 W.A.C.A. 24.
- R. v. Hussey, 18 Cr. App. R. 121.
Appeal from the Supreme Court of Nigeria.
David for first Appellant.
Manyo-Plange, Senior Crown Counsel, for Crown.
The following judgment was delivered:
Wilson, C.J. The first appellant was charged with and convicted of offences under sections 10 (2) (c) and 8 (2) of the West African Currency Notes Ordinance (Cap. 122 of the Laws of Nigeria). A third charge under section 8 (2) was withdrawn by the Crown during the course of the proceedings.
When originally charged on the 4th January the first appellant pleaded not guilty to all three counts, including both the counts on which he was later convicted. The trial was, for certain reasons, adjourned to the 13th January. When it was resumed the appellant’s Counsel made a submission to the Court which is recorded as follows:—
” He (Counsel) says he has considered the whole case and No. 1 now pleads guilty to the first count and withdraws his plea of not guilty; No. 1 also pleads guilty to the third count and withdraws his plea of not guilty. No. 1 maintains his plea of not guilty to the second count.” The Judge recorded further that No. 1 did not say anything himself : that he spoke through his Counsel and did not protest at the change of plea.
The Crown then withdrew the charge on the second count and the Court without calling upon the accused personally to plead again or to say whether he acquiesced in what his Counsel had said, proceeded, without actually entering a formal conviction, to assess the sentence.
Under the heading ” No. 1 Allocutus ” there is a note ” No. 1 addressed personally, says nothing ” and there follows a note of his Counsel’s address in mitigation of sentence, to which the Crown replied.. The learned Judge then carefully discussed the circumstances affecting sentence and sentenced the first appellant to three (3) years I.H.L. on the first count and to a concurrent term of six (6) months I.H.L. on the third count.
After a short adjournment the Court resumed and the first appellant’s Counsel then informed the learned Judge that his client was aggrieved and proposed to appeal against his conviction on the ground that he had personally never altered
his original plea of not guilty to all the charges. The Court made a note of the circumstances on the record, including the statement that ” No. 1 understands English fully “.
It is now submitted that the proceedings on the 13th January were a nullity and that the conviction and sentence are bad in law and should be set aside. Counsel for the first appellant cited the case of R. v. Ben Nze (1), but relied mainly on the argument that the terms of sections 215 and 218 of the Criminal Procedure Ordinance are mandatory and have not been complied with.
Section 215 (in so far as it is relevant) says: ” The person to be tried . . . shall be placed before the Court . . . and the charge or information shall be read over and explained to him . . . and such person shall be called upon to plead instantly thereto . . . “
Section 218 says: ” If the accused pleads guilty to any offence with which he is charged the Court shall record his plea of guilty as nearly as possible in the words used by him and if satisfied that he intended to admit the truth of all the essentials of the offence of which he has pleaded guilty the Court shall convict him of that offence and pass sentence upon or make an Order against him unless there shall appear sufficient cause to the contrary “.
We are clearly of opinion that the terms of the sections quoted above involve a pleading to the charge by the accused in person and that it is not open to the Court to accept a plea, one way or the other, from his Counsel. It follows that any alteration of a plea of not guilty, once entered, must be made by the accused himself. It would be unsafe to sanction any departure from this course in a matter so fundamental to the proper trial of an accused person. The correct course in such circumstances is to charge the accused again and record his plea: See the report in R. v. Hussey (2) a case in which a somewhat similar situation arose.
We have no option, therefore, but to declare the proceedings in the present case on the 13th January, to be a nullity and to set aside the conviction and sentence and order the first appellant to be tried according to law.
With regard to the second appellant, the grounds of appeal filed by him contain nothing of substance, but this Court has taken a point of law which emerges from the evidence on the question of possession.
Both appellants were charged with being in possession of a negative plate bearing the resemblance of a West. African Currency Note and also of an unfinished currency note.
The evidence shows that the first appellant was in physical possession of both articles and that all the second appellant, who had knowledge of the first appellant’s possession, did was to try to get the first appellant a purchaser for the negative plate.
There is no evidence that the second appellant and the first appellant jointly owned either the negative plate or the unfinished note, or that the first appellant had possession of them on behalf of both; in other words, there is no evidence of constructive possession by the second appellant.
On this point being put to him by the Court the learned Senior Crown Counsel intimated that he could not support the conviction of the second appellant on the charges laid and we are of the opinion that his conviction on those charges cannot stand.
In the circumstances, the conviction and sentence of the second appellant are set aside and it is ordered that a verdict and judgment of acquittal be entered. Appeal of 1st appellant allowed and trial ordered.
Appeal of 2nd appellant allowed.
