Failure to explain amended charge to accused renders trial a nullity – SC
IN THE SUPREME COURT OF NIGERIA on Friday the 20th day of May 2016 Before their Lordships Walter Samuel Nkanu Onnoghen JSC; Clara Bata Ogunbiyi JSC; Kumai Bayang Akaahs JSC; Kudirat Motonmori Olatokunbo Kekere-Ekun JSC; Chima Centus Nweze Justice, Supreme Court (JSC) SC.240/2013 Between: Amos Bude – Appellant and The State – Respondent Judgment (Delivered […]
IN THE SUPREME COURT OF NIGERIA
on Friday the 20th day of May 2016
Before their Lordships Walter Samuel Nkanu Onnoghen JSC; Clara Bata Ogunbiyi JSC; Kumai Bayang Akaahs JSC; Kudirat Motonmori Olatokunbo Kekere-Ekun JSC; Chima Centus Nweze Justice, Supreme Court (JSC)
SC.240/2013
Between:
Amos Bude – Appellant
and
The State – Respondent
Judgment
(Delivered by Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC)
The appellant herein was initially charged along with four others before the High Court of Kaduna State sitting at Kaduna (the trial court) on a two-count charge of conspiracy to commit armed robbery, armed robbery and receiving stolen property under Sections 6 (b), 1
(2) (a) and 5 of the Robbery and Firearms (Special Provisions) Act Cap. R11, Laws of the Federation of Nigeria 2004.
The appellant was charged with the counts for conspiracy to commit armed robbery and armed robber only, to which he pleaded not guilty on 4/10/06. The prosecution opened its case on 23rd January 2007 and called four witnesses. Subsequently the prosecution filed a motion for leave to amend the charge. The application was granted on 6th March 2007. The amended charge dated 22nd February 2007 reads:
COUNT ONE
That you, Amos Bude (M), Moshood Sanusi (M), Charles Chidi Iwuchukwu with Divine Ebukam (deceased) and Dogara Peter (M) (at large) on or about the l2th day of December 2005 at Nassarawa Village, Kaduna, conspired to rob at gun point, the premises of Kaduna South Local Government Education Board, Kakuri, Kaduna, and that same act was done in pursuance of the “agreement” and that you thereby committed an offence under Section 6 (b) of the Robbery and Firearms (Special Provisions) Act Cap. R11 Laws of the Federation of Nigeria, 2004.
COUNT TWO
That you, Amos Bude (M), Divine Ebukam (M) (deceased) and Prince Obi alias Thankgod on or about the l2th day of December 2005 at Nassarawa Village, Kaduna, while armed with guns and other dangerous weapons, forcefully entered the office of the Head of Department Finance, and robbed the occupants of the said office of the sum of Twelve Million Naira, thereby committing an offence punishable under section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. R11 Laws of the Federation of Nigeria, 2004.
COUNT THREE
That you Moshood Sanusi (M), Charles Chidi Iwuchukwu (M) on or about the l2th day of December 2005 at Unguwan Muazu Kaduna, dishonestly received some money from Divine Ebukam (M) (Deceased) and Amos Bude (M) knowing or having reason to believe the same robbed and thereby committed an offence punishable under Section 5 of the Robbery and Firearms (Special Provisions) Act Cap. R11 Laws of the Federation of Nigeria, 2004.
After the amendment of the charge the trial continued without the appellant’s plea being taken afresh. At the conclusion of the trial, the appellant was found guilty as charged and sentenced to death by hanging.
The appellant was dissatisfied with the decision of the trial court and appealed to the Court of Appeal, Kaduna Division (the court below) by a notice of appeal filed on 8/8/2011. With the leave of that court he filed an amended notice of appeal on 21/11/2011 containing two grounds of appeal. Ground 1 of the amended notice of appeal which is relevant to this appeal, reads as follows:
Ground One:
The entire proceedings of the court below is a nullity by reason of the fact that after the learned trial judge granted leave to the prosecution to amend the charge, the accused was not called upon to take his plea upon the amended charge.
Particulars
I. The appellant (as 2nd accused) and five others were charged to court on a three counts charge dated August 2, 2006.
II. At the proceedings of November 4, 2010, the appellant pleaded guilty to the charge dated August 2, 2006.
III. Trial commenced in the court below on January 23, 2007.
IV. On March 6, 2007 the prosecution sought and obtained leave of the court to amend the charge dated August 2, 2006 pursuant to a motion on notice dated February 28, 2007.
v. By virtue of the mandatory provision of Section 208 (2) of the Criminal Procedure Code, Cap. C42 Laws of the Federation of Nigeria 2004, once a charge is amended, the amended charge shall be read to the accused and his plea thereto shall be taken.
VI. After granting leave to the prosecution to amend the charge, trial continued without compliance with the provision of Section 208 (‘2) of the Criminal Procedure Code, Cap. C42 Laws of the Federation of Nigeria 2004.
VII. It is well settled law that failure to call on the accused person to plead to the new charge renders the whole proceedings a nullity.
The appellant formulated two issues for determination before the court below. The first issue, distilled from Ground 1 of the amended “notice of appeal, challenged the validity of the proceedings before the trial court having regard to the failure of the learned trial Judge to take a fresh plea after the amendment of the charge. The second issue, formulated from Ground 2, questioned the evaluation of evidence. In its judgment delivered on 28/3/2013, the court resolved the first issue in the appellant’s favour and held that the entire proceedings amounted to a nullity for the court’s failure to take the appellant’s plea on the amended charge. On that basis it declined to consider issue 2 and ordered that the case be remitted to the High Court of Kaduna State for retrial before another Judge of that court. The appellant is dissatisfied with the order for a retrial and has further appealed to this court.
The parties duly filed and exchanged their respective briefs of argument in compliance with the rules of this court. At the hearing of the appeal on 3rd March, 2016, Kehinde Ogunwumiju Esq. adopted and relied on the appellant’s brief deemed filed on 24/6/2014 in urging the court to allow, the appeal, set aside the judgment of the court below ordering a trial de novo and acquit and discharge the appellant.
M.M. Nuruddeen ESQ., for the Respondent, adopted and relied on the respondent’s brief filed on 13/11/2014 and urged the court to dismiss…
the appeal.
Learned counsel for the appellant identified a sole issue for determination as follows:
Whether or not the court below ought to have ordered a retrial of the appellant having regard to the position -of the law, facts and circumstances of the case.
The respondent also formulated a single issue for determination thus:
Whether the learned Justices of the Court of Appeal could properly discharge and acquit the appellant when they merely dealt with the legality of his arraignment and not the evidence adduced against him at the trial court.
I consider the issue formulated by the appellant to be more apt in articulating the issue in contention in this appeal and accordingly adopt it for the resolution of the appeal.
In arguing the appeal, learned -counsel for the appellant submitted that the decision whether or not to order a retrial lies within the discretionary powers of the court as provided in Section 19 (2) of the Court of Appeal Act and Sections 25 and 26 of the Supreme Court Act respectively.
On the other hand, it is the contention of learned counsel for the respondent that having regard to the fact that the lower court did not evaluate the evidence at all once it had declared the trial a nullity, ground 2 of the notice of appeal, which contends that the judgment of the lower court is unreasonable, unwarranted and cannot be supported having regard to the evidence, does not arise from the said judgment. He submitted that in the circumstances the respondent’s issue for determination is more apt. I have earlier determined that the appellant’s issue is more apposite for the determination of the appeal.
He submitted that the lower court was right in ordering a retrial before another Judge.
It must be noted at the outset that neither of the parties has challenged the order of the court below nullifying the entire proceedings at the trial court for failure to comply with Section 208 (2) of the Criminal Procedure Code, which provides, in relation to the amendment of a charge, that:
208 (2) Every such alteration or addition or new charge shall be read and explained to the accused and his plea thereto shall be taken.
This is not surprising, as it has been firmly established by a plethora of decisions of this court that failure to read and explain any alteration or addition to, a charge to an accused person and to take his plea thereto violates the principle of fair hearing and renders the trial a nullity. See: Yusuf Vs The State (2011) 18 NWLR (Pt.1279) 853 @ 871 D – H; Adisa Vs A.G. Western Nigeria (1965) 1 ALL NLR 412 @ 416; Joves Vs I.G.P (1960) 5 FSC 38 @ 43; Okosun Vs The State (1979) All NLR 26; Eronini Vs The Queen 14 WACA 366 @ 368.
The bone of contention in this appeal is the proper order to make in consequence of the lower court declaring the trial a nullity. The power of the Court of Appeal to order a retrial in certain circumstances is conferred by Section 19 (2) of the Court of Appeal Act Cap. C36 Laws of the Federation of Nigeria (LFN) 2004, which provides:
19, (2) Subject to the provisions of this Act, the Court of Appeal shall, if it allows an appeal against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered or order the appellant to be re-tried by a court of competent jurisdiction.
The factors that guide the court in determining whether or not to order a retrial or a hearing de novo/ have been settled long ago in the locus classicus relied upon by both learned counsel in the case of: Abodundu Vs The Queen (1959) NSCC (Vol.i) 56 @ 60 lines 9 – 20. The court must be satisfied:
That there has been an error in law (including the observance of the law of evidence) or irregularity in procedure of such a character that on the one hand the trial was not rendered a nullity and on the other hand the Court of Appeal is unable to say that there has been no miscarriage of justice.
That, leaving aside the error or irregularity, the evidence taken as a whole discloses a substantial case against the appellant.
That there are no such special circumstances as would render it oppressive to put the appellant on trial a second time.
That the offence or offences for which the appellant was convicted, or the consequences to the appellant or any other person of the conviction or acquittal of the appellant are not merely trivial; and
That to refuse to order a retrial would occasion a greater miscarriage of justice than to grant it.
See also: Adeoye Vs The State (1999) 6 NWLR (Pt.60S) 74 @ 88. On the first issue, I had earlier referred to the plethora of decisions by the this court to the effect that the omission of the trial court to read and explain the amended charge to the appellant and to take his plea, amounted to a breach of his right to fair hearing and rendered the trial a nullity. In the case of Erekanure Vs The State (1993) 5 NWLR (Pt.294) 385 @ 39S G – H, this court per Olatawura, JSC held that in a situation where the trial is declared a nullity the effect is that there was never a trial, as the purported trial has no legal force or effect.
In order to determine whether the evidence, taken as a whole discloses a substantial case against the appellant, it is necessary to consider the facts briefly. The prosecution called 6 witnesses in support of its case and tendered 16 exhibits, which included one AK47 rifle, 28 magazines containing rounds of live ammunition, 3 locally made pistols, cartridges and charms. The facts relied upon by the prosecution are that on 12/12/2005 while teachers’ salaries were being paid to staff of Kaduna South Local Government Education Department, the appellant and two others forced their way into the office armed with guns and demanded the money with a threat that one of them (staff members) must die. They carted away N12 million in sacks and fired a further six gunshots as they escaped in a Mercedes Benz 190 car. The empty shells were recovered from the scene by the Police. PW1 was able to identify the appellant and described the clothes he wore. PW2 stated that the appellant carried a silver coloured pistol. PW1 and PW2 also stated that they were able to identify the appellant because the robbers were not masked. PW3 and PW4 who were also in the office waiting to collect salaries for their staff also recognised the appellant as being one of the robbers. PW5 (one of the Investigating Police Officers) testified that the appellant was arrested based on information received by the Police about those behind the robbery and that he made a confessional statement, admitting his part in the crime and in a series of other robberies. The statement was admitted in evidence as Exhibit A after a trial within a trial was conducted. PW 6, another I.P.O. testified that the appellant was arrested in respect of a different case and that it was during the investigation into that case that he confessed to taking part in the robbery at Kaduna South Local Government on 12/12/2005.
In urging the court to set aside the order for retrial, learned counsel for the appellant submitted that none of the prosecution witnesses identified the appellant as being one of the robbers. This is incorrect. It is important to note that-when the trial commenced, the appellant was the 2nd out of five accused persons. However, in the course of trial, after the conclusion of the evidence of PW4, the prosecution amended the charge on account of the death of the 1st accused, Devine Ebukam and the fact that the 5th accused, Dogara Peter, was at large. The appellant thereafter became the 1st accused. Thus, reference to the 2nd accused in the testimonies of PWs 1, 2, 3 and 4 as being one of the robbers is reference to the present appellant and his position in the case before the amendment of the charge.
The appellant denied committing the offence and claimed that he was arrested for possession of Indian hemp.
It is contended on behalf of the appellant that not only is the evidence led by the prosecution not substantial enough to warrant an order of retrial, but that a retrial would unfairly afford the prosecution an opportunity to repair alleged defects in its case, which would result in a miscarriage of justice for the appellant. Having closely examined the evidence, I am unable to agree with learned counsel that a retrial would enable the prosecution repair perceived defects in its case. I am satisfied that the facts disclose a substantive case of armed robbery against the appellant.
I shall consider the remaining three factors together. I have considered the various reasons advanced by learned counsel for the appellant on why it would be oppressive to order a retrial. It is pertinent to note that each case will be determined in light of its own peculiar facts. See: Erekanure Vs The State (1993) 5. NWLR (Pt.294) 385 @ 394 – 395 H – A. One of the main arguments against the order for retrial is the fact that the appellant has already spent nine years in prison custody, that it might be difficult to secure the attendance of witnesses, who may no longer have an accurate recall of the facts of the case and that his personal property seized by the Police must have deteriorated beyond repair by now. I have also considered the authorities cited by learned counsel. It is true that in the case of Mohammed Vs The State (supra), which was a case of culpable homicide punishable with death, the appellant had spent 14 years in custody and this court refused to order a retrial. However, in reaching that decision this court considered the evidence that had been led in the nullified trial and was not convinced that a prima facie case had been made out against the appellant having regard to evidence of extreme provocation. The court also took into account the fact that the appellant was an elderly man of about 80 years of age and the unlikely prospect of his being able to withstand the rigours of a retrial. In Okafor’s case (supra), having found that the trial was a nullity because the information was preferred without jurisdiction, the court stopped at quashing the conviction and setting aside the sentence. The court left it to the prosecution to determine what, if any, further step to take. In Erekanure’s case (supra) notwithstanding the fact that the appellant had spent up to twelve years in custody, the court considered the gravity of the offence and was of the view that an order of retrial would meet the justice of the case. It was so ordered with a further order that the trial should commence not later than three months from the date of the judgment. In Adeoye’s case (supra), the appellant was charged with murder. This court held that his trial was a nullity having regard to the fact that he was absent from court when some of the prosecution witnesses testified. In determining whether or not to order a retrial, the court considered not only the length of time spent in custody by the appellant, but also the fact that it was given in evidence by the prosecution that all the tenants living in the appellant/s premises had moved away to unknown places and it would be difficult to locate them to give evidence. Thus in Adeoye’s case, as in the other cases cited by the appellant, the court took all the surrounding circumstances into account in reaching its decision.
In the instant case, any perceived difficulty in securing the attendance of the prosecution witnesses is speculative. As for the appellant’s aunt, she was already deceased as of 29/4/2010 when he testified (see page 86 of the record).
On the gravity of the offence, learned counsel has argued that despite the fact that the appellant was charged with armed robbery, no life was lost. I am of the considered view that learned counsel for the appellant missed the point. The offences of conspiracy to commit armed robbery and armed robbery are very grave offences indeed, which attract the death penalty – the ultimate punishment any court can impose. The punishment is illustrative of the seriousness with which the offence is regarded in society. Not only does the accused person forfeit his liberty, he forfeits his right to his very existence. The prevalence of armed robbery in the society is also a relevant consideration. See: Adeoye Vs The State (supra) at page 90 where Ogundare, JSC referred to guidelines laid down by Lord Diplock in: Reid Vs The Queen (1979) 2 WLR 221 at 226. The fact that no life was lost cannot diminish the grievous nature of the offence or the traumatic effect of obtaining property from a victim under the barrel of a gun. For this reason, the length of time spent in prison custody may not necessarily deter the court from ordering a retrial or proper trial. See: Yahaya Vs The State (2002) 9 NSCQR 36 @ 48 0 – E; Erekanure Vs The State (supra) at 398 C. In Kajubo Vs The State (1988) NSCC 475 @ 485 lines 29 – 40, the concurring opinion of Oputa, JSC is most instructive. His Lordship stated thus:
“I am sorry for the length of time the appellant had been in prison custody. However, a court of law should not only temper justice with mercy, but what is sometimes vitally important it should also temper mercy with justice. And this is a case calling for mercy to be tempered with justice. The natural leaning of our minds may be in favour of and in sympathy with the appellant and we may in like manner be thus tempted to sympathise with any prisoner in the position of the present appellant. But one has to sound a note of serious warning against giving way too easily to mere formal objections on behalf of accused persons. Such extreme facility may constitute a great blemish on the judicial process, owing to which more offenders may escape than by the manifestation of their innocence. The danger “here is that by such “leniency” we (the Courts) may imperceptibly loosen the bands of society, which is kept together by the hope of reward, and the fear of punishment.”
Having regard to the ‘facts and circumstances of this case, I am of the considered view that it would not be in the interest of justice to acquit and discharge the appellant without a proper trial.
In Erekanure’s case (supra), it was held that having regard to the length of time already spent in prison custody by the appellant, the justice of the case would best be met by an order for a speedy trial. I am guided by the wisdom of the court in the instant case. With the coming into effect of the Administration of Criminal Justice Act, 2015, the appellant’s trial is likely to be concluded expeditiously without the delays previously associated with criminal trials. See, for example, Sections 396 and 306 of the Act. No special circumstances have been shown that would render it oppressive for the appellant to face a proper trial.
The sole issue for determination in this appeal is accordingly resolved against the appellant. The appeal is hereby dismissed. The order of the lower court ordering a retrial (or trial de novo) before another Judge of the High Court of Kaduna State is affirmed.
Kehinde Ogunwumiju Esq. for the appellant with Ademola Abimbola Esq., Oluwaseyi Kolawole (Miss) and Lukman Saadu Esq.
M.M. Nurudeen Esq. for the respondent.
Law Quote from Readers
“Law is experience developed by reason and applied continually to further experience…” – Roscoe Pound!!
(Adam Uzeeru Bulkachuwa) 08135235469