EDMUND UMEZ ERONINI
V.
THE QUEEN
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
6TH DAY OF NOVEMBER, 1953
2PLR/1953/25 (WACA)
OTHER CITATION(S)
2PLR/1953/25 (WACA)
(1953) XIV WACA PP. 366-369
LEX (1953) – XIV WACA 366-369
BEFORE THEIR LORDSHIPS:
VERITY, C.J., NIGERIA
COUSSEY, J.A.
JIBOWU, J.
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BEFORE THEIR LORDSHIPS:
EDMUND UMEZ ERONINI – Appellant
AND
THE QUEEN – Respondent
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ORIGINATING COURT(S)
Appeal by convicted person: No. 162/1953.
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REPRESENTATION
J. I. C. Taylor, with M. D. O. Ibekwe — for the Appellant
C. A. Burton — for the Crown
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Charge amended but fresh plea not taken Charge amended again and fresh plea taken – Effect of first omission – Criminal Procedure Ordinance (Cap. 43), section 164(1) and (4).
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CASE SUMMARY
Section 164(1) prescribes that “if a new charge is framed or alteration is made to a charge under section 162 or section 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 164(4) provides that “when a charge is so amended … the charge shall be treated for the purpose of all proceedings in connection therewith as having been filed in the amended form”.
The appellant was charged with an offence and pleaded not guilty; before evidence was called the charge was amended but no fresh plea was taken; after some evidence (which included documents put in) the charge was amended again but this time his plea was taken; and he was eventually convicted. He appealed, arguing that owing to non-compliance with section 164(1) in respect of the first amendment of the charge, the proceedings between that and the second amendment were void and consequently the evidence received in between was not lawfully admitted, with the result that the remaining evidence was insufficient to support the conviction, which should therefore be quashed and a verdict of acquittal entered.
For the Crown it was argued that if part of the proceedings was void the whole trial was a nullity and a new trial should be ordered. It was also suggested that the fresh plea at the second amendment of the charge cured the defect of no plea being taken at the time of the first amendment.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the appeal and quashing the conviction) that:
(1) The proceedings between the first amendment of the charge when no plea was taken and the second amendment of the charge were null and void; the subsequent plea could not render them valid; it is only the charge when amended that is to be treated as having been filed in the amended form.
(2) The proceedings after the second amendment of the charge, to which a plea was made, constituted a valid trial, which was not affected by the nullity of the earlier proceedings.
(3) The evidence received between the first amendment of the charge and the second, at a stage when the proceedings were a nullity, had to be excluded; that evidence was relied upon in the judgment appealed from, and it was not possible to say that if the trial Judge had not taken it into consideration he would have come to the same conclusion; therefore the conviction could not be sustained.
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MAIN JUDGMENT
The following Judgment was delivered:
VERITY, C.J., NIGERIA.
In this case the appellant was convicted on the second of four counts in an information charging him with offences contrary to sections 438, 390, 435 and 436 respectively of the Criminal Code. The second count as originally framed charged the appellant with stealing £253 14s. 0d. The other counts related to the same incident or series of incidents and alleged the sum involved to be £253 13s. 0d.
The appellant was arraigned on the 27th July, 1953, and pleaded not guilty to all counts. The case was then fixed for hearing on the following day and on 28th July before evidence was taken counsel for the Crown applied to amend the second count by substituting 13/- for 14/- therein. The application was granted and the amended charge was read but, as appears from the original record which we have examined at the request of counsel who appeared for the Crown at the hearing of the appeal, no fresh plea was taken.
The trial proceeded, however, and after two witnesses had been heard and a number of documents had been tendered and admitted in evidence the case was further adjourned.
Upon its resumption on the 29th July, counsel for the Crown asked for a further amendment of the second count by substituting the words “between the months of March and April, 1951” for the words “during the month of April, 1951”. This application also was granted, the amended charge read and a fresh plea of not guilty thereto entered. The trial then proceeded and at the conclusion thereof the appellant was convicted on count 2, and acquitted on the remaining counts. Against this conviction he has appealed and one of the grounds of appeal is that the trial was a nullity in that in respect of the first amendment to count 2 the provisions of section 164(1) of the Criminal Procedure Ordinance (Cap. 43) were not complied with.
We directed that this ground be first argued, for should it be upheld the conviction would be quashed and no other ground of appeal would arise.
The section referred to prescribes that:-
“… if a new charge is framed or alteration is made to a charge under section 162 or section 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.”
It is submitted on behalf of the appellant that the amendment of count 2 on the 28th July was an alteration of the charge under section 163 and that the Court should therefore have called upon the appellant to plead thereto and to state whether he was ready to be tried on such altered charge.
We do not think that this can be gainsaid and indeed counsel for the Crown does not contest it. The failure so to call upon the appellant was obviously a slip on the part of the learned Judge who, as is shown by the proceedings on the following day in relation to the second amendment to this count, was well aware of the obligation imposed upon the Court by section 164(1).
The real issue to be determined is what is the effect of this non-compliance with the section.
It is submitted on behalf of the appellant that the proceedings between the time of the non-compliance and the fresh plea after the second amendment are a nullity and that although the proceedings after the fresh plea are valid this does not make good that which was void and there is not sufficient evidence validly received to support the conviction in as much as none of the exhibits which were vital to the prosecution were at any time lawfully admitted in evidence. Counsel submitted therefore that the conviction should be quashed and a verdict of acquittal be entered.
Counsel for the Crown on the other hand argued that if any part of the proceedings is void the whole trial must be considered a nullity and that a new trial should be ordered, but that this Court should consider: also whether the fresh plea to the count as further amended on the 29th July did not cure the defect arising from non-compliance with section 164(1) in relation to the earlier amendment.
It is to be observed that sub-section (4) of this section provides that:-
“When a charge is so amended … the charge shall be treated for the purpose of all proceedings in. connection therewith as having been filed in the amended form.”
It is clear that on the 28th July the charge was properly amended and that from that point onwards the charge was to be treated as having been filed in the amended form. It had not, however, been pleaded to. Similarly upon the second amendment the charge was to be treated as though it has been filed in the amended form and in this case the whole charge as twice amended was read to the appellant and he pleaded thereto. It is an attractive argument that in such case the charge must be deemed always to have been as then amended and that the appellant having eventually pleaded thereto the trial was valid, the appellant having the right, if he so desired, to recall any witness who had been heard before the amendment for cross-examination under section 165. Much as we are attracted by this argument we consider that it would be fallacious inasmuch as it ignores the fact that at a certain stage of the proceedings evidence was heard in relation to a charge to which the accused person had not been called upon to plead. If the charge as first amended is treated as having been filed in the amended form there was no plea thereto. Had the proceedings continued without further amendment it is clear that the proceedings would have been a nullity and that no belated plea could have rendered them valid. The proper course upon discovery of the fact that there was no plea, would have been to commence the trial de novo. It would certainly not be open to the Court to cure the defect by making some immaterial alteration to the charge, call upon the accused to plead thereto and then treat the plea as having been made in the first place. It is the charge and not the plea that is to be so treated by virtue of section 164(4). The taking of a fresh plea is in the interest of the accused person and not for the purpose of rendering valid proceedings which would otherwise have been null and void. In point of fact the second amendment in this case was immaterial (as indeed was the first) for proof neither of the precise date nor of the precise sum alleged to have been stolen would have been essential to the conviction and we are at a loss to understand why the amendments were sought.
We are impelled to hold, therefore, that the proceedings immediately following upon the first amendment were null and void and that they cannot be rendered otherwise by the subsequent amendment and fresh plea. The correct procedure would have been to commence the proceedings de novo. This not having been done we are of the opinion that the proceedings on the 28th July were a nullity and have not been and cannot be rendered valid by any subsequent proceedings. There remains the question as to ‘whether in such case the whole of the subsequent proceedings are a nullity and should be so declared, an order being made for a new trial or whether the proceedings subsequent to the second amendment and fresh plea are to be treated as a valid trial upon which if the evidence heard on 28th July be excluded (as it must be) there was insufficient evidence to warrant the conviction which should therefore be quashed.
Counsel for the Crown contends that if any part of the proceedings are a nullity the whole of the proceedings are void, while the contention on behalf of the appellant is that upon the second amendment of the charge which is then to be treated as having been filed in the amended form and upon the appellant pleading thereto subsequent proceedings are valid and are unaffected by those preceding the amendment and plea which are a nullity and to be treated therefore as if they had never taken place.
No authority has been cited for either of these contentions nor have we been able to refer to any, perhaps for the reason that such misfortunes as overtook these proceedings are happily infrequent. The question must be dealt with therefore as at large and on the whole we have reached the conclusion reluctantly and with regret that the contention of the appellant must be upheld as the more logical result of application to the facts of this case of the provisions of the Criminal Procedure Ordinance.
If as is conceded the proceedings on the 28th July subsequent to the alteration of the charge are null and void then the position is that on the 27th July the appellant pleaded to the charge as filed; an amendment was granted on 28th July but no plea taken thereto and no further valid step taken; on the 29th a further amendment was granted, a fresh plea was taken to the charge as twice amended and the trial thereupon proceeded. The Crown should then have opened the case for the prosecution and adduced evidence in support of the charge as required by section 240 of the Ordinance. This in fact was done but unfortunately the evidence so called did not include that of the witnesses whose testimony had been adduced in the course of the invalid proceedings on the previous day. Had the Crown re-opened the case for the prosecution on the 29th and adduced the whole of the evidence we do not think that the proceedings subsequent to the fresh plea could have been open to attack on the ground that the previous day’s proceedings were a nullity. The failure of the Crown to commence the examination of the witnesses de novo cannot we think affect the matter by rendering that null which, had they called the witnesses, would have been valid.
We are therefore constrained to reach the conclusion that the proceedings on the 28th July and following days until the delivery of judgment on the 11th August constituted a valid trial and if in the course thereof the evidence adduced was insufficient to warrant conviction the appellant is entitled to an acquittal.
It is apparent from the judgment in this case that the learned Judge relied, as he was indeed impelled to rely, upon the documentary exhibits tendered in the course of the abortive proceedings on the 28th July, as he also relied on the evidence of the witness Okoro whose testimony was taken on that day. Whether or not it might be possible to deduce from the evidence taken on the 29th July and the following days facts which would have been sufficient to justify a conviction it is impossible to say(? and) that had the Judge not taken into consideration the exhibits and other evidence tendered on the 28th July he would have come to the same conclusion. We are of the opinion, therefore, that the conviction cannot be sustained but must be quashed. The sentence must be set aside and a verdict of acquittal be entered.
We have reached this conclusion with great reluctance for we fear that it may result in a miscarriage of justice, but nevertheless so long as the provisions of the Criminal Procedure Ordinance remain the Law effect must be given to them and non-compliance therewith must carry its inevitable consequences. The fact that this Ordinance is particularly rich in traps for the unwary cannot affect its force nor its consequences. Under more usual forms of enactment in such matters the present position could not have arisen. It is to be regretted that Crown counsel felt it desirable to apply for the entirely unnecessary amendment of the 28th July; it is regrettable that the learned Judge inadvertently failed then to call upon the appellant to plead to the altered charge, and it is equally regrettable that this omission not having been observed the proceedings were not thereupon commenced de novo. This Court has on a number of occasions in the last few years drawn attention to the defects of this Ordinance and the dangers arising therefrom. Until such time as it may be found possible to revise its provisions we can do no more than warn those who are obliged to comply therewith to approach their task with the utmost caution lest as in this case its peculiarities lead to miscarriage of the proceedings and perhaps of justice.
Appeal allowed: conviction quashed.