Can a Defendant be Found Guilty of a Different Offence Than the One Originally Charged?

CASE TITLE: OCHEKPE v. FRN & ORS (2025) LPELR-81654(CA)
JUDGMENT DATE: 18TH JUNE, 2025
JUSTICES: IBRAHIM ALI ANDENYANGTSO, J.C.A.
PETER OYINKENIMIEMI AFFEN, J.C.A.
ABIODUN AZEEM AKINYEMI, J.C.A.
DIVISION: JOS

PRACTICE AREA: CRIMINAL LAW

FACTS:

This appeal borders on the effect of conviction based on an error in a charge.

This appeal is against the judgment of the Federal High Court Jos Division, delivered on the 22nd of February 2022 by M.H. KURYAJ.

In the original charge filed on the 15th of December 2017, the Appellant and the 2nd and 3rd Respondents were charged on two counts of conspiracy to accept unlawful cash payment contrary to Section 1(a) and Section 16(1)(d) of the Money Laundering (Prohibition) Act 2012 (as amended) and accepting unlawful cash payment contrary to Section 1(a) and Section 16(1)(d) of the Money Laundering (Prohibition) Act 2012 (as amended).

On the 22nd of January 2018, the appellant pleaded not guilty to the charges. The case was then adjourned for trial. On the 13th of February 2018, when the case came up for hearing, the prosecution introduced an amended charge filed on the 12th of February 2018. The Amended Charge which contained three counts the appellant was charged for conspiracy to accept unlawful cash payment contrary to Section 1(a), Section 16(1), (d) of the Money Laundering (Prohibition) Act 2012 (as Amended) , accepting unlawful cash payment contrary Section 1(a), Section 16(1), (d) of the Money Laundering (Prohibition) Act 2012 (as amended)and retaining proceeds of crime contrary to Section 1(a), Section 16(1), (d) of the Money Laundering (Prohibition) Act 2012 (as Amended). The Appellant again pleaded not guilty to the amended charge. The trial commenced with the prosecution and the defence calling witnesses.

After the trial and conclusion of final addresses, the learned trial Judge delivered his judgment convicting the Appellant (anyears’d the 2nd and 3rd Respondents) and sentencing her to three years imprisonment with an option of fine of One Million Naira on each of two out of three counts of money laundering. The Amended Charge referred to by the learned trial Judge in convicting the Appellant was different from the Amended Charge filed by the Prosecution to which the Appellant entered her plea. Though its content bore some semblance to the discarded original charge, it was never filed in Court and was nowhere to be found in the record of proceedings apart from in the judgment.

Dissatisfied, the Appellant has instituted this appeal.

ISSUES FOR DETERMINATION:

The Court determined the appeal on these issues:

1. Whether the Appellant can be convicted on a different charge and law other than that which the Appellant pleaded to and was tried upon.

2. Whether the Prosecution discharged the burden of proof required by law for conspiracy and also in showing that the transaction did not go through a financial institution.

3. Whether the learned trial Judge can rely on and safely convict the Appellant on the evidence of PW1 (Annet Olije Gyen), who is both a tainted witness and an accomplice.

4. Whether the Appellant can be convicted on mere speculation without proving the predicate offence of money laundering and upon a proper review and evaluation of the evidence and the defences available to the appellant.

5. Whether the disparity in the evidence of the prosecution in relation to the amount of money collected by the Appellant vis-a-vis the amount contained in the charge ought not to be resolved in favour of the appellant.

COUNSEL SUBMISSIONS:

Learned Counsel to the Appellant has submitted in his brief of argument that the charge that the Appellant pleaded tocharge on was materially different from the charge which the learned trial Judge based his judgment. He submitted that the Money Laundering (Prohibition) Act of 2013 which was quoted in the Amended Charge relied upon by the learned trial Judge did not exist. Consequently, the appellant was tried and convicted under a non-existent law. Also, the appellant was never charged with, neither did she enter a plea to any charge accusing her of collecting money or having anything whatsoever to do with Mrs. Deziani Allison Madueke, yet the learned trial judge relied on a charge accusing her of conspiring to collect money from Mrs. Deziani Allison Madueke and retaining same. He submitted that the Amended charge quoted and relied upon in the judgment by the learned trial judge was non-existent and was nothing but an invention by the learned trial judge. He submitted that by trying and convicting her on a non-existent charge to which she never entered a plea, the fundamental right of the appellant to fair hearing had been breached by the learned trial Judge. He urged this Court to hold that the appellant had suffered gross miscarriage of justice and proceed to set aside her conviction and sentence. Learned Counsel relied on the following authorities to buttress his submissions: FRN v. ISEGHOHI (2019) 12 NWLR (Part 1685) 154; FELIX v. C.O.P. (2017) LPELR-43313 (CA); ADAMS v. STATE (2021) LPELR-55641 (CA); EFE V STATE (2013) LPELR-20308 (CA) and BALOGUN v. STATE (2018) LPELR-44215 (SC).

On his part, Learned Counsel to the 1st Respondent submitted that the grouse of the Appellant on this issue is merely technical; that the mistake of the learned trial Judge was a mere accidental slip which may be amended even without notice to the parties. He cited the case of GANIYU v. OTEGBOLA (2020) LPELR-49752 (CA) on how an accidental slip may be corrected and urged the Court to disregard the objection.

DECISION/HELD:

In conclusion, the appeal was allowed and the judgment of the trial Court was set aside.

RATIO:

CRIMINAL LAW AND PROCEDURE- CONVICPROCEDURE –TION: Whether an accused person can be convicted for an offence other than that charged

“A situation where a defendant entered a plea to a specific charge, but the judgment convicting him is predicated on a completely different charge is beyond a clerical error or an accidental slip. It strikes at the very root of the case. The charge that the judgment was based on is non-existent. It was not filed by the Prosecution. It was never served on the Appellant. She was not arraigned for it, and she did not enter a plea to it. It is radically different in content from the one to which she entered a plea. The three counts in the Amended Charge on which she was arraigned consisted of one count of conspiracy, one count of collecting cash and one count of retaining cash. On the contrary, the charge referred to in the judgment consists of three counts of conspiracy. In the charge to which she entered a plea, there was no mention of the name of Mrs Deziani Allison Madueke at all. But in the strange charge relied on by the learned trial Judge, the name of Mrs Deziani Allison Madueke featured prominently, and the Appellant is alleged to have transacted with her in the subject of the charge. The law is settled that a defendant cannot be tried or convicted on a charge different from the one that he was arraigned for and to which he entered a plea, except in a situation (which is not the case here) where he is found guilty of a lesser or substituted offence, and in accordance with the law. See OYEDIRAN v. THE REPUBLIC (1967) NMLR 122; OLADEJO v. STATE (1994) 6 NWLR (Part 348) 101; MOHAMMED v. STATE (2023) 3 NWLR (Part 1870) 157. It seems that the learned trial Judge went back to the original charge that was withdrawn and replaced with the authentic Amended Charge filed by the prosecution and added to it some of the contents of the authentic Amended Charge, to create this strange amalgam or contraption of a charge upon which he based his judgment. The law is settled that when an original charge is replaced with an amended one, the original charge ceases to exist, and the amended charge governs the proceedings with retrospective effect from the date of the filing of the original charge. See ATTAH v. STATE (1993) 7 NWLR (Part 305) 257; FRN V ADEWUNMI (2007) 10 NWLR (Part 1042) 399; IGBINEDION V F.R.N. (2014) LPELR-22766 (CA); PML (NIG) LTD v. F.R.N. (2018) 7 NWLR (Part 1619) 448; STATE v. ISIJOLA (2023) 77 NWLR (Part 1884) 417; SHEMA v. F.R.N. (2023) LPELR-61438 (CA); BANK PHB/KEYSTONE BANK v. F. R. N. (2024) LPELR-62615 (CA). How would a reasonable man, neutral, unbiased and impartial, observing the trial from arraignment to judgment, seeing that the Judge was referring in his judgment to a charge that is different from the one that the appellant was arraigned for, perceive the judgment, especially when the Appellant ended up being convicted? Would he think or believe that the appellant had been fairly or justly treated or that justice had been done? I think not. In the circumstances of this case, it is difficult to say that there has not been a miscarriage of justice or that the appellant has received a fair hearing, or even that the learned trial Judge himself had not been confused or misled in the conclusion that he reached, because of the blunder. It is irrelevant that the trial may have been well conducted. Once the blunder strikes at the root of the trial as already demonstrated, the entire proceedings, including the judgment, are tainted and cannot be allowed to stand. In UMARU v. STATE (2009) 8 NWLR (Part 1142) 134, the Supreme Court, relying on its earlier decision in EYOKOROMO V THE STATE (1979) 6-9, reiterated the circumstances under which a criminal trial may be declared a nullity: “It is pertinent, however, to point out that a trial may be a nullity on one of the following grounds, firstly, that the very foundation of the trial, that is the charge or information, may be null and void; secondly, the trial Court may have no jurisdiction to try the offence; and thirdly, the trial may be rendered a nullity because of a serious error or blunder committed by the judge in course of the trial.” Per AKINYEMI, J.C.A.

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