Will Addition of an Item to the List of Exhibits in a Charge Amount to an Amendment Which Would Warrant Taking a Fresh Plea by the Accused

CASE TITLE:                         MELI INEMIEBI v. THE STATE (2022) LPELR-57020(CA)

JUDGMENT DATE:           10TH MARCH, 2022

JUSTICES:                            ABUBAKAR MAHMUD TALBA, JCA

                                           MOHAMMED BABA IDRIS, JCA

                                           KENNETH IKECHUKWU AMADI, JCA

COURT DIVISION:            KADUNA

PRACTICE AREA:              CRIMINAL LAW AND PROCEDURE- CRIMINAL TRIAL/PROCEEDINGS:

FACTS

Meli Inemiebi (Appellant), along with one Michael Okeke, were jointly charged before the Katsina State High Court for the offence of armed robbery punishable under Section 1 (2)(b) of the Robbery and Fire Arms Act Chapter R11 Laws of the Federation of Nigeria, 2004, to which both of them pleaded not guilty.

The prosecution filed a Charge against the two accused persons, which was later substituted for another Charge. In the said former charge before it was substituted, the prosecution had called (Five) 5 witnesses.

After the former charge was substituted with the present charge, the hearing commenced afresh. The new charge was then read to the accused persons, they understood the same and then took their plea. In proof of its case, the prosecution called (Five) 5 witnesses and tendered 6 (Six) exhibits admitted in evidence. The prosecution then also filed a motion on notice seeking permission from the Court to include an item on the list of exhibits (a toy pistol). The Court granted the application.

The Appellant, on the other hand, testified for himself and called one other witness.

In its considered judgment, the High Court found the Appellant guilty as charged, convicted and sentenced him accordingly.

Dissatisfied, the Appellant appealed.

ISSUES

Among other issues, the appeal was determined upon consideration of the issues thus;

1) Whether it is not fundamentally fatal for the trial Court to neglect or refuse to comply with the post amendment requirements of charges as stipulated or provided by law.

2) Whether the learned trial Judge was right when his Lordship granted the Respondent’s application for substitution of charge after calling 5 witnesses.

COUNSEL SUBMISSION

Learned Counsel for the Appellant argued that the learned trial judge erred when he continued with the matter, conducted the trial and convicted the Appellant after the amendment of the Charge without taking the fresh plea of the Appellant as provided for under the Criminal Procedure Code and this has thus rendered the entire trial a nullity. That the trial Court should have read and explained the new/amended charge to the accused person, and thereafter taken a new plea from him.

Counsel further submitted that the Respondent had already called 5 (Five) witnesses and closed its case before bringing an application to substitute the charge. That the trial Court ought not to have allowed the substitution of the charge as the substitution was prejudicial to the Appellant and amounted to double jeopardy.

In response, Learned Counsel for the Respondent contended that the proceedings were misconceived. That a motion on notice seeking permission to include an item on the list of exhibits is seeking to amend the list of exhibits and not to amend the charge. Thus, there was no need to take a fresh plea of the Appellant.

DECISION/HELD:

On the whole, the Court of Appeal found the appeal unmeritorious and thereby dismissed the same.

RATIOS

1. CRIMINAL LAW AND PROCEDURE- CRIMINAL TRIAL/PROCEEDINGS: Whether an application to add an item on the list of exhibits amounts to an amendment of a charge to warrant the taking of another plea by the accused

“However, another look at the Record of Appeal particularly pages 8, 60, 61 and 62 shows that the Respondent filed another motion dated the 25th day of November 2008 applying for leave of the trial court to include another item in its list of exhibits after the Appellant took his plea to the charge against him. The application was heard by the Court on the 24th day of February 2009 and the trial court gave its ruling granting the said application on the 24th day of March 2009. To my mind, the application to add an item on the list of exhibits does not warrant the taking of another plea by the Appellant after he had taken the plea in the substantive charge and the failure to do so did not in any way prejudice him. There is also no material placed before this Court by the Appellant showing that he was prejudiced by the said application or the subsequent order made by the trial Court for the addition of the stated exhibit to the list of exhibits that were already a part of the substantive charge. Also, any party during the subsistence of a matter can make an interlocutory application which the Court is likely to grant or refuse and again, to my mind, this is clearly the situation in the instant case as it relates to the said application. It is, therefore, my view that the trial Court did not neglect or refuse to comply with the post amendment requirements of charges as stipulated or provided by law.” Per IDRIS, J.C.A.

• CRIMINAL LAW AND PROCEDURE – CHARGE(S): Whether the Court can substitute/add/amend a charge at any stage before judgment

“Generally, the aim of every established court is to promote justice and fairness among litigants. In so doing, the court accommodates mechanisms and ideas that are fair and necessary in order to arrive at justice. One of the many mechanisms put in place by the court is the power of the court to amend processes at any time before judgment is delivered. In that sense, nothing shall prohibit a trial court from acting within the ambit of the law to arrive at a just conclusion of a case including the power to amend a criminal charge. That having been said, by virtue of Section 208 of the Criminal Procedure Code, the trial court is empowered to alter or add to any charge at any time before judgment is given or verdict returned and every such alteration or addition shall be read and explained to the accused which was what happened in the case at hand. There is no evidence from the Appellant to show how the Appellant was prejudiced by the substitution of the criminal charge against him, and I so hold. See also the case of THE STATE VS. OLATUNJI (2003) 14 NWLR (PT. 839) 138 AT PP. 163 – 164. Also, the Appellant’s Counsel’s argument was not backed by even a single legal authority in support. The authority on double jeopardy that the Appellant cited, does not in any way apply to this case. The principle of double jeopardy as provided by Section 36(9) of the Constitution of the Federal Republic of Nigeria (1999) as amended states thus: “No person who shows that he has been tried by any Court of competent jurisdiction or Tribunal or a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order of a superior Court.” (Emphasis Mine) From the above, it is clear that the principle of double jeopardy does not apply at all to this case. A charge that has been substituted or altered or amended does not amount to a new or different criminal proceeding. It is thus on the above finding that I am of the opinion that the learned trial judge was right when he granted the Respondent’s application for substitution of the charge after calling 5 witnesses because he is empowered to do so at any stage of the criminal proceeding provided there is no proof of miscarriage of justice on the Appellant.” Per IDRIS, J.C.A.