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Position of the law where a court amends a charge suo motu  

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Nnodum V. State N
CITATION: (2020) LPELR-50179 (CA)
 
In the Court of Appeal
In the Awka Judicial Division
Holden at Awka

ON WEDNESDAY, 10TH JUNE, 2020
Suit No: CA/AW/7C/2019

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Before Their Lordships:
 
CHIOMA EGONDU NWOSU-IHEME                    
Justice, Court of Appeal
RITA NOSAKHARE PEMU                                       
Justice, Court of Appeal
BITRUS GYARAZAMA SANGA                                  
Justice, Court of Appeal
 
Between
 
NNAMDI NNODUM                                      
– Appellant(s)
 
And
 
THE STATE                                                 
– Respondent(s)
 
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LEADING JUDGMENT DELIVERED BY CHIOMA EGONDU NWOSU-IHEME, J.C.A.
FACTS

This appeal is against the decision of the High Court of Anambra State presided over by A. O. Okuma, J delivered on June 12, 2017.
    
The Appellant was arraigned before the High Court on the information of a one-count charge of kidnapping, contrary to Section 316 (2) (b) of the Criminal Code Cap 36 vol. 2 Revised Laws of Anambra State 1991 as amended by the Criminal Code (Amendment) Law 2009.
   
The case of the Respondent was that the Appellant and one Nnamdi Boniface, on January 23, 2011, at No. 1 Ridge Road G.R.A. Onitsha kidnapped one Mrs. Grace Odimegwu and demanded the sum of N3million as a ransom for her release. The money was paid and the victim was released. 
   
One Ikenna Odimegwu, the son of the victim was said to have been informed by a caller that it was the Appellant who masterminded the kidnap. Later on, the said Appellant was arrested. His arrest led to the arrest of the other accused person.
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In his defense, the Appellant denied taking part in the kidnapping of Mrs. Grace Odimegwu. He claimed to be a trader who trades in engine oil and gas at Asaba tollgate. He said he was arrested in his shop. He maintained that he did not get any share of the ransom paid by the victim.
   
The trial Judge amended the charge suo motu, (on his own) without the accused person taking a fresh plea and without both Counsels addressing it on the said issue. The Court found the Appellant guilty under Section 315 of the Criminal Code Cap 36 Revised Laws of Anambra State 1991 and sentenced him to death by hanging.
  
Dissatisfied, the Appellant appealed to the Court of Appeal.

ISSUES FOR DETERMINATION
1. Whether the Appellant’s right to a fair hearing was not breached by the amendment affected suo motu by the trial Court without calling on Appellant’s Counsel to address the Court on it before delivering Judgment on June 12, 2017.
2. Whether the trial court had jurisdiction, the whole trial being a nullity, fresh plea not having been extracted from the Appellant after the trial Court suo motu amended the charge/information No. 0/61c/2012.
3. Whether the prosecution successfully proved the case against the Appellant as required by law.

APPELLANT’S SUBMISSIONS
Arguing the 1st and 2nd issues, Counsel for the Appellant submitted that the learned trial Judge overstepped his bounds when, in delivering the Judgment, he suo motu raised the issue of the Appellant being charged under the wrong section of the law and treated the said Section 316(2) (b) of the Criminal Code as being on the pedestal of Section 315(2) (c) of the Criminal Code (Amendment) Law of Anambra State 2009 on his own volition without giving the Appellant the opportunity to take a fresh plea or comment on same and thereby denying him the right to fair hearing. Counsel submitted that a breach of fair hearing in any trial nullifies such trial and the decision taken becomes a nullity. He cited Okedare V. Adebara 6 NWLR (PT. 349) 157. Counsel argued that where issues are raised suo motu by the Court, the Court must invite parties to address it on those issues before making findings on those issues. He cited C. D. Ononuju V. The State (2014) 8 NWLR (PT.1409) 345 – 436.
   
Counsel also referred to Section 272 of the Administration of Criminal Justice Law 2010 and cited Section 248(1) of the same Law, arguing that every charge shall contain the written law and the section of the written law against which the offence is said to have been committed.

RESPONDENT’S ARGUMENTS
Responding to the Appellant’s arguments on the 1st and 2nd issues, Counsel for the Respondent cited Sections 271, 273 and 274 of the Administration of Criminal Justice Law, 2010 of Anambra State and the case of Okpa V. State (2017) 15 NWLR (PT.1587) at pages 17 – 20 and posited that no omission to state the offence or the particulars of the offence shall be regarded as material at any stage of the case unless the defendant was prejudiced or misled by such error or omission. He contended that it is immaterial and does not matter under which section of the law, the definition or the penal section an Appellant is convicted provided the facts support the conviction.
  
Counsel submitted that no miscarriage of justice was occasioned to the Appellant who understood perfectly the particulars of the charge against him and defended it without raising any objection at the trial and who has not shown that he was prejudiced in any way whatsoever by the amendment effected by the learned trial Judge. 

RESOLUTION OF THE ISSUES
In resolving issues 1 and 2, the Court noted that the Appellant was charged under Section 316(2) (b) of the Criminal Code Cap 36 of the Revised Laws of Anambra State as amended by the Criminal Code (Amendment) Law, 2009, which deals with deprivation of liberty, which is a misdemeanor and punishable with two years imprisonment. However, it is Section 315 of the Criminal Code Cap 36 Revised Laws of Anambra State 1991 that deals with kidnapping. The Court in its judgment suo motu amended the Charge to reflect Section 315 instead of the wrong Section 316 (2)(b) that the Appellant was charged under, without the Appellant taking a new plea and taking addresses from Counsel on the matter. In doing this, the Court relied on Section 272 of the Administration of Criminal Justice Law of Anambra State, 2010 which provides that:
“No error in stating the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any stage of the case as material unless the defendant was in fact misled by such error or omission.” The question that arose was whether the trial judge had the power to suo motu amend the Charge without the Appellant taking a new plea and taking addresses from Counsel.
    
In resolving the above question, the Court stated that the law gives the trial Judge the power to make the alteration, or additions but in such circumstances, the amendment or additions shall be read and explained to the accused person. See Ogudo V. State (2011) 18 NWLR (Pt. 1278) PG 1. Failure to adhere to this procedure would render the whole proceedings a nullity. See also Joseph Okosun V. The State (1979) 2 F.N.R PG 1. The Court also stated that where a Court raises issues suo motu, the Court must invite parties and counsel to address it on those issues before making findings on those issues and using them in arriving at a decision or using them in writing its Judgment. See C. D. Ononuju V. The State (2014) 8 NWLR (Pt.1409) 345– 436.
   
Applying the above to the instant case, the Court held that Section 272 of the Administration of Criminal Justice Law of Anambra State, 2010 could not avail the trial judge because Section 316(2) of the Criminal Code Cap 36 of the Revised Laws of Anambra State as amended by the Criminal Code (Amendment) Law, 2009 under which the Appellant was charged is a misdemeanor and carries a penalty of just two years, while Section 315(2) of the Criminal Code Cap 36 of the Revised Laws of Anambra State as amended by the Criminal Code (Amendment) Law, 2009 under which the learned trial Judge affected the amendment suo motu carries a death penalty. The Court held that in that circumstance, the trial Judge ought to have invited the Appellant to take a new plea and taken addresses from both Counsels before entering judgment. His failure to do that breached the right to a fair hearing of the Appellant and as such rendered the proceedings at the High Court a nullity. The Court further held that where there is a breach of the right to a fair hearing, the proper order to be made is an order of re-trial. See Udensi V. Odusote (2003) 6 NWLR (Pt. 817) PG. 545.

HELD
The Court held that the failure of the trial judge to take a fresh plea from the Appellant and take addresses from both Counsels after amending the charge suo motu amounted to a breach of the right to fair hearing of the Appellant and rendered the trial a nullity. The Court consequently made an order for a re-trial and remitted the case back to the Chief Judge of Anambra State for re-assignment to another Judge of the High Court of Anambra State other than A. O. Okuma for accelerated hearing and determination. 
 
Appearances

J.O. Onwujekwe Esq.     For Appellant.
C. V. Ononye-Ekwerekwu, Principal Senior Counsel, (Ministry of Justice) Anambra State. For Respondent
Compiled by Lawpavilion

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