– Recall of a witness where amendment of charges is made.
S. 219 of Administration of Criminal Justice Act 2015 provides:
Where a charge is altered, amended or substituted after the commencement of the trial, the prosecutor and the Defendant shall be allowed to recall or re-summon and examine any witness who may have been examined and to call any further witness, provided that such examination shall be limited to the alteration, amendment or substitution made.
The section says, the “prosecutor and the Defendant shall be allowed”. This presupposes that there should be an application by the prosecutor or the defendant to recall a witness, which the court shall i.e, must allow, it does not place a duty on the court to automatically recall a witness, after an amendment to a charge.
Secondly that such examination, of the recalled witness shall – which is mandatory be limited to the alteration, amendment or substitution made only.[1]
– Effect of an amendment to an existing charge
The law is that upon an amendment of a charge, the new charge is deemed to be the original charge before the Court from the date of the amendment.[2] The effect of the amendment is to render all previous charges irrelevant. Essentially, the amended charge replaces the original charge.[3]
– Whether a fresh plea must be made where there is an amendment to a charge; effect of failure to obtain a fresh plea
Section 216 of Administration of Criminal Justice Act provides:
(1) A Court may permit an alteration or addition to a charge or framing of a new charge at any time before judgment is pronounced.
(4) Where any Defendant is committed for trial without a charge or an imperfect or erroneous charge, the Court may frame a charge or add or alter the charge as the case may be having regards to the provisions of this act.
217 (1) Where a new charge is framed or alteration made to a charge under the provisions of Section 216 of this Act , the Court shall call on the Defendant to plead to the new or altered charge as if he has been arraigned for the first time.
Section 216(1) and (4) allow a charge to be amended by either the Court suo motu or the prosecution at any time before the delivery of judgment. And when this is done, Section 217(1) contains a mandatory provision to the effect that the Defendant shall be called upon to take his plea afresh. The provision of Section 217(1) is in pari materia with Sections 163 and 164(1) of the Criminal Procedure Act of 1945 and Section 208 of the Criminal Procedure Code of 1960. [4]
However, while giving consideration to this, it should be borne in mind that unlike the respective provision of the Criminal Procedure Act, the mandatory provision of Section 217(1) of the Administration of Criminal Justice Act of 2015 has been watered down by that of Section 218(1) that provides thus:
Where the charge as revised under Section 216 or 217 of this Act is such that proceeding immediately with the trial is not likely in the opinion of the Court to prejudice the defendant in his defence or the prosecutor, as the case may be, in the conduct of the case, the Court may in its discretion forthwith proceed with the trial as if the charge so revised had been the original charge.
In other words, the appellate court will only interfere with the findings of the trial court if the failure to take the Appellant’s plea occasioned a miscarriage of justice which also amounted to a breach of his right to fair hearing.[5]
[1] Osuolale v the State (1991) 8 NWLR (Pt 212) 770 at 777 – 778.
[2] Attah v State (1993) 7 NWLR (Pt 305) 257, Suleiman v State (2017) LPELR 43353(CA). Mahmuda v State (2019) LPELR-47974(CA) 17-18 paras E-C.
[3]Uguru v State (2002) 9 NWLR (Pt 771) 90 [PER KALGO, JSC; PML (Nig) Ltd v FRN (2017) LPELR-43480(SC).
[4] Princess and another v State (2002) LPELR-2925 (SC) 18-19, paras. B; Okonofua v The State (1981) 12 NSCC 233; Okegbu v The State (1979) 11 SC 1; PML (Nig) Ltd v FRN (2017) LPELR-43480 (SC); Uguru v State (2002) 9 NWLR (Pt 771) 90; Attah v State 1993 LPELR- 598 (SC).
[5] Fregene v IGP (2019) LPELR-47785(CA) 11-23.