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  • 2003-02-10
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Princent v. State

DOMINIC PRINCENT

MICHAEL UDOH

V

THE STATE

SUPREME COURT OF NIGERIA

SALIHU MODIBBO ALFA BELGORE, JSC (Presided)

ANTHONY IKECHUKWU IGUH, JSC ( Read the Lead Judgment )

UMARU ATU KALGO, JSC

SAMSON ODEMWINGIE UWAIFO, JSC

AKINTOLA OLUFEMI EJIWUNMI, JSC

SC. 158/2001

FRIDAY, 13TH DECEMBER, 2002

COURT - Judges - Duty of to act as unbiase umpire between the parties before them - Whether bound to do everything possible to achieve justice in any dispute between parties before them

COURT - Judges - Where contradictions in evidence of prosecution witnesses raise no doubt as to the guilt of the accused - Duty of trial Judge

COURT - Power of to permit or direct the framing of a new charge Distinction between provisions of sections 162 and 163 of Criminal Procedure Act thereon

COURT - Supreme Court - When will interfere with concurrent findings of lower courts

COURT - Trial Court - Power of to amend a charge

CRIMINAL LAW AND PROCEDURE - Charges - Amendment of after commencement of trial - Right of accused person thereafter - Whether still entitled to recall witnesses who had already testified for further cross-examination or to call new witnesses

CRIMINAL LAW AND PROCEDURE - Charges - Amended charge - Failure to take a fresh plea in respect of - Effect

CRIMINAL LAW AND PROCEDURE - Charges - Amendment of - Power of trial court to amend a charge

CRIMINAL LAW AND PROCEDURE - Charges - Amendment of - Whether a charge can be amended after the final addresses of counsel Provisos thereto - Need to make same without occasioning injustice to the accused

CRIMINAL LAW AND PROCEDURE - Charges - Framing of a new charge -  Power of court to permit or direct same - Distinction between the provisions of sections 162 and 163 Criminal Procedure Act thereon

CRIMINAL LAW AND PROCEDURE - Prosecution witness - Evidence of -  Conflict or contradictions therein - Nature of contradictions that will be fatal to prosecution’s case

CRIMINAL LAW AND PROCEDURE - Prosecution witnesses -

Contradictions in evidence of - Where raise no doubt as to the guilt of the accused - Duty of trial Judge

EVIDENCE - Evidence of prosecution witnesses - Conflict or contradictions therein - Nature of that will be fatal to prosecution’s case

EVIDENCE - Evidence of prosecution witnesses - Contradictions therein Where raise no doubt as to the guilt of the accused - Duty of trial Judge

Issues:

1.              Whether or not in the circumstances of this case the appellants were not denied fair hearing in their trial, conviction and sentence when the court of first instance suo motu after addresses of parties directed the prosecution to amend the charge against the appellants to include an offence of Joint Act so as to ground a basis for their conviction and sentence to death.

2.              Whether or not the provision of section 208 of the Criminal Procedure Code, Cap 30, Laws of Northern Nigeria in the circumstances and application in this case is not in conflict with section 33 of the 1979 Constitution of Nigeria as amended.

3.              Whether or not the material contradictions in the evidence of the prosecution witnesses in this case relating to the charges against the appellants did not create enough doubt on the guilt of the appellants and whether the prosecution had proved its case beyond reasonable doubt against the appellants.

Facts:

The appellants herein were on the 4th day of October, 1989, arraigned before the High Court of Justice, Kano State, charged with the offence of culpable homicide punishable with death contrary to section 221 of the Penal Code. The 1st appellant was the boyfriend of PW5, one Miss Rita Eru. On 1st January, 1989 the 1st appellant with his brother, the 2nd appellant and one Sylvester Aguko, the DW3 went on invitation to the residence of PW5 with a view to celebrate the New Year Festivities together with her. While they were there, the deceased, one Joseph Egbe and his friend, Albert Eka, the PW3 arrived. The deceased and his friend greeted the appellants in English language but greeted PW5 and her two sisters in their Igede language as they too came from Igede in Benue State as PW5 and her sister. The 2nd appellant insisted that the deceased should not converse in their native language but in English. A fight later ensued over this issue but was immediately settled. The appellants together with DW3 left the premises to return home while the deceased and PW3 continued their conversation with PW5 and her sisters.

While the deceased and PW3 were about leaving, the appellants came back to the premises armed with dangerous weapons which included an iron rod and an iron pipe with which the appellants hit the deceased on the forehead and at the back of his head. The deceased as a result of the sudden attack instantly fell on the ground and was rushed to the Murtala Mohammed Hospital, where he was confirmed dead by the medical doctor on duty, the PW8 whose evidence revealed that the deceased’s death was as a result of fracture of the skull and internal bleeding following the head injuries sustained.

The case of the defence was quite different as the appellants claimed that there was only one fight between them and the deceased with PW3 and that the latter party were at all material times aggressors. They equally denied using neither iron rod nor iron pipe to assault the deceased. The 2nd appellant claimed that PW4 hit him during the fight with a high-heeled shoe and that she wanted to hit a second time but he dodged and the shoe landed on the deceased. The appellant equally maintained that they never returned to the premises of PW5 a second time after the fight was stopped and they left the scene.

At the conclusion of the trial, the trial court accepted as established the evidence of the prosecution witnesses against both accused persons and consequently convicted and sentenced them .

Dissatisfied, the appellants appealed against their conviction and sentence to the Court of Appeal, Kaduna Division, which court dismissed the appeal and affirmed the conviction and sentences passed on the appellants by the trial court. Being dissatisfied still, the appellants have now appealed to the Supreme Court.

The Supreme Court considered the provisions of section 208 of the Criminal Procedure Code, Cap. 30, Laws of Northern Nigeria which are in pari materia with those of section 163 of the Criminal Procedure Act, Cap. 80, Laws of the Federation of Nigeria, 1990 which provides thus:-

“208(1) Any court may alter or add to any charge or frame a new charge at any time before judgment is pronounced.

(2) Every such alteration or addition or new charge shall be read and explained to the accused and his plea thereto shall be taken.”

Section 162 of the Criminal Procedure Act provides as follows:

“162  Where any person is arraigned for trial or  an imperfect or erroneous charge the court may permit or direct the framing of a new charge or add to or otherwise alter the original charge.”