Right of a Defendant to be Allowed to Recall Witnesses who have Testified Before the Amendment of a Charge

CASE TITLE: MOHAMMED v. FRN (2025) LPELR-80091(CA)
JUDGMENT DATE: 29TH JANUARY, 2025
PRACTICE AREA: CRIMINAL LAW AND PROCEDURE
LEAD JUDGMENT: UGOCHUKWU ANTHONY OGAKWU, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION:

This appeal borders on Criminal Law and Procedure.

FACTS:

This appeal is against the judgment of the Borno Statte High Court delivered on September 12, 2023, by A. B. Kumalia, J.

The Appellant operates a Bureau De Change in Maiduguri, Borno State. He had an arrangement with the nominal complainant where the monies of Chadian traders who come to purchase goods in Nigeria are sent in advance to the Appellant and upon the arrival of the traders, they collect the money from the Appellant for their business. Sometime in 2018, the sum of N43,328,000.00 (Forty-Three Million, Three Hundred and Twenty-Eight Thousand Naira) was in the usual course of the arrangement sent to the Appellant. Upon the arrival of the Chadian traders in Nigeria, the Appellant informed them that there was no money to give to them. All demands and remonstrations to the Appellant yielded no result. A Petition was then written against the Appellant to the Economic and Financial Crimes Commission.

​Subsequently, the Appellant was arraigned and charged with obtaining money by false pretenses contrary to Section 1 (1)(b) and punishable under Section 1 (3) of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006. The matter went to trial, and the prosecution called three witnesses and tendered documentary exhibits as proof of the Charge. The Appellant testified in his defence and did not call any other witness. The matter was thereafter adjourned for address. On the date fixed for the adoption of address, the prosecution applied to amend the charge to charge the Appellant for criminal breach of trust contrary to Section 311 and punishable under Section 312 of the Penal Code Law, Cap. 102, Laws of Borno State of Nigeria. The amendment was granted, and the Appellant took a fresh plea to the amended charge, after which the case was adjourned again for address. The trial Court delivered its judgment on September 12, 2023, and convicted the Appellant on the Amended Charge.

Dissatisfied, the Appellant approached the Court of Appeal.

ISSUES FOR DETERMINATION:

In determination of the appeal, the Court adopted the two issues distilled by the Appellant as follows:

1. Whether the learned trial Court was right to have adjourned the matter for adoption of addresses after taking the plea of the Appellant on the amended charge without affording him any opportunity to defend the amended charge?

2. Whether in view of the evidence led, the offence of criminal breach of trust has been established against the appellant to warrant his conviction?

DECISION/HELD:

In conclusion, the Court dismissed the appeal.

RATIOS:

• APPEAL- INTERFERENCE WITH EVALUATION OF EVIDENCE: Scope of interference by an Appellate Court where the issue is that of credibility of witnesses
• CRIMINAL LAW AND PROCEDURE- AMENDMENT OF CHARGE: Right of a defendant to be allowed to recall witnesses who have testified before the amendment of a charge
• CRIMINAL LAW AND PROCEDURE- CRIMINAL BREACH OF TRUST: Statutory provision and ingredients of the offence of criminal breach of trust
• EVIDENCE- BURDEN OF PROOF/STANDARD OF PROOF: Burden and standard of proof in criminal cases and whether proof beyond reasonable doubt means proof beyond a shadow of doubt
• EVIDENCE- CONTRADICTION IN EVIDENCE: Whether minor contradiction in the evidence of witnesses can be fatal to a case
• EVIDENCE- EVALUATION OF EVIDENCE: Duty of trial Court to evaluate evidence and ascribe probative value; circumstance(s) in which the appellate Court will/will not interfere with the evaluation by the trial Court

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