AYODELE v THE STATE

BUNMI AYODELE V. THE STATE

In The Court of Appeal of Nigeria

On Wednesday, the 8th day of December, 2010

CA/B/291C(B)/2008

Before Their Lordships

NWALI SYLVESTER NGWUTA Justice of The Court of Appeal of Nigeria

CHINWE E. IYIZOBA Justice of The Court of Appeal of Nigeria

MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria

Between

BUNMI AYODELE

Appellant(s)

AND

THE STATE

Respondent(s)

RATIO DECIDENDI

1. CRIMINAL LAW AND PROCEDURE -  AMENDMENT OF A CHARGE: Whether a charge can be amended after final address

"The law is well settled that a charge can be validly amended even after final addresses of counsel. See DOMINIC PRINCENT & ANOR. V. THE STATE (2002) 18 NWLR (Pt. 798) 49 at 67-68." Per Adumein, J.C.A.

2. CRIMINAL LAW AND PROCEDURE -  DRAFTING A CHARGE: Necessary contents that must appear when drafting a charge

"It is common legal knowledge that in drafting a charge or an information, its contents should include the name of the accused person (s), date of the commission of the offence, place of commission of the offence, statement of the offence committed (in its ordinary name and not technical name), name of the person and of the thing against whom or in respect of which the offence was committed, the enactment and the section thereof allegedly contravened and the signature of the person drafting the charge. Please see CRIMINAL PROCEDURE IN NIGERIA - LAW AND PRACTICE by Oluwatoyin Doherty, pages 172-175 and the cases cited therein." Per Adumein, J.C.A.

3. CRIMINAL LAW AND PROCEDURE -  PLEA OF AN ACCUSSED: Whether a plea needs to be retaken by the accused if the charge is amended or altered and the effect thereof

"The law is settled that once information or a charge is altered or amended, the plea of the accused must be taken again.There are many decided cases on this issue. For example, in YOUNG UKAUWA UGURU V. THE STATE (2002) 9 NWLR (Pt.771)90 at 103, para. D, the Supreme Court, per KALGO, J.S.C. while interpreting section 163 of the Criminal Procedure Law of Eastern Nigeria, 1963 which is in pari materia with section 163 of the Criminal Procedure Law of Ondo State, 1978, held as follows: "This section empowers a court to alter, amend or add to any charge in any criminal case before it at any time before judgment is given in the case .....but ....that the amended charge be read out and explained to the accused." (underlining mine) In OKOSUN V. THE STATE (1988) 7 SCNJ 118, where a charge of robbery was amended during the trial and the trial continued without a fresh plea by the accused, the conviction and sentence of the accused was nullified by the Supreme Court. Similarly in OKEGBU V. THE STATE (3FSC) 14, the Federal Supreme Court allowed an appeal, and set aside the conviction of the accused for murder on the ground that the trial court did not comply with sections 163 and 164 (1) of the Criminal Procedure Act by failing to obtain a fresh plea from the accused after the first amendment. In that case, the charge was amended twice. After the first amendment, a fresh plea was not taken. There was fresh plea after the second amendment, yet the trial and conviction of the accused was declared null void and of no effect." Per Adumein, J.C.A.

4. INTERPRETATION OF STATUTE -  SECTION 163 AND 164 OF THE CRIMINAL PROCEDURE LAW OF ONDO STATE: Interpretation of section 163 and 164 (1) of the Criminal Procedure Law of Ondo State

"Sections 163 and 164 (1) of the Criminal Procedure Law of Ondo State prescribe the procedure to follow when an information or a charge is altered. Those sections provide thus: "163. Any court may alter or add to a 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. 164 (1)-lf a new charge is amended or alteration to the charge under the provisions of section 162 or 163, the court shall forthwith call upon the accused to plead thereto and to state whether he is ready to be tried on such charge or altered charge". (underlining mine) The use of the word "shall" in sections 163 and 164 (1) of the Criminal Procedure Law places a mandatory burden on the court to invite an accused person to take his plea again, once a charge or an information is altered or amended. The magnitude or quantum of the amendment involved and the reasons for the amendment are irrelevant." Per Adumein, J.C.A.

5. INTERPRETATION OF STATUTE -  SECTION 36(6)(a) OF THE 1999 CONSTITUTION: Interpretation of section 36(6)(a) of the Constitution of the Federal Republic of Nigeria, 1999

"Section 36(6)(a) of the Constitution of the Federal Republic of Nigeria, 1999 which provides thus: "36(6) - Every person who is charged with a criminal offence shall be entitled to - (a) be informed promptly in the language that he understands and in detail of the nature of the offence". The provision of Section 36(6)(a) of the Constitution is clear and plain and no external is required to interpret same. The provision relates to the practice and procedure to follow or adopt when someone is charged with any criminal offence. The provision as rightly stated by Mr. S.T. Hon. (SAN) -learned author of the book titled CONSTITUTION LAW AND JURISPRUDENCE IN NIGERIA, page 113, has received judicial interpretation by our Courts. The conditions set out in Section 36(6)(a) of the Constitution include the procedural step of reading over and explaining the information or charge to the accused, in the language he understands, to the satisfaction of the court which would then call upon him (the accused) to plead thereto. See ADENIJI V. STATE (2001) 13 NWLR (Pt.375). In that case, at page 390, Kastina -Alu, J.S.C (as he then was, now CJN), held in respect of section 36(6)(a) of the Constitution, inter alia, as follows: "......once the record of the court shows that the charge had been read over and explained to the accused, and the accused pleaded to it before the case proceeded to trial, it is to be presumed that everything was regularly done." Per ADUMEIN J.C.A.

MOORE A. A. ADUMEIN J.C.A. (Delivering the Leading Judgment): The appellant and one Alonge Temitope were arraigned in the High Court of Ondo State, sitting at Akure, and charged with the following offences, namely:-

 "COUNT 1:

STATEMENT OF OFFENCE

 CONSPIRACY, contrary to and punishable under Section 5 (b) of the Robbery and Firearms (Special Provisions) Act Cap 398 Vol. XXLL Laws of the Federation of Nigeria, 1990.

PARTICULARS OF OFFENCE

 Alonge Temitope and Bumi Ayodele on or about 18th of March, 2006 at Akure in the Akure Judicial Division, conspired with one other now at large to commit felony to wit Armed Robbery.

 "COUNT II:

STATEMENT OF OFFENCE

 ARMED ROBBERY, contrary to and punishable under Section 1 (2) (b) of the Robbery and Firearms (Special Provisions) Act Cap 398 Vol. XXLL Laws of the Federation of Nigeria, 1990.

PARTCULARS OF OFFENCE

 Alonge Temitope and Bunmi Ayodele on or about the 18th day of March, 2006 at No.30 Ala Close off Sijuade Akure in the Akure Judicial Division robbed one Mrs. lkengboju Onasile of the sum of Five Hundred Naira, One Sagem phone, VCD player, a Video machine, while armed with offensive weapons to wit, gun and knife."

 The case was heard and determined by Hon. Justice O.O. Akeredolu of Ondo State High court on the 10th day of December, 2007 judgment was delivered by Akeredolu, J. whereby the appellant and his co-accused (Alonge Temitope) were convicted and accordingly sentenced to death by hanging or firing squad. The judgment of the lower court is at pages 80 to 109 of the record of appeal. This appeal is against the said judgment of Akeredolu, J.

 The appellant filed a notice of appeal dated the 27th day of December, 2007 (page 119 of the record of appeal) in which two (2) grounds were set out. With leave of this Court, the appellant filed an amended notice of appeal. The appellant's amended notice of appeal contains 5(five) grounds.

 The parties filed and exchanged briefs of argument in this appeal. The appellant's amended brief of argument dated the 29th day of June, 2010 was filed on the 2nd day of July, 2010 and it was deemed by this court as having been properly filed and served on the 11th day of November, 2010. The respondent's brief of argument was filed on the 10th day of June, 2010, with leave of this Court.

 The appellant's reply brief dated the 25th day of June, 2010 but filed on the 2nd day of July, 2010 was deemed as properly filed and served by this Court on the 11th day of November, 2010.

 At the hearing of the appeal, Olakunle Agbedi, Esq, learned counsel for the appellant adopted the appellant's brief and reply brief, relied on them and urged the court to allow the appeal.

 On the other hand, Mrs. Adeyemi- Tuki (D.P.P. Ondo State) adopted the respondent's brief settled by O.O. Arowosegbe, Esq (Deputy Director of Public Prosecutions, Ondo State) and filed on the 10th day of June, 2010 and relied on same as the respondent's reply to the appellant's amended brief of argument and urged the Court to dismiss the appeal.

 In his amended brief of argument, Mr. Agbebi, learned counsel for the appellant formulated two issues for determination. The two issues are:-

 1. WHETHER THE PROVISION OF THE ROBBERY & FIREARMS (SPECIAL PROVISIONS) ACT CAP. 398 LAWS OF THE FEDERAL REPUBLIC OF NIGERIA, 1990 AS AMENDED BY THE TRIBUNALS (CERTAIN CONSEQUENTIAL AMENDMENTS ETC) DECREE, 1999 UNDER WHICH THE APELLANT WAS TRIED, CONVICTED AND SENTENCED ARE NOT INCONSISTENT WITH THE PROVISIONS OF SECTION 36(6) THE CONSTITUTION OF FEDERAL REPUBLIC OF NIGERIA 1999 AND THEREFORE VOID?

 2. WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT IN HOLDING THAT THE PROSECUTION PROVIDE A CASE OF ARMED ROBBERY AGAINST THE APPELLANT BEYOND REASONABLE DOUBT PARTICULARLY IN THE LIGHT OF THE EVIDENCE ADDUCED?

 The learned counsel for the respondent agreed with the learned counsel on issue number 1 reproduced above but reframed the second issue as follows:

 'WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT IN HOLDING THAT THE PROSECUTION PROVED A CASE OF CONSPIRACY AND ARMED ROBBERY AGAINST THE APPELLANT BEYOND REASONABLE DOUBT?"

 I agree with Mr. Arowosegbe, Esq (Deputy Director of Public Prosecutions, Ondo State) in his formulation of the second issue which the parties have put forward for determination in this appeal. I will, therefore, adopt the second issue as formulated by Mr. Arowosegbe.

 1. WHETHER THE PROVISION OF THE ROBBERY & FIREARMS (SPECIAL PROVISIONS) ACT CAP. 398 LAWS OF THE FEDERAL REPUBLIC OF NIGERIA, 1990 AS AMENDED BY THE TRIBUNALS (CERTATN CONSEQUENTIAL AMENDMENTS ETC) DECREE, 1999 UNDER WHICH THE APPELLANT WAS TRIED, CONVICTED AND SENTENCED ARE NOT INCONSISTENT WITH THE PROVISIONS OF SECTION 36(6) THE CONSTITUTION OF FEDERAL REPUBLIC OF NIGERIA 1999 AND THEREFORE VOID?

 Mr. Olakunle Agbebi, learned counsel for the appellant, referred to section 36(6)(a) of the Constitution of the Federal Republic of Nigeria, 1999 and submitted that section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act (Cap. 398) Laws of the Federation of Nigeria 1990 as amended by the Tribunals (Certain Consequential Amendments, Etc) Decree, 1999 "does not give any description of the nature or detail of the offence of armed robbery either as to what constitutes the offence or as to the ingredients of the offence". The learned lawyer argued that by section 36(6) of the Constitution of the Federation Republic of Nigeria 1999, the appellant was "entitled to be informed in detail about the nature of the offence for which he is charged". The learned counsel for the appellant referred to the definitions of the words "nature" and "particulars" in Oxford Advanced Learners Dictionary and submitted that the nature of an offence is not the same as "the particulars of the offence which are usually spelt out in the charge". Mr. Agbebi gave the dictionary meaning of "nature" as "the basic qualities of a thing" while that of "particulars" as "a fact or detail especially one that is officially written down" and gave an illustration of the difference between the nature of man and the particulars of man.

 The learned counsel for the appellant submitted that where statutory provisions, as section 36(6) of the Constitution, "are clear, plain and unambiguous they should be interpreted in their ordinary, natural and grammatical sense". He referred the court to the cases of B.M.LTD v. WOERMANN - LINE (2009) 13 NWLR (pt.1157) 149, KSTEC V. P.D.P (2005) 6 NWLR (pt.920) 25, MOGHALU v. NGIGE (2005) 4 NWLR (pt.914) 11 and AWOLOWO V. SHAGARI (1979) 6 - 9 S.C.51

 According to the learned counsel for the appellant, section 401 of the Criminal Code Act, C38, Laws of the Federation of Nigeria, 2004 "is consistent with the provisions of section 36(6)(a) of the Constitution in that it states clearly and in detail the nature of the offence of robbery". He contended, however, that section 1(2)(a) of the ROBBERY AND FIREARMS (Special provisions) Act, Cap. 398, Laws of the Federation of Nigeria 1990, as amended by the Tribunals (certain Consequential Amendments Etc) Decree, 1999 is "inconsistent with the provisions of Section 36(6)(a) of the Constitution of the Federal Republic of Nigeria 1999 and is therefore void to the extent of its inconsistency Mr. Agbebi, learned counsel for the appellant argued that, the provisions of section 36(6)(a) of the Constitution of the Federal Republic of Nigeria, 1999 are mandatory and if not followed, strictly, "then it can safely be said that there was no fair hearing or trial". The learned counsel for the appellant relied, on this point, on the case of ALADU V. STATE (1998) 8 N.W.L.R (Pt.563) 618 at 632, per Nsofor, J.C.A.

 The learned counsel for the appellant contended that because section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, as amended, is inconsistent with the provisions of section 36(6)(a) of the Constitution, "there was not valid law under which the Appellant was charged". Learned counsel for the appellant urged the Court to resolve this issue in favour of the appellant.

 In his response, Mr. Arowosegbe, (D.P.P., Ondo State), learned counsel for the respondent submitted that the argument that section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap.398, Laws of the Federation of Nigeria, 1990 as amended, was in conflict with section 35(6)(a) of the Constitution of the Federal Republic of Nigeria, 1999 "is wrong in law". According to the learned counsel for the respondent, the error of the appellant's counsel was because of his "failure to take cognizance of the provisions contained in the interpretation section of the Robbery and Firearms Act". He referred to section 15(1) item 5 of the said Robbery and Firearms Act, where the offence of robbery is adequately defined. The respondent's counsel contended that "the provisions of a statute are to be construed together and not in isolation". On this point, he relied on the case of ADEWUMI V. ATTRONEY - GENERAL, EKITI STATE & ORS. (1996) 8 N.W.L.R. (Pt. 464) 73 at 115. The learned counsel for the respondent finally argued that "all the arguments canvassed and the authorities cited by the Appellant's Counsel amount to chasing a wild goose" and he urged the court to resolve this issue in favour of the respondent.

 In his reply brief, Mr. Agbebi, argued that the case of ADEWUMI V. ATTRONEY - GENERAL OF EKITI STATE & ORS. (supra),cited by the learned counsel for the respondent is a decision of the Court of Appeal whereas the case of M.B. LTD V. WOERMANN - LINE (2009) 13 NWLR (Pt.1157) 149 is a Supreme Court and it ought to have precedence by the principle of stare decisis.

 The appellant contended that "in construing a statute, the Court is enjoined to look at, the statute as a whole .... The question this Honourable Court is being invited to determine is whether by not mentioning the provisions of Section 15(1) of the Robbery and Firearms Act in the charge that was read to the Appellant and under which he was tried, the provisions of Section 36(6)(a) of the Constitution were properly complied with". The appellant further argued that there was compliance with the statutory provision in question.

 I have considered the contending arguments of the learned lawyers representing the parties to this appeal. I wish to say that the argument of counsel for the appellant on this issue, with due respect, is avoidable and unnecessarily technical and academic.

 This issue and the argument of appellant's counsel thereon are principally premised or planked on Section 36(6)(a) of the Constitution of the Federal Republic of Nigeria, 1999 which provides thus:

 "36(6) - Every person who is charged with a criminal offence shall be entitled to -

 (a) be informed promptly in the language that he understands and in detail of the nature of the offence".

 The provision of Section 36(6)(a) of the Constitution is clear and plain and no external is required to interpret same. The provision relates to the practice and procedure to follow or adopt when someone is charged with any criminal offence. The provision as rightly stated by Mr. S.T. Hon. (SAN) -learned author of the book titled CONSTITUTION LAW AND JURISPRUDENCE IN NIGERIA, page 113, has received judicial interpretation by our Courts. The conditions set out in Section 36(6)(a) of the Constitution include the procedural step of reading over and explaining the information or charge to the accused, in the language he understands, to the satisfaction of the court which would then call upon him (the accused) to plead thereto. See ADENIJI V. STATE (2001) 13 NWLR (Pt.375). In that case, at page 390, Kastina -Alu, J.S.C (as he then was, now CJN), held in respect of section 36(6)(a) of the Constitution, inter alia, as follows:

 "......once the record of the court shows that the charge had been read over and explained to the accused, and the accused pleaded to it before the case proceeded to trial, it is to be presumed that everything was regularly done."

 In the instant case, the record of the trial court (page 11) shows that the plea of the accused/appellant was taken after the information/charge was read and explained to the accused/appellant, in Yoruba language, to the satisfaction of the trial court before the trial of the accused/appellant commenced. On the authority of ADENIJI V. STATE (supra) at 390, the requirements of section 36(6)(a) of the Constitution were satisfied.

 With due respect to the appellant, there is no requirement in Section 36(6) (a) of the Constitution that all the details of an offence must be set out or specified in an information sheet for a criminal trial to be valid. It is common legal knowledge that in drafting a charge or an information, its contents should include the name of the accused person (s), date of the commission of the offence, place of commission of the offence, statement of the offence committed (in its ordinary name and not technical name), name of the person and of the thing against whom or in respect of which the offence was committed the enactment and the section thereof allegedly contravened and the signature of the person drafting the charge. Please see CRIMINAL PROCEDURE IN NIGERIA - LAW AND PRACTICE by Oluwatoyin Doherty, pages 172-175 and the cases cited therein. In the present case, the information under which the appellant was tried and convicted satisfied all the requirements of a valid information or charge (page 5 of the record).

 With due respect, section 36(6)(a) of the Constitution has nothing to do with the competence or validity of the enactment or the section thereof under which an accused is charged; it is constitutional prescription for procedure to be employed in ensuring that an accused fully understands the charge for which he is being tried. There is nothing ingenious in the argument of the appellant which is an unnecessary incursion in academic excursion. The realm of academic exercise is not within the competence of a court of law and accordingly, "a court of law does not engage in an extra in futility" - SALAMI, PCA in the recent case of DR. JOHN OLUKAYODE FAYEMI & ANOR. V. OLUSEGUN ADEBAYO ONI & 7 ORS. (Unreported, Appeal No. CA/IL/EPT/GOV/I/10 delivered on the 5th day of October, 2010). See also the cases cited therein U.B.N.LTD. V. EDIONSERI (1988) 1 NSCC 603 at 610 and BHOJWANI V. BHOJWANI (1996) 7 SCNJ 16 at 20-21.

 In any case, the details and definition of the offence of armed robbery are clearly set out and specified in the ROBBERY AND FIREAMS (SPECIAL PROVISIONS) ACT and the provisions of the said enactment must be read and construed as a whole and not in piece meal, which the objection or issue raised by the appellant tends to imply. In particular in respect of the charge of armed robbery, with which the appellant was charged in the court below, section 1 and the interpretation section must be read together and they do not in the slightest way offend the provision of section 36(6)(a) of the Constitution of the Federal Republic of Nigeria, 1999.

 This issue is hereby resolved against the appellant.

VALIDITY OF THE TRIAL

 The appellant, as stated earlier, was tried with one Alonge Temitope who was also convicted by the trial court and sentenced accordingly. The said Alonge Temitope filed an appeal, against the judgment complained of, in APPEAL NO. CA/B/291C (A)/2008, which has been determined by this court. In that appeal, the issue of the validity of the trial, by failure to obtain a fresh plea, after amendment of the information, was raised. That issue is a fundamental jurisdictional matter which is apparent on the face of the record of appeal. Therefore, this issue will be considered and determined in this appeal.

 From the record of appeal, it is apparent that the information was amended by the trial court upon an oral application by the learned counsel for the prosecution. The record of proceeding in respect of the amendment in issue is as follows:

 "Ologun: I have an application. I want to seek the leave of the court to correct or amend the typographical error on the information on count 2 from all indication the intention of the person who drafted the charge is for to read section 1 (2)(a) and not (b) as shown. I submit that the court has power to so do.

 Sequent to section 163 of the criminal procedure taw cap 31 Laws of Ondo State 1978.

 Ojo: whilst preparing the address I realized it must be typographical error. Therefore I have no objection.

 Court: Order as prayed leave is hereby granted to the prosecution to amend count 2 of the information to read. Statement of offence Armed Robbery contrary to and punishable under section 1 (2) (a) of the Robbery and Firearms (special provisions) Act Cap 398 vol. XXII Laws of the Federation of Nigeria 1990.

 Court: Mr. Ojo, do you think fresh plea should be taken because of the amendment.

 Ojo: Since the amendment does not change the characters of the charge and the amendment is in respect of the form and not the substance of the charge, taking fresh plea of the accused persons is unnecessary." (Pages 59-70 of the record of appeal).

 It should be noted that the trial count immediately proceeded with the trial by hearing and taking the addresses of counsel - Mr. Ojo for the accused and Mr. Ologun for the prosecution, respectively.

The law is well settled that a charge can be validly amended even after final addresses of counsel. See DOMINIC PRINCENT & ANOR. V. THE STATE (2002) 18 NWLR (Pt. 798) 49 at 67-68. ln the instant case, the alteration to the information was effected even before the final addresses of counsel.

 From what transpired in the trial court, it is obvious, and there is no dispute on it, that after the amendment of the information, the plea of the accused/appellant was not retaken. The question is whether the failure to take a fresh plea after the amendment of the information would nullify the trial, conviction and sentence of the appellant by the court below?

Sections 163 and 164 (1) of the Criminal Procedure Law of Ondo State prescribe the procedure to follow when an information or a charge is altered.

 Those sections provide thus:

 "163. Any court may alter or add to a 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.

 164 (1)-lf a new charge is amended or alteration to the charge under the provisions of section 162 or 163, the court shall forthwith call upon the accused to plead thereto and to state whether he is ready to be tried on such charge or altered charge". (underlining mine)

 The use of the word "shall" in sections 163 and 164 (1) of the Criminal Procedure Law places a mandatory burden on the court to invite an accused person to take his plea again, once a charge or an information is altered or amended. The magnitude or quantum of the amendment involved and the reasons for the amendment are irrelevant.

 In the present case the learned trial Judge abandoned his statutory responsibility or duty and sought refuge in an avoidable opinion of learned counsel for the accused, and which opinion was volunteered at the prompting of the trial judge. With due respect, the learned trial Judge erroneously permitted herself to be persuaded by a legally erroneous opinion of the learned counsel for the accused/appellant that there was no need for the accused/appellant to take a fresh plea, after the amendment of the information, contrary to mandatory statutory provisions in that respect.

The law is settled that once information or a charge is altered or amended, the plea of the accused must be taken again.There are many decided cases on this issue. For example, in YOUNG UKAUWA UGURU V. THE STATE (2002) 9 NWLR (Pt.771)90 at 103, para. D, the Supreme Court, per KALGO, J.S.C. while interpreting section 163 of the Criminal Procedure Law of Eastern Nigeria, 1963 which is in pari materia with section 163 of the Criminal Procedure Law of Ondo State, 1978, held as follows:

 "This section empowers a court to alter, amend or add to any charge in any criminal case before it at any time before judgment is given in the case ............but .....that the amended charge be read out and explained to the accused." (underlining mine)

 In OKOSUN V. THE STATE (1988) 7 SCNJ 118, where a charge of robbery was amended during the trial and the trial continued without a fresh plea by the accused, the conviction and sentence of the accused was nullified by the Supreme Court. Similarly in OKEGBU V. THE STATE (3FSC) 14, the Federal Supreme Court allowed an appeal, and set aside the conviction of the accused for murder on the ground that the trial court did not comply with sections 163 and 164 (1) of the Criminal Procedure Act by failing to obtain a fresh plea from the accused after the first amendment. In that case, the charge was amended twice. After the first amendment, a fresh plea was not taken. There was fresh plea after the second amendment, yet the trial and conviction of the accused was declared null void and of no effect.

 In the present case, the trial court failed to read out and explain the amended information to the accused. It further failed to obtain a fresh plea from the accused because the counsel to the accused 'consented' that there was no need for the plea to be taken again. As stated earlier, the lower court was without power or jurisdiction to continue with the trial of the accused without a fresh plea from or by him, after the information was amended. The purported consent, or acquiescence by the counsel to the accused and the counsel for the State, respectively, would not confer competence on the trial court. See In re Aylmer, Ex parte Bischoffhiem (1887) L.J.Q.B.168, where Lord Esher, M.R., stated the principle as follows:

 "Parties cannot by consent give to the Court a power which it would not have without it".

 In the instant case, the trial court was in serious error by failing to comply with some fundamental conditions for a valid trial, namely - failure to read out and explain the amended information to the accused/appellant and to take a fresh plea from him, after the amendment.

 Without more, the trial, conviction and sentence of the appellant on an amended information without a fresh plea was fundamentally flawed, and, therefore, null and void.

 The resolution of this fundamental issue, in my opinion, disposes of the entire appeal and I do not find it necessary to determine the other issue raised by the appellant.

 In conclusion, I allow the appeal on the ground that the trial and conviction by the trial court was null and void for failure to comply with a very fundamental jurisdictional requirement or condition, as herein before adumbrated.

 Consequently, I make the following orders:-

 1. The judgment of the trial court delivered on the 10th day of December, 2007 is hereby set aside.

 2, The trial, conviction and sentencing of the accused/appellant are hereby nullified.

 3. There shall be a retrial of the appellant by another Judge of the High Court of Ondo State.