LEGAL PRINCIPLE: CRIMINAL PROCEDURE – Substitution of Offence – No Infringement of Fair Hearing
PRINCIPLE STATEMENT
The exercise of power under Section 217 of the Criminal Procedure Code to substitute a conviction does not infringe fair hearing if the evidence adduced gave notice of the offence to the accused.
RATIO DECIDENDI (SOURCE)
Per Ogwuegbu, JSC, in Onogwu v. The State (1995) NLC-2861991(SC) at p. 13; Paras D–E.
"The appellant cannot complain of absence of fair hearing in the exercise by the appellate High Court of the powers conferred on it in Section 217 of the Criminal Procedure Code having regard to the evidence adduced before the learned trial Magistrate which gave notice of criminal breach of trust to the appellant."
EXPLANATION / SCOPE
Substitution of conviction under Section 217 does not violate fair hearing if the evidence put the accused on notice. The accused must have had the opportunity to defend against the facts. The principle applies to both trial and appellate substitution. The accused cannot claim surprise if the evidence clearly showed the offence. The rule balances procedural efficiency with fair hearing. The court will examine whether the accused was prejudiced. The principle promotes justice. The accused’s right to fair hearing is preserved if the evidence gave notice.