On the condition for the applicability of Section 218 Criminal Procedure Code learned Counsel set out
the ingredients of the offences of rape under Section 283 and act of gross indecency under Section 285
and submitted that in convicting the Appellant for the offence of act of gross indecency, the learned trial
Judge did not apply the red pencil rule laid down in TORHAMBA VS COMMISSIONER OF POLICE
32
(1956) NRNLR 87 AT 94, for if he had done so, he would have realized that the residue of the remaining
ingredients of rape after deleting the two unproved ingredients, do not constitute or form the
particulars of the offence of gross indecency. A lesser offence for which an accused can be convicted is
one that particulars are carved out of the particulars of the offence charged. He relied on the case of
OKWUWA VS THE QUEEN (1965) NMLR 53 AT 55 and QUEEN VS NWOGUGUA AGUMADU (1963) 1 ALL
NLR 203.
The failure of the learned trial Judge to frame a new charge and invite the Appellant to take his plea for
the offence of act of gross indecency after discharging and acquitting him of the offence of rape, learned
Counsel profusely argued, contravened the cardinal principle of Natural Justice and the provisions of
Section 36 (4) (5) (6) and (9) of the 1999 Constitution of the Federal Republic of Nigeria (as amended)
thereby infringing on the Appellants right to fair hearing, citing in support the cases of ADEYEMI VS THE
STATE (2015) ALL FWLR (PT. 790) 1201, 1209 B - D and ALABI VS NATIONAL ASSEMBLY (2015) ALL FWLR
(PT. 803) 1830 AT 1855 B
33
C.
He also submitted that the said Sections 217 and 218 of the Criminal Procedure Code which empower a
trial Court to convict an accused person without any charge, to the extent of their inconsistency with the
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents