By Feima Sesay
Justice Adrian Fisher presiding judge has refused the amendment on the indictment of the former Skye Bank Manager Ikudolaje Bola Nicol made by the state prosecution for the accused to be tried for Manslaughter instead of murder.
On the 27th February 2024, lawyer Y.I Sesay for the prosecution, sought an application for an amendment to the indictment on the grounds that it was defective.
The application was objected to by Lawyer Rowland Wright counsel for the accused.
Lawyer Sesay cited section, 48 (1) and (3) of the Criminal Procedure Act No 32 1965. He submitted that based on the circumstances of the case, and the evidence disclosed in the deposition, a charge of murder given the circumstances of the case, would render the indictment defective.
He further submitted that the amendment would not create any injustice to the accused, adding that they were surprised that the defence had raised an objection to the application.
“The offence of murder is similar to manslaughter but for the state of mind. He admitted that even where directions are given, the jury can still convict him of an offence of manslaughter. The accused was investigated on allegations of murder,” the state Lawyer submitted.
The application was objected to by defense Lawyer Wright, counsel for the accused, he submitted that in the first instance, the prosecution has already done an injustice to the accused by their actions and the application by the prosecution amounts to a continuation of the injustice meted out on the accused.
He added that at the end of the preliminary investigation, the prosecutions were fully aware of the strength of their case and the evidence adduced. He said they had arraigned him on a charge of murder and It’s necessary for the defence to make an application to the Supreme Court in which gave an order that the accused be tried by judge and jury.
Lawyer Wright continued that the prosecutions have behaved in a callous manner, having kept the accused in detention all this while only to now change their mind, adding that what the prosecution is proposing is not an amendment but a substitution.
“The indictment is not defective in any way. Most importantly there is no defect on the face of the indictment. The prosecution was suggesting that the indictment was defective and if the evidence does not fit in with the indictment let them come back,” the defence counsel pointed out.
Justice Fisher in his ruling stated that, ‘Having reviewed the indictment, the court must make a determination as to whether the indictment is defective for the reasons given by lawyer Sesay and has reviewed the indictment in its entirety. Therefore, I see no overt defect on the face of it.”
He said where an indictment substantially complies in every respect with the provision of rule 3(5)of the schedule to the Criminal Procedure Act 1965, the question of a bad or defective indictment does not apply.
“To my mind, what the prosecution is seeking to do by this application is to deprive the accused of the protection afforded to him by the Supreme Court, whilst taking advantage of a technicality which allows the prosecution to seek a judge alone trial, whilst ignoring the specific and clear orders of the Supreme Court.” Justice Adrian Fisher said, adding that “Such an amendment could have been sought at a much earlier time if they were desirous of doing so. The accused if convicted, faces a substantial period of imprisonment under the Abolition of the death penalty Act 2021 and under the common law, life imprisonment is the maximum sentence.
Delays are inimical to the interest of justice. I am satisfied that any trial that proceeds without compliance with the decision of the Supreme Court would be unfair as the Supreme Court recognizes in its ruling and such a Course of conduct would be contrary to section 23(1) of the 1991 Constitution.”
However, Justice Adrian Fisher ruled that the application made by the state counsel, Y. I Sesay for the Murder charge to be replaced with Manslaughter was refused.
The matter was adjourned to Tuesday 12th March 2024 for further hearing.
