Forcible entry to lands and tenements--Offence contrary to 5 Ric. II c. 7. Fine imposed under Statute 21 J ac. I c. 15-Power of Court to amend Statement of Offence-Pleading to amended Statement of Offence-Sec#on 116 (2) of the Criminal Procedure Ordinance.

The accused was charged with Forcible Entry contrary to 5 Ric. I I c. 7. After the defence had closed, the Court amended the Information by substituting 21 Jac. 1 c. 1.5 for 5 Ric.II c. 7. The Jury found the appellant guilty and he was fined £3 or one month's imprisonment in default.

Held: That an amendment going to the root of the case could not be made after the defence had closed without injustice to the appellant.

Semble: That the Information could not have been amended as it was at any stage of the trial since an offence contrary to the Statute 21 J ac. 1 c. 15 is definitely a different offence from that created by the Statute 5 Ric, II c. 7.

Appeal allowed; conviction and sentence quashed and a judgment and verdict of acquittal entered.

Cases referred to :-

R. v. Tuttle (28 COJ( C.C. 610; 21 Cr. App. Rep. 85)-R. v. Hughes

(20 Cr. App. Rep. 4).

R. B. Marke for Appellant,

 A. S. Bodley for Crown.

The following joint judgment was delivered :-

KINGDON, C.]. NIGERIA., PETRIDES c.J. GOLD COAST AND LANE J.

The appellant was charged upon Information in the Supreme Court of Sierra Leone before the Chief Justice sitting with a jury with' , Forcible Entry, contrary to 5 Ric. II c. 7 ", and the particulars given of the alleged offence were :-

" Bravo H. Jones, on the 1st day of February, 1938, at Freetown in the Colony of Sierra Leone, with many other persons unknown, made a forcible entry into the apartment situate at 2 Charles Street tenanted by one Kpanneh Lewis, of which she was in occupation and expelled her from the possession thereof."

The appellant pleaded" Not guilty", evidence was led by the prosecution in support of the charge and at the close of the case for the prosecution Counsel for the appellant submitted that there was no case for him to answer on the ground, inter alia, that the Statute 5 Ric.1I c. 7 referred only to forcible entry into" lands and tenements," i.e. freehold property, and did not cover the case of forcible entry into leasehold property which was all that was alleged or attempted to' be proved by the prosecution in this case.

That submission was over-ruled and the appellant was called upon to make his defence to the charge as it stood, i.e. for an offence contra 5 Ric. II c. 7.

He did so, both giving evidence himself and calling witnesses.

After the defence had closed the Court amended the Information by substituting 21 Jac. 1 c. 15 for 5 Ric. II c. 7, Counsel for the defence making it clear that he was not a party to the amendment. Counsel for the Defence and the Prosecution then addressed the Court, the Judge summed up, and the Jury, by a majority found the appellant" guilty." He was sentenced to a fine of £3 or imprisonment for one month in default.

The appellant was never called upon to plead to the charge as amended, nor was he given any opportunity to make a defence to the charge as amended save by way of his Counsel's address.

He now appeals to this Court on the following grounds :-

1. That the learned Chief Justice was wrong in leaving the case to the Jury after submission by Counsel for the Defence that there was no case to answer under the charge as originally framed under 5 Wc. II. c. 7.

2. That the learned Chief Justice was wrong in allowing evidence for the defence to be given and for the case for the defence to be closed before deciding whether from the evidence of the prosecution there was a case to answer under 5 Ric. II c. 7.

3. That the learned Chief Justice was wrong in not asking the defendant to plead to the amended charge under 21 Jac. 1 c. 15.

4. That the Information as amended under 21 Jac. 1 c. 15 was bad in law as it did not show that the prosecutrix was the tenant of any person.

5. That the learned Chief Justice was wrong in substituting one charge for another after the close of the case for the defence and after a submission by Counsel for the defence that there was no case to go to the Jury under the charge of Forcible Entry 5 Ric. II c. 7.".

Grounds 1, 2, 3 and 5 are more or less on the same point and it is sufficient to deal specifically with ground 5 for the purpose of deciding this appeal.

The power to amend an Information under which the Court acted is conferred by Sect. 116 (2) of the Criminal Procedure Ordinance, 1932, (No. 38 of 1932) which reads as follows:-

" 116 (2) Where, before trial upon information or·-at any stage of such trial, it appears to the Court that the information is defective, the Court shall make such order for the amendment of the information as the Court thinks necessary to meet the circumstances of the case, unless having regard to the merits of the case, the required amendments cannot be made without injustice. All such amendments shall be made upon such terms as to the Court shall seem just."

The terms are substantially the same as those of sect. 5 (1) of the Imperial Act entitled" The Indictments Act, ] 915," the provisions of which came under review in England in 1929 by the Court of Criminal Appeal in the case of R. ~'. Tuttle (28 Cox ce. 610; 45 T.L.R. 359; 21 Cr. App. Rep. 85). In the course of his judgment in that case Avory J. said:-

•• On the first point, the power of the Court-of the learned Judge in this instance-to amend the indictment depends upon the provisions of section I) of the Indictments Act of 1915, which provides: •• Where before trial or at any stage of a trial it appears to the Court that the indictment is defective, the Court shall make such order for the amendment of the indictment as the Court thinks necessary to meet the circumstances of the case, unless having regard to the merits of the case the required amendment cannot be made without injustice. The first question here is whether this indictment was defective  within the meaning of that statute. We are clearly of opinion that the indict­ment alleging that this offence had been committed on March 9, 1916, and alleging that it was an offence against the Larceny Act of 1916, which in fact did not come into force until January I, 1917, was defective on its face; and being so defective the only other question is whether the amendment which was made charging the offence to have been committed against a section of the Act which was then in force, namely, on March 9,1916, was an amendment which could be made without injustice to the accused. When it appears, as it does, that the offence under the earlier Act of 1861 was in the same words as the offence under the Consolidation Act of 1916, it is clear that the appellant could not have been prejudiced, and no injustice could have been done to any defence which he had, by this amendment.

It is not like the case which was suggested during the argument of an indictment being amended so as to charge a person with an offence different from that for which he has been committed for trial. Here the offence was precisely the same, namely, the fraudulent appropriation by him as a trustee of trust money."

The_ penultimate sentence of this quotation suggests that it is not competent under the sub-section to amend an indictment so as to charge a person with an offence different from that for which he has been committed for trial (and presumably indicted). This is confirmed by reference to the case of Rex v. Hughes (20 Cr. App. Rep. p. 4) which clearly established that the amendment must be an amendment of a defect in form and must not amount to an alteration and revision of the substance of the charge. This being so, it seems that the information iI) the present case could not have been amended as it was at any stage at all of the trial since an offence contrary to the Statute 21 Jac. 1 c. 15 (if, indeed, that Statute creates any offence at all) is definitely a different offence from that created by the Statute 5 Ric. II c. 7.

Moreover we are dearly of opinion that an amendment such as this going to the root of the whole case could not be made at the late stage at which it was, namely after the close of the defence, without injustice to the appellant. He had been charged with a definite offence against a particular Statute, he had submitted a complete answer to that charge and was entitled to an acquittal upon it. Instead of being accorded that acquittal he suddenly found himself convicted of an offence different from that with which not only he and his Counsel but also the prosecution and the jury had up to the moment of amendment been concerned, without himself being given any opportunity of making a defence or his Counsel having adequate time or opportunity to consider the implications of the amendment or the possible defences by which the new charge might be met.

It was, indeed, impossible for the Trial Court, and is impossible for this Court, to know what defence might have been put forward against the amended charge had adequate time and opportunity been afforded. Ground 4 of the grounds of Appeal already quoted suggests one line of defence. Another is suggested by an examination of the exact wording of the Statute 21 Jac. 1 c. 15, which, though it speaks of an indictment, does not itself create any offence for which it imposes a penalty; so that the principle that a penal statute must be construed strictly and that, where the legislature intends to create a punishable olience, it must do so in unequivocal language might well he invoked in support of a contention that no penalty can he imposed upon an indictment simple under the Statute 21 Jac. 1 c. 15.

It is true that early editions of Archbold give a form of indictment under the statute, but it is perhaps significant that such form is not followed, as is the form of indictment under 5 Ric. II c. 7, by words showing the penalty" Imprisonment, and ransom at the Queen's will."

We do not feel called upon to decide the difficult questions which might have arisen had the appellant had adequate opportunity to make his defence to the amended charge. It is sufficient that we are satisfied that the amendment ought not to have been made and that the making of it, more particularly the making of it after the defence was closed, operated as a real and substantial injustice, and for this reason the conviction cannot stand.

The appeal is allowed the conviction and sentence are quashed and it is directed that a judgment and verdict of acquittal be entered.