Criminal Litigation is probably one of the easiest courses which students of the Nigerian Law School are expected to study. This is probably the reason why most students would tend to under-estimate the course.
The topic: CHARGES, is probably the most significant topic and most frequent at the Bar Finals examinations.
It is, therefore, my intention to unearth the mysteries and difficulties of the topic especially considering that it surely always features in the Bar Finals.
A ‘Charge’ is a statement of offence in which a person is accused of before a court of law. it is, therefore, a formal allegation against a person a charge/count is usually contained in the ‘charge sheet’ carrying the heading of the court, parties and signatures.
Every ‘charge’ must contain or state the following:
- The name of the offender
- Date of the offence complained of
- Place of the commission of the offence (within the jurisdiction of the court)
- The offence committed and a brief description of the offence
- The name of the victim(s)
- The section of the law providing punishment and or defining the offence (the law against which the offence is in violation)
- The signature of the appropriate authority, whether the police, legal officer, magistrate etc.
The accused person must be sufficiently described by name, designatio or description as is neccessary to identify him. 147 CPA, 202 CPC. The charge need not contain the exact date of commission of an offence, it is sufficient if it is stated that it was committed ‘on or about’ a particular date or ‘sometime’ in a particular year. DURU v. POLICE. The charge must clearly spell out the particulars of the offence. Depending on jurisdiction, the ‘charge’ may be called ‘count’ i.e. under the CPA
RULES OF DRAFTING CHARGES
A. Rule against AMBIGUITY with NO EXCEPTIONS
Every charge must be clear enough to provide the accused person with sufficient particulars of the offence against him. The count/charge must, therefore, contain the following:
a. the name of the offender
b. place of commission of the offence
c. time/date of commission of the offence
d. the offence committed
e. the law prohibiting the act constituting the offence (the written law and section)
f. where necessary, the victim of the act constituting the offence.
There are no exceptions to this rule. A count that is found to be ambiguous nullifies the whole charge. However, for any such errors or omission in the count to be sufficient to nullify the charge, it must be established that such error or omission MISLED the accused. OGBOMOR v. STATE, 166CPA, 222CPC
B. Rule against DUPLICITY with 5 EXCEPTIONS.This rule only applies to singular COUNTS.
This rule only applies to singular COUNTS. Generally, not more than one offence shall be contained in a single count. AWOBUTU v. STATE
EXCEPTIONS to this rule are as follows:
1.Where it relates to GENERAL DEFICIENCY OF MONEY or monies misappropriated by one person at different times, such sums can be summed up together in one count. 152(2)CPA, 203CPC, 148(1)ACJL
2. Where the same offence is committed severally within the a SINGLE TRANSACTION e.g. stealing from different persons within the same transaction, such offences may be included in the same count.
NOTE: SAME TRANSACTION presupposes that
a. offences were committed within PROXIMITY OF TIME, or
b. the offences were a CONTINUITY OF ACTION; or
c. offences were for a COMMON PURPOSE / DESIGN. therefore: the offences must be so connected as to form same transaction. LAWSON v. sTATE. The offences must therefore be so connected as to form same transaction. LAWSON v. STATE.
3.where the offences are ALTERNATIVELY DEFINED, all may be included in the same count.
4.OVERT ACTS which on their own constitute different offences but when combined forms another offence may be summed up in a single count. for instance, overt acts necessary to establish treason.
5.STATUTORY EXCEPTIONS as provided in 2nd schedule to CPA, appendix B or CPC
C. Rule against MISJOINDER OF OFFENCES with 5 EXCEPTIONS.
This requires that offences must be contained in separate charge sheets. in other words, one charge/offence to a charge sheet. 156CPA, 212CPC.
The EXCEPTIONS to this rule include:
1.where several offences were committed by the same accused person within a period of 12 months, any three (3) of such offences may be included on the same charge sheet regardless of whether such offences were committed within the same transaction or not.
2.where different offences are committed within SAME TRANSACTION, all such offences may be charged together in one charge sheet. Unlike the 1st exception, there is no limit to the number of offences that may be charged.
3.where the complained act is prohibited by several statutes/laws–where an offender is charged with more than one count provided for under different laws, the court can only convict the accused of one of the counts. ELLIOT V. COP
4.acts when combined constitute an offence can be charged distinctly in the same charge sheet. e.g. several overt acts which constitute treason.
5.when it is not certain which particular offence has been committed, the accused may be charged with different offences so long as the facts support the said offences.
D. Rule against MISJOINDER OF OFFENDERS with 5 EXCEPTIONS.
– Every offender is expected to be charged in a different charge sheet
– There are however exceptions to this rule. These include:
1.persons accused of JOINTLY COMMITTING SAME OFFENCE(S)
2.persons accused of committing DIFFERENT OFFENCES but within the SAME TRANSACTION
3.persons accused of the same offence committed within SAME TRANSACTION
4.persons accused of aiding and abeting the commission of an offence may be charged together with persons charged with committing the actual act. Similarly, persons accussed with ‘attempting’ to commit an offence may be charged together with persons charged with actually committing the act.
5.persons accused of offences committed during a series of fights may be charged together in one charge sheet. This exception is however only exclusive to the north under the CPC.
EFFECT OF BREACH OF THE RULES OF DRAFTING CHARGES.
-the effect of the rule is to notify the accused personj of the offences and particulars of such offences
-errors on the charge that renders it ambigious would only nullify the proceedings if it shown to have misled the accused person. OGBOMOR v. STATE
-objection to an ambigious charge must be made immediately the charge is read to the accused.
-pleading to a defective charge is a submission to the court. OBAKPOLOR v. STATE
-once it can be shown that the defect occassioned a miscarriage of justice, any conviction would be liable to be set aside. AWOBUTU v. STATE
3.MISJOINDER OF OFFENDERS:
-an accused person who fails to apply to court to order seperate trials of accused persons will not be heard to complain on appeal. MAILAYI & ANO v. STATE
– any defective charge not ammended during the course of the trial and before judgment will be considered immaterial unless it is shown to have prejudiced the accused person.
– therefore, once pleaded to, any such defects are considered to have been waived by the accused. OBAKPOLOR v. STATE
– A defective charge must therefore be ammended before judgment. failure to so ammend is treated as a waiver.
AMMENDMENT OF A DEFECTIVE CHARGE.
– The trial based on a defective charge is not rendered void unless it can be shown to have prejudiced the accused person.
– The defective charge can be ammended at any time before judgment i.e. before plea is taken and after the plea is taken.
– alteration has a retrospective effect. ATTAH v. STATE
– Where the plea has not yet been taken:
a. the consent or leave of court is not needed in order to ammend the charge except if the criminal trial is one to begin by information as is the case for High Courts of the South
b. the court is not mandated to observe post ammendment procedure. ATTAH v. STATE
-Where the plea has already been taken:
GENERAL RULE- once a plea has been taken on a defective charge, it is considered as a waiver of any such defect
EXCEPTIONS- 1.where it is established that the defect misled the accused person
2.where the defect prejudiced the accused person leading to the miscarriage of justice
3.where the defect affects the jurisdiction of the court.
-where an accused person has pleaded to a defective charge, it can only be ammended with the leave of the court
-the prosecution must therefore apply for such leave either orally in the magistrates’ court or via motion on notice in the High Court
-the court may ammend a defective charge suo-moto in the following instances:
= a magistrate in the north who drafts the charge may ammend suo moto and may even substitute or draft a new charge so long as there are facts at the pre-trial stage that support the new charge.
= a magistrate in the south that ammends a defective charge suo-moto cannot exceed the bounds of the old charge. thus, cannot draft an entirely new charge
PROCEDURE UPON AMMENDMENT AFTER PLEA: 4 STAGES
1. Endorsement of an ammendment note – the order of ammendment shall be endorsed on the ammended charge to be substituted for the original charge.
2. Reading + explanation of the ammended charge – the new charge must be read over to the accused and a fresh plea taken in respect of the new charge
3. Adjournment where requested – this is a constitutional right that is guaranteed to entitle an accused to adequate facilities to prepare a defence
4. Recall or call of witnesses – court must permit an accused to recall or call new witnesses in reference to the ammended charge, it is also the duty of the court to inform an accused person not represented by counsel of these rights. ADISA v. AG WESTERN REGION
EFFECTS OF NON-COMPLIANCE WITH PROCEDURE
Failure to comply with procedure renders the trial null and void
The appellate court may however order a re-trial where there is sufficient and overwhelming evidence at the trial.
it is advisable for students to practice how to draft charges and how to spot defects in charges. This is a very potent examination area and the ability to draft charges taking into consideration the rules and exceptions is more than ideal.
Goodluck learned friends, cannot wait to see you in court.
Udofa, Kingsley David,