A charge is simply a document which contains the statement and particulars of offence(s) with which an accused person (a defendant) is tried before a court of law.
Section 36(6)(a) CFRN; Timothy v FRN (2008) All FWLR (pt 402) 1136.
The main purpose of charge is to give accused notice of the case against him: Odeh v FRN (2008) FWLR (Pt 424) 1590.
The forms are:
- Heading
- Reference number
- Parties
- Preamble
- Counts (charges); and
- Date and Signature of the drafting authority
The Contents of a Charge (Count)
A charge must contain the following particulars:
- Name of the accused persons
- Date (and time as the case may be) of the commission of the offence
- Place of the commission of the offence
- Statement of the offence committed, that is, the offence which the accused is charged with
- Name of the person and/or thing against whom or in respect of which offence was committed;
The written law and section of the law against which the offence is said to have been committed;
Signature of the person drafting the charge.
GUIDELINES FOR DRAFTING CRIMINAL CHARGES
Rule against ambiguity
Rule against duplicity
Rule against misjoinder of offenders
Rule against misjoinder of offences
1. RULE AGAINST AMBIGUITY
This rule provides that a charge must be clear enough as to give the defendant person adequate notice of the offence with which he is charged. Consequently, the rule attaches itself more particularly on the Count or, each of the Counts contained in the charge sheet or information. A good charge free from ambiguity will reflect, in this order, the following: the name of the defendant; date of commission of the offence place of commission of the offence, description of the offence by the name and the law under which the offence will be punished.
The gamut of this rule is to give a defendant notice of the charge against him. Although, some errors on the part of the prosecutor will not essentially invalidate the charge or lead the court to set aside any conviction, based on the charge. Generally, the court does not regard any omission or errors in the charge as material except the defendant was in fact misled by such error or omission.
It is important to state that an objection to a defective charge should be made immediately after the charge is read over and explained to defendant because pleading to such a charge is a submission to jurisdiction, if the defect does not deprive the court of its jurisdiction.
AG Federation v Isong (1986) 1 QLRN 75 a charge framed was held to be defective for failing to state the penalty section of the statute of which the accused was said to have contravened.
Also, in Ogbomor v. The State (1985) 2 S. C 289, the accused person was charged before the Robbery and Firearms tribunal with armed robbery contrary to the Robbery and Firearms Act 1970 instead of the Robbery and Firearms (Special Provisions) Act 1970. He was convicted. On appeal against conviction, it was contended that the accused was charged for an offence unknown to law because there is no statute known as the Robbery and Firearms Act 1970. The Supreme Court held that mere mis-description of the Robbery and Firearms Act 1970 was minor and technical as the accused knew under which statute he was being tried. Therefore the accused was not prejudiced by the defect in the charge and the appeal was dismissed.
Read: The Operative Parts of a Deed
2. RULE Against Duplicity
This rule addresses the count in the charge as in the case of ambiguity. What the rule however forbids is that no count shall contain more than one offence except in permitted circumstances provided by statute. A charge is therefore bad for duplicity if it contains more than one offence. A defendant must be charged for each of the offences committed by him separately on the charge sheet or information. A charge that is bad for duplicity does not necessarily invalidate the charge or the trial except it has occasioned a miscarriage of justice.
A charge is thus bad for ambiguity where the particulars are omitted, wrongly stated or even stated in a disorderly manner.
In Okeke v Inspector General of Police (1965) 2 All NLR 81 the Appellant was charged and convicted of two offences. In the judgment, the trial Magistrate stated that the accused person was charged under “some sections of the Criminal Acts.” On appeal, it was contended that this contravened the provisions of Section 151 (3) of the CPL, and that there was no law in existence known as the Criminal Acts. The contention was upheld and the conviction set aside.
Exceptions to the Rule
(a) Where the offences relate to general deficiency of money, committed over a period of time, the money misappropriated can be summed together and contained in a single count. Also note that one can only do this if all of the money stolen is owned by one person.
(b) Using statutory forms: Some of the forms allow for the joining of two offences together i.e. offence of housebreaking burglary can be joined with that of stealing where a person entered into a dwelling house unlawfully and stole there.
(c) Offences defined in the alternative can be contained alternatively, in a single count. It is also permissible to include in a count all the other acts allegedly done by an defendant as manifestation of his intention to commit treason or treasonable felony.
(d) Overt acts of treason and treasonable felonies-everything done in the planning and prosecution may be stated in a count.
(e) when a defendant commits identical offences in a single transaction, e.g. against several persons at the same time, this can be stated in a single count.
3. Rule Against MISJOINDER OF Offenders
This rule forbids joining offenders together in a cause or matter before the court. Thus, generally, only a defendant should be charged in the charge sheet, for the offence(s) committed by him. There are instances however in which it is permissible to join and try more than one defendant together. The exceptions:
(a) When more persons than one are defendant of the same offence, they may be charged and tried together.
(b) When more than one person commits different offences in the course of the same transaction, they may be charged and tried together. For the circumstances in which persons can be said to have committed different offences in the course of the same transaction. In considering same transaction the test must always be, do these acts considered together portray any CONTINUITY OF PURPOSE? (Therefore one must look at proximity of place, time and transaction.)
When a person is accused of committing an offence and another of abetting or being accessory to or for attempting to commit such offence, the two of them may be charged together.
When a person is defendant of any offence of theft, Criminal misappropriation, Criminal breach of trust and another of receiving or retaining or assisting in the disposal or concealment of the subject matter of such offence, they may be charged and tried together.
4. RULE Against MISJOINDER of Offences
This rule has to do with the count as against the charge sheet itself. any 3 offences committed by a person within 12months any number of different offences committed by a person in the course of the same transactioncommission of offence under different laws-but with the same act or omission-court cannot convict under both lawsany number of the same type of offence or offence of similar character committed by a person. in Okojie & Ors v. C.O.P (1961) WRNLR 91, the five accused persons (police officers) arrested the complainant under a warrant of arrest and took him to the court hall. At the court hall, all the accused took part in the assault on the complainant. The first accused hit the complainant on the head, the second accused sat on him, the third accused kicked him on the chest, the fourth accused blocked the entrance to the court hall to prevent people from entering to rescue the complainant, and the fifth accused slapped the complainant in the face. The accused persons were charged and convicted jointly in the same charge sheet and tried for the offence of assault occasioning harm. On appeal against conviction, it was contended inter alia, that the accused persons ought to have been charged separately, and that the charge sheet on which they were arraigned was bad for misjoinder of offenders. It dismissing the appeal, the appellate court cited section 155 of the CPL, and held that as the appellants jointly committed the assault, they were properly charged together.
Generally, every distinct offence with which any person is defendant shall be charged separately. There are exceptions to this rule.
The law and the facts have been and should be taken into account in deciding whether offences are similar or dissimilar in character.
There must also exist a series of such offences and in this regard, nexus is a feature of similarity which in all circumstances of the case enables the offences to be described as a series. Establishing the similarity is not enough but sufficient nexus should be shown to make them a series.
WHO HAS THE AUTHORITY TO AMEND
Prosecution can make amendment with leave of the court
The Court can suo moto also amend
FAILURE TO AMEND A DEFECTIVE CHARGE:
A defective charge is one that runs short of the principles of drafting, and trial on a defective charge does not render the trial void, the court merely considers the effect of the defective nature of the charge on the defendants. Thus where the effect is fundamental, the court will set such conviction aside.
Comments
BOREX5 October 2020 at 03:50
Hmmmm...
REPLY
Post a Comment
Popular Posts
ALIENATION OF RIGHT OF OCCUPANCY IN NIGERIA
Alienation of right of occupancy The holder of a statutory or customary right of occupancy may transfer, mortgage or otherwise dispose of the right of occupancy subject to the consent requirement. This requirement permits for better control and enhances security of title. It also helps in keeping proper records of land administration. Section 22 of the Act provides: It shall not be lawful for the holder of a statutory right of occupancy granted by the Governor to alienate his right of occupancy or any part thereof by assignment, mortgage, transfer of possession, sublease or otherwise however without the consent of the Governor first had and obtained. Understanding of section 22 is not without controversy. Professor Omotola is of the view that consent is only required for the right of occupancy actually granted under section 5, and not the deemed granted land under section 34. The scope of section 22 came up for determination in the case of Savannah Bank Ltd v Ajilo [1987] 2
CHARITABLE TRUSTS : CLASSIFICATION IN NIGERIA
CHARITABLE TRUSTS : CLASSIFICATION trusts are trusts that are made for the fulfillment of purpose that is for the public benefit and which falls within purposes that are described as charitable by the law. The classification of what is described as charitable was first made in the preamble to the statute of Elizabeth (43 Eliz. 1, c. 4, 1601). The list included gifts or trusts for : the relief of the aged , impotent and poor people, the maintenance of sick and maimed soldiers and sailors, the mainteneance of schools and learning, free schools and scholars in universities, the repair of bridges, ports, churches and highways, the education of orphans, the support of young tradesmen and persons decayed. The amble of the statute has since been repealed but the spirit of the statute is sometimes used to decide if a trust is
Post a Comment