Meaning of charge
Note definition in s.494 ACJA
It says statement of offence or statement of offences with which a defendant is charged in a trial whether by way of summary trial or trial by way of information.
Definition of Summary trial and trial on information? - in s 494 ACJA, Alameiyeseigha v FRN (2006) 16 NWLR (PT.1004); UWAZURUIKE V AG FED
What is a charge?
A document containing the statement and particulars of offence which a person is accused and tried in a court of law. – s.2(1) CPL; S1 CPC;S.371 ACJL;494 ACJA.
The CPL seems to limit a charge to a summary trial, but s 494 of ACJA expands on that definition. The CPCL makes references to head of charges. Its more of a description rather than a definition.
S 371 ACJL
Summary trial
Summary trials are short and fast, disposed in a prompt and simple way.
Immediate action without long procedure
It is not all the evidence to be relied on by the prosecution that is made available
Information
An information is a comprehensive document which guides the court, the prosecution and the accused during the trial.
Content of information:
- The charge, statement of offence and particulars of the offence
- Proof of evidence-summary of statement of the witnesses for the prosecution and full statement of the accused
- List of witnesses, list of exhibits to be tendered. See s.334 CPL; S251(1) ACJL; 379 ACJA
Note: power of prosecution to file additional evidence. S251 (3) ACJL; 379(2) ACJA
When there are witnesses who are not defendants to the case but make statement to the police, in the proof of statement their statements are summarised. But when it has to do with the defendant itself it’s the entire statement itself that’s put before the court.
Who can file a charge?
Mag court south – police
Magistrate court north – magistrate
High court – AG
Who can file information?
High court south, North or FCT Abuja
Power of police to prosecute - FRN v Osahon, s 268(2) ACJA
Prosecutorial authority
- The state – this is used in the high court in the south other than Lagos and high courts in the north other than Abuja.
- Commissioner of police – this is used in all magistrate courts
- Inspector general of police – the ACJA introduced this for federal offences that are prosecuted within the magistrate court
- Federal republic of Nigeria – this is used in the federal high court and high court of FCT, Abuja
- The state of Lagos – Lagos state
s.249 ACJL; 268(2)(3) ACJA
Any difference between prosecutorial authority and drafting authority?
Note the distinction between EMELOGU V THE STATE; ANYEBE V STATE – this was purely a federal offence, for a state AG to prosecute the offence he must have a fiat from the AG of the federation.
S174 of the constitution
LAW OFFICER
Who is a law officer? –Awobutu v state.
How can a law officer sign? Must he indicate the AG as final authority?
Note the delegation of powers to officers in AG ‘s dept – s.174 (1); 211 (1), 1999 constitution; s.252 (1) ACJL; 268 (3), 494 (1) ACJA
Ibrahim v state; state v Okpegboro
USE OF STATUTORY FORMS
FORM OF THE CHARGE
Note the relevant court
- Heading
- North or south
- Information or charge
- Statement of offence/particulars of offence
- Date and signature
Heading
Form of magistrate court in the south
IN THE MAGISTRATES’ COURT OF ENUGU STATE
IN THE ENUGU MAGISTERIAL DISTRICT
HOLDEN AT ENUGU
Form of magistrate in the north
IN THE MAGISTRATES’ COURT OF KANO STATE
IN THE KANO MAGISTERIAL DISTRICT
HOLDEN AT KANO
Form of magistrate in FCT
IN THE MAGISTRATES’ COURT OF THE FEDERAL CAPITAL TERRITORY
IN THE WUSE MAGISTERIAL DISTRICT
HOLDEN AT WUSE
Reference number
South – it’s referred to as charge number
North – it’s referred to as a case number
Form of magistrate court in the south
IN THE MAGISTRATES’ COURT OF ENUGU STATE
IN THE ENUGU MAGISTERIAL DISTRICT
HOLDEN AT ENUGU
CHARGE NO:
Form of magistrate in the north
IN THE MAGISTRATES’ COURT OF KANO STATE
IN THE KANO MAGISTERIAL DISTRICT
HOLDEN AT KANO
CASE NO:
Form of magistrate in FCT – note that FCT is taken to be in the middle so it says charge no.
IN THE MAGISTRATES’ COURT OF THE FEDERAL CAPITAL TERRITORY
IN THE WUSE MAGISTERIAL DISTRICT
HOLDEN AT WUSE
CHARGE NO:
Parties
In the south
IN THE MAGISTRATES’ COURT OF ENUGU STATE
IN THE ENUGU MAGISTERIAL DISTRICT
HOLDEN AT ENUGU
CHARGE NO:
BETWEEN
COMMISSIONER OF POLICE COMPLAINANT
AND
SUPREME UNUKEGWO DEFENDANT
In the FCT
IN THE MAGISTRATES’ COURT OF THE FEDERAL CAPITAL TERRITORY
IN THE WUSE MAGISTERIAL DISTRICT
HOLDEN AT WUSE
CHARGE NO:
BETWEEN
COMMISSIONER OF POLICE COMPLAINANT
AND
SUPREME UNUKEGWO DEFENDANT
Form of magistrate in the north
IN THE MAGISTRATES’ COURT OF KANO STATE
IN THE KANO MAGISTERIAL DISTRICT
HOLDEN AT KANO
CASE NO:
BETWEEEN
COMMISSIONER OF POLICE COMPLAINANT
AND
SUPREME UNUKEGWO ACCUSED
Body of the charge
If there are more than one offence disclosed in the magistrate court in the south you have count one, count two, count three etc. if its only one offence you don’t need to make mention of count, you just go ahead and draft
Magistrate courts of FCT you have count one, count two, count three etc, there is no preamble.
In the north you say charge one, charge two, charge three.
In the magistrate court in the FCT and north there is something called a three-paragraph drafting, which consists of
- Introductory paragraph – this introduces the drafting magistrate. “I Oyewole Tinuade, chief magistrate Grade I, charge you
- The body
- The directional paragraph
See draftof charges assignment
Here the magistrate signs the charge.
In the magistrate court in the south it is signed by the police officer, the rank has to be stated
High court (south) & FCT
- Preamble
- Counts
- Statement of offences
- Particulars of offences
- In FCT, information to be used
- Date and signature by drafting authority
IN THE HIGH COURT OF LAGOS STATE
IN THE LAGOS JUDICIAL DIVISON
HOLDEN AT LAGOS
CHARGE NO:
BETWEEN
THE STATE OF LAGOS COMPLAINANT
AND
EDWARD OSIKE DEFENDANT
At the session holden at Lagos State on the …..day of ….2017 the court is informed by the Attorney-General on behalf of the State that:
BENSON BROWN
is charged with the following offences:
STATEMENT OF OFFENCE
PARTICULARS OF OFFENCE
IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY ABUJA
IN THE WUSE JUDICIAL DIVISION
HOLDEN AT WUSE
CHARGE NO:
BETWEEN
FEDERAL REPUBLIC OF NIGERIA COMPLAINANT
AND
EDWARD BELLO DEFENDANT
At the session of the High Court of Federal capital territory Abuja holden at Wuse on the …..day of ….2017 the court is informed by the Attorney-General of the federation on behalf of the federal republic of Nigeria that:
BENSON BROWN
is charged with the following offences:
STATEMENT OF OFFENCE
PARTICULARS OF OFFENCE
IN THE HIGH COURT OF KANO STATE
IN THE KANO JUDICIAL DIVISION
HOLDEN AT KANO
CASE NO:
BETWEEN
THE STATE COMPLAINANT
AND
EDWARD OSIKE ACCUSED
We use the state v EdwardOsike for the north. The use of “and” is not wrong but the proper one is the use of “v” .
Preamble is only used for high courts in the south and FCT. There is now an information in the FCT so there must be a preamble but there is none in the north because it is an information by way of a charge so it is brought by way of a charge.
“At the session holden at Lagos State on the …..day of ….2017 the court is informed by the Attorney-General on behalf of the State that:
BENSON BROWN
is charged with the following offences:”
see 337 CPL
In the south and FCT the heads of offences are divided into statement of offence and particulars of offence but in the north this isn’t the case because its an information by way of a charge. So there’s no statement of offence and particulars of offence. Never bring particulars of offence before statement of offence. Its statement first before particulars. Note that COUNT must be written in capital letters.
SIGNATURE
Signature, name, rank , in the FCT it would be AG of the federation , for other states it would be the AG of the state.
Drafting in The federal high court
- Applicable law is the ACJA – S33(1) FHC act
- Summary trial in the FHC – s.33(2)
- Applicable law to summary trial in the ACJA is s.193
- Charges to be as in the magistrate court in the south – 2nd schedule
- Drafting in FHC not by way of information
IN THE FEDERAL HIGH COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
CHARGE NO
BETWEEN
THE FEDERAL REPUBLIC OF NIGERIA COMPLAINANT
AND
EDWARD OSIKE DEFENDANT
There is no preamble here, neither is there statement of offence and particulars of offence. It simply makes use of count.
COUNT 1
COUNT 2
DATED 31ST DAY OF DECEMBER 2017
………………..
Supreme Unukegwo
Attorney- general of the Federation
The second schedule of the CPL drafts the body of a magistrate while the third schedule is for the high court.
Note that the directional paragraph doesn’t come after the every head of charge it comes after all the heads of charges, it is the last paragraph in relation to all the heads of charges.
See the second schedule of the ACJA
Language used
- Ordinary language, no technical terms except necessary- this is the first rule, that your drafting must be in ordinary language
- Terms used to be in the sense attached to them in the statute creating the offence
- 152(3)(4),153,154 CPL
- 148,149,150 ACJL; 378(1)(C) ACJA
- 201,202 CPC
Rules guiding drafting of charges
- Rule against ambiguity
- Rule against duplicity
- Rule against misjoinder of offences
- Rule against misjoinder of offenders
Rule against ambiguity
- The charge must be clear enough as to give the accused/defendant adequate notice of the offence with which he is charged
- The rule is related to individual count not the entire charge sheet or information
- No exception
- 151,152,153 CPL; 201 & 202 CPC; 147,148 &149 ACJL
A – accused
D – date. Note: don’t use on or about, the date is the date. If it’s a crime of conspiracy you can use on or about because it might not have been that they agreed.Time is not a relevant or material fact that needs to be supplied unless it’s a case of housebreaking or burglary.
P – place of commission of the offence. You mention the place and the magisterial district or judicial division.
O – offence
P – person against whom it is committed
S – section of the law offence punished
ADPOPS – following this sequence a person can’t be ambiguous
Rule against duplicity
Meaning: no count or head of charge to contain more than one offence except in permitted circumstances. S 209 ACJA
Note exception:
- General deficiency of money over a period of time but to one person and not for property s.152(2) CPL;203 CPC;148(2)ACJL;197 ACJA. So you don’t aggregate property
- OVERT acts in treason – s 37,38 & 41 CC
- Adoption of statutory Forms s.150, 463 CPL;200 CPC;146 & 353 ACJL;193,377 & 378 (4) ACJA Form16, 3rd schedule; 2nd schedule ACJL form 15 ACJA – willie john v state
- Offences defined in alternatives. s 356(2); 406 CC; s.50 CRIMINAL LAW LAGOS ; 154(5)(a) CPL, 150(5)(a) ACJL
Particulars of offence in the high court doesn’t make use of ‘that you’
Rule against misjoinder of offenders
Meaning: only offenders in a matter that should be joined as accused
Note the guiding principle on joinder of accused person or exception: s 155 CPL, s.151 ACJL, 221 CPC; 208 ACJA
- Where more than one person committed same offence – s 7,8,9 CC
- When more than one person commit different offences in the course of the same transaction
- Haruna and 40 ors v state 1972 ALL NLR 738
Rule against misjoinder of offences
- Every distinct offence for which any person is accused shall be charged separately
Exceptions
- Offences committed within one year – s 157 (1) CPL; 153 (1) ACJL; 209 ACJA (3 to be selected and charged irrespective of whether same person or of same or similar DAU v KANO N.A
- Offences committed in the course of the same transaction – s 158 CPL;153 ACJL; 214 (4)
Raising objection to a charge
When to raise? – When the plea is to be taken after reading the charge .s167 CPL;
Note the position in Lagos – s.260 (2) ACJL; 221 ACJA
Note: IKOMI V STATE (1986) 3 NWLR (PT.28) 340; OHIOVORIOLE V STATE (2003) 2 NWLR (pt.803) 176, EGBE V STATE 1980 NCR 341; ABACHA V STATE (2002) 11 NWLR (PT.779) 497
NOTE: objection as to jurisdiction
Fundamental objection
Non-existent law (law not in existence at the time of commission of the offence)….
Under s 221 ACJA any objection taken to the rules of drafting will not be taken or entertained regardless of the time that the objection is taken, so any objection to erroneous or imperfect charge will not be taken or entertained irrespective of the nature of the imperfection of the charge. If the objection is to anything else like jurisdiction it would be taken.
In Lagos by virtue of s 260 (2) ACJL an objection can be taken on imperfect or erroneous charge. s 158 of ACJL does not apply to s 260(2) as to when to take objection. When s158 is taken together with s 159 the position is clearer. The effect of s 159 is that although the objection may be taken the court may not even rule on it. The objection would be pronounced during the final judgment. The relevant sections are a 158 and s159 ACJL. S 260(2) is more relevant for proof of evidence
In CPL jurisdiction the objection should be submitted before the taking of plea.
Amendment of charges
Who can amend?
- The person who drafted the charge. Note the position in the north where magistrate drafts and south where police drafts
- The court in the north where magistrate drafts
The state v chief Mag Aboh-Mbaise, ex parte Onukwe 1978 1 LRN 316
- The court may suomotu amend if no injustice will result especially if post amendment procedure complied with - Uket v FRN
There is no post amendment procedure to be done if the amendment is done before arraignment. However where amendment is taken after arraignment- so the accused/defendant has taken a plea concerning that former charge, the leave of court must be sought before it can be amended and the post amendment procedure has to be followed. It is only in post arraignment that there are procedures, but pre-arraignment there are no post amendment procedures.
Procedure after amendment
- New charge to be read and explained to accused – fresh plea s 155 (2) ACJL, 208(2) CPC, 163 & 164 CPL;217 (1) ACJA
- The court to ask if ready to be tried on the new charge. s 164 (1) CPL; 156 (1) ACJL; 218 ACJA
- Adjournment to either prosecution or accused. s 164 CPL; 156 (2)&(3) ACJL; 209 & 210 CPC
- The court shall endorse a note of the amendment s156(4) ACJL
- The prosecutor or accused shall be allowed to recall or re-summon any witnesses
- Note the obligation of the court to inform the accused of this option if unrepresented by counsel but if represented there is no obligation
NOTE: must be related to the original charge
Pre arraignment amendment may require fresh leave to prefer the new charge in the high court (except Lagos and under ACJA) if in nature of substitution.
Housebreaking and Rape
Ethical issues in drafting charges
Rule 37(4), (5) RPC