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Charge in Criminal Procedure: Basic Rules

Table of Contents

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INTRODUCTION TO CRIMINAL CHARGES

A charge sheet is a document before the court which informs the court and the accused person of the allegations leveled against the accused by the prosecution. It is a document with which an accused person is arraigned.

A charge is an accusation of criminal involvement by someone as noted by Lawcornel

Charge in Criminal procedureFORMS OF A CHARGE SHEET

Charge sheet takes different forms, depending on whether it is used in the North or South.

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The form a charge sheet may take also depends on which court it is to be used: whether magistrate court, State High Court or Federal High Court.

MAGISTRATE COURT IN THE SOUTH AND FEDERAL HIGH COURT.

A charge Sheet contains:
a. Heading of the court
b. The charge No.
c. The names of the parties
d. The body of the charge/counts of a charge which usually contain the statement of offence and particulars of offence.
e. Date and Signature of the person of the person who drafted the charge.

CONTENT OF A COUNT IN A CHARGE SHEET.

A good count of a charge usually contain the following:
a. The name of the Defendant or accused person.
b.Date and time of alleged commission of the offence
c. Place of the alleged commission of the offence.
d. The offence committed by the Defendant.
e. Name of the person or thing against whom the offence was committed.
f. The section of the law violated.

See also  Court Order: Injunctions and Types

See Sections 194-196 of the Administration of Criminal Justice Act 2015.

Example of a Valid Count of a Charge

COUNT ONE.
That You , Mr John Paul on the 26th day of October 2021 at the No:35 Ogbaga Road, kpirikpiri Abakaliki Ebonyi state within the Abakaliki magisterial district did steal a goat worth thirty thousand Naira property of One Mark Henry and thereby committed an offence contrary to section xxx of the Ebonyi State criminal code law.

RULES OF DRAFTING CHARGES.

1.RULE AGAINST AMBIGUITY.
An ambiguous charge is a charge that does not contain all the essential elements of a valid count of a charge discussed above.

We further reproduce those essential elements below:

This rule has no exceptions. See the case of OKEKE V POLICE. Any one who drafts a charge must draft it in a way that it is easier to comprehend.

2.THE RULE AGAINST DUPLICITY.

This rule state that for each count of a charge, one offence. In other words, a count of a charge shall not contain more than one offence. if it does, it offend the rule against duplicity.

Again, there can be more than one count in a charge sheet. But for each count, a distinct offence. However, there are exceptions to the rule against duplicity.

EXCEPTIONS TO THE RULE AGAINST DUPLICITY.

1.Statutory precedent.
In some jurisdiction where forms are used to institute criminal proceedings, some of those forms usually contain more than one offence that are identical in nature. Example: Stealing and Burglary.

2.Offence of general deficiency of money.

Offence that involves misappropriation of money that happened over a period of time can be lumped together in one count where the money stolen belongs to one person.

3. Overt Acts in Treason and treasonable felony.

Under section 37,38 and 41 of the Criminal Code, every steps taken towards manifestation of intention to commit treason or treasonable felonies can be joined together in one count. See R V OMISADE.

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4.Identical offences committed in simple transaction

RULE AGAINST MISJOINDER OF OFFENCES.

This rule states that for every offence, one Charge sheet. That is, a charge sheet should not contain more than one offence unless it falls under the exceptions listed below:

a.Any three offences committed by the same person within 12 months whether they are in respect of same person or whether they are of the same character or not.

b.Offences committed in the course of same transaction.

and for those cases mentioned under sections 210-215 of Administration of Criminal Justice Act, 2015.

RULE AGAINST MISJOINDER OF OFFENDERS

This rule state that offenders should not be joined together in the same charge but should be charged separately.
The exceptions are:

  • persons accused of committing same offence in the course of same transaction.
  • Persons accused of an offence and another of and others of attempting, or being accessory to the offence.
  • Person’s accused of different offences committed in the course of same transaction etc. See Sections 208(a-f) of Administration of Criminal Justice Act, 2015.

EFFECT OF BREACH OF RULES OF THESE RULES

The effect of non compliance with these rules is that the charge becomes defective. Furthermore ,
the effect of defectiveness in a charge can be examined in two ways.
First, the effect it has if it properly raised. In the second limb, the effect it has on the trial if it is not raised at all.

In the first limb, once a defective charge is properly challenged before plea, the charge is liable to be struck out.
Where as in the second limb, if the defective charge is not challenged, it does not ipso facto render the criminal trial conducted a nullity unless the error is so fundamental and it led to miscarriage of justice. SEE AWOBUTIN VS STATE(1976)5 S.C 49.
SEE ALSO SECTION 220-222 OF ADMINISTRATION OF CRIMINAL JUSTICE ACT 2015.

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WHEN IS IT PROPER TO RAISE ISSUE OF DEFECTIVENESS IN A CHARGE.

It is most proper to raise issue of defectiveness of a charge immediately after a charge is read. That is, before plea is taken.

This is because defectiveness of a charge goes to the root of the matter. And not to waste the time of the court, immediately after a charge is read and explained to the accused and he understands same, his counsel is bound to raise the issue of defectiveness if any, in the charge as failure to do so is tantamount to surrendering to the jurisdiction of court. SEE OBAKPOLOR V STATE(1991) 1NWLR.113.

WHAT THE PROSECUTION WILL DO WHEN A CHARGE IS STRUCK OUT.

If issue of defectiveness of a charge is raised, and the charge is struck out, the prosecution can amend the charge to correct the error therein.

AMENDMENT OF A CHARGE.

A charge can be amended at any stage during trial before judgement.
Where a charge is amended before plea is taken, no leave is required. But once plea has been taken, leave of court is required to amend a charge.

Again, the court can on its own, under the ACJA, amend a defective charge before it. SEE SECTION 216(4) OF ADMINISTRATION OF CRIMINAL JUSTICE ACT 2015.

The power of court to amend a charge suo moto must be exercised judicially and judiciously. In the southern part of Nigeria, the court cannot in amending. a charge draft entirely new charge.

Unlike magistrate Court in North, where a magistrate can frame up new charge because the charge was drafted by the magistrate.
SEE SECTION 216(4) OF THE ADMINISTRATION OF CRIMINAL JUSTICE ACT, 2015.

PROCEDURE AFTER AMENDMENT.

a. The court must endorse note of the order of the amendment on the amended charge.
b. The old charge will be substituted by the new charge.
c. The new charge will be read and explained to the accused person.
d. A fresh plea will be taken.
e. The court will ask the accused if he is ready to be tried on the amended charge
f.The Court can adjourn.
g.Parties have right to recall their witnesses .
SEE SECTIONS 218 AND 219 OF THE ADMINISTRATION OF CRIMINAL JUSTICE ACT 2015.

EFFECT OF NON COMPLIANCE WITH THESE PROCEDURE.

Non compliance with these procedure render the trial a nullity. See the case of OKOSUN V POLICE

 

 

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6 thoughts on “Charge in Criminal Procedure: Basic Rules

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