AMENDMENT OF DEFECTIVE CHARGES

A defective charge is one that runs short of the principles of drafting. That is, it does not comply with any of the rules of drafting charges. A trial on a defective charge does not render the trial void rather the court considers the effect of the defective nature of the charge on the accused.

This may take various forms e.g. deletion of errors, addition or inclusion of essential particulars that were advertently omitted, substitution of a correct section of the law for one incorrectly stated, etc.

Thus, a defective charge may be amended provided that:

1.      The defect is not incurable

2.      The amendment is not intended only to bring the offence charged within the jurisdiction of the court – C. O. P v. Jinadu Ilorin(1965) NNLR 63

3.      The amendment will not cause injustice to the accused person. In Attorney-General (Federation) v. Isong (1986) 1 QLRN, an information was filed against the accused person without the consent or direction of a High Court Judge. The charge was brought under the section which only defines the offence in the Firearms Act 1966. The prosecutor applied to amend the charge. The court rejected the application for amendment on the ground that it would give the prosecutor an opportunity to re-try the accused person; it was therefore prejudicial to the accused.

4.      Where the error to be amended is frivolous, the court may be reluctant to go through the process of amendment – Ogbomor v. The State (supra).

Amendment of a defective charge may therefore be made before the accused person has pleaded to the charge or after the accused person has pleaded to the charge.

Amendment of a charge before plea – sections 162 of CPA; 207 of CPC; and 154 ACJL.

The leave of the court is not required to amend a charge if the accused has not pleaded to it but after the plea of the accused has been taken, leave is required – section 162 of CPA. The prosecution may of its own volition seek leave of the trial court by an oral application, to amend a defective charge. Where the prosecutor amends or alters a charge before the accused person has pleaded to it, he does not have to apply for the leave or consent of the court – Uguru v. The State (2002) 4 SC (Pt. 2) 13.

Thus, when an accused person has not pleaded to a charge, no leave of court is required to amend the charge. If it is a charge in the Magistrates’ Courts under the CPA, it is submitted that an entirely new charge may be substituted for the original charge. If it is a charge by way of information in the High Court under the CPA, an entirely new charge cannot be substituted for the original charge except a charge of a previous conviction of an offence or of being habitual criminal or drunkard – section 340(2) of CPA. This is because the consent of the judge was obtained to the original charge, and unless the new charge can be supported by the proof of evidence filed for the original charge, it would be necessary to obtain a fresh consent before the information can be filed.

Whenever a charge is amended before the accused person has been called upon to enter a plea, the court is not under any obligation to comply with the post amendment procedures.

Amendment of a charge after plea – Section 163 CPA; section 208 CPC; and 155 ACJL.

The trial court may also amend the charge suo motu – section 163 of CPA; sections 207 and 208(1) of CPC. What this means is that, under the CPA, the court is to grant leave to amend the charge or to amend a defective charge at any time because it is the duty of the prosecution to draft a charge and not that of the court. Under the CPC, it is the magistrate who drafts the charge and directs that the accused be tried by the court with jurisdiction. It is submitted that unlike under the CPA, a magistrate may exceed the bounds of mere amendment and frame an entirely new charge, if the new charge can be supported by the evidence adduced at the pre-trial stage.

However, where a criminal action is brought in the High Court by a charge drafted by a law officer by virtue of section 185(b) of CPC, the same rules of amendment as under the CPA applies. That is, the judge cannot in the process of amendment frame an entirely new charge, independent of the original charge. In The State v. The Chief Magistrate Aboh-Maise, Ex-parte Onukwe(1978) 1 LRN 316, after the accused persons had pleaded guilty to a charge of affray, the Magistrate upon questioning, found that one of the accused persons assaulted the other. Consequently, he rejected the plea of the accused and framed a new charge of assault against him. The charge was preferred in the name of the Commissioner of Police but the Magistrate signed it. The accused persons brought an application to the High Court for the prerogative order of prohibition to prevent the Magistrate from trying him on the new charge. The High Court held that although a trial magistrate in amending a charge could frame or substitute an entirely new charge, the substituted charge must be sustainable under the original imperfect charge; the substituted charge merely continuing the life of the original charge. Thus, there must be a nexus between the substituted charge and the original charge. The substituted charge should bear the same charge number and be against the same person or persons. It cannot be an independent and separate charge, co-existing with the original charge. Thus, the court held that the magistrate did not merely amend an existing charge – he framed an entirely independent charge. The order of prohibition was granted.

The new charge must be similar to or bear a close relationship to the previous charge before it can be permitted by way of an amendment. In Okwechime v. Inspector-General of Police 1 FSC 73, after plea, the charge against the accused person was amended. The offence of receiving property, being a public officer in order to show favour, contrary to section 100 of the Criminal Code, was amended to section 99 of the Criminal Code. The accused was convicted. On appeal, the court held that in the process of amendment, a new charge or accusation could be substituted, and the appeal was dismissed. Also, in Elumelu v. Inspector-General of Police (1957) NRNLR 17, the charge sheet containing six counts of extortion was amended to five counts of stealing and one of extortion after the accused person had pleaded to the previous charge.

In the above cases, the amendments were possible because the new charges were related to the previous charges and continued the lives of the previous charges. To determine whether the substitution of a new charge or offence, for the original charge or offence would be permitted by way of amendment, the original charge has to be compared with the new charge sought to be substituted.

Whenever a charge is amended after the accused person had pleaded to it, the court must comply with the mandatory post amendment procedures.

The following constitutes an amendment of a charge:

1.      If a valid alteration of a charge, after plea, amounts to an amendment, the court must comply with the post amendment procedures laid down by sections 163, 164 and 165 of CPA; and sections 208(2), 209, 210, and 211 of CPC.

2.      If a valid alteration of a charge, after plea, does not amount to an amendment, the court may proceed with the trial because the substance of the allegation against the accused has remained unchanged.

3.      If the alteration is not valid then any trial on the purported charge will be declared null and void, if the alteration occasioned a miscarriage of justice.

PROCEDURE FOR AMENDMENT OF CHARGES –

The court at his own will may amend a defective charge at any stage of the proceedings – Attah v. The State (1993) 7 NWLR (Pt. 305) 257 at 287; Duru v. C.O.P (supra).

The court is not required to go through the post amendment procedures because the accused has not pleaded to the charge before it is amended. Thus, the accused person may seek for an adjournment in order to prepare his defence in accordance with the amendment – Uguru v. The State (supra); Attah v. The State (supra).

However, where the accused person has already pleaded to the charge before it is amended, he may adopt any of the following two methods:

1.      The prosecutor may make an oral application to amend the charge – this is sought orally to amend the charge. If the court grants it, it substitutes the prior charge and is corrected on the face of the defective charge, but if the amendment is of a serious nature it is doubtful that the court will grant such an amendment and as such, the original charge shall remain and the trial shall proceed upon it.

This method is adopted in cases where the offence is a minor one e.g. clerical errors, dates, etc.

2.      The prosecutor may file a motion for amendment of the charge – the prosecutor may tender a written copy of the proposed amendment to the court and if granted by the court it is attached and becomes the charge. This is more advantageous in that it gives the other party notice of the amendment and, thus, time to scrutinise the amended charge as opposed to an amendment that is stated orally in court without prior notice of the other side, and this can be objected to – section 155(3) ACJL.

It should however be noted that an amendment has a retrospective effect. Under section 164(4) of CPA, the amendment to a charge relates back to the date of filing of the document containing the charge – Attah v. The State (supra).

PROCEDURE AFTER AMENDMENT OF CHARGES –

The procedure to be complied with by the trial courts after a charge has been amended are as follows:

1.      Endorsement of amendment note – The order for amendment shall be endorsed on the charge. The court must endorse a note of the order of amendment on the amended charge, which must be substituted for the original charge. It must be deemed to be the original charge – section 164(4) CPA; and section 156(4) ACJL. In C.O.P v. Alao (1959) WRNLR 39, a charge was amended during the trial. The order of amendment was not endorsed on the amended charge. On appeal against conviction, it was observed that it is essential to endorse an amended charge, because an omission to do so may vitiate the proceedings.

2.      Reading and explanation of an amended charge – The new charge must be read and explained to the accused person and a fresh plea taken from the accused to the amended charge – sections 163 and 164 CPA; section 208(2) CPC; and section 156(1) ACJL. In Youngman v. C.O.P (1949) 4 FSC 283, the accused person was charged with indictable offences and was convicted. On appeal against his conviction, the accused contended that, inter alia, that failure by the court to obtain a fresh plea and consent rendered his trial and conviction null and void. The Supreme Court allowed the appeal on the ground that failure to obtain a fresh plea and consent from the appellant, after the charge was amended, was contrary to sections 163 and 164(1) of the CPA.

The requirement of a fresh plea to a charge after an amendment is also compulsory in criminal trials at tribunals. In Okosun v. The State (1979) 3 & 4 SC 36, the accused was tried by a Robbery and Firearms Tribunal for the offence of robbery. During the trial, the charge was amended. The original charge stated that the accused robbed the complainant of a tape recorder. The charge was amended and ‘record player’ was substituted for ‘tape recorder’. The accused was convicted. On appeal against conviction, it was submitted that sections 163 and 164 of the CPA applied to tribunals, and the tribunal had failed to comply with these statutory provisions. The Supreme Court accepted counsel’s contention and held that failure to obtain a fresh plea after the amendment was fatal to the trial and that the trial was null and void and of no effect. The appeal was allowed.

However, the requirement of a fresh consent to an amended charge of indictable offences is only applicable in Magistrates’ Courts trials in Southern Nigeria – section 304 CPA. Also, in the South, a charge sheet may contain an indictable or non-indictable offence in the same charge sheet. If the charge of indictable offence is amended, a fresh plea and consent must be obtained – Jones v. C.O.P (1960) 15 FSC 38, the Court allowed the appeal and held that the Magistrates’ Courts ought to have obtained a fresh consent on the amended indictable offence. Where it is non-indictable offence, it requires no consent. Therefore, if the charge of non-indictable offence is amended, the court can only obtain a fresh plea but not a fresh consent because the charge amended is not one requiring consent – Edun v. C.O.P (1966) 1 All NLR 17, the accused was charge for robbery and taking ballot boxes without authority. The latter offence being one triable in the Magistrates’ Courts without consent. The accused was convicted. On appeal, the Supreme Court dismissed the appeal and held that the expression ‘charge’ in section 304 of CPA, does not mean the whole document upon which the accused is arraigned, but a statement of an offence. Therefore, since the statement of offence or count amended is one triable summarily without consent, it was unnecessarily to obtain a fresh consent after the amendment.

3.      Consent of the accused – The court must ask the accused whether he is ready to be tried on the amended charge – section 164(1) of CPA. The CPC does not have such provision.

4.      Adjournment – The accused and the prosecutor must be given the option of an adjournment if, in opinion of the court, proceeding immediately with the trial after the amendment would prejudice either of them. That is, either the accused or the prosecutor shall be given adjournment or a new trial order if proceeding immediately with the trial shall prejudice the accused in his defence or the prosecutor in the conduct of his case – section 164 (2) & (3) CPA; sections 209 and 210 CPC; and section 156(2) & (3) ACJL. Adjournments are usually granted by the court in its discretion depending on the circumstance of the case, and entitlement to a reasonable time and facilities to prepare for a defence is a right of an accused person – section 36(6)(b) of the 1999 Constitution; Gokpa v. Inspector-General of Police (1961) 1 All NLR 432.

5.      Call or recall of witness – The court must permit the accused and the prosecution to recall any witness who had testified, or call ne witnesses, and examine or cross-examine them with reference to the amendment – section 165 CPA; section 211 CPC; and section 157 ACJL. That is, the prosecutor and the accused shall be allowed to recall or re-summon any witness who may have been examined and examine or cross-examine such with reference to such amendment. It is the duty of the court to inform the accused who is not represented of his counsel of this right but where the accused is not represented, the court has no duty to inform his counsel because it is presumed that the counsel know these procedures. In Shoaga v. R 14 WACA 22 Verity CJ observed thus:

“Under section 165, it is clearly laid down that where an alteration or an addition has been made in the charge, the accused person must be allowed to recall and cross-examine any witness who has already given evidence if he so desires. That is a right which can not be taken away from him and of which he must be informed if he is not legally represented.”

The court cannot refuse an application to call or recall witnesses after a charge has been amended – Adisa v. Attorney-General of Western Nigeria (1965) 1 All NLR 412, the Supreme Court held, inter alia, that the accused person had a right to recall witnesses after the charge against him was amended.

EFFECT OF FAILURE TO COMPLY WITH PROCEDURE AFTER AMENDMENT

Failure to comply with the statutory requirements render the trial null and void and of no effect. The appeal court, on appeal against conviction will set the conviction aside. However, where there are sufficient or overwhelming evidence at the trial, the appellate court may order a retrial.click on any picture at right hand or left hand side for more insight.

Barr, Ezekiel chigozie has many years experience in providing legal representation and advising clients across an exceptionally broad range of contentious and non-contentious matters. His main goal is to help clients resolve any contentious or non-contentious legal problem they are having rapidly and cost effectively.

Email: victorezekielc@gmail.com

Tel: +2348034997413

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