CHARGE SHEET

CHARGE SHEET

A charge is said to mean the statement of offence or offences with which an accused is charged in a summary trial, before a court – section 2 of Criminal Procedure Act (CPA).

The Criminal Procedure Code (CPC) does not however in any section define a charge rather it prescribes the form for charges in section 200 as “charges may be as in the form set out in Appendix B modified in such respects as may be necessary to adapt them to the circumstances of each case”. It should be noted that unlike the CPA, does not contain a precedent of a charge preferred in the High Court. The word “may” in section 200 of CPC is also discretionary and not mandatory.

It is also said to be a statement of offence in a summary trial and in a trial on information.

There is a difference between summary trial and trial by information: In trial by information, leave of court is sought before the information is proffered and proof of evidence is necessary to show that there is a prima facie case against the defendant, while in a summary trial, one does not need leave of court to proffer the charge, one can just go ahead and do this. Trials before Magistrate Court are summary trials. Trials before Federal High Courts are summary trials (no proof of evidence needed). Where the charge before the High Court is not by complaint, the High Court can try the charge summarily.

An accused person is arraigned in a court upon a charge sheet. A charge sheet is a document before a court which informs the court of the allegation against the accused person and contains the charge against the accused person. In Edun v. Inspector-General of Police (1966) 1 All NLR 17 at 19, the Supreme Court held that “Charge in the Criminal Procedure Act may mean, as in section 162 and section 163 the whole document, which may contain one or more counts of accusation, or merely, as in section 156, a count of accusation”. click on the picture on right hand side or left for more insights.

FORMS OF CHARGE SHEETS

This takes different forms which depend on the factors. Firstly, whether it contains a charge drafted under the provisions of the CPA or CPC, and secondly, whether it is a charge in the Magistrates’ Court, the Federal High Court, the State High Court in Northern Nigeria or an information in the State High Court in Southern Nigeria.

The forms are:

1)      Heading;

2)      Reference number;

3)      Parties;

4)      Preamble;

5)      Counts (charges); and

6)      Date and Signature of the drafting authority.

1) HEADING –

The charge sheet is headed by the name of the court where the trial of the accused is to take place. The heading will also indicate the State where the trial will take place and the magisterial district or judicial division where the case is to be tried. Section 337 of the CPA provides that every information shall bear a heading whilst there is no provision in the CPC. But the same procedures apply. It is called “judicial division” in High Courts, and “magisterial districts” in Magistrates’ Courts.

The word “HOLDEN” is the old English expression for “HOLDING”. It is better and acceptable to state “HOLDING AT” rather than “HOLDEN AT” in the heading of a charge sheet.

2) REFERENCE NUMBER –

The charge sheet bears a charge number or case number also known as reference number. Charge numbers are used in the Southern states while case numbers are used in the Northern states. The charge or case number as the case may be is stated at the top right hand corner of the charge sheet immediately after the heading.

3) PARTIES –

In civil proceedings, the usual parties are between the plaintiff(s) and the defendant(s). However, in criminal proceedings, the victim of a crime is not a party in the proceedings, except as a witness, for example, in a case between “The State and XYZ”, the state is the complainant (not a party) while the offender is the defendant or accused person. This is because a crime is a violation of the laws of the State made for security, order, and good government of the society.

It should be noted that section 1 of CPA uses the expression “defendant” to mean any person against whom a complaint of a criminal nature is made while section 1 of the CPC uses the expression “accused person” to define persons who are charged with the commission of a crime, arrested persons and persons who are the subject of a complaint or First Information Report (FIR). Any of the two may be used but whichever one uses first must be used consistently.

In Magistrates’ Courts, State is represented by Commissioner of Police (C.O.P) in a complaint while in High Courts, Attorney-General is represented as State, and in Federal High Courts, Attorney-General of the Federation is represented by Federal Republic of Nigeria.

4) PREAMBLE –

The requirement in this stage applies to all charges.  But the following shall be distinguished:

The information as applicable to the High Courts in the Southern States – Criminal proceedings are commenced by way of information which is usually filed by the Attorney-General of the Federation in cases of violations of Federal laws and states Attorneys-General in cases of State laws – section 174 & 211 of 199 Constitution.

The two distinguishing features of an Information are:

i.                    The preamble by which the A-G informs the Court on behalf of the State that the named offender is charged with the offences stated after the preamble; and

ii.                  Each allegation of offence is stated in two paragraphs namely:

A.    STATEMENT OF OFFENCE

B.     PARTICULARS OF OFFENCE.

These two paragraphs make each count of an alleged offence. Every other succeeding count of alleged offence must be stated in two similar paragraphs of particulars of offence and statement of offence.

The charge as preferred in the High Courts in the Northern States – This is done by virtue of section 185(b) of the CPC (but charges are filed by way of information in Taraba and Adamawa States – The CPC (Amendment) Edict of No. 1986, Gongola State). The charges are usually filed by the A-G of the Federation in cases of violations of Federal laws and States A-G in cases of violations of State laws. Before the actual offence with which the accused person(s) is charged is stated, a preamble is stated. Immediately after the preamble, the alleged charges are then set out in single paragraphs for each count.

The charge as filed in the Federal High Courts – Criminal trials in such courts are summary trials. The charges are filed by the A-G of the Federation or by law officers in his department on his behalf. The charge sheet does not have a preamble, immediately after the parties are named, the alleged offences are then set out in single paragraphs for each count.

The charge as preferred in the Magistrates Courts in Northern States – Under section 160 of the CPC, the Magistrate drafts charges after taking evidence from the prosecution – Harunami v. Borno Native Authority (1967) NNLR 19. The charge sheets used for trials at Magistrates Courts in Northern States has three parts namely:

i.                    The preamble – introduction

ii.                  The main body – counts

iii.                The direction – trial court.

The Magistrate introduces himself before he states the actual offence (count) with which the accused person is charged, thereafter he will state a directive as to which court shall try the alleged offenders.

The charge as preferred in the Magistrates Courts in Southern States – However, in such courts, this does not commence with a preamble. After stating the names of the parties, the alleged offences are then set out in a single paragraph for each count.

5) COUNTS –

This has to do with the contents of a charge.

CONTENTS OF A CHARGE

A charge must contain the following particulars:

a)      Name of the accused persons;

b)      Date of the commission of the offence;

c)      Place of the commission of the offence;

d)     Statement of the offence committed, that is, the offence which the accused is charged with;

e)      Name of the person and/or thing against whom  or in respect of which offence was committed;

f)       The written law and section of the law against which the offence is said to have been committed; and

g)      Signature of the person drafting the charge.

NAME OF THE ACCUSED PERSONS

The accused persons must be referred to in the charge by name, description or designation as is reasonably sufficient to identify him without necessarily stating his correct name or his abode, style, degree or occupation otherwise he may be described as “a person unknown’. That is, it is unnecessary to state the status, title or degree of the accused person – section 147 CPA; and section 202 CPC.

DATE OF THE COMMISSION OF THE OFFENCE

The charge is to contain particulars of time – section 152(1) CPA; and section 202 CPC. The date the offence was committed must be stated if it is of essence in proving the offence – section 152(2) CPA. Charge need not contain the exact date in which the offence was committed, it is sufficient if the charge states on or about a particular date but it should be as near as possible. In Duru v. Police (1960) LLR 130, the accused person was charged with receiving gratification on or about 3 May 1960. The evidence adduced in the trial showed that the offence was committed between 5 and 7 may 1960. The magistrate amended the date and the accused was convicted. On appeal against conviction, the court held that the amendment was unnecessary because the accused persons could have been convicted on the charge as earlier framed; that the exact date on which an offence was allegedly committed must not be stated in the charge; and that the provision of section 163 of the CPA permits the amendment of a charge even on the day reserved for judgment.

Any doubt as to the precise or exact date on which an alleged offence was committed may be resolved by the use of the expression “on or about” in stating the date. For example, on or about 7^th of December 2009. Also, when time is an element of an offence, a count must indicate the time the offence was allegedly committed. For example, in the offences of house breaking, and burglary. The time of commission of the alleged offence is a vital element, which distinguishes house breaking from burglary (the difference between A. M – day, and P. M – evening).

PLACE OF THE COMMISSION OF THE OFFENCE

A charge sheet must contain the place the alleged offence is said to have been committed – section 152(1) CPA; and 202 CPC, the magisterial district or judicial division where the offence is alleged to have been committed in order to determine the venue of the trial of the offence, that is the court with competent jurisdiction to try the offender – Bamaiyi v. Attorney-General Federation (2000) 6 NWLR (Pt. 661) 35.

The place where an offence is alleged to have been committed determines the heading on the charge sheet.

THE OFFENCE WITH WHICH THE ACCUSED IS CHARGED

The offence allegedly committed by the accused must be stated in the charge sheet – section 201(1) CPC; and section 151(1) CPA. If the written law creating the offence gives it any specific name the offence should be described in the charge by that name only – section 201(2) CPC; section 151(1) CPA. If the statute creating the offence does not give it any specific name, as much of the definition of the offence must be stated in the charge as is sufficient to give the accused notice of the allegation against him – section 201(3) CPC; and section 151(2) CPA. And for this purpose, the offence should be stated in its ordinary name and not its technical name – section 152(3) CPA. For example, when charging a person for an alleged offence of stealing, the offence should simply be stated as “stealing” and not as “fraudulent conversion”.

Where the written law, which created the offence, describes it in marginal notes, it is also acceptable to use the name given to the offence in the marginal notes of the statute, which created the offence. The principal criminal enactments, the Criminal Code and the Penal Code employ the use of marginal notes. For example, the offence of murder in section 316 of the CC and the offence of culpable homicide punishable with death in section 220 of the PC.

It is advisable to use the exact words used by the particular section of the law which created the offence in the count alleging the offence. In Adisa v. A-G, Western Nigeria (1965) 1 All NLR 412, the accused was charged with murder, in an information in the High Court. The statement of offence stated that the accused “murdered” the deceased but the particulars of offence alleged that the accused “unlawfully killed” the deceased. During the trial, the particulars of offence was amended to read ‘murdered’ instead of ‘unlawfully killed’. The accused was convicted. On appeal, the Supreme Court held that the charge as originally laid was defective because the particulars ought to have stated that the accused murdered the deceased, and so the amendment was necessary.

However, a count that uses words different from the exact words used by the law is not unlawful. Provided that the accused person is not misled by the different words used in the count – Asuquo v. The State (1967) 1 All NLR 123; Mgbemene v. Inspector-General of Police (1963) 2 SCNLR 261. In Ogbodu v. The State (1987) 2 NWLR (Pt. 54) 20, the accused was charged with murder but the particulars of the offence stated that the accused unlawfully killed the deceased. The accused was convicted, on appeal, it was contended inter alia that the charge was defective because the particulars of offence stated that the accused ‘unlawfully killed’ the deceased instead of stating that the accused ‘murdered’ the deceased. The Supreme Court rejected the contention and held that although the precedents in the Third Schedule to the cPA employs the word ‘murdered’ instead of ‘unlawfully killed’ for its precedent charge for murder, nonetheless it is permissible to use the expression ‘unlawfully killed’ instead of ‘murder’, because the former expression encompasses both murder and manslaughter by virtue of section 315 of the Criminal Code. The court concluded that the charge was not defective and that the appellant was not misled because he knew he was being tried for murder and he defended a charge of murder. The appeal was dismissed.

NAME OF THE PERSON AND/OR THING AGAINST WHOM OR IN RESPECT OF WHICH OFFENCE WAS COMMITTED

The law requires that the name of the person if any and or the thing if any against which the offence was committed should state as are reasonably sufficient to give the accused notice of the matter with which he is charged – section 202 CPC; section 152(1) CPA. The person allegedly offended is the real complainant and his name appears in the body of the charge sheet. The C.O.P or the State, depending on where the prosecution is being initiated, is, by legal fiction, the complainant, whose name appears in the title of the charge sheet.

The name of the thing in respect of which the offence was committed must also be stated in the charge. For example, for the offence of malicious damage to property, the property alleged to have been maliciously damaged must be clearly stated. For the offence of stealing, the thing allegedly stolen must be clearly stated in the charge sheet. It is permissible but not mandatory to state in the charge the value of the thing allegedly stolen and the owner of the thing allegedly stolen – section 154(1) CPA. In Fashola v. Inspector-General of Police (1958) LLR 53, the accused persons were charged inter alia with stealing. The name of the owner of the lorry allegedly stolen was not stated in the charge. The accused were convicted on the charge of stealing. On appeal against conviction it was contended that the charge was defective because it did not contain the name of the owner of the property alleged to have been stolen. The Court held that by virtue of section 154(1) CPA, it was unnecessary to state the owner of the property, except where the property was subject to special ownership. The appeal was thus dismissed because the property was not subject to special ownership. In Adewusi v. R (1963) 1 All NLR 316, the Supreme Court stated that except where required for the purpose of describing an offence depending on any special ownership of property, the owner of the thing allegedly stolen need not be stated in the charge sheet. However, where the owner is known, it is more satisfactory if he is named as such in the charge, and if he is not known, the charge should describe what was stolen as property of persons unknown.

Where the prosecution intends the court to impose a stiff punishment because of the value of the thing stolen or the relationship between the accused and the owner of the property, such value or relationship must be stated in the charge sheet – section 152(4) CPA; R v. Eson 11 NLR 29.

THE WRITTEN LAW AND SECTION OF THE LAW AGAINST WHICH THE OFFENCE IS SAID TO HAVE BEEN COMMITTED

This can be found under section 151(3) CPA; section 201(4) CPC; and section 36(12) of the 1999 Constitution, the constitution provides that no person shall be charged with an offence that is not contained in a written law and penalty thereof prescribed. This is consistent with section 151(3) CPA, and section 201(4) CPC which both provides that a charge must state the written law and the section of it against which the offence is said to have been committed. Therefore, for every offence charged, there must be a written law creating that offence The fact that a charge has been made shows that every legal condition required by law to constitute the offence charged was fulfilled – section 151(4) CPA; section 201(5) CPC.

6) DATE AND SIGNATURE OF THE DRAFTING AUTHORITY –

The charge sheet must be dated and signed by the person who drafted it. Where the charge sheet is by way of information, the offence alleged, the section of the enactment creating the offence, and the enactment creating the offence are constituted in a separate paragraph.

Apart from the Attorneys-General, any other person who drafts a charge must in addition to charging it, state his designation and state the fact he is signing for and on behalf of the Attorney-General.

THE RULES OF DRAFTING CHARGES

In Ojegele & Ors v. The State (1998) 2 SCNJ (Pt. II) 231, the Supreme Court cited with approval the definition of a rule stated in Western Steel Works Ltd v. Iron & Steel Workers Union (1986) 3 NWLR (Pt. 30) 617, where it was stated that: “a rule is a normative proposition making certain legal results depend upon the establishment of certain factual situations stipulated in the antecedent part of the rule.

The Blacks Law Dictionary, 6^th Edition defines it as a rule, among other things, is an established standard, guide or regulation.

Rules therefore determine the outcome of the case in which they apply. Some rules are expressly stated in subsidiary enactments to control and regulate certain stipulated situations. For example, the rules governing the procedure of courts on civil matters are contained in the Civil Procedure Rules. The rules governing the procedure to be followed under the provisions of the principal enactments are contained in the Criminal Procedure Act Rules and the Criminal Procedure Code Rules. However, the rules governing the drafting of charges are:

1.      The rule against ambiguity.

2.      The rule against duplicity.

3.      The rule against misjoinder of offences.

4.      The rule against misjoinder of offenders.

RULE AGAINST AMBIGUITY

This rule states that charges must be clear to the extent as to give an accused person adequate notice of the offence for which he is charged – section 152(1) CPA. It applies to counts of alleged offences and not to the entire charge sheet. A charge (that is, each count) must therefore be free from ambiguity, must be certain and should contain as follows:

a)      The offence for which the accused person is charged;

b)      The written law and the section of the written law against which the offence is said to have been committed;

c)      Particulars of the date and place where the offence was allegedly committed;

d)     The person against whom or thing, if any, in respect of which the offence was committed; and

e)      The name of the accused person.

The effect of an ambiguous charge will always depend on whether the ambiguity was sufficient to mislead the accused person, to the extent that he did not know the offence for which he is being tried, that is, the importance of this rule is that the accused must know clearly why he is before the court. This rule unlike other rules is rigid and flexible, and admits of no exception. However, because the purpose of the rules is to give an accused person adequate notice of the charge against him, not all defects or ambiguities will nullify a trial. Sections 166 of CPA, and 222 of CPC both provide that no omissions or errors in a charge shall be regarded as material unless the accused person was in fact misled by such error or omission. Consequently, in cases where the errors or omissions are minor or merely technical, the court has refrained from nullifying the charges only because of the said errors or omissions. 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. 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.

Under no circumstances should a charge be ambiguous. In Okeke & Anor. v. Inspector-General of Police (1965) 2 All NLR 81, the accused was charge with the offence of conspiracy and stealing. The trial magistrate convicted him of both offences and stated in the judgment book that the accused was charged under some sections of the Criminal Acts. On appeal against conviction, on the ground that the charge was bad for ambiguity, it was held that as the sections of the enactment contravened by the accused were not stated in the trial magistrate’s judgment and as there were no enactments known as the Criminal Acts, the charge contravened section 151(3) of the CPA, which provides that the written law and the section of the written law against which the offence is alleged to have contravened shall be set out in the charge. Thus, the appeal was allowed.

THE RULE AGAINST DUPLICITY

This rule addresses the count in the charge as in the case of ambiguity. Generally, a count in a charge sheet contains only one offence. Therefore, what the rule however forbids is that no count shall contain more than one offence except in permitted circumstances dictated by a statute. A charge is therefore bad for duplicity if a count contains more than one offence in a charge sheet – section 156 CPA; section 212 CPC; Okeke v.  The Police 10 WACA 363, the appellant was charged and convicted for the offence of demanding and receiving contained in a single count. On appeal, the West African Court of Appeal held that demanding and receiving constituted two separate offences and should have been properly charged in two separate counts, although in the same charge sheet; Awobotu v. The State (1976) 5 SC 49; Adebayo v.  The State (1987) 2 NWLR 468 (Pt. 57). An accused must be charged for each of the offences committed by him separately on the charge sheet or information.

The exceptions to the rule against duplicity are:

a)      General deficiency of money – 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 (that is, fraud or misappropriation of money in any form) – section 152(2) CPA; section 203 CPC, and section 148(1) ACJL.  It should be noted that one can only do this if all of the money stolen is owned by one person – Domingo v.  R. (1963) 1 All NLR 81; R. v.  Aniemeke (1961) 1 All NLR. 43. In R. v.  Nwankwo (1962) All NLR 64, the accused was convicted of stealing monies for which he had issued a receipt in three separate receipt books. He was charged with three counts of stealing, each count containing the sum total of the monies misappropriated from each of the receipt books, he appealed against his conviction, contending that it was for bad duplicity. Dismissing the appeal, the court held that since the act of the accused amounted to fraudulent conversion of monies, the monies stolen in each receipt book could be aggregated and contained in a single count under the exception of general deficiency of money to the rule against duplicity.

b)      Statutory – Adoption of the statutory forms where a statute prescribes that a charge should contain more than one offence – sections 150 & 463 CPA; section 200 CPC, and section 148(1) ACJL.  Some of the forms allow for the joining of two offences together that is, offence of housebreaking and burglary can be joined with that of stealing where a person entered into a dwelling house unlawfully and stole there – John v. The State (1967) NMLR 101; Humbe v. The State (1974) NNLR 44, the accused was charged under section 221 of the Penal Code for Culpable Homicide punishable with death. After plea, the charge was amended to read section 221(a) of the Penal Code. At the trial, the accused was tried on the amended charge and convicted but appealed against his conviction on the ground that a fresh plea was not obtained after the amendment was unnecessary because the charge as originally framed followed the precedent in Appendix B of the CPC, which contains no sub-section, the court concluded that there was indeed an amendment of the charge when section 221(a) was substituted for section 221 and in the circumstance, there has been no miscarriage of justice.

c)      Offences defined in the alternative – Offences defined in the alternative can be contained alternatively, in a single count – section 154(5)(a) CPA; 150(5)(a) ACJL. For example, sections 356(2) & 406 Criminal Code. It should be noted that a charge that is bad for duplicity only invalidates trial when it leads to miscarriage of justice. It is also permissible to include in a count all the other acts allegedly done by an accused person as manifestation of his intention to commit treason or treasonable felony – Ogenyi v. Police (1957) NRNLR 140.

d)      Overt Acts – This applies to acts of treason or treasonable felony. This offences are contained in sections 37, 38 and 41 of the Criminal Code and section 410, 411, and 412 of the Penal Code. In drafting a charge for these offences, it is permissible to contain in a count all the overt acts allegedly done by an accused person as manifestations of his intention to commit treason or treasonable felony. In R. v. Omisade (1964) All NLR 233, the accused persons where charged inter alia with the offence of treasonable felony. All the overt acts allegedly done in manifestation of the treasonable felony by the accused were contained in a single count.

e)      Identical offences committed in a single transaction – Where an accused person is alleged to have committed offences of the same kind in a single transaction, he may be charged with the commission of all offences in one count. In C.O.P v. Oyewusi (1952) WRNLR 281, the accused, a police officer demanded money from five persons arrested in order to cease prosecution against them. One of the five persons arrested gave the accused money for and on behalf of himself and all the other arrested persons. The accused was charged and convicted with the offences of demanding money with menaces and official corruption. On appeal, the court held that since the offences committed by the appellant were identical offences committed in a single transaction, it was permissible to lump them together in a single count of the charge, and the appeal dismissed.

RULE AGAINST MISJOINDER OF OFFENCES

As a general rule, for every distinct offence with which a person is accused, there must be a separate charge contained in a charge sheet which must be tried separately – section 156 CPA; section 212 CPC. For example, if a person is accused of committing the offence of manslaughter, breach of trust and rape, he must be charged separately for each of these offences. However, if one is charged for all the offences in one charge sheet, the charge would be bad for mis-joinder of offences and would therefore be detective.

There are however exceptions to this rule which are contained in sections 157 to 161 CPA, and sections 213 to 216 CPC. They are:

a)      Commission of more than one offence within 12 months – Section 157 CPA provides that any person accused of more than one offence, committed within 12 months, my be charged with or not more than three of such offences in the same charge sheet. It is not necessary that the three offences were committed against the same person or in respect of the same thing nor that the three offences must be of the same kind. In Dau v. Kano Native Authority (1946) 12 WACA 14, the appellant was convicted by the Magistrate Court Kano on seven charges of offences against the Money Lenders Ordinance. The West African Court of Appeal held that subject to the limitations that the offences must not exceed three in number, and must be committed within a period of 12 months, the offences alleged against the accused may be dissimilar and may be in respect of the same person or thing or of different persons or things.

b)      Commission of different offences in the same transaction – If one series of acts or omissions so connected as to form the same transaction, offences involved may be charged together – section 158 CPA; section 214(1) CPC. This exception however does not limit the number of offences, which may be charged in the same charge sheet. Also, there is no time frame within which the offences may be committed before they can be charged together. The test to be adopted as to whether the offences were committed in the course of the same transaction is formulated in Haruna & Ors v. The State (1972) 1 All NLR (Pt. 2) 302 at 318 which requires a consideration of three factors namely:

-          Proximity of time and place; or

-          Continuity of action; or

-          Community of purpose or design.

The acts or omissions must be so connected as to form one transaction. In Lawson v. The State (1975) 4 SC 115, the offences of conspiracy to commit a felony, unlawful possession of Indian hemp, attempting to export Indian hemp, and making false declarations to the Department of Customs where charged together in the same charge sheet. The offences were held to be validly charged and consequently, did not violate the rule against misjoinder of offences.

The procedure is the same under the CPC. A defendant who in course of a robbery causes the death of another person may be charged with robbery and murder in the same charge sheet – The State v. Adamu (1969) S.C.O.P.E 35; (1996) NNLR 167.

c)      Commission of offences defined under different laws – Offences falling within two or more definitions in any written law but are committed by the same act or omission – section 159 CPA. For example, a person who causes the death of another while driving in a reckless manner may be charged with manslaughter under the Criminal Code Act and causing death by dangerous driving under the Road Traffic Law in the same charge sheet. This is possible because both acts are offences under two different laws. In Elliot v. C.O.P (1960) WRNLR 128, the accused was arraigned on a charge sheet containing two counts. One count alleged official corruption contrary to section 98(2) of the Criminal Code, and the other count alleged corruption of public officers contrary to section 42(2) of the Public Administration Law of 1959. The offences arose out of the same facts and the accused was convicted on both counts. On appeal against conviction, the High Court held that both counts could be preferred under different laws constituting the offence by virtue of section 159 of the CPA, the accused could only be convicted on one count. Thus, that it was wrong for the lower court to have convicted on both counts, and the conviction on the first count was set aside while the other was affirmed.

d)     Commission of singular or combination of acts or omissions – Acts constituting one offence but constituting when combined a different offence, may be charged together for offences so constituted – section 160 CPA. For example, an offence may comprise several acts or omissions. An act or omission may constitute an offence, a combination of such acts or omissions may singularly constitute a different offence. Section 160 CPA permits the joining of such diverse offences in the same charge sheet. The joinder of such offences in the same charge sheet is not a violation of the rule against misjoinder of offences.

e)      Commission of acts or omissions constituting several offences – Where it is doubtful which of several offences has been committed, offences suspected by facts available may be charged together in alternatives – section 161 CPA; section 216 CPC. He may be:

i.                 Charged with having committed all of such offences; or

ii.               Charged with having committed some of such offences, or

iii.             Charged in the alternative with having committed some one or other of the said offences.

All the charges may be contained in the same charge sheet without violating the rule against misjoinder of offences. This is because an accused cannot be punished twice for the same act or omission – Azie v. The State (1973) 3 SC 149 at 161.

f)       Commission of an offence in any of several occasions – When it is doubtful on which occasion an offence has been committed, an accused may be charged with having committed an offence alternatively on one or other of such occasions – section 215 CPC. For example, where A kills B and committed a felony. A may be charged with one count of manslaughter and another count of murder on the same charge sheet.

RULE AGAINST MISJOINDER OF OFFENDERS

As a general rule, any person who is accused of an offence must be charged and tried separately for the offence. For example, if A is accused of rape, B is accused of murder and C is accused of arson, the alleged offenders A, B and C must be charged separately and tried separately for the offences of rape, murder and arson respectively otherwise the charge would be a bad charge for misjoinder of offenders. It is immaterial that they did such offence at the same time and date or in the same place.

There are exceptions to this rule which are contained in sections 155 CPA; and s. 221 CPC:

a)      Persons accused jointly of committing the same offence can be charged in the same charge sheet – When more than one offender commit offences that are related or of similar character they may be tried together – section 155 CPA; section 221(c) CPC. They may not only be charged in the same charge sheet, but they may also be charged in one single count with the alleged offence. In Okojie & Ors v. C.O.P (1961) WRNLR 91, the five accused persons 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 CPA, and held that as the appellants jointly committed the assault, they were properly charged together.

b)      Persons accused of committing different offences in the course of the same transaction – When more than one offender commit different offence in the course of the same transaction, they may be charged and tried together – section 155 CPA; section 221(d) CPC. However, difficulty arises in determining when a criminal transaction begins and when it ends, in order to ascertain the offences that were committed in the course of the same transaction. The test to be applied to determine the beginning and the end of a criminal transaction was laid down by Fatayi Williams J.S.C (as he then was) in Haruna & Ors. v. The State (supra), as follows:

         “whether two or more acts constitute the ‘same transaction’ depends on the proximity of time and place, continuity of action, and community of purpose or design relative to the particular acts… Thus, in order to constitute one transaction, all the acts from the very beginning should be either in contemplation or should form the component parts of a whole”.

The Supreme Court held that the offences were committed in the course of the same transaction, as the offenders had a common design or purpose in committing the offences. It cited section 221(d) of the CPC, and held that the offenders were properly charged together.

c)      Persons accused of the same offence committed in the course of the same transaction – When more than one defender are accused of committing same offence in course of same transaction, they may be charged together – section 155 CPA; section 221(a) CPC

d)     Persons accused of committing an offence and persons accused of abetting or attempting to commit the same offence – When more than one offender are distinctly accused of committing, attempting to commit or abetting the commitment of an offence, they may be charged and tried together – section 155 CPA; section 221(b). Persons attempting to commit the same kind of offence which another person has already committed can be charged jointly in the same charge sheet. For example, where A and B steals, and B gets caught stealing while A escapes. If A is later caught, A and B can be charged jointly; A with stealing and B with attempting to steal.

e)      Persons accused of committing offences that are related to each other – Persons accused of offences such as stealing, extortion, criminal misappropriation, criminal breach of trust and persons accused of receiving property obtained as a result of the said offences – section 155 CPA; section 221(e) and (f).

f)       Persons accused of offences committed during a fight or series of fights arising out of another fight, and persons accused of abetting any of these offences – This is not available under the CPA, but it is available under section 221(g) CPC. An alleged offender can only be charged together with another alleged offender or offenders in one charge sheet for an offence allegedly committed by them, if he falls within any or all of the exceptions to the rule against misjoinder of offenders. The names of the alleged offenders to be tried jointly must appear in the title of the charge sheet.

EFFECT OF BREACH OF EACH RULE

BREACH OF THE RULE AGAINST AMBIGUITY

As the whole essence of this rule is to give an accused person notice of the charge against him 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 – Duru v. The Police (1960) L.L.R 130; Ogbomor v. The State (1985) 1 NWLR 223; Ogbudu v. The State (1987) 3 S.C. 497; Sugh v. The State (1988) NWLR 475. In the following cases however, the court held that the errors in the charges were fundamental. Generally, the court does not regard any omission or errors in the charge as material except the accused was in fact misled by such error or omission.

In Obakpolor v. The State (1991) 1 N.W.L.R, 113, the Supreme Court held that objection to a defective charge should be made immediately after the charge is read over and explained to accused because pleading to such a charge is a submission to jurisdiction, if the defect does not deprive the court of its jurisdiction.

BREACH OF THE RULE AGAINST DUPLICITY

A charge that is bad for duplicity does not necessarily invalidate the charge or the trial except it has occasioned a miscarriage of justice – Awobotu versus The State (1976) 5 S.C. 49.

BREACH OF THE RULE AGAINST MISJOINDER OF OFFENCES

If a trial court enters a verdict of conviction on one of the counts and acquits on others, an appellate court may set aside the conviction.

BREACH OF THE RULE AGAINST MISJOINDER OF OFFFENDERS

Where a defendant fails, refuses or neglects to apply for separate trials, he will not be heard to complain that the court ought to have ordered separated trials – Mailayi & Anor. v. The State (1968) 1 All NLR 116.

Follow @wingrassnews

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