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).
Effect of a charge has to do with where a charge is defective, what shall be the effect.
If a charge is defective because it contravenes any or all of the rules of drafting of charges, and the defect is not amended in the course of the trial, the defect would be regarded as immaterial except where the accused was prejudiced at his trial as a result of the defective charge.
Section 166 of the CPA provides that:
“no error in stating the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any stage of the case as material unless the accused was in fact misled by such error or omission.”
From the above provision, it could be said that the law distinguishes between firstly, defects which are material and fundamental and undoubtedly have the effect of misleading the accused in which the trial will be set aside due to the defective charge; and secondly, defects which are immaterial and trivial and ought not to mislead the accused in which the trial will not be set aside.
In other words, what will determine whether the conviction will be upheld or set aside is the effect the defect had on the accused. Therefore if:
a) In the trial, the accused was prejudiced in the conduct of his defence; or
b) In the trial, the defect brought about the conviction of the accused person; or
c) In the trial, the defect so affected the proceedings that they fall short of the requirement that justice must not only be done but must manifestly be seen to be.
A conviction will be set aside for miscarriage of justice.
However, if despite the defect of the charge, the accused person is not so affected by the charge, then the conviction will be upheld on appeal. In Attorney-General of Western Region v. CFAO (1958) WRNLR 6, the appellant company was charged with unlawful occupation of land. The charge did not state the statute alleged to have been contravened. The appellant company and the magistrate presumed that the case was brought under the Crown Lands Ordinance. The magistrate convicted the appellant company. On appeal against conviction, the High Court held that failure to state in the charge the statute alleged to have been contravened by the appellant company was a material defect. Thus, the trial was vitiated and a retrial ordered.
However, where the defect in the charge is an error in stating the exact title of the enactment alleged to have been contravened by the accused, the defect is immaterial and the trial will not be set aside. In Ogbomor v. The State (1985) 2 SC 289, the accused 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 rejected the counsel’s contention. It held that the offence of armed robbery is known to law. It is contained in both the Criminal Code and in the Robbery and Firearms (Special Provisions) Act 1970. Thus, it held that there was an omission of the words “Special Provisions” on the face of the charge but the defect in the charge i.e. the misdescription of the statute was of a trivial and material nature, 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.
It should be noted that once a charge discloses an offence known to law, any defect in the charge shall not render it bad in law except the accused person was misled by the defect in the conduct of his defence – Ijeoma v. R. (1962) 2 SCNLR 157; Obumselu v. C. O. P (1958) SCNLR 464. click on any picture at right hand or left hand side for more insight.
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