EXPLANATIO THE FORM AND CONTENTS OF A CHARGE

EXPLANATIO THE FORM AND CONTENTS OF A CHARGE

1. CHARGES 1 OUTCOMES 1. Explain the form and contents of a charge. 2. Explain and discuss the rules of drafting charges. 3. Explain prosecutorial authorities – State, State of Lagos, FRN, COP, IGP. 4. Explain the effect of breach of each rule.

2. WHAT IS A CHARGE? A charge is a document which informs a Defendant and the court of the offence alleged against him, the place, date of the alleged offence, the person or thing against whom the offence was allegedly committed and the particular provision of a written law that makes the action or omission an offence. This is in compliance with S. 36 (6) (b) of the CFRN 1999 . See also Ss 371 ACJL Lagos & 494 ACJA.

3. 2.0. Forms and Contents of a Charge The components of a charge are as follows: 1. Heading 2. Reference Number 3. Parties 4. Preamble (Where applicable) 5. Main Body 6. Date 7. Subscription

4. Forms and Contents of a Charge (Contd.) 1. Heading Every charge or information must be headed in the name of the court where the charge or information is to be preferred, e.g. IN THE HIGH COURT OF BAYELSA STATE IN THE YENAGOA JUDICIAL DIVISION HOLDEN AT YENAGOA OR

5. IN THE MAGISTRATES’ COURT OF BAYELSA STATE IN THE YENAGOA MAGISTERIAL DISTRICT HOLDEN AT YENAGOA OR IN THE FEDERAL HIGH COURT IN THE YENAGOA JUDICIAL DIVISION HOLDEN AT YENAGOA

6. Forms and Contents of a Charge (Contd.) 2. Reference Number Reference number must come immediately after the heading on the right-hand corner of the charge or information sheet. It must also appear in capital letters as in the heading, e.g. IN THE HIGH COURT OF BAYELSA STATE IN THE YENAGOA JUDICIAL DIVISION HOLDEN AT YENAGOA CHARGE NO:……………

7. Forms and Contents of a Charge (cont’d.) 3. Parties The parties must be stated immediately after the Reference Number and these are the prosecutorial authority and the defendant .

8. The prosecutorial authority in State offences in the High Court is “The State” except Lagos State where the prosecutorial authority is “The State of Lagos”. See s 249 AC J L Lagos . The prosecutorial authority in the Magistrates’ Courts whether the court resides in the South or the North is “Commissioner of Police”

9. The Prosecutorial authority for Federal offences will depend on who is instituting the proceedings: 1. If on behalf of the AGF it shall be in the name of “The Federal Republic of Nigeria”. See S. 268 (3) ACJA . 2. If it is instituted upon delegation by AGF either by a private practitioner or a Commission or Agency it shall be in the name of “The Federal Republic of Nigeria” S. 268 (3) ACJA .

10. Forms and Contents of a Charge (Contd.) 3. Where it is instituted by a police officer it shall be in the name of “Inspector General of Police” or “Commissioner of Police” as the case may be S. 268 (2) ACJA.

11. Parties are stated thus: BETWEEN THE STATE…………………………COMPLAINANT AND DO GOOD……………………………DEFENDANT Note that the offender is referred to as “defendant” in both the North and South as well as when he is being tried for a federal offence. See s 371 AC J L Lagos, s 2 ACJL Kano ; s 349 (1) ACJA.

12. Forms and Contents of a Charge (cont’d.) 4. Preamble This is only required when drafting an information to be preferred in the High Court (South). It comes immediately after the parties and must be in the lower case i.e. small letters. It is written thus:

13. Forms and Contents of a Charge (cont’d.) At the sessions of the High Court of Bayelsa State holding at Yenagoa on the 2 nd day of October, 2023 the Court is informed by the Attorney-General on behalf of the State that: DO GOOD (m) is charged with the following offences:

14. Forms and Contents of a Charge (cont’d.) 5. Main Body This refers to the head of offence. This comes immediately after the preamble where information is being drafted. Where the charge is not an information the offences being charged must come immediately after parties.

15. Forms and Contents of a Charge (cont’d.) The offences must be charged one after the other except where any of the rules of drafting allows that any two offences may be charged together on the same charge sheet. Every head of offence in an information must be in two paragraphs i.e. “Statement of Offence” and “Particulars of Offence”.

16. Forms and Contents of a Charge (cont’d.) 6. Date . Every charge or information must be dated. This comes immediately after the last offence has been drafted. Note that ACJA allow s the date to be placed before the preamble. See s 377 ACJA & Form 11 of the 1 st Schedule to ACJA.

17. In practice however, it comes after the last offence has been drafted and it is written thus: Dated this……day of ……, 2023. 7. Signature Every charge or information must be signed by the framer of the charge. It comes immediately after the date and should appear at the bottom right-hand corner of the charge or information, e.g.

18. Forms and Contents of a Charge (cont’d.) Signed Timi Fineface Esq. Senior State Counsel For: Attorney- General Bayelsa State Ministry of Justice

19. 1.0. Points to note 1a. The section which prescribes punishment for the offence being charged must be referred to in the count bearing the offence on the charge sheet. E.g. in charging the offence of perjury s 118 CC must be used instead of s 117 CC which only defines the offence.

20. Points to note (cont’d) 1b. Where an offence is defined in one section and punishment for the offence is prescribed in that same section, then the charge sheet must state that section only. 1c. Where an offence is defined in one section and penalty is prescribed in another section, penalty section should be used. However, by s 194(3) ACJA, the law and the punishment section must be stated in the charge.

21. Where a section of the law defines the offence but punishment for that particular offence and other offences are jointly stated in a separate section, the charge sheet shall state both the definition section and penalty section.

22. Points to note (cont’d.) 2. The Reference Number on a charge sheet to be used before any court in the North, South , and Federal Courts is called “Charge No.”

23. Point to note (contd.) 3. * Every head of offence is referred to as “Count” on a charge or information to be used in the Magistrate or Federal Courts and High Court in the South e.g. “Count 1” or “Count One” or “First Count” while it is referred to as “Charge” in the North e.g. “Charge 1” or “Charge One” or First Charge.

24. Points to note cont’d See however 2 nd & 3 rd Schedule to ACJL Lagos ; 2 nd & 3 rd Schedule to ACJA . 4. A charge to be used in the High Court (South) is referred to as “Information” while it is referred to as “Charge” in the Magistrates Court (South), Federal High Court, Magistrates or High Court (North).

25. Points to note (cont’d.) 5. Every count on an information must have two paragraphs i.e. “Statement of offence” and “Particulars of Offence” whereas every head of offence referred to as “Charge” in the Magistrates court, South, High court North or Federal High Court must be in a single paragraph containing both the statement and particulars of offence.

26. Points to note (cont’d.) 6. A charge to be used in a Magistrate’s Court in the South may be drafted by the Police whereas only a Magistrate can draft a Charge to be preferred in a Magistrate’s Court in the North. 7. The use of preamble is only necessary when drafting an Information to be preferred in the High Court in the South ; it is not required for any other form of charge.

27. 3.0. Rules of Drafting Charges The rules guiding the drafting of charges are four and they are: 1. The rule against misjoinder of offenders. 2. The Rule against misjoinder of offences. 3. The Rule against duplicity and 4. The rule against ambiguity.

28. 1. Rule Against Misjoinder of Offenders This rule applies to the charge sheet and not to the count. The General Rule: Every offender must be charged and tried separately for the offence committed even when the offence is committed jointly with others.

29. Rules of Drafting Charges (cont’d.) Exceptions: 1. When two or more persons jointly commit an offence, all the offenders may be charged and tried together on the same charge sheet for that same offence. See s 208 ACJA; s 151(a) ACJL Lagos, s 215 ACJL Kano ; Okojie v. C.O.P. [1961] WNLR 97.

30. Rules of Drafting Charges (cont’d.) Example: If ‘A’ and ‘B’ jointly stole Miss Ann’s Handbag, ‘A’ and ‘B’ may be charged together on the same charge sheet and under the same count for the offence of stealing.

31. 2. When two or more persons are accused of different offences which were committed in the course of same transaction, all the Defendants may be charged and tried together on the same charge sheet though, each person will be charged for the offence he committed under a distinct count in the same charge sheet. See s 208 ACJA; s 151(a) ACJL Lagos, s 215 (c) ACJL Kano ; Haruna v The State [1972] NSCC 550.

32. Example: ‘A’ and ‘B’ jointly agreed to beat up ‘C’. If in the course of the beating by both ‘A’ and ‘B’, ‘A’ removed N5,000 from ‘C’s pocket without the knowledge of ‘B’, both ‘A’ and ‘B’ will be charged together under the same count for the offence of assault as well as battery while ‘A’ alone will be charged under a different count on the same charge sheet for the offence of stealing.

33. The test of what amounts to ‘course of the same transaction’ as laid down in Haruna’s case is: “Whether two or more acts constitute the ‘same transaction’ depends on proximity of time and place, continuity of action and community of purpose or design relative to the particular acts…thus in order to constitute same transaction, all the acts from the very beginning should be either in contemplation or should form the component parts of a whole”.

34. Rules of Drafting Charges (cont’d.) Note however that no matter how proximate the commission of two or more offences may be, it must be shown that the offences are connected by a string which is continuity of action.

35. Rules of Drafting Charges (cont’d.) 3. When a person is accused of committing an offence and another of abetting or being accessory to or attempting to commit such offence, the Defendants may be charged and tried together on the same charge sheet but under different counts. See s 151 (b) ACJL Lagos, s 215 (b) ; s 208 (b) ACJA; Patrick Njovens & Ors v The State [1973] NNLR 76.

36. Rules of Drafting Charges (contd.) Example: ‘A’ being aware of ‘B’s escape from a lawful custody provides ‘B’ with shelter to shield ‘B’ from arrest, both ‘A’ and ‘B’ may be charged together for the offences of screening and escape from lawful custody respectively on the same charge sheet but under different counts.

37. 4. When a person is accused of any offence of theft, criminal misappropriation, criminal breach of trust and another of receiving or retaining or assisting in the disposal or concealment of the subject-matter of such offence, the Defendants may be charged and tried together on the same charge sheet. See s 151 (b) ACJL Lagos, s 215 (e) ACJL Kano, s 208 (e) & (f) ACJA; Patrick Njovens v. The State.

38. Rules of Drafting Charges (cont’d.) Example: ‘A’ stole a Hp laptop and ‘B’ bought the laptop from ‘A’ at a price lower than the market value of the laptop knowing or having reasons to know that the laptop was stolen. Both ‘A’ and ‘B’ may be charged and tried together on the same charge sheet for the offences of stealing and receiving stolen property respectively on the same charge sheet but under different counts.

39. Note that for the offenders to be charged together in the same charge sheet, the offences must be related to each other. This means that the commission of one of the offences depends on the other e.g. stealing and receiving stolen property. See Patrick Njoven’s case. Note also that the Court has the power to order separate trial, on application by defence , the exceptions notwithstanding. See Mailayi & A nor v The State (1968) ANLR 117.

40. 2. The Rule Against Misjoinder of Offences. This rule applies to the charge sheet and not to the count. General Rule: Where a person is accused of several offences he must be charged and tried separately for each of the offences otherwise the charge will be bad for misjoinder of offences. For instance see ss 152 ACJL Lagos, 216 ACJL Kano & 209 ACJA.

41. Rules of Drafting Charges (cont’d.) Exceptions : 1 . Where a person is accused of committing several offences within a period of 12 months, any three of such offences may be selected, charged and tried together on the same charge sheet notwithstanding that the offences were not committed in the course of same transaction. See s 153 ( i ) AC J L Lagos ; s 216 (a) ACJL Kano, s 209 (a) ACJA.

42. Example: ‘A’ stole some money belonging to ‘B’ in March 2018; assaulted ‘X’ in April 2018; raped ‘Y’ in May 2018; killed ‘Z’ in August 2018; led a riot in September 2018; and drove while drunk in February 2019, ‘A’ may be charged and tried for any three of the offences on the same charge sheet.

43. Rules of Drafting Charges (cont’d.) 2. Where a person is accused of committing several offences which are so connected as to form part of same transaction all the offences may be charged and tried together on the same charge sheet. See s 153 (iii) ACJL Lagos, s 218 ACJL Kano, s 209 (c) ACJA .

44. Note that this rule does not limit the framer of the charge under this rule to any particular number of offences. All that he is required to do is to have regard to: i . proximity of time and place; ii. Continuity of action; and iii. Community of purpose See Onubaka v. Queen, 4 FSC 267; s. 153 (iii) ACJ(R&R)L; s. 209 (c) ACJA .

45. Example: ‘A’ entered ‘B’s apartment in his absence and removed the key to a Toyota Land Cruiser belonging to ‘B’s employer, ‘A’ used the car to rob ‘C’ and while trying to facilitate his escape he knocked down ‘D’ who died instantly. ‘A’ may be charged and tried on a single charge sheet for the offences of house breaking, trespass to property, robbery and manslaughter.

46. Rules of Drafting Charges (cont’d.) 3. Where a person is alleged to have committed offences which comprise same elements but are constituted under different laws, the person may be charged and tried for all the offences on the same charge sheet under the different laws in which the offences have been constituted. See s s 219 ACJL Kano, 212 ACJA .

47. Example: ‘A’, a taxi driver drove dangerously on the Lagos-Ibadan Expressway and had an accident whereupon one of the passengers died. ‘A’ may be charged for the offence of causing death by dangerous driving under the Federal Highway Act and manslaughter under the Criminal Code on the same charge sheet. Note that the Defendant can only be convicted and sentenced for one of the offences. See Elliot v COP [1960] WRNLR 182

48. 4. Where there is doubt as to which of the several offences created by law may be established by the existence of a single act or series of acts or omissions of which a person has been alleged, the person may be charged and tried on a single charge for all or any one or more of such offences or any or all the offences in the alternative. See s 214 ACJA; Azie v The State [1973] 3 SC 149

49. Rules of Drafting Charges (cont’d.) Example: ‘Y’ is accused of series of acts which may amount to sexual harassment, indecent assault and rape. If the prosecutor is in doubt as to which of the three offences the series of acts could establish, ‘Y’ may be charged and tried on a single charge sheet for all the offences in the alternative.

50. Students should read the following exceptions to the rule against misjoinder of offences: 1. Acts or omission which respectively constitute an offence and also constitute an offence when some or all of the acts or omission are combined. 2. Acts which create doubt as to when the offence which they constitute was committed.

51. General Rule: Every distinct offence with which a person is charged must be contained in a distinct count or charge. See s 152 ACJL Lagos ; s 209 ACJA. This rule applies to each count of offence and not to the charge sheet. This means that each count in a charge sheet must disclose one offence only. 3. Rule Against Duplicity

52. Exceptions 1. Statutory exception. Some statutes permit joining of two or more offences in a single count. S ections 1 46 A C J L Lagos, 193 ACJA provides that charges may be as in the forms set out in the 2 nd S chedule of th e Law/ Act and may be modified in such respect as may be necessary to adapt them to the circumstances of each case.

53. S ection 1 46 A C J L Lagos permits the use of forms and precedents contained in the S chedules to L aw , subject to variations as circumstances of a particular case may require. Example: If ‘A’ is accused of burglary and stealing in Lagos State, the two offences may be contained in a single count and the charge will not be bad for duplicity. It may be drafted thus:

54. COUNT 1: STATEMENT OF OFFENCE Burglary contrary to s 411 and stealing contrary to s 390 (4)(b) of the Criminal Laws of Lagos State. PARTICULARS OF OFFENCE Stone Face (m) on the 4 th of April 2019 at No. 3 Alomo Road, Ikoyi in the Lagos Judicial Div ision broke and entered the residential apartment of Mr. Ojo at 8pm with the intent to steal and stole a Gucci wristwatch belonging to Mr. Ojo .

55. In Willie John v The State (1967) NMLR 101, the Supreme Court held that there was nothing wrong in charging the offences of housebreaking and stealing in different counts but that the usual practice is to join the two offences in one count in accordance with form 16 of CPL. In so doing, the drafter has not offended the rule against duplicity. The Supreme Court in Humbe v State (1974) 5 SC 27 upheld the use of prescribed forms.

56. General deficiency of money over a period of time: Where a person is accused of breach of trust or criminal misappropriation of money or fraudulent falsification of accounts or fraudulent conversion at different times over a period of time he may be charged in a single count or charge for all the offences without stating the particular date when each of the acts constituting the offence was carried out.

57. See The Queen v Ugwu [1962] 1 All NLR 64. Note: i . The offence must have been committed against same person. ii. The date within which the offence was committed must be stated in the count. iii. The gross sum in respect of which the offence is alleged to have been committed must also be stated in the count.

58. Example: While auditing the account of ‘X’ company it was discovered that various sums of money totaling N20,000,000 were taken at different times by ‘A’ being the manager of ‘X’ company. ‘A’ may be charged in a single count for all the acts constituting the offence without stating the specific dates when what amount was taken, e.g.

59. Rules of Drafting Charges (cont’d.) ‘ A’ between May 2015 and March 2016 at ‘X’ Company Limited located at No. 4 Akin Adesola Street, Victoria Island, Lagos in the Lagos Judicial Division while entrusted with money belonging to ‘X’ Company Limited fraudulently converted for your use various sum of money totaling N20,000,000.

60. This exception applies to only misappropriation of money. It does not apply to other kinds of misappropriation such as goods. In R v Aniemeke (1961) All NLR 43, it was held that the offences alleged, being misappropriation of goods (59 boxes of cigarettes) as distinct from money, ought to have been contained in separate counts. The charge was held to be bad for duplicity.

61. Rules of Drafting Charges (cont’d.) 3. Identical offences committed in the same transaction: Where it is alleged that a person committed identical offences in the course of same transaction, all the identical offences may be charged in a single count and it will not be bad for duplicity. This exception is a creation of case law. See Police v. Oyewusi [1952] WRNLR 281

62. Rules of Drafting Charges (cont’d.) Example: ‘A’ corruptly demands money from each of three persons at the same time for the purpose of attending to their common interest, ‘A’ may be charged in a single count for all the acts of corruptly demanding money from each of the three persons.

63. 4. Overt acts in an offence of treason or treasonable felony: Overt acts in an offence of treason or treasonable felony may be charged together in a single count. See R. v Omisade [1964] 1 All NLR 233. Overt act means outward act, however innocent in itself, done in furtherance of a conspiracy, treason, or criminal attempt. An overt act is usually a required element of these crimes- R. v Omisade .

64. 4. Rule Against Ambiguity and Uncertainty This rule states that where any of the requirements of a valid charge or information is violated such charge or information is bad for ambiguity or uncertainty.

65. Rules of Drafting Charges (cont’d.) Example: A charge that fails to give a Defendant a clear description of who is being charged or the precise law under which the Defendant is to be punished or a clear description of the offence that is being charged is said to offend the rule against ambiguity. See Okeke v IGP [1965] 1 All NLR 506.

66. 4.0 Effect of Breach of the Rules of Drafting The general rule is that no error in stating the offence or the particulars required to be stated in the charge and no error to state the offence or those particulars shall be regarded at any stage of the case as material unless the Defendant was infact misled by such error or omission – ss 158 ACJL Lagos and 220 ACJA.

67. Effect of breach of the Rules of drafting (cont’d) A charge that is in breach of the rules of drafting is a defective charge. A conviction that is founded on a defective charge may be quashed on appeal unless it is shown that the defect is not material enough to occasion a miscarriage of justice or to mislead the accused person.

68. Example, a charge that is framed on a non-existent law is defective and any conviction based on such charge will be quashed on appeal; a conviction that is based on a charge that is bad for duplicity may be quashed on appeal; a charge that offends the rule against misjoinder of offences may be quashed on appeal only if the accused is confused by the defect.

69. It is not in all cases where the charge is held to be bad for duplicity that the conviction will be quashed or set aside. In Okeke v Police (1948) 1WACA 363 the appellate court agreed with defence counsel’s submission that the charge was bad for duplicity but held that the defect did not occasion miscarriage of justice.

70. But in R v Chima 10 WACA 223, the Defendant was alleged to have killed her twin babies and was convicted on a single count of murder. It was held on appeal that the charge was bad for duplicity.