Week 3 &4 Sources of Criminal Procedure Laws


APPLICATION FOR CONSENT TO FILE AN INFORMATION

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APPLICATION FOR CONSENT TO FILE AN INFORMATION

I am the Director of Public Prosecution in the Lagos State Ministry of Justice and I hereby apply for consent to file an information on a charge of stealing against one Mr AGD
Investigation into the case has been concluded and all the witnesses that the prosecution intends to call in proof of its case are available. Attached to this application are the following documents:


  1. A copy of the proposed Information;

  2. The unedited statement of the alleged offender;

  3. The proof of evidence; and

  4. List of Exhibits to be relied upon.

This application is made on behalf of the Attorney General of Delta State. No previous application for consent has been made and I have utmost belief in the case against the alleged offender.

NB- P.343(CRIMINAL LIT PAST QUESTIONS)- variation(where a previous application was refused by another judge).

Yours faithfully,


Ndu Gabriella

Director of public prosecution


IN THE HIGH COURT OF BORNO STATE

IN THE BORNO JUDICIAL DIVISION

HOLDEN AT BORNO

CASE NO:……

BETWEEN:

THE STATE ………………….. COMPLAINANT/ APPLICANT

VS.

XYZ………….. ACCUSED PERSONS

MOTION EX-PARTE

BROUGHT PURSUANT TO SECTION 185(B) OF THE CRIMINAL PROCEDURE CODE AND RULE 3(1)AND(2) OF THE CRIMINAL PROCEDURE(APPLICATION FOR LEAVE TO PREFER CHARGE )RULES 1970 AND UNDER THE INHERENT JURISDICTION OF THIS COURT

TAKE NOTICE that this Honourable Court will be moved on the ……… day of ……….. 2014 at the Hour of 9O’Clock in the forenoon or so soon thereafter on the application of the complainant on behalf of the State praying for the following:

1.AN ORDER granting leave to prefer a Charge of Stealing against the accused persons in the forms and terms of the proposed charge sheet hereby exhibited as “annexure A

2. AND FOR SUCH ORDERS OR FURTHER ORDER as this Honourable Court may deem fit to make in the circumstances

DATED THIS ………. DAY OF ……..2014

………………………….

GABRIELLA NDU

DIRECTOR OF PUBLIC PROSECUTION

MINISTRY OF JUSTICE, BORNOSTATE.

FOR:ATTORNEY GENERAL, BORNO STTE

NB- WHEN DOING THE MOTION EXPARTE FOR CONSENT IN THE SOUTH- BRING IT UNDER THE S.363 OF CPL AND THE INDICTMENTS PROCEDURE RULES 1970.

xxxxxxxxx…………………………………………………………………………………………………

Also don’t forget that affidavit is required.
IN THE HIGH COURT OF KWARA STATE

IN THE ILORIN JUDICIAL DIVISION

HOLDEN AT ILORIN

CASE NO: KW/IL/02/07

BETWEEN:

THE STATE……………………………………………..COMPLAINANT

AND

BUBA SULE…………………………………………………….ACCUSED
APPLICATION FOR LEAVE TO PREFER A CHARGE IN THE HIGH COURT UNDER SECTION 185 (b) OF THE CRIMINAL PROCEDURE CODE AND RULE 3 (1) AND (2) OF THE CRIMINAL PROCEDURE (APPLICATION FOR LEAVE TO PREFER A CHARGE IN THE HIGH COURT) RULES, 1970.
WHEREAS:


  1. The above named accused person was arrested for the offence of culpable homicide punishable with death under Section 221 of the Penal Code.

  1. There is sufficient evidence to justify the accused person being put on trial for the said offence.

  2. There has been no previous application made to this court under Section 185 (b) of the Criminal Procedure Code or any other proceedings under Chapter xvii of the same Criminal Procedure Code.

  3. It is desirable to prefer this charge without first holding a Preliminary Inquiry to expedite the trial of the accused person and avoid the delay necessarily involved in the interest of justice.
  4. The application is accompanied by the proof of evidence of the witnesses the prosecution intends to call in support of the charge at the trial of this case.


  5. The case disclosed by the proof of evidence is to the best of my knowledge, information and belief, a true case.

  6. This application is made on behalf of the Attorney –General of Kwara State of Nigeria by virtue of Section 7 of the Criminal Procedure Code Law.

NOW THEREFORE, I Ndu Gabriella, the Director of Public Prosecutions in the Kwara State Ministry of Justice, Ilorin do hereby apply for leave of the Honourable court to prefer the following charge against the accused person.

DATED THIS…………………..DAY OF……………………………..2014.

………………………….

NDU GABRIELLA.

DIRECTOR OF PUBLIC PROSECUTIONS

KWARA STATE MINISTRY OF JUSTICE


WEEK 8: CHARGES – important for exams

MEANING OF CHARGE

Every person who is charged with a criminal offence shall be entitled to be informed promptly in language he understands and in detail the nature of the offence: Section 36(6)(a) CFRN; Timothy v FRN (2008) All FWLR (pt 402) 1136. The main purpose of charge is to give accused notice of the case against him: Odeh v FRN (2008) FWLR (Pt 424) 1590.



Section 2(1) of the Criminal Procedure Act (CPL) defines a charge as the statement of offence or statements of offences with which an accused is charged in a summary trial, before a court. The Criminal Procedure Code (CPCL) on its part does not define a charge in any section but rather prescribes the form for charges in Section 200.

The definition of charges under the CPL as has been argued, and rightly too, is defective for two major reasons. One, the definition of charges in Section 2 (1) CPL as relating only to summary trials is misleading as charges also relate to trials by information. Even the CPL itself in Sections 339 as well as the prescribes forms contained in the schedule to the Act, make charges applicable to trials by Information.

Accordingly, Section 375 of the ACJL Lagos defines charge as the statement of offence or statements of offences with which an accused is charged in a trial whether by way of summary trial, or by way of trial by information before a High Court or any court or tribunal established by law.
Secondly, the definition of charge as relating only to statement(s) of offences accords only with the provisions of Sections 156 & 304(2) of the CPL as well as the definition of charge given in Edun v Inspector General of Police (1966) 1 All NLR 17 as a “count of accusation of an offence.”
A charge certainly means more than that. A charge also means the document in which the offences with which a person is charged are contained. This latter definition, upheld by the Courts in Adegbite v COP (1965) NMLR 432 as well as Edun v Inspector General of Police (supra) also accords the generally accepted usage of the term charge. This explains why text book writers list the contents of a charge to include heading, reference number, parties, preamble, the count (charge) etc.

As the Supreme Court held in Edun v Inspector General of Police (supra): Charge in the CPL may mean, as in Sections 162 and 163 the whole document which may contain one or more counts of accusation, or merely, as in Section 156, a count of accusation.


This document containing the offences with which an accused is charged is more commonly called charge sheet.

If an offence began in one State and was completed in State B, both States High Courts have jurisdiction over the offence. See HARUNA V. THE STATE and PATRICK NJOVENS V. THE STATE.


FORMS AND CONTENTS OF CHARGES (CHARGE SHEETS)

Section 150 of the CPL prescribes the form of charges in the following words “charges may be as in the form set out in the second schedule to this Act and may be modified in such respects as may be necessary to adapt them to the circumstances of each case”.
The equivalent provision of the CPCL containing basically similar words is Section 200 of CPCL while that of the ACJL is in Section 146. The salient point to note in all the provisions is that the forms are not sacrosanct, as the laws each provide that necessary modifications are permissible to adapt them to the peculiar circumstances of each case.
Generally, charge sheets take different forms depending on different factors. Firstly, whether it contains a charge drafted under the provisions of the CPL or CPCL, 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.

In the High Court in the South, it is referred to as an information (also in Adamawa and Taraba states) – NB information is also a charge. In the magistrate court in the South and the courts in the North, the Federal High Court and National Industrial Court, it is referred to as a charge. Police draft charges in the magistrate court in the South, in the North the magistrate drafts the charges. Introductory part is required in the North. There is usually 3 paragraphs in the magistrate Court in the North (introduction, body of the charge and the direction: s160(1) CPCL: magistrate in the Court drafts and signs the charge). The 3 paragraphs is not applicable in the High Court in the North. In the High Court in the North, it is just one paragraph (section 200 & 201 CPCL) In the magistrate court in the South, it is just the body of the charge (no need for introduction). Same applies to FHC, NIC

Every head of offence is referred to as a count in the South and a charge in the North. Where head of offence contains more than one count/charge, it must be numbered serially.

However, in the High CT in the South, there are 2 paragraphs (section 337 & 338 CPL, 251 ACJL: statement of offence and particulars of offence – 2nd and 3rd schedule CPL). In the FHC and NIC and High Ct in the North only one paragraph.

Note: for Federal High CT, it is the CPL that is applicable. For High Ct of the FCT, it is the CPCL Act that is applicable.

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 CPL provides that every information shall bear a heading whilst there is no such provision in the CPCL. But the same procedures apply. It is called “judicial division” in High Courts, and “magisterial districts” in Magistrates’ Courts.


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 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 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. In Lagos State, it is The State of Lagos

It should be noted that Section 1 of CPL uses the expression “defendant” to mean any person against whom a complaint of a criminal nature is made while section 1 of the CPCL 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 the Commissioner of Police (C.O.P.) in a complaint while in the High Courts, the Attorney-General is represented as State, and in Federal High Courts, Attorney-General of the Federation is represented as the Federal Republic of Nigeria.


4) PREAMBLE

The requirement in this stage does not apply to all charges. Thus the following can 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:


  1. 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

  2. Each allegation of offence is stated in two paragraphs namely: this should be done separately for each count.

  1. STATEMENT OF OFFENCE: offence as named by the law, the relevant law and the law it contravenes (stealing contrary to section….. Criminal Code, Laws of Ondo State). As a general rule, for an information, contrary to and not punishably by. However, it is still the punishment section and not the description section that is used

  2. PARTICULARS OF OFFENCE: the other things that gives the defendant the total information: (name of the accused, alias is permitted but not mandatory date of commission of offence, place of commission of offence, the person against whom offence is committed, the property etc)

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 statement of offence and particulars 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 CPCL (but charges are filed by way of information in Taraba and Adamawa States – The CPCL (Amendment) Edict No. 8 of 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. The alleged charges are then set out in single paragraphs for each count. Here, no statement of offence and particulars of offence. There is also no preamble.

NB: in the Federal High Court, FCT; the parties is the Federal Republic of Nigeria v ….. in other states, The State is used. Signed by the law officer of AG of the Federation or law officer for the AG of the state respectively


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 CPCL, the Magistrate drafts charges after taking evidence from the prosecution – Haruna v. Borno Native Authority (1967) NNLR 19. The charge sheets used for trials at Magistrates Courts in Northern States has three parts namely:


  1. The introductory part

  2. The main body – counts

  3. 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: 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 is the main part of the Charge Sheet and contains the counts.



CONTENTS OF A CHARGE (COUNT)

A charge must contain the following particulars: ADPOPSS



  1. Name of the accused persons; A

  2. Date of the commission of the offence; D

  3. Place of the commission of the offence; P
  4. Statement of the offence committed, that is, the offence which the accused is charged with; O


  5. Name of the person and/or thing against whom or in respect of which offence was committed; P

  6. The written law and section of the law against which the offence is said to have been committed; S and

  7. Signature of the person drafting the charge. S

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 CPL; and Section 202 CPCL. Counts or heads of charge must contain full name of the accused, alias is permitted but not mandatory. If in magistrate court, you use ‘that you (name). If in the High Court, just state the name.


DATE OF THE COMMISSION OF THE OFFENCE

The charge is to contain particulars of time – section 152(1) CPL; and section 202 CPCL. The date the offence was committed must be stated if it is of essence in proving the offence – section 152(2) CPL. 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 CPL 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 7th 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 the offence of housebreaking from burglary (the difference between A. M – day, and P. M – evening). Also can use between certain periods.


PLACE OF THE COMMISSION OF THE OFFENCE

A charge sheet must contain the place the alleged offence is said to have been committed – Sections 152(1) CPL; and 202 CPCL. State the exact place, house number, street name, town, including 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 – Sections 201(1) CPCL; and 151(1) CPL. If the written law creating the offence gives it any specific name the offence should be described in the charge by that name only – Sections 201(2) CPCL and 151(1) CPL. 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 – Sections 201(3) CPCL; and 151(2) CPL. And for this purpose, the offence should be stated in its ordinary name and not its technical name – Section 152(3) CPL. 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 CPL 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.

The offence must be stated in very clear terms. Charge must therefore disclose the essential ingredients of the offence: Timothy v FRN (supra).



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 – Sections 202 CPCL and 152(1) CPL. 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.

Important to state what is stolen or who it is stolen from because if you steal from your employer, the punishment is different from just stealing (e.g. not charged under 390 but 390(6) Criminal Code). Punishment different if you steal a will, public document etc).

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. Also include the weapon used. 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) CPL. 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) CPL, 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) CPL; R v. Eson 11 NLR 29.




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