Week 3 &4 Sources of Criminal Procedure Laws


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

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

An accused can only be charged under a law which creates and prescribed punishment for the offence that offence must be known to law. See section 36(12) CFRN; Aoko v Fagbemi; FRN v Ifegwu; Asake v Nigerian Army Council: the principle is also applicable in court martial; AGF v Isong; Bode George v FRN (2014) All FWLR (pt 718) 879. This can be found under Sections 151(3) CPL and 201(4) CPCL; 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) CPL, and section 201(4) CPCL 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 – Sections 151(4) CPL; and 201(5) CPCL. Thus the statute and section of the statute contravened (important that both are stated). In other charges except information, ‘punishable under section ….. Criminal Code’. Punishable is used because it is the punishment section and not the description of the offence section that is used. NB: there are certain circumstances where the same section defines and punishes the offence and that section is used. The problem is where a section defines the offence (say section 50) and there is no punishment but further down, there is a general punishment section (say section 100: where a punishment is not given, the person is punished for….), then use contrary to section 50 Criminal Code and punishable under section 100 Criminal Code). Other cases where section 50 defines the offence but section 51 gives the punishment for more than one offence, then you use both the description and punishment section (contrary to section 50 Criminal Code and punishable under 51 Criminal Code).

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. E.g. police officer signs if it is magistrate Ct in the South, law officer in High Court; magistrate Ct in the North, it is the magistrate.

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, 6th Edition defines it as, 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. Thus, 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) CPL. This rule unlike other rules is rigid and admits of no exception. The rule applies to counts of alleged offences and not to the entire charge sheet. A charge (count) must therefore be free from ambiguity, must be certain and should contain the following:



  1. The name of the accused person.

  2. The offence for which the accused person is charged;

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

  4. Particulars of the date and place where the offence was allegedly committed; and

  5. The person against whom or thing, if any, in respect of which the offence was committed;

A charge is thus bad for ambiguity where the particulars are omitted, wrongly stated or even stated in a disorderly manner. In Okeke v Inspector General of Police (1965) 2 All NLR 81 the Appellant was charged and convicted of two offences. In the judgment, the trial Magistrate stated that the accused person was charged under “some sections of the Criminal Acts.” On appeal, it was contended that this contravened the provisions of Section 151 (3) of the CPL, and that there was no law in existence known as the Criminal Acts. The contention was upheld and the conviction set aside. Also in AG Federation v Isong (1986) 1 QLRN 75 a charge framed was held to be defective for failing to state the penalty section of the statute of which the accused was said to have contravened. AG Federation v Isong: where leave/consent is required and it is not obtained, the trial is a nullity (so fatal to the trial).

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. And so 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 CPL, and 222 of CPCL 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 instead of the Robbery and Firearms (Special Provisions) 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.

In Osigwe v Police (1966) NMLR 212 a charge was challenged to be bad for ambiguity because the accused was charged under a presumably non existent law, the Criminal Code of the Federation and Lagos instead of the Criminal Code. On appeal, it was held that the defect was trivial especially as the appellant as well as his legal practitioner knew that it was the Criminal Code that was referred to.


THE RULE AGAINST DUPLICITY

The second rule of drafting charges is found in Sections 156 CPL, 212 CPCL and 152 ACJL Lagos.

Section 156 of the CPL for instance provides

For every distinct offence with which any person is accused, there shall be a separate charge and every such charge shall be tried separately except in such case mentioned in Sections 157 to 161 of this Act.

This rule addresses the count in the charge as in the case of ambiguity. Generally, a count in a charge sheet should contain only one offence. Therefore, the essence of the rule is that if a person commits more offences than one, say arson, assault and robbery, as a general rule he must be charged for each offence separately and must be tried separately for each offence. Charging the person for all three offences in one count offends the rule against duplicity. If the person is being charged for murder of different persons, cannot charge him in one count. Must have a count for each person killed.
In 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. Similar decisions were reached in Awobotu v. The State (1976) 5 SC 49; Adebayo v.  The State (1987) 2 NWLR 468 (Pt. 57).

The exceptions to the rule against duplicity are:


  1. Statutory Forms: the first exception to the rule against duplicity is contained in Sections 150 & 463 CPL; 200 CPCL, and 148(1) ACJL.  These sections provide to the effect that where charges are drafted in accordance with the forms set out in the schedule or appendix to the CPL and CPCL respectively, the charge would be good despite the fact it ordinarily offends the rule against duplicity by joining two offences together in one count. An example of a charge that joins two offences in one count is that found in Form 16 in the second schedule to the CPL where the offences of housebreaking and burglary were joined with that of stealing where a person entered into a dwelling house unlawfully and stole there. This was upheld in Willie John v. The State (1967) NMLR 101.

  2. General deficiency of money – This exception is provided for under Sections 152(2) CPL; 203 CPCL, and 148(1) ACJL. 

Section 152 (2) CPL for instance provides that

Where the accused person is charged with criminal breach of trust, fraudulent appropriation of property, fraudulent falsification of accounts or fraudulent conversion, it shall be sufficient to specify the gross sum in respect of which the offences alleged to have been committed and the dates without specifying particular items or exact dates and the charge so framed shall be deemed to be a charge of one offence within the meaning of Section 156 of the Act.

What this Section simply implies is that where a person is alleged with offences involving fraudulent or dishonest dealing with property especially, money committed over a period of time, the monies so misappropriated may be summed up and the person charged with stealing that gross sum instead of charging him distinctly for each offence of stealing as the prosecution may find it difficult if not impossible to ascertain exactitude, the specific date and time and amount involved in each case. Such charge will be good and considered as an exception to Section 156 CPL.

Although there appears to be no legal justification, this exception has been interpreted to relate to deficiency of money alone, and not other properties. In R. v.  Aniemeka (1961) 1 All NLR. 43 the accused was charged with stealing 59 boxes of cigarettes, stolen on 53 different dates. The conviction was set aside on the ground that the alleged offences being misappropriation of goods and not money, ought to have in separate counts and so the charge was bad for duplicity. And in Domingo v.  R. (1963) 1 All NLR 81; the charge against the accused related to stealing several goods valued at about N40,000 and he was convicted. His appeal was allowed on the ground that the charge being one of stealing goods, the charges ought to have been contained in separate counts and since it was goods, not money, it did not come under the exception.

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.

Also the money must be in the same currency. The charge must state the date of commencement of the offence and the date when it ended.


  1. Offences defined in the alternative – This exception relates to offences defined in the alternative and is found in Sections 154(5)(a) CPL and 150(5)(a) ACJL. The exception is to the effect that where a statute creates an offence but provides for the instances in which the offences can be committed, and there are indeed more than one way in which the offence can be committed, any one or more of these ways may contained and stated alternatively, in a single count and it wound not offend the rule against duplicity. For example, Sections 406 Criminal Code which provides for the offence of demanding property with menaces with intent to steal and provides the different ways in which the offence can be committed, it is not offensive to state the different ways alternatively in one count.

In Ogenyi v. Police (1957) NRNLR 140 the accused persons were charged with the offence of assaulting a Police Officer in the execution of his duty contrary to Section 356 (2) of the Criminal Code. The Section stated three alternative ways of committing the offence to wit, assault, resist or wilfully obstruct the Police Officer, these three ways were stated in one count and the accused persons were convicted. On appeal, it was held that the charge was not bad for duplicity. It is also pertinent to contrast the above situation from one where a section contains more than one offence, e.g. Section 98 Criminal Code, the different offences should be contained in different counts otherwise, the charge that would be bad for duplicity.
  1. 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.


  2. Overt Acts – This applies to acts of treason or treasonable felony. These offences are contained in Sections 37, 38 and 41 of the Criminal Code and 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. Thus, the charge could contain that they trained some men in Ghana, they were in possession of explosives etc.

RULE AGAINST MISJOINDER OF OFFENCES

The third rule of drafting charges is the rule against misjoinder of offences. Just like the rule against duplicity, the rule finds expression in the provisions of Sections 156 CPL; 212 CPCL and 152 ACJL. What this rule envisages is that 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. 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 the person is charged for all the offences in one charge sheet, the charge would be bad for mis-joinder of offences and would therefore be defective. Unlike the first two rules, this rule attaches to the entire charge sheet and not the individual count.

There are however exceptions to this rule which are contained in Sections 157 to 161 CPL; 213 to 216 CPCL and 153 ACJL. The exceptions are:


  1. Offences committed within 12 months – Section 157 CPL provides that any person accused of more than one offence, committed within 12 months, may 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. See also Sections 153(1) ACJL and 213 CPCL. 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.

  2. Different offences committed in the course of the same transaction – all offences committed by a person in the course of the same transaction may be charged together in one charge sheet. This is the thrust of Sections 158 CPL; section 214(1) CPCL and 153 (iii) ACJL. To come within this exception, the offences must be so connected as to form part of the same transaction. The test of what amounts to “course of the same transaction” was laid down by the Supreme Court in Haruna & Ors v. The State (1972) 1 All NLR (Pt. 2) 302 at 318 in the words of Atanda Fatayi Williams JSC (as he then was) in the following words:

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”.

Thus the test requires a consideration of three factors namely:


  • Proximity of time and place; or

  • Continuity of action; or

  • Community of purpose or design.

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. Thus in Onubaka v R 4 SC 267 the Defendant was charged with manslaughter and giving an unlawful injection and the Court upheld the charge. Also 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. See also The State v. Adamu (1966) NNLR 167.
  1. Offences comprising the same elements but 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 CPL. 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 even though both acts are offences under two different laws. Similarly a person can be charged with bigamy under the Criminal Code as well as under the Marriage Act. 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 CPL, 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.


  2. Offences comprising acts or omissions which by themselves or in conjunction with others, constitute a different offence. Acts constituting one offence but constituting a different offence when combined, may be charged together for offences so constituted – Section 160 CPL. 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 CPL 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.g. forging an LLB certificate to obtain admission to the law school would constitute the offence of uttering a forged document and procuring admission by fraud. A leading B to a house and forcefully removing B’s clothes and raping B and then detaining B for two weeks before she is rescued would constitute the offences of assault, wrongful confinement, rape and abduction

  3. Where it is doubtful which of several offences, the facts which can be proved constitute. Where it is doubtful which of several offences has been committed, offences suspected by facts available may be charged together in alternatives e.g. stealing, criminal misappropriation, criminal breach of trust, receiving stolen goods, obtaining by false pretences – Sections 161 CPL; 216 CPCL. He may be:

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

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

  3. 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, Inspector General of Police v Bakare (1957) WRNLR 123.



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