Offences committed 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 CPCL. For example, in the case of burglary and stealing where it is difficult to state what time the offence was actually committed
RULE AGAINST MISJOINDER OF OFFENDERS
As a general rule, every person who is accused of an offence must be charged and tried separately for the offence alleged against him. 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 CPL; 221 CPCL and 151 ACJL.
Persons accused jointly of committing the same offence– When more than one offender jointly commit the same offence(s), such offence(s) is triable and chargeable jointly against such persons – Sections 155 CPL; 221(a) CPCL and 151 (a) ACJL. 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 (police officers) 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 CPL, and held that as the appellants jointly committed the assault, they were properly charged together.
Persons accused of committing different offences in the course of the same transaction. This exception is found in Sections 155 CPL; Section 221(d) CPCLand 151 (a) ACJL. Where two or more persons commit different offences in the course of the same transaction, they may be charged and tried together on the same charge sheet. As earlier highlighted, in determining when a criminal transaction begins and ends, in order to ascertain the offences that were committed in the course of the same transaction, the test to be applied was laid down by Fatayi Williams J.S.C (as he then was) in Haruna & Ors. v. The State (supra), to include consideration of: Proximity of time and place; or Continuity of action; or Community of purpose or design. In this case, the accused persons were alleged to have conspired together in Lagos to obtain payment in Bida, in Niger State using forged vouchers.
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 CPCL, and held that the offenders were properly charged together.
Persons accused of the same offence committed in the course of the same transaction – When more than one offender are accused of committing the same offence in course of same transaction, they may be charged together – Section 221(a) CPCL. There is no express equivalent in the CPL or ACJL but it can be implied having regard to the preceding paragraph.
Persons accused of committing an offence and persons accused of aiding, abetting or attempting to commit the same offence –Under Sections 155 CPL; 221(b) CPCL and 151 (b) ACJL all persons accused of committing an offence may be tried together with any other person accused of procuring, counselling, or aiding and abetting the commission of the offence. Persons attempting to commit the same kind of offence which another person has already committed can also 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. This is in accordance with the general principle of joint criminal liability contained in Sections 8,9,10 of the Criminal Code and Sections 78,79,80 Penal Code.
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 or retaining or assisting in the disposal or concealment of the subject matter of such property obtained as a result of the said offences – Section 155 CPL; 221(e) and (f) CPCL and 151 (c) ACJL. The only caveat here is that the offences must be in relation to one property. It doesn’t extend to acts of stealing, committed by one person, another act of receiving committed by another person in a different setting. Thus, where any more than one person commits any of the offences in relation to one property, they may be charged and tried together.
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 CPL or ACJL, but it is available under Section 221(g) CPCL. 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.
Notwithstanding all the above exceptions with respect to mis-joinder of offenders and mis-joinder of offences, the Court has a discretion considering the circumstances of the case to order separate trials for the accused person. Section 213 CPCL empowers the Ct to order separate trials for offences of like character committed by the same person.
EFFECT OF BREACH OF EACH RULE
Generally accused must have been myself by defect to have trial set aside: Ogunjobi v FRN (2013), section 166 CPL, 206 CPCL, 158 ACJL. CT will also look at whether it is something trivial or fundamental to decide whether to vitiate the trial: Compare A-G Western Region v CFAO (1958), Ogbomor v State (1985).
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 (at arraignment) 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. This is because the rule as to ambiguity is at this time of arraignment
BREACH OF THE RULE AGAINST DUPLICITY
On the effect of a charge defective by reason of duplicity, the consensus of judicial and academic opinion is that a conviction based on such count shall not be set aside for reason only that it violated the rule against duplicity, unless the accused person was misled or prejudiced in his defence or he was by reason of the duplicity not sure of what charge he was to face. So the Courts held in Onakoya v FRN (2002) 6 SC (pt 2) 220; Okeke v Police (supra); State v Gwonto (1983) 3 SC 62 contrasting the earlier decision in the older case of R v Achie (1947) 12 WACA 209. Awobotu versus The State (1976) 5 S.C. 49. Objection should also be raised immediately the charge is read over to the accused and not later
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 an accused person requires a separate trial, the counsel shall apply for such separate trial before the joint trial commences. 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. Therefore the trial shall not be vitiated unless there is manifest embarrassment or prejudice to any of the accused persons. In Mailayi & Anor. v. The State (1968) 1 All NLR 116, the accused persons were charged and tried together for culpable homicide punishable with death, abetment and unlawful assembly. They were convicted. They challenged their conviction on the ground that the trial judge should have ordered separate trials. Their appeal was dismissed.
EFFECT OF A DEFECTIVE CHARGE
Any defect in a charge (count) or the entire charge sheet can be amended in the course of a trial at any time before judgment is delivered. The Court is empowered to amend a charge before judgment and this amendment may take the form of addition, deletion, alteration or even substitution. Uket v Federal Republic of Nigeria (2008) FWLR (pt 411) 92; State v Olatunji (2003) FWLR (pt 155) 695.
Section 166 of the CPL 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 case 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 case 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:
In the trial, the accused was prejudiced in the conduct of his defence; or
In the trial, the defect brought about the conviction of the accused person; or
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 mis-description 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.
A defective charge is one that runs short of the principles/rules of drafting. That is, it does not comply with any of the rules of drafting charges. A trial on a defective charge does not render the trial void rather the court considers the effect of the defective nature of the charge on the accused.
This may take various forms e.g. deletion of errors, addition or inclusion of essential particulars that were advertently omitted, substitution of a correct section of the law for one incorrectly stated, etc. Uket v Federal Republic of Nigeria (supra); State v Olatunji (supra); Nigeria Airforce v James (2003) FWLR (pt 143) 257 Okwechime v Police 1 FSC 73 .
Thus, a defective charge may be amended provided that:
The defect is not incurable
The amendment is not intended only to bring the offence charged within the jurisdiction of the court – C. O. P v. Jinadu Ilorin(1965) NNLR 63
The amendment will not cause injustice to the accused person. In Attorney-General (Federation) v. Isong (1986) 1 QLRN, an information was filed against the accused person without the consent or direction of a High Court Judge. The charge was brought under the section, which only defines the offence in the Firearms Act 1966. The prosecutor applied to amend the charge. The court rejected the application for amendment on the ground that it would give the prosecutor an opportunity to re-try the accused person; it was therefore prejudicial to the accused since the information was not properly obtained (information was quashed)
Where the error to be amended is frivolous, the court may be reluctant to go through the process of amendment – Ogbomor v. The State (supra).
Amendment of a defective charge may therefore be made before the accused person has pleaded to the charge or after the accused person has pleaded to the charge but before judgment. Note in DURU v COP: charge allowed to be amended on the day reserved for judgment
Amendment of a charge before plea – Sections 162 CPL; 207 CPCL; and 154 ACJL.
Amendment to a charge can be done even before the accused person is called upon to enter his plea. It is often said that the leave of the court is not required to amend a charge if the accused has not pleaded to it but after the plea of the accused has been taken, leave is required and Section 162 of CPL is cited in support of that assertion as well as the case of Uguru v. The State (2002) 4 SC (Pt. 2) 13. While this is understandable in the light of the fact that before arraignment, the accused is not before the court and may not even be aware of the charge against him and hence cannot be prejudiced by the amendment, while there can equally be no inconvenience to the Court by the amendment. This clearly applies to the Magistrate Court in the South. For the Magistrate in the North, the question of applying to him for an amendment does not arise since it is the Magistrate who drafts the charge and gives directive for trial
However, it should also be pointed out that it is necessary to notify the Court of any such amendment. Furthermore, for trials before High Courts where leave of court was sought to prefer the charge and consent was sought and obtained to file the information after the Judge was satisfied that there was a prima facie case based on the proof of evidence had been made out, as is the case in the North and South respectively (exception of Lagos), it would appear that an amendment to the charge would equally require the Court’s consent especially to ensure that the amendment also satisfies the same requirement unless the new charge can be supported by the proof of evidence filed for the original charge. The prosecution may therefore seek leave of the trial court by an oral application, to amend a defective charge.
Therefore, when an accused person has not pleaded to a charge, leave of court may or may not be required to amend the charge. If it is a charge in the Magistrates’ Courts under the CPL, it is submitted that an entirely new charge may be substituted for the original charge. If it is a charge by way of information in the High Court under the CPL, an entirely new charge cannot be substituted for the original charge except a charge of a previous conviction of an offence or of being a habitual criminal or drunkard – Section 340(2) of CPL. This is because the consent of the judge was obtained to the original charge, and, unless the new charge can be supported by the proof of evidence filed for the original charge it would be necessary to obtain a fresh consent before the information can be filed.
Where a charge is amended before the accused person has been called upon to enter a plea, the court is not under any obligation to comply with the post amendment procedures because the accused has not pleaded to the charge before it is amended.
Amendment of a charge after plea – Sections 163 CPL; 208 CPCL; and 155 ACJL.
The trial court may also amend the charge suo motu. What this means is that, under the CPL, the court is to grant leave to amend the charge or to amend a defective charge at any time because it is the duty of the prosecution to draft a charge and not that of the court. Under the CPCL, it is the magistrate who drafts the charge and directs that the accused be tried by the court with jurisdiction. It is submitted that unlike under the CPL, a magistrate may exceed the bounds of mere amendment and frame an entirely new charge, if the new charge can be supported by the evidence adduced at the pre-trial stage.
However, where a criminal action is brought in the High Court by a charge drafted by a law officer by virtue of Section 185(b) of CPCL, the same rules of amendment as under the CPL applies. That is, the Judge cannot in the process of amendment frame an entirely new charge, independent of the original charge. In The State v. The Chief Magistrate Aboh-Maise, Ex-parte Onukwue (1978) 1 LRN 316, after the accused persons had pleaded guilty to a charge of affray, the Magistrate upon questioning, found that one of the accused persons assaulted the other. Consequently, he rejected the plea of the accused and framed a new charge of assault against him. The charge was preferred in the name of the Commissioner of Police but the Magistrate signed it. The accused persons brought an application to the High Court for the prerogative order of prohibition to prevent the Magistrate from trying him on the new charge. The High Court held that although a trial magistrate in amending a charge could frame or substitute an entirely new charge, the substituted charge must be sustainable under the original imperfect charge; the substituted charge merely continuing the life of the original charge. Thus, there must be a nexus between the substituted charge and the original charge. The substituted charge should bear the same charge number and be against the same person or persons. It cannot be an independent and separate charge, co-existing with the original charge. Thus, the court held that the magistrate did not merely amend an existing charge – he framed an entirely independent charge. The order of prohibition was granted.
The new charge must be similar to or bear a close relationship to the previous charge before it can be permitted by way of an amendment. In Okwechime v. Inspector-General of Police 1 FSC 73, after plea, the charge against the accused person was amended. The offence of receiving property, being a public officer in order to show favour, contrary to section 100 of the Criminal Code, was amended to section 99 of the Criminal Code. The accused was convicted. On appeal, the court held that in the process of amendment, a new charge or accusation could be substituted, and the appeal was dismissed. Also, in Elumelu v. Inspector-General of Police (1957) NRNLR 17, the charge sheet containing six counts of extortion was amended to five counts of stealing and one of extortion after the accused person had pleaded to the previous charge.
In the above cases, the amendments were possible because the new charges were related to the previous charges and continued the lives of the previous charges. To determine whether the substitution of a new charge or offence, for the original charge or offence would be permitted by way of amendment, the original charge has to be compared with the new charge sought to be substituted.
Whenever a charge is amended after the accused person had pleaded to it, the court must comply with the mandatory post amendment procedures laid down in Sections 163, 164 and 165 of CPL; and 208(2), 209, 210, and 211 of CPCL.
PROCEDURE FOR AMENDMENT OF CHARGES
Where an accused person has already pleaded to the charge before it is amended, the Prosecutor seeking to amend a charge may adopt any of the following two methods:
The prosecutor may make an oral application to amend the charge – this is sought orally to amend the charge. If the court grants it, it substitutes the prior charge and is corrected on the face of the defective charge, but if the amendment is of a serious nature it is doubtful that the court will grant such an amendment and as such, the original charge shall remain and the trial shall proceed upon it.
This method is adopted in cases where the offence is a minor one e.g. clerical errors, dates, etc.
The prosecutor may file a motion for amendment of the charge – the prosecutor may tender a written copy of the proposed amendment to the court and if granted by the court it is attached and becomes the charge. This is more advantageous in that it gives the other party notice of the amendment and, thus, time to scrutinise the amended charge as opposed to an amendment that is stated orally in court without prior notice of the other side, and this can be objected to – Section 155(3) ACJL.
The court at his own will may also amend a defective charge at any stage of the proceedings Attah v. The State (1993) 7 NWLR (Pt. 305) 257 at 287; Duru v. C.O.P (supra).It should however be noted that an amendment has a retrospective effect. Under Section 164(4) of CPL, the amendment to a charge relates back to the date of filing of the document containing the charge – Attah v. The State (supra).