Week 3 &4 Sources of Criminal Procedure Laws


PROCEDURE AFTER AMENDMENT OF CHARGES

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PROCEDURE AFTER AMENDMENT OF CHARGES

The procedure to be complied with by the trial courts after a charge has been amended are as follows:



  1. Endorsement of amendment note – The order for amendment shall be endorsed on the charge. The court must endorse a note of the order of amendment on the amended charge, which must be substituted for the original charge. It must be deemed to be the original charge – Sections 164(4) CPL; and 156(4) ACJL. In C.O.P v. Alao (1959) WRNLR 39, a charge was amended during the trial. The order of amendment was not endorsed on the amended charge. On appeal against conviction, it was observed that it is essential to endorse an amended charge, because an omission to do so may vitiate the proceedings.

  2. Reading and explanation of an amended charge – The new charge must be read and explained to the accused person and a fresh plea taken from the accused to the amended charge– Sections 163 and 164 CPL; 208(2) CPCL; and 156(1) ACJL. In Youngman v. C.O.P (1949) 4 FSC 283, the accused person was charged with indictable offences and was convicted. On appeal against his conviction, the accused contended that, inter alia, that failure by the court to obtain a fresh plea and consent rendered his trial and conviction null and void. The Supreme Court allowed the appeal on the ground that failure to obtain a fresh plea and consent from the appellant, after the charge was amended, was contrary to sections 163 and 164(1) of the CPL.
  3. Taking of fresh plea by the accused. - The requirement of a fresh plea to a charge after an amendment is also compulsory in criminal trials and tribunals. In Okosun v. The State (1979) 3 & 4 SC 36, the accused was tried by a Robbery and Firearms Tribunal for the offence of robbery. During the trial, the charge was amended. The original charge stated that the accused robbed the complainant of a tape recorder. The charge was amended and ‘record player’ was substituted for ‘tape recorder’. The accused was convicted. On appeal against conviction, it was submitted that sections 163 and 164 of the CPL applied to tribunals, and the tribunal had failed to comply with these statutory provisions. The Supreme Court accepted counsel’s contention and held that failure to obtain a fresh plea after the amendment was fatal to the trial and that the trial was null and void and of no effect. The appeal was allowed.


However, the requirement of a fresh consent to an amended charge of indictable offences is only applicable in Magistrates’ Courts trials in Southern Nigeria – Section 304 CPL; s156 ACJL Also, in the South, a charge sheet may contain an indictable or non-indictable offence in the same charge sheet. If the charge of indictable offence is amended, a fresh plea and consent must be obtained – Jones v. C.O.P (1960) 15 FSC 38, the Court allowed the appeal and held that the Magistrates’ Courts ought to have obtained a fresh consent on the amended indictable offence. Where it is non-indictable offence, it requires no consent. Therefore, if the charge of non-indictable offence is amended, the court can only obtain a fresh plea but not a fresh consent because the charge amended is not one requiring consent – Edun v. C.O.P (1966) 1 All NLR 17, the accused was charge for robbery and taking ballot boxes without authority. The latter offence being one triable in the Magistrates’ Courts without consent. The accused was convicted. On appeal, the Supreme Court dismissed the appeal and held that the expression ‘charge’ in section 304 of CPL, does not mean the whole document upon which the accused is arraigned, but a statement of an offence. Therefore, since the statement of offence or count amended is one triable summarily without consent, it was unnecessarily to obtain a fresh consent after the amendment.
  1. Consent of the accused – The court must ask the accused whether he is ready to be tried on the amended charge – Section 164(1) of CPL. The CPCL does not have such provision (in situations where accused had consented to be trialled by the magistrate court)


  2. Adjournment – The accused and the prosecutor must be given the option of an adjournment if, in opinion of the court, proceeding immediately with the trial after the amendment would prejudice either of them. That is, either the accused or the prosecutor shall be given adjournment or a new trial order if proceeding immediately with the trial shall prejudice the accused in his defence or the prosecutor in the conduct of his case – Sections 164 (2) & (3) CPL; 209 & 210 CPCL; and 156(2) & (3) ACJL. Adjournments are usually granted by the court in its discretion depending on the circumstance of the case, and entitlement to a reasonable time and facilities to prepare for a defence is a right of an accused person – Section 36(6)(b) of the 1999 Constitution; Gokpa v. Inspector-General of Police (1961) 1 All NLR 432.

  3. Call or recall of witness – The court must permit the accused and the prosecution to recall any witness who had testified, or call new witnesses, and examine or cross-examine them with reference to the amendment – Sections 165 CPL; 211 CPCL; and 157 ACJL. That is, the prosecutor and the accused shall be allowed to recall or re-summon any witness who may have been examined and examine or cross-examine such with reference to such amendment. It is the duty of the court to inform the accused who is not represented of his counsel of this right but where the accused is represented, the court has no duty to inform his counsel because it is presumed that the counsel know these procedures. In Shoaga v. R 14 WACA 22 Verity CJ observed thus:

Under section 165, it is clearly laid down that where an alteration or an addition has been made in the charge, the accused person must be allowed to recall and cross-examine any witness who has already given evidence if he so desires. That is a right which can not be taken away from him and of which he must be informed if he is not legally represented.”

The court cannot refuse an application to call or recall witnesses after a charge has been amended – Adisa v. Attorney-General of Western Nigeria (1965) 1 All NLR 412, the Supreme Court held, inter alia, that the accused person had a right to recall witnesses after the charge against him was amended.

EFFECT OF NON COMPLIANCE WITH POST AMENDMENT PROCEDURE


  1. Failure to endorse the amendment CAN vitiate proceedings- COP V.ALAO

  2. Failure to give the parties room to adjourn will not vitiate trial EXCEPT a miscarriage of justice has been occasioned.

  3. Where the court refuses an application to call or recall witnesses after the charge has been amended, the conviction may be set aside and a retrial ordered: ADISA V. A G WESTERN NIGERIA

  4. Failure to call on the accused to take a fresh plea would render the proceedings a complete nullity- UKET v FRN

THE EFFECT OF A CONVICTION ON A DEFECTIVE CHARGE

S.166 CPL ;

S.206 CPCL;

S.158 ACJL

It may or may not nullify a trial and conviction depending on if it occasioned a miscarriage of justice.


The trial will be set aside if:

      1. The defect leading to the conviction is fundamental

      2. It prejudiced the accused in the conduct of his defence, and

      3. It brought about the conviction of the accused

HOW TO MAKE ORAL APPLICATION FOR AMENDMENT BEFORE PLEA

On the day of arraignment (mention), the Prosecutor would simply inform the Court as follows:

My Lord, there are two charges filed in this case. One is dated …. and the other dated … we apply to withdraw the one dated …

If the court approves, the amended charge shall become the new charge upon which the trial shall proceed.



a) MAGISTRATE COURT IN THE NORTH

THE THREE PARAGRAPH CHARGE COMPRISING OF AN INTRODUCTORY PARAGRAPH, THE CHARGE AND THE DIRECTIONAL PARAGRAPH: (APPENDIX 5-curriculum)

IN THE MAGISTRATE COURT OF THE FEDERAL CAPITAL TERRITORY, ABUJA

IN THE ABUJA MAGISTERIAL DISTRICT

HOLDEN AT WUSE

CASE NO:……….

BETWWEN:

COMMISSIONER OF POLICE …………………… COMPLAINANT



group 412616 VS.

1.UMARU OBI

2. EHI SHEHU ………………….. ACCUSED PERSONS

I, Gabrielle Ndu, Chief Magistrate Grade I hereby charge UMARU OBI and EHI SHEHU with the following offences:


CHARGE ONE:

That you Umaru Obi and Ehi Shehu on the 2 day of November 2000 at the Julius Berger roundabout Wuse Abuja and within the Magisterial District of this Court, drove in a convoy manner recklessly and menacingly through traffic with motorcycles numbers XL 14GWA and XD 35KWL respectively and thereby committed the offence of reckless driving punishable under section 6 of the Federal Highways Act 1971.


CHARGE TWO:

That you Umaru Obi on the 2 day of November 2000 at the Julius Berger roundabout Wuse Abuja and within the Magisterial District of this Court, drove recklessly which caused the death of one Miss Rose Ogun at the spot and thereby committed the offence of causing death by dangerous driving punishable under section 5 of the Federal Highways Act 1971.


I hereby direct that you be tried by the High Court of the Federal Capital Territory at the Wuse Judicial Division Abuja for this said offences.

DATED THE ………… DAY OF ………………………….. 2001.

……………………………

Ndu Gabriella

Chief Magistrate I

Wuse Magisterial District, Abuja.

b) Magistrate Court in the South

IN THE MAGISTRATE COURT OF LAGOS STATE

IN THE EPE MAGISTERIAL DISTRICT


HOLDEN AT EPE

CHARGE NO:……….

BETWWEN:

COMMISSIONER OF POLICE …………………… COMPLAINANT



group 412616 VS.

1.UMARU OBI

2. EHI SHEHU ………………….. DEFENDANT

COUNT ONE:

That you Umaru Obi and Ehi Shehu on the 2 day of November 2000 at the Julius Berger roundabout Epe, Lagos and within the Epe Magisterial District, drove in a convoy manner recklessly and menacingly through traffic with motorcycles numbers XL 14GWA and XD 35KWL respectively and thereby committed the offence of reckless driving punishable under section … of the (statute)


COUNT TWO:

That you Umaru Obi on the 2 day of November 2000 at the Julius Berger roundabout Epe, Lagos A and within the Epe Magisterial District, drove recklessly which caused the death of one Miss Rose Ogun at the spot and thereby committed the offence of causing death by dangerous driving punishable under section … of the (statute)


DATED THE ………… DAY OF ………………………….. 2001.

……………………………

Akin Olawale Oluwadayisi Esq

Assistant Commissioner of Police

For: Commissioner of Police

c) STATE HIGH COURT IN NORTH

IN THE HIGH COURT OF BAUCHI STATE

IN THE BAUCHI JUDICIAL DIVISION

HOLDEN AT BAUCHI

CASE NO:……

BETWEEN:

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


  1. ABU TERRO

  2. YISA KUDU

  3. BASHIR CHAD

  4. ALIGWAGWA

  5. KOLO STRONG …….

  6. SULEJA TEXAS ………………ACCUSED PERSONS

CHARGE ONE:

Abu Terro, Yisa Kudu, Bashir Chad, Ali Gwagwa, Kolo Strong and Suleja Texas on the 13th day of June 2002 at No. 2 Hankuri Drive Bauchi metropolis and within the Judicial Division of this Honourable Court, severally beat up Yaro Maiguard the security man on the premises and thereby committed the offence of assault punishable under section 265(a) of the Penal Code Law of Bauchi State.

CHARGE TWO:

Abu Terro, Yisa Kudu, Bashir Chad, Ali Gwagwa, Kolo Strong and Suleja Texas on the 13th day of June 2002 at No. 2 Hankuri Drive Bauchi metropolis and within the Judicial Division of this Honuorable Court, robbed one Alhaji Baba of the sum of N550,000.00 from his safe and thereby committed the offence of robbery punishable under Section 301 of the Penal Code Law of Bauchi State.


CHARGE THREE:

Abu Terro, Yisa Kudu, Bashir Chad, Ali Gwagwa, Kolo Strong and Suleja Texas on the 13th day of June 2002 at about 7.00 pm in No. 2 Hankuri Drive Bauchi metropolis and within the Judicial Division of this Honuorable Court, stole assorted jewellery worth the sum of N1000,000.00 belonging to Mrs Aisha Baba from her room and thereby committed the offence of robbery punishable under Section 301 of the Penal Code Law of Bauchi State.


CHARGE FOUR:

Abu Terror, Yisa Kudu, Bashir Chad, Ali Gwagwa, Kolo Strong and Suleja Texas on the 13th day of June 2002 at about 7.00pm in No. 2 Hankuri Drive Bauchi metropolis and within the Judicial Division of this Honuorable Court, caused the death of Yaro Maiguard by punching his face and head with knowledge that death will be the probable cause and thereby committed the offence of culpable homicide punishable with death under section 221 of the Penal Code Law of Bauchi State.

CHARGE FIVE:

Abun Terror on the 13th day of June 2002 at about 7.00pm in No. 2 Hankuri Drive Bauchi metropolis and within the Judicial Division of this Honuorable Court, defamed the modesty of one Aisha Baba by calling her ’a cheap prostitute’ and thereby committed the offence of criminal defamation punishable under section 400 of the Penal Code Law of Bauchi State.

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

……………………………………..

NDU GABRIELLA

DIRECTOR OF PUBLIC PROSECUTION

MINISTRY OF JUSTICE, BAUCHI STATE.

FOR: ATTORNEY GENERAL,BAUCHI STATE

d) HIGH COURT IN THE SOUTH
IN THE HIGH COURT OF OYO STATE

IN THE IBADAN JUDICIAL DIVISION

HOLDEN AT IBADAN

CHARGE NO:……

BETWEEN:

THE STATE ………………….. COMPLAINANT

VS.

1.TUNDE JOSEPH



2. AHMED BABALOLA DEFENDANTS
At the session holden at the High Court of Oyo State on the _____ day of______2012, the Court will be informed by the Attorney-General of Oyo State on of behalf the State that:

1.TUNDE JOSEPH

2. AHMED BABALOLA

are charged with the following offences:



COUNT ONE:

STATEMENT OF OFFENCE

Conspiracy contrary to section 7 of the Criminal Code, Laws of Oyo State.

PARTICULARS OF OFFENCE

Tunde Joseph and Ahmed Babalola on the 21 day of August 2014 at Ahmed Kwali’s office of No 20 Marina Drive Ibadan and within the Judicial Division of this Court agreed to steal the cheque leaf of Alhaji Aminu Keffi.

COUNT TWO:

STATEMENT OF OFFENCE

Conspiracy punishable under section 7 of the Criminal Code Law of Oyo State.

PARTICULARS OF OFFENCE

Tunde Joseph and Ahmed Babalola on the 21 day of August 2014 at Ahmed Kwali’s office of No 20 Marina Drive Ibadan and within the Judicial Division of this Court, agreed to forge the signature of Alhaji Aminu Keffi on the cheque leaf belonging to one Alhaji Aminu Keffi.

COUNT THREE:

STATEMENT OF OFFENCE

Forgery punishable under section 467 of the Criminal Code Law of Oyo State.

PARTICULARS OF OFFENCE

Tunde Joseph and Ahmed Babalola on the 23 day of August 2014 at the Union Bank PLC branch of No. 10 Marina Drive Ibadan and within the Judicial Division of this Court, forged the signature of Alhaji Aminu Keffi on his cheque leaf.
COUNT FOUR:

STATEMENT OF OFFENCE

Stealing punishable under section 390 of the Criminal Code Law of Oyo State.
PARTICULARS OF OFFENCE

Tunde Joseph and Ahmed Babalola on the 23 day of August 2014 at the Union Bank PLC branch of No. 10 Marina Drive Ibadan and within the Judicial Division of this Court, received the sum of N100, 000.00 paid on the cheque leaf with the forged signature on an account belonging to Alhaji Aminu Keffi.

DATED THE …………… DAY OF …………………2014

……………………………………

GABRIELLA NDU

SENIOR STATE COUNSEL

MINISTRY OF JUSTICE, OYO STATE

FOR: ATTORNEY-GENERAL OF OYO STATE




e) HIGH COURT - LAGOS

IN THE HIGH COURT OF LAGOS STATE

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

CHARGE NO:……

BETWEEN:

THE STATE OF LAGOS ………………….. COMPLAINANT

VS.

  1. TUNDE JOSEPH

  2. AHMED BABALOLA …………DEFENDANTS



COUNT ONE:

STATEMENT OF OFFENCE

Conspiracy contrary to section 7 of the Criminal Code Law of Lagos State.

PARTICULARS OF OFFENCE

Tunde Joseph and Ahmed Babalola on the 21 day of August 2014 at Ahmed Kwali’s office of No 20 Marina Drive Lagos Island and within the Judicial Division of this Court, agreed to steal the cheque leaf of Alhaji Aminu Keffi.

COUNT TWO:

STATEMENT OF OFFENCE

Conspiracy contrary to section 7 of the Criminal Code Law of Lagos State.
PARTICULARS OF OFFENCE

Tunde Joseph and Ahmed Babalola on the 21 day of August 2014 at Ahmed Kwali’s office of No 20 Marina Drive Lagos Island and within the Judicial Division of this Court, agreed to forge the signature of Alhaji Aminu Keffi on the cheque leaf belonging to Alhaji Aminu Keffi.


COUNT THREE:

STATEMENT OF OFFENCE

Forgery contrary to section 467 of the Criminal Code Law of Lagos State.
PARTICULARS OF OFFENCE

Tunde Joseph and Ahmed Babalola on the 23 day of August 2014 at the Union Bank PLC branch of No. 10 Marina Drive Lagos Island and within the Judicial Division of this Court, forged the signature of Alhaji Aminu Keffi on his cheque leaf.


COUNT FOUR:

STATEMENT OF OFFENCE

Stealing contrary to section 390 of the Criminal Code Law of Lagos State.

PARTICULARS OF OFFENCE

Tunde Joseph and Ahmed Babalola on the 23 day of August 2014 at the Union Bank PLC branch of No. 10 Marina Drive Lagos Island and within the Judicial Division of this Court, received the sum of N100,000.00 paid on th cheque leaf with the forged signature on an account belonging to Alhaji Aminu Keffi.

DATED THE …………… DAY OF …………………2014

………………………………….

NDU GABRIELLA

PRINCIPAL STATE COUNSEL

FOR: ATTORNEY-GENERAL/ COMMISIONER OF JUSTICE LAGOS STATE.


f) FEDERAL HIGH COURT

IN THE FEDERAL HIGH COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

CHARGE NO:


BETWEEN:

THE FEDERAL REPUBLIC OF NIGERIA ……………… COMPLAINANT

VS

1.ALHAJI JILO

2. ALHAJI JAKA …………… DEFENDANTS
COUNT ONE:

Alhaji Jilo and Alhaji Jaka on the 26 day of October 2010 at No. 10 Kuje Road FCT Abuja being the farm of Alhaji Jilo and within the Judicial Division of this Court, diverted the distribution of petroleum Motor Spirit (PMS”) belonging to the Nigerian National Petroleum Corporation of ten(10) tankers carrying a total of 33,000 litres of petrol valued at N7.6 million naira meant for transportation to Benue, Kogi and Nasarawa States and thereby committed an offence of sabotage punishable under section 2 of the Petroleum and Distribution (Anti-Sabotage) Act Cap 353 LFN 2004.


DATED THIS …….. DAY OF …………… … 2014.

………………………..



NDU GABRIELLA

SENIOR STATE COUNSEL

FEDERAL MINISTRY OF JUSTICE

FOR: HON. ATTORNEY- GENERAL OF THE FEDERATION.
g) High Court of the Federal Capital Territory

IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA
CASE NO:

BETWEEN:

THE FEDERAL REPUBLIC OF NIGERIA ……………… COMPLAINANT

VS

1.ALHAJI JILO

2. ALHAJI JAKA …………… ACCUSED PERSONS

CHARGE ONE:

Alhaji Jilo and Alhaji Jaka on the 26 day of October 2010 at No. 10 Kuje Road FCT Abuja being the farm of Alhaji Jilo and within the Judicial Division of this Court, diverted the distribution of petroleum Motor Spirit (PMS”) belonging to the Nigerian National Petroleum Corporation of ten (10) tankers carrying a total of 33,000 litres of petrol valued at N7.6 million naira meant for transportation to Benue, Kogi and Nasarawa States and thereby committed an offence of sabotage punishable under section 2 of the Petroleum and Distribution (Anti-Sabotage) Act Cap 353 LFN 2004.

DATED THIS …….. DAY OF …………… … 2014.

………………………..



NDU GABRIELLA

DIRECTOR OF PUBLIC PROSECUTION

FOR: HON. ATTORNEY- GENERAL OF THE FEDERATION.

WEEK 10-BAIL PENDING TRIAL

MEANING OF BAIL

It is the temporary release of an accused (if charged to Court) or suspect (if in Police custody) from prison or custody pending the determination of the case on the condition that he would attend Court for his trial.

It is a constitutional right. -S. 35(4), s35(5) and s36(5) of the Constitution of FRN 1999( as amended) on the right to personal liberty.

Section 35(4) 1999 Constitution: any person who is arrested or detained in accordance with the provisions of subsection (1)(c) of this section shall be brought before a court of law within a reasonable time, and if he is not tried within a period of


  1. two months from the date of his arrest or detention in the case of a person who is in custody or is not entitled to bail

  2. three months from the date of his arrest or detention in the case of a person who has been released on bail, he shall (without prejudice to any further proceedings that may be brought against him) be released either unconditionally or upon such conditions as are necessary to ensure that he appears for trial at a later date

Section 35(5) 1999 Constitution provides what a reasonable time means: a reasonable time means
  1. in the case of an arrest or detention in a place where there is a court of competent jurisdiction within a radius of 40km, a period of one day; and


  2. in any other case, a period of two days or such longer period as in the circumstances may be considered by the court to be reasonable


Section 36(5) 1999 Constitution: every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.
IMPORTANCE OF BAIL

1. It allows an innocent person escape punishment before their trial.

2. It gives the accused enough time to prepare for his defence

TYPES OF BAIL

Bail arises at three different stages of the criminal justice process;

a. Police Bail pending investigation-(SUSPECT) S. 17 &18 CPL; S.17 ACJL, S. 129 CPCL, S. 27 Police Act

b. Bail pending Trial (ACCUSED PERSON)-S.118 CPL; s.115 ACJL; S.340&341 CPCL

c. Bail pending Appeal (CONVICTED PERSON): s283(4) CPL, s69(3) Magistrate Court Law 2009




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