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Duru Onyekachi Free Law Lecture Series: No. 23

LEGAL EMPERORS Onyekachi Duru Esq

INSTITUTION OF CRIMINAL PROCEEDINGS, CHARGES AND ARRAIGNMENT*

Drafting Applications for Consent to Prefer Charges

The Position in the South & North

Consent of a High Court Judge is a condition precedent to

the filing of information and charge in the High Courts in the South

and North except Lagos State and Federal High Court. By Section

340(3) of the Criminal Procedure Act any information filed

without the requisite consent is liable to be quashed: A.G Fed. v.

Isong. The application for consent is usually in writing and is

accompanied by the following:

(a) A copy of the proposed charge;

(b) Where the application is brought by any other officer other

than the Attorney General himself, an affidavit by the

applicant to the effect that to the best of his knowledge, the

facts contained in the information are true;

(c) Proof of evidence and list of witnesses;

(d) Unedited statement of the accused person; and

(e) Where a similar application had been made previously, the

fact must be disclosed as well as the result of such

application.

Such an application may be made by way of motion on Ex

parte supported with affidavit or by way of a letter. For example,

the application could take the following form:

* CONTACT: Email: onyekachiduru@gmail.com; Tel: +234-8037707496;

+234-8022148248.

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IN THE HIGH COURT OF ENUGU STATE

IN THE UDI JUDICIAL DIVISION

HOLDEN AT UDI

CHARGE

NO:….

BETWEEN

THE

STATE:…………………...………………………COMPLAINANT

AND

OKORO SAM…………………………………………….

DEFENDANT

MOTION EXPARTE

Brought pursuant to Section 185(6) of the Criminal Procedure

Code or Section 340(3) of Criminal Procedure Act and under

the inherent jurisdiction of the court.

TAKE NOTICE that this Honourable Court will be moved on … the

… day of ... 2014 at the hour of 9 O‟ clock in the forenoon or so

soon thereafter as the business of the court may permit, as the

complainant may be heard praying the court for the following

order:

1. AN ORDER for leave to prefer a charge against the accused

person (name) or consent to file information against (name of

accused).

2. AND SUCH FURTHER ORDER(S) as this Honourable court

may deem fit to make in the circumstances.

Dated this … day of … 2014

……………………… Onyekachi Duru Esq.

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Principal Sate Counsel For: Attorney General

Alternatively, a letter may be written thus:

LETTER HEADED PAPER OF THE MINISTRY OF JUSTICE

APPLICATION FOR LEAVE TO PREFER A CHARGE BROUGHT PURSUANT TO SECTION 185(B) OF CRIMINAL

PROCEDURE CODE OR SECTION 340(3) OF THE CRIMINAL PROCEDURE ACT

By virtue of the powers conferred upon the Attorney-General

(State or Federal, as the case may be) by section 174 or 211 of

the Constitution of the Federal Republic of Nigeria, 1999 (as

amended) which power was delegated to me by legal notice dated

20 ... day of … 2014, I, Onyekachi Duru Esq., Principal State

Counsel in the Federal/State Ministry of Justice HEREBY APPLY

on behalf of the Attorney General under section 185(b) of the

Criminal Procedure Code or Section 340(3) of the Criminal

Procedure Act (as the case may be) for leave to prefer a charge

for the trial of the above named accused person: Okoro Sam.

Dated this ... day of … 2014.

……………………… Onyekachi Duru Esq.

Principal Sate Counsel

Application to Amend Charge after Plea

This is usually in writing by way of motion on notice; but, in

the case of amendment before plea, it is usually on oral

application. The following applications for amendment should be

noted:

(a) Applications for amendment of a charge by addition or

deletion of words/phrases or alteration.

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(b) Application for leave to amend charges by framing a new

charge, applicable in situations where consent to prefer a

charge is required.

Take Notice that every prosecutor who intends to file or prefer

a charge in the State High Courts must obtain the consent of a

High Court Judge. The requirement of consent before filing or

preferring a charge also applies to Attorney-Generals except in

Kano State where Section 185(b) of Criminal Procedure Code

has been amended. The amendment allows the State‟s Attorney-

General to prefer a charge without the consent of a judge; but, only

when he intends to personally conduct the prosecution of the case.

In contrast, in the Lagos State, under the Administration of

Criminal Justice (Repeal & Reenactment) Law, 2011, the

obtaining of the consent of a Judge of the High Court by any

prosecutor is not required before the filing of information. There is

also no requirement for consent for a charge before the Federal

High Court.

Nature of Charges

What is a charge?

A charge is an instrument which informs an accused person

of what he did, when he did it, against whom it was done and the

particular provision of a written law that criminalizes such conduct

in compliance with Section 36(6)(b) of the CFRN 1999 (as

amended) which provides that every person who is charged with

a criminal offence shall be entitled to be informed promptly in the

language that he understands and in detail of the nature of the

offence.

By Section 29 the Criminal Procedure Act, a charge is

defined as the statement of offence or statement of offences with

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which an accused is charged in a summary trial before a court.

This definition does not however include charges filed in the High

Court. On the other hand, The Administration of Criminal

Justice (Repeal and Re-enactment) Law of Lagos State 2011,

Section 371 thereof, defines a charge as the statement of offence

or statements of offences with which a defendant is charged in a

trial whether by way of summary trial or trial by way of information

before a High Court or any court or tribunal established by law.

This is a more comprehensive definition.

All in all, an accused person is arraigned in court upon a

charge sheet. In practice, the term charge is used to describe

either the entire charge sheet used in a trial or the statement of

any particular offence (count) with which a person in charged.

Who Drafts, Prepares, Signs the Charge for Filing?

The question of who drafts, signs or prepares the charge

sheet depends on the court (that is to say, Magistrate Court or

Federal High Court or State High Court) where the accused is to

be arraigned as well as the jurisdiction (that is to say, North or

South) where the trial is to take place. For example, in the states

where the Criminal Procedure Act is applicable, charges for use at

the Magistrates‟ Court are prepared and signed by police officers

(see Section 78(b) of the Criminal Procedure Act); although,

there is nothing preventing a Law Officer from doing same: State

v. Okpegboro.

Conversely, in the High Courts of the states where the

Criminal Procedure Act is applicable & that of the States where the

Criminal Procedure Code is applicable, charges are drafted and

signed by the Attorney-General (State or Federal) or Law Officers

under his department.

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In the States where the Criminal Procedure Code is

applicable, charges, for use at the Magistrate‟s Court are drafted

and signed by the Magistrate after taking evidence from

prosecution witnesses: section 160(1) of the Criminal Procedure

Code.

Moreover, on authority of Federal Republic of Nigeria v.

Osahon, Police Officers can now draft charges in any trial court in

Nigeria, except a Court Martial. Take Notice that an information

may be signed by a private person – section 343 Criminal

Procedure Act or other person designated by the Governor –

section 341 Criminal Procedure Code apart from a Law Officer.

Note again that a Law Officer can sign his name on an information

without the Attorney General as the ultimate authority where the

Attorney General has delegated his powers to the officers of his

department: Ibrahim v. the State (1986)1 NWLR 650.

Laws to Be used in Framing a Charge

As a general rule, the drafter must use the particular section

of the law that prescribes the punishment for the offence that is

being charged as the law under which that particular offence is

charged. The following guideline is helpful:

a. If a section defines an offence while another prescribes a

penalty, you must state the section in the count.

b. If a section defines an offence while another prescribes a

penalty, you must state the section that prescribes a penalty

in the count.

c. If two different sections of the law defines and prescribes the

penalty for an offence respectively, while another section

states a different penalty for the same offence if it is

committed in a different circumstance, you must state the

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latter section in the count if the offence was committed under

any of the difference circumstances prescribed.

d. If several sections define various offences while a latter

section prescribes a penalty for all the offences, you must

state both sections in the Court using “contrary” and

“punishable”.

Form and Contents of Charges

A charge must contain the following:

(a) Heading

(b) Reference No

(c) Parties

(d) Preamble

(e) Counts/charges of the offence

(f) Date and signature of the drafting authority

a. Heading

Heading refers to the heading of the court where the charge

is being filed determined by the location where the alleged offence

was committed. The heading must show the court where the trial

will take place, the State, the Judicial Division (in the case of a

High Court) or Magisterial District (in the case of a Magistrates

Court) where the charge is being filed. Heading determines

jurisdiction. Examples of Headings are:

1. IN THE HIGH COURT OF BENUE STATE

IN THE OTUKPO JUDICIAL DIVISION

HOLDEN AT OTUKPO

2. IN THE MAGISTRATE COURT OF BENUE STATE

IN THE OTUKPO MAGISTERIAL DISTRICT

HOLDEN AT OTUKPO

3. IN THE FEDERAL HIGH COURT OF NIGERIA

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IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

4. IN THE COURT OF APPEAL OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

5. IN THE HIGH COURT OF THE FEDERAL CAPITAL

TERRITORY

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

b. Reference No

The Reference No is for administrative purposes. It is not a

requirement of the law. It comprises of abbreviation of the judicial

division, a chronological number and the year of filing. The column

for the reference number must be provided on the top-right hand

corner of the charge sheet or information immediately below the

heading for the registrar to supply the reference number.

Reference number is referred to by different nomenclature

depending on the region or court where the charge or information

is to be used.

For High Court, Magistrates Court and Customary Courts in

the South as well as Federal High Court, it is denoted by Charged

No; while in the High Court, Magistrates Court and Area Courts in

the North and Federal Capital Territory it is written as Case No.

For the Federal High Court, it does not matter where the Federal

High Court is sitting.

c. Parties

This refers to the litigants in a criminal matter. A victim of a

crime is not a party in the criminal proceedings, except as a

witness. An offender facing criminal trial is referred to as

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DEFENDANT in the High Court, Magistrate Court, Federal High

Court under Administration of Criminal Justice Law 2011 &

Criminal Procedure Act States or ACCUSED PERSONS in High

Court, Magistrate Court, Federal Capital Territory High Court &

Magistrate Court for Criminal Procedure Code states.

On the other hand, the person who is the COMPLAINANT,

that is the authority whose penal law has been contravened, is

written as THE STATE (for violations of state laws enacted by

State Houses of Assembly) except Lagos State where the

complainant in such as case will be The State Of Lagos; or

Federal Republic Of Nigeria (Where the violated penal law is an

Act of the National Assembly), irrespective of the court (whether

Federal High Court or High Court) and where the charge is before

a Federal Capital Territory High Court and where some Agencies

of the Federal Government empowered to prosecute such as

EFCC are involved, irrespective of the course or territorial location

of the court; or Commissioner Of Police where the offence is

prosecuted in a Magistrates‟ Court of the state whose penal law

has been violated.

Thus, in the south, the parties to a criminal proceeding in a

State High Court trial for violations of state law are The State and

Defendant and Federal Republic of Nigeria and Defendant, for

trials for federal offences. In Lagos State, it is the State of Lagos

and Defendants or Federal Republic of Nigeria and Defendant,

as the case may be.

Again, where the charge is before the Federal High Court or

a Federal Agency is the prosecuting authority it is Federal

Republic of Nigeria and Defendant. But, if the matter is before a

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Magistrates‟ Court, the parties will be Commissioner of Police

and Defendant.

On the other hand, in the North, it is The State and Accused

Person or Federal Republic of Nigeria and Accused, if the State

High Court is trying a state law or federal law, respectively. The

latter also applies where a Federal Agency is a prosecutorial

authority and in Federal Capital Territory High Courts. For the

Magistrates‟ Court in the North, the parties are Commissioners of

Police and Accused. Take Notice that all “parties” must be in

capital letters and the name of defendant or accused must include

whatever other name or alias he is known by, and of course his

forenames and surname and sex.

d. Preamble

This is only required in the south (except Taraba and

Adamawa states) where offence is to be tried by information in a

State High Court. In other words, preamble is not required when

drafting a charge to be used in the Federal High Court, High Court

of any of the Northern State and Magistrate Courts whether sitting

in the North or in the South. For the former, we have introductory

paragraphs. Take Notice that preambles are applicable to

information only, the latter being use in the State High Court of

South, Taraba and Adamawa States and not in the Federal High

Court where charge applies.

Preamble comes immediately after the statement of the

parties. It is a statement written in small letters stating who informs

the court of the offence, which court is being informed of the

offence, when and where the court is informed of the offence and

who is being alleged to commit the offence(s). Preamble comes

immediately after the statement of the parties and it must be

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observed that the entire preamble is a clause and does not require

a full stoop (.) at the end. This is because a preamble must

connect to the offences that are being charged on the information.

It is required that the name of the accused persons or

persons accused or defendant must be clearly stated in the same

manner and order as they have been stated in the column for

parties and in capital letters. The preamble is meant to usher in the

operative part of the information otherwise known as “count” or

“charge”. The preamble is written in a simple present tense

hence, the use of the verb „is‟ followed by the word “informed”. The

use of the passive sentence is to denote that the act of informing

the court subsists until the entire information is disposed.

Examples of preambles include (applies only to information):

At the session of the High Court of Lagos State holding at Lagos

on the … day of … 2014 the court is informed by the Attorney

General of the State on behalf of the state that … (name

accused/Defendants) … is charged with the following offences:

But, if it is charged prosecuted by a Federal Agency like

EFCC, it is “the court is informed by the Chairman of the

Economic and Financial Crimes Commission on behalf of the

Federal Republic of Nigeria that …”. If it is a federal offence, it is

the “state is informed by the Attorney General of the Federation on

behalf of the Federal Republic of Nigeria that .… (Note that

Preamble applies only to information).

The Charge (North) or Count (South) of Offence(s)

This refers to every distinct offence that is charged in a

charge sheet or information (Take Notice that trial in Taraba and

Adamawa, former Gongola State is by information). In the South

and Federal High Court it is referred to as count; but in the North

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and Federal Capital Territory, it is called charge. Again, where two

or more offences are being charged, each count or charge must be

numbered in the sequence in which it appears on the charge sheet

or information. But, where only one count or charge is being

charged, the word count or charge need not be mentioned.

Every count or charge must sufficiently describe the offence

that is being charged by containing the name(s) of the

accused/defendant, date and place of the alleged offence (such as

person or thing against whom the offence was committed), name

and description (particulars) of the offence committed and penal

law (section) violated and how the accused/defendant is

connected with the offence. However, this takes different format in

both information and charge.

Every count on an information must bear two paragraphs

that is STATEMENT OF OFFENCE and PARTICULARS OF

OFFENCE in capital Letters, underlined. But, both statement of

offence and particulars of offence are merged in one paragraph for

every count or charge sheet filed in the Northern High Court,

Federal Capital Territory High Court, Federal Capital Territory

Magistrate Court, Southern and Northern Magistrate Courts.

Under the paragraph headed STATEMENT OF OFFENCE,

only the name by which the offence that is being charged is known

ascertainable from the section defining the offence and the law

under which it is to be punished using “contrary to” or “contrary

to and punishable under” (as the case may be) must be written.

Example “Perjury contrary to section .…” or “Attempt to export

Indian hemp contrary to section … and punishable under section

…”. Of course, the law must be written in its full name. Also, where

two or more offences are being charged, the STATEMENT OF

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OFFENCE should be numbered: example STATEMENT OF

OFFENCE – COUNT ONE or FIRST COUNT.

On the other hand, the paragraph for the PARTICULARS OF

OFFENCE must reflect the following in the order which they

appear:

(a) Name of the defendant

(b) Date of committing the offence in question

(c) Place where the crime was committed

(d) Judicial division of the court within whose jurisdiction,

the place where the crime was committed falls

(e) Offence that is being charged and

(f) Victim of the alleged offence where applicable or the

thing involved in the offence.

Note that the section of the law under which the accused is

being charged must not be repeated in this paragraph. For

example, “Harry Jacob (m) on or about 4th day of March 2014 at

the Falomo branch of the Nigerian Postal Service, Ikoyi, Lagos in

the Lagos Judicial Division stole a registered parcel property of

Dr. Idris Yakubi”.

In all other cases, every head offence must be in one

paragraph. For example, we may have – “that you Harry Jacob (m)

on or about 4th of March 2013 at the Falomo branch of the

Nigerian Postal Service, Ikoyi, Lagos in the (Judicial Division or

Magisterial District) while sorting mails at the said branch of the

Nigerian Postal Services stole a registered parcel, property of one

Dr. Idris Yakubu and committed an offence punishable under

section … Laws as enacted”.

Furthermore, in the North, where a Magistrate drafts the

charge upon which an accused person is to be tried in a

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Magistrates Court, the Magistrate is required to introduced himself

at the beginning of the charge, then state the particulars of the

offence he is charging in a numbered sequence if he is charging

more than one offence and also make a direction as to the court

where the offences he has charged are to be tried. Finally, he

appends his signature, name and designation at the end of the

charge.

Thus, we have introductory paragraph, main body and

directional paragraph. An example of an introductory paragraph

is – “I, (name and designation of Magistrate) hereby charge you

(name(s) of accused in order and manner which they appear in

parties section) with the following offences”. On the other hand, an

example of a directional paragraph is as follows – “I hereby

direct that you be tried by this court for the said offences” or “I

hereby direct that you be tried for the said offences by the High

Court”.

f. Date and Signature

Every charge sheet must be dated and signed. The common

practice is to place the date and signature immediately after the

courts or charges and if it is a charge drafted by a Magistrate in the

North, the date and signature is placed immediately after the

directional paragraph. The signature is usually at the bottom right

hand corner of the charge or information. Apart from Attorney-

Generals, any other person who signs a charge must in addition to

signing it state his designation and state the fact that he is signing

for and ob behalf of the AG as follows:

………………………………. Onyekachi Duru Esq Principal State Counsel or (Senior/Pupil) For: Attorney-General (Federal or … State)

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Nonetheless, take notice that on the authority of the case

of Ibrahim v. The State (1986) 1 NWLR 650 – a law officer can

sign his name on an information without indicating the Attorney-

General as the ultimate authority, where the Attorney-General has

delegated his powers to the officers of his department.

Rules of Drafting Charges

The drafting of charges is guided and regulated by four

rules. The rules are couched in the negative and all the rules

come to play at the same time when one is drafting a charge. All,

but one, of the rules have some exceptions.

Rule against Misjoinder of Offenders

This rule which applies to the entire charge sheet is to the

effect that every accused person should be charged and tried

separately for any offence alleged against him even when the

offence is committed jointly with others. There are exceptions to

the rule against misjoinder of offenders. The exceptions to the

above general rule against misjoinder of offenders are as

contained in Section 155 of the Criminal Procedure Act,

section 221 of the Criminal Procedure Code and section 151 of

the Administration of Criminal Justice Law.

Section 155 of the Criminal Procedure Act provided for

the following exceptions:

(i) When more persons than one are accused of the same

offence.

(ii) Different offences committed in the same transaction

by different offenders.

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(iii) When a person is accused of committing an offence

and another of abetting or being accessory to or

attempting to commit such offence.

(iv) When a person is accused of any offence of theft, criminal

misappropriation, criminal breach of trust and another of

receiving or retaining or assisting in the disposal or

concealment of the subject matter of such offence – they

may be charged and tried together or separately as the

court thinks fit.

These are the exceptions to the rule; and will be explained thus:

a. Joint commission of the same offence

This applies where accused persons or defendants are

alleged to have jointly committed the same offence. The case of

Okojie & Ors v. Commissioner of Police where the evidence

adduced against the defendants was that they arrested the

complainant pursuant to a warrant of arrest and took him to the

court hall where they jointly assaulted him, applies to this rule. See

also Sections 7, 8 & 9 of the Criminal Code.

b. Commission of different Offences in the Course of the same Transaction

Here there is joint commission or commission of different

offences in the course of the same transaction. In other words, the

accused persons or defendants committed different offences in the

course of the same transaction. In the case of Haruna & Ors v.

The State, course of the same transaction was interpreted to

mean or be dependent on -

(a) Proximity of time and place;

(b) Continuity of action and

(c) Community of purpose.

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Note that all three factors do not have to be established; any

one of the factors is established is sufficient.

Note also that community of purpose or design may arise out of

conspiracy or common intention and common intention unlike

conspiracy arises when two or more persons without prior

agreement form a common intention to do an act or make an

omission and in the consequence, an offence is committed. Thus,

an offence committed in the course of a riot comes under common

intention.

c. Person who committed the offence and persons who aided, abetted or attempted to commit the same offence

This category of persons may be charged together in one

charge sheet. In other words, principal offender(s) may be tried

together with other persons who aided, abetted, counselled or

procured, or attempted to commit the same offence. In Patrick

Njovens & Ors v. The State, the defendants who knew of a plan

to rob a bank and promised to use their power and influence to

prevent the detection of the robbery and prosecution of the robbers

were charged and tried jointly with the actual robbers and were

convicted.

d. Commission of related Offences

Under this exception, person(s) who commit an offence may

be charged together with other persons who commit another

offence if the two offences are related – that is to say, the

commission of one is defendant upon the commission of the other;

but, there will be separate counts on the charge sheet. Examples

of related offences are: (a) theft (b) criminal misappropriation (c)

criminal breach of trust and (d) extortion and of course receiving,

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retaining and assisting in the disposal of or concealment of the

subject matter of these offences.

e. Commission of Offences during a fight or series of fight arising out of another fight and persons accused of abetting any of these Offences

This exception applies only to the states where the Criminal

Procedure Code is applicable by virtue of Section 221(g) of the

Criminal Procedure Code and means that person(s) accused of

committing an offence during a fight or a series of fights arising out

of another fight and persons accused of abetting any of these

offences may be charged together under one charge sheet.

Rule Against Misjoinder of Offences

This rule is to the effect that for every distinct offence with

which a defendant is accused, there must be a separate count in a

separate charge sheet and every such offence must be tried

separately. This rule also applies to the entire charge sheet. The

following exceptions apply to this general rule.

(a) Any three offences committed by the same person

within 12 months may be charged together in a single

charge sheet, subject to the rule against duplicity:

This is provided for in Section 157(i) of the Criminal

Procedure Act as follows – when a person is accused of more

offences than one committed within a period of twelve months for

the first last of such offences, whether in respect of the same

person or thing or not, he may be charged with and tried at one

trial for any number of them not exceeding three. Thus, it is not

necessary that the three offences were committed against the

same person or in respect of the same thing. It is also not

necessary that the three offences must be of the same kind: Dua

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v. Kano Native Authority. Note also that time is of essence under

this exception. Note also that an attempt to commit the offence is

treated as offences of the same kind here.

(b) Offences committed in the course of the same transaction

This exception does not limit the number of offences that

may be charged in a single charge sheet nor does it have a time

frame; provided that there is:

a. Proximity of time and place

b. Continuity of action and

c. Community of purpose (condition of sharing or having things

in common or being alike in some way).

Thus, the acts or omission constituting the offence(s) must be

so connected one to the other as to form the same transaction.

See Lawson v. The State where 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.

(c) Offences comprising the same elements but constituted/defined under difference laws

Examples include bigamy under the Criminal Code and

under the Marriage Act and the offence of causing death by

dangerous driving under the Criminal Code and under the Road

Traffic Law. However, where an accused is charged with any two

of such offences in a single charge sheet, he may only be

convicted to one of them.

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(d) Offence constituted by different combinations of acts and omissions which by themselves or in conjunction with others, constitute a different offence

Thus, an act or omission may constitute an offence, and a

combination of such acts or omissions may singularly constitute a

different offence – Section 160 of Criminal Procedure Act

permits the joining of such diverse offences in the same charge

sheet.

(e) Commission of acts or omissions constituting several offences the facts which can be proved will constitute Thus, the accused under this situation may be charged with

having committed all the offences; some of them, and (or) charged

in the alternative with having committed some or other of the said

offences in the same charge sheet.

(f) Offences of the same or similar character or part of a series of such offences

Offences of the same kind are identical offences; offence

sharing or exhibiting some common features. In other words,

evidence for one offence would be admissible to prove the other

offence e.g. stealing and robbery. Thus, more than one offence

of a similar character may be charged in a single charge sheet.

(g) Commission of Offences or Offences Committed on one of several occasions can be charged together in the alternative, when it is doubtful on which occasion the offence was committed, by the facts that can be proved. Here, there is doubt as to when the offence was committed,

for example, difficulty as to when the offence of burglary/stealing

was committed – the two offences may in such a case be charged

together in one charge sheet.

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Rules Against Duplicity

This rule states that every distinct offence with which a

person is charged must be contained in a distinct count or charge.

The rule applies to each count of offence and not to the charge

sheet. Thus, where a count of offence contained in a charge sheet,

discloses or alleges more than one offence it is bad for duplicity as

was the case in Okeke v. Police. We have the following

exceptions to the rule against duplicity.

(a) Statutory Precedents/Forms

An example is the offence of burglary and stealing.

(b) Offences of General Deficiency of Money; Not Goods:

Offences of misappropriation of money committed over a

period of time can be lumped together in one count of a charge.

Each misappropriation of money does not have to be contained in

a separate count of a charge. The money alleged to have been

misappropriated can be aggregated and stated in a single count.

Note that this exception applies to the misappropriation of money

and not to misappropriation of goods. Also, the monies

misappropriated must be the property of the same person, whether

a natural or corporate person.

(c) Identical offences committed in a single transaction

Offences of the same kind or nature committed in a single

transaction can all be contained in one count of a charge. It is

unnecessary to put each such offence in separate and distinct

counts – See COP v. Oyewusi. Examples of identical offences are

demanding money with menaces and official corruption.

(d) Offences defined in the alternative

Thus, where a section in a statute creates a single offence

which can manifest in a alternative forms, the alternative

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manifestations may be stated in a single charge sheet. Note that

this exception applies only to a situation where a written law

creates one offence that may be committed by the omission or

commission of different acts or in different capacities or with

different intentions in the alternative.

(e) Overt Acts in Treason and Treasonable Felony

This exception is to the effect that all the overt acts allegedly

done by an accused person as manifestation of his intention to

commit treason or treasonable felony can be contained in a single

count in a charge sheet. See the case of Omisade v. R.

Amendment of a Charge

A charge may be amended at any stage when the defect is

discovered. An amendment may take the form of addition,

deletion, alteration or even complete substitution. It may either

be done by the person who drafted the charge in the first place or

by the court suo motu depending on the court and jurisdiction (that

is to say whether Magistrate or High Court and whether it is under

the Criminal Procedure Act or under the Criminal Procedure Code.

Amendment may be done under the following cases:

a. On application of the prosecution; or

b. On a successful objection to the defect (such as lack of

consent, violation of the rules of drafting charges and lack

of proper signature) by the defence; or

c. By the court suo motu (especially Magistrate Court in the

North)

Also, it may be with leave/consent (usually by motion on

notice) after plea is taken or without leave/consent (oral), if it is

done before plea is taken. Take note of the following:

23

1. Types of amendment – addition, or deletion or new charge

2. Stages of amendment – before plea or after plea

3. Mode of application – oral or in writing (leave/consent)

Again, application for amendment may be oral or in writing. The

prosecutor may seek to amend a charge for any of the following

reasons:

(a) To add or include a vital ingredient of the particular offence; or

(b) To delete any particulars or statutory provision which does not

seem to be appropriate in the charge.

However, a defective charge may be amended provided that:

a. The defect is not incurable (example, accused

name/offence)

b. The amendment is not intended only bring the offence

charge within the jurisdiction of the court.

c. The amendment will not cause injustice to the accused

person.

d. The error is not frivolous.

Amendment of a Charge before Arraignment

In such a case, the court on its own volition, may direct the

amendment of the charge; or on an application by the prosecution,

permit the framing of a new charge or the alteration or amendment

of an existing charge – section 162 of the Criminal Procedure

Act. However, in the states where leave and consent is required to

file a charge or information, the prosecutor will need the leave or

consent of a High Court judge to file the new charge or information

if the amendment is fundamental. But, the general rule is that a

defective charge may be amended without the leave of court, if the

defect is minor and is noticed before plea.

24

Amendment of a Charge after Arraignment

Here, there must be an application for leave to amend by

way of Motion on Notice stating the proposed amendment and why

the amendment is necessary. If the application is granted, the

court must comply with post amendment procedure. In Lagos, no

formal application is necessary for a prosecution to frame a new

charge or amend the charge before any court – section 155(3)

Administration of Criminal Justice (Repeal & Re-enactment)

Law 2011.

Post Amendment Procedure

This is what is required of a trial court after amendment of

charge subsequent to the plea of the accused person. The steps

are as follows:

1. The amended charge must be read and explained to the

accused person and when the court is satisfied that the

charge is understood by the accused, he shall be called

upon to make a fresh plea thereto – section 164(1) of the

Criminal Procedure Act and section 155(2)

Administration of Criminal Justice (Repeal & Re-

enactment) Law 2011.

2. The consent of the accused will be sought on whether or not

he is ready to be tried on the amended charge. However, this

does not apply to the states under the Criminal Procedure

Code.

3. Reasonable adjournment or order for a new trial may be

granted at the instance of either the accused person or the

prosecutor, if to proceed immediately with the trial on the

amended charge will in the opinion of the court, prejudice the

accused in his defence or the prosecutor in the conduct of

25

the case – section 164(2) & (5) of the Criminal Procedure

Act and section 156(1) Administration of Criminal

Justice (Repeal & Re-enactment) Law 2011.

4. The prosecutor and the accused must be allowed to recall or

re-summon any witness who may have been examined for

the purpose of examining or re-examining such witness(s) in

respect of the amendment.

5. The court shall endorse a note for amendment on the charge

that the amended form is deemed to be the original charge.

Take Notice that the effect of the breach of the rules or procedure

relating to amendment of charges depends on its effect on the trial

of the accused – that is to say, whether it is prejudicial to him or

has occasioned miscarriage of justice. The following amendment

applications should be noted:

(a) Oral application to amend a charge before plea

(b) Application to amend a charge after plea by addition or

subtraction by way of motion on notice.

(c) Application to amend a charge after plea by framing a

new charge by way of motion on notice; accompanied

by an application for leave to prefer a charge by way of

motion ex parte or letter or Application for leave to

amend a charge

(d) Application to amend a charge after plea by framing a

new charge by way of motion on notice without

application for leave to prefer a charge in Lagos State

and Federal High Court, since there is no requirement

of consent, or application to frame a new charge or

amend by framing a new charge.

26

Institution of Criminal Proceedings

Persons who have Power to Institute criminal Proceedings

In criminal proceedings, the question of who institutes

criminal proceedings is fundamental. This is because a want of

competence in the prosecutor will result in the entire proceedings,

including any judgment obtained therefrom, being declared as a

nullity. There are broadly, four (4) classes of persons who can

commence criminal proceedings against any person in Nigeria.

1. The Attorney-General

The power of the Attorney-General to institute criminal

proceedings is constitutional and is as provided for in Section

174(1) of the CFRN, 1999 and Section 211 of the same

constitution. It states that the Attorney-General of the Federation

shall have power:

(a) To institute and undertake criminal proceedings

against any person before any court of law in Nigeria,

other than a court-martial, in respect of any offence

created by or against any Act of the National

Assembly;

(b) To take over and continue any such criminal

proceedings that may have been instituted by any

other authority or person;

(c) To discontinue at any stage before judgment is

delivered any such criminal proceedings instituted or

undertaken by him or other authority or person.

The Powers Conferred upon the Attorney-General of the

Federation under Subsection (1) of this section may be exercised

27

by him in person or through officers of his department. The

following points are deducible from the foregoing.

First, the power to institute and undertake does not or is not

exercisable in a court martial. Also, in the case of a Federal

Attorney General, it is exercisable in respect of Federal offences

as contained in the Exclusive Legislative List; while in the case of

State Attorney General, it is exercisable in respect of state

offences created by state laws pursuant to the Concurrent

Legislative Lists. Authority for this proposition is the case of

Anyebe v. The State (1986) 1 SC 87, involving an accused

charged before a Benue State High Court by the State Attorney

General for the Federal offence of being in possession of a short

gun without a valid license contrary to Section 4 of the Firearms

Act of 1958 as amended by the Firearms (Amendment) Decree

No. 31 of 1966 and section 286 of the CFRN, 1999.

However, where a Federal enactment is meant to take effect

as a state law, any offence so created shall be deemed to be a

state offence, and in such a case, the State Attorney General and

not the Federal Attorney General shall be competent to prosecute.

In Emelogu v. The State (1988) 2 NWLR (Pt. 78) 524, the

Supreme Court held that a State Attorney General can prosecute

persons who violate the provisions of the Robbery and Firearms

(Special Provisions) Act, 1970 because though the Act is a

federal law, it was made to take effect as a state law.

The foregoing notwithstanding, a Federal Attorney General

can delegate to the State Attorney General the power to institute

criminal proceedings in respect of federal offences and vice versal.

Again, the power so conferred is absolute and at the

discretion of the Attorney General to determine who to prosecute

28

and who not to prosecute. He has no obligation in a particular way;

and the court of law has no power to question his discretion.

Secondly, the power to take over and continue extends to

proceedings begun by any other authority or person and is also

absolute and subject only to the unquestionable discretion of the

Attorney General himself; and the exclusion of a proceeding before

a court martial. The Attorney General‟s power in this regard is

exercisable in the court of 1st instance or in any other court of his

choice, provided that the proceeding has not terminated:

AMAEFULE v. THE STATE (1988) 2 NWLR (pt. 75) 156.

This power is however, subject to the provisions of Sections

174(3) and 211(3) of the 1999 CFRN which provides that in

exercising his power under the section, the Attorney General shall

have regard to the public interest, the interest of justice and the

need to prevent abuse of legal process: Edet v. The State (1988)

12 SC (Pt. 1) 103.

Thirdly, the power to discontinue otherwise known as “nolle

prosequi” is also absolute and can only be exercised when there

is an AG in office and not when the office is vacant, since it is

power peculiar to the Attorney General. See Attorney General of

Kaduna State v. Hassan (1985) 2 NWLR (Pt. 8) 483 for the

proposition that power to enter a nolle prosequi are personal to the

Attorney General and hence a Solicitor General cannot exercise

same. The power is also not subject to judicial review: State v.

Ilori & 2 Ors (1983) 2 SC 155. The power can be exercised

anytime before judgment is delivered and in respect of

proceedings begun by other authority or person.

The constitution is silent on the mode of exercising the power

of nolle prosequi. However, statutes provide for how the power of

29

nolle prosequi is to be exercised. See Section 73(1) of the

Criminal Procedure Act and Section 253(2) of the Criminal

Procedure Code and section 71(1) of the Administration of

Criminal Justice (Repeal and Re-enactment) Law, 2011 of

Lagos State. Whereas, the Criminal Procedure Act and Criminal

Procedure Code talks about “stating in court” or “informing the

court in writing”; the Administration of Criminal Justice (Repeal &

Re-Enactment) Law 2011 does not prescribe any mode of exercise

but merely provides that the power may be exercised either by the

Attorney General himself or through an officer of his department.

This has been interpreted to mean that a written authority of the

Attorney General is not required before an officer in the Attorney

General‟s department can enter a nolle prosequi and also the

Attorney General does not need to appear physically in order to

exercise this power.

It is opposite at this point to compare nolle prosequi with

withdrawal of a case by police prosecutors. First, the latter is

provided for under Section 75 of Criminal Procedure Act and

Section 73(1) of the Administration of Criminal Justice (Repeal

and Re-enactment) Law, 2011 of Lagos State and refers to the

power of a police prosecutor to withdraw from prosecution. The

two powers differ in the following respects:

i. Whereas the effect of nolle prosequi is a discharge and

not an acquittal; the effect of a withdrawal may be a

discharge or an acquittal depending on the

circumstances. See Section 73(3) of the Criminal

Procedure Act, Section 253(3) of Criminal

Procedure Code and Section 71(3) of the

Administration of Criminal Justice (Repeal and Re-

30

enactment) Law, 2011 of Lagos State; all to the

effect that the discharge of an accused person

pursuant to a plea of nolle prosequi shall not operate

as a bar to any subsequent proceedings against him

on account of the same facts. See the case of Clarke

v. AG Lagos State (1986) 1 QLRN 119 where the

accused persons were re-arrested and arranged after

entry of nolle prosequi.

However, the provisions of Section 75(3) of the Criminal

Procedure Act and Section 73(3) of the Administration of

Criminal Justice (Repeal and Re-enactment) Law, 2011 of

Lagos State, which is on all fours with the provision of section

73(3) of the Criminal Procedure Act, Section 253(3) of the

Criminal Procedure Code and Section 71(3) of the

Administration of Criminal Justice (Repeal and Re-enactment)

Law, 2011 of Lagos State must be read subject to the provisions

of Subsection (1) of the same section as well as the proviso to

subsection (1) thereof.

The general effect of the subsection and proviso is to the

effect that where the accused person has not put in his defence, a

withdrawal would lead to a discharge, but where he has already

put in his defence, a withdrawal would lead to an acquittal; subject

to the discretion of a Magistrate in trials before a Magistrate Court

who is allowed to exercise discretion in cases where a withdrawal

is made before a defence is tendered by ordering acquittal.

ii. Whereas the court must consent to a withdrawal

(except in cases where a withdrawal is made pursuant

to the discretion/direction of the Attorney General);

31

consent of the court is not required to make a nolle

prosequi effective.

iii. The court has a wider discretion in respect of

withdrawal, for example, it can acquit even when the

accused has not given his defence.

iv. The instructions of the Attorney General with respect to

withdrawal need not be in any particular form; but in a

case of nolle prosequi; it must be in writing and duly

signed by the Attorney General.

v. The power to withdraw is exercisable only in

proceedings before a Magistrate Court – section 75(1)

Criminal Procedure Act or proceedings before a High

Court and Magistrate Court – Section 73(1) of the

Administration of Criminal Justice (Repeal and Re-

enactment) Law, 2011 of Lagos State; while the

power of nolle prosequi is exercisable in respect of

proceedings before any trial court except a court

marshal. This also means that whereas the power is

exercisable in respect of state offences, the latter

extends to federal offences. Poser: what is the

implication of the foregoing in the light of the fact that

police officers can now prosecute in the Federal High

Court?

vi. nolle prosequi applies to proceedings instituted by

another authority; but withdrawal does not.

Furthermore, the power of institute criminal proceedings

conferred on the Attorney General may be exercised by him

personally or through officers in his department. Thus, the power is

delegable. Poser: is the power of a Federal Attorney General to

32

delegate to the State Attorney General; and vice versa for the

prosecution of a state offence and vice versa restricted to the

specific power of instituting and undertaking criminal proceedings

or does it extend to the general power to discontinue criminal

proceeding?.

Again, the delegation may be express or implied. That it is

implied means that such a power is exercisable by the subordinate

authorities even in the absence of an express authorization. See

Ibrahim v. State (1986) 1 NWLR (Pt. 18) 650. However, the

power of nolle prosequi cannot be impliedly delegated; but only

expressly delegated; except in Lagos State since the

Administration of Criminal Justice (Repeal and Re-enactment)

Law, 2011 of Lagos State; is silent on the matter – see Section

71 (1) of the Administration of Criminal Justice (Repeal and

Re-enactment) Law, 2011 of Lagos State. Lastly, the powers

delegated by the AG in this regard may in turn be sub-delegated;

since the maxim does not apply to criminal proceedings.

2. A Police Officer

The police has a statutory power to conduct criminal

proceedings against any person accused of having committed an

offence before any court of law in Nigeria, subject only to the

power of the Attorney General in this regard: Section 23 of the

Police Act, Olusemo v. COP (1998) 11 NWLR (Pt. 575) 547;

Section 98(1) of the Federal Capital Territory High Court Act

and FRN v. Osahon & 7 Ors (2006) 5 NWLR (pt. 973) 361 where

it was held that police officers can prosecute in the Federal High

Court , notwithstanding the express provisions of Section 56(1) of

the Federal High Court Act Cap F12 LFN 2004.

33

Also, the language of the law is “any police officer” and

accordingly, it is immaterial whether the officer prosecuting is

legally qualified or not. Lastly, it is instructive, illuminating and

important to note that the police can only conduct criminal

proceedings in State High Courts and Federal High Courts after

the Attorney General or a Law Officer in his Department has

instituted such proceedings. See Section 341 of Criminal

Procedure Act and Section 253 of the Administration of

Criminal Justice (Repeal and Re-enactment) Law, 2011 of

Lagos State.

However, in the case of a Magistrate Court, a police officer

can institute criminal proceedings. See Section 78(6) of Criminal

Procedure Act, Section 78(2) of the Administration of Criminal

Justice (Repeal and Re-enactment) Law, 2011 of Lagos State

and Section 143 Criminal Procedure Code. Accordingly, in

respect of High Courts, a police officer has power to “conduct”,

while in the case of Magistrate Courts, it has power to “institute”

criminal proceedings.

3. Private Persons

Private persons can initiate or commence criminal

proceedings. Two ways a private can institute criminal proceeding

are (a) by laying a complaint before the court and (b) by filing

private information. Indeed, private persons may institute criminal

proceedings against a person alleged to have committed an

offence by laying a complaint before a court: section 59(1) of

the Criminal Procedure Act. By that provision, the only limitation

to the right of a private person to initiate criminal proceedings by

complaint is where it appears from the enactment on which the

complaint is founded that any complaint for such offence shall be

34

made by a particular person or class or persons. There are a

number of such provisions in the statute books:

i. Section 98C (2) of the Criminal Code which provides

that no proceedings for an offence under Sections 98,

98A or 98B (summarily dealing with offence of official

corruption) shall be instituted against a judicial officer

except on a complaint or information signed by or on

behalf of the Attorney General of the Federation or by

or on behalf of the Attorney General of the State in

which the offence is alleged to have been committed.

ii. Section 52(2) of the Criminal Code which provides

that a person shall not be prosecuted for an offence

under section 51 (dealing with the offence of sedition)

without the written consent of the Attorney General of

the Federation or of the State concerned.

iii. Section 142(1) of the Criminal Procedure Code

which provides to the effect that complaint of offences

such as adultery and related offences itemized in

Sections 387, 388 & 389 of the Penal Code can only

be made by the husband of the woman or in his

absence by some person who had care of the woman

on his behalf at the time when the offence was

committed or in the case of an unmarried woman, by

her father or guardian or in his absence by someone

who had care of the unmarried woman on his behalf at

the time when the offence was committed.

iv. Section 141(1) of the Criminal Procedure Code

which provides that no court shall take cognizance of

an offence falling under Chapter XXI or Chapter XXIII

35

of the Penal Code or under Sections 383 to 386 of

the same code, except upon a complaint made by

some person aggrieved by that offence, but where the

person so aggrieved as a woman who according to the

customs and manners of the country ought not to be

compelled to appear in public or where the person is

under the age of eighteen or is an idiot or lunatic or is

suffering from sickness or infirmity unable to make a

complaint, some other person may, with the leave of

the court, make a complaint on his behalf or her behalf.

Additionally, Section 342 of the Criminal Procedure Act

and Section 254 of the Administration of Criminal Justice

(Repeal and Re-enactment) Law, 2011 of Lagos State make

provision for the right of a private person to institute criminal

proceedings and prescribes the conditions to be fulfilled when a

private person wants to file private information. By those

provisions, a private person may commence criminal proceedings

by way of information upon fulfillment of the following conditions:

(a) The information has endorsed thereon a certificate by a

law officer to the effect that he has seen such

information and declines to prosecute at the public

instance the offence contained therein.

(b) The private person must enter into a recognizance in

the sum of N100 (section 342(b) of Criminal

Procedure Act) or N10,000 (section 254(b) of the

Administration of Criminal Justice (Repeal and Re-

enactment) Law, 2011 of Lagos State), together with

one surety in like sum, to prosecute the information

diligently to the conclusion and to pay such costs as

36

shall be ordered by the court or in lieu of entering into

such recognizance, to deposit the said sum in court to

abide by the same conditions.

Section 343 of Criminal Procedure Act provides that upon

the fulfillment of the conditions above, a private person may sign

the information and prosecute same. There is no equivalent

provision in Lagos State, but Section 77(1)(b)(ii) of the

Administration of Criminal Justice (Repeal and Re-enactment)

Law, 2011 of Lagos State provides that criminal proceedings may

be instituted in the High Court on information, filed by a private

prosecutor pursuant to Section 254. It is instructive to note that

the law does not give the Attorney General discretion to endorse or

not to endorse private information. Accordingly, where the Attorney

General refuses to endorse a private information or charge, he

may be compelled by an order of mandamus: Fawewnmi v. Akilu

(1987) 11 – 12 SCNJ 151 and Attorney General Anambra State

v. Nwobodo (1992) 7 NWLR (Pt. 256).

Lastly, under the Criminal Procedure Code, Section 143(c)

authorizes institution of criminal proceedings by private persons

and this is done by the court taking cognizance of an offence from

information received from persons other than a police officer (such

as private persons), if the court has reason to believe or suspect

that an offence has been committed. Take Notice that the Criminal

Procedure Code does not specify the requirement of a

recognizance or surety by the private person or any deposit in lieu

thereof.

4. Special Prosecutors

This is another class of persons who can commence and

prosecute criminal cases. The phrase special prosecutor normally

37

refers to any person be he a lawyer or not whose ordinary job is

not public prosecution. The term is used to show that his role in

that instant is a special assignment. In Nigeria, a special

prosecutor is not so called because the statute or instrument of

appointment refers to him as such. Rather, the circumstance of the

person‟s engagement in the prosecution (save where a statute

expressly names him/her) determines whether he is a special

prosecutor or not.

Furthermore, where a statute specifies a special prosecutor,

no other person except the Attorney General can validly institute

criminal proceedings in respect of a violation of the provisions of

that statute. Also, in Nigeria, unlike what obtains elsewhere, a

special prosecutor so mentioned by a statute need not be a

lawyer. For example, under Section 98 of the Federal Capital

Territory, Abuja, High Court Act, we have administrative officer

and other person duly authorized in that behalf by or on behalf of

the Attorney General or in revenue cases, authorized by head of

the department concerned.

Again, Section 66(1) of the Factories Act Cap FI LFN,

2004 provides that any inspector of factories may, although he is

not a legal practitioner, prosecute, conduct or defend before a

court any charge, information, complaint or other proceedings

arising under the Act or in the discharge of his duty as an

inspector.

Also, under Section 176(2) of the Customs and Exercise

Management Act Cap C45 LFN, 2004, it is the Attorney General

only that can prosecute offences under the Act, after the Board

might have sanctioned same. It is instructive to note that to

institute a criminal proceeding is to initiate or start it; while to

38

commence a criminal proceeding is to perform the first act or take

the first step in the proceeding.

Limitation of time to commence criminal proceedings

As a general rule in criminal proceedings, there is no time

frame within which to commence criminal proceedings. This

general rule is however, subject to a number of exceptions. This

segment considers these exceptions and other limitations to

criminal proceedings.

(a) Time

Again, as a general rule, there is no time limit within which

criminal proceedings against an offender may be commenced. In

other words, proceedings may commence at any time after the

commission of the offence. However, to this general rule, statutes

or some particular provisions of some statutes have created

certain exceptions. In these cases time limits within which the

prosecution of these offences must be initiated have been

prescribed by statute. Failure to institute criminal proceedings in

respect of the affected offences within the stipulated time frame

will render the right of action statute barred. The following

instances illustrate the point.

a. Treasonable Felonies and Treason

By Section 43 of the Criminal Code, a person cannot be

tried for treason or treasonable felonies, unless the prosecution is

commenced within two years after the offence is committed.

b. Offence of Sedition

By Section 52 (1) of the Criminal Code, no prosecution for

an offence of sedition shall be begun expect within six months

after the offence is commenced.

c. Sexual Offences

39

Where it is intended to prosecute any person for any of the

offences created in Section 218 and 221 of the Criminal Code

(offences of having carnal knowledge of a girl under 13 years,

having or attempting to have carnal knowledge of a girl who is or

above 13 years but below 16 years as well as a girl or woman

knowing her to be an idiot or imbecile) the proceedings must be

commenced within 12 months of the commission of the offence.

d. Custom Offences

By Section 176 (3) of the Customs and Excise

Management Act Cap C LFN, 2004 no proceedings relating to or

emanating from the Customs and Excise Management Act shall

be instituted except within seven years of the date of the

commission of the offence.

e. Military Offences

By Section 169 (1) of the Armed Forces Act Cap A LFN

2004, no person shall be tried by a court-martial for an offence

(other than mutiny, failure to suppress mutiny or desertion) unless

the trial is begun within three years after the commission of the

offence, regard not being had to any period of time during which

that person was a prisoner of what or illegally about. Subsection

(2) of Section 169 further states that a person shall not be triable

by virtue of subsection (1) of section 168 of this Act (dealing with

trial of persons subject to service law) unless his trial is begun

within three months after he ceases to be subject to service

law under this Act or the trial is for a civil offence committed

outside Nigeria and the Attorney General of the Federation

consents to the trial.

All in all, once any of the above crimes is committed, criminal

proceedings must be instituted within the time limit prescribed by

40

the statute or provisions of a statute. Failure to do so is fatal to the

prosecution. In such cases, time begins to run from the day after

the offence is committed. The day on which the offence is

committed will be excluded from the computation. The material

period that will determine whether criminal offence is statute

barred or not is the period from the day after the date the offence

is allegedly committed to the day proceedings are instituted in

court against the offender (that is the day charges are filed and the

day criminal proceedings are commenced – that is the day the

accused enters a plea to the charges against him).

It is important, instructive and illuminating to note that

conspiracy to commit any of the above offences or any other

offence does not fall under these exceptions. In other words, the

offence of conspiracy to commit any offence is not statute barred

because the substantive offence the accused persons conspired to

commit is itself statute barred.

Lastly, on the authority of Yabugbe v. Cop (1992) 4 NWLR

(Pt. 234) 152 (SC) the provisions of Section 2(a) of the Public

Officers Protection Act which prescribes a limitation period of

three months for commencement of civil actions against public

officers is not applicable in criminal proceedings.

(b) Death of Material Witnesses

Institution of criminal proceedings will be futile where the

material witnesses are dead.

(c) Lapse of Time

This applies in respect of the fading of the memory of

witnesses; thus affecting the accuracy of their testimony.

41

Arraignment

A criminal trial commences upon arraignment and ends with

sentence. It is an initial step in a criminal trial whereby the

defendant is brought before the court to hear the charges against

him and to enter a plea. The term arraignment refers to a

procedure where the accused person is brought before the court

and while standing in or sitting in the dock or adjacent to it has the

charge or allegations read to him in the language he understands.

Thus, arraignment is a process, a procedure and a method and it

occurs in stages.

In Udo v. State (2006) ALL FWIR (Pt. 337) 456, the

Supreme Court reiterated the requirements of a valid arraignment

as follows:

(a) The accused person must be placed before the court

unfettered;

(b) The charge or information shall be read over and explained

to him to the satisfaction of the court by the registrar or other

officer of the court, and

(c) The accused shall then be called upon to plead instantly to

the charge, unless there is a valid reason to not to do so

(example, objection to the charge).

The three requirements must co-exist and failure to comply

with any one of them will render the trial a nullity. This is the

purport of section 215 of the Criminal Procedure Act; section

211 of the Administration of Criminal Justice (Repeal and Re-

enactment) Law, 2011 of Lagos State and section 187 of the

Criminal Procedure Code. Meticulous compliance with the

procedure for arraignment is therefore desirable and imperative

42

before a valid commencement of any criminal proceedings. The

stages of arraignment will now be considered one after another.

1. The accused person shall be placed before the court in the

dock unfettered, which is without restraint: except,

a. Reasonable apprehension of violence

b. He attempts to engage

c. Necessary for his own safety

This may not be unconnected with the need to preserve the

dignity, personal liberty and presumption of innocence of the

accused. However, by Section 215 Criminal Procedure Act, if

the court sees cause to order otherwise, the accused may be

restrained when being placed before the court. The Criminal

Procedure Code, section 187 thereof is silent in this regard. It is

usually in cases of capital offences and armed robbery that an

accused is restrained.

2. The charge or information preferred against the accused

person shall be read and explained to him in the language

he understands to the satisfaction of the court by the

registrar or other officer of the court.

This requirement is a statutory reinforcement of the provisions

of Section 36 (6) (a) of the Constitution which provides that every

person charged with a criminal offence shall be entitled to be

informed promptly in the language that he understands and in

details of the nature of the offence. This imposes a duty on the

court to ensure that what is read over to the accused person is

understood by him. Consequently, it is the practice for the court to

first inquire from the accused person whether he understands the

English language; so as to determine whether he needs an

43

interpreter. The accused is then asked if he understands the

charge against him – by the judge.

Note however, that the court is not duty bound to specifically

record that a charge was read over and explained to an accused

person to its satisfaction before he pleaded thereto. See the cases

of IGP v. Rossek and Kajubo v. The State respectively, for the

principles that where the court failed to read the charge to the

accused person, nor take his plea, his subsequent trial is a nullity

and where the court failed to read and explain to the accused the

offense, the entire proceedings is null and void. However, failure to

so record will not render the trial a nullity.

Again, while the section 215 of the Criminal Procedure

Act and section 211 of the Administration of Criminal Justice

(Repeal and Re-enactment) Law, 2011 of Lagos State are

specific on who should read the charge to the accused, such as

the bailiff, court clerk or court messenger, the Criminal Procedure

Code, section 187 thereof, is silent on who should do the reading.

Thus, it is possible for the judge or prosecuting counsel to read the

charge to the accused under the Criminal Procedure Code. Also,

while the Criminal Procedure Act and Administration of

Criminal Justice (Repeal and Re-enactment) Law, 2011 of

Lagos State provide specifically that the charge shall be read and

explained to the accused to the satisfaction of the court, the

Criminal Procedure Code is silent on the question of satisfaction of

the court.

Lastly, under the Administration of Criminal Justice

(Repeal and Re-enactment) Law, 2011 of Lagos State, the

charge shall be read and explained to the defendant in the

presence of a legal practitioner representing the defendant.

44

3. The accused person shall be called upon to plead instantly

to the charges read over to him, unless there is a valid

reason not to do so.

A good example is the position that, the court may adjourn

pleadings where the accused is entitled to service of the charge or

information and the court finds that he has not been duly served.

Also, while under the Criminal Procedure Act and

Administration of Criminal Justice (Repeal and Re-enactment)

Law, 2011 of Lagos State, the accused shall “plead instantly

thereto”; the Criminal Procedure Code is to the effect that the

accused shall be asked whether he is “guilty or not”.

Principles Governing Plea

1. It is only the accused to whom the charge is read over and

explained that will be called upon to enter a plea. The plea must

therefore be personal; it is a personal exercise.

2. One person cannot plead “guilty” or “not guilty” on behalf of the

other accused persons, where there are several accused

charged together.

3. Counsel cannot enter a plea on behalf of the accused nor

change his plea. In R. v. Pepple, the accused was charged with

the commission of an offence for which he pleaded not guilty. In

the course of the trial, counsel change the plea to that of guilty.

On appeal, it was held that the plea of guilty entered by counsel

on behalf of the accused was wrong and nullifies the whole trail.

4. The accused who has pleaded guilty may change his plea at

any time before judgment.

5. Several accused persons cannot enter a plea through one of

them. In Adamu v. The State, a plea by one accused person

45

on behalf of other accused persons was held to have rendered

the trial null and void.

6. Where an accused is charged with more than one offence, he

must plead separately to each individual offence contained in a

charge sheet. However, in Ayinde v. The State, the appellate

court held that failure to obtain a separate plea for each count

was a mere irregularity which in the absence of miscarriage of

justice will not vitiate or nullify the proceedings.

7. Similarly, where several accused persons are charged together,

it is desirable that they plead separately in respect of each

offence.

8. The plea must be recorded in as nearly as possible in the words

used by the offender – section 218 of the Criminal Procedure

Act and section 213(1)(i) of the Administration of Criminal

Justice (Repeal and Re-enactment) Law, 2011 of Lagos

State; but, not in the Criminal Procedure Code. In Ede v. The

State, the record of proceedings did not show that the accused

person‟s plea was recorded; the appellate court allowed the

appeal.

9. The accused must be present in court before his plea is taken

and the absence of the accused person‟s counsel during plea

shall not render his trial null and void.

Options Open to an Accused Person on Arraignment

There are various ways by which the accused person may

plead or react to the charge read and explained to him. He may fail

or refuse to plead. He may also raise preliminary objections to his

trial rather than plead to the charge. He may plead to the charge

either by pleading guilty; guilty with reasons; not guilty of the

offence charged, but guilty of another offence not charged; not

46

guilty by reason of insanity; among others. We will attempt to

explain these options one by one.

a. Preliminary Objections (usually by way of notice)

The accused may raise preliminary objections to his trial

before pleading to the charge, by challenging the jurisdiction of the

court to try him or to try the offence charged; by alleging a defect in

the charge, by alleging that the consent of a judge was not

obtained before the charge or information was filed; by alleging

that the actions is not properly instituted; by alleging that the action

is statute barred; by alleging that the trial will amount to double

jeopardy; by alleging that he has been pardoned; among others.

The substance of these varying grounds for preliminary objection

will now be examined.

1. Objections on Grounds of Jurisdiction

Jurisdiction is dependent on whether the court is a court of

general or special criminal jurisdiction. Based on the case of

Madukolu v. Nkemdilim, the objection may be that;

(a) The court is not properly constituted as regards the number

and qualifications of the members of the bench; or

(b) The proper party is not before the court; or

(c) The subject matter is not within the courts competence to

handle; or

(d) The case is not commenced by due process of law; or

(e) There is a feature in the case that robs the court of

jurisdiction.

2. Objection to a Formal Defect on the Face of the Charge

An example of a formal defect in a charge is that the charge not

signed by the appropriate authority. Also, a charge is defective

when it is not framed in accordance with the rules of drafting

47

charges. Some defects are material such that a conviction based

on such a charge cannot sand while others are regarded as mere

irregularity. Where a defect is material, then it is incumbent on the

accused to raise an objection to such a charge and the right time

to raise such objection is as soon as the charge is read and before

his plea is taken: section 167 Criminal Procedure Act.

In Obakpolor v. The State (1991) 1 NWLR (Pt. 165) 113, the

Supreme Court held that an accused person who pleads to a

charge after it is read over and explained to him, might not

thereafter successfully raise an objection to a formal defect on the

face of the charge such as error in stating the offence or the

punishment section or particulars of the offence – section 166 of

the Criminal Procedure Act, section 206 of the Criminal

Procedure Code and section 158 of the Administration of

Criminal Justice (Repeal and Re-enactment) Law, 2011 of

Lagos State.

3. Objection on the Ground that the Right of Action is Statute

Barred

Generally, limitation of action or statutes of limitation does

not run against a crime. Thus, where a person commits an offence

he can, as a general rule be proceeded against anytime. However,

there are cases where statutes provide that certain criminal action

must be commenced with a given period of time. Where this is the

case, the accused may object to the charge on the ground that the

crime is caught up by time except on a charge or conspiracy.

4. Objections on the Grounds of Failure to obtain Leave/Consent to file the information or Charge: Except Lagos State and Federal High Court.

48

In Attorney General of the Federation v. Clement Isong, it

was held that failure to obtain leave can cause the judgment to be

set aside. Also, in Abacha v. The State, the court effectively held

that failure to obtain leave of the court means that the ruling can be

quashed on appeal.

5. Objection on Grounds of Double Jeopardy

The law does not subject any person to double jeopardy or

double trial – Section 36(9) of the 1999 CFRN. This is otherwise

known as double jeopardy or the plea of autre fois convict or acquit

which involves the establishment of the following ingredients.

(a) That the first trial was on a criminal charge

(b) That it was before a court of competent jurisdiction

(c) That is ended in an acquittal or a conviction

(d) That it was for the same offence or for an offence with

similar ingredients as the present one.

6. Objection on Ground of Pardon (based on section 36(10) of

the 1999 CFRN)

In Nigeria Army v. Brig-Gen. Aminu Kanu, the Supreme

Court held that where a person has been pardoned for an offence,

a bar to further prosecution has been placed between him and

those offences. Pardon presupposes conviction. The burden to

prove pardon is on the accused and that burden is discharged by

the production of a certificate of pardon. The pardon must be by

the appropriate authority for the same offence.

Note that in a plea of pardon, the accused/defendant is

saying that he should not be tried again because the appropriate

authority has pardoned his conviction in respect of the same

offence while in a plea of autre fois convict or acquit, the accused

is saying that he should not be tried again because he had earlier

49

been convicted or acquitted by a court of competent jurisdiction for

the same offence.

Again, the appropriate authority that can grant pardon in

respect of a federal offence is the President of Nigeria acting in

accordance with the advice of the Council of State: section 175 of

the 1999 CFRN. In respect of state offence, the appropriate

authority is the Governor of the State who shall exercise the power

of pardon after consultation with Advisory Council of the State on

Prerogative of Mercy.

7. Objection on grounds that Trial is for an Offence unknown

to Law

The basis of this objection is Section 36(12) of the 1999

CFRN which stipulates that a person can only be tried for a

criminal offence known to law and for an offence with a

punishment prescribed in a written law. The case of Aoko v.

Fagbemi applies.

8. Objection on Ground that the offence is charge under a Retroactive Legislation

The basis for this is Section 36(8) of the 1999 CFRN which

provides that no person shall be held criminally liable on account

of an act or omission which did not at the time it took place

constitute an offence.

9. Objection on ground that the penalty prescribed for the

offence is heavier than that prescribed.

This is actually a ground of appeal in a criminal proceeding.

b. Plea

Criminal proceedings commences with a “Plea”. Plea submits

the man (accused) to the jurisdiction of court. When a charge is

amended, there must be another plea. Also, when a magistrate is

50

trying a case and for one reason or another he can longer continue

with the case; the effect of which is that another Magistrate takes

over the case, a fresh plea should be taken unless the trial is

concluded or judgment has already been written but yet to be

pronounced.

Note that if an accused is silent as a result of insanity (that is to

say that he fails to plead when called upon to plead), the proper

order is to stop the proceedings and remand him in protective

custody. But the case continues when the accused pleads not

guilty by reason of insanity, the proper course consequently being

for the court to determine if an offence was committed by the

accused and the accused‟s state of mind when he committed the

offence. We attempt to explore the different ramifications of plea.

i. Plea of not Guilty to the offence charged but Guilty of

another Offence not charged

An accused who pleads not guilty to the offence charged; but

guilty of an offence which he is not charged with may be convicted

if;

(a) The offence is one which the court has jurisdiction to

punish;

(b) The plea is accepted by the court;

(c) The prosecution accepts the plea; and

(d) The plea satisfies the conditions precedent to the

conviction of an accused person who has pleaded

guilty.

ii. Plea of Guilty

In plea of guilty, the plea can only acceptable after the facts

is further explained to the accused by the prosecution and also the

ingredients must be explained to the accused person by the

51

prosecution. Before a court can convict on a plea of guilty, the

court must be satisfied;

(a) That the accused understands the charge read to him

and the offence charged.

(b) That the accused intends to and actually admits the

facts as alleged by the prosecution.

(c) That the plea is unequivocal in its admission of the

charge.

(d) That the facts stated by the prosecution and admitted

by accused supports the charge and sustains same.

(e) That, in case of an offence which can only be

constituted by expert evidence, that such expert

evidence was made available before conviction on a

plea of guilty.

(f) That the offence charged is not a capital offence.

iii. Failure or Refusal to Plead

“Failure to plead” refers to a situation where an accused

who is called upon to plead stands mute; while “refusal to plead”

is a situation where an accused deliberately withholds plea. Failure

to plead may be as a consequence of voluntary conduct, example

malice or involuntary conduct, example insanity. The position of

the law is that whenever there is failure to plead on the part of the

accused, the court must investigate the reason for the muteness,

which may involve medical evidence, in order to ascertain whether

it is as result of malice or insanity. If it is as a result of malice – a

plea of not guilty is entered; but if it is as a result of insanity, the

proceeding is terminated and the accused detained in an asylum.

52

iv. Plea of Guilty by reason of Insanity

The court will determine the following, once there is a plea of

not guilty by reason of insanity:

(a) Was an offence committed?

(b) Did the accused commit the offence?

(c) Did he commit it while he was insane?

If yes, the court will order that the accused be remanded at

the pleasure of the Governor.

Attendance of the Accused in Court

The accused person must be present in court throughout the

whole proceedings. He must attend his trial from the day he is

arraigned to the day he is sentenced: section 210 of the Criminal

Procedure Act and section 153 of the Criminal Procedure

Code. Trial in absentia is unknown to our laws. Criminal

proceedings shall not be conducted in the absence of the accused

person otherwise; the proceedings shall be null and void: Adeoye

v. The State (1999) 6 NWLR (Pt. 605) 74. However, the presence

of the accused person in a criminal trial may be dispensed with if:

(a) He misconducts himself by so interrupting the proceedings or

otherwise as to render their continuance in his presence

impracticable: section 210 of the Criminal Procedure Act.

(b) He is charged with an offences for which the penalty does

not exceed N100 fine or 6 months imprisonment or both such

fine and imprisonment provided that the accused person

pleads guilty in writing or appears and so pleads by a legal

practitioner: section 100 of the Criminal Procedure Act

and section 154(2) of the Criminal Procedure Code.

(c) The court is investigating the unsound mind of the accused

person and it would be in the interest of the safety of the

53

accused or of other persons or in the interest of public

decency to do so: section 223(2) of the Criminal

Procedure Act and section 320 of the Criminal Procedure

Code.

Take Notice that in the North, the court can convict an accused

in absentia; but cannot sentence him in absentia.

Attendance of the complaint in Court

The complaint must be present in court during criminal trial.

Where the complaint has due notice of the time, place and date of

hearing and does not appear in court; the court shall dismiss the

complaint for want of diligent prosecution; unless the court, having

received a reasonable excuse for the non-appearance of the

complainant or for some other sufficient reason, think fit to adjourn

the hearing of the case to some future day upon such terms as the

court may think just (example foreclosure): section 180 of the

Criminal Procedure Act and section 165 of the Criminal

Procedure Code.

Attendance of Vital (Material) Witnesses in Court

Witnesses are material in both the case of the prosecution

and the defence. There is no particular number of witnesses that

the prosecution must call before it will be taken to have proved its

case: section 200 of the Evidence Act. All the prosecution needs

to do is to call enough material witnesses to prove its case and not

to call every single material witness. The number of witnesses to

be called is at the discretion of the prosecution. The prosecution is

not under a duty to call all material witnesses. However, where the

prosecution fails or refuses to call a material witness, the court

may reasonably infer that if the witness had been called; his

54

testimony would have been favourable to the accused person:

Ogbodu v. The State (1987).

Attendance and Ethical Duties of Counsel in Court

Counsel must attend all sittings of court unless he had

obtained leave of court to be absent: Okonofuo v. The State

(1981). In relation to attendance of a counsel in court, the following

ethical obligations are owed:

1. By Rule 14(4) of the RPC, it is the duty of a lawyer

employed in respect of a court case to be personally present

or be properly represented throughout the proceedings in

court.

2. By Rule 37(2) of the RPC, a lawyer is mandated to

personally conduct the defence of an accused charged with

murder.

3. By Rule 30 of the RPC, a lawyer is an officer of the court

and should not do any act to delay or adversely affect the

administration of justice.