OPTIONS AVAILABLE TO AN ACCUSED WHOSE CHARGE DISCLOSES NO CRIME

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A charge is a statement made against a person before the court(or tribunal) which states that an accused person has committed a crime. It is  information to an accused telling him that an allegation has been brought against him which is against the  interest and security of the state. It must contain the details and particulars of the offence.

In Nigeria, bringing an accused to the court upon a clear and unambiguous charge is a constitutional provision, not just a mere common law or statutory provision. Section 36(6)(a) of the 1999 Constitution of the Federal Republic of Nigeria( herein after referred to as “the Constitution”) provides that:

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” Every person who is charged with a criminal offence shall be entitled to

(a) be INFORMED in the language that he UNDERSTANDS and in details of the nature of the offence.”

Therefore, bringing an accused before the court upon a clear and unambiguous charge which informs him of the details of the offence in a language that the accused understands is a constitutional right, not a mere rule of procedure. In the case of Timothy v. Federal Republic of Nigeria(2008) All FWLR (402) 1136 a 1152-1153, it was held as follows:

“The system of criminal justice in Nigeria requires that the content of a charge should not be subject of speculation and inference, rather, the essential ingredient of the offence must be disclosed in the charge. This is an inalienable right of the accused person under Section 36(6)(a) of the 1999 Constitution.”

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Regrettably, this constitutional provision is the most frequently breached rule in Nigerian court. I was at a Magistrate Court sitting at Ijaye Ojokoro, Ikeja Magisterial District, Lagos State where this defective charge was read to the accused person:
” That you, Miss ABC(**name withheld**) On the 5th day of March,2014 at about 10am at No 15 Awolumate Street, Ijaiye Ojokoro, Lagos within this Magisterial District, did abuse one Madam XYZ by calling her old cargo and good for nothing person and thereby committed an offence”

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I expected the counsel to the accused to raise an objection to this but he kept mute. I felt sorry for the accused who would have to waste money, resources and time in defending such a frivolous case. In response to this anomaly, I decide to inform anyone standing criminal trial of some rights available to them before the court when the charge against them is ambiguous or discloses no crime. These options are:

(1) Objection on the ground that the crime is unknown to the Law:
It is a settled law in Nigeria that a person shall not be convicted for a criminal offence unless that offence is defined and the penalty is prescribed in a written law; and written law is defined to mean an Act of National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law. See Section 36(12) of the 1999 Constitution and the case of Aoko v. Fagbemi & Anor (1961) 1 All NLR 400.

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For an act to be a crime, their must be a law which makes it a crime. In the absence of any law prohibiting the act of the accused, the accused it entitled to be discharged immediately because the court cannot question a person for an act that is not an issue under the law.
In relation to the charge(allegation) against Miss ABC at Ijaiye Ojokoro Magistrate Court: “…did abuse one Madam XYZ by calling her old cargo and good for nothing person and thereby committed an offence”
The above allegation is not an offence in Lagos State or any civilised nation. It is neither a criminal nor a civil wrong. It is merely a vulgar abuse which is a moral issue. Moreover, the section of the law breached by the accused and the punishment section is not stated in the charge which make the charge subject to speculation.

Upon raising an objection to this, the appropriate order the accused should ask for is an order of discharge. Application for bail is unnecessary here because there is no crime to try. Bail is applicable for an accused who has a pending trial before the court. The accused(or his counsel) should insist on an order discharging the accused even if the prosecution ask the court for an adjournment to frame a new charge. The court has no power to deliberately detain an accused pending the time the prosecution frames a new charge, otherwise, that will amount to holding charge which is against the law.

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(2) Objection on the ground of lack of jurisdiction:
Jurisdiction is the limit on the power of the court to hear and determine issues before it. Before a court can assume jurisdiction in a criminal trial, the crime must have disclosed a crime known to the law. Where the charge does not disclose a crime, the subject matter of the suit is not within the jurisdiction of the court and the matter has not been initiated upon the fulfilment of a condition precedent. This objection can be raised at any stage of the trial even during appeal because the issue of jurisdiction is the most fundamental in law. Where the court has no jurisdiction, any decision made by the court is a nullity. See the case of Madukolu v. Nkemdilim(1992)9 NWLR (pt. 263) 69 at 84.

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(3)Objection on the ground of uncertainty of the offence:
The rule against uncertainty(ambiguity) states that particulars of offence must be stated in the charge. For easier understanding,charges have these particulars:
A= Accused(name of the accused)
D= Date(date and time of commission of offence)
P=Place(where the offence was committed)
O=Offence(clear statement of the offence)
P=Person/Property against whom offence was committed
S=Section of the law contravened

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The acronym is ADPOPS

Usually, the prosecution, especially in magistrate courts, does not state the section of the law upon which the accused is charged. This makes the charge subject to speculation contrary to Section 36(6)(a) of the 1999 Constitution and the case of Timothy v. Federal Republic of Nigeria(supra)

Where any of these particulars are missing especially the punishment section, the accused should quickly object to the charge before his plea is taken. This. Objection may not be available after the accused has pleaded either guilty or not guilty to the offence if it is found out that the accused understands the charge against him and the charge discloses a prima facie offence.

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Criminal action is an embarrassment to an accused and the trauma is worse when the accused is uncertain about the allegation against him and the gravity of the punishment.
It is not the duty of an accused to prove his innocence, rather, it is the duty of the prosecution to prove his guilt, therefore, an accused cannot be put to the task of searching all the laws in the country to establish his guilt or innocence. For bringing a charge which does not state the section of the law breached by the accused, the prosecution is calling on the accused to prove his innocence that he has not breached any law prevailing in the jurisdiction.

Note: If a charge discloses a prima facie offence, under this objection, the most appropriate application to make is an application for bail because the order the court will likely grant to the prosecution is an order of amendment of the charge. The court will not likely terminate the life of the suit for technical error when there is a prima facie offence to try.

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Ayekoloye David Bankole (LLB,BL.)
For more information, contact us for free legal advice

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