UNIT 6

EFFECT OF A DEFECTIVE CHARGE

In criminal litigation, a charge is the formal accusation that a person has committed an offense. The charge outlines the specific offense and the details necessary to inform the accused of the case against them. The importance of a properly drafted charge cannot be overstated, as it serves as the foundation upon which the criminal trial is built. A defective charge can have significant legal consequences, potentially impacting the entire proceedings. A charge is considered defective if it fails to meet the requirements set out by law. This may include:

1. Failure to state the essential elements of the offense: Every charge must contain the elements that constitute the offense as defined by law.
2. Vagueness or ambiguity: If a charge is unclear or ambiguous, it may be difficult for the accused to understand the nature of the allegations against them.
3. Improper citation of the law: Incorrectly citing the relevant statute or section under which the offense is charged can render a charge defective.
4. Omission of necessary details: Omitting key details such as the time, place, or circumstances of the alleged offense may lead to a defective charge.

LEGAL FRAMEWORK GOVERNING CHARGES IN NIGERIA

The legal provisions regarding the drafting and validity of charges in Nigeria are primarily found in the criminal procedure act (CPA) and the criminal procedure code (CPC), depending on the jurisdiction and also the administration of criminal justice act (ACJA) 2015 which applies in the federal capital territory and other states that have adopted it. See section 195 of the CPA which requires that every charge must contain sufficient details of the offense to inform the accused of the nature of the charge, section 196 of the CPA which states that a charge should not contain any surplus information that is not necessary to the charge and see also section 36(6)(a) of the constitution of the federal republic of Nigeria, 1999 (as amended) which guarantees the right of the accused to be informed promptly and in detail of the nature of the charge.

CONSEQUENCES OF A DEFECTIVE CHARGE

A defective charge can have various legal consequences, depending on the nature and severity of the defect. Some of the key consequences include:

1. Dismissal of charges: If a charge is found to be fundamentally defective, the court may dismiss the charge outright. This is because a defective charge undermines the fairness of the trial and violates the constitutional right of the accused to a fair hearing. See the case of Bello v. State (1967) NMLR 1, where the supreme court held that a charge that fails to disclose an offense known to law is incurably defective and must be quashed.
2. Amendment of charges: In some cases, a defective charge may be amended to correct the defect. The court has the discretion to allow such amendments, provided that the amendment does not cause injustice to the accused. See section 163 of the CPA which allows for the amendment of charges at any stage of the trial, provided the amendment does not prejudice the accused and the case of Okosun v. Attorney General Bendel State (1985) 6 NCLR 315, where the court held that an amendment to a charge can be allowed if it corrects a formal defect and does not alter the substance of the charge.
3. Mistrial: A defective charge may lead to a mistrial if it is discovered after the trial has commenced. This typically occurs when the defect is such that it affects the entire proceedings, making it impossible for the trial to continue fairly. See the case of Adeoye v. State (1999) 14 NWLR (Pt. 637) 43, where the court declared a mistrial due to the discovery of a fundamental defect in the charge after the commencement of the trial.

REMEDIES AVAILABLE TO THE ACCUSED

When faced with a defective charge, the accused has several remedies available which includes the following:

1. Application for dismissal or quashing of the charge: The accused can apply to the court to dismiss or quash the charge on the ground that it is defective. This is particularly applicable where the defect is fundamental and cannot be cured by amendment.
2. Application for amendment of the charge: The accused may also apply for the charge to be amended, especially where the defect is formal rather than substantive. This application is usually made under section 163 of the CPA.
3. Raising a preliminary objection: The accused can raise a preliminary objection to the charge before the commencement of the trial. This is a procedural step taken to challenge the validity of the charge before the trial proceeds. See the case of Duru v. Nwosu (1989) 4 NWLR (Pt. 113) 24, where the court held that a preliminary objection can be raised to challenge the competency of the charge before the trial begins.

CONCLUSION

The effect of a defective charge in criminal litigation cannot be overstated, as it directly impacts the fairness and validity of the trial. Nigerian law provides for various mechanisms to address defective charges, including dismissal, amendment, and mistrial, depending on the nature of the defect. It is essential that charges are carefully drafted to ensure that they meet legal standards and uphold the rights of the accused to a fair trial.