CRIMINAL LITIGATION: INSTITUTING CRIMINAL PROCEEDINGS AND DRAFTING OF CHARGES

N.B: Kindly refer to our last post last week on the persons who can institute criminal proceedings.

PLS THIS JUST A GUIDE, FRAMED FROM CLASS NOTES AND TEXTBOOK  AND STATUES, DUE TO THE IMPORTANCE OF THIS TOPIC PLS READ THE STATUES MENTIONED.

YOU DO NOT READ DRAFT NOR DRAFT BY LYING DOWN, YOU PRACTICE DRAFTING…….MR TIJANI

                             MODES OF INSTITUTING ACTIONS

IN THE MAGISTRATE COURT IN THE NORTH

BY LAYING A FIRST INFORMATION REPORT (F.I.R)

N.B: THIS IS ONLY APPLICABLE IN THE MAGISTRATE COURT IN THE NORTH AND F.C.T

STATUES: PLS READ S.117-118 CPC, S.112 ACJA

PROCEDURE

1.      A suspect is arrested usually without warrant is brought to a Police Station

2.      The officer in charge listens to the complaint against him (usually IPO)

3.      TWO THINGS WILL HAPPEN AFTERWARDS;

A.     If he is satisfied with the information that public interest will be served by a prosecution;

                                                            i.            he reduce the complaint into writing in the form of FIR

                                                          ii.            He reads it to the suspsect who will upon satisfaction, sign same.

B.     If he is not satisfied;

                                                            i.            he may refuse the information and the alleged offender released.

THEREAFTER,

4.      The suspect and the FIR are taken to before the Magistrate who ;

i.                    If satisfied that the allegation is well founded, direct the matter to the Magistrate with jurisdiction to try the matter

ii.                  If it is a matter over which the recurring magistrate has jurisdiction to try, he may hear the matter

SO,

5.      The particulars of the offence of which the suspect is accused will be read out to him and he will be asked if he has any cause to show why he should not be tried by the Magistrate.

TWO THINGS HAPPEN;

FIRSTLY, if he admits commission of the offence, his admission shall be recorded as nearly as possible in the words used by him and he can be convicted summarily without even drafting a formal charge (S.157(1)CPC, S.112(8).

N.B THIS IS WHAT IS CALLED SUMMARY TRIAL PROCEDURE

SECONDLY, if he denies, and states that he will show cause why he should not be convicted, the Magistrate shall proceed to hear the complaint and take evidence from prosecution witness.

6.      So the prosecution witness will be invited to call witness after which the magistrate will draft a formal charge (see. S.160 CPC, S.112(11)]

7.      If at any stage before the Judgment it appears to the Magistrate that the case is one which ought to be tried by the High Court, he shall frame the charges and commit the offender to the High court for trial.

NOW LET TALK ABOUT DRAFTING IN THE MAGISTRATE COURT IN THE NORTH

WHO WILL BE THE DRAFTING AUTHORITY? THE MAGISTRATE (He drafts the charge)

WHO WILL BE THE PROSECUTORIAL AUTHORITY? THE COMMISSIONER OF POLICE

REFERENCE NO: CASE NO

THE CHARGE SHEET WILL BE DIVIDED INTO 3 PARTS;

1.      Introductory Paragraph

2.      Main body

3.      Directional paragraph.

THE WORD “THAT YOU” will be used when drafting.

N.B: KINDLY REFER TO SECOND SCHEDULE OF YOUR ACJA, AND APPENDIX B OF YOUR CPC FOR SAMPLE DRAFT

VIP CASES TO TAKE NOTE

IBEZIAKOR V COP:  the procedure that the Magistrate drafts charges after listening to the prosecution witness was challenged on the ground that it was unconstitutional in that it amounted to presuming the accused person guilty.

            The court held that it is not unconstitutional, what the court did was a determination of whether there was a PRIMA FACIE case against the accused to warrant trying him and not the determination of his guilt or innocence.

HARUNAMI V BORNO NATIVE AUTHORITY:  The court held that it Is mandatory for the magistrate to listen to prosecution witness and then cross-examination (if any), before he frame any charge. Where he fails to do this, the trial will be nullity.

IN THE MAGISTRATE COURT IN THE SOUTH

BY PREFERRING A CHARGE (meaning the person arrested usually without a warrant before a magistrate under a charge sheet)

STATUES: S. 78(b) CPA, S.78(1)&(2) ACJL, S.143 CPC

PROCEDURE

The person arrested is brought to the Magistrate upon a CHARGE which as of practice is prepared and signed by a police officer together with all necessary particulars of the arrested person;

1)      Name of the offender

2)      Place of the offence

3)      Date of the alleged offence

4)      Place of the offence

5)      The person or thing against whom/which the offence is committed.

NOW LET TALK ABOUT DRAFTING THE CHARGE

DRAFTING AUTHORITY: POLICE OFFICER OR LAW OFFICER

PROSECUTORIAL AUTHORITY: COMMISSIONER OF POLICE

REFRENCE NO: CHARGE NO

N.B: No need for the 3 paragraph stated in the North, all he does is to state the particulars of the offence or offences that are being charged and append signature, name and designation after the charge.

IN THE HIGH COURT IN THE SOUTH (CPA STATES ONLY)

Ways for commencing actions in the high court in the South;

1)      By filing Information  with the consent of the High court Judge

2)      By Laying Complaint before a High Court Judge

WE SHALL ONLY BE DISCUSSING THE NUMBER 1

BY FILING AN INFORMATION WITH THE CONSENT OF A HIGH COURT JUDGE

STATUTES: S.77(b) S.340(2) CPA

PROCEDURE

1.      The information here may be filled by the Attorney-General,  an officer in his department or any legal practitioner he has appointed to file such information

2.      The consent of the high court Judge is a CONDITION PRECEDENT in filing information in the High Court in the CPA states

IN ATTORNEY-GENERAL V CLEMENT ISONG:  In this instant case, information containing two counts of offence was filled against the accused at the High Court without prior consent of the High Court Judge, he was tried on the counts but at the conclusion of trial, defense raised objection to the filing of the information without the consent of a high court Judge. The court quashed the information.

The issue of consent goes to the root of jurisdiction of the court, from the 3^rd condition laid down in MADUKOLU V NKEMDILIM on jurisdiction of a court that is, the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.

The reason for consent was explained in the case of FRN V WABARA: the court emphasized that it is oppressive and unconstitutional to put a person on trial unless the court approached to grant the leave for the trial is satisfied that the materials accompany the application disclose enough facts to wants a trial.

APPLICATION FOR CONSENT (PROCEDURE)

N.B: CPA is silent on the procedure; however by virtue of Section 363 CPA an English rule is applicable. The INDICTMENT (PROCEDURE) RULES 1971 provides;

1. A copy of the proposed charge

2. Written application seeking consent- if not the A.G, it must be accompanied with an affidavit by the applicant

3. Proofs of evidence

4. List of exhibits to be relied upon

SPECIMEN FOR APPLICATION: SEE PAGE 441OF  AGABA

N.B: THE JUDGE BEFORE GRANTING CONSENT MUST CONSIDER THE PROOF OF EVIDENCE TO SATISFY HIMSELF THAT THERE IS A PRIMA FACIE CASE.

IN IKOMI V STATE:  The court held that where the proof of evidence in the opinion of the judge discloses a prima facie case justifying calling on the accused for explanation, consent will be granted.

IN ABACHA V STATE: The court held that where the proof of evidence does not disclose a prima facie case, the Judge will refuse the application.

POSER: ANY OPTION OPENED TO THE APPLICANT WHEN HIS APPLICATION IS REFUSED?

YES, IN GALI V STATE: The court states that the applicant can repeat the same application before another judge.

However, in ABACHA V STATE: An issues was addressed on what if the application was not brought pursuant to the said rules i.e INDICTMENT PROCEDURE RULES.

            The court held that a mere letter to the judge is sufficient provided it accompanied by proofs of evidence.

NOW LET TALK ABOUT DRAFTING

DRAFTING AUTHORITY: ATTORNEY GENERAL OR LAW OFFICER ON HIS BEHALF

PROSECUTORIAL AUTHORITY: THE STATE

REFERENCE NO: CHARGE NO

V.I.P A PREAMBLE IS REQUIRED WHEN DRAFTING AN INFORMATION IN THE SOUTH

Also, in drafting information every head of offence must be stated in two distinct paragraphs;

1.      Statement of offence

2.      Particulars of offence

IN THE HIGH COURT IN THE NORTH

Ways of commencing actions are;

1.      By preferring a charge with the leave of a High Court Judge

2.      By laying complaint before a high court judge.

We shall only be discussing the number 1

BY PREFERRING A CHARGE WITH THE LEAVE OF A HIGH COURT JUDGE

STATUTE: S. 185(b) CPC

PROCEDURE

This quite similar to the procedure in the south, the difference is that the south procedure was gotten from the English rule. In the North the procedure is provided in CRIMINAL PROCEDURE (APPLICATION TO PREFER A CHARGE IN THE HIGH COURT) RULES 1970;

The application must be in writing and must be signed by the applicant; the applicant must accompany it with;

1.       A copy of the charge sought to be preferred

2.      A written application- if made by another person apart from the A.G, then it must be supported with an affidavit

3.      Proofs of evidence

4.      Statement that the evidence shown in the proof will be evidence which will be available at the trial

5.      In addition to the above the applicant must state whether a previous application has been made and the result of such application and that no preliminary inquiry is being conducted on the matter.

N.B: Under CPC a leave to prefer a charge is a CONDITION PRECEDENT to the exercise of jurisdiction. Where such leave is not obtained from a judge of the high court, the trial and any subsequent conviction will be a nullity.

This was affirmed in BATURE V STATE: Where the leave of the high court judge was not obtained before the charge was filed. The appellant was tried and convicted.

The court held that where the prosecution fails to obtain leave before filing the charge, it robs the court of jurisdiction.

POSER: ANY OPTIONS OPEN TO AN APPLICANT whose APPLICATION FOR LEAVE WAS REFUSED?

YES, Under the CRIMINAL PROCEDURE (APPLICATION TO PREFER A CHARGE) RULES, we have two options;

1.      He may apply to another judge of the High court seeking the same leave

2.      He may appeal against the order refusing the leave.

OPTION1: APPLYING TO ANOTHER JUDGE OF THE HIGH COURT SEEKING THE SAME LEAVE

Based on the provision in RULE 1, 2 &3 of the CRIMINAL PROCEDURE (APPLICATION TO PREFRE A CHARGE) RULES; the discretion to grant leave resides with the judge and not the court. This gives the applicant the opportunity to apply to another judge in another court.

In STATE V GALI: In this case the contention was that the respondent at the trail court approached another Judge of the High Court after an application for leave has been refused by a judge of co-ordinate power.

The Supreme Court pointed out that since the discretion to grant leave in S.185(b) CPC is given to ‘’a judge of the High court’’ and not to the High Court, the applicant if good cause is shown could make the application to as many judges as possible.

OPTION 2: APPEAL AGAINST THE ORDER REFUSING LEAVE

In STATE V GALI: The court stated that an aggrieved party who has been refused leave after both sides have been heard as in this case, he cannot lose his constitutional right of appeal simply because it is an exercise of discretion.

NOW LET TALK ABOUT DRAFTING

DRAFTING AUTHORITY: A.G OR LAW OFFICER ON HIS BEHALF

PROSECUTORIAL AUTHORITY: THE STATE

REFRENCE NO: CASE NO

N.B: No need for preamble and the head of offence is One (CHARGE) unlike the south (COUNT)

                          IN HIGH COURT IN LAGOS STATE (ACJL).

STATUES: S.77(1)(b)

V.I.P: The mode of commencing action is by filling information without the consent or leave of the high court judge.

DRAFTING THE CHARGE

DRAFTING AUTHORITY: A.G, OR ANY LAW OFFICER ON BEHALF OF THE A.G

PROSECUTORIAL AUTHORITY: STATE OF LAGOS

V.I.P A PREAMBLE IS REQUIRED WHEN DRAFTING AN INFORMATION IN THE SOUTH

Also, in drafting information every head of offence must be stated in two distinct paragraphs;

1.      Statement of offence

2.      Particulars of offence

                                   IN HIGH COURT IN ABUJA (ACJA)

STATUES: S.109 ACJA

It almost similar with the provision in ACJL i.e Lagos, The mode of commencing action is by filling information without the consent or leave of the high court judge.

DRAFTING THE CHARGE

DRAFTING AUTHORITY: A.G, OR ANY LAW OFFICER ON BEHALF OF THE A.G

PROSECUTORIAL AUTHORITY: FEDERAL REPUBLIC OF NIGERIA

V.I.P A PREAMBLE IS REQUIRED WHEN DRAFTING AN INFORMATION

Also, in drafting information every head of offence must be stated in two distinct paragraphs;

1.      Statement of offence

2.      Particulars of offence

                           IN THE FEDERAL HIGH COURT

Criminal trial in the FHC is summary in nature and the mode of commencement is by filing a charge against the accused in the court. See S.33 (2) Federal High Court Act

The charge may be filled by any person recognized by S.56(1) FHCA (Law officer, state counsel, or any other legal practitioner duly authorized on behalf of the A.G of the Federation)-----DRAFTING AUTHORITY

Do you notice that the police was not mentioned in the above statue, it has been settled in the case of F.R.N V OSAHON: The court held that Police officer can also prosecute in the Federal High Court

No need for consent or leave of the judge.

WHAT IS A SUMMARY TRIAL?

By virtue of S.494 ACJA, is a form of trial by a Magistrate or by a High Court commenced without filling Information

Therefore, in drafting Charge sheet for Federal High Court;

1.      No need for preamble

2.      Just one Head Count

3.      PROSECUTORIAL AUTHORITY: FEDERAL REPUBLIC OF NIGERIA.

4.      REFRENCE NO: CHARGE NO.

                                                                          TO BE CONTINUED!!!!!!

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