Charge

By section 167 (supra), on the other hand, any objection to a charge for any formal defect on the face thereof shall be taken immediately after the charge had been read over to the accused and not later. Put differently, an accused person is under obligation to raise any objection to any formal defect to a charge before he takes his plea

Ibrahim v. State LGC(27/3/2015) H

There is also nothing to indicate that Appellant was misled by the non-inclusion of the said definition Section in the Charge. As the Court of Appeal rightly observed, the said Charge stated the specific name of the offence committed and the written law, therefore, the Appellant had sufficient notice of what he was up against when he pleaded not guilty to the Charge read to him.
The important question is whether the Appellant was misled by the error or defect in the Charge – Ogbomor V . State (supra). The Appellant was charged with an offence known lo law and he was represented by counsel from Plea to Judgment stage, and since there is no evidence that the Appellant was misled, no miscarriage of justice occurred and the conviction is right. The said issue 1 is, therefore, resolved against the Appellant.

The above decision of the Court of Appeal cannot be faulted and this is where I say that the Respondent is absolutely right. The Appellant had reason to complain but it is the timing or the stage of making his objection that put the spanner in the works. Section 167 of the CPA says that any objection to a Charge for any formal defect on the face of it shall be taken immediately after the Charge has been read over to the Accused; not later.

The Appellant's position is that this error vitiates the entire trial; but Section 166 of the CPA makes it abundantly clear that –
No error in stating the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any stage of the case as material unless the accused was in fact misled by such error or omission.
In Ogbomor V. State (supra), also (1985) 1 NWLR (Pt. 2) 223, this Court, per Karibi-Whyte, JSC, explained the law as follows-
Thus, error in stating the statute or in the section of the statute under which the information or charge is laid per se will not be registered as material unless the accused is misled by such omission or error. However, where the omission or error is sufficient so as to mislead the accused in his defence, of the charge, such omission or error is material and would in my opinion, vitiate the trial. Thus, the law distinguishes omission or errors, which are trivial and not material and will not vitiate a trial, and those, which are material and will vitiate the trial. Where the omission or error is material to the charge, it necessarily misleads and will vitiate the trial. For instance, where the information refers to a repealed enactment, and there is no similar offence known to law, the error would be regarded as material and fundamental, and will undoubtedly mislead the accused – See R. Ogunremi (1961) 1 All NLR 467.

The prosecution charged the Appellant for the murder of NDUDIRI ONYEKWERE, NOT NDUBUISI ONYEKWERE, NDUBISI ONYEKWERE, ERNEST NDUBISIS ONYEKWEKWERE, or EARNEST NDUBUISI ONYEKWERE. If therefore they led evidence proving the death of NDUBISI ONYEKWERE through PW.4, then another version of the same murder has been introduced. In PAUL AMEH v. THE STATE (1972) 6-7 SC 27, this Court held that when the prosecution presents two versions of one offence charged, then they had failed to prove the guilt of the accused beyond reasonable doubt. The trial Court is obligated not to convict an accused person in the circumstance and to treat the prosecution's case as unreliable when there are material contradictions in the prosecution's case. See ENAHORO v. THE QUEEN(1965) NMLR 265; KALU v. THE STATE (1988) 4 NWLR (Pt. 90) 503; UKUT v. THE STATE (1995) 9 NWLR (Pt. 420) 392.In the face of material contradictions, there can be no proof beyond doubt in a criminal proceeding.

In the Appellant's Brief, settled by Ajose-Adeogun, Esq. of counsel, it is submitted, and I agree, that it is well settled that to convict a person charged with murder under Section 316 of the Criminal Code, the prosecution must prove beyond reasonable doubt –
a. the death of a human being.
b. that the death was caused by the act of the accused.
c. that the act or acts were done with the intention of causing death or
d. that the accused knew that death would be the probable consequence of his act or omission.
See AKPAN v. THE STATE (1994) 9 NWLR (pt 368) 349 at 359

There are two broad elements the prosecution must establish in order to sustain the conviction of an accused person in a murder charge. That is the actus reus and the mens rea.

Therefore, where a party fails to object to any formal defect on the face of the charge immediately after the charge has been read to the accused person, and takes part in the hearing of the case to conclusion, he is deemed to have forfeited that right to object. The appellant herein, having failed to comply with Section 167 of the Criminal Procedure Act before the trial Court, sought to invoke issue of jurisdiction which does not avail him as the Court below held clearly that G.P Olorunnuhe Esq., was in as good position as Mrs. Deborah Ajayi to sign the charge, both being law officers in the chambers of the Attorney General of Kogi State. This issue does not avail the appellant at all. I accordingly resolve this issue against the appellant.

Section 167 of the Criminal Procedure Act provides that any objection to a charge for any formal defect on the face thereof shall be taken immediately after the charge has been read over to the accused and not later. This provision is mandatory in view of the word "shall" used in the provision that connotes mandatoriness. See Tabik Invest. Ltd & Anor v. GTB PLC (2011) 17 NWLR (pt.1276) 240, Umeanadu v. Attorney General Anambra State & Anor (2008) 9 NWLR (pt. 1091)

The law is quite clear that objection to the charge must be taken before or at the time plea is to be taken, and not thereafter. See Section 167 of the Criminal Procedure Act, Cap 43. This Court, inAdio v. The State (1986) 3 NWLR (PT. 31) 714, also reported in (1986) LPELR – 184 (SC) at pages 27 – 28 paragraphs G – D held as follows:
"The proceedings against the accused commences with the filing of the information. This is why any objection to a formal defect in the charge should be taken before plea, otherwise the objection is taken as having been waived – (See S. 167 Criminal Procedure Act, Cap 43). Similarly a want of jurisdiction which ordinarily could be raised at any stage of the trial is better raised before plea is taken. See R V. Adiukwu (1939) 5 WACA 132. The plea of the accused may, if it is one of guilty of the offence charged, result in the conviction and sentence of the accused at the end of the trial, unless there is sufficient cause to the contrary – (See S.218 Criminal Procedure Act, Cap 43). This procedure cannot be correctly described as a trial without a hearing. It is important that the accused must himself plead to the charge or information – See R. V. Hayes (1951) I K.B. 94.
See also Attah v. The state (2010) LPELR – 597(SC), Agbo v. The State (2006) 6 NWLR (pt. 977) 545, Adekunle v. The State (2006) 14 NWLR (pt. 1000) 717.

By Section 211(1) of the 1999 Constitution of the FRN (as amended), the Attorney General of a State is empowered to institute and undertake criminal proceedings against any person before any Court of law, amongst other duties. And by Subsection 2 thereof, the power conferred on the Attorney General of a State under Subsection one (1) may be exercised "by him in person or through officers of his department".
Both counsel agree that the two law officers are officers in the chambers of the Attorney General of Kogi State. I have no doubt whatsoever that either of them was legally qualified to initiate the proceedings or sign the charge. See FRN v. Adewunmi (2007) 10 NWLR (pt. 1042) 399.
I agree entirely with the position taken by the Court below in this matter. My reason is not far-fetched. Where one counsel in the office of the Attorney General has drafted an application for leave to proffer a charge against an accused person but before the charge is filed, the said counsel is either indisposed or has gone on leave or some other unforeseen incidents occur, will it be reasonable to put the process in the cooler pending when that officer will resume duties whereas there are other competent officers in the Ministry? I do not think that is the way to go. There is nothing legally wrong with the signing of the charge by G. P. Olorunnuhe, Esq., though it was drafted by his colleague Mrs. Deborah Ajayi, the two of them being law officers in the chambers of the Attorney-General Kogi State.

There is no doubt and it is trite law that in a charge of murder, the cause of death must be established by the prosecution, failure of which must lead to the discharge of an accused. See; Joseph Lori v. State (1980) 8-11 SC 52 at 61.

My Lords, from a conspectus of the pronouncements of this Court on the above Section of the Constitution, it is evident that all Agencies charged with prosecutorial powers are qualified to initiate criminal charges in Court. Indeed, even legal practitioners briefed by the Attorney General are competent to initiate charges, FRN v Adewunmi [2007] 10 NWLR (pt 1042) 399; Comptroller, NPS v Adekanye [2002] 15 NWLR (pt 790) 318; AG Kaduna State v Hassan (1985) 2 NWLR (pt 8) 483; The State v Aibangee and Anor (1988) 3 NWLR (PT. 84) 548, 578; (1988) 7 SCNJ (pt. 1) 128, 137, 153; DPP v Akozor (1962) 1 ALL NLR 235; (1962) 1 SCNLR 356; Nafiu Rafiu v Kano State [1980] 8 -11 SC 130; F.R.N. v. Osahon and Ors [2006] 5 NWLR (pt. 973) 361 Amadi v FRN [2008] 18 NWLR (pt 1119) 259, 276.

To be able to establish the three ingredients of the charge of murder stated above, the prosecution's evidence may flow from any of the following ways: –
1. The confessional statement of the accused which has been duly tested, proven and admitted in evidence.
2. By circumstantial evidence which is complete, cogent and unequivocal and heads to an irresistible conclusion that the accused and no other person, committed the offence charged.
3. By direct evidence of eye witnesses who actually saw the accused committing the offence.
See Ugochukwu Okereke v. The State (2016) LPELR – 40012 (SC), Akinlolu v. The State (2015) LPELR – 25986 (SC) Ogedengbe v. The State (2014) 12 NWLR (pt. 1421) 338, Ogba v. The State (1992) LPELR – 2273 (SC), Akinfe v. State (1988) 3 NWLR (pt. 85), 729, Onah v. State (1985) 3 NWLR (pt. 12) 236, Gabriel v. The State (1989) 5 NWLR (pt. 122) 457.

lt is settled law, that a Court is always under a duty to consider any piece of defence posed or raised by an accused person before convicting him on a particular charge. See Oforlete v The State (2000)7 SC (pt.1)80 at 85; Lado v State (1999)9 NWLR (pt.619)369; Uluebeka v The State(2000)4 SC (pt.1)203 at 231.

It is indeed the law that where an accused person is charged under several counts of charge, separate verdicts are required to be passed on each head/count of charge. Section 296(2) of the Criminal procedure Code provides as follows 269 (1) Every judgment shall contain the point or points for determination, the decision thereon and the reasons for the decision and shall be dated and signed or sealed by the Court in open Court at the time of pronouncing it. (2) If the judgment is a judgment of conviction it shall specify the offence of which and the section of the Penal Code or other law under which the accused is convicted and the punishment to which he is sentenced. The law has been reiterated and reinforced by several judicial pronouncements from the apex Court as well as from this Court. Nonetheless, since the ultimate objective of every Court is to do substantive justice and as much as possible, not to sacrifice justice on the altar of technicalities, the Supreme Court in giving recognition to this policy and philosophy of justice, has held that it is not in all cases that such an error will be fatal to the case. For instance, in the case of Solola V State (2005) LPELR-3101(SC) 20, paras D-G, the Supreme Court per Edozie, JSC held as follows Where several persons are tried together, separate verdicts must be returned in respect of each of the accused persons and where there are several counts of information, separate verdicts must be delivered in respect of the several counts. However, the error in failing to return a separate verdict on each count against each accused will not result in quashing of the verdict, where as in the instant case, no miscarriage of justice has occurred. See City Engineering (Nig.) Ltd V NPA (1999) 11 NWLR (Pt. 625) 76 at 89; Eyisi V State (2000) 15 NWLR (Pt. 691) 555 to 574. (Emphasis supplied) Again in Onyejekwe V State (1992) LPELR-2731(SC) 12-13;(1992) NWLR (PT. 230) 444 at 453 SC, the Supreme Court per Omo, JSC, held Once it is...

In respect of the consequences/effect of charging and convicting the Appellant under a wrong provision of the law, the law is that if the facts on which an Appellant was convicted are known to law, the fact that an accused person was charged under a wrong law or section of the law will not lead to his acquittal. See Olatunbosun V State (2013) LPELR-20939(SC) 32 per Akaahs, JSC; Dokubo-Asari V FRN (2007) All FWLR (Pt. 375) 558; (2007) 5-6 SC 150; & Mohammed V State (2007) 7 NWLR (Pt. 1032) 152. In the case of Ogbomor V State (1985) 1 NWLR (Pt. 2) 223 at 233, the Supreme Court held A combined reading of provisions of Section 33(8) and 33(12) of Constitution 1979 suggest that whereas no person can be tried and convicted of an offence which did not exist at the time of its commission, or which is not contained in an existing law, there is no constitutional or other prohibition against trial and conviction of a person for an offence which is known to the law and is in existence at the time of its commission but the relevant statute of which has been incorrectly stated. The Court further held that although it does no credit to the prosecution to describe or set out incorrectly the title of the Act under which an offence is charged, it will be falling into serious error in law and unreasonable depth of technicality occasioning grave miscarriage of justice to hold that the offence does not exist by virtue of the mis-description of the applicable provision of the law. Thus, a mere mis-description of the law under which a charge has been brought does not necessarily render the offence charged unknown to law at the time of the commission of the offence. Therefore, as long as the offence charged discloses an offence in a written law and such a law is in existence at the time of the commission of the act(s) alleged in the charge, the charge is defective, but valid. Consequently, even though the 2004 Act had been repealed by the 2006 Act, the offences of criminal conspiracy...

This Court has in a plethora of authorities held that for the prosecution to succeed against an accused person in a charge of armed robbery, it has to prove beyond reasonable doubt that:
(i) there was a robbery or a series of robberies
(ii) that each robbery was an armed robbery
(iii) that the appellant was one of those who took part in the armed robbery or robberies.
Thus, it is not enough for the prosecution to prove that there was armed robbery, it must go further and establish beyond reasonable doubt that the accused/appellant had participated in the robbery. SeeBozin v The State (1985) LPELR -799 (SC), (1985) 2 NWLR (pt 8) P.465, The State v Salawu (2011) LPELR – 8252 (SC), (2011) 18 NWLR (pt 1279) 580, Olatinwo v The State (2013) 8 NWLR (pt 1355) 126.

in order to establish that an accused person had really committed the offence or the wrongful act. See the case of ANI v STATE (2000) 6 SCNJ 98 at 107.All the ingredients of the offence charged must be established or proved in order to obtain a conviction. Failure to prove any of the ingredients of the offence charged, the accused is entitled to acquittal by the trial or appellate Court. See AGBOOLA VS STATE (2013) 11 NWLR (pt 1366) 619 at 641.

The invocation of the provisions of Section 216 and Section 217 of Criminal Procedure Code to convict the present appellant of the offence of criminal conspiracy to commit armed robbery by the learned trial Judge without a formal charge framed in the circumstance, is a total breach of the constitutional provisions mentioned above.

At the trial the appellant pleaded guilty. The simple question is what is the effect of a plea of guilty to a criminal charge?
When an accused person represented by counsel is arraigned and the charge read and explained to him in the language he understands, and he pleads guilty, the Court shall convict him unless there appears to the Court sufficient cause why he should not be convicted.
A plea is valid only when the accused pleads himself. A trial would be declared a nullity if a plea is made by counsel. It is the duty of defence counsel to guide the accused person on how to plead and the consequences of pleading one way or the other. Once the trial Court is satisfied with the Plea of guilty, the next step is conviction and sentence.

Also, Judicial authorities are firmly established that where the appellant failed to show that a failure of justice has been occasioned as a result of the defective charge, the judgment of the lower Court will not be disturbed on appeal. See the case of Mangai v. State (1999) 3 NWLP (Pt.279) 108 at 117 and Enenegur v. State (2010) All FWLR (Pt.511) 884 at 936.

By arraigning the appellant on First Information Report is nothing more than a charge as it was held in the case of Suleiman v. Commissioner of Police (2008) 8 NWLR (pt.1089) 298 at 320. The law is also well settled that for the Court to consider any defect (if any) in a First Information Report the appellant must prove that such error or omission has occasion failure or miscarriage of justice to him. See the case of Buraima Ajayi & Anor. v. Zaria N. A(1964) NNLR 61 at 65.

As rightly submitted by the counsel for the respondent, the purpose of any charge, be it FIR or information as the case maybe is to precisely inform the accused person of the case he is gong to face at the trial. See the case of Ndukwe v. LPDC (2007) 5 NWLR (pt. 1026) 46. In the case at hand, the contents of the First Information Report was explicitly clear and it precisely and adequately informed the appellant of the case that he was to face before the trial Court.

in a criminal case at any time before Judgment is given in the case. Section 164 (1) and (4) of the same Criminal Procedure Act, further stipulates as follows-
(1) If a new charge is framed or alteration made to a charge under the provisions of Section 162 of Section 163 of this Act, the Court shall forthwith call upon the accused to plead thereto and to state whether he is ready to be tried on such charge or altered charge.
(4) Where a charge is so amended, a note of the order for amendment shall be endorsed on the charge, and the charge shall be treated for the purposes of all proceedings in connection therewith as having been filed in the amended form.
As Karibi-Whyte, JSC, stated in Attah V. State (supra), Subsection (4) renders an amendment retrospective to the date of filing of a charge. Essentially, "the Amended Charge shall replace the original Charge and shall be read and explained to the Accused as the new Charge" – See Uguru V. State (2002) 9 NWLR (pt. 771) 90 [per Kalgo, JSC].
In Uguru V. State (supra), this Court explained that Section 163 of the Criminal Procedure Act does not give any condition precedent to its application but ensures that the Amended charge be read out and explained to the Accused person. Kalgo, JSC, further observed-
This means that whenever the prosecution decides to amend the charge already before the Court, it can proceed to do so. It then applies to the Court to accept the amendment pursuant to the provisions of Section 163 (ibid) and the Court after hearing the Party, may or may not accept or allow the amendment. If it allows the amendment, the amended charge shall replace the original charge and shall be read and explained to the accused as the new charge. If it rejects the charge, the original charge remains. This is what obtains in criminal matters pertaining to amendment of charges generally.

PML (NIGERIA)

Finally on this issue, it is important to consider the effect of the amendment on the Enugu Charge. The FHC Benin stated clearly that "where a charge is amended, the former one seizes to govern the proceedings and remains a nullity and of no useful purpose"; and in affirming the decision of FHC Benin, the Court of Appeal observed-
"The position of the law – – remains the same in the instant situation where the amended Charge accepted on 14/10/2008 was not formally withdrawn but was by force of law no longer in existence consequent to the filing of another Charge by the Prosecutor on 18/12/2008.
The Respondent, citing Section 164 (4) of the Criminal Procedure Act, Attah V. State (1993) 7 NWLR (Pt.305) 257 and FRN V. Adewunmi (2007) 10 NWLR (Pt.1042)399submitted that the said Charge will be deemed to have been filed in the same form as the Amended Charge filed on 18/12/2008. It also argued as follows at page 18 of its Brief –
The effect of the amendment or the substitution of the charge of 18/12/2008 by FHC Enugu in Charge No: FHC/EN/6C/2008 was to relate back to the date that the first Charge was filed and the original charge of 22/1/2008 and that of 13/10/2008 are deemed not to be in existence. The Appellant herein and the other Accused Persons cannot, therefore, claim that they were charged under those original Charges and the Amended Charge of 13/10/2008. The effect of the amendment of 18/12/2008 is to render all previous charges irrelevant.
I agree entirely; Section 163 of the Criminal Procedure Act empowers a Court to alter, amend or add to any charge

PML (NIGERIA)

Where an indictment contains charges for a substantive offence and conspiracy to commit the offence, the proper step for a Court is to first deal with the charge for the substantive offence and then proceed to consider whether the charge for conspiracy ought to have been made at all and whether it is made out. This is so because a conviction for conspiracy will fail if the conviction for the substantive offence is set aside.See Patrick Njovens vs The State (1973) 5 SC 17.

Proof beyond reasonable doubt does not mean proof of a mathematical certainty. It also does not mean proof beyond all possible doubt. A charge is proved beyond reasonable doubt when the facts and circumstances of the case and the quality of the evidence adduced is compelling and reliable to establish the guilt of the accused person. There must be a high degree of probability that the accused person committed the offence. The doubt must be of a reasonable man and the standard must also be of a reasonable man. See
Egwumi v. State (2013) 2 SC (Pt.iii) p.119
Nwaturuocha v. State (2011) 2-3 SC (Pt.i) p.111
Eke v. State (2011) 1-2 SC (Pt.ii) p.219
Ochiba v. State (2011) 12 SC (Pt.iv) p.79

In the result, a person who has been duly tried by a Court which has Jurisdiction of any offence and in the end acquitted or convicted can not later be arraigned before that Court or any other Court for the same offence, for to do so, will amount to double jeopardy and will thus run riot and violent to the above provisions and Section 36 (9) of the 1999 Constitution as amended. It must however be emphasised that for the above provisions to operate, the offence tried and the fresh one to be tried must be the same.

The next point canvassed by parties learned counsel, is whether withdrawal of a charge amounted to an "acquittal". Here I do not think much energy should be exerted in answering this question. The issue of acquittal only arises in a situation where there is a full-blown trial in which evidence was led by the prosecution and the defence or that the latter had admitted committing of the offence charged. Where a Court having jurisdiction, had taken evidence and finally acquitted or convicted an accused person, in that case such acquitted or convicted person can not later be taken or arraigned before another Court or any Court for the trial on the same offence or offences because to do so would certainly amount to double jeopardy. See Section 182 of the Criminal Procedure Act, which is in pari materia with Sections 238 and 239 of the Administration of Criminal Justice Act of 2015. For this provisions to apply, it must be shown through credible evidence that there was a previous conviction or acquittal made by a Court that had jurisdiction to try that person. See Section 36 (9) of the 1999 Constitution. See also Chief of Air Staff vs. Iyen (2005) 6 NWLR (pt. 924) 496 at 535. On the other hand, WITHDRAWAL of charge, does not amount to acquittal as rightly held by the lower Court. The prosecution always has the power to withdraw any charge it had filed earlier before a Court against an accused person. That withdrawal may be done for purpose of abandonment of the charge or for whatever reason the prosecution decides to do so without necessarily informing the trial Court the reason for such withdrawal. Withdrawal can also be done at any stage of the trial before conclusion or before Judgment is delivered either convicting or acquitting the accused person. In some of our laws however, "withdrawal" does not amount to dismissal of the case, in which case a bar to further prosecution could avail the appellant, depending on the circumstance of a given...

The law is trite that to secure a conviction in a charge of armed robbery against an accused person, the prosecution must prove that
(1). There was a robbery, or series of Robberies.
(2). That the accused person or persons were armed with offensive weapons.
(3). That the accused person participated or was one of the robbers.
Once the above ingredients are proved, the trial Court is well positioned to convict on the evidence available. As was stated by this Court in James Simon v. The State (2017) LPELR – 41988 (SC),

A charge is proved beyond reasonable doubt when the facts and circumstances of the case and the quality of evidence adduced is compelling and reliable to establish the guilt of the accused person. There must be a high degree of probability that the accused person committed the offence. The doubt must be of a reasonable man and the standard must also be of a reasonable man.

The error committed by the trial Court in convicting and sentencing the accused for the offence of attempt to escape from lawful custody which the accused was not previously charged for or forming part of the elements of the offences he was charged with is just the same error the Magistrate committed in RAPHEL EKECHUKWU v. C.O.P. (1966) NWLR 96. The High Court of Kano State on appeal (Reed Ag. CJ and Holden J) in correcting the Magistrate stated the law correctly that Sections 216 and 217 of the CPC empower a Court to convict for an offence not charged only when the facts charged have given the accused notice of the facts of the offence of which he is convicted. Sections 216 and 217 of the CPC do not empower Courts to flout the provisions of Section 36(1) & (6) of the Constitution. Nor do they empower Courts to flout the injunction that they must be independent and impartial in criminal proceedings.
The operation of Sections 216 and 217 of the CPC is all about facts. Thus, Indian Courts hold, on provisions in pari materia with Sections 216 and 217 CPC, that the true test is whether the facts charged give the accused notice of the offence for which he is going to be convicted, though he was not charged with it, so that he is not prejudiced by the mere absence of a specific charge. See DHUM SINGH v. EMPEROR A1925, A.448; RACHUNATH KANDU v. EMPEROR A1926, A.227; BALUCHAMI v. EMPEROR A1933, A.843.

THE STATE V. MASIGA (TSOLO):LGC(15/12/2017)I

With respect, I take the humble view that the appellants counsel was right in his submission that "the lesser offence must not only be a kindred offence with the actual offence charge, its ingredients must be embedded in the actual charge." Ezeja v. The State [2008] All FWLR (Pt.428) 256, 268 – 269.
This much is clearly evident in the decisions considered above, TheNig Air Force v Kamaldeen (supra); Agugua v The State (supra); Okobi v The State (supra); Nwachukwu v The State [supra]. Indeed, only recently, this Court in Agugua v The State (2017) LPELR – 4202 (SC) 54 -55; E -A, relying on The Nig Air Force v Kamaldeen (supra), restated the position that:
The law is that before an accused can be convicted for a lesser offence, the ingredients of the lesser offence must be subsumed in the original offence charged and the circumstances the lesser offence was committed must be similar to those contained in the offence charged. See, The Nigerian Air Force v. Kamaldeen [2007] 2 SC 113; 154-55; E – A.

The main purpose of a charge is to give the accused person sufficient notice of the case against him, and once the charge discloses an offence with the necessary particulars that should be brought to his attention, in order to avoid his being prejudiced or embarrassed such a charge will be good in law. See: Akang v. State (1971) NSCC Vol. 7. 55; Ozo V. State (1971) NSCC Vol. 7, 101; Onyekwe v. State (1988) 1 NWLR (Pt. 72) 565; Njoku v. State (1993) 6 NWLR (Pt. 299) 272; Olatunbosun v. State (2013) 17 NWLR (Pt. 1382) 167.

And in any case, it is trite that whenever the phrase on or about is used in a charge, the prosecution is not bound to prove a particular date. The date of the offence could be on the date written in the charge or about that date. In such circumstance, the prosecution must be consistent with a particular date as done in this case.

By virtue of Section 167 of the Criminal Procedure Act, an objection to a charge for any formal defect on the face thereof, must be taken immediately after the charge has been read over to the accused. See Shehu v. The State (supra), Obakpolor v. The State (1991) 1 NWLR (Pt.165) 113 at 124, 129 135, Agbo v. The State (2006) 6 NWLR (pt.977) 545. And accused person, who acquiesced to an irregular procedure of his trial, cannot complain about the irregularity on appeal except and unless it has led to a miscarriage of justice.

The appropriate time to complain or object to a charge as drawn up, is at the time it is being read and before the plea: OKEWU v. FRN (supra) at page 353 per Ariwoola, JSC.

Failure of the accused person to plead to the amended or fresh charge as provided by Section 164 of the Criminal Procedure Act renders the entire proceedings null and void. See R v. Eronini (1953) 14 WACA p.366, Adisa v. AG Western Nigeria (1965) 1 ALL NLR p.412.

Leave means permission.
An informal oral application is made to the trial judge in open Court to amend or file fresh charge/s and leave to amend is not formally granted by the judge. It is implied that leave has been granted when the accused person is called upon to plead to the amended charge or fresh charge. The fact that the accused person pleads to the amended charge is indicative of the fact that leave was obtained.

When it is the desire of a prosecutor to amend the charge or file a fresh charge, he files the process in the Registry and serves a copy of the process on the defence counsel.

The power to alter a charge includes the power to substitute a fresh charge. A charge may be amended after closing speeches but before judgment is delivered provided that Section 164 of the Criminal Procedure Act is complied with. Any amendment can be made provided that there is no injustice to the accused person. See R v Kano & Arisah (1951) 20 NLR p. 32 Okwechima v. Police (1956) 1 FSC p.73

On the charge of conspiracy, this evidence is not at variance with the charge to warrant invocation of the principle that, where the evidence led is at variance with the charge, the charge has not been proved beyond reasonable doubt: AKINLEMIBOLA V. COMM. OF POLICE (1976) 6 SC 207.

A Court may amend or alter a charge or some counts in the charge in any criminal trial before it any time before judgment is given, Section 162-164 of the Criminal Procedure Law. Specifically, Section 163 provides:
Any Court may alter or add to any charge at any time before judgment is given or verdict returned and every such alteration or addition shall be read and explained to the accused.
In the case of Uguru v The State (2002) 9 NWLR (Pt. 771) 90, (2002) LPELR-3325 (sc), the accused person had taken his plea and the prosecution therein filed an amended charge before applying to the trial Court under Section 163 to amend the information. Clarifying the position as provided in Section 163 in the Supreme Court, per Kalgo, JSC, at page 10 of the E-Report, said:
"This section empowers a Court to alter, amend or add to any charge in any criminal case before it at any time before judgment is given in the case. It does not give any condition precedent to its application but ensures that the amended charge be read out and explained to the accused. This means that whenever the prosecution decides to amend the charge already before the Court, it can proceed to do so without asking for permission or leave to do so. It then applies to the Court to accept the amendment pursuant to the provisions of Section 163 (ibid) and the Court after hearing the parties, may or may not accept or allow the amendment. If it allows the amendment, the amended charge shall replace and the new charge read to the accused person as the new charge. If the Court rejects the charge then the original charge remains. This is what obtains in criminal matters pertaining to amendment of charges generally."

Without doubt, it would have been preferable for the learned trial judge to have recorded the plea of each of the accused persons separately in the direct speech. However, failure to do this cannot be fatal to their plea so long as the charge was read over and over and explained to them, whether jointly or separately, and they both understood the same and each of them individually entered his plea thereto. It would not matter, whether the Court's record which described the event was written in direct or reported speech. See UDEH V. STATE (1999) 7 NWLR (Pt.609). Anthony Okoro v. The State (Supra). National Revenue Mobilization Allocation and Fiscal Commission V. Johnson (Supra).
The authorities do not say that it must be recorded that the charge was read and explained to the accused to the satisfaction of the Court (as claim by the appellant) before proceeding to record his plea thereto.
Without doubt it is good practice for the trial Court to record that "the charge was read and fully explained to the accused to the satisfaction of the Court" but I do not think the failure to record will render the trial a nullity. SeeEYISI VS STATE(2000) 15 NWLR (Pt.691)555

The object of arraignment in terms of Section 215 of the Criminal Procedure Law is to ensure that justice is done to the accused by ensuring that he understands the charge against him and so as to enable him to make his defence.
In CHIKAODI MADU V. THE STATE (2012) NCC at 553 this Court on the essential requirement of valid arraignment enumerated conditions for valid arraignment:
"(a). The accused must be placed before the Court unfettered unless the Court shall see cause otherwise to order
(b). The charge or information shall be read over and explained to the accused 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 thereto unless course, there exist any valid reason to do otherwise such as objection to want of service where the accused is entitled by law to service of a copy of the information and the Court is satisfied that he has in fact not been duly served therewith."
See also OLABODE V. STATE (2009) 4 NCC 199, OGUNYE v. STATE (1999) 5 NWLR (Pt.604) 518; MONSURU SOLOLA & ORS V. STATE, 22 NSCQR 254 at pp. 289-290.

There is therefore no doubt at all that the mode of instituting criminal proceedings before the High Court for the offence of armed robbery is by summary trial procedure, i.e by Prefering a charge.

Section 215 of the Criminal Procedure Law, Cap 31, Vol. 2, Laws of Ondo State of Nigeria 1978 provides as follows:- "The person to be tried upon any charge or information shall be placed before the Court unfettered unless the Court shall see cause otherwise to order, and 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 such person shall be called upon to plead instantly thereto, unless where the person is entitled to service of a copy of the information he objects to the want of such service and the Court finds that he has not been duly served therewith. There is nothing in Section 215 of the Criminal Procedure Law of Ondo State, which I have reproduced hereinabove that stipulates that the language in which a charge is read and/or explained to an accused person must be expressly recorded before a plea may be valid. It is good practice for the trial Court to specifically record that a charge was read over and explained to the accused to the satisfaction of the Court and that the accused understood the same before his plea thereto. In Okeke v State (2003) 15 NWLR (Pt. 842) 25 at 99 100 Paras H. B. this Court per Iguh JSC while considering Section 333 of the CPL of Anambra State, 1986, which is similar to Section 215 of Criminal Procedure Law of Ondo State, had this to say:- Where, however, from all the circumstances of the case and the nature of the charge it can reasonably be said that the information was read and explained to the Appellant in the language he understood and that he infact understood the same before making his plea, the mere fact that the trial Court did not record the particular language understood by the Appellant in which charge was read over to him should not be fatal to the proceedings. What the law to all intents and purposes enjoins a trial Court to do is to satisfy itself that the accused on the charge being read over and explained to...

The emphasis is not on whether or not there were defects, errors or omissions in the charge, but on whether those defects, errors or omissions could and in fact misled the defence, a defect which does not prejudice the defence is no ground for quashing a charge. See Mgbemene v. I. G. of Police (1963) 1 All N. L. R. 321, Omisade & Ors. V. R. (1964) 1 All NLR 233 R v. Ijoma & Ors. (1962) All N.L.R. 402.

The law is grounded on the fact that once a person is accused of a criminal offence, he must be charged to Court. The most important thing about the charge in any criminal case is that it must tell the person accused enough, so that he may know the case alleged against him and prepare his defence.

The parameters which a trial Judge should use in exercising his discretion to grant consent to prefer a charge against an accused therefore is to assess the information to see if an offence has been disclosed linking the accused and the deposition supports the indictment. It is with this backdrop that the application to prefer the charge against the appellant should be examined.

In the Ikomi's case supra it was held that once a prima facie case of the commission of the offence has been disclosed on the information in respect to which the persons so named could be linked, consent of the Judge to prefer the charges should be granted. Coker JSC expressed his difficulty in differentiating between suspecting a person" of having committed an offence and "a prima facie evidence" against him when he said at page 376 – "I have had some serious doubts as to the true dividing line between the concept of "suspecting a person for committing an offence on the one hand and "prima facie evidence against that person for the offence. A person might be suspected for committing an offence even though there is no evidence – direct or circumstantial- whatsoever against him. In such a case further investigation leading to possible evidence of the persons involvement becomes necessary before he could be charged with the offence. A prima facie case is made against a person where on the face of the available evidence an offence has been committed and there is evidence which possibly ground convicting the suspect. It is the suspicion which leads to investigation and discovery of evidence against the suspect. Suspicion alone is not sufficient to justify preferring a charge against a person, there must be evidence linking the suspect with the offence. There ought to be some evidence however remote which calls for some explanation from the suspect. At the stage of deciding whether to prefer charge the prosecutor is not obliged to decide, as the trial Judge should whether the available evidence is cogent enough to justify a conviction. But there must be evidence to meet all the essential elements of that offence. It is my view that if on a proper appraisal of the available evidence there is absence of any necessary ingredient of the offence, the Judge who is requested to give his consent to preferment of the...

The arguments advanced by counsel were rejected by the High Court and Court of Appeal.
On a further appeal to the Supreme Court, it was held that before granting leave or consent to file an information, a Judge must be satisfied that the depositions in support of an application for the leave or consent disclose an offence and that the trial will not amount to abuse of process. InAbacha v. State (2002) 11 NWLR (Pt. 779) 437, Belgore JSC (as he then was) explained what the trial Judge should take into consideration in exercising his discretion to grant leave to prefer a charge against an accused when he said at page 483 –
"There must be clear particulars and facts to justify the exercise of discretion. It is not the law neither is it the justice, to say once the application is made on information, and all necessary documents are attached, without more, the application to prefer charge must be granted ... There must be facts in the proofs of evidence to justify the grant of the application. Otherwise indictments will always be allowed to be tried where enough particulars are absent in the proofs of evidence. I must not be understood to hold that guilt of the accused must be established before approving the information to file the indictment; far from it. There must be prima facie case to be tried and the accused must be sufficiently linked to be in a situation where an explanation is necessary from him at the trial.

For it is elementary that the purpose of a charge is to give to the defence {i.e. the accused persons) due notice of the case they are to meet in Court."

The thrust of the appellant's stance is that even when there is a plea of guilty and the trial court is satisfied that the accused intended to admit the truth of all the essentials of the offence of which he had pleaded guilty, the court still has the power or judicial discretion whether to convict or not under the provisions of Section 218 of the Criminal Procedure Act (CPA).

Under Common law, ordinarily, the plea of the prisoner completes the arraignment. See; Uwafor Okegbu Vs The State (1979) 11 SC 1. In the instant case the plea of the accused had been taken in the presence of his counsel without any complaint on the procedure employed in the arraignment of the accused. Once an accused person pleads to a charge before the court without any objection, it presupposes that he understands the charge preferred against him. See; Okewu Vs. FRN (supra)

Counsel raised in this court that the plea was not properly recorded in the trial court. This court held that since the accused person understood the English Language, which is the language of the court, there was no need to record that the charge was read to the accused in a language that he understands.
In Okeke Vs The State (2003) 5 SCM 131 on the pleas of the accused, the trial court was said to have recorded it as follows:
"The Charge is read to the accused who pleads not guilty to the charge."
The court opined that two events took place in the above sentence.
The first one is that the charge was read to the appellant. The second one is that the appellant pleaded not guilty. The court continued as follows:
"Putting it another way, while the first event emanated from the court, the second event emanated from the appellant.
I do not think the recording of a charge can be defeated merely because the trial Judge did not record that the charge was read in a particular language which is understood by the accused person, particularly in a situation such as this, where the appellant was represented by counsel.
............taking a plea by an accused person presupposes that he understands the charge."

It is settled that a Court has power, under Section 163 of the Criminal Procedure Act (which is im pari materia to Section 163 of the Criminal Procedure Law, applicable to Ekiti State) to alter or add to any charge before judgment is given and every such alteration or addition must be read and explained to the accused. ​The procedure on alteration of a charge as prescribed by Section 164 of the Criminal Procedure Law of Ekiti State is set out under Subsections (1), (2) (3) and (4) thereof.
The provisions of the Section are as follows:- “(1) If a new charge is framed or alteration made to a charge under the provisions of Section 162 or Section 163 the Court shall forthwith call upon the accused to plead thereto and to state whether he is ready to be tried on such charge or altered charge. (2) If the accused declares that he is not ready the Court shall consider the reasons he may give and if proceeding immediately with the trial is not likely in the opinion of the Court to prejudice the accused in his defence or the prosecutor in his conduct of the case the Court may proceed with the trial as if the new or altered charge had been the original charge. (3) If the new or altered charge is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor the Court may either direct a new trial or adjourn the trial for such period as the Court may consider necessary. (4) Where a charge is so amended, a note of the order for amendment shall be endorsed on the charge, and the charge shall be treated for the purpose of all proceedings in connection therewith as having been filed in the amended form.” Compliance by the Court strictly with the provisions of Section 164 of the Criminal Procedure Law, quoted above, is essential.
Therefore, failure to request the accused to plead to the amended charge will result in the whole proceedings being declared null and void. See: AMAKO v. STATE (1995) LPELR 451 SC. ABDU ABOKI, J.S.C

When a charge is altered, amended or substituted, and the fresh charge is read to the Defendant in the language he understands, and the plea of the defendant is taken, the Court would ask the Defendant whether he intends to recall any prior witnesses who had given evidence. The Defendant is also allowed to call additional evidence where he so wishes depending on the stage of the prosecution or defence. The trial Court can proceed with the trial after these steps have been taken. See. Ogudo v The State (2011) LPELR 860 SC. FRN v. Adewunmi (2007) LPELR-1273(SC) Nigerian Air Force v.
James (2003) FWLR pt.143 pg. 257, Bude v. The State (2016) LPELR-40435 (SC). This Court in FRN v. Adewunmi was clear regarding the interpretation to be given to the procedure set out in S.164 (4) of the Criminal Procedure Act (same as S. 164 (4) of the Criminal Procedure Law of Ekiti State. Helen Moronkeji Ogunwumiju, J.S.C.

Therefore, for the conviction of the lesser offence to be valid, the accused must have sufficient notice of the lesser offence as in Section 218 CPC. In the absence of sufficient notice of any lesser offence or if the lesser offence was not a constituent element of the larger offence, a conviction on the lesser offence just because the substituted offence conveys lesser punishment, shall not be sustained. See the case of ONUKWUBE V STATE 2021 NWLR PT.1767 pg 558 at 577/578.
However, for Section 218 (2) to be properly invoked as done in this appeal, the following must be observed, namely; (i) The indictment in respect of which the accused is subsequently found guilty of; i.e the lesser offence must; a. Contain words to include both offence such that the evidence led and facts found, though insufficient for conviction of grave or aggravated offence. b. Must support the conviction of lesser offence.
It is trite to note here that the law does not insist nor is it necessary to charge the accused formally with the lesser offence with which he is convicted in that the great/aggravated offence include by necessary implication the lesser offence with which he was charged and convicted.
I rely on the case of Amadi v State (2019) NWLR (pt.1677) 366 at 378. ​A lesser offence has been described as a combination of some of the several particulars making up the offence with which the accused was charged with, as such the particulars constituting the lesser offence are carved out of the offence charged. The lesser offence with which the accused is convicted arises out of the facts and evidence led in support of the aggravated charge.
This therefore has been established over the years that when an accused had notice of the aggravated charge, he is deemed also to have notice of the lesser charge for which he could be convicted, though he was not formally charged with same. I refer to the case of: (i) RABIU V STATE 2010 10 NWLR PT.1201 at 148/149; (ii) NWACHUKWU V STATE 862 NWLR PT 25 pg.765 at 778/782. MARY UKAEGO PETER-ODILI, J.S.C.

It is a known position of the law that where a charge of conspiracy is based on the same facts as the substantive charge, the authorities require that the Court deals with the substantive charge and then sees if the charge of conspiracy is desirable and could be sustained. See AMACHREE VS NIGERIAN ARMY (2003) 3 NWLR (PT.807) 256 at 274 applying R VS. DAWSON (1960) 1 AER 558 and NJOVENS VS. STATE (1973) 5 SC 17 at 68. MARY UKAEGO PETER-ODILI, J.S.C. It is pertinent to note that there are concurrent findings of fact by the two lower Courts.
What the Appellant is seeking by this appeal is for this Court to engage in a third evaluation of the facts. This Court is always very wary of interfering with concurrent findings of fact unless they are shown to be perverse. The Appellant therefore has an uphill task to satisfy the Court that there are exceptional circumstances to warrant the setting aside of the concurrent findings. See: Atto Maba Vs The State (2020) LPELR-52017 (SC) @ 31-32 D-C; Olayode Vs The State (2020) LPELR-62519(SC) @ 18 A-B . KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.
TO DISCHARGE THE BURDEN OF PROOF THE GUILT OF THE ACCUSED MUST BE ESTABLISHED BEYOND REASONABLE DOUBT In criminal prosecution, the guilt of the accused must be established beyond reasonable doubt. In order to discharge the burden of proof, every ingredient of the offence charged must be proved. Failure to prove an essential element of a crime is fatal. It means that the burden of proof beyond reasonable doubt has not been discharged and the accused would be entitled to an acquittal.
See:Nwaturuocha Vs The State (2011) LPELR-8119 (SC) @ 15-16 F-C; Mohammed Ibrahim Vs The State (2015) 11 NWLR (Pt. 1469) 164 @ 191 G-H & 197 C-D; Oladele Vs Nigerian Army (2004) 6 NWLR (Pt. 868) 166; FRN Vs Umeh & Anor (2019) LPELR-46801 (SC) @ 18 C-D. KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

An information is liable to be quashed where the charge is defective or where it fails to disclose a prima facie case against the accused person. See: Abacha v. The State (supra): Okoro vs The State (1988) 5 NWLR (Pt. 94) 255.
In the instant case, the appellant has not alleged that the proofs of evidence filed do not disclose a prima facie case against him. His complaint is that there are other exculpatory statements made to the police by material witnesses, which he requires to enable him properly prepare for his defence, that have been deliberately omitted despite repeated demands. By Section 146 (c) of the ACJL, the prosecution shall include the names, addresses and statements of any material witnesses even though it does intend to call them.
A material witness is one whose evidence is significant, credible and may aid in the determination of the case one way or another. -PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

To succeed against an accused person in a charge of unlawful possession of firearms, the prosecution is duty bound to prove the following essential elements beyond reasonable doubt: 1. That the accused person was found in possession of firearm; 2. That the firearm is within the meaning of the Act; and
3. That the accused person has no licence to possess the firearm. See BILLE V. STATE (2016) LPELR-40832 (SC); OKASHETU V. STATE (2016) LPELR-40611 (SC).
The law punishes unlawful possession simpliciter. In other words, as long as the accused person is found in possession of a firearm, it is immaterial whether he intends to use it or whether it belongs to someone else. In the case at hand, assuming the Appellant was truly unaware of the contents of the black nylon in which the gun was found, the lack of knowledge would not have availed him. The offence is a strict liability offence.
As long as the accused person is found in possession of a firearm and the three aforementioned ingredients are present, he is guilty for the offence of unlawful possession of firearms. See MOHAMMED V. STATE (2019) 11 NWLR (PT. 1682) 41; STATE V. OLADOTUN (2011) 10 NWLR (PT. 1256) 542. The Appellant herein having been found in possession of a firearm within the meaning of the Act and without a licence permitting him to possess the firearm, the trial Court was right to have found him guilty as charged and the lower Court rightly affirmed his conviction and sentence . -PER ADAMU JAURO, J.S.C.

Where a person is charged with a substantive offence and conspiracy charge, the practice is to first consider the main offence, for in most cases, the failure of the main offence also sounds the death knell of the conspiracy charge.
The substantive offence in this case is culpable homicide punishable with death. I have earlier reproduced it in this judgment. It charges appellant and one Muhammad Abdullahi with causing the death of the deceased Abubakar Shuaibu by strangulating him in the neck and pushing him into the water to drown, an offence punishable under Section 221 of the Penal Code (Cap 105) Laws of Kano State of Nigeria 1999.
It is Respondent’s bounden duty as the prosecution and the one asserting to prove beyond reasonable this charge as laid to secure conviction: see is what is required of it by Section 135 of the Evidence Act 2011. The 1999 Constitution of this country in its Section 36 (5) further drives that point home by stating that every person who is charged with a criminal offence shall be presumed innocent until he is proved guilty.
What is more, Section 36(6) of the same 1999 Constitution states that “Every person who is charged with a criminal offence shall be entitled to: (a) be informed promptly in the language that he understands and in detail of the nature of the offence. (Emphasis mine). PER UGO, J.C.A.

Before delving into the merit of the appeal, it is necessary to address the submission that the prosecution failed to indicate the time the offence was committed in the charge. The appropriate time to complain or object to a charge is at the time it is being read and before the accused makes his plea and not later. It is too late to complain at this stage. The appellant has not shown that he was misled in any way or that the omission has occasioned a miscarriage of justice.
See Okewu Vs F.R.N. (2012) 9 NWLR (Pt. 1305) 327, Mumini vs F.R.N. (2018) 13 NWLR (Pt. 1637) 568, Okpa vs The State (2017) 15 NWLR (Pt. 1587) 1. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

​Now, what crystallizes from the majority of the decisions is that, where in the course of trial, a charge or information is amended, a fresh plea must be taken. Failure to obtain a new plea would render the trial null and void, Eronini v The Queen (1953) 14 WACA 366, 369; R v Fox (1947) 12 WACA 215; R v Ogunremi (1961) ANLR 467; A. G.
Western Region v Raimi Adisa (1966) NMLR 144, 146; Joseph Okosun v State [1979] 3-4 SC 36, 52; Okwechime v Police (1956) 1 FSC 73; Jones v Police (1960) 5 FSC 38, approvingly, cited per Irikife JSC (as he then was) in Nwafor Okegbu v State (supra); Kajubo v The State [1988] 11 NSCC 475. PER NWEZE, J.S.C.

For a Charge to be bad for duplicity, it must contain more than one offence in the same Count or a repetition of an offence already stated in another Count. Upon a cursory look at the Charge which has been reproduced above, can it be rightly said that the Charge is bad for duplicity? The response is in the negative and this is because it is abundantly clear that each of the three separate offences are contained in three separate counts. Documents and Statutes that are clear and unambiguous must be given their literal meaning.
Furthermore, in addition, the Appellant must show how the duplicity of the Charge misled him or caused him to suffer a miscarriage of Justice. The Courts have since moved away from the era of technical justice to an era of substantive justice. Reason being that the Court recognizes that we are human and therefore fallible and susceptible to slips and minor errors.
Where such errors do not in any way infringe on the fundamental rights of the Accused Person as enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), this Court will not interfere with the decision of the trial Court. I find the dictum of His Lordship, KALGO, J.S.C. in the case of ONAKOYA V. FRN (2002) LPELR-2670 (SC) very instructive on this issue. The appeal was against the decision of the Court of Appeal, Lagos Division which upheld the decision of the Failed Banks Tribunal, Lagos Zone V.
The Accused at the Failed Banks Tribunal, Lagos Zone V, pleaded not guilty to charge of committing a felony by approving and granting credit facility of 14m to one Alhaji Ibrahim, a customer of the Maiduguri Branch of the Savannah Bank of Nigeria PLC without lawful authority and in violation of the lending rules and regulations in force at the time in Savannah Bank particularly Memorandum 119. The Conduct is also an Offence contrary to Section 19(1)(a) (b) & (c) of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree No.18 of 1994 as amended.
In dismissing the appeal, the Apex Court while affirming the decision of this Court acknowledged that there was procedural irregularity but it did not lead to miscarriage of justice. The Apex Court held thus; “Duplicity is a matter of procedure or form and not evidence. See R. v. Greenfield (1973.) 57 Cr. App, R. 849. It is covered by Section 156 of the Criminal Procedure Act which provides in part: “For every distinct offence with which any person is accused there shall be a separate charge …” It is therefore a matter of procedure and not law. This Court in the case of Nwosu v.
Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt.135) 688 at 717 had this to say:- “As we have stated several times, the days when parties pick their way in this Court through naked technical rules of procedure, the breach of which does not occasion a miscarriage of justice are fast sinking into the limbo of forgotten things. The Court now takes the view that not every slip is fatal to the cause of justice. Judges are not omniscient robots, which never deviate from a programmed course. They sometimes slip.
But only those slips that have been shown to have affected the decision appealed against will amount to a substantial misdirection which will result in the appeal being allowed. See on this Onajobi v. Olanipekun (1985) 11 SC (Pt. 11) 156 at 163; also Jude Ezeoke & Ors. v. Moses Nwagbo & Anor (1988) 1 NWLR (Pt.72) 616 at 626. ” PER DONGBAN-MENSEM, J.C.A.

The law is that an accused person cannot be convicted for an offence with which he was not charged no matter how well the proceedings were conducted. The situation is different from where an accused person is charged with one offence but, the evidence adduced reveals that he committed a different offence for which he might or ought to have been charged, he could be convicted of the offence which is shown to have been committed by the evidence adduced even though not charged with the particular offence. See OKABICHI & ORS VS. STATE (1975) LPELR – 2406 (SC) Pp. 20 – 22, PARAS.
C – D and SIMON VS. THE STATE (2014) LPELR – 23994 (CA), USMAN VS. STATE (2015) LPELR – 40855 (CA) P.35, PARAS. B – D and UDOH VS. STATE (1993) 5 NWLR (PT. 295) 556, ODEH VS. FRN (2008) 13 NWLR (PT.1103) 1. The Appellant’s right to fair hearing requires that he be given the opportunity to prepare his defence and be heard on the particular charge. See ADESANYA VS. F.R.N. (2012) LPELR – 7926 (CA) and OKONOFUA & ANOR. VS. STATE (1981) 6 -7, S.C. 1. The situation is also different when an accused person is convicted for a lesser offence from that with which he is charged, pleaded to and tried.
See SEGUN VS. STATE (2018) LPELR – 44693 (SC) PP. 8 17, PARAS. A – C and ANDREW OGBOKA VS. THE STATE (2021) LPELR – 55338 (SC) P. 45, PARAS. D – F. Section 36(6)(a) of the Constitution (as amended) made provision that every person charged with a criminal offence is entitled to know the nature of the offence and should be informed promptly of the offence in the language that he understands. In NGGILARI VS. STATE & ORS (2017) LPELR – 42985 (CA) P. 68, PARAS.
A – B, his Lordship, Omoleye, JCA on whether an accused can be convicted for an offence other than that charged held thus: “The law is trite that a person cannot be convicted for an offence with which he was not charged or in a capacity in which he was not charged.” See FELIX VS. C.O.P. (2017) LPELR – 43313 (CA) P. 30, PARAS. C –E, MUHAMMED VS. STATE (2020) LPELR – 50770 (CA) PP. 7 – 13, PARAS. F – A and CHIWOBI VS. F.R.N. (2019) LPELR – 47239 (CA) PP. 36 – 38, PARAS. A – D. PER UWA, J.C.A.