In criminal jurisprudence, a charge is the foundation upon which the entire edifice of a criminal trial rests. It is the formal accusation that informs the defendant of the nature of the offence alleged against him and sets the parameters of adjudication. Where a charge fails to comply with statutory requirements, lacks essential particulars, is ambiguous, duplicitous, improperly joined, or does not disclose an offence known to law, it is described as defective.
The critical legal question, however, is not merely whether a charge is defective, but whether such defect is fatal to the proceedings. The settled position of Nigerian law is that not every defect in a charge renders it incurably bad. A defective charge can be amended at any time before judgment, provided the amendment does not occasion a miscarriage of justice.
The constitutional backdrop to this principle is found in Section 36(6)(a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), which guarantees that every person charged with a criminal offence shall be informed promptly, in the language that he understands and in detail, of the nature of the offence. The essence of this provision is to ensure fairness and prevent trial by ambush. The purpose of a charge is therefore to give the accused sufficient notice of the allegation against him so that he can prepare his defence. Once this constitutional safeguard is preserved, technical imperfections in drafting will not automatically vitiate proceedings.
The Supreme Court has consistently held that criminal trials should not be defeated by mere technicalities that do not occasion substantial injustice. In Ogbomor v. State (1985) 1 NWLR (Pt. 2) 223, the apex court emphasized that a defect in a charge is only fatal where it has misled the accused or occasioned a miscarriage of justice. Similarly, in Abacha v. State(2002) 11 NWLR (Pt. 779) 437, the Supreme Court reiterated that procedural irregularities in a charge will not nullify proceedings unless the accused demonstrates that he was prejudiced in the conduct of his defence.
The distinction between a fundamentally defective charge and a merely irregular charge is therefore crucial. A fundamentally defective charge is one that fails to disclose an offence known to law or is so vague that the accused cannot understand what he is required to defend. Such a defect may affect the jurisdiction of the court and render proceedings a nullity. On the other hand, errors such as wrong citation of statutory provisions, omission of certain particulars, duplicity, misjoinder or non-joinder are generally curable, provided they do not mislead the accused.
The statutory authority for amendment of charges is clearly provided under Section 216(1) of the Administration of Criminal Justice Act, 2015, which empowers the court to permit alteration or addition to a charge or the framing of a new charge at any time before judgment is pronounced. The breadth of this provision underscores the legislative intention that criminal justice should not collapse on account of curable drafting errors. Section 216(2) further protects the accused by mandating that any altered or new charge must be read and explained to the defendant, and his plea taken afresh. The trial thereafter proceeds as though the amended charge were the original one. In addition, Section 216(4) makes it clear that even where a defendant is committed for trial without a charge or with an imperfect or erroneous charge, the court retains the authority to frame a proper charge or alter the defective one in accordance with the Act.
This statutory position aligns with long-standing judicial reasoning. In Ezeze v. State (2004) 14 NWLR (Pt. 894) 491, the Supreme Court affirmed that amendment of a charge is permissible so long as it does not prejudice the accused. The court emphasized that the overriding consideration is whether the accused has been taken by surprise or deprived of the opportunity to adequately defend himself.
Furthermore, Section 220 of the Administration of Criminal Justice Act, 2015 provides that no error in stating the offence, omission of particulars, or any duplicity, misjoinder, or non-joinder shall be regarded at any stage of the case as material unless the defendant was in fact misled by such defect. This provision reflects a deliberate legislative policy shift away from undue technical formalism toward substantive justice. It echoes the Supreme Court’s pronouncement in Ibrahim v. State (2015) 11 NWLR (Pt. 1469) 164, where the court held that criminal proceedings are not to be set aside merely because of defects in form that have not occasioned a failure of justice.
Where an accused person argues that the charge does not disclose an offence known to law, the court must carefully examine the ingredients of the alleged offence and the particulars supplied. If indeed the charge is incompetent for failing to disclose any recognizable offence under existing law, the court cannot proceed, as jurisdiction is fundamental. However, where the defect is one of inadequate particulars or improper drafting, the court may permit amendment. In Adebayo v. State (2014) 12 NWLR (Pt. 1420) 559, the Supreme Court restated that the primary consideration is whether the accused understood the case against him and had a fair opportunity to respond.
It must therefore be stressed that Nigerian criminal procedure prioritizes fairness over technical ambush. The administration of justice is not designed to reward procedural traps. An accused person who relies exclusively on technical defects in a charge without demonstrating prejudice may find that the prosecution simply cures the defect through amendment before judgment. The law allows amendment even after the close of evidence and addresses, so long as judgment has not been delivered and the accused is afforded the opportunity to plead anew and, if necessary, recall witnesses.
The guiding principle remains the constitutional guarantee of fair hearing. Once the accused is informed in detail of the nature of the allegation, allowed to plead, given adequate time and facilities to prepare his defence, and not misled or prejudiced by any amendment, the trial remains valid. Only where the defect strikes at jurisdiction or fundamentally undermines fair hearing will it render proceedings void.
Conclusively, the position of Nigerian law is clear and firmly settled. A defective charge can be amended at any stage before judgment in Nigerian courts, provided such amendment does not occasion miscarriage of justice or prejudice the accused. The Constitution protects the right to be informed; the Administration of Criminal Justice Act empowers the court to cure defects; and the Supreme Court has consistently held that technical irregularities will not defeat substantive justice. Criminal adjudication is concerned with determining guilt or innocence according to law, not with elevating drafting imperfections above the search for truth.
– Onogwu Muhammed, Esq writes from Abuja.
