Behind Bars: Understanding the Ramifications of Charging Defendants under the Criminal Code Law of Akwa Ibom State 2000 as against the 2022 Revised Law

Author: Abasiodiong Ubong Udoakpan
Human Rights Attorney, Gender-Based Violence Specialist, Public Servant

Introduction

This article stems from an incident I witnessed in court while I was present to oppose a bail application of a defendant accused of defiling a 17-year-old girl. During the proceedings, a question arose from the bench regarding the necessity of amending a charge to align with the provisions of newly enacted legislation. While a senior colleague attempted to offer guidance to the Court on this matter, respectfully, her response was not thorough. Consequently, recognising the importance of providing clarity and insight on such a crucial legal issue, I deemed it prudent to draft a legal opinion addressed to the Honorable Justice before whom I appeared.

I was also humbled to discover that the judge found value in the arguments I presented within the legal opinion. Below is an excerpt from that document.

The Issues

a. Whether the act of charging a defendant under a repealed law can result in a miscarriage of justice?
b. Whether it is possible for a defendant to be misled where the prosecution brings charges against him/her under a repealed law, specifically, The Criminal Code Law, Cap. 38, Vol.2, Laws of Akwa Ibom State, 2000, when the revised law is The Criminal Code Law, Cap. 39, Vol.2, Laws of Akwa Ibom State 2022?

Legal Analysis- Issue A

When a law is repealed, it means there is an abrogation or destruction of law by the subsequent legislative Act. This is to say a law is repealed when the legislature enacts a law that terminates the existences of the repealed law and often is replaced by another on the same subject matter. The new enactment takes the place of the former law, and thus, becomes the existing law. Simply put, a new law replaces a former law.

Therefore, what is then the position of the law where an accused person is convicted under a repealed law. The case of Boniface Adonike v. The State[1] sufficiently lays to rest this question. In this case, one of the two issues at the Appellate court was “whether an Appellate Court will set aside the conviction of an accused merely on the compliant that he was tried and convicted under a repealed law”. The facts of the case were:

The accused person, charged for the offence of defilement under S.218 of Criminal Code of the defunct Laws of Bendel State, 1976 (instead S.218 of the Criminal Code, Laws of Delta State, 2008), lured a five-year-old girl to have carnal knowledge of her after running for him, an errand. He was however found guilty of that charge and sentenced to six years imprisonment with six lashes. Dissatisfied with the judgement of the trial judge, he appealed to the Court of Appeal which was dismissed, necessitating a further appeal to the Supreme Court.

In the above case, the learned Justice Akpata, JSC who wrote the lead judgment held at page 172 of the law report cited above as follows:

… I will like to sum up thus: where an offence known to law is prescribed in a charge and the penalty for the offence is prescribed in a written existing law and the charge is erroneously brought under a wrong section of an existing law or under a law which has been repealed or has ceased to exist, and both the accused and his counsel are not misled (emphasis mine) and no objection is raised to the defective charge, a conviction for the offence disclosed in the charge will not be set aside on appeal if there has been no miscarriage of justice.’

Furthermore, section 36(12) of the Constitution of Nigeria 1999 states that:

Subject as otherwise provided by this Constitution a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law, and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of the law.

This is to mean that for an accused person to be convicted of an offence, such offence, must first be prescribed as one, in a written law. In the dicta of Oseji, J.C.A in the case of Nurudeen Adewale Arije v. Federal Republic of Nigeria[2] , he explains that:

A combined reading of the provisions of Section 36(8) and 36(12) of the Nigerian Constitution suggest that whereas – no person can be tried and convicted of an offence which did not exist at the time of his 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 essence of the above in relation to the instant case is therefore, that an accused person can only be charged with an offence created by a statute and that a court of law only has jurisdiction to punish for an offence provided for in a statute. Hence, if the facts on which an appellant was convicted are known to law, the fact that the accused was charged under a repealed or wrong law or section of the law will not lead to his acquittal.

Legal Analysis- ISSUE B

Section 216 of the Administration of Criminal Justice Law (ACJL) provides for the procedural framework for the modification of a charge. Notably, Subsection 3 vests the court with the discretionary authority to allow or direct the framing, amendment, or alteration of the original charge. It is imperative to emphasise that the court’s discretion under this section becomes crucial when the charge is deemed defective or erroneous. In cases where the court perceives an error, it holds the authority to order the amendment of the charge.

Furthermore, Section 220 of the ACJL stipulates that an error or omission in stating the particulars of an offense, as required, shall not be considered material at any stage of the case unless the defendant was genuinely misled by such error or omission.

The crux of the matter arising from the aforementioned provisions is whether charging a defendant under the Criminal Code Law, Cap. 38, Vol.2, Laws of Akwa Ibom State 2000, instead of the Criminal Code Law, Cap. 39, Vol.2, Laws of Akwa Ibom State 2022, is indeed an error of a nature that could mislead the defendant.

The Commencement Part of the Criminal Code Law, Cap. 39, Vol.2, Laws of Akwa Ibom State 2022, particularly Section 2(d) states:

The following rules shall unless the context otherwise indicates, apply with respect to the construction of orders, laws and other instruments –

d) where in any order, law or other instrument, public or private, reference is made to any of the provisions hereby repealed, it shall be taken that that reference is intended to the corresponding provisions or substituted provisions of the Code.

Consequently, it appears that irrespective of when an offence was committed, this section interprets any charge brought under the repealed law as though it was brought under the corresponding provision of the Criminal Code Law, Cap. 39, Vol.2, Laws of Akwa Ibom State 2022. Hence, a charge brought under the repealed law would be considered as brought under the revised law, given that this lapse is not substantive enough to mislead the defendant. However, in consideration of contemporaneity, the court, exercising its authority under Section 216(3) of the Administration of Criminal Justice Law (ACJL), may direct an amendment to the charge, especially when the offense occurred after the year 2022.

Conclusion

While the potential for a miscarriage of justice exists when charging a suspect under a repealed law, this outcome is not automatically evident unless the charge would genuinely mislead the defendant. Also, the Criminal Code Law, Cap. 39, Vol.2, Laws of Akwa Ibom State 2022 foresee a scenario where a defendant may be charged under a repealed law, particularly when the offense remains criminalised under the new legislation. However, ensuring charges align with current laws not only safeguards against unjust outcomes but also upholds the integrity of the legal system, fostering fairness and legal clarity in criminal proceedings.

[1] (2015) LLJR-SC

[2] (2014) AELR 5318 (CA)

About the Author:
Abasiodiong Udoakpan is a human rights attorney, gender-based violence specialist, and public servant. He holds the degree LLM in International Human Rights Law and is currently Senior State Counsel with the Sexual and Gender-Based Violence Response Department (SGBVRD), Ministry of Justice, Akwa Ibom State, Nigeria. He may be reached through abasudoakpan@outlook.com