By Deji Adeyanju, Esq.
The circulation of Charge No: FHC/ABJ/CR/99/2026 in Federal Republic of Nigeria v. Mallam Nasir El-Rufai has sparked public debate over claims that the charge sheet is defective and therefore unsustainable.
However, the real legal question is not whether any defect exists, but whether such defect if established is fatal to the proceedings.
Under Nigerian criminal jurisprudence, a clear distinction exists between fundamental defects that can nullify a charge and minor irregularities that do not occasion a miscarriage of justice.
This analysis examines the objections raised against the charge through established legal principles to determine whether they are truly fatal.
The Nature and Purpose of a Criminal Charge
A charge is primarily a document of notice. It sets out the statement and particulars of the offence(s) for which an accused person is to stand trial.
Section 36(6)(a) of the Constitution guarantees that any person charged with a criminal offence must be informed promptly, in a language he understands, and in detail, of the nature of the offence.
The Supreme Court has consistently affirmed this principle in cases such as Timothy v FRN and Odeh v FRN, emphasizing that the primary purpose of a charge is to give the accused clear notice of the case against him.
When Is a Charge Considered Defective?
A charge may be defective if it violates established drafting rules, including:
Ambiguity
Duplicity (charging more than one offence in a single count)
Misjoinder of offences
Misjoinder of offenders
However, Nigerian courts have held that not every defect is fatal.
In Okeke v Commissioner of Police, the court made it clear that errors or omissions in a charge are only material if they mislead the accused or occasion a miscarriage of justice.
Similarly, in Ogbomor v The State, the Supreme Court held that a defective charge does not automatically render proceedings void unless the defect is fundamental.
The key test remains whether the accused was prejudiced in his defence.
Examination of the Alleged Defects
- Rule Against Ambiguity
Each count in a charge must disclose an offence known to law and provide sufficient particulars.
In the present charge, the accused is identified, the date (13 February 2026) is stated, the location (Abuja) is specified, the alleged acts are outlined, and the relevant statutory provisions are cited.
On its face, the charge does not appear vague or uncertain. The accused is not left guessing the allegations. - Rule Against Duplicity
Each count must allege only one offence.
Here, unlawful interception, failure to report, and related allegations are separated into distinct counts. They are not lumped together in a single count. Accordingly, duplicity does not appear to arise. - Misjoinder of Offences
Offences arising from the same transaction proximate in time, place, and purpose — may properly be included in one charge sheet under separate counts.
The allegations stem from a single televised interview and appear connected by continuity of narrative and circumstance. On this basis, misjoinder may not be sustained. - Misjoinder of Offenders
The inclusion of “others still at large” is a conventional prosecutorial formulation where common purpose is alleged. It is not, in itself, a ground for invalidating a charge.
Prosecutorial Authority and Franking
Questions have also been raised about whether the Department of State Services possesses prosecutorial authority.
Under Sections 174 and 211 of the Constitution, prosecutorial powers vest in the Attorney-General (Federal or State), who may exercise such powers directly or delegate them.
The mere presence of counsel from a security agency does not automatically invalidate proceedings. The critical issue is whether proper constitutional authority including any necessary fiat exists.
Even where irregularities in prosecutorial authority are alleged, courts require proof that such defect occasioned a miscarriage of justice before nullifying proceedings.
Television Statements and Self-Incrimination
Another contention is that the charge is predicated on statements allegedly made during a television interview, and that such statements were not made under caution.
Section 28 of the Evidence Act 2011 defines a confession as an admission made at any time by a person charged with a crime, suggesting the inference that he committed the offence.
The phrase “at any time” is significant. The law does not confine confessions to police stations or custodial interrogation settings.
Safeguards under Sections 15(4) and 17(2) of the Administration of Criminal Justice Act (ACJA) 2015 apply to custodial interrogations, not voluntary public statements.
Furthermore, Section 36(11) of the Constitution protects against compulsion — not the consequences of voluntary speech.
Whether such statements ultimately qualify as admissible confessions is a matter for trial. It does not, in itself, render the charge defective.
The law does not invalidate a charge merely because it is inelegantly drafted. A charge becomes void only where it misleads the accused or occasions a miscarriage of justice.
A defect is fatal only if it strikes at jurisdiction or renders the charge unintelligible.
In the present case, the offences cited are known to law, statutory provisions are referenced, and the factual allegations appear sufficiently particularised.
Even assuming minor drafting imperfections, such issues would typically constitute amendable irregularities rather than fundamental defects.
Nigerian criminal jurisprudence has long moved beyond allowing technical objections to defeat substantive justice at inception.
