THE FATALITY OR OTHERWISE OF A DEFECTIVE CHARGE: AN EXAMINATION OF CHARGE NO: FHC/ABJ/CR/99/2026 BETWEEN FEDERAL REPUBLIC OF NIGERIA V. MALLAM NASIR EL RUFAI.

By Deji Adeyanju, Esq.

The recent circulation of Charge No: FHC/ABJ/CR/99/2026 between Federal Republic of Nigeria v. Mallam Nasir El-Rufai has triggered arguments that the charge is defective and therefore unsustainable. The question, however, is not whether the charge is defective but whether any defect, if present, is fatal. Criminal jurisprudence in Nigeria has established a distinction between the fundamental defects in a charge sheet that can vitiate the arraignment, trial and/or conviction of an accused and the minor irregularities that cannot.

This essay therefore examines the alleged defects in the charge through the lens of established legal principles, with a view to determining whether the objections raised are fatal or otherwise. To answer that, one must first return to the basic principles of drafting charges.

The Nature and Purpose of a Charge

A charge is an instrument of notice. It is a document containing the statement and particulars of the offence(s) with which a person is accused and tried before a court of law. Section 36(6)(a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), provides that every person charged with a criminal offence shall be informed promptly, in the language he understands, and in detail, of the nature of the offence. The Supreme Court, in Timothy v FRN and Odeh v FRN, made it clear that the main purpose of a charge is to give the accused notice of the case against him.

When Is a Charge Defective?

A charge is defective when it fails to comply with the established rules governing its drafting. These include:
a. The rule against ambiguity
b. The rule against duplicity
c. The rule against misjoinder of offences
d. The rule against misjoinder of offenders

A charge is defective only where it fails to disclose an offence known to law. It is trite that errors or omissions in a charge are not material unless they mislead the accused or occasion a miscarriage of justice. This was established in the case of Okeke v. Commissioner of Police. That is to say, a defective charge does not automatically render proceedings void. The court must examine whether the defect is fundamental or merely an irregularity. Where the defect does not occasion miscarriage of justice, trial may proceed or any conviction thereof, will stand. Ogbomor v. The State.

Does Charge No: FHC/ABJ/CR/99/2026 Violate the Rules of Drafting?

a. The Rule Against Ambiguity: Each count must clearly disclose an offence known to law and contain sufficient particulars to inform the accused of what he must defend. The charge in question: identifies the accused, states the date (13 February 2026), states the place (Abuja), states the act complained of, and cites the statutory provisions allegedly breached. Nothing on the face of the counts suggests uncertainty as to the allegations. The accused is not left guessing. Therefore, the rule against ambiguity does not appear to be breached.

b. Rule Against Duplicity: Each count must charge one offence only. The charge separates unlawful interception, failure to report, and related conduct into distinct counts. The offences are not lumped together. There is therefore no duplicity.

c. Misjoinder of Offences: Where offences arise from the same transaction; proximate in time and place, continuous in action, and united by community of purpose, they may properly appear on one charge sheet in separate counts. The alleged offences stem from a single televised interview. They are connected in time, place, and narrative continuity.

d. Misjoinder of Offenders: The inclusion of “others still at large” is standard prosecutorial drafting and falls within recognized exceptions where common purpose is alleged. It is neither novel nor defective.

Franking and Prosecutorial Authority

There are criticisms on whether the Department of State Services possesses prosecutorial authority. Under Section 104-106 ACJA, 2015, prosecutorial power resides in the Attorney-General (Federal or State, as the case may be) under Sections 174 and 211 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), any other designee of the Minister of Justice, who may or may not be a public officer, or private legal practitioners/PERSONS through delegated authority (fiat).

The presence of counsel from a security agency does not automatically render proceedings void. The real inquiry is whether the prosecution is conducted with proper constitutional authority (if fiat was obtained). Importantly, even if authority were improperly invoked, such objection must demonstrate that the defect occasioned miscarriage of justice. Without that, it may not be fatal.

Extrajudicial Statements and Self-Incrimination

It has also been argued that the charge is predicated upon a statement allegedly made during a television interview, and that because the statement was not made under caution and therefore cannot qualify as an extrajudicial confession.

Under Section 28 of the Evidence Act 2011, a confession is defined as an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. This definition implies that a confession may be made “at any time.” The statute does not confine confessions to police stations, custodial environments, or formal interrogations. The law recognises that an accused person may confess in a variety of settings, provided the statement suggests the inference of guilt.

The requirements under Sections 15(4) and 17(2) of the Administration of Criminal Justice Act, 2015 are safeguards applicable to statements obtained during custodial interrogation. They are not conditions precedent to the legal existence of a confession under the Evidence Act.

The constitutional right against self-incrimination protects against compulsion, not against the legal consequences of voluntary speech. Section 36(11) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) shields a person from being compelled to testify against himself. It does not insulate voluntary speech from evidential consequences. In any case, these arguments may be explored at trial, but they do not render the charge defective.

Conclusion

The law does not consider a charge to be void because it is inelegant. A charge is only void where the accused was misled, or where there was a miscarriage of justice. A defect is fundamental only where it strikes at the root of jurisdiction or renders the charge unintelligible. In the present case: the offences are known to law, the statutory provisions are cited, the facts alleged are specific and the accused is sufficiently informed. Even assuming minor drafting imperfections, they would fall into the category of irregularities amendable before the defendant takes his plea (before trial) or before judgment. Our courts have consistently held that criminal justice cannot be defeated by fanciful technicalities. If every arguable technical objection were fatal, criminal trials would collapse at inception. The law has evolved beyond such rigidity.