Professional Documents
Culture Documents
3
&4
Sources
of
Criminal
Procedure
Laws
(A) Primary
sources/principal
Laws
are:
1. Criminal
Procedure
Laws
(applicable
to
Southern
States
other
than
Lagos)
2. Criminal
Procedure
Code
Laws
(applicable
in
the
Northern
States)
3. Administration
of
Criminal
Justice
(Repeal
and
Re-‐enactment)
Law
of
Lagos
State
2011
4. Administration
of
Criminal
Justice
Act
2015
(Repealed
the
Criminal
Procedure
Act
and
the
Criminal
Procedure
Code
but
currently
only
applicable
to
the
Federal
High
Court,
the
National
Industrial
Court
and
Courts
in
Abuja
because
the
States
must
first
adopt
it
before
it
will
apply
nationwide).
(B) Secondary
sources
are:
1. Evidence
Act
2011
2. The
1999
Constitution
as
Amended
3. The
Police
Act
4. The
Armed
Forces
Act
5. Coroners’
Laws
of
the
States
6. Children
and
Young
Persons
Law
7. Magistrate
Court
Laws
Lacunas
in
the
CPL,
CPCLL
the
ACJL
and
the
ACJA
! Under
the
CPLs,
the
Courts
are
to
apply
similar
rules
as
the
English
High
Court
does:
s.
363
CPL
! Under
the
CPCLL,
the
application
of
the
English
High
Court
Procedure
is
prohibited.
Under
s.
35
of
the
High
Court
Law
of
Northern
Nigeria
1963:
High
CTs
in
the
North
can
look
to
any
other
law
made
for
that
purpose
or
pass
another
law
to
take
care
of
it;
and
if
no
such
law
exists,
then
they
must
do
what
will
amount
to
substantial
justice.
! Under
ACJL,
the
Court
may
in
its
discretion
apply
rules
of
English
High
Courts.
Under
s.
266
of
the
ACJL:
where
a
matter
arises
in
respect
of
which
no
adequate
provisions
are
made
in
the
rules,
the
Ct
shall
adopt
such
procedure
as
will
in
its
view
do
substantial
justice
btw
the
parties.
! The
ACJA
2015
is
silent
on
this
issue
so
it
is
assumed
that
there
will
not
be
recourse
to
the
English
High
Courts
going
forward.
Criminal
Jurisdiction
of
Courts
Jurisdiction
is
statutory,
as
it
must
be
contained
in
a
Law
or
Act.
It
is
divided
into
two
types:
(A) Courts
of
General
Criminal
Jurisdiction
which
are:
1. Area
Courts
2. Customary
Courts
3. Magistrate
Courts
4. High
Courts
of
the
States
and
the
FCT
Abuja
(B) Courts
of
Special
Criminal
Jurisdiction
are:
1. Federal
High
Court
2. National
Industrial
Court
3. Court
Martials
4. Juvenile
Courts
5. Coroner’s
Courts
COURTS
OF
CRIMINAL
JURISDICTION
1)
Courts
of
Special
Criminal
Jurisdiction
These
courts
are
set
up
to
try
particular
types
of
offences
or
particular
classes
of
offenders.
2)
Courts
of
General
Criminal
Jurisdiction
Courts
of
General
Criminal
Jurisdiction,
on
the
other
hand,
are
courts
that
have
jurisdiction
over
different
classes
of
offenders
and
in
respect
of
different
types
of
offences.
Courts
of
General
Criminal
Jurisdiction
are
further
subdivided
into
two:
i. Courts
of
Original
Criminal
jurisdiction,
and
ii. Courts
of
Appellate
Criminal
Jurisdiction.
i. Courts
of
Original
Criminal
Jurisdiction
These
are
courts
you
can
commence
criminal
proceedings
at
first
instance,
e.g.
Magistrate
Courts
and
High
Courts.
Below
are
the
Courts
of
original
criminal
jurisdiction.
SOUTHERN
NIGERIA
A. CUSTOMARY
COURTS
Customary
courts
are
established
in
all
the
States
of
Southern
Nigeria
in
accordance
with
the
Customary
Courts
Laws
of
the
various
States.
In
Lagos
State,
the
applicable
law
is
the
Customary
Courts
Law,
2004.
Customary
Courts
have
original
criminal
jurisdiction
in
respect
of
the
following
offences:
1. Cases
of
violation
of
the
Rules
and
Bye-‐laws
of
Local
Governments.
2. Laws
that
expressly
confers
jurisdiction
on
Customary
Courts.
3. Any
case
of
contempt
in
the
face
of
a
court.
In
Lagos
State,
upon
conviction,
a
Customary
Court
Grade
(A)
can
impose
a
maximum
fine
of
N200
and
one
year
imprisonment.
The
Customary
Court
Grade
B
can
impose
a
maximum
fine
of
N100
or
six
months
imprisonment.
The
authority
of
the
Customary
Court
to
try
criminal
matters
is
drawn
from
Section
36(12)
of
the
1999
Constitution
which
provides
as
follows:
“…
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
a
law.”
B. MAGISTRATE
COURTS
The
various
Magistrate
Courts
Laws
of
the
States
in
Southern
Nigeria
establish
different
grades
of
Magistrate
Courts.
JURISDICTION
TO
TRY
OFFENCES
In
Lagos,
there
are
no
longer
grades
of
Magistrate
courts.
The
jurisdiction
of
a
Magistrate
Court
in
the
South
to
try
an
offence
depends
on
whether
the
offence
is
an
indictable
offence
or
a
non-‐indictable
offence.
That
is
the
provision
of
Section
18
of
the
Magistrate
Court
Law
(MCL)
Section
2
of
the
MCL
defines
indictable
and
non-‐indictable
offences.
It
states
that
an
indictable
offence
is
any
offence
which
may
be
punished
by:
1. A
term
of
imprisonment
exceeding
two
years
or
2. A
fine
exceeding
N500.
Any
fine
that
does
not
fall
into
this
category
is
a
non-‐indictable
office.
All
the
seven
grades
of
Magistrate
Courts
can
try
any
non-‐indictable
offence.
For
indictable
offences,
Magistrate
Grade
II
to
Chief
Magistrate
Grade
I
can
try
indictable
offences.
Provided
that
no
grade
of
Magistrate
can
try
capital
offence,
that
is,
offence
punishable
by
death.
For
offences
that
are
indictable,
consent
of
accused
and
prosecution
is
required
to
try
person
in
Magistrate
court.
The
sentences
contained
in
Section
18
of
the
MCL
are
the
maximum
that
the
Magistrate
Courts
in
Lagos
State
can
impose.
Therefore,
despite
the
provision
of
Section
380
of
the
Criminal
Procedure
Laws,
which
allow
an
upper
limit
of
four
years
where
the
sentences
are
consecutive,
a
Magistrate
Court
in
Lagos
cannot
exceed
the
limits
created
by
Section
18
of
the
MCL.
That
is
because
while
Section
380
of
the
CPL
is
a
general
provision,
Section
18
of
the
MCL
is
a
specific
provision.
Where
the
aggregate
or
the
sum
total
of
the
consecutive
sentences
imposed
by
a
Magistrate
Court
exceeds
its
jurisdiction
to
punish
under
Section
18
of
the
MCL
the
sentences
shall
be
reduced
on
appeal
to
the
Magistrate’s
limit
under
Section
18
of
the
MCL.
See
the
case
of
Emone
v.
The
Police
(1956):
in
this
case,
a
Magistrate
Court
Grade
II,
which
previously
had
jurisdiction
to
impose
a
maximum
sentence
of
one
year,
convicted
the
accused
person
on
three
counts
of
offences.
The
court
passed
consecutive
sentences,
which
added
up
to
two
years.
On
appeal,
the
sentence
was
reduced
to
one
year.
The
same
decision
was
arrived
at
in
Quartey
V.
IGP
(1957).
Similarly,
if
the
Magistrate
Court
exceeds
its
limit
to
impose
a
fine,
on
appeal,
the
fines
shall
be
reduced
to
the
limit
of
the
Magistrate
Court’s
jurisdiction
to
impose
a
fine
under
Section
18
of
the
MCL.
Note
that
the
State
Governor
may,
by
notice
published
in
the
Official
Gazette,
increase
the
jurisdiction
of
Magistrate
Courts.
In
Lagos
State,
there
is
a
significant
distinction
between
the
jurisdiction
of
the
Magistrate
Court
to
try
offences
and
their
jurisdiction
to
impose
penalty.
The
jurisdiction
to
try
an
offence
is
determined
by
whether
the
offence
is
indictable
or
non-‐indictable.
Section
18
of
the
MCL
provides
that
all
grades
of
Magistrates
in
Lagos
can
try
every
non-‐indictable
offence.
However,
with
respect
to
indictable
offences,
all
Magistrates
except
Magistrate
Grade
III
have
jurisdiction
to
try.
Therefore,
once
an
offence
is
non-‐indictable,
no
matter
the
penalty
prescribed
for
the
offence
by
the
law
which
created
it,
a
Magistrate
in
Lagos
can
try
an
offender
for
the
offence.
However,
because
Section
18
states
limits
on
the
jurisdiction
of
each
grade
of
Magistrate
to
impose
penalties,
a
Magistrate
Court
that
tries
an
offence
for
which
it
cannot
impose
the
maximum
penalty
can
only
impose
the
penalty
prescribed
for
it
by
Section
18
of
the
MCL.
In
Maiyaki
&
Ors.
V.
The
Registrar,
Yaba
Magistrate
Court
(1990),
a
Magistrate
Court
Grade
I
tried
the
accused
person
for
attempted
murder,
which
carries
a
maximum
penalty
of
life
imprisonment.
Upon
conviction,
the
court
imposed
a
sentence
of
3
years.
The
Court
of
Appeal
upheld
the
sentence
but
noted
that
it
borders
on
judicial
rascality
for
a
Chief
Magistrate
to
have
assigned
an
offence
punishable
with
life
imprisonment
to
a
Magistrate
Court
Grade
I.
APPELLATE
JURISDICTION
OF
MAGISTRATE
COURT
By
virtue
of
Section
41
of
the
Customary
Courts
Law
(CCL),
the
Magistrate
Court
hears
all
criminal
appeal
from
Customary
Courts.
MAGISTRATE
COURTS
IN
OTHER
SOUTHERN
STATES
Magistrate
Courts
exist
in
other
Southern
States
of
Nigeria
with
similar
features
as
the
courts
in
Lagos
State.
In
Delta
State
for
instance,
the
Magistrate
Courts
have
jurisdiction
over:
1. Any
offence
for
which
the
Magistrate
Court
has
jurisdiction
to
impose
the
maximum
penalty.
2. All
other
offences
for
which
the
Magistrate
Court
cannot
impose
the
maximum
penalty
provided
that:
a. The
court
is
of
the
opinion
that
given
the
particular
circumstance
of
the
offence
and
the
antecedents
of
the
accused,
that
the
court
can
adequately
punish
the
accused
within
the
limit
of
the
court’s
jurisdiction
to
punish.
b. The
accused
person
consents
to
be
tried
by
the
Magistrate
Court
and
c. The
prosecutor,
if
a
Law
Officer,
consents
to
the
trial.
3. Any
offence,
which
is
declared
by
the
law,
which
created
it
to
be
triable
summarily.
The
jurisdiction
of
Magistrate
Courts
in
other
Southern
States
may
also
be
increased
by
the
Governor,
by
notice
published
in
the
Official
Gazette.
NORTHERN
NIGERIA
A. AREA
COURTS
Before
the
creation
of
the
Area
Courts
there
were
in
existence
what
was
then
known
as
Native
Courts.
The
Area
Court
Edict,
1967
created
Area
Courts
and
consequently
replaced
the
Native
Courts.
By
virtue
of
Section
3
of
the
Area
Court
Edict
1967,
Area
Courts
were
established
by
Warrant
under
the
hand
of
the
Chief
Judge
of
the
State.
Section
4
provides
that
Area
Courts
may
be
presided
over
by
a
judge
sitting
alone
or
by
a
judge
sitting
with
one
or
more
members.
Section
5
of
the
Area
Court
Edict
also
authorises
Area
Courts
to
sit
with
assessors
who
are
approved
by
the
Chief
Judge.
JURISDICTION
OVER
PERSONS
Section
15
of
the
Area
Court
Edict
provides
that
the
Court
shall
have
jurisdiction
over
–
1) Any
person
whose
parents
were
members
of
any
tribe
indigenous
to
some
parts
of
Africa
and
the
descendants
of
such
a
person.
2) Any
person
one
of
whose
parents
was
a
member
of
a
tribe
whose
tribe
is
indigenous
to
some
parts
of
Africa.
3) Any
person
who
consents
to
be
tried
by
an
Area
Court.
JURISDICTION
OVER
OFFENCES
By
virtue
of
Section
12(2)
of
the
Criminal
Procedure
Code
(CPCL),
Area
Courts
have
jurisdiction
over
offences
contained
in
Column
7
of
Appendix
A
to
the
CPCL.
Also,
Area
Courts
will
have
jurisdiction
to
try
offences
where
the
Governor
of
a
State
expressly
confers
jurisdiction
on
it.
JURISDICTION
OF
AREA
COURTS
COURTS
TERMS
OF
FINE
IMPRISONMENT
N
1.
Upper
Area
Court
Unlimited
Unlimited
2.
Area
Court
Grade
I
5
years
N1,000.00
3.
Area
Court
Grade
II
3
years
N
600.00
4.
Area
Court
Grade
III
9
months
N100.00
These
are
the
upper
limits
of
penalties
Area
Courts
can
impose.
PRACTICE
AND
PROCEDURE
AT
AREA
COURTS
Section
387
of
the
CPCL
provides
that
the
framing
of
a
formal
charge
is
not
necessary
at
Area
Courts.
Alabi
v
COP.
Section
6
of
the
Area
Court
Edict
provides
that
Area
Courts
are
not
bound
to
strictly
observe
the
Rules
of
Evidence
or
Practices
and
Procedure.
Once
the
proceeding
of
an
Area
Court
is
in
accord
with
substantial
justice,
its
decision
will
not
be
set
aside
on
appeal.
In
Akiga
v.
Tiv
Native
Authority
(1965),
the
accused
person
was
convicted
despite
the
admission
of
evidence
of
his
previous
conviction
during
the
trial.
The
Court
of
Appeal
held
that
though
inadmissible
evidence
was
admitted
contrary
to
the
Rules
of
Evidence,
there
was
no
miscarriage
of
justice.
However,
in
Jos
Native
Authority
v.
Allah
Na
Gani
(1968),
the
accused
was
convicted
of
raping
a
seven-‐year-‐old
girl.
There
was
no
evidence
of
penetration.
The
only
evidence
at
the
trial
was
that
the
accused
lay
on
the
girl.
The
evidence
was
not
corroborated
and
the
accused
was
convicted.
On
appeal,
the
court
held
that
the
admission
of
hearsay
and
a
conviction
based
on
evidence
which
required
corroboration
was
contrary
to
the
Rules
of
Evidence.
Consequently,
there
was
a
miscarriage
of
justice.
THE
RIGHT
OF
PARTIES
TO
COUNSEL
AT
AREA
COURTS
Section
390
of
the
CPCL
and
Section
28
of
the
Area
Court
Edict
both
prohibited
the
appearance
of
Legal
Practitioners
before
Area
Courts.
However,
these
provisions
have
been
held
to
be
contrary
to
the
express
provision
of
Section
36(6)(c)
of
the
1999
Constitution,
which
gives
an
accused
person
the
right
to
defend
himself
personally
or
by
a
Counsel
of
his
own
choice.
That
was
the
decision
of
the
court
in
Uzodinma
v.
COP
(1982).
The
accused
person
was
arraigned
before
an
Area
Court.
He
engaged
a
Legal
Practitioner
to
represent
him.
The
Area
Court
Judge
cited
Section
390
of
the
CPCL
and
ruled
that
the
Legal
Practitioner
had
no
right
of
audience
in
his
Court.
The
accused
person
was
subsequently
convicted
and
he
appealed.
The
court
held
that
Section
390
of
the
Criminal
Procedure
Code
(CPCL)
was
in
conflict
with
Section
36
(6)(c)
of
the
1979
Constitution.
His
conviction
was
set
aside.
APPEALS
Any
person
who
is
aggrieved
by
the
decision
of
an
Area
Court
Grades
I,
II
or
III
may
appeal
to
the
Upper
Area
Court.
A
person
aggrieved
by
the
decision
of
the
Upper
Area
Court
may
appeal
to
the
High
Court.
Those
who
have
a
right
of
appeal
are:
1. Persons
aggrieved
by
decisions
of
the
Upper
Area
Court.
2. Area
Court
Inspectors
who
can
appeal
suo
motu,
that
is,
who
can
appeal
on
their
own
volition
or
upon
the
report
of
an
aggrieved
person.
B. MAGISTRATE
COURTS
Section
8
of
the
Criminal
Procedure
Code
(CPCL)
creates
four
grades
of
Magistrate
Courts
in
Northern
Nigeria.
The
courts
and
their
jurisdiction
to
impose
penalties
are
as
follows:
JURISDICTION
TO
IMPOSE
PENALTIES
YEARS
OF
FINE
S/N
COURTS
GRADES
IMPRISONMENT
N
1.
CHIEF
MAGISTRATE
5
YEARS
N1,000.00
COURT
2.
MAGISTRATE
COURT
GRADE
I
3
YEARS
N600.00
3.
MAGISTRATE
COURT
GRADE
II
1½
YEARS
N400.00
4.
MAGISTRATE
COURT
GRADE
III
9
MONTHS
N200.00
Section
8
of
the
CPCL
has
been
amended
in
some
States
in
the
North
to
create
seven
grades
of
Magistrate
Court.
Kano
and
Plateau
States
are
notable
examples.
JURISDICTION
OVER
OFFENCES
The
jurisdiction
of
Magistrate
Courts
in
the
North
over
offences
are
as
follows:
For
offences
in
the
Penal
Code,
Column
6
of
Appendix
A
to
the
CPCL
contains
the
list
of
offences
that
may
be
tried
by
each
grade
of
Magistrate
Court
in
the
North.
However,
Magistrate
Courts
of
higher
grade
can
also
try
the
offences
listed
for
magistrate
courts
of
lower
grade.
For
non-‐Penal
Code
offences:
1. Magistrate
Courts
in
the
North
can
also
try
offences
where
the
law
provides
that
the
offences
can
be
tried
summarily
because
the
Magistrate
Court
is
a
court
of
summary
trial.
In
such
a
case,
the
Magistrate
Court
can
impose
the
penalty
prescribed
by
that
law
even
if
such
penalty
exceeds
the
Magistrate
Court’s
jurisdiction
to
punish
as
stated
in
Appendix
‘B’
to
the
CPCL.
2. Magistrate
Courts
can
also
try
offences
where
the
law,
which
created
the
offence
expressly
confers
jurisdiction
on
Magistrate
Courts.
3. Where
the
law
is
silent
on
jurisdiction
and
the
penalty
for
the
offence
is
not
more
than
the
jurisdiction
of
the
Magistrate
Courts,
a
Magistrate
Court
can
try
such
an
offence.
See
the
case
of
Odiai
V.
Commissioner
of
Police
(1962)
NRNLR
9
and
also
the
case
of
Aba
v.
COP
(1962)
NNLR
37.
Note
that
the
State
Governor
may,
by
order
in
writing
on
the
recommendation
of
the
Chief
Judge,
increase
the
jurisdiction
of
any
Magistrate
Court.
Also,
Magistrate
Courts
cannot
try
any
offence
that
is
punishable
with
the
death
penalty.
CONSECUTIVE
SENTENCES
If
a
Magistrate
Court
in
the
North
convicts
an
accused
of
more
than
one
offence,
he
must
sentence
the
accused
on
each
of
the
offences.
If
the
sentences
are
to
run
consecutively,
Section
24
of
the
CPCL
permits
the
Magistrate
Court
to
exceed
the
limits
of
his
jurisdiction
to
impose
penalty.
However,
the
Magistrate
cannot
exceed
his
limit
by
more
than
twice
of
his
power
to
impose
penalty.
In
other
words,
the
sum
total
of
his
consecutive
sentences
must
not
be
more
than
twice
his
limit.
REFERENCE
TO
HIGHER
COURTS
If
after
conviction,
a
Magistrate
Court
in
the
North
is
of
the
opinion
that
the
sentence
he
has
jurisdiction
to
impose
cannot
adequately
punish
the
convicted
person,
he
can
refer
the
case
to
a
higher
court
for
penalty
alone.
That
is
the
provision
of
Section
257
of
the
CPCL.
The
court
the
accused
is
referred
cannot
retry
the
case.
Its
duty
is
only
to
impose
a
penalty.
By
reference
to
higher
court
means
from
Magistrate
Grade
II
to
Grade
I,
to
Senior
Magistrate
etc.
STATE
HIGH
COURTS
The
jurisdiction
of
the
State
High
Courts
is
uniform
nationwide,
the
only
exception
being
reference
to
the
High
Courts
in
the
North
and
appeals
from
decisions
from
Area
Courts.
The
State
High
Courts
were
created
by
Section
270
of
the
1999
Constitution.
Section
272
of
the
same
Constitution
provides
that
the
jurisdiction
of
the
State
High
Courts
is
subject
to
the
jurisdiction
of
the
Federal
High
Courts
as
contained
in
Section
251(3)
of
the
1999
Constitution.
Section
251(1)
provides
that
the
Federal
High
Court
shall
have
and
exercise
jurisdiction
to
the
exclusion
of
any
other
courts
in
civil
causes
and
matters:
Any
matter
or
cause
arising
from
or
pertaining
to:
1. The
revenue
of
the
Government
of
the
Federation.
2. Taxation
of
persons
subject
to
Federal
taxation.
3. Customs
and
Excuse
matters.
4. Causes
and
matters
connected
with
or
pertaining
to
banking,
banks,
other
financial
institutions,
including
any
action
between
one
bank
and
another,
any
action
by
or
against
the
CBN
arising
from
banking,
foreign
exchange,
coinage,
legal
tender,
letters
of
credit
etc.
Provided
that
this
paragraph
shall
not
apply
to
any
dispute
between
an
individual
customer
and
his
bank
in
respect
of
transactions
between
them.
5. The
operation
of
the
Companies
and
Allied
Matters
Act
(CAMA).
6. Copyrights,
patents,
designs,
trademarks
and
allied
matters.
7. Admiralty
matters.
8. Diplomatic,
consular
and
trade
representation.
9. Citizenship.
10. Banking
and
insolvency
11. Aviation
and
safety
of
aircraft.
12. Arms,
ammunitions
and
explosives.
13. Drugs
and
poisons.
14. Mines
and
minerals.
15. Weights
and
Measures.
16. Administration
and
Management
of
the
Federal
Government
or
any
of
its
agencies.
17. The
operation
and
interpretation
of
the
Constitution
as
it
affects
the
Federal
Government
or
any
of
its
agencies.
18. The
validity
of
Executive
and
administrative
action
by
the
Federal
Government
or
any
of
its
agencies.
19. Such
other
matters
in
respect
of
which
the
National
Assembly
may
confer
jurisdiction
on
the
Federal
High
Court.
By
virtue
of
the
provisions
of
Section
251(3)
of
the
1999
Constitution,
any
criminal
cause
or
matter
that
arises
from
any
of
the
subjects
listed
above
falls
within
the
exclusive
criminal
jurisdiction
of
the
Federal
High
Court.
The
Rules
of
Practice
and
Procedure
(Adjectival
Law)
which
regulates
proceedings
at
the
Federal
High
Court
nationwide
are
the
Criminal
Procedure
Act,
Laws
of
the
Federation
of
Nigeria
(LFN),
2004.
Territorial
Jurisdiction
of
the
Federal
High
Court
and
the
States
High
Courts
1. FHC:
There
is
only
one
FHC
in
Nigeria;
others
are
the
administrative
Judicial
Divisions.
It
has
a
National
jurisdiction.
See
ABIOLA
V.
FRN,
S.
19(1)
of
the
FHC
Act.
2. State
HC:
See
S.
4
of
the
Penal
Code
and
S.
12
(a)
of
the
Criminal
Code
for
the
territorial
jurisdiction
of
the
High
Court
as
follows:
i. Offences
completed
in
a
State
are
triable
by
the
State
alone
ii. If
an
offence
began
in
one
State
and
was
completed
in
State
B,
both
States
High
Courts
have
jurisdiction
over
the
offence.
See
HARUNA
V.
THE
STATE
and
NJOVENS
V.
THE
STATE
iii. S.
12
(a)
of
the
Criminal
Code
made
it
possible
for
a
State
that
arrested
an
offender
who
ran
away
from
the
State
of
committing
the
offence
to
try
him
provided
the
offence
is
punishable
in
the
State.
Sittings
of
the
Courts
The
Courts
sit
on
juridical
days,
that
is,
from
Mondays
to
Fridays
but
except
public
holidays
otherwise
the
proceedings
are
null
and
void.
Exception
where
it
will
be
valid
is
when
the
parties
consented
or
request
for
a
sitting
outside
the
juridical
days.
See
OSOSANMI
V.
COP
JUVENILE
COURTS
Juvenile
courts
are
established
pursuant
to
the
Children
and
Young
Persons
Laws
of
the
various
States
of
the
Federation.
Young
persons
are
persons
who
are
less
than
18
years
of
age
when
they
committed
the
alleged
offence.
In
terms
of
criminal
responsibility:
1. Children
below
the
age
of
7
years
are
not
criminally
responsible
for
their
act
or
omissions,
which
constitute
the
crime.
2. Children
between
the
ages
of
7
and
12
will
only
be
held
criminally
responsible
if
it
is
established
that
they
know
that
their
act
or
omissions
are
wrong
in
law.
3. Children
between
the
age
of
13
and
18
are
criminally
responsible
for
their
act
or
omissions.
" Children
fall
between
1
to
14
years.
" Young
persons
fall
between
14
to
18
years.
In
State
v.
Nwabueze
(1980):
the
accused
person
caused
the
death
of
the
deceased
in
the
course
of
a
fight.
The
accused
was
less
than
12
years
old.
He
was
charged
with
murder.
However,
evidence
adduced
at
the
trial
did
not
establish
that
the
accused
person
knew
that
his
act,
which
resulted
in
the
death
of
the
deceased,
was
wrong
in
law.
The
court
discharged
and
acquitted
the
accused
person.
Juvenile
courts
have
jurisdiction
over
all
cases
involving
children
or
young
persons
except
in
the
following
circumstances:
1) Section
8(2)
of
the
CYPL
provides
that
where
a
child
or
young
person
is
charged
with
an
offence,
which
is
punishable
by
the
death
penalty,
his
trial
shall
be
by
a
regular
court.
2) Section
6(2)
of
the
CYPL
also
provides
that
where
a
juvenile
is
jointly
charged
with
an
adult,
the
trial
shall
be
by
a
regular
court.
However
in
respect
of
offences
that
are
punishable
with
death
penalty,
a
juvenile
court
can
conduct
preliminary
inquiry
but
cannot
proceed
to
full
trial
if
a
prima
facie
case
is
established.
DETERMINATION
OF
AGE
Where
the
age
of
an
accused
person
is
essential
for
the
purpose
of
conviction
or
is
relevant
in
the
determination
of
the
nature
of
sentence
to
be
passed
on
the
accused
person,
a
trial
court
is
bound
to
conduct
an
inquiry
as
to
the
true
age
of
an
accused
person.
In
order
to
determine
the
age
of
an
accused
person,
the
court
may:
1) Accept
direct
evidence
of
the
age
of
an
accused
person
such
as
birth
certificate.
2) Accept
oral
evidence
as
to
the
age
of
the
accused
person
by
the
parents
or
relations.
3) Order
medical
examination
by
a
Medical
Practitioner
in
a
Government
medical
institution.
Medical
examination
is
usually
ordered
where
the
court
disbelieves
the
oral
evidence
of
parents
or
relations
or
where
there
is
conflicting
evidence
of
the
age
of
the
accused
person.
In
the
case
of
R.
v.
Oladimeji
(1964),
the
accused
person
was
charged
for
murder.
At
his
trial,
his
father
testified
that
he
was
less
than
17
years
old
when
he
committed
the
alleged
offence.
He
was
convicted.
On
appeal
against
the
conviction,
the
court
appointed
a
Medical
Commission
to
inquire
into
the
accused
person’s
age.
At
the
Commission,
the
parents
maintained
that
the
boy
was
16
years
when
he
allegedly
committed
the
offence.
However,
the
medical
doctor
who
examined
the
boy
18
months
after
the
offence
was
committed
put
his
age
at
25.
The
Supreme
Court
held
that
the
doctor’s
testimony
was
admissible
and
was
rightly
acted
upon
by
the
Commission.
Note
that
where
there
is
clear
evidence
before
the
court
as
to
the
age
of
the
accused
person,
the
need
to
determine
the
age
of
the
accused
person
no
longer
arises.
See
Guobadia
v.
The
State
(2004)
6
NWLR
(PT.
869)
at
page
360.
FEATURES
OF
A
JUVENILE
COURT
Section
6(5)
of
the
CYPL
(Lagos
State)
provides
that
Juvenile
Courts
are
not
open
to
members
of
the
public.
The
only
persons
allowed
in
Juvenile
Courts
are:
1) Parents
and
relations
of
juvenile,
Counsel,
Legal
Practitioners
and
accredited
members
of
the
Press.
2) Section
6(6)
of
the
CYPL
prohibits
the
publication
or
disclosure
of
the
identity
of
the
juvenile
at
the
trial
except
with
the
leave
of
the
court.
To
publish
the
identity
of
the
juvenile
is
an
offence
punishable
by
N100
fine.
3) At
Juvenile
Courts,
regular
court
terms
such
as
“sentenced”,
“guilty”,
“convicted”,
“accused”
et
cetera
are
not
used.
Use
offender
instaed
4) Section
12
of
the
CYPL
provides
that
a
juvenile
cannot
be
sentenced
to
a
term
of
imprisonment
once
he
can
be
suitably
dealt
with
by
any
other
punishment
or
committed
to
a
remand
home.
5) Even
where
a
juvenile
is
in
prison,
he
cannot
be
mixed
with
adult
prisoners.
This
is
in
order
to
protect
him
from
further
corruption.
6) Section
368(3)
of
the
CPL
and
Section
272
of
the
CPCL
both
provide
that
any
person
who
had
not
attained
the
age
of
17
years
at
the
time
the
offence
was
allegedly
committed
cannot
be
sentenced
to
death.
In
Modupe
v.
The
State
(1988),
the
Supreme
Court
held
that
if
the
evidence
before
the
court
establishes
that
a
juvenile
was
guilty
of
a
capital
offence,
it
would
be
wrong
for
any
court
not
only
to
sentence
him
to
death
but
also
to
even
pronounce
such
a
sentence.
Note,
however,
that
where
such
a
juvenile
is
convicted
of
a
capital
offence
instead
of
a
death
sentence,
a
sentence
of
life
imprisonment
would
be
imposed.
7) Any
juvenile
who
is
found
to
have
committed
a
capital
offence
shall
be
held
in
lawful
custody
pending
the
pleasure
of
the
Governor.
This
was
the
decision
of
the
Supreme
Court
in
GUOBADIA
V.
THE
STATE
(SUPRA).
COURTS
MARTIAL
The
Armed
Forces
Act
CAP
A20
LFN
1993
(as
amended)
consolidated
the
Nigerian
Army
Act,
the
Nigerian
Navy
Act
and
the
Nigerian
Air
Force
Act.
Section
129
of
the
Armed
Forces
Act,
1993
creates
two
types
of
courts
martial.
They
are:
1) The
General
Courts
Martial
and
2) The
Special
Courts
Martial.
1) THE
GENERAL
COURTS
MARTIAL
See
Section
129,
paragraph
A
of
the
Armed
Forces
Act
(AFA).
This
court
martial
shall
consist
of:
1. The
President.
2. Not
less
than
4
members.
3. A
waiting
member.
4. A
Liaison
Officer
and
5. A
Judge
Advocate.
2) THE
SPECIAL
COURTS
MARTIAL
See
Section
129;
paragraph
B
of
the
Armed
Forces
Act.
This
Court
shall
be
constituted
by
the
following
members:
1. The
President.
2. Not
less
than
2
members.
3. A
waiting
member.
4. A
Liaison
Officer,
and
5. A
Judge
Advocate.
A
Judge
Advocate
must
be
a
commissioned
officer
that
has
been
qualified
to
practice
Law
in
Nigeria
for
at
least
3
years.
If
there
is
no
such
person
available,
the
Director
of
Legal
Services
of
the
particular
service
of
the
Armed
Forces
shall,
upon
the
request
of
the
convening
officer,
nominate
a
judge
advocate
for
the
court
martial.
The
duty
of
the
Judge
Advocate
is
to
guide
and
advise
the
Court
Martial
on
the
Rules
of
Evidence
and
Practice
and
Procedure.
He
does
not
have
a
vote
in
the
decision
of
the
court
martial.
Again,
the
Rules
of
Practice
and
Procedure
that
is
applicable
to
Courts
Martial
are
the
CPL.
A
person
may
not
be
appointed
a
member
of
a
Court
Martial
unless
he
is
subject
to
Service
Law
and
has
been
an
officer
for
a
period
of
not
less
than
5
years.
A
waiting
member
is
a
spare
tyre.
He
is
a
member
who
is
there
waiting
in
case
a
regular
member
is
ill
or
unavoidably
absent.
The
President
of
a
Court
Martial
shall
not
be
under
the
rank
of
a
Major
or
a
similar
rank
in
any
of
the
other
services.
Where
it
is
not
possible
to
have
a
Major
as
a
President
of
a
Court
Martial,
a
Captain
or
the
corresponding
rank
in
any
of
the
services
may
be
appointed.
An
officer
of
any
of
the
services
cannot
be
tried
by
a
Court
Martial
whose
membership
includes
an
officer
of
a
rank
lower
than
his.
In
Okoro
v.
Nigerian
Army
Council
(2000),
a
Court
Martial
constituted
by
members
who
included
two
captains
tried
and
convicted
a
Major.
The
Court
of
Appeal
held
that
by
virtue
of
Section
133
of
the
Armed
Forces
Act,
an
officer
cannot
be
tried
by
a
Court
Martial
constituted
by
officers
of
a
lower
rank.
In
order
for
a
Court
Martial
to
come
to
a
decision
(judgment),
it
only
requires
the
attendance
and
votes
of
the
President
and
other
members.
Waiting
member,
Judge
Advocate
and
Liaison
officers
do
not
have
a
vote.
Therefore,
a
Court
Martial
can
come
to
a
valid
judgment
in
their
absence.
See
Obisi
v.
Chief
of
Naval
Staff
(2004).
WHO
MAY
CONVENE
A
COURT
MARTIAL
Section
131
of
the
Armed
Forces
Act
(AFA)
provides
that
only
an
appropriate
superior
authority
can
convene
a
Court
Martial.
For
the
General
Court
Martial,
any
of
the
following
are
appropriate
superior
authorities:
1. The
President.
2. Chief
of
Defence
Staff.
3. The
Service
Chiefs.
4. A
General
Officer
Commanding
or
a
corresponding
command.
5. A
Brigade
Commander
or
corresponding
Command.
For
the
Special
Courts
Martial,
appropriate
superior
authority
means
any
person
who
has
authority
to
convene
a
General
Courts
Martial
as
listed
above,
that
is:
1. The
President.
2. Chief
of
Defence
Staff.
3. The
Service
Chiefs.
4. A
General
Officer
Commanding
or
a
corresponding
command.
5. A
Brigade
Commander
or
corresponding
Command.
In
special
circumstances
the
senior
officer
of
a
detached
unit
may
be
authorised
by
the
appropriate
superior
authority
to
convene
a
Court
Martial.
See
Nigerian
Air
Force
v.
Obiosa
(2003)
4
NWLR
(PT.
810)
233.
DELEGATION
OF
THE
AUTHORITY
TO
CONVENE
A
COURT
MARTIAL
Contrary
to
the
earlier
Supreme
CT
decision
in
Nigerian
Air
Force
v.
Shekete
(2002),
the
Supreme
Court
in
Nigerian
Air
Force
v.
Obiosa
(SUPRA)
held
that
the
authority
to
convene
a
Court
Martial,
General
or
Special,
may
be
delegated
by
appropriate
superior
authority.
In
order
to
do
this,
the
authority
given
to
the
delegate
must
be
in
writing
and
must
be
signed
by
the
appropriate
superior
authority.
JURISDICTION
OVER
PERSONS
Section
130
of
the
Armed
Forces
Act
gives
the
Court
Martial
jurisdiction
over
persons
who
are
subject
to
Service
Law,
that
is,
Members
of
the
Army,
Navy
and
the
Air
Force.
It
does
not
include
officers
of
the
Police
Force,
NDLEA,
Customs
and
Immigration
and
NAFDAC.
Note,
however,
that
a
General
Court
Martial
cannot
impose
a
sentence
of
death
unless
it
consists
of
at
least
7
members.
A
Special
Court
Martial
has
the
same
powers
as
a
General
Court
Martial
but
where
it
is
constituted
by
only
two
members,
it
cannot
impose
a
sentence
of
death
or
a
sentence
of
imprisonment
which
exceeds
one
year.
JURISDICTION
OVER
OFFENCES
Sections
45
to
114
of
the
Armed
Forces
Act
contain
the
list
of
offences
which
can
be
tried
by
a
Court
Martial.
The
offences
triable
by
a
Court
Martial
are:
1. Aiding
the
enemy.
2. Cowardly
behaviour.
3. Mutiny.
4. Insubordination.
5. Absence
from
duty.
6. Malingering
and
drunkenness.
7. Navigation
and
flying
offences.
8. Sodomy.
9. Sexual
relationship
with
the
spouse
of
a
Service
personnel.
10. Rape
and
canal
knowledge.
11. Irregular
arrests
and
confinement.
12. Disgraceful
conduct.
13. Misconduct
in
action,
etc.
The
Civil
offences
triable
by
a
Court
Martial
are
the
regular
criminal
offences
in
the
civil
society
such
as
assault,
manslaughter,
robbery,
extortion
etc.
If
a
serving
officer
is
tried
by
a
Court
Martial
for
a
civil
offence,
the
officer
can
still
be
tried
for
the
same
offence
by
the
regular
courts.
However,
in
imposing
sentence,
the
regular
court
shall
take
into
consideration
the
sentence
already
passed
by
the
Court
Martial.
On
the
contrary,
if
a
regular
court
tries
a
person
who
is
subject
to
service
law
for
a
civil
offence,
the
Court
Martial
can
no
longer
try
the
officer
for
the
same
offence.
The
decision
or
verdict
of
a
Court
Martial
is
arrived
at
by
a
simple
majority
of
the
members
of
the
Court.
Note
that
the
Judge
Advocate,
the
waiting
member
and
the
liaison
officer
do
not
have
the
right
to
vote.
In
the
case
of
equality
of
votes,
that
is,
where
there
is
tie,
the
accused
persons
shall
be
acquitted.
Any
death
sentence
passed
by
a
Court
Martial
cannot
be
executed
except
with
the
approval
of
the
President
and
Commander-‐in-‐Chief
of
the
Armed
Forces.
Any
other
sentence
of
a
Court
Martial
are
subject
to
confirmation
by
the
appropriate
superior
authority
who
convened
the
Court
Martial.
APPEALS
Previously,
appeals
against
the
decision
of
a
Court
Martial
went
to
the
Armed
Forces
Appeal
Disciplinary
Committee
but
presently
any
person
who
is
aggrieved
by
the
decision
of
a
Court
Martial
can
appeal
to
the
Court
of
Appeal.
Nigeria
Air
Force
v
Shekete
(supra)
TIME
LIMIT
FOR
TRIAL
UNDER
THE
ARMED
FORCES
ACT
Section
169(2)
of
the
Armed
Forces
Act
provides
that
if
a
retired
officer
of
any
of
the
Armed
Forces
is
not
tried
within
3
months
after
his
retirement,
the
Court
Martial
can
no
longer
try
him:
Nigerian
Air
Force
v.
Obiosa.
That
means
the
offences
would
be
statute
barred.
However,
there
are
exceptions.
1. If
the
officer
committed
a
civil
offence
outside
Nigeria,
he
can,
with
the
consent
of
the
Attorney
General,
be
tried
for
the
offence
even
after
3
months
of
his
retirement.
2. With
respect
to
offence
of
mutiny
or
failure
to
suppress
mutiny
an
officer
can
be
tried
at
any
time
after
retirement.
3. A
retired
officer
can
be
tried
for
the
offence
of
secession,
as
it
has
no
time
limit.
OTHER
TRIBUNALS
Previously,
we
had
seen
tribunals
try
criminal
offences.
They
try
particular
class
or
persons
or
types
of
offences.
The
rationale
for
their
establishment
was
the
need
for
exigency
and
to
promote
dispensation
of
justice.
These
are:
1) Failed
Banks
Tribunal.
2) Currency
and
Miscellaneous
Offences
Tribunal
(CMOT),
etc.
All
these
tribunals
have
since
been
abolished
by
the
Tribunals
(Certain
Consequential)
Amendment
Act,
1999.
The
only
ones
left
in
existence
now
are
the
Robbery
and
Firearms
Tribunal,
Civil
Disturbances
Tribunal
and
Treason
and
Treasonable
Felony
Tribunal.
The
Rule
of
Practice
and
Procedure
applicable
to
all
Tribunals
is
the
CPL,
that
is,
Criminal
Procedure
Act.
THE
CORONERS
COURT
The
Coroners
Court
is
a
Court
of
Inquest.
It
is
not
a
trial
court.
Therefore,
it
is
not
a
court
of
law.
There
are
Coroners
Laws
of
the
various
States
of
the
Federation.
These
laws
authorise
a
Coroner
to
conduct
an
Inquest
into
the
cause
of
death
of
a
person
where
death
is
sudden
and
unnatural
or
where
death
occurs
in
a
public
place.
Public
place
includes:
(i) Police
custody.
(ii) A
prison.
(iii) A
lunatic
asylum
or
(iv) Anywhere
a
public
execution
takes
place.
Where
death
occurs
in
any
of
these
places
mentioned,
the
Coroners
Inquest
is
mandatory.
The
Coroner
is
usually
a
Magistrate
within
whose
jurisdiction
the
body
of
the
deceased
person
is
found.
However,
the
Attorney
General
may,
by
notice
published
in
the
State
Gazette,
appoint
any
fit
person
to
conduct
an
Inquest.
See
Sections
3
and
7
of
the
Coroners
Laws
of
Lagos
e.g.
inquest
into
cause
of
death
of
collapse
of
bio;domg
at
Synagogue
church
Section
25
of
the
Coroners
Laws
of
Lagos
State
states
that
the
purpose
of
an
Inquest
is
to
determine
the
identity
of
the
deceased
and
the
cause
of
death.
The
Coroner
may
conduct
an
Inquest
on
any
day
including
Sunday
or
public
holidays.
Note
also
that
where
the
Coroner
considers
it
expedient,
he
may
hold
an
Inquest
in
private
but
he
must
record
his
reasons
for
holding
it
in
private.
The
Coroner
Court
may
take
evidence
on
Oath
but
it
is
not
bound
by
the
Rules
of
Evidence
Act.
He
may
also
issue
summons
or
other
processes
as
are
contained
in
the
Evidence
Act.
Any
person
who
testifies
before
a
Coroner
Court
is
not
bound
to
answer
any
question
if
he
is
of
the
opinion
that
his
answer
may
incriminate
him.
The
Coroner
may
also
take
evidence
of
a
sick
person
from
his
sick
bed
or
he
may
direct
another
Magistrate
in
the
jurisdiction
where
the
person
is
sick
to
take
such
evidence
and
forward
it
to
him
under
Section
28
of
the
Coroners
Laws,
Lagos
State.
The
Coroner
shall
give
a
verdict
at
the
end
of
the
Inquest.
His
verdict
is
subject
to
review
by
the
High
Courts.
Once
a
court
is
informed
that
criminal
proceedings
have
been
or
is
about
to
be
instituted
against
any
person
in
respect
of
a
deceased
person,
the
Coroner
must
stop
the
Inquest
until
the
trial
is
concluded.
That
was
the
decision
of
the
Supreme
Court
in
Adepetu
v.
State
(1998).
THE
PURPOSE
OF
AN
INQUEST
The
purpose
of
an
Inquest
is
not
to
determine
guilt.
Therefore,
criminal
charges
may
not
necessarily
follow
an
Inquest.
However,
where
the
verdict
of
a
Coroner
necessitates,
the
Attorney
General
may
institute
criminal
proceedings.
Note
that
the
Coroners
Court
is
not
a
court
of
trial.
Therefore,
the
Attorney
General
cannot
enter
a
nolle
prosequi
before
a
Coroners
Court.
LIMITATION
OF
ACTION
The
general
rule
is
that
there
is
no
limitation
of
action
or
time
limit
within
which
to
institute
criminal
actions
against
offenders.
Exceptions
where
time
is
of
the
essence
otherwise
the
action
will
become
statute
bar
are
in
the
following:
1. Treason
and
treasonable
felony,
to
be
prosecuted
within
2
years
2. Sedition,
within
6
months.
See
S.
52
(1)
(c)
of
the
Criminal
Code
3. Custom
offences,
within
7
years.
See
S.
176
(3)
of
the
Customs
and
Excise
Management
Act.
4. Carnal
knowledge
of
a
girl
under
16,
within
2
months
5. Military
offences
to
be
tried
within
3
months
if
the
offender
is
out
of
service.
See
OLATUNJI
V.
STATE
NB:
S.
2
of
the
Public
Officers
Protection
Act
only
protects
public
officers
in
civil
trials
and
does
not
apply
to
criminal
trials.
See
YABUGBE
V.
COP
THE
INTERNATIONAL
CRIMINAL
COURT
(ICC)
1.3. JURISDICTION
OF
THE
INTERNATIONAL
CRIMINAL
COURT
Established
by
the
ROME
STATUTE/International
Criminal
Court
Statute
adopted
in
a
UN
diplomatic
conference
in
July
1999.
Nigeria
ratified
the
statute
on
the20th
April
2002
The
permanent
seat
of
the
ICC
is
at
the
HAGUE
in
Netherlands-‐ART
3(3)
JURISDICTION
OVER
OFFENCES
–ART.
5(1)
Hears
only
serious
violations
of
International
human
Rights
laws.
Examples
are:
a.
Genocide
(b)
Crimes
against
humanity
(c)
War
crimes
d.
Aggression:
This
cannot
be
invoked
until
2017
or
when
20
state
parties
have
signed.
NOTE-
ICC
cannot
execute
a
warrant
of
arrest
against
a
NON
STATE
PARTY
e.g.
USA,
China
ICC
crimes
do
not
apply
retroactively
it
has
jurisdiction
over
crimes
committed
ON
or
AFTER
1stjuly
2002.
ICC
crimes
are
not
subject
to
statute
of
limitations-‐Art
29
JURISDICTION
OVER
PERSONS
Applies
to
persons
committing
serious
crimes
of
international
concern-‐ART
1
Can
only
try
persons
not
states-‐Art
25.
NB-
the
doctrine
of
state
immunity
does
not
apply-‐Article
27
Provides
for
Individual
responsibility-‐Art
25
JURISDICTION
OVER
MINORS
Does
not
exercise
jurisdiction
over
minors.
The
ICC
exercises
jurisdiction
over
persons
OVER
18
years-‐Article
26
JURISDICTION
OF
ICC
IMPOSE
PUNISHMENT-
Art
77
-‐Cannot
impose
death
penalty
-‐Life
imprisonment
when
justified
-‐Maximum
of
30
years
imprisonment
-‐Additional
fine
-‐Order
of
forfeiture
without
prejudice
to
bonafide
purchasers
APPEALS
–Appeals
Chamber-
Art
39
RELATIONSHIP
BETWEEN
ICC
AND
NATIONAL
COURTS
-‐ICC
is
complimentary
to
national
criminal
jurisdictions-‐ART
1
-‐ICC
is
a
court
of
LAST
RESORT.
It
will
only
act
where
state
parties
are
UNABLE
or
UNWILLING
TO
PROSECUTE-‐
ART
17
HOW
IS
THE
JURISDICTION
OF
ICC
INITIATED?
a. A
state
party
will
lodge
a
complaint
with
the
prosecutor-
Art
14
(UN
charter)
b. Referral
from
the
UN
security
council
c. Prosecutor
may
initiate
investigation
on
its
own-‐Article
15
d. Where
the
alleged
crime
was
committed
on
the
territory
of
a
state
party
(or
where
the
state
on
whose
territory
the
crime
was
committed
has
accepted
the
jurisdiction
of
the
court
4.4
DETERMINATION
VENUE
OF
COURTS
IN
NIGERIA
AND
ITS
RELAVANCE
RELEVANCE-
To
know
the
appropriate
judicial
division/
magisterial
district
to
institute
a
criminal
action.
DETERMINATION
OF
VENUE-
• Subject
matter
of
the
dispute-‐OLOWU
V.
NIG.
ARMY(failure
to
perform
military
duty
tried
at
military
tribunal).
• Judicial
division
or
magisterial
district
of
a
state
in
Nigeria
WHEN
CAN
AN
ACTION
BE
COMMENCED
IN
A
STATE
HIGH
COURT/
MAGISTRATE
COURT?
An
action
may
be
commenced
in
a
judicial
division
or
magisterial
district
of
a
state
as
follows;
• Where
the
offence
was
wholly
or
partly
committed-‐
IBORI
V.
FRN
• Where
a
consequence
of
the
offence
has
occurred
• Where
property
or
person
(subject
matter)
has
been
transported
or
found
-‐
S.64
CPL;
SECTION
134
CPCL;
SECTION
58
ACJL,
• Where
venue
is
uncertain,
any
of
the
places
it
was
committed
can
be
the
venue.
s64(d)
CPL;
s135
CPCL;
S.58(d)
ACJL,
George
v.
FRN
(2011)
10
NWLR
(pt
1254)
P.
1
WEEK
5:
SUMMONS,
ARREST
AND
SEARCHES
A
Magistrate
may
by
summons
or
warrant
of
arrest
compel
the
attendance
in
court
of
any
person
accused
of
having
committed
an
offence
in
any
place
within
or
outside
Nigeria
provided
the
offence
is
triable
in
the
state:
s79
CPL,
47(1)
CPCLL,
16
ACJL
and
s.
?
ACJA.
Summons
and
warrant
of
arrest
are
issued
based
on
complaint
made
by
any
person
(usually
a
police
officer)
showing
that
the
person
named
therein
is
reasonably
suspected
to
have
committed
an
offence.
The
magistrate
has
the
discretion
to
issue
or
not
to
issue.
Where
a
magistrate
refuses
to
issue,
he
must
give
reasons:
s154(1)
CPCL
MODES
OF
SECURING
THE
ATTENDANCE
OF
THE
ACCUSED
PERSON
This
can
be
done
in
three
(3)
main
ways:
summons;
by
arrest
with
warrant;
by
arrest
without
warrant
SUMMONS
A
summons
is
a
document
issued
by
the
court
directing
the
person
named
therein
to
appear
in
court
at
a
stipulated
date
and
time
to
answer
to
the
charge
or
allegation
or
complaint
against
him.
WHO
CAN
ISSUE
SUMMONS?
• A
Magistrate
• A
Judge
• A
Justice
of
Peace
(this
is
only
provided
for
under
the
CPCLL
s47)
• See
s79
CPL,
s82
ACJL
WHEN
IS
A
SUMMONS
ISSUED
• Minor
offences
• Where
the
person
is
not
likely
to
refuse
to
attend
the
court
or
police
station
• Offences
in
Column
4
Appendix
A
to
the
CPCLL
CONTENTS
OF
A
SUMMONS
1.
A
concise
statement
of
the
alleged
offence.
2.
The
name
of
the
individual
charged
with
the
alleged
offence.
3.
An
invitation
to
the
named
individual
to
attend
court
or
police
station
at
a
particular
date
or
time
being
NOT
LESS
THAN
FORTY
EIGHT
HOURS
after
the
service
of
the
summons
on
him.
4.
The
date
the
summons
was
issued.
5.
The
signature
of
the
issuing
authority
-‐S.
83&
87
CPL,
s.47(2)
CPCLL,
S.79&85
ACJL,
s.
?
ACJA
NB-‐In
CPL
states’
magistrate
has
a
discretion
to
issue
a
summons
but
he
must
give
reasons-‐
S.81
CPL
• It
has
been
held
in
Goodman
v
Ebans
Ltd
that
the
use
of
a
rubber
stamped
signature
is
a
sufficient
compliance
with
requirement
for
signature
• Summons
must
be
in
duplicate
copy-‐
S.85
ACJL
RATIONALE-‐
This
is
to
serve
as
evidence
of
service.
WHO
CAN
SERVE
A
SUMMONS?
1. Police
officer;
2. Officer
of
the
court;
3. Authorised
public
servant
S.88
CPL;
S.48
CPCLL;
S.86
ACJL,
s.
?
ACJA
DAYS
AND
TIME
FOR
SERVICE
OF
SUMMONS-
S.82
CPL
S.81
ACJL
• It
must
be
served
within
the
hours
of
8am-6pm.-‐(LAGOS
ONLY)
• A
summons
may
be
issued
or
served
on
any
day
including
a
Sunday
or
Public
Holiday.
• Summons
served/issued
on
SUNDAY
and
PUBLIC
HOLIDAY
take
effect
from
next
working
day-‐S.81(B)
ACJL.
NB-DOES
NOT
APPLY
IN
THE
NORTH-
CPCLL
IS
SILENT
on
this
MODES
OF
SERVING
SUMMONS
A- PERSONAL
SERVICE
is
required:
S.
89
CPL;
S.49(1)
CPCL;
S.
87
ACJL;
SUMMONS
MUST
BE
SERVED
PERSONALLY
ON;
a- INDIVIDUALS
-‐s89(a)CPL;
49(1)CPCLL;
s.87(a)
ACJL;
s.?
ACJA
b-‐ Firms
or
corporations
can
be
served
through
a
1. SECRETARY
2. MANAGER
3. PRINCIPAL
OFFICER
at
the
company’s
premises-
section
50(1)
CPCL.
Firms
can
be
served
through
1. one
of
the
PARTNERS
2. SECRETARY/DIRECTOR
3. CHIEF
AGENT
4. or
by
leaving
it
at
the
premises.-
S.89(b)
CPL;
S.87(b)ACJL
5. Local
government
council
(in
accordance
to
LG
law)
-
S.89(c)CPL;
S.51CPCLL;
S.87(c)ACJL;
s.?
ACJA
6. Government
employee-(sent
to
HOD)-
S.91
CPL;
S.89
ACJL
PROOF
OF
PERSONAL
SERVICE
1. An
individual
who
is
personally
served
with
a
summons
to
appear
must
acknowledge
receipt
on
the
back
of
the
duplicate
copy
of
the
summons:
s94
CPL,
S.
49(2)
CPCL,
S.
92
ACJL
2. NB-
Any
person
refusing
to
endorse
may
be
arrested
and
is
liable
to
a
maximum
of
14DAYS
imprisonment:
S.93
ACJL;
S.95
ACJL.
3. However
persons
who
cannot
sign
or
make
their
mark
must
be
served
in
the
presence
of
a
witness
–
S.
53
CPCL(
IIITERATES
&
BLIND
PERSONS)(NORTH
ONLY)
B-SUBSTITUTED
SERVICE
Can
only
be
done
on
two
conditions-‐
where
personal
service
is
not
possible
and
with
leave
of
court.
MODES
OF
SUBSTITUTED
SERVICE
Section
90
CPL
&
88
ACJL
prescribes
the
various
substituted
modes
of
service
a.
Pasting
of
the
summons
on
a
conspicuous
part
of
the
last
known
address
of
the
individual
named
in
the
summons
NOTE-S.
52
CPCL
allows
for
substituted
service
by
leaving
a
duplicate
copy
of
the
summons
with
an
adult
male
member
of
the
individual’s
family.(NORTH
ONLY)
PROOF
OF
SUBSTITUTED
SERVICE
This
is
usually
by
Affidavit
or
declaration
stating
the
reasons
for
the
substituted
service
and
how
it
was
done-‐S.
55
CPCL.
In
the
SOUTH
the
person
effecting
service
must
endorse
particulars
of
method
of
service
on
the
duplicate:
S.94
CPL;
S.92
ACJL
NB-‐
Where
person
serving
summons
is
absent
at
hearing,
endorsement
on
a
duplicate
and
affidavit
show
date
and
method
of
effecting
service
is
sufficient
proof-‐s.90
ACJL;S.93
CPL
LIFE
SPAN
OF
A
SUMMONS
S.
103
CPL,
S.
383
CPCL;
S.100
ACJL
• Once
a
summons
is
issued,
it
remains
valid
and
subsisting
until
it
is
CANCELLED
or
EXECUTED.
• It
is
not
invalidated
by
the
DEATH,
RETIREMENT,
REMOVAL
FROM
OFFICE,
PROMOTION
OR
LOSS
OF
JURISDICTION
by
the
issuing
authority.
CONSEQUENCES
OF
DISOBEYING
SUMMONS
A
warrant
of
arrest
may
be
issued
to
compel
the
individual
to
appear
and
answer
to
the
alleged
offence:
S.
96
CPL;
S.70CPCL;
S.94
ACJL;
SERVICE
OF
SUMMONS
OUTSIDE
A
JUDICIAL
DIVISION/DISTRICT
OF
ISSUE
This
will
be
done
by
sending
a
duplicate
of
the
summons
to
the
court
within
the
division
where
the
offender
resides:
S.92
CPL;
S.54
CPCL;
S.91
ACJL
SERVICE
AND
EXECUTION
OF
A
SUMMONS
OUTSIDE
THE
STATE
OF
ISSUE
SECTION
478
CPL;
S.361
ACJL
Summons
(other
than
summons
to
compel
attendance
of
a
witness)
issued
in
one
state
may
be
served
on
the
person
to
whom
it
is
addressed
in
another
state.
This
applies
only
to
summons
on
information
or
complaint.
The
endorsement
of
a
Magistrate
in
the
state
of
execution
is
not
required.
The
service
of
such
summons
in
another
state
follows
the
same
process
as
its
execution
in
the
state
in
which
the
summons
was
issued.
The
person
on
whom
the
summons
is
served
must
endorse
the
duplicate
copy,
acknowledging
service.
No
provision
in
CPCL
EFFECT
OF
FAILURE
TO
ENDORSE
SUMMONS
NOTE-‐Failure
to
do
so
is
punishable
by
detention
in
custody
or
prison
for
a
Period
Not
Exceeding
14
Days
as
a
court
deems
fit.
Where
service
is
by
substituted
method,
the
person
who
made
such
service
shall
endorse
the
particulars
of
such
substituted
method
on
the
duplicate
copy.
TAKE
NOTE:
All
other
summons
(e.g.
witnesses
summons
etc)
can
only
be
served
outside
the
state
of
issue
by
leave
of
court:
S.
479
CPL;
S
362
ACJL
ARREST
WITH
WARRANT
WHEN
CAN
A
WARRANT
OF
ARREST
BE
ISSUED?
a.
Where
the
Law
creating
the
offence
states
that
an
offender
cannot
be
arrested
without
warrant.
b.
Where
a
summons
is
disobeyed.
c.
Where
a
serious
offence
is
alleged
against
the
offender
A
warrant
of
arrest
is
an
authority
directed
to
a
police
officer
or
any
other
person
to
arrest
an
offender:
s25&27
CPL,
s58
CPCL,
s22
ACJL
WHO
CAN
ISSUE
A
WARRANT
OF
ARREST
Under
the
CPL
only
a
Magistrate
or
a
judge,
may
issue
a
warrant
of
arrest
–
S.
22(1)
CPL
&
s23
ACJL
Under
the
CPCL,
in
addition
to
a
magistrate
or
judge,
a
Justice
of
the
Peace
can
also
issue
a
warrant
of
arrest:
S.
56(1)
CPCL.
NOTE(EXAMS)POLICE
OFFICER
CANNOT
ISSUE
A
WARRANT
OF
ARREST.
ISSUANCE
OF
WARRANT
OF
ARREST
• A
warrant
of
arrest
can
only
be
issued
where
there
is
a
COMPLAINT
ON
OATH
that
the
person
therein
is
suspected
to
have
committed
an
offence:
s22(1)
CPL,
s56(1)
CPCL,
s23
ACJL,
NB-allegations
in
a
letter
not
sufficient-
Ikonne
v.COP
(1986)
• Complaint
must
be
made
by
the
a. complainant
himself
or
b.
by
a
material
witness.-‐
S.23
CPL;
S.
23
ACJL
• The
complaint
on
oath
shall
be
made
to
a
Judge
or
Magistrate
sitting
in
his
capacity
as
a
Judge
or
Magistrate-‐Ikonne
v.
C.O.P
(a
Judge
issued
a
warrant
acting
in
his
capacity
as
a
Chairman
of
a
Judicial
Commission
of
Inquiry.
It
was
quashed
on
APPEAL)
NB-In
the
north
(CPCL),
the
complaint
need
not
be
under
oath.
Can
be
issued
once
complaint
discloses
an
offence
NB-‐A
magistrate
can
lawfully
issue
a
warrant
of
arrest
irrespective
of
the
fact
that
he
lacks
jurisdiction
to
try
the
alleged
offender
for
the
offence.
==#
An
Alkali
Court/Area
Court
CANNOT
issue
a
warrant
of
arrest
if
the
warrant
is
to
be
served
in
CPL
states–
COP
V.
APAMPA
CONTENTS
OF
A
WARRANT
OF
ARREST
1.
Concise
statement
of
the
alleged
offence.
2.
Name
of
the
individual
charged
with
the
alleged
offence.
3.
Order
directing
the
police
or
person
executing
the
warrant
to
arrest
the
offender
4.
Date
of
issue
5.
Signature
of
the
issuing
authority.
6.
A
warrant
of
arrest
must
be
in
duplicate
copy.
ACRONYM-‐
CNODSD
-‐
Sections
22
CPL,
s56
CPCL,
s22
ACJL
DAY/TIME
AND
PLACE
OF
ISSUE
AND
EXECUTION
OF
A
WARRANT
OF
ARREST
A
warrant
of
arrest
may
be
issued
or
executed
on
any
day
including
a
Sunday
or
Public
Holiday
and
anywhere.–
S.24&28
CPL;
s63
CPCL;
S.24&27ACJL
PERSONS
WHO
CAN
EXECUTE
A
WARRANT
OF
ARREST-S.25
CPL/ACJL;
S.58
CPCL
1.
Any
police
officer-
2.
May
be
directed
to
all
police
officers
PLACES
WHERE
WARRANT
OF
ARREST
CANNOT
BE
EXECUTED
1.
A
warrant
of
arrest
cannot
be
executed
in
a
court
room
while
the
court
is
sitting
–
S.28(2)CPL
;S.27(2)ACJL;
NB-CPCL
is
silent
2.
In
a
legislative
house
while
in
session
EXCEPT
with
the
permission
of
the
person
presiding
e.g.
Speaker
of
the
House
of
Representatives-‐Tony
Momoh
v.
Senate
of
National
Assembly
&
2
ors;
s31
Legislative
Houses
(Powers
and
Privileges)
Act
2004
MODE
OF
EXECUTION
OF
WARRANT
OF
ARREST
The
Police
Officer
or
any
person
executing
the
warrant
of
arrest
must
disclose
the
substance
of
the
warrant
to
the
suspect
and
the
warrant
to
the
offender
at
the
time
of
arrest-
S.
28
(3)
CPL;
;S.60
CPCL;
S.27(3)
ACJL
EXCEPTION-reasonable
ground
for
non
disclosure
(ESCAPE/RESISTANCE/RESCUE)
Where
the
warrant
of
arrest
is
not
immediately
available
at
the
time
of
arrest,
the
officer
may
still
arrest
the
offender
but
must
disclose
the
existence
of
the
warrant
to
the
arrested
person,
and
thereafter
show
the
warrant
to
the
person
as
soon
as
practicable.
S
29
CPL;
S.
61
CPCL;
S,28
ACJL.
Accused
shall
be
informed
of
the
offence
by
the
police
when
arrested
unless
caught
in
the
middle
of
the
act
or
chased
immediately
after
the
act:
s5
CPL;
s38
CPCL
• Constitutional
right
breached
as
she
was
detained
for
3
days:
s35(4)
&
s35(5)
Constitution
• Cannot
handcuff
her
as
she
didn’t
resist
arrest:
s4
CPL.
However,
if
proved
that
ring
was
stolen,
then
she
would
be
convicted
even
though
an
unlawful
arrest.
Should
touch
the
person
and
inform
the
person
that
she
is
under
arrest
• Under
Musa
Sadau,
the
evidence
if
relevant
is
admissible
but
note
s14
&
15
EA
2011
Constitutional
safeguards
• Right
to
remain
silent
until
after
consulting
with
legal
practitioner
or
anybody
of
his
choice
• S35(3)
in
writing
and
in
the
language
he
understands
for
reasons
for
arrest
• S35(4).
The
reasonable
time
of
24hours
or
48
hours
does
not
apply
to
capital
offences.
Counsel
for
Ngaga
bombing
suspect
is
arguing
for
his
release
as
Terrorism
Act
has
not
been
amended
to
include
the
bombing
as
a
capital
offence
• S35(5)
• S37
• S44(k):
relating
to
the
temporary
taking
of
property
for
any
examination,
investigation
or
property
• Right
to
be
told
of
the
right
to
free
legal
representation:
Legal
Aid
Act.
This
is
mandatory
in
Lagos
State
to
be
informed
of
this
right
• Commandant
General,
the
Nigerian
and
Civil
Defence
Corps
and
another
v
Emerson
Ukpeye
[2012]
(Ct
of
Appeal
in
Calabar)
–
man
alleged
to
have
vandalised
some
pipelines
belonging
to
the
government
so
his
premises
was
searched.
Procedural
safeguards:
also
mention
ACJL
• Woman
in
purdah
has
a
right
to
withdraw
before
a
search
warrant
where
the
person
is
occupied
is
executed:
s79
CPCL
• In
the
North,
2
adults
to
be
present
when
executing
a
search
warrant
• Summons:
s67
CPCL:
where
a
person
has
been
issued
a
public
summons,
must
be
given
30
days
to
appear
before
that
CT.
• Any
CT
to
issue
the
summons,
must
be
a
CT
to
that
can
try
that
offence
• Not
have
been
handcuffed
unless
violent,
in
your
safety
and
resisting
arrest
• Also
note
police
cannot
enter
the
premises
by
force
unless
entry
is
denied
and
then
police
is
allowed
to
break
in
and
break
out.
Summons
(NB:
in
real
life,
a
summons
cannot
be
issued
for
possessing
fake
printing
machines
as
this
is
a
serious
offence).
Pg
52
(Chief
Dede
Scenario)
• In
the
High
CT
of
Kaduna
in
the
Kaduna
Judicial
Division
• FHC/KB/01/2014
• The
State
v
Alhaji
Atutuwa
of
No
5
Oduwole
Street,
Kaduna.
In
magistrate
CT,
it
is
Commissioner
of
Police
v
Alhaji
Atutuwa
• Being
in
unlawful
possession
of
fake
currency
printing
machine
on
(date)
at
No
5
Oduwole
Street,
Kaduna
house
• Justice
Kobiko
at
High
CT
2
on
the
8th
day
of
December
2014
at
9
o’clock
dated
this
5th
day
of
December
2014
• Being
in
possession
a
fake
currency
printing
machine
on
(Date)
at
No
5
Oduwole
Street
• Alhaji
Atutuwa
• 8th
day
of
December
2014
• Signature
and
seal
Onyekwere
v
The
State
(1973):
it
is
the
duty
of
the
police
to
investigate
complaints
or
any
report
of
the
commission
of
a
crime.
S4
Police
Act
–general
duties
of
the
police,
ss3-‐10
CPL,
s117-‐133
CPCL,
s1-‐10
ACJL
repeal
and
re-‐enactment
law
2011
Ss
3-‐10
CPL
is
not
as
detailed
as
CPCL
Fawehinmi
v
IGP
(2002):
duty
to
investigate
crimes
not
every
investigation
that
results
in
a
criminal
prosecution.
Notwithstanding
s308
of
the
Constitution,
held
that
a
serving
Governor
can
be
investigation
as
difference
btw
investigation
and
criminal
proceedings/criminal
prosecution.
Suggested
in
the
case
that
arrest
should
be
the
last
process
in
the
investigation
of
any
crime.
Only
when
there
is
a
risk
of
flight
by
the
suspect,
then
can
arrest
before
investigation.
Akinseye
v
COP(1966):
CT
shall
take
judicial
notice
of
the
general
duties
of
the
police
Police
duties
does
not
extend
to
enforcement
of
contracts
and
collection
of
debts:
McLaren
v
Jennings
[2003]
3
NWLR
(
Pt
808)
470
CPCL
• S117-‐133
CPCL
is
Chapter
XII
which
deals
with
information
to
the
police
and
their
power
to
investigate
Right
of
police
to
interview
or
interrogate
suspects
or
arrestees
• Not
in
every
context
can
the
words
interview
and
interrogate
be
used
interchangeable.
Former
is
a
conversation
in
a
non-‐coercive
environment
btw
police
officer
and
suspect
or
witness
(to
gather
information
about
what
the
person
knows
relevant
to
the
subject
of
inquiry).
Latter
refers
to
a
more
structured
interview
of
a
suspect
and
in
most
cases,
the
interview
transitions
into
interrogate
where
the
police
has
a
fair
idea
that
the
person
has
something
to
hide
or
is
implicated
in
the
crime.
• Supreme
CT
held
in
2
cases
[Onungwa
v
The
State
(1976)
and
Manship
Namsoh
v
The
State
(1993)]
that
the
police
can
interview
or
interrogate
any
person.
• The
person
may
volunteer
information
and
even
if
the
person
was
not
cautioned
and
he
volunteers
information,
it
does
not
affect
the
admissibility
of
this
information
in
CT
Power
of
police
to
record
statements
• S35(2)
1999
Constitution:
a
person
who
is
arrested
or
detained
has
the
right
to
remain
silent
or
avoid
answering
any
question
until
consultation
with
a
legal
practitioner
or
person
of
choice
• Even
where
the
police
does
not
warn
the
police
as
to
this
right,
any
statement
he
makes
is
still
admissible
• Different
jurisdictions:
CPCL
states,
CPL
states,
states
that
have
their
own
administration
of
criminal
justice
(Ekiti,
Lagos)
• CPCL
states
(North):
the
rule
regulating
taking
of
statement
is
the
1970
rules
–
Criminal
Procedure
(Statement
of
Police
Rules)
1970
• CPL
states
(south
except
Lagos):
Judges
Rules
(from
England
who
have
moved
on
from
the
Judges
Rules).
While
the
Judges
rules
are
rules
of
administrative
convenience,
the
1970
rules
have
been
held
to
be
binding
(Supreme
CT
as
1970
rules
have
partial
statutory
force).
Non-‐compliance
with
Judges
Rules
may
not
affect
admissibility
of
a
voluntary
statement
–
Egbogonome
v
The
State
(1993)
Right
of
the
suspect
to
be
cautioned
• Both
1970
rules
and
Judges
Rule
provide
that
an
arrestee
should
be
cautioned
before
statements
are
recorded
• No
need
for
a
caution
if
the
police
have
not
decided
to
charge
the
suspect
• A
statement
is
not
rendered
inadmissible
merely
because
no
caution
was
administered:
s31
Evidence
Act
2011.
See
Sections
30
and
31
E.A.
on
admissibility
of
physical
evidence
discovered
as
a
result
of
inadmissible
evidence.
Section
30
EA:
Where
information
is
received
from
a
person
who
is
accused
of
an
offence,
whether
such
person
is
in
custody
or
not,
and
as
a
consequence
of
such
information
any
fact
is
discovered,
the
discovery
of
that
fact,
together
with
evidence
that
such
discovery
was
made
in
consequence
of
the
information
received
from
the
defendant,
may
be
given
in
evidence
where
such
information
itself
would
not
be
admissible
in
evidence.
Section
31
EA:
If
a
confession
is
otherwise
relevant,
it
does
not
become
irrelevant
merely
because
it
was
made
under
a
promise
of
secrecy,
or
in
consequence
of
a
deception
practised
on
the
defendant
for
the
purpose
of
obtaining
it,
or
when
he
was
drunk,
or
because
it
was
made
in
answer
to
questions
which
he
need
not
have
answered,
whatever
may
have
been
the
form
of
these
questions,
or
because
he
was
not
warned
that
he
was
not
bound
to
make
such
statement
and
that
evidence
of
it
might
be
given.
The
Rules
were
first
issued
in
1912
by
the
Judges
of
the
King's
Bench
to
give
English
police
forces
guidance
on
the
procedures
that
they
should
follow
in
detaining
and
questioning
suspects.
The
Home
Secretary
had
requested
the
judges
to
explain
how
an
investigation
should
be
conducted
to
avoid
the
resulting
evidence
being
ruled
inadmissible
in
court.
The
rules
were
intended
to
halt
a
divergence
in
practice
that
had
developed
among
different
police
forces,
and
replaced
earlier
informal
guidance,
such
as
Sir
Howard
Vincent's
Police
Code
and
Manual
of
Criminal
Law.
The
Judges'
Rules
are
not
rules
of
law,
but
rather
rules
of
practice
for
the
guidance
of
the
police,
setting
out
the
kinds
of
conduct
that
could
cause
a
judge
to
exercise
discretion
to
exclude
evidence,
in
the
interests
of
a
fair
trial.
The
rules
did
not
alter
the
law
on
admissibility
of
evidence,
but
became
a
code
of
best
practice:
it
was
assumed
that
statements
given
by
a
suspect
in
accordance
with
the
Rules
would
be
admissible
in
evidence.
The Rules:
• allowed
the
police
to
question
any
person
with
a
view
to
finding
out
whether,
or
by
whom,
an
offence
had
been
committed
• required
the
police
to
give
a
caution
when
they
had
reasonable
grounds
to
suspect
that
a
person
had
committed
an
offence
• required
a
further
caution
when
a
person
was
charged
and
prohibited
questioning
afterwards
charging
save
in
exceptional
circumstances
• required
a
record
of
questioning
to
be
kept
• gave
guidance
on
the
best
way
to
record
a
formal
written
statement
Five
further
rules
were
added
to
the
original
four
Rules
in
1918,
and
the
rules
were
further
explained
in
1934
in
a
Home
Office
Circular
536053/23.
The
Rules
were
reissued
in
1964
as
Practice
Note
(Judge's
Rules)
[1964]
1
WLR
152,
and
it
is
this
1964
version
that
is
applicable
in
Nigeria
although
there
have
since
been
replaced
in
England
and
Wales
in
1986
by
Code
C
made
under
the
Police
and
Criminal
Evidence
Act
1984.
As
explained
in
R.
v.
Viosin
(supra),
essentially
the
rules
are
administrative
directions
and
do
not
have
the
force
of
law.
For
this
reason,
failure
to
observe
any
of
them
in
the
taking
of
a
statement
will
not
necessarily
render
the
statement
inadmissible
in
evidence,
although
it
may
do
so
–
Nwaebonyi
v.
State
(1992)
5
NWLR
(Pt.
244)
698
C.A;
Ejinma
v.
State
(1991)
6
NWLR
(Pt.
200)
627
SC;
R.
v.
Wattam
(1952)
36
Cr.
App
R.
72;
R.
v.
Day
(1952)
36
Cr.
App.
R.
91.
The
test
of
admissibility
is
whether
the
statement
was
made
voluntarily
–R.
v.
Prager
(1972)
56
Cr.
App.
R.
151.
Rules
2
and
3
of
the
Judges
Rules
appear
to
be
the
most
commonly
applied
by
police
officers
in
Nigeria.
As
soon
as
a
police
officer
has
evidence
which
would
afford
reasonable
ground
for
suspecting
that
a
person
has
committed
an
offence,
he
shall
caution
that
person
or
cause
him
to
be
cautioned
before
putting
to
him
any
questions,
or
further
questions,
relating
to
that
offence.
Under
Rule
2
of
Judges
Rule,
the
caution
shall
be
in
the
following
terms
“you
are
not
obliged
to
say
anything
unless
you
wish
to
do
so
but
whatever
you
say
may
be
put
into
writing
and
given
in
evidence”
Where
a
person
is
charged
with
or
informed
that
he
may
be
prosecuted
for
an
offence
he
shall
be
cautioned
in
the
following
terms
“do
you
wish
to
say
anything?
You
are
not
obliged
to
say
anything
unless
you
wish
to
do
so
but
whatever
you
say
will
be
taken
down
in
writing
and
may
be
given
in
evidence”.
After
the
above
question,
any
other
one
relating
to
the
offence
should
not
be
put
unless
they
are
necessary
to
prevent
or
minimise
harm
or
loss
to
another
person
or
to
the
public
or
to
clear
up
an
ambiguity
and
in
such
cases
a
further
caution
is
prescribed
–
Rule
3
of
Judges
Rules.
If
a
suspect
intends
to
write
his
own
statement,
he
should
be
asked
to
write
and
sign
the
following
statement
before
he
starts
writing
out
his
statement:
"I
make
this
statement
of
my
own
free
will.
I
have
been
told
that
I
need
not
say
anything
unless
I
wish
to
do
so
and
that
whatever
I
say
may
be
given
in
evidence".
And
if
it
is
written
by
a
police
officer
the
accused
must
state
at
the
end
of
the
statement
thus:
"I
have
read
the
above
statement
and
I
have
been
told
that
I
can
correct,
alter
or
add
anything
I
wish.
This
statement
is
true.
I
have
made
it
of
my
own
free
will".
Persons
other
than
police
officers
charged
with
the
duty
of
investigating
offences
must
as
much
as
possible
comply
with
the
Judges'
Rules.
Apart
from
complying
with
the
Judges'
Rules,
the
Nigerian
police
have
evolved
the
practice
of
taking
an
accused
person
who
has
made
a
confessional
statement
to
a
Superior
Officer
or
a
District
Officer
at
the
earliest
possible
time
for
endorsement.
This
is
to
give
the
accused
the
opportunity
to
deny
or
retract
his
statement.
This
practice
has
been
highly
commended
by
Courts–
R.
v.
Omorewere
Sapele
(1957)
2
FSC.
24;
Nwigboke
v.
R.
(1959)
4
F.S.C
26;
Adamu
v.
A-G.
Bendel
State
(1986)
2
NWLR
(Pt.
22)
284.
However,
the
fact
that
a
confessional
statement
does
not
contain
the
usual
cautionary
words
is
not
enough
reason
not
to
admit
it
in
evidence
–
Nwaebonyi
v.
State
(supra).
In
Sunday
Onunga
v.
The
State
(1976)
S
&
C.
169,
the
Supreme
Court
held
that
a
confession
made
without
caution
and
even
before
the
maker
was
charged
with
an
offence
is
admissible
provided
it
was
voluntary.
Also,
when
a
suspect
or
an
accused
person
who
has
been
cautioned
is
making
a
statement,
there
is
no
need
to
caution
him
again
when
he
begins
to
make
a
confession
–
Sangara
v.
The
State
(1965)
1
All
NLR
59.
As
also
previously
stated
that
the
Judges
rules
as
well
as
the
confirmation
of
confessional
statement
by
superior
police
officers
is
a
rule
of
practice
and
not
a
rule
of
law
and
therefore
failure
to
comply
with
them
does
not
render
a
confession
that
was
voluntarily
made
inadmissible.
R.
v.
Voisin
(1918)
1
KB.
531;
Abukar
v.
The
State
(1969)
NSCC
Vol.
6
at
313.
But
in
asking
the
accused
to
confirm
or
deny
his
statement
taken
down
in
a
language
other
than
English,
the
proper
thing
to
do
is
to
read
the
statement
in
its
original
form
and
not
its
English
translation
if
the
accused
is
illiterate
–
R
v.
Nwangbo
Igwe
(1960)
5
FSC.
55.
It
should
be
noted
that
where
an
interpreter
is
used
in
recording
an
accused
confession
such
confession
is
inadmissible
unless
both
the
interpreter
and
the
person
who
recorded
the
statement
are
called
as
witness
–
Nwaeze
v.
The
State
(1996)
2
NWLR
(Pt.
428)
1.
It
has
been
held
that
before
an
accused
person
can
be
invited
to
pose
for
a
photograph
which
would
strengthen
the
case
against
him,
he
should
be
cautioned
and
told
he
is
not
bound
to
pose
for
such
photograph
Ugama
v.
R
(1959)
4
FSC
218.
• Police
investigation
is
an
art
that
requires
experience
and
skill.
The
focus
is
the
legal
parameters
for
lawful
interrogation
• Interrogation
must
be
conducted
within
the
scope
of
the
constitutional
rights
of
a
suspect
and
the
provisions
of
the
Evidence
Act
ACJR
&
RL
2011
• Section
3(2)
ACJL:
an
arrestee
shall
be
informed
of
his
right
to:
• Remain
silent
or
avoid
answering
questions
or
avoid
answering
any
question
until
after
consultation
with
a
legal
practitioner
or
any
other
person
of
his
own
choice
• Consult
a
counsel
of
his
own
choice
before
making
or
writing
any
statement
or
answering
any
question
put
to
him
after
arrest
• Refuse
to
answer
any
question
or
make
or
endorse
any
statement
• Section
9(3)
ACJL:
provides
that
a
confessional
statement
must
either
be
recorded
on
video,
or
where
facilities
are
unavailable,
it
must
be
made
and
recorded
in
the
presence
of
a
counsel.
The
provision
is
commendable
for
adopting
an
ingenious
procedure
to
rein
in
police
abuse
of
suspects
in
Nigeria
but
it
does
not
provide
for
the
recording
of
entire
interrogation
sessions
• Right
to
personally
record
his
statement
if
he
so
wishes
• Right
to
dignity
of
his
person
• Right
to
bail
• Right
to
an
interpreter:
both
the
English
version
and
vincula
version
of
• Right
not
to
be
tortured
• Right
to
reasonable
visitation
• Right
to
life
(e.g.
no
extra
judicial
killing)
–
Cross
River
State
case:
man
tortured
and
sent
to
a
remote
location
where
two
other
suspects
where
killed.
He
signed
the
confession
and
had
to
dispose
of
the
bodies.
Trial
judge
said
no
matter
the
threat;
if
he
were
innocent
he
would
not
confess.
CT
of
Appeal
reversed
this
decision,
Imo
State
case:
suspect
and
his
family
were
taken
away.
On
the
way
to
the
prison,
he
was
shot.
He
was
taken
to
hospital
and
later
he
was
given
a
statement
to
sign.
Trial
judge
held
that
the
threat
was
not
present
when
he
signed
the
agreement.
The
Ct
of
Appeal
reversed
the
decision.
CONSTITUTIONAL
RIGHTS
AVAILABLE
TO
A
SUSPECT
AT
THE
POLICE
STATION
When
a
person
is
taken
to
a
police
station
for
the
commission
of
an
alleged
offence
or
on
reasonable
suspicion
of
being
about
to
commit
a
crime,
he
is
entitled
to
the
following
rights
under
the
Constitution
and
other
subsidiary
legislation,
presently
in
force:
a) Right
of
Silence
-
Section
35(2)
of
the
1999
Constitution,
provide
for
the
right
of
a
suspect
to
remain
silent
while
under
arrest
or
being
held
at
the
Police
station.
The
Section
provides:
b) Right
To
have
a
Legal
Representative
of
one’s
choice
present
during
interview-
An
accused
person
or
a
suspect,
who
is
under
arrest
or
detention,
has
a
right
to
Counsel
also
guaranteed
in
Section
35(2)
of
the
1999
Constitution,
while
under
arrest
or
being
held
at
the
Police
station.
c) Right
To
Legal
Assistance
and
Advice:
Related
to
the
right
to
legal
representation
is
the
corresponding
right
to
free
legal
services
for
those
who
cannot
afford
same.
Section
46
(4)(b)
of
the
1999
Constitution
empowers
the
National
Assembly
to
make
provisions
for
the
rendering
of
financial
assistance
to
any
indigent
citizen
of
Nigeria
where
his
rights
under
Chapter
IV
of
the
Constitution
has
been
infringed
or
with
a
view
to
enabling
him
engage
the
services
of
a
Legal
Practitioner
to
prosecute
his
claim.
Pursuant
to
this
Section,
the
Legal
Aid
Scheme
was
established
by
the
Legal
Aid
Act
Cap
L9
LFN
2004,
now
Legal
Aid
Amendment
Act
(2011).
See
also
s3(1)-(3)
ACJL
The
Legal
Aid
Act
2011
contains
several
improvements
from
the
previous
position.
The
major
areas
of
reform
are
in
the
areas
of
the
eligibility
level
of
the
scheme,
otherwise
called
means
and
merit
test.
Under
the
2004
Act,
Section
9
(1)
of
the
Act
provided
that
the
eligibility
level
for
the
purposes
of
assessing
legal
aid
is
N
5,000.00
per
annum,
this
translates
to
about
N13.00
per
day.
For
the
classes
of
cases
where
legal
aid
was
available,
the
Legal
Aid
Act
2004
also
mentioned
specific
categories
of
criminal
and
civil
cases
in
which
the
Legal
Aid
Council
may
provide
assistance,
to
wit:
A. Criminal cases
The
Legal
Aid
Act
2004
prescribed
that
the
Legal
Aid
Council
may
provide
legal
aid
for
the
following
offences
under
the
Criminal
Code:
(ii) Manslaughter
(iii) Maliciously or wilfully wounding or inflicting grievous bodily harm
(vi) Affray
(viii) Rape.
According
to
the
Act,
Legal
aid
was
also
provided
for
charges
of
aiding
or
abetting,
or
counselling
or
procuring
the
commission
of,
or
being
an
accessory
after
or
before
the
fact
to,
or
attempting
or
conspiring
to
commit,
any
of
the
offences
listed
above.
B. Civil cases
For
Civil
cases,
the
Act
also
provided
for
legal
aid
to
be
provided
for
civil
claims
in
respect
of
accidents
and
for
breaches
of
fundamental
rights
guaranteed
under
Chapter
4
of
the
Constitution.
A
major
mischief
in
the
previous
law
was
the
exclusion
of
armed
robbery,
which
accounts
for
the
majority
of
arrests
in
Nigeria,
from
the
category
of
offences
eligible
for
legal
aid.
The
new
Legal
Aid
Act
2011
thus
implemented
the
consensus
of
opinion
to
widen
the
scope
of
its
operations
in
terms
of
increase
in
the
level
and
category
of
potential
beneficiaries
from
the
scheme
and
the
subject
matter
coverage.
Section
10
(1)
of
the
Legal
Aid
Act
2011
provides
that
legal
aid
shall
be
granted
to
a
person
whose
income
does
not
exceed
the
National
Minimum
Wage.
Section
10(2)
goes
further
to
provide
that
notwithstanding
the
provisions
of
Subsection
(1),
the
Board
may
in
exceptional
circumstances
grant
legal
aid
service
to
a
person
whose
earning
exceeds
the
national
minimum
wage.
This
is
a
major
improvement.
That
is
not
all.
The
second
schedule
to
the
Act
provides
for
the
category
of
cases
that
are
eligible
for
legal
aid
and
in
Item
8
(2),
armed
robbery
is
conspicuously
included.
Furthermore,
to
give
effect
to
the
provisions
of
the
Act,
Section
19
of
the
Act
provide
for
the
monitoring
and
review
of
cases
of
awaiting
trial
detainees.
Section
19
(2)
of
the
Act
provide
that
it
shall
be
the
duty
of
all
Police
Officers
and
Courts
to
inform
suspected
persons
of
their
entitlements
to
the
services
of
a
Legal
Practitioner
from
the
moment
of
arrest
and
if
such
suspect
cannot
afford
the
services
of
a
Legal
Practitioner,
to
notify
the
Council
to
represent
him
if
he
so
desires.
And
under,
Subsection
(3)
of
the
said
Section
19,
the
Legal
Aid
Council
as
well
as
lawyers
designated
by
it
shall
have
access
to
the
interview.
Section
19
(5)
then
provides
that
the
Council
may
file
an
application
in
any
appropriate
Court
for
the
review
of
the
case
of
any
person
who
has
been
held
in
any
place
of
study
without
trial
for
a
period
exceeding
the
maximum
provided
by
the
Constitution.
How
to
Apply
for
Legal
Aid
from
the
Council
Under
the
Legal
Aid
Act,
statutory
criminal
and
civil
legal
aid
application
forms
have
to
be
used.
Applications
may
be
made
orally
or
in
writing
to
the
headquarters
of
the
Legal
Aid
Council
in
Abuja
or
to
any
Zonal
or
State
Legal
Aid
Office.
Oral
applications
must
be
reduced
in
writing
by
the
legal
aid
officer
to
whom
the
application
was
made.
d) Right
to
freedom
from
unnecessary
restraint:
Just
like
it
happens
during
arrest,
criminal
accused
persons
or
suspects
are
entitled
to
the
right
not
to
be
unnecessarily
restrained
during
Police
interview.
This
right
is
closely
associated
with
the
right
to
have
a
legal
representative
present
during
the
interview,
as
no
Lawyer
worth
his
salt
would
allow
his
client
to
be
interview
while
handcuffed,
or
in
chains
as
it
sometimes
happens.
Such
treatments
are
degrading,
contrary
to
Section
35
(1)
of
the
Constitution
and
can
render
whatever
statement
obtained
pursuant
to
such
interview
inadmissible.
What
is
more,
trial
by
ordeal
is
clearly
prohibited
under
our
Criminal
jurisprudence
–
right
to
personal
liberty
e) Right
to
bail
–
The
right
of
a
suspect
to
bail
is
a
constitutional
right
fully
guaranteed
under
Section
35(4)
and
(5)
of
the
1999
Constitution,
which
provides
that
a
suspect
is
entitled
to
be
released
with
or
without
conditions,
even
if
further
proceedings
may
be
brought
against
him,
within
a
period
of
a
day
or
two
days
of
his
arrest
and
detention,
as
the
case
may
be.
This
right
is
given
effect
to
by
the
provisions
of
Sections
17,
18
and
19
of
the
CPL
which
empowers
the
police
to
grant
bail
to
a
suspect,
on
his
entering
into
a
bond
with
or
without
a
surety
for
a
valuable
sum,
to
report
at
the
police
station
at
a
given
date
and
time.
Section
129
of
the
CPCL
makes
similar
provisions
for
bail
of
suspects
by
the
police.
This
is
also
available
in
Section
17(2)
of
the
Administration
of
Criminal
Justice
Law
(ACJL).
Where
by
virtue
of
the
nature
and
circumstances
of
a
particular
case
it
is
not
feasible
for
the
police
to
release
the
suspect
on
bail,
he
must
be
charged
to
court
not
later
than
a
period
of
24
to
48
hours,
from
the
date
of
detention
depending
on
the
circumstances
of
each
case–
Section
35
(4)
&
(5)
of
the
Constitution;
Section
3(2)
of
ACJL;
Section
17
of
CPL.
In
Eda
v.
Commissioner
of
Police
(1982)
6
NCLR,
223,
the
court
held
that
where
the
Police
arrests
and
detains
a
person
over
an
allegation
or
reasonable
suspicion
of
committing
an
offence,
and
investigation
of
the
case
are
on-‐going,
it
is
their
duty
to
offer
bail
to
the
suspect
and/or
charge
him
to
court,
within
24
hours,
under
the
appropriate
section
of
the
CPL.
Section
35(4):
Any
person
who
is
arrested
or
detained
in
accordance
with
subsection
(1)
(c)
of
this
section
shall
be
brought
before
a
court
of
law
within
a
reasonable
time,
and
if
he
is
not
tried
within
a
period
of
–
(a)
two
months
from
the
date
of
his
arrest
or
detention
in
the
case
of
a
person
who
is
in
custody
or
is
not
entitled
to
bail;
or
(b)
three
months
from
the
date
of
his
arrest
or
detention
in
the
case
of
a
person
who
has
been
released
on
bail,
he
shall
(without
prejudice
to
any
further
proceedings
that
may
be
brought
against
him)
be
released
either
unconditionally
or
upon
such
conditions
as
are
reasonably
necessary
to
ensure
that
he
appears
for
trial
at
a
later
date.
Section
35(4)
of
the
Constitution
sets
out
the
requirement
that
anyone
lawfully
detained
shall
be
brought
before
a
court
of
law
“within
a
reasonable
time”.
Section
35(5)
goes
on
to
define
“reasonable
time”
as
one
day,
in
a
situation
where
a
court
of
competent
jurisdiction
is
with
40
kilometres
radius
from
the
accused’s
location
(s.
35(a)),
or
a
period
of
two
days
or
such
longer
period
as
in
the
circumstances
may
be
considered
by
the
court
to
be
reasonable
(s.
35(b)).
f) Right
to
be
taken
to
Court
within
a
reasonable
time:
Section
35
of
the
CFRN,
1999
provides
for
Right
to
personal
liberty.
Section
35(1)
of
the
CFRN,
1999
states
that
every
person
shall
be
entitled
to
his
personal
liberty
and
no
person
shall
be
deprived
of
such
liberty.
As
an
attribute
of
that
right,
Section
35(4)
of
the
CFRN,
1999
states
that
a
person
arrested
must
be
brought
before
a
court
of
law
within
a
reasonable
time.
What
this
entails
is
that
in
the
course
of
questioning,
the
Police
should
always
avert
their
minds
to
be
presumption
of
innocence,
and
refrain
from
treating
the
interviewee
as
a
condemned
criminal.
Eda
v.
Commissioner
of
Police
(1982)
6
NCLR,
223
provided
an
opportunity
for
the
Courts
to
give
full
vigour
to
the
provisions
of
Section
35
(4)&
(5)
of
the
Constitution
by
declaring
Section
17
of
the
CPL
and
Section
27
of
the
Police
Act
void
for
inconsistency
for
the
said
Constitutional
provision.
g) Right
to
presumption
of
innocence:
Section
36(5)
of
the
CFRN,
1999
states
that
every
person
charged
with
a
criminal
offence
shall
be
presumed
to
be
innocent
until
proven
guilty.
h) Right
to
be
informed
(in
writing)
of
the
reason
for
arrest:
Section
35(3)
of
the
CFRN,
1999
states
that
a
person
arrested
shall
be
informed
within
24
hours
of
the
facts
and
grounds
for
his
arrest
or
detention
(in
a
language
he
understands).
This
applies
to
arrest
and
detention
as
well
as
to
interview.
A
person
being
interviewed
ought
to
be
informed
of
his
status
in
the
interview,
whether
as
a
suspect
or
an
a
witness,
this
is
to
enable
him
decide
whether
to
activate
his
right
against
self
incrimination
or
the
right
to
Counsel
of
his
choice.
i) Right
to
public
apology:
Section
35(6)
of
the
CFRN,
1999
states
that
any
person
who
is
unlawfully
arrested
or
detained
shall
be
entitled
to
compensation
and
public
apology
from
the
appropriate
authority
or
person.
This
thus
arises
if
after
the
interview
and/or
pre-‐
trial
investigations,
it
is
realized
that
the
person
was
wrongly
arrested.
j) Right
to
counsel:
section
36(6)(c)
Constitution
Alibi
• Alibi:
a
plea
that
the
suspect
could
not
possibly
have
committed
the
offence
in
question
because
he
was
somewhere
else
at
the
relevant
time:
Ayan
v
The
State
(2013)
• The
suspect
is
under
a
duty
to
raise
alibi
at
the
earliest
opportunity
i.e.
immediately
he
is
informed
that
he
is
suspected
to
have
committed
the
crime
–
Agu
v
The
State
(1985);
Ozaki
v
The
State
(1990)
• He
must
not
only
raise
the
defence,
but
also
provide
particulars
of
the
place
he
was
and
the
person
he
was
with
at
the
relevant
time
–
Ntam
&
Anor
v
The
State
(1967)
Duty
on
the
prosecution
to
investigate
the
alibi
• The
police
are
obliged
to
investigate
alibi
that
is
properly
raised
• No
need
to
investigate
alibi
where
reliable
eye
witnesses
can
place
the
accused
at
the
scene
of
the
crime
or
where
it
is
raised
to
send
the
police
on
a
fruitless
investigation
–
Njoven
v
The
State
(1973);
Omotola
&
Anor
v
The
State
(2009)
• Where
a
person
says
he
has
an
alibi
in
the
statement
to
the
police,
he
must
appear
in
CT
to
verify
the
alibi,
if
not
the
CT
can
dispense
with
the
alibi
Confession
• Reliable
confession
is
the
strongest
piece
of
evidence
even
stronger
than
eye
witness
testimony
• An
accused
may
be
convicted
upon
his
confession
alone
without
any
evidence
and
without
corroboration.
Strong
because
seen
as
the
fact
that
the
accused
wants
to
unburden
himself
of
his
guilt
• Section
28
E.A.
2011:
A
confession
is
an
admission
made
at
any
time
by
a
person
charged
with
a
crime,
stating
or
suggesting
the
inference
that
he
committed
that
crime.
• Any
statement
oral
or
written
suggesting
the
inference
that
the
accused
has
committed
a
particular
offence
• A
confession
made
before
or
during
investigation
and
before
trial
is
called
an
informal
confession
while
an
admission
of
the
commission
of
an
offence
made
in
court
or
in
a
judicial
or
quasi-‐judicial
proceeding
is
called
a
formal
confession
or
plea
of
guilty.
• Focus
of
the
class
in
on
informal
confessions
Form
of
a
confession
• A
confession
may
be
oral
or
it
may
be
in
writing:
Suleiman
Olawale
Arogundare
v
The
State
(2009):
the
appellant
killed
his
father
(Abuja).
The
testimony
of
the
officer
was
that
he
met
the
suspect
awake
around
2am
wide
awake.
He
asked
him
why
he
was
awake
and
he
said
that
it
was
because
the
ghost
of
his
father
who
he
had
killed
was
hunting
him.
Interestingly,
the
written
statement
was
thrown
out
but
the
oral
statement
was
upheld
all
the
way
to
the
Supreme
CT
• In
Lagos
State,
a
confessional
statement
must
either
be
made
in
the
presence
of
a
legal
practitioner
or
recorded
on
video:
s9(2)
ACJL
Admissibility
of
confessional
statement
• Section
29(1)
EA:
In
any
proceeding,
a
confession
made
by
a
defendant
may
be
given
in
evidence
against
him
in
so
far
as
it
is
relevant
to
any
matter
in
issue
in
the
proceedings
and
is
not
excluded
by
the
court
in
pursuance
of
this
section.
• S29(2)
EA:
If,
in
any
proceeding
where
the
prosecution
proposes
to
give
in
evidence
a
confession
made
by
a
defendant,
it
is
represented
to
the
court
that
the
confession
was
or
may
have
been
obtained
—(a)
by
oppression
of
the
person
who
made
it;
or
(b)
in
consequence
of
anything
said
or
done
which
was
likely,
in
the
circumstances
existing
at
the
time,
to
render
unreliable
any
confession
which
might
be
made
by
him
in
such
consequence,
the
court
shall
not
allow
the
confession
to
be
given
in
evidence
against
him
except
in
so
far
as
the
prosecution
proves
to
the
court
beyond
reasonable
doubt
that
the
confession
(notwithstanding
that
it
may
be
true)
was
not
obtained
in
a
manner
contrary
to
the
provisions
of
this
section.
• Section
29
(3):
In
any
proceeding
where
the
prosecution
proposes
to
give
in
evidence
a
confession
made
by
a
defendant,
the
court
may
of
its
own
motion
require
the
prosecution,
as
a
condition
of
allowing
it
to
do
so,
to
prove
that
the
confession
was
not
obtained
as
mentioned
in
either
subsection
(2)(a)
or
(b)
of
this
section.
• S29(5):
In
this
section
"oppression"
includes
torture,
inhuman
or
degrading
treatment,
and
the
use
or
threat
of
violence
whether
or
not
amounting
to
torture.
• Sections
30
&
31
EA:
any
physical
evidence
discovered
is
admissible
even
if
recovered
from
tortured
statement
• Anti-‐Torture
Bill
2013
does
not
exclude
the
fruit
of
coerced
confessions
even
when
the
confessional
statement
has
been
excluded
• Section
14
EA:
Evidence
obtained
(a)
improperly
or
in
contravention
of
a
law;
or
(b)
in
consequence
of
an
impropriety
or
of
a
contravention
of
a
law,
shall
be
admissible
unless
the
court
is
of
the
opinion
that
the
desirability
of
admitting
the
evidence
is
out-‐weighed
by
the
undesirability
of
admitting
evidence
that
has
been
obtained
in
the
manner
in
which
the
evidence
was
obtained.
• Section
15
EA:
For
the
purposes
of
section
14,
the
matters
that
the
court
shall
take
into
account
include—
(c)
the
nature
of
the
relevant
offence,
cause
of
action
or
defence
and
the
nature
of
the
subject-‐matter
of
the
proceeding;
(d)the
gravity
of
the
impropriety
or
contravention;
(e)whether
the
impropriety
or
contravention
was
deliberate
or
reckless;
(f)whether
any
other
proceeding
(whether
or
not
in
a
court)
has
been
or
is
likely
to
be
taken
in
relation
to
the
impropriety
or
contravention;
and
(g)the
difficulty,
if
any,
of
obtaining
the
evidence
without
impropriety
or
contravention
of
law.
• Section
30
&31
EA
does
not
bring
Nigeria
with
the
UN
Convention
against
torture
• A
retraction
of
a
statement
is
different
from
an
allegation
that
the
statement
was
made
contrary
to
section
29
E.A.
where
accused
retracts
the
statement;
the
CT
may
admit
the
statement
although
the
CT
may
credit
the
statement
with
less
weight
depending
on
the
other
evidence
in
the
case
(depends
on
circumstances
of
the
case).
CT
will
just
ask
whether
it
is
safe
to
convict
on
such
a
retraction.
Aremu
v
The
State
(1991);
Egbogonomo
v
The
State
Trial
in
trial:
• Trial
within
trial
is
used
to
determine
whether
the
confession
is
in
violation
of
s29.
Olabode
v
State
(2009):
Supreme
CT
held
the
test
for
the
admissibility
of
a
confessional
statement
is
its
voluntariness
and
once
the
issue
is
raised,
it
must
be
resolved
before
its
admission
• Babalolo
Orishade
v
Federal
Republic
of
Nigeria
(2013):
the
prosecution
has
the
burden
of
proving
that
the
statement
was
taken
in
accordance
with
s29
E.A
2011.
Usually
the
investigating
police
officer
who
recorded
the
police
would
be
called
to
testify.
CT
decides
whether
prosecution
has
proved
its
case
beyond
reasonable
doubt
• By
convention,
when
confession,
a
superior
police
officer
will
endorse
that
statement.
So
the
superior
police
officer
will
also
give
evidence.
Ct
held
this
is
not
obligatory
but
a
commendable
practice
Identification
• The
process
of
associating
a
person
with
the
communication
of
a
crime
• Identification
may
be
done
by
visual
recognition,
photographic,
voice,
fingerprint,
identification
parade
etc
• A
witness
who
claims
to
have
known
an
accused
person
before
the
crime
must
link
him
to
the
crime
at
the
earliest
opportunity
and
not
wait
for
identification
parade.
See
case:
Bozin
v
The
State
Identification
parade
• An
ID
parade
shall
be
conducted
promptly:
Adamu
v
The
State
(1991);
Uzoma
v
The
State
(2013)
• The
procedure
is
to
arrange
persons
with
similar
characteristics
for
the
victim
to
pick
out
the
perpetrator
from
among
several
persons.
To
arrange
as
many
persons
as
possible
(at
least
8)
as
the
same
physical
build
for
the
witness
to
pick
out.
Where
there
are
2
suspects,
increase
the
minimum
number
of
persons
to
12.
The
accused
person
must
be
given
the
choice
as
to
where
they
can
stand
in
line
without
the
witness
knowing
this.
• By
convention,
an
ID
parade
should
be
supervised
by
a
superior
police
officer
who
himself
would
not
participate
in
the
actual
exercise
• A
photograph
of
the
line-‐up
ought
to
be
taken
before
the
victim
is
invited
to
identify
the
perpetrator
• The
superior
police
officer
writes
a
report
and
fills
the
requisite
forms
• At
the
end,
the
report
must
be
signed
by
2
officers
i.e.
the
officer
who
makes
the
entries
and
the
officer
who
conducts
the
parade
Handling
of
Exhibit
• There
is
a
list
of
such
exhibits,
called
Exhibit
List
which
chronicles
the
items
seized
from
one
suspect
all
from
different
suspects
in
relation
to
one
case.
Then
there
is
the
Exhibit
Register
where
the
list
of
all
exhibits
in
the
custody
of
the
Police
in
a
particular
Station
or
Division
is
recorded.
The
person
that
keeps
custody
of
all
such
exhibits
is
the
Exhibit
Keeper
and
he
is
in
charge
of
the
Exhibit
Room
where
all
the
items
in
relation
to
cases
handled
are
kept,
and
from
where
they
are
brought
to
Court
during
trial.
• It
should
be
noted
that
not
all
exhibits
are
admissible
in
court.
It
is
only
when
an
exhibit
is
relevant
to
the
case
or
fact
in
issue
that
it
can
be
admissible
and
marked
as
Exhibit
‘A’,
Exhibit
‘B’,
etc
• Exhibits
are
documents
or
physical
objects
discovered
or
recovered
and
relevant
to
an
investigation
• Exhibits
must
be
carefully
handled
to
prevent
contamination
–
to
provide
a
clear
chain
of
custody
• The
chain
of
custody
must
be
documented
and
proved
in
court,
otherwise
the
exhibit
may
be
tainted
• The
proper
procedure
is
to
mark
each
exhibit
and
lodge
it
with
the
exhibit
keeper
• Exhibits
must
be
properly
marked
and
lodged
• The
officer
who
recovers
the
exhibit
will
hand
it
over
to
an
exhibit
keeper
• The
IPO
must
testify
to
when
he
recovered
the
exhibit,
what
was
done
with
or
to
the
exhibit
between
when
it
was
recovered
and
when
it
was
tendered
in
court
How
to
apply
for
assistance
under
the
Legal
Aid
Scheme
S8
Legal
Aid
Act
2011
provides
that
the
Council
shall
provide
legal
aid
in
three
broad
areas,
namely:
Criminal
Defence
Service,
Advice
and
Assistance
in
civil
matters.
Assistance
is
to
indigent
persons
involved
in
criminal
investigation
or
proceedings:
s8(2)
Legal
Aid
Act
2011.
Criteria
for
eligibility
of
legal
aid
Police
bail
• A
person
arrested
must
be
taken
to
Ct
within
24
hours
if
there
is
a
Ct
within
40km
radius.
Where
there
is
no
court
within
such
distance
the
person
shall
be
taken
to
court
within
48
hours
of
arrest
or
such
longer
period
as
in
the
circumstances
may
be
considered
by
the
court
to
be
reasonable:
s35(5)(a)
&(b).
e.g.
where
investigation
cannot
be
completed
within
such
period,
a
court
may
order
the
person
to
be
detained
for
a
longer
period.
• NB:
generally
no
bail
for
armed
robbery
and
capital
offences.
If
the
crime
is
not
a
capital,
the
officer
in
charge
of
the
police
station
or
place
of
detention
may
admit
the
accused
to
bail
on
such
terms
and
conditions
as
may
be
appropriate,
pending
investigation.
Terms
and
conditions
of
police
bail
• It
must
be
entered
upon
recognisance
with
or
without
surety
• The
essence
of
police
bail
is
to
ensure
that
the
accused
enjoys
liberty
while
ensuring
that
he
is
available.
Where
there
is
a
significant
flight
risk,
the
police
is
less
inclined
to
grant
bail
• Bail
is
not
generally
monetary;
may
require
you
to
execute
a
bond
and
other
conditions.
Procedure
for
police
bail
• Bail
may
be
granted
upon
an
application
by
the
suspect
or
his
counsel
• Application
by
counsel
is
made
on
the
letter
head
of
chambers
• The
application
is
addressed
to
the
DPO,
COP,
AIG,
IG
as
the
case
may
be.
At
the
state
level,
the
application
may
also
be
addressed
to
the
ACP
(Assistant
Commissioner
of
Police)
in
charge
of
CID
(Criminal
Investigation
Department)
if
the
COP
permits
Remedies
available
to
a
detainee
who
is
refused
or
denied
police
bail
When
police
refuses
bail:
Another
option
available
to
an
action
person
who
has
been
refused
bail
by
the
Police
is
to
approach
a
Court
to
grant
him
bail.
B)
Habeas
corpus
proceedings:
Writ
of
HABEAS
CORPUS
This
is
a
Latin
word,
which
means
“that
you
have
the
body”.
This
remedy
is
to
secure
the
release
or
liberty
of
the
subject,
whose
right
to
personal
liberty
has
been
lawfully
infringed
on,
and
which
is
better
explained
by
the
more
elaborate
Latin
expression
habeas
corpus
ad
subjiciendum
meaning
a
writ
directed
to
the
person
detaining
another,
and
commanding
him
to
produce
the
body
of
the
prisoner,
or
person
detained.
This
is
the
most
common
form
of
habeas
corpus
which
is
to
test
the
legality
of
the
detention
or
imprisonment,
not
whether
he
is
guilty
or
innocent.
Habeas
corpus
proceedings
are
usually
governed
by
State
Laws
and
an
application
herein
is
made
ex-parte
accompanied
by
a
deposition
on
oath,
stating
the
facts
and
circumstances
of
the
wrongful
detention,
necessitating
the
filing
of
the
application.
It
is
a
very
potent
weapon
for
restoration
of
abridged
and
deprived
fundamental
rights
of
detainees.
In
Alhaji
Manfred
v.
IGP
&
Ors,
the
court
after
a
thorough
consideration
of
the
application,
ordered
the
immediate
release
of
the
applicant
from
detention
as
well
as
the
release
of
his
confiscated
properties
on
the
grounds
that
the
police
lacked
the
power
to
carry
out
his
arrest
without
sufficient
evidence,
and
also
had
no
powers
to
confiscate
his
property
and
personal
effect
without
a
valid
court
order.
C)
In
Lagos
State
and
CPCL
he
may
apply
to
a
magistrate
CT
for
an
order
for
his
production
in
CT
(s77(2)
CPCL).
Note
if
suspect
does
not
fulfil
conditions
of
bail,
he
cannot
just
run
to
CT
to
grant
bail
as
police
will
state
that
bail
has
been
granted
upon
certain
provisions
See
Pg
52-‐53:
Scenario
2:
Agbo
–
role
play
• My
client
withdrew
from
an
ATM.
Do
you
have
the
text
alert
to
prove
it.
He
disabled
it.
Ok,
produce
a
copy
of
the
bank
statement
• Identification
parade:
Imo
v
State
–
people
with
same
physical
aspects
and
a
minimum
of
8
people.
Where
there
are
2
suspects,
increase
the
minimum
number
of
persons
to
12.
The
accused
person
must
be
given
the
choice
as
to
where
they
can
stand
in
line
without
the
witness
knowing
this.
• Alibi:
police
to
investigate.
Was
the
alibi
raised
at
the
earliest
possible
time?
Also
if
they
have
concrete
evidence
of
that
accused
persons
committed
the
crime,
no
need
to
investigate
the
alibi
raised
• Bail:
this
is
an
offence
which
allows
bail
as
not
a
capital
or
serious
offence.
If
the
counsel
makes
the
application,
the
counsel
should
write
the
application
on
his
letter
handed
paper
and
recommend
sureties.
• Right
to
remain
silent
and
counsel
(not
cautioned)
• NB:
some
legal
safeguards
support
the
constitutional
safeguards
Exhibit
• If
the
exhibit
is
perishable,
then
take
photos
of
these
items
and
then
return
the
perishables
to
the
owner.
The
photos
will
be
admissible
in
evidence
in
the
CT
of
law.
Note
the
new
Evidence
Act
2011
on
photographic
evidence
etc
Scope
of
legal
aid
• Legal
Aid
Act
2011
• Section
8
2011
Act:
legal
aid
will
be
allowed
in
cases
of
criminal
defence
service,
advice
and
assistance
in
certain
civil
matters
(e.g.
murder/culpable
homicide
punishable
by
death
etc);
assistance
to
indigent
persons
involved
in
criminal
investigation
or
proceedings
(s8(2))
….
Representation
at
the
police
station
and
in
court,
mediation,
legal
counselling,
financial
and
welfare
assistance
for
women
and
children,
rehabilitation
back
to
society
etc
• Section
10:
who
can
apply
for
legal
aid:
below
the
minimum
wage
(should
be
about
N18,000);
suspect
must
be
an
indigent
person
Constitutionality
of
S27
Terrorism
Prevention
Act:
is
it
justified
in
the
interest
of
public
safety?
Under
the
CPCL,
police
can
approach
a
magistrate
to
hold
a
suspect
for
a
longer
time
if
they
cannot
complete
their
investigation
within
24hours.
The
idea
of
s35
is
so
that
people
are
not
held
incommunicado
and
does
not
mean
that
suspects
cannot
be
held
for
longer
than
24hours.
Week
7:
INSTITUTIONS
OF
CRIMINAL
PROCEEDINGS
• Attorney
General
(Chief
Law
Officer):
s150(1)
&
195(1)
CFRN
1999
as
amended
–
power
to
institute
and
undertake
criminal
proceedings,
power
to
take
over
criminal
proceedings
and
discontinue
criminal
proceedings
(he
doesn’t
have
to
give
the
CT
reasons).
The
Constitution
states
that
the
AG
is
to
act
in
the
interest
of
justice:
State
v
Ilori
(1983)
–
this
issue
came
up
as
to
whether
the
AG
must
satisfy
this
requirement
to
enter
a
nolle
prosequi.
In
exercising
this
power
inferred
that
the
Constitution
should
have
the
interest
of
justice
to
exercise
its
powers
but
it
is
not
for
the
CT
to
ask
the
AG
to
satisfy
this
requirement
before
the
CT
(thus
the
AG
is
a
law
until
himself).
Therefore
only
public
opinion
can
be
the
only
check
on
the
powers
of
the
AG.
The
power
of
the
AG
to
enter
nolle
(to
discontinue
at
any
stage
before
judgment).
The
Constitution
does
not
give
the
mode
for
entering
nolle
but
some
other
statutes
have
given
the
procedure:
s73(1)
CPL,
s253
CPCL
(the
AG
goes
to
CT
in
person
and
informs
the
CT
orally
that
he
wants
to
discontinue
or
puts
it
in
writing
and
gives
it
any
law
officer
in
his
department
to
enter
it
into
CT:
CPL
and
CPCL),
71
&
72
ACJL
(the
ACJL
is
silent
as
to
whether
if
the
AG
does
not
appear
in
person,
then
it
can
be
in
writing.
Some
authors
state
that
the
wording
of
ACJL
means
that
both
the
AG
and
his
law
officers
can
go
to
CT
and
discontinue
proceedings
but
in
practice
the
AG
gives
a
written
document
for
law
officer
to
enter
in
CT).
NB:
nolle
prosequi
can
be
entered
when
the
case
is
at
the
trial
CT
and
not
when
the
case
is
on
Appeal.
AG
cannot
enter
nolle
during
the
appeal.
The
power
of
nolle
is
personal
to
the
AG
(AG
Kaduna
State
v
Hassan
(1985))
and
where
there
is
no
sitting
AG,
this
power
cannot
be
exercised
unlike
other
powers
of
the
AG,
which
can
be
exercised
by
law
officers
in
the
AG’s
office
even
where
there
is
no
sitting
AG
and
so
the
Solicitor
General
could
not
exercise
this
power.
The
AG’s
power
to
institute
proceedings
cannot
be
done
in
a
CT
martial.
The
effect
of
a
nolle
prosequi
is
that
the
accused
is
discharged
but
he
can
be
prosecuted
afterwards
with
respect
to
the
same
offence.
AG
Federation
cannot
commence
an
action
where
it
is
purely
based
on
state
law
and
the
same
with
AG
State.
However,
where
the
law
covers
both
federal
and
state
law,
either
AG
State
or
Federation
can
commence
the
action.
Edet
v
State
(1988):
a
case
pending
before
magistrate
CT
and
AG
bypassed
it
(didn’t
terminate
this
case)
and
instituted
a
case
at
the
High
CT.
In
taking
over
the
case,
the
former
case
pending
before
the
CT
need
not
be
concluded
before
the
AG
institutes
a
new
action.
CT
said
this
did
not
amount
to
an
abuse
of
CT
process,
although
the
Supreme
Court
acknowledged
that
it
was
desirable
to
withdraw
the
charge
against
the
accused
persons
at
the
magistrate
court.
AG
need
not
give
reasons
for
decision
to
prosecute
or
not:
Amaefule
v
State.
• Nolle
is
a
discharge
and
not
an
acquittal:
Clarke
v
AG
Lagos
State
• Police:
s23
Police
Act
&
s75
CPL
&
130
CPCL:
prosecute
criminal
cases
in
any
CT
in
Nigeria
(except
CT
martial)
without
the
consent
of
the
AG.
Osahon
v
FRN
(2000):
Police
can
go
as
far
to
the
Supreme
CT.
Contradictory
as
only
legal
practitioners
can
address
the
CT.
However,
the
AG
may
take
over,
continue
or
discontinue
any
such
criminal
cases.
Subject
to
the
leave
of
Ct,
the
police
may
withdraw
criminal
case
brought
to
CT;
s75
CPL,
s73
ACJL
–
a
fine
distinction
btw
these
two
Acts
–
restriction
of
this
power
to
magistrate
CT
in
CPL
but
not
so
in
ACJL.
In
section
75
CPL,
if
the
case
is
withdrawn,
the
police
must
give
reasons
as
they
require
the
leave
of
the
CT
to
withdraw
the
case
(distinct
from
power
of
nolle
of
AG).
If
such
withdrawal
is
made
in
the
course
of
any
enquiry,
the
accused
shall
be
discharged
in
respect
of
such
enquiry.
During
trial,
if
withdrawal
is
before
the
accused
is
called
upon
to
give
his
defence
(effect
is
a
discharge.
If
accused
has
been
called
upon
to
enter
a
defence
(effect
is
an
acquittal)
but
provided
even
where
he
has
not
been
called
upon
to
give
a
defence,
it
could
be
an
acquittal
if
the
magistrate
who
makes
an
order
of
acquittal
feels
that
due
to
the
circumstances
of
the
case
an
acquittal
is
justified.
The
magistrate
must
record
the
reason
for
making
such
an
order
• Private
persons:
s59(1)
&
342
CPL,
143(e)
CPCL
&
s254
ACJL:
may
bring
compliant
to
CT
against
an
offender.
Generally
where
police
or
AG
are
not
wiling
to
bring
a
case
but
still
subject
to
the
powers
of
the
AG
(s59(1),
s342
CPL:
private
person
must
get
an
endorsement
saying
that
the
AG
or
law
officer
has
seen
the
case
and
he
is
not
interested
in
prosecuting
the
case
and
they
must
give
an
undertaking
that
the
private
person
will
prosecute
the
case
diligently
and
to
logically
conclusion.
The
AG
can
brief
a
private
legal
practitioner
to
act
on
his
behalf,
requires
a
fiat
from
the
AG
-‐
Nafiu
Rabiu
v
State
(1980)
SC,
State
v
Gwanto
(1983)
SC.
Private
person
must
apply
for
Fiat
but
in
the
North
no
requirement
for
this).
Under
s143(e)
CPCL
private
person
may
prosecute
without
the
need
to
obtain
consent
of
AG
i.e.
can
compel
the
AG
with
an
order
of
mandamus
(NB:
the
AG
can
then
enter
a
nolle
prosequi).
In
practice,
generally
private
persons
prosecute
for
non-‐indictable
offences.
The
provision
of
342
CPL
is
different
from
that
and
s254a
ACJL
that
a
private
person
must
provided
as
surety
(100
in
CPL
and
10,000
for
Lagos).
A
private
person
can
withdraw
a
case
but
costs
will
be
awarded
against
him.
AG
Anambra
State
v
Nwobodo
–
private
persons
with
AG’s
fiat.
Prosecuting
with
AG’s
fiat
is
prosecuting
for
the
state.
But
where
as
just
a
private
prosecutor,
then
put
your
name.
• Special
Prosecutors;
NDLEA,
Customs
&
Excise
etc:
Acts
setting
them
up
empower
them
to
institute
criminal
proceedings
but
subject
to
AG.
EFCC
and
ICPCL’s
power
is
exercised
under
the
powers
of
the
AG.
This
is
different
from
special
prosecutors
who
prosecute
for
specific
offences
created
by
the
Act
not
under
the
AG
(Factories
Act;
Customs
Management
and
Excise
Act).
• EFCC, ICPCL. S6m, 7(2)nd & 13(2) EFCC Act and s6(1) and 61(1)of the ICPCL Act
o Ehindero
v
FRN
(2014):
a
former
IGP
was
charged
of
mismanagement
of
accounts
and
he
raised
objections
that
ICPCL
cannot
prosecute
him
without
the
consent
of
the
AG.
The
CT
said
the
ICPCL
is
subject
to
powers
of
AG
but
where
the
ICPCL
institute
criminal
proceedings,
the
consent
of
the
AG
is
implied.
What
does
the
CT
mean
by
implied
consent
(is
this
a
presumption
of
regularity:
that
something
that
should
be
done
is
assumed
to
be
done).
Perhaps
the
reason
for
this
is
because
the
ICPCL
is
seen
an
arm
of
the
AG’s
office
o Special
prosecutors:
don’t
have
to
be
lawyers
to
prosecute
and
empowered
by
specific
Acts
to
institute
proceedings:
s66
Factories
Act
which
vest
power
of
prosecution
on
the
Inspector
of
Factories
• Sections
117,
118
and
143(b)
of
the
CPCL.
By
this
method,
a
suspect
arrested
usually
without
a
warrant
is
brought
to
a
Police
station
where
the
Front
Desk
Officer
(FDO)
listens
to
the
complaint
against
him
usually
by
the
Investigating
Police
Officer
(IPO).
If
the
Police
officer,
usually
the
FDO,
is
satisfied
with
the
information
that
a
prosecution
will
serve
public
interest,
he
receives
the
complaint
in
writing
in
the
form
called
“FIR”
which
is
the
First
Information
Report
Form.
If
he
is
not
satisfied,
he
may
refuse
the
information
and
the
alleged
offender
is
released.
• If
the
information
is
received,
the
same
shall
be
read
over
to
the
alleged
offender
who
will,
upon
satisfaction,
sign
it.
The
statement
of
the
offender
may
be
taken
at
this
stage.
Thereafter,
the
suspect
and
the
FIR
are
taken
before
a
Magistrate,
who,
if
satisfied
that
the
allegation
is
well
founded,
would
direct
the
matter
to
the
magistrate
who
has
jurisdiction
in
the
matter
and
if
he
has
jurisdiction,
he
will
continue
–
sections
157
to
160
of
CPCL
Magistrate
CT
in
Lagos
• By
bringing
a
person
arrested
with
or
without
a
warrant
before
the
CT
on
a
charge
contained
in
a
charge
sheet
signed
by
a
law
officer
or
police
officer:
s78(1)
ACJL
High
CT
in
the
South
• (1)
By
information
in
any
of
the
following:
instituting
a
formal
document
through
a
formal
document
called
an
information
(called
a
charge
in
the
North).
Drafting
an
information
is
also
different
from
drafting
a
charge
• a)
By
filling
information
at
the
High
CT
with
the
consent
of
the
High
CT
judge:
s77(b)
CPL,
s340(2)
• b)
Signed
by
any
public
officer
or
person
designated
by
Governor:
s341(2)
• c)
By
exhibiting
an
information
ex-‐officio
by
the
AG
on
simple
offence
• d)
By
information
filed
in
the
Court
after
the
accused
has
been
summarily
committed
for
perjury
by
a
Judge
• e)
By
information
signed
by
a
private
person
• Consent
of
the
High
CT
judge
is
required
to
file
an
information
• (2)
By
laying
a
complaint
before
a
judge
whether
or
not
on
oath.
Does
not
require
consent
but
usually
for
non-‐indictable
offence:
DPP
v
Aluko;
s77(b)
CPL
High
CT
in
the
North
• (1)
By
preferring
a
charge:
s185(b)
CPCL.
After
Leave
of
the
High
CT
judge
has
been
obtained.
Procedure
for
obtaining
leave
is
by
motion
ex
parte
or
an
application
• (2)
By
laying
a
complaint
before
a
High
Ct
judge:
s143(d)
CPCL
• In
Adamawa
and
Taraba
States
criminal
matters
are
commenced
in
the
High
CT
by
way
of
information.
This
is
made
possible
by
reason
of
amended
of
the
CPCL
law
of
these
States
High
CT
in
Lagos
• By
information
in
any
matter
stated
and
consent
is
not
required
in
Lagos:
s77(1)
ACJL
• CPL
does
not
make
express
provision:
see
s363
(resort
to
England)
CPL
• Thus
resort
to
Indictment
(Procedure
Rule)
1971
in
England
• (a)
In
writing
accompanied
by
a
copy
of
the
proposed
charge
or
information
• (b)
An
affidavit
where
applicant
is
not
the
AG
to
the
effect
that
to
the
best
of
the
person’s
knowledge,
information
and
belief
the
statements
contained
in
the
information
are
true
• In
Kano,
where
AG
wants
to
apply
to
prefer
the
charge,
he
does
not
require
consent.
But
his
law
officers
need
the
consent
of
the
High
CT
judge
• (c)
Proof
of
evidence
of
witnesses,
exhibits,
list
of
witnesses
to
be
called
etc
(all
the
evidence
that
you
have
against
the
accused
together
with
a
statement
that
the
evidence
shown
by
the
proofs
will
be
available
at
the
trial
and
that
the
case
disclosed
by
the
proofs
is,
to
the
best
knowledge,
information
and
belief
of
the
applicant,
substantially
a
true
case
• (d)unedited
statement
of
the
accused
person
and
witnesses
• (e)
That
there
had
been
no
committal
proceedings
• (f)
Where
an
application
has
been
previously
made,
this
fact
must
be
disclosed
as
well
as
the
result
of
such
application
• Application
for
leave
to
prefer
a
charge
in
the
North
is
regulated
by
the
Criminal
Procedure
(Application
to
prefer
a
charge
in
the
High
CT)
Rules
1970…..
• In
the
High
Ct
of
FCT,
a
Practice
Direction
2014:
modifies
the
CPCL
Act
of
the
FCT
the
way
to
bring
application
for
leave
to
prefer
a
charge
–
where
making
an
ex
parte
application
seeking
leave,
the
accused
person
must
be
present.
It
is
still
ex
parte
even
though
the
accused
is
present.
Note
there
are
other
modifications
• A
judge
will
satisfy
himself
that
a
prima
facie
case
is
disclosed
before
granting
consent.
Where
consent
is
required
before
filing
an
information
or
preferring
a
charge,
failure
to
obtain
it
nullify
an
proceeding
thereto:
AG
v
Clement
Isong
(1986)
CT
WHAT
AN
ACCUSED
MUST
DO
IF
HE
WANTS
TO
OBJECT
TO
GRANT
OF
LEAVE/CONSENT
• Where
the
accused
feels
the
leave
was
wrongly
granted,
he
may
apply
by
Motion
on
Notice
supported
by
an
affidavit
that
the
Charge
or
information
be
quashed.
The
Motion
should
be
moved
immediately
after
the
Prosecution’s
opening
address
or
before
the
plea
is
taken.
• NB-‐Where
an
application
for
Leave
or
consent
is
not
granted,
a
similar
application
to
other
Judges
in
the
jurisdiction
can
be
made
until
it
is
exhausted
and
a
further
one
made
to
the
Court
of
appeal.
-‐
High
CT,
Lagos
• Prosecutorial
authority
is
exercised
by
the
state
using
the
name:
The
State
of
Lagos
:
s249
ACJL.
The
information
must
contain
the
details
of
the
offence,
dated
and
signed
by
the
law
officer
presenting
it
to
Court
Limitation
of
time
for
instituting
criminal
cases
in
CT
As
a
general
rule,
there
is
no
time
limit
within
which
to
commence
criminal
proceedings
against
an
offender.
In
other
words,
proceedings
may
commence
at
any
time
after
the
commission
of
the
offence.
There
are,
however,
some
statutory
exceptions:
• Military
offences
(after
retirement):
3
months
• All
militate
offences
except
mutiny,
failure
to
supress
mutiny
and
desertion
–
3
years
• Sedition
–
Under
section
52(1)
of
the
Criminal
Code,
proceedings
in
respect
of
sedition
must
be
commenced
within
six
months.
• Treason
and
Treasonable
Felony
–
Under
section
43
of
the
Criminal
Code,
criminal
action
in
respect
of
persons
and
treasonable
felony
must
be
commenced
within
two
years.
• Sexual
offences
under
s218,
221
Criminal
Code
–
2
months.
Persons
under
the
age
of
13
or
between
13-‐16years
who
is
mentally
disabled
(imbecile)
• Offences
under
CEMA
–
Under
section
176(3)
of
the
Customs
and
Excise
Management
Act,
offences
must
be
commenced
within
7
years.
NB:
how
to
do
an
application
for
leave
(North)/consent
(South)
to
prefer
a
charge/
or
file
an
information:
AG
Federation
v
Isong:
must
establish
a
prima
facie
case.
Where
leave/consent
is
required
and
it
is
not
obtained,
the
trial
is
a
nullity
(so
fatal
to
the
trial).
Different
methods
of
drafting
this
application
(in
the
North
and
the
most
used
is
way
of
motion
ex
parte
supported
by
an
affidavit).
Must
have
enough
evidence
against
a
person
before
the
CT
will
allow
you
to
file
a
charge.
In
the
affidavit,
state
the
offence
and
state
that
you
are
attaching
the
proposed
charge
sheet
as
EXHIBIT
A,
state
you
are
attaching
the
proof
of
evidence
(summary
of
your
evidence:
that
X
was
seen
by
eye
witnesses
stabbing
the
person,
the
list
of
witnesses,
that
the
knife
used
to
stab
the
person
is
with
the
police,
medical
report
that
the
stab
wound
caused
the
death,
state
that
it
is
the
first
time
you
are
making
the
application
as
it
is
the
only
procedure
where
if
the
application
is
taken
by
a
judge
and
he
refuses
to
grant
leave/consent,
the
application
can
be
taken
to
another
judge
of
coordinate
jurisdiction:
a
unique/special
procedure
as
you
don’t
have
to
go
on
appeal
when
the
application
is
refused
the
first
time
or
state
that
you
have
previously
filed
the
application
in
Court
1
and
the
judge
refused
to
grant
the
application)
-‐
Gali
v
The
State
(1974).
Here
only
photocopies
of
these
exhibits
are
attached
and
as
an
ex
parte
application,
the
accused
is
not
present
and
it
is
generally
done
in
Chambers.
Held
in
State
v
Abacha:
leave
can
be
obtained
by
way
of
letter
asking
for
consent
addressed
to
high
CY
judge
or
by
motion
ex
parte
or
by
way
of
recital
(whereas
the
person
was
arrested
on,
state
all
the
other
facts.
NB:
no
consent
is
required
in
the
Federal
High
CT
but
leave
required
in
the
State
High
CT.
Motion
ex
parte
is
preferred.
SAMPLE
APPLICATIONS
Ndu
Gabriella
Director
of
Public
Prosecution
Ministry
of
Justice,
Lagos
State.
11th
January,
2014
The
Chief
Judge
of
Lagos
State,
Hon.
Justice
XYZ,
Delta
State
Judiciary,
Asaba
–
Delta
State.
My
Lord,
APPLICATION
FOR
CONSENT
TO
FILE
AN
INFORMATION
I
am
the
Director
of
Public
Prosecution
in
the
Lagos
State
Ministry
of
Justice
and
I
hereby
apply
for
consent
to
file
an
information
on
a
charge
of
stealing
against
one
Mr
AGD
Investigation
into
the
case
has
been
concluded
and
all
the
witnesses
that
the
prosecution
intends
to
call
in
proof
of
its
case
are
available.
Attached
to
this
application
are
the
following
documents:
1. A
copy
of
the
proposed
Information;
2. The
unedited
statement
of
the
alleged
offender;
3. The
proof
of
evidence;
and
4. List
of
Exhibits
to
be
relied
upon.
This
application
is
made
on
behalf
of
the
Attorney
General
of
Delta
State.
No
previous
application
for
consent
has
been
made
and
I
have
utmost
belief
in
the
case
against
the
alleged
offender.
NB-‐
P.343(CRIMINAL
LIT
PAST
QUESTIONS)-‐
variation(where
a
previous
application
was
refused
by
another
judge).
Yours
faithfully,
Ndu
Gabriella
Director
of
public
prosecution
IN
THE
HIGH
COURT
OF
BORNO
STATE
IN
THE
BORNO
JUDICIAL
DIVISION
HOLDEN
AT
BORNO
CASE
NO:……
BETWEEN:
THE
STATE
…………………..
COMPLAINANT/
APPLICANT
VS.
XYZ…………..
ACCUSED
PERSONS
MOTION
EX-PARTE
BROUGHT
PURSUANT
TO
SECTION
185(B)
OF
THE
CRIMINAL
PROCEDURE
CODE
AND
RULE
3(1)AND(2)
OF
THE
CRIMINAL
PROCEDURE(APPLICATION
FOR
LEAVE
TO
PREFER
CHARGE
)RULES
1970
AND
UNDER
THE
INHERENT
JURISDICTION
OF
THIS
COURT
TAKE
NOTICE
that
this
Honourable
Court
will
be
moved
on
the
………
day
of
………..
2014
at
the
Hour
of
9O’Clock
in
the
forenoon
or
so
soon
thereafter
on
the
application
of
the
complainant
on
behalf
of
the
State
praying
for
the
following:
1.AN
ORDER
granting
leave
to
prefer
a
Charge
of
Stealing
against
the
accused
persons
in
the
forms
and
terms
of
the
proposed
charge
sheet
hereby
exhibited
as
“annexure
A
2.
AND
FOR
SUCH
ORDERS
OR
FURTHER
ORDER
as
this
Honourable
Court
may
deem
fit
to
make
in
the
circumstances
DATED
THIS
……….
DAY
OF
……..2014
………………………….
GABRIELLA
NDU
DIRECTOR
OF
PUBLIC
PROSECUTION
MINISTRY
OF
JUSTICE,
BORNOSTATE.
FOR:ATTORNEY
GENERAL,
BORNO
STTE
NB-‐
WHEN
DOING
THE
MOTION
EXPARTE
FOR
CONSENT
IN
THE
SOUTH-‐
BRING
IT
UNDER
THE
S.363
OF
CPL
AND
THE
INDICTMENTS
PROCEDURE
RULES
1970.
xxxxxxxxx…………………………………………………………………………………………………
Also
don’t
forget
that
affidavit
is
required.
IN
THE
HIGH
COURT
OF
KWARA
STATE
IN
THE
ILORIN
JUDICIAL
DIVISION
HOLDEN
AT
ILORIN
CASE
NO:
KW/IL/02/07
BETWEEN:
THE
STATE……………………………………………..COMPLAINANT
AND
BUBA
SULE…………………………………………………….ACCUSED
APPLICATION
FOR
LEAVE
TO
PREFER
A
CHARGE
IN
THE
HIGH
COURT
UNDER
SECTION
185
(b)
OF
THE
CRIMINAL
PROCEDURE
CODE
AND
RULE
3
(1)
AND
(2)
OF
THE
CRIMINAL
PROCEDURE
(APPLICATION
FOR
LEAVE
TO
PREFER
A
CHARGE
IN
THE
HIGH
COURT)
RULES,
1970.
WHEREAS:
1. The
above
named
accused
person
was
arrested
for
the
offence
of
culpable
homicide
punishable
with
death
under
Section
221
of
the
Penal
Code.
2. There
is
sufficient
evidence
to
justify
the
accused
person
being
put
on
trial
for
the
said
offence.
3. There
has
been
no
previous
application
made
to
this
court
under
Section
185
(b)
of
the
Criminal
Procedure
Code
or
any
other
proceedings
under
Chapter
xvii
of
the
same
Criminal
Procedure
Code.
4. It
is
desirable
to
prefer
this
charge
without
first
holding
a
Preliminary
Inquiry
to
expedite
the
trial
of
the
accused
person
and
avoid
the
delay
necessarily
involved
in
the
interest
of
justice.
5. The
application
is
accompanied
by
the
proof
of
evidence
of
the
witnesses
the
prosecution
intends
to
call
in
support
of
the
charge
at
the
trial
of
this
case.
6. The
case
disclosed
by
the
proof
of
evidence
is
to
the
best
of
my
knowledge,
information
and
belief,
a
true
case.
7. This
application
is
made
on
behalf
of
the
Attorney
–General
of
Kwara
State
of
Nigeria
by
virtue
of
Section
7
of
the
Criminal
Procedure
Code
Law.
NOW
THEREFORE,
I
Ndu
Gabriella,
the
Director
of
Public
Prosecutions
in
the
Kwara
State
Ministry
of
Justice,
Ilorin
do
hereby
apply
for
leave
of
the
Honourable
court
to
prefer
the
following
charge
against
the
accused
person.
DATED
THIS…………………..DAY
OF……………………………..2014.
………………………….
NDU
GABRIELLA.
DIRECTOR
OF
PUBLIC
PROSECUTIONS
KWARA
STATE
MINISTRY
OF
JUSTICE
WEEK
8:
CHARGES
–
important
for
exams
MEANING
OF
CHARGE
Every
person
who
is
charged
with
a
criminal
offence
shall
be
entitled
to
be
informed
promptly
in
language
he
understands
and
in
detail
the
nature
of
the
offence:
Section
36(6)(a)
CFRN;
Timothy
v
FRN
(2008)
All
FWLR
(pt
402)
1136.
The
main
purpose
of
charge
is
to
give
accused
notice
of
the
case
against
him:
Odeh
v
FRN
(2008)
FWLR
(Pt
424)
1590.
Section
2(1)
of
the
Criminal
Procedure
Act
(CPL)
defines
a
charge
as
the
statement
of
offence
or
statements
of
offences
with
which
an
accused
is
charged
in
a
summary
trial,
before
a
court.
The
Criminal
Procedure
Code
(CPCL)
on
its
part
does
not
define
a
charge
in
any
section
but
rather
prescribes
the
form
for
charges
in
Section
200.
The
definition
of
charges
under
the
CPL
as
has
been
argued,
and
rightly
too,
is
defective
for
two
major
reasons.
One,
the
definition
of
charges
in
Section
2
(1)
CPL
as
relating
only
to
summary
trials
is
misleading
as
charges
also
relate
to
trials
by
information.
Even
the
CPL
itself
in
Sections
339
as
well
as
the
prescribes
forms
contained
in
the
schedule
to
the
Act,
make
charges
applicable
to
trials
by
Information.
Accordingly,
Section
375
of
the
ACJL
Lagos
defines
charge
as
the
statement
of
offence
or
statements
of
offences
with
which
an
accused
is
charged
in
a
trial
whether
by
way
of
summary
trial,
or
by
way
of
trial
by
information
before
a
High
Court
or
any
court
or
tribunal
established
by
law.
Secondly,
the
definition
of
charge
as
relating
only
to
statement(s)
of
offences
accords
only
with
the
provisions
of
Sections
156
&
304(2)
of
the
CPL
as
well
as
the
definition
of
charge
given
in
Edun
v
Inspector
General
of
Police
(1966)
1
All
NLR
17
as
a
“count
of
accusation
of
an
offence.”
A
charge
certainly
means
more
than
that.
A
charge
also
means
the
document
in
which
the
offences
with
which
a
person
is
charged
are
contained.
This
latter
definition,
upheld
by
the
Courts
in
Adegbite
v
COP
(1965)
NMLR
432
as
well
as
Edun
v
Inspector
General
of
Police
(supra)
also
accords
the
generally
accepted
usage
of
the
term
charge.
This
explains
why
text
book
writers
list
the
contents
of
a
charge
to
include
heading,
reference
number,
parties,
preamble,
the
count
(charge)
etc.
As
the
Supreme
Court
held
in
Edun
v
Inspector
General
of
Police
(supra):
Charge
in
the
CPL
may
mean,
as
in
Sections
162
and
163
the
whole
document
which
may
contain
one
or
more
counts
of
accusation,
or
merely,
as
in
Section
156,
a
count
of
accusation.
This
document
containing
the
offences
with
which
an
accused
is
charged
is
more
commonly
called
charge
sheet.
If
an
offence
began
in
one
State
and
was
completed
in
State
B,
both
States
High
Courts
have
jurisdiction
over
the
offence.
See
HARUNA
V.
THE
STATE
and
PATRICK
NJOVENS
V.
THE
STATE.
FORMS
AND
CONTENTS
OF
CHARGES
(CHARGE
SHEETS)
Section
150
of
the
CPL
prescribes
the
form
of
charges
in
the
following
words
“charges
may
be
as
in
the
form
set
out
in
the
second
schedule
to
this
Act
and
may
be
modified
in
such
respects
as
may
be
necessary
to
adapt
them
to
the
circumstances
of
each
case”.
The
equivalent
provision
of
the
CPCL
containing
basically
similar
words
is
Section
200
of
CPCL
while
that
of
the
ACJL
is
in
Section
146.
The
salient
point
to
note
in
all
the
provisions
is
that
the
forms
are
not
sacrosanct,
as
the
laws
each
provide
that
necessary
modifications
are
permissible
to
adapt
them
to
the
peculiar
circumstances
of
each
case.
Generally,
charge
sheets
take
different
forms
depending
on
different
factors.
Firstly,
whether
it
contains
a
charge
drafted
under
the
provisions
of
the
CPL
or
CPCL,
and
secondly,
whether
it
is
a
charge
in
the
Magistrates’
Court,
the
Federal
High
Court,
the
State
High
Court
in
Northern
Nigeria
or
an
information
in
the
State
High
Court
in
Southern
Nigeria.
In
the
High
Court
in
the
South,
it
is
referred
to
as
an
information
(also
in
Adamawa
and
Taraba
states)
–
NB
information
is
also
a
charge.
In
the
magistrate
court
in
the
South
and
the
courts
in
the
North,
the
Federal
High
Court
and
National
Industrial
Court,
it
is
referred
to
as
a
charge.
Police
draft
charges
in
the
magistrate
court
in
the
South,
in
the
North
the
magistrate
drafts
the
charges.
Introductory
part
is
required
in
the
North.
There
is
usually
3
paragraphs
in
the
magistrate
Court
in
the
North
(introduction,
body
of
the
charge
and
the
direction:
s160(1)
CPCL:
magistrate
in
the
Court
drafts
and
signs
the
charge).
The
3
paragraphs
is
not
applicable
in
the
High
Court
in
the
North.
In
the
High
Court
in
the
North,
it
is
just
one
paragraph
(section
200
&
201
CPCL)
In
the
magistrate
court
in
the
South,
it
is
just
the
body
of
the
charge
(no
need
for
introduction).
Same
applies
to
FHC,
NIC
Every
head
of
offence
is
referred
to
as
a
count
in
the
South
and
a
charge
in
the
North.
Where
head
of
offence
contains
more
than
one
count/charge,
it
must
be
numbered
serially.
However,
in
the
High
CT
in
the
South,
there
are
2
paragraphs
(section
337
&
338
CPL,
251
ACJL:
statement
of
offence
and
particulars
of
offence
–
2nd
and
3rd
schedule
CPL).
In
the
FHC
and
NIC
and
High
Ct
in
the
North
only
one
paragraph.
Note:
for
Federal
High
CT,
it
is
the
CPL
that
is
applicable.
For
High
Ct
of
the
FCT,
it
is
the
CPCL
Act
that
is
applicable.
The
forms
are:
1) Heading;
2) Reference
number;
3) Parties;
4) Preamble;
5) Counts
(charges);
and
6) Date
and
Signature
of
the
drafting
authority.
1)
HEADING
The
charge
sheet
is
headed
by
the
name
of
the
court
where
the
trial
of
the
accused
is
to
take
place.
The
heading
will
also
indicate
the
State
where
the
trial
will
take
place
and
the
Magisterial
district
or
Judicial
division
where
the
case
is
to
be
tried.
Section
337
of
the
CPL
provides
that
every
information
shall
bear
a
heading
whilst
there
is
no
such
provision
in
the
CPCL.
But
the
same
procedures
apply.
It
is
called
“judicial
division”
in
High
Courts,
and
“magisterial
districts”
in
Magistrates’
Courts.
2)
REFERENCE
NUMBER
The
charge
sheet
bears
a
charge
number
or
case
number
also
known
as
reference
number.
Charge
numbers
are
used
in
the
Southern
states
while
case
numbers
are
used
in
the
Northern
states.
The
charge
or
case
number
as
the
case
may
be
is
stated
at
the
top
right
hand
corner
of
the
charge
sheet
immediately
after
the
heading.
3)
PARTIES
In
criminal
proceedings,
the
victim
of
a
crime
is
not
a
party
in
the
proceedings,
except
as
a
witness,
for
example,
in
a
case
between
“The
State
and
XYZ”,
the
State
is
the
complainant
while
the
offender
is
the
defendant
or
accused
person.
This
is
because
a
crime
is
a
violation
of
the
laws
of
the
State
made
for
security,
order,
and
good
government
of
the
society.
In
Lagos
State,
it
is
The
State
of
Lagos
It
should
be
noted
that
Section
1
of
CPL
uses
the
expression
“defendant”
to
mean
any
person
against
whom
a
complaint
of
a
criminal
nature
is
made
while
section
1
of
the
CPCL
uses
the
expression
“accused
person”
to
define
persons
who
are
charged
with
the
commission
of
a
crime,
arrested
persons
and
persons
who
are
the
subject
of
a
complaint
or
First
Information
Report
(FIR).
Any
of
the
two
may
be
used
but
whichever
one
uses
first
must
be
used
consistently.
In
Magistrates’
Courts,
State
is
represented
by
the
Commissioner
of
Police
(C.O.P.)
in
a
complaint
while
in
the
High
Courts,
the
Attorney-‐General
is
represented
as
State,
and
in
Federal
High
Courts,
Attorney-‐General
of
the
Federation
is
represented
as
the
Federal
Republic
of
Nigeria.
4)
PREAMBLE
The
requirement
in
this
stage
does
not
apply
to
all
charges.
Thus
the
following
can
be
distinguished:
The
information
as
applicable
to
the
High
Courts
in
the
Southern
States:
Criminal
proceedings
are
commenced
by
way
of
information
which
is
usually
filed
by
the
Attorney-‐General
of
the
Federation
in
cases
of
violations
of
Federal
laws
and
States
Attorneys-‐General
in
cases
of
State
laws
–
section
174
&
211
of
199
Constitution.
ii. Each
allegation
of
offence
is
stated
in
two
paragraphs
namely:
this
should
be
done
separately
for
each
count.
A. STATEMENT
OF
OFFENCE:
offence
as
named
by
the
law,
the
relevant
law
and
the
law
it
contravenes
(stealing
contrary
to
section…..
Criminal
Code,
Laws
of
Ondo
State).
As
a
general
rule,
for
an
information,
contrary
to
and
not
punishably
by.
However,
it
is
still
the
punishment
section
and
not
the
description
section
that
is
used
B. PARTICULARS
OF
OFFENCE:
the
other
things
that
gives
the
defendant
the
total
information:
(name
of
the
accused,
alias
is
permitted
but
not
mandatory
date
of
commission
of
offence,
place
of
commission
of
offence,
the
person
against
whom
offence
is
committed,
the
property
etc)
These
two
paragraphs
make
each
count
of
an
alleged
offence.
Every
other
succeeding
count
of
alleged
offence
must
be
stated
in
two
similar
paragraphs
of
statement
of
offence
and
particulars
of
offence.
The
charge
as
preferred
in
the
High
Courts
in
the
Northern
States:
This
is
done
by
virtue
of
Section
185(b)
of
the
CPCL
(but
charges
are
filed
by
way
of
information
in
Taraba
and
Adamawa
States
–
The
CPCL
(Amendment)
Edict
No.
8
of
1986,
Gongola
State).
The
charges
are
usually
filed
by
the
A-‐G
of
the
Federation
in
cases
of
violations
of
Federal
laws
and
States
A-‐G
in
cases
of
violations
of
State
laws.
The
alleged
charges
are
then
set
out
in
single
paragraphs
for
each
count.
Here,
no
statement
of
offence
and
particulars
of
offence.
There
is
also
no
preamble.
NB:
in
the
Federal
High
Court,
FCT;
the
parties
is
the
Federal
Republic
of
Nigeria
v
…..
in
other
states,
The
State
is
used.
Signed
by
the
law
officer
of
AG
of
the
Federation
or
law
officer
for
the
AG
of
the
state
respectively
The
charge
as
filed
in
the
Federal
High
Courts:
Criminal
trials
in
such
courts
are
summary
trials.
The
charges
are
filed
by
the
A-‐G
of
the
Federation
or
by
law
officers
in
his
department
on
his
behalf.
The
charge
sheet
does
not
have
a
preamble,
immediately
after
the
parties
are
named,
the
alleged
offences
are
then
set
out
in
single
paragraphs
for
each
count.
The
charge
as
preferred
in
the
Magistrates
Courts
in
Northern
States:
Under
Section
160
of
the
CPCL,
the
Magistrate
drafts
charges
after
taking
evidence
from
the
prosecution
–
Haruna
v.
Borno
Native
Authority
(1967)
NNLR
19.
The
charge
sheets
used
for
trials
at
Magistrates
Courts
in
Northern
States
has
three
parts
namely:
i. The
introductory
part
The
charge
as
preferred
in
the
Magistrates
Courts
in
Southern
States:
In
such
courts,
this
does
not
commence
with
a
preamble.
After
stating
the
names
of
the
parties,
the
alleged
offences
are
then
set
out
in
a
single
paragraph
for
each
count.
5)
COUNTS
This
is
the
main
part
of
the
Charge
Sheet
and
contains
the
counts.
CONTENTS
OF
A
CHARGE
(COUNT)
A
charge
must
contain
the
following
particulars:
ADPOPSS
a) Name
of
the
accused
persons;
A
The
charge
is
to
contain
particulars
of
time
–
section
152(1)
CPL;
and
section
202
CPCL.
The
date
the
offence
was
committed
must
be
stated
if
it
is
of
essence
in
proving
the
offence
–
section
152(2)
CPL.
Charge
need
not
contain
the
exact
date
in
which
the
offence
was
committed,
it
is
sufficient
if
the
charge
states
on
or
about
a
particular
date
but
it
should
be
as
near
as
possible.
In
Duru
v.
Police
(1960)
LLR
130,
the
accused
person
was
charged
with
receiving
gratification
on
or
about
3
May
1960.
The
evidence
adduced
in
the
trial
showed
that
the
offence
was
committed
between
5
and
7
May
1960.
The
Magistrate
amended
the
date
and
the
accused
was
convicted.
On
appeal
against
conviction,
the
court
held
that
the
amendment
was
unnecessary
because
the
accused
persons
could
have
been
convicted
on
the
charge
as
earlier
framed;
that
the
exact
date
on
which
an
offence
was
allegedly
committed
must
not
be
stated
in
the
charge;
and
that
the
provision
of
Section
163
of
the
CPL
permits
the
amendment
of
a
charge
even
on
the
day
reserved
for
judgment.
Any
doubt
as
to
the
precise
or
exact
date
on
which
an
alleged
offence
was
committed
may
be
resolved
by
the
use
of
the
expression
“on
or
about”
in
stating
the
date.
For
example,
on
or
about
7th
of
December
2009.
Also,
when
time
is
an
element
of
an
offence,
a
count
must
indicate
the
time
the
offence
was
allegedly
committed.
For
example,
in
the
offences
of
house
breaking,
and
burglary.
The
time
of
commission
of
the
alleged
offence
is
a
vital
element,
which
distinguishes
the
offence
of
housebreaking
from
burglary
(the
difference
between
A.
M
–
day,
and
P.
M
–
evening).
Also
can
use
between
certain
periods.
However,
a
count
that
uses
words
different
from
the
exact
words
used
by
the
law
is
not
unlawful.
Provided
that
the
accused
person
is
not
misled
by
the
different
words
used
in
the
count
–
Asuquo
v.
The
State
(1967)
1
All
NLR
123;
Mgbemene
v.
Inspector-General
of
Police
(1963)
2
SCNLR
261.
In
Ogbodu
v.
The
State
(1987)
2
NWLR
(Pt.
54)
20,
the
accused
was
charged
with
murder
but
the
particulars
of
the
offence
stated
that
the
accused
unlawfully
killed
the
deceased.
The
accused
was
convicted,
on
appeal,
it
was
contended
inter
alia
that
the
charge
was
defective
because
the
particulars
of
offence
stated
that
the
accused
‘unlawfully
killed’
the
deceased
instead
of
stating
that
the
accused
‘murdered’
the
deceased.
The
Supreme
Court
rejected
the
contention
and
held
that
although
the
precedents
in
the
Third
Schedule
to
the
CPL
employs
the
word
‘murdered’
instead
of
‘unlawfully
killed’
for
its
precedent
charge
for
murder,
nonetheless
it
is
permissible
to
use
the
expression
‘unlawfully
killed’
instead
of
‘murder’,
because
the
former
expression
encompasses
both
murder
and
manslaughter
by
virtue
of
section
315
of
the
Criminal
Code.
The
court
concluded
that
the
charge
was
not
defective
and
that
the
appellant
was
not
misled
because
he
knew
he
was
being
tried
for
murder
and
he
defended
a
charge
of
murder.
The
appeal
was
dismissed.
The
offence
must
be
stated
in
very
clear
terms.
Charge
must
therefore
disclose
the
essential
ingredients
of
the
offence:
Timothy
v
FRN
(supra).
NAME
OF
THE
PERSON
AND/OR
THING
AGAINST
WHOM
OR
IN
RESPECT
OF
WHICH
OFFENCE
WAS
COMMITTED
The
law
requires
that
the
name
of
the
person
if
any
and
or
the
thing
if
any
against
which
the
offence
was
committed
should
state
as
are
reasonably
sufficient
to
give
the
accused
notice
of
the
matter
with
which
he
is
charged
–
Sections
202
CPCL
and
152(1)
CPL.
The
person
allegedly
offended
is
the
real
complainant
and
his
name
appears
in
the
body
of
the
charge
sheet.
The
C.O.P
or
the
State,
depending
on
where
the
prosecution
is
being
initiated,
is,
by
legal
fiction,
the
complainant,
whose
name
appears
in
the
title
of
the
charge
sheet.
Important
to
state
what
is
stolen
or
who
it
is
stolen
from
because
if
you
steal
from
your
employer,
the
punishment
is
different
from
just
stealing
(e.g.
not
charged
under
390
but
390(6)
Criminal
Code).
Punishment
different
if
you
steal
a
will,
public
document
etc).
The
name
of
the
thing
in
respect
of
which
the
offence
was
committed
must
also
be
stated
in
the
charge.
For
example,
for
the
offence
of
malicious
damage
to
property,
the
property
alleged
to
have
been
maliciously
damaged
must
be
clearly
stated.
Also
include
the
weapon
used.
For
the
offence
of
stealing,
the
thing
allegedly
stolen
must
be
clearly
stated
in
the
charge
sheet.
It
is
permissible
but
not
mandatory
to
state
in
the
charge
the
value
of
the
thing
allegedly
stolen
and
the
owner
of
the
thing
allegedly
stolen
–
Section
154(1)
CPL.
In
Fashola
v.
Inspector-General
of
Police
(1958)
LLR
53,
the
accused
persons
were
charged
inter
alia
with
stealing.
The
name
of
the
owner
of
the
lorry
allegedly
stolen
was
not
stated
in
the
charge.
The
accused
were
convicted
on
the
charge
of
stealing.
On
appeal
against
conviction
it
was
contended
that
the
charge
was
defective
because
it
did
not
contain
the
name
of
the
owner
of
the
property
alleged
to
have
been
stolen.
The
Court
held
that
by
virtue
of
section
154(1)
CPL,
it
was
unnecessary
to
state
the
owner
of
the
property,
except
where
the
property
was
subject
to
special
ownership.
The
appeal
was
thus
dismissed
because
the
property
was
not
subject
to
special
ownership.
In
Adewusi
v.
R
(1963)
1
All
NLR
316,
the
Supreme
Court
stated
that
except
where
required
for
the
purpose
of
describing
an
offence
depending
on
any
special
ownership
of
property,
the
owner
of
the
thing
allegedly
stolen
need
not
be
stated
in
the
charge
sheet.
However,
where
the
owner
is
known,
it
is
more
satisfactory
if
he
is
named
as
such
in
the
charge,
and
if
he
is
not
known,
the
charge
should
describe
what
was
stolen
as
property
of
persons
unknown.
Where
the
prosecution
intends
the
court
to
impose
a
stiff
punishment
because
of
the
value
of
the
thing
stolen
or
the
relationship
between
the
accused
and
the
owner
of
the
property,
such
value
or
relationship
must
be
stated
in
the
charge
sheet
–
section
152(4)
CPL;
R
v.
Eson
11
NLR
29.
THE
WRITTEN
LAW
AND
SECTION
OF
THE
LAW
AGAINST
WHICH
THE
OFFENCE
IS
SAID
TO
HAVE
BEEN
COMMITTED
An
accused
can
only
be
charged
under
a
law
which
creates
and
prescribed
punishment
for
the
offence
that
offence
must
be
known
to
law.
See
section
36(12)
CFRN;
Aoko
v
Fagbemi;
FRN
v
Ifegwu;
Asake
v
Nigerian
Army
Council:
the
principle
is
also
applicable
in
court
martial;
AGF
v
Isong;
Bode
George
v
FRN
(2014)
All
FWLR
(pt
718)
879.
This
can
be
found
under
Sections
151(3)
CPL
and
201(4)
CPCL;
and
Section
36(12)
of
the
1999
Constitution.
The
constitution
provides
that
no
person
shall
be
charged
with
an
offence
that
is
not
contained
in
a
written
law
and
penalty
thereof
prescribed.
This
is
consistent
with
section
151(3)
CPL,
and
section
201(4)
CPCL
which
both
provides
that
a
charge
must
state
the
written
law
and
the
section
of
it
against
which
the
offence
is
said
to
have
been
committed.
Therefore,
for
every
offence
charged,
there
must
be
a
written
law
creating
that
offence.
The
fact
that
a
charge
has
been
made
shows
that
every
legal
condition
required
by
law
to
constitute
the
offence
charged
was
fulfilled
–
Sections
151(4)
CPL;
and
201(5)
CPCL.
Thus
the
statute
and
section
of
the
statute
contravened
(important
that
both
are
stated).
In
other
charges
except
information,
‘punishable
under
section
…..
Criminal
Code’.
Punishable
is
used
because
it
is
the
punishment
section
and
not
the
description
of
the
offence
section
that
is
used.
NB:
there
are
certain
circumstances
where
the
same
section
defines
and
punishes
the
offence
and
that
section
is
used.
The
problem
is
where
a
section
defines
the
offence
(say
section
50)
and
there
is
no
punishment
but
further
down,
there
is
a
general
punishment
section
(say
section
100:
where
a
punishment
is
not
given,
the
person
is
punished
for….),
then
use
contrary
to
section
50
Criminal
Code
and
punishable
under
section
100
Criminal
Code).
Other
cases
where
section
50
defines
the
offence
but
section
51
gives
the
punishment
for
more
than
one
offence,
then
you
use
both
the
description
and
punishment
section
(contrary
to
section
50
Criminal
Code
and
punishable
under
51
Criminal
Code).
6)
DATE
AND
SIGNATURE
OF
THE
DRAFTING
AUTHORITY
–
The
charge
sheet
must
be
dated
and
signed
by
the
person
who
drafted
it.
Where
the
charge
sheet
is
by
way
of
information,
the
offence
alleged,
the
section
of
the
enactment
creating
the
offence,
and
the
enactment
creating
the
offence
are
constituted
in
a
separate
paragraph.
E.g.
police
officer
signs
if
it
is
magistrate
Ct
in
the
South,
law
officer
in
High
Court;
magistrate
Ct
in
the
North,
it
is
the
magistrate.
Apart
from
the
Attorneys-‐General,
any
other
person
who
drafts
a
charge
must
in
addition
to
charging
it,
state
his
designation
and
state
the
fact
he
is
signing
for
and
on
behalf
of
the
Attorney-‐General.
THE
RULES
OF
DRAFTING
CHARGES
In
Ojegele
&
Ors
v.
The
State
(1998)
2
SCNJ
(Pt.
II)
231,
the
Supreme
Court
cited
with
approval
the
definition
of
a
rule
stated
in
Western
Steel
Works
Ltd
v.
Iron
&
Steel
Workers
Union
(1986)
3
NWLR
(Pt.
30)
617,
where
it
was
stated
that:
“a
rule
is
a
normative
proposition
making
certain
legal
results
depend
upon
the
establishment
of
certain
factual
situations
stipulated
in
the
antecedent
part
of
the
rule.”
The
Blacks
Law
Dictionary,
6th
Edition
defines
it
as,
among
other
things,
is
an
established
standard,
guide
or
regulation.
Rules
therefore
determine
the
outcome
of
the
case
in
which
they
apply.
Some
rules
are
expressly
stated
in
subsidiary
enactments
to
control
and
regulate
certain
stipulated
situations.
For
example,
the
rules
governing
the
procedure
of
courts
on
civil
matters
are
contained
in
the
Civil
Procedure
Rules.
The
rules
governing
the
procedure
to
be
followed
under
the
provisions
of
the
principal
enactments
are
contained
in
the
Criminal
Procedure
Act
Rules
and
the
Criminal
Procedure
Code
Rules.
Thus,
the
rules
governing
the
drafting
of
charges
are:
1. The
rule
against
ambiguity.
2. The
rule
against
duplicity.
c) The
written
law
and
the
section
of
the
written
law
against
which
the
offence
is
said
to
have
been
committed;
d) Particulars
of
the
date
and
place
where
the
offence
was
allegedly
committed;
and
e) The
person
against
whom
or
thing,
if
any,
in
respect
of
which
the
offence
was
committed;
A
charge
is
thus
bad
for
ambiguity
where
the
particulars
are
omitted,
wrongly
stated
or
even
stated
in
a
disorderly
manner.
In
Okeke
v
Inspector
General
of
Police
(1965)
2
All
NLR
81
the
Appellant
was
charged
and
convicted
of
two
offences.
In
the
judgment,
the
trial
Magistrate
stated
that
the
accused
person
was
charged
under
“some
sections
of
the
Criminal
Acts.”
On
appeal,
it
was
contended
that
this
contravened
the
provisions
of
Section
151
(3)
of
the
CPL,
and
that
there
was
no
law
in
existence
known
as
the
Criminal
Acts.
The
contention
was
upheld
and
the
conviction
set
aside.
Also
in
AG
Federation
v
Isong
(1986)
1
QLRN
75
a
charge
framed
was
held
to
be
defective
for
failing
to
state
the
penalty
section
of
the
statute
of
which
the
accused
was
said
to
have
contravened.
AG
Federation
v
Isong:
where
leave/consent
is
required
and
it
is
not
obtained,
the
trial
is
a
nullity
(so
fatal
to
the
trial).
The
effect
of
an
ambiguous
charge
will
always
depend
on
whether
the
ambiguity
was
sufficient
to
mislead
the
accused
person,
to
the
extent
that
he
did
not
know
the
offence
for
which
he
is
being
tried,
that
is,
the
importance
of
this
rule
is
that
the
accused
must
know
clearly
why
he
is
before
the
court.
And
so
because
the
purpose
of
the
rules
is
to
give
an
accused
person
adequate
notice
of
the
charge
against
him,
not
all
defects
or
ambiguities
will
nullify
a
trial.
Sections
166
of
CPL,
and
222
of
CPCL
both
provide
that
no
omissions
or
errors
in
a
charge
shall
be
regarded
as
material
unless
the
accused
person
was
in
fact
misled
by
such
error
or
omission.
Consequently,
in
cases
where
the
errors
or
omissions
are
minor
or
merely
technical,
the
court
has
refrained
from
nullifying
the
charges
only
because
of
the
said
errors
or
omissions.
In
Ogbomor
v.
The
State
(1985)
2
S.
C
289,
the
accused
person
was
charged
before
the
Robbery
and
Firearms
tribunal
with
armed
robbery
contrary
to
the
Robbery
and
Firearms
Act
1970
instead
of
the
Robbery
and
Firearms
(Special
Provisions)
Act
1970.
He
was
convicted.
On
appeal
against
conviction,
it
was
contended
that
the
accused
was
charged
for
an
offence
unknown
to
law
because
there
is
no
statute
known
as
the
Robbery
and
Firearms
Act
1970.
The
Supreme
Court
held
that
mere
mis-description
of
the
Robbery
and
Firearms
Act
1970
was
minor
and
technical
as
the
accused
knew
under
which
statute
he
was
being
tried.
Therefore
the
accused
was
not
prejudiced
by
the
defect
in
the
charge
and
the
appeal
was
dismissed.
In
Osigwe
v
Police
(1966)
NMLR
212
a
charge
was
challenged
to
be
bad
for
ambiguity
because
the
accused
was
charged
under
a
presumably
non
existent
law,
the
Criminal
Code
of
the
Federation
and
Lagos
instead
of
the
Criminal
Code.
On
appeal,
it
was
held
that
the
defect
was
trivial
especially
as
the
appellant
as
well
as
his
legal
practitioner
knew
that
it
was
the
Criminal
Code
that
was
referred
to.
THE
RULE
AGAINST
DUPLICITY
The
second
rule
of
drafting
charges
is
found
in
Sections
156
CPL,
212
CPCL
and
152
ACJL
Lagos.
Section
156
of
the
CPL
for
instance
provides
For
every
distinct
offence
with
which
any
person
is
accused,
there
shall
be
a
separate
charge
and
every
such
charge
shall
be
tried
separately
except
in
such
case
mentioned
in
Sections
157
to
161
of
this
Act.
This
rule
addresses
the
count
in
the
charge
as
in
the
case
of
ambiguity.
Generally,
a
count
in
a
charge
sheet
should
contain
only
one
offence.
Therefore,
the
essence
of
the
rule
is
that
if
a
person
commits
more
offences
than
one,
say
arson,
assault
and
robbery,
as
a
general
rule
he
must
be
charged
for
each
offence
separately
and
must
be
tried
separately
for
each
offence.
Charging
the
person
for
all
three
offences
in
one
count
offends
the
rule
against
duplicity.
If
the
person
is
being
charged
for
murder
of
different
persons,
cannot
charge
him
in
one
count.
Must
have
a
count
for
each
person
killed.
In
Okeke
v
The
Police
10
WACA
363,
the
appellant
was
charged
and
convicted
for
the
offence
of
demanding
and
receiving
contained
in
a
single
count.
On
appeal,
the
West
African
Court
of
Appeal
held
that
demanding
and
receiving
constituted
two
separate
offences
and
should
have
been
properly
charged
in
two
separate
counts,
although
in
the
same
charge
sheet.
Similar
decisions
were
reached
in
Awobotu
v.
The
State
(1976)
5
SC
49;
Adebayo
v.
The
State
(1987)
2
NWLR
468
(Pt.
57).
The
exceptions
to
the
rule
against
duplicity
are:
a) Statutory
Forms:
the
first
exception
to
the
rule
against
duplicity
is
contained
in
Sections
150
&
463
CPL;
200
CPCL,
and
148(1)
ACJL.
These
sections
provide
to
the
effect
that
where
charges
are
drafted
in
accordance
with
the
forms
set
out
in
the
schedule
or
appendix
to
the
CPL
and
CPCL
respectively,
the
charge
would
be
good
despite
the
fact
it
ordinarily
offends
the
rule
against
duplicity
by
joining
two
offences
together
in
one
count.
An
example
of
a
charge
that
joins
two
offences
in
one
count
is
that
found
in
Form
16
in
the
second
schedule
to
the
CPL
where
the
offences
of
housebreaking
and
burglary
were
joined
with
that
of
stealing
where
a
person
entered
into
a
dwelling
house
unlawfully
and
stole
there.
This
was
upheld
in
Willie
John
v.
The
State
(1967)
NMLR
101.
b) General
deficiency
of
money
–
This
exception
is
provided
for
under
Sections
152(2)
CPL;
203
CPCL,
and
148(1)
ACJL.
Section
152
(2)
CPL
for
instance
provides
that
What
this
Section
simply
implies
is
that
where
a
person
is
alleged
with
offences
involving
fraudulent
or
dishonest
dealing
with
property
especially,
money
committed
over
a
period
of
time,
the
monies
so
misappropriated
may
be
summed
up
and
the
person
charged
with
stealing
that
gross
sum
instead
of
charging
him
distinctly
for
each
offence
of
stealing
as
the
prosecution
may
find
it
difficult
if
not
impossible
to
ascertain
exactitude,
the
specific
date
and
time
and
amount
involved
in
each
case.
Such
charge
will
be
good
and
considered
as
an
exception
to
Section
156
CPL.
Although
there
appears
to
be
no
legal
justification,
this
exception
has
been
interpreted
to
relate
to
deficiency
of
money
alone,
and
not
other
properties.
In
R.
v.
Aniemeka
(1961)
1
All
NLR.
43
the
accused
was
charged
with
stealing
59
boxes
of
cigarettes,
stolen
on
53
different
dates.
The
conviction
was
set
aside
on
the
ground
that
the
alleged
offences
being
misappropriation
of
goods
and
not
money,
ought
to
have
in
separate
counts
and
so
the
charge
was
bad
for
duplicity.
And
in
Domingo
v.
R.
(1963)
1
All
NLR
81;
the
charge
against
the
accused
related
to
stealing
several
goods
valued
at
about
N40,000
and
he
was
convicted.
His
appeal
was
allowed
on
the
ground
that
the
charge
being
one
of
stealing
goods,
the
charges
ought
to
have
been
contained
in
separate
counts
and
since
it
was
goods,
not
money,
it
did
not
come
under
the
exception.
In
R.
v.
Nwankwo
(1962)
All
NLR
64,
the
accused
was
convicted
of
stealing
monies
for
which
he
had
issued
a
receipt
in
three
separate
receipt
books.
He
was
charged
with
three
counts
of
stealing,
each
count
containing
the
sum
total
of
the
monies
misappropriated
from
each
of
the
receipt
books,
he
appealed
against
his
conviction,
contending
that
it
was
for
bad
duplicity.
Dismissing
the
appeal,
the
court
held
that
since
the
act
of
the
accused
amounted
to
fraudulent
conversion
of
monies,
the
monies
stolen
in
each
receipt
book
could
be
aggregated
and
contained
in
a
single
count
under
the
exception
of
general
deficiency
of
money
to
the
rule
against
duplicity.
Also
the
money
must
be
in
the
same
currency.
The
charge
must
state
the
date
of
commencement
of
the
offence
and
the
date
when
it
ended.
c) Offences
defined
in
the
alternative
–
This
exception
relates
to
offences
defined
in
the
alternative
and
is
found
in
Sections
154(5)(a)
CPL
and
150(5)(a)
ACJL.
The
exception
is
to
the
effect
that
where
a
statute
creates
an
offence
but
provides
for
the
instances
in
which
the
offences
can
be
committed,
and
there
are
indeed
more
than
one
way
in
which
the
offence
can
be
committed,
any
one
or
more
of
these
ways
may
contained
and
stated
alternatively,
in
a
single
count
and
it
wound
not
offend
the
rule
against
duplicity.
For
example,
Sections
406
Criminal
Code
which
provides
for
the
offence
of
demanding
property
with
menaces
with
intent
to
steal
and
provides
the
different
ways
in
which
the
offence
can
be
committed,
it
is
not
offensive
to
state
the
different
ways
alternatively
in
one
count.
In
Ogenyi
v.
Police
(1957)
NRNLR
140
the
accused
persons
were
charged
with
the
offence
of
assaulting
a
Police
Officer
in
the
execution
of
his
duty
contrary
to
Section
356
(2)
of
the
Criminal
Code.
The
Section
stated
three
alternative
ways
of
committing
the
offence
to
wit,
assault,
resist
or
wilfully
obstruct
the
Police
Officer,
these
three
ways
were
stated
in
one
count
and
the
accused
persons
were
convicted.
On
appeal,
it
was
held
that
the
charge
was
not
bad
for
duplicity.
It
is
also
pertinent
to
contrast
the
above
situation
from
one
where
a
section
contains
more
than
one
offence,
e.g.
Section
98
Criminal
Code,
the
different
offences
should
be
contained
in
different
counts
otherwise,
the
charge
that
would
be
bad
for
duplicity.
d) Identical
offences
committed
in
a
single
transaction
–
Where
an
accused
person
is
alleged
to
have
committed
offences
of
the
same
kind
in
a
single
transaction,
he
may
be
charged
with
the
commission
of
all
offences
in
one
count.
In
C.O.P
v.
Oyewusi
(1952)
WRNLR
281,
the
accused,
a
police
officer
demanded
money
from
five
persons
arrested
in
order
to
cease
prosecution
against
them.
One
of
the
five
persons
arrested
gave
the
accused
money
for
and
on
behalf
of
himself
and
all
the
other
arrested
persons.
The
accused
was
charged
and
convicted
with
the
offences
of
demanding
money
with
menaces
and
official
corruption.
On
appeal,
the
court
held
that
since
the
offences
committed
by
the
appellant
were
identical
offences
committed
in
a
single
transaction,
it
was
permissible
to
lump
them
together
in
a
single
count
of
the
charge,
and
the
appeal
dismissed.
e) Overt
Acts
–
This
applies
to
acts
of
treason
or
treasonable
felony.
These
offences
are
contained
in
Sections
37,
38
and
41
of
the
Criminal
Code
and
410,
411,
and
412
of
the
Penal
Code.
In
drafting
a
charge
for
these
offences,
it
is
permissible
to
contain
in
a
count
all
the
overt
acts
allegedly
done
by
an
accused
person
as
manifestations
of
his
intention
to
commit
treason
or
treasonable
felony.
In
R.
v.
Omisade
(1964)
All
NLR
233,
the
accused
persons
where
charged
inter
alia
with
the
offence
of
treasonable
felony.
All
the
overt
acts
allegedly
done
in
manifestation
of
the
treasonable
felony
by
the
accused
were
contained
in
a
single
count.
Thus,
the
charge
could
contain
that
they
trained
some
men
in
Ghana,
they
were
in
possession
of
explosives
etc.
RULE
AGAINST
MISJOINDER
OF
OFFENCES
The
third
rule
of
drafting
charges
is
the
rule
against
misjoinder
of
offences.
Just
like
the
rule
against
duplicity,
the
rule
finds
expression
in
the
provisions
of
Sections
156
CPL;
212
CPCL
and
152
ACJL.
What
this
rule
envisages
is
that
as
a
general
rule,
for
every
distinct
offence
with
which
a
person
is
accused,
there
must
be
a
separate
charge
contained
in
a
charge
sheet
which
must
be
tried
separately.
For
example,
if
a
person
is
accused
of
committing
the
offence
of
manslaughter,
breach
of
trust
and
rape,
he
must
be
charged
separately
for
each
of
these
offences.
However,
if
the
person
is
charged
for
all
the
offences
in
one
charge
sheet,
the
charge
would
be
bad
for
mis-‐joinder
of
offences
and
would
therefore
be
defective.
Unlike
the
first
two
rules,
this
rule
attaches
to
the
entire
charge
sheet
and
not
the
individual
count.
There
are
however
exceptions
to
this
rule
which
are
contained
in
Sections
157
to
161
CPL;
213
to
216
CPCL
and
153
ACJL.
The
exceptions
are:
a) Offences
committed
within
12
months
–
Section
157
CPL
provides
that
any
person
accused
of
more
than
one
offence,
committed
within
12
months,
may
be
charged
with
or
not
more
than
three
of
such
offences
in
the
same
charge
sheet.
It
is
not
necessary
that
the
three
offences
were
committed
against
the
same
person
or
in
respect
of
the
same
thing
nor
that
the
three
offences
must
be
of
the
same
kind.
See
also
Sections
153(1)
ACJL
and
213
CPCL.
In
Dau
v.
Kano
Native
Authority
(1946)
12
WACA
14,
the
appellant
was
convicted
by
the
Magistrate
Court
Kano
on
seven
charges
of
offences
against
the
Money
Lenders
Ordinance.
The
West
African
Court
of
Appeal
held
that
subject
to
the
limitations
that
the
offences
must
not
exceed
three
in
number,
and
must
be
committed
within
a
period
of
12
months,
the
offences
alleged
against
the
accused
may
be
dissimilar
and
may
be
in
respect
of
the
same
person
or
thing
or
of
different
persons
or
things.
b) Different
offences
committed
in
the
course
of
the
same
transaction
–
all
offences
committed
by
a
person
in
the
course
of
the
same
transaction
may
be
charged
together
in
one
charge
sheet.
This
is
the
thrust
of
Sections
158
CPL;
section
214(1)
CPCL
and
153
(iii)
ACJL.
To
come
within
this
exception,
the
offences
must
be
so
connected
as
to
form
part
of
the
same
transaction.
The
test
of
what
amounts
to
“course
of
the
same
transaction”
was
laid
down
by
the
Supreme
Court
in
Haruna
&
Ors
v.
The
State
(1972)
1
All
NLR
(Pt.
2)
302
at
318
in
the
words
of
Atanda
Fatayi
Williams
JSC
(as
he
then
was)
in
the
following
words:
“whether
two
or
more
acts
constitute
the
‘same
transaction’
depends
on
the
proximity
of
time
and
place,
continuity
of
action,
and
community
of
purpose
or
design
relative
to
the
particular
acts…
Thus,
in
order
to
constitute
one
transaction,
all
the
acts
from
the
very
beginning
should
be
either
in
contemplation
or
should
form
the
component
parts
of
a
whole”.
Thus
the
test
requires
a
consideration
of
three
factors
namely:
- Proximity
of
time
and
place;
or
e) Where
it
is
doubtful
which
of
several
offences,
the
facts
which
can
be
proved
constitute.
Where
it
is
doubtful
which
of
several
offences
has
been
committed,
offences
suspected
by
facts
available
may
be
charged
together
in
alternatives
e.g.
stealing,
criminal
misappropriation,
criminal
breach
of
trust,
receiving
stolen
goods,
obtaining
by
false
pretences
–
Sections
161
CPL;
216
CPCL.
He
may
be:
i. Charged
with
having
committed
all
of
such
offences;
or
ii. Charged with having committed some of such offences, or
iii. Charged
in
the
alternative
with
having
committed
some
one
or
other
of
the
said
offences.
All
the
charges
may
be
contained
in
the
same
charge
sheet
without
violating
the
rule
against
misjoinder
of
offences.
This
is
because
an
accused
cannot
be
punished
twice
for
the
same
act
or
omission
–
Azie
v.
The
State
(1973)
3
SC
149
at
161,
Inspector
General
of
Police
v
Bakare
(1957)
WRNLR
123.
f) Offences
committed
in
any
of
several
occasions
–
When
it
is
doubtful
on
which
occasion
an
offence
has
been
committed,
an
accused
may
be
charged
with
having
committed
an
offence
alternatively
on
one
or
other
of
such
occasions.
Section
215
CPCL.
For
example,
in
the
case
of
burglary
and
stealing
where
it
is
difficult
to
state
what
time
the
offence
was
actually
committed
RULE
AGAINST
MISJOINDER
OF
OFFENDERS
As
a
general
rule,
every
person
who
is
accused
of
an
offence
must
be
charged
and
tried
separately
for
the
offence
alleged
against
him.
For
example,
if
A
is
accused
of
rape,
B
is
accused
of
murder
and
C
is
accused
of
arson,
the
alleged
offenders
A,
B
and
C
must
be
charged
separately
and
tried
separately
for
the
offences
of
rape,
murder
and
arson
respectively
otherwise
the
charge
would
be
a
bad
charge
for
misjoinder
of
offenders.
It
is
immaterial
that
they
did
such
offence
at
the
same
time
and
date
or
in
the
same
place.
There
are
exceptions
to
this
rule
which
are
contained
in
Sections
155
CPL;
221
CPCL
and
151
ACJL.
f) Persons
accused
of
offences
committed
during
a
fight
or
series
of
fights
arising
out
of
another
fight,
and
persons
accused
of
abetting
any
of
these
offences
–
This
is
not
available
under
the
CPL
or
ACJL,
but
it
is
available
under
Section
221(g)
CPCL.
An
alleged
offender
can
only
be
charged
together
with
another
alleged
offender
or
offenders
in
one
charge
sheet
for
an
offence
allegedly
committed
by
them,
if
he
falls
within
any
or
all
of
the
exceptions
to
the
rule
against
misjoinder
of
offenders.
The
names
of
the
alleged
offenders
to
be
tried
jointly
must
appear
in
the
title
of
the
charge
sheet.
Notwithstanding
all
the
above
exceptions
with
respect
to
mis-‐joinder
of
offenders
and
mis-‐
joinder
of
offences,
the
Court
has
a
discretion
considering
the
circumstances
of
the
case
to
order
separate
trials
for
the
accused
person.
Section
213
CPCL
empowers
the
Ct
to
order
separate
trials
for
offences
of
like
character
committed
by
the
same
person.
BREACH
OF
THE
RULE
AGAINST
MISJOINDER
OF
OFFENCES:
If
a
trial
court
enters
a
verdict
of
conviction
on
one
of
the
counts
and
acquits
on
others,
an
appellate
court
may
set
aside
the
conviction.
BREACH
OF
THE
RULE
AGAINST
MISJOINDER
OF
OFFFENDERS:
Where
an
accused
person
requires
a
separate
trial,
the
counsel
shall
apply
for
such
separate
trial
before
the
joint
trial
commences.
Where
a
defendant
fails,
refuses
or
neglects
to
apply
for
separate
trials,
he
will
not
be
heard
to
complain
that
the
court
ought
to
have
ordered
separated
trials.
Therefore
the
trial
shall
not
be
vitiated
unless
there
is
manifest
embarrassment
or
prejudice
to
any
of
the
accused
persons.
In
Mailayi
&
Anor.
v.
The
State
(1968)
1
All
NLR
116,
the
accused
persons
were
charged
and
tried
together
for
culpable
homicide
punishable
with
death,
abetment
and
unlawful
assembly.
They
were
convicted.
They
challenged
their
conviction
on
the
ground
that
the
trial
judge
should
have
ordered
separate
trials.
Their
appeal
was
dismissed.
WEEK
9
CHARGES
(CONTD)
EFFECT
OF
A
DEFECTIVE
CHARGE
Any
defect
in
a
charge
(count)
or
the
entire
charge
sheet
can
be
amended
in
the
course
of
a
trial
at
any
time
before
judgment
is
delivered.
The
Court
is
empowered
to
amend
a
charge
before
judgment
and
this
amendment
may
take
the
form
of
addition,
deletion,
alteration
or
even
substitution.
Uket
v
Federal
Republic
of
Nigeria
(2008)
FWLR
(pt
411)
92;
State
v
Olatunji
(2003)
FWLR
(pt
155)
695.
Section
166
of
the
CPL
provides
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.”
From
the
above
provision,
it
could
be
said
that
the
law
distinguishes
between
firstly,
defects
which
are
material
and
fundamental
and
undoubtedly
have
the
effect
of
misleading
the
accused
in
which
case
the
trial
will
be
set
aside
due
to
the
defective
charge;
and
secondly,
defects
which
are
immaterial
and
trivial
and
ought
not
to
mislead
the
accused,
in
which
case
the
trial
will
not
be
set
aside.
In
other
words,
what
will
determine
whether
the
conviction
will
be
upheld
or
set
aside
is
the
effect
the
defect
had
on
the
accused.
Therefore
if:
a) In
the
trial,
the
accused
was
prejudiced
in
the
conduct
of
his
defence;
or
b) In
the
trial,
the
defect
brought
about
the
conviction
of
the
accused
person;
or
c) In
the
trial,
the
defect
so
affected
the
proceedings
that
they
fall
short
of
the
requirement
that
justice
must
not
only
be
done
but
must
manifestly
be
seen
to
be.
A
conviction
will
be
set
aside
for
miscarriage
of
justice.
However,
if
despite
the
defect
of
the
charge,
the
accused
person
is
not
so
affected
by
the
charge,
then
the
conviction
will
be
upheld
on
appeal.
However,
where
the
defect
in
the
charge
is
an
error
in
stating
the
exact
title
of
the
enactment
alleged
to
have
been
contravened
by
the
accused,
the
defect
is
immaterial
and
the
trial
will
not
be
set
aside.
In
Ogbomor
v.
The
State
(1985)
2
SC
289,
the
accused
was
charged
before
the
Robbery
and
Firearms
tribunal
with
armed
robbery
contrary
to
the
Robbery
and
Firearms
Act
1970.
He
was
convicted.
On
appeal
against
conviction,
it
was
contended
that
the
accused
was
charged
for
an
offence
unknown
to
law
because
there
is
no
statute
known
as
the
Robbery
and
Firearms
Act,
1970.
The
Supreme
Court
rejected
the
counsel’s
contention.
It
held
that
the
offence
of
armed
robbery
is
known
to
law.
It
is
contained
in
both
the
Criminal
Code
and
in
the
Robbery
and
Firearms
(Special
Provisions)
Act
1970.
Thus,
it
held
that
there
was
an
omission
of
the
words
“Special
Provisions”
on
the
face
of
the
charge
but
the
defect
in
the
charge
i.e.
the
mis-‐description
of
the
statute
was
of
a
trivial
and
material
nature,
as
the
accused
knew
under
which
statute
he
was
being
tried.
Therefore,
the
accused
was
not
prejudiced
by
the
defect
in
the
charge
and
the
appeal
was
dismissed.
It
should
be
noted
that
once
a
charge
discloses
an
offence
known
to
law,
any
defect
in
the
charge
shall
not
render
it
bad
in
law
except
the
accused
person
was
misled
by
the
defect
in
the
conduct
of
his
defence
–
Ijeoma
v.
R.
(1962)
2
SCNLR
157;
Obumselu
v.
C.
O.
P
(1958)
SCNLR
464.
AMENDMENT
OF
DEFECTIVE
CHARGES
A
defective
charge
is
one
that
runs
short
of
the
principles/rules
of
drafting.
That
is,
it
does
not
comply
with
any
of
the
rules
of
drafting
charges.
A
trial
on
a
defective
charge
does
not
render
the
trial
void
rather
the
court
considers
the
effect
of
the
defective
nature
of
the
charge
on
the
accused.
This
may
take
various
forms
e.g.
deletion
of
errors,
addition
or
inclusion
of
essential
particulars
that
were
advertently
omitted,
substitution
of
a
correct
section
of
the
law
for
one
incorrectly
stated,
etc.
Uket
v
Federal
Republic
of
Nigeria
(supra);
State
v
Olatunji
(supra);
Nigeria
Airforce
v
James
(2003)
FWLR
(pt
143)
257
Okwechime
v
Police
1
FSC
73
.
Thus,
a
defective
charge
may
be
amended
provided
that:
1. The
defect
is
not
incurable
2. The
amendment
is
not
intended
only
to
bring
the
offence
charged
within
the
jurisdiction
of
the
court
–
C.
O.
P
v.
Jinadu
Ilorin(1965)
NNLR
63
3. The
amendment
will
not
cause
injustice
to
the
accused
person.
In
Attorney-General
(Federation)
v.
Isong
(1986)
1
QLRN,
an
information
was
filed
against
the
accused
person
without
the
consent
or
direction
of
a
High
Court
Judge.
The
charge
was
brought
under
the
section,
which
only
defines
the
offence
in
the
Firearms
Act
1966.
The
prosecutor
applied
to
amend
the
charge.
The
court
rejected
the
application
for
amendment
on
the
ground
that
it
would
give
the
prosecutor
an
opportunity
to
re-‐try
the
accused
person;
it
was
therefore
prejudicial
to
the
accused
since
the
information
was
not
properly
obtained
(information
was
quashed)
4. Where
the
error
to
be
amended
is
frivolous,
the
court
may
be
reluctant
to
go
through
the
process
of
amendment
–
Ogbomor
v.
The
State
(supra).
Amendment
of
a
defective
charge
may
therefore
be
made
before
the
accused
person
has
pleaded
to
the
charge
or
after
the
accused
person
has
pleaded
to
the
charge
but
before
judgment.
Note
in
DURU
v
COP:
charge
allowed
to
be
amended
on
the
day
reserved
for
judgment
Amendment
of
a
charge
before
plea
–
Sections
162
CPL;
207
CPCL;
and
154
ACJL.
Amendment
to
a
charge
can
be
done
even
before
the
accused
person
is
called
upon
to
enter
his
plea.
It
is
often
said
that
the
leave
of
the
court
is
not
required
to
amend
a
charge
if
the
accused
has
not
pleaded
to
it
but
after
the
plea
of
the
accused
has
been
taken,
leave
is
required
and
Section
162
of
CPL
is
cited
in
support
of
that
assertion
as
well
as
the
case
of
Uguru
v.
The
State
(2002)
4
SC
(Pt.
2)
13.
While
this
is
understandable
in
the
light
of
the
fact
that
before
arraignment,
the
accused
is
not
before
the
court
and
may
not
even
be
aware
of
the
charge
against
him
and
hence
cannot
be
prejudiced
by
the
amendment,
while
there
can
equally
be
no
inconvenience
to
the
Court
by
the
amendment.
This
clearly
applies
to
the
Magistrate
Court
in
the
South.
For
the
Magistrate
in
the
North,
the
question
of
applying
to
him
for
an
amendment
does
not
arise
since
it
is
the
Magistrate
who
drafts
the
charge
and
gives
directive
for
trial
However,
it
should
also
be
pointed
out
that
it
is
necessary
to
notify
the
Court
of
any
such
amendment.
Furthermore,
for
trials
before
High
Courts
where
leave
of
court
was
sought
to
prefer
the
charge
and
consent
was
sought
and
obtained
to
file
the
information
after
the
Judge
was
satisfied
that
there
was
a
prima
facie
case
based
on
the
proof
of
evidence
had
been
made
out,
as
is
the
case
in
the
North
and
South
respectively
(exception
of
Lagos),
it
would
appear
that
an
amendment
to
the
charge
would
equally
require
the
Court’s
consent
especially
to
ensure
that
the
amendment
also
satisfies
the
same
requirement
unless
the
new
charge
can
be
supported
by
the
proof
of
evidence
filed
for
the
original
charge.
The
prosecution
may
therefore
seek
leave
of
the
trial
court
by
an
oral
application,
to
amend
a
defective
charge.
Therefore,
when
an
accused
person
has
not
pleaded
to
a
charge,
leave
of
court
may
or
may
not
be
required
to
amend
the
charge.
If
it
is
a
charge
in
the
Magistrates’
Courts
under
the
CPL,
it
is
submitted
that
an
entirely
new
charge
may
be
substituted
for
the
original
charge.
If
it
is
a
charge
by
way
of
information
in
the
High
Court
under
the
CPL,
an
entirely
new
charge
cannot
be
substituted
for
the
original
charge
except
a
charge
of
a
previous
conviction
of
an
offence
or
of
being
a
habitual
criminal
or
drunkard
–
Section
340(2)
of
CPL.
This
is
because
the
consent
of
the
judge
was
obtained
to
the
original
charge,
and,
unless
the
new
charge
can
be
supported
by
the
proof
of
evidence
filed
for
the
original
charge
it
would
be
necessary
to
obtain
a
fresh
consent
before
the
information
can
be
filed.
Where
a
charge
is
amended
before
the
accused
person
has
been
called
upon
to
enter
a
plea,
the
court
is
not
under
any
obligation
to
comply
with
the
post
amendment
procedures
because
the
accused
has
not
pleaded
to
the
charge
before
it
is
amended.
Amendment
of
a
charge
after
plea
–
Sections
163
CPL;
208
CPCL;
and
155
ACJL.
The
trial
court
may
also
amend
the
charge
suo
motu.
What
this
means
is
that,
under
the
CPL,
the
court
is
to
grant
leave
to
amend
the
charge
or
to
amend
a
defective
charge
at
any
time
because
it
is
the
duty
of
the
prosecution
to
draft
a
charge
and
not
that
of
the
court.
Under
the
CPCL,
it
is
the
magistrate
who
drafts
the
charge
and
directs
that
the
accused
be
tried
by
the
court
with
jurisdiction.
It
is
submitted
that
unlike
under
the
CPL,
a
magistrate
may
exceed
the
bounds
of
mere
amendment
and
frame
an
entirely
new
charge,
if
the
new
charge
can
be
supported
by
the
evidence
adduced
at
the
pre-‐trial
stage.
However,
where
a
criminal
action
is
brought
in
the
High
Court
by
a
charge
drafted
by
a
law
officer
by
virtue
of
Section
185(b)
of
CPCL,
the
same
rules
of
amendment
as
under
the
CPL
applies.
That
is,
the
Judge
cannot
in
the
process
of
amendment
frame
an
entirely
new
charge,
independent
of
the
original
charge.
In
The
State
v.
The
Chief
Magistrate
Aboh-
Maise,
Ex-parte
Onukwue
(1978)
1
LRN
316,
after
the
accused
persons
had
pleaded
guilty
to
a
charge
of
affray,
the
Magistrate
upon
questioning,
found
that
one
of
the
accused
persons
assaulted
the
other.
Consequently,
he
rejected
the
plea
of
the
accused
and
framed
a
new
charge
of
assault
against
him.
The
charge
was
preferred
in
the
name
of
the
Commissioner
of
Police
but
the
Magistrate
signed
it.
The
accused
persons
brought
an
application
to
the
High
Court
for
the
prerogative
order
of
prohibition
to
prevent
the
Magistrate
from
trying
him
on
the
new
charge.
The
High
Court
held
that
although
a
trial
magistrate
in
amending
a
charge
could
frame
or
substitute
an
entirely
new
charge,
the
substituted
charge
must
be
sustainable
under
the
original
imperfect
charge;
the
substituted
charge
merely
continuing
the
life
of
the
original
charge.
Thus,
there
must
be
a
nexus
between
the
substituted
charge
and
the
original
charge.
The
substituted
charge
should
bear
the
same
charge
number
and
be
against
the
same
person
or
persons.
It
cannot
be
an
independent
and
separate
charge,
co-‐existing
with
the
original
charge.
Thus,
the
court
held
that
the
magistrate
did
not
merely
amend
an
existing
charge
–
he
framed
an
entirely
independent
charge.
The
order
of
prohibition
was
granted.
The
new
charge
must
be
similar
to
or
bear
a
close
relationship
to
the
previous
charge
before
it
can
be
permitted
by
way
of
an
amendment.
In
Okwechime
v.
Inspector-General
of
Police
1
FSC
73,
after
plea,
the
charge
against
the
accused
person
was
amended.
The
offence
of
receiving
property,
being
a
public
officer
in
order
to
show
favour,
contrary
to
section
100
of
the
Criminal
Code,
was
amended
to
section
99
of
the
Criminal
Code.
The
accused
was
convicted.
On
appeal,
the
court
held
that
in
the
process
of
amendment,
a
new
charge
or
accusation
could
be
substituted,
and
the
appeal
was
dismissed.
Also,
in
Elumelu
v.
Inspector-General
of
Police
(1957)
NRNLR
17,
the
charge
sheet
containing
six
counts
of
extortion
was
amended
to
five
counts
of
stealing
and
one
of
extortion
after
the
accused
person
had
pleaded
to
the
previous
charge.
In
the
above
cases,
the
amendments
were
possible
because
the
new
charges
were
related
to
the
previous
charges
and
continued
the
lives
of
the
previous
charges.
To
determine
whether
the
substitution
of
a
new
charge
or
offence,
for
the
original
charge
or
offence
would
be
permitted
by
way
of
amendment,
the
original
charge
has
to
be
compared
with
the
new
charge
sought
to
be
substituted.
Whenever
a
charge
is
amended
after
the
accused
person
had
pleaded
to
it,
the
court
must
comply
with
the
mandatory
post
amendment
procedures
laid
down
in
Sections
163,
164
and
165
of
CPL;
and
208(2),
209,
210,
and
211
of
CPCL.
PROCEDURE
FOR
AMENDMENT
OF
CHARGES
Where
an
accused
person
has
already
pleaded
to
the
charge
before
it
is
amended,
the
Prosecutor
seeking
to
amend
a
charge
may
adopt
any
of
the
following
two
methods:
1. The
prosecutor
may
make
an
oral
application
to
amend
the
charge
–
this
is
sought
orally
to
amend
the
charge.
If
the
court
grants
it,
it
substitutes
the
prior
charge
and
is
corrected
on
the
face
of
the
defective
charge,
but
if
the
amendment
is
of
a
serious
nature
it
is
doubtful
that
the
court
will
grant
such
an
amendment
and
as
such,
the
original
charge
shall
remain
and
the
trial
shall
proceed
upon
it.
This
method
is
adopted
in
cases
where
the
offence
is
a
minor
one
e.g.
clerical
errors,
dates,
etc.
2. The
prosecutor
may
file
a
motion
for
amendment
of
the
charge
–
the
prosecutor
may
tender
a
written
copy
of
the
proposed
amendment
to
the
court
and
if
granted
by
the
court
it
is
attached
and
becomes
the
charge.
This
is
more
advantageous
in
that
it
gives
the
other
party
notice
of
the
amendment
and,
thus,
time
to
scrutinise
the
amended
charge
as
opposed
to
an
amendment
that
is
stated
orally
in
court
without
prior
notice
of
the
other
side,
and
this
can
be
objected
to
–
Section
155(3)
ACJL.
The
court
at
his
own
will
may
also
amend
a
defective
charge
at
any
stage
of
the
proceedings
Attah
v.
The
State
(1993)
7
NWLR
(Pt.
305)
257
at
287;
Duru
v.
C.O.P
(supra).
It
should
however
be
noted
that
an
amendment
has
a
retrospective
effect.
Under
Section
164(4)
of
CPL,
the
amendment
to
a
charge
relates
back
to
the
date
of
filing
of
the
document
containing
the
charge
–
Attah
v.
The
State
(supra).
2. Reading
and
explanation
of
an
amended
charge
–
The
new
charge
must
be
read
and
explained
to
the
accused
person
and
a
fresh
plea
taken
from
the
accused
to
the
amended
charge–
Sections
163
and
164
CPL;
208(2)
CPCL;
and
156(1)
ACJL.
In
Youngman
v.
C.O.P
(1949)
4
FSC
283,
the
accused
person
was
charged
with
indictable
offences
and
was
convicted.
On
appeal
against
his
conviction,
the
accused
contended
that,
inter
alia,
that
failure
by
the
court
to
obtain
a
fresh
plea
and
consent
rendered
his
trial
and
conviction
null
and
void.
The
Supreme
Court
allowed
the
appeal
on
the
ground
that
failure
to
obtain
a
fresh
plea
and
consent
from
the
appellant,
after
the
charge
was
amended,
was
contrary
to
sections
163
and
164(1)
of
the
CPL.
3. Taking
of
fresh
plea
by
the
accused.
-
The
requirement
of
a
fresh
plea
to
a
charge
after
an
amendment
is
also
compulsory
in
criminal
trials
and
tribunals.
In
Okosun
v.
The
State
(1979)
3
&
4
SC
36,
the
accused
was
tried
by
a
Robbery
and
Firearms
Tribunal
for
the
offence
of
robbery.
During
the
trial,
the
charge
was
amended.
The
original
charge
stated
that
the
accused
robbed
the
complainant
of
a
tape
recorder.
The
charge
was
amended
and
‘record
player’
was
substituted
for
‘tape
recorder’.
The
accused
was
convicted.
On
appeal
against
conviction,
it
was
submitted
that
sections
163
and
164
of
the
CPL
applied
to
tribunals,
and
the
tribunal
had
failed
to
comply
with
these
statutory
provisions.
The
Supreme
Court
accepted
counsel’s
contention
and
held
that
failure
to
obtain
a
fresh
plea
after
the
amendment
was
fatal
to
the
trial
and
that
the
trial
was
null
and
void
and
of
no
effect.
The
appeal
was
allowed.
However,
the
requirement
of
a
fresh
consent
to
an
amended
charge
of
indictable
offences
is
only
applicable
in
Magistrates’
Courts
trials
in
Southern
Nigeria
–
Section
304
CPL;
s156
ACJL
Also,
in
the
South,
a
charge
sheet
may
contain
an
indictable
or
non-‐indictable
offence
in
the
same
charge
sheet.
If
the
charge
of
indictable
offence
is
amended,
a
fresh
plea
and
consent
must
be
obtained
–
Jones
v.
C.O.P
(1960)
15
FSC
38,
the
Court
allowed
the
appeal
and
held
that
the
Magistrates’
Courts
ought
to
have
obtained
a
fresh
consent
on
the
amended
indictable
offence.
Where
it
is
non-‐
indictable
offence,
it
requires
no
consent.
Therefore,
if
the
charge
of
non-‐indictable
offence
is
amended,
the
court
can
only
obtain
a
fresh
plea
but
not
a
fresh
consent
because
the
charge
amended
is
not
one
requiring
consent
–
Edun
v.
C.O.P
(1966)
1
All
NLR
17,
the
accused
was
charge
for
robbery
and
taking
ballot
boxes
without
authority.
The
latter
offence
being
one
triable
in
the
Magistrates’
Courts
without
consent.
The
accused
was
convicted.
On
appeal,
the
Supreme
Court
dismissed
the
appeal
and
held
that
the
expression
‘charge’
in
section
304
of
CPL,
does
not
mean
the
whole
document
upon
which
the
accused
is
arraigned,
but
a
statement
of
an
offence.
Therefore,
since
the
statement
of
offence
or
count
amended
is
one
triable
summarily
without
consent,
it
was
unnecessarily
to
obtain
a
fresh
consent
after
the
amendment.
4. Consent
of
the
accused
–
The
court
must
ask
the
accused
whether
he
is
ready
to
be
tried
on
the
amended
charge
–
Section
164(1)
of
CPL.
The
CPCL
does
not
have
such
provision
(in
situations
where
accused
had
consented
to
be
trialled
by
the
magistrate
court)
5. Adjournment
–
The
accused
and
the
prosecutor
must
be
given
the
option
of
an
adjournment
if,
in
opinion
of
the
court,
proceeding
immediately
with
the
trial
after
the
amendment
would
prejudice
either
of
them.
That
is,
either
the
accused
or
the
prosecutor
shall
be
given
adjournment
or
a
new
trial
order
if
proceeding
immediately
with
the
trial
shall
prejudice
the
accused
in
his
defence
or
the
prosecutor
in
the
conduct
of
his
case
–
Sections
164
(2)
&
(3)
CPL;
209
&
210
CPCL;
and
156(2)
&
(3)
ACJL.
Adjournments
are
usually
granted
by
the
court
in
its
discretion
depending
on
the
circumstance
of
the
case,
and
entitlement
to
a
reasonable
time
and
facilities
to
prepare
for
a
defence
is
a
right
of
an
accused
person
–
Section
36(6)(b)
of
the
1999
Constitution;
Gokpa
v.
Inspector-General
of
Police
(1961)
1
All
NLR
432.
6. Call
or
recall
of
witness
–
The
court
must
permit
the
accused
and
the
prosecution
to
recall
any
witness
who
had
testified,
or
call
new
witnesses,
and
examine
or
cross-‐
examine
them
with
reference
to
the
amendment
–
Sections
165
CPL;
211
CPCL;
and
157
ACJL.
That
is,
the
prosecutor
and
the
accused
shall
be
allowed
to
recall
or
re-‐
summon
any
witness
who
may
have
been
examined
and
examine
or
cross-‐examine
such
with
reference
to
such
amendment.
It
is
the
duty
of
the
court
to
inform
the
accused
who
is
not
represented
of
his
counsel
of
this
right
but
where
the
accused
is
represented,
the
court
has
no
duty
to
inform
his
counsel
because
it
is
presumed
that
the
counsel
know
these
procedures.
In
Shoaga
v.
R
14
WACA
22
Verity
CJ
observed
thus:
“Under
section
165,
it
is
clearly
laid
down
that
where
an
alteration
or
an
addition
has
been
made
in
the
charge,
the
accused
person
must
be
allowed
to
recall
and
cross-examine
any
witness
who
has
already
given
evidence
if
he
so
desires.
That
is
a
right
which
can
not
be
taken
away
from
him
and
of
which
he
must
be
informed
if
he
is
not
legally
represented.”
The
court
cannot
refuse
an
application
to
call
or
recall
witnesses
after
a
charge
has
been
amended
–
Adisa
v.
Attorney-General
of
Western
Nigeria
(1965)
1
All
NLR
412,
the
Supreme
Court
held,
inter
alia,
that
the
accused
person
had
a
right
to
recall
witnesses
after
the
charge
against
him
was
amended.
EFFECT
OF
NON
COMPLIANCE
WITH
POST
AMENDMENT
PROCEDURE
1 Failure
to
endorse
the
amendment
CAN
vitiate
proceedings-‐
COP
V.ALAO
2 Failure
to
give
the
parties
room
to
adjourn
will
not
vitiate
trial
EXCEPT
a
miscarriage
of
justice
has
been
occasioned.
3 Where
the
court
refuses
an
application
to
call
or
recall
witnesses
after
the
charge
has
been
amended,
the
conviction
may
be
set
aside
and
a
retrial
ordered:
ADISA
V.
A
G
WESTERN
NIGERIA
4 Failure
to
call
on
the
accused
to
take
a
fresh
plea
would
render
the
proceedings
a
complete
nullity-‐
UKET
v
FRN
THE
EFFECT
OF
A
CONVICTION
ON
A
DEFECTIVE
CHARGE
–
S.166
CPL
;
S.206
CPCL;
S.158
ACJL
It
may
or
may
not
nullify
a
trial
and
conviction
depending
on
if
it
occasioned
a
miscarriage
of
justice.
The
trial
will
be
set
aside
if:
a. The
defect
leading
to
the
conviction
is
fundamental
b. It
prejudiced
the
accused
in
the
conduct
of
his
defence,
and
c. It
brought
about
the
conviction
of
the
accused
HOW
TO
MAKE
ORAL
APPLICATION
FOR
AMENDMENT
BEFORE
PLEA
On
the
day
of
arraignment
(mention),
the
Prosecutor
would
simply
inform
the
Court
as
follows:
My
Lord,
there
are
two
charges
filed
in
this
case.
One
is
dated
….
and
the
other
dated
…
we
apply
to
withdraw
the
one
dated
…
If
the
court
approves,
the
amended
charge
shall
become
the
new
charge
upon
which
the
trial
shall
proceed.
a)
MAGISTRATE
COURT
IN
THE
NORTH
THE
THREE
PARAGRAPH
CHARGE
COMPRISING
OF
AN
INTRODUCTORY
PARAGRAPH,
THE
CHARGE
AND
THE
DIRECTIONAL
PARAGRAPH:
(APPENDIX
5-curriculum)
IN
THE
MAGISTRATE
COURT
OF
THE
FEDERAL
CAPITAL
TERRITORY,
ABUJA
IN
THE
ABUJA
MAGISTERIAL
DISTRICT
HOLDEN
AT
WUSE
CASE
NO:……….
BETWWEN:
COMMISSIONER
OF
POLICE
……………………
COMPLAINANT
VS.
1.UMARU
OBI
2.
EHI
SHEHU
…………………..
ACCUSED
PERSONS
I,
Gabrielle
Ndu,
Chief
Magistrate
Grade
I
hereby
charge
UMARU
OBI
and
EHI
SHEHU
with
the
following
offences:
CHARGE
ONE:
That
you
Umaru
Obi
and
Ehi
Shehu
on
the
2
day
of
November
2000
at
the
Julius
Berger
roundabout
Wuse
Abuja
and
within
the
Magisterial
District
of
this
Court,
drove
in
a
convoy
manner
recklessly
and
menacingly
through
traffic
with
motorcycles
numbers
XL
14GWA
and
XD
35KWL
respectively
and
thereby
committed
the
offence
of
reckless
driving
punishable
under
section
6
of
the
Federal
Highways
Act
1971.
CHARGE
TWO:
That
you
Umaru
Obi
on
the
2
day
of
November
2000
at
the
Julius
Berger
roundabout
Wuse
Abuja
and
within
the
Magisterial
District
of
this
Court,
drove
recklessly
which
caused
the
death
of
one
Miss
Rose
Ogun
at
the
spot
and
thereby
committed
the
offence
of
causing
death
by
dangerous
driving
punishable
under
section
5
of
the
Federal
Highways
Act
1971.
I
hereby
direct
that
you
be
tried
by
the
High
Court
of
the
Federal
Capital
Territory
at
the
Wuse
Judicial
Division
Abuja
for
this
said
offences.
DATED
THE
…………
DAY
OF
…………………………..
2001.
……………………………
Ndu
Gabriella
Chief
Magistrate
I
Wuse
Magisterial
District,
Abuja.
b)
Magistrate
Court
in
the
South
WEEK
10-BAIL
PENDING
TRIAL
MEANING
OF
BAIL
It
is
the
temporary
release
of
an
accused
(if
charged
to
Court)
or
suspect
(if
in
Police
custody)
from
prison
or
custody
pending
the
determination
of
the
case
on
the
condition
that
he
would
attend
Court
for
his
trial.
It
is
a
constitutional
right.
-‐S.
35(4),
s35(5)
and
s36(5)
of
the
Constitution
of
FRN
1999(
as
amended)
on
the
right
to
personal
liberty.
Section
35(4)
1999
Constitution:
any
person
who
is
arrested
or
detained
in
accordance
with
the
provisions
of
subsection
(1)(c)
of
this
section
shall
be
brought
before
a
court
of
law
within
a
reasonable
time,
and
if
he
is
not
tried
within
a
period
of
(a) two
months
from
the
date
of
his
arrest
or
detention
in
the
case
of
a
person
who
is
in
custody
or
is
not
entitled
to
bail
(b) three
months
from
the
date
of
his
arrest
or
detention
in
the
case
of
a
person
who
has
been
released
on
bail,
he
shall
(without
prejudice
to
any
further
proceedings
that
may
be
brought
against
him)
be
released
either
unconditionally
or
upon
such
conditions
as
are
necessary
to
ensure
that
he
appears
for
trial
at
a
later
date
Section
35(5)
1999
Constitution
provides
what
a
reasonable
time
means:
a
reasonable
time
means
(a) in
the
case
of
an
arrest
or
detention
in
a
place
where
there
is
a
court
of
competent
jurisdiction
within
a
radius
of
40km,
a
period
of
one
day;
and
(b) in
any
other
case,
a
period
of
two
days
or
such
longer
period
as
in
the
circumstances
may
be
considered
by
the
court
to
be
reasonable
Section
36(5)
1999
Constitution:
every
person
who
is
charged
with
a
criminal
offence
shall
be
presumed
to
be
innocent
until
he
is
proved
guilty.
IMPORTANCE
OF
BAIL
1.
It
allows
an
innocent
person
escape
punishment
before
their
trial.
2.
It
gives
the
accused
enough
time
to
prepare
for
his
defence
TYPES
OF
BAIL
Bail
arises
at
three
different
stages
of
the
criminal
justice
process;
a.
Police
Bail
pending
investigation-(SUSPECT)
S.
17
&18
CPL;
S.17
ACJL,
S.
129
CPCL,
S.
27
Police
Act
b.
Bail
pending
Trial
(ACCUSED
PERSON)-‐S.118
CPL;
s.115
ACJL;
S.340&341
CPCL
c.
Bail
pending
Appeal
(CONVICTED
PERSON):
s283(4)
CPL,
s69(3)
Magistrate
Court
Law
2009
DURATION/
LIFESPAN
OF
BAIL
This
depends
on
the
type
of
bail
applied
for
and
granted
as
follows:
1. Police
bail:
will
lapse
on
the
arraignment
of
an
accused
in
Court
2. Bail
pending
trial:
the
bail
will
subsist
till
the
end
of
the
trial.
3. Bail
pending
appeal
will
subsist
till
the
determination
of
the
appeal.
BAIL
BY
THE
COURT
PENDING
TRIAL-
S.
118
CPL,
SS.
340
&
341
CPCL.
This
may
come
in
two
ways;
1. Endorsement
of
court
bail
upon
warrant
of
arrest
by
the
court
or
Justice
of
the
Peace
EXCEPT
in
capital
offences-‐Sections
30
CPL,
57
CPCL
2. Application
for
court
bail
immediately
after
arraignment.
CIRCUMSTANCES
WHEN
COURT
BAIL
MAY
BE
GRANTED
IN
NIGERIA
This
depends
on
the
nature
of
the
offence
as
follows:
a. SIMPLE
OFFENCES
(LESS
THAN
SIX
MONTHS),
MISDEMEANOURS(6
MTHS-3YRS)-the
Court
shall
grant
bail
EXCEPT
it
sees
good
reason
not
to.
–
S.
118(3)
CPL;
S.115(3)
ACJL
S.
341(3)
CPCL
NB-‐S.340(1)
CPCL
has
TWO
EXCEPTIONS-If
the
bail
will
prejudice
further
investigation
or
occasion
risk
of
escape.(NORTH
ONLY)
B.FELONY
(THREE
YRS
OR
MORE)it
is
at
the
discretion
of
the
Court.
S.
115
(2)
ACJL,
S.
341(2)CPCL
and
S.
118(2)
CPL.
C.
CAPITAL
OFFENCES-‐Only
a
High
Court
Judge
that
can
grant
bail
on
capital
matters.
S.
115
(1)
ACJL,
S.
341(1)
of
the
CPCL,
S.
118(1)
of
CPL,
S.
35(7)
(a)
CFRN
OLADELE
VS.
THE
STATE.
An
applicant
for
bail
on
capital
offences
must
show
SPECIAL
CIRCUMSTANCES-‐
ABACHA
V.
STATE.
SPECIAL
CIRCUMSTANCES
FOR
GRANT
OF
BAIL
IN
CAPITAL
OFFENCES
1. On
grounds
of
severe
ill
health-‐SULEIMAN
V.STATE
2. When
the
proof
of
evidence
does
not
link
the
accused
person
with
the
crime-‐
ABACHA
V.STATE
3. Where
a
defence
of
ALIBI
has
been
satisfactorily
investigated.
NB-‐A
magistrate
Court
can
grant
bail
on
all
other
offences
except
in
respect
to
CAPITAL
OFFENCES
in
Nigeria-‐
S.118
CPL;
S.12
CPCL&APPENDIX
A
CPCL;
S.115
ACJL
STATE
V.OZUZU
MODES
OF
APPLICATION
FOR
BAIL
1.POLICE
BAIL:
by
writing
a
letter
addressed
to
the
Divisional
Police
Officer
of
the
Station
or
form
2.BAIL
PENDING
TRIAL-This
will
depend
on
the
Court
in
question:
No
provision
in
the
CPL
or
CPCL
or
ACJL
on
the
procedure
for
applying
for
bail.
a.
Magistrate
Court
in
the
North/south:
Application
for
bail
can
only
be
made
after
plea
It
can
be
made
orally
immediately
after
arraignment
(after
a
plea
has
been
made)
or
where
the
adverse
party
objects
or
is
likely
to
object
to
the
bail
application,
the
court
may
require
the
Applicant
to
make
a
written
application
or
by
a
summons
(supported
by
an
affidavit).
Okeke
and
another
v
COP
(1960)
NRNLR
1:
held
that
an
application
for
bail
pending
trial
should
be
by
way
of
summons
(Northern
Nigeria).
Tanko
v
COP:
held
that
application
for
bail
pending
trial
should
be
by
way
of
summons.
Supreme
CT
clarified
the
difference
btw
summons
and
motion.
Summons
is
used
pending
trial
because
presumption
of
innocence
still
inures
to
the
benefit
of
the
accused.
So
it
is
for
the
State
to
explain
why
the
accused
should
remain
in
prison.
We
use
motion
after
conviction,
presumption
of
innocence
no
longer
applies.
If
application
is
not
of
the
nature
to
be
taken
orally,
then
accompany
it
with
an
affidavit.
Must
contain
facts
that
will
allow
the
magistrate/judge
to
exercise
his
discretion
in
your
client’s
favour
NB-‐where
the
magistrate
has
heard
an
oral
application
for
bail
and
the
objections
taken;
then
the
magistrate
should
rule
on
the
application
and
not
ask
for
a
written
application
–
Dogo
v.
COP
Exercise
of
this
power
to
grant
bail
depends
on
the
nature
of
the
offence
charged.
In
the
North,
it
is
possible
to
grant
bail
for
a
capital
offence
(s341(1)
&
344
CPCL).
While
in
the
South
and
Lagos:
s118(1)
CPL
&
s115(1)
ACJL,
it
is
possible
but
restricted
to
High
CT
judges.
Felonies
other
than
capital
offences:
both
the
magistrates
and
High
CTs
may
grant
bail:
s341(2)
CPCL,
118(2)
CPL
&
115(2)
ACJR&R
Law
Misdemeanour
or
other
simple
offences:
both
magistrates
and
high
CTs
may
grant
bail
s340(1)
CPCL,
s118(3)
CPL,
s115
ACJR&R
Law.
(Section
322(1)
CPCL,
225(1)(a)
CPL
and
s219(1)(a)
Administration
of
Criminal
Justice
(Repeal
&
Re-‐enactment)
Law
2011).
(Check
this
out
as
to
when
application
for
bail
can
be
made
even
where
plea
is
not
taken
e.g.
in
cases
of
insanity
e.g.
s225(1)(a)
CPL
states
that
Whenever
an
accused
person
is
found
to
be
of
unsound
mind
and
incapable
of
making
his
defence,
the
court,
the
offence
charged
is
bailable
by
the
court,
may,
in
its
discretion,
release
him
on
sufficient
security
being
given
that
he
shall
be
properly
taken
care
of
and
shall
be
prevented
from
doing
injury
to
himself
or
to
any
other
person,
and
for
his
appearance
when
required
before
the
court
or
such
officer
as
the
court
appoints
in
that
behalf.).
High
Courts
The
various
laws
did
not
provide
for
the
procedure
for
bail
application
in
the
High
Court:
s363
CPL
(since
no
stated
procedure,
the
procedure
in
High
CT
of
England
is
applicable
i.e.
by
summons);
s262
ACJR&R
Law
(to
do
substantial
justice
–
the
same
procedure
under
the
CPL
is
adopted),
s35
High
Court
law
of
Northern
Nigeria
(prohibited
the
adoption
of
the
procedure
under
CPL
to
refer
to
the
High
CT
of
England
so
substantial
justice
is
to
be
done
–
so
if
the
application
is
by
motion
or
summons,
the
CT
is
empowered
to
listen
to
the
relief
sought).
b.
High
Courts
in
the
South
it
is
by
a
summons
supported
with
an
affidavit
and
a
written
address.
S.
363
of
the
CPL,
SIMIDELE
VS.
COP;
English
Rules
of
the
Supreme
Court
1949
c.
High
courts
in
lagos-S.262
ACJL-Summons
or
motion
d.
High
Courts
in
the
North,
it
is
by
summons
or
Motion
on
Notice
but
usually
by
motion
on
notice
e.
Refusal
of
bail
at
magistrate
courts
in
the
South-‐apply
to
the
High
CT
by
SUMMONS
supported
by
affidavit-‐S.363,
SIMIDELE
V.
COP
(1966)
f.
Refusal
of
bail
at
magistrate
courts
in
the
North-‐Summons
or
motion-(summons
is
usually
preferred)-‐ACHADU
V.STATE;
TANKO
V.STATE
NOTE-(EXAM)-Application
for
bail
at
the
High
Court
can
be
made
orally
and
subject
to
discretion
of
the
court,
however
it
is
desirable
that
it
is
made
by
Motion
on
Notice
supported
with
an
affidavit
and
a
written
address.
-‐ABIOLA
VS.
FRN
APPLICATION
FOR
BAIL
TO
THE
HIGH
COURT
AFTER
REFUSAL
AT
THE
MAGISTRATE
COURT-
The
magistrate
shall
inform
the
accused
of
that
right
to
apply
to
the
High
CT
after
refusal.
Certified
true
copies
of
the
proceedings
shall
be
lodged
at
the
High
CT
This
is
done
where
an
application
for
bail
is
made
to
the
magistrate
court
and
it
fails
to
consider;
refuses
or
neglects
to
grant
bail.
S.123
CPL;
S.119
ACJL;
S.
342
of
the
CPCL;
DOGO
VS.
COP.
NB:
Dogo
v
COP:
bail
cannot
be
refused
as
a
punishment
CONDITION
PRECEDENT-an
application
for
bail
must
have
been
made
first
at
the
magistrate
court-‐ABACHA
V.
STATE
EXCEPTION-
cases
of
extreme
urgency-‐
Offiong
v.
Police-(no
urgency)-
APPLICATION
REJECTED
PROCEDURE-summons
or
motion
(north)
and
Summons(south).
The
Summons
for
bail
will
be
supported
with:
1. An
affidavit
2. Certified
true
copy
of
the
Charge
Sheet
3. Certified
true
copy
of
the
record
of
proceedings
4. Certified
true
copy
of
the
Order
of
the
Magistrate
refusing
bail
5. Written
address
NB-(VIP)-
Where
two
or
more
co-accused
apply
for
bail
engaging
one
Counsel,
they
must
do
it
separately
as
it
is
personal.
Separate
affidavits
and
written
addresses
should
be
filed.
PROPER
STEP
TO
TAKE
AFTER
REFUSAL
OF
BAIL
BY
A
HIGH
COURT
(EXAMS)
Where
bail
is
refused
by
a
High
Court
Judge,
a
similar
application
cannot
be
made
to
another
High
Court
Judge
as
this
will
amount
to
the
Judge
sitting
on
appeal
over
the
decision
of
a
Court
of
co-‐ordinate
jurisdiction.
The
proper
thing
to
do
is
to
appeal
against
the
order
of
refusal
to
the
Court
of
appeal-
THE
STATE
VS.
UWAH
(1976)
(contrast
this
with
CONSENT/LEAVE
TO
FILE
CHARGE
DIFFERENCES
BETWEEN
MOTION
ON
NOTICE
&
SUMMONS
FOR
BAIL
1. The
application
for
bail
pending
trial
is
by
summons
which
is
directed
to
the
state
to
show
cause
why
the
accused
should
be
granted
bail
(presumption
of
innocence)
while
application
for
bail
by
motion
instead,
prays
the
court
to
allow
the
accused
to
be
-‐-‐
released
on
bail.
2. Application
for
bail
through
summons
is
usually
made
to
the
Judge
in
chambers
while
application
for
bail
by
motion
is
made
to
the
court.-‐STATE
V.
UWAH
3. The
only
difference
between
the
contents
of
summons
and
the
content
of
a
motion
is
in
the
commencement
phrase
Summons
==#
“LET
ALL
PARTIES
…”
Motion==#
“TAKE
NOTICE
…”
EFFECT
OF
NON-COMPLIANCE
WITH
THE
PROCEDURE
FOR
BAIL
APPLICATION
1.The
Court
will
not
strike
out
the
application
if
commenced
by
a
Motion
on
Notice
instead
of
it
to
be
by
Summons.
This
is
to
do
substantial
justice
rather
than
allowing
technicalities
of
the
Law
to
delay
justice.
OLUGBUSI
VS.
COP
If
a
person
has
a
right,
it
does
not
matter
how
he
enforces
it.
-‐FALOBI
VS.
FALOBI
and
BELLO
VS.
A.G
OYO
STATE.
CONDITIONS
FOR
GRANTING
BAIL
APPLICATIONS
IN
THE
NORTH
The
CPCL
prescribes
some
conditions
for
bail
viz
a.
Whether
there
are
reasonable
grounds
for
believing
that
a
person
accused
has
committed
the
offence
S.
341(3).
b.
That
by
reason
of
granting
bail,
the
proper
investigation
of
the
offence
would
not
be
prejudiced;
and
c.
That
no
serious
risk
of
the
accused
escaping
from
justice
would
be
occasioned;
and
d.
That
no
ground
exist
for
believing
that
the
accused,
if
released
would
commit
an
offence
–
S.
341(2)
NB
==#The
first
condition
is
independent,
while
the
last
three
conditions
are
cumulative.
GENERAL
FACTORS
FOR
THE
GRANT
OR
REFUSAL
OF
BAIL
No
laid
down
rules
in
the
CPL/ACJR&R/CFRN.
Only
the
CPCL
made
provisions
as
a
guide:
s341(2)
CPCL
and
note
s341(3)
CPCL.
Applicant
is
expected
to
generate
his
factors
to
be
taken
into
account
–
depending
on
the
case
at
hand
1. Nature/gravity
of
the
offence
or
severity
of
punishment
for
the
offence:
ANAEKWE
V.
COP
(1996):
on
a
charge
of
conspiracy
and
murder,
the
Magistrate
ordered
that
the
defendants
remanded
in
prison
custody.
The
High
CT
judge
refused
an
application
for
bail
on
the
ground
that
the
offence
allegedly
committed
was
‘murder’
2. Availability
of
the
accused
to
stand
trial
i.e.
danger
of
absconding
3. Nature,
character
and
quality
of
available
evidence
against
the
accused-‐
ABACHA
V.
STATE
(Strong
indication
of
commission
of
a
serious
offence)
CONTRAST
WITH
NWOKE
V.
FRN
(weak
proof/trivial
offence)
e.g.
witness
testimonies,
exhibits
filed.
4. Severity
of
punishment
in
the
event
of
conviction
5. Likelihood
of
commission
of
another
offence
while
on
bail–R
V.
JAMMAL
6. Criminal
Records
of
the
accused
if
he
is
a
first
offender
or
not-‐
EYU
V.
STATE(Good
character)
and
AJUDUA
V.
FRN(several
pending
cases)
–record
of
previous
convictions
7. The
Prevalence
of
the
offence
i.e.
where
a
particular
offence
is
prevalent
in
an
area
or
at
a
given
time,
the
CT
is
usually
slow
to
grant
bail.
THE
STATE
v
FELIX
and
AJUDA
VS.
FRN.
NB-‐NWOKE
V.
FRN-‐bailaible
offences.
In
Bamaiyi
v
State
(2001):
the
spate
of
assassinations
in
the
country
especially
in
Lagos
was
a
factor
the
court
considered
to
deny
the
applicant
bail;
Omodara
v
The
State
8. Detention
of
the
accused
is
for
his
Protection/safety.-‐BAMAIYI
VS.
THE
STATE;
NNOGU
V.
STATE
9. Interference
with
police
investigation
or
prosecution
-‐
DANTATA
VS.
IGP(bribe)BAMAIYI
V.STATE(Influential
person);DAMBABA
V.STATE
10. Medical
or
health
grounds.
FAWEHINMI
VS.
THE
STATE;
ANI
V.
STATE;
NWUDE
V.FRN
e.g.
renal
failure.
NB:
it
appears
that
HIV/AIDS
no
longer
counts
as
a
health
factor
NB-
CONDITIONS
• The
prison
facilities
must
be
insufficient
• Continued
detention
of
the
accused
will
endanger
life
of
other
detainees.
• There
must
be
evidence
that
the
accused
person
while
in
detention
has
sought
for
treatment
from
prison
authorities.
NB:
If
the
defence
counsel
puts
legal
argument
and
conclusions
and
points
of
law
in
his
affidavit,
the
prosecution
can
orally
ask
the
CT
to
exclude
these
legal
arguments
as
this
offends
against
the
Evidence
Act
TERMS
/CONDITIONS/
SECURITY
FOR
BAIL
NB-do
not
mix
up
with
factors
for
grant
of
bail
This
refers
to
the
Conditions
to
be
fulfilled
by
the
accused
in
order
to
secure
the
bail.
Used
for
securing
attendance
of
the
accused.
Conditions
are
generally
at
the
discretion
of
the
court
to
impose.
NB:
there
are
no
general
conditions
and
conditions
must
not
be
onerous
and
excessive:
s349(1)
CPCL;
s120
CPL
&
116(1)
ACJR&R
Law
THE
USUAL
TERMS
OF
BAIL
ARE:
1. Bail
on
self-‐recognisance
with
no
surety,
security
or
conditions
needed
–
normally
in
cases
of
misdemeanour
2. Execution
of
bail
bond
(undertaking
to
be
present)
for
a
fixed
amount
NB-‐forfeiture
of
bond-‐
he
only
pays
when
he
fails
to
appear-‐s.132
ACJL.
Under
ACJ,
there
are
registered
bond
masters
3. Bail
with
bond
and
surety
for
a
specified
sum.-‐
S.
122
CPL
;
S.118
ACJL;
S.345
CPCL;
S.27
Police
Act
4. Deposit
of
money
in
lieu
of
bond.
.
S.120
CPL
;
S.
347
of
the
CPCL.;
ONUIGBO
V.
POLICE
NB-‐This
may
be
on
the
application
of
the
accused
or
order
of
court-
EYU
V.
STATE;
S.120
CPL;
S.116(2)
ACJL
ADDITIONAL
SECURITY
FOR
GRANTING
TERMS
OF
BAIL
A
court
may
demand
that
a
surety
must
be
i.
Resident
within
jurisdiction.
ii.
Own
landed
property
within
jurisdiction.
iii.
Deposit
his
title
deeds
to
the
property
with
the
court.
iv.
Swear
to
an
affidavit
of
means.
v.
Deposit
his
international
passport
with
the
court.
CT
may
require
a
surety
of
a
particular
standing/status
in
society
e.g.
Civil
servant
above
a
particular
grade
in
the
Ministry.
NB:
the
terms
and
conditions
are
not
exhaustive
–
determined
by
the
particular
circumstances
of
the
case
s138
ACJ(R&R)
Law:
introduction
of
bail
bondsmen
s372
ACJ
(R&R)
Law
decides
on
how
the
law
should
be
cited
REVIEW
OF
THE
TERMS
OF
BAIL
S.
120
CPL
&
344(1)
CPCL&
S.
116(1)
ACJL
provide
that
the
terms
of
bail
shall
be
fixed
with
regard
to
circumstances
of
each
case
and
shall
not
be
excessive.
An
accused
person
granted
bail
by
a
magistrate
court
on
onerous
terms
may
apply
to
the
High
Court
for
a
review
of
the
terms
of
bail.
–
S.
125
CPL;
S.
344
CPCL
Eyu
v.
State(EXCESSIVE
TERMS);
State
v.
Amaefule
(NOT
EXCESSIVE).
Application
to
review
bail
terms
can
be
made
where
they
are
onerous.
A
surety
may
upon
application
be
discharged
by
the
court.
OPTIONS
OPEN
TO
A
COURT
WHEN
AN
ACCUSED
PERSON
ON
JUMPS
BAIL
-‐Where
a
person
on
police
or
court
bail
fails
or
refuses
to
attend
the
station/court
on
the
date
fixed
on
the
bail
bond
,the
court
may:
a.
revoke
his
bail.
b.
issue
a
bench
warrant
for
his
arrest.
c.
order
the
forfeiture
of
the
bail
bond
d.
order
surety
to
pay
the
said
sum
FORFEITURE
OF
BAIL
BOND
Upon
forfeiture
of
the
bond,
the
court
may
order
the
surety
to
pay
the
sum
stated
in
the
bond
into
the
court
registry.
Before
the
bail
bond
executed
by
the
surety
is
forfeited,
the
surety
must
be
given
a
fair,
hearing.-‐
Amadu
Tea
v.
COP;
-S.
354
(1)(2)
CPCL
NB-‐
where
the
surety
cannot
pay/or
fails
to
pay,
he
will
be
thrown
into
prison
till
he
is
able
to
pay
the
sum.
NB-‐
any
person
dissatisfied
with
the
order
of
forfeiture
by
the
court
can
appeal:
S142
CPL
REVOCATION
OF
BAIL
The
grounds
for
revoking
the
bail
granted
are
as
follows:
1. If
an
accused
who
was
granted
bail
by
the
Magistrate
Court
is
also
indicted
for
an
offence
at
the
High
Court.
S.
132
of
the
CPL
and
S.
127
ACJL.
2. If
the
accused
failed
to
appear
for
his
trial
with
no
reason
3. The
surety
applies
to
be
discharged.
NB:
CT
will
not
immediately
revoke
bail,
they
give
the
accused
an
opportunity
to
substitute
the
surety.
Only
when
the
accused
cannot
procure
a
surety
that
is
to
the
satisfaction
of
the
CT
will
the
CT
revoke
bail.
S.
129
ACJL,
S.
134
CPL
and
S.
351
CPCL.
4. The
accused
granted
bail
is
about
to
leave
Nigeria
and
an
information
is
given
to
the
Court-‐S.
130
of
CPL
5. If
the
grant
was
based
on
fraud.
WHO
QUALIFIES
TO
BE
A
SURETY
a. A
person
of
known
address
b. A
person
with
known
means
of
income
c. A
person
of
good
character
d. A
person
acceptable
to
the
court.
ELIGIBILITY
OF
WOMEN
TO
STAND
SURETY
(EXAM
AREA)(LAGOS)
There
is
no
law
that
stops
a
woman
from
standing
surety
in
any
case.
Such
discrimination
is
unconstitutional
(S.42
1999
Constitution).
NB-‐S.
118(3)
ACJL
2011
provides
that
no
person
shall
be
denied
or
prevented
or
restricted
from
entering
into
any
recognisance
or
standing
as
surety
on
the
ground
that
the
person
is
a
woman.
APPLICATION
FOR
DISCHARGE
BY
A
SURETY
A
surety
may
apply
to
be
discharged
from
his
surety-‐ship
or
surrender
the
accused
to
the
court
before
the
date
assigned:
Onyebuchi
v.
FRN
NB-‐Where
this
happens,
the
accused
shall
be
detained
until
he
gets
another
surety,
else
he
would
remain
in
detention
until
the
case
is
determined.-
S.
134
CPL,
S.
351
CPCL,
S.
129
ACJL
HOW
TO
MOVE
AN
APPLICATION
FOR
BAIL-IRPAAC/MOWAC(P.587;179-182-
ONIEKORO)
1. R(Rule/section)-
the
motion
is
brought
pursuant
to
______and
under
the
inherent
jurisdiction
of
this
court
2. My
lord,
we
seek
the
following
reliefs
3. An
order
of
the
court
admitting
the
1st
accused
person/applicant
to
bail
pending
the
determination
of
his
trial
4. A-my
lord,
our
motion
is
supported
by
a
10
paragraph
affidavit
sworn
to
by
_____________
We
rely
on
all
the
paragraphs
of
the
affidavit
particularly
paragraphs
4-9.
Accompanying
the
affidavit
are
___
exhibits
marked___.
5. A-
we
have
also
filed
a
written
address
in
support
of
our
application.
We
wish
to
adopt
same
6. My
lord
it
is
trite
law
that
for
an
applicant
to
be
granted
bail,
he
must
_-‐-‐the
applicant
has
satisfied
these
conditions
7. C-‐We
humbly
pray
this
honourable
court
to
grant
bail
to
the
accused
on
liberal
terms
8. May
it
please
the
court/
we
are
grateful,
my
lord.
Note-‐
when
to
align
your
depositions
in
the
affidavit
for
bail
with
the
factors
for
grant
of
bail
(2013
pq)
Note-‐
the
hospital
card
can
be
attached
as
an
exhibit
SCENARIO
FOR
FURTHER
PRACTICE
Dr
Chidi
Wanpam
is
a
resident
medical
doctor
with
Jos
university
teaching
hospital
and
resides
in
the
Rayfield
area
of
the
city.
On
the
15th
of
june
2013
while
he
was
on
special
duty
at
the
teaching
hospital,
two
men
Audu
Mekoi
and
Benbon
Forum
broke
into
his
apartment
and
carted
away
with
his
property.
Following
a
tip
off,
they
were
arrested
by
the
police
at
the
old
airport
junction,
Jos
and
taken
to
the
state
police
command
where
they
were
detained.
The
police
have
refused
to
grant
them
bail
after
one
month
of
detention
on
the
ground
that
investigations
are
still
on.
Audu
Mekoi
is
an
outpatient
at
the
plateau
specialist
hospital
where
he
is
receiving
treatment
for
diabetes
while
his
friend
suffers
from
high
blood
pressure.
Draft
an
application
for
bail
and
supporting
affidavit
of
5
paragraphs
for
each
accused
person.
GUIDELINES
Write
the
traditional
first
two
paragraphs,
Third-‐
details
of
arrest
and
detention
and
the
reasons
in
the
4thparagraph
(here
state
reasons
in
(a,b,c)
including
ill
health
details
and
conclude
with
the
last
traditional
paragraph.
IN
THE
HIGH
COURT
OF
THE
FEDERAL
CAPITAL
TERRITORY,
ABUJA
IN
THE
ABUJA
JUDICIAL
DIVISION
HOLDEN
AT
ABUJA
CASE
NO:…………….
BETWEEN:
THE
FEDERAL
REPUBLIC
OF
NIGERIA...COMPLAINANT/RESPONDENT
AND
1.IKPO……………………ACCUSED
PERSONS/RESPONDENT
2.BURAGO…………………
ACCUSED
PERSON/APPLICANT
SUMMONS
BROUGHT
PURSUANT
TO
SECTIONS
35(4),
S.36(5)
OF
THE
CONSTITUTION
OF
THE
FEDERAL
REPUBLIC
OF
NIGERIA
1999
(AS
AMENDED),
SECTION
341(2)
and
(3)
OF
THE
CRIMINAL
PROCEDURE
CODE
ACT
AND
UNDER
THE
INHERENT
JURISDICTION
OF
THIS
HONOURABLE
COURT
LET
ALL
PARTIES
attend
at
this
Honourable
court
on
the
…….day
of
…….
2015
at
the
Hour
of
9
O’clock
in
the
forenoon
or
so
soon
thereafter
on
the
hearing
of
an
application
for
bail
by
counsel
on
behalf
of
the
Accused
person/
Applicant
for:
1.AN
ORDER
admitting
the
Applicant
to
bail
pending
the
determination
of
the
trial
at
the
Magistrate
Court.
2.AND
FOR
SUCH
ORDERS
OR
FURTHER
ORDERS
as
this
Court
may
deem
fit
to
make
in
the
circumstances.
DATED
THIS
………
DAY
OF………………………….2015.
……………………..
EMOKINIOVO
DAFE-‐AKPEDEYE
COUNSEL
TO
THE
ACCUSED/APPLICANTS
Whose
address
for
service
is:
Compos
Mentis
Chambers
No.
15
Binta
Close
Bwari,
Abuja
FOR
SERVICE
ON
:
The
Attorney-‐General
of
the
Federation,
Federal
Ministry
of
Justice,
Maitama
,
Abuja,
IN
THE
HIGH
COURT
OF
THE
FEDERAL
CAPITAL
TERRITORY
IN
THE
ABUJA
JUDICIAL
DIVISION
HOLDEN
AT
ABUJA
CASE
NO:
…………….
BETWEEN:
FEDERAL
REPUBLIC
OF
NIGERIA
………..……..
COMPLAINANT/RESPONDENT
V.
1.BURAGO
…………………2ND
ACCUSED
PERSON/APPLICANT
AFFIDAVIT
IN
SUPPORT
OF
MOTION
(SUMMONS)
FOR
BAIL
OF
THE
2ND
ACCUSED
I,
Alhaji
Mohammed,
Male,
Adult,
Muslim,
businessman
and
a
Nigerian
citizen
of
No.
40
Bwari
Close,
Bwari,
Abuja
do
hereby
make
oath
and
state
as
follows:
1. I
am
the
elder
brother
of
the
1st
Accused
person/Applicant
and
by
virtue
of
which
I
am
conversant
with
the
facts
of
this
case.
2. I
have
the
authority
and
consent
of
the
2nd
Accused/Applicant
to
depose
to
this
Affidavit.
3. Certified
true
copy
of
the
first
true
information
report
and
also
certified
copy
of
the
magistrate
ruling
refusing
bail
4. On
the
10
day
of
December
2014
the
accused/Applicants
were
arrested
by
the
police
for
allegedly
stealing
the
sum
of
N20,000.00
from
one
Mrs
Ene
Agbo
about
2
kilometres
from
the
Law
School
gate,
Bwari,
Abuja.
5. The
Accused/Applicants
is
standing
trial
for
the
Charge
of
stealing
which
is
a
felony.
6. The
2nd
accused/Applicant
is
a
person
of
good
character
having
no
previous
criminal
record.
7. The
2nd
Accused/Applicant
was
diagnosed
of
renal
failure
and
Kidney
stones
in
2010
and
he
is
still
undergoing
medical
check-‐up
monthly
at
Gwagwalada
Specialist
Hospital,
a
copy
of
the
Medical
Report
is
hereby
attached
and
marked
as
Exhibit
‘A’.
8. The
Prison
service
in
Bwari
is
unable
to
provide
the
medical
services
to
the
2nd
Accused/Applicant.
9. I
was
informed
by
the
2nd
Accused/Applicant
on
the
5th
of
January
2015
at
5.00
pm
at
the
Bwari
Prison
and
I
verily
believe
him
that
he
will
not
a. jump
bail
if
admitted
to
bail
pending
his
trial
b. interfere
with
Police
investigation
c. commit
another
offence
while
on
bail
10. I
am
ready
to
stand
as
surety
for
his
bail
on
such
terms
imposed
by
the
Court.
11. I
swear
to
this
affidavit
in
good
faith
believing
its
content
to
be
true
and
correct
in
accordance
with
the
Oaths
Act.
………………………
Deponent
Sworn
to
at
the
High
Court
Registry,
Abuja
This
…..day
of
……
2014.
BEFORE
ME
………………………………………………………
COMMISSIONER
OF
OATHS
HOW
TO
MOVE
AN
APPLICATION
FOR
BAIL
(Have
to
check
this
out
again)
My
Lord,
I
am
Emokiniovo
Dafe-‐Akpedye
appearing
for
the
accused
person.
My
Lord,
before
this
honourable
Court
is
an
application
for
bail
on
behalf
of
the
accused
persons
1. The
motion
is
brought
pursuant
to
section
35(4)
and
section
36(5)
of
the
1999
Constitution
of
the
Federal
Republic
of
Nigeria
(as
amended),
section
341(2)
&
(3)
of
the
Criminal
Procedure
Code
Act
and
under
the
inherent
jurisdiction
of
this
court
2. My
lord,
we
seek
the
following
reliefs:
3. An
order
of
the
court
admitting
the
2nd
accused
person/applicant
to
bail
pending
the
determination
of
his
trial
4. A-‐my
lord,
our
motion
is
supported
by
a
11
paragraph
affidavit
sworn
to
by
Alhaji
Mohammed
We
rely
on
all
the
paragraphs
of
the
affidavit
particularly
paragraphs
4-‐10.
Accompanying
the
affidavit
is
an
exhibit
marked
EXHIBIT
A.
5. We
have
also
filed
a
written
address
in
support
of
our
application.
We
wish
to
adopt
same
6. My
lord
it
is
trite
law
that
for
an
applicant
to
be
granted
bail,
certain
factors
must
be
established
such
as
the
medical
condition
of
the
accused,
previous
convictions
of
the
accused,
interference
with
the
police
investigation,
the
availability
of
the
accused
for
trial
among
others.
My
Lord,
these
factors
have
been
judicially
noted
in
cases
such
as
Abacha
v
The
State
(state
the
citations),
Bamaiyi
v
State,
Fawehinmi
v
The
State….
My
Lord,
the
applicant
has
satisfied
these
conditions
by
showing
his
renal
condition
is
severe
and
requires
adequate
medical
attention
which
cannot
be
provided
by
the
Bwari
Prison
Service;
that
he
has
no
previous
criminal
conviction,
that
he
will
not
interfere
with
the
police
investigation
or
jump
bail
and
he
has
provided
Samuel
Ikpo
as
surety.
7. We
humbly
pray
this
honourable
court
to
grant
bail
to
the
accused
on
liberal
terms
8. May
it
please
the
court/
we
are
grateful,
my
lord.
IN
THE
HIGH
COURT
OF
THE
FEDERAL
CAPITAL
TERRITORY,
ABUJA
IN
THE
BWARI
JUDICIAL
DIVISION
HOLDEN
AT
BWARI
CASE
NO:
…………….
BETWEEN:
FEDERAL
REPUBLIC
OF
NIGERIA
………..……..
COMPLAINANT/RESPONDENT
V.
1.IKPO
2.BURAGO
SHEHU
…………………
ACCUSED
PERSONS/APPLICANT
COUNTER
AFFIDAVIT
I,
Kene
Omalicha,
Adult,
female,
Nigerian
Citizen
and
Medical
Doctor
with
the
Nigerian
Prison
Service,
Minimum
Prison
Abuja
do
make
oath
and
state
as
follows:
1.
I
am
the
Chief
Medical
Officer
at
the
Nigerian
Prison
Service
Abuja
where
the
1st
Accused/Applicant
has
been
in
custody
and
by
virtue
of
which
I
am
conversant
with
the
facts
of
this
case.
2. I
admit
paragraphs
3
and
4
of
the
Applicant’s
Affidavit
in
support
of
his
bail
application.
3. On
the
30th
day
of
December
2014,
the
1st
Accused/Applicant
was
brought
to
our
clinic
for
check-‐up
from
custody
following
his
complaints.
4. I
ran
a
major
test
on
the
1st
accused/Applicant
to
reveal
any
medical
disorder
in
the
1st
Accused/Applicant,
a
copy
of
the
test
result
is
hereby
attached
and
marked
Exhibit
‘A1’.
5. It
is
untrue
that
the
1st
Accused/Applicant
is
suffering
from
either
renal
failure
or
kidney
stone
disease.
6. The
result
showed
that
the
1st
Accused/Applicant
is
depressed
from
anxiety.
7. The
1st
Accused/Applicant
was
provided
with
relevant
drugs
to
control
the
condition
and
the
Prison
has
the
medical
capacity
to
handle
his
condition.
8. The
Accused/Applicant
has
again
been
brought
for
a
second
check-‐up,
the
result
showed
a
better
emotional
condition,
a
copy
of
the
test
result
dated
the
14
days
of
March
2014
is
hereby
attached
and
marked
Exhibit
‘B1’.
9. The
1st
Accused/Applicant’s
application
for
bail
should
be
refused
in
the
interest
of
justice.
10. I
make
this
statement
in
good
faith
believing
its
content
to
be
true
and
correct
and
in
accordance
with
the
Oaths
Act
2004.
………………………
Deponent
Sworn
to
at
the
High
Court
Registry,
Abuja.
This
…..
day
of
__
2014.
BEFORE
ME
…………………………………………………
…………
COMMISSIONER
FOR
OATHS
a. When
an
accused
is
caught
in
the
act
of
committing
the
offence:
S.
352
of
the
CPL
and
S.
186
of
the
CPCL
b. Can
be
convicted
for
a
lesser
offence
flowing
from
the
offence
he
is
actually
charged
with
and
he
is
deemed
to
have
had
notice
of
it
as
he
had
notice
of
the
greater
offence
charged
with.
NWACHUKWU
VS
.THE
STATE
and
MAJA
VS
THE
STATE;
s.179(1)&2
CPL;
S.218
CPCL;
S.171
ACJL
2.
Right
to
fair
hearing.
See
S.
36(1)&(4)
of
the
1999
Constitution
as
amended;
Effiong
v
State.
Section
36(4)
provides
for
the
right
to
fair
hearing
otherwise
known
as
the
principle
of
natural
justice.
Section
36(1):
In
the
determination
of
his
civil
rights
and
obligations,
including
any
question
or
determination
by
or
against
any
government
or
authority,
a
person
shall
be
entitled
to
a
fair
hearing
within
a
reasonable
time
by
a
court
or
other
tribunal
established
by
law
and
constituted
in
such
manner
as
to
secure
its
independence
and
impartiality.
Section
36(4):
Whenever
any
person
is
charged
with
a
criminal
offence,
he
shall,
unless
the
charge
is
withdrawn,
be
entitled
to
a
fair
hearing
in
public
within
a
reasonable
time
by
a
court
or
tribunal:
(a)
a
court
or
such
a
tribunal
may
exclude
from
its
proceedings
persons
other
than
the
parties
thereto
or
their
legal
practitioners
in
the
interest
of
defence,
public
safety,
public
order,
public
morality,
the
welfare
of
persons
who
have
not
attained
the
age
of
eighteen
years,
the
protection
of
the
private
lives
of
the
parties
or
to
such
extent
as
it
may
consider
necessary
by
reason
of
special
circumstances
in
which
publicity
would
be
contrary
to
the
interests
of
justice;
(b)
if
in
any
proceedings
before
a
court
or
such
a
tribunal,
a
Minister
of
the
Government
of
the
Federation
or
a
commissioner
of
the
government
of
a
State
satisfies
the
court
or
tribunal
that
it
would
not
be
in
the
public
interest
for
any
matter
to
be
publicly
disclosed,
the
court
or
tribunal
shall
make
arrangements
for
evidence
relating
to
that
matter
to
be
heard
in
private
and
shall
take
such
other
action
as
may
be
necessary
or
expedient
to
prevent
the
disclosure
of
the
matter.
a)
nemo
judex
in
causa
sua
meaning
that
one
should
not
be
a
Judge
in
his
own
case
–
a
man
cannot
be
judge
in
his
own
cause
b)
Audi
alterem
partem
meaning
that
the
other
party
should
be
heard
(hear
both
parties)
• The
maxim
means
that
a
person
shall
not
be
a
judge
in
his
own
cause.
This
principle
demands
that
justice
must
not
only
be
done
but
must
be
seen
to
have
been
done
i.e.
there
must
be
no
aorta
of
bias.
The
question
here
is
not
whether
the
judge
was
biased
in
fact.
Rather
it
is
whether
a
detached
bystander
looking
at
what
the
court
or
judge
has
done
will
have
the
impression
that
the
judge
was
biased
• The judge must not only be free from bias but also from any likelihood of bias-‐
• Where
a
person
has
an
interest
in
any
of
the
parties
or
the
subject
matter
or
the
outcome
of
the
proceedings,
he
should
refrain
from
presiding
over
the
matter.-‐
GARBA
V.
UNIVERSITY
OF
MAIDUGURI
(1986):
The
students
were
rioting
and
destroyed
property
and
assaulted
some
people.
The
Chairman
for
the
Panel
of
Inquiry
was
one
of
the
victims
of
the
students’
action.
The
students
were
found
guilty
by
the
Panel
and
expelled.
They
went
to
CT
and
issue
of
whether
there
was
fair
hearing
since
Chairman
was
affected
by
the
act
of
the
students.
The
CT
held
no
fair
hearing
since
he
had
a
personal
interest
in
the
outcome
of
the
proceedings.
• Babatunde
v
State
(2014):
the
Supreme
CT
held
that
fair
hearing
is
only
applicable
in
trial
of
cases
before
a
competent
Ct
of
law
or
panel
or
inquiry
ad
not
pre-‐trial
matters
like
police
investigation
as
the
police
don’t
adjudicate
on
the
matter.
• However,
in
Orugbo
v
Una:
held
that
the
constitutional
provision
has
no
tribal
insinuation
of
the
composition
of
the
tribunal
i.e.
cannot
say
no
fair
hearing
because
the
judge
in
the
case
is
from
a
particular
tribe
unless
he
can
prove
that
because
of
the
judge’s
tribe,
he
is
interested
in
the
subject
matter,
the
appellate
CT
can
hold
that
there
is
no
fair
hearing
• The
principle
of
fair
hearing
cuts
across
all
courts
and
tribunals;
thus
must
be
observed-‐FALODUN
V.
OGUNSE
• Justice
must
not
only
be
done
but
must
be
seen
to
be
done.
The
appellate
CT
is
not
concerned
with
whether
or
not
in
fact
there
was
bias
but
rather
the
surrounding
circumstances
and
infer
whether
there
was
a
likelihood
of
bias
–
reasonable
man
test
–
whether
a
reasonable
person/bystander
would
infer
there
was
bias:
Ajibaiye
v
Ajibaiye
(2007)
•
Court
MUST
listen
to
and
consider
the
evidence
of
both
sides
in
a
matter.
-‐ODESSA
V.
FEDERAL
REPUBLIC
OF
NIGERIA
the
court
suo
motu
raised
the
issue
of
the
validity
of
the
charge
against
the
appellant
and
ruled
on
it
without
giving
the
appellant
the
opportunity
to
respond.
HELD;WRONG
• The
mere
fact
that
a
trial
was
conducted
in
a
speedy
manner
does
not
necessarily
affect
the
accused
person’s
right
to
fair
hearing.
He
must
show
the
speedy
trial
has
adversely
affected
his
case.-‐OYAKHERE
V.
STATE
• A
party
who
alleges
that
he
was
denied
fair
hearing
must
prove
specific
act
or
acts
of
such
denial-‐EJEKA
V.STATE
• Denial
of
right
to
counsel
is
a
breach
of
fair
hearing-‐AKABUEZE
V.STATE
• In
the
case
of
Padawa
&
8
ors
v
Jatau:
it
was
held
that
the
principle
of
audi
alterem
partem
under
the
Constitution
and
the
common
law
entails
not
only
hearing
each
side
but
that
each
side
must
be
given
ample
opportunity
to
present
or
defend
the
case
either
personally
or
through
a
legal
representative
• Section
287
CPL;
Otapo
v
(1987)
5
SCNJ
57
EXCEPTIONS
TO
ABOVE
RULE
ARE
• Where
an
accused
person
chooses
to
remain
silent
during
the
trial
and
his
defence-‐
S.287
CPL
• Where
a
person
refuses/ignores
initiation
of
proceedings
by
a
tribunal-‐NBA
V.AKINTOKUN
–
where
a
party
was
availed
the
opportunity
of
presenting
his
case
or
defending
same
and
he
wilfully
refused
he
cannot
be
heard
to
complain
later
that
he
was
not
given
fair
hearing
• Ex
parte
applications
in
criminal
proceedings.
Fair
hearing
• No
fair
hearing
where
there
is
an
inordinate
delay
of
the
case
–
must
be
concluded
within
a
reasonable
time.
In
Effiom
v
State
(1995):
Supreme
Ct
stated
4
factors
in
relation
to
reasonable
time:
(a)
the
length
of
the
delay
in
the
trial,
(b)
the
reason
given
by
the
prosecutor
for
delay,
(c)
the
responsibility
of
the
accused
asserting
his
rights,
(d)
the
prejudice
to
which
the
accused
is
exposed.
In
Effiom
case,
the
case
lasted
for
5yrs
and
he
was
convicted
for
murder
(conviction
upheld
by
Ct
of
Appeal).
He
contended
at
the
Supreme
CT
that
the
trial
was
too
long.
The
Supreme
CT
held
the
trial
was
not
delayed
because
all
the
adjournments
granted
were
necessary
to
lead
to
proper
adjudication
of
the
matter
• Okeke
v.
State;(the
appellant’s
trial
lasted
about
six
years.
From
the
circumstances
of
the
case,
six
years
was
not
an
unreasonably
long
period.)
• Right
to
fair
hearing
also
entails:
Right
to
be
heard,
easy
access
to
CT,
impartiality
of
the
adjudicating
body,
speedy
trial.
Where
any
of
these
is
lacking,
there
is
absence
of
fair
hearing:
Effiom
v
State
(1995)
• The
accused
person
must
show
that
the
unreasonable
delay
has
occasioned
a
miscarriage
of
justice.
ASAKITIPI
V.
STATE:
(4
year
long
trial
continued
by
judge
after
transfer)
HELD-‐unreasonable-‐
Ozuluonye
&
Ors
v.
The
State;
PUBLICITY
OF
TRIALS.
S.
36(3)
&
(4)
CFRN
1999
provides
that
criminal
trials
are
to
be
held
in
public,
where
the
public
can
have
free
access
S.203
CPL;
S.225
CPCL;
S.208
ACJL
and
EDIBO
V
STATE
(Plea
taken
in
judges
chambers)
Members
of
the
public
are
to
have
free
access
to
the
CT.
A
Judge
cannot
obtain
evidence
in
a
matter
in
absence
of
either
party
to
the
case
(prosecution
and
defence).
All
parties
must
be
given
equal
access
to
the
CT/equal
treatment/equal
opportunity
Publicity
of
trial
means
trial
in
a
place
where
the
public
has
unimpeded
access.
Trial
in
this
sense
starts
from
arraignment
–
Edibo
v
State
(2007)
Exceptions
to
the
above
right
are
(i.e.
where
judge
can
hold
trial
in
camera:
check
the
section
36(4),
204
CPL,
S6(5)
Children
and
Young
Persons
Law,
S13(1)
Recovery
of
Public
Property
(Special
Military
Tribunal)
Decree
1984
i.
In
the
interest
of
defence,
public
safety,
public
order
or
public
morality
e.g.
public
defence
and
public
safety
is
when
state
secrets/information
will
be
revealed
which
will
affect
Nigeria’s
defence
or
security.
ii.
Welfare
of
a
person
who
has
not
attained
the
age
of
18
ii.
When
a
young
person
is
to
give
evidence
in
the
case
of
an
offence,
which
is
contrary
to
decency
or
morality.
iii.
When
it
is
considered
necessary
due
to
special
circumstances
to
protect
the
private
lives
of
the
parties
to
the
proceedings
Proviso
(a)
to
Section
36(4)
CFRN
iv.
When
a
Minister
or
a
commissioner
satisfies
the
court
that
it
will
not
be
in
the
public
interest
for
any
matter
to
be
publicity
disclosed,
the
court
may
hear
the
evidence
in
relation
to
such
matter
in
private.-‐
Proviso
(b)
to
section
36
(4)
CRFN:
Tokunbo
v
Federal
Republic
of
Nigeria:
charge
of
treason
held
in
camera
due
to
public
defence
and
security
(crisis
in
the
Niger
Delta)
Mandara
v
AGF
–
during
Shagari’s
regime
–
trial
held
in
camera.
Charge
of
treason
saying
the
person
wanted
to
takeover
the
government.
v.
The
trial
of
juveniles
are
not
opened
to
the
members
of
the
public-
S.
6(5)
children
and
Young
Persons
Law,
Lagos.(under
17);s.204(2)
CPL
vi.
Where
a
statute
expressly
provides
that
trials
shall
not
be
open
to
members
of
the
public.
e.g.
S.
13(1)
Recovery
of
Public
Property
Special
Military
Tribunal
Decree
1984
prohibits
public
trial
of
alleged
offenders.
3.
RIGHT
TO
THE
PRESUMPTION
OF
INNOCENCE.-
• An
accused
is
presumed
innocent
until
he
is
proven
guilty-‐
S.36(5)
of
the
1999
Constitution
as
amended:
Every
person
charged
before
a
Ct
of
Law
for
any
offence
shall
be
presumed
innocent
until
he
is
proved
guilty.
Section
135
Evidence
Act:
must
prove
a
crime
beyond
reasonable
doubt.
Section
139
EA
2011:
places
the
burden
of
proof
on
the
prosecution
• The
judge
should
not
say
or
write
anything
pointing
to
suspect’s
guilt-‐
OLAWOYE&
ORS
V.
COP,-
The
application
for
bail
was
refused
by
both
the
Magistrates
Court
and
High
Court
on
the
ground
that
the
offence
of
cultism
was
rampant.
HELD-‐
WRONG
• Section
141
-144
Evidence
Act:
provides
for
prove
by
the
accused
of
facts
within
his
knowledge
–an
evidential
burden
of
proof
(the
standard
is
on
the
balance
of
probabilities
and
whoever
asserts
must
prove
so
can
shift
from
side
to
side)
• Eyu
v
State
(1988)
,
Okoro
v
State
(1988)
Held
that
the
proof
required
is
beyond
reasonable
doubt.
Accused
cannot
be
called
upon
to
prove
his
innocence
• Okoro
v
State
(1988):
7
people
were
trailed
for
murder
and
the
3rd
accused
was
discharged
after
raising
the
plea
of
no
case
to
answer.
The
others
were
asked
to
enter
their
defence.
Appellate
CT
held
since
the
crime
was
committed
jointly
and
one
was
discharged
due
to
no
case
to
answer.
Why
were
the
others
not
discharged?
The
CT
held
that
the
judge
had
asked
them
to
prove
their
innocence
which
was
wrong
• The
defence
of
the
accused
must
be
properly
considered
however
weak
or
fanciful
or
bereft
with
lies
as
they
may
appear
to
be-‐AGBITI
v.
NIGERIAN
NAVY
I. The
accused
is
to
prove
facts
within
his
special
knowledge
e.g.
the
defence
of
insanity,
intoxication
etc
-‐
Proviso
to
S.
36(5);
S.
139
(3)
(c)
Evidence
Act
2011
II. A
convict
appealing
against
his
conviction
is
no
longer
presumed
innocent
4.
RIGHT
TO
ADEQUATE
TIME
AND
FACILITIES
FOR
HIS
DEFENCE.-
S.
36(6)
(B)
OF
THE
1999
CONSTITUTION
AS
AMENDED.
• S36(6)(b):
“Every
person
who
is
charged
with
a
criminal
offence
shall
be
entitled
to
be
given
adequate
time
and
facilities
for
the
preparation
of
his
defence”
• The
time
referred
to
here
relates
not
only
to
the
1st
day
to
which
the
case
is
slated
for
defence
but
includes
other
reasonable
adjournment
that
may
be
sought
by
the
defence.
Accused
to
provide
reasons
for
adjournment,
as
CT
is
not
bound
to
grant
incessant
adjournments.
Udo
v
The
State
(1988)
held
that
a
capital
offence,
an
adjournment
to
secure
the
services
of
a
counsel
or
if
his
counsel
is
absent,
it
should
be
granted.
Where
accused
cannot
afford
the
services
of
a
counsel
in
a
capital
case,
one
must
be
appointed
for
him
because
the
law
states
that
he
should
not
defend
himself
in
a
capital
offence
• The
Court
is
to
grant
adjournment
to
the
accused
in
order
to
secure
a
Counsel
or
witnesses
for
non-‐capital
offences.
He
cannot
state
that
a
counsel
is
not
mandatory
• Shenife
v
State:
CT
has
utmost
discretion
to
grant
adjournment
and
will
not
grant
a
frivolous
one
• Gokpa
v
IGP
(1961):
case
was
stood
down
but
the
nearest
lawyer
was
23km
away
and
thus
it
was
held
that
the
time
frame
for
him
to
get
a
lawyer
was
insufficient
• Yanor
v
State:
the
court
may
not
countenance
unreasonable
request
for
adjournment
• The
accused
is
to
be
given
copies
of
the
Charge,
statements
of
the
witnesses
and
proof
of
evidence
by
the
Prosecution
–
GOKPA
V.IGP
• Where
a
witness
is
absent
and
an
adjournment
is
sought,
the
accused
must
satisfy
the
Court
that:
(Yanor
v
State)
a The
witness
is
material
to
his
case
b The
accused
has
not
been
guilty
of
negligence
in
procuring
the
witnesses
attendance
c There
is
reasonable
expectation
that
he
can
procure
the
witness
at
the
next
adjourned
date
i.e.
he
can
procure
his
attendance
for
a
certain
date.
ORITSE-YANOR
&
ANOR.
VS.
THE
STATE.(Several
adjournments)
d He
has
not
been
granted
adjournments
several
times
to
procure
this
particular
witness:
Yanor
v
State
• If
a
suspect
is
in
the
Police
station,
he
is
to
be
allowed
to
see
his
Counsel
who
will
assist
him
in
preparing
his
defence.
• Facilities
means
the
accused
must
be
given
the
necessary
documents
to
prepare
for
his
case
–
e.g.
witness
statements
and
any
other
material
that
will
assist
the
accused
in
preparing
for
his
defence
• If
an
accused
is
standing
trial
for
murder
or
any
capital
offence
and
he
is
not
represented
by
a
Counsel,
the
Court
should
ensure
that
one
is
provided
for
the
accused:
S.
352
of
the
CPL,
S.
186
of
the
CPCL
JOSIAH
VS.
THE
STATE:
accused
should
not
defend
himself
in
a
capital
case
QUERY-‐since
adjournment
is
not
mandatory,
does
the
accused
in
a
murder
case
have
a
right
to
complain
if
he
neglects
the
case
after
several
adjournments.
5.
RIGHT
TO
A
COUNSEL.
-S.
36(6)
(c)
of
the
1999
Constitution
as
amended.
• Every
person
who
is
charged
with
a
criminal
offence
shall
be
entitled
to
defend
himself
in
person
or
by
legal
practitioners
of
his
own
choice.
• A
party
cannot
be
denied
the
right
to
counsel
of
his
choice
neither
can
a
counsel
be
imposed
on
him
if
he
chooses
to
defend
himself.
s390
CPCL
and
s28
Area
Court
Edict
were
declared
as
nullities
in
Uzodinma
v
COP
(1982):
whether
section
28
Area
Court
Edict
and
s390
CPCL
providing
that
legal
practitioners
cannot
appear
in
Area
CTs
was
constitutional.
CT
held
this
was
unconstitutional
as
legal
practitioner
can
appear
in
any
CT
in
Nigeria
• ECWA
v
Ijesha
(1999):
the
SAN
Privileges
and
Functions
Rule
was
not
unconstitutional
and
SANs
cannot
appear
in
inferior
CTs.
This
rule
relates
to
an
honorary
role
and
the
lawyer
who
is
a
SAN
has
the
option
to
refuse
the
title
of
a
SAN
if
he
wants
to
appear
in
a
lower
CT.
(Note:
Magistrate
CT
Law
of
Lagos
State
2009:
all
lawyers
can
appear
before
the
Magistrate
CT
notwithstanding
any
other
law)
• But
note
the
Supreme
Ct’s
observations
in
Awolowo
v
Usman
Sarki
(1966):
held
that
such
a
counsel
(i.e.
the
one
chosen
by
the
accused)
must
not
be
subject
to
any
disability.
Awolowo
wanted
a
foreign
counsel
to
defend
him
and
the
counsel
was
denied
visa
into
Nigeria
and
Awolowo
stated
that
his
constitutional
right
had
been
violated.
Ct
rejected
this
contention
since
the
counsel
was
subject
to
a
disability
• In
ALL
capital
offences,
legal
representation
is
mandatory-‐
Mandatory
Legal
Representation
in
Capital
Offences
S.
352
of
the
CPL,
S.
186
of
the
CPCL,
S.
263
of
the
ACJL
JOSIAH
VS.
THE
STATE:
tried
for
robbery
and
murder.
The
appellate
CT
held
not
being
represented
by
legal
practitioner
was
a
denial
of
his
right
to
counsel.
CT
is
under
an
obligation
to
provide
one
for
him
• An
accused
person
unrepresented
by
counsel
in
NON
capital
offences
should
be
informed
of
his
right
to
legal
representation
QUALIFICATION/LIMITATION-‐If
the
accused
person
chooses
a
counsel
who
is
subject
to
other
limitations
and
such
limitations
prevent
the
counsel
from
defending
him,
he
cannot
complain
of
being
denied
to
counsel
of
his
choice-‐
AWOLOWO
&
ORS
v.
MINISTER
ON
INTERNAL
AFFAIRS
&
ORS
EXCEPTIONS
TO
THE
ABOVE
RIGHT
ARE:
The
Counsel
is
under
a
legal
disability
or
the
right
is
in
abeyance
e.g.
the
Counsel
is
disqualified
from
practicing
or
has
not
paid
his
practicing
fees
or
that
the
Counsel
is
from
abroad
who
has
not
fulfilled
the
immigration
requirements/
conditions
to
be
allowed
to
appear
in
Nigerian
Courts.-‐
S.
8(1)
of
the
LPA
;
AWOLOWO
V.
MIN
.INTERNAL
AFFAIRS&
ORS
6.
RIGHT
TO
EXAMINE
PROSECUTION’S
WITNESSES
S.
36(6)
(d)
of
the
1999
Constitution
as
amended.
• Every
person
who
is
charged
with
a
criminal
offence
shall
be
entitled
to
examine,
in
person
or
by
his
legal
practitioners,
the
witnesses
called
by
the
prosecution
before
any
court
or
tribunal
and
obtain
the
attendance
and
carry
out
the
examination
of
witnesses
to
testify
on
his
behalf
before
the
court
or
tribunal
on
the
same
conditions
as
those
applying
to
the
witnesses
called
by
the
prosecution
• Where
the
Court
refused
the
accused
to
cross-‐examine
or
re-‐call
witnesses
that
tendered
a
written
document
in
evidence,
it
is
a
breach
of
this
right.
• Where
the
CT
gives
the
opportunity
to
examine
and
he
does
not,
he
cannot
later
on
appeal
state
that
he
was
denied
this
right
• TULU
VS.
BAUCHI
NATIVE
AUTHORITY
(1965)
(court
asked
questions):
The
prosecution
called
many
witnesses.
The
CT
did
not
allow
the
accused
to
cross
examine
any
of
the
prosecution’s
witnesses.
Instead
the
judge
put
several
questions
to
the
witnesses.
Held
that
this
was
a
gross
violation
of
the
constitutional
right
under
s36(6)(d)
• IDRISU
Vs
THE
STATE.
NB-‐(EXAMS)-‐the
court
is
not
allowed
to
call
witnesses,
etc
when
there
is
no
prosecution-‐
s.189(2)
CPCL
EXCEPTIONS
TO
THE
ABOVE
ARE:
a. If
the
accused
or
his
Counsel
asks
irrelevant
questions
b.Questions
are
asked
to
harass
a
witness.
S.
224-226
of
the
Evidence
Act
2011.
7.
Right
to
an
interpreter.
-S.
36(6)
(e)
of
the
1999
Constitution
as
amended.
• “Every
person
charged
with
a
criminal
offence
shall
be
entitled
to
without
payment,
the
assistance
of
an
interpreter
if
he
cannot
understand
the
language
used
at
the
trial
of
the
offence”
• If
an
accused
person
does
not
understand
the
language
of
the
Court
(English),
he
is
to
be
provided
with
an
interpreter
at
no
cost
to
the
accused.
Where
one
is
required
and
not
provided,
on
appeal
such
proceedings
will
be
quashed.
• The
interpreter
must
be
competent
in
both
languages.
AJAYI
VS.
ZARIA
NATIVE
AUTHORITY
(1964):
the
interpreter
was
not
competent
to
interpret
in
Yoruba.
The
appellate
CT
quashed
the
conviction.
The
provision
of
the
interpreter
is
at
no
cost
to
the
accused
Anyanwu
v
State
(2002):
where
an
interpreter
is
required
and
found
to
be
incompetent,
any
conviction
based
on
it
is
liable
to
be
quashed
(as
this
is
the
same
as
having
no
interpreter)
• The
interpreter
must
interpret
whatever
is
said
by
the
complainants,
witnesses
and
the
court
sentence
by
sentence.
The
interpreter
shall
interpret
whatever
it
is
said
immediately
it
is
said.
He
should
not
wait
until
everything
is
said
and
just
interprets
what
he
remembers
-‐ZARIA
NATIVE
AUTHORITY
V.
BAKARI
• Where
the
accused
fails
to
inform
the
CT
that
he
does
not
understand
English
language,
he
cannot
complain
later
that
he
does
not
understand
English
(Udose
v
State
(2007):
failure
to
provide
an
interpreter
will
be
treated
as
a
mere
irregularity).
At
the
point
of
arraignment,
the
Registrar
normally
asks
whether
the
accused
speaks
and
understands
English
Language.
It
is
at
this
point
that
the
accused
should
inform
CT
that
he
cannot
understand
or
speak
English
• The
court
must
ensure
that
the
interpreter
does
not
have
any
relationship
with
the
parties
or
any
other
connection
to
the
case
-R.
V.
OGUCHA
• -‐ZARIA
NA
V.
BAKARI
• Interpreter
must
be
made
available
at
no
cost
to
the
accused
THE
EFFECT
OF
A
FAILURE
TO
PROVIDE
AN
INTERPRETER.
–
Proceedings
will
be
null
and
void.
The
accused’s
conviction
will
be
quashed
and
a
re-‐
trial
ordered.
• The
accused
is
to
inform
the
Court
timeously
that
an
interpreter
is
needed
otherwise
he
is
deemed
to
have
waived
it.
THE
STATE
v.
GWONTO
• An
interpreter
in
any
proceedings
before
the
court
or
JP
must
be
sworn
before
interpreting
while
under
the
CPCL
he
must
be
bound
by
oath
or
affimation-‐
s.242(1)CPCL
• Interpreter
cannot
be
used
where
the
accused
person
understands
the
language
of
the
court-‐
ONYIA
V.
STATE
• Where
an
accused
is
represented
by
counsel
at
trial,
and
they
NEVER
raised;
it
cannot
be
a
ground
for
setting
a
conviction
aside.
• The
issue
of
denial
of
interpreter
can
only
be
raised
on
appeal
if
it
was
claimed
at
the
court
of
trial
and
denied.
LIMITATION-it
is
available
only
on
request
of
the
accused-
THE
STATE
V.
GWONTO
• The
first
trial
must
have
been
on
a
criminal
charge:
R
v
Jinadu
–
police
officer
was
tried
in
a
Police
Orderly
Room
for
the
use
of
unnecessary
violence
on
persons
in
his
custody.
He
was
acquitted
but
downgraded
in
rank.
Later,
he
was
brought
up
on
criminal
charges
of
assault
in
a
Ct
of
law
under
the
Criminal
Code.
Trial
Court
and
Ct
of
Appeal
rejected
his
plea
of
autre
fois
acquit
because
his
previous
proceedings
was
disciplinary
under
the
rules
of
the
police
force
and
not
a
competent
court
of
law
• The
accused
person
has
been
tried
by
a
competent
Court
of
criminal
jurisdiction.
CHIEF
OF
AIR
STAFF
V.
IYEN;
R
v
Hodge
UMEZE
V.
STATE
(murder
trial
at
magistrate
court).
Magistrate
Court
has
no
jurisdiction
to
try
capital
offences
• The
charge
must
be
for
the
same
offence
known
to
law
or
offence
having
same
ingredients
with
the
previous
offence.
Should
be
the
same
exact
offence.
Also
an
offence
of
which
the
accused
person
could
have
been
convicted
of
at
the
first
trial,
although
he
was
not
charged
with
that
offence:
R
v
Jinadu
• The
accused
was
either
convicted
or
acquitted
after
the
trial.
Where
case
is
struck
out
for
want
of
diligent
prosecution,
it
amounts
to
a
discharge.
Termination
by
nolle
prosequi
or
discharge
(Inquiry/
before
defence)
under
S.75
CPL
not
applicable.
Nolle
prosequi
is
not
an
acquittal
but
just
a
discharge.
NOTE(EXAMS)-‐Where
no
case
submission
is
rightly
upheld,
it
is
a
discharge
on
merit
and
therefore
an
acquittal-‐EXCEPT
in
magistrate
court
in
the
NORTH-‐S.159(3)
CPCL.
Note-‐
Generally,
an
accused
person
who
is
not
found
guilty
of
the
offence
with
which
he
was
charged
may
be
convicted
of
a
lesser
kindred
offence.-‐
S.
179
(2)
CPL;
S.
218
(2)
CPCL-‐An
accused
person
can
plead
autrefois
acquit
on
the
ground
that
the
court
of
first
trial
failed
to
convict
him
of
the
lesser
offence
with
which
he
is
now
charged.
However,
the
lesser
offence
must
be
related
to
the
offence
with
which
he
was
earlier
tried.
NOTE
CAREFULLY-‐
This
plea
intends
to
prevent
double
trial
and
double
conviction
not
necessarily
double
punishment-‐
S.
170
(2)
Armed
Forces
Act
1993:
a
person
tried
in
a
CT
martial
can
be
tried
again
in
a
regular
civil
court
but
the
later
court
should
take
cognisance
of
the
penalties
imposed
in
the
court
martial
(does
not
apply
to
military
criminal
offences)
EXCEPTION
-‐where
the
accused
will
not
be
considered
to
be
tried
twice
is
an
Order
of
re-‐
trial
by
a
superior
Court
or
Appeal
Court.
S.19&23
Court
of
appeal
act;
S.26
Supreme
Court
ACT
9.
Right
against
trial
and
conviction
on
a
retroactive
legislation
.
S.
36
(8)
of
the
1999
Constitution
(FRN)
as
amended:
“No
person
shall
be
held
to
be
guilty
of
a
criminal
offence
on
account
of
any
act
or
omission
that
did
not,
at
the
time
it
took
place,
constitute
such
an
offence,
and
no
penalty
shall
be
imposed
for
any
criminal
offence
heavier
than
the
penalty
in
force
at
the
time
the
offence
was
committed”
• “No
person
who
is
charged
with
a
criminal
offence
shall
be
compelled
to
give
evidence
at
the
trial”.
This
right
to
silence
is
at
the
point
of
opening
his
defence.
(This
does
not
mean
that
he
is
not
speaking
in
CT
but
he
is
not
bringing
a
defence
to
his
case).
Also
this
right
to
silence
is
different
from
standing
mute
at
the
point
of
arraignment
• This
right
to
silence
is
also
replicated
in
other
statutes
–
Accused
is
a
competent
but
not
compellable
witness
for
the
defence
Ss.
236(1)
CPCL;
S.287
(1)CPL;
S.
244
ACJL
• Similarly,
S.
180
EVIDENCE
ACT
2011
provides
that
an
accused
person
is
a
competent
witness
for
the
defence
but
he
is
not
a
compellable
witness.
• He
may
decide
to
remain
silent
and
not
say
anything
in
his
defence
till
the
end
of
the
proceedings.
He
may
even
decide
not
to
call
witnesses.
• When
an
accused
person
exercises
his
right
to
silence,
the
Prosecutor
cannot
comment
on
the
accused
person’s
failure
to
give
evidence
in
his
defence
as
an
admission
of
guilty
(in
that
it
is
an
admission
of
guilt)
• However,
the
court
is
entitled
to
comment
and
draw
necessary
inferences
from
the
accused
person’s
silence:
SUGH
v.
THE
STATE.
• See
section
181
Evidence
Act:
the
CT,
prosecution
and
any
other
party
can
comment
but
must
not
suggest
guilt
due
to
the
failure
to
give
evidence.
The
CT
is
allowed
to
draw
necessary
inferences
from
the
accused
person’s
silence
in
the
case
where
the
prosecution
has
brought
cogent
evidence
but
the
accused
does
not
reply.
• Garba
v
State,
s236(1)
CPCL
• Igabele
v
State
• This
right
may
avail
an
accused
where
it
is
manifestly
clear
that
the
prosecution
has
failed
to
prove
the
guilt
of
the
accused.
• NOTE:
On
appeal,
the
Appellant
Court
can
comment
on
the
silence
of
the
accused
person-‐GARBA
v.
THE
STATE
DETRIMENTS
OF
THE
RIGHT
TO
SILENCE
• Implied
admission
of
Guilt-‐S.181
of
the
Evidence
Act.
• Where
he
remains
silent,
it
means
he
is
resting
his
case
on
that
of
the
Prosecution.
• And
as
such,
must
accept
responsibility
for
his
action
as
inferred
from
his
conduct
in
the
prevailing
circumstances.
MBANG
v.
STATE
• In
IGABELE
v.
STATE:
the
Supreme
Court,
warned
that
it
could
be
RISKY
to
hold
on
to
that
right
where
an
explanation
from
him
could
have
made
a
difference.
NOTE
THE
FOLLOWING:
• The
right
to
silence
is
a
constitutional
right
which
commences
at
the
close
of
the
Prosecution’s
case
when
the
accused
person
is
called
upon
to
make
his
defence.-
S.
36(11)
has
to
do
with
Right
to
silence
during
Trial
while
S.
35(2)
is
right
of
a
suspect
to
remain
silent
after
arrest.
• The
right
to
silence
does
not
apply
during
the
stage
of
taking
plea.
Where
the
accused
person
keeps
silent
after
charge
is
read
and
explained
to
him,
the
Court
will
determine
whether
his
KEEPING
MUTE
was
out
of
MALICE
or
as
a
result
of
INSANITY
NB
==#
Right
to
silence
should
not
be
confused
with
a
No
Case
Submission
Note:
Venue
of
the
CT
–
in
an
uncompleted
building
in
the
outskirts
of
Lagos.
Constitutional
issue
in
relation
to
the
venue
–
wherever
the
judge
sits
is
the
courtroom
(e.g.
in
trying
to
de-‐
congest
the
prisons,
the
High
CT
judges
even
sit
in
prisons.
It
is
the
judge
and
not
the
building
per
se
that
constitutes
the
CT
for
the
purpose
of
the
proceedings
–
provided
all
the
parties
in
the
matter
are
aware
of
the
venue.
Judge
does
not
have
to
give
reasons
for
the
change
of
venue
(not
for
lawyer
to
question
this)–
judge
has
discretion
as
to
where
to
sit.
But
would
be
ridiculous
for
the
Ct
to
take
proceedings
to
his
bedroom
WEEK
13-
TRIAL
1-ATTENDANCE
OF
PARTIES
AND
ARRAIGNMENT
WHAT
IS
TRIAL
-
A
judicial
examination
of
witnesses.
Criminal
trial
starts
with
ARRAIGNMENT
and
ends
with
SENTENCING.
Trial
includes
arraignment,
examination
in
chief
of
witnesses.
Cross
examination,
re-‐examination,
tendering
of
exhibits,
addresses
of
counsel,
judgment,
allocutus
and
sentence
B-‐PRELIMINARIES
TO
TRIAL
Sittings
of
the
court-refer
to
week
3.
Courts
sits
at
9am.
Mon-‐Sat
are
juridical
days.
In
practice,
CT
does
not
sit
on
Saturdays.
In
Lagos
(some
magistrate
CTs)
Sat
is
sometimes
a
non-‐juridical
day)
-‐
see
s40
MCL
(Lagos)
2009:
designates
some
courts
to
sit
on
Saturday
or
some
not
to
sit
on
Saturdays.
Sunday
and
public
holidays
are
non-‐juridical
days.
CT
can
only
sit
on
juridical
days.
With
the
agreement
of
counsel,
courts
can
sit
on
non-‐juridical
days.
See
Ososanmi
v
COP
(1952):
The
defence
counsel
said
he
could
get
vital
witnesses
in
the
case
on
a
non-‐juridical
day.
The
CT
agreed
to
it
and
asked
that
trial
be
held
on
a
non-‐
juridical
day.
The
defence
was
convicted.
Defence
then
filed
an
appeal
based
on
the
fact
that
the
court
sat
on
a
non-‐juridical
day.
Held
that
proceedings
were
conducted
with
the
agreement
of
parties
so
it
was
valid
Publicity
of
trials-refer
to
week
11&12.
S36(4)
Constitution,
s203
CPL,
s225(1)
CPCL,
s200
ACJL.
Exceptions:
CT
may
sit
in
private
where
statute
authorised
it
e.g.
juveniles.
See
36(4)
Constitution:
the
public
may
be
excluded
on
grounds
of
public
policy,
public
decency
or
expediency.
S203
CPL,
ss25(2)
CPCL,
s201
ACJL.
Where
the
Minister
satisfied
the
CT
that
it
will
not
be
in
the
public
interest
for
the
proceedings
to
be
held
in
public,
it
will
be
held
in
camera:
Mandara
v
AG
Federation
(1984)
4
SC
8.
Where
the
evidence
of
a
person
who
has
not
attained
the
age
of
17
is
to
be
held
in
relation
to
the
offence
against
morality:
see
s204(2)
CPL.
This
will
be
held
in
camera.
Public
may
be
excluded
in
the
interest
of
public
safety,
defence,
public
order,
and
public
morality:
FRN
v
Asari-Dokubo.
Welfare
of
person
(s36(4)
Constitution)
(A)PRESENCE
OF
THE
ACCUSED
PERSON
AT
THE
TRIAL
The
accused
MUST
be
present
at
every
sittings
of
the
Court
from
arraignment
to
sentence.
There
is
no
trial
in
absence
of
an
accused
in
Nigeria:
S.
210
of
the
CPL,
S.
153
of
the
CPCL,
S.
208
of
the
ACJL
and
ADEOYE
VS.THE
STATE
(1999).
Trial
is
a
nullity
if
the
accused
is
trialled
in
absentia
EXCEPTIONS
WHERE
AN
ACCUSED’S
PRESENCE
WILL
BE
DISPENSED
ARE:
a. He
misconducts
himself
in
the
Court
by
interrupting
the
proceedings
thus
rendering
his
trial
in
his
presence
impracticable/impossible:
S.208
ACJL;
S.210
CPL;
S.153
CPCL.
E.g.
–violence
etc-‐note
that
APPEARANCE
or
REPUTATION
is
irrelevant.
b. He
has
pleaded
guilty
in
writing
and
or
appears
in
court
and
pleads
guilty
through
his
counsel
represented
by
a
counsel
on
a
Charge
whose
penalty
does
not
exceed
N100
fine
or
6
months
imprisonment
or
both:
S.
100
of
the
CPL
(SOUTH
ONLY)
c. Where
the
accused
person
is
of
unsound
mind
or
he
stands
mute
before
the
CT:
s223(2)
CPL,
s320(2)
CPCL
&
217(2)
ACJL.
Absence
of
the
accused
person
in
the
enquiry
as
to
the
sanity
of
the
accused
is
allowed.
d. The
appearance
of
an
accused
person
against
whom
A
SUMMONS
is
issued
may
be
dispensed
with
if
he
has
legal
representation
or
pleads
guilty
in
writing:
S.
154(2)
of
the
CPCL
(NORTH
ONLY).
The
accused
person
must
be
present
for
SENTENCING—S.154(3)
CPCL
ORDERS
THE
COURT
CAN
MAKE
IF
AN
ACCUSED
IS
ABSENT
WITHOUT
COGENT
AND
COMPELLING
REASONS
a. Issue
a
Bench
warrant
for
his
arrest
if
he
is
already
on
bail
b. Issue
a
production
warrant
to
the
Prison
officers
to
bring
him
to
the
Court
if
the
accused
is
in
Prison
custody.
c. Issue
a
warrant
of
arrest
against
the
accused
person
(If
in
respect
of
summons
-‐
s.96
CPL)
d. Revoke
his
bail
if
the
accused
has
been
admitted
to
bail.
(B).
ABSENCE
OF
THE
COMPLAINANT
FOR
THE
TRIAL:
When
the
Complainant
(Police
prosecutor
or
law
officer,
office
of
the
AG)
is
absent
in
Court
for
the
trial;
the
Court
may
do
any
of
the
following:
S.
236
of
the
ACJL,
S.
280
of
the
CPL
and
S.
165
of
the
CPCL.
a. Dismiss
the
action
if
satisfied
that
the
prosecution
had
adequate
information
of
the
trial.
In
that
case,
the
accused
will
be
discharged
for
want
of
diligent
prosecution
b. If
a
cogent
reason
is
given
for
the
absence,
the
Court
will
adjourn
the
hearing
to
another
date.
E.g.
an
emergency
happened
on
the
way
to
court
c. If
it
is
a
NON
CAPITAL
OFFENCE
and
the
reason
for
absence
is
not
cogent,
the
court
will
proceed
with
the
trial
d. If
it
is
a
CAPITAL
OFFENCE,
court
may
adjourn
because
judges
are
reluctant
to
dismiss
such
matters-‐
UDOFIA
V.
STATE
(Court
discountenanced
complainant’s
request
for
adjournment
in
a
capital
matter)-‐CONVICTION
QUASHED
(C).
ABSENCE
OF
BOTH
PARTIES
IN
A
CRIMINAL
MATTER
a. Issue
a
bench
warrant
for
the
arrest
of
the
accused
person
b. Order
that
the
complainant
must
be
present
at
the
next
adjourned
date.
c. Dismiss
the
case
d.
Additionally,
order
for
cost
from
the
parties
e. Order
that
notices
be
issued
to
the
Complainant
to
attend
Court
otherwise
the
accused
will
be
discharged.
S.
237
of
the
ACJL
and
S.
282
of
the
CPL.
Adjournment
may
be:
May
be
at
the
instance
of
the
Court,
at
the
instance
of
the
prosecution,
at
the
instance
of
the
accused
or
his
counsel,
at
the
discretion
of
the
CT
Appearances
• Prosecution
to
announce
appearance
first
–
because
prosecution
initiated
the
case
• Thereafter
counsel
to
the
accused
to
announce
appearance
Capital
offences
• There
is
mandatory
legal
representation
for
capital
offences:
s352
CPL,
s186
CPCL,
Josiah
v
State,
Udofia
v
State
D)
ATTENDANCE
OF
VITAL
WITNESSES
• Both
parties
are
entitled
to
determine
the
number
of
witnesses
to
call.
• No
particular
number
of
witnesses
is
required
to
establish
a
case
nor
must
the
Prosecution
call
all
the
witnesses
listed
in
his
information.
It
can
call
only
one
witness
if
it
is
sufficient.
–
ADAJE
VS.
THE
STATE:
both
parties
didn’t
call
a
particular
witness.
CT
of
Appeal
berated
the
court
and
prosecution
and
defence
counsel
as
there
is
no
way
justice
could
be
done
without
calling
that
witness.
The
witness
was
vital
in
deciding
whether
or
not
the
accused
killed
the
victim.
Accused
alleged
that
he
was
held
down
and
someone
was
told
to
beat
him
up
(this
person
was
not
called).
JAMMAL
V.
STATE
The
Court
may
compel
the
attendance
of
witnesses
by
issuance
of
any
of
the
following:
Every
person
who
is
charged
with
a
criminal
offence
shall
be
entitled
to
defend
himself
in
person
or
by
a
legal
practitioner
of
his
choice
–
section
36(6)(c)
of
the
1999
Constitution;
section
211
of
the
Criminal
Procedure
Law
(CPL);
Awolowo
&
Ors
v.
Usman
Sarki
&
Ors
(1962)
L.L.R.
177.
Where
a
counsel
is
unable
to
attend,
the
court
must
be
informed
of
the
cogent
reason
to
justify
his
absence;
or
another
counsel
is
briefed
to
take
up
the
matter.
The
danger
inherent
in
counsel
being
absent
in
court
without
reasonable
excuse
is
the
exposure
of
the
accused
to
the
task
of
defending
himself
–
Shemfe
v.
The
C.O.P
(1962)
All
NLR
87;
Gokpa
v.
The
C.O.P.
(1961)
All
NLR
424.
In
a
capital
offence,
the
accused
shall
be
assigned
a
counsel
to
represent
him.
–
Section
186
of
the
CPL,
and
section
352
of
the
CPL.
In
Josiah
v.
The
State
(1985)
1
NWLR
(Pt.
1)
125,
where
(in
a
capital
offence)
the
accused
was
not
represented
by
counsel,
the
court
held
that
it
amounted
to
denying
him
a
fair
trial;
and
this
vitiated
the
trial.
It
should
be
noted
that
under
sections
6
and
8
Legal
Aid
(Amendment)
Act
2011,
an
accused
person
whose
annual
income
does
not
exceed
N18,000
is
entitled
to
free
legal
representation
in
respect
of
criminal
proceedings.
There
is
the
need
for
a
counsel
to
be
present
in
court
and
conduct
his
case
diligently
especially
where
an
accused
is
charged
with
a
capital
offence.
It
has
been
held
by
the
Supreme
Court
that
where
a
counsel
does
not
appear
to
conduct
his
case
or
absents
himself
when
it
matters,
e.g.
in
a
murder
charge,
a
conviction
of
the
accused,
who
is
forced
to
conduct
his
case
may
not
hold;
for
it
will
amount
to
a
denial
of
fair
trial
–
Udofia
v.
The
State
(1988)
7
S.C.
N.
J.
188;
Okojie
&
Ors.
v.
The
State
(1989)
1
NWLR
(Pt.
100)
642,
where
the
accused
were
charged
with
armed
robbery.
During
the
trial
their
counsel
did
little
or
no
cross
examination
of
the
prosecution
witnesses,
despite
damaging
incriminating
evidence
against
the
accused
persons
and
they
were
convicted.
The
Supreme
Court
lamented
on
the
manner
the
case
was
handled,
more
so,
when
it
was
a
matter
of
life
and
death.
DUTIES
OF
COUNSELS
AND
PRESIDING
JUDGES
IN
CRIMINAL
TRIALS
(A.)
DUTIES
OF
A
PROSECUTING
COUNSEL
i)
To
be
candid
and
fair,
not
trying
to
secure
conviction
by
all
means.
R.
37
(4)
of
the
RPC,
ENAHORO
VS.
STATE.
ii)
He
is
not
to
withhold
the
existence
of
any
adverse
decision
on
a
point
of
Law
favourable
to
the
accused.
–ANANI
VS.
R.
iii)
He
must
make
available
to
the
accused
person
evidence
favourable
to
the
accused.
STATE
VS
ODOFIN
BELLO;
Rule
32
RPC;
R
v.
Sugarman
iv)
A
prosecutor
must
be
present
at
the
trial
of
the
accused
at
any
time
the
case
comes
up:
R.
14
RPC.
v)
Duty
not
to
forum
shop/to
avoid
forum
shopping-‐It
is
unprofessional
for
a
Prosecutor
to
look
for
a
convenient
court
where
the
accused
should
be
tried:
Ibori
v.
FRN
vi)
The
Prosecuting
Counsel
has
a
duty
to
call
and
examine
all
material
witnesses
whether
their
testimony
would
be
favourable
to
the
case
of
the
Prosecution
or
not.
vii)
Duty
to
conduct
case
with
due
diligence.
Counsel
must
be
fully
prepared
to
go
on
with
the
case
and
not
seek
unnecessary
adjournment
thereby
wasting
the
court’s
time.
viii)
Duty
to
make
available
to
the
accused
person
proof
of
evidence:
UKET
V.
FRN
ix)
Duty
to
avoid
frivolous
institution
of
criminal
proceedings
R.
37
(5)
RPC
provides
that
a
public
prosecutor
shall
not
institute
a
criminal
charge
unless
the
charge
is
supported
by
probating
evidence.
x)
Prosecution
should
not
be
too
relaxed
when
a
plea
of
guilty
is
entered.
He
must
furnish
the
court
with
full
facts-‐OMOJU
V.FRN.
(B.)
DUTY
OF
THE
DEFENCE
COUNSEL
a. He
is
not
to
return
the
brief
of
a
person
charged
with
a
capital
offence.
R.
24(1)
of
the
RPC
(It
is
the
duty
of
a
lawyer
to
accept
any
brief
in
the
court
in
which
he
professes
to
practice
provided
the
proper
professional
fee
is
offered
unless
there
are
special
circumstances
which
justify
his
refusal)
and
R
VS.
UZORUKWU.
Even
where
accused
confesses
to
guilt
to
his
counsel,
it
is
unethical
for
counsel
to
disclose
same
or
to
withdraw
from
handling
his
defendant.
b. He
is
to
undertake
the
defence
of
a
person
charged
with
a
capital
offence
competently
and
with
dedication:
37(1)
&(2)
of
the
RPC
and
JOSIAH
VS.
STATE.
In
UDOFIA
VS
STATE,
it
was
held
that
a
youth
Corp
Member
has
no
experience
to
be
assigned
to
defend
an
accused
on
a
capital
offence.
UDO
V.STATE;
R.14&16
RPC.
c. Duty
to
be
present
in
court.
The
Defence
Counsel
must
be
personally
present
in
court
especially
where
the
charge
against
his
client
is
one
for
murder:
Rule
37(1)
d. When
client
discloses
a
fact
to
a
counsel,
it
is
unethical
to
disclose
it
to
anyone
without
the
express
permission
of
the
client,
-‐R.
19
RPC
e. Where
the
accused
person
admits
guilt
and
confessed
to
having
committed
the
offence
the
Defence
counsel
should
not
put
up/cook
up
adverse/false
evidence
to
show
the
accused
as
innocent:
R.15(3)
RPC
(C)
DUTY
OF
A
PRESIDING
JUDGE
a. The
Judge
must
be
an
impartial
arbiter.
The
Judge
or
Magistrate
in
a
criminal
case
must
see
himself
and
be
seen
as
a
neutral,
unbiased
and
fair
umpire
b. Not
to
interject
too
much
or
put
damaging
questions
to
the
accused
leading
to
conviction.
OKODUWA
VS.
THE
STATE,
ONUOHA
VS.
THE
STATE,
USO
VS.
COP.
c. The
Judge
has
a
duty
to
grant
all
the
parties
equal
right
of
audience
to
the
court
d. The
Judge
must
be
fair
and
respectful
to
the
Bar.
e. Court
must
ensure
justice
is
done
when
a
plea
of
guilty
is
entered
and
must
ensure
that
he
truly
intended
to
plea
same
before
sentence-‐KAYODE
V.STATE
(D)
DUTIES
OF
A
COURT
REGISTRAR
1.
The
Registrar
accepts
all
processes
for
filing.
2.
Ensure
that
the
case
file
is
ready
and
bring
it
to
the
attention
of
the
Judge
before
the
date
for
hearing.
3.
Ensure
that
hearing
notices
and
other
processes
are
served
on
all
the
parties.
4.
The
Registrar
makes
records
of
proceedings
available
to
the
parties
upon
demand.
5.
Ensure
the
perfection
of
a
bail
bond
where
necessarily.
6.
For
death
sentence,
the
Registrar
shall
as
soon
as
possible
forward
copies
of
the
certificate
issued
by
the
Judge
to
the
Prison
Officer
as
well
as
the
Sheriff.
7.
Administer
oath
COMMENCEMENT
OF
TRIALS/
ARRAIGNMENT
• Trial
commences
once
the
accused
person
pleads
to
the
Charge.
–
S.
215
of
the
CPL,
S.
211
of
the
ACJL,
S.
161
&
187
of
the
CPCL
and
FAWEHINMI
V.
IGP;
ADIO
V.STATE.
• Arraignment
is
the
MANDATORY
process
of
taking
the
plea
of
an
accused
to
the
charge
before
the
Court.-‐
NB-‐Plea
is
fundamental
to
the
jurisdiction
of
the
court
when
the
accused
has
not
pleaded
to
the
charge,
the
court
cannot
assume
jurisdiction-‐NWAFOR
OKEGBU
V.STATE.
• Prosecutor
files
the
charge
at
the
registry
of
the
CT
after
obtaining
leave
(where
necessary)
• The
Registrar
of
the
Court
calls
out
the
names
of
the
parties
to
the
case
• The
accused
is
required
to
proceed
to
the
dock
• The
accused
shall
be
placed
before
the
court
unfettered
–
the
accused
presented
to
the
Court
without
any
restraints
such
as
handcuffs,
leg
chains
etc
• The
Registrar/officer
of
court
reads
out
the
charge
or
information
to
the
accused
to
the
satisfaction
of
the
court
• The
accused
is
required
to
plead
instantly
to
the
charge
• Counsel
to
the
accused
cannot
plead
on
behalf
of
his
client:
R
v
Pepple:
the
trial
was
in
progress
when
the
counsel
announced
to
the
CT
that
the
accused
wants
to
change
his
plea
to
guilty
which
the
CT
recorded
and
convicted
the
appeal.
This
was
quashed
on
appeal
since
it
was
counsel
and
not
the
accused
that
entered
the
plea
• The
charge
is
read
and
explained
to
the
accused
and
his
plea
taken,
the
trial
is
a
nullity
if
this
it
not
done:
IGP
v
Rosseck,
Kujbo
v
State,
s215
CPL
• The
Court
shall
record
the
plea
entered
by
the
accused:
Edu
v
The
Srare
PROCEDURE
FOR
A
VALID
ARRAIGNMENT
1. The accused must be unfettered and placed in the dock (note-‐exceptions)
2. The
Charge/Information
must
be
read
over
and
explained
to
the
accused
in
the
language
that
he
understands
to
the
satisfaction
of
court
by
the
registrar
or
other
officer
of
the
court.
3. The
accused
will
be
called
upon
to
plead
instantly
to
the
Charge
unless
there
is
a
good
reason
not
to
do
so.
NOTE-‐
all
the
conditions
of
an
arraignment
must
be
done
or
the
Charge
to
be
read
in
the
presence
of
the
defendant’s
Legal
Practitioner
if
represented-
S.
211
(1)
of
the
ACJL.
Note
that
where
accused
does
not
understand
English
language,
an
interpreter
must
be
provided
at
no
cost.
The
court
must
equally
RECORD
that
the
charge
was
fully
read
and
explained-‐
AKPAN
v.
STATE.
NB-failure
to
do
so
however
will
not
nullify
the
trial
• The plea of an accused is to be recorded as nearly as possible in the language used.
• Failure
to
add
the
phrase
“it
was
done
to
the
satisfaction
of
the
court
will
not
render
a
plea
defective-‐SUNDAY
AMALA
V.STATE.
• Where
there
are
several
accused
persons,
their
pleas
must
be
recorded
separately
on
the
record
of
proceedings
(CAUSES
DELAY-‐EFCC
CASES)
• NOTE-failure
to
record
separate
pleas
shall
not
vitiate
the
trial
UNLESS
it
is
shown
to
occasion
a
MISCARRIAGE
of
justice-‐SHARFAL
V.STATE
EFFECT
OF
FAILURE-Failure
to
record
the
plea
of
the
accused,
the
trial
is
a
nullity.
-‐EDE
VS.STATE.
INSTANCES
WHERE
AN
ACCUSED
PERSON
MAY
NOT
PLEAD
INSTANTLY
TO
THE
CHARGE
Taking
of
plea
by
an
accused
person
is
mandatory
but
instances
exist
where
an
accused
may
not
instantly
plead
to
the
Charge
which
are:
a. The
absence
of
service
of
the
Charge
to
the
accused
b. A
preliminary
objection
is
raised
c. Where
an
accused
person
stands
mute
(silent)
PRELIMINARY
OBJECTIONS
The
accused
person
may
raise
preliminary
objections
to
his
trial
by
the
court
rather
than
plead
to
the
charge
on
the
following
grounds.
1.
OBJECTION
ON
GROUNDS
OF
LACK
OF
JURISDICTION.
This
may
be
on
the
ground
that
the
court:
a.
Lacks
the
jurisdiction
to
try
the
offender.
b.
Lacks
the
jurisdiction
to
try
the
offence
c.
Is
not
properly
constituted
as
regards
to
membership
or
d.
The
case
is
not
commenced
according
to
due
process.
Where
the
objection
succeeds,
he
may
be
re-‐arrested
and
arraigned
before
a
CT
of
competent
jurisdiction
NB-‐REFER
TO
WEEK
4
2.
OBJECTION
TO
FORMAL
DEFECT
ON
THE
FACE
OF
THE
CHARGE
• This
objection
ought
to
be
made
after
the
charge
is
read
over
to
the
accused
person
and
before
he
pleads.
• In
Obakpolo
v.
The
State,
the
SC
held
that
an
accused
that
pleads
to
a
charge
after
it
is
read
and
explained
to
him,
might
not
thereafter
successfully
raise
an
objection
to
a
formal
defect
on
the
face
of
the
charge.
His
plea
to
the
charge
is
a
submission
to
the
jurisdiction.
• Duplicity,
ambiguity,
misjoinder
of
offences,
misjoinder
of
offenders.
Note,
where
the
defect
is
minor,
it
can
be
cured
in
court.
However,
where
it
is
a
major
effect,
the
accused
is
discharged
and
the
prosecution
has
to
file
a
new
charge
• This
should
be
done
before
the
plead
is
taken:
s167
CPL,
s216(4)
ACJL
3.
OBJECTION
TO
DOUBLE
TRIAL
(plea
of
autrefois
acquit/convict)
• It
can
be
raised
at
any
time
before
judgment.
An
accused
person,
who
can
show
that
the
he
had
been
previously
tried
for
the
same
offence
by
a
court
of
competent
jurisdiction
and
was
either
convicted
or
acquitted,
can
object
to
his
subsequent
trial
for
the
same
offence:
S.
36(9)
CFRN,
s181
CPL,
s223(1)
CPCL.
• A
man
is
not
to
be
prosecuted
twice
for
the
same
offence:
rule
against
double
jeopardy
4.
OBJECTION
ON
GROUND
OF
PARDON
• Any
person
who
had
been
pardoned
of
a
criminal
offence
can
raise
a
preliminary
objection
to
his
trial
for
the
same
offence:
S.
36
(10)
CFRN,
s175
&
212
Constitution,
• Okongwu
v
State:
it
is
duty
of
the
person
pardoned
to
produce
the
certificate
of
pardon
to
prove
it
• Pardon
is
recommended
by
a
Committee
on
prerogative
of
mercy.
Therefore,
where
an
accused
person
tenders
an
instrument
of
pardon
in
objection
to
his
trial,
and
the
Court
is
satisfied,
the
accused
person
will
not
be
called
upon
to
make
a
plea.
The
charge
against
him
will
be
discharged.
5.
OBJECTION
ON
GROUND
THAT
THE
CRIMINAL
CASE
IS
STATUTE
BARRED.
• Once
a
crime
is
committed,
it
gives
rise
to
a
cause
of
action
against
the
alleged
offender.
• Note
only
few
cases
where
there
are
limitation
period
• Treason
(2yr
limitation
period),
sedition
(6
months
limitation
period),
custom
offences
(7yrs),
defilement
of
girls
under
13
and
imbeciles
(2months
limitation
period
EFFECT
OF
PRELIMINARY
OBJECTIONS-If
any
of
the
objections
are
upheld,
the
accused
will
be
discharged,
if
overruled
the
accused
will
be
asked
to
take
his
plea.
FAILURE
OF
ACCUSED
PERSON
TO
PLEAD
DUE
TO
MALICE
OR
OTHERWISE-SECTIONS
220
CPL,
S.
217
ACJL,
S.188
CPCL
• Where
an
accused
person
refuses
to
plead,
it
may
be
a
deliberate
act
or
an
inadvertent
act.
• The
Court’s
duty
is
to
conduct
a
preliminary
investigation
to
find
out
the
reasons
for
such
refusal.
–
S.
220
and
223
of
the
CPL,
S.
188
of
the
CPCL
and
S.
215-218
of
the
ACJL.
• If
the
reason
is
not
a
preliminary
objection,
the
Court
will
ask
the
accused
to
plead
to
the
Charge
failing
which
a
plea
of
not
guilty
will
be
recorded.
S.
215
of
the
ACJL,
S.
220
of
the
CPL,
S.
188
of
the
CPCL
and
GAJI
VS.STATE
• The
investigation
MUST
be
a
medical
examination
conducted
by
a
MEDICAL
OFFICER-‐R
v.
OGOR
• If
the
medical
investigation
reveals
that
the
accused
person
only
stood
mute
out
of
malice
(DELIBRATE
ACT)
the
court
shall
enter
a
plea
of
not
guilty
for
him
and
thereafter
proceed
with
his
trial
–
GAJI
v
THE
STATE,
YESUFU
V.
STATE
(1972):
the
accused
persons
were
charged
for
armed
robbery
and
three
of
them
behaved
funny
while
in
the
dock
(moving
up
and
down
and
shaking
their
mouths).
CT
ordered
for
an
investigation.
The
CT
found
that
their
muteness
was
out
of
malice
and
recorded
a
plead
of
not
guilty
• If
the
medical
investigation
(pursuant
to
S.223CPL;
S.320CPCL)
reveals
that
the
accused
person
stood
mute
due
to
unsound
mind
(INADVERTENT
ACT)(referred
to
as
visitation
of
God)
the
court
will
discontinue
the
trial
of
the
accused,
and
order
that
he
be
remanded
in
custody
usually
an
Asylum,
at
the
pleasure
of
the
Governor.-
S.223
&
224
CPL;
S.
320
&
321
CPCL;
219
ACJL
R
V.OGOR;
YESUFU
V.STATE,
ADAMA
v
DPP
THE
PLEAS
AVAILABLE
TO
AN
ACCUSED
PERSON
1. Plea
of
Guilty
2. Plea
of
not
Guilty
3. Plea
of
not
Guilty
by
Reason
of
Insanity.
4. Plea
of
pardon
5. Plea
of
autrefois
convict/acquit
NOTE(EXAMS)-There
is
no
plea
like
‘guilty
with
reasons’-‐AREMU
V.COP
A. PLEA
OF
GUILTY
SECTION
218
CPL,
213
ACJL,
S.
187
(2)
CPCL,
S.
161
(2)
CPCL
EFFECT
OF
THE
PLEA-Where
an
accused
person
pleads
guilty,
the
court
may
convict
the
accused
person.
CONDITIONS
FOR
CONVICTION
BASED
ON
A
PLEA
OF
GUILTY
1. The
court
must
be
satisfied
that
the
accused
understands
the
charge
read
to
him.
The
basic
ingredients
constituting
the
offence
must
be
explained
to
the
accused.-‐
Kayode
v.
State(mere
affirmation
of
understanding
without
full
meaning)-‐HELD
WRONG(APPEAL
ALLOWED.
2. The
court
must
record
the
plea
of
guilty
made
by
the
accused
person
as
nearly
as
possible
in
the
words
used
by
him
S.
218
CPL
3. The
Court
would
call
upon
the
Prosecution
to
restate
the
fact
of
the
offence
and
ask
the
accused
whether
his
plea
of
guilty
is
to
the
facts
as
stated
by
the
Prosecution:
S.
213
ACJL;
Osuji
v.
IGP
4. The
Court
will
not
take
or
record
the
plea
of
guilty
if
the
accused
rescinds
on
the
facts
stated
by
the
Prosecution.
-S.
213
of
the
ACJL
5. The
plea
of
the
accused
must
be
unequivocal
and
unambiguous
i.e.
he
must
have
intended
to
admit
the
offence-‐
AREMU
V.
C.O.P
(plea
of
guilty
with
reasons).
CONVICTION
QUASHED
6. The
facts
stated
by
the
Prosecution
MUST
contain
all
the
ingredients
of
a
charge
to
which
the
accused
pleaded
guilty
-‐ABELE
V.
TIV
NATIVE
AUTHORITY
(substituted
sentence
on
appeal)
7. If
the
offence
can
only
be
proved
by
EXPERT
evidence,
such
evidence
must
be
tendered
before
the
accused
can
be
convicted
on
the
plea.
Example
is
in
drug
related
offences
that
must
be
proved
by
expert
evidence.
ESSIEN
VS.
KING,
STEVENSON
V.COP,
ISHOLA
VS.
STATE.
However,
a
decision
by
the
CT
of
Appeal
in
Chukwu
v
FRN
(2013)
12
NWLR
(Pt
1369)
488.
Case
on
unlawful
possession
of
Indian
hemp,
which
requires
forensic
evidence.
The
Ct
held
that
since
accused
pleaded
guilty,
there
is
nothing
in
218
CPL
to
suggest
that
the
report
of
the
expert
must
be
made
available
before
conviction.
Therefore,
they
can
be
convicted
without
such
forensic
report.
Tendering
the
evidence
would
be
superfluous
since
we
all
know
what
marijuana
is
and
what
it
smells
like.
8. Once
the
Court
is
satisfied
that
the
accused
intended
to
admit
the
truth
of
all
the
essential
elements
of
the
offence,
it
will
convict
and
pass
sentence
on
the
accused.
ONOUHA
VS.
STATE.
(mere
admission
of
taking
money
NOT
conclusive
proof
of
stealing(CONVICTION
QUASHED)
WHEN
A
PLEA
OF
GUILTY
MUST
BE
SUBSTITUTED
FOR
PLEA
OF
NOT
GUILTY
1. Where
an
accused
makes
an
unequivocal
plea
of
guilty
but
subsequently
produces
evidence
or
makes
statements
denying
liability
for
the
offence
charged-‐ONUOHA
V
IGP
2. If
an
accused
pleads
guilty
to
the
Charge
in
a
capital
offence,
the
plea
of
not
guilty
MUST
be
recorded.
S.
218
of
the
CPL,
S.
215
of
the
ACJL,
R.
VS.
The
GUEST;
OLABODE
V.
STATE;
RATIONALE-‐Court
will
not
want
an
innocent
person
to
die
for
an
offence
he
did
not
commit;
the
prosecution
must
prove
such
allegations
beyond
reasonable
doubt;
the
court
must
ensure
all
ingredients
of
the
offence
are
present.
It
is
better
to
allow
100
guilty
persons
to
go
free
than
to
kill
one
innocent
soul.
3. Where
an
accused
person
pleads
guilty
to
an
offence
not
charged
and
prosecution
refuses
to
drop
earlier
charge.
4. Where
a
plea
is
ambiguous
5. Where
the
accused
rescinds
on
the
facts
stated
by
the
Prosecution.
–
S.
213
of
the
ACJL
NOTE-An
accused
can
appeal
against
his
conviction
notwithstanding
his
plea
of
guilty.
ESSIEN
VS.
R.
RULES
GUIDING
PLEA
OF
GUILTY
TO
AN
OFFENCE
NOT
CHARGED
BY
THE
PROSECUTION
• An
accused
may
plead
guilty
to
an
offence
not
charged
and
plead
not
guilty
to
the
offence
charged
with:
s219
CPL,
R
v
Kelly
1965.
The
Court
may
convict
him
on
the
offence
not
charged
if
the
prosecution
consents
and
drop
the
earlier
Charge.
• If
the
prosecution
refuses,
the
Court
will
record
not
guilty
and
his
trial
will
commence.
• Upon
trial,
if
the
offence
charged
with
fails,
the
Prosecution
is
barred
from
prosecuting
the
other
offence
pleaded
guilty
to
but
with
which
the
accused
was
not
charged.
S.214
of
the
ACJL
and
R
VS.
KELLY
WITHDRAWAL/CHANGE
OF
A
PLEA
Plea
of
guilty
can
only
be
changed
with
the
leave
of
the
Court
at
any
time
before
judgment.
It
may
be
by
written
application
or
orally.
After
conviction,
he
cannot
apply
to
change
his
plea
of
guilty.
R.
V.GUEST.
The
process
of
taking
a
fresh
plea
must
be
followed.
NB-Once
a
plea
of
guilty
is
taken
the
court
becomes
functus
officio
-‐R
V.
GUEST.
Functus
officio
is
a
branch
of
the
doctrine
of
res
judicata
preventing
the
re-‐opening
of
a
matter
before
the
same
court,
tribunal
or
other
statutory
actor,
which
rendered
the
final
decision
in
the
absence
of
statutory
authority.
B. PLEA
OF
NOT
GUILTY
• Burden
of
proof
here
lies
on
the
prosecution
to
establish
the
guilt
of
the
accused
beyond
reasonable
doubt-‐.S.135
EA
2011
EXCEPT
when
the
accused
has
a
burden
of
proving
some
particular
facts-‐AREH
V.
COP.
EFFECT
OF
PLEA-The
accused
is
deemed
to
have
put
himself
upon
his
trial
and
that
the
Prosecution
should
prove
his
guilt
beyond
reasonable
doubt.
–
S.
217
of
the
CPL,
S.
188
and
189
of
the
CPCL
and
S.
212
of
the
ACJL.
C. PLEA
OF
NOT
GUILTY
BY
REASON
OF
INSANITY
If
the
accused
was
sane
at
the
commission
of
the
offence,
a
plea
of
not
guilty
will
be
entered
and
the
trial
will
proceed.
If
at
the
time
of
commission,
the
accused
was
insane,
the
CT
will
order
that
he
be
remanded
in
a
mental
asylum
at
the
pleasure
of
the
Governor:
KARIMU
V
STATE,
LOKE
V
STATE
OPTION
OPEN
TO
COURT
IF
NO
OFFENCE
WAS
COMMITTED
BY
THE
ACCUSED-There
will
be
no
further
inquiry.
OPTION
OPEN
TO
THE
COURT
IF
ACCUSED
DID
NOT
COMMIT
THE
OFFENCE
If
the
accused
did
not
commit
the
offence,
then
the
question
of
his
mental
state
at
that
time
the
offence
was
committed
will
not
be
relevant.
At
the
conclusion
of
the
trial,
the
court
will
order
that
the
accused
must
be
discharged
and
acquitted
and
thereby
obviating
the
need
to
inquire
into
the
mental
state
of
the
accused.
OPTION
OPEN
TO
THE
COURT
IF
ACCUSED
COMMITED
THE
OFFENCE
WHILE
SANE.
If
the
court
finds
that
the
accused
committed
the
offence
and
was
sane
at
the
time
of
the
commission
of
the
offence,
the
accused
would
have
a
verdict
of
guilt
returned
against
him
and
he
would
be
sentenced
appropriately.
OPTION
OPEN
TO
THE
COURT
IF
ACCUSED
COMMITED
THE
OFFENCE
WHILE
INSANE
If
the
court
finds
that
the
accused
committed
the
offence
but
at
the
time
of
commission
of
the
offence
was
insane,
he
would
be
found
not
to
be
guilty
of
reasons
of
insanity.
Hence,
the
accused
would
be
detained
at
the
pleasure
of
the
Governor:
S.230(1)
CPL.
At
the
discretion
of
the
governor,
the
accused
shall
be
confined
in
a
mental
health,
asylum,
prison
or
other
suitable
place
of
safe
custody-ADAMS
V.
D.P.P.
MEANING-It
is
a
negotiated
agreement
between
the
Prosecution
and
an
accused
where
the
accused
pleads
guilty
to
a
lesser
offence
or
some
Charges
in
exchange
for
some
lesser
sentence
or
a
dismissal
of
other
charges.
LEGAL
FRAMEWORK
It
is
only
provided
for
statutorily
in
Lagos
State
Law
and
it
applies
to
all
kinds
of
offences.-‐S.75&76
ACJL.
The
AG
has
power
to
accept
and
consider
plea
bargain
in
the
interest
of
justice;
public
interest
etc-‐s.75ACJL.
However
the
application
is
growing
in
practice
since
it
has
been
employed
by
the
EFCC
in
corruption
cases-‐
S.
14(2)
EFCC
Act.
NB-compounding
in
S.339
PC
is
different
from
plea
bargain.
TYPES
OF
PLEA
BARGAIN
a.
Charge
bargaining
(accused
pleads
guilty
to
the
charge
or
part
of
charge
or
to
a
lesser
offence
and
agreed
to
forfeit
properties
to
the
state).-‐S.76
ACJL.
b.
Sentence
bargain
(accused
may
be
told
in
advance
what
his
sentence
would
be
if
he
pleads
guilty
to
the
charge.NOTE-‐s.339
CPCL(COMPOUNDING)
The
agreement
may
include
compensation
or
restitution.
Tafa
Balogun’s
case
(former
IG
of
Police)
–
was
sentenced
to
only
6
months
for
embezzling
millions
of
naira.
PROCEDURE
FOR
PLEA
BARGAIN
IN
LAGOS
STATE
1. A
plea
or
sentence
agreement
may
be
entered
by
the
prosecution
(law
officer),the
defendant
or
his
counsel-‐s.76(1)
ACJL.
2. The
Prosecution
must
consult
with
the
IPO
(investigating
police
officer)
and
where
feasible
the
victim
as
to
the
inclusion
of
compensation
and
restitution
before
an
agreement
is
reached-‐S.76(2)
ACJL
3. The
prosecutor
if
feasible
shall
give
the
defendant
room
to
make
representations
as
to
the
contents
of
the
agreement-s.76(3)
ACJL.
4. The
judge
(before
whom
the
case
is
pending)
should
not
participate
in
the
agreement
leading
to
the
plea
bargain-‐s.76(5)
ACJL
5. The
prosecution
may
inform
the
Court
of
contents
of
agreement
with
a
view
of
seeking
direction
in
general
terms.
6. The
agreement
must
be
in
writing
and
signed
by
both
parties
and
must
contain
the
fact
that
the
defendant
has
been
informed
of
his
right
to:
a. Remain
silent
b. Consequences
of
not
remaining
silent
7. Terms
of
the
agreement
is
presented
to
the
court
by
the
prosecution
and
court
enters
judgment
S.
76(6)
8. The
court
must
confirm
the
correctness
or
voluntariness
of
the
agreement
from
the
defendant
before
entering
it
as
judgment-‐s.76(7)
&8
9. If the judge is not satisfied, he will order the matter to proceed to trial-‐s.76(7)(b)
10. If
the
judge
imposes
a
higher
sentence
than
agreed
the
defendant
may
agree
OR
withdraw
from
the
agreement
and
a
fresh
trial
would
be
commenced
before
another
judge.-‐S.76(9)
11. If
there
is
a
fresh
trial,
reference
shall
not
be
made
to
the
agreement
and
it
shall
not
be
an
admission
of
guilt:
S.76(10z)
2. It is good for the decongestion of the Courts and Penal institutions
3. The
State
can
recover
especially
in
embezzlement
cases,
i.e.
money
and
assets
from
the
accused.
RESTORATIVE JUSTICE
• It
seeks
to
involve
all
stakeholders
and
provide
opportunities
for
those
most
affected
by
the
crime
to
be
directly
involved
3. Sentencing circles
1. Police investigation
2. Prosecution level
3. Court level
4. Sentencing level
Note:
Practice
Direction
in
High
Ct
in
FCT:
issued
by
Chief
Judge
of
the
FCT
on
1st
July
2014:
Homicide,
Armed
Robbery,
Kidnapping,
Rape,
Corruption,
Money
Laundering
and
such
other
offences
as
the
Chief
Judge
may
from
time
to
time
specify.
It
states
that
where
the
application
for
leave
to
prefer
a
charge
is
to
be
made
before
the
CT,
the
accused
must
be
present
before
the
Court
(prior
to
this,
it
was
made
ex
parte).
Even
where
the
accused
person
is
in
Court,
he
cannot
comment
on
the
nature
of
the
application,
the
application
for
leave
must
be
accompanied
by
an
affidavit
stating
that
all
the
investigation
into
the
matter
has
been
conducted.
Prosecutor
must
also
state
that
all
witnesses
are
ready
and
available
to
testify
and
he
is
ready
to
commence
trial.
Provision
for
pre-‐hearing
protocols
so
where
leave
is
granted
and
after
arraignment,
cases
to
be
set
down
for
pre-‐trial
hearing
within
14
days.
Within
7
days
of
the
last
pre-‐trial
hearing,
the
CT
shall
give
judgment
on
all
pre-‐trial
issues.
No
application
to
be
made
at
the
pre-‐trial
stage
shall
be
taken
at
the
trial.
At
the
end
of
the
pre-‐trial,
the
CT
may
issue
directives
as
to
the
number
of
witnesses
to
be
called,
time
for
each
party
to
present
their
case,
expected
duration
of
time
and
such
other
orders
which
in
the
opinion
of
the
judge
may
facilitate
expeditious
dispensation
of
the
matter
Practice
Direction
of
the
Federal
High
Court
2013:
in
respect
of
the
same
offences
but
no
provision
for
pre-‐trial
protocols.
The
offences
of
Terrorism,
Kidnapping,
Trafficking
in
persons,
Rape,
corruption,
money
laundering
Week
14:
Trial
2:
Trial
Preparation
and
Evidence
What
is
case
theory?
What
is
trial
plan?
Need
and
purpose
of
case
theory/trial
plan
Are
you
the
prosecution
or
defence
counsel?
Nature
of
the
case
or
defence
Note
the
implication
of
the
FCT
Practice
Direction
2014
and
the
FHC
Practice
Direction
2013
on
trial
plan
Pre-trial
and
trial
plan
Filing
of
charges/bail
application
A-TRIAL
PREPARATION
CASE
THEORY
Case
theory
refers
to
the
possible
line
of
argument
to
be
presented
to
the
court.
The
theory
of
the
case
is
the
most
plausible
explanation
a
party
can
adduce
in
his
favour
to
meet
a
set
of
facts.
FACTORS
INFLUENCING
A
GOOD
CASE
THEORY
i.
What
is
the
charge
against
the
accused?
ii.
What
are
the
ingredients
having
regard
to
the
statute
creating
the
offence?
iii.
What
are
the
facts
available
to
prove
this
offence?
iv.
What
are
the
basic
principles
guiding
this
offence?
v.
Are
there
likely
defences
available
to
the
accused
in
this
case?
vi.
Processes
to
ensure
reluctant
witnesses
attend
court
NB:
Do
not
worry
about
the
weaknesses
in
your
case;
rather
trivialize
them
and
allow
your
opponent
to
worry
about
them.
Defence
counsel
• Interview
client
when
client
is
charged
• From
these
facts
given
by
client,
it
will
indicate
likely
defences
of
your
client
• Don’t
rely
on
evidence
from
client
alone.
See
the
IPO
(investigating
police
officer)
to
know
lapses
of
investigation
process
e.g.
no
due
process
followed
(beating
the
client
in
the
name
of
police
interview)
• NB:
no
two
cases
are
the
same
These
practice
Directions
have
the
objective
of
speeding
up
processes
of
cases.
They
emphasise
thorough
preparation
as
adjournments
may
not
be
granted
willingly.
Practice
Direction
of
the
High
Ct
FCT:
Rule
4
states
that
(affect
theory
of
case
and
trial
plan):
Duties
of
the
prosecution
and
defence
–
the
prosecution
shall
serve
copies
of
the
statement
of
the
offence
and
documentary
evidence
7
days
before
the
trial.
See
other
duties
of
the
defence.
For
criminal
cases,
pre-‐hearing
protocol
in
the
FCT.
It
refers
to
the
number
of
witnesses,
time
allowed
by
each
party,
specific
date
and
time
for
hearing,
expected
duration
of
trial
and
when
judgement
is
expected.
Thus
trial
plan
must
include
witnesses
and
evidence
(must
be
in
writing
and
serve
on
the
opposite
party).
These
Practice
Directions
refer
to
certain
crimes
–
see
the
Practice
Directions.
NB-‐
such
other
cases
as
the
Chief
Judge
may
from
time
to
time
specify
TRIAL
PLAN:
Trial
plan
is
an
action
plan
prepared
by
a
counsel
showing
how
he
intends
to
prove
his
case
or
establish
his
defence.
HOW
TO
DEVELOP
A
TRIAL
PLAN
FOR
A
PROSECUTION
COUNSEL
STAGE
ONE-
• Examine
the
charge
sheet
• The
law
under
which
the
charge
is
brought
• List
of
witnesses
• Proof
of
evidence
• Exhibits
and
documents
to
be
tendered
STAGE
TWO-
• Outline
the
ingredients
of
the
offence
• See
whether
what
you
have
in
the
proof
of
evidence
is
enough
to
sustain
the
charge.
STAGE
THREE-‐Identify
the
possible
defences
of
your
opponent
STAGE
FOUR-‐Draw
up
the
questions
you
intend
to
ask
in
proof
of
your
case
and
questions
to
ask
in
cross
examination
STAGE
FIVE-‐Identify
and
study
the
case
law
and
statute
you
may
use
in
court.
STAGE
SIX-‐Plan
your
fall
back
options
STAGE
SEVEN-Hold
pre
trial
chambers
meeting.
Preparation
of
witnesses
for
trial
• Pre-‐trial
briefing
• Note
that
briefing
or
prepping
is
not
the
same
as
pre-‐trial
coaching
• E.g.
of
pre-‐trial
briefing
include:
take
witnesses
to
court
to
witness
an
actual
trial;
enlighten
the
witness
that
the
court
is
there
to
protect
them
e.g.
opposite
counsel
will
not
be
allowed
to
badger
them
or
abuse
them
• Note:
(preparing
the
IPO
as
witness)
-‐
the
service
number
and
rank
of
police
officer
are
relevant
as
introductory
issues
in
examination
in
chief.
IPO
to
state
how
the
report
by
Mrs
Agbo
was
made
and
interviewing
her.
Did
he
arrest
anyone
and
take
their
statements
and
how
the
statements
were
taken
(i.e.
no
torture).
The
report
of
the
identification
parade
and
how
it
will
be
introduced
in
court.
Exhibit
keeper
will
have
assigned
a
number
to
the
bike
recovered
–
so
IPO
has
to
explain
the
chain
of
custody
(where
was
the
bike
recovered,
who
did
he
hand
it
over
to,
what
is
the
assigned
number
to
the
bike).
In
his
investigation,
bank
would
have
given
the
IPO
a
statement
of
account
and
this
would
form
part
of
the
evidence
Trial
Plan
(Ene
Agbo
scenario):
Prosecution’s
trial
plan
Charge
• Robbery
• Theft
• Conspiracy
Law
under
which
the
charge
is
brought
• 21years
• Up
to
5yrs
imprisonment
The
prayers
• Conviction
on
all
charges
Defence’s
trial
plan
• No
eye
witnesses
at
the
scene
of
the
crime
• Defence
of
alibi
–
produce
the
witnesses
to
the
Jollywell
Hotel,
Wuse.
Testimony
of
the
accused
persons
and
witnesses
• Due
process
not
followed
–
identification
parade
requires
a
minimum
of
8
people
for
1
suspect
and
12
people
for
2
suspects
of
the
same
physical
build
• Stating
that
the
bike
doesn’t
belong
to
the
defendant
Documents
to
file
• Defendant’s
statement
made
at
the
police
station
when
they
were
arrested
Prayers
• Acquit
the
defendants
on
all
charges
EVIDENTIAL
ISSUES
Burden
of
proof:
Obligation
of
the
party
to
adduce
evidence
or
to
prove
a
case.
It
is
the
person’s
obligation
to
do
something.
Legal
burden
and
evidential
burden.
The
legal
burden
of
proof
is
on
the
prosecution.
It
never
shifts.
It
is
static.
Standard
of
proof:
duty
of
a
party
to
prove
a
case
by
producing
the
quantum
of
evidence
required
by
law.
SECTION
36(5)
CFRN
1999:
Every
person
who
is
charged
with
a
criminal
offence
shall
be
presumed
to
be
innocent
until
he
is
proved
guilty
(c)
the
nature
of
the
relevant
offence,
cause
of
action
or
defence
and
the
nature
of
the
subject-‐matter
of
the
proceeding;
(f)whether
any
other
proceeding
(whether
or
not
in
a
court)
has
been
or
is
likely
to
be
taken
in
relation
to
the
impropriety
or
contravention;
and
(g)the
difficulty,
if
any,
of
obtaining
the
evidence
without
impropriety
or
contravention
of
law.
The general rule is that all persons are competent to testify EXCEPT they are:
See
the
slide
of
Dagayya
v
The
State
(2006):
where
child
gives
sworn
evidence,
his
evidence
requires
no
corroboration.
Where
child
gives
unsworn
evidence,
his
evidence
must
of
necessity
be
corroborated
• A
child
under
14
years
of
age
must
give
unsworn
evidence
needing
corroboration.
-
S.
209(3)
of
the
Evidence
Act.
Evidence
of
child
under
14yrs
must
be
taken
otherwise
than
under
oath
or
affirmation
• A
child
of
14
years
and
above
can
give
sworn
evidence
which
will
need
no
corroboration
but
the
Court
will
caution
itself
if
it
decides
to
convict
on
it.
• Counsel
as
witness
for
client:
counsel
is
competent
but
ought
to
withdraw
as
counsel
if
he
is
likely
to
be
a
witness:
Elabanjo
v
Tijani
(1986)
5
NWLR
(Pt.
46)
952.
Imagine
the
difficulties
counsel
may
face
if
he
has
to
continue
with
the
case
after
his
credibility
is
questioned
under
cross
examination
Tainted
witness:
Tainted
witness
not
an
accomplice
but
may
be
a
witness
who
has
a
purpose
of
his
own
to
serve:
Mbenu
v
State
(1988)
E.g.
witnesses
with
criminal
connections
who
may
want
to
rope
in
another
person
so
they
receive
a
lesser
sentence
and
claimants
to
the
property
of
deceased
person:
Ali
v
The
State
(2009)
Evidence
of
relations
of
accused
or
victim:
Such
witnesses
are
competent
but
their
evidence
should
be
scrutinised
with
caution
COMPELLABILITY
OF
WITNESSES
This
means
to
put
a
witness
under
a
legal
obligation
to
give
evidence.
The
general
rule
is
that
all
witnesses
can
be
compelled
to
give
evidence
in
Court.
EXCEPTIONS
• Judges
or
judicial
officers
as
to
matters
within
their
capacity
as
a
judge.
He
may
be
examined
as
to
other
matters.
–
S.
188
of
the
Evidence
Act
ELEBANJO
VS.TIJANI.
• Legal
practitioners,
Court
interpreters
or
Clerks
of
Legal
Practitioners
in
official
capacity.
-
S.
192
and
S.
193
of
the
Evidence
Act.
Except
with
EXPRESS
CONSENT
• Information
in
respect
to
the
commission
of
offence
received
by
prosecutors
or
the
Police.
• An
accused
person
not
a
compellable
witness
for
the
defence-S.36(11)
CFRN.
As
witness
for
the
prosecution
(Umole
v
IGP:
held
that
accused
can
testify
against
co-‐accused
when
the
former
had
pleaded
guilty
and
convicted
before
being
called
by
the
prosecution:
can
be
compellable
at
this
stage)
• Evidence
as
to
the
affairs
of
a
State
unpublished.
-‐S.
190
of
the
Evidence
Act.
• Official
communication
by
public
officers
-‐S.
191
of
the
Evidence
Act.
• The
President
and
Vice
President
of
Nigeria;
and
the
Governors
and
Deputy-
Governors
of
the
States.
S.
308(1)(c)
of
the
1999
Constitution
are
competent
but
not
compellable
witnesses
TINUBU
V.
IMB
SECURITIES
ISHOLA
NOAH
VS.BRITISH
HIGH
COMMISSIONER
(except
election
matters)
• Diplomatic
agents
and
convoy.
S.
2
of
the
Diplomatic
Immunities
and
Privileges
Act
• Diplomats
and
members
of
diplomatic
missions
including
foreign
envoys.
Consular
officers
and
members
of
their
families
and
staff
(and
members
of
the
family
of
the
officer
staff)
are
immune
from
all
legal
process
S.
1(1)
Diplomatic
Immunities
and
Privileges
Act.
• NB-‐Zabuski
v.
Israeli
Aircraft
Industries-‐It
was
held
that
the
provisions
of
S.
1(1)
DIPA,
only
make
Diplomats
un-‐compellable
but
they
are
competent
witnesses
if
they
desire
to
waive
the
immunity:
S.
2,
4
and
15
DIPA.
• What
of
Nigerian
working
in
an
embassy
or
a
Nigerian
working
for
the
UN
in
Nigeria
(see
Ishola
case)
WITNESSES
There
are
generally
three
methods
of
securing
attendance
of
a
witness
in
court
a.
Witness
summons
b.
Subpoena
c.
Warrant
WITNESS
SUMMONS
This
is
an
order
of
court
issued
to
a
person
whose
presence
is
required
for
purposes
of
testifying
in
a
manner
before
the
court.
It
is
used
in
the
magistrates’
courts.
However,
it
is
not
expressly
prohibited
to
be
used
in
the
High
Court.
PROCEDURE
a.
The
party
desirous
to
call
a
witness
(who
may
be
unwilling
to
come
would
apply
to
the
Registrar
of
the
court
to
issue
summon
upon
payment
of
the
requisite
fees.
b.
The
witness
summons
is
served
on
the
witness
personally
unless
where
leave
of
court
is
granted
to
serve
by
substituted
means
–
S.
187
CPL
c.
Failure
to
obey
the
summons
will
be
regarded
as
contempt
of
court
-‐S.
191
(a)CPL
d.
A
person
so
served
may
refuse
to
attend
unless
his
travel
cost
is
paid
except
where
the
Prosecutor
is
a
Law
officer.
S.
186
(2)
CPL
SUBPOENA
• This
is
the
commonest
method
by
which
the
attendance
of
a
witness
is
secured
in
trials
before
the
High
Court.
• In
Police
v.
Jane,
it
was
held
that
a
Magistrate
has
no
power
to
issue
a
subpoena.
• A
subpoena
is
a
writ
in
an
action
requiring
the
person
to
whom
it
is
directed
to
be
present
at
a
specified
place
and
time
for
a
specific
purpose
under
a
penalty
under
the
law-‐Morrison
Ind.
Plc
v.
Makinde.
TYPES
OF
SUBPOENA
a.
Subpoena
ad
testificandum:
This
is
for
the
purpose
of
compelling
a
witness
to
attend
court
and
give
evidence:
Form
40
FCT
b.
Subpoena
duces
tecum:
This
is
used
to
compel
a
witness
to
come
to
court
or
before
an
Examiner
or
Referee
to
give
evidence
and
also
to
bring
with
him/her
certain
document
in
his/her
possession
specified
in
the
subpoena:
Form
42
FCT
c.
Habeas
corpus
ad
testificandum:
Form
41
FCT
–
writ
directed
at
the
controller
of
Prisons
directing
the
person
to
produce
that
person
to
court
at
the
named
date
or
days
to
testify
and
give
evidence
PROCEDURE
i.
Application
is
made
by
the
party
who
requires
it
to
the
Registrar
upon
payment
of
the
requisite
fees.
ii.
It
is
also
served
on
the
witness
personally.
iii.
Failure
to
obey
a
subpoena
would
make
the
court
to
issue
warrant
for
the
arrest
of
the
person
whose
attendance
is
so
required
unless
the
person
has
applied
to
have
same
set
aside.
WARRANT
• This
is
not
a
means
of
securing
attendance
of
a
witness
in
court
at
first
instance.
It
is
usually
issued
after
a
witness
summons
has
been
disobeyed-‐S.
188
CPL
• However,
where
the
court
is
satisfied
upon
oath
that
the
person
is
likely
to
give
material
evidence
but
that
he
would
not
attend
court
unless
he
is
compelled
to
do
so;
the
court
may
use
warrant
at
the
first
instance.-‐S.
189
CPL
• In
criminal
trials,
there
is
generally
no
required
number
of
witnesses
to
call
to
prove
a
case.
• Evidence
of
one
witness
which
is
credible
would
prove
the
most
heinous
crime:
Section
200
EA
2011
All
that
is
required
is
for
the
Prosecution
to
prove
the
case
against
the
accused
beyond
reasonable
doubt.
However,
where
the
Prosecutor
fails
to
call
an
eyewitness
or
material
witness,
the
court
may
reasonable
infer
that
if
the
witness
had
been
called,
his
testimony
would
have
been
favourable
to
the
accused
person.
OGBODU
V.
THE
STATE
A
prosecutor
must
not
call
all
eyewitnesses
to
testify-‐
ALLI
&
ANOR
V.
THE
STATE;
ADAJE
V.
STATE.
CORROBORATION
Corroboration
means
confirmation
of
a
piece
of
evidence
by
another
independent
evidence.
As
a
general
rule,
corroboration
is
not
required
to
prove
the
guilt.
Person
can
be
convicted
based
on
the
evidence
of
a
single
credible
witness:
s200
EA
In
all
the
situations,
where
the
law
of
Evidence
requires
corroboration,
the
Prosecution
will
require
the
testimony
of
at
least
two
witnesses
to
secure
a
conviction-‐
Corroboration
may
be
required
as
a
matter
of
law
or
as
a
matter
of
practice.
The
nature
of
the
corroborative
evidence
will
vary
from
one
case
to
another
The
circumstances
are
as
follows:
a.
WITNESSES
The
testimony
of
the
following
persons
as
witnesses
require
corroboration.
i.
Testimony
of
an
accomplice
S.
198(1)
EA.
An
accomplice
is
any
person
who
pursuant
to
section
7
of
the
Criminal
Code
may
be
deemed
to
have
taken
part
in
committing
the
offence
as
the
defendant
or
is
an
accessory
after
the
fact
to
the
offence,
or
a
receiver
of
stolen
goods
(s198(2)
EA):
Mohammed
v
State.
A
co-‐accused
is
not
an
accomplice,
a
court
must
warn
herself
that
it
is
unsafe
to
convict
based
upon
the
evidence
of
a
co-‐accused
iii.
Exceeding
Speed
Limit
S.
203(1)
EA:
Exception
-
“Provided
that
the
evidence
of
a
duly
authorised
officer
of
the
relevant
authority
who
was
at
time
of
the
commission
of
the
offence
operating
any
mechanical,
electronic
or
other
device
for
the
recording
of
the
speed
of
a
moving
vehicle,
the
record
of
such
device
being
additionally
tendered
in
evidence
against,
the
defendant,
shall
not
require
further
corroboration”
iv.
Sedition
S.
204
EA,
S.
528
Criminal
Code
Act
Effect
of
corroboration
• When
corroboration
is
required
as
a
matter
of
law,
failure
of
corroborative
evidence
of
a
crucial
witness
may
nullify
a
conviction
and
sentence.
• Where
corroboration
is
not
required
by
law
but
a
court
did
not
warn
herself
as
to
the
need
for
corroboration,
the
effect
would
depend
upon
the
quality
of
testimony
of
the
single
witness
NB
=EXAMS-‐
Sexual
offences
S.
179
(5)
Old
Evidence
Act
2004
SS
218,
221,
223
and
224
CC.
This
was
completely
omitted
in
the
New
Evidence
Act
meaning
the
requirement
has
been
abolished
under
the
E.A.
Computer
generated
evidence
• S84
EA
• Kubor
v
Dickson
• Need
for
foundation
as
to
the
identity
and
operation
of
the
computer
at
the
relevant
period
• Certificate
of
compliance
Section
84
EA
2011
• Section
84(2)(a)
that
the
document
containing
the
statement
was
produced
by
the
computer
during
a
period
over
which
the
computer
was
used
regularly
to
store
or
process
information
for
the
purposes
of
any
activities
regularly
carried
on
over
that
period,
whether
for
profit
or
not,
by
anybody,
whether
corporate
or
not,
or
by
any
individual;
• (b)
that
over
that
period
there
was
regularly
supplied
to
the
computer
in
the
ordinary
course
of
those
activities
information
of
the
kind
contained
in
the
statement
or
of
the
kind
from
which
the
information
so
contained
is
derived;
• (c)
that
throughout
the
material
part
of
that
period
the
computer
was
operating
properly
or,
if
not,
that
in
any
respect
in
which
it
was
not
operating
properly
or
was
out
of
operation
during
that
part
of
that
period
was
not
such
as
to
affect
the
production
of
the
document
or
the
accuracy
of
its
contents;
and
• (d)that
the
information
contained
in
the
statement
reproduces
or
is
derived
from
information
supplied
to
the
computer
in
the
ordinary
course
of
those
activities.
• Section
84(3):
Where
over
a
period
the
function
of
storing
or
processing
information
for
the
purposes
of
any
activities
regularly
carried
on
over
that
period
as
mentioned
in
subsection
(2)
(a)
of
this
section
was
regularly
performed
by
computers,
whether—
• (a)
by
a
combination
of
computers
operating
over
that
period;
(b)
by
different
computers
operating
in
succession
over
that
period;
• (c)
by
different
combinations
of
computers
operating
in
succession
over
that
period;
or
• (d)
in
any
other
manner
involving
the
successive
operation
over
that
period,
in
whatever
order,
of
one
or
more
computers
and
one
or
more
combinations
of
computers,
• all
the
computers
used
for
that
purpose
during
that
period
shall
be
treated
for
the
purposes
of
this
section
as
constituting
a
single
computer;
and
references
in
this
section
to
a
computer
shall
be
construed
accordingly.
• Section
84(4)
In
any
proceeding
where
it
is
desired
to
give
a
statement
in
evidence
by
virtue
of
this
section,
a
certificate
—
• (a)
identifying
the
document
containing
the
statement
and
describing
the
manner
in
which
it
was
produced;
• (b)
giving
such
particulars
of
any
device
involved
in
the
production
of
that
document
as
may
be
appropriate
for
the
purpose
of
showing
that
the
document
was
produced
by
a
computer.
• (i)
dealing
with
any
of
the
matters
to
which
the
conditions
mentioned
in
subsection
(2)
above
relate,
and
purporting
to
be
signed
by
a
person
occupying
a
responsible
position
in
relation
to
the
operation
of
the
relevant
device
or
the
management
of
the
relevant
activities,
as
the
case
may
be,
shall
be
evidence
of
the
matter
stated
in
the
certificate;
and
for
• the
purpose
of
this
subsection
it
shall
be
sufficient
for
a
matter
to
be
stated
to
the
best
of
the
knowledge
and
belief
of
the
person
stating
it.
• (a)
information
shall
be
taken
to
be
supplied
to
a
computer
if
it
is
supplied
to
it
in
any
appropriate
form
and
whether
it
is
supplied
directly
or
(with
or
without
human
intervention)
by
means
of
any
appropriate
equipment;
• (b)
where,
in
the
course
of
activities
carried
on
by
any
individual
or
body,
information
is
supplied
with
a
view
to
its
being
stored
or
processed
for
the
purposes
of
those
activities
by
a
computer
operated
otherwise
than
in
the
course
of
those
activities,
that
information,
if
duly
supplied
to
that
computer,
shall
be
taken
to
be
supplied
to
it
in
the
course
of
those
activities;
• (c)
a
document
shall
be
taken
to
have
been
produced
by
a
computer
whether
it
was
produced
by
it
directly
or
(with
or
without
human
intervention)
by
means
of
any
appropriate
equipment.
WEEK
15-TRIAL
3-EXAMINATION
OF
WITNESSES
No
particular
number
of
witnesses
required
to
prove
a
case:
Olabode
v
State.
However,
note
the
instances
when
corroboration
is
required
e.g.
evidence
of
a
child
under
14yrs.
Also
in
picking
witnesses,
only
pick
material
or
vital
witnesses
that
will
prove
the
case
for
the
prosecution
or
the
defence.
PREPARATION
OF
WITNESSES
FOR
TRIAL
The
first
thing
a
Registrar
does
is
to
ask
all
witnesses
for
a
case
to
go
out
of
Court
and
of
hearing.
NB-‐This
announcement
is
made
either
on
the
application
of
either
party
or
by
the
court
suo
motu.
S.
212
Evidence
Act,
S.
242
ACJL,
S.
285
CPL
Requirement
for
ordering
witnesses
out
of
court
and
hearing
does
not
apply
to
parties
themselves
or
their
respective
legal
advisers
even
if
they
will
be
called
as
witnesses:
s212
Evidence
Act
RATIONALE-Such
that
witnesses
may
not
tailor
their
own
evidence
totally,
with
what
other
witnesses
called
by
their
party
have
said
to
their
hearing.
EFFECT
OF
FAILURE
TO
ORDER
WITNESSES
OUT
OF
COURT
• Failure
to
order
prospective
witnesses
out
of
court
and
out
of
hearing
does
not
vitiate
the
proceedings
–
Proviso
to
s.
242
ACJL;
UWAEZUOKE
V.
COP.
• If
a
witness
remains
in
the
Court,
his
evidence
will
be
admitted
but
less
weight
will
be
attached
to
it.
NWABUEZE
V.COP;
FALAJU
V.
AMOSU
• The
Court
may
also
restrain
communication
between
the
witnesses
in
Court.
S.
213
of
the
Evidence
Act.
STAGES
OF
EXAMINATION
OF
WITNESSES
1.
Examination
in
-‐chief
2.
Cross
–Examination
3.
Re
–
Examination
A-EXAMINATION
IN
CHIEF
The
examination
in
chief
is
the
examination
of
a
witness
by
the
party
who
called
him-‐
SECTION
214(1)
EVIDENCE
ACT.
Method
of
putting
questions
to
witnesses
with
a
view
to
obtaining
material
evidence
from
them.
Conducted
by
the
party
calling
the
witness.
ROLE
OF
EXAMINATION
IN
CHIEF
1.
The
purpose
of
examination
in
chief
is
to
obtain
from
the
witness,
first
hand,
all
the
facts
that
he
can
prove
in
support
of
the
case
of
the
party
calling
him.
2.
It
aids
to
elicit
the
admissible,
relevant
and
material
and
favourable
evidence
in
relation
to
the
issues.
3.
The
evidence
elicited
from
examination
–
in
–
chief
fine
tunes
the
parties’
theory
of
the
case.
4.
The
court
tends
to
see
the
true
position
of
events
from
the
witnesses’
evidence
in
chief.
5.
It
aids
in
the
extraction
of
truths
from
the
facts
of
the
case.
It
takes
the
form
of
responses
to
questions,
which
eventually
provides
a
story
line.
Usually
commenced
by
introductory
questions
before
main
questions.
Counsel
should
guide
witness
to
tell
court
only
story
that
is
relevant,
in
an
orderly,
sequential
and
easy
to
follow
manner.
Pre-‐trial
interview
prepare
witnesses
QUESTIONS
NOT
TO
BE
ASKED
IN
EXAMINATION
IN
CHIEF
a.
Leading
questions
shall
not
be
asked
in
examination
in
chief:
s221(1)
&
(2)
E.A.
b.
Question’s
tending
to
give
hearsay
evidence
c.
Questions
eliciting
evidence
of
opinion.
d.
Questions
eliciting
oral
evidence
from
the
contents
of
a
document.
e.
Also
irrelevant
questions
should
not
be
asked.
TYPES
OF
QUESTIONS
USED
IN
EXAMINATION
IN
CHIEF
a.
Open
questions:
Here
the
witness
tells
the
story
b.
Closed
questions:
Limit
the
answers
to
be
given
by
the
witness.
c.
Transitional
Questions
NB
==#For
examination–in–chief,
prepare
your
questions
based
on
the
theory
of
the
case.
Use
open
ended
questions
e.g.
where,
why,
when,
what,
who,
how,
describe,
explain
etc.
LEADING
QUESTIONS
• A
question
suggesting
the
answer,
which
the
person
putting
the
question
wishes
or
expects
to
receive-S.
221
(1)
Evidence
Act
2011.
• It
is
not
allowed
in
re-examination
and
examination
in
chief-S.
221(2)
EA
2011.
WHEN
LEADING
QUESTIONS
WILL
BE
PERMITTED
BY
THE
COURT
However,
the
court
shall
permit
leading
questions
in
the
following
instances.
a.
Introductory
matters
or
b.
Undisputed
facts
or
c.
Matters
which
in
the
opinion
of
the
court
have
already
been
sufficiently
proved
before
the
court.
S.
221(3)
Note
where
an
objection
is
not
raised
to
a
leading
question
and
same
is
answered
by
the
witness,
the
CT
can
act
on
it:
Garba
v
R
(1959)
4
FSC
162.
Also
note
that
where
introductory
facts
are
disputed,
then
leading
questions
of
these
facts
are
not
allowed.
CROSS
EXAMINATION
• The
examination
of
a
witness
by
a
party
other
than
the
party
who
called
him
shall
be
called
cross
examination
Section
214
(2)
Evidence
Act
2011
• It
comes
after
the
examination
in
Chief
has
been
completed.
• Not
limited
to
acts
elicited
in
examination
in
chief:
s215(2)
EA
• Cross-‐examination
is
not
mandatory.
If
the
counsel
on
the
opposing
side
has
no
real
issues
to
prove
by
the
questions,
then
he
should
refrain
from
asking
them:
Kpokpo
v
Uko
• Where
a
witness
in
examination
–
in
–
chief
is
silent
on
a
material
point
and
did
not
say
anything
against
the
interest
of
the
opponent
cross
examination
would
not
be
necessary-‐
KPOKPO
V.
UKO
• Where
more
than
one
defendant
is
charged
at
the
same
time
each
defendant
shall
be
allowed
to
cross-‐examine
a
witness
called
by
the
prosecution
before
the
witness
is
re-‐examined:
s216
EA
• A
co-‐accused
is
allowed
to
cross-‐examine
the
witness
brought
by
another
accused
person.
This
must
be
done
before
cross
examination
by
the
prosecution:
s217
EA
• A
person,
whether
a
party
or
not
in
a
cause,
may
be
summoned
to
produce
a
document
without
being
summoned
to
give
evidence,
and
if
he
causes
such
document
to
be
produced
in
court
the
court
may
dispense
with
his
personal
attendance:
s218
EA
• A
person
summoned
to
produce
a
document
does
not
become
a
witness
by
the
mere
fact
that
he
produces
it
and
cannot
be
cross-‐examined
unless
and
until
he
is
called
as
a
witness:
s219
EA
EFFECT
OF
FAILURE
TO
CROSS
EXAMINE-
Failure
to
cross
examine
a
witness
on
a
vital
point
he
raised
during
examination
–
in
–
chief,
may
be
regarded
as
an
admission
of
such
issue.
OFORLETE
v.
STATE
PURPOSE
OF
CROSS
EXAMINATION
1.
The
purpose
of
cross-‐examination
is
to
contradict,
destroy,
discredit
the
evidence
of
a
witness.
2.
To
weaken
or
qualify
the
case
of
the
opponents.
3.
It
is
used
as
a
means
of
establishing
the
party’s
case
through
the
opponent’s
witnesses
AWOPEJU
v.
STATE
Cross
examination
must
relate
to
relevant
facts
but
which
are
not
directly
facts
in
issue:-‐S.
215(2)
EA
2011
QUESTIONS
WHICH
MAY
BE
ASKED
IN
CROSS
EXAMINATION
• Leading
questions
may
be
asked
in
Cross
–
Examination-‐S.
221(4)
When
a
witness
cross
examined,
he
may
be
asked
any
questions
which
tend
to
:
a.
test
his
accuracy,
veracity
or
credibility;
or
b.
discover
who
he
is
and
what
is
his
position
in
life;
or
c.
shake
his
credit
by
injuring
his
character-‐S.223
EA
2011
In
considering
the
questions
of
veracity
and
credibility
of
a
witness,
the
court
should
consider
the
following:
• The
witness
knowledge
of
facts
to
which
he
testifies
• The
witness’
disinterestedness
• The
witness’
integrity
• Whether
his
evidence
is
contradictory
or
contradicted
by
surrounding
evidence
Onuoha
v
State
Questions
relating
to
credit
but
are
not
relevant
or
too
remote
to
the
proceedings
may
be
disallowed
by
the
court.
The
court
is
under
an
obligation
to
warn
the
witness
that
he
is
not
obliged
to
answer:
s224
EA
LIMITATIONS
IN
CROSS
EXAMINATION
The
right
to
cross-‐examine
may
be
limited
by
the
following
circumstances.
i.
Section
224(2)(b)
such
questions
are
improper
if
the
imputation
which
they
convey
relates
to
matters
so
remote
in
time,
or
of
such
a
character,
that
the
truth
of
the
imputation
would
not
affect,
or
would
affect
in
a
slight
degree,
the
opinion
of
the
court
as
to
the
credibility
of
the
witness
on
the
matter
to
which
he
testifies;
and
section
224(2)(c)
such
questions
are
improper
if
there
is
a
great
disproportion
between
the
importance
of
the
imputation
made
against
the
witness's
character
and
the
importance
of
his
evidence.
ii.
Where
a
question
is
indecent
or
scandalous
the
court
may
disallow
it:
S.
227
iii.
Where
a
question
is
apparently
intended
to
insult
or
annoy
or
to
needlessly
offensive,
the
court
may
not
allow
it:
S.
228
Section
226
EA:
the
judge
is
empowered
to
report
a
counsel
who
asks
baseless
or
questions
adjudged
to
be
without
reasonable
cause
to
the
Attorney
General
of
the
Federation
or
any
other
authority
to
which
the
legal
practitioner
is
subject.
TECHNIQUES
FOR
CROSS
EXAMINATION
a.
Probing
technique:
pin
down
the
witness
to
get
a
direct
answer
b.
Insinuation
c.
Confirmation
TEN
COMMANDEMENTS
FOR
CROSS
EXAMINATION
1.
Be
brief,
short,
do
not
ask
more
than
one
question
at
a
time.
2.
Avoid
open
questions,
rather
use
closed
questions.
3.
Review
the
questions.
4.
Do
not
ask
question
to
which
you
do
not
know
the
answer.
5.
Listen
to
the
answer
given
by
the
witness.
6.
When
you
elicit
the
required
answer,
stop
probing.
7.
Do
not
be
stereotyped,
change
your
style.
8.
Do
not
give
him
opportunity
to
repair
his
testimony.
9.
Do
not
give
him
opportunity
to
explain
himself.
10.
Do
not
ask
too
many
questions.
OTHER
TIPS
FOR
CROSS
EXAMINATION
a.
Maintain
eye
contact
with
the
witness
always.
b.
Put
previous
inconsistent
statement
made
by
him
to
him
if
you
think
there
are
material
contradictions.
Facts
to
know
about
cross-examination
• Have
a
goal
in
mind
before
deciding
to
cross
examine
–
listen
to
the
examination
in
chief
of
the
witness
• It
is
not
compulsory
to
cross-‐examine
• Do
not
base
your
decision
to
cross-‐examine
on
going
on
a
fishing
expedition
i.e.
with
a
view
to
finding
something
you
can
hold
unto
• Failure
to
cross-‐examine
on
adverse
and
material
evidence
could
be
fatal
to
your
case
Tips
on
effective
cross-examination
• Make
use
of
leading
questions
mostly
• Avoid
the
use
of
open
questions,
rather
make
use
of
closed
questions
as
well
as
direct
questions
(questions
producing
Yes
or
No
answers
should
be
used)
• Aim
at
establishing
facts
• Know
when
to
stop
and
don’t
overemphasise
a
point
that
has
been
scored
already
• Avoid
getting
into
arguments
with
the
witness
• Insist
on
an
answer
to
a
question
asked
• Do
not
interrupt
the
witness
• Structure
your
question
in
a
way
that
the
witness
cannot
pretend
not
to
understand
• Maintain
eye
contact
with
the
witness
(make
sure
the
witness
cannot
make
eye
contact
with
the
lawyer
who
called
him
• Do
not
hesitate
to
expose
inconsistencies
in
his
testimony
• Be
gentle,
polite,
modest
and
kind
to
the
witness
• Avoid
asking
questions
you
do
not
know
the
answer
• Be
adroit,
dynamic
and
flexible
• Ask
as
few
questions
as
possible.
Too
many
questions
may
help
repair
damage
already
done
• Locate
a
witness’s
weak
point
and
exploit
it
Contradiction
of
a
witness
statement
by
previous
evidence:
s232
EA.
The
statement
made
earlier
by
the
witness
in
writing
may
be
brought
to
his
attention
for
the
purpose
of
contradicting
him
Inconsistency
rule
and
statement
made
by
an
accused
person
• Where
a
witness
made
a
statement
before
trial
and
the
statement
is
found
to
be
inconsistent
with
his
testimony,
his
testimony
should
be
seen
as
unreliable
and
the
previous
statement
should
not
be
acted
upon
by
the
court.
However,
does
not
apply
where
the
accused
gives
evidence
RE
–
EXAMINATION
This
is
the
last
stage
of
examination
of
a
witness.
It
takes
place
where
necessary
after
cross
examination.
It
is
conducted
by
the
party
who
called
the
witness:
SECTION
214(3)
EVIDENCE
ACT
2011
PURPOSE/PRINCIPLES
OF
RE-
EXAMINATION
1.
The
aim
of
re-‐examination
is
to
clear
ambiguities,
inconsistencies
doubts
or
haziness
that
arise
out
of
cross-‐examination.
2.
Therefore,
where
is
a
no
cross-examination,
there
cannot
be
re-examination.
3.
It
is
not
an
opportunity
for
the
re-‐examiner
to
elicit
evidence,
which
he
failed
to
elicit
in
his
examination
in
chief.
4,
Leading
questions
shall
not
be
asked
in
re-‐examination
–
S.
221
(2)
5.
No
new
matter
is
entertained
in
re-‐examination
unless
with
leave
of
court.
6.
Where
a
party,
by
leave
of
court
to
introduce
a
new
matter
in
re-examination,
the
adverse
party
is
entitled
to
cross
–
examine
on
that
fresh
issue.-‐S.
215
(3)
7.
Denial
of
a
right
to
re-‐examine
a
witness
is
a
denial
of
a
right
to
fair
hearing.
-‐
Police
v.
Nwabueze.
NB-‐s.84
EA
-‐computer
generated
evidence-‐Dr
Imoro
Kubor
v
Seriake
Dickson.
Also
note
requirement
of
a
certificate
signed
by
person
responsible
for
device:
s84(4)
EA.
See
week
14
above
REFRESHING
MEMORY
–
-SECTION
239
Evidence
Act
Where
a
witness
finds
it
difficult
to
remember
an
event,
which
had
taken
place
a
long
time
ago.
Such
witness
is:
1.
permitted
to
refer
to
any
document
made
by
him
at
the
time
of
the
transaction
or
so
soon
afterwards-‐s.239(1)
EA
2.
he
may
refer
to
any
writing
made
by
any
other
person
and
read
by
the
witness
and
if
he
knew
it
to
be
correct:
s239(2)
EA
3.
An
expert
may
refresh
his
memory
by
reference
to
professional
treatises:
S239(3)
EA
The
process
of
refreshing
memory
may
take
place
at
any
stage
of
examination
either
at
examination
–
in
–
chief,
cross
–
examination
or
re-‐examination.
Any
writing
referred
to
under
sections
239
and
240
of
this
Act,
shall
be
produced
and
shown
to
the
adverse
party
if
he
requires
it,
and
such
party
may,
if
he
pleases,
cross-‐
examine
the
witness
upon
the
writing
-‐S.
241
EA
HOSTILE
WITNESS
• The
general
rule
is
that
a
person
calling
a
witness
is
not
allowed
to
discredit
him.
S.
230
OF
THE
EVIDENCE
ACT;
BABATUNDE
V.
STATE
• However,
when
the
witness
testifies
against
the
party
who
called
him
and
is
unwilling
to
tell
the
truth
or
he
is
evasive
in
the
answers
he
gives.
• A
hostile
witness
is
one
who
in
the
opinion
of
the
court,
is
biased
against
the
party
who
calls
him,
is
unwilling
to
testify
or
who
supports
the
other
party:
Esan
v
State
• This
is
a
witness
who
bears
hostile
animus
to
the
party
calling
him
and
is
unwilling
to
testify
or
tell
the
truth
• The
party
calling
the
witness
will
have
to
apply
to
the
Court
to
declare
the
witness
a
Hostile
Witness
and
the
court
satisfying
itself,
can
declare
a
witness
hostile:
s230
EA.
He
may
then
be
cross
examined:
Gaji
v
State,
Iluonu
v
Chiekwu.
CT
will
look
at
the
surrounding
circumstances
before
declaring
the
witness
as
hostile
• NB
-‐the
mere
fact
that
witness
gives
evidence
not
FAVOURABLE
to
the
party
calling
him
does
not
prima
facie
make
him
a
hostile
witness.
• Babatunde
v
State:
a
party
calling
the
witness
is
deemed
to
be
holding
out
the
witness
as
a
witness
of
truth.
Therefore,
a
party
calling
a
witness
cannot
discredit
him
by
general
evidence
of
bad
character
except
where
the
court
declares
him
hostile:
s230
EA.
THE
EFFECT
OF
THE
COURT
DECLARING
A
WITNESS
HOSTILE
ARE
AS
FOLLOWS:
a. He
can
be
cross-‐examined
b. Can
ask
him
leading
questions
c. He
can
be
discredited
using
previous
inconsistent
statements
made
by
him.
(leave
of
court)
S.
231
of
the
Evidence
Act.
POWER
OF
THE
COURT
TO
PUT
QUESTIONS
TO
ANY
WITNESS
• The
Court
has
the
power
to
put
questions
to
any
witness
before
it
-‐s.246
EA
2011
• The
Judge
or
magistrate
is
allowed
under
CPL/CPCL
to
put
questions
to
witnesses
in
order
to
reach
a
just
delivery
of
the
case.
• The
aim
is
to
clear
up
ambiguities
or
a
point
left
obscure
in
his
testimony
for
the
determination
of
the
case
justly.
• The
questions
asked
must
be
relevant
under
the
Act
and
must
be
duly
proved
S.
246
(2)
• However,
the
Court
is
not
to
descend
into
the
arena
or
ask
damaging
questions
to
the
witnesses
or
an
accused
person.
OKORIE
V.
STATE
• A
counsel
cannot
raise
objection
to
the
Court’s
power
to
call/recall
witnesses
and
to
put
questions
to
them.
–
S.
246
of
the
Evidence
Act
2011;
ONUORAH
VS.
THE
STATE.
• Note
that
the
Court
cannot
compel
a
witness
who
is
not
compellable
to
answer
its
questions.
S.
36
(5)
&
(11)
of
the
1999
Constitution
as
amended,
AKINFE
VS.
THE
STATE
TINUBU
V.
IMB
SECURITIES
POWER
OF
COURT
TO
CALL
OR
RECALL
A
WITNESS
S.
200
CPL;
S.
237
(1)
CPCL;
S.
197
ACJL
• The
court
has
powers
to
call
any
witness
whether
or
not
such
a
witness
has
been
called
by
either
party.
NB-This
power
is
only
available
in
criminal
matters.-
BELLGAM
V.
BELLGAM
• This
power
extends
to
recalling
a
witness
after
the
close
of
the
defence
on
matters
unforeseen
which
arose
during
the
case
for
the
defence-‐ONUOHA
V.
STATE
• This
power
by
no
means
allows
a
judge
to
descend
to
the
arena
of
the
conflict
-‐OKORIE
V.
STATE
a
new
witness
was
called
by
the
Judge,
the
questions
asked
the
witness
elected
evidence,
which
the
Judge
relied
on
to
convict
the
accused.
The
conviction
was
quashed
on
appeal.
• This
power
to
call
or
recall
witnesses
may
be
exercised
at
any
stage
of
the
proceedings
before
verdict/conviction/judgment-‐Uso
v.
Police.
• CT
may
even
call
a
witness
not
earlier
called
by
either
party
• For
the
just
determination
of
the
case
POWER
OF
A
PARTY
TO
RECALL
WITNESS
A
party
to
proceedings
may
have
a
crucial
need
to
recall
a
witness
for
further
examination.
He
shall
apply
to
the
court
and
support
his
application
with
facts
as
to
why
and
what
he
intends
to
put
to
the
witness-‐
ALLY
V.
STATE
ADMISSIBILITY
OF
DOCUMENTARY
EVIDENCE
IN
CRIMINAL
TRIALS
• The
basis
for
the
admissibility
of
any
document
tendered
is
if
it
is
relevant
to
the
facts
in
issue
or
facts
relevant
to
facts
in
issue:
Section
1&
2
of
the
Evidence
Act
2011.
• A
document
not
before
the
Court
or
admitted
in
evidence
cannot
be
used
to
contradict
a
witness
during
cross-examination.
The
admissibility
of
the
documents
usually
tendered
in
criminal
trials
are
explained
below:
A. CONFESSIONAL
STATEMENT:
see
section
28
and
section
29(1)
–
(3),
(5)
EA
• This
is
admissible
and
the
Court
can
safely
convict
on
it
if
voluntarily
made
by
the
accused.
S.
28
of
the
Evidence
Act
and
YESUFU
VS
THE
STATE.
• In
Lagos,
a
confessional
statement
must
be
video
recorded
or
made
in
the
presence
of
a
legal
practitioner
in
order
for
it
to
be
admissible
in
evidence:
S.
9(3)
of
the
ACJL.
• If
the
accused
denies
making
the
statement
(this
is
called
retraction),
the
Court
will
still
admit
it
and
decide
what
weight
is
to
be
attached
to
it.
• Section
29(1)
In
any
proceeding,
a
confession
made
by
a
defendant
may
be
given
in
evidence
against
him
in
so
far
as
it
is
relevant
to
any
matter
in
issue
in
the
proceedings
and
is
not
excluded
by
the
court
in
pursuance
of
this
section.
• Section
29(2):
If,
in
any
proceeding
where
the
prosecution
proposes
to
give
in
evidence
a
confession
made
by
a
defendant,
it
is
represented
to
the
court
that
the
confession
was
or
may
have
been
obtained
—
(a) by oppression of the person who made it; or
(b)
in
consequence
of
anything
said
or
done
which
was
likely,
in
the
circumstances
existing
at
the
time,
to
render
unreliable
any
confession
which
might
be
made
by
him
in
such
consequence,
the
court
shall
not
allow
the
confession
to
be
given
in
evidence
against
him
except
in
so
far
as
the
prosecution
proves
to
the
court
beyond
reasonable
doubt
that
the
confession
(notwithstanding
that
it
may
be
true)
was
not
obtained
in
a
manner
contrary
to
the
provisions
of
this
section.
• Section
29(3):
In
any
proceeding
where
the
prosecution
proposes
to
give
in
evidence
a
confession
made
by
a
defendant,
the
court
may
of
its
own
motion
require
the
prosecution,
as
a
condition
of
allowing
it
to
do
so,
to
prove
that
the
confession
was
not
obtained
as
mentioned
in
either
subsection
(2)(a)
or
(b)
of
this
section.
• Where
confessional
statement
is
made
by
co-‐accused
in
the
presence
of
others,
not
admissible
against
them
unless
they
adopt
said
statement
by
word
or
conduct:
s29(4)
EA
• Section
29(5)
EA:
In
this
section
"oppression"
includes
torture,
inhuman
or
degrading
treatment,
and
the
use
or
threat
of
violence
whether
or
not
amounting
to
torture.
• Accused
may
be
convicted
solely
based
on
his
confessional
statement
if
the
court
is
fully
satisfied:
Nwachukwu
v
State,
Gabriel
v
State,
STEPS
TAKEN
BY
THE
COURT
WHEN
THERE
IS
AN
ALLEGATION
OF
INVOLUNTARINESS
• If
the
accused
alleges
that
he
made
the
statement
out
of
duress
or
oppression,
the
Court
must
conduct
a
TRIAL
WITHIN
A
TRIAL
in
order
to
ascertain
its
voluntariness
or
not:
Ike
v
State.
Only
admissible
if
voluntary
• In
such
trial,
the
prosecution
will
first
open
its
case
to
show
that
the
statement
was
made
voluntary
then
the
defence
will
later
open
its
case.
• The
Court
must
rule
on
it
and
if
it
holds
that
the
confessional
statement
was
made
voluntarily
it
will
admit
it
in
evidence
and
the
normal
trial
will
proceed.
TENDERING
OF
CONFESSIONAL
STATEMENT
• A
confessional
statement
must
be
tendered
in
whole
whether
a
part
is
favourable
to
the
accused
or
not.
• It
must
also
implicate
the
accused.
See
R
V.
ITULE.
• Proper
foundation
must
be
laid
for
its
admissibility
through
the
Investigating
Police
Officer
–
normally
by
stating
that
the
accused
was
cautioned
before
he
wrote
the
confessional
statement,
that
the
accused
wrote
the
statement
voluntarily
and
signed
it;
the
IPO
signed
the
statement
and
the
statement
was
countersigned
by
a
superior
police
officer
B. EXPERT
EVIDENCE
The
general
rule
is
that
the
opinion
of
an
individual
is
inadmissible
evidence
–S.67
EA
Persons
specially
skilled
in
certain
areas:
s68
EA
Must
possess
skill
and
qualification
to
be
so
referred:
Essien
v
R
Rejection
of
expert
evidence
by
court:
Arise
v
State,
Aladu
v
State
Expert
evidence
is
mandatory
to
prove
some
offences:
Ishola
v
State,
Stevenson
v
Police:
unlawful
possession
of
hard
drugs.
However,
in
Chukwu
v
FRN:
CT
held
where
an
accused
confesses
guilt,
there
may
be
no
need
to
obtain
expert
evidence
However,
such
evidence
of
opinion
may
be
admissible
if
it
falls
within
the
exceptions
created
under
Ss.
68
–75
EA
One
of
the
exceptions
is
in
respect
of
expert
evidence.
S.
68
of
the
Evidence
Act
2011.
•
For
it
to
be
admissible,
proper
foundation
must
be
laid
to
show
the
expert’s
qualification,
skill
and
experience.
• Also
the
expert
can
put
in
his
expert
Report
without
being
called
in
Court.
AZU
Vs.
THE
STATE.
The
general
rule
is
that
the
opinion
of
a
person
is
not
admissible
in
Court
except
as
provided
in
the
Evidence
Act:
Section
67
EA
Section
68(1):
When
the
court
has
to
form
an
opinion
upon
a
point
of
foreign
law,
customary
law
or
when
and
custom,
or
of
science
or
art,
or
as
to
identity
of
handwriting
or
finger
impressions,
the
opinions
upon
that
point
of
persons
specially
skilled
in
such
foreign
law,
customary
law
or
custom,
or
science
or
art,
or
in
questions
as
to
identity
of
handwriting
or
finger
impressions,
are
admissible.
(2)
Persons
so
specially
skilled
as
mentioned
in
subsection
(1)
of
this
section
are
called
experts.
Section
69:
Where
there
is
a
question
as
to
foreign
law,
the
opinions
of
experts
who
in
their
Opinions
as
to
foreign
profession
are
acquainted
with
such
law
are
admissible
evidence
of
it,
though
such
experts
may
produce
to
the
court
books
which
they
declare
to
be
works
of
authority
upon
the
foreign
law
in
question,
which
books
the
court,
having
received
all
necessary
explanations
from
the
expert,
may
construe
for
itself.
Section
70:
In
deciding
questions
of
customary
law
and
custom,
the
opinions
of
traditional
rulers,
chiefs
or
other
persons
having
special
knowledge
of
the
customary
law
and
custom
and
any
book
or
manuscript
recognised
as
legal
authority
by
people
indigenous
to
the
locality
in
which
such
law
or
custom
applies,
are
admissible.
Section
71:
Facts
not
otherwise
relevant
are
relevant
if
they
support
or
are
inconsistent
with
the
opinions
of
experts,
when
such
opinions
are
admissible.
Section
72(1):
When
the
court
has
to
form
an
opinion
as
to
the
person
by
whom
any
document
was
handwriting,
when
written
or
signed,
the
opinion
of
any
person
acquainted
with
the
handwriting
of
the
person
by
admissible,
whom
it
is
supposed
to
be
written
or
signed
that
it
was
or
was
not
written
or
signed
by
that
person,
is
admissible.
(2)
A
person
is
said
to
be
acquainted
with
the
handwriting
of
another
person
when
he
has
seen
that
person
write,
or
when
he
has
received
documents
purporting
to
be
written
by
that
person
in
answer
to
documents
written
by
himself
or
under
his
authority
and
addressed
to
that
person,
or
when
in
the
ordinary
course
of
business,
documents
purporting
to
be
written
by
that
person
have
been
habitually
submitted
to
him.
Section
73.
(1)
When
the
court
has
to
form
an
opinion
as
to
the
existence
of
any
general
custom
or
right,
the
opinions,
as
to
the
existence
of
such
custom
or
right,
of
persons
who
would
be
likely
to
know
of
its
existence
if
it
existed
are
admissible.
(2)
The
expression
"general
custom
or
right"
includes
customs
or
rights
common
to
any
considerable
class
of
persons.
Section 74: When the court has to form an opinion as to —
(a) the usages and tenets of any body of men or family;
(b)the constitution and government of any religious or charitable foundation; or
(c)the
meaning
of
words
or
terms
used
in
particular
districts
or
by
particular
classes
of
people,
the
opinions
of
persons
having
special
means
of
knowledge
on
the
matters
specified
in
this
section,
are
admissible.
Section
75:
When
the
court
has
to
form
an
opinion
as
to
the
relationship
of
one
person
to
another,
the
opinion
expressed
by
conduct,
as
to
the
existence
of
such
relationship
of
any
person
who,
as
a
member
of
the
family
or
otherwise,
has
special
means
of
knowledge
on
the
subject,
is
admissible:
Provided
that
such
opinion
shall
not
be
sufficient
to
prove
a
marriage
in
proceeding
for
a
divorce
or
in
a
petition
for
damages
against
an
adulterer
or
in
a
prosecution
for
bigamy.
Section
76:
Whenever
the
opinion
of
any
living
person
is
admissible,
the
grounds
on
which
such
opinion
is
based
are
also
admissible.
Cross
examination
of
an
expert
witness
• Two
aims
must
be
borne
in
mind:
to
discredit
him
and
expose
him
as
unreliable
witness
to
his
supposed
field
of
expertise
• You
need
to
present
alternative
conclusion
or
inference
that
can
be
drawn
to
the
set
of
facts
upon
which
his
opinion
is
based
• He
can
also
be
tackled
on
the
ground
that
he
lacks
full
understanding
of
the
facts
which
he
worked
• To
be
able
to
do
this,
you
need
to
achieve
a
working
knowledge
of
that
practice
field
by
consulting
other
experts
C.
POLICE
REPORT
(CASE
DIARY).
• The
general
rule
is
that
the
Police
Report
is
not
admissible
in
evidence
against
an
accused.
(a)
if
the
maker
of
the
statement
either
—
(i)had
personal
knowledge
of
the
matters
dealt
with
by
the
statement,
or
(ii)where
the
document
in
question
is
or
forms
part
of
a
record
purporting
to
be
a
continuous
record
made
the
statement
(in
so
far
as
the
matters
dealt
with
by
it
are
not
within
his
personal
knowledge)
in
the
performance
of
a
duty
to
record
information
supplied
to
him
by
a
person
who
had,
or
might
reasonably
be
supposed
to
have,
personal
knowledge
of
those
matters;
and
(b) if the maker of the statement is called as a witness in the proceeding:
Provided
that
the
condition
that
the
maker
of
the
statement
shall
be
called
as
a
witness
need
not
be
satisfied
if
he
is
dead,
or
unfit
by
reason
of
his
bodily
or
mental
condition
to
attend
as
a
witness,
or
if
he
is
outside
Nigeria
and
it
is
not
reasonably
practicable
to
secure
his
attendance,
or
if
all
reasonable
efforts
to
find
him
have
been
made
without
success.
(2)
if
having
regard
to
all
the
circumstances
of
the
case
it
is
satisfied
that
undue
delay
or
expense
would
otherwise
be
caused,
order
that
such
a
statement
as
is
mentioned
in
subsection
(1)
of
this
section
shall
be
admissible
as
evidence
or
may,
without
any
such
order
having
been
made,
admit
such
a
statement
in
evidence
notwithstanding
that
-
In any proceeding, the court may at any stage of the proceeding,
(a)the maker of the statement is available but is not called as a witness; and
(b)the
original
document
is
not
produced,
if
in
lieu
of
it
there
is
produced
a
copy
of
the
original
document
or
of
the
material
part
of
it
certified
to
be
a
true
copy
in
such
manner
as
may
be
specified
in
the
order
or
as
the
court
may
approve,
as
the
case
may
be.
(3)
statement
made
by
a
person
interested
at
a
time
when
proceedings
were
pending
or
anticipated
involving
a
dispute
as
to
any
fact
which
the
statement
might
tend
to
establish.
(4)
For
the
purposes
of
this
section,
a
statement
in
a
document
shall
not
be
deemed
to
have
been
made
by
a
person
unless
the
document
or
the
material
part
of
it
was
written,
made
or
produced
by
him
with
his
own
hand,
or
was
signed
or
initialed
by
him
or
otherwise
recognised
by
him
in
writing
as
one
for
the
accuracy
of
which
he
is
responsible.
(5)
For
the
purpose
of
deciding
whether
or
not
a
statement
is
admissible
as
evidence
by
virtue
of
this
section,
the
court
may
draw
any
reasonable
inference
from
the
form
or
contents
of
the
document
in
which
the
statement
is
contained,
or
from
any
other
circumstances,
and
may,
in
deciding,
whether
or
not
a
person
is
fit
to
attend
as
a
witness,
act
on
a
certificate
purporting
to
be
the
certificate
of
a
registered
medical
practitioner.
• Section
83
E.A.
2011
provides
that
the
primary
means
of
producing
a
document
is
the
production
of
the
original
document.
But
that
is
not
the
only
requirement.
An
addition
requirement
contained
in
section
83(1)(a)
E.A.
2011,
is
that
contents
of
the
document
itself
must
emanate
from
the
personal
knowledge
of
the
maker.
• Also
section
83(1)(b)
E.A.
2011
says
that
the
person
who
made
the
document
must
be
called.
But
section
83(1)(b)
need
not
be
satisfied
if
the
maker
is
dead,
unfit,
is
outside
Nigeria
and
getting
him
here
would
be
unreasonable,
or
if
the
maker
of
the
document
cannot
be
found.
• Section
83(2)
E.A.
means
that
the
even
though
primary
means
of
proof
of
a
document
is
the
original
document,
there
are
circumstances
where
secondary
evidence
of
the
document
may
be
admissible
in
evidence.
The
primary
method
is
to
produce
the
original
document
itself.
Other
Categories
of
Documents
• Section
85
E.A.
2011
says
that
“the
contents
of
documents
can
be
proved
by
primary
or
secondary
evidence”.
• Section
86
E.A.
2011
says
that
the
primary
evidence
is
the
document
itself
that
is
produced
for
the
court.
Section
86
E.A.
2011:
86.(1)
Primary
evidence
means
the
document
itself
produced
for
the
inspection
of
the
court.
(2)Where
a
document
has
been
executed
in
several
parts,
each
part
shall
be
primary
evidence
of
the
document.
(3)Where
a
document
has
been
executed
in
counterpart,
each
counterpart
being
executed
by
one
or
some
of
the
parties
only,
each
counterpart
shall
be
primary
evidence
as
against
the
parties
executing
it.
(4)
Where
a
number
of
documents
have
all
been
made
by
one
uniform
process,
as
in
the
case
of
printing,
lithography,
photography,
computer
or
other
electronic
or
mechanical
process,
each
shall
be
primary
evidence
of
the
contents
of
the
rest;
but
where
they
are
all
copies
of
a
common
original,
they
shall
not
be
primary
evidence
of
the
contents
of
the
original.
Secondary
evidence
is
defined
by
section
87
E.A.
2011.
This
includes
certified
true
copies.
Section
87
E.A.
2011
says:
87.
Secondary
evidence
includes—
(a)
certified
copies
given
under
the
provisions
hereafter
contained
in
this
Act;
(b)
copies
made
from
the
original
by
mechanical
or
electronic
processes
which
in
themselves
ensure
the
accuracy
of
the
copy,
and
copies
compared
with
such
copies;
(d) counterparts of documents as against the parties who did not execute them; and
(e)
oral
accounts
of
the
contents
of
a
document
given
by
some
person
who
has
himself
seen
it.
Section
88
E.A.
2011
provides
that
documents
shall
be
proved
by
primary
evidence,
except
as
mentioned
in
the
Evidence
Act
2011.
The
exceptions
are
set
out
in
Section
89
E.A.
2011
which
says:
89.
Secondary
evidence
may
be
given
of
the
existence,
condition
or
contents
of
a
document
when-
(a)the
original
is
shown
or
appears
to
be
in
the
possession
or
power—
(i)
of
the
person
against
whom
the
document
is
sought
to
be
proved,
or
(ii)
of
any
person
legally
bound
to
produce
it,
and
when
after
the
notice
mentioned
in
section
91
such
person
does
not
produce
it;
(b)
the
existence,
condition
or
contents
of
the
original
have
been
proved
to
be
admitted
in
writing
by
the
person
against
whom
it
is
proved
or
by
his
representative
in
interest;
(c)
the
original
has
been
destroyed
or
lost
and
in
the
latter
case
all
possible
search
has
been
made
for
it;
(d) the original is of such a nature as not to be easily movable;
(e) the original is a public document within the meaning of section 102;
(f)
the
original
is
a
document
of
which
a
certified
copy
is
permitted
by
this
Act
or
by
any
other
law
in
force
in
Nigeria,
to
be
given
in
evidence;
(g)
the
originals
consist
of
numerous
accounts
or
other
documents
which
cannot
conveniently
be
examined
in
court,
and
the
fact
to
be
proved
is
the
general
result
of
the
whole
collection;
or
Section
90
E.A.
2011
specifies
the
types
of
secondary
evidence
that
may
be
admissible
in
the
various
exceptions
set
out
in
section
89
E.A.
2011.
Section
90
E.A.
2011
says:
90.
(1)
The
secondary
evidence
admissible
in
respect
of
the
original
documents
referred
to
in
the
several
paragraphs
of
section
89
is
as
follows—
(a)
in
paragraphs
(a),
(c)
and
(d),
any
secondary
evidence
of
the
contents
of
the
document
is
admissible;
(c)
in
paragraph
(e)
or
(f),
a
certified
copy
of
the
document,
but
no
other
secondary
evidence,
is
admissible;
(d)
in
paragraph
(g),
evidence
may
be
given
as
to
the
general
result
of
the
documents
by
any
person
who
has
examined
them
and
who
is
skilled
in
the
examination
of
such
documents;
and
(e)
in
paragraph
(h)
the
copies
cannot
be
received
as
evidence
unless
it
is
first
be
proved
that—
(i)
the
book
in
which
the
entries
copied
were
made
was
at
the
time
of
making
one
of
the
ordinary
books
of
the
bank,
(ii)
the
entry
was
made
in
the
usual
and
ordinary
course
of
business,
(iii)
the
book
is
in
the
control
and
custody
of
the
bank,
which
proof
may
be
given
orally
or
by
affidavit
by
an
officer
of
the
bank,
and
(iv)
the
copy
has
been
examined
with
the
original
entry
and
is
correct,
which
proof
must
be
given
by
some
person
who
has
examined
the
copy
with
the
original
entry,
and
may
be
given
orally
or
by
affidavit.
For
our
purposes,
the
lecturer
focussed
on
secondary
evidence
of
public
documents,
which
is
an
exception
set
out
in
Section
89(e)
E.A.
2011.
Therefore
the
most
relevant
section
of
section
90
is
section
90(c)
E.A
2011.
Section
91:
Secondary
evidence
of
the
contents
of
the
documents
referred
to
in
section
89(a)
shall
not
be
given
unless
the
party
proposing
to
give
such
secondary
evidence
has
previously
given
to
the
party
in
whose
possession
or
power
the
document
is,
or
to
a
legal
practitioner
employed
by
such
party,
such
notice
to
produce
it
as
is
prescribed
by
law;
and
if
no
notice
to
produce
is
prescribed
by
law
then
such
notice
as
the
court
considers
reasonable
in
the
circumstances
of
the
case.
Provided
that
such
notice
shall
not
be
required
in
order
to
render
secondary
evidence
admissible
in
any
of
the
following
cases,
or
in
any
other
case
in
which
the
court
thinks
fit
to
dispense
with
it—
(a)
when
the
document
to
be
proved
is
itself
a
notice;
(b)
when,
from
the
nature
of
the
case,
the
adverse
party
must
know
that
he
will
be
required
to
produce
it;
(c)
when
it
appears
or
is
proved
that
the
adverse
party
has
obtained
possession
of
the
original
by
fraud
or
force;
(d) when the adverse party or his agent has the original in court; or
(e) when the adverse party or his agent has admitted the loss of the document.
The terms, ‘Public Documents’ are defined in section 102 E.A. 2011:
Section
102.
The
following
documents
are
public
documents—
(a)
documents
forming
the
official
acts
or
records
of
the
official
acts
of—
Section
103:
All
documents
other
than
public
documents
are
private
documents.
The
conditions
for
admissibility
of
public
documents
are
contained
in
Sections
104
–
105
E.A.
2011.
Section
104.-(1)
Every
public
officer
having
the
custody
of
a
public
document
which
any
person
has
a
right
to
inspect
shall
give
that
person
on
demand
a
copy
of
it
on
payment
of
the
legal
fees
prescribed
in
that
respect,
together
with
a
certificate
written
at
the
foot
of
such
copy
that
it
is
a
true
copy
of
such
document
or
part
of
it
as
the
case
may
be.
(2)
The
certificate
mentioned
in
subsection
(1)
of
this
section
shall
be
dated
and
subscribed
by
such
officer
with
his
name
and
his
official
title,
and
shall
be
sealed,
whenever
such
officer
is
authorized
by
law
to
make
use
of
a
seal,
and
such
copies
so
certified
shall
be
called
certified
copies.
(3)An
officer
who,
by
the
ordinary
course
of
official
duty,
is
authorized
to
deliver
such
copies,
shall
be
deemed
to
have
the
custody
of
such
documents
within
the
meaning
of
this
section.
Section
105.
Copies
of
documents
certified
in
accordance
with
section
104
may
be
produced
in
proof
of
the
contents
of
the
public
documents
or
parts
of
the
public
documents
of
which
they
purport
to
be
copies.
If
a
public
document
is
properly
certified
as
required
by
law,
it
is
admissible
without
the
need
to
call
a
witness.
You
simply
tender
to
the
court
the
public
document
WEEK
16-TRIAL
4:
PRESENTATION
OF
THE
CASE
FOR
THE
DEFENCE
After
the
last
prosecution
witness
is
excused
by
the
court,
prosecution
will
close
his
case.
Court
will
consider
whether
a
prima
facie
case
has
been
made
by
the
prosecution
to
necessitate
the
accused
person
to
open
his
case.
If
it
appears
to
the
court
that
the
case
has
not
been
made
out
sufficiently,
then
defendant
cannot
be
asked
to
prove
his
innocence.
This
results
in
a
discharge:
s239(1)
ACJL,
286
CPL,
s191(3)
CPCL.
Discharge
whether
the
accused
is
represented
by
counsel
or
not.
If
represented
by
counsel,
it
is
expected
that
counsel
will
make
the
application
but
court
can
discharge
suo
motu.
Note
that
if
making
a
no
case
submission,
no
requirement
that
it
must
be
in
writing
or
filed
before
it
can
be
made.
Counsel
can
orally
make
a
no
case
submission
at
the
close
of
prosecution’s
case.
IN
OPENING
THE
CASE
FOR
THE
DEFENCE,
THE
ACCUSED
PERSON
HAS
TWO
BROAD
OPTIONS;
• He
may
make
a
No
Case
Submission.
• He
may
choose
to
enter
into
his
own
defence.
A-NO
CASE
SUBMISSION/RULING
• This
can
be
made
by
the
defence
or
the
Court
on
its
own
volition
at
the
close
of
the
prosecution’s
case
where
a
prima
facie
case
has
not
been
established
against
the
accused:
DABOR
&
ANOR
v.
THE
STATE
• When
it
is
made
by
the
court,
it
is
called
a
no
case
ruling.
• It
may
be
made
in
respect
of
one
count
of
offence
or
the
entire
charge
sheet.
The
court
must
make
a
ruling
on
each
count
of
offence
separately-‐AJANI
&
ORS
v.
R
PURPOSE
OF
A
NO
CASE
SUBMISSION-
To
prevent
the
accused
from
entering
his
defence
and
prove
his
innocence
and
to
save
the
Court’s
time.
EMEDO
VS.
THE
STATE;
S.36(5)
• The Prosecution may be allowed to respond on point of Law by way of a Reply
NB:
CPCL
permits
AG
to
apply
and
call
additional
witnesses.
This
is
not
the
same
as
the
ex-improviso
rule
VISIT
TO
THE
LOCUS
IN
QUO
(THE
SCENE
OF
AN
OFFENCE).
If
court
is
satisfied
that
there
is
need
to
inspect
immovable
real
evidence
by
the
Court
for
the
proper
determination
of
the
case,
then
the
court
will
adjourn
and
continue
proceedings
there
or
adjourn
and
proceed
to
view
and
return
to
court.
SS.
127
of
the
Evidence
Act,
S.
205
of
the
ACJL,
S.
207
of
the
CPL
and
S.
243
of
the
CPCL.
WHEN
CAN
A
VISIT
TO
THE
LOCUS
BE
CONDUCTED
It
may
be
conducted
on
the
application
of
the
parties
or
the
Court
suo
motu:
Unipetrol
v
Adireje,
Ehikioya
v
COP
It
can
be
made
at
any
time
before
judgment-‐ARUTU
V.
R
(done
after
final
address).
But
the
earlier
the
better
as
it
is
to
assist
the
court
to
come
to
a
better
understanding
of
the
matter.
PROCEDURE
FOR
THE
CONDUCT
OF
A
VISIT
TO
THE
LOCUS
IN
QUO
There
are
two
(2)
ways
as
follows:
1. The
Court
may
adjourn
to
the
locus
to
inspect
and
continue
trial
there
by
taking
witnesses
in
evidence
and
later
the
Court
will
reconvene
in
the
regular
Court
to
continue
the
trial,
without
recalling
the
witnesses.
–
S.
127(2)
(a)
of
the
Evidence
Act
COP
VS.
OLAOPA.
2. The
Court
will
adjourn
to
visit
the
locus,
take
notes
of
the
things
observed
and
reconvene
in
Court
to
continue
proceedings
where
it
will
take
the
testimony
of
witnesses
in
Court.
–
S.
127(2)
(b)
of
the
Evidence
Act
R
VS.
DOGBE,
AREMU
V
AG
WESTERN
NIGERIA,
OGUNTOLA
V
STATE
EFFECT
OF
NON-COMPLIANCE
WITH
THE
ABOVE
METHODS-
It
will
not
vitiate
trial
unless
such
failure
occasioned
a
miscarriage
of
justice-
AREMU
V.
AG
WESTERN
NIGERIA
NOTE-‐The
accused
persons
must
all
be
present
at
the
locus
criminis:
s207(2)
CPL,
s243
CPCL,
Adunfe
v
IGP.
Opportunity
to
clarify
uncertainties
and
contradictions.
Not
to
present
fresh
evidence
different
from
that
already
adduced
at
court.
Note:
no
matter
the
number
of
accused
persons
or
difficulties,
this
must
be
complied
with.
However,
non-‐compliance
will
not
vitiate
the
trial
unless
it
occasioned
a
miscarriage
of
justice.
ADUNFE
Vs.
IGP
(125
accused
persons
not
taken
and
not
all
were
taken
to
the
locus)-‐
APPEAL
DISMISSED(Not
a
miscarriage
of
justice)
–
particularly
if
their
counsel
was
present
at
the
locus.
LIMITATIONS
ARISING
DURING
VISIT
TO
LOCUS
IN
QUO
It
is
not
an
opportunity
for
either
of
the
parties
to
present
a
fresh
evidence
different
from
the
one
already
adduced
before
the
court.-ODICHE
v.
CHIBOGWU
FINAL
OR
CONCLUDING
ADDRESSES
SECTIONS
241&242
CPL;
192,
193
CPCL
273
ACJL
At
the
end
of
case
for
defence,
accused
or
counsel
can
deliver
a
final
address,
prosecutor
may
reply.
This
is
the
summing
up
of
the
facts
and
evidence
adduced
before
the
Court
applying
the
Law
to
them
and
urging
the
Court
to
return
verdict
in
the
favour
of
a
party.
It
does
not
constitute
evidence:
R
v
COBOLAH
ORDER
OF
PRESENTING
FINAL
ADDRESS
• The
accused
is
to
address
the
Court
first,
and
• Then
the
Prosecution
may
reply
and
• Accused
has
a
right
to
further
reply
on
POINTS
OF
LAW.
LEGAL
STATUS
OF
FINAL
ADDRESS
AND
REPLY
The
final
address
and
reply
is
not
part
of
evidence
and
will
not
vitiate
the
trial
if
not
done
-‐HASSAN
V.
UNAM.
The
Court
can
write
its
Judgment
before
the
final
addresses
of
the
parties.
–
NDU
VS.
THE
STATE
R
V.
COBOLAH.
(this
is
not
ADVISABLE)-‐
QUERY-S.294(1)
CFRN
EFFECT
OF
DENIAL
OF
A
PARTY’S
RIGHT
TO
ADDRESS
BY
A
JUDGE
Generally,
the
right
to
address
is
a
constitutional
right
of
the
accused
and
the
court
cannot
deny
the
parties-‐ISHERU
V.
AYOADE.
However,
where
the
right
to
address
is
denied
and
it
occasioned
a
miscarriage
of
justice,
the
proceedings
may
be
SET
ASIDE-‐
OBODO
V.
OLANWU
Both
CPL
&
CPCL
do
not
provide
form
a
final
address
should
take
but
S273(2)
ACJL
states
that
they
are
expected
to
be
in
writing
and
in
open
court.
PROSECUTION’S
RIGHT
OF
REPLY
A
prosecutors
right
of
reply
depends
on
the
conduct
of
the
defence
and
the
status
of
the
prosecutor.
He
could
be
a
law
officer,
police
officer
or
private
prosecutor
A-LAW
OFFICERS
• Where
the
Prosecutor
is
a
law
officer,
he
has
an
automatic
right
of
reply
to
the
final
address
of
the
accused
Proviso
to
S.
202
CPL
and
S.243
CPL;
S.194(3)
CPCL;
S.271
ACJL
AWOBUTU
VS.
THE
STATE;
OSAHON
V
FRN
• A
Law
Officer
INCLUDE
the
AG,
Solicitor-general,
DPP,
Pupil/
Senior/principal
State
Counsel,
even
a
Private
Legal
Practitioner(WITH
FIAT)-
S.1
CC;
S.2CPL;
STATE
V.OKPEGBORO
• The
right
of
reply
of
a
law
officer
is
at
his
discretion.
He
cannot
be
compelled
by
the
court
to
reply
to
a
final
address.
• He
cannot
be
refused
the
exercise
of
this
right
of
reply:
ADAMU
v.
AG
BENDEL
STATE
NOTE-a
police
officer
who
is
a
legal
practitioner
equally
has
a
right
of
reply.
QUERY
(Does
he
need
fiat
UNDER
CPCL
AND
CPCL).
B. POLICE
AND
PRIVATE
PROSECUTORS
The
right
of
reply
of
a
police
officer
and
a
private
prosecutor
(WITH
AG’S
FIAT)
depends
on
the
following;
1. If
no
witness
was
called
for
the
defence
EXCEPT
the
accused
himself
or
a
witness
testifying
as
to
the
accused’s
character
ONLY
and
accused
does
not
tender
any
documents
in
evidence,
then
the
Prosecution
has
NO
right
of
reply.-‐ACHAJI
ORS
V.
COP,
s241
CPL
NOTE-‐
In
the
NORTH,
though
no
reply,
they
may
adduce
evidence
of
the
accused’s
previous
conviction
-‐S.194(2)CPCL
2. If
the
defence
introduced
a
new
matter
in
his
address
which
is
not
supported
by
the
evidence
adduced
in
his
defence,
the
Prosecution
MAY
reply
with
the
LEAVE
OF
COURT.-‐
S.194
(1)
of
the
CPCL,
S.
241
of
the
CPL
and
S.
269(1)
of
the
ACJL.
3. If
the
accused
called
witnesses
other
than
as
to
character
or
tenders
any
document
not
relating
to
character
in
support
of
his
case,
the
Prosecution
SHALL
have
a
right
of
reply.
STATE
VS.
SANUSI,
s242
CPL,
s194(1)
CPCL
For
the
purposes
of
determining
a
right
of
reply,
testimony
of
the
accused
is
not
treated
as
testimony
of
witness
to
enable
prosecutor
acquire
a
right
of
reply:
ACHAJI
V
POLICE
Week
17:
JUDGMENT
AND
SENTENCING
279
ACJL.
STATE
v
LOPEZ
[1968]1
All
NLR
356.
But
Proviso
to
s245
CPL:
magistrate
is
allowed
to
deliver
an
oral
judgment.
(provided
that
(a)
records
briefly
in
the
book
his
decision
thereon
and
where
necessary
his
reasons
for
such
decision
and
delivers
an
oral
judgment,
or
(b)
records
such
information
in
a
prescribed
form.
This
is
because
the
magistrate
court
sits
on
some
many
cases
(as
a
court
of
summary
jurisdiction)
But
under
S268
&
269
CPCL
and
275
ACJL,
magistrate
cannot
deliver
oral
judgment
2. Every
valid
judgement
must
contain
the
point
or
points
for
determination.
279
ACJL,
AIGBE
v
STATE
[1976]
NMLR
84.
3. It
must
contain
the
decision
of
the
court
on
each
point
for
determination:
SECTIONS
245
CPL,
269
(1)
CPCL
and
279
ACJL
4. It
must
show
whether
or
not
the
prosecution
has
been
able
to
prove
the
existence
of
the
essential
ingredients
of
the
offence.
6. A
valid
judgment
must
be
dated
and
signed
or
sealed
by
the
Judge
or
Magistrate
immediately
after
delivery
sections
245
CPL,
269
(1)
CPCL
–
requires
sealing
279
ACJL
AJAYI
v
THE
STATE
[1978]
1
LRN
260,
OBAREKI
v
THE
STATE
[1982]
2
NCR
63,
OSAYANDE
v
THE
STATE
(1985)
3
S.C.
154.
In
magistrate
court,
after
he
delivers
judgment,
tells
counsel
that
they
can
appeal
within
30
days.
Sometimes,
magistrate
signs
after
this
statement
but
this
statement
doesn’t
form
part
of
the
judgment.
Court
held
this
does
not
invalidate
the
judgment.
NOTE(EXAMS)-‐Generally,
every
valid
judgement
must
meet
all
these
requirements
to
be
valid
except
for
an
oral
judgement
of
a
Magistrate
in
the
South
(excluding
Lagos
State)
which
need
not
contain
the
point
for
determination.
See
sections
245
CPL,
279
ACJL.
Any
Judgment
PRONOUNCED
IN
open
court
before
reduction
into
writing-‐
STATE
V.LOPEZ(CPCL);
R
V.
FADINA
There
is
no
equivalent
provision
on
this
in
the
CPL
but
it
is
applicable
in
the
CPL
states.
3.
There
is
need
to
correct
a
clerical
error-‐S.
275
CPCL(MAY
APPLY
TO
CPL/ACJL).
Apart
from
the
three
circumstances
mentioned
above,
a
judge
cannot
amend
any
other
error
however
trivial.
To
do
so
will
be
unlawful
because
once
the
judge
has
delivered
his
judgment
he
becomes
functus
officio
-‐
UNAKALAMBA
v.
STATE;
BAKARE
V.
STATE.
NB
==#
Where
a
Judge
passes
a
death
sentence
without
directing
in
what
manner
the
sentence
will
be
carried
out,
it
is
a
mere
irregularity
which
may
be
amended
by
the
Judge
after
delivery
of
judgment-‐GANO
v.
STATE
CONVICTION
• The
judgment
of
the
court
must
end
with
a
finding
of
guilty
or
not
guilty.
MEANING
OF
CONVICTION-
A
conviction
is
an
act
of
a
court
of
competent
jurisdiction
adjudging
a
person
to
be
guilty
of
a
punishable
offence
whether
the
penalty
is
imprisonment,
fine
or
binding
even
to
be
of
good
behaviour-‐YALEKHUE
v.
OMOREGBE.
NOTE
THE
FOLLOWING
• The
judgment
of
a
court
MUST
convict
the
accused
before
he
is
sentenced
-‐
R
v.
EKPO
• Once
it
is
clear
from
the
evidence
and
findings
of
the
trial
court
that
the
accused
person
committed
the
offence
charged,
failure
to
record
the
conviction
or
sentence
is
a
mere
irregularity
which
may
be
remedied
by
the
appellant
court.
ONYEJEKWE
v.
THE
STATE
• However,
it
is
important
that
the
conviction
must
be
expressly
stated
on
the
records
or
discernible
from
the
records.
• Failure
to
enter
a
conviction
before
sentence
may
invalidate
the
judgment-‐
ADAMU
&
ORS
v.
THE
STATE
• Where
an
accused
person
is
charged
and
tried
for
more
than
one
count
of
offences,
or
several
accused
persons
are
charged
for
one
or
more
counts
of
offences,
the
court
must
deliver
a
verdict
in
respect
OF
EACH
COUNT
OR
EACH
ACCUSED
PERSON
as
the
case
may
be-‐
OYEDIRAN
&
ORS
v.
THE
REPUBLIC
•
A
trial
court
must
pronounce
its
sentences
SEPARATELY
on
ALL
the
counts
of
offence
in
a
case
-‐
BANKOLE
v.
STATE.
CONVICTION
FOR
AN
OFFENCE
NOT
EXPRESSLY
CHARGED
WITH
SECTIONS
169-179
of
the
CPL,
S.
217-219
of
the
CPCL,
S.
160-171
of
the
ACJL
Generally,
no
person
can
be
pronounced
guilty
for
an
offence
with
which
he
was
not
expressly
charged.-S.
36(6)(a)
CFRN.
EXCEPTIONS/CIRCUMSTANCES
1. Where
an
accused
person
charged
with
a
grave
offence
is
convicted
for
a
lesser
offence
where
the
evidence
before
the
Court
could
not
sustain
the
offence
he
is
charged
with
and
there
is
sufficient
and
overwhelming
evidence
in
support
of
the
lesser
charge.
The
particulars
constituting
the
lesser
offence
are
carved
out/subsumed
in
the
particulars
of
the
offence
charged:
s179
CPL,
218
CPCL,
166
ACJL
UGURU
v.
STATE;
NWACHUKWU
v.
STATE:
charged
for
armed
robbery
but
Ct
found
offence
of
robbery
MAJA
v.
STATE
(TORHAMBA
V.
IGP-Red
pencil
rule)
NOTE-
the
lesser
offence
must
be
of
a
kindred
offence
with
the
one
the
accused
is
charged
with.
An
accused
can
be
convicted
of
a
lesser
offence:
Babalola
v
State
(1989)
2. When
an
accused
person
is
convicted
for
conspiracy
to
commit
the
offence
although
he
was
not
found
guilty
of
the
substantive
offence-‐
BALOGUN
v
AG
OGUN
STATE
3. Every
attempt
to
commit
an
offence
is
punishable
by
trial
court
even
where
the
defendant
is
not
expressly
charge
attempting
to
commit
the
said
offence.-‐
Ss.
169
CPL,
S.
219
CPCL;
HONG
v.
THE
STATE.
4.
A
person
charged
for
any
of
the
offences
of
stealing,
obtaining
property
by
false
pretences,
obtaining
money
by
fraud
or
receiving
stolen
property
may
be
convicted
for
any
of
them
in
the
alternative.
SS.
173
&
174
CPL,
S.
217
CPCL
5. A
person
charged
with
rape
or
defilement
of
a
girl
UNDER
13
YEARS
may
be
convicted
for
indecent
assault.
S.
175
CPL
illustration
“C”
to
S.
217
CPCL
which
uses
the
term
“gross
indecency”
6. A
person
charged
with
armed
robbery
may
be
convicted
of
robbery.
NWACHUKWU
VS
STATE
(supra).
SS.
218(1)
CPCL
179
(2)
CPL
• After
conviction
or
a
plea
of
guilty,
but
before
sentencing,
the
Judge/magistrate/registrar
will
ask
the
accused
or
his
Counsel
to
show
reasons
why
sentence
should
not
be
passed
on
him
according
to
Law.
• This
will
require
the
accused
to
respond
by
pleading
convincingly
to
the
Court
why
his
sentence
should
be
reduced
or
that
the
Court
should
temper
justice
with
mercy
adducing
good
reasons.
That
procedure
is
known
as
the
plea
of
allocutus.
S.
247
of
the
CPL,
S.
197
of
the
CPCL
and
S.
281
of
the
ACJL.
The
EFFECT
of
the
plea
is
to
mitigate
the
punishment
to
be
passed
on
the
accused
but
cannot
result
in
cancellation
of
all
punishment-‐OGBEIDE
V.COP
NOTE-‐For
CAPITAL
OFFENCES
and
offences
for
which
the
Law
has
provided
MINIMUM
/MANDATORY
penalties,
allocutus
has
NO
EFFECT
because
they
attract
mandatory
sentences
of
death
and
firing
squad
for
capital
offence.
EFFECT
OF
FAILURE
OF
COURT
TO
ALLOW
PLEA
OF
ALLOCUTUS.
However,
failure
of
the
Court
to
observe
this
procedure
will
not
vitiate
the
trial
and
conviction.
S.
247
of
the
CPL,
S.
197
of
the
CPCL,
S.
281of
the
ACJL.
POSTPONEMENT
OF
SENTENCE
-This
is
where
the
Court
releases
the
accused
on
bail
pending
when
sentence
will
be
passed
on
him:
S.
250
of
the
CPL,
S.
198
of
the
CPCL
and
S.
284
of
the
ACJL.
CONSIDERATION
OF
PENDING
CHARGES
AGAINST
AN
ACCUSED
IN
SENTENCING
S.
249
of
the
CPL,
S.
258
of
the
CPCL
S.
279
of
the
ACJL.
CIRCUMSTANCES-
The
Court
can
ONLY
consider
other
Charges
against
the
accused
not
before
it
in
sentencing
where
• The
accused
admits
or
pleads
guilty
to
the
other
Charge(s)
before
another
Court
and
he
wishes
that
it
be
considered,
and
• The
Prosecution
of
the
other
Charges
in
the
OTHER
COURT
must
consent.
NB-The
Attorney-Generals
of
States
under
the
CPCL
must
also
consent.
AIM-
The
aim
of
this
procedure
is
to
save
cost
and
time
of
prosecution.
EFFECT-The
effect
of
considering
other
Charges
against
the
accused
before
another
Court
in
his
sentence
before
the
Court
is
that
the
accused
will
not
be
liable
to
be
charged
again
on
those
offences
considered
UNLESS
his
conviction
is
set
aside
on
appeal.
NOTE-
The
sentence
to
be
imposed
on
the
offence
convicted
upon
and
the
one
considered
must
not
be
greater
than
the
maximum
prescribed
for
the
offence
convicted
for.-S.
182-
194
of
the
CPL.
SENTENCING
MEANING
-A
sentence
is
the
pronouncement
by
the
court
upon
the
accused
person
after
his
conviction
in
a
criminal
prosecution
imposing
the
punishment
to
be
inflicted.
The
penalty
is
usually
in
the
form
of
a
fine,
imprisonment,
caning,
binding
over,
execution.
MODALITIES
OF
SENTENCING
• The
sentence
of
the
court
must
be
pronounced
in
open
court.
SECTIONS
198
CPCL,
248
CPL
and
must
be
pronounced
in
the
presence
of
the
accused
person
–
ASAKITIPI
v.
THE
STATE
• The
sentence
of
the
court
must
be
the
sentence
prescribed
for
the
offence
by
the
law
which
created
it-‐S.
377
CPL
• The
court
is
not
under
a
duty
to
inform
the
convicted
person
of
the
reason
for
the
sentence
of
the
court
-‐
EKPO
v.
THE
STATE.
• The
court
must
pronounce
a
sentence
for
every
count
of
offence
for
which
the
accused
is
convicted-‐YESUFU
v.
I.G.P
• The
sentence
of
the
court
takes
effect
immediately.
It
may
in
some
circumstances
be
postponed
but
it
is
never
suspended.
• Under
the
CPCL,
a
court
after
conviction
may
retire
to
consider
the
sentence,
but
the
court
is
enjoined
to
pronounce
the
sentence
in
open
court
at
a
later
date.
S.
198
CPCL
•
Under
the
CPL
a
convicted
person
may
be
discharged
upon
self-‐recognisance
with
or
without
sureties
on
the
condition
that
he
shall
appear
and
receive
the
sentence
of
the
court
at
a
future
date
-
S.
250
CPL
NB
=Suspended
sentence
is
unknown
to
our
criminal
procedure-‐STATE
v.
AUDU
CONSECUTIVE
AND
CONCURRENT
SENTENCES
If
more
than
one
sentence
of
imprisonment
is
imposed
on
the
different
Counts
of
the
Charge,
it
is
deemed
to
run
consecutively
if
not
specifically
mentioned
to
be
concurrent.
The
Court
can
also
order
that
the
term
of
imprisonment
run
concurrently
or
consecutively.
S.
380
of
the
CPL,
S.
24
of
the
CPCL
and
EMONE
VS.
COP.
EXCEPTION-However,
under
Ss.
24
&
312
CPCL,
multiple
terms
of
imprisonment
shall
be
deemed
to
run
consecutively
UNLESS
the
court
orders
that
they
run
concurrently
(NORTH
ONLY)
S380
CPL:
where
magistrate
court
orders
consecutive
sentences,
term
of
imprisonment
must
not
exceed
4
years
or
the
limit
of
the
jurisdiction
of
the
magistrate
court,
whichever
is
greater.
NOTE-
A
CONCURRENT
sentence
is
sentence
imposed
which
is
to
be
served
at
the
same
time
as
another
sentence
imposed
in
the
proceedings.
The
sentences
start
running
at
the
same
time
(i.e.
serving
2
sentences
at
the
same
time)
A
CONSECUTIVE
sentence
is
sentence
imposed
which
is
to
be
served
one
after
the
other.
Each
sentence
begins
at
the
expiration
of
another.
Serving
a
sentence
at
the
end
of
another.
Mandatory
sentence:
statute
prescribes
certain
sentences
for
an
offence.
CT
has
no
discretion
Minimum
sentence:
CT
has
discretion
but
cannot
go
below
this
sentence
Maximum
sentence:
cannot
sentence
above
the
number
of
years
DISCRETION
OF
THE
COURT
IN
IMPOSITION
OF
SENTENCES
The
prescribed
sentence
for
any
offence
is
the
maximum
sentence,
which
the
law
creating
the
offence
prescribes.
However,
in
imposing
sentences,
a
court
has
discretion
to
impose
a
sentence
less
than
the
prescribed
punishment
or
a
fine
in
lieu
of
a
sentence
of
imprisonment.-‐
SLAP
v.
A
G
FED.
CIRCUMSTANCES
WHERE
THE
COURT
LACKS
DISCRETION
IN
IMPOSING
SENTENCES
The
discretion
of
the
court
to
impose
a
sentence
which
is
less
than
or
different
from
the
prescribed
penalty
is
limited
in
three
instances.
a.
MANDATORY
SENTENCES
The
court
cannot
impose
less
than
a
penalty
prescribed
for
an
offence.
All
capital
offences
are
punishable
with
the
death
penalty.
Death
penalty
is
the
mandatory
penalty
for
murder,
culpable
homicide
punishable
with
death,
treason,
armed
robbery.
The
death
penalty
is
not
permissive
but
mandatory
for
capital
offences.
Therefore
a
court
does
not
have
the
discretion
to
impose
any
other
penalty
upon
conviction
for
a
capital
offence.
Similarly,
the
mandatory
penalty
for
attempted
armed
robbery
is
life
imprisonment
by
virtue
of
S.
2(1)
Robbery
and
Firearms
(Special
Provisions)
Act,
Balogun
v.
AG
Ogun
State
NB-‐
The
penalty
for
armed
robbery
under
S.402
CC
is
21
years
imprisonment
(for
other
arms)-firearms-DEATH
PENALTY-S.402(2).
PENAL
CODE
is
life
imprisonment-s.298
Penal
Code.
b.
MINIMUM
PENALITIES
Where
the
law,
which
creates
an
offence,
prescribes
a
minimum
penalty
for
offenders
upon
conviction,
the
Court
can
impose
a
higher
penalty
but
cannot
impose
a
penalty
less
than
the
minimum.
Also,
where
the
minimum
penalty
is
a
term
of
imprisonment,
the
court
cannot
impose
a
fine
in
lieu
of
imprisonment.
Ss.
23
(5)
CPCL,
382
(5)
CPL,
DADA
V.
BOARD
OF
CUSTOMS
&EXCISE
c.
PENALITIES
WITHOUT
OPTION
OF
A
FINE
Where
the
law
which
creates
an
offence
prescribes
a
penalty
without
option
of
a
fine,
upon
conviction,
the
court
does
not
have
the
discretion
to
impose
a
fine
in
lieu
of
the
penalty.-‐
DADA
V.
BOARD
OF
CUSTOMS
EXCISE
However,
where
a
law
prescribes
a
penalty
and
is
silent
on
the
option
of
fine,
the
court
has
the
discretion
to
impose
a
fine
in
lieu
of
the
penalty.-‐
Ss.
23(1)
CPCL,
382
(1)
CPL
1. DEATH SENTENCE
• The
death
penalty
is
the
prescribed
punishment
for
persons
convicted
of
capital
offences
and
it
is
mandatory
to
impose
same
–
S.
367(1)
&
(2)
and
368
of
the
CPL,
S.
273
of
the
CPCL,
S.
305
of
the
ACJL,
KALU
VS.
STATE
OKORO
VS.
STATE.
• Offences
such
as
murder
/culpable
homicide
punishable
with
death,
treason
and
armed
robbery
are
punishable
with
the
death
sentence.-‐
• Terrorism
Act
has
not
prescribed
the
death
penalty
for
terrorism
offences
• Edo
and
Akwa
Ibom
States
have
prescribed
the
death
penalty
for
kidnapping
MODE
OF
EXECUTION
OF
DEATH
SENTENCE
The
death
sentence
shall
be
by
hanging-‐
SECTIONS
367
CPL,
273
CPCL
However,
in
respect
of
armed
robbery
convicts,
the
death
sentence
shall
be
by
firing
squad:
S.
1
(2)
(a)
(b)
Robbery
&
Firearms
(Special
Provisions)
Act
1985
DRESSING
OF
A
JUDGE
WHEN
DELIVERING
A
DEATH
SENTENCE
When
pronouncing
a
sentence
of
death,
the
Judge
is
robe
in
red
gown
and
black
cap
(barret).
FORM
OF
PRONOUNCEMENT
OF
DEATH
SENTENCE-S.367(2)
CPL
It
is
passed
using
the
following
words:
The
sentence
of
this
Court
on
you
is
that
you
be
hanged
on
the
neck
until
you
be
dead
and
may
the
Lord
have
mercy
on
your
soul.
S.273
CPCL-“when
a
person
is
sentenced
to
death,
the
sentence
shall
direct
that
he
be
hanged
by
the
neck
till
he
is
dead”
EFFECT
OF
NON
COMPLIANCE-
Failure
of
the
Court
to
comply
with
the
statutory
wordings/
procedure
for
its
imposition
is
not
fatal-‐OLOWOFOYEKU
VS.
STATE(CPL).
Such
omission
is
treated
as
an
error
which
a
Court
of
Appeal
will
direct
the
trial
court
to
rectify
-‐
GANO
v.
THE
STATE(CPCL)
EXCEPTIONS
WHERE
DEATH
SENTENCE
CANNOT
BE
PASSED:
i)
PREGNANT
WOMEN
convicted
of
capital
offences
are
to
be
sentenced
to
life
imprisonment
in
lieu
of
death.
S.
368(2)
of
the
CPL,
S.
270
of
the
CPCL,
S.
306(2)
of
the
ACJL
and
S.
211
of
the
Child’s
Rights
Act
DETERMINATION
OF
PREGNANCY
• The
determination
of
pregnancy
may
be
ordered
by
the
court
on
its
own
volition
or
upon
the
allegation
of
the
pregnant
woman
or
the
Prosecutor.
-SS.
376
(1)
CPL,
271
(1)
&
300
CPCL
• The
finding
that
a
woman
is
not
pregnant
by
the
trial
court
is
subject
to
appeal;
the
appellate
court
may
set
aside
the
finding,
quash
the
sentence
of
death
and
substitute
a
sentence
of
life
imprisonment.
• The
rationale
behind
this
rule
is
for
the
protection
of
the
unborn
child.
NOTE-‐Section
221(2)
of
the
Child
Right
Act,
CAP50
LFN
2004
suggest
a
non
–
institutional
sentence
as
an
alternative
measure
to
imprisonment
instead
of
life
imprisonment
and
that
where
institutional
sentence
is
necessary
such
women
should
be
committed
and
held
or
detained
at
a
special
mother
centre
3. The
Minister
or
Commissioner
(AG),
as
the
case
may
be,
shall
consider
the
report
made
by
the
trial
court
in
respect
of
the
convicted
person.
4. The
report
is
referred
to
the
committee
responsible
for
exercising
prerogative
of
mercy
5. The
Attorney-‐General
may
recommend
to
the
Governor
or
President
after
considering
the
report
of
the
Advisory
Council
that
–
• The sentence should be commuted to imprisonment for life; or
• The sentence should be commuted to any specific period; or
There
are
Advisory
Councils/committees
on
the
Prerogative
of
Mercy
in
each
of
the
States
of
the
federation.
They
are
part
of
the
Ministry
of
justice.
In
respect
of
federal
offences,
the
National
Council
of
States
is
the
body
responsible
for
exercising
the
Prerogative
of
Mercy.
ROLE-
The
powers
of
the
President
are
to
be
exercised
by
him
after
consultation
with
the
Council
of
State,
whilst
the
Governor’s
power
shall
be
exercised
by
him
after
consultation
with
the
Advisory
Council
of
the
State
on
Prerogative
of
Mercy.
2. IMPRISONMENT
• This
may
be
with
hard
labour
or
not.
See
S.
377
of
the
CPL,
S.
316
of
the
ACJL.
• Where
the
court
imposes
imprisonment
but
is
silent
on
whether
it
is
with
or
without
hard
labour,
it
is
deemed
to
be
with
hard
labour.
• The
trial
court
may
still
sentence
a
convicted
person
who
is
already
serving
a
term
of
imprisonment
to
another
term
of
imprisonment.
•
The
court
may
order
that
the
sentence
shall
commence
at
the
expiration
of
the
previous
term.
JURISDICTION
OF
THE
HIGH
COURTS
TO
IMPOSE
TERMS
OF
IMPRISONMENT
The
High
Courts
have
unlimited
jurisdiction
to
punish.
They
are
only
limited
by
the
term
of
imprisonment
prescribed
by
the
law,
which
creates
an
offence.
JURISDICTION
OF
THE
MAGISTRATE
COURT
TO
IMPOSE
TERMS
OF
IMPRISONMENT
Magistrates’
courts
are
limited
to
the
punishment
they
can
impose
by
the
magistrates
courts
Law
of
the
various
states.
NB
=-‐A
Magistrate’s
Court
in
the
South
cannot
exceed
the
limit
of
its
jurisdiction
to
impose
punishment
when
it
passes
consecutive
sentences.
*
In
the
NORTH,
a
Magistrate’s
court
can
exceed
its
jurisdiction
to
impose
punishment
but
not
by
more
than
twice
the
limit
when
it
passes
consecutive
sentences.
WHEN
IS
A
SENTENCE
OF
IMPRISONMENT
EFFECTIVE
A
sentence
of
imprisonment
takes
effect
from
and
includes
the
whole
day
of
the
date
on
which
it
was
pronounced.-‐S.
281
CPL
Usually,
maximum
punishment
is
prescribed
for
terms
of
imprisonment
but
the
Judge
need
not
impose
it
all
as
it
can
be
substituted
with
fine.
Once
there
is
power
to
impose
a
term
of
imprisonment,
the
Judge
can
impose
fine
in
lieu
of
imprisonment.
–
S.
382(1)
of
the
CPL,
S.
320
of
the
ACJL
and
DADA
VS.
CUSTOMS
&
EXCISE
BOARD.
3. FINES
This
is
passed
only
on
Muslim
offenders
in
the
North
for
offences
like
adultery,
defamation,
injurious
falsehood
and
drinking
of
alcohol.
The
aim
of
the
punishment
is
to
inflict
disgrace/shame
and
not
to
cause
physical
pain
or
injury.
–
S.
307
of
the
CPCL,
S.
68(2)
of
the
Penal
Code
and
the
Criminal
Procedure
(Haddi
Lashing)
Order
in
Council
1960.
4. Canning
is
enforceable
only
against
persons
who
are
liable
to
imprisonment
for
a
period
of
6
months
or
more.
On
the
other
hand,
there
is
no
such
provision
for
Haddi
Lashing.
5. Haddi
Lashing
–unlike
canning
–
is
meant
to
inflict
disgrace,
not
physical
pain
nor
injury.
MISCELLANOUS
PUNISHMENTS
1. Deportation
(only
Aliens
can
be
deported)
see
2. Compensation
and
restitution
of
stolen
property
to
the
individual
whose
property
was
stolen.
See
11. Community
service
–
only
in
ACJL
e.g.
sweeping
a
particular
public
building
for
a
period
of
time
NB:
Restorative
justice
of
Reconciliation,
Restitution,
Reintegration
and
Restoration
is
encouraged
rather
than
retributive
justice
as
contained
mainly
in
Nigeria’s
Laws.
• Judge
did
not
properly
evaluate
evidence
in
reaching
the
conclusion.
He
was
more
interested
in
superficial
matters
(number
of
witnesses
and
not
their
credibility)
• Absence
of
the
victim
for
6
months,
not
sufficient
to
prove
death
• Sentence
of
accused
by
firing
squad
instead
of
hanging
• Prosecution
failed
to
prove
murder
but
judge
still
decided
to
convict
2nd
accused
person
because
he
did
not
testify
after
no
case
submission
was
overruled
• Doctrine
of
res
ipsa
loquitor
was
not
properly
applied
• Court
did
not
state
proper
notes
on
evidence
or
write
down
judgment
• Ailment
of
the
judge
affected
his
ability
to
appreciate
evidence
previously
given
• The
judge
was
biased
by
introducing
religious
matters
into
the
trial
• Judge
based
on
his
judgment
on
offences
not
proved
(conspiracy)
i.e.
cannot
convict
on
conspiracy
when
the
particular
offence
was
not
proved.
• Possible
to
be
convicted
on
one
credible
witness
or
discharged
due
to
one
witness
(so
the
number
of
witnesses
is
not
relevant
but
the
weight
of
the
evidence
• Suggesting
guilt
of
accused
based
on
silence
was
not
proper
(181
EA
2011).
Cannot
base
judgment
on
the
mere
silence
of
the
accused
• First
accused
was
convicted
of
conspiracy
but
not
sentenced
• Second
accused
was
sentenced
but
not
convicted
• Whole
trial
is
a
nullity
because
case
is
in
the
North
and
accused
was
charged
with
murder
(an
offence
not
known
to
law).
He
should
have
been
trialled
for
culpable
homicide
not
punishable
with
death.
• Not
sure
about
the
sanity
of
the
judge
• Judge
did
not
write,
sign
or
date
judgment
• Did
not
state
the
points
for
determination
• Nor
did
he
state
his
opinion
on
each
point
for
determination
• Stating
incorrect
points
of
law
e.g.
6
months
is
not
reasonable
time
to
presume
someone
dead
(EA
2011
is
7
years);
also
issue
with
his
understanding
of
res
ipsa
loquitor
• Even
the
addition
of
caning
as
punishment
is
absurd
and
bizarre
WEEK
18-
APPEALS
MEANING-Appeal
is
the
process
of
seeking
to
reverse
the
decision
of
the
trial/lower
Court
on
the
basis
of
facts,
Law
or
mixed
Law
and
facts.
TYPES
OF
APPEALS
1. APPEALS
AGAINST
FINAL
DECISION
an
appeal
against
the
final
decision
of
a
court
is
an
appeal
against
the
judgment
of
the
court.
2. INTERLOCUTORY
APPEALS--
An
appeal
against
an
interim
order
of
a
court
is
an
interlocutory
appeal.-‐
The
court
must
rule
on
such
applications
or
objections.
CONDITION
PRECEDENT
FOR
BRINGING
APPEALS
IN
CRIMINAL
TRIALS
• Before
a
person
can
file
an
appeal,
he
must
have
a
Right
of
Appeal.
• An
appeal
may
be
as
of
right
or
only
with
the
leave
of
the
court
Ss.
241
&
242
CFRN
• Right
of
appeal
must
expressly
be
stated
in
a
statute:
THE
STATE
V.
ADIO
• A
superior
court
has
an
automatic
inherent
jurisdiction
to
preside
over
appeals
from
a
Lower
court.
• It
can
only
hear
an
appeal
if
a
statute
confers
such
jurisdiction
on
it.
NUNKU
V.
IGP
CONDITIONS
PRECEDENT
FOR
FILING
OF
APPEALS
IN
CRIMINAL
TRIALS
1. Filing
of
Notice
of
appeal,
2. Payment
of
required
fees,
3. Provision
of
recognisance
and
security
for
diligent
prosecution
of
the
appeal
PARTIES
TO
AN
APPEAL
The
right
of
appeal
is
exercisable
only
by
either
the
Prosecutor
or
the
accused.
NB(EXAMS)-‐
A
PARTY
INTERESTED
or
THE
VICTIM
does
not
have
the
right
to
appeal
in
Criminal
cases.
See S. 243(a) of the CFRN 1999 (as amended) and AKINBIYI V. ADELABU.
An
Appellant
in
custody
can
give
his
Notice
of
Appeal
to
the
officer
in
charge
of
the
Prison
and
the
day
he
did
so
is
deemed
the
date
of
filing.
-‐
EWELIKWU
VS.
STATE.
TIME
LIMIT
WITHIN
WHICH
AN
APPEAL
CAN
BE
FILED
The
time
within
which
to
appeal
is
30
days
of
the
delivery
of
the
judgment
for
Final
judgments
14
days
for
interlocutory
decisions
OR
15
days
on
a
sentence
of
canning.
–
S.
281of
the
CPCL,
S.
68
of
the
Magistrate
Court
Law
of
Lagos
2009.
CONTENTS
OF
A
NOTICE
OF
APPEAL
In
Lagos
State
the
information
required
in
the
Form
1
are
as
follows:
S.
279(2)
C.P.C.
In
Lagos,
a
Prosecutor
may
appeal
against
a
Sentence
that
is
below
the
minimum
term
prescribed
by
Law
or
failure
to
make
an
order
prescribed
by
Law.
THE
ACCUSED
The
accused
may
appeal
on
the
following
grounds:
i. That
the
lower
Court
had
no
jurisdiction
in
the
case;
vi. That
the
decision
is
unreasonable
and
cannot
be
supported
having
regard
to
the
evidence;
or
vii. That
the
decision
is
erroneous
on
points
of
Law;
or
viii. That
other
specific
illegalities
that
substantially
affect
the
merit
of
the
case
have
been
committed
in
the
course
of
the
proceedings;
or
ix. That
the
sentence
passed
on
conviction
is
excessive.
See
S.282(2)
C.P.C.;
Or.2,
(Part
1)
R.9
HCL
(Appeal)
Rules.
i. That
the
Magistrate
was
personally
interested
in
the
case;
or
ii. That
the
Magistrate
acted
corruptly
or
maliciously
in
the
case.
Or.2
Pt.1,
R.
9(1)
HCL
(Appeal)
Rules.
–
S.
279(2)
&
282(2)
of
the
CPCL
and
S.
69
of
the
Magistrate
Court
Law
of
Lagos
2009.
Note:
an
appellant
may
apply
for
leave
to
file
additional
grounds
or
to
amend
defective
grounds
of
appeal.
Esoh
V.
Police;
Okonkwo
V.
I.G.P.
OMNIBUS
GROUND
OF
APPEAL
The
omnibus
ground
of
appeal
couched
as”
The
decision
of
the
trial
judge
is
unreasonable
and
cannot
be
supported
having
regard
to
the
evidence”
is
not
a
valid
ground
of
appeal
in
criminal
trials.-‐ENITAN
Vs.
STATE.
CAN
A
CONVICT
WHO
PLEADED
GUILTY
HAVE
A
RIGHT
OF
APPEAL?
Yes.
A
convict
who
pleaded
guilty
to
the
offence
can
still
appeal
against
his
conviction
especially
where
the
procedure
of
the
Prosecution
calling
expert
evidence
in
prove
of
the
offence
as
required
by
Law
was
not
complied
with.
-‐ESSIEN
VS.
KING
and
STEVENSON
VS.
POLICE
ADMISSIBILITY
OF
ADDITIONAL
EVIDENCE
ON
APPEAL
Generally,
new
evidence
is
not
admissible
on
appeal
because
of
the
following
reasons:
1. To
put
an
end
to
litigation
2. A
successful
party
should
not
be
deprived
of
the
benefits
unless
on
material
grounds;
3. A
party
who
obtained
judgment
should
not
face
a
new
case
because
of
the
appellant’s
failure
to
diligently
prosecute
the
case-‐ESANGBEDO
VS.
STATE
The
CONDITIONS/EXCEPTIONS
for
the
admission
of
additional
evidence
on
appeal
are
as
follows:
1. If
it
is
in
the
interest
of
justice
2. The
evidence
was
not
available
at
the
trial
or
could
not
have
been
adduced
at
trial.
ARIRAN
VS.
ADEPOJU
3.
The
evidence
sought
to
be
adduced
on
appeal
must
be
apparently
credible
though
not
incontrovertible-‐ARIOLA
&
ORS
v.
C.O.P.
4.Exceptional
circumstances
arise
which
will
not
lead
to
the
rehearing
of
the
case.
• The
Appellate
Court
may
admit
the
evidence
OR
•
Refer
it
to
the
trial
Court/Lower
Court
to
take
the
evidence
and
adjudicate
on
it
in
the
light
of
the
evidence
and
report
its
findings
on
such
evidence
to
the
High
Court.-‐
S.
45
&
55
of
the
High
Court
Law
of
Lagos
State.
POSSIBLE
ORDERS
THE
STATE
HIGH
COURT
WILL
MAKE
UPON
HEARING
AN
APPEAL.
A-Appeal
Against
Sentence
only
Where
appeal
is
against
only
the
sentence
imposed
by
the
Magistrates’
Court,
the
High
Court
in
its
appellate
jurisdiction
may
i. Affirm
the
Sentence
ii. Substitute
any
other
sentence
which
may
be
more
or
less
severe
than
the
former
sentence
or
different
in
nature.
Section
39
(b)
High
Court
Law,
Lagos,
2004
B-Appeal
against
conviction
or
Conviction
and
sentence,
the
Court
may
i. Affirm
the
conviction
or
conviction
and
sentence
ii. Quash
the
conviction
or
conviction
and
sentence
in
which
case
the
court
may
either
acquit
or
discharge
the
convicted
person
or
order
a
retrial
by
the
same
Court
or
another
Court
of
competent
jurisdiction
iii. Maintain
the
sentence
but
alter
the
findings
upon
which
the
trial
Court
reached
a
conviction
iv. Maintain
the
finding
but
reduce
or
increase
the
sentence,
in
which
case
the
High
Court
CANNOT;
increase
/reduce
the
sentence
beyond
the
maximum
penalty
prescribed
by
the
law,
which
created
the
offence
which
the
trial
Magistrate
has
jurisdiction
to
impose.
Nworie
v
COP,
Nwobu
&
Anor
v
COP
C-Appeal
against
an
Order
of
Acquittal
or
Discharge,
the
High
Court
may
i. Maintain
the
acquittal
or
discharge
ii. Remit
the
case
and
the
judgment
of
the
High
Court
on
the
order
of
the
acquittal
or
discharge
to
the
Magistrates’
Court
for
determination,
whether
by
rehearing
or
not,
if
the
High
Court
is
of
the
opinion
that
the
order
of
the
acquittal
or
discharge
made
by
the
Magistrates
Court
should
not
have
been
made,
iii. Give
such
other
directions
as
the
Court
thinks
necessary.
Section
39
(c)
High
Court
Law,
Lagos
Appeal
that
a
Magistrate’s
Court
failed
to
impose
a
minimum
sentence
or
make
an
Order
prescribed
by
a
Written
Law,
the
High
Court
may;
i. Suspend
the
sentence
or
order
made
by
the
Magistrate
Court
ii. Substitute,
impose
or
make
a
sentence
or
order
prescribed
by
the
Written
Law.
Section
39
(d)
High
Court
Law,
Lagos
Appeal
from
any
other
Order
made
by
Magistrate’s
Court,
the
High
Court
may;
i. Maintain
the
order
made
by
the
Magistrate’s
Court
ii. Change
the
order
made
by
the
Magistrate’s
Court
iii. Reverse
the
order
made
by
the
Magistrate’s
Court.
Section
39
(e)
High
Court
Law,
Lagos.
B.APPEALS
FROM
THE
HIGH
COURTS
/FEDERAL
HIGH
COURTS
TO
THE
COURT
OF
APPEAL.
The
procedure
to
be
followed
will
be
determined
depending
on
whether
the
appeal
is
as
of
right
or
needs
the
leave
of
Court
or
it
is
a
double
appeal
or
an
interlocutory
appeal.
S.240
CFRN
• The
Notice
or
application
for
leave
to
appeal
must
be
filed
in
the
High
Court
Registry
within
90
days
of
the
decision
appealed
against.
2. Where
an
appeal
is
with
leave,
the
appellant
is
allowed
a
further
period
of
14
days
from
the
date
of
the
determination
of
his
application
for
leave
to
bring
another
application
for
leave
to
the
Court
of
Appeal(Criminal
Form
2).-‐Kema
V.
The
State.
The
grant
of
the
application
is
deemed
to
be
the
notice
of
appeal.
Order
17
rule
6
court
of
Appeal
rules
2011
3. The
Appellant
is
to
satisfy
other
conditions
for
the
prosecution
of
the
appeal
and
pay
filling
fees
EXCEPT
for
an
appellant
convicted
of
a
capital
offence
or
appellants
represented
by
the
Legal
Aid
Council.
-‐O.
17
R.
8
of
the
Court
of
Appeal
Rules
2011
4. The
notice
of
appeal
must
be
signed
by
the
appellant
or
his
counsel
and
shall
be
given
to
the
Registrar
of
the
Fed.
Or
State
High
Court
which
pronounced
the
decision.
5. The
Registrar
of
the
High
Court
shall
compile
the
record
of
appeal
and
forward
same
to
the
registrar
of
the
Court
of
Appeal.
6. Parties
to
the
proceedings
are
also
served
with
the
Record
of
Appeal.
7. Upon
receipt
of
the
Record,
parties
are
required
to
file
their
respective
Briefs
of
argument
beginning
with
the
Appellant.
8. After
the
exchange
of
Briefs
or
on
the
expiration
of
the
period
allowed
for
the
filing
of
Briefs,
hearing
notice
will
be
served
on
the
parties
by
the
registrar
of
the
Court
of
Appeal.
9. On
the
hearing
date,
parties
may
present
oral
arguments
to
emphasise
and
clarify
the
issues
raised
in
their
Briefs.
11. Forty
minutes
is
allowed
on
each
side
for
the
presentation
of
oral
argument
unless
it
is
otherwise
directed.
Or.17
R.9(3).
CAR.
TIME
FOR
FILING
NOTICE
OF
APPEAL
COMPUTATION
OF
TIME
The
time
within
which
to
file
the
Notice
of
Appeal
starts
counting
when
the
Appellant
has
notice
of
the
decision(judgment)
convicting
him.
-‐OHUKA
VS.
STATE
TIME
FOR
FILING
BRIEF
OF
ARGUMENT
a.
Appellant’s
brief
of
argument
must
be
filed
within
45
days
of
the
receipt
of
the
record
of
appeal
from
the
FHC/SHC.Or.17
R.2
CAR.
b.
Respondent’s
Brief
must
be
filed
within
30
days
of
service
of
the
Appellant’s
Brief
on
him.
Or.17
R.
4(1)
CAR.
c.
Appellant’s
Reply,
if
any,
must
be
filed
within
14
days
of
the
receipt
of
the
Respondent’s
Brief
of
argument.
Or.17
R.5
CAR.
NB-‐The
Appellant’s
Reply
shall
deal
with
all
new
points
arising
from
the
Respondent’s
Brief
of
argument.
Or.
17
R.
5
CAR.
The
number
of
copies
to
be
filed
by
a
party
is
20
copies
each.
NOTE-
A
party
shall
not
be
allowed
to
argue
or
raise
an
issue
that
is
not
contained
in
his
Brief
of
Argument
during
the
hearing
of
the
appeal.
CONSEQUENCES
OF
FAILURE
TO
FILE
BRIEF
OF
ARGUMENT
WITHIN
TIME
• Where
an
Appellant
fails
to
file
his
brief
within
time,
his
appeal
may
be
STRUCK
OUT.
• Where
a
respondent
fails
to
file
his
respondent’s
brief
of
argument
having
been
duly
served
with
the
appellant’s
brief
of
argument,
he
will
not
be
heard
in
oral
argument.
Or.
17
R.
10
CAR.
• where
an
Appellant
fails
to
file
a
reply
brief
within
time
he
shall
be
deemed
to
have
conceded
all
the
new
points
or
issues
arising
from
the
respondent’s
brief
of
argument.
Or.
17
R.
10
CAR.
d) Decisions
in
any
Criminal
proceeding
in
which
any
person
has
been
sentenced
to
death
by
the
Court
of
Appeal
or
which
the
Court
of
Appeal
has
affirmed
a
sentence
of
death
imposed
by
any
other
Court;
e) Such
other
cases
as
may
be
prescribed
by
any
Act
of
the
National
Assembly.-S.233
(2)
CFRN
’99.
In
other
cases,
appeal
will
lie
with
leave
of
the
Court
of
Appeal.-
S.
233
(3)
CFRN
’99.
The
procedure
of
appeal
from
the
decision
of
the
Court
of
Appeal
to
the
Supreme
Court
is
substantially
the
same
as
the
procedure
of
appeal
to
the
Court
of
Appeal
except
the
differences
in
the
periods
for
the
filing
of
the
Notice
of
Appeal
and
the
Briefs
of
Argument.
-‐Or.2
of
the
Supreme
Court
Rules
(S.R.C.).
a.
Appellant’s
brief
ofargument
must
be
filed
within
ten
weeks
of
the
receipt
of
the
record
of
appeal
from
the
Court
below.-‐Or.
6
R.
5
(1)
(a)
SCR.
b.
Respondent’s
brief
of
argument
must
be
filed
within
eight
weeks
of
service
of
the
appellant’s
brief
on
him.
Or.6
R.
5(2)
SCR.
c.
Appellant’s
reply,
if
any,
must
be
filed
within
four
weeks
of
the
receipt
of
the
respondent’s
brief
-
Or.6
R.5(3)
S.C.R.
POSSIBLE
ORDERS
TO
BE
MADE
BY
COURT
OF
APPEAL
AND
SUPREME
COURT
1.
Appeal
against
sentence
only
a.
Allow
the
appeal
i.e.
quash
the
sentence
and
substitute
another
sentence.
b.
Dismiss
the
appeal
i.e.
Affirm
the
sentence
of
lower
court.
2.
Appeal
against
conviction
a.
Allow
the
appeal
i.e.
quash
the
conviction
and
acquit
the
Appellant
or
order
a
retrial.
b.
Dismiss
the
appeal
i.e.
affirm
judgment
of
Lower
(High)
Court.
c.
Set
aside
the
sentence
of
High
Court
and
substitute
another
sentence
d.
Substitute
another
conviction.
e.
Affirm
the
judgment
in
part
3.
Appeal
against
order
of
Acquittal,
Discharge
or
Dismissal;
Allow
the
appeal
i.e.
return
a
verdict
of
conviction
either
sentence
the
accused
according
to
limit
of
trial
court
or
order
a
retrial.
An
appeal
is
impliedly
withdrawn
if
the
Appellant
fails
to
file
his
grounds
of
appeal
or
fulfil
other
conditions
of
appeal
after
filing
his
Notice.
EXPRESS
ABANDONMENT
OF
APPEAL
• Where
it
is
express,
the
appellant
must
submit
a
Notice
of
his
intention
to
abandon
in
CRIMINAL
FORM
11
OR
FORM
11A
to
the
Registrar
of
the
Court
of
which
decision
is
being
appealed
against
(the
lower
CT).
Or.16
R.
18
(1)
CAR.
• The
Notice
must
be
submitted
NOT
LATER
THAN
2
DAYS
from
the
date
set
down
for
hearing
of
the
appeal.
• Upon
submission
of
notice
of
abandonment
the
Registrar
of
the
High
Court
will
notify
the
Registrar
of
the
Appeal
Court
on
receipt
of
the
Notice.
Or.2
(Pt.1)
R.13(3)(4)
&
(5)
HCL
(Appeal)
Rules.
• The
Notice
may
be
given
to
the
Registrar
of
the
Court
of
Appeal
by
filling
Criminal
Form
11
or
11A
or
to
Registrar
of
the
Supreme
Court
as
the
case
may
be
who
shall
notify
the
Registrar
of
the
Court
below,
the
respondent
and
the
prison
authority
in
Criminal
Form
12.
Or.16
R.
18(1)
&
(2)
CAR.;
S.291
C.P.C.;
R.
V.
Rowe
[1955]39
CAR.
57.
Bello
v.
AG
Oyo
NOTE-‐However,
appeal
will
not
abate
on
the
death
of
the
appellant
where
the
ground
of
appeal
is
founded
on
sentence
of
fine.
This
is
because
the
fine
may
be
levied
on
the
deceased/appellant’s
estate
notwithstanding
his
death.
R.
V.
Rowe
.
WHEN
CAN
A
RE-TRIAL
MAY
BE
ORDERED
An
Appeal
Court
may
order
a
re-trial
where
all
the
following
conditions
are
present:
i.
That
there
has
been
an
error
in
Law
or
an
irregularity
in
procedure
such
that
although
the
trial
was
not
rendered
a
nullity,
it
cannot
be
said
that
a
miscarriage
of
justice
has
been
occasioned;
ii.
That
leaving
the
error
or
irregularity,
the
evidence
taken
as
whole
discloses
a
substantial
case
against
the
appellant;
iii.
That
there
are
no
special
circumstances
as
would
render
it
oppressive
to
put
the
appellant
on
trial
a
second
time;
iv.
That
the
offence(s)
of
which
the
appellant
was
convicted
or
the
consequences
to
the
appellant
or
to
any
other
person
of
the
conviction
or
acquittal
of
the
appellant,
are
not
merely
trivial;
and
v.
That
to
refuse
an
order
for
re-‐trial
would
occasion
a
greater
miscarriage
of
justice
NOTE
That
the
above
conditions
are
cumulative.
YESUFU
ABODUNDE
&
ORS.
V.
R.
.
OKAFOR
VS.
STATE
and
AIGBE
VS.
STATE
NOTE
FURTHER-‐An
order
of
retrial
will
not
be
ordered
if
it
would
enable
the
Prosecution
to
adduce
evidence
as
the
missing
link
to
succeed
in
obtaining
a
conviction.
–
ANKWA
VS
STATE,
KAJUBO
VS
STATE
ADEOYE
VS.
STATE.
DIFFERENCE
BETWEEN
RETRIAL
AND
TRIAL
DENOVO
RE
TRIAL
–
Most
often
goes
to
a
different
court
or
a
different
judge
to
hear
all
over
again
a
case
which
has
been
tried
on
and
determined
by
a
judgement.
TRIAL
DE
NOVO:
This
is
a
fresh
trial
of
a
case
that
was
previously
part
heard
by
another
judge
but
was
not
determined
by
a
judgment.
NOTICE
OF
FINAL
DETERMINATION
OF
AN
APPEAL
The
decision
or
outcome
of
every
appeal
must
be
communicated
to
the
following
persons:
i.
The
Appellant;
if
he
is
in
custody
ii.
The
Respondent;
iii.
The
Prison
Authority;
and
iv.
The
Registrar
of
the
court
whose
decisions
was
appealed
against
BAIL
PENDING
APPEAL
A
convicted
person
who
has
appealed
against
his
conviction
may
apply
to
be
released
on
bail
pending
the
determination
of
his
appeal.
The
grant
of
bail
is
now
at
the
Court’s
discretion
and
not
as
of
right.
S.
54
(2)
(a)
Magistrates’
Courts
Law
of
Lagos
state;
S.
283
(4)
&
340
(2)
C.P.C
in
respect
of
appeals
from
Area
to
Upper
Area
Court
S.
28&29
(1)
Ct
of
Appeal
Act.;
S.31(1)
S.C.A.;
Or.9
R.4(6)
S.C.R.;
Kuti
V.
Police
CONDITIONS
FOR
THE
GRANT
OF
BAIL
PENDING
APPEAL
.
The
Appellant
is
required
to
show
EXCEPTIONAL
OR
SPECIAL
circumstances
(Ajayi
v.
state)
why
bail
should
be
granted.
At
this
stage,
the
appellant
is
a
convict,
and
has
lost
the
presumption
of
innocence
guaranteed
by
the
Constitution.-‐
O.17
R.18
of
the
Court
of
Appeal
Rules
2011
and
Forms
11
and
11A
of
the
Rules.
CONDITIONS
1. There
must
be
a
valid
Notice
of
Appeal
2. The
grounds
of
appeal
are
likely
to
succeed
against
the
conviction
on
point
of
Law
FAWEHIMI
V.
STATE
.
3. That
the
duration
of
appeal
may
out
last
the
duration
of
the
sentence
R.
V.
TUNWASE
;
4. The
real
case
is
so
complex
that
constant
consultation
between
the
convict
and
his
counsel
is
required
for
the
preparation
of
the
appeal.
-‐R.
V.
STARKIE
5. The
appellant’s
health
is
seriously
in
jeopardy
and
can
not
be
taken
care
of
at
the
Prison
facility.
FAWEHINMI
VS.
STATE
(1990):
appellant
had
to
prove
from
the
nature
of
his
illness,
he
needed
constant
medical
attention
and
the
type
of
treatment
required
is
not
readily
movable;
CHUKWUNYERE
V.
THE
C.O.P.
6. The
conduct
of
the
appellant
during
trial
in
relation
to
the
bail
earlier
granted(not
jumping
bail).
MUNIR
VS.
FRN.
The
Learned
trial
Judge
erred
in
Law
when
he
convicted
the
accused
on
no
admissible
evidence
proving
his
guilt
beyond
reasonable
doubt.
PARTICULARS
OF
ERROR:
1.
The
evidence
of
PW1
is
hearsay
and
it
did
not
link
the
death
of
the
victim
to
the
1st
Accused/Appellant.
GROUND
TWO
The
decision
of
the
trial
judge
is
unreasonable
and
cannot
be
supported
having
regard
to
the
evidence.
………………..
APPELLANT
Only
where
person
is
an
illiterate,
then
needs
an
illiterate
jurat
DATED
THIS
10TH
DAY
OF
AUGUST
2015
Ade
Adamu
Appellant’s
Counsel
Address
Phone
number
Email
address
FOR
SERVICE
ON:
The
Respondent,
The
Attorney-‐General
of
the
Federation,
Federal
Ministry
of
Justice,
Abuja.
RAMPAM
ALECHENU………APPELLANT
AND
THE
FEDERAL
REPUBLIC
OF
NIGERIA…….RESPONDENT
APPELLANT’S
BRIEF
OF
ARGUMENT
INTRODUCTION/PRELIMINARY
STATEMENT
This
is
an
appeal
against
the
decision
of
the
High
Court
of
the
Federal
CPLital
Territory
delivered
on
11th
day
of
July
2015
by
Hon
Justice
Maza
Maza.
The
Notice
of
Appeal
was
filed
on…..
The
Appellant
was
arraigned
on
a
charge
of
murder
preferred
by
the
Attorney
General
of
the
Federation
and
subsequently
convicted
of
conspiracy
to
commit
murder
ISSUES
FOR
DETERMINATION
1)
Whether
the
learned
trial
judge
erred
in
law
by
convicting
the
accused
person
of
a
charge
unsupported
by
evidence
in
the
case.
STATEMENT
OF
FACTS
ISSUE
ONE
It
is
trite
law
that
for
a
charge
of
conspiracy
to
stand,
there
must
be
an
agreement
between
two
or
more
persons.
Therefore,
it
is
not
possible
to
convict
only
one
person
of
conspiracy
since
there
must
be
an
agreement
with
someone
else
to
conspire.
See
the
case
of
…..
CONCLUSION/SUMMARY
This
Honourable
Court
is
urged
to
quash
the
decision
of
the
trial
court
and
acquit
the
accused
of
the
offence
of
conspiracy
of
culpable
homicide
punishable
by
death
LIST
OF
AUTHORITIES
JUDICIAL
STATUTORY