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CRIMINAL LITIGATION (NLS)

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This PDF contains succinct yet detailed Key-Points. Directly tailored to suit the Nigerian Law School Curriculum and particularly focused with the Bar Finals exam in mind – which prefers apt language and understanding the accompanying drafts are strictly apt with an exam scenario in mind. Composition Date (2017).

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PREVIEW OF CRIMINAL LITIGATION

Special focus on ACJA and ACJL being most notorious and current.

INTRODUCTION TO CRIMINAL LITIGATION.

:: INTRODUCTION / OVERVIEW / SCOPE OF CRIMINAL LITIGATION. Criminal Litigation encompasses from the moment a complaint is made, to arrest, arraignment, obtaining of evidence, constitutional safeguards, trial, judgment, appeal, prerogative of mercy.

:: COMPARISON OF THE RULES AND LAWS APPLICABLE IN DIFFERENT PARTS OF NIGERIA. PREFERABLY TABULAR.

:: SOURCES OF CRIMINAL LITIGATION.

Principal Enactments: CPA and CPCA (which have been domesticated into) CPL of Various Southern States, CPCL of various Northern States, ACJ (Repeal and Re-enactment) Law of Lagos 2011, ACJA 2015 (for FCT and Federal Crimes Enactments).

Secondary Enactments: include the CFRN 1999, Court Laws and Rules (Magistrate, HC, FHC, NIC, CofA, Scourt, etc.), practice directions, other statutes like; CYPL, PC, CC, AFD, etc.

– Case Law: maintained by precedence and hierarchy of courts.

English HC Rules: (only in the south) should be resorted to where there is a lacuna-S 363 CPA, Board of Customs and Excise V Hassan[1], Simidele V C.O.P[2], Ikomi V State[3]. HOWEVER; In North (Prohibited by S 35 HCLN), Abuja (S492 ACJA) and Lagos (262 ACJL) the court should resort to rule that would meet the justice of the case.

:: SITTINGS OF CRIMINAL COURTS: Court sits (9am till it rises (usually 4)) on all days but Sundays and public holidays which are non-juridical days. However it can sit on non-juridical days with consent of both prosecution and defenceOsosami V The COP. For magistrate, in Section 40 MCLL, Court is opened throughout the year except on Saturdays, Sundays and Public holidays but at least one court in every Magisterial District shall be open on Saturdays to hear matters relating to remand, bail and other non-custodial disposition

:: SETTINGS OF THE COURT:

  • The Bench: elevated podium in front of the court room where judge sits.
  • The Bar: area between the registrar’s desk and the gallery where (well robbed) counsel sit.
  • Registrar’s Desk: directly beneath and backing the judge (bench).
  • Dock: enclosure where the accused/defendant stands during trial. He may go to the witness box to testify if he wants to be cross-examined.
  • Witness box: place between the bench and the bar where a person is placed to testify. Usually at the right hand side.
  • Gallery: where litigants and other spectators/attendees sit.
Court How Judges are Addressed
Customary and Area Your Honor.
Magistrates Your Worship. Lagos (Honour).
High Court My Lord
Court of Appeal My Lords
Supreme Court My Lords

 

 

 

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WEEK 4.

JURISDICTION AND VENUE OF CRIMINAL TRIALS.

:: COURTS OF GENERAL CRIMINAL JURISDICTIONS (JURISDICTION AND VENUE).

IN THE SOUTH:

: CUSTOMARY COURT: Constituted by CC Laws of the State to try offences against bye-laws and others expressly conferred upon it. Grade A, B and C Oyo State, Grade A and B Lagos.

: MAGISTRATES COURT: See MCLLagos. Trial of offences which can be summarily tried[4]. Summary trial of offences contained in certain laws stated in Section 29 (6) and 3rd Schedule to the Law. Punishment should not exceed maximum imposed by the Law, it cannot try capital offences or sentence a person to more than 14 years or death. Edun V IGP AG may (subject to recommendation of the Lagos State Judicial Service Commission and approval of Lagos State HOA) increase jurisdiction[5]. Magistrate should encourage reconciliation.

: HIGH COURT: established in Section 270 CFRN. Jurisdiction contained in S 272(1) CFRN 1999. Has jurisdiction to try all indictable and non-indictable offences brought by information or complaint respectively. It may hear contravention of Federal Offences where there is a State Law providing for it and conferring jurisdiction-S 286 CFRN. Hear appeals from magistrates’ courts. 272 CFRN.

IN THE NORTH:

: AREA COURTS: Established by warrant under the hand of CJ and constituted by Area Court Edicts. Not strict technicality rather substantial justice[6]Jos NA V Allah NA Gani. Has jurisdiction over person of African descent or one who consents to be tried by the court or is subjected to it by governor. Upper AC, ACG I, ACGII, ACGIII, no jurisdiction in homicide cases. Appeals go to High Court.

Although Section 390 of CPC disentitles Legal practitioners from appearing in Area Court, the combined application of Section 36 CFRN and Uzodima V The COP dispels such restriction.

: MAGISTRATE’S COURTS: established by S 6 CPC to try offences contained in 6th Colum Appendix A of Penal Code and other offences for which jurisdiction is expressly conferred on it or where such offence does not exceed its punishment jurisdiction. 4 Grades viz; CM, MG I, MG II and MG III with 10, 5, 2 years and 3 months respectively… 1k, 6h,4h n 2h respectively. Board of Customs and Excise V Yesufu. Governor on recommendation of CJ may increase. The jurisdiction and grades vary.

: HIGH COURT: also offences in 6th Colum Appendix A. Note 12 CPC, 272 CFRN. Appeals from all magistrates’ Courts.

: COURT OF APPEAL: Est 237 appeals from all HC, FHC, HCFCT, Court Martial and Tribunals established by an Act of the National Assembly-Section 240 CFRN.

: SUPREME COURT: EST 230. Appeals from CofA Section 233 CFRN.

:: COURTS OF SPECIAL JURISDICTION (JURISDICTION AND VENUE).

: JUVENILE COURTS: constituted by the CYPL of the State to try an offender who is a “child” (12) or “young person” (12-17) and was so as at the time he allegedly committed the offence. Age can be determined by evidence like birth certificate, certificate signed by government medical official, etc.-S 29 CYPL, R V Oladimeji.

It cannot try cases of homicide, capital offence or cases where the juvenile is charged jointly with an adultSection 6 and 8 CYPLLagos. FURTHERMORE; JVCourts are not open to the public, They should NOT; – publish I.D of offender; – use the words “conviction” or “sentence”; give death sentence; imprison a child; imprison a young person where he can be suitably dealt with in another way.

The offender is committed to an approved institution and kept at pleasure of governor.

: FEDERAL HIGH COURT: Established under Section 249 CFRN 1999. Offences in respect of areas it has jurisdiction as enumerated in Section 251(2) CFRN. Like treason, treasonable felonies, taxation, CAMA, Customs, excise, foreign exchange, IP, aviation, arms, ammunition, explosives, drugs, poisons, etc. The exclusivity accorded by Section 251(1) over Civil Jurisdiction appears to be lacking for criminal jurisdiction as seen in Section 251(2) CFRN. Bronik Motors Ltd V Wema Bank Plc. Although FHC is one throughout Nigeria, it is better to bring the case in the place where offence was committed or cause of action arose-Ibori V FRN, Nwankwo V The State

: NATIONAL INDUSTRIAL COURT: Section 254(A) Establishes it. From 254, jurisdiction over criminal jurisdiction arising from trade, labour or industrial relations. Fair Hearing, Evidence Act and Criminal Procedure Laws apply. Appeal as of right to Court of Appeal.

: COURTS MARTIAL: established by the AFD/AFA. CM exercises jurisdiction over persons subject to service law (i.e. Nigerian Army, Navy and Air Force) for offences created under the decree-103 AFA. NAF V Obiosa.

Section 129 AFA 2004 provides two types: General (President, four members, one waiting member, a liaison officer and a Judge Advocate) and Special (President, two members, one waiting member, a liaison Officer and Judge Advocate with three years’ post-call experience[7]. Both types of court-martials can be convened by the President, Chief of Defence Staff, Service Chiefs, General Officer, Commander of a battalion, or an officer acting in place of these persons. (Additionally Brigadier, Colonel or Lieutenant for Special Court martial). The convening officer must be above the rank of the officer being tried-Okoro V Nigerian Army.

A court-martial must have 7 members to impose the death sentence and at least 4 to impose over a year’s imprisonment. Offences[8] civil and criminal a court martial may try are listed in Sections 45—114 and include mutiny, insubordination, and sodomy. The civil jurisdiction of a court martial is subject to that of regular courts, but the regular court, while imposing its judgment, should consider the judgment already meted out by the court martial. An officer tried in a regular court on a civil or criminal matter cannot be retried in a court martial- Magaji V Nigerian Army.

The decision of a court martial is by simple majority of members. If votes are split on findings, the accused shall be acquitted; if votes are split on the sentence, the president of the court-martial shall cast a second vote. All members must consent for death penalty else lesser punishment meted. A death sentence is executed with the consent of the president and commander-in-chief.

Section 169 (2) says except in mutiny and desertion, a serviceman is excluded from trial 3 months after his retirement.

Appeals from Court Martial should go to Court of Appeal- Section 240 of the 1999 Constitution (within 40 days of decision). If death penalty, appeal must be within 10 days. Only death penalty is as of right. Others shall be with leave.

 

Fair hearing is mandatory-Nigerian Army V Mohammed.

: OTHER TRIBUNALS: like Robbery and Firearms Tribunals, Treason and Treasonable Felonies Tribunal Special Appeal Tribunal, etc. have been disbanded and transferred to the FHC. See Tribunals (Certain Consequential Amendments etc.) Decree, 1999.

:: INTERNATIONAL CRIMINAL COURT (JURISDICTION AND VENUE).

Is an independent tribunal established to try persons suspected to have committed crime against humanity, genocide, aggression and war crimes in Member-States (about 122 member states including Nigeria). Locted at the Hague Netherlands but can sit in any convenient place. Relies on state police and international police INTERPOL to enforce its decisions. It is not bound by immunity, limitation period. It cannot impose death penalty, try retroactively or try children.

 

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WEEK 5

SEARCHES, ARRESTS AND CONSTITUTIONAL RIGHTS.

An accused’s presence may be secured through:”

  1. Summons.
  2. Arrest with Warrant.
  3. Arrest without Warrant. Section 113 ACJA.

:: ISSUE OF CRIMINAL SUMMONS: 79-94 ACJL, Section 79 ACJL The magistrate or judge (justice of peace for the North) usually issues a summons against a suspect (directing him to appear in court within 48 hours of service of the summons) after receiving a complaint[9] against him (usually with regards to minor offences and where he is not likely to evade the court)-Ikonne V The COP. See Section 80 CPL. The summons should (in writing signed[10] by the judge, magistrate or justice of peace in duplicate) state the substance of the complaint, name of the accused, date of issue.

:: EXECUTION OF CRIMINAL SUMMONS: The summons should be served (by police, bailiff or sheriff) personally on the person summoned (on any day… between 8-6 in Lagos) who should acknowledge receipt by signing at the back of the duplicate[11] (this is proof of service). Alternatively, it could be served in the presence of a witness. Substituted service (like leaving in conspicuous part of premises, service on adult male member, etc.) can be effected with leave of the court. An affidavit showing why and how substituted service was effected should be sworn-52 CPC. In the south, it appears that the server would simply write the details of

[1] On change of plea before sentence. Applied the English which requires leave of court.

[2] Procedure to apply for bail to High Court when application has been refused by Magistrate court. Applied English which requires summons. See also Abacha V The State.

[3] On application to High Court for leave to file an information. Using the indictment Procedure Rules of England 1971 to say that consent required. In the North Application for Leave to Prefer a Charge in the High Court Rules 1970 was enacted

[4] See Section 2 of the various Magistrate’s Courts Laws.

[5] In other states, it is by governor on recommendation of CJ

[6] Area court Judge Sits alone or with one or more members or with assessors approved by CJ.

[7] Waiting Members and Judge Advocates do not vote.

[8] The offences are divided into military (like mutiny, insubordinate behaviour, aiding enemy, desertion, rape, sodomy, drunkenness) and civil (being what civilian would contravene both civil and criminal like manslaughter, murder, house breaking, extortion) offences.

[9] Get definition of complaint from 1 and 2 cpc and cpl.

[10] A rubber stamp may suffice-Goodman V Evans.

[11] Refusal to sign may ground detention or committal to prison for 14 days

 

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