Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.

com 07035406532

DISCLAIMER:

This note is a compilation by Chris Ozo Agbata on the NLS Yola Campus
2021/2022, using NLS handbook, class slides and notes. It does not represent
NLS official opinion; it is not for sale and it is for exam preps only.

Any observations, reservations and comments should be directed to Chris Ozo

Agbata using the contact info provided at the header. THANK YOU

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CRIMINAL LITIGATION

CONTENTS

1.0 MEANING OF CRIMINAL LITIGATION ................................................................... 3

2.0 SUMMONS, ARREST, SEARCHES AND CONSTITUTIONAL RIGHTS ............. 12
3.0 PRE-TRIAL INVESTIGATION AND POLICE INTERVIEWS ............................... 44
4.0 JURISDICTION AND VENUE OF CRIMINAL TRIALS ......................................... 62
5.0 INSTITUTION OF CRIMINAL PROCEEDINGS ...................................................... 82
6.0 CHARGES ........................................................................................................................ 92
7.0 BAIL PENDING TRIAL............................................................................................... 116
8.0 CONSTITUTIONAL SAFEGUARDS TO ENSURE FAIR TRIAL OF AN
ACCUSED PERSON ................................................................................................................ 141
9.0 TRIAL 1: ATTENDANCE OF PARTIES AND ARRAIGNMENT ......................... 157
10.0 TRIAL 2 (TRIAL PREPARATION AND EVIDENCE) ........................................... 171
11.0 TRIAL 3 (EXAMINATION OF WITNESSES) .......................................................... 191
12.0 TRIAL 4 (PRESENTATION OF THE CASE FOR THE DEFENCE) .................... 197
13.0 JUDGMENT AND SENTENCING.............................................................................. 207
14.0 APPEALS 1 .................................................................................................................... 233
15.0 APPEALS 2 .................................................................................................................... 243

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1.0 MEANING OF CRIMINAL LITIGATION

The word criminal derives from the word “crime” and it is synonymous with “offence”. It simply
refers to any act or omission which the law of the land forbids and against which the law prescribes
sanctions or punishment. See S2 CC, S28 PC, S371 ACJL Lagos, S1 ACJL Kano, and S494
ACJA for the definition of an offence.

ACJA “offence” means an offence against an Act of the National Assembly;

“felony” means an offence on conviction for which a person can, without proof of his having been
previously convicted of an offence, be sentenced to death or to imprisonment for three years or
more, or which is declared by law to be a felony;

“Indictable offence” means an offence which on conviction may be punished by:

(a) a term of imprisonment exceeding two years; or

(b) of a fine exceeding N40,000.00 not being an offence declared by the law creating it to be
punishable on summary conviction;

For an act or omission to constitute a crime, such act or omission must be specifically regarded as
a crime in a written law. See S36(12) CFRN, Aoko v Fagbemi.

On the other hand, “Litigation” generally refers to legal proceedings in a court; a judicial contest
to determine and enforce legal rights or to ascribe legal obligations.

Thus, criminal litigation is a legal proceeding in court that deals with criminal matters. It involves
processes used by courts in entertaining criminal proceedings or cases before them. The processes
include complaints, summons, arrest, bail, conclusion of investigations, charge, arraignment, trial,
defence, judgment, sentence and appeals which are all considered as part of the scope of criminal
litigation.

COMPARISON BETWEEN CIVIL AND CRIMINAL PROCEEDINGS

DIFFERENCE

1. Commencement: criminal proceedings are commenced by the state usually through the
Attorney General (SS 174 & 211 CFRN), police (S66 Police Act), or any other authorised
person or authority, while civil proceedings is commenced by an individual or a
corporation in his/its own name for enforcement of his/its own rights. Also, in civil, action
may be commenced by originating process or as the claimant wishes depending on the
matter but in criminal it is either by charge or information as it is prescribed by law.
2. Parties: in criminal proceedings, the state is referred to as the Prosecution and the opposing
party as the Accused or Defendant, while in civil proceedings, the person commencing the
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action is referred to as the Plaintiff/Claimant/Petitioner and the opposing party is the

Defendant/Respondent.
3. Outcome of Proceedings: at the end of a criminal case, the court will discharge and/or
acquit the accused person or convict him/her and punished, while at the end of a civil case,
the court will either find for the Plaintiff or dismiss his/her claim.
4. Burden and Standard of Proof: in criminal cases, the burden of proof is on the
prosecution and the standard of proof is beyond reasonable doubt (S139 EA), while in civil
cases, the burden of proof is on he who asserts (S135 EA) and the standard of proof is on
the balance of probability or on preponderance of evidence. When criminal offence is
mixed in civil action, it has to be proved beyond reasonable doubt Ajasin v Omoboriowo.
5. Constitutional and Statutory Protections: in criminal trials, the accused person enjoys a
variety of legal protections such as mandatory legal representation in capital offences, right
to speedy trial, etc. while in civil trials, once the two parties are of age, each fights the case
however he/she wants subject to necessary directions from the court.
6. Giving of Evidence: in criminal trials, an accused person may choose not to give evidence
or say anything at his trial and his silence will not mean he is guilty (S36 (11) CFRN; S181
EA), while in civil proceedings, where the defendant is in default of appearance or
pleadings, judgment (default judgment) may be given against him except where the claim
is for declaration.

SIMILARITIES

1. Objective of serving Justice: The objective of both is to serve justice.

2. Court Room: The both trials are heard and determined in the same court room.

3. Presiding Judges: the judge who sits to hear criminal matters is the same judge who sits to
adjudicate over civil matters brought before the same court.

4. Double Jeopardy/Res Judicata: the rule against double jeopardy provided for in S36(9) CFRN
in relation to criminal trial has an equivalent in civil proceedings known as res judicata.

SOURCES

• PRINCIPAL ENACTMENTS

1. Criminal Procedure Laws: this was initially enacted as the Criminal Procedure Act in 1945
and had general application throughout Nigeria until 1963 when the CPC was enacted to govern
criminal proceedings in Northern Region. The application of CPA was then limited to Southern
Region and it has been re-designated as the Criminal Procedure Laws of the various states. The
CPA was used in criminal proceedings before the FHC and NIC until the coming into force of the

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ACJA in 2015. The CPA is also not applicable in Lagos because the ACJL of Lagos 2011 is the
law now applicable. Other southern states that have equally adopted the ACJA and now using
ACJL instead of the CPL are Anambra 2010, Ekiti 2014, Oyo 2015, Ondo 2016, Rivers 2016,
Enugu 2017, Akwa Ibom 2017, Cross River 2017, Delta 2017 and Ogun 2018.

2. Criminal Procedure Code Laws: this was initially enacted by the Northern Region
Government in 1963 as the Criminal Procedure Code Act to govern criminal proceedings in the
Northern Region. The current northern states applying the CPC are Adamawa, Bauchi, Benue,
Borno, Gombe, Jigawa, Kaduna, Kano, Katsina, Kebbi, Kogi, Nasarawa, Niger, Plateau, Sokoto,
Taraba, Yobe and Zamfara. It has been re-designated as the Criminal Procedure Code Laws of
the various states.

3. Administration of Criminal Justice Act 2015: this was enacted in 2015 and currently applies
to criminal proceedings in the FHC, NIC and the HC of the FCT. Other states must first adopt it
before it will have nation-wide applicability. The Criminal Procedure Code Act was the law
applicable in the HC of the FCT until the enactment of the ACJA in 2015. The ACJA by S493 has
also repealed the CPA and CPC. By virtue of S2(1), the Act applies to all causes and matters
arising from offences created by an Act of the National Assembly.

4. Administration of Criminal Justice Law: governs proceedings in HC and Magistrates’ Courts

in Lagos State. It was first enacted in 2007 but later repealed and re-enacted in 2011 as the ACJ
(Repeal and Re-enactment) Law 2011, there is now the ACJL of Lagos State, 2021.

5. Harmonised Sharia Criminal Procedure Code: operative in over 11 Northern states

(Zamfara, Sokoto, Jigawa, Gombe, Bauchi, Kaduna, Kebbi, Borno, Kano, Niger, and Zamfara)
and regulates sharia criminal proceedings in sharia courts (Sharia Court, Higher Sharia Court,
Upper Sharia Court, and Sharia Court of Appeal) within the applicable states.

• SECONDARY ENACTMENTS

1. CFRN: Chapter IV deals with the fundamental rights of an accused person such as right to
personal liberty under S35 and right to fair hearing under S36. Chapter VII deals with superior
courts of record setting out their constitution, jurisdiction, composition, practice and direction, etc.
as well as other lower courts that may be created by the laws of the states. All criminal proceedings
must be done in a manner that do not conflict with constitutional provisions. See S 1.

2. Statutes Creating Courts: The FHC Act, CA Act, SC Act; and the HC Laws make provision
for the establishment of criminal courts and their powers.

3. Rules of Courts: The FHC Rules, State’s HC Rules, CA Rules, and the SC Rules makes
provision for the practice and procedure of the various courts.

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4. Other Secondary Enactments: Penal Code, Criminal Code, Evidence Act 2011; Police Act;
Armed Forces Act; Coroners’ Laws of the States; Children and Young Persons Law (has been
superseded by the Child Rights Act and the Child Rights Laws); Magistrate Court Laws; Area
Court Edicts; Economic and Financial Crime Commission Act; Independent Corrupt Practices
Commission Act; Procurement Act; etc.

5. Judicial interpretation of enactments

English Rules of Court: CPA: S363 provides for the application of English Rules of Practice and
Procedure in criminal trials where local laws do not make provisions. See Board of Customs &
Excise v Hassan. In Simidele v COP, there was no provision under the CPA for applying for bail
at the HC after it has been refused in the MC. The practice and procedure in England where such
application is made; summons was adopted. Some of the areas where there is a lacuna in our local
laws are mode of application for bail at the HC after it was refused at the MC; change of plea;
application for leave to file information; and application for consent of a HC judge in respect of
an indictable offence.

CPC: Where there is lacuna in the CPC, the HCs in the north would look at any other law made
for that purpose or pass another law to take care of it. Where no such law is passed to take care of
the lacuna, the courts are enjoined to do what, in their view, amounts to substantial justice. Thus,
in Achadu v State, when the question arose as to the procedure to apply when applying to the HC
for bail after its refusal by the Magistrate, it was held that the application may be made by either
motions or summons.

S35 of the High Court Law of Northern Nigeria expressly prohibited the application of the
English rules and in case of lacuna; other laws should be looked at.

S262 ACJL (Lagos) provides that where a matter arises in respect of which no adequate provisions
are made in this Law, a Court shall adopt such procedure as will in its view do substantial justice
between the parties concerned.

S492(3) ACJA. When there is a lacuna, recourse should be had to a procedure that will do
substantial justice to the case.

TYPES, SITTINGS, AND SETTINGS OF CRIMINAL COURTS

I. TYPES OF COURTS OF CRIMINAL JURISDICTION

A. COURTS OF GENERAL CRIMINAL JURISDICTION: these 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:

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1. COURTS OF ORIGINAL CRIMINAL JURISDICTION – These are courts you can

commence criminal proceedings at first instance, such as:

i. Customary Court,
ii. Area Court,
iii. Sharia Court,
iv. Magistrate Court, and
v. High Courts.

2. COURTS OF APPELLATE CRIMINAL JURISDICTION: these are courts that only

entertain criminal matters on appeal such as:

i. Court of Appeal, and

ii. Supreme Court.

B. COURTS OF SPECIAL CRIMINAL JURISDICTION: These courts are set up to try

particular types of offences or particular classes of offenders. These courts include:

i. Federal High Court,

ii. National Industrial Court,
iii. Juvenile Court,
iv. Court Martial, and
v. International Criminal Court.

II. SETTING OF A CRIMINAL COURT

1. BENCH: this is the elevated podium in front of the court room where the presiding Judge(s) or
Magistrate sits to dispense justice.

2. BAR: part of the courtroom where lawyers who are in court normally sit. In a superior court, a
lawyer can only sit at the bar if he is robbed and must either have a case to handle or appear to
have one. The front row of the bar is normally left for SANs and AGs where there is no inner bar.
The bar is usually located between the Registrar’s desk and the gallery. The bar may also mean all
the lawyers entitled to practice in Nigeria.

3. REGISTRAR’S DESK: located directly beneath the bench and before it. The Registrar sits
along with the Court Clerk or other Clerical Assistants. The Registrar normally backs the Judge
and only stands up to face the Judge when his attention is required by the Judge.

4. GALLERY: part of the courtroom where litigants, spectators and all other persons who are
visitors to the court usually sit. Lawyers who have no matter in court or who are unrobed sit at the
gallery. It is located directly behind the bar.
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5. DOCK: enclosed part of the courtroom where the accused person is placed during his trial. It is
exclusively reserved for the accused person. There is no rule as to which side of the Judge the dock
is located. Where the accused person testifies from the dock, he will not be cross-examined but
when he testifies from the witness box, he shall be cross-examined. In a joint-trial, all accused
persons enter the dock except where the number outstretches the space in which case they may
spill over and crowd around the dock.

6. WITNESS BOX: part of the courtroom where a witness is placed to testify but usually smaller
than a dock. It is usually located between the bar and the bench so that the lawyer and the Judge
can look at the witness when he is testifying. There is no rule as to which side of the Judge is
located. Only one witness can be in a witness box at a time.

III. SITTINGS OF THE COURT

The court is open for business throughout the year. The court sits at 9:00am – 4:00pm from
Monday – Friday. Saturday, Sunday and public holidays, days within the week of Easter vacation,
and days within annual vacations are non-juridical days. No superior court of record sits on non-
juridical days.

S40(1) Magistrate Court Law (Lagos State) 2009 provides: "The Court shall be opened
throughout the year except on Saturdays, Sundays and public holidays…". S40(2) provides that
notwithstanding S40(1) at least one Court in every magisterial district shall be open and available
for business on any given Saturday for the hearing of matters relating to remand, bail and other
non-custodial disposition. Generally, in practice however, Court usually sits from Monday to
Friday.

Where proceedings are held on Sunday and public holiday - which are dies non juridicus - such
proceedings are invalid, null and void.

However, in Ososami v The COP, the Magistrate pointed it out to the parties that the day to which
the case was adjourned was a public holiday. The appellant urged the Magistrate to take the
evidence of his witness because it might be difficult to procure him another time. The Magistrate
convicted the appellant. He appealed on the basis that the Magistrate sat on a holiday. It was held
that although there was irregularity, since it was done in the interest of the defence and at its
request, no miscarriage of justice could be said to have been occasioned, the irregularity
notwithstanding. Thus, the court may subject to the agreement of the parties, sit on non-juridical
day. Also, in Olu Falae v Obasanjo, it was held that the court can sit on non-juridical days to hear
an election matter.

Also, during annual vacations, there is usually a vacation judge in the HC who hears emergency
cases and other matters that require urgency. In the MCs, at least one Magistrate shall sit in every
Magisterial District for hearing cases of bail, remand and other non-custodial disposition S40(2)
MCL Lagos 2009.
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MODE OF DRESSING AND DECORUM IN THE VARIOUS COURTS

I. CUSTOMARY AND AREA COURTS

• Dressing: Lawyers do not go to these courts robed (wig and gown) but they should be
dressed in black suits and black shoes with tie. The judge may wear traditional apparel.
Some of the judges are not legally trained lawyers.
• Mode of Address: “Your Honour”.

II. MAGISTRATES’ COURTS

• Dressing: officers presiding over these courts are qualified legal practitioners. They do not
sit robed but are usually smartly dressed in sombre suits. The lawyers appearing before
them do not appear in robes. For the male, a black suit and trouser with a shirt and tie to
match a black pair of shoes. For the female, a black suit and skirt with black shoes.
• Mode of Address: “Your Worship”. However, the mode of addressing a Magistrate in
Lagos is now “Your Honour” by virtue of S349 ACJL 2011.
• Quorum: At least one Magistrate shall sit in every Magisterial District for hearing cases
of bail, review and other non-custodial disposition S40(2) MCL Lagos, 2009.

III. HIGH COURT (STATE & FEDERAL)

• Dressing: The High Court Judge is robed. The standard apparel for a male Judge is a black
suit, a white shirt (usually collarless or winged) a bib, a plastic collar (especially where it
is a collarless shirt), stud and black shoes, wig and a gown. A female Judge would adorn a
black skirt-suit, a white collaret, white blouse, a black pair of shoes and a wig and gown.
The Judge can wear a red gown when trying a capital offence and adorn a black cap when
about to pronounce a death sentence.
For a male lawyer, he must wear a black suit, a white collarless or winged shirt, a black
pair of shoes, a white plastic collar, a bib, stud and his wig and gown. For the lady, a black
skirt suit, a white blouse, a white collaret, black pair of shoes and wig and a gown. Her
hairstyle shall not be in a wig form as she is not expected to wear a wig on a wig.
• Privileges and Seniority of Senior Members of the Bar: The wig of the Judge is normally
different from that of the counsel and each Judge has a police orderly. The material for the
lawyers’ gown is cotton or mixed fibre gown, while for the senior members of the bar
(Attorney General, Members of Body of Benchers, and Senior Advocates of Nigeria), they
wear silk gowns. The senior members of the bar sit in the front row of the bar and have the
privilege of mentioning their cases before others. Their seniority is determined in the order
of Attorney Generals (Federation and State), then members of the Body of Benchers,
and followed by Senior Advocates of Nigeria.

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• Mode of Address: “My Lord”.

• Quorum: The HC is constituted by one Judge sitting who is at least 10 years post call.
However, in the North, whenever the HC of a state is hearing an appeal from the Magistrate
or Upper Area Court, two judges form the quorum to sit.

IV. COURT OF APPEAL

• Dressing: The Justices and lawyers appearing before them must sit robed.
• Mode of Address: “My Lords”.
• Quorum: this court is constituted by at least 3 Justices or 5 Justices (in constitutional
interpretation) who are at least 12 years post call. Each justice has a police orderly.

V. SUPREME COURT

• Dressing: The Justices and lawyers appearing before them must sit robed.
• Mode of Address: “My Lords”.
• Quorum: this court is constituted by at least 5 Justices or 7 Justices (in constitutional
interpretation or exercise of its original jurisdiction) who are at least 15 years post call.
Each Justice has a police orderly.

ETHICAL DUTIES OF COUNSEL AND COURT IN CRIMINAL TRIALS

I. Prosecuting Counsel

i. Being present in court at all times

ii. Avoiding forum shopping
iii. Acting fairly, honestly and candidly R32 RPC
iv. Calling material witnesses
v. Observing the interest of justice
vi. Conducting case with due diligence R16 RPC
vii. Making available to the accused person proof of evidence
viii. Avoiding frivolous institution of criminal proceedings

II. Defence Counsel

i. Being present in court

ii. Undertaking defence of an accused person
iii. Keeping client’s confidences. See R v Eguabor
iv. Not withdrawing from the brief. See Abele v Tiv NA
v. Not seeking unnecessary adjournments. See Worlu v Umelo

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vi. Employing the right mode of address for the judge or other presiding officer of a court
Global Transport v Free Ent.
vii. Not casting aspersion on the trial judge.

III. Trial Judge

i. Granting to the parties right of audience before the court

ii. Being neutral
iii. Not descending to the arena of conflict
iv. Maintaining high standard of conduct
v. Active participation in the proceedings but not necessarily interfering
vi. Ensuring that litigants don’t waste judicial time.

IV. Court Registrar

i. Accept all processes for filing

ii. Make records of proceedings available to the parties upon demand
iii. Ensures that hearing notices and other court processes are served
iv. Interpret or arrange for interpreter to interpret court proceedings to an accused if necessary
v. Ensures that the court file is brought to the attention of the judge before the date for hearing
especially where a new process is filed by a party
vi. In a capital offence where the accused is sentenced to death, 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. Generally, he liaises between the court and the AG in issues of plea of
clemency in capital offences.

ON ALLOCCUTUS, the SC in Francis v. Federal Republic of Nigeria [2021] 5 NWLR (Pt.

1769) 398 at 412, per Eko, JSC: “Allocutus”, as defined in Earl Jowitt: The Dictionary of English
Law, is what the convict has to say why the court should not proceed to sentence him. That is,
what the convict shows “Why the sentence should not be passed.” The convict, not the defence
Counsel, pleads his allocutus. In other words, it is for the convict himself to show cause why the
prescribed sentence for the offence he was convicted of be not passed or imposed on him.

In summary, it the convict him/herself that delivers the allocutus and not his/her counsel.

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2.0 SUMMONS, ARREST, SEARCHES AND CONSTITUTIONAL

RIGHTS
INTRODUCTION:

There are three different ways of securing the appearance of an accused before the Court which
will try him S113 ACJA, S79 ACJL Lagos, S130 ACJL Kano. These are

i. By summons
ii. By Arrest on Warrant and
iii. By Arrest without Warrant

SUMMONS

A summons is a document issued by a court of competent jurisdiction directing the person named
therein to appear in court at a stipulated date and time to answer to a charge or allegation or
complaint against him. This is usually preceded by a complaint laid before a Magistrate or a judge.

What is a complaint?

According to S494(1) ACJA “complaint” means the allegation that any named person has
committed an offence made before a court or police officer for the purpose of moving him to issue
process under this Act.

According to ACJA S89 on Form of complaint.

(1) It is not necessary that a complaint shall be in writing, unless it is required to be so by the law
on which it is founded, or by some other law, and where a complaint is not made in writing, the
court or registrar shall reduce it into writing.

(2) Subject to the provisions of section 54 of this Act, a complaint may, unless some law otherwise
requires, be made without oath.

(3) A complaint may be made by the complainant in person, or by a legal practitioner representing
him, or by any person authorized in writing in that behalf.

Who may issue Summons?

S113 ACJA: A court may issue a summons or warrant as provided in this Act to compel the
appearance before it of a suspect accused of having committed an offence in any place, whether
within or outside Nigeria, triable in a State or in the Federal Capital Territory, Abuja. S130 ACJL
Kano has similar provision, but S79 ACJL Lagos provides that a magistrate may issue but
apparently, they are the same.

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Issue and Service

S116 ACJA and S132 ACJL Kano: states that a summons may be issued or served on any day,
including a Sunday or public holiday.

But S81 ACJL Lagos provides that

(a) A summons may be issued or served on any day from Monday to Saturday between the hours
of 8 a.m. and 6 p.m.

(b) A summons served on a Sunday or public holiday shall not be invalid but shall take effect from
the next working day.

Content of Summons

S117 ACJA, S82 ACJL Lagos, S133 ACJL Kano: …the summons shall be directed to the
suspect, stating concisely the substance of the complaint and requiring him to appear at a certain
time and place not less than 48 hours after the service of the summons before the court to answer
to the complaint and to be further dealt with according to law.

According to Agaba: CNDDS

1. Concise statement of the offence

2. Name of the offender
3. Direction to the offender to appear in court within 48 hours of service
4. Date of issue
5. Signature of the issuing authority. In Goodman v Evans Ltd, it was held that the use of a
rubber-stamped signature is a sufficient compliance with requirement for signature.

Form of Summons

S121 ACJA, S85 ACJL Lagos, S135 ACJL Kano: A summons issued by a court under this Act
shall be in writing, made in duplicate, signed by the presiding officer of the court or by such other
officer as the Chief Judge may specify, from time to time.

i. Be in writing
ii. Made in duplicate
iii. Signed by presiding officer of the court or another officer appointed by the CJ for the
purpose

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Service of summons

122 ACJA, S86 ACJL Lagos, S136 ACJL Kano: A summons shall be served by a police officer
or by an officer of the court issuing it or other public officer, or through a courier service company
duly registered with the Chief Judge as a process service agent of the court under this Act.

POOC

i. a police officer
ii. an officer of the court issuing it or
iii. other public officer, or
iv. through a courier service company duly registered with the CJ as a process service agent.
NB: Kano added that it may be served by email.

Normal Methods of Effecting Service

S123 ACJA, S87 ACJL Lagos, S137 ACJL Kano: The person effecting service of a summons
shall effect it by delivering it on:

a) an individual, to him personally; or

b) a firm or corporation;
(i) to one of the partners,
(ii) to a director,
(iii) to the secretary,
(iv) to the chief agent within the jurisdiction,
(v) by leaving it at the principal place of business in Nigeria of the firm or
corporation, or
(vi) to anyone having, at the time of service, control of the business of the firm;
c) a Local Government Council, then in accordance with the LG Act or Law;
d) the Nigeria Police Force, or the office of the IGP, to the COP of the FCT, Abuja or of the
State;
e) any FG Ministry, Department or Agency, to the AGF or to the Legal Department of such
MDA;
f) any state Government MDA, to the AG of the State or to the Legal Department of such
MDA; or
g) any arm of the armed forces, to the Director of Legal Services of the Service or Command
concerned.

i. Individual – personal
ii. Firm or corporation – partner, director, secretary, chief agent within jurisdiction,
principal place of biz, someone in control of the biz
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iii. LG – LG Act or Law

iv. NPF or IGP – COP
v. MDAs – AGF (AGS) or legal dept of such MDA
vi. Armed Forces – Director of legal services

Service where person summoned cannot be found or Substituted Service

S124 ACJA, S88 ACJL Lagos, S138 ACJL Kano: Where service in the manner provided by
section 123 (a) of this Act cannot, by the exercise of due diligence, be effected, the serving officer
may, with leave of the court, affix one of the duplicates of the summons to some conspicuous part
of the premises or place in which the individual to be served ordinarily resides or works, and on
doing so the summons shall be deemed to have been duly served.

NB: substituted service must be by leave of court.

Service on public officers or persons in government service

S125 ACJA, S89 ACJL Lagos, 139 ACJL Kano:

125 ACJA:

(1) Where a public officer is to be served with a summons, the court issuing the summons may
send it in duplicate to the officer in charge of the department in which the person is employed for
the purpose of being served on the person, if it appears to the court that it may be most conveniently
so served.

(2) The officer in charge of the department shall, on receiving the summons, cause it to be served
in the manner provided by section 123 (a) of this Act and shall return the duplicate to the court
under his signature, with the endorsement required by section 115 of this Act, which signature
shall be evidence of the service.

Service outside jurisdiction of court

S126 ACJA, S91 ACJL Lagos, 140 ACJL Kano: Where a court issues a summons to a person
outside its jurisdiction, the summons shall be sent in duplicate to a court in whose jurisdiction the
person resides or works.

Proof of service when serving officer not present

S127 ACJA, S90 ACJL Lagos, 141 ACJL Kano: Where the officer who served a summons is
not present at the hearing of the case, proof of service may be done by endorsement on a duplicate
of the summons and by an affidavit showing when and how the service was effected.

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Receipt of service of summons

S128 ACJA, S92 ACJL Lagos, S142 ACJL Kano:

(1) Where a summons has been served on the person to whom it is addressed or is delivered to any
other person, the person to whom it is addressed or the person to whom it is delivered, as the case
may be, shall acknowledge receipt at the back of the duplicate.

(2) Where service is not effected by delivering the summons to an individual but by some other
method approved by this Act, the person effecting service shall endorse on the duplicate particulars
of the method by which he effected service.

Effect of failure to obey summons

S131 ACJA, S94 ACJL Lagos, S145 ACJL Kano: Where the court is satisfied that the suspect
has been served with a summons and the suspect does not appear at the time and place appointed
in and by the summons and his personal attendance has not been dispensed with under section 135
of this Act, the court may issue a warrant for his arrest and production before the court.

Dispensing with the presence of accused

S135 ACJA:

(1) Where a Magistrate issues a summons in respect of any offence for which the penalty is a fine
not exceeding N10,000.00 or imprisonment for a term not exceeding six months or both, the
Magistrate, on application of the defendant:

a) may dispense with the personal attendance of the defendant where the offence is punishable
by fine or imprisonment or both; and
b) shall dispense with personal attendance of the defendant where the offence is punishable
by fine only if the defendant pleads guilty in writing or appears and so pleads by his LP.

(2) The Magistrate trying a case in which the presence of the defendant has been dispensed with,
may in his discretion, at any subsequent stage of the proceedings, direct the personal attendance
of the defendant and where necessary, enforce the attendance by means of the issuance of a warrant
to arrest the defendant and bring him before the court.

Life span of summons

The life span of a summons is that it remains in force until it is either executed or cancelled S139
ACJA, S100 ACJL Lagos, S149 ACJL Kano: A summons, warrant of any description or other
process issued under a law shall not be invalidated by reason of the person who signed the
summons or warrant being dead, ceasing to hold office or have jurisdiction.
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Public summons

SS 41 and 42 ACJA:

S41; Where a court has reason to believe, whether after evidence or not, that a suspect, against
whom a warrant of arrest has been issued by itself or by any court or Justice of the Peace, has
absconded or is concealing himself so that the warrant cannot be executed, the court may publish
a public summons in writing requiring that person to appear at a specific place and a specific time
not less than 30 days from the date of publishing the public summons.

S42(1) A public summons shall be published:

a) in a newspaper that enjoys wide circulation or circulated in any other medium as may be
appropriate;
b) by affixing it to some conspicuous part of the house or premises or to some conspicuous
place in the town or village, in which the person ordinarily resides; or
c) by affixing a copy to some conspicuous part of the HC or Magistrate’s court building.

(2) A statement in writing from the Judge of the HC or a Magistrate to the effect that the public
summons was duly published on a specified day, shall be conclusive evidence that requirements
of this section have been complied with and that the public summons was published on such day.

SAMPLE DRAFTS IN LINE WITH FIRST SCHEDULE OF ACJA 2015

FORM NO 3 - COMPLAINT

IN THE HIGH COURT OF LAGOS STATE

IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
Charge No: LG/HC/2022/1591
COMPLAINT

The complaint of C.D (address and description), who upon oath (or affirmation) states that A. B
of (address and description) on the ……..….. day of ……………………., 20……… at
…………………… in the ………………………………………..… above-mentioned, did*
………………………………………………………………………………………………………
………………………………………………………………………………………………………

Taken before me, this……………………day of……………………….

………………………………………
Judge [or Magistrate]

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FORM NO. 4

IN THE HIGH COURT OF LAGOS STATE

IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
Charge No: LG/HC/2022/1591

SUMMONS TO DEFENDANT

To A. B of ………………………

Complaint has been made this day by …………………… that you on the……………………. day
of …………. 20……... at…………………………in the …………………………………….
above-mentioned did* ………………………………………

*State concisely the substance of the compliant

You are hereby summoned to appear before the……………. High/magistrate’s court sitting
at……………………………………………………on the ………………. day of………… 20….,
at the hour of………………. in the……………. noon to answer to the said complaint.

Dated this……………………. day of…... 20…………

…………………………………….
Judge [or Magistrate]

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FORM NO. 5
IN THE HIGH COURT OF LAGOS STATE
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
Charge No: LG/HC/2022/1591

WARRANT FOR ARREST OF DEFENDANT WHO HAS DISOBEYED SUMMONS

To…………………. Police Officer or to each and all Police Officers.

Complaint has been made on the…………………day of…………20……….. that A.B hereinafter

called the defendant on the…………………………...day of……………………20…….… at
……………………...……in the …………………….……….………………… above-mentioned
did*…………………………….…………...………………………………………………………

*State concisely the substance of the compliant

And the defendant was thereupon summoned to appear before the High/Magistrate’s Court of the
……………………………………….. in the Judicial Division/Magistrate District sitting
at………………on the……………...day of………………….at the hour of…………….in
the……………noon, to answer to the said charge: …………………………………………………

An oath has been made that the defendant was duly served with the summons, but did not appear,
and that such complaint is true.

You are hereby commanded to bring the defendant before High/Magistrate’s Court of the ……….
in the Judicial Division/Magisterial District sitting at …………………………………………..
forthwith to answer to the said complaint or be further dealt with according to law.

Dated the………………. day of……………...20…………

………………………………………

Judge [or Magistrate]

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FORM NO. 6
IN THE HIGH COURT OF LAGOS STATE
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
Charge No: LG/HC/2022/1591

WARRANT FOR ARREST OF DEFENDANT IN FIRST INSTANCE

To………………………………………………………. Police Officer

Complaint on oath has been made on the ………. day of ……………………………………, by

……………………………….…….... that A.B., hereinafter called the defendant on the
…………………… day of ………………………………………………………..…... at
………………………………………….…… in the ………………………….. above-mentioned
did* ………………………………………………………………………………

*State concisely the substance of the complaint

You are hereby commanded to bring the defendant before High/Magistrate Court of the
…………………………in the Judicial Division/ Magisterial District sitting at
…………………… ……………………………...to forthwith answer the said complaint and be
dealt with according to law.

Dated the…………. day of………………… 20……...

……………………………………

Judge [or Magistrate]

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FORM NO. 7
IN THE MAGISTRATE COURT OF LAGOS STATE
IN THE LAGOS MAGISTERIAL DISTRICT
HOLDEN AT LAGOS
Charge No: LG/MC/2022/1591

SEARCH WARRANT

To …………………………………… and …………………………………….

Whereas information on oath and in writing this day has been made that there is reasonable ground
for believing that there is in (state the place to be searched and state what is to be searched for in
the terms of (a), (b) or (c) of 144(1) of this Act.)

You are hereby commanded in the name of the Federal Republic of Nigeria, with proper assistance,
to enter the above-named (state the place to be searched) and there diligently search for the things
aforesaid and where the same or any part thereof found on search, to bring the things found, and
also the said (name the occupier of the place to be searched) before this Court to be dealt with
according to law.

This warrant may be executed at any time on any day, including a Sunday or public holiday and
may also be executed at any hour during day or night.

Issued at …………………………….. this …………….. day of …………………. 20……….

…………………………………

Magistrate

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INVENTORY OF ITEMS RECOVERED DURING EXECUTION OF SEARCH

WARRANT IN TERMS OF SECTION 144

A. LIST OF ITEMS DETAINED AND PLACE OF SUCH DETENTION

1. ………..
2. ………..
3. …………..
4. …………
5. ……………..

B. LIST OF ITEMS RELEASED TO THE OWNER(S)

1. …………….
2. ……………..
3. …………….
4. …………….
5. ………………

WITNESSES

…………………………………… ………………………………………..
NAME/TITLE OF OCCUPIER OF NAME/RANK/FORCE No.
THE PLACE SEARCHED OF THE OFFICER
EXECUTING THE WARRANT.

…………………………………… ……………………………………….
NAME/RANK.FORCE No OF NAME/TITLE OF AN
ACCOUNTING OFFICER INDEPENDENT WITNESS

Dated the ……………day of……………………. 20….….

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ARREST

Arrest Generally

S32 PA, S3 ACJA, S26 ACJL Kano, A suspect or defendant alleged or charged with committing
an offence established by an Act of the National Assembly shall be arrested, investigated, inquired
into, tried or dealt with according to the provisions of this Act, except otherwise provided under
this Act.

Mode of arrest

S4 ACJA, S1 ACJL Lagos, S27 ACJL Kano,

In making an arrest, the police officer or other persons making the arrest shall actually touch or
confine the body of the suspect, unless there is a submission to the custody by word or action.

No unnecessary restraint

S34 PA, S5 ACJA, S2 ACJL Lagos, S28 ACJL Kano,

A suspect or defendant may not be handcuffed, bound or be subjected to restraint except:

(a) there is reasonable apprehension of violence or an attempt to escape;

(b) the restraint is considered necessary for the safety of the suspect or defendant; or

(c) by order of a court.

Notification of cause of arrest and rights of suspect

S35 PA, S6 ACJA, S3 ACJL Lagos, S29 ACJL Kano

(1) Except when the suspect is in the actual course of the commission of an offence or is pursued
immediately after the commission of an offence or has escaped from lawful custody, the police
officer or other persons making the arrest shall inform the suspect immediately of the reason for
the arrest.

(2) The police officer or the person making the arrest or the police officer in charge of a police
station shall inform the suspect of his rights to:

(a) remain silent or avoid answering any question until after consultation with a legal practitioner
or any other person of his own choice; also 35(2) CFRN

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(b) consult a legal practitioner of his choice before making, endorsing or writing any statement or
answering any question put to him after arrest; and

(c) free legal representation by the Legal Aid Council of Nigeria where applicable:

Provided the authority having custody of the suspect shall have the responsibility of notifying the
next of kin or relative of the suspect of the arrest at no cost to the suspect.

Arrest in lieu prohibited

S36 PA, S7 ACJA, S4 ACJL Lagos, S30 ACJL Kano

A person shall not be arrested in place of a suspect.

Humane treatment of arrested suspect

S37 PA, S8 ACJA, S5 ACJL Lagos, S31 ACJL Kano

(1) A suspect shall:

(a) be accorded humane treatment, having regard to his right to the dignity of his person; and

(b) not be subjected to any form of torture, cruel, inhuman or degrading treatment.

(2) A suspect shall not be arrested merely on a civil wrong or breach of contract.

(3) A suspect shall be brought before the court as prescribed by this Act or any other written law
or otherwise released conditionally or unconditionally.

(4) The arraignment and trial of a suspect for a crime shall be in accordance with the provisions of
this Act unless otherwise stated in this Act.

In Holgate Mohammed v. Duke (1984) Vol. 79 CR. App. Rep. 120, the House of Lords stated
the meaning of the word “arrest” as follows: “it is a continuing act and starts with the arrester
taking a person into custody, it continues until the person restrained is either released from custody
or having been brought before a Magistrate is remanded in custody, by the Magistrate's judicial
act.”

On what constitutes a lawful arrest, House of Lords said, “The mere act of taking a person into
custody does not constitute an arrest unless that person knows, either at the time when he is first
taken into custody or as soon thereafter as it is reasonably practicable to inform, upon what charge,
or on suspicion of what crime he is being arrested.” See also See also Christie v Leachinsky
(1947) A.C. 573.
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ARREST ON WARRANT

A warrant of arrest is an authority in writing by a Court to a police officer or any other person to
arrest an offender.

General authority to issue warrant

S35 ACJA, S21 ACJL Lagos, S54 ACJL Kano: Where under a law, there is power to arrest a
suspect without warrant, a warrant for his arrest may be issued.

See also, S135(2) ACJA which provides on dispensing with the presence of accused after
summons has been issued that the Magistrate trying a case in which the presence of the defendant
has been dispensed with, may in his discretion, at any subsequent stage of the proceedings, direct
the personal attendance of the defendant and where necessary, enforce the attendance by means of
the issuance of a warrant to arrest the defendant and bring him before the court.

NB: According to the circumstances of the case, it is at the discretion of the court to either issue a
warrant of arrest or summons at first instance. S114 ACJA, S80 ACJL Lagos, S131 ACJL Kano:
In every case, the court may proceed either by way of summons to the defendant or by way of
warrant for his arrest in the first instance according to the nature and circumstances of the case.

Circumstances under which Warrant can be Issued

i. where the allegation against the offender is a serious one and or

ii. where a summons is disobeyed.
iii. a law creating an offence may provide that an offender cannot be arrested without a warrant
or that he cannot be so arrested unless found committing the offence e.g., Ss 422 and 419
CC. NB: but even for such offences, an arrest without warrant will not vitiate any proceedings
arising therefrom. See State v Osler (1991) 6 N.W.L.R (pt. 199) 576.

Form and content of warrant of arrest

S36 ACJA, S22 ACJL Lagoa, S55 ACJL Kano:

(1) A warrant of arrest issued under this Act, unless the contrary is expressly provided under any
other law, shall:

(a) bear the date of the day of issue;

(b) contain all necessary particulars; and

(c) be signed by the Judge or Magistrate by whom it is issued.

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(2) A warrant shall state concisely the offence or matter for which it is issued and shall name or
otherwise describe the suspect to be arrested, and it shall order the police officer or officers to
whom it is directed to arrest the suspect and bring him before the court to answer the complaint or
statement, or to testify or be dealt with according to the circumstances of the case, and to be further
dealt with according to law.

Warrant to be issued on complaint only if on oath

A warrant of arrest is issued by a Judge, Magistrate, or Justice of Peace (North only) on a

complaint. The complaint must be on oath S37 ACJA, S23 ACJL Lagos, S56 ACJL Kano: A
warrant of arrest shall not be issued in the first instance in respect of any complaint or statement
unless the complaint or statement is on oath either by the complainant himself or by a material
witness Ikonne v The Commissioner of Police (1986) 4 N.W.L.R (pt. 36) 473.

By virtue of S89(1)(d) CFRN the National Assembly (either senate or reps) or any of its committee
may also issue a warrant to arrest any person to appear before it, if such a person has not obeyed
its summons. They may also impose fines and such shall be executed as if they were imposed by
a court of law.

Time of Issuance

S38 ACJA, S24 ACJL Lagos, S57 ACJL Kano A warrant of arrest may be issued on any day,
including a Sunday or public holiday.

Warrant, to whom directed and duration

S39 ACJA, S25 ACJL Lagos, S58 ACJL Kano

(1) A warrant of arrest may be directed to a police officer by name or to all police officers.

(2) It is not necessary to make a warrant of arrest returnable at any particular time and a warrant
shall remain in force until it is executed or until a Judge or a Magistrate cancels it.

(3) Where a warrant of arrest has been executed and the suspect arrested has been released, the
warrant shall no longer be valid authority for re-arresting the suspect.

Warrant of arrest may in exceptional cases be directed to other persons

S40 ACJA, S26 ACJL Lagos, S59 ACJL Kano: A court issuing a warrant of arrest may, where
its immediate execution is necessary and no police officer is immediately available, direct it to
some other person or persons and the person or persons shall execute the same.

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Execution of warrant and procedure

S43 ACJA, S27 ACJL Lagos, S61 ACJL Kano

(1) A warrant of arrest may be executed on any day, including a Sunday or public holiday.

(2) A warrant of arrest may be executed by any police officer at any time and in any place in any
State other than within the actual court room in which a court is sitting.

(3) The Police officer executing a warrant of arrest shall, before making the arrest, inform the
suspect to be arrested that there is a warrant for his arrest unless there is reasonable cause for
abstaining from giving the information on the ground that it is likely to occasion escape, resistance
or rescue.

(4) A suspect arrested on a warrant of arrest shall, subject to the provisions of the Constitution of
the Federal Republic of Nigeria, sections 44 and 45 of this Act, be brought before the court that
issued the warrant of arrest.

It may also not be executed in Parliament or a Legislative House without the permission of the
President or Speaker. See Ss 15 & 30 Legislative Houses (Powers and Privileges) Act 1958:
“Notwithstanding anything in any written law, no process issued by any court in Nigeria in the
exercise of its civil jurisdiction shall be served or executed within the Chamber or precincts of a
Legislative House while that House is sitting or through the President, Speaker or any officer of a
Legislative House”. Only applies to civil matters. See also Tony Momoh v Senate of National
Assembly (1981) N.C.L.R. 2 1.

Power to arrest on warrant but without the warrant

S44 ACJA, S28 ACJL Lagos, S62 ACJL Kano: A warrant of arrest may be executed
notwithstanding that it is not in the possession at the time of the person executing the warrant but
the warrant shall, on the demand of the suspect, be shown to him as soon as practicable after his
arrest.

Consequences of Disobeying Warrant of Arrest (Public Summons – North & FCT Only)

Public Summons is issued by a Judge of the High Court where there is evidence showing that a
person against whom warrant of arrest was issued has absconded or is concealing himself in order
to frustrate the execution of the warrant. The Judge may publish a public summons in writing
requiring the person to appear at a specified date and time, within 30 days from the date of
publication – SS41&42 ACJA, S60 ACJL Kano. See further explanation under summons above.

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BAIL BY ORDER OF COURT ON EXECUTION OF WARRANT OF ARREST

Court may direct particulars of security to be taken on execution of warrant: S45 ACJA, S29
ACJL Lagos, S63 ACJL Kano

(1) A court, on issuing a warrant for the arrest of a suspect in respect of a matter other than an
offence punishable with death, may, if it thinks fit by endorsement on the warrant, direct that the
suspect named in the warrant be released on bail on his entering into such a recognizance for his
appearance as may be required in the endorsement.

(2) The endorsement shall specify:

a) the number of sureties, if any;

b) the amount in which they and the suspect named in the warrant are, respectively, to be
bound; or are to provide as cash security on the request of the surety or suspect;
c) the court before which the arrested suspect is to attend; and
d) the time at which the suspect is to attend, including an undertaking to appear at a
subsequent time as may be directed by any court before which he may appear.

(3) Where an endorsement is made, the officer in charge of a police station to which on arrest the
suspect named in the warrant is brought, shall discharge him on his entering into a recognizance,
with or without sureties approved by that officer, in accordance with the endorsement, conditioned
for his appearance before the court and at the time and place named in the recognizance.

(4) Where security is taken under this section the officer who takes the recognizance shall cause it
to be forwarded to the court before which the suspect named in the recognizance is bound to
appear.

(5) Subject to the provisions of section 46 of this Act, the provisions of subsections (3) and (4) of
this section shall not have effect with respect to a warrant executed outside Nigeria.

EXECUTION OF WARRANT OUT OF DIVISION OR DISTRICT IN WHICH ISSUED

Procedure on arrest of suspect outside division or district of court issuing warrant S46
ACJA, S30 ACJL Lagos, S64 ACJL Kano

46(1) Where a warrant of arrest is executed in a State outside the division or district of the court
by which it was issued, the suspect shall, unless security is taken under section 45 of this Act, be
taken before the court within the division or district in which the arrest was made.

(2) The court shall, if the suspect, on such inquiry as the court considers necessary, appears to be
the suspect intended to be arrested by the court which issued the warrant, direct his removal in

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custody to that court, but if the suspect has been arrested in respect of any matter other than an
offence punishable with death and:

a) is ready and willing to give bail to the satisfaction of the court within the division or district
of which he was arrested; or
b) where a direction had been endorsed under section 45 of this Act on the warrant and the
suspect is ready and willing to give the security required by the direction, the court shall
take bail or security, as the case may be, and shall forward the recognizance, if such be
entered into, to the court which issued the warrant.

(3) Nothing in this section is deemed to prevent a police officer from taking security under section
30 of this Act.

Should a Magistrate to whom the warrant is taken endorse it as a matter of course?

NO. He has to satisfy himself that there are sufficient grounds for the issuance of the warrant by
the issuing state. Thus, if its issuance results in abuse of legal process, he has to refuse his
endorsement on the warrant The Police v Apampa Suit No. 42/1968. Also, where the warrant is
issued in respect of an offence not known to the law of the state of issue or which offence has
ceased to be an offence in the state of issue, he should not make any endorsement R. v The Comr
of Metropolitan Police Exparte Harmond (1964) 3 WL.R.I. Where a warrant of arrest is not
endorsed before an arrestee is moved from one place to another, the non-endorsement will be
regarded as a mere procedural irregularity which cannot vitiate proceedings unless there is a failure
of justice Mattaradona v Alu (1995) 8 N.W.L.R (pt. 412),225.

NB: the endorsement requirement is under CPL which is no longer relevant especially for the
purpose of Bar Finals but it is necessary to take note of the cases in case they appear in MCQs.

Warrant issued by the Federal High Court

S47(1) ACJA A warrant of arrest issued by a FHC sitting anywhere in Nigeria may be executed
in any part of Nigeria. This was upheld in Abiola v FRN but note 2021 SC decision in Belgore v
FRN, where it’s held that FHC in Lagos lacked jurisdiction to try the charge against the appellant
because the crime was not committed in Lagos but Kwara. The difference between the two is that
the former is on execution of warrant of arrest while the latter is proper prosecution of the case.

Irregularities in summons, warrant, service, or arrest

S136 ACJA, S98 ACJL Lagos, S146 ACJL Kano

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Where a defendant is before a court, whether voluntarily, or on summons, or after being arrested
with or without warrant, or while in custody for the same or any other offence, the trial may be
held notwithstanding:

(a) any irregularity, defect, or error in the summons or warrant, or the issuing, service, or execution
of the summons or warrant;

(b) the want of any complaint on oath; or

(c) any defect in the complaint, or any irregularity in the arrest or custody of the defendant.

Variation between charge, summons or warrants

S138 ACJA, S99 ACJL Lagos, S148 ACJL Kano A variance between the charge contained in
the summons or warrant and the offence alleged in the complaint, or between any of them and the
evidence adduced on the part of the prosecution, shall not affect the validity of any proceeding.

Process valid notwithstanding death or vacation of office of person issuing

S139 ACJA, S100 ACJL Lagos, S149 ACJL Kano A summons, warrant of any description or
other process issued under a law shall not be invalidated by reason of the person who signed the
summons or warrant being dead, ceasing to hold office or have jurisdiction.

ARREST WITHOUT WARRANT

Who can arrest without warrant?

An arrest without warrant can be made by three categories of persons, namely:

• Police officers
• Judicial officers
• Private persons

(a) Police

Arrest by police officer without warrant

S38 Police Act (PA), S18 ACJA, S10 ACJL Lagos, S41 ACJL Kano

38.-(1) A police officer may, without an order of a court and without a warrant of arrest, arrest a
suspect-

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a) whom he suspects on reasonable grounds of having committed an offence, against a law in

Nigeria or against the law of any other country, unless the law creating the offence provides
that the suspect cannot be arrested without, warrant.
b) who commits an offence in his presence;
c) who obstructs a police officer while in the execution of his duty, or who has escaped or
attempts to escape from lawful custody;
d) in whose possession anything is found which may reasonably be suspected to be stolen
property or who may reasonably be suspected of having committed an offence with
reference to the thing;
e) whom he suspects on reasonable grounds of being a deserter from any of the armed forces
of Nigeria;
f) whom he suspects on reasonable grounds of having been involved in an act committed at
a place outside Nigeria which, if committed in Nigeria, would have been punished as an
offence, and for which he is, under a law in force in Nigeria, liable to be apprehended and
detained in Nigeria;
g) having in his possession without lawful excuse, the burden of proof which excuse shall lie
on the person, any implement of housebreaking, car theft, firearm or any offensive or
dangerous weapon;
h) whom he has reasonable cause to believe a warrant of arrest has been issued by a court of
competent jurisdiction in Nigeria;
i) found in Nigeria taking precautions to conceal his presence in circumstances, which afford
reason to believe that he is taking such precautions with a view to committing an offence;
j) whom he is directed to arrest by a judge or magistrate;
k) whom he reasonably suspects to be planning to commit an offence for which the police
officer may arrest without a warrant, if it appears to him that the commission of the offence
cannot be otherwise prevented; or
l) required to appear by a public summons issued under this Act or any other Act,
m) to protect a child or other vulnerable person from the suspect in question; and
n) to prevent the suspect in question from-
i. causing physical injury to himself or any other person,
ii. suffering from physical injury,
iii. causing loss of or damage to property;
iv. committing an offence against public decency where members of the public going
about their normal business cannot reasonably be expected to avoid the person in
question, or
v. causing an unlawful obstruction of the highway

(2) No person shall be arrested without warrant except as provided in subsection (1).

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(3) The authority given to a police officer to arrest a suspect who commits an offence in his
presence is exercisable in respect of offences committed in the officer’s presence notwithstanding
that the Act creating the offence provides that the suspect cannot be arrested without a warrant.

See also Dallison v Caffrey (1964) 2 Al E.R 1203; Associated Provincial Picture House Ltd v
Wednesbury Corporation (1948) 1 K.B.224. see Lord Diplock in Holgate Mohammed v The
Duke 79 Cr. App.Rep.120.

NB Agaba: The test of reasonability is an objective one to be determined from the circumstances
of each case. In Commissioner of Police v. Obolo, it was held that the test of reasonability of
belief is not a subjective one but an objective one. It was further held that whenever the question
arises as to whether an arrest was lawful in a given circumstance the burden is on the person who
carried out the arrest to show that the arrest and/or detention was constitutional or lawful in the
circumstance. In Jackson v. Omorokuna, the plaintiff and another person were seen at night in a
crime prone area dragging a motorcycle, the key and particulars of which the duo could not
produce on demand. When the defendant demanded for the particulars and the ignition keys and
the plaintiff and his colleague could not produce them, he arrested them and took them to the police
station where they were detained. Upon their release, the plaintiff brought this action against the
defendant for unlawful arrest and false imprisonment. The court held that the circumstances of
the plaintiff's arrest were such that it cannot be said that the defendant has no reasonable ground
to suspect the plaintiff and the other person per Igu J (as he then was).

NB: It may well be that an offence has not been in fact committed. Notwithstanding a police officer
who on reasonable grounds effects an arrest is not liable for false imprisonment See Dallison v.
Caffrey (1964) 2 All E.R. 1203. The House of Lords noted in a case that to determine whether it
was reasonable for a constable to have arrested a person without warrant based upon a suspicion
that an offence has been committed, the power of the police to arrest being an executive discretion
must be exercised in good faith to the exclusion of considerations of matters which are irrelevant
to what he has to consider. This is the Wednesbury principles fashioned after the classical case of
Associated Provincial Picture House Ltd. v Wednesbury Corporation (1948) 1 K.B. 224. See
Lord Diplock in Holgate Mohammed v The Duke 79 Cr. App. Rep. 120.

NB: A person arrested on the authority of a warrant cannot be re-arrested based on the same
warrant but instead be re-arrested without warrant. In R v Akinyanju where the accused was
arrested on a previously executed arrest warrant, the court held that as soon as arrest warrant has
been executed, it loses its life span. Hence the act of re-arresting the accused on a warrant which
had been earlier executed is irregular.

In arrest without warrant, once the arrest is made upon reasonable grounds, the police is not in
breach of any law Jackson v Omorokuna. If the arrest is not based on reasonable suspicion, the
police may be liable for unlawful arrest COP v Obolo. If no offence was actually committed, and
although an offence was committed, the arrested person was not responsible for it, the Police
Officer is not liable for unlawful arrest Wiltshire v Barrett. Where a policeman detains a suspect
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in order to confirm his alibi or to investigate the case further, he would not be liable for false
imprisonment Dallison v Caffery.

(b) Private Person

S39 PA, S20 ACJA, S12 ACJL Lagos, S43 ACJL Kano

12 (1) A private person may arrest any person who commits an offence triable on information in
his presence or whom he reasonably suspects of having committed an offence triable on
information.

(2) After the arrest of the person under subsection (1) of this Section, a private person shall not
subject the arrested person to torture, inhuman or degrading treatment.

Arrest by owner of property: S21 ACJA, S13 ACJL Lagos, S4(3) ACJL Kano

A suspect found committing an offence involving injury to property may be arrested without a
warrant by the owner of the property or his servants, agent or persons authorised by him.

NB: A private person effecting an arrest may render himself liable in damages for false
imprisonment if he fails to hand over the person arrested to a police officer or take him to the
nearest police station without undue delay John Lewis & Co Ltd v TIMS.

A person who resists by force an attempt by a private person to arrest him in the exercise of his
right cannot claim the benefit of self-defence Abdullahi v Borno Native Authority.

NB: Effect of irregularity in procedure for arrest: The trial of an accused person shall not be
affected by reason of any defect in the issuance of the warrant with which he was arrested or the
irregularity in the procedure of his arrest or his custody after his arrest S98 ACJL, Okotie v Cop.
Thus, it is only the arrest that is unlawful. At best if the fundamental right of the accused was
breached, civil action can be maintained jointly and severally against the persons who made the
false complaint and against the arresting officers for damages. Thus, sue the person and join the
police as party to the suit Elias v Pasmore.

(c) The Magistrate/Judge/Justice of the Peace

S25 ACJA, S16 ACJL Lagos, S45(2) ACJL Kano (1) A Magistrate may arrest or direct the arrest
in his presence of a suspect whose arrest on a warrant he could have lawfully ordered if the facts
known to him at the time of making or directing the arrest had been stated before him on oath by
some other person.

(2) Where a suspect is arrested in accordance with the provisions of either section 23 or 24 of this
Act, the Judge or Magistrate making or directing the making of such arrest may deal with the
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suspect so arrested in the same manner as if the suspect had been brought before him by or under
the directions of any other person.

S41 PA, S26 ACJA, S15 ACJL Lagos, S45(1) ACJL Kano

A Judge, Magistrate, or Justice of the Peace may arrest or direct the arrest of a suspect committing
an offence in his presence and shall thereupon hand him over to a police officer who shall proceed
to take necessary action.

How to deal with the person arrested

S14 ACJA, S43 PA:

(1) A suspect who is arrested, whether with or without a warrant, shall be taken immediately to a
police station, or other place for the reception of suspect, and shall be promptly informed of the
allegation against him in the language he understands.

(2) A person who has the custody of an arrested suspect shall give the suspect reasonable facilities
for obtaining legal advice, access to communication for taking steps to furnish bail, and otherwise
making arrangements for his defence or release.

(3) Notwithstanding the provision of subsection (2) of this section, any such communication or
legal advice shall be done in the presence of an officer who has custody of the arrested suspect.

Handing over of an arrested suspect by private person

S40 PA, S23 ACJA, S14 ACJL Lagos, S44 ACJL Kano:

(1) A private person who arrests a suspect without a warrant shall immediately hand over the
suspect so arrested to a police officer, or, in the absence of a police officer, shall take the suspect
to the nearest police station, and the police officer shall make a note of the name, address and other
particulars of the private person making the arrest.

(2) Where there is reason to believe that the arrested suspect comes under the provisions of section
18 (1) of this Act, a police officer shall re-arrest him.

(3) Where there is reason to believe that the suspect has committed an offence, and he refuses on
the demand of a police officer to give his name and address, or gives a name or address which the
officer reasonably believes to be false, he shall be dealt with under the provisions of section 19 of
this Act.

(4) Where a suspect so arrested by a private person is handed over to a police officer or to an
official of an agency authorized by law to make arrests, the police officer or official shall take note
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of the name, residential address and other particulars of the private person making the arrest, and
the date, time and other circumstances of the arrest, and where the arrested suspect is taken to the
police station or to the agency, the charge room officer shall make the entries in the crime diary.

(5) The police officer or official to whom the arrested suspect is handed over by the private person
shall obtain from the private person who made the arrest a formal witness statement setting out the
facts and circumstances of the arrest.

(6) Where there is sufficient reason to believe that the suspect handed over has committed an
offence, he shall immediately be re-arrested but if there is no sufficient reason to believe that the
suspect has committed an offence, he shall be released immediately.

What happens to the accused while in police station?

The law enjoins the police officer to bring the accused to Court within 40km radius having
jurisdiction over the case within twenty-four hours or within forty-eight hours in other cases,
and if this is not practicable, he shall be released on bail, upon his entering into recognizance with
or without sureties, except the offence is a capital offence or of a very serious nature S35(5)
CFRN.

Release on bail of a suspect arrested without warrant

S30 ACJA, S17 ACJL Lagos, S49 ACJL Kano

30 (1) Where a suspect has been taken into police custody without a warrant for an offence other
than an offence punishable with death, an officer in charge of a police station shall inquire into the
case and release the suspect arrested on bail subject to subsection (2) of this section, and where it
will not be practicable to bring the suspect before a court having jurisdiction with respect to the
offence alleged, within 24 hours after the arrest.

(2) The officer in charge of a police station shall release the suspect on bail on his entering into a
recognizance with or without sureties for a reasonable amount of money to appear before the court
or at the police station at the time and place named in the recognizance.

(3) Where a suspect is taken into custody and it appears to the police officer in charge of the station
that the offence is of a capital nature, the arrested suspect shall be detained in custody, and the
police officer may refer the matter to the AGF for legal advice and cause the suspect to be taken
before a court having jurisdiction with respect to the offence within a reasonable time.

SEARCH

Search simply means the examination of a person's body, premises or thing. It generally infringes
on S37 CFRN-right to privacy.
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For the purpose of criminal litigation, search would mean looking for what has been concealed.
The purpose of a search is to obtain evidence of the commission of a crime.

Search could be of:

i. A person
ii. Premises
iii. Things

Power to Search

S48(1) PA, A police officer may seize and retain anything for which a search has been authorised.

(2) ln every case in which property is seized under this section, the person on whose premises it
was at the time of seizure or the person from whom it was taken, if other than the person on whose
premises it was, may be summoned, arrested and brought before a court to account for his
possession of the property, and the court shall make such order on the disposal of the property and
may award costs as the justice of the case may require.

(3) An authority under subsection (2) may only be given when the premises to be searched are, or
within the preceding twelve months have been, in the occupation of any person who has been
convicted of receiving stolen property or of harbouring thieves, or of any offence involving fraud
or dishonesty, and punishable by imprisonment.

(4) While searching the premises, a police officer shall not violate the human nights of persons
found in the premises that is being searched.

Search of Persons

A search on persons may be conducted with or without a search warrant. A search on persons is
usually done by policemen S48 PA. Special prosecutors like NDLEA, EFCC, ICPC and Customs
officials can search persons without warrant S494 NDLEA Act and S133 Custom & Excise
Management Act. A police officer may detain and search any person whom he reasonably
suspects of having in his possession or conveying in any manner anything which he has reason to
believe to have been stolen or otherwise unlawfully obtained S49 PA. The test of reasonable
suspicion is an objective one not subjective. Thus, where a police officer, without reasonable
suspicion conducts the search of a person, he would render himself liable in damages.

Search of arrested suspect

S52 PA, S9 ACJA, S5 ACJL Lagos, S32 ACJL Kano

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(1) Where a suspect is arrested by a police officer or a private person, the officer making the arrest
or to whom the private person hands over the suspect:

a) may search the suspect, using such force as may be reasonably necessary for the purpose;
and
b) shall place in safe custody all articles other than necessary wearing apparel found on the
suspect.

(2) Where an arrested suspect is admitted to bail and bail is furnished, he shall not, subject to the
provisions of section 11 of this Act, be searched unless there are reasonable grounds for believing
that he has on his person any:

a) stolen article;
b) instrument of violence or poisonous substance;
c) tools connected with the kind of offence which he is alleged to have committed; or
d) other articles which may furnish evidence against him in regard to the offence, which he is
alleged to have committed.

(3) Where it is necessary to search a suspect, the search shall be made decently and by a person
of the same sex unless the urgency of the situation or the interest of due administration of
justice makes it impracticable for the search to be carried out by a person of the same sex.

(4) Notwithstanding the provisions of this section, a police officer or any other person making an
arrest may in any case take from the suspect any instrument of violence or poisonous substance
which he has on his person.

Examination of arrested suspect.

S53 PA, S11 ACJA, S5(6) ACJL Lagos, S34 ACJL Kano Where a suspect is in lawful custody
on a charge of committing an offence of such a nature and alleged to have been committed in such
circumstances that there are reasonable grounds for believing that an examination of his person
will afford evidence as to the commission of the offence, a qualified medical practitioner or any
certified professional with relevant skills, acting at the request of a police officer, may make such
an examination of the suspect in custody as is reasonably necessary in order to ascertain the facts
which may afford the evidence, and to use such force as is reasonably necessary for that purpose.

Where the person to be searched is a woman, the search shall only be conducted by another
woman. S149(3) ACJA, S109 ACJL Lagos, S159(3) ACJL Kano, where a suspect in or about
the building, thing or place is reasonably suspected of concealing on his person an article for which
search should be made, the suspect may be searched and where the suspect to be searched is a
woman she shall be searched by another woman and may be taken to a police station for that
purpose.
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Search of Premises

As a general rule, premises cannot be searched without a search warrant. Thus, any search of any
premises without a search warrant is unlawful and a breach of S37 CFRN.

The exceptions to this rule are: AC DOIG

1. Arrest purposes: A police officer acting under a warrant of arrest or otherwise having
authority to arrest has reason to believe that the person to be arrested has entered into or is
within any premises, the police officer can enter into the premises to search for the person
to be arrested, notwithstanding the fact that he had no search warrant S55 PA, S7 ACJL;
SS12(1) and 149(1) ACJA.
2. Custom officer: A custom officer may enter or break into a place where he reasonably
believes that illegally imported goods are kept S147 CEMA
3. Drugs: An officer of the NDLEA or police officer, in order to recover drugs kept in
premises may enter and search such premises without a search warrant S41 NDLEA Act
4. Order of court: Acting upon an order of court for the release of an unlawfully abducted
person
5. Implied from a warrant of arrest: Warrant of arrest comes with an implied authority to
search person upon whom search is to be conducted.
6. Government property is harboured: The NSCDC do not need a search warrant to enter
premises where there is a reasonable belief that government property is being unlawfully
harboured S3(1)–(3) Nigerian Security and Civil Defence (Amendment) Act 2001,
Commandant General NSCD & Anor v Emason Ukpeye.

SEARCH WARRANTS

Application for search warrant.

S143 ACJA, S153 ACJL Kano Where an investigation under this Act is being made by a police
officer, he may apply to a court or Justice of the Peace within the local limits of whose jurisdiction
he is for the issue of a search warrant.

Cases in which search warrants may be issued

S144 ACJA, S104 ACJL Lagos, S154 ACJL Kano

(1) Where a court or Justice of the Peace is satisfied by information on oath and in writing that
there is reasonable ground for believing that there is in any building, ship, carriage, receptacle,
motor vehicle, aircraft or place:

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(a) anything upon or in respect of which any offence has been or is suspected to have been
committed,

(b) anything which there is reasonable ground for believing will provide evidence as to the
commission of an offence, or

(c) anything which there is reasonable ground for believing is intended to be used for the
purpose of committing an offence,

the court or Justice of the Peace may at any time issue a warrant authorising an officer of
the court, member of the police force, or other person named to act in accordance with
subsection (2) of this section.

(2) A search warrant issued under subsection (1) of this section shall authorize the officer of the
court, a police officer, or other person named to:

(a) search such building, ship, carriage, receptacle, motor vehicle, aircraft or place for any
such thing, and to seize any such thing until further trial proceeding before the court issuing
the search warrant or some other court to be dealt with according to law; and

(b) arrest the occupier of the house or place where the thing was found where the court
deems fit to direct on the warrant.

Who can issue a search warrant?

There are three categories of persons that can issue a search warrant. They are

i. Magistrate S146(1) ACJA, S106 ACJL Lagos, S156(1) ACJL Kano

ii. Judge S146(1) ACJA
iii. Justice of the Peace S146(1) ACJA
iv. Superior Police Officer above the rank of a Cadet ASP CAN NO LONGER ISSUE A
WARRANT FOR ARREST BY VIRTUE OF POLICE ACT 2020 WHICH
OMITTED SAME

Search warrant to whom directed

S147 ACJA, S107 ACJL Lagos, S157 ACJL Kano A search warrant may be directed to one or
more persons and, where directed to more than one, it may be executed by all or by any one or
more of them.

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Time when search warrant may be issued and executed

S148 ACJA, S108 ACJL Lagos, S158 ACJL Kano A search warrant may be issued and executed
at any time on any day, including a Sunday or public holiday.

Difference in timing in ACJL Lagos

S108(1) A search warrant may be issued and executed on any day including a Sunday or public
holiday. It shall be executed between the hours of 5.00 a.m. and 8.00 p.m., but the Court may, in
its discretion, authorise by the warrant the execution of the warrant at any hour.

(2) Where a Magistrate authorises the execution of a search warrant at any hour other than between
the hours of 5.00 a.m. and 8.00 p.m. such authorisation may be contained in the warrant at the time
of issue or may be endorsed thereon by any Magistrate at any time thereafter prior to its execution.

Contents of a Search Warrant- AIDS

a) Address of the premises to be searched;

b) Items to be searched for;
c) Directive that the items be seized and brought to court; and
d) Signature of the person issuing it Elias v Pasmore

Life span of search warrant:

Search warrant remains in force until it is executed or cancelled by the Court that issued it-S106(2)
ACJL and 146(2) ACJA.

Seizing goods not specified in the search warrant:

Generally, only items mentioned in the search warrant should be seized. However, where the
person executing the search warrant comes across items which he reasonably believes to have been
stolen or are relevant in respect of other offences, he can lawfully seize such items Reynolds v
The Commissioner of Police for the Metropolis (1985) 80 Cr. App. Rep. 125.

Execution of search warrant outside jurisdiction.

S151ACJA: A person executing a search warrant beyond the jurisdiction of the court or Justice of
the Peace issuing it shall, before doing so, apply to the court within whose jurisdiction search is to
be made and shall act under its directions.

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Admissibility of evidence illegally obtained:

Non-compliance with any of the provisions of the law relating to the issuance and execution of a
search warrant will render such search unlawful. Where documents or any other materials are
seized from the premises of another in circumstances that render such removal unlawful, such
documents may notwithstanding, be admitted in evidence at the trial, where they are relevant.

Reason being that the basis of admissibility of any evidence is its relevancy Kuruma v The Queen
1955) 1 All E. R. 236, Musa Sadau v The State (1968) NMLR 208.

S14 EA, however, gives the Court the discretion to exclude improperly obtained evidence if it is
of the opinion that the undesirability of admitting it out-weights its desirability. S15 EA provides
for matters the Court should take into consideration in its exercise of discretion under S14 viz:

1. The probative value of the evidence;

2. The nature of the relevant offence, cause of action of defence and the nature of the subject-
matter of the proceeding;
3. The gravity of the impropriety or contravention;
4. Whether the impropriety or contravention was deliberate or reckless;
5. 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
6. The difficulty, if any, of obtaining the evidence without impropriety or contravention of
law.

Liability for procuring a search warrant without reasonable cause:

Civil liability attaches to procurement of a search warrant without reasonable cause: Wuraola
Kuku v Olushoga; Balogun v Amubikahu; Bayol v Ahemba; Garba v Maigoro; Ojo v Lasisi;
UAC PLC v Sobodu.

It was held in Garba v Maigoro that where a person without reasonable cause, causes a police
officer to procure a search warrant leading to the search of another, his premises or even leading
to his arrest, detention and/or prosecution, the person who laid such malicious complaint on the
basis of which the officer acted will be liable in damages.

i. In the case of a complaint leading to arrest and detention of the suspect, the complainant
will be liable for false imprisonment.
ii. In the case of a search of the person or his premises, the complainant will be liable for
malicious procurement of a search warrant.
iii. In the case of a complaint leading to the prosecution of the suspect, and which prosecution
if ended in an acquittal, the complainant will be liable for malicious prosecution except
there was reasonable and probable cause Garba v Maigoro.
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At all times, what is important in the consideration whether the defendant is liable is to ascertain
that the defendant set the law in motion against the plaintiff. Where the complainant sets the law
in motion against another person, there is no protection for him even where the actual arrest,
detention and perhaps, prosecution is done by the police Balogun v Amubikahu.

However, in Ojo v Lasisi and UAC PLC v Sobodu the Court held that there will be no liability
where the complaint was made in good faith and upon reasonable suspicion. There is NO
LIABILITY if the complaint was made in good faith.

Where the complaint was made recklessly or without reasonable cause, then the complainant may
be liable in damages for malicious procurement of a search warrant Fowler v Doherty J.I.C.

Where the complainant made a report, and a search warrant is issued and executed, he may not be
liable in damages for false imprisonment, if the person whose premises is searched is arrested and
detained by the Police: Kuku v Olushoga; Adefumilayo v Oduntan.

(C) SEARCH OF THINGS

• A search of things may be conducted with or without a search warrant,

• A police officer can stop and search vehicles on the road without a warrant Karuma v R
• Bag; No search warrant
• Aircraft; search warrant is needed
• Vessel; search warrant is needed
• Powers of search of things without warrant is also conferred on customs officers, the
Federal and State Task Forces of NAFDAC etc.

CONSTITUTIONAL SAFEGUARDS

1. Right to Life: a suspect is entitled to his right to life – S33(1) CFRN. However, the exception
is as provided under S33 (2) (b) CFRN – killing of a suspect may be justified in order to effect a
lawful arrest or to prevent his escape from lawful detention.

2. Right to Dignity of Human Person: any search on or arrest of a suspect shall be done with
high sense of dignity. Such suspect shall not be threatened or tortured or molested S34 CFRN.

3. Right to Personal Liberty: every suspect is entitled to his personal liberty. Thus, no suspect
shall be unlawfully arrested S35(1) CFRN. However, the exception under S35(1) (c) CFRN
recognises the right to arrest a person under a warrant or on reasonable suspicion of his having
committed an offence or to prevent commission of offence.

4. Right to Remain Silent: a suspect arrested has the right to remain silent and not answer any
question until after consultation with a lawyer or any person of his choice S35(2) CFRN 1999.
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5. Right to be Informed of the Reasons of Arrest: Any person who is arrested or detained shall
be informed in writing within twenty-four hours (and in a language that he understands) of the
facts and grounds for his arrest or detention S35(3) CFRN.

6. Right to be Charged to Court within a Reasonable Time: Any person who is arrested or
detained in execution of an order of court or on reasonable suspicion of having committed a crime
or to prevent him from committing a crime, shall be brought before a court of law within a
reasonable time S35(4) CFRN. The expression "a reasonable time" means - (a) in the case of an
arrest or detention in any 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 S35 (5) CFRN.

7. Right to Public Apology and Compensation: S5(6) CFRN makes provision for public
apology and compensation from the appropriate authority or person to a person who is unlawfully
arrested or detained.

Where these rules are violated, these steps may be taken:

i. Enforcement of FREP Rules 2009

ii. Habeas Corpus through originating motion S8(3) ACJA, S32 ACJA, S64(2) PA
iii. Right to administrative bail through a lawyer by providing sureties S30 ACJA
iv. If proved unjustifiable, the person is entitled to compensation, apology etc.

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3.0 PRE-TRIAL INVESTIGATION AND POLICE INTERVIEWS

MEANING AND PURPOSE OF PRE-TRIAL INVESTIGATION

Investigation is a systematic collection of information about crime and the assembly of physical
and testimonial evidence within the frame work of the law for the purpose of identifying the author
of a crime and providing evidence for the successful prosecution of criminal suspects.

Authority to investigate:

The power of the police and other agencies to investigate a crime is derived from the provisions
of the laws that establish them SS4 and 31-46 PA 2020; SS3-19 ACJA; 26-29 ACJL Kano, 2019;
SS1-10 ACJL, Lagos; S12 EFCC Act; S34 NDLEA ACT, etc.

The power of the police to investigate a crime is so strong to the extent that no court of law has
power to stop the police from investigating a crime and whether to or how to investigate a crime
is a matter within the discretion of the police S35(1)(C) CFRN and the case of I.G.P. v UBA
(2015) 11 N.W.L.R. (part 1471) p. 405 ratios 1-6; Hassan v EFCC (2014) 1 NWLR (pt.1389)607,
Fawehinmi v IGP (2002) 7 NWLR (pt. 767).

The SC held in Onyekwere v State that “If a complaint is made to the police that an offence has
been committed, it is their duty to investigate the case not only against the person about whom the
complaint was made, but also against any other person who may have taken part in the commission
of the offence.”

NB: powers of the police to investigate do not extend to settlement of civil disputes, breach of
contract or debt collection Mclaren v Jennings; S8(2) ACJA; S31(2) ACJL, Kano; S32(2) PA

Also; arrest and detention in lieu of another is prohibited S36 PA; S7 ACJA; S4 ACJL Lagos,
S.30 ACJL, Kano

It should be noted that police interview may involve not only a suspect, it may extend to witnesses
connected with the commission of the offence. So, the police has the right to invite different
persons in the course of investigation.

Rights of a suspect in custody

1. Right to be informed in writing of the reason for his arrest in the language he
understands S35(3) CFRN; SS6 (1) & 14 (1) ACJA; S35(1) PA; S3(1) ACJL.; S29 (1)
& 37 ACJL, Kano
2. Right to be informed of his rights-(rights to remain silent, to legal representation/free
legal aid & right to get the suspect’s relatives notified of the fact that he has been arrested
and is under custody at no cost)-SS 6 ACJA; S35 (2) & (3) PA; S. 29(2) ACJL, Kano

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3. Right to remain silent: a person arrested or detained shall have right to remain silent until
after consultation with his legal practitioner or any other person of his choice S35(2)
CFRN; S17(1) ACJA
4. Right not be subjected to any form of inhuman or degrading treatment S34 CFRN;
S8(1) ACJA; SS34 & 37(1) PA; SS28 & 31(1) ACJL, Kano; Uzoakwo v Ezeonu II.
5. Right to reasonable facilities for defence. S14 AND 15 ACJA., 2015; S37 (2) ACJL
KANO; S.43(2) PA; S. 37(2) ACJL, KANO
6. Right to interpreter: this applies where the suspect does not understand English which is
the official language in Nigeria S36(6) CFRN; S17(3) ACJA; S43(1) & 60(3) PA; S37(1)
ACJL, KANO
7. Right to be charged to court within reasonable time S35(4) & (5) CFRN; S32(3) PA;
S31(3) ACJL, KANO
8. Right to legal representation S36(6)(c) CFRN; S.17(2) ACJA; S35(2) PA
9. Right to bail pending completion of investigation S35(4) & (5) CFRN; S61, 62 & 63
PA; SS30 & 31 ACJA
10. Right to have his statement (where he volunteers to make) taken in the presence of a
legal practitioner, an officer of the legal aid council, officer of any civil society org. or
any person of his own choice S17(1) & (2) ACJA; S. 60(2) PA
11. Right to have a recorded inventory of all items/properties collected from him properly
recorded and signed S46 PA; S10 ACJA

Agaba identified two types of investigation approaches to include:

• Crime-based investigation approach (CBIA)

• Target-based investigation approach (TBIA)

To be more effective and professional, Agaba recommends stages of the interview to include;

• Rapport Building Stage

• Information Exchange Stage
• Challenge Stage
• Concluding Stage

CONFESSIONAL STATEMENT AND THE JUDGES’ RULES

Meaning of confession:

Confession is an admission made at any time by a person charged with a crime stating or
suggesting the inference that he has committed that crime S28 EA.

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This definition covers both extra judicial and judicial confession, as well as an incriminating
admission that falls short of full confession Akpan vs The State (2001); Sule v State (2009).

It is settled that to be relevant and admissible in evidence, a confession must be voluntary and must
be a direct, positive and unequivocal admission of guilt S29 EA., Musa v The State (2018) 7 scm.
p. 92.; Kamila v The State (2018) 6 scm. p.100

Before a confessional statement could become relevant and admissible in evidence it must have
been made free from any form of oppression and must not have been made in consequence of
anything said or done which was likely in the circumstance existing at the time to render it
unreliable SS29 EA.

In State v Ibrahim (2019) LPELR-47548 (SC), it was held that for a confession to be relevant
and admissible, the court must be satisfied that it was voluntarily made.

Recording statement of the suspect:

Before recording of the statement of suspect it is the requirement of the law that the suspect has a
right to decide whether to make a statement (right of silence), where he chooses to make, the
following would be observed:

• The making of the statement has to be in the presence of a LP of his choice/an officer of
the law/an officer of CSO/any person of his choice S17(1) & (2) ACJA; S60(2) PA
• The statement must be in writing and/or also electronically recorded in video/audio or other
similar means S15(4) ACJA; S38(4) ACJL, Kano; S44(4) PA (note that oral confessional
statement is still admissible-(5) of the above sections-FRN v Iweka (2013);
• Where a suspect does not understand or speak English, an interpreter can write for him. He
shall take down the exact words spoken by the suspect and both the suspect and the
interpreter must endorse S17(3) (4) & (5) ACJA; Olanipekun v The State (2016) 13
N.W.L.R. (part 1528) p. 100; State v Rabiu (2013)8 NWLR (pt. 1357) p. 585.

NB: when a statement is recorded in a language different from the one understood by the suspect
a competent interpreter shall be used, the interpreter shall sign the statement. But failure to sign
may not affect the admissibility of the statement in evidence. But in the cause of trial, both the
recorder and the interpreter shall have to testify as to their role in taking the statement before it
becomes admissible Nweze v The State, Olalekan v The State (2002), F.R.N. v Usman (2012);
Ifaramoye v The State (2017); Bello v C.O.P. (2018).

Types of Confessions

1. Formal/Judicial Confession: this is a confession made in court before a judge or a

Magistrate or other tribunal. For instance, where the accused pleads guilty to the charge
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upon same being read to him by the court or where the accused admits guilt in a statement
in a preliminary inquiry.
2. Informal/Extra-Judicial Confession: any statement made outside the court by an accused
person or a suspect tending to show that he is guilty of the offence for which he is charged
or suspected is called an informal confession. It may be oral or written Arogundade v
State. All confessions made to the police or other law enforcement officers qualify as
informal confessions.

Confession obtained from a Defendant through an Interpreter

In Bello v State, the court held that evidence of an IPO about confession of a crime made by an
accused person in a language the IPO does not understand but relayed to him by an interpreter
amounts to inadmissible hearsay evidence where the interpreter is not called as a witness.
Meanwhile, S17(3) ACJA provides that where a suspect does not understand or speak or write in
the English language, an interpreter shall record and read over the statement to the suspect to his
understanding and the suspect shall then endorse the statement as having been made by him, and
the interpreter shall attest to the making of the statement.

Admissibility of Confessional Statements

The following principles are applicable in admissibility of confessional statements:

1. The statement must admit or acknowledge that the maker of the statement committed the
offence alleged against him.
2. The confession must be direct, positive and unequivocal as to the guilt of the accused
person State v Enabosi.
3. The statement must contain admission of both the actus reus and mens rea (where mens
rea is required) Omisade v Queen.
4. The confession must have been made voluntarily S29 EA.
5. The confession of an accused is admissible only against him and not against any other
person Mbang v State. However, the confession may be admissible against a co-accused
where the co-accused admits it by words or through conduct.

What then is the relevance and implication of SS 28 and 29 EA to the recording of a suspect’s
statement as highlighted earlier?

The implication of SS28 & 29 is that any statement which is not relevant and voluntarily made to
the satisfaction of the court is not admissible State v Ibrahim (2019); Agoola v State (2015).

It should also be noted that admissibility is governed by the provision of evidence act Usen v State
(2012) LPELR-20063 (ca)

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How does one challenge a confessional statement?

It is either that:

1. he denies ever making the statement (Retraction) or

2. he made the statement but not voluntarily

Retraction

An accused person may object to a statement on the ground that it was not made by him. This is
called retraction Sule v State. Retraction may arise where:

1. The statement is not signed;

2. The defendant denies that the signature belongs to him;
3. The accused alleges that the statement was not properly or accurately recorded (where the
accused did not write it by himself);
4. The accused alleges that he did not make the oral confession accredited to him;
5. The accused alleges that his written statement was altered by someone;
6. The accused alleges that he did not make the statement;
7. The accused alleges that he was unsettled in mind at the time he made the statement; or
8. The accused alleges that his statement was involuntary but fails to raise objection when it
is tendered. At this stage, the court will deem the statement as tantamount to a denial as
such belated retraction would not affect the voluntariness of the statement Ode v State.

Where there is retraction, it does not affect the admissibility of the statement. The Judge may admit
it when it is tendered and then, decide later at the end of the case whether the accused made the
statement and to ascribe probative value to it, Oguno v State.

However, it will be desirable to have a corroborative evidence, no matter how slight before
convicting on such retracted confessional statement that was admitted Mohammed v State. Thus,
the court must scrutinize the statement to test its truthfulness or otherwise in line with other
available evidence outside the statement in order to see whether they confirm, support or
correspond with the statement.

The appropriate time to retract the confession is when it is sought to be tendered by the prosecution
so that the court will note that the statement was denied by the defendant and will be more ready
to entertain evidence of the retraction in the course of the defence. Any objection coming in the
course of the defence (long after its admission and closure of the prosecution’s case) will be
regarded as an afterthought Usung v State, Mbang v The State.

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Involuntariness or Oppression (Trial within Trial)

By virtue of S29(2) (a) & (b) EA, the Court shall not admit a confession obtained by oppression
or in consequence of anything said or done which will likely in the circumstance make such
confession unreliable, except the prosecution proves to the court beyond reasonable doubt that the
confession was not obtained in such a manner.

S29(3) EA went further and stated that the court can also suo motu require the prosecution to prove
that the confession was not obtained in an oppressive manner. Where the court out of inadvertence
or any other reason fail to fulfil this obligation, the defence counsel is required to object to such
confession being tendered.

S29(5) EA defines “oppression” to include torture, inhuman or degrading treatment, and the use
of threat of violence whether or not amounting to torture.

An accused person may challenge a confessional statement on the allegation of existence of

(inducement, threat or promise) properly proved to emanate from a person before whom a
confession is being taken. Where any of the factors is shown to exist before or in the course of
obtaining a witness statement, it can be said that the statement is obtained in a way or manner
considered oppressive.

The appropriate stage to raise an objection to a confessional statement is when it is about to be

tendered in evidence. It must be made timeously. Any belated denial of the voluntariness of a
confessional statement or its retraction is a mere after thought Usung v State, Mbang v The State.

Where there is an objection as to the voluntariness of the confessional statement, the court must
stop further proceedings and determine the question of voluntariness of the confession before
taking further step by way of admitting or rejecting it Lateef v FRN. The procedure whereby the
court determines the voluntariness or otherwise of a confessional statement is known as “trial
within trial”.

Do these 2 instances have the same legal implication? NO.

The first instance is called retraction and the legal implication is that if one raises an objection
and says that “I did not make the statement”, the court will admit the statement and later, based on
evidence, determine whether he made it or not Ogunye v State (1999) LPELR-2356 (SC)

However, the second instance the person is saying that he was compelled or induced (by
oppression, etc) to make the statement. in that case, a trial within trial would be conducted Yusuf
& Anor v State (2019) 46945 (SC); Ofordike v State (2019) LPELR-46411 (SC)

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What is trial within trial and how is it done? and what happens when there is a trial within
trial?

In C.O.P v Alozie (2017), it was held that a trial within trial ought to be conducted in this
circumstance. The procedure for conducting a trial within trial as was held in Babarinde v State
is as follows:

1. The court halts the main proceedings;

2. The court informs the parties that there is going to be a trial within trial to determine the
voluntariness of the statement sought to be tendered;
3. The court calls on the prosecution to call witnesses to prove voluntariness. The burden is
on the prosecution to prove that it was free and voluntary;
4. Each witness called is sworn or re-sworn as the case may be;
5. Each witness so called is liable to be examined in chief, cross-examined and re-examined
if need be;
6. Exhibits may be tendered;
7. After all prosecution witnesses have testified, the court calls on the defence to call its own
witness if any to refute the position of the prosecution;
8. Defence witnesses are examined in chief, cross-examined and re-examined if need be;
9. Parties are allowed to address the court based on the evidence;
10. The court then delivers a ruling either admitting the statement or rejecting same;
11. Whichever way the ruling goes, the main trial then resumes unless the court suo motu or
on the application of parties, adjourns the matter to another day for continuation of hearing
Babarinde v State.

Conflicting Confessions and Confession Implicating a Co-Accused

1. Conflicting Confessions: where the accused makes two voluntary confessional statements with
full knowledge of what he was doing, it has been held that the trial judge will be right to take the
one that is less favourable to the accused, particularly when that one is the first in time. The second
statement will be taken to be an afterthought Edoko v State.

2. Confession Implicating Co-Accused Persons: confession made by one accused person is a

relevant fact against the person making it only and not against any other person the confession
may implicate Adebowale v State. The rationale for this rule is that the marker may have his own
motives for implicating any other person who may not have opportunity of refuting what has been
alleged against him. However, the exceptions to this rule are:

a) Where the accused goes into the witness box and repeats on oath, the contents of his
statement to the police, they become evidence for all purposes, admissible in law and can
be acted upon by the court against the co-accused Gbohor v State.

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b) Where the co-accused voluntarily adopts a confessional statement made by the accused
State v Gwangwan. The adoption can be done expressly or through conduct e.g., refusal
to deny the allegation when the confessional statement was brought to him either before or
at the trial. It may bind the co-defendant if he adopted it by word or conduct S29(4), Prof
Grange v FRN.
c) Where the confessional statement by the accused against a co-accused is corroborated by
other evidence, a court can rely on it Gbohor v State.

However-take note of S38(7) ACJL Kano which states that ruling on objection to the admissibility
of a confessional statement shall be recorded and shall be ruled upon while delivering judgement
or while delivering ruling in no case submission.

JUDGES’ RULES

• what is it?
• legal effect of compliance or otherwise with the judges’ rules?

Judges’ rules are administrative rules formulated by English judges in 1912

The whole essence of the rules is to guide policemen while taking statements from suspects. They
have no force of law R v Voison (1982) KB; State v Edekere & Ors (1981) 2 NCR 335;
Oladipopu v The State (2013) 1 NWLR (PT. 1334) 68

The Rules

1. Rule One – Questioning Anyone to Obtain Useful Information: if a police officer is trying
to discover whether a crime has been committed and the perpetrator of such a crime, he is entitled
to question anybody from whom he thinks that useful information may be obtained. This is so
whether or not the person concerned has been taken into custody so long as he has not been charged
with the offence or informed that he may be prosecuted for it.

2. Rule Two – Cautioning Suspect before Asking Questions Relating to the Offence: if the
police officer has evidence which gives reasonable grounds for believing that a person has
committed a crime, he shall caution that person or cause him to be cautioned before putting to him
any questions, relating to that offence as follows: “You are not obliged to say anything unless you
wish to do so but what you say may be put into writing and given in evidence.”

3. Rule Three –

(a) Record of Questioning & Statement: after being cautioned, when a person being questioned
makes a statement or elects to make a statement, a record of the time a place at which any of such
questioning or statement began and ended, and of the person(s) present shall be kept.
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(b) Cautioning where a Person may be prosecuted for or charged with an Offence: where a
person may be prosecuted for an offence or charged with an offence, he shall be cautioned as
follows: “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.”

The rule for caution before taking a statement from a suspect or an accused outside the court has
been extended to include posing for a photograph. Thus, in Ugama v Queen (1959) 4 FSC, 218,
the court held that where a police officer wants a suspect to pose for photograph which is likely to
be used in evidence against him, he must be informed of such and cautioned that he is not under
obligation to pose for the photograph.

(c) Prohibition of Questions Relating to the Offence after the Accused has been Charged or
Informed that he may be Prosecuted: questions relating to the offence should not be put to the
accused after he has been charged or informed that he may be prosecuted except for the purpose
of preventing or minimizing harm or loss to some other person or the public or for clearing up an
ambiguity in a previous answer or statement and should be stated in the following terms: “I wish
to put some questions to you about the offence with which you have been charged (or for an offence
for which you may be prosecuted). You are not obliged to answer any of these questions but if you
do, the questions and answers will be taken down in writing and be given in evidence.”

4. Rule Four –

(a) Contemporaneous Record of Questions and Answers: questions asked and answers given
relating to the offence must at the same time, be recorded in full and the record signed by that
person or, if he refuses, by the interrogating officer.

(b) Written Statements by Suspect: if a person says that he wants to make a statement, he shall
be told that it is intended to make a written record of what he says. He shall always be asked
whether he wishes to write down himself what he wants to say; if the suspect is to write the
statement himself, he shall be asked to write out and sign the statement below before writing what
he wants to say: “I make this statement of my own free will. I have been told that I need not say
anything unless I wish to do and that whatever I say may be given in evidence.”

A witness writing his own statement shall be allowed to do so on his own without any prompting
except that he may be told of matters that are material.

(c) Written Statements on Behalf of the Suspect: if the suspect says that he cannot write or that
he would like someone to write it for him, a police officer may offer to write the statement for him.
If he accepts the offer, the officer shall before starting ask the person making the statement to sign
or make his mark to the following: “I wish to make statement. I want someone to write down what
I say. I have been told that I need not say anything unless I wish to do and that whatever I say may
be given in evidence.”

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The police officer is to take down the exact words of the suspect without putting any questions
other than such as may be needed to make the statement coherent, intelligible and relevant to the
material matters. He shall not prompt him.

When the police officer has finished writing the statement, the person making it shall be asked to
read it and to make any corrections, alterations or addition he wishes. When he has finished reading
it, he shall be asked to write and sign the following: “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.”

(d) Refusal of Suspect to Sign or Read the Statement Written on His Behalf: If the suspect
who has made a statement refuses to write the above-mentioned certificate at the end of it or sign
it, the senior police officer present is to write on the statement and in the presence of the person
making it, what transpired. If the person making the statement cannot read or refuses to read it, the
officer who has written it for him shall read it over to him and ask him whether he would like to
alter or add anything and to put his signature or make his mark at the end. The police officer shall
then certify on the statement itself what he has done.

5. Rule Five – Written Statement made by Co-Suspect: if at any time after a person has been
charged with or informed that he may be prosecuted for an offence, a police officer wishes to bring
to the notice of that person any written statement made by another person who in respect of the
same offence has also been charged or informed that he may be prosecuted, he shall hand to that
person a true copy of that written statement, but nothing shall be said or done to invite any
comment. Provided that when the person charged is an illiterate the statement may be read over or
interpreted to him apart by some other person than a police man. Anything said to such reader by
the person charged when the statement is read shall not be admissible in evidence against him. If
the person says that he would like to make a statement or starts to say something in reply, he shall
at once be cautioned.

6. Rule Six – Compliance with Rules by Persons Other Police Officers Charged with Duty of
Investigating Offences: persons other than police officers charged with the duty of investigating
offences or charging offenders should endeavour to comply with these rules. Thus, every law
enforcement officer involved in criminal investigation (EFCC, ICPC, NAFDAC, Custom, etc.)
and who takes statements from suspects is enjoyed to observe the rules Dairo v FRN.

Effect of Non-Compliance with Rules

1. Judges’ Rules: Mere non observance of the Judges rules would not render a confession
inadmissible if the court is otherwise satisfied that the statement in question was voluntarily made
R v Voison. The rules have no force of law but its non-compliance may lead to rejection of the
statement by the court where the non-compliance affected the voluntary nature of the confession
State v Edekere (1981). However, where the non-compliance did not affect the voluntary nature
of the confession, it will be admissible. In the same vein, the court in Usman v State, held that
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breaches of the Judge’s rules do not render a document inadmissible. At best, such breaches might
only affect the weight the court attaches to the statement and certainly not its admissibility. Thus,
the admissibility of a confessional statement depends not on whether there was compliance with
the Judges’ rules but whether it was voluntarily made.

2. Confirmation before a Superior Police Officer: Just like the effect of non-compliance with
the Judges’ rules, where the statement is not taken before a superior police officer for confirmation
of its voluntariness, it does not ipso facto render the confession inadmissible Osisugo v State
(2016). Although the usual practice is to get the suspect or accused person to sign the self-
incriminating statement again after it has been read to him before a superior police officer, it has
been held that failure to re-sign would not affect its admissibility Oke v The Republic (1968).

ALIBI

Alibi means “elsewhere”, it is a defence where an accused person claimed to the police that he was
at a place other than the place where the prosecution alleges that he was at the time of the
commission of the offence charged thereby making it impossible for him to have committed or
participated in the commission of the offence Shehu v The State; Esene v The State.

Where an accused/defendant wants to rely on an alibi as a defence, he must raise the issue to the
police immediately after arrest or so soon thereafter. That is to say, he must inform the police at
the earliest opportunity of his whereabout at the time the offence was committed so as to give the
police the opportunity to investigate the alibi Ndidi v The State (2007); Osuagwu v The State.

The burden is on the accused person to give detailed evidence of the place he was, the person or
persons he was with, the time and possibly what he was doing there at the material time before the
police would be bound to investigate it Osuagwu v The State.

Where Alibi need not be Investigated

(a) Fixing the Accused at the Scene of the Crime: if the prosecution succeeds in fixing the
accused at the scene of the crime by adducing sufficient acceptable evidence, his alibi is thereby
logically and physically demolished Archibong v State (2006) All FWLR (Pt. 323) 1747 at 1785

(b) Vague Accounts: where the defence of alibi consists of vague accounts which are simply
placed before the courts as make-believe of plea of that defence which are completely devoid of
material facts worthy of investigation, there would be no need for investigation Saka v State.

(c) Lack of Sufficient Particulars: the plea of alibi will only be taken seriously where the accused
himself has properly raised the defence worthy of investigation by the police. Thus, there will be
no duty to investigate where the accused did not furnish the police with sufficient particulars
Mohammed v State.

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(d) Confession: where the accused person raises the plea of alibi but also made a voluntary
confession that he committed the crime, there will be no duty to investigate the alibi Ogoala v
State.

EFFECT:

Failure to investigate the alibi where it is properly raised is fatal to the case of the prosecution.
This is so because the defence succeeds where the trial court is satisfied that it is probable that the
accused was not at the scene of the crime on the day the crime was committed Esene v The State,
Shehu v The State; Almu v The State.

However, where the accused person is directly fixed at the scene of the crime his alibi will not
succeed. In other words, where there is direct, positive and unequivocal evidence which fixed the
accused at the scene of the crime at the time the offence was committed, his plea of alibi will not
stand. the prosecution is therefore relieved of the duty of calling any further evidence to disprove
the alibi raised Almu v The State. So also, where there is a valid confessional statement

IDENTIFICATION PARADE

Where the identity of the person who commits an offence is in doubt, the police must conduct an
investigation for the purpose of identifying the person who commits the offence.

Identification means a whole series of facts and circumstances by which a person may be
associated with the commission of the offence charged. It may consist of finger prints,
handwriting, palm prints, voice, photographs, recollection of the features of the culprit by a witness
who saw him in the commission of the offence in issue, identification parade, or combination of
two or more of the above.

When identification parade becomes relevant:

As a method of identifying the author of a crime, identification parade becomes relevant and
necessary only in a situation where the identity of the person responsible for the commission of an
offence is in doubt. This normally arises where the person who committed the offence was not
arrested at the scene of the crime and has not been known by the victim or any other witness
previously and the victim’s or witness’ encounter with the suspect was only in the course of the
commission of the offence. in such a situation, the identity of the person becomes a fact in issue
or relevant fact S7(C) EA, Olalekan v The State (2002); Osuagwu v The State (2013).

In deciding the credibility of the evidence of identity, the court takes the following factors
into consideration:

i. previous contact of the witness with the suspect and the circumstance in which the eye
witness saw the suspect.
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ii. the length of time the witness saw the suspect.

iii. the opportunity of close observation Lawalli (Danchina) v The State (2019)
iv. the lightening condition Thomas v The State (2017)3 scm p. 168 at 170.
v. whether the witness had informed the police at the earliest opportunity of the identity of
the suspect and had given the features of the accused observed by him at the time of their
encounter Emenegor v The State (2010) All F.W.L.R. (pt. 511) p. 884.

When identification parade not required:

Identification parade is not necessary:

i. where there is clear and uncontradicted eye witness account of the identity of the person
who allegedly committed the crime Ibrahim v State
ii. where a witness or the victim knew the suspect prior to the commission of the offence and
has recognised him at the time of the commission of the offence.
iii. where there are convincing, cogent and compelling evidence linking the suspect to the
offence Olalekan v The State.
iv. Where the circumstances of the case has sufficiently and irresistibly married the offender
to the crime and the crime scene Otti v State.

Identification parade rules and procedure.

1. It is usually conducted at the police station under the leadership of the officer in charge of
the station.
2. The suspect should be line up among at least 8 (If two or more suspects, 12 people including
the suspects) other persons/suspects of similar features such as height, weight, colour, age,
etc. and the victim or witness is asked to identify the suspect among them without aid.
3. The suspect shall not be allowed to be seen by the identifying witness prior to the parade
either physically, via photograph or video etc.
4. The witness must not be aided in the identification and should not be given an advance
knowledge of how the suspect look like before the parade Ikempson v The State (1989).
5. The suspect should be allowed to choose his position in the parade and should be allowed
to change position after each witness had left
6. The identifying witness will be instructed in audible voice to identify the suspect by
touching the person identified.
7. A photograph shall be taken when the parade is formed, when the suspect takes his position
in the line, and when the witness identifies a suspect by placing his hands on the shoulder
and when the suspect changes his position.
8. There should be no whispering and any communication between the parade and the witness
must be in audible voice.

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9. At the end of the parade suspect should be asked whether he is satisfied with the procedure
made and his reply should be recorded in the station diary.
10. Finally form D50 shall be completed in respect of each witness and the report of the parade
made in form D49 and entered in the station diary.

Handling of exhibits:

Exhibits refers to items seized by police officers in the course of a search or other criminal
investigations. They are items which the police intend to use at the trial of the suspect (when the
decision is finally taken to prosecute). S10(1) ACJA provides that a police officer making an arrest
or to whom a private person hands over a suspect, shall immediately record information about the
arrested suspect and an inventory of all items or properties recovered from the suspect which shall
be signed by the investigating police officer.

• Items seized in the cause of investigation and which are relevant for the effective
prosecution of the case against a suspect are called exhibits.
• They shall be kept with the exhibit keeper at the exhibit room designed at the station for
that purpose.
• The exhibit keeper shall mark, number and register the exhibit in the exhibit register for
ease of identification and avoiding the possibility of mixing it up with other exhibits that
are not connected with the case to which it relates.
• The exhibit shall be tendered in court through the exhibit keeper.

How Exhibits are kept

1. Exhibit List: before the police keep these exhibits, they make the exhibit list which usually
chronicles the items seized from a particular suspect of from different suspects in respect
of the same case.
2. Exhibit Register: at the station, the list of all exhibits in the custody of the police in a
particular station or division is then recorded in the exhibit register.
3. Exhibit Keeper: the exhibit keeper then keeps custody of all items in the custody of the
police. He transfers all exhibits to the exhibit room.
4. Exhibit Room: all items in relation to the cases handled are kept in the exhibit room where
only designated officers are allowed entry to avoid unauthorized interference. Where
exhibits kept in the exhibit room are to be tendered in court, they are to be taken out by the
appropriate officer who has proper custody of the exhibits.
5. Description Name and Number for Purposes of Identification: in keeping these
exhibits, they are properly described in the register and given a name or number for
purposes of identification.
6. Description by Real Name When Tendered in Court: at the end of the investigation, if
any of these items is to be tendered in court, it is described to the court not by the exhibit
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number given it by the police but by the exhibit’s real name and the court would if it admits
it, give it a new name e.g., Exhibit A1.
7. Laboratory or Forensic Test: where an item seized by the police requires going for
laboratory or forensic test, the item is usually packed in an exhibit pouch and then sent to
the laboratory under security.
8. Custody of Exhibits: Exhibits remain in police custody until the end of investigation or
case. However, S10(4) ACJA provides that a police officer may, upon request by the owner
or a party interested, release the property on bond pending the arraignment of the arrested
suspect before the court.

POLICE BAIL

• It is a temporary release of a suspect on bond or self-recognizance pending the conclusion

of investigation and or arraignment before a court of law.
• The power of the police to grant bail is derived from the provisions of S35(4) & (5) CFRN;
S61, 62 & 63 PA; SS. 30 & 31 ACJA
• Police has no power to release a suspect in capital offences and where an arrest was made
under a warrant of arrest except if the warrant is endorsed with an order for bail.

Procedure of application:

• No specific procedure is provided by the law

• In practice it is usually applied for through a formal letter addressed to the officer in charge
of the station where the suspect is detained by a person who is ready to stand as surety for
the suspect.
• In the letter the surety undertakes to produce the suspect at the time and place required.
• The letter may be written by a counsel or the surety.
• Counsel must not sign bail bond but may certify the surety as a fit and proper person to
stand as surety for the suspect.
• In some police stations, a bail may be applied for by filling a printed form prepared by the
police for that purpose.
• An oral application may also be entertained.
• Police may release on bail if satisfied that the proper investigation of the case will not be
prejudiced by the grant of the bail and no risk of the suspect escaping justice exists.

Remedies available where bail is refused

• application for judicial review such as for an order of habeas corpus-contained in the high
court rules

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• application for the enforcement of fundamental human rights under S46(1) CFRN and
FREP rules, 2009
• application for bail at the high court under S30 ACJA, 2015

• Application for Enforcement of Fundamental Rights

Fundamental Rights refer to any of the rights provided for in Chapter IV CFRN and includes any
of the rights stipulated in the African Charter on Human and Peoples Right (Ratification and
Enforcement) Act - Order 1 Rule 2 of Fundamental Rights (Enforcement Procedure) Rules
2009. The rules set out the practice and procedure for the litigation, regulation and prosecution of
all matters relating to the enforcements of fundamental rights of citizens by the courts, pursuant to
the provisions of chapter IV of the constitution.

Thus, where a suspect has been refused bail by the police, he can make an application via any
originating process for the enforcement of his fundamental right to personal liberty.

It is supported by:

i. a Statement setting out the name and description of the Applicant;

ii. Affidavit and written address.
• If Respondent wishes to oppose, he has five days to file his counter Affidavit and written
address.
• The Applicant has a right of Reply on points of law, if any.
• Note that there is no time limitation to file the suit.

The persons who can institute action for enforcement of fundamental rights can be: anyone acting
in his own interest; anyone acting on behalf of another person; anyone acting as a member of, or
in the interest of a group or class of persons; anyone acting in the public interest; or association
acting in the interest of its members or other individuals.

Another option available to an action person who has been refused bail by the Police is to approach
a Court to grant him bail.

• 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 suspect, 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. Release from unlawful imprisonment (bring the body) e.g., know
they have taken the person away but not sure where he is being imprisoned.

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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.

In Dele Giwa v. Inspector General of Police (Unreported Suit No FHC/12C/83), the court
awarded monetary compensation to the applicant who had been illegally detained by the police
and a public apology was also offered to the applicant. Also, in Minister of Internal Affairs v.
Shugaba (1982) 3 N.C.L.R. 915 at 928, the Supreme Court stated as follows: in cases involving
an infraction of fundamental rights of a citizen, the court ought to award such damages as would
serve as a deterrent against naked, arrogant, arbitrary and oppressive abuse of power. However,
such award must not be excessive.

• Application to the Magistrate

In Lagos State, the suspect may apply to a Magistrate Court for an order for his production in
Court. Note if suspect does not fulfil conditions of bail, he cannot just run to court to grant bail as
police will state that bail has been granted upon certain provisions.

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Sample Draft of Police Bail Application

C. O. AGBATA & CO
BARRISTERS AND SOLICITORS
NO 15 SHEVRON DRIVE
IKOYI, LAGOS STATE.
(coagbata@coagbata.com)
Our Ref: Your Ref:

15th August, 2022

The Divisional Police Officer,

Police Divisional Headquarters,
Lagos,
Lagos State.

Sir,

APPLICATION FOR BAIL

We are solicitors to Mrs. Johnson Our Client, of No.5 Johnson Street, Ikoyi, Lagos State who is
currently under arrest and detention at your station.

We apply for her bail pending the arraignment of our client. Our client pledges to appear at the
station anytime requested by you.

We recommend Mr Peters Dibia of No. 15 Broad Street Lagos Island, Lagos State, an in-law to
our client, as a surety for our client’s bail. He is available and willing to take the suspect on bail
and promises to fulfil all the bail conditions.

Thanks for the anticipated cooperation.

Yours faithfully,

………………………….

C. O. Agbata Esq.
(Principal Partner)
For: C.O. Agbata & Co.

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4.0 JURISDICTION AND VENUE OF CRIMINAL TRIALS

What is jurisdiction?

Jurisdiction is the authority of Court to decide matters that are litigated before it.

Jurisdiction is fundamental in any proceedings as it determines the competence and capability of

the Court to inquire into any case that is brought before it. The source of a court’s jurisdiction is
the Constitution or statutes. Every court is bound by the provisions of the Constitution and statutes
vesting jurisdiction in them Nyame v FRN, Madukolu v Nkemdilim

According to the SC in Madukolu v Nkemdilim, Nnakwe v The State, Onwudiwe v FRN, in

determining jurisdiction, three things are considered:

I. Whether the court is properly constituted with regards to numbers and qualifications of its
members;
II. Whether the subject matter of the case is within the competence of the court and that no
feature exists to prevent the court from exercising its power and decision over the case;
III. Whether the case before the court is initiated by due process of law upon the fulfilment of
any condition precedent to the exercise of its jurisdiction.

What determines the jurisdiction of court?

• Law/statute/constitution
• Parties
• Territory
• Offences
• Punishment

See: Ibori v FRN (2009) ALL FWLR (Pt 487) 159, Patrick Njovens v The State (1973).

SOURCES OF COURTS’ JURISDICTION

• Jurisdiction of each Court in Nigeria is provided for in the Constitution or in a statute.

Every Court is bound to it and can’t go outside the jurisdiction vested in it.
• It is neither deemed or inherent.

JURISDICTIONAL CHALLENGES IN CRIMINAL TRIALS

The question of jurisdiction arises in criminal proceedings at three different levels, these are:

i. Territorial jurisdiction;

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ii. Substantive jurisdiction (subject matter) and

iii. Jurisdiction over persons.

TERRITORIAL JURISDICTION: this relates to instances where a crime is partially or wholly

committed in one state but the offender is arrested in another state OR where an element or some
elements of a crime are committed in two different jurisdictions OR where the effect or result of
an offence commenced in one state occurs in another state.

In the above scenario, it is settled law that both states will have jurisdiction. In Osoba v Queen
(1961), the MD of a Nigerian bank in Lagos which sent a telegram to Australia and New Zealand
and had some fraudulent transactions carried out in London, the SC held that his trial in Lagos was
correct as the Lagos court had jurisdiction to try, the action haven commenced in Lagos through
the telegram that was sent from Lagos. Also, in Okoro v Attorney-General of Western Nigeria
(1965), the court held that where an offence occurs partly in one region and partly in another
region, the courts in both regions will have jurisdiction. See also Njovens v The State.

Also, in the case of Dariye v FRN [2015] the court held that where constituent elements of an
offence occur in different jurisdictions, the appropriate means to determine which court has
jurisdiction to try the accused is to identify what element of the offence in the proof occurred
where, any of the jurisdiction in which an element occurs has territorial jurisdiction to try the
accused.

Where the offence is a federal offence and triable by the FHC, the FHC is considered to be of
nationwide jurisdiction S19 (1) FHCA, therefore where such an offence is committed in Lagos
State, the defendant can be tried at the FHC in Maiduguri Abiola v FRN. What exist are judicial
divisions and not jurisdictions, thus FHC has nationwide jurisdiction.

However, in the case of Ibori v FRN [2009], (Delta to Kaduna) Hon. Justice Shuaibu. CA. The
CA held that to take the accused person from Delta State to Kaduna State for trial amounted to
forum shopping. Similar decision was reached by the SC in the recent 2021 case of Belgore v
FRN, it was held that since the offence was committed in Kwara State, Lagos was the wrong
judicial division to try the appellant. Whether this is a sound legal reasoning is subjective.
Although, the difference between the latter cases and the former is that the latter were wholly
committed in a forum different from the one wherein they were tried. See generally, SS 93 and 96
ACJA below, the equivalents are in SS58 and 60 ACJL Lagos and SS111 and 113 ACJL Kano.

NB: a party may apply to the CJ of FHC to transfer a matter from one division to another for
convenience purpose S19(2) FHCA.

VENUE OF CRIMINAL TRIAL

The venue of trial is very important S93 ACJA:

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S93(1) An offence shall ordinarily be inquired into and tried by a court within the local limits of
whose jurisdiction:

a) the offence was wholly or in part committed, or some act forming part of the offence was
done;
b) the consequence of the offence has ensued;
c) an offence was committed by reference to which the offence is denied; or
d) a person against whom, or property in respect of which, the offence was committed is
found, having been transported there by the suspect or by a person knowing of the offence.

(2) A criminal charge shall be filed and tried in the division where the alleged offence was
committed unless it can be shown that it is convenient to do otherwise for security reasons.

Offence at sea or outside of Nigeria

S94 ACJA: An offence committed at sea or outside the territory of Nigeria, may be tried or
inquired into at any place in Nigeria to which the suspect is first brought, or to which he may be
taken thereafter.

Offence committed on a journey

S95 ACJA: An offence committed while the suspect is in the course of performing a journey or
voyage may be tried or inquired into by a court in the State or division or district of whose
jurisdiction the suspect or the person against whom or the thing in respect of which the offence
was committed resides, is or passed in the course of that journey or voyage.

Offence commenced and completed in different States

S96 ACJA: Where an offence:

a) is commenced in a State and completed in another State, or

b) is completed in the FCT, Abuja after being commenced in another State,

the suspect may be dealt with, tried and punished as if the offence had been actually or wholly
committed in any of the States, or FCT, Abuja.

Every Court in Nigeria has power to try both civil and criminal matter except for Tribunal
established for specific purpose.

The jurisdiction of Court to entertain criminal matter may be loosely classified into two:

1. Court of General Criminal Jurisdiction

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2. Court of Special Criminal Jurisdiction

COURTS OF GENERAL CRIMINAL JURISDICTION IN THE SOUTHERN STATES

OF NIGERIA

CUSTOMARY COURT

• Customary courts can be found in all the Southern States of Nigeria;

• The Customary Court was formerly known as Native courts in the southern states which
can be found in the former Western Nigeria and Eastern Nigeria.
• No customary court in Lagos State because that was the then Federal Capital.
• It became customary court by virtue of the Customary Courts Law of Western Nigeria
1959 and Eastern Nigeria 1956.

Jurisdiction: S41 and Part2 to the 1st Schedule of the Customary Court Law of Lagos State,
2011.

Constituted by the Customary Court Law of the Lagos State 2011; for the trial of

i. offences against local authority bye-laws or S41 of the Law, Part 2 to the First Schedule
ii. where jurisdiction is expressly conferred upon it; S41 of the Law, Part 2 to the First
Schedule and
iii. contempt committed in the face of the Court S41 of the Law, Part 2 to the First Schedule.

The maximum punishment it can impose in Lagos State is 14 days imprisonment or N5k fine.
Section 41, 1st Schedule, Part 2, Customary Courts Law, Lagos 2011.

MAGISTRATES’ COURTS: Lagos, governed by Magistrate Court Law 2009

There are no grades of Magistrate court in Lagos, only one cadre. The hierarchical order has been
abolished S93(1) MCL. There is a uniform Magistrate court

They can try all offences except capital offence or offences with more than 14 years
imprisonment as punishment S29 MCL.

S29 MCL on Criminal Jurisdiction provides;

S29(1) Subject to any restrictions or conditions prescribed by jurisdiction of the Constitution or

by any other law, Magistrates shall have jurisdiction and powers in respect of the summary trial
and determination of criminal cases as set out in this Section.

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(2) A Magistrate shall have jurisdiction for the summary trial of offences and on the conviction of
any person accused of any such offence, may, subject to the other provisions of this Section,
impose the punishment provided by law for that offence.

(3) The fine which a Magistrate may impose in respect of any offence, shall not exceed the
maximum fine provided for that offence under the law.

(4) The term of imprisonment which a Magistrate may impose in respect of any offence, shall not
exceed the maximum term of imprisonment provided for that offence under the Law.

(5) A Magistrate shall not sentence a person to a prison term of more than fourteen (14) years.

(6) Notwithstanding any provision contained in this or any other Law, the criminal jurisdiction of
Magistrates’ Courts shall extend to the trial of offences contained in any of the following Laws –

a) Urban and Regional Planning and Development Law No. 9 of 2005;

b) Personal Income Tax Law Cap. P4 Laws of Lagos State of Nigeria 2003;
c) Environmental Sanitation Law Cap. E5 Laws of Lagos State of Nigeria 2003; and
d) Lagos State Lotteries Law 2004 Cap L89 Laws of Lagos State of Nigeria.

(7) The jurisdiction conferred on a Chief Magistrate in the ACJL 2007 and any other Law, shall
continue to apply to any Magistrate in the State after the commencement of this Law.

If a MC which possess the jurisdiction to try offence, impose a sentence more than the 14 years,
an appeal can be made against the sentence to the HC, on the ground that the MC has exceeded
the 14 years maximum. The relevant order to be sought in that instance would be an order to reduce
the sentence and not an order to quash the conviction. When the appeal is against conviction, it is
a different matter Emone v Police, Quartey v IGP.

The power to increase the jurisdiction of the magistrate court of Lagos state to impose punishment
exceeding that prescribed shall be exercised by the AG of Lagos State on recommendation of the
LSJSC S27 MCL, in other states, it is increased by a law passed by the State House of Assembly
(duly signed by the Governor) on the recommendation of the CJ.

Reconciliation in criminal cases

S37 MCL: In criminal cases, a Magistrate may encourage the settlement in an amicable way of
proceedings for common assault or for any other offence not amounting to felony and not
aggravated in degree, on terms of payment of compensation or other terms approved by him.

Prosecution of criminal cases

S65 MCL: Prosecution in criminal cases in MCs in the State shall be undertaken by:
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a) Law Officers; and

b) Police Officers and other law enforcement agents who are legal practitioners.

HIGH COURT

HC of a State is provided for under S270 CFRN. Its jurisdiction to try an offence is provided for
under S272 CFRN. The HC has the power to try both indictable and non-indictable offences. It
has power to try offences which carry capital punishment.

272(1) Subject to the provisions of section 251 and other provisions of this Constitution, the HC
of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence
or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue
or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture,
punishment or other liability in respect of an offence committed by any person.

The Jurisdiction of the HC is unlimited. Although in practice, there are offences which are usually
tried by the FHC, but there is no law which confers exclusive jurisdiction on the FHC, this is
because S251(1) CFRN only gives exclusive jurisdiction to the FHC in relation to civil cases and
not criminal cases. But see the NDLEA Act conferring FHC with exclusive on drug offences. In
FRN v Nwosu (2016), the SC held that the exclusivity of the FHC jurisdiction doesn’t extend to
criminal matters.

Jurisdiction of the HC: As contained in S272 (1) CFRN.

i. All indictable offences contained in an information;

ii. Any offence where jurisdiction is expressly conferred by the Constitution or any other law;
iii. Any non-indictable offence brought by any other mode;
iv. Criminal appeals from Magistrates’ Courts;
v. Federal offences within its jurisdiction
vi. Section II (1) (b), High Court Law of Lagos State.
vii. Any non-indictable offence brought by complaint: R v Waziri (1958); R. v Onubaka
(1959).

NB: The State High Courts have jurisdiction to hear and determine cases involving the
contravention of all federal offences S286(1)(a) CFRN? This position often taken by many, how
true is it? That section seems to be referring to FCT courts alone, this is clear when the first phrase
“Subject to the provisions of this constitution” and subsection 2 of the section. Also, it appears to
be referring to civil causes only.

NB: The High Court is a superior Court of record, as such, it is not limited in its jurisdiction to
impose punishment.

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COURTS OF GENERAL CRIMINAL JURISDICTION IN THE NORTHERN STATES.

AREA COURTS

Area Courts are constituted by Area Courts Edicts of 1967 of each of the former Six (now
nineteen) Northern states. There are four grades of Area Courts; namely:

i. Upper Area Court

ii. Area Court grade I
iii. Area Court Grade II
iv. Area Court Grade III (S17)

The Courts are established by warrant under the hand of the Chief Judge of the State, and every
Court thus established shall exercise jurisdiction as may be conferred by the warrant establishing
it (S3).

An Area Court shall consist either of an Area Court Judge sitting alone or an Area Court Judge
sitting with one or more members (S4).

The Court may also sit with Assessors approved by the Chief Judge (S5).

Area Courts have jurisdiction to try:

(a) Offences in the Penal Code shown in Column 7 of Appendix A to the Criminal Procedure
Code Law to be triable by Native Courts, and reference to Native Courts in the Appendix should
read Area Courts as follows:

i. Native Court Grade A and A Limited -Upper Area Court

ii. Native Court Grade B - Area Court Grade I
iii. Native Court Grade C - Area Court Grade II
iv. Native Court Grade D - Area Court Grade III

(b) Other offences of which jurisdiction is expressly conferred by the Governor of the State (S24).

Maximum punishment which Area Courts can impose are as follows:

i. Upper Area Court - Unlimited but cannot try homicide cases

ii. Area Court Grade I -5 years‟ imprisonment or ₦1,000.00 fine
iii. Area Court Grade II - 3 years‟ imprisonment or ₦600.00 fine
iv. Area Court Grade III - 9 months‟ imprisonment or ₦100.00 fine.

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Proceedings are according to substantial justice without undue regard to technicalities (S6). In
Alabi v C.O.P (1971) the court held that it was not necessary to frame a formal charge. However,
they are expected to comply with substantial justice S6 Area Court Edict. Jos Native Authority
v Allah Na Gani. (1968). See Akiga v. Tiv N.A. (1965), and Contrast Jos N.A. v Allah Na Gani.

Area Courts have jurisdiction to try:

i. A person whose parents were members of any tribe(s) indigenous to some parts of Africa
and their descendants;
ii. a person, one of whose parents was a member of a tribe indigenous to Africa;
iii. a person who consents to be tried by the Court.

But the Governor may direct that any person or class of persons may not be subject to the
jurisdiction of Area Court (S15).

Appeal lies from Area Courts Grade I, II and III or Upper Area Courts to the HC SI (a) FCT
Abuja (Appeal from Area Court) Act Cap 127 1990 Laws of the Federation.

Area Court Inspectors appointed under the Edict or Act have power either on application of any
person aggrieved or of its own to appeal to the High Court. (S50).

No appeal shall lie from the lower Court at the instance of any person at whose request a case has
been reported to the High Court or Sharia Courts.

Right of Appearance of Counsel in Area Court

By S390 CPC and S28 Area Court Edict, 1967, Legal Practitioners have no right of audience in
Area Courts. See however, S36(6)(c) CFRN as well as the case of Uzodima v The COP (1982)
1 N.C.R., 27, where it was held that S390 CPC and S28 Area Court Edicts contradicts S33(6)(C)
CFRN 1979 now S36(6)(C) CFRN.

In the case of Rgd Trustees of ECWA Church v Ijesha [1999] 13 NWLR (Pt. 635) 368 CA, the
court held that a Senior Advocate of Nigeria cannot appear before an inferior court, however in a
recent case of AG Lagos State v Persons Unknown, the court held that to hold that SAN cannot
appear before an inferior court will violate S36(6) CFRN. Although, the latter case is a MC
decision which cannot overrule Ijesha’s case, but it is a step in the right direction.

The decision of the AC can be appealed against at the HC.

SHARI’A COURT

Shari’a Penal Code is established in some Northern States of Nigeria.

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For instance, in Kano State, S3(1) of the Shari’a Courts Law makes provisions for two courts
which are

• The Shari’a court and

• Upper Shari’a court.

The first schedule to the law further provides for 7 grades of Shari’a Court as follows:

1. Upper Shari’a Court I = unlimited

2. Upper shari’a Court II = unlimited
3. Principal Shari’a Court I = 10yrs, all cases except Homicide, Adultery and Robbery
4. Principal Shari’a II = 7yrs, same as above except Riot.
5. Senior Shari’a = 6yrs, same as above
6. Higher Shari’a = 5yrs, same as above
7. Shari’a = 3yrs, same as above.

Jurisdiction of Sharia Court over persons

i. The accused person is a Muslim.

ii. The non-Muslim who submits to the jurisdiction of Sharia Court.
• Where the offence was jointly committed with a non-Muslim and he refuses to submit to
jurisdiction, he can be referred to the MC or other courts with jurisdiction to try the case.
• The Sharia Court is properly constituted where a single Alkali sits, however where it sits
as an appellate court, it shall be properly constituted by two Alkalis.
• The Alkali of a Sharia Court can impose Diya
• Lawyer can appear in Sharia Courts
• Applicable laws are: Penal Code, CPCL, Principles of Islamic Law and Procedure and laws
made by the Grand Khadis.

MAGISTRATES’ COURT (FCT)

• See: Magistrate Court (Increase of Jurisdiction of Magistrates) Order, 2014 made pursuant to
Criminal Procedure Act (Cap 495) Laws of FCT Nigeria, 2006.

Magistrates´ Court (F.C.T)

i. Chief Magistrate I, imprisonment for a term not exceeding 10 years or fine not exceeding
N50,000, or caning.
ii. Chief Magistrate II, imprisonment for a term not exceeding 8 years or fine not exceeding
N45,000 or caning.

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iii. Senior Magistrate I, imprisonment for a term not exceeding 6 years or fine not exceeding
N40,000, or caning.
iv. Senior Magistrate ll, imprisonment for a term not exceeding 4 years, or fine not exceeding
N35,000, or caning.
v. Magistrate I, imprisonment for a term not exceeding 2 years, or fine not exceeding
N30,000, or caning.
vi. Magistrate II, imprisonment for a term not exceeding 1 year, or fine not exceeding
N25,000, or caning.
vii. Magistrate III, imprisonment for a term not exceeding 6 months, or fine not exceeding
N20,000, or caning.

MAGISTRATE COURTS IN THE NORTH

In Kano State, the Criminal Procedure Code was amended and the provision relating to the number
of grades of Magistrates’ Courts and the punishment to be imposed by them were amended.
Consequently, there are now seven grades of Magistrate Courts in Kano State. See Section 4(1) &
16 Kano State Magistrate Court Edict 1986. For instance, Kano provides for 7 Grades as follows:

• Chief Magistrate Grade I = 14 YRS OR N300,000

• Chief Magistrate Grade II= 12YRS or N200,000
• Senior Magistrate Grade I = 10yrs or N100,000
• Senior Magistrate Grade II = 7yrs or N70,000
• Magistrate Court Grade I = 5yrs or N50,000
• Magistrate Court Grade II = 3yrs or N40,000

HOLDING CHARGE

This is a practice by some MC where the court hear the First Information Report of persons charged
with offences beyond its jurisdictions and remand the person in the prison to await proper trial.

This is usually the escape route taken by the police to avoid violating S35(4) and (5) CFRN.

This practice has over the years been frowned at by superior courts because of its attendant
complications and injustice and has been declared as unconstitutional, Lufadeju v COP, Ahmed
v COP, Bauchi State.

However, the legislature seems to have overruled the SC in the following provisions S293 ACJA,
S264 ACJL Lagos, 295 ACJL Kano, empower a Magistrate to make remand orders. For example,
a MC in the FCT is empowered to remand a suspect for a period of 14 days at the first instance
and a further period of 14 days where a probable cause is shown SS294-296 ACJA. This is

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however different from a holding charge. However, in Lagos, at first instance, it is 30 days and
where good cause is shown, a further one month.

Application for remand or other interlocutory proceedings.

S293 ACJA:

(1) A suspect arrested for an offence which a magistrate court has no jurisdiction to try shall, within
a reasonable time of arrest, be brought before a magistrate court for remand.

(2) An application for remand under this section shall be made ex parte and shall:

a) be made in the prescribed “Report and Request for Remand Form” as contained in Form
8, in the First Schedule to this Act; and
b) be verified on oath and contain reasons for the remand request.

S294 ACJA: A court may remand in prison custody:

(1) Where the Court, after examining the reason for the arrest and for the request for remand in
accordance with the provisions of section 293 of this Act, is satisfied that there is probable cause
to remand the suspect pending the receipt of a copy of the legal advice from the AGF and
arraignment of the suspect before the appropriate court, as the case may be, may remand the
suspect in custody.

(2) In considering whether “probable cause” has been established for the remand of a suspect
pursuant to subsection (1) of this section, the court may take into consideration the following:

a) the nature and seriousness of the alleged offence;

b) reasonable grounds to suspect that the suspect has been involved in the commission of the
alleged offence;
c) reasonable grounds for believing that the suspect may abscond or commit further offence
where he is not committed to custody; and
d) any other circumstance of the case that justifies the request for remand.

HIGH COURT IN THE NORTH S270 CFRN

• High Court in the North has jurisdiction to try offences:

• Criminal Appeals from the Magistrate Court S272(2) CFRN.
• Criminal Appeals from Upper Area Courts S272(2)
• Jurisdiction over Federal offences S286.

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APPELLATE COURTS OF CRIMINAL JURISDICTION (NORTH AND SOUTH)

The Court of Appeal

• SS237(1) and 240 CFRN Its jurisdiction is further provided in SS240-241 CFRN.
• Appeals from the HC, FHC, NIC and Court Martial.
• Appeals may lie from these courts as of right or with leave to the Court of Appeal S240
and S241 CFRN
• Who may appeal? S243 CFRN confers the right of appeal on the Accused person and the
Prosecutor. The complainant or victim cannot appeal Akinbiyi v Adelabu.

The Supreme Court of Nigeria

• S230(1) CFRN. This Court is a court of general appellate criminal jurisdiction, here, all
criminal matters that comes before this Court is by way of appeal. This is as provided in
S233(1) CFRN.
• Appeal to the Supreme Court can either be as of right or with leave S233(2) CFRN
• Who may appeal? The accused person or the prosecutor S233(5) CFRN

COURTS OF SPECIAL CRIMINAL JURISDICTION

JUVENILE COURTS

• This court was established under the Children and Young Persons Act, but was later
domesticated as Children and Young Persons Laws in various States.
• The courts were created to try juvenile offenders, children and young persons.

WHO IS A JUVENILE OFFENDER?

• Children (1-7) they are not criminally liable (S30 CC) and the JC has no jurisdiction over
them;
• Above 7 but less than 12: they are not criminally liable except where at the time of doing
the act they had the capacity of knowing that they ought not to do so State v Nwabueze (a
child of less than 12 charged with killing someone during fight, prosecution couldn’t prove
that he knew what he was doing as the test is subjective).
• Children (12-14) these children are liable for any act done by them which constitute an
offence S30 Criminal Code, S2 CYPL.
• Above the age of 14 but below 18 years are classified as young persons under the CYPL.
• The Court is constituted by one Magistrate with such other persons as the CJ may
determine.

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• The Juvenile Court has the jurisdiction to try children and young persons.

Exceptions:

i. where the child or young person commits an offence that carries capital punishment.
ii. Where the child or young person is charged jointly with an adult.

In the above cases the Juvenile court shall not have jurisdiction S6(2) CYPL

Determination of Age

S6(3) CYPL provides that the court should adjourn in order to determine the question of age of
the child or young person.

The courts can verify the age of an accused person in the following ways:

• direct evidence of the date of birth, by birth certificate.

• oral testimony of the parents or relations;
• Medical examination by a medical doctor in a government hospital or Medical Institution.
R v Oladimeji, his age was put at 18yrs by his parents but was rejected when a medical
examination put his age at 25ys old.

Characteristics of Juvenile Courts

1. Proceedings are not opened to the public S6(5) CYPL, S36(4) Constitution.
2. The identity of the child or young person shall not be published except where the law
permits it S6(6) CYPL
3. No child shall be ordered to be imprisoned S12(1) CYPL
4. No young person shall also be imprisoned except there is no other way to deal with him
S12(2)
5. Where the young person is imprisoned, he shall not be allowed to mix with adult prisoners.
S12(3) CYPL
6. A juvenile offender shall not be sentenced to death and death sentence cannot be
pronounced. Under S302 ACJL Lagos, the offender shall be detained at the pleasure of
the Governor. However, under ACJA, the offender shall be sentenced to life imprisonment
if found guilty of capital offence S405 ACJA.
7. The use of words like conviction and sentence is prohibited S17 CYPL
8. Avoiding interactions with adult offenders S417 CPL.

NB: The relevant age is the age at the commission of the offence and not age at conviction
Bangaza v State, Modupe v State
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THE COURT MARTIAL

S129 of the Armed Forces Act establish the Court Martial and provides for two types of Court
Martial which are:

i. the General Courts Martial

ii. the Special Courts Martial.

General Courts-Martial Composition:

i. President
ii. Not less than 4 members
iii. A Waiting Member
iv. A Liaison Officer
v. A Judge Advocate:

Special Courts-Martial Composition:

i. President
ii. Not less than two members
iii. A Waiting Member
iv. A Liaison Officer
v. A Judge Advocate

• In both cases, the president shall not be under the rank of Major or other corresponding rank
except where such an officer is not available. In that case an officer not below the rank of Captain
or corresponding rank shall be the president.

• Note however that a Courts-Martial cannot try an officer who is above the rank of the president
and the members S133(3) AFA, Okoro v Nigerian Army Council (Major), he was a major but
two members were captains and it was held a nullity.

RANKS

ARMY NAVY AIR FORCE

1. General Admiral of Fleet Marshal of the fleet

2. Lieutenant General Vice Admiral Air Marshal

3. Major General Rear Admiral Air Vice Marshal

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4. Brigadier General Navy Commodore Air Commodore

5. Colonel Navy Captain Group Captain

6. Lieutenant Colonel Commander Wing Commander

7. Major Lieutenant Commander Squadron Leader

8. Captain Lieutenant Flight Lieutenant

9. Lieutenant Sub-Lieutenant Flying Officer

10. Second Lieutenant Acting Sub-Lieutenant Pilot Officer

• A Judge Advocate: The officer to be appointed as Judge advocate must be a commissioned

officer, a Legal Practitioner who must have 3 years post call experience. The Judge advocate acts
as the prosecutor and legal adviser to the Court. Who is a commissioned officer? A second
lieutenant as provided in the third schedule to the AFA.

• Note that the members must be of 5 years in service. S133(2) AFA

• Note that the Judge Advocate is not a member of the Court for the purposes of quorum,
composition or voting. Nigerian Army v Dodo, it was held that the Judge Advocate is not a
member of the Courts-Martial.

• The Waiting member: he is on standby in case of any absent member. He is not a member of
the court and does not have a voting right.

• The Liaison Officer: He serves as a link between the Court and the outside world. He is not a
member and does not have a voting right.

• The Court Martial is a court that gives binding decisions and as such must observe the rules of
natural justice.

Jurisdiction of Court Martial

• The Jurisdiction is limited to persons who are subject to service laws S130 AFA i.e., members
of the Nigerian Army, Nigerian Navy and the Nigerian Air Force S.291 AFA

• The Court Martial has the jurisdiction to try both military and civil offences. Military offences
are offences created by the AFA. SS 45-103 e.g., Misconduct, Mutiny, Insubordination, Absence
from duty, malingering and drunkenness, offences relating to property etc.

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• S114(2) AFA defines Civil Offences as offences which are created by any law applicable in
Nigeria. SS104-113 AFA list out the civil offences that can be tried by the Court Martial e.g.,
Assault, Rape, Manslaughter, Murder, Robbery etc.

• S170 AFA provides that once jurisdiction is assumed by a regular court there is nothing in the
Act that can oust the jurisdiction of the regular court.

Who May Convene a Court Martial? S131 AFA

Special Courts-Martial:

i. The commanding officer of a battalion or a corresponding unit in the armed forces

ii. An officer for the time being acting in place of those officers

General Court Martial:

i. The President
ii. The Chief of Defence Staff
iii. Service Chiefs
iv. General Officer Commanding
v. A Brigade Commander or corresponding command.

The power of the above may be delegated to another officer as was held in Nigerian Air force v
Obiosa

• The decision of courts martial is by the majority of votes of members.

• Where there is equality of votes on findings, the accused shall be acquitted S140(2) AFA. Where
there is equality of votes on the sentence, the president shall have a second or casting vote S140(5)

• The decision of the court shall be announced in an open court and is subject to confirmation by
the convening authority.

• The scale of punishment which a court-martial may impose is contained in S118 AFA and they
include death sentence, imprisonment, dismissal with disgrace, reduction in rank, fine etc.

• A General Court Martial shall not impose death sentence if it consists of less than seven members
while a special Courts-Martial shall not impose a sentence which exceeds imprisonment for a term
of one year or of death if it consists of only two members S130 AFA.

• The decision of a Court Martial shall be signed and dated by the President of the court martial
and the Judge Advocate at the time of delivery. Failure to do so will render the decision void.

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Army Rules of Procedure, Rule 76 of 1972. Yakubu v Chief of Naval Staff; Erizea v Nigerian
Army.

• Appeal from CM goes to the CA and the appeal must be filed within 40 days of promulgating
its decisions. Appeal against sentence of death must be filed within 10 days. Either party can
appeal.

• A person who is no longer in service can be tried by Court Martial within 3 months of
retirement for an offence committed while in service S169(2) AFA, NAF v James.

• A Courts Martial is not a permanent court and it stands dissolved after discharging its mandate.

• ACJA not applicable. S2(2) ACJA.

• AGF/S cannot discontinue/enter a nolle in a CM S174(1)(a)(c) CFRN, S211(1)(a)(c) CFRN

THE CODE OF CONDUCT TRIBUNAL

• Established under the 1999 CFRN as a tribunal and under the Code of Conduct Tribunal Act.

• It is a tribunal of coordinate jurisdiction with the HC and the FHC;

• Has jurisdiction to try public officers for breaches of the Code of Conduct as set out in Paras 1-
14 part 1 fifth Schedule to the Const.

• It consists of Chairman and two members appointed by the President on the recommendation
of the National Judicial Council.

FEDERAL HIGH COURT

• Under the Constitution of 1979, the court was renamed Federal High Court.
• Under the 1999 Constitution, its jurisdictions are contained in S.251.
• The ACJA is the applicable procedural law
• The criminal jurisdiction of the Federal High court is territorial.

Criminal jurisdiction of the Federal High Court.

• S251(2) provides for treason, treasonable felony and allied offences.

• S251(3) also confers criminal jurisdiction on items listed under subsection 1 on the Federal
High Court.

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• Note that because of the omission of the word exclusive as used under S. 251(1) which
relates to civil actions, the Federal High Court cannot be said to have exclusive criminal
jurisdiction on those matters. Momodu v. State
• In Momodu v State, the court held that the Federal High Court has concurrent jurisdiction
with other courts under S.251(2)(3) of the Constitution.
• Appeals from the Federal High Court lies to the Court of Appeal.

THE NATIONAL INDUSTRIAL COURT

• See S254A - F of the 1999 Constitution (3rd Alteration Act).

• Its jurisdiction is provided for under S7 NIC Act, 2006. Which is arising out of
employment, labour and industrial relations/dispute.
• In 2010, the National Assembly amended the Constitution by inserting immediately after
the existing S254 a new subheading ‘‘cc’’ and S254A-254F. S.254C(1) comprising
paragraphs a-m.
• This enlarged the jurisdiction of the NIC to include matters relating to enforcement of
Chapter IV, child labour, sexual harassment in work places as well as matters relating to
or connected to the application of international labour standards.
• S.254C(5) provides that “the NIC shall have and exercise jurisdiction and powers in
criminal causes and matters arising from any causes or matter of which jurisdiction is
conferred on the NIC by this section or any other Act of the NASS or by any other law.”

Thus, the section confers criminal jurisdiction on the court in matters on which it has power
to exercise civil jurisdiction. However, the criminal jurisdiction may not be exclusive like
the civil jurisdiction.
• Appeals from NIC lies to the Court of Appeal directly. S.254C(6)
• For the purpose of exercising its jurisdiction, the provisions of the CC, PC, ACJA and the
EA shall apply. S.254F(2)
• The National Industrial Court is a court of coordinate jurisdiction with the Federal High
Court and the High Court of the State and that of the FCT.
• The argument on whether the CA is the final arbiter for appeals arising from the judgements
of the NIC, it only applies to civil matters. The CFRN provides in S243(4) that “without
prejudice to the provisions of sections 254C(5) of this Act, the decision of the CA in respect
of ant appeal arising from any civil jurisdiction of the NIC shall be final.”

CORONERS COURT

It is a court of inquest not trial. Inquiry into death and circumstances of death. It is not a real court
of law because it does not hold or conduct trials. It holds an inquest into the cause of death of a
person who died in public place.
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Where the person is already charged to court or about to be charged for the offence, coroner cannot
commence or continue any inquest into the death of the deceased until the determination of the
case Adepetu v State.

According to the Coroners’ System Law of Lagos State 2007, S53 (Interpretation):

• Coroner means a magistrate or any other person appointed under this law to inquire by way
of inquest into the cause of death.
• Inquest means a judicial inquiry to determine the cause of an unexpected natural or violent
death.

When inquest is to be held:

S15: the coroner shall hold an inquest whenever he is informed that the death of a deceased person
lying within his coroner district was as a result of death;

1. In a violent, unnatural or suspicious situation

2. In custody or shortly afterwards
3. Due to industrial disease, accident at work or industrial poisoning
4. Following medical intervention
5. During surgery or before recovery from anaesthesia
6. From a diagnostic procedure or therapeutic procedure regardless of time
7. Following a practice of non-conventional medicine or procedure or
8. Any material death occurring during or following pregnancy (up to six (6) weeks post-
partum) or which might be reasonably related to the pregnancy and
9. Any other reportable death where the coroner believes an inquest is desirable.

S18: inquest on all deaths occurring in custody

S20: coroner to be present at a place where execution by court order is taking place

S32: a coroner has all the powers of a magistrate

S34; coroner not bound by rules of evidence but if any witness fails to answer any question put to
him without lawful excuse, the coroner can fine him not more than N50k or punish him for
contempt.

• Inquest is subject to review by the HC

• A criminal charge need not necessarily follow an inquest
• Where the verdict of the coroner necessitates one, the AG may institute proceedings

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• Nolle prosequi is not applicable. That is, the AG cannot exercise his powers of nolle
prosequi in respect of proceedings in a Coroner’s court

INTERNATIONAL CRIMINAL COURT

• The Rome Statute under which the Court was created came into force on 1st July, 2002.
• The court is different from the International Court of Justice (ICJ)
• It is an independent Tribunal and not an arm of the United Nations Organisation. But the
U.N Security Council may refer cases to it
• The court has no Jurisdiction to try States but only natural persons
• The court is located at the Hague, the Netherlands but can sit anywhere for convenience.
• The ICC has jurisdiction to try crimes committed on the territory of member states or
committed by Nationals of member states.
• The prosecutor of ICC may intervene if the relevant state is unwilling to investigate and
prosecute offenders
• The ICC can issue warrant of arrest against such persons to be executed by Interpol and
the person will be brought before the court for prosecution. The ICC is not bound by
immunity clauses of member states and may arrest anyone accused of crime within its
jurisdiction.

Jurisdiction Over Offences: Article 5 of the Rome Statute confers jurisdiction in these:

i. Crime of Genocide Article 6

ii. Crimes against humanity Article 7
iii. War Crimes Article 8
iv. The crime of aggression Article 5(2)
v. The ICC does not have jurisdiction over Minors and Juveniles.

Jurisdiction to Impose Punishment: Article 77 prescribe the following punishments:

i. Imprisonment for a specified number of years which may not exceed 30 years;
ii. Life imprisonment when it is justified by the gravity of the offence;
iii. The court may also order fine;
iv. Forfeiture of proceeds, property and assets derived directly from the crime.
v. The ICC does not recognise death penalty.

How is criminal proceedings initiated?

i. By reference to the prosecutor by state party

ii. By the prosecutor after initiating investigation under- Article 15.

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5.0 INSTITUTION OF CRIMINAL PROCEEDINGS

WHO CAN INSTITUTE CRIMINAL PROCEEDINGS?

INTRODUCTION

• Since every offence committed by a person is an affront on the state, it is the state that has
the competence to institute criminal proceedings against such person. It was held in The
State v Squadron Leader S.I. Olatunji (2003) that where there is no competence to
institute criminal proceedings any trial in such proceedings is a nullity.
• Competence is so crucial in prosecution such that an indictment without jurisdiction will
be quashed, even after the prosecution has closed its case Okafor v The State (1976)

PERSONS THAT CAN COMMENCE CRIMINAL PROCEEDINGS IN NIGERIA

Persons that can institute criminal actions are:

1. The AG (Federal and State)

2. The Police
3. Private Persons
4. Private Legal Practitioners
5. Special Prosecutors

THE ATTORNEY-GENERAL

• The office of the AG is created under SS150(1) and 195(1) CFRN for the federation and
States respectively
• The AG is the chief law officer of the Federation and States respectively S174 and S211
CFRN
• He has the powers to

i. institute and undertake,

ii. take-over and continue, and
iii. discontinue any criminal proceeding against or in respect of any offender in their
respective jurisdictions in any court of law except a court-martial.

POWER TO INSTITUTE AND UNDERTAKE CRIMINAL PROCEEDINGS

• In Akpa v. State (2008), the SC held that the AG has unfettered discretion to prosecute
persons in respect of any offence.

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• Generally speaking, the powers of AGF is restricted to federal offences and the powers of
the AGS are restricted to state offences

• The AG of a State can, however, prosecute a federal offence in two circumstances:

› Where a Federal Law is intended to operate as a state law Emelogu v The State.
Also see S31 of Interpretation Act.
› By the instrumentality of a fiat, where the AGF delegates the authority to him (this
is usually in respect of a particular proceedings) S104(2) ACJA. Where there is no
such delegation, the AGS cannot prosecute, Anyebe v The State (1986).

POWER TO TAKE OVER AND CONTINUE CRIMINAL PROCEEDINGS

• The AG can take over and continue criminal proceedings instituted by any other authority
or person, including the Police, EFCC, ICPC, Customs, NDLEA, and private prosecutors
Amaefule v The State (1988) Nyame v. FRN (2007).
• The power of the AG to discontinue criminal proceedings, also known as nolle prosequi is
unarguably the most far-reaching and controversial of the powers,
• This power is exercised either orally by the AG in person or in writing through any of the
officers in his department S107 ACJA, S71 Lagos, S124 Kano, S174 (2) CFRN, S211 (2)
CFRN. It must be noted that none of the sections above stated the disparity of AG doing it
orally in person or through his officers in writing but that he may state it in court or inform
the court in writing.
• Although most texts and materials refer to them as nolle for S107 ACJA, S71 Lagos, S124
Kano, S174 (1)(C) CFRN, S211 (1)(C) CFRN and discontinuance for S108 ACJA, S73
Lagos, S125 Kano but I do not align with this line of reasoning. I think it ought to be nolle
or discontinuance and withdrawal. This is because the phrase “nolle prosequi” literally
means “unable to continue prosecution or discontinuance of prosecution”, also, the sections
used “discontinuance” in the first part and “withdrawal” in the second. Similarly, the
effects as stated in the law will reveal the intendment of the drafters. For instance, when
the prosecution can no longer continue, may be, due to insufficient evidence, it is a mere
discharge and the D can be prosecuted later without amounting to double jeopardy but if
the case is withdrawn which means that the prosecution having considered all the facts,
evidence and circumstances of the case decided to withdraw it, amounts to discharge and
acquittal and thus would amount to double jeopardy if the prosecution proceeded against
the D again on same case. This is also supported by S108(4) ACJA that mere discharge
does not mean that the D cannot be subsequently prosecuted.
• There is a difference between withdrawal and discontinuance/nolle prosequi, effect of the
latter is only discharge Clark v AG Lagos but the former may also amount to acquittal
depending on the stage of the trial, before D makes his defence (discharge), afterwards
(acquittal) or it can be acquittal by the discretion of the court before the D make his defence
S108 ACJA, S73 Lagos, S125 Kano.

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• The effect of entering a nolle prosequi is a mere discharge (not an acquittal) of the
defendant Clark v AG Lagos State.
• When there is no incumbent AG, no other officer in the AG’s department can enter nolle
prosequi- AG Kaduna v Hassan.
• Nolle cannot be entered on appeal, all the provisions of the law say it must be before
judgement S107 ACJA, S71 Lagos, S124 Kano, S174 (1)(C) CFRN, S211 (1)(C) CFRN
• The power of nolle is unfettered and cannot be questioned even by a court State v Ilori
(1983). The AG only need have regard to public interest, the interest of justice and the
need to prevent abuse of legal process S174(3) and S211(3) CFRN.

DELEGATION OF POWERS OF THE ATTORNEY-GENERAL

• SS174(2) and 211(2) CFRN are both to the effect that the foregoing powers of the AG can
be exercised by officers in his department.
• The AG, be it Federal or State can delegate his powers to any of the officers of his
department. Note S174 (2) or S211(2) CFRN and S104(2) ACJA, which provide that the
A G.'s power can be exercised by him in person or any officer of his department. Even in
the absence of an AG, these functions (with the exception of the powers of entry of nolle
prosequi), can be carried out by officers of his department State v Obasi; A.G of the
Federation v A.N.P.P & 2 Ors.
• The AG in delegating his powers is free to delegate all his powers to his subordinates
Ibrahim v The State (1986). In this case, SC although frowned at the attitude of an AG
delegating all his powers, still held that such delegation was valid. This is because under
S174(3) or 211(3) CFRN, which applies to the whole Section, the AG possesses an
unquestionable discretion. The Court however noted that if the AG had delegated his
powers to the Director of Public Prosecution (DPP) alone, it would be wrong for the D.P.P
to delegate same to his subordinates. The maxim is "delegatus non potest delegare"
meaning "a delegate cannot delegate"
• Where there is a blanket delegation by the AG, a State Counsel can validly sign the
information in his name, without naming the AG as the ultimate authority Ibrahim v The
State.
• The AG may also delegate his powers to the Police, Customs, EFCC and other agencies
with prosecutorial powers Saraki v FRN (2016); Comptroller of Prisons v Adekanye.
• The power of delegation must be made expressly AG Kaduna State v Hassan, Ibrahim
v State.
• The power to institute criminal proceedings can be exercised even where there is no
incumbent AG Saraki v FRN.
• However, the power to discontinue a criminal proceeding can only be exercised where
there is an incumbent AG, AG Kaduna v Hassan.

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NOLLE PROSEQUI/POWER OF DISCONTINUANCE AND WITHDRAWAL

• The power to enter a nolle (discontinuance) should be distinguished from the power of a
prosecutor to withdraw from criminal proceedings under S107 ACJA, S71 Lagos, S124
Kano, S174 (1)(C) CFRN, S211 (1)(C) CFRN and S108 ACJA, S73 Lagos, S125 Kano
• The major differences are as follows:
• First, the effect of a nolle (discontinuance) is a discharge while the effect of a withdrawal
is a discharge or an acquittal depending on the stage of the trial. By S108(2) ACJA, S73(1)
Lagos, S125 (2) Kano, if the withdrawal is before D enters his defence, it is discharge but
if after, it is acquittal. However, the laws further provide in S108(3) ACJA, S73(1) Lagos,
S125(3) Kano that the court may by its discretion still acquit the D when a case is
withdrawn even before he enters his defence and shall enter reasons in the record for
granting same.
• Second, entering a nolle (discontinuance) is at the discretion of the AG while withdrawing
proceedings is subject to the consent of the court. This is only applicable in Lagos by S73
ACJL but no mention of consent in ACJA S108 and ACLJ Kano S125.
• Third, the court may award costs against a prosecutor who discontinues proceedings but
lacks such power in respect of a nolle.
• Fourth, in Clark v AG Lagos the Court, under S75 CPL, not only has to consent to the
withdrawal, the prosecutor is enjoined to adduce reasons for such withdrawal. Compare
with S108 ACJA. In exercising the power of nolle, the AG may be influenced by whatever
reason, however frivolous. Consequently, the SC held in The State v Ilori that S191(3) of
the 1979 Constitution now SS 174 (3) and 211 (3) respectively which provides that the
AG "shall have regards to public interest, the interest of justice and the need to prevent
abuse of legal process" is merely declaratory and not directory. If the AG therefore
disregards the provision(s), the only sanction against him is removal by his appointor;
adverse criticism by the public or instituting a civil claim against the AG, but the plaintiff
must be able to show the damages suffered.

THE POWER OF THE AG TO ENTER NOLLE

• This is a very important power given to the AG by law.

• The AG is a law unto himself in taking decisions on matters under SS174 and 211 CFRN.
He cannot be questioned, nor his action reviewed State v Ilori (1983) 2 S.C. 155.
• It is only the AG that can orally enter a nolle to discontinue a case.
• The AG need not give reason to discontinue the case
• He does not require the consent of the court to enter a nolle.
• His only limitation is that he must enter such nolle any time before judgment.
• The implication of this is that nolle cannot be entered on appeal.
• In exercising his powers under SS174(3) and 211(3) CFRN, the AG is required to have
regard to public interest, the interest of justice, and the need to prevent the abuse of legal
process.
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• The above provision was tested in State v Ilori, and the SC held that the provision imports
a discretion but certainly did not create a condition.

THE POLICE

• The power of the Police to institute criminal proceedings is statutorily provided in S66 of
the Police Act 2020, it provides as follows:

S66(1) Subject to the provisions of S174 and 211 of the Constitution and section 106 of
the ACJA which relates to the powers of the AGF and of a State to institute, take over and
continue or discontinue criminal proceedings against any person before any court of law in
Nigeria, a police officer who is a legal practitioner, may prosecute in person before any
court whether or not the information or complaint is laid in his name.

NB: the police officer must be a LP. This is an innovation of the 2020 Police Act, hitherto,
it was any police officer. But see subsection 2 below on a police officer prosecuting an
offence which a non-legal practitioner would ordinarily prosecute.

(2) A police officer may, subject to the provisions of the relevant criminal procedure laws
in force at the Federal or State level, prosecute before the courts those offences which non-
qualified legal practitioners can prosecute.

(3) There shall be assigned to every Police Division at least one police officer

(a) who is qualified to practise as legal practitioner in accordance with the Legal
Practitioners Act; and

(b) whose responsibility is to promote human rights compliance by officers of the

Division.

• The power is made subject to the power of the AG

• The law is settled that the Police have power to institute criminal proceedings in all courts
in Nigeria. Olusemo v COP (1998), Osahon v FRN (2006).
• The ACJL Lagos in S78 and ACJL Kano in S123 of their provisions provided for the
power of the police to prosecute matters in MC. No such power was mentioned by the same
ACJL of the power of the police to prosecute at the HC. Thus, this may justify the
conclusion by our lecturers that before a police officer can prosecute at a superior court of
record, he must be a legal practitioner especially because the Police Act is made subject to
ACJA.

• However as stated above, the two cases of Olusemo v COP, and Osahon v FRN have laid
to rest the controversy whether or not the police can prosecute beyond the Magistrates
court.
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PRIVATE PERSONS

• The various CPLs recognise the power of private persons to institute criminal proceedings
SS77(1)(b)(ii) & 254 ACJL, SS 109(e) and 381(d) ACJA, S126(e) ACJL Kano.
• The only limitation to the right of a private person to initiate criminal proceedings is where
the law or enactment specifically provides for the class of persons that can initiate such
action.
• By S383 ACJA, it’d seem that the private person reference under this Act must be a legal
practitioner as it provides for information by private person but went ahead to refer to the
person as a legal practitioner. But note that Lagos didn’t use the term in S254 ACJL.
• Before an information signed by a private person is received by the Registrar of a court,
certain conditions as provided for in SS 383 and 384 ACJA must be fulfilled:
 First is that there must be an endorsement by the AG stating that he has seen the
information and declines to prosecute at the public instance, the offence(s)
contained in the information.
 Second, the private person shall enter into a recognisance in the sum as may be
fixed by the court, together with a surety in the like sum or pay costs as the court
may order. Lagos put the sum at ₦50k in S254 ACJL.
• Where an AG refuses to prosecute and refuses to endorse, Mandamus will lie against the
A.G. to secure his performance of the duty A.G. Anambra State v Nwobodo (1992),
Fawehinmi v Akilu. The authority of a private person to file information regarding
indictable offence(s) in Lagos State is now limited to the offence of perjury, He may
however charge an offender with non-indictable offence in accordance with the law. See
Atake v Afejuku (1996).
• Note however, that the exercise of this power is subject to the powers of the AG to take
over and discontinue as contained in SS 174 and 211 CFRN.

OTHER STATUTORY LIMITATIONS TO THE RIGHT OF A PRIVATE PERSON TO

PROSECUTE

• Proceedings for an offence of official corruption against a judicial officer- the information
must be signed by the AG.
• For the offence of sedition, the private person must seek the consent of the AG.
• Adultery and related offences under SS 387, 388 & 389 PC only the persons specified
therein can institute the action.

SPECIAL PROSECUTORS

• The statute creating an offence may designate a particular person or officer as the
appropriate person to initiate proceedings.
• Statutes that create special prosecutors include:
• The EFCC (Establishment) Act See Ibrahim Shehu Shema v FRN (2018)
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• Customs and Excise Management Act See Customs & Excise v Barau (1982)
• The special prosecutor need not be a lawyer E.g., S66 of the Factories Act vests the power
of criminal proceedings in respect of factory offences on the Inspector of Factories.

PRIVATE LEGAL PRACTITIONERS AUTHORISED BY THE AG

• By S381(C) ACJA, an information may be filed by a private legal practitioner authorized

by the AGF. Where a legal practitioner is so engaged, he is said to enjoy the fiat of the AG.
See FRN v Adewunmi (2007), COP v Tobi (2009); George v FRN, DPP v Akozor
(1962), Nafiu Rabiu v The State (1980); Gwonto v The State (1983).

LIMITATION OF TIME TO COMMENCE CRIMINAL PROCEEDINGS

• As a general rule, there is no time limit within which to commence criminal proceedings
against a person.
• Certain exceptions are, however, provided by statutes and include:
• Treason and Treasonable Felonies: within 2 years of the commission of the offence
(Note however, that there is no limitation of time with respect to the offence of conspiracy)
S43 CC to commit the offence, the exception only applies to actual commission of the
offence.
• Sedition: within 6 months of the commission of the offence S52(1) CC
• Proceedings under the Customs and Excise Management Act (CEMA): within 7 years
of the commission of the offence S176(3) CEMA
• Private complaint under S92 ACJA, private complaint must be made within 6 years
• Sexual offences provided for in SS218 and 221 CC must be commenced within 2 months
of the commission of the offence, for a girl under 13, or between 13 and 16 or an idiot or
imbecile.
• Service men (after retirement): 3 months S169(1) and (2) Armed Forces Act.
Subsection (1) No person shall be tried by a court-martial for an offence (other than
mutiny, failure to suppress mutiny or desertion) unless the trial is begun within three
years after the commission of the offence, regard not being had to any period of time during
which that person was a prisoner of war or was illegally absent. However, subsection 2:
this is for service men who have left the service, after 3 months of the time that they left,
the court martial will no longer have jurisdiction over them, NAF v James.
• Conspiracy: conspiracy to commit any of the above offences doesn’t fall within the
exception R v Simmonds.
• Public Officers Protection Act: please note that this act doesn’t apply to criminal
proceedings. That is S2(a) thereof that an action against a public officer must be within 3
months. This was held in Yabugbe v COP where the D contended that its over three
months but the SC held per Akpata JSC that it couldn’t have been the intention of the state
to shield public officers from crimes.

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MODES OF INSTITUTING CRIMINAL PROCEEDINGS IN NIGERIA

MAGISTRATES’ COURTS UNDER THE ACJL Lagos

• By bringing a person arrested with or without a warrant before the MC upon a charge
contained in a charge sheet specifying the name and occupation of the person charged,
the charge against him and the date and place where the offence is alleged to have been
committed S78 ACJL.

MAGISTRATES’ COURTS UNDER THE ACJA and ACJL Kano

• By a charge or a complaint (Kano is complaint alone no charge) whether or not on oath

or upon receiving a FIR S109(a) ACJA, S126(a) ACJL Kano.
• By bringing a person arrested without a warrant upon a charge contained in a charge sheet
S110(1)(a) ACJA, S127(1)(a) ACJL Kano, albeit Kano used the word complaint but
referred to charge subsequently and every other word is the same.
• By laying a First Information Report before a Magistrate S110(1)(b) ACJA, S127(1)(b)
ACJL Kano.
• By laying a complaint before a Magistrate S110(1)(c) ACJA, S127(1)(c) ACJL Kano.
• NB: It is debateable whether MC Kano is really charge because, the ACJL clearly
says that it is by complaint whether or not on oath or by FIR. But for the purpose of
bar finals, stick with Charge by FIR, that’s the lecturers’ position.

HIGH COURTS UNDER THE ACJL Lagos

• By information of the AG of the state S77(1)(b)(i) ACJL

• By information, filed by a private prosecutor S77(1)(b)(ii) ACJL
• By information filed in the court after the accused person has been summarily committed
for perjury S77(1)(b)(iii) ACJL
• Summarily in respect of contempt S77(1)(b)(iv) ACJL

HIGH COURTS UNDER THE ACJA and ACJL Kano

• In the HC, by information of the AGF S109(b) ACJA.

• By charge in Kano, S126(b) ACJL Kano.
• By information or charge (charge alone in Kano) filed in the court after the defendant has
been summarily committed for perjury S109(c) ACJA, S126(c) ACJL Kano.
• By information or charge (charge alone in Kano) filed in the court by any other prosecuting
authority S109(d) ACJA, S126(d) ACJL Kano.
• By information or charge (charge alone in Kano) filed by a private prosecutor S109(e)
ACJA, S126(e) ACJL Kano.
• NB: KANO IS BY CHARGE BUT FCT IS BY INFORMATION OR CHARGE.
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FEDERAL HIGH COURT

• Actions can be commenced before the FHC by way of a charge; This is inspite of the
provision of S109 of ACJA which has a general provision, S33 FHC Act has a specific
provision on commencement of action at FHC, FRN v Obinna Ezerioha (2016).

However, here is the express provision of the FHCA, S33(1) Subject to the provisions
of this section, criminal proceedings before the Court shall be conducted substantially
in accordance with the provisions of the CPA, and the provisions of that Act shall,
with such modifications as may be necessary to bring it into conformity with the
provisions of this Act, have effect in respect of all matters falling within the
jurisdiction of the Court. (2) Notwithstanding the generality of subsection (1) of this
section all criminal causes or matters before the Court shall be tried summarily.

From to the above provision, it may seem really difficult to agree with the submission
above that commencing a criminal action at FHC should be by way of charge because the
provision in subsection (2) provides that all criminal causes shall be tried summarily and
subsection (1) clearly made the procedure subject to CPA which has now been repealed
by ACJA. It would seem like ACJA should take precedence. The argument is that all causes
tried summarily are commenced by way of charge, thus, FHC should not be an exception.

S494 ACJA provides that “summary trial” means any trial by a Magistrate or a trial by a
HC commenced without filing an information;

Thus, going by the above provision, it is apparent that FHCA should take precedent
because, first, it is a specific provision as against ACJA that is a general provision. Second,
it is a general principle of law that where there are conflicting general and specific
provisions, it is the latter that takes precedence and third, FHCA S33(2) itself, starts by
stating “notwithstanding anything in subsection (1)”, thus it has technically knocked out
the overall effect of subsection (1).

NATIONAL INDUSTRIAL COURT

• S109ACJA is applicable.
• Therefore, by information where the AG is initiating the proceedings
• Where any other person or authority is prosecuting, a charge or information would be filed.

APPLICATION FOR CONSENT TO FILE AN INFORMATION/LEAVE TO PREFER A

CHARGE – NO LONGER APPLICABLE UNDER ACJA AND ACJL LAGOS AND KANO

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EFFECT OF THE FHC AND FCT HIGH COURT PRACTICE DIRECTIONS

• The FHC practice directions relate to the offences of terrorism, trafficking in persons, rape,
corruption and money laundering.
• The FCT HC Practice Directions relate to applications for leave to prefer a criminal charge
by the EFCC, ICPC or any other agency charged with the prosecution of criminal offences.
• Under the HC of the FCT Practice Directions, in all applications seeking leave to prefer a
criminal charge, a court may not hear the application until the accused person is brought
before it. It also requires, in addition to other provisions, that such application must be
accompanied by an affidavit stating that all investigations have been concluded and that
there is a prima facie case against the defendant.
• The FHC Practice Direction makes similar provisions regarding presence of the defendant
and supporting affidavit. However, while the FCT HC Practice Direction relates to
application for leave before preferring a charge, the FHC Practice Direction relates to
procedure to be adopted in proceedings before the court during hearing.
• These Practice Directions whether of the FHC or FCT HC are made to ensure speedy
dispensation of justice.
• Where there is a conflict between the Practice Directions and the Rules of Courts, the Rules
of Courts will prevail over Practice Directions.
• Some of the Practice Directions made by these courts bothers on existing law. For instance,
the provision that an accused person must be present in court on the arraignment has been
taken care of by the case of Adeoye v The State [1999].

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6.0 CHARGES
WHAT IS A CHARGE?

“Charge” means the statement of offence or statement of offences with which a defendant is
charged in a trial whether by way of summary trial or trial by way of information before a court
SS 371 ACJL Lagos & 494 ACJA, 2 ACJL Kano. This is in compliance with S36(6)(b) CFRN
to unambiguously inform the D in a language that he understands of the offence with which he is
charged. Charge can be either the allegation or the charge sheet, it all depends.

PERSONS WHO CAN DRAFT CHARGES

• Generally, the various laws and Act did not specifically provide for who would draft a
charge or prepare a charge sheet but because of the general principle that it is signed by the
drafter, and since the laws and Act provide for those who would sign, the general
assumption will as well be adopted here.
• Under the ACJA (Abuja) and Kano, “the charge sheets shall be signed by any of the
persons mentioned in section 106 of this Act” S110(1)(a) ACJA, S127(1)(a) ACJL Kano
and those mentioned in S106 are;
(a) the AGF or a Law Officer in his Ministry or Department;
(b) a legal practitioner authorised by the AGF; or
(c) a LP authorized to prosecute by this Act or any other Act of the NAss.
› If it was a FIR, it “shall be signed by the police officer in charge of the case”
S110(1)(b) ACJA, S127(1)(b) ACJL Kano
› They didn’t state who to sign a complaint but going by Form No 3 in the First
Schedule ACJA on the draft of complaints, it should be signed by the Magistrate.
• In Lagos, “the charge sheet shall be signed by a Law Officer or the Police Officer in charge
of the case” S78(2) ACJL Lagos.
• In the magistrate court in the south, it is the police officer or law officer who can draft a
charge State v Okpegboro.
• In the HC, by virtue of SS 109 ACJA, 77 ACJL Lagos, 126 ACJL Kano, it is those
mentioned as having the power to prefer the charges therein who can either draft or frank
the charges.
• Note the other officers per force possess the power to draft the charge.
• Note that a law officer can sign his name on an Information without indicating the AG as
the ultimate authority, where the AG has delegated his powers to the officers of his
department Ibrahim v The State; and The State v Okpegboro.

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PROSECUTORIAL AUTHORITY

• In the magistrate courts in any state of the federation, including Abuja, the
prosecutorial authority is COMMISSIONER OF POLICE.
• High courts: in other states of the federation apart from Lagos, it is STATE. In Lagos state,
it is THE STATE OF LAGOS by virtue of S249 ACJL Lagos.
• In the FHC, it is the FEDERAL REPUBLIC OF NIGERIA.
• In the High Court of FCT, it is also the FEDERAL REPUBLIC OF NIGERIA.
• Importantly in SHC, when it has to do with federal offences or offences created by the Act
of NAss, the prosecutorial authority is the FEDERAL REPUBLIC OF NIGERIA.

APPLICATION OF CHARGE AND INFORMATION

Court Charge Parties Reference Body Charge Franking

Sheet No Paragraphs
MC Charge by COP/ Charge No 3: Intro, Count Presiding
FCT FIR Charge and Magistrate
Defendant Direction.
MC Charge COP/ Charge No 1: Count Count Police
Lagos Officer/Law
Defendant Officer
MC Charge by COP/ Charge No 3: Intro, Charge Presiding
Kano FIR Charge and Magistrate
Defendant Direction.
FHC Charge FRN/ Charge No 1: Count Count AGF, his law
because of officer or a legal
S33 of the Defendant practitioner
FHCA authorised by
taking law to prosecute
precedent
over S109
ACJA
NIC Info when FRN/ Charge No 2:Statement Count AGF, his law
AGF but of Offence officer or a legal
info/charge Defendant and practitioner
in any Particulars authorised by
other case of Offence law to prosecute
because
S109

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ACJA
applies
(details
here is for
info)
HC Info when FRN/ Charge No 2:Statement Count AGF, his law
FCT AGF but of Offence officer or a legal
info/charge Defendant and practitioner
in any Particulars authorised by
other case of Offence law to prosecute
HC Info The State of Charge No 2:Statement Count AGS, his law
Lagos Lagos (can be of Offence officer or a legal
FRN in and practitioner
federal Particulars authorised by
offences at of Offence law to prosecute
state level)/
Defendant

HC Charge The State (can Charge No 1: Charge Charge AGS, his law
Kano be FRN in officer or a legal
federal practitioner
offences at authorised by
state level)/ law to prosecute
Defendant

FORMS AND CONTENTS OF A CHARGE

The components of a charge are as follows:

1. Heading
2. Reference Number
3. Parties
4. Preamble (Where applicable)
5. Main Body
6. Date
7. Subscription

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1. HEADING: Every charge or info must be headed in the name of the court where the charge or
info is to be preferred, e.g.,

IN THE HIGH COURT OF LAGOS STATE

IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS

OR

IN THE MAGISTRATES’ COURT OF LAGOS STATE

IN THE LAGOS MAGISTERIAL DISTRICT
HOLDEN AT LAGOS

OR

IN THE FEDERAL HIGH COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS

OR

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS

2. REFERENCE NUMBER: Reference number must come immediately after the heading on the
right-hand corner of the charge or information sheet. It must also appear in capital letters as in
the heading, e.g. In Kano, there is no ref number provided in the Appendix B to the ACJL but in
practice charge number instead of case number is now deployed. It is also advisable to use charge
number especially since majority of the campuses were told to use same. Also, because ACJL
Kano is like a domestication of ACJA and it is charge number under ACJA.

IN THE HIGH COURT OF LAGOS STATE

IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
CHARGE NO: LG/HC/2022/1591

OR

IN THE MAGISTRATES’ COURT OF LAGOS STATE

IN THE LAGOS MAGISTERIAL DISTRICT
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HOLDEN AT LAGOS
CHARGE NO: LG/HC/2022/1591

3. Parties: The parties must be stated immediately after the Reference Number and these are the
prosecutorial authority and the accused/defendant as the case may be.

The prosecutorial authority in State offences in the HC is “The State” except Lagos State where
it is “The State of Lagos” S249 ACJL. In the MC whether in the South or the North it is
“Commissioner of Police”.

The Prosecutorial authority for Federal offences will depend on who is instituting the
proceedings:

1. If on behalf of the AGF it shall be in the name of “The Federal Republic of Nigeria”.
S268(3) ACJA.
2. If it is instituted upon delegation by AGF either by a private practitioner or a Commission
or Agency, it shall be in the name of “The Federal Republic of Nigeria”. S268 (3) ACJA.
3. Where it is instituted by a police officer, it shall be in the name of “Inspector General of
Police” or “Commissioner of Police” as the case may be S268 (2) ACJA.

Parties are stated in all states except Lagos thus:

BETWEEN:
THE STATE…………………………COMPLAINANT
AND
BUKA SUKA……………………………DEFENDANT

But in Lagos, it is:

BETWEEN:
THE STATE OF LAGOS…………………………COMPLAINANT
AND
BUKA SUKA……………………………DEFENDANT

4. PREAMBLE: This is only required when drafting an information to be preferred in the HC

(South) or the FCT HC or NIC. It comes immediately after the parties and must be in the lower
case i.e., small letters. It is written thus:

At the sessions of the High Court of Lagos State holden at Lagos on the Sixth day of
February, 2022, the Court is informed by the Attorney General of the State on behalf of the
State that Buka Suka is charged with the following offences:
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If at the FCT by way of information, it will be:

At the sessions of the High Court of the Federal Capital Territory, Abuja holden at Abuja
on the Sixth day of February, 2022, the Court is informed by the Attorney General of the
Federation on behalf of the Federation that Buka Suka is charged with the following
offences:

5. Main Body This refers to the head of offence. This comes immediately after the preamble where
information is being drafted. Where the charge is not an information, the offences being charged
(body) must come immediately after parties.

Content:

1. Name (start with that)

2. Date
3. Address
4. Division/District
5. Offence commission
6. Description of offence with elements
7. Name of victim
8. Section of the law (mostly punishment section depending on the provision)

The offences must be charged one after the other except where any of the rules of drafting allows
that any two offences may be charged together on the same charge sheet. Every head of offence in
an information must be in two paragraphs i.e.,

“Statement of Offence”
Content
• Name of offence
• Section of the law (definition)

“Particulars of Offence”
Content
1. Name (no that you)
2. Date
3. Address
4. Division/District
5. Commission of offence
6. Description of offence
7. Name of victim

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6. Date: Every charge or information must be dated. This comes immediately after the last offence
has been drafted. Note that the ACJA allow the date to be placed before the preamble. See S377
ACJA & Form 11 of the 1st Schedule to ACJA.

In practice however, it comes after the last offence has been drafted and it is written thus:

Dated this……day of ……, 2022

7. Signature: Every charge or information must be signed by the framer of the charge. It comes
immediately after the date and should appear at the bottom right-hand corner of the charge or
information, e.g.

…………………………….
Chris Ozo Agbata Esq.
(Senior State Counsel)
For: Attorney General
Lagos State Ministry of Justice

SECTIONS TO USE FOR CHARGE

• The section which prescribes punishment for the offence being charged must be referred
to in the count bearing the offence on the charge sheet. E.g., in charging the offence of
perjury S118 CC must be used instead of S117 CC which only defines the offence.
• Where an offence is defined in one section and punishment for the offence is prescribed in
that same section, then the charge sheet must state that section only.
• Where an offence is defined in one section and penalty is prescribed in another section,
penalty section should be used. However, by S194(3) ACJA, the law and the punishment
section must be stated in the charge. E.g., Contrary to section…and punishable under
section…
• Where a section of the law defines the offence but punishment for that particular offence
and other offences are jointly stated in a separate section, the charge sheet shall state both
the definition section and penalty section.
• An offence with categories with different punishments, punishment section is used. E.g.,
different types of stealing.

• Every head of offence is referred to as “Count” or “charge” on a charge or information to

be used in the Magistrate or Federal Courts and High Court.
• There may be more than one charge or counts in a charge sheet:
o Count 1,2,3 in Lagos, FCT and Federal Courts
o Charge 1,2,3 in Kano

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o See however 2nd and 3rd Schedule to ACJL; 2nd and 3rd Schedule to ACJA;
Appendix B ACJL Kano with just numbered paragraphs.

• A charge to be used in the HC (South), FCT HC and NIC is referred to as “Information”

while it is referred to as “Charge” in the MC (South), FHC, MC or HC (Kano).

• Every count on an information must have two paragraphs i.e., “Statement of offence” and
“Particulars of Offence” whereas every head of offence is referred to as “Charge” in the
MC and HC (Kano) but it is “count” in MC (Lagos) and FHC, it must be in a single
paragraph containing both the statement and particulars of offence.

• A charge to be used in a MC in Lagos may be drafted by the Police whereas only a

Magistrate can draft a Charge to be preferred in a MC in the North.

• The use of preamble is only necessary when drafting an Information to be preferred in the
High Court in Lagos, it is not required for any other form of charge.

• When drafting information, start with the “name” e.g., at HC Lagos but when it is charge,
start with “that” e.g., “That you, Chris Ozo Agbata”

RULES OF DRAFTING CHARGES

The rules guiding the drafting of charges are four and they are:

1. The rule against misjoinder of offenders.

2. The Rule against misjoinder of offences.
3. The Rule against duplicity and
4. The rule against ambiguity.

1. RULE AGAINST MISJOINDER OF OFFENDERS: This rule applies to the charge sheet
and not to the count.

The General Rule: Every offender must be charged and tried separately for the offence committed
even when the offence is committed jointly with others. Every charge sheet or each count is to
have only one defendant.

S208 of ACJA on “Defendants who may be charged jointly” provides:

The following defendants may be charged and tried together; defendant accused of:

a) the same offence committed in the course of the same transaction;

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b) an offence and another of abetting or being accessory to or attempting to commit the same
offence;
c) more than one offence of the same or similar character, committed by them jointly;
d) different offences committed in the course of the same transaction;
e) offences which include theft, extortion or criminal misappropriation and another accused
of receiving or retaining or assisting in the disposal or concealment of property, the
possession of which has been transferred by offences committed by the first named
persons, or of abetment of or attempting to commit any of the last named offences; and
f) dishonestly receiving stolen property or assisting in concealment of stolen property, or in
respect of stolen property the possession of which has been transferred by one offence, and
another 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.

Exceptions:

1. When two or more persons jointly commit an offence, all the offenders may be charged and
tried together on the same charge sheet for that same offence S208 ACJA; S151(a) ACJL Lagos;
S215 ACJL Kano; Okojie v. C.O.P.

Example: If ‘A’ and ‘B’ jointly stole Miss Ann’s Handbag, ‘A’ and ‘B’ may be charged together
on the same charge sheet and under the same count for the offence of stealing.

2. When two or more persons are accused of different offences which were committed in the course
of same transaction, all the accused persons may be charged and tried together on the same charge
sheet though, each person will be charged for the offence he committed under a distinct count in
the same charge sheet S208 ACJA; S151(a) ACJL Lagos; S215 ACJL Kano; Haruna v The
State.

Example: ‘A’ and ‘B’ jointly agreed to beat up ‘C’. If in the course of the beating by both ‘A’ and
‘B’, ‘A’ removed N5,000 from ‘C’s pocket without the knowledge of ‘B’, both ‘A’ and ‘B’ will
be charged together under the same count for the offence of assault as well as battery while ‘A’
alone will be charged under a different count on the same charge sheet for the offence of stealing.

The test of what amounts to ‘course of the same transaction as laid down in Haruna v The State
is: “whether two or more acts constitute the ‘same transaction’ depends on proximity of time and
place, continuity of action and community of purpose or design relative to the particular acts…thus
in order to constitute same transaction, all the acts from the very beginning should be either in
contemplation or should form the component parts of a whole”.

Note however that no matter how proximate the commission of two or more offences may be, it
must be shown that the offences are connected by a string which is continuity of action.

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3. When a person is accused of committing an offence and another of abetting or been accessory
to or attempting to commit such offence, the accused persons may be charged and tried together
on the same charge sheet but under different counts S151 (b) ACJL Lagos; S208 (b) ACJA;
215(b) ACJL Kano, Patrick Njovens & Ors v The State.

Example: ‘A’ being aware of ‘B’s escape from a lawful custody provides ‘B’ with shelter to shield
‘B’ from arrest, both ‘A’ and ‘B’ may be charged together for the offences of screening and escape
from lawful custody respectively on the same charge sheet but under different counts.

4. When a person is accused of any offence of theft, criminal misappropriation, criminal breach of
trust and another of receiving or retaining or assisting in the disposal or concealment of the subject
matter of such offence, the accused persons may be charged and tried together on the same charge
sheet but different counts. See s. 151 (b) ACJL Lagos; s. 208 (e) & (f) ACJA; s 215(e) ACJL
Kano, Patrick Njovens v. The State.

Example: ‘A’ stole a HP laptop and ‘B’ bought the laptop from ‘A’ at a price lower than the
market value of the laptop knowing or having reasons to know that the laptop was stolen. Both ‘A’
and ‘B’ may be charged and tried together on the same charge sheet for the offences of stealing
and receiving stolen property respectively on the same charge sheet but under different counts.

Note that for the offenders to be charged together in the same charge sheet, the offences must be
related to each other. This means that the commission of one of the offences depends on the other
e.g., stealing and receiving stolen property Patrick Njoven’s case.

Note also that the Court has the power to order separate trial, on application by defence, the
exceptions notwithstanding Mailayi & another v The State (1968).

2. THE RULE AGAINST MISJOINDER OF OFFENCES. This rule applies to the charge sheet
and not to the count.

General Rule: Where a person is accused of several offences he must be charged and tried
separately for each of the offences otherwise the charge will be bad for misjoinder of offences. For
instance, see Ss. 152 ACJL Lagos, 209 ACJA & 216 Kano.

S209 of ACJA on “Separate charges for distinct offences.” provides:

For every distinct offence with which a defendant is accused, there shall be a separate charge and
every charge shall be tried separately except in the following circumstances:

a) any three offences committed by a defendant within 12 months whether or not they are of
the same or similar character or whether or not they are in respect of the same person or
persons;
b) any number of the same type of offence committed by a defendant;
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c) any number of offences committed by a defendant in the course of the same transaction
having regard to the proximity of the time and place, continuity of action and community
of purpose; or
d) cases mentioned in sections 210 to 215 of this Act.

Exceptions: 1. Where a person is accused of committing several offences within a period of 12

months, any three of such offences may be selected, charged and tried together on the same charge
sheet but different counts notwithstanding that the offences were not committed in the course of
same transaction. See Ss. 153(i) ACJL Lagos; s. 209 (a) ACJA, s 216(a) ACJL Kano.

Example: ‘A’ stole some money belonging to ‘B’ in March 2018; assaulted ‘X’ in April 2018;
raped ‘Y’ in May 2018; killed ‘Z’ in August 2018; led a riot in September 2018; and drove while
drunk in February 2019, ‘A’ may be charged and tried for any three of the offences on the same
charge sheet., NB: it is 12 months not one calendar year, thus, the acts may cover 2 calendar years.

2. Where a person is accused of committing several offences which are so connected as to form
part of same transaction any number of the offences may be charged and tried together on the same
charge sheet (different counts) S153 (iii) ACJL Lagos; S209 (c) ACJA; S216(c) ACJL Kano.

Note that this rule does not limit the framer of the charge under this rule to any particular number
of offences. All that he is required to do is to have regard to:
i. proximity of time and place;
ii. Continuity of action; and
iii. Community of purpose
See Haruna v The Sate, Onubaka v Queen, S153 (iii) ACJL Lagos; S209 (c) ACJA.

Example: ‘A’ entered ‘B’s apartment in his absence and removed the key to a Toyota Land Cruiser
belonging to ‘B’s employer, ‘A’ used the car to rob ‘C’ and while trying to facilitate his escape he
knocked down ‘D’ who died instantly. ‘A’ may be charged and tried on a single charge sheet for
the offences of house breaking, trespass to property, robbery and manslaughter.

3. Where a person is alleged to have committed offences which comprise same elements but are
constituted under different laws, the person may be charged and tried for all the offences on the
same charge sheet under the different laws in which the offences have been constituted S212
ACJA, S219 – 222 ACJL Kano. No corresponding provision in the ACJL Lagos.

Example: ‘A’, a taxi driver drove dangerously on the Lagos-Ibadan Expressway and had an
accident whereupon one of the passengers died. ‘A’ may be charged for the offence of causing
death by dangerous driving under the Federal Highway Act and manslaughter under the Criminal
Code on the same charge sheet.
Note that the accused can only be convicted and sentenced for one of the offences Elliot v COP
[1960] WRNLR 182
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4. Where there is doubt as to which of the several offences created by law may be established by
the existence of a single act or series of acts or omissions of which a person has been alleged, the
person may be charged and tried on a single charge for all or any one or more of such offences or
any or all the offences in the alternative. See s. 214 ACJA, 221 ACJL Kano; Azie v. The State
[1973] 3 SC 149 (No similar provision in ACJL)

Example: ‘Y’ is accused of series of acts which may amount to sexual harassment, indecent assault
and rape. If the prosecutor is in doubt as to which of the three offences the series of acts could
establish, ‘Y’ may be charged and tried on a single charge sheet for all the offences in the
alternative.

3. RULE AGAINST DUPLICITY

General rule: Every distinct offence with which a person is charged must be contained in a distinct
count or charge. See s. 152 ACJL Lagos; s. 209 ACJA; s. 216 ACJL Kano. This rule applies to
each count of offence and not to the charge sheet. This means that each count in a charge sheet
must disclose one offence only.

Exceptions
1. Statutory exception: Some statutes permit joining of two or more offences in a single count. S.
193 ACJA provides that charges may be as in the forms set out in the 2nd schedule of this Act and
may be modified in such respect as may be necessary to adapt them to the circumstances of each
case. See Ss. 146 ACJL Lagos & 200 ACJL Kano for similar provisions.

Example: If ‘A’ is accused of burglary and stealing in Lagos State, the two offences may be
contained in a single count and the charge will not be bad for duplicity. It may be drafted thus:

COUNT 1:

STATEMENT OF OFFENCE: Burglary contrary to s. 411 and stealing contrary to s. 390 (4)(b)
of the Criminal Laws of Lagos State.

PARTICULARS OF OFFENCE: Stone Face (m) on the 4th of April 2019 at No. 3 Alomo road,
Ikoyi in the Lagos Judicial Division broke and entered the residential apartment of Mr. Ojo at 8pm
with the intent to steal and stole a Gucci wristwatch belonging to Mr. Ojo.

In Willie John v The State (1967) NMLR 101, the SC held that there was nothing wrong in
charging the offences of housebreaking and stealing in different counts but that the usual practice
is to join the two offences in one count in accordance with statutory forms. In so doing, the drafter
has not offended the rule against duplicity. The SC in Humbe v State (1974) upheld the use of
prescribed forms.

2. General deficiency of money over a period of time: Where a person is accused of breach of
trust or criminal misappropriation of money or fraudulent falsification of accounts or fraudulent
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conversion at different times over a period of time he may be charged in a single count or charge
for all the offences without stating the particular date when each of the acts constituting the offence
was carried out The Queen v. Ugwu [1962].

S197 of ACJA on “Criminal Breach of Trust” provides that “where a defendant is charged with
criminal breach of trust or fraudulent appropriation of property, it is sufficient to specify the gross
sum in respect of which the offence is alleged to have been committed and the dates between which
the offence is alleged to have been committed without specifying particular items or exact dates,
and the charge so framed shall be deemed to be a charge of a single offence.”

Note:
i. The offence must have been committed against same person.
ii. The date (time frame) within which the offence was committed must be stated in the count.
iii. The gross sum in respect of which the offence is alleged to have been committed must also
be stated in the count.

Example: While auditing the account of ‘X’ company it was discovered that various sums of
money totalling N20,000,000 were taken at different times by ‘A’ being the manager of ‘X’
company. ‘A’ may be charged in a single count for all the acts constituting the offence without
stating the specific dates when what amount was taken, e.g.,

‘A’ between May 2015 and March 2016 at ‘X’ Company Limited located at No. 4 Akin Adesola
Street, Victoria Island, Lagos in the Lagos Judicial Division while entrusted with money belonging
to ‘X’ Company Limited fraudulently converted for your use various sum of money totalling N20,
000,000.

Note: This exception applies to only misappropriation of money. It does not apply to other kinds
of misappropriation such as goods. In R v Aniemeke (1961) All NLR 43, it was held that the
offences alleged, being misappropriation of goods (59 boxes of cigarettes) as distinct from money,
ought to have been contained in separate counts. The charge was held to be bad for duplicity. See
also Domingo v. R. (1963) 1 All NLR 81, R. v. Nwankwo (1962) All N. L.R. 64.

3. Identical offences committed in the same transaction: Where it is alleged that a person
committed identical offences in the course of same transaction, all the identical offences may be
charged in a single count and it will not be bad for duplicity. This exception is a creation of case
law. See Police v. Oyewusi [1952] WRNLR 281.

Example: ‘A’ corruptly demands money from each of three persons at the same time for the
purpose of attending to their common interest, ‘A’ may be charged in a single count for all the acts
of corruptly demanding money from each of the three persons.

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4. Overt acts in an offence of treason or treasonable felony: Overt acts in an offence of treason
or treasonable felony may be charged together in a single count. It is also permissible to include
in a count all the other acts allegedly done by an accused person as manifestation of his intention
to commit treason or treasonable felony R v Omisade [1964] 1 All NLR 233. Overt act means
outward act, however innocent in itself, done in furtherance of a conspiracy, treason, or criminal
attempt. An overt act is usually a required element of these crimes R v Omisade.

Effect of Duplicity

A charge that is bad for duplicity does not necessarily invalidate the charge or the trial except it
has occasioned a miscarriage of justice Awobotu v. The State (1976) 5 S.C. 49.

4. RULE AGAINST AMBIGUITY AND UNCERTAINTY

This rule states that where any of the requirements of a valid charge or information is violated such
charge or information is bad for ambiguity or uncertainty.

Example: A charge that fails to give an accused person a clear description of who is being charged
or the precise law under which the accused is to be punished or a clear description of the offence
that is being charged is said to offend the rule against ambiguity Okeke v IGP.

This rule postulates that a charge must be clear enough as to give the defendant adequate notice of
the offence with which he is charged. Consequently, the rule attaches itself more particularly on
the Count or, each of the Counts contained in the charge sheet or Information. A good charge free
from ambiguity will reflect, in this order, the following:
(a) The name of the defendant;
(b) Date of commission of the offence
(c) Place of commission of the offence
(d) The description of the offence by the name giving to the offence by the law creating it
where the law defines the offence; or so much of the particulars of the offence as will give
the defendant sufficient notice of the charge against him; or person against whom the name
of the thing in respect of which the offence was committed.
(e) The section of the law under which the defendant will be punished and the law itself SS201
and 203(1) ACJL, Kano; 147 and 148 ACJL, Lagos; 194 and 378 ACJA, Garba v
State (1999).

Effect of Non-Compliance:
As the whole essence of this rule is to give a defendant notice of the charge against him some
errors on the part of the prosecutor will not essentially invalidate the charge or lead the court to set
aside any conviction based on the charge Duru v. The Police (1960), Ogbomor v. The State
(1985); Ogbodu v. The State (1987), Sugh v. The State (1988).

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In the following cases however, the court held that the errors in the charges were fundamental
Clement Isong v Attorney General of the Federation; Okeke v The Police (1965).

Generally, the court does not regard any omission or errors in the charge as material except the
defendant was in fact misled by such error or omission SS 227 and 229 ACJL, Kano; S220
ACJA; S158 ACJL, Lagos.

In Obakpolor v The State (1991), the SC held that objection to a defective charge should be made
immediately after the charge is read over and explained to defendant because pleading to such a
charge is a submission to jurisdiction, if the defect does not deprive the court of its jurisdiction.

4.0 EFFECT OF BREACH OF THE RULES OF DRAFTING

The general rule is that no error in stating the offence or the particulars required to be stated in the
charge and no to state the offence or those particulars shall be regarded at any stage of the case as
material unless the accused person was in fact misled by such error or omission Ss. 158 ACJL
Lagos, 220 ACJA, 227 ACJL Kano.

S220 of ACJA on “Effect of Error” provides that “an error in stating the offence or the particulars
required to be stated in a charge or an omission to state the offence or those particulars, or any
duplicity, mis-joinder or non-joinder of the particulars of the offence shall not be regarded at any
stage of the case as material unless the defendant was in fact misled by the error or omission.”

A charge that is in breach of the rules of drafting is a defective charge. A conviction that is founded
on a defective charge may be quashed on appeal unless it is shown that the defect is not material
enough to occasion a miscarriage of justice or to mislead the accused person.

Example, a charge that is framed on a non-existent law is defective and any conviction based on
such charge will be quashed on appeal; a conviction that is based on a charge that is bad for
duplicity may be quashed on appeal; a charge that offends the rule against misjoinder of offences
may be quashed on appeal only if the defendant is confused by the defect.

It is not in all cases where the charge is held to be bad for duplicity that the conviction will be
quashed or set aside. In Okeke v Police the appellate court agreed with defence counsel’s
submission that the charge was bad for duplicity but held that the defect did not occasion
miscarriage of justice.

But in R v Chima, the accused was alleged to have killed her twin babies and was convicted on a
single count of murder. It was held on appeal that the charge was bad for duplicity.

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SAMPLE DRAFT OF CHARGES

(1) MAGISTRATE COURT IN KANO (SAME WITH FCT MC EXCEPT FOR USING
COUNT INSTEAD OF CHARGE IN THE BODY)

IN THE MAGISTRATE COURT OF KANO STATE

IN THE KANO MAGISTERIAL DISTRICT
HOLDEN AT KANO
CHARGE NO: KN/MC/2022/1591

BETWEEN:
COMMISIONER OF POLICE …………………………… COMPLAINANT
AND
BUKA SUKA ………………………………………………... DEFENDANT

I, CHRIS OZO AGBATA, Chief Magistrate Grade 1, do hereby charge you Buka Suka, as follows:

CHARGE ONE:

That you, Buka Suka on or about the 20th day of March, 2022 at 10 Kano Street, Kano in the Kano
Magisterial District committed culpable homicide not punishable with death by causing the death
of Mallam Isa and thereby committed an offence punishable under section 224 of the Penal Code.

And I hereby direct that you be tried by this court on the said charge.

Dated this 22nd day of March, 2022.

---------------------------
CHRIS OZO AGBATA
Chief Magistrate Grade 1

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(2) MAGISTRATE COURT IN LAGOS

IN THE MAGISTRATE COURT OF LAGOS STATE

IN THE LAGOS MAGISTERIAL DISTRICT
HOLDEN AT LAGOS
CHARGE NO: LG/MC/2022/1591

BETWEEN:
COMMISIONER OF POLICE ………………………………. COMPLAINANT
AND
BUKA SUKA …………………………………………………… DEFENDANT

COUNT ONE:

That you, Buka Suka on or about the 20th day of March, 2022 at 10 Lagos Street, Lagos in the
Lagos Magisterial District committed culpable homicide not punishable with death by causing the
death of Mallam Isa and thereby committed an offence punishable under section 224 of the
Criminal Code.

Dated this 22nd day of March, 2022.

---------------------------
Inspector Chris Ozo Agbata
Police Officer

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(3) HIGH COURT IN KANO

IN THE HIGH COURT OF KANO STATE

IN THE KANO JUDICIAL DIVISION
HOLDEN AT KANO
CHARGE NO: KN/HC/2022/1591

BETWEEN:
THE STATE ………………………………………………….. COMPLAINANT
AND
BUKA SUKA …………………………………………………. DEFENDANT

CHARGE ONE:

That you, Buka Suka on or about the 20th day of March, 2022 at 10 Kano Street, Kano in the Kano
Magisterial District committed culpable homicide not punishable with death by causing the death
of Mallam Isa and thereby committed an offence punishable under section 224 of the Penal Code.

Dated this 7th day of February, 2022.

---------------------------
Chris Ozo Agbata, Esq.,
Principal State counsel,
For the Attorney General,
Kano State

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(4) HIGH COURT IN LAGOS AND FCT ABUJA

IN THE HIGH COURT OF LAGOS STATE

IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
CHARGE NO: LG/HC/2022/1591

BETWEEN:
THE STATE OF LAGOS ……………………………………………. COMPLAINANT
AND
BUKA SUKA ………………………………………………………….. DEFENDANT

At the sessions of the High Court of Lagos State holden at Lagos on the 6th day of February, 2022,
the Court is informed by the Attorney General of the State on behalf of the State that Buka Suka
is charged with the following offences:

COUNT ONE:

STATEMENT OF OFFENCE

Murder, contrary to section 319 of the Criminal Code and punishable under section 390 of the
Criminal Code.

PARTICULARS OF OFFENCE

Buka Suka on or about the 17th day of May, 2019 at No. 10 Bola Street, Lagos in the Lagos
Judicial Division of Lagos State murdered Mallam Isa.

Dated this 7th day of February, 2022.

---------------------------
Chris Ozo Agbata, Esq.,
Principal State counsel,
For the Honourable Attorney General of Lagos State

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(5) FEDERAL HIGH COURT AND NATIONAL INDUSTRIAL COURT

IN THE FEDERAL HIGH COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
CHARGE NO: LG/FC/2022/1591
BETWEEN:
FEDERAL REPUBLIC OF NIGERIA ………………………………… COMPLAINANT
AND
BUKA SUKA ……………………………………………………………... DEFENDANT

COUNT ONE:

That you, Buka Suka on or about the 20th day of March, 2022 at 10 Lagos Street, Lagos in the
Lagos Magisterial District committed culpable homicide not punishable with death by causing the
death of Mallam Isa and thereby committed an offence punishable under section 224 of the Penal
Code.

Dated this 7th day of February, 2022.

---------------------------
Chris Ozo Agbata, Esq.,
Senior Law Officer,
For the chairman, NDLEA.

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DEFECTIVE CHARGE
• A defective charge is a charge that suffers from noncompliance with rules of drafting
charges or for failure to adhere to both substantive and procedural law.
• a defective charge may rob the court of jurisdiction to try the charge, for instance a charge
that cites a non-existent law as the law under which the defendant may be tried S36(12)
CFRN, Faith Okafor v Gov of Lagos (2016), Aoko v Fagbemi.

WHEN TO OBJECT TO A DEFECTIVE CHARGE

• An objection to a defective charge ought to be raised at the commencement of the trial,
especially before the defendant enters his plea S221 ACJA; Adio v The State (1986).
• The onus lies on the defendant himself or his counsel to timeously raise an objection to a
defective charge once noticed on the charge sheet.
• Failure to so raise an objection on time, the defendant is deemed to have waived his right
Obakpolor v The State (1991); Alintah v FRN (2008).

HOW TO OBJECT TO A DEFECTIVE CHARGE

• The defendant can file a motion on notice supported by affidavit stating the grounds
of the objection Obakpolor v State.
• The defendant can file a preliminary objection stating his grounds of objection.
• The defendant can file summons supported by affidavit before the Federal High Court
FRN v Adewumi (2007).

GROUNDS FOR OBJECTING TO DEFECTIVE CHARGE

i. Charge contains an offence not known to law.
ii. Where leave is required but has not been obtained.
iii. The charge violates fundamental rules of drafting charges.
iv. If the defendant has once been acquitted or convicted of the same offence.
v. If the defendant is immune from criminal prosecution in respect of the particular charge on
account of legal incapacity, e.g., tender age.
vi. If the proof of evidence and witness statement discloses no link of the charge to the
defendant Abai v The State (2016) LPELR 40127.

EFFECT OF CONVICTION ON A DEFECTIVE CHARGE

• Where the defect in the charge sheet is of such nature as to mislead the defendant, any
conviction based on it will be set aside on appeal.
• In situation where there are overwhelming evidence at the trial against the defendant, the
appellate court may order a retrial.
• Where the defendant is not misled by such defects in the charge sheet the charge remains
valid Ss. 158 ACJL Lagos, 220 ACJA, 227 ACJL Kano, Ogbomor v State (1985)2 SC.

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AMENDMENT OF CHARGES
• Amendment of charge is inclusive of any alteration, addition, or substitution of an existing
charge with a new one.
• It is important to note that, the trial court and the prosecution have the power to alter, amend
or add to the charge or even frame a new charge at any time before judgment is delivered.
• This is usually done upon discovery of any defect in the charge Ss 154 and 155(1) ACJL
Lagos, 216 (1) ACJA, 223 ACJL Kano.
• S216(1) ACJA provides that “a court may permit an alteration or amendment to a charge
or framing of a new charge at any time before judgment is pronounced.”
• It must bear the same charge number and be against the same accused person(s). It cannot
be an independent separate charge, co-existing with the original charge State v Chief
Magistrate Mbashi, Okwechime v The Police (1956)-1 F.S.C. 73
• The Court should not permit the amendment of a charge if it will cause injustice to the
accused R v Jennings 33 Criminal App. Rep. 143.

WHO CAN AMEND CHAERGES?

• The person who drafted the charges can amend same where he observes any defect on the
charge sheet, he has the discretion to amend the charge.
• In the south the law officers and police officers draft the charge and can amend same.
• While in the North and the FCT Abuja, the Magistrates and law officers draft the charges
and can amend same S216 ACJA, Nigerian Airforce v James (2002)18 NWLR Pt. 798.
• The court before which the charge is brought can suo motu amend a charge, where the
charge upon which the defendant is to be tried is defective S216(4) ACJA, S154 ACJL
Lagos, S223(3) ACJL Kano. See also Gboko v State (2007)17 NWLR PT. 1063 Pg. 272,
State v Chief Magistrate Mbaise, Exparte Onukwue (1978) LRN 316.
• Note, the new charge should continue the life of the original charge, thus must bear same
ref no, parties etc Okwechime v IGP (1956) FSC 73.

PROCEDURE FOR AMENDMENT.

1. Read and Explain: S216(2) ACJA, 155(2) ACJL Lagos, S223(3) ACJL Kano. S216 (2)
ACJA provides that “an alteration or amendment of a new charge shall be read and explained to
the defendant and his plea to the amended or new charge shall be taken.”

2. Plead to the New Charge: S217(1) ACJA, 156(1) ACJL Lagos, S223(3) ACJL Kano; the
new charge shall be read and explained to the accused person and he shall be asked to plead to the
charge Ss 156 & 157 ACJL; Ss 217, 218 & 219 ACJA, Youngman v The police (1959); Okosun
v. The State (1978); Okegbu v. The State (1981) 2 P.S.L.R. 14; Note that where a trial before a
MC was as a result of the accused's election to be tried by the MC, apart from a fresh plea, his
consent should also be sought afresh as to whether he still intends to be tried by the MC Youngman
v. The Police; Jones v. The Police 5 F S.C. 38.
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3. Confirm Readiness for Trial: S218(1) ACJA, S156(2) ACJL Lagos, S225(1) ACJL Kano.
The Court shall ask the accused whether he is ready to be tried on such charge S156(2) ACJL
Lagos provides that “if the defendant declares that he is not ready, the Court shall consider the
reasons he may give and if proceeding immediately with the trial is not likely in the opinion of the
Court to prejudice the defendant in his defence or the prosecutor in his conduct of the case, the
Court may proceed with the trial as if the new or altered charge had been the original charge.”

4. Adjourn if unready: S218(1) ACJA, S156(3) ACJL Lagos, S225(1) ACJL Kano: Either the
accused or the prosecutor shall be given adjournment or a new trial order if to proceed immediately
with the trial shall prejudice the accused in his defence or the prosecutor in the conduct of his case.
S156(3) ACJL Lagos provides that “if the new or altered charge is such that proceeding
immediately with the trial is likely, in the opinion of the Court, to prejudice the defendant or the
prosecutor, the Court may either direct a new trial or adjourn the trial for such date as the Court
may consider necessary.”

5. Endorsement: S218(2) ACJA, S156(4) ACJL Lagos, S225(2) ACJL Kano: The Court shall
endorse a note to order for amendment on the charge. S156(4) ACJL Lagos provides that where
a charge is so amended, a note of the order for amendment shall be endorsed on the charge, and
the charge shall be treated for the purpose of all proceedings connected with it as having been filed
in the amended form.

6. Recall of witness: S219 ACJA, S157 ACJL Lagos, S226 ACJL Kano: 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. S219 ACJA provides that
“where a charge is altered, amended or substituted after the commencement of the trial, the
prosecutor and the defendant shall be allowed to recall or re-summon and examine any witness
who may have been examined and to call any further witness, provided that such examination shall
be limited to the alteration, amendment or substitution made.

Note: where the accused is unrepresented by counsel, the Court must specifically inform him of
this right. If he is represented, the Court is not obliged to inform him Shoaga v R (1952), Contrast
Fayiga v The Police (1973), Osuolale v The State (1991).

AMENDMENT OF CHARGE AFTER THE DEFENDANT’S PLEA HAS BEEN TAKEN.

• The framer of a charge, the trial judge or the magistrate in the North who drafts the charge
is at liberty to amend the charge where a defect is noticed after the defendant’s plea is taken
S216(3) ACJA, Ss 154,155 ACJL
• The law has not prescribed the need for formal application to be made before the
amendment is made. Simply oral application may suffice S155(3) ACJL, Uguru v State
(2002)9 NWLR Pt. 771, pg. 90.

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• Note: where amendment is made before the defendant enters his plea, the court is not duty
bound to comply with post amendment requirements. But where the plea has been taken,
the court is under obligation to comply with post amendment requirement.

POST AMENDMENT REQUIREMENT.

• Procedure

1. Read and explain the new charge to the defendant. S216(2) ACJA, 155(2) ACJL Lagos,
S223(3) ACJL Kano.
2. The defendant is to enter a fresh plea on the amended charge. S217(1) ACJA, 156(1)
ACJL Lagos, S223(3) ACJL Kano
3. Adjourn if proceeding immediately with the trial will prejudice the defence or prosecution
S218(1) ACJA, S156(3) ACJL Lagos, S225(1) ACJL Kano
4. Recall of witness(es) S219 ACJA, S157 ACJL Lagos, S226 ACJL Kano
5. Endorsement S218(2) ACJA, S156(4) ACJL Lagos, S225(2) ACJL Kano

EFFECT OF FAILURE TO COMPLY WITH POST AMENDMENT PROCEDURE.

• Failure to read and explain to the defendant the amended charge before his plea is taken
will render the trial a nullity Ayodele v State (2011)6 NWLR Pt. 1243, pg. 309.
• Failure to avail the defendant reasonable time and facilities to prepare for his defence by
way of adjournment where need be may vitiate the proceedings S36(6)(b) CFRN; Gokpa
v IGP (1961) ALL NLR 432.
• Generally, failure to comply with post amendment procedure which eventually occasions
miscarriage of justice to the defendant will vitiate the proceedings Echeazu v C.O.P
(1974)2 SC 55.
• Failure to comply with the statutory requirements renders the trial null, void and of no
effect. The appeal Court, on appeal against conviction will set the conviction aside.
However, where there are sufficient or overwhelming evidence at the trial, the appellate
Court may order a retrial Echeazu v. The C.O.P (1974}2 S.C. 55.

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7.0 BAIL PENDING TRIAL

DEFINITION OF BAIL PENDING TRIAL

• It is the temporary release of a defendant from custody to sureties on conditions given to

ensure his attendance in court pending the determination of the case Suleiman v COP
(2008); Onyebuchi v. FRN (2009).

• Note that defendant may be granted bail without bringing a surety.

BAIL AND CONSTITUTIONAL RIGHTS

• Bail is a constitutional right of the Defendant because of his right to personal liberty. See
S35 CFRN which provides as follows:

• (1) Every person shall be entitled to his personal liberty and no person shall be deprived of
such liberty save in the following cases and in accordance with a procedure permitted by
law -

(a) in execution of the sentence or order of a court in respect of a criminal offence

of which he has been found guilty;

(b) by reason of his failure to comply with the order of a court or in order to secure
the fulfilment of any obligation imposed upon him by law;

(c) for the purpose of bringing him before a court in execution of the order of a
court or upon reasonable suspicion of his having committed a criminal offence,
or to such extent as may be reasonably necessary to prevent his committing a
criminal offence;

(d) in the case of a person who has not attained the age of eighteen years for the
purpose of his education or welfare;

(e) in the case of persons suffering from infectious or contagious disease, persons
of unsound mind, persons addicted to drugs or alcohol or vagrants, for the purpose
of their care or treatment or the protection of the community; or

(f) for the purpose of preventing the unlawful entry of any person into Nigeria or
of effecting the expulsion, extradition or other lawful removal from Nigeria of any
person or the taking of proceedings relating thereto:

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Provided that a person who is charged with an offence and who has been detained in lawful
custody awaiting trial shall not continue to be kept in such detention for a period longer
than the maximum period of imprisonment prescribed for the offence.

(2) Any person who is arrested or detained shall have the right to remain silent or avoid
answering any question until after consultation with a legal practitioner or any other person
of his own choice.

(3) Any person who is arrested or detained shall be informed in writing within twenty-
four hours (and in a language that he understands) of the facts and grounds for his
arrest or detention.

(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.

(5) In subsection (4) of this section, the expression "a reasonable time" means -

(a) in the case of an arrest or detention in any place where there is a court of
competent jurisdiction within a radius of forty kilometres, 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.

(6) Any person who is unlawfully arrested or detained shall be entitled to compensation
and public apology from the appropriate authority or person; and in this subsection, "the
appropriate authority or person" means an authority or person specified by law.

(7) Nothing in this section shall be construed -

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(a) in relation to subsection (4) of this section, as applying in the case of a person
arrested or detained upon reasonable suspicion of having committed a capital
offence; and

(b) as invalidating any law by reason only that it authorises the detention for a
period not exceeding three months of a member of the armed forces of the
federation or a member of the Nigeria Police Force in execution of a sentence
imposed by an officer of the armed forces of the Federation or of the Nigeria police
force, in respect of an offence punishable by such detention of which he has been
found guilty.

BAIL BY THE POLICE

• Going by the provisions of S35 (4) & (5) CFRN, the Police cannot, except in capital or
other serious offences, detain a person beyond 2 days in any case.

To detain a suspect without arraignment beyond the time stipulated by the constitution has
been held to be unconstitutional Danfulani v EFCC (2016)1 NWLR (Pt.1493)223 at 247.

• Suspect arrested for non-capital offence should be arraigned in court within 1 day or 2 days
if there is no court within 40 kilometers radius S35(4)(5) & (7) CFRN; S.30 (1) ACJA;
S.17 (1)(2) ACJL Lagos, S49(1) ACJL Kano.

Note that in Eda v Police (1982) 3 NCLR 219, the court had declared the provisions of
S.17 of the CPL as well as S.27 Police Act as null and void for being inconsistent with S35
(4) & (5) CFRN. However, it must also now be noted that the Police Act 2020 in Section
62 has now remedied the anomaly by being in conformity with the with the CFRN.

• If the suspect is not released on bail within one day for commission of a non-capital
offence, he should apply to court for release S64(1) PA, S32 (1) ACJA; S.18 (1) ACJL
Lagos, S51 ACJL Kano.
• Note that where there is more than one suspect detained at the Police Station and they are
represented by the same counsel a single application by their counsel listing their names
and names of their sureties suffices.

PROCEDURE FOR APPLICATION

• No specific procedure is provided by the law

• In practice it is usually applied for through a formal letter addressed to the officer in charge
of the station where the suspect is detained by a person who is ready to stand as surety for
the suspect.
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• In the letter the surety undertakes to produce the suspect at the time and place required.
• The letter may be written by a counsel for the surety.
• Counsel must not sign bail bond. but may certify the surety as a fit and proper person to
stand as surety for the suspect.
• In some police stations, a bail may be applied for by filling a printed form prepared by the
police for that purpose.
• An oral application may also be entertained.
• Police may release on bail if satisfied that the proper investigation of the case will not be
prejudiced by the grant of the bail and no risk of the suspect escaping justice exists.

Sample Draft of Police Bail Application

C. O. AGBATA & CO
BARRISTERS AND SOLICITORS
NO 15 EDUPAL DRIVE
IKOYI, LAGOS STATE.
(coagbata@coagbata.com)
Our Ref: Your Ref:

15th August, 2022

The Divisional Police Officer,

Police Divisional Headquarters,
Lagos,
Lagos State.

Sir,

APPLICATION FOR BAIL

We are solicitors to Mrs. Johnson Our Client, of No.5 Johnson Street, Ikoyi, Lagos State who is
currently under arrest and detention at your station.

We apply for her bail pending the arraignment of our client. Our client pledges to appear at the
station anytime requested by you.

We recommend Mr Peters Dibia of No. 15 Broad Street Lagos Island, Lagos State, an in-law to
our client, as a surety for our client’s bail. He is available and willing to take the suspect on bail
and promises to fulfil all the bail conditions.

Thanks for your anticipated cooperation.

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Yours faithfully,

………………………….
C. O. Agbata Esq.
(Principal Partner)
For: C.O. Agbata & Co.

COURT BAIL PENDING TRIAL

• All offences are bailable. The Court is vested with power to admit defendant to bail pending
trial S158 ACJA; S115(1) ACJL Lagos, S168 ACJL Kano.

However, “a defendant charged with any offence punishable with death shall not be
admitted to bail, except by a Judge of the High Court under exceptional circumstances.”
S161(1) ACJA, S115(1) ACJL Lagos, S171(1) ACJL Kano.

• It is generally based on the discretion of the court which must be exercised judicially and
judiciously. See Ukatu v COP (2001) FWLR (Pt.66)755.

NATURE OF THE OFFENCE AND GRANT OF BAIL

• The grant of bail by the Court depends on the nature of the offence Ss162-163 ACJA, S115
ACJL Lagos, Ss172-173 ACJL Kano.
• Bail is not ordinarily granted in respect of persons accused of capital offences S.161 (1)
ACJA; S.115 (1) ACJL., but can be granted in exceptional circumstances.
• The nature of the offence will determine the court with power to grant bail S.161 (1)
ACJA; S.115 (1) ACJL Lagos, S171(1) ACJL Kano.

INSTANCES WHEN BAIL MAY BE GRANTED IN CAPITAL OFFENCES

S161(2) ACJA provides that for the purpose of exercise of discretion in subsection (1) of
this section, “exceptional circumstance” includes:

(a) ill health of the applicant which shall be confirmed and certified by a qualified medical
practitioner employed in a Government hospital,

provided that the suspect is able to prove that there are no medical facilities to take care of
his illness by the authority detaining him;

(b) extraordinary delay in the investigation, arraignment and prosecution for a period
exceeding one year; or

(c) any other circumstances that the Judge may, in the particular facts of the case,
consider exceptional.
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1. Ill health
2. Extraordinary delay in arraignment (above 1 year)
3. Other exceptional circumstances as the court may hold.
See also S171(3) ACJL Kano.

BAIL WHERE A DEFENDANT IS CHARGED WITH OFFENCE EXCEEDING THREE

YEARS IMPRISONMENT
S162 ACJA provides that “a defendant charged with an offence punishable with imprisonment
for a term exceeding three years shall, on application to the court, be released on bail except in
any of the following circumstances:

(a) where there is reasonable ground to believe that the defendant will, where released on bail,
commit another offence;

(b) attempt to evade his trial;

(c) attempt to influence, interfere with, intimidate witnesses, and or interfere in the
investigation of the case;

(d) attempt to conceal or destroy evidence;

(e) prejudice the proper investigation of the offence; or

(f) undermine or jeopardize the objectives or the purpose or the functioning of the criminal
justice administration, including the bail system.

CAN A MAGISTRATE COURT GRANT BAIL IN CAPITAL OFFENCE?

• MC cannot grant bail in capital offences S161(1) ACJA, S115(1) ACJL Lagos, S171(1)
ACJL Kano.
▪ Magistrate may grant bail in cases it has no jurisdiction to try during remand proceedings
Ss 293 & 295 ACJA, S264 (5) ACJL Lagos.

▪ QUERE: Does it extend to Capital offences?

▪ The answer is apparently NO because of the provision of ACJA in S295 where bail by the
Magistrate is made subject to the provisions in sections 158-188 of ACJA. It provides that
“The court may, in considering an application for remand brought under section 293 of this
Act, grant bail to the suspect brought before it, taking into consideration the provisions of
sections 158 to 188 of this Act relating to bail.”

Similarly, S264(5) ACJL Lagos provides that, bail is where applicable. It provides that
“where applicable, a Magistrate shall grant bail to any person brought before him pursuant
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to subsection (1) of this section pending the arraignment of such person before the
appropriate Court or Tribunal.”

BAIL WHERE A DEFENDANT IS CHARGED WITH OFFENCE NOT EXCEEDING

THREE YEARS IMPRISONMENT
• S163 ACJA provides that; “in any other circumstance other than those referred to in
sections 161 and 162 of this Act, the defendant shall be entitled to bail, unless the court
sees reasons to the contrary.” Also, S115(3) ACJL Lagos, S173 ACJL Kano.

FACTORS TO BE CONSIDERED FOR GRANT OF BAIL

1. In granting bail pursuant to S35 CFRN, the SC has held that the court must balance the
interest of the individual citizen against that of the larger society Dokubo-Asari v FRN
(2007) All FWLR (Pt.375)588.
2. The nature of the offence and the severity of the punishment prescribed Abacha v State
(2002) FWLR (Pt. 98)863; Anaekwe v. COP (1995) 6 NWLR (pt. 403) 564,
3. The nature, character and quality of evidence against the accused; Abacha v. The State;
Bamaiyi v. State (2001) 4 SCNJ 103
4. Whether the accused will appear to stand for his trial (whether or not he will jump bail)
Dokubo-Asari v. Federal Republic of Nigeria.
5. The possibility of the accused interfering with further investigation and/or prosecution of
the case if granted bail; Bamaiyi v State, Dantata v. COP (1958) NNLR 3, Dambaba v.
State (2000) 14 NWLR (Pt. 687) 396.
6. The Prevalence of the Offence Felix v. State (1978) LRN 308; Ajudua v. Federal
Republic of Nigeria (2005) All FWLR (pt. 246) 1274, Ani v. State (2002) 1NWLR (Pt
747).
7. Detention for the protection of the defendant Bamaiyi v. State, Nnogu v. State (2002)
FWLR (pt. 103) 482.
8. The possibility of the defendant committing the same or similar offence while on bail R.
vs. Jammal.
9. The criminal record of the accused, Eyu v. The State (1988) 2 NWLR (pt.78) 602; Ajudua
v. FRN.
10. Ill-Health Ani v. State; Abacha v State, Fawehinmi v. The State (1990) 1 NWLR 486.
11. The availability of the defendant to stand trial Bamaiyi v State.
Note that bail is not to be refused as a form of punishment to the defendant. Dogo v Commissioner
of Police (1980) NCR 14.

APPLICANT RELYING ON ILL-HEALTH TO ESTABLISH THE FOLLOWING…

1. That the ill-health may affect other inmates in the detention centre,
2. Convincing medical report by a specialist in that field of medicine in support of the claim
of the applicant;
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3. That the ill-health cannot be managed by the medical unit in the clinic as a result of
inadequate medical facilities or expertise.
See Ofolue v Federal Republic of Nigeria (2005) 3 NWLR (Pt. 913)571.

The affidavit in support of the bail application must show the following:
(a) That the ill-health is likely to affect other inmates where the applicant is detained.
Consider whether the application may be granted where the illness is not contagious.

(b) That there is a positive and cogent medical report issued by an expert pointing
irresistibly to the existence of the illness (preferably a government hospital-S.161(2)
ACJA).

(c) That the prison lack adequate medical facilities to treat the applicant’s ailment.

Note: The Court must not refuse the accused bail as a punishment Dogo v. The COP; this is
because the accused is usually presumed innocent until his guilt is proved Eyu v. The State, S36(5)
CFRN.

Note: The accused is only required to enter into recognizance in the sum fixed by the Court. It is
not a requirement of the law that he should deposit money before bail is granted Onuigbo v. The
C.O.P (1967) N.M.L.R 44: Eyu vs. The State (1988) 2 NWLR (pt. 78) 602.

REFUSAL OF THE MAGISTRATE TO GRANT BAIL

Where a Magistrate to whom application for bail has been made refused or neglected to grant bail,
application could be made to a Judge of High Court who shall have power to grant such bail. See
S119 ACJL Lagos; Dogo v. The COP.

Note that once a Court has refused to grant bail, application for bail should be filed at a higher
Court, not in any Court of the same co-ordinate jurisdiction. See The State v. Uwa (1976) 2
E.N.L.R 143; Anaekwe v. COP (1995) 6 NWLR (pt. 403),564.

CAN APPLICATION FOR BAIL BE MADE ORALLY?

• Bail Application to court may be made orally or in writing. See S32(3) ACJA; S.18 (3)
ACJL Lagos; Abiola v FRN (1995)1 NWLR (Pt.370)155.
▪ Note that whether it will be oral or in writing depends on the court seized of the matter.

PROCEDURE FOR BAIL APPLICATION AT THE MAGISTRATE COURT

• There is no procedure stated under any of the laws.
• The ACJA, ACJL, silent on any procedure.
• It is usually made orally after the plea of the defendant, unless otherwise directed by the
presiding officer.
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• This is the procedure applicable in all jurisdictions in Nigeria Dogo v COP.

PROCEDURE FOR BAIL APPLICATION AT THE HIGH COURT IN THE NORTH

• Application is by Motion on Notice
• Supported by affidavit, and
• Written address (requirement of practice).
See Tanko v COP (1986)1 QLRN; S.35 HCL Northern Nigeria.

PROCEDURE FOR BAIL APPLICATION AT THE HIGH COURT IN LAGOS

• Application is by Summons
• Supported by affidavit, and
• Written address (requirement of practice).
But see S262 ACJL Lagos which provides that “where a matter arises in respect of which no
adequate provisions are made in this Law, a Court shall adopt such procedure as will in its view
do substantial justice between the parties concerned.” Simidele v COP; State v Uwah.

PROCEDURE FOR BAIL APPLICATION AT THE HIGH COURT IN FCT (ABUJA)

• Application is by Motion on Notice
• Supported by affidavit, and
• Written address (requirement of practice).
See S492 (3) ACJA. Tanko v COP (1986)1 QLRN;

PROCEDURE FOR BAIL APPLICATION AT THE FEDERAL HIGH COURT

• Application is by Summons
• Supported by affidavit, and
• Written address (requirement of practice).
See S158 ACJA which empowers the court to grant bail without providing specific procedure to
bring the application.

PROCEDURE FOR BAIL APPLICATION AT THE NATIONAL INDUSTRIAL COURT

• Application is by Summons
• Supported by affidavit, and
• Written address (requirement of practice).
See S158 ACJA which empowers the court to grant bail without providing specific procedure to
bring the application. S.254F (1) & (2) CFRN.

PROCEDURE FOR BAIL APPLICATION AT HC AFTER REFUSAL BY MC IN THE

SOUTH & LAGOS
• Summons
• Affidavit in support of summons for bail

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• Certified true copy of the charge sheet

• Certified true copy of the ruling of the lower court refusing the initial application, and
• Written address (requirement of practice).
• Note: it’s a fresh application, not an appeal.
See Simidele v COP; State v Uwah (1976) 2 FNR 143 SC; S.119 ACJL Lagos; Ss.158 & 168(b)
ACJA.

PROCEDURE FOR BAIL APPLICATION AT HC AFTER REFUSAL BY MC IN THE

NORTH & FCT

• Motion on Notice/Summons
• Affidavit in support of summons for bail
• Certified true copy of the charge sheet
• Certified true copy of the ruling of the lower court refusing the initial application, and
• Written address (requirement of practice).
• Note: it’s a fresh application, not an appeal.
See. Achadu v State (1981) 1 NCR 16; S.35 High Court Law NN.

PROCEDURES AT THE VARIOUS COURTS

MC all over Orally as no provision in law
HC North/FCT • Motion on Notice
• Affidavit
• Written address

FHC, NIC, HC Lagos • Summons

• Affidavit
• Written address

HC North/FCT after • Motion on Notice/Summons

MC refusal • Affidavit in support of summons
• CTC of the charge sheet
• CTC of the ruling of the lower court refusing the initial
application, and
• Written address

NB: it’s a fresh application, not an appeal.

FHC. NIC, HC Lagos • Summons
• Affidavit in support of summons
• CTC of the charge sheet

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• CTC of the ruling of the lower court refusing the initial

application, and
• Written address

NB: it’s a fresh application, not an appeal.

Application for Bail • Motion on notice
Pending Appeal • Affidavit
• Written address

Should be separate motion paper where more than one applicant

despite having same counsel but where one motion paper is used, it
must be separate affidavits.

This doesn’t not apply to bail pending trial.

Variation/Review of • Motion on Notice/Summons
Bail • Affidavit
• Written address

EFFECT OF NON-COMPLIANCE WITH PROCEDURE

The trend of cases supports the proposition that the Court will not punish a person for not strictly
complying with procedural rules. If a person has a right, it does not really matter how he enforces
it. The Court will look into the justice of the case since rules of procedure cannot override the rule
of substantive justice. See Falobi v. Falobi (1976) 1 N.M.L.R 169; Bello v. The Attorney-
General Oyo State (1986) 12 S.C.I

IMPLICATION OF THE ACCUSED JUMPING BAIL

S184 ACJA provides that “where a defendant who is bound by a recognizance or bond to appear
before a court or police station does not so appear, the court may issue a warrant for his arrest.”

BAIL PENDING APPEAL

Once an accused is convicted, he is no longer presumed innocent. He becomes a prisoner. Although
he may apply for bail pending the hearing of his appeal, such a bail is usually rarely granted. The
Court only grants bail upon special circumstances being shown by the prisoner.

WHAT CONSTITUTES SPECIAL CIRCUMSTANCE?

The categories may not be closed. It will therefore depend on peculiar circumstances of each case.
The following situations have been pronounced upon by the Court to constitute special
circumstances:

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(1) Where the applicant will be of assistance for the preparation of the real case for appeal
or that the real case is so complex that there is obvious need for close consultation between
the applicant and his legal practitioner. See R v. Starkie 24 Cr. App Rep. I at 2.

(2) Where to refuse the application will put the applicant's health in serious jeopardy, e.g.,
a hypertensive patient who needs constant medical attention and who cannot be attended
to in custody. See Fawehinmi v. The State (1990) 1 N.W.L.R 486; Chukwunyere v. The
C.O.P. (1975) 5 E.C S.L.R. 44

(3) Where a sentence is manifestly contestable, refusal of bail in such circumstances could
inflict a greater injury on the applicant who may well have served an illegal sentence. See
Fawehinmi v. The State (1990) 1 N.W.L.R 486 (supra).

(4) The Court also considers the length of time which must elapse before the appeal can be
heard and the length of sentence appealed against. Where the accused may have served the
sentence before his appeal can be heard, bail may be granted. See R v. Tunwase (1935) 2
W.A.C.A 236; Okoroji v. The State (1990) 6 E.N.L.R 509 (Pt 157)., Jennifer Madike v.
The State (1992) 8 NWLR (Pt. 257), 85, Obi v. State (1992) 8 N.W.L.R (Pt 257), 76.

(5) Where the appellant was granted bail in the course of trial and he did not jump bail. See
Munir v. F.R.N (2009) All FWLR (Pt. 500) 775; Olamolu v. F.R.N. (2009) All FWLR
(Pt. 485) 1800.

(6) Where the appellant is a first-time offender. See Buwai v. State (2004) All FWLR (Pt.
227) 540.

Procedure for Application:

Application for bail pending appeal is done by motion on notice supported by affidavit and not
summons. See Aroyeun v. C.O.P (1968) NMLR 433.

Where two or more accused persons are jointly tried and convicted, even where they are
represented by the same counsel, it is important that separate motion paper and affidavit be filed
for each of the applicant. See Afigbu v. C.O.P (1975) NNLR 128. Where however the counsel
elects to file one motion paper for two or more applicants, yet the applicants must depose to
separate affidavits.

TERMS OF BAIL
By terms of bail, we mean security for the temporary release of the defendant on security for his
appearance on a named date for further interrogation or trial. See S116 (1) ACJL. Therefore, it
entails the conditions upon which bail is granted which must be fulfilled before the defendant will
be released from custody. The terms of bail are usually spelt out by the Judge when granting bail
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depending on the circumstances of the case and the status of the individual applying for bail S165
(1) ACJA; S116 (1) ACJL, Dogo v COP.

Terms upon which bail may be granted are:

1. Defendant’s recognizance: Bail may be granted on this term when the person applying
for bail appears to be a person of repute and the Court reasonably believes that such person
will appear to face his trial or jump bail.

2. Defendant executing a bond: Depending on the circumstances of the case the Court may
make an order for the execution of bond for a fixed sum before the applicant for the bail
will be released from custody. The bond is an undertaken by the applicant that he will
appear to face his trial. Where the applicant fails to appear as at when due, the sum in the
bond may be forfeited, the bail revoked and bench warrant issued for his arrest. See S.184
ACJA, S194 ACJL Kano.

3. Producing a surety to execute a bond in a specified sum: Based on the discretion of the
Court considering the bail application and depending on the circumstances of the case, the
Court may require an applicant for the bail application to produce a surety/sureties S118
(1) ACJL Lagos; S.167 (1) ACJA, S177(1) ACJL Kano. Such surety/sureties are to
execute a bond in a specified sum in favour of the State which is an irrevocable undertaking
to forfeit the sum stated in the event that the applicant jumps bail, unless he shows good
reason why he should not be made to forfeit the sum S184 ACJA, S194 ACJL Kano.

4. Deposit of money in lieu of bond: The Court may suo motu direct an applicant for bail to
deposit money in lieu of entering into a bond. See S116 (2) ACJL Lagos; S. 165 (2) ACJA,
S175(2) ACJL Kano. The applicant could also make such a request and the Court will
consider it especially where the applicant may find it difficult to get a surety. Where such
money is deposited, it must be kept in an interest yielding account or be handed to the
Court registrar. S.136 ACJL Lagos; S. 185 ACJA, S195 ACJL Kano. Upon the grant of
bail by the Court and subsequent fulfilment of the bail conditions, the Court will
immediately issue a written order of release to the officer in charge of the prison or such
other place of detention which will facilitate the detainee’s immediate release S171 ACJA;
S. 124 ACJL Lagos, S181 ACJL Kano.

VARIATION/REVIEW OF BAIL TERMS

Judge may vary bail fixed by Magistrate or police. A Judge of a HC may direct that the: (a) bail
conditions required by a MC or police officer be reviewed S168 ACJA, S120 ACJL Lagos, S178
ACJL Kano.

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Continuous bail: The court may, where the circumstances appear just: (a) vary the order of release
on bail of the defendant at any subsequent hearing; and (b) at any subsequent stage of any
proceeding, cause a defendant who has been released on bail to be arrested and be committed to
custody: Provided that the Judge shall state in his record the reason for the variation of the order
or committal of the defendant. S173(2) ACJA, S123 ACJL Lagos, S183(2) ACJL Kano.

Variation of a recognizance if surety unsuitable: Where at any time after a recognizance has
been entered into, it appears to the court that for any reason the surety or sureties are unsuitable,
the court may: (a) issue a summons or warrant for the appearance of the principal; and (b) on his
coming to the court, order him to execute a fresh recognizance with other surety or sureties, as the
case may be. S176 ACJA, S128 ACJL Lagos, S186 ACJL Kano.

PROCEDURE FOR VARIATION/REVIEW OF BAIL TERMS

• Motion on Notice/Summons
• Affidavit in support of motion/Summons
• Written address.

CANCELLATION OF BAIL ALREADY GRANTED

The law now provides that where bail is granted to a defendant and circumstances arise which in
the opinion of the AG, a Law Officer or a Police Officer would justify the Court in cancelling the
bail, refusing bail or requiring bail of a greater amount, an application may be brought for its
cancellation Ss 169 & 175 ACJA; S126 ACJL Lagos;

QUALIFICATION AS A SURETY
1. Person of known address;
2. Person of good character;
3. Person acceptable to court.
4. Person of reasonable means of income

ELIGIBILITY OF A WOMAN TO STAND AS SURETY

• There is no law in Nigeria that prohibits a woman from standing surety.
• Denial amounts to discrimination under S42 (1)(a) CFRN. See S167 (3) ACJA; S118 (3)
ACJL Lagos., Ukeje v Ukeje, Anaekwe v Nweke.
QUERE: Can a pregnant woman/woman in pudah be allowed to stand as a surety?

BONDSPERSON
• The ACJA & ACJL provide for the registration and licensing of persons or corporate
bodies to act as bondsperson within the jurisdiction of the court they are registered to
operate S138 ACJL Lagos; S187 ACJA.

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• Bondspersons enter recognizance, stand as surety, guarantee deposit of money to the court
within the jurisdiction of the court where they are registered S.187 (5) ACJA; s.138(5)
ACJL Lagos.

APPOINTMENT OF BONDSPERSON
• The Chief Judge of the State appoints/registers bondsperson to operate within the State
jurisdictions where they are licensed to operate S138 (1) ACJL Lagos.
• For FCT, the CJ of the FHC or Chief Judge of FCT HC appoints/registers bondspersons to
operate in FCT S187 (1) ACJA.

QUALIFICATION AS BONDSPERSON
• For an individual, he must be of unquestionable character and integrity.
• In the case of corporate organizations, the organization must be composed of persons of
unquestionable character and integrity. See S.187(6) ACJA; S.138 (6) ACJL Lagos.

PUNISHMENT FOR IMPERSONATING A BONDSPERSON

• Practicing as a bail bondsperson without registration is an offence S187 (3) ACJA; S.138
(3) ACJL Lagos.

• Note: The bonds entered by the bondsperson are tied to an amount in a bank in the form of
Bank guarantee deposited with the CJ S138 (6)(7) ACJL Lagos; S.187 (6)(7) ACJA.

POWER OF ARREST BY BONDSPERSON

• A defendant attempting to escape or avoid appearance in court may be arrested by a
bondsperson without warrant.
• Person arrested must be brought to court within 12 hours.
• Failure to produce the person in court within 12 hours, he should hand him over to the
Police.
• Police will produce the person before the court S188 ACJA and S. 138 (8) ACJL Lagos.

REVOCATION OF BAIL (INSTANCES)

Once the beneficiary of a bail keeps to the term and conditions of the bail, such will not be revoked.
Bail may however be revoked in the following instances:

A) Assuming the applicant was granted bail by the Police, such bail is automatically revoked upon
the arraignment of the suspect in Court, or otherwise revoked by the police if the conditions has
been breached.

B) If the bail was granted by the Court pending trial, such bail remains until the determination of
the case against the defendant by the Court or the bail is revoked by the Court for breach of the
conditions.
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C) Where the bail was granted by an appellate Court pending appeal, it remains in force until the
determination of the appeal before it becomes automatically revoked.

D) Where the surety applies to be discharged and surrenders the accused, the Court will oblige
him and discharge him. The accused will be detained until he gets another surety Caleb Ojo &
Anor. v F.R.N, S177(1) ACJA, S.129 ACJL Lagos.

E) Where the accused who is on police bail commits another offence for which the police cannot
grant bail. Upon being informed of this development by a superior police officer, the Magistrate
shall issue a warrant for the apprehension of the offender S127(1) ACJL.

F) Where the defendant/accused deliberately fails to keep to the terms and conditions of the bail
after being released on bail. In such scenario bench warrant may be issued for his arrest S184
ACJA 2015. Also, the bail bond will be forfeited.

G) Where the surety dies S.178 ACJA; S.130 ACJL.

WHAT HAPPENS TO A SURETY WHO FAILS TO PRODUCE A DEFENDANT?

• Can the surety be arraigned?
See Christopher Ekwuazi v DPP (1999) 3 NWLR (Pt. 593) 31 CA; See S36(8) CFRN. “A
charge against a surety for refusing to produce an accused person is not known to law. In the instant
case therefore, the prosecution of the appellant is unconstitutional and therefore null and void.”

REMEDY TO THE STATE WHERE SURETY FAILS TO PRODUCE A DEFENDANT?

1. Forfeiture of bond;
2. Imprisonment for failure to pay.

RECONSIDERATION OF BAIL
• A Defendant on bail may have his bail cancelled based on circumstances or be required to
execute higher bond. See S.169 ACJA; S.126 ACJL Lagos.

POWER OF THE MAG TO RELEASE DETAINEES ON BAIL FROM DETENTION

CENTRES
• The Chief Magistrate within the Police Division or a designated Magistrate by the CJ
SHALL visit the Police station & other places of detention every month to conduct
inspection S.34 (1) ACJA.
• During the visit, he may call for and inspect the records of arrest and direct the arraignment
of suspect S.34 (2) (a)(b) ACJA.
• During the visit, Magistrate may grant bail where appropriate to any person detained where
bail has been refused if he has jurisdiction. See S.34(2)(c) ACJA.

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• During such visits records of arrest and bail, applications for bail made within the period
shall be made available to the Magistrate. See S34(3) (a-c) ACJA.
• With respect to other FG Agencies empowered to make arrest, the HC Judge having
jurisdiction shall visit such detention facilities for purposes provided in the section S34(4)
ACJA.

PENALTY FOR REFUSING MAGISTRATE ACCESS TO RECORDS

• Failure by any officer to comply with the provisions of S34(3) ACJA shall be treated as a
misconduct S34 (5) ACJA.

POWER OF THE CJ TO RELEASE PRISONERS

• See Edwin Iloegbunam & Ors v. Richard Iloegbunam & Ors (2001) 47 WRN 72
wherein the CA had upheld the constitutional validity of the Criminal Justice (Release
from Custody) (Special Provisions) Act 1977.
• Section 21 of the Nigerian Correctional Service Act, 2019, the CJN, Justices of SC and
CA, and the CJ of the states are among prison visitors ex officio.
• Such release relates only to awaiting trial inmates.
• It relates also to those whose trial are on-going, but they have over stayed the maximum
years of imprisonment they could have served if convicted.
• It does not relate to those already convicted and serving their sentences S1 of the Criminal
Justice (Release from Custody) (Special Provisions) Act 1977.

REMAND ORDER PROCEEDINGS

▪ Any person arrested for an offence for which the magistrate has no power to try shall within
a reasonable time of arrest be brought before a MC for remand S293(1) ACJA; s.264 (1)
ACJL Lagos.
▪ Remand proceedings and orders has been held to be constitutional by the SC Lufadeju v
Johnson (2007) All FWLR (871) 1532; (2007) 3 S.C (Pt. II)134.

REMAND ORDER PROCEEDINGS UNDER ACJA

• Application for remand order to the court is brought by way of an ex parte application
under ACJA. S293(2) ACJA;
• The form for the application is as contained in Form 8 in the 1st schedule to ACJA-293
(2) (a).

REMAND ORDER PROCEEDINGS UNDER ACJL LAGOS

• In Lagos the procedure of bringing the application is by completing The Request Form.
See Form K in the ACJL Lagos -264 (1) & (3).

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FACTORS THE COURT WILL CONSIDER BEFORE REMAND ORDER IS GRANTED

• The factors the court will consider before making the remand order is listed in S.294(2) (a-
d) ACJA; S.264 (4) ACJL Lagos. They include:
• (a) the nature and seriousness of the alleged offence;
• (b) reasonable grounds to suspect that the suspect has been involved in the commission of
the alleged offence;
• (c) reasonable grounds for believing that the suspect may abscond commit further offence
where he is not committed to custody; and
• (d) any other circumstance of the case that justifies the request for remand.

GRANT OF BAIL IN REMAND ORDER PROCEEDINGS

• The request for a remand order must be in writing.
• The Court may in a remand application grant bail S295 ACJA; S. 264 (5) ACJL Lagos.

LIFE SPAN OF REMAND ORDER UNDER ACJA 2015

• It is 14 days in the first instance.
• It is renewable for another 14 days upon good cause shown S.296 (1) & (2) ACJA.

❖ At the expiration of 2nd renewal, if suspect is still in custody the Magistrate will issue
hearing notice to IGP, COP & AGF to inquire as to the position of the case and for them
to show cause why the suspect should not be released and adjourn for another 14 days
S296 (4) ACJA.
• Under ACJA, if suspect is still in custody at the expiration of the two periods court may
grant him bail upon his application. S.296 (3) ACJA.
• Upon good cause shown it may be extended for a final period of 14 days. S296(5)(a)
ACJA.
• Where good cause is not shown upon the expiration of the 2nd renewal, or final period, the
court shall with or without an application to that effect discharge the suspect who shall be
immediately released from custody. S296 (6) ACJA.
• The proceedings in s.296 (6) shall be a bar to any other remand proceedings in any court
S296 (7) ACJA.

LIFE SPAN OF REMAND ORDER UNDER ACJL (LAGOS)

• Under ACJL it is 30 days in the first instance.
• Upon expiration, Magistrate shall order release of the person unless good cause shown for
renewal for 1 month S.264 (6) ACJL.

❖ At the expiration of 2nd renewal, if suspect is still in custody the Magistrate will issue
hearing notice to COP & DPP to inquire as to the position of the case and for them to show
cause why the suspect should not be released S264 (7) ACJL.

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❖ The court may renew the order if satisfied with the reasons given for a final period S264
(8) ACJL;

CONCEPT OF HOLDING CHARGE

• The Concept of holding charge is a procedure whereby the Police arraigns a defendant in
a MC on a charge for an offence of which the MC lacks jurisdiction to entertain.
• The essence is to guard against the breach of S35 (4) & (5) CFRN.
• The court will not take the plea of the defendant but will make an order for the person to
be remanded in Correctional Centre pending when a formal charge will be filed in court
with jurisdiction.
• Once the order is made the defendant will be dumped in the Correctional Centre for months
or years without arraignment under awaiting trial.

LEGALITY OF HOLDING CHARGE

• The SC in Lufadaju v Johnson held that holding charge is illegal.
• See the following cases on holding charge: Onagoruwa v. State (1992) 2 NWLR (Pt.
221) 33 at 54 (SC). Shagari v. COP & ors (2005) All FWLR (Pt. 262) 450. Jimoh v.
C.O.P (2004) 17 NWLR (Pt. 902) 389.

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SAMPLE DRAFTS OF BAIL APPLICAITON

Application before High Court after refusal by a Magistrate

IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY

IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
CHARGE NO: FCT/HC/2022/1591
BETWEEN:
FEDERAL REPUBLIC OF NIGERIA________________COMPLAINANT/RESPONDENT
AND
1. IKPO UDO
2. BURAGO MUSA____________________________________DEFENDANTS/APPLICANT

MOTION ON NOTICE

BROUGHT PURSUANT TO SECTIONS 164 AND 165 OF THE ADMINISTRATION OF

CRIMINAL JUSTICE ACT, 2015 AND SECTION 35(4), (5) AND SECTION 36(5) OF THE
CONSTITUTION OF FEDERAL REPUBLIC OF NIGERIA, 1999 (AS AMENDED) AND THE
INHERENT JURISDICTION OF THIS HONOURABLE COURT

TAKE NOTICE that this Honourable court will be moved on the 15th day of August, 2022 at the
hour of 9’O clock in the forenoon or so soon thereafter as applicant’s counsel will be heard on
behalf of the applicant praying for the following orders:

1. AN ORDER admitting the defendant/applicant to bail pending his trial

2. AND such further orders as this Honourable court may deem fit to make in the circumstances
of this case.

Dated this 15th day of August, 2022

_____________
C. O. Agbata Esq.
Applicant’s Counsel
C. O. Agbata & Co
15 Edupal Drive,
Ikoyi, Lagos.
FOR SERVICE ON:
The Hon. Attorney-General of Federation
Attorney-General’s Chambers
Ministry of Justice
Abuja.

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IN THE HIGH COURT OF LAGOS STATE

IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
CHARGE NO: LG/HC/2022/1591

BETWEEN:
THE STATE OF LAGOS … ………………COMPLAINANT/RESPONDENT
AND
1. BOLANKE MANITOBA
2. KAMANGA ZAKI …………………………………………DEFENDANTS/APPLICANTS
SUMMONS FOR BAIL

BROUGHT PURSUANT TO SECTION 35 OF THE CONSTITUTION OF THE FEDERAL

REPUBLIC OF NIGERIA, 1999 AS AMENDED, SECTION 115 OF THE ADMINISTARTION
OF CRIMINAL JUSTICE (REPEAL AND RE-ENACMENT) LAW OF LAGOS STATE, 2011
AND UNDER THE INHERENT JURISDCTION OF THIS HONOURABLE COURT.

LET ALL PARTIES attend at the High Court of Lagos State holden at 9 O’clock in the forenoon
or so soon thereafter on the hearing of an application for:

1. AN ORDER admitting the defendants/applicants to bail pending the determination of the trial
at the magistrate court.

2. AND FOR SUCH FURTHER ORDER OR ORDERS as the Honourable Court may deem fit to
make in the circumstances.

Dated this _________ day of ____________________ 2022.

_____________
C. O. Agbata Esq.
Defendant/Applicants’ Counsel
C. O. Agbata & Co
15 Edupal Drive,
Ikoyi, Lagos
FOR SERVICE ON:
The Complainant/Respondent
Attorney General of Lagos State
Ministry of Justice,
Lagos.

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IN THE HIGH COURT OF LAGOS STATE

IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
CHARGE NO: LG/HC/2022/1591

BETWEEN:
THE STATE OF LAGOS … ………………COMPLAINANT/RESPONDENT
AND
1. BOLANKE MANITOBA
2. KAMANGA ZAKI …………………………………….. DEFENDANTS/APPLICANTS

AFFIDAVIT IN SUPPORT OF APPLICATION FOR BAIL FOR THE 1ST

DEFENDANT/APPLICANT

I, Bolanke Manitoba, male, businessman, residing at No. 54 Ajah, Victoria Island, Lagos, Nigerian
citizen, do hereby make oath and state as follows:

1. That I am the deponent to this affidavit and the first defendant thereof.
2. That I was arrested on the _______ day of ________ for the alleged offence of stealing.
3. That since the ____ day of 2015 I have been in police custody and in prison custody. I have
been detained at the police custody for a period of ____ .
4. That I am standing trial at the magistrate court for the offense of stealing. Attached herewith
is the Certified true copy of the charge sheet marked as EXHIBIT A
5. That my bail application at the magistrate court was refused. Attached herewith is the
Certified true copy of the ruling of the Magistrate court refusing the bail application marked
as EXHIBIT B
6. That I am an out-patient at the Lagos State Teaching Hospital as I am suffering from
tuberculosis and cardiopathy. Attached herewith is the medical report marked as EXHIBIT
C
7. That I have sought treatment from the prisons authority and the medical facilities in the
prisons are inadequate to take care of my health.
8. That if this application is not granted it may lead to my death and thereby frustrate the trial
of the present case.
9. That the grant of this application will not prejudice the case of the prosecution.
10. That I will not in any way interfere with the investigation of this case if granted bail.
11. That I make this solemn declaration in good faith and in accordance with the Oath Law of
Lagos State.

_____________________

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DEPONENT

SWORN TO AT High Court Registry

This ………… Day of ……………… 2022

BEFORE ME

…………………………………..
COMMISSIONER FOR OATHS

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IN THE HIGH COURT OF LAGOS STATE

IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
CHARGE NO: LG/HC/2022/1591

BETWEEN:
THE STATE OF LAGOS … ………………COMPLAINANT/RESPONDENT
AND
1. BOLANKE MANITOBA
2. KAMANGA ZAKI ……………………………………. DEFENDANT/APPLICANTS

WRITTEN ADDRESS IN SUPPORT OF THE 1ST DEFENDANT/APPLICANT’S

APPLICATION FOR BAIL

INTRODUCTION:

Before this honourable court is a motion on notice dated and filed on the 15 day of August, 2022.
This application is brought pursuant to Sections 164 and 165 of the Administration of Criminal
Justice Act, 2015; Section 35(4) and 36 of the Constitution of Federal Republic of Nigeria 1999;
and under the inherent jurisdiction of this court praying for an order of this Court admitting the
Defendant/Applicant to bail pending his trial.

The jurisprudence and legal philosophy behind the granting of bail is founded on the constitutional
right of freedom of personal liberty.

STATEMENT OF FACTS

ISSUES FOR DETERMINATION

LEGAL ARGUMENT

CONCLUSION

LIST OF AUTHORITIES

Dated this _____day of_________ 2022.

_____________
C. O. Agbata Esq.
Applicants’ Counsel

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C. O. Agbata & Co
15 Edupal Drive,
Ikoyi, Lagos
FOR SERVICE ON:
The Complainant/Respondent
Attorney General of Lagos State,
Ministry of Justice,
Lagos.

HOW TO MOVE AN APPLICATION FOR BAIL-------------------ABARA EWAPP

1. Announce appearance: May it please this honourable court, My Lord, C. O. Agbata,

appearing for the accused persons/defendants.
2. Before this HC clause: My Lord, before this Honourable Court is an application for bail
on behalf of the accused persons/defendants dated and filed on the …………… day of
………..2022.
3. Authority for the application clause: My Lord, 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
4. Relief clause: My lord, we seek the following reliefs: An order of the court admitting the
2nd accused person/defendant/applicant to bail pending the determination of his trial
5. Affidavit clause: My lord, in compliance with the rules of this Honourable Court, our
motion is supported by an 11-paragraph affidavit sworn to by the 1st accused/defendant.
We rely on all the paragraphs of the affidavit particularly paragraphs 4-10.
6. Exhibit introduction clause: My lord, accompanying the affidavit is an exhibit marked
EXHIBIT A.
7. Written address: My lord, we have also filed a written address in support of our
application. We wish to adopt same as our oral argument before this Honourable Court.
8. Aligning the factors for grant of bail: My lord, it is trite law that for an applicant to be
granted bail, certain factors are put into consideration. My Lord, these factors exist in
favour of the applicant.
9. Prayer for grant of bail clause: We humbly pray this Honourable Court to grant bail to
the accused on liberal terms.

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8.0 CONSTITUTIONAL SAFEGUARDS TO ENSURE FAIR TRIAL OF

AN ACCUSED PERSON
These safeguards are encapsulated in S36 CFRN which provides as follows:

(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.

(2) Without prejudice to the foregoing provisions of this section, a law shall not be invalidated by
reason only that it confers on any government or authority power to determine questions arising in
the administration of a law that affects or may affect the civil rights and obligations of any person
if such law -

(a) provides for an opportunity for the persons whose rights and obligations may be
affected to make representations to the administering authority before that authority makes
the decision affecting that person; and

(b) contains no provision making the determination of the administering authority final and
conclusive.

(3) The proceedings of a court or the proceedings of any tribunal relating to the matters mentioned
in subsection (1) of this section (including the announcement of the decisions of the court or
tribunal) shall be held in public.

(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:

Provided that -

(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
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heard in private and shall take such other action as may be necessary or expedient to prevent
the disclosure of the matter.

(5) Every person who is charged with a criminal offence shall be presumed to be innocent until he
is proved guilty;

Provided that nothing in this section shall invalidate any law by reason only that the law imposes
upon any such person the burden of proving particular facts.

(6) Every person who is charged with a criminal offence shall be entitled to -

(a) be informed promptly in the language that he understands and in detail of the nature of
the offence;

(b) be given adequate time and facilities for the preparation of his defence;

(c) defend himself in person or by legal practitioners of his own choice;

(d) 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; and

(e) have, without payment, the assistance of an interpreter if he cannot understand the
language used at the trial of the offence.

(7) When any person is tried for any criminal offence, the court or tribunal shall keep a record of
the proceedings and the accused person or any persons authorised by him in that behalf shall be
entitled to obtain copies of the judgement in the case within seven days of the conclusion of the
case.

(8) 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

(9) No person who shows that he has been tried by any court of competent jurisdiction or tribunal
for a criminal offence and either convicted or acquitted shall again be tried for that offence or for
a criminal offence having the same ingredients as that offence save upon the order of a superior
court.

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(10) No person who shows that he has been pardoned for a criminal offence shall again be tried
for that offence.

(11) No person who is tried for a criminal offence shall be compelled to give evidence at the trial.

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

SUMMARY OF THE RIGHTS

1. Right to fair hearing – S36(1) & (2) (4) CFRN
2. Right to be tried in public – S36(3) & (4) CFRN
3. Right to trial within reasonable time (speedy trial) in public – S36(4) CFRN
4. Right to be presumed innocent – S36(5) CFRN
5. Right to be informed of the crime alleged – S36(6)(a) CFRN
6. Right to be given adequate time to prepare for his defence – S36(6)(b) CFRN
7. Right to a counsel – S36(6)(c) CFRN
8. Right to examine witnesses – S36(6)(d) CFRN
9. Right to an interpreter – S36(6)(e) CFRN
10. Right against trial upon retroactive legislation and heavier penalty – S36(8) CFRN
11. Right to one trial for one offence – right against double jeopardy – S36(9) CFRN
12. Right against trial for an offence for which accused has been pardoned – S36(10) CFRN
13. Right to remain silent – S36(11) CFRN
14. Right to be tried only for an offence known to law – S36(12) CFRN

1. RIGHT TO FAIR HEARING S36(1), (2) & (4) CFRN

➢ Fair trial must be in public within a reasonable time by a court/tribunal
➢ Fair hearing like issue of jurisdiction can be raised at any time of the proceedings even on
appeal and the court must urgently entertain it before proceeding with the trial- Babalola
v Oshogbo Local Government.
➢ Right to fair hearing cannot be said to have been waived by the parties as it is fundamentally
guaranteed by the CFRN- Jang v INEC, Nwokoro v Onuma.
➢ The crux of fair hearing is on the procedure leading to the determination of the case and
not on the correctness of the decision-Orugbo v Una.
➢ Fear hearing is AKA principle of natural justice. Encapsulated in two maxims;

• Audi alteram partem (hear both sides)

 He must not only be heard but be afforded the opportunity to be defended in person or
by a LP of his choice.

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 A party who denies fair hearing at a trial must prove specific act(s) not agglomeration
of conducts that are merely cosmetic Tobi JSC in Ejeka v the State.
 In Akabueze v. FRN, that where the court or tribunal denies the accused person the
opportunity to engage a counsel of his choice, this amount to denial of fair hearing.
However, this right does not state that the defendant must be heard at all cost. An
accused person who failed to use the opportunity cannot complain on appeal.
 No breach where a party is given every opportunity but he refuses to appear. See
Akinkotun v NBA. (2006) All FWLR pt 333, 1720
 In NBA v. Akinkotun, the Legal Practitioners Disciplinary Committee held that the
audi alterem partem rule is not breached if the appellant was given adequate
opportunity to appear and present his case or defence to the case against him but he
chose not to avail himself of the opportunity.

➢ Nemo judex in causa sua (person shall not be a judge in his own case)
• Justice must not only be done but be seen to be done i.e., not whether the judge is
bias but whether a detached by-stander will observe and give an impression whether
judge was bias or not. See Azokwu v. Nwokanma
• The appellate court in deciding bias is guided by the circumstances from which a
reasonable man is likely or probable that a judge was or was not bias. see Tulu v
Bauchi NA, Effiom v State
• The judge/adjudicator must have no relationship with the subject matter or outcome
of the proceeding Garba v Unimaid
• no delay, no partiality, he must be heard.

2. RIGHT TO TRIAL IN PUBLIC (PUBLICITY OF TRIAL) S36(3) & (4) CFRN

In Edibo v. State, the court held that arraignment and taking of plea of an accused person in the
judge’s chamber is unconstitutional.
Exceptions:
Constitutional:
• 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 S36(4)(a)
CFRN
• 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 S36(4)(b) CFRN
Statutory:
• Express provision of statute that trial should not be open to the members of the public.
E.g., sexual offences; offences under the Prevention of Terrorism Act; offences relating
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to Economic and Financial Crimes; Trafficking in persons as provided under S232(1)

& (4) ACJA.
• Where juveniles are tried, proceedings are not opened to the public S6(5) CYPL Lagos
State also S36(4)(a) CFRN. The identity of the child or young person shall not be
published except where the law permits it. S6(6) CYPL Lagos State.
• Section 13(1) Recovery of Public Property Special Military Tribunal Decree 1984
excludes public.
• The public may be excluded on grounds of public policy, public decency or expediency.
See S201 ACJL Lagos, S259(2) ACJA.
• Where the evidence of a person who has not attained the age of 17 years is to be heard
in relation to offence against morality Ss 202 ACJL, 260 ACJA.

3. RIGHT TO BE TRIED WITHIN REASONABLE TIME (SPEEDY TRIAL) S36(4) CFRN

A defendant person is entitled to trial within a reasonable time - Okeke v. State. Reasonable time
is the time that will make the judge not forget the evidence given by witnesses.

In Effiom v State, the court held that the following factors must be taken into account in
determining whether there was unreasonable delay:

• Length of the delay

• Reasons for the delay
• Accused person assertion of his right
• Prejudice to the accused

In Effiom’s Case, the trial of the accused lasted for 6 years before he was convicted, but the court
held that the majority of the adjournments in the trial were inevitable for the just decision of the
case and much of the delay was beyond the control of the trial court. Thus, even if it was concluded
that there was delay in the trial, cogent reasons were advanced to explain them. Neither the
prosecution nor the learned trial judge could be blamed for the delay which itself was not
unreasonable having regard to circumstances of the case. Proof of unreasonable delay is not
sufficient to nullify conviction unless the delay led to miscarriage of justice - Asakitipi v. State.

Speedy Trial under the ACJA

S110 ACJA, provides for trial to commence within 30 days and close within 180 days and where
it is completed, the file is to be forwarded to the CJ stating reasons for failure to either commence
or complete the trial.

Also, S396 ACJA makes trial of criminal cases to be on a day-to-day basis. There shall be no
more than 5 adjournments at the instance of any party where day to day proceeding is
impracticable. Where parties have exhausted the 5 adjournments and it is impracticable to
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conclude the trial, the interval between one adjournment and the other shall not be more than 7
days inclusive of weekends.

In all circumstances, the court may award reasonable costs in order to discourage frivolous
adjournments. As a form of remedy, the judge may order sentence to run from the period of
detention in order to balance the interest. Also, the Chief Judge may release awaiting inmate.

4. RIGHT TO PRESUMPTION OF INNOCENCE S36(5) CFRN

In Abdullahi v. State 6 (2005) All FWLR (Pt. 263) 698, the court held that by the presumption of
innocence of an accused person as conferred by Section 36(5) of the 1999 Constitution, the policy
of our courts is to be willing to discharge 10 (ten) criminals rather than to convict one (1) innocent
person by mistake or error.

The accused is presumed innocence until the contrary is proven, Tulu v Bauchi NA. S36(5) CFRN

The grant of bail is also on the right to presumption of innocence - Ikhazuagbe v. Commissioner
of Police.
The judge should also not say or write anything suggesting a presumption of the guilt of the
defendant - Okoro v. State.
In Olawoye & Ors v. Commissioner of Police, an application for bail was refused by both the
Magistrates Court and High Court on the ground that the offence of cultism was rampant. This
was held to be a breach of the right to be presumed innocent.

The burden is on the prosecution to prove all essential ingredients of an offence S 135(2) & 139(1)
EA and the standard is beyond reasonable doubt S139(2) EA.
The defence of the defendant must be properly considered however weak or fanciful or bereft with
lies as they may appear to be. See Agbiti v. Nigerian Navy.
Any doubt raised in the mind of the Court must be resolved in the favour of the defendant. See
Tulu v Bauchi N.A, Okoro v The State.

EXCEPTIONS: The burden of proof shifts to the defendant in the following situations;
1. Burden shift to the defendant to disprove an allegation where prosecution discharges same
S135(3) EA. In Okoro v. State, the court held that it is the duty of the prosecution to prove
the guilt of the accused person beyond reasonable doubt. However, once the prosecution
discharges the burden placed upon it by the constitution, the burden shifts to the accused
(not to prove his innocence) but to disprove the allegation. Where he fails to do this and
the trial court finds the case of the prosecution sufficiently proved to the prescribed
standard, the presumption of innocence hitherto enjoyed is displaced and the accused will
be convicted and given the appropriate punishment.
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2. The burden is on the accused to prove any defence(s) he wishes to raise at his trial. E.g.,
insanity section 27 Criminal Code, intoxication etc as he is naturally presumed to be of
sound mind also S139(3)(c) EA on intoxication and insanity. Inyang v The State, Idowu
v The State, Upetire v AG Western Nigeria, Ansa v. The State (1988) 3 NWLR pt. 83
p. 386 at 400 or defences of provocation accident or self-defence. See also Okom Edoho
v. State (2020).

3. It is common for statutes to impose burden of proving particular fact on the accused. See
Section 417 of the Criminal Code, Sections 145, 146 and 168 of the Custom and Excise
Management Act. See Chairman of Board of Customs & Excise v. Baye (1960) WNLR
178, EBIRI v. Board of Customs and Excise (1965) NMLR 35, see also Section 6(3) of
the Recovery of Public Authorities (Special Military Tribunal) Decree No. 2 of 1984,
see Section 7 of the Road Traffic Act. Simi Johnson v. COP (1960) WRNLR 118.

In Chairman of Board of Customs & Excise v. Baye, the accused had been charged with
knowingly and with intention to defraud the government of the duty payable therein,
acquired possession of certain dutiable goods which had not been paid for, contrary to
section 145(a) of CEMA. She alleged that she didn’t know whether the duties had been
paid on the goods or not by the person from whom she had bought. She also stated that she
did not know that the goods were dutiable. Held: once it was shown that dutiable goods
were found in her possession, a prima facie case was made out against her, that she
knowingly with intent to defraud the government of the duties possessed the goods. The
burden was therefore on her to explain to the court that duty had been paid on the goods or
that having acquired them in the ordinary course of business, she did not know that duty
had not been paid.

In Ebiri v Board of Customs & Excise it was held that the combined effect of some of
the provisions of CEMA is that where a customs officer finds a person in any part of
Nigeria in possession of dutiable imported goods and such person is charged under section
145 of CEMA, the onus of proving either that the duties have been paid or absence of
intent to defraud customs of duties payable is on that person.

Other examples of where statute-imposed burden of proof on the accused are section 60 of
the Pharmacy Act applied by the court in Queen v Ohaka

Under section 6(3) of the Recovery of Public Property (Special Military Tribunals)
Decree No.2 1984 where the prosecution has established a prima facie case against the
accused person “The onus of proving that there was no unjust enrichment contrary to any
of the provisions of section 1 of the Decree shall lie upon the public officer or any person
concerned”

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In Simi Johnson v COP. Accused was charged with driving without a valid driver’s
licence contrary to section 7(1) of the Road Traffic Ordinance. She had a learner’s
permit, she also claimed to have passed the driving test but was yet to obtain the driver’s
licence at the time she was caught driving. The proviso to section 7(1) exempted the
holders of drivers permit where such driver was driving accompanied by a licenced driver,
driving within the period on a highway specified by the permit. The appellant failed to
establish that the requirements listed under the proviso were met. Accordingly, she failed
to discharge the onus imposed on her to prove exemption.

4. Where a fact is within the exclusive knowledge of the accused. Such accused has the
burden of proving it. See Section 140 of the Evidence Act 2011. When any fact is
especially within the knowledge of any person, the burden of proving that fact is upon him.

Otti v. IGP (1966) NNLR 56 he was charged with the offence of carrying out money
lending business without a money lender’s licence. Prosecution showed that he carried out
the business. However, no evidence adduced that he had no licence. He also did not adduce
evidence that he had a licence. It was held that burden was on him to show that he had
licence because it was a fact within his exclusive knowledge.

Rahman v. COP (1973) NNLR 87 was a case where the A charged with cheating (similar
to section 419CC). He approached Hamdala Hotel posing as a pilot of an Air Line (Pan
Air). On the basis of the arrangement between the Hotel (Hamdala) and the Airline to house
and feed their pilots & cabin crew, he was accommodated & fed by the hotel. During the
trial, evidence was not adduced by the prosecution to show that he was not a pilot employed
by Pan Air. It was held that burden of proving that he offered no evidence that he was
employed by Pan Air was on him because it was a fact within his exclusive knowledge.

See also Akhidime v. State (1984) NSCC 588, Odu v. State (2000) 7 NWLR pt. 588
p.283

Note (exception): that where a particular fact is within the knowledge of the accused and the
prosecution, the burden of proving such fact is on the prosecution. In Joseph v IGP. The accused
was charged for unlawful procession contrary to section 38(a) of Police Ordinance. There was
no evidence on whether the accused obtained a licence or not to embark on the procession. The
duty to issue the licence was that of the prosecution i.e., the police which was consequently in a
position to know if a licence was issued or not. The accused also was in a position to know if he
had a licence or not. Yet no evidence was forthcoming from either side on whether there was a
licence or not. Held: that the fact was not within the exclusive knowledge of the accused but mutual
knowledge of both the prosecution and the defence. Not duty on the accused to prove the fact.

Exception to the rule above S139(3) EA, defence of intoxication, insanity, facts within the accused
personal knowledge. See Okoro vs State, Eyu vs State, Uso vs State, for not given effect to the
presumption by the court,

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5. RIGHT TO BE INFORMED OF THE CRIME ALLEGED S36(6)(a) CFRN

Person charged with criminal offence shall be Informed promptly of the offence in the language
he understands the nature of the offence

In Yahaya v. State, the Supreme Court held that the trial and conviction of the appellant was a
nullity for failing to comply with Section 36(6) (a) CFRN.

Inform the accused prior to the trial, i.e., upon arraignment before plea. This in contrast with S35(3)
CFRN (arrest/detention by the police) constitution provides for arrest and detention of accused to
be informed within 1 day & tried arraigned within 2 days.

Note an accused charged of greater offence may be convicted of lesser offence; S228 ACJA, S235
ACJL Kano, S211(1) ACJL Lagos, Adava v. The state (2006) All FWLR pt 311 at1777, Okeke
vs State.

In Adava v. State, the accused persons who were charged and convicted for homicide punishable
with death. At the Supreme Court, their appeal was allowed and they were convicted for a lesser
offence of voluntarily causing hurt without provocation. The rationale is that where an accused is
charged for a grave offence, he is deemed to have notice of the lesser one.

Where an accused is charged for an offence, he may be convicted of a lesser offence where the
facts proved cannot earn him a conviction on the offence charged. He needs not be informed of
the lesser offence. He is deemed to have had notice of it because he had notice of the greater
offence for which he was charged. This is the case of Nwachukwu v. The State (1985) 2 NWLR
27, Maja v. The State (1980) -1 N.C.R. 212.

The effect of the foregoing principle is that it is no violation of the fundamental human rights not
to inform the accused of lesser offence for which he is convicted if he is informed of a graver
offence. See Uguru v. State [2002] 4 S.C.N.J. 282.

Also, an accused can be convicted of another offence by which he was not charged based on the
evidence disclosed at trial without calling him to make a fresh plea. In Nwachukwu v. State, the
accused was being tried for armed robbery. At the end of the trial, the offence was not proved but
he was convicted of robbery. The accused appeal was dismissed. The ingredient of offence for
which the accused is to be convicted must be contained in the evidence of the offence for which
he is been tried.

Failure to comply with this provision renders a trial/conviction a nullity Yahaya v. State.

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6. RIGHT TO ADEQUATE TIME AND FACILITIES TO PREPARE FOR DEFENCE

S36(6)(b) CFRN
The court should grant adjournment to the accused to either obtain the service of a counsel or to
call his witness in defence of his case.

In Udo v. State, the appellant was arraigned for the murder of his mother. In the course of the trial,
the defence counsel wrote a letter to the court asking for an adjournment on the ground that he was
involved in another murder case before another High Court Judge. The learned trial judge refused
the application for adjournment. On that day that counsel was absent, two vital witnesses testified.
Ultimately, the appellant was convicted and sentenced to death. The Supreme Court held that the
denial of adjournment for counsel to appear and represent the appellant amounted to denial of right
to counsel. It allowed the appeal and ordered a retrial.

Defendant to be given adjournment in murder case in the absence of his counsel is his
constitutional right,

Where accused witness is absent the accused can be given adjournment on the following grounds
upon showing;

 The witness is material

 The accused is not guilty of procuring the witness or neglect
 Showing reasonable expectation of procuring the witness at next adjourn date see Yanor
v State

Adjournment can be refused to the accused where the case is not capital in nature and no reasonable
explanation for the absence. Adjournment by the court here is discretionary but must be exercise
judicially and judiciously Omega v State, Shemfe v Police.

7. RIGHT TO COUNSEL S36(6)(c) CFRN

Right of accused to defend himself in person or by legal practitioner of his choice S36(6)(c) CFRN

A legal practitioner is a person who is entitled to practice generally having been called to the
Nigerian bar and enrolled in the register of legal practitioner kept by chief reg of SC Or a person
entitled to practice by virtue of his office especially officer of AGF’s office. Or entitled to practice
by warrant i.e., entitled to practice in other country permitted by CJN to represent a person in a
particular proceedings before the Nigerian court

In Uzodinma v. COP, where an accused was denied legal representation before an Area court
based on Section 28 Area Court Edict and Section 390 CPCL, the Supreme Court held that the
above provisions being inconsistent with the provision of the constitution were void.

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In Udo v. State, the appellant was arraigned for the murder of his mother. In the course of the trial,
the defence counsel wrote a letter to the court asking for an adjournment on the ground that he was
involved in another murder case before another High Court Judge. The learned trial judge refused
the application for adjournment. On that day that counsel was absent, two vital witnesses testified.
Ultimately, the appellant was convicted and sentenced to death. SC held that the denial of
adjournment for counsel to appear and represent the appellant amounted to denial of right to
counsel. It allowed the appeal and ordered a retrial.

However, the legal practitioner must be that which does not suffer any legal disability. Section 2
of Legal Practitioners Act gave definition of a legal practitioner. Senior Advocates of Nigeria are
not to appear before an inferior court (Magistrate, Area and Customary court). See Registered
Trustees of ECWA v. Ijesha, it was held that a counsel who is not qualified to apply for a process
in the inferior Court or disqualified from appearing in such a Court cannot be briefed to appear in
that Court. Therefore, the Senior Advocates of Nigeria (Privileges and Functions) Rules
excluding a SAN from right of audience in the inferior Court (Area Courts inclusive) by the
combined interpretation of Rules 2 and 3 against the background of Rules 4 and 6 of the Rules,
is a clear qualification to Section 33(6) (c) of the 1979 Constitution and that such exclusion does
not in any way negate the fair hearing enshrined in the constitution.

Also, the right to counsel of choice is subject to the relevant immigration laws. In Awolowo v.
Minister of Internal Affairs, the appellant was charged for a capital offence of treason. He sought
for the services of a foreign counsel but the foreign counsel was denied entrance into Nigeria on
grounds that he did not comply with the relevant immigration requirements, the appellant instituted
this action for the enforcement of his fundamental right to representation by counsel of his choice.
The court held that there was not denial of right to counsel as the right to a foreign counsel is
subject to the relevant immigration requirements.

Accused right to counsel has to be made known to the accused by the court as it is not waivable
Ariori v Elemo, Okon v State, Ogboh v FRN.

The general rule is that the defendant charged with a capital offence shall not be allowed to
represent and defend himself - S 349(6)(b) and 267(1) ACJA, Okotobo v State. However,
pursuant to S267(4) ACJA, the defendant can elect to defend himself in person after being
informed of the mandatory requirement of being represented and the court informs him of the risks
of defending himself in person. Where the defendant elects to defend himself in person, it is not a
ground to void the trial.

Where a person is charged with a capital offence, the State shall be represented by a Law Officer,
or legal practitioner and if the defendant is not defended by a legal practitioner, the Court shall
assign a legal practitioner for his defence- S259 ACJL.

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Where an accused cannot afford the services of a legal practitioner, application can be made to the
Director-General of the Legal Aid Council and a counsel will be assigned to such accused upon
fulfilment of the condition precedents. Where an accused appears in court without a counsel, he is
entitled to be informed by the court of his right to defend himself personally or through a counsel
of his choice- Ss. 349(6)(a) and 267(1) ACJA.

8. RIGHT TO EXAMINE WITNESSES S36(6)(d) CFRN

S36(6)(d) CFRN provides that an accused person has a right to call his own witnesses to testify
on his behalf. Also, the accused has the right to cross-examine the prosecution witnesses. The right
to cross-examine prosecution witnesses is not at the end of all witnesses’ testimonies but one after
the other.

In Idirisu v. The State, (1968) NMLR 88, the counsel for the accused applied that a medical
officer who made a report which had been received in evidence in a charge of culpable homicide
be called as a witness. The Court rejected the application on the ground that the interest of justice
would not be served by an adjournment of the case to enable the doctor be called as a witness. The
Supreme Court, inter alia, held that when a request is made by an accused person for the maker
of a statement such as is now in point to be called as a witness, such application should not be
lightly refused.

After examination-in-chief of the first witness, the accused will then cross-examine that witness.
In Tulu v. Bauchi Native Authority, the trial court after the evidence of the prosecution witness
did not allow the accused to cross-examine the witness but put some questions to the witness. SC
held the trial a nullity.

There are three categories of examination of witnesses in criminal trials to wit; Examination-in-
chief, Cross- examination and re-examination- Ss. 214 and 215 EA.

S214: Examination-in-chief, Cross-examination and Re-examination

(1) The examination of a witness by the party who calls him shall he called examination-
in-chief

(2) The examination of a witness by a party other than the party who calls him shall be
called cross-examination.

(3) Where a witness has been cross-examined and is then examined by the party who called
him, such examination shall be called re-examination.

215: Order and Direction of Examination

(1) Witnesses shall be first examined-in-chief then, if' any other party so desires, cross-
examined, then, if the party calling him so desires, re-examined.
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(2) The examination and cross-examination must relate to relevant facts, but the cross-
examination need not be confined to the facts to which the witness testified on his
examination- in-chief.

(3) The re-examination shall be directed to the explanation of matters referred to in cross-
examination and if a new matter is, by permission of the court, introduced in re-
examination, the adverse party may further cross-examine upon that matter.

NB: Where a witness after examination in chief does not come back for cross-examination, the
counsel at the other side is expected to make an application to the court to discountenance the
testimony and strike it out.

Limits/Exceptions:

Defendant or his Counsel not allowed to ask irrelevant questions or questions ask to harass a
witness- S224-226 EA.

9. RIGHT TO AN INTERPRETER – S36(6)(e) CFRN

Defendant is entitled to have, without payment, the assistance of an interpreter if he cannot

understand the language used at the trial.

It is the duty of the defendant/counsel to promptly inform the court that he does not understand the
language of the court which is English language or the language of the witness(es) Gwonto v The
State.

Where the accused person failed to do so, he cannot complain on appeal about that unless he can
prove positively that the failure to interpret the proceedings to him had occasioned miscarriage of
justice – Bayo v. FRN

The right to an interpreter cannot be raised for the first time on appeal unless such right was denied
the accused at the trial. See Udesen v. State. The legal practitioner representing the accused is to
raise the issue of an interpreter at the trial court and not on appeal. It can only be raised on appeal
if it was denied at the trial court.

In Onyia v. State where the accused person as well as the witnesses who testified in the case
testified in Igbo Language. SC held that interpretation in such circumstance was not necessary. It
held that although the right to an interpreter is a constitutional right, the procedure may however
be dispensed (waived with the consent of the court and defendant) with where the accused so
wishes and the trial judge is of the opinion that the accused does not require any interpretation of
the proceedings.

The interpreter must be competent enough Ajayi v. Zaria Native Authority. The interpreter must
be accurate and comprehensive in his interpretation of the proceedings of the court to the accused
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Zaria Native Authority v. Bakari. He must interpret everything said by the witnesses,
complainant and the court.

10. RIGHT AGAINST TRIAL UPON RETROACTIVE LEGISLATION AND HEAVIER

PENALTY – S36(8) CFRN

S36(8) CFRN provides that no person shall be held 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.

Under this right, there are two limbs:

1. At the time of act or omission, no law creating such offence but subsequently a law is
enacted to punish such act or omission. The constitution says that in that circumstance, no
person can be said to have committed an offence – Egunjobi v. FRN.

2. The second limb is that if the offence was punishable with a fine as at the time it was
committed but subsequently an act was enacted making the punishment imprisonment, the
constitution says a person can only be sentenced to a fine.

11. RIGHT TO ONE TRIAL FOR ONE OFFENCE – RIGHT AGAINST DOUBLE
JEOPARDY – S36(9) CFRN

No person who shows that he has been tried by any court of competent jurisdiction or tribunal for
a criminal offence and either convicted or acquitted shall again be tried for that offence or for a
criminal offence having the same ingredients as that offence save upon the order of a superior
court. S. 36(9) CFRN, 173 ACJL & 238 ACJA.

Prohibition of double jeopardy- defendant can plead autre fois acquit or convict. R v. Jinadu

Note the proviso- Order of Superior Court, Court Martial. See Chief of Air Staff v. Iyen (2005)
All FWLR (pt. 252) p. 404 meaning that a superior court can order it.

The right is also known as ‘autre fois convict’ or ‘autre fois acquit’ or ‘bar plea’. The plea cannot
be raised on appeal after conviction- Edu v COP. The appeal court has the power to order for a
fresh trial before a different court where the judge of the superior court is of the opinion that there
is a miscarriage of justice from the trial court.

Essential Elements of the Plea-

• First trial must have been on a criminal charge- R v. Jinadu (1948) 12 W.A.C.A. p. 368
• Must be by a court of competent jurisdiction- R v. Hodge; Chief of Air Staff v Iyen
• Must have ended with conviction or acquittal;

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• Must be same offence or one he could have been convicted of earlier, although he was not
charged with it.
• Must have same elements and where the defendant fails to prove each of these elements,
the plea cannot avail him- FRN v. Nwosu (2016) 17 NWLR (pt. 1541) p. 226 @294- 295

12. RIGHT AGAINST TRIAL FOR AN OFFENCE FOR WHICH ACCUSED HAS BEEN
PARDONED – S36(10) CFRN

No person who shows that he has been pardoned for a criminal offence shall again be tried for that
offence.

The right to pardon is the express right of the President and Governor – Ss175 and 212 CFRN.

In Falae v. Obasanjo (No 2), the court held that a pardon is an act of grace by the appropriated
authority which mitigates or obliterates the punishment that attaches to the offence for which the
person was convicted. Pardon may be granted conditionally or unconditionally. Pardon
presupposes conviction. If already convicted and subsequently pardoned he cannot be referred to
as an ex-convict again.

The effect of pardon granted to a convicted person is that it approbates the incident of conviction
and it is deemed that the beneficiary has never committed an offence. The proof of pardon is by
producing an instrument of pardon granted by the President or Governor called certificate of
pardon- Okongwu v State. Onus is on the person relying on it-Okongwu v State.

Pardon is different from amnesty, in that in amnesty, the persons involved have committed an
offence and the state decides not to prosecute them on the agreement that they would not commit
the offence again.

A pardoned person cannot be called to bar- Okonkwo v. Council of Legal Education

13. RIGHT TO REMAIN SILENT – S36(11) CFRN

No person who is tried for a criminal offence shall be compelled to give evidence at the trial.

S181 EA provides that in any criminal proceeding, where a defendant has not given evidence, the
court, the prosecution or any other party to the proceeding may comment on the failure of the
defendant to give evidence but the comment shall not suggest that the defendant failed to do so
because he was, or that he is, guilty of the offence charged.

Court may draw such inferences as it deems just. Sugh v. The State; Garba v State (1997) 35
SCNJ p. 68

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Accused can decide to exercise this right when called upon to open his defence. However, where
he elects not to give evidence, he must accept the responsibility for his action as inferred from his
own conduct in the prevailing circumstances- Mbang v State (2007) All FWLR (pt. 372) p. 1862

The accused needs to be cautious when exercising this right, especially where an explanation from
him could make a difference- Igabele v State (2006) All FWLR (pt. 311) p. 1797

Drafting of an oral application not offending S181 EA

My Lord, it is on record that the prosecution called 5 witnesses to prove beyond reasonable doubt
the guilt of the accused. My Lord, it is on record that particularly PW3 gave an eye witness record
that he saw the accused stab the victim to death. My Lord, it is also on record that the accused did
not make any statement as to his defence. My Lord, we humbly urge the court to hold that the
prosecution proved its case beyond reasonable doubt.

14. RIGHT TO BE TRIED ONLY FOR AN OFFENCE KNOWN TO LAW – S36(12) CFRN

S36(12) CFRN provides that subject as otherwise provided by this constitution, a person shall not
be convicted of a criminal offence unless that offence is defined and the penalty thereof is
prescribed in a written law.

Aoko v. Fagbemi (1961)1 All NLR p. 400 – Charged, tried and convicted for adultery in the
south. Conviction quashed.

A-G Fed v. Isong (1986) 1 QLRN p. 75 – No penalty section, Unlawful possession of firearms
and ammunition. Offence must be defined in a written law, which also prescribes the penalty for
the offence.

It is important to note that the offence must be one known to law as at the time of commission. See
the cases of Olieh v F.R.N. (2005) All FWLR (pt. 281) p. 1746; George v F.R.N (2014) All
FWLR (pt. 718) p. 879; Oladimeji v State (2002) FWLR (pt. 131) p. 2004

The provisions of S36(12) also apply to the court martial. In Asake v. Nigerian Army Council,
where the appellant had borrowed money from his subordinate. He had been charged and convicted
for the offence of misconduct to the prejudice of military discipline. The Court of Appeal held that
offence of borrowing money from subordinate was not defined in law and penalty provided
thereof.

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9.0 TRIAL 1: ATTENDANCE OF PARTIES AND ARRAIGNMENT

SOME PRE-TRIAL ISSUES

DUTY OF COUNSEL AND COURT IN CRIMINAL TRIALS

DUTY OF PROSECUTING COUNSEL:

(a) He is to be fair and impartial. His interest primarily is to present the facts as they are, to see
that justice is done and not to secure a conviction. Thus, it is not proper for a prosecuting counsel
to insist on the maximum punishment being imposed on the accused person Enahoro v. The State
(1965) 1 All NLR 125. In R. v. Sugarman (1936) 25 Cr. App. R. 109, the Criminal Appeal Court
held "the business of the state counsel is fairly and impartially to exhibit all the facts to the jury.
The crown has no interest in procuring a conviction but that the right person be convicted. Where
a counsel refuses to rely on the real strength of his case and thinks he can strengthen it by things
collateral in a manner contrary to the law, he only weakens his case and may prevent a verdict
which ought to be obtained".

In this case, questions were put to the accused on cross examination to show that he received other
stolen goods not in issue and no evidence was adduced. The appellate Court quashed the conviction
on this ground.

(b) He shall not withhold the existence of any adverse decision on a point of law favourable
to the accused. In Anani v. R (1951) 13 W.A.C.A. 196 the Court held that a counsel can do any
of the following where an adverse decision exists: (a) if the previous decision is by a lower Court,
he may invite the Court to overrule it, (b) if by a Court of coordinate jurisdiction, it is open to him
to distinguish the previous decision. In the case counsel insisted on a submission which he had
personally made in a previous case and had been rejected. He did not refer to the existence of the
previous authority.

(c) Duty to make available to the accused person evidence favourable to him The State v
Odofin Bello (1967) NMLR 1, Rule 37(6) RPC 2007.

Summary:
• To assemble facts, compile the proof of evidence, materials and exhibits relevant to the
case for filing in court;
• To interview witnesses and prepare them for trial;
• Be a prosecutor not a persecutor Rule 37(4) RPC, R. v Sugarman;
• Be fair and impartial Enahoro v The State;
• Not to withhold the existence of adverse facts or court decisions favourable to the defence
Anani v R, Dariye v FRN [2015] 10 NWLR (Pt. 1467) 325 at 355;
• Make available to the defendant evidence favourable to him The State v Odofin Bello

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DUTY OF DEFENCE COUNSEL:

(a) He has a duty not to return the brief of person charged with a capital offence R v
Uzorukwu (1958) 3 FSC 14 and he shall also undertake the defence of an accused not withstanding
his personal opinion on the guilt of the accused person so that innocent persons are not convicted
without having the benefit of the available defence to them by the law Rule 37(1)(2) RPC 2007.

(b) He must undertake the defence of a person charged with an offence - particularly a capital
offence with reasonable skill and attention. In Sunday Udofia v State, the accused was charged
with murder - matricide. During the trial, the counsel assigned to defend him was absent on seven
occasions - during the presentation of the prosecution's case and on three occasions during the
presentation of the defence. He neither cross-examined the prosecution witnesses nor extracted
any evidence from the appellant. The case was later assigned to another counsel. Worse still, the
counsel simply rested his case on that of the prosecution. The appellant was convicted. But the SC
ordered a retrial. This is what Justice Oputa (JSC) said at p. 539: In every culture, the crime of
matricide is shocking, revolting and a bit unnatural. Normal people do not go about killing their
own mothers. Was the appellant insane? Why did he commit such a heinous and unnatural crime?
What were his reasons if he was capable of reasoning? These are some of the compelling questions
which should normally and naturally suggest themselves to the average lawyer called upon to
handle the defence in a case like this. Unfortunately, the counsel did none of these things.

NB: it is not ideal nor professional for the defence counsel moreso in a murder case to threaten
withdrawal simply because he does not know who will pay his fees. In Udo v The State, the
counsel assigned to the accused threatened withdrawal from the case. He was unsure of who would
pay his fees. But to worsen matters, when he was asked to address the Court, he simply said he
would leave the matter to the Court. But much within expectation, the SC strongly rebuked this
attitude. The Court felt such conduct was unbecoming of a gentleman at the Bar and it was even
honour in itself to be invited by the State to defend an accused person per Kayode Eso (JSC).
• Defend the accused diligently Sunday Udofia v. State, Udo v. The State;
• Not to return the brief of the defendant charged with capital offence. Rule 24 RPC, (Cab
rank rule), R v. Uzorukwu [1958] 3 FSC 14;
• He should not reveal the secret of his client- Rules 19(2) and 21(1) RPC.
• He should not be a witness in a case in which he is handling. He should not personally
depose to affidavits.
• He should not conjure facts or manufacture evidence.
• He should prepare adequately for the case.
• Be in court always.

DUTY OF THE PRESIDING JUDGE:

A judge sitting over a Criminal case should always appreciate that he is an umpire and as such
should never enter into the arena of conflict - so that he does not have a befogged vision of the
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case. The law allows a judge, to put questions to the witnesses or even call witnesses. But they
must be directed towards a purpose. It must be for the just determination of the case S246 EA. For
the accused is always presumed innocent until proved guilty subject only to permitted
circumstances S36(5) CFRN; S135(1) EA.

The cumulative effect of the foregoing is that a judge must also bear in mind the need to allow the
accused enjoy the benefit of any doubt as to his guilt where it exists. He should not take over the
prosecution of the case from the prosecution. He must not become a "Hippy Harliet". He must
not talk too much. In Uso v. The Police (1972) 11 S.C. 37; Okoruwa v. The State [1975] ANLR
262 The trial Magistrate and judge respectively talked too much; they took over the prosecution
of the cases; asked damaging questions from the accused and relied on the evidence therefrom in
convicting the accused persons. The SC held that those convictions could not stand because the
judges became inquisitors; they did not allow the prosecutions to prove the guilt of the accused
beyond reasonable doubt. Since this was fundamental, the accused persons were discharged and
acquitted Onuoha v. The State; Ayub-Khan v. The State.

Summary:
• Not to be partial but be fair. Mohammed v. Nigerian Army
• Not to be a “hippy harliet”- Uso v. The Police, Okoruwa v. The State
• Allow the defendant to enjoy the benefit of doubt as to his guilt – Onuoha v. The State

DUTY OF COURT REGISTRAR

• Prepare a cause list
• keep courts file and records;
• Accept documents for filing;
• Ensure all documents and processes are served and brought to the attention of the Judge on
the day of trial;
• Prepare records of court proceedings and make same available to parties;
• To interpret proceedings or arrange for interpreters;
• He is to administer oaths/affirmation on witnesses,
• He is to read the charge, receives and mark exhibits and keep the exhibits,
• When death sentence is passed, he is to ensure that a certificate of death is issued and signed
by the judge for onward transmission to the authorities concerned.

SITTINGS OF THE COURT

The court is open for business throughout the year. The court sits at 9:00am – 4:00pm from
Monday – Friday. Saturday, Sunday and public holidays, days within the week of Easter vacation,
and days within annual vacations are non-juridical days. No superior court of record sits on non-
juridical days.

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S40(1) Magistrate Court Law (Lagos) 2009 provides: "The Court shall be opened throughout
the year except on Saturdays, Sundays and public holidays…". S40(2) provides that
notwithstanding S40(1) at least one Court in every magisterial district shall be open and available
for business on any given Saturday for the hearing of matters relating to remand, bail and other
non-custodial disposition. Generally, in practice, court usually sits from Monday to Friday.

Where proceedings are held on Sunday and public holiday - which are dies non juridicus - such
proceedings are invalid, null and void.

However, in Ososami v. The COP 14 WA.C.A. 24, the Magistrate pointed it out to the parties
142 that the day to which the case was adjourned was a public holiday. The appellant urged the
Magistrate to take the evidence of his witness because it might be difficult to procure him another
time. The Magistrate convicted the appellant. He appealed on the basis that the Magistrate sat on
a holiday. It was held that although there was irregularity, since it was done in the interest of the
defence and at its request, no miscarriage of justice could be said to have been occasioned, the
irregularity notwithstanding. Thus, the court may subject to the agreement of the parties, sit on
non-juridical day. Also, in Olu Falae v Obasanjo, it was held that the court on sit on non-juridical
days to hear an election matter.

Also, during annual vacations, there is usually a vacation judge in the HC who hears emergency
cases and other matters that require urgency. In the MCs, at least one Magistrate shall sit in every
Magisterial District for hearing cases of bail, remand and other non-custodial disposition S40(2)
Magistrates’ Court Law of Lagos 2009.

WHAT IS TRIAL?
A judicial examination and determination of the disputing issues between the parties in accordance
with the law.

A full criminal trial will take us through the following processes:

• Preliminary issues to filing of case in court,
• Arraignment,
• Examination-in-chief of witnesses,
• Cross examination,
• Re-examination,
• Tendering of exhibits,
• Address of counsel,
• Judgment,
• Allocutus,
• Sentence and
• Appeals.

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APPEARANCES IN COURT:
The prosecution is to announce appearances first, thereafter, counsel to the defendant is to
announce appearance.

Legal Representation Capital Offences:

There is mandatory legal rep in capital offences S36(4) CFRN, 349(6)(b) ACJA, 263 ACJL
Lagos. Josiah v State, Udofia v State, Adeoye v The State.

NON-APPEARANCE OF PARTIES AT TRIAL:

1. COMPLAINANT (PROSECUTOR):
When the case is called, the defendant appears voluntarily in obedience to the summons or is
brought before the court under a warrant, and the complainant having, to the satisfaction of the
court, had due notice of the time and place of hearing, does not appear in person or in the manner
authorised by a written law, the court may dismiss the complaint except where there is a good
reason by the prosecutor then the court may adjourn Ss 351 ACJA, 232 ACJL Lagos, 351 ACJL
Kano.

2. DEFENDANT:
His attendance in court is mandatory during the whole of his trial Ss 166 ACJA, 208 ACJL Lagos.
In Adeoye v State (1999). The SC held that accused must be present throughout his trial.

According to Ss 352 ACJA, 235 ACJL Lagos, 352 ACJL Kano, when a case is called in which
summons has been issued and the defendant does not appear or pleads guilty under the provisions
of section 135 of this Act (for ACJA not Lagos) and no sufficient excuse is offered for his absence,
then the Court, if satisfied that the summons has been duly served, shall issue a warrant, called a
bench warrant, for his arrest or if not satisfied that the summons has been duly served, the Court
shall adjourn the hearing of the case to some future date, in order that proper service shall be
effected or until the defendant be arrested as the case may be.

EXCEPTIONS:
1. S135 ACJA provides that:
(1) Where a Magistrate issues a summons in respect of any offence for which the penalty
is a fine not exceeding N10,000.00 or imprisonment for a term not exceeding six months
or both, the Magistrate, on application of the defendant:
(a) may dispense with the personal attendance of the defendant where the offence is
punishable by fine or imprisonment or both; and
(b) shall dispense with personal attendance of the defendant where the offence is
punishable by fine only if the defendant pleads guilty in writing or appears and so pleads
by his legal practitioner.

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Note: in Lagos by S41 ACJL Lagos, there is no prescribed term or fine, it is simply at the
discretion of the magistrate if he sees sufficient cause.

2. Where the accused/defendant is interrupting the proceedings in order to make his trial
impossible. Ss S266(a) ACJA, 208 ACJL Lagos.

3. Where an interlocutory application is to be heard, the defendant need not be present in

court. S266(b) ACJA.

4. Where the court suspects the accused/defendant to be of unsound mind and he stands mute
before the court. Ss 278(2) ACJA, 217(2) ACJL Lagos.

5. Where the Court, in exercise of its discretion, has granted bail to the defendant and the
defendant, in disregard for the court orders, fails to surrender to the order of court or fails
to attend court without reasonable explanation, the court shall continue with the trial in his
absence and convict him unless the court sees reasons otherwise, provided that proceedings
in the absence of the defendant shall take place after two adjournments or as the court may
deem fit. S352(4) ACJA, S352(4) ACJL Kano, NO EQUIVALENT IN LAGOS.

Note that under S352(5) ACJA, S352(5) ACJL Kano, NO EQUIVALENT IN LAGOS,
the court shall impose a sentence only when the defendant is arrested or surrenders to the
custody of the court. The court will not impose sentence in the absence of the defendant.

3. BOTH PARTIES:
Ss 353 ACJA, 236 ACJL Lagos, 353 ACJL Kano provides that where the case is called and
neither the prosecutor nor the defendant appears, or the defendant appears and the prosecutor does
not appear, the court shall make such order as the justice of the case requires. The court may, in
the order, include such direction as to the payment of costs as the court considers fit, and the
payment of the costs may be as if it were a fine.

4. MATERIAL WITNESS
Where a material/vital witness is absent in court, the case will be adjourned to another day on the
application of the party calling the witness and upon satisfying the court that the absence of the
witness is not deliberate. The court may compel attendance of witnesses in court through witness
summons or subpoenas.

COMMENCEMENT OF TRIAL
ARRAIGNMENT – SS 211 ACJL, 271(2) ACJA, 273 ACJL Kano, Kajubo v The State
(1988), Ogunye v State (1999); Kalu v State (1998), Yahaya v The State (2002) FWLR (pt. 93)
P. 2044.
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The procedure may be set as follows:

• The prosecutor files the charge at the registry of court and requests for leave (where
required).
• The defendant is brought before the court unfettered.
• The registrar calls the case for hearing.
• The defendant is required to proceed to the dock once his name is called.
• The defendant shall be placed before the court unfettered.
• The Registrar shall read out and explain the info/charge to the defendant and to the
satisfaction of the court.
• The defendant is required to plead instantly to the charge/information (guilty or not guilty).
• Counsel to the defendant cannot enter a plea for and on behalf of his client, the defendant
does it himself R v Pepple 12 WACA 441.
• Where the charge/info is not read and explained to the defendant and his plea taken, the
trial is a nullity IGP v Rosseck [1958] LLR 73 Kajubo v The State [1988] 3 SCNJ (Pt.
1) 79, Udo v The State, Imam v FRN [2019] 8 NWLR (Pt.1674) 197 SC, SS 211 ACJL,
271 ACJA, 273 ACJL Kano.
• The court shall record the plea entered by the defendant Ss 271(3) ACJA, 273(3) ACJL
Kano, Edu v. The State [1986] 5 NWLR (Pt. 42) 530.
• Where several defendants are charged before the Court, each defendant must enter his plea
personally to the charge/information Adamu v The State [1986] 3 NWLR (Pt.32) 865.
• Where several allegations are made against the defendant in a charge/information, each
count/charge shall be read to him and his plea taken Ayinde v The State.
• Where the defendant failed to plead to the charge read to him or stands mute, the court
shall record a plea of not guilty for him or conduct investigation to determine the cause of
muteness – whether it is of malice or an act of God Ss 217 ACJL, 276(3), 278 ACJA,
278(3), 280 ACJL Kano.
• If the defendant’s muteness is out of malice, the court shall record a plea of not guilty for
him and the trial shall continue Ss 215 ACJL, 276(1) ACJA, 278(1) ACJL Kano, Gaji v.
The State [1975] 5 SC 61, Yesufu v The State [1972] 12 SC 143.
• Where the defendant’s muteness is not of malice but visitation of God, his trial shall be
suspended and the defendant released on bail or detained in an asylum. Ss 219 ACJL,
276(4) ACJA, 278(4) ACJL Kano, Karimu v The State [1989], Adams v DPP [1966].
• The defendant may be examined medically to determine his mental state or state of mind
to enable the court decide whether he can stand trial Ss 278(1) ACJA, 219(2) ACJL,
280(1) ACJL Kano.
• If the defendant is deaf or dumb, the court shall obtain his plea in a manner understood by
him, by using sign language, lip reading or writing.
• Where a charge/info is read to a defendant, instead of entering his plea to the charge/info,
he may raise preliminary objection(s) to the charge/info (if any) or to the jurisdiction of

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court. However, S221 ACJA provides that objections shall not be taken or entertained
during proceedings on the ground of imperfect or erroneous charge. See also S158 ACJL.
• After the plea has been taken, the defendant may raise any objection to the validity of the
charge or the info at any time before judgement provided that such objection shall only be
considered along with the substantive issues and a ruling thereon made at the time of
delivery of judgement S396(2) ACJA.
• Quare: what then is the difference between Ss 221 and 396(2) ACJA?
• Failure to comply with the requirements for a valid arraignment renders the whole trial a
nullity. – Kajubo v. State; Ogunye v. State; IGP v. Rossek; Toby v. State.

OPTIONS OPEN TO AN ACCUSED:

1. PRELIMINARY OBJECTION
He may raise a preliminary objection to the jurisdiction of the Court to try him or to a defect in the
charge. His objection shall be duly considered and if upheld, he shall be discharged. However, if
overruled, then he shall be asked to plead.

Where objection to jurisdiction is raised, the court may rule on it before continuing with the trial.

Types:
• Statute barred,
• Pardon,
• Double trial- autre fois acquit or autre fois convict
• Procedural e.g., defective charge
• AG Fed v Abubakar; offence, offender, quorum of court, due process.

Types of pleas the defendant may enter:

• Refusal to plea,
• Plea of pardon,
• Plea of autrefois acquit or autrefois convict,
• Plea of guilty,
• Plea of not guilty,
• Plea of not guilty by reason of insanity,
• Plea bargain.

2. PLEA OF NOT GUILTY S273 ACJA, 212 ACJL Lagos, 275 ACJL Kano.
A defendant who pleads not guilty shall be deemed to have put himself to trial.

3. PLEA OF GUILTY S274 ACJA, 213 ACJL Lagos, 276 ACJL Kano.
S274 of ACJA provides that

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(1) Where a defendant pleads guilty to an offence with which he is charged, the court shall:

(a) record his plea as nearly as possible;

(b) invite the prosecution to state the fact of the case; and

(c) enquire from the defendant whether his plea of guilty is to the fact as stated by the
prosecution;

(2) Where the court is satisfied that the defendant intends to admit the truth of all the essential
elements of the offence for which he has pleaded guilty, the court shall convict and sentence him
or make such order as may be necessary, unless there shall appear sufficient reason to the contrary.

(3) Where the defendant pleads guilty to a capital offence, a plea of not guilty shall be recorded
for him.

• The defendant may withdraw or change his plea of guilty to that of not guilty at any time
before judgment R v Guest (1964) 3 ALL ER 385, Baalo v. FRN [2016] 13 NWLR (Pt.
1530) 400 SC. The charge will be read to the accused and a fresh plea taken.
• The defendant may plead not guilty to the charge but guilty to an offence not charged Ss
214 ACJL, 275 ACJA, R v Kelly [1965] 49 CAR 352.
• The plea of guilty of the accused must be recorded as clearly as possible in the words used
by him. Thus, the plea must be unequivocal and unambiguous Aremu v COP.
• Invite the prosecution to state the facts of the case again (summary of evidence) Osuji v
IGP

Effect of plea of guilty:

The plea of the defendant must not be ambiguous, otherwise the Court shall not convict upon it,
Onuoha v. The Police (1956) NNLR 96.

Facts stated by the prosecution must support the charge to which the defendant has pleaded guilty
otherwise the Court shall not convict, Abele v. Tiv N. A. (1965) NNLR 425.

Where the plea of guilty is inconsistent with any statement made by the defendant either to the
police or in Court, he shall not be convicted on his plea: R. v. The Middlesex Justice Exparte
Rubens (1970) 54 Cr. App. Rep. 183

Where the offence to which the defendant has pleaded can only be proved by expert evidence,
such evidence must be tendered before he can be convicted on his plea, Stevenson v. The Police
(1966); Ishola v. The State (1969), Essien v. The King.

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Where the offence charged is a capital offence, a plea of not guilty shall be recorded
notwithstanding a plea of guilty by the accused, Sanmabo v. The State (1967) N.M.L.R 314; Ss
213 (3) ACJL, 274(3) ACJA 276(3) ACJL Kano.

A plea of guilty may be withdrawn with the leave of Court at any time before conviction but not
after, R. v. The Guest (1964) (3) All E.R. 385.

The defendant may plead not guilty to the offence charged but guilty to another offence. Where
the Court can convict of the other offence, it may with the consent of the prosecution accept this
plea and may proceed to convict the accused on it. If the Court rejects the plea and proceeds to try
the accused on the charge against him, but found him not guilty of that charge, it cannot convict
him of that charge to which he has pleaded guilty, R v Kelly (1965), Wilson v R (1959).

The court may consider the plea to the lesser offence taking into consideration:
• The jurisdiction over the offence
• The prosecutor’s consent

Where the defendant elects to plead to a lesser offence and the court accepts plea, the court
will follow these steps:
1. Inquire of the prosecution as to whether he consents to the plea or not
2. If the prosecutor consents, the court will direct that the prosecution amend his charge to
reflect the lesser offence.
3. Thereafter, the defendant is asked to take the plea again.
4. The court will record plea as nearly as possible in the words used.
5. The procedure will be followed as to a plea of guilty.
6. However, where the prosecutor does not consent, the court will proceed to trial for the
graver offence stipulated in the charge.

NB: If at the end of the trial, the defendant is not guilty of the graver offence but guilty of the
lesser offence pled to, the prosecution will be held to his election and consequently the defendant
will be acquitted and discharged accordingly R v Kelly.

4. FAILURE TO PLEAD DUE TO MALICE OR OTHERWISE Ss 276 ACJA, 215 ACJL

Lagos, 278 ACJL Kano.

S276 ACJA provides that:

(1) Where the defendant, when called upon to plead remains silent or refuses to answer,
the Court shall enter a plea of not guilty on his behalf.

(2) A plea entered under subsection (1) of this section shall have the same effect as if the
defendant actually pleaded to the charge.
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(3) The Court may inquire into the mental state of the defendant, and if the court is satisfied
that the defendant is of sound mind, the court shall proceed with his trial.

(4) Where the court finds that the defendant is of unsound mind, the provisions of this Act
in relation to persons of unsound mind shall apply.

He may refuse to plead to the charge. He shall thereafter be asked by the Court for his reasons.
Where the Court is of the view that those reasons are not valid and the accused still refuses to
plead, a plea of not guilty shall be entered on his behalf and the trial shall proceed Gaji v. The
State, Ss 276 ACJA, 215 ACJL Lagos.

He may stand mute and the Court shall call evidence to determine whether his muteness is of
malice or due to the visitation of God. If the Court finds that his muteness is of malice, a plea of
not guilty shall be entered and the trial shall proceed Yesufu v. The State, and The State v.
Sawyer, Ss 217 ACJL, 276(3), 278 ACJA, 278(3), 280 ACJL Kano.

However, if his muteness is of the visitation of God (e.g., insanity) the trial shall not proceed and
the accused shall be ordered to be detained at the pleasure of the Governor R v Ogor (1961), Ss
217 ACJL, 276(3), 278 ACJA, 278(3), 280 ACJL Kano.

Where the accused is found to be deaf and or dumb, the Court shall further take evidence to
determine whether the accused can be made to understand and follow the proceedings. If so, trial
shall proceed; if not, the accused shall be remanded in custody or released on bail until the
visitation is over, or until the Governor's pleasure is known.

5. PLEA OF AUTREFOIS ACQUIT OR AUTREFOIS CONVICT Ss 277 ACJA, 216 ACJL

Lagos, 279 ACJL Kano

S277 ACJA provides;

(1) A defendant against whom a charge or information is filed may plead that:

(a) by virtue of section 238 of this Act he is not liable to be tried for the offence
with which he is charged; or

(b) he has obtained a pardon for his offence.

(2) Where either of the pleas under subsection (1) of this section is raised in any case and
denied to be true in fact, the court shall determine whether such plea is true in fact or not.

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(3) Where the Court holds that the facts alleged by the defendant do not prove the plea, or
if it finds that it is false in fact, the defendant shall be required to plead to the charge or
information.

(4) Nothing in this section shall prevent a defendant from pleading that, by virtue of some
other provision of law, he is not liable to be prosecuted or tried for an offence with which
he is charged.

The defendant may enter a plea of autrefois acquit or autrefois convict otherwise known as “Bar
Plea” to a charge/information read to him Ss 36(9) CFRN. A man is not to be prosecuted twice
for the same offence.

This issue of this special plea shall be tried by the Court and if found proved, the accused shall be
discharged. If found not proved, the accused shall be asked to enter a plea and the Court shall
proceed with the trial.

The doctrine of autrefois acquit or autrefois convict applies whether the previous acquittal or
conviction is by a local Court or foreign Court, Treacy v. DPP. However, where an accused was
absent and takes no part whatsoever in the foreign proceedings and he does not run the risk of
prison or fine, nor exposed to any true danger or evil or jeopardy in respect of the foreign
conviction, he cannot succeed on the plea of autrefois convict, Keith Williams v. The Queen.

Elements of plea of autrefois acquit or autrefois convict:

• The defendant must have been tried on a criminal charge- R v Jinadu 12 WACA 368.
• The trial must be before a court of competent jurisdiction R v Hodge 6 NLR 56.
• The trial must have ended with an acquittal or a conviction IGP v Marke.
• The offence for which the defendant had been tried must be the same as the new charge or
have the same elements as the new charge R v Noku, R v Edu, DPP v Connelly.

6. PLEA OF PARDON Ss 277 ACJA, 216 ACJL Lagos, 279 ACJL Kano, 36(10) CFRN.
The President or Governor of a State may grant pardon to any person concerned with or convicted
of an offence Ss 36(10), 175 & 212 CFRN, Falae v. Obasanjo.

To prove pardon, the convict may be required to tender certificate of pardon. It is the duty of a
person who has been pardoned to prove it by producing the instruments or certificate of pardon
Okongwu v. State.

An application for pardon is made to the committee on prerogative of mercy. Pardon is usually
granted to a convicted person while amnesty is granted to a person not convicted.

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Pardon is capable of removing any stigma attached to a conviction of an offence and restore the
convict to the position he was before conviction.

7. PLEA OF NOT GUILTY BY REASON OF INSANITY

The defendant may plead not guilty by reason of insanity and the Court shall proceed with trial
and determine:
(a) whether the accused did commit the offence; and
(b) whether he was insane at the time of committing the offence. If the accused is found
not to have committed the offence, he shall be discharged and the Court shall not decide
the issue of insanity.
If he is found to have committed the offence and to be insane at the time of committing it, he shall
be remanded in prison custody until the Governor's pleasure is known, R. v. Ogor

8. PLEA BARGAINING Ss 270 ACJA, 75, 76 ACJL Lagos, 272 ACJL Kano
• It is an agreement between the prosecution and the defendant to settle the case against the
defendant by reducing the charge/punishment subject to the defendant making some
refunds of money or forfeiting some of his properties to the State provided the agreement
receives court’s approval.
• In a plea bargain agreement, the defendant is opting to plead to a lesser charge to get a
lighter sentence. The defendant is requesting for concession from the prosecution.

S494(1) ACJA defines it as:

• A process whereby the defendant and the prosecution work out a mutually acceptable
disposition of the case, including the plea of the defendant to a lesser offence than that
charged in the complaint or information and in conformity with other conditions imposed
by the prosecution, in return for a lighter sentence than that for the higher charge subject
to the Court’s approval.

Types of plea bargaining

• Charge bargain – the prosecutor makes an arrangement to drop some charges made
against the defendant if the defendant is ready to plead guilty to some of the charges made
against him.
• Sentence bargain – the prosecutor agrees to a lesser punishment for the defendant if the
defendant pleads guilty to the charge. For this agreement to succeed, there must be an
alternative punishment to the charge.

Procedure for plea bargain: Ss 75 & 76 ACJL, 13(2) EFCC Act;

• Accused pleads guilty to the charge or part of the charge or to a lesser offence and agrees
with the prosecution to forfeit some of his properties to the State (charge bargain).

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• The accused may be told in advance what his sentence would be if he pleads guilty to the
charge (sentence bargain) S270(4)(b) ACJA.
• The prosecutor may obtain the consent of the victim to enter into plea bargain before or
during the presentation of case for prosecution but not after defence is entered S270(2)
ACJA
• The terms of agreement will be presented to the court and the court enters judgment.
• The agreement may include compensation or restitution.
• The agreement must be in writing and signed by the parties and must contain the fact that
the defendant has been informed of his right to:
(i) remain silent,
(ii) consequences of not remaining silent,
(iii) not to make any confession or admission that may be used in evidence against
him,
(iv) disclosure of the full terms of the agreement.

• The court should not participate in the agreement leading to plea bargain.
• The prosecutor may inform the court of the contents of the agreement with a view of
seeking direction in general terms.
• The prosecutor may inform the victim the contents of the agreement as to the inclusion of
compensation or restitution.
• It is the duty of the prosecutor to inform the court the contents of the agreement.
• The court must confirm the correctness of the agreement from the defendant before
entering it as judgment.
• The court must also confirm from the defendant whether the agreement was entered into
voluntarily.

Plea bargain is usually entered into by the prosecution where:

(a) There is insufficient evidence to prove the offence charged beyond reasonable doubt;
(b) Where the defendant has agreed to return the proceeds of the crime or make restitution to
the victim or his representative;
(c) Where the defendant in a case of conspiracy has fully cooperated with the investigation
and prosecution of the crime by providing relevant information for the successful
prosecution of other offenders;
(d) Where the interest of justice demands that the prosecution should enter into it and that it
will not amount to abuse of legal process to do so.

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10.0 TRIAL 2 (TRIAL PREPARATION AND EVIDENCE)

BURDEN AND STANDARD OF PROOF

BURDEN OF PROOF
The term “burden of proof” has two basic meanings. First, it relates to a burden or obligation of
persuading the court to enter judgment in favour of a particular person. i.e., legal or persuasive
burden. Second, it is used in the sense of the duty to introduce evidence in support or rebuttal of
a specific issue. This is known as evidential burden SS131(1) (2) and 132 EA 2011 respectively.

There are two types of burden of proof in a criminal trial and they are:
• the legal/general burden
• the evidential burden

The legal burden is the duty of a party to prove its case in accordance with the standard prescribed
by law. The legal burden is fixed by law. The evidential burden is the obligation of a party to lead,
introduce or provide evidence to prove a fact in issue. The evidential burden is on the party who
asserts; hence the rule is that he who asserts must prove.

The legal burden doesn’t shift, while the evidential burden could shift in certain circumstances.
The burden of proving that an accused person committed a crime is on the prosecution S135(2)
EA, Woolmington v DPP (1935) AC 462.

This burden never shifts to the accused person except in the following cases:
• Burden of proving reasonable doubt after the prosecution has proved its case beyond
reasonable doubt S 135(3) EA 2011
• Burden of proving defence of intoxication or insanity S 139(3)(c) EA 2011
• Burden of proving facts within the knowledge of the accused S 140 EA 2011
• Special plea of autrefois acquit or autrefois convict.
• Exemptions, exceptions, or qualifications contained in statutes S141 EA
• Burden imposed by statute.
• NB: The burden of proof placed on the defendant may be discharged by evidence from the
prosecution or the defence S139(2) EA

STANDARD OF PROOF
Basically, there are two recognized standards of proof i.e., proof beyond reasonable doubt
s135(1) and proof on the preponderance of evidence or balance of probabilities s134. Whilst
the former standard generally applies to criminal cases, the latter generally applies to civil cases.
Nevertheless, instances exist (exceptions) where the applicable standard of proof in criminal cases
will be of the preponderance of evidence and proof beyond reasonable doubt is insisted upon in
civil cases.
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The standard of proof of criminal defence or exceptions, etc. is on the balance probabilities. See S
137 EA which on standard of proof where burden of proving fact, etc. place on defendant by law
provides that “where in any criminal proceedings the burden of proving the existence of any fact
or matter has been placed upon a defendant by virtue of the provisions of any law, the burden shall
be discharged on the balance of probabilities.”

A useful guideline can be found in dictum of Denning J. (as he then was) in Miller v. Minister
of Pensions (1942) 2 All ER. 372. “The degree is well settled. It need not reach certainty, but it
must carry a high degree of probability, proof beyond reasonable doubt does not mean proof
beyond shadow of doubt. The law will fail to protect the community if it admitted fanciful
possibilities to deflect the course of justice. If the evidence is so strong against a man as to have
only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is
possible but not in the least probable’, the case is proved beyond reasonable doubt, but nothing
short of that will suffice”.

Any doubt is resolved in favour of the defence Bello v State. Contradiction or conflict is also
resolved favour of the defence.

BASIS FOR ADMISSIBILITY OF EVIDENCE IN CRIMINAL TRIALS

ADMISSIBILITY OF DOCUMENTARY EVIDENCE IN CRIMINAL TRIALS Part 5 - Ss

83 -120 EA.
Doc which can establish fact is admissible S83(1) EA. Note conditions in (1)(a)&(b) - if maker
had personal knowledge, if maker called as witness etc.

Note proviso to S83(1)(b) when maker of statement need not to be called as a witness-
• dead,
• unfit by reason of body or mental condition,
• he is outside Nigeria and reasonably impracticable to secure attendance,
• cannot be found.
If court is satisfied that there will be undue delay or expense, can admit statement even if maker is
not called or copy or CTC if no original S83(2) E.A.

S83: Admissibility of documentary evidence as to facts in issue

(1) In a proceeding where direct oral evidence of a fact would be admissible, any statement made
by a person in a document which seems to establish that fact shall, on production of the original
document, be admissible as evidence of that fact if the following conditions are satisfied:
(a) if the maker of the statement either;
(i) had personal knowledge of the matters dealt with by the statement, or

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(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 proceedings:
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) In any proceeding, the court may at any stage of the proceeding, 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 -
(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) Nothing in this section shall render admissible as evidence any 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 initialled 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 tie
the certificate of a registered medical practitioner.

ADMISSIBILITY OF COMPUTER-GENERATED EVIDENCE

S84: Admissibility of statements in document produced by computers:
(1) In any proceeding a statement contained in a document produced by a computer shall be
admissible as evidence of any fact stated in it of which direct oral evidence would be admissible,

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if it is shown that the conditions in subsection (2) of this section are satisfied in relation to the
statement and computer in question.

(2) The conditions referred to in subsection (1) of this section are:

(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 and activities regularly carried on over that period or not, 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.

(3) Where over a period the function of storing or processing information for the purposes of and
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.

(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:
(c) dealing in 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
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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.

(5) For the purposes of this section:

(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.

S84(1) EA 2011 provides for the admissibility of computer-generated evidence in circumstances

where direct oral evidence is admissible. However, such document must satisfy the conditions
listed in S 84(2) EA.

In Imoro Kubour v Dickson (2012) LPELR 9817 SC, the court held that a party that seeks to
tender computer-generated evidence must not merely tender it from the bar and evidence must be
led to establish the conditions set out in S84(2) EA.

S84(4) EA provides that a certificate 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
▪ identifying the document containing the statement and describing the manner in
which it was produced;
▪ 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; and
▪ dealing with any of the matters to which the conditions mentioned in subsection (2)
shall be deemed to be sufficient evidence of the conditions stipulated in S.84(2)
EA.
However, in the recent case of Seriake Henry Dickson v Sylva (2016) LPELR 41257 SC, the
Supreme Court held that a certificate is not the only means of proving the conditions stipulated in
S84(2) EA and that the court can also require oral evidence.

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ADMISSIBILITY OF CONFESSIONAL STATEMENTS

Refer to the note on confession above

ADMISSIBILITY OF EXPERT EVIDENCE

▪ By S68EA the opinions of experts are admissible as an exception to the hearsay rule.
▪ An expert is defined in S68(2) EA as a person skilled in any field mentioned in S68(1) EA
viz foreign law, customary law or custom, science, art and identity of handwriting or finger
impressions.
▪ The evidence of an expert may be oral or documentary.
▪ Where it is oral, he is called as an expert witness and examined, cross-examined and re-
examined when necessary.
▪ Where it is intended to tender the report of an expert, he may be called as a witness and the
document tendered through him.
▪ The court would then examine the report and may utilise it in deciding the case one way or
the other.
▪ Must possess skill and qualification to be so referred Olayiwola v. FRN, Azu v. State,
Essien v. R.
▪ Rejection of expert evidence by court- Arise v. State, Aladu v. State.
▪ Expert evidence mandatory to prove some offences Ishola v. State; Stevenson v. Police.
▪ It’s essential to ask the expert his qualifications and the roles he played in generating the
evidence, this is foundation before tendering the evidence. This question must also be
asked to the IPO as foundation.

ADMISSIBILITY OF POLICE REPORT

▪ The report of the Investigating Police Officer (IPO) is admissible as documentary evidence
by virtue of S83 EA.
▪ Usually, the report would be tendered through the IPO who would be called as a witness.
▪ However, the absence of the IPO would not render the document inadmissible if the court
is satisfied that undue delay or expense would otherwise be caused in trying to secure the
presence of the IPO and such report would be admitted by the court in evidence S83(2) EA
▪ Note that statements made to the police during investigation are tendered through the
makers or the IPO while those made by suspects or defendants must be tendered through
the IPO Azeez Okoro v State (1998) NWLR (Pt. 584) 181, Okpara v FRN (1977).

HEARSAY EVIDENCE
Section 37, Hearsay Defined: Hearsay means a statement-
(a) oral or written made otherwise than by a witness in a proceeding; or

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(b) contained or recorded in a book, document or any record whatever, proof of which is not
admissible under any provision of this Act, which is tendered in evidence for the purpose
of proving the truth of the matter stated in it.
Section 38, Hearsay rule: Hearsay evidence is not admissible except as provided in this Part or
by or under any other provision of this or any other Act.
Express or implied assertions of any person other than the witness who testified or assertions in
documents produced in court when no witness is testifying are hearsay. See Ijiofor v The State
(2001) SCNJ 230.
The Nigerian Supreme Court in Ojo v Gharoro (2006) per Niki Tobi JSC adopted the definition
of hearsay in Subramanian v Public Prosecutor… “hearsay evidence is all evidence which does
not derive its value solely from the credit given to the witness himself, but which also rests also,
in part, on the veracity and competence of some other personality relates a story to another as proof
of contents of a statement, such story is hearsay.”

▪ Hearsay means a statement (a) oral or written made otherwise than by a witness in a
proceeding; or (b) contained or recorded in a book, document or any record whatever, proof
of which is not admissible under any provision of this Act, which is tendered in evidence
for the purpose of proving the truth of the matter stated in it S37 EA 2011
▪ Hearsay evidence is not admissible except as provided in the EA or any other Act S38 EA.
▪ In criminal trials, the most popular hearsay evidence is DYING DECLARATIONS S. 40
EA 2011, Okokor v State (1967) NMLR 189, Akpan v State (1967) NMLR 185.

EXCEPTIONS
1. RES GESTAE
Relevance of facts forming part of the same transaction
Section 4. Facts which, though not in issue, are so connected with a fact in issue as to form part of
the same transaction, are relevant, whether they occurred at the same time and place or at different
times and places.
Akpan v State (1994) Tobi JCA “the Latin expression, res gestae means “things done”. It is an
English doctrine or principle of the law of evidence which is exclusionary. The doctrine is mainly
concerned with the admissibility of statements made contemporaneously with the occurrence of
some act or event into which the court is inquiring.

Okoro v State (2007) the CA held that the piece of evidence tendered by PW1 and PW3 to the
effect that the deceased had, shortly before he died, stated that if he died, it was from gun shots
inflicted on him by Anthony Okoro (appellant) were made contemporaneously with the facts of
shooting the deceased, which formed part of the same transaction and were therefore relevant facts

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and admissible under sec 7 of the repealed Act (section 4); hence it was proper and lawful for the
TJ to accept and rely on those pieces of evidence to convict the appellant.

Tobi v Nicholas (1988). It was held that the statement made to the police about twenty minutes
after the incident was not spontaneous enough to be admissible.
R v Andrews in the case the appellant who had come with other persons to rob the victim stabbed
the latter. Minutes later, the police arrived at the scene and the victim narrated to them what had
just happened to him, mentioning the appellant’s name. Soon after, the victim became unconscious
and died two months later. At the trial, the victim’s oral statement to the police was objected on
the ground that it was hearsay and did not qualify as res gestae. The HL held that hearsay evidence
made to a witness by a victim of an attack, describing how he had received his injuries is admissible
in evidence as part of res gestae at the trial of the attacker, if the statement was made in conditions
that were sufficiently spontaneous to and contemporaneous with the event as to preclude the
possibility of concoction or distortion…it has to be closely associated with the event which excited
the statement that the victim’s mind was still dominated by the event.
In Ogba v State (1990) PW7 testified in chief that on 14/6/81, the deceased who was filled with
blood all over his body had suddenly entered into PW7 room. He then asked him what happened
and he said “I am dying, I am dying” when PW7 asked the deceased who hurt him, he said it was
the appellant. PW7 concluded that the “deceased was very weary and still saying he was dying”.
The CA held that this piece of evidence qualified as admissible under section 33 (10 repealed now
section 40 Evidence Act.

The exclamation of the victim by the bystander must be clearly and unequivocally established.
Hausa v State, the SC held relying on R v Bang Weyeku that when the court must rely on the
account given by the eye witness who had heard a dying declaration made by the deceased, strict
proof of such declaration will be required in the exact words used by the deceased. That if the
words used in the dying declarations are unclear, imprecise and ambiguous, such manifest
shortcoming would militate against their being admitted as part of the res gestae. Therefore, in the
instant case while PW2 testified that the deceased had shouted, “Hausa has shot me! Hausa has
shot me” PW3 testified that the deceased had shouted “Hausa it is you that shoot me… Hausa you
killed me, Hausa you killed me”. The SC held that the contradictions in these accounts rendered
the dying declaration inadmissible.

2. STATEMENTS BY PERSONS WHO CANNOT BE CALLED AS WITNESSES

Section 39, Statements, whether written or oral of facts in issue or relevant facts made by a person-
(a) who is dead:
(b) who cannot be found:
(c) who has become incapable of giving evidence; or

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(d) whose attendance cannot be procured without an amount of delay or expense which under
the circumstances of the case appears to the court unreasonable, are admissible under
section 40 to 50.

3. DYING DECLARATIONS
A specie of res gestae.
Section 40, Statements relating to cause of death:
(a) A statement made by a person as to the cause of his death, or as to any of the circumstances
of the events which resulted in his death in cases in which the cause of that person's death
comes into question is admissible where the person who made it believed himself to be in
danger of approaching death although he may have entertained at the time of making it
hopes of recovery.
A statement referred to in subsection (1) of this section shall be admissible whatever may be the
nature of the proceeding in which the cause of death comes into question.

The person making the declaration must be in expectation of death

Sunday Akpan v The State, Sunday has killed me held admissible.

R v Ogbuewu, I do not Know whether I am going to die was held to be inadmissible.

Peter v State the PW2 who heard a gunshot and the words of the deceased who was seen by the
PW2 rolling on the ground “Igiri has killed me, Igiri has killed me” rushed there and saw the
appellant with a gun still pointing at the deceased. The CA held that the above words were
admissible as dying declaration, because the deceased at the time of making the statement believed
himself to be in danger of approaching death.

The statement must be concise, unequivocal and complete Hausa v State, Akpan v State.

4. TESTIMONY IN PREVIOUS PROCEEDINGS;

Section 46, Admissibility of certain evidence for proving, in subsequent proceeding, the truth
of facts stated in it:
(1) Evidence given by a witness in a judicial proceeding, or before any person authorised by law
to take it, is admissible for the purpose of proving in a subsequent judicial proceeding, or in a later
stage of the same judicial proceeding the truth of the facts which it states, when the witness cannot
be called for any of the reasons specified in section 39, or is kept out of the way by the adverse
party:
Provided that

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(a) the proceeding was between the same parties or their representatives in interest:
(b) the adverse party in the first proceeding had the right and opportunity to cross-examine;
and
(c) the questions in issue were substantially the same in the first as in the second proceeding.
(2) A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the
defendant within the meaning of this section.
5. DEPOSITIONS IN AFFIDAVITS
Section 115, Contents of affidavits:
(1) Every affidavit used in the court shall contain only a statement of facts and circumstances
to which the witness deposes, either of his own personal knowledge or from information
which he believes to be true.
(2) An affidavit shall not contain extraneous matter, by way of objection, or prayer, or legal
argument or conclusion.
(3) When a person deposes to his belief in any matter of fact, and his belief is derived from
any source other than his own personal knowledge, he shall set forth explicitly the facts
and circumstances forming the ground of his belief.
When such belief is derived from information received from another person, the name of his
informant shall be stated, and reasonable particulars shall be given respecting the informant, and
the time, place and circumstance of the information.

In Adebanjo v Brown (1990) SC held that hearsay in an affidavit is admissible provided the
source and grounds of information or belief are disclosed therein.

6. EVIDENCE OF TRADITION
One of the five ways of proving title to land.
Olaleye v Adejumo (2005) “traditional history or traditional evidence is evidence as to rights
alleged to have existed beyond the time of living memory proved by members of the community
or village who claim to have land as their own or who defend a claim to such land. It can also be
described as a somewhat ancient history which is replete with hearsay but which has been elevated
to the status of admissible evidence by the statutory provision in section 45 of the Evidence Act”.
Elegushi v Oseni (2005) the SC held that proof of ownership of land by traditional history “is
usually based on hearsay evidence, that is, oral evidence often extending beyond human memory
and time of the witness narrating the history, which narrations are handed down from generation
to generation up to the present one.”

7. EVIDENCE OF CORPORATE TRANSACTIONS

Corporate bodies are legal personalities but are not human beings. In essence, it is only persons
working for the companies that can testify on its behalf.
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Ishola v Societe Generale Bank Ltd (1997). The SC held that a company being a legal entity or
juristic person can only act through its agents or servants; and that any agent or servant of such
company can give evidence to establish any transaction entered into by the company. That where
the official giving the evidence is not the one that actually took part in the transaction on behalf of
the company, such evidence is nonetheless relevant and admissible...in appropriate cases, it may
affect the weight of such evidence.

Kate Enterprises Ltd v Daewoo (Nig) Ltd (1985) SC the LTJ dismissed the Pfs case simply by
treating evidence of PW1 as inadmissible when it is not. He considered it pertinent “to note that
PW1 the only witness called by the plf was not the person who had direct dealing with the def…he
deduced that there is no proof of receipts of goods by the def”. The TJ in effect considered the
entire evidence given by the witness inadmissible and rejected it. He was clearly in error. His
evidence is admissible but the question of its weight is a different matter. That DWI had direct
dealing with Mr Lee the GM of the pfs company does not necessarily mean he was the only person
who could testify on its behalf. Any other employee conversant with the facts of the case was
competent to testify. The evidence given by PW1 with documents received in evidence were
sufficient evidence to prove its case, per Coker JSC.
8. EVIDENCE OF A MEDICAL DOCTOR ABOUT THE CONDITION OF A PATIENT
WHO CANNOT TALK
Oladele v State (1993) the SC held that the evidence of a doctor, which is based on his special
field of medical scientific knowledge is expert evidence by virtue of section 57(2) of the repealed
Evidence Act. That in the instant case, when the senior consultant psychiatrist expressed his
opinion on the mental condition of the appellant, he did so as an expert. The SC further held that
if evidence of insanity of ancestors or blood relations is admissible in court, then certainly the
observation of a psychiatrist is also admissible as this has to be seen in the light of the fact that a
patient taken to hospital is in some cases unable to talk due to the nature of his illness or inability
to explain why he is there; hence relatives or friends who took him to the hospital will explain to
the doctor who by the nature of his professional training will know the type of illness and what to
prescribe. Therefore, such evidence of the psychiatrist who treated him will not amount to hearsay
evidence, as it is relevant and therefore admissible even though based on reports made by others.
9. STATEMENT NOT TO PROVE FACT BUT TO PROVE THAT A STATEMENT WAS
IN FACT MADE BY ANOTHER PERSON: Witness saying that a statement was made by
another but not for the purpose of proving the truthfulness of a fact but to show that that person
actually made that statement is not hearsay, it would only amount to hearsay when it’s to prove
the truthfulness of the fact.

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SUMMARY OF THE EXCEPTIONS:

1. Res gestae S4, Akpan v State, Okoro v State, Tobi v Nicholas, Ogba v State, Ogba v
State, R v Bang Weyeku, Okoro v The State (the bell ringer who was shot by Anthony
Okoro, and shouted that Anthony Okoro has shot me, if I die, you killed me)
2. Statements by persons who cannot be called as witnesses S39
3. Dying Declarations S40 EA, Sunday Akpan v The State, R v Ogbuewu, Peter v State,
Hausa v State, Akpan v State
4. Testimony in previous proceedings S46
5. Depositions in Affidavits S115, Adebanjo v Brown
6. Evidence of Tradition Olaleye v Adejumo, Elegushi v Oseni
7. Evidence of Corporate Transactions Ishola v Societe Generale Bank Ltd, Kate
Enterprises Ltd v Daewoo (Nig) Ltd
8. Evidence of a medical doctor about the condition of a patient who cannot talk Oladele v
State
9. Treatises published by experts Olalomi Ind. Ltd v NDIC
10. Reports of Police investigators;
11. Circumstantial evidence
12. Statements in CTC of public documents Bello Mogaji v The State.
13. Admission Ss 20-27 EA
14. Confession Ss 28-32 EA

REFRESHING MEMORY
▪ S239 EA makes provision for a witness to refresh his memory from documents prepared
by that witness or by any other person and read by the witness either at the time of the
transaction or soon after the transaction took place.
▪ An expert witness may also refresh his memory by reference to professional treatises.
▪ A witness who seeks to refresh his memory must seek the leave of the court to do so.
▪ Simply to remember whether the writing is by himself S239(1) E.A or by another person
S239 (2) E.A.
▪ Writing whether by the witness himself or another person must have been made at the time
of transaction or so soon afterwards S239(1)&(2) E.A.
▪ Expert can refresh his memory by reference to professional treatises S239 (3) E.A.
▪ The adverse party has the right to request to be shown such writing and he must be obliged
and he can also cross-examine the witness on the writing if he chose S241 E.A.

HOSTILE WITNESS
▪ A hostile witness is one who:
 gives evidence against the party calling him; and
 such evidence is false

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▪ The court, upon satisfaction that a particular witness is hostile, declares such witness hostile
upon application by the party or his counsel.
▪ A witness is hostile, if in the opinion of the court, he bears hostile animus to the party
calling him and so does not give his evidence fairly with a desire to telling the truth to the
court- S. O. Esan v State (1976) 11 SC 93, Babatunde v State (1969) NMLR 227.
▪ Upon application by party and court satisfying itself, it can declare a witness hostile S230
E.A He may then be cross examined. Iluonu v. Chiekwu, Gaji v. State.
▪ The consequences of declaring a witness hostile are Adeleye v The State:
 The court will attach less weight to his testimony or disregard the testimony he has
given
 The witness can be cross-examined by the party calling him
 He can be asked leading questions
 He can be contradicted using his previous statements which are inconsistent with
his present testimony
▪ The general rule is that a party who calls a witness is not allowed to impeach the credit of
that witness S.230 EA 2011, Babatunde v State (1969) NMLR 227.
▪ This is subject to the exceptions provided in S. 230-233 EA 2011 which allows a party to
impeach the credit of his own witness.
 Where he makes contradictory testimonies S230
 Proof of contradictory statement of hostile witness S231
 Cross-examination as to previous statements in writing S232
 Impeaching credit witness (evidence of person testifying to unworthy character of
the witness, proof of bribe proof of former inconsistent statements) S233

COMPETENCE AND COMPELLABILITY OF WITNESSES

▪ A competent witness is one who can lawfully be called to give evidence.
▪ On the other hand, a compellable witness is a person who can lawfully be compelled by
the court to give evidence.
▪ While the basis of competence is largely the possession of understanding, intelligence,
fitness, mental or physical; compellability has to do more with position or status occupied
by a person at a given time.
▪ As a general rule, every person is a competent witness S175(1) EA 2011
▪ The competence of certain classes of witnesses would now be considered:

Children
▪ The law is settled that a child is a person who has not attained the age of 14 years S209
EA
It has been well couched by Nnaemeka Agu JSC in Mbele v The State (relying on his previous
pronouncement in Okon v The State: “the first duty is to determine whether the child is
sufficiently intelligent to understand the questions he may be asked… and to be able to answer
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rationally… this is tested by the court putting to him preliminary questions which may have
nothing to do with the matter before the court… then proceed to the next test as to whether in the
opinion of the court, the child is able to understand the nature and implications of an oath”… if
the child passes none of the test, he is not competent to testify. If he passes the first but fails the
second, he can give evidence though not on oath and the evidence would need corroboration. If,
however the child passes both tests, he can give evidence on oath and this evidence on oath can be
treated as though it was that of a competent adult. Muktar J.C.A in Ogunsi v State also gave a
similar dictum.

▪ The court is expected to conduct two tests on a child to determine the competence of that
child to give evidence viz:
▪ Whether the child has sufficient intelligence to give evidence (intelligence test)
▪ Whether the child understands the duty of speaking the truth (oath test)
▪ The tests must be administered in a progressive manner.
▪ If the child passes the first test but fails the second, he/she shall not be sworn.
▪ If the child fails the first test, the second shall not be administered and the child will not be
competent to give evidence.
▪ If the child passes the two tests, he/she would be sworn and the evidence taken on oath-
Dagayya v State (2006) AFWLR (308) 1212

Persons of extreme old age

▪ The Evidence Act is silent on who an old person is.
▪ The general view is that it is the judge that will determine who an old person is.
▪ If the court is satisfied that he /she is a person of extreme old age, the two tests applicable
in respect of a child are also applicable.

A person of unsound mind

▪ A person of unsound mind is a competent witness except he is prevented by his mental
infirmity from understanding the questions put to him or from giving rational answers to
them- S.175(2) EA
▪ R v Dunning, R v Hill and Pittie v Walton, evidence can be upheld during lucid intervals
or if drunken when sober.

Dumb witness
▪ A dumb person is also a competent witness.
▪ He may give his evidence in any other manner in which he can make it intelligible such as
by writing or signs, but such writing must be done and the signs made in open court.
S176(1) EA
▪ Any evidence so given by the dumb person though in writing or signs shall be deemed to
be oral evidence S176(2) EA
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Defendant/Co-defendant
▪ As was held in R v Akpan, Umole v IGP, co-defendant can be compelled but never at the
instance of the prosecution when
▪ he’s tried separately,
▪ has been acquitted,
▪ has been convicted and sentenced,
▪ discharged on nolle prosequi, or
▪ pleaded guilty and convicted
▪ A defendant is not a competent witness for the prosecution particularly where he is charged
alone.
▪ Where he is charged with other persons, he is competent to give evidence for the
prosecution against his co-accused, where he has pleaded guilty and has been convicted
and sentenced. - Umole & Ors v IGP (1957) NRNLR 8
▪ An accused person is however a competent witness for the defence at all times S180 EA
▪ Umole v Police 1957 NRNLR at 8. In the case, the accused pleaded guilty and was
convicted but before he was sentenced, he’s allowed to give evidence against the co-
accused and the court convicted the co-accused. The court held that he could give such
evidence. Note that there’s difference between conviction and sentencing, since the
accused hasn’t been sentenced but only convicted. Note that, where an order for separate
trial has been ordered, an accused may evidence give for the prosecution against the co-
accused in another trial.

Spouses of a valid marriage

▪ The general rule is that a spouse is not competent to give evidence against the other spouse
Idiong and Anor v The King 1959 13 WACA p 30, Lamu v The State 1967 NMLR 228,
except that other spouse gives consent or that other spouse has been charged under any of
the offences mentioned in section 182(1) EA which contain the exceptions.
▪ S179 EA provides generally that the spouses of defendants are competent witnesses.
▪ There are however instances where the spouse of the defendant is both competent and
compellable. These are:
▪ Where the offence for which the spouse is standing trial relates to any of those
mentioned in S182(1) EA (sexual offences)
▪ Where the offence is one against the property of the wife or husband of the accused,
subject to S36 Criminal Code.
▪ Where the husband or wife is charged with the offence of inflicting violence on his
wife or her husband
▪ In any other case, the husband or wife is only a competent and compellable witness only
upon the application of the person charged S182(2) EA 2011
▪ The failure of the wife or husband of any person charged with an offence to give evidence
shall not be made the subject of any comment by the prosecution S182(4) EA
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▪ Note privilege of marital communications in S182(3), 187 EA 2011

Banker
▪ A Banker is not competent to give evidence except in a case in which the bank is a party.
Also, a bank is not obliged to tender the banker’s book or the account of the client except
on the order of court see S177 EA. A banker is not at liberty to tender information on the
client except the court directs. Generally, the banker can’t appear as a witness against the
client, or tender account records.
▪ This is based on the general common law rule on fiduciary duty of the banker to the client.
But several other Acts have created exceptions.
▪ This is why the EFCC Act provides for interim forfeiture of assets of an accused or
permanent order of forfeiture. Under the EFCC Act, it’s important for the EFCC to act fast
to freeze the account to ensure that the funds aren’t moved. The EFCC Act S34 provides
that notwithstanding the provisions of S177 of EA, the EFCC can approach the court for
an interim order on the account to be frozen. Also see Money Laundering Act 2012
S13(4), Terrorism Prevention Amendment Act 2013 S14.

Certain persons are competent witnesses but are not compellable. They include:
▪ The President, Vice-President, Governors and Deputy Governors -S308
CFRN, Fawehinmi v IGP (2002) FWLR (108) 1355, Tinubu v IMB Securities
▪ Diplomats S1(1) Diplomatic Immunities and Privileges Act, Zabusky v Israeli
Aircraft Industries (2007) AFWLR (352) 1759, CBN v Trendtex
▪ Judges S188 EA 2011. Are NOT competent or compellable to testify concerning a
matter he had either previously dealt with or on which he is currently presiding-
Elabanjo v Tijani. This rule is traceable to the English common law cases of R v
Harvey, R v Gazard, R v Morgan. However, if they decided to testify, he/she
must thereafter cease to preside over the matter or take part in the proceeding-
Warrant v Warren. EXCEPTION: he’s compellable for events that occurred in
his presence.
▪ Legal practitioners- S192 EA 2011. in Elebanjo v Tijani, it was held that LP are
competent and compellable witnesses, the only exception is S192(1) EA on
privilege information received. So, the privilege is not for the LP but for the client.
NB: the Exceptions to the privilege of the client such as: commission of crime,
furtherance of commission of crime, recovery of legal fees, allegation against the
LP or his cohorts by the client., also R19 RPC.

CORROBORATION OF EVIDENCE
▪ This is the confirmation of witness’ evidence by independent evidence.
▪ As a general rule, no particular number of witnesses is required to prove the case against
an accused S200 EA
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▪ Corroboration is an exception to this general rule.

▪ To satisfy the requirement of corroboration, the evidence must show two things:
 that the offence was committed; and
 that the accused is implicated in the commission. See Okpanefe v State
▪ Corroborative evidence may be oral, documentary or real.
▪ Corroboration is required in the following instances:
 Where it is required as a matter of law
 Where it is required as a matter of practice
▪ Corroboration as a matter of law
▪ The law requires corroborative evidence in the following instances:

1. Breach of promise to marry S197 EA, Bessela v Stern, Weidmann v Walpole, in

the former, the sister heard the promise and C it and he even gave her money serving
as another piece of evidence.
2. Treason and treasonable felonies S 201 EA, Omisade v R (1964) 1ANLR 233
3. Evidence on a charge of perjury S 202 EA, S.119 Criminal Code, R v Ogunnubi
4. Exceeding speed limit S 203 EA, Agbonavbare v Ogbebor
5. Sedition S 204 EA 2011
6. Unsworn evidence of a child S 209(3) EA 2011, Ogunsi v State
▪ Note that where corroboration is required as a matter of law, any conviction based on
uncorroborated evidence will be quashed on appeal Oyediran v Republic
▪ Corroborative evidence is required by the court as a matter of practice in the
following cases:
1. Evidence of an Accomplice section 198
2. Evidence of co-accused State v Idahosa (1965) NMLR 85
3. Sworn evidence of a child Akpan v state (1992) 6 NWLR (Pt. 248) 439
4. Evidence of agent provocateur Mbenu v State (1988) 3NWLR (Pt. 84) 615 at 626
5. Tainted witness Idahosa v R (1965) NMLR 86
6. Sexual offences Iko v state (2001) 14NWLR (Pt732) 221
7. Retracted confessional statements Onochie v Republic (1966) NMLR 307
▪ Note that where corroboration is merely required as a matter of practice, any conviction
obtained would not be quashed except miscarriage of justice is proved.

CASE THEORY AND TRIAL PLAN

CASE THEORY
▪ A case theory is the vehicle through which the facts of a case are conveyed as a structured
and credible whole Gravett & Loggerenberg
▪ The case theory or theory of the case may therefore be said to be logical or coherent
historical account of the case related to the legal rules, principle and practice of the aspect
of the law in question Obi Okoye.
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▪ An adequate “theory of the case” might be described as a short, persuasive summary of the
facts, explaining exactly “what happened” from the perspective of the lawyer’s client.
▪ Case theory is an advocate’s strategy and comprises the line of arguments from his opening
speech through closing speech.
▪ A logical theory is based on a solid evidentiary foundation that, along with reasonable
inference, leads naturally to the intended result.
▪ The case theory must possess the following qualities: It must be -
1. Persuasive and simple;
2. Logical and comprehensive;
3. Credible/believable or if disputable, be consistent with the evidence or common sense;
4. Based on undisputed facts or if disputed, be consistent with the evidence or common
sense;
5. Lead to the right conclusion, that is, a conclusion that is consistent with provable facts.

▪ In forming the case theory, regard is had to the following:

 The charge against the accused
 The ingredients having regard to the statute creating the offence
 The facts available to prove the offence
 The principles guiding the offence
 The likely defences available to the accused

TRIAL PLAN
▪ Trial plan is an action plan prepared by a counsel stating how he intends to prove his case
or establish his defence.
▪ The trial plan should contain the following in a tabular form:
 Charge
 Law
 Evidence (prosecution)
 Evidence (defence)
 Penalty
 Prayer (prosecution)
 Prayer (defence)
 Remarks

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SAMPLE TRIAL PLAN

Charge Law Prosecution Defence Penalty Prosecution Defence Remarks

Evidence Evidence Prayer Prayer
Stealing SS. 1.Oral 1. 3 years Asking the Asking 1. Prosecution
383, testimony of Evidence jail court to the court to rely heavily
390 Mr Obeise of alibi term convict as to on the report of
CC charged discharge the I.D. parade
2.Eye and
witness acquit 2. Defence to
account of a argue that alibi
passenger in of the accused
the bus not
investigated by
3.The report the prosecution
of ID parade

SUBPOENA AND WITNESS SUMMONS

SUBPOENA
▪ A subpoena is a writ requiring the person to whom it is directed to be present at a specified
place and time and for a specific purpose under a penalty under the law. S.241 ACJA,
S.188 ACJL Lagos, 247 ACJL Kano.
▪ A party may apply to a judge for the issuance of a subpoena without disclosing the nature
of evidence the witness may give COP v. Jane & Anor NLR (XIX) 66.
▪ There are basically four types of subpoenas:
 Subpoena ad testificandum- Form 29 FCT HC CPR 2018, Form 27 Lagos HC
CPR 2019, It compels a witness to attend court and give oral evidence
 Habeas corpus ad testificandum- Form 30 FCT HC CPR 2018, Form 28 Lagos
HC CPR 2019. It compels the prison authority to produce an inmate to testify.
 Subpoena duces tecum-Form 31 FCT HC CPR 2018, Form 29 Lagos HC CPR
2019. It compels a witness to tender a document. Note that a witness brought to
court on a subpoena duces tecum is not liable to give evidence on oath or be cross-
examined S.218, 219 EA 2011, Olaniyan v Oyewole (2008)
 Subpoena duces tecum et ad testificandum- compels a witness to give oral
evidence and tender documents.

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WITNESS SUMMONS
▪ This is an order of court issued to a person whose presence is required for purposes of
testifying in a matter before the court.
▪ It is served on the witness the same way an originating process of court is served- personal
service or substituted means.
▪ See S.241 ACJA, S.177 ACJL

OPENING STATEMENT/ADDRESS
▪ Opening address is a summary of the evidence the prosecution intends to adduce before
the trial court.
▪ See S. 300 ACJA, S. 268 ACJL
▪ This will include the following:
 The charge against the accused
 The evidence available to prove the charge
 Witnesses to be called and availability of such witnesses
 Approximate time to complete the prosecution’s case

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11.0 TRIAL 3 (EXAMINATION OF WITNESSES)

INTRODUCTION
Witnesses are important to the success of the cases of both the prosecution and the defence.
S36(6)(d) CFRN allows the prosecution and the defence to call witnesses to testify on their behalf
and to cross-examine the witnesses called by the opposition.

This is because we practise adversarial system of litigation where parties alone take issues with
one another and they should call witnesses to establish their own side of any given issue- Onuoha
v State (1989) 2 NWLR (101) 23. See generally SS 196 ACJL, 255 ACJA, 214 EA.

S255 ACJA simply provides that “subject to the provisions of any other law, the examination of
witnesses shall be in accordance with the provisions of the Evidence Act.” Similar provisions in
SS 196 ACJL Lagos and 257 ACJL Kano.

There are three categories of examination of witnesses in criminal trials to wit; Examination-in-
chief, Cross-examination and re-examination S 214 EA.

S214: Examination-in-chief, Cross-examination and Re-examination

(1) The examination of a witness by the party who calls him shall he called examination-
in-chief

(2) The examination of a witness by a party other than the party who calls him shall be
called cross-examination.

(3) Where a witness has been cross-examined and is then examined by the party who called
him, such examination shall be called re-examination.

215: Order and Direction of Examination

(1) Witnesses shall be first examined-in-chief then, if' any other party so desires, cross-
examined, then, if the party calling him so desires, re-examined.

(2) The examination and cross-examination must relate to relevant facts, but the cross-
examination need not be confined to the facts to which the witness testified on his
examination-in-chief.

(3) The re-examination shall be directed to the explanation of matters referred to in cross-
examination and if a new matter is, by permission of the court, introduced in re-
examination, the adverse party may further cross-examine upon that matter.

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Examination-in-chief
This is the examination of a witness by the party who calls him S214(1) EA. Its purpose is to elicit
from the witness facts and evidence that are relevant and favourable to the case or any part of the
case of the party on whose behalf he is testifying. Leading questions and questions tending to
discredit witnesses are not allowed, generally, in examination-in-chief and re-examination.

Purpose is to elicit admissible, material and favourable evidence.

It takes the form of responses to questions which eventually provide 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 is necessary to prepare the witness.

It must be based on relevant facts Agunbiade v Sasegbon, Musa Sadau v The State.

Leading questions are generally not allowed during examination-in-chief SS221(1) & (2) E.A.
Leading question is defined under S221 as questions suggesting the answer which the person
putting it wishes or expects to receive.

Subsection (2) expressly provides that leading questions shall not be asked in examination-in-
chief, or in re-examination, except with the permission of the court.

Exceptions are; Subsection (3),

1. Introductory matters;
2. Undisputed facts;
3. Matters, which in the opinion of the court have already been sufficiently proved before the
court S 221(3).
4. Where leave has been obtained by a party calling a witness to treat such witness as a hostile
witness S230 EA.
Where leading question is asked outside of the exceptions, the opposing counsel is to raise an
objection or be deemed to have waived his right.

Open and closed questions are to be used in conducting examination-in-chief. Open questions
should be preferred to closed questions because they allow the witnesses tell their stories
uninterrupted. ‘What, where, why, how, when, who’ are the interrogative pronouns and adverbs
used in open questions. Open ended questions start with “who”, “why”, “what”, “where”, “when”,
“how”, “describe”, “explain” etc. Should be adopted to avoid leading questions.

You can also start examination-in-chief with words like, ‘describe, explain, etc.
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Closed questions are asked to elicit more specific facts and to prevent the witness from derailing;
but they could result to leading questions if not carefully managed. Closed questions begin with
verbs and interrogative adverbs such as: has, have, had, do, did, are, were.

Cross-examination
This is the examination of a witness by a party other than the party who calls him S214 (2) EA.
Before embarking on cross-examination of witness, counsel should ask himself if it is desirable,
that is, if it helps his case in any way. This is because some cross-examination could help the
opponent’s case.

Note, however, that if he fails to cross-examine a witness, the evidence of such a witness is taken
as admitted Awopejo v State (2000), Garba v The Queen (1959).

In a joint criminal trial, each of the accused persons is entitled to cross-examine any witness called
by the prosecution if he wishes S216 EA.

If an accused person calls a witness, his co-accused persons each, has the right to cross-examine
the witness before the prosecution does S217 EA.

Not limited to facts elicited in exam-in-chief S215(2) E.A. Cross-examination not mandatory, but
can be crucial.

Person summoned merely to produce documents and not to testify cannot be cross-examined Ss
218, 219 E.A.

Leading questions are allowed in cross-examination provided they are relevant and go to the
credibility of the witness S221(4) EA.

Exceptions
Even though counsel is allowed to ask many questions during the cross-examination of a witness,
he is not allowed to ask:
• 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 E.A.
• indecent and scandalous questions unless they relate to the facts in issue S227 EA;
• questions intended to insult or annoy the witness or which is needlessly offensive S228
EA;
• Questions about other sexual experiences or pleasure aside with any person other than the
defendant in cases of sexual offences S234 EA.

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• Under S226 EA, the judge is empowered to report a counsel who ask baseless or questions
adjudged to be without reasonable cause to the AGF or any other authority to which the
legal practitioner is subject.

When a counsel may choose not to Cross-examine a witness:

• Where he has not testified on material facts
• Where he testifies on material facts but doesn’t contradict or deny it in relation to case of
the party Awopejo v The State, Garba v The Queen.
• Thus, if he hasn’t said anything injurious to the counsel’s case, no need to cross-examine.
• Where a party is neither cross-examined nor evidence adduced to contradict him, the
evidence is deemed admitted.
• Where a party refuses to be cross-examined, the court shall not act on it. It’d be struck off
the record of the court Shofolahan v The State, Umukoro v The State.
• Where a party is denied the opportunity to be cross-examined, it is a denial of right to fair
hearing S36 CFRN.

Ten Commandments for Cross Examination

1. Not good to cross examine without a definite purpose
2. Cross examine only when it is necessary to do so
3. Do not cross examine by merely going over the evidence in chief, hoping that the witness
will miss out or mix up something
4. Avoid suggesting or putting it to a witness that he is lying or mistaken unless you have
properly laid foundation for that.
5. Do not cross examine on trivial issues
6. Do not attempt to discredit obviously truthful evidence
7. Abreast self with rules of evidence, obligations under the law and consequence of non-
compliance.
8. Do not cross examine if you do not fore see any significant or helpful result.
9. Failure to challenge adverse and material evidence can be fatal
10. Avoid aimless cross-examination

Re-examination
This is the examination of a witness by the party who calls and examines him in chief. Leading
questions are not allowed in re-examination except court permits them. Re-examination is done
after cross-examination to clear any ambiguity arising from answers given to a question(s) in cross-
examination.

It does not admit extension, re-opening or repetition of examination-in-chief. New matters can
only be introduced with the leave of the court. When this happens, the party in opposition shall be
allowed to cross-examine the witness on the newly introduced matters only S215(3) EA.
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Purposes of examinations in criminal trials

Examination-in-chief:
• The main purpose of examination-in-chief is to elicit from the witness some relevant pieces
of evidence favourable to the case of the party who calls him.

Cross-examination:
• To get favourable evidence for the case of the party cross-examining the witness
• To contradict the witness and render his testimony unreliable and unbelievable by the court
• To destroy the opponent’s case.
• Under cross examination the following must be asked: To test his accuracy, veracity or
credibility, discover who he is and what his position in life and shake his credit by injuring
his character.

Re-examination:
• The main purpose of re-examination is to clear any ambiguity arising from the cross-examination
of the witness by the opposing counsel. Ambiguity is said to have arisen if any statement made
by the witness in answer to any question put to him by the party cross-examining him is capable
of having two or more meanings.

Statements in public documents, SS102,104,105 EA

When secondary evidence of a public document, i.e., CTC, is given in a criminal trial as the
evidence of the content of the public document, it qualifies as admissible hearsay evidence and as
such an exception to the general rule.

The CTC of public documents must be made by authorised public agents in the course of their
official duties, that the facts recorded in the documents are of public interest and that it is difficult
or impossible to prove facts of a public nature by means of actual witnesses examined on oaths-
S90(1) (c) EA.

However, in Bello Magaji v Nigerian Army (2008) 2-3 SC (Pt II) 146, where Ogbuagu, JSC
opined that a photocopy of CTC of a public document needs no further certification.

Circumstantial evidence
This is the means of proof of the existence of facts by inference made from proved facts. It is
resorted to when there is no direct evidence to prove the existence of the facts.

The circumstantial evidence must be cogent, unequivocal, overwhelming and must point directly
and irresistibly to one conclusion: that the accused person and no other person committed the
alleged offence. See Shehu v State (2010) 2-3 SC (Pt. 1) 158 at 189, Jua v State (2010) 1-2 SC
(Pt. 1) 96 at 134.

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Suspicion, however, strong cannot ground conviction – Abieke v State (1975) NSCC 402 at 408.

Powers of judges or magistrates to put questions to witnesses

Judges or magistrates have powers to put questions to witnesses testifying before them in order to
clear ambiguities or clarify points which have been left obscure in the evidence adduced by the
witnesses. This is done in respect of relevant facts, duly proved S246 (1), 2), (3) EA CF SS 224,
225, 226 EA.

This does not mean that judges or magistrates have powers to descend into the arena to make case
for the prosecution or the defence, or to ask questions which the law forbids counsel to put to the
witnesses. This will amount to undue interference, which the law forbids. See Okoduwa & Ors v
State (1988) 1 NSCC 718, Uso v State (1972) 1 SC 37.

The number of questions asked is immaterial. What matters is if the question(s) is relevant to the
live issues before the court. See Onuoha v State supra, Magaji v State [2008] 2-3 SC (Pt. II)146.

Power of Assessors to put questions

S247 EA provides that “in cases tried with assessors, the assessors may put questions to the
witnesses, through or by the judge, which the judge himself may put and which he considers
proper.

Power of courts to call or recall witnesses

A Magistrate or Judge has power to call a fresh witness or recall a witness who has earlier testified
in a case, at any stage before judgment, for questioning if his evidence will help in the just
determination of the case. The purpose is not to build the case of any party. Such witnesses are not
the witnesses of either of the parties and the parties can only examine them with the leave of the
court. SS 197 ACJL Lagos, 256 ACJA; Okorie v Police (1966) LLR 134, Opeyemi v State
(1985) 2 NWLR (Pt. 5) 101, R v Aderogba (1960) FSC 212, Onuoha v State (1989) 2 NWLR
(Pt.101) 23.

Power of parties to recall witness

YES, they can with the leave of court proving that they’re material witnesses and there are material
questions to be asked Ogbodo v The State.

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12.0 TRIAL 4 (PRESENTATION OF THE CASE FOR THE

DEFENCE)
PRESENTATION OF CASE FOR THE DEFENCE
ACJA S300, S302 ACJL Kano provides on presentation of case for prosecution as follows:
(1) After a plea of not guilty has been taken or no plea has been made, the prosecutor may open
the case against the defendant stating shortly by what evidence he expects to prove the guilt of the
defendant.
(2) The prosecutor shall then examine the witnesses for the prosecution who may be cross-
examined by the defendant or his legal practitioner and thereafter re-examined by the prosecutor,
where necessary.

S301 ACJA, 302(3) ACJL Kano provides that “after the case of the prosecution is concluded, the
defendant or the legal practitioner representing him, if any, is entitled to address the court to present
his case and to adduce evidence where so required.”

The case of the prosecution comes to a close when the prosecution has called all his witnesses.
Upon completion of the prosecution evidence, he may inform the court at the close of his case as
follows;
 “that’s all for the prosecution” or “that is the case of the prosecution” or in any manner
that the court will understand that the prosecution has concluded giving of evidence.
NB: Evidence may be given not on oath where it is the testimony of a child who doesn’t understand
the nature of an oath but possesses sufficient knowledge to justify the reception of his evidence
and understands the duty of speaking the truth S209 EA; Okon v The State. Where it is the
evidence of a non-believer or a person whose religious belief forbids the taking of an oath S208
EA.

Pattern of tendering evidence

No specific pattern is laid down. But it may be regulated by the discretion of the Court S210 EA.
If, however, the complainant is present, it may be in order to call him first.

Number of witnesses required to be called

The prosecutor must call sufficient witness to prove his case. He needs not call all the available
witnesses, but those called must be sufficient S200 EA.

Where only a number out of the witnesses listed on the information or charge are called, it has
been held valid as there is no obligation on the Prosecutor to call all of them Adaje v The State,
Jammal v State.

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In Ali v. The State (1988) 1 SCNJ 17, where only one witness out of the three witnesses was
called, the SC held that it was sufficient as long as it proved the case against the accused. Contrast
the foregoing cases with Opayemi v. The State (1985) 6 S.C. 347.

Power of the presiding officer to put questions to the witnesses

He is always permitted to put questions to the witnesses testifying. But he must not take over the
conduct of the case. He should not be a "Hippy Hallet" by talking too much. In Uso v C O.P.,
Okoduwa v State, the presiding officers took over the conduct of the cases; they talked too much
in the circumstance; they forgot that we operate the accusatorial and not the inquisitorial system
of Criminal justice and by their conduct, the trials were vitiated.

Options for the Accused

When the prosecution closes his case, the accused has three options:

1. Submission of no case to answer

2. Resting the case of the accused on that of the prosecution
3. Entering/Opening his defence

Submission of no case to answer

S302 ACJA provides that “the court may, on its own motion or on application by the defendant
after hearing the evidence for the prosecution, where it considers that the evidence against the
defendant or any of several defendants is not sufficient to justify the continuation of the trial, record
a finding of not guilty in respect of the defendant without calling on him or them to enter his or
their defence and the defendant shall accordingly be discharged and the court shall then call on the
remaining defendant, if any, to enter his defence.” Similar provision in SS 303 ACJL Kano, 239
ACJL Lagos. NB: in Lagos, it is the duty of the counsel, where the defendant is represented, to
raise a no case submission but in ACJA and Kano its either court suo motu or the counsel.

If at the end of the Prosecution's case, the defence feels he has no case to answer, he can make a
no case submission S239 ACJL, S302 and 303 ACJA.

The application is made in the following circumstances:

1. when there has been no evidence to prove an essential element of the offence.
2. when the evidence adduced by the Prosecution has been so discredited as a result of cross-
examination or is so manifestly unreliable that no reasonable tribunal could safely convict
on it Tongo v COP (2007), Agbo v the State (2013), R. v. Coker 20 NLR 62; lbeziako
v. The C.O.P. (1963), Ubanatu v. COP (2000), Emedo v. State (2002).

But subsection (3) of S303 ACJA further provides for what the court should consider in a no case
submission. S303 ACJA provides that

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(1) Where the defendant or his legal practitioner makes a no case submission in accordance with
the provisions of this Act, the court shall call on the prosecutor to reply.

(2) The defendant or his legal practitioner has the right to reply to any new point of law raised by
the prosecutor, after which, the court shall give its ruling.

(3) In considering the application of the defendant under section 303, the court shall, in the exercise
of its discretion, have regard to whether:

(a) an essential element of the offence has been proved;

(b) there is evidence linking the defendant with the commission of the offence with which
he is charged;

(c) the evidence so far led is such that no reasonable court or tribunal would convict on it;
and

(d) any other ground on which the court may find that a prima facie case has not been made
out against the defendant for him to be called upon to answer.

No case submission simply means that the accused has no case to answer because there is no
evidence before the court upon which the accused can be convicted Fagoriola v FRN (2014)

The defence counsel may make a no case submission on behalf of the accused by contending that
the prosecution has not made out a case against him that will require him to answer.

NOTE that the ACJL and ACJA makes express provision on no case submission S239(1) ACJL
Lagos and 302 & 303 ACJA.

When a no case submission is made, it means that there is no legally admissible evidence linking
the accused with the essential elements of the offence as contained in the charge Ibeziako v COP
(1963) and Aituma v The State (2006)

Under the ACJA, the defence counsel can by way of an application enter a no case submission or
the court can suo motu discharge the accused where there is no prima facie evidence against him
Suberu v The state (2010)

Where a no case submission is made, the court will determine whether prima facie evidence against
the accused person has been established or not S357 ACJA.

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The court is only meant to determine whether a prima facie case has been established against the
accused to justify his being called upon to defend himself.

PRIMA FACIE CASE

In Prof. Adenike Grange v FRN (2010), Prima facie was defined to be ground for proceeding
further with the trial.

RULING ON NO CASE SUBMISSION

In determining a no case submission, the court is not interested in evaluating the credibility of the
prosecution witnesses who have testified in court, it will only do so at the end of the trial Ajiboye
v. The state (1995). The court is only interested in identifying whether there is ground for
proceeding further with the case.

Where there is ground for proceedings, no matter how slight, the court will overrule a no case
submission. That is to say that the accused has a case to answer as he will be called to enter his
defence and give evidence Agbo v The State.

Where there is no ground for proceedings established against the defendant, he will be discharged
S302 ACJA. The discharge of an accused where a no case submission is upheld operates as a
discharge on merit. The discharge is a bar to further proceedings and the accused can no longer be
arrested or charged on the same offence S239(1) ACJL

The effect of a discharge on a no case submission is equivalent to an acquittal. In Nwali v. The

IGP (1956) and The IGP v. Marke (1957), where the accused were subsequently charged after a
discharge following a no case submission, it was held on appeal that their discharge was on merit
and consequently, they should be acquitted.

The Court has an obligation to consider suo motu the prosecution's case whether a case has been
made out against the accused and if it discovers that the prosecution made out no sufficient case,
it should discharge the accused Okoro v. The State (1988). See however Maiduguri v. R. (1963).

Where the accused makes a no case submission, the ruling of the trial Court should be confined to
the submission and must neither be too lengthy, nor such as to fetter the discretion of the Court.
Ekanem v. R. 13 W.A.C.A. 180; Odofin Bello v. The State (1967) NMLR 1.

However, a lengthy ruling on its own is not sufficient to vitiate a trial. The discretion of the Court
must not be fettered. In Atano and Anor v. The A. G. Bendel (1988) 2 NWLR 201 (Pt. 75), the
ruling was merely lengthy. Held that the discretion of the Court was not fettered thereby.

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WRONG OVERRULING OF NO CASE SUBMISSION

If no case submission is wrongly overruled and an accused person participates in the proceedings
whereby, he supplies the evidence incriminating him it has been held that a conviction founded on
such evidence could not stand. To hold otherwise will amount to requiring the accused to prove
his innocence contrary to S36(5) CFRN, Mumuni v The State, (1975); Okoro v The State
(1988), Daboh v The State (1977) 5 S.C. 197.

Thus, it is immaterial whether the accused participates in the trial or not if in any event the
submission is wrongly overruled or the Court does not discharge when there is no case against the
accused after the close of the Prosecution's case Okoro v. The State.

Where the no case submission is rightly overruled evidence obtained from participation will be
admissible against the accused Ohuka v. The State (1988) 4 NWLR 36 (Pt. 86).

A ruling on no case submission is appealable Aminu Mohd v The State (2009).

ENTERING/OPENING HIS DEFENCE SS 240 ACJL Lagos, 304 ACJA, 305 ACJL Kano,
36(11) CFRN, Ajibaye v The State (2013)

This is an option for the defence where the court overrules a no case submission or where no case
submission was not entered after the close of prosecution case. The accused is only asked to open
his defence.

Proceedings for the defence under ACJL Lagos

S240 ACJL Lagos provides:

(1) At the close of the evidence in support of the charge, if it appears to the Court that a prima
facie case is made out against the defendant sufficiently to require him to make a defence, the
Court shall call upon him for his defence and—

(a) if the defendant is not represented by a legal practitioner, the Court shall inform him
that he has three alternatives open to him, namely—

(i) he may make a statement, without being sworn, from the place where he then is,
in which case he will not be liable to cross-examination; or

(ii) he may give evidence in the witness box, after being sworn as a witness; in
which case he will be liable to cross-examination; or

(iii) he need not say anything at all, if he so wishes, and in addition the Court shall
ask him if he has any witnesses to examine or other evidence to adduce in his
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defence and the Court shall then hear the defendant and his witnesses and other
evidence, if any; and

(b) if the defendant is represented by a legal practitioner, the Court shall call upon the legal
practitioner to proceed with the defence.

(2) If the defendant or his legal practitioner states that he has witnesses to call but that they are not
present, the Court may, in the circumstances set forth in sections 177 to 183 take the necessary
steps to compel their attendance.

Proceedings for the defence under ACJA and ACJL Kano

S304 ACJA provides that

(1) After the case for the prosecution is concluded, the defendant or the LP representing him, if
any, is entitled to address the court at the commencement or conclusion of his case, as he deems
fit, and if no witnesses have been called for the defence than the defendant himself or witnesses
solely as to character of the defendant and no document is put in as evidence for the defence, the
prosecution shall not be entitled to address the court a second time but if, in opening the case for
the defence, the LP appearing for the defendant introduced a new matter without supporting it by
evidence, the court in its discretion may allow the prosecution to reply.

(2) Where any witness, other than the defendant himself or witnesses solely as to the defendant’s
character, is called or any document is put in as evidence for the defence, the LP appearing for the
defendant is entitled after evidence has been adduced to address the court a second time on the
whole case and the prosecution shall have a right of reply.

(3) The provisions of this section shall not affect the right of reply by a law officer.

RESTING THE CASE OF THE ACCUSED ON THAT OF THE PROSECUTION

The accused can choose to rest his case on that of the prosecution where he chose not to give
evidence in his case and remain silent because there is no evidence linking him with the offence.
Right to remain silent is constitutionally guaranteed by S36(11) CFRN.

 The implication is that the accused is inviting the court to decide the case based on the
evidence provided by the prosecution Sulaiman v. the State (2009).
 This option is risky as the accused stands or falls with the evidence adduced by the
prosecution Mumuni v State
 The supreme court has actually warned that it is reckless for the accused to insist on resting
his case on that of the prosecution when the prosecution has made out a prima facie case
which calls for the accused persons defence Babalola v The State (1989). On the
implication of this step, the SC noted: "Whereas prudence dictates that an accused person
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should not assist the prosecution which has failed to prove every material ingredient in the
case against him by giving them the opportunity of extracting it in witness box under the
fire of cross-examination, it is reckless to insist on the exercise of that right when the
prosecution has made out a prima-facie case which calls for the accused person's
explanation" Per Nnaemeka-Agu J.S.C. in Babalola v. The State.
 The accused should only do so where the prosecution has failed to prove essential
ingredients of the offence Ali v State (1988).
 A defendant who rests his case on that of the prosecution cannot be allowed to adduce
evidence at the trial Sulaiman v The State (2009).
 The court will call for address after defendant informs the court that he is resting his case
on that of the prosecution.
NOTE that if a no case submission is overruled, the accused is asked to enter his defence but if he
chooses to rest his case on that of the prosecution, the defence cannot adduce evidence.

OPENING ADDRESS FOR THE DEFENCE;

 At the commencement of case for the defence, he will inform the court the nature of his
defence, whether he is testifying in his own defence, the witnesses he intends to call and
the probable length of time it will take him to call all his witnesses S269(1) ACJL.
NOTE that Opening address is only optional and not mandatory. The accused can choose to waive
same.

In his defence, the accused may raise the following defences;

 Defence of Alibi
 Defence of provocation
 Defence of insanity
 Autre fois acquit or autre fois convict.
 Pardon & other defences available to him.

The accused may testify as a sole witness for the defence or may call other witnesses. The defence
and his witnesses testifying (on oath) shall be examined in chief by the defence, cross examined
by the prosecution and re-examined by the defence (if necessary).

After the close of evidence by the defence, he shall inform the court that the case of the defence
has come to an end. E.g., “that’s the case for the defence”

PROCEDURE FOR VISIT TO THE LOCUS IN QUO

 At any stage in the course of proceeding/trial, there may be need for the court to visit the
scene of crime. This is called locus in quo.
 the essence of locus visit is for the court is to ascertain facts, clear doubts and see things
by itself to assist it in just determination of the case.

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 The Visit to Locus can take two forms;

i. The court may adjourn its proceedings to the scene of crime, take evidence at the scene and
adjourn to continue its proceedings. While at the scene of crime, the court will observe all
its rules relating to taking of evidence from witnesses of what it saw at the locus in quo.
ii. The court may adjourn its proceedings in court to a later date and fixed a date to visit the
locus before the next adjourned date. After the visit, the proceedings in court resumes on
the adjourned date. Evidence relating to what the witnesses saw at locus will be given in
the court room when the court has returned to the court S263(1) ACJA

 The accused must be present at the place of locus or at all time when the visit is carried out
S 262(2) ACJA.
 Application for locus visit can be made by a party subject to the discretion of the court or
can be ordered by the court suo motu Unipetrol plc v. Adireje Ltd, S127(1)(2) EA.
 On a visit to locus in quo, it is necessary for the trial to judge make a record of the
proceedings of what transpired at the scene.
 The effect of noncompliance with the procedure of locus visit would not nullify the
proceedings unless the accused can show that he suffered a miscarriage of justice by reason
of noncompliance Unipetrol Nig Ltd v Adireje Ltd.

APPLICATION OF THE EX-IMPROVISO RULE.

 The Ex-improviso rule is a rule of evidence where the prosecution may be allowed to call
evidence in rebuttal of evidence of the defence where the defence raises some facts not
within the contemplation of the prosecution (in the course of giving evidence) S241 ACJL,
361 ACJA and ACJL Kano.
 This is usually where the defence raises new issues which the prosecution wouldn’t have
contemplated
 The prosecution applies for the leave of court to call evidence in rebuttal.

FINAL ADDRESS FOR THE PARTIES

 This is the last stage of the trial before judgment. At this stage, parties are allowed to file
and adopt their final written address.
 The purpose of final address is to summarize and articulate facts as contained in the
evidence of witnesses before the court and apply the relevant laws to those facts.
 Final address is meant to assist the court in the quick understanding of how to resolve the
issues in the case Haruna v University of Agric Makurdi (2006)
 Closing address does not form part of the evidence before the court and the court is not
bound to decide the issues for determination as raised by the respective parties.
 Where the right of final address is denied a party, it may lead to reversal of the judgement
of the court where it can be proved that by virtue of the denial, a miscarriage of justice is
occasioned S294(1) CFRN; Asiru v Ayoade (2006)
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 After the close of evidence for both parties, the defence is called upon to address the court
after which the prosecution will also do same and the defence can only reply on point of
law S269(1) ACJL
 Counsel may waive their rights of giving final address. They cannot be compelled to make
the address.
 Under the ACJA, unless the court directs otherwise, there is no provision prescribing the
form in which the address should be delivered.
 In practice, the defence is given some days (subject to the discretion of the court) to file his
final written address while the prosecution is given fewer days to file his own after he might
have been served by the defence.

o The court now gives the parties a date for adoption of their final written addresses after
which a date for judgment is slated.
o In Lagos, under the ACJL, final addresses are expected to be in writing and to be read
in open Court S269(2) ACJL Lagos.

 Where the prosecutor is a police officer (not a legal practitioner) or a private prosecutor,
his right to final address depends on the manner in which the defendant conducted his
defence.

Such right may arise as follows:

 Where the defendant testified in his defence but did not call any witness or called only a
witness as to character and tendered no document, the prosecutor shall not have a right of
reply S304(1) ACJA, Alh v COP, Aghachi v. The COP.

 Where the defendant testified in his defence and called witnesses who gave evidence other
than evidence as to character or the accused tendered document in support of his case, the
prosecution has a right of closing address S270 ACJL Lagos, 304(2) ACJA.

 Where the defendant in his closing address introduces new matter not supported by
evidence, with the leave of court the prosecution may reply to such new matter S304(1)
ACJA.

 A law officer or a police officer who is a legal practitioner has a right of reply to the address
of the defence at all times no matter the strategy adopted by the defence S271 ACJL,
304(3) ACJA, 305(3) Kano.

 A law officer is defined in Awobotu v. The State to mean the officers in the Ministry of
Justice, S1 CC. However, a private prosecutors engaged by the A.G. or the Director of
Public Prosecution (DPP) to prosecute cases on behalf of the State may qualify as law
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officers. SS 494 ACJA, 371ACJL Lagos, 2 ACJL Kano on definition of law officer.as
““law officer” means the AGF and the SGF and includes the DPP and such other qualified
officers, by whatever names designated, to whom any of the powers of a law officer are
delegated to by law and a private LP authorised by the AGF to appear for and on behalf of
the AGF.”

 The right of reply is discretionary and the law officer may choose not to reply or exercise
his right Adamu v. The A. G., Edo State (1986) 2 NWLR 284.

 The SC held in Ndu v The State (1990) NWLR 550 that a party or his counsel cannot
confer on himself the right to do so at his pleasure. A party or counsel may forfeit or be
taken to waive his right of address if he fails to address when called upon to do so at the
close of the evidence. Counsel's failure to address does not vitiate the proceedings although
address will be of immense assistance to the judge if he exercises this right.

Composition of the Court:

The Magistrate or Judge presiding on the case shall hear the case from arraignment to sentence.

The composition must be constant and if altered (i.e., by transfer, retirement or death of the officer
presiding) the trial must commence de novo - afresh. Ogbunyinya v. Okudo (1976) 6 -9 S.C.32;
Umukoro v. State (1976) 6 U.I.L.R.169.

In Gabriel Iyela v The COP (1969) NMLR 180, at the time the Magistrate sentenced the accused
in Kaduna, he had been transferred to another State. He came back and delivered the judgment.
This was held to be no judgment since he had vacated office, he could not deliver the judgment
again.

Note the innovation in Section 396 (7) ACJA: Notwithstanding the provision of any other law to
the contrary, a judge of the HC who has been elevated to the CA shall have dispensation to
continue to sit as a HC judge only for the purpose of concluding any part- heard criminal matter
pending before him at the time of his elevation and shall conclude the same within reasonable
time: Provided that this subsection shall not prevent him from assuming duty as a Justice of the
CA.

Where a judge or Magistrate, having tried a case is prevented from delivering his judgment or
sentence by illness or other unavoidable cause, such judgment or sentence, if the same had been
reduced into writing and signed by the judge or Magistrate, may be delivered and pronounced in
open Court in the presence of the accused by any other judge or Magistrate Ss 281 ACJL Lagos,
315 ACJA, 316 ACJL Kano.

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13.0 JUDGMENT AND SENTENCING

JUDGMENT DEFINED
Judgment (verdict) is defined as “A Court’s final determination of the rights and obligations of the
parties in a case”, Black’s Law Dictionary 7th Edn. Page 846., S 6(6)(b) CFRN.

Judgment marks the end of a trial before a competent court. In Criminal Matters in Nigeria, it is
regulated by Ss 275 ACJL Lagos; 308 ACJA, 309 ACJL Kano, & 294 CFRN.

At the close of evidence by the parties and final address, the court proceeds to judgment. The
writing and delivery of judgment/sentencing by a competent court on all the issues (charges and
counts also) raised by the parties signifies the end of a criminal trial.

PLACE FOR DELIVERY OF JUDGMENT

Judgment is to be delivered in open court Ss 36(4) CFRN, 307(2) ACJA, 200 ACJL Lagos,
308(2) ACJL Kano.

Substance of judgment to be explained to the defendant in the language he understands S36(6)(e)

CFRN.

WHEN TO DELIVER JUDGMENT

Judgment to be delivered when the defendant is present in Court or has surrendered to the custody
of the court Ss 352(4) & (5) ACJA, 352(4) & (5) ACJL Kano. If not, the entire proceedings will
be a nullity Audu v State (2016) 1 NWLR (1494)557; Mohammed v State (2015).

FEATURES/CONTENTS OF A VALID JUDGMENT SS 308(1) ACJA, 275 ACJL Lagos,

309 ACJL Kano.
S308(1) ACJA provides that, “the J or Magistrate shall record his judgment in writing and every
judgment shall contain the point or points for determination, the decision and the reasons for the
decision and shall be dated and signed by the J or Magistrate at the time of pronouncing it.”

Thus, the features/contents are:

1. Be in writing
2. Contain the point or points for determination
3. Contain the decision
4. Contain the reasons for the decision
5. Be dated and signed by the judge or magistrate at the time of pronouncing it

JUDGMENT MUST BE IN WRITING

Generally, no court is allowed by law in Nigeria to deliver an oral judgment SS 308(1) ACJA, 275
ACJL Lagos, 309 ACJL Kano, 294(1) CFRN, Queen v Fadina (1958); Unakalamba v COP
(1958) 3 FSC 7; Osayande v State.
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Judgment dictated in open Court is not written judgment. In Okoduwa & Anor v. The State
(1975) 5 S.C. 23. Instead of recording his judgment in writing and signing it and then pronouncing
it at the same time, Justice Omo-Eboh dictated the judgment. The SC held that he was in error.

A HC judge cannot deliver judgment based on notes made by him during trial, which notes did not
form part of the record of appeal and thereafter wrote a judgment which formed part of the record
of appeal. The reason is that once a judge has pronounced judgment, he is functus officio and any
Judgment reduced into writing thereafter cannot be looked at by the CA, The Queen v Fadina.
Thus, judgment read from note made by the judge during the course of the trial is an oral judgment.

Judgment read from notes made by the judge’s son/daughter is an oral judgment Ajayi v State
(1978). In the case, the judge in the course of reading the judgment said he was reading the
judgment from a note scribbled by his son. The record sent to the Appeal Court did not indicate
this. By attempting to date the latter judgment- the one sent to the Court of Appeal- which he did
not read to the accused in Court so as to tally with what he actually read in Court, he was held to
be in violation of S 245 CPL similar to above relevant sections.

Judgment dictated in court by judge to a stenographer/typist remains an oral judgment Okoduwa

v State.

A judge could write the judgment after the close of all evidence, subject to any amendment he may
wish to make on the bench during or after final addresses. However, he must wait till after the final
addresses before he can deliver the judgment R. v. Cobolah 10 W.A.C.A.283.

Oral Judgment and the Law

In the FCT (ACJA), a magistrate can generally deliver an oral judgment (albeit in part as it is after
briefly recording his decision and reason for the decision in the book). S308(2) provides that “the
Magistrate, instead of writing the judgment, may record briefly in the book his decision or finding
and his reason for the decision or finding, and then deliver an oral judgment.” Thus, by this section,
a Magistrate may deliver an oral judgment in the FCT, Unakalamba v The Police (1958).

It was held in Osayande v. The C.O.P (1985) 3 S.C. 154 that the judgment of a Magistrate is not
invalidated for failure to comply strictly with Section 245 Criminal Procedure Law. Only a
minimum compliance is required. SC held that this was not sufficient to invalidate the proceedings.

However, there is no such provision in both SS 275 ACJL Lagos and 309 ACJL Kano, thus, by
necessary implication oral judgement is prohibited in both states.

S294(1) CFRN provides that “every court established under this Constitution shall deliver its
decision in writing not later than ninety days after the conclusion of evidence and final addresses

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and furnish all parties to the cause or matter determined with duly authenticated copies of the
decision within seven days of the delivery thereof.”

Does S308(2) ACJA conflict with S294(1) CFRN? The answer is NO.
S308(2) ACJA does not conflict with the CFRN because the constitutional requirement that every
judgment be in writing under S294(1) CFRN applies only to “every court established under the
constitution”. The Magistrate court is not established under the constitution as it is not listed under
S6(5) CFRN. Magistrate courts are established by the Laws enacted by the House of Assembly of
each State Okoruwa v State (1975).

Although, this reasoning may be questionable because S6(5)(k) CFRN makes additional provision
to the courts to which the section applies “such other court as may be authorised by law to exercise
jurisdiction at first instance or on appeal on matters with respect to which a HA may make laws.”
Does it then not cover magistrate courts? Well, the court has answered in the negative.

JUDGMENT MUST CONTAIN THE POINT(S) FOR DETERMINATION

The judgment must indicate whether or not the accused committed the offence charged; or whether
he committed a lesser offence which he was not charged but in appropriate cases may be convicted.

Regard must be had to the substantive criminal law to identify the ingredients of the offence.
Regard must be had to the evidence adduced. These are the basis for the determination of the guilt
or innocence of the accused, Tanko v State (2009).

Court must make specific findings on each point identified. Decision of the court on each point
will lead to the findings of the court.

QUERY: What findings can the court make in a judgment?

TYPES OF FINDING IN A JUDGMENT:

1. Not Guilty
The Court may find the Defendant not guilty of the charge. Where such a finding is made the
Defendant shall be immediately discharged and acquitted Ss 309 ACJA, 276 ACJL Lagos, 310
ACJL Kano.

Any delay in release of the Defendant from custody after finding of not guilty could amount to
unlawful detention, State v Okpala (2012) 3 NWLR (Pt. 1287) 338; Bamaiyi v AGF (2001).

2. Guilty Findings
The Court may on the other hand find the defendant guilty of the offence(s) charged. Where such
a finding is made, the court may proceed with or adjourn for sentencing hearing before passing a

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sentence Ss 311(1) ACJA, 278(1) ACJL Lagos, 312(1) ACJL Kano. But note allocutus in the
preceding sections.

DECISION OF THE COURT ON THE POINT(S) FOR DETERMINATION

The J must analyse or review the evidence before him to establish if there is proof beyond
reasonable doubt of the ingredients of the offence(s) Onafowokan v State; Willie John v State.

Judgment must be given on every count, where there are more counts than one. Also, if the
judgment is a judgment of conviction, it shall specify the offence for which and the Section under
which the accused is convicted and sentenced.

In Yesufu v. The I G P 1960 L.L.R. 140, the accused was charged with some counts of stealing
for which he was found guilty. The Magistrate did not however specify the particular kind of
stealing he was talking about; neither did the J specify the punishment allotted to such counts of
which he found the accused guilty. Therefore, the accused was discharged and acquitted. See also
Aigbe v. The State (1976) NMLR 184. See however Bankole v. The State (1980) 1 N.C.R.334.

THE REASON(S) FOR THE COURT DECISION

The trial court must carefully evaluate the evidence of the prosecution and defence to form a good
reason Daudu v FRN (2018)10 NWLR (Pt.1626)169@194 SC.

Where the trial court prefers a version of the evidence to the other, the reason must be stated State
v Ajie (2000).

Reasons for the decision is not court sensitive Nigerian Army v Aminun Kano (2010), Per
Oguntade JSC held that “it is compulsory that judgment of civil or military courts should show
the reasoning behind the conclusion arrived. The judgment should discuss the nature of the
evidence called, which evidence is rejected or accepted and why. It is only in this way that the
constitution of the Federal Republic of Nigeria, 1999 could be complied with. A judgment whether
in the military or civil courts which does not ex facie show the basis of a pronouncement is an
infraction of the citizen’s right to fair hearing.” Bakoshi v Chief of Naval Staff (2004).

Failure to give reasons for the decision will lead to quashing the decision on appeal Nwaefulu v
State (1981); Adamu v The State; Willie John v The State (1967) NMLR 101.

In Aigbe v. The State (1976) NMLR 184, the trial judge inter alia found the accused guilty of
some of the counts and sentenced him. He did not give any reasons for his decisions and on appeal
it was held that he violated Section 245 C.P.L.

In Nwaefulu & Anor v. The State (1981) 1 N.C.R.229 where the Magistrate failed to give reasons
for his decision.
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JUDGMENT MUST BE DATED AND SIGNED BY THE JUDGE

An undated and unsigned judgment is worthless Haruna v Uni. Agric. Makurdi; Sunday v State
(2011); Bakoshi v Chief of Naval Staff (2004). In Haruna, it was held that an unsigned and
undated judgment is null and void and of no effect.

Where a judgement is accompanied by ancillary orders appearing immediately after the judgment,
a signature appearing after the orders instead of after the judgment amounts to sufficient
compliance.

In Obareki v. The State (1982) 2 N.C.R.63, the TJ neither dated nor signed the judgment but
rather signed after the order stating the conditions of appeal. The appellant appealed against the
conviction on the ground that the judgment was neither signed nor dated. It was held that the
signature and date on the order for conditions for appeal related not only to the orders but to the
judgment as well, and hence sufficed. See also Tsalibawa v. Habiba (1991) 2 NWLR 461.

The trial judge may write and sign a judgment and another judge will deliver and date it Ss 294(2)
CFRN, 281 ACJL Lagos, 315 ACJA, 316 ACJL Kano. But another judge who delivers a
judgment must date and sign it irrespective of previous signing AGF v ANPP (supra). Does it then
mean that the judgment will be signed and dated twice? SS 308 ACJA, 275 ACJL Lagos and 309
ACJL Kano referred to date and signature of the magistrate or judge writing the judgment, it
would seem conflicting to now interpret the provisions of Ss 294(2) CFRN, 281 ACJL Lagos,
315 ACJA, 316 ACJL Kano to mean anything otherwise as was suggested by AGF v ANPP that
it has to be also signed by the M/J delivering the judgment to reflect the date of delivery, it may
also be because of the last word in the section “at the time of pronouncing it.”

The relevant date is the date of delivery of the judgment or date of pronouncement. This is also
the opinion of Agaba. QUERY: WHY? See Ss 275 ACJL, 308 (1) ACJA, AGF v ANPP.

HOW TO PROVE SIGNATURE & DATE

It is the manuscript of the judgment and not the typed judgment that is used in proving signature
and date Sunday v State (2011) All FWLR (Pt. 568) 922 at 941.

EFFECT OF FAILURE TO COMPLY WITH SS 275 ACJL Lagos, 308 ACJA, 309 ACJL
Kano.
Generally, non-compliance renders the judgment a nullity, but it depends on whether it leads to
irregularity or miscarriage of justice Bakoshi v Chief of Naval Staff (2004); Willie John v The
State (1976); Unakalamba v COP (1958); Onafowokan v The State (1987); Aigbe & Anor v
The State (2009); Obareki v State (1982).

Depending on the circumstances of the case, when such happens, the court may order either a
retrial or an acquittal. It is usually a retrial e.g., in Aigbe v State but on rare instances can also be
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acquittal like in Ajayi v Zaria NA wherein the appellant had already served the substantial part of
the sentence, the court acquitted as it may amount to injustice having him go through trial again.

TIME LIMIT TO DELIVER JUDGMENT S 294(1) CFRN

S294(1) CFRN provides that “every court established under this Constitution shall deliver its
decision in writing not later than ninety days after the conclusion of evidence and final addresses
and furnish all parties to the cause or matter determined with duly authenticated copies of the
decision within seven days of the delivery thereof.”

To be delivered within 90 days after conclusion of final addresses by counsel. Where parties elect
to waive final addresses, time starts to run at conclusion of the case for defence and the court
adjourns for judgment.

Compliance with S294(1) CFRN is mandatory Shehu v State (1982). In the case, the appellant
was tried and found guilty of culpable homicide and the court adjourned for judgment but it wasn’t
delivered until after 5 months. He contended that falling outside of the 90 days period renders the
judgment a nullity, his argument was upheld pursuant to S258(1) CFRN 1979 but this may not be
upheld now by virtue of S294(5) CFRN.

EFFECT OF FAILURE TO DELIVER JUDGMENT WITHIN 90 DAYS

S294(5) CFRN provides that “the decision of a court shall not be set aside or treated as a nullity
solely on the ground of non-compliance with the provisions of subsection (1) of this section unless
the court exercising jurisdiction by way of appeal or review of that decision is satisfied that the
party complaining has suffered a miscarriage of justice by reason thereof.”

Previously it renders the judgment void under the 1979 CFRN S 258(1).

Under the 1999 CFRN under S294(5) failure does not render the judgment void but voidable. It
shall be a nullity only if the appellant shows that he has suffered a miscarriage of justice by reason
of the delay Ogbu v State (2003); Aposi v The State (1971). Onus is therefore on the appellant
to prove the miscarriage of justice.

DELIVERING OF JUDGMENT
1. A judge may be transferred, elevated, retired. In such a case, he cannot deliver a valid judgment.
In Udeogu v FRN 2020, SC held S396(7) ACJA void for being inconsistent with the provisions
of SS 250 and 290 CFRN, an elevated judge cannot return to complete a part heard.

2. Can Judgment be delivered in the absence of the Judge who heard the case? YES! Ss 294(2)
CFRN, 281 ACJL Lagos, 315 ACJA, 316 ACJL Kano. A written and signed judgment by a
judge may be delivered by another, if the trial judge is ill or unavoidably absent.

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S315 ACJA provides that “where a Judge or Magistrate having tried a case is prevented by illness
or other unavoidable cause from delivering his judgment or sentence, the judgment or the sentence,
if it has been reduced into writing and signed by the Judge or Magistrate, may be delivered and
pronounced in open court by any other Judge or Magistrate in the presence of the defendant.” See
AGF v ANPP (2003); Iyela v COP (1969).

3. Another judge who delivered the judgment must date and sign it, irrespective of the previous
signing and dating AGF v. ANPP.

4. Each justice of SC or CA shall express or deliver his opinion in writing or state in writing that
he adopts the opinion of another judge who delivers a written opinion S 294(2) CFRN.

5. For the purpose of delivering its decision under this section, the SC, or the CA shall be deemed
to be duly constituted if at least one member of that court sits for that purpose S294 (4) CFRN.

6. Composition of trial court to remain constant from commencement to judgment. If composition

is altered, case to start de novo Iyela v COP (1969) N.M.L.R 130.

7. If case starts de novo, evidence in the previous trial is abandoned Uguru v State (2002).

JUDGMENT AT COURT OF APPEAL AND SUPREME COURT

S294 CFRN provides
(2) Each Justice of the SC or CA shall express and deliver his opinion in writing, or may state in
writing that he adopts the opinion of any other Justice who delivers a written opinion:

Provided that it shall not be necessary for the Justices who heard a cause or matter to be present
when judgment is to be delivered and the opinion of a Justice may be pronounced or read by any
other Justice whether or not he was present at the hearing.

(3) A decision of a court consisting of more than one Judge shall be determined by the opinion of
the majority of its members.

(4) For the purpose of delivering its decision under this section, the Supreme court, or the court of
appeal shall be deemed to be duly constituted if at least one member of that court sits for that
purpose.
All Justices who sat on the case need not be present to deliver judgment N.J.C v Dakwang (2019).
One Justice of the court suffices whether or not he was among the panel.

MAJORITY DECISION
▪ Decision of a Court consisting of more than one judge is determined by opinion of the
majority N.J.C v Dakwang (2019) 7 NWLR (Pt. 1672) 532 at 552 SC.
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▪ Change of quorum of trial court and appellate court between hearing and delivery of
judgment: Distinction thereof N.J.C v Dakwang (2019) 7 NWLR (Pt. 1672) 532 .
▪ If the judge ceases to be a Justice of the court before the date fixed for judgment, his opinion
cannot be read/delivered but pronounced, Shitta-Bey v AGF (1998) 10 NWLR (Pt.570)
392; A.G Imo v A.G Rivers (1983) ; Ajiboye v Ishola (2006) 13 NWLR (Pt.998)628.

AMENDMENT OF JUDGMENT
Once a Judge pronounces judgment, he becomes functus officio Unakalamba v COP. In Bakare
v Apena (1986) 6 SC 460 – The judge after delivering judgment discovered an error and amended
the judgment. Thereafter he invited the parties and delivered the amended judgment. The amended
judgment was nullified on the ground that the judge has become functus officio.

WHEN JUDGMENT MAY BE AMENDED

While there were grounds for amendment of judgement under CPL and CPCL, there are no express
provisions for such under ACJA, ACJL Lagos and ACJL Kano. The closest provisions to that are
in SS 318 ACJA, 284 ACJL Lagos and 319 ACJL Kano but they are on amendment of warrants
or orders for commitment based on an existing judgment and not on the judgment itself.

S318 ACJA provides that;

The court may, at any time, amend any defect in an order or warrant of commitment and no:

(a) omission or error as to time and place; or

(b) defect in form in any order or warrant of commitment given under this Act,

shall be held to render void or unlawful an act done or intended to be done by virtue of the order
or warrant if it is mentioned, or may be inferred, that it is founded on a conviction or judgment
sufficient to sustain it.

But in practice other instances may include:

1. To correct clerical error.

2. To correct errors from accidental slip.
3. To make the intention of the court clear.

CONCEPT OF ARREST OF JUDGMENT

This is not within our laws but obtainable in England and some other jurisdictions. It is simply a
motion to correct a defect in judgement thereby suspending the delivery of such judgment until
such is corrected. Although, not called that name in Nigeria but such a motion may be filed and it
would have similar effect since a court is under obligation to hear motions filed before it before
judgement Shettima v. Goni.
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WHAT IS CONVICTION?
Conviction is the act or process of judicially finding someone guilty of a crime- Black’s Law
Dictionary 7th edn. page 335, Yalekhue v Omoregbe (1991) 3 NWLR (Pt.177) 94.

It does not matter that the accused was not given a custodial sentence, Yalekhue v Omoregbe.

The court’s judgment must convict the accused before he is sentenced R v Ekpo (1947). The D
was sentenced to death for murder but he appealed that he was not expressly convicted before
sentencing but the court held that although no verdict of guilty of murder was seen on the records,
the evidence and findings show conviction for murder.

But if the records don’t show it, it will be quashed as was the case in Oyediran v The Repulic.

The judge must convict the accused before sentence. In Oyediran v The Republic, the judge did
not convict the accused on some of the counts before passing sentence. The sentence was held
void. Thus, the court must pronounce sentence on each count where the counts are more than one.

It was also held that where there is more than one D, a separate verdict must be returned in respect
of each D Bankole v The State, The Police v Yesufu (1960) L.L.R. 140.

EFFECT OF FAILURE TO RECORD CONVICTION BEFORE SENTENCE

Depends on the circumstances of the case.
• If the finding of guilt can be gleaned from the records, Court will see it as an irregularity
that can be remedied by appellate court R v Ekpo.
• If it is not discernible from the records, failure to enter a conviction may invalidate the
judgment and lead to an order of retrial Oyediran v The Republic, Adamu v State

THE POWER OF THE TRIAL COURT TO CONVICT ON OTHER CHARGES

PENDING; SS 313 ACJA, 279(1) ACJL Lagos, 314 ACJL Kano.
The court may take cognisance of other offences pending against the convicted person before
passing sentence.

S313 ACJA provides;

(1) Where a defendant is found guilty of an offence, the court may, in passing sentence, take into
consideration any other charge then pending against him, where the defendant admits the other
charge and desires that it be taken into consideration and if the prosecutor of the other charge
consents.

(2) Where a desire is expressed under subsection (1) of this section and consent given, the court
shall:
(a) make an entry to that effect on the record book;
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(b) the prosecution shall state the facts of the case in accordance with section 300 of this
Act.

(3) Where the other charge pending against the defendant is considered in accordance with
subsections (1) and (2) of this section and sentence passed on the defendant with consideration or
in respect of the other pending charge, the defendant shall not, subject to the provisions of sections
236 to 237 of this Act, or unless the conviction has been set aside, be liable to be charged or tried
in respect of any such offence so taken into consideration.

CONDITIONS PRECEDENT IN THE SECTION ABOVE

(a) Must have been found guilty of the present offence(s);
(b) Admission of guilt of those other offences by the defendant;
(c) The offence must have been charged.
(d) Agreed that the other charges be taken into consideration in passing sentence on him;
(e) The prosecutor of that other charge must also consent.
(f) The Court must have jurisdiction to try the offence.

The grave offence and the lesser offence must both be provided for under the same law FRN v
Adeniyi (2019) 7NWLR (Pt. 1671)238 SC; Okobi v State (1984).

Accused or his counsel may apply to the court after conviction to take cognisance of such offences
pending against him in other courts.

CAVEATS ON TAKING OTHER OFFENCES INTO CONSIDERATION

• The court must not pass a greater sentence which exceeds its jurisdiction.
• The maximum sentence to be imposed on the accused shall not exceed that for the offence
which he has been convicted.

AUTRO FOIS CONVICT IN TAKING OTHER OFFENCES INTO CONSIDERATION

Where a sentence is passed on the accused after considering other offences, he cannot again be
tried for those other offence unless the conviction is set aside See above provisions.

CONVICTION FOR AN OFFENCE NOT EXPRESSLY CHARGED

Accused can only be tried and convicted for an offence which he has pleaded and expressly
charged S 36(6)(a) CFRN.

EXCEPTIONS FOR CONVICTION FOR OFFENCE NOT EXPRESSELY CHARGED

❖ Statutes have provided exceptions Ss 223-231 ACJA, 166-171 ACJL Lagos.

ACJA SS 223 – 231 provides as follows:

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223. Where defendant charged with one offence may be convicted of another.
Where a defendant is charged with one offence and it appears in evidence that he committed a
similar offence with which he might have been charged under the provisions of this Act, he may
be convicted of the offence, which he is shown to have committed although he was not charged
with it.

224. Full offence charged, attempt proved.

Where a defendant is charged with an offence but the evidence establishes an attempt to commit
the offence, he may be convicted of having attempted to commit that offence although the attempt
is not separately charged.

225. Attempt charged-full offence proved.

Where a defendant is charged with an attempt to commit an offence but the evidence establishes
the commission of the full offence he shall not be entitled to an acquittal but he may be convicted
of the attempt and punished accordingly.

226. Liability as to further prosecution.

Where a defendant has been convicted of an attempt under either section 224 or 225 of this Act,
he shall not subsequently be liable to be prosecuted for the offence for which he was convicted of
attempting to commit.

227. On charge of an offence conviction as accessory after the fact to that or connected
offence may follow.
Where a defendant is charged with an offence and the evidence establishes that he is an accessory
after the fact to that offence or to some other offence of which a defendant charged with the first-
mentioned offence, may be convicted by virtue of any of the provisions of this Act, he may be
convicted as an accessory after the fact to that offence or that other offence, as the case may be
and be punished accordingly.

228. Defendant tried for lesser offence but a higher offence is proved.
(1) Where on the trial of a defendant for a lesser offence it appears that the facts proved in evidence
amount in law to a higher offence not charged, the defendant shall not by this reason be acquitted
of the lesser offence.

(2) The defendant referred to in subsection (1) of this section is not liable afterwards to be
prosecuted for the higher offence proved, but the court may in its discretion stop the trial of the
lesser offence or direct that the defendant be charged and tried for the higher offence, in which
case, the defendant may be dealt with in all respects as if he had not been put to trial for the lesser
offence.

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(3) Where a charge is brought for the higher offence pursuant to this section, the defendant shall
be tried before another court.

229. Conviction of kindred offences relating to property.

Where a defendant is charged with an offence relating to property and the evidence establishes the
commission by him with respect to the same property of another offence, he may be convicted of
that other offence although he was not charged with it.

230. Defendant charged with burglary may be convicted of kindred offence.

Where on trial for burglary, housebreaking or related offence, the facts proved in evidence justify
a conviction for some other offences and not the offence with which the defendant is charged, he
may be convicted of the other offence and be punished as if he had been convicted on a charge or
an information charging him with the offence.

231. On charge of rape conviction under defilement, incest, unnatural or indecent assault
may follow.
Where on a trial for rape, defilement, incest, unnatural or indecent offences against a person, the
facts proved in evidence can ground conviction for an indecent assault and not the offence with
which the defendant is charged, he may be convicted of the offence of indecent assault, and be
punished as if he had been convicted on a charge or an information charging him with the offence
of indecent assault.

NOTABLES:
An accused charged of greater offence may be convicted of lesser offence Okeke vs State.

In Adava v. State, the defendants who were charged and convicted for homicide punishable with
death. At the SC, their appeal was allowed and they were convicted for a lesser offence of
voluntarily causing hurt without provocation. The rationale is that where an accused is charged for
a graver offence, he is deemed to have notice of the lesser one.

In Nwachukwu v. The State and Maja v. The State, it was held that where a D is charged for an
offence, he may be convicted of a lesser offence where the facts proved cannot earn him a
conviction on the offence charged. He needs not be informed of the lesser offence. He is deemed
to have had notice of it because he had notice of the greater offence for which he was charged.

The effect of the foregoing principle is that it is no violation of the fundamental human rights not
to inform the accused of lesser offence for which he is convicted if he is informed of a graver
offence Uguru v. State [2002] 4 S.C.N.J. 282.

Also, a D can be convicted of another offence by which he was not charged based on the evidence
disclosed at trial without calling him to make a fresh plea. In Nwachukwu v. State, the D was
being tried for armed robbery. At the end of the trial, the offence was not proved but he was
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convicted of robbery. The D’s appeal was dismissed. The ingredient of offence for which the D is
to be convicted must be contained in the evidence of the offence for which he is been tried.

The court can convict for a lesser offence not charged provided it is supported by evidence where
accused is charged with offence consisting of several particulars. Ingredients must be embedded
in proof of the main offence Babalola v State (1989); Kada v State (1991).

The offence convicted must carry a lesser punishment S169 ACJL.

D charged with an offence may be convicted of attempt to commit that offence Ss.160 ACJL, S.
224 ACJA.

An accused convicted of attempt to commit a substantive offence cannot be prosecuted again for
the substantive offence Ss. 162 ACJL; S. 226 ACJA & S36(9) CFRN

Prosecution may at the close of evidence but before judgment apply to amend the charge to include
the substantive offence SS 155(1) ACJL.

• Note the mandatory procedure the court must follow in amended charge;
o Procedure
o Read and explain the new charge to the defendant S216(2) ACJA, 155(2) ACJL
Lagos, S223(3) ACJL Kano.
o The defendant is to enter a fresh plea on the amended charge S217(1) ACJA, 156(1)
ACJL Lagos, S223(3) ACJL Kano
o Adjourn if proceeding immediately with the trial will prejudice the defence or
prosecution S218(1) ACJA, S156(3) ACJL Lagos, S225(1) ACJL Kano
o Recall of witness(es) S219 ACJA, S157 ACJL Lagos, S226 ACJL Kano
o Endorsement S218(2) ACJA, S156(4) ACJL Lagos, S225(2) ACJL Kano

Where the charge is amended to include the substantive offence, it will be deemed to be in the
alternative so that accused cannot be convicted on both Azie v The State (1973).

Convict cannot be charged for a federal offence and convicted under State offence Bello v State
(2020) 3 NWLR (Pt. 1710) 72 @ 92 SC.

ALLOCUTUS SS 277 ACJL Lagos, 310 ACJA, 311 ACJL Kano.

It is an unsworn statement from a convicted person to the judge in which he pleads for mercy,
explains his conduct, apologise for the crime or says anything else in an effort to lessen the
impending sentence Black’s Law Dictionary, 7th edn. page 75.

ON ALLOCCUTUS, the SC in Francis v. Federal Republic of Nigeria [2021] 5 NWLR (Pt.

1769) 398 at 412, per Eko, JSC: “Allocutus”, as defined in Earl Jowitt: The Dictionary of English
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Law, is what the convict has to say why the court should not proceed to sentence him. That is,
what the convict shows “Why the sentence should not be passed.” The convict, not the defence
Counsel, pleads his allocutus. In other words, it is for the convict himself to show cause why the
prescribed sentence for the offence he was convicted of be not passed or imposed on him.

In summary, it the convict him/herself that delivers the allocutus and not his/her counsel.

POINTS ON ALLOCUTUS
• It is made after conviction or plea of guilty, before sentence.
• The registrar or the judge will inform the convicted person of his right to make an allocutus
S 277 ACJL but ACJA and ACJL Kano are silent on who to make the call.
• It is a plea in mitigation; therefore, it does not absolve the convicted person of punishment
Ogbeide v COP (1964).
• Allocutus is ineffective where the law relating to an offence provides for a mandatory
punishment or minimum punishment.
• Allocutus must be made by the defendant and not his counsel on his behalf as was held by
the SC in Francis v FRN 2021.
• No amount of allocutus will mitigate a capital punishment State v John (2013).
• After the convicted person makes his allocutus, the court proceeds to sentence.
• Calling for an allocutus by the judge instead of registrar does not vitiate the sentence S 277
ACJL Lagos.
• Statements made by a convicted person in allocutus is not subject to cross-examination.

EFFECT OF FAILURE TO CALL FOR AN ALLOCUTUS

• Failure to call on the convicted person to make an allocutus does not affect the validity of
the sentence or trial Edwin v State (2019), S 277 ACJL.
• Allocutus is neither a fundamental right nor a defence in law.

SENTENCING
Sentence is defined as “the punishment imposed according to law on a criminal wrongdoer after
his conviction” Black’s Law Dictionary 7th Edn. page 1367; Yalekhue v Omoregbe.

ACJA APPROACH TO SENTENCING

▪ ACJA and ACJL Kano appear to recognize both concepts of retributive and restorative
justice. Consequently, SS 401(2) ACJA, 395 ACJL Kano capture the following main
objectives of sentencing:

S401(2) ACJA provides that: in determining a sentence, the court shall have the following
objectives in mind, and may decide in each case the objectives that are more appropriate or even
possible:
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(a) prevention, that is, the objective of persuading the convict to give up committing
offence in the future, because the consequences of crime is unpleasant;

(b) restraint, that is, the objective of keeping the convict from committing more offence
by isolating him from society;

(c) rehabilitation, that is, the objective of providing the convict with treatment or training
that will make him into a reformed citizen;

(d) deterrence, that is, the objective of warning others not to commit offence by making
an example of the convict;

(e) education of the public, that is, the objective of making a clear distinction between
good and bad conduct by punishing bad conduct;

(f) retribution, that is, the objective of giving the convict the punishment he deserves, and
giving the society or the victim revenge; and

(g) restitution, that is, the objective of compensating the victim or family of the victim of
the offence.

PRELIMINARY POINTS ON SENTENCE

• The courts sentence must be pronounced in open court Ss 36(4) CFRN, 281 ACJL Lagos,
315 ACJA, 316 ACJL Kano
• It must also be pronounced in the presence of convict Asakitipi v State (1993); Ss. 352 (5)
ACJA; 281 ACJL, 352 (5) ACJL Kano.
• The sentence of the court must be the one prescribed for the offence in the law creating it
Ekpo v State (1982). In the case, the D was tried and convicted for the rape of an underaged
girl and sentenced to a “suspended sentence of three years”, this was overruled on appeal
and changed to three years as there was no suspended sentence in our laws. But what
happens to S460(1) ACJA which provides that “notwithstanding the provision of any other
law creating an offence, where the court sees reason, the court may order that the sentence
it imposed on the convict be, with or without conditions, suspended, in which case, the
convict shall not be required to serve the sentence in accordance with the conditions of the
suspension.” The equivalent is in S442 ACJL Kano but none in Lagos.
• If the court omits to pronounce sentence, the error may be corrected on appeal as an
irregularity Azabada v State (2014).
• The court is not bound to impose the maximum sentence on the accused except it is a
mandatory punishment Olanipekun v State (1979) in the case the TC convicted and
sentenced the D to 7 years imprisonment for dangerous driving being the maximum

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sentence for the offence and held that he lacked the jurisdiction to alter it but on appeal, it
was held that he could give less but not more than maximum sentence provided by law as
contained in S17(1) of the Interpretation Act to the effect that maximum sentence means
that it would not be exceeded not that less cannot be issued; Isaac Slap v AGF (1968).
• Where it is not a mandatory punishment the court may impose a punishment below the
maximum Slap v AGF (1968); S17 Interpretation Act.
• No discretion to go below the minimum penalty Dada v Board of Custom & Excise
(1982); S 320(5) ACJL.
• Where penalty is a term of imprisonment without an option of fine, upon conviction the
court lacks the power to impose option of fine in lieu of imprisonment Dada v Board of
Custom & Excise (1982).
• Where the law provides penalty and is silent on the option of fine, the court can exercise
discretion to impose fine in lieu of penalty 316(1) ACJL Lagos.
• Sentence to be pronounced by the court for every count of offence which an accused is
convicted Oyediran v Republic (1966).
• The sentence may also take effect retrospectively. Note that the Supreme Court held in
Ayomitan v State (2018) LPELR-45700(CA) that commencement date of a sentence is
from the date of conviction.

The discretion of the court is subject to the provision of the court in sentencing:

Mandatory Sentence: this is where the law expressly provides the exact punishment wherein the
court lacks any discretion e.g., capital punishment for armed robbery under S2(1) of the Armed
Robbery & Firearms (Special Provisions) Act.

Minimum Penalty: this is where it provides for what it must not go below. Where it is term of
imprisonment, then the court can’t impose option of fine S316(5) ACJL Lagos. In Dada v Board
of Customs & Excise, the prison term was up to 5 years without an option of fine but the D was
sentenced to 2 years without an option of fine and he appealed that he ought to have been given an
option of fine but the appeal was dismissed.

Maximum Sentence: this is where the law provides for the highest or biggest term and according
to S17(1) of Interpretation Act, it simply means that the court cannot exceed such term but can
give less. The SC also held that in maximum penalty, the has discretion to give a lesser punishment
Amoshima v The State. S416(d) ACJA provides that “a trial court shall not pass the maximum
sentence on a first offender.”

In Slap v The A. G. Federation; the punishment Section provides that an offender shall be liable
to a fine of 6 times the value of the goods. The Magistrate imposed a fine of 3 times the value of
the goods involved. It was held on appeal that the Magistrate had discretion as to the punishment
to give to the D and if properly exercised, the appellate Court could not disturb such discretion.
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CLASSIFICATION OF SENTENCE
1. Custodial Sentence;
2. Non-custodial Sentence.

TYPES OF SENTENCE/PUNISHEMENT
1. Death sentence
2. Imprisonment
3. Fine
4. Caning
5. Haddi-lashing
6. Forfeiture
7. Compensation
8. Deportation
Others:
9. Community service
10. Binding over order
11. Conditional discharge
12. Payment of costs
13. Detention in a reformatory
14. Restitution
15. Probation

DEATH SENTENCE
Capital offences attracts death penalty. The SC has held that death sentence is legal in Nigeria
Kalu v State (1998). The court has no discretion in capital punishment and allocutus is almost a
waste of time.

MODE OF EXECUTION OF DEATH SENTENCE

Armed robbery is via firing squad S1(2) (a)&(b) of Robbery & Fire Arms (special Provisions)
Act 1984.

S402(1) ACJA provides that “punishment of death is inflicted by hanging the convict by the
neck till he is dead or by lethal injection.”

S301(1) ACJL Lagos provides “punishment of death is inflicted by hanging the offender by the
neck till he be dead.”

S396 ACJL Kano provides that “the punishment of death shall be inflicted by a method
pronounced by the court”

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MODE OF PRONOUNCEMENT
S402(2) ACJA provides that “Sentence of death shall be pronounced by the court in the following
form: “The sentence of the court upon you is that you be hanged by the neck until you are
dead or by lethal injection.””

S301(2) ACJL Lagos provides “Sentence of death shall be pronounced in the following form:
“The sentence of the Court upon you is that you be hanged by the neck until you be dead and
may God have mercy on your soul””

No equivalent provision in ACJL Kano.

EFFECT OF FAILURE TO COMPLY WITH THE FORMAT

Failure to comply with the format of pronouncing a death sentence is not fatal to the trial. It is
regarded as a clerical error rectifiable by TC or CA Gano v The State, Olowofoyeku v The State.

DRESSING OF A JUDGE WHEN DELIVERING A DEATH SENTENCE

When pronouncing a sentence of death, the Judge is robed in red gown and black Barret.

PERSONS EXEMPTED FROM BEING SENTENCED TO DEATH:

Pregnant Woman: The relevant status of the woman is her status at the time of conviction not
commission of the offence. If she is found guilty of a Capital Offence, she shall be sentenced to
life imprisonment S302(2) ACJL Lagos. It can also be suspended until after birth and the child
weaned S404 ACJA, S398 ACJL Kano.

Child/Young Person: capital punishment shall not be pronounced on them, S405 ACJA, 302(3)
ACJL Lagos, ACJL Kano is silent.

SENTENCE OF DEATH AND PREGNANT WOMAN UNDER ACJA and ACJL Kano
S404 ACJA provides; “where a woman found guilty of a capital offence is pregnant, the sentence
of death shall be passed on her but its execution shall be suspended until the baby is delivered
and weaned.” This is ipsissima verba with S398 ACJL Kano.

S415(4) ACJA also ipsissima verba with S408(4) ACJL Kano and applies mutatis mutandis vis-
à-vis the sections in the provisions, provides; “where in the proceedings under this section, the
court finds the woman in question to be pregnant, the court shall sentence her to death subject
to the provision of section 404 of this Act.”

SENTENCE OF DEATH AND PREGNANT WOMAN UNDER ACJL Lagos

S302(2) ACJL Lagos provides; “where a woman found guilty of a capital offence, is in accordance
with the provisions of section 315 is found to be pregnant, the sentence of death shall not be
passed on her but shall be substituted with sentence to imprisonment for life.”
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SENTENCE OF DEATH AND PREGNANT WOMAN UNDER CHILD’S RIGHT ACT

• Pregnant woman or nursing mother shall not be sentenced to death S221 (2) CRA
• Court to consider non-institutional sentence S221(3) CRA.
• To be kept at a Special Mothers Centre S221(4) CRA.
• Pregnant woman and child not to stay more than 6yrs at SMC S221(5) CRA.
• Mother may be released after the child attains 6yrs or after the death of child while in SMC
S221(6) CRA.

PROCEDURE WHERE WOMAN CONVICTED OF CAPITAL OFFENCE IS ALLEGED

TO BE PREGNANT
Where a woman convicted of an offence punishable with death alleges that she is pregnant, the
court shall, before sentence is passed on her, determine the question whether or not she is pregnant
SS 415(1) ACJA, 311(1) ACJL Lagos, 408(1) ACJL Kano.

The question whether the woman is pregnant or not shall be determined by the court on such
evidence as may be presented to the court by the woman or on her behalf or by the prosecutor SS
415(2) ACJA, 311(2) ACJL Lagos, 408(2) ACJL Kano.

Where in proceedings under this section the court finds that the woman in question is not pregnant,
the court shall pronounce sentence of death upon her SS 415(3) ACJA, 311(3) ACJL Lagos,
408(3) ACJL Kano.

An appeal shall lie to the CA against such finding and the Court if satisfied that the finding should
be set aside, shall quash the sentence passed on her and substitute such with a sentence of
imprisonment for life S311(4) ACJL Lagos.

YOUNG PERSON
A person who has attained the age of 14 but has not attained 18yrs S 2 CYPL Lagos.

A young person who has not attained the age of 18 at the time of committing a capital offence shall
not be sentenced to death Ss 302(3) ACJL, S405 ACJA.

Young person to be detained at the pleasure of Pres./Gov Ss 302(3) ACJL; Guabadia v The State
(2004). Sentenced to life imprisonment or other term as the court may deem fit S405 ACJA.

He may be discharged during such pleasure by the president/governor on licence S330(1)(2) ACJL
Lagos.

Where there is doubt as to whether the defendant or convict has attained the age of 18, the court
should resolve the doubt in his favour; S416 (2) (h) ACJA, 409(2)(h) ACJL Kano

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In Modupe v The State (1988), the SC held that “…if the evidence on record shows that at the
time the offence was committed, an accused charged with capital offence has not attained the age
of 17 (now 18) years, it will be wrong for any Court not only to sentence him to death but also to
even pronounce or record such sentence.”

DEATH SENTENCE & PREROGATIVE OF MERCY SS 175 & 212 CFRN

Upon imposition of death sentence on a convict, the court shall notify the AGF/AGS/Minister by:

▪ forwarding a CTC of the record of proceedings.

▪ A certificate stating that death sentence has been passed on the person named therein.
▪ A written and signed report containing his observations and recommendations relating to
the trial Ss 307 ACJL Lagos; 312, 407-410 ACJA.

A person sentenced to death may appeal to president/gov for prerogative of mercy through his
legal practitioner or officer in charge of the Prison in which he is confined to the Committee on
Prerogative of Mercy SS 409 ACJA, 308 ACJL Lagos, 402 ACJL Kano.

The AGF/AGS will send the report to the council’s responsible for exercise of prerogative of
mercy to consider the suitability of the convict’s case for mercy. Based on the councils report the
AGF/AGS will recommend as follows:

RECOMMENDATION OF AGF & AGS

1. That the convict be pardoned.
2. Sentence be commuted to life imprisonment
3. Sentence commuted to any specific period
4. Sentence to be carried out.

WHERE TO APPLY FOR MERCY

The Federal Advisory council on prerogative of mercy is the council of state Ss 175(2) & 212(2)
CFRN and at state level same, like committee on prerogative of mercy, Lagos state. Application
for mercy made to SC was refused in Okeke v State (2003).

EXECUTION OF DEATH SENTENCE

Sentence of death shall not be carried out unless confirmed by the President or the Governor.
Appeal against death sentence acts as a stay Bello v A.G Oyo State (1986).

IMPRISONMEMT S416 ACJA, 312 ACJL Lagos, 309 ACJL Kano.

This is a form of custodial sentence. The convict is to be remanded in prison until the expiration
of the term of imprisonment. The court may order that the imprisonment shall be with or without
hard labour.

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Imprisonment shall be with labour unless otherwise ordered S312 ACJL Lagos.

The period spent in prison custody awaiting or undergoing trial shall be considered and computed
in sentencing a convict; S416 (2) (e) ACJA, 409(2)(e) ACJL Kano.

Trial court shall conduct an inquiry into the convict’s antecedents before sentencing; S416 (2) (f)
ACJA, 409(2)(f) ACJL Kano.

An appeal court may not increase the sentence of a lower court beyond the maximum number of
years the lower court has power to impose; S416 (2) (f) ACJA, 409(2)(f) ACJL Kano.

The term of imprisonment prescribed as punishment for the offence is the maximum. Where the
law states that a term of imprisonment is the minimum, the sentence becomes mandatory and fine
cannot be imposed S 316(5) ACJL Lagos.

Sentence may run concurrently or consecutively S314 ACJL; 418 ACJA.

CUNCURRENT AND CONSECUTIVE SENTENCE

A court that pronounces more than one sentence in a trial may direct whether or not the sentence
will run concurrently or consecutively SS 418 ACJA, 314 ACJL Lagos, 410 ACJL Kano.
However, where consecutive order is made, the prison term must not exceed the original
jurisdiction of the court by four years. Although, none of the above provisions contains anything
on concurrent sentence.

If sentence is to run concurrently, convict will serve the highest of all the terms. If the sentence
is to run consecutively, convict will serve aggregate of all terms.

A defendant may not be given consecutive sentences for two or more offences committed in the
same transaction; S416 (2) (i) ACJA, 409(2)(i) ACJL Kano

LIMITATION ON IMPOSITION OF TERMS

Note the power of the HC S272 CFRN and MC to impose punishment in the South and North.
For Lagos it must not exceed 14yrs S314 ACJL and S.29 (5) MCL 2009 Lagos.

WHEN IMPRISONMENT STARTS TO RUN Ss 315 ACJL Lagos; 419 ACJA, 411 ACJL
Kano.
S419 ACJA; “a sentence of imprisonment takes effect from and includes the whole of the day of
the date on which it was pronounced.”

SENTENCE OF FINE SS 318 ACJL Lagos; 420 ACJA; 412 ACJL Kano 74 PC.

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It is a pecuniary punishment. Entails the payment of money as punishment, where no sum is

specified, at the discretion of the court. It may be in addition to imprisonment or independent.

DEFAULT IN PAYMENT OF FINE

Where a convict defaults in the payment of fine as punishment, he will be liable for imprisonment
for a certain term S 421 ACJL Lagos, 428 ACJA, 420 ACJL Kano.

Where sentenced to imprisonment & fine and he defaults in payment of fine, he will be liable for
additional term of imprisonment S 421 ACJL Lagos, 428 ACJA, 420 ACJL Kano.

Court must have regard to the means of the convict Ss 320 ACJL Lagos, 427(1) ACJA. Convict
may appeal on grounds of excessive fine imposed on him Goke v COP (1957).

DESTINATION OF THE PROCEEDS OF FINE

The proceeds of the fine is payable to the victim/informant to offset expenses, payment of any
court fees and remainder goes to general revenue S 427 ACJA, 320 ACJL Lagos, 419 ACJL
Kano.

HADDI LASHING SS68(2) PC, 430 ACJL Kano but not in either ACJA or ACJL Lagos.
S430 ACJL Kano execution of sentence of Haddi lashing provides;
(1) where the offender is sentenced to a Haddi lashing, the sentence shall be executed at such time
as the court may direct and the sentence shall be inflicted with such instrument and such manner
and place as ordered
(2) Nothing herein contained shall be deemed to authorise the infliction of a Haddi lashing upon
any person other then a Muslim and in accordance with the provisions of the Penal Code.

CANING S77 PC, 431 ACJL Kano but not in either ACJA or ACJL Lagos.
ACJL Kano S431 (1); Where a D is sentenced to caning, the sentence shall be executed at such
place and time as the court may direct.
(2) No sentence of caning shall be executed by instalments.
(3) No sentence of caning shall be inflicted on
a. females
b. males sentenced to death; or
c. males whom the court considers to be more than forty-five years of age.
(4) The sentence shall be inflicted with an ordinary horse whip

S432 Stay Execution of Sentence of Caning

(1) Where before the execution of sentence of caning, it appears to the registrar of the court that
the offender is not in a fit state of health to undergo the sentence, he shall notify the court which
passed the sentence and the court may either:
(a) after taking a medical opinion, again order the execution of the sentence; or
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(b) substitute for it any other sentence which it could have passed at the trial

(2) Where during the execution of caning, it appears to the registrar of the court that the offender
is not in a fit state of health to undergo the remainder of the sentence, the caning shall immediately
be stopped and the remainder of the sentence be remitted.

(3) In either case, the court shall be informed of the stay of execution.

S433(1) provides for right of appeal as the convict shall be given 15 days to appeal the sentence
before carrying it out. Subsection (2) states that where he is sentenced to caning alone, upon
fulfilling bail conditions, he shall be released within the 15 days of time to appeal and also time
pending determination of the appeal. Subsection (3) provides that where after the sentencing, D
fulfils conditions satisfying the court that he’ll make himself available for caning, he’ll be released.

NON-CUSTODIAL SENTENCE, See the United Nations Standard Minimum Rules for Non-
Custodial Measures (The Tokyo Rules) 1990.

TYPES OF NON-CUSTODIAL SENTENCE

• Probation Ss.341 ACJL Lagos; 453-458 ACJA
• Restitution of Stolen Property S297 & 341(3) ACJL Lagos
• Forfeiture Order Ss 290 ACJL Lagos; 68(1)(b) PC.
• Payment of Damage for Injury or Compensation Ss.285, 341(2) ACJL Lagos.
• Suspended Sentence S.460 ACJA.
• Community Service Ss.347 ACJL; 460 (2) ACJA.

OTHER FORMS OF SENTENCE

• Confinement at a Rehabilitation & Correctional Centre Ss 348 ACJL; 68(1)(d) PC.
• Deportation Ss 331-339 ACJL; 439-451 ACJA.

Note the conditions for parole to be approved: S 468 ACJA.

RESTITUTION AND COMPENSATION S 321 ACJA

While fines go to the State, restitution or compensation is money paid by the defendant to the
victim or victim’s estate or to a state restitution fund.

Offenders may be required to return or replace stolen or damaged property, to compensate victims
for physical injuries or for medical and psychological treatment costs, or to pay funeral and other
costs where a victim dies.

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The defendant may be ordered to pay restitution either as an alternative to imprisonment or as just
one part of the sentence, in addition to prison, community service, and/or probation.

PROBATION S 453 cf 455 ACJA

Probation is a post-conviction order whereby a convict is discharged or released from confinement
on conditions and under court supervision. If the probationer violates a condition of probation,
the court may revoke the probation and proceed to sentence the probationer to imprisonment.
Usually, the conditions for probation are at the discretion of the court.

WHEN TO MAKE PROBATION ORDER

Under S 454 ACJA, the court may make a probation order only where the offence against the
defendant has been proved but it considers that it is expedient to release the defendant on probation
having regard to the following considerations:

THINGS TO CONSIDER
A. The character, antecedents, age, health or mental condition of the defendant.
B. The trivial nature of the offence; and
C. The extenuating circumstances under which the offence was committed.

PROBATION DURATION
By section 454 (2)(b) ACJA the probation period shall not exceed 3 years.

The conditions for probation are stipulated in S55 ACJA to include:

• C be under supervision of a probation officer, a person of same sex
• Do what society consider good behaviour like avoiding intoxication or other act that may
make him commit the offence again
• The court shall furnish the C in simple written terms what the probation conditions are

PAROLE S468 ACJA

Parole is a conditional release from incarceration (prison sentence) during which a prisoner
promises to abide by certain conditions and submits to the supervision of a parole officer (a
supervisor).

Any violation of those conditions would result in the return of the person to prison. A parole can
only be ordered on the basis of a report by the Comptroller-General of Prisons to the court
recommending the prisoner on the grounds that the prisoner is of good behaviour;

The prisoner must have served at least one-third of his prison term if he is sentenced to at least
15years or life imprisonment. The court may release the prisoner with or without condition.

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SUSPENDED SENTENCE S460 (1) ACJA, 442(1) ACJL Kano

Suspended sentence was previously assumed to be alien to our criminal justice system State v
Audu (1972); Ekpo v State (1982); See S315 ACJL Lagos.

A suspended sentence involves the judge imposing a prison sentence but suspending it on certain
conditions or no conditions at all. This means that the offender is not sent to prison if he/she does
not break the conditions.

CANCELLATION OF SUSPENDED SENTENCE

If the offender breaks a condition during the period for which the sentence is suspended, he/she
will have to serve the term of imprisonment originally imposed.

RESTRICTION ON IMPOSITION OF SUSPENDED SENTENCE AND COMMUNITY

SERVICE
S460 (3) ACJA prohibits order for suspended sentence for an offence involving;
➢ the use of arms or offensive weapon,
➢ sexual offence or
➢ an offence which the punishment exceeds 3 years imprisonment.

COMMUNITY SERVICE ORDER S460(2) ACJA.

This is a non-custodial sentence. The convict is sentenced to perform certain community service
subject to supervision. Where he fails, he will then be given a custodial sentence.

COMMUNITY SERVICE DURATION

The service is to be performed for a period of not more than 6 months S462 (1) ACJA. The convict
not to work for more than 5 hours a day S462 (1) ACJA.

COMMUNITY SERVICE AND SENTENCE OF IMPRISONMENT

A convict sentenced to community service shall not also be sentenced to a term of imprisonment.
It is an alternative to a term of imprisonment. The convict may however be sentenced to term of
imprisonment upon default in performing the community service S 461 (7) ACJA.

DEPORTATION Ss 439 ACJA; 331 ACJL Lagos, Shugaba Darman v Miniter of Internal
Affairs.
Deportation is a legal expulsion or removal from Nigeria of a person not being a citizen of Nigeria
S439 ACJA. It is one of the alternatives to imprisonment provided for under the ACJA.

Under S440 ACJA, where a defendant is convicted of an offence punishable by imprisonment

without option of fine, the court may, in addition to or instead of any other punishment, make
recommendation to the Minister of Interior that the convict be deported, where it is in the interest
of peace, order and good governance. It applies only to foreigners.
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RESTORATIVE JUSTICE AND RETRIBUTORY JUSTICE

Restorative justice is reformatory and rehabilitatory in nature. It emphasises the remedy available
to the victim and community as it is restitutory. It encourages the reintegration of the offender to
the community. It is also reconciliatory in nature.

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14.0 APPEALS 1
MEANING
It is an invitation to a higher court to find whether on proper consideration of the facts placed
before a lower court and the applicable law, the lower court arrived at a correct decision Aredoyin
vs. Arowolo (1989) 4 NWLR. (pt. 114) p.172. Eweka vs. S.C.O.A. (2000) 3 s.c. p. 21 at 31.
Appeal usually stems from the dissatisfaction of a party to the decision of a lower court against
him.

RIGHT OF APPEAL: S 243 CFRN

Right of appeal is statutory. There is no general right of appeal and a person can only appeal if
there is a statute giving him a right to appeal. A right of appeal is created by statute and where
there is no provision for appeal in the statute creating rights of appeals, no such right exist Nunku
v. The Police; R. v. Grantham (1969), Boardman v. The Sokoto N. A. (1965); Ugwu v. The
Attorney-General East Central State (1975).

In Nigeria, the right of appeal, the jurisdiction of the court to hear appeal, the procedure of appeal
and the procedure of hearing the appeal is governed by the CFRN and other statutes including
subsidiary legislations and the rules of courts Adigun & ors. v A.G. Oyo State (1987) 2 N.W.L.R.
(pt. 56) p. 197.

WHO MAY APPEAL

The following are those entitled to appeal:
• A person convicted
• The prosecutor

Can a person who pleaded guilty appeal against conviction and or sentence? Essien v. The
King 13 W.A.C.A. 6; Stephenson v. The Police (1966) 2 ANLR 261. Upon a plea of guilty, the
prosecution should go ahead and present all the facts constituting the offence and the accused must
also admit them. A conviction on a plea of guilty without compliance with this procedure is wrong.
Consequently, an accused can appeal on this.

A person who is neither the prosecutor nor the accused cannot appeal either as of right, or with
leave Akinbiyi v. Adelabu (1965) 1 F. S.C.45. See also S 485 (2) & (3) ACJA as it relates to
appeals from Magistrate in FCT to FCT High Court Abuja.

Note: Estate/heirs & personal representatives of a deceased appellant can continue with appeal in
cases punishable with fine R. vs. Roni (1955) 29 p. 57.; Re: Abdullahi (2018) 14 N.W.L.R. (Part
1639) at 290 – 292.

TYPES OF APPEAL

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1. Appeal as of right Ss 241(1), 233(2) CFRN

2. Appeal with leave Ss 241(1), 233(2) CFRN
3. Interlocutory appeal Nwosu v State (1990) 7 N.W.L.R. (pt. 162) p. 344
4. Appeal against final judgement
5. Appeal from the Magistrate court to the High court

INTERLOCUTORY PROCEEDINGS SIMILAR TO APPEAL

(1) Case Stated: - SS 295 CFRN, 76 MCL 2009 Lagos.

Is a reference of a question of law, which depends on the interpretation or application of the

constitution, to a higher court for an opinion. A case may be stated to a higher court for its opinion
before or after a judgment at the instance of the A.G., parties or by the court suo moto FRN v
Ifegwu, R v Eze. A case stated is not an appeal.

A case may be stated to a higher court in the following circumstances:

1. After judgment, the attorney general may within six months of a judgment direct the
magistrate to state a case thereon for the decision of the High court S76 MCL Lagos, 2009
2. On the application of either party to a proceeding S295 CFRN
3. When the court or a magistrate so directs suo motu S78 MCL Lagos, 2009.

Conditions Precedent for Case Stated by the SC in FRN v Ifegwu:

1. The question must be as to the interpretation or application of the constitution.
2. The question must arise in the proceedings in connection with an issue before the court
making the reference.
3. The matter for reference must involve a substantial question of law.
4. The court making the reference of the higher court is not required to and must not give an
opinion of law on the questions.

Contents of a case stated S77 MCL Lagos, 2009.

(a) charge, summons, information or complaints;
(b) facts found by the Magistrate to be admitted or proved;
(c) submission of law made by or on behalf of the complainant during the trial or inquiry;
(d) submission of law made by or on behalf of the accused during the trial or inquiry;
(e) the finding of, and in case of conviction, the sentence imposed by the Magistrate; and
(f) question of law which the Attorney ‐ General requires to be submitted for the opinion of
the High Court.

Duty of the Court When a Case Stated Application is made

When the application for case stated is made by either of the parties, the trial court is under a duty
to state a case for the superior court. It is immaterial that the trial court is of the opinion that there

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is no substantial question of law or that it had earlier pronounced its decision on the question of
law - S 295 (1) (2) & (3) CFRN; African Newspapers of Nigeria Ltd v. FRN.

Note also that an appeal is distinguishable from applications for prerogative orders such as an order
of Habeas corpus, Certiorari and an order of Mandamus.

(2) PREROGATIVE WRITS

Are issued by the court in the course of proceedings when there is direct interference with rights
or property of accused. They are not issued as of right. a person seeking for the issuance must
show violation of personal liberty or property rights by proceedings or order of court. It is applied
for before or after judgment State v Falade.

TYPES OF PREROGATIVE WRITS

(1) Habeas corpus- it is applied for to order release from custody or procure attendance to
court of person unlawfully detained Gwaram v Supt. of Prisons.
(2) Prohibition- used by the High court in supervisory role over Magistrates court The State
v. Chief Magistrate Aboh – Mbaise Exparte Onukwe.
(3) Mandamus- opposite of prohibition. it is issued to compel the performance of a duty
Fawehinmi v. Akilu. it was held that the order of mandamus could be issued to compel
the AG Lagos to issue a fiat to a private prosecutor to prosecute the accused persons.
(4) Certiorari – by this, high court may quash proceedings or order of lower court where it
acted without jurisdiction or there is irregularity in its proceedings State v Falade, the HC
issued a writ of certiorari to quash the conviction of the accused persons because the trial
magistrate convicted them without hearing their defence.

APPEAL FROM THE MC THE HC SS 68, 68 & 69 MCL Lagos, 485 ACJA, 461 ACJL
Kano.
S 272(2) CFRN seizes the HC with the requisite jurisdiction.
May be commenced:
• by filing written or oral Notice of Appeal at the registry of the MC within 30 days of
judgment if the sentence is imprisonment.
• within 15 days of judgment if the sentence is caning.
• 14 days from the date of the delivery of the interlocutory decision.
• where the appeal is to be lodged out of the prescribe 30 days period, the appellant is to seek
leave of court to appeal out of time. The application is made by Motion on Notice supported
by an affidavit exhibiting the proposed notice of appeal and grounds of appeal. The
affidavit must also state the reasons for failure to appeal within time.
Note:
• Registry of the court must reduce oral notice of appeal into writing.
• Notice of appeal can also be given to the officer in charge of prison.
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• A written notice can be signed by the appellant or his counsel.

GROUNDS OF THE APPEAL

According to S67 MCL Lagos, 2009, prosecution may appeal as of right in any of the following
circumstances:

(a) Where an accused person has been acquitted or an order of dismissal made by a magistrate
from the acquittal or dismissal on the ground that it is erroneous in law or that the proceeding
or any part thereof were in excess of the jurisdiction of the magistrate.

(b) Where a person has been convicted by a magistrate of an offence in respect of which the
magistrate is required by any law to impose a minimum sentence of or make any order prescribed
by that or any other law on the ground that the Magistrate has failed to impose such sentence
or make such order.

S68 MCL Lagos, 2009 provides that “any person convicted of a criminal offence by a Magistrate
having Convicted Person. jurisdiction to try the offence may appeal to the High Court before the
expiration of thirty (30) days after the judgement was delivered or Order of the Magistrate was
given as stated in Section 69 of this Law.”

A convicted person may appeal on any of the following grounds as provided by O2 R9(1) OF HC
(Appeal Rules), S. 485(9) ACJA:
(a) that the lower court has no jurisdiction in the case;
(b) that the lower court has exceeded its jurisdiction in the case;
(c) that the decision has been obtained by fraud;
(d) that the case has already been heard or tried and decided by or forms the subject
of a hearing or trial pending before a competent court;
(e) that admissible evidence has been rejected, or inadmissible evidence has been
admitted by the lower court and that in the latter case there is no sufficient
admissible evidence to sustain the decision after rejecting such inadmissible
evidence;
(f) that the decision is unreasonable or cannot be supported having regard to the
evidence;
(g) that the decision is erroneous in point of law;
(h) that some other specific illegality, not mentioned and substantially affecting the
merits of the case, has been committed in the course of the proceedings in the
case; or
(i) that the sentence passed on conviction is excessive or in-adequate, unless the
sentence is one fixed by law.

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Order 10 Rule 9 of the High court of Lagos Appeal Rules provides additional grounds as
follows:
(a) Magistrate was personally interested in case.
(b) Magistrate acted corruptly or maliciously in the case.

Appellant must state the nature of error, irregularity or illegality committed R v. Mensah.

Additional grounds may subsequently be filed, with leave. It is advisable to state in the original
notice that additional grounds of appeal will be filed Esoh v. IGP; Araba v. COP.

Appellant may also amend defects in grounds, with leave, by way of Motion on notice, only if
time for filing original has lapsed.

Issue of weight of evidence not ground in criminal appeals Enitan & Ors. v. State.

PAYMENT OF FEES SS 486 ACJA, 463 ACJL Kano.

If not a public officer, must pay fees for filing the appeal & such amount as is deemed sufficient
by court to produce sufficient number of certified typed written copies of the record of proceedings
to supply each respondent & court.

State or public officers in official capacity don’t pay fees SS 488 ACJA, 465 ACJL Kano.

COMPUTATION OF TIME TO APPEAL

Computation of time commences from the date when appellant had notice of the judgment of the
court, not necessarily date judgment was actually delivered Ohuka v. State.

STAY OF PROCEEDINGS OR EXECUTION

Appeal does not operate as a stay, except in death sentence Bello v. A-G Oyo state.

PRESENTATION OF APPEAL AT HIGH COURT

Counsel or appellant shall orally argue appeal at the hearing of appeals from magistrate courts. For
convenience, counsel may merge grounds for presentation and may abandon irrelevant or
unhelpful grounds. A respondent shall reply. After the respondent’s reply, the Appellant may
further reply on points made by respondent.

NOTE: At present in practice, appeals at the HC are argued through the filing of a written address.
On the date fixed for hearing, parties merely adopt their respective written addresses and may be
allowed to adumbrate on certain salient issues.

After hearing appeal against conviction & sentence, court may:

1. Affirm conviction & sentence.
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2. Quash conviction & sentence, Acquit or Order re-trial.

3. Alter or maintain the finding, Alter or maintain sentence
4. With or without altering finding, reducing or increasing sentence, alter the nature of the
sentence.
5. Annul conviction & substitute it special finding of insanity at the time of the act or
omission.

Note: An appeal court can’t sentence above jurisdiction of trial court Nworie v. Police.

HC may dismiss appeal summarily after perusing all processes & hearing appellant, it need not
give detailed judgment S36 High Court Law of Lagos State, 2004.

Additional evidence may be taken in the interest of justice Abiola v. Police. But additional
evidence will not be allowed if that will lead to rehearing a case R v Oton.

Even where ground succeeds, court may dismiss the appeal if it feels that no substantial
miscarriage of justice has occurred R v. Ijeoma; Edun v Police; R v. Accida.

COMMENCEMENT OF APPEAL AT THE COURT OF APPEAL SS 241 & 242 CFRN

By giving Notice of Appeal to the Registrar of the lower court within 90 days after the final
judgment S 24(2) Court of appeal Act.

Appeal to be filed within 14 days if interlocutory (civil cause or matter) S 24(2) CAA.

A person appealing for leave for extension of time may be granted extra 15 days S24(3) CAA.

Notice of appeal shall be signed by the appellant or by his legal representative O17 r5(1) CA
Rules, 2021, a person that can write, his mark will suffice O17 r5(4) CAR, 2021 appeal by a
corporation can be signed by the secretary, manager or counsel of the corporation O17 r5(6) CAR,
2021.

None compliance may not be fatal to an appeal. If the intending appellant has shown good and
substantial cause and exhibited a genuine desire to appeal, the court may, in the interest of justice
entertain the appeal O.17 R5(2) CAR, 2021, Ikechukwu v F.R.N. (2015) 3 SCM. p. 61.; Idegwu
v The State (2015) N.W.L.R. (Part 1455) P. 286 RATIO 9.

TRANSMISSION OF RECORDS
The Registerer of the lower court shall forward the record of appeal to the registry of the Court of
appeal within sixty days from the date of filing the Notice of Appeal. The registered must do so
and unlike in civil appeal, the appellant has no duty to serve record O.17 R8(2) CAR, 2021.

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Record of appeal (hard and electronic) to be forwarded to the parties O17 R7(2) CAR, 2021.

FILING OF BRIEF OF ARGUMENT

Appellant must file brief of argument within 45 days of the receipt of the record of appeal O.19
R.2, CAR, 2021.

Respondent must file respondent brief within 30 days of the receipt of record O.19 R.4 CAR,
2021

If there is need for reply, appellant must file reply brief within 14 days after service of the
respondent’s brief O.19 R.5 CAR, 2021.

All parties whose interests are identical or joint, shall file joint briefs and separate briefs may be
filed only by those parties whose interests are separate or are in conflict O. 19 R.6 CAR., 20121.

Filing fees shall be paid except in appeal against death sentence or where the appellant receives
legal aid not provided for in CAR, 2021

FAST TRACT CASES

Order 1 CA (Fast Track) Practice Directions, 2021 provides that; fast tract appeal means any
of the following;

• Debt Appeals
• Tax matters
• Corruption
• Human Trafficking
• Kidnapping
• Money laundering
• Rape
• Terrorism
• Appeals by or against such national human rights, intelligence, law enforcement,
prosecutorial or security agencies such as the EFCC, ICPC, NHRC, the SSS etc.

Order 8 Rules 3-7 CA (Fast Track) Practice Directions, 2021 are to the effect that:
• In these cases, appellant must file brief within 14 days of the receipt of record.
• Respondent must file respondent brief within 10 days of the receipt of appellant brief.
• If there is need for reply, the appellant must file his reply within 5 days of the receipt of
respondents brief of argument.

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EFFECT OF FAILURE TO FILE BRIEF WITHIN TIME O. 19 R10 CAR., 20121

If the appellant fails to file brief within time or within the extended time for filing the court may
suo motu or on the application of the respondent, dismiss the appeal for want of diligent
prosecution but if the respondent fails, the court will having confirmed that he’s duly served
proceed to hear the matter without him.

If the respondent fails to file respondent brief within time or within an extended time for filing, he
will not be allowed to make oral argument at the hearing of the appeal. Note: his failure here does
not necessarily entitle appellant to judgment.

If appellant fails to file reply to respondent brief within time, he will be deemed to have conceded
to any new point raised by the respondent’s brief.

CONSTITUTION/ HEARING OF APPEAL AT COURT OF APPEAL

Court must be properly constituted in terms of numbers and qualification, otherwise decisions will
be void Ogbunyinya v. Okudo.

In an appeal from MC to the HC, an Appeal is heard by at least 1 judge. No maximum is stipulated
by law. S.273 CFRN. However, The High Courts in the North, usually sits with 2 judges. The
Lagos HC sits with 3 judges to hear an appeal from a MC.

HC & FHC to CA, not less than 3 S.247 CFRN.

CA to SC, not less than 5, but appeal is entertained by 7 if:

• Exercising original jurisdiction in dispute between fed. & and a state or between states.
• Required to determine the interpretation or application of the Constitution.
• Required to determine whether provision of the Fundamental human right has been, is
being or is likely to be contravened in relation to any person S234 CFRN.

O19 r9 CAR., 2021 on oral argument is to the effect that;

Hearing of appeal by the Court of Appeal is done after briefs have been exchanged between the
parties and hearing notice served on the parties by the registrar of the court of appeal.

On the date of hearing, parties adopt their respective briefs only but each is allowed 15 minutes to
adumbrate on the points appearing on his brief.

Where a party does not appear at the hearing after filing his brief of argument, the court is entitled
to treat the appeal as duly argued.

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JUDGEMENT O23 CAR, 2021

Judgment of the court shall be delivered in open court either on the hearing of the appeal or at any
subsequent time of which notice shall be given to the parties by the registrar.

When judgment is reserved and notice given, counsel or his junior must appear, otherwise he may
be guilty of contempt O23 R 1 & 2 CAR, 2021.

APPEAL FROM C.A. TO S.C S27(2)(b) SCA, O9 SCR

Is done by filing notice of appeal within 30 days of judgment of the court of appeal S27(2)(b)
SCA, O.9 R.3(1) SCR.

But extension of time may be granted on application upon good reason being shown for delay SS
31(4) & 27(4) SCA.

Record of appeal shall be compiled by the registrar of the CA except where the appeal is:
(a) An interlocutory appeal
(b) Appeal against summary order or judgment of the C.A.
(c) Where the liberty of a person is concerned. In these cases, record can be compiled
by the appellant.

Fees for the compilation of the record shall be assessed by the registrar of the CA and shall be paid
by the appellant within 14 days of being notified of the assessment by the registrar of the court of
appeal O.7 R.3 SCR

Notice of appeal shall be signed by the appellant himself O9 R.3 SCR

Record shall be compiled by the registrar of the C.A. within six months of filing notice of appeal
O7 R4(1) SCR

In line with O9 R.3 SCR, O6 R.5(1) SCR;

• Brief of argument shall be filed by the appellant within 10 weeks of the receipt of record
of appeal.
• Respondent’s brief shall be filed within 8 weeks of the receipt of appellant’s brief
• A reply brief shall be filed within 4 weeks of the receipt of respondent’s brief where
necessary.

FAST TRACK CASES:

O6 SC Practice Direction, 2014 is to the effect that;
• In the above cases, appellant’s brief shall be filed within 10 days of the receipt of record
of appeal.
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• Respondent’s brief shall be filed within 7 days of the receipt of appellant’s brief
• A reply brief shall be filed within 3 days of the receipt of respondent’s brief.

HEARING OF APPEAL BY S.C.

It is done by adopting briefs of arguments. Each party is allowed one hour to adumbrate on the
points appearing on his brief. A party wanting an extension of time beyond one hour to make oral
submission shall apply one month to the hearing showing good reasons for the application O6 R8
SCR.

Appellant who is on bail must be present on every day fixed for the hearing of the appeal. Where
he is absent the court may decline to hear the appeal or dismiss the same and order for his arrest
O 9 R4(5) SCR.

ORDERS WHICH MAY BE MADE ON APPEAL

• Court may uphold appeal, set aside judgment of the lower court and discharge and acquit
the appellant.
• Court may uphold the appeal, set aside the conviction and sentence but, order for re-trial.
• In an appeal against sentence, court may affirm the conviction, quash the sentence and
substitute it with a higher or lower sentence as the fact of a particular case may permits.
• Court may dismiss the appeal if lacking in merit.

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15.0 APPEALS 2
APPLICATION FOR EXTENSION OF TIME WITHIN WHICH TO APPEAL

• Where parties could not appeal within time, leave of court must be sought to appeal out of
time.
• The application which is by motion on notice is to be filed in the court below and must be
supported by affidavit and the proposed grounds of appeal O17 r4(1) CAR.
• The application must contain reasons why appeal could not be filed within time.

BAIL PENDING APPEAL SEE ABOVE UNDER BAIL FOR MORE INFO
• An accused who is convicted and sentenced and who intends to appeal may need to apply
for bail pending appeal SS 28(1) CAA, 31(1) SCA, Or 9 R 4(6) SCR
• The appellant must have a valid appeal to be entitled to bail pending appeal.
• Bail pending appeal is not a right. An accused who is convicted and sentenced and who
intends to appeal may need to apply for bail pending appeal.
• Appellant had already been tried in the lower court and found guilty and convicted before
this present appeal.
• Thus, the appellant can no longer be presumed innocent.
• The appellant must establish special circumstances to be entitled to bail.

WHAT CONSTITUTES SPECIAL CIRCUMSTANCES

• Where the sentence is manifestly contestable;
• Where there is need for constant consultation between the convict and counsel e.g.,
complex cases;
• Health ground Fawehinmi v. State (1990) 1 NWLR (Pt. 127) 486;
• Where convict will serve his sentence substantially before appeal is heard and concluded
Obi v. State (1992) 8 NWLR (Pt. 257) 76 at 83
• The severity of the offence – George v. FRN (2011) All FWLR (Pt. 554) 125 at 136 Note:
Persons convicted of murder and sentenced to death are usually not released on bail.
• Where there is a mis-trial on the face of the records;
• Where the grounds of appeal filed were so substantial that there is a good prospect of
success of the appeal - Chukwunyere v. C.O.P (1975) 5 ECSLR 44.
• Application for bail pending appeal should first be filed in the trial court and if refused, it
should be filed in the court where appeal is pending. Such application is by motion and not
by summons Obekpa v. C.O.P. (1981), Offiong v. C.O.P. (1966) NNLR. 94.
• Where appeal has been entered, the bail application may be filed directly in the court where
appeal is pending.

HEARING OF APPEALS AT THE COURT OF APPEAL

By brief writing introduced in 1984.

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Appellant’s brief – to be filed within 45 days of the appellant receiving records of proceedings.
O19 R2 CAR 2021.

Appellant’s brief is a succinct statement of his argument in appeal.

Respondent’s Brief – to be filed within 30 days from the date the respondent is served with the
appellant’s brief O19 R4 (1) CAR 2021. It is a succinct statement of the respondent’s response to
the arguments raised in the appellant’s brief served on him. Must be duly endorsed with an address
or addresses for service.

Reply Brief (where necessary) to be filed within 14 days from the date the appellant is served
with the respondent’s brief O19 R5 CAR 2021.Reply brief is only to deal with all new points from
the respondent’s brief.

Each party is expected to file 10 copies of brief in hard and electronic forms in court O19 r8 CAR
2021, no brief shall exceed 35 pages except otherwise directed by the court O19 r6.

APPLICABILITY OF THE PRACTICE DIRECTION TO CRIMINAL CASES

See above for the cases contained therein

Interlocutory appeals challenging the ruling of the court below on an interlocutory application.
Practice direction is made by the President of the Court of Appeal or the Chief Justice of Nigeria
(as the case may be) to fast tract hearing of appeals, eliminate unnecessary delays and reduce time
and expenses in the conduct of appeals in some specific cases/offences. Cases listed in the practice
direction are speedily heard and given priority attention.

BRIEF OF ARGUMENTS IN CASES COVERED BY THE PRACTICE DIRECTION O8

CA (Fast Track) Practice Directions, 2021
• Appellant’s brief must be filed within 14 days after receipt of the record of proceeding;
• Respondent’s brief must be filed within 10 days after service of Appellant’s Brief;
• Reply brief must be filed within 5 days after service of the Respondents brief;
• No oral elaboration of brief is allowed except by order of court;
• All applications must be resolved within 21 days of filing the last document.
• In hearing the appeals, priority attention shall be given to all the appeals listed as fast track
• In preparing the cause list, those cases shall come first.
• The judge may designate certain days in hearing the appeals and shall not entertain
frivolous applications for adjournment.

HEARING OF APPEALS
On the date the appeal is set down for hearing, each party will be given 15 minutes to adopt and
or argue his brief O19 r9(3) CAR 2021.

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ABSENCE OF PARTIES AT THE HEARING OF APPEAL

See above

CROSS APPEAL
This is an independent appeal filed by the respondent against the judgment of the lower court.
Such appeal is heard at the same time as the appellant’s appeal and is determined on its own merit.

RESPONDENT’S NOTICE
The respondent contends that the decision of the court below be varied either in part or in whole.
The respondent may also contend that the decision be affirmed on grounds other than those relied
on in the court below.

CONTENTS OF BRIEF OF ARGUMENT

• Name of court
• Appeal no
• Parties to appeal
• Title of brief
• Table of contents
• Introduction/preliminary statement
• Issues for determination
• Statement of facts
• Arguments on the issues
• Conclusion/summary, list of authorities
• Name, address of counsel settling brief.
Brief of argument must be signed and dated by counsel filing it.

BRIEF OF ARGUMENT IN SUPREME COURT O6 R.5(1) SCR

• First introduced in 1977.
• Appellant to file brief within 10 weeks of receiving records.
• Respondent to file brief within 8 weeks of receiving Appellant’s brief.
• Reply brief to be filed within 4 weeks
• Parties are expected to file 10 copies of brief.
• One hour is given to each party to argue and or adopt his brief O6 R8(5-7) SCR.
• Where a party needs more than one hour to argue his brief, he is required to apply to
court for additional time at least one month to the hearing of the appeal.

ORDERS COURT MAY MAKE AFTER HEARING APPEALS

i.) Allow the Appeal: The decision of the lower court is reversed; this is done where the
appeal succeeds. The conviction of accused/defendant will be quashed and he will be
discharged and acquitted.
ii.) Dismiss the Appeal: This is done where the decision of the lower court is affirmed.
The conviction of the accused will be affirmed and appeal dismissed.

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iii.) Reduce or Increase Sentence. This is done where there is appeal on sentence.
iv.) Alter Findings but Maintain the Sentence.
v.) Uphold Plea of Insanity and Annul Conviction of D.
vi.) May Order Re-Trial

ABANDONMENT OF APPEAL
An appellant may abandon his appeal either expressly or impliedly. Express abandonment involves
filing notice of abandonment to the registrar, while implied abandonment arises where the
appellant wishfully refused to take further step after filing his notice of appeal.

PROCEDURE FOR ABANDONMENT OF APPEAL

• MC to HC: Filing of notice of abandonment by appellant/counsel at least 2 days before
hearing to the Registrar of the court below.
• HC to CA: Filling of Criminal Form 11 or 11A headed “Notice of Abandonment of
Appeal” and filing same to the Registrar of the court below O17 r17 CAR 2021.
• Supreme Court: letter from appellant informing Registrar of intention to abandon.
• An appellant may impliedly abandon his appeal if he fails to file the necessary papers to
prosecute his appeal after filing his Notice of Appeal.

ABATEMENT OF APPEAL
Abatement of appeal arises where the appellant dies before his appeal is determined. Criminal
appeal may survive the dead appellant where the appeal is against fine as the judgment of court
may be executed against the estate of the deceased appellant R v. Rowe, Abdullahi v. NA.

ADDITIONAL GROUNDS OF APPEAL

Additional grounds of appeal may be filed upon the receipt of the record of proceedings or as the
need arises. However, leave of court is required to file the additional grounds where the time to
file the notice of appeal has expired.

Appeal is argued based on the grounds of appeal filed before the court. Where issues are raised in
your brief, you must show the grounds to which such issues relate.

ADDITIONAL EVIDENCE ON APPEAL ABIOLA V. C.O.P

• This will only be required where a particular piece of evidence which ought to form part
of the evidence to be considered before judgment is delivered at the trial court is not
available before the court.
• An order or leave is granted by the appellate court to receive such evidence or the case is
sent to the lower court to receive such evidence.
• Where the evidence sought to be adduced was not available before the trial.
• The evidence is relevant to the issue before the court.
• Where taking fresh evidence will not amount to rehearing of the matter.

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CONSTITUTION OF THE COURT OF APPEAL

• Three justices of that court S 247(1) CFRN
• In special cases (not criminal appeals) the President of the Court of Appeal may empanel
five justices of the court to sit over a matter.

APPELLATE JURISDICTION
The Court of Appeal may hear and determine criminal appeals from the following courts:

• Federal High Court

• National Industrial Court
• High Court of the Federal Capital Territory
• High Court of a State
• Court Martial
• Code of Conduct Tribunal
• Any other tribunal established by Nat. Ass.

CONSTITUTION OF SUPREME COURT

5 Justices of the court sit to hear appeal.

Full court is 7 Justices for interpretation or application of the Constitution or to determine

questions as to whether any provisions of Chapter IV of the Constitution has been, is being or is
likely to be contravened in relation to any person S234 CFRN.

Opinions of Absent Justices of the Court: "Any justice of the Supreme Court (who heard any
cause or matter) can after a decision has been arrived at by all the justices, pronounce the opinion
of another justice, who for one reason or another, is unable to reduce his opinion into writing or
be present when the judgment in the case is being delivered by each of the other justices". Per
Fatayi Williams C J.N. in AG of lmo State v AG of Rivers State (1983) 8 S.C. 10.

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SAMPLE DRAFT

IN THE COURT OF APPEAL

IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
Appeal No .....
Charge No ...
BETWEEN:
Buka Suka ...................................... Appellant
AND
The State of Lagos ..................................... Respondent

Notice of Appeal

To the Registrar of the High Court, Lagos:

I, Buka Suka having been convicted of the offence of rape by the High Court, Lagos presided by
His Lordship C. Smith, J on 15 August, 2021 and sentenced to 7 years imprisonment with hard
labour and now being a prisoner at Kirikiri Corrective Centre, Lagos, do hereby give notice against
my conviction to the court on the following grounds:

Grounds of appeal:

Ground 1
The learned trial judge erred in law when he ruled on a no-case submission that the prosecution
had made a prima facie case that warrants the defendant to give his defence.

Particulars of Error:
The prosecution did not adduce any evidence to show that the defendant raped P.W 1 (Miss Tina
Regina).

Ground 2
That the trial judge misdirected itself when it held thus:

Particulars of Misdirection:
………

Ground 3
The judgment is unreasonable and cannot be supported having regard to the evidence.

..........................
Signature/mark of appellant or his counsel.
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Dated this....... day of August, 2022

Particulars of trial and conviction:

Date of judgment: 15 August, 2021

Court: High Court 5 Lagos

Judge: Hon. Justice C. Smith

Sentence: 7 years imprisonment with hard labour

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