Week 3 &4 Sources of Criminal Procedure Laws

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WEEK 3 &4


Sources of Criminal Procedure Laws


      1. Primary sources/principal Laws are:

  1. Criminal Procedure Laws (applicable to Southern States other than Lagos)

  2. Criminal Procedure Code Laws (applicable in the Northern States)

  3. Administration of Criminal Justice (Repeal and Re-enactment) Law of Lagos State 2011

  4. Administration of Criminal Justice Act 2015 (Repealed the Criminal Procedure Act and the Criminal Procedure Code but currently only applicable to the Federal High Court, the National Industrial Court and Courts in Abuja because the States must first adopt it before it will apply nationwide).




      1. Secondary sources are:

      1. Evidence Act 2011

      2. The 1999 Constitution as Amended

      3. The Police Act

      4. The Armed Forces Act

      5. Coroners’ Laws of the States

      6. Children and Young Persons Law

      7. Magistrate Court Laws


Lacunas in the CPL, CPCLL the ACJL and the ACJA

  • Under the CPLs, the Courts are to apply similar rules as the English High Court does: s. 363 CPL

  • Under the CPCLL, the application of the English High Court Procedure is prohibited. Under s. 35 of the High Court Law of Northern Nigeria 1963: High CTs in the North can look to any other law made for that purpose or pass another law to take care of it; and if no such law exists, then they must do what will amount to substantial justice.
  • Under ACJL, the Court may in its discretion apply rules of English High Courts. Under s. 266 of the ACJL: where a matter arises in respect of which no adequate provisions are made in the rules, the Ct shall adopt such procedure as will in its view do substantial justice btw the parties.


  • The ACJA 2015 is silent on this issue so it is assumed that there will not be recourse to the English High Courts going forward.


Criminal Jurisdiction of Courts

Jurisdiction is statutory, as it must be contained in a Law or Act. It is divided into two types:




        1. Courts of General Criminal Jurisdiction which are:

  1. Area Courts

  2. Customary Courts

  3. Magistrate Courts

  4. High Courts of the States and the FCT Abuja




        1. Courts of Special Criminal Jurisdiction are:

  1. Federal High Court

  2. National Industrial Court

  3. Court Martials

  4. Juvenile Courts

  5. Coroner’s Courts



COURTS OF CRIMINAL JURISDICTION

1) Courts of Special Criminal Jurisdiction

These courts are set up to try particular types of offences or particular classes of offenders.


2) Courts of General Criminal Jurisdiction

Courts of General Criminal Jurisdiction, on the other hand, are courts that have jurisdiction over different classes of offenders and in respect of different types of offences. Courts of General Criminal Jurisdiction are further subdivided into two:



  1. Courts of Original Criminal jurisdiction, and

  2. Courts of Appellate Criminal Jurisdiction.




  1. Courts of Original Criminal Jurisdiction

These are courts you can commence criminal proceedings at first instance, e.g. Magistrate Courts and High Courts. Below are the Courts of original criminal jurisdiction.

SOUTHERN NIGERIA


  1. CUSTOMARY COURTS

Customary courts are established in all the States of Southern Nigeria in accordance with the Customary Courts Laws of the various States. In Lagos State, the applicable law is the Customary Courts Law, 2004.
Customary Courts have original criminal jurisdiction in respect of the following offences:

  1. Cases of violation of the Rules and Bye-laws of Local Governments.

  2. Laws that expressly confers jurisdiction on Customary Courts.

  3. Any case of contempt in the face of a court.

In Lagos State, upon conviction, a Customary Court Grade (A) can impose a maximum fine of N200 and one year imprisonment. The Customary Court Grade B can impose a maximum fine of N100 or six months imprisonment. The authority of the Customary Court to try criminal matters is drawn from Section 36(12) of the 1999 Constitution which provides as follows:



“… A written law refers to an Act of the National Assembly or a law of a State, any subsidiary legislation or instrument under the provisions of a law.”


  1. MAGISTRATE COURTS

The various Magistrate Courts Laws of the States in Southern Nigeria establish different grades of Magistrate Courts.
JURISDICTION TO TRY OFFENCES

In Lagos, there are no longer grades of Magistrate courts.


The jurisdiction of a Magistrate Court in the South to try an offence depends on whether the offence is an indictable offence or a non-indictable offence. That is the provision of Section 18 of the Magistrate Court Law (MCL)

Section 2 of the MCL defines indictable and non-indictable offences. It states that an indictable offence is any offence which may be punished by:


  1. A term of imprisonment exceeding two years or

  2. A fine exceeding N500.

Any fine that does not fall into this category is a non-indictable office.
All the seven grades of Magistrate Courts can try any non-indictable offence. For indictable offences, Magistrate Grade II to Chief Magistrate Grade I can try indictable offences. Provided that no grade of Magistrate can try capital offence, that is, offence punishable by death. For offences that are indictable, consent of accused and prosecution is required to try person in Magistrate court.

The sentences contained in Section 18 of the MCL are the maximum that the Magistrate Courts in Lagos State can impose. Therefore, despite the provision of Section 380 of the Criminal Procedure Laws, which allow an upper limit of four years where the sentences are consecutive, a Magistrate Court in Lagos cannot exceed the limits created by Section 18 of the MCL. That is because while Section 380 of the CPL is a general provision, Section 18 of the MCL is a specific provision.

Where the aggregate or the sum total of the consecutive sentences imposed by a Magistrate Court exceeds its jurisdiction to punish under Section 18 of the MCL the sentences shall be reduced on appeal to the Magistrate’s limit under Section 18 of the MCL. See the case of Emone v. The Police (1956): in this case, a Magistrate Court Grade II, which previously had jurisdiction to impose a maximum sentence of one year, convicted the accused person on three counts of offences. The court passed consecutive sentences, which added up to two years. On appeal, the sentence was reduced to one year. The same decision was arrived at in Quartey V. IGP (1957).

Similarly, if the Magistrate Court exceeds its limit to impose a fine, on appeal, the fines shall be reduced to the limit of the Magistrate Court’s jurisdiction to impose a fine under Section 18 of the MCL. Note that the State Governor may, by notice published in the Official Gazette, increase the jurisdiction of Magistrate Courts.

In Lagos State, there is a significant distinction between the jurisdiction of the Magistrate Court to try offences and their jurisdiction to impose penalty. The jurisdiction to try an offence is determined by whether the offence is indictable or non-indictable. Section 18 of the MCL provides that all grades of Magistrates in Lagos can try every non-indictable offence. However, with respect to indictable offences, all Magistrates except Magistrate Grade III have jurisdiction to try. Therefore, once an offence is non-indictable, no matter the penalty prescribed for the offence by the law which created it, a Magistrate in Lagos can try an offender for the offence.
However, because Section 18 states limits on the jurisdiction of each grade of Magistrate to impose penalties, a Magistrate Court that tries an offence for which it cannot impose the maximum penalty can only impose the penalty prescribed for it by Section 18 of the MCL.
In Maiyaki & Ors. V. The Registrar, Yaba Magistrate Court (1990), a Magistrate Court Grade I tried the accused person for attempted murder, which carries a maximum penalty of life imprisonment. Upon conviction, the court imposed a sentence of 3 years. The Court of Appeal upheld the sentence but noted that it borders on judicial rascality for a Chief Magistrate to have assigned an offence punishable with life imprisonment to a Magistrate Court Grade I.
APPELLATE JURISDICTION OF MAGISTRATE COURT

By virtue of Section 41 of the Customary Courts Law (CCL), the Magistrate Court hears all criminal appeal from Customary Courts.

MAGISTRATE COURTS IN OTHER SOUTHERN STATES

Magistrate Courts exist in other Southern States of Nigeria with similar features as the courts in Lagos State. In Delta State for instance, the Magistrate Courts have jurisdiction over:



  1. Any offence for which the Magistrate Court has jurisdiction to impose the maximum penalty.

  2. All other offences for which the Magistrate Court cannot impose the maximum penalty provided that:

    1. The court is of the opinion that given the particular circumstance of the offence and the antecedents of the accused, that the court can adequately punish the accused within the limit of the court’s jurisdiction to punish.

    2. The accused person consents to be tried by the Magistrate Court and

    3. The prosecutor, if a Law Officer, consents to the trial.

  3. Any offence, which is declared by the law, which created it to be triable summarily.

The jurisdiction of Magistrate Courts in other Southern States may also be increased by the Governor, by notice published in the Official Gazette.


NORTHERN NIGERIA

  1. AREA COURTS

Before the creation of the Area Courts there were in existence what was then known as Native Courts. The Area Court Edict, 1967 created Area Courts and consequently replaced the Native Courts. By virtue of Section 3 of the Area Court Edict 1967, Area Courts were established by Warrant under the hand of the Chief Judge of the State. Section 4 provides that Area Courts may be presided over by a judge sitting alone or by a judge sitting with one or more members. Section 5 of the Area Court Edict also authorises Area Courts to sit with assessors who are approved by the Chief Judge.

JURISDICTION OVER PERSONS

Section 15 of the Area Court Edict provides that the Court shall have jurisdiction over –


  1. Any person whose parents were members of any tribe indigenous to some parts of Africa and the descendants of such a person.

  2. Any person one of whose parents was a member of a tribe whose tribe is indigenous to some parts of Africa.

  3. Any person who consents to be tried by an Area Court.


JURISDICTION OVER OFFENCES

By virtue of Section 12(2) of the Criminal Procedure Code (CPCL), Area Courts have jurisdiction over offences contained in Column 7 of Appendix A to the CPCL. Also, Area Courts will have jurisdiction to try offences where the Governor of a State expressly confers jurisdiction on it.

JURISDICTION OF AREA COURTS


COURTS

TERMS OF IMPRISONMENT

FINE

N

1. Upper Area Court

Unlimited

Unlimited

2. Area Court Grade I

5 years

N1,000.00

3. Area Court Grade II

3 years

N 600.00

4. Area Court Grade III

9 months


N100.00

These are the upper limits of penalties Area Courts can impose.


PRACTICE AND PROCEDURE AT AREA COURTS

Section 387 of the CPCL provides that the framing of a formal charge is not necessary at Area Courts. Alabi v COP.

Section 6 of the Area Court Edict provides that Area Courts are not bound to strictly observe the Rules of Evidence or Practices and Procedure. Once the proceeding of an Area Court is in accord with substantial justice, its decision will not be set aside on appeal. In Akiga v. Tiv Native Authority (1965), the accused person was convicted despite the admission of evidence of his previous conviction during the trial. The Court of Appeal held that though inadmissible evidence was admitted contrary to the Rules of Evidence, there was no miscarriage of justice.
However, in Jos Native Authority v. Allah Na Gani (1968), the accused was convicted of raping a seven-year-old girl. There was no evidence of penetration. The only evidence at the trial was that the accused lay on the girl. The evidence was not corroborated and the accused was convicted. On appeal, the court held that the admission of hearsay and a conviction based on evidence which required corroboration was contrary to the Rules of Evidence. Consequently, there was a miscarriage of justice.
THE RIGHT OF PARTIES TO COUNSEL AT AREA COURTS

Section 390 of the CPCL and Section 28 of the Area Court Edict both prohibited the appearance of Legal Practitioners before Area Courts. However, these provisions have been held to be contrary to the express provision of Section 36(6)(c) of the 1999 Constitution, which gives an accused person the right to defend himself personally or by a Counsel of his own choice.

That was the decision of the court in Uzodinma v. COP (1982). The accused person was arraigned before an Area Court. He engaged a Legal Practitioner to represent him. The Area Court Judge cited Section 390 of the CPCL and ruled that the Legal Practitioner had no right of audience in his Court. The accused person was subsequently convicted and he appealed. The court held that Section 390 of the Criminal Procedure Code (CPCL) was in conflict with Section 36 (6)(c) of the 1979 Constitution. His conviction was set aside.

APPEALS

Any person who is aggrieved by the decision of an Area Court Grades I, II or III may appeal to the Upper Area Court. A person aggrieved by the decision of the Upper Area Court may appeal to the High Court. Those who have a right of appeal are:



  1. Persons aggrieved by decisions of the Upper Area Court.

  2. Area Court Inspectors who can appeal suo motu, that is, who can appeal on their own volition or upon the report of an aggrieved person.




  1. MAGISTRATE COURTS

Section 8 of the Criminal Procedure Code (CPCL) creates four grades of Magistrate Courts in Northern Nigeria. The courts and their jurisdiction to impose penalties are as follows:
JURISDICTION TO IMPOSE PENALTIES

S/N

COURTS

GRADES


YEARS OF IMPRISONMENT

FINE

N

1.

CHIEF MAGISTRATE COURT





5 YEARS

N1,000.00

2.

MAGISTRATE COURT

GRADE I

3 YEARS

N600.00

3.

MAGISTRATE COURT

GRADE II

1½ YEARS

N400.00

4.

MAGISTRATE COURT

GRADE III

9 MONTHS

N200.00

Section 8 of the CPCL has been amended in some States in the North to create seven grades of Magistrate Court. Kano and Plateau States are notable examples.


JURISDICTION OVER OFFENCES

The jurisdiction of Magistrate Courts in the North over offences are as follows:

For offences in the Penal Code, Column 6 of Appendix A to the CPCL contains the list of offences that may be tried by each grade of Magistrate Court in the North. However, Magistrate Courts of higher grade can also try the offences listed for magistrate courts of lower grade. For non-Penal Code offences:


  1. Magistrate Courts in the North can also try offences where the law provides that the offences can be tried summarily because the Magistrate Court is a court of summary trial.

In such a case, the Magistrate Court can impose the penalty prescribed by that law even if such penalty exceeds the Magistrate Court’s jurisdiction to punish as stated in Appendix ‘B’ to the CPCL.



  1. Magistrate Courts can also try offences where the law, which created the offence expressly confers jurisdiction on Magistrate Courts.




  1. Where the law is silent on jurisdiction and the penalty for the offence is not more than the jurisdiction of the Magistrate Courts, a Magistrate Court can try such an offence.

See the case of Odiai V. Commissioner of Police (1962) NRNLR 9 and also the case of Aba v. COP (1962) NNLR 37.
Note that the State Governor may, by order in writing on the recommendation of the Chief Judge, increase the jurisdiction of any Magistrate Court. Also, Magistrate Courts cannot try any offence that is punishable with the death penalty.
CONSECUTIVE SENTENCES

If a Magistrate Court in the North convicts an accused of more than one offence, he must sentence the accused on each of the offences. If the sentences are to run consecutively, Section 24 of the CPCL permits the Magistrate Court to exceed the limits of his jurisdiction to impose penalty. However, the Magistrate cannot exceed his limit by more than twice of his power to impose penalty. In other words, the sum total of his consecutive sentences must not be more than twice his limit.
REFERENCE TO HIGHER COURTS

If after conviction, a Magistrate Court in the North is of the opinion that the sentence he has jurisdiction to impose cannot adequately punish the convicted person, he can refer the case to a higher court for penalty alone. That is the provision of Section 257 of the CPCL. The court the accused is referred cannot retry the case. Its duty is only to impose a penalty. By reference to higher court means from Magistrate Grade II to Grade I, to Senior Magistrate etc.


STATE HIGH COURTS

The jurisdiction of the State High Courts is uniform nationwide, the only exception being reference to the High Courts in the North and appeals from decisions from Area Courts. The State High Courts were created by Section 270 of the 1999 Constitution. Section 272 of the same Constitution provides that the jurisdiction of the State High Courts is subject to the jurisdiction of the Federal High Courts as contained in Section 251(3) of the 1999 Constitution.



STATE HIGH COURTS IN THE SOUTH

They have jurisdiction over the following offences:



  1. All indictable offences contained in an information.

  2. All non-indictable offences.

  3. Any non-indictable offence brought by complaints.

  4. Appeals from decisions of Magistrate Courts.


HIGH COURTS IN THE NORTH

They have jurisdiction over the following offences:



  1. All the offences contained in Column Six of Appendix A to the CPCL.

  2. All offences in respect of which jurisdiction is expressly conferred on the High Courts.

  3. Appeals from decisions of Magistrate Courts.

  4. Appeals from decisions of Area Courts.


COURTS OF APPELLATE CRIMINAL JURISDICTION

THE COURT OF APPEAL

This court was originally established in 1976 by the Court of Appeal Act 1976. Presently, it is established by Section 237 of the 1999 Constitution. The jurisdiction of the Court of Appeal to hear and determine criminal appeals from State High Courts and Federal High Courts is contained in Section 240 of the 1999 Constitution. That section confers exclusive jurisdiction to the Court of Appeal in respect of appeals from:


  1. Federal High Courts.

  2. State High Courts.

  3. High Court of the Federal Capital Territory.

  4. Sharia Court of Appeal of the Federal Capital Territory.

  5. Sharia Court of Appeal of the States.

  6. Customary Court of Appeal of the FCT.

  7. Customary Court of Appeal of the States.

  8. Courts martial and

  9. Other tribunals as may be prescribed by an Act of the National Assembly.


THE SUPREME COURT

This is the apex court in the land established by Section 230 of the 1999 Constitution. It hears and determines appeal from decisions of the Court of Appeal by virtue of Section 233 of the 1999 Constitution.
COURTS OF SPECIAL CRIMINAL JURISDICTION

THE FEDERAL HIGH COURT

The Federal High Court replaced the Federal Revenue Court, which was created in 1973. The jurisdiction of the Federal High Court as provided for in Section 230 of the 1979 Constitution led to a conflict of jurisdiction between the Federal High Court and the State High Courts. The attempt to resolve this conflict by the amendment of Section 230 under the Constitution (Suspension and Modification) Decree No. 107 of 1993 failed.

However, under the 1999 Constitution, the conflict of jurisdiction between the two courts seems to have been laid to rest. Section 272 of the 1999 Constitution, which confers jurisdiction on State High Courts states that the jurisdiction is subject to that of the Federal High Court. Furthermore, Section 251 of the 1999 Constitution, which confers jurisdiction on the Federal High Court states that jurisdiction of the court in civil matters is exclusive although Section 251(2) and (3) which confers criminal jurisdiction on the Federal High Court does not use the word “exclusive”. Because the jurisdiction of the State High Courts has been made subject to that of the Federal High Court, it is safe to assume that the criminal matters pertaining to or arising from the exclusive civil jurisdiction of the Federal High Court, the Federal High Court also has exclusive jurisdiction. Section 251(2): The Federal High Court shall have and exercise jurisdiction and powers in respect of treason, treasonable felony and allied offences.



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