Week 3 &4 Sources of Criminal Procedure Laws


RIGHT TO ADEQUATE TIME AND FACILITIES FOR HIS DEFENCE.- S. 36(6) (B) OF THE 1999 CONSTITUTION AS AMENDED

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4. RIGHT TO ADEQUATE TIME AND FACILITIES FOR HIS DEFENCE.- S. 36(6) (B) OF THE 1999 CONSTITUTION AS AMENDED.


  • S36(6)(b): “Every person who is charged with a criminal offence shall be entitled to be given adequate time and facilities for the preparation of his defence”

  • The time referred to here relates not only to the 1st day to which the case is slated for defence but includes other reasonable adjournment that may be sought by the defence. Accused to provide reasons for adjournment, as CT is not bound to grant incessant adjournments. Udo v The State (1988) held that a capital offence, an adjournment to secure the services of a counsel or if his counsel is absent, it should be granted. Where accused cannot afford the services of a counsel in a capital case, one must be appointed for him because the law states that he should not defend himself in a capital offence

  • The Court is to grant adjournment to the accused in order to secure a Counsel or witnesses for non-capital offences. He cannot state that a counsel is not mandatory

  • Shenife v State: CT has utmost discretion to grant adjournment and will not grant a frivolous one

  • Gokpa v IGP (1961): case was stood down but the nearest lawyer was 23km away and thus it was held that the time frame for him to get a lawyer was insufficient

  • Yanor v State: the court may not countenance unreasonable request for adjournment

  • The accused is to be given copies of the Charge, statements of the witnesses and proof of evidence by the Prosecution – GOKPA V.IGP
  • Where a witness is absent and an adjournment is sought, the accused must satisfy the Court that: (Yanor v State)


    1. The witness is material to his case

    2. The accused has not been guilty of negligence in procuring the witnesses attendance

    3. There is reasonable expectation that he can procure the witness at the next adjourned date i.e. he can procure his attendance for a certain date. ORITSE-YANOR & ANOR. VS. THE STATE.(Several adjournments)

    4. He has not been granted adjournments several times to procure this particular witness: Yanor v State

  • If a suspect is in the Police station, he is to be allowed to see his Counsel who will assist him in preparing his defence.

  • Facilities means the accused must be given the necessary documents to prepare for his case – e.g. witness statements and any other material that will assist the accused in preparing for his defence

  • If an accused is standing trial for murder or any capital offence and he is not represented by a Counsel, the Court should ensure that one is provided for the accused: S. 352 of the CPL, S. 186 of the CPCL

JOSIAH VS. THE STATE: accused should not defend himself in a capital case

QUERY-since adjournment is not mandatory, does the accused in a murder case have a right to complain if he neglects the case after several adjournments.



5. RIGHT TO A COUNSEL. -S. 36(6) (c) of the 1999 Constitution as amended.

  • Every person who is charged with a criminal offence shall be entitled to defend himself in person or by legal practitioners of his own choice.
  • A party cannot be denied the right to counsel of his choice neither can a counsel be imposed on him if he chooses to defend himself. s390 CPCL and s28 Area Court Edict were declared as nullities in Uzodinma v COP (1982): whether section 28 Area Court Edict and s390 CPCL providing that legal practitioners cannot appear in Area CTs was constitutional. CT held this was unconstitutional as legal practitioner can appear in any CT in Nigeria


  • ECWA v Ijesha (1999): the SAN Privileges and Functions Rule was not unconstitutional and SANs cannot appear in inferior CTs. This rule relates to an honorary role and the lawyer who is a SAN has the option to refuse the title of a SAN if he wants to appear in a lower CT. (Note: Magistrate CT Law of Lagos State 2009: all lawyers can appear before the Magistrate CT notwithstanding any other law)

  • But note the Supreme Ct’s observations in Awolowo v Usman Sarki (1966): held that such a counsel (i.e. the one chosen by the accused) must not be subject to any disability. Awolowo wanted a foreign counsel to defend him and the counsel was denied visa into Nigeria and Awolowo stated that his constitutional right had been violated. Ct rejected this contention since the counsel was subject to a disability

  • In ALL capital offences, legal representation is mandatory-

Mandatory Legal Representation in Capital Offences

S. 352 of the CPL,

S. 186 of the CPCL,

S. 263 of the ACJL

JOSIAH VS. THE STATE: tried for robbery and murder. The appellate CT held not being represented by legal practitioner was a denial of his right to counsel. CT is under an obligation to provide one for him

  • An accused person unrepresented by counsel in NON capital offences should be informed of his right to legal representation

QUALIFICATION/LIMITATION-If the accused person chooses a counsel who is subject to other limitations and such limitations prevent the counsel from defending him, he cannot complain of being denied to counsel of his choice-


AWOLOWO & ORS v. MINISTER ON INTERNAL AFFAIRS & ORS
EXCEPTIONS TO THE ABOVE RIGHT ARE: The Counsel is under a legal disability or the right is in abeyance e.g. the Counsel is disqualified from practicing or has not paid his practicing fees or that the Counsel is from abroad who has not fulfilled the immigration requirements/ conditions to be allowed to appear in Nigerian Courts.- S. 8(1) of the LPA ; AWOLOWO V. MIN .INTERNAL AFFAIRS& ORS

6. RIGHT TO EXAMINE PROSECUTION’S WITNESSES

S. 36(6) (d) of the 1999 Constitution as amended.



  • Every person who is charged with a criminal offence shall be entitled to examine, in person or by his legal practitioners, the witnesses called by the prosecution before any court or tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court or tribunal on the same conditions as those applying to the witnesses called by the prosecution

  • Where the Court refused the accused to cross-examine or re-call witnesses that tendered a written document in evidence, it is a breach of this right.

  • Where the CT gives the opportunity to examine and he does not, he cannot later on appeal state that he was denied this right

  • TULU VS. BAUCHI NATIVE AUTHORITY (1965) (court asked questions): The prosecution called many witnesses. The CT did not allow the accused to cross examine any of the prosecution’s witnesses. Instead the judge put several questions to the witnesses. Held that this was a gross violation of the constitutional right under s36(6)(d)

  • IDRISU Vs THE STATE.

NB-(EXAMS)-the court is not allowed to call witnesses, etc when there is no prosecution-s.189(2) CPCL


EXCEPTIONS TO THE ABOVE ARE:


      1. If the accused or his Counsel asks irrelevant questions

      2. Questions are asked to harass a witness. S. 224-226 of the Evidence Act 2011.

7. Right to an interpreter. -S. 36(6) (e) of the 1999 Constitution as amended.

  • “Every person charged with a criminal offence shall be entitled to without payment, the assistance of an interpreter if he cannot understand the language used at the trial of the offence”

  • If an accused person does not understand the language of the Court (English), he is to be provided with an interpreter at no cost to the accused. Where one is required and not provided, on appeal such proceedings will be quashed.

  • The interpreter must be competent in both languages.

AJAYI VS. ZARIA NATIVE AUTHORITY (1964): the interpreter was not competent to interpret in Yoruba. The appellate CT quashed the conviction. The provision of the interpreter is at no cost to the accused

Anyanwu v State (2002): where an interpreter is required and found to be incompetent, any conviction based on it is liable to be quashed (as this is the same as having no interpreter)

  • The interpreter must interpret whatever is said by the complainants, witnesses and the court sentence by sentence. The interpreter shall interpret whatever it is said immediately it is said. He should not wait until everything is said and just interprets what he remembers -ZARIA NATIVE AUTHORITY V. BAKARI
  • Where the accused fails to inform the CT that he does not understand English language, he cannot complain later that he does not understand English (Udose v State (2007): failure to provide an interpreter will be treated as a mere irregularity). At the point of arraignment, the Registrar normally asks whether the accused speaks and understands English Language. It is at this point that the accused should inform CT that he cannot understand or speak English


  • The court must ensure that the interpreter does not have any relationship with the parties or any other connection to the case -R. V. OGUCHA

  • -ZARIA NA V. BAKARI

  • Interpreter must be made available at no cost to the accused

THE EFFECT OF A FAILURE TO PROVIDE AN INTERPRETER. –

Proceedings will be null and void. The accused’s conviction will be quashed and a re-trial ordered.



        • The accused is to inform the Court timeously that an interpreter is needed otherwise he is deemed to have waived it. THE STATE v. GWONTO

        • An interpreter in any proceedings before the court or JP must be sworn before interpreting while under the CPCL he must be bound by oath or affimation-s.242(1)CPCL

        • Interpreter cannot be used where the accused person understands the language of the court- ONYIA V. STATE

        • Where an accused is represented by counsel at trial, and they NEVER raised; it cannot be a ground for setting a conviction aside.

        • The issue of denial of interpreter can only be raised on appeal if it was claimed at the court of trial and denied.

LIMITATION-it is available only on request of the accused- THE STATE V. GWONTO

8. RIGHT TO ONLY ONE TRIAL FOR AN OFFENCE.-S. 36(9) OF THE 1999 CONSTITUTION AS AMENDED. Right against double jeopardy: Nafiu Rabiu v The State (1980). See section 181 CPL, s223 CPCL, s173 ACJL, Igbinedion v FRN (2014) All FWLR (Pt 718) pg 879, FRN v Igbinedion (2014) All FWLR (pt 734) pg 101

“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”. If an accused claims that he has already been tried, he can raise either of the following pleas:


  1. Autre fois acquit (that he has already been acquitted for the offence he is standing trial for

  2. Autre fois convict (that he has already been convicted for the offence he is stranding trial for).

NOTE-He should raise an objection to the charge BEFORE PLEA. It is raised immediately after the charge is read. State v Duke, IGP v Igboroji. Can still raise the issue during trial and the CT (because this is an issue of jurisdiction of the CT) will ask him to withdraw his plea.

EDU V.COP (1952): it is not a right that is taken up for the first time on appeal

This objection must be raised before court adjourns to write its judgment.- THE STATE V.DUSHI



ESSENCE –

To bar the state from instituting criminal proceedings against its subjects AD INFINITUM-IGP V.IGBOROJI

Cases where the appellate court will order a re-trial. In a re-trial, none of these pleas can be raised.

THE CONDITIONS FOR RAISING AND SUCCEEDING ON THE BAR PLEAS

(All 4 conditions must be satisfied): s36(9) of the Constitution


  • The first trial must have been on a criminal charge: R v Jinadu – police officer was tried in a Police Orderly Room for the use of unnecessary violence on persons in his custody. He was acquitted but downgraded in rank. Later, he was brought up on criminal charges of assault in a Ct of law under the Criminal Code. Trial Court and Ct of Appeal rejected his plea of autre fois acquit because his previous proceedings was disciplinary under the rules of the police force and not a competent court of law
  • The accused person has been tried by a competent Court of criminal jurisdiction. CHIEF OF AIR STAFF V. IYEN; R v Hodge


UMEZE V. STATE (murder trial at magistrate court). Magistrate Court has no jurisdiction to try capital offences

  • The charge must be for the same offence known to law or offence having same ingredients with the previous offence. Should be the same exact offence. Also an offence of which the accused person could have been convicted of at the first trial, although he was not charged with that offence: R v Jinadu

  • The accused was either convicted or acquitted after the trial. Where case is struck out for want of diligent prosecution, it amounts to a discharge. Termination by nolle prosequi or discharge (Inquiry/ before defence) under S.75 CPL not applicable. Nolle prosequi is not an acquittal but just a discharge.

NOTE(EXAMS)-Where no case submission is rightly upheld, it is a discharge on merit and therefore an acquittal-EXCEPT in magistrate court in the NORTH-S.159(3) CPCL.

Note- Generally, an accused person who is not found guilty of the offence with which he was charged may be convicted of a lesser kindred offence.-


S. 179 (2) CPL;

S. 218 (2) CPCL-An accused person can plead autrefois acquit on the ground that the court of first trial failed to convict him of the lesser offence with which he is now charged.
However, the lesser offence must be related to the offence with which he was earlier tried.
NOTE CAREFULLY- This plea intends to prevent double trial and double conviction not necessarily double punishment-

S. 170 (2) Armed Forces Act 1993: a person tried in a CT martial can be tried again in a regular civil court but the later court should take cognisance of the penalties imposed in the court martial (does not apply to military criminal offences)

EXCEPTION -where the accused will not be considered to be tried twice is an Order of re-trial by a superior Court or Appeal Court.

S.19&23 Court of appeal act;

S.26 Supreme Court ACT

9. Right against trial and conviction on a retroactive legislation .

S. 36 (8) of the 1999 Constitution (FRN) as amended: “No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence heavier than the penalty in force at the time the offence was committed”

It has two aspects as follows:



    1. Not to be punished for an act/omission which was not an offence when committed-

FED. REPUBLIC OF NIGERIA V. IFEGWU; BODE GEORGE V.FRN

    1. Not to be penalised with heavier punishment than that in force at the time the offence was committed. 80% of persons in prison are awaiting trial so penalty that should apply is the one on the day the person committed the offence –

EGUNJOBI V FRN (2002) FWLR (Pt 103) pg 896: conviction was held to be null and void as the Decree had a retrospective effect (9th November 1994) and the act was committed in July 1994

FRN v IFEGWU

IKPASUE Vs. BENDEL STATE and

A.G FED. Vs. CLEMENT ISONG.

10. Right to be tried for an offence known to Law.-S. 36(12) of the 1999 Constitution as amended.

  • “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 therefore 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”


  • The offence an accused is charged with and its penalty must be prescribed by Law. NB-Customary criminal Law is thus abolished in Nigeria. -AOKO VS. FAGBEMI.

  • NB- A WRITTEN LAW refers to an Act of the National Assembly or a law of a State House of Assembly and subsidiary legislation or instrument under the provisions of a law.

  • An accused person, who is charged upon a section of a law which only defines an offence but does not prescribe the penalty for the offence, has not been charged with an offence known to law.

  • ATTORNEY GENERAL FEDERATION v. ISONG, the accused person was charged, tried and convicted for offences under Ss. 3 & 9 Firearms Act of 1966. None of the said section prescribes a penalty for the offences.-OLIEH v. FED. REPUBLIC OF NIGERIA.

  • NOTE-ADULTERY is a criminal offence only in the North under Sections 378 and 388 Penal Code

  • Aoko v Fagbemi: Person alleged to have committed adultery in the South. This is not an offence in the South (Criminal Code) but an offence in the North.

  • Olieh v FRN: there is nothing known as falsely boosting an account. Not an offence known to law. Also see Olademiji v State: Accused was charged for ‘conspiracy to lynch’. Therefore must use the right terms in charging someone with an offence.
  • Olabode George v FRN (2014) All FWLR (Pt 718) pg 879: charge was contract splitting. It was held that no offence known to law as contract splitting.


  • This principle is applicable in military tribunals. See Asake v Nigerian Army Council: superior borrowed money from a subordinate. Held that there was no law clearly stopping a superior officer from doing this and therefore not a clear offence known under the Armed Forces Act.

  • Note: A conviction under a repealed law stands because when the offence was committed, it was an offence known to law. Adonike v State (2015) LPELR -24281 (SC)

10. RIGHT AGAINST TRIAL FOR AN OFFENCE ALREADY PARDONED. -S. 36 (10) OF THE 1999 CONSTITUTION AS AMENDED.

“No person who shows that he has been pardoned for a criminal offence shall again be tried for that offence”



S.211 (1)(b)CPL;

Once a person has been pardoned for an offence, he cannot be tried for the same offence nor be made to suffer disabilities on that account: FALAE V. OBASANJO (No 2) (1999)



OKONGWU V. STATE.
The authority that can grant pardon to a convict for a federal offence is the President of the Federal Republic of Nigeria while the State Governor is the authority in respect of state offences.-S.175 & 212 CFRN 1999.
The power of the President to grant pardon also extends to person convicted or sentenced by a court –martial. Also for federal offences. Governor grants pardon in respect of state offences.
The grant of pardon may be free or subject to lawful conditions

The burden of proving that a convicted person was pardoned is on the convict.

In addition to the proof: He shall produce the instrument of pardon to the court signed by the President or Governor or as contained in the official Gazette of the Government .


OKONGWU V. THE STATE;

OBIDIKE VS.THE STATE
An application for pardon by a convicted person can only be properly made to the committee on Prerogative of Mercy and not to the supreme Court or any other court.- OKEKE V. THE STATE
EFFECT OF PARDON

a. A convict who has been pardoned will no longer serve the penalty imposed on him.

b. A convict who has been pardoned is free from the legal disabilities of a conviction. He is not an ex-convict-FALAE v. OBASANJO (No2) (1999)

NB-Okonkwo v. Council of Legal Education-a pardoned person cannot be called to bar.


WHEN IS AMNESTY GRANTED?

Amnesty is granted to persons who are alleged to have committed an offence but have not been charged to court for the said offence -ISIBOR V. THE STATE.


NB-Criminal justice (release from custody) (Special provisions) Act cap C40- the chief justice exercising the power to release those awaiting trial /commits on recommendation of the prison authorities.

Distinguish between pardon and autre fois convict/acquit.

In a plea of pardon, the accused person is saying that the appropriate authority has pardoned his conviction, while an accused person who pleads autre fois acquit or convict is saying that he has been acquitted or convicted and has served his sentence, thus should not be tried again for the same offence.



Also distinguish it from nolle prosequi and at what stage each is applicable.

11. RIGHT TO SILENCE. -S. 36 (11) OF THE 1999 CONSTITUTION AS AMENDED.

  • The accused has a right not to say anything at his trial because the Prosecution has the burden to proof his guilt.
  • “No person who is charged with a criminal offence shall be compelled to give evidence at the trial”. This right to silence is at the point of opening his defence. (This does not mean that he is not speaking in CT but he is not bringing a defence to his case). Also this right to silence is different from standing mute at the point of arraignment


  • This right to silence is also replicated in other statutes – Accused is a competent but not compellable witness for the defence

Ss. 236(1) CPCL; S.287 (1)CPL; S. 244 ACJL
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