The accused must prove that because he was at some other place it was impossible for him to have committed the crime he is charged with. –
ODIAKA VS. THE STATE.
It is to be raised at the earliest stage of investigation otherwise it may be disregarded. YANOR VS. THE STATE
NDIDI VS. THE STATE. EX-IMPROVISO RULE
This is a situation where the prosecution at the close of defence may with leave of court call or recall witnesses out of the usual order of proceedings (PW-DW-FA)-
S. 241 of the ACJL,
S. 289 of the CPL
S. 194 of the CPCL. CONDITIONS FOR RELIANCE ON THE EX IMPROVISO RULE BY THE PROSECUTION
It must come AT THE END of the defence case
LEAVE OF COURT MUST be sought by prosecution
The defence must have raised a NEW MATTER which human ingenuity could not have foreseen (could could not have reasonably foreseen)
ONUOHA VS. THE STATE and
BALA VS. COP. LIMITATIONS OF THE EX IMPROVISO RULE
The rule will not apply to the DEFENCE OF ALIBI-ONUOHA V. STATE (SC)
The evidence of the PROSECUTION witness must only be used to REBUT the NEW evidence adduced by the defence – BALA V. COP
OPTIONS OPEN TO THE PROSECUTION WHEN THE RULE ARISES
The Prosecution in that case may with the leave of Court be allowed to call witnesses in rebuttal of such new evidence led by the defence.
The Prosecution may be allowed to respond on point of Law by way of a Reply
S. 194 of the CPCL (NORTH ONLY)
NB: CPCL permits AG to apply and call additional witnesses. This is not the same as the ex-improviso rule
VISIT TO THE LOCUS IN QUO (THE SCENE OF AN OFFENCE).
If court is satisfied that there is need to inspect immovable real evidence by the Court for the proper determination of the case, then the court will adjourn and continue proceedings there or adjourn and proceed to view and return to court.
S. 243 of the CPCL. WHEN CAN A VISIT TO THE LOCUS BE CONDUCTED
It may be conducted on the application of the parties or the Court suo motu: Unipetrol v Adireje, Ehikioya v COP
It can be made at any time before judgment-ARUTU V. R (done after final address). But the earlier the better as it is to assist the court to come to a better understanding of the matter.
PROCEDURE FOR THE CONDUCT OF A VISIT TO THE LOCUS IN QUO
There are two (2) ways as follows:
The Court may adjourn to the locus to inspect and continue trial there by taking witnesses in evidence and later the Court will reconvene in the regular Court to continue the trial, without recalling the witnesses. –
S. 127(2) (a) of the Evidence Act
COP VS. OLAOPA.
The Court will adjourn to visit the locus, take notes of the things observed and reconvene in Court to continue proceedings where it will take the testimony of witnesses in Court. –
S. 127(2) (b) of the Evidence Act
R VS. DOGBE, AREMU V AG WESTERN NIGERIA, OGUNTOLA V STATE EFFECT OF NON-COMPLIANCE WITH THE ABOVE METHODS-
It will not vitiate trial unless such failure occasioned a miscarriage of justice-
AREMU V. AG WESTERN NIGERIA
NOTE-The accused persons must all be present at the locus criminis: s207(2) CPL, s243 CPCL, Adunfe v IGP. Opportunity to clarify uncertainties and contradictions. Not to present fresh evidence different from that already adduced at court. Note: no matter the number of accused persons or difficulties, this must be complied with.
However, non-compliance will not vitiate the trial unless it occasioned a miscarriage of justice.ADUNFE Vs. IGP (125 accused persons not taken and not all were taken to the locus)- APPEAL DISMISSED(Not a miscarriage of justice) – particularly if their counsel was present at the locus.
LIMITATIONS ARISING DURING VISIT TO LOCUS IN QUO
It is not an opportunity for either of the parties to present a fresh evidence different from the one already adduced before the court.-ODICHE v. CHIBOGWU
FINAL OR CONCLUDING ADDRESSES
SECTIONS 241&242 CPL;
192, 193 CPCL
At the end of case for defence, accused or counsel can deliver a final address, prosecutor may reply.
This is the summing up of the facts and evidence adduced before the Court applying the Law to them and urging the Court to return verdict in the favour of a party. It does not constitute evidence: R v COBOLAH
Accused has a right to further reply on POINTS OF LAW.
LEGAL STATUS OF FINAL ADDRESS AND REPLY
The final address and reply is not part of evidence and will not vitiate the trial if not done -HASSAN V. UNAM.
The Court can write its Judgment before the final addresses of the parties. –
NDU VS. THE STATE
R V. COBOLAH. (this is not ADVISABLE)-
QUERY-S.294(1) CFRN EFFECT OF DENIAL OF A PARTY’S RIGHT TO ADDRESS BY A JUDGE
Generally, the right to address is a constitutional right of the accused and the court cannot deny the parties-ISHERU V. AYOADE.
However, where the right to address is denied and it occasioned a miscarriage of justice, the proceedings may be SET ASIDE- OBODO V. OLANWU Both CPL & CPCL do not provide form a final address should take but S273(2) ACJL states that they are expected to be in writing and in open court.
PROSECUTION’S RIGHT OF REPLY
A prosecutors right of reply depends on the conduct of the defence and the status of the prosecutor. He could be a law officer, police officer or private prosecutor
Where the Prosecutor is a law officer, he has an automatic right of reply to the final address of the accused
Proviso to S. 202 CPL and
AWOBUTU VS. THE STATE;
OSAHON V FRN
A Law Officer INCLUDE the AG, Solicitor-general, DPP, Pupil/ Senior/principal State Counsel, even a Private Legal Practitioner(WITH FIAT)-
The right of reply of a law officer is at his discretion. He cannot be compelled by the court to reply to a final address.
He cannot be refused the exercise of this right of reply: ADAMU v. AG BENDEL STATE
NOTE-a police officer who is a legal practitioner equally has a right of reply.
QUERY (Does he need fiat UNDER CPCL AND CPCL).
POLICE AND PRIVATE PROSECUTORS
The right of reply of a police officer and a private prosecutor (WITH AG’S FIAT) depends on the following;
If no witness was called for the defence EXCEPT the accused himself or a witness testifying as to the accused’s character ONLY and accused does not tender any documents in evidence, then the Prosecution has NO right of reply.-ACHAJI ORS V. COP, s241 CPL
NOTE- In the NORTH, though no reply, they may adduce evidence of the accused’s previous conviction -S.194(2)CPCL
If the defence introduced a new matter in his address which is not supported by the evidence adduced in his defence, the Prosecution MAY reply with the LEAVE OF COURT.-
S.194 (1) of the CPCL,
S. 241 of the CPL and
S. 269(1) of the ACJL.
If the accused called witnesses other than as to character or tenders any document not relating to character in support of his case, the Prosecution SHALL have a right of reply. STATE VS. SANUSI, s242 CPL, s194(1) CPCL
For the purposes of determining a right of reply, testimony of the accused is not treated as testimony of witness to enable prosecutor acquire a right of reply: ACHAJI V POLICE
Week 17: JUDGMENT AND SENTENCING
MEANING OF JUDGMENT-A judgment is the final determination of a court of competent jurisdiction upon matters submitted to it. It is the conclusion of law upon facts found or admitted by the parties or upon their default in the course of the case. The judicial determination of a case after consideration of evidence in the case
THE FORM AND CONTENT OF A VALID JUDGMENT-
S.245 CPL; S.275 ACJL; S.268&269 CPCL
A valid judgement must be in writing before delivery to open court
STATE v LOPEZ 1 All NLR 356.
But Proviso to s245 CPL: magistrate is allowed to deliver an oral judgment. (provided that (a) records briefly in the book his decision thereon and where necessary his reasons for such decision and delivers an oral judgment, or (b) records such information in a prescribed form. This is because the magistrate court sits on some many cases (as a court of summary jurisdiction)
But under S268 & 269 CPCL and 275 ACJL, magistrate cannot deliver oral judgment
Every valid judgement must contain the point or points for determination.
sections 245 CPL,
269 (1) CPCL and
AIGBE v STATE  NMLR 84.
It must contain the decision of the court on each point for determination:
SECTIONS 245 CPL, 269 (1) CPCL and 279 ACJL
It must show whether or not the prosecution has been able to prove the existence of the essential ingredients of the offence.
ONAFOWOKAN v THE STATE
YESUFU v I.G.P  LLR 150.
It must contain the reasons for the decision of the court. See sections 245 CPL, 269(1) CPCL and 279 ACJL.
The court must derive its reasons from the evaluation of the evidence as they relate to law and facts and make findings.
OBAREKI v THE STATE  2 NCR 63, OSAYANDE v THE STATE (1985) 3 S.C. 154.
In magistrate court, after he delivers judgment, tells counsel that they can appeal within 30 days. Sometimes, magistrate signs after this statement but this statement doesn’t form part of the judgment. Court held this does not invalidate the judgment.
NOTE(EXAMS)-Generally, every valid judgement must meet all these requirements to be valid except for an oral judgement of a Magistrate in the South (excluding Lagos State) which need not contain the point for determination. See sections 245 CPL, 279 ACJL.
Failure to comply will make such judgment invalid.
WHAT IS AN ORAL JUDGMENT?
Any Judgment PRONOUNCED IN open court before reduction into writing- STATE V.LOPEZ(CPCL); R V. FADINA
FORMAT OF JUDGMENT
There is no required format that a judgment must take. What is important is that all salient points must be contained therein-ONUOHA v. STATE.
FORM OF A VALID JUDGMENT
An oral judgment which is subsequently reduced into writing remains an oral judgment. R VS. FADINA (judgment delivered from notes) ;
UNAKALAMBA V. COP
It must capture all the issues raised and the Law applied to the issues and how the issues are resolved-ONUOHA VS. STATE
A judgment dictated to a stenographer OR typist does not constitute a written judgment-OKORUWA VS. THE STATE.
A judgment must contain reasons for his decision-
;WILLIE JOHN V. STATE
A Judge cannot deliver his judgment and reserve the reasons till another date.
6 The Judge must convict the accused/defendant in the judgment before sentence.
BANKOLE VS. STATE
YESUFU VS. IGP
The Judge is to formally convict and sentence the accused on each Count of which the accused was found guilty. AIGBE VS. STATE; OTTI V.I.G.P; WILLIE JOHN V.STATE
Judgment must not be dated and signed after ancillary orders made in a judgment.-OBAREKI V.STATE(this is not advisable)
WHEN CAN A JUDGMENT BE WRITTEN
A judgment may be written after the close of evidence but it cannot be delivered before the final addresses are made.-R. V. COBOLAH
This is because a final address is not regarded as part of evidence before the Court.
Also, it is a Constitutional provision that judgment is to be delivered within 90 days after the Final address. -S. 294(1) of the 1999 Constitution as amended.
EFFECT OF FAILURE TO COMPLY WITH THE REQUIREMENTS OF A VALID JUDGMENT
A failure by the trial court to comply with the requirements of a valid judgment as provided for in
SS 245 CPL, 269 CPCL, 275 ACJL will result in the judgment being nullified.
OKORUWA v. STATE:
SHINFIDA v. COP
NOTE-Upon nullifying such judgment, the appellate court may order a RETRIAL (Yahaya v State: where the evidence before the court that it will not be right to allow the accused to go free, where it will not occasion miscarriage of justice) or discharge and acquit the convict depending on the facts – AJAYI v. ZARIA NATIVE AUTHORITY (e.g. that sentence to be imposed would lapse by the time the accused is retrialed)
NB- Under the CPCL, the substance of the judgment shall be explained to the accused in the language, he understands and the accused is entitled to be present to hear the judgment: S. 268 (2) CPCL However absence of the accused on the day of the judgment does not invalidate the judgment: S. 268(3) CPCLTIME LIMIT FOR DELIVERY OFJUDGMENT
A judgment must be delivered not later than 90 days after the adoption of final addresses, inclusive of the date of its adoption-S. 294(1) of the 1999 Constitution as amended. Constitution prescribes this because reasons for the judgment will include the judge’s perception of the witnesses. If a long time passes before writing judgment, he would have forgotten his impression of witnesses
Authenticated copies of the judgment are to be given to the parties within 7 days of its delivery-S. 294(1) of the 1999 Constitution as amended.
HOW IS THE TIME CALCULATED
Time is calculated from the date of the final address. Where there s no final address, time starts counting from the ay when the last witness testifies. Where a court BEFORE expiration of the 90 days invites counsel to make a FURTHER address time starts counting from date of the further address-SODIPO V. LEMMINKAINEN.
EFFECT OF FAILURE TO DELIVER JUDGMENT WITHIN 90 DAYS
However if a judgment is delivered after the 90 days, it will not vitiate the trial unless the delay has occasioned a miscarriage of justice. -S. 294(5) of the 1999 Constitution as amended.
MODE OF DELIVERY OF JUDGMENT
Generally, the judge who heard a case from arraignment till delivery of final address should deliver the judgment of the court.
If BEFORE the judge delivers his judgment, he is transferred, elevated, retired or otherwise ceases to have jurisdiction, he can no longer deliver a valid judgment in the case- IYELA v. C.O.P EXCEPTION
However, where a Magistrate or a Judge has concluded the hearing of a case and written and signed his judgment, if he is unavoidably prevented from delivering the judgment, it might be delivered and pronounced by another magistrate or judge in his stead in open court and in the presence of the accused-
SECTIONS 251 CPL;
AG FED v. ANPP DELIVERY OF THE JUDGMENT BY SC/CA JUDGES
Every Justice of the Court of Appeal or Supreme Court who sits on a case must express and deliver his opinion in writing or in the alternative state that he adopts the opinion of any other justice who delivers a written opinion.
SECTION 294 (2) CFRN 1999 NOTE THE FOLLOWING:
It is not mandatory that all the justices must be present when the judgment of the court is delivered.
Therefore, while the decision of the majority of Justices who sit on appeal forms the judgment of the court, the judgment of the court shall be validly delivered by ONE of the Justices who sits for the purpose of delivering judgment.-
S 294 (3)(4) CFRN
Where a Justice of CA or SC is unavoidably absent, his judgment or opinion may be read or delivered by another Justice of the Court.
The judgment or opinion of a Justice of CA/SC who heard an appeal but had ceased to be a Justice of the Court when the judgment was delivered may be PRONOUNCED by any of the other Justices of Appeal and it would be valid.
SHITTA BEY V.AGF
If the judgment or opinion of CA/SC judge is DELIVERED or READ on his behalf AFTER he has been elevated, died, retired, dismissed or ceased to be a member of that court, it would be without jurisdiction; hence null and void.-SHITTA BEY V. AGF
AMENDMENT OF JUDGMENT
Generally, after the delivery of a judgment, the Judge or Magistrate cannot amend his judgment because the judge becomes functus officio after delivery of his judgment but exception in s275, 309, 317 CPCL
A judge may only amend his judgment where:
1. Before the execution of a sentence of caning, medical opinion reveals that the offender is not in a fit state of health. An amendment may substitute any other sentence which the court could have passed at the trial-S. 309 CPCL(north)
2. Upon a conviction for contempt in the face of the court, court may in its discretion discharge the offender, the punishment where the offender complies with the request of the court or tenders an apology-S, 317 CPCL-
There is no equivalent provision on this in the CPL but it is applicable in the CPL states.
3. There is need to correct a clerical error-S. 275 CPCL(MAY APPLY TO CPL/ACJL).
Apart from the three circumstances mentioned above, a judge cannot amend any other error however trivial. To do so will be unlawful because once the judge has delivered his judgment he becomes functus officio - UNAKALAMBA v. STATE; BAKARE V. STATE. NB == Where a Judge passes a death sentence without directing in what manner the sentence will be carried out, it is a mere irregularity which may be amended by the Judge after delivery of judgment-GANO v. STATE CONVICTION
The judgment of the court must end with a finding of guilty or not guilty.
A conviction is an act of a court of competent jurisdiction adjudging a person to be guilty of a punishable offence whether the penalty is imprisonment, fine or binding even to be of good behaviour-YALEKHUE v. OMOREGBE.
NOTE THE FOLLOWING
The judgment of a court MUST convict the accused before he is sentenced - R v. EKPO
Once it is clear from the evidence and findings of the trial court that the accused person committed the offence charged, failure to record the conviction or sentence is a mere irregularity which may be remedied by the appellant court.
ONYEJEKWE v. THE STATE
However, it is important that the conviction must be expressly stated on the records or discernible from the records.
Failure to enter a conviction before sentence may invalidate the judgment-ADAMU & ORS v. THE STATE
Where an accused person is charged and tried for more than one count of offences, or several accused persons are charged for one or more counts of offences, the court must deliver a verdict in respect OF EACH COUNT OR EACH ACCUSED PERSON as the case may be- OYEDIRAN & ORS v. THE REPUBLIC
A trial court must pronounce its sentences SEPARATELY on ALL the counts of offence in a case - BANKOLE v. STATE.
CONVICTION FOR AN OFFENCE NOT EXPRESSLY CHARGED WITH
S. 160-171 of the ACJL Generally, no person can be pronounced guilty for an offence with which he was not expressly charged.-S. 36(6)(a) CFRN. EXCEPTIONS/CIRCUMSTANCES
Where an accused person charged with a grave offence is convicted for a lesser offence where the evidence before the Court could not sustain the offence he is charged with and there is sufficient and overwhelming evidence in support of the lesser charge. The particulars constituting the lesser offence are carved out/subsumed in the particulars of the offence charged: s179 CPL, 218 CPCL, 166 ACJL
UGURU v. STATE;
NWACHUKWU v. STATE: charged for armed robbery but Ct found offence of robbery
MAJA v. STATE
(TORHAMBA V. IGP-Red pencil rule)
NOTE- the lesser offence must be of a kindred offence with the one the accused is charged with.
An accused can be convicted of a lesser offence: Babalola v State (1989)
When an accused person is convicted for conspiracy to commit the offence although he was not found guilty of the substantive offence- BALOGUN v AG OGUN STATE
Every attempt to commit an offence is punishable by trial court even where the defendant is not expressly charge attempting to commit the said offence.-
Ss. 169 CPL,
S. 219 CPCL;
HONG v. THE STATE.
A person charged for any of the offences of stealing, obtaining property by false pretences, obtaining money by fraud or receiving stolen property may be convicted for any of them in the alternative.
SS. 173 & 174 CPL, S. 217 CPCL
A person charged with rape or defilement of a girl UNDER 13 YEARS may be convicted for indecent assault.
S. 175 CPL
illustration “C” to S. 217 CPCL which uses the term “gross indecency”
A person charged with armed robbery may be convicted of robbery.
NWACHUKWU VS STATE (supra).
SS. 218(1) CPCL
179 (2) CPL
THE PLEA OF ALLOCUTUS OR MITIGATION
After conviction or a plea of guilty, but before sentencing, the Judge/magistrate/registrar will ask the accused or his Counsel to show reasons why sentence should not be passed on him according to Law.
This will require the accused to respond by pleading convincingly to the Court why his sentence should be reduced or that the Court should temper justice with mercy adducing good reasons.
That procedure is known as the plea of allocutus.
S. 247 of the CPL,
S. 197 of the CPCL and
S. 281 of the ACJL.
The EFFECT of the plea is to mitigate the punishment to be passed on the accused but cannot result in cancellation of all punishment-OGBEIDE V.COP
NOTE-For CAPITAL OFFENCES and offences for which the Law has provided MINIMUM /MANDATORY penalties, allocutus has NO EFFECT because they attract mandatory sentences of death and firing squad for capital offence.
EFFECT OF FAILURE OF COURT TO ALLOW PLEA OF ALLOCUTUS.
However, failure of the Court to observe this procedure will not vitiate the trial and conviction. S. 247 of the CPL, S. 197 of the CPCL, S. 281of the ACJL.
POST- ALLOCUTUS PROCEDURE
1. Under the CPL after a convicted person has pleaded an allocutus, the Court proceeds to sentence.
2. Under the CPCL after an allocutus, the Prosecutor may produce evidence of any previous convictions of the convicted person. Thereafter, the court shall proceed to sentence - S. 197 (2) CPCL
3. At the magistrate Court in the North, the Magistrate at this stage may refer the convicted person to a magistrate’s court of a higher grade or to the High Court for stiffer sentence. S. 257(1) of the CPCL.
POSTPONEMENT OF SENTENCE -This is where the Court releases the accused on bail pending when sentence will be passed on him: S. 250 of the CPL,S. 198 of the CPCL and S. 284 of the ACJL. CONSIDERATION OF PENDING CHARGES AGAINST AN ACCUSED IN SENTENCING
S. 249 of the CPL,
S. 258 of the CPCL
S. 279 of the ACJL. CIRCUMSTANCES-
The Court can ONLY consider other Charges against the accused not before it in sentencing where
The accused admits or pleads guilty to the other Charge(s) before another Court and he wishes that it be considered, and
The Prosecution of the other Charges in the OTHER COURT must consent. NB-The Attorney-Generals of States under the CPCL must also consent.
The aim of this procedure is to save cost and time of prosecution.
EFFECT-The effect of considering other Charges against the accused before another Court in his sentence before the Court is that the accused will not be liable to be charged again on those offences considered UNLESS his conviction is set aside on appeal.
NOTE- The sentence to be imposed on the offence convicted upon and the one considered must not be greater than the maximum prescribed for the offence convicted for.-S. 182-194 of the CPL.
MEANING -A sentence is the pronouncement by the court upon the accused person after his conviction in a criminal prosecution imposing the punishment to be inflicted.
The penalty is usually in the form of a fine, imprisonment, caning, binding over, execution.
MODALITIES OF SENTENCING
The sentence of the court must be pronounced in open court.
SECTIONS 198 CPCL, 248 CPL and must be pronounced in the presence of the accused person – ASAKITIPI v. THE STATE
The sentence of the court must be the sentence prescribed for the offence by the law which created it-S. 377 CPL
The court is not under a duty to inform the convicted person of the reason for the sentence of the court - EKPO v. THE STATE.
The court must pronounce a sentence for every count of offence for which the accused is convicted-YESUFU v. I.G.P
The sentence of the court takes effect immediately. It may in some circumstances be postponed but it is never suspended.
Under the CPCL, a court after conviction may retire to consider the sentence, but the court is enjoined to pronounce the sentence in open court at a later date. S. 198 CPCL
Under the CPL a convicted person may be discharged upon self-recognisance with or without sureties on the condition that he shall appear and receive the sentence of the court at a future date - S. 250 CPL
NB =Suspended sentence is unknown to our criminal procedure-STATE v. AUDU CONSECUTIVE AND CONCURRENT SENTENCES
If more than one sentence of imprisonment is imposed on the different Counts of the Charge, it is deemed to run consecutively if not specifically mentioned to be concurrent. The Court can also order that the term of imprisonment run concurrently or consecutively.
S. 380 of the CPL, S. 24 of the CPCL and EMONE VS. COP.
EXCEPTION-However, under Ss. 24 & 312 CPCL, multiple terms of imprisonment shall be deemed to run consecutively UNLESS the court orders that they run concurrently (NORTH ONLY)
S380 CPL: where magistrate court orders consecutive sentences, term of imprisonment must not exceed 4 years or the limit of the jurisdiction of the magistrate court, whichever is greater.
A CONCURRENT sentence is sentence imposed which is to be served at the same time as another sentence imposed in the proceedings. The sentences start running at the same time (i.e. serving 2 sentences at the same time)
A CONSECUTIVE sentence is sentence imposed which is to be served one after the other. Each sentence begins at the expiration of another. Serving a sentence at the end of another.Mandatory sentence: statute prescribes certain sentences for an offence. CT has no discretion
Minimum sentence: CT has discretion but cannot go below this sentence
Maximum sentence: cannot sentence above the number of years
DISCRETION OF THE COURT IN IMPOSITION OF SENTENCES
The prescribed sentence for any offence is the maximum sentence, which the law creating the offence prescribes.
However, in imposing sentences, a court has discretion to impose a sentence less than the prescribed punishment or a fine in lieu of a sentence of imprisonment.-
SLAP v. A G FED. CIRCUMSTANCES WHERE THE COURT LACKS DISCRETION IN IMPOSING SENTENCES
The discretion of the court to impose a sentence which is less than or different from the prescribed penalty is limited in three instances.
a. MANDATORY SENTENCES
The court cannot impose less than a penalty prescribed for an offence.
All capital offences are punishable with the death penalty.
Death penalty is the mandatory penalty for murder, culpable homicide punishable with death, treason, armed robbery. The death penalty is not permissive but mandatory for capital offences. Therefore a court does not have the discretion to impose any other penalty upon conviction for a capital offence.
Similarly, the mandatory penalty for attempted armed robbery is life imprisonment by virtue of S. 2(1) Robbery and Firearms (Special Provisions) Act, Balogun v. AG Ogun State NB- The penalty for armed robbery under S.402 CC is 21 years imprisonment (for other arms)-firearms-DEATH PENALTY-S.402(2). PENAL CODE is life imprisonment-s.298 Penal Code.
b. MINIMUM PENALITIES
Where the law, which creates an offence, prescribes a minimum penalty for offenders upon conviction, the Court can impose a higher penalty but cannot impose a penalty less than the minimum.
Also, where the minimum penalty is a term of imprisonment, the court cannot impose a fine in lieu of imprisonment. Ss. 23 (5) CPCL, 382 (5) CPL, DADA V. BOARD OF CUSTOMS &EXCISE c. PENALITIES WITHOUT OPTION OF A FINE
Where the law which creates an offence prescribes a penalty without option of a fine, upon conviction, the court does not have the discretion to impose a fine in lieu of the penalty.- DADA V. BOARD OF CUSTOMS EXCISE
However, where a law prescribes a penalty and is silent on the option of fine, the court has the discretion to impose a fine in lieu of the penalty.-
Ss. 23(1) CPCL,
382 (1) CPL
TYPES OF PENALTY
The death penalty is the prescribed punishment for persons convicted of capital offences and it is mandatory to impose same –
S. 367(1) & (2) and 368 of the CPL,
S. 273 of the CPCL,
S. 305 of the ACJL,
KALU VS. STATE
OKORO VS. STATE.
Offences such as murder /culpable homicide punishable with death, treason and armed robbery are punishable with the death sentence.-
Terrorism Act has not prescribed the death penalty for terrorism offences
Edo and Akwa Ibom States have prescribed the death penalty for kidnapping
MODE OF EXECUTION OF DEATH SENTENCE
The death sentence shall be by hanging- SECTIONS 367 CPL, 273 CPCL
However, in respect of armed robbery convicts, the death sentence shall be by firing squad: S. 1 (2) (a) (b) Robbery & Firearms (Special Provisions) Act 1985
DRESSING OF A JUDGE WHEN DELIVERING A DEATH SENTENCE
When pronouncing a sentence of death, the Judge is robe in red gown and black cap (barret).
FORM OF PRONOUNCEMENT OF DEATH SENTENCE-S.367(2) CPL
It is passed using the following words: The sentence of this Court on you is that you be hanged on the neck until you be dead and may the Lord have mercy on your soul.
S.273 CPCL-“when a person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead” EFFECT OF NON COMPLIANCE-
Failure of the Court to comply with the statutory wordings/ procedure for its imposition is not fatal-OLOWOFOYEKU VS. STATE(CPL).
Such omission is treated as an error which a Court of Appeal will direct the trial court to rectify - GANO v. THE STATE(CPCL) EXCEPTIONS WHERE DEATH SENTENCE CANNOT BE PASSED:
i) PREGNANT WOMEN convicted of capital offences are to be sentenced to life imprisonment in lieu of death.
S. 368(2) of the CPL, S. 270 of the CPCL, S. 306(2) of the ACJL and
S. 211 of the Child’s Rights Act
DETERMINATION OF PREGNANCY
The determination of pregnancy may be ordered by the court on its own volition or upon the allegation of the pregnant woman or the Prosecutor.
-SS. 376 (1) CPL,
271 (1) & 300 CPCL
The finding that a woman is not pregnant by the trial court is subject to appeal; the appellate court may set aside the finding, quash the sentence of death and substitute a sentence of life imprisonment.
The rationale behind this rule is for the protection of the unborn child.
NOTE-Section 221(2) of the Child Right Act, CAP50 LFN 2004 suggest a non – institutional sentence as an alternative measure to imprisonment instead of life imprisonment and that where institutional sentence is necessary such women should be committed and held or detained at a special mother centre
Section 221(3) & (4) Child Right Act.
ii. YOUNG PERSONS-14 years and below the age of 17 years (under the s368(3) CPL) or 18 years (under the s270, 272, 302(3) CPCL)-S.2 CYPL/CPL/CPCL are not to be sentenced to death but detained at the Governor’s pleasure.
The young person shall be detained in such a place and under such conditions as the President or Governor may direct.
The president or Governor may at any time during his detention discharge the young person on licence.
NOTE- The ACJL also has a similar provision in section 306 (3) but it applies to persons below 18years.
PREROGATIVE OF MERCY
A death sentence is not to be executed immediately it is passed. A sentence of death shall not be executed unless and until the President, Governor or the Specified appropriate authority has confirmed it.
See s175(2) CFRN, 212(2) CFRN
The Court must send a signed report to the Committee on Prerogative of mercy in the Ministry of Justice of the Federation/ State to decide if it is to execute it or not or that the punishment be reduced or pardoned-S.368(3)CPL; S.272(2) CPCL
The report must be accompanied by
A certified true copy of the record of proceedings at the trial;
The certificate of death sentence-section 371(1) of the CPL; section 294(1) of the CPCL.
The Minister or Commissioner (AG), as the case may be, shall consider the report made by the trial court in respect of the convicted person.
The report is referred to the committee responsible for exercising prerogative of mercy
The Attorney-General may recommend to the Governor or President after considering the report of the Advisory Council that –
The sentence should be commuted to imprisonment for life; or
The sentence should be commuted to any specific period; or
The convicted person should be otherwise pardoned or reprieved.
The death sentence will now be subject to confirmation by the president or Governor.
Where the convicted person is not pardoned or reprieved, the death sentence pronounced upon the convict must be carried into effect – section 371F of the CPL; section 298 of the CPCL.
NOTE- An application for prerogative of mercy shall not be made to the Supreme Court. OKEKE v THE STATE.
ADVISORY COUNCILS ON PREROGATIVE OF MERCY
There are Advisory Councils/committees on the Prerogative of Mercy in each of the States of the federation. They are part of the Ministry of justice.
In respect of federal offences, the National Council of States is the body responsible for exercising the Prerogative of Mercy.
The powers of the President are to be exercised by him after consultation with the Council of State, whilst the Governor’s power shall be exercised by him after consultation with the Advisory Council of the State on Prerogative of Mercy.
This may be with hard labour or not. See S. 377 of the CPL, S. 316 of the ACJL.
Where the court imposes imprisonment but is silent on whether it is with or without hard labour, it is deemed to be with hard labour.
The trial court may still sentence a convicted person who is already serving a term of imprisonment to another term of imprisonment.
The court may order that the sentence shall commence at the expiration of the previous term.
JURISDICTION OF THE HIGH COURTS TO IMPOSE TERMS OF IMPRISONMENT
The High Courts have unlimited jurisdiction to punish. They are only limited by the term of imprisonment prescribed by the law, which creates an offence.
JURISDICTION OF THE MAGISTRATE COURT TO IMPOSE TERMS OF IMPRISONMENT
Magistrates’ courts are limited to the punishment they can impose by the magistrates courts Law of the various states.
NB =-A Magistrate’s Court in the South cannot exceed the limit of its jurisdiction to impose punishment when it passes consecutive sentences.
* In the NORTH, a Magistrate’s court can exceed its jurisdiction to impose punishment but not by more than twice the limit when it passes consecutive sentences.
WHEN IS A SENTENCE OF IMPRISONMENT EFFECTIVE
A sentence of imprisonment takes effect from and includes the whole day of the date on which it was pronounced.-S. 281 CPL
Usually, maximum punishment is prescribed for terms of imprisonment but the Judge need not impose it all as it can be substituted with fine. Once there is power to impose a term of imprisonment, the Judge can impose fine in lieu of imprisonment. –
S. 382(1) of the CPL,
S. 320 of the ACJL and
DADA VS. CUSTOMS & EXCISE BOARD.
This is a monetary payment as punishment.
S. 389 of the CPL,
S. 74 of the Penal Code and
S. 322 of the ACJL..
Where the convict is unable to pay the fine, he may be ordered to be imprisoned – S. 390(1) CPL & 75 Penal Code.
Before the Court will impose this, the financial means of the offender when imposing fines is considered– S. 391 CPL; Goke v. IGP. SCALE OF FINES TO TERMS OF IMPRISONMENT
Both the High Courts and the Magistrates Courts have the discretion to order a fine where the law creating the offence prescribes only a term of imprisonment.
Where only the payment of a specific amount as a fine is prescribed, the courts upon conviction must order the payment of that fine.
RECOVERY OF FINE BY DISTRESS-
Ss. 398 CPL;
In levying distress, the court may order the sale of movable or immovable property belonging to the offender as well as attachment of any debts due to the offender.
Where the proceeds of the distress fails to cover the full value of the fine, the convicted person shall be liable to a term of imprisonment for the balance of the fine.
He is still liable to pay the fine even after the expiration of his term of imprisonment for the default.
Even after the death of the convicted person, his estate is still liable to pay the fine. S. 75 Penal Code
It can be imposed along with or in lieu of imprisonment. This has been abolished in Lagos State. In the South East, it is retained only for juvenile offenders.
EXECUTION OF A SENTENCE OF CANING
No sentence of caning shall be executed by instalments. The caning must commence and end at the same execution.
It shall be done with no more than a light rod and not exceed 12 strokes –
S.386 (2) CPL &
S. 308 (5) CPCL
This sentence of caning shall be carried out in the presence of an Administrative Officer or person prescribed by the Secretary to the Local Government –
Ss. 388 (1) CPL;
308 (2) CPCL
The execution of a sentence of caning is subject to the health condition of the offender.
STAY OF EXECUTION OF CONVICTION ON CANING
Where there is an appeal against conviction, the execution of the penalty of canning shall be stayed pending the determination of the appeal.
An appeal shall be filed WITHIN 15 DAYS from the date of sentence.
PERSONS WHO SHALL NOT BE SUBJECT TO CANING
The sentence shall not be passed on a woman –
S. 385 CPL &
S. 308 (4) CPCL
It shall not be passed on a man 45 years and above –
S.385 CPL & S. 308 (4) (c) CPCL. But note an amendment states that for CPCL cannot be passed for men above 40 years
It shall not be passed on a man under sentence of death – S.308 (4) (b) CPCL.
It is to be administered with a light rod or cane and not more than 12 strokes to be given.
This is passed only on Muslim offenders in the North for offences like adultery, defamation, injurious falsehood and drinking of alcohol.
The aim of the punishment is to inflict disgrace/shame and not to cause physical pain or injury. – S. 307 of the CPCL,
S. 68(2) of the Penal Code and the Criminal Procedure (Haddi Lashing) Order in Council 1960.
NB-Women are not spared.
EXCEPTION- the health of the person and season of the year
THE DIFFERENCE BETWEEN THE PUNISHMENT OF CANNING AND HADDI LASHING
Caning is provided for both in the North and South, that is, it is contained in the CPL and CPCL except as abolished in Lagos while Haddi Lashing is contained only in the CPCL and applicable only in the North.
Canning is enforceable against all classes of persons irrespective of their religion while Haddi Lashing is enforceable only against Muslims in the North. Section 307 (2) CPCL.
Canning is not prescribed for any specific offence but the court may consider the prevalence of the crime within its jurisdiction or the antecedents of the offender (Section 387 CPL) while Haddi Lashing is prescribed for specific offences in the Penal Code, for example, adultery, defamation or injurious falsehood and drinking alcohol. Section 307 CPCL.
Canning is enforceable only against persons who are liable to imprisonment for a period of 6 months or more. On the other hand, there is no such provision for Haddi Lashing.
Haddi Lashing –unlike canning – is meant to inflict disgrace, not physical pain nor injury.
Deportation (only Aliens can be deported) see
S. 402-403 of the CPL and
S. 337 of the ACJL.
(SHUAGBA V. MIN OF INTERNAL AFFAIRS)
Compensation and restitution of stolen property to the individual whose property was stolen. See
S. 270 of the CPL,
S. 365 of the CPCL.
Binding over to be of good behaviour.
S. 300&309 of the CPL and
S. 24 of the CPCL
Police supervision order where the convict is ordered to report at a designated Police Station regularly.
S. 3 of the Prevention of Crime Act 1958.
Probation order releasing a convict e.g. a juvenile under supervision of a Probation officer.
S. 436 of the CPL.
Order to pay the cost of the prosecution (private prosecutors).
S. 255 of the CPL and
S. 365 of the CPCL.
Forfeiture- S.68(1) b Penal code-applicable in cases involving property and official corruption – forfeiture is to the state
Conditional discharge-S.433 CPL e.g. discharged on condition that he be of good behaviour for a certain period of time
Detention in a reformatory/rehabilitation centre (applies to juveniles)
Community service – only in ACJL e.g. sweeping a particular public building for a period of time
NB: Restorative justice of Reconciliation, Restitution, Reintegration and Restoration is encouraged rather than retributive justice as contained mainly in Nigeria’s Laws.
Issues with judgment in Appendix 3
Out of time: s294(1) CFRN: judgment delivered after 90 days because of the stroke the judge suffered and it affected his memory. The number of witnesses called (45 by first accused and prosecution called 25) – not possible to remember all the witnesses
Judge did not properly evaluate evidence in reaching the conclusion. He was more interested in superficial matters (number of witnesses and not their credibility)
Absence of the victim for 6 months, not sufficient to prove death
Sentence of accused by firing squad instead of hanging
Prosecution failed to prove murder but judge still decided to convict 2nd accused person because he did not testify after no case submission was overruled
Doctrine of res ipsa loquitor was not properly applied
Court did not state proper notes on evidence or write down judgment
Ailment of the judge affected his ability to appreciate evidence previously given
The judge was biased by introducing religious matters into the trial
Judge based on his judgment on offences not proved (conspiracy) i.e. cannot convict on conspiracy when the particular offence was not proved.
Possible to be convicted on one credible witness or discharged due to one witness (so the number of witnesses is not relevant but the weight of the evidence
Suggesting guilt of accused based on silence was not proper (181 EA 2011). Cannot base judgment on the mere silence of the accused
First accused was convicted of conspiracy but not sentenced
Second accused was sentenced but not convicted
Whole trial is a nullity because case is in the North and accused was charged with murder (an offence not known to law). He should have been trialled for culpable homicide not punishable with death.
Not sure about the sanity of the judge
Judge did not write, sign or date judgment
Did not state the points for determination
Nor did he state his opinion on each point for determination
Stating incorrect points of law e.g. 6 months is not reasonable time to presume someone dead (EA 2011 is 7 years); also issue with his understanding of res ipsa loquitor
Even the addition of caning as punishment is absurd and bizarre
WEEK 18- APPEALS
MEANING-Appeal is the process of seeking to reverse the decision of the trial/lower Court on the basis of facts, Law or mixed Law and facts.
TYPES OF APPEALS
APPEALS AGAINST FINAL DECISION an appeal against the final decision of a court is an appeal against the judgment of the court.
INTERLOCUTORY APPEALS-- An appeal against an interim order of a court is an interlocutory appeal.- The court must rule on such applications or objections.
CONDITION PRECEDENT FOR BRINGING APPEALS IN CRIMINAL TRIALS
Before a person can file an appeal, he must have a Right of Appeal.
An appeal may be as of right or only with the leave of the court
Ss. 241 & 242 CFRN
Right of appeal must expressly be stated in a statute: THE STATE V. ADIO
A superior court has an automatic inherent jurisdiction to preside over appeals from a Lower court.
It can only hear an appeal if a statute confers such jurisdiction on it. NUNKU V. IGP
CONDITIONS PRECEDENT FOR FILING OF APPEALS IN CRIMINAL TRIALS
Filing of Notice of appeal,
Payment of required fees,
Provision of recognisance and security for diligent prosecution of the appeal