Week 3 &4 Sources of Criminal Procedure Laws

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PARTIES TO AN APPEAL

The right of appeal is exercisable only by either the Prosecutor or the accused.

NB(EXAMS)- A PARTY INTERESTED or THE VICTIM does not have the right to appeal in Criminal cases.


See S. 243(a) of the CFRN 1999 (as amended) and AKINBIYI V. ADELABU.

OTHER INTERLOCUTORY PROCEEDINGS SIMILAR TO APPEALS
A-CASE STATED S. 295 CFRN 1999 as amended


  • This is a procedure whereby in a criminal proceeding, a question of law which depends on the interpretation or application of the Constitution is referred to a higher court for an opinion.


WHEN CAN A CASE BE STATED?

  • For cases pending before the State High Courts, Federal High Courts and the Court of Appeal, a case can only be stated in the course of criminal proceedings in that case.

  • For cases tried by Magistrates’ Courts, the court may state a case any time before judgment or after judgment only upon the application of the Attorney – General.

a. in respect of a case in which no public officer is a party; and

b. within 6 months from the date the judgment was delivered.



WHO CAN INITIATE “CASE STATED”

A case may be stated at the instance of the following:

i. The Attorney – General

ii. The accused persons and

iii. The Court on its own volition.

S. 295 CFRN;

R v. EZE
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 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
CONDITIONS PRECEDENT FOR CASE STATED

The conditions precedents for a case to be stated are laid down by the Supreme Court in FEDERAL REPUBLIC OF NIGERIA v. IFEGWU as follows:


i. The question must be as to the interpretation or application of the constitution.

ii. The question must arise in the proceedings in connection with an issue before the court making the reference.

iii. The matter for reference must involve a substantial question of law.

iv. 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 CASE STATED

A case stated must contain the following information:

a. The charge, summons, information or complaint.

b. The facts found by the Magistrate/Judge to be admitted or proved.

c. Any submission of law made by or on behalf of the complainant during the trial or inquiry.

d. Any submission of law made by or on behalf of the accused during the trial or inquiry.

e. The finding of an in case of conviction, the sentence imposed by the court.

f. Any question of law which the Magistrate desires to be submitted for the opinion of the High Court and

g. Any question of law which the Attorney General requires to be submitted for the opinion of the High Court.
2. PREROGATIVE WRITS

These are writs issued by the Courts, in the course of proceeding when there is a direct interference with the rights or property of an accused person.

They are not issued as of right.

The accused person must show that his personal liberty or property rights have been violated by the proceedings or order of a court.


This application may be made in the course of proceedings or after the judgment of the court-

STATE V. FALADE & ORS.



  1. HABEAS CORPUS

  • Habeas Corpus means You have the body.

  • The purpose of this writ is to order the release from custody or to procure the attendance to court of a person who is unlawfully detained.


NOTE-Where a person is in lawful custody such as a person detained on the orders of a competent court or upon sentence of imprisonment, the writ of habeas corpus will not avail him

Gwaram v. Superintendent of Prisons;
b. PROHIBITION

  • This is a writ of common law origin.

  • It is used by the High Court in its supervisory role over magistrates’ courts and other tribunals.

By this writ, a superior court prohibits a lower court from conducting proceedings which are either not within its jurisdiction.


NOTE-Thus, this order cannot be obtained from a court of coordinate jurisdiction.-

The State v. Chief Magistrate Aboh – Mbaise Exparte Onukwe.
c. mandamus

  • This is the opposite of writ of prohibition.

  • It was originally used to check abuses of judicial powers.

  • It was usually issued by a Superior Court to confine on inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.- Will v. United States

  • An order of mandamus may now be issued to compel a court, a judicial or administrative officer to perform an act, which is its or their public, official or ministerial duty.-- Fawehinmi v. Akilu & Anor, it was held that the order of mandamus could be issued to compel the AG Lagos to issue a fiat a private prosecutor to prosecute the accused persons.



  1. CERTIORARI

  • A writ from a common law origin used also by the High Court in the exercise of its supervisory function over magistrates’ courts.

  • By this writ a High Court may quash the proceedings order of a lower court where the lower court has acted without jurisdiction or there is irregularity in its proceedings.

NOTE-The writ of certiorari cannot be issued to question or quash a legislative or executive act because they are nothing nature acts which are required to be done judicially. In THE STATE V. FALADE & ORSthe High Court issued a writ of certiorari to quash the conviction of the accused persons because the trial magistrate convicted then without hearing their defence.
CONSTITUTION OF COURTS OF APPEAL

  • Where hearing appeals from Magistrates’ courts, the High Court shall be properly constituted by at least one judge.

  • However, in the North, two judges usually constitute the High Court when the court hears appeals on criminal matters.-S. 273 CFRN 1999.

  • When hearing appeals from the State High Court or Fed. High Court the court of Appeal shall be constituted by not less than 3 Justice of the Court of Appeal.-S. 273 CFRN 1999.

  • On appeals from Court of Appeal to the Supreme Court not less than 5 Justices of the Supreme Court properly constitute the Court.(SC -7 justices-OIC)-PROVISO to S. 234 CFRN.

NOTE-There is no right of appeal against a decision of the Supreme Court.

PROCEDURE FOR APPEALS IN CRIMINAL TRIALS

The Trial Court from where the appeal arises and the nature of the appeal will determine the proper procedure to make the appeal competent.

A-APPEALS FROM THE MAGISTRATE COURTS TO THE HIGH COURTS

S.279(1)-282 C.P.C.;

S.28 High Court Laws of Lagos State.


PROCEDURE


  • A party willing to appeal against the judgment of a Magistrates’ court must file a notice of appeal.

  • The Notice of appeal must be given to the Registrar of the Magistrates’ Court within 30 days from the date of the decision appealed against.

  • Leave of the Magistrates’ court is required to file the notice after the lapse of 30 days.

  • After the conditions of appeal have been satisfied the Registrar of the Magistrates’ Court shall prepare and forward the Record of proceedings and other documents to the Registrar of the High Court.

  • The registrar of the High Court shall serve hearing notices on all parties to the appeal.

  • At the hearing, Counsel for the appellant will argue only the grounds stated in his Notice of appeal after which the Counsel for the Respondent shall reply.

NOTE -where the Court is of the view that there is no sufficient ground to interfere with the decision of the lower Court, it will simply dismiss the appeal without calling for the Respondent’s reply.

FORM OF A NOTICE OF APPEAL

The Notice of appeal must be on the prescribed Form and signed by the appellant or his Counsel.

Notice of appeal may be given in writing or orally at the time the Judgment is pronounced. S.280 C.P.C.

However, where an oral notice is given in the presence of the other party, a written notice will no longer be required.


WHEN IS THE NOTICE OF APPEAL DEEMED FILED

An Appellant in custody can give his Notice of Appeal to the officer in charge of the Prison and the day he did so is deemed the date of filing. - EWELIKWU VS. STATE.



TIME LIMIT WITHIN WHICH AN APPEAL CAN BE FILED

The time within which to appeal is 30 days of the delivery of the judgment for Final judgments



14 days for interlocutory decisions OR 15 days on a sentence of canning. – S. 281of the CPCL, S. 68 of the Magistrate Court Law of Lagos 2009.
CONTENTS OF A NOTICE OF APPEAL

In Lagos State the information required in the Form 1 are as follows:



  1. District of the Magistrate;

  2. The Cause Number;

  3. Title or Parties;

  4. The Registrar of the Appellate Court (Address);

  5. Date of giving the Notice;

  6. The offence of which the accused was convicted;

  7. Date of conviction or order;

  8. Sentence;

  9. Date of Sentence;

  10. Prison where the Appellant is;

  11. Appellant’s address for service in Lagos State;

  12. Counsel representing the Appellant if any and his address for service;

  13. Grounds of appeal; and

  14. Signature or Mark of the Appellant. See Order 3 (Part 1) R.2 HCL Appeal Rules 1994.

PRESENTATION OF APPEAL CASES FROM MAGISTRATE’S COURT TO HIGH COURT

  • The presentation of cases here is by oral arguments.

  • The Appellant argues his case first confining himself to the grounds of appeal.
  • The respondent may reply only to the grounds argued by the Appellant.


  • After Respondent reply, the Appellant may respond to any points made in the Respondent’s Reply


GROUNDS OF APPEAL

A-The Prosecutor

A Prosecutor may appeal on the ground that the acquittal or discharge of the accused is erroneous in Law or that the proceedings or any part thereof is in excess of the jurisdiction of the Magistrate.



S. 57(a) M.C.L. 2009;

S. 279(2) C.P.C.

In Lagos, a Prosecutor may appeal against a Sentence that is below the minimum term prescribed by Law or failure to make an order prescribed by Law.



THE ACCUSED

The accused may appeal on the following grounds:



  1. That the lower Court had no jurisdiction in the case;

  2. That the lower Court exceeded its jurisdiction;

  3. That the decision had been obtained by fraud;

  4. That the case has been heard or tried and decided by or forms part of the subject of a hearing or trial pending before a competent Court; or

  5. That admissible evidence has been rejected or inadmissible evidence has been admitted and that there is no sufficient evidence to sustain the conviction after rejecting the inadmissible evidence; or

  6. That the decision is unreasonable and cannot be supported having regard to the evidence; or

  7. That the decision is erroneous on points of Law; or

  8. That other specific illegalities that substantially affect the merit of the case have been committed in the course of the proceedings; or

  9. That the sentence passed on conviction is excessive. See S.282(2) C.P.C.; Or.2, (Part 1) R.9 HCL (Appeal) Rules.

In Lagos, the following additional grounds are present:

    1. That the Magistrate was personally interested in the case; or


    2. That the Magistrate acted corruptly or maliciously in the case. Or.2 Pt.1, R. 9(1) HCL (Appeal) Rules. –

S. 279(2) & 282(2) of the CPCL and

S. 69 of the Magistrate Court Law of Lagos 2009.

Note: an appellant may apply for leave to file additional grounds or to amend defective grounds of appeal. Esoh V. Police; Okonkwo V. I.G.P.



OMNIBUS GROUND OF APPEAL

The omnibus ground of appeal couched as” The decision of the trial judge is unreasonable and cannot be supported having regard to the evidence” is not a valid ground of appeal in criminal trials.-ENITAN Vs. STATE.



CAN A CONVICT WHO PLEADED GUILTY HAVE A RIGHT OF APPEAL?

Yes. A convict who pleaded guilty to the offence can still appeal against his conviction especially where the procedure of the Prosecution calling expert evidence in prove of the offence as required by Law was not complied with. -ESSIEN VS. KING and STEVENSON VS. POLICE



ADMISSIBILITY OF ADDITIONAL EVIDENCE ON APPEAL

Generally, new evidence is not admissible on appeal because of the following reasons:



  1. To put an end to litigation

  2. A successful party should not be deprived of the benefits unless on material grounds;

  3. A party who obtained judgment should not face a new case because of the appellant’s failure to diligently prosecute the case-ESANGBEDO VS. STATE

The CONDITIONS/EXCEPTIONS for the admission of additional evidence on appeal are as follows:



  1. If it is in the interest of justice
  2. The evidence was not available at the trial or could not have been adduced at trial.


ARIRAN VS. ADEPOJU

3. The evidence sought to be adduced on appeal must be apparently credible though not incontrovertible-ARIOLA & ORS v. C.O.P.

4.Exceptional circumstances arise which will not lead to the rehearing of the case.


  • The Appellate Court may admit the evidence OR

  • Refer it to the trial Court/Lower Court to take the evidence and adjudicate on it in the light of the evidence and report its findings on such evidence to the High Court.-

S. 45 & 55 of the High Court Law of Lagos State.
POSSIBLE ORDERS THE STATE HIGH COURT WILL MAKE UPON HEARING AN APPEAL.

A-Appeal Against Sentence only

Where appeal is against only the sentence imposed by the Magistrates’ Court, the High Court in its appellate jurisdiction may



  1. Affirm the Sentence

  2. Substitute any other sentence which may be more or less severe than the former sentence or different in nature. Section 39 (b) High Court Law, Lagos, 2004


B-Appeal against conviction or Conviction and sentence, the Court may

  1. Affirm the conviction or conviction and sentence

  2. Quash the conviction or conviction and sentence in which case the court may either acquit or discharge the convicted person or order a retrial by the same Court or another Court of competent jurisdiction

  3. Maintain the sentence but alter the findings upon which the trial Court reached a conviction
  4. Maintain the finding but reduce or increase the sentence, in which case the High Court CANNOT; increase /reduce the sentence beyond the maximum penalty prescribed by the law, which created the offence which the trial Magistrate has jurisdiction to impose. Nworie v COP, Nwobu & Anor v COP



C-Appeal against an Order of Acquittal or Discharge, the High Court may

  1. Maintain the acquittal or discharge

  2. Remit the case and the judgment of the High Court on the order of the acquittal or discharge to the Magistrates’ Court for determination, whether by rehearing or not, if the High Court is of the opinion that the order of the acquittal or discharge made by the Magistrates Court should not have been made,

  3. Give such other directions as the Court thinks necessary. Section 39 (c) High Court Law, Lagos


Appeal that a Magistrate’s Court failed to impose a minimum sentence or make an Order prescribed by a Written Law, the High Court may;

  1. Suspend the sentence or order made by the Magistrate Court

  2. Substitute, impose or make a sentence or order prescribed by the Written Law.

Section 39 (d) High Court Law, Lagos
Appeal from any other Order made by Magistrate’s Court, the High Court may;

  1. Maintain the order made by the Magistrate’s Court

  2. Change the order made by the Magistrate’s Court

  3. Reverse the order made by the Magistrate’s Court. Section 39 (e) High Court Law, Lagos.


B.APPEALS FROM THE HIGH COURTS /FEDERAL HIGH COURTS TO THE COURT OF APPEAL.

The procedure to be followed will be determined depending on whether the appeal is as of right or needs the leave of Court or it is a double appeal or an interlocutory appeal. S.240 CFRN


CIRCUMSTANCES WHEN APPEAL IS OF RIGHT

Instances where the right to appeal is as of right from a decision of the High Court/Federal High Court are as follows:


    1. Final decisions of the High Court/ Federal High Court sitting at first instance

    2. Where the grounds of appeal involves questions of Law alone

    3. Decision on questions as to the interpretation of the Constitution

    4. Decisions on questions as to whether any of the provisions of Chapter IV of the

Constitution has been contravened

    1. Decisions in which the High Court/Federal High Court imposed a sentence of death

    2. Where the liberty of a person or custody of an infant is concerned.-See S. 241(1) of the 1999 Constitution as amended.

CIRCUMSTANCES WHEN AN APPEAL MUST BE WITH LEAVE OF COURT

Appeals which must be with the leave of Court are as follows:



      1. Appeals from a decision made with the consent of the parties

      2. Appeals from decisions as to cost only - S. 241(2) (c) of the 1999 Constitution as amended.

      3. DOUBLE APPEAL (which is an appeal coming from the Magistrate Court to the High Court and a further appeal to the Court of Appeal, not being an appeal against the decision of the High Court/ Federal High Court sitting on first instance).

This must be with the leave of Court - S. 241(1) (a) of the 1999 Constitution as amended.

      1. an interlocutory decision appealed against on grounds of facts or mixed Law and facts.

PROCEDURE OF APPEAL TO THE COURT OF APPEAL
        1. The appellant must file his notice of appeal in the prescribed Criminal Form 1. See 2nd Schedule to the Court of Appeal Rules 2007; Or.16 R. 3(1) C.A.R.




  • The Notice or application for leave to appeal must be filed in the High Court Registry within 90 days of the decision appealed against.




        1. Where an appeal is with leave, the appellant is allowed a further period of 14 days from the date of the determination of his application for leave to bring another application for leave to the Court of Appeal(Criminal Form 2).-Kema V. The State.

The grant of the application is deemed to be the notice of appeal.

Order 17 rule 6 court of Appeal rules 2011

        1. The Appellant is to satisfy other conditions for the prosecution of the appeal and pay filling fees EXCEPT for an appellant convicted of a capital offence or appellants represented by the Legal Aid Council.

-O. 17 R. 8 of the Court of Appeal Rules 2011

        1. The notice of appeal must be signed by the appellant or his counsel and shall be given to the Registrar of the Fed. Or State High Court which pronounced the decision.



        1. The Registrar of the High Court shall compile the record of appeal and forward same to the registrar of the Court of Appeal.



        1. Parties to the proceedings are also served with the Record of Appeal.
        2. Upon receipt of the Record, parties are required to file their respective Briefs of argument beginning with the Appellant.




        1. After the exchange of Briefs or on the expiration of the period allowed for the filing of Briefs, hearing notice will be served on the parties by the registrar of the Court of Appeal.



        1. On the hearing date, parties may present oral arguments to emphasise and clarify the issues raised in their Briefs.

Or. 17 R. 9(1) CAR;

Kim V. State

        1. A party who, having been served with a hearing notice, fails to present an oral argument will be deemed to have duly argued his appeal.-Or.17 R.9(4) CAR.



        1. Forty minutes is allowed on each side for the presentation of oral argument unless it is otherwise directed. Or.17 R.9(3). CAR.

TIME FOR FILING NOTICE OF APPEAL

COMPUTATION OF TIME

The time within which to file the Notice of Appeal starts counting when the Appellant has notice of the decision(judgment) convicting him. -OHUKA VS. STATE


TIME FOR FILING BRIEF OF ARGUMENT

a. Appellant’s brief of argument must be filed within 45 days of the receipt of the record of appeal from the FHC/SHC.Or.17 R.2 CAR.

b. Respondent’s Brief must be filed within 30 days of service of the Appellant’s Brief on him. Or.17 R. 4(1) CAR.

c. Appellant’s Reply, if any, must be filed within 14 days of the receipt of the Respondent’s Brief of argument. Or.17 R.5 CAR.

NB-The Appellant’s Reply shall deal with all new points arising from the Respondent’s Brief of argument. Or. 17 R. 5 CAR.

The number of copies to be filed by a party is 20 copies each.





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