Week 3 &4 Sources of Criminal Procedure Laws

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Section 251(1) provides that the Federal High Court shall have and exercise jurisdiction to the exclusion of any other courts in civil causes and matters:
Any matter or cause arising from or pertaining to:


    1. The revenue of the Government of the Federation.

    2. Taxation of persons subject to Federal taxation.

    3. Customs and Excuse matters.

    4. Causes and matters connected with or pertaining to banking, banks, other financial institutions, including any action between one bank and another, any action by or against the CBN arising from banking, foreign exchange, coinage, legal tender, letters of credit etc. Provided that this paragraph shall not apply to any dispute between an individual customer and his bank in respect of transactions between them.

    5. The operation of the Companies and Allied Matters Act (CAMA).

    6. Copyrights, patents, designs, trademarks and allied matters.

    7. Admiralty matters.

    8. Diplomatic, consular and trade representation.

    9. Citizenship.

    10. Banking and insolvency

    11. Aviation and safety of aircraft.

    12. Arms, ammunitions and explosives.

    13. Drugs and poisons.

    14. Mines and minerals.

    15. Weights and Measures.

    16. Administration and Management of the Federal Government or any of its agencies.

    17. The operation and interpretation of the Constitution as it affects the Federal Government or any of its agencies.

    18. The validity of Executive and administrative action by the Federal Government or any of its agencies.

    19. Such other matters in respect of which the National Assembly may confer jurisdiction on the Federal High Court.

By virtue of the provisions of Section 251(3) of the 1999 Constitution, any criminal cause or matter that arises from any of the subjects listed above falls within the exclusive criminal jurisdiction of the Federal High Court. The Rules of Practice and Procedure (Adjectival Law) which regulates proceedings at the Federal High Court nationwide are the Criminal Procedure Act, Laws of the Federation of Nigeria (LFN), 2004.

Territorial Jurisdiction of the Federal High Court and the States High Courts


  1. FHC: There is only one FHC in Nigeria; others are the administrative Judicial Divisions. It has a National jurisdiction. See ABIOLA V. FRN, S. 19(1) of the FHC Act.




  1. State HC: See S. 4 of the Penal Code and S. 12 (a) of the Criminal Code for the territorial jurisdiction of the High Court as follows:

  1. Offences completed in a State are triable by the State alone

  2. If an offence began in one State and was completed in State B, both States High Courts have jurisdiction over the offence. See HARUNA V. THE STATE and NJOVENS V. THE STATE

  3. S. 12 (a) of the Criminal Code made it possible for a State that arrested an offender who ran away from the State of committing the offence to try him provided the offence is punishable in the State.


Sittings of the Courts

The Courts sit on juridical days, that is, from Mondays to Fridays but except public holidays otherwise the proceedings are null and void. Exception where it will be valid is when the parties consented or request for a sitting outside the juridical days. See OSOSANMI V. COP


JUVENILE COURTS

Juvenile courts are established pursuant to the Children and Young Persons Laws of the various States of the Federation. Young persons are persons who are less than 18 years of age when they committed the alleged offence. In terms of criminal responsibility:


  1. Children below the age of 7 years are not criminally responsible for their act or omissions, which constitute the crime.


  2. Children between the ages of 7 and 12 will only be held criminally responsible if it is established that they know that their act or omissions are wrong in law.

  3. Children between the age of 13 and 18 are criminally responsible for their act or omissions.

    • Children fall between 1 to 14 years.

    • Young persons fall between 14 to 18 years.


In State v. Nwabueze (1980): the accused person caused the death of the deceased in the course of a fight. The accused was less than 12 years old. He was charged with murder. However, evidence adduced at the trial did not establish that the accused person knew that his act, which resulted in the death of the deceased, was wrong in law. The court discharged and acquitted the accused person.
Juvenile courts have jurisdiction over all cases involving children or young persons except in the following circumstances:

  1. Section 8(2) of the CYPL provides that where a child or young person is charged with an offence, which is punishable by the death penalty, his trial shall be by a regular court.

  2. Section 6(2) of the CYPL also provides that where a juvenile is jointly charged with an adult, the trial shall be by a regular court.

However in respect of offences that are punishable with death penalty, a juvenile court can conduct preliminary inquiry but cannot proceed to full trial if a prima facie case is established.


DETERMINATION OF AGE

Where the age of an accused person is essential for the purpose of conviction or is relevant in the determination of the nature of sentence to be passed on the accused person, a trial court is bound to conduct an inquiry as to the true age of an accused person.

In order to determine the age of an accused person, the court may:


  1. Accept direct evidence of the age of an accused person such as birth certificate.

  2. Accept oral evidence as to the age of the accused person by the parents or relations.

  3. Order medical examination by a Medical Practitioner in a Government medical institution.

Medical examination is usually ordered where the court disbelieves the oral evidence of parents or relations or where there is conflicting evidence of the age of the accused person.


In the case of R. v. Oladimeji (1964), the accused person was charged for murder. At his trial, his father testified that he was less than 17 years old when he committed the alleged offence. He was convicted. On appeal against the conviction, the court appointed a Medical Commission to inquire into the accused person’s age. At the Commission, the parents maintained that the boy was 16 years when he allegedly committed the offence. However, the medical doctor who examined the boy 18 months after the offence was committed put his age at 25. The Supreme Court held that the doctor’s testimony was admissible and was rightly acted upon by the Commission.
Note that where there is clear evidence before the court as to the age of the accused person, the need to determine the age of the accused person no longer arises. See Guobadia v. The State (2004) 6 NWLR (PT. 869) at page 360.
FEATURES OF A JUVENILE COURT

Section 6(5) of the CYPL (Lagos State) provides that Juvenile Courts are not open to members of the public. The only persons allowed in Juvenile Courts are:


  1. Parents and relations of juvenile, Counsel, Legal Practitioners and accredited members of the Press.

  2. Section 6(6) of the CYPL prohibits the publication or disclosure of the identity of the juvenile at the trial except with the leave of the court. To publish the identity of the juvenile is an offence punishable by N100 fine.

  3. At Juvenile Courts, regular court terms such as “sentenced”, “guilty”, “convicted”, “accused” et cetera are not used. Use offender instaed

  4. Section 12 of the CYPL provides that a juvenile cannot be sentenced to a term of imprisonment once he can be suitably dealt with by any other punishment or committed to a remand home.

  5. Even where a juvenile is in prison, he cannot be mixed with adult prisoners. This is in order to protect him from further corruption.

  6. Section 368(3) of the CPL and Section 272 of the CPCL both provide that any person who had not attained the age of 17 years at the time the offence was allegedly committed cannot be sentenced to death. In Modupe v. The State (1988), the Supreme Court held that if the evidence before the court establishes that a juvenile was guilty of a capital offence, it would be wrong for any court not only to sentence him to death but also to even pronounce such a sentence. Note, however, that where such a juvenile is convicted of a capital offence instead of a death sentence, a sentence of life imprisonment would be imposed.
  7. Any juvenile who is found to have committed a capital offence shall be held in lawful custody pending the pleasure of the Governor. This was the decision of the Supreme Court in GUOBADIA V. THE STATE (SUPRA).



COURTS MARTIAL

The Armed Forces Act CAP A20 LFN 1993 (as amended) consolidated the Nigerian Army Act, the Nigerian Navy Act and the Nigerian Air Force Act.
Section 129 of the Armed Forces Act, 1993 creates two types of courts martial. They are:

  1. The General Courts Martial and

  2. The Special Courts Martial.




  1. THE GENERAL COURTS MARTIAL

See Section 129, paragraph A of the Armed Forces Act (AFA). This court martial shall consist of:

  1. The President.

  2. Not less than 4 members.

  3. A waiting member.

  4. A Liaison Officer and

  5. A Judge Advocate.




  1. THE SPECIAL COURTS MARTIAL

See Section 129; paragraph B of the Armed Forces Act. This Court shall be constituted by the following members:

  1. The President.

  2. Not less than 2 members.

  3. A waiting member.

  4. A Liaison Officer, and

  5. A Judge Advocate.

A Judge Advocate must be a commissioned officer that has been qualified to practice Law in Nigeria for at least 3 years. If there is no such person available, the Director of Legal Services of the particular service of the Armed Forces shall, upon the request of the convening officer, nominate a judge advocate for the court martial. The duty of the Judge Advocate is to guide and advise the Court Martial on the Rules of Evidence and Practice and Procedure. He does not have a vote in the decision of the court martial. Again, the Rules of Practice and Procedure that is applicable to Courts Martial are the CPL.

A person may not be appointed a member of a Court Martial unless he is subject to Service Law and has been an officer for a period of not less than 5 years. A waiting member is a spare tyre. He is a member who is there waiting in case a regular member is ill or unavoidably absent.
The President of a Court Martial shall not be under the rank of a Major or a similar rank in any of the other services. Where it is not possible to have a Major as a President of a Court Martial, a Captain or the corresponding rank in any of the services may be appointed.
An officer of any of the services cannot be tried by a Court Martial whose membership includes an officer of a rank lower than his. In Okoro v. Nigerian Army Council (2000), a Court Martial constituted by members who included two captains tried and convicted a Major. The Court of Appeal held that by virtue of Section 133 of the Armed Forces Act, an officer cannot be tried by a Court Martial constituted by officers of a lower rank.
In order for a Court Martial to come to a decision (judgment), it only requires the attendance and votes of the President and other members. Waiting member, Judge Advocate and Liaison officers do not have a vote. Therefore, a Court Martial can come to a valid judgment in their absence. See Obisi v. Chief of Naval Staff (2004).
WHO MAY CONVENE A COURT MARTIAL

Section 131 of the Armed Forces Act (AFA) provides that only an appropriate superior authority can convene a Court Martial. For the General Court Martial, any of the following are appropriate superior authorities:

  1. The President.


  2. Chief of Defence Staff.

  3. The Service Chiefs.

  4. A General Officer Commanding or a corresponding command.

  5. A Brigade Commander or corresponding Command.

For the Special Courts Martial, appropriate superior authority means any person who has authority to convene a General Courts Martial as listed above, that is:



  1. The President.

  2. Chief of Defence Staff.

  3. The Service Chiefs.

  4. A General Officer Commanding or a corresponding command.

  5. A Brigade Commander or corresponding Command.


In special circumstances the senior officer of a detached unit may be authorised by the appropriate superior authority to convene a Court Martial. See Nigerian Air Force v. Obiosa (2003) 4 NWLR (PT. 810) 233.
DELEGATION OF THE AUTHORITY TO CONVENE A COURT MARTIAL

Contrary to the earlier Supreme CT decision in Nigerian Air Force v. Shekete (2002), the Supreme Court in Nigerian Air Force v. Obiosa (SUPRA) held that the authority to convene a Court Martial, General or Special, may be delegated by appropriate superior authority. In order to do this, the authority given to the delegate must be in writing and must be signed by the appropriate superior authority.
JURISDICTION OVER PERSONS

Section 130 of the Armed Forces Act gives the Court Martial jurisdiction over persons who are subject to Service Law, that is, Members of the Army, Navy and the Air Force. It does not include officers of the Police Force, NDLEA, Customs and Immigration and NAFDAC. Note, however, that a General Court Martial cannot impose a sentence of death unless it consists of at least 7 members. A Special Court Martial has the same powers as a General Court Martial but where it is constituted by only two members, it cannot impose a sentence of death or a sentence of imprisonment which exceeds one year.

JURISDICTION OVER OFFENCES

Sections 45 to 114 of the Armed Forces Act contain the list of offences which can be tried by a Court Martial. The offences triable by a Court Martial are:


    1. Aiding the enemy.

    2. Cowardly behaviour.

    3. Mutiny.

    4. Insubordination.

    5. Absence from duty.

    6. Malingering and drunkenness.

    7. Navigation and flying offences.

    8. Sodomy.

    9. Sexual relationship with the spouse of a Service personnel.

    10. Rape and canal knowledge.

    11. Irregular arrests and confinement.

    12. Disgraceful conduct.

    13. Misconduct in action, etc.

The Civil offences triable by a Court Martial are the regular criminal offences in the civil society such as assault, manslaughter, robbery, extortion etc. If a serving officer is tried by a Court Martial for a civil offence, the officer can still be tried for the same offence by the regular courts. However, in imposing sentence, the regular court shall take into consideration the sentence already passed by the Court Martial. On the contrary, if a regular court tries a person who is subject to service law for a civil offence, the Court Martial can no longer try the officer for the same offence. The decision or verdict of a Court Martial is arrived at by a simple majority of the members of the Court. Note that the Judge Advocate, the waiting member and the liaison officer do not have the right to vote.

In the case of equality of votes, that is, where there is tie, the accused persons shall be acquitted. Any death sentence passed by a Court Martial cannot be executed except with the approval of the President and Commander-in-Chief of the Armed Forces. Any other sentence of a Court Martial are subject to confirmation by the appropriate superior authority who convened the Court Martial.

APPEALS

Previously, appeals against the decision of a Court Martial went to the Armed Forces Appeal Disciplinary Committee but presently any person who is aggrieved by the decision of a Court Martial can appeal to the Court of Appeal. Nigeria Air Force v Shekete (supra)
TIME LIMIT FOR TRIAL UNDER THE ARMED FORCES ACT

Section 169(2) of the Armed Forces Act provides that if a retired officer of any of the Armed Forces is not tried within 3 months after his retirement, the Court Martial can no longer try him: Nigerian Air Force v. Obiosa. That means the offences would be statute barred. However, there are exceptions.


  1. If the officer committed a civil offence outside Nigeria, he can, with the consent of the Attorney General, be tried for the offence even after 3 months of his retirement.

  2. With respect to offence of mutiny or failure to suppress mutiny an officer can be tried at any time after retirement.

  3. A retired officer can be tried for the offence of secession, as it has no time limit.


OTHER TRIBUNALS

Previously, we had seen tribunals try criminal offences. They try particular class or persons or types of offences. The rationale for their establishment was the need for exigency and to promote dispensation of justice. These are:



  1. Failed Banks Tribunal.

  2. Currency and Miscellaneous Offences Tribunal (CMOT), etc.

All these tribunals have since been abolished by the Tribunals (Certain Consequential) Amendment Act, 1999. The only ones left in existence now are the Robbery and Firearms Tribunal, Civil Disturbances Tribunal and Treason and Treasonable Felony Tribunal. The Rule of Practice and Procedure applicable to all Tribunals is the CPL, that is, Criminal Procedure Act.

THE CORONERS COURT

The Coroners Court is a Court of Inquest. It is not a trial court. Therefore, it is not a court of law. There are Coroners Laws of the various States of the Federation. These laws authorise a Coroner to conduct an Inquest into the cause of death of a person where death is sudden and unnatural or where death occurs in a public place. Public place includes:



    1. Police custody.

    2. A prison.

    3. A lunatic asylum or

    4. Anywhere a public execution takes place.

Where death occurs in any of these places mentioned, the Coroners Inquest is mandatory. The Coroner is usually a Magistrate within whose jurisdiction the body of the deceased person is found. However, the Attorney General may, by notice published in the State Gazette, appoint any fit person to conduct an Inquest. See Sections 3 and 7 of the Coroners Laws of Lagos e.g. inquest into cause of death of collapse of bio;domg at Synagogue church
Section 25 of the Coroners Laws of Lagos State states that the purpose of an Inquest is to determine the identity of the deceased and the cause of death.
The Coroner may conduct an Inquest on any day including Sunday or public holidays. Note also that where the Coroner considers it expedient, he may hold an Inquest in private but he must record his reasons for holding it in private.
The Coroner Court may take evidence on Oath but it is not bound by the Rules of Evidence Act. He may also issue summons or other processes as are contained in the Evidence Act.

Any person who testifies before a Coroner Court is not bound to answer any question if he is of the opinion that his answer may incriminate him. The Coroner may also take evidence of a sick person from his sick bed or he may direct another Magistrate in the jurisdiction where the person is sick to take such evidence and forward it to him under Section 28 of the Coroners Laws, Lagos State. The Coroner shall give a verdict at the end of the Inquest. His verdict is subject to review by the High Courts.


Once a court is informed that criminal proceedings have been or is about to be instituted against any person in respect of a deceased person, the Coroner must stop the Inquest until the trial is concluded. That was the decision of the Supreme Court in Adepetu v. State (1998).
THE PURPOSE OF AN INQUEST

The purpose of an Inquest is not to determine guilt. Therefore, criminal charges may not necessarily follow an Inquest. However, where the verdict of a Coroner necessitates, the Attorney General may institute criminal proceedings. Note that the Coroners Court is not a court of trial. Therefore, the Attorney General cannot enter a nolle prosequi before a Coroners Court.


LIMITATION OF ACTION

The general rule is that there is no limitation of action or time limit within which to institute criminal actions against offenders.



Exceptions where time is of the essence otherwise the action will become statute bar are in the following:

  1. Treason and treasonable felony, to be prosecuted within 2 years

  2. Sedition, within 6 months. See S. 52 (1) (c) of the Criminal Code

  3. Custom offences, within 7 years. See S. 176 (3) of the Customs and Excise Management Act.

  4. Carnal knowledge of a girl under 16, within 2 months

  5. Military offences to be tried within 3 months if the offender is out of service.

See OLATUNJI V. STATE
NB:

S. 2 of the Public Officers Protection Act only protects public officers in civil trials and does not apply to criminal trials. See YABUGBE V. COP

THE INTERNATIONAL CRIMINAL COURT (ICC)


    1. JURISDICTION OF THE INTERNATIONAL CRIMINAL COURT

Established by the ROME STATUTE/International Criminal Court Statute adopted in a UN diplomatic conference in July 1999. Nigeria ratified the statute on the20th April 2002

The permanent seat of the ICC is at the HAGUE in Netherlands-ART 3(3)


JURISDICTION OVER OFFENCES –ART. 5(1)

Hears only serious violations of International human Rights laws.

Examples are:

a. Genocide

(b) Crimes against humanity

(c) War crimes

d. Aggression: This cannot be invoked until 2017 or when 20 state parties have signed.
NOTE- ICC cannot execute a warrant of arrest against a NON STATE PARTY e.g. USA, China
ICC crimes do not apply retroactively it has jurisdiction over crimes committed ON or AFTER 1stjuly 2002. ICC crimes are not subject to statute of limitations-Art 29
JURISDICTION OVER PERSONS

Applies to persons committing serious crimes of international concern-ART 1

Can only try persons not states-Art 25.




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