Week 3 &4 Sources of Criminal Procedure Laws


NB- the doctrine of state immunity does not apply-Article 27

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NB- the doctrine of state immunity does not apply-Article 27

Provides for Individual responsibility-Art 25


JURISDICTION OVER MINORS

Does not exercise jurisdiction over minors. The ICC exercises jurisdiction over persons OVER 18 years-Article 26


JURISDICTION OF ICC IMPOSE PUNISHMENT- Art 77

-Cannot impose death penalty

-Life imprisonment when justified
-Maximum of 30 years imprisonment

-Additional fine

-Order of forfeiture without prejudice to bonafide purchasers
APPEALS –Appeals Chamber- Art 39
RELATIONSHIP BETWEEN ICC AND NATIONAL COURTS

-ICC is complimentary to national criminal jurisdictions-ART 1

-ICC is a court of LAST RESORT. It will only act where state parties are UNABLE or UNWILLING TO PROSECUTE- ART 17
HOW IS THE JURISDICTION OF ICC INITIATED?


  1. A state party will lodge a complaint with the prosecutor- Art 14 (UN charter)

  2. Referral from the UN security council

  3. Prosecutor may initiate investigation on its own-Article 15

  4. Where the alleged crime was committed on the territory of a state party (or where the state on whose territory the crime was committed has accepted the jurisdiction of the court

4.4 DETERMINATION VENUE OF COURTS IN NIGERIA AND ITS RELAVANCE


RELEVANCE- To know the appropriate judicial division/ magisterial district to institute a criminal action.

DETERMINATION OF VENUE-


  • Subject matter of the dispute-OLOWU V. NIG. ARMY(failure to perform military duty tried at military tribunal).

  • Judicial division or magisterial district of a state in Nigeria


WHEN CAN AN ACTION BE COMMENCED IN A STATE HIGH COURT/ MAGISTRATE COURT?

An action may be commenced in a judicial division or magisterial district of a state as follows;

IBORI V. FRN

  • Where a consequence of the offence has occurred

  • Where property or person (subject matter) has been transported or found

- S.64 CPL; SECTION 134 CPCL; SECTION 58 ACJL,

  • Where venue is uncertain, any of the places it was committed can be the venue.

s64(d) CPL; s135 CPCL; S.58(d) ACJL, George v. FRN (2011) 10 NWLR (pt 1254) P. 1

WEEK 5: SUMMONS, ARREST AND SEARCHES

A Magistrate may by summons or warrant of arrest compel the attendance in court of any person accused of having committed an offence in any place within or outside Nigeria provided the offence is triable in the state: s79 CPL, 47(1) CPCLL, 16 ACJL and s. ? ACJA.

Summons and warrant of arrest are issued based on complaint made by any person (usually a police officer) showing that the person named therein is reasonably suspected to have committed an offence. The magistrate has the discretion to issue or not to issue. Where a magistrate refuses to issue, he must give reasons: s154(1) CPCL

MODES OF SECURING THE ATTENDANCE OF THE ACCUSED PERSON

This can be done in three (3) main ways: summons; by arrest with warrant; by arrest without warrant

SUMMONS

A summons is a document issued by the court directing the person named therein to appear in court at a stipulated date and time to answer to the charge or allegation or complaint against him.


WHO CAN ISSUE SUMMONS?

  • A Magistrate

  • A Judge

  • A Justice of Peace (this is only provided for under the CPCLL s47)

  • See s79 CPL, s82 ACJL

WHEN IS A SUMMONS ISSUED

  • Minor offences

  • Where the person is not likely to refuse to attend the court or police station

  • Offences in Column 4 Appendix A to the CPCLL


CONTENTS OF A SUMMONS

1. A concise statement of the alleged offence.

2. The name of the individual charged with the alleged offence.

3. An invitation to the named individual to attend court or police station at a particular date or time being NOT LESS THAN FORTY EIGHT HOURS after the service of the summons on him.

4. The date the summons was issued.

5. The signature of the issuing authority

-S. 83& 87 CPL, s.47(2) CPCLL, S.79&85 ACJL, s. ? ACJA

NB-In CPL states’ magistrate has a discretion to issue a summons but he must give reasons-S.81 CPL



  • It has been held in Goodman v Ebans Ltd that the use of a rubber stamped signature is a sufficient compliance with requirement for signature

  • Summons must be in duplicate copy- S.85 ACJL

RATIONALE- This is to serve as evidence of service.
WHO CAN SERVE A SUMMONS?

  1. Police officer;

  2. Officer of the court;


  3. Authorised public servant

S.88 CPL; S.48 CPCLL; S.86 ACJL, s. ? ACJA
DAYS AND TIME FOR SERVICE OF SUMMONS-

S.82 CPL

S.81 ACJL

  • It must be served within the hours of 8am-6pm.-(LAGOS ONLY)

  • A summons may be issued or served on any day including a Sunday or Public Holiday.

  • Summons served/issued on SUNDAY and PUBLIC HOLIDAY take effect from next working day-S.81(B) ACJL.

NB-DOES NOT APPLY IN THE NORTH- CPCLL IS SILENT on this
MODES OF SERVING SUMMONS

  1. PERSONAL SERVICE is required: S. 89 CPL; S.49(1) CPCL; S. 87 ACJL;

SUMMONS MUST BE SERVED PERSONALLY ON;



  1. INDIVIDUALS -s89(a)CPL; 49(1)CPCLL; s.87(a) ACJL; s.? ACJA

  2. Firms or corporations can be served through a

  1. SECRETARY

  2. MANAGER

  3. PRINCIPAL OFFICER at the company’s premises- section 50(1) CPCL.

Firms can be served through

  1. one of the PARTNERS

  2. SECRETARY/DIRECTOR

  3. CHIEF AGENT

  4. or by leaving it at the premises.-

S.89(b) CPL; S.87(b)ACJL

  1. Local government council (in accordance to LG law)

- S.89(c)CPL; S.51CPCLL; S.87(c)ACJL; s.? ACJA

  1. Government employee-(sent to HOD)-


S.91 CPL; S.89 ACJL


PROOF OF PERSONAL SERVICE


  1. An individual who is personally served with a summons to appear must acknowledge receipt on the back of the duplicate copy of the summons: s94 CPL, S. 49(2) CPCL, S. 92 ACJL

  2. NB- Any person refusing to endorse may be arrested and is liable to a maximum of 14DAYS imprisonment: S.93 ACJL; S.95 ACJL.

  3. However persons who cannot sign or make their mark must be served in the presence of a witness – S. 53 CPCL( IIITERATES & BLIND PERSONS)(NORTH ONLY)


B-SUBSTITUTED SERVICE

Can only be done on two conditions- where personal service is not possible and with leave of court.


MODES OF SUBSTITUTED SERVICE

Section 90 CPL & 88 ACJL prescribes the various substituted modes of service

a. Pasting of the summons on a conspicuous part of the last known address of the individual named in the summons



NOTE-S. 52 CPCL allows for substituted service by leaving a duplicate copy of the summons with an adult male member of the individual’s family.(NORTH ONLY)
PROOF OF SUBSTITUTED SERVICE

This is usually by Affidavit or declaration stating the reasons for the substituted service and how it was done-S. 55 CPCL.


In the SOUTH the person effecting service must endorse particulars of method of service on the duplicate: S.94 CPL; S.92 ACJL

NB- Where person serving summons is absent at hearing, endorsement on a duplicate and affidavit show date and method of effecting service is sufficient proof-s.90 ACJL;S.93 CPL

LIFE SPAN OF A SUMMONS

S. 103 CPL, S. 383 CPCL; S.100 ACJL


  • Once a summons is issued, it remains valid and subsisting until it is CANCELLED or EXECUTED.

  • It is not invalidated by the DEATH, RETIREMENT, REMOVAL FROM OFFICE, PROMOTION OR LOSS OF JURISDICTION by the issuing authority.


CONSEQUENCES OF DISOBEYING SUMMONS

A warrant of arrest may be issued to compel the individual to appear and answer to the alleged offence: S. 96 CPL; S.70CPCL; S.94 ACJL;


SERVICE OF SUMMONS OUTSIDE A JUDICIAL DIVISION/DISTRICT OF ISSUE

This will be done by sending a duplicate of the summons to the court within the division where the offender resides: S.92 CPL; S.54 CPCL; S.91 ACJL


SERVICE AND EXECUTION OF A SUMMONS OUTSIDE THE STATE OF ISSUE

SECTION 478 CPL; S.361 ACJL

Summons (other than summons to compel attendance of a witness) issued in one state may be served on the person to whom it is addressed in another state. This applies only to summons on information or complaint.


The endorsement of a Magistrate in the state of execution is not required. The service of such summons in another state follows the same process as its execution in the state in which the summons was issued. The person on whom the summons is served must endorse the duplicate copy, acknowledging service. No provision in CPCL

EFFECT OF FAILURE TO ENDORSE SUMMONS

NOTE-Failure to do so is punishable by detention in custody or prison for a Period Not Exceeding 14 Days as a court deems fit.

Where service is by substituted method, the person who made such service shall endorse the particulars of such substituted method on the duplicate copy.

TAKE NOTE: All other summons (e.g. witnesses summons etc) can only be served outside the state of issue by leave of court: S. 479 CPL; S 362 ACJL
ARREST WITH WARRANT

WHEN CAN A WARRANT OF ARREST BE ISSUED?
a. Where the Law creating the offence states that an offender cannot be arrested without warrant.

b. Where a summons is disobeyed.

c. Where a serious offence is alleged against the offender

A warrant of arrest is an authority directed to a police officer or any other person to arrest an offender: s25&27 CPL, s58 CPCL, s22 ACJL



WHO CAN ISSUE A WARRANT OF ARREST

Under the CPL only a Magistrate or a judge, may issue a warrant of arrest – S. 22(1) CPL & s23 ACJL

Under the CPCL, in addition to a magistrate or judge, a Justice of the Peace can also issue a warrant of arrest: S. 56(1) CPCL.
NOTE(EXAMS)POLICE OFFICER CANNOT ISSUE A WARRANT OF ARREST.
ISSUANCE OF WARRANT OF ARREST


  • A warrant of arrest can only be issued where there is a COMPLAINT ON OATH that the person therein is suspected to have committed an offence: s22(1) CPL, s56(1) CPCL, s23 ACJL,

NB-allegations in a letter not sufficient- Ikonne v.COP (1986)

  • Complaint must be made by the

  1. complainant himself or

  2. by a material witness.-

S.23 CPL; S. 23 ACJL
  • The complaint on oath shall be made to a Judge or Magistrate sitting in his capacity as a Judge or Magistrate-Ikonne v. C.O.P (a Judge issued a warrant acting in his capacity as a Chairman of a Judicial Commission of Inquiry. It was quashed on APPEAL)


NB-In the north (CPCL), the complaint need not be under oath. Can be issued once complaint discloses an offence
NB-A magistrate can lawfully issue a warrant of arrest irrespective of the fact that he lacks jurisdiction to try the alleged offender for the offence.

== An Alkali Court/Area Court CANNOT issue a warrant of arrest if the warrant is to be served in CPL states– COP V. APAMPA


CONTENTS OF A WARRANT OF ARREST

1. Concise statement of the alleged offence.

2. Name of the individual charged with the alleged offence.

3. Order directing the police or person executing the warrant to arrest the offender

4. Date of issue

5. Signature of the issuing authority.

6. A warrant of arrest must be in duplicate copy.

ACRONYM- CNODSD - Sections 22 CPL, s56 CPCL, s22 ACJL


DAY/TIME AND PLACE OF ISSUE AND EXECUTION OF A WARRANT OF ARREST

A warrant of arrest may be issued or executed on any day including a Sunday or Public Holiday and anywhere.– S.24&28 CPL; s63 CPCL; S.24&27ACJL



PERSONS WHO CAN EXECUTE A WARRANT OF ARREST-S.25 CPL/ACJL; S.58 CPCL

1. Any police officer-

2. May be directed to all police officers
PLACES WHERE WARRANT OF ARREST CANNOT BE EXECUTED

1. A warrant of arrest cannot be executed in a court room while the court is sitting



S.28(2)CPL ;S.27(2)ACJL; NB-CPCL is silent

2. In a legislative house while in session EXCEPT with the permission of the person presiding e.g. Speaker of the House of Representatives-Tony Momoh v. Senate of National Assembly & 2 ors; s31 Legislative Houses (Powers and Privileges) Act 2004

MODE OF EXECUTION OF WARRANT OF ARREST

The Police Officer or any person executing the warrant of arrest must disclose the substance of the warrant to the suspect and the warrant to the offender at the time of arrest- S. 28 (3) CPL; ;S.60 CPCL; S.27(3) ACJL



EXCEPTION-reasonable ground for non disclosure (ESCAPE/RESISTANCE/RESCUE)
Where the warrant of arrest is not immediately available at the time of arrest, the officer may still arrest the offender but must disclose the existence of the warrant to the arrested person, and thereafter show the warrant to the person as soon as practicable.

S 29 CPL; S. 61 CPCL; S,28 ACJL.
Accused shall be informed of the offence by the police when arrested unless caught in the middle of the act or chased immediately after the act: s5 CPL; s38 CPCL

LIFESPAN OF A WARRANT OF ARREST

A warrant of arrest once issued, remains valid and subsisting until executed or cancelled by the issuing authority: S. 25(2) CPL/ACJL; S.56 (2) CPCL. The death, resignation, retirement, promotion or transfer of the judge who issued it does not affect its validity.


NOTE-However, once a warrant of arrest has been executed, the warrant expires thus, can no longer be used to make another arrest, not even the same person earlier arrested-

R. v. Akinyanju (1959).
QUESTION-Prudence was arrested with a warrant and the AG entered Nolle on her behalf. she was later rearrested with the same warrant. Comment? ANS-this was wrong. She must be rearrested with a new warrant.

EXECUTION OF WARRANT OUTSIDE THE DISTRICT OF ISSUE

Where a warrant of arrest executed outside the district of issue but within the same state is not endorsed with bail; the arrested person must be taken to a competent court within the district where he was arrested. The court will then direct his removal to the court which issued the warrant of arrest – S. 31 CPL; S.64CPCL; S.30 ACJL;


NOTE-However, in the North, before a warrant of arrest is executed outside the district of issue, a Court in the district where the offender is to be found must endorse it, before it is executed on the offender- Section 66 CPCL
CONSEQUENCES OF DISOBEYING WARRANT OF ARREST (NORTH ONLY)

A-PUBLIC SUMMONS-

SECTION 67 CPCL


  • This is issued by a Judge of the High Court where there is evidence showing that a person against whom warrant of arrest was issued has

  1. ABSCONDED or

  2. is CONCEALING himself in order to evade service.

  • The Judge may publish a public summons in writing requiring the person to appear at a specified date and time, within thirty days from the date of publication.


HOW A PUBLIC SUMMONS IS PUBLISHED /EXECUTED

a. By reading it orally in a conspicuous part of the town or village where the alleged offender resides e.g. town hall, market place etc.

b. Pasting of the summons on a conspicuous part of the alleged offender’s residence

c. By affixing it to a conspicuous part of the High Court building such as a door or notice board.


B-BENCH WARRANT-S.96 CPL: If the court is satisfied that the accused has been served with a summons and the accused does not appear at the time and place appointed by the summons and his personal attendance has not been dispensed with under section 100 of the Act, the court may issue a warrant to apprehend him and cause him to be brought before such court.

NB: a warrant of arrest may be endorsed with bail (except for a capital offence): s31 CPL;


s64 CPCL
EXECUTION OF A WARRANT OF ARREST OUTSIDE THE STATE OF ISSUE (nationwide)

1. A Police officer is to take the warrant for endorsement (by a Court having jurisdiction in the executing State

2. The Judge or Magistrate in the executing State before endorsing it MUST satisfy himself that:


        1. It was issued by a court of competent jurisdiction.

        2. It is for an offence known to Law in the issuing State.

NOTE-The Court will refuse to endorse the warrant if unsatisfied on the above points.



COP V. APAMPA.

NOTE-police officer has sufficient authority to execute after endorsement-

S.482(2)CPL;372(2) ACJL

4.. The endorsing Court upon arrest of the person may

a. Order the discharge of the offender if the offence is not known to law in issuing state

b. Approve or refuse bail bond and then forward the arrested person to the issuing Court - S.482(3) CPL & s30 ACJL

NB-endorsement is a MINISTERIAL act while making of orders is a JUDICIAL ACT-Metropolitan Police Commissioner v. Hammond S. 482 (1) of the CPL, S. 65-66 of the CPCL, S. 365 (1) of the ACJL, R V. OLOWU, COP V. APAMPA
NB .S. 7(b) Criminal Procedure (Northern Region) Act 1960 states that the provision of S. 482 CPL shall apply to the Northern States.
QUERY-does the endorsing magistrate require evidence.

ANS: Yes during judicial review of an order.
HOW TO MAKE ARREST

  • An arrest can be made by not only using words but touch or confine the body of the person to be arrested: s3 CPL; s1 ACJL


  • NB: that except the person to be arrested wants to escape or resist arrest, the police shall not handcuff, chain or beat the person to be arrested: s4 CPL; s2 ACJL

  • Where the offence is unknown to law, the offender shall be discharged


ARREST WITHOUT WARRANT

If a person is suspected to have committed an offence, he may be arrested by:

i. A Police Officer,

ii. A Judicial Officer,

iii. A Justice of the Peace (North)

iv. A Private Person

without warrant
A-THE POLICE

SECTIONS 10, 11 & 55 CPL;

S. 26 CPCL, S. 10 ACJL; S. 24 Police Act;

a. Person against whom he suspects upon reasonable grounds of having committed an indictable offence (SUBJECT TO THE PROVISIONS OF THE LAW)

b. Any person who commits any offence in his presence.

c. Any person who obstructs a police officer while in the execution of his duty, or who has escaped or attempts to escape or attempts to escape from lawful custody.

d. Any person in possession of anything reasonably suspected to be stolen property

e. Any person whom he suspects upon reasonable grounds to commit an offence punishable in Nigeria outside the country.

f. Any person having in his possession -----------any instrument of house breaking without lawful excuse.

g. Any person against whom a warrant of arrest has been issued by a court of competent jurisdiction in the state.

h. Any person who has no ostensible means of subsistence and who cannot give a satisfactory account of himself, and

i. Any person found in the state taking precautions to conceal his presence in circumstances which afford reason to believe that he is taking such precautions with a view to committing an offence.


NB-S.25 Police Act-police can make arrest based on an already issued warrant without warrant in possession

NOTE-In arrest without warrant, once the arrest is made upon reasonable grounds, police is not in breach of any law- JACKSON V. OMOROKUNA (1981);


If the arrest is not based on reasonable suspicion, the police may be liable for unlawful arrest: COP V. OBOLO (1989)
NOTE-a police officer can only exercise the power of arrest without warrant within his state command.
LIABILITY FOR WRONGFUL ARREST WITHOUT WARRANT


  1. If no offence was actually committed, and although an offence was committed, the arrested person was not responsible for it, the Police Officer is not liable for unlawful arrest-Wiltshire v. Barrett;

  2. Where a policeman detains a suspect in order to confirm his alibi or to investigate the case further, he would not be liable for false imprisonment-Dallison v. Caffery


B-JUDICIAL OFFICERS

Where an offence is committed in the presence of a Judicial Officer (Magistrate or Judge) within his district or division, the Magistrate or Judge may arrest or order any person to arrest the offender - S. 15 CPL/ACJL

NB-S. 29 CPCL confers powers of arrest without warrant on a Justice of the Peace. However, in practice magistrates and Judges in Northern States also exercise powers of arrest without warrant.
Furthermore, a Magistrate or Judge may arrest or order the arrest of an offender who commits an offence in his presence if upon a complaint on oath by another person he would have issued a warrant for arrest of the offender S. 16 CPL, S. 30 CPCL.
C-PRIVATE PERSONS

Section

12&13 CPL; s28(d) CPCL; s.21 ACJL;

S.24 police act provides that a private person may arrest without warrant.

i. Any person who commits an indictable offence in his presence or

ii. Any person whom he reasonably suspects of having committed a felony

iii. Any person who commits a misdemeanour by night.

iv. A property owner can arrest any person found committing an offence injurious to property

v- If an arrested person escapes or is rescued from custody





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