BETWEEN: THE STATE ……………………. COMPLAINANT VS. ALHAJI ATUTUWA ………………….. ACCUSED PERSON WARRANT OF ARREST To: Corporal Ado Musa, Police officer.
Compliant on oath has been made on the 28 day of September 2011 that Alhaji Atutuwa of No. 5 Oduwole Street Kakuri Kaduna State have in his possession a counterfeiting currency printing machine and thereby committed an offence punishable with life imprisonment under section 2 of the Counterfeit Currency( Special Provision) Act.
You are therefore hereby commanded to bring the accused before the High Court sitting at Kaduna fortwith to answer the said complaint and to be dealt with according to Law.
DATED THE ……. DAY OF SEPTEMBER, 2011. ………………
Judge MAJI & CO
BARRISTERS AND SOLICITORS OF THE SUPREME COURT OF NIGERIA
NO 15 BROAD STREET
NARAYI, KADUNA STATE.
OUR REFERENCE: PHONE:
DATE: 14 SEPTEMBER 2011.
The Divisional Police Officer,
Police Divisional Headquarters,
APPLICATION FOR BAIL
We are solicitors to Mrs. Atutuwa of No.5 Oduwole Street Kakuri Kaduna who is currently under arrest and detention at your station, and she shall be referred to herein as ‘our Client’.
We apply for her bail pending your arraignment of our client. Our Client pledges to appear at the station anytime requested by you.
We recommend Alhaji Atutuwa Bello of no. 14 Broad Street Kaduna, an in-law to our client, as a surety for our Client’s bail.
Thanks for the anticipated cooperation.
Maji Sunday Esq.
For: Maji & Co.
PRE-TRIAL INVESTIGATION/ POLICE INTERVIEWS
Blackstone dictionary defines investigation as the process of inquiring into and tracking down through inquiry. To investigate is to follow step by step to determine the accuracy or otherwise of the information
Onyekwere v The State (1973): it is the duty of the police to investigate complaints or any report of the commission of a crime.
S4 Police Act –general duties of the police, ss3-10 CPL, s117-133 CPCL, s1-10 ACJL repeal and re-enactment law 2011
Ss 3-10 CPL is not as detailed as CPCL
Section 4 Police Act – General duties of the police includes:
Prevention and detection of crime
The apprehension of offenders
The preservation of law and order etc
Fawehinmi v IGP (2002): duty to investigate crimes not every investigation that results in a criminal prosecution. Notwithstanding s308 of the Constitution, held that a serving Governor can be investigation as difference btw investigation and criminal proceedings/criminal prosecution. Suggested in the case that arrest should be the last process in the investigation of any crime. Only when there is a risk of flight by the suspect, then can arrest before investigation.
Akinseye v COP(1966): CT shall take judicial notice of the general duties of the police
Police duties does not extend to enforcement of contracts and collection of debts: McLaren v Jennings  3 NWLR ( Pt 808) 470
S117-133 CPCL is Chapter XII which deals with information to the police and their power to investigate
Ss119-120: first information recorded
S121-122: case diary and the use of case diary
S123: power of police to summon and examine. Read the section in detail
S3&9 ACJR 2011: specifically look at the recording of confessions in Lagos State
Right of police to interview or interrogate suspects or arrestees
Not in every context can the words interview and interrogate be used interchangeable. Former is a conversation in a non-coercive environment btw police officer and suspect or witness (to gather information about what the person knows relevant to the subject of inquiry). Latter refers to a more structured interview of a suspect and in most cases, the interview transitions into interrogate where the police has a fair idea that the person has something to hide or is implicated in the crime.
Supreme CT held in 2 cases [Onungwa v The State (1976) and Manship Namsoh v The State (1993)] that the police can interview or interrogate any person.
The person may volunteer information and even if the person was not cautioned and he volunteers information, it does not affect the admissibility of this information in CT
Power of police to record statements
S35(2) 1999 Constitution: a person who is arrested or detained has the right to remain silent or avoid answering any question until consultation with a legal practitioner or person of choice
Even where the police does not warn the police as to this right, any statement he makes is still admissible
Different jurisdictions: CPCL states, CPL states, states that have their own administration of criminal justice (Ekiti, Lagos)
CPCL states (North): the rule regulating taking of statement is the 1970 rules – Criminal Procedure (Statement of Police Rules) 1970
CPL states (south except Lagos): Judges Rules (from England who have moved on from the Judges Rules). While the Judges rules are rules of administrative convenience, the 1970 rules have been held to be binding (Supreme CT as 1970 rules have partial statutory force). Non-compliance with Judges Rules may not affect admissibility of a voluntary statement – Egbogonome v The State (1993)
Right of the suspect to be cautioned
Both 1970 rules and Judges Rule provide that an arrestee should be cautioned before statements are recorded
No need for a caution if the police have not decided to charge the suspect
A statement is not rendered inadmissible merely because no caution was administered: s31 Evidence Act 2011. See Sections 30 and 31 E.A. on admissibility of physical evidence discovered as a result of inadmissible evidence.
Section 30 EA: Where information is received from a person who is accused of an offence, whether such person is in custody or not, and as a consequence of such information any fact is discovered, the discovery of that fact, together with evidence that such discovery was made in consequence of the information received from the defendant, may be given in evidence where such information itself would not be admissible in evidence.
Section 31 EA: If a confession is otherwise relevant, it does not become irrelevant merely because it was made under a promise of secrecy, or in consequence of a deception practised on the defendant for the purpose of obtaining it, or when he was drunk, or because it was made in answer to questions which he need not have answered, whatever may have been the form of these questions, or because he was not warned that he was not bound to make such statement and that evidence of it might be given.
THE JUDGES RULE
The Rules were first issued in 1912 by the Judges of the King's Bench to give English police forces guidance on the procedures that they should follow in detaining and questioning suspects. The Home Secretary had requested the judges to explain how an investigation should be conducted to avoid the resulting evidence being ruled inadmissible in court. The rules were intended to halt a divergence in practice that had developed among different police forces, and replaced earlier informal guidance, such as Sir Howard Vincent's Police Code and Manual of Criminal Law.
The Judges' Rules are not rules of law, but rather rules of practice for the guidance of the police, setting out the kinds of conduct that could cause a judge to exercise discretion to exclude evidence, in the interests of a fair trial. The rules did not alter the law on admissibility of evidence, but became a code of best practice: it was assumed that statements given by a suspect in accordance with the Rules would be admissible in evidence.
allowed the police to question any person with a view to finding out whether, or by whom, an offence had been committed
required the police to give a caution when they had reasonable grounds to suspect that a person had committed an offence
required a further caution when a person was charged and prohibited questioning afterwards charging save in exceptional circumstances
required a record of questioning to be kept
gave guidance on the best way to record a formal written statement
Five further rules were added to the original four Rules in 1918, and the rules were further explained in 1934 in a Home Office Circular 536053/23. The Rules were reissued in 1964 as Practice Note (Judge's Rules)  1 WLR 152, and it is this 1964 version that is applicable in Nigeria although there have since been replaced in England and Wales in 1986 by Code C made under the Police and Criminal Evidence Act 1984.
As explained in R. v. Viosin (supra), essentially the rules are administrative directions and do not have the force of law. For this reason, failure to observe any of them in the taking of a statement will not necessarily render the statement inadmissible in evidence, although it may do so – Nwaebonyi v. State (1992) 5 NWLR (Pt. 244) 698 C.A; Ejinma v. State (1991) 6 NWLR (Pt. 200) 627 SC; R. v. Wattam (1952) 36 Cr. App R. 72; R. v. Day (1952) 36 Cr. App. R. 91. The test of admissibility is whether the statement was made voluntarily –R. v. Prager (1972) 56 Cr. App. R. 151.
Rules 2 and 3 of the Judges Rules appear to be the most commonly applied by police officers in Nigeria. As soon as a police officer has evidence which would afford reasonable ground for suspecting that a person has committed an offence, he shall caution that person or cause him to be cautioned before putting to him any questions, or further questions, relating to that offence. Under Rule 2 of Judges Rule, the caution shall be in the following terms
“you are not obliged to say anything unless you wish to do so but whatever you say may be put into writing and given in evidence”
Where a person is charged with or informed that he may be prosecuted for an offence he shall be cautioned in the following terms
“do you wish to say anything? You are not obliged to say anything unless you wish to do so but whatever you say will be taken down in writing and may be given in evidence”.
After the above question, any other one relating to the offence should not be put unless they are necessary to prevent or minimise harm or loss to another person or to the public or to clear up an ambiguity and in such cases a further caution is prescribed – Rule 3 of Judges Rules.
If a suspect intends to write his own statement, he should be asked to write and sign the following statement before he starts writing out his statement:
"I make this statement of my own free will. I have been told that I need not say anything unless I wish to do so and that whatever I say may be given in evidence".
And if it is written by a police officer the accused must state at the end of the statement thus:
"I have read the above statement and I have been told that I can correct, alter or add anything I wish. This statement is true. I have made it of my own free will".
Persons other than police officers charged with the duty of investigating offences must as much as possible comply with the Judges' Rules. Apart from complying with the Judges' Rules, the Nigerian police have evolved the practice of taking an accused person who has made a confessional statement to a Superior Officer or a District Officer at the earliest possible time for endorsement. This is to give the accused the opportunity to deny or retract his statement. This practice has been highly commended by Courts– R. v. Omorewere Sapele (1957) 2 FSC. 24; Nwigboke v. R. (1959) 4 F.S.C 26; Adamu v. A-G. Bendel State (1986) 2 NWLR (Pt. 22) 284.
However, the fact that a confessional statement does not contain the usual cautionary words is not enough reason not to admit it in evidence – Nwaebonyi v. State (supra). In Sunday Onunga v. The State (1976) S & C. 169, the Supreme Court held that a confession made without caution and even before the maker was charged with an offence is admissible provided it was voluntary. Also, when a suspect or an accused person who has been cautioned is making a statement, there is no need to caution him again when he begins to make a confession – Sangara v. The State (1965) 1 All NLR 59.
As also previously stated that the Judges rules as well as the confirmation of confessional statement by superior police officers is a rule of practice and not a rule of law and therefore failure to comply with them does not render a confession that was voluntarily made inadmissible. R. v. Voisin (1918) 1 KB. 531; Abukar v. The State (1969) NSCC Vol. 6 at 313.
But in asking the accused to confirm or deny his statement taken down in a language other than English, the proper thing to do is to read the statement in its original form and not its English translation if the accused is illiterate – R v. Nwangbo Igwe (1960) 5 FSC. 55. It should be noted that where an interpreter is used in recording an accused confession such confession is inadmissible unless both the interpreter and the person who recorded the statement are called as witness – Nwaeze v. The State (1996) 2 NWLR (Pt. 428) 1.
It has been held that before an accused person can be invited to pose for a photograph which would strengthen the case against him, he should be cautioned and told he is not bound to pose for such photograph Ugama v. R (1959) 4 FSC 218.
Effective police interview
Police investigation is an art that requires experience and skill. The focus is the legal parameters for lawful interrogation
Interrogation must be conducted within the scope of the constitutional rights of a suspect and the provisions of the Evidence Act
ACJR & RL 2011
Section 3(2) ACJL: an arrestee shall be informed of his right to:
Remain silent or avoid answering questions or avoid answering any question until after consultation with a legal practitioner or any other person of his own choice
Consult a counsel of his own choice before making or writing any statement or answering any question put to him after arrest
Section 9(3) ACJL: provides that a confessional statement must either be recorded on video, or where facilities are unavailable, it must be made and recorded in the presence of a counsel. The provision is commendable for adopting an ingenious procedure to rein in police abuse of suspects in Nigeria but it does not provide for the recording of entire interrogation sessions
Constitutional Rights to a Suspect of a Police Station
Right to silence
Right to presence of a solicitor during the interrogation
Right to be informed of the reason for the arrest
Right to personally record his statement if he so wishes
Right to dignity of his person
Right to bail
Right to decent facilities, food, decent cell conditions
Right to medical facilities
Adequate time and facilities for his defence
Right to be arraigned before a competent court
Right to an interpreter: both the English version and vincula version of
Right not to be tortured
Right to reasonable visitation
Right not to be held in servitude
Right not to be compelled or forced to do manual labour
Right to compensation and public apology for unlawful arrest or detention
Right to sleep at reasonable intervals
Right to life (e.g. no extra judicial killing) – Cross River State case: man tortured and sent to a remote location where two other suspects where killed. He signed the confession and had to dispose of the bodies. Trial judge said no matter the threat; if he were innocent he would not confess. CT of Appeal reversed this decision, Imo State case: suspect and his family were taken away. On the way to the prison, he was shot. He was taken to hospital and later he was given a statement to sign. Trial judge held that the threat was not present when he signed the agreement. The Ct of Appeal reversed the decision.
CONSTITUTIONAL RIGHTS AVAILABLE TO A SUSPECT AT THE POLICE STATION
When a person is taken to a police station for the commission of an alleged offence or on reasonable suspicion of being about to commit a crime, he is entitled to the following rights under the Constitution and other subsidiary legislation, presently in force:
Right of Silence - Section 35(2) of the 1999 Constitution, provide for the right of a suspect to remain silent while under arrest or being held at the Police station.
The Section provides:
Any person who is arrested or detained shall have the right to remain silent or avoid answering a question until after consultation with a legal practitioner or any other person of his own choice.
The import of this provision, popularly referred to as the right to freedom from self discrimination is that an accused person is at liberty to insist on talking to a lawyer before making a statement or being subjected to interrogation at the Police Station. It is therefore illegal for the Police to compel an accused or suspect to talk or make any statement, against his wish and to consult a lawyer first, before doing so.
Right To have a Legal Representative of one’s choice present during interview- An accused person or a suspect, who is under arrest or detention, has a right to Counsel also guaranteed in Section 35(2) of the 1999 Constitution, while under arrest or being held at the Police station.
The Section provides:
Any person who is arrested or detained shall have the right to remain silent or avoid answering a question until after consultation with a legal practitioner or any other person of his own choice.
The import of this provision is two fold, on one hand the section guarantees the right to silence earlier discussed, on the other hand, it provides that such accused person is at liberty to insist on talking to a lawyer before making a statement or being subjected to interrogation at the Police Station and cannot therefore be compelled to talk or make any statement, against his wish and to consult a lawyer first, before doing so.
Right To Legal Assistance and Advice: Related to the right to legal representation is the corresponding right to free legal services for those who cannot afford same. Section 46 (4)(b) of the 1999 Constitution empowers the National Assembly to make provisions for the rendering of financial assistance to any indigent citizen of Nigeria where his rights under Chapter IV of the Constitution has been infringed or with a view to enabling him engage the services of a Legal Practitioner to prosecute his claim. Pursuant to this Section, the Legal Aid Scheme was established by the Legal Aid Act Cap L9 LFN 2004, now Legal Aid Amendment Act (2011). See also s3(1)-(3) ACJL
The Legal Aid Act 2011 contains several improvements from the previous position. The major areas of reform are in the areas of the eligibility level of the scheme, otherwise called means and merit test.
Under the 2004 Act, Section 9 (1) of the Act provided that the eligibility level for the purposes of assessing legal aid is N 5,000.00 per annum, this translates to about N13.00 per day.
For the classes of cases where legal aid was available, the Legal Aid Act 2004 also mentioned specific categories of criminal and civil cases in which the Legal Aid Council may provide assistance, to wit:
The Legal Aid Act 2004 prescribed that the Legal Aid Council may provide legal aid for the following offences under the Criminal Code:
Murder of any degree
Maliciously or wilfully wounding or inflicting grievous bodily harm
Assault occasioning actual bodily harm
The Corresponding offences in the Penal Code were:
Culpable homicide punishable with death
Culpable homicide not punishable with death
Grievous hurt and
Criminal force occasioning actual bodily hurt.
According to the Act, Legal aid was also provided for charges of aiding or abetting, or counselling or procuring the commission of, or being an accessory after or before the fact to, or attempting or conspiring to commit, any of the offences listed above.
For Civil cases, the Act also provided for legal aid to be provided for civil claims in respect of accidents and for breaches of fundamental rights guaranteed under Chapter 4 of the Constitution.
A major mischief in the previous law was the exclusion of armed robbery, which accounts for the majority of arrests in Nigeria, from the category of offences eligible for legal aid. The new Legal Aid Act 2011 thus implemented the consensus of opinion to widen the scope of its operations in terms of increase in the level and category of potential beneficiaries from the scheme and the subject matter coverage.
Section 10 (1) of the Legal Aid Act 2011 provides that legal aid shall be granted to a person whose income does not exceed the National Minimum Wage. Section 10(2) goes further to provide that notwithstanding the provisions of Subsection (1), the Board may in exceptional circumstances grant legal aid service to a person whose earning exceeds the national minimum wage. This is a major improvement. That is not all.
The second schedule to the Act provides for the category of cases that are eligible for legal aid and in Item 8 (2), armed robbery is conspicuously included.
Furthermore, to give effect to the provisions of the Act, Section 19 of the Act provide for the monitoring and review of cases of awaiting trial detainees. Section 19 (2) of the Act provide that it shall be the duty of all Police Officers and Courts to inform suspected persons of their entitlements to the services of a Legal Practitioner from the moment of arrest and if such suspect cannot afford the services of a Legal Practitioner, to notify the Council to represent him if he so desires. And under, Subsection (3) of the said Section 19, the Legal Aid Council as well as lawyers designated by it shall have access to the interview. Section 19 (5) then provides that the Council may file an application in any appropriate Court for the review of the case of any person who has been held in any place of study without trial for a period exceeding the maximum provided by the Constitution.
How to Apply for Legal Aid from the Council
Under the Legal Aid Act, statutory criminal and civil legal aid application forms have to be used. Applications may be made orally or in writing to the headquarters of the Legal Aid Council in Abuja or to any Zonal or State Legal Aid Office. Oral applications must be reduced in writing by the legal aid officer to whom the application was made.
Right to freedom from unnecessary restraint: Just like it happens during arrest, criminal accused persons or suspects are entitled to the right not to be unnecessarily restrained during Police interview. This right is closely associated with the right to have a legal representative present during the interview, as no Lawyer worth his salt would allow his client to be interview while handcuffed, or in chains as it sometimes happens. Such treatments are degrading, contrary to Section 35 (1) of the Constitution and can render whatever statement obtained pursuant to such interview inadmissible. What is more, trial by ordeal is clearly prohibited under our Criminal jurisprudence – right to personal liberty
Right to bail – The right of a suspect to bail is a constitutional right fully guaranteed under Section 35(4) and (5) of the 1999 Constitution, which provides that a suspect is entitled to be released with or without conditions, even if further proceedings may be brought against him, within a period of a day or two days of his arrest and detention, as the case may be. This right is given effect to by the provisions of Sections 17, 18 and 19 of the CPL which empowers the police to grant bail to a suspect, on his entering into a bond with or without a surety for a valuable sum, to report at the police station at a given date and time. Section 129 of the CPCL makes similar provisions for bail of suspects by the police. This is also available in Section 17(2) of the Administration of Criminal Justice Law (ACJL).
Where by virtue of the nature and circumstances of a particular case it is not feasible for the police to release the suspect on bail, he must be charged to court not later than a period of 24 to 48 hours, from the date of detention depending on the circumstances of each case– Section 35 (4) & (5) of the Constitution; Section 3(2) of ACJL; Section 17 of CPL. In Eda v. Commissioner of Police (1982) 6 NCLR, 223, the court held that where the Police arrests and detains a person over an allegation or reasonable suspicion of committing an offence, and investigation of the case are on-going, it is their duty to offer bail to the suspect and/or charge him to court, within 24 hours, under the appropriate section of the CPL.
Section 35(4): Any person who is arrested or detained in accordance with subsection (1) (c) of this section shall be brought before a court of law within a reasonable time, and if he is not tried within a period of –
(a) two months from the date of his arrest or detention in the case of a person who is in custody or is not entitled to bail; or
(b) three months from the date of his arrest or detention in the case of a person who has been released on bail, he shall (without prejudice to any further proceedings that may be brought against him) be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date.
Section 35(4) of the Constitution sets out the requirement that anyone lawfully detained shall be brought before a court of law “within a reasonable time”. Section 35(5) goes on to define “reasonable time” as one day, in a situation where a court of competent jurisdiction is with 40 kilometres radius from the accused’s location (s. 35(a)), or a period of two days or such longer period as in the circumstances may be considered by the court to be reasonable (s. 35(b)).
Right to be taken to Court within a reasonable time: Section 35 of the CFRN, 1999 provides for Right to personal liberty. Section 35(1) of the CFRN, 1999 states that every person shall be entitled to his personal liberty and no person shall be deprived of such liberty. As an attribute of that right, Section 35(4) of the CFRN, 1999 states that a person arrested must be brought before a court of law within a reasonable time. What this entails is that in the course of questioning, the Police should always avert their minds to be presumption of innocence, and refrain from treating the interviewee as a condemned criminal. Eda v. Commissioner of Police (1982) 6 NCLR, 223 provided an opportunity for the Courts to give full vigour to the provisions of Section 35 (4)& (5) of the Constitution by declaring Section 17 of the CPL and Section 27 of the Police Act void for inconsistency for the said Constitutional provision.
Right to presumption of innocence: Section 36(5) of the CFRN, 1999 states that every person charged with a criminal offence shall be presumed to be innocent until proven guilty.
Right to be informed (in writing) of the reason for arrest: Section 35(3) of the CFRN, 1999 states that a person arrested shall be informed within 24 hours of the facts and grounds for his arrest or detention (in a language he understands). This applies to arrest and detention as well as to interview. A person being interviewed ought to be informed of his status in the interview, whether as a suspect or an a witness, this is to enable him decide whether to activate his right against self incrimination or the right to Counsel of his choice.
Right to public apology: Section 35(6) of the CFRN, 1999 states that any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person. This thus arises if after the interview and/or pre-trial investigations, it is realized that the person was wrongly arrested.
Right to counsel: section 36(6)(c) Constitution
Alibi: a plea that the suspect could not possibly have committed the offence in question because he was somewhere else at the relevant time: Ayan v The State (2013)
The suspect is under a duty to raise alibi at the earliest opportunity i.e. immediately he is informed that he is suspected to have committed the crime – Agu v The State (1985); Ozaki v The State (1990)
He must not only raise the defence, but also provide particulars of the place he was and the person he was with at the relevant time – Ntam & Anor v The State (1967)
Duty on the prosecution to investigate the alibi
The police are obliged to investigate alibi that is properly raised
No need to investigate alibi where reliable eye witnesses can place the accused at the scene of the crime or where it is raised to send the police on a fruitless investigation – Njoven v The State (1973); Omotola & Anor v The State (2009)
Where a person says he has an alibi in the statement to the police, he must appear in CT to verify the alibi, if not the CT can dispense with the alibi
Reliable confession is the strongest piece of evidence even stronger than eye witness testimony
An accused may be convicted upon his confession alone without any evidence and without corroboration. Strong because seen as the fact that the accused wants to unburden himself of his guilt
Section 28 E.A. 2011: A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime.
Any statement oral or written suggesting the inference that the accused has committed a particular offence
A confession made before or during investigation and before trial is called an informal confession while an admission of the commission of an offence made in court or in a judicial or quasi-judicial proceeding is called a formal confession or plea of guilty.
Focus of the class in on informal confessions
Form of a confession
A confession may be oral or it may be in writing: Suleiman Olawale Arogundare v The State (2009): the appellant killed his father (Abuja). The testimony of the officer was that he met the suspect awake around 2am wide awake. He asked him why he was awake and he said that it was because the ghost of his father who he had killed was hunting him. Interestingly, the written statement was thrown out but the oral statement was upheld all the way to the Supreme CT
In Lagos State, a confessional statement must either be made in the presence of a legal practitioner or recorded on video: s9(2) ACJL
Admissibility of confessional statement
Section 29(1) EA: In any proceeding, a confession made by a defendant may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.
S29(2) EA: If, in any proceeding where the prosecution proposes to give in evidence a confession made by a defendant, it is represented to the court that the confession was or may have been obtained —(a) by oppression of the person who made it; or (b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in such consequence, the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained in a manner contrary to the provisions of this section.
Section 29 (3): In any proceeding where the prosecution proposes to give in evidence a confession made by a defendant, the court may of its own motion require the prosecution, as a condition of allowing it to do so, to prove that the confession was not obtained as mentioned in either subsection (2)(a) or (b) of this section.
S29(5): In this section "oppression" includes torture, inhuman or degrading treatment, and the use or threat of violence whether or not amounting to torture.
Sections 30 & 31 EA: any physical evidence discovered is admissible even if recovered from tortured statement
Anti-Torture Bill 2013 does not exclude the fruit of coerced confessions even when the confessional statement has been excluded
Section 14 EA: Evidence obtained (a) improperly or in contravention of a law; or (b) in consequence of an impropriety or of a contravention of a law, shall be admissible unless the court is of the opinion that the desirability of admitting the evidence is out-weighed by the undesirability of admitting evidence that has been obtained in the manner in which the evidence was obtained.
Section 15 EA: For the purposes of section 14, the matters that the court shall take into account include—
(a) the probative value of the evidence;
(b) the importance of the evidence in the proceeding;
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding;
(d)the gravity of the impropriety or contravention; (e)whether the impropriety or contravention was deliberate or reckless;
(f)whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(g)the difficulty, if any, of obtaining the evidence without impropriety or contravention of law.
Section 30 &31 EA does not bring Nigeria with the UN Convention against torture
A retraction of a statement is different from an allegation that the statement was made contrary to section 29 E.A. where accused retracts the statement; the CT may admit the statement although the CT may credit the statement with less weight depending on the other evidence in the case (depends on circumstances of the case). CT will just ask whether it is safe to convict on such a retraction. Aremu v The State (1991); Egbogonomo v The State
Trial in trial:
Trial within trial is used to determine whether the confession is in violation of s29. Olabode v State (2009): Supreme CT held the test for the admissibility of a confessional statement is its voluntariness and once the issue is raised, it must be resolved before its admission
Babalolo Orishade v Federal Republic of Nigeria (2013): the prosecution has the burden of proving that the statement was taken in accordance with s29 E.A 2011. Usually the investigating police officer who recorded the police would be called to testify. CT decides whether prosecution has proved its case beyond reasonable doubt
By convention, when confession, a superior police officer will endorse that statement. So the superior police officer will also give evidence. Ct held this is not obligatory but a commendable practice
The process of associating a person with the communication of a crime
Identification may be done by visual recognition, photographic, voice, fingerprint, identification parade etc
A witness who claims to have known an accused person before the crime must link him to the crime at the earliest opportunity and not wait for identification parade. See case: Bozin v The State
An ID parade shall be conducted promptly: Adamu v The State (1991); Uzoma v The State (2013)
The procedure is to arrange persons with similar characteristics for the victim to pick out the perpetrator from among several persons. To arrange as many persons as possible (at least 8) as the same physical build for the witness to pick out. Where there are 2 suspects, increase the minimum number of persons to 12. The accused person must be given the choice as to where they can stand in line without the witness knowing this.
By convention, an ID parade should be supervised by a superior police officer who himself would not participate in the actual exercise
A photograph of the line-up ought to be taken before the victim is invited to identify the perpetrator
The superior police officer writes a report and fills the requisite forms
At the end, the report must be signed by 2 officers i.e. the officer who makes the entries and the officer who conducts the parade
Handling of Exhibit
There is a list of such exhibits, called Exhibit List which chronicles the items seized from one suspect all from different suspects in relation to one case. Then there is the Exhibit Register where the list of all exhibits in the custody of the Police in a particular Station or Division is recorded. The person that keeps custody of all such exhibits is the Exhibit Keeper and he is in charge of the Exhibit Room where all the items in relation to cases handled are kept, and from where they are brought to Court during trial.
It should be noted that not all exhibits are admissible in court. It is only when an exhibit is relevant to the case or fact in issue that it can be admissible and marked as Exhibit ‘A’, Exhibit ‘B’, etc
Exhibits are documents or physical objects discovered or recovered and relevant to an investigation
Exhibits must be carefully handled to prevent contamination – to provide a clear chain of custody
The chain of custody must be documented and proved in court, otherwise the exhibit may be tainted
The proper procedure is to mark each exhibit and lodge it with the exhibit keeper
Exhibits must be properly marked and lodged
The officer who recovers the exhibit will hand it over to an exhibit keeper
The IPO must testify to when he recovered the exhibit, what was done with or to the exhibit between when it was recovered and when it was tendered in court
How to apply for assistance under the Legal Aid Scheme
S8 Legal Aid Act 2011 provides that the Council shall provide legal aid in three broad areas, namely: Criminal Defence Service, Advice and Assistance in civil matters. Assistance is to indigent persons involved in criminal investigation or proceedings: s8(2) Legal Aid Act 2011.
S10(1) Legal Aid Act: shall only be eligible to a person whose earning does not exceed the national minimum wage
A person arrested must be taken to Ct within 24 hours if there is a Ct within 40km radius. Where there is no court within such distance the person shall be taken to court within 48 hours of arrest or such longer period as in the circumstances may be considered by the court to be reasonable: s35(5)(a) &(b). e.g. where investigation cannot be completed within such period, a court may order the person to be detained for a longer period.
NB: generally no bail for armed robbery and capital offences. If the crime is not a capital, the officer in charge of the police station or place of detention may admit the accused to bail on such terms and conditions as may be appropriate, pending investigation.
Terms and conditions of police bail
It must be entered upon recognisance with or without surety
The essence of police bail is to ensure that the accused enjoys liberty while ensuring that he is available. Where there is a significant flight risk, the police is less inclined to grant bail
Bail is not generally monetary; may require you to execute a bond and other conditions.
Procedure for police bail
Bail may be granted upon an application by the suspect or his counsel
Application by counsel is made on the letter head of chambers
The application is addressed to the DPO, COP, AIG, IG as the case may be. At the state level, the application may also be addressed to the ACP (Assistant Commissioner of Police) in charge of CID (Criminal Investigation Department) if the COP permits
Remedies available to a detainee who is refused or denied police bail
When police refuses bail:
A) Application for enforcement of fundamental rights:
The rules set out the practice and procedure for the litigation, regulation and prosecution of all matters relating to the enforcements of fundamental rights of citizens by the courts, pursuant to the provisions of chapter IV of the constitution. In pursuance of the foregoing statutory enactments for the protection and enforcement of rights of an aggrieved person, such person has the following legitimate and constitutional guaranteed remedies, whenever the rights are violated.
An order of leave to enforce his rights
An order of declaration
An order of mandamus
An order of injunction
Award of damages
An order of release or habeas corpus
An order of certiorari and prohibition
Another option available to an action person who has been refused bail by the Police is to approach a Court to grant him bail.
B) Habeas corpus proceedings: Writ of HABEAS CORPUS
This is a Latin word, which means “that you have the body”.This remedy is to secure the release or liberty of the subject, whose right to personal liberty has been lawfully infringed on, and which is better explained by the more elaborate Latin expression habeas corpus ad subjiciendum meaning a writ directed to the person detaining another, and commanding him to produce the body of the prisoner, or person detained. This is the most common form of habeas corpus which is to test the legality of the detention or imprisonment, not whether he is guilty or innocent.
Habeas corpus proceedings are usually governed by State Laws and an application herein is made ex-parte accompanied by a deposition on oath, stating the facts and circumstances of the wrongful detention, necessitating the filing of the application. It is a very potent weapon for restoration of abridged and deprived fundamental rights of detainees.
In Alhaji Manfred v. IGP & Ors, the court after a thorough consideration of the application, ordered the immediate release of the applicant from detention as well as the release of his confiscated properties on the grounds that the police lacked the power to carry out his arrest without sufficient evidence, and also had no powers to confiscate his property and personal effect without a valid court order.
C) In Lagos State and CPCL he may apply to a magistrate CT for an order for his production in CT (s77(2) CPCL). Note if suspect does not fulfil conditions of bail, he cannot just run to CT to grant bail as police will state that bail has been granted upon certain provisions
See Pg 52-53: Scenario 2: Agbo – role play
Where were you this afternoon
But Mrs Olu from Kuchiko village saw you there this afternoon right around the time the theft tool place
But Mrs Olu is partially blind. Do you have any other witnesses placing my client at Kuchiko village this afternoon
Can anyone confirm seeing you at Jollywell Hotel
What of Mrs Agbo, she claims you were one of the people who took her money. Lawyer states that the identification process was faulty. Well the identification parade is not strictly necessary
In any case, why have you denied bailed
Application for bail: Burago’s medical condition (right to medical care)
How do you obtain confessions and admissions in the scenario
How come we found 20,000 in your possession.
My client withdrew from an ATM. Do you have the text alert to prove it. He disabled it. Ok, produce a copy of the bank statement
Identification parade: Imo v State – people with same physical aspects and a minimum of 8 people. Where there are 2 suspects, increase the minimum number of persons to 12. The accused person must be given the choice as to where they can stand in line without the witness knowing this.
Alibi: police to investigate. Was the alibi raised at the earliest possible time? Also if they have concrete evidence of that accused persons committed the crime, no need to investigate the alibi raised
Bail: this is an offence which allows bail as not a capital or serious offence. If the counsel makes the application, the counsel should write the application on his letter handed paper and recommend sureties.
Right to remain silent and counsel (not cautioned)
NB: some legal safeguards support the constitutional safeguards
If the exhibit is perishable, then take photos of these items and then return the perishables to the owner. The photos will be admissible in evidence in the CT of law. Note the new Evidence Act 2011 on photographic evidence etc
Scope of legal aid
Legal Aid Act 2011
Section 8 2011 Act: legal aid will be allowed in cases of criminal defence service, advice and assistance in certain civil matters (e.g. murder/culpable homicide punishable by death etc); assistance to indigent persons involved in criminal investigation or proceedings (s8(2)) …. Representation at the police station and in court, mediation, legal counselling, financial and welfare assistance for women and children, rehabilitation back to society etc
Section 10: who can apply for legal aid: below the minimum wage (should be about N18,000); suspect must be an indigent person
Constitutionality of S27 Terrorism Prevention Act: is it justified in the interest of public safety? Under the CPCL, police can approach a magistrate to hold a suspect for a longer time if they cannot complete their investigation within 24hours. The idea of s35 is so that people are not held incommunicado and does not mean that suspects cannot be held for longer than 24hours.
Week 7: INSTITUTIONS OF CRIMINAL PROCEEDINGS
Attorney General (Chief Law Officer): s150(1) & 195(1) CFRN 1999 as amended – power to institute and undertake criminal proceedings, power to take over criminal proceedings and discontinue criminal proceedings (he doesn’t have to give the CT reasons). The Constitution states that the AG is to act in the interest of justice: State v Ilori (1983) – this issue came up as to whether the AG must satisfy this requirement to enter a nolle prosequi. In exercising this power inferred that the Constitution should have the interest of justice to exercise its powers but it is not for the CT to ask the AG to satisfy this requirement before the CT (thus the AG is a law until himself). Therefore only public opinion can be the only check on the powers of the AG. The power of the AG to enter nolle (to discontinue at any stage before judgment). The Constitution does not give the mode for entering nolle but some other statutes have given the procedure: s73(1) CPL, s253 CPCL (the AG goes to CT in person and informs the CT orally that he wants to discontinue or puts it in writing and gives it any law officer in his department to enter it into CT: CPL and CPCL), 71 & 72 ACJL (the ACJL is silent as to whether if the AG does not appear in person, then it can be in writing. Some authors state that the wording of ACJL means that both the AG and his law officers can go to CT and discontinue proceedings but in practice the AG gives a written document for law officer to enter in CT). NB: nolle prosequi can be entered when the case is at the trial CT and not when the case is on Appeal. AG cannot enter nolle during the appeal. The power of nolle is personal to the AG (AG Kaduna State v Hassan (1985)) and where there is no sitting AG, this power cannot be exercised unlike other powers of the AG, which can be exercised by law officers in the AG’s office even where there is no sitting AG and so the Solicitor General could not exercise this power. The AG’s power to institute proceedings cannot be done in a CT martial. The effect of a nolle prosequi is that the accused is discharged but he can be prosecuted afterwards with respect to the same offence. AG Federation cannot commence an action where it is purely based on state law and the same with AG State. However, where the law covers both federal and state law, either AG State or Federation can commence the action. Edet v State (1988): a case pending before magistrate CT and AG bypassed it (didn’t terminate this case) and instituted a case at the High CT. In taking over the case, the former case pending before the CT need not be concluded before the AG institutes a new action. CT said this did not amount to an abuse of CT process, although the Supreme Court acknowledged that it was desirable to withdraw the charge against the accused persons at the magistrate court. AG need not give reasons for decision to prosecute or not: Amaefule v State.
Nolle is a discharge and not an acquittal: Clarke v AG Lagos State
Police: s23 Police Act & s75 CPL & 130 CPCL: prosecute criminal cases in any CT in Nigeria (except CT martial) without the consent of the AG. Osahon v FRN (2000): Police can go as far to the Supreme CT. Contradictory as only legal practitioners can address the CT. However, the AG may take over, continue or discontinue any such criminal cases. Subject to the leave of Ct, the police may withdraw criminal case brought to CT; s75 CPL, s73 ACJL – a fine distinction btw these two Acts – restriction of this power to magistrate CT in CPL but not so in ACJL. In section 75 CPL, if the case is withdrawn, the police must give reasons as they require the leave of the CT to withdraw the case (distinct from power of nolle of AG). If such withdrawal is made in the course of any enquiry, the accused shall be discharged in respect of such enquiry. During trial, if withdrawal is before the accused is called upon to give his defence (effect is a discharge. If accused has been called upon to enter a defence (effect is an acquittal) but provided even where he has not been called upon to give a defence, it could be an acquittal if the magistrate who makes an order of acquittal feels that due to the circumstances of the case an acquittal is justified. The magistrate must record the reason for making such an order
Private persons: s59(1) & 342 CPL, 143(e) CPCL & s254 ACJL: may bring compliant to CT against an offender. Generally where police or AG are not wiling to bring a case but still subject to the powers of the AG (s59(1), s342 CPL: private person must get an endorsement saying that the AG or law officer has seen the case and he is not interested in prosecuting the case and they must give an undertaking that the private person will prosecute the case diligently and to logically conclusion. The AG can brief a private legal practitioner to act on his behalf, requires a fiat from the AG - Nafiu Rabiu v State (1980) SC, State v Gwanto (1983) SC. Private person must apply for Fiat but in the North no requirement for this). Under s143(e) CPCL private person may prosecute without the need to obtain consent of AG i.e. can compel the AG with an order of mandamus (NB: the AG can then enter a nolle prosequi). In practice, generally private persons prosecute for non-indictable offences. The provision of 342 CPL is different from that and s254a ACJL that a private person must provided as surety (100 in CPL and 10,000 for Lagos). A private person can withdraw a case but costs will be awarded against him.
AG Anambra State v Nwobodo – private persons with AG’s fiat. Prosecuting with AG’s fiat is prosecuting for the state. But where as just a private prosecutor, then put your name.
Special Prosecutors; NDLEA, Customs & Excise etc: Acts setting them up empower them to institute criminal proceedings but subject to AG. EFCC and ICPCL’s power is exercised under the powers of the AG. This is different from special prosecutors who prosecute for specific offences created by the Act not under the AG (Factories Act; Customs Management and Excise Act).
EFCC, ICPCL. S6m, 7(2)nd & 13(2) EFCC Act and s6(1) and 61(1)of the ICPCL Act
EFCC, ICPCL: Akingbola v FRN (2012): the former Intercontinental Bank boss
Ehindero v FRN (2014): a former IGP was charged of mismanagement of accounts and he raised objections that ICPCL cannot prosecute him without the consent of the AG. The CT said the ICPCL is subject to powers of AG but where the ICPCL institute criminal proceedings, the consent of the AG is implied. What does the CT mean by implied consent (is this a presumption of regularity: that something that should be done is assumed to be done). Perhaps the reason for this is because the ICPCL is seen an arm of the AG’s office
Special prosecutors: don’t have to be lawyers to prosecute and empowered by specific Acts to institute proceedings: s66 Factories Act which vest power of prosecution on the Inspector of Factories
(1) By bringing the person arrested without warrant before a magistrate on a charge signed by a police officer: s78(b) CPL; State v Okpegboro (1980) Ct held a law officer can also sign it (someone working in the AG’s office)
(2) Upon a compliant to the CT whether or not on oath that an offence has been committed by a person whose presence the magistrate can compel: s78(a) CPL
Magistrate in the North
By laying a complaint before a magistrate: s143(d) CPCL
By bringing a First Information Report (FIR) before a magistrate: s118 & 143(b) CPCL. Note: an FIR is just information before the CT and not a charge so the accused person will either say true or false to the FIR. When the magistrate is satisfied that there is a prima facie case, he will now draft the charge.
Sections 117, 118 and 143(b) of the CPCL. By this method, a suspect arrested usually without a warrant is brought to a Police station where the Front Desk Officer (FDO) listens to the complaint against him usually by the Investigating Police Officer (IPO). If the Police officer, usually the FDO, is satisfied with the information that a prosecution will serve public interest, he receives the complaint in writing in the form called “FIR” which is the First Information Report Form. If he is not satisfied, he may refuse the information and the alleged offender is released.
If the information is received, the same shall be read over to the alleged offender who will, upon satisfaction, sign it. The statement of the offender may be taken at this stage. Thereafter, the suspect and the FIR are taken before a Magistrate, who, if satisfied that the allegation is well founded, would direct the matter to the magistrate who has jurisdiction in the matter and if he has jurisdiction, he will continue – sections 157 to 160 of CPCL
Magistrate CT in Lagos
By bringing a person arrested with or without a warrant before the CT on a charge contained in a charge sheet signed by a law officer or police officer: s78(1) ACJL
High CT in the South
(1) By information in any of the following: instituting a formal document through a formal document called an information (called a charge in the North). Drafting an information is also different from drafting a charge
a) By filling information at the High CT with the consent of the High CT judge: s77(b) CPL, s340(2)
b) Signed by any public officer or person designated by Governor: s341(2)
c) By exhibiting an information ex-officio by the AG on simple offence
d) By information filed in the Court after the accused has been summarily committed for perjury by a Judge
e) By information signed by a private person
Consent of the High CT judge is required to file an information
(2) By laying a complaint before a judge whether or not on oath. Does not require consent but usually for non-indictable offence: DPP v Aluko; s77(b) CPL
High CT in the North
(1) By preferring a charge: s185(b) CPCL. After Leave of the High CT judge has been obtained. Procedure for obtaining leave is by motion ex parte or an application
(2) By laying a complaint before a High Ct judge: s143(d) CPCL
In Adamawa and Taraba States criminal matters are commenced in the High CT by way of information. This is made possible by reason of amended of the CPCL law of these States
High CT in Lagos
By information in any matter stated and consent is not required in Lagos: s77(1) ACJL
Federal High CT (CT of summary criminal jurisdiction)
By filing a charge against an accused in CT. No consent of judge is required
Same applies to the National Industrial CT
Application for consent to the information or prefer a charge
CPL does not make express provision: see s363 (resort to England) CPL
Thus resort to Indictment (Procedure Rule) 1971 in England
(a) In writing accompanied by a copy of the proposed charge or information
(b) An affidavit where applicant is not the AG to the effect that to the best of the person’s knowledge, information and belief the statements contained in the information are true
In Kano, where AG wants to apply to prefer the charge, he does not require consent. But his law officers need the consent of the High CT judge
(c) Proof of evidence of witnesses, exhibits, list of witnesses to be called etc (all the evidence that you have against the accused together with a statement that the evidence shown by the proofs will be available at the trial and that the case disclosed by the proofs is, to the best knowledge, information and belief of the applicant, substantially a true case
(d)unedited statement of the accused person and witnesses
(e) That there had been no committal proceedings
(f) Where an application has been previously made, this fact must be disclosed as well as the result of such application
Application for leave to prefer a charge in the North is regulated by the Criminal Procedure (Application to prefer a charge in the High CT) Rules 1970…..
In the High Ct of FCT, a Practice Direction 2014: modifies the CPCL Act of the FCT the way to bring application for leave to prefer a charge – where making an ex parte application seeking leave, the accused person must be present. It is still ex parte even though the accused is present. Note there are other modifications
A judge will satisfy himself that a prima facie case is disclosed before granting consent. Where consent is required before filing an information or preferring a charge, failure to obtain it nullify an proceeding thereto: AG v Clement Isong (1986) CT
WHAT AN ACCUSED MUST DO IF HE WANTS TO OBJECT TO GRANT OF LEAVE/CONSENT
Where the accused feels the leave was wrongly granted, he may apply by Motion on Notice supported by an affidavit that the Charge or information be quashed. The Motion should be moved immediately after the Prosecution’s opening address or before the plea is taken.
NB-Where an application for Leave or consent is not granted, a similar application to other Judges in the jurisdiction can be made until it is exhausted and a further one made to the Court of appeal. -
High CT, Lagos
Prosecutorial authority is exercised by the state using the name: The State of Lagos : s249 ACJL. The information must contain the details of the offence, dated and signed by the law officer presenting it to Court
Limitation of time for instituting criminal cases in CT
As a general rule, there is no time limit within which to commence criminal proceedings against an offender. In other words, proceedings may commence at any time after the commission of the offence. There are, however, some statutory exceptions:
Military offences (after retirement): 3 months
All militate offences except mutiny, failure to supress mutiny and desertion – 3 years
Sedition – Under section 52(1) of the Criminal Code, proceedings in respect of sedition must be commenced within six months.
Treason and Treasonable Felony – Under section 43 of the Criminal Code, criminal action in respect of persons and treasonable felony must be commenced within two years.
Sexual offences under s218, 221 Criminal Code – 2 months. Persons under the age of 13 or between 13-16years who is mentally disabled (imbecile)
Offences under CEMA – Under section 176(3) of the Customs and Excise Management Act, offences must be commenced within 7 years.
NB: how to do an application for leave (North)/consent (South) to prefer a charge/ or file an information: AG Federation v Isong: must establish a prima facie case. Where leave/consent is required and it is not obtained, the trial is a nullity (so fatal to the trial). Different methods of drafting this application (in the North and the most used is way of motion ex parte supported by an affidavit). Must have enough evidence against a person before the CT will allow you to file a charge. In the affidavit, state the offence and state that you are attaching the proposed charge sheet as EXHIBIT A, state you are attaching the proof of evidence (summary of your evidence: that X was seen by eye witnesses stabbing the person, the list of witnesses, that the knife used to stab the person is with the police, medical report that the stab wound caused the death, state that it is the first time you are making the application as it is the only procedure where if the application is taken by a judge and he refuses to grant leave/consent, the application can be taken to another judge of coordinate jurisdiction: a unique/special procedure as you don’t have to go on appeal when the application is refused the first time or state that you have previously filed the application in Court 1 and the judge refused to grant the application) - Gali v The State (1974). Here only photocopies of these exhibits are attached and as an ex parte application, the accused is not present and it is generally done in Chambers. Held in State v Abacha: leave can be obtained by way of letter asking for consent addressed to high CY judge or by motion ex parte or by way of recital (whereas the person was arrested on, state all the other facts. NB: no consent is required in the Federal High CT but leave required in the State High CT.