Criminal Litigation Note

PREPARED BY MOBOLAJI DAVIDSON OJO, ESQ AND EMMANUEL OMOLE, ESQ
LEGUM DE BAR
NOTES ON
CRIMINAL
LITIGATION
READ AND BE DELIVERED FROM YOUR VILLAGE PEOPLE, LOL.

SOURCES OF THE LAWS/RULES GUIDING CRIMINAL LITIGATION IN

NIGERIA.
PRINCIPAL ENACTMENTS
1. Criminal Procedure Laws (applicable to Southern States other than Lagos).
2. Criminal Procedure Code Laws (applicable in the Northern States).
3. Administration of Criminal Justice (Repeal and Re-enactment) Law of Lagos State 2011.
4. Administration of Criminal Justice Act 2015.
SECONDARY ENACTMENTS
1. 1999 CONSTITUTION of the Federal Republic of Nigeria (as amended).
2. Evidence Act 2011.
3. Rules of Professional Conduct for Legal Practitioners, 2007.
4. The Police Act.
5. The Armed Forces Act.
6. Coroners‘ Laws of the States.
7. Children and Young Persons Law.
8. Magistrate Court Laws.
9. High Court Laws.
10. Court of Appeal Act.
11. Supreme Court Act.
12. Various court rules.
13. Practice Directions
Application of English High Court Rules of Practice and Procedure, this source is important when there is
lacuna. SECTION 262 OF ACJL (Lagos) provides that when there is a lacuna, the court shall adopt such
procedure which will in its view do substantial justice between the parties concerned. SECTION 492(3) ACJA.
When there is a lacuna, recourse should be had to a procedure that will do substantial justice to the case.
TYPES, SITTINGS AND SETTINGS OF COURT
TYPES OF COURT
Courts of general criminal jurisdiction (empowered to try and adjudicate on any criminal case). Examples:
Supreme Court, Court of Appeal, High Courts, Magistrate Courts, Upper Area Courts and Area Courts (both
North).
Courts of Special criminal jurisdiction (empowered to try and adjudicate specific offences) Examples: Federal
High Court, National Industrial Court, Juvenile Court, Court Martial, Code of Conduct Tribunal, etc.
SITTINGS OF COURT
 Juridical Days - MON-FRI.
 Non Juridical Days - SAT, SUN, COURT VACATION PERIODS AND PUBLIC HOLIDAYS.
Legal proceedings held on Non Juridical Days are a nullity - BALOGUN V. ODUMOSU, with the following
exceptions:
a) Parties agreement - OSOSANMI V. C.O.P.
b) Statute authorizes it (Magistrates sit on Saturdays for bail and remand orders and non-custodial
disposition) - S. 40 (2) MCL.
c) Can sit on Saturday to hear election petition matters. The court start sitting from 9 O‘clock in the
forenoon or so soon thereafter and until the court rises for the day.
SETTINGS OF CRIMINAL COURT

In the setting of a court, the following are found.
1. The Bench: this is where the judge or magistrate sits.
2. The Registrar‘s Desk: where registrar and other court clerks sit. It is beneath the bench.
3. The Bar: this is where lawyers who are ready for litigation business sit. They must be robbed. Robbing
is not compulsory in Magistrate court. Rule 45 RPC provides for robbing in High Court, Court of Appeal and
Supreme Court. There is the Inner Bar for SAN, Attorney Generals and Life Benchers and the Outer Bar for
other lawyers. In court the first roll is left for those meant to sit in the inner bar. This is when there is no
inner bar. The new Lagos High Court rooms now have inner bar different from the outer bar on the side.
4. The Dock: this is where an accused person sits/stands. It is to the left hand side of the judge.
5. Witness box: this is where witnesses stand to give evidence after they might have sworn on oath or
affirmed. This is to the right hand of the judge. The witness can decide not to swear on oath and affirm and
still give evidence – s. 207 & 208 EVIDENCE ACT.
6. Gallery: this is where lawyers that are not robbed sit and complainant and other spectators sit.
JURISDICTION AND VENUE
Thus, a crime may be partially, substantially or conclusively committed in one state. In such case, only that
state will have jurisdiction to hear such criminal matter. An element or some elements of the crime may be
committed in different jurisdictions,
SEE THE FOLLOWING PROVISION: 12A criminal Code, section 11 Criminal Law of Lagos, Section 4(2)(b) of
Penal Code, Section 93,96-98 ACJA, Section 58-63 ACJL.
As a general principle, where a crime is committed in an area and all the ingredients and elements of the
offence was committed in the area, only the state of the area will have jurisdiction- Section 12A(1)
 Section 12A (2)(a)- where several elements of the crime are committed in different states, or several
offences are committed in different states, those states all have jurisdiction. Patrick Njovens & ors v State.
 Where all persons who committed an act or an omission come into another state thereafter, where no
element of the offence occurs, the state where the offenders relocated to will have jurisdiction to try the
matter as the offence will be deemed to have occurred in the state.
Where an OFFENCE is only constituted under the Penal Code, it cannot be instituted in the South upon the
authority of Aoko v Fagbemi, Section 36(12) of the 1999 Constituted. The court in the south will not have
substantive jurisdiction.
PLEASE NOTE: The principle that offences are territorial has its application to the Federal High Court albeit
there is only one federal High court with judicial divisions by virtue of section 19 of the FHC Act, ABIOLA V
FRN. However, where an offence with all its elements was committed in a particular judicial division, then
that judicial division will be seised of such matter. Except the Chief Judge makes an Order that the matter be
heard in another judicial division. Section 45 FHC Act. IBORI V FRN.
However, where offences have initial and subsequent elements in different states, the matter can be
instituted in any of the states.
TERRITORIAL JURISDICTION OF THE STATE HIGH COURT

Section 272(1) of CFRN provides that the High Court of a state shall hear and determine any criminal
proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an
offence committed by any person.
The foregoing covers the substantive jurisdiction of the State High Court. Section 12A of Criminal Code and s.
4(2)(b) of Penal Code are the relevant provisions on territorial jurisdiction. When an act or omission which
would constitute a crime occurred within the territory of a state, the SHC would have jurisdiction.
There are however instances where the elements of the crime occurred in different territorial jurisdiction. The
law seems to be firmly settled that where the initial elements of an offence occur in one state and other
elements of the offence occur in another state both states would have jurisdiction to try the offence.
TERRITORIAL JURISDICTION OF THE FEDERAL HIGH COURT

Section 249 of CFRN provides that there shall be one FHC for the federation of Nigeria- ABIOLA V FRN.
Section 251(2) & (3) CFRN and section 7 of FHC Act provides for its substantive criminal jurisdiction. The
constitution is however silent on its territorial jurisdiction. However the FHC Act has relevant provisions on
its territorial jurisdiction. Section 19 FHC Act empowers the chief judge of the FHC to divide the federation
into such number of judicial divisions for administrative convenience.
In Abiola v. FRN, where the accused has been charged before the FHC, Abuja judicial division for treason and
treasonable offences alleged to have been committed in Lagos state, the Court of Appeal had stated that the
territorial jurisdiction of the FHC is nationwide and it shall exercise jurisdiction throughout the federation.
However, in IBORI v. FRN, where the offence had been committed in Delta state and the accused was brought
before the Kaduna division of the FHC. The Court of Appeal held that in accordance with section 45(a) of FHC
Act, such was forum shopping in the absence of any direction from the chief judge. The Court of Appeal had
relied on s. 19 and 45 of the FHC Act.
Please Note: The NIC has about the same principles with the FHC.
COURTS OF CRIMINAL JURISDICTION

There are the Courts of General Criminal Jurisdiction, and the Courts of Special Criminal Jurisdiction. Under
the Courts of General Criminal Jurisdiction, there are courts of Original General Criminal Jurisdiction and
Courts of Appellate General Criminal Jurisdiction. The Courts of General Criminal Jurisdiction are:
 Area/Customary Courts
 Magistrate Court
 High Courts of State/FCT, Abuja
 Court of Appeal
 Supreme Court.
They are so called because they have power over all crimes and all persons, but there are still areas related to
persons and subject matter that are removed from their jurisdiction. Thus it is for the purpose of
convenience.
The Courts of Special Criminal Jurisdiction are:
 Federal High Court
 National Industrial Court
 Court Martial
 Juvenile Court
 Coroner‘s Court
 International Criminal Court
They are so called because they only have power over specific subject matter and persons.
SUPREME COURT:
In criminal matters, it has only appellate jurisdiction. But in civil matters it has both original and appellate
jurisdiction.
COURT OF APPEAL:
In criminal matters, it has only appellate jurisdiction over matters from the FHC, NIC, State High Courts and
Court martial. Section 240 1999 CFRN, SECTION 183 ARMED FORCES ACT.
MAGISTRATE COURT
Magistrate Court – Lagos, governed by Magistrate Court Law 2009.
 There are no grades of Magistrate court in LAGOS, only one cadre. The hierarchical order has been
abolished. s. 93(1) MCL.
 There is a uniform Magistrate court.
 They can try all offences except capital offence. MANSLAUGHTER is not a capital offence. Only culpable
homicide punishable with death in the north and murder are capital offences. Culpable homicide not
punishable with death in the north is not a capital offence.
 In Lagos, There is a limitation on the sentences they can impose, which is 14 years – s. 29(5) MCL.
 Magistrate courts in Lagos, must not impose a fine or sentence exceeding that provided for the law
creating the offence.
If the sentence provided for by the law creating the offence is 20 years, a Magistrate court cannot impose a 20
years sentence, it has to be 14 years or less than. The sentencing power of the Magistrate court is limited to
14 years imprisonment. There is a difference between jurisdiction to try offences by the magistrate court and
jurisdiction to impose punishment or sentences.
 Magistrate court have jurisdiction in respect of summary trial – section 29(2) MCL.
 The power to increase the jurisdiction of the magistrate to impose punishment exceeding that
prescribed shall be exercised by the AG of the state on recommendation of the Judicial Service Commission of
the Lagos state. Section 27 MCL. OTHER STATES, INCREASED on the recommendation of the Chief Judge by
a law passed by the SHOA duly signed by the Governor.
 In Lagos, when a magistrate is to impose consecutive sentences (run one after the other), the sentences
must not exceed 14 years.
 The jurisdiction is over indictable and non-indictable offences, other than capital offences.
MAGISTRATE COURTS IN THE NORTH
SECTION 418(2) ACJA provides that a magistrate court may pass two or more sentences on a defendant to
run consecutively. Where this is the case, the aggregate term of imprisonment shall not exceed four years of
the limit of jurisdiction of the magistrate. Where a sentence of imprisonment is imposed, the sentence takes
effect from the date the sentence is imposed pursuant to section 419 ACJA.
HIGH COURT
Section 272(1) CFRN confers criminal jurisdiction on the state high court. It has jurisdiction in the following
cases:
 All indictable offences contained in an information
 Where the constitution or any other law creating an offence expressly confer jurisdiction on it
 All non-indictable offences brought by complaint or any other mode provided/prescribed by law. See
DPP v. Aluko, R v. Onubaka
 Criminal appeal from magistrate court.
 Federal offences within its jurisdiction – section 286(1)(b) CFRN 1999
 It hears appeals from magistrate courts.
 The magistrate may also state a case to the HC under section 295 CFRN.
 In the north, SECTION 257 CPC, a magistrate court may refer a case to the High Court for stiffer
punishment where the magistrate is of the opinion that it cannot adequately punish for the offence
The state high court share concurrent criminal jurisdiction with the federal high court in the offences created
under s. 251(3) CFRN. Also with the National Industrial Court.
AREA COURTS
The area courts are constituted by Area Courts Edict and established by warrant under the hand of the chief
judge of the state. In FCT, Abuja, there are two grades.
 Upper area court – unlimited except homicide. That is, the jurisdiction to impose punishment of upper
area courts in Abuja is unlimited except in homicide cases. It cannot try homicide cases and other capital
offence.
 Area court grade 1 - 5 years or N1, 000 fine; Area court grade 2- 3 years imprisonment or N600; or Area
court grade 3, 9 month imprisonment or N100 fine.
They have jurisdiction to try offences in column 7 of Appendix A to the CPC. In FCT, it is only when the judge
of the Area Court is a qualified lawyer that it can have jurisdiction over criminal matters and are bound by
the rules of evidence.
The Area court shall have jurisdiction over the following persons – s. 15(1)(a)-(c) ACL:
1) A person whose grandparents were members of any tribe indigenous to some parts of Africa and the
descendants of such person.
2) A person, one of whose parents was a member of a tribe indigenous to Africa; and
3) A person who consents to be tried by the court- A Brit can be tried before the area court where he
consents to.
JUVENILE COURT:
It is constituted by the Children and Young Persons Law. The Juvenile court has jurisdiction over young
persons or juvenile offenders which are categorized into two:
 Children – a child under the age of 14 years
 Young person – a person who has attained the age of 14 years and under the age of 18 years. Section 2
CYPL, section 30 Criminal Code.
The jurisdiction of the court is determined by the age of the offender. There are two cases where the juvenile
court will not have jurisdiction over a juvenile offender. These are:
 Where the charge is one of homicide/capital offence – s. 8(2) CYPL. The juvenile can be charged in the
regular courts. However, the Juvenile courts can make preliminary enquiry.
 Where a juvenile is charged together with an adult, the young person will be charged with the adult in
the regular courts – s. 6(2) CYPL. GUOBADIA V STATE.
Determination of age can be through:
1. Birth certificate; direct/documentary evidence
2. Oral evidence of parents or guardian
3. Expert Evidence- Medical evidence from a registered medical doctor in a government hospital, this
would be preferred to oral evidence of parents where they conflict.
Features of Juvenile courts are:

 The proceeding is not to be held in public UNLESS WITH THE LEAVE OF THE COURT.
 The identity of the offender not to be published without the leave of court.
 The words 'Sentence' and 'conviction' are not to be used, rather a FINDING OF GUILT IS MADE.
 No child shall be imprisoned.
 No young person shall be ordered to be imprisoned unless he cannot otherwise adequately be dealt
with.
 No young person imprisoned shall be allowed to associate with adult prisoners.
CORONER’S COURT:
 It is a court of inquest not trial. Inquiry into death and circumstances of death. Eg. of mandatory
inquest: Lunatic asylum, police custody, execution of death sentence, violent or unnatural death, died a
sudden death- Section 4 and 6 Coroners‘ System Law Lagos.
 The coroner (magistrate sitting in the court) calls witnesses to take evidence. However, they cannot
sentence any person but upon the verdict, an application can be given to the AG to institute criminal
proceedings.
 It is not a real court of law because it does not hold or conduct trials. It holds an inquest into the cause
of death of a person who died in public place. Where the person is already charged to court or about to be
charged for the offence, coroner cannot commence or continue any inquest into the death of the deceased
until the determination of the case. See ADEPETU v. STATE.
 What the Coroner must determine?
 Identity of deceased
 Time and place of death
 Cause of death
COURT MARTIAL:
 The court martial entertains only matters against persons subject to SERVICE LAW as provided for in
section 130 Armed Forces Act (AFA). Service Law here entails Nigerian army, navy, or Air Force. Such
person must be subject to service law. Upon retirement within 3 months such persons can be tried in the
court martial. However, where it is the offence of mutiny and failure to suppress mutiny, there is no time limit
within which to try the person in the court martial. – NAF V OBIOSA.
 The court martial is established by the Armed Forces Act. The Act was a consolidation of pre-existing
legislation on the subject.
 Nigerian army Act;
 Air Force Act;
 Navy Act.
 There are two types of courts martial
a. General court martial consisting of a president and not less than four members, a waiting member, a
liaison officer and a judge advocate.
b. Special court martial consisting of a president and not less than two members, a waiting member, a
liaison officer and a judge advocate.
The Waiting Member and liaison officer are not to be counted as they are regarded as adjuncts to the
court. The absence of a waiting member and a liaison officer does not nullify the proceedings. See OBISI v.
CHIEF OF NAVAL STAFF. Thus the Police and Custom officers are not subject to service law. The court has
jurisdiction over military offences and civil offences that are not military in nature. Military offences includes:
insubordination, absence from duty, drunkenness, etc.
 WHO CAN CONVENE A COURT MARTIAL? To convene means to set up a court martial.
 By virtue of s. 131 of Armed Forces Act, the following persons can convene a court martial:
 The President of FRN
 The Chief of Defence staff
 Service Chiefs
 A general officer commanding a brigadier, a colonel or lieutenant colonel or corresponding rank
having command of a body of troops or establishments, or a commanding officer of a battalion.
 An officer acting in place of the above officers.
 CAN THE POWER TO CONVENE BE DELEGATED?
 Yes it is delegable. Nigerian Air Force v Obiosa the Court of Appeal held that the power to convene a
court martial was delegable. The constituting authority can delegate to superior officers.
 However see section 131(4) ARMED FORCES ACT. The delegation cannot be done orally, as there must
be a convening order in writing which is mandatory- BAKOSHI V CHIEF OF NAVAL STAFF. Subsequent order
in writing, validates the oral instruction which is defective.
 CONSTITUTION OF A GENERAL COURT MARTIAL- SECTION 129(a) AFA.
 President
 At least 4 members
 A waiting member
 Liaison officer
 Judge advocate
 Constitution of a Special Court Martial: 129(b)
 President
 At least 2 members
 A waiting member
 Liaison officer
 Judge advocate.
 Please Note that the members must be of 5 years in service. Section 133(2).
 The judge advocate must be a commissioned officer and legal practitioner of not less than 3 years post
call. A judge advocate guides and advises the court on rules of evidence, practice and procedure.
 Please note: For the constitution of the court martial to be proper, the president must be above or of the
same or equivalent rank and seniority of the accused while the members must be of the same rank and
seniority of the accused. Section 133(3)(B) AFA. Seniority in this case is that the officer must have been
appointed before the accused in the case they are of the same rank.
 If you convene the court martial, you cannot be a member of the court based on the principle of nemo
Judex in causa sua. SECTION 134 AFA.
 JURISDICTION
 Offences: both military and civil offences
 What constitutes military offence?s. 45-103 AFA
 What constitutes civil offences? S. 104-114 AFA.
 Can a person subject to service law be tried in the civil court? Yes. But the person cannot be tried for
military offence in a regular court.
 He can be tried by the regular courts thereafter for the civil offence but the civil court can also punish
but will take into consideration the punishment given by the court martial in awarding punishment. (Thus a
plea of autro fois convict or acquit/double jeopardy based on section 36(9) of the 1999 Constitution will not
be taken). SECTION 170(2) AFA.
 Trial first by a competent civil court- it will oust the jurisdiction of the court martial- Section 171 AFA.
 The decision can be appealed to the Court of Appeal and then the Supreme Court.
 By virtue of s. 169 of the Act, a person who has ceased to be subject to the service law can still be tried
by the court martial within 3 months of his hearing.
SEARCHES, ARREST AND CONSTITUTIONAL RIGHTS
ARREST
The major thing about arrest is that the person to be arrested must know that his movement has been
curtailed and as such infringed on his right to personal liberty provided for by S. 35 CFRN. Often times,
arrest precedes search and vice versa. Thus, it depends on the circumstances. All the law enforcement
agencies are empowered to effect an arrest, including a private person.
The three processes of bringing a suspect to court are:
 Arrest with warrant;
 Arrest without warrant; and
 Summons.
ARREST WITH WARRANT

A warrant of arrest is an authority in writing to a police officer or any other person directing the officer or
person to arrest a named offender and bring him before the court to answer to a complaint made against him.
S.80 CPL and S.113 ACJA.
It is within the discretion of the issuing authority to elect whether to issue a warrant of arrest at first instance
or to issue a summons instead (depends on the circumstances of the case). S.80 CPL, S.154(1) CPCL and
S.114 ACJA.
NB: There is a difference between a summons and a warrant of arrest. Summons is issued and directed or
addressed to the offender while a warrant of arrest is issued to the police officer or any other person.
ISSUANCE OF WARRANT OF ARREST

Authority that may issue a WoA (Who can issue it?).
a) Judge, (North and South).
b) Magistrate (North and South) or
c) Justice of the peace (North only, ACJA is silent).
NB: From the foregoing, it is crystal clear that a Police officer, no matter the rank cannot
issue a warrant of arrest. — S. 22(1) ACJL, S.22(1) CPL, S.56(1) CPCL, S.36(1) ACJA.
To whom is the warrant directed to:

i. Named police officer---S. 25(1) CPL, S. 58(1) CPCL, S. 39(1) ACJA.
ii. Members of the police—S. 25(1) CPL, S. 58(1) CPCL, S. 39(1) ACJA or
iii. Private persons---S. 27(1) CPL, S. 40(1) ACJA.
Where a warrant of arrest is directed to a private person, he is for the purposes of that arrest seen as a law
enforcement agent in the eyes of the law and shall have all the powers of a police officer for the purposes of
the arrest.—S. 27(2) CPL, S. 40(2) ACJA, and where necessary, reasonable force may be used.
Circumstances where use of force is allowed:
i. Reasonable apprehension of violence;
ii. Order of court to that effect;
iii. Attempt to escape;
iv. Safety of the suspect/person effecting the arrest.—S. 2 ACJL, S.3 CPL, S. 37 CPCL, S.5 ACJA.
How do you make a complaint for warrant of arrest?; By complaint in writing and on oath S. 23 ACJL, S. 23
CPL, 37 ACJA. Under the CPCL, a magistrate may issue a warrant of arrest once a complaint discloses an
offence even if the complaint is not on oath.
DAY OF ISSUING A WARRANT OF ARREST

It may be issued on any day including a Sunday or public holiday – S.24 ACJL, S. 24 CPL and S. 38 ACJA.
CPCL is silent on this but generally, it can be issued on any day.
A warrant of arrest is issued in the following circumstances:
1. Law stipulation: the law creating the offence provides that the offender cannot be arrested without
warrant; or
2. Disobedience of summons: Where a summons is disobeyed – S. 94 ACJL, S.96 CPL, S. 70(1)(b) CPCL.
3. Serious offence: Where the offence alleged to have been committed is a very serious offence.
CONTENTS OF A WARRANT OF ARREST

By S. 22(1) & (2) ACJL, S. 22(1) & (2) CPL, 36 ACJA, the following are the contents of a valid warrant of
arrest:
a) The name and particulars of the alleged offender.
b) The concise statement of the alleged offence.
c) An order directing the police officer(s) or other person, to whom is addressed, to arrest and bring the
offender named in the warrant. A warrant of arrest is issued to, directed to and addressed to a police officer
by name or to all police officers. See section 25(1) CPL; section 25(1) ACJL; and section 58(1) CPCL, 39 ACJA.
However, the warrant of arrest may be addressed and directed to other public officers who may be authorized
to make an arrest. Also, if immediate execution is necessary and no police officer or other public officer is
immediately available, the warrant of arrest may be directed to other person or persons. In essence, a warrant
of arrest addressed ―TO WHOM IT MAY CONCERN‖ or other such addresses is wrong.
d) The date of issue of the warrant.
e) Signature of the issuing authority. That is, whether judge or magistrate or justice of peace in the north.
A warrant of arrest must be in writing and in duplicate.
LIFE SPAN OF A WARRANT OF ARREST

Once a warrant of arrest is issued, it shall remain in force until it is either executed or cancelled by the
authority that issued it. Once executed, the warrant lapses and cannot be subsequently used. S. 25(2) ACJL.
Warrant of arrest is still in force even after the issuer is dead, vacates office or retires. - S. 100 ACJL, S. 303
CPCL, S. 139 ACJA.
EXECUTION OF WARRANT OF ARREST

A warrant of arrest is executed when the police officer or other person to whom it is addressed arrests the
person named in the warrant.
WHERE CAN A WARRANT OF ARREST BE EXECUTED?

Generally, it can be executed at any place. However, it is not to be executed:
 In an actual court room in which a court is sitting, except with the permission of the court. Thus, if the
judge is still in chambers, an arrest can be made in the court room (anywhere the judge sits in his official
capacity is the courtroom).— NB: Under the CPCL, it can be executed at any place in Northern Nigeria. - S. 63
CPCL. The implication is that it can be executed in a courtroom with a sitting judge.
 The current position of the law is that no MEMBER (not staff) of the National Assembly or State House
of Assembly shall be arrested within the precincts (the whole premises) of these legislative houses. - Ss. 23(b)
and 25 LEGISLATIVE HOUSES (POWERS AND PRIVILEGES) ACT, 2017.
When the person to effect the arrest is not with warrant of arrest in his possession during the point of
execution. He can go on to effect the arrest but the warrant of arrest shall be shown to the suspect as soon as
practicable. - S.28 ACJL, S. 29 CPL, S.61 CPCL, S.44 ACJA. Under the
ACJL, as soon as practicable means ―within 24hrs from the time of the arrest‖ else the arrest becomes an
unlawful arrest.
PROCEDURE AFTER ARREST

 Such a person arrested is to be brought before the court that issued the warrant of arrest as soon as
practicable after he is so arrested. S. 28(4) CPL.
 The suspect is to be taken immediately to a police station, or other place for the reception of suspect.
 The suspect shall be promptly informed of the allegation against him in the language he understands.
 The suspect shall be given reasonable facilities for obtaining legal advice, access to communication for
taking steps to furnish bail and otherwise making arrangement for his defence or release.
 The legal advice shall be done in the presence of the officer who has custody of the arrested suspect. -
S. 14 ACJA.
NB: Arrest in lieu is prohibited—S. 4 ACJL, S.7 ACJA. This does not however prohibit
going against sureties of the suspect. Furthermore, you don’t arrest based on a civil wrong---S. 8(2)
ACJA, unless there is some element of criminality.
EXECUTION OUTSIDE JURISDICTION

 Execution within the state but outside magisterial district or judicial division of the issuing authority; or
 Execution in another state.
Procedure for execution within the state but outside magisterial district or judicial division of the
issuing authority.
a) Effect the arrest without taking the warrant to any Magistrate or Judge in that location for
endorsement.
b) Take the suspect to the Magistrate or Judge in that location to do any of the following:
 Endorse removal (after being satisfied that the issuance of the warrant was according to law and was
made by a competent authority).
 Grant the suspect bail (if it is a bailable offence or the warrant was endorsed with bail by the issuing
authority with regard to the bail conditions contained therein).
Procedure for execution in another state
a) Take the warrant to the Magistrate or Judge in that state for endorsement and Magistrate or Judge
before the endorsement must establish and answer the following in the positive:
 Is the alleged act or omission an offence in the state where the warrant was issued?
 Was the warrant issued by a competent authority?
b) Effect the arrest and bring the suspect back to the endorsing M or J who will now
 Endorse removal (Permit the arresting authority to take the suspect to the issuing authority); or
 Grant the suspect bail if it is a bailable offence or the warrant was endorsed with bail. MATTARADONA
V. ALU
NB: A warrant of arrest issued by a FHC sitting in anywhere in Nigeria may be executed in any part of
Nigeria. This is so because there is only one FHC in Nigeria with judicial divisions all over the country.
ABIOLA V. FRN.
ARREST WITHOUT WARRANT

An arrest without warrant can be made by three categories of persons, namely:
 Police officers;
 Judicial officers;
 Private persons
THE POLICE OFFICERS

Cases in which police officer may arrest without warrant are provided under:
1. When an offence is committed in his presence whether an indictable or non-indictable, even when the
law says a warrant should be issued.
2. When he reasonably suspects a person of having committed an indictable offence (punishment exceed 2
years imprisonment or fine) under any federal or state law unless a warrant is mandatory.
3. Where goods with a person is reasonably suspected to be stolen or unlawfully obtained.
4. When he suspects a person to be a deserter from any of the Armed Forces of Nigeria.
5. When a person obstructs a police officer while carrying out his duty.
6. When a person is found taking precaution to conceal himself and it is reasonably believed that he is
taking such precaution with a view to committing a crime.
7. When a person is having in his possession instrument of house-breaking without excuse.
8. When he reasonably believes that a# warrant of arrest has been issued against such person by a
competent court.
9. When he reasonably suspects a person of having committed an offence outside Nigeria of which if
committed in Nigeria would amount to an offence.
10. A person who has no ostensible means of subsistence and who cannot give a satisfactory account of
himself.
11. When a person has escaped lawful custody.
NB: A person arrested on the authority of a warrant cannot be re-arrested based on the same warrant.
Where a person or police officer acting under a warrant of arrest or otherwise having authority to arrest, has
reason to believe that the suspect to be arrested has entered into or is within any house or place, the person
residing in or being in charge of the house or place shall, on demand by the police officer or person acting for
the police officer, allow him free access to the house or place and afford all reasonable facilities to search the
house or place for the suspect sought to be arrested - S. 12(1) ACJA.
Where access to a house or place cannot be obtained under subsection (1) of this section, the person or police
officer may enter the house or place and search it for the suspect to be arrested, and in order to effect an
entrance into the house or place, may break open any outer or inner door or window of any house or place,
whether that of the suspect to be arrested or of any other person or otherwise effect entry into such house or
place, if after notification of his authority and purpose, and demand of admittance duly made, he cannot
otherwise obtain admittance - S. 12(2)ACJA.
If a police officer arrests a person without a warrant, he shall take such person with all reasonable dispatch
to a police station or other places for the reception of arrested persons. Ss. 9(1) ACJL, 9(1) CPL, 14 ACJA.
JUDICIAL OFFICERS (Judge, magistrate, Justice of the Peace)

A judge or magistrate or justice of peace (north) may himself arrest or order any person to arrest anyone who
commits an offence in his presence within the division or district to which he is assigned. Also, they may
arrest or direct the arrest in their presence of a person whose arrest upon a warrant can be validly issued by
them - S. 16 ACJL.
PRIVATE PERSONS
Under S. 12 ACJL and S. 12 CPL, a private person may arrest without warrant where there is:
c) Felony commission: any person who he reasonably suspects of having committed an offence which is a
felony; or
d) Misdemeanour commission: any person who he reasonably suspects of having committed by night, an
offence which is a misdemeanour.
e) Indictable offence commission: any person who commits an indictable offence (i.e. an offence triable on
information) in his presence.
Under CPCL in S. 28, there are categories of persons which a private person may arrest:
a) A person who has escaped from lawful custody.
b) A person required to appear by public summons.
c) Any person committing an offence in his presence for which the police are authorized to arrest without
a warrant.
d) A person whom an arrest warrant has been issued against or directed by justice of peace to be arrested.
NB: A private person effecting arrest without warrant must without unnecessary delay deliver the
suspect to a nearest police officer or in the absence of a nearest police officer, must take the suspect
to the nearest police station. S. 23 ACJA. See also DALLISON v. CAFFERY.
Furthermore, a private person effecting an arrest may render himself liable in damages for false
imprisonment if he fails to hand over the person arrested to a police officer or take him to the nearest
police station without undue delay--JOHN LEWIS & CO Ltd v. TIMS. AND when the person arrested is
taken to the police officer or police station, the police officer shall re-arrest him.
EFFECT OF IRREGULARITY IN PROCEDURE FOR ARREST

The trial of an accused person shall not be affected by reason of any defect in the issuance of the warrant
with which he was arrested or the irregularity in the procedure of his arrest or his custody after his arrest.
OKOTIE v. COP. Thus, it is only the arrest that is unlawful. At best if the fundamental right of the accused
was breached, civil action can be maintained jointly and severally against the person who made the false
complaint and against the arresting officers for damages. Thus, sue the person and join the police as party to
the suit. ELIAS V. PASMORE.
SEARCHES
Search: search simply means the examination of a person's body, premises or thing. The purpose of a search
is to obtain evidence of the commission of a crime.
Search could be of:
1. Person.
2. Premises.
3. Property.
SEARCH OF PERSONS
The following RULES should be noted:
 No search warrant is needed here.
 A police officer can detain and search any person whom he reasonably suspects to have anything in his
possession, which he has reason to believe may have been stolen or otherwise unlawfully obtained. S. 29
Police Act.
 A police officer making an arrest or receiving an arrested person who was arrested by a private
individual, may search the arrested person or cause him to be searched (CPL & ACJL add that the police
officer can use such reasonable force as is necessary to conduct the search).
 After such search is conducted, the police officer shall place, in safe custody, all articles recovered from
the person searched, except his necessary wearing apparel (CPCL adds that the police shall make a list of the
items found. Section 6(a) ACJL.
 The law permits medical or scientific examination of any person (reasonably suspected of concealing
incriminating item in any latent part of his body) on request of a police officer. However, where no such
medical practitioner is procurable, then the police officer or any person acting in good faith in aid and under
the direction of the police officer may conduct the medical examination. See section 5(6) ACJL.
 Under CPCL, by section 127(1) thereof, the medical examination is conducted at the request of either a
police officer or a Justice of the Peace. Where no such medical practitioner is available, then the medical
examination is to be conducted by a dispensary attendant. See section 127(1) CPCL.
 Where the person to be searched is a woman, the search shall only be conducted by another woman.
See section 6(2) CPL and section 44(3) CPCL. Further, section 82 CPCL provides that whenever it is necessary
to cause a woman to be searched, the search shall only be made by another woman, with strict regard to
decency. It must be noted that under CPL and CPCL, there is no provision for the search of a man by a man,
but in practice, a man is usually searched by a man. Note that under CPL and CPCL, the search of a man by
a woman is not unlawful, but it is unlawful under ACJL. On its part, the ACJL provides in section 5(2) ACJL
that whenever it is necessary to search a person, he shall be searched by a person of same sex with due
regards to decency. Thus, a man is to be searched by a man and a woman is to be searched by a woman.
Sections 9(3), 149(3) ACJA, unless the urgency of the situation or interest of justice makes it impracticable
for the search to be carried out by the person of the same sex. However, by section 5(3) ACJL and section 6(3)
CPL, the limitation on the search of# a woman is only limited to her person and does not apply to the things
she is carrying like her handbag etc. see section 5(3) ACJL and section 6(3) CPL, 9(4) ACJA.
SEARCH OF PREMISES
As a general rule, premises cannot be searched without a search warrant. Thus, any search of any premises
without a search warrant is unlawful and a breach of section 37 CFRN.
The exceptions to this rule are:
 A police officer acting under a warrant of arrest or otherwise having authority to arrest has reason to
believe that the person to be arrested has entered into or is within any premises, the police officer can enter
into the premises to search for the person to be arrested, notwithstanding the fact that he had no search
warrant. See section 7 ACJL.
 A justice of the peace may direct search in his presence. — S. 85 CPCL.
 A custom officer may enter or break into a place where he reasonably believes that illegally imported
goods are kept.
 Acting upon an order of court for the release of an unlawfully abducted person.
 If the police or any other person who is executing a search warrant of premises reasonably suspects any
person of concealing about his person, articles for which a search should be made, such a person shall be
searched: S. 112(3) CPL, S. 81 CPCL.
 Warrant of arrest comes with an implied authority to search person upon whom search is to be
conducted.
 The Nigerian Security and Civil Defence Corp do not need a search warrant to enter premises where
there is a reasonable belief that government property is being unlawfully harboured.
Who can issue a search warrant?

There are four categories of persons that can issue a search warrant. They are
i. Magistrate,
ii. Judge,
iii. Justice of the Peace, and
iv. Superior Police Officer above the rank of a Cadet ASP, subject to some restrictions. A police officer
above the rank of ASP can issue a search warrant in limited circumstances. He can authorise any police
officer to enter into any premises in search of stolen property and he may search therein and seize and secure
any property he may believe to have been stolen and where the premises to be searched is, or within the
preceding twelve (12) months, has been in the occupation of any person who has been convicted of Receiving
stolen property; harboring thieves or any offence relating to fraud or dishonesty and punishable by
imprisonment.
 Every search warrant issued must be signed by the Magistrate or other issuing authority that issued it.
See section 106(1) ACJL; section 146(1) ACJA.
 Every search warrant shall remain in force until it is either executed or cancelled by the Court which
issued it. See section 106(2) ACJL; section 146(2) ACJA. Once it is executed, it can no longer be subsequently
used.
 A search warrant may be directed to more than one person and when directed to more than one person,
it may be executed by any or all of them. See section 107 ACJL; section 110 CPL, section 147 ACJA.
 On demand by a police officer or other person executing the search warrant, the person in occupation of
the premises to be searched must give free access (free ingress and egress) and afford all reasonable facilities
for the search. See section 109(1) ACJL; section 112(1) CPL, section 149(1) ACJA .However, if the person in
occupation refuses to grant free access (free ingress and egress), the police officer has the right to break into
the premises to conduct the search and break out. See section 109(2) ACJL; section 112(2) CPL.
 When any person in or about the premises so searched is reasonably suspected of concealing on his
person any article for which search should be made, such person may be searched. If the person to be
searched is a woman, then she shall, if possible, be searched by another woman and may be taken to the
police station for that purpose. See section 109(3) ACJL; section 149(3) ACJA.
 Unless the court otherwise directs, the search made pursuant to a search warrant (i.e. the execution of
a search warrant) must be conducted, whenever possible, in the presence of two respectable inhabitants of
the neighbourhood to be summoned by the person to whom the warrant is addressed - S. 78(1) CPCL.
 A list of all the things seized during the search and of the place where they were found shall be
prepared by the person carrying out the search and shall be signed or sealed by the witnesses. Section 78(2)
CPCL.
 If any place to be searched is in the actual occupation of a woman, not being the person to be arrested,
who according to custom, does not appear in public, the person making the search shall, before entering the
apartment, give notice to such woman that she is at liberty to withdraw and shall afford her every reasonable
facility for withdrawing, and may then enter the apartment. However, where she is the person to be arrested,
OR SHE IS NOT AROUND this provision will not apply - S. 79 CPCL.
 The occupant of the place to be searched or any person on his behalf shall be permitted to be present at
the search and shall, if he so requires, receive a copy of the list of the things seized therein, signed or sealed
by the witnesses - S. 80 CPCL.
 The person executing the search warrant should submit himself to a search before carrying out the
search, in order to ensure transparency.
 Generally, items not specified in the search warrant should not be seized. However, where the person
executing the search warrant comes across incriminating items which he reasonably believes to have been
stolen or are relevant in respect of other offences, he can lawfully seize.
 Person to whom the warrant is addressed may also provide a witness within the neighbourhood unless
the court otherwise directs owing to the nature of the offence. -REYNOLD V COP for the Metropolis. Upon
seizure, all the things seized should be taken to the person that issued the search warrant.
When can a search warrant be issued or executed?

A search warrant can be issued or executed on any day including a Sunday and a public holiday and may be
executed between the hours of 5:00am and 8:00pm, but the court may, in its discretion, order that the
warrant be executed at any hour. See section 108(1) ACJL; section 111(1) CPL.
By section 108(2) ACJL and section 111(2) CPL, where a magistrate authorises the execution of a search
warrant at any hour other than between the hours of 5:00am and 8:00pm such authorization may be
contained in the warrant at the time of issue or may be endorsed thereon by any Magistrate at any time
thereafter PRIOR to its execution.
NOTE: By virtue of S. 148 of ACJA, a search warrant may be issued and executed at any time and day
including Sunday or public holiday.
Admissibility of illegally obtained materials

The position of the law is that incriminating items recovered in the course of an illegal search is admissible in
evidence once it is relevant to the facts in issue UNLESS the desirability of admitting the evidence is
outweighed by the undesirability of admitting the evidence.- Ss. 14 &
15 Evidence Act, 2011. Section 15 provides the guide with which the court will use to determine the
admissibility of the illegally obtained evidence such as the probative value of the evidence and its relevancy to
the facts.
There is NO LIABILITY if the complaint was made in good faith. Where the complaint was made recklessly or
without reasonable cause, then the complainant may be liable in damages for malicious procurement of a
search warrant.
Execution of search warrant outside Jurisdiction

A person executing a search warrant beyond the jurisdiction of the court or justice of the peace issuing it
shall, before doing so, apply to the court within whose jurisdiction search is to be made and shall act under
its directions. - S. 151 ACJA. Every person executing a search warrant beyond the local limits of the
jurisdiction of the court or justice of the peace issuing it shall before doing so apply to some court within the
local limits of whose jurisdiction search is to be made and shall act under its directions. - S. 83 CPCL.
SEARCH OF PROPERTY
 A search of things such as handbags, pockets, suit cases, vehicles, etc, may be conducted with or
without a search warrant.
 A police officer can stop and search vehicles on the road without a warrant.
SUMMONS
A summons is an alternative to a warrant of arrest and is usually issued for misdemeanors and simple
offences or where the person whose attendance is required is not likely to refuse to attend court. Where the
offence is a serious one by nature, a warrant of arrest will be issued.
ISSUING AUTHORITY
Under CPL and ACJL, summons is issued by a Judge or Magistrate. See; sections 79 & 80
ACJL, sections 79, 80 & 81 CPL, section 113 ACJA. Under CPCL, a summons is issued by a Judge, a
Magistrate or a Justice of the Peace. See sections 47 & 154(1) CPCL.
A court (that is Judge or Magistrate) has the power to issue criminal processes (that is, summons or warrant
of arrest), even if it has no jurisdiction to try the offence, provided that a Court within the state has the
jurisdiction to try the offence. See section 79 ACJL; section 79
CPL; and section 139 CPCL, section 113 ACJA.
Contents of summons
i. A concise statement of the alleged offence.
ii. The name of the individual charged with the alleged offence.
iii. An invitation to the named individual to attend the court or police station at a particular date and time
being not less than 48hours after the service of the summons on him.
iv. The date the summons was issued
v. The signature of the issuing authority, whether Judge, Magistrate or Justice of the Peace. See
GOODMAN v. EVANS.
Issuance and service of summons

Under CPL and ACJA, a summons may be issued or served on any day, including a Sunday or public
holiday. See section 82 CPL. Under ACJL, the position is slightly different. By section 81(a) ACJL, a
summons may be issued or served on any day from Monday to Saturday between the hours of 8:00am to
6:00pm. However, by section 81(b) ACJL, a summons issued or served on a Sunday or a public holiday shall
not be invalid but shall take effect from the next working day.
A summons must be served either by a police officer, by any officer of the court issuing the summons or by
any public officer authorized to serve summons. See section 86 ACJL.
By section 87 ACJL, section 89 CPL, section 49(1) CPCL, section 123 ACJA, the summons is to be served
personally on the person named on it. However, by section 88 ACJL, section 90 CPL, section 52 CPCL, where
personal service is impossible, then substituted service may be resorted to with leave of court.
The manner of substituted service is thus:
 By leaving a copy of the summons with an adult male member of the accused family in the North.
Section 52 CPCL.
 Affixing it in a conspicuous part of the premises in which the accused ordinarily resides. Section 88
ACJL.
Under the ACJL, CPL and ACJA, acknowledgment/endorsement of receipt of summons by the person when
personally served is mandatory – s.92 ACJL & section 129 ACJA. Failure to endorse can lead to arrest of such
person and committal to prison for more than 14 days----s. 93 ACJL, s. 95 CPL or for such time as the court
may think necessary.
Under CPCL in s. 49(2) CPCL, acknowledgment of receipt of summons is not mandatory.
Life Span of Summons

The life span of a summons is that it remains in force until it is either executed or cancelled. A summons,
warrant or other process issued under any written law shall not be invalidated by reason of the death of the
person who signed it or his ceasing to hold office or have jurisdiction. See section 100 ACJL and section 383
CPCL.
Intra-state execution of summons/service outside jurisdiction

By section 91 ACJL and section 126 ACJA, where a summons is required to be served on a criminal
defendant who is outside the Jurisdiction of the court that issued the summons, but within the same State,
the court issuing the summons will send the summons in duplicate to the other court within whose
jurisdiction the criminal defendant is to be served and that other court will direct service as if it had issued
the summons itself.
Inter-state execution of summons
By section 478 CPL, a summons issued in one state may be served in another state. The service of such a
summons in the other state may be made in the same way as a summons in that state as the law does not
require the endorsement of a Magistrate in the state where the summons is to be served. A summons so
served shall have the same force and effect as if it was served in the State in which it was issued.
Effect of failure to obey summons

Where the defendant disobeys a summons, and the court is satisfied that he was duly served with it and he
disobeyed, the court will issue a warrant for his arrest. See 131 ACJA.
NB: It must be noted that a PUBLIC SUMMONS is not a SUMMONS. A public summons is issued when a
person against whom a warrant of arrest has been issued has absconded or is concealing himself. See
section 67 of CPCL for public summons and it applies only in the North. See section 41 and 42 ACJA.
Ordinarily, a person summoned ought to appear in person but under certain circumstances, his appearance
can be dispensed with if:
 He is represented by a counsel; or
 A penalty not exceeding N100 or 6 months imprisonment is annexed to the summons; or
 He pleads guilty in writing; or appears and pleads guilty by his legal practitioner.
The presence of such accused can subsequently still be required by the magistrate.
But if he is to be sentenced upon conviction, he must be present – s. 154(3) CPCL.
Under CPL, by section 100(1) CPL, the personal attendance of the defendant can be dispensed with in a
magistrate court where:
PRE-TRIAL INVESTIGATION AND POLICE INTERVIEW

Roles and Powers of the Police
 Pre-trial investigation. ONYEKWERE v. THE STATE.
 Prevention and detection of crime. S. 4 POLICE ACT.
 Arrest of offenders.
 Prosecution of offenders. S. 23 POLICE ACT.
Pre-Trial Investigation is the first step that the police will carry out before arraignment in court. The police
and other law enforcement agencies are responsible for conducting pre-trial investigation.
The conduct of police investigation must be carried out within the confines of the law. If at the end of pre-
trial, there is no sufficient evidence against the suspect, no charge will be made against him. Hence, pre-trial
investigation will determine whether an accused can be convicted. It also affects the trial.
Categories of persons that may be invited by the police in course of Pre-Trial Investigation.
 Suspect,
 Victim,
 Complainant,
 Witnesses,
 Experts,
 Any person who may aid proper investigation.
At the stage of Pre-Trial Investigation any person arrested in relation to the offence is still referred to as
―suspect‖ and ―accused/defendant‖ upon arraignment. A suspect invited for PTI MUST answer the invitation
otherwise, he will be arrested. On the other hand, a witness is not mandated to attend the Pre-Trial
Investigation.
Factors hindering effective police investigation in Nigeria:

 Lack of trained personnel;
 Corruption;
 Inadequate protection of witnesses;
 Lack of basic investigative skills;
 Poor record keeping;
 Poor remuneration;
 Impatience on the part of officers leading to early closure of case files;
 Weak institution; etc.
POLICE INTERVIEW
Stages of police interview:
 Rapport building stage;
 Information exchange stage;
 Confrontation/challenge stage; and
 Concluding stage.
ALIBI, STATEMENTS, CONFESSIONS AND IDENTIFICATION PARADE
ALIBI
This is a defence usually raised by an accused person or suspect. By raising the defence of alibi, the suspect
asserts that he was not at the scene of the crime at the material time the crime was being committed and that
it was practically impossible for him to have committed the crime. There is a duty on the accused to properly
raise the defence of alibi. This duty includes raising the defence at the earliest possible opportunity. It is
properly raised when raised timeously upon arrest and the particulars of the alibi (place, time, purpose and
names of persons with the suspect) are immediately furnished. EBEMEHI V STATE.
Once alibi has been properly raised, in that the particulars were supplied, the police are required to
investigate the alibi. In certain cases even if the particulars have been supplied, it would be irrelevant to
investigate e.g. where the accused was caught/arrested while committing the crime, or at the scene of the
crime, or was pursued and arrested immediately after committing the offence OR the confessional statement
made voluntarily by the suspect may destroy the defence of alibi. OGOALA V. THE STATE.
If the defence is raised during arraignment, the prosecution is not bound to disprove it. The court will only
consider such defence with material evidence in order to determine whether the defence will avail him.
The evidential burden is on the accused pursuant to Ss. 136 AND 137 EA while the primary burden of
proving the guilt of the accused beyond reasonable doubt is on the prosecution.
STATEMENTS AND CONFESSIONAL STATEMENTS
A statement is a narration of the facts relating to a case. A confessional statement is an admission of guilt.
 Statement must be made under caution. The suspect should be cautioned as to his rights.
 Statements should be obtained in English language if practicable except the suspect does not
understand English, then the police should allow the suspect to make his statement in that language. With
an interpreter, it can be translated at a later stage to the language of the court. In tendering statement
recorded by an interpreter, the interpreter must be present and it must be admitted through him, otherwise
the statement will become inadmissible hearsay evidence. NB: Both the statement and the interpreted version
must be tendered. Where an interpreter is used and also a recorder (different from the interpreter) in
recording an accused's confession, such confession is inadmissible unless both the interpreter and the
person who recorded the statement are called as witnesses. OLALEKAN v STATE.
Where it is not an interpreted statement, it is not mandatory for the police officer that recorded the statement
to be in court before the statement can be tendered and admitted. MICHAEL OLOYE V. THE STATE.
Assuming the interpreter is dead (or cannot be found, incapable of giving evidence or his attendance cannot
be procured without an amount of delay or expense which, to the court, appears to be unreasonable), the
prosecution would lay proper foundation in court through its witness, that the person who interpreted the
statement and recorded same is dead, and then seek to tender the recorded statement. It can do so through
the Investigating Police Officer. Failure to do so, it will amount to inadmissible hearsay evidence and would
not be admissible. S. 39 EA.
 Under the ACJA, where an interpreter records and reads the statement of the suspect over to him to his
understanding, the suspect shall then endorse the statement as having been made by him, and the
interpreter shall attest to the making of the statement. S. 17(3) ACJA.
 All material evidence must be made available to the suspect.
 Statements made to the police by the suspect during investigation must be tendered by the prosecution
at trial and it is the foundation of the case. And such statements are admissible. IGBO V STATE.
 The statement must be a verbatim record. You don‘t choose what to write.
 It is not mandatory for a suspect to make statements to the police and as such the suspect only makes
a statement if he wishes to do so otherwise he may refuse to answer any question put to him or make or
endorse any statement even after consultation with his lawyer. S. 35(2) CFRN, S. 3(2)(c) ACJL, S. 6(2)(a)
ACJA. Thus, statements made under undue influence, duress, threat, promises may not be admissible. S.
29(2) E. A.
 Confessional statements are regulated under Ss. 28 & 29 EA. No confessional statement can be made
during trial. UDO V STATE. It can only be made during police investigation or at the close of police
investigation. Should an accused confess to committing the crime during trial, it shall amount to a
guilty plea and not a confession. Confession could be oral or in writing. IGBINOVIA V. THE STATE.
PLEASE NOTE that oral confession of arrested suspect shall not be admissible in Lagos, however, it is
admissible UNDER ACJA pursuant to S. 15(5) ACJA.
 A confessional statement cannot be made on behalf of another person---MBAH V. THE STATE.
 The confessional statement must be made by the suspect and confessional statement of suspect A
cannot be used against suspect B except the other suspect in whose presence it was made adopts same
by words or conduct. MBANG V STATE. Conduct depends on the circumstances of the case but such
must be very clear as to leave no doubt as to the admission of the offence or confession.
Grounds for objection to the admission of a confessional statement

1. Involuntariness, and (TRIAL WITHIN TRIAL)—To ascertain the voluntariness of the confessional
statement - IBEME V. THE STATE. An objection to an involuntary confessional statement should
be made timeously. It should be made at the point the prosecution seeks to tender the
statement as evidence.
2. Retraction (Denial) (No TRIAL WITHIN TRIAL) but the court before acting on it must establish that
the statement was actually made and ascribe probative value to the statement, attach necessary
weight based on the evidence before the court, admit it and consider the weight to attach to it.
OGUNYE v. STATE.
NB: Promise of secrecy, deception etc is not a ground for objecting to the admission of a confessional
statement properly made as it would be admissible. S. 31 E.A.
The burden is on the prosecution. The standard of proof in TRIAL WITHIN TRIAL is beyond reasonable doubt,
and it is the prosecution that opens the case by calling witness first, the trial does not end at TRIAL WITHIN
TRIAL as it is a mini trial after which the parties revert back to the substantive case.
Effect of Confession
A confessional statement is sufficient to ground a conviction without corroboration provided the court is
satisfied with the truth of the confession even if it is inconsistent with the accused's statement in court. In
determining the truth of the confession, the Court however, must ask itself certain questions. These
questions include:
 Is there anything outside the confession to show that it is true?
 Is the confession corroborated?
 Are the statements of facts contained in the confession true, as far as they can be tested?
 Did the accused person have the opportunity to commit the offence?
 Was the confession possible?
 Is the confession consistent with other facts which have been ascertained, admitted and proved at the
trial?
JUDGE’S RULES
It is pertinent to note that the judges rules are for administrative convenience and purposes of which have no
force of law but have been recognized by the court and codified to some extent.
The most relevant of the rules are:
1. When a police officer is trying to discover whether, or by whom an offence has been committed, he is
entitled to question any person, whether suspected or not, from whom he thinks that useful
information may be obtained, whether that person has been in custody or not.
2. When the person has been charged and informed that he may be prosecuted, he should be cautioned
in the following words: "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".
3. After being cautioned, where the suspect makes a statement or elects to make a statement, a record of
the time, the place at which the statement was taken and the person(s) present at that time shall be
kept.
4. 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 and
volition. 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 and volition".
5. If a person has been charged and the police wishes to bring to his notice a written statement made by
a co-accused who in respect of the offence has been charged or informed that he may be prosecuted,
the police should hand over a true copy of such written statement, but nothing should be said or done
to invite any comment or reply. But if that person says he wants to make a statement in reply, he
should be cautioned as indicated above.
IDENTIFICATION PARADE
Identification parade is usually conducted when the identity of the suspect is in doubt or to defeat a defence
of mistaken identity. IKEMSON v STATE. However, an identification parade is not a sine qua non in all cases
where there is a fleeting evidence on the identity of the suspect.
Examples are:
 The victim or witness did not know the accused before and his first contact with the accused was during
the commission of the offence;
 The victim or witness was confronted by the offender for a very short time;
 The victim in the time and circumstances might not have had full opportunity of observing the features of
the accused.
Instances Where An Identification Parade Will Not Be Necessary
 Where by his confession, an accused person identifies himself as the offender;
 Where the offender is arrested at the scene of the crime while committing it or was pursued and
arrested immediately thereafter;
 Where the offender was well known to the witness or victim before the commission of the crime;
 Where a case of alibi has been put forward by the suspect;
 Where there is strong and uncontroverted eye witness account showing the offence was committed by
the accused person;
 Where the circumstances of the case has sufficiently and irresistibly married the offender to the crime
and the crime scene.
Types of identification
a) Dock identification: if the accused is in the dock, the witness can be asked if he knows the accused.
b) Voice identification: if the accused talked a lot while committing the crime.
c) Photograph identification/visual identification.
d) Fingerprints identification: this can be the best mode of identification of a suspect as not two persons
have the same thumb impression. It is not predominant in Nigeria due to lack of facilities.
e) Handwriting.
f) Palm prints. ARCHIBONG v. STATE.
Procedure For Conducting Identification Parade
a) Presence of a senior officer: A senior officer must be present and he is not to take part in the
identification parade, his presence is only required.
b) The identification parade must consist of at least eight (8) persons + the suspect, who as far as
possible resemble the suspect in age, height, build, complexion, general appearance and position in
life.
c) If a police officer forms part of the identification parade, his badge number must be removed.
d) Before parade seeing of suspects and persons to be paraded: The witness must not see the persons (or
suspects) to be paraded before the parade.
e) Exclusion of those not directly involved/the press;
f) Line-up photograph is taken before the parade begins;
g) Communication between witnesses BEFORE parade is prohibited
h) Hand placing on shoulder rule: If the witness identifies any of those paraded, the witness must place
his hand on such person‘s shoulder and photograph of such will be taken.
i) If there is more than one witness, they must be brought in one after the other – identification must
then be done individually.
j) After identification, another identification parade is to be taken with the person identified with
different persons for the purposes of verification.
k) There should be separate entry and exit to the venue for the identification parade.
l) The room for the identification parade must well illuminated.
m) Where the suspect has an unusual physical feature such as a facial scar, a tattoo or a distinctive
hairstyle or hair colour which cannot be easily replicated by the other participants in the identification
parade, steps should be taken to conceal that special feature.
NB: Failure to follow the laid down procedures for identification of a suspect does not render the
evidence inadmissible but it goes to the weight to be attached to such identification.
CONSTITUTIONAL RIGHTS OF A SUSPECT AT THE POLICE STATION
The suspect has the following rights during investigation by the police:
1. Right not to be subject to torture that is dignity of human person. Right to decent cell, condition and
facilities. S. 34 CFRN.
2. Right to remain silent or avoid answering question until consultation with legal practitioner or any
other person of his choice, when he is arrested or detained. Right of access to counsel of one‘s choice.
S. 35(2) CFRN.
3. Right to be informed in the language he understands, the facts and grounds of his arrest or detention,
in writing and within 24 hours. S. 35(3) CFRN.
4. Right to be brought to court within a reasonable time. 24 or 48 hours depending on the distance of
the court to the police station. This does not apply to capital offence. S. 35(4) CFRN.
5. Right to bail, if it is a bailable offence by the police. The police have no power to grant bail in capital
offence. S. 35(4) & (5) CFRN.
6. Right to compensation and apology when unlawfully arrested by the appropriate authority. S. 35(6)
CFRN.
7. Right not to be subject to unnecessary and unreasonable restrain when being arrested except under
certain circumstances.
INSTITUTING CRIMINAL PROCEEDINGS

The following bodies can institute criminal proceedings in various Courts in Nigeria:
1. The Attorney-General of the Federation or officers under his department.
2. The Attorney-General of each State or officers under his department.
3. The officers of the Nigeria Police Force.
4. Special Prosecutors (eg, officers of EFCC, ICPC, NDLEA, etc).
5. Persons instituting vide a FIAT from the Attorney- General of States and the Federation.
6. Private persons as established in FAWEHINMI v AKILU.
ATTORNEY-GENERALS OF THE FEDERATION AND OF EACH STATE

The 1999 Constitution creates the office of the OMOLE, sorry A-G Sneh, sorry A.G of the Federation as well
as that of a State (the Minister and Commissioner of justice respectively). Ss. 150 & 195 of 1999 CFRN.
The qualification for an AG is a legal practitioner who has practiced in Nigeria for at least ten years. Ss.
150(2) & 195(2) CFRN.
 The constitution empowers the A-Gs with regards to instituting and commencing criminal
proceedings. Ss. 174(1), 211(1) CFRN.
 The prosecutorial power lies in the Attorney General except he delegates such power to a law officer in
his department or he authorizes a legal practitioner to conduct the proceedings. Ss. 104(2) and 106
ACJA.
 The A-G States can only institute criminal proceedings in relation to an offence created by a law of the
state House of Assembly. S. 211(1)(a) CFRN.
 A-G Federation cannot prosecute state offences except with a Fiat. AG ONDO STATE V. A-G
Federation. However, the AGF does not need a Fiat from the AGS to try federal offences in the State.
 Where the offence is in relation to an offence created by the National Assembly, the AGS, generally,
cannot institute a criminal action. However, the AGS can institute criminal proceedings in respect of
an offence created by an Act of the National Assembly where there is an express delegation of
authority from the AGF by way of fiat. ANYEBE V STATE.
 Where the Act of the National Assembly is created in a manner as to operate as a state law, the law
will be treated as if it is the law of the State and the AGS DOES NOT need the express delegation of
the AG Federation to institute such criminal proceedings for an offence under any such Acts because
they are deemed to be state Laws. An example is the Robbery and Firearms Act. EMELOGU V STATE.
 The power of the AG to institute and undertake criminal proceedings is sacrosanct and cannot be
curtailed by means of an injunctive relief restraining the AG from prosecuting an offender.
 In the absence of an incumbent Attorney General (with the exception of the powers of nolle prosequi)
the officers of the AG‘s department can carry out all the functions of AG in a criminal action. AG
KADUNA STATE V. HASSAN, SARAKI V FRN.
 The power of take-over/continuing criminal proceeding is exercised in criminal proceedings that may
have been instituted by any other person (example police, special prosecutors, private person) in any
court other than court martial. The rationale for excluding the court martial is that the AG ab initio
does not have power to institute or undertake criminal proceedings in a court martial. It can be
delegated to a private prosecutor. AMAEFULE V. STATE.
 Power to discontinue at any stage before judgment is delivered, any criminal proceeding instituted or
undertaken by him or any authority or person. The power of the AG to discontinue at any stage of any
proceeding instituted or undertaken by him or any other person or authority any stage is otherwise
known as NOLLE PROSEQUI. STATE V ILORI. Nolle prosequi literally means one no longer
prosecutes. The power can be exercised orally or in writing. STATE V CHUKWURAH.
 He needs not give reasons for entry of Nolle Prosequi. STATE V ILORI.
 The Attorney General of the federation in person can orally ask the court to discontinue the
proceedings or put it in writing and direct an officer of the AG‘s department to deliver it to the Court.
STATE V ILORI. This officer must be a law officer as in S. 2 LAW OFFICER‘S ACT. Thus, a P.A of the
AG who is a LP cannot bring such instrument to court as he is not a law officer pursuant to section 2
of the Law officers Act. AWOBOTU V THE STATE.
 Upon entering a nolle prosequi, the court makes an order. It results in fait accompli which is that the
thing accomplished is presumably irreversible.
 The power of Nolle Prosecui is not delegable.
 Consequently, the power of nolle cannot be exercised where there is no incumbent A.G. AG KADUNA
V HASSAN.
 The judge cannot inquire as to the reason behind a Nolle as the AG is not mandated to give reasons
for the discontinuance. STATE V ILORI. The power of nolle prosequi can be exercised at any stage of
the proceedings before judgment. Thus, even the day the judgment is to be read, he can exercise this
power.
 When a nolle prosequi is entered by the AG in criminal proceedings, the accused is merely
DISCHARGED and not acquitted. Thus, the defendant cannot raise the plea of autrois acquit or
convict because a mere discharge cannot ground such plea. Nolle prosequi is just to suspend the
criminal proceeding and the criminal proceeding can be re-instituted almost immediately. S. 108(5)
ACJA. It has been said that it can be entered as many times as possible and the following proceeding
can still be revived without filing a new information or charge. The AG usually enters nolle prosequi
when more time is needed to gather information needed for the prosecution of the accused person.
NB: Withdrawal of a case: S. 108 ACJA
 The effect of withdrawal of a charge depends on the stage entry is made. Generally, where
withdrawal is made before defence has begun, the effect is a mere discharge, unless the court
decides otherwise and grants an acquittal. Where made after defence has begun, it has the
effect of an acquittal.
 A nolle prosequi relates to the entire charge sheet and not to counts, and as such once a nolle
is entered, the trial will not continue, whereas a withdrawal may relate to a count or the entire
charge sheet.
 A nolle prosequi entered even on the day of judgment will still be a mere discharge but a
withdrawal by prosecutor on the day of judgment would have the effect of an acquittal.
 Withdrawal is based on the discretion of the court. The court has the final say in the
withdrawal but in nolle prosequi, the AG does not answer to anybody in exercising the power.
For a withdrawal, the consent of the court must be sought whereas the consent of the court is
not sought before the AG can enter a nolle.
 Authority to enter same: A nolle prosequi can only be entered by the AG while a withdrawal is
made by a prosecutor.
 In nolle prosequi, the court will not demand for reasons from the AG but in withdrawal by
prosecutor, the court in making an acquittal must be satisfied that it is the proper order thus
would demand for reasons as to the application for withdrawal.
NIGERIA POLICE FORCE

The police have power to prosecute criminal cases in ANY COURT IN NIGERIA- Ss. 4 AND 23 POLICE ACT,
OSAHON V FRN. The power to prosecute is subject to that of the AG Fed and State power to take over and
discontinue---Ss. 23 POLICE ACT, SECTION 174(1)(b)(c) AND 211(1)(b)(c) CFRN.
The police need not be a legal practitioner to have right of audience in court but where he is a legal
practitioner it is an addition. OSAHON V. FRN.
PRIVATE PERSON
A private person has power to commence criminal proceedings—Ss. 59, 342 CPL, 254 ACJL, 143(e) CPCL.
The right of a private person is subject to provision of any law specifying certain persons to institute criminal
proceedings. Before a private person can institute and commence criminal proceedings, certain obligations
are to be fulfilled:
a) Endorsement from the AG.
b) Endorsement of private information by a law officer that he has seen such information, and the law
officer declines to prosecute and thus empowering the private person to prosecute on behalf of the
state—Ss. 381(d) ACJA, 56 FHC ACT, 98 FCT HIGH COURT ACT.
c) Enter into a recognizance for the sum of N100 for CPL and N10, 000 (N50,000 ACJL 2015) for ACJL
together with one surety undertaken to prosecute the said information diligently.—S. 254 ACJL.
Where the AG refuses to endorse a private information or charge, he may be compelled by an order of
mandamus. FAWEHINMI V. AKILU.
In Lagos, the right of a private person to institute criminal proceedings is now limited to the offence of perjury
AND steps must be taken as the information to be filed must be presented to the AG.
PERSONS UNDER FIAT

A fiat is an instrument given to a private person to prosecute on behalf of the AG. This is because the power
of prosecution lies solely on the Attorney General and the private person signs on the particular procedure to
be used for the proceedings. Distinction between private person and private legal practitioners right to
prosecute must be made. The private person commences the action where the AG has declined to prosecute
while the private legal practitioner (usually an expert) is briefed by the AG, after the AG must have
commenced the action and the PLP does acts in the proceedings like the AG. NAFIU RABIU V. STATE, but all
the charge sheet must be signed on behalf of the AG.
SPECIAL PROSECUTORS
Special prosecutors are persons given enabling power by a statute to prosecute crimes under it. Thus when
persons are so authorised, they are regarded as special prosecutors and can validly institute and prosecute
criminal proceedings. The following are the ready examples:
 The Economic and Financial Crimes Commission Act empowers the EFCC to prosecute offences under
the Act. S. 12(a) EFCC Act.
 National Drug Law Enforcement Agency Act, Ss. 7(1), 8(2) NDLEA ACT empowers the prosecution unit
to be established to institute and prosecute criminal proceedings.
COMMENCEMENT OF CRIMINAL PROCEEDINGS IN THE VARIOUS

COURTS IN NIGERIA
There are different ways of bringing criminal proceedings in the north, south and Lagos state with regard to
the different courts of original jurisdiction.
MAGISTRATE COURT
1. First Information Report (North and FCT)
Most common way of commencing proceedings in Magistrate courts in the North including FCT. S. 112 ACJA.
 A direct complaint from the victim to the police in writing endorsed in the prescribed form by the
police and thereafter it is taken to magistrate and the suspect is brought to the court and the
particulars of the offence contained in the First information report will be read to the suspect as
framed by the police.
 The suspect will be asked if he has any cause to show why he should not be tried by the Magistrate.
 Where the suspect admits, his admission shall be recorded as nearly as possible in the words used by
him and if he shows no sufficient cause why he should not be convicted by the court, the magistrate
will convict him accordingly. This is called a Summary trial based on the First information Report and
it is not necessary to frame a formal charge.
 Where the suspect denies the allegations and states that he intends to show cause why he should not
be convicted, the magistrate will require evidence from the police from their witnesses. It is important
to note that the magistrate MUST take prosecution witnesses before attempting to draft a formal
charge. IBEZIAKO V COP.
 At the end, the magistrate will determine whether a prima facie case has been made against the
defence, where such prima facie case exists, the magistrate will frame his own charge directing the
suspect to be tried by the MC or another MC.
 The charge is read over again to the accused, plea is taken and the defendant will enter his defence.
Thereafter the court will give judgment. However, where no prima facie case is made against the
defendant upon taking evidence of the police, the magistrate will discharge the defendant.
 Where the court is of the opinion that that the case is one which ought to be tried by the HC, the M
shall, at any time before judgment, transfer the case along with the suspect to the HC for trial upon a
charge or information.
2. By Laying a Complaint (written or on oath)

In southern states (except Lagos) you can lay a complaint or file a charge sheet. Ss. 77 and 78(a) and (b) CPL.
3. Upon a charge (South)

When a person is arrested usually without a warrant, the person is brought to the Magistrate upon a charge
which in practice the charge is prepared and signed by the police officer together with all the necessary
particulars. Ss. 78(b) CPL, 78(1)(2)ACJL.
STATE HIGH COURTS
Essentially there are two main modes used in SHC which are:
 By information; and
 By charge
Conditions Precedent: Consent of the Courty to file information IS NEEDED AND MANDATORY and granting
it is subject to the discretion of the judge. This applies in THE SOUTH ONLY. Ss. 77(b), 340(2) CPL. Where
there is no prima facie case, the court will not grant leave. Leave of court to file the information MUST
BE SOUGHT AND OBTAINED and UPON A FAILURE TO DO SO, such information will be rendered
incompetent and same will be quashed before the trial court on the application of the accused upon his
arraignment; or proceedings of the trial court will be quashed on appeal thereby such proceedings will be a
nullify. AGF V CLEMENT ISONG
FEDERAL HIGH COURT

ACJA now replaces CPA in FHC proceedings. Ss. 2(1), 493 ACJA. Offences are still triable summarily. S. 86
ACJA. Proceedings at the FHC is by charge only and leave of a judge is not needed before filing the charge.
This is because the criminal jurisdiction of the FHC is summary. S. 33(2) of FHC ACT provides that all
criminal causes and matter shall be tried summarily.
LIMITATION TIME TO COMMENCE CRIMINAL PROCEEDINGS

In criminal proceedings unlike civil proceedings, the general rule is that there is no limitation of time for
instituting criminal proceedings save for statutory exceptions. These exceptions to the general are:
 Treason and treasonable felonies: the time limit is 2 years. S. 43 CRIMINAL CODE.
 Offence of sedition is 6 months. S. 52(1)(c) CRIMINAL CODE.
 Defilement of a girl under 13 years, above 13 years and below 16 years must be prosecuted within 2
months. Ss. 218 AND 221 CRIMINAL CODE.
 Proceedings under the Customs and Excise Management Act, must be commenced within 7 years of
commission of the offence. S. 176(3) CEMA.
 Military offences to be tried in the court martial must be commenced within 3 years after the
commission of the offence except offences of Mutiny, failure to suppress mutiny and desertion. S.
169(1) AFA.
 For a retired Service officer for Military offences other than mutiny, failure to suppress mutiny and
desertion - 3 months. OLATUNJI V STATE, S. 169(2) AFA.
Conspiracy to commit the above offences is not within the time limit - R V SIMMONDS even where the main
offence is statute barred.
Public Officers: Time does not run against offences committed by public officers in the case of criminal
proceedings. The three months limitation as specified in section 2(a) POPA does not apply to criminal
proceedings. YABUGBE V COP.
CHARGES
A charge is a document containing the statement and particulars of offence which a person is accused and
tried in a court of law.
The offender in the south and the High Court in the FCT and the FHC is the defendant while the offender in
the North is an accused person.
Rules of drafting Charges
1. Rule against Ambiguity.
2. Rule against Duplicity.
3. Rule against Misjoinder of Offences.
4. Rule Against Misjoinder of offenders
Rule against Ambiguity

AMBIGUITY RELATES TO INDIVIDUAL COUNT OR HEAD CHARGE. Ambiguity means when something is
capable of having more than one meaning or it is not clear. The essence of a charge is to enable an accused
person prepare for his defence, thus a charge that is ambiguous or unclear will hinder the Defendant from
properly defending himself, which is against the spirit of section 36 of the 1999 CFRN. The rule against
ambiguity has no exception. A charge is either ambiguous or it is not. If it is said that a charge is ambiguous,
it must be in relation to a head of charge or count in a charge sheet.
In one word, a charge will be said to be ambiguous when it does not meet the requirements of ADPOVS or
OS-ADPV for Information.
A- Accused (Full name and alias of the accused).
D- Date (date of commission of the offence, could be specific or could be ‗on or before‘, whichever is suitable).
P- Place (where crime was committed, full address, always end with ‗within the jurisdiction of this
Honourable Court‘).
O- Offence (state the offence as the law provides it, eg, in the North you use ‗did commit culpable homicide
punishable with death…‘ and not ‗did murder…‘).
V- Victim (be it a person or artificial body).
S- Statute (the law that punishes the offence).
Rule against duplicity

DUPLICITY RELATES TO INDIVIDUAL COUNT OR HEAD CHARGE. DO NOT PUT TWO OFFENCES
IN ONE COUNT. This rule relates to a particular head of charge or count. In R V. UGO CHIMA, the
accused was charged with the murder of her two children (twins) in one count. The court held that two
murders were committed and that the charge was bad for duplicity.
Objection to a charge bad for duplicity should be raised at the appropriate time. This is when the charge has
been read over to the accused person, but before he takes his plea.
Exceptions to the rule against duplicity
 General deficiency of money over a period of time: This is used for only money belonging to one person
and not property or goods stolen over a period of time.
 Alternatively defined offences.
 Statutory forms.
 Identical offences in the course of the same transaction.
 Overt Acts in respect of treason and treasonable felonies.
Effect of duplicity: It does not invalidate charge or trial except occasions a miscarriage of justice.
NOTE: When faced with a question on Charges with multiple Defendants, it is safer to put all the Defendants
in a Count, the only exception is RAPE, only put the rapist/penetrator in the Count.
Rule against misjoinder of offences

MISJOINDER OF OFFENCES RELATE TO THE ENTIRE CHARGE SHEET. This rule is to the effect that for
every distinct offence for which an accused is to be charged, such should be in a separate charge sheet (not
charge or count). Thus, if Mr. A commits the offence of rape, stealing and arson, he should be charged in a
separate charge sheet for each of the offence and tried separately.
Exceptions to the rule against misjoinder of offences
 Twelve months rule: offences committed within one year or twelve months – s. 157(1) CPA. S. 153(i)
ACJL. The section is to the effect that if the offences were committed within 12 months, whether
against one person or different people, the offender can be tried on a single charge sheet for any three
of those offences.
 Same TRANSACTION rule: offences committed in the course of the same transaction – s. 158 CPA, s.
214(1) CPC and s. 153(iii) ACJL, Section 209(C) ACJA. These are offences even though distinct but are
committed in same transaction. For instance A with intention to rob a bank snatched B‘s car after the
robbery; at a police check point, shot at C, a police man killing him. Thus the offences arising from
this transaction can be one charge sheet and tried together armed robbery and murder. However,
where that transaction has broken subsequent offences will be subject of a different charge sheet. If
one of the offenders, deviate from the common purpose/intention and commits a different offence but
in the same transaction, he will be charged separately on a different count or head of charge but on
the same charge sheet---HARUNA V STATE. Note when there is a break in the common purpose.
 Offences comprising acts or omissions which by themselves or in conjunction with others constitute a
different offence –For instance A enticed B into his house on the pretext that he had an urgent
message for her. He then ripped off her clothes and forcefully had carnal knowledge of her.
Individually the acts constitute an offence and in combination they constitute the offence of
abduction. An offence which may be committed in any of several occasions may be charged in the
alternative in same charge sheet.
 Offences of the same or similar character: Offences are said to be of the same kind where they are
identical; similar is if they share or exhibit some common features. They are so similar if evidence for
one offence would be admissible to prove the other offence.
 Acts or omission that constitute an offence falling within two or more separate definitions- constituted
under separate laws e.g Road traffic Law/ Federal Highways Act and criminal Code(causing death by
dangerous driving and manslaughter)(North culpable homicide not punishable with death).
Rule against misjoinder of offenders

MISJOINDER OF OFFENDERS RELATE TO THE ENTIRE CHARGE SHEET. The general rule is that every
person who is alleged to have committed an offence shall be charged and tried separately for the offence
alleged against him. If XYZ & A committed the offence of stealing, they should all be charged separately.
Exceptions to the rule against misjoinder of offenders
 Persons accused of jointly committing the same offence: For instance if A, B & C beat up D, A, B & C
should be charged together in the same charge sheet.
 Persons accused of committing different offences in the course of the SAME TRANSACTION for
instance A, B & C went into a house and robbed the occupants; B raped one of the occupants. In that
case, they can be charged in same charge sheet for stealing and conspiracy to steal and B should be
charged separately for rape (in a separate count not charge sheet).
NB: that were A, B, C & D had agreed to rob a bank and had actually robbed the bank and after they
had gone their separate way, A decides to rob the neighbouring house, they will all be charged for
conspiracy and robbery of the bank on the same charge sheet. However, A that robbed the
neighbouring house will have a separate charge sheet in addition to the other one. The important
point to note is that there should not be break in transaction. A’s subsequent robbery is a break in
transaction.
 Persons accused of committing offences that are related one to the other.
 Persons accused of offences committed during a fight or series of fights arising out of another fight
and person accused of abetting any of these offences maybe charged and tried together.
AMENDMENT OF CHARGES
Prosecution can amend a charge at any time before judgment. S. 163 CPL provides for the alteration or
addition to any charge at any time before judgment is given or verdict returned and every such alteration or
addition shall be real and explained to the accused.
Generally when an accused has not been arraigned and there is need for amendment, the prosecution need
not seek the leave of court via an application. However, if charges have been filed and the amendment is
substantial, the leave of the court should be sought. After arraignment of the accused (the accused has taken
his plea) there should be an application for amendment of the charges.
Procedure for amendment before arraignment
 File the amended charge.
 On the day fixed for hearing, present both before the court and seek by way of an oral application to
withdraw the old one.
 Leave of court: Application (by motion on notice) for leave of court to amend the charge. This can be
oral or in writing. Oral is for clerical errors. The defence can object to the amendment. The court has
discretion to grant or refuse the application for amendment.
 A note of the order for amendment shall be endorsed on the charge which in its amended form is
deemed to be the original charge.
 After the grant of application for amendment and the charges have been amended, the amended
charges are to be read and explained to the defendant(s)/accused person(s).
 After reading the new charge to the accused person, he takes his plea afresh.
 Thereafter, the court must ask the defendant whether he is ready to be tried on the amended charge.
If the accused says he is not ready, the court shall consider his reasons.
 The defence counsel or prosecution can make an application (simple application not on motion) for
adjournment. The party seeking adjournment is entitled to it if proceeding immediately with the trial
on the amended charge will be prejudicial to him.
 Either the prosecutor or accused person may call or recall any witnesses (who may have given
evidence to testify).
OBJECTION TO DEFECTIVE CHARGES
A defective charge is when a charge is not in compliance with the rules of drafting (ambiguity, duplicity,
joinder of offences and joinder of offenders). The effect of a defective charge is dependent on whether the
defect is minor or fundamental. The general rule is that a defect in a charge will not lead to the setting aside
of a trial unless the defect is fundamental as the accused was prejudiced in the conduct of his defence.
Grounds for objections:
 Non-existent law.
 Where leave or consent of court to be obtained is not obtained before preferring charge.
 Where accused has been previously charged on same count or charged and acquitted or pardoned.
 Where the accused lacks legal capacity.
 Against the rules of drafting
Time for raising objection
Objection is to be raised timeously – before taking plea by the accused person (For the defect that does not go
to the jurisdiction of the court, it must be raised before the accused takes his plea). ABACHA V. THE STATE.
Where an accused has taken plea or pleaded to the charges, he is taken to have submitted to the jurisdiction
of the court. ADIO V STATE. However, there are some defects that go to the jurisdiction of the court; objection
in that regard can be raised at any time, the accused persons had objected to the information before their
plea was taken.
PECULIARITIES OF DIFFERENT JURISDICTION
MAG MAG MAG MAG HC HC HC HC FHC

(ABUJA) (LAGOS) (SOUTH) (NORTH) (ABUJA) (LAGOS) (SOUTH) (NORTH)
HEADING MAGISTE- MAGISTER- MAGIST- MAGIST- JUDICIAL JUDICIAL JUDICIAL JUDICIAL JUDICIAL
OF RIAL IAL ERIAL ERIAL DIVISION DIVISION DIVISION DIVISION DIVISION
COURT DISTRICT DISTRICT DISTRICT DISTRICT
REF. CHARGE CHARGE CHARGE CASE CHARGE CHARGE CHARGE CASE CHARGE
NO. NO: NO: NO: NO: NO: NO: NO: NO: NO:
PROSE- COMMIS- COMMIS- COMMIS- COMMIS- FEDERAL THE THE THE FEDERAL
CUTING SIONER SIONER SIONER SIONER REPUBLIC STATE STATE STATE REPUBLIC
AUTHO- OF OF OF OF OF OF OF
RITY POLICE POLICE POLICE POLICE NIGERIA LAGOS NIGERIA
OR OR OR OR
INSPEC- INSPEC- INSPEC- INSPEC-
TOR TOR TOR TOR
GENERAL GENERAL GENERAL GENERAL
OF OF OF OF
POLICE POLICE POLICE POLICE
AGAINST DEFEN- DEFEN- DEFEN- ACCUSED DEFEN- DEFEN- DEFEN- ACCUSED DEFEN-
DANT DANT DANT PERSON DANT DANT DANT PERSON DANT
HEADING CHARGE CHARGE CHARGE CHARGE INFOR- INFOR- INFOR- CHARGE CHARGE
OF MATION MATION MATION
CHARGE
SHEET
STRUC- 3- 1- 1- 3- 2- 2- 2- 1- 1-
TURE PARAG- PARAG- PARAG- PARAG- PARAG- PARAG- PARAG- PARAG- PARAG-
OF RAPH RAPH RAPH RAPH RAPH RAPH RAPH RAPH RAPH
CHARGE
SHEET
PREA- YES NO NO YES YES YES YES NO NO
MBLE
HEADING COUNT 1 COUNT 1 COUNT 1 CHARGE 1 COUNT 1 COUNT 1 COUNT 1 CHARGE COUNT 1
OF 1
COUNTS
STRUC- ADPOVS ADPOVS ADPOVS ADPOVS STATE- STATE- STATE- ADPOVS ADPOVS
TURE + + MENT: MENT: MENT: + +
OF ‗THAT ‗THAT OS OS OS ‗THAT ‗THAT
COUNTS YOU‘ YOU‘ PARTICU- PARTICU- PARTICU- YOU‘ YOU‘
LARS: LARS: LARS:
ADPV ADPV ADPV
DIREC- YES NO NO YES NO NO NO NO NO

TION
PARA-
GRAPH
DRAF- MAGIS- FOR: FOR: MAGIS- FOR: FOR: FOR: FOR: FOR:
TING TRATE COMMIS- COMMIS- TRATE THE THE THE THE THE
AUTHO- SIONER SIONER ATTORNEY ATTORNEY ATTORNEY ATTORNEY ATTORNEY
RITY OF OF GENERAL GENERAL GENERAL GENERAL GENERAL
POLICE POLICE OF OF OF OF OF
OR OR THE LAGOS THE THE THE
INSPEC- INSPEC- FEDER- STATE STATE STATE FEDER-
TOR TOR ATION ATION
GENERAL GENERAL
OF OF
POLICE POLICE
FOR THE THE THE THE THE THE THE THE THE
SERVICE DEFEN- DEFEN- DEFEN- ACCUSED DEFEN- DEFEN- DEFEN- ACCUSED DEFEN-
ON: DANT DANT DANT PERSON DANT DANT DANT PERSON DANT
BAIL
Bail is a temporary release of an accused/defendant/suspect from custody to sureties on condition given to
ensure the accused/defendant/suspect‘s attendance in court or some other places pending the determination
of the case or investigation. SULEIMAN V. C.O.P.
Types of bail
 Police Bail (Bail Pending Investigation or Administrative Bail);
 Bail Pending Trial; and
 Bail Pending Appeal.
POLICE BAIL
Police bail is the temporary release of a person arrested and detained in connection with a crime. Bail by the
police is that pending investigation. Bail is a constitutional right.--S. 35(4) and (5) CFRN and a suspect
ought to be granted bail if it is a bailable offence. The first thing a legal practitioner should do when a suspect
is arrested is to apply for bail if it is a bailable offence. In recognition of this constitutional provision, the
Police is empowered to grant bail to arrested persons where it is impossible or impracticable to bring them
before a Court within a reasonable time as required by the constitution. The police have powers to grant bail
other than for an offence of a capital nature.
Procedure for police bail
Bail is or may be granted upon application for bail. There are no laid down procedure for application for bail
before the police station. It can be made by the suspect or by another person. It can be in writing or orally. S.
18(3) ACJL and S. 32(3) ACJA. In practice, it is usually in writing. Bail pending investigation is revocable. The
police bail can be revoked by the police if the terms upon which the bail was granted was not fulfilled. Once
the bail has been revoked by the police it is only the court that can grant the bail again.
Once a suspect has been arraigned in the court, the police bail elapses. The legal practitioner should then
apply for bail from the court.
NB: A legal practitioner shall not stand or offer to stand bail for a person. Thus a legal practitioner
shall not stand bail for a suspect. RULE 37 RPC.
Terms of Police bail (conditions to fulfill). S. 17(2) ACJL.

1. Self-recognizance - this is based on social status and integrity of the suspect.
2. Entering into a bond for a fixed sum.
3. Provisions for surety/sureties
Options available to the suspect upon refusal of police bail
When a suspect is refused bail, there are 3 options open to the suspect:
 FREP: He may apply to the High Court of the state where he is being detained under the Fundamental
Rights (Enforcement Procedure) Rules 2009 to enforce his right to liberty.
 Habeas Corpus: He may apply to the HC of the state where he is being detained for release from
unlawful detention under Habeas Corpus procedure. Application is by way of motion ex parte,
supported by affidavit deposed to by suspect and a written address.
 Magistrate: ONLY IN LAGOS. He may make an application to a magistrate having jurisdiction over the
offence for release from custody. That is, he may apply to a magistrate having jurisdiction over the
offence for which he is detained for an order of the court directing the officer to bring him before the
court.
BAIL PENDING TRIAL

This is the process by which an accused/defendant is released temporarily from custody to sureties on
conditions given to ensure his attendance in court whenever he is required, until the determination of the
case against him. ONYEBUCHI V. FRN.
It is granted only by the court after proceedings have commenced and can only be made after suspects have
been arraigned in court. Thus, if the suspects are on police bail before, upon arraignment the bail lapses.
Suspects or counsel have to apply for bail pending trial. Counsel can notify the court as to the fact that the
accused person has a subsisting police bail and the court may grant that the bail subsists without any formal
application for court bail.
Once the accused has been taken to Court, application for his bail is usually made to a Magistrate or the
judge. Granting of bail by the Court depends on whether the offence is a simple offence, misdemeanor or a
felony. Bail is usually refused in respect of a capital offence except in special circumstances like in cases of ill
health, extra-ordinary delay in arraignment, no reasonable grounds for believing that the accused/defendant
committed the offence but that there are sufficient grounds for further enquiry. OLUGBUSI V. C.O.P.
A Magistrate cannot grant bail in respect of a capital offence. STATE V. OZUZU, but if the offence is felony
other than capital offence, the Magistrate has discretion and may grant or refuse bail. TARKA V. DPP;
however, the discretion must be exercised judicially and judiciously.
BAIL PENDING APPEAL

Bail pending appeal, unlike the others, there is a movement from presumption of innocence, as the accused
would have been convicted and thus appealing against his conviction. Once an accused has been convicted,
the right to liberty and presumption of innocence has gone. This is significant as in bail pending trial; it is the
prosecution that prove to the court why the bail should not be granted; while in bail pending appeal, it is the
convicted person that is begging the court to grant him bail pending his appeal.
Note that because the conviction of the accused has been secured, bail is rarely granted, that is, the
discretion of the court in granting the bail is rarely exercised in bail pending appeal. This is so as the
possibility of the accused jumping bail is higher. OLABODE GEORGE & 5 ORS V. FRN.
However, bail can be granted where the convict is able to show exceptional circumstances. The following are
some of the exceptional circumstances:
1. The health conditions of the convict.
2. Where the trial, conviction or sentence or all of them are manifestly contestable.
3. Where the convict/applicant is likely to spend full time in prison before appeal is heard, especially
with regard to the delay in Nigerian criminal justice system.
4. Where the case is complex and there is need for regular contact with the convict.
5. Convict is a first time offender.
6. Conduct of the applicant/convict during trial for instance where the applicant was granted bail during
trial and he did not jump bail.
Conditions precedent to bail pending appeal
 A valid Notice of Appeal must have been filed at the lower court. Ss. 28(1) CA Act; 31(1) SC Act. There
must be a pending substantive appeal. Notice of appeal must be annexed.
 File an application for bail at CA pending his trial at trial court.
NB: The prosecution can oppose motion by deposing to counter-affidavit setting out his grounds of objection.
Where application is for two convicts, then there must be two different applications. Where to file application
for bail depends on whether appeal has been brought or entered. Bail pending appeal after conviction is only
granted in special circumstances as there is no presumption of innocence on the part of the convict. On the
other hand, bail pending appeal before conviction is one that is granted on appeal against an interlocutory
decision of the trial court refusing bail and at this point, there is still the presumption of innocence.
METHODS OF APPLYING FOR BAIL

In a magistrate court, bail application can be made orally. This is the common practice. Application may be
made orally for simple offences or misdemeanor. Thus, application for bail at the High Court can be made
orally and subject to discretion of the court, however it is desirable that it is made by Motion on Notice (North)
supported with an affidavit and a written address. ABIOLA VS. FRN. No provision in statutes as to mode of
application for bail in both North and South. Ss. 363 CPL, 262 ACJL, 35 High court Law of Northern Nigeria,
492(3) ACJA are resorted to. In the South (Lagos included), application is by summons, supported with
affidavit and written address. In the North (Abuja included), application is by motion, supported with affidavit
and written address.
Differences between motion on notice & summons for bail
1. The application for bail pending trial is by summons which is directed to the state to show cause why
the accused should not be granted bail (presumption of innocence) while application for bail by motion
instead, prays the court to allow the accused to be released on bail.
2. Application for bail through summons is usually made to the Judge in chambers while application for
bail by motion is made to the court. STATE V. UWAH.
3. The only difference between the contents of summons and the content of a motion is in the
commencement phrase: Summons == ―LET ALL PARTIES …‖ Motion== ―TAKE NOTICE …‖
Factors That Govern Grant Of Bail

 Availability of the accused/defendant to stand trial: Whether the accused will appear to stand for his
trial (whether or not he will jump bail). DOKUBO-ASARI V. FEDERAL REPUBLIC OF NIGERIA.
 Prevalence of the offence. FELIX V. THE STATE i.e. where a particular offence is prevalent in an area
or at a given time, the court is usually slow to grant bail. In BAMAIYI V STATE, the spate of
assassinations in the country especially in Lagos was a factor the court considered to deny the
applicant bail.
 Criminal Records of the accused: If he is a first offender or not.
 Safety/protection of the accused/defendant.
 Medical or health grounds.
 Interference with police investigation or prosecution. The possibility of the accused interfering with
further investigation and the prosecution of the case. DANTATA V. IGP (bribe).
 Likelihood of commission of another offence while on bail. If there is likelihood that the
accused/defendant will commit any offence while on bail. R. V. JAMMAL.
 Evidence: The character of the evidence against the accused. ABACHA V. THE STATE, BAMAIYI V.
STATE.
 Destruction/concealment of evidence attempt: Whether the defendant/accused attempted to conceal
or destroy evidence. S. 162 (d) ACJA.
 Nature of the offence: The nature of the offence and the severity of the punishment prescribed.
PROCEDURE FOR APPLYING FOR BAIL AFTER IT HAS BEEN REFUSED BY THE MAGISTRATE
1. An application is made to the High Court by way Summons/Motion.
2. The Summons/motion for bail will be supported with:
 An affidavit;
 Certified true copy of the Charge Sheet;
 Certified true copy of the record of proceedings;
 Certified true copy of the Order of the Magistrate refusing bail;
 Written address.
Terms And Conditions Upon Which Bail May Be Granted
Terms of bail differ from the factors or guiding principles in exercising discretion to grant bail by the court.
Terms of bail are what the court after the grant of application for bail requires the accused person to do or
produce (after grant of bail). Thus the order of bail may be granted on certain conditions known as terms of
bail. The terms of bail imposed on an accused are dependent on the circumstances of each case. The terms
are imposed in other to secure the attendance of the accused in court for his trial. Thus, the terms of the bail
must not be onerous. If terms of bail are onerous, it would mean that the accused had been denied bail.
The following are terms of bail. It could be the combination of all or just one;
 Bail on self-recognizance: under this the accused is granted bail based on his standing and integrity
in the society and no bond is needed. Surety or bond is not required. Bails are hardly granted on this
term, only when the accused is a reputable member of the society and undertakes not to jump bail.
 Bail on the execution of bond for a fixed amount: in this, the accused is admitted to bail upon
executing a bond for a fixed amount, amount of which he will forfeit if he jumps bail. The accused
finances must be checked where the accused is the one undertaking the bond. Section 122 CPA, s.
118 ACJL and s. 345 CPC, 167 ACJA.
 Bail on a bond with a surety for a specified amount: The accused is admitted to bail upon executing a
bond and producing surety(ies). This is a bond with one or more sureties undertaking to pay due sum
upon default. The court can require the surety to execute a bond in addition to other terms imposed---
ONUGHI V. POLICE. The amount paid on bond is to be paid into an interest yielding account by the
Chief Registrar of the court The court can request for further terms like international passport, landed
properties within the jurisdiction among others.
 Deposit of money instead of a bond: this is when the accused is asked to deposit certain sum of
money instead of executing a bond and this is paid into an interest yielding account of the court.
Nothing happens to the money until there is default on the part of the defendant. It therefore follows
that if at the end of the trial, the defendant did not jump bail or default, the money will be refunded to
him. Ss.120 CPL, 349 CPCL, 116 ACJL, 165 ACJA.
NB: When an accused jumps bail by failing to appear as specified, the Magistrate or Judge may issue a
bench warrant for his arrest and to be brought before him. Note also that the surety may forfeit his
bond upon the accused absconding or of failing to show up in Court. However, a surety can always, if
he sees good reason to do so, apply to Court to be discharged. In this case, the accused will be
arrested upon a warrant until he procures another surety.
In Lagos under the ACJL, there are BOND PERSONS. These are persons registered by the chief judge to act
as bond persons within the jurisdiction of the court in which they are registered – S. 138 ACJL. The bond
person which can be an individual or corporate body, takes the defendant on bail, acting as their surety,
guarantor. If a bond person takes an accused on bail and the accused acts contrary to the terms of bail, he
can apply to court for his discharge as a surety.
Registration of bond persons
In Lagos State and FCT, individuals or corporate body can apply to be registered and licensed as bond
persons to legally stand as sureties for applicants. S. 138(1) ACJL, S. 187 ACJA. There are requirements for
registration. Such persons must be of integrity among other things. S. 138(6) ACJL, 187(6) ACJA.
The Chief Judge of Lagos state, FHC and FCT are empowered to make regulations for licensing of bonds
persons. There is a consequence for acting as surety without registration. The consequence is that a person
who engages in bail bond services without registration of his license is liable to a fine of five hundred
Thousand Naira or imprisonment for a term not exceeding 12 months or to both fine or imprisonment.
Can a woman be a surety? Ss. 118(3) ACJL, 167(3)ACJA. Previously, women were prevented from standing
as surety and this was contrary to section 42 of the CFRN. However, based on the position of the law, a
woman can stand as surety. Note that section 42 of the CFRN applies to prevent against discrimination on
the basis of sex, thus, although CPCL and CPL are silent on whether a woman can stand surety, section 42 of
CFRN will be instructive.
Circumstances When Bail May Be Revoked

1. Application for discharge by the surety: Where a surety applies to be discharged. ONYEBUCHI V FRN.
2. Death of surety: If a surety dies, his estate is discharged and the accused will be rearrested until he
provides another surety.
3. Re-arrest of the defendant/accused: When the circumstances are brought to the knowledge of the
Court that a person already granted bail ought not to have been granted bail, the Court may cause
him to be arrested and may commit him to prison until the trial, or if thought fit, reconsider and
increase the sum in which he had earlier bond himself.
4. Indicted of an offence: If an accused on bail by magistrate is indicted for an offence on information at
the High Court.
5. Failure of accused to appear in court without good reasons.
The Procedure For Applying For Remand Order/Obtaining Bail In Remand Order Proceedings Under
The Acja And Acjl
Procedure under the ACJA
 Suspect is brought to court.
 Application in the prescribed form 8, verified on oath and containing the reasons for the remand
request.
 Determination of existence of probable cause.
 Order of remand is made against the suspect pending the receipt of a copy of the legal advice from the
Attorney-General of the Federation and arraignment of the suspect before the appropriate court, as
the case may be.
 Bail: The court may, in considering an application for remand, grant bail to the suspect brought
before it, taking into consideration the provisions of sections 158 to 188 of this Act relating to bail. S.
295 ACJA.
 Maximum life span of a remand order: 56 days. S. 296 ACJA.
Procedure under the ACJL - S. 264(1)-(4) ACJL
 Suspect is brought to court.
 Application in the prescribed form K: The request form filed by the Police shall contain reasons for the
request for remand.
 Determination of probable cause.
 Order of remand pending legal advice of the Director of Public Prosecutions or the arraignment of such
person before the appropriate Court or Tribunal.
 Bail: Where applicable, a Magistrate shall grant bail.
 Maximum life span of a remand order is 60 days and possible 30 days depending on the discretion of
the court.
CONSTITUTIONAL SAFEGUARDS AVAILABLE TO AN ACCUSED

PERSON/DEFENDANT IN A CRIMINAL TRIAL
FAIR HEARING
Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled
to a fair hearing in public within a reasonable time by a court or tribunal. S. 36(4) CFRN.
Fair hearing is a trial or hearing conducted according to all legal rules formulated to ensure that justice is
done to all parties. AUDU V FRN.
Fair hearing may be likened to the issue of jurisdiction. It can be raised at any time of the proceedings even
on appeal and once an accused person has raised the issue of fair hearing, the court must urgently entertain
same before proceeding further with the trial.
The court/tribunal must be constituted in such a manner as to secure its independence and impartiality.
Parties cannot waive the right to fair hearing. JANG V. INEC.
Thus, a party cannot waive the independence of the tribunal. This is because right to fair hearing is
fundamental and the constitution of the tribunal to ensure independence is sacrosanct. The crux of fair
hearing is on the procedure leading to the determination of the case and not on the correctness of the
decision. ORUGBO V UNA. This is because justice must not only be done, but must be manifestly and the
undoubtedly seen to be done.
Fair hearing is encapsulated in two principles of law, Audi alterem partem (hear the other side) and Nemo
judex in causa sua (a person shall not be a judge in his own case).
Audi Alterem Partem

The first pillar which states that the accused must be heard, i.e afforded an opportunity to be heard. It does
not state that the defendant must be heard at all cost. An accused person who failed to use the opportunity
cannot complain on appeal. NBA V AKINTOKUN. The other party is entitled to foreclose the defendant where
he fails to utilize the opportunity to be heard only to frustrate the proceedings.
Also, the accused person must be given the opportunity to get a counsel of his choice and this must not be
denied the defendant. AKABUEZE V FRN.
The accused should also be given the opportunity to react to issues raised suo moto by the judge and as such
where the court raises an issue, it must hear both parties especially where the issues so raised by the court
are fundamental that they affect the mind of the court. Failure to hear both parties, the court is said to have
denied the parties the right to fair hearing.
However, where the issues are from the records before the court as submitted by the parties, failure to hear a
party, does not amount to absence of fair hearing.
There must be absence of bias and there must not be any likelihood of bias. A judge must not make
unguarded comments through conducts or words.
In this like, a reasonable man after witnessing a trial proceeding of an accused should go home with the
impression that justice has been done. Thus, the test for fair hearing is an objective test
(reasonable man).
Every court must adhere to the elements of fair hearing with no exception of any court. It entails all the
provisions of S. 36(6) CFRN and that the proceedings of the court should be concluded within a reasonable
time, and where it was held that reasonable time is dependent on the circumstances of the case.
Query:
 Does Accelerated hearing negate the principles of fair hearing? It does not negate the principle
of fair hearing provided the parties are given an opportunity to be heard. Thus, where the
accelerated hearing leads to a miscarriage of justice, the principle to fair hearing will be said to
have been violated. OYAKHERE V STATE.
 Does shielding of witnesses amount to denial of fair hearing? Depends on the circumstances of
each case as the judge must accord equal treatment to all parties. The test for fair hearing is
objective. YABUGBE V COP. Fair hearing applies to all court and tribunal, it is not court
sensitive.
Nemo judex in casua sua

No judge should preside over a matter in which he has a personal interest in or remotely
connected as held in. ORUGBO V UNA.
The judge must not be interested in the parties, subject matter, outcome of the proceedings and
pecuniary interest in the matter.
Hence, a judge:
 is not expected to be interested in the parties before it;
 must not be interested in the outcome of the proceeding;
 must not be unnecessarily attached to subject matter or any of the parties.
It has been held that a husband can appear as counsel before the wife who is a judge but the test is whether
or not likelihood of bias can be inferred from the circumstances of the case.
Essential elements of fair hearing

It has been established that the following must be observed to ensure fair hearing. EFFIOM V
STATE:
 The parties should be given the right to be heard;
 Trial must be held within a reasonable time;
 The court must be established by law;
 Adjudication must be independent;
 Adjudication must be impartial;
 Easy access to court;
 Equal treatment and opportunity to all concerned;
 Proceedings should be held in public
Miscarriage of justice is inherent in denial of right of fair hearing, a party who establishes denial of his right
to fair hearing is not required to prove miscarriage of justice.
Effect of breach of fair hearing. AUDU V FRN.
 Proceedings and the outcome of the decision arrived at by the court becomes a nullity. Importantly, it
is immaterial if that same decision would have still been reached in the absence of the violation.
PRESUMPTION OF INNOCENCE
Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved
guilty. S. 36(5) CFRN, OKORO V STATE. The above provides for a rebuttable presumption of law and the
prosecutor has the burden of proving the guilt of the accused beyond reasonable doubt pursuant to S. 135
EA. This is the legal burden. In Okoro v. State, it is the duty of the prosecution to prove the guilt of the
accused person beyond reasonable doubt.
However, the provision of s. 36(5) provides that nothing in the section is to invalidate any law which imposes
upon any such person (accused person) the burden of proving particular facts.
This is the evidential burden which can be on the accused—Ss. 139(3)(c), 140 EA. Pursuant to section
139(3)(c) EA, the defendant has the burden of proving the defence of insanity and intoxication. Section 140
EA provides that when a fact is within the knowledge of a person, the person shall have the burden of proving
same.
Note this burden is not affected by the provisions of the law as to strict liability offences as the prosecution
must still prove the actus reus otherwise the accused/defendant will be presumed innocent.
Again, the recent decision of the Supreme Court to the effect that the burden is on the accused to prove how
he amassed wealth, that is, proof of his lawful means of livelihood, is still in line with the provisions of the
CFRN above as there is a statutory provision providing for this evidential burden on the accused. DAUDU V.
FRN.
INFORMATION AS TO THE NATURE OF THE OFFENCE

It provides that the accused shall be entitled to be informed promptly in the language that he understands
and in detail of the nature of the offence. S. 36(6)(a) CFRN, IBRAHIM V STATE. The accused has the right to
have the charge/information explained to him before his plea.
An accused should not be convicted for an offence not charged with or for which he did not take a plea.
YAHAYA V STATE. In other words, as a general rule, an accused cannot be convicted of the offence that he
did not plead to. In criminal matters, it is plea that actually gives the court jurisdiction, therefore, where
accused did not take a plea, the court is robbed of its jurisdiction.
There are exceptions:
 The accused can be convicted of a lesser offence than the one which he is charged –In ADAVA V.
STATE, the accused persons who were charged and convicted for homicide punishable with death and
they were convicted for a lesser offence. The rationale is that where an accused is charged for a grave
offence, he is deemed to have notice of the lesser one and the ingredients for proving the graver offence
is included in proving the lesser offence. MAJA V STATE. E.g Murder to manslaughter, Rape to
attempted rape.
 Also an accused can be convicted of another offence by which he was not charged based on the
evidence disclosed at trial. NWACHUKWU V STATE. However, it has been held that failure to frame a
formal charge renders the decision perverse and unconstitutional.
ADEQUATE TIME TO PREPARE FOR HIS DEFENCE

Reasonable freedom to access every facility that will help him establish his case. This applies to both trial on
information and summary trial. S. 36(6)(b) CFRN, OKOYE V. STATE. The right of the accused person to
adequate time and facilities to prepare for his defence extends to seeking adjournment. An
accused/defendant is entitled to reasonable adjournment to secure attendance of witness. Failure to secure
the attendance of the witness, the court can issue witness summons.
In the trial off capital offence, the court must adjourn once accused counsel is not in court. UDO V STATE.
However, for other offences, the court is not bound to grant an adjournment for the attendance of accused
counsel. Adjournment is at the discretion of the court.
An accused person has right to proof of evidence and witnesses‘ statements. The counsel is to apply to the
police to give the certified true copy of proof of evidence. If police refuses, the counsel is to make an oral
application to the court for an order directing the police to release the certified true copy of the proof of
evidence. Where the proof of evidence is not available, that can serve as a ground for an adjournment.
COUNSEL OF CHOICE
The accused right to be defended by a legal practitioner of his choice---S. 36(6)(c) CFRN. The right to counsel
is not court sensitive, thus available to the accused before any court. In UZODINMA V. COP, where an
accused was denied legal representation before an Area court based on s. 28 Area Court Edict and s. 390
CPC, the Supreme Court held that the above provisions being inconsistent with the provision of the
constitution were void.
The accused must not be denied right to counsel. AKABUEZE V FRN. The court is duty bound to inform
accused of this right pursuant to S. 349(1)-(3) ACJA. Where an accused person due to his impecuniosity is
unable to pay counsel does not mean denial of right to be represented by a counsel.
It is pertinent to note that the accused insistence on hiring a disqualified/unqualified counsel does not mean
breach of this right. S. 2 LPA, AWOLOWO V MIN. INTERIOR AFFAIRS & ORS
Thus, the legal practitioner must be that which does not suffer any legal disability. Section 2 of Legal
Practitioners Act gave definition of a legal practitioner.
Where an accused cannot afford the services of a legal practitioner, application can be made to the Director-
General of the Legal Aid Council and a counsel will be assigned to such accused upon fulfilment of the
condition precedents. Where an accused appears in court without a counsel, he is entitled to be informed by
the court of his right to defend himself personally or through a counsel of his choice. Ss. 349(6)(a) and 267(1)
ACJA.
The general rule is that the defendant charged with a capital offence or an offence punishable with life
imprisonment shall not be allowed to represent and defend himself. OKOTOBO V STATE.
However, pursuant to S. 267(4) ACJA, the defendant can elect to defend himself in person after being
informed of the mandatory requirement of being represented and the court informs him of the risks of
defending himself in person. Where the defendant elects to defend himself in person, it is not a ground to void
the trial.
EXAMINATION OF WITNESSES
The right to call and examine his own witnesses and to cross-examine prosecution witness. S. 36(6)(d) CFRN.
This right arises at the end of the testimony of each and not ALL the prosecution witness---TULU V BAUCHI
N.A, HARUNAMI V BORNO N.A. He need not be represented by counsel.
The court cannot take over the examination on behalf of the accused person where he is unrepresented by
counsel as this will amount descending into the arena. Thus, the only duty of the court is to inform the
accused person of the right to examine each witness of the prosecution after each testimony. OKODUWA V.
STATE. However, S. 189(2) CPCL, provides that the court shall examine the witnesses of the prosecution
where there is no prosecutor in court (not obtainable in adversarial system like that of Nigeria).
There are three categories of examination of witnesses in criminal trials to wit; Examination-in-chief, Cross-
examination and re-examination--Ss. 214 and 215 EA.
The order of examination of witnesses—Ss. 216 and 217 EA.
 Prosecution witness where there is just 1 Defendant:
Prosecution (EIC) --- Defendant (Cross) --- Prosecution (RE)
 Prosecution witness where there are 3 Defendants:
Prosecution (EIC) --- 1st Defendant (Cross) --- 2nd Defendant (Cross) --- 3rd Defendant (Cross) ---
Prosecution (RE)
 2nd Defendant’s witness where there are 3 Defendants:
2nd Defendant (EIC) --- 1st Defendant (Cross) --- 3rd Defendant (Cross) --- Prosecution (Cross) --- 2nd
Defendant (RE)
The party that called a witness can cross examine such witness called when the witness is a hostile witness.
The counsel makes an application for leave of the court to declare such witness a hostile witness.
If three accused persons are represented by a counsel, then cross-examination may be done at a stretch or
randomly by the counsel. However, where different counsel represent the various accused persons, the cross-
examination will be done in order of the accused persons.
INTERPRETER
Where an accused does not understand the language of the court, he has a right to an interpreter. S. 36(6)(e)
CFRN, OGUNYE v. STATE.
Who is an interpreter? An interpreter means a person who translates especially orally from a language to
another. Who may be an interpreter? Any adult person knowledgeable in the defendant‘s language, and that
of the court (which is English language). No special qualification is required.
The court can only record what is interpreted to it and not the exact words of the accused.
Interpretation should be adequate and as such, the interpreter must be accurate and comprehensive in his
interpretation of the proceedings of the court to the accused. He must interpret everything said by the
witnesses, complainant and the court.
The judge can only use its proficiency in the language to ensure that the interpretation is accurate and
correct but it cannot interpret for the accused as it cannot descend into the arena.
Where an accused is charged with criminal offence, and where he does not understand the language of the
court. The accused is entitled to an interpreter at no cost. NWACHUKWU V. STATE. Where the accused
understands the language in which evidence was given against him, an interpreter is not necessary.
It is the duty of the accused to tell the court or inform the court that he does not understand the language of
the court. BAYO V FRN.
The interpreter must be independent and must not be interested in the outcome of the matter. Thus, the
counsel/co-accused cannot interpret to the accused.
The right to an interpreter cannot be raised for the first time on appeal except it was raised and denied at the
lower court.
RETROACTIVE LEGISLATION
No person shall be held guilty of a criminal offence on account of any act or omission that did not, at the time
it took place constitute such an offence and no penalty shall be imposed for any criminal offence heavier than
the penalty in force at the time the offence was committed. S. 36(8) CFRN, EGUNJOBI V FRN. Under this
right, there are two limbs:
 At the time of the act or omission, there was no law creating such offence but subsequently a law is
enacted to punish such act or omission. The constitution says that in that circumstance, no person
can be said to have committed an offence.
 The second limb is that if the offence was punishable with a fine as at the time it was committed but
subsequently an Act was enacted making the punishment imprisonment, the constitution says a
person can only be sentenced to a fine.
Thus, before a person can be liable for conviction, his act or omission must constitute an offence
as at the time of doing or omitting to do so.
DOUBLE JEOPARDY (AUTRE FOIS ACQUITS OR CONVICTS)

It provides that no person who shows that he has been tried by any court of competent jurisdiction or
tribunal for a criminal offence and either convicted or acquitted shall again be tried for that offence or for a
criminal offence having the same ingredients as that offence save upon the order of a superior court. S. 36(9)
CFRN
The right is also known as ‗autre fois convict‘ or ‗autre fois acquit‘ or ‗bar plea‘. The plea cannot be raised on
appeal after conviction. EDU V COP. The appeal court has the power to order for a fresh trial before a
different court where the judge of the superior court is of the opinion that there is a miscarriage of justice
from the trial court.
There are four conditions or ingredients which must be fulfilled and must co-exist before the right can avail a
defendant:
1. Competent jurisdiction: The first trial was before a court of competent jurisdiction. IBEZIAKO V COP.
For instance, the magistrate courts are not empowered to try a person for capital offences. If a
magistrate tries a person for the offence of murder and the person is charged before the High Court,
such person cannot plead autre fois acquit or convict. UMEZE V. STATE.
2. Ended in Conviction or Acquittal: That the trial ended in a conviction or acquittal. Thus, a nolle
prosequi entered by an AG or a withdrawal by a prosecutor before the accused presented his defense
would amount only to a mere discharge and not acquittal.
3. Pursuant to a Criminal Law: That the first trial was a criminal charge under a known legal code. Thus
where the accused was tried under the provisions of the constitution of an association to which he
belongs, that would not be a criminal charge. R V. JINADU.
4. Same ingredients: That the offence for which the accused is now charged is the same with that he was
previously charged. The ingredients are the same. Thus, if B is charged for stealing C‘s book and
convicted by a court of competent jurisdiction, B cannot be charged for stealing C‘s book again.
PARDON
It provides that no person who shows that he has been pardoned for a criminal offence shall again be tried for
that offence. S. 36 (10) CFRN. Thus, where a person who was convicted of an offence (criminal) has been
pardoned, he can no longer be tried for that offence. The right to pardon is the express right of the President
and Governor. Ss. 175 and 212 CFRN.
Pardon may be granted conditionally or unconditionally. Pardon presupposes conviction. If already convicted
and subsequently pardoned he cannot be referred to as an ex-convict again.
The effect of pardon granted to a convicted person is that it approbates the incident of conviction and it is
deemed that the beneficiary has never committed an offence. The proof of pardon is by producing an
instrument of pardon granted by the President or Governor called CERTIFICATE OF PARDON.
Proof of pardon goes to the root of the offence. Pardon is different from amnesty, in that in amnesty, the
persons involved have committed an offence and the state decides not to prosecute them on the agreement
that they would not commit the offence again.
SILENCE
No person who is tried for a criminal offence shall be compelled to give evidence at the trial. S. 36(11) CFRN,
S. 180(a) EA. Thus, it is the right of an accused to elect whether to give evidence or not (he may call witnesses
but he may not testify) (he may testify and not call witnesses, he may testify and call witnesses and he may
not testify and he may not call witnesses) An accused person, even though a competent witness is not a
compellable witness. Ss. 179 & 180 EA.
NB: Where an accused remains silent – elects not to give evidence, the law forbids the prosecutor or court
from submitting that the silence amounts to an admission of guilt but the prosecutor may comment. S. 181
EA. However, the comment should not suggest that the accused failed to give evidence because he is guilty of
the offence charged.
OFFENCE KNOWN TO LAW

Subject as otherwise provided by this constitution, a person shall not be convicted of a criminal offence
unless that offence is defined and the penalty thereof is prescribed in a written law. S. 36(12) CFRN, AOKO V
FAGBEMI. Thus, where one element is absent, the court cannot try such person as there is no infraction.
ATTENDANCE OF PARTIES AND ARRAIGNMENT

Effect of absence of the accused person
The general position of the law is that an accused person must always be in court during the whole of his
trial. ADEOYE V. STATE.
Exceptions
Under the CPL
 In the magistrate court, where the offence is one that attracts a fine of N100 or imprisonment not
exceeding 6 months or both, the court shall where the offence is punishable by fine only and where
the accused pleads guilty in writing or in person or through his legal practitioner, on application of the
accused, dispense with the presence of the accused (the court may dispense with the presence where
the offence is punishable by a fine or imprisonment or both). S. 100 CPL.
HOWEVER THE ACCUSED CANNOT BE SENTENCED IN ABSENTIA.
 The court is investigating into the unsound mind of the defendant. S. 230(2) CPL
Under the ACJA
 In the magistrate court, where the offence is one that attracts a fine of N10, 000 or imprisonment not
exceeding 6 months or both, the court shall where the offence is punishable by fine only and where
the defendant pleads guilty in writing or in person or through his legal practitioner, on application of
the defendant, dispense with the presence of the defendant (the court may dispense with the presence
where the offence is punishable by a fine or imprisonment or both). S. 135 ACJA. However the
accused cannot be sentenced in absentia.
 Misconduct at trial. S. 266(a) ACJA.
 At the hearing of an interlocutory application. S. 266(b) ACJA.
 Continue with trial, in the absence of the defendant, where the defendant who was granted bail fails to
attend the court without reasonable explanation and the court has made an adjournment two times.
S. 352(4) ACJA. Trial may be continued in absentia but sentence must be delivered only in the
presence of the defendant. S. 352(5) ACJA.
Consequences and steps after failing to attend court
 Warrant of arrest where the summons have been duly issued and served. S. 352(1)(a) ACJA.
 Adjourn hearing of the case (where there is proof that the summons was not duly served). S. 352(1)(b)
ACJA.
 Continue with trial, in the absence of the defendant, where the defendant who was granted bail fails to
attend the court without reasonable explanation and the court has made an adjournment two times.
Trial may be continued in absentia but sentence must be delivered only in the presence of the
defendant.
 The court can issue a bench warrant where the person is on a bail- Please Note: a bench warrant is
issued when a defendant jumps bail and not when the defendant has been duly summoned but he
fails to appear before the court.
 After arrest, commit to prison.
 The court can issue a reproduction warrant: this is directed to the prison where the defendant is kept
if the defendant is not on bail.
Effect of absence of the complainant

At all times, the complainant must be present when the case is fixed for hearing. The presence of the
complainant in court is an evidence of his willingness to prosecute the case. Thus, where the state is absent
but the defendant is present, the court may make possible orders to wit;
 Where the complainant has due notice of the time and place of hearing and does not appear in court,
the court may dismiss the complaint. Consequently, the court will discharge the defendant/accused
person. The discharge however does not amount to acquittal.
 The court may upon reasonable satisfaction of the reason for which the complainant is absent,
adjourn the hearing of the complainant on some future date as the court thinks just. S. 351 ACJA.
Effect of absence of both accused and complainant

Court to make order as the justice of the case requires. Ss. 236 ACJL, 353 ACJA.
Such order may entail:
 Court may adjourn to compel the attendance of both parties.
 Court may make an order as to Payment of costs.
Effect of absence of material witnesses

Both parties are entitled to determine the number of witnesses to call. No particular number of witnesses is
required to establish a case nor must the Prosecution call all the witnesses listed in his information. It can
call only one witness if it is sufficient. ADAJE V. THE STATE.
The Court may compel the attendance of witnesses by issuance of any of the following:
 Witness Summons on any witness.
 Warrant of Arrest if a witness has earlier disregarded a Witness Summons.
 Subpoena which may be subpoena duces tecum which is to order a witness to produce document(s)
only or subpoena ad testificandum which is to order a witness to come to Court to testify only.
Effect of absence of counsel to the accused

The options are as follows:
 To engage another counsel.
 Get support from legal Aid.
 Defend himself (except in capital offences).
DUTIES AND ROLES OF REGISTRAR, JUDGE AND COUNSEL IN CRIMINAL TRIALS

Court Registrars
 Accept all processes for filing.
 Ensure that exhibits are properly kept and marked.
 They are responsible for keeping of case files.
 They are responsible for preparing weekly case list/bar list.
 They are in charge of the diary of the court; helps the judge to know the next adjourned date.
 Responsible for reading of charges.
 Attend to the need of the judges.
 They act as an interpreter to an accused person who needs one or facilitate an interpreter for the
accused or witness.
 They are responsible for affirming or swearing in witnesses in trial.
 Ensures hearing notices and other court processes are served.
 Where an accused is sentenced to death, certificate issued by judge is usually sent by the registrar to
the prison officer and sheriff. The duties are not exhaustive
Presiding judge
 He must be an unbiased or impartial umpire who is fair and he is seen to be fair to all parties.
 He must maintain the aura of impartiality all through the trial and never descend to the arena of
conflict.
Counsel (Rule 37 RPC)
Prosecuting Counsel
 Duty to be present in court.
 Duty to avoid forum shopping.
 Duty to call material witness
 Duty to prosecute the case and ensure justice is done. This is the primary duty of prosecuting
counsel, that is, not to convict at all cost, but to ensure that justice is done.
 Prosecuting counsel shall not institute or cause to be instituted a criminal charge if he knows or
ought reasonably to know that the charge is not supported by the probable evidence.
 Prosecuting counsel shall not suppress facts or secret witnesses capable of establishing the innocence
of the accused person.
 It is the duty of the prosecuting counsel to disclose to the accused person or his counsel the existence
of evidence known to the prosecution that tends to negate the guilt of the accused or mitigate the
degree of the offence or reduce the punishment.
Defence Counsel
 A defence counsel must ensure that an accused is defended with reasonable skill and attention
especially those charged for capital offence. He is to exert himself by all fair and honourable means to
put before the court all matters that are necessary in the interest of justice.
 A defence counsel who adopts brief of an accused is expected to personally conduct the defence except
under any sufficient unforeseen circumstances.
 Where an accused person confesses his guilt to a defence counsel, the counsel is not t offer evidence
to cover the guilt of the accused – Rule 37(3) RPC. What he is expected to do is to step up the defence
before the court and allow the court to decide. He is not to produce contrary evidence in court.
 A defence counsel, generally, must not return brief of an accused charged with capital offence.
 A defence counsel must not refuse a brief solely on the ground that he does not know who will pay
him.
 For an indigent accused person, if the court calls on him to defend such person, he is to do it
diligently.
 A defence counsel has a duty to preserve the confidentiality of the accused person. This duty extends
to other counsel and staff in his law firm. Even after the case, the defence counsel cannot disclose.
 A defence counsel has a duty to appear for the accused person throughout the trial. If he wants to
disengage, he is to give the accused person time to get another counsel.
CONDUCTING A VALID ARRAIGNMENT

 Entry of the dock unfettered: Where a defendant appears before a court on a summons, he shall be
required to enter the dock, to stand or sit in it, except where circumstances do not permit as may be
directed by the court. S. 269 ACJA. The defendant must be brought to the court unfettered. Note that
the standing of the policemen behind the accused persons in the dock is a fetter. However, the court
may direct otherwise that the defendant be fettered, where the defendant is violent, as to do harm to
himself or other persons in court; and where the defendant has attempted to escape.
 Read and explain the charge: The registrar or other officers of the court then reads the charge to the
accused person and explains to the accused person (to the satisfaction of the court) in the language he
understands.
 Ask if the accused is guilty or not: At the commencement of the hearing, the court shall state or
cause to be stated to the defendant, the substance of the complaint and shall ask him whether he is
guilty or not.
 Plea taking: The defendant shall take his plea in the dock, except the judge otherwise directs. S.
356(8) ACJA. The defendant is to be called upon to plead instantly to the charge.
ESSENTIALS
a) Plea must be taken by the accused person himself.
b) Where there are several defendants, each should be taken individually. Thus, there is nothing like
block plea. There can be a block reading of the charge.
c) There is nothing like proxy plea. Counsel cannot take the plea on behalf of his client.
d) The court records the individual plea of the defendants. When the court records a block plea, the
arraignment is a nullity.
e) Failure to record a plea, trial is a nullity.
f) If more than one count, there is a block reading and the plea on each count is to be recorded.
g) The registrar must read over and explain to defendants the count read.
OPTIONS OPEN TO AN ACCUSED PERSON ON ARRAIGNMENT

When the charge has been read to the accused and he understands it, he can do any of the
following:
Preliminary objection
Preliminary objection is to be raised before plea. Upon taking the plea without raising an objection, the
defendant would be deemed to have submitted to the jurisdiction of the court. Raising preliminary objections
involves issues that go to the jurisdiction of the court to try the accused person. Such preliminary objections
include the following:
 Jurisdiction of the court: this involves stating that the court is not a competent court to try the offence
alleged to have been committed. It could be procedural such as lack of service.
 The objection could be as to defect in charges. The charge offends the rules against ambiguity,
duplicity, joinder of offences or offenders.
 Also on the ground of failure of the prosecutor to obtain the consent (south excluding Lagos and
under ACJA.) or leave (north) of the court before filing the information or charge in the High Court.
 He could raise bar plea: this is plea of autre fois convict or acquit. Thus, the accused had been earlier
charged on same offence with a criminal charge before a court of competent jurisdiction and either a
conviction or acquittal was obtained – s. 36(9) CFRN.
 Plea of pardon: the accused can raise preliminary objection as to the fact that he has been pardoned
for the offence for which he is being charged either by a Governor or President. S. 36(10) CFRN. The
certificate of pardon issued by either the President or Governor must be produced in court.
 He can plead that the offence has been statute barred. Example treason is 2 years (43 CC, custom
offence is 7 years(176(3)CEMA, sedition is 6 months(54 CC, defilement of a girl under 13 is 2
months.(218 CC).
Refusal to plea
There must be an outward manifestation of a deliberate act of refusal to plea. He understood the charge read
to him. Where the defendant has refused to plea, the court will do the following. GAJI V STATE.
 The court will ask the defendant why he refused to plead.
 The court will ask him to plead again.
 If the accused person refuses again to plead, the court will enter a plea of not guilty for the accused
person and the trial will commence.
Standing mute (Failure to plea)

No deliberate act evincing refusal to plea. If the accused stands mute, he is silent and does not speak.
 The court will investigate the cause of muteness that is, whether it is out of malice or as a result of
natural causes (visitation of God) and would use medical or other evidence to determine such.
 If malice the court will enter a plea of not guilty. YESUFU V STATE and proceed with the Trial.
 If it is as a result of natural causes, the defendant will be detained at Governors pleasure. R V OGOR
and would be subject to use medical treatment.
 Where the accused is found to be deaf and/or dumb, the court shall further take evidence to
determine whether the accused can be made to understand and follow the proceedings by sign
language. If so, trial shall proceed; if not, the accused shall be remanded in custody or release on bail,
or until the Governor pleasure is known.
Plea of guilty
An accused person can plead guilty to the charge read to him. For every other offence except capital offences,
when an accused pleads guilty, the court is to enter the plea of guilty and observe the following:
 The court must be satisfied that the accused understands the charge read to him. The basic
ingredients constituting the offence must be explained to the accused.
 The plea of guilty of the accused must be recorded as clearly as possible in the words used by him.
Thus, the plea must be unequivocal and unambiguous.
 Invite the prosecution to state the facts of the case again and summarise the evidence.
 The court will enquire from the defendant whether his plea of guilty is in relation to the facts stated by
the prosecution.
 The Court will not take or record the plea of guilty if the accused rescinds on the facts stated by the
Prosecution.
 Where the offence to which the accused has pleaded guilty can only be proved by scientific proof or
expert evidence they must be tendered in court. STEVENSON V POLICE.
 Thereafter the court will convict and sentence the defendant accordingly.
A plea of guilty can be withdrawn at any time before conviction or before the court accepts the plea of guilty
Once the court has given verdict and conviction, such plea can no longer be withdrawn.
Plea of guilty in capital offences
Plea of not guilty to be recorded notwithstanding the plea. OLABODE V STATE.
Plea of guilty with reasons
A plea must be unequivocal. Thus, where the plea of guilty is with reasons, the court will enter a plea of not
guilty and proceed with trial.
Plea of guilty to another offence or lesser offence charged
Where the defendant elects to plead to a lesser offence and the court accepts plea, the court will follow these
steps:
 Inquire of the prosecution as to whether he consents to the plea or not.
 If the prosecutor consents, the court will direct that the prosecution amend his charge to reflect the
lesser offence.
 Thereafter, the defendant is asked to take the plea again.
 The court will record plea as nearly as possible in the words used.
 The procedure will be followed as to a plea of guilty.
However, where the prosecutor does not consent, the court will proceed to trial for the graver offence
stipulated in the charge.
If at the end of the trial, the defendant is not guilty of the graver offence but guilty of the lesser offence pled
to, the prosecution will be held to his election and consequently the defendant will be acquitted and
discharged accordingly.
Plea of not guilty

This is the most common plea in criminal trials. This is known as pleading the general issue. Every person by
pleading generally the plea of not guilty shall without further form be deemed to have put himself upon his
trial. Ss. 212 ACJL, 273 ACJA.
Plea of not guilty by reason of insanity

The plea of not guilty by reason of insanity, is that at the time of the Commission of the offence he suffered
from mental infirmity. Thus, the relevant time is at the time of the Commission of the offence and not the
time of arraignment. When an accused raise the defence, the court is to consider the following:
 Whether an offence was committed; whether the accused did commit the offence ; and whether he was
insane at the time of committing the offence.
 If the accused is found not to have committed the offence, he shall be discharged and acquitted and
the court shall not decide the issue of insanity.
 If the offence was committed by the accused, the court would determine whether the accused was
insane or sane at the time of committing the offence. The defendant has the evidential burden to prove
insanity. Section 139(3)(c) Evidence Act. If sane, accused to be convicted upon proof beyond
reasonable doubt. If insane, the plea of not guilty by reason of insanity will be upheld and where the
insanity still subsists, the defendant will be detained at the Governor‘s pleasure. ADAMU V STATE.
MEANING AND PROCEDURE FOR PLEA BARGAINING
Plea bargain is the process whereby the defendant himself or through his counsel and the prosecutor in a
criminal case enter negotiations to agree a mutually acceptable way of disposing the case – PLEA
BARGAINING MANUAL 2016. This manual guides prosecutorial discretion when it comes to plea bargaining.
―Plea bargain‖ means the process in criminal proceedings whereby the defendant and the prosecution work
out a mutually acceptable disposition of the case; including the plea of the defendant to a lesser offence than
that charged in the complaint or information and in conformity with other conditions imposed by the
prosecution, in return for a lighter sentence than that for the higher charge subject to the Court‘s approval.
From here there are two types of bargain:
 charge bargain – this relates to the charge that the defendant is charged with, and would lessen the
number of counts a defendant will face; and
 sentence bargain - this is agreeing on the sentence to be imposed on the defendant.
Invariably under the ACJA the court is not involved in the bargaining process. The court must approve such
bargain before it becomes a judgment. Sometimes it‘s a tripod between the victim, the state and the
defendant.
Procedure for plea bargaining (S. 270 ACJA)
1. Offer of plea bargain: Notwithstanding anything in this Act or in any other law, the Prosecutor may
receive and consider a plea bargain from a defendant charged with an offence either directly from
that defendant or on his behalf; or offer a plea bargain to a defendant charged with an offence.
2. Stage when the prosecution may offer plea bargain: The prosecution may enter into plea bargaining
with the defendant, with the consent of the victim or his representative during or after the
presentation of the evidence of the prosecution, but before the presentation of the evidence of the
defence.
3. Interest of justice etc to be considered: Where the Prosecutor is of the view that the offer or
acceptance of a plea bargain is in the interest of justice, the public interest, public policy and the
need to prevent abuse of legal process, he may offer or accept the plea bargain.
4. Agreement is entered: The prosecutor and the defendant or his legal practitioner may before the plea
to the charge, enter into an agreement in respect of the term of the plea bargain which may include
the sentence recommended within the appropriate range of punishment stipulated for the offence or
a plea of guilty by the defendant to the offence(s) charged or a lesser offence of which he may be
convicted on the charge; and an appropriate sentence to be imposed by the court where the
defendant is convicted of the offence to which he intends to plead guilty.
5. Public interest etc to be considered before agreement: The prosecutor may only enter into an
agreement as in above after consultation with the police responsible for the investigation of the case
and the victim or his representative, and with due regard to the nature of and circumstances
relating to the offence, the defendant and public interest.
6. Inform the court of the agreement: Where a plea agreement is reached by the prosecution and the
defence, the prosecutor shall inform the court that the parties have reached an agreement and the
presiding judge or magistrate shall then inquire from the defendant to confirm the terms of the
agreement.
7. Ascertainment from the defendant: The presiding judge or magistrate shall ascertain whether the
defendant admits the allegation in the charge to which he has pleaded guilty and whether he
entered into the agreement voluntarily and without undue influence and may where:
 he is satisfied that the defendant is guilty of the offence to which he has pleaded guilty, convict the
defendant on his plea of guilty to that offence, and shall award the compensation to the victim in
accordance with the term of the agreement which shall be delivered by the court; or
 he is for any reason of the opinion that the defendant cannot be convicted of the offence in respect of
which the agreement was reached and to which the defendant has pleaded guilty or that the
agreement is in conflict with the defendant‘s right referred to in subsection (6) of this section, he shall
record a plea of not guilty in respect of such charge and order that the trial proceed
8. References to the agreement: Where a trial proceeds as contemplated under subsection (15) (a) or de
novo before another presiding judge or magistrate as contemplated in subsection (15) (b):
 no references shall be made to the agreement;
 no admission contained therein or statements relating thereto shall be admissible against the
defendant; and
 the prosecutor and the defendant may not enter into a similar plea and sentence agreement.
9. Finality of judgment: The judgment of the court contemplated in subsection 10 (a) of this section
shall be final and no appeal shall lie in any court against such judgment, except where fraud is
alleged.
TRIAL PREPARATION AND EVIDENCE

CASE THEORY/TRIAL PLAN
A legal practitioner is expected to always prepare for trial and the beginning of trial preparation is the case
theory. The case theory is the line of argument to be adopted by a counsel. The case theory in civil cases
differs from the one in criminal cases because of the burden of proof required in criminal cases.
Ask yourself the following questions, it will aid in your summary
 Who is the person accused?
 What is the charge against the accused?
 What are the ingredients having regard to the statute creating the offence?
 What are the facts available to prove this offence?
 What are the basic principles guiding the offence?
 Are there likely defences available to the accused in this case?
Trial plan is a graphic statement on how to actualize the case theory. It deals with how to actualize your case
theory. After development of a line of argument, trial plan is concerned with how the line of argument will be
accepted by the court. Thus, trial plan is the systemic way you intend to accomplish your goal.
THE BURDEN AND STANDARD OF PROOF

Burden of proof
When discussing the burden of proof in criminal litigation, S. 36(5) CFRN, on presumption of innocence,
must be made reference to. S. 36(5) CFRN is the foundation of the burden of proof in criminal litigation/trial.
The legal burden of proof of guilt is static and it always rests on the prosecution. Ss. 131 and 135 EA.
The prosecution is to prove all the ingredients of the offence. Accused is not bound to prove his innocence.
How to discharge burden of proof
 Oral evidence.
 Real evidence.
 Direct evidence.
 Documentary evidence.
 Circumstantial evidence– cogent, unequivocal, overwhelming and must lead to one conclusion.
 Confessional statement.
In discharging the burden of proof on the prosecution, the prosecution has power to determine how many
witnesses to call, as it is the duty of the prosecution to determine the number of witnesses to prove a case. S.
200 EA. He is not bound to call all the witnesses listed on the proof of evidence. ADAJE V. STATE. However,
the defence may through the court summon the witness listed on the proof of evidence not called by the
prosecution (they become the witness of the defence).
EXCEPTIONS
 Treason and treasonable offences (at least two witnesses required, but does not apply to the overt act
of killing the President).
 Perjury (evidence of witness is to be corroborated).
 Speed limit offence (at least two witnesses required, but not when it involves the evidence of a duly
authorised officer of the relevant authority, who was at the time of the commission of the offence,
operating any mechanical, electronic or any other device for recording of speed of a moving vehicle, the
record of such device being additionally tendered in evidence against the defendant).
 Sedition (evidence of witness is required to be corroborated).
Standard of proof
Under S. 135(1) Evidence Act, the legal burden of proof on the prosecution is to be proved beyond reasonable
doubt. WOOLMINGTON V DPP. Sub-section 3 states that if the prosecution proves the commission of a crime
beyond reasonable doubt, the burden of proving reasonable doubt is shifted on to the defendant.
Evidential burden which can be on the accused is to be discharged on the balance of probabilities. Section
137 Evidence Act provides that where in any criminal proceeding the burden of proving the existence of any
fact or matter has been placed upon a defendant by virtue of the provisions of any law, the burden shall be
discharged on the balance of probabilities.
Basis for admissibility of evidence in criminal trials

 Admissibility of computer generated evidence:
In any proceedings, a statement contained in a document produced by a computer shall be admissible
as evidence of any fact stated in it of which direct oral evidence would be admissible, if it is shown
that certain conditions are satisfied in relation to the statement and computer in question. S. 84(1) EA
 Character evidence:
Evidence of bad character of the accused person is generally inadmissible. One way of proving bad
character is evidence of previous conviction – S. 180(g) EA which provides that ―a person charged and
called as a witness in pursuance of this section shall not be asked and if asked, shall not be required
to answer any question tending to show that he has committed or been convicted of or been charged
with any offence other than that with which he is then charged or is bad character unless.....‖. There
are exceptions to the general rule, like where the proof of previous conviction is admissible to show
that he is guilty of the offence with which he is then charged; or where he tries to establish his own
good character; or where he gives evidence against a co-accused, etc.
 Evidence of children:
A child is any person who has not attained the age of 14 years. S. 209(1) EA. The procedure is that a
child should not be sworn or affirmed. A child can only testify if the court is satisfied that he
understands the questions put to them or can give rational answers to those questions or he
possesses sufficient intelligence to justify the reception of his evidence; and He understands the duty
of speaking the truth.
Where such unsworn evidence of a person under 14 years is given, an accused person shall not be
convicted of the offence charged with unless the testimony of such child is corroborated by some other
material evidence in support of such testimony implicating the defendant/accused person – S. 209(3)
EA.
However, a child who has attained the age of 14 years, shall give sworn evidence at all times. S. 209(2)
EA
 Evidence of an accomplice and tainted witness:
An Accomplice is any person who pursuant to s. 7 of the Criminal Code may be deemed to have taken
part in committing the offence as the defendant or as an accessory after the fact to the offence or a
receiver of stolen goods – S. 198(2) EA. It is not compulsory for an accomplice to be a co-accused as
the AG has the discretion to bring charges against only A and B, where A, B, C and D were involved in
the offence. Where an accomplice gives evidence against the accused, his evidence does not require
corroboration. S. 198(1) EA provides that an accomplice shall be a competent witness against a
defendant and a conviction is not illegal merely because it proceeds upon the uncorroborated
testimony of an accomplice. However, in cases when the only proof against a person charged with a
criminal offence is the evidence of an accomplice, uncorroborated in any material, particular
implicating the defendant, the court shall direct (warn) itself that it is unsafe to convict any person
upon such evidence - IDAHOSA V. STATE. Failure to warn itself may not nullify the conviction
depending on the quality of testimony by of the single witness.
An accomplice is different from a tainted witness. A tainted witness is a witness who is not an
accomplice but who by the evidence he gives may and could be regarded as having some purpose of
his own to serve. In YOHANNA V. FRN, the Court of Appeal had stated that even if a witness was held
to be tainted witness, his evidence cannot by that fact alone become unreliable. All that the law
requires is that the evidence of such a witness should be treated with caution and that the court
should be wary in reaching a verdict of guilt on the uncorroborated evidence of such a witness.
 Evidence of co- defendants
Where defendants are tried jointly and any of them gives evidence on his own behalf which
incriminates a co-defendant, the defendant who gives such evidence shall not be considered to be an
accomplice – S. 199 EA. Where co-accused gives evidence against each other, since they are not
accomplice for the purpose of giving such evidence, the court need not warn itself but the offence
given by the co-accused needs to be corroborated. However, where the co-accused affirms the
incriminating evidence against him, the court can convict him based on the evidence of the co-
accused. GBOHOR V. STATE.
COMPETENCE AND COMPELLABILITY OF WITNESSES

All persons are competent to testify unless the court considers that they are prevented from understanding
the questions put to them or from giving rational answers to those questions by reason of tender years,
extreme old age, disease whether of the body or mind, any other cause of the same kind – S. 175(1) EA.
A person of unsound mind is competent to testify unless he is prevented by his mental infirmity from
understanding the questions put to him and giving rational answers to them – S. 175(2) EA. A dumb witness
can give his evidence by signs or in writing made in the open court. Such evidence shall be deemed to be oral
evidence – S. 176(1) & (2) EA.
Exceptions to general rule of competence and compellability
 Accused person is only competent witness for his own offence and cannot be compelled as an accused
person can only testify as a witness only upon his own application. S. 180(a) EA, 36(11) CFRN and
when he is a witness, he may be asked any question in cross-examination notwithstanding that it
would tend to incriminate him as to the offence charged.
 The President, Vice President, Governor and Deputy Governor is competent but not compellable. S.
308 CFRN.
 Section 1(1) DIPA covers all diplomats, their official or domestic staff who are not Nigerians, and
members of the families of official staff. Diplomats. Note that they can waive right. The act doesn‘t
cover aliens – they are both competent and compellable. If they cannot speak the language of the
court, the court will provide an interpreter.
 A spouse is a competent and compellable witness for the accused. However, a spouse is generally not
a compellable witness for the prosecution except for Sexual offences; Offences against property of the
spouse; or Offences involving violence against the spouse.
NB: Other witnesses ought to be out of court and out of hearing. S. 212 EA. This may not include
professional witnesses. This is because the testimony is based on what he knows and not necessarily
based on what he hears. It is a distinct testimony. What is the effect of a witness that remains in
court? The trial will not be a nullity and the testimony will not be expunged but less weight will be
attached to the testimony of the witness who remained in court. Does a competent witness lose his
competence because he listened to the testimony or part of other witnesses? No, he doesn’t, but the
weight to be attached is reduced.
PRESENTATION OF CASE FOR THE PROSECUTION: EXAMINATION OF

WITNESS
Examination-in-Chief S. 214(1) EA
This is done by the party that calls the witness and questions are put to the witness by the party that calls
him. The purpose is to put before the court a clear story of that party that called him. It is to elicit from the
witness admissible, material and favourable evidence. Questions are to be limited to relevant facts in issue.
Objectionable Questions
 Leading questions;
 Questions tending to give hearsay evidence;
 Questions eliciting evidence of opinion.
 Questions eliciting oral evidence from the contents of a document.
 Also irrelevant questions should not be asked.
The general rule is that leading questions are not allowed in examination in chief of a witness. S. 221(2) EA.
However, there are exceptions to this principle:
 Cross-examination of hostile witness;
 Undisputed facts: Questions relating to undisputed facts;
 Permitted by the court;
 Introductory matters: When it relates to introductory matters;
 Sufficiently proved facts: Facts which have already been sufficiently proved.
Effective questioning technique
Open Question: It is better used in examination in chief because it allows the witness tell the story
without undue interruption.
Closed Questions: After getting the necessary information, closed questions can then be asked, so that
a witness does not go beyond what is required. Closed questions restrict the answer a witness will give
to the question asked. It is used in Examination in chief to keep the witness in check and for direct,
succinct, specific information.
Cross Examination S. 214 (2) EA

Cross-examination involves questions put to the witness by the other party after examination-in-chief. While
examination-in-chief is compulsory, cross-examination is not, as it is used only if the other party desires to –
S. 215(1) EA. The right of the accused person to cross examine if provided for under section 36(6)(d) CFRN.
They can choose to waive such constitutional right, but the right cannot be denied.
If the counsel on the opposing side has no real issues to prove by the questions, then he should refrain from
asking them. Closed questions are usually used in cross-examination. Leading questions may also be asked.
S. 221(4) EA. Questions need not be confined to facts raised in exam-in-chief provided they are relevant to the
facts. However, questions that will not serve the purpose of cross examination will not be allowed.
In cross-examination, even though it is alleged that the sky is your limit, there are objectionable questions:
 Questions relating to the credit of the witness which are not relevant to the proceedings, the court
shall decide whether or not the witness shall be compelled to answer it (character). S. 224(1)EA.
 Questions are not to be asked without reasonable grounds. S. 225 EA.
 Indecent and scandalous questions. S. 227 EA.
 Questions intended to insult or annoy. S.228 EA.
 Questions that are needlessly offensive. S. 228 EA.
There must be a purpose for cross-examination. The purpose of cross-examination could be:
 To discredit the witness, to let the court see that the witness is not a witness of truth.
 To establish your own case. Thus, documents can be tendered through the witness if the document is
relevant.
 To test the accuracy, credibility or veracity of his testimony which must be done within the bounds of
law and rules of evidence; or
 To demolish or weaken witness testimony which must also be done within the bounds of law and rules
of evidence; or
 To strengthen the case of the party cross-examining;
 Discover who the witness is and his position in life; or
 Shake his credit by injuring his character
Re-Examination S. 214 (3) EA

This is the last stage of examination of a witness. It takes place where necessary after cross examination. It is
conducted by the party who called the witness. The aim of re-examination is to clear ambiguities,
inconsistencies, doubts or haziness that arises out of cross-examination
NB: Where there is no cross-examination, there cannot be re-examination. It is not an opportunity for
the re-examiner to elicit evidence, which he failed to elicit in his examination in chief. Thus, no new
matter is entertained in re-examination unless with leave of court and where a new matter in re-
examination is introduced, the adverse party is entitled to cross – examine on that fresh issue.
Denial of a right to re-examine a witness is a denial of a right to fair hearing - POLICE V. NWABUEZE.
Leading questions shall not be asked in re-examination. S. 221 (2) EA.
REFRESHING MEMORY
Actions or matters most times do not commence as soon as the incident leading to the action happened and a
witness may not remember clearly the event that happened. A witness may while under examination, refresh
his memory when testifying by referring to any writing made by him at the time of the transaction concerning
which he is questioned – S. 239(1) EA. Note however that the witness cannot be reading from it.
Thus, process of refreshing memory may take place at any stage of examination according to the opening of
section 239(1). However, it is only relevant during examination-in-chief and not relevant in cross-examination
so also not allowed in re-examination. IT MUST BE DONE WITH LEAVE OF COURT.
HOSTILE WITNESS
A hostile witness is one who in the opinion of the court, is biased against the party who calls him and is
unwilling to say the truth or who supports the other party. S. 230 EA. This is a witness who bears hostile
animus to the party calling him and is unwilling to testify or tell the truth. The general rule is that a person
calling a witness is not allowed to discredit him. S. 230 EA. However, when the witness testifies against the
party who called him and is unwilling to tell the truth or he is evasive in the answers he gives, then he may
be declared hostile witness and then discredited by being cross examined. GAJI V STATE.
JUDGE’S POWER TO PUT QUESTIONS TO A WITNESS

The general rule is that the judge is an unbiased umpire and therefore not allowed to cross examine or
examine any witness called by the parties. However:
 The Court has the power to put questions to any witness before it. The purpose is to clear ambiguities
or clarifying points raised in evidence –S. 246(1) EA.
 The Judge or magistrate is allowed under the law to put questions to witnesses in order to reach a
just delivery of the case.
The aim is to clear up ambiguities or a point left obscure in his testimony for the determination of the case
justly. The questions asked must be relevant under the Act and must be duly proved- S. 246 (2) EA.
A counsel cannot raise objection to the court‘s power to call/recall witnesses and to put questions to them-
ONUORAH V THE STATE. However, the Court is not to descend into the arena or ask damaging questions to
the witnesses or an accused person- OKORIE V STATE.
CONFESSIONAL STATEMENT
Confessional statement is an admission by the accused that he committed one or more elements of the
alleged offence. S. 28 EA. The confessional statement of the accused is only admissible if it is voluntary – S.
29 EA. The confessional statement is usually tendered by the investigating police officer (IPO).
The IPO is asked questions leading to tendering of the confessional statement. This is laying foundation for
tendering the confessional statement. Proper foundation must be laid for its admissibility through the
Investigating Police Officer (IPO) – normally by stating that the accused was cautioned before he wrote the
confessional statement, that the accused wrote the statement voluntarily and signed it; the IPO signed the
statement and the statement was countersigned by a superior police officer.
The statement must be tendered in whole and not after removing any part favourable to the accused person.
The confessional statement must be direct, unequivocal and pointing to the accused person as perpetrator of
the crime.
Where the confessional statement is voluntarily made and relevant, it is the best evidence.
Where it is however obtained by oppression, torture or inhumane and degrading treatment including
threatening the accused, it would be inadmissible unless a trial within trial is conducted. IKE V STATE.
Thus, 2 things are involved:
 The defendant denies making the statement, at this point, the judge will admit the statement in
evidence, but shall compare it with other evidence to determine whether it was genuinely made by the
defendant.
 The defendant admits to making the statement, but alleges that he did not make it voluntary (as a
result of torture and inhumane treatment), in this case, the judge will order a Trial within Trial. In a
TWT, witnesses will be called for the sole purpose of determining whether the statement was
voluntary. The standard of proof on the prosecution is still beyond reasonable doubt and after the
TWT is concluded, the main trial resumes.
EXPERT EVIDENCE
The general rule is that the opinion of a person is not admissible in Court except as provided in the Evidence
Act. S. 67 EA. Therefore, evidence of opinion may be admissible if it falls within the exceptions created under
Ss. 68 –75 EA. One of the exceptions is in respect of expert evidence- S. 68 EA. For his opinion to be
admissible, he must possess skill and qualification to be so referred. ESSIEN V R.
Note:
 For it to be admissible, proper foundation must be laid to show the expert‘s qualification, skill and
experience.
 Also the expert can put in his Expert Report without being called in Court.
HEARSAY EVIDENCE
Hearsay means a statement of facts oral or written made otherwise than by a witness in a proceeding or
which is tendered in evidence. S. 37 EA; IJIOFOR V THE STATE.
Generally, hearsay evidence is not admissible. S. 38 EA. However, there are exceptions to the rule against
hearsay evidence. They include:
1. Statements by persons who cannot be called as witnesses: S39 EA.
 person who is dead;
 who cannot be found;
 who has become incapable of giving evidence, or
 whose attendance cannot be procured without unreasonable delay or expense.
2. Dying declaration S. 40.
3. Statement made in the course of business S. 41.
4. Statement against interest of maker with special knowledge S. 42.
5. Statements of opinion as to public right or custom & matter of general interest S. 43.
6. Statement relating to existence of relationship S. 44.
7. Declarations by testator S. 45.
8. Evidence of a witness in former proceedings- S. 46 (Note the proviso).
9. Admission of written statements by investigation Police Officers in certain cases S. 49.
10. Statements made in Special circumstances:
 Entries in books of accounts S. 51;
 Entry in public records made in performance of duty S. 52;
 Statements in maps, charts and plans S. 53;
 Statements as to fact of public nature contained in certain Acts or Notifications S. 54;
 Certificates of specified Government Officers S. 55;
 Certificates of Central Bank Officers S. 56;
 Evidence of family or communal tradition in Land cases S. 66;
 Statements in public documents;
 Statements in res gestae.
PRESENTATION OF THE CASE FOR THE DEFENCE
OPTIONS AVAILABLE TO THE ACCUSED AT THE CLOSE OF THE CASE FOR THE PROSECUTION
The options open to accused in his defence are:
1. Make a no case submission.
2. Rest his case on that of the prosecution.
3. Go ahead to enter his defence by calling his witnesses.
These options are independent and the exercise of one is not dependent on having exercised the other.
No case submission
This can be made by the defence or the Court on its own volition at the close of the prosecution‘s case where
a prima facie case has not been established against the accused. IBEZIAKO V. COP.
It may be made in respect of one count of offence or the entire charge sheet. The court must make a ruling on
each count of offence separately.
Purpose of No Case Submission
 To save the accused from entering needless defence and prove his innocence where prosecution has
failed.
 To save the time of the court where prosecution has failed.
 To save cost of needless defence.
When will a no case submission be made?
1. Where no prima facie case has been made against the accused: A no case submission will only
succeed where the court is of the opinion that the prosecution has not established the ingredients of
the offence and/or linked the accused to the crime. At this point, the court is only called upon to see if
the prosecution has maintained a prima facie case against the accused person enough to make the
court call on the accused person to enter a defence; OR
2. Where prosecution‘s case has been so grossly discredited on cross-examination;
3. Where prosecution‘s evidence is so manifestly unreliable that no reasonable court or tribunal can
convict on it.
The effect depends on whether it is rightly upheld or wrongly overruled:
 Where it is rightly upheld: the accused will be discharged and need not enter his defence. The effect of
such a discharge is an acquittal. Thus, the accused person can successfully plead autre fois acquit.
 Where it is rightly overruled: Where no case is rightly overruled, the accused is called upon to enter
his defence.
 Where it is wrongly overruled: Where no case submission is wrongly overruled (supposed to uphold it),
the defence has the choice to either enter his defence OR he can withdraw from further proceedings by
resting his case on the prosecution. Whatever choice made at this stage has its own implications. If he
continues with the proceedings and he enters his defence and supplies the evidence incriminating
him, it has been held that a conviction founded on such evidence could not stand. To hold otherwise
will amount to requiring the accused to prove his innocence.
Ruling of court must be brief where submission is overruled. It must not be so lengthy so as to fetter the
discretion of the court. This is because he had not had the opportunity of hearing the defence. Thus, the
court must not go to the merits of the case. Court must confine its ruling to the submission of the no case.
Where no case submission is overruled the accused or his counsel is called upon to enter his defence. Where
the no case submission was upheld, it is a decision of the court and should be lengthy and comply with the
requirement of full judgment of courts. The ruling will contain the reasons for the decision. Such ruling is
tantamount to a judgment and is appealable.
Resting case on that of the prosecution

This implies that he is calling the Court to convict or acquit him based on the evidence led by the
Prosecution---SULEIMAN V STATE. Where accused does not call any witnesses or adduce any evidence, then,
he is said to have rested his case on the prosecution. Court can come to a valid decision solely on that basis.
Accused is assumed to have accepted the evidence as truly and exactly stated by the prosecution. AKPAN V
STATE.
The counsel to the accused person would inform the court and then proceed to address the court. This
address is wider and is expected to address all issues concerning the case as a whole. After such address by
the Defence Counsel, the Prosecution if represented by a Law officer is entitled to reply.
Where the case of the Prosecution calls for some explanation from the accused and the accused chooses to
rest his case on that of the Prosecution, the trial judge is entitled to draw necessary inference from the tale
told by the Prosecution.
When is it advisable for an accused to rest case on the prosecution‘s case? An accused person is not advised
to rest his case on that of the prosecution except where the prosecution‘s case is so bad that even if the court
will consider the totality of such evidence, the facts available before the court are not sufficient to convict the
accused person. ALI V STATE.
Difference between no case submission and resting case on prosecution‘s case:
 Where a no case submission is overruled, the accused is given leave to enter his defence. BUT where
the accused rests his case on that of the Prosecution; the accused has no further opportunity of
calling witnesses or to enter upon his defence. The only option available is to APPEAL against the
decision of the court in the event it is a CONVICTION. ONAGORUWA V. STATE.
 Resting case is used where defence alleges that there is INSUFFICIENT EVIDENCE to warrant a
conviction but no case submission is used where there is NO PRIMA FACIE EVIDENCE linking the
accused person to the crime.
Entering defence
This arises at the end of the case for the Prosecution i.e. after the re-examination of all the Prosecution
witnesses; the Prosecution may close its case in this manner thus: My Lord, the Prosecution wishes to close
his case OR My Lord; that is the case of the Prosecution.‖
The accused person may then commence with an opening address by giving a summation of the case for the
defence, his witnesses and evidence to be adduced OR proceed to call witnesses like the prosecution.
What options open to the accused person in his defence?
There are three (3) options open to the accused in his defence.
1. He may make a Statement from the dock, where he would not be sworn and would not be liable to
cross-examination: The accused will not be sworn on oath to testify, he is not liable to be cross-
examined and he is not seen or treated as a witness. The effect is that the Court will admit the
statement made, but little weight will be attached to the statement made as the defendant is not liable
to be cross examined.
2. Give evidence in the witness box after he has been sworn in and liable to be cross-examined.
3. He may elect not to say anything at all in line with Section 36(11) CFRN 1999. This is because he is a
competent witness but not a compellable witness to testify on his behalf. The accused is deemed to
have RESTED HIS CASE on the Prosecution‘s case and the court can give a valid conviction on that
basis.
NB: Take notice that where the accused is unrepresented by counsel, it is the duty of the court to
inform him of the options mentioned above. ADIO V STATE.
EX-IMPROVISO RULE
The general rule is that once prosecution closes its case, the prosecution cannot open it again to adduce
evidence, unless the defendant or accused person introduces a new matter that is not reasonable within the
contemplation of the prosecution. S. 241 ACJL, S. 361 ACJA.
Ex improviso rule is therefore a situation where the prosecution at the close of defence may with the leave of
court re-open his case and then adduce evidence to rebut the new matter which the prosecution could not
foresee. The prosecution can seek the leave of the court to call or recall witnesses in rebuttal of new matter
raised by the accused.
VISIT TO THE LOCUS IN QUO

It refers to inspection of moveable/immoveable evidence by court for proper determination of the case. The
essence is for the court to have a clearer view of evidence for the just determination of the case. Visit to locus
may be by application of either parties or by the court suo moto. If court is satisfied that there is need to
inspect immovable real evidence by the Court for the proper determination of the case, then the court will
adjourn and continue proceedings there or adjourn and proceed to view and return to court. S. 127 EA
When can a visit to the locus be conducted?
Visit to locus in quo can be made at any time but preferably during the course of evidence of prosecution.
Procedure for visit to locus in quo
 The Court may adjourn to the locus to inspect and continue trial there by taking witnesses in evidence
and later the Court will reconvene in the regular Court to continue the trial, without recalling the
witnesses. Therefore, all the principles governing principles of evidence will apply. The witnesses will
be put in the witness box and if the witness is to be cross-examined based on the real evidence, the
witness will be cross-examined just like a court setting. WHEN THEY RETURN BACK TO COURT,
proceedings will commence from where it stopped at the locus.
 The Court will adjourn to visit the locus, take notes of the things observed and reconvene in Court to
continue proceedings where it will take the testimony of witnesses in Court. This is mere inspection.
NB: the accused or defendant must be present at the locus in quo. In criminal proceedings, the
accused persons must be present at the locus criminis as the general rule is that an accused person
cannot be tried in absentia. Also, the presence of the accused is an opportunity to clarify
uncertainties and contradictions; it is not to present fresh evidence different from that already
adduced at court.
FINAL ADDRESS
Final address is the summing up of facts and the evidence adduced before the court applying the law to them
and each party asking the court to return verdict in his favour. It is not part of the evidence adduced by the
parties. It is just persuasive to lure the court to deliver judgment in its favour.
Effect of denial of a party’s right to address by a judge
Generally, the right to address is a constitutional right of the accused and the court cannot deny the parties.
The purpose is to assist the court in the just determination of the case, failure to address will not vitiate trial
as it is at the discretion of the parties. However, where the right to address is denied and it occasioned a
miscarriage of justice, the proceedings may be SET ASIDE.
The order of making final address is as follows:
 In criminal trials, it is the defence that addresses the court first at the close of the proceedings.
 Then the Prosecution may reply; and
 Accused has a right to further reply on points of law.
JUDGMENT AND SENTENCING

There are (5) contents of a valid judgment:
a) Judgment must be in writing;
b) Judgment must contain the points for determination;
c) Judgment must contain the decision of the court on the point(s) for determination.
d) Judgment must contain the reason(s) for the court decision.
e) Judgment must be dated, signed or sealed by the judge or magistrate (sealed in the north).
Judgment must be in writing
No Court is allowed by law in Nigeria to deliver an oral judgment. UNAKALAMBA V COP. Oral judgment
delivered in open court by the court, and later reduced into writing in the judge‘s chambers remains an oral
judgment. The rationale being that the court becomes functus officio after delivering the judgment and it
cannot purport to do anything to the judgment as it will amount to an irregularity.
Judgment read from the note made by the judge during the course of the trial is an oral judgment.
Propriety Of Writing Judgment Before Final Address
The Judge may write his judgment at the close of all evidence, subject to any amendments he may wish to
make during or after final addresses. However, judge must not deliver such judgment before final addresses.
R V COBOLAH. This is because a final address is not regarded as part of evidence before the Court. Also, it is
a Constitutional provision that judgment is to be delivered within 90 days after the Final address. S. 294(1)
CFRN.
ALLOCUTUS
It is made after conviction or a plea of guilty, but before sentencing.
After conviction or a plea of guilty, but before sentencing, the Judge/magistrate/registrar will ask the
accused or his Counsel to show reasons why sentence should not be passed on him according to Law. The
accused is to respond by pleading convincingly to the Court why his sentence should be reduced or that the
Court should temper justice with mercy (adducing good reasons). Under the CPL after a convicted person has
pleaded an allocutus, the Court proceeds to sentence. Under the CPCL after an allocutus, the Prosecutor may
produce evidence of any previous convictions of the convicted person. Thereafter, the court shall proceed to
sentence---S. 197 (2) CPCL. At the magistrate Court in the North, the Magistrate at this stage may refer the
convicted person to a magistrate‘s court of a higher grade or to the High Court for stiffer sentence.
POWER OF THE COURT TO CONVICT FOR AN OFFENCE NOT EXPRESSLY CHARGED

On the application of the accused person or his counsel, the court may take cognizance of other offences
pending against the convicted person before passing sentence.
The conditions to be satisfied are:
 The Defendant must have been found guilty of the present offence.
 The Defendant must have admitted guilt of those other offences.
 The Defendant has agreed that the other charges be taken into consideration in passing sentence on
him.
 The prosecutor of the other charge/AG (if the north) must also consent.
 The offence must have been charged before the court.
 The court where the accused person is standing trial presently must have jurisdiction to try the other
offences so charged for.
Power to convict for an offence not expressly charged
Generally, no person can be pronounced guilty for an offence with which he was not expressly charged. S.
36(6)(a) CFRN. The exceptions to this rule are:
1. Where an accused person charged with a grave offence is convicted for a lesser offence where the
evidence before the Court could not sustain the offence he is charged with and there is sufficient and
overwhelming evidence in support of the lesser charge. The particulars constituting the lesser offence
are carved out/subsumed in the particulars of the offence charged. NWACHUKWU v. STATE.
2. When an accused person is convicted for conspiracy to commit the offence although he was not found
guilty of the substantive offence. BALOGUN v AG OGUN STATE.
3. Every attempt to commit an offence is punishable by trial court even where the defendant is not
expressly charged for attempting to commit the said offence.
4. A person charged for any of the offences of stealing, obtaining property by false pretense, obtaining
money by fraud or receiving stolen property may be convicted for any of them in the alternative.
5. A person charged with rape or defilement of a girl under 13 years may be convicted for indecent
assault. S. 175 CPL.
6. A person charged with armed robbery may be convicted of robbery. NWACHUKWU VS STATE.
CONVICTION
A conviction is an act of a court of competent jurisdiction adjudging a person to be guilty of a punishable

offence whether the penalty is imprisonment, fine or binding even to be of good behaviour. Therefore, it does
not matter whether the accused was not given a custodian sentence (imprisonment).
The judgment of a court must convict the accused before he is sentenced. Failure to enter a conviction before
sentence may invalidate the judgment. ADAMU & ORS v. THE STATE.
Once it is clear from the evidence and findings of the trial court that the accused person committed the
offence charged, failure to record the conviction or sentence is a mere irregularity which may be remedied by
the appellate court. Where an accused person is charged and tried for more than one count of offences, or
several accused persons are charged for one or more counts of offences, the court must deliver a verdict in
respect OF EACH COUNT OR EACH ACCUSED PERSON as the case may be.
A trial court must pronounce its sentences SEPARATELY on ALL the counts of offence in a case. BANKOLE v.
STATE.
SENTENCING
Death Sentence
Capital offence attracts death penalty. The death penalty is the prescribed punishment for persons convicted
of capital offences and it is mandatory to impose same. OKORO v STATE. Offences such as murder/culpable
homicide punishable with death, treason and armed robbery are punishable with the death sentence.
Persons exempted from being sentenced to death
 Pregnant Woman: The relevant status of the woman is her status at the time of conviction and not
Commission of the offence. In Lagos, North and South, if she is found guilty of a capital offence, she
shall be sentenced to life imprisonment. But in Abuja, by virtue of Ss. 404 & 415(4) ACJA; She shall
be sentenced to death, however, execution to be stayed until baby is delivered and weaned.
 Young Person: This is a person who has attained the age of 14 years and below the age of 17 years.
They are not to be sentenced to death but detained at the Governor‘s pleasure. MUSA V. STATE.
Imprisonment
The convict is to be remanded in prison until the expiration of the term of imprisonment. Court may order
that the imprisonment be with or without hard labor. The trial court may still sentence a convicted person
who is already serving a term of imprisonment to another term of imprisonment. The court may order that
the sentence shall commence at the expiration of the previous term.
The High Courts have unlimited jurisdiction to punish. They are only limited by the term of imprisonment
prescribed by the law, which creates an offence.
Magistrates‘ courts are limited to the punishment they can impose by the magistrates courts Law of the
various states. A Magistrate‘s Court in the SOUTH cannot exceed the limit of 4 years of its jurisdiction to
impose punishment when it passes consecutive sentences. S. 380 CPL. As for LAGOS, it must not exceed 14
years. Ss. 314 ACJL. In the NORTH, a Magistrate‘s court can exceed its jurisdiction to impose punishment
but not by more than twice the limit when it passes consecutive sentences. Ss. 257; 24(2) CPCL.
A term of imprisonment comes into effect immediately it is pronounced or not later than 3 months thereafter.
In practice, life imprisonment means no more than 20 years jail term except the court orders otherwise. S. 70
PENAL CODE.
Sentence of fine
It is a pecuniary punishment. Entails the payment of money as punishment. May stand on its own or be in
addition to imprisonment. Default of payment of the fine, he will be liable for imprisonment for a certain term.
The court must have regard to the means of the convict. Convict may appeal on grounds of excessive fine
imposed on him. GOKE V COP.
Canning
There is no sentence of canning in Lagos state and under ACJA. Sentence of canning in certain cases may be
in addition to other punishment. Ss. 387 CPL; 308 CPCL.
Regards must be had to the prevalence of the offence. Antecedents of the convict must also be considered.
The number of the strokes must not exceed 12 and it must be specified in the sentence. S. 386(1)(2) CPL.
Certain persons cannot be caned; women, men U-45 and those facing death sentence.
Haddi-lashing
Applies only to Muslim faith practitioners in the north. Section 307(2) CPCL. Essence is to inflict disgrace on
the offender rather than pain. It is an additional penalty to one already imposed.
Procedure for execution of penalty for haddi-lashing
 To be carried out in an enclosed place accessible to public.
 The person to carry out the execution should not be muscular.
 Striking arm not to be raised above shoulder level.
 Physical injury must be avoided.
Note that the health of the convict and season of the year must be considered.
Probation
This is a pre-conviction order whereby a defendant is discharged or released from confinement on conditions
and under court supervision. Ss. 341 ACJL, 453-458 ACJA. Note that the person here is not a convict.
However, if the probationer violates a condition, the court may revoke the order and proceed to convict and
sentence him to imprisonment. Usually, the conditions are at the discretion of the court.
Parole
Parole is a conditional release from incarceration during which the prisoner promises to heed to certain
conditions and submits to the supervision of a parole officer or a supervisor. S. 468 ACJA. Any violation of
those conditions however, would result in return to prison. It can only be ordered on the basis of the report
by the Comptroller General of the prison to the court recommending the prisoner on the grounds of good
behavior. He must have served at least one-third of prison term or at least 15 years of lifetime
imprisonment—S. 468(1) (b) ACJA. The court may release the prisoner with or without conditions.
Suspended sentence
A suspended sentence involves the judge imposing a prison sentence but suspending it on certain conditions.
Ss. 460 (1) ACJA; 457(1) ACJL. It means the offender is not sent to prison if he does not break the conditions.
Unlike probation, the offender is an ex-convict.
Community service - Ss. 347-348 ACJL, 461 ACJA.
Deportation
Legal expulsion or removal from Nigeria of a person not being a citizen of Nigeria. It is one of the alternative to
imprisonment. Ss. 439 ACJA.
Forfeiture order
Payment of damage for injury or compensation
Confinement at a rehabilitation and correctional centre — Ss. 467 (1-3) ACJA; 348 ACJL, 68(1) (d) PC.
Restitution of stolen property - Ss. 297&341(3) ACJL, 270 CPL.
NOTE: Form of pronouncing the death sentence

―The sentence of the court upon you is that you be hanged by the neck until you be dead and may the
Lord have mercy on your soul‖ – Lagos, North and South.
―The sentence of the court upon you is that you be hanged by the neck until you be dead or by lethal
injection‖ - S. 402 (2) ACJA. Failure to comply with the format of pronouncing a death sentence IS NOT
FATAL TO THE TRIAL.
RESTORATIVE JUSTICE
The Traditional Approach to sentencing in criminal justice administration support the idea of retribution or
punishment of offender through imprisonment and ensuring that this is a price to pay for crime committed.
This is a form of deterrence to potential offenders. This approach for a while was quite effective by ensuring
public protection through the removal of criminals from civil society.
Challenges associated with the approach
 Unwitting creation of career criminals;
 The deterrent effect of this approach has become questionable;
 High cost incurred by the government in the maintenance of prisons;
 Overcrowding of prisons and inadequate facilities for the rehabilitation of criminals, etc.
The attempt to address these challenges of custodial system of court has given rise to this Restorative
Approach. Here, the offender is made to compensate the victims and make repairs for the damages caused
thereby giving the victim a greater sense of justice By this approach, there is an opportunity for the offenders
to apologize, appreciate the damage caused or repair it with their own labour (through community service).
The advantages are that:
 It seeks to remedy the adverse effects of crime;
 It enhances rehabilitation of the offender;
 It infuses a sense of responsibility on the offender.
Limit of discretion to impose a lesser punishment

The discretion of the court to impose a sentence which is less than or different from the prescribed penalty is
limited in these instances:
 Mandatory Sentences: The court cannot impose less than a penalty prescribed for an offence. All
capital offences are punishable with the death penalty. Death penalty is the mandatory penalty for
murder, culpable homicide punishable with death, treason, armed robbery. The death penalty is not
permissive but mandatory for capital offences. Therefore a court does not have the discretion to
impose any other penalty upon conviction for a capital offence. EGUNJOBI V FRN.
 Minimum Penalties: Where the law, which creates an offence, prescribes a minimum penalty for
offenders upon conviction, the Court can impose a higher penalty but cannot impose a penalty less
than the minimum. Also, where the minimum penalty is a term of imprisonment, the court cannot
impose a fine in lieu of imprisonment. AFOLABI v STATE.
 Maximum Penalties: Once a law prescribes a maximum penalty, the Court can impose lower
sentences but cannot impose a higher sentence.
 Penalties without Option of a Fine: Where the law which creates an offence prescribes a penalty
without option of a fine, upon conviction, the court does not have the discretion to impose a fine in
lieu of the penalty. However, where a law prescribes a penalty and is silent on the option of fine, the
court has the discretion to impose a fine in lieu of the penalty.
NOTE
Sentencing hearing: This has to do with the court, after conviction, taking all necessary aggravating
and mitigating evidence or information (ALLOCUTUS) that may guide it in deciding the nature and
extent of sentence to pass on the convict.
APPEALS
An appeal seeks to review the decision of the lower court by the higher court. It is a judicial examination by a
higher court of the decision of a lower court. OKPONIPERE V STATE.
Appeal is not a retrial as the witnesses are not called again to testify rather the records of proceedings will be
examined, except in exceptional circumstances where additional evidence will be adduced. An appeal is a
continuation of the original action and not an inception of a new action. It is pertinent to note that without an
original action, there can be no appeal. The appeal court focuses on the correctness of the decision. It seeks
to rectify an alleged erroneous decision on facts, law, mixed law and fact and to reverse the decision of the
lower
Appealable decisions
 Final decision.
 Interlocutory decision.
Appeal is deemed to have been brought as soon as Notice of appeal is filed at the registry of the lower court. It
is deemed to have been entered if the records have been transmitted to the superior court and entered on the
cause list and an Appeal Number assigned. BARIGA V. PDP.
Compilation of records of appeal
 The registrar of the court below shall within 60 days after the filing of the notice of appeal, compile
and transmit to the COA the record of appeal.
 The registrar shall within 14 days of filing of the notice of appeal, summon parties to the appeal before
him to settle the documents to be included in the record of appeal.
 Where the registrar has failed and/or neglected to compile and transmit the records of appeal to the
COA within the time stipulated by the rules, the appellant shall compile the records, including the
documents and exhibits, and transmit same to the COA within 30 days of the registrar‘s failure or
neglect to forward the records to the COA. The appellant shall serve on the respondent, the records
compiled, within 30 days of transmission to the COA i.e. the records compiled by the appellant shall
be served within 30 days of filing same.
 Where the registrar of the COA fails to compile and transmit the records as required and the appellant
equally fails to do same, the respondent may file a MON to dismiss the appeal.
Can a person who pleads guilty appeal against conviction and or sentence? Yes, he can appeal. When a
plea of guilty is made, there are certain things the judge and prosecution should do. STEPHENSON v
POLICE.
Abatement of appeal: Upon the death of the appellant or convict the appeal abates. AJILORE V. STATE.
Thus, it occurs outside the will of the parties. Note that the prosecution cannot die. If the appeal is against
the sentence of fine, it survives as it will be satisfied by the deceased estate. R V ROWE.
Appeal may be:

 as of right---S. 241(1) CFRN.
 Appeal with leave---S. 242(1) CFRN.
Who may appeal?
 The Prosecutor. Prosecutor will include agencies with prosecutorial powers.
 The accused/convict. SEE S. 243(a) CFRN.
Thus, the victim cannot appeal against the decision of the court. AKINBIYIV ADELABU. Also, an interested
person including civil societies cannot appeal against the decision of the Court. AGU V. AYELOGU.
Court of Appeal Practice Directions (CAFTPD)

CAFTPD does not apply generally rather it is limited to certain subject matters including terrorism
corruption, human trafficking, money laundering, rape, kidnapping and appeals by or against such national
human rights, intelligence agencies, law enforcement, prosecutorial or security agencies such as EFCC, ICPC,
NHRC, SSS.
Time to file briefs at Court of Appeal
 Appellant brief within 45 days. ORDER 19 RULE 2 CAR 2016. It is now subject to S. 8(3) CAFTPD
which provides for 14 days.
 Respondent brief within 30 days. ORDER 19 RULE 4 (1) CAR 2016 but see S. 8(5) CAFTPD which
provides for 10 days.
 Reply brief is within 14 days. ORDER 19 R 5(1) CAR 2016 but see S. 8(7) CAFTPD which provide for 5
days.
Effect of non compliance

Where appellant is in default, appeal is to be dismissed for want of diligent prosecution. EVEMILI V STATE.
Where respondent is in default, the court will proceed to hear the appeal. He will not be allowed to make an
oral argument. The court will proceed based on the brief of the appellant.
Failure to file reply brief, it will be deemed that the appellant has conceded to the new material facts raised by
the respondent‘s brief.
NB: Practice direction in Supreme Court (SPCD) is applicable to offences of Terrorism, rape,
kidnapping, corruption, money laundering, and human trafficking.
Time to file briefs at the Supreme Court
 Appellant – 10 weeks; Under SCPD- 10 days.
 Respondent – 8 weeks; Under the SCPD- 7 days.
 Reply – 4 weeks; Under the SCPD- 3 days.
See generally ORDER 6 RULE 5 SCR; S. 6 SCPD.
NB: The effect of non-compliance is similar to that of the COA
NOTICE OF APPEAL
Notice of Appeal shall be in Criminal Form 1 where an accused or convict is appealing. Where the prosecutor
appeals, it shall be in Criminal Form 5. Failure to comply to the form will be deemed to be an irregularity.
UDO v STATE. Where there is no notice of appeal, there is no appeal. Any purported appeal without notice of
appeal is a nullity. Where there are several appellants, each is to give separate notice of appeal.
Notice of appeal, application for leave to appeal or notice for extension of time, is to be signed by
Appellant or Legal representative---ORDER 17 RULE 4(1) CAR 2016; NIGERIAN ARMY V SAMUEL.
Signing by law firm is an irreversible error. SLB CONSORTIUM LTD V. NNPC. Except where the contention at
the court below is that the APPELLANT IS OF UNSOUND MIND or where the appellant is a body corporate,
then Manager, clerk, secretary and legal representative can sign.
GROUNDS OF APPEAL
This is the reason, the fulcrum for challenging the decision of the court. It is the reason why thevdecision of
the court is challenged. OKPONIPERE V STATE. The grounds must therefore relate to the ratio/decision.
Hence, ground of appeal must be derived from decision of court appealed against. Grounds of Appeal is no an
argument or a narrative, it must be short as much as possible and must accompany every notice of appeal.
Where an oral notice of appeal is given in the north, there will not be grounds immediately.
Where the appellant is in custody, he can give notice of appeal to officer in charge of prison. The date he gave
such notice is deemed to be the date of filing.
Classification of grounds of appeal

 Grounds of law.
 Grounds of facts.
 Grounds of mixed law and fact.
The way it is couched in Criminal matter is: ―THE DECISION OF THE TRIAL COURT IS
UNREASONABLE AND CANNOT BE SUPPORTED HAVING REGARD TO THE
EVIDENCE‖. S. 19(1) COURT OF APPEAL ACT.
Additional or amended ground of appeal:

 Appellant may file and argue additional ground of appeal.
 He may also apply to amend the ground already filed.
 To do either, he needs leave.
 Without leave, no argument on those grounds.
BRIEFS OF ARGUMENT
Brief of argument is a succinct statement of the parties before the appellate court as it relates to their case.
Hearing of appeal in court of appeal is by briefs of argument.
Types of brief
 Appellant brief.
 Respondent brief.
 Reply brief.
Contents of the brief of argument
 Heading of the Court of Appeal.
 Appeal number.
 Parties to the appeal.
 Title of the brief of argument.
 Table of content.
 Introduction.
 Statements of facts.
 Grounds of Appeal.
 Issues for determination.
 Arguments on each issue.
 Prayers/reliefs.
 Conclusions.
 List of authorities.
 Date and signature.
 Address for service.
NB: Notice of preliminary objection TO BE FILED BY RESPONDENT THREE (3) CLEAR DAYS BEFORE
THE DATE OF HEARING---ORDER 10 RULE 1 CAR 2016. Failure to give notice of preliminary
objection, court may refuse to hear objection or adjourn based on some terms.
Orders The Court May Make After Hearing An Appeal
The order to be made depends on what the appeal was on. If appeal was on sentence, then only sentence will
be decided upon. The possible orders are
 Affirm conviction and sentence.
 Affirm conviction but vary the sentence.
 Quash conviction.
 Order a re-trial

Criminal Litigation Note

Uploaded by

Copyright:

Available Formats

Criminal Litigation Note

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Criminal Litigation Note

Uploaded by

Copyright:

Available Formats

PREPARED BY MOBOLAJI DAVIDSON OJO, ESQ AND EMMANUEL OMOLE, ESQ

READ AND BE DELIVERED FROM YOUR VILLAGE PEOPLE, LOL.

SOURCES OF THE LAWS/RULES GUIDING CRIMINAL LITIGATION IN

TYPES, SITTINGS AND SETTINGS OF COURT

SETTINGS OF CRIMINAL COURT

JURISDICTION AND VENUE

TERRITORIAL JURISDICTION OF THE STATE HIGH COURT

TERRITORIAL JURISDICTION OF THE FEDERAL HIGH COURT

COURTS OF CRIMINAL JURISDICTION

Features of Juvenile courts are:

ARREST WITH WARRANT

ISSUANCE OF WARRANT OF ARREST

To whom is the warrant directed to:

DAY OF ISSUING A WARRANT OF ARREST

CONTENTS OF A WARRANT OF ARREST

LIFE SPAN OF A WARRANT OF ARREST

EXECUTION OF WARRANT OF ARREST

WHERE CAN A WARRANT OF ARREST BE EXECUTED?

PROCEDURE AFTER ARREST

EXECUTION OUTSIDE JURISDICTION

ARREST WITHOUT WARRANT

THE POLICE OFFICERS

JUDICIAL OFFICERS (Judge, magistrate, Justice of the Peace)

EFFECT OF IRREGULARITY IN PROCEDURE FOR ARREST

Who can issue a search warrant?

When can a search warrant be issued or executed?

Admissibility of illegally obtained materials

Execution of search warrant outside Jurisdiction

Issuance and service of summons

Life Span of Summons

Intra-state execution of summons/service outside jurisdiction

Effect of failure to obey summons

PRE-TRIAL INVESTIGATION AND POLICE INTERVIEW

Factors hindering effective police investigation in Nigeria:

ALIBI, STATEMENTS, CONFESSIONS AND IDENTIFICATION PARADE

Grounds for objection to the admission of a confessional statement

Procedure For Conducting Identification Parade

CONSTITUTIONAL RIGHTS OF A SUSPECT AT THE POLICE STATION

INSTITUTING CRIMINAL PROCEEDINGS

ATTORNEY-GENERALS OF THE FEDERATION AND OF EACH STATE

NIGERIA POLICE FORCE

PERSONS UNDER FIAT

COMMENCEMENT OF CRIMINAL PROCEEDINGS IN THE VARIOUS

2. By Laying a Complaint (written or on oath)

3. Upon a charge (South)

STATE HIGH COURTS

FEDERAL HIGH COURT

LIMITATION TIME TO COMMENCE CRIMINAL PROCEEDINGS

Rule against Ambiguity

Rule against duplicity

Rule against misjoinder of offences

Rule against misjoinder of offenders

MAG MAG MAG MAG HC HC HC HC FHC

DIREC- YES NO NO YES NO NO NO NO NO

Terms of Police bail (conditions to fulfill). S. 17(2) ACJL.

BAIL PENDING TRIAL

BAIL PENDING APPEAL

METHODS OF APPLYING FOR BAIL

Factors That Govern Grant Of Bail