C O Agbata, Criminal Litigation Note

Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.
com 07035406532
DISCLAIMER:
This note is a compilation by Chris Ozo Agbata in NLS Yola Campus 2021/2022, using
NLS handbook, class slides and notes. It does not represent NLS official opinion; it is not
for sale and it is for exam preps only.
Any observations, reservations and comments should be directed to Chris Ozo Agbata
using the contact info provided at the header. This is only the first draft, so, such will be
appreciated.
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Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532
CRIMINAL LITIGATION
CURRICULUM, LESSONS PLAN AND CASE STUDIES
1. INTRODUCTION TO CRIMINAL LITIGATION

2. ARREST, SEARCHES AND CONSTITUTIONAL RIGHTS
3. PRE-TRIAL INVESTIGATION; POLICE INTERVIEWS:
4. JURISDICTION AND VENUE OF COURTS OF CRIMINAL JURISDICTION:
5. INSTITUTION OF CRIMINAL PROCEEDINGS:
6. CHARGES
7. BAIL PENDING TRIAL
8. CONSTITUTIONAL SAFEGUARDS TO ENSURE FAIR TRIAL OF ACCUSED
PERSON
9. TRIAL 1: ATTENDANCE OF PARTIES AND ARRAIGNMENT
10. Trial 2: (TRIAL PREPARATION)
11. Trial 3 (EXAMINATION OF WITNESSES)
12. TRIAL 4 (PRESENTATION OF THE CASE FOR THE DEFENCE
13. JUDGMENT AND SENTENCING
14. APPEALS
LESSONS PLAN
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WEEK 3- INTRODUCTION TO CRIMINAL LITIGATION
OUTCOMES
At the end of this lesson students would be able to:
1. Discuss the scope of the criminal litigation course;

2. List and compare the laws/rules applicable in various courts & in various parts of
Nigeria;
3. Explain and identify the sources of the laws/rules guiding criminal litigation in Nigeria.
4. Explain the types, sittings and settings of courts.
CONTENTS
1. Introduction to Criminal Litigation.

2. Overview of Criminal Litigation
3. Sources of the law/rules guiding criminal proceedings
4. Laws/rules applicable in various courts and in various parts of Nigeria-CPL, CPCL,
ACJL, 2011, ACJA, 2015. Note s.493 ACJA, 2015.
5. Types, sittings and settings of criminal courts
ACTIVITY BEFORE CLASS
• Students are to research on the laws and rules applicable in all criminal courts in Nigeria.
• This assignment should be given to the students in Week 2 during Induction.
ACTIVITIES IN THE CLASS
1. Students would be required to read the topic in advance generally;

2. In the class Tutor gives an overview of the course and scope of criminal procedure and
laws/rules generally in an interactive session using questions and answers – 40 minutes;
3. Students are grouped to discuss and list laws/rules (and their sources) applicable to
various criminal courts.
4. Students are grouped to discuss the sittings and settings of courts – 20 minutes
15 MINUTES BREAK
1. The group discussion is followed with sample presentations and plenary discussions with
guidance of the tutor- 1hour 40 minutes
2. Assessment and feedback – 20 minutes
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MEANING OF CRIMINAL LITIGATION
The word criminal derives from the word “crime” and it is synonymous to “offence”. It simply
refers to any act or omission which the law of the land forbids and against which the law
prescribes sanctions or punishment. See S2 CC, S28 PC, S371 ACJL Lagos, S1 ACJL Kano,
and S494 ACJA for the definition of an offence.
ACJA “offence” means an offence against an Act of the National Assembly;
“felony” means an offence on conviction for which a person can, without proof of his having
been previously convicted of an offence, be sentenced to death or to imprisonment for three
years or more, or which is declared by law to be a felony;
“Indictable offence” means an offence which on conviction may be punished by:
(a) a term of imprisonment exceeding two years; or
(b) of a fine exceeding N40,000.00 not being an offence declared by the law creating it to be
punishable on summary conviction;
For an act or omission to constitute a crime, such act or omission must be specifically regarded
as a crime in a written law. See Section 36(12) CFRN 1999, Aoko v Fagbemi.
On the other hand, “Litigation” generally refers to legal proceedings in a court; a judicial contest
to determine and enforce legal rights or to ascribe legal obligations.
Thus, criminal litigation is a legal proceeding in court that deals with criminal matters. It
involves processes used by courts in entertaining criminal proceedings or cases before them. The
processes include complaints, summons, arrest, bail, conclusion of investigations, charge,
arraignment, trial, defence, judgment, sentence and appeals which are all considered as part of
the scope of criminal litigation.
COMPARISON BETWEEN CIVIL AND CRIMINAL PROCEEDINGS
DIFFERENCE
1. Commencement: criminal proceedings are commenced by the state usually through the
Attorney General (Section 174 & 211 CFRN 1999), police (Section 66 Police Act), or
any other person authorised person or authority, while civil proceedings is commenced
by an individual or a corporation in his/its own name for enforcement of his/its own
rights.
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Also, in civil, action may be commenced by originating process or as the claimant wishes
depending on the matter but in criminal it is either by charge or information as it is
prescribed by law.
2. Parties: in criminal proceedings, the state is referred to as the Prosecution and the
opposing party as the Accused or Defendant, while in civil proceedings, the person
commencing the action is referred to as the Plaintiff/Claimant/Petitioner and the opposing
party is the Defendant/Respondent.
3. Outcome of Proceedings: at the end of a criminal case, the court will discharge and/or
acquit the accused person or convict him/her and punished, while at the end of a civil
case, the court will either find for the Plaintiff or dismiss his/her claim.
4. Burden and Standard of Proof: in criminal cases, the burden of proof is on the
prosecution and the standard of proof is beyond reasonable doubt (Section 138 Evidence
Act), while in civil cases, the burden of proof is on he who asserts (Section 135
Evidence Act) and the standard of proof is on the balance of probability or on
preponderance of evidence. When criminal offence is mixed in civil action, it has to be
proved beyond reasonable doubt Ajasin v Omoboriowo.
5. Constitutional and Statutory Protections: in criminal trials, the accused person enjoys
a variety of legal protections such as mandatory legal representation in capital offences,
right to speedy trial, etc. while in civil trials, once the two parties are of age, each fights
the case however he/she wants subject to necessary directions from the court.
6. Giving of Evidence: in criminal trials, an accused person may choose not to give
evidence or say anything at his trial and his silence will not mean he is guilty (Section 36
(11) CFRN 1999; Section 181 Evidence Act), while in civil proceedings, where the
defendant is in default of appearance or pleadings, judgment (default judgment) may be
given against him except where the claim is for declaration.
SIMILARITIES
1. Objective of serving Justice: The objective of both is to serve justice.
2. Court Room: The both trials are herd and determined in the same court room.
3. Presiding Judges: the judge who sits to hear criminal matters is the same judge who sits to
adjudicate over civil matters brought before the same court.1
4. Double Jeopardy/Res Judicata: the rule against double jeopardy provided for in Section
36(9) CFRN 1999 in relation to criminal trial has an equivalent in civil proceedings known as
res judicata.
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SOURCES
• PRINCIPAL ENACTMENTS
These are enactments which are so central to criminal proceedings that you can virtually not
commence criminal proceedings without reference to them.
1. Criminal Procedure Laws: this was initially enacted as the Criminal Procedure Act in
1945 and had general application throughout Nigeria until 1963 when the CPC was enacted to
govern criminal proceedings in Northern Region. The application of CPA was then limited to
Southern Region and it has been re-designated as the Criminal Procedure Laws of the various
states. The CPA was used in criminal proceedings before the FHC and NIC until the coming into
force of the ACJA in 2015. The CPA is also not applicable in Lagos because the ACJL of Lagos
2011 is the law now applicable. Other southern states that have equally adopted the ACJA and
now using ACJL instead of the CPL are Anambra 2010, Ekiti 2014, Oyo 2015, Ondo 2016,
Rivers 2016, Enugu 2017, Akwa Ibom 2017, Cross River 2017, Delta 2017 and Ogun 2018.
2. Criminal Procedure Code Laws: this was initially enacted by the Northern Region
Government in 1963 as the Criminal Procedure Code to govern criminal proceedings in the
Northern Region. The current northern states applying the CPC are Adamawa, Bauchi, Benue,
Borno, Gombe, Jigawa, Kaduna, Kano, Katsina, Kebbi, Kogi, Nasarawa, Niger, Plateau, Sokoto,
Taraba, Yobe and Zamfara. It has been re-designated as the Criminal Procedure Code Laws of
the various states.
3. Administration of Criminal Justice Act 2015: this was enacted in 2015 and currently
applies to criminal proceedings in the FHC, NIC and the HC of the FCT. Other states must first
adopt it before it will have nation-wide applicability. The Criminal Procedure Code Act was
the law applicable in the HC of the FCT until the enactment of the ACJA in 2015. The ACJA by
S493 has also repealed the CPA and CPC. By virtue of Section 2(1), the Act applies to all causes
and matters arising from offences created by an Act of the National Assembly.
4. Administration of Criminal Justice Law: governs proceedings in High Court and

Magistrates’ Courts in Lagos State. It was first enacted in 2007 but later repealed and re-enacted
in 2011 as the Administration of Criminal Justice (Repeal and Re-enactment) Law 2011,
there is now the Administration of Criminal Justice Law of Lagos State, 2015. The CPA is no
longer applicable to Lagos State.
5. Harmonised Sharia Criminal Procedure Code: operative in over 11 Northern states

(Zamfara, Sokoto, Jigawa, Gombe, Bauchi, Kaduna, Kebbi, Borno, Kano, Niger, and Zamfara)
and regulates sharia criminal proceedings in sharia courts (Sharia Court, Higher Sharia Court,
Upper Sharia Court, and Sharia Court of Appeal) within the applicable states.
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• SECONDARY ENACTMENTS
1. Constitution of the Federal Republic of Nigeria 1999: Chapter IV deals with the
fundamental rights of an accused person such as right to personal liberty under Section 35 and
right to fair hearing under Section 36. Chapter VII deals with superior courts of record setting
out their constitution, jurisdiction, composition, practice and direction, etc. as well as other lower
courts that may be created by the laws of the states. All criminal proceedings must be done in a
manner that do not conflict with constitutional provisions. See Section 1.
2. Statutes Creating Courts: The Federal High Court Act, Court of Appeal Act, Supreme
Court Act; and the High Court Laws make provision for the establishment of criminal courts
and their powers.
3. Rules of Courts: The Federal High Court Rules, State High Court Rules, Court of
Appeal Rules, and the Supreme Court Rules makes provision for the practice and procedure of
the various courts.
4. Other Secondary Enactments: Penal Code, Criminal Code, Evidence Act 2011; Police Act;
Armed Forces Act; Coroners’ Laws of the States; Children and Young Persons Law (has been
superseded by the Child Rights Act and the Child Rights Laws); Magistrate Court Laws; Area
Court Edicts; Economic and Financial Crime Commission Act; Independent Corrupt Practices
Commission Act; Procurement Act; etc.
5. Judicial interpretation of enactments
6. CPA: Section 363 provides for the application of English Rules of Practice and Procedure in
criminal trials where local laws do not make provisions. See Board of Customs & Excise v
Hassan. In Simidele v COP, there was no provision under the CPA for applying for bail at the
High Court after it has been refused in the Magistrate Court. The practice and procedure in
England where such application is made by summons was adopted. Some of the areas where
there is a lacuna in our local laws are mode of application for bail at the High Court after it was
refused at the Magistrate Court; change of plea; application for leave to file information; and
application for consent of a High Court judge in respect of an indictable offence.
CPC: Section 35 High Court Law of Northern Nigeria expressly prohibited the application of
English High Court Rules of practice and procedure to proceedings before the High Court.
Where there is lacuna in the CPC, the High Courts in the north would look at any other law made
for that purpose or pass another law to take care of it. Where no such law is passed to take care
of the lacuna, the courts are enjoined to do what, in their view, amounts to substantial justice.
Thus, in Achadu v State, when the question arose as to the procedure to apply when applying to
the HC for bail after its refusal by the Magistrate, it was held that the application may be made
by either motions or summons.
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SECTION 363 OF CPL provides for its application when lacuna exists in the CPL. See
BOARD OF CUSTOMS & EXCISE V. HASSAN, SIMIDELE V. C.O.P, IKOMI V.
POLICE.
SECTION 35 OF THE HIGH COURT LAW OF NORTHERN NIGERIA expressly

prohibited the application of the English rules and in case of lacuna; other laws should be looked
at.
SECTION 262 OF ACJL (Lagos) provides that where a matter arises in respect of which no
adequate provisions are made in this Law, a Court shall adopt such procedure as 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 CRIMINAL COURTS
I. TYPES OF COURTS OF CRIMINAL JURISDICTION
A. COURTS OF GENERAL CRIMINAL JURISDICTION: these are courts that have

jurisdiction over different classes of offenders and in respect of different types of offences.
Courts of General Criminal Jurisdiction are further subdivided into two:
1. COURTS OF ORIGINAL CRIMINAL JURISDICTION – These are courts you can

commence criminal proceedings at first instance, such as:
i. Customary Court,
ii. Area Court,
iii. Sharia Court,
iv. Magistrate Court, and
v. High Courts.
2. COURTS OF APPELLATE CRIMINAL JURISDICTION: these are courts that only

entertain criminal matters on appeal such as:
i. Court of Appeal, and

ii. Supreme Court.
B. COURTS OF SPECIAL CRIMINAL JURISDICTION: These courts are set up to try

particular types of offences or particular classes of offenders. These courts include:
i. Federal High Court,
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ii. National Industrial Court,

iii. Juvenile Court,
iv. Court Martial, and
v. International Criminal Court.
II. SETTING OF A CRIMINAL COURT
1. BENCH: this is the elevated podium in front of the court room where the presiding Judge(s)
or Magistrate sits to dispense justice.
2. BAR: part of the courtroom where lawyers who are in court normally sit. In a superior court, a
lawyer can only sit at the bar if he is robbed and must either have a case to handle or appear to
have one. The front row of the bar is normally left for SANs and AGs where there is no inner
bar. The bar is usually located between the Registrar’s desk and the gallery. The bar may also
mean all the lawyers entitled to practice in Nigeria.
3. REGISTRAR’S DESK: located directly beneath the bench and before it. The Registrar sits
along with the Court Clerk or other Clerical Assistants. The Registrar normally backs the Judge
and only stands up to face the Judge when his attention is required by the Judge.
4. GALLERY: part of the courtroom where litigants, spectators and all other persons who are
visitors to the court usually sit. Lawyers who have no matter in court or who are unrobed sit at
the gallery. It is located directly behind the bar.
5. DOCK: enclosed part of the courtroom where the accused person is placed during his trial. It
is exclusively reserved for the accused person. There is no rule as to which side of the Judge the
dock is located. Where the accused person testifies from the dock, he will not be cross-examined
but when he testifies from the witness box, he shall be cross-examined. In a joint-trial, all
accused persons enter the dock except where the number outstretches the space in which case
they may spill over and crowd around the dock.
6. WITNESS BOX: part of the courtroom where a witness is placed to testify but usually
smaller than a dock. It is usually located between the bar and the bench so that the lawyer and the
Judge can look at the witness when he is testifying. There is no rule as to which side of the Judge
is located. Only one witness can be in a witness box at a time.
III. SITTINGS OF THE COURT
The court is open for business throughout the year. The court sits at 9:00am – 4:00pm from
Monday – Friday. Saturday, Sunday and public holidays, days within the week of Easter
vacation, and days within annual vacations are non-juridical days. No superior court of record
sits on non-juridical days.
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Section 40 (1) Magistrate Court Law (Lagos State) 2009 provides: "The Court shall be opened
throughout the year except on Saturdays, Sundays and public holidays…". Section 40(2)
provides that notwithstanding Section 40(1) at least one Court in every magisterial district shall
be open and available for business on any given Saturday for the hearing of matters relating to
remand, bail and other non- custodial disposition. Generally, in practice however, Court usually
sits from Monday to Friday.
Where proceedings are held on Sunday and public holiday - which are dies non juridicus - such
proceedings are invalid, null and void.
However, in Ososami v. The COP 14 WA.C.A. 24, the Magistrate pointed it out to the parties
142 that the day to which the case was adjourned was a public holiday. The appellant urged the
Magistrate to take the evidence of his witness because it might be difficult to procure him
another time. The Magistrate convicted the appellant. He appealed on the basis that the
Magistrate sat on a holiday. It was held that although there was irregularity, since it was done in
the interest of the defence and at its request, no miscarriage of justice could be said to have been
occasioned, the irregularity notwithstanding. Thus, the court may subject to the agreement of the
parties, sit on non-juridical day. Also, in Olu Falae v Obasanjo, it was held that the court on sit
on non-juridical days to hear an election matter.
Also, during annual vacations, there is usually a vacation judge in the High Court who hears
emergency cases and other matters that require urgency. In the Magistrates’ Courts, at least one
Magistrate shall sit in every Magisterial District for hearing cases of bail, remand and other non-
custodial disposition. See Section 40(2) Magistrates’ Court Law of Lagos 2009.
MODE OF DRESSING AND DECORUM IN THE VARIOUS COURTS
I. CUSTOMARY AND AREA COURTS
• Dressing: Lawyers do not go to these courts robed (wig and gown) but they should be
dressed in black suits and black shoes with tie. The judge may wear traditional apparel.
Some of the judges are not legally trained lawyers.
• Mode of Address: “Your Honour”.
II. MAGISTRATES’ COURTS
• Dressing: officers presiding over these courts are qualified legal practitioners. They do
not sit robed but are usually smartly dressed in sombre suits. The lawyers appearing
before them do not appear in robes. For the male, a black suit and trousers with a shirt
and tie to match a black pair of shoes. For the female, a black suit and skirt with black
shoes.
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• Mode of Address: “Your Worship”. However, the mode of addressing a Magistrate in

Lagos is now “Your Honour” by virtue of S349 ACJL 2011.
• Quorum: At least one Magistrate shall sit in every Magisterial District for hearing cases
of bail, review and other non-custodial disposition. See S40(2) MCL Lagos, 2009.
III. HIGH COURT (STATE & FEDERAL)
• Dressing: The High Court Judge is robed. The standard apparel for a male Judge is a
black suit, a white shirt (usually collarless or winged) a bib, a plastic collar (especially
where it is a collarless shirt), stud and black shoes, wig and a gown. A female Judge
would adorn a black skirt-suit, a white collaret, white blouse, a black pair of shoes and a
wig and gown. The Judge can wear a red gown when trying a capital offence and adorn a
black cap when about to pronounce a death sentence.
For a male lawyer, he must wear a black suit, a white collarless or winged shirt, a black
pair of shoes, a white plastic collar, a bib, stud and his wig and gown. For the lady, a
black skirt suit, a white blouse, a white collaret, black pair of shoes and wig and a gown.
Her hairstyle shall not be in a wig form as she is not expected to wear a wig on a wig.
• Privileges and Seniority of Senior Members of the Bar: The wig of the Judge is
normally different from that of the counsel and each Judge has a police orderly. The
material for the lawyers’ gown is cotton or mixed fibre gown, while for the senior
members of the bar (Attorney General, Members of Body of Benchers, and Senior
Advocates of Nigeria), they wear silk gowns. The senior members of the bar sit in the
front row of the bar and have the privilege of mentioning their cases before others. Their
seniority is determined in the order of Attorney General (Federation and State), then
members of the Body of Benchers, and followed by Senior Advocates of Nigeria.
• Mode of Address: “My Lord”.
• Quorum: The High Court is constituted by one Judge sitting who is at least 10 years post
call. However, in the North, whenever the High Court of a state is hearing an appeal from
the Magistrate or Upper Area Court, two judges form the quorum to sit.
IV. COURT OF APPEAL
• Dressing: The Justices and lawyers appearing before them must sit robed.
• Mode of Address: “My Lords”.
• Quorum: this court is constituted by at least 3 Justices or 5 Justices (in constitutional
interpretation) who are at least 12 years post call. Each justice has a police orderly.
V. SUPREME COURT
• Dressing: The Justices and lawyers appearing before them must sit robed.
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• Mode of Address: “My Lords”.

• Quorum: this court is constituted by at least 5 Justices or 7 Justices (in constitutional
interpretation or exercise of its original jurisdiction) who are at least 15 years post call.
Each Justice has a police orderly.
ETHICAL DUTIES OF COUNSEL AND COURT IN CRIMINAL TRIALS
I. Prosecuting Counsel
i. Being present in court at all times

ii. Avoiding forum shopping
iii. Acting fairly, honestly and candidly
iv. Calling material witnesses
v. Observing the interest of justice
vi. Conducting case with due diligence
vii. Making available to the accused person proof of evidence
viii. Avoiding frivolous institution of criminal proceedings
II. Defence Counsel
i. Being present in court

ii. Undertaking defence of an accused person
iii. Keeping client’s confidences. See R v Eguabor
iv. Not withdrawing from the brief. See Abele v Tiv NA
v. Not seeking unnecessary adjournments. See Worlu v Umelo
vi. Employing the right mode of address for the judge or other presiding officer of a court.
See Global Transport v Free Ent.
vii. Not casting aspersion on the trial judge.
III. Trial Judge
i. Granting to the parties right of audience before the court

ii. Being neutral
iii. Not descending to the arena of conflict
iv. Maintaining high standard of conduct
v. Active participator in the proceedings but not necessarily interfere
vi. Ensuring that litigants don’t waste judicial time.
IV. Court Registrar
i. Accept all processes for filing

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ii. Make records of proceedings available to the parties upon demand

iii. Ensures that hearing notices and other court processes are served
iv. Interpret or arrange for interpreter to interpret court proceedings to an accused if
necessary
v. Ensures that the court file is brought to the attention of the judge before the date for
hearing especially where a new process is filed by a party
vi. In a capital offence where the accused is sentenced to death, the Registrar shall, as soon
as possible forward copies of the certificate issued by the Judge to the Prison Officer as
well as the Sheriff. Generally, he liaises between the court and the Attorney-General in
issues of plea of clemency in capital offences.
SCENARIO WEEK 3
John bull, went to Yola Market and sneaked into the shop of Alh. Bala. He stole 2 wrist watches,
3 necklaces, and 1 diamond ring all worth about one million naira. On his way out of the shop he
was arrested by one of the market security men and upon search the items were found in his jean
trouser. He was subsequently taken to and handed over to the Yola police station. He was
interrogated and granted bail by the police while investigation was ongoing.
Two days after, he was charged to Chief Magistrate court Jimeta. The First information Report
prepared by the police was read to him by the court but he denied it. The police called 3
witnesses to testify after which the counsel to john bull cross examined. At the end of the
prosecution case, the court ruled that Johnbull had a case to answer. The magistrate drafted a
formal charge which was read to him and he pleaded not guilty. John Bull was asked to enter his
defence and he called one witness who was cross examined by the police prosecution. At the end
of the case, the counsel to John bull addressed the court, the court gave judgment and john bull
was convicted of the offence of theft. Before the sentencing, he was asked if he has anything to
say in mitigation of the punishment. His counsel made allocutus for him pleading for leniency.
His plea was considered and he was sentenced to 5 months imprisonment or option of fine to pay
N50,000. John bull was dissatisfied and he appealed.
Identify the issues arising from the scenario
On alloccutus, the SC in Francis v. Federal Republic of Nigeria [2021] 5 NWLR (Pt. 1769)
398 at 412, per Eko, JSC: “Allocutus”, as defined in Earl Jowitt: The Dictionary of English
Law, is what the convict has to say why the court should not proceed to sentence him. That is,
what the convict shows “Why the sentence should not be passed.” The convict, not the defence
Counsel, pleads his allocutus. In other words, it is for the convict himself to show cause why the
prescribed sentence for the offence he was convicted of be not passed or imposed on him.
In summary, it the convict him/herself that delivers the allocutus and not his/her counsel.
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WEEK 4- SUMMONS, ARREST, SEARCHES AND CONSTITUTIONAL RIGHTS
OUTCOMES:
1. Discuss and explain the power of arrest and searches in criminal proceedings;
2. Explain how criminal summons, search warrants and warrants of arrest are obtained and
executed and the admissibility of materials recovered during searches;
3. List and explain the Constitutional/procedural rights and safeguards of an accused person
in these procedures;
4. Complete/draft forms of summons and warrants.
CONTENTS
1. Authority to issue a warrant of arrest

2. Authority to issue a search warrant
3. Execution of warrant of arrest
4. Execution of search warrant
5. Execution of warrant of arrest outside jurisdiction
6. Admissibility of materials obtained in the course of an unlawful search,
7. Procedure for challenging arrest and searches and constitutional safeguards relating to
this procedure.
ACTIVITIES
1. Students would be required to read the week 4 subjects in advance. In addition to text
books and other materials, students would need to read the constitutional provisions and
case law relating to protection of rights.
2. In the class, tutor gives an overview – 30 minutes
3. Tutor presents a scenario (*********** SCENARIO) on searches, arrest and bail – 10
minutes
4. Plenary discussions on the scenario and outcomes 1 and 2 follow. Students are to lead the
discussion with the assistance of the Tutor – 1 hour 20 minutes
15 MINUTES BREAK
5. Students are grouped to discuss and list constitutional and procedural safeguards of an
accused person in the execution of summons, warrants and arrests – 20 minutes
6. Sample presentations (with discussions) are made on constitutional safeguards – 30
minutes.
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7. Students are grouped to draft/and complete forms of summons and warrants – 20

minutes
8. Sample presentations (with discussions) are made with power point– 40 minutes
9. Assessment and evaluation – 10 minutes
INTRODUCTION:
There are three different ways of securing the appearance of an accused before the Court which
will try him S 113 ACJA, S 79 ACJL Lagos, S 130 ACJL Kano. These are
i. By summons
ii. By Arrest on Warrant and
iii. By Arrest without Warrant
SUMMONS
A summons is a document issued by a court of competent jurisdiction directing the person

named therein to appear in court at a stipulated date and time to answer to a charge or allegation
or complaint against him. This is usually preceded by a complaint laid before a Magistrate or a
judge.
What is a complaint?
According to S494(1) ACJA “complaint” means the allegation that any named person has
committed an offence made before a court or police officer for the purpose of moving him to
issue process under this Act.
According to ACJA S89 on Form of complaint.
(1) It is not necessary that a complaint shall be in writing, unless it is required to be so by the law
on which it is founded, or by some other law, and where a complaint is not made in writing, the
court or registrar shall reduce it into writing.
(2) Subject to the provisions of section 54 of this Act, a complaint may, unless some law
otherwise requires, be made without oath.
(3) A complaint may be made by the complainant in person, or by a legal practitioner

representing him, or by any person authorized in writing in that behalf.
Who may issue Summons?
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S113 ACJA: A court may issue a summons or warrant as provided in this Act to compel the
appearance before it of a suspect accused of having committed an offence in any place, whether
within or outside Nigeria, triable in a State or in the Federal Capital Territory, Abuja. S130
ACJL Kano has similar provision, but S79 ACJL Lagos provides that a magistrate may issue
but apparently, they are the same.
Issue and Service
S116 ACJA and S132 ACJL Kano: states that a summons may be issued or served on any day,
including a Sunday or public holiday.
But S81 ACJL Lagos provides that
(a) A summons may be issued or served on any day from Monday to Saturday between the hours
of 8 a.m. and 6 p.m.
(b) A summons served on a Sunday or public holiday shall not be invalid but shall take effect
from the next working day.
Content of Summons
S117 ACJA, S82 ACJL Lagos, S133 ACJL Kano: …the summons shall be directed to the
suspect, stating concisely the substance of the complaint and requiring him to appear at a certain
time and place not less than 48 hours after the service of the summons before the court to answer
to the complaint and to be further dealt with according to law.
According to Agaba: CNDDS
1. Concise statement of the offence

2. Name of the offender
3. Direction to the offender to appear in court within 48 hours of service
4. Date of issue
5. Signature of the issuing authority. In Goodman v Evans Ltd, it was held that the use of a
rubber-stamped signature is a sufficient compliance with requirement for signature.
Form of Summons
S121 ACJA, S85 ACJL Lagos, S135 ACJL Kano: A summons issued by a court under this Act
shall be in writing, made in duplicate, signed by the presiding officer of the court or by such
other officer as the Chief Judge may specify, from time to time.
i. Be in writing
ii. Made in duplicate
16
iii. Signed by presiding officer of the court or another officer appointed by the CJ for the
purpose
Service of summons
122 ACJA, S86 ACJL Lagos, S136 ACJL Kano: A summons shall be served by a police
officer or by an officer of the court issuing it or other public officer, or through a courier service
company duly registered with the Chief Judge as a process service agent of the court under this
Act.
POOC
i. a police officer
ii. an officer of the court issuing it or
iii. other public officer, or
iv. through a courier service company duly registered with the CJ as a process service agent.
NB: Kano added that it may be served by email.
Normal Methods of Effecting Service
S123 ACJA, S87 ACJL Lagos, S137 ACJL Kano: The person effecting service of a summons
shall effect it by delivering it on:
a) an individual, to him personally; or

b) a firm or corporation;
(i) to one of the partners,
(ii) to a director,
(iii) to the secretary,
(iv) to the chief agent within the jurisdiction,
(v) by leaving it at the principal place of business in Nigeria of the firm or
corporation, or
(vi) to anyone having, at the time of service, control of the business of the firm;
c) a Local Government Council, then in accordance with the Local Government Act or Law;
d) the Nigeria Police Force, or the office of the Inspector-General of Police, to the
Commissioner of Police of the Federal Capital Territory, Abuja or of the State;
e) any Federal Government Ministry, Department or Agency, to the Attorney-General of the
Federation or to the Legal Department of such Ministry, Department or Agency;
f) any state Government Ministry, Department or Agency, to the Attorney-General of the
State or to the Legal Department of such Ministry, Department or Agency; or
g) any arm of the armed forces, to the Director of Legal Services of the Service or
Command concerned.
17
i. Individual – personal
ii. Firm or corporation – partner, director, secretary, chief agent within jurisdiction,
principal place of biz, someone in control of the biz
iii. LG – LG Act or Law
iv. NPF or IGP – COP
v. MDAs – AGF (AGS) or legal dept of such MDA
vi. Armed Forces – Director of legal services
Service where person summoned cannot be found or Substituted Service
S124 ACJA, S88 ACJL Lagos, S138 ACJL Kano: Where service in the manner provided by
section 123 (a) of this Act cannot, by the exercise of due diligence, be effected, the serving
officer may, with leave of the court, affix one of the duplicates of the summons to some
conspicuous part of the premises or place in which the individual to be served ordinarily resides
or works, and on doing so the summons shall be deemed to have been duly served.
NB: substituted service must be by leave of court.
Service on public officers or persons in government service
S125 ACJA, S89 ACJL Lagos, 139 ACJL Kano:
125 ACJA:
(1) Where a public officer is to be served with a summons, the court issuing the summons may
send it in duplicate to the officer in charge of the department in which the person is employed for
the purpose of being served on the person, if it appears to the court that it may be most
conveniently so served.
(2) The officer in charge of the department shall, on receiving the summons, cause it to be served
in the manner provided by section 123 (a) of this Act and shall return the duplicate to the court
under his signature, with the endorsement required by section 115 of this Act, which signature
shall be evidence of the service.
Service outside jurisdiction of court
S126 ACJA, S91 ACJL Lagos, 140 ACJL Kano: Where a court issues a summons to a person
outside its jurisdiction, the summons shall be sent in duplicate to a court in whose jurisdiction the
person resides or works.
Proof of service when serving officer not present
18
S127 ACJA, S90 ACJL Lagos, 141 ACJL Kano: Where the officer who served a summons is
not present at the hearing of the case, proof of service may be done by endorsement on a
duplicate of the summons and by an affidavit showing when and how the service was effected.
Receipt of service of summons
S128 ACJA, S92 ACJL Lagos, S142 ACJL Kano:
(1) Where a summons has been served on the person to whom it is addressed or is delivered to
any other person, the person to whom it is addressed or the person to whom it is delivered, as the
case may be, shall acknowledge receipt at the back of the duplicate.
(2) Where service is not effected by delivering the summons to an individual but by some other
method approved by this Act, the person effecting service shall endorse on the duplicate
particulars of the method by which he effected service.
Effect of failure to obey summons
S131 ACJA, S94 ACJL Lagos, S145 ACJL Kano: Where the court is satisfied that the suspect
has been served with a summons and the suspect does not appear at the time and place appointed
in and by the summons and his personal attendance has not been dispensed with under section
135 of this Act, the court may issue a warrant for his arrest and production before the court.
Dispensing with the presence of accused
S135 ACJA:
(1) Where a Magistrate issues a summons in respect of any offence for which the penalty is a
fine not exceeding N10,000.00 or imprisonment for a term not exceeding six months or both, the
Magistrate, on application of the defendant:
a) may dispense with the personal attendance of the defendant where the offence is
punishable by fine or imprisonment or both; and
b) shall dispense with personal attendance of the defendant where the offence is punishable
by fine only if the defendant pleads guilty in writing or appears and so pleads by his legal
practitioner.
(2) The Magistrate trying a case in which the presence of the defendant has been dispensed with,
may in his discretion, at any subsequent stage of the proceedings, direct the personal attendance
of the defendant and where necessary, enforce the attendance by means of the issuance of a
warrant to arrest the defendant and bring him before the court.
Life span of summons

19
The life span of a summons is that it remains in force until it is either executed or cancelled.
S139 ACJA, S100 ACJL Lagos, S149 ACJL Kano: A summons, warrant of any description or
other process issued under a law shall not be invalidated by reason of the person who signed the
summons or warrant being dead, ceasing to hold office or have jurisdiction.
Public summons
SS 41 and 42 ACJA:
S41; Where a court has reason to believe, whether after evidence or not, that a suspect, against
whom a warrant of arrest has been issued by itself or by any court or Justice of the Peace, has
absconded or is concealing himself so that the warrant cannot be executed, the court may publish
a public summons in writing requiring that person to appear at a specific place and a specific
time not less than 30 days from the date of publishing the public summons.
S42(1) A public summons shall be published:
a) in a newspaper that enjoys wide circulation or circulated in any other medium as may be
appropriate;
b) by affixing it to some conspicuous part of the house or premises or to some conspicuous
place in the town or village, in which the person ordinarily resides; or
c) by affixing a copy to some conspicuous part of the High Court or Magistrate’s court
building.
(2) A statement in writing from the Judge of the High Court or a Magistrate to the effect that the
public summons was duly published on a specified day, shall be conclusive evidence that
requirements of this section have been complied with and that the public summons was
published on such day.
20
SAMPLE DRAFTS IN LINE WITH FIRST SCHEDULE OF ACJA 2015
FORM NO 3 - COMPLAINT
IN THE HIGH COURT OF LAGOS STATE
IN THE IKEJA JUDICIAL DIVISION
HOLDEN AT LAGOS
Charge No: LG/HC/2022/1591
COMPLAINT
The complaint of C.D (address and description), who upon oath (or affirmation) states that A. B
of (address and description) on the …….. day of ……………………………., 20………… at
…………………… in the ……………………………… above-mentioned, did*
………………………………………………………………………………………………………
………………………………………………………………………………………………………
……… taken before me this……………………day of……………………….
………………………………………
Judge [or Magistrate]
21
FORM NO. 4
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
SUMMONS TO DEFENDANT
To A. B of ………………………
Complaint has been made this day by …………………… that you on

the……………………..day of …………. 20……... at…………………………in the
……………………………………. above-mentioned did* ………………………………………
*State concisely the substance of the compliant
You are hereby summoned to appear before the……………. High/magistrate’s court sitting
at……………………………………………………on the ……………….day of………… 20….,
at the hour of………………. in the…………….noon to answer to the said complaint.
Dated this……………………..day of…... 20…………
…………………………………….
22
FORM NO. 5
HOLDEN AT LAGOS
WARRANT FOR ARREST OF DEFENDANT WHO HAS DISOBEYED SUMMONS
To…………………. Police Officer or to each and all Police Officers.
Complaint has been made on the…………………day of…………20……….. that A.B

hereinafter called the defendant on the……………………………...day
of……………………20…….………in the above-mentioned
did*…………………………………………………………………………………
…………………………………………………………………………………………………
*State concisely the substance of the compliant
And the defendant was thereupon summoned to appear before the High/Magistrate’s Court of the
……………………………………….. in the Judicial Division/Magistrate District sitting
at………………on the……………...day of………………….at the hour of…………….in
the……………noon, to answer to the said charge:
…………………………………………………………………………………………………
An oath has been made that the defendant was duly served with the summons, but did not
appear, and that such complaint is true.
You are hereby commanded to bring the defendant before High/Magistrate’s Court of the
………. in the Judicial Division/Magisterial District sitting at
23
………………………………………….. forthwith to answer to the said complaint or be further

dealt with according to law
Dated the……………….day of……………..20…………
………………………………………
24
FORM NO. 6
HOLDEN AT LAGOS
WARRANT FOR ARREST OF DEFENDANT IN FIRST INSTANCE
To……………………………………………………….Police Officer
Complaint on oath has been made on the ………. day of ……………………………………, by

……………………………….…….... that A.B., hereinafter called the defendant on the
…………………… day of ………………………………………………………..…... at
…………………………………………..…… in the ………………………….. above-mentioned
did* ………………………………………………………………………………
*State concisely the substance of the complaint
You are hereby commanded to bring the defendant before High/Magistrate Court of the
…………………………in the Judicial Division/ Magisterial District sitting at
…………………… ……………………………...to forthwith answer the said complaint and be
dealt with according to law.
Dated the…………. day of………………… 20……..
……………………………………
25
FORM NO. 7
IN THE MAGISTRATE COURT OF LAGOS STATE
IN THE YABA MAGISTERIAL DISTRICT
HOLDEN AT LAGOS
SEARCH WARRANT
In the Magistrate Court of …………………………………. Magistrate District
To …………………………………… and …………………………………….
Whereas information on oath and in writing this day has been made that there is reasonable
ground for believing that there is in (state the place to be searched and state what is to be
searched for in the terms of (a), (b) or (c) of 144(1) of this Act.)
You are hereby commanded in the name of the Federal Republic of Nigeria, with proper
assistance, to enter the above-named (state the place to be searched) and there diligently search
for the things aforesaid and where the same or any part thereof found on search, to bring the
things found, and also the said (name the occupier of the place to be searched) before this Court
to be dealt with according to law.
This warrant may be executed at any time on any day, including a Sunday or public holiday and
may also be executed at any hour during day or night.
Issued at …………………………….. this …………….. day of …………………. 20……….
…………………………………
Magistrate
26
INVENTORY OF ITEMS RECOVERED DURING EXECUTION OF SEARCH

WARRANT IN TERMS OF SECTION 144
A. LIST OF ITEMS DETAINED AND PLACE OF SUCH DETENTION
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
B. LIST OF ITEMS RELEASED TO THE OWNER(S)
1.
2.
3.
4.
5.
6.
7.
8.
9.
27
10.
WITNESSES
…………………………………… ………………………………………..
NAME/RANK/FORCE No. OF NAME/TITLE OF THE
OFFICER OCCUPIER OF THE EXECUTING THE WARRANT.
PLACE SEARCHED
…………………………………… ……………………………………….
NAME/RANK.FORCE No OF NAME.TITLE OF AN
ACCOUNTING OFFICER INDEPENDENT WITNESS
Dated the ……………day of……………………. 20…. ….
28
ARREST
Arrest Generally
S32 PA, S3 ACJA, S26 ACJL Kano, A suspect or defendant alleged or charged with
committing an offence established by an Act of the National Assembly shall be arrested,
investigated, inquired into, tried or dealt with according to the provisions of this Act, except
otherwise provided under this Act.
Mode of arrest
S4 ACJA, S1 ACJL Lagos, S27 ACJL Kano,
In making an arrest, the police officer or other persons making the arrest shall actually touch or
confine the body of the suspect, unless there is a submission to the custody by word or action.
No unnecessary restraint
S34 PA, S5 ACJA, S2 ACJL Lagos, S28 ACJL Kano,
A suspect or defendant may not be handcuffed, bound or be subjected to restraint except:
(a) there is reasonable apprehension of violence or an attempt to escape;
(b) the restraint is considered necessary for the safety of the suspect or defendant; or
(c) by order of a court.
Notification of cause of arrest and rights of suspect
S35 PA, S6 ACJA, S3 ACJL Lagos, S29 ACJL Kano
(1) Except when the suspect is in the actual course of the commission of an offence or is pursued
immediately after the commission of an offence or has escaped from lawful custody, the police
officer or other persons making the arrest shall inform the suspect immediately of the reason for
the arrest.
(2) The police officer or the person making the arrest or the police officer in charge of a police
station shall inform the suspect of his rights to:
(a) remain silent or avoid answering any question until after consultation with a legal practitioner
or any other person of his own choice; also 35(2) CFRN
29
(b) consult a legal practitioner of his choice before making, endorsing or writing any statement or
answering any question put to him after arrest; and
(c) free legal representation by the Legal Aid Council of Nigeria where applicable:
Provided the authority having custody of the suspect shall have the responsibility of notifying the
next of kin or relative of the suspect of the arrest at no cost to the suspect.
Arrest in lieu prohibited
A person shall not be arrested in place of a suspect.
Humane treatment of arrested suspect
(1) A suspect shall:
(a) be accorded humane treatment, having regard to his right to the dignity of his person; and
(b) not be subjected to any form of torture, cruel, inhuman or degrading treatment.
(2) A suspect shall not be arrested merely on a civil wrong or breach of contract.
(3) A suspect shall be brought before the court as prescribed by this Act or any other written law
or otherwise released conditionally or unconditionally.
(4) The arraignment and trial of a suspect for a crime shall be in accordance with the provisions
of this Act unless otherwise stated in this Act.
In Holgate Mohammed v. Duke (1984) Vol. 79 CR. App. Rep. 120, the House of Lords stated
the meaning of the word “arrest” as follows: “it is a continuing act and starts with the arrester
taking a person into custody, it continues until the person restrained is either released from
custody or having been brought before a Magistrate is remanded in custody, by the Magistrate's
judicial act.”
On what constitutes a lawful arrest, House of Lords said, “The mere act of taking a person into
custody does not constitute an arrest unless that person knows, either at the time when he is first
taken into custody or as soon thereafter as it is reasonably practicable to inform, upon what
charge, or on suspicion of what crime he is being arrested.” See also See also Christie v.
Leachinsky (1947) A.C. 573.
30
ARREST ON WARRANT
A warrant of arrest is an authority in writing by a Court to a police officer or any other person to
arrest an offender.
General authority to issue warrant
S35 ACJA, S21 ACJL Lagos, S54 ACJL Kano: Where under a law, there is power to arrest a
suspect without warrant, a warrant for his arrest may be issued.
See also, S135(2) ACJA which provides on dispensing with the presence of accused after
summons has been issued that the Magistrate trying a case in which the presence of the
defendant has been dispensed with, may in his discretion, at any subsequent stage of the
proceedings, direct the personal attendance of the defendant and where necessary, enforce the
attendance by means of the issuance of a warrant to arrest the defendant and bring him
before the court.
NB: According to the circumstances of the case, it is at the discretion of the court to either issue
a warrant of arrest or summons at first instance. S114 ACJA, S80 ACJL Lagos, S131 ACJL
Kano: In every case, the court may proceed either by way of summons to the defendant or by
way of warrant for his arrest in the first instance according to the nature and circumstances of the
case.
Circumstances under which Warrant can be Issued
i. where the allegation against the offender is a serious one and or

ii. where a summons is disobeyed.
iii. a law creating an offence may provide that an offender cannot be arrested without a
warrant or that he cannot be so arrested unless found committing the offence e.g.,
Sections 422 and 419 of the Criminal Code. But even for such offences, an arrest
without warrant will not vitiate any proceedings arising therefrom. See State v. Osler
(1991) 6 N.W.L.R (pt. 199) 576.
Form and content of warrant of arrest
S36 ACJA, S22 ACJL Lagoa, S55 ACJL Kano:
(1) A warrant of arrest issued under this Act, unless the contrary is expressly provided under any
other law, shall:
(a) bear the date of the day of issue;
(b) contain all necessary particulars; and

31
(c) be signed by the Judge or Magistrate by whom it is issued.
(2) A warrant shall state concisely the offence or matter for which it is issued and shall name or
otherwise describe the suspect to be arrested, and it shall order the police officer or officers to
whom it is directed to arrest the suspect and bring him before the court to answer the complaint
or statement, or to testify or be dealt with according to the circumstances of the case, and to be
further dealt with according to law.
Warrant to be issued on complaint only if on oath
A warrant of arrest is issued by a Judge, Magistrate, or Justice of Peace (North only) on a

complaint. The complaint must be on oath. S37 ACJA, S23 ACJL Lagos, S56 ACJL Kano: A
warrant of arrest shall not be issued in the first instance in respect of any complaint or statement
unless the complaint or statement is on oath either by the complainant himself or by a material
witness. Ikonne v. The Commissioner of Police (1986) 4 N.W.L.R (pt. 36) 473.
By virtue of S89(1)(d) CFRN the National Assembly (either senate or reps).
Time of Issuance
S38 ACJA, S24 ACJL Lagos, S57 ACJL Kano A warrant of arrest may be issued on any day,
including a Sunday or public holiday.
Warrant, to whom directed and duration
S39 ACJA, S25 ACJL Lagos, S58 ACJL Kano
(1) A warrant of arrest may be directed to a police officer by name or to all police officers.
(2) It is not necessary to make a warrant of arrest returnable at any particular time and a warrant
shall remain in force until it is executed or until a Judge or a Magistrate cancels it.
(3) Where a warrant of arrest has been executed and the suspect arrested has been released, the
warrant shall no longer be valid authority for re-arresting the suspect.
Warrant of arrest may in exceptional cases be directed to other persons
S40 ACJA, S26 ACJL Lagos, S59 ACJL Kano: A court issuing a warrant of arrest may, where
its immediate execution is necessary and no police officer is immediately available, direct it to
some other person or persons and the person or persons shall execute the same.
Execution of warrant and procedure
32
(1) A warrant of arrest may be executed on any day, including a Sunday or public holiday.
(2) A warrant of arrest may be executed by any police officer at any time and in any place in any
State other than within the actual court room in which a court is sitting.
(3) The Police officer executing a warrant of arrest shall, before making the arrest, inform the
suspect to be arrested that there is a warrant for his arrest unless there is reasonable cause for
abstaining from giving the information on the ground that it is likely to occasion escape,
resistance or rescue.
(4) A suspect arrested on a warrant of arrest shall, subject to the provisions of the Constitution of
the Federal Republic of Nigeria, sections 44 and 45 of this Act, be brought before the court that
issued the warrant of arrest.
It may also not be executed in Parliament or a Legislative House without the permission of the
President or Speaker. See Sections 15 & 30 Legislative Houses (Powers and Privileges) Act
1958. “Notwithstanding anything in any written law, no process issued by any court in Nigeria in
the exercise of its civil jurisdiction shall be served or executed within the Chamber or precincts
of a Legislative House while that House is sitting or through the President, Speaker or any
officer of a Legislative House”. Only applies to civil matters. See also Tony Momoh v. Senate
of National Assembly (1981) N.C.L.R. 2 1.
Power to arrest on warrant but without the warrant
S44 ACJA, S28 ACJL Lagos, S62 ACJL Kano: A warrant of arrest may be executed
notwithstanding that it is not in the possession at the time of the person executing the warrant but
the warrant shall, on the demand of the suspect, be shown to him as soon as practicable after his
arrest.
Consequences of Disobeying Warrant of Arrest (Public Summons – North & FCT Only)
Public Summons is issued by a Judge of the High Court where there is evidence showing that a
person against whom warrant of arrest was issued has absconded or is concealing himself in
order to frustrate the execution of the warrant. The Judge may publish a public summons in
writing requiring the person to appear at a specified date and time, within 30 days from the date
of publication – SS41&42 ACJA, S60 ACJL Kano. See further explanation under summons
above.
33
BAIL BY ORDER OF COURT ON EXECUTION OF WARRANT OF ARREST
Court may direct particulars of security to be taken on execution of warrant: S45 ACJA,
S29 ACJL Lagos, S63 ACJL Kano
(1) A court, on issuing a warrant for the arrest of a suspect in respect of a matter other than an
offence punishable with death, may, if it thinks fit by endorsement on the warrant, direct that the
suspect named in the warrant be released on bail on his entering into such a recognizance for his
appearance as may be required in the endorsement.
(2) The endorsement shall specify:
a) the number of sureties, if any;

b) the amount in which they and the suspect named in the warrant are, respectively, to be
bound; or are to provide as cash security on the request of the surety or suspect;
c) the court before which the arrested suspect is to attend; and
d) the time at which the suspect is to attend, including an undertaking to appear at a
subsequent time as may be directed by any court before which he may appear.
(3) Where an endorsement is made, the officer in charge of a police station to which on arrest the
suspect named in the warrant is brought, shall discharge him on his entering into a recognizance,
with or without sureties approved by that officer, in accordance with the endorsement,
conditioned for his appearance before the court and at the time and place named in the
recognizance.
(4) Where security is taken under this section the officer who takes the recognizance shall cause
it to be forwarded to the court before which the suspect named in the recognizance is bound to
appear.
(5) Subject to the provisions of section 46 of this Act, the provisions of subsections (3) and (4) of
this section shall not have effect with respect to a warrant executed outside Nigeria.
EXECUTION OF WARRANT OUT OF DIVISION OR DISTRICT IN WHICH ISSUED
Procedure on arrest of suspect outside division or district of court issuing warrant. S46
ACJA, S30 ACJL Lagos, S64 ACJL Kano
46(1) Where a warrant of arrest is executed in a State outside the division or district of the court
by which it was issued, the suspect shall, unless security is taken under section 45 of this Act, be
taken before the court within the division or district in which the arrest was made.
(2) The court shall, if the suspect, on such inquiry as the court considers necessary, appears to be
the suspect intended to be arrested by the court which issued the warrant, direct his removal in
34
custody to that court, but if the suspect has been arrested in respect of any matter other than an
offence punishable with death and:
a) is ready and willing to give bail to the satisfaction of the court within the division or
district of which he was arrested; or
b) where a direction had been endorsed under section 45 of this Act on the warrant and the
suspect is ready and willing to give the security required by the direction, the court shall
take bail or security, as the case may be, and shall forward the recognizance, if such be
entered into, to the court which issued the warrant.
(3) Nothing in this section is deemed to prevent a police officer from taking security under
section 30 of this Act.
Should a Magistrate to whom the warrant is taken endorse it as a matter of course?
NO. He has to satisfy himself that there are sufficient grounds for the issuance of the warrant by
the issuing state. Thus, if its issuance results in abuse of legal process, he has to refuse his
endorsement on the warrant. See The Police v. Apampa Suit No. 42/1968. Also, where the
warrant is issued in respect of an offence not known to the law of the state of issue or which
offence has ceased to be an offence in the state of issue, he should not make any endorsement.
See R. v. The Comr of Metropolitan Police Exparte Harmond (1964) 3 WL.R.I. Where a
warrant of arrest is not endorsed before an arrestee is moved from one place to another, the non-
endorsement will be regarded as a mere procedural irregularity which cannot vitiate proceedings
unless there is a failure of justice. See Mattaradona v. Alu (1995) 8 N.W.L.R (pt. 412),225.
NB: the endorsement requirement is under CPL which is no longer relevant especially for the
purpose of Bar Finals but it is necessary to take note of the cases in case they appear in MCQs.
Warrant issued by the Federal High Court
S47(1) ACJA A warrant of arrest issued by a Federal High Court sitting anywhere in Nigeria
may be executed in any part of Nigeria. This was upheld in Abiola v FRN but note 2021 SC
decision in Belgore v FRN, wherein the SC held that the FHC in Lagos lacked jurisdiction to try
the charge against the appellant because the crime was not committed in Lagos but Kwara state.
The difference between the two is that the former is on execution of warrant of arrest while the
latter is proper prosecution of the case.
Irregularities in summons, warrant, service, or arrest
35
Where a defendant is before a court, whether voluntarily, or on summons, or after being arrested
with or without warrant, or while in custody for the same or any other offence, the trial may be
held notwithstanding:
(a) any irregularity, defect, or error in the summons or warrant, or the issuing, service, or
execution of the summons or warrant;
(b) the want of any complaint on oath; or
(c) any defect in the complaint, or any irregularity in the arrest or custody of the defendant.
Variation between charge, summons or warrants
S138 ACJA, S99 ACJL Lagos, S148 ACJL Kano A variance between the charge contained in
the summons or warrant and the offence alleged in the complaint, or between any of them and
the evidence adduced on the part of the prosecution, shall not affect the validity of any
proceeding.
Process valid notwithstanding death or vacation of office of person issuing
S139 ACJA, S100 ACJL Lagos, S149 ACJL Kano A summons, warrant of any description or
other process issued under a law shall not be invalidated by reason of the person who signed the
summons or warrant being dead, ceasing to hold office or have jurisdiction.
ARREST WITHOUT WARRANT
Who can arrest without warrant?
An arrest without warrant can be made by three categories of persons, namely:
• Police officers
• Judicial officers
• Private persons
(a) Police
Arrest by police officer without warrant
S38 Police Act (PA), S18 ACJA, S10 ACJL Lagos, S41 ACJL Kano
38.-(1) A police officer may, without an order of a court and without a warrant of arrest, arrest a
suspect-
36
a) whom he suspects on reasonable grounds of having committed an offence, against a law

in Nigeria or against the law of any other country, unless the law creating the offence
provides that the suspect cannot be arrested without, warrant.
b) who commits an offence in his presence;
c) who obstructs a police officer while in the execution of his duty, or who has escaped or
attempts to escape from lawful custody;
d) in whose possession anything is found which may reasonably be suspected to be stolen
property or who may reasonably be suspected of having committed an offence with
reference to the thing;
e) whom he suspects on reasonable grounds of being a deserter from any of the armed
forces of Nigeria;
f) whom he suspects on reasonable grounds of having been involved in an act committed at
a place outside Nigeria which, if committed in Nigeria, would have been punished as an
offence, and for which he is, under a law in force in Nigeria, liable to be apprehended and
detained in Nigeria;
g) having in his possession without lawful excuse, the burden of proof which excuse shall
lie on the person, any implement of housebreaking, car theft, firearm or any offensive or
dangerous weapon;
h) whom he has reasonable cause to believe a warrant of arrest has been issued by a court of
competent jurisdiction in Nigeria;
i) found in Nigeria taking precautions to conceal his presence in circumstances, which
afford reason to believe that he is taking such precautions with a view to committing an
offence;
j) whom he is directed to arrest by a judge or magistrate;
k) whom he reasonably suspects to be planning to commit an offence for which the police
officer may arrest without a warrant, if it appears to him that the commission of the
offence cannot be otherwise prevented; or
l) required to appear by a public summons issued under this Act or any other Act,
m) to protect a child or other vulnerable person from the suspect in question; and
n) to prevent the suspect in question from-
i. causing physical injury to himself or any other person,
ii. suffering from physical injury,
iii. causing loss of or damage to property;
iv. committing an offence against public decency where members of the public going
about their normal business cannot reasonably be expected to avoid the person in
question, or
v. causing an unlawful obstruction of the highway
(2) No person shall be arrested without warrant except as provided in subsection (1).
37
(3) The authority given to a police officer to arrest a suspect who commits an offence in his
presence is exercisable in respect of offences committed in the officer’s presence
notwithstanding that the Act creating the offence provides that the suspect cannot be arrested
without a warrant.
See also Dallison v. Caffrey (1964) 2 Al E.R 1203; Associated Provincial Picture House Ltd.
v. Wednesbury Corporation (1948) 1 K.B.224. see Lord Diplock in Holgate Mohammed v.
The Duke 79 Cr. App.Rep.120.
NB Agaba: The test of reasonability is an objective one to be determined from the circumstances
of each case. In Commissioner of Police v. Obolo, it was held that the test of reasonability of
belief is not a subjective one but an objective one. It was further held that whenever the question
arises as to whether an arrest was lawful in a given circumstance the burden is on the person who
carried out the arrest to show that the arrest and or detention was constitutional or lawful in the
circumstance. In Jackson v. Omorokuna, the plaintiff and another person were seen at night in
a crime prone area dragging a motorcycle, the key and particulars to which the duo could not
produce on demand. When the defendant demanded for the particulars and the ignition keys and
the plaintiff and his colleague could not produce them, he arrested them and took them to the
police station where they were detained. Upon their release, the plaintiff brought this action
against the defendant for unlawful arrest and false imprisonment. The court held that the
circumstances of the plaintiff's arrest were such that it cannot be said that the defendant has no
reasonable ground to suspect the plaintiff and the other person per Igu J (as he then was).
NB: It may well be that an offence has not been in fact committed. Notwithstanding a police
officer who on reasonable grounds effects an arrest is not liable for false imprisonment See
Dallison v. Caffrey (1964) 2 All E.R. 1203. The House of Lords noted in a case that to
determine whether it was reasonable for a constable to have arrested a person without warrant
based upon a suspicion that an offence has been committed, the power of the police to arrest
being an executive discretion must be exercised in good faith to the exclusion of considerations
of matters which are irrelevant to what he has to consider. This is the Wednesbury principles
fashioned after the classical case of Associated Provincial Picture House Ltd. v. Wednesbury
Corporation (1948) 1 K.B. 224. See Lord Diplock in Holgate Mohammed v. The Duke 79
Cr. App. Rep. 120.
NB: A person arrested on the authority of a warrant cannot be re-arrested based on the same
warrant but instead be re-arrested without warrant. In R v. Akinyanju where the accused was
arrested on a previously executed arrest warrant, the court held that as soon as arrest warrant has
been executed, it loses its life span. Hence the act of re-arresting the accused on a warrant which
had been earlier executed is irregular.
In arrest without warrant, once the arrest is made upon reasonable grounds, the police is not in
breach of any law - Jackson v. Omorokuna. If the arrest is not based on reasonable suspicion,
the police may be liable for unlawful arrest - COP v. Obolo. If no offence was actually
38
committed, and although an offence was committed, the arrested person was not responsible for
it, the Police Officer is not liable for unlawful arrest - Wiltshire v. Barrett. Where a policeman
detains a suspect in order to confirm his alibi or to investigate the case further, he would not be
liable for false imprisonment - Dallison v. Caffery.
(b) Private Person
12 (1) A private person may arrest any person who commits an offence triable on information in
his presence or whom he reasonably suspects of having committed an offence triable on
information.
(2) After the arrest of the person under subsection (1) of this Section, a private person shall not
subject the arrested person to torture, inhuman or degrading treatment.
Arrest by owner of property: S21 ACJA, S13 ACJL Lagos, S4(3) ACJL Kano
A suspect found committing an offence involving injury to property may be arrested without a
warrant by the owner of the property or his servants, agent or persons authorised by him.
NB: 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.
A person who resists by force an attempt by a private person to arrest him in the exercise of his
right cannot claim the benefit of self-defence - Abdullahi v. Borno Native Authority.
NB: 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 – S. 98 ACJL, OKOTIE
v. COP. Thus, it is only the arrest that is unlawful. At best if the fundamental rights 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.
(c) The Magistrate/Judge/Justice of the Peace
S25 ACJA, S16 ACJL Lagos, S45(2) ACJL Kano (1) A Magistrate may arrest or direct the
arrest in his presence of a suspect whose arrest on a warrant he could have lawfully ordered if the
facts known to him at the time of making or directing the arrest had been stated before him on
oath by some other person.
39
(2) Where a suspect is arrested in accordance with the provisions of either section 23 or 24 of
this Act, the Judge or Magistrate making or directing the making of such arrest may deal with the
suspect so arrested in the same manner as if the suspect had been brought before him by or under
the directions of any other person.
S41 PA, S26 ACJA, S15 ACJL Lagos, S45(1) ACJL Kano
A Judge, Magistrate, or Justice of the Peace may arrest or direct the arrest of a suspect
committing an offence in his presence and shall thereupon hand him over to a police officer who
shall proceed to take necessary action.
How to deal with the person arrested
S14 ACJA, S43 PA:
(1) A suspect who is arrested, whether with or without a warrant, shall be taken immediately to a
police station, or other place for the reception of suspect, and shall be promptly informed of the
allegation against him in the language he understands.
(2) A person who has the custody of an arrested suspect shall give the suspect reasonable
facilities for obtaining legal advice, access to communication for taking steps to furnish bail, and
otherwise making arrangements for his defence or release.
(3) Notwithstanding the provision of subsection (2) of this section, any such communication or
legal advice shall be done in the presence of an officer who has custody of the arrested suspect.
Handing over of an arrested suspect by private person
S40 PA, S23 ACJA, S14 ACJL Lagos, S44 ACJL Kano:
(1) A private person who arrests a suspect without a warrant shall immediately hand over the
suspect so arrested to a police officer, or, in the absence of a police officer, shall take the suspect
to the nearest police station, and the police officer shall make a note of the name, address and
other particulars of the private person making the arrest.
(2) Where there is reason to believe that the arrested suspect comes under the provisions of
section 18 (1) of this Act, a police officer shall re-arrest him.
(3) Where there is reason to believe that the suspect has committed an offence, and he refuses on
the demand of a police officer to give his name and address, or gives a name or address which
the officer reasonably believes to be false, he shall be dealt with under the provisions of section
19 of this Act.
40
(4) Where a suspect so arrested by a private person is handed over to a police officer or to an
official of an agency authorized by law to make arrests, the police officer or official shall take
note of the name, residential address and other particulars of the private person making the
arrest, and the date, time and other circumstances of the arrest, and where the arrested suspect is
taken to the police station or to the agency, the charge room officer shall make the entries in the
crime diary.
(5) The police officer or official to whom the arrested suspect is handed over by the private
person shall obtain from the private person who made the arrest a formal witness statement
setting out the facts and circumstances of the arrest.
(6) Where there is sufficient reason to believe that the suspect handed over has committed an
offence, he shall immediately be re-arrested but if there is no sufficient reason to believe that the
suspect has committed an offence, he shall be released immediately.
What happens to the accused while in police station?
The law enjoins the police officer to bring the accused to Court within 40km radius having
jurisdiction over the case within twenty-four hours or within forty-eight hours in other cases, and
if this is not practicable, he shall be released on bail, upon his entering into recognizance with or
without sureties, except the offence is a capital offence or of a very serious nature. Section 35(5)
Constitution.
Release on bail of a suspect arrested without warrant
30 (1) Where a suspect has been taken into police custody without a warrant for an offence other
than an offence punishable with death, an officer in charge of a police station shall inquire into
the case and release the suspect arrested on bail subject to subsection (2) of this section, and
where it will not be practicable to bring the suspect before a court having jurisdiction with
respect to the offence alleged, within 24 hours after the arrest.
(2) The officer in charge of a police station shall release the suspect on bail on his entering into a
recognizance with or without sureties for a reasonable amount of money to appear before the
court or at the police station at the time and place named in the recognizance.
(3) Where a suspect is taken into custody and it appears to the police officer in charge of the
station that the offence is of a capital nature, the arrested suspect shall be detained in custody,
and the police officer may refer the matter to the Attorney-General of the Federation for legal
advice and cause the suspect to be taken before a court having jurisdiction with respect to the
offence within a reasonable time.
41
SEARCH
Search: search simply means the examination of a person's body, premises or thing. (It generally
infringes on S37 CFRN—right to privacy)
For the purpose of criminal litigation, search would mean looking for what has been concealed.
The purpose of a search is to obtain evidence of the commission of a crime.
Search could be of:
i. A person
ii. Premises
iii. Things
Power to Search
S48(1) PA, A police officer may seize and retain anything for which a search has been
authorised.
(2) ln every case in which property is seized under this section, the person on whose premises it
was at the time of seizure or the person from whom it was taken, if other than the person on
whose premises it was, may be summoned OF arrested and brought before a court to account for
his possession of the Property, and the court shall make such order on the disposal of the
property and may award costs as the justice of the case may require.
(3) An authority under subsection (2) may only be given when the premises to searched are, or
within the preceding twelve months have been, occupation of any person who has been
convicted of receiving stolen property or of harbouring thieves, or of any offence involving fraud
or dishonesty, and punishable by imprisonment.
(4) While searching the premises, a police officer shall not violate the human nights of persons
found in the premises that is being searched.
Search of Persons
A search on persons may be conducted with or without a search warrant. A search on persons is
usually done by policemen – Section 48 PA. Special prosecutors like NDLEA, EFCC, ICPC and
Customs officials can search persons without warrant - Section 494 NDLEA Act and Section
133 Custom & Excise Management Act. A police officer may detain and search any person
whom he reasonably suspects of having in his possession or conveying in any manner anything
which he has reason to believe to have been stolen or otherwise unlawfully obtained - Section 49
PA. The test of reasonable suspicion is an objective one not subjective. Thus, where a police
42
officer, without reasonable suspicion conducts the search of a person, he would render himself
liable in damages.
Search of arrested suspect
(1) Where a suspect is arrested by a police officer or a private person, the officer making the
arrest or to whom the private person hands over the suspect:
a) may search the suspect, using such force as may be reasonably necessary for the purpose;
and
b) shall place in safe custody all articles other than necessary wearing apparel found on the
suspect.
(2) Where an arrested suspect is admitted to bail and bail is furnished, he shall not, subject to the
provisions of section 11 of this Act, be searched unless there are reasonable grounds for
believing that he has on his person any:
a) stolen article;
b) instrument of violence or poisonous substance;
c) tools connected with the kind of offence which he is alleged to have committed; or
d) other articles which may furnish evidence against him in regard to the offence, which he
is alleged to have committed.
(3) Where it is necessary to search a suspect, the search shall be made decently and by a person
of the same sex unless the urgency of the situation or the interest of due administration of justice
makes it impracticable for the search to be carried out by a person of the same sex.
(4) Notwithstanding the provisions of this section, a police officer or any other person making an
arrest may in any case take from the suspect any instrument of violence or poisonous substance
which he has on his person.
Examination of arrested suspect.
S53 PA, S11 ACJA, S5(6) ACJL Lagos, S34 ACJL Kano Where a suspect is in lawful custody
on a charge of committing an offence of such a nature and alleged to have been committed in
such circumstances that there are reasonable grounds for believing that an examination of his
person will afford evidence as to the commission of the offence, a qualified medical practitioner
or any certified professional with relevant skills, acting at the request of a police officer, may
make such an examination of the suspect in custody as is reasonably necessary in order to
43
ascertain the facts which may afford the evidence, and to use such force as is reasonably
necessary for that purpose.
Where the person to be searched is a woman, the search shall only be conducted by another
woman. S149(3) ACJA, S109 ACJL Lagos, S159(3) ACJL Kano, where a suspect in or about
the building, thing or place is reasonably suspected of concealing on his person an article for
which search should be made, the suspect may be searched and where the suspect to be searched
is a woman she shall be searched by another woman and may be taken to a police station for that
purpose.
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: AC DOIG
a) Arrest purposes: 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 S55 PA, S7 ACJL; SS12(1)
and 149(1) ACJA.
b) Custom officer: A custom officer may enter or break into a place where he reasonably
believes that illegally imported goods are kept. S147 CEMA
c) Drugs: An officer of the NDLEA or police officer, in order to recover drugs kept in premises
may enter and search such premises. S32 NDLEA Act
d) Order of court: Acting upon an order of court for the release of an unlawfully abducted
person
e) Implied from a warrant of arrest: Warrant of arrest comes with an implied authority to
search person upon whom search is to be conducted.
f) Government property is harboured: 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. Commandant General NSCD & Anor v. Emason
Ukpeye, S3(1) – (3) Nigerian Security and Civil Defence (Amendment) Act 2001.
44
SEARCH WARRANTS
Application for search warrant.
S143 ACJA, S153 ACJL Kano Where an investigation under this Act is being made by a police
officer, he may apply to a court or Justice of the Peace within the local limits of whose
jurisdiction he is for the issue of a search warrant.
Cases in which search warrants may be issued
(1) Where a court or Justice of the Peace is satisfied by information on oath and in writing that
there is reasonable ground for believing that there is in any building, ship, carriage, receptacle,
motor vehicle, aircraft or place:
(a) anything upon or in respect of which any offence has been or is suspected to have
been committed,
(b) anything which there is reasonable ground for believing will provide evidence as to
the commission of an offence, or
(c) anything which there is reasonable ground for believing is intended to be used for the
purpose of committing an offence,
the court or Justice of the Peace may at any time issue a warrant authorising an officer of
the court, member of the police force, or other person named to act in accordance with
subsection (2) of this section.
(2) A search warrant issued under subsection (1) of this section shall authorize the officer of the
court, a police officer, or other person named to:
(a) search such building, ship, carriage, receptacle, motor vehicle, aircraft or place for
any such thing, and to seize any such thing until further trial proceeding before the court
issuing the search warrant or some other court to be dealt with according to law; and
(b) arrest the occupier of the house or place where the thing was found where the court
deems fit to direct on the warrant.
Who can issue a search warrant?
There are four categories of persons that can issue a search warrant. They are
45
i. Magistrate S146(1) ACJA, S106 ACJL Lagos, S156(1) ACJL Kano

ii. Judge S146(1) ACJA
iii. Justice of the Peace S146(1) ACJA
iv. Superior Police Officer above the rank of a Cadet ASP CAN NO LONGER ISSUE A
WARRANT FOR ARREST BY VIRTUE OF POLICE ACT 2020 WHICH
OMITTED SAME
Search warrant to whom directed
S147 ACJA, S107 ACJL Lagos, S157 ACJL Kano A search warrant may be directed to one or
more persons and, where directed to more than one, it may be executed by all or by any one or
more of them.
Time when search warrant may be issued and executed
S148 ACJA, S108 ACJL Lagos, S158 ACJL Kano A search warrant may be issued and
executed at any time on any day, including a Sunday or public holiday.
Difference in timing in ACJL Lagos
S108(1) A search warrant may be issued and executed on any day including a Sunday or public
holiday. It shall be executed between the hours of 5.00 a.m. and 8.00 p.m., but the Court may, in
its discretion, authorise by the warrant the execution of the warrant at any hour.
(2) Where a Magistrate authorises the execution of a search warrant at any hour other than
between the hours of 5.00 a.m. and 8.00 p.m. such authorisation 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.
Contents of a Search Warrant- AIDS
a) Address of the premises to be searched;

b) Items to be searched for;
c) Directive that the items be seized and brought to court; and
d) Signature of the person issuing it. ELIAS v. PASMORE
Life span of search warrant:
Search warrant remains in force until it is executed or cancelled by the Court that issued it-
S106(2) ACJL and 146(2) ACJA.
Seizing goods not specified in the search warrant:
46
Generally, only items mentioned in the search warrant should be seized. However, where the
person executing the search warrant comes across items which he reasonably believes to have
been stolen or are relevant in respect of other offences, he can lawfully seize such items-
Reynolds v The Commissioner of Police for the Metropolis (1985) 80 Cr. App. Rep. 125.
Execution of search warrant outside jurisdiction.
S151ACJA: 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.
Admissibility of evidence illegally obtained:
Non-compliance with any of the provisions of the law relating to the issuance and execution of a
search warrant will render such search unlawful. Where documents or any other materials are
seized from the premises of another in circumstances that render such removal unlawful, such
documents may notwithstanding, be admitted in evidence at the trial, where they are relevant.
Reason being that the basis of admissibility of any evidence is its relevancy-Kuruma v The
Queen 1955) 1 All E. R. 236. Musa Sadau v The State (1968) NMLR 208.
Section 14 Evidence Act, 2011, however, gives the Court the discretion to exclude improperly
obtained evidence if it is of the opinion that the undesirability of admitting it out-weights its
desirability. Section 15 Evidence Act, 2011 provides for matters the Court should take into
consideration in its exercise of discretion under Section 14 viz:
1. The probative value of the evidence;

2. The nature of the relevant offence, cause of action of defence and the nature of the
subject-matter of the proceeding;
3. The gravity of the impropriety or contravention;
4. Whether the impropriety or contravention was deliberate or reckless;
5. Whether any other proceeding, (whether or not in a court) has been or is likely to be
taken in relation to the impropriety or contravention; and
6. The difficulty, if any, of obtaining the evidence without impropriety or contravention of
law.
Liability for procuring a search warrant without reasonable cause:
Civil liability attaches to procurement of a search warrant without reasonable cause-
See: Wuraola Kuku v Olushoga (1962) 1 All NLR 625; Balogun v Amubikahu (1989) 3
NWLR (Pt. 107) 18; Bayol v Ahemba (1999) 10 NWLR (Pt. 623) 381; Garba v Maigoro
47
(1999) 10 NWLR (Pt.624) 555; Ojo v Lasisi (2003) All FWLR (Pt. 156) 886; UAC PLC v
Sobodu (2006) All FWLR (Pt. 329) 876.
Where a person without reasonable cause, cause a police officer to procure a search warrant
leading to the search of another, his premises or even leading to his arrest, detention and/or
prosecution, the person who laid such malicious complaint on the basis of which the officer acted
will be liable in damages. In the case of a complaint leading to arrest and detention of the
suspect, the complainant will be liable for false imprisonment. In the case of a search of the
person or his premises, the complainant will be liable for malicious procurement of a search
warrant. In the case of a complaint leading to the prosecution of the suspect, and which
prosecution of ended in an acquittal, the complainant will be liable for malicious prosecution
except there was reasonable and probable cause – Garba v Maigoro.
At all times, what is important in the consideration whether the defendant is liable is to ascertain
that the defendant set the law in motion against the plaintiff. Where the complainant sets the law
in motion against another person, there is no protection for him even where the actual arrest,
detention and perhaps, prosecution is done by the police – Balogun v. Amubikahu. However, in
Ojo v. Lasisi and UAC PLC v. Sobodu the Court held that there will be no liability where the
complaint was made in good faith and upon reasonable suspicion.
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-FOWLER V. DOHERTY J.I.C.
Where the complainant made a report, and a search warrant is issued and executed, he may not
be liable in damages for false imprisonment, if the person whose premises is searched is arrested
and detained by the Police: KUKU V. OLUSHOGA; ADEFUMILAYO V. ODUNTAN.
(C) SEARCH OF THINGS
• A search of things may be conducted with or without a search warrant,

• A police officer can stop and search vehicles on the road without a warrant- KARUMA
V. R
• Bag; No search warrant
• Aircraft; search warrant is needed
• Vessel; search warrant is needed
• Powers of search of things without warrant is also conferred on customs officers, the
Federal and State Task Forces of NAFDAC etc.
48
CONSTITUTIONAL SAFEGUARDS
1. Right to Life: a suspect is entitled to his right to life – Section 33(1) CFRN 1999. However,
the exception is as provided under Section 33 (2) (b) CFRN 1999 – killing of a suspect may be
justified in order to effect a lawful arrest or to prevent his escape from lawful detention.
2. Right to Dignity of Human Person: any search on or arrest of a suspect shall be done with
high sense of dignity. Such suspect shall not be threatened or tortured or molested. See Section
34 CFRN 1999.
3. Right to Personal Liberty: every suspect is entitled to his personal liberty. Thus, no suspect
shall be unlawfully arrested – Section 35(1) CFRN 1999. However, the exception under Section
35(1) (c) CFRN 1999 recognises the right to arrest a person under a warrant or on reasonable
suspicion of his having committed an offence or to prevent commission of offence.
4. Right to Remain Silent: a suspect arrested has the right to remain silent and not answer any
question until after consultation with a lawyer or any person of his choice - Section 35(2) CFRN
1999.
5. Right to be Informed of the Reasons of Arrest: Any person who is arrested or detained shall
be informed in writing within twenty-four hours (and in a language that he understands) of the
facts and grounds for his arrest or detention - Section 35(3) CFRN 1999.
6. Right to be Charged to Court within a Reasonable Time: Any person who is arrested or
detained in execution of an order of court or on reasonable suspicion of having committed a
crime or to prevent him from committing a crime, shall be brought before a court of law within a
reasonable time – Section 35(4) CFRN 1999. The expression "a reasonable time" means - (a) in
the case of an arrest or detention in any place where there is a court of competent jurisdiction
within a radius of 40km, a period of one day; and (b) in any other case, a period of two days or
such longer period as in the circumstances may be considered by the court to be reasonable -
Section 35 (5) CFRN 1999.
7. Right to Public Apology and Compensation: Section 35(6) CFRN 1999 makes provision
for public apology and compensation from the appropriate authority or person to a person who is
unlawfully arrested or detained.
Where these rules are violated, these steps may be taken:
i. Enforcement of FREP Rules 2009

ii. Habeas Corpus through originating motion S8(3) ACJA, S32 ACJA, S64(2) PA
iii. Right to administrative bail through a lawyer by providing sureties S30 ACJA
iv. If proved unjustifiable, the person is entitled to compensation, apology etc.
49
WEEK 5 – PRE-TRIAL INVESTIGATION AND POLICE INTERVIEWS
OUTCOMES
1. Explain how to Conduct a pre-trial investigation;

2. Participate in a police interview;
3. Discuss how alibi, statements and confessions are recorded at the police station (“Judges
Rule”) how identification parade is conducted and how exhibits are handled.
4. List and explain the Constitutional rights of a suspect at the Police Station;
5. Explain how to apply for assistance for a citizen under the Legal Aid Scheme; and how to
obtain a police bail.
6. Explain options available to the suspect upon refusal of police bail – habeas corpus and
fundamental rights enforcement.
CONTENTS:
1. How police interviews are conducted

2. Constitutional rights available to a suspect at the Police Station.
3. Advise on the rights and circumstances of Suspects that may require the services of the
Legal Aid Scheme;
4. Advise on the procedure to be followed by the Police in conducting an effective station
interview;
5. How to apply for police bail;
6. Advise on circumstances where the Police may grant bail pending further investigations.
7. Options available to the suspect upon refusal of bail by the police.
ACTIVITIES BEFORE CLASS:
1. Students are expected to read the topic in advance and would need to read the
following: The Constitution; Evidence Act, 2011 and the Judges Rules; the Police Act;
the CPCL; the CPL; ACJL of Lagos State,2011; ACJA, 2015 as well as the Legal Aid
Act (2011) and guidelines.
ACTIVITIES IN CLASS (to be based on the *********** scenario)
1. In the class Tutor gives an overview – 20 minutes

2. Students should state how to obtain confessions and admissions.
3. Students should state how to obtain confession and admissions in the police station
50
4. Students are grouped to discuss and ascertain the various constitutional rights relating to
police interviews; Sample presentations are made – 40 minutes.
5. Students are grouped to discuss and make sample presentations on the “Judges Rules” to
be observed at the Police Station and the procedure to follow when alibi is raised by a
suspect. - 40 minutes.
6. Students are grouped to role play police interviews and role play lawyer’s role in such
interviews; Discussions follow – 30 minutes.
15 MINUTES BREAK
7. Students mention the options available to the suspect where an application for bail is
refused by the police.
8. Students are grouped to conduct an Identification Parade; Discussions follow – 20
minutes.
9. Students are grouped to discuss and make presentations on the scope of Legal Aid
Scheme. – 30 minutes.
10. Students are grouped to discuss the procedure for granting police bail, draft application
for bail at the police station and make presentations – 30 minutes.
11. Students at plenary discuss how exhibits are kept at the police station.
12. Assessment – 20 minutes.
MEANING AND PURPOSE OF PRE-TRIAL INVESTIGATION
Investigation is a systematic collection of information about crime and the assembly of physical
and testimonial evidence within the frame work of the law for the purpose of identifying the
author of a crime and providing evidence for the successful prosecution of criminal suspects.
Authority to investigate:
The power of the police and other agencies to investigate a crime is derived from the provisions
of the laws that establish them. See SS. 4 and 31-46 PA2020; SS. 3-19 ACJA; 26-29 ACJL
KANO, 2019; SS. 1-10 ACJL, LAGOS; S. 12 EFCC Act; S.34 NDLEA ACT, etc.
The power of the police to investigate a crime is so strong to the extent that no court of law has
power to stop the police from investigating a crime and whether to or how to investigate a crime
is a matter within the discretion of the police. See S. 35(1)(C) CFRN’99 and the case of I.G.P.
vs UBA (2015) 11 N.W.L.R. (part 1471) p. 405 ratios 1-6; Hassan v EFCC (2014) 1 NWLR
(pt.1389)607, Fawehinmi v IGP (2002) 7 NWLR (pt. 767).
51
The SC held in Onyekwere v State that “If a complaint is made to the police that an offence has
been committed, it is their duty to investigate the case not only against the person about whom
the complaint was made, but also against any other person who may have taken part in the
commission of the offence.”
NB: powers of the police to investigate do not extend to settlement of civil disputes, breach of
contract or debt collection-Mclaren v Jennings (2002) LPELR-5784; S.8(2) ACJA; S. 31(2)
ACJL, KANO; S. 32(2) PA
Also; arrest and detention in lieu of another is prohibited-S.36 PA; S. 7 ACJA; S.30 ACJL,
KANO
It should be noted that police interview may involve not only a suspect, it may extend to
witnesses connected with the commission of the offence. So, the police has the right to invite
different persons in the course of investigation.
Rights of a suspect in custody
1. Right to be informed in writing of the reason for his arrest in the language he
understands. S, 35(3) CFRN’99; SS. 6 (1) & 14 (1) ACJA; S. 35 (1) PA; S. 3(1)
ACJL.; S.29 (1) & 37 ACJL, KANO
2. Right to be informed of his rights-(rights to remain silent, to legal representation/free
legal aid & right to get the suspect’s relatives notified of the fact that he has been arrested
and is under custody at no cost)-SS 6 ACJA; S.35 (2) & (3) PA; S. 29(2) ACJL, KANO
3. Right to remain silent: a person arrested or detained shall have right to remain silent
until after consultation with his legal practitioner or any other person of his choice. -S.35
(2) CFRN’99; S.17 (1) ACJA
4. Right not be subjected to any form of inhuman or degrading treatment. s. 34
cfrn’99; s. 8 (1) acja; SS. 34 & 37(1) PA; SS. 28 & 31(1) ACJL, KANO; Uzoakwo vs.
Ezeonu II (1991) 6 N.W.L.R. (part 200) p. 708.
5. Right to reasonable facilities for defence. S. 14 AND 15 ACJA., 2015; S. 37 (2)
ACJL KANO; S.43(2) PA; S. 37(2) ACJL, KANO
6. Right to interpreter: this applies where the suspect does not understand English which
is the official language in Nigeria. see S. 35(3) CFRN’99; S.17(3) ACJA; S. 43(1) &
60(3) PA; S. 37(1) ACJL, KANO
7. Right to be charged to court within reasonable time. S. 35(4) & (5) CFRN’99; S.
32(3) PA; S.31(3) ACJL, KANO
8. Right to legal representation –S.35(2) CFRN’99; S.17(2) ACJA; S.35(2) PA
9. Right to bail pending completion of investigation-S. 35(4) & (5) CFRN’99; S. 61, 62
& 63 PA; SS. 30 & 31 ACJA
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10. Right to have his statement (where he volunteers to make) taken in the presence of a
legal practitioner, an officer of the legal aid council, officer of any civil society org. or
any person of his own choice-S. 17(1) & (2) ACJA; S. 60(2) PA
11. Right to have his statement (where he volunteers to make) in writing and/or also
electronically recorded in video/audio or other similar means. S.15(4) ACJA; S.
38(4) ACJL, KANO; S.44(4) PA
12. Right to have a recorded inventory of all items/properties collected from him
properly recorded and signed. S.46 PA; S.10 ACJA
Agaba identified two type of investigation approaches to include:
• Crime-based investigation approach (CBIA)

• Target-based investigation approach (TBIA)
To be more effective and professional, Agaba recommends stages of the interview to include;
• Rapport Building Stage

• Information Exchange Stage
• Challenge Stage
• Concluding Stage
CONFESSIONAL STATEMENT AND THE JUDGES’ RULES
Meaning of confession:
Confession is an admission made at any time by a person charged with a crime stating or
suggesting the inference that he has committed that crime. S. 28 E.A.
This definition covers both extra judicial and judicial confession, as well as an incriminating
admission all short of full confession. Akpan vs The State (2001) F.W.L.R. (part 75) p. 428
ratio 1; Sule v State (2009) All FWLR (pt. 481) 809
It is settled that to be relevant and admissible in evidence, a confession must be voluntary and
must be a direct, positive and unequivocal admission of guilt. S. 29 E.A., see Musa vs The State
(2018) 7 scm. p. 92.; Kamila vs. The State (2018) 6 scm. p.100
Before a confessional statement could become relevant and admissible in evidence it must have
been made free from any form of oppression and must not have been made in consequence of
anything said or done which was likely in the circumstance existing at the time to render it
unreliable see SS. 29 E.A.
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In State v Ibrahim (2019) LPELR-47548 (SC), it was held that for a confession to be relevant
and admissible, the court must be satisfied that it was voluntarily made.
Recording statement of the suspect:
Before recording of the statement of suspect it is the requirement of the law that the suspect has a
right to decide whether to make a statement (right of silence). where he chooses to make, the
following would be observed:
• The making of the statement has to be in the presence of a legal practitioner of his
choice/an officer of the lac/an officer of CSO/any person of his choice-S. 17(1) & (2)
ACJA; S. 60(2) PA
• The statement must be in writing and/or also electronically recorded in video/audio or
other similar means. S15(4) ACJA; S38(4) ACJL, KANO; S44(4) PA (note that oral
confessional statement is still admissible-(5) of the above sections-FRN v Iweka (2013)
3 NWLR pt.1341 p. 285);
• Where a suspect does not understand or speak English, an interpreter can write for him.
he shall take down the exact words spoken by the suspect and both the suspect and the
interpreter must endorse. 17(3) (4) & (5) ACJA; see Olanipekun vs. The State (2016)
13 N.W.L.R. (part 1528) p. 100 at 104 ratio 2; State vs. Rabiu (2013)8 NWLR (pt. 1357)
p. 585.
NB: when a statement is recorded in a language different from the one understood by the suspect
a competent interpreter shall be used. the interpreter shall sign the statement. But failure to sign
may not affect the admissibility of the statement in evidence. But in the cause of trial, both the
recorder and the interpreter shall have to testify as to their role in taking the statement before it
becomes admissible. Nweze vs The State (1996) 2 N.W.LR. (part 428) p. 1. Olalekan vs. The
State (2002) f.w.lr. part 91 p. 1505., F.R.N. vs. Usman (2012) 8 N.W.L.R. (pt. 1301) p. 141;
Ifaramoye vs. The State (2017) 4 scm p. 1; (2017) N.W.L.R. (part 1568) p. 457 at 463 ratio 5;
Bello vs. C.O.P. (2018) 2 N.W.L.R. (part 1603) p. 267 at 274 ratio 2.
Types of Confessions
1. Formal/Judicial Confession: this is a confession made in court before a judge or a

Magistrate or other tribunal. For instance, where the accused pleads guilty to the charge
upon same being read to him by the court or where the accused admits guilt in a
statement in a preliminary inquiry.
2. Informal/Extra-Judicial Confession: any statement made outside the court by an
accused person or a suspect tending to show that he is guilty of the offence for which he
is charged or suspected is called an informal confession. It may be oral or written –
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Arogundade v. State. All confessions made to the police or other law enforcement
officers qualify as informal confessions.
Confession obtained from a Defendant through an Interpreter
In Bello v. State, the court held that evidence of an IPO about confession of a crime made by an
accused person in a language the IPO does not understand but relayed to him by an interpreter
amounts to inadmissible hearsay evidence where the interpreter is not called as a witness.
Meanwhile, S17(3) ACJA provides that where a suspect does not understand or speak or write in
the English language, an interpreter shall record and read over the statement to the suspect to his
understanding and the suspect shall then endorse the statement as having been made by him, and
the interpreter shall attest to the making of the statement.
Admissibility of Confessional Statements
The following principles are applicable in admissibility of confessional statements:
1. The statement must admit or acknowledge that the maker of the statement committed the
offence alleged against him.
2. The confession must be direct, positive and unequivocal as to the guilt of the accused
person – State v. Enabosi.
3. The statement must contain admission of both the actus reus and mens rea (where mens
rea is required) – Omisade v Queen.
4. The confession must have been made voluntary – Section 29 Evidence Act 2011.
5. The confession of an accused is admissible only against him and not against any other
person – Mbang v. State. However, the confession may be admissible against a co-
accused where the co-accused admits it by words or through conduct.
What then is the relevance and implication of SS 28 and 29 EA, 2011 to the recording of a
suspect’s statement as highlighted earlier?
The implication of see ss -28 & 29 is that any statement which is not relevant and voluntarily
made to the satisfaction of the court is not admissible. State v Ibrahim (2019) LPELR-47548
(SC); Agoola v State (2015) All FWLR (pt. 795) 197
It should also be noted that admissibility is governed by the provision of evidence act- Usen v
State (2012) lpelr-20063 (ca)
How does one challenge a confessional statement?
It is either that:
55
1. he denies ever making the statement (Retraction) or

2. he made the statement but not voluntarily
Retraction
An accused person may object to a statement on the ground that it was not made by him. This is
call retraction – Sule v. State. Retraction may arise where:
1. The statement is not signed;

2. The defendant denies that the signature belongs to him;
3. The accused alleges that the statement was not properly or accurately recorded (where the
accused did not write by himself);
4. The accused alleges that he did not make the oral confession accredited to him;
5. The accused alleges that his written statement was altered by someone;
6. The accused alleges that he did not make the statement;
7. The accused alleges that he was unsettled in mind at the time he made the statement; or
8. The accused alleges that his statement was involuntary but fails to raise objection when it
is tendered. At this stage, the court will deem the statement as tantamount to a denial as
such belated retraction would not affect the voluntariness of the statement – Ode v. State.
Where there is retraction, it does not affect the admissibility of the statement. The Judge may
admit the confessional statement when same is tendered and then, decide later at the end of the
case whether the accused made the statement and to ascribe probative value to same – Oguno v.
State.
However, it will be desirable to have a corroborative evidence, no matter how slight before
convicting on such retracted confessional statement that was admitted – Mohammed v. State.
Thus, the court must scrutinize the statement to test its truthfulness or otherwise in line with
other available evidence outside the statement in order to see whether they confirm, support or
correspond with the statement.
The appropriate time to retract the confession is when it is sought to be tendered by the
prosecution so that the court will note that the statement was denied by the defendant and will be
more ready to entertain evidence of the retraction in the course of the defence. Any objection
coming in the course of the defence (long after its admission and closure of the prosecution’s
case) will be regarded as an afterthought – Usung v. State.
Involuntariness or Oppression (Trial within Trial)
By virtue of S29(2) (a) & (b) EA, the Court shall not admit a confession obtained by oppression
or in consequence of anything said or done which will likely in the circumstance make such
confession unreliable, except the prosecution proves to the court beyond reasonable doubt that
56
the confession was not obtained in such a manner. S29(3) EA went further and stated that the
court can also suo motu require the prosecution to prove that the confession was not obtained in
an oppressive manner. Where the court out of inadvertence or any other reason fail to fulfil this
obligation, the defence counsel is required to object to such confession being tendered. S29(5)
EA defines “oppression” to include torture, inhuman or degrading treatment, and the use of
threat of violence whether or not amounting to torture.
An accused person may challenge a confessional statement on the allegation of existence of

(inducement, threat or promise) properly proved to emanate from a person before whom a
confession is being taken. Where any of the factors is shown to exist before or in the course of
obtaining a witness statement, it can be said that the statement is obtained in a way or manner
considered oppressive.
The appropriate stage to raise an objection to a confessional statement is when it is about to be

tendered in evidence. It must be made timeously. Any belated denial of the voluntariness of a
confessional statement or its retraction is a mere after thought – Usung v. State.
Where there is an objection as to the voluntariness of the confessional statement, the court must
stop further proceedings and determine the question of voluntariness of the confession before
taking further step by way of admitting or rejecting it – Lateef v. FRN. The procedure whereby
the court determines the voluntariness or otherwise of a confessional statement is known as “trial
within trial”.
Do these 2 instances have the same legal implication? no.
The first instance is called retraction and the legal implication is that if one raises an objection
and says that “I did not make the statement”, the court will admit the statement and later, based
on evidence, determine whether he made it or not. - Ogunye v State (1999) LPELR-2356 (SC)
However, the second instance the person is saying that he was compelled or induced (by
oppression, etc) to make the statement. in that case, a trial within trial would be conducted- see
Yusuf & Anor v State (2019) 46945 (SC); Ofordike v State (2019) LPELR-46411 (SC)
What is trial within trial and how is it done? and what happens when there is a trial within
trial?
In C.O.P v Alozie (2017) LPELR-41983 (SC), it was held that a trial within trial ought to be
conducted in this circumstance. The procedure for conducting a trial within trial as was held in
Babarinde v. State is as follows:
1. The court halts the main proceedings;

2. The court informs the parties that there is going to be a trial within trial to determine the
voluntariness of the statement sought to be tendered;
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3. The court call on the prosecution to call witnesses to prove voluntariness. The burden is
on the prosecution to prove that it was free and voluntary;
4. Each witness called is sworn or re-sworn as the case may be;
5. Each witness so called is liable to be examined in chief, cross-examined and re-examined
if need be;
6. Exhibits may be tendered;
7. After all prosecution witnesses have testified, the court calls on the defence to call its
own witness if any to refute the position of the prosecution;
8. Defence witnesses are examined in chief, cross-examined and re-examined if need be;
9. Parties are allowed to address the court based on the evidence;
10. The court then delivers a ruling either admitting the statement or rejecting same;
11. Whichever way the ruling goes, the main trial then resumes unless the court suo motu or
on the application of parties, adjourns the matter to another day for continuation of
hearing – Babarinde v. State.
Conflicting Confessions and Confession Implicating a Co-Accused
1. Conflicting Confessions: where the accused makes two voluntary confessional statements
with full knowledge of what he was doing, it has been held that the trial judge will be right to
take the one that is less favourable to the accused, particularly when that one is the first in time.
The second statement will be taken to be an afterthought – Edoko v State.
2. Confession Implicating Co-Accused Persons: confession made by one accused person is a

relevant fact against the person making it only and not against any other person the confession
may implicate – Adebowale v. State. The rationale for this rule is that the marker may have his
own motives for implicating any other person who may not have opportunity of refuting what
has been alleged against him. However, the exceptions to this rule are –
a) Where the accused goes into the witness box and repeats on oath, the contents of his
statement to the police, they become evidence for all purposes, admissible in law and can
be acted upon by the court against the co-accused – Gbohor v State.
b) Where the co-accused voluntarily adopts a confessional statement made by the accused –
State v. Gwangwan. The adoption can be done expressly or through conduct e.g., refusal
to deny the allegation when the confessional statement was brought to him either before
or at the trial.
c) Where the confessional statement by the accused against a co-accused is corroborated by
other evidence, a court can rely on it – Gbohor v. State.
However-take note of S 38(7) ACJL KANO which states that ruling on objection to the
admissibility of a confessional statement shall be recorded and shall be ruled upon while
delivering judgement or while delivering ruling in no case submission
58
JUDGES’ RULES
• what is it?
• legal effect of compliance or otherwise with the judges’ rules?
Judges’ rules are administrative rules formulated by English judges in 1912
The whole essence of the rules is to guide policemen while taking statements from suspects.
They have no force of law. R V VOISON (1982) KB 531; STATE V EDEKERE & ORS
(1981) 2 NCR 335; OLADIPOPU V THE STATE (2013) 1 NWLR (PT. 1334) 68
The Rules
1. Rule One – Questioning Anyone to Obtain Useful Information: if a police officer is trying
to discover whether a crime has been committed and the perpetrator of such a crime, he is
entitled to question anybody who he thinks that useful information may be obtained. This is so
whether or not the person concerned has been taken into custody so long as he has not been
charged with the offence or informed that he may be prosecuted for it.
2. Rule Two – Cautioning Suspect before Asking Questions Relating to the Offence: if the
police officer has evidence which gives reasonable grounds for believing that a person has
committed a crime, he shall caution that person or cause him to be cautioned before putting to
him any questions, relating to that offence as follows: “You are not obliged to say anything
unless you wish to do so but what you say may be put into writing and given in evidence.”
3. Rule Three –
(a) Record of Questioning & Statement: after being cautioned, when a person being
questioned makes a statement or elects to make a statement, a record of the time a place at which
any of such questioning or statement began an ended and of the person(s) present shall be kept.
(b) Cautioning where a Person may be prosecuted for or charged with an Offence: where a
person may be prosecuted for an offence or charged with an offence, he shall be cautioned as
follows: “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.”
The rule for caution before taking a statement from a suspect or an accused outside the court has
been extended to include posing for a photograph. Thus, in Ugama v. Queen (1959) 4 FSC, 218,
the court held that where a police officer wants a suspect to pose for photograph which is likely
to be used in evidence against him, he must be informed of such and cautioned that he is not
under obligation to pose for the photograph.
59
(c) Prohibition of Questions Relating to the Offence after the Accused has been Charged or
Informed that he may be Prosecuted: questions relating to the offence should not be put to the
accused after he has been charged or informed that he may be prosecuted except for the purpose
of preventing or minimizing harm or loss to some other person or the public or for clearing up an
ambiguity in a previous answer or statement and should be stated in the following terms: “I wish
to put some questions to you about the offence with which you have been charged (or for an
offence for which you may be prosecuted). You are not obliged to answer any of these questions
but if you do, the questions and answers will be taken down in writing and be given in evidence.”
4. Rule Four –
(a) Contemporaneous Record of Questions and Answers: questions asked and answers given
relating to the offence must at the same time, be recorded in full and the record signed by that
person or, if he refuses, by the interrogating officer.
(b) Written Statements by Suspect: if a person says that he wants to make a statement, he shall
be told that it is intended to make a written record of what he says. He shall always be asked
whether he wishes to write down himself what he wants to say; if the suspect is to write the
statement himself, he shall be asked to write out and sign the statement below before writing
what he wants to say: “I make this statement of my own free will. I have been told that I need not
say anything unless I wish to do and that whatever I say may be given in evidence.”
A witness writing his own statement shall be allowed to do so on his own without any prompting
except that he may be told of matters that are material.
(c) Written Statements on Behalf of the Suspect: if the suspect says that he cannot write or
that he would like someone to write it for him, a police officer may offer to write the statement
for him. If he accepts the offer, the officer shall before starting ask the person making the
statement to sign or make his mark to the following: “I wish to make statement. I want someone
to write down what I say. I have been told that I need not say anything unless I wish to do and
that whatever I say may be given in evidence.”
The police officer is to take down the exact words of the suspect without putting any questions
other than such as may be needed to make the statement coherent, intelligible and relevant to the
material matters. He shall not prompt him.
When the police officer has finished writing the statement, the person making it shall be asked to
read it and to make any corrections, alterations or addition he wishes. When he has finished
reading it, he shall be asked to write and sign the following: “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.”
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(d) Refusal of Suspect to Sign or Read the Statement Written on His Behalf: If the suspect
who has made a statement refuses to write the above-mentioned certificate at the end of it or sign
it, the senior police officer present is to write on the statement and in the presence of the person
making it, what transpired. If the person making the statement cannot read or refuses to read it,
the officer who has written it for him shall read it over to him and ask him whether he would like
to alter or add anything and to put his signature or make his mark at the end. The police officer
shall then certify on the statement itself what he has done.
5. Rule Five – Written Statement made by Co-Suspect: if at any time after a person has been
charged with or informed that he may be prosecuted for an offence, a police officer wishes to
bring to the notice of that person any written statement made by another person who in respect of
the same offence has also been charged or informed that he may be prosecuted, he shall hand to
that person a true copy of that written statement, but nothing shall be said or done to invite any
comment. Provided that when the person charged is an illiterate the statement may be read over
or interpreted to him apart by some other person than a police man. Anything said to such reader
by the person charged when the statement is read shall not be admissible in evidence against
him. If the person says that he would like to make a statement or starts to say something in reply,
he shall at once be cautioned.
6. Rule Six – Compliance with Rules by Persons Other Police Officers Charged with Duty
of Investigating Offences: persons other than police officers charged with the duty of
investigating offences or charging offenders should endeavour to comply with these rules. Thus,
every law enforcement officer involved in criminal investigation (EFCC, ICPC, NAFDAC,
Custom, etc.) and who takes statements from suspects is enjoyed to observe the rules – Dairo v.
FRN.
Effect of Non-Compliance with Rules
1. Judges’ Rules: Mere non observance of the Judges rules would not render a confession
inadmissible if the court is otherwise satisfied that the statement in question was voluntarily
made – R v. Voison. They rules have no force of law but its non-compliance may lead to
rejection of the statement by the court where the non-compliance affected the voluntary nature of
the confession – State v. Edekere (1981) 2 NCR 335. However, where the non-compliance did
not affect the voluntary nature of the confession, it will be admissible. In the same vein, the court
in Usman v. State, held that breaches of the Judge’s rules do not render a document
inadmissible. At best, such breaches might only affect the weight the court attaches to the
statement and certainly not its admissibility. Thus, the admissibility of a confessional statement
depends not on whether there was compliance with the Judges’ rules but whether it was
voluntarily made.
2. Confirmation before a Superior Police Officer: Just like the effect of non-compliance with
the Judges’ rules, where the statement is not taken before a superior police officer for
confirmation of its voluntariness, it does not ipso facto render the confession inadmissible –
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Osisugo v. State (2016) All FWLR (Pt. 792) 1602. Although the usual practice is to get the
suspect or accused person to sign the self-incriminating statement again after it has been read to
him before a superior police officer, it has been held that failure to re-sign would not affect its
admissibility – Oke v. The Republic (1968) NMLR 69.
ALIBI
• what is it?
• when to properly raise?
• when to investigate?
• when not to investigate?
• what are the duties of:
o the suspect
o the prosecution &,
o the court
• what is the effect of a confessional statement on plea of alibi?
Alibi means “elsewhere”. it is a defence where an accused person claimed to the police that he
was at a place other than the place where the prosecution alleges that he was at the time of the
commission of the offence charged thereby making it impossible for him to have committed or
participated in the commission of the offence. See Shehu vs. The State (2010) All FWLR (pt.
523) p. 184 at 1858; ESENE VS THE STATE (2017) 7 scm p. 88 at p. 94 ratio 10.
Where an accused/defendant wants to rely on an alibi as a defence, he must raise the issue to the
police immediately after arrest or so soon thereafter. That is to say, he must inform the police at
the earliest opportunity of his where about at the time the offence was committed so as to give
the police the opportunity to investigate the alibi. NDIDI VS THE STATE (2007) 13 NWLR.
(pt. 1052) at 651.; OSUAGWU VS THE STATE (2013) 1-2 S.C. (pt. 1347) p. 37 at 65.
The burden is on the accused person to give detailed evidence of the place he was, the person or
persons he was with, the time and possibly what he was doing there at the material time. before
the police would be bound to investigate it. See OSUAGWU VS THE STATE (supra).
Where Alibi need not be Investigated
(a) Fixing the Accused at the Scene of the Crime: if the prosecution succeeds in fixing the
accused at the scene of the crime by adducing sufficient acceptable evidence, his alibi is thereby
logically and physically demolished – Archibong v. State (2006) All FWLR (Pt. 323) 1747 at
1785
(b) Vague Accounts: where the defence of alibi consists of vague accounts which are simply
placed before the courts as make-believe of plea of that defence which are completely devoid of
62
material facts worthy of investigation, there would be no need for investigation – Saka v State
(2006) All FWLR (Pt. 335) 148 at 163.
(c) Lack of Sufficient Particulars: the plea of alibi will only be taken seriously where the
accused himself has properly raised the defence worthy of investigation by the police. Thus,
there will be no duty to investigate where the accused did not furnish the police with sufficient
particulars – Mohammed v. State.
(d) Confession: where the accused person raises the plea of alibi but also made a voluntary
confession that he committed the crime, there will be no duty to investigate the alibi – Ogoala v.
State.
EFFECT:
Failure to investigate the alibi where it is properly raised is fatal to the case of the prosecution.
This is so because the defence succeeds where the trial court is satisfied that it is probable that
the accused was not at the scene of the crime on the day the crime was committed. See ESENE
VS. THE STATE (supra). SHEHU VS. THE STATE (supra).; ALMU VS THE STATE
(2009) 10 N.W.L.R. (pt. 1148) p. 31.
However, where the accused person is directly fixed at the scene of the crime his alibi will not
succeed. in other words, where there is direct, positive and unequivocal evidence which fixed
the accused at the scene of the crime at the time the offence was committed, his plea of alibi will
not stand. the prosecution is therefore relieved of the duty of calling any further evidence to
disprove the alibi raised. See ALMU VS. THE STATE (supra).
So also, where there is a valid confessional statement
IDENTIFICATION PARADE
• when necessary?
• when not necessary?
• how to conduct identification parade?
• who can be made to identify a culprit?
• rights of a suspect in an identification parade
• venue/place of the conduct of identification parade
Where the identity of the person who commits an offence is in doubt, the police must conduct an
investigation for the purpose of identifying the person who commits the offence.
Identification means a whole series of facts and circumstances by which a person may be
associated with the commission of the offence charged. It may consist of finger prints,
63
handwriting, palm prints, voice, photographs, recollection of the features of the culprit by a
witness who saw him in the commission of the offence in issue, identification parade, or
combination of two or more of the above.
When identification parade becomes relevant:
As a method of identifying the author of a crime, identification parade becomes relevant and
necessary only in a situation where the identity of the person responsible for the commission of
an offence is in doubt. This normally arises where the person who committed the offence was
not arrested at the scene of the crime and has not been known by the victim or any other witness
previously and the victim’s or witness’ encounter with the suspect was only in the course of the
commission of the offence. in such a situation, the identity of the person becomes a fact in issue
or relevant fact. See. S. 7(C) EA. OLALEKAN VS. THE STATE (2002) F.W.L.R. (PT. 91) P.
1605.; OSUAGWU VS THE STATE (2013) 1-2 S.C. P. (PT. 1) P. 37.
In deciding the credibility of the evidence of identity, the court takes the following factors
into consideration:
i. previous contact of the witness with the suspect and the circumstance in which the eye
witness saw the suspect.
ii. the length of time the witness saw the suspect.
iii. the opportunity of close observation. see LAWALLI (DANCHINA) VS THE STATE
(2019) 2 scm p. 46 at 50 ratio 9
iv. the lightening condition. see THOMAS VS. THE STATE (2017)3 scm p. 168 at 170.
v. whether the witness had informed the police at the earliest opportunity of the identity of
the suspect and had given the features of the accused observed by him at the time of their
encounter. see EMENEGOR VS. THE STATE (2010) All F.W.L.R. (pt. 511) p. 884.
When identification parade not required:
Identification parade is not necessary:
i. where there is clear and uncontradicted eye witness account of the identity of the person
who allegedly committed the crime Ibrahim v. State
ii. where a witness or the victim knew the suspect prior to the commission of the offence
and has recognised him at the time of the commission of the offence.
iii. where there are convincing, cogent and compelling evidence linking the suspect to the
offence. see OLALEKAN VS. THE STATE (supra)
iv. Where the circumstances of the case has sufficiently and irresistibly married the offender
to the crime and the crime scene – Otti v. State.
Identification parade rules and procedure.

64
1. It is usually conducted at the police station under the leadership of the officer in charge of
the station.
2. The suspect should be line up among at least 8 other persons/suspects of similar features
such as height, weight, colour, age, etc. and the victim or witness is asked to identify the
suspect among them without aid.
3. The suspect shall not be allowed to be seen by the identifying witness prior to the parade
either physically, via photograph or video etc.
4. The witness must not be aided in the identification and should not be given an advance
knowledge of how the suspect look like before the parade. see IKEMPSON VS THE
STATE (1989) 3 N.W.L.R. (pt. 110) p. 455.
5. The suspect should be allowed to choose his position in the parade and should be allowed
to change position after each witness had left
6. The identifying witness will be instructed in audible voice to identify the suspect by
touching the person identified.
7. A photograph shall be taken when the parade is formed, when the suspect takes his
position in the line, and when the witness identifies a suspect by placing his hands on the
shoulder and when the suspect changes his position.
8. There should be no whispering and any communication between the parade and the
witness must be in audible voice.
9. At the end of the parade suspect should be asked whether he is satisfied with the
procedure made and his reply should be recorded in the station diary.
10. Finally form D50 shall be completed in respect of each witness and the report of the
parade made in form D49 and entered in the station diary.
Handling of exhibits:
Exhibits refers to items seized by police officers in the course of a search or other criminal
investigations. They are items which the police intend to use at the trial of the suspect (when the
decision is finally taken to prosecute). S10(1) ACJA provides that a police officer making an
arrest or to whom a private person hands over a suspect, shall immediately record information
about the arrested suspect and an inventory of all items or properties recovered from the suspect
which shall be signed by the investigating police officer.
• Items seized in the cause of investigation and which are relevant for the effective
prosecution of the case against a suspect are called exhibits.
• They shall be kept with the exhibit keeper at the exhibit room designed at the station for
that purpose.
• The exhibit keeper shall mark, number and register the exhibit in the exhibit register for
ease of identification and avoiding the possibility of mixing it up with other exhibits that
are not connected with the case to which it relates.
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• The exhibit shall be tendered in court through the exhibit keeper.
How Exhibits are kept
1. Exhibit List: before the police keep these exhibits, they make the exhibit list which
usually chronicles the items seized from a particular suspect of from different suspects in
respect of the same case.
2. Exhibit Register: at the station, the list of all exhibits in the custody of the police in a
particular station or division is then recorded in the exhibit register.
3. Exhibit Keeper: the exhibit keeper then keeps custody of all items in the custody of the
police. He transfers all exhibits to the exhibit room.
4. Exhibit Room: all items in relation to the cases handled are kept in the exhibit room
where only designated officers are allowed entry to avoid unauthorized interference.
Where exhibits kept in the exhibit room are to be tendered in court, they are to be taken
out by the appropriate officer who has proper custody of the exhibits.
5. Description Name and Number for Purposes of Identification: in keeping these
exhibits, they are properly described in the register and given a name or number for
purposes of identification.
6. Description by Real Name When Tendered in Court: at the end of the investigation, if
any of these items is to be tendered in court, it is described to the court not by the exhibit
number given it by the police but by the exhibit’s real name and the court would if it
admits it, give it a new name e.g. Exhibit A1.
7. Laboratory or Forensic Test: where an item seized by the police requires going for
laboratory or forensic test, the item is usually packed in an exhibit pouch and then sent to
the laboratory under security.
8. Custody of Exhibits: Exhibits remain in police custody until the end of investigation or
case. However, S10(4) ACJA provides that a police officer may, upon request by the
owner or a party interested, release the property on bond pending the arraignment of the
arrested suspect before the court.
Police bail
• It is a temporary release of a suspect on bond or self-recognizance pending the conclusion

of investigation and or arraignment before a court of law.
• The power of the police to grant bail is derived from the provisions of-S. 35 (4) & (5)
CFRN’99; S. 61, 62 & 63 PA; SS. 30 & 31 ACJA
• Police has no power to release a suspect in capital offences and where an arrest was made
under a warrant of arrest except if the warrant is endorsed with an order for bail.
66
Procedure of application:
• No specific procedure is provided by the law

• In practice it is usually applied for through a formal letter addressed to the officer in
charge of the station where the suspect is detained by a person who is ready to stand as
surety for the suspect.
• In the letter the surety undertakes to produce the suspect at the time and place required.
• The letter may be written by a counsel for the surety.
• Counsel must not sign bail bond. but may certify the surety as a fit and proper person to
stand as surety for the suspect.
• In some police stations, a bail may be applied for by filling a printed form prepared by
the police for that purpose.
• An oral application may also be entertained.
• Police may release on bail if satisfied that the proper investigation of the case will not be
prejudiced by the grant of the bail and no risk of the suspect escaping justice exists.
Remedies available where bail is refused
• application for judicial review such as for an order of habeas corpus-contained in the
high court rules
• application for the enforcement of fundamental human rights under cap 4 of the
constitution and FREP rules, 2009
• application for bail at the high court under S. 30 ACJA, 2015
• Application for Enforcement of Fundamental Rights
Fundamental Rights refer to any of the rights provided for in Chapter IV CFRN and includes
any of the rights stipulated in the African Charter on Human and Peoples Right (Ratification
and Enforcement) Act - Order 1 Rule 2 of Fundamental Rights (Enforcement Procedure)
Rules 2009. The rules set out the practice and procedure for the litigation, regulation and
prosecution of all matters relating to the enforcements of fundamental rights of citizens by the
courts, pursuant to the provisions of chapter IV of the constitution.
Thus, where a suspect has been refused bail by the police, he can make an application via any
originating process for the enforcement of his fundamental right to personal liberty.
The persons who can institute action for enforcement of fundamental rights can be: anyone
acting in his own interest; anyone acting on behalf of another person; anyone acting as a member
of, or in the interest of a group or class of persons; anyone acting in the public interest; or
association acting in the interest of its members or other individuals.
67
Another option available to an action person who has been refused bail by the Police is to
approach a Court to grant him bail.
• Habeas Corpus Proceedings: Writ of Habeas Corpus
This is a Latin word, which means “that you have the body”. This remedy is to secure the release
or liberty of the suspect, whose right to personal liberty has been lawfully infringed on, and
which is better explained by the more elaborate Latin expression habeas corpus ad subjiciendum
meaning a writ directed to the person detaining another, and commanding him to produce the
body of the prisoner, or person detained. Release from unlawful imprisonment (bring the body)
e.g., know they have taken the person away but not sure where he is being imprisoned.
Habeas corpus proceedings are usually governed by State Laws and an application herein is
made ex-parte accompanied by a deposition on oath, stating the facts and circumstances of the
wrongful detention, necessitating the filing of the application.
In Dele Giwa v. Inspector General of Police (Unreported Suit No FHC/12C/83), the court
awarded monetary compensation to the applicant who had been illegally detained by the police
and a public apology was also offered to the applicant. Also, in Minister of Internal Affairs v.
Shugaba (1982) 3 N.C.L.R. 915 at 928, the Supreme Court stated as follows: in cases involving
an infraction of fundamental rights of a citizen, the court ought to award such damages as would
serve as a deterrent against naked, arrogant, arbitrary and oppressive abuse of power. However,
such award must not be excessive.
• Application to the Magistrate
In Lagos State, the suspect may apply to a Magistrate Court for an order for his production in
Court. Note if suspect does not fulfil conditions of bail, he cannot just run to court to grant bail
as police will state that bail has been granted upon certain provisions.
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V. Sample Draft of Police Bail Application
C. O. AGBATA & CO
BARRISTERS AND SOLICITORS
NO 15 SHEVRON DRIVE
IKOYI, LAGOS STATE.
(coagbata@coagbata.com)
Our Ref: Your Ref:
15th August, 2022
The Divisional Police Officer,

Police Divisional Headquarters,
Lagos,
Lagos State.
Sir,
APPLICATION FOR BAIL
We are solicitors to Mrs. Johnson Our Client, of No.5 Johnson Street, Ikoyi, Lagos State who is
currently under arrest and detention at your station.
We apply for her bail pending you’re the arraignment of our client. Our client pledges to appear
at the station anytime requested by you.
We recommend Mr Peters Dibia of No. 15 Broad Street Lagos Island, Lagos State, an in-law to
our client, as a surety for our client’s bail. He is available and willing to take the suspect on bail
and promises to fulfil all the bail conditions.
Thanks for the anticipated cooperation.
Yours faithfully,
………………………….
C. O. Agbata Esq.
(Principal Partner)
For: C.O. Agbata & Co.
69
PRE-CLASS
1. Ibrahim Uche and Chinedu Okiki are both businessmen with shops at the Blessed Assurance
Plaza, Wuse 2 Abuja. The two have had cordial relationship since they knew each other. Trouble
however started when Ibrahim borrowed some money from Chinedu and could not pay back on
time. After asking for the payment of the money incessantly without success, Chinedu decided to
report the matter to the police. Corporal Sanja was deployed to arrest Ibrahim. At the police
station he was detained for two weeks, tortured and refused to see his family and Lawyer. After
three days of staying without food, he wrote a statement confessing to stealing the sum of 2.5
Million Naira from the safe in Chinedu's shop.
Answer the following questions:
a. comment on the investigative power of the police in this case
b. comment on the detention of Ibrahim for two weeks
c. comment of Ibrahim's right that were breached if any while at the police station
d. comment on the confessional statement made by Ibrahim.
e. Draft the bail application for Ibrahim
2. The residents of Abule Egba have been terrorized for the past One Month by a gang of
hoodlums who call themselves One Million Boys. Luck, however ran out on them last week
when the vigilante group majorly comprising of young men from the neighborhood decided to
repel them. In the process, so many of them ran away but three of them Banjo, Sule and
Ugochukwu were arrested and taken to the police station. At the police station they were stripped
naked and severely beaten. During interrogation, they confessed to the commission of many
crimes within the last one month in the area and they also told the police where to get the leader
of the gang named Moore, who led the operation on the day they were arrested.
The police immediately went to the house described and saw Moore sitting outside with some
boys drinking local Gin. He was immediately arrested. At the police station he denied
participating in the operation and stated that on that day he was at Ibadan where he went to see a
friend, he however, did not mention the name of the friend, he was ignored. The following day,
an Identification parade was conducted where the four of them were lined up with two other
inmates. Last week Friday, they were arraigned before the Chief Magistrate on a three count
charge of Rape, Assault and Armed Robbery. At the court, the Magistrate was not happy that
they are not represented by Counsel, he therefore adjourned the case to enable them access legal
assistance from the Legal Aid Council.
70
a. Comment on the treatment of the suspects at the police station
b. what was the need for the interrogation by the police
c. Comment on the alibi raised by Moore and the Police reaction
d. comment on the propriety or otherwise of the Identification Parade conducted in relation to;
i. the necessity
ii the procedure
e. What is your view on the Magistrate's decision to refer them to the Legal Aid Council for
assistance.
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WEEK 6 – JURISDICTION AND VENUE OF CRIMINAL TRIALS
OUTCOMES
1. Discuss and explain the various courts of criminal jurisdiction.

2. Discuss the criminal jurisdiction of courts and the venue of criminal trials.
3. Explain the jurisdiction and venue of criminal trials of the International Criminal Court.
CONTENTS
1. Jurisdiction and venue of courts of General Criminal jurisdictions

2. Jurisdiction of courts of special criminal jurisdiction-FHC, NIC, Courts-Martial, Juvenile
Courts, and Coroner’s Court.
3. Jurisdiction and venue of International Criminal Court
ACTIVITY BEFORE CLASS
Students are to read in advance various courts of criminal jurisdiction both general and special in
the north and south and the International Criminal Court.
ACTIVITIES IN CLASS
1. In class tutor gives an overview of the various courts of criminal jurisdiction. 30 minutes
2. Students are grouped to discuss and identify courts of general criminal jurisdiction and
the scope of their jurisdiction based on the assignment given in Week 2 – 45 minutes
3. Sample presentations are made and discussions follows at plenary 45 minutes
15 MINUTES BREAK
4. Students are grouped to discuss the various courts of special criminal jurisdiction -30
minutes
5. Discussion follows with sample presentations-45 minutes
6. Students are grouped to discuss the jurisdiction of the international criminal court- 30
minutes
7. Sample presentations are made and discussions follows-30 minutes
Feed back and assessment-30 minutes
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JURISDICTION AND VENUE OF CRIMINAL TRIALS
What is jurisdiction?
Jurisdiction is the authority of Court to decide matters that are litigated before it.
Jurisdiction is fundamental in any proceedings as it determines the competence and capability of

the Court to inquire into any case that is brought before it. The source of a court’s jurisdiction is
the Constitution or statutes. Every court is bound by the provisions of the Constitution and
statutes vesting jurisdiction in them. See Nyame v FRN, Madukolu v Nkemdilim
According to the SC in Madukolu v Nkemdilim, Nnakwe v The State, Onwudiwe v FRN, in

determining jurisdiction, three things are considered:
I. Whether the court is properly constituted with regards to numbers and qualifications of its
members;
II. Whether the subject matter of the case is within the competence of the court and that no
feature exists to prevent the court from exercising its power and decision over the case;
III. Whether the case before the court is initiated by due process of law upon the fulfilment of
any condition precedent to the exercise of its jurisdiction.
What determines the jurisdiction of court?
• Law/statute/constitution
• Parties
• Territory
• Offences
• Punishment
See: Ibori v. FRN (2009) ALL FWLR (Pt 487) 159 at 179, Patrick Njovens v. The State
(1973) NNLR 76.
SOURCES OF COURTS’ JURISDICTION
• Jurisdiction of each Court in Nigeria is provided for in the Constitution or in a statute.

Every Court is bound to it and can’t go outside the jurisdiction vested in it.
• It is not deemed or inherent.
JURISDICTIONAL CHALLENGES IN CRIMINAL TRIALS
The question of jurisdiction arises in criminal proceedings at three different levels, these are:
73
i. Territorial jurisdiction;
ii. Substantive jurisdiction (subject matter) and
iii. Jurisdiction over persons.
TERRITORIAL JURISDICTION: this relates to instances where a crime is partially or wholly

committed in one state but the offender is arrested in another state OR where an element or some
elements of a crime are committed in two different jurisdictions OR where the effect or result of
an offence commenced in one state occurs in another state.
In the above scenario, it is settled law that both states will have jurisdiction. In Osoba v Queen
(1961) 1 NLR 1, the MD of a Nigerian bank in Lagos which sent a telegram to Australia and
New Zealand and had some fraudulent transactions carried out in London, the SC held that his
trial in Lagos was correct as the Lagos court had jurisdiction to try, the action haven commenced
in Lagos through the telegram that was sent from Lagos. Also, in Okoro v Attorney-General
of Western Nigeria (1965) 1 All NLR 283, the court held that where an offence occurs partly in
one region and partly in another region, the courts in both regions will have jurisdiction. See also
Njovens v. The State [1973] NNLR 76, [1973] 1 NMLR 331.
Also, in the case of Dariye v. FRN [2015] All FWLR (Pt. 774) 97 the court held that where
constituent elements of an offence occur in different jurisdictions, the appropriate means to
determines which court has jurisdiction to try the accused is to identify what element of the
offence in the proof occurred where, any of the jurisdiction in which an element occurs has
territorial jurisdiction to try the accused.
Where the offence is a federal offence and triable by the Federal High Court, the Federal High
Court is considered to be of nationwide jurisdiction S. 19 (1) FHCA, therefore where such an
offence is committed in Lagos State, the defendant can be tried at the Federal High Court in
Maiduguri see Abiola v FRN. What exist are judicial divisions and not jurisdictions, thus FHC
has nationwide jurisdiction.
However, in the case of Ibori v FRN [2009] All FWLR (Pt. 487) 159 at 179, (Delta to
Kaduna) Hon. Justice Shuaibu. CA. The Court of Appeal held that to take the accused person
from Delta State to Kaduna State for trial amounted to forum shopping. Similar decision was
reached by the SC in the recent 2021 case of Belgore v FRN, it was held that since the offence
was committed in Kwara State, Lagos was the wrong judicial division to try the appellant.
Whether this is a sound legal reasoning is subjective. Although, the difference between the latter
cases and the former is that the latter were wholly committed in a forum different from the one
wherein they were tried. See generally, SS 93 and 96 ACJA below the equivalents are in SS58
and 60 ACJL Lagos and SS111 and 113 ACJL Kano.
74
NB: a party may apply to the Chief Judge of FHC to transfer a matter from one division to
another for convenience purpose. S. 19(2) FHCA.
VENUE OF CRIMINAL TRIAL
The venue of trial is very important. S93 ACJA:
S93(1) An offence shall ordinarily be inquired into and tried by a court within the local limits of
whose jurisdiction:
a) the offence was wholly or in part committed, or some act forming part of the offence was
done;
b) the consequence of the offence has ensued;
c) an offence was committed by reference to which the offence is denied; or
d) a person against whom, or property in respect of which, the offence was committed is
found, having been transported there by the suspect or by a person knowing of the
offence.
(2) A criminal charge shall be filed and tried in the division where the alleged offence was
committed unless it can be shown that it is convenient to do otherwise for security reasons.
Offence at sea or outside of Nigeria
S94 ACJA: An offence committed at sea or outside the territory of Nigeria, may be tried or
inquired into at any place in Nigeria to which the suspect is first brought, or to which he may be
taken thereafter.
Offence committed on a journey
S95 ACJA: An offence committed while the suspect is in the course of performing a journey or
voyage may be tried or inquired into by a court in the State or division or district of whose
jurisdiction the suspect or the person against whom or the thing in respect of which the offence
was committed resides, is or passed in the course of that journey or voyage.
Offence commenced and completed in different States
S96 ACJA: Where an offence:
a) is commenced in a State and completed in another State, or

b) is completed in the Federal Capital Territory, Abuja after being commenced in another
State,
75
the suspect may be dealt with, tried and punished as if the offence had been actually or wholly
committed in any of the States, or Federal Capital Territory, Abuja.
Every Court in Nigeria has power to try both civil and criminal matter except for Tribunal
established for specific purpose.
The jurisdiction of Court to entertain criminal matter may be loosely classified into two:
1. Court of General Criminal Jurisdiction

2. Court of Special Criminal Jurisdiction
COURTS OF GENERAL CRIMINAL JURISDICTION IN THE SOUTHERN STATES

OF NIGERIA
CUSTOMARY COURT
• Customary courts can be found in all the Southern States of Nigeria;

• The Customary Court was formerly known as Native courts in the southern states which
can be found in the former Western Nigeria and Eastern Nigeria.
• No customary court in Lagos State because that was the then Federal Capital.
• It became customary court by virtue of the Customary Courts Law of Western Nigeria
1959 and Eastern Nigeria 1956.
Jurisdiction: S41 and Part2 to the 1st Schedule of the Customary Court Law of Lagos
State, 2011.
Constituted by the Customary Court Law of the Lagos State 2011; for the trial of
i. offences against local authority bye-laws or S41 of the Law, Part 2 to the First
Schedule
ii. where jurisdiction is expressly conferred upon it; S41 of the Law, Part 2 to the First
Schedule and
iii. contempt committed in the face of the Court S41 of the Law, Part 2 to the First
Schedule.
The maximum punishment it can impose in Lagos State is 14 days imprisonment or N5k fine.
Section 41, 1st Schedule, Part 2, Customary Courts Law, Lagos 2011.
MAGISTRATES’ COURTS: 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
76
They can try all offences except capital offence S29 MCL.
S29 MCL on Criminal Jurisdiction provides;
S29. (1) Subject to any restrictions or conditions prescribed by jurisdiction of the Constitution or
by any other law, Magistrates shall have jurisdiction and powers in respect of the summary trial
and determination of criminal cases as set out in this Section.
(2) A Magistrate shall have jurisdiction for the summary trial of offences and on the conviction
of any person accused of any such offence, may, subject to the other provisions of this Section,
impose the punishment provided by law for that offence.
(3) The fine which a Magistrate may impose in respect of any offence, shall not exceed the
maximum fine provided for that offence under the law.
(4) The term of imprisonment which a Magistrate may impose in respect of any offence, shall
not exceed the maximum term of imprisonment provided for that offence under the Law.
(5) A Magistrate shall not sentence a person to a prison term of more than fourteen (14) years.
(6) Notwithstanding any provision contained in this or any other Law, the criminal jurisdiction of
Magistrates’ Courts shall extend to the trial of offences contained in any of the following Laws –
a) Urban and Regional Planning and Development Law No. 9 of 2005;

b) Personal Income Tax Law Cap. P4 Laws of Lagos State of Nigeria 2003;
c) Environmental Sanitation Law Cap. E5 Laws of Lagos State of Nigeria 2003; and
d) Lagos State Lotteries Law 2004 Cap L89 Laws of Lagos State of Nigeria.
(7) The jurisdiction conferred on a Chief Magistrate in the Administration of Criminal Justice
Law 2007 and any other Law, shall continue to apply to any Magistrate in the State after the
commencement of this Law.
If a Magistrate court which possess the jurisdiction to try offence, impose a sentence more than
the 14 years, an appeal can be made against the sentence to the High court, on the ground that the
magistrate court has exceeded the 14 years maximum. The relevant order to be sought in that
instance would be an order to reduce the sentence and not an order to quash the conviction.
When the appeal is against conviction, it is a different matter-- Emone v Police, Quartey v IGP.
The power to increase the jurisdiction of the magistrate court of Lagos state to impose
punishment exceeding that prescribed shall be exercised by the AG Lagos State on
recommendation of the LSJSC---S. 27 MCL, in other states, it is increased by a law passed by
the State House of Assembly (duly signed by the Governor) on the recommendation of the chief
judge.
77
Reconciliation in criminal cases
S37 MCL: In criminal cases, a Magistrate may encourage the settlement in an amicable way of
proceedings for common assault or for any other offence not amounting to felony and not
aggravated in degree, on terms of payment of compensation or other terms approved by him.
Prosecution of criminal cases
S65 MCL: Prosecution in criminal cases in Magistrate Courts in the State shall be undertaken
by:
a) Law Officers; and

b) Police Officers and other law enforcement agents who are legal practitioners.
HIGH COURT
High Court of a State is provided for under S270 CFRN (as amended). Its jurisdiction to try an
offence is provided in S272 CFRN. The High Court has the power to try both indictable and
non-indictable offences. It has power to try offences which carries capital punishment.
272(1) Subject to the provisions of section 251 and other provisions of this Constitution, the
High Court of a State shall have jurisdiction to hear and determine any civil proceedings in
which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation
or claim is in issue or to 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 Jurisdiction of the High Court is unlimited. Although in practice, there are offences which
are usually tried by the Federal High Court, but there is no law which confers exclusive
jurisdiction on the Federal High Court, this is because S251(1) CFRN only gives exclusive
jurisdiction to the Federal High Court in relation to civil cases and not criminal cases. See
however the NDLEA Act FHC exclusive in drug offences. In FRN v Nwosu (2016), the SC held
that the exclusivity of the FHC jurisdiction doesn’t extend to criminal matters.
Jurisdiction of the High Court
i. As contained in S272 (1) CFRN.

ii. All indictable offences contained in an information;
iii. Any offence where jurisdiction is expressly conferred by the Constitution or any other
law;
iv. Any non-indictable offence brought by any other mode;
v. Criminal appeals from Magistrates’ Courts;
78
vi. Federal offences within its jurisdiction.

vii. Section II (1) (b) of the High Court Law Cap H3 Laws of Lagos State 2004.
viii. All indictable offences contained in an information.
ix. Any non-indictable offence brought by complaint: R v Waziri (1958) N.NLR 91; R. v.
Onubaka (1959) W.NLR.
NB: The State High Courts have jurisdiction to hear and determine cases involving the
contravention of all federal offences. See S.286(1)(a) CFRN? This position often taken by many,
how true is it? That section seems to be referring to FCT courts alone, this is clear when the first
phrase “Subject to the provisions of this constitution” and subsection 2 of the section.
NB: The High Court is a superior Court of record, as such, it is not limited in its jurisdiction to
impose punishment.
COURTS OF GENERAL CRIMINAL JURISDICTION IN THE NORTHERN STATES.
AREA COURTS
Area Courts are constituted by Area Courts Edicts of 1967 of each of the former Six (now
nineteen) Northern states. There are four grades of Area Courts; namely:
i. Upper Area Court

ii. Area Court grade I
iii. Area Court Grade II
iv. Area Court Grade III (S17)
The Courts are established by warrant under the hand of the Chief Judge of the State, and every
Court thus established shall exercise jurisdiction as may be conferred by the warrant establishing
it (S3).
An Area Court shall consist either of an Area Court Judge sitting alone or an Area Court Judge
sitting with one or more members (S4).
The Court may also sit with Assessors approved by the Chief Judge (S5).
Area Courts have jurisdiction to try:
(a) Offences in the Penal Code shown in Column 7 of Appendix A to the Criminal Procedure
Code Law to be triable by Native Courts, and reference to Native Courts in the Appendix should
read Area Courts as follows:
i. Native Court Grade A and A Limited -Upper Area Court
79
ii. Native Court Grade B - Area Court Grade I

iii. Native Court Grade C - Area Court Grade II
iv. Native Court Grade D - Area Court Grade III
(b) Other offences of which jurisdiction is expressly conferred by the Governor of the State
(S24).
Maximum punishment which Area Courts can impose are as follows:
i. Upper Area Court - Unlimited but cannot try homicide cases

ii. Area Court Grade I -5 years‟ imprisonment or ₦1,000.00 fine
iii. Area Court Grade II - 3 years‟ imprisonment or ₦600.00 fine
iv. Area Court Grade III - 9 months‟ imprisonment or ₦100.00 fine.
Proceedings are according to substantial justice without undue regard to technicalities (S6). In
Alabi v C.O.P (1971) NNLR 104 the court held that it was not necessary to frame a formal
charge. However, they are expected to comply with substantial justice. S.6 Area Court Edict.
Jos Native Authority v. Allah Na Gani. (1968) NMLR 8. See Akiga v. Tiv N.A. (1965)2 All
NLR 146, and Contrast Jos N.A. v. Allah Na Gani (1968) NMLR 8.
Area Courts have jurisdiction to try:
i. A person whose parents were members of any tribe(s) indigenous to some parts of Africa
and their descendants;
ii. a person, one of whose parents was a member of a tribe indigenous to Africa;
iii. a person who consents to be tried by the Court.
But the Military Governor may direct that any person or class of persons may not be subject to
the jurisdiction of Area Court (S15).
Appeal lies from Area Courts Grade I, II and III or Upper Area Courts to the High Court. See S.I
(a) FCT Abuja (Appeal from Area Court) Act Cap 127 1990 Laws of the Federation.
Area Court Inspectors appointed under the Edict or Act have power either on application of any
person aggrieved or of its own to appeal to the High Court. (S50).
No appeal shall lie from the lower Court at the instance of any person at whose request a case
has been reported to the High Court or Sharia Courts.
Right of Appearance of Counsel in Area Court
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By S390 CPC and S28 Area Court Edict, 1967, Legal Practitioners have no right of audience in
Area Courts. See however, S36(6)(c) CFRN as well as the case of Uzodima v. The COP (1982)
1 N.C.R., 27, where it was held that S.390 CPC and S. 28 Area Court Edicts contradicts. S
33(6)(C) CFRN 1979 now S36(6)(C) CFRN.
In the case of Rgd Trustees of ECWA Church v. Ijesha [1999] 13 NWLR (Pt. 635) 368 CA,
the court held that a Senior Advocate of Nigeria cannot appear before an inferior court, however
in a recent case of AG Lagos State v Persons Unknown, the court held that to hold that SAN
cannot appear before an inferior court will violate S36(6) CFRN.
Although the above case is a Magistrate Court decision which cannot overrule Ijesha’s case, but
it is a step in the right direction. The decision of the Area Court can be appealed against at the
High Court.
SHARI’A COURT
Shari’a Penal Code is established in some Northern States of Nigeria.
For instance, in Kano State, S3(1) of the Shari’a Courts Law makes provisions for two courts
which are
• The Shari’a court and

• Upper Shari’a court.
The first schedule to the law further provides for 7 grades of Shari’a Court as follows:
1. Upper Shari’a Court I = Unlimited

2. Upper shari’a Court II = unlimited
3. Principal Shari’a Court I = 10yrs, all cases except Homicide, Adultery and Robbery
4. Principal Shari’a II = 7yrs, same as above except Riot.
5. Senior Shari’a = 6yrs, same as above
6. Higher Shari’a = 5yrs, same as above
7. Shari’a = 3yrs, same as above.
Jurisdiction of Sharia Court over persons
i. The accused person is a Muslim.

ii. The non-Muslim who submits to the jurisdiction of Sharia Court.
• Where the offence was jointly committed with a non-Muslim and he refuses to submit to
jurisdiction, he can be referred to the Magistrate Court or other courts with jurisdiction to
try the case.
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• The Sharia Court is properly constituted where a single Alkali sits, however where it sits
as an appellate court, it shall be properly constituted by two Alkalis.
• The Alkali of a Sharia Court can impose Diya
• Lawyer can appear in Sharia Courts
• Applicable laws are: Penal Code, CPCL, Principles of Islamic Law and Procedure and
laws made by the Grand Khadis.
MAGISTRATES’ COURT (FCT)
• See: Magistrate Court (Increase of Jurisdiction of Magistrates) Order, 2014 made pursuant to
Criminal Procedure Act (Cap 495) Laws of FCT Nigeria, 2006.
Magistrates´ Court (F.C.T)
i. Chief Magistrate I, imprisonment for a term not exceeding 10 years or fine not exceeding
N50,000, or caning.
ii. Chief Magistrate II, imprisonment for a term not exceeding 8 years or fine not exceeding
N45,000 or caning.
iii. Senior Magistrate I, imprisonment for a term not exceeding 6 years or fine not exceeding
N40,000, or caning.
iv. Senior Magistrate ll, imprisonment for a term not exceeding 4 years, or fine not
exceeding N35,000, or caning.
v. Magistrate I, imprisonment for a term not exceeding 2 years, or fine not exceeding
N30,000, or caning.
vi. Magistrate II, imprisonment for a term not exceeding 1 year, or fine not exceeding
N25,000, or caning.
vii. Magistrate III, imprisonment for a term not exceeding 6 months, or fine not exceeding
N20,000, or caning.
MAGISTRATE COURTS IN THE NORTH
In Kano State, the Criminal Procedure Code was amended and the provision relating to the
number of grades of Magistrates’ Courts and the punishment to be imposed by them were
amended. Consequently, there are now seven grades of Magistrate Courts in Kano State. See
Section 4(1) & 16 Kano State Magistrate Court Edict 1986. For instance, Kano provides for 7
Grades as follows:
• Chief Magistrate Grade I = 14 YRS OR N30,000

• Chief Magistrate Grade I I= 12YRS or N25,000
• Senior Magistrate Grade I = 10yrs or N20,000
• Senior Magistrate Grade II = 7yrs or N15,000
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• Magistrate Court Grade I = 5yrs or N10,000

• Magistrate Court Grade II = 3yrs or N5,000
• Magistrate Court Grade III = 1yr or N2,000
HOLDING CHARGE
This is a practice by some Magistrate Court where the court hear the First Information Report of
persons charged with offences beyond its jurisdictions and remand the person in the prison to
await proper trial.
This is usually the escape route taken by the police to avoid violating S35(4) and (5) CFRN.
This practice has over the years been frowned at by superior courts because of its attendant
complications and injustice and has been declared as unconstitutional, Lufadeju v. COP,
Ahmed v COP, Bauchi State.
However, the legislature seems to have overruled the SC in the following provisions. S293
ACJA, S264 ACJL Lagos, 295 ACJL Kano empowers a Magistrate to make remand orders.
For example, a Magistrates’ Court in the FCT is empowered to remand a suspect for a period of
14 days at the first instance and a further period of 14 days where a probable cause is shown. SS.
294-296 ACJA. This is however different from a holding charge.
Application for remand or other interlocutory proceedings.
S293 ACJA:
(1) A suspect arrested for an offence which a magistrate court has no jurisdiction to try shall,
within a reasonable time of arrest, be brought before a magistrate court for remand.
(2) An application for remand under this section shall be made ex parte and shall:
a) be made in the prescribed “Report and Request for Remand Form” as contained in Form
8, in the First Schedule to this Act; and
b) be verified on oath and contain reasons for the remand request.
S294 ACJA: A court may remand in prison custody:
(1) Where the Court, after examining the reason for the arrest and for the request for remand in
accordance with the provisions of section 293 of this Act, is satisfied that there is probable cause
to remand 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, may remand the suspect in custody.
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(2) In considering whether “probable cause” has been established for the remand of a suspect
pursuant to subsection (1) of this section, the court may take into consideration the following:
a) the nature and seriousness of the alleged offence;

b) reasonable grounds to suspect that the suspect has been involved in the commission of the
alleged offence;
c) reasonable grounds for believing that the suspect may abscond or commit further offence
where he is not committed to custody; and
d) any other circumstance of the case that justifies the request for remand.
HIGH COURT IN THE NORTH. S270 CFRN
• High Court in the North has jurisdiction to try offences:

• Criminal Appeals from the Magistrate Court S. 272(2) CFRN.
• Criminal Appeals from Upper Area Courts S.272(2)
• Jurisdiction over Federal offences. S.286.
APPELLATE COURTS OF CRIMINAL JURISDICTION (NORTH AND SOUTH)
The Court of Appeal
• See section 237(1) and 240 of the 1999 Const. as amended. Its jurisdiction is further
provided in section 240-241 of the 1999 Constitution as amended.
• Appeals from the High Court, Federal High Court, Court Martial e.t.c
• Appeals may lie from these courts as of right or with leave to the Court of Appeal. S.240
and S.241. Constitution
• Who may appeal? S. 243 of the Constitution is instructive on this as it confers the right
of appeal on the Accused person and the Prosecutor. The complainant or victim cannot
appeal. Akinbiyi v Adelabu.
The Supreme Court of Nigeria
• See section 230 (1) of the 1999 Const. as amended. This Court is a court of general
appellate criminal jurisdiction, here, all criminal matters that comes before this Court is
by way of appeal. This is provided in section 233(1) of the 1999 constitution as
amended.
• Appeal to the Supreme Court can either be as of right or with leave. S. 233(2)
• Who may appeal? The accused person or the prosecutor (Attorney-General or any other
prosecutor) S.233(5) Constitution
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COURTS OF SPECIAL CRIMINAL JURISDICTION
JUVENILE COURTS
• This court was established under the Children and Young Persons Act, but was later
domesticated as Children and Young Persons Laws in various States.
• The courts were created to try juvenile offenders, children and young persons.
WHO IS A JUVENILE OFFENDER?
• Children (1-7) they are not criminally liable (S30 CC) and the Juvenile court has no
jurisdiction over them;
• Above 7 but less than 12: they are not criminally liable except where at the time of doing
the act they had the capacity of knowing that they ought not to do so. State v Nwabueze
(a child of less than 12 charged with as killed someone during fight, prosecution couldn’t
prove that he knew what he was doing as the test is subjective).
• Children (12-14) these children are liable for any act done by them which constitute an
offence. S. 30 Criminal Code, S. 2 CYPL.
• Above the age of 14 but below 18 years are classified as young persons under the CYPL.
• The Court is constituted by one Magistrate with such other persons as the Chief Judge
may determine.
• The Juvenile Court has the jurisdiction to try children and young persons.
Exceptions:
i. where the child or young person commits an offence that carries capital punishment.
ii. Where the child or young person is charged jointly with an adult.
iii. In the above cases the Juvenile court shall not have jurisdiction. S. 6(2) CYPL
Determination of Age
S6(3) CYPL provides that the court should adjourn in order to determine the question of age of
the child or young person.
The courts can verify the age of an accused person in the following ways:
• direct evidence of the date of birth, by birth certificate.

• oral testimony of the parents or relations;
• Medical examination by a medical doctor in a government hospital or Medical
Institution. R v Oladimeji, his age was put at 18yrs by his parents but was rejected when
a medical examination put his age at 25ys old.
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Characteristics of Juvenile Courts
1. Proceedings are not opened to the public S. 6(5) CYPL, S.36(4) Constitution.
2. The identity of the child or young person shall not be published except where the law
permits it. S. 6(6) CYPL
3. No child shall be ordered to be imprisoned. S.12(1) CYPL
4. No young person shall also be imprisoned except there is no other way to deal with him
S.12(2)
5. Where the young person is imprisoned, he shall not be allowed to mix with adult
prisoners. S.12(3) CYPL
6. A juvenile offender shall not be sentenced to death and death sentence cannot be
pronounced. Under S302 ACJL Lagos, the offender shall be detained at the pleasure of
the Governor. However, under ACJA, the offender shall be sentenced to life
imprisonment if found guilty of capital offence. S.405 ACJA.
7. The use of words like conviction and sentence is prohibited. S. 17 CYPL
8. Avoiding interactions with adult offenders S417 CPL.
NB: The relevant age is the age at the commission of the offence and not age at conviction. See
Bangaza v State, Modupe v State
THE COURT MARTIAL
S129 of the Armed Forces Act establish the Court Martial and provides for two types of Court
Martial which are:
i. the General Courts Martial

ii. the Special Courts Martial.
General Courts-Martial Composition:
i. President
ii. Not less than 4 members
iii. A Waiting Member
iv. A Liaison Officer
v. A Judge Advocate:
Special Courts-Martial Composition:
i. President
ii. Not less than two members
iii. A Waiting Member
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iv. A Liaison Officer

v. A Judge Advocate
• In both cases, the president shall not be under the rank of Major or other corresponding rank
except where such an officer is not available. In that case an officer not below the rank of
Captain or corresponding rank shall be the president.
• Note however that a Courts-Martial cannot try an officer who is above the rank of the president
and the members. S. 133(3) AFA, Okoro v Nigerian Army Council (Major), he was a major
but two members were captains and it was held a nullity.
RANKS
ARMY NAVY AIR FORCE
1. General Admiral of Fleet Marshal of the fleet
2. Lieutenant General Vice Admiral Air Marshal
3. Major General Rear Admiral Air Vice Marshal
4. Brigadier General Navy Commodore Air Commodore
5. Colonel Navy Captain Group Captain
6. Lieutenant Colonel Commander Wing Commander
7. Major Lieutenant Commander Squadron Leader
8. Captain Lieutenant Flight Lieutenant
9. Lieutenant Sub-Lieutenant Flying Officer
10. Second Lieutenant Acting Sub-Lieutenant Pilot Officer
• A Judge Advocate: The officer to be appointed as Judge advocate must be a commissioned

officer, a Legal Practitioner who must have 3 years post call experience. The Judge advocate acts
as the prosecutor and legal adviser to the Court. Who is a commissioned officer? A second
lieutenant as provided in the third schedule to the AFA.
• Note that the members must be of 5 years in service. S. 133(2) AFA
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• Note that the Judge Advocate is not a member of the Court for the purposes of quorum,
composition or voting. Nigerian Army v Dodo, it was held that the Judge Advocate is not a
member of the Courts-Martial.
• The Waiting member: he is on standby in case of any absent member. He is not a member of
the court and does not have a voting right.
• The Liaison Officer: He serves as a link between the Court and the outside world. He is not a
member and does not have a voting right.
• The Court Martial is a court that gives binding decisions and as such must observe the rules of
natural justice.
Jurisdiction of Court Martial
• The Jurisdiction is limited to persons who are subject to service laws S130 AFA i.e., members
of the Nigerian Army, Nigerian Navy and the Nigerian Air Force S.291 AFA
• The Court Martial has the jurisdiction to try both military and civil offences. Military offences
are offences created by the AFA. S.45-103 e.g., Misconduct, Mutiny, Insubordination, Absence
from duty, malingering and drunkenness, offences relating to property etc.
• S114(2) AFA defines Civil Offences as offences which are created by any law applicable in
Nigeria. S104-113 AFA list out the civil offences that can be tried by the Court Martial e.g.,
Assault, Rape, Manslaughter, Murder, Robbery etc.
• S170 AFA provides that once jurisdiction is assumed by a regular court there is nothing in the
Act that can oust the jurisdiction of the regular court.
Who May Convene a Court Martial? S131 AFA
Special Courts-Martial:
i. A person who may convene a general court martial

ii. The commanding officer of a battalion or a corresponding unit in the armed forces
iii. An officer for the time being acting in place of those officers
General Court Martial:
i. The President
ii. The Chief of Defence Staff
iii. Service Chiefs
iv. General Officer Commanding
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v. A Brigade Commander or corresponding command.
The power of the above may be delegated to another officer as was held in Nigerian Air force v
Obiosa
• The decision of courts martial is by the majority of votes of members.
• Where there is equality of votes on findings, the accused shall be acquitted. S140(2) AFA.
Where there is equality of votes on the sentence, the president shall have a second or casting
vote. S140(5)
• The decision of the court shall be announced in an open court and is subject to confirmation by
the convening authority.
• The scale of punishment which a court-martial may impose is contained in S.118 AFA and they
include death sentence, imprisonment, dismissal with disgrace, reduction in rank, fine etc.
• A General Court Martial shall not impose death sentence if it consists of less than seven
members while a special Courts-Martial shall not impose a sentence which exceeds
imprisonment for a term of one year or of death if it consists of only two members S.130 AFA.
• The decision of a Court Martial shall be signed and dated by the President of the court martial
and the Judge Advocate at the time of delivery. Failure to do so will render the decision void.
Army Rules of Procedure, Rule 76 of 1972. Yakubu v. Chief of Naval Staff (2004) NWLR
(Pt. 853) 94; Erizea v. Nigerian Army (2015) LPELR –26014(CA).
• Appeal from Courts Martial goes to the Court of Appeal and the appeal must be filed within 40
days of promulgating its decisions. Appeal against sentence of death must be filed within 10
days. Either party can appeal.
• A person who is no longer in service can be tried by Court Martial within 3 months of
retirement for an offence committed while in service. S.169(2) AFA, NAF v. James.
• A Courts- Martial is not a permanent court and it stands dissolved after discharging its
mandate.
• ACJA not applicable. S2(2) ACJA.
• AGF/S cannot discontinue/enter a nolle in a CM. S174(1)(a)(c) CFRN, S211(1)(a)(c) CFRN
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THE CODE OF CONDUCT TRIBUNAL
• Established under the 1999 Constitution as a tribunal and under the Code of Conduct Tribunal
Act.
• It is a tribunal of coordinate jurisdiction with the High Court and the Federal High Court;
• Has jurisdiction to try public officers for breaches of the Code of Conduct as set out in Paras 1-
14 part 1 fifth Schedule to the Const.
• It consists of Chairman and two members appointed by the President on the recommendation of
the National Judicial Council.
FEDERAL HIGH COURT
• Under the Constitution of 1979, the court was renamed Federal High Court.
• Under the 1999 Constitution, its jurisdictions are contained in S.251.
• The ACJA is the applicable procedural law
• The criminal jurisdiction of the Federal High court is territorial.
Criminal jurisdiction of the Federal High Court.
• S251(2) provides for treason, treasonable felony and allied offences.

• S251(3) also confers criminal jurisdiction on items listed under subsection 1 on the
Federal High Court.
• Note that because of the omission of the word exclusive as used under S. 251(1) which
relates to civil actions, the Federal High Court cannot be said to have exclusive criminal
jurisdiction on those matters. Momodu v. State
• In Momodu v State, the court held that the Federal High Court has concurrent jurisdiction
with other courts under S.251(2)(3) of the Constitution.
• Appeals from the Federal High Court lies to the Court of Appeal.
THE NATIONAL INDUSTRIAL COURT
• See S254A - F of the 1999 Constitution (3rd Alteration Act).

• Its jurisdiction is provided for under S7 NIC Act, 2006. Which is arising out of
employment, labour and industrial relations/dispute.
• In 2010, the National Assembly amended the Constitution by inserting immediately after
the existing S254 a new subheading ‘‘cc’’ and S254A-254F. S.254C(1) comprising
paragraphs a-m.
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• This enlarged the jurisdiction of the NIC to include matters relating to enforcement of
Chapter IV Fundamental Human Rights, child labour, sexual harassment in work places
as well as matters relating to or connected to the application of international labour
standards.
• S.254C(5) provides that “the NIC shall have and exercise jurisdiction and powers in
criminal causes and matters arising from any causes or matter of which jurisdiction is
conferred on the NIC by this section or any other Act of the NASS or by any other law.”
Thus, the section confers criminal jurisdiction on the court in matters on which it has
power to exercise civil jurisdiction. However, the criminal jurisdiction may not be
exclusive like the civil jurisdiction.
• Appeals from NIC lies to the Court of Appeal directly. S.254C(6)
• For the purpose of exercising its jurisdiction, the provisions of the Criminal Code, Penal
Code, Administration of Criminal Justice Act, 2015 and the Evidence Act shall apply.
S.254F(2)
• The National Industrial Court is a court of coordinate jurisdiction with the Federal High
Court and the High Court of the State and that of the FCT.
• The argument on whether the CA is the final arbiter for appeals arising from the
judgements of the NIC, it only applies to civil matters. The CFRN provides in S243(4)
that “without prejudice to the provisions of sections 254C(5) of this Act, the decision of
the CA in respect of ant appeal arising from any civil jurisdiction of the NIC shall be
final.”
CORONERS COURT
It is a court of inquest not trial. Inquiry into death and circumstances of death. 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. Adepetu v. State.
According to the Coroners’ System Law of Lagos State 2007, S53 (Interpretation):
• Coroner means a magistrate or any other person appointed under this law to inquire by
way of inquest into the cause of death.
• Inquest means a judicial inquiry to determine the cause of an unexpected natural or
violent death.
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When inquest to be held:
S15: the coroner shall hold an inquest whenever he is informed that the death of a deceased
person lying within his coroner district was as a result of death;
1. In a violent, unnatural or suspicious situation

2. In custody or shortly afterwards
3. Due to industrial disease, accident at work or industrial poisoning
4. Following medical intervention
5. During surgery or before recovery from anaesthesia
6. From a diagnostic procedure or therapeutic procedure regardless of time
7. Following a practice of non-conventional medicine or procedure or
8. Any material death occurring during or following pregnancy (up to six (6) weeks post-
partum) or which might be reasonably related to the pregnancy and
9. Any other reportable death where the coroner believes an inquest is desirable.
S18: inquest on all deaths occurring in custody
S20: coroner to be present at a place where execution by court order is taking place
S32: a coroner has all the powers of a magistrate
S34; coroner not bound by rules of evidence but if any witness fails to answer any question put
to him without lawful excuse, the coroner can fine him not more than N50k or punish him for
contempt.
• Inquest is subject to review by the HC

• A criminal charge need not necessarily follow an inquest
• Where the verdict of the coroner necessitates one, the AG may institute proceedings
• Nolle prosequi is not applicable. That is, the AG cannot exercise his powers of nolle
prosequi in respect of proceedings in a Coroner’s court
INTERNATIONAL CRIMINAL COURT
• The Rome Statute under which the Court was created came into force on 1st July, 2002.
• The court is different from the International Court of Justice. (ICJ)
• It is an independent Tribunal and not an arm of the United Nations Organisation. But the U.N
Security Council may refer cases to it.
• The court has no Jurisdiction to try States but only natural persons
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• The court is located at the Hague, the Netherlands but can sit anywhere for convenience.
• The ICC has jurisdiction to try crimes committed on the territory of member states or
committed by Nationals of member states.
• The prosecutor of ICC may intervene if the relevant state is unwilling to investigate and
prosecute offenders
• The ICC can issue warrant of arrest against such persons to be executed by Interpol and the
person will be brought before the court for prosecution. The ICC is not bound by immunity
clauses of member states and may arrest anyone accused of crime within its jurisdiction.
Jurisdiction Over Offences
• Article 5 of the Rome Statute confers jurisdiction on the ICC to try the following offences:
• Crime of Genocide- Article 6
• Crimes against humanity- Article 7
• War Crimes- Article 8
• The crime of aggression- Article 5(2)
• The ICC does not have jurisdiction over Minors and Juveniles.
Jurisdiction to Impose Punishment
• Article 77 prescribe the following punishments:
• Imprisonment for a specified number of years which may not exceed 30 years;
• Life imprisonment when it is justified by the gravity of the offence;
• The court may also order fine;
• Forfeiture of proceeds, property and assets derived directly from the crime.
• The ICC does not recognise death penalty.
• How is criminal proceedings initiated?
• By reference to the prosecutor by state party
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• By the prosecutor after initiating investigation under- Article 15.
PRE-CLASS
There have been a lot of security challenges following the Covid 19 pandemic with high
incidence of crimes committed in various parts of Nigeria. Nosa and Tive are friends who
specialize in snatching new SUV’s. On 25 April 2020 amidst the lockdown in Lagos, the duo
snatched a white 2020 G- wagon belonging to Baba Agba at gun point at a fuel station in Lekki
Phase 1. They drove the car at night from Lagos to Lokoja in KogiState where they took it to
Chief Victor Barawo to spray the car to a black colour and got a new number plate for it. On 5th
May 2020 due to the easing of the lockdown in the FCT they were able to drive the car into
Abuja and sold it for N10m.
Meanwhile, Tor another of their friend was apprehended after breaking into an NCC facility and
carting away sensitive equipment and assaulting the security guard. The punishment for stealing
is a minimum of 1O years in prison and for assault a minimum of 6years.
In Keffi in Nasarawa State, Chu Jung a Chinese was alleged to have battered his girlfriend Aisha
Bello who refused to give in to his sexual demands duo to fear that he may be carrying the
dreaded corona virus.
Answer the following questions
1. In which jurisdiction can Nosa and Tive be tried for armed robbery?
2. Assuming the duo were brought before a Magistrates’ Court in the FCT for the offence of
armed robbery, and the Magistrate makes an order remanding them for 14 days, comment on the
legality of the order.
3. Assuming the accused persons are to be tried in Lagos, draft the heading of the court and the
parties.
4. Comment on the jurisdiction of a Magistrates’ Court in Lagos to impose consecutive sentences

against Tor if he is convicted of both offences. Would your answer be different if
(1) It was a Magistrate in Kano that tried him?
(2) It was a Magistrate in the FCT that tried him?
5. Comment on the power of the Upper Area Court in Keffi to try Chu Jung. If Chu Jung had
committed this offence in Ibadan, can the Customary Court try him?
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6. Assuming Tor is 16 years old, comment on the jurisdiction of the Magistrates’ court to try
him. Would your answer be different if Tor had been charged for armed robbery?
Case Scenario and Task 2
Oduntan Mike and Ambo Bright who are both employees of Sleek Technologies Ltd a private IT
firm were arrested aboard an aircraft owed by Tranquility Air in Lagos for illegal possession of
drugs suspected to be cocaine. They were on their way to France. Oduntan resisted the NDLEA
officer who arrested them from handcuffing him and in the altercation that ensued, Oduntan
punched the NDLEA officer twice on the face before he was eventually subdue and taken away.
Meanwhile, because of the expensive lifestyle of the duo, which is believed to be beyond their
means, they have been arraigned before the Code of Conduct Tribunal.
Answer the following questions.
1. Which court has jurisdiction to try the duo for illegal possession of drugs?
2. Would your answer in question 1 above be different if the duo were only charged for
assaulting an NDLEA officer on board an aircraft?
3. Comment on the arraignment of Oduntan and Ambo before the code of conduct Tribunal.
What is the composition of the Tribunal?
Case Scenario and Task 3
General Dragon Gboza is the Commanding officer of Operation Wipe Out Terrorism. He is
known to be a no -nonsense man and ruthless. In a bid to achieve his mandate on time, he issued
an order for drone attacks on Kilishi village where terrorist were suspected to be hiding despite
the fact that this will put the lives of 5,000 people including women and children living there in
danger. The exercise led to the death of over 2,000 people mostly children. The Nigerian Army
has convened a General Court Martial to try General Dragon and appointed Captain Cobra as
chairman with 3 others.
There was massive international condemnation of the exercise with calls for General Dragon’s
trial at the International Criminal Court (ICC)
1. Comment on the jurisdiction of the General Court Martial to try General Dragon.
2. What is the difference between a General Court Martial and a Special Court Martial?
3. Mention the non-voting members of a General Court Martial and outline their roles
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4. What are the possible avenues of bringing General Dragon to justice before the ICC? What
possible offence can he be charged with before the ICC?
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WEEK 7 - INSTITUTION OF CRIMINAL PROCEEDINGS.
OUTCOMES
At the end of the lesson students would be able to:
1. Explain who can institute (commence) criminal proceedings;

2. Explain how to commence criminal proceedings in the various courts in Nigeria.
3. Explain the effect of the Federal High Court and FCT High Court Practice Directions
CONTENTS
1. Persons who have power to institute criminal proceedings-
a) the Attorney General

b) the Police
c) private persons
d) special prosecutors
2. Limitation of time to commence criminal proceedings

3. Modes of instituting criminal proceedings in the various courts in Nigeria-Information,
charges, complaint and F.I.R
4. Practice Directions at the Federal High Court and F.C.T High Court
NOTE: Students are expected to read the topic in advance paying particular attention to the
Constitution, the Police Act, the Criminal Procedure Laws of various states, Criminal Procedure
Code Laws of various states, the ACJL, Lagos, 2011, the ACJA, 2015 Criminal Code and Penal
Code.
ACTIVITIES:
1. In the class tutor gives an overview – 20 minutes

2. Students are grouped to discuss the prosecutorial powers of the Attorney General and
make sample presentation. - 40 minutes
3. Students are grouped to discuss and make sample presentations on the power of the
police to prosecute and making comparisons between the power of the police to withdraw
under S. 75 CPL and S. 108 of the ACJA, 2015 and the power of nolle prosequi by the
Attorney-General under the Constitution. - 30 minutes
4. Students are grouped to discuss and make sample presentations on the power of a private
person to institute criminal proceedings – 15 minutes.
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5. Students are grouped to make sample presentations on the power of a special prosecutor
to institute criminal proceedings – 15 minutes.
15 MINUTES BREAK
6. Students are grouped to make sample presentations on the modes of commencing

criminal proceedings in the Magistrates’ court in the South - 20 minutes.
criminal proceedings in the Magistrates’ court in the North - 20 minutes.
criminal proceedings in the High court in the South - 30 minutes
9. Students are grouped to discuss and make sample presentations on the modes of
commencing criminal proceedings in the High court in the North - 30 minutes
criminal proceedings in the Federal High Court and the National Industrial Court- 10
minutes
11. Students are grouped to make sample presentation on Federal High Court and F.C.T High
Court Practice Directions
WHO CAN INSTITUTE CRIMINAL PROCEEDINGS?
INTRODUCTION
• Since every offence committed by a person is an affront on the state, it is the state that
has the competence to institute criminal proceedings against such person. It was held in
The State v. Squadron Leader S.I. Olatunji (2003) 14 NWLR (pt. 839) 138 that where
there is no competence to institute criminal proceedings any trial in such proceedings is a
nullity.
• Competence is so crucial in prosecution such that an indictment without jurisdiction will
be quashed, even after the prosecution has closed its case. See Okafor v. The State
(1976) 5 S.C. 7
PERSONS THAT CAN COMMENCE CRIMINAL PROCEEDINGS IN NIGERIA
Persons that can institute criminal actions are:
1. The Attorney-General (Federal and State)

2. The Police
3. Private Persons
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4. Private Legal Practitioners

5. Special Prosecutors
THE ATTORNEY-GENERAL
• The office of the AG is created under SS150(1) and 195(1) CFRN for the federation and
States respectively
• The Attorney-General is the chief law officer of the Federation and States respectively.
S174 and S211 CFRN
• He has the powers to

› institute and undertake,
› take-over and continue, and
› discontinue any criminal proceeding against or in respect of any offender in their
respective jurisdictions in any court of law except a court-martial.
POWER TO INSTITUTE AND UNDERTAKE CRIMINAL PROCEEDINGS
• In Akpa v. State (2008) All FWLR (pt. 420) 644, the SC held that the Attorney General
has unfettered discretion to prosecute persons in respect of any offence.
• Generally speaking, the powers of A.G Federation is restricted to federal offences and the
powers of the A.G States are restricted to state offences
• The AG of a State can, however, prosecute a federal offence in two circumstances:

› Where a Federal Law is intended to operate as a state law Emelogu v. The State
(1998) 2 NWLR (pt. 78) 524. Also see S31 of Interpretation Act.
› By the instrumentality of a fiat, where the AG of the Federation delegates the
authority to him (this is usually in respect of a particular proceedings) S104(2)
ACJA. Where there is no such delegation, the AG State cannot prosecute, see
Anyebe v. The State (1986) 1 NWLR (pt. 14) 39.
POWER TO TAKE OVER AND CONTINUE CRIMINAL PROCEEDINGS
• The AG can take over and continue criminal proceedings instituted by any other authority
or person, including the Police, EFCC, ICPC, Customs, NDLEA, and private prosecutors.
See Amaefule v. The State (1988) 2 NWLR (pt. 75) 238; Nyame v. FRN (2007) 7
NWLR (Pt. 1993) 344
• The power of the AG to discontinue criminal proceedings, also known as nolle prosequi
is unarguably the most far-reaching and controversial of the powers,
• This power is exercised either orally by the AG in person or in writing through any of
the officers in his department. See S107 ACJA, S71 Lagos, S124 Kano, S174 (2)
CFRN, S211 (2) CFRN. It must be noted that none of the sections above stated the
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disparity of AG doing it orally in person or through his officers in writing but that he may
state it in court or inform the court in writing.
• Although most texts and materials refer to them as nolle for S107 ACJA, S71 Lagos,
S124 Kano, S174 (1)(C) CFRN, S211 (1)(C) CFRN and discontinuance for S108
ACJA, S73 Lagos, S125 Kano but I do not align with this line of reasoning. I think it
ought to be nolle or discontinuance and withdrawal. This is because the phrase “nolle
prosequi” literally means “unable to continue prosecution or discontinuance of
prosecution”, also, the sections used “discontinuance” in the first part and “withdrawal”
in the second. Similarly, the effects as stated in the law will reveal the intendment of the
drafters. For instance, when the prosecution can no longer continue, may be, due to
insufficient evidence, it is a mere discharge and the D can be prosecuted later without
amounting to double jeopardy but if the case is withdrawn which means that the
prosecution having considered the all the facts, evidence and circumstances of the case
decided to withdraw it, amounts to discharge and acquittal and thus would amount to
double jeopardy if the prosecution proceeded against the D again on same case. This is
also supported by S108(4) ACJA that mere discharge does not mean that the D cannot be
subsequently prosecuted.
• There is a difference between withdrawal and discontinuance/nolle prosequi, effect of the
latter is only discharge Clark v AG Lagos but the former may also amount to acquittal
depending on the stage of the trial, before D makes his defence (discharge), afterwards
(acquittal) or it can acquittal by the discretion of the court before the D make his defence
S108 ACJA, S73 Lagos, S125 Kano.
• The effect of entering a nolle prosequi is a mere discharge (not an acquittal) of the
defendant. See Clark v. A.G Lagos State (1986) 1 QLRN 119
• When there is no incumbent AG, no other officer in the AG’s department can enter nolle
prosequi- A.G Kaduna v. Hassan (1985) NWLR (pt. 8) 483
• Nolle cannot be entered on appeal, all the provisions of the law says it must be before
judgement S107 ACJA, S71 Lagos, S124 Kano, S174 (1)(C) CFRN, S211 (1)(C)
CFRN
• The power of nolle is unfettered and cannot be questioned even by a court State v. Ilori
(1983) 14 NSCC 69. The AG only need have regard to public interest, the interest of
justice and the need to prevent abuse of legal process. S174(3) and S211(3) CFRN.
DELEGATION OF POWERS OF THE ATTORNEY-GENERAL
• SS174(2) and 211(2) CFRN are both to the effect that the foregoing powers of the AG
can be exercised by officers in his department.
• The Attorney - General- be it Federal or State can delegate his powers to any of the
officers of his department. Note Sections 174 (2) or Section 211(2) of 1999
Constitution and Section 104 (2) of the ACJA, 2015, which provide that the A G.'s
power can be exercised by him in person or any officer of his department. Even in the
absence of an A.G, these functions (with the exception of the powers of entry of nolle
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prosequi), can be carried out by officers of his department. See State v. Obasi (1998)
NWLR Pt 567), 686; A.G of the Federation v. A.N.P.P & 2 Ors. (2003) 18 NWLR (Pt.
851) 182.
• The A. G. in delegating his powers is free to delegate all his powers to his subordinates.
See Ibrahim v. The State (1986) 1 NWLR (Pt. 18) 650. In this case, Supreme Court
although frowned at the attitude of an A. G. delegating all his powers, still held that such
delegation was valid. This is because under Section 174(3) or 211(3) CFRN, which
applies to the whole Section, the A.G. possesses an unquestionable discretion. The Court
however noted that if the A. G. had delegated his powers to the Director of Public
Prosecution (DPP) alone, it would be wrong for the D.P.P to delegate same to his
subordinates. The maxim is "delegatus non potest delegare" meaning "a delegate cannot
delegate"
• Note that where there is a blanket delegation by the A.G., a State Counsel can validly
sign the information in his name, without naming the Attorney-General as the ultimate
authority. See Ibrahim v. The State (supra).
• The AG may also delegate his powers to the Police, Customs, EFCC and other agencies
with prosecutorial powers. Saraki v. FRN (2016) LPELR-40013(SC); Comptroller of
Prisons v. Adekanye (2002) 15 NWLR (pt. 790) 318
• The power of delegation must be made expressly AG Kaduna State v. Hassan (1985)
NWLR (pt. 8) 483, Ibrahim v. State (1989) 1 NWLR (pt. 18) 650
• The power to institute criminal proceedings can be exercised even where there is no
incumbent Attorney-General Saraki v. FRN (2016) LPELR-40013(SC)
• However, the power to discontinue a criminal proceeding can only be exercised where
there is an incumbent Attorney-General. A.G Kaduna v. Hassan (1985) NWLR (pt. 8)
483
NOLLE PROSEQUI/POWER OF DISCONTINUANCE AND WITHDRAWAL
• The power to enter a nolle (discontinuance) should be distinguished from the power of a
prosecutor to withdraw from criminal proceedings under S107 ACJA, S71 Lagos, S124
Kano, S174 (1)(C) CFRN, S211 (1)(C) CFRN and S108 ACJA, S73 Lagos, S125
Kano
• The major differences are as follows:
• First, the effect of a nolle (discontinuance) is a discharge while the effect of a withdrawal
is a discharge or an acquittal depending on the stage of the trial. By S108(2) ACJA,
S73(1) Lagos, S125 (2) Kano, if the withdrawal is before D enters his denfence, it is
discharge but if after, it is acquittal. However, the laws further provide in S108(3) ACJA,
S73(1) Lagos, S125(3) Kano that the court may by its discretion still acquit the D when a
case is withdrawn even before he enters his defence and shall enter reasons in the record
for granting same.
• Second, entering a nolle (discontinuance) is at the discretion of the Attorney-General
while withdrawing proceedings is subject to the consent of the court. This is only
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applicable in Lagos by S73 ACJL but no mention of consent in ACJA S108 and ACLJ
Kano S125.
• Third, the court may award costs against a prosecutor who discontinues proceedings but
lacks such power in respect of a nolle.
• Fourth, in Clarke v The A. G. of Lagos State (1986) 1 Q.L.R.N. 119. The Court, under
S75 CPL, not only has to consent to the withdrawal, the prosecutor is enjoined to adduce
reasons for such withdrawal. Compare with Section 108 of the ACJA, 2015. In
exercising the power of nolle, the A. G. may be influenced by whatever reason, however
frivolous. Consequently, the Supreme Court held in The State v. Ilori (Supra) that
Section 191(3) of the 1979 Constitution now SS 174 (3) and 211 (3) respectively which
provides that the A. G. "shall have regards to public interest, the interest of justice and
the need to prevent abuse of legal process" is merely declaratory and not directory. If
the A.G. therefore disregards the provision(s), the only sanction against him is removal
by his appointor; adverse criticism by the public or instituting a civil claim against the
A.G, but the plaintiff must be able to show the damages suffered.
THE POWER OF THE AG TO ENTER NOLLE
• This is a very important power given to the AG by law.

• The A G. is a law unto himself in taking decisions on matters under Section 174 and
Section 211 of the Constitution. He cannot be questioned, nor his action reviewed. See
The State v. Ilori (1983) 2 S.C. 155.
• It is only the AG that can orally enter a nolle to discontinue a case.
• The AG need not give reason to discontinue the case
• He does not require the consent of the court to enter a nolle.
• His only limitation is that he must enter such nolle any time before judgment.
• The implication of this is that nolle cannot be entered on appeal.
• In exercising his (AG) powers under SS174(3) and 211(3) CFRN, the AG is required to
have regard to public interest, the interest of justice, and the need to prevent the abuse of
legal process.
• The above provision was tested in State v Ilori, and the Supreme Court held that the
provision imports a discretion but certainly did not create a condition.
THE POLICE
• The power of the Police to institute criminal proceedings is statutorily provided in

Section 66 of the Police Act 2020, it provides as follows:
S66.-(1) Subject to the provisions of section 174 and 211 of the Constitution and section
106 of the Administration of the Criminal Justice Act which relates to the powers of the
Attorney-General of the Federation and of a State to institute, take over and continue or
discontinue criminal proceedings against any person before any court of law in Nigeria, a
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police officer who is a legal practitioner, may prosecute in person before any court
whether or not the information or complaint is laid in his name.
NB: the police officer must be a legal practitioner. This is an innovation of the 2020
Police Act, hitherto, it was any police officer. But see subsection 2 below on a police
officer prosecuting an offence which a non-legal practitioner would ordinarily prosecute.
(2) A police officer may, subject to the provisions of the relevant criminal procedure laws
in force at the Federal or State level, prosecute before the courts those offences which
non-qualified legal practitioners can prosecute.
(3) There shall be assigned to every Police Division at least one police officer
(a) who is qualified to practise as legal practitioner in accordance with the Legal
Practitioners Act; and
(b) whose responsibility is to promote human rights compliance by officers of the

Division.
• The power is made subject to the power of the AG

• The law is settled that the Police have power to institute criminal proceedings in all
courts in Nigeria. Olusemo v. COP (1998) 11 NWLR (pt. 575) 547, Osahon v. FRN
(2006) 5 NWLR (pt. 973) 361
• The ACJL Lagos in S78 and ACJL Kano in S123 of their provisions provided for the
power of the police to prosecute matters in Magistrates courts. No such power was
mentioned by the same ACJL of the power of the police to prosecute at the High Court.
Thus, this may justify the conclusion by out lecturers that before a police officer cab
prosecute at a superior court of record, he must be a legal practitioner especially because
the Police Act is made subject to ACJA.
• However as stated above the two cases of Olusemo v COP, and Osahon v FRN have
laid to rest the controversy whether or not the police can prosecute beyond the
Magistrates court.
PRIVATE PERSONS
• The various criminal procedure laws recognise the power of private persons to institute
criminal proceedings SS77(1)(b)(ii) & 254 ACJL, SS 109(e) and 381(d) ACJA, S126(e)
ACJL Kano.
• The only limitation to the right of a private person to initiate criminal proceedings is
where the law or enactment specifically provides for the class of persons that can initiate
such action.
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• By S383 ACJA, it’d seem that the private person reference under this Act must be a legal
practitioner as it provides for information by private person but went ahead to refer to the
person as a legal practitioner. But note that Lagos didn’t use the term in S254 ACJL.
• Before an information signed by a private person is received by the Registrar of a court,
certain conditions as provided for in SS 383 and 384 ACJA must be fulfilled:
• First is that there must be an endorsement by the Attorney-General stating that he has
seen the information and declines to prosecute at the public instance, the offence(s)
contained in the information.
• Second, the private person shall enter into a recognisance in the sum as may be fixed by
the court, together with a surety in the like sum or pay costs as the court may order.
Lagos put the sum at ₦50k in S254 ACJL.
• Where an A. G. refuses to prosecute and refuses to endorse, Mandamus will lie against
the A.G. to secure his performance of the duty. See A.G. Anambra State v. Nwobodo
(1992) 7NWLR (Pt 256) 711, Fawehinmi v. Akilu. The authority of a private person to
file information regarding indictable offence(s) in Lagos State is now limited to the
offence of perjury, He may however charge an offender with non-indictable offence in
accordance with the law. See Atake v. Afejuku (1996).3 NWLR (Pt.437) 483.
• Note however, that the exercise of this power is subject to the powers of the Attorney-
General to take over and discontinue as contained in Section 174 and 211 of the
Constitution.
OTHER STATUTORY LIMITATIONS TO THE RIGHT OF A PRIVATE PERSON TO

PROSECUTE
• Proceedings for an offence of official corruption against a judicial officer- the

information must be signed by the AG.
• For the offence of sedition, the private person must seek the consent of the AG.
• Adultery and related offences under sections 387,388&389 of the penal code only the
persons specified therein can institute the action.
SPECIAL PROSECUTORS
• The statute creating an offence may designate a particular person or officer as the
appropriate person to initiate proceedings.
• Statutes that create special prosecutors include:
• The EFCC (Establishment) Act See Ibrahim Shehu Shema v. FRN (2018) LPELR-
43723(SC)
• Customs and Excise Management Act See Customs & Excise v. Barau (1982) 2 NCR
1
• The special prosecutor need not be a lawyer E.g. Section 66 of the Factories Act vests the
power of criminal proceedings in respect of factory offences on the Inspector of Factories
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PRIVATE LEGAL PRACTITIONERS AUTHORISED BY THE AG
• By S381(C) ACJA, an information may be filed by a private legal practitioner authorized

by the AGF. Where a legal practitioner is so engaged, he is said to enjoy the fiat of the
AG. See FRN v. Adewunmi (2007) ALL FWLR (Pt. 368), COP v. Tobi (2009) ALL
FWLR (Pt. 483) 1302; George v. FRN (2011) 10 NWLR (Pt.1254) 1 at 68, DPP v.
Akozor (1962) 1 All NLR 235, Nafiu Rabiu v. The State (1980) 8 - 11 S.C 130;
Gwonto v. The State (1983) 3 S.C 67.
LIMITATION OF TIME TO COMMENCE CRIMINAL PROCEEDINGS
• As a general rule, there is no time limit within which to commence criminal proceedings
against a person.
• Certain exceptions are, however, provided by statutes and include:
• Treason and Treasonable Felonies: within 2 years of the commission of the offence
(Note however, that there is no limitation of time with respect to the offence of
conspiracy) S43 CC to commit the offence, the exception only applies to actual
commission of the offence.
• Sedition: within 6 months of the commission of the offence S52(1) CC
• Proceedings under the Customs and Excise Management Act (CEMA): within 7
years of the commission of the offence S176(3) CEMA
• Private complaint under S92 ACJA, private complaint must be made within 6 years
• Sexual offences provided for in SS218 and 221 CC must be commenced within 2
months of the commission of the offence. For a girl under 13, or between 13 and 16 or
and idiot or imbecile.
• Service men (after retirement): 3 months S169 (1) and (2) Armed Forces Act.
Subsection (1) No person shall be tried by a court-martial for an offence (other than
mutiny, failure to suppress mutiny or desertion) unless the trial is begun within three
years after the commission of the offence, regard not being had to any period of time
during which that person was a prisoner of war or was illegally absent. However,
subsection 2: this is for service men who have left the service, after 3 months of the time
that they left, the court martial will no longer have jurisdiction over them, NAF v James.
• Conspiracy: conspiracy to commit any of the above offences doesn’t fall within the
exception R v Simmonds.
• Public Officers Protection Act: please note that this act doesn’t applies to criminal
proceedings. That is S2(a) thereof that an action against a public officer must be within 3
months. This was held in Yabugbe v COP where the D contended that its over three
months but the SC held per Akpata JSC that it couldn’t have been the intention of the
state to shield public officers from crimes.
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MODES OF INSTITUTING CRIMINAL PROCEEDINGS IN NIGERIA
MAGISTRATES’ COURTS UNDER THE ACJL Lagos
• By bringing a person arrested with or without a warrant before the Magistrates’ court
upon a charge contained in a charge sheet specifying the name and occupation of the
person charged, the charge against him and the date and place where the offence is
alleged to have been committed. S 78 ACJL
MAGISTRATES’ COURTS UNDER THE ACJA and ACJL Kano
• By a charge or a complaint whether or not on oath or upon receiving a FIR S109(a)

ACJA, S126(a) ACJL Kano.
• By bringing a person arrested without a warrant upon a charge contained in a charge
sheet S110(1)(a) ACJA, S127(1)(a) ACJL Kano, albeit Kano used the word complaint
but referred to charge subsequently and every other word is the same.
• By laying a First Information Report before a Magistrate S110(1)(b) ACJA,
S127(1)(b) ACJL Kano.
• By laying a complaint before a Magistrate S110(1)(c) ACJA, S127(1)(c) ACJL Kano.
HIGH COURTS UNDER THE ACJL Lagos
• By information of the Attorney-General of the state S77(1)(b)(i) ACJL

• By information, filed by a private prosecutor S77(1)(b)(ii) ACJL
• By information filed in the court after the accused person has been summarily committed
for perjury S77(1)(b)(iii) ACJL
• Summarily in respect of contempt S77(1)(b)(iv) ACJL
HIGH COURTS UNDER THE ACJA and ACJL Kano
• In the High Court, by information of the Attorney-General of the Federation S109(b)

ACJA, S126(b) ACJL Kano.
• By information or charge filed in the court after the defendant has been summarily
committed for perjury S109(c) ACJA, S126(c) ACJL Kano.
• By information or charge filed in the court by any other prosecuting authority S109(d)
ACJA, S126(d) ACJL Kano.
• By information or charge filed by a private prosecutor S109(e) ACJA, S126(e) ACJL
Kano.
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FEDERAL HIGH COURT
• Actions can be commenced before the FHC by way of a charge; This is inspite of the
provision of S.109 of ACJA which has a general provision See. S.33 FHC Act, which
has a specific provision on commencement of action at FHC.
However, here is the express provision of the FHCA, S33(1) Subject to the provisions
of this section, criminal proceedings before the Court shall be conducted
substantially in accordance with the provisions of the Criminal Procedure Act, and
the provisions of that Act shall, with such modifications as may be necessary to
bring it into conformity with the provisions of this Act, have effect in respect of
all matters falling within the jurisdiction of the Court. (2) Notwithstanding the
generality of subsection (1) of this section all criminal causes or matters before the Court
shall be tried summarily.
From to the above provision, it may seem really difficult to agree with the submission
above that commencing a criminal action at FHC should be by way of charge because the
provision in subsection (2) provides that all criminal causes shall be tried summarily and
subsection (1) clearly made the procedure subject to CPA which has now been repealed
by ACJA. It would seem like ACJA should take precedence. The argument is that all
causes tried summarily are commenced by way of charge, thus, FHC should not be an
exception.
S494 ACJA provides that “summary trial” means any trial by a Magistrate or a trial by a
High Court commenced without filing an information;
Thus, going by the above provision, it is apparent that FHCA should take precedent
because, first, it is a specific provision as against ACJA that is a general provision.
Second, it is a general principle of law that where there are conflicting general and
specific provisions, it is the latter that takes precedence and third, FHCA S33(2) itself,
starts by stating “notwithstanding anything in subsection (1)”, thus it has technically
knocked out the overall effect of subsection (1).
NATIONAL INDUSTRIAL COURT
• S109ACJA is applicable.
• Therefore, by information where the AG is initiating the proceedings
• Where any other person or authority is prosecuting, a charge or information would be
filed.
APPLICATION FOR CONSENT TO FILE AN INFORMATION/LEAVE TO PREFER A

CHARGE – NO LONGER APPLICABLE UNDER ACJA AND ACJL LAGOS AND
KANO
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EFFECT OF THE FEDERAL HIGH COURT AND FCT HIGH COURT PRACTICE
DIRECTIONS
• The Federal High Court practice directions relate to the offences of terrorism, trafficking
in persons, rape, corruption and money laundering.
• The FCT High Court Practice Directions relate to applications for leave to prefer a
criminal charge by the EFCC, ICPC or any other agency charged with the prosecution of
criminal offences.
• Under the High Court of the FCT Practice Directions, in all applications seeking leave to
prefer a criminal charge, a court may not hear the application until the accused person is
brought before it. It also requires, in addition to other provisions, that such application
must be accompanied by an affidavit stating that all investigations have been concluded
and that there is a prima facie case against the defendant.
• The FHC Practice Direction makes similar provisions regarding presence of the
defendant and supporting affidavit. However, while the FCT HC Practice Direction
relates to application for leave before preferring a charge, the FHC Practice Direction
relates to procedure to be adopted in proceedings before the court during hearing.
• These Practice Directions whether of the FHC or FCT High Court are made to ensure
speedy dispensation of justice.
• Where there is a conflict between the Practice Directions and the Rules of Courts, the
Rules of Courts will prevail over Practice Directions.
• Some of the Practice Directions made by these courts bothers on existing law. For
instance, the provision that an accused person must be present in court on the arraignment
has been taken care of by the case of Adeoye v The State [1999] 6 NWLR (Pt. 605) 64.
PRE-CLASS
SCENARIO 1
While Chief Tackson and wife, Bentley, were away in Abuja attending the thanksgiving party of
a family friend who had just won an election into the Senate, a gang of armed robbers stormed
their house at No. 5 Independence Avenue, Enugu. The five-man gang broke into the house in
the early hours of 5th August, 2019. They shot the gateman and forcefully had sexual intercourse
with the house help aged 12 years. They also carted away all electronic items in the house.
Following intense investigation, five students of the Institute of Management Sciences, Enugu
were arrested in connection with the robbery. The suspects: Pixa, Hexa, Mega, Crux and Kodo
were all detained at the Independence Police Station, Enugu.
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The Attorney-General of Enugu State filed an Information in the Chief Magistrate’s Court,
Independence Way, Enugu on the 5th day of November, 2019 against Pixa, Hexa and Mega for
murder, armed robbery and defilement. Crux and Kodo were not charged along with them as
they were released and asked to go home. On 6th November, 2019, the trio were arraigned and
they all pleaded not guilty to the three offences.
Without withdrawing the charge in the Magistrate Court, the AG initiated the same action before
the High Court No. 3, Enugu by preferring a charge without the leave of the High Court Judge.
Aggrieved by the decision of the AG to charge only three out of the five suspects to court, Chief
Tackson filed a complaint in the High Court against Crux and Kodo on 30th of November, 2019.
The AG, who was on pilgrimage to the Holy Land directed the DPP, Dinkpa Kasul, through the
telephone, to enter a nolle prosequi in the matter filed by Chief Tackson. Following the nolle
entered by the DPP, the learned trial Judge discharged and acquitted Crux and Kodo. Chief
Tackson was very aggrieved and swore to sue the AG for abuse of office when he returns.
While the matter against Pixa, Hexa and Mega was still pending in court, there was a cabinet
shakeup and the AG was removed, leaving the Solicitor-General to discharge the functions of
that office.
The parents of Pixa, Hexa and Mega approached the Solicitor-General of the state, Mrs Ewu and
pleaded with her to enter a nolle prosequi in their children’s case. On the next adjourned date,
Mrs Ewu entered a nolle in the matter after seeking the consent of the High Court Judge. They
were however immediately re-arrested by the police outside the courtroom.
The prosecution intends to appeal the judgment. With the aid of statutory and judicial
authorities, answer the following questions:
1. Comment on the competence of the Information filed by the AG in the Chief Magistrate’s
Court.
2. Comment on the failure of the AG to charge Crux and Kodo to court
3. Comment on the decision of the AG to initiate the same action against the accused at the High
Court by preferring a charge without the leave of the court.
4. Comment on the complaint filed by Chief Tackson at the High Court.
5. What other options are open to Chief Tackson to ventilate his grievances against the AG.
6. Comment on the nolle prosequi entered by the DPP on behalf of the AG and the Order made
by the court.
109
7. Comment on the nolle posequi entered by the Solicitor-General in the case of Pixa, Hexa and
Mega and their subsequent re-arrest by the police.
SCENARIO 2
A case of illegal possession of firearms was reported against Chief Ukpala at the Surulere Police
Station on the 5th of August, 2019. The Police, after investigation, arraigned him at the Federal
High Court, Ikeja through an Information prepared by the DPO, CSP Udara on the 5th of
December, 2019. The Defence filed a preliminary objection on the following grounds:
1. That Chief Ukpala, being a staff of the Ministry of Defence, is a public officer and hence the
matter is statute-barred.
2. That the Police can only prosecute in the Magistrate’s Court.
3. That the case was filed without leave of the FHC Judge. The matter was adjourned to 6th
December, 2019 for ruling on the preliminary objections. On the adjourned date, the AG of
Lagos State, Chief Iyala Isolo (SAN) announced appearance and applied to take over the
prosecution of the matter. The Defence objected and the Judge ruled that the AG was a
meddlesome interloper, since he did not file the matter in the first place. The matter has been
adjourned to 20th of June, 2020 for hearing.
Discuss the following issues citing relevant authorities:
1. The competence of the Police to file the matter and the mode of initiating the action
2. The grounds of P.O. filed by the defence.
3. The application of the AG to take over the case and the ruling of the court
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WEEK 8 – CHARGES
OUTCOMES
1. Explain the form and contents of a charge sheet;

2. Explain the prosecutorial authorities-the State, the State of Lagos, F.R.N, C.O.P and
I.G.P
3. Explain and discuss the rules of drafting charges;
4. Explain the effect of breach of each rule
CONTENTS
1. Form and contents of a charge sheet;

2. Prosecutorial authorities
3. Rules of drafting charges, viz:
a) The rule against ambiguity

b) The rule against duplicity
c) The rule against mis-joinder of offences
d) The rule against mis-joinder of offenders
4. Effect of breach of each rule

5. How to draft a charge in the various courts in Nigeria
Criminal Procedure Laws of the various states, Criminal Procedure Code Laws of the various
states, ACJL, Lagos, 2011, the ACJA, 2015, the Criminal Code, Penal Code and the
Constitution.
ACTIVITIES IN CLASS:

2. Students are grouped to discuss the form and content of charges; sample presentations are
made – 40 minutes
3. Students are grouped to discuss and make sample presentations on the rules of drafting
charges – the rule against ambiguity – 20 minutes
4. Students are grouped to make sample presentations on the rules of drafting charges – the
rule against mis-joinder of offenders – 40 minutes.
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15 INUTES BREAK
rule against mis-joinder of offences – 40 minutes.
rule against duplicity – 40 minutes.
7. Assessment – 40 minutes
WHAT IS A CHARGE?
“Charge” means the statement of offence or statement of offences with which a defendant is
charged in a trial whether by way of summary trial or trial by way of information before a court
Ss. 371 ACJL Lagos & 494 ACJA, 2 ACJL Kano. This is in compliance with S36(6)(b)
CFRN to unambiguously inform the D in a language that he understands of the offence with
which he is charged. Charge can be either the allegation or the charge sheet, it all depends.
PERSONS WHO CAN DRAFT CHARGES
• Generally, the various laws and Act did not specifically provide for who would draft a
charge or prepare a charge sheet but because of the general principle that it is signed by
the drafter, and since the laws and Act provide for those who would sign, the general
assumption will as well be adopted here.
• Under the ACJA (Abuja) and Kano, “the charge sheets shall be signed by any of the
persons mentioned in section 106 of this Act” S110(1)(a) ACJA, S127(1)(a) ACJL
Kano and those mentioned in S106 are;
(a) the Attorney-General of the Federation or a Law Officer in his Ministry or
Department;
(b) a legal practitioner authorised by the Attorney-General of the Federation; or
(c) a legal practitioner authorized to prosecute by this Act or any other Act of the
National Assembly.
› If it was a FIR, it “shall be signed by the police officer in charge of the case”
S110(1)(b) ACJA, S127(1)(b) ACJL Kano
› They didn’t state who to sign a complaint but going by Form No 3 in the First
Schedule ACJA on the draft of complaints, it should be signed by the Magistrate.
• In Lagos, “the charge sheet shall be signed by a Law Officer or the Police Officer in
charge of the case” S78(2) ACJL Lagos.
• In the magistrate court in the south, it is the police officer or law officer who can draft a
charge STATE v OKPEGBORO.
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• In the HC, by virtue of SS 109 ACJA, 77 ACJL Lagos, 126 ACJL Kano, it is those
mentioned as having the power to prefer the charges therein who can either draft or frank
the charges.
• Note the other officers per force possess the power to draft the charge.
• Note that a law officer can sign his name on an Information without indicating the
Attorney General as the ultimate authority, where the Attorney General has delegated his
powers to the officers of his department. See Ibrahim v. The State (1986) 1 NWLR 650;
and The State v. Okpegboro (1980) 2 N.C.R. 291.
PROSECUTORIAL AUTHORITY
• In the magistrate courts in any state of the federation, including Abuja, the
prosecutorial authority is COMMISSIONER OF POLICE.
• High courts: in other states of the federation apart from Lagos, it is STATE. In Lagos
state, it is the STATE OF LAGOS by virtue of S249 ACJL Lagos.
• In the FHC, it is the FEDERAL REPUBLIC OF NIGERIA.
• In the High Court of FCT, it is also the FEDERAL REPUBLIC OF NIGERIA.
• Importantly in State High Court, when it has to do with federal offences or offences
created by the Act of National Assembly, the prosecutorial authority is the FEDERAL
REPUBLIC OF NIGERIA.
APPLICATION OF CHARGE AND INFORMATION
Court Charge Complainant/ Reference Body Charge Franking

Sheet Defendant No Paragraphs
MC FCT Charge by COP/Defendant Charge No 3: Intro, Count Presiding
FIR Charge and Magistrate
Direction.
MC Charge COP/Defendant Charge No 1: Count Count Police
Lagos Officer/Law
Officer
MC Charge by COP/Defendant Charge No 3: Intro, Charge Presiding
Kano FIR Charge and Magistrate
Direction.
FHC Charge FRN/Defendant Charge No 1: Count Count AGF, his
because law officer
of S33 of or a legal
the practitioner
FHCA authorised
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taking by law to
precedent prosecute
over S109
ACJA
NIC Charge/ FRN/Defendant Charge No 2: Count AGF, his
Info Statement law officer
because of Offence or a legal
S109 and practitioner
ACJA Particulars authorised
applies of Offence by law to
(details prosecute
here is for
info)
HC FCT Info FRN/Defendant Charge No 2: Count AGF, his
Statement law officer
of Offence or a legal
and practitioner
Particulars authorised
of Offence by law to
prosecute
HC Info The State of Charge No 2: Count AGF, his
Lagos Lagos (can be Statement law officer
FRN in federal of Offence or a legal
offences at state and practitioner
level)/ Particulars authorised
Defendant of Offence by law to
prosecute
HC Charge The State (can Charge No 1: Charge Charge AGS, his

Kano be FRN in law officer
federal offences or a legal
at state level)/ practitioner
Defendant authorised
by law to
prosecute
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FORMS AND CONTENTS OF A CHARGE
The components of a charge are as follows:
1. Heading
2. Reference Number
3. Parties
4. Preamble (Where applicable)
5. Main Body
6. Date
7. Subscription
1. HEADING: Every charge or information must be headed in the name of the court where the
charge or information is to be preferred, e.g.,
IN THE HIGH COURT OF LAGOS STATE, IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS
OR
IN THE MAGISTRATES’ COURT OF LAGOS STATE, IN THE LAGOS

MAGISTERIAL DISTRICT HOLDEN AT LAGOS
OR
IN THE FEDERAL HIGH COURT, IN THE LAGOS JUDICIAL DIVISION HOLDEN

AT LAGOS
OR
IN THE NATIONAL INDUSTRIAL COURT, IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS
2. REFERENCE NUMBER: Reference number must come immediately after the heading on
the right-hand corner of the charge or information sheet. It must also appear in capital letters as
in the heading, e.g. In Kano, there is no ref number provided in the Appendix B to the ACJL but
in practice charge number instead of case number is now deployed. It is also advisable to use
charge number especially since majority of the campuses were told to use same. Also, because
ACJL Kano is like a domestication of ACJA and it is charge number under ACJA.
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IN THE HIGH COURT OF LAGOS STATE, IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS
CHARGE NO: LG/HC/2022/1591
OR
IN THE MAGISTRATES’ COURT OF LAGOS STATE, IN THE LAGOS

MAGISTERIAL DISTRICT HOLDEN AT LAGOS
3. Parties: The parties must be stated immediately after the Reference Number and these are the
prosecutorial authority and the accused/defendant as the case may be.
The prosecutorial authority in State offences in the High Court is “The State” except Lagos State
where the prosecutorial authority is “The State of Lagos”. See S249 ACJ(R&R)L. The
prosecutorial authority in the Magistrates’ Courts whether the court resides in the South or the
North is “Commissioner of Police”
The Prosecutorial authority for Federal offences will depend on who is instituting the
proceedings:
1. If on behalf of the AGF it shall be in the name of “The Federal Republic of Nigeria”. S.
268 (3) ACJA
2. If it is instituted upon delegation by AGF either by a private practitioner or a Commission
or Agency it shall be in the name of “The Federal Republic of Nigeria”. S. 268 (3) ACJA
3. Where it is instituted by a police officer it shall be in the name of “Inspector General of
Police” or “Commissioner of Police” as the case may be. S. 268 (2) ACJA.
Parties are stated in all states except Lagos thus:
BETWEEN:
THE STATE…………………………COMPLAINANT
AND
BUKA SUKA……………………………DEFENDANT
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But in Lagos, it is the State of Lagos by virtue of section S249 ACJL Lagos and it is drafted
thus:
BETWEEN:
THE STATE OF LAGOS…………………………COMPLAINANT
AND
BUKA SUKA……………………………DEFENDANT
4. PREAMBLE: This is only required when drafting an information to be preferred in the High
Court (South). It comes immediately after the parties and must be in the lower case i.e., small
letters. It is written thus:
At the sessions of the High Court of Lagos State holden at Lagos on the Sixth day of
February, 2022, the Court is informed by the Attorney General on behalf of the State that
Buka Suka is charged with the following offences:
If at the FCT by way of information, it will be:
At the sessions of the High Court of Lagos State holden at Lagos on the Sixth day of
February, 2022, the Court is informed by the Attorney General on behalf of the Federation
that Buka Suka is charged with the following offences:
5. Main Body This refers to the head of offence. This comes immediately after the preamble
where information is being drafted. Where the charge is not an information, the offences being
charged (body) must come immediately after parties.
Content:
• Name (start with that)

• Date
• Address
• Division/District
• Offence commission
• Description of offence with elements
• Name of victim
• Section of the law (mostly punishment section depending on the provision)
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The offences must be charged one after the other except where any of the rules of drafting allows
that any two offences may be charged together on the same charge sheet. Every head of offence
in an information must be in two paragraphs i.e.
“Statement of Offence”
Content
• Name of offence
• Section of the law (definition)
“Particulars of Offence”
Content
• Name (no that you)

• Date
• Address
• Division/District
• Commission of offence
• Description of offence
• Name of victim
6. Date: Every charge or information must be dated. This comes immediately after the last
offence has been drafted. Note that the ACJA allow the date to be placed before the preamble.
See s. 377 ACJA & Form 11 of the 1st Schedule to ACJA.
In practice however, it comes after the last offence has been drafted and it is written thus:
Dated this……day of ……, 2022
7. Signature: Every charge or information must be signed by the framer of the charge. It comes
immediately after the date and should appear at the bottom right-hand corner of the charge or
information, e.g.
…………………………….
Chris Ozo Agbata Esq.
(Senior State Counsel)
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For: Attorney General
Lagos State Ministry of Justice
SECTIONS TO USE FOR CHARGE
• The section which prescribes punishment for the offence being charged must be referred
to in the count bearing the offence on the charge sheet. E.g., in charging the offence of
perjury s. 118 CC must be used instead of s. 117 CC which only defines the offence.
• Where an offence is defined in one section and punishment for the offence is prescribed
in that same section, then the charge sheet must state that section (punishment) only.
• Where an offence is defined in one section and penalty is prescribed in another section,
penalty section should be used. However, by S. 194(3) ACJA, the law and the
punishment section must be stated in the charge. For example, Contrary to
section…and punishable under section…
• Where a section of the law defines the offence but punishment for that particular offence
and other offences are jointly stated in a separate section, the charge sheet shall state both
the definition section and penalty section.
• An offence with categories with different punishments, punishment section is used. E.g.,
different types of stealing.
• The Reference Number on a charge sheet to be used before any court in the South and
Federal Courts is to be captioned “Charge No.” while it is to be captioned “Case No.”?
where it appears on any charge to be used in any court in the North. It appears Charge
No. is now used in the North but we await the final verdict of the NLS lecturers for the
Purpose of Bar Finals ahead of exams.
• Every head of offence is referred to as “Count” on a charge or information to be used in

the Magistrate or Federal Courts and High.
• There may be more than one charge in a charge sheet:

o Count 1,2,3 in the South
o Charge 1,2,3 in the North
o See however 2nd and 3rd Schedule to ACJL; 2nd and 3rd Schedule to ACJA;
Appendix B ACJL Kano with just numbered paragraphs.
119
• A charge to be used in the High Court (South) is referred to as “Information” while it is

referred to as “Charge” in the Magistrates Court (South), Federal High Court, Magistrates
or High Court (North).
• Every count on an information must have two paragraphs i.e., “Statement of offence” and
“Particulars of Offence” whereas every head of offence referred to as “Charge” in the
Magistrates court, South, High court North or Federal High Court must be in a single
paragraph containing both the statement and particulars of offence.
• A charge to be used in a Magistrate’s Court in Lagos may be drafted by the Police

whereas only a Magistrate can draft a Charge to be preferred in a Magistrate’s Court in
the North.
• The use of preamble is only necessary when drafting an Information to be preferred in the
High Court in Lagos, it is not required for any other form of charge.
• When drafting information, start with the “name” e.g., at HC Lagos but when it is charge,
start with “that” e.g., “That you, Chris Ozo Agbata”
RULES OF DRAFTING CHARGES
The rules guiding the drafting of charges are four and they are:
1. The rule against misjoinder of offenders.

2. The Rule against misjoinder of offences.
3. The Rule against duplicity and
4. The rule against ambiguity.
1. RULE AGAINST MISJOINDER OF OFFENDERS: This rule applies to the charge sheet
and not to the count.
The General Rule: Every offender must be charged and tried separately for the offence
committed even when the offence is committed jointly with others. Every charge sheet or each
count is to have only one defendant.
S208 of ACJA on “Defendants who may be charged jointly” provides:
The following defendants may be charged and tried together; defendant accused of:
a) the same offence committed in the course of the same transaction;
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b) an offence and another of abetting or being accessory to or attempting to commit the

same offence;
c) more than one offence of the same or similar character, committed by them jointly;
d) different offences committed in the course of the same transaction;
e) offences which include theft, extortion or criminal misappropriation and another accused
of receiving or retaining or assisting in the disposal or concealment of property, the
possession of which has been transferred by offences committed by the first named
persons, or of abetment of or attempting to commit any of the last named offences; and
f) dishonestly receiving stolen property or assisting in concealment of stolen property, or in
respect of stolen property the possession of which has been transferred by one offence,
and another accused of offences committed during a fight or series of fights arising out of
another fight, and persons accused of abetting any of these offences.
Exceptions:
1. When two or more persons jointly commit an offence, all the offenders may be charged and
tried together on the same charge sheet for that same offence. See S208 ACJA; S151(a) ACJL
Lagos; S215 ACJL Kano; Okojie v. C.O.P. [1961] WNLR 97.
Example: If ‘A’ and ‘B’ jointly stole Miss Ann’s Handbag, ‘A’ and ‘B’ may be charged together
on the same charge sheet and under the same count for the offence of stealing.
2. When two or more persons are accused of different offences which were committed in the
course of same transaction, all the accused persons may be charged and tried together on the
same charge sheet though, each person will be charged for the offence he committed under a
distinct count in the same charge sheet. See s. 208 ACJA; s. 151(a) ACJL Lagos; s. 215 ACJL
Kano; Haruna v. The State [1972] NSCC 550.
Example: ‘A’ and ‘B’ jointly agreed to beat up ‘C’. If in the course of the beating by both ‘A’
and ‘B’, ‘A’ removed N5,000 from ‘C’s pocket without the knowledge of ‘B’, both ‘A’ and ‘B’
will be charged together under the same count for the offence of assault as well as battery while
‘A’ alone will be charged under a different count on the same charge sheet for the offence of
stealing.
The test of what amounts to ‘course of the same transaction as laid down in Haruna’s case is:
“whether two or more acts constitute the ‘same transaction’ depends on proximity of time and
place, continuity of action and community of purpose or design relative to the particular
acts…thus in order to constitute same transaction, all the acts from the very beginning should be
either in contemplation or should form the component parts of a whole”.
Note however that no matter how proximate the commission of two or more offences may be, it
must be shown that the offences are connected by a string which is continuity of action.
121
3. When a person is accused of committing an offence and another of abetting or been accessory
to or attempting to commit such offence, the accused persons may be charged and tried together
on the same charge sheet but under different counts. See s. 151 (b) ACJL Lagos; s. 208 (b)
ACJA; 215(b) ACJL Kano, Patrick Njovens & Ors v. The State [1973] NNLR 76.
Example: ‘A’ being aware of ‘B’s escape from a lawful custody provides ‘B’ with shelter to
shield ‘B’ from arrest, both ‘A’ and ‘B’ may be charged together for the offences of screening
and escape from lawful custody respectively on the same charge sheet but under different counts.
4. When a person is accused of any offence of theft, criminal misappropriation, criminal breach
of trust and another of receiving or retaining or assisting in the disposal or concealment of the
subject matter of such offence, the accused persons may be charged and tried together on the
same charge sheet but different counts. See s. 151 (b) ACJL Lagos; s. 208 (e) & (f) ACJA; s
215(e) ACJL Kano, Patrick Njovens v. The State.
Example: ‘A’ stole a Hp laptop and ‘B’ bought the laptop from ‘A’ at a price lower than the
market value of the laptop knowing or having reasons to know that the laptop was stolen. Both
‘A’ and ‘B’ may be charged and tried together on the same charge sheet for the offences of
stealing and receiving stolen property respectively on the same charge sheet but under different
counts.
Note that for the offenders to be charged together in the same charge sheet, the offences must be
related to each other. This means that the commission of one of the offences depends on the
other e.g., stealing and receiving stolen property. See Patrick Njoven’s case.
Note also that the Court has the power to order separate trial, on application by defence, the
exceptions notwithstanding. See Mailayi & another v The State (1968) ANLR 117.
2. THE RULE AGAINST MISJOINDER OF OFFENCES. This rule applies to the charge
sheet and not to the count.
General Rule: Where a person is accused of several offences he must be charged and tried
separately for each of the offences otherwise the charge will be bad for misjoinder of offences.
For instance, see Ss. 152 ACJL Lagos, 209 ACJA & 216 Kano.
S209 of ACJA on “Separate charges for distinct offences.” provides:
For every distinct offence with which a defendant is accused, there shall be a separate charge and
every charge shall be tried separately except in the following circumstances:
a) any three offences committed by a defendant within 12 months whether or not they are of
the same or similar character or whether or not they are in respect of the same person or
persons;
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b) any number of the same type of offence committed by a defendant;

c) any number of offences committed by a defendant in the course of the same transaction
having regard to the proximity of the time and place, continuity of action and community
of purpose; or
d) cases mentioned in sections 210 to 215 of this Act.
Exceptions: 1. Where a person is accused of committing several offences within a period of 12

months, any three of such offences may be selected, charged and tried together on the same
charge sheet notwithstanding that the offences were not committed in the course of same
transaction. See Ss. 153(i) ACJL Lagos; s. 209 (a) ACJA, s 216(a) ACJL Kano.
Example: ‘A’ stole some money belonging to ‘B’ in March 2018; assaulted ‘X’ in April 2018;
raped ‘Y’ in May 2018; killed ‘Z’ in August 2018; led a riot in September 2018; and drove while
drunk in February 2019, ‘A’ may be charged and tried for any three of the offences on the same
charge sheet.
2. Where a person is accused of committing several offences which are so connected as to form
part of same transaction any number of the offences may be charged and tried together on the
same charge sheet (different counts). See S153 (iii) ACJL Lagos; S209 (c) ACJA; S216(c)
ACJL Kano.
Note that this rule does not limit the framer of the charge under this rule to any particular number
of offences. All that he is required to do is to have regard to:
i. proximity of time and place;

ii. Continuity of action; and
iii. Community of purpose
See Onubaka v. Queen, 4 FSC 267; S153 (iii) ACJL Lagos; S209 (c) ACJA.
Example: ‘A’ entered ‘B’s apartment in his absence and removed the key to a Toyota Land
Cruiser belonging to ‘B’s employer, ‘A’ used the car to rob ‘C’ and while trying to facilitate his
escape he knocked down ‘D’ who died instantly. ‘A’ may be charged and tried on a single charge
sheet for the offences of house breaking, trespass to property, robbery and manslaughter.
3. Where a person is alleged to have committed offences which comprise same elements but are
constituted under different laws, the person may be charged and tried for all the offences on the
same charge sheet under the different laws in which the offences have been constituted. S212
ACJA, S219 – 222 ACJL Kano. No corresponding provision in the ACJL Lagos.
Example: ‘A’, a taxi driver drove dangerously on the Lagos-Ibadan Expressway and had an
accident whereupon one of the passengers died. ‘A’ may be charged for the offence of causing
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death by dangerous driving under the Federal Highway Act and manslaughter under the Criminal
Code on the same charge sheet.
Note that the accused can only be convicted and sentenced for one of the offences. See Elliot v.
COP [1960] WRNLR 182
4. Where there is doubt as to which of the several offences created by law may be established by
the existence of a single act or series of acts or omissions of which a person has been alleged, the
person may be charged and tried on a single charge for all or any one or more of such offences or
any or all the offences in the alternative. See s. 214 ACJA, 221 ACJL Kano; Azie v. The State
[1973] 3 SC 149 (No similar provision in ACJL)
Example: ‘Y’ is accused of series of acts which may amount to sexual harassment, indecent
assault and rape. If the prosecutor is in doubt as to which of the three offences the series of acts
could establish, ‘Y’ may be charged and tried on a single charge sheet for all the offences in the
alternative.
3. RULE AGAINST DUPLICITY
General rule: Every distinct offence with which a person is charged must be contained in a
distinct count or charge. See s. 152 ACJL Lagos; s. 209 ACJA; s. 216 ACJL Kano. This rule
applies to each count of offence and not to the charge sheet. This means that each count in a
charge sheet must disclose one offence only.
Exceptions
1. Statutory exception: Some statutes permit joining of two or more offences in a single count.
S. 193 ACJA provides that charges may be as in the forms set out in the 2nd schedule of this Act
and may be modified in such respect as may be necessary to adapt them to the circumstances of
each case. See Ss. 146 ACJL Lagos & 200 ACJL Kano for similar provisions.
Example: If ‘A’ is accused of burglary and stealing in Lagos State, the two offences may be
contained in a single count and the charge will not be bad for duplicity. It may be drafted thus:
COUNT 1: STATEMENT OF OFFENCE: Burglary contrary to s. 411 and stealing contrary to

s. 390 (4)(b) of the Criminal Laws of Lagos State.
PARTICULARS OF OFFENCE: Stone Face (m) on the 4th of April 2019 at No. 3 Alomo
road, Ikoyi in the Lagos Judicial Div broke and entered the residential apartment of Mr. Ojo at
8pm with the intent to steal and stole a Gucci wristwatch belonging to Mr. Ojo.
In Willie John v The State (1967) NMLR 101, the Supreme Court held that there was nothing
wrong in charging the offences of housebreaking and stealing in different counts but that the
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usual practice is to join the two offences in one count in accordance with statutory forms. In so
doing, the drafter has not offended the rule against duplicity.
The Supreme Court in Humbe v State (1974) 5 SC 27 upheld the use of prescribed forms.
2. General deficiency of money over a period of time: Where a person is accused of breach of
trust or criminal misappropriation of money or fraudulent falsification of accounts or fraudulent
conversion at different times over a period of time he may be charged in a single count or charge
for all the offences without stating the particular date when each of the acts constituting the
offence was carried out. See The Queen v. Ugwu [1962] 1 All NLR 64.
S197 of ACJA on “Criminal Breach of Trust” provides that “where a defendant is charged with
criminal breach of trust or fraudulent appropriation of property, it is sufficient to specify the
gross sum in respect of which the offence is alleged to have been committed and the dates
between which the offence is alleged to have been committed without specifying particular items
or exact dates, and the charge so framed shall be deemed to be a charge of a single offence.”
Note:
i. The offence must have been committed against same person.

ii. The date within which the offence was committed must be stated in the count.
iii. The gross sum in respect of which the offence is alleged to have been committed must
also be stated in the count.
Example: While auditing the account of ‘X’ company it was discovered that various sums of
money totalling N20,000,000 were taken at different times by ‘A’ being the manager of ‘X’
company. ‘A’ may be charged in a single count for all the acts constituting the offence without
stating the specific dates when what amount was taken, e.g.
‘A’ between May 2015 and March 2016 at ‘X’ Company Limited located at No. 4 Akin Adesola
Street, Victoria Island, Lagos in the Lagos Judicial Division while entrusted with money
belonging to ‘X’ Company Limited fraudulently converted for your use various sum of money
totalling N20, 000,000.
Note: This exception applies to only misappropriation of money. It does not apply to other kinds
of misappropriation such as goods.
In R v Aniemeke (1961) All NLR 43, it was held that the offences alleged, being
misappropriation of goods (59 boxes of cigarettes) as distinct from money, ought to have been
contained in separate counts. The charge was held to be bad for duplicity.
See also Domingo v. R. (1963) 1 All NLR 81, R. v. Nwankwo (1962) All N. L.R. 64.
125
3. Identical offences committed in the same transaction: Where it is alleged that a person
committed identical offences in the course of same transaction, all the identical offences may be
charged in a single count and it will not be bad for duplicity. This exception is a creation of case
law. See Police v. Oyewusi [1952] WRNLR 281.
Example: ‘A’ corruptly demands money from each of three persons at the same time for the
purpose of attending to their common interest, ‘A’ may be charged in a single count for all the
acts of corruptly demanding money from each of the three persons.
4. Overt acts in an offence of treason or treasonable felony: Overt acts in an offence of

treason or treasonable felony may be charged together in a single count. It is also permissible to
include in a count all the other acts allegedly done by an accused person as manifestation of his
intention to commit treason or treasonable felony. See R. v. Omisade [1964] 1 All NLR 233.
Overt act means outward act, however innocent in itself, done in furtherance of a conspiracy,
treason, or criminal attempt. An overt act is usually a required element of these crimes- R. v.
Omisade.
EFFECT OF DUPLICITY
A charge that is bad for duplicity does not necessarily invalidate the charge or the trial except it
has occasioned a miscarriage of justice. See Awobotu v. The State (1976) 5 S.C. 49.
4. RULE AGAINST AMBIGUITY AND UNCERTAINTY
This rule states that where any of the requirements of a valid charge or information is violated
such charge or information is bad for ambiguity or uncertainty.
Example: A charge that fails to give an accused person a clear description of who is being
charged or the precise law under which the accused is to be punished or a clear description of the
offence that is being charged is said to offend the rule against ambiguity. See Okeke v. IGP
[1965] 1 All NLR 506.
4.0 EFFECT OF BREACH OF THE RULES OF DRAFTING
The general rule is that no error in stating the offence or the particulars required to be stated in
the charge and no to state the offence or those particulars shall be regarded at any stage of the
case as material unless the accused person was in fact misled by such error or omission –
Ss. 158 ACJL Lagos, 220 ACJA, 227 ACJL Kano.
S220 of ACJA on “Effect of Error” provides that “an error in stating the offence or the
particulars required to be stated in a charge or an omission to state the offence or those
particulars, or any duplicity, mis-joinder or non-joinder of the particulars of the offence shall not
126
be regarded at any stage of the case as material unless the defendant was in fact misled by the
error or omission.”
A charge that is in breach of the rules of drafting is a defective charge. A conviction that is
founded on a defective charge may be quashed on appeal unless it is shown that the defect is not
material enough to occasion a miscarriage of justice or to mislead the accused person.
Example, a charge that is framed on a non-existent law is defective and any conviction based on
such charge will be quashed on appeal; a conviction that is based on a charge that is bad for
duplicity may be quashed on appeal; a charge that offends the rule against misjoinder of offences
may be quashed on appeal only if the defendant is confused by the defect.
It is not in all cases where the charge is held to be bad for duplicity that the conviction will be
quashed or set aside. In Okeke v Police (1948) 1WACA 363 the appellate court agreed with
defence counsel’s submission that the charge was bad for duplicity but held that the defect did
not occasion miscarriage of justice.
But in R v Chima 10 WACA 223, the accused was alleged to have killed her twin babies and
was convicted on a single count of murder. It was held on appeal that the charge was bad for
duplicity.
QUESTIONS
Scenario 1
Audu Okon, Bola Madu and Abdullahi Dagogo conspired to rob Mr. and Mrs. Buba Tella on the
night of the Nigeria’s 2019 May Day celebration at their residence at No. 4, Ibru Road, Ikoyi
Lagos State. The gateman was thoroughly beaten before tying him to a pole with his mouth
strapped with a piece of dirty cloth. The trio successfully dispossessed Mr. Tella of the
N500,000.00 (five hundred thousand Naira) he had in the house. Abdullahi thereafter ordered
Mrs Tella to lead him to their guest room as he suspected that they had more money in the guest
room. Abdullahi raped Mrs Tella in the guest room threatening to kill her if she gave any
slightest sign of what was happening to her in the room.
Now answer the following questions:
1. Identify the court that has the jurisdiction to try the offenders as well as the prosecutorial
authority.
2. Identify the offences and the parties to the identified offences.
3. Draft the heading and the parties only.
127
4. How many charge sheets would you prepare? Give reasons for your answer.
Scenario 2
Mairo Stanley and Dan Ahmed were brought before Mallam Shehu Malami, Chief Magistrate I
upon a First Information Report for offences of theft and receipt of stolen property respectively
on the 7th and 18th October 2019 respectively. A goat belonging to Mallam Abdul Auta was
alleged to have been stolen from his residence at No 4, Funtua Road, Katsina State, while it was
tethered to a pole within the compound. It was also alleged that the goat was disposed off at the
‘Rago’ section of the Katsina Main Market, Katsina. The two accused persons denied the
allegations on the FIR whereupon the court requested the prosecutor to supply evidence in
support of the allegations. The Magistrate was satisfied that a prima facie case was disclosed by
the evidence adduced by the prosecutor against the two accused persons.
1. Who has the authority to draft the charge in the above scenario?
2. Describe (without drafting) the form and contents of the charge sheet.
Scenario 5
Due to the ban on rearing of cattle in the city of Abuja, Mr. Adamu Bawa informed Mallam
Miyetti Yusuf that he has acquired verse hectares of virgin land on the outskirt of Abuja which
he would exclusively lease to him for grazing of his cattle. In consideration of a two year lease of
the said grazing area Mallam Miyetti Yusuf gave Mr. Adamu Bawa, a calf in addition to
payment of the sum of N500,000 on 5th September 2019 at Adamu’s residence located at Adamu
Bawa Crescent, Lugbe, Abuja. It turned out that Miyetti was in fact duped.
Find below a draft of the heading and parties for a charge for filing in the High Court of FCT.
IN THE HIGH COURT OF ABUJA
IN THE LUGBE JUDICIAL DISTRICT
HOLDEN AT ABUJA
SUIT NO………
The State………………………….Complainant
AND
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Mr. Adam Buba …………….....Defendant
1. Which rule of drafting of charges is breached by the above draft?
2. Redraft as appropriate.
3. Discuss the effects of breach of the Rules of drafting charges.
129
WEEK 9 – CHARGES CONTD
OUTCOMES
1. Draft a charge in the various courts in Nigeria

2. Explain the effect of a defective charge
3. Amend a defective charge
CONTENTS
1. How to draft a charge in the Magistrates’ and State High court in the South
2. How to draft a charge in the Magistrates’ and State High court in the North
3. How to draft a charge in the Federal High Court/National Industrial Court
4. The effect of a defective charge
5. Amendment of charges
states, ACJL, Lagos, 2011, the ACJA, 2015, the Criminal Code, Penal Code and the
Constitution.
1. In the class tutor gives an overview-20 minutes

2. Students are grouped to make sample presentations on charges drafted for filing before
the Magistrates’ Court in Nigeria – 40 minutes
the State High Court in Nigeria – 40 minutes
the Federal High Court/National Industrial Court – 20 minutes
15 MINUTES BREAK
5. Students are grouped to discuss effect of conviction on a defective charge – 20 minutes

6. Students are grouped to make sample presentations on the procedure for amendment of
charges – 30 minutes
7. Students are grouped to discuss the procedure after amendment of charges – 30 minutes
130
SAMPLE DRAFT OF CHARGES
(1) MAGISTRATE COURT IN KANO (SAME WITH FCT MC EXCEPT FOR USING
COUNT INSTEAD OF CHARGE IN THE BODY)
IN THE MAGISTRATE COURT OF KANO STATE
IN THE KANO MAGISTERIAL DISTRICT
HOLDEN AT KANO
CHARGE NO: KN/MC/2022/1591
BETWEEN:
COMMISIONER OF POLICE - COMPLAINANT
AND
BUKA SUKA - DEFENDANT
I, CHRIS OZO AGBATA, Chief Magistrate Grade 1, do hereby charge you Buka Suka, as
follows:
CHARGE ONE:
That you, Buka Suka on or about the 20th day of March, 2022 at 10 Kano Street, Kano in the
Kano Magisterial District committed culpable homicide not punishable with death by causing the
death of A. B. and thereby committed an offence punishable under section 224 of the Penal
Code.
And I hereby direct that you be tried by this court on the said charge.
Dated this 22nd day of March, 2022.
---------------------------
CHRIS OZO AGBATA
Chief Magistrate Grade 1
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(2) MAGISTRATE COURT IN LAGOS
IN THE LAGOS MAGISTERIAL DISTRICT
HOLDEN AT LAGOS
CHARGE NO: LG/MC/2022/1591
BETWEEN:
COMMISIONER OF POLICE - COMPLAINANT
AND
COUNT ONE:
That you, Buka Suka on or about the 20th day of March, 2022 at 10 Lagos Street, Lagos in the
Lagos Magisterial District committed culpable homicide not punishable with death by causing
the death of A. B. and thereby committed an offence punishable under section 224 of the Penal
Code.
Dated this 22nd day of March, 2022.
---------------------------
Inspector Chris Ozo Agbata
Police Officer
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(3) HIGH COURT IN KANO
IN THE HIGH COURT OF KANO STATE
IN THE KANO JUDICIAL DIVISION
HOLDEN AT KANO
CHARGE NO: KN/HC/2022/1591
BETWEEN:
THE STATE - COMPLAINANT
AND
CHARGE ONE:
That you, Buka Suka on or about the 20th day of March, 2022 at 10 Kano Street, Kano in the
Kano Magisterial District committed culpable homicide not punishable with death by causing the
death of A. B. and thereby committed an offence punishable under section 224 of the Penal
Code.
Dated this 7th day of February, 2022.
---------------------------
Chris Ozo Agbata, Esq.,
Principal State counsel,
For the Attorney General,
Kano State
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(4) HIGH COURT IN LAGOS
HOLDEN AT LAGOS
BETWEEN:
THE STATE OF LAGOS - COMPLAINANT
AND
At the sessions of the Court holden at Ikeja on the 7th day of February 2022, the Court is
informed by the Attorney General of the state on behalf of the state that:
Buka Suka is charged with the following offence:
COUNT ONE:
STATEMENT OF OFFENCE
Murder, contrary to section 319 of the Criminal Code.
PARTICULARS OF OFFENCE
Buka Suka on or about the 17th day of May, 2019 at No. 10 Bola Street, Lagos in the Lagos
Judicial Division of Lagos State murdered ABC.
---------------------------
Principal State counsel,
For the Honourable Attorney General of Lagos State
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(5) FEDERAL HIGH COURT AND NATIONAL INDUSTRIAL COURT
IN THE FEDERAL HIGH COURT OF NIGERIA
HOLDEN AT LAGOS
CHARGE NO: LG/FC/2022/1591
BETWEEN:
FEDERAL REPUBLIC OF NIGERIA- COMPLAINANT
AND
CHARGE ONE:
That you, Buka Suka on or about the 20th day of March, 2022 at 10 Lagos Street, Lagos in the
Lagos Magisterial District committed culpable homicide not punishable with death by causing
the death of A. B. and thereby committed an offence punishable under section 224 of the Penal
Code.
---------------------------
Senior Law Officer,
For the chairman, NDLEA.
135
DEFECTIVE CHARGE
• A defective charge is a charge that suffers from noncompliance with rules of drafting
charges or for failure to adhere to both substantive and procedural law.
• a defective charge may rob the court of jurisdiction to try the charge, for instance a
charge that cites a non-existent law as the law under which the defendant may be tried.
S36(12) CFRN. Faith Okafor v Gov of Lagos (2016) LPELR 41066, Aoko v
Fagbemi.
WHEN TO OBJECT TO A DEFECTIVE CHARGE.
• An objection to a defective charge ought to be raised at the commencement of the trial,

especially before the defendant enters his plea. See S221 ACJA; Adio v The State
(1986) 3 NWLR Pt. 31 pg. 714.
• The onus lies on the defendant himself or his counsel to timeously raise an objection to a
defective charge once noticed on the charge sheet.
• Failure to so raise an objection on time, the defendant is deemed to have waived his right.
See Obakpolor v The State (1991)1NSCC 271; Alintah v FRN (2008)29 WRN 166.
HOW TO OBJECT TO A DEFECTIVE CHARGE.
• The defendant can file a motion on notice supported by affidavit stating the grounds of
the objection. See Obakpolor v State.
• The defendant can file a preliminary objection stating his grounds of objection.
• The defendant can file summons supported by affidavit before the Federal High Court.
See FRN v Adewumi (2007)10 NWLR Pt. 1042, pg. 399.
GROUNDS FOR OBJECTING TO DEFECTIVE CHARGE.
• Charge contains an offence not known to law.

• Where leave is required but has not been obtained.
• The charge violates fundamental rules of drafting charges.
• If the defendant has once been acquitted or convicted of the same offence.
• If the defendant is immune from criminal prosecution in respect of the particular charge
on account of legal incapacity, e.g., tender age.
• If the proof of evidence and witness statement discloses no link of the charge to the
defendant. See Abai v The State (2016) LPELR 40127.
136
EFFECT OF CONVICTION ON A DEFECTIVE CHARGE
• Where the defect in the charge sheet is of such nature as to mislead the defendant, any
conviction based on it will be set aside on appeal.
• In situation where there are overwhelming evidence at the trial against the defendant, the
appellate court may order a retrial.
• Where the defendant is not misled by such defects in the charge sheet the charge remains
valid. See Ss. 158 ACJL Lagos, 220 ACJA, 227 ACJL Kano, Ogbomor v State
(1985)2 SC.
AMENDMENT OF CHARGES
• Amendment of charge is inclusive of any alteration, addition, or substitution of an

existing charge with a new one.
• It is important to note that, the trial court and the prosecution have the power to alter,
amend or add to the charge or even frame a new charge at any time before judgment is
delivered.
• This is usually done upon discovery of any defect in the charge. See Ss 154 and 155(1)
ACJL Lagos, 216 (1) ACJA, 223 ACJL Kano.
• S 216(1) ACJA provides that “a court may permit an alteration or amendment to a charge
or framing of a new charge at any time before judgment is pronounced.”
• It must bear the same charge number and be against the same accused person(s). It cannot
be an independent separate charge, co-existing with the original charge. See State v
Chief Magistrate Mbashi. See also Okwechime v The Police (1956)-1 F.S.C. 73
• The Court should not permit the amendment of a charge if it will cause injustice to the
accused. R v Jennings 33 Criminal App. Rep. 143.
WHO CAN AMEND CHAERGES?
• The person who drafted the charges can amend same where he observes any defect on the
charge sheet, he has the discretion to amend the charge.
• In the south the law officers and police officers draft the charge and can amend same.
• While in the North and the Federal Capital Territory Abuja, the Magistrates and law
officers drafts the charges and can amend same. See section 216 ACJA, Nigerian
Airforce v James (2002)18 NWLR Pt. 798.
• The court before which the charge is brought can suo motu amend a charge, where the
charge upon which the defendant is to be tried is defective. See section 216(4) ACJA,
S154 ACJL Lagos, S223(3) ACJL Kano. See also Gboko v State (2007)17 NWLR PT.
1063 Pg. 272, State v Chief Magistrate Mbaise, Exparte Onukwue (1978) LRN 316.
137
• Note, the new charge should continue the life of the original charge, thus must bear same
ref no, parties etc. See Okwechime v IGP (1956) FSC 73
PROCEDURE FOR AMENDMENT.
1. Read and Explain: S216(2) ACJA, 155(2) ACJL Lagos, S223(3) ACJL Kano. S216 (2)
ACJA provides that “an alteration or amendment of a new charge shall be read and explained to
the defendant and his plea to the amended or new charge shall be taken.”
2. Plead to the New Charge: S217(1) ACJA, 156(1) ACJL Lagos, S223(3) ACJL Kano; the
new charge shall be read and explained to the accused person and he shall be asked to plead to
the charge. See Ss 156 & 157 ACJL; Ss 217, 218 & 219 ACJA. See also Youngman v. The
police (1959) 4F.S.C. 283; Okosun v. The State (1978) 2L.R.N.,314; Okegbu v. The State
(1981) 2 P.S.L.R. 14; Note that where a trial before a Magistrate Court was as a result of the
accused's election to be tried by the Magistrate Court, apart from a fresh plea, his consent should
also be sought afresh as to whether he still intends to be tried by the Magistrate Court. See
Youngman v. The Police; Jones v. The Police 5 F S.C. 38.
3. Confirm Readiness for Trial: S218(1) ACJA, S156(2) ACJL Lagos, S225(1) ACJL Kano.
The Court shall ask the accused whether he is ready to be tried on such charge. S156(2) ACJL
Lagos provides that “if the defendant declares that he is not ready, the Court shall consider the
reasons he may give and if proceeding immediately with the trial is not likely in the opinion of
the Court to prejudice the defendant in his defence or the prosecutor in his conduct of the case,
the Court may proceed with the trial as if the new or altered charge had been the original
charge.”
4. Adjourn if unready: S218(1) ACJA, S156(3) ACJL Lagos, S225(1) ACJL Kano: Either
the accused or the prosecutor shall be given adjournment or a new trial order if to proceed
immediately with the trial shall prejudice the accused in his defence or the prosecutor in the
conduct of his case. S156(3) ACJL Lagos provides that “if the new or altered charge is such that
proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the
defendant or the prosecutor, the Court may either direct a new trial or adjourn the trial for such
date as the Court may consider necessary.”
5. Endorsement: S218(2) ACJA, S156(4) ACJL Lagos, S225(2) ACJL Kano: The Court shall
endorse a note to order for amendment on the charge. S156(4) ACJL Lagos provides that where
a charge is so amended, a note of the order for amendment shall be endorsed on the charge, and
the charge shall be treated for the purpose of all proceedings connected with it as having been
filed in the amended form.
6. Recall of witness: S219 ACJA, S157 ACJL Lagos, S226 ACJL Kano: The prosecutor and
the accused shall be allowed to recall or re-summon any witness who may have been examined
138
and examine or cross-examine such with reference to such amendment. S219 ACJA provides
that “where a charge is altered, amended or substituted after the commencement of the trial, the
prosecutor and the defendant shall be allowed to recall or re-summon and examine any witness
who may have been examined and to call any further witness, provided that such examination
shall be limited to the alteration, amendment or substitution made.
Note: where the accused is unrepresented by counsel, the Court must specifically inform him of
this right. If he is represented, the Court is not obliged to inform him. See Shoaga v. R (1952) 14
W.A.C.A.22. Contrast Fayiga v. The Police (1973):5 C.C.H.C.H35 Osuolale v. The State
(1991) (158 NWLR (Pt. 212) 770.
AMENDMENT OF CHARGE AFTER THE DEFENDANT’S PLEA HAS BEEN TAKEN.
• The framer of a charge, the trial judge or the magistrate in the North who drafts the
charge is at liberty to amend the charge where a defect is noticed after the defendant’s
plea is taken. See S216(3) ACJA, Ss 154,155 ACJL
• The law has not prescribed the need for formal application to be made before the
amendment is made. Simply oral application may suffice. See section 155(3) ACJL, See
Uguru v State (2002)9 NWLR Pt. 771, pg. 90.
• Note: where amendment is made before the defendant enters his plea, the court is not
duty bound to comply with post amendment requirements. But where the plea has been
taken, the court is under obligation to comply with post amendment requirement.
POST AMENDMENT REQUIREMENT.
• Procedure
1. Read and explain the new charge to the defendant. S216(2) ACJA, 155(2) ACJL Lagos,
S223(3) ACJL Kano. S216 (2) ACJA
2. The defendant is to enter a fresh plea on the amended charge. S217(1) ACJA, 156(1)
ACJL Lagos, S223(3) ACJL Kano
3. Adjourn if proceeding immediately with the trial will prejudice the defence or
prosecution S218(1) ACJA, S156(3) ACJL Lagos, S225(1) ACJL Kano
4. Recall of witness(es) S219 ACJA, S157 ACJL Lagos, S226 ACJL Kano
5. Endorsement S218(2) ACJA, S156(4) ACJL Lagos, S225(2) ACJL Kano
EFFECT OF FAILURE TO COMPLY WITH POST AMENDMENT PROCEDURE.
• Failure to read and explain to the defendant the amended charge before his plea is taken
will render the trial a nullity. See the case of Ayodele v State (2011)6 NWLR Pt. 1243,
pg. 309.
139
• Failure to avail the defendant reasonable time and facilities to prepare for his defence by
way of adjournment where need be may vitiate the proceedings. See S36(6)(b) CFRN;
See also Gokpa v IGP (1961) ALL NLR 432.
• Generally, failure to comply with post amendment procedure which eventually occasions
miscarriage of justice to the defendant will vitiate the proceedings. See ECHEAZU V
C.O.P(1974)2 SC 55.
• Failure to comply with the statutory requirements renders the trial null, void and of no
effect. The appeal Court, on appeal against conviction will set the conviction aside.
However, where there are sufficient or overwhelming evidence at the trial, the appellate
Court may order a retrial. See also Echeazu v. The C.O.P (1974}2 S.C. 55.
QUESTION 1.
Anthony Baka, Samuel Doga and Michael Jagwa were former employees of Mr Lanre shittu of
1, Churchgate street, Victoria Island, Lagos who were sacked in February, 2019 by their
employer Mr Lanre Shittu for laziness and persistent lateness to work.
On the 11th of March 2019, the trio jointly agreed at No.10 Agbabiaka street Ajegunle, Lagos to
kill Mr. Lanre Shittu in his house. About three hours before their planned attack, they decided to
visit a local wine seller (Ogogoro joint) at Obalende within the Lagos metropolis. While they
were busy enjoying their drinks, Michael Jagwa excused himself to visit the toilet but sneaked
into the house of his ex-girlfriend Tina Giwa that is situated behind the Ogogoro joint and set the
house ablaze completely. After that he returned back to join his friends at the joint and they all
proceeded to Mr Lanre’s house.
Anthony Baka stabbed Mr Lanre with a jack knife on the chest and he died instantly, while
Michael jagwa and Samuel Doga took turn and had sexual intercourse with Cynthia, Mr Lanre’s
12 years old daughter. Two weeks after the incidence, they were apprehended by the police.
The Law; Criminal Code Laws of Lagos state
172. Any person who unlawfully assaults another is guilty of a misdemeanour, and is liable, if no
greater punishment is provided to imprisonment for one year.
233. Any person who conspires with any other person to kill any person, whether such person is
in the State or elsewhere, is guilty of a felony, and is liable to imprisonment for fourteen years.
339(1) Any act which causes damage to public property or property of another and which is done
without his consent is unlawful, unless it is authorized or justified or excused by law and it is
immaterial If the person did not know the property is public property or the property of another.
140
(2) when a lawful act which causes damages to property, is done with intent to defraud any
person, It becomes an unlawful act
(6) the term ‘damage’ used I relation to property includes loss, destruction or alteration of
property.
(7) A property is damage when the property has been rendered inoperative or imperfect for the
purpose for which the property was procured such as to impose on the owner the need to expnd
money or effort in restoring it to the original state.
341. Any person who negligently causes fire to any of the things mentioned in Section 339 of
this Law is guilty of a felony and is liable to imprisonment for seven years.
223. Subject to the provisions of any other Law, a person who commits the offence of murder
shall be sentenced to death.
260 (1) Any man who has unlawful sexual intercourse with a woman or girl, without her consent,
is guilty of the offence of rape and liable to imprisonment for life.
Answer the following Questions
1. Assuming the Attorney General of Lagos has instructed you to draft a charge for filing against
them at the State High Court, draft the charge(s)
2. Assuming the charge is defective what will be its effect upon conviction?
3. In numbered paragraphs, set out the procedures for post amendment of charges.
QUUESTION 2
Redraft this charge
IN THE IKEJA MAGISTERIAL DIVISION
HOLDEN AT LAGOS
CASE NO…………
BETWEEN
COMMISSIONER OF POLICE……………………………PLAINTIFF
141
AND
PETER OLASUKANMI……………………………………ACCUSED
Statement of offence;
Arson punishable under section 341 of the criminal code law of lagos State.
Particulars of offence;
That you, Peter Olasukanmi on the 5th of January 2019 at Obasanjo Street, Ikeja Lagos in the
Ikeja Magisterial division set ablaze the house of one Akin Adelabu, causing damages to his
properties and thereby committed an offence of Arson
Dated this …………………….Day …………..2019
Insp. John marshall
Investigating police Officer
State Police Command Lagos
QUESTION 3.
REDRAFT THIS CHARGE
IN THE FEDERAL HIGH COURT OF NIGERIA
HOLDEN AT ABUJA
CASE NO…..
BETWEEN
FEDERAL GOVERNMENT OF NIGERIA-----COMPLAINANT
142
AND
NELSON OKORO ……….......................................ACCUSED PERSON
DAUDA BALA
CHARGE 1
I, Justice Bola Sabo, judge of the Federal high Court hereby charge you Nelson Okoro and
Dauda Bala as follow;
That you Nelson okoro and Dauda Bala on 10th May 2020 at No. 2 Raskimono street in Apo
within Abuja judicial Division of federal Capital territory were found to be in possession of a
hard drug know as Cocaine contrary to section 11(b) of National Drug Law Enforcement Agency
Act 2004
I herby direct that you be tried on he said charge by this court. Being in Possession of hard drugs
Dated this …… day of……2020
…………………………
Lekan Ogunwale
Chief legal officer
For the Chairman NDLEA.
QUESTION 4
Redraft this charge.
IN THE MAGISTRATE COURT OF FEDERAL CAPITAL TERITORY
IN THE ZUBA JUDICIAL DISTRICT
143
HOLDEN AT ABUJA
CASE NO…….
BETWEEN
COMMISSIONER OF POLICE…………………………………PETITIONER
AND
SALISU MAIKASUWA……………………………………………ACCUSED
Statement of offence
Abduction contrary to section 275 of the Penal Code law of Federal Capital Territory Abuja.
Particulars of offence;
That you Salisu Maikasuwa on the 15th of February 2020 in the Zuba judicial district abducted
one Musa Abubakar and thereby committed an offence of abduction punishable under section
275 of the Penal code law of Federal Capital Territory Abuja. You are hereby charged by the
Chief Magistrate of Zuba, Mr Rilwanu Rotimi wth the above mentioned offence.
And I hereby direct you to take your plea.
Dated this …………………….Day …………..2020
……………………………
Investigating Police Officer
FCT Police Command
Garki II Abuja Investigating P
144
WEEK 10 – BAIL PENDING TRIAL (based on ********** scenario)
OUTCOMES
a) Identify the nature and types of bail – bail by the police; bail by court pending trial and;
bail by court pending appeal
b) Explain the methods of applying for bail
c) Identify factors that govern grant of bail
d) Explain the procedure for applying for bail after it has been refused by the Magistrate.
e) Draft application for bail before the court.
f) Explain the terms and conditions upon which bail may be granted.
g) Identify the circumstances when bail may be revoked.
CONTENTS
1. Nature and types of bail.

2. Power of the Magistrate court to grant bail
3. How to apply for bail to the High Court after refusal by the Magistrate
4. The procedure for bail application in the High Court
5. Factors that govern grant of bail by the court.
6. Terms and conditions upon which bail may be granted
7. Revocation of bail.
states, ACJL, Lagos, 2011, the ACJA, 2015, the Criminal Code, Penal Code, the Constitution
and Evidence Act,2011.

2. Students are grouped to discuss the procedure for applying for bail before the magistrate
court – 30 minutes
3. Students are grouped to discuss and make sample presentations on the procedure for
applying for bail to the High Court after an application for bail has been refused by the
Magistrate - 30 minutes
4. Students are grouped to discuss and make sample presentations on the factors that guides
the court when considering an application for bail - 30 minutes
145
15 MINUTES BREAK
5. Students are grouped to discuss and draft motion/summons for bail before the High court
together with a supporting affidavit based on a scenario- 40 minutes
6. Students are grouped to move the bail application before the High court based on the
*********scenario- 30 minutes
7. Students discuss in groups and make presentations on the terms and conditions upon
which bail may be granted and the circumstances under which bail may be revoked. - 30
minutes
8. Assessment. - 20 minutes.
DEFINITION OF BAIL PENDING TRIAL
• It is the temporary release of a defendant from custody to sureties on conditions given to

ensure his attendance in court pending the determination of the case. See Suleiman v
COP (2008) 8 NWLR (Pt.1089)298 @ 322; Onyebuchi v. FRN (2009) All FWLR (pt.
458) 341.
• Note that defendant may be granted bail without bringing a surety.
BAIL AND CONSTITUTIONAL RIGHTS
• Bail is a constitutional right of the Defendant because of his right to personal liberty. See
S35 CFRN which provides as follows:
• (1) Every person shall be entitled to his personal liberty and no person shall be deprived
of such liberty save in the following cases and in accordance with a procedure permitted
by law -
(a) in execution of the sentence or order of a court in respect of a criminal offence

of which he has been found guilty;
(b) by reason of his failure to comply with the order of a court or in order to
secure the fulfilment of any obligation imposed upon him by law;
(c) for the purpose of bringing him before a court in execution of the order of a
court or upon reasonable suspicion of his having committed a criminal offence,
or to such extent as may be reasonably necessary to prevent his committing a
criminal offence;
146
(d) in the case of a person who has not attained the age of eighteen years for the
purpose of his education or welfare;
(e) in the case of persons suffering from infectious or contagious disease, persons
of unsound mind, persons addicted to drugs or alcohol or vagrants, for the
purpose of their care or treatment or the protection of the community; or
(f) for the purpose of preventing the unlawful entry of any person into Nigeria or
of effecting the expulsion, extradition or other lawful removal from Nigeria of
any person or the taking of proceedings relating thereto:
Provided that a person who is charged with an offence and who has been detained in
lawful custody awaiting trial shall not continue to be kept in such detention for a period
longer than the maximum period of imprisonment prescribed for the offence.
(2) Any person who is arrested or detained shall have the right to remain silent or avoid
answering any question until after consultation with a legal practitioner or any other
person of his own choice.
(3) Any person who is arrested or detained shall be informed in writing within twenty-
four hours (and in a language that he understands) of the facts and grounds for his arrest
or detention.
(4) Any person who is arrested or detained in accordance with subsection (1) (c) of this
section shall be brought before a court of law within a reasonable time, and if he is not
tried within a period of -
(a) two months from the date of his arrest or detention in the case of a person who
is in custody or is not entitled to bail; or
(b) three months from the date of his arrest or detention in the case of a person
who has been released on bail, he shall (without prejudice to any further
proceedings that may be brought against him) be released either unconditionally
or upon such conditions as are reasonably necessary to ensure that he appears for
trial at a later date.
(5) In subsection (4) of this section, the expression "a reasonable time" means -
(a) in the case of an arrest or detention in any place where there is a court of
competent jurisdiction within a radius of forty kilometres, a period of one day;
and
147
(b) in any other case, a period of two days or such longer period as in the
circumstances may be considered by the court to be reasonable.
(6) Any person who is unlawfully arrested or detained shall be entitled to compensation
and public apology from the appropriate authority or person; and in this subsection, "the
appropriate authority or person" means an authority or person specified by law.
(7) Nothing in this section shall be construed -
(a) in relation to subsection (4) of this section, as applying in the case of a person
arrested or detained upon reasonable suspicion of having committed a capital
offence; and
(b) as invalidating any law by reason only that it authorises the detention for a
period not exceeding three months of a member of the armed forces of the
federation or a member of the Nigeria Police Force in execution of a sentence
imposed by an officer of the armed forces of the Federation or of the Nigeria
police force, in respect of an offence punishable by such detention of which he
has been found guilty.
BAIL BY THE POLICE
• Going by the provisions of S35 (4) & (5) CFRN, the Police cannot, except in capital or
other serious offences, detain a person beyond 48 hours in any case.
To detain a suspect without arraignment beyond the time stipulated by the constitution
has been held to be unconstitutional. See Danfulani v EFCC (2016)1 NWLR
(Pt.1493)223 at 247.
• Suspect arrested for non-capital offence should be arraigned in court within 1 day or 2
days if there is no court within 40 kilometers radius. See S35(4)(5) & (7) CFRN; S.30
(1) ACJA; S.17 (1)(2) ACJL Lagos, S49(1) ACJL Kano.
Note that in Eda v Police (1982) 3 NCLR 219, the court had declared the provisions of
S.17 of the CPL as well as S.27 Police Act as null and void for being inconsistent with
S.35 (4) & (5) CFRN. However, it must also now be noted that the Police Act 2020 in
Section 62 has now remedied the anomaly by being in conformity with the with the
CFRN.
148
• If the suspect is not released on bail within 24hours for commission of a non-capital
offence, he should apply to court for release. See S64(1) PA, S32 (1) ACJA; S.18 (1)
ACJL Lagos, S51 ACJL Kano.
• Note that where there is more than one suspect detained at the Police Station and they are
represented by the same counsel a single application by their counsel listing their names
and names of their sureties suffices.
PROCEDURE FOR APPLICATION
• No specific procedure is provided by the law

• In practice it is usually applied for through a formal letter addressed to the officer in
charge of the station where the suspect is detained by a person who is ready to stand as
surety for the suspect.
• In the letter the surety undertakes to produce the suspect at the time and place required.
• The letter may be written by a counsel for the surety.
• Counsel must not sign bail bond. but may certify the surety as a fit and proper person to
stand as surety for the suspect.
• In some police stations, a bail may be applied for by filling a printed form prepared by
the police for that purpose.
• An oral application may also be entertained.
• Police may release on bail if satisfied that the proper investigation of the case will not be
prejudiced by the grant of the bail and no risk of the suspect escaping justice exists.
149
V. Sample Draft of Police Bail Application
C. O. AGBATA & CO
BARRISTERS AND SOLICITORS
NO 15 SHEVRON DRIVE
IKOYI, LAGOS STATE.
(coagbata@coagbata.com)
Our Ref: Your Ref:
15th August, 2022
The Divisional Police Officer,

Police Divisional Headquarters,
Lagos,
Lagos State.
Sir,
We are solicitors to Mrs. Johnson Our Client, of No.5 Johnson Street, Ikoyi, Lagos State who is
currently under arrest and detention at your station.
We apply for her bail pending you’re the arraignment of our client. Our client pledges to appear
at the station anytime requested by you.
We recommend Mr Peters Dibia of No. 15 Broad Street Lagos Island, Lagos State, an in-law to
our client, as a surety for our client’s bail. He is available and willing to take the suspect on bail
and promises to fulfil all the bail conditions.
Thanks for the anticipated cooperation.
Yours faithfully,
………………………….
C. O. Agbata Esq.
(Principal Partner)
For: C.O. Agbata & Co.
150
COURT BAIL PENDING TRIAL
• All offences are bailable. The Court is vested with power to admit defendant to bail
pending trial. See S158 ACJA; S115(1) ACJL Lagos, S168 ACJL Kano.
However, “a defendant charged with any offence punishable with death shall not be
admitted to bail, except by a Judge of the High Court under exceptional circumstances.”
S161(1) ACJA, S115(1) ACJL Lagos, S171(1) ACJL Kano.
• It is generally based on the discretion of the court which must be exercised judicially and
judiciously. See Ukatu v COP (2001) FWLR (Pt.66)755.
NATURE OF THE OFFENCE AND GRANT OF BAIL
• The grant of bail by the Court depends on the nature of the offence. See Ss162-163
ACJA, S115 ACJL Lagos, Ss172-173 ACJL Kano.
• Bail is not ordinarily granted in respect of persons accused of capital offences. See S.161
(1) ACJA; S.115 (1) ACJL., but can be granted in exceptional circumstances.
• The nature of the offence will determine the court with power to grant bail. See S.161 (1)
ACJA; S.115 (1) ACJL Lagos, S171(1) ACJL Kano.
INSTANCES WHEN BAIL MAY BE GRANTED IN CAPITAL OFFENCES
S161(2) ACJA provides that for the purpose of exercise of discretion in subsection (1) of
this section, “exceptional circumstance” includes:
(a) ill health of the applicant which shall be confirmed and certified by a qualified
medical practitioner employed in a Government hospital,
provided that the suspect is able to prove that there are no medical facilities to take care
of his illness by the authority detaining him;
(b) extraordinary delay in the investigation, arraignment and prosecution for a period
exceeding one year; or
(c) any other circumstances that the Judge may, in the particular facts of the case,
consider exceptional.
1. Ill health
2. Extraordinary delay in arraignment (above 1 year)
3. Other exceptional circumstances as the court may hold.
151
See also S171(3) ACJL Kano.
BAIL WHERE A DEFENDANT IS CHARGED WITH OFFENCE EXCEEDING THREE

YEARS IMPRISONMENT
S162 ACJA provides that “a defendant charged with an offence punishable with
imprisonment for a term exceeding three years shall, on application to the court, be released
on bail except in any of the following circumstances:
(a) where there is reasonable ground to believe that the defendant will, where released on
bail, commit another offence;
(b) attempt to evade his trial;
(c) attempt to influence, interfere with, intimidate witnesses, and or interfere in the
investigation of the case;
(d) attempt to conceal or destroy evidence;
(e) prejudice the proper investigation of the offence; or
(f) undermine or jeopardize the objectives or the purpose or the functioning of the criminal
justice administration, including the bail system.
CAN A MAGISTRATE COURT GRANT BAIL IN CAPITAL OFFENCE?
• M. C cannot grant bail in capital offences. S161(1) ACJA, S115(1) ACJL Lagos,
S171(1) ACJL Kano.
▪ Magistrate may grant bail in cases it has no jurisdiction to try during a remand
proceedings. See Ss 293 & 295 ACJA, S264 (5) ACJL Lagos.
▪ QUERE: Does it extend to Capital offences?

▪ The answer is apparently NO because of the provision of ACJA in S295 where bail by
the Magistrate is made subject to the provisions in sections 158-188 of ACJA. It
provides that “The court may, in considering an application for remand brought under
section 293 of this Act, grant bail to the suspect brought before it, taking into
consideration the provisions of sections 158 to 188 of this Act relating to bail.”
Similarly, S264(5) ACJL Lagos provides that, bail is where applicable. It provides that
“where applicable, a Magistrate shall grant bail to any person brought before him
152
pursuant to subsection (1) of this section pending the arraignment of such person before
the appropriate Court or Tribunal.”
BAIL WHERE A DEFENDANT IS CHARGED WITH OFFENCE NOT EXCEEDING

THREE YEARS IMPRISONMENT
• S163 ACJA provides that; “in any other circumstance other than those referred to in
sections 161 and 162 of this Act, the defendant shall be entitled to bail, unless the court
sees reasons to the contrary.” Also, S115(3) ACJL Lagos, S173 ACJL Kano.
FACTORS TO BE CONSIDERED FOR GRANT OF BAIL
1. In granting bail pursuant to S35 CFRN, the Supreme Court has held that the court must
balance the interest of the individual citizen against that of the larger society. See
Dokubo-Asari v FRN (2007) All FWLR (Pt.375)588.
2. The nature of the offence and the severity of the punishment prescribed. See Abacha v
State (2002) FWLR (Pt. 98)863; Anaekwe v. COP (1995) 6 NWLR (pt. 403) 564,
3. The nature, character and quality of evidence against the accused; Abacha v. The State
(2002) 2 F.W.L.R (Pt 98) 863; Bamaiyi v. State (2001) 4 SCNJ 103
4. Whether the accused will appear to stand for his trial (whether or not he will jump bail).
See Dokubo-Asari v. Federal Republic of Nigeria.
5. The possibility of the accused interfering with further investigation and/or prosecution of
the case if granted bail; See Bamaiyi v State (2001)4 SCNJ 103, Dantata v. COP (1958)
NNLR 3, Dambaba v. State (2000) 14 NWLR (Pt. 687) 396.
6. The Prevalence of the Offence. See Felix v. State (1978) LRN 308; Ajudua v. Federal
Republic of Nigeria (2005) All FWLR (pt. 246) 1274, Ani v. State (2002) 1NWLR (Pt
747).
7. Detention for the protection of the defendant. See Bamaiyi v. State, Nnogu v. State
(2002) FWLR (pt. 103) 482.
8. The possibility of the defendant committing the same or similar offence while on bail.
See R. vs. Jammal.
9. The criminal record of the accused, See Eyu v. The State (1988) 2 NWLR (pt.78) 602;
Ajudua v. FRN (2005) All FWLR (Pt.246)1274.
10. Ill-Health. See Ani v. State (2001) FWLR (Pt.81)1715; Abacha v State (2002) FWLR
(Pt.118)1224, Fawehinmi v. The State (1990) 1 NWLR 486.
11. The availability of the defendant to stand trial. See Bamaiyi v State (2001)4 SCNJ 103.
Note that bail is not to be refused as a form of punishment to the defendant. Dogo v
Commissioner of Police (1980) NCR 14.
153
APPLICANT RELYING ON ILL-HEALTH TO ESTABLISH THE FOLLOWING…
1. That the ill-health may affect other inmates in the detention centre,
2. Convincing medical report by a specialist in that field of medicine in support of the claim
of the applicant;
3. That the ill-health cannot be managed by the medical unit in the clinic as a result of
inadequate medical facilities or expertise.
See Ofolue v Federal Republic of Nigeria (2005) 3 NWLR (Pt. 913)571.
The affidavit in support of the bail application must show the following:
(a) That the ill-health is likely to affect other inmates where the applicant is detained.
Consider whether the application may be granted where the illness is not contagious.
(b) That there is a positive and cogent medical report issued by an expert pointing
irresistibly to the existence of the illness (preferably a government hospital-S.161(2)
ACJA).
(c) That the prison lack adequate medical facilities to treat the applicant’s ailment.
Note: The Court must not refuse the accused bail as a punishment. See Dogo v. The COP
(1980) 1 N.C.R. 14; this is because the accused is usually presumed innocent until his guilt is
proved. See Eyu v. The State (1988) 2 NWLR (pt. 78) 602. S36(5) CFRN.
Note: The accused is only required to enter into recognizance in the sum fixed by the Court. It is
not a requirement of the law that he should deposit money before bail is granted. See Onuigbo v.
The C.O.P (1967) N.M.L.R 44: Eyu vs. The State (1988) 2 NWLR (pt. 78) 602.
REFUSAL OF THE MAGISTRATE TO GRANT BAIL
Where a Magistrate to whom application for bail has been made refused or neglected to grant
bail, application could be made to a Judge of High Court who shall have power to grant such
bail. See S119 ACJL Lagos; Dogo v. The COP (Supra).
Note that once a Court has refused to grant bail, application for bail should be filed at a higher
Court, not in any Court of the same co-ordinate jurisdiction. See The State v. Uwa (1976) 2
E.N.L.R 143; Anaekwe v. COP (1995) 6 NWLR (pt. 403),564.
CAN APPLICATION FOR BAIL BE MADE ORALLY?
154
• Bail Application to court may be made orally or in writing. See S32(3) ACJA; S.18 (3)
ACJL Lagos; Abiola v FRN (1995)1 NWLR (Pt.370)155.
▪ Note that whether it will be oral or in writing depends on the court seized of the matter.
PROCEDURE FOR BAIL APPLICATION AT THE MAGISTRATE COURT
• There is no procedure stated under any of the laws.

• The ACJA, ACJL, silent on any procedure.
• It is usually made orally after the plea of the defendant, unless otherwise directed by the
presiding officer.
• This is the procedure applicable in all jurisdictions in Nigeria. See Dogo v COP (1980) 1
NCR 14.
PROCEDURE FOR BAIL APPLICATION AT THE HIGH COURT IN THE NORTH
• Application is by Motion on Notice

• Supported by affidavit, and
• Written address (requirement of practice).
See Tanko v COP (1986)1 QLRN; S.35 HCL Northern Nigeria.
PROCEDURE FOR BAIL APPLICATION AT THE HIGH COURT IN LAGOS
• Application is by Summons
But see S262 ACJL Lagos which provides that “where a matter arises in respect of which no
adequate provisions are made in this Law, a Court shall adopt such procedure as will in its view
do substantial justice between the parties concerned.”
Simidele v COP (1966) NMLR 116; State v Uwah (1976) 2 FNR 143.
PROCEDURE FOR BAIL APPLICATION AT THE HIGH COURT IN FCT (ABUJA)
• Application is by Motion on Notice

See S492 (3) ACJA. Tanko v COP (1986)1 QLRN;

155
PROCEDURE FOR BAIL APPLICATION AT THE FEDERAL HIGH COURT
See S158 ACJA which empowers the court to grant bail without providing specific procedure to
bring the application.
PROCEDURE FOR BAIL APPLICATION AT THE NATIONAL INDUSTRIAL COURT
See S158 ACJA which empowers the court to grant bail without providing specific procedure to
bring the application. S.254F (1) & (2) CFRN.
PROCEDURE FOR BAIL APPLICATION AT HC AFTER REFUSAL BY MC IN THE

SOUTH & LAGOS
• Summons
• Affidavit in support of summons for bail
• Certified true copy of the charge sheet
• Certified true copy of the ruling of the lower court refusing the initial application, and
• Note: it’s a fresh application, not an appeal.
See Simidele v COP; State v Uwah (1976) 2 FNR 143 SC; S.119 ACJL Lagos; Ss.158 &
168(b) ACJA.
PROCEDURE FOR BAIL APPLICATION AT HC AFTER REFUSAL BY MC IN THE

NORTH & FCT
• Motion on Notice/Summons
• Affidavit in support of summons for bail
• Certified true copy of the charge sheet
• Certified true copy of the ruling of the lower court refusing the initial application, and
• Note: it’s a fresh application, not an appeal.
156
See. Achadu v State (1981) 1 NCR 16; S.35 High Court Law NN.
PROCEDURES AT THE VARIOUS COURTS

MC all over Orally as no provision in law
HC North/FCT • Motion on Notice
• Affidavit
• Written address
FHC. NIC, HC Lagos • Summons

• Affidavit
• Written address
HC North/FCT after MC refusal • Motion on Notice/Summons

• Affidavit in support of summons
• CTC of the charge sheet
• CTC of the ruling of the lower court
refusing the initial application, and
• Written address
NB: it’s a fresh application, not an appeal.

FHC. NIC, HC Lagos • Summons
• Affidavit in support of summons
• CTC of the charge sheet
• CTC of the ruling of the lower court
refusing the initial application, and
• Written address
NB: it’s a fresh application, not an appeal.

Application for Bail Pending Appeal • Motion on notice
• Affidavit
• Written address
Should be separate motion paper where more

than one applicant despite having same
counsel but where one motion paper is used, it
must separate affidavits.
This doesn’t not apply to bail pending trial.

Variation/Review of Bail • Motion on Notice/Summons
157
• Affidavit
• Written address
EFFECT OF NON-COMPLIANCE WITH PROCEDURE
The trend of cases supports the proposition that the Court will not punish a person for not strictly
complying with procedural rules. If a person has a right, it does not really matter how he
enforces it. The Court will look into the justice of the case since rules of procedure cannot
override the rule of substantive justice. See Falobi v. Falobi (1976) 1 N.M.L.R 169; Bello v.
The Attorney-General Oyo State (1986) 12 S.C.I
IMPLICATION OF THE ACCUSED JUMPING BAIL
S184 ACJA provides that “where a defendant who is bound by a recognizance or bond to appear
before a court or police station does not so appear, the court may issue a warrant for his arrest.”
BAIL PENDING APPEAL
Once an accused is convicted, he is no longer presumed innocent. He becomes a prisoner.

Although he may apply for bail pending the hearing of his appeal, such a bail is usually rarely
granted. The Court only grants bail upon special circumstances being shown by the prisoner.
WHAT CONSTITUTES SPECIAL CIRCUMSTANCE?
The categories may not be closed. It will therefore depend on peculiar circumstances of each
case. The following situations have been pronounced upon by the Court to constitute special
circumstances:
(1) Where the applicant will be of assistance for the preparation of the real case for
appeal or that the real case is so complex that there is obvious need for close consultation
between the applicant and his legal practitioner. See R v. Starkie 24 Cr. App Rep. I at 2.
(2) Where to refuse the application will put the applicant's health in serious jeopardy,
e.g., a hypertensive patient who needs constant medical attention and who cannot be
attended to in custody. See Fawehinmi v. The State (1990) 1 N.W.L.R 486;
Chukwunyere v. The C.O.P. (1975) 5 E.C S.L.R. 44
158
(3) Where a sentence is manifestly contestable, refusal of bail in such circumstances

could inflict a greater injury on the applicant who may well have served an illegal
sentence. See Fawehinmi v. The State (1990) 1 N.W.L.R 486 (supra).
(4) The Court also considers the length of time which must elapse before the appeal can
be heard and the length of sentence appealed against. Where the accused may have
served the sentence before his appeal can be heard, bail may be granted. See R v.
Tunwase (1935) 2 W.A.C.A 236; Okoroji v. The State (1990) 6 E.N.L.R 509 (Pt 157).,
Jennifer Madike v. The State (1992) 8 NWLR (Pt. 257), 85, Obi v. State (1992) 8
N.W.L.R (Pt 257), 76.
(5) Where the appellant was granted bail in the course of trial and he did not jump bail.
See Munir v. F.R.N (2009) All FWLR (Pt. 500) 775; Olamolu v. F.R.N. (2009) All
FWLR (Pt. 485) 1800.
(6) Where the appellant is a first-time offender. See Buwai v. State (2004) All FWLR
(Pt. 227) 540.
Procedure for Application:
Application for bail pending appeal is done by motion on notice supported by affidavit and not
summons. See Aroyeun v. C.O.P (1968) NMLR 433.
Where two or more accused persons are jointly tried and convicted, even where they are
represented by the same counsel, it is important that separate motion paper and affidavit be filed
for each of the applicant. See Afigbu v. C.O.P (1975) NNLR 128.
Where however the counsel elects to file one motion paper for two or more applicants, yet the
applicants must depose to separate affidavits.
TERMS OF BAIL
By terms of bail, we mean security for the temporary release of the offender/defendant/accused
on security for his appearance on a named date for further interrogation or trial. See S116 (1)
ACJL. Therefore, it entails the conditions upon which bail is granted which must be fulfilled
before the offender/defendant/accused will be released from custody. The terms of bail are
usually spelt out by the Judge when granting bail depending on the circumstances of the case and
the status of the individual applying for bail. See S165 (1) ACJA; S116 (1) ACJL, Dogo v
COP.
159
Terms upon which bail may be granted are:
1. Defendant’s recognizance: Bail may be granted on this term when the person applying
for bail appears to be a person of repute and the Court reasonably believes that such
person will appear to face his trial or jump bail.
2. Defendant executing a bond: Depending on the circumstances of the case the Court may
make an order for the execution of bond for a fixed sum before the applicant for the bail
will be released from custody. The bond is an undertaken by the applicant that he will
appear to face his trial. Where the applicant fails to appear as at when due, the sum in the
bond may be forfeited, the bail revoked and bench warrant issued for his arrest. See S.184
ACJA, S194 ACJL Kano.
3. Producing a surety to execute a bond in a specified sum: Based on the discretion of

the Court considering the bail application and depending on the circumstances of the
case, the Court may require an applicant for the bail application to produce a
surety/sureties. See S118 (1) ACJL Lagos; S.167 (1) ACJA, S177(1) ACJL Kano. Such
surety/sureties are to execute a bond in a specified sum in favour of the State which is an
irrevocable undertaking to forfeit the sum stated in the event that the applicant jumps
bail, unless he shows good reason why he should not be made to forfeit the sum. See also
S184 ACJA, S194 ACJL Kano.
4. Deposit of money in lieu of bond: The Court may suo motu direct an applicant for bail
to deposit money in lieu of entering into a bond. See S116 (2) ACJL Lagos; S. 165 (2)
ACJA, S175(2) ACJL Kano. The applicant could also make such a request and the
Court will consider it especially where the applicant may find it difficult to get a surety.
Where such money is deposited, it must be kept in an interest yielding account or be
handed to the Court registrar. S.136 ACJL Lagos; S. 185 ACJA, S195 ACJL Kano.
Upon the grant of bail by the Court and subsequent fulfilment of the bail conditions, the
Court will immediately issue a written order of release to the officer in charge of the
prison or such other place of detention which will facilitate the detainee’s immediate
release. See S171 ACJA; S. 124 ACJL Lagos, S181 ACJL Kano.
VARIATION/REVIEW OF BAIL TERMS
Judge may vary bail fixed by Magistrate or police. A Judge of a High Court may direct that
the: (a) bail conditions required by a Magistrate’s court or police officer be reviewed S168
ACJA, S120 ACJL Lagos, S178 ACJL Kano.
160
Continuous bail: The court may, where the circumstances appear just: (a) vary the order of
release on bail of the defendant at any subsequent hearing; and (b) at any subsequent stage of
any proceeding, cause a defendant who has been released on bail to be arrested and be
committed to custody: Provided that the Judge shall state in his record the reason for the
variation of the order or committal of the defendant. S173(2) ACJA, S123 ACJL Lagos,
S183(2) ACJL Kano.
Variation of a recognizance if surety unsuitable: Where at any time after a recognizance has
been entered into, it appears to the court that for any reason the surety or sureties are unsuitable,
the court may: (a) issue a summons or warrant for the appearance of the principal; and (b) on his
coming to the court, order him to execute a fresh recognizance with other surety or sureties, as
the case may be. S176 ACJA, S128 ACJL Lagos, S186 ACJL Kano.
PROCEDURE FOR VARIATION/REVIEW OF BAIL TERMS
• Motion on Notice/Summons
• Affidavit in support of motion/Summons
• Written address.
CANCELLATION OF BAIL ALREADY GRANTED
The law now provides that where bail is granted to a defendant/accused person and
circumstances arise which in the opinion of the Attorney General of the Federation, a Law
Officer or a Police Officer would justify the Court in cancelling the bail, refusing bail or
requiring bail of a greater amount, an application may be brought for its cancellation. See Ss 169
& 175 ACJA; S126 ACJL Lagos;
QUALIFICATION AS A SURETY
1. Person of known address;

2. Person of good character;
3. Person acceptable to court.
4. Person of reasonable means of income
ELIGIBILITY OF A WOMAN TO STAND AS SURETY
• There is no law in Nigeria that prohibits a woman from standing surety.

• Denial amounts to discrimination under S42 (1)(a) CFRN. See S167 (3) ACJA; S118 (3)
ACJL Lagos., Ukeje v Ukeje, Anaekwe v Nweke.
QUERE: Can a pregnant woman/woman in pudah be allowed to stand as a surety?

161
BONDSPERSON
• The ACJA & ACJL provide for the registration and licensing of persons or corporate
bodies to act as bondsperson within the jurisdiction of the court they are registered to
operate. See S.138 ACJL Lagos; S. 187 ACJA.
• Bondspersons enter recognizance, stand as surety, guarantee deposit of money to the

court within the jurisdiction of the court where they are registered. See S.187 (5) ACJA;
s.138(5) ACJL Lagos.
APPOINTMENT OF BONDSPERSON
• The Chief Judge of the State appoints/registers bondsperson to operate within the State
jurisdictions where they are licensed to operate. See S138 (1) ACJL Lagos.
• For FCT, the Chief Judge of the Federal High Court or Chief Judge of FCT High Court
appoints/registers bondspersons to operate in FCT. See S187 (1) ACJA.
QUALIFICATION AS BONDSPERSON
• For an individual, he must be of unquestionable character and integrity.

• In the case of corporate organizations, the organization must be composed of persons of
unquestionable character and integrity. See S.187(6) ACJA; S.138 (6) ACJL Lagos.
PUNISHMENT FOR IMPERSONATING A BONDSPERSON
• Practicing as a bail bondsperson without registration is an offence. See S187 (3) ACJA;
S.138 (3) ACJL Lagos.
• Note: The bonds entered by the bondsperson are tied to an amount in a bank in the form
of Bank guarantee deposited with the Chief Judge. See S138 (6)(7) ACJL Lagos; S.187
(6)(7) ACJA.
POWER OF ARREST BY BONDSPERSON
• A defendant attempting to escape or avoid appearance in court may be arrested by a

bondsperson without warrant.
• Person arrested must be brought to court within 12 hours.
• Failure to produce the person in court within 12 hours, he should hand him over to the
Police.
• Police will produce the person before the court. See S188 ACJA and S. 138 (8) ACJL
Lagos.
162
REVOCATION OF BAIL (INSTANCES)
Once the beneficiary of a bail keeps to the term and conditions of the bail, such exercise of
discretion will not be revoked. Bail may however be revoked in the following instances:
A) Assuming the applicant was granted bail by the Police, such bail is automatically revoked
upon the arraignment of the suspect in Court, or otherwise revoked by the police if the conditions
has been breached.
B) If the bail was granted by the Court pending trial, such bail remains until the determination of
the case against the defendant by the Court or the bail is revoked by the Court for breach of the
conditions.
C) Where the bail was granted by an appellate Court pending appeal, it remains in force until the
determination of the appeal before it becomes automatically revoked.
D) Where the surety applies to be discharged and surrenders the accused the Court will oblige
him and discharge him. The accused will be detained until he gets another surety. Caleb Ojo &
Anor. v F.R.N, S177(1) ACJA, S.129 ACJL Lagos.
E) Where the accused who is on police bail commits another offence for which the police cannot
grant bail. Upon being informed of this development by a superior police officer, the Magistrate
shall issue a warrant for the apprehension of the offender. See S127(1) ACJL.
F) Where the defendant/accused deliberately fails to keep to the terms and conditions of the bail
after being released on bail. In such scenario bench warrant may be issued for his arrest. S184
ACJA 2015. Also, the bail bond will be forfeited.
H) Where the surety dies. See S.178 ACJA; S.130 ACJL.
WHAT HAPPENS TO A SURETY WHO FAILS TO PRODUCE A DEFENDANT?
• Can the surety be arraigned?
See Christopher Ekwuazi v DPP (1999) 3 NWLR (Pt. 593) 31 CA; See S36 (8) CFRN. “A
charge against a surety for refusing to produce an accused person is not known to law. In the
instant case therefore, the prosecution of the appellant is unconstitutional and therefore null and
void.”
163
REMEDY TO THE STATE WHERE SURETY FAILS TO PRODUCE A DEFENDANT?
1. Forfeiture of bond;
2. Imprisonment for failure to pay.
RECONSIDERATION OF BAIL
• A Defendant on bail may have his bail cancelled based on circumstances or be required
to execute higher bond. See S.169 ACJA; S.126 ACJL Lagos.
POWER OF THE MAG TO RELEASE DETAINEES ON BAIL FROM DETENTION

CENTRES
• The Chief Magistrate within the Police Division or a designated Magistrate by the Chief
Judge SHALL visit the Police station & other places of detention every month to conduct
inspection. See S.34 (1) ACJA.
• During the visit, he may call for and inspect the records of arrest and direct the
arraignment of suspect. See S.34 (2) (a)(b) ACJA.
• During the visit, Magistrate may grant bail where appropriate to any person detained
where bail has been refused if he has jurisdiction. See S.34(2)(c) ACJA.
• During such visits records of arrest and bail, applications for bail made within the period
shall be made available to the Magistrate. See S34(3)(a-c) ACJA.
• With respect to other Federal Government Agencies empowered to make arrest, the High
Court Judge having jurisdiction shall visit such detention facilities for purposes provided
in the section. See S.34(4) ACJA.
PENALTY FOR REFUSING MAGISTRATE ACCESS TO RECORDS
• Failure by any officer to comply with the provisions of S34(3) ACJA shall be treated as a
misconduct. See S.34 (5) ACJA.
POWER OF THE CHIEF JUDGE TO RELEASE PRISONERS
• See Edwin Iloegbunam & Ors v. Richard Iloegbunam & Ors (2001) 47 WRN 72
wherein the Court of Appeal had upheld the constitutional validity of the Criminal
Justice (Release from Custody) (Special Provisions) Act 1977.
• Section 21 of the Nigerian Correctional Service Act, 2019, the CJN, Justices of SC and
CA, and the CJ of the states are among prison visitors ex officio.
164
• Such release relates only to awaiting trial inmates.

• It relates also to those whose trial are on-going, but they have over stayed the maximum
years of imprisonment they could have served if convicted.
• It does not relate to those already convicted and serving their sentences. See section 1 of
the Criminal Justice (Release from Custody) (Special Provisions) Act 1977.
REMAND ORDER PROCEEDINGS
▪ Any person arrested for an offence for which the magistrate has no power to try shall
within a reasonable time of arrest be brought before a Magistrate Court for remand. See
S. 293(1) ACJA; s.264 (1) ACJL Lagos.
▪ Remand proceedings and orders has been held to be constitutional by the Supreme Court.
See Lufadeju v Johnson (2007) All FWLR (871) 1532; (2007) 3 S.C (Pt. II)134.
REMAND ORDER PROCEEDINGS UNDER ACJA
• Application for remand order to the court is brought by way of an ex parte application
under ACJA. S293(2) ACJA;
• The form for the application is as contained in Form 8 in the 1st schedule to ACJA-293
(2) (a).
REMAND ORDER PROCEEDINGS UNDER ACJL LAGOS
• In Lagos the procedure of bringing the application is by completing The Request Form.
See Form K in the ACJL Lagos -264 (1) & (3).
FACTORS THE COURT WILL CONSIDER BEFORE REMAND ORDER IS GRANTED
• The factors the court will consider before making the remand order is listed in See S.
294(2) (a-d) ACJA; S.264 (4) ACJL Lagos. They include:
• (a) the nature and seriousness of the alleged offence;
• (b) reasonable grounds to suspect that the suspect has been involved in the
commission of the alleged offence;
• (c) reasonable grounds for believing that the suspect may abscond commit further
offence where he is not committed to custody; and
• (d) any other circumstance of the case that justifies the request for remand.
165
GRANT OF BAIL IN REMAND ORDER PROCEEDINGS
• The request for a remand order must be in writing.

• The Court may in a remand application grant bail. See S295 ACJA; S. 264 (5) ACJL
Lagos.
LIFE SPAN OF REMAND ORDER UNDER ACJA 2015
• It is 14 days in the first instance.

• It is renewable for another 14 days upon good cause shown. See S.296 (1) & (2) ACJA.
❖ At the expiration of 2nd renewal, if suspect is still in custody the Magistrate will issue
hearing notice to IGP, COP & AGF to inquire as to the position of the case and for them
to show cause why the suspect should not be released and adjourn for another 14 days.
See S296 (4) ACJA.
• Under ACJA, if suspect is still in custody at the expiration of the two period court may
grant him bail upon his application. S.296 (3) ACJA.
• Upon good cause shown it may be extended for a final period of 14 days. S296(5)(a)
ACJA.
• Where good cause is not shown upon the expiration of the 2nd renewal, or final period,
the court shall with or without an application to that effect discharge the suspect who
shall be immediately released from custody. S296 (6) ACJA.
• The proceedings in s.296 (6) shall be a bar to any other remand proceedings in any court.
See S296 (7) ACJA.
LIFE SPAN OF REMAND ORDER UNDER ACJL (LAGOS)
• Under ACJL it is 30 days in the first instance.

• Upon expiration, Magistrate shall order release of the person unless good cause shown
for renewal for 1 month. See S.264 (6) ACJL.
❖ At the expiration of 2nd renewal, if suspect is still in custody the Magistrate will issue
hearing notice to COP & DPP to inquire as to the position of the case and for them to
show cause why the suspect should not be released. See S264 (7) ACJL.
❖ The court may renew the order if satisfied with the reasons given for a final period. See
S264 (8) ACJL;
166
CONCEPT OF HOLDING CHARGE
• The Concept of holding charge is a procedure whereby the Police arraigns a defendant in
a Magistrate Court on a charge for an offence of which the Magistrate court lacks
jurisdiction to entertain.
• The essence is to guard against the breach of section 35 (4) & (5) 1999 Constitution.
• The court will not take the plea of the defendant but will make an order for the person to
be remanded in Correctional Centre pending when a formal charge will be filed in court
with jurisdiction.
• Once the order is made the defendant will be dumped in the Correctional Centre for
months or years without arraignment under awaiting trial.
LEGALITY OF HOLDING CHARGE
• The Supreme Court in Lufadaju v Johnson (2007) 3 S.C (Pt. II) 134 held that holding
charge is illegal.
• See the following cases on holding charge: Onagoruwa v. State (1992) 2 NWLR (Pt.
221) 33 at 54 (SC). Shagari v. COP & ors (2005) All FWLR (Pt. 262) 450. Jimoh v.
C.O.P (2004) 17 NWLR (Pt. 902) 389.
167
SAMPLE DRAFTS OF BAIL APPLICAITON
Application before High Court after refusal by a Magistrate
IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY

IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
CHARGE NO: FCT/HC/2022/1591
BETWEEN:
FEDERAL REPUBLIC OF NIGERIA________________COMPLAINANT/RESPONDENT
AND
1. IKPO UDO___________________________________________________DEFENDANT
2. BURAGO MUSA_____________________________________DEFENDANT/APPLICANT
MOTION ON NOTICE
BROUGHT PURSUANT TO SECTIONS 164 AND 165 OF THE ADMINISTRATION OF

CRIMINAL JUSTICE ACT, 2015 AND SECTION 35(4), (5) AND SECTION 36(5) OF THE
CONSTITUTION OF FEDERAL REPUBLIC OF NIGERIA, 1999 (AS AMENDED) AND
THE INHERENT JURISDICTION OF THIS HONOURABLE COURT
TAKE NOTICE that this Honourable court will be moved on the 15th day of March, 2022 at the
hour of 9’O clock in the forenoon or so soon thereafter as applicant’s counsel will be heard on
behalf of the applicant praying for the following orders:
1. AN ORDER admitting the defendant/applicant to bail pending his trial
2. AND such further orders as this Honourable court may deem fit to make in the circumstances
of this case.
Dated this 15th day of March, 2022

_____________
C. O. Agbata Esq.
Applicant’s Counsel
C. O. Agbata & Co
15 Chevron Drive,
Ikoyi, Lagos
FOR SERVICE ON:
The Hon. Attorney-General of Federation
Attorney-General’s Chambers
Ministry of Justice
Abuja
168

HOLDEN AT LAGOS
BETWEEN:
COMMISSIONER OF POLICE … ………………COMPLAINANT/RESPONDENT
AND
1. BOLANKE MANITOBA
2. KAMANGA ZAKI
SUMMONS FOR BAIL
BROUGHT PURSUANT TO SECTION 35 OF THE CONSTITUTION OF THE FEDERAL

REPUBLIC OF NIGERIA, 1999 AS AMENDED, SECTION 115 OF THE
ADMINISTARTION OF CRIMINAL JUSTICE (REPEAL AND RE-ENACMENT) LAW OF
LAGOS STATE, 2011 AND UNDER THE INHERENT JURISDCTION OF THIS
HONOURABLE COURT.
LET ALL PARTIES attend at the High Court of Lagos State holden at 9 O’clock in the forenoon
or so soon thereafter on the hearing of an application for:
1. AN ORDER admitting the defendants/applicants to bail pending the determination of the trial
at the magistrate court.
2. AND FOR SUCH FURTHER ORDER OR ORDERS as the Honourable Court may deem fit
to make in the circumstances.
Dated this _________ day of ____________________ 2022.
_____________
C. O. Agbata Esq.
Applicants’ Counsel
C. O. Agbata & Co
15 Chevron Drive,
Ikoyi, Lagos
FOR SERVICE ON:
The Complainant/Respondent
Attorney General of Lagos State
Ministry of Justice,
Lagos.
169

HOLDEN AT LAGOS
BETWEEN:
AND
1. BOLANKE MANITOBA
2. KAMANGA ZAKI
AFFIDAVIT IN SUPPORT OF APPLICATION FOR BAIL FOR THE 1ST

DEFENDANT/APPLICANT
I, Bolanke Manitoba, male, businessman, residing at No. 54 Ajah, Victoria Island, Lagos,
Nigerian citizen, do hereby make oath and state as follows:
1. That I am the deponent to this affidavit and the first defendant thereof.
2. That I was arrested on the _______ day of ________ for the alleged offence of stealing.
4. That since the ____ day of 2015 I have been in police custody and in prison custody. I have
been detained at the police custody for a period of ____ .
5. That I am standing trial at the magistrate court for the offense of stealing. Attached herewith is
the Certified true copy of the charge sheet marked as EXHIBIT A
6. That my bail application at the magistrate court was refused. Attached herewith is the
Certified true copy of the ruling of the Magistrate court refusing the bail application marked as
EXHIBIT B
7. That I am an out-patient at the Lagos State Teaching Hospital as I am suffering from

tuberculosis and cardiopathy. Attached herewith is the medical report marked as EXHIBIT C
8. That I have sought treatment from the prisons authority and the medical facilities in the
prisons are inadequate to take care of my health.
9. That if this application is not granted it may lead to my death and thereby frustrate the trial of
the present case.
170
10. That the grant of this application will not prejudice the case of the prosecution.
11. That I will not in any way interfere with the investigation of this case if granted bail.
12. That I make this solemn declaration in good faith and in accordance with the Oath Law of
Lagos State.
_____________________
DEPONENT
SWORN TO AT ………………………………. Court Registry, this …………………. Day of

………………………. 2022
BEFORE ME
…………………………………..
COMMISSIONER FOR OATH
171

HOLDEN AT LAGOS
BETWEEN:
AND
1. BOLANKE MANITOBA
2. KAMANGA ZAKI
WRITTEN ADDRESS IN SUPPORT OF THE 1st DEFENDANT/APPLICANT’S

INTRODUCTION
ISSUES FOR DETERMINATION
LEGAL ARGUMENT
CONCLUSION
Dated this _____day of_________ 2022.
_____________
C. O. Agbata Esq.
Applicants’ Counsel
C. O. Agbata & Co
15 Chevron Drive,
Ikoyi, Lagos
FOR SERVICE ON:
The Complainant/Respondent
Attorney General of Lagos State,
Ministry of Justice,
Lagos.
LIST OF AUTHORITIES
172
HOW TO MOVE AN APPLICATION FOR BAIL-------ABARA EWAPP
1. Announce appearance: May it please this honourable court, My Lord, C. O. Agbata,

appearing for the accused persons/defendants.
2. Before this HC clause: My Lord, before this Honourable Court is an application for bail on
behalf of the accused persons/defendants dated and filed the__day of__2019.
3. Authority for the application clause: My Lord, the motion is brought pursuant to section
35(4) and section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria (as
amended), section 341(2) & (3) of the Criminal Procedure Code Act and under the inherent
jurisdiction of this court
4. Relief clause: My lord, we seek the following reliefs: An order of the court admitting the 2nd
accused person/defendant/applicant to bail pending the determination of his trial
5. Affidavit clause: My lord, in compliance with the rules of this Honourable Court, our motion
is supported by an 11-paragraph affidavit sworn to by the 1st accused/defendant. We rely on all
the paragraphs of the affidavit particularly paragraphs 4-10.
6. Exhibit introduction clause: My lord, accompanying the affidavit is an exhibit marked

EXHIBIT A.
7. Written address: My lord, we have also filed a written address in support of our application.
We wish to adopt same as our oral argument before this Honourable Court.
8. Aligning the factors for grant of bail: My lord, it is trite law that for an applicant to be
granted bail, certain factors are put into consideration. My Lord, these factors exist in favour of
the applicant.
9. Prayer for grant of bail clause: We humbly pray this Honourable Court to grant bail to the
accused on liberal terms.
10. Please the court clause: May it please this Honourable Court.
QUESTIONS
Bolanke Manitoba Scenario on bail
173
On the 10th day of September 2019 a gang of armed robbers numbering about six armed with
firearms invaded Muson International Supermarket at No 10 Awolowo Road, Victoria Island
Lagos and stole at gun point from the supermarket till the sum of two million Naira and carted
away two Samsung curved Large screen televisions worth two million and five hundred
thousand naira only. The names of the armed robbers are Bolanke Manitoba, Kamanga Zaki,
Fakinama Abunga, Zampari Bungu, Brutus Saforova and Yansinbe Cantona.
Security personnel in the adjoining building observed the irregular movement in the supermarket
and alerted the police. Exchange of gunfire ensued when the police arrived before the robbers ran
away leaving their injured colleague Zampari Bungu behind. The police carried him to the
hospital for medical attention. After two weeks at the hospital he recovered and was immediately
arrested and taken to the Alagbon Division of the Nigerian Police, Lagos Island where he was
detained for questioning and prosecution. After five days of mental torture which includes
regularly hanging him in a ceiling fan in the interrogation room, throwing him into a tank full of
water for five minutes daily and denying him food regularly, he eventually gave information that
led to the arrest of the other gang members after one month.
The father of Zampari Bungu employed the services of a lawyer Burukutu Henry who was called
to the Bar on 21st November 2018 to apply for his son’s bail at the police station. When he
visited his client at the station he gave two thousand naira to the constable in the counter to assist
in buying tissue paper in order to secure access to see his client. He also informed the constable
that he will settle him if he facilitates his client’s release on bail and that he is ready to act as
surety. He was eventually retained by the other accused persons as their counsel. He submitted
their bail application to the Divisional Police Officer but his application was refused more
particularly that it was a woman (the mother of Zampari Bungu) who was presented as a surety
and that the offence is unbailable.
Curiously, the Police brought an application via motion on notice to the High Court Igbosere,
Lagos for remand requesting for a period of two months pending completion of investigation and
it was granted despite opposition by the defence lawyer. The counsel two days after the grant of
the remand order filed an application in court for enforcement of his client’s fundamental rights.
Zampari Bungu while in detention developed pneumonia as a result of constant exposure to cold
and has become hypertensive. Bolanke Manitoba is an out-patient at the Lagos State University
Teaching Hospital as he is suffering from tuberculosis and cardiopathy whilst others have
developed severe heart burn and acute ulcer.
Answer the following questions as counsel to the accused persons:
1. Draft an application for Police bail on behalf of the suspects at the Police Station as their
counsel Burukutu Henry.
174
2. Draft the bail application for Zampari Bungu and Bolanke Manitoba to be filed at the Lagos
State High Court with the supporting affidavit of not more than 7 paragraphs excluding the
written address.
3. Assuming the scenario is in the FCT draft the bail application for Zampari Bungu and Bolanke
Manitoba to be filed at the Federal Capital Territory, Abuja, Maitama High Court without the
supporting affidavit and written address.
4. Assuming the defendants were brought for arraignment at the Magistrate Court Igbosere and
the Police applied for their remand orally in Prison custody pending completion of investigation,
what would be your reaction as counsel?
5. Comment on the propriety or otherwise of the remand order application brought by the Police
before the High Court.
6. Comment with the aid of decided cases on the reasons given by the Police for refusing them
bail.
7. Assuming the scenario revolves around incidents of stealing and your bail application was
filed at the Magistrate’s Court Igbosere, Lagos but it was refused, draft a subsequent application
to be filed at the High Court for all the accused persons.
8. Comment on the ethical issue (s) if any, based on the conduct of the Legal Practitioner at the
Police Station.
9. Comment on the propriety or otherwise of the procedure used by the Police in bringing the
application for remand in the court in the scenario.
10. Comment on the propriety or otherwise of the application for enforcement of fundamental
human rights brought by the defence counsel two days after the remand order was granted.
175
WEEK 11 – CONSTITUTIONAL SAFEGUARDS TO ENSURE FAIR TRIAL OF AN

ACCUSED PERSON
OUTCOMES
1. Discuss the constitutional and statutory provisions safeguarding the rights of an accused
person in a criminal trial.
2. Discuss the limits of those rights.
CONTENTS
1. Right to be informed of the crime alleged

2. Right to fair hearing
3. Presumption of innocence
4. Right to adequate time and facilities for defence.
5. Right to counsel

2. Students are grouped to discuss right to be informed of the crime alleged and sample
presentations are made – 30 minutes
3. Students are grouped to discuss the right to fair hearing and sample presentations are
made – 30 minutes
4. Students are grouped to discuss the right to presumption of innocence and sample
presentations are made – 30 minutes
15 Minutes Break
5. Students are grouped to discuss the right to adequate time and facilities for defence and
sample presentations are made – 30 minutes.
6. Students are grouped to discuss the right to counsel and sample presentations are made –
30 minutes.
7. Assessment – 20 Minutes
176
These safeguards are encapsulated in S36 CFRN which provides as follows:
(1) In the determination of his civil rights and obligations, including any question or
determination by or against any government or authority, a person shall be entitled to a fair
hearing within a reasonable time by a court or other tribunal established by law and constituted
in such manner as to secure its independence and impartiality.
(2) Without prejudice to the foregoing provisions of this section, a law shall not be invalidated
by reason only that it confers on any government or authority power to determine questions
arising in the administration of a law that affects or may affect the civil rights and obligations of
any person if such law -
(a) provides for an opportunity for the persons whose rights and obligations may be
affected to make representations to the administering authority before that authority
makes the decision affecting that person; and
(b) contains no provision making the determination of the administering authority final
and conclusive.
(3) The proceedings of a court or the proceedings of any tribunal relating to the matters
mentioned in subsection (1) of this section (including the announcement of the decisions of the
court or tribunal) shall be held in public.
(4) 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:
Provided that -
(a) a court or such a tribunal may exclude from its proceedings persons other than the
parties thereto or their legal practitioners in the interest of defence, public safety, public
order, public morality, the welfare of persons who have not attained the age of eighteen
years, the protection of the private lives of the parties or to such extent as it may consider
necessary by reason of special circumstances in which publicity would be contrary to the
interests of justice;
(b) if in any proceedings before a court or such a tribunal, a Minister of the Government
of the Federation or a commissioner of the government of a State satisfies the court or
tribunal that it would not be in the public interest for any matter to be publicly disclosed,
the court or tribunal shall make arrangements for evidence relating to that matter to be
heard in private and shall take such other action as may be necessary or expedient to
prevent the disclosure of the matter.
177
(5) Every person who is charged with a criminal offence shall be presumed to be innocent until
he is proved guilty;
Provided that nothing in this section shall invalidate any law by reason only that the law imposes
upon any such person the burden of proving particular facts.
(6) Every person who is charged with a criminal offence shall be entitled to -
(a) be informed promptly in the language that he understands and in detail of the nature
of the offence;
(b) be given adequate time and facilities for the preparation of his defence;
(c) defend himself in person or by legal practitioners of his own choice;
(d) examine, in person or by his legal practitioners, the witnesses called by the
prosecution before any court or tribunal and obtain the attendance and carry out the
examination of witnesses to testify on his behalf before the court or tribunal on the same
conditions as those applying to the witnesses called by the prosecution; and
(e) have, without payment, the assistance of an interpreter if he cannot understand the
language used at the trial of the offence.
(7) When any person is tried for any criminal offence, the court or tribunal shall keep a record of
the proceedings and the accused person or any persons authorised by him in that behalf shall be
entitled to obtain copies of the judgement in the case within seven days of the conclusion of the
case.
(8) No person shall be held to be 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
(9) 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.
(10) No person who shows that he has been pardoned for a criminal offence shall again be tried
for that offence.
178
(11) No person who is tried for a criminal offence shall be compelled to give evidence at the
trial.
(12) 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 therefor is prescribed in a written
law, and in this subsection, a written law refers to an Act of the National Assembly or a Law of a
State, any subsidiary legislation or instrument under the provisions of a law.
SUMMARY OF THE RIGHTS
1. Right to fair hearing – S36(1) & (2) (4) CFRN

2. Right to be tried in public – S36(3) & (4) CFRN
3. Right to trial within reasonable time (speedy trial) in public – S36(4) CFRN
4. Right to be presumed innocent – S36(5) CFRN
5. Right to be informed of the crime alleged – S36(6)(a) CFRN
6. Right to be given adequate time to prepare for his defence – S36(6)(b) CFRN
7. Right to a counsel – S36(6)(c) CFRN
8. Right to examine witnesses – S36(6)(d) CFRN
9. Right to an interpreter – S36(6)(e) CFRN
10. Right against trial upon retroactive legislation and heavier penalty – S36(8) CFRN
11. Right to one trial for one offence – right against double jeopardy – S36(9) CFRN
12. Right against trial for an offence for which accused has been pardoned – S36(10) CFRN
13. Right to remain silent – S36(11) CFRN
14. Right to be tried only for an offence known to law – S36(12) CFRN
1. RIGHT TO FAIR HEARING S36(1), (2) & (4) CFRN
➢ Fair trial must be in public within a reasonable time by a court/tribunal

➢ Fair hearing like issue of jurisdiction can be raised at any time of the proceedings even on
appeal and the court must urgently entertain it before proceeding with the trial- Babalola
v Oshogbo Local Government.
➢ Right to fair hearing cannot be said to have been waived by the parties as it is
fundamentally guaranteed by the CFRN- Jang v INEC, Nwokoro v Onuma.
➢ 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.
➢ Fear hearing is AKA principle of natural justice. Encapsulated in two maxims;
• Audi alteram partem (hear both sides)
 He must not only be heard but be afforded the opportunity to be defended in person or
by a LP of his choice.
179
 A party who denies fair hearing at a trial must prove specific act(s) not agglomeration
of conducts that are merely cosmetic Tobi JSC in Ejeka v the State.
 In Akabueze v. FRN, that where the court or tribunal denies the accused person the
opportunity to engage a counsel of his choice, this amount to denial of fair hearing.
However, this right 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.
 No breach where a party is given every opportunity but he refuses to appear. See
Akinkotun v NBA. (2006) All FWLR pt 333, 1720
 In NBA v. Akinkotun, the Legal Practitioners Disciplinary Committee held that the
audi alterem partem rule is not breached if the appellant was given adequate
opportunity to appear and present his case or defence to the case against him but he
chose not to avail himself of the opportunity.
➢ Nemo judex in causa sua (person shall not be a judge in his own case)
• Justice must not only be done but be seen to be done i.e., not whether the judge is
bias but whether a detached by-stander will observe and give an impression
whether judge was bias or not. See Azokwu v. Nwokanma
• The appellate court in deciding bias is guided by the circumstances from which a
reasonable man is likely or probable that a judge was or was not bias. see Tulu v
Bauchi NA, Effiom v State
• The judge/adjudicator must have no relationship with the subject matter or
outcome of the proceeding Garba v Unimaid
• no delay, no partiality, he must be heard.
2. RIGHT TO TRIAL IN PUBLIC (PUBLICITY OF TRIAL) S36(3) & (4) CFRN
In Edibo v. State, the court held that arraignment and taking of plea of an accused person in the
judge’s chamber is unconstitutional.
Exceptions:
Constitutional:
• In the interest of defence, public safety, public order, public morality, the welfare of
persons who have not attained the age of eighteen years, the protection of the private
lives of the parties or to such extent as it may consider necessary by reason of special
circumstances in which publicity would be contrary to the interests of justice S36(4)(a)
CFRN
180
• A Minister of the Government of the Federation or a commissioner of the government of

a State satisfies the court or tribunal that it would not be in the public interest for any
matter to be publicly disclosed S36(4)(b) CFRN
Statutory:
• Express provision of statute that trial should not be open to the members of the
public. E.g., sexual offences; offences under the Prevention of Terrorism Act;
offences relating to Economic and Financial Crimes; Trafficking in persons as
provided under S232(1) & (4) ACJA.
• Where juveniles are tried, proceedings are not opened to the public S6(5) CYPL
Lagos State also S36(4)(a) CFRN. The identity of the child or young person shall
not be published except where the law permits it. S6(6) CYPL Lagos State.
• Section 13(1) Recovery of Public Property Special Military Tribunal Decree
1984 excludes public.
• The public may be excluded on grounds of public policy, public decency or
expediency. See S201 ACJL Lagos, S259(2) ACJA.
• Where the evidence of a person who has not attained the age of 17 years is to be
heard in relation to offence against morality. Ss 202 ACJL, 260 ACJA.
3. RIGHT TO BE TRIED WITHIN REASONABLE TIME (SPEEDY TRIAL) S36(4)

CFRN
A defendant person is entitled to trial within a reasonable time - Okeke v. State. Reasonable
time is the time that will make the judge not forget the evidence given by witnesses.
In Effiom v State, the court held that the following factors must be taken into account in
determining whether there was unreasonable delay:
• Length of the delay

• Reasons for the delay
• Accused person assertion of his right
• Prejudice to the accused
In Effiom’s Case, the trial of the accused lasted for 6 years before he was convicted, but the
court held that the majority of the adjournments in the trial were inevitable for the just decision
of the case and much of the delay was beyond the control of the trial court. Thus, even if it was
concluded that there was delay in the trial, cogent reasons were advanced to explain them.
Neither the prosecution nor the learned trial judge could be blamed for the delay which itself was
181
not unreasonable having regard to circumstances of the case. Proof of unreasonable delay is not
sufficient to nullify conviction unless the delay led to miscarriage of justice - Asakitipi v. State.
Speedy Trial under the ACJA
S110 ACJA, provides for trial to commence within 30 days and close within 180 days and
where it is completed, the file is to be forwarded to the CJ stating reasons for failure to either
commence or complete the trial.
Also, S396 ACJA makes trial of criminal cases to be on a day-to-day basis. There shall be no
more than 5 adjournments at the instance of any party where day to day proceeding is
impracticable. Where parties have exhausted the 5 adjournments and it is impracticable to
conclude the trial, the interval between one adjournment and the other shall not be more than 7
days inclusive of weekends.
In all circumstances, the court may award reasonable costs in order to discourage frivolous
adjournments. As a form of remedy, the judge may order sentence to run from the period of
detention in order to balance the interest. Also, the Chief Judge may release awaiting inmate.
4. RIGHT TO PRESUMPTION OF INNOCENCE S36(5) CFRN
In Abdullahi v. State 6 (2005) All FWLR (Pt. 263) 698, the court held that by the presumption
of innocence of an accused person as conferred by Section 36(5) of the 1999 Constitution, the
policy of our courts is to be willing to discharge 10 (ten) criminals rather than to convict one (1)
innocent person by mistake or error.
The accused is presumed innocence until the contrary is proven, Tulu v Bauchi NA. S36(5)
CFRN
The grant of bail is also on the right to presumption of innocence - Ikhazuagbe v.

Commissioner of Police.
The judge should also not say or write anything suggesting a presumption of the guilt of the
defendant - Okoro v. State.
In Olawoye & Ors v. Commissioner of Police, an application for bail was refused by both the
Magistrates Court and High Court on the ground that the offence of cultism was rampant. This
was held to be a breach of the right to be presumed innocent.
The burden is on the prosecution to prove all essential ingredients of an offence S 135(2) &
139(1) EA and the standard is beyond reasonable doubt S139(2) EA.
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The defence of the defendant must be properly considered however weak or fanciful or bereft
with lies as they may appear to be. See Agbiti v. Nigerian Navy.
Any doubt raised in the mind of the Court must be resolved in the favour of the defendant. See
Tulu v Bauchi N.A, Okoro v The State.
EXCEPTIONS: The burden of proof shifts to the defendant in the following situations;
1. Burden shift to the defendant to disprove an allegation where prosecution discharges

same S135(3) EA. In Okoro v. State, the court held that it is the duty of the prosecution
to prove the guilt of the accused person beyond reasonable doubt. However, once the
prosecution discharges the burden placed upon it by the constitution, the burden shifts to
the accused (not to prove his innocence) but to disprove the allegation. Where he fails to
do this and the trial court finds the case of the prosecution sufficiently proved to the
prescribed standard, the presumption of innocence hitherto enjoyed is displaced and the
accused will be convicted and given the appropriate punishment.
2. The burden is on the accused to prove any defence(s) he wishes to raise at his trial. E.g.,
insanity section 27 Criminal Code, intoxication etc as he is naturally presumed to be of
sound mind also S139(3)(c) EA on intoxication and insanity. Inyang v The State, Idowu
v The State, Upetire v AG Western Nigeria, Ansa v. The State (1988) 3 NWLR pt. 83
p. 386 at 400 or defences of provocation accident or self-defence. See also Okom Edoho
v. State (2020).
3. It is common for statutes to impose burden of proving particular fact on the accused. See
Section 417 of the Criminal Code, Sections 145, 146 and 168 of the Custom and
Excise Management Act. See Chairman of Board of Customs & Excise v. Baye
(1960) WNLR 178, EBIRI v. Board of Customs and Excise (1965) NMLR 35, see also
Section 6(3) of the Recovery of Public Authorities (Special Military Tribunal)
Decree No. 2 of 1984, see Section 7 of the Road Traffic Act. Simi Johnson v. COP
(1960) WRNLR 118.
In Chairman of Board of Customs & Excise v. Baye, the accused had been charged
with knowingly and with intention to defraud the government of the duty payable therein,
acquired possession of certain dutiable goods which had not been paid for, contrary to
section 145(a) of CEMA. She alleged that she didn’t know whether the duties had been
paid on the goods or not by the person from whom she had bought. She also stated that
she did not know that the goods were dutiable. Held: once it was shown that dutiable
goods were found in her possession, a prima facie case was made out against her, that she
knowingly with intent to defraud the government of the duties possessed the goods. The
burden was therefore on her to explain to the court that duty had been paid on the goods
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or that having acquired them in the ordinary course of business, she did not know that
duty had not been paid.
In Ebiri v Board of Customs & Excise it was held that the combined effect of some of
the provisions of CEMA is that where a customs officer finds a person in any part of
Nigeria in possession of dutiable imported goods and such person is charged under
section 145 of CEMA, the onus of proving either that the duties have been paid or
absence of intent to defraud customs of duties payable is on that person.
Other examples of where statute-imposed burden of proof on the accused are section 60
of the Pharmacy Act applied by the court in Queen v Ohaka
Under section 6(3) of the Recovery of Public Property (Special Military Tribunals)
Decree No.2 1984 where the prosecution has established a prima facie case against the
accused person “The onus of proving that there was no unjust enrichment contrary to any
of the provisions of section 1 of the Decree shall lie upon the public officer or any
person concerned”
In Simi Johnson v COP. Accused was charged with driving without a valid driver’s
licence contrary to section 7(1) of the Road Traffic Ordinance. She had a learner’s
permit, she also claimed to have passed the driving test but was yet to obtain the driver’s
licence at the time she was caught driving. The proviso to section 7(1) exempted the
holders of drivers permit where such driver was driving accompanied by a licenced
driver, driving within the period on a highway specified by the permit. The appellant
failed to establish that the requirements listed under the proviso were met. Accordingly,
she failed to discharge the onus imposed on her to prove exemption.
4. Where a fact is within the exclusive knowledge of the accused. Such accused has the
burden of proving it. See Section 140 of the Evidence Act 2011. When any fact is
especially within the knowledge of any person, the burden of proving that fact is upon
him.
Otti v. IGP (1966) NNLR 56 he was charged with the offence of carrying out money
lending business without a money lender’s licence. Prosecution showed that he carried
out the business. However, no evidence adduced that he had no licence. He also did not
adduce evidence that he had a licence. It was held that burden was on him to show that
he had licence because it was a fact within his exclusive knowledge.
Rahman v. COP (1973) NNLR 87 was a case where the A charged with cheating
(similar to section 419CC). He approached Hamdala Hotel posing as a pilot of an Air
Line (Pan Air). On the basis of the arrangement between the Hotel (Hamdala) and the
Airline to house and feed their pilots & cabin crew, he was accommodated & fed by the
hotel. During the trial, evidence was not adduced by the prosecution to show that he was
not a pilot employed by Pan Air. It was held that burden of proving that he offered no
evidence that he was employed by Pan Air was on him because it was a fact within his
exclusive knowledge.
184
See also Akhidime v. State (1984) NSCC 588, Odu v. State (2000) 7 NWLR pt. 588
p.283
Note (exception): that where a particular fact is within the knowledge of the accused and the
prosecution, the burden of proving such fact is on the prosecution. In Joseph v IGP. The
accused was charged for unlawful procession contrary to section 38(a) of Police Ordinance.
There was no evidence on whether the accused obtained a licence or not to embark on the
procession. The duty to issue the licence was that of the prosecution i.e., the police which was
consequently in a position to know if a licence was issued or not. The accused also was in a
position to know if he had a licence or not. Yet no evidence was forthcoming from either side on
whether there was a licence or not. Held: that the fact was not within the exclusive knowledge of
the accused but mutual knowledge of both the prosecution and the defence. Not duty on the
accused to prove the fact.
Exception to the rule above S139(3) EA, defence of intoxication, insanity, facts within the
accused personal knowledge. See Okoro vs State, Eyu vs State, Uso vs State, for not given
effect to the presumption by the court,
5. RIGHT TO BE INFORMED OF THE CRIME ALLEGED S36(6)(a) CFRN
Person charged with criminal offence shall be Informed promptly of the offence in the language
he understands the nature of the offence
In Yahaya v. State, the Supreme Court held that the trial and conviction of the appellant was a
nullity for failing to comply with Section 36(6) (a) CFRN.
Inform the accused prior to the trial, i.e., upon arraignment before plea. This in contrast with
S35(3) CFRN (arrest/detention by the police) constitution provides for arrest and detention of
accused to be informed within 1 day & tried arraigned within 2 days.
Note an accused charged of greater offence may be convicted of lesser offence; S228 ACJA,
S235 ACJL Kano, S211(1) ACJL Lagos, Adava v. The state (2006) All FWLR pt 311 at1777,
Okeke vs State.
In Adava v. State, the accused persons who were charged and convicted for homicide
punishable with death. At the Supreme Court, their appeal was allowed and they were convicted
for a lesser offence of voluntarily causing hurt without provocation. The rationale is that where
an accused is charged for a grave offence, he is deemed to have notice of the lesser one.
185
Where an accused is charged for an offence, he may be convicted of a lesser offence where the
facts proved cannot earn him a conviction on the offence charged. He needs not be informed of
the lesser offence. He is deemed to have had notice of it because he had notice of the greater
offence for which he was charged. This is the case of Nwachukwu v. The State (1985) 2
NWLR 27, Maja v. The State (1980) -1 N.C.R. 212.
The effect of the foregoing principle is that it is no violation of the fundamental human rights not
to inform the accused of lesser offence for which he is convicted if he is informed of a graver
offence. See Uguru v. State [2002] 4 S.C.N.J. 282.
Also, an accused can be convicted of another offence by which he was not charged based on the
evidence disclosed at trial without calling him to make a fresh plea. In Nwachukwu v. State, the
accused was being tried for armed robbery. At the end of the trial, the offence was not proved but
he was convicted of robbery. The accused appeal was dismissed. The ingredient of offence for
which the accused is to be convicted must be contained in the evidence of the offence for which
he is been tried.
Failure to comply with this provision renders a trial/conviction a nullity Yahaya v. State.
6. RIGHT TO ADEQUATE TIME AND FACILITIES TO PREPARE FOR DEFENCE

S36(6)(b) CFRN
The court should grant adjournment to the accused to either obtain the service of a counsel or to
call his witness in defence of his case.
In Udo v. State, the appellant was arraigned for the murder of his mother. In the course of the
trial, the defence counsel wrote a letter to the court asking for an adjournment on the ground that
he was involved in another murder case before another High Court Judge. The learned trial judge
refused the application for adjournment. On that day that counsel was absent, two vital witnesses
testified. Ultimately, the appellant was convicted and sentenced to death. The Supreme Court
held that the denial of adjournment for counsel to appear and represent the appellant amounted to
denial of right to counsel. It allowed the appeal and ordered a retrial.
Defendant to be given adjournment in murder case in the absence of his counsel is his
constitutional right,
Where accused witness is absent the accused can be given adjournment on the following grounds
upon showing;
 The witness is material

 The accused is not guilty of procuring the witness or neglect
186
 Showing reasonable expectation of procuring the witness at next adjourn date see Yanor
v State
Adjournment can be refused to the accused where the case is not capital in nature and no
reasonable explanation for the absence. Adjournment by the court here is discretionary but must
be exercise judicially and judiciously Omega v State, Shemfe v Police.
7. RIGHT TO COUNSEL S36(6)(c) CFRN
Right of accused to defend himself in person or by legal practitioner of his choice S36(6)(c)
CFRN
A legal practitioner is a person who is entitled to practice generally having been called to the
Nigerian bar and enrolled in the register of legal practitioner kept by chief reg of SC Or a person
entitled to practice by virtue of his office especially officer of AGF’s office. Or entitled to
practice by warrant i.e., entitled to practice in other country permitted by CJN to represent a
person in a particular proceedings before the Nigerian court
In Uzodinma v. COP, where an accused was denied legal representation before an Area court
based on Section 28 Area Court Edict and Section 390 CPCL, the Supreme Court held that the
above provisions being inconsistent with the provision of the constitution were void.
In Udo v. State, the appellant was arraigned for the murder of his mother. In the course of the
trial, the defence counsel wrote a letter to the court asking for an adjournment on the ground that
he was involved in another murder case before another High Court Judge. The learned trial judge
refused the application for adjournment. On that day that counsel was absent, two vital witnesses
testified. Ultimately, the appellant was convicted and sentenced to death. SC held that the denial
of adjournment for counsel to appear and represent the appellant amounted to denial of right to
counsel. It allowed the appeal and ordered a retrial.
However, 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. Senior Advocates of Nigeria
are not to appear before an inferior court (Magistrate, Area and Customary court). See
Registered Trustees of ECWA v. Ijesha, it was held that a counsel who is not qualified to
apply for a process in the inferior Court or disqualified from appearing in such a Court cannot be
briefed to appear in that Court. Therefore, the Senior Advocates of Nigeria (Privileges and
Functions) Rules excluding a SAN from right of audience in the inferior Court (Area Courts
inclusive) by the combined interpretation of Rules 2 and 3 against the background of Rules 4
and 6 of the Rules, is a clear qualification to Section 33(6) (c) of the 1979 Constitution and
that such exclusion does not in any way negate the fair hearing enshrined in the constitution.
187
Also, the right to counsel of choice is subject to the relevant immigration laws. In Awolowo v.
Minister of Internal Affairs, the appellant was charged for a capital offence of treason. He
sought for the services of a foreign counsel but the foreign counsel was denied entrance into
Nigeria on grounds that he did not comply with the relevant immigration requirements, the
appellant instituted this action for the enforcement of his fundamental right to representation by
counsel of his choice. The court held that there was not denial of right to counsel as the right to a
foreign counsel is subject to the relevant immigration requirements.
Accused right to counsel has to be made known to the accused by the court as it is not waivable
Ariori v Elemo, Okon v State, Ogboh v FRN.
The general rule is that the defendant charged with a capital offence shall not be allowed to
represent and defend himself - S 349(6)(b) and 267(1) ACJA, Okotobo v State. However,
pursuant to S267(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.
Where a person is charged with a capital offence, the State shall be represented by a Law
Officer, or legal practitioner and if the defendant is not defended by a legal practitioner, the
Court shall assign a legal practitioner for his defence- S259 ACJL.
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.
8. RIGHT TO EXAMINE WITNESSES S36(6)(d) CFRN
S36(6)(d) CFRN provides that an accused person has a right to call his own witnesses to testify
on his behalf. Also, the accused has the right to cross-examine the prosecution witnesses. The
right to cross-examine prosecution witnesses is not at the end of all witnesses’ testimonies but
one after the other.
In Idirisu v. The State, (1968) NMLR 88, the counsel for the accused applied that a medical
officer who made a report which had been received in evidence in a charge of culpable homicide
be called as a witness. The Court rejected the application on the ground that the interest of justice
would not be served by an adjournment of the case to enable the doctor be called as a witness.
The Supreme Court, inter alia, held that when a request is made by an accused person for the
188
maker of a statement such as is now in point to be called as a witness, such application should
not be lightly refused.
After examination-in-chief of the first witness, the accused will then cross-examine that witness.
In Tulu v. Bauchi Native Authority, the trial court after the evidence of the prosecution witness
did not allow the accused to cross-examine the witness but put some questions to the witness. SC
held the trial a nullity.
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.
S214: Examination-in-chief, Cross-examination and Re-examination
(1) The examination of a witness by the party who calls him shall he called examination-
in-chief
(2) The examination of a witness by a party other than the party who calls him shall be
called cross-examination.
(3) Where a witness has been cross-examined and is then examined by the party who
called him, such examination shall be called re-examination.
215: Order and Direction of Examination
(1) Witnesses shall be first examined-in-chief then, if' any other party so desires, cross-
examined, then, if the party calling him so desires, re-examined.
(2) The examination and cross-examination must relate to relevant facts, but the cross-
examination need not be confined to the facts to which the witness testified on his
examination- in-chief.
(3) The re-examination shall be directed to the explanation of matters referred to in cross-
examination and if a new matter is, by permission of the court, introduced in re-
examination, the adverse party may further cross-examine upon that matter.
NB: Where a witness after examination in chief does not come back for cross-examination, the
counsel at the other side is expected to make an application to the court to discountenance the
testimony and strike it out.
Limits/Exceptions:
189
Defendant or his Counsel not allowed to ask irrelevant questions or questions ask to harass a
witness- S224-226 EA.
9. RIGHT TO AN INTERPRETER – S36(6)(e) CFRN
Defendant is entitled to have, without payment, the assistance of an interpreter if he cannot

understand the language used at the trial.
It is the duty of the defendant/counsel to promptly inform the court that he does not understand
the language of the court which is English language or the language of the witness(es) Gwonto v
The State.
Where the accused person failed to do so, he cannot complain on appeal about that unless he can
prove positively that the failure to interpret the proceedings to him had occasioned miscarriage of
justice – Bayo v. FRN
The right to an interpreter cannot be raised for the first time on appeal unless such right was
denied the accused at the trial. See Udesen v. State. The legal practitioner representing the
accused is to raise the issue of an interpreter at the trial court and not on appeal. It can only be
raised on appeal if it was denied at the trial court.
In Onyia v. State where the accused person as well as the witnesses who testified in the case
testified in Igbo Language. SC held that interpretation in such circumstance was not necessary. It
held that although the right to an interpreter is a constitutional right, the procedure may however
be dispensed (waived with the consent of the court and defendant) with where the accused so
wishes and the trial judge is of the opinion that the accused does not require any interpretation of
the proceedings.
The interpreter must be competent enough Ajayi v. Zaria Native Authority. The interpreter
must be accurate and comprehensive in his interpretation of the proceedings of the court to the
accused Zaria Native Authority v. Bakari. He must interpret everything said by the witnesses,
complainant and the court.
10. RIGHT AGAINST TRIAL UPON RETROACTIVE LEGISLATION AND HEAVIER

PENALTY – S36(8) CFRN
S36(8) CFRN provides that 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.
Under this right, there are two limbs:
190
1. At the time of act or omission, 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 – Egunjobi v. FRN.
2. 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.
11. RIGHT TO ONE TRIAL FOR ONE OFFENCE – RIGHT AGAINST DOUBLE
JEOPARDY – S36(9) CFRN
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, 173 ACJL & 238 ACJA.
Prohibition of double jeopardy- defendant can plead autre fois acquit or convict. R v. Jinadu
Note the proviso- Order of Superior Court, Court Martial. See Chief of Air Staff v. Iyen (2005)
All FWLR (pt. 252) p. 404 meaning that a superior court can order it.
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.
Essential Elements of the Plea-
• First trial must have been on a criminal charge- R v. Jinadu (1948) 12 W.A.C.A. p. 368
• Must be by a court of competent jurisdiction- R v. Hodge; Chief of Air Staff v Iyen
(supra)
• Must have ended with conviction or acquittal;
• Must be same offence or one he could have been convicted of earlier, although he was
not charged with it.
• Must have same elements and where the defendant fails to prove each of these elements,
the plea cannot avail him- FRN v. Nwosu (2016) 17 NWLR (pt. 1541) p. 226 @294- 295
12. RIGHT AGAINST TRIAL FOR AN OFFENCE FOR WHICH ACCUSED HAS BEEN
PARDONED – S36(10) CFRN
No person who shows that he has been pardoned for a criminal offence shall again be tried for
that offence.
The right to pardon is the express right of the President and Governor – Ss175 and 212 CFRN.
191
In Falae v. Obasanjo (No 2), the court held that a pardon is an act of grace by the appropriated
authority which mitigates or obliterates the punishment that attaches to the offence for which the
person was convicted. 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- Okongwu v State. Onus is on the person relying on it-Okongwu v State.
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.
A pardoned person cannot be called to bar- Okonkwo v. Council of Legal Education
13. RIGHT TO REMAIN SILENT – S36(11) CFRN
No person who is tried for a criminal offence shall be compelled to give evidence at the trial.
S181 EA provides that in any criminal proceeding, where a defendant has not given evidence,
the court, the prosecution or any other party to the proceeding may comment on the failure of the
defendant to give evidence but the comment shall not suggest that the defendant failed to do so
because he was, or that he is, guilty of the offence charged.
Court may draw such inferences as it deems just. Sugh v. The State; Garba v State (1997) 35
SCNJ p. 68
Accused can decide to exercise this right when called upon to open his defence. However, where
he elects not to give evidence, he must accept the responsibility for his action as inferred from
his own conduct in the prevailing circumstances- Mbang v State (2007) All FWLR (pt. 372) p.
1862
The accused needs to be cautious when exercising this right, especially where an explanation
from him could make a difference- Igabele v State (2006) All FWLR (pt. 311) p. 1797
Draft of an oral application not offending S181 EA
My Lord, it is on record that the prosecution called 5 witnesses to prove beyond reasonable
doubt the guilt of the accused. My Lord, it is on record that particularly PW3 gave an eye witness
record that he saw the accused stab the victim to death. My Lord, it is also on record that the
192
accused did not make any statement as to his defence. My Lord, we humbly urge the court to
hold that the prosecution proved its case beyond reasonable doubt.
14. RIGHT TO BE TRIED ONLY FOR AN OFFENCE KNOWN TO LAW – S36(12)

CFRN
S36(12) CFRN provides that 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.
Aoko v. Fagbemi (1961)1 All NLR p. 400 – Charged, tried and convicted for adultery in the
south. Conviction quashed.
A-G Fed v. Isong (1986) 1 QLRN p. 75 – No penalty section, Unlawful possession of firearms
and ammunition. Offence must be defined in a written law, which also prescribes the penalty for
the offence.
It is important to note that the offence must be one known to law as at the time of commission.
See the cases of Olieh v F.R.N. (2005) All FWLR (pt. 281) p. 1746; George v F.R.N (2014)
All FWLR (pt. 718) p. 879; Oladimeji v State (2002) FWLR (pt. 131) p. 2004
The provisions of S36(12) also apply to the court martial. In Asake v. Nigerian Army Council,
where the appellant had borrowed money from his subordinate. He had been charged and
convicted for the offence of misconduct to the prejudice of military discipline. The Court of
Appeal held that offence of borrowing money from subordinate was not defined in law and
penalty provided thereof.
QUESTIONS
Mr Deyinde Adams was arrested on an allegation of armed robbery and rape for which he was
subsequently arraigned before the Federal High Court, Kano on 19th December 2019. During the
arraignment, the prosecution informed the court that there was no need to read the charges to the
defendant as same has already been read to him at the police station. When asked by the trial
judge if he wants to continue, the defendant informed the trial Judge that he does not understand
English only Yoruba and the court told him that there was nobody on ground to interpret for him
and considering the fact that he intends to round up the matter in 2 (two) days as he was going on
leave on 22nd December 2019, there was no time to waste and then asked the prosecution to
open their case.
The prosecution called 6 witnesses and when asked to cross examine them, the defendant applied
that he would like an adjournment to engage the services of a counsel. The learned trial judge
193
angrily informed him that he should have thought well to do that before the arraignment. The
Judge then went on to thoroughly cross-examine the witnesses on behalf of the defendant. Mr
Lulu Dengi, a legal practitioner with the Legal Aid Council who happened to enter into the court
while the medical doctor was giving evidence and seeing the turn the matter was taking
immediately stood up and informed the Judge that he would be interested in representing the
defendant. He equally applied for an adjournment to enable him study the case and cross-
examine the medical doctor but the court refused the application.
On 21st December, 2019, after the prosecution closed their case, the trial judge called on the
defendant to open his defence but he chose to say nothing. The prosecution thereupon informed
the court that “of course, he cannot say anything since it is obvious that he is guilty as charged,
my Lord, we implore you without wasting further time to convict him and send him to the
gallows”. The trial judge thereupon duly convicted him.
Answer the following, using relevant statutory and judicial authorities:
a) Comment on the propriety or otherwise of the request by the prosecution not to read the
charge as same has been read to the defendant at the police station
b) Comment on the request of the defendant for an interpreter and the reply of the learned judge
with regards thereto
c) Comment on the refusal of the trial judge for an adjournment sought by the defendant
d) Comment on the propriety or otherwise of the trial judge conducting the cross-examination
e) Comment on the propriety or otherwise of the refusal of the trial judge to the adjournment
sought by Mr. Dengi
f) Comment on the propriety or otherwise of the silence of the defendant in this case g)
Comment on the propriety or otherwise of the comment made by the prosecution as to the guilt
of the defendant
h) Assuming the defendant is subsequently arraigned before the High court of Justice, Kano for
the offence of robbery and sexual assault, can he raise the bar plea. Give reasons
i) What are the elements to be proved for a person to successfully raise a bar plea
j) Assuming during the course of trial, the Kano State House of Assembly due to the spike in
rape cases amended the Penal Code and increased the punishment to include castration, would
the learned judge be right to subsequently impose the said punishment?
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Give reasons.
WEEK 12- CONSTITUTIONAL SAFEGUARDS (CONTD).
OUTCOMES
1. Discuss the constitutional and statutory provisions safeguarding the rights of an accused
person in a criminal trial.
2. Discuss the limits of those rights.
CONTENTS
1. Right to be tried only for an offence known to law

2. Right to silence-(Note section 181 Evidence Act, 2011)
3. Right to one trial for one offence
4. Right against trial upon retroactive legislation
5. Right against trial for an offence for which accused has been pardoned.
6. Right to examine witnesses called by the prosecution
7. Right to interpreter
In class, tutor gives an overview – 30 Minutes
1. Students are grouped to discuss the right to be tried only for an offence known to law and
sample presentations are made – 30 minutes.
2. Students are grouped to discuss the right to silence and sample presentations are made –
30 minutes.
3. Students are grouped to discuss the right to one trial for one offence and sample
presentations are made – 30 minutes.
15 Minutes Break
4. Students are grouped to discuss the right against trial upon retro-active legislation and
sample presentations are made – 30 minutes
5. Students are grouped to discuss the right against trial for an offence for which accused
has been pardoned and sample presentations are made – 30 minutes.
6. Students are grouped to discuss the right to examine witnesses called by the prosecution
and sample presentations are made – 20 minutes.
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7. Students are grouped to discuss the right to interpreter and sample presentations are made
– 20 minutes.
8. Assessment/Quiz – 60 minutes
TREATED ABOVE IN WEEK 11
QUESTIONS
Mr Deyinde Adams was arrested on an allegation of armed robbery and rape for which he was
subsequently arraigned before the Federal High Court, Kano on 19th December 2019. During the
arraignment, the prosecution informed the court that there was no need to read the charges to the
defendant as same has already been read to him at the police station. When asked by the trial
judge if he wants to continue, the defendant informed the trial Judge that he does not understand
English only Yoruba and the court told him that there was nobody on ground to interpret for him
and considering the fact that he intends to round up the matter in 2 (two) days as he was going on
leave on 22nd December 2019, there was no time to waste and then asked the prosecution to
open their case.
The prosecution called 6 witnesses and when asked to cross examine them, the defendant applied
that he would like an adjournment to engage the services of a counsel. The learned trial judge
angrily informed him that he should have thought well to do that before the arraignment. The
Judge then went on to thoroughly cross-examine the witnesses on behalf of the defendant. Mr
Lulu Dengi, a legal practitioner with the Legal Aid Council who happened to enter into the court
while the medical doctor was giving evidence and seeing the turn the matter was taking
immediately stood up and informed the Judge that he would be interested in representing the
defendant. He equally applied for an adjournment to enable him study the case and cross-
examine the medical doctor but the court refused the application.
On 21st December, 2019, after the prosecution closed their case, the trial judge called on the
defendant to open his defence but he chose to say nothing. The prosecution thereupon informed
the court that “of course, he cannot say anything since it is obvious that he is guilty as charged,
my Lord we implore you without wasting further time to convict him and send him to the
gallows”. The trial judge thereupon duly convicted him.
Answer the following, using relevant statutory and judicial authorities:
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a) Comment on the propriety or otherwise of the request by the prosecution not to read the
charge as same has been read to the defendant at the police station
b) Comment on the request of the defendant for an interpreter and the reply of the learned judge
with regards thereto
c) Comment on the refusal of the trial judge for an adjournment sought by the defendant
d) Comment on the propriety or otherwise of the trial judge conducting the cross-examination
e) Comment on the propriety or otherwise of the refusal of the trial judge to the adjournment
sought by Mr. Dengi
f) Comment on the propriety or otherwise of the silence of the defendant in this case
g) Comment on the propriety or otherwise of the comment made by the prosecution as to the
guilt of the defendant
h) Assuming the defendant is subsequently arraigned before the High court of Justice, Kano for
the offence of robbery and sexual assault, can he raise the bar plea. Give reasons
i) What are the elements to be proved for a person to successfully raise a bar plea
j) Assuming during the course of trial, the Kano State House of Assembly due to the spike in
rape cases amended the Penal Code and increased the punishment to include castration, would
the learned judge be right to subsequently impose the said punishment?
Give reasons.
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WEEK 13 – TRIAL 1: ATTENDANCE OF PARTIES AND ARRAIGNMENT
OUTCOMES
1. Explain what is the legal effect where:
a. The accused person is absent at his trial

b. Where the complainant is absent
c. Where both the accused and the complainant are absent
d. Where a material witness is absent
e. Counsel to the accused is absent
2. Explain the duties and roles of Registrar, Judge and Counsel in criminal trials
3. Conduct a valid arraignment
4. Explain the various options open to an accused person on arraignment
5. Explain the meaning and procedure for plea bargaining
CONTENTS
1. Attendance of the accused in court

2. Attendance and duties of counsel in court
3. Attendance of the complainant in court
4. Attendance of vital witnesses in court.
5. Roles and duties of Registrars and Judges in a criminal court
6. Arraignment
7. Options open to an accused person on arraignment.
8. Meaning and procedure of plea bargaining,(Note Sections 270 ACJA, 2015; 75 & 76
ACJL, Lagos, 2011)
1. In the class tutor gives an overview – 30 minutes.
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2. Students are grouped to discuss the effect of absence of the accused, the complainant and
counsel as well as absence of a vital witness and sample presentations are made – 20
minutes.
3. Students are grouped to discuss and make sample presentations on the roles and duties of
counsel, registrar and judge in criminal trials – 20 minutes
4. Students are grouped to conduct a valid arraignment using the ********scenario. – 30
minutes
5. Tutor and students interact on the possible objections an accused may raise upon
arraignment – 20 minutes.
15 MINUTES BREAK
6. Students are grouped to discuss and make sample presentations on the effect of the plea
of guilty by an accused – 20 minutes.
7. Students are grouped to discuss and make sample presentations on the plea of not guilty
by an accused person. – 20 minutes.
8. Students are grouped to discuss and make sample presentations on the plea of not guilty
by reason of insanity – 20 minutes.
9. Tutor and students interact on the effect of an accused person standing mute or refusing
to plead – 20 minutes
10. Students are grouped to discuss the meaning and procedure of plea bargaining – 20
minutes
SOME PRE-TRIAL ISSUES
DUTY OF COUNSEL AND COURT IN CRIMINAL TRIALS
DUTY OF PROSECUTING COUNSEL:
(a) He is to be fair and impartial. His interest primarily is to present the facts as they are, to see
that justice is done and not to secure a conviction. Thus, it is not proper for a prosecuting counsel
to insist on the maximum punishment being imposed on the accused person. See Enahoro v.
The State (1965) 1 All NLR 125. In R. v. Sugarman (1936) 25 Cr. App. R. 109, the Criminal
Appeal Court said "the business of the state counsel is fairly and impartially to exhibit all the
facts to the jury. The crown has no interest in procuring a conviction but that the right person be
convicted. Where a counsel refuses to rely on the real strength of his case and thinks he can
strengthen it by things collateral in a manner contrary to the law, he only weakens his case and
may prevent a verdict which ought to be obtained".
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In this case, questions were put to the accused on cross examination to show that he received
other stolen goods not in issue and no evidence was adduced. The appellate Court quashed the
conviction on this ground.
(b) He shall not withhold the existence of any adverse decision on a point of law favourable
to the accused. In Anani v. R (1951) 13 W.A.C.A. 196 the Court held that a counsel can do any
of the following where an adverse decision exists: (a) if the previous decision is by a lower
Court, he may invite the Court to overrule it, (b) if by a Court of coordinate jurisdiction, it is
open to him to distinguish the previous decision. In the case counsel insisted on a submission
which he had personally made in a previous case and had been rejected. He did not refer to the
existence of the previous authority.
(c) Duty to make available to the accused person evidence favourable to him. See The State
v. Odofin Bello (1967) NMLR 1, Rule 37(6) RPC 2007.
Summary:
• To assemble facts, compile the proof of evidence, materials and exhibits relevant to the
case for filing in court;
• To interview witnesses and prepare them for trial;
• Be a prosecutor not a persecutor- Rule 37(4) RPC, R. v. Sugarman;
• Be fair and impartial Enahoro v. The State;
• Not to withhold the existence of adverse facts or court decisions favourable to the
defence- Anani v. R, Dariye v. FRN [2015] 10 NWLR (Pt. 1467) 325 at 355;
• Make available to the defendant evidence favourable to him- The State v. Odofin Bello
DUTY OF DEFENCE COUNSEL:
(a) He has a duty not to return the brief of person charged with a capital offence. See R. v.
Uzorukwu (1958) 3 FSC 14 and he shall also undertake the defence of an accused not
withstanding his personal opinion on the guilt of the accused person so that innocent persons are
not convicted without having the benefit of the available defence to them by the law. See Rule
37(1)(2) RPC 2007.
(b) He must undertake the defence of a person charged with an offence - particularly a
capital offence with reasonable skill and attention. In Sunday Udofia v. State (1984) ANLR
444, the accused was charged with murder - matricide. During the trial, the counsel assigned to
defend him was absent on seven occasions - during the presentation of the prosecution's case and
on three occasions during the presentation of the defence. He neither cross-examined the
prosecution witnesses nor extracted any evidence from the appellant. The case was later assigned
to another counsel. Worse still, the counsel simply rested his case on that of the prosecution. The
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appellant was convicted. But the Supreme Court ordered a retrial. This is what Justice Oputa
(JSC) said at p. 539:
In every culture, the crime of matricide is shocking, revolting and a bit unnatural. Normal people
do not go about killing their own mothers. Was the appellant insane? Why did he commit such a
heinous and unnatural crime? What were his reasons if he was capable of reasoning? These are
some of the compelling questions which should normally and naturally suggest themselves to the
average lawyer called upon to handle the defence in a case like this. Unfortunately, the counsel
did none of these things.
Note also it is not ideal nor professional for the defence counsel moreso in a murder case to
threaten withdrawal simply because he does not know who will pay his fees. In Udo v. The
State (1988) 3 NWLR (pt. 82) 316, the counsel assigned to the accused threatened withdrawal
from the case. He was unsure of who would pay his fees. But to worsen matters, when he was
asked to address the Court, he simply said he would leave the matter to the Court. But much
within expectation, the Supreme Court strongly rebuked this attitude. The Court felt such
conduct was unbecoming of a gentleman at the Bar and it was even honour in itself to be invited
by the State to defend an accused person (See Kayode Eso (JSC) is opinion in that case).
• Defend the accused diligently Sunday Udofia v. State, Udo v. The State;
• Not to return the brief of the defendant charged with capital offence. Rule 24 RPC, (Cab
rank rule), R v. Uzorukwu [1958] 3 FSC 14;
• He should not reveal the secret of his client- Rules 19(2) and 21(1) RPC.
• He should not be a witness in a case in which he is handling. He should not personally
depose to affidavits.
• He should not conjure facts or manufacture evidence.
• He should prepare adequately for the case.
• Be in court always.
DUTY OF THE PRESIDING JUDGE:
A judge sitting over a Criminal case should always appreciate that he is an umpire and as such
should never enter into the arena of conflict - so that he does not have a befogged vision of the
case. The law allows a judge, to put questions to the witnesses or even call witnesses. But they
must be directed towards a purpose. It must be for the just determination of the case. Section 246
Evidence Act 2011. For the accused is always presumed innocent until proved guilty subject
only to permitted circumstances. Section 36(5) 1999 Constitution.; Section 135 (1) Evidence
Act 2011.
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The cumulative effect of the foregoing is that a judge must also bear in mind the need to allow
the accused enjoy the benefit of any doubt as to his guilt where it exists. He should not take over
the prosecution of the case from the prosecution. He must not become a "Hippy Harliet". He
must not talk too much. In Uso v. The Police (1972) 11 S.C. 37; Okoruwa v. The State [1975]
ANLR 262 The trial Magistrate and judge respectively talked too much; they took over the
prosecution of the cases; asked damaging questions from the accused and relied on the evidence
there from in convicting the accused persons. The Supreme Court held that those convictions
could not stand because the judges became inquisitors; they did not allow the prosecutions to
prove the guilt of the accused beyond reasonable doubt. Since this was fundamental, the accused
persons were discharged and acquitted. See also Onuoha v. The State (1989) 2 N.W.L.R (Pt.
101) 23; Ayub-Khan v. The State (1991) 2 N.W.L.R (pt. 172). 127.
Summary:
• Not to be partial but be fair. Mohammed v. Nigerian Army

• Not to be a “hippy harliet”- Uso v. The Police, Okoruwa v. The State
• Allow the defendant to enjoy the benefit of doubt as to his guilt – Onuoha v. The State
DUTY OF COURT REGISTRAR
• Prepare a cause list

• keep courts file and records;
• Accept documents for filing;
• Ensure all documents and processes are served and brought to the attention of the Judge
on the day of trial;
• Prepare records of court proceedings and make same available to parties;
• To interpret proceedings or arrange for interpreters;
• He is to administer oaths/affirmation on witnesses,
• He is to read the charge, receives and mark exhibits and keep the exhibits,
• When death sentence is passed, he is to ensure that a certificate of death is issued and
signed by the judge for onward transmission to the authorities concerned.
SITTINGS OF THE COURT
The court is open for business throughout the year. The court sits at 9:00am – 4:00pm from
Monday – Friday. Saturday, Sunday and public holidays, days within the week of Easter
vacation, and days within annual vacations are non-juridical days. No superior court of record
sits on non-juridical days.
Section 40 (1) Magistrate Court Law (Lagos State) 2009 provides: "The Court shall be opened
throughout the year except on Saturdays, Sundays and public holidays…". Section 40(2)
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provides that notwithstanding Section 40(1) at least one Court in every magisterial district shall
be open and available for business on any given Saturday for the hearing of matters relating to
remand, bail and other non- custodial disposition. Generally, in practice however, Court usually
sits from Monday to Friday.
Where proceedings are held on Sunday and public holiday - which are dies non juridicus - such
proceedings are invalid, null and void.
However, in Ososami v. The COP 14 WA.C.A. 24, the Magistrate pointed it out to the parties
142 that the day to which the case was adjourned was a public holiday. The appellant urged the
Magistrate to take the evidence of his witness because it might be difficult to procure him
another time. The Magistrate convicted the appellant. He appealed on the basis that the
Magistrate sat on a holiday. It was held that although there was irregularity, since it was done in
the interest of the defence and at its request, no miscarriage of justice could be said to have been
occasioned, the irregularity notwithstanding. Thus, the court may subject to the agreement of the
parties, sit on non-juridical day. Also, in Olu Falae v Obasanjo, it was held that the court on sit
on non-juridical days to hear an election matter.
Also, during annual vacations, there is usually a vacation judge in the High Court who hears
emergency cases and other matters that require urgency. In the Magistrates’ Courts, at least one
Magistrate shall sit in every Magisterial District for hearing cases of bail, remand and other non-
custodial disposition. See Section 40(2) Magistrates’ Court Law of Lagos 2009.
WHAT IS TRIAL?
A judicial examination and determination of the disputing issues between the parties in
accordance with the law.
A full criminal trial will take us through the following processes:
• Preliminary issues to filing of case in court,

• Arraignment,
• Examination-in-chief of witnesses,
• Cross examination,
• Re-examination,
• Tendering of exhibits,
• Address of counsel,
• Judgment,
• Allocutus,
• Sentence and
• Appeals.
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Appearances in court:
The prosecution is to announce appearances first, thereafter, counsel to the defendant is to

announce appearance.
Legal Representation Capital Offences:
There is mandatory legal rep in capital offences – S36(4) CFRN, 349(6)(b) ACJA, 263 ACJL
Lagos. Josiah v. State, Udofia v. State, Adeoye v. The State.
NON-APPEARANCE OF PARTIES AT TRIAL:
1. COMPLAINANT (PROSECUTOR):
When the case is called, the defendant appears voluntarily in obedience to the summons or is
brought before the court under a warrant, and the complainant having, to the satisfaction of the
court, had due notice of the time and place of hearing, does not appear in person or in the manner
authorised by a written law, the court may dismiss the complaint except where there is a good
reason by the prosecutor then the court may adjourn. Ss 351 ACJA, 232 ACJL Lagos, 351
ACJL Kano.
2. DEFENDANT:
His attendance in court is mandatory during the whole of his trial. Ss 166 ACJA, 208 ACJL
Lagos. In Adeoye v. State (1999) 6 NWLR(Pt.605) 74. The Supreme Court held that accused
must be present throughout his trial.
According to Ss 352 ACJA, 235 ACJL Lagos, 352 ACJL Kano, when a case is called in which
summons has been issued and the defendant does not appear or pleads guilty under the
provisions of section 135 of this Act (for ACJA not Lagos) and no sufficient excuse is offered
for his absence, then the Court, if satisfied that the summons has been duly served, shall issue a
warrant, called a bench warrant, for his arrest or if not satisfied that the summons has been duly
served, the Court shall adjourn the hearing of the case to some future date, in order that proper
service shall be effected or until the defendant be arrested as the case may be.
EXCEPTIONS:
1. S135 ACJA provides that:

(1) Where a Magistrate issues a summons in respect of any offence for which the penalty
is a fine not exceeding N10,000.00 or imprisonment for a term not exceeding six months
or both, the Magistrate, on application of the defendant:
204
(a) may dispense with the personal attendance of the defendant where the offence is
punishable by fine or imprisonment or both; and
(b) shall dispense with personal attendance of the defendant where the offence is
punishable by fine only if the defendant pleads guilty in writing or appears and so pleads
by his legal practitioner.
Note: in Lagos by S41 ACJL Lagos, there is no prescribed term or fine, it is simply at
the discretion of the magistrate if he sees sufficient cause.
2. Where the accused/defendant is interrupting the proceedings in order to make his trial
impossible. Ss S266(a) ACJA, 208 ACJL Lagos.
3. Where an interlocutory application is to be heard, the defendant need not be present in

court. S266(b) ACJA.
4. Where the court suspects the accused/defendant to be of unsound mind and he stands
mute before the court. Ss 278(2) ACJA, 217(2) ACJL Lagos.
5. Where the Court, in exercise of its discretion, has granted bail to the defendant and the
defendant, in disregard for the court orders, fails to surrender to the order of court or fails
to attend court without reasonable explanation, the court shall continue with the trial in
his absence and convict him unless the court sees reasons otherwise, provided that
proceedings in the absence of the defendant shall take place after two adjournments or as
the court may deem fit. S352(4) ACJA, S352(4) ACJL Kano, NO EQUIVALENT IN
LAGOS.
Note that under S352(5) ACJA, S352(5) ACJL Kano, NO EQUIVALENT IN

LAGOS, the court shall impose a sentence only when the defendant is arrested or
surrenders to the custody of the court. The court will not impose sentence in the absence
of the defendant.
3. BOTH PARTIES:
Ss 353 ACJA, 236 ACJL Lagos, 353 ACJL Kano provides that where the case is called and
neither the prosecutor nor the defendant appears, or the defendant appears and the prosecutor
does not appear, the court shall make such order as the justice of the case requires. The court
may, in the order, include such direction as to the payment of costs as the court considers fit, and
the payment of the costs may be as if it were a fine.
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4. MATERIAL WITNESS
Where a material/vital witness is absent in court, the case will be adjourned to another day on the
application of the party calling the witness and upon satisfying the court that the absence of the
witness is not deliberate. The court may compel attendance of witnesses in court through witness
summons or subpoenas.
COMMENCEMENT OF TRIAL
ARRAIGNMENT – SS 211 ACJL, 271(2) ACJA, 273 ACJL Kano. Kajubo v. The State
(1988) 1. NWLR 72 (Pt. 73). Ogunye v. State (1999) 5 NWLR (Pt. 604) 548; Kalu v. State
(1998) 13 NWLR (Pt. 583, 531), Yahaya v. The State (2002) FWLR (pt. 93) P. 2044.
The procedure may be set as follows:
• The prosecutor files the charge at the registry of court and requests for leave (where
required).
• The defendant is brought before the court unfettered.
• The registrar calls the case for hearing.
• The defendant is required to proceed to the dock once his name is called.
• The defendant shall be placed before the court unfettered.
• The Registrar shall read out and explain the information/charge to the defendant and to
the satisfaction of the court.
• The defendant is required to plead instantly to the charge/information (guilty or not
guilty).
• Counsel to the defendant cannot enter a plea for and on behalf of his client, the defendant
does it himself. R v. Pepple 12 WACA 441.
• Where the charge/information is not read and explained to the defendant and his plea
taken, the trial is a nullity. IGP v. Rosseck [1958] LLR 73 Kajubo v. The State [1988] 3
SCNJ (Pt. 1) 79, Udo v. The State, Imam v. FRN [2019] 8 NWLR (Pt.1674) 197 SC,
SS 211 ACJL, 271 ACJA, 273 ACJL Kano.
• The court shall record the plea entered by the defendant. Ss 271(3) ACJA, 273(3) ACJL
Kano, Edu v. The State [1986] 5 NWLR (Pt. 42) 530.
• Where several defendants are charged before the Court, each defendant must enter his
plea personally to the charge/information. Adamu v. The State [1986] 3 NWLR (Pt.32)
865.
• Where several allegations are made against the defendant in a charge/information, each
count/charge shall be read to him and his plea taken. Ayinde v. The State [1980 2 NCR
242.
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• Where the defendant failed to plead to the charge read to him or stands mute, the court
shall record a plea of not guilty for him or conduct investigation to determine the cause of
muteness – whether it is of malice or an act of God. Ss 217 ACJL, 276(3), 278 ACJA,
278(3), 280 ACJL Kano.
• If the defendant’s muteness is out of malice, the court shall record a plea of not guilty for
him and the trial shall continue. Ss 215 ACJL, 276(1) ACJA, 278(1) ACJL Kano, Gaji
v. The State [1975] 5 SC 61, Yesufu v. The State [1972] 12 SC 143.
• Where the defendant’s muteness is not of malice but visitation of God, his trial shall be
suspended and the defendant released on bail or detained in an asylum. Ss 219 ACJL,
276(4) ACJA, 278(4) ACJL Kano, Karimu v. The State [1989] 1 NWLR (Pt. 96) 124,
Adams v. DPP [1966] 1 ALL NLR 13.
• The defendant may be examined medically to determine his mental state or state of mind
to enable the court decide whether he can stand trial. Ss 278(1) ACJA, 219(2) ACJL,
280(1) ACJL Kano.
• If the defendant is deaf or dumb, the court shall obtain his plea in a manner understood by
him, by using sign language, lip reading or writing.
• Where a charge/information is read to a defendant, instead of entering his plea to the
charge/information, he may raise preliminary objection(s) to the charge/information (if
any) or to the jurisdiction of court. However, S221 ACJA provides that objections shall
not be taken or entertained during proceedings on the ground of imperfect or erroneous
charge. See also S158 ACJL.
• After the plea has been taken, the defendant may raise any objection to the validity of the
charge or the information at any time before judgement provided that such objection shall
only be considered along with the substantive issues and a ruling thereon made at the
time of delivery of judgement. S396(2) ACJA
• Quare: what then is the difference between Ss 221 and 396(2) ACJA?
• Failure to comply with the requirements for a valid arraignment renders the whole trial a
nullity. – Kajubo v. State; Ogunye v. State; IGP v. Rossek; Toby v. State.
OPTIONS OPEN TO AN ACCUSED:
1. PRELIMINARY OBJECTION
He may raise a preliminary objection to the jurisdiction of the Court to try him or to a defect in
the charge. His objection shall be duly considered and if upheld, he shall be discharged.
However, if overruled, then he shall be asked to plead.
Where objection to jurisdiction is raised, the court may rule on it before continuing with the trial.
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Types:
• Statute barred,
• Pardon,
• Double trial- autre fois acquit or autre fois convict
• Procedural e.g., defective charge
• AG Fed v Abubakar; offence, offender, quorum of court, due process.
Types of pleas the defendant may enter:
• Refusal to plea,
• Plea of pardon,
• Plea of autrefois acquit or autrefois convict,
• Plea of guilty,
• Plea of not guilty,
• Plea of not guilty by reason of insanity,
• Plea bargain.
2. PLEA OF NOT GUILTY S273 ACJA, 212 ACJL Lagos, 275 ACJL Kano.
A defendant who pleads not guilty shall be deemed to have put himself to trial.
3. PLEA OF GUILTY S274 ACJA, 213 ACJL Lagos, 276 ACJL Kano.
S274 of ACJA provides that
(1) Where a defendant pleads guilty to an offence with which he is charged, the court shall:
(a) record his plea as nearly as possible;
(b) invite the prosecution to state the fact of the case; and
(c) enquire from the defendant whether his plea of guilty is to the fact as stated by the
prosecution;
(2) Where the court is satisfied that the defendant intends to admit the truth of all the essential
elements of the offence for which he has pleaded guilty, the court shall convict and sentence him
or make such order as may be necessary, unless there shall appear sufficient reason to the
contrary.
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(3) Where the defendant pleads guilty to a capital offence, a plea of not guilty shall be recorded
for him.
• The defendant may withdraw or change his plea of guilty to that of not guilty at any time
before judgment. R. v. Guest (1964) 3 ALL ER 385, Baalo v. FRN [2016] 13 NWLR
(Pt. 1530) 400 SC. The charge will be read to the accused and a fresh plea taken.
• The defendant may plead not guilty to the charge but guilty to an offence not charged Ss
214 ACJL, 275 ACJA, R v. Kelly [1965] 49 CAR 352.
• 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- Aremu v COP.
• Invite the prosecution to state the facts of the case again (summary of evidence)- Osuji v
IGP
Effect of plea of guilty:
The plea of the defendant must not be ambiguous, otherwise the Court shall not convict upon it,
Onuoha v. The Police (1956) NNLR 96.
Facts stated by the prosecution must support the charge to which the defendant has pleaded
guilty otherwise the Court shall not convict, Abele v. Tiv N. A. (1965) NNLR 425.
Where the plea of guilty is inconsistent with any statement made by the defendant either to the
police or in Court, he shall not be convicted on his plea: See R. v. The Middlesex Justice
Exparte Rubens (1970) 54 Cr. App. Rep. 183
Where the offence to which the defendant has pleaded can only be proved by expert evidence,
such evidence must be tendered before he can be convicted on his plea, Stevenson v. The Police
(1966) 2 All NLR 261; Ishola v. The State (1969) NMLR 259, Essien v. The King 13
W.A.C.A 6.
Where the offence charged is a capital offence, a plea of not guilty shall be recorded
notwithstanding a plea of guilty by the accused, Sanmabo v. The State (1967) N.M.L.R 314; Ss
213 (3) ACJL, 274(3) ACJA 276(3) ACJL Kano.
A plea of guilty may be withdrawn with the leave of Court at any time before conviction but not
after, R. v. The Guest (1964) (3) All E.R. 385.
The defendant may plead not guilty to the offence charged but guilty to another offence. Where
the Court can convict of the other offence, it may with the consent of the prosecution accept this
plea and may proceed to convict the accused on it. If the Court rejects the plea and proceeds to
try the accused on the charge against him, but found him not guilty of that charge, it cannot
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convict him of that charge to which he has pleaded guilty, R. v. Kelly (1965) 9 Cr. App. Rep.
352, Wilson v. R. (1959) 4 F.S.C. 175.
The court may consider the plea to the lesser offence taking into consideration:
• The jurisdiction over the offence

• The prosecutor’s consent
Where the defendant elects to plead to a lesser offence and the court accepts plea, the court
will follow these steps:
1. Inquire of the prosecution as to whether he consents to the plea or not

2. If the prosecutor consents, the court will direct that the prosecution amend his charge to
reflect the lesser offence.
3. Thereafter, the defendant is asked to take the plea again.
4. The court will record plea as nearly as possible in the words used.
5. The procedure will be followed as to a plea of guilty.
6. However, where the prosecutor does not consent, the court will proceed to trial for the
graver offence stipulated in the charge.
NB: 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 R v Kelly.
4. FAILURE TO PLEAD DUE TO MALICE OR OTHERWISE Ss 276 ACJA, 215 ACJL

Lagos, 278 ACJL Kano.
S276 ACJA provides that:
(1) Where the defendant, when called upon to plead remains silent or refuses to answer,
the Court shall enter a plea of not guilty on his behalf.
(2) A plea entered under subsection (1) of this section shall have the same effect as if the
defendant actually pleaded to the charge.
(3) The Court may inquire into the mental state of the defendant, and if the court is
satisfied that the defendant is of sound mind, the court shall proceed with his trial.
(4) Where the court finds that the defendant is of unsound mind, the provisions of this
Act in relation to persons of unsound mind shall apply.
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He may refuse to plead to the charge. He shall thereafter be asked by the Court for his reasons.
Where the Court is of the view that those reasons are not valid and the accused still refuses to
plead, a plea of not guilty" shall be entered on his behalf and the trial shall proceed. See Gaji v.
The State (1975) 5 S.C. 60, Ss 276 ACJA, 215 ACJL Lagos.
He may stand mute and the Court shall call evidence to determine whether his muteness is of
malice or due to the visitation of God. If the Court finds that his muteness is of malice, a plea of
not guilty shall be entered and the trial shall proceed. See Yesufu v. The State (1972) 12 S.C.
143, and The State v. Sawyer C.C.H.C.H/4/73 at page 11. Ss 217 ACJL, 276(3), 278 ACJA,
278(3), 280 ACJL Kano.
However, if his muteness is of the visitation of God (e.g., insanity) the trial shall not proceed and
the accused shall be ordered to be detained until the pleasure of the Governor is known. See R. v.
Ogor (1961) 1 All NLR 70, Ss 217 ACJL, 276(3), 278 ACJA, 278(3), 280 ACJL Kano.
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. If so, trial
shall proceed; if not, the accused shall be remanded in custody or released on bail until the
visitation is over, or until the Governor's pleasure is known.
5. PLEA OF AUTREFOIS ACQUIT OR AUTREFOIS CONVICT Ss 277 ACJA, 216 ACJL

Lagos, 279 ACJL Kano
S277 ACJA provides;
(1) A defendant against whom a charge or information is filed may plead that:
(a) by virtue of section 238 of this Act he is not liable to be tried for the offence
with which he is charged; or
(b) he has obtained a pardon for his offence.
(2) Where either of the pleas under subsection (1) of this section is raised in any case and
denied to be true in fact, the court shall determine whether such plea is true in fact or not.
(3) Where the Court holds that the facts alleged by the defendant do not prove the plea, or
if it finds that it is false in fact, the defendant shall be required to plead to the charge or
information.
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(4) Nothing in this section shall prevent a defendant from pleading that, by virtue of some
other provision of law, he is not liable to be prosecuted or tried for an offence with which
he is charged.
The defendant may enter a plea of autrefois acquit or autrefois convict otherwise known as “Bar
Plea” to a charge/information read to him. Ss 36(9) CFRN. A man is not to be prosecuted twice
for the same offence.
This issue of this special plea shall be tried by the Court and if found proved, the accused shall
be discharged. If found not proved, the accused shall be asked to enter a plea and the Court shall
proceed with the trial.
The doctrine of autrefois acquit or autrefois convict applies whether the previous acquittal or
conviction is by a local Court or foreign Court, Treacy v. DPP. However, where an accused was
absent and takes no part whatsoever in the foreign proceedings and he does not run the risk of
prison or fine, nor exposed to any true danger or evil or jeopardy in respect of the foreign
conviction, he cannot succeed on the plea of autrefois convict, Keith Williams v. The Queen.
Elements of plea of autrefois acquit or autrefois convict:
• The defendant must have been tried on a criminal charge- R v. Jinadu 12 WACA 368.
• The trial must be before a court of competent jurisdiction R v. Hodge 6 NLR 56.
• The trial must have ended with an acquittal or a conviction IGP v. Marke.
• The offence for which the defendant had been tried must be the same as the new charge
or have the same elements as the new charge- R v. Noku. 6 WACA 203. R. v. Edu 14
W.A.C.A. 163, DPP v. Connelly (1964) 48 Cr. App. Rep. 183.
6. PLEA OF PARDON Ss 277 ACJA, 216 ACJL Lagos, 279 ACJL Kano, 36(10) CFRN.
The President or Governor of a State may grant pardon to any person concerned with or
convicted of an offence. Ss 36(10), 175 & 212 CFRN, Falae v. Obasanjo.
To prove pardon, the convict may be required to tender certificate of pardon. It is the duty of a
person who has been pardoned to prove it by producing the instruments or certificate of pardon
Okongwu v. State.
An application for pardon is made to the committee on prerogative of mercy. Pardon is usually
granted to a convicted person while amnesty is granted to a person not convicted.
Pardon is capable of removing any stigma attached to a conviction of an offence and restore the
convict to the position he was before conviction.
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7. PLEA OF NOT GUILTY BY REASON OF INSANITY
The defendant may plead not guilty by reason of insanity and the Court shall proceed with trial
and determine:
(a) whether the accused did commit the offence; and
(b) 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 the Court shall not decide
the issue of insanity.
If he is found to have committed the offence and to be insane at the time of committing it, he
shall be remanded in prison custody until the Governor's pleasure is known, R. v. Ogor (1961) 1
All NLR
8. PLEA BARGAINING Ss 270 ACJA, 75, 76 ACJL Lagos, 272 ACJL Kano
• It is an agreement between the prosecution and the defendant to settle the case against the
defendant by reducing the charge/punishment subject to the defendant making some
refunds of money or forfeiting some of his properties to the State provided the agreement
receives court’s approval.
• In a plea bargain agreement, the accused/defendant is opting to plead to a lesser charge to
get a lighter sentence. The accused/defendant is requesting for concession from the
prosecution.
S494(1) ACJA defines it as:
• A process 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.
Types of plea bargaining
• Charge bargain – the prosecutor makes an arrangement to drop some charges made
against the defendant if the defendant is ready to plead guilty to some of the charges
made against him.
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• Sentence bargain – the prosecutor agrees to a lesser punishment for the defendant if the
defendant pleads guilty to the charge. For this agreement to succeed, there must be an
alternative punishment to the charge.
Procedure for plea bargain:
• See Ss 75 & 76 ACJL, 13(2) EFCC Act;

• Accused pleads guilty to the charge or part of the charge or to a lesser offence and agrees
with the prosecution to forfeit some of his properties to the State (charge bargain).
• The accused may be told in advance what his sentence would be if he pleads guilty to the
charge (sentence bargain). S270(4)(b) ACJA.
• The prosecutor may obtain the consent of the victim to enter into plea bargain before or
during the presentation of case for prosecution but not after defence is entered S270(2)
ACJA
• The terms of agreement will be presented to the court and the court enters judgment.
• The agreement may include compensation or restitution.
• The agreement must be in writing and signed by the parties and must contain the fact that
the defendant has been informed of his right to:
(i) remain silent,

(ii) consequences of not remaining silent,
(iii) not to make any confession or admission that may be used in evidence against
him,
(iv) disclosure of the full terms of the agreement.
• The court should not participate in the agreement leading to plea bargain.
• The prosecutor may inform the court of the contents of the agreement with a view of
seeking direction in general terms.
• The prosecutor may inform the victim the contents of the agreement as to the inclusion of
compensation or restitution.
• It is the duty of the prosecutor to inform the court the contents of the agreement.
• The court must confirm the correctness of the agreement from the defendant before
entering it as judgment.
• The court must also confirm from the defendant whether the agreement was entered into
voluntarily.
Plea bargain is usually entered into by the prosecution where:
(a) There is insufficient evidence to prove the offence charged beyond reasonable doubt;
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(b) Where the defendant has agreed to return the proceeds of the crime or make restitution to
the victim or his representative;
(c) Where the defendant in a case of conspiracy has fully cooperated with the investigation
and prosecution of the crime by providing relevant information for the successful
prosecution of other offenders;
(d) Where the interest of justice demands that the prosecution should enter into it and that it
will not amount to abuse of legal process to do so.
QUESTIONS
Alhaji Barak Belema recruited Malik Babados, Mitch Rapp, and Stan Hurley as his foot soldiers.
On January 14, 2020 Malik Babados concealed in the sole of his shoe 20 kilograms of cocaine,
Mitch Rapp concealed in the sole of his shoe 15 kilograms of cocaine and Stan Hurley concealed
in his hand luggage 25 kilograms of heroine. They were all scheduled to fly from Murtala
Muhammed Airport Lagos to The Netherlands, Singapore and United Arab Emirates
respectively.
Inspector Bobosky Apolla, a senior custom official in charge of electronic and manual search at
the airport was contacted by Alhaji Barak Belema through text message to accord his boys all
necessary protection and assistance as usual. Unknown to them Inspector Bobosky the previous
night having attended all night Gospel Crusade surrendered his life to God and washed his hands
off from the business. When Malik Babados, Mitch Rapp and Stan Hurley arrived at the
electronic screening section in the airport, the screening machine revealed the narcotic substance
and they were all arrested. During interrogation, they all confessed and Alhaji Barak Belema was
arrested. Alhaji Barak during police interrogation confessed that the drugs were supplied to him
by Bakayoko Mumina who was subsequently arrested.
At their arraignment in the Federal High Court Lagos, the Police orderly to the judge, read the
charge at once to all the accused persons and called on them individually to plead to the four
different counts in the charge. Alhaji Barak Belema pleaded guilty to the Charges against him
and was sentenced immediately. Malik Babados and Mitch Rapp were leg cuffed because of
their muscular body to prevent them from escaping. Malik refused to plead to the charge and he
was immediately cited for contempt and a plea of not guilty was recorded for him while Mitch
stood mute when called upon to plead. Stan Hurley did not take his plea but rather raised a
preliminary objection to his trial upon the charge on the ground that the prosecutor failed to
obtain consent before filing the charge and that the charge ought to have been filed at Federal
High Court Abuja since it is a Federal offence. The court forced him to plead and he pleaded
‘plea bargain’. Bakayoko Mumina who speaks and understands only pidgin English when he was
asked to plead said ‘I de craze when I sell the thing to am’.
215
ANSWER THE FOLLOWING QUESTIONS:
A. Using judicial and statutory authorities comment on the validity or otherwise of the
arraignment of the defendants in the above scenario as it relates to the appearance of the
defendants in the dock.
B. Comment with the aid of judicial and statutory authorities on the procedure adopted in reading
the charge to the Defendants.
C. Comment on the propriety or otherwise of the Orderly reading the charge to the defendants.
D. Comment on the propriety or otherwise of the judge who sentencing Alhaji Barack Belema
immediately upon his plea. What are the duties of the Judge, Prosecution Counsel and Defence
Counsel in the circumstance?
E. Comment on the attitude of Malik Babados who refused to plead to the charge and the
procedure adopted by the Court.
F. Comment on Mitch Rapp who stood mute when asked to plead to the charge.
G. Comment on the propriety or otherwise of the objection raised by Stan Hurley at that stage of
the trial instead of taking his plea. At what stage of the trial would the objection have been
properly raised? Comment on the propriety of the ground of the objection.
H. Comment on the propriety or otherwise of the plea of ‘plea bargain’ subsequently entered by
Stan Hurley.
I. Comment also on the propriety or otherwise of the plea of Bakayoko Mumina and what the
trial court is required to do if any.
J. Mention the Roles and duties of Registrars and Judges in a criminal trial.
216
WEEK 14 – TRIAL 2 (TRIAL PREPARATION AND EVIDENCE).
OUTCOMES
1. Explain and discuss the burden and standard of proof, basis for admissibility of evidence
in criminal trials, competence and compellability of witnesses
2. Develop a case theory/trial plan
3. Explain the types, issue and use of subpoena and witness summons
4. Prepare witnesses for trial
5. Prepare and deliver an opening address
CONTENTS
1. Rules of evidence as to burden and standard of proof, admissibility of evidence-computer

generated evidence; confessional statement; expert evidence; Police report; hearsay
evidence; refreshing memory; hostile witness; competence and compellability of
witnesses, corroboration of evidence.
2. How to develop case theory/trial plan
3. Types, issue and use of subpoena and witness summons
4. Preparation of witnesses for trial
5. Contents of opening address and delivery
1. In class, teacher gives an overview – 30 minutes

2. Tutor presents a guide/checklist of how to prepare a case theory/trial plan – 30 minutes
3. Students are grouped to discuss the burden and standard of proof, the basis of
admissibility of evidence, competence and compellability of witnesses – 15 minutes
4. Students are grouped to discuss and make sample presentations on trial plan based on the
********scenario – 30 minutes
5. Students are grouped to discuss and make sample presentations on the use of subpoena
and witness summons – 15 minutes
15 MINUTES BREAK
6. Students are grouped to interview proposed witnesses for the prosecution – 40 minutes
7. Students are grouped to interview proposed witnesses for the defence – 40 minutes
8. Students are grouped to prepare a standard opening address for the prosecution and
defence, respectively – 20 minutes
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BURDEN AND STANDARD OF PROOF
BURDEN OF PROOF
The term “burden of proof” has two basic meanings. First, it relates to a burden or obligation of
persuading the court to enter judgment in favour of a particular person. i.e. legal or persuasive
burden. Second, it is used in the sense of the duty to introduce evidence in support or rebuttal of
a specific issue. This is known as evidential burden. See sections 131(1) (2) and 132 of the
Evidence Act 2011 respectively.
There are two types of burden of proof in a criminal trial and they are:
• the legal/general burden

• the evidential burden
The legal burden is the duty of a party to prove its case in accordance with the standard
prescribed by law. The legal burden is fixed by law. The evidential burden is the obligation of a
party to lead, introduce or provide evidence to prove a fact in issue. The evidential burden is on
the party who asserts; hence the rule is that he who asserts must prove.
The legal burden doesn’t shift, while the evidential burden could shift in certain circumstances.
The burden of proving that an accused person committed a crime is on the prosecution. S. 135(2)
Evidence Act 2011, Woolmington v DPP (1935) AC 462
This burden never shifts to the accused person except in the following cases:
• Burden of proving reasonable doubt after the prosecution has proved its case beyond
reasonable doubt -S 135(3) EA 2011
• Burden of proving defence of intoxication or insanity S 139(3)(c) EA 2011
• Burden of proving facts within the knowledge of the accused S 140 EA 2011
• Special plea of autrefois acquit or autrefois convict.
• Exemptions, exceptions, or qualifications contained in statutes. S. 141 E.A
• Burden imposed by statute.
• The burden of proof placed on the defendant may be discharged by evidence from the
prosecution or the defence S.139 (2) E.A
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STANDARD OF PROOF
Basically, there are two recognized standards of proof i.e., proof beyond reasonable doubt
s135(1) and proof on the preponderance of evidence or balance of probabilities s134. Whilst
the former standard generally applies to criminal cases, the latter generally applies to civil cases.
Nevertheless, instances exist (exceptions) where the applicable standard of proof in criminal
cases will be of the preponderance of evidence and proof beyond reasonable doubt is insisted
upon in civil cases.
The standard of proof of criminal defence or exceptions, etc. is on the balance probabilities. See
S 137 E.A which on standard of proof where burden of proving fact, etc. place on defendant by
law provides that “where in any criminal proceedings 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.”
A useful guideline can be found in dictum of Denning J. (as he then was) in Miller v. Minister
of Pensions (1942) 2 All ER. 372. “The degree is well settled. It need not reach certainty, but it
must carry a high degree of probability, proof beyond reasonable doubt does not mean proof
beyond shadow of doubt. The law will fail to protect the community if it admitted fanciful
possibilities to deflect the course of justice. If the evidence is so strong against a man as to have
only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is
possible but not in the least probable’, the case is proved beyond reasonable doubt, but nothing
short of that will suffice”.
BASIS FOR ADMISSIBILITY OF EVIDENCE IN CRIMINAL TRIALS
ADMISSIBILITY OF DOCUMENTARY EVIDENCE IN CRIMINAL TRIALS
Part 5 - Ss 83 -120 EA.
Doc which can establish fact is admissible S83(1) EA. Note conditions in (1)(a)&(b) - if maker
had personal knowledge, if maker called s witness etc.
Note proviso to S83(1)(b) when maker of statement need not to be called as a witness-
• dead,
• unfit by reason of body or mental condition,
• he is outside Nigeria and reasonably impracticable to secure attendance,
• cannot be found.
219
If court is satisfied that there will be undue delay or expense, can admit statement even if maker
is not called or copy or CTC if no original S83(2) E.A.
S83: Admissibility of documentary evidence as to facts in issue
(1) In a proceeding where direct oral evidence of a fact would be admissible, any statement made
by a person in a document which seems to establish that fact shall, on production of the original
document, be admissible as evidence of that fact if the following conditions are satisfied:
(a) if the maker of the statement either
(i) had personal knowledge of the matters dealt with by the statement, or
(ii) where the document in question is or forms part of a record purporting to be a

continuous record, made the statement (in so far as the matters dealt with by it are
not within his personal knowledge) in the performance of a duty to record
information supplied to him by a person who had, or might reasonably be
supposed to have, personal knowledge of those matters; and
(b) if the maker of the statement is called as a witness in the proceedings:
Provided that the condition that the maker of the statement shall be called as a witness need not
be satisfied if he is dead, or unfit by reason of his bodily or mental condition to attend as a
witness, or if he is outside Nigeria and it is not reasonably practicable to secure his attendance, or
if all reasonable efforts to find him have been made without success.
(2) In any proceeding, the court may at any stage of the proceeding, if having regard to all the
circumstances of the case it is satisfied that undue delay or expense would otherwise be caused.
order that such a statement as is mentioned in subsection (1) of this section shall be admissible as
evidence or may without any such order having been made, admit such a statement in evidence
notwithstanding that -
(a) the maker of the statement is available but is not called as a witness: and
(b) the original document is not produced, if in lieu of it there is produced a copy of the
original document or of the material part of it certified to be a true copy in such manner
as may be specified in the order or as the court may approve, as the case may be.
(3) Nothing in this section shall render admissible as evidence any statement made by a person
interested at a time when proceedings were pending or anticipated involving a dispute as to any
fact which the statement might tend to establish.
220
(4) For the purposes of this section, a statement in a document shall not be deemed to have been
made by a person unless the document or the material part of it was written, made or produced
by him with his own hand, or was signed or initialled by him or otherwise recognised by him in
writing as one for the accuracy of which he is responsible.
(5) For the purpose of deciding whether or not a statement is admissible as evidence by virtue of
this section, the court may draw any reasonable inference from the form or contents of the
document in which the statement is contained, or from any other circumstances, and may, in
deciding, whether or not a person is fit to attend as a witness, act on a certificate purporting to tie
the certificate of a registered medical practitioner.
ADMISSIBILITY OF COMPUTER-GENERATED EVIDENCE
S84: Admissibility of statements in document produced by computers:
(1) In any proceeding 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 the conditions in subsection (2) of this section are satisfied in relation to the
statement and computer in question.
(2) The conditions referred to in subsection (1) of this section are:
(a) that the document containing the statement was produced by the computer during a
period over which the computer was used regularly to store or process information for the
purposes of and activities regularly carried on over that period or not, whether for profit
or not, by anybody whether corporate or not or by any individual;
(b) that over that period there was regularly supplied to the computer in the ordinary
course of those activities information of the kind contained in the statement or of the
kind from which the information so contained is derived;
(c) that throughout the material part of that period the computer was operating properly
or, if not, that in any respect in which it was not operating properly or was out of
operation during that part of that period was not such as to affect the production of the
document or the accuracy of its contents: and
(d) that the information contained in the statement reproduces or is derived from
information supplied to the computer in the ordinary course of those activities.
221
(3) Where over a period the function of storing or processing information for the purposes of and
activities regularly carried on over that period as mentioned in subsection (2) (a) of this section
was regularly performed by computers, whether-
(a) by a combination of computers operating over that period:
(b) by different computers operating in succession over that period:
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period. in whatever
order, of one or more computers and one or more combinations of computers all the
computers used for that purpose during that period shall be treated for the purposes of
this section as constituting a single computer: and references in this section to a computer
shall be construed accordingly.
(4) In any proceeding where it is desired to give a statement in evidence by virtue of this section,
a certificate:
(a) identifying the document containing the statement and describing the manner in
which it was produced:
(b) giving such particulars of any device involved in the production of that document as
may be appropriate for the purpose of showing that the document was produced by a
computer:
(c) dealing in any of the matters to which the conditions mentioned in subsection (2)
above relate, and purporting to be signed by a person occupying a responsible position in
relation to the operation of the relevant device or the management of the relevant
activities as the case may be, shall be evidence of the matter stated in the certificate; and
for the purpose of this subsection it shall be sufficient for a matter to be stated to the best
of the knowledge and belief of the person stating it.
(5) For the purposes of this section:
(a) information shall be taken to be supplied to a computer if it is supplied to it in any

appropriate form and whether it is supplied directly or (with or without human
intervention) by means of any appropriate equipment;
(b) where, in the course of activities carried on by any individual or body, information is
supplied with a view to its being stored or processed for the purposes of those activities
222
by a computer operated otherwise than in the course of those activities, that information,
if duly supplied to that computer, shall be taken to be supplied to it in the course of those
activities:
(c) a document shall be taken to have been produced by a computer whether it was
produced by it directly or with or without human intervention by means of any
appropriate equipment.
S84(1) EA 2011 provides for the admissibility of computer-generated evidence in circumstances

where direct oral evidence is admissible. However, such document must satisfy the conditions
listed in S 84(2) EA.
In Imoro Kubour v Dickson (2012) LPELR 9817 SC, the court held that a party that seeks to
tender computer-generated evidence must not merely tender it from the bar and evidence must be
led to establish the conditions set out in S. 84(2) EA.
S84(4) EA provides that a certificate purporting to be signed by a person occupying a

responsible position in relation to the operation of the relevant device or the management of the
relevant activities
▪ identifying the document containing the statement and describing the manner in
which it was produced;
▪ giving such particulars of any device involved in the production of that document
as may be appropriate for the purpose of showing that the document was
produced by a computer; and
▪ dealing with any of the matters to which the conditions mentioned in subsection
(2) shall be deemed to be sufficient evidence of the conditions stipulated in
S.84(2) EA.
However, in the recent case of Seriake Henry Dickson v Sylva (2016) LPELR 41257 SC, the
Supreme Court held that a certificate is not the only means of proving the conditions stipulated in
S84(2) EA and that the court can also require oral evidence.
ADMISSIBILITY OF CONFESSIONAL STATEMENTS
Refer to the note on confession above
ADMISSIBILITY OF EXPERT EVIDENCE
▪ By S68EA the opinions of experts are admissible as an exception to the hearsay rule.
223
▪ An expert is defined in S68(2) EA as a person skilled in any field mentioned in S68(1)

EA viz foreign law, customary law or custom, science, art and identity of handwriting or
finger impressions.
▪ The evidence of an expert may be oral or documentary.
▪ Where it is oral, he is called as an expert witness and examined, cross-examined and re-
examined when necessary.
▪ Where it is intended to tender the report of an expert, he may be called as a witness and
the document tendered through him.
▪ The court would then examine the report and may utilise it in deciding the case one way
or the other.
▪ Must possess skill and qualification to be so referred Olayiwola v. FRN, Azu v. State,
Essien v. R.
▪ Rejection of expert evidence by court- Arise v. State, Aladu v. State.
▪ Expert evidence mandatory to prove some offences Ishola v. State; Stevenson v. Police.
ADMISSIBILITY OF POLICE REPORT
▪ The report of the Investigating Police Officer (IPO) is admissible as documentary

evidence by virtue of S83 EA.
▪ Usually, the report would be tendered through the IPO who would be called as a witness.
▪ However, the absence of the IPO would not render the document inadmissible if the court
is satisfied that undue delay or expense would otherwise be caused in trying to secure the
presence of the IPO and such report would be admitted by the court in evidence S83(2)
EA
▪ Note that statements made to the police during investigation are tendered through the
makers or the IPO while those made by suspects or accused persons/defendants must be
tendered through the IPO. See Azeez Okoro v State (1998) NWLR (Pt. 584) 181,
Okpara v FRN (1977) NSCC 166
HEARSAY EVIDENCE
Section 37, Hearsay Defined: Hearsay means a statement-

(a) oral or written made otherwise than by a witness in a proceeding; or
(b) contained or recorded in a book, document or any record whatever, proof of which is not
admissible under any provision of this Act, which is tendered in evidence for the purpose
of proving the truth of the matter stated in it.
Section 38, Hearsay rule: Hearsay evidence is not admissible except as provided in this Part or
by or under any other provision of this or any other Act.
224
Express or implied assertions of any person other than the witness who testified or assertions in
documents produced in court when no witness is testifying are hearsay. See Ijiofor v The State
(2001) SCNJ 230.
The Nigerian Supreme Court in Ojo v Gharoro (2006) per Niki Tobi JSC adopted the
definition of hearsay in Subramanian v Public Prosecutor… “hearsay evidence is all evidence
which does not derive its value solely from the credit given to the witness himself, but which
also rests also, in part, on the veracity and competence of some other personality relates a story
to another as proof of contents of a statement, such story is hearsay.”
▪ Hearsay means a statement (a) oral or written made otherwise than by a witness in a
proceeding; or (b) contained or recorded in a book, document or any record whatever,
proof of which is not admissible under any provision of this Act, which is tendered in
evidence for the purpose of proving the truth of the matter stated in it- S. 37 EA 2011
▪ Hearsay evidence is not admissible except as provided in the Evidence Act or any other
Act- S. 38 EA 2011
▪ In criminal trials, the most popular hearsay evidence is DYING DECLARATIONS S. 40
EA 2011, Okokor v State (1967) NMLR 189, Akpan v State (1967) NMLR 185.
EXCEPTIONS
1. RES GESTAE
Relevance of facts forming part of the same transaction
Section 4. Facts which, though not in issue, are so connected with a fact in issue as to form part
of the same transaction, are relevant, whether they occurred at the same time and place or at
different times and places.
Akpan v State (1994) Tobi JCA “the Latin expression, res gestae means “things done”. It is an
English doctrine or principle of the law of evidence which is exclusionary. The doctrine is
mainly concerned with the admissibility of statements made contemporaneously with the
occurrence of some act or event into which the court is inquiring.
Okoro v State (2007) the CA held that the piece of evidence tendered by PW1 and PW3 to the
effect that the deceased had, shortly before he died, stated that if he died, it was from gun shots
inflicted on him by Anthony Okoro (appellant) were made contemporaneously with the facts of
shooting the deceased, which formed part of the same transaction and were therefore relevant
facts and admissible under sec 7 of the repealed Act (section 4); hence it was proper and lawful
for the TJ to accept and rely on those pieces of evidence to convict the appellant.
225
Tobi v Nicholas (1988). It was held that the statement made to the police about twenty minutes
after the incident was not spontaneous enough to be admissible.
R v Andrews in the case the appellant who had come with other persons to rob the victim
stabbed the latter. Minutes later, the police arrived at the scene and the victim narrated to them
what had just happened to him, mentioning the appellant’s name. Soon after, the victim became
unconscious and died two months later. At the trial, the victim’s oral statement to the police was
objected on the ground that it was hearsay and did not qualify as res gestae. The HL held that
hearsay evidence made to a witness by a victim of an attack, describing how he had received his
injuries is admissible in evidence as part of res gestae at the trial of the attacker, if the statement
was made in conditions that were sufficiently spontaneous to and contemporaneous with the
event as to preclude the possibility of concoction or distortion…it has to be closely associated
with the event which excited the statement that the victim’s mind was still dominated by the
event.
In Ogba v State (1990) PW7 testified in chief that on 14/6/81, the deceased who was filled with
blood all over his body had suddenly entered into PW7 room. He then asked him what happened
and he said “I am dying, I am dying” when PW7 asked the deceased who hurt him, he said it was
the appellant. PW7 concluded that the “deceased was very weary and still saying he was dying”.
The CA held that this piece of evidence qualified as admissible under section 33 (10 repealed
now section 40 Evidence Act.
The exclamation of the victim by the bystander must be clearly and unequivocally established.
Hausa v State, the SC held relying on R v Bang Weyeku that when the court must rely on the
account given by the eye witness who had heard a dying declaration made by the deceased, strict
proof of such declaration will be required in the exact words used by the deceased. That if the
words used in the dying declarations are unclear, imprecise and ambiguous, such manifest
shortcoming would militate against their being admitted as part of the res gestae. Therefore, in
the instant case while PW2 testified that the deceased had shouted, “Hausa has shot me! Hausa
has shot me” PW3 testified that the deceased had shouted “Hausa it is you that shoot me…
Hausa you killed me, Hausa you killed me”. The SC held that the contradictions in these
accounts rendered the dying declaration inadmissible.
2. STATEMENTS BY PERSONS WHO CANNOT BE CALLED AS WITNESSES

Section 39, Statements, whether written or oral of facts in issue or relevant facts made by a
person-
(a) who is dead:
(b) who cannot be found:
(c) who has become incapable of giving evidence; or
226
(d) whose attendance cannot be procured without an amount of delay or expense which
under the circumstances of the case appears to the court unreasonable, are admissible
under section 40 to 50.
3. DYING DECLARATIONS
A specie of res gestae.
Section 40, Statements relating to cause of death:
(a) A statement made by a person as to the cause of his death, or as to any of the
circumstances of the events which resulted in his death in cases in which the cause of that
person's death comes into question is admissible where the person who made it believed
himself to be in danger of approaching death although he may have entertained at the
time of making it hopes of recovery.
A statement referred to in subsection (1) of this section shall be admissible whatever may be the
nature of the proceeding in which the cause of death comes into question.
The person making the declaration must be in expectation of death
Sunday Akpan v The State, Sunday has killed me held admissible.

R v Ogbuewu, I do not Know whether I am going to die was held to be inadmissible.
Peter v State the PW2 who heard a gunshot and the words of the deceased who was seen by the
PW2 rolling on the ground “Igiri has killed me, Igiri has killed me” rushed there and saw the
appellant with a gun still pointing at the deceased. The CA held that the above words were
admissible as dying declaration, because the deceased at the time of making the statement
believed himself to be in danger of approaching death.
The statement must be concise, unequivocal and complete Hausa v State, Akpan v State.
4. TESTIMONY IN PREVIOUS PROCEEDINGS;
Section 46, Admissibility of certain evidence for proving, in subsequent proceeding, the
truth of facts stated in it:
(1) Evidence given by a witness in a judicial proceeding, or before any person authorised by law
to take it, is admissible for the purpose of proving in a subsequent judicial proceeding, or in a
later stage of the same judicial proceeding the truth of the facts which it states, when the witness
cannot be called for any of the reasons specified in section 39, or is kept out of the way by the
adverse party:
Provided that
227
(a) the proceeding was between the same parties or their representatives in interest:
(b) the adverse party in the first proceeding had the right and opportunity to cross-examine;
and
(c) the questions in issue were substantially the same in the first as in the second proceeding.
(2) A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the
defendant within the meaning of this section.
5. DEPOSITIONS IN AFFIDAVITS
Section 115, Contents of affidavits:
(1) Every affidavit used in the court shall contain only a statement of facts and circumstances
to which the witness deposes, either of his own personal knowledge or from information
which he believes to be true.
(2) An affidavit shall not contain extraneous matter, by way of objection, or prayer, or legal
argument or conclusion.
(3) When a person deposes to his belief in any matter of fact, and his belief is derived from
any source other than his own personal knowledge, he shall set forth explicitly the facts
and circumstances forming the ground of his belief.
When such belief is derived from information received from another person, the name of his
informant shall be stated, and reasonable particulars shall be given respecting the informant, and
the time, place and circumstance of the information.
In Adebanjo v Brown (1990) SC held that hearsay in an affidavit is admissible provided the
source and grounds of information or belief are disclosed therein.
6. EVIDENCE OF TRADITION
One of the five ways of proving title to land.
Olaleye v Adejumo (2005) “traditional history or traditional evidence is evidence as to rights
alleged to have existed beyond the time of living memory proved by members of the community
or village who claim to have land as their own or who defend a claim to such land. It can also be
described as a somewhat ancient history which is replete with hearsay but which has been
elevated to the status of admissible evidence by the statutory provision in section 45 of the
Evidence Act”.
Elegushi v Oseni (2005) the SC held that proof of ownership of land by traditional history “is
usually based on hearsay evidence, that is, oral evidence often extending beyond human memory
and time of the witness narrating the history, which narrations are handed down from generation
to generation up to the present one.”
228
7. EVIDENCE OF CORPORATE TRANSACTIONS

Corporate bodies are legal personalities but are not human beings. In essence, it is only persons
working for the companies that can testify on its behalf.
Ishola v Societe Generale Bank Ltd (1997). The SC held that a company being a legal entity or
juristic person can only act through its agents or servants; and that any agent or servant of such
company can give evidence to establish any transaction entered into by the company. That where
the official giving the evidence is not the one that actually took part in the transaction on behalf
of the company, such evidence is nonetheless relevant and admissible...in appropriate cases, it
may affect the weight of such evidence.
Kate Enterprises Ltd v Daewoo (Nig) Ltd (1985) SC the LTJ dismissed the Pfs case simply
by treating evidence of PW1 as inadmissible when it is not. He considered it pertinent “to note
that PW1 the only witness called by the plf was not the person who had direct dealing with the
def…he deduced that there is no proof of receipts of goods by the def”. The TJ in effect
considered the entire evidence given by the witness inadmissible and rejected it. He was clearly
in error. His evidence is admissible but the question of its weight is a different matter. That DWI
had direct dealing with Mr Lee the GM of the pfs company does not necessarily mean he was the
only person who could testify on its behalf. Any other employee conversant with the facts of the
case was competent to testify. The evidence given by PW1 with documents received in evidence
were sufficient evidence to prove its case, per Coker JSC.
8. EVIDENCE OF A MEDICAL DOCTOR ABOUT THE CONDITION OF A PATIENT
WHO CANNOT TALK
Oladele v State (1993) the SC held that the evidence of a doctor, which is based on his special
field of medical scientific knowledge is expert evidence by virtue of section 57(2) of the
repealed Evidence Act. That in the instant case, when the senior consultant psychiatrist
expressed his opinion on the mental condition of the appellant, he did so as an expert. The SC
further held that if evidence of insanity of ancestors or blood relations is admissible in court, then
certainly the observation of a psychiatrist is also admissible as this has to be seen in the light of
the fact that a patient taken to hospital is in some cases unable to talk due to the nature of his
illness or inability to explain why he is there; hence relatives or friends who took him to the
hospital will explain to the doctor who by the nature of his professional training will know the
type of illness and what to prescribe. Therefore, such evidence of the psychiatrist who treated
him will not amount to hearsay evidence, as it is relevant and therefore admissible even though
based on reports made by others.
SUMMARY OF THE EXCEPTIONS:
1. Res gestae S4, Akpan v State, Okoro v State, Tobi v Nicholas, Ogba v State, Ogba v
State, R v Bang Weyeku
229
2. Statements by persons who cannot be called as witnesses S39

3. Dying Declarations S40 EA, Sunday Akpan v The State, R v Ogbuewu, Peter v State,
Hausa v State, Akpan v State
4. Testimony in previous proceedings S46
5. Depositions in Affidavits S115, Adebanjo v Brown
6. Evidence of Tradition Olaleye v Adejumo, Elegushi v Oseni
7. Evidence of Corporate Transactions Ishola v Societe Generale Bank Ltd, Kate
Enterprises Ltd v Daewoo (Nig) Ltd
8. Evidence of a medical doctor about the condition of a patient who cannot talk Oladele v
State
9. Treatises published by experts Olalomi Ind. Ltd v.NDIC
10. Reports of Police investigators;
11. Admission Ss 20-27 EA
12. Confession Ss 28-32 EA
REFRESHING MEMORY
▪ S239 EA makes provision for witnesses to refresh his memory from documents prepared
by that witness or by any other person and read by the witness either at the time of the
transaction or soon after the transaction took place.
▪ An expert witness may also refresh his memory by reference to professional treatises.
▪ A witness who seeks to refresh his memory must seek the leave of the court before doing
so.
▪ Simply to remember whether the writing is by himself S239(1) E.A or by another person
S239 (2) E.A.
▪ Writing whether by the witness himself or another person must have been made at time
of transaction or so soon afterwards S239(1)&(2) E.A.
▪ Expert can refresh his memory by reference to professional treatises S239 (3) E.A.
▪ The adverse party has the right to request to be shown such writing and he must be
obliged and he can also cross-examine the witness on the writing if he chose S241 E.A.
HOSTILE WITNESS
▪ A hostile witness is one who:

 gives evidence against the party calling him; and
 such evidence is false
▪ The court, upon satisfaction that a particular witness is hostile, declares such witness
hostile upon application by the party or his counsel.
230
▪ A witness is hostile, if in the opinion of the court, he bears hostile animus to the party
calling him and so does not give his evidence fairly with a desire to telling the truth to the
court- S. O. Esan v State (1976) 11 SC 93, Babatunde v State (1969) NMLR 227.
▪ Upon application by party and court satisfying itself, it can declare a witness hostile.
S230 E.A.- He may then be cross examined. Iluonu v. Chiekwu, Gaji v. State.
▪ The consequences of declaring a witness hostile are:
 The court will attach less weight to his testimony or disregard the testimony he
has given
 The witness can be cross-examined by the party calling him
 He can be asked leading questions
 He can be contradicted using his previous statements which are inconsistent with
his present testimony
▪ The general rule is that a party who calls a witness is not allowed to impeach the credit of
that witness- S.230 EA 2011, Babatunde v State (1969) NMLR 227.
▪ This is subject to the exceptions provided in S. 230-233 EA 2011 which allows a party to
impeach the credit of his own witness.
 Where he makes contradictory testimonies S230
 Proof of contradictory statement of hostile witness S231
 Cross-examination as to previous statements in writing S232
 Impeaching credit witness (evidence of person testifying to unworthy character of
the witness, proof of bribe proof of former inconsistent statements) S233
COMPETENCE AND COMPELLABILITY OF WITNESSES
▪ A competent witness is one who can lawfully be called to give evidence.

▪ On the other hand, a compellable witness is a person who can lawfully be compelled by
the court to give evidence.
▪ While the basis of competence is largely the possession of understanding, intelligence,
fitness, mental or physical; compellability has to do more with position or status occupied
by a person at a given time.
▪ As a general rule, every person is a competent witness- S.175(1) EA 2011
▪ The competence of certain classes of witnesses would now be considered:
Children
▪ The law is settled that a child is a person who has not attained the age of 14 years S209
EA
It has been well couched by Nnaemeka Agu JSC in Mbele v The State (relying on his previous
pronouncement in Okon v The State: “the first duty is to determine whether the child is
231
sufficiently intelligent to understand the questions he may be asked… and to be able to answer
rationally… this is tested by the court putting to him preliminary questions which may have
nothing to do with the matter before the court… then proceed to the next test as to whether in the
opinion of the court, the child is able to understand the nature and implications of an oath”… if
the child passes none of the test, he is not competent to testify. If he passes the first but fails the
second, he can give evidence though not on oath and the evidence would need corroboration. If,
however the child passes both tests, he can give evidence on oath and this evidence on oath can
be treated as though it was that of a competent adult. Muktar J.C.A in Ogunsi v State also gave
a similar dictum.
▪ The court is expected to conduct two tests on a child to determine the competence of that
child to give evidence viz:
▪ Whether the child has sufficient intelligence to give evidence (intelligence test)
▪ Whether the child understands the duty of speaking the truth (oath test)
▪ The tests must be administered in a progressive manner.
▪ If the child passes the first test but fails the second, he/she shall not be sworn.
▪ If the child fails the first test, the second shall not be administered and the child will not
be competent to give evidence.
▪ If the child passes the two tests, he/she would be sworn and the evidence taken on oath-
Dagayya v State (2006) AFWLR (308) 1212
Persons of extreme old age
▪ The Evidence Act is silent on who an old person is.

▪ The general view is that it is the judge that will determine who an old person is.
▪ If the court is satisfied that he /she is a person of extreme old age, the two tests applicable
in respect of a child are also applicable.
A person of unsound mind
▪ A person of unsound mind is a competent witness except he is prevented by his mental

infirmity from understanding the questions put to him or from giving rational answers to
them- S.175(2) EA
▪ R v Dunning, R v Hill and Pittie v Walton, evidence can be upheld during lucid
intervals or if drunken when sober.
Dumb witness
▪ A dumb person is also a competent witness.
232
▪ He may give his evidence in any other manner in which he can make it intelligible such
as by writing or signs, but such writing must be done and the signs made in open court.
S.176(1) EA
▪ Any evidence so given by the dumb person though in writing or signs shall be deemed to
be oral evidence- S.176(2) EA
Defendant/Co-defendant
▪ A defendant is not a competent witness for the prosecution particularly where he is

charged alone.
▪ Where he is charged with other persons, he is competent to give evidence for the
prosecution against his co-accused, where he has pleaded guilty and has been convicted
and sentenced. - Umole & Ors v IGP (1957) NRNLR 8
▪ An accused person is however a competent witness for the defence at all times S.180 EA
▪ Umole v Police 1957 NRNLR at 8. In the case the accused pleaded guilty and was
convicted but before he was sentenced, he’s allowed to give evidence against the co-
accused and the court convicted the co-accused. The court held that he could give such
evidence. Note that there’s difference between conviction and sentencing, since the
accused hasn’t been sentenced but only convicted. Note that, where an order for separate
trial has been ordered, an accused may evidence give for the prosecution against the co-
accused in another trial.
Spouses of a valid marriage
▪ The general rule is that a spouse is not competent to give evidence against the other
spouse Idiong and Anor v The King 1959 13 WACA p 30, Lamu v The State 1967
NMLR 228, except that other spouse gives consent or that other spouse has been charged
under any of the offences mentioned in section 182(1) EA which contain the exceptions.
▪ S179 EA provides generally that the spouses of defendants are competent witnesses.
▪ There are however instances where the spouse of the defendant is both competent and
compellable. These are:
▪ Where the offence for which the spouse is standing trial relates to any of those
mentioned in S.182(1) EA (sexual offences)
▪ Where the offence is one against the property of the wife or husband of the
accused, subject to S.36 Criminal Code.
▪ Where the husband or wife is charged with the offence of inflicting violence on
his wife or her husband
▪ In any other case, the husband or wife is only a competent and compellable witness only
upon the application of the person charged- S.182(2) EA 2011
233
▪ The failure of the wife or husband of any person charged with an offence to give
evidence shall not be made the subject of any comment by the prosecution S182(4) EA
▪ Note privilege of marital communications in S182(3), 187 EA 2011
Banker
▪ A Banker is not competent to give evidence except in a case in which the bank is a party.
Also, a bank is not obliged to tender the banker’s book or the account of the client except
on the order of court see section 177 EA. A banker is not at liberty to tender information
on the client except the court directs. Generally, the banker can’t appear as a witness
against the client, or tender account records.
▪ This is based on the general common law rule on fiduciary duty of the banker to the
client. But several other Acts have created exceptions.
▪ This is why the EFCC Act provides for interim forfeiture of assets of an accused or
permanent order of forfeiture. Under the EFCC Act, it’s important for the EFCC to act
fast to freeze the account to ensure that the funds aren’t moved. The EFCC Act section
34 provides that notwithstanding the provisions of Section 177 of EA, the EFCC can
approach the court for an interim order on the account to be frozen. Also see Money
Laundering Act 2012 Section 13(4), Terrorism Prevention Amendment Act 2013
Section 14.
Certain persons are competent witnesses but are not compellable. They include:
▪ The President, Vice-President, Governors and Deputy Governors -S308

CFRN, Fawehinmi v IGP (2002) FWLR (108) 1355, Tinubu v IMB Securities
▪ Diplomats-S.1(1) Diplomatic Immunities and Privileges Act, Zabusky v
Israeli Aircraft Industries (2007) AFWLR (352) 1759, CBN v Trendtex
▪ Judges- S. 188 EA 2011. Are NOT competent or compellable to testify
concerning a matter he had either previously dealt with or on which he is
currently presiding-Elabanjo v Tijani. This rule is traceable to the English
common law cases of R v Harvey, R v Gazard, R v Morgan. However, if they
decided to testify, he/she must thereafter cease to preside over the matter or take
part in the proceeding-Warrant v Warren.
▪ Legal practitioners- S.192 EA 2011
CORROBORATION OF EVIDENCE
▪ This is the confirmation of witness’ evidence by independent evidence.

▪ As a general rule, no particular number of witnesses is required to prove the case against
an accused- S. 200 Evidence Act
234
▪ Corroboration is an exception to this general rule.

▪ To satisfy the requirement of corroboration, the evidence must show two things:
 that the offence was committed; and
 that the accused is implicated in the commission. See Okpanefe v State
▪ Corroborative evidence may be oral, documentary or real.
▪ Corroboration is required in the following instances:
 Where it is required as a matter of law
 Where it is required as a matter of practice
▪ Corroboration as a matter of law
▪ The law requires corroborative evidence in the following instances:
1. Breach of promise to marry S197 EA, Bessela v Stern, Weidmann v Walpole, in

the former, the sister heard the promise and C it and he even gave her money
serving as another piece of evidence.
2. Treason and treasonable felonies S.201 EA, Omisade v R (1964) 1ANLR 233
3. Evidence on a charge of perjury S 202 EA, S.119 Criminal Code, R v Ogunnubi
(1932) 11NLR 91
4. Exceeding speed limit S.203 EA, Agbonavbare v Ogbebor
5. Sedition S.204 EA 2011
6. Unsworn evidence of a child S.209(3) EA 2011, Ogunsi v State
7. Evidence of an accomplice S.198 EA 2011
▪ Note that where corroboration is required as a matter of law, any conviction based on
uncorroborated evidence will be quashed on appeal- Oyediran v Republic (1966) 4
N.S.C.C. 252, (1967) NMLR 122
▪ Corroborative evidence is required by the courts as a matter of practice in the
following cases:
1. Evidence of an Accomplice section 198

2. Evidence of co-accused State v Idahosa (1965) NMLR 85
3. Sworn evidence of a child Akpan v state (1992) 6 NWLR (Pt. 248) 439
4. Evidence of agent provocateur Mbenu v State (1988) 3NWLR (Pt. 84) 615 at
626
5. Tainted witness Idahosa v R (1965) NMLR 86
6. Sexual offences Iko v state (2001) 14NWLR (Pt732) 221
7. Retracted confessional statements Onochie v Republic (1966) NMLR 307
▪ Note that where corroboration is merely required as a matter of practice, any conviction
obtained would not be quashed except miscarriage of justice is proved.
235
CASE THEORY AND TRIAL PLAN
CASE THEORY
▪ A case theory is the vehicle through which the facts of a case are conveyed as a
structured and credible whole Gravett & Loggerenberg
▪ The case theory or theory of the case may therefore be said to be logical or coherent
historical account of the case related to the legal rules, principle and practice of the aspect
of the law in question Obi Okoye.
▪ An adequate “theory of the case” might be described as a short, persuasive summary of
the facts, explaining exactly “what happened” from the perspective of the lawyer’s client.
▪ Case theory is an advocate’s strategy and comprises the line of arguments from his
opening speech through closing speech.
▪ A logical theory is based on a solid evidentiary foundation that, along with reasonable
inference, leads naturally to the intended result.
▪ The case theory must possess the following qualities:
1. It must be persuasive and simple;

2. It must be logical and comprehensive;
3. It must be credible or believable or if disputable, be consistent with the evidence or
common sense;
4. Based on undisputed facts or if disputed, be consistent with the evidence or common
sense;
5. It must lead to the right conclusion, that is, a conclusion that is consistent with
provable facts.
▪ In forming the case theory, regard is had to the following:

 The charge against the accused
 The ingredients having regard to the statute creating the offence
 The facts available to prove the offence
 The principles guiding the offence
 The likely defences available to the accused
TRIAL PLAN
▪ Trial plan is an action plan prepared by a counsel stating how he intends to prove his case
or establish his defence.
▪ The trial plan should contain the following in a tabular form:
 Charge
 Law
236
 Evidence (prosecution)
 Evidence (defence)
 Penalty
 Prayer (prosecution)
 Prayer (defence)
 Remarks
SAMPLE TRIAL PLAN
Charge Law Prosecution Defence Penalty Prosecution Defence Remarks

Evidence Evidence Prayer Prayer
Stealing SS. 1.Oral 1. 3 years Asking the Asking 1. Prosecution
383, testimony of Evidence jail court to the court to rely heavily
390 Mr Obeise of alibi term convict as to on the report
CC charged discharge of the I.D.
2.Eye and parade
witness acquit
account of a 2. Defence to
passenger in argue that alibi
the bus of the accused
not
3.The report investigated by
of ID parade the
prosecution
SUBPOENA AND WITNESS SUMMONS
SUBPOENA
▪ A subpoena is a writ requiring the person to whom it is directed to be present at a

specified place and time and for a specific purpose under a penalty under the law. S.241
ACJA, S.188 ACJL Lagos, 247 ACJL Kano.
▪ A party may apply to a judge for the issuance of a subpoena without disclosing the nature
of evidence the witness may give COP v. Jane & Anor NLR (XIX) 66.
▪ There are basically four types of subpoenas:
 Subpoena ad testificandum- Form 29 FCT HC CPR 2018, Form 27 Lagos

HC CPR 2019, It compels a witness to attend court and give oral evidence
 Habeas corpus ad testificandum- Form 30 FCT HC CPR 2018, Form 28
Lagos HC CPR 2019. It compels the prison authority to produce an inmate to
testify.
237
 Subpoena duces tecum-Form 31 FCT HC CPR 2018, Form 29 Lagos HC

CPR 2019. It compels a witness to tender a document. Note that a witness
brought to court on a subpoena duces tecum is not liable to give evidence on oath
or be cross-examined S.218, 219 EA 2011, Olaniyan v Oyewole (2008)
 Subpoena duces tecum et ad testificandum- compels a witness to give oral
evidence and tender documents.
WITNESS SUMMONS
▪ This is an order of court issued to a person whose presence is required for purposes of
testifying in a matter before the court.
▪ It is served on the witness the same way an originating process of court is served-
personal service or substituted means.
▪ See S.241 ACJA, S.177 ACJL
OPENING STATEMENT/ADDRESS
▪ Opening address is a summary of the evidence the prosecution intends to adduce before
the trial court.
▪ See S. 300 ACJA, S. 268 ACJL
▪ This will include the following:
 The charge against the accused
 The evidence available to prove the charge
 Witnesses to be called and availability of such witnesses
 Approximate time to complete the prosecution’s case
QUESTIONS
Femi Ajimobi was arrested by the police at Obiagu shopping mall in Enugu for the offence of
House breaking and Rape committed on the 4th june, 2020. Mrs Fatima James lodged a report at
the police station that her neighbour, Femi Ajimobi broke into her apartment and raped her on
the 3rd of June, 2020.
In his statement to the police, Femi Ajimobi denied the allegation and was subsequently charged
to court.
At his trial, the prosecution called the prosecutrix, Mrs Fatima James as PWI and she gave a
vivid account of how she was assaulted, beaten and raped by the defendant. The prosecution
sought to tender the torn clothes and pant of the victim, but the defence objected on the ground
that it was coming from improper custody. The trial judge sustained the objection.
238
The prosecution also called Dr. Moses Evang, an expert gynaecologist to give evidence and
tender the medical report of the examination conducted on the prosecutrix. The defence counsel
objected on the ground that the Medical Report was not signed. The court sustained the objection
and marked the document “rejected”.
At the close of the prosecution’s case, the defence called Chidi Amaka, a 12 year old boy to
testify for the defence. The prosecution objected vehemently on the ground that he is not a
competent witness.
The trial judge sustained the objection and subsequently adjourned the matter to 14th July, 2020
to enable the defence call another witness.
1. (a) Was the trial judge right in sustaining the objection by refusing to admit the torn clothes
and pant in evidence? Give reasons for your answer.
(b) On what basis would the court accept the evidence of Dr. Moses Evang in law?
(c) Was the trial judge right in rejecting the evidence? Give reasons for your answers.
2. (a) Comment on the Objection of the prosecution and the ruling of the court on the
competence of Chidi Amaka to give evidence in this case.
(b) Under what circumstance would the evidence of Chidi Amaka be admissible in this case?
3. (a) Assuming Femi Ajimobi intends to call his elder brother who is the governor of koko state
as a witness for the defence, comment on the competence and compellability of the governor to
testify in this case.
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WEEK 15 – TRIAL 3 (EXAMINATION OF WITNESSES)
OUTCOMES
1. Explain what examination in chief, cross examination and re-examination mean and the
purpose they serve in criminal proceedings
2. Examine a witness in chief, cross examine a witness and re- examine a witness.
3. Identify questions that are objectionable in examination in chief.
4. Demonstrate admissibility of documentary evidence in criminal trials – confessional
statements, expert evidence, police report and computer-generated evidence.
5. Demonstrate admissibility of hearsay evidence
6. Demonstrate the procedure for refreshing the memory of a witness and dealing with a
hostile witness.
7. Identify the limits of the judge’s power to put questions to a witness.
CONTENTS
1. What is examination of witness?

2. What purposes do examinations serve in a trial?
3. What questions are allowed or not allowed in examination in chief; cross-examination
and re-examination.
4. What are the powers of a judge or magistrate to put questions to witnesses?

2. Students are grouped to discuss the meaning of examination in chief and the role it plays
in a trial – 10 minutes.
3. Students are grouped to discuss the kind of questions that are not allowed in examination
in chief and sample presentations are made – 20 minutes
4. Students are grouped to demonstrate examination skills highlighting admissibility of
documentary evidence such as confessional statements, expert evidence and police report
using the ******** scenario - 30 minutes
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5. Students are grouped to demonstrate examination skills highlighting procedure for

admissibility of hearsay evidence, refreshing memory and treatment of a hostile witness
using *********** scenario -30 minutes.
15 MINUTES BREAK
6. Students are grouped to discuss the meaning of cross examination and re-examination
and the purposes they serve in proceedings. – 20 minutes
7. Students are grouped to demonstrate cross-examination skills using the ******scenario -
40 minutes
8. Students are grouped to demonstrate re-examination skills using the ******scenario - 20
minutes
9. Students are grouped to discuss the powers of a judge to put questions to the witness from
the bench – 20 minutes.
INTRODUCTION
Witnesses are important to the success of the cases of both the prosecution and the defence.
S36(6)(d) CFRN allows the prosecution and the defence to call witnesses to testify on their
behalf and to cross-examine the witnesses called by the opposition.
This is because we practise adversarial system of litigation where parties alone take issues with
one another and they should call witnesses to establish their own side of any given issue-
Onuoha v State (1989) 2 NWLR (101) 23. See generally SS 196 ACJL, 255 ACJA, 214 EA.
S255 ACJA simply provides that “subject to the provisions of any other law, the examination of
witnesses shall be in accordance with the provisions of the Evidence Act.” Similar provisions in
S 196 ACJL Lagos and 257 ACJL Kano.
There are three categories of examination of witnesses in criminal trials to wit; Examination-in-
chief, Cross-examination and re-examination- S 214 EA.
S214: Examination-in-chief, Cross-examination and Re-examination
(1) The examination of a witness by the party who calls him shall he called examination-
in-chief
(2) The examination of a witness by a party other than the party who calls him shall be
called cross-examination.
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(3) Where a witness has been cross-examined and is then examined by the party who
called him, such examination shall be called re-examination.
215: Order and Direction of Examination
(1) Witnesses shall be first examined-in-chief then, if' any other party so desires, cross-
examined, then, if the party calling him so desires, re-examined.
(2) The examination and cross-examination must relate to relevant facts, but the cross-
examination need not be confined to the facts to which the witness testified on his
examination- in-chief.
(3) The re-examination shall be directed to the explanation of matters referred to in cross-
examination and if a new matter is, by permission of the court, introduced in re-
examination, the adverse party may further cross-examine upon that matter.
Examination-in-chief
This is the examination of a witness by the party who calls him S214(1) EA. Its purpose is to
elicit from the witness facts and evidence that are relevant and favourable to the case or any part
of the case of the party on whose behalf he is testifying. Leading questions and questions tending
to discredit witnesses are not allowed, generally, in examination-in-chief and re-examination.
Purpose is to elicit admissible, material and favourable evidence.
It takes the form of responses to questions which eventually provide a story line.
Usually commenced by introductory questions before main questions. Counsel should guide
witness to tell court only story that is relevant, in an orderly, sequential and easy to follow
manner.
Pre-trial interview is necessary to prepare the witness.
Leading questions are generally not allowed during examination-in-chief. SS221(1) & (2) E.A.
Leading question is defined under S221 as questions suggesting the answer which the person
putting it wishes or expects to receive.
Subsection (2) expressly provides that leading questions shall not be asked in examination-in-
chief, or in re-examination, except with the permission of the court.
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Exceptions are; Subsection (3), Introductory matters; Undisputed facts; Matters, which in the
opinion of the court have already been sufficiently proved before the court S 21(3).
Open and closed questions are to be used in conducting examination-in-chief. Open questions
should be preferred to closed questions because they allow the witnesses tell their stories
uninterrupted. ‘What, where, why, how, when, who’ are the interrogative pronouns and adverbs
used in open questions. Open ended questions start with “who”, “why”, “what”, “where”,
“when”, “how”, “describe”, “explain” etc. Should be adopted to avoid leading questions.
You can also start examination-in-chief with words like, ‘describe, explain, etc.
Closed questions are asked to elicit more specific facts and to prevent the witness from
derailing; but they could result to leading questions if not carefully managed. Closed questions
begin with verbs and interrogative adverbs such as: has, have, had, do, did, are, were.
Cross-examination
This is the examination of a witness by a party other than the party who calls him. See S214 (2)
EA. Before embarking on cross-examination of witness, counsel should ask himself if it is
desirable, that is, if it helps his case in any way. This is because some cross-examination could
help the opponent’s case.
Note, however, that if he fails to cross-examine a witness, the evidence of such a witness is taken
as admitted. See Awopejo v State (2000) NWLR (Pt.659) 1 at 20, Garba v The Queen (1959)
NSCC 133 at 135.
In a joint criminal trial, each of the accused persons is entitled to cross-examine any witness
called by the prosecution if he wishes S216 EA.
If an accused person calls a witness, his co-accused persons each, has the right to cross-examine
the witness before the prosecution does S217 EA.
Not limited to facts elicited in exam-in-chief S215(2) E.A. Cross-examination not mandatory,
but can be crucial.
Person summoned merely to produce documents and not to testify cannot be cross-examined.
See Ss 218, 219 E.A.
Leading questions are allowed in cross-examination provided they are relevant and go to the
credibility of the witness- S221(4) EA.
243
Exceptions
Even though counsel is allowed to ask many questions during the cross-examination of a
witness, he is not allowed to ask:
• Questions relating to credit but are not relevant or too remote to the proceedings may be
disallowed by the court. The court is under an obligation to warn the witness that he is
not obliged to answer. S224 E.A.
• indecent and scandalous questions unless they relate to the facts in issue- S227 EA;
• questions intended to insult or annoy the witness or which is needlessly offensive- S228
EA;
• Questions about other sexual experiences or pleasure aside with any person other than the
defendant in cases of sexual offences S234 EA.
• Under S226 EA, the judge is empowered to report a counsel who ask baseless or
questions adjudged to be without reasonable cause to the Attorney-General of the
federation or any other authority to which the legal practitioner is subject.
Ten Commandments for Cross Examination
1. Not good to cross examine without a definite purpose

2. Cross examine only when it is necessary to do so
3. Do not cross examine by merely going over the evidence in chief, hoping that the witness
will miss out or mix up something
4. Avoid suggesting or putting it to a witness that he is lying or mistaken unless you have
properly laid foundation for that.
5. Do not cross examine on trivial issues
6. Do not attempt to discredit obviously truthful evidence
7. Abreast self with rules of evidence, obligations under the law and consequence of non-
compliance.
8. Do not cross examine if you do not fore see any significant or helpful result.
9. Failure to challenge adverse and material evidence can be fatal
10. Avoid aimless cross-examination
Re-examination
This is the examination of a witness by the party who calls and examines him in chief. Leading
questions are not allowed in re-examination except court permits them. Re-examination is done
after cross-examination to clear any ambiguity arising from answers given to a question(s) in
cross-examination.
244
It does not admit extension, re-opening or repetition of examination-in-chief. New matters can
only be introduced with the leave of the court. When this happens, the party in opposition shall
be allowed to cross-examine the witness on the newly introduced matters only S215(3) EA.
Purposes of examinations in criminal trials
Examination-in-chief:
• The main purpose of examination-in-chief is to elicit from the witness some relevant
pieces of evidence favourable to the case of the party who calls him.
Cross-examination:
• To get favourable evidence for the case of the party cross-examining the witness
• To contradict the witness and render his testimony unreliable and unbelievable by the
court
• To destroy the opponent’s case.
• Under cross examination the following must be asked: To test his accuracy, veracity or
credibility, discover who he is and what his position in life and shake his credit by
injuring his character.
Re-examination:
 The main purpose of re-examination is to clear any ambiguity arising from the cross-
examination of the witness by the opposing counsel. Ambiguity is said to have arisen if
any statement made by the witness in answer to any question put to him by the party
cross-examining him is capable of having two or more meanings.
Statements in public documents, SS102,104,105 EA
When secondary evidence of a public document, i.e., CTC, is given in a criminal trial as the
evidence of the content of the public document, it qualifies as admissible hearsay evidence and
as such an exception to the general rule.
The CTC of public documents must be made by authorised public agents in the course of their
official duties, that the facts recorded in the documents are of public interest and that it is
difficult or impossible to prove facts of a public nature by means of actual witnesses examined
on oaths- S90(1) (c) EA.
However, see Bello Magaji v Nigerian Army (2008) 2-3 SC (Pt II) 146, where Ogbuagu, JSC
opined that a photocopy of CTC of a public document needs no further certification.
245
Circumstantial evidence
This is the means of proof of the existence of facts by inference made from proved facts. It is
resorted to when there is no direct evidence to prove the existence of the facts.
The circumstantial evidence must be cogent, unequivocal, overwhelming and must point directly
and irresistibly to one conclusion: that the accused person and no other person committed the
alleged offence. See Shehu v State (2010) 2-3 SC (Pt. 1) 158 at 189, Jua v State (2010) 1-2 SC
(Pt. 1) 96 at 134.
Suspicion, however, strong cannot ground conviction – Abieke v State (1975) NSCC 402 at
408.
Powers of judges or magistrates to put questions to witnesses
Judges or magistrates have powers to put questions to witnesses testifying before them in order
to clear ambiguities or clarify points which have been left obscure in the evidence adduced by
the witnesses. This is done in respect of relevant facts, duly proved. See S246 (1), 2), (3) EA
CF SS 224, 225, 226 EA.
This does not mean that judges or magistrates have powers to descend into the arena to make
case for the prosecution or the defence, or to ask questions which the law forbids counsel to put
to the witnesses. This will amount to undue interference, which the law forbids. See Okoduwa
& Ors v State (1988) 1 NSCC 718, Uso v State (1972) 1 SC 37.
The number of questions asked is immaterial. What matters is if the question(s) is relevant to the
live issues before the court. See Onuoha v State supra, Magaji v State [2008] 2-3 SC (Pt.
II)146.
Power of Assessors to put questions
S247 EA provides that “in cases tried with assessors, the assessors may put questions to the
witnesses, through or by the judge, which the judge himself may put and which he considers
proper.
Power of courts to call or recall witnesses
A Magistrate or Judge has power to call a fresh witness or recall a witness who has earlier
testified in a case, at any stage before judgment, for questioning if his evidence will help in the
just determination of the case. The purpose is not to build the case of any party. Such witnesses
are not the witnesses of either of the parties and the parties can only examine them with the leave
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of the court. SS 197 ACJL Lagos, 256 ACJA; Okorie v Police (1966) LLR 134, Opeyemi v
State (1985) 2 NWLR (Pt. 5) 101, R v Aderogba (1960) FSC 212, Onuoha v State (1989) 2
NWLR (Pt.101) 23.
QUESTIONS
Tonye Okeke, Tamara Abubakar, and Timi Bolaji were arrested by the men of National Drugs
Law Enforcement Agency (NDLEA) at Igbogene Yenagoa Bayelsa State on 5 March 2020 for
possessing substances suspected to be Indian Hemp and cocaine. They were later arraigned in the
Federal High Court sitting at Yenagoa. The prosecution asked Mr Yetunde Wori, a government
chemist who conducted the drug analysis on the substances, questions on the report he wrote.
Due to the complex nature of the report, Yetunde had to read the report to enable him answer the
questions put to him. Thereafter, Biogbolo Nimi Esq who represented Tonye Okeke asked
Yetunde questions on the report on behalf of all the defendants even though they were separately
represented by counsel.
After the three defence counsel were done with questioning their clients and the witnesses called
by them, the trial judge asked the defendants to tell him the difference between coke and cocaine,
which all of them mentioned in their evidence before the court. The defence counsel objected to
the question on the ground that the judge was descending into the arena of conflict between the
parties. The judge overruled their objection, and asked the defendants to answer the question.
Below is the excerpt of what took place between the Prosecution and Yetunde Wori:
Prosecution: You are Yetunde Wori, a government chemist with the NDLEA?
Yetunde Wori: Yes, my lord.
Prosecution: You obtained a B.Sc in Industrial Chemistry from the University of Ibadan in
1995; went to the University of London in 1998 for your M.Sc in Industrial Chemistry and
Professional Certificate in Drug Analysis, and you have been with the NDLEA since 1999?
Yetunde Wori: You are very correct, my lord. You know me so well.
Prosecution: Please, tell this honourable court the role you played in this case.
Yetunde Wori: Substances suspected to be Indian Hemp and cocaine were recovered from the
defendants on 5 March 2020. After preliminary tests, NDLEA officers put the substances in the
Substance Packing Form, and brought them to me on 12 March 2020 for investigation and
analysis. I carried out the investigation in the NDLEA Laboratory in Lagos State, and I analysed
247
the substances. Based on that, I wrote this complex report, from where I am giving evidence in
this court.
Prosecution: So, your analysis shows that the substances are Indian Hemp and cocaine?
Defence Counsel: Objection, my lord. This question is very leading.
Court: Objection overruled. Witness may answer the question.
Yetunde Wori: You are very correct, my lord. My analysis shows that the substances recovered
from the defendants are Indian Hemp and cocaine.
Prosecution: My lord, that is all for the witnesses.
A. i. State the types of examination the prosecution and Biogbolo Nimi Esq did with Yetunde
Wori, and their uses in criminal trials.
ii. Mention questions that are not allowed in (i) above.
B. Comment on the propriety or otherwise of Biogbolo Nimi Esq asking Yetunde Wori questions
on behalf of the defendants even though they were separately represented by counsel.
C. Comment on the propriety or otherwise of the judge asking the defendants to tell him the
difference between coke and cocaine; the objection of the defence counsel to the question, and
the ruling of the court on the objection. Would your answer be different if Biogbolo Nimi Esq
had asked Tonye Okeke the same question by way of reexamination? Give reason(s) for your
answer.
D. Was Yetunde Wori right to have read the drug analysis report in order to give evidence on it?
As his counsel, state the procedure he should have followed.
E. Identify the types of questions asked in 1, 3, and 5 above, and state whether or not they are
allowed in the circumstance of this case.
F. Discuss the objection of the defence counsel to question 7, and the ruling of the trial judge on
it.
G. Assuming Yetunde Wori has turned against the prosecution in the court, advise the
prosecution on what he should do with Yetunde to prove his case.
248
H. State in six paragraphs, how you would lead Yetunde Wori to tender the drug analysis report
in evidence.
249
WEEK 16 – TRIAL 4 (PRESENTATION OF THE CASE FOR THE DEFENCE)
OUTCOMES
1. Explain the options available to the accused at the close of the case of the prosecution
2. Make a submission of no case to answer.
3. Accused resting his case on that of the prosecution
4. Make an opening address for the defence.
5. Explain the Ex improviso rule – explain when prosecution may be allowed to call
evidence in rebuttal of evidence of the defence.
6. Explain the purpose and procedure for a visit to the locus in quo
7. Make concluding /final addresses for the parties.
CONTENTS
1. What are the options available to an accused person at the close of the case for the
prosecution?
2. What is no case submission and when may it be made?
3. When a no case submission is overruled, what other options are available to the accused?
4. The accused resting his case on that of the prosecution
5. Procedure for visit to the locus in quo.
6. Application of the ex improviso rule
7. Final addresses for the parties.

2. Students are grouped to discuss the options available to an accused person at the close of
the prosecution’s case - 20 minutes.
3. Students are grouped to discuss the meaning and effect of no case submission and
presentations of no case submission based on ****** scenario are made – 1 hour
4. Students are grouped to discuss and make sample presentations on accused resting his
case on that of the prosecution -10 minutes
250
15 MINUTES BREAK
5. Students are grouped to discuss the reason and procedure for visit to the locus in quo – 20
minutes
6. Students are grouped to discuss and make sample presentations of opening address for
the defence using *************** scenario – 20 minutes
7. Students are grouped to discuss the ex improviso rule – 20 minutes
8. Students are grouped to present final addresses for the prosecution and the defence based
on *************scenario – 40 minutes
PRESENTATION OF CASE FOR THE DEFENCE
ACJA S300, S302 ACJL Kano provides on presentation of case for prosecution as follows:
(1) After a plea of not guilty has been taken or no plea has been made, the prosecutor may open
the case against the defendant stating shortly by what evidence he expects to prove the guilt of
the defendant.
(2) The prosecutor shall then examine the witnesses for the prosecution who may be cross-
examined by the defendant or his legal practitioner and thereafter re-examined by the prosecutor,
where necessary.
S301 ACJA, 302(3) ACJL Kano provides that “after the case of the prosecution is concluded,
the defendant or the legal practitioner representing him, if any, is entitled to address the court to
present his case and to adduce evidence where so required.”
The case of the prosecution comes to a close when the prosecution has called all his witnesses.
Upon completion of the prosecution evidence, he may inform the court at the close of his case as
follows;
 “that’s all for the prosecution” or “that is the case of the prosecution” or in any
manner that the court will understand that the prosecution has concluded giving of
evidence.
Note: Evidence may be given not on oath where it is the testimony of a child who does not
understand the nature of an oath but possesses sufficient knowledge to justify the reception of his
evidence and understands the duty of speaking the truth S209 EA; Okon v. The State. Where it
251
is the evidence of a non-believer or a person whose religious belief forbids the taking of an oath
S208 EA.
Pattern of tendering evidence
No specific pattern is laid down. But it may be regulated by the discretion of the Court S210 EA.
If, however, the complainant is present, it may be in order to call him first.
Number of witnesses required to be called
The prosecutor must call sufficient witness to prove his case. He needs not call all the available
witnesses, but those called must be sufficient S200 EA.
Where only a number out of the witnesses listed on the information are called, it has been held
valid as there is no obligation on the Prosecutor to call all of them Adaje v. The State (1979) 6 -
9 S.C. 18, Jammal v. State (1999) 12 NWLR (Pt 632) 582,597.
In Ali v. The State (1988) 1 SCNJ 17, where only one witness out of the three witnesses was
called, the Supreme Court held that it was sufficient as long as it proved the case against the
accused. Contrast the foregoing cases with Opayemi v. The State (1985) 6 S.C. 347.
Power of the presiding officer to put questions to the witnesses
He is always permitted to put questions to the witnesses testifying. But he must not take over the
conduct of the case. He should not be a "Hippy Hallet" by talking too much. In Uso v C O.P.,
Okoduwa v State, the presiding officers took over the conduct of the cases; they talked too
much in the circumstance; they forgot that we operate the accusatorial and not the inquisitorial
system of Criminal justice and by their conduct, the trials were vitiated.
Options for the Accused
When the prosecution closes his case, the accused has three options:
 Submission of no case to answer.

 Resting the case of the accused on that of the prosecution.
 Entering/Opening his defence.
Submission of no case to answer
S302 ACJA provides that “the court may, on its own motion or on application by the defendant
after hearing the evidence for the prosecution, where it considers that the evidence against the
252
defendant or any of several defendants is not sufficient to justify the continuation of the trial,
record a finding of not guilty in respect of the defendant without calling on him or them to enter
his or their defence and the defendant shall accordingly be discharged and the court shall then
call on the remaining defendant, if any, to enter his defence.” Similar provision in SS 303 ACJL
Kano, 239 ACJL Lagos.
If at the end of the Prosecution's case, the defence feels he has no case to answer, he can make a
no case submission S239 ACJL, S302 and 303 ACJA.
The application is made in the following circumstances:
(a) when there has been no evidence to prove an essential element of the offence.
(b) when the evidence adduced by the Prosecution has been so discredited as a result
of cross-examination or is so manifestly unreliable that no reasonable tribunal
could safely convict on it Tongo v COP (2007) and Agbo v the State (2013), R.
v. Coker 20 NLR 62; lbeziako v. The C.O.P. (1963) 1 All NLR 6 1., Ubanatu v.
COP (2000) 1 SCNJ 50, Emedo v. State (2002) 15 NWLR (Pt. 789) 196.
But subsection (3) of S303 ACJA further provides for what the court should consider in a no
case submission. S303 ACJA provides that
(1) Where the defendant or his legal practitioner makes a no case submission in accordance with
the provisions of this Act, the court shall call on the prosecutor to reply.
(2) The defendant or his legal practitioner has the right to reply to any new point of law raised by
the prosecutor, after which, the court shall give its ruling.
(3) In considering the application of the defendant under section 303, the court shall, in the
exercise of its discretion, have regard to whether:
(a) an essential element of the offence has been proved;
(b) there is evidence linking the defendant with the commission of the offence with
which he is charged;
(c) the evidence so far led is such that no reasonable court or tribunal would convict on it;
and
(d) any other ground on which the court may find that a prima facie case has not been
made out against the defendant for him to be called upon to answer.
253
No case submission simply means that the accused has no case to answer because there is no
evidence before the court upon which the accused can be convicted Fagoriola v FRN (2014)
The defence counsel may make a no case submission on behalf of the accused by contending that
the prosecution has not made out a case against him that will require him to answer.
NOTE that the ACJL and ACJA makes express provision on no case submission S239(1) ACJL
Lagos and 302 & 303 ACJA.
When a no case submission is made, it means that there is no legally admissible evidence linking
the accused with the essential elements of the offence as contained in the charge Ibeziako v.
COP (1963) and Aituma v. The State (2006)
 Under the ACJA, the defence counsel can by way of an application enter a no case
submission or the court can suo motu discharge the accused where there is no prima facie
evidence against him Suberu v. The state (2010)
 Where a no case submission is made, the court will determine whether prima facie
evidence against the accused person has been established or not S357 ACJA.
 The court is only meant to determine whether a prima facie case has been established
against the accused to justify his being called upon to defend himself.
On the definition of prima facie, see Prof. Adenike Grange v. FRN (2010), Prima facie was
defined to be ground for proceeding further with the trial.
In determining a no case submission, the court is not interested in evaluating the credibility of
the prosecution witnesses who have testified in court, it will only do so at the end of the trial
Ajiboye v. The state (1995). The court is only interested in identifying whether there is ground
for proceeding further with the case.
Where there is ground for proceedings, no matter how slight, the court will overrule a no case
submission. That is to say that the accused has a case to answer as he will be called to enter his
defence and give evidence Agbo v The State.
Where there is no ground for proceedings established against the defendant, he will be
discharged S302 ACJA. The discharge of an accused where a no case submission is upheld
operates as a discharge on merit. The discharge is a bar to further proceedings and the accused
can no longer be arrested or charged on the same offence S239(1) ACJL
254
The effect of a discharge on a no case submission is equivalent to an acquittal. In Nwali v. The

IGP (1956) 1 E.N.R.NLR l and The IGP v. Marke (1957) 2 F.S.C. 5, where the accused were
subsequently charged after a discharge following a no case submission, it was held on appeal that
their discharge was on merit and consequently, they should be acquitted.
The Court has an obligation to consider suo motu the prosecution's case whether a case has been
made out against the accused and if it discovers that the prosecution made out no sufficient case,
it should discharge the accused Okoro v. The State (1988) 5 NWLR 255 (Pt. 94). See however
Maiduguri v. R. (1963) NNLR 1.
Where the accused makes a no case submission, the ruling of the trial Court should be confined
to the submission and must neither be too lengthy, nor such as to fetter the discretion of the
Court. Ekanem v. R. 13 W.A.C.A. 180; Odofin Bello v. The State (1967) NMLR 1.
However, a lengthy ruling on its own is not sufficient to vitiate a trial. The discretion of the
Court must not be fettered. In Atano and Anor v. The A. G. Bendel (1988) 2 NWLR 201 (Pt.
75), the ruling was merely lengthy. Held that the discretion of the Court was not fettered thereby.
If no case submission is wrongly overruled and an accused person participates in the proceedings
whereby, he 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 contrary to S36(5) CFRN, Mumuni v. The State, (1975) 6 S.C. 79; Okoro
v. The State (1988) 5 NWLR 255 (Pt. 94), Daboh v. The State (1977) 5 S.C. 197.
Thus, it is immaterial whether the accused participates in the trial or not if in any event the
submission is wrongly overruled or the Court does not discharge when there is no case against
the accused after the close of the Prosecution's case Okoro v. The State.
Where the no case submission is rightly overruled evidence obtained from participation will be
admissible against the accused Ohuka v. The State (1988) 4 NWLR 36 (Pt. 86).
A ruling on no case submission is appealable Aminu Mohd v The State (2009).
ENTERING/OPENING HIS DEFENCE SS 240 ACJL Lagos, 304 ACJA, 305 ACJL Kano,
36(11) CFRN, Ajibaye v The State (2013)
This is an option for the defence where the court overrules a no case submission or where no
case submission was not entered after the close of prosecution case. The accused is only asked to
open his defence.
Proceedings for the defence under ACJL Lagos

255
S240 ACJL Lagos provides:
(1) At the close of the evidence in support of the charge, if it appears to the Court that a prima
facie case is made out against the defendant sufficiently to require him to make a defence, the
Court shall call upon him for his defence and—
(a) if the defendant is not represented by a legal practitioner, the Court shall inform him
that he has three alternatives open to him, namely—
(i) he may make a statement, without being sworn, from the place where he then
is, in which case he will not be liable to cross-examination; or
(ii) he may give evidence in the witness box, after being sworn as a witness; in
which case he will be liable to cross-examination; or
(iii) he need not say anything at all, if he so wishes, and in addition the Court shall
ask him if he has any witnesses to examine or other evidence to adduce in his
defence and the Court shall then hear the defendant and his witnesses and other
evidence, if any; and
(b) if the defendant is represented by a legal practitioner, the Court shall call upon the
legal practitioner to proceed with the defence.
(2) If the defendant or his legal practitioner states that he has witnesses to call but that they are
not present, the Court may, in the circumstances set forth in sections 177 to 183 take the
necessary steps to compel their attendance.
Proceedings for the defence under ACJA and ACJL Kano
S304 ACJA provides that
(1) After the case for the prosecution is concluded, the defendant or the legal practitioner
representing him, if any, is entitled to address the court at the commencement or conclusion of
his case, as he deems fit, and if no witnesses have been called for the defence than the defendant
himself or witnesses solely as to character of the defendant and no document is put in as
evidence for the defence, the prosecution shall not be entitled to address the court a second time
but if, in opening the case for the defence, the legal practitioner appearing for the defendant
introduced a new matter without supporting it by evidence, the court in its discretion may allow
the prosecution to reply.
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(2) Where any witness, other than the defendant himself or witnesses solely as to the defendant’s
character, is called or any document is put in as evidence for the defence, the legal practitioner
appearing for the defendant is entitled after evidence has been adduced to address the court a
second time on the whole case and the prosecution shall have a right of reply.
(3) The provisions of this section shall not affect the right of reply by a law officer.
RESTING THE CASE OF THE ACCUSED ON THAT OF THE PROSECUTION
The accused can choose to rest his case on that of the prosecution where he chose not to give
evidence in his case and remain silent because there is no evidence linking him with the offence.
Right to remain silent is constitutionally guaranteed by S36(11) CFRN.
 The implication is that the accused is inviting the court to decide the case based on the
evidence provided by the prosecution Sulaiman v. the State (2009).
 This option is risky as the accused stands or falls with the evidence adduced by the
prosecution Mumuni v State
 The supreme court has actually warned that it is reckless for the accused to insist on
resting his case on that of the prosecution when the prosecution has made out a prima
facie case which calls for the accused persons defence Babalola v The State (1989). On
the implication of this step, the Supreme Court noted: "Whereas prudence dictates that
an accused person should not assist the prosecution which has failed to prove every
material ingredient in the case against him by giving them the opportunity of extracting it
in witness box under the fire of cross-examination, it is reckless to insist on the exercise
of that right when the prosecution has made out a prima-facie case which calls for the
accused person's explanation" Per Nnaemeka-Agu J.S.C. in Babalola v. The State.
 The accused should only do so where the prosecution has failed to prove essential
ingredients of the offence Ali v State (1988).
 A defendant who rests his case on that of the prosecution cannot be allowed to adduce
evidence at the trial Sulaiman v The State (2009).
 The court will call for address after defendant informs the court that he is resting his case
on that of the prosecution.
NOTE that if a no case submission is overruled, the accused is asked to enter his defence but if
he chooses to rest his case on that of the prosecution, the defence cannot adduce evidence.
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OPENING ADDRESS FOR THE DEFENCE;
 At the commencement of case for the defence, he will inform the court the nature of his
defence, whether he is testifying in his own defence, the witnesses he intends to call and
the probable length of time it will take him to call all his witnesses S269(1) ACJL.
NOTE that Opening address is only optional and not mandatory. The accused can choose to
waive same.
In his defence, the accused may raise the following defences;
 Defence of Alibi
 Defence of provocation
 Defence of insanity
 Autre fois acquit or autre fois convict.
 pardon & other defences available to him.
The accused may testify as a sole witness for the defence or may call other witnesses. The
defence and his witnesses testifying (On oath) shall be examined in chief by the defence, cross
examined by the prosecution and re-examined by the defence (if necessary).
After the close of evidence by the defence, he shall inform the court that the case of the defence
has come to an end. E.g., “that’s the case for the defence”
PROCEDURE FOR VISIT TO THE LOCUS IN QUO
 At any stage in the course of proceeding/trial, there may be need for the court to visit the
scene of crime. This is called locus in quo.
 the essence of locus visit is for the court is to ascertain facts, clear doubts and see things
by itself to assist it in just determination of the case.
 The Visit to Locus can take two forms;
i. The court may adjourn its proceedings to the scene of crime, take evidence at the scene
and adjourn to continue its proceedings. While at the scene of crime, the court will
observe all its rules relating to taking of evidence from witnesses of what it saw at the
locus in quo.
ii. The court may adjourn its proceedings in court to a later date and fixed a date to visit the
locus before the next adjourned date. After the visit, the proceedings in court resumes on
the adjourned date. Evidence relating to what the witnesses saw at locus will be given in
the court room when the court has returned to the court S.263(1) ACJA
258
 The accused must be present at the place of locus or at all time when the visit is carried
out S 262(2) ACJA.
 Application for locus visit can be made by a party subject to the discretion of the court or
can be ordered by the court suo motu Unipetrol plc v. Adireje Ltd (2004), S127(1)(2)
EA.
 On a visit to locus in quo, it is necessary for the trial to judge make a record of the
proceedings of what transpired at the scene.
 The effect of non compliance with the procedure of locus visit would not nullify the
proceedings unless the accused can show that he suffered a miscarriage of justice by
reason of noncompliance Unipetrol Nig Ltd v Adireje Ltd.
APPLICATION OF THE EX-IMPROVISO RULE.
 The Ex-improviso rule is a rule of evidence where the prosecution may be allowed to call
evidence in rebuttal of evidence of the defence where the defence raises some facts not
within the contemplation of the prosecution (in the course of giving evidence) S241
ACJL
 The prosecution applies for the leave of court to call evidence in rebuttal.
FINAL ADDRESS FOR THE PARTIES
 This is the last stage of the trial before judgment. At this stage, parties are allowed to file
and adopt their final written address.
 The purpose of final address is to summarize and articulate facts as contained in the
evidence of witnesses before the court and apply the relevant laws to those facts.
 Final address is meant to assist the court in the quick understanding of how to resolve the
issues in the case Haruna v University of Agric Makurdi (2006)
 Closing address does not form part of the evidence before the court and the court is not
bound to decide the issues for determination as raised by the respective parties.
 Where the right of final address is denied a party, it may lead to reversal of the judgement
of the court where it can be proved that by virtue of the denial, a miscarriage of justice is
occasioned S294(1) CFRN; Asiru v Ayoade (2006)
 After the close of evidence for both parties, the defence is called upon to address the
court after which the prosecution will also do same and the defence can only reply on
point of law S269(1) ACJL
 Counsel may waive their rights of giving final address. They cannot be compelled to
make the address.
259
 Under the ACJA, unless the court directs otherwise, there is no provision prescribing the
form in which the address should be delivered.
 In practice, the defence is given some days (subject to the discretion of the court) to file
his final written address while the prosecution is given fewer days to file his own after he
might have been served by the defence.
o The court now gives the parties a date for adoption of their final written addresses
after which a date for judgment is slated.
o In Lagos, under the ACJL, final addresses are expected to be in writing and to be
read in open Court S269(2) ACJL Lagos.
 Where the prosecutor is a police officer (not a legal practitioner) or a private prosecutor,
his right to final address depends on the manner in which the defendant conducted his
defence.
Such right may arise as follows:
 Where the defendant testified in his defence but did not call any witness or called only a
witness as to character and tendered no document, the prosecutor shall not have a right of
reply S 304(1) ACJA, Alh v COP (1963) NNLR, Aghachi v. The COP (1963) N.NLR.
 Where the defendant testified in his defence and called witnesses who gave evidence
other than evidence as to character or the accused tendered document in support of his
case, the prosecution has a right of closing address S270 ACJL Lagos, 302(2) ACJA.
 Where the defendant in his closing address introduces new matter not supported by
evidence, with the leave of court the prosecution may reply to such new matter S304(1)
ACJA.
 A law officer or a police officer who is a legal practitioner has a right of reply to the
address of the defence at all times no matter the strategy adopted by the defence S 271
ACJL.
 A law officer is defined in Awobotu v. The State to mean the officers in the Ministry of
Justice, S1 CC. However, a private prosecutors engaged by the A.G. or the Director of
Public Prosecution (DPP) to prosecute cases on behalf of the State may qualify as law
officers. SS 494 ACJA, 371ACJL Lagos, 2 ACJL Kano on definition of law officer.as
““law officer” means the Attorney-General of the Federation and the Solicitor-General of
the Federation and includes the Director of Public Prosecutions and such other qualified
officers, by whatever names designated, to whom any of the powers of a law officer are
260
delegated to by law and a private legal practitioner authorised by the Attorney-General of

the Federation to appear for and on behalf of the Attorney-General of the Federation.”
 The right of reply is discretionary and the law officer may choose not to reply or exercise
his right Adamu v. The A. G., Edo State (1986) 2 NWLR 284.
 The SC held in Ndu v. The State (1990) NWLR 550 that a party or his counsel cannot
confer on himself the right to do so at his pleasure. A party or counsel may forfeit or be
taken to waive his right of address if he fails to address when called upon to do so at the
close of the evidence. Counsel's failure to address does not vitiate the proceedings
although address will be of immense assistance to the judge if he exercises this right.
Composition of the Court:
The Magistrate or Judge presiding on the case shall hear the case from arraignment to sentence.
The composition must be constant and if altered (i.e., by transfer, retirement or death of the
officer presiding) the trial must commence de novo - afresh. Ogbunyinya v. Okudo (1976) 6 -9
S.C.32; Umukoro v. State (1976) 6 U.I.L.R.169.
In Gabriel Iyela v. The COP (1969) NMLR 180, at the time the Magistrate sentenced the
accused in Kaduna, he had been transferred to another State. He came back and delivered the
judgment. This was held to be no judgment since he had vacated office, he could not deliver the
judgment again.
Note the innovation in Section 396 (7) ACJA: Notwithstanding the provision of any other law to
the contrary, a judge of the High Court who has been elevated to the Court of Appeal shall have
dispensation to continue to sit as a High Court judge only for the purpose of concluding any
part- heard criminal matter pending before him at the time of his elevation and shall conclude
the same within reasonable time: Provided that this subsection shall not prevent him from
assuming duty as a Justice of the Court of Appeal.
Where a judge or Magistrate, having tried a case is prevented from delivering his judgment or
sentence by illness or other unavoidable cause, such judgment or sentence, if the same had been
reduced into writing and signed by the judge or Magistrate, may be delivered and pronounced in
open Court in the presence of the accused by any other judge or Magistrate Ss 281 ACJL Lagos,
315 ACJA, 316 ACJL Kano.
PRE-CLASS QUESTION FOR WEEK 15 (TRIAL 4)
261
Jim John, Mshie Aku and Brown Okotebu were arraigned before the High Court of the Federal
Capital Territory, Abuja, for the offence of assault occasioning bodily harm. Two witnesses were
called by the prosecution, including a medical doctor, who was said to have treated the victim.
At the trial, the Police investigation officer (IPO) recalled how he traced and arrested the
defendants in their various hideouts. He also tendered the confessional statements supposedly
made by the defendants. He equally submitted in evidence, a bunch of three canes, as exhibits
connected with the crime.
In the heat of cross-examination however, the IPO admitted that he never visited the scene of
crime and that the sticks tendered in evidence were brought to the police station by the nominal
complainant. He also added that the confessional statements, earlier tendered in evidence were
written at the police station by another police officer. In his own testimony, the medical doctor
tendered a document which shows that the victim was treated for malaria.
Thereafter, the prosecution closed its case. At this juncture, Jim John, the 1st defendant, a legal
practitioner who represented himself, made an application that the prosecution has not made out
any case against him, which would require him to answer to the charge. However, he was
promptly overruled by the learned trial judge, who rather made an order for a visit to the scene of
crime.
When the trial resumed, the 1st defendant opted to remain silent throughout the proceedings but
the others, not represented by counsel, provided incriminating evidence which led to the
conviction of all the accused persons.
ANSWER THE FOLLOWING QUESTIONS:
(a) Mention the various options open to Jim John, Mshie Aku and Brown Okotebu at the close of
the prosecution’s case?
(b) Comment on the propriety or otherwise of the application made by the 1st defendant at the
end of the prosecutions’ case and state whether the learned trial judge was right in rejecting the
application
(c) Assuming that the application of the 1st defendant in (b) above was upheld, what would be
the effect on the substantive matter?
(d) Can the conviction of the court stand in the present instance? Give reasons for your answer
(e) What are the circumstances which would require a court to make an order for a visit to the
scene of crime?
262
(f) Outline the procedure for conducting the visit in (e) above
263
WEEK 17 – JUDGMENT AND SENTENCING
OUTCOMES
1. Identify the contents and form of a valid judgment and the effects of failure to comply
with SS. 245 of the CPL; 268(1) & 269 of the CPC Law; 275 ACJL, Lagos 2011; 308
ACJA, 2015 and 294 of the Constitution.
2. Identify the time limit within which judgment shall be delivered and the constitutional
implication of failure to do so within time-s. 294(5) of the Constitution.
3. Explain the time and procedure for making an allocutus
4. Identify the power of the court to take other offences into consideration before passing
sentence and the power to convict for an offence not expressly charged.
5. Identify the various types of punishments including the mandatory sentence for capital
offences (death penalty) and the form of pronouncing such sentences. -S.402 of the
ACJA, 2015
6. Explain the effect of failure to comply with the form of pronouncing the death sentence
as well as the exceptions to the death penalty.
7. Explain the procedure for prerogative of mercy
8. Identify the attractions of restorative justice.
CONTENTS
1. Contents and form of a valid judgment and the effects of failure to comply with- SS. 245
of the CPL; 268(1) & 269 of the & CPC Law; 275 ACJL, Lagos 2011; 308 ACJA,
2015.
2. Time limit within which to deliver judgment and failure to deliver judgment within the
time set by the constitution- s. 294(5) of the Constitution.
3. Conviction and Allocutus
4. The power of a trial court to take other offences into consideration and the power to
convict an accused for an offence with which he/she was not expressly charged.
5. Sentencing alternatives including the death sentence and prerogative of mercy.
6. Mode of pronouncing the death sentence and effect of non- compliance with the
prescribed mode. -S.402 ACJA, 2015
7. Restorative Justice.
264
8. Students are grouped to discuss the contents and form of a valid judgment and effect of
failure to comply with the provisions of SS. 245 of the CPL;268(1) & 269 of the &
CPC Law; 275 ACJL, Lagos 2011; 308 ACJA, 2015. – 30 minutes.
2. Tutor presents ***********scenario and the students as grouped to make a critique of

the judgment - 40 minutes
3. Students as grouped to make an allocutus on behalf of the convicts in the
*********scenario – 20 minutes
15 MINUTES BREAK
4. Students are grouped to discuss the various types of punishments - 30 minutes

5. Students are grouped to discuss the power of the court to take into consideration other
offences before sentencing as well as the power to convict for an offence not expressly
charged– 30 minutes.
6. Students are grouped to discuss mandatory sentence of death in certain offences, the
mode of pronouncing same, effect of complying with the mode as well as the question of
prerogative of mercy - 30 minutes
7. Students are grouped to debate the theory of restorative justice and retributive justice – 20
minutes
JUDGMENT DEFINED
Judgment (verdict) is defined as “A Court’s final determination of the rights and obligations of
the parties in a case”, Black’s Law Dictionary 7th Edn. Page 846., S 6(6)(b) CFRN.
Judgment marks the end of a trial before a competent court. In Criminal Matters in Nigeria, it is
regulated by Ss 275 ACJL Lagos; 308 ACJA, 309 ACJL Kano, & 294 CFRN.
At the close of evidence by the parties and final address, the court proceeds to judgment. The
writing and delivery of judgment/sentencing by a competent court on all the issues (charges and
counts also) raised by the parties signifies the end of a criminal trial.
265
PLACE FOR DELIVERY OF JUDGMENT
Judgment is to be delivered in open court Ss 36(4) CFRN, 307(2) ACJA, 200 ACJL Lagos,
308(2) ACJL Kano.
Substance of judgment to be explained to the defendant in the language he understands S36(6)(e)

CFRN.
WHEN TO DELIVER JUDGMENT
Judgment to be delivered when the defendant is present in Court or has surrendered to the
custody of the court Ss 352(4) & (5) ACJA, 352(4) & (5) ACJL Kano. If not, the entire
proceedings will be a nullity Audu v State (2016) 1 NWLR (1494)557; Mohammed v State
(2015) 13 NWLR (Pt.1476) 276.
FEATURES/CONTENTS OF A VALID JUDGMENT SS 308(1) ACJA, 275 ACJL Lagos,

309 ACJL Kano.
S308(1) ACJA provides that, “the Judge or Magistrate shall record his judgment in writing and
every judgment shall contain the point or points for determination, the decision and the reasons
for the decision and shall be dated and signed by the Judge or Magistrate at the time of
pronouncing it.”
Thus, the features/contents are:
1. Be in writing
2. Contain the point or points for determination
3. Contain the decision
4. Contain the reasons for the decision
5. Be dated and signed by the judge or magistrate at the time of pronouncing it
JUDGMENT MUST BE IN WRITING
Generally, no court is allowed by law in Nigeria to deliver an oral judgment SS 308(1) ACJA,
275 ACJL Lagos, 309 ACJL Kano, 294(1) CFRN, Queen v Fadina (1958); Unakalamba v
COP (1958) 3 FSC 7; Osayande v State.
Judgment dictated in open Court is not written judgment. In Okoduwa & Anor v. The State
(1975) 5 S.C. 23. Instead of recording his judgment in writing and signing it and then
pronouncing it at the same time, Justice Omo-Eboh dictated the judgment. The SC held that he
was in error.
266
A HC judge cannot deliver judgment based on notes made by him during trial, which notes did
not form part of the record of appeal and thereafter wrote a judgment which formed part of the
record of appeal. The reason is that once a judge has pronounced judgment, he is functus officio
and any Judgment reduced into writing thereafter cannot be looked at by the CA, The Queen v
Fadina (1958) 3 F.S.C. Thus, judgment read from note made by the judge during the course of
the trial is an oral judgment.
Judgment read from notes made by the judge’s son/daughter is an oral judgment Ajayi v State
(1978). In the case, the judge in the course of reading the judgment said he was reading the
judgment from a note scribbled by his son. The record sent to the Appeal Court did not indicate
this. By attempting to date the latter judgment- the one sent to the Court of Appeal- which he did
not read to the accused in Court so as to tally with what he actually read in Court, he was held to
be in violation of S 245 CPL similar to above relevant sections.
Judgment dictated in court by judge to a stenographer/typist remains an oral judgment

Okoruwa v State (1975).
A judge could write the judgment after the close of all evidence, subject to any amendment he
may wish to make on the bench during or after final addresses. However, he must wait till after
the final addresses before he can deliver the judgment R. v. Cobolah 10 W.A.C.A.283.
Oral Judgment and the Law
In the FCT (ACJA), a magistrate can generally deliver an oral judgment (albeit in part as it is
after briefly recording his decision and reason for the decision in the book). S308(2) provides
that “the Magistrate, instead of writing the judgment, may record briefly in the book his decision
or finding and his reason for the decision or finding, and then deliver an oral judgment.” Thus,
by a Magistrate may deliver an oral judgment in the FCT, Unakalamba v The Police (1958).
It was held in Osayande v. The C.O.P (1985) 3 S.C. 154 that the judgment of a Magistrate is
not invalidated for failure to comply strictly with Section 245 Criminal Procedure Law. Only a
minimum compliance is required. SC held that this was not sufficient to invalidate the
proceedings.
However, there is no such provision in both SS 275 ACJL Lagos and 309 ACJL Kano, thus,
by necessary implication oral judgement is prohibited in both states.
S 294(1) CFRN provides that “every court established under this Constitution shall deliver its
decision in writing not later than ninety days after the conclusion of evidence and final addresses
and furnish all parties to the cause or matter determined with duly authenticated copies of the
decision within seven days of the delivery thereof.”
267
Does S308(2) ACJA conflict with S294(1) CFRN? The answer is NO.
S308(2) ACJA does not conflict with the CFRN because the constitutional requirement that
every judgment be in writing under S294(1) CFRN applies only to “every court established
under the constitution”. The Magistrate court is not established under the constitution as it is not
listed under S6(5) CFRN. Magistrate courts are established by the Laws enacted by the Houses
of Assembly of each State Okoruwa v State (1975).
Although, this reasoning may be questionable because S6(5)(k) CFRN makes additional
provision to the courts to which the section applies “such other court as may be authorised by
law to exercise jurisdiction at first instance or on appeal on matters with respect to which a
House of Assembly may make laws.” Does it then not cover magistrate courts? Well, the court
has answered in the negative.
JUDGMENT MUST CONTAIN THE POINT(S) FOR DETERMINATION
The judgment must indicate whether or not the accused committed the offence charged; or
whether he committed a lesser offence which he was not charged but in appropriate cases may be
convicted.
Regard must be had to the substantive criminal law to identify the ingredients of the offence.
Regard must be had to the evidence adduced. These are the basis for the determination of the
guilt or innocence of the accused, Tanko v State (2009).
Court must make specific findings on each point identified. Decision of the court on each point
will lead to the findings of the court.
QUERY: What findings can the court make in a judgment?
TYPES OF FINDING IN A JUDGMENT:

1. Not Guilty
The Court may find the Defendant not guilty of the charge. Where such a finding is made the
Defendant shall be immediately discharged and acquitted Ss 309 ACJA, 276 ACJL Lagos, 310
ACJL Kano.
Any delay in release of the Defendant from custody after finding of not guilty could amount to
unlawful detention, State v Okpala (2012) 3 NWLR (Pt. 1287) 338; Bamaiyi v AGF (2001) 12
NWLR (Pt.727) 468.
268
2. Guilty Findings
The Court may on the other hand find the defendant guilty of the offence(s) charged. Where such
a finding is made, the court may proceed with or adjourn for sentencing hearing before passing a
sentence Ss 311(1) ACJA, 278(1) ACJL Lagos, 312(1) ACJL Kano. But note allocutus in the
preceding sections.
DECISION OF THE COURT ON THE POINT(S) FOR DETERMINATION
The judge must analyse or review the evidence before him to establish if there is proof beyond
reasonable doubt of the ingredients of the offence(s) Onafowokan v State (1987); Willie John v
State (1967) NMLR 101.
Judgment must be given on every count, where there are more counts than one. Also, if the
judgment is a judgment of conviction, it shall specify the offence for which and the Section
under which the accused is convicted and sentenced.
In Yesufu v. The I G P 1960 L.L.R. 140, the accused was charged with some counts of stealing
for which he was found guilty. The Magistrate did not however specify the particular kind of
stealing he was talking about; neither did the judge specify the punishment allotted to such
counts of which he found the accused guilty. Therefore, the accused was discharged and
acquitted. See also Aigbe v. The State (1976) NMLR 184. See however Bankole v. The State
(1980) 1 N.C.R.334.
THE REASON(S) FOR THE COURT DECISION
The trial court must carefully evaluate the evidence of the prosecution and defence to form a
good reason Daudu v FRN (2018)10 NWLR (Pt.1626)169@194 SC.
Where the trial court prefers a version of the evidence to the other, the reason must be stated
State v Ajie (2000).
Reasons for the decision is not court sensitive Nigerian Army v Aminun Kano (2010), Per
Oguntade JSC held that “it is compulsory that judgment of civil or military courts should show
the reasoning behind the conclusion arrived. The judgment should discuss the nature of the
evidence called, which evidence is rejected or accepted and why. It is only in this way that the
constitution of the Federal Republic of Nigeria, 1999 could be complied with. A judgment
whether in the military or civil courts which does not ex facie show the basis of a pronouncement
is an infraction of the citizen’s right to fair hearing.” Bakoshi v Chief of Naval Staff (2004).
269
Failure to give reasons for the decision will lead to quashing the decision on appeal Nwaefulu v
State (1981); Adamu v The State; Willie John v The State (1967) NMLR 101.
In Aigbe v. The State (1976) NMLR 184, the trial judge inter alia found the accused guilty of
some of the counts and sentenced him. He did not give any reasons for his decisions and on
appeal it was held that he violated Section 245 C.P.L.
In Nwaefulu & Anor v. The State (1981) 1 N.C.R.229 where the Magistrate failed to give
reasons for his decision.
JUDGMENT MUST BE DATED AND SIGNED BY THE JUDGE
An undated and unsigned judgment is worthless Haruna v Uni. Agric. Makurdi; Sunday v
State (2011); Bakoshi v Chief of Naval Staff (2004). In Haruna, it was held that an unsigned
and undated judgment is null and void and of no effect.
Where a judgement is accompanied by ancillary orders appearing immediately after the

judgment, a signature appearing after the orders instead of after the judgment amounts to
sufficient compliance.
In Obareki v. The State (1982) 2 N.C.R.63, the TC neither dated nor signed the judgment but
rather signed after the order stating the conditions of appeal. The appellant appealed against the
conviction on the ground that the judgment was neither signed nor dated. It was held that the
signature and date on the order for conditions for appeal related not only to the orders but to the
judgment as well, and hence sufficed. See also Tsalibawa v. Habiba (1991) 2 NWLR 461.
The trial judge may write and sign a judgment and another judge will deliver and date it Ss
294(2) CFRN, 281 ACJL Lagos, 315 ACJA, 316 ACJL Kano. But another judge who delivers
a judgment must date and sign it irrespective of previous signing AGF v ANPP (supra). Does it
then mean that the judgment will be signed and dated twice? SS 308 ACJA, 275 ACJL Lagos
and 309 ACJL Kano referred to date and signature of the magistrate or judge writing the
judgment, it would seem conflicting to now interpret the provisions of Ss 294(2) CFRN, 281
ACJL Lagos, 315 ACJA, 316 ACJL Kano to mean anything otherwise as was suggested by
AGF v ANPP that it has to be also signed by the M/J delivering the judgment to reflect the date
of delivery, it may also be because of the last word in the section “at the time of pronouncing it.”
The relevant date is the date of delivery of the judgment or date of pronouncement. This is also
the opinion of Agaba. QUERY: WHY? See Ss 275 ACJL, 308 (1) ACJA, AGF v ANPP.
270
HOW TO PROVE SIGNATURE & DATE
It is the manuscript of the judgment and not the typed judgment that is used in proving signature
and date Sunday v State (2011) All FWLR (Pt. 568) 922 at 941.
EFFECT OF FAILURE TO COMPLY WITH SS 275 ACJL Lagos, 308 ACJA, 309 ACJL
Kano.
Generally, non-compliance renders the judgment a nullity, but it depends on whether it leads to
irregularity or miscarriage of justice Bakoshi v Chief of Naval Staff (2004); Willie John v The
State (1976); Unakalamba v COP (1958); Onafowokan v The State (1987); Aigbe & Anor v
The State (2009); Obareki v State (1982).
Depending on the circumstances of the case, when such happens, the court may order either a
retrial or an acquittal. It is usually a retrial e.g., in Aigbe v State but on rare instances can also be
acquittal like in Ajayi v Zaria NA wherein the appellant had already served the substantial part
of the sentence, the court acquitted as it may amount to injustice having him go through trial
again.
TIME LIMIT TO DELIVER JUDGMENT S 294(1) CFRN
S294(1) CFRN provides that “every court established under this Constitution shall deliver its
decision in writing not later than ninety days after the conclusion of evidence and final
addresses and furnish all parties to the cause or matter determined with duly authenticated copies
of the decision within seven days of the delivery thereof.”
To be delivered within 90 days after conclusion of final addresses by counsel. Where parties
elect to waive final addresses, time starts to run at conclusion of the case for defence and the
court adjourns for judgment.
Compliance with S294(1) CFRN is mandatory Shehu v State (1982). In the case, the appellant
was tried and found guilty of culpable homicide and the court adjourned for judgment but it
wasn’t delivered until after 5 months. He contended that falling outside of the 90 days period
renders the judgment a nullity, his argument was upheld pursuant to S258(1) CFRN 1979 but
this may not be upheld now by virtue of S294(5) CFRN.
EFFECT OF FAILURE TO DELIVER JUDGMENT WITHIN 90 DAYS
S294(5) CFRN provides that “the decision of a court shall not be set aside or treated as a nullity
solely on the ground of non-compliance with the provisions of subsection (1) of this section
271
unless the court exercising jurisdiction by way of appeal or review of that decision is satisfied
that the party complaining has suffered a miscarriage of justice by reason thereof.”
Previously it renders the judgment void under the 1979 CFRN S 258(1).
Under the 1999 CFRN under S294(5) failure does not render the judgment void but voidable. It
shall be a nullity only if the appellant shows that he has suffered a miscarriage of justice by
reason of the delay Ogbu v State (2003); Aposi v The State (1971). Onus is therefore on the
appellant to prove the miscarriage of justice.
DELIVERING OF JUDGMENT
1. A judge may be transferred, elevated, retired. In such a case, he cannot deliver a valid
judgment. In Udeogu v FRN 2020, SC held S396(7) ACJA void for being inconsistent with the
provisions of SS 250 and 290 CFRN, an elevated judge cannot return to complete a part heard.
2. Can Judgment be delivered in the absence of the Judge who heard the case? YES! Ss
294(2) CFRN, 281 ACJL Lagos, 315 ACJA, 316 ACJL Kano. A written and signed judgment
by a judge may be delivered by another, if the trial judge is ill or unavoidably absent.
S315 ACJA provides that “where a Judge or Magistrate having tried a case is prevented by
illness or other unavoidable cause from delivering his judgment or sentence, the judgment or the
sentence, if it has been reduced into writing and signed by the Judge or Magistrate, may be
delivered and pronounced in open court by any other Judge or Magistrate in the presence of the
defendant.” See AGF v ANPP (2003); Iyela v COP (1969).
3. Another judge who delivered the judgment must date and sign it, irrespective of the previous
signing and dating AGF v. ANPP.
4. Each justice of SC or CA shall express or deliver his opinion in writing or state in writing that
he adopts the opinion of another judge who delivers a written opinion S 294(2) CFRN.
5. For the purpose of delivering its decision under this section, the Supreme court, or the court of
appeal shall be deemed to be duly constituted if at least one member of that court sits for that
purpose. S294 (4) CFRN.
6. Composition of trial court to remain constant from commencement to judgment. If

composition is altered, case to start de novo Iyela v COP (1969) N.M.L.R 130.
7. If case starts de novo, evidence in the previous trial is abandoned Uguru v State (2002).
272
JUDGMENT AT COURT OF APPEAL AND SUPREME COURT
S294 CFRN provides
(2) Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his
opinion in writing, or may state in writing that he adopts the opinion of any other Justice who
delivers a written opinion:
Provided that it shall not be necessary for the Justices who heard a cause or matter to be present
when judgment is to be delivered and the opinion of a Justice may be pronounced or read by any
other Justice whether or not he was present at the hearing.
(3) A decision of a court consisting of more than one Judge shall be determined by the opinion of
the majority of its members.
(4) For the purpose of delivering its decision under this section, the Supreme court, or the court
of appeal shall be deemed to be duly constituted if at least one member of that court sits for that
purpose.
All Justices who sat on the case need not be present to deliver judgment N.J.C v Dakwang
(2019) 7 NWLR (Pt. 1672) 532 at 546 SC. One Justice of the court suffices whether or not he
was among the panel.
MAJORITY DECISION
▪ Decision of a Court consisting of more than one judge is determined by opinion of the
majority N.J.C v Dakwang (2019) 7 NWLR (Pt. 1672) 532 at 552 SC.
▪ Change of quorum of trial court and appellate court between hearing and delivery of
judgment: Distinction thereof N.J.C v Dakwang (2019) 7 NWLR (Pt. 1672) 532 at 551-
552 SC.
▪ If the judge ceases to be a Justice of the court before the date fixed for judgment, his
opinion cannot be read/delivered but pronounced, Shitta-Bey v AGF (1998) 10 NWLR
(Pt.570) 392; A.G Imo v A.G Rivers (1983) 8 S.C 10; Ajiboye v Ishola (2006) 13
NWLR (Pt.998)628.
AMENDMENT OF JUDGMENT
Once a Judge pronounces judgment, he becomes functus officio Unakalamba v COP. In

Bakare v Apena (1986) 6 SC 460 – The judge after delivering judgment discovered an error and
amended the judgment. Thereafter he invited the parties and delivered the amended judgment.
The amended judgment was nullified on the ground that the judge has become functus officio.
273
WHEN JUDGMENT MAY BE AMENDED
While there were grounds for amendment of judgement under CPL and CPCL, there are no
expression provisions for such under ACJA, ACJL Lagos and ACJL Kano. The closest
provisions to that are in SS 318 ACJA, 284 ACJL Lagos and 319 ACJL Kano but they are on
amendment of warrants or orders for commitment based on an existing judgment and not on the
judgment itself.
S318 ACJA provides that;
The court may, at any time, amend any defect in an order or warrant of commitment and no:
(a) omission or error as to time and place; or
(c) defect in form in any order or warrant of commitment given under this Act,
shall be held to render void or unlawful an act done or intended to be done by virtue of the order
or warrant if it is mentioned, or may be inferred, that it is founded on a conviction or judgment
sufficient to sustain it.
But in practice other instances may include:
1. To correct clerical error.

2. To correct errors from accidental slip.
3. To make the intention of the court clear.
CONCEPT OF ARREST OF JUDGMENT
This is not within our laws but obtainable in England and some other jurisdictions. It is simply
motion to correct a defect in judgement thereby suspend the delivery of such judgment until such
is corrected. Although, not called that name in Nigeria but such a motion may be filed and it
would have similar effect since a court is under obligation to hear motions filed before it before
judgement Shettima v. Goni.
WHAT IS CONVICTION?
Conviction is the act or process of judicially finding someone guilty of a crime- Black’s Law
Dictionary 7th edn. Page 335, Yalekhue v Omoregbe (1991) 3 NWLR (Pt.177) 94.
It does not matter that the accused was not given a custodial sentence, Yalekhue v Omoregbe.
274
The court’s judgment must convict the accused before he is sentenced R v Ekpo (1947). The D
was sentenced to death for murder but he appealed that he was not expressly convicted before
sentencing but the court held that although no verdict of guilty of murder was seen on the
records, the evidence and findings show conviction for murder.
But if the records don’t show it, it will be quashed as was the case in Oyediran v The Repulic.
The judge must convict the accused before sentence. In Oyediran v. The Republic, the judge
did not convict the accused on some of the counts before passing sentence. The sentence was
held void. Thus, the court must pronounce sentence on each count where the counts are more
than one.
It was also held that where there is more than one accused, a separate verdict must be returned in
respect of each accused person Bankole v. The State, The Police v. Yesufu (1960) L.L.R. 140.
EFFECT OF FAILURE TO RECORD CONVICTION BEFORE SENTENCE
Depends on the circumstances of the case.
• If the finding of guilt can be gleaned from the records, Court will see it as an irregularity
that can be remedied by appellate court R v Ekpo.
• If it is not discernible from the records, failure to enter a conviction may invalidate the
judgment and lead to an order of retrial Oyediran v. The Republic, Adamu v State
(1986) 3 NWLR (Pt.32)865.
THE POWER OF THE TRIAL COURT TO CONVICT ON OTHER CHARGES

PENDING; SS 313 ACJA, 279(1) ACJL Lagos, 314 ACJL Kano.
The court may take cognisance of other offences pending against the convicted person before
passing sentence.
S313 ACJA provides;
(1) Where a defendant is found guilty of an offence, the court may, in passing sentence, take into
consideration any other charge then pending against him, where the defendant admits the other
charge and desires that it be taken into consideration and if the prosecutor of the other charge
consents.
(2) Where a desire is expressed under subsection (1) of this section and consent given, the court
shall:
275
(a) make an entry to that effect on the record book;
(b) the prosecution shall state the facts of the case in accordance with section 300 of this
Act.
(3) Where the other charge pending against the defendant is considered in accordance with
subsections (1) and (2) of this section and sentence passed on the defendant with consideration or
in respect of the other pending charge, the defendant shall not, subject to the provisions of
sections 236 to 237 of this Act, or unless the conviction has been set aside, be liable to be
charged or tried in respect of any such offence so taken into consideration.
CONDITIONS PRECEDENT
(a) Must have been found guilty of the present offence;

(b) Admission of guilt of those other offences by the defendant;
(c) Agreed that the other charges be taken into consideration in passing sentence on him;
(d) The prosecutor of that other charge must also consent.
(e) The offence must have been charged.
(f) The Court must have jurisdiction to try the offence.
The grave offence and the lesser offence must both be provided for under the same law FRN v
Adeniyi (2019) 7NWLR (Pt. 1671)238 SC; Okobi v State (1984).
Accused or his counsel may apply to the court after conviction to take cognisance of such
offences pending against him in other courts.
CAVEATS ON TAKING OTHER OFFENCES INTO CONSIDERATION
• The court must not pass a greater sentence which exceeds its jurisdiction.
• The maximum sentence to be imposed on the accused shall not exceed that for the
offence which he has been convicted.
AUTRO FOIS CONVICT IN TAKING OTHER OFFENCES INTO CONSIDERATION
Where a sentence is passed on the accused after considering other offences, he cannot again be
tried for those other offence unless the conviction is set aside See above provisions.
CONVICTION FOR AN OFFENCE NOT EXPRESSLY CHARGED
Accused can only be tried and convicted for an offence which he has pleaded and expressly
charged S 36(6)(a) CFRN.
276
EXCEPTIONS FOR CONVICTION FOR OFFENCE NOT EXPRESSELY CHARGED
❖ Statutes have provided exceptions Ss 223-231 ACJA, 166-171 ACJL Lagos.
ACJA SS 223 – 231 provides as follows:
223. Where defendant charged with one offence may be convicted of another.
Where a defendant is charged with one offence and it appears in evidence that he committed a
similar offence with which he might have been charged under the provisions of this Act, he may
be convicted of the offence, which he is shown to have committed although he was not charged
with it.
224. Full offence charged, attempt proved.
Where a defendant is charged with an offence but the evidence establishes an attempt to commit
the offence, he may be convicted of having attempted to commit that offence although the
attempt is not separately charged.
225. Attempt charged-full offence proved.
Where a defendant is charged with an attempt to commit an offence but the evidence establishes
the commission of the full offence he shall not be entitled to an acquittal but he may be convicted
of the attempt and punished accordingly.
226. Liability as to further prosecution.
Where a defendant has been convicted of an attempt under either section 224 or 225 of this Act,
he shall not subsequently be liable to be prosecuted for the offence for which he was convicted
of attempting to commit.
227. On charge of an offence conviction as accessory after the fact to that or connected
offence may follow.
Where a defendant is charged with an offence and the evidence establishes that he is an
accessory after the fact to that offence or to some other offence of which a defendant charged
with the first-mentioned offence, may be convicted by virtue of any of the provisions of this Act,
he may be convicted as an accessory after the fact to that offence or that other offence, as the
case may be and be punished accordingly.
277
228. Defendant tried for lesser offence but a higher offence is proved.
(1) Where on the trial of a defendant for a lesser offence it appears that the facts proved in
evidence amount in law to a higher offence not charged, the defendant shall not by this reason be
acquitted of the lesser offence.
(2) The defendant referred to in subsection (1) of this section is not liable afterwards to be
prosecuted for the higher offence proved, but the court may in its discretion stop the trial of the
lesser offence or direct that the defendant be charged and tried for the higher offence, in which
case, the defendant may be dealt with in all respects as if he had not been put to trial for the
lesser offence.
(3) Where a charge is brought for the higher offence pursuant to this section, the defendant shall
be tried before another court.
229. Conviction of kindred offences relating to property.
Where a defendant is charged with an offence relating to property and the evidence establishes
the commission by him with respect to the same property of another offence, he may be
convicted of that other offence although he was not charged with it.
230. Defendant charged with burglary may be convicted of kindred offence.
Where on trial for burglary, housebreaking or related offence, the facts proved in evidence justify
a conviction for some other offences and not the offence with which the defendant is charged, he
may be convicted of the other offence and be punished as if he had been convicted on a charge or
an information charging him with the offence.
231. On charge of rape conviction under defilement, incest, unnatural or indecent assault
may follow.
Where on a trial for rape, defilement, incest, unnatural or indecent offences against a person, the
facts proved in evidence can ground conviction for an indecent assault and not the offence with
which the defendant is charged, he may be convicted of the offence of indecent assault, and be
punished as if he had been convicted on a charge or an information charging him with the
offence of indecent assault.
NOTABLES:
An accused charged of greater offence may be convicted of lesser offence Okeke vs State.
278
In Adava v. State, the defendants who were charged and convicted for homicide punishable with
death. At the SC, their appeal was allowed and they were convicted for a lesser offence of
voluntarily causing hurt without provocation. The rationale is that where an accused is charged
for a graver offence, he is deemed to have notice of the lesser one.
In Nwachukwu v. The State and Maja v. The State, it was held that where a D is charged for
an offence, he may be convicted of a lesser offence where the facts proved cannot earn him a
conviction on the offence charged. He needs not be informed of the lesser offence. He is deemed
to have had notice of it because he had notice of the greater offence for which he was charged.
The effect of the foregoing principle is that it is no violation of the fundamental human rights not
to inform the accused of lesser offence for which he is convicted if he is informed of a graver
offence. See Uguru v. State [2002] 4 S.C.N.J. 282.
Also, a D can be convicted of another offence by which he was not charged based on the
evidence disclosed at trial without calling him to make a fresh plea. In Nwachukwu v. State, the
D was being tried for armed robbery. At the end of the trial, the offence was not proved but he
was convicted of robbery. The D’s appeal was dismissed. The ingredient of offence for which
the D is to be convicted must be contained in the evidence of the offence for which he is been
tried.
The court can convict for a lesser offence not charged provided it is supported by evidence where
accused is charged with offence consisting of several particulars. Ingredients must be embedded
in proof of the main offence Babalola v State (1989); Kada v State (1991).
The offence convicted must carry a lesser punishment S169 ACJL.
D charged with an offence may be convicted of attempt to commit that offence Ss.160 ACJL, S.
224 ACJA.
An accused convicted of attempt to commit a substantive offence cannot be prosecuted again for
the substantive offence Ss. 162 ACJL; S. 226 ACJA & S36(9) CFRN
Prosecution may at the close of evidence but before judgment apply to amend the charge to
include the substantive offence SS 155(1) ACJL.
• Note the mandatory procedure the court must follow in amended charge;
o Procedure
o Read and explain the new charge to the defendant. S216(2) ACJA, 155(2) ACJL
Lagos, S223(3) ACJL Kano. S216 (2) ACJA
o The defendant is to enter a fresh plea on the amended charge. S217(1) ACJA, 156(1)
ACJL Lagos, S223(3) ACJL Kano
279
o Adjourn if proceeding immediately with the trial will prejudice the defence or
prosecution S218(1) ACJA, S156(3) ACJL Lagos, S225(1) ACJL Kano
o Recall of witness(es) S219 ACJA, S157 ACJL Lagos, S226 ACJL Kano
o Endorsement S218(2) ACJA, S156(4) ACJL Lagos, S225(2) ACJL Kano
Where the charge is amended to include the substantive offence, it will be deemed to be in the
alternative so that accused cannot be convicted on both Azie v The State (1973).
Convict cannot be charged for a federal offence and convicted under State offence Bello v State
(2020) 3 NWLR (Pt. 1710) 72 @ 92 SC.
ALLOCUTUS SS 277 ACJL Lagos, 310 ACJA, 311 ACJL Kano.
It is an unsworn statement from a convicted person to the judge in which he pleads for mercy,
explains his conduct, apologise for the crime or says anything else in an effort to lessen the
impending sentence Black’s Law Dictionary, 7th edn. Page 75.
POINTS ON ALLOCUTUS
• It is made after conviction or plea of guilty, before sentence.

• The registrar or the judge will inform the convicted person of his right to make an
allocutus S 277 ACJL but ACJA and ACJL Kano are silent on who to make the call.
• It is a plea in mitigation; therefore, it does not absolve the convicted person of
punishment Ogbeide v COP (1964).
• Allocutus is ineffective where the law relating to an offence provides a mandatory
punishment or minimum punishment.
• Allocutus must be made by the defendant and not his counsel on his behalf as was held
by the SC in Francis v FRN 2021.
• No amount of allocutus will mitigate a capital punishment State v John (2013) 12
NWLR (Pt. 1368) 337.
• After the convicted person makes his allocutus, the court proceeds to sentence.
• Calling for an allocutus by the judge instead of registrar does not vitiate the sentence S
277 ACJL Lagos.
• Statements made by a convicted person in allocutus is not subject to cross-examination.
EFFECT OF FAILURE TO CALL FOR AN ALLOCUTUS
• Failure to call on the convicted person to make an allocutus does not affect the validity of
the sentence or trial Edwin v State (2019), S 277 ACJL.
• Allocutus is neither a fundamental right nor a defence in law.
280
SENTENCING
Sentence is defined as “the punishment imposed according to law on a criminal wrongdoer after
his conviction” Black’s Law Dictionary 7th Edn. Page 1367; Yalekhue v Omoregbe.
ACJA APPROACH TO SENTENCING
▪ ACJA and ACJL Kano appear to recognize both concepts of retributive and restorative
justice. Consequently, SS 401(2) ACJA, 395 ACJL Kano capture the following main
objectives of sentencing:
S401(2) ACJA provides that: in determining a sentence, the court shall have the following
objectives in mind, and may decide in each case the objectives that are more appropriate or even
possible:
(a) prevention, that is, the objective of persuading the convict to give up committing
offence in the future, because the consequences of crime is unpleasant;
(b) restraint, that is, the objective of keeping the convict from committing more offence
by isolating him from society;
(c) rehabilitation, that is, the objective of providing the convict with treatment or
training that will make him into a reformed citizen;
(d) deterrence, that is, the objective of warning others not to commit offence by making
an example of the convict;
(e) education of the public, that is, the objective of making a clear distinction between
good and bad conduct by punishing bad conduct;
(f) retribution, that is, the objective of giving the convict the punishment he deserves,
and giving the society or the victim revenge; and
(g) restitution, that is, the objective of compensating the victim or family of the victim of
the offence.
PRELIMINARY POINTS ON SENTENCE
• The courts sentence must be pronounced in open court Ss 36(4) CFRN, 281 ACJL
Lagos, 315 ACJA, 316 ACJL Kano
281
• It must also be pronounced in the presence of convict Asakitipi v State (1993); Ss. 352
(5) ACJA; 281 ACJL, 352 (5) ACJL Kano.
• The sentence of the court must be the one prescribed for the offence in the law creating it
Ekpo v State (1982). In the case, the D was tried and convicted for the rape of an
underaged girl and sentenced to a “suspended sentence of three years”, this was overruled
on appeal and changed to three years as there was no suspended sentence in our laws. But
what happens to S460(1) ACJA which provides that “notwithstanding the provision of
any other law creating an offence, where the court sees reason, the court may order that
the sentence it imposed on the convict be, with or without conditions, suspended, in
which case, the convict shall not be required to serve the sentence in accordance with the
conditions of the suspension.” The equivalent is in S442 ACJL Kano but non in Lagos.
• If the court omits to pronounce sentence, the error may be corrected on appeal as an
irregularity Azabada v State (2014).
• The court is not bound to impose the maximum sentence on the accused except it is a
mandatory punishment Olanipekun v State (1979) in the case the TC convicted and
sentenced the D to 7 years imprisonment for dangerous driving being the maximum
sentence for the offence and held that he lacked the jurisdiction to alter it but on appeal, it
was held that he could give less but not more than maximum sentence provided by law as
contained in S17(1) of the Interpretation Act to the effect that maximum sentence
means that it would not be exceeded not that less cannot be issued; Isaac Slap v AGF
(1968).
• Where it is not a mandatory punishment the court may impose a punishment below the
maximum Slap AGF (1968); S17 Interpretation Act.
• No discretion to go below the minimum penalty Dada v Board of Custom & Excise
(1982); S 320(5) ACJL.
• Where penalty is a term of imprisonment without an option of fine, upon conviction
the court lacks the power to impose option of fine in lieu of imprisonment Dada v Board
of Custom & Excise (1982).
• Where the law provides penalty and is silent on the option of fine, the court can exercise
discretion to impose fine in lieu of penalty 316(1) ACJL.
• Sentence to be pronounced by the court for every count of offence which an accused is
convicted Oyediran v Republic (1966).
• The sentence may also take effect retrospectively. Note that the Supreme Court held in
Ayomitan v State (2018) LPELR-45700(CA) that commencement date of a sentence is
from the date of conviction.
282
The discretion of the court is subject to the provision of the court in sentencing:
Mandatory Sentence: this is where the law expressly provides the exact punishment wherein
the court lacks any discretion e.g., capital punishment for armed robbery under S2(1) of the
Armed Robbery & Firearms (special provisions) Act.
Minimum Penalty: this is where it provides for what it must not go below. Where it is term of
imprisonment, then the court can’t impose option of fine S316(5) ACJL Lagos. In Dada v
Board of Customs & Excise, the prison term was up to 5 years without an option of fine but the
D was sentenced to 2 years without an option of fine and he appealed that he ought to have been
given an option of fine but the appeal was dismissed.
Maximum Sentence: this is where the law provides for the highest or biggest term and
according to S17(1) of Interpretation Act, it simply means that the court cannot exceed such
term but can give less. The SC also held that in maximum penalty, the has discretion to give a
lesser punishment Amoshima v The State. S416(d) ACJA provides that “a trial court shall not
pass the maximum sentence on a first offender.”
In Slap v. The A. G. Federation; the punishment Section provides that an offender shall be
liable to a fine of 6 times the value of the goods. The Magistrate imposed a fine of 3 times the
value of the goods involved. It was held on appeal that the Magistrate had discretion as to the
punishment to give to the D and if properly exercised, the appellate Court could not disturb such
discretion.
CLASSIFICATION OF SENTENCE
1. Custodial Sentence;
2. Non custodial Sentence.
TYPES OF SENTENCE/PUNISHEMENT
1. Death sentence
2. Imprisonment
3. Fine
4. Caning
5. Haddi-lashing
6. Forfeiture
7. Compensation
8. Deportation
283
Others:
9. Community service
10. Binding over order
11. Conditional discharge
12. Payment of costs
13. Detention in a reformatory
14. Restitution
15. Probation
DEATH SENTENCE
Capital offences attracts death penalty. The Supreme Court has held that death sentence is legal
in Nigeria Kalu v State (1998). The court has no discretion in capital punishment and allocutus
is almost a waste of time.
MODE OF EXECUTION OF DEATH SENTENCE
Armed robbery is via firing squad S1(2) (a)&(b) of Robbery & Fire Arms (special
Provisions) Act 1984.
S402(1) ACJA provides that “punishment of death is inflicted by hanging the convict by the
neck till he is dead or by lethal injection.”
S301(1) ACJL Lagos provides “punishment of death is inflicted by hanging the offender by
the neck till he be dead.”
S396 ACJL Kano provides that “the punishment of death shall be inflicted by a method
pronounced by the court”
MODE OF PRONOUNCEMENT
S402(2) ACJA provides that “Sentence of death shall be pronounced by the court in the
following form: “The sentence of the court upon you is that you be hanged by the neck until
you are dead or by lethal injection.””
S301(2) ACJL Lagos provides “Sentence of death shall be pronounced in the following form:
“The sentence of the Court upon you is that you be hanged by the neck until you be dead
and may God have mercy on your soul””
No equivalent provision in ACJL Kano.

284
EFFECT OF FAILURE TO COMPLY WITH THE FORMAT
Failure to comply with the format of pronouncing a death sentence is not fatal to the trial. It is
regarded as a clerical error rectifiable by the trial judge or the appeal court Gano v The State
(1969), Olowofoyeku v The State (1984).
DRESSING OF A JUDGE WHEN DELIVERING A DEATH SENTENCE
When pronouncing a sentence of death, the Judge is robed in red gown and black Barret.
PERSONS EXEMPTED FROM BEING SENTENCED TO DEATH:
Pregnant Woman: The relevant status of the woman is her status at the time of conviction not
commission of the offence. If she is found guilty of a Capital Offence, she shall be sentenced to
life imprisonment S 302(2) ACJL. It can also be suspended until after birth and the child weaned
S404 ACJA, S 398 ACJL Kano.
Child/Young Person: capital punishment shall not be pronounced on them, S405 ACJA, 302(3)
ACJL Lagos, ACJL Kano is silent.
SENTENCE OF DEATH AND PREGNANT WOMAN UNDER ACJA and ACJL Kano
S404 ACJA provides; “where a woman found guilty of a capital offence is pregnant, the
sentence of death shall be passed on her but its execution shall be suspended until the baby is
delivered and weaned.” This is ipsissima verba with S 398 ACJL Kano.
S415(4) ACJA also ipsissima verba with S408(4) ACJL Kano and applies mutatis mutandis
vis-à-vis the sections in the provisions, provides; “where in the proceedings under this section,
the court finds the woman in question to be pregnant, the court shall sentence her to death
subject to the provision of section 404 of this Act.”
SENTENCE OF DEATH AND PREGNANT WOMAN UNDER ACJL Lagos
S302(2) ACJL Lagos provides; “where a woman found guilty of a capital offence, is in
accordance with the provisions of section 315 is found to be pregnant, the sentence of death
shall not be passed on her but shall be substituted with sentence to imprisonment for life.”
SENTENCE OF DEATH AND PREGNANT WOMAN UNDER CHILD’S RIGHT ACT
• Pregnant woman or nursing mother shall not be sentenced to death S221 (2) CRA
• Court to consider non-institutional sentence S221(3) CRA.
285
• To be kept at a Special Mothers Centre S221(4) CRA.

• Pregnant woman and child not to stay more than 6yrs at SMC S221(5) CRA.
• Mother may be released after the child attains 6yrs or after the death of child while in
SMC S221(6) CRA.
PROCEDURE WHERE WOMAN CONVICTED OF CAPITAL OFFENCE IS ALLEGED

TO BE PREGNANT
Where a woman convicted of an offence punishable with death alleges that she is pregnant, the
court shall, before sentence is passed on her, determine the question whether or not she is
pregnant SS 415(1) ACJA, 311(1) ACJL Lagos, 408(1) ACJL Kano.
The question whether the woman is pregnant or not shall be determined by the court on such
evidence as may be presented to the court by the woman or on her behalf or by the prosecutor SS
415(2) ACJA, 311(2) ACJL Lagos, 408(2) ACJL Kano.
Where in proceedings under this section the court finds that the woman in question is not
pregnant, the court shall pronounce sentence of death upon her SS 415(3) ACJA, 311(3) ACJL
Lagos, 408(3) ACJL Kano.
An appeal shall lie to the Court of Appeal against such finding and the Court if satisfied that the
finding should be set aside, shall quash the sentence passed on her and substitute such with a
sentence of imprisonment for life S311(4) ACJL Lagos.
YOUNG PERSON
A person who has attained the age of 14 but has not attained 18yrs S 2 CYPL Lagos.
A young person who has not attained the age of 18 at the time of committing a capital offence
shall not be sentenced to death Ss 302(3) ACJL, S405 ACJA.
Young person to be detained at the pleasure of Pres./Gov Ss 302(3) ACJL; Guabadia v The
State (2004). Sentenced to life imprisonment or other term as the court may deem fit S405
ACJA.
He may be discharged during such pleasure by the president/governor on licence S330(1)(2)

ACJL Lagos.
Where there is doubt as to whether the defendant or convict has attained the age of 18, the
court should resolve the doubt in his favour; S416 (2) (h) ACJA, 409(2)(h) ACJL Kano
286
In Modupe v The State (1988), the SC held that “…if the evidence on record shows that at the
time the offence was committed, an accused charged with capital offence has not attained the age
of 17 (now 18) years, it will be wrong for any Court not only to sentence him to death but also to
even pronounce or record such sentence.”
DEATH SENTENCE & PREROGATIVE OF MERCY SS 175 & 212 CFRN
Upon imposition of death sentence on a convict, the court shall notify the AGF/AGS/Minister
by:
▪ forwarding a CTC of the record of proceedings.

▪ A certificate stating that death sentence has been passed on the person named therein.
▪ A written and signed report containing his observations and recommendations relating to
the trial Ss 307 ACJL Lagos; 312, 407-410 ACJA.
A person sentenced to death may appeal to president/gov for prerogative of mercy through his
legal practitioner or officer in charge of the Prison in which he is confined to the Committee on
Prerogative of Mercy SS 409 ACJA, 308 ACJL Lagos, 402 ACJL Kano.
The AGF/AGS will send the report to the council’s responsible for exercise of prerogative of
mercy to consider the suitability of the convict’s case for mercy. Based on the councils report the
AGF/AGS will recommend as follows:
RECOMMENDATION OF AGF & AGS
1. That the convict be pardoned.

2. Sentence be commuted to life imprisonment
3. Sentence commuted to any specific period
4. Sentence to be carried out.
WHERE TO APPLY FOR MERCY
The Federal Advisory council on prerogative of mercy is the council of state Ss 175(2) &
212(2) CFRN and at state level same, like committee on prerogative of mercy, Lagos state.
Application for mercy made to Supreme Court was refused in Okeke v State (2003).
EXECUTION OF DEATH SENTENCE
Sentence of death shall not be carried out unless confirmed by the President or the Governor.
Appeal against death sentence acts as a stay Bello v A.G Oyo State (1986).
287
IMPRISONMEMT S416 ACJA, 312 ACJL Lagos, 309 ACJL Kano.
This is a form of custodial sentence. The convict is to be remanded in prison until the expiration
of the term of imprisonment. The court may order that the imprisonment shall be with or
without hard labour.
Imprisonment shall be with labour unless otherwise ordered S312 ACJL Lagos.
The period spent in prison custody awaiting or undergoing trial shall be considered and
computed in sentencing a convict; S416 (2) (e) ACJA, 409(2)(e) ACJL Kano.
Trial court shall conduct an inquiry into the convict’s antecedents before sentencing; S416 (2) (f)
ACJA, 409(2)(f) ACJL Kano.
An appeal court may not increase the sentence of a lower court beyond the maximum number of
years the lower court has power to impose; S416 (2) (f) ACJA, 409(2)(f) ACJL Kano.
The term of imprisonment prescribed as punishment for the offence is the maximum. Where the
law states that a term of imprisonment is the minimum, the sentence becomes mandatory and
fine cannot be imposed S 316(5) ACJL Lagos.
Sentence may run concurrently or consecutively S314 ACJL; 418 ACJA.
CUNCURRENT AND CONSECUTIVE SENTENCE
A court that pronounces more than one sentence in a trial may direct whether or not the sentence
will run concurrently or consecutively SS 418 ACJA, 314 ACJL Lagos, 410 ACJL Kano.
However, where consecutive order is made, the prison term must not exceed the original
jurisdiction of the court by four years. Although, none of the above provisions contains anything
on concurrent sentence.
If sentence is to run concurrently, convict will serve the highest of all the terms. If the sentence
is to run consecutively, convict will serve aggregate of all terms.
A defendant may not be given consecutive sentences for two or more offences committed in the
same transaction; S416 (2) (i) ACJA, 409(2)(i) ACJL Kano
LIMITATION ON IMPOSITION OF TERMS
Note the power of the HC S272 CFRN and MC to impose punishment in the South and North.
For Lagos it must not exceed 14yrs S314 ACJL and S.29 (5) MCL 2009 Lagos.
288
WHEN IMPRISONMENT STARTS TO RUN Ss 315 ACJL Lagos; 419 ACJA, 411 ACJL
Kano.
S419 ACJA; “a sentence of imprisonment takes effect from and includes the whole of the day of
the date on which it was pronounced.”
SENTENCE OF FINE SS 318 ACJL Lagos; 420 ACJA; 412 ACJL Kano 74 PC.
It is a pecuniary punishment. Entails the payment of money as punishment, where no sum is

specified, at the discretion of the court. It may be in addition to imprisonment or independent.
DEFAULT IN PAYMENT OF FINE
Where a convict defaults in the payment of fine as punishment, he will be liable for
imprisonment for a certain term S 421 ACJL Lagos, 428 ACJA, 420 ACJL Kano.
Where sentenced to imprisonment & fine and he defaults in payment of fine, he will be liable for
additional term of imprisonment S 421 ACJL Lagos, 428 ACJA, 420 ACJL Kano.
Court must have regard to the means of the convict Ss 320 ACJL Lagos, 427(1) ACJA. Convict
may appeal on grounds of excessive fine imposed on him Goke v COP (1957).
DESTINATION OF THE PROCEEDS OF FINE
The proceeds of the fine is payable to the victim/informant to offset expenses, payment of any
court fees and remainder goes to general revenue S 427 ACJA, 320 ACJL Lagos, 419 ACJL
Kano.
HADDI LASHING SS68(2) PC, 430 ACJL Kano but not in either ACJA or ACJL Lagos.
S430 ACJL Kano execution of sentence of Haddi lashing provides;
(1) where the offender is sentenced to a Haddi lashing, the sentence shall be executed at such
time as the court may direct and the sentence shall be inflicted with such instrument and such
manner and place as ordered
(2) Nothing herein contained shall be deemed to authorise the infliction of a Haddi lashing upon
any person other then a Muslim and in accordance with the provisions of the Penal Code.
CANING S77 PC, 431 ACJL Kano but not in either ACJA or ACJL Lagos.
289
ACJL Kano S431 (1); Where a D is sentenced to caning, the sentence shall be executed at such
place and time as the court may direct.
(2) No sentence of caning shall be executed by instalments.
(3) No sentence of caning shall be inflicted on
a. females
b. males sentenced to death; or
c. males whom the court considers to be more than forty-five years of age.
(4) The sentence shall be inflicted with an ordinary horse whip
S432 Stay Execution of Sentence of Caning
(1) Where before the execution of sentence of caning, it appears to the registrar of the court that
the offender is not in a fit state of health to undergo the sentence, he shall notify the court which
passed the sentence and the court may either:
(a) after taking a medical opinion, again order the execution of the sentence; or
(b) substitute for it any other sentence which it could have passed at the trial
(2) Where during the execution of caning, it appears to the registrar of the court that the offender
is not in a fit state of health to undergo the remainder of the sentence, the caning shall
immediately be stopped and the remainder of the sentence be remitted.
(3) In either case, the court shall be informed of the stay of execution.
Section 433(1) provides for right of appeal as the convict shall be given 15 days to appeal the
sentence before carrying it out. Subsection (2) states that where he is sentenced to caning alone,
upon fulfilling bail conditions, he shall be released within the 15 days of time to appeal and also
time pending determination of the appeal. Subsection (3) provides that where after the
sentencing, D fulfils conditions satisfying the court that he’ll make himself available for caning,
he’ll be released.
NON-CUSTODIAL SENTENCE, See the United Nations Standard Minimum Rules for
Non-Custodial Measures (The Tokyo Rules) 1990.
290
TYPES OF NON-CUSTODIAL SENTENCE
• Probation Ss.341 ACJL Lagos; 453-458 ACJA

• Restitution of Stolen Property S297 & 341(3) ACJL Lagos
• Forfeiture Order Ss 290 ACJL Lagos; 68(1)(b) PC.
• Payment of Damage for Injury or Compensation Ss.285, 341(2) ACJL Lagos.
• Suspended Sentence S.460 ACJA.
• Community Service Ss.347 ACJL; 460 (2) ACJA.
OTHER FORMS OF SENTENCE
• Confinement at a Rehabilitation & Correctional Centre Ss 348 ACJL; 68(1)(d) PC.

• Deportation Ss 331-339 ACJL; 439-451 ACJA.
Note the conditions for parole to be approved: S 468 ACJA.
RESTITUTION AND COMPENSATION S 321 ACJA
While fines go to the State, restitution or compensation is money paid by the defendant to the
victim or victim’s estate or to a state restitution fund.
Offenders may be required to return or replace stolen or damaged property, to compensate

victims for physical injuries or for medical and psychological treatment costs, or to pay funeral
and other costs where a victim dies.
The defendant may be ordered to pay restitution either as an alternative to imprisonment or as

just one part of the sentence, in addition to prison, community service, and/or probation.
PROBATION S 453 cf 455 ACJA
Probation is a post-conviction order whereby a convict is discharged or released from

confinement on conditions and under court supervision. If the probationer violates a condition of
probation, the court may revoke the probation and proceed to sentence the probationer to
imprisonment. Usually, the conditions for probation are at the discretion of the court.
WHEN TO MAKE PROBATION ORDER
Under S 454 ACJA, the court may make a probation order only where the offence against the
defendant has been proved but it considers that it is expedient to release the defendant on
probation having regard to the following considerations:
291
THINGS TO CONSIDER
A. The character, antecedents, age, health or mental condition of the defendant.

B. The trivial nature of the offence; and
C. The extenuating circumstances under which the offence was committed.
PROBATION DURATION
By section 454 (2)(b) ACJA the probation period shall not exceed 3 years.
The conditions for probation are stipulated in S55 ACJA to include:
• C be under supervision of a probation officer, a person of same sex

• Do what society consider good behaviour like avoiding intoxication or other act that may
make him commit the offence again
• The court shall furnish the C in simple written terms what the probation conditions are
PAROLE S468 ACJA
Parole is a conditional release from incarceration (prison sentence) during which a prisoner
promises to abide by certain conditions and submits to the supervision of a parole officer (a
supervisor).
Any violation of those conditions would result in the return of the person to prison. A parole can
only be ordered on the basis of a report by the Comptroller-General of Prisons to the court
recommending the prisoner on the grounds that the prisoner is of good behaviour;
The prisoner must have served at least one-third of his prison term if he is sentenced to at least
15years or life imprisonment. The court may release the prisoner with or without condition.
SUSPENDED SENTENCE S460 (1) ACJA, 442(1) ACJL Kano
Suspended sentence was previously assumed to be alien to our criminal justice system State v
Audu (1972); Ekpo v State (1982); See S315 ACJL Lagos.
A suspended sentence involves the judge imposing a prison sentence but suspending it on certain
conditions or no conditions at all. This means that the offender is not sent to prison if he/she does
not break the conditions.
292
CANCELLATION OF SUSPENDED SENTENCE
If the offender breaks a condition during the period for which the sentence is suspended, he/she
will have to serve the term of imprisonment originally imposed.
RESTRICTION ON IMPOSITION OF SUSPENDED SENTENCE AND COMMUNITY

SERVICE
S460 (3) ACJA prohibits order for suspended sentence for an offence involving;
➢ the use of arms or offensive weapon,

➢ sexual offence or
➢ an offence which the punishment exceeds 3 years imprisonment.
COMMUNITY SERVICE ORDER S460(2) ACJA.
This is a non-custodial sentence. The convict is sentenced to perform certain community service
subject to supervision. Where he fails, he will then be given a custodial sentence.
COMMUNITY SERVICE DURATION
The service is to be performed for a period of not more than 6 months S462 (1) ACJA. The
convict not to work for more than 5 hours a day S462 (1) ACJA.
COMMUNITY SERVICE AND SENTENCE OF IMPRISONMENT
A convict sentenced to community service shall not also be sentenced to a term of imprisonment.
It is an alternative to a term of imprisonment. The convict may however be sentenced to term of
imprisonment upon default in performing the community service S 461 (7) ACJA.
DEPORTATION Ss 439 ACJA; 331 ACJL Lagos, Shugaba Darman v Miniter of Internal
Affairs.
Deportation is a legal expulsion or removal from Nigeria of a person not being a citizen of
Nigeria S439 ACJA. It is one of the alternatives to imprisonment provided for under the ACJA.
Under section 440 ACJA, where a defendant is convicted of an offence punishable by

imprisonment without option of fine, the court may, in addition to or instead of any other
punishment, make recommendation to the Minister of Interior that the convict be deported,
where it is in the interest of peace, order and good governance. It applies only to foreigners.
293
RESTORATIVE JUSTICE AND RETRIBUTORY JUSTICE
Restorative justice is reformatory and rehabilitatory in nature. It emphasises the remedy available
to the victim and community as it is restitutory. It encourages the reintegration of the offender to
the community. It is also reconciliatory in nature.
294
WEEK 18 – APPEALS 1
OUTCOMES
1. Explain the basis of Appeal and appealable decisions.

2. Explain the appeal procedure from the magistrate court up to the Supreme Court.
3. Identify the power of a court to hear appeals and a right of a person to appeal in a
criminal matter.
4. Explain the effect of the Court of Appeal and Supreme Court Practice Directions on
criminal appeals.
CONTENTS
1. What is an appealable decision and who may appeal against a decision of a court in a
criminal matter?
2. How is the appeal process commenced? – Notice and Grounds of Appeal (this would
involve the procedure in each court with appellate jurisdiction)
3. Time within which to appeal from the decision of a court and effect of failure to appeal
within time. (Application for leave to appeal out of time may be discussed here).
4. The Court of Appeal and Supreme Court Practice Directions on criminal appeals.
states, ACJL, Lagos, 2011, the ACJA, 2015, the Constitution and the Court of Appeal and
Supreme Court Practice Directions on criminal appeals.

2. Students are grouped to discuss the right of a person to appeal in a criminal matter as well
as the power of the court to hear appeals - 45 minutes.
15 minutes break
3. Students are grouped to discuss the appeal procedure from the magistrate court up to the
Supreme Court including the preparation of notice and grounds of appeal – 60 minutes.
5. Students are grouped to discuss the Court of Appeal and Supreme Court Practice
Directions on criminal appeals,
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MEANING
It is an invitation to a higher court to find whether on proper consideration of the facts placed
before a lower court and the applicable law, the lower court arrived at a correct decision
Aredoyin vs. Arowolo (1989) 4 NWLR. (pt. 114) p.172. Eweka vs. S.C.O.A. (2000) 3 s.c. p. 21
at 31. Appeal usually stems from the dissatisfaction of a party to the decision of a lower court
against him.
RIGHT OF APPEAL: S 243 CFRN
Right of appeal is statutory. There is no general right of appeal and a person can only appeal if
there is a statute giving him a right to appeal. A right of appeal is created by statute and where
there is no provision for appeal in the statute creating rights of appeals, no such right exist
Nunku v. The Police; R. v. Grantham (1969), Boardman v. The Sokoto N. A. (1965); Ugwu
v. The Attorney-General East Central State (1975).
In Nigeria, the right of appeal, the jurisdiction of the court to hear appeal, the procedure of
appeal and the procedure of hearing the appeal is governed by the CFRN and other statutes
including subsidiary legislations and the rules of courts Adigun & ors. v A.G. Oyo State (1987)
2 N.W.L.R. (pt. 56) p. 197.
WHO MAY APPEAL
The following are those entitled to appeal:
• A person convicted
• The prosecutor
Can a person who pleaded guilty appeal against conviction and or sentence? Essien v. The
King 13 W.A.C.A. 6; Stephenson v. The Police (1966) 2 ANLR 261. Upon a plea of guilty, the
prosecution should go ahead and present all the facts constituting the offence and the accused
must also admit them. A conviction on a plea of guilty without compliance with this procedure
is wrong. Consequently, an accused can appeal on this.
A person who is neither the prosecutor nor the accused cannot appeal either as of right, or with
leave Akinbiyi v. Adelabu (1965) 1 F. S.C.45. See also S 485 (2) & (3) ACJA as it relates to
appeals from Magistrate in FCT to FCT High Court Abuja.
Note: Estate/heirs & personal representatives of a deceased appellant can continue with appeal
in cases punishable with fine R. vs. Roni (1955) 29 p. 57.; Re: Abdullahi (2018) 14 N.W.L.R.
(Part 1639) at 290 – 292.
296
TYPES OF APPEAL
1. Appeal as of right Ss 241(1), 233(2) CFRN

2. Appeal with leave Ss 241(1), 233(2) CFRN
3. Interlocutory appeal Nwosu v State (1990) 7 N.W.L.R. (pt. 162) p. 344
4. Appeal against final judgement
5. Appeal from the Magistrate court to the High court
INTERLOCUTORY PROCEEDINGS SIMILAR TO APPEAL
(1) Case Stated: - SS 295 CFRN, 76 MCL 2009 Lagos.
Is a reference of a question of law, which depends on the interpretation or application of the

constitution, to a higher court for an opinion. A case may be stated to a higher court for its
opinion before or after a judgment at the instance of the A.G., parties or by the court suo moto
FRN v Ifegwu, R v Eze. A case stated is not an appeal.
A case may be stated to a higher court in the following circumstances:
1. After judgment, the attorney general may within six months of a judgment direct the
magistrate to state a case thereon for the decision of the High court S76 MCL Lagos,
2009
2. On the application of either party to a proceeding S295 CFRN
3. When the court or a magistrate so directs suo motu S78 MCL Lagos, 2009.
Conditions Precedent for Case Stated by the SC in FRN v Ifegwu:
1. The question must be as to the interpretation or application of the constitution.

2. The question must arise in the proceedings in connection with an issue before the court
making the reference.
3. The matter for reference must involve a substantial question of law.
4. The court making the reference of the higher court is not required to and must not give an
opinion of law on the questions.
Contents of a case stated S77 MCL Lagos, 2009.
(a) charge, summons, information or complaints;

(b) facts found by the Magistrate to be admitted or proved;
(c) submission of law made by or on behalf of the complainant during the trial or inquiry;
(d) submission of law made by or on behalf of the accused during the trial or inquiry;
(e) the finding of, and in case of conviction, the sentence imposed by the Magistrate; and
297
(f) question of law which the Attorney ‐ General requires to be submitted for the opinion of
the High Court.
Duty of the Court When a Case Stated Application is made
When the application for case stated is made by either of the parties, the trial court is under a
duty to state a case for the superior court. It is immaterial that the trial court is of the opinion that
there is no substantial question of law or that it had earlier pronounced its decision on the
question of law - S 295 (1) (2) & (3) CFRN; African Newspapers of Nigeria Ltd v. FRN.
Note also that an appeal is distinguishable from applications for prerogative orders such as an
order of Habeas corpus, Certiorari and an order of Mandamus.
(2) PREROGATIVE WRITS
Are issued by the court in the course of proceedings when there is direct interference with rights
or property of accused. They are not issued as of right. a person seeking for the issuance must
show violation of personal liberty or property rights by proceedings or order of court. It is
applied for before or after judgment State v Falade.
TYPES OF PREROGATIVE WRITS
(1) Habeas corpus- it is applied for to order release from custody or procure attendance to
court of person unlawfully detained Gwaram v Supt. of Prisons.
(2) Prohibition- used by the High court in supervisory role over Magistrates court The State
v. Chief Magistrate Aboh – Mbaise Exparte Onukwe.
(3) Mandamus- opposite of prohibition. it is issued to compel the performance of a duty
Fawehinmi v. Akilu. it was held that the order of mandamus could be issued to compel
the AG Lagos to issue a fiat to a private prosecutor to prosecute the accused persons.
(4) Certiorari – by this, high court may quash proceedings or order of lower court where it
acted without jurisdiction or there is irregularity in its proceedings State v Falade, the
HC issued a writ of certiorari to quash the conviction of the accused persons because the
trial magistrate convicted them without hearing their defence.
APPEAL FROM THE MC THE HC SS 68, 68 & 69 MCL Lagos, 485 ACJA, 461 ACJL
Kano.
S 272(2) CFRN seizes the HC with the requisite jurisdiction.
May be commenced:
298
• by filing written or oral Notice of Appeal at the registry of the MC within 30 days of
judgment if the sentence is imprisonment.
• within 15 days of judgment if the sentence is caning.
• 14 days from the date of the delivery of the interlocutory decision.
• where the appeal is to be lodged out of the prescribe 30 days period, the appellant is to
seek leave of court to appeal out of time. The application is made by Motion on Notice
supported by an affidavit exhibiting the proposed notice of appeal and grounds of appeal.
The affidavit must also state the reasons for failure to appeal within time.
Note:
• Registry of the court must reduce oral notice of appeal into writing.
• Notice of appeal can also be given to the officer in charge of prison.
• A written notice can be signed by the appellant or his counsel.
GROUNDS OF THE APPEAL
According to S67 MCL Lagos, 2009, prosecution may appeal as of right in any of the following
circumstances:
(a) Where an accused person has been acquitted or an order of dismissal made by a magistrate
from the acquittal or dismissal on the ground that it is erroneous in law or that the
proceeding or any part thereof were in excess of the jurisdiction of the magistrate.
(b) Where a person has been convicted by a magistrate of an offence in respect of which the
magistrate is required by any law to impose a minimum sentence of or make any order
prescribed by that or any other law on the ground that the Magistrate has failed to impose
such sentence or make such order.
S68 MCL Lagos, 2009 provides that “any person convicted of a criminal offence by a
Magistrate having Convicted Person. jurisdiction to try the offence may appeal to the High Court
before the expiration of thirty (30) days after the judgement was delivered or Order of the
Magistrate was given as stated in Section 69 of this Law.”
A convicted person may appeal on any of the following grounds as provided by O2 R9(1) OF
HC (Appeal Rules), S. 485(9) ACJA:
(a) that the lower court has no jurisdiction in the case;

(b) that the lower court has exceeded its jurisdiction in the case;
(c) that the decision has been obtained by fraud;
299
(d) that the case has already been heard or tried and decided by or forms the subject
of a hearing or trial pending before a competent court;
(e) that admissible evidence has been rejected, or inadmissible evidence has been
admitted by the lower court and that in the latter case there is no sufficient
admissible evidence to sustain the decision after rejecting such inadmissible
evidence;
(f) that the decision is unreasonable or cannot be supported having regard to the
evidence;
(g) that the decision is erroneous in point of law;
(h) that some other specific illegality, not mentioned and substantially affecting the
merits of the case, has been committed in the course of the proceedings in the
case; or
(i) that the sentence passed on conviction is excessive or in-adequate, unless the
sentence is one fixed by law.
Order 10 Rule 9 of the High court of Lagos Appeal Rules provides additional grounds as
follows:
(a) Magistrate was personally interested in case.

(b) Magistrate acted corruptly or maliciously in the case.
Appellant must state the nature of error, irregularity or illegality committed R v. Mensah.
Additional grounds may subsequently be filed, with leave. It is advisable to state in the original
notice that additional grounds of appeal will be filed Esoh v. IGP; Araba v. COP.
Appellant may also amend defects in grounds, with leave, by way of Motion on notice, only if
time for filing original has lapsed.
Issue of weight of evidence not ground in criminal appeals Enitan & Ors. v. State.
PAYMENT OF FEES SS 486 ACJA, 463 ACJL Kano.
If not a public officer, must pay fees for filing the appeal & such amount as is deemed sufficient
by court to produce sufficient number of certified typed written copies of the record of
proceedings to supply each respondent & court.
State or public officers in official capacity don’t pay fees SS 488 ACJA, 465 ACJL Kano.
COMPUTATION OF TIME TO APPEAL
300
Computation of time commences from the date when appellant had notice of the judgment of the
court, not necessarily date judgment was actually delivered Ohuka v. State.
STAY OF PROCEEDINGS OR EXECUTION
Appeal does not operate as a stay, except in death sentence Bello v. A-G Oyo state.
PRESENTATION OF APPEAL AT HIGH COURT
Counsel or appellant shall orally argue appeal at the hearing of appeals from magistrate courts.
For convenience, counsel may merge grounds for presentation and may abandon irrelevant or
unhelpful grounds. A respondent shall reply. After the respondent’s reply, the Appellant may
further reply on points made by respondent.
NOTE: At present in practice, appeals at the HC are argued through the filing of a written
address. On the date fixed for hearing, parties merely adopt their respective written addresses and
may be allowed to adumbrate on certain salient issues.
After hearing appeal against conviction & sentence, court may:
1. Affirm conviction & sentence.

2. Quash conviction & sentence, Acquit or Order re-trial.
3. Alter or maintain the finding, Alter or maintain sentence
4. With or without altering finding, reducing or increasing sentence, alter the nature of the
sentence.
5. Annul conviction & substitute it special finding of insanity at the time of the act or
omission.
Note: An appeal court can’t sentence above jurisdiction of trial court Nworie v. Police.
HC may dismiss appeal summarily after perusing all processes & hearing appellant, it need not
give detailed judgment S36 High Court Law of Lagos State, 2004.
Additional evidence may be taken in the interest of justice Abiola v. Police. But additional
evidence will not be allowed if that will lead to rehearing a case R v Oton.
Even where ground succeeds, court may dismiss the appeal if it feels that no substantial
miscarriage of justice has occurred R v. Ijeoma; Edun v Police; R v. Accida.
COMMENCEMENT OF APPEAL AT THE COURT OF APPEAL SS 241 & 242 CFRN
301
By giving Notice of Appeal to the Registrar of the lower court within 90 days after the final
judgment S 24(2) Court of appeal Act.
Appeal to be filed within 14 days if interlocutory (civil cause or matter) S 24(2) CAA.
A person appealing for leave for extension of time may be granted extra 15 days S24(3) CAA.
Notice of appeal shall be signed by the appellant or by his legal representative O17 r5(1) CA
Rules, 2021, a person that can write, his mark will suffice O17 r5(4) CAR, 2021 appeal by a
corporation can be signed by the secretary, manager or counsel of the corporation O17 r5(6)
CAR, 2021.
None compliance may not be fatal to an appeal. If the intending appellant has shown good and
substantial cause and exhibited a genuine desire to appeal, the court may, in the interest of justice
entertain the appeal O.17 R5(2) CAR, 2021, Ikechukwu v F.R.N. (2015) 3 SCM. p. 61.;
Idegwu v The State (2015) N.W.L.R. (Part 1455) P. 286 RATIO 9.
TRANSMISSION OF RECORDS
The Registerer of the lower court shall forward the record of appeal to the registry of the Court
of appeal within sixty days from the date of filing the Notice of Appeal. The registered must do
so and unlike in civil appeal, the appellant has no duty to serve record O.17 R8(2) CAR, 2021.
Record of appeal (hard and electronic) to be forwarded to the parties O17 R7(2) CAR, 2021.
FILING OF BRIEF OF ARGUMENT
Appellant must file brief of argument within 45 days of the receipt of the record of appeal O.19
R.2, CAR, 2021.
Respondent must file respondent brief within 30 days of the receipt of record O.19 R.4 CAR,
2021
If there is need for reply, appellant must file reply brief within 14 days after service of the
respondent’s brief O.19 R.5 CAR, 2021.
All parties whose interests are identical or joint, shall file joint briefs and separate briefs may be
filed only by those parties whose interests are separate or are in conflict O. 19 R.6 CAR., 20121.
Filing fees shall be paid except in appeal against death sentence or where the appellant receives
legal aid not provided for in CAR, 2021
302
FAST TRACT CASES
Order 1 CA (Fast Track) Practice Directions, 2021 provides that; fast tract appeal means any
of the following;
• Debt Appeals
• Tax matters
• Corruption
• Human Trafficking
• Kidnapping
• Money laundering
• Rape
• Terrorism
• Appeals by or against such national human rights, intelligence, law enforcement,
prosecutorial or security agencies such as the EFCC, ICPC, NHRC, the SSS etc.
Order 8 Rules 3-7 CA (Fast Track) Practice Directions, 2021 are to the effect that:
• In these cases, appellant must file brief within 14 days of the receipt of record.
• Respondent must file respondent brief within 10 days of the receipt of appellant brief.
• If there is need for reply, the appellant must file his reply within 5 days of the receipt of
respondents brief of argument.
EFFECT OF FAILURE TO FILE BRIEF WITHIN TIME O. 19 R10 CAR., 20121
If the appellant fails to file brief within time or within the extended time for filing the court may
suo motu or on the application of the respondent, dismiss the appeal for want of diligent
prosecution but if the respondent fails, the court will having confirmed that he’s duly served
proceed to hear the matter without him.
If the respondent fails to file respondent brief within time or within an extended time for filing,
he will not be allowed to make oral argument at the hearing of the appeal. Note: his failure here
does not necessarily entitle appellant to judgment.
If appellant fails to file reply to respondent brief within time, he will be deemed to have
conceded to any new point raised by the respondent’s brief.
CONSTITUTION/ HEARING OF APPEAL AT COURT OF APPEAL
303
Court must be properly constituted in terms of numbers and qualification, otherwise decisions
will be void Ogbunyinya v. Okudo.
In an appeal from MC to the HC, an Appeal is heard by at least 1 judge. No maximum is

stipulated by law. S.273 CFRN. However, The High Courts in the North, usually sits with 2
judges. The Lagos HC sits with 3 judges to hear an appeal from a MC.
HC & FHC to CA, not less than 3 S.247 CFRN.
CA to SC, not less than 5, but appeal is entertained by 7 if:
• Exercising original jurisdiction in dispute between fed. & and a state or between states.
• Required to determine the interpretation or application of the Constitution.
• Required to determine whether provision of the Fundamental human right has been, is
being or is likely to be contravened in relation to any person S234 CFRN.
O19 r9 CAR., 2021 on oral argument is to the effect that;
Hearing of appeal by the Court of Appeal is done after briefs have been exchanged between the
parties and hearing notice served on the parties by the registrar of the court of appeal.
On the date of hearing, parties adopt their respective briefs only but each is allowed 15 minutes
to adumbrate on the points appearing on his brief.
Where a party does not appear at the hearing after filing his brief of argument, the court is
entitled to treat the appeal as duly argued.
JUDGEMENT O23 CAR, 2021
Judgment of the court shall be delivered in open court either on the hearing of the appeal or at
any subsequent time of which notice shall be given to the parties by the registrar.
When judgment is reserved and notice given, counsel or his junior must appear, otherwise he
may be guilty of contempt O23 R 1 & 2 CAR, 2021.
APPEAL FROM C.A. TO S.C S27(2)(b) SCA, O9 SCR
Is done by filing notice of appeal within 30 days of judgment of the court of appeal S27(2)(b)
SCA, O.9 R.3(1) SCR.
304
But extension of time may be granted on application upon good reason being shown for delay SS
31(4) & 27(4) SCA.
Record of appeal shall be compiled by the registrar of the CA except where the appeal is:
(a) An interlocutory appeal

(b) Appeal against summary order or judgment of the C.A.
(c) Where the liberty of a person is concerned. In these cases, record can be
compiled by the appellant.
Fees for the compilation of the record shall be assessed by the registrar of the CA and shall be
paid by the appellant within 14 days of being notified of the assessment by the registrar of the
court of appeal O.7 R.3 SCR
Notice of appeal shall be signed by the appellant himself O9 R.3 SCR
Record shall be compiled by the registrar of the C.A. within six months of filing notice of appeal
O7 R4(1) SCR
In line with O9 R.3 SCR, O6 R.5(1) SCR;
• Brief of argument shall be filed by the appellant within 10 weeks of the receipt of record
of appeal.
• Respondent’s brief shall be filed within 8 weeks of the receipt of appellant’s brief
• A reply brief shall be filed within 4 weeks of the receipt of respondent’s brief where
necessary.
FAST TRACK CASES:
O6 SC Practice Direction, 2014 is to the effect that;
• In the above cases, appellant’s brief shall be filed within 10 days of the receipt of record
of appeal.
• Respondent’s brief shall be filed within 7 days of the receipt of appellant’s brief
• A reply brief shall be filed within 3 days of the receipt of respondent’s brief.
HEARING OF APPEAL BY S.C.
It is done by adopting briefs of arguments. Each party is allowed one hour to adumbrate on the
points appearing on his brief. A party wanting an extension of time beyond one hour to make
305
oral submission shall apply one month to the hearing showing good reasons for the application
O6 R8 SCR.
Appellant who is on bail must be present on every day fixed for the hearing of the appeal.
Where he is absent the court may decline to hear the appeal or dismiss the same and order for his
arrest O 9 R4(5) SCR.
ORDERS WHICH MAY BE MADE ON APPEAL
• Court may uphold appeal, set aside judgment of the lower court and discharge and acquit
the appellant.
• Court may uphold the appeal, set aside the conviction and sentence but, order for re-trial.
• In an appeal against sentence, court may affirm the conviction, quash the sentence and
substitute it with a higher or lower sentence as the fact of a particular case may permits.
• Court may dismiss the appeal if lacking in merit.
306
WEEK 19. APPEALS 2
OUTCOMES
1. Draft Notice and Grounds of Appeal

2. Prepare and argue an application for bail pending appeal
3. Explain abandonment of appeal; abatement of appeal; additional grounds of appeal and
additional evidence on appeal.
4. Prepare Briefs of Argument. (Note the Court of Appeal and Supreme Court Practice
Directions on criminal appeals.)
5. Identify the orders the court may make after hearing an appeal.
CONTENTS
1. Drafting of Notice and Grounds of Appeal upon which an appellant may appeal against
the decision of a court as well as the constitution of a Court to hear appeals. (This should
be discussed in line with constitutional provisions as well as the laws and rules of the
various courts).
2. Bail pending appeal
3. Abandonment of appeal, abatement of appeal, additional grounds of appeal and
additional evidence on appeal.
4. Hearing of the Appeal. This includes filing of briefs of argument in the court of appeal
and the Supreme Court.
5. Orders that the court will make on appeal.

2. Students prepare notice and grounds of appeal for filing in the ***** Scenario depending
on who lost at the trial court ultimately - 45 minutes
3. Students make presentations of the notice and grounds of appeal prepared and filed - 20
minutes.
4. Students are grouped to prepare and argue an application for bail pending appeal based
on ******** scenario – 30 minutes
15 minutes break
5. Students as earlier grouped prepare and exchange briefs of argument to be filed at the
Court of Appeal in a matter in which appeal emanated from the High Court to that court
and arguments are made – 30 minutes.
307
6. Students are grouped to discuss the various orders a Court may make after hearing an
appeal- 10 minutes.
7. Students are grouped to discuss interlocutory or intervening issues such as application for
leave to appeal or to amend, abandonment of appeal, abatement of appeal, additional
grounds of appeal and additional evidence - 20 minutes
APPLICATION FOR EXTENSION OF TIME WITHIN WHICH TO APPEAL
• Where parties could not appeal within time, leave of court must be sought to appeal out
of time.
• The application which is by motion on notice is to be filed in the court below and must be
supported by affidavit and the proposed grounds of appeal O17 r4(1) CAR.
• The application must contain reasons why appeal could not be filed within time.
BAIL PENDING APPEAL SEE ABOVE UNDER BAIL FOR MORE INFO
• An accused who is convicted and sentenced and who intends to appeal may need to apply
for bail pending appeal SS 28(1) CAA, 31(1) SCA, Or 9 R 4(6) SCR
• The appellant must have a valid appeal to be entitled to bail pending appeal.
• Bail pending appeal is not a right. An accused who is convicted and sentenced and who
intends to appeal may need to apply for bail pending appeal.
• Appellant had already been tried in the lower court and found guilty and convicted before
this present appeal.
• Thus, the appellant can no longer be presumed innocent.
• The appellant must establish special circumstances to be entitled to bail.
WHAT CONSTITUTES SPECIAL CIRCUMSTANCES
• Where the sentence is manifestly contestable;

• Where there is need for constant consultation between the convict and counsel e.g.,
complex cases;
• Health ground Fawehinmi v. State (1990) 1 NWLR (Pt. 127) 486;
• Where convict will serve his sentence substantially before appeal is heard and concluded
Obi v. State (1992) 8 NWLR (Pt. 257) 76 at 83
• The severity of the offence – George v. FRN (2011) All FWLR (Pt. 554) 125 at 136
Note: Persons convicted of murder and sentenced to death are usually not released on
bail.
• Where there is a mis-trial on the face of the records;
308
• Where the grounds of appeal filed were so substantial that there is a good prospect of
success of the appeal - Chukwunyere v. C.O.P (1975) 5 ECSLR 44.
• Application for bail pending appeal should first be filed in the trial court and if refused, it
should be filed in the court where appeal is pending. Such application is by motion and
not by summons Obekpa v. C.O.P. (1981), Offiong v. C.O.P. (1966) NNLR. 94.
• Where appeal has been entered, the bail application may be filed directly in the court
where appeal is pending.
HEARING OF APPEALS AT THE COURT OF APPEAL
By brief writing introduced in 1984.
Appellant’s brief – to be filed within 45 days of the appellant receiving records of proceedings.
O19 R2 CAR 2021.
Appellant’s brief is a succinct statement of his argument in appeal.
Respondent’s Brief – to be filed within 30 days from the date the respondent is served with the
appellant’s brief O19 R4 (1) CAR 2021. It is a succinct statement of the respondent’s response
to the arguments raised in the appellant’s brief served on him. Must be duly endorsed with an
address or addresses for service.
Reply Brief (where necessary) to be filed within 14 days from the date the appellant is served
with the respondent’s brief O19 R5 CAR 2021.Reply brief is only to deal with all new points
from the respondent’s brief.
Each party is expected to file 10 copies of brief in hard and electronic forms in court O19 r8
CAR 2021, no brief shall exceed 35 pages except otherwise directed by the court O19 r6.
APPLICABILITY OF THE PRACTICE DIRECTION TO CRIMINAL CASES
See above for the cases contained therein
Interlocutory appeals challenging the ruling of the court below on an interlocutory application.
Practice direction is made by the President of the Court of Appeal or the Chief Justice of Nigeria
(as the case may be) to fast tract hearing of appeals, eliminate unnecessary delays and reduce
time and expenses in the conduct of appeals in some specific cases/offences. Cases listed in the
practice direction are speedily heard and given priority attention.
BRIEF OF ARGUMENTS IN CASES COVERED BY THE PRACTICE DIRECTION O8

CA (Fast Track) Practice Directions, 2021
• Appellant’s brief must be filed within 14 days after receipt of the record of proceeding;
309
• Respondent’s brief must be filed within 10 days after service of Appellant’s Brief;
• Reply brief must be filed within 5 days after service of the Respondents brief;
• No oral elaboration of brief is allowed except by order of court;
• All applications must be resolved within 21 days of filing the last document.
• In hearing the appeals, priority attention shall be given to all the appeals listed as fast
track
• In preparing the cause list, those cases shall come first.
• The judge may designate certain days in hearing the appeals and shall not entertain
frivolous applications for adjournment.
HEARING OF APPEALS
On the date the appeal is set down for hearing, each party will be given 15 minutes to adopt and
or argue his brief O19 r9(3) CAR 2021.
ABSENCE OF PARTIES AT THE HEARING OF APPEAL
See above
CROSS APPEAL
This is an independent appeal filed by the respondent against the judgment of the lower court.
Such appeal is heard at the same time as the appellant’s appeal and is determined on its own
merit.
RESPONDENT’S NOTICE
The respondent contends that the decision of the court below be varied either in part or in whole.
The respondent may also contend that the decision be affirmed on grounds other than those
relied on in the court below.
CONTENTS OF BRIEF OF ARGUMENT
• Name of court
• Appeal no
• Parties to appeal
• Title of brief
• Table of contents
• Introduction/preliminary statement
• Issues for determination
• Statement of facts
• Arguments on the issues
310
• Conclusion/summary, list of authorities

• Name, address of counsel settling brief.
Brief of argument must be signed and dated by counsel filing it.
BRIEF OF ARGUMENT IN SUPREME COURT O6 R.5(1) SCR
• First introduced in 1977.

• Appellant to file brief within 10 weeks of receiving records.
• Respondent to file brief within 8 weeks of receiving Appellant’s brief.
• Reply brief to be filed within 4 weeks
• Parties are expected to file 10 copies of brief.
• One hour is given to each party to argue and or adopt his brief O6 R8(5-7) SCR.
• Where a party needs more than one hour to argue his brief, he is required to apply to
court for additional time at least one month to the hearing of the appeal.
ORDERS COURT MAY MAKE AFTER HEARING APPEALS
i.) Allow the Appeal: The decision of the lower court is reversed; this is done where the
appeal succeeds. The conviction of accused/defendant will be quashed and he will be
discharged and acquitted.
ii.) Dismiss the Appeal: This is done where the decision of the lower court is affirmed.
The conviction of the accused will be affirmed and appeal dismissed.
iii.) Reduce or Increase Sentence. This is done where there is appeal on sentence.
iv.) Alter Findings but Maintain the Sentence.
v.) Uphold Plea of Insanity and Annul Conviction of D.
vi.) May Order Re-Trial
ABANDONMENT OF APPEAL
An appellant may abandon his appeal either expressly or impliedly. Express abandonment
involves filing notice of abandonment to the registrar, while implied abandonment arises where
the appellant wishfully refused to take further step after filing his notice of appeal.
PROCEDURE FOR ABANDONMENT OF APPEAL
• MC to HC: Filing of notice of abandonment by appellant/counsel at least 2 days

before hearing to the Registrar of the court below.
• HC to CA: Filling of Criminal Form 11 or 11A headed “Notice of Abandonment of
Appeal” and filing same to the Registrar of the court below O17 r17 CAR 2021.
• Supreme Court: letter from appellant informing Registrar of intention to abandon.
311
• An appellant may impliedly abandon his appeal if he fails to file the necessary papers to
prosecute his appeal after filing his Notice of Appeal.
ABATEMENT OF APPEAL
Abatement of appeal arises where the appellant dies before his appeal is determined. Criminal
appeal may survive the dead appellant where the appeal is against fine as the judgment of court
may be executed against the estate of the deceased appellant R v. Rowe, Abdullahi v. NA.
ADDITIONAL GROUNDS OF APPEAL
Additional grounds of appeal may be filed upon the receipt of the record of proceedings or as the
need arises. However, leave of court is required to file the additional grounds where the time to
file the notice of appeal has expired.
Appeal is argued based on the grounds of appeal filed before the court. Where issues are raised
in your brief, you must show the grounds to which such issues relate.
ADDITIONAL EVIDENCE ON APPEAL ABIOLA V. C.O.P
• This will only be required where a particular piece of evidence which ought to form part
of the evidence to be considered before judgment is delivered at the trial court is not
available before the court.
• An order or leave is granted by the appellate court to receive such evidence or the case is
sent to the lower court to receive such evidence.
• Where the evidence sought to be adduced was not available before the trial.
• The evidence is relevant to the issue before the court.
• Where taking fresh evidence will not amount to rehearing of the matter.
CONSTITUTION OF THE COURT OF APPEAL
• Three justices of that court S 247(1) CFRN

• In special cases (not criminal appeals) the President of the Court of Appeal may empanel
five justices of the court to sit over a matter.
APPELLATE JURISDICTION
The Court of Appeal may hear and determine criminal appeals from the following courts:
• Federal High Court

• National Industrial Court
• High Court of the Federal Capital Territory
• High Court of a State
312
• Court Martial
• Code of Conduct Tribunal
• Any other tribunal established by Nat. Ass.
CONSTITUTION OF SUPREME COURT
5 Justices of the court sit to hear appeal.
Full court is 7 Justices for interpretation or application of the Constitution or to determine

questions as to whether any provisions of Chapter IV of the Constitution has been, is being or is
likely to be contravened in relation to any person S234 CFRN.
Opinions of Absent Justices of the Court: "Any justice of the Supreme Court (who heard any
cause or matter) can after a decision has been arrived at by all the justices, pronounce the opinion
of another justice, who for one reason or another, is unable to reduce his opinion into writing or
be present when the judgment in the case is being delivered by each of the other justices". Per
Fatayi Williams C J.N. in AG of lmo State v AG of Rivers State (1983) 8 S.C. 10.
SAMPLE DRAFT
IN THE COURT OF APPEAL

HOLDEN AT LAGOS
Appeal No .....
Charge No ...
BETWEEN:
Buka Suka ...................................... Appellant

AND
The State of Lagos ..................................... Respondent
Notice of Appeal
To the Registrar of the High Court, Lagos:
I, Buka Suka having been convicted of the offence of rape by the High Court, Lagos presided by
His Lordship C. Smith, J on 15 August, 2021 and sentenced to 7 years imprisonment with hard
313
labour and now being a prisoner at Kirikiri Corrective Centre, Lagos, do hereby give notice
against my conviction to the court on the following grounds:
Grounds of appeal:
Ground 1
The learned trial judge erred in law when he ruled on a no-case submission that the prosecution
had made a prima facie case that warrants the defendant to give his defence.
Particulars:
The prosecution did not adduce any evidence to show that the defendant raped P.W 1 (Miss Tina
Regina).
Ground 2
The judgment is unreasonable and cannot be supported having regard to the evidence.
..........................
Signature/mark of appellant or his counsel.
Dated this............ August, 2021
Particulars of trial and conviction:
Date of judgment: 15 August, 2021
Court: High Court 5 Lagos
Judge: Hon. Justice C. Smith
Sentence: 7 years imprisonment with hard labour
314

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Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.

CURRICULUM, LESSONS PLAN AND CASE STUDIES

1. INTRODUCTION TO CRIMINAL LITIGATION

WEEK 3- INTRODUCTION TO CRIMINAL LITIGATION

At the end of this lesson students would be able to:

1. Discuss the scope of the criminal litigation course;

1. Introduction to Criminal Litigation.

ACTIVITY BEFORE CLASS

ACTIVITIES IN THE CLASS

1. Students would be required to read the topic in advance generally;

MEANING OF CRIMINAL LITIGATION

ACJA “offence” means an offence against an Act of the National Assembly;

“Indictable offence” means an offence which on conviction may be punished by:

(a) a term of imprisonment exceeding two years; or

COMPARISON BETWEEN CIVIL AND CRIMINAL PROCEEDINGS

1. Objective of serving Justice: The objective of both is to serve justice.

4. Administration of Criminal Justice Law: governs proceedings in High Court and

5. Harmonised Sharia Criminal Procedure Code: operative in over 11 Northern states

5. Judicial interpretation of enactments

SECTION 35 OF THE HIGH COURT LAW OF NORTHERN NIGERIA expressly

TYPES, SITTINGS, AND SETTINGS OF CRIMINAL COURTS

I. TYPES OF COURTS OF CRIMINAL JURISDICTION

A. COURTS OF GENERAL CRIMINAL JURISDICTION: these are courts that have

1. COURTS OF ORIGINAL CRIMINAL JURISDICTION – These are courts you can

2. COURTS OF APPELLATE CRIMINAL JURISDICTION: these are courts that only

i. Court of Appeal, and

B. COURTS OF SPECIAL CRIMINAL JURISDICTION: These courts are set up to try

i. Federal High Court,

ii. National Industrial Court,

II. SETTING OF A CRIMINAL COURT

III. SITTINGS OF THE COURT

MODE OF DRESSING AND DECORUM IN THE VARIOUS COURTS

I. CUSTOMARY AND AREA COURTS

II. MAGISTRATES’ COURTS

• Mode of Address: “Your Worship”. However, the mode of addressing a Magistrate in

III. HIGH COURT (STATE & FEDERAL)

IV. COURT OF APPEAL

• Mode of Address: “My Lords”.

ETHICAL DUTIES OF COUNSEL AND COURT IN CRIMINAL TRIALS

i. Being present in court at all times

II. Defence Counsel

i. Being present in court

III. Trial Judge

i. Granting to the parties right of audience before the court

IV. Court Registrar

i. Accept all processes for filing

ii. Make records of proceedings available to the parties upon demand

Identify the issues arising from the scenario

WEEK 4- SUMMONS, ARREST, SEARCHES AND CONSTITUTIONAL RIGHTS

At the end of this lesson students would be able to:

1. Authority to issue a warrant of arrest

7. Students are grouped to draft/and complete forms of summons and warrants – 20

A summons is a document issued by a court of competent jurisdiction directing the person

According to ACJA S89 on Form of complaint.

(3) A complaint may be made by the complainant in person, or by a legal practitioner

Who may issue Summons?

Issue and Service

But S81 ACJL Lagos provides that

According to Agaba: CNDDS

1. Concise statement of the offence

Normal Methods of Effecting Service

a) an individual, to him personally; or

Service where person summoned cannot be found or Substituted Service

NB: substituted service must be by leave of court.