Mayowas Criminal Litigation Note.docx

**INTRODUCTION TO CRIMINAL LITIGATION** Criminal litigation deals with the law and procedure relating to criminal trials. Criminal litigation starts from the time complaint is laid to the relevant authority and such is investigated, arrest is made, the trial, conviction, sentence and appeal of the decision of the court. **SOURCES OF THE LAWS/RULES GUIDING CRIMINAL LITIGATION IN NIGERIA.** **Principal Enactments (Primary sources) (The 3 focus jurisdictions of criminal litigation)** 1. Administration of Criminal Justice Act 2015 (applies to the FCT and other offences punishable in the FCT. This is by virtue of **s2(1)** of the said Act 2. Administration of Criminal Justice (Repeal and Re-enactment) Law of Lagos State 2015 as amended in 2021 3. Administration of Criminal Justice Law of Kano State 2019 **Secondary Enactments (Secondary sources)** 1. Constitution of the federal republic of Nigeria 1999 as amended 2. Evidence Act 2011 3. The Police Act 2020 4. The Armed Forces Act 5. Coroners' Laws of the States 6. Children and Young Persons Law 7. Magistrate Court Laws 8. Various High Court Laws 9. Court of Appeal Act 10. Supreme Court Act 11. Various court rule 12. Practice Directions **Procedure to apply when there's a lacuna;** - **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 when there are no adequate provisions in the law when a matter arises (lacuna), the court shall adopt such procedure which will in its view do substantial justice between the parties concerned. - **SECTION 492(3) ACJA**. When there is a lacuna, recourse should be had to a procedure that will meet justice of the case - **S 457 ACJL KANO** says the judge may make rules to carry out the effect of the law where there are no provisions in the law the court may apply any procedure that will meet the justice of the case. Perhaps rules of court and other laws would apply **EXPLAIN THE TYPES, SITTINGS AND SETTINGS OF COURT** **Types of Court** - **Courts of general criminal jurisdiction** (empowered to try and adjudicate on any criminal case, only limited by Acts or Laws creating them) Examples: S.C, CoA, HCs, MCs, CCs - **Courts of Special criminal jurisdiction** (empowered to try and adjudicate specific offences) Examples: FHC, NIC, Juvenile Court, Court Martial and other tribunals established under the law---Code of Conduct Tribunal and the Robbery and Firearms Tribunal) **Sittings of court** Juridicial days are the days the court sits i.e mon -- fri and non juridical days are days which the court doesn't sit i.e Sundays, public holidays, vacation period, etc. In practice courts don't usually sit on Saturdays but it is still a juridical day e.g mag court law. Legal proceeding held on NJDs is a nullity\--**-BALOGUN V. ODUMOSU**, with the following exceptions: - **Parties agreement** and where it would be difficult to get the presence of a party on other days-**OSOSANMI V. C.O.P** - **Statute authorizes it** (Magistrate sits on Saturdays for bail and remand orders and non-custodial disposition) \--**S. 40 (2) Magistrate Court Law Lagos** - Can sit on **Saturday to hear** **election petition matters**. The court start sitting from 9 O'clock in the forenoon or so soon thereafter and until the court rises for the day. **Settings of criminal court** 1. **The Bench**: this is where the judge or magistrate sits 2. **The** **Registrar's Desk**: where registrar and other court clerks sit. It is beneath the bench 3. **The Bar**: this is where lawyers who are ready for litigation business sit. They must be robed. Robing is not compulsory in Magistrate court. **Rule 45 RPC** provides for robing in High Court, Court of Appeal and Supreme Court. There is the Inner Bar -- for SAN, Attorney Generals and Life Benchers and the Outer Bar -- other lawyers. Usually, the first row is left for those meant to sit in the inner bar. This is when there is no inner bar. The new Lagos High Court rooms now have inner bar different from the outer bar on the side. 4. **The Dock:** this is where an accused person sits/stands. It is to the left hand side of the judge. An accused cannot give evidence from the dock. He can only make a statement of which he cannot be cross-examined as it is not evidence. When an accused person wants to give evidence, he will move to the witness box to give sworn testimony i.e under oath. 5. **Witness box**: this is where witnesses stand to give evidence after they might have sworn to oath or affirmed. This is to the right hand of the judge. The witness can decide not to swear an oath and affirm and still give evidence -- **s. 207 & 208 EVIDENCE ACT.** 6. **Gallery**: this is where lawyers that are not robed sit and complainant and other spectators sit. **SEARCHES, ARREST AND CONSTITUTIONAL RIGHTS** **ARREST** It is the process of bringing a person to court or police station. The major thing about arrest is that the person to be arrested must know that his movement has been curtailed and as such infringed on his right to personal liberty provided for by S. 35 CFRN. All law enforcement agencies are empowered to effect an arrest, including a private person. The three processes of bringing a suspect to court are: - Arrest with warrant - Arrest without warrant and - Summons. **ARREST WITH WARRANT** A warrant of arrest is an authority in writing to a police officer or any other person directing the officer or person to arrest a named offender and bring him before the court to answer to a complaint made against him.-**S.79 ACJL, S.113 ACJA.** NB: It is within the discretion of the issuing authority to elect whether to issue a warrant of arrest at first instance or to issue a summons instead (depends on the circumstances of the case). There is a difference between a summons and a warrant of arrest. Summons is issued and directed or addressed to the offender while a warrant of arrest is issued to the police officer or any other person. **Authority that may issue a Warrant of Arrest (**Who can issue it?) BAR II EXAM FOCUS 1. **Judge,** 2. **Magistrate** (a magistrate has jurisdiction to issue a WOA against any suspect irrespective of that they can try the offence or not)\-- **S 36(1c) ACJA, S22ACJL LAGOS, S55(1c) ACJL kano**. From the foregoing, a justice of peace or a Police officer no matter the rank cannot issue a warrant of arrest. **IKONNE V. COP** here the judge was acting in his capacity as chairman of judicial commission and not as a judge in issuing the warrant. 3. **The National Assembly** can issue a warrant of arrest or summons in limited circumstances (for investigations relating to matters which they have powers to make laws) **S. 89 CFRN**. But its power of issuing a warrant of arrest is not all encompassing.---**EL RUFAI V. SENATE OF THE NATIONAL ASSEMBLY** **NB:** An Area Court judge who is a Legal Practitioner can issue a warrant of arrest in FCT based on **S. 494(1) ACJA** who defines a judge to include a judge of an area court presided by legal practitioners. Hence, an area court presided by a non legal practitioner cant issue warrant. WoA can be issued to police or private person **NB:** Where a warrant of arrest is directed to a private person, he is for the purposes of that arrest seen as a law enforcement agent in the eyes of the law and shall have all the powers of a police officer for the purposes of the arrest. **How arrest is to be done (mode of arrest)** - **Touch: S 4 acja, s1 acjl lagos, s27 acjl kano, s33 police act**, says the person making the arrest shall touch or confine the body of the suspect. In **Sadiq v The State**-- here she was merely invited to the police station and she refused to show up, she was then sued for resisting arrest, the court held that there was no arrest that it was a mere invitation - **Caution:** Administer words of caution and reason for arrest -- **S3 ACJL** - Use of handcuffs is prohibited unless by court order, there is attempt to escape or reasonable apprehension of violence -- **S2 ACJL, s5 ACJA**. Circumstances where use of force is allowed (generally)\-\--**ROAS** a. Reasonable apprehension of violence b. Order of court to that effect c. Attempt to escape d. Safety of the suspect/person effecting the arrest.---**S. 2 ACJL, S.5 ACJA, S34 Police Act** **How do you make a complaint for warrant of arrest?** By complaint in writing and on oath **S. 23 ACJL, s 37 ACJA**, it may also be issued on oral complaint as in **Fayose v State.** A magistrate may issue a warrant of arrest once a complaint discloses an offence even if the complaint is not on oath. NB: Where the law provides that a complaint needs to be in writing, it does not necessarily mean that oral complaint cannot be made. The police can act on it notwithstanding. Example: Mr. A called the police emergency line to lay a complaint of the where about of a wanted Kidnap Kingpin, it would be unreasonable for the police to neglect the statement because it was not in writing and made on oath before taking it to the magistrate for a warrant of arrest. - **Day of issuing a warrant of arrest:** It may be issued on any day including a Sunday or public holiday and can be executed any time **-- S.24 ACJL, S. 38 ACJA.** **Contents of a warrant of arrest**\--NaCODS By **S. 22 ACJL, 36 ACJA** the following are the contents of a valid warrant of arrest: a. Name and particulars of the alleged offender b. Brief statement of the alleged offence c. An order directing the police officer(s) or other person, to whom is addressed, to arrest d. The date of issue of the warrant e. Signature of the issuing authority. **Life span of a warrant of arrest**: Once a warrant of arrest is issued, it shall remain in force until it is either executed or cancelled by the authority that issued it **S. 25(2) ACJL, S. 39(2) ACJA**. Once executed the warrant lapses and cannot be subsequently used. **NB**: Warrant of arrest is still in force even after the issuer is dead, vacates office or retires **Where can a warrant of arrest be executed?** Generally, it can be executed at any place. However, it is not to be executed 1. **In a court room** in which a court is sitting (north and FCT): **S. 43(2) ACJA, s 61(2) ACJA Kano**. Thus, if the judge is still in chambers, an arrest can be made in the court room (anywhere the judge sits in his official capacity is the courtroom But the position in Lagos is different as **S. 27(2) ACJL Lagos** says a warrant cannot be issued in a court room. The diff in the position of these jurisdictions is that in Lagos the court doesn't have to be sitting as long as it's a court room an arrest cannot be executed (day& night) but in northern the court has to be sitting 2. **No MEMBER** (not staff) of the National Assembly or State House of Assembly shall be arrested within **the precincts (the whole premises) of the legislative houses**.-**S. 23(b) LEGISLATIVE HOUSES (POWERS AND PRIVILEGES) ACT, 2017**. **TONY MOMOH v. SENATE president** When the person to effect the arrest is not with warrant of arrest in his possession during the point of execution, He can go on to effect the arrest but the warrant of arrest shall be shown to the suspect within a reasonable time after the arrest (as soon as practicable/24 hours)\-\--**S.28 ACJL, S.44 ACJA** else the arrest becomes an unlawful arrest. **Procedure after arrest** a. The suspect is to be taken immediately to a police station, b. The suspect shall be promptly informed of the allegation against him in the language he understands c. The suspect shall be given reasonable facilities for obtaining legal advice, access to communication for taking steps to furnish bail. d. The legal advice shall be done in the presence of the officer who has custody of the arrested suspect\-\--**S. 14 ACJA** The authority having custody of the suspect shall have responsibility of notifying the next of kin or relative of the suspect of the arrest at no cost to the suspect (**notification of arrest**) **S. 6(2) proviso ACJA, s 35(3) police act** **NB:** Arrest in lieu of a suspect is prohibited---**S. 4 ACJL, S.7 ACJA.** This does not however prohibit going against sureties of the suspect in Lagos by **s 4 (2) ACJL Lagos. Kano and acja don't provide for this** A suspect shall not be arrested for a civil wrong or breach of contract \-\-- **Kure v COP,** the man who was arrested for not fulfilling his contract of supplying giraffes **Execution outside jurisdiction (**BAR II EXAM FOCUS) **Procedure for execution within the state but outside magisterial district/ judicial division of the issuing authority.** 1. Effect the arrest without taking the warrant to any M or J in that location for endorsement 2. Take the suspect to the M or J in that location to do any of the following - Endorse removal of the suspect - Grant the suspect bail (if it is a bailable offence or if the warrant was endorsed with bail by the issuing authority\--with regard to the bail conditions contained therein)---**S. 30(1) ACJL, S. 46(1) ACJA** **Procedure for execution in another state** 1. Take the warrant to the M or J in that state for endorsement and M or J before the endorsement must establish and answer the following in the positive: - Is the alleged act or omission an offence in the state where the warrant was issued? - Was the warrant issued by a competent authority? 2. Effect the arrest and bring the suspect back to the endorsing M or J who will now - Endorse removal (Permit the arresting authority to take the suspect to the issuing authority) or - Grant the suspect bail if it is a bailable offence or the warrant was endorsed with bail **s 365(1) ACJL MATTARADONA V. ALIU** **ARREST WITHOUT WARRANT** An arrest without warrant can be made by three categories of persons: Police officers, Judicial officers, Private persons 1. **Cases in which police officer may arrest without warrant** are provided under: **s. 24 Police Act, S10 ACJL, S 18 ACJA** a. **Presence:** when an offence is committed in his presence whether an indictable or non-indictable, even when the law says a warrant should be issued. b. **Reasonable** **suspicion of committing an offence**: **COP V Obolo**, his own wasn't reasonable suspicion cause they came to arrest him at every incident of armed robbery in the area c. **Escape rule:** when a person has escaped lawful custody---**S. 48 ACJA, S 31 ACJL Lagos as amended** Read the remaining instances in the sections **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. 2. **Judicial officers**: Judge, magistrate, **S. 15 ACJL, S. 25 AND 26 ACJA**. A judge or magistrate may himself arrest or order any person to arrest anyone who commits an offence in his presence. Also, they may arrest or direct the arrest in their presence of a person whose arrest upon a warrant can be validly issued by them 3. **Private persons:** Under **S. 12 ACJL, s 20 ACJA** a private person may arrest without warrant if he commits the offence on his presence. A private person effecting arrest without warrant must without unnecessary delay deliver the suspect to a nearest police officer or in the absence of a nearest police officer, must take the suspect to the nearest police station. **S 12(2) not subject him to torture & 14(1) ACJL, S. 23 ACJA**. **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.** **NB:** When the person arrested is taken to the police officer or police station, the police officer shall re-arrest him.(MCQ) **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 were 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** **NOTABLES FOR EXAM** Where a person or police officer acting under a warrant of arrest or otherwise having authority to arrest, has reason to believe that the suspect to be arrested has entered into or is within any house or place, the person residing in or being in charge of the house or place shall, on demand by the police officer or person acting for the police officer, allow him free access to the house or place and afford all reasonable facilities to search the house or place for the suspect sought to be arrested\-\--**S. 12(1) ACJA** Where access to a house or place cannot be obtained under subsection (1) of this section, the person or police officer may enter the house or place and search it for the suspect to be arrested, and in order to effect an entrance into the house or place, may break open any outer or inner door or window of any house or place, whether that of the suspect to be arrested or of any other person or otherwise effect entry into such house or place, if after notification of his authority and purpose, and demand of admittance duly made, he cannot otherwise obtain admittance\-\--**S. 12(2) ACJA** **SUMMONS** A summons is an alternative to a warrant of arrest and is usually issued for misdemeanors and simple offences or where the person whose attendance is required is not likely to refuse to attend court. Where the offence is a serious one by nature, a warrant of arrest will be issued. **S.117 ACJA, 82 ACJL** Note that in practice summons is rarely used **Issuing authority**: May be issued by a judge mag or justice of peace. See **sections 79 & 80 ACJL& section 113 ACJA**. **A court (that is Judge or Magistrate) has the power to issue criminal processes (that is, summons or warrant of arrest), even if it has no jurisdiction to try the offence, provided that a Court within the state has the jurisdiction to try the offence.** See **section 79 ACJL, section 113 ACJA**. **Contents of summons** a. A concise statement of the alleged offence b. The name of the individual charged with the alleged offence c. An invitation to the named individual to attend the court or police station at a particular date and time being **not less than 48hours** after the service of the summons on him d. The date the summons was issued e. The signature of the issuing authority, whether Judge, Magistrate or Justice of the Peace. **Issuance and service of summons LAGOS:** (BAR II AND MCQ EXAMS) By **section 81(a) ACJL**, a summons may be issued or served on any day from Monday to Saturday between the hours of **8:00am to 6:00pm**. However, by **section 81(b) ACJL**, a summons issued or served on a Sunday or a public holiday shall not be invalid but shall take effect from the next working day. **Issuance and service of summons ACJA:**, **section 116 ACJA** provides that a summons may be served or issued on any day including a Sunday and public holiday. By **section 87 ACJL, section 123 ACJA**, the summons is to be served personally on the person named on it. However, by **section 88 ACJL**, where personal service is impossible, then substituted service (Affixing it in a conspicuous part of the premises in which the accused ordinarily resides) may be resorted to **with leave of court.** **Effect of failure to obey summons** Under **section 94 ACJL**, **section 131 ACJA**, the effect of a failure or refusal to obey a summons is that where the defendant disobeys a summons and the court is satisfied that he was duly served with it and he disobeyed, the court will issue a warrant for his arrest. **NB:** It must be noted that a PUBLIC SUMMONS is not a SUMMONS. A public summons is issued when a person against whom a warrant of arrest has been issued has absconded or is concealing himself. See **section 41 and 42 ACJA** **Intra-state execution of summons/service outside jurisdiction:** By **section 91 ACJL, section 126 ACJA** where a summons is required to be served on a criminal defendant who is outside the Jurisdiction of the court that issued the summons, but within the same State, the court issuing the summons will send the summons in duplicate to the other court within whose jurisdiction the criminal defendant is to be served and that other court will direct service as if it had issued the summons itself. **Inter-state execution of summons:** a summons issued in one state may be served in another state. The service of such a summons in the other state may be made in the same way as a summons in that state as the law does not require the endorsement of a Magistrate in the state where the summons is to be served. **SEARCHES** Search simply means the examination of a person\'s body, premises or thing. The purpose of a search is to obtain evidence of the commission of a crime. Regard must be had to **s 37 CFRN** On right to privacy Search could be of: 1. A person 2. Premises 3. Things **Search of Persons** (BAR II EXAM FOCUS) - No search warrant is needed here. - A police officer making an arrest or receiving an arrested person who was arrested by a private individual, may search the arrested person or cause him to be searched. (this is the main provision authorizing sop) **s 9(1) ACJA, 5(1) ACJL LAGOS, 32(1) acjl kano, 52(1) police act**. Also know that such persons may be subjected to medical examination See **section 11 ACJA, section 5(6) ACJL, s 34 kano** **section 4(4) NDLEA Act**. Note that where a medical practitioner isn't procurable a police officer in good faith may conduct this examination - After such search is conducted, the police officer shall place, in safe custody, all articles recovered from the person searched and keep an **inventory** of all recovered items which shall be duly signed by the police officer and the suspect but non signing of the inventory shall not invalidate it, **section 6(a) ACJL, s10 ACJA, s46 police** - **Section 5(2) ACJL** **lagos, s 51(6a) police, 32(3) kano** provides in that whenever it is necessary to search a person, he shall be searched by a person of same sex with due regards to decency. Thus, a man is to be searched by a man and a woman is to be searched by a woman. However, the ACJA further provides in **Sections 9(3) ACJA**, that **unless the urgency of the situation or interest of justice makes it impracticable** for the search to be carried out by the person of the same sex. This means search of person is to be carried out by same sex unless impracticable. However, by **section 5(3) ACJL, 9(4) ACJA** the limitation on the search of a woman is only limited to her person and does not apply to the things she is carrying like her handbag or offensive weapons or substances on them etc. unacceptable grounds to search a person include on basis or hairstyle, dressing, age, colour, previous conviction, etc see **s54 police act** **Search of premises** As a general rule, premises cannot be searched without a search warrant see **s 144 ACJA, S 104 ACJL LAGOS**. This provision extends to ships, buildings and aircraft. 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:\-\--**APC DOG** - **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 **section 7 ACJL, sections 12 ACJA** - **Presence of JP:** **s 152 ACJA** provides that a justice of the peace may direct search in his presence (his presence means a search warrant) - **Custom officer:** A custom officer may enter or break into a place where he reasonably believes that illegally imported goods are kept.\-\--**S. 147 Custom & Excise Management Act** - **Drugs:** An officer of the NDLEA or police officer, in order to recover drugs kept in premises may enter and search such premises\-\--**S. 32 National Drug Law Enforcement Agency Act** - **Order of court:** Acting upon an order of court for the release of an unlawfully abducted person - **Government property is harboured NSCDC:** 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, vandalisation materials, and illegal petroleum dealer. See Nigeria Security and Civil Defence Corps (Amendment) Act. **NSCDC V. EMMANSON UKPEYE** (they also have power to arrest persons with or without a warrant in the name of the AGF if the person committed an offence under the act) **Who can issue a search warrant?** - Judge/ Magistrate, - Justice of the Peace (only under acja) Under **section 106 ACJL** a Magistrate or a High Court Judge can issue a search warrant. It is procured upon information on oath and in writing and must be signed by the issuing authority (s104 applies too). while, **section 146 ACJA** provides that a judge, magistrate or justice of peace may issue a search warrant upon information on oath and in writing must be signed by the issuing authority. (s144 applies too) NOTHING IN **S 48 POLICE ACT** SAYS THAT A POLICE OFFICER CAN AUTHORISE A SEARCH OF PREMISE. HENCE THEY CANT UNDER THE AMMENDED LAW Every search warrant shall remain in force until it is either executed or cancelled by the Court which issued it. Once it is executed, it can no longer be subsequently used. **Contents of a search warrant** are:\-\--AIDS Address of the premises to be searched; Items to be searched for; Directive that the items be seized and brought to court; date and Signature of the person issuing it. **NOTE THE FOLLOWING:** - Where a place to be searched is closed, on demand by a police officer or other person executing the **search warrant**, the person in occupation of the premises to be searched must give free access (free ingress and egress) and afford all reasonable facilities for the search. See **section 109(1) ACJL, section 149(1) ACJA**. However, if the person in occupation refuses to grant free access, the police officer has the right to break into the premises to conduct the search and break out. See section **109(2) ACJL S 149(2) ACJA** When any person in or about the premises so searched is reasonably suspected of concealing on his person any article for which search should be made, such person may be searched. If the person to be searched is a woman, then she shall, if possible, be searched by another woman and may be taken to the police station for that purpose. See **section 109(3) ACJL; section 149(3) ACJA.** - **Witnesses:** The occupant of a place shall be entitled to be present during the search or someone on his behalf and receive a list of things seized which shall be signed by the witnesses **s 150 ACJA** **Time of issuance and execution in Lagos**: it may be issued and executed any day and any time including sat sun and public holidays and between 5am-8pm except the court directs otherwise. **See s 108(1) acjl lagos** **Time of issuance and execution in kano and fct (acja):** may be issued and executed anyday of the week including sun and public holidays and at any time see **s 158 acjl kano, s148 acja s 59(3) police act** Note the difference between the two is on the time of execution **NB:** The person executing the search warrant should submit himself to a search before carrying out the search, in order to ensure transparency. **Seizing items not specified in the warrant:** Generally, items not specified in the search warrant should not be seized. However, where the person executing the search warrant comes across incriminating items which he reasonably believes to have been stolen or are relevant in respect of other offences, he can lawfully seize them **ELIAS V PASMORE**. Upon seizure, all the things seized should be taken to the person that issued the search warrant. **Admissibility of illegally obtained materials** The position of the law is that incriminating items recovered in the course of an illegal search is admissible in evidence once it is relevant to the facts in issue UNLESS the desirability of admitting the evidence is outweighed by the undesirability of admitting the evidence.\--**S 14 & 15 Evidence Act**. See **Musa Sadau v. The State**. NB: Section 15 E.A provides the guide with which the court will use to determine the admissibility of the illegally obtained evidence such as the probative value of the evidence and its relevancy to the facts. (the court has discretion to admit or reject an illegally obtained evidence) **Liability for wrongful procuration of a search warrant.** 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, malicious prosecution**\--**OJO V LASISI** (but not false imprisonment if the person was detained) **Execution of search warrant outside Jurisdiction of the court (fct acja):** A person executing a search warrant beyond the jurisdiction of the court or justice of the peace issuing it shall, before doing so, apply to the court within whose jurisdiction search is to be made and shall act under its directions **S. 151 ACJA** **Execution of search warrant outside Jurisdiction of the court (kano)**: A person executing a search warrant beyond the jurisdiction of the court issuing it may **if he so requires** before doing so, apply to the court within whose jurisdiction search is to be made and shall act under its directions **s 161 kano** The diff is in Kano the officer can elect to apply to the court in whose jurisdiction the search is to be executed There is no provision for search outside jurisdiction in Lagos **Death of the issuing authority:** A summons, warrant or other process issued under any written law shall not be invalidated by reason of the death of the person who signed it or his ceasing to hold office or have jurisdiction. See **section 100 ACJL** \***Purdah**: If any place to be searched is in the actual occupation of a woman, not being the person to be arrested, who according to custom, does not appear in public, the person making the search shall, before entering the apartment, give notice to such woman that she is at liberty to withdraw and shall afford her every reasonable facility for withdrawing, and may then enter the apartment. However, where she is the person to be arrested, OR SHE IS NOT AROUND this provision will not apply (this isn't provided for in any legislation again used to be in cpc) **Search of Things** A search of things may be conducted with or without a search warrant; aircraft, ship and vessels need warrant. See **s49(2) police act** saying search of a person or vehicle where reasonable grounds exist to the suspicion of the person or vehicle carrying unlawful or stolen article. A police officer can stop and search vehicles on the road without a warrant- **KARUMA v R** **CONSTITUTIONAL/PROCEDURAL RIGHTS AND SAFEGUARDS OF AN ACCUSED PERSON** a. **Right to personal liberty:** **S. 35(1) CFRN** However the exception under **S. 35(1)(c) CFRN** recognizes 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. b. Right to remain silent or avoid answering any question until after consultation with a Lawyer or person of his choice **S. 35(2) CFRN** c. Information in writing within 24 hours and in the language he understands of the facts and grounds for his arrest and detention **S.35(3) CFRN** d. Charge the accused to court within a reasonable time **S. 35(4) CFRN** Reasonable time means a period of one day where a court is within 40km or a period of two days or longer where necessary in any other e. Apology: Public apology and compensation from the appropriate authority or person to a person who is unlawfully arrested or detained.---**S. 35(6) CFRN** f. **S36(6C) CFRN** right to a legal practitioner of his choice g. **S 34 CFRN** right to dignity of the human person: this is in relation to execution of arrest and searches and should not be tortured, beaten or subjected to inhuman or degrading treatment h. **S 37 CFRN** right to privacy **PRE-TRIAL INVESTIGATION AND POLICE INTERVIEW** **Who can conduct?** - Police - Other law enforcement agencies, e.g NDLEA, EFCC, NAFDAC, NIGERIAN CUSTOM SERVICE **Roles and Powers of the Police**- **S 4 Police Act** 1. Pre-trial investigation 2. Prevention and detection of crime\-\--**S. 4 POLICE ACT** 3. Arrest of offenders 4. Prosecution of offenders **S. 66 POLICE ACT** giving power to police officer who is a LP to prosecute in any court, but see **s 66(2)** basically saying a police officer who isn't a LP can only prosecute in magisterial district court except where any federal or state law says otherwise, e.g ebonyi state not allowing non lp police prosecute in any court. See **Osahon v FRN** that allowed police prosecute in any court and **s 174 &211 CFRN** on power of AGF & AGS to take over and prosecute criminal offences and the power of the police to prosecute is circumscribed within the powers of the AG PTI is the first step that the police will carry out before arraignment in court. The police and other law enforcement agencies are responsible for conducting pre-trial investigation. The essence is to obtain evidence. However, this duty of the police to conduct PTI does not extend to debt collection and other civil wrongs like breach of contract---**KURE V COP** The conduct of police investigation must be carried out within the confines of the law. If at the end of pre-trial, there is no sufficient evidence against the suspect, no charge will be made against him. Hence, pre-trial investigation will determine whether an accused can be convicted. It also affects the trial. **Categories of persons that may be invited by the police in course of PTI** - Suspect - Victim - Complainant - Witnesses - Experts - Any person who may aid proper investigation At the stage of PTI any person arrested in relation to the offence is still referred to as "suspect" and "defendant" upon arraignment. A suspect invited for PTI MUST answer the invitation otherwise, he will be arrested. On the other hand, a witness is not mandated to attend the PTI although the court can issue a "witness summons" (subpoena relates more to civil litigation). The police have discretion as to investigation of a suspect **Procedure for pre-trial investigation** - Complaint is made to the police orally or in writing either by the victim or a witness to the crime - The complaint is registered in the case book diary - Investigation is then commenced into the matter **Factors hindering effective police investigation in Nigeria** - Lack of trained personnel - Bribery and Corruption - Inadequate protection of witnesses - Lack of basic investigative skills - Poor record keeping - Poor remuneration - Impatience on the part of officers leading to early closure of case files. **Stages of police interview** (done by the Investigating Police Officer )\-\--**RICC** 1. Rapport building stage 2. Information exchange stage 3. Confrontation/challenge stage 4. Concluding stage **DISCUSS HOW ALIBI, STATEMENTS AND CONFESSIONS ARE RECORDED AT THE POLICE STATION ("JUDGES RULE") HOW IDENTIFICATION PARADE IS CONDUCTED AND HOW EXHIBITS ARE HANDLED.** **Alibi --** Elsewhere This is one of the commonest defence usually raised by an accused person or suspect. By raising the defence of alibi, the suspect is saying that he was not at the scene of the crime at the material time the crime was being committed and that it was practically impossible for him to have committed the crime. There is a duty on the accused to properly raise the defence of alibi. This duty includes **raising the defence at the earliest possible opportunity (as soon as arrested)**. It is properly raised when: - Raised timeously upon arrest and- **AZEEZ V STATE (**Wasn't raised timeopusly) - The particulars of the alibi (place, time, purpose and names of persons with the suspect) are supplied---**AZEEZ V STATE** Once alibi has been properly raised, in that the particulars were supplied, the police are required to investigate the alibi- **ATTAH V STATE**. In certain cases even if the particulars have been supplied, it would be irrelevant to investigate e.g. where the accused was caught/arrested while committing the crime, or at the scene of the crime, or was pursued and arrested immediately after committing the offence OR the confessional statement made voluntarily by the suspect may destroy the defence of alibi. If the defence is raised during arraignment, the prosecution is not bound to disprove it. The court will only consider such defence with material evidence in order to determine whether the defence will avail him. When the accused raise the defence of alibi and particulars are supplied, the prosecution should lead evidence to disprove such alibi by: - Calling strong evidence which connect the accused to the crime (material evidence)\-\-- **AZEEZ V STATE** - Leading superior evidence **NB**: If the prosecution is unable to disprove the defence of alibi raised, the court will discharge the accused. **Statements and Confessional statements:** A statement is a narration of the facts relating to a case. A confessional statement is an admission of guilt\-\-- **S. 28 EA** **Guiding principles in obtaining/tendering statements from a suspect** 1. **Caution**: Statement must be made under caution. The suspect should be cautioned as to his rights 2. **English:** Statements should be obtained in English language if practicable except the suspect does not understand English, then the police should allow the suspect to make his statement in that language. With an interpreter, it can be translated at a later stage to the language of the court.\--**OLALEKAN V. THE STATE.** It is assumed that someone who understands Pidgin English understands English language, so no need to translate the charge in pidgin -- **OLANIPEKUN V STATE** 3. **Pronoun requirement:** Recording of statement should be in singular pronoun that is first person singular or plural narration -- 'I' \'we\' 4. **Tendering interpreted statements:** In tendering statement recorded by an interpreter, the interpreter must be present and it must be admitted through him.\--**OLALEKAN V STATE**, otherwise the statement will become inadmissible hearsay evidence. **NB:** Both the statement and the interpreted version must be tendered NB: where an interpreter is used and also a recorder (different from the interpreter) in recording an accused\'s confession, such confession is inadmissible unless both the interpreter and the person who recorded the statement are called as witnesses. **OLALEKAN v STATE** \*\***NB:** Where it is not an interpreted statement, it is not mandatory for the police officer that recorded the statement to be in court before the statement can be tendered and admitted\-\--**MICHAEL OLOYE V. THE STATE (2018)** **NB**: Assuming the interpreter is dead (or cannot be found, incapable of giving evidence or his attendance cannot be procured without an amount of delay or expense which, to the court, appears to be unreasonable) WHAT BECOMES OF THE STATEMENT MADE? **ANSWER:** The prosecution would lay proper foundation in court through its witness, that the person who interpreted the statement and recorded same is dead, and then seek to tender the recorded statement. Failure to do so, it will amount to inadmissible hearsay evidence and would not be admissible. 5. **Statements**: Statements made to the police by the suspect during investigation must be tendered by the prosecution at trial and it is the foundation of the case. And such statements are admissible 6. The police officer recording a confessional statement need not be called to tender it if the maker was speaking in English language---**Michael Oloye v State** 7. **Voluntary:** It is not mandatory for a suspect to make statements to the police and as such the suspect only makes a statement if he wishes to do so otherwise he may refuse to answer any question put to him or make or endorse any statement even after consultation with his lawyer.\-\--**S. 35(2) CFRN**. Thus, statements made under undue influence, duress, threat, may not be admissible. **S. 29(2) EA, MOHAMMED V STATE**. All these and more amount to torture under the **S. 2 Anti-Torture Act 2017** (it could be physical, mental or psychological). There is no justification for torture-**S. 3(1) ATA**, and any police officer present in the torture scene or who commits an act of torture while acting pursuant to a superior order or who orders it shall be liable to the penalty prescribed for this offence**.** The penalty is imprisonment for **a term not exceeding 25 years and death sentence where it amounts to death**-**S. 8 ATA** **Principles relating to confessional statements** - In the process of interviewing a suspect, confessional statement can be obtained from the suspect. Confessional statement is regulated under **Ss. 28 & 29 EA.** No confessional statement can be made during trial, **UDO V STATE**. It can only be made during police investigation or at the close of police investigation. Should an accused confess to committing the crime during trial, it shall amount to a guilty plea and not confession. - Confession could be oral or in writing. PLEASE NOTE that **oral confession of arrested suspect shall not be admissible in Lagos,** however, it is admissible UNDER ACJA pursuant to **S. 15(5) ACJA.** (oral statement is admissible) - Statements made by suspects must be recorded in the original language made -- **ADEYEMI V STATE** - A confessional statement cannot be made on behalf of another person\-\--**MBAH V. THE STATE**. The confessional statement must be made by the suspect (accused) and confessional statement of suspect (accused) A cannot be used against suspect B except the other suspect in whose presence it was made adopts same by words or conduct -- **S. 29(4) EA**. Conduct depends on the circumstances of the case but such must be very clear as to leave no doubt as to the admission of the offence or confession. **NB:** Where a confessional statement has been made during the course of investigation by a co- accused implicating the other accused, if during the course of the trial the maker adopts the confessional statement on oath, it becomes binding on the other accused whether or not he adopts by word or conduct. In other words, where a statement is made on Oath, during trial before the court which incriminates a co-accused, and there are other corroborative pieces of evidence, the court may rely on it and convict the co-accused.\--**GBOHOR V THE STATE**. **Procedure for recording of confessional statements under ACJL and ACJA** Under **S 9 (3) ACJL** **2015 as amended in 2021** the statement must be taken in any of the following ways: - Orally but recorded on video - In writing but recorded on video - In writing in presence of a legal practitioner or acceptable representative to the suspect to endorse such statement Under the ACJL, if the foregoing is not done, then the confessional statement whether voluntary or otherwise shall be rendered impotent \-\--**S. 9(3) ACJL, AWELE V. PEOPLE OF LAGOS STATE, ZHIYA V. PEOPLE OF LAGOS STATE, CHARLES V FRN** **S 44(4) Police Act,** **S. 15(5) ACJA**, **S** **38(5) ACJL KANO** says oral confessional statement is admissible Where a suspect volunteers to make a confessional statement, the police officer shall ensure that the making and taking of the statement shall be: - In writing and may be recorded electronically on a retrievable video compact disc or such other Audio visual means - May be orally (and recorded on a video) The use of the word "may" under the ACJA has raised the issue whether or not the provision carries any force of law. However, in **CHARLES V. FRN**, the CoA held that the word "may" in S. 15(4) ACJA is mandatory because it denotes a duty imposed on a public officer on what he must do. Thus, the effect of the decision is that such confessional statement must be in writing and video recorded. BUT SEE THE NOVEL PROVISIONS IN ACJL KANO, **S 38(6)** that prosecution tendering to rely on a confessional statement must adduce evidence to show that it was obtained voluntarily. (no equivalent to this in acja and lagos) and S 38(7) which says the court would record any objection to the admissibility of the confessional statement and the court would rule on the objection while delivering judgment. **QUERY: HAS THIS POSITION ABOLISHED TRIAL WITHIN TRIAL** **ANSWER**: IDK in exam write everything you know and include that the **Evidence act** being a federal law regulates matters of evidence primarily and the provisions of acjlk cannot override the ea. **Grounds for objection to the admission of a confessional statement** - **Involuntariness:** here a trial within trial would be conducted to ascertain the voluntariness and where not gotten voluntarily, would be inadmissible- **S 29(2) EA** **IBEME V. THE STATE** - **Retraction** (Denial of authorship, signature, incorrect recording, doctored statement, etc) (No TWT) the court would admit it in evidence and determine the weight to be attached to it based on the other evidence before it. **Time to raise objection** An objection to an involuntary confessional statement should be made timeously. It should be made at the point the prosecution seeks to tender the statement as evidence. **OLALEKAN V. THE STATE.** The standard of proof is beyond reasonable doubt-**S. 29(2) E.A** and it is the prosecution that opens the case by calling witness first **NB:** Promise of secrecy, deception or moral adjuration, etc is not a ground for objecting to the admission of a confessional statement properly made as it would be admissible--- **S. 31 E.A** **Effect of Confession:** A confessional statement is sufficient to ground a conviction without corroboration provided the court is satisfied with the truth of the confession **SOFOLA V STATE** **Judge's rules** It is pertinent to note that the judges rules are for administrative convenience and purposes of which have no force of law but have been recognized by the court and codified to some extent.\-\-- **S. 3 ACJL, S. 6 ACJA** The most relevant of the rules are: - When a police officer is trying to discover whether, or by whom an offence has been committed, he is entitled to question any person, whether suspected or not, from whom he thinks that useful information may be obtained. But once the police officer has evidence which gives reasonable ground for suspecting that a particular person committed the offence, he should **caution** him before putting further questions to him. The caution should be as follows: \"You are not obliged to say anything unless you wish to do so but what you say may be put in writing and given in evidence\". - After being cautioned, where the suspect makes a statement or elects to make a statement, a record of the time, the place at which the statement was taken and the person(s) present at that time shall be kept. - If a suspect intends to write his own statement, he should be asked to write and sign the following statement before he starts writing out his statement: \"I make this statement of my own free will and volition. I have been told that I need not say anything unless I wish to do so and that whatever I say may be given in evidence\". And if it is written by a police officer the accused must state at the end of the statement thus: \"I have read the above statement and I have been told that I can correct, alter or add anything I wish. This statement is true. I have made it of my own free will and volition\". **PLEASE NOTE**: Failure to warn an accused person of the fact that he is not bound to make such statement and that evidence of it might be given does not render a voluntary confessional statement inadmissible. It also does not affect the weight to be attached to it\--**S. 31 EA** **Identification parade** It is possible that mass arrest has been made in connection to an offence committed and the victim of the crime is not able to pin-point the suspect, hence an identification parade can be constituted. Identification parade is usually conducted **when the identity of the suspect is in doubt** or to defeat a defence of mistaken identity\-\--**IKEMSON v. STATE.** However, an identification parade is not a sine qua non in all cases where there is fleeting evidence on the identity of the suspect. In **IKEMSON v. STATE,** the SC stated that identification parade is only essential in these situations; - **KNOWLEDGE OF THE ACCUSED:** The victim or witness did not know the accused before and his first contact with the accused was during the commission of the offence - **TIME**: The victim or witness was confronted by the offender for a very short time - **OBSERVATION:** The victim in the time and circumstances might not have had full opportunity of observing the features of the accused **Instances where an identification parade will not be necessary** - Where by his confession, an accused person identifies himself as the offender - Where the offender is arrested at the scene of the crime while committing it or was pursued and arrested immediately thereafter - Where the offender was well known to the witness or victim before the commission of the crime. Where this is the case, any parade conducted would be for **RECOGNITION** and not identification as in **SAMUEL BOZIN v. STATE** - Where a case of alibi has been put forward by the suspect - Where there is strong and uncontradicted eye witness account showing the offence was committed by the accused person - Where the circumstances of the case has sufficiently and irresistibly married the offender to the crime and the crime scene **Types of identification** - Dock identification: if the accused is in the dock, the witness can be asked if he knows the accused. - Voice identification: if the accused/suspect made a lot of speech while committing the crime - Photograph identification/visual identification - Spontaneous identification - Fingerprints identification: this can be the best mode of identification of a suspect as not two persons have the same thumb impression. It is not predominant in Nigeria due to lack of facilities. - Handwriting - Palm prints **Difference between recognition and identification** Where the victim or the eye witness knew the suspect before the incident either by name or may have had contact with him before the incident, then it may raise the question whether there was an identification or a recognition\--**SAMUEL BOZIN v. STATE.** Therefore, the law is settled that where the suspect was known to the witness before the commission of the offence, the witness must mention this fact at the earliest possible opportunity, and does not have to wait for an identification parade. Where the victim or witness omits to mention at the earliest possible time the name of the person who committed the crime, where such person was known to him before the commission of the crime, the court must be wary of acting on such evidence given later unless a satisfactory explanation is given. The effect of such delay is that it makes the evidence of identity suspect and reduces the truth value of the evidence below acceptable and probative level. **PROCEDURE FOR CONDUCTING IDENTIFICATION PARADE** - **Presence of a senior officer**: A senior officer must be present and he is not to take part in the identification parade, his presence is only required - **Speaking with witness/complainant rule:** No officer is permitted to speak with the witness or complainant, **EXCEPT THE OFFICER IN CHARGE** and any such communication with witnesses/complainant MUST BE AUDIBLE. - It must be **done at the police station** - The **witness must have stated the features of the suspect** to the police which is based on this description that similar featured people would be brought for the parade - **Suspect + 8 persons rule:** The identification parade must consist of at least eight (8) persons + the suspect, who as far as possible resemble the suspect in age, height, build, complexion, general appearance and position in life and where there are two suspects to be identified, minimum of 12 persons - **Before parade seeing of suspects and persons to be paraded**: The witness must not see the persons (or suspects) to be paraded before the parade - **Form D48**: The suspect must be handed Form D48. The form consists of information in relation to his rights during the identification parade. - Exclusion of those not directly involved/the press - Line-up photograph is taken before the parade begins - Communication between witnesses BEFORE parade is prohibited - **Hand placing on shoulder rule**: If the witness identifies any of those paraded, the witness must place his hand on such person's shoulder and photograph of such will be taken. - **Individual identification rule**: If there is more than one witness, they must be brought in one after the other, i.e identification must then be done individually - **Verification rule**: After identification, another identification parade is to be taken with the person identified with different persons for the purposes of verification. - **Entry and Exist rule**: There should be separate entry and exit to the venue for the identification parade - **Room illumination rule**: The room for the identification parade must well illuminated/ lit - **Unusual physical feature**: Where the suspect has an unusual physical feature such as a facial scar, a tattoo or a distinctive hairstyle or hair colour which cannot be easily replicated by the other participants in the identification parade, steps should be taken to conceal that special feature. **Exhibit handling** During police investigation, certain items might have been seized from suspects. Such items are to be preserved for the purpose of conducting trial/prosecution. There is usually an exhibit list which would itemize all the materials collected from a suspect(s). There is also the exhibit register where exhibits collected and in police custody are recorded - a particular police station or division. There is the exhibit keeper who keeps custody of all the items in the custody of the police. There is then exhibit room where the exhibits are kept. The exhibit room must be a secluded place and can only be entered by authorized/designated officer. A tag is to be placed on each exhibit. Items which are seized by police officer requiring laboratory or forensic test is usually packed in an exhibit pouch. - **Owner/Third party interest:** Where any property has been taken from an arrested suspect, a police officer may upon request by either the owner of the property or parties having interest in the property release such property on bond pending the arraignment of the arrested suspect before a Court. - **Report to court upon refusal:** Where a police officer refuses to release the property to the owner or any person having interest in the property, the police officer shall make a report to the court of the fact of the property taken from the arrested suspect and the particulars of the property. - **Direction of the court**: The court to which a report is made, may if of the opinion that the property or any portion of it can be returned in the interest of justice to the safe custody of the owner or person having interest in the property, direct that the property or any portion of it be returned to the owner or to such person(s) having interest in the property. **LIST AND EXPLAIN THE CONSTITUTIONAL RIGHTS OF A SUSPECT AT THE POLICE STATION** The suspect has the following rights during investigation by the police: 1. Right not to be subject to torture that is dignity of human person -- **s.34 CFRN**. Right to decent cell, condition and facilities 2. Right to remain silent or avoid answering question until consultation with legal practitioner or any other person of his choice -- **s. 35(2) CFRN** when he is arrested or detained. 3. Right to be informed in the language he understands, the facts and grounds of his arrest or detention, in writing and within 24 hours -- **s. 35(3) CFRN** 4. Right to be brought to court within a reasonable time -- 24 (40km) or 48 hours depending on the distance of the court to the police station -- **s. 35(4) CFRN.** 5. Right to bail, if is a bailable offence by the police -- **s. 35(4) & (5) CFRN**. The police have no power to grant bail in capital offence. 6. Right to compensation and public apology (e.g publish in national newspaper) when unlawfully arrested by the appropriate authority -- **s. 35(6) CFRN** 7. Right not to be subject to unnecessary and unreasonable restrain when being arrested except under certain circumstances **NB:** there are 3 types of bail; police bail, bail pending trial and bail pending appeal The police bail can be done orally as no particular form is required but it is usually done as a letter with a letter head to the divisional police officer of the station. Police bail remains in force till suspect is arraigned upon which a fresh bail application would be made in court **Remedies/ options available when denied police bail** 1. Application to court for release from custody (bail) 2. Enforcement of fundamental human rights: cannot be struck out for lack of locus as its an exception. Also, filing of joint procedure i.e more than one person for this right isn't allowed (can be brought at FHC or SHC) see **s 46(1) CFRN** 3. Habeas Corpus procedure: a writ issued by court commanding a person detained to be brought to court (produce the body). This is brought by **motion exparte + affidavit + written address** **EXPLAIN HOW TO APPLY FOR ASSISTANCE FOR A CITIZEN UNDER THE LEGAL AID SCHEME** The legal aid scheme is set up by the **Legal Aid Act**. It is only available to indigent citizens and not in all proceedings. By **S. 7(1) AND THE SECOND SCHEDULE TO THE ACT**, legal aid is available only for the following criminal offences - In South -- Murder, Manslaughter, Maliciously wounding or inflicting grievous bodily harm, Assault occasioning actual bodily harm.\-\--**MMMA** - In North -- culpable homicide punishable with death and that not punishable with death, grievous tort, criminal force occasioning bodily hurt - Generally: Common assault, Affray, Rape, Stealing and armed robbery (aiding and abetting any of the above offences)\-\--**CARAS** **Eligibility** **S. 10(1) LAA** provides that only persons whose annual salary does not exceed the national minimum wage are eligible for legal aid; and pursuant to **S. 10(2) LAA** the board may in exceptional circumstances grant the aid to persons whose earnings exceed the minimum wage. The board can also give aid to a person on contributory basis whose wage exceeds 10 times the minimum wage Automatically, persons who do not earn any wages are entitled to legal aid. Application for legal aid is made to the **DIRECTOR-GENERAL** of the Legal Aid Council stating the: - Income of the client (supply particulars being of indigent); - Belief that the person is entitled and - Justiciability of the matter. In Lagos State in addition to Legal Aid Council, there is the office of the public defender -- **s. 3(3) ACJL**. There is a difference between legal aid and pro bono service, in that pro bono service is rendered by any legal practitioner while legal aid is rendered by the Legal Aid Council. **NB:** The application for legal aid may be drafted in a lawyer's letter headed paper as an indigent may be able to get a lawyer to help him write the letter without cost OR may be drafted by the indigent himself. Therefore, the letter will not be in a lawyer's letter headed paper. The application must state that the applicant does not earn up to the minimum wage and the offence must be one stated in the second schedule. The facts qualifying him for legal aid must be stated in the application. GODWIN ABAS NO 3, ANGWA ROGO ROAD, ABUJA. EMAIL: godwinabas\@gmail.com, TEL:+23456789098 Our ref: Your ref: January 14, 2022 The Director General, Legal Aid Council, No 5 Maitama Street, Abuja. Dear Sir, **APPLICATION FOR LEGAL AID** I, Godwin Abas apply for legal representation from the Legal Aid Council to assist me in conducting my defence in my upcoming case before the federal high court FCT. I was arrested for the offences of **stealing and affray** and I have been informed that I will be charged to court. My annual income is \#12, 500, as shown on my annual payment slip which is attached to this letter. Thank you. Yours faithfully, \_\_\_\_sign\_\_\_\_\_ Godwin Abas ENCL: Annual Payment Slip **BAIL APPLICATION AT POLICE STATION** MAY TAFARA AND CO Barristers and solicitors 2, sunshine way, Agege, Lagos Email: maytafara\@gmail.com, tel:+2345678909 Our ref: Your ref: 15^th^ January, 2022. The Divisional Police Officer, Maitama divisional police headquarters, 3 Tamelu Street Abuja Dear Sir, **APPLICATION FOR BAIL** I, Mayowa Aroyewun of the above named law firm hereby apply for the bail of A, B &C They were arrested by the police officers of Maitama divisional police on Jan 7 at their residence (you can include it) on allegations of car theft and illegal possession of firearms The suspects are clients of the firm and undertake to be present at the police station or at the court whenever their presence is needed. Mr ojo A, sha B and ray C who are the fathers of the suspects are willing to take them on bail and stand for them as sureties. Thank you. Yours sincerely, \_\_\_sign\_\_\_\_ Mayowa Aroyewun Legal practitioner For: May Tafara & co **JURISDICTION AND VENUE OF COURTS IN CRIMINAL TRIALS** There are three components of jurisdiction according to **MADUKOLU V NKEMDILIM** - The Composition/constitution of the court, i.e were the judges properly constituted and appointed - That the Subject matter is within the jurisdiction of the court - That it was commenced by due process and fulfillment of all condition precedents **NB**: Any defect on any of the above means that the court lacks jurisdiction. Jurisdiction is the authority of a court to decide matters brought before it and it is statutory. This is different from inherent jurisdiction which is the power to regulate proceedings and punish for contempt, etc **How do we determine jurisdiction of a court** - The law sets out the jurisdiction of the court (Constitution or other statutes) - Charge sheets/information (or both) before the courts **NB:** A court may have statutory jurisdiction but the charge sheet/information discloses that it lacks any of the above components of jurisdiction, there will be no jurisdiction **Types of jurisdiction** - Original and appellate - Concurrent and exclusive - Co-ordinate and supervisory: supervisory is the power of judicial review. - Limited and unlimited - **Procedural and substantive/ subject matter jurisdiction**: Procedural jurisdiction is the process by which the complainant institutes or initiates the subject matter before the court while substantive jurisdiction is the power of the court to hear that particular subject matter. A defect in the procedure of commencement can be waived or amended but a subject matter jurisdiction cannot be waived as the court ought to strike out such matter. Parties cannot confer jurisdiction on a court - **Territorial**: Jurisdiction over criminal cases arising within the geographical area or venue of the offence. A court may have substantive jurisdiction without having territorial jurisdiction. Example robbery at Imo state cannot be tried in the Enugu state High Court although it has substantive jurisdiction of robbery. This is cause crimes are territorial in nature - General and special. **TERRITORIAL JURISDICTION** Criminal trials are territorial. It is because courts are only seized with criminal matters that are committed in that state. Secondly, offences in a state are created by laws of the House of Assembly of the state. Thus, a state cannot legislate or make laws for another state. However, where offences are committed across states, any of the courts with subject matter jurisdiction where the series of offence were committed may try the case, even where the state was only entered into without any offence actually committed in that particular state--- **NJOVENS V. STATE**, **S12A CRIMINAL CODE**. But where an offence is only constituted under the Penal Code, it cannot be instituted in the South\-\--**AOKO V FAGBEMI, SECTION 36(12) CFRN**. The court in the south will not have substantive jurisdiction. **NB**: The principle that offences are territorial also has its application to the Federal High Court although there is only one FHC, but with judicial divisions across the country\-\--**S. 45 FHC ACT.** Thus, where all the elements of an offence were committed in a particular judicial division, that judicial division will have authority to hear such matter **except the CJ of the FHC makes an order that the matter be heard in another judicial division**, but where offences have initial and subsequent elements in different states, the matter is to be instituted in the judicial division of the FHC covering those states. This was the principle established in **IBORI V FRN**, here he was charged in another fhc other than where the offence was committed Where the subject matter of the offence is within the jurisdiction of the FHC but the offence has a national spread (like treason and treasonable felony), the matter can be brought before any judicial division of the FHC \-\--**ABIOLA V. FRN.** Also, some statutes e.g **terrorism act** require that the offence can be arraigned in any of the fhc **COURTS OF GENERAL CRIMINAL JURISDICTION** - Customary/Area Courts - Magistrate Court S/N - High Court of States/FCT - Court of Appeal (only appellate jurisdiction) - Supreme Court (only appellate jurisdiction) They are so called because they have power over all crimes and all persons, but there are still areas related to persons and subject matter that are removed from their jurisdiction. 1. **Customary Courts** -- Lagos: they have power to try Bye-laws of local government, Contempt in face of the court, Jurisdiction expressly conferred upon it. E.g. the **Environmental Sanitation Laws of Lagos**. Generally, appeals from customary court go to the High Court but **in Lagos state, appeals from the customary courts go to the Magistrates Court**---**S. 41 CUSTOMARY LAW OF LAGOS STATE** **MCQ**: The customary court of appeal has no original or appellate jurisdiction over criminal matters. **Area courts:** The area courts are constituted by Area Courts Edict and established by warrant under the hand of the Chief Judge of the state. Note that area courts apply to criminal litigation and district court is for civil. **Upper area court:** The jurisdiction to impose punishment of upper area courts in Abuja is unlimited except in homicide cases. It cannot try homicide cases and other capital offences. In FCT, it is only when the judge of the Area Court is a qualified lawyer that it can have jurisdiction over criminal matters and are bound by the rules of evidence. NB: The Area court shall have jurisdiction over the following persons\--**S. 15(1)(a)-(c) ACL**: - A person whose parents were members of any tribe indigenous to some parts of Africa and the descendants of such person. - A person, one of whose parents was a member of a tribe indigenous to Africa; and (an African-American can be subject to the jurisdiction of an area court because his parent(s) is/are member(s) of an indigenous tribe to Africa). - A person who consents to be tried by the court- A Britain can be tried before the area court where he consents to it. Hence, a person leaving in the north ordinarily is not subject to the area court. Criminal appeal from the Area Court Grade 1 and 2 in the north lies to the Upper Area Court and Upper Area Court to High Court. If it is civil appeal, it goes to Sharia Court of Appeal. 2. **Magistrate Court**: **Lagos,** governed by Magistrate Court Law 2009: There are no grades of Magistrate court in LAGOS, only one cadre. They can try all offences except capital offence. In Lagos, there is a limitation on the sentences they can impose, which is **14 years**\--**S. 29(5) MCL**. If the sentence provided for by the law creating the offence is 20 years, a Magistrate court cannot impose a 20 years sentence. It has to be 14 years or less than that as the sentencing power of the Magistrate court is limited to 14 years imprisonment. There is a difference between jurisdiction to try offences by the magistrate court and jurisdiction to impose punishment or sentences. If a Magistrate Court which possesses the jurisdiction to try offences imposes 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. The jurisdiction is over indictable and non-indictable offences, other than capital offences. **Magistrate Courts North:** check **s 6 ACJLK** for the different grades. See **s 19 ACJLK**, on the offences, the chief magistrate which is the highest **cannot impose a sentence exceeding 14 year**s and a fine of more than 300,000. They also have the power to impose canning as punishment. All the other grades of the mag court have the power to impose canning too. **Shariah Court**: This is applicable in the north. There's the upper and lower Shariah court. **S 11ACJL KANO,** says the upper Shariah courts shall have jurisdiction to all criminal matters where the defendant is; - a Muslim - a non Muslim submitting himself to the jurisdiction - where at least one of the defendants is a non Muslim and objects to being tried under Shariah law, the court won't have jurisdiction to hear the case of the non Muslim and may determine the case separately (he be moved to the appropriate court, i.e mag or high court) - where the offence jointly committed cannot be tried separately, the Shariah court shall transfer all of them to the magistrate court or court of competent jurisdiction. 3. **High Court (SHC/HC FCT):** **Section 272(1) CFRN** confers criminal jurisdiction on the SHC. Also has jurisdiction on criminal appeal from magistrate court. - Federal offences within its jurisdiction\-\--**S. 286(1)(b) CFRN** - The SHC share concurrent criminal jurisdiction with the FHC in the offences created under **s. 251(3) CFRN**. Also, with the National Industrial Court in **S. 254C(1) CFRN**. 4. **Court of Appeal**: The court of appeal, though a court of general criminal jurisdiction, has no original criminal jurisdiction but appellate. It takes appeal from High Court, Federal High Court, National Industrial Court and Court Martial. 5. **Supreme Court**: The Supreme Court is a court of appellate general criminal jurisdiction. It receives appeal from the Court of Appeal pursuant to section **233 CFRN.** B. **COURTS OF SPECIAL CRIMINAL JURISDICTION** - Federal High Court - National Industrial Court - Court Martial - Juvenile Court - Coroner's Court - International Criminal Court They are so called because they only have power over specific subject matter and persons. 1\. **Federal High Court** **Exclusive jurisdiction** in respect of treason, treasonable felony and allied matters---**S. 251(2) CFRN**. The FHC has exclusive jurisdiction to try treason, treasonable felony and allied matters offences because the offence was initially tried by a treason tribunal which subsequently in 1999 transferred its jurisdiction to the FHC exclusively. Please note: any allied matters to treason should be tried exclusively by the FHC\-\--**MANDARA V. AGF** **Concurrent jurisdiction** in respect of criminal causes and matters over which it has civil jurisdiction.---**S. 251(3) CFRN**. Any matter or cause listed in Section 251(1) that is an offence, the Federal High Court shall have concurrent jurisdiction with SHC---**MOMODU V STATE**, This is because of the express omission of exclusive in Section 251(3). However, other enabling statutes may confer exclusive jurisdiction on the FHC, e.g in section 251(1)(m) which deals with drugs, based on the fact that jurisdiction is statutory and the **NDLEA Act** in **section 26(1)** which has exclusively conferred jurisdiction on the FHC and it is only the FHC that should entertain such matters. In such case, the SHC will not have concurrent jurisdiction over drugs and poisons matters, **Terrorism Act**, **Money Laundering (Prohibition) Act**, **Counterfeit Currency (Special Provisions) Act.** - It is not all federal offences that will be tried in the Federal High Court, e.g offences under **robbery and firearms act** which is to be of state application 2\. **National Industrial Court** **Section 254 C (5) CFRN** confers criminal jurisdiction on the National Industrial Court. It provides that the NIC shall have and exercise jurisdiction over criminal causes and matters arising from any cause or matter of which jurisdiction is conferred on the NIC by this section or any other Act of the National Assembly or any other law. The jurisdiction in criminal matters pertain to matters arising from labour and industrial disputes. Appeal from the decisions of the NIC in criminal matters shall lie as of right to the Court of Appeal\--S. 254C(6) CFRN 3\. **Court martial** The court martial entertains only matters against persons subject to **SERVICE LAW**---**S. 130 Armed Forces Act**. Service Law here entails Nigerian Army, Navy, or Air Force. NB: The Police and Custom officers are not subject to service law\-- **OLATUNJI v. STATE**. The court has jurisdiction over military offences (insubordination, absence from duty, drunkenness, cowardly behaviour) and civil offences (offences punishable by the laws of the state e.g rape, assault, murder, etc) they are called civil cause they are not military in nature. - Can a person subject to service law be tried in the civil court? Yes, for civil offences. But the person cannot be tried for military offences in a regular court. Where a person subject to service law commits a civil offence, example assault, such person can be tried first by a court martial because it is provided for in the Armed Forces Act and it has jurisdiction. Thus, such person can be tried and sentence meted out. Also, he can be tried by the regular courts thereafter for the same civil offence and the civil court can also punish but will take into consideration the punishment given by the court martial in awarding punishment. (Thus a plea of *autre fois convict or acquit **Offences Committed in the Course of the Same Transaction:** These are offences even though distinct but are committed in the same transaction. For instance, A with intention to rob a bank snatched B's car after the robbery; at a police check point, shot at C, a police man to death. Thus, the offences arising from this transaction can be charged in one charge sheet and tried together (armed robbery and murder). Example in the course of executing a common purpose, other offences may be committed. c. **Where it is Doubtful which of the Several Offences the Facts which can be Proved Constitute:** this arises where doubt arises as to the offence which a single fact or omission or series of facts or omission if proved will constitute. It is possible that a single fact can lead to stealing, criminal breach of trust, obtaining by false pretence, and being in possession of stolen property. When there is doubt, these offences can be contained in one charge sheet in the alternative d. **Offences of the same or similar character:** Offences are said to be of the same kind where they are identical; similar is if they share or exhibit some common features. They are so similar if evidence for one offence would be admissible to prove the other offence\--**DAN V. KANO NATIVE AUTHORITY**, in this case, the accused was charged with seven counts which are failure to issue receipt for money paid, charging excessive interest on money lent, and failure to keep proper account. The accused contention that the charge was bad for misjoinder of offences was disregarded by the court. e. **Offences Constituted under Different Laws:** if the acts or omissions alleged constitute an offence falling within two or more separate definitions in any written law for the time being in force under which offences are defined or punished, the person accused of them may be charged with and tried at one trial for each of such offences. For instance, under the Criminal Code and Penal Code, the offences of manslaughter and culpable homicide not punishable with death respectively, are constituted while the offence of causing death by dangerous driving is constituted under the Road Traffic Act/Law. However, the accused will not be convicted for more than of such offences in compliance with the principle against double jeopardy **Rule against misjoinder of offenders** The general rule is that every person who is alleged to have committed an offence shall be charged and tried separately for the offence alleged against him. If XYZ & A committed the offence of stealing, they should all be charged separately. (Principal offender, accessories after the fact, receiver of stolen property) **Exceptions to the rule against misjoinder of offenders** Note **sections 7, 8 and 9 of Criminal Code.** a. **Persons accused of jointly committing the same offence:** For instance if A, B & C beat up D, then A, B & C should be charged together in the same charge sheet. In **OKOJIE V. COP**, the accused persons being police officers had assaulted the complainant. They were charged on the same charge sheet and their contention that the charge sheet was bad for misjoinder of offenders was disregarded. b. **Persons accused of committing different offences in the course of the same transaction:** For instance A, B & C went into a house and robbed the occupants; B raped one of the occupants. In that case, they can be charged in same charge sheet for stealing and conspiracy to steal and B should be charged separately for rape (in a separate count not charge sheet). NB: that were A, B, C & D had agreed to rob a bank and had actually robbed the bank and after they had gone their separate way, A decides to rob the neighbouring house, they will all be charged for conspiracy and robbery of the bank on the same charge sheet. However, A that robbed the neighbouring house will have a separate charge sheet in addition to the other one. The important point to note is that there should not be break in transaction. A's subsequent robbery is a break in transaction. **Haruna V State** c. **Persons accused of committing an offence and persons accused of aiding, abetting or attempting to commit the said offence**: In **NJOVENS V. STATE**, the police who aided and abetted the offence were charged with those that committed the offence. The police officers had raised objection on such joinder. The expert upheld the validity of the charge as the police officers fall into the category of those that aided and abetted the offence. This is where there is complicity as found in s. 7 Criminal Code on parties to an offence. d. **Persons accused of committing the same offence in the course of the same transaction**: when two or more persons commit an offence or a series of offences in the course of the same transaction, they can be charged and tried together. This is similar to the first exception and still under s 7&8 cc e. **Persons accused of committing offences that are related one to the other**: ***Section 151(b) ACJL*** is to the effect that where a person is accused of theft, criminal misappropriation, criminal breach of trust and another person is accused of receiving or retaining or assisting in the disposal or concealment of the subject matter of such offence, they can be tried together. Still under s 7 cc f. **Persons accused of offences committed during a fight or series of fights arising out of another fight and person accused of abetting any of these offences maybe charged and tried together** **Effect of a Defective Charge:** The effect of a defective charge is dependent on whether the defect is minor or fundamental. If the defect was discovered before judgment, then amendment can be made, but when the defect was discovered after judgment, it will not lead to the setting aside of a trial unless the defect is fundamental as to mislead the accused as to the state or nature of the offence or the accused was prejudiced in the conduct of his defence. Grounds for objections include; Non-existent law-**S. 36(12) CFRN, AOKO V FAGBEMI**, Where accused has been previously charged on same count or charged and acquitted or pardoned, Where the accused lacks legal capacity, Violation of jurisdiction, Against the rules of drafting, limitation, locus, etc **Amendment of charges** Prosecution can amend a charge at any time before judgment and even on the Day of Judgment. It can be made by the drafting authority or by the court suo moto. Amendment of charges can be made before arraignment and after arraignment. **Amendment before arraignment**: Generally when an accused has not been arraigned and there is need for amendment, the prosecution need not seek the leave of court via an application, this is because at the stage before arraignment, the accused is not even aware of the charge against him. So, the question of his being misled or suffering injustice would ordinarily not arise. However, if charges have been filed and the amendment is substantial, the leave of the court should be sought. **Amendment** **After arraignment of the accused** (the accused has taken his plea) there should be an application for amendment of the charges. **Procedure for amendment before arraignment** - File the amended charge and serve the defendant - On the day fixed for hearing, present both before the court and seek by way of an oral application to withdraw the old one. - Oral application should read thus: "My Lord, there are two charges before this Honourable Court, one is dated\...\...\...and filed...\...and the other is dated....... And filed..... My Lord, we seek leave of this Honourable Court to withdraw the charge dated\...\...\....and filed..... and for the defendant/accused to take his plea on the charge dated......... and filed............" The important thing is that the defendant must have been served with notice of the charge **Procedure for amendment after arraignment (Post-amendment requirements) LERARAW** - **Leave of court**: Leave of court must be sought to amend a charge and this is by an application (by motion on notice) for leave of court to amend the charge, this should be supported by an affidavit and a written address. The defence can object to the amendment. The court has discretion to grant or refuse the application for amendment. - **Endorsement**: A note of the order for amendment shall be endorsed on the charge which in its amended form is deemed to be the original charge. This means that the amendment dates back to the date of the original charge and, in fact, shall be treated as having been filed in amended form - **Read and Explaining of the charge:** After the grant of application for amendment and the charges have been amended, the amended charges are to be read and explained to the defendant(s)---**Youngman v COP** - **A fresh plea/consent:** After reading the new charge to the accused person, he takes his plea afresh. Where the defendant is to be tried in the magistrate court, and the accused has the right of election whether he should be tried before the court, a fresh consent must be obtained. - **Readiness to be tried on the amended charge**: Thereafter, the court must ask the defendant whether he is ready to be tried on the amended charge. If the accused says he is not ready, the court shall consider his reasons. (and if it deems fit order an adjournment but if the defendant is ready, the trial would continue) - **Right to Adjournment entitlement**: The defence counsel or prosecution can make an application (simple application not on motion) for adjournment. The party seeking adjournment is entitled to it if proceeding immediately with the trial on the amended charge will be prejudicial to him **S. 36(6) (b) CFRN**. - **Witness recall**: Either the prosecutor or accused person may call or recall any witnesses (who may have given evidence to testify) again **Effect of failure to comply with post-amendment procedure** will depend on whether there was a miscarriage of justice, and where there was, it renders the trial null, void and of no effect. The appeal court on appeal against conviction will set the conviction aside and a retrial may be ordered\-\--**PRINCENT V. STATE** **Objection to defective charges** **S 158 acjl lagos and 211 acja** says objections on grounds of an imperfect charge would not be taken during trial unless the defendant was misled by such error. Thus, omissions as to particulars required to be in the charge or errors aren't material. A defective charge is when a charge is not in compliance with the rules of drafting and the effect is dependent on whether the defect is minor or fundamental. The general rule is that a defect in a charge will not lead to the setting aside of a trial unless the defect is fundamental as the accused was prejudiced in the conduct of his defence. In **AG WESTERN REGION V. CFAO** where the law under which the accused was charged was not provided for and a conviction obtained. On appeal, the court quashed the conviction on the ground that such failure was a fundamental error. In **OGBOMO V. STATE**, the court held that failure to include (Special Provisions) to the Robbery and Firearms Act 1970 was not fundamental and the appellant was not prejudiced in his defence. **Time for raising objection:** Objection as to procedural jurisdiction is to be raised timeously, i.e **before taking plea** by the accused person (For the defect that does not go to the jurisdiction of the court, it must be raised before the accused takes his plea) -**IKOMI V. THE STATE**. Where an accused has taken plea or pleaded to the charges, he is taken to have submitted to the jurisdiction of the court. However, there are some defects that go to the jurisdiction of the court; objection in that regard can be raised at any time, this is called substantive jurisdiction **NOTABLES** In Lagos, **S. 260(2) ACJL** provides that an objection to the **sufficiency of evidence** disclosed in the proof of evidence attached to the information shall not be raised before the close of the prosecution's case. The above states that if the objection is on insufficiency of evidence disclosed in the proof of evidence, then it can only be raised after prosecution has closed its case and not before the defendant pleads to the charges. Proof of evidence is as relate to the documents which are to accompany information at the High Court of southern states like the unedited statement of the accused, a copy of the proposed charge, list of witnesses and exhibits. This determines whether the prosecution has a prima facie case. Thus, on the day fixed for hearing, the prosecution asks the court to take cognizance of the information. If the court takes cognizance, ordinarily the accused can raise objection(s) but **s. 260(2) ACJL** provides otherwise. The desirability of this section can be seen from the fact that unlike before where in high profile case, the accused counsel will bring application to quash the indictment of which can be appealed up to the Supreme Court. Hence opportunity is given to prosecution to lead evidence to prove his case. This does not derogate from the right of the accused to object. There is however an exception when the objection is based on the jurisdiction of the court. It can be raised before plea is taken. Note the following as it relates to Lagos alone. **An application for stay of proceedings in respect of a criminal matter before the Court shall not be entertained**---**S. 306 ACJA, OLISA METUH V. FRN** **Tips for drafting** - In the north under the penal code, offences are more descriptive as you stretch the particulars of offence further - When charging for **murder** never use unlawfully killed but use MURDERED - You use UNLAWFULLY KILLED for MAN SLAUGHTER - When charging for rape in the south you can say raped or had unlawful sexual intercourse, north can say unlawful carnal knowledge without consent - Time is only of essence and should be in the particulars/statement for the offence of house breaking and burglary - For a charge of conspiracy, say that they conspired to do sth, e.g conspired to commit the offence of armed robbery **Draft of charge in magistrate court in the south, HC NORTH AND FHC** IN THE MAGISTRATE COURT OF ENUGU STATE IN THE ENUGU MAGISTERIAL DISTRICT HOLDEN AT ENUGU CHARGE NO: MC/23/25 BETWEEN COMMISIONER OF POLICE...............................................................COMPLAINANT AND ABC..................................................................................................DEFENDANT **COUNT 1** That you **ADPOPS** Dated this\...\.....day of\_\_\_\_\_\_\_\_\_\_\_, 20\_\_..............SIGN................ Mayowa Aroyewun Investigating Police Officer For: Commissioner of Police **MAGISTRATE COURT NORTH & FCT** IN THE MAGISTRATE COURT OF KANO STATE IN THE KANO MAGISTERIAL DISTRICT HOLDEN AT KANO CHARGE NO: MC/24/26 BETWEEN COMMISSIONER OF POLICE......................................................................COMPLAINANT AND 1. TUNDE AHMED 2. AL- AMEEN SULYMAN...................................................................................DEFENDANTS I, Mayowa Aroyewun, Chief Magistrate, hereby charge you 1. TUNDE AHMED 2. AL- AMEEN SULYMAN as follows: **COUNT 1** That you **ADPOPS** **COUNT 2** That you **ADPOPS** I hereby direct that you be tried for the said offences by this court Dated this\.....day of\_\_\_\_\_\_\_\_\_\_\_\_\_, 20\_\_..........sign........... Mayowa Aroyewun Chief Magistrate **HIGH COURT SOUTH and HIGH COURT FCT** IN THE HIGH COURT OF LAGOS STATE IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS CHARGE NO: HC/LS/1234 BETWEEN THE STATE OF LAGOS................................................................................COMPLAINANT AND RIDWAN SHOKOYA..............................................................................................DEFENDANT At the session of the High Court of Lagos State holding at Lagos on the\.....day of\_\_\_\_\_\_\_, 20\_\_, the court is informed by the Attorney- General of the State on behalf of the state that you RIDWAN SHOKOYA is charged as follows; **COUNT 1** **STATEMENT OF OFFENCE (OS)** Robbery punishable under section \_\_\_ of the criminal code **PARTICULARS OF OFFENCE** **ADPP** Dated this\...\...day of\_\_\_\_\_\_\_\_\_\_\_ 20222.............sign........... Mayowa Aroyewun Director of Public Prosecutions For: Attorney-General of Lagos State **BAIL PENDING TRIAL** Bail is a temporary release of an accused/defendant/suspect from custody to sureties on condition given to ensure the accused/defendant/suspect's attendance in court or some other places pending the determination of the case or investigation **ALL OFFENCES ARE BAILABLE BUT SOME ARE MORE BAILABLE THAN THE OTHERS** **Types of bail** 1. Police Bail (Bail Pending Investigation or **Administrative Bail**) 2. Bail Pending Trial 3. Bail Pending Appeal **Police bail**: Police bail is the temporary release of a person arrested and detained in connection with a crime. Bail by the police is that pending investigation. Bail is a constitutional right.\--**S. 35(4) and (5) CFRN** and a suspect ought to be granted bail if it is a bailable offence. The first thing a legal practitioner should do when a suspect is arrested is to apply for bail if it is a bailable offence. In recognition of this constitutional provision, the Police is empowered to grant bail to arrested persons where it is impossible or impracticable to bring them before a Court within a reasonable time as required by the constitution. The police have powers to grant bail other than for an offence of a capital nature **Procedure for police bail** There are no laid down procedure for application for bail before the police station. It can be made by the suspect or by another person. It can be in writing or orally but in practice, it is usually in writing. Bail pending investigation is revocable. The police bail can be revoked by the police if the terms upon which the bail was granted was not fulfilled. Once the bail has been revoked by the police it is only the court that can grant the bail again. Once a suspect has been arraigned in the court, the police bail elapses. The legal practitioner should then apply for bail from the court. **NB:** A legal practitioner shall not stand or offer to stand bail for a person **R 37 RPC** **Options available to the suspect upon refusal of police bail** When a suspect is refused bail, there are 3 options open to the suspect: - **FREP:** He may apply to the High Court of the state where he is being detained under the Fundamental Rights (Enforcement Procedure) Rules 2009 to enforce his right to liberty. Regulated by **S. 46(1) CFRN** and the Fundamental Rights (Enforcement Procedure) Rules 2009. - **Habeas Corpus:** He may apply to the HC of the state where he is being detained for release from unlawful detention under Habeas Corpus procedure. Application is by way of motion ex parte, supported by affidavit deposed to by suspect and a written address (MEP + A +WA). - Apply to court for release from custody **Magistrate:** ONLY IN LAGOS. He may make an application to a magistrate having jurisdiction over the offence for release from custody. That is, he may apply to a magistrate having jurisdiction over the offence for which he is detained for an order of the court directing the officer to bring him before the court -- s. 18(1) ACJL **Sample draft of application for bail** May Tafara & Co Legal Practitioners and Solicitors Address: No 2 Law School drive, Victoria Island, Lagos Website: [www.maytafara.com](http://www.maytafara.com) Email: Tel No: 07053531239 Our Ref: AAAAA/201/2019 Your Ref......... Date: 14 March 2022 The Divisional Police Officer, Alagbado Police Station, Alagbado, Lagos Dear Sir, **APPLICATION FOR BAIL** We are solicitors of Godwin Abass under whose instruction we are writing, our client was arrested by the Alagbado police officers police on the 1st day of January, 2019 on allegation of theft, and is currently in police custody. My client undertakes to be present at the police station or in any court whenever his presence is required. The brother to my client, Mr. Micheal Abass, the secretary of the Ido Local Government Council, is available and willing to stand as surety and promises to fulfill all bail conditions. Thank you. Yours faithfully,.........sign.......... Mayowa Aroyewun Associate May Tafara & Co. **Bail Pending Trial** This is the process by which an accused/defendant is released temporarily from custody to sureties on conditions given to ensure his attendance in court whenever he is required, until the determination of the case against him. It is granted only by the court after proceedings have commenced and can only be made after suspects have been arraigned in court. Thus, if the suspects are on police bail before, upon arraignment the bail lapses. Suspects or counsel have to apply for bail pending trial. Counsel can notify the court as to the fact that the accused person has a subsisting police bail and the court may grant that the bail su

Mayowas Criminal Litigation Note.docx

Document Details

Tags

Related

Full Transcript

Upgrade to continue