CRIMINAL LITIGATION

CLASS NOTE
Compiled By SRC
Academic Committee
NLS YENAGOA '25
Resources:

 Class Notes

 Class slides

 Recommended Textbooks
WEEK THREE: OVERVIEW OF CRIMINAL
LITIGATION

Scope of Criminal Litigation

Criminal litigation is simply the application of substantive criminal law in
courts. Criminal litigation dwells more on procedure while criminal law stricto
sensu deals with substantive law relating to offences against the state.
Without the existence of criminal law, there cannot be criminal litigation.
Criminal litigation covers the entire process from when complaint is made to when judgement is
given.

Criminal litigation devolves from two words: “Criminal” and “Litigation.”

On the one hand, criminal stems from the word “crime” which is also
synonymous to “offence.” Both terms can be defined simply as any act or
omission which the law forbids and against which the law prescribes
sanctions or punishment.

Under S. 494 ACJA, an offence means “an offence against an Act of the
National Assembly.”

Under S. 371 ACJL Lagos, an offence means “an offence against any
enactment in force in Lagos State.”

Under S. 2 ACJL Kano, an offence means “an act or omission the doing of
which violates criminal law.”
Under S. 2 Criminal Code, an offence is an act or omission which renders the
person doing the act or making the omission liable to punishment under this
code or under any Act or Law.

As a general principle, a crime must be provided for in a written law or

enactment with the stipulated punishment thereto. See S. 2 Criminal
Code; S. 28 Penal Code; S. 371 ACJL Lagos; S. 36(12) CFRN 1999 (as
amended); S. 494 ACJA; S. 2 ACJL Kano; Aoko v. Fagbemi; Asake v.
Nigerian Army

There is, thus, no customary criminal law as customary law in its true
sense is not written. Omoju v. FRN.

Litigation, on the other hand, generally refers to legal proceedings in a court,

or a judicial contest to determine and enforce legal rights or to ascribe legal
obligations.

Flowing from the above, Criminal litigation encompasses the gamut of

procedure from start (arrest) to conclusion (judgment, sentence and appeal)
to establish guilt or innocence of a suspect. Every criminal proceeding starts
with searches and arrest, after which arraignment follows. If an arraignment
is defective, it nullifies the entirety of the proceedings.

Arraignment commences with placing the defendant in a dock unfettered,

the charge is read and explained to him in the language he understands. If
he does not understand the charge, an interpreter is gotten for him, and he
is made to make a plea which the court records in the defendant’s own
language.

Sources of Criminal Litigation

There are multiple sources of criminal litigation. All of which are delineated
as follows.
Primary/Principal Enactments

These are the purely procedural legal instruments that provide for the
process and procedure of the conduct of criminal litigation. They include:

Administration of Criminal Justice Act 2015. This is applicable only to

Abuja, federal offences and federal courts.

S. 2(1) ACJA – the procedural enactment applies to offences created by an

Act of the National Assembly. This would include drug offences, money
laundering, economic and financial crimes.

Where a federal offence is being tried in any court, including a state court,
the ACJA applies. An example is the EFCC Act which provides that the state
high courts can try the offences provided therein but the ACJA will apply.

Note, the provisions of the Robbery and Firearms Act, though a federal
enactment, is sui generis as it is enacted to operate as a state law. Thus,
ACJL of the respective states apply.

ACJA applies generally in the Federal High Court as the court generally tries
federal offences. Also, S. 33(1) Federal High Court Act provides that criminal
proceedings should be regulated by the Criminal Procedure Act (which has
now been repealed by the ACJA, pursuant to S. 493 ACJA).

The Code of Conduct Tribunal also tries federal offences and will apply the
ACJA in its proceedings. S. 2(1) ACJA.

ACJA does not apply to a court martial, though. S. 2(2) of ACJA. This is
notwithstanding that the court martial tries military offences under the
Armed Forces Act which is a federal enactment.

Administration of Criminal Justice Law of the different states of the

Federation replacing Criminal Procedure Law and Criminal Procedure
Code. For the purposes of Bar II, the Administration of Criminal Justice
(Repealed and Reenactment) Law of Lagos State 2011, (as amended 2021)
represents the entire South, while the Administration of Criminal Justice
Law Kano State 2019 represents the entire North.
The ACJL of Lagos and Kano states will apply generally to all offences created
by state law and to armed robbery, pursuant to the provisions of the Robbery
and Firearms Act.

Secondary Enactments

These are legislation that make specific rules relating to criminal procedure
but are not of generally applicability.

Constitution of the Federal Republic of Nigeria, 1999 (as amended):

Although the Constitution is the grundnorm, it is nonetheless a
secondary enactment for the purposes of criminal litigation as it does
not cover the field. All criminal procedure must, however, be in
conformity to the provisions of the Constitution. Instructive provisions
are Chapter IV which deals with fundamental human rights. More
specifically, S. 35 CFRN 1999 guarantees personal liberty of suspects
and prohibits torture while S. 36 CFRN 1999 foregrounds the principle
of fair hearing. Chapter VII also creates the courts in which criminal
litigation takes place, their composition, constitution and jurisdiction.

Supreme Court Act Cap S. 15 LFN 2004

Court of Appeal Act Cap C 36 LFN 2004

Federal High Court Act Cap F12 LFN 2004

High Court Laws of respective states

Magistrate Court Laws

Area Court Act, 2021

Supreme Court Rules

Court of Appeal Rules 2021

High Court of Lagos (Appeal Rules) 2004

 Practice Directions of courts in furtherance of the ACJA

Child Rights Act and Child Rights Law of respective states

Coroners Laws

Armed Forces Act

Police Act Cap P19 L.F.N. 2020

Anti-Torture Act, 2017

Nigerian Correctional Services Act, 2019

Application of English High Court Rules of

Procedure and Practice in Criminal Matters

English High Court rules may apply vide direct or indirect application. Under
S. 492(3) ACJA, where there are no express provisions about procedure in the
ACJA, the court may apply any procedure that will meet the justice of the
case.

Similarly, S. 262 ACJL Lagos, where there is a lacuna in the rules of

procedure, the court will apply any rule to achieve substantive justice.

Also, S. 467(g) ACJL Kano provides that where there is a lacuna, the court is
allowed to apply any rule that meets the justice. However, S. 35 of the High
Court Law of Northern Nigeria allows courts in the region to apply any
procedural law provided that it does not apply those of the High Court of
England, mutatis mutandis.

Thus, while courts in the South, the FCT and Federal courts can apply English
rules of practice and procedure if there is a lacuna on a matter of adjectival
law, such is prohibited in Northern Nigeria, pursuant to S. 35 High Court Laws
of Northern Nigeria 1963.
Some of the examples in which English rules of practice and procedure are
applied in Nigeria are:

Change of plea by accused as seen in Board of Customs & Excise v.

Hassan: An accused can change his plea at any time until judgement.
The procedure is by leave of court by reference to the procedure in the
High Court of England.

Application for bail in High Court after refusal in Magistrate as seen in

Simidele v. COP (1966): This is done by summons and not a motion in
the South, but by either summons or motions in the North.

Procedure to follow in making application to a High Court judge for

consent to file an information as seen in Ikomi v The State.

Judicial Interpretation of Statutes

Judicial interpretation can apply to both primary and secondary enactments.

Whatever the pronouncement of the court on any statutory provision, in its
interpretative role, is the law on that provision subject to the decision of an
appellate court. The types of interpretation are literal rule, golden rule,
mischief rule and ejusdem generis rule.

The interpretations courts give to statutes formed part of the criminal trial
process.

In FRN v. Ibori, the Court of Appeal held that criminal case must be filed
where the offence took place. Prosecutors can no longer engage in forum
shopping by filing cases at their preferred courts. The court held that taking
Ibori from Asaba to Kaduna amounts to forum shopping and is utter malafide
– doctrine of forum conveniens.

In Bank of England v. Vagliano Brothers (1891) AC 107 at 144 -145, Held -

the language of a statute must be observed to know their ordinary and
natural meaning. See: Garba v. FCSC; Bronik Motors Ltd v. Wema Bank Ltd.
Terminologies in Criminal Litigation
These are some important terminologies and general notes under them.

Parties

In Nigeria, the “complainant” is the State, and this may come under many
forms, depending on the court and jurisdiction. For instance, State of Lagos
in Lagos High Court, Federal Republic of Nigeria in Federal High Court.
The next party is the defendant. The full name and alias of such person is
written and described as “Defendant”. See COP v. Tobin.

Draft Example

THE STATE OF LAGOS ………………………………………………...

COMPLAINANT

AND

JOHN DOE ……………………………………………………………… DEFENDANT

Types of Criminal Courts

There are two classifications of criminal courts in Nigeria.

Courts of general criminal jurisdiction that have unlimited jurisdiction

to try crimes. They are:

High Court

Magistrate court

Sharia court

Customary Court
 Area court/district court

Courts of special criminal jurisdiction whose powers to try offences are

limited by statute. They are:

Federal High Court

Court martial

Juvenile court

Coroner’s court

Other special tribunals like Code of Conduct Tribunal

In the above (2) courts, jurisdiction is circumscribed to criminal matters

provided by special laws.

Sitting of court

The court sits from 9am or so soon thereafter. There are juridical and non-
juridical days. Juridical days are days in which the court can sit, and these
are from Mondays to Saturdays. Non juridical days are Sundays and public
holidays. This is by virtue of S. 15(5) of the Interpretation Act which defines
“holiday” as Sunday and a public holiday.

Furthermore, S. 50 High Court Law of Lagos State stipulates that the court
can sit on any other day except from Sunday and a public holiday.

According to the court in Balogun v. Odumosu, proceedings of a court held on

a non-juridical day (dies non juridicus) is a nullity. Albeit there are important
exceptions.

A court can sit on a non-juridical day with the consent of both parties
pursuant to Ososami v. COP. The court cannot impose, and the parties
must agree.
 Court may sit on a non-juridical day if statute allows it. S. 40(1)-(2)
Magistrate Court Law of Lagos.

In election petition matters, as held in Falae v. Obasanjo.

Setting of Court

This has to do with the physical composition of a court.

Bench: this is the elevated podium in front of the court room where the
presiding Judge(s) or Magistrate sits to dispense justice. It is where the
judge sits or where the entire body of Judges sit.

Bar: part of the courtroom where lawyers who are in court normally sit.
In a superior court, a lawyer can only sit at the bar if he is robbed and
must either have a case to handle or appear. The front row of the bar is
normally left for SANs and AGs where there is no inner bar. The bar is
usually located between the Registrar’s desk and the gallery. The bar
may also mean all the lawyers entitled to practice in Nigeria. 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.

Registrar’s Desk: located directly beneath the bench and before it. The
Registrar sits along with the Court Clerk or other Clerical Assistants.
The Registrar normally backs the Judge and only stands up to face the
Judge when his attention is required by the Judge.

Gallery: part of the courtroom where litigants, spectators and all other
persons who are visitors to the court usually sit. Lawyers who have no
matter in court or who are unrobed sit at the gallery. It is located
directly behind the bar.

Dock: enclosed part of the courtroom where the accused person is

placed during his trial. It is exclusively reserved for the accused
person. There is no rule as to which side of the Judge the dock is
 located. Where the accused person testifies from the dock, he will not
be cross-examined but when he testifies from the witness box, he shall
be cross-examined. However, the probability attached to such
evidence will be low if he testifies from the dock. In a joint trial, all
accused persons enter the dock except where the number outstretches
the space in which case they may spill over and crowd around the
dock. Usually on the lefthand side of the judge.

Witness Box: part of the courtroom where a witness is placed to testify

but usually smaller than a dock. It is usually located between the bar
and the bench so that the lawyer and the Judge can look at the witness
when he is testifying. There is no rule as to which side of the Judge is
located. Only one witness can be in a witness box at a time. Usually on
the righthand side of the judge. The witness can decide not to swear
on oath and affirm and still give evidence – S.207 & 208 Evidence Act.
A witness cannot leave the box until the judge asks him to leave or
discharge him. Where he is asked to leave, he may still be invited e.g.,
court did not finish taking his testimony. Where he is discharged, he is
fully done with the court.

The complete setting of the court is wherever the judge sits with a complete
physical composition as above. It does not matter that a court does not sit in
a stipulated location or venue. Where the court is properly composed and the
judge sits with a complete paraphernalia, such sitting is valid.

Publicity of Criminal Trial

Criminal proceedings are required to be held in public. This is pursuant to S.

36(4) of CFRN 1999 (as amended). The place of a criminal trial is expected to
be an open court where the general public can have access. S. 259(1) ACJA;
S. 200 ACJL Lagos; S. 261(1) ACJL Kano.

However, there are exceptions to this principle, that is, circumstances in

which a criminal proceeding may not be openly accessible to the public.

Where a statute expressly requires that the public be restricted. For

instance, S. 13(1) Recovery of Public Property Special Military Tribunal
Decree 1984.
 On grounds of public policy, public decency or expediency. S. 259(2)
ACJA; S. 201 ACJL Lagos; S. 261(2) ACJL Kano.

Where the evidence of a person who has not attained the age of 18
years is to be heard in relation to an offence against morality. S. 260
ACJA; S. 262 ACJL Kano. In Lagos, the principle applies where the young
person has not attained the age of 17. S. 202 ACJL Lagos. In such
circumstance, the court may direct that individuals who are not
members/officers of the court, parties to the case or legal practitioners
be excluded from the court.

The court may exclude other persons asides the parties to the case
and their legal practitioners in the interest of public safety, defence,
public order, public morality, the welfare of person who has not
attained the age of 18 years or for any other special reason in which
publicity will be contrary to the interest of justice. S. 36(4)(a) CFRN
1999.

Proceedings or any part of it may be held in private where a Minister of

the Federation or a Commissioner of a State satisfies the court that it
will not be in the interest of the public for the matter to be publicly
disclosed. S. 36(4)(b) CFRN 1999.

Note:

In Ejigbo v. State, it was held that arraignment marks the beginning of trial,
and where a plea was taken in chambers, such plea was an aspect of the trial
and pursuant to S. 36(4) & (5) of CFRN 1999 must be held in public.

In Oviasu v. Oviasu, the court defined “trial in public” to mean “a place

where there is unfettered ingress and egress of the members of the public.”
Thus, in determining if the trial was held publicly, it must be known whether
the public had unrestricted access to the place and whether any member of
the public was denied access.

An order excluding the public from trial under any of the above exceptions
shall not apply to bona fide journalists or messengers, clerks and others who
attend the court by virtue of their employment, unless expressly stated by
the court. S. 261(1) ACJA; S. 203 (1) ACJL Lagos; S. 263(1) ACJL Kano. Where
such order excluding these people is made, the court shall record the
grounds on which it is made. S. 261(2) ACJA; S. 203 (2) ACJL Lagos; S. 263(2)
ACJL Kano.

Note also that infants or children are not generally allowed into court during
trial unless the child is the defendant or is a material witness, or for the
purposes of justice and necessity. S. 262 ACJA; S. 204 ACJL Lagos; S. 264 ACJL
Kano.

Notes about Criminal Litigation

Criminal trials are territorial. Crime has to be tried where the element of
crime is committed, where the defendant was arrested or is present. Where
there are multiple elements of an offence committed in various jurisdictions,
any of the states can exercise jurisdiction. Njovens v. State; Nyame v. FRN;
Haruna v. State.

If an offence is committed outside Nigeria with no element of the crime

present in the country’s geography, the court in Nigeria cannot sit. See.
Mattaradona v. Ahu. Such suspect has to be extradited to the country where
it is committed.
 WEEK FOUR: SUMMONS, SEARCHES,
ARREST AND CONSTITUTIONAL
RIGHTS
There are broadly two different ways of securing and compelling the
appearance of a defendant before the court which will try him.

Summons

By arrest

Arrest with warrant.

Arrest without warrant.

Summons
This is an order in writing commanding the person named therein to appear
in court on a named date and time to answer to allegations of crime made
against him or her. See S. 113 ACJA 2015; S. 80 ACJL Lagos 2015 as
amended; S. 130 ACJL Kano 2019. Arrest implies confinement; summons is
simply an invitation.

A summons is usually preceded by a complaint laid before a magistrate or a

judge showing that the person named therein is suspected to have
committed an offence. A complaint by a police officer may be oral or in
writing and need not be on oath. S. 112 ACJA. A court may issue a summons
in relation to a crime within or outside the country. However, such offence
must be triable within a state or the FCT.

It is at the discretion of the court to issue a summons or a warrant of arrest,

if an application or complaint is issued before it. S. 114 ACJA; S. 80 ACJL
Lagos. It is usually issued in respect of minor offences. It is to be in writing,
issued in duplicates and signed by the presiding officer of the court or other
officer as the CJ may specify from time to time. See S. 121 ACJA; S. 85 ACJL
Lagos; S. 135 ACJL Kano.

Who can Issue Summons?

A summons may be issued by a judge or magistrate or such other officer as

the Chief Judge may specify from time to time. S. 113 ACJA; S. 79-80 ACJL
Lagos; S. 133-134 ACJL Kano.

Police officers and Justices of Peace do not issue summons. Prior to the
advent of the ACJA, this was possible under S. 47 of the CPC. However, the
CPC has now been repealed.

Content of Summons

A valid summons must contain all the following:

Name of defendant charged with the alleged offence

Concise statement of the alleged offence

A directive to suspect to appear in court at a particular date or time

being not less than 48 hours after the service of the summons on him.

The date the summons was issued.

Signature of issuing authority. In Goodman v. Evans, a rubber stamp

signature of the magistrate on the summons is as good as the
magistrate signing the summons.

S. 117 ACJA, S. 82 ACJL Lagos; S. 133 ACJL Kano.

Service of Summons

Summons are served personally on the defendant. S. 123(a) ACJA, S. 87(a)

ACJL Lagos, S. 137(a) ACJL Kano.

Summons can be issued or served on any day including Sunday or public

holiday. S. 116 ACJA; S. 132 ACJL Kano. In Lagos, it may be issued or served
on any day from Monday to Saturday between the hours of 8 a.m. and 6 p.m.
However, a summons issued or served on a Sunday or public holiday shall
not be invalid but shall take effect from the next business day. S. 81 ACJL
Lagos.

How to serve a summons personally

It may be done by a police officer.

May be done by an officer of the court issuing it.

May be done by a courier company registered with the Chief Judge.

May be done by a public officer or by email.

S. 122 ACJA; S. 86 ACJA Lagos; S. 136 ACJL Kano

Substituted Service

Substituted service may be ordered where personal service is impracticable.

Such substituted service may be deemed to be duly served if the serving
officer affixes one of the duplicates of the summons to some conspicuous
part of the premises where the suspect resides or works. This must be done
with leave of court. S. 124 ACJA; S. 88 ACJL Lagos; S. 138 ACJL Kano.

Substituted service may also be done by leaving a copy of the summons with
an adult male member of the defendant’s family.
Service of Summons Outside Jurisdiction

The procedure is by sending in duplicate to a court within the jurisdiction in

which the person summoned resides, works or is to be served. S. 126 ACJA;
S. 91 ACJL Lagos 2015; S. 140 ACJL Kano.

Mode of Receipt of Service

Person served must acknowledge receipt by signing the back of the

duplicate. See S.128 (1) ACJA; S. 92(1) ACJL Lagos; S. 142 (1) ACJL Kano.

Note: that a person who refuses to sign such duplicate may be detained or
committed to prison for 14 days. See S. 129 ACJA; S. 143 ACJL Kano. In
Lagos, the detention shall be for such time as the court considers necessary.
S. 93 ACJL Lagos.

Dispensing with the Presence of Defendant

When a summon is issued against a defendant, the court may dispense with
his presence provided he pleads guilty in writing. His counsel can also plead
guilty for him but in this case, he has to appear in Court. See S. 135 ACJA.
This is for ACJA, for others, either he pleads in writing or counsel pleads for
him, but in ACJA, if counsel, he has to appear in court.

His presence can be dispensed with if among other things, he pleads guilty in
writing; or is represented by Counsel. See S. 130(2) ACJL Kano.

Note:

Under the ACJL Kano, the court shall adjourn for the personal
attendance of the defendant before the defendant is sentenced. S.
130(3) ACJL Kano.

Under the ACJA, however, the court may direct the personal
attendance of the defendant if it thinks fit and can enforce this by
issuing a warrant for his arrest. See S. 135 (2) ACJA.
Life Span of a Summons

Once issued, a summons remains in force until executed or cancelled by the

issuing authority.

The death, vacancy of office, retirement of the issuing authority does not
invalidate it. S. 139 ACJA; S. 100 ACJL Lagos., S. 149 ACJL Kano. Also,
Irregularity, defect, error in issue, service, execution, complaint or otherwise
does not invalidate a summons or a warrant. S. 136(a) ACJA; S. 98 ACJL
Lagos; S. 146 ACJL Kano.

Public Summons

This may be published by a court where a suspect against whom a warrant of

arrest has been issued has absconded or is concealing himself. It is usually
issued in writing. The suspect is required to appear at a specified place and
time not less than 30 days from the date of publication (S. 41 ACJA; S. 59(3)
ACJL Kano).

There is no provision for public summons under the ACJL Lagos.

It is issued and published in a conspicuous place where the suspect is

expected to see it and turn himself in.

Public summons can be published in

A newspaper

Affixed in a conspicuous part of his house, premises, village or town

where he resides.

Affixed at a conspicuous part of the magistrate or high court building.

Any statement in writing by a court that a Public Summons is published in

inherently conclusive evidence. S. 42 ACJA; S. 60 ACJL Kano.
Arrest With Warrant
Below are circumstances where a court may be compelled to issue a warrant of arrest:

 Disobedience to summon (S. 131, ACJA)

 Where the law stipulates that such arrest must be made by warrant

 Where it is a serious offence

 Where the court sees that suspect may abscond (S.83 ACJA)

A warrant of arrest is an authority in writing issued by a court directing a

police officer or all police officers, some other person or persons to arrest the
individual named in the warrant. S. 36(2), 39(1) & 40(1)-(2) ACJA; S. 25-26
ACJL Lagos; S. 58(1) & 59(1) ACJL Kano; S. 75(1) & S. 76(1)-(2) Police Act,
2020.

How an Arrest is Done

In Holgate Mohammed v. Duke, an arrest:

“is a continuing act and starts with the arrester taking a person into custody,
it continues until the person restrained is either released from custody or
having been brought before a magistrate is remanded in custody, by the
magistrate's judicial act.”

The suspect must be touched or confined except he submits to custody by

word or conduct. S. 4 ACJA; S. 1 ACJL Lagos; S. 27 ACJL Kano; Holgate
Mohammed v. Duke.

The arrested person must be informed of the cause of the arrest except he is
in the actual course of committing a crime or is pursued immediately after
committing a crime or escaping from lawful custody. S. 6(1) ACJA; S. 3(1)
ACJL Lagos; S. 29(1) ACJL Kano. The suspect shall also be informed that there
is a warrant for his arrest except such information will occasion escape,
resistance or rescue. S. 77(3) Police Act, 2020. Holgate Mohammed v. Duke

Use of Unnecessary Restraint

A subject or defendant should not be handcuffed, bound or subjected to

unnecessary restraint.

Exceptions

Reasonable apprehension of violence and attempt to escape;

The restraint is considered necessary for the safety of the suspect or

defendant; or

By order of a court or justice of the peace.

S. 5 ACJA; S. 2 ACJL Lagos; S. 17(B) ACJL Lagos; S. 28 ACJL Kano; S. 34 Police

Act; S. 34 1999 CFRN; S. 2 Anti Torture Act, 2017

Under the exceptions, the force or restraint used must be reasonable. Force
that will cause the suspect death or grievous harm is not permissible unless
the suspect himself is armed with dangerous weapons. Queen v Agbochi
FSC.167/63 (Unreported).

Who may issue warrant of arrest?

Magistrates or Judges. See S. 36(1)(c) ACJA; S. 22(1) ACJL Lagos; S.

55(1)(c) ACJL Kano.

It is noteworthy that a court need not sit to issue a warrant of arrest.

It is important to note that despite S. 365(1) ACJL Lagos a Justice of the

Peace cannot issue a warrant of arrest.

The National Assembly can issue a warrant of arrest over matters they
have powers for oversight functions.
This may include for the purpose of investigating a Ministry or department or
on monies appropriated or to be appropriated by the NASS. S. 89(1)(d) & (2)
of the 1999 CFRN.

An Area Court judge who is a legal practitioner can issue a warrant of

arrest. See. S. 494(1) ACJA

Note: A superior police officer cannot issue a warrant of arrest. Under the old
Police Act, a senior police officer could issue a search warrant. But the
section has been repealed.

To Whom is a Warrant Issued? Who Can Execute a

Warrant of Arrest?

Generally, a warrant is directed to a named police officer or all members of

the police force. S. 39(1) ACJA; S. 25(1) ACJL Lagos; S. 58(1) ACJL Kano.

A warrant may also be issued to private person for execution where

immediate execution is necessary, and no police officer is immediately
available. S. 40(1) ACJA; S. 26(1) ACJL Lagos; S. 59(1) ACJL Kano.

A private person executing a warrant of arrest is allowed all the rights and
privileges and protection afforded by law to the police and conform with the
requirement placed on the police. S. 40(2) ACJA; S. 26(2) ACJL Lagos; S. 59(2)
ACJL Kano. However, this section is not to be construed as empowering a
private person the right to possess a gun even in furtherance of an arrest.
See Firearms Control Act

When can warrant be issued?

Where a serious offence has been committed

Where statute provides that such offender cannot be arrested except

by warrant, Ex. S. 419 and 422 Criminal Code. However, pursuant to
 State v. Osler, even for such offences, an arrest without warrant will
not vitiate any proceedings arising therefrom.

Where offender has failed to honour summons. S. 131 ACJA; S. 94 ACJL

Lagos; S. 145 ACJL Kano; S. 89(1)(a) 1999 CFRN

A warrant of arrest is issued on the basis of a complaint. Such complaint

must be on oath for a warrant of arrest to be issued. S. 37 & 133 ACJA; S. 23
& 96 ACJL Lagos; s. 56 ACJL Kano; S. 73 Police Act 2023; Ikonne v. COP.

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, depending
on the circumstances of the case. S. 114 ACJA; S. 80 ACJL Lagos.

Warrant of Arrest may be issued on any day including a Sunday or public

holiday. See, S. 38 ACJA; S. 24 ACJL Lagos; S. 57 ACJL Kano; S. 74 Police Act
2020.

Lifespan of an Arrest Warrant

A warrant of arrest remains valid until it is executed or canceled by a judge

or magistrate. S. 39(2) ACJA; S. 25(2) ACJL Lagos; S. 58(2) ACJL Kano; S.
75(2) Police Act 2020. Once executed, the warrant lapses and cannot
subsequently be used. R v. Akinyeju. A warrant of arrest is executed when
the police officer or other person to whom it is address arrests the person
named in the warrant.

The death of vacancy of office, retirement of the issuing authority does not
invalidate it. S. 139 ACJA; S. 100 ACJL Lagos., S. 149 ACJL Kano; Adeyanju v.
COP. Also, irregularity, defect, error in issue, service, execution, complaint or
otherwise does not invalidate the warrant. S. 136(a) ACJA; S. 98 ACJL Lagos;
S. 146 ACJL Kano.

There is no requirement to issue another warrant of arrest in the case of a

suspect who escapes or is rescued after arrest. The arresting authority is
allowed to pursue and re-arrest. See. S. 48 & 49 ACJA; S. 31 & 32 ACJL Lagos;
S. 66-67 ACJL Kano; S. 81 Police Act
Time and Place of Execution of a Warrant of Arrest

A warrant of arrest may be executed on any day including Sundays and

public holiday. S. 43(1) ACJA; S. 27(1) ACJL Lagos; s. 61(1) ACJL Kano; S. 77(1)
Police Act.

It can also be executed at any time and in any place. S. 43(2) ACJA; S. 27(2)
ACJL Lagos; s. 61(2) ACJL Kano; S. 77(2) Police Act

A warrant of arrest issued by a Federal High Court can be executed in any

part of Nigeria. S. 47 ACJA; S. 80 Police Act

However, the general rule that a warrant of arrest can be executed in any
place in any state has major exceptions.

In Lagos, a warrant of arrest cannot be executed in a court room,

regardless of whether it is sitting or not. S. 27(2) ACJL Lagos

Under the ACJA and in Kano, a warrant of arrest cannot be executed in

a court room while a sitting is ongoing. S. 43(2) ACJA, S. 61(2) ACJL
Kano; S. 77(2) Police Act

A warrant of arrest may not be executed on a member of legislative

House in the Chambers or precincts of a legislative house. See 23(b) &
25 of Legislative Houses (Powers & Privileges) Act 2017. See Tony
Momoh v. Senate (1981); El Rufai v. House of Reps. (2003)

Powers to arrest without being in possession of

warrant.

A police officer can execute warrant without being in possession of it at the

time of the execution. After such execution, the warrant will be shown on
demand to the person arrested:

As soon as practicable after his arrest. S. 44 ACJA; S. 62 ACJL Kano.

 Within a reasonable time. S. 28 ACJL Lagos

Within 24 hours. S. 78 Police Act 2020

Warrant cannot be invalidated by virtue of death, resignation or vacation of

office of the issuing authority. S. 139 ACJA, S. 100 ACJL Lagos, S. 149 ACJL
Kano

Content of a Warrant of Arrest

Name of the Offender

An order directing the police officer(s) or other person, to whom it is

addressed, to arrest and bring the offender named in the warrant. A
warrant of arrest addressed “TO WHOM IT MAY CONCERN” or other
such addresses is wrong.

Brief statement or description of alleged offence

Date of issue of warrant

Signature of issuing authority.

S. 36 ACJA; S. 22 ACJL Lagos; S. 55 ACJL Kano; S. 72 Police Act.

Procedure After Arrest

Upon execution of a warrant of arrest, the suspect is to be taken to the police

station or court that issued it except the endorsement at the bank of the
warrant authorizes that such person be released upon complying with certain
conditions stated therein. S. 45 ACJA; S. 29 ACJL Lagos; S. 63 ACJL Kano.

In the absence of such endorsement, the following is the procedure after

arrest:

Suspect to be taken immediately to the police station.

 Informed promptly of the alleged offence in the language he
understands.

To be afforded reasonable facilities to obtain legal advice and bail. The

legal advice shall be done in the presence of an officer who has
custody of the arrested suspect.

Be informed of his rights of silence and legal representation.

Be brought to the court that issued the warrant.

S. 14 ACJA, S. 9 ACJL Lagos; S. 61(4) ACJL Kano; S. 77(4) Police Act

Notice to the Relatives

The arresting authority has the responsibility of notifying the relative or next
of kin of the suspect of his arrest without cost to the arrested person.

Proviso to S. 6(2) ACJA; Proviso to S. 29(2) ACJL Kano; S. 35(3) Police Act
2020.

Arrest in Lieu of Suspect

A person shall not be arrested in place of a suspect. See S. 7 ACJA, S. 4(1)

ACJL Lagos; S. 30 ACJL Kano; s. 36 Police Act. It is an offence to arrest in lieu.
S. 4(4) ACJL Lagos.

This does not apply to sureties. S. 4(2) ACJL Lagos.

Arrest for Civil Wrong

A person shall not be arrested for a civil wrong or breach of contract unless
there is an element of criminality (e.g. fraud). See. S 8(2) ACJA; S. 17(C) ACJL
Lagos; S. 31(2) ACJL Kano; S. 32(2) Police Act; Kure v. COP; EFCC v. Diamond
Bank.
Prohibition of Media Parade

In Lagos, pursuant to S. 9A ACJL Lagos, the media parade of a suspect is

prohibited.

Execution of Warrant of Arrest Outside

Division/District

Proceed to effect arrest without recourse to any judge/magistrate in

the division/district.

After arrest, take the suspect to the judge/magistrate in the

division/district who may after enquiry that the issuing
judge/magistrate intends to arrest the suspect, direct his removal.

Grant bail to the suspect if bail is endorsed on the warrant and the
suspect is willing to satisfy the bail, provided the offence is not
punishable by death.

S. 46(1) & (2) ACJA; S. 30 (1), (2) & (3) ACJL Lagos; S. 64(1) & (2) ACJL Kano.

Execution of Warrant Outside the State

Executing officer takes the warrant to a magistrate or judge in the state

where the suspect is. The magistrate or judge endorses after being satisfied
that the warrant was issued by a judge or magistrate authorizing its
execution in the state. After arrest, the executing officer takes the suspect to
the endorsing magistrate. The magistrate shall:

If bail is not endorsed on it, by warrant under his hand order the person
arrested to be removed to the state that issued the warrant, and for
this purpose be delivered to the officer who brought the warrant or

where the offence for which the person is arrested is bailable or bail is
endorsed on the warrant, admit such person to bail upon conditions as
he deems fit.
S. 365 ACJL Lagos. S. 63(1) & (2) and S. 65 ACJL Kano. Mattaradona v. Alu.

A magistrate to whom a warrant is taken does not have to endorse it as a

matter of course. He has to satisfy himself that there are sufficient grounds
for the issuance of the warrant by the issuing state. If he determines that hte
issuance results in abuse of legal process, he has to refuse his endorsement
on the warrant. Police v. Apampa.

Also, where the warrant is issued in respect of an offence not known to the
law of the state of issue or which offence has ceased to be an offence in the
state of issue, he should not make any endorsement. See R v The Commr of
Metropolitan Police Exparte Harmond (1964) 3 WL.R.I.

N.B. A court cannot have jurisdiction to issue a warrant over a crime that it
cannot try. Ex, drug-related offences, State High Court cannot issue warrant
of arrest.

Where a warrant of arrest is not endorsed before an arrestee is moved from

one place to another, the non-endorsement will be regarded as a mere
procedural irregularity which cannot vitiate proceedings unless there is a
failure of justice. See Mattaradona v. AlIu (1995) 8 N.W.L.R (Pt. 412) 225.

Endorsement of bail on warrant

Where the offence is not a capital offence, the issuing authority may endorse
on the warrant that the suspect be released on bail on his entering into a
recognizance for his appearance as may be required in the endorsement.
S.29 ACJL, S.45 ACJA

NOTE: Where there is non-compliance with the provisions of the law with
regards to arrest it is treated as an irregularity. See S. 98 ACJL Lagos

Arrest Without Warrant

This is a form of effecting arrest without the use of a written warrant of
arrest.
Who may effect an arrest without warrant?

Police and other law enforcement officer

S. 38(1) Police Act. S. 18-19 ACJA; S. 10 ACJL Lagos; S. 41(1) ACJL Kano

A police officer may arrest without warrant in any of the following

circumstances:

Presence rule: when an offence is committed in his presence, even

when the law says a warrant should be issued.

Reasonable suspicion rule: when he reasonably suspects a person of

having committed an offence under any federal or state law unless the
law creating the offence provides that the suspect cannot be arrested
without a warrant.

Goods suspected to be stolen rule: where goods with a person is

reasonably suspected to be stolen or unlawfully obtained.

Deserter rule: when he suspects a person to be a deserter from any of

the Armed Forces of Nigeria, not Police Force

Obstruction rule: when a person obstructs a police officer while

carrying out his duty.

Concealment rule: when a person is found taking precaution to conceal

himself and it is reasonably believed that he is taking such precaution
with a view to committing a crime - whether felony or misdemeanour.

Weapon possession rule: when a person is having in his possession

instrument of house-breaking, car theft, firearm or offensive weapon
without excuse.

Warrant rule: when he reasonably believes that a warrant of arrest has

been issued against such person by a competent court.
 Outside Nigeria rule: when he reasonably suspects a person of having
committed an offence outside Nigeria of which if committed in Nigeria
would amount to an offence.

Means of subsistence rule: a person who has no ostensible means of

subsistence and who cannot give a satisfactory account of himself.

Escape rule: when a person has escaped lawful custody—S. 48 ACJA

Judge or Magistrate direction: When the police officer is directed to

arrest the suspect by a judge or magistrate. S. 38(1) Police Act; S. 18
ACJA; S. 41(1) ACJL Kano

Designing to Commit an Offence: when the police officer reasonably

suspects the person to be designing to commit an offence for which
the police may arrest without a warrant, and it appears that the
commission of the offence cannot be otherwise prevented. S. 38(1)
Police Act; S. 18 ACJA; S. 41(1) ACJL Kano

Public summons rule: where the person is required to appear by public

summons issued under any law. S. 38(1) Police Act; S. 18 ACJA; S. 41(1)
ACJL Kano

Public property rule: when the police officer reasonably suspects the
person to be damaging public property. S. 41(1) ACJL Kano.

Child protection rule: to protect a child or other vulnerable person from

the suspect. S. 38(1) Police Act.

Suspect prevention rule: to prevent the suspect from causing physical

injury to himself or someone else, causing loss or damage to property,
causing unlawful obstruction of the highway, and committing an
offence against public decency. S. 38(1) Police Act.

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.

Note: It may well be that an offence has not been in fact committed.
Notwithstanding, a police officer who on reasonable grounds effects an arrest
is not liable for false imprisonment. See Dallison v. Caffrey (1964) 2 All E.R.
1203. The House of Lords noted in a case that to determine whether it was
reasonable for a constable to have arrested a person without warrant based
upon a suspicion that an offence has been committed, the power of the
police to arrest being an executive discretion must be exercised in good faith
to the exclusion of considerations of matters which are irrelevant to what he
has to consider. This is the Wednesbury principles fashioned after the
classical case of Associated Provincial Picture House Ltd. v. Wednesbury
Corporation (1948) 1 K.B. 224.

Judicial officers

A Judge or Magistrate may arrest without warrant for an offence that is

committed in their presence and in the division or district where they sit.
These judicial officers may either conduct the arrests themselves or order
any person to arrest the suspect. See S. 24 ACJA; S. 15 ACJL Lagos; S. 45
ACJL Kano; S. 41 Police Act.

NB. The ACJA permits a Justice of Peace to exercise the powers to arrest
without warrant. S. 24 ACJA; confer with S. 26 of ACJA.

Private Person

A private person may arrest a suspect who commits an offence in his

presence or who he suspects to have committed an offence. See S. 20-22
ACJA; S. 12-13 ACJL Lagos; S. 43 ACJL Kano; S. 39 Police Act.

There are conditions for which this power can be exercised.

Under ACJA and ACJL Kano, such offence for which the private person is
exercising this power of arrest must be one in which the police is
entitled to arrest without warrant. S. 20 ACJA; S. 43(1) ACJL Kano.
Under ACJL Lagos, it has to be for an offence triable on information. S.
12 ACJL Lagos.
 Immediately, the private person is to hand over the suspect to a police
officer to take such person to police station. S. 23(1) ACJA; S. 14(1)
ACJL Lagos; S. 44(1) ACJL Kano; s. 40(1) Police Act.

In addition, the owner of a property, his servants or agents can arrest

without warrant a suspect found committing an offence involving injury to
property. S. 21 ACJA; S. 43(2) ACJL Kano; S. 13(1) ACJL Lagos. A private
person may also arrest any suspect found damaging public property. S. 22
ACJA; S. 43(3) ACJL Kano; S. 13(2) ACJL Lagos.

Searches
A search is an examination of a person’s body, property, or other area that
the person would reasonably be expected to consider as private, conducted
by a law enforcement officer for the purposes of finding evidence of crime.
See S. 9(1)(A) ACJA; S. 5(1) ACJL Lagos; S. 32(1) ACJL Kano; S. 52(1) Police
Act.

Power of Police to Search

The police have far-reaching powers of search. Notably, the police are
empowered to detain and search persons having in their possession anything
stolen. S. 4 Police Act. Similarly, they have powers to seize and retain
anything for which a search has been authorized. S. 48(1) Police Act. They
also have the power to stop and search at any public place, including any
person or vehicle. S. 49 of the Police Act.

Such search must, however, be propelled by reasonable suspicion. S. 9(1)(a)

ACJA; S. 5(1) ACJL Lagos; S. 32(1) ACJL Kano; S. 49(1) Police Act. Also, due
regard must be had to S. 37 of CFRN 1999 which provides for right to private
and family life. S. 48(4) Police Act.
Types of Searches

There are three types of searches: Persons, Premises, and Things.

Search of Persons

The body of person arrested in connection with an offence may be searched.

S. 9(1) ACJA; S. 5(1) ACJL Lagos; S. 32(1) ACJL Kano. The law also permits
forensic, medical or scientific examination of any person who is reasonably
suspected of concealing an incriminating item in the latent part of their body.
This examination can be conducted by a police officer, a medical practitioner
or any certified professional with relevant skills, acting at the request of a
police officer. S. 11 ACJA; S. 5(6) ACJL Lagos; S. 34 ACJL Kano. While general
searches can be conducted in public, a medical or forensic examination must
be done in privacy, in pursuance to S. 34(2) CFRN 1999 (right to dignity).

It is important to take inventory of items recovered from a suspect during the

search of his person. See S. 10(1) ACJA; S. 6(a) ACJL Lagos. These items are
referred to as exhibits. The inventory is to be signed by the officer and the
arrested person or his legal practitioner. S. 10(2) ACJA; S. 6(a) ACJL Lagos.
However, failure of a suspect to sign does not invalidate the inventory. S.
10(2) ACJA. Also, a copy of the inventory is to be given to the arrested
person or his legal practitioner or such other person as the accused may
direct. See S. 10(3) ACJA; S. 6(b) ACJL Lagos; S. 36(6)(c) CFRN 1999.

After such search is conducted, the police officer shall place in safe custody
all articles found on the suspect, other than his necessary wearing apparel.
See S .9(1)(b) ACJA.

Exhibits are kept in the exhibit room. Before you take it to the exhibit room, it
must be registered in the Exhibit Register. Items recovered in any kind of
search is taken to police station, handed to the exhibit keeper, who registers
in the exhibit register, and takes it to the exhibit room. (It is usually given an
exhibit name at the station, but another name will be given by the court).
Same Sex Search

As a general rule, a person must be searched by an officer of the same sex.

Thus, a woman to be searched by woman, and a man by a male police
officer. S. 9(3) ACJA; S. 5(2) ACJL Lagos; S. 32(3) ACJL Kano.

Exception:

Urgency of matter allows a person of the opposite sex to search a

suspect where it is impracticable to procure a person of the same sex
to conduct the search.

Where interest of due administration of justice makes it impracticable

to get a person of same sex to carry out the search, a person of the
opposite sex can carry it out. S. 9(3) ACJA

Notably, both the general same sex search and these exceptions are with
due regard to decency. S. 9(3) ACJA; S. 5(2) ACJL Lagos. S. 32(3) ACJL Kano.

The rule of same sex search does not extend to search of a woman’s
appurtenances e.g. Handbag. A man can search the handbag of a woman.

Also, S. 53 Police Act provides for intimate search. This can be carried if a
police officer of at least the rank of Assistant Superintendent of Police has
reasonable grounds to believe that a suspect in lawful custody has concealed
anything that can cause physical injury to himself or others while he is police
detention or custody of court. The authorization to carry out an intimate
search can be oral or in writing. Where oral, it must be confirmed in writing
as soon as practicable. S. 53(2) Police Act.

A suspect on whom intimate search is to be carried out is also to be informed

of the purpose of the search and authorization and grounds for the search. S.
53(3) Police Act. If anything was discovered during the intimate search, the
suspect must be told the reason for the seizure unless he is violent or likely
to become violent or is incapable of understanding what is said to him. S.
53(11) Police Act.

An intimate search can only be carried out by a “suitably qualified person” or

Sergeant of the same sex as the suspect. S. 53(6) Police Act. Suitably
qualified person means registered medical practitioner or nurse. S. 53(15).
Moreover, an intimate search can only be conducted at a police station,
hospital, or some other place used for medical purposes. S. 53(7) Police Act.

Unacceptable Reasons for Search

In determining grounds for reasonable suspicion during a search, the Police

Act prevents some factors. So, personal attributes like hairstyle, dressing,
muscular build, person’s colour, age, previous conviction for possession of an
unlawful article, or stereotyped beliefs that certain groups have proclivity to
crime are unacceptable grounds for reasonable suspicion. S. 54 Police Act.

Search of Premises

Search of premises requires search warrant as a condition precedent,

otherwise such search will be unlawful. S. 144 ACJA, S. 104 ACJL Lagos; S.
154 ACJL Kano.

The requirement of a search warrant before a search on premises accords

with S. 37 1999 CFRN which provides the right to private and family life.
Thus, all searches must have due regard to privacy. However, such right is
not absolute. See. S. 45(1) 1999 CFRN

Exceptions to Requirement of Warrant

An officer with a warrant of arrest may search premises without search

warrant where he believes the person to be arrested has entered into
or is within the place. In such instance, the person residing in or in
charge of such premises shall on demand allow free and unhindered
access to the police officer or other persons executing the search
warrant. S. 12(1) ACJA; S. 7(1) ACJL Lagos; S. 35(1) ACJL Kano; s. 55(1)
Police Act,

A magistrate or justice of peace can direct a search to be conducted in

his presence in a place where he can issue a warrant. S. 152 ACJA; S.
162 ACJL Kano.
 A Custom officer may enter or break into a place where be suspects
items are concealed. S. 147(1) CEMA

An officer of NDLEA/Police is empowered to enter premises to search

where there is reason to believe drugs are kept S. 32 NDLEA Act.

Where a court makes an order for the release of an abducted or

unlawfully detained person within a premises.

Officers of NSCDC may enter premises and seize items suspected to be

use in vandalism, premises of illegal dealers in petroleum products. S.
3 NSCDC (Amendment) Act, 2017; NSCDC v. Ukpeye.

Right of Ingress and Egress

Where entry is denied to an officer with a search warrant, officers are

entitled to use force to break in and out of premises. S. 12(2) & 13 ACJA; S.
7(2) ACJL Lagos; s. 35(2) ACJL Kano; S. 55(1) Police Act 2020.

There is no provision of law stipulating that the officer executing the search
warrant be searched before he starts the search, but it is encouraged to
avoid suspect accusing the officer of planting or tampering with items
recovered.

Search of a place occupied by a woman in purdah

The woman has a right to be notified of the impending search for her
withdrawal. The officer must give her reasonable time and facility for the
woman to leave the premises.

However, if it is a woman carrying out the search, the requirement for notice
is not necessary. Also, if the woman in purdah is not around, the premises
can be searched without informing her.

S. 12(3) & 149(6) ACJA; S. 7(3) ACJA Lagos; S. 35(3) ACJL Kano; S. 55(3)
Police Act.
Search of things

Search of things is the general duty of police. Such searches can be executed
without the requirement for a search warrant not required. This however
depends on what is to be searched.

In cases where a search warrant is not required, there must be reasonable

suspicion. Below are some instances designating things that can be searched
without a warrant and those require a warrant.

A motor vehicle: No search warrant is required as a police officer can

stop and search vehicles. S. 49 Police Act; Karuma v. R.

Bag: No search warrant required

Aircraft: search warrant required

Vessel: search warrant required

Powers of search of things without warrant is also conferred on

customs officers, the Federal and State Task Forces of NAFDAC.

Search Warrant

A search warrant may be issued upon information on oath or in writing upon

reasonable grounds. S. 144 ACJA; S. 104 ACJL Lagos. A warrant can be issued
by a Judge, Magistrate or Justice of Peace. Such search warrant must be
signed by the issuing authority. S. 146(1) ACJA; S. 106 ACJL Lagos; s. 156(1)
ACJL Kano.

Pursuant to S. 48 Police Act 2020, police officers cannot issue search warrant
anymore.

A search warrant may be directed to more than one person and when
directed to more than one person, it may be executed by any or all of them.
See S. 107 ACJL Lagos; S. 147 ACJA.
Time and Execution of Issuance

A search warrant remains in force when issued until execution or

cancellation. S. 146(2) ACJA; S. 106(2) ACJL Lagos.

In all jurisdictions, a search warrant may be issued at any time or day of the
week. S. 148 ACJA; S. 158 ACJA Kano; S. 108(1) ACJL Lagos

Under the ACJA and in the North, a search warrant can be executed on any
day and at any time. In Lagos, search warrant may be executed any day of
the week but not any time. A warrant can only be executed between 5am-
8pm except court directs otherwise. See S. 108 ACJL Lagos. Where a
Magistrate authorizes otherwise, it must be stated on the warrant or
endorsed prior to execution.

The death, resignation, retirement of the issuing authority does not affect its
validity. See S. 136 (2) ACJA.

A search warrant may be directed to more than one person and when
directed to more than one person, it may be executed by any or all of them.
See S. 107 ACJL; S. 147 ACJA.

On demand by a police officer or other person executing the search warrant,

the person in occupation of the premises to be searched must give free
access (free ingress and egress) and afford all reasonable facilities for the
search. See S. 109(1) ACJL; S. 149(1) ACJA.

However, if the person in occupation refuses to grant free access (free

ingress and egress), the police officer has the right to break into the
premises to conduct the search and break out. See S. 109(2) ACJL.

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 S. 109(3) ACJL; S. 149(3)
ACJA.
Occupant or owner shall be allowed to be present during the search. S. 150
ACJA; s. 160 ACJA Kano.

Occupant has right to produce a witness. Under ACJA, two witnesses may be
called by the officer unless the court directs otherwise. S. 149(4) ACJA

A list of all the things seized during the search and of the place where they
were found shall be prepared by the person carrying out the search and shall
be signed or sealed by the witnesses. See S. 149(5) ACJA.

A search warrant cannot be executed in a Legislative House. S.23(a) of the

Legislative Houses (Powers and Privileges) Act, 2017 provides that “court
processes or orders shall not be served or executed in the chambers or
precinct of a Legislative House.” Note that it can however be done with the
consent of the President of the House. See Tony Momoh v. Senate of National
Assembly.

Execution of Search Warrant Outside jurisdiction

The procedure is provided under S. 151 ACJA; S. 161 ACJL Kano. This
provision is absent in ACJL Lagos.

Under the ACJA, the person executing a search warrant outside the
jurisdiction of the issuing authority must apply to a court within the
jurisdiction where the search is to be made before executing the search
warrant.

In Kano, however, the executing officer has discretion to elect whether or not
to submit to the court in whose jurisdiction the warrant is to be executed. S.
161 ACJL Kano.

Seizing of Goods not specified in warrant.

Generally, only goods specified in a search warrant may be seized. However,

where the person executing the search warrant comes across items which he
reasonably believes to have been stolen or are relevant in respect of other
offences, he can lawfully seize such items. Reynolds v. The Commissioner of
Police for the Metropolis.
Also, if incriminating materials are found, they may be seized. Elias v.
Passmore; Nwagu v. Wawa.

Items not specified in the search warrant but are seized during a search
amount to improperly obtained evidence. S. 14 & 15 Evidence Act. They are
admissible in court unless the undesirability of admitting it outweighs the
desirability of admitting it.

In determining admissibility, the factors to be considered are:

The probative value of the evidence

The importance of the evidence in the proceeding

Nature of the relevant offence, cause of action or defence, and the

nature of the subject matter of the proceeding

The gravity of the impropriety of contravention

Whether the impropriety of contravention was deliberate or reckless

Whether any other proceedings (in court or not) has been or is likely to
be taken in relation to the impropriety of contravention

The difficulty of obtaining the evidence without impropriety of

contravention of law

However, if a person without a search warrant, enters a premises and

recovers an item used in the commission of a crime, it is an illegally obtained
evidence. It is admissible. The owner of the house has remedy, but in a civil
action.

Liability for Procuring a Search Warrant Without

Reasonable Cause

The person who bears liability for the procurement of wrong search warrant
depends on the facts of each case. S. 323(1) ACJA.
Where the complainant made a report, and a search warrant is issued and
executed, he may not be liable in damages for false imprisonment, if the
person whose premises is searched is arrested and detained by the Police.
See Kuku v. Olushoga;

A complainant who maliciously set the law in motion against a person

alleged to have committed an offence, may render himself liable in damages
for malicious prosecution or procurement of a search warrant (civil liability).
See Balogun v. Amubikahu.

See also Garba v. Maigoro.

Constitutional Safeguards
Right to dignity of human person. S. 34 1999 CFRN; S. 8(1)(a) ACJA

Right to personal liberty. S. 35(1) 1999 CFRN

Right to be silent. S. 35(2) 1999 CFRN

Information of offence. S. 35(3) 1999 CFRN

Arraignment within a reasonable time. 24 hours if court is within 40

km; two days if court is not. S. 35(4) CFRN 1999

2 months requirement to be charged to court in relation to bailable

offence; 3 months requirement to be charged to court in relation to
non-bailable offence.

Right to counsel. S. 35(2) 1999 CFRN

Right to privacy. S. 37 1999 CFRN

WEEK FIVE: PRETRIAL INVESTIGATION
AND POLICE INTERVIEW
Investigation is a systematic collection of information about crime and the
assembly of physical and testimonial evidence within the framework of the
law for the purpose of identifying the perpetrator of a crime and providing
evidence for the successful prosecution of criminal suspects.

Preliminary Points about Pretrial

Investigation
It must be carried out within the confines of the law.

It determines whether or not a suspect may be charged.

If not properly handled, it may result in conviction of an innocent

person or acquittal of a criminal.

If not properly handled, it may lead to non-prosecution of a criminal.

Authorities that Conduct Pretrial

Investigation
The police. S. 4, 31 & 84(1) of Police Act 2020

Other law enforcement agencies such as NDLEA, EFCC, NAFDAC,

SSS/DSS, ICPC, NSCDC, NCS

Private investigative outfits. S. 4(i) Police Act 2020

All the above authorities are empowered by their respective enabling law to
conduct pretrial investigation.

What triggers investigation?

An information or a complaint. They both may be oral or in writing. The
police could also apprehend people in certain circumstances that can trigger
an investigation.

Once a complaint is made to the Police that an offence has been committed,
it is their duty to investigate the case, not only against the person about
whom the complaint has been made but also against any other person who
may have been involved in the commission of the offence.

Investigation of a criminal complaint as a preliminary course may or may not

result in the prosecution of the suspect. Investigation is the process of
inquiring into and tracking down through inquiry. Investigation of crime
involves systematic collection of information about crime and the assembling
of evidence either openly or clandestinely or both, for the purpose of finding
the author of a crime.

In high profile cases, the investigation is usually done clandestinely in a

discreet manner. See Ndi Okereke Onyuike v. The People of Lagos State &
Ors.

Police Powers/Procedure after Complaint

Prevention or detection of crime: Prevention, and detection of crime is

so wide. However, irrespective of this wide power, it is limited to crime,
and as such cannot be involved in anything not related to crime.

Commencement of investigation: In Onyekere v. State, the court held

that it is within the power of the Police to investigate criminal offence.

Effecting arrest

Carrying out searches

 Invite any person for interview or questions.

Prosecute

S. 4, 31, 32(1), 66, 84 Police Act 2020; Rhodes & Anor. v. IGP & Ors (2018).

It is noteworthy that the police has discretion to investigate and prosecute.

Fawehinmi v. IGP. No court of law has power to stop the police from
investigating a crime. IGP v. UBA; Duruaku v. Nwoke

Exception to Police Powers

Debt Collection/Recovery. McLaren v. Jennings; Abdullahi v. Buhari

Arrest in Lieu. S. 36 Police Act 2020, S. 7 ACJA; S. 4 ACJL Lagos

Enforcement of civil wrong/breach of contract. S. 8(2) ACJA; S. 17 ACJL

Lagos; S. 31(1) ACJL Kano; s. 32(2) Police Act. Kure v. COP, EFCC v.
Diamond Bank

No license to kill arbitrarily. Olaiya v. State

Note, the consequences of instigating the police to dabble into civil

case/contract is compensation. S. 323(1) ACJA; Okafor & Anor v. AIG & Ors.

Who May be Interviewed in the Course of

Investigation?

The following categories of persons may be invited by the police in the

course of a pretrial investigation.

Suspect

Victim
 Witnesses

Experts

Complainants

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 then, “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). Also, note that both Mag & High Court can issue witness
summons, only High Court can issue subpoena.

Note: torture is not an acceptable mode of questioning or interview. S. 2,

3(1), 7 & 8 of Anti-Torture Act; S. 34(1)(a) CFRN 1999 (as amended). Where
this is breached, civil action will lie, and penalty as stated in the Anti-torture
law.

Why is Pretrial Investigation Necessary

To determine if a crime has been committed or not; Section 36(12)

CFRN 1999 provides that no person shall be tried for a criminal offence,
unless it is defined and a penalty stated thereof in a written law.

To help determine the circumstances that led to the commission of the

offence, or under which the offence was committed.

To help determine the people that took part or were connected with the
commission of the offence / who was responsible for the offence.
(Though in law, it is possible to try persons unknown, but they must be
tried with known persons).
 To help uncover evidence which shows that the offence was
committed.

To help determine damages caused to the victim, and the gains

accrued or made by the suspect;

To help determine what the victim or complainant wants.

N.B. Investigation is free and should not incur money from the victim.

How is Pretrial Investigation Conducted?

As soon as information or complaint is received by the Police, they may visit

the scene, arrest anybody that may be directly or indirectly connected to the
commission of the crime, conduct searches etc.

Effective investigation includes getting complete and accurate eyewitness’

accounts, if any. The investigation must be conducted within the confines of
the law.

Under the ACJL Kano, once information is given to the Police concerning the
commission of an offence for which, according to the third column of
Appendix A, the Police are authorized to arrest without warrant and which
may be tried by a court within the local limits of whose jurisdiction the Police
station is situated, he shall, if the information is given orally, reduce it into
writing in the prescribed form called First Information Report, which shall be
read or caused to be read over to the Informant. The Informant shall sign or
seal same. S. 106, 107, 129 (1)-(2) ACJL Kano and 3rd column of Appendix A.

Upon receipt of information as stated above, the Police officer is further

required to enter or cause to be entered, the information in a prescribed
book kept by the Commissioner of Police. The officer may refuse to accept
the information if he is satisfied that it will not serve any public interest. S.
129 (3)-(4) ACJL Kano.
Where the officer is of the view that the matter may be more conveniently
handled by another Police station, he shall transfer or refer the information
to that police station. S. 129 (5) ACJL Kano.

Police Interview

There are different modes of questioning during police interview.

Face to face

Telephone

Written representation can be accepted from any member of the public

who has an idea about the incident, or persons mentioned in relation to
the crime.

Where the person to be interviewed is the suspect, face to face interview is

required. Other individuals may be interviewed through other modes.

A police interview ought to take place at the Police Station or any authorized
place i.e., offices of other law enforcement agencies. Daro v. EFCC.

Stages of interview

Rapport building: (called Meet & Greet Stage in other jurisdictions

outside Nigeria). The venue should also be bereft of all instruments of
torture. The witness should be made to feel comfortable.

Information exchange stage: At this stage, the interviewer is

getting down to more details. He can now ask more direct questions
and seek clarifications on answers given.

Challenge/confrontation stage: this stage is usually leading

questions, and the Police leads the witness to state facts relating to the
crime. It could be in form of Questions and Answers.
 Concluding stage: The interviewer may ask the suspect to tell him
any other thing about this case that he thinks the interviewer may
want to know. The contact details of the witness may be collected.

Ways of Proving a Crime

Voluntary Confessional Statement of a defendant

Direct eyewitness account

Cogent circumstantial evidence.

See Onwuta v. State of Lagos; Adesina v. FRN

Difference Between Confessional Statement and Main

Statement

The admission of guilt is the simple distinction between a confessional

statement and a main statement. Igbo v. State. An ordinary statement is
made at any time during the investigation of the police and simply sets out
an account of what transpired. If when writing a main statement, the
defendant admits to committing a crime, it becomes a confessional
statement. S. 17(1) & 15(4) ACJA; S. 28 Evidence Act.

Generally, both statements are admissible in court if they are made

voluntarily. They form the foundation of the case of the prosecution. It is
important to tender the statement of the witness.

A statement must be under caution. However, a statement is not rendered

inadmissible merely because the suspect was not advised as to caution. S.
31 Evidence Act, 2011. Statement is to be recorded in the original language
of the defendant, preferably English if practicable. See Olalekan v. State. If
the suspect does not make his state in English, there must be a verbatim
recording of the language used by the suspect to be interpreted/translated to
English.

The statement must be recorded in first person singular or plural (‘I’ or ‘we’).
See Ahmed v. State. If another suspect makes a statement against a suspect,
the attention of the suspect shall be drawn to the other suspect’s statement
and for the former to make an additional statement if he so wishes.

The making of the statement has to be in the presence of a legal practitioner

of his choice, an officer of the Legal Aid Council, an official of a Civil Society
Organization, a Justice of the peace or any person of his choice. S. 17(1) &
(2) ACJA; S. 60 (2) Police Act, 2020.

Statement made to the police by the suspect during investigation must be

tendered by the prosecution at his trial. Garba Dandare & Anor v. The State.
The written statement of the suspect to the police is the foundation of the
prosecution’s case. Olayinka v. State.

Statement made under duress, compulsion, threat or promise of an

advantage may not be admitted. S. 29(2) & (5) EA. S. 2 Anti-Torture Act. Also,
a suspect is not under compulsion to make a statement. S. 17(1) & 6(2) ACJA;
S. 35(2) Constitution; Section 60(1) Police Act.

Note: A statement made to an undercover police officer who poses as a

criminal is voluntary and admissible. Igbinovia v. The State.

Procedure for Recording a Statement where an interpreter is used.

Where a suspect does not understand English, an interpreter shall record the
statement in the original language spoken by the suspect, after which it is
translated verbatim to English language. S. 17(3)(4) & (5) of ACJA; S. 40(3)(4)
& (5) ACJL Kano; S. 60(3),(4) & (5) Police Act 2020. See also Adeyemi v.
State; Bello v. State; R. Ogbuewu; Olalekan v. State

The person who recorded the statement and the interpreter are to be called
as witnesses. Olalekan v. State, Dayo v. State, Altine v. State. Also, both the
original statement and the interpreted version are to be tendered. Nwali v.
State
Where it is a police officer that recorded the statement, provided the
defendant spoke in English, the police officer is not required to be called as a
witness before the statement can be tendered. Michael Oloye v. State

Assuming the interpreter cannot be found, the prosecution must lay proper
foundation to tender the interpreted document in evidence.

Confessional Statement

A confession is an admission of the commission of a crime. Every confession

contains an admission, but not every admission is a confession. R v. Inyang.

A confession is an admission made at any time by a person charged with a

crime, stating or suggesting the inference that he committed that crime. S.
28 of the EA

A confessional statement may be vitiated where it was obtained by

oppression of the person who made it, or in consequence of anything said or
done which was likely to render the confession unreliable. S. 29 of EA; S.
2&3(3) Anti Torture Act

If the confessional statement is not made voluntarily, it is not generally

admissible in court. Instead, it will lead to a trial within trial to determine the
voluntariness of the statement. The onus is on the prosecution to prove
beyond reasonable doubt that the confessional statement was not made
involuntarily or under threat or oppression. This is different from a retraction.
In a retraction, the evidence is still admissible, but the court determines the
probative value to attach to it.

In Adesina v. State, defendant said that the NDLEA came to search for drugs
but did not find any in his house. They took him to another person’s house
and got some drugs, afterwards taking him to their statement. There, they
had another written statement that was not his. Adesina pleaded non est
factum. The court of appeal held that if a defendant claims such, the
statement is admissible but the court will determine the weight attached to
it. The court drew a tiny distinction between retraction and non est factum.
Retraction implies that a statement was made. Non est factum implies that a
statement was not made at all. The effect of both statements are the same,
though.

Types of confessional statement

Formal/Judicial confession

Informal/Extra judicial confession

When a confession is made before trial during the course of investigation or

outside the court, it is called an informal confession while an admission of
the commission of an offence made in court or in a judicial or quasi-judicial
proceeding is called a formal confession or plea of guilty. See Omisade v
Queen; Akpan v. The State.

Principles Relating to Confessional Statements

Confessional statement can only be made during investigation or at the close

of it before arraignment. Onungwa v. State; R v. Udo.

Confession may be oral or in writing. See Ayobami v. State; Igbinovia v.

State; Arogundare v. State.

Confessional statement cannot be made on behalf of another person unless

the other person adopts the statement by word or conduct. See S. 29(2) &
(4) of the Evidence Act; State v. Musa; Olusegun v. State; Mbang v. State. A
confessional statement only binds the maker of the statement.

The confessional statement must relate to actus reus and mens rea.
Omisade v. Queen. Confessional statement must be direct; it must be
positive and irresistibly point to the guilt of the accused. Okunaya v. State;
State v. Enabosi. A court cannot choose a part of a confessional statement
favorable to the prosecution and leave the part favorable to defendant. State
v. Da’u

If a confessional statement is made on a co-accused, the consequence is

different if it is made on oath before the court. If the co-accused does not
lead evidence to the contrary, the court may rely on it. An extra judicial
confession incriminating a co-accused if corroborated by other evidence, a
court may rely on it.

Counsel cannot explain how a confessional statement was obtained as it will

amount to hearsay. It is the duty of the witness (suspect) to explain how the
statement came about to be. It is at the point of tendering the confessional
statement that the defendant is expected to object to the admission of the
confessional statement. See Ayuiwa v. COP.

A confessional statement must be voluntary. A confessional statement may

be challenged on grounds of involuntariness or based on denial (retraction).
See Ofordike v. State; Agbanimu v. FRN. The court can suo motu raise the
issue of voluntariness of a confessional statement. S. 29(3) EA.

A confessional statement obtained as a result of moral adjuration will not

amount to involuntariness. If the confessional statement is relevant, it is
admissible, irrespective of the fact that it was gotten under promise of
secrecy or some practice of deception.

Also, a confession obtained as a result of deception practiced on the

defendant will not amount to involuntariness. See S. 31 Evidence Act.

Recording of Confessional statement in the North S. 38(4) ACJL

Kano

The statement shall be in writing. The statement may be recorded

electronically. However, oral confessional statement is admissible in
evidence. S. 38(5) ACJL Kano. See. S. 40(2) ACJL Kano for the procedure of
recording ordinary statement which provides that the statement must be
taken in the presence of a legal practitioner of the [suspect’s] choice.

Under S. 38(6) of ACJL Kano, the prosecution while tendering confessional

statement must adduce evidence to show the voluntariness of the
confessional statement.

S. 38(7) of ACJL Kano provides, however, that after arguments on trial within
trial is made, the court is not to deliver a ruling immediately. It has to wait
until when it wants to deliver final judgment or no case submission to deliver
its ruling on the voluntariness of the confessional statement.

Has ACJL Kano abolished trial within trial? No. It only shifts the time of the
ruling.

Recording of confessional statement in Lagos

Confessional statement may be made orally but it must be recorded on video

or other electronic device in the presence of a legal practitioner or other
representative acceptable to the suspect.

Confessional statement may be in writing recorded in video and must be in

the presence of a legal practitioner of choice. S. 9(3), (4) & (5) ACJL Lagos
2021.

Are these provisions compulsory or not?

The court in Awelle v. People of Lagos State, Zhiya v. People of Lagos State,
Agbanimu v. FRN held that the provisions are compulsory and failure to
follow the procedure shall make the confessional statement impotent.

Also, in Charles v. State of Lagos, the Supreme Court held that confessional
statement made without video recording or in the presence of counsel in
breach of the provision is of no effect. It is impotent and worthless. The
section is a mandatory procedural law which breach is against S. 35(2) CFRN.
The officer taking the statement is expected to take the statement together
with the suspect to a superior officer. Dibie v. State.

However, failure to observe the above procedure does not render the
statement inadmissible. Ikpo v. State. The court held that it is the Evidence
Act that regulates admissibility.

In Olanipekun v. State, pidgin English is a specie of English Language. A

confessional statement made in pidgin English is admissible in court. If the
defendant does not understand English language, it behooves on the
defendant or his counsel to notify the court ahead. Taiwo v. FRN.
Recording of confessional statement under the ACJA

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 (if possible, in the presence of a legal practitioner) and may be
recorded electronically on a retrievable video compact disc or such other
audio-visual means. S. 15(4) ACJA. The court has held that despite the use of
the word “may” the requirement is mandatory.

NB: Where the suspect is tortured behind the scene and this leads to his
making of the statement in the manner prescribed above, though some
elements of involuntariness exist, the court will treat the statement as one
voluntarily made so as to avoid trial within trial and later the court will decide
on the weight to attach to such statement.

Judges Rule

The essence of the judges’ rule is to make sure the statement of the
accused is made voluntarily. The rules are as follows.

Rule 1: When a police officer is trying to discover whether or by whom

an offense has been committed, he is entitled to question any person,
whether suspected or not, from whom he thinks that useful information
may be obtained. The police officer can do this whether or not the
person concerned has been taken into custody provided he has been
charged with the offense or informed that he may be prosecuted for it.

Rule 2: Caution must be administered before taking statement. As soon

as a police officer has evidence that would afford reasonable grounds
for suspecting that a person has committed an offense, he shall
caution that person or cause him to be cautioned before putting to him
any questions, or further questions, relating to that offense. The word
of caution is expressed as: “You are not bound to say anything but
what you say may be put into writing and given in evidence.”

Rule 3: Information as to time, place and persons present are to be

kept. 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
he kept

Rule 4: If a suspect intends to write his own statement, he should be

asked to write and sign the following statement before he starts writing
out his statement: "I make this statement of my own free will and
volition. I have been told that I need not say anything unless I wish to
do so and that whatever I say may be given in evidence". And if it is
written by a police officer the accused must state at the end of the
statement thus: "I have read the above statement and I have been told
that I can correct, alter or add anything I wish. This statement is true. I
have made it of my own free will and volition". Both questions and
answers must be recorded in full and signed by the maker and
interrogating officer.

Rule 5: Bring statements made by a co-suspect to the suspects notice.

If at any time after a person has been charged with, or informed that
he may be prosecuted for an offense, a police officer wishes to bring to
the notice of that person any written statement made by another
person who in respect of the same offense has also been charged or
informed that he may be prosecuted, he shall hand to that person a
true copy of that written statement, but nothing shall be said or done
to invite any comment.

Rule 6: Police officer and law enforcement agencies should comply with
the rules.

However, note that non-compliance with the judges’ rule does not vitiate the
proceedings. Similarly, failure to observe does not render statement
inadmissible. See Alarape v. State. Also, the rules do not apply in the north.
Its equivalent in the north is the criminal procedure. Besides, the rule cannot
be enforced by the courts. R. v. Viosin. The effect of failure to administer the
Judges’ rules has been whittled down by S. 31 of Evidence Act.

Rights of Suspect

The police officer making an arrest or in charge of a station shall inform the
suspect of his rights to:
 Remain silent or avoid answering any question until after consultation
with a legal practitioner or any person of his choice.

Consult a lawyer of his choice before making, endorsing or writing any

statement or answering any question put to him after arrest.

Free legal representation by Legal Aid Council

S. 6(2) ACJA; S. 3(2) ACJL Lagos; S. 29(2) ACJL Kano.

Trial within trial

There are two grounds for objecting to the admissibility of a confessional

statement, namely involuntariness and retraction. Where the suspect alleges
involuntariness, a trial within trial is conducted. The trial is for admissibility
purposes and to ascertain the voluntariness or otherwise of the statement.
Charles v. FRN; Ibeme v. State.

In retraction, the statement is admissible and no trial within trial is required.

However, before acting on it, the court must establish that the accused made
it. Oguno v. State. The court would ascribe probative value to the statement
based on the evidence available to it. Isong v. State.

Denial of confessional statement does not affect admissibility. It is an issue of

fact to be resolved in case of trial and judgement. Objection on the grounds
of retraction is to be taken at trial not on appeal. Olalekan v. State

In a trial within trial, the standard of proof is beyond reasonable doubt. S. 29

EA; Bright v. State. The burden of proving voluntariness lies on the
prosecution. Also, the prosecution testifies first in trial within trial. Effiong v.
State.

An objection to an involuntary confessional statement should be made

timeously. It should be made at the point the prosecution seeks to tender the
statement as evidence.

Objection to the admission of a confessional statement is to be raised when

it is sought to be tendered. See Olalekan v. State.
The ruling in trial within trial if against the prosecution will not terminate the
proceedings. Gbadamosi v. State. The TWT is simply a mini trial, after which
the parties revert back to the substantive case.

Can evidence adduced during TWT during the main trial? No, such cannot be
relied upon because a trial within trial is a separate and distinct proceeding
from the main trial. Evidence adduced therein cannot be transplanted,
injected, or imported into the main trial. Ayoade v. State.

Can trial within trial be conducted during defence? According to FRN v.

Mamu, the confessional statement can be tendered through the defendant
himself typically in cross examination. So, yes, TWT can be conducted during
defence.

Species of retraction

Statement not signed

Denial that signature is not his

Where he states that the statement was incorrectly recorded

Where he alleges that he never made an oral confession credited to

him

Allegation of altering his statement

Where the defendant relies on the doctrine of non est factum, the
confessional statement is still admissible. Adesina v. FRN

Alibi
Alibi is a claim by a suspect that he was not present at the scene of a crime
as he was elsewhere at the instructive time. Lawali v. State.

If you raise alibi, you must supply particulars to make the police investigate.
Is alibi a plea or a defence? Alibi is a defence and not a plea. Nomayo v.
State, Azeez v. State, Usufu v. State. You are to raise alibi at the earliest
possible time. At the time of arrest. Kareem v. State, Musa v. FRN.

How to raise defence of alibi

Suspect must state orally or in writing that he was not at the scene at
the time of the alleged offence

Suspect must give particulars of the alibi

Particulars include the place where he was at the time offence was
committed, very time he was there and persons with whom he was
with. Ronke v. FRN

Time must correspond to the time the offence was committed. See
Okosi v. State, Ndidi v. state.

Must be raised timeously. Ebemehi v. State

The police do not owe a duty to investigate a defence of alibi that was not
raised at the earliest opportunity. Also, in the case of irreconcilable alibi,
there is no duty of the prosecution to investigate. Ozaki v. State

The SC held if raised for first time at the trial court, it does not merit
consideration. Ebemehi v. State. The evidential burden of providing alibi is on
the suspect; S. 136(1) & 137 EA. Alibi cannot be raised by proxy (on your
behalf). Jiya v State

Burden of proof lies on the defendant. State v. Adu. The standard of proof is
on the balance of probabilities. Notably, evidential burden on suspect while
legal burden is on prosecution. Attah v. State.

Once alibi is properly raised by the suspect, the police has a duty to
investigate or verify the defence of alibi before taking the suspect to court. If
the police do not investigate, it renders the alibi unrebutted which may
vitiate the proof beyond reasonable doubt. Suspect may again raise it in
court and this time the court has a duty to look into it. The Supreme Court
has held that failure to investigate alibi raised at the earliest opportunity
without ambiguity will lead to an acquittal. See Kareem v. State

How the prosecution discharges the burden of

disproving alibi

By adducing material evidence to convince the court that the accused

was at the scene of the crime. Azeez v. State

By connecting the accused person with the commission of the offence

that his defence of alibi cannot be true. Yanor v. State

Once properly raised, it must be considered by the court, even where the
court believes that such defence may not avail the accused. Ogoala v. State

Confession once voluntarily made destroys the defence of alibi. Ogoala v.

State

Alibi need not be investigated when it is used as a ploy to send the police on
a wild goose chase. Olaiya v. State. Thus, where police is able to fix the
suspect at the scene of the crime or where the account/particulars is vague,
the police has no duty to investigate. Saka v. State; Ebemehi v. State

Identification Parade
It is possible that mass arrest has been made in connection to an offence
committed and the victim is not able to pinpoint the suspect. An
identification is conducted in such a case. More specifically, it is conducted:

Where the identity of the suspect is in issue

Where the ability of a victim or witness to recognize a suspect is in

issue.

Omah v. State; Archibong v. State

An identification parade is necessary:

 where the victim did not know the accused prior to the offence

Where he was confronted by the accused for a short time.

Where the victim due to time and circumstances might not have had
opportunity of observing the features of the accused. Almu v. State;
Maba v. State.

Factors the court will consider before placing

reliance on ID Parade

Circumstances in which the eyewitness saw accused

Length of time the witness saw accused

The lighting condition at the crime scene

Opportunity of close observation of defendant by witness

Description of the accused give to the police soon after the incident.
See. Lawali v. State

Other types of identification

Dock, video, voice identification, photograph, handwriting, fingerprint

identification, palm prints.

Rules guiding identification parade

Code of Practice of Identification of Persons by Police Officers (Code D)

pursuant to the Police and Criminal Evidence Act of 1984 England

Nigerian Police Training Manual

Essentials of ID Parade

Description and features of the suspect given to police

Opportunity to identify suspect physically. Ikemson v. state

Procedure for Conducting Identification Parade

A senior police officer (Superintendent of Police) is to be in charge of

the parade. He must not take part, though present.

Venue must be well illuminated

There should be separate entrance and exit to minimize contact

between persons

The suspected is planted in the midst of eight other persons

Where more than one person is to be identified or paraded, there must

be 12 persons in the parade.

They must be of similar description in terms of height, age,

complexion, appearance and status in life with the suspect

All persons other than those directly concerned are excused

Police men can form the parade but must remove their force number if
they are on police uniform.

The suspect will be handed form D48 prior to commencement of

parade

No officer is permitted to speak to the witness except the officer in

charge who must give instructions in audible voice

Witnesses must not be allowed to see the suspect before he is placed

in the parade.
 To be conducted in a place away from the public

Photograph of lineup of persons including suspect to be taken before

victim is invited.

If identified the witness will place his hand on the shoulder of the
suspect in the parade for a photograph to be taken

A repeat parade will be constituted with different set and the identified
suspect will be taken to a different position

If identified again, a phot will be taken with the victim/witness hand on

the shoulder of the suspect

Where there are two or more witnesses, they must identify the suspect
separately

The suspect may be allowed to change position. After each witness

At the end of the parade, the officer in charge will complete Form D49
and D50

See Mustapha v State

Handling of exhibit
Police may seize any incriminating items found at the premises of the
scene of crime

The items are handled and kept by the exhibit keeper

The exhibits must be kept in an exhibit room or designated place by

the exhibit keeper and properly labelled.

Police must maintain an exhibit register. S. 10(1) ACJA

Where the exhibit is to be taken to a laboratory for scientific test, it

must be handled by an officer with utmost care. Ishola v. State
Constitutional rights of a suspect at a police station

Access to counsel. S. 35(2) CFRN; S. 3(2)(b), 9(2)(a) ACJL Lagos; S.

35(2)(b) Police Act. S. 6(2)(b) ACJA; S. 29(2)(b) ACJL Kano

Not to be unreasonably restrained. S. 34(1) Constitution. S. 34 Police

Act 2020. S. 5 ACJA; S. 2 ACJL Lagos 2015; S. 28 ACJL Kano.

Right to be duly and promptly informed of his offence. S. 35(3) CFRN

Dignity of his person. S. 34(1) CFRN; S. 8(1)(a) ACJA; S. 37 Police Act

Right to free legal aid. S. 6(2)(c) ACJA; S. 3(3) ACJL Lagos

Right to bail. S. 35(1) CFRN; Eda v. COP;

Right to be silent. S. 35(2) Constitution; S. 6(2)(a) ACJA; S. 3(2)(A) ACJL

Lagos; S. 29(2)(a) ACJL Kano.

Right to arraignment. S. 35(4) CFRN; S. 8(4) ACJA; S. 31(4) ACJL Kano;

S. 17(d) ACJL Lagos

Right of interpreter

Right to be presumed innocent S. 36(5) CFRN

Right to receive compensation and public apology for wrongful arrest

Right to a decent cell condition

Adequate time to prepare for defence

Right to not be arrested in lieu

Bail Pending Investigation
Bail is a constitutional right. S. 35(1) 1999 CFRN. A suspect can apply for bail
upon arrest at the police station before or while investigation is ongoing.
Albeit the police cannot grant bail on capital offences.

Procedure to obtain police bail

There is no statutory provision for the procedure to apply for police bail.
Application for bail to be made to the DPO or head of the police location
investigating the case. In practice, application is in writing, by the suspect,
his counsel or surety. Police bail is subject to arraignment.

Terms of bail

Personal recognizance

Entering into a bond

Provision of surety

Note that deposit or payment of money is not one of the

terms/conditions of this type of bail. Bail is free.

Options available to suspect denied bail

Application in court for release from custody. S. 32(1) ACJA; S. 18(1)

ACJL Lagos; S. 51 (1) ACJL Kano. Bring the application to the
magistrate.

Enforcement of fundamental human rights pursuant to the

Fundamental Rights (enforcement Procedure) Rules 2009. You can
bring this at any point. Under this procedure, you don’t need to wait till
you’re detained. The relevant court is State High Court or Federal High
Court. No limitation of time. Joint application can be filed. See Chief of
Naval Staff Abuja v. Archibong & Anor; S. 46(1) CFRN1999.
 Habeas corpus procedure. Ord. 46 HCLS(CP)R 2019. Commenced via
motion ex parte. Supported by affidavit deposed to in person, written
address showing a prima facie case. Respondent to respond within two
days by filing a statement accompanied by verifying affidavit deposed
to by the office and statement to contain.

Power of Magistrate to visit police station. S. 34

ACJA; s. 53(1) ACJL Kano

Magistrate goes from police station to another within his jurisdiction every
month to know the number of people arrested within a period and take
necessary record about the people arrested and supply the necessary report
to the AG. He may grant bail where appropriate or demand the arraignment
of a suspect. This is different from jail delivery (which is the right for a judge
to visit police station and release wrongfully jailed inmates)

A designated high court judge may visit other FG agencies with power to
make arrest for the same purpose.

In Lagos, the police shall within 3 days of an arrest report to the nearest
Magistrate with a record of the cases of all persons arrested without warrant
within their station, the magistrate shall forward same to the AG for
necessary action. This rule is a novel provision of S. 20 ACJL Lagos.

Application for Assistance under Legal

Aid Act 2011
The Legal Aid council is responsible for the operation of a scheme for the
grant of free legal aid in certain proceedings to persons with inadequate
resources.

The main responsibility of the Legal Aid Council is to provide legal aid and
advice to persons entitled in respect of criminal matters through its criminal
defense service. S. 8(2) of legal Aid Act.

Beneficiaries are those whose income does not exceed the national minimum
wage. S. 9(1) LAA.
Notably, scope of legal aid to be given is in respect of criminal matters as
stipulated in the 2nd schedule to the Act. It also extends to prison monitoring
and review of cases of awaiting trial matters. S. 19(1)(4) LAA.

Proceedings in which legal aid may be given include, murder, manslaughter,

grievous bodily harm, common assault, affray, rape, armed robbery.

Legal advice is free in any office of the Council, courts, police stations or
prisons in any civil or criminal matter by legal practitioners appointed by or
in service of the Council. S. 1 Legal Aid Regulation.

An individual whose salary exceeds the minimum wage can receive legal aid
on a contributory basis.

Who can act for a person receiving legal aid?

Legal practitioner: A lawyer willing to act for persons will register with
the council.

Legal practitioners serving in NYSC

Non-government organizations

Legal clinics.

See S. 14, 16 and 17 Legal Aid Act

Notably, it is the responsibility of the police/court to notify person of the

availability of LA service.

Applications for legal aid are to be directed to the DG of Legal Aid and State
Coordinators stating personal details, particulars of applicant’s expenditures,
assets and liabilities, particulars of defendant, particulars of financial waiver
or any privilege existing between him and former counsel, signed and dated
by applicant or legal practitioner.

In Lagos State, in addition to Legal Aid Council, there is the office of the
public defender See S. 3{3J ACJL Lagos. 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.

Eligibility for Legal Aid

Beneficiary does not have any income

His annual income does not exceed minimum wage

Court refers his case to Council vide Form No. LAC1

He is placed by the council in their estimation**.

Where it is reasonable
Draft Example

LETTER HEAD

Our Ref: Your Ref Date

The Divisional Police Officer

XYZ Police Command,

Dear Sir,

APPLICATION FOR THE BAIL OF [NAME OF SUSPECT]

We have been instructed to represent XYZ and we have been instructed to

apply for bail of the above-named suspect.

We understand that the following suspect(s) are detained in your station.

We therefore apply for the bail pending arraignment.

[Mention that they have reasonable surety, mention name of surety and
relationship of surety to the suspect]

Conclusion

Yours faithfully,

Signature

Name

For: Your law Firm

 WEEK SIX: JURISDICTION OF COURTS
AND VENUES OF CRIMINAL TRIALS
A key to understanding the jurisdiction of courts in criminal trials lies at the
heart of the concept known as prosecutorial discretion. This idea refers to the
authority that prosecutors have in criminal cases in Nigeria, which includes
the power to decide whether to charge someone with a crime, choose which
charges to file, plea bargain, decide the overall direction of a case within the
legal system, and discontinue cases at will. Prosecutorial discretion also
extends to where the defendant is charged as the prosecutors ultimately
determine in what courts and in which geographical location the criminal
matter is tried.

That said, it is necessary to note the three situations conferring jurisdiction

according to Madukolu v. Nkemdilim

Proper constitution as regards the number and qualification of the

judex. No member of the judicial panel is to be disqualified on any
grounds.

Subject matter is within the court’s jurisdiction and no feature in the

case prevents the courts from exercising its jurisdiction.

The case comes before the court initiated by due process of law and
upon fulfilment of any condition precedent.

Any defect in jurisdiction is fatal to the case, for the proceedings are a nullity
however well conducted and decided. The defect is extrinsic to the
adjudication.

Notably jurisdiction is statutory while criminal trials are territorial. No court,

strictly speaking has inherent jurisdiction to try criminal matters unless such
is conferred by a statute or the constitution.
How to determine jurisdiction?
The law setting out the jurisdiction, whether the Constitution or statute

The charge sheet or information before the court

Parties

Territory

Offences

Punishment

Onwudiwe v. FRN; Njovens v. State; Ibori v. FRN; Edet v. State; Roda v. FRN;
HEPA Global Energy Ltd v. FRN

Types of Jurisdiction
Original and appellate

Limited and unlimited

General and special

Concurrent and exclusive

Coordinate and supervisory

Procedural and substantive:

Territorial
Procedural and Substantive 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 an issue
stemming from subject matter jurisdiction, or the lack thereof cannot be
waived as the court ought to strike out such matter. Parties cannot conder
jurisdiction on a court even by their agreement.

Territorial Jurisdiction

This refers to the jurisdiction over criminal cases arising within the
geographical area or venue of the offence. Criminal trials are territorial. This
is because courts are only seised 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, and a state cannot legislate for another on criminal
matters.

When an act or omission which would constitute a crime occurred within the
territory of a state, the courts of that State would have jurisdiction. Thus, the
trial of an offence must be where the offence occurred. Assuming an offence
is committed across states, both states can exercise jurisdiction over the
offence. Similarly, where crime is partially, substantially or conclusively
committed in one state and the suspect arrested in another state, either of
the states can exercise jurisdiction. Also, where an offence was committed in
one state and the consequences ensued or the crime was completed in
another state, both states can have jurisdiction. See Njovens v. State; S. 12A
Criminal Code; S. 4(2)(b) Penal Code; S. 11 Criminal Law Lagos; Ss. 93, 96-98
ACJA; Ss. 111–115 ACJL Kano; Ss 58-63 ACJL Lagos.

In Okoro v AG Western Nigeria (1965), the court held that where an offence
occurred partly in one region and partly in another region, the courts in both
regions would have jurisdiction to try the offence. Also, in the case of Dariye
v FRN, the court held that where constituent elements of an offence occur in
different jurisdictions, the appropriate means to determine which court has
jurisdiction to try the accused is to identify what element of the offence in
the proof of evidence occurred where, any of the jurisdiction in which an
element occurred has territorial jurisdiction to try the defendant.

Notably, an offence can tried in a State where the victim or property is found,
having been transported there by the suspect or by a person knowing of the
offence. S.93 ACJA; S.111 ACJL Kano. However, this is not applicable in Lagos.

An offence committed in the course of a journey may be tried by a court in:

Which the suspect resides;

The victim or property resides, or

Any state passed during the journey. S.95 ACJA; S.112 ACJL Kano;
S.58(3) ACJL Lagos. (But in Lagos, where the suspect resides is not
included).

A criminal charge shall be filed and tried in the division where the alleged
offence was committed unless it can be shown that it is convenient to do
otherwise for security reasons. S.93(2) ACJA; S.111(2) ACJL Kano. In Lagos,
where it is commenced in a division other than the proper one, it may be
tried notwithstanding, unless the defendant object to it when he is called to
take his plea, and the Court may transfer to another division on the
application of the prosecution or defendant. S.58 (4) & (5) ACJL Lagos.

However, where there is a doubt as to which Magistrate Court ought to try an

offence, it shall be transferred to a High Court judge, on application by the
Magistrate or Defendant. S.61 ACJL Lagos

The principle that criminal trials are territorial extends to the Federal High
Court. Where the offence is a federal offence and triable by the Federal High
Court, the Federal High Court is considered to be of nationwide jurisdiction.
According to law, there is only one Federal High Court in Nigeria which is
divided into various judicial divisions. S. 19 & 45 FHC Act.

Despite the fact that the Federal High Court is one, there is still territorial
jurisdiction. Ibori v. FRN. Therefore, where all the elements of an offence
were committed in a particular judicial division, that judicial division will be
seised of such matter except the CJ 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. There are offences with federal
flavour, such as treason. Such cases will be triable in any of the federal high
court divisions regardless of territory. Abiola v. FRN; S. 249 CFRN. Note that a
party may apply to the Chief Judge of FHC to transfer a matter from one
division to another for purpose of convenience – S.19 (2) FHCA.

General and Special Jurisdiction

Courts with general jurisdiction have the power to try unlimited crimes
involving any kind of persons, but this jurisdiction is sometimes
circumscribed by courts with special jurisdiction which have power to try only
specific crimes or distinct persons.

Courts of General Criminal Jurisdiction

These courts could either be original or appellate in their criminal
jurisdiction. They are as follows.

Customary Courts

The customary courts in the South are created under fiat of the CJ, except in
Lagos which was a former colony. In the South, they were formerly called the
District courts and are constituted by the Customary Courts Laws of the
various states.

Lagos

Customary court in Lagos have powers to try:

Offences against bye-laws of local governments

Contempt in the face of court

Jurisdiction expressly conferred upon it. E.g. the Environmental

Sanitation Laws of Lagos
There are two grades of the customary court in Lagos, namely.

Customary Court Grade A with jurisdiction to impose 1 year

imprisonment or ₦200 fine.

Customary Court Grade B with jurisdiction with jurisdiction to impose 6

months imprisonment or ₦100 fine.

See S. 17, 2nd Schedule, Part 2, Customary Courts Law, Lagos.

The South

In the south, customary courts have similar jurisdiction as in Lagos. There

are three grades of the customary court, namely.

Customary Court Grade A with jurisdiction to impose 5 years

imprisonment or ₦1000 fine.

Customary Court Grade B with jurisdiction to impose 2 years

imprisonment or ₦400 fine.

Customary Court Grade C with jurisdiction to impose 1 year

imprisonment or ₦100 fine.

See S. 19 Customary Courts Law of Oyo State.

Note: Criminal appeals from the Customary Court go to the Magistrate Court.
S. 41 Customary Law of Lagos State. The Customary Court of Appeal does
not have criminal jurisdiction whatsoever, whether original or appellate.

Area Courts

The area courts are constituted by the Area Courts Edict and established by
warrant under the hand of the Chief Judge of the State. See S.3 Area Courts
Edict. The Area court has 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.

A person who consents to be tried by the court.

Note: The governor can decide to exclude the jurisdiction of the area court
over certain individuals.

Proceedings in area courts are conducted according to substantial justice

without undue regard to technicalities. S. 6 ACL; Jos Native Authority v. Allah
Na Gani.

In ALABI v. COP, it was held that framing of formal charges are not necessary.
It was held pursuant to S.387 of repealed CPC. What is required is a
statement of offence, with date and place and the value of property stolen
where applicable.

Area Courts in FCT

In FCT, there are two grades of Area Courts. See S. 17 Area Court Act

Upper Area Court: unlimited jurisdiction except in cases of culpable

homicide, with or without death.

The Area Court Grade 1: has jurisdiction impose a sentence of up to

five years imprisonment or ₦1000 fine.

In the 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. S. 9 FCT Abuja Area Courts (Repeal and Enactment) Act, 2010.

Area Courts in the North

There are four grades of Area Courts in the North. S. 17 Area Court Edict
1967
 Upper Area Court – to try all offences, except culpable homicide,
whether with death, or not, and capital offences

Area Court Grade I -- 5yrs or ₦1,000

Area Court Grade II -- 3yrs or ₦600 fine

Area Court Grade III -- 9mnts or ₦100 fine

Criminal Jurisdiction of the Area Court

Penal Code Offences: Section 16 (1) & (2) of the ACJL Kano provides
that any offence shown under the 7th Column of Appendix A to be
triable by the Native Court (now Area Court).

Non- Penal Code Offences: Section 17 of the ACJL Kano also gives
power to the Area Court to try any other offence not contained in the
Penal Code. This excludes Culpable Homicide punishable with death
and attempted Culpable Homicide and all offences carrying capital
punishment.

N.B. Appeals from the regular area court go to the Upper Area Court while
appeals from the Upper Area Court lies to the High Court.

Right of Audience of Lawyers in the Area Court

By virtue of S. 36(6)(c) CFRN (every person who is charged with a criminal

offence shall be entitled to defend himself in person or by legal practitioners
of his own choice). By the decision of Supreme Court in UZODINMA v. The
COP, a legal practitioner has a right of audience in an Area court, thus the
provisions of Section 390 of CPC and Section 28 of the Area Court Edict are
to their extent of inconsistency, void.

On whether a Senior Advocate of Nigeria can appear before an area court,

there are divergent positions. On the one hand, it is stated that a Senior
Advocate can appear in an Area Court but the privilege of SAN may be
withdrawn because it is a privilege. However, in Registered Trustees of Ekwa
v. Ijesha, the SC court held that a Senior Advocate of Nigeria cannot appear
before an inferior court.
Magistrate Court
For the purposes of this study, Magistrate Courts will be divided into four
different jurisdictions, namely Magistrate Court in Lagos, Magistrate Court in
the South (Oyo State as a case study), Magistrate Court in the FCT, and
Magistrate Court in the North (Kano State as a case study).

Magistrate Court in Lagos

The Magistrate Court of Lagos is created by Magistrates’ Court Law of Lagos,

2009. There are no longer cadres of magistrates in Lagos. Instead, there are
districts. In addition, the hierarchical order has been abolished. S.91 & 93
MCL. Therefore, all magistrate courts are equal in Lagos State.

The power to divide the State into Magisterial Districts is vested in the Chief
Judge. All magistrates are empowered to exercise criminal jurisdiction as
stated in the laws of the state.

Criminal jurisdiction

The Magistrate Court has jurisdiction to try the following offences:

Summary trial of offences. S.29(2).

Apart from offences stated in the criminal code, it can try offences
contained in certain laws stated in section 29(6) and the 3rd schedule
to the MCL.

It has summary jurisdiction over offences in the Criminal Law of Lagos

State 2011, Urban and Regional Planning Development Law 2005,
Personal Income Tax Law 2003, Environmental Sanitation Law 2003,
Lagos State Lotteries Law 2004 – S. 29 (6) MCL Lagos

Where a magistrate exercises its criminal jurisdiction, the fine or term of

imprisonment to be imposed shall not exceed the maximum fine or term of
imprisonment provided for that offence under the law. S.29 (3) & (4) MCL. A
magistrate shall not sentence a person to a prison term of more than 14
years. S.29(5) MCL. This confirms the existing position that no magistrate
has jurisdiction to try a capital offence. Also, a magistrate cannot try capital
offences.

If a Magistrate court which possess the jurisdiction to try offence, impose a

sentence more than the 14 years, an appeal can be made against the
sentence to the High court, on the ground that the magistrate court has
exceeded the 14 years maximum. The relevant order to be sought in that
instance would be an order to reduce the sentence and not an order to quash
the conviction. When the appeal is against conviction, it is a different matter.
EMONE V POLICE, QUARTEY V IGP.

In Lagos, when a magistrate is to impose consecutive sentences (run one

after the other), the sentences must not exceed 14 years.

Notably, in Lagos, the jurisdiction of the magistrate court can be increased

by the Attorney General on the recommendation of the Lagos State Judicial
Service Commission, subject to approval of the House of Assembly. S. 30
MCL.

Magistrate Court in the South

There are seven cadres of the Magistrate Court in the South (Oyo State).
They are as follows, in addition to the maximum punishment they can
impose.

Chief Magistrate Grade I -- 7yrs or ₦30,000

Chief Magistrate Grade II -- 7yrs or ₦25,000

Senior Magistrate Grade I -- 5yrs or ₦20,000

Senior Magistrate Grade II -- 4yrs or ₦15,000

Magistrate Court I -- 3 years or ₦10,000

Magistrate Court II -- 2 years or ₦5,000

Magistrate Court III -- 1 year or ₦2,000

All non-indictable offences, and indictable offences with the consent of the
Defendant, other than capital offences. Any trial of an indictable offence in
the south without consent of the defendant will end in a nullity.

The jurisdiction of any grade of Magistrates’ Court may be increased by the

Governor of Oyo State upon the recommendation of the Chief Judge.

Under S.25 Magistrates’ Courts Law, Oyo State, appeals from the decision of
the Customary Court go to the Magistrates’ Courts.

Magistrate Court in the FCT

There are seven cadres of Magistrates in the FCT. They are as follows, with
their jurisdictional limits for the imposition of offences.

Chief Magistrate I --- 10 years or fine not exceeding ₦50,000, or

caning.

Chief Magistrate II --- 8 years or fine not exceeding ₦45,000 or caning.

Senior Magistrate I --- 6 years or fine not exceeding ₦40,000, or caning

Senior Magistrate II --- 4 years, or fine not exceeding ₦35,000, or

caning.

Magistrate I ------------ 2 years, or fine not exceeding ₦30,000, or

caning.

Magistrate II ----------- 1 year, or fine not exceeding ₦25,000, or caning.

Magistrate III ---------- 6 months, or fine not exceeding ₦20,000, or

caning.

Magistrate Court in the North

The Magistrate Courts in the North (Kano State) are established by the Kano
State Magistrate Court Law and recognized by S. 6 and 8 of the ACJL Kano.
They have six grades:
 Chief Magistrate Grade I: 14years and/or ₦300,000

Chief Magistrate Grade II: 12 years and/or ₦200,000

Senior Magistrate Grade I: 10years and/or ₦100,000

Senior Magistrate Grade II: 8years and/or ₦70,000

Magistrate Grade I: 5 years and/or ₦50,000

Magistrate Grade II: 3 years and/or ₦40,000

The Chief Judge is empowered to divide the state into Magisterial districts to
be situated all over the State. The maximum jurisdiction of Magistrate Court
in Kano is 14 years, but in FCT, it is 10 years.

Jurisdiction over Offences

Offences contained in the Penal Code shown in the 6th and 7th Column
of Appendix A to be triable by the grade of Magistrate Court. Offences
so stated can be tried by magistrates of higher grades or by High
Court. Section 16(1) ACJL.

Offences contained in laws other than the Penal Code provided

jurisdiction is expressly conferred on the Magistrate’s Court.

Where the law is silent on Jurisdiction, Magistrate’s Courts can try such
offences where the punishment does not exceed its jurisdiction.

In the North, a Magistrate can try an offence it does not have jurisdiction to
impose punishment. What it does after the trial, and conviction is to state
the case to a higher court or High Court for punishment. There must however
be a valid trial and conviction by the Magistrate court. This is stating a case
for punishment and is different from stating a case for opinion. When stating
matter to a High Court for an opinion, the Magistrate simply seeks the
viewpoint of the higher court. After the opinion of the High Court, the
Magistrate continue the matter. S.295 CFRN 1999; Section 129 (11) ACJL
Kano
However, under ACJL Lagos, there is no such power to try offences it cannot
impose punishment.

The House of Assembly on the recommendation of the Chief Judge may

increase the jurisdiction in criminal matters of any Magistrate court. S.20
ACJL, Kano.

State High Court. S. 286 (1)(b) CFRN 1999

The high court is a court of unlimited criminal jurisdiction. S. 272(1) CFRN
1999. The jurisdiction of the state high court is only limited by two factors:

Where those offences are created by statutes that remove the

jurisdiction from the state high court, and

The jurisdiction of the State High Court to impose punishments is

generally unlimited but it cannot pronounce a sentence beyond the
punishment provided under statute. However, generally, the power of
a High Court

The SHC has jurisdiction over indictable and non-indictable offences. R. v.

Onubaka. A state high court can try a federal offence (an offence created by
an Act of the National Assembly) which grants the SHC jurisdiction. S. 286(1)
(b) CFRN 1999. When trying a federal offence, the SHC must apply the ACJA.
Ontario Oil & Gas Ltd v. FRN.

Examples of federal statutes that confer criminal jurisdiction on the SHC are:

S. 35 Trafficking in Persons (prohibition) enforcement and

administration act

S. 14 Advanced Fee Fraud and Other Related Offences

S. 19 EFCC Act

S. 9 Robbery and Firearms Act

In such cases (except the Robbery and Firearms Act), jurisdiction is
concurrent with the Federal High Court. Similarly, the SHC has concurrent
jurisdiction with the FHC over offences under S. 251(1) CFRN 1999.

The SHC also hears appeals from the magistrate court. S. 272(2) CFRN 1999.
In the North, the SHC also hears appeal from the Upper Courts.

Sharia Courts
This is distinct from Area Courts. It is equivalent of Magistrate Court for
Muslims. There are two cadres of Sharia courts recognized under the ACJL,
Kano., namely:

Sharia Court of Upper Grade

Sharia Court.

The Upper Sharia Court is established in every district of the state while the
Sharia Court is established in every Local Government in the State. S. 10
ACJL Kano

A Sharia court has jurisdiction over Muslim defendants and non-Muslims who
submit to the jurisdiction of the sharia. S. 11 ACJL Kano. Where several
defendants including non-Muslims who object to jurisdiction or refuse to
submit, separate trials to be ordered, one in the Sharia court and the other in
the Magistrate court.

Where the offence was jointly committed with a non-Muslim and cannot be
tried separately, the Sharia court can refer to the Magistrate court or other
court with jurisdiction to try the case. S. 11 ACJL, Kano.

The territorial jurisdiction of the Sharia court spreads all over Kano State. S.
14 ACJL Kano. Thus, it is irrelevant which division the offence occurred.

Jurisdiction over Offences

Penal Code offences: offences shown in the 6th column of Appendix A

to be triable by any court with greater powers and 7th Column of
Appendix A. S 16 ACJL, Kano
 Any other offence prescribed by the law establishing the Sharia court.

A sharia court is properly constituted where a single Al- Kali sits, however.
However, where it sits as an appellate court it shall be properly constituted
by two Alkalis. Notably, the Alkali of a Sharia court can impose Diya.

Court of Appeal
This is an appellate court of general jurisdiction. There is only one Court of
Appeal in Nigeria. S. 237 CFRN. It has many judicial divisions in parts of the
country for administrative convenience. It hears appeals from the State High
Court, Federal High Court, Court Martial. S. 240 CFRN 1999.

Supreme Court of Nigeria

This is the apex court in Nigeria with its venue in Abuja. It hears appeals from
the Court of Appeal. S. 233 CFRN 1999; Ajomale v. Yaduat.

Courts of Special Criminal Jurisdiction

These are courts with limited jurisdiction over criminal offences.

Federal High Court S. 251(2)-(3) CFRN 1999

Although civil jurisdiction of FHC is exclusive, criminal jurisdiction is not. By

S. 251(3) of the CFRN 1999, criminal jurisdiction conferred on the FHC, in
relation to matters listed under S. 251(1) is not exclusive. That means that
the state high court and federal high court will have concurrent jurisdiction.
Momodu v. State; FRN v. Nwosu. Examples of these offences range from
taxation statutes, violation of provisions of CAMA, offences under the
Customs and Excise Management Act, offences concerning banking, foreign
exchange and currency laws, criminal liability arising from patent, designs,
trademarks and merchandise marks, admiralty cases, bankruptcy and
insolvency, aviation and safety of aircraft, arms, ammunition and explosives,
drugs and poisons, etc.
However, where a specific statute gives exclusive jurisdiction to the federal
high court in relation to those matters listed in S. 251(1) of the CFRN, then
the federal high court will maintain exclusive jurisdiction in relation to those
specified matters. Examples of such statutes:

S. 26 NDLEA Act

S. 76(1) Terrorism (Prevention & Prohibition) Act 2022

S. 23(1) Money Laundering Act

S. 8 Counterfeit Currency Act

S. 73(1) Proceeds of Crime (Recovery and Management) Act

S. 103 of the Copyright Act

Prior to 1999, the Treason and Treasonable Offences Decree 1993 established
the Special Military Tribunal to try treason, treasonable felonies and similar
offences. However, the promulgation of the Tribunals (Certain Consequential
Amendments Act) 1999 transferred the powers of all such tribunals to the
FHC. Moving forward the case of Mandara v. AG Federation has now vested
the Federal High Court with jurisdiction over treason and reasonable felony.
S. 251(2) CFRN 1999.

It is noteworthy that the Federal High Court also has concurrent jurisdiction
over offences under the EFCC Act pursuant to S. 19 EFCC Act and under the
Advanced Fee Fraud Act pursuant to S. 14 of the Advanced Fee Fraud Act.

NB: the FHC can hear appeals from Magistrate Courts in criminal matters
transferred to the court, decisions of Appeal Commissioners under the CITA,
decisions of Immigration and Prisons Services Board. On the flip side,
criminal appeals from the FHC lie to the Court of Appeal.

Juvenile Courts
This court has powers to try children and young persons. It was established
under the Children and Young Persons Act, which has now been domesticated
as the Children and Young Persons Laws of various States.
A child is one less than 14 years while a person above 14 but less than 18 is
a young person. S. 2 Children and Young Persons Law. The relevant age is
the age of the commission of the offence not the age during trial.

Juvenile courts are manned by magistrates and is duly constituted by one

magistrate and such other persons as the CJ may determine. A juvenile court
has sweeping jurisdictions to try offenders, subject to two important
exceptions:

where is he tried alongside another adult person for an offence which

they jointly committed. S. 8(2) CYPL

in cases of capital offences – homicide. S. 6(2) CYPL

The trial in a juvenile court excludes members of the public. S. 6(5) CYPL.
Persons allowed are legal representatives, parties, witnesses, close
relatives/parents, accredited members of the press. The identity of offender
not to be published without leave of court. Section 6(5) CYPL.

Expressions such as “conviction” and “sentence” not to be used. S. 16.

Rather a finding of guilt is made. S.16 & 17 CYPL; Modupe v. State. Also, a
“child” shall not be ordered to be imprisoned and a “young person” shall not
be ordered to be imprisoned if he can suitably be dealt with in any other
way. Guobadia v the State. The word “criminal trial” must not be used, but
“delinquent trial.” In addition, a delinquent cannot be sentenced to death. No
young person imprisoned shall be allowed to associate with adult prisoners.

Where the [of the young person is in issue, it shall be proven by oral
declaration of parents, birth certificate, physical appearance of the
defendant, medical examination (this will prevail in case of conflict with oral
declaration of parents) R v. Olatunji; Guobadia v. State; S. 206 & 207; S. 264
& 265 ACJA.

Coroner’s Court
The coroner’s court is a court of inquest/inquiry and not trial. The court
exercises its fact-finding jurisdiction into death and circumstances of death.
There are specific statutory instances that necessitate an inquest such as the
following.
 where people die under unnatural circumstances, the coroner inquires
as to the cause of the death.

where there is a death sentence on a person, a coroner must perform

an inquest as to whether that person die through the means prescribed

where a person dies in police custody, a lunatic asylum or prison, there

must be an inquest.

Generally, see S. 4 & 6 Coroners’ System Law Lagos.

The coroner is typically a magistrate, and it gathers evidence by inviting

witnesses (who can be represented by counsel) or others. The coroner makes
its findings and forwards same to the AG who decides whether to prosecute
or not. A coroner does not give judgement. S. 3 Coroner’s Law Lagos.

If where no body is found, an inquest can be held to determine circumstance

of death. A coroner can also request exhumation of a buried person to make
its findings. The inquest of the coroner can be conducted on any day
including a Sunday or public holiday. Coroner court is not bound by the
provisions of the Evidence Act but may take evidence on oath.

Where the verdict of the coroner necessitates one, the AG may institute
criminal proceedings. Nolle prosequi is not applicable. That is, the AG cannot
exercise his powers of nolle prosequi in respect of proceedings in a Coroner’s
court

Coroner’s Verdict
The coroner upon the conclusion of the inquest can make a determination as
to:

Means of identification of deceased

Where, when and under what circumstances the deceased was found

Date of death

Cause of death
 Offence, if any to which the death is attributable.

Post verdict: The AG may file a charge based on findings. Aggrieved parties
may also ask for a review of the findings of Coroner. The State High Court
has power of inquiry over inferior courts.

Court Martial
The court set up by the Armed Forces Act is the courts martial. The court is
applicable to persons subject to service law (Army, Navy, Air Force). This
grade of people can commit military and civil offences.

Military offences are those that pertain only to members of the Armed forces
(and are not common to civilians) and are purely created by the Armed
Forces Act.

In contrast, civil offences are applicable to everyone and created under

general criminal laws but have been imported to the Armed Forces Act to
apply to military officers. E.g. murder, assault, armed forces.

The courts martial has jurisdiction to try only people subject to service law
for both classes of offences. S. 130 of the AFA. Note that the Police and
paramilitary agencies like the Immigration and Customs servicemen are not
subject to service law. See Olatunji v. The State.

A person subject to service law can be caught by civil authorities for “civil
offences.” However, if caught, they can be tried by both the general courts
and courts martial. It is the prerogative of the civil authorities to hand him
over to the Armed Forces for trial at a court martial.

The courts martial can only hand over military punishments such as
demotion. However, where a trial of a person subject to service law is first
undertaken by a regular court for a civil offence and is convicted, he cannot
be tried again by courts martial for that same civil offence. This will be
different if it was a military offence. A regular court does not have jurisdiction
over a military offence, only a court martial does.

If a court martial starts a trial of a person subject to service law over a civil
offence and convicts him, he can also be tried by regular courts. But the
regular courts must take into cognizance the punishment imposed by the
courts martial. Jafaru Mohammed v. EFCC.

Thus, where a person is convicted and acquitted by a Court Martial, he

cannot be tried again by a Civil Court. This is because it is a superior court of
record whose appeals go directly to the Court of Appeal. S.240 CFRN, and a
trial by the civil court will amount to a violation of Section 36 (9) of the 1999
Constitution. However, if there is trial, and conviction or dismissal first by a
competent civil court, it will oust the jurisdiction of the court martial. Section
171 AFA.

Types of Court Martial

There are two types of court martial, namely Special and General Court
Martials. S. 129 Armed Forces Act.

It is important to note the distinction between composition and constitution

of court martials. Composition deals with the number of people required to
form a court martial. Constitution deals with the qualification of the people
forming the court martial, e.g. they must not be junior to the officer. They
must be of either the same rank or senior officers to the accused person. The
president of the court and members must be above or of the same rank or
seniority of the accused but not below his rank. S. 133(1); S. 133(3)(b) AFA.
Where there is a junior person, the trial is a nullity. Iberi (Rtd) v. AG
Federation; Okoro v. Nigerian Army.

Where there are no members of senior or equal rank, the convening officer
may appoint any service officer as president of the court martial in lieu, and
any other members in lieu, after consent of the superior authority. S. 133(7)
AFA.

General Court Martial

This court martial consists of:

A president and not less than 4 members

A waiting member

Liaison officer
 Judge advocate

Special Court Martial

This court martial consists of:

A president and not less than 2 members

A waiting member

Liaison officer

Judge advocate. S. 129 Armed Forces Act.

For the purposes of deciding the composition of a court martial, a waiting

member, judge advocate and a liaison member are considered adjunct and
are not necessary to the composition of the court. Obisi v. Chief of Naval
Staff. Thus, the absence of any of these adjunct members will not nullify
proceedings.

Members of a court martial must themselves be subject to service law, and

must be at least 5 years in service. Section 133(2) AFA. All members of the
Court Martial are appointed by the convening order. S.133 AFA

The responsibility of the liaison officer is to liaise between the Convening

officers and the members composing the tribunal.

A judge advocate must be a commissioned officer and a legal practitioner of

not less than 3 years post call. S. 133(5)&(6) AFA The judge advocate is to
guide and advise the court on rules of evidence, practice and procedure.
However, the courts martial is not bound to take advice of judge advocate to
make findings. Musa v. Nigeria Army. Where there is no such person, upon an
application to Director of Public Prosecution, any legal practitioner can be
appointed.

If death sentence is to be imposed, a general court martial must be

constituted by not less than 7 members. S. 130(1) AFA. A special court
martial shall have the powers of a general courts martial.
Jurisdiction over Persons

The sole jurisdiction of the court martial are persons subject to service law. S.
130(1), 168 AFA. This jurisdiction over persons subject to service law will
continue 3 months even after such persons have left service. After three
months, the jurisdiction of courts martial is statute-barred. Exception is in
cases of mutiny, failure to suppress mutiny, desertion or civil offence
committed outside Nigeria. There will be no limitation period of the above
offences. S. 169(2) AFA. NAF v. Obiosa.

Generally, trial of offenders subject to military law for an offence (other than
mutiny, failure to suppress mutiny, and desertion) must commence within
three (3) years of committing the alleged offence. S.169 (1) AFA. Also, a
military officer who commits a civil offence outside Nigeria can only be tried
by a Court-Martial with the consent of the AGF, subject to the period
prescribed by the law creating the offence – S.169 (1)(b) AFA.

Convening a Court Martial

The convener of a court martial is the officer on whose order the court is set
up. A convening order by the appropriate authority is the life and blood of
the jurisdiction of a court martial. Bakoshi v. Chief of Naval Staff; S. 131(1);
Sheje v. NAF.

The following can convene a court martial.

General Court Martial

President

Chief of Defence Staff

Service Chiefs.

General Officer Commanding. This can be a brigadier, colonel,

lieutenant colonel or corresponding rank having command of a body of
troops.

An officer acting in place of the above. S. 131(2) AFA.

Special Court Martial

Any person who can convene a general court martial

A commanding officer of a battalion in a special unit, or of a

corresponding unit.

A convening officer cannot be a member of the court martial. Rules of natural

justice.

The power to convene can be delegated. See. S. 131(4). NAF v. James. The
constituting authority can delegate to senior officers of a detached unit,
establishment or squadron. Section 131 (4) AFA. The delegation cannot be
done orally, as there must be a convening order in writing which is
mandatory. Bakoshi v. Chief of Naval Staff. Subsequent order in writing,
validates the oral instruction which is defective.

Rules of Procedure

The ACJA shall not apply to a court martial pursuant to S. 2(2) of the ACJA. A
court martial is bound by rules of evidence and manifestation of fair trials.
Nigeria Army v. Mohammed.

The AG shall not enter into a nolle prosequi pursuant to S. 174(1)(a-c) CFRN.
In a court martial, the charge sheet is to be signed by convening officer. The
decision of the court must be signed by president of the court and the judge
advocate at the time of delivery. Failure to do so will render the decision void.
Army Rules of Procedure, Rule 76 of 1972; Yakubu v. Chief of Naval Staff;
Erizea v. Nigerian Army.

The decision of the court martial is by vote of majority and where there is
equality on sentence or any issues (except findings), the president of the
court martial has a second vote. Section 140 AFA.

However, where there is equality of votes on findings, the accused shall be

acquitted. A tally in finding, the accused is discharged. If tally on sentence,
the president has a second vote.
Concurrence of all the members to secure conviction of death, but where
there is no concurrence, it may award a lesser punishment under the Act, not
acquittal. S. 140 AFA.

A Court Martial must consists of at least seven (7) members to pass a death
sentence, and it must be approved by the Convening officer. S.130 AFA. Note
that the Liaison, Waiting, and Judge are not counted. Where a Special Court
Martial consists of only two members, it shall not impose a sentence beyond
one (1) year or death. S.130 AFA.

Where any member is absent from anytime during the sitting of a trial, he
can no longer take part in the proceedings. S.136 AFA. Where a Court Martial
is dissolved, the accused can be tried by another Court Martial. S.136 AFA

Appeals from Court martial

Appeals will lie from the decision of court martial to the Court of Appeal.
Where it involves death sentence, appeal is as of right. In other cases,
appeal is with leave of Court Appeal. S. 240 of CFRN 1999; S. 183 ADA

Application for leave to appeal must be made by an application by the

appellant within 40 days of the decision of the court martial. In the case of
death sentence, appeal must be lodged within 10 days of decision of court
martial. S. 184 AFA.

Commissioned Officers

Army Navy Air Force

Field Marshall Admiral of the Fleet Marshall of the Nigerian

Air Force

General Admiral Air Chief Marshall

Lieutenant General Vice Admiral Air Marshall

Major General Rear Admiral Air Vice-Marshall

Brigadier Commodore Air Commodore

Colonel Captain Group Captain

Lieutenant Colonel Commander Wing Commander

Major Lieutenant Commander Squadron Leader

Captain Lieutenant Flight Lieutenant

Lieutenant Sub-Lieutenant Flying Officer

Second Lieutenant Acting Sub-Lieutenant Pilot officer

- Mid Shipman -

Non commissioned officers

- Warrant Chief Party Air Warrant

Officer

Warrant officer Class I Chief Petty Officer Master Warrant Officer

Warrant officer Class II Petty Officer Warrant

Staff Sergeant Leading Rating Flight Sergeant

Sergeant Leading Rating Sergeant

Corporal - Corporal

Lance Corporal Able Rating Lance Corporal

Private Ordinary Rating Aircraftsman

Recruit Trainee Recruit

International Criminal Court

Article 5 of Rome Statute

Jurisdiction over persons at least 18 years at time of offence. No jurisdiction

over state parties

The ICC will assume jurisdiction where a person who committed the offence
is a national of a member state

State parties may refer the crime. UN Security Council can also refer to the
International Criminal Court

The ICC also has jurisdiction to entertain cases over offences that took place
in the territory of a state party.

The ICC does not recognize the death penalty.

There is the office of the prosecutor of the ICC which functions
independently. It investigates and prosecutes at the ICC. State parties and
their AGs may not prosecute.
 WEEK SEVEN: INSTITUTION OF
CRIMINAL PROCEEDINGS IN NIGERIA
Where there is no competence to institute criminal proceedings, any trial in
such proceedings is a nullity.

Olatunji v. State; Nwobike v. FRN

Who may institute criminal proceedings in Nigeria?

The Attorney General

They are the chief law officers of the federation and state, respectively. The
offices are created by the Constitution under S. 150(1) and S. 195(1) 1999
Constitution.

The powers of the AG Fed and AG State are contained in S. 174 and S. 211 of
1999 CFRN, respectively. Similarly, S. 104 ACJA; s. 69 ACJL Lagos; S. 121 ACJL
Kano.

Pursuant to the provisions of the Constitution, the AGs have power to do the
following.

Institute and undertake any criminal action before any court in Nigeria,
except court martial.

In instituting criminal action before any court in Nigeria, the AG Fed can only
institute action in relation to federal offences created by an Act of National
Assembly. S. 286(3) CFRN The power of the AG State relates to state offences
created by law of house of assembly. Anyebe v. State; Emelogu v. State;
Sadiku v. State
There are two instances in which ag of State can institute proceedings in
relation to federal offences.

Where the Act of National Assembly was created to function as a state

law. S. 315 CFRN

Where the AG State receives a fiat from the AGF to prosecute over
federal offences. S. 174(1) 1999 CFRN.

Does the AGF require fiat of AGS to prosecute persons under state offences?

AG has discretion to prosecute an action before any court. He has unfettered

powers to prosecute and also decide, upon perusal of the information, to not
prosecute. This right cannot be challenged. However, AGF and AGS are to
exercise this discretion in line with public interest, interest of justice and
prevent abuse of court process.

The AG has powers to delegate his powers to institute action. The law
officers in this department may institute the proceedings in the absence of
an incumbent AG.

S. 174(2); 211(2) CFRN; Saraki v. FRN; Comptroller Prisons v. Adekanye.

The power to institute action is not extended to court martial.

Power to take over and continue criminal proceedings. S. 174(1)(b) and

211(1)(b) 1999 CFRN

The AGF and AGS has power to take over and continue a criminal proceeding
already instituted by anyone who has such power such as EFCC, ICPC, NDLEA
or even private prosecutors.

Amadi v. FRN; Amaefule v. State

This power is sparingly used. However, there are circumstances that may
necessitate the instances where the AG takes over proceedings.
 Where the AG is of the opinion that the prosecuting authority is not
diligent enough in prosecuting and cannot bring the matter to a
successful conclusion.

Where a petition has been written to the AG complaining of any bias

against the authority prosecuting

In the overriding interest of justice.

This power can be done by the AG personally or he can delegate it as well to

any law officer in his department. There is no requirement that there be an
incumbent AG when this power is to be exercised by the law officers in the
AG’s department.

Power to discontinue criminal proceedings. S. 174(1)(C) and 211(1)(c)

CFRN 1999

This power is also known as “nolle prosequi” meaning “We shall no longer
prosecute.

The AGF and AGS can exercise this third power by discontinuing any criminal
proceeding that has been instituted or taken over him himself or anyone in
his office.

Nature of Nolle Prosequi

The AG have unfettered discretion in exercise of this power. He does not

need consent of the court. He also cannot be compelled to give reasons for
discontinuing the proceedings before the court. The power cannot also be
challenged by any authority whatsoever. When the AG exercises this power,
he can exercise it personally or by delegation to law officers in his
department.

When the AG is exercising this power personally, he can discontinue

proceedings orally before the court. Albeit, only the AG can enter an oral
nolle prosequi before the court. However, when he is delegating this power,
the delegation must be in writing. A nolle prosequi cannot be entered by a
law officer orally.

S. 107 ACJA; S. 71 ACJL Lagos; S. 124 ACJL Kano.

Nolle prosequi can be entered at any stage before judgement. Cannot be

entered on appeal

State v. Ilori; Audu v. AGF

The effect of nolle prosequi is a mere discharge. This means that the
defendant can be rearraigned on the same facts as long as the AG wishes,
but for the time being that the power is exercised, such defendant must be
discharged immediately. if he is in prison and not in court at the time of the
exercise of nolle prosequi, the registrar must send a notice of discharge to
the head of prisons to discharge him immediately.

Where the defendant is on bail and the condition of bail was entering a
recognizance, such condition/recognizance must be discharged immediately.
S. 107 ACJA; S. 71 ACJL Lagos; S. 124 ACJL Kano.

Clarke v. AG Lagos

Nolle prosequi cannot be exercised where there is no incumbent AG. This is

because the power is solely bestowed on the person occupying the office of
the AG and not the position itself. Obasi v. State; AG Kano v. Hassan.

Locus classicus on Nolle prosequi: State v. Chukwurah

Distinction between power of withdrawal under ACJA and ACJL and Nolle
Prosequi

S. 108(1) ACJA; S. 73 ACJL Lagos; S. 125 ACJL Kano.

In any criminal proceeding, the prosecutor may on his own, or on the

instruction of the AG withdraw the proceedings. In withdrawing, he must
seek the leave of the court. This power of withdrawal must be distinguished
from nolle prosequi. The power of withdrawal can be exercised by any
authority who has power to institute criminal proceedings before any court in
Nigeria. The AG of the State/Federation can give instruction to such authority
to withdraw proceedings. Nolle prosequi is discontinuation of the suit and
terminates the entire proceedings. Withdrawal could be discontinuation of a
particular charge on the sheet. Withdrawal can be done orally or in writing.

In nolle prosequi, the AG cannot be compelled to give reasons for the

exercise of that power. However, a prosecutor exercising the power of
withdrawal must state the reason for withdrawing the suit. The effect of a
withdrawal will depend on the stage of the proceeding. Where the prosecutor
has concluded his case and the defendant has been called upon to give his
defence, the exercise of that withdrawal at that stage will amount to an
acquittal. Where the prosecutor enters a withdrawal during his prosecution or
before the defendant enters his defence, it will be a mere discharge.
However, in nolle prosequi, regardless of what point to the power is
exercised, it is a mere discharge. The power of withdrawal can also be
exercised at any time before final judgement.

Costs can be awarded against any authority exercising the power of

withdrawal, where the court is of the opinion that the proceeding before the
court is frivolous and an abuse of court process.

Powers of the Police to Institute Criminal Proceedings

Police can institute criminal proceedings subject to the powers of the AG

S. 66 Police Act 2020; S. 106; 268(1)&(2); 381 ACJA. S. 78(2) ACJL Lagos

The police can institute without recourse to the AG, but this power to
institute is subject to the AG’s power to take over and continue. This has
been validated by S. 66 of Police Act.

This power relates only to a police officer who is a legal practitioner. Such
legal practitioner can institute an action in any court of law. S. 141 Police Act
defines court. There is no distinction between superior or inferior court.
S. 66(2) makes a distinction between legal and non-legal practitioners. This
means that a police officer who is not a lawyer can prosecute in any court
subject to any applicable state or federal laws that regulates the institution
of criminal actions.

s. 78(1) ACJL Lagos implies that a police officer who is not a legal practitioner
can only prosecute criminal cases in the magistrate courts.

S. 123(2) ACJL Kano, only in magistrate court that police officers who are
legal practitioners can prosecute

S. 56 FHC Act, a police officer is not included as one of those that can
institute an action in the court

Osahon v. FRN. The court interpreted the then S. 23 of the Police Act that
makes provisions that a police officer can institute an action in any court in
Nigeria. The old police act did not make a distinction between a police officer
who is a lawyer and one who is not. There, the court held, that a police
officer whether a police officer or not can institute action in any court.

Olusemo v. COP, s. 98(1) FCT High Court Act was in contention, that section
specifically mentioned a police officer. The court held that a police officer
held that a police officer can institute an action in any court.

The implication is dependent on what is contained in S. 66(1) and (2)

Private persons

There are three categories of private persons

A private person who is not a legal practitioner

by virtue of S. 381(d) of ACJA and S. 254 ACJL Lagos, a private person can
institute a criminal proceeding by filing an information and such information
must be endorsed by a law officer or the AG that he has seen the information
and the offences thereof, and that he is declining prosecution, and such
person must have entered into recognizance by making payment of fees
prescribed under the statute. Note that this endorsement under the ACJA is
by a law officer in the department of the AG, while in Lagos, under the ACJL,
the endorsement could be by the AG or law officer. The amount of
recognizance is not provided for in ACJA, this will be determined by the court.
Under the ACJL Lagos, the sum of 50k will be deposited as assurance of
diligent prosecution and a surety duly recognized by the chief registrar in the
like sum.

Private legal practitioner acting without a fiat

A private legal practitioner may act without the AG. All he needs to do is
preparing an information and submitting to the AG for endorsement and the
AG will state that he is declining prosecution. S. 383-384 ACJA

A private legal practitioner acting with the fiat of AG. S. 104(2) ACJA; S.
121(2), 377(c) ACJL Kano; S. 70 ACJL Lagos 2015 as amended. FRN v.
Adewumi.

The fiat is a written authority instructing the individual to act on behalf of the
AG. The AG may authorize any person to exercise his powers in respect of a
federal offence. The fiat arising from such delegation must be shown in
court.

Life span of a fiat

Nwakwe v. The state. The court held that a fiat continues until the appeal is
terminated. Once a fiat is a given by the AG, it covers both substantive case
and interlocutory appeal.

Special prosecutor

S. 12(1)(b) & 13(2)(a) EFCC Act. S. 7(1)(c) & 8(2) NDLEA Act; S. 180 Customs
act

Some statutes creating offences stipulate who the prosecutors for such
offences, thus creating lay persons as special persecutors.
These special prosecutors are recognized as being able to prosecute an
offence under their relevant statute. The powers of a special prosecutor to
institute an action is subject to powers of the AG to take over and continue a
proceeding.

When instituting the action, the case is instituted in the name of the special
authority (e.g EFCC, NDLEA). Usually, these special prosecutors are legal
practitioners. See. S. 180(2) Customs Act which provides that any reference
to prosecuting an offence involves a legal practitioner in the customs.
However, special prosecutors may also include lay persons. S. 66 of the
Factories Act.

Limitation of time to commence criminal proceedings

The general rule is that an offender can be brought to court at any time.
Generally, there is no time limitation for the prosecution of crimes. Ochu v.
FRN. However, there are exceptions created by some statutes.

Treason – 2 years

Sedition – 6 months

Attempt to have an unlawful carnal knowledge of a girl under 13 years – 2

months. S. 218 CC

Unlawful attempt to have an unlawful carnal knowledge of a girl above 14

and below 16 – 2 months

Defilement of an imbecile – 2 months

Customs and excise management act – 7 years. S. 176(3) CEMA

Military offences committed during service to be prosecuted 3 months after

leaving service

Military offences committed during service to be prosecuted within 3 years.

Mutiny and failure to suppress mutiny are exceptions.
There is no limitation to prosecute conspiracy to commit any offence. R v.
Simmonds

The provisions of Public Officers Protection Act are not applicable in criminal
proceedings. S. 2(a) Public Officers Protection Act; Yabugbe v. COP; AGF v. AG
Bayelsa

How to institute criminal proceedings in court

The mode is dependent on the criminal procedure law of that court.

How to commence proceedings in FHC

The procedure is by preferring a charge. S. 33(2) FHC Act; S. 2(1), 86, 109
ACJA. Alamieyesiegha v. FRN

How to commence proceedings in NICN

The procedure is by preferring a charge or information. S. 2(1), 109 ACJA.

A charge is a written document that contains the name, sex, occupation of

the defendant, the offence(s) which the defendant committed, the time and
place and the signature of the law (or police) officer that preferred the
charge.

How to institute criminal proceedings in Magistrate court in the South

By a charge sheet signed by a law officer or police officer. S. 77(1)(a), 78(2)
ACJL Lagos; state V. Okpegboro. You prefer a charge at Magistrate court for
simple offences, misdemeanor and felonies.

Magistrate court in FCT

There are three ways of commencing criminal proceedings:

By charge sheet signed by a police officer (who may be a legal

practitioner or not)

By complaint whether or not on oath

First information report. See 112 ACJA

s. 109(a), 110(1)(a) & (b), S. 112(10) ACJA; O. 2, r. 1(b) FCT Practice

Directions on the Implementation of ACJA Provisions.

FIR

A victim will approach the police and levy his allegation against the
defendant. The police officer will reduce the information into writing and he
can form an opinion from the facts given to him.

Where a defendant approaches a police officer over an allegation or offence

against him, the police officer in charge will investigate the fact. Where he is
of the opinion that the information is founded in law, he will approach the
magistrate court and submit that report to the court. The name of the report
is first information report. Upon receiving the FIR from the magistrate, the
police officer might have arrested the defendant. When taking the FIR to the
court, he also takes the defendant to the court. Where he has not arrested
the defendant or he has been arrested and on bail, the court can compel the
attendance of the defendant by way of summons. Once the defendant is
presented before the court, the court will ask the defendant to take his plea
as to whether the FIR facts is true or false. Where the defendant denies the
facts the court will allow the prosecute to call its witnesses to substantial the
claim upon the FIR. This process of allowing the prosecution to exam its
witnesses on the FIR is known as short summary procedure.

How to institute criminal proceedings in High Court in Lagos (South)

The only recognized mode is by information. The information is a two-

paragraphed document that contains the statement of offence and
particulars of offence. S. 77(1)(b) and 69 ACJL Lagos

It is used to commence an action for indictable offences. Where a private

person is instituting an action, it is by information, and the information must
be signed by a law officer. S. 252(1)&(2) ACJL Lagos. S. 253 ACJL Lagos

The statement of offence contains the section of statute contravened by

defendant and the offence.

e.g stealing contrary to S. 00 Criminal Code.

Particulars of offence contains what is contained in a charge sheet, except

the provision of the law

How to institute in FCT High Court

Commencement is by information or charge

Note that when the AGF is instituting an action at FCT HIGH COURT, the only
mode is by information. S. 109(a) ACJA. In all other instances, whether by
private legal practitioner, special prosecutor or police officer, he will
commence the proceeding by either information or a charge.

How to institute criminal proceedings in the north

 This is by a charge S. 121, 126(B-E) ACJL Kano. The law officer or AG
prepares and signs the charge.

By complaint received by the AG. S. 126(f), S. 107(5) ACJL Kano

Consent is no longer required to file a charge in the North.

Practice direction

A practice direction relate to a set of rules made in promoting the main law
which it supplements. S. 254, 259 1999 CFRN.

Practice directions could also be made to implement or ensure the

implementation of the intent/purpose of a particular law. Practice directions
are made by persons who are the custodians of the main law, that is, the
Chief Judge (or Chief Justice or President) of courts. By virtue of S. 2(1) ACJA,
courts and other persons have power to efficiently implement the purpose of
the ACJA. Thus, the CJ of the FCT High Court and FHC can make practice
directions in furtherance of case management and quick dispensation of
trials at these courts.

The purpose of Practice Direction made by the CJ

Speedy dispensation of justice

To protect the interest of all parties concerned, most especially, the

interest of fair hearing

FCT High Court Practice Direction

O. 5, r. 1-6 provides for disclosure protocol

The parties should be able to agree on non-contentious fact. The prosecution

is to serve on the defendant all the materials, information or proof of
evidence that it intends to rely on to prove the charge against the defendant.
This practice direction is pursuant to S350(2) ACJA
FHC Criminal Trials practice Direction 2013

Applies to terrorism, kidnapping, trafficking in persons, rape, corruption and

money laundering cases.

Filing of charge is to be accompanied mandatorily by affidavit stating that

investigation has been concluded and that there is a prima facie case. S. 3(a)
FHC Criminal Trials Practice Direction 2013. This is to save the time of the
court, and prevent adjournments by the prosecution to procure witnesses or
evidence.

Where there is conflict between practice direction and rules of court, rules of
court supersede.

Federal High Court, National Charge

Industrial Court, Magistrate Court in
South, Magistrate Court in North,
High Court in North

High Court in South Information

Magistrate Court in North and Charge or FIR

Magistrate Court in FCT
 WEEK EIGHT & NINE: CHARGES 1 and 2

Essence of a Charge
A charge is important to give notice to the defendant of the offence(s) with which he
is charged in court. Odeh v. State. It is a constitutional requirement pursuant to S.
36(6)(a) of the 1999 CFRN (as amended) which provides that a person who is
charged with a criminal offence is expected to be informed in a language that he
understands of the nature of the allegation against him. Ogunye v. State. It is
noteworthy that the language of the court is English. For this reason, before a
charge is read to the defendant, he is asked if he understands the English
Language. If he doesn’t, the defendant has a right to an interpreter at no cost. S.
36(6)(e) 1999 CFRN.

A charge is also necessary to inform the court of the case pending against the
accused and to enable the court to determine whether it has jurisdiction over the
offence. Thus, a charge is a document which informs an accused person and the
court of the offence alleged against him, the place, date of the alleged offence, the
person or thing against whom the offence was allegedly committed and the
particular provision of a written law that makes the action or omission an offence.

Definition of a Charge
A charge or information is the originating process by which a defendant to a
criminal matter is brought to court. It is a document containing the
statement and particulars of offence(s) with which a defendant is tried before
a court of law.

S. 2 ACJL Kano defines charge as a statement of offence(s) with which a

defendant is officially brought to trial.

S. 494 ACJA defines a charge to mean the statement of offence or statement

of offences with which a defendant is charged in a trial whether by way of
summary trial or trial by way of information before a court.
S. 371 ACJL Lagos, a charge means the statement of offence or statements
of offences with which a defendant is charged in a trial whether by way of
summary trial or trial by way of information before a High Court or any Court
or Tribunal established by law.

Notably, under ACJL Lagos and the ACJA, the definition of a charge is expanded to
mean not only a charge but also an information.

Also note: The “charge” can mean the paper or sheet in which the offence of the
defendant is written, in which case it can also be called a “chargesheet.” In the
alternative, a charge can also refer to the counts or heads of charges in the sheet.
Ogun v. IGP; Ajegu v. IGP.

Distinction Between a Charge and an Information

Summary trial under the ACJL Lagos and ACJA is a brief trial while trial by
information requires that documents be made available to a defendant. In a
summary trial, all that is required is a charge sheet to which a defendant makes a
plea. Summary trials are usually in the magistrate court and Federal High Court and
are instituted by charges not information. S494 ACJA; Uwazuruike v. AGF.

A distinguishing feature of a charge in a summary trial and an information in a trial

by information is the presence of proof of evidence in the latter (information). In a
trial by information, an information is a comprehensive document which guides the
court, the prosecution and the defendant during trial.

Content of an Information

The charge, containing a statement of offence and particulars of offence

Proof of evidence. This in turn contains the following:

List of witnesses

List of exhibits to be tendered

Summary of statements of witnesses

 Copies of the statement of the defendant

Any other document, report, or material that the prosecution intends to use
in support of its case at the trial,

Particulars of bail or any recognizance, bond or cash deposit, if defendant is

on bail,

Particulars of place of custody, where the defendant is in custody,

Particulars of any plea bargain arranged with the defendant;

Particulars of any previous interlocutory proceedings, including remand

proceedings, in respect of the charge, and

Any other relevant document as may be directed by the court.

S. 204 ACJL Kano; S. 25(1) ACJL Lagos; S. 379 ACJA

Note: power of prosecution to the file additional evidence. S. 251(2) ACJL Lagos; S.
204(2) ACJL Kano; S. 379(2) ACJA

However, none of the above parts of the proof of evidence is present in a charge. It
contains simply the statement and particulars of offence merged into a sole
paragraph. This is why it is most applicable to summary trials.

Form of a Charge
Form is very important to drafting of charges. A charge must be drafted following
the exact order below.

Heading

The reference number. For both charges and information in both the
North and South, the reference is written as “CHARGE NO:” and this
should be on the right.

Parties
 Introductory paragraph or preamble, where applicable.

Body.

Directional paragraph, where applicable

Date and Signature

A charge is drafted by a drafting authority, and this differs across jurisdictions and
courts.

Parties

There are two parties to a charge, viz the complainant and the defendant. In all
jurisdictions in Nigeria, the accused person standing trial is tagged “DEFENDANT”
while the prosecutorial authority on behalf of the State is tagged “COMPLAINANT.”

Albeit it is important to make a distinction between prosecutorial authority and

drafting authority.

Prosecutorial authority is the party that can prosecute the case and whose name
will appear as a party to the case. Drafting authority, on the other hand, is the
party that signs the charge or information.

Court Jurisdiction Drafting Prosecutorial

Authority Authority

Magistrate Court North/FCT Magistrate Commissioner of

Police

Magistrate Court South Police officer (IPO) Commissioner of

Police

Magistrate Court North/South/FCT Police Officer Inspector General of

Police (federal
offences)
High Court North and South Attorney General of State (in state
State offences)

High Court Lagos Attorney General of The State of Lagos

State

High Court of North/South/ Attorney of General Federal Republic of

State Lagos of State (upon Nigeria (in federal
delegation of AGF) offences)

High Court FCT Attorney General of Federal Republic of

Federation Nigeria

Federal High Nigeria Attorney General of Federal Republic of

Court Federation Nigeria

S. 249 ACJL Lagos; S. 270 ACJL Kano; S. 268(2)-(4)

Where a private legal practitioner or a special agency (EFCC, NDLEA) prosecutes on

behalf of the Attorney General, the drafting authority is the Attorney General and
the prosecutorial authority in respective case will apply.

Where an offence is constituted under the Penal Code Act in the FCT the prosecuting
authority is the COP. However, Federal offences (such as the Miscellaneous Offences
Act) in the FCT which the Magistrate court is given jurisdiction, the prosecutorial
authority is the IGP.

Introductory Paragraph/Preamble

An introductory paragraph is different from a Preamble. Whereas an

introductory paragraph is used in Magistrate courts to introduce the drafting
magistrate and defendant, a preamble states the date and time of the court
session as well as the party informing the court of the charges brought
against the defendant. A preamble is used only where an information is
preferred, that is in the High Court in Lagos, the South and in the FCT (where
the AG commences action). All charges in the High Court FCT and South
must have an information. The preamble must state the session, the date the
session is holding, who is preferring the information, on behalf of who and
the person to be charged.

An introductory paragraph is written as follows:

I, [NAME OF MAGISTRATE], [RANK OF MAGISTRATE], do hereby charge you

[NAME OF DEFENDANT] as follows:

A preamble is written as follows:

At the session of the High Court of [STATE/FCT] holden at [LOCATION] on the

____ day of __________, 20____, the Court is informed by the Attorney General
on behalf of the State/Federal Republic of Nigeria that:

[NAME OF DEFENDANT] is charged with the following offences.

Body of Charge

This part is the actual charge in a chargesheet, and its form depends largely
on the jurisdiction.

Generally, in an information, you have a two-paragraph charge which

contains a statement of offence(s) and particulars of offence(s) written under
distinct headings. However, in a charge, the statement and particulars of
offence(s) is fused into one paragraph (with heads of charges if there are
multiple offences). However, in the Magistrate court in the North, there are
three paragraphs (the introductory paragraph, the head of charges, the
directional paragraph).

Two paragraphs in an information: statement of offence and particulars of

offence. Statement of offence is name by which offence is constituted
(Murder contrary to [add punishment section]). Particulars furnish the
offence to the context of the defendant. The difference between charge and
information is that charge contains statement and particulars in the same
paragraph while information separates them into two distinct headings.
In a charge, the head of charges are delineated as Charge One, Charge Two,
etc. Albeit this is only applicable to the Magistrate and High Court in the
North. All other courts in the FCT, South and Federal High Court, the charges
are delineated in Counts (that is, Count One, Count Two, etc.).

Directional Paragraph

In this paragraph, the drafting magistrate is directing the defendant to be

tried either by that court or by another court. The drafting magistrate must
be that same as the magistrate signing the charge. This section is only
applicable in the Magistrate court in the North and FCT.

Substance of a Charge

It is an opportunity for the defendant to know the offence he is alleged to

have committed. The defendant must have proper notice of how many
offences and what specific offences he is charged with.

Forms in the schedule may be used subject to necessary modifications. See

2nd and 3rd schedules to the ACJL Kano, ACJA; Appendix B to ACJL Kano. S.
146, 251(2) ACJL Lagos; S. 193 &377 ACJA; S. 200 ACJL Kano

Note drafting in FHC: S. 33 FHC Act

Language Used

Ordinary language, no technical terms except necessary. But if the offence is

technical, use the technical language.

For example, timing of an offence may not be relevant in crimes. But where
timing is relevant (like Burglary in night and housebreaking in day) use the
technical term and supply the time.

It is important so that the defendant may easily know the offence.

Rules of Drafting a Charge

The rules are handmaids for drafting of charges. They are not the main thing,
they simply assist us in drafting. Most of these rules, it is the exception that
is more relevant to drafting than the rules themselves. Only the rule against
ambiguity lacks an exception.

Rule against ambiguity

You should not draft a charge that is unclear and subject to multiple
interpretations. The particulars of the charge must be so clear that he can
easily take his plea. For you to draft against this rule, all the particulars of
the offence must be present in the charge. This rule relates to individual
counts/heads of charges. The defendant is to make a plea to each charge.
There is no block plea. A plea must be directed at individual charges.

For a charge not to be ambiguous, the following particulars must be present

in this exact order: D-D-P-O-P-S

Name of defendant(s)

It is possible that not all the defendants committed a particular count of

offence. In this aspect, you must ensure that the defendants are listed here
participated in the specific offence under this head of charge/count. See
principal offenders under S. 7,8 &10a Criminal Code.

In a case of armed robbery involving six robbers where only one robber shot
the policeman to enable them escape, all six will be liable for that murder
since the person did it in furtherance of their common purpose. Even the
informant will be liable for the murder, despite not being a part of the actual
murder or armed robbery.

However, if any of them deviates from the common purpose in the course of
the “transaction” only that person will be liable. For example, if one of the
robbers rape someone while they are in a hotel preparing for the robbery,
only the rapist will be charged for the offence of rape. The charge will be
under a different count but on the same charge sheet. As long as the
transaction is ongoing, everything that took place as to proximity of time will
be on the same charge sheet.

However, once the transaction ends, everything that happens marks the
beginning of another charge sheet.

Gender is not relevant in designating parties. If they are known by Alias, put
it in description.

Date of the commission of the offence

This is the date of the commission of offence. If the date of commission is in

the scenario, use that specific date. some offences (like conspiracy) do not
have specific date use on or about. However, do not use on/about if the
specific date is given. It is possible that the scenario does not give a date but
the offence is disclosed. In such case, use ellipsis or improvise. Awopejo v.
State; Aminu v. State.

The place of commission of the offence

You must state the place of commission of the offence. You must also state
judicial division or magisterial district as the case may be.

e.g. at No. 1, ABC Avenue, Ikeja within the Ikeja judicial division.

The offence itself

State the actual offence. Ex: stole the wristwatch etc.

The person against whom the offence is committed.

Mention the person the offence is committed against.

Ex: Stole the wristwatch belonging to one Mr Adekuku.

The punishment section of that offence

State the punishment section. “contrary to Section 319 of the Criminal Code.
Notes Under Rule Against Ambiguity

This is to be used if drafting in the Magistrate in North or South, High Court in

North and Federal High Court

For an information, the statement of offence will only have two of the above
particulars: the offence (description) and the punishment section. Ex: Murder
contrary to Section 319 of the Criminal Code

The remaining four will be under particulars.

The effect of non-compliance will not invalidate the charge or set aside
conviction. This is because the rule is simply meant to ensure the defendant
has appropriate notice. See Ogbomor v. State; Ogbudu v. State; Clement
Isong v. AG Fed

Note that each of the DDPOPS is to be taken, e.g. if the name of defendant is
wrongly stated, or no precise date of commission of the offence or the place
or the of commission, the person against whom the offence was committed.

Note S. 203(2) ACJL Kano, the photograph of the defendant may be filed with
the charge sheet. See also S. 196(2) ACJA. However, ACJA includes fingerprint
which Kano leaves out.

In an information, the statement of offence ends with “contrary to” and

punishment section. In a mere charge, it is stated as “punishable under.”

Where offences are created in several sections and only one punishable
section, the statement of offence (in an information) or the charge, it is
stated as contrary to and punishable under.

Ikpa v. State; S. 1 Advance Fee Fraud & Other Fraud Related Act; S. 10, 13,
14, 15, 16 & 17 Federal Highways Act

If you see a scenario where only the definition section is provided, do not
charge. Charge only under the punishment section, except if the definition
section also provides for punishment. Do not use both.
Rule against duplicity

The rule of duplicity deals with counts and not the entire charge sheet. This
means where more than one offence is in the same count or head of charge.
Each count should have one offence. S. 209 ACJA; S. 152 ACJL The defect of
duplicity go to the charge/count itself and not the entire chargesheet.

There are notable exceptions:

The distinction between property and money

Where there are sums of money involved in the offences of stealing, criminal
breach of trust, deficiency of money or other money related offences, you
can aggregate the entire sums and charge as one count/head of charge. S.
205 ACJL Kano; S. 148(2) ACJL; S. 197 ACJA. In aggregating the sums of
money, the amount must belong to one victim. If there is another victim with
ranges of amount stolen, that victim will have a separate count with the
sums involved aggregate.

You cannot aggregate for property. You must charge for each property in
separate counts. If someone stole 10 iPhones, that will be 10 different counts
for each iPhone stolen.

Ex:

Where a person stole NGN10 in January, NGN20 in February and NGN20 in

March, the count can read:

Between January and March 18, XYZ stole the sum of NGN50

This rule is not to apply to murder. Where a person kills 10 people by

shooting sporadically, that will be 10 different counts of murder.

Overt act of treasons. S. 37,38 CC

Adoption of Statutory Forms

S. 200 ACJL Kano; S. 146 & 353 ACJL Lagos; S. 193, 377 & 378(4) ACJA

If a form allows for a merger of two or more offences, it will not offend the
rule against duplicity.

Form 15 ACJA. Willie John v. State – only exception currently known,.

Appendix B ACJL Kano

Offences defined in alternatives

S. 356(2); S. 406 Criminal Code; S. 50 Criminal Law Lagos; S. 211(1) ACJL

Kano; S. 150(5)(a) ACJL; S. 203(1) ACJA

Where there are alternatives in multiple laws, they could be added under the
charge, but the court will only punish for one.

Also where a section has two offences rolled into one, the offence involved in
the scenario should be isolated and applied.

Duplicity will not invalidate the charge except where it occasions miscarriage
of justice. In case of miscarriage of justice, the count will be struck out.
Awobutu v. State; Onakayo v. FRN; Mamman v. FRN

Rule against misjoinder of offences

The general rule is that each offence must have a separate chargesheet.

Excepotions. S. 216 ACJL Kano; S. 209 ACJA; S. 153 ACJL Lagos

Where various offences are committed in the same transaction, you

can charge them in only one chargesheet. S. 216(C) lAGOS; S. 209(c)
ACJA

If a person commits multiple offences within the same year, any three
can be selected and charged irrespective of whether same or similar
 character or whether or not it is in respect of the same person. Dau v.
Kano Native Authority.

Acts or omission that constitute an offence falling within two or more

separate definitions, constituted under separate laws. E.g. Road Traffic
Law and Criminal Code (causing death by dangerous driving and
manslaughter).

Rule against misjoinder of offenders

The general rule is that for every offender, there must be a charge sheet.
Charging all offenders in the same chargesheet will occasion a misjoinder of
offences. However, the exceptions are more relevant in this case. S. 151 ACJL
Lagos; S. 215 ACJL Kano; S. 208 ACJA.

Principal offenders should be charged in the same charge sheet.

S. 7, 8 and 10a Criminal Code

Where more than one person formed a common intention to commit a crime,
they can all be brought under the same chargesheet as each one forms a
principal offender to the crime. If they participated in the commission of
crime together in furtherance of a common purpose, they are to be charged
together. In the course of execution of that common purpose, one of the
parties may deviate from the purpose but in the course of the same
transaction, then only he will be charged under the same chargesheet but
under a separate count for that deviation.

This exception also applies:

When a person is accused of committing an offence and another of abetting

or being the accessory to or for attempting to commit the offence.

When a person is accused of any offence of theft, criminal misappropriation,

and another of receiving or retaining. Haruna & 40 Ors v. State.

Note
The number of charges you will draft is circumscribed by the laws provided.
So, where two or more people form a common intention to commit a crime,
there is automatically conspiracy. However, if the section is not provided, do
not draft the charge.

Withdrawal

It is possible that a party to an offence withdraws before the actual

commission of the offence. Ex: two or more people form a common intention
to commit a crime and one person withdraws, whether the party withdrawing
will be liable will be dependent on several factors:

At what point did he withdraw?

At the time of the commission of offence, what was his mens rea?

Was his withdrawal communicated unequivocally to all the other

parties?

There is no hard-and-fast answer to withdrawal and it depends entirely on

the facts of the case. Ex: if the person withdraws on the date of the proposed
commission of the crime, the person will still be liable for conspiracy. Ex: if
the person falls ill and asks the rest to continue with offence but does not
join, he is as much a party because he has mens rea.

If the person withdrawing did not inform the other parties but merely didn’t
participate, he is still a party to the crime upon permission.
Draft Example Magistrate Court in North

In the magistrate court in North, there are three paragraphs – Introductory

paragraph, head of charges, directional paragraph.

IN THE MAGISTRATE COURT OF KADUNA STATE

IN THE ZARIA MAGISTERIAL DISTRICT

HOLDEN AT ZARIA

CHARGE NO: ___________

BETWEEN

COMMISSIONER OF POLICE …………………………………… COMPLAINANT

AND

JANE DOE …………………………………………………………… DEFENDANT

I, Mallam Dogo, Chief Magistrate II, do hereby charge you Jane Doe as
follows:

Charge One

That you Jane Doe, on the 20 th day of January, 2020 at No 5, Emir Road, Zaria
in the Zaria Magisterial District did steal the sum of 10,000 (Ten Thousand
naira) only the property of Okeke Okafor and thereby committed an offence
of theft punishable under Section ___ of the Penal Code Laws of Kaduna
State.

I hereby direct that you be tried by this court on the said charge.

DATED THIS 11TH DAY OF MARCH, 2024

Signed: _________

Mallam Dogo

Chief Magistrate II
Draft Example for High Court in North

A single paragraph draft unlike the Magistrate court.

IN THE HIGH COURT OF KANO STATE

IN THE KANO JUDICIAL DIVISION

HOLDEN AT KANO

CHARGE NO: _________

BETWEEN

THE STATE …………………………………………… COMPLAINANT

AND

JANE DOE …………………………………………………………… DEFENDANT

Charge One

That you, Jane Doe on or about the 20th day of March, 2022 at 10 Kano Street,
Kano in the Kano Magisterial District committed culpable homicide not
punishable with death by causing the death of A. B. and thereby committed an
offence punishable under section 224 of the Penal Code.

Charge Two

That you Jane Doe on or about the 12th day or February…

DATED THIS 11TH MARCH 2024

Signed: _________
 Kingston Bolade

Principal State Counsel

For: Attorney General Kano State

Draft Example for Federal High Court

IN THE FEDERAL HIGH COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

CHARGE NO: __________

BETWEEN

THE FEDERAL REPUBLIC OF NIGERIA …………………………….

COMPLAINANT

AND

JOHN DOE …………………………………………………………… DEFENDANT

CHARGE

COUNT ONE

That you Mallam Okon on the 14 th day of March 2009 at No. 3, Igbosere Road,
Abuja in the Abuja Juridical Division was in possession of 10 kilograms of
substances suspected to be heroin and thereby committed an offence
punishable under Section 11(d) National Drug Law Enforcement Act.

DATED THIS 11TH MARCH 2024

Signed: _________

Kingston Bolade

Principal State Counsel

For: Attorney General of the
Federation
Draft example for Magistrate Court FCT

The charge is a three-paragraph drafting in FCT.

IN THE MAGISTRATE’S COURT OF THE FEDERAL CAPITAL TERRITORY

IN THE ABUJA MAGISTERIAL DISTRICT

HOLDEN AT ABUJA

CHARGE NO: ___________

BETWEEN

COMMISSIONER OF POLICE …………………………………… COMPLAINANT

AND

JANE DOE …………………………………………………………….. DEFENDANT

I, Mallam Dogo, Chief Magistrate Grade II hereby charge you Jane Doe
(Defendant) as follows.

COUNT ONE

That you, Jane Doe, on or about the 12th day of …

I hereby direct that you be tried by this court on the said charge.

DATED THIS 11TH DAY OF MARCH 2024

Signed: _________

Mallam Dogo
Chief Magistrate Grade II
Draft Example in the High Court in South

In the South generally, trials are by way of two-paragraph information.

IN THE HIGH COURT OF ENUGU STATE

IN THE ENUGU JUDICIAL DIVISION

HOLDEN AT ENUGU

CHARGE NO: ___________

BETWEEN

THE STATE …………………………………………………………… COMPLAINANT

AND

JANE DOE ……………………………………………….. DEFENDANTS

JOHN DOE

At the session of the High Court holding at Enugu on the ………day of

…………20…… the court is informed by the Attorney- General of Enugu State
on behalf of the state that

Jane Doe

John Doe

are charged with the following offences:

COUNT ONE

Statement of Offence
Murder, contrary to Section 000 Penal Code

Particulars of Offence

Jane Doe, on or about the 12th day of …

DATED THIS 11TH DAY OF MARCH 2024

Signed: _________

Kingston Bolade

Principal State Counsel

For: Attorney General Enugu State

Draft Example for High Court of FCT

IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

CHARGE NO: ___________

BETWEEN

THE FEDERAL REPUBLIC OF NIGERIA ……………………………

COMPLAINANT

AND

JANE DOE

JOHN DOE …………………………………………………………… DEFENDANTS

At the session holding at Abuja on the ………day of …………20…… the court

is informed by the Attorney- General of the Federation on behalf of the
Federal Republic of Nigeria that

Jane Doe

John Doe

are charged with the following offences:

COUNT ONE

Statement of Offence
Murder, contrary to Section 000 Criminal Code

Particulars of Offence

Jane Doe, on or about the 12th day of …

DATED THIS 11TH DAY OF MARCH 2024

Signed: _________

Kingston Bolade

Principal State Counsel

For: Attorney General of the

Federation
Draft Example for High Court of Lagos

IN THE HIGH COURT OF LAGOS STATE

IN THE IKEJA JUDICIAL DIVISION

HOLDEN AT IKEA

CHARGE NO: ___________

BETWEEN

THE STATE OF LAGOS ………………………………………………

COMPLAINANT

AND

JANE DOE …………………………………………………………………………..

DEFENDANTS

JOHN DOE

At the session holding at Ikeja on the ………day of …………20…… the court is

informed by the Attorney- General of Lagos State on behalf of the state that

Jane Doe

John Doe

are charged with the following offences:

COUNT ONE

Statement of Offence
Murder, contrary to Section 000 Criminal Law of Lagos State 2015

Particulars of Offence

Jane Doe, on or about the 12th day of …

DATED THIS 11TH DAY OF MARCH 2024

Signed: _________

Kingston Bolade

Principal State Counsel

For: Attorney General Lagos State

Draft Example for Magistrate Court in the South (including Lagos): One
paragraph drafting.

IN THE MAGISTRATE COURT OF LAGOS STATE

IN THE IKEJA MAGISTERIAL DISTRICT

HOLDEN AT IKEJA

CHARGE NO: _________

COMMISSIONER OF POLICE ……………………………………. COMPLAINANT

AND

JOHN DOE ……………………………………………………………. DEFENDANT

COUNT ONE

That you, John Doe, on or about 12th February 2024…

DATED THIS ______ DAY OF ________, 2024

Signed: _________

ASP Kingston Bolade

Police Officer

For: Commissioner of Police Lagos

State
Amendment of Charges

Amendment can be done at any stage, even till date of judgment.

Applications for amendment can be done orally.

Whatever procedure is adopted in relation to an amendment will be

dependent on the phase of the amendment.

Amendment is in two phases: Pre-arraignment and post arraignment

amendment of charges.

Pre-arraignment amendment takes place before the defendant takes his

plea. In this case, the prosecutor will only be required to file another
charge/information, withdraw the earlier one and direct that the defendant
take his plea on the second information filed.

Amendment can be in the form of the substitution of an information.

In a pre-arraignment amendment, the court is not expected to do anything

other than to allow the defendant to take his plea on the new charge.

S. 216(3)&(4) ACJA; S. 154 ACJL Lagos; S. 223 ACJL Kano; Uguru v. State

Post arraignment amendment takes place after the plea of the defendant has
been taken on an existing charge and the criminal trial has commenced. In
that case, note the following:

Reading and explaining the charge

Fresh plea: the plea of the defendant will be taken on the amended
charge.

Adjournment: where the prosecution or defendant is not ready to go on

with the amended charge, an adjournment will be granted for them to
prepare on the amended charge.
 Endorsement: the trial court will make an endorsement of the
amendment in the records.

Recall or resummon of evidence: where a post-arraignment

amendment is granted, the prosecution/defence can recall witnesses
or resummon them in relation to the amended charge or they may be
allowed to call evidence only in relation to the amended count or head
of charge.

Where a defendant is unrepresented by counsel, the judge must inform him

of these options.

If the scenario does not state that trial has commenced, what you have is a
pre-arraignment amendment. The five steps above are only relevant to post-
arraignment amendment. Where the question is general, use both.

Objection to Charges

Where the charge is read to a defendant, he can raise an objection before his
plea is taken, usually on the grounds of a defective charge or lack of
jurisdiction (note that this can be raised at anytime). Ikomi v. State; Abacha
v. State; Shehu v. State; Egbe v. State

Note the difference between defect that is fundamental and mere irregularity
that is capable of amendment. A material defect is, for example, charging
under a non-existent law.

The current position

S. 260(2) ACJL Lagos: an objection as to the sufficiency of evidence in proof

of evidence is only to be taken after the close of the prosecution’s case. Prior
to Ikomi v. State, a person could raise an objection at the start of the case
based on the proof of evidence and the court would strike out the case.
However, now no such objection can be brought until the end of the
prosecutor’s case.
S. 159 ACJL Lagos: it is possible that one or two parts of a charge are
missing. In such cases, the defendant would have normally asked for a stay
of the trial while pursuing the objection or application. However, now, no
such stay shall be granted. The court will note the objections and rule upon it
by time of delivery of judgement.

S. 228 ACJL; S. 221 ACJA

S. 396(2) ACJA; S. 390(2) ACJL Kano; S. 374 ACJL 2021. If objection is taken to
the validity of a charge or information, ruling can only be delivered along
with the substantive judgment. Metuh v. FRN.

S. 306 ACJA; S. 307 ACJL Kano; S. 273 ACJL Lagos: no application for stay of
proceedings in a criminal matter will be entertained until judgement. Metuh
v. FRN.

These provisions do not derogate from right of appeal. But there just won’t
be a stay of proceedings.

Who can amend a charge?

The drafting authority generally can amend a charge.

Ethical Issues

Rule 37(4)&(5) RPC