The word, 'criminal' is derived from the word, crime. The word 'crime' is the same as the word, 'offence'. They are used interchangeably. A crime is an act or omission which under any written law is deemed to be crime, thereby attracting punishment. The distinguished characteristic of a crime is the singular criterion of the act or omission complained of or alleged, being designated a crime in a statute, whether an Act of the Federation, a Law of a State, an Edict of a State or a by-law of a local government.

In the above cases, it is trite law that a person shall not be convicted of a criminal offence unless that offence is defined and the penalty prescribed in a written law.

In the above cases, it is trite law that a person shall not be convicted of a criminal offence unless that offence is defined and the penalty prescribed in a written law.

In the instant case, a criminal action was instituted against the accused person under an Act which stipulated that proceedings for the offences constituted under the Act must be instituted within one calendar month. It was alleged that the offence was committed on May 30 and criminal proceedings were instituted on June 30. Counsel for the accused person raised a preliminary objection that the criminal action was statute barred because the action was commenced outside the statutory period of one calendar month. Counsel contended that the day on which the alleged offence was committed ought to be included in the reckoning of the statutory period of the calendar.

The court rejected counsel's contention and held that in reckoning the time within which an action is to be instituted, the day on which the alleged offence is committed is excluded. Therefore, the objection was overruled. On a case stated to the English High Court, the court held that there is no difference in the reckoning of time for the institution of both civil and criminal proceedings. In both types of proceedings, the day on which the cause of action arose is exclude. Thus, the appellate court affirmed the decision of the lower court.

In the above case, the respondent raised the defence of limitation of time to an action in slander instituted against him by the appellant on the ground that the action was statute barred for not to have been instituted for more than 3 (Three years) when cause of action arose. In computing time, the court excluded the day on which the alleged slanderous words were uttered and computed the time from the day after which the alleged words were uttered until the day the writ of summons was issued. The court therefore, held that the action instituted against the respondent was statute barred and dismissed the appellant's appeal.

In this case, the accused person was alleged to have committed the offence of defilement. It is provided under the law that a charge for the offence of defilement must be brought within two months of the commission of the offence. 19 months after, the accused was charged before the High Court for the offence of defilement. The court held that the charge of defilement preferred against the accused person 19 months after the commission of the alleged offence was statute barred. The court however, substituted a conviction for the lesser offence of indecent assault.

On appeal against conviction for the lesser offence of indecent assault, the Appeal Court allowed the appeal. In allowing the appeal, the appellate court stated that as the charge of defilement was brought over two months after the alleged offence was committed, the cause of action had been extinguished. Thus, the appellate court held that the whole trial was a nullity. The appellate court further held that the trial court erred in subsisting a conviction for a lesser offence.

The appellant was an employee of the respondent, gave to his subordinate the sum of N12, 000.00 to change into smaller denominations. The appellant and his subordinate were charged with conspiracy to steal and stealing. The appellant's subordinate was convicted, but the appellant was discharged and acquitted. The respondent subsequently terminated the appellant's appointment. The appellant sued the respondent for unlawful dismissal on the ground that he was not given a fair hearing before the termination of his employment.

The respondent demanded a refund of N12, 000.00 and counter-claimed from the appellant the sum of N12, 000.00. The appellant raised the plea that the counter-claim was statute barred because it was raised after the efffluxion of three months since the cause of action arose and was thus statute barred by virtue of the provision of section 2(a) of the Public Officers Protection Act. The Courts below rejected the appellant's plea of limitation on the ground that section 2(a) of the Public Officers Protection Act was not available to a public officer against his employer. He appealed to the Supreme Court. The Supreme Court, in allowing the appeal, held that the plea of limitation of time could be raised by an employee against an employer, in the same manner that it could be raised by an employer against an employee. The Apex Court held that the respondent's counter-claim was statute barred considering the period of time the counter-claim was raised.

In the instant case, the accused person was charged with armed robbery and he pleaded to the charge before the High Court. Subsequently, trials of armed robbery cases were transferred to tribunals. However, there was a transitional provision that all part-heard matters were to be concluded in the High Court. On appeal against conviction, it was contended that the High Court lacked jurisdiction to try the appellant because at the time, jurisdiction to try armed robbery cases was transferred to the tribunal, the appellant's case was not part-heard -- the appellant merely pleaded to the charge and no evidence had been taken, thus, the case was not part-heard. The Apex Court rejected appellant counsel's contention and held that a criminal proceeding is commenced with the taking of a plea from the accused. Once the plea is taken, even if evidence has not been adduced, the case is part-heard and the High court retained jurisdiction to conclude the case. The appeal was subsequently dismissed.

In these cases, the law is that criminal proceedings against a public officer alleged to have committed an offence in the course of the execution of his duty must be instituted within three months of the alleged commission of the offence

In these cases, the law is that criminal proceedings against a public officer alleged to have committed an offence in the course of the execution of his duty must be instituted within three months of the alleged commission of the offence

In these cases, the law is that criminal proceedings against a public officer alleged to have committed an offence in the course of the execution of his duty must be instituted within three months of the alleged commission of the offence.

Section 40 (1) Magistrate Court Law (Lagos State) 2009 provides:

"The court shall be opened throughout the year except on Saturdays, Sundays and public holidays for the transaction of legal business, and shall sit at such times as may, subject to any direction of the Chief Judge, be determined by the Magistrates."

Section 40(2) provides that notwithstanding Section 40(1) at least one court in every magisterial district shall be open and available for business on any given Saturday for the hearing of matters relating to remand, bail and other non- custodial disposition. Generally, in practice however, court usually sits from Monday to Friday.

Where proceedings are held on Sunday and public holiday - which are dies non juridicus - such proceedings are invalid, null and void. Where parties, however, request the magistrate or a judge to sit on a non-juridical day, the proceedings will be valid.

In the case above, the magistrate pointed it out to the parties that the day to which the case was adjourned was a public holiday. The appellant urged the Magistrate to take the evidence of his witness because it might be difficult to procure him another time.

The Magistrate convicted the appellant. He appealed on the basis that the Magistrate sat on a holiday. The appellate court held that although there was irregularity, since it was done in the interest of the defence and at its request, no miscarriage of justice could be said to have been occasioned, the irregularity notwithstanding

SECURING DEFENDANT'S ATTENDANCE TO COURT

There are three different ways of securing the appearance of a defendant before the court which would try him. They are:

(i) By Summons

(ii) By Warrant of Arrest

(iii) By Arrest without Warrant

Summons

Summons is usually preceded by a complaint laid before a magistrate or a judge. They are processes issued to an offender compelling him to appear before a court to answer a charge preferred against him.

What is a complaint? See section 2 of the Administration of Criminal Justice Laws of various States in the South and North, and section 494 (1) of the Administration of Criminal Justice Act 2015. Where a warrant of arrest is sought, a complaint must be in writing and on oath. See sections 89 (1), 37 of ACJA, section 80 of the Lagos State Administration of Criminal Justice (Amendment) Law 2020, sections 130, 101 ACJL Kano.

Summons can be issued or served on any day including Sunday or public holiday. See section 132 ACJL Kano. In Lagos State, it may be issued or served on any day from Monday to Saturday between the hours of 8 a.m. and 6 p.m. See section 81 ACJL Lagos.

Who May Issue Summons

Court summons to appear may be issued by a court against any suspect. The person served with the summons (the defendant) must sign the back of the duplicate to acknowledge receipt of service of the summons. Where the person to be served is unable to sign or mark the back of the duplicate copy of the summons, the summons must be served in the presence of a witness. A person served with summons, who refuses to acknowledge receipt, may be arrested by the person serving the summons, and detained in custody for a period not exceeding 14 days as the court may deem fit.

See also section 79 ACJL, Lagos and section 113 of ACJA.

Content of Summons:

• Name of the defendant.

• State in writing and in duplicate the substance of complaint.

• An order to the defendant to appear before the magistrate at a certain time and place after 48 hours of the service of the summons.

• The date of issue.

• The signature of the Magistrate or Justice of Peace. See section 85 of ACJL Lagos, sections 117 and 120 of ACJA, section 131 ACJL Kano.

It is important to know that where the law provides that processes issuing from a court shall be signed by the presiding officer of the court, it would be sufficient compliance with the law if the presiding officer affixes his signature by means of a rubber stamp.

In the case above, English Appeal Court held that where a statute requires a person to sign a document, the provision of the statute is sufficiently complied with if the person affixes his signature on the document by means of a rubber stamp. Such a signature is deemed valid in law.

In the above case, the Chairman of a Judicial Commission of Inquiry, a High Court Judge, received a letter containing serious allegations against the appellant. On the strength of the letter, he issued a warrant of arrest against the appellant. The appellant filed an application to have the warrant set aside. The order was granted. The respondent appealed to the Appeal Court for leave to appeal out of time against the ruling of the High Court. His application was granted. On appeal by the appellant against the ruling of the Appeal Court, the Supreme Court held, inter alia, that the warrant of arrest was improperly issued because:

• The warrant was issued by the respondent in his capacity as Chairman of the Judicial Commission of Inquiry and not in his capacity as a High Court judge.

• The warrant was issued by him without receiving a complaint on oath against the appellant as required by section 23 of the Criminal Procedure Act.

Thus, the appeal was allowed.

However, in the above case, the decision of the court made it again clear, and reminds us that for every legal document filed by a legal practitioner on behalf of a client, the signing must by him in his personal capacity as a Legal Practitioner and not in the name of his firm.

Meaning & How it is Issued:

A warrant of arrest is an authority in writing by a court to a police officer or any other person to arrest an offender. See section 35 and section 135 (2) of ACJA, section 55 ACJL Kano.

It is applied for where the allegation against the offender is a serious one and or where a summons is disobeyed. Also a law creating an offence may provide that an offender cannot be arrested without a warrant or that he cannot be so arrested unless found committing the offence e.g. sections 422 and 419 of the Criminal Code. But even for

such offences, an arrest without warrant will not vitiate the proceedings arising therefrom. This the court held in the above case.

Issuance of Warrant of Arrest:

A warrant of arrest is issued on a complaint. It may be issued by a

magistrate or a judge of the High Court on a complaint. The complaint must be on oath that a person has committed an offence. See section 23 ACJL Lagos, section 37 of ACJA, sections 56, 101 ACJL Kano.

In the above case, the chairman of a Judicial Commission of Inquiry, a High Court Judge, received a letter containing serious allegations against the appellant. On the strength of the letter, he issued a warrant of arrest against the appellant. The appellant filed an application to have the warrant set aside. The order was granted. The respondent appealed to the Appeal Court for leave to appeal out of time against the ruling of the High Court. His application was granted. On appeal by the appellant against the ruling of the Appeal Court, the Supreme Court held, inter alia, that the warrant of arrest was improperly issued because:

• The warrant was issued by the respondent in his capacity as Chairman of the Judicial Commission of Inquiry and not in his capacity as a High Court judge.

• The warrant was issued by him without receiving a complaint on oath against the appellant as required by section 23 of the Criminal Procedure Act. Thus, the appeal was allowed.

A warrant of arrest must be in writing and shall contain:

• The date of issue.

• A statement of the offence or matter for which it is issued.

• The name of the person to be arrested.

• An order to a police officer or officers to apprehended the person to be arrested and bring him before the court.

• Signature of the judge or magistrate issuing it.

See section 55 (1), (c) ACJL Kano, section 22 ACJL Lagos and section 36 (1) of ACJA. See section 22 ACJL Lagos and sections 36 (2), 39 (1) and 40 (1) of ACJA, section 58 ACJL Kano.

A warrant may be executed anywhere within a state. It may be issued on any date including a Sunday or public holiday. See section 24 ACJL of Lagos and section 38 of ACJA, section 57 ACJL Kano.

Execution of Warrant of Arrest:

Warrant of arrest may be executed on any day including a Sunday or a public holiday, at any time and in any part of the State other than

within the actual courtroom in which a court is sitting. See section 27 (1), (2) ACJL Lagos and section 43 (1), (2) of ACJA, section 61 (2) ACJL Kano. It may also not be executed in Parliament or a Legislative House without the permission of the President. See Ss. 15 and 30 Legislative Houses (Powers and Privileges) Act 1958 and also the above case.

Warrant must be shown to the person being arrested before execution unless there are good reasons to the contrary. ACJL Kano provides that the police officer executing a warrant of arrest shall inform the suspect of the existence of the warrant before carrying out the arrest if there is apprehension of escape, resistance or rescue. See section 27(2) ACJL Lagos, section 61 (3) ACJL Kano. If not immediately available, its existence must be disclosed and must be shown to the arrested person as soon as possible, and in Lagos State within 24 hours. Section 28 ACJL Lagos, sections 43 (3) and 44 of ACJA, section 62 ACJL Kano.

Execution Outside of the State of Issue:

The procedure is the same in both the North and South except Lagos

State and it is governed by sections 365 and 367 ACJL Lagos, section 64 ACJL Kano.

Note that:

a. The warrant will be taken to the appropriate magistrate in the state where the defendant resides, who will satisfy himself that the warrant is issued by the magistrate or judge whose name appears on the process.

b. The magistrate then endorses the warrant authorizing that it is to be executed in that state.

It is noteworthy that the endorsement is sufficient authority to the police officer to execute the warrant and bring the person named on it before the magistrate that endorsed it.

• The magistrate of the state, before whom the person is brought shall:

(i) By warrant under his hand, order the person arrested to be returned to the state that issued the warrant and for this purpose, be delivered to the officer who brought the warrant or.

(ii) Where the offence for which the person is arrested is bailable, admit such person to bail upon conditions as it deems fit. See section 365 (3) (a), (b) ACJL of Lagos

In execution of warrant of arrest, the Magistrate in the state of

execution may receive evidence before making an order for removal. This is because the person arrested and ordered to be removed to the state which issued the warrant, if dissatisfied with the order has a right to apply to the Judge of the High Court of that State, for the review of the order. Such review shall be by way of rehearing, and evidence in addition to or in substitution for the evidence given on the making of the order may be given. This presupposes that evidence, if sought to be given in the first instance must be taken as in the above case.

The judge of the High Court may make the following orders upon a review:

(i) Order the release on bail of the apprehended person on such terms as he deems fit or,

(ii) Direct that such person be kept in such custody as the judge deems fit. See section 64 (2) ACJL Kano.

Suit No. 42/1968 (See J.I.C. Taylor, Through the Cases (Lagos High Court Publication, 1974) P. 110

The magistrate to whom a warrant is taken to endorse must satisfy himself that there are sufficient grounds for the issuance of the warrant by the issuing state. Thus, if its issuance results in abuse of legal process, he has to refuse his endorsement on the

warrant.

In the instant case, a warrant of arrest was issued by a Chief Alkali Court to apprehend the applicant for failure to pay a judgment debt. The person to be apprehended under the warrant of arrest was in Lagos State and the warrant of arrest was endorsed by the Magistrates' Court there. According to the endorsement by the magistrate, the person to be apprehended under the warrant was to be taken before the Alkali Court in the then Benue/Plateau State where the warrant was issued. The Lagos Magistrates' Court ordered that the arrestee be taken back to that State. The arrestee brought an application to set aside the order authorizing his return to the state where the warrant of arrest was issued. The High Court ruled, inter alia, that the Chief Alkali Court was incompetent to issue a warrant of arrest, and that being the case, the Magistrates' Court in Lagos should not have endorsed it because it was not issued by a court, judge or magistrate as contemplated by the law.

The decision of the House of Lords in this case also teaches, inter-alia, that a magistrate endorsing a warrant of arrest was only performing a ministerial act. He was not acting judicially in the sense of ascertaining whether there was a prima facie case for the issue of the warrant of arrest. What is required of the endorsing magistrate is to be satisfied that the warrant of arrest was issued by a competent person or authority.

It is important to know that 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, the magistrate should not make any endorsement as seen in the above case

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 as seen in the above case.

Life of a Warrant of Arrest

In this case, a warrant of arrest was issued for the arrest of the accused person. It was executed on him and he was duly arrested. Subsequently, he was discharged. He was again re-arrested on the same warrant of arrest. The court held that the subsequent execution of the warrant of arrest which had been earlier executed and had thus outlasted its duration and so was irregular.

Who can arrest without warrant?

The court observed in the instant case that:

The test as to what is reasonable belief that a suspect has committed an offence is objective. It is not what the policeman himself considered reasonable but whether the facts within the knowledge of the policeman at the time of the arrest disclosed circumstances from which it could be reasonably inferred that the appellant had committed an offence.

(i) Judicial Officers -- The Magistrate, Judge, Justice of the Peace

A Magistrate, Judge, Justice of the Peace may within their magisterial district or judicial division, arrest or direct the arrest of any person who commits an offence in their presence without a warrant of arrest, provided they could have lawfully ordered the arrest of the person if the facts on which they relied upon in effecting the arrest had been stated before them on oath by some other person. A judicial officer exercising his powers of arrest without warrant my deal with the arrested person as if he had been brought before him by some other persons. See also section 15 ACJL Lagos, sections 25 and 26 ACJA, section 45 ACJL Kano.

(ii) Private Persons

A private person has power to arrest without warrant in the following situations:

• If a person in his view commits an indictable offence

• If he reasonably suspects a person to have committed a felony

• If he reasonably suspects a person to have committed a misdemeanor by night. See section 12 ACJL Lagos and section 20 ACJA, section 43 ACJL Kano, section 39 of the Police Act 2020.

So, a person reasonably suspected to have committed an offence may be arrested without a warrant of arrest. Person(s) empowered under the law to make an arrest without a warrant of arrest are:

• Police officers

• Judicial officers

• Private persons

(iii) Police Officers

See section 38 of the Police Act 2020, sections 10, 11 and 54 of ACJL Lagos and section 18 ACJA, section 41 ACJL Kano.

It is important to know that 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. A police officer, after arresting a suspect, does not have to take the suspect directly to the police station. He can do what is reasonable to investigate the offence alleged against the suspect. He can take the suspect to his house to search in order to obtain necessary evidence. He can take the suspect to any other place to verify any explanations made by the suspect. However, the actions of the police officer must be reasonable, otherwise, he may be liable for false imprisonment.

In this case, the plaintiff and O were dragging a motorcycle in a high crime area at night. The defendant, a police officer, demanded the particulars of the motorcycle and the ignition key from them. When they could not produce the items, the police officer arrested, took them to the police station and detained them. They were subsequently released.

The plaintiff brought an action against the defendant (Police officer) for unlawful arrest and false imprisonment. The High Court held that the defendant had reasonable grounds in suspecting that the plaintiff and O stole the motorcycle since they were unable to produce the particulars of the vehicle and they could not explain the whereabouts of the motorcycle's ignition key. Therefore, the court held that the arrest was lawful.

In this case, the respondent was arrested without a warrant of arrest by the appellant, a police officer. The respondent was arrested for driving while under the influence of alcohol, the arrest being affected by force because the respondent did not submit himself voluntarily to the police. In consequence, he sustained bodily injuries. After the respondent was examined by a doctor, it was revealed that the respondent was not under the influence of alcohol at the time he was arrested and he was released.

The respondent brought an action against the police officer claiming damages for assault and unlawful arrest. In the lower court, damages were awarded to the respondent. On appeal against the decision of the lower court, the English Court of Appeal allowed the appeal. The appellate court held that the trial judge misdirected the jury in ruling that if the respondent did not actually commit the offence, the arrest was unlawful. The appellate court held that if it appeared to the policeman that the respondent was driving under the influence of alcohol, even though subsequent investigation revealed that at the time he was arrested, this was not actually the case, the arrest remains lawful.

The English Court of Appeal held in the instant case that the respondent police officer was not liable for damages for false

imprisonment for taking the appellant first to his house to search for stolen money and then to a friend's house to verify an alibi before taking him to the police station. The court held that the police officer acted reasonably in conducting an investigation into the alleged offence before taking the suspect to the police station.

The House of Lords noted to determine whether it was reasonable for a constable to have arrested a person without warrant based upon a suspicion that an offence has been committed, the power of the police to arrest being an executive discretion must be exercised in good faith to the exclusion of considerations of matters which are irrelevant to what he has to consider. This is the Wednesbury principles fashioned after the classical case of Associated Provincial Picture House Ltd. v. Wednesbury Corporation (1948)1 K.B. 224. See also **Lord Ziplock in Holgate Mohammed v. The Duke 79 Cr. App. Rep. 120 which buttressed this principle.

A police officer can also arrest any person whom he reasonably suspects of having committed an indictable offence, provided that the statute creating the offence does not prevent arrest without a warrant of arrest. It is of noteworthy that the test to be adopted in determining whether the police officer acted within his power is objective. In other words, from the facts of the case, could it be reasonably inferred that the commission of an indictable offence is disclosed.

In the instant case, the Supreme Court held that a private person may arrest a person whom he reasonably suspects of having committed a felony. A property owner or his servant or agent can arrest without a warrant of arrest any person found committing an offence involving injury to his property.

How to Deal with the Person So Arrested

It is important to know that a private person arresting an offender without a warrant of arrest must, without unnecessary delay, deliver the arrested person to police officer, or in the absence of a police officer must take such person to the nearest police station. Such a person must be given reasonable facilities to obtain legal advice, taking steps to furnish his bail. See section 14 ACJL Lagos State and section 14 ACJA, section 37 ACJL Kano. The police officer must thereupon, re-arrest the offender if the police officer could have arrested him in exercise of his power of arrest. See 44 (2) ACJL Kano.

In the above case, the appellant was held liable for the false imprisonment of the respondent. The respondent and her daughter were arrested by the private detectives of the appellant company for stealing from the store. They were taken before the chief store detective and the managing director of the company. They were detained for some time. The evidence of the respondent's daughter was that they were detained for an hour. However, there was other evidence that they were detained for less than the hour. They were subsequently handed over to the police. The House of Lords, allowing the appeal, held that where a person in the exercise of his common law right arrested a

person without a warrant, he should take the person arrested before a justice of the peace or a police officer, not necessarily right away, but as soon as it was reasonably possible. The House of Lords further stated that the taking of the respondent to the appellants' office to obtain authority to prosecute from the managing director was not an unreasonable delay before handing them over the police. Thus, the appellants were not liable for false imprisonment.

It is pertinent to know that the test of reasonableness is determined by the circumstances of each case. Failure to take the arrested person to a police station within a reasonable time renders the person affecting the arrest liable in damages for false imprisonment.

Of noteworthy also is that if a Judge arrests or directs the arrest of a person, he shall commit the offender to custody or grant him bail, if the offence is bailable. See section 45 (1) ACJL Kano.

In making an arrest, the police officer or any other person making

same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or by conduct. See sections 1, 3 of ACJL of Lagos and section 4 of ACJA, section 27 ACJL Kano.

Of noteworthy is the fact the person arrested shall not be handcuffed, or otherwise bound or be subjected to unnecessary restraint except by order of the court.

Exception: When there is a reasonable apprehension of violence, or of an attempt to escape or the restraint is necessary for the safety of the person arrested, then such can be restrained. Section 2 ACJL Lagos and section 5 ACJA, sec tion 28 ACJL Kano. Also important to know that 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 com- mitting a crime or escaping from lawful custody- section 3 ACJL Lagos and section 6 (1) ACJA, section 29 ACJL Kano.

In the above case, The English House of Lords stated the meaning of

the word, "arrest" as follows:

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

In the instant case, the English House of Lords stated on what would amount to a lawful arrest as:

"The mere act of taking a person into custody does not constitute an arrest unless that person knows, either at the time when he is first taken into custody or as soon thereafter as it is reasonably practicable to inform, upon what charge, or on suspicion of what crime he is being arrested"

Effect of Irregularity in Arrest process:

In the above case, the accused person was arrested and arraigned without a warrant of arrest for the offence of conspiracy to bring

false accusation and stealing. He was convicted of both offences. He appealed against conviction on the premise that his trial and conviction were a nullity because the provisions of the section creating the offence of conspiracy to bring false accusation which requires an offender to be arrested with a warrant of arrest were not duly complied with.

The appellate court, while relying on the provisions of section 101 of the Criminal Procedure Act and dismissing the appeal, held that the defect in the arrest only rendered the arrest unlawful; it did not affect the validity and/or authenticity of the trial.

Suit No. 42/1968 (See J.I.C. Taylor, Through the Cases (Lagos High Court Publication, 1974) P. 110

In the instant case, a warrant of arrest was issued by a Chief Alkali Court to apprehend the applicant for failure to pay a judgment debt. The person to be apprehended under the warrant of arrest was in Lagos

State and the warrant of arrest was endorsed by the Magistrates' Court there. According to the endorsement by the magistrate, the person to be apprehended under the warrant was to be taken before the Alkali Court in the then Benue/Plateau State where the warrant was issued. The Lagos Magistrates' Court ordered that the arrestee be taken back to that State. The arrestee brought an application to set aside the order authorizing his return to the state where the warrant of arrest was issued. The High Court ruled that the Chief Alkali Court was incompetent to issue a warrant of arrest, and that being the case, the Magistrates' Court in Lagos should not have endorsed it because it was not issued by a court, judge or magistrate as contemplated by the law.

Still in the above case, the endorsing magistrate ordered that the arrestee should be taken directly to the State where the warrant of arrest was issued after the warrant of arrest was executed on the arrestee. The High Court held that the endorsing magistrate erred in law in making such an order. The appellate court further held that the proper procedure was for the arrestee to be brought before the endorsing magistrate after his arrest.

There is yet another important point made by the appellate court in this instant case, the appellate court ruled that the endorsed warrant of arrest was issued for a civil wrong, and that the warrant did not disclose an offence known to law

In the instant case, a warrant of arrest was issued in Kaduna State for the arrest of the applicant in Lagos. The warrant of arrest was endorsed in Lagos and the arrestee was brought before the endorsing magistrate. Counsel for the arrestee applied for evidence to be taken before the arrestee was ordered to be taken to Kaduna. The magistrate rejected the application and ordered that the arrestee be taken to Kaduna. The arrestee applied for a review of the order of the magistrate to the High Court. The High Court held that the magistrate erred in law in failing to take evidence on the application of the arrestee. The appellate court held that where an application is made to a magistrate for him to take evidence before his order, he is duty bound to entertain such application. The appellate court further held that no offence known to law was disclosed on the warrant of arrest, and the dealing between the arrestee and the complainant was a contractual transaction for which the complainant ought to seek a civil remedy. Thus, the arrestee was ordered to be discharged.

Liability for Securing Search Warrant Wrongfully:

SEE J.I.C. TAYLOR, THROUGH THE CASES ()

In the above case, the defendant laid a complaint before the police that she suspected the plaintiff and her friends of breaking into her house. As a result of her complaint, a search warrant was issued and the houses of the plaintiff and those of some friends were searched, but nothing incriminating was found. The plaintiff brought an action in damages against the defendant for maliciously and without reasonable cause procuring a search warrant. The trial court held that the defendant was not liable in damages because the issue of a search warrant is a judicial act interposed between the complaint made by the defendant and the issuance of the search warrant made by the magistrate. Thus, the action was dismissed.

On appeal against the decision of the lower court, the appellate High Court held that as nothing incriminating was found at the appellant's premises, and as there was no reasonable cause for the respondent's suspicion of the appellant burgling her house, the appellant was entitled to damages.

Time of issue and execution of a search warrant.

A search warrant may be issued and executed on any day including a Sunday and public holiday. Sections 108 (1) ACJL Lagos, 148 ACJA, section 158 ACJL, Kano.

In the instant case, The Apex Court held that even if the procedure laid down in section 78(1) of the Criminal Procedure Code in executing a search warrant was not followed, an irregularity may or may not have occurred, depending on the facts or circumstances, but in any case, the consequence of an irregularity will attach to the persons executing the warrant and not to the evidence which is thereby obtained. The court further held that the evidence which was obtained as a result of the search was properly admitted by the trial court, because they were relevant to the fact in issue. Thus, the appeal was dismissed.

In the above case, the appellants were convicted of conspiracy to pervert the course of justice. The evidence admitted at the trial was evidence illegally obtained by tapping the telephone of the appellants. On appeal against conviction, it was contended that the tape recordings of the telephone conversation of the appellants ought not to have been admitted by the trial court. The English Court of Appeal rejected counsel's contention and held that although the evidence was illegally obtained, nonetheless, it was admissible in evidence as it was relevant to the fact in issue. Consequently, the appellants' appeal was dismissed.

Seizing Goods Not Specified in The Search Warrant

The general rule is that only items mentioned in the search warrant should be seized. However, where the person executing the search warrant comes across items which he reasonably believes to have been stolen or are relevant in respect of other offences, he can lawfully seize such items as was held in the instant case.

Note that the power to search includes the power to arrest the occupant of the premises. Sections 154 (2) (b) 155 ACJL, Kano. Also to take note of is the fact that a police officer who enters a man's house for the purpose of lawfully arresting him may remove any document or material which he finds in his house and which he reasonably believes to be material evidence in relation to the crime for which he is arrested or which shows him to be implicated in some other crime provided he acts reasonably and detains them not longer than is necessary.

A police officer or any other law enforcement agent who obtained evidence illegally may be liable to the aggrieved person for damages in a civil action. In other words, the illegality attaches to the officer executing the search and not the illegally obtained evidence

In the English case above, the respondents served a warrant of arrest on H. In the premises where H was arrested, certain documents were removed. One set of documents was used as evidence against the appellants at their trial. The other set of documents was unconnected with the criminal case and was returned to the appellants. The appellants brought an action against the respondents, inter alia, for trespass to property. The court held that in respect of the set of documents irrelevant to the criminal trial, the respondents were liable to the criminal trial, the respondents were liable to the appellants in respect to property. However, they were held not liable to trespass to the premises. Damages were awarded to the appellant

Admissibility of Evidence Illegally Obtained During Search:

It is important to know that the non-compliance with any of the provisions of the law relating to the issuance and execution of a

search warrant will render such search unlawful. Where documents or any other materials are seized from the premises of another in circumstances that render such removal unlawful, such documents may notwithstanding, be admitted in evidence at the trial, where they are relevant. Reason being that the basis of admissibility of any evidence is its relevancy as in the instant case.

Section 14 of the Evidence Act, however, gives the court the discretion to exclude improperly obtained evidence. Section 15 Evidence Act provides for matters the court should take into consideration in its exercise of discretion under Section 14 thereof.

Concerning Confessional Statement illegally obtained the court also emphasized the exception to the general rule on admissibility of illegally obtained evidence thus:

It is right however, that it should be stated that the rule with regard to the admission of confessions whether it be regarded as an exception to the general rule or not, is a rule of law which their Lordships are not qualifying in any degree whatsoever. The rule is that a confession can only be admitted if it is voluntary and therefore one obtained by threats or promises held out by a person in authority is not to be admitted.

Procuring a Search Warrant Without Reasonable Cause:*

Civil liability attaches to procurement of a search warrant without reasonable cause. A person who lays a complaint before a police officer on the basis of which a search warrant is obtained may or may not be liable in damages for false imprisonment, if the person whose

premises is searched is arrested and detained by the police. The complainant's liability would depend on whether there was an interposition of a judicial or quasi-judicial act between his complaint and the issuance of the search warrant.

In the above case, the defendant made a report to the police that the plaintiff was in possession of her stolen gold chain. In consequence of this, the police obtained a search warrant, searched the premises of the plaintiff, and found a gold chain. The plaintiff was arrested and detained at the police station. After investigation, the police returned the chain to the plaintiff and preferred no charge. The plaintiff brought an action against the defendant for damages for false imprisonment. The action was dismissed.

On appeal, the appellate court held that the search warrant was grounded on information sworn to by the police officer and not the respondent. Therefore, the complaint of the respondent was interposed by the information sworn to by the police officer as a result of which the search warrant was issued. Thus, the issue of the search warrant and the arrest and detention attendant thereon, were judicial acts. The respondent could not be held liable in damages for them.

A complainant who set the law in motion against a person alleged to have committed an offence may render himself liable in damages to the alleged offender for malicious prosecution where the facts so support.

The Supreme Court while dismissing the appellant's appeal in this case and affirming the decision of the two lower courts, held that the appellant failed to prove two key ingredients - the absence of reasonable and probable cause and the presence of malice.

The three above listed judicial authorities also buttressed and support what has been said in the previous other cases about the attitude of the court on actions for damages for wrongfully procuring Search Warrants, and the case of malicious prosecution.

The three above listed judicial authorities also buttressed and support what has been said in the previous other cases about the attitude of the court on actions for damages for wrongfully procuring Search Warrants, and the case of malicious prosecution.

judicial authorities also buttressed and support what has been said in the previous other cases about the attitude of the court on actions for damages for wrongfully procuring Search Warrants, and the case of malicious prosecution.

Confessional Statement:

In the course of pre-trial investigation, the Police do encounter several evidential issues which determine to a large extent, the success or failure of the investigation and by extension, the criminal trial itself.

The Procedure in the South under ACJL -- Lagos. is that where a suspect volunteers to make a confessional statement, the making and taking of such statement shall be recorded on video and the said recording and copies of it may be produced at the trial. In the absence of such video facility, the said statement shall be in writing and in the presence of a Legal Practitioner of the choice of the suspect. Section 9(3) ACJL Lagos.

In the cases above, the court held that the failure to comply with the provisions of this section renders the confessional statement invalid.

In the course of pre-trial investigation, the Police do encounter several evidential issues which determine to a large extent, the success or failure of the investigation and by extension, the criminal trial itself.

The Procedure in the South under ACJL -- Lagos. is that where a suspect volunteers to make a confessional statement, the making and taking of such statement shall be recorded on video and the said recording and copies of it may be produced at the trial. In the absence of such video facility, the said statement shall be in writing and in the presence of a Legal Practitioner of the choice of the suspect. Section 9(3) ACJL Lagos.

In the cases above, the court held that the failure to comply with the provisions of this section renders the confessional statement invalid.

However, the Court of Appeal Lagos Division in this case, held that failure to observe the provision of this section does not invalidate a confessional statement unless it is evident that the confession was not made voluntarily.

In the above case, the Appeal Court, Lagos Division, held that the ACJL Lagos State, being a Law of the Lagos State House of Assembly cannot regulate admissibility of confessional statement; that it is sufficient to administer words of caution to the understanding of the defendant and to endorse same before he decides to make the statement.

It is important to note that the other States in the South have no equivalent provisions under the repealed CPL. In this circumstance, the Judges' Rules apply.

Procedure for the application of Judges' Rule:

In recording the confessional statement of an accused person under the Judges' Rule,

• The suspect should be informed that the confession should be written, whether he can write or someone else should write for him. If he decides to write his own statement, he should be allowed to do so without any prompting except that he may be told of matters that are material.

• The suspect will sign a statement to the effect that he made the statement of his own free will. If he agrees that the officer should write, this will be recorded and the suspect will sign.

• The statement should be recorded in the exact words used by the suspect without the officer prompting him. The officer should not ask any questions except questions that will make the statement coherent, intelligible and relevant. After recording, same shall be read by the maker and if need be, he will make corrections, additions or alterations and thereafter, sign.

• Where he refuses to read or sign, a superior Police officer present shall record what transpired on the statement. This will be done in the presence of the suspect.

• Where the suspect is an illiterate, the Police officer will read the statement over to him and ask him if he has any corrections, additions or alterations to make. He shall then sign and the Police officer will also certify what he has done on the Statement. Note that the Rules are mere rules of administrative practice which have no force of law.

In this particular instant case, with respect to the Judge's Rules, the court held that:

"Statement obtained from a prisoner contrary to the Judges Rules are not ipso facto inadmissible, such statement may be admitted if the Judge, exercising his discretion judicially, is satisfied that they were made voluntarily."

This means that if the statement is made voluntarily, it will be admitted in evidence even where the Judges' Rules were not complied with this position is supported by Section 31 of the Evidence Act. The Nigerian Police have devised a practice whereby a suspect who made a voluntary confessional statement will be taken to a superior Police officer who reads it over and interprets it to the suspect and he confirms it as his voluntary statement.

The Supreme Court in this case, has commended the practice devised by the police whereby a suspect's confessional statement would be taken

to a superior police officer for confirmation of the statement being duly made by the suspect even though it is not a requirement of law, but a wise step that gives extra assurance of fairness to the defendant person and the voluntariness of his confession.

The Supreme Court in this case, held that:

"It is not the requirement of any law that if a confessional statement has not been read over and confirmed before a superior Police officer, it will ipso facto cease to be effective or be rendered inadmissible."

By virtue of the provision of section 28 of the Evidence Act 2011, a confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. In other words, it is a voluntary admission by a person of his participation in a crime. A confessional statement may be judicial (formal) that is, when defendant pleads guilty to a charge. It may also be extra-judicial (informal). These are confessions usually made in the course of investigation.

It is worthy of note that confessional statement may be oral or written, as long as it satisfies the requirement of voluntariness and the content of the confession covers the ingredients of the particular crime in issue.

In the above case, the Supreme Court held that the oral confession made by the accused person was admissible. This is because the suspect confessed to a Police officer how he killed his father, his confession was found to be voluntarily made, and it admitted the ingredients of the offence of murder.

It is important to know that for a statement to be construed against a defendant as confessional, it must contain admission of both the actus reus and mens rea (where mens rea is required).

In the instant case, the defendant admitted attending military training but said he did not know what the training was about.

The court held that the statement was not a confession because the mens rea was missing.

For a confessional statement of an accused person to be admissible, it must be voluntarily made by the defendant. Admissibility of confessional statement depends on how it was obtained and not whether it is true or not. The law places the burden of proving voluntariness of a confessional statement said to be made by a defendant on the prosecution and the standard required is proof beyond reasonable doubt.

Worthy of note is the fact that once the confessional statement of an accused person is voluntarily made in a free atmosphere and it is direct, unequivocal, cogent, compelling, positive and properly proved, it can sustain a conviction without any corroborative evidence as the court held in the above cases

For a confessional statement of an accused person to be admissible, it must be voluntarily made by the defendant. Admissibility of confessional statement depends on how it was obtained and not whether it is true or not. The law places the burden of proving voluntariness of a confessional statement said to be made by a defendant on the prosecution and the standard required is proof beyond reasonable doubt.

Worthy of note is the fact that once the confessional statement of an accused person is voluntarily made in a free atmosphere and it is direct, unequivocal, cogent, compelling, positive and properly proved, it can sustain a conviction without any corroborative evidence as the court held in the above cases

The Court in the instant case held that a confessional statement is admissible against the maker but not against another defendant. See also Section 29(1) Evidence Act.

Confessional statement of a defendant is not an evidence against a co-defendant who has not adopted the statement by words or conduct as was held by the court in the instant case. See also section 29(4) of the Evidence Act.

The factors that can render a confessional statement inadmissible are provided for in Section 29(2) of the Evidence Act 2011, include:

(i) Oppression of the person who made the statement. Section 29(5)defines 'Oppression' to include: torture, inhuman or degrading treatment, and the use or threat of violence whether or not amounting to torture.

(ii) In consequence of anything said or done which was likely, in the circumstance existing at the time to render unreliable any confession which might be made by him in such consequence......

A Confessional statement obtained as a result of:

• Torture, inhuman or degrading treatment; or

• Threat of violence whether or not amounting to torture, will be inadmissible.

If the making of the confession is proved to have been prompted by any of the above-mentioned factors, then the alleged confessional statement will become objectionable and therefore inadmissible.

Retracted Statement:

In these cases the courts held that when the prosecution seeks to

tender a confessional statement and its admissibility is challenged on the ground of involuntariness, a trial-within-trial should be conducted to test whether or not the confession was voluntary.

Since the burden to prove that the statement was made voluntarily is on the prosecution, the prosecution will be called upon to open the trial-within-trial. Section 29(3) Evidence Act.

Retracted Statement:

In these cases the courts held that when the prosecution seeks to

tender a confessional statement and its admissibility is challenged on the ground of involuntariness, a trial-within-trial should be conducted to test whether or not the confession was voluntary.

Since the burden to prove that the statement was made voluntarily is on the prosecution, the prosecution will be called upon to open the trial-within-trial. Section 29(3) Evidence Act.

Retraction of a confessional statement of an accused person is where the defendant makes the statement and denies it thereafter. It is important to know that in a situation where the statement is denied, the statement would still be admissible if it is relevant. The court has a duty to determine at the conclusion of the case whether or not the defendant made the statement and the weight to be attached to it as it held in the cases above.

The retraction of a confessional statement does not affect its admissibility. It arises in the following circumstance, to wit:

• Where the defendant denies signing the statement; or the statement was not signed at all; or

• He denies making an oral confession; or that the statement was not properly recorded;

• Where his written statement was altered or where an involuntary statement was not challenged when it was tendered.

Retraction of a confessional statement of an accused person is where the defendant makes the statement and denies it thereafter. It is important to know that in a situation where the statement is denied, the statement would still be admissible if it is relevant. The court has a duty to determine at the conclusion of the case whether or not the defendant made the statement and the weight to be attached to it as it held in the cases above.

The retraction of a confessional statement does not affect its admissibility. It arises in the following circumstance, to wit:

• Where the defendant denies signing the statement; or the statement was not signed at all; or

• He denies making an oral confession; or that the statement was not properly recorded;

• Where his written statement was altered or where an involuntary statement was not challenged when it was tendered.

Alibi is an issue which arises during pre-trial investigation. It is a defence put up by a defendant stating that, as at the time the alleged offence was committed, he was somewhere else and could not have possibly committed the alleged offence. The defence of alibi must be promptly raised, that is to say, it must be raised during investigation when a defendant is confronted with the commission of the alleged offence to enable the Police have the opportunity to investigate the defence so raised.

In this case, the court held that the defence of alibi which a defendant is relying upon must be duly and properly raised by

furnishing to the police the particulars of his whereabouts as at the time the alleged offence was committed for proper and thorough investigation. That is to say, he has to furnish the particulars of where he was, time, the persons he was with who could testify that he was there at the time the alleged crime was committed.

It is pertinent to know that where the defendant fails to furnish the required particulars above, the defence is not properly raised. However, where the defence is duly and properly raised, the burden is on the prosecution to either accept or disprove it credible counter evidence as the court held in the case above.

The Police is duty bound to investigate the defence of alibi so raised by the defendant. This is to enable it ascertain the truthfulness or otherwise of the defence. The defendant only has what is referred to as evidential burden which means the duty of raising the defence of alibi as the court held in the case above.

The prosecution has a duty either to accept or disprove the defence of alibi by the defendant once the defendant has discharged this evidential burden. It is the duty of the court to test the defence of alibi against the evidence adduced by the prosecution and if there is any doubt in the mind of the trial Judge, it should be resolved in favour of the defendant.

The court in the instant case, held that where a defendant discloses an alibi before his trial and the prosecution fails to take any step to verify or disprove it, it may hold that the prosecution has failed to prove its case beyond reasonable doubt. This is because the failure by the Police to investigate an alibi duly, properly and timeously put up by a defendant would raise doubt in the mind of the court and must in appropriate case amount to the quashing of a conviction imposed in disregard of this requirement

Where a defendant raises the defence in his evidence at the trial, the prosecution would not have the opportunity to investigate and would therefore be entitled to rely on the evidence of its witnesses to disprove the alibi. Where the prosecution adduces sufficient, accepted and credible evidence to fix the defendant at the scene of the crime at the material time, the defence would logically be demolished and/or destroyed as was held by the court in the instant case.

Identification means a whole series of facts and circumstances for which a witness associates a defendant with the commission of the offence charged.

Identification may consist of or include evidence in the form of finger prints; handwriting; voice; photographs; identification parade or the recollection of the features of the culprit by a witness who saw him in the act of commission of a crime or a combination of two or more of these. This is the decision of the court in the instant case.

It is important to know that the question whether a defendant is properly identified or not is a question of fact to be considered by the trial Judge.

The court in this case, held that whenever the case against a defendant depends wholly or substantially on the correctness of the identity of the defendant which the defence alleges to be mistaken, the court examines and receives such evidence with caution before convicting the defendant on the correctness of the identification.

Identification parade is only necessary where the victim did not know the defendant and was confronted by the offender for a very short time and in which time and circumstances he might not have had full opportunity of observing the features of the defendant. In such a situation, a proper identification will be taken into consideration.

The court in the case above, stated the ways by which a proper identification parade would take place. They are:

(i) The description of the defendant given to the Police shortly after the commission of the offence;

(ii) The opportunity the victim had in observing the defendant;

(iii) Features of the defendant noted by the victim and communicated to the Police that marks him out from other persons.

Worthy of note is the fact that identification parade is not required in every situation of investigation of crime, nor is it a sine qua non to a conviction for an alleged crime. It is only essential in the circumstances where there exists a doubt as to who was seen in connection with the offence allegedly committed because though the victim or a witness saw the suspect, it turns out that he is not someone well-known to him (the victim or witness) before the incident. to require an identification parade

Also, it is important to state that identification parade is not necessary if the defendant confessed; or was caught at the scene or was pursued and apprehended; or was well known to the witness before the incident; or there was clear and un-contradicting eye witness account.

Courts of General Criminal Jurisdiction -- High Courts:

The court held in the cases above that the High Courts, (States, Federal, and FCT) have jurisdiction to try criminal causes or matters by virtue of the provision of:

• Section 272 (1) of the 1999 Constitution of the Federal Republic of Nigeria.

• Section II (1) (b) of the High Court Law Cap H3 Laws of Lagos State 2004.

• To try all indictable offences contained in an information.

• To try any non-indictable offence brought by complaint.

State High Courts:

In the instant case, the plaintiff opened an irrevocable letter of credit in favour of an American company for the purchase of several tons of rice by the second defendant. It was stipulated in the bill of lading that the goods were not to be released until the bill of lading was endorsed by the plaintiff. The first defendant, without obtaining the necessary endorsement, released the goods to the second defendant. The second defendant sold the goods and failed to pay the proceeds from the sale to the plaintiff. The plaintiff instituted an action in the Lagos State High Court claiming approximately N1,300,000.00 being the value of the letter of credit. Judgment was delivered in favour of the plaintiff at the trial court.

The defendant appealed to the Appeal Court contending, inter alia, that the State High Court had no jurisdiction to try the case being an admiralty matter.

It contended that the case could only have been tried by the Federal High Court. The Appeal Court accepted counsel's contention that by virtue of section 236(1) of the Constitution of the Federal Republic of Nigeria 1979, the jurisdiction of the State High Court is unlimited. The limitation on the jurisdiction of the State High Court contained in section 8 of the Federal High Court 1973 is in conflict with section 236(1), and to the extent of the inconsistency, is null and void and of no effect. Therefore, it submitted that the Appeal Court erred in law in upholding that the Lagos State High Court had no jurisdiction to try the case. The Supreme Court accepted counsel's contention and held that any limitation on the unlimited jurisdiction of the State High Court is unconstitutional, and therefore, null and void.

The Apex Court concluded that the Lagos State High Court has jurisdiction to entertain the matter and allowed the appeal.

In the instant case, the appellants were charged, inter alia, with the offence of sedition in the Federal High Court by the Director of Public Prosecutions of the Federation. A preliminary objection was raised on behalf of the appellants that the Federal High Court does not have jurisdiction to try the offence. The preliminary objection was overruled. The appellants appealed against the ruling of the Court. The Court of Appeal dismissed their appeal. Further, the appellants appealed to the Supreme Court. The respondents conceded that the Federal High Court lacked jurisdiction to try the case. The Apex Court held that from the decisions in Bronik and Mandara cases, it is clear that the Federal High Court did not have the jurisdiction to entertain the charges. Thus, the appeal was allowed.

In the instant case, the appellant, a licensed importer of firearms, had issued to him by the police a license for the importation of firearms dated January, 8 1976 for 1,050 pieces of firearms and ammunitions. No expiry date was stated on the face of the license. Endorsements on the license showed that various quantities of firearms were imported at various dates in 1976. On September, 8 1980, he imported some quantities of firearms into Apapa port and presented to customs officers at the port a duplicate copy of his firearms license as authority for the importation. He was charged before the Federal High Court for four offences, two of which were for importing firearms with an expired firearms license contrary to provisions of the Customs and Excise Management Act 1959.

The preliminary objection raised to the jurisdiction of the court in respect of the two offences of importing firearms with expired licenses was overruled. On appeal against the ruling the Appeal Court, the appeal was dismissed. Still not satisfied and on final appeal to the Apex Court, the Apex Court held that from the evidence laid, the firearms licence was not the document to be used for the calculation of the customs duty. The document for the calculation of customs duty was the bill of lading. Therefore, the allegation against the appellant related to forgery and uttering of a document rather than custom duty which affected the revenue of the Federation. Thus, the appellate Apex Court held that the Federal High Court lacked jurisdiction. The court added that if the statement of offence and the evidence in support do not bring a matter within the jurisdiction of the Federal High Court, the laying of the charge under a law which a court has jurisdiction to administer will not confer jurisdiction on the court.

In the instant case, counsel for the appellant contended that as the Constitution divided judicial powers between the Federation and States, only Federal Courts have the power to entertain Federal matters and States' Courts, State matters. The Supreme Court, while rejecting counsel's contention, held that judicial powers and jurisdiction are not synonymous. The Apex Court conceded that although, the judicial powers of the State are vested in States' Courts and those of the Federation, in Federal courts, nonetheless, the jurisdiction of these courts are specifically provided for in several sections of the Constitution. By section 272 of the Constitution, States' High Courts have jurisdiction to determine federal causes and matters. States' High Courts are divided into the judicial divisions shown in Table 5.1, p. 55. These judicial divisions are established for purposes of administration and convenience, and each exercises the jurisdiction of the State High Court as a High Court of that State and not as a High Court of that division.

The Federal High Court:

The Federal High Court is established under section 249 of the 1999 constitution. The Criminal jurisdiction of the court is provided by section 251 (2) (3) of the Constitution. From the above provision, the jurisdiction of the court will cover:

• Treason.

• Offences in respect of 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 copyright, patent, designs, trademarks and merchandise marks.

• Admiralty cases.

• Bankruptcy and insolvency.

• Aviation and safety of aircraft.

• Arms, ammunition and explosives.

• Drugs and poisons.

• Offences relating to the revenue of the Government of the Federation in which the said government or any organ thereof or a person suing or being sued on behalf of the said government is a party etc.

It is important to know that while section 251(1) CFRN 1999 is unequivocal about the exclusive jurisdiction of the Federal High Court in civil matters, section 251 (2) which attempts to define or delimit the Criminal jurisdiction of the Federal High Court omitted the word 'exclusive'. This has cast doubts on the exclusiveness of the jurisdiction of the court with respect to criminal matters. By Section 251 (2), the Federal High Court has jurisdiction to entertain matters in respect of treason, treasonable felonies and allied matters arising out of section 251 (1).

In the instant case, counsel for the appellant contended that as the Constitution divided judicial powers between the Federation and

States, only Federal Courts have the power to entertain Federal matters and States' Courts, State matters. The Supreme Court, while rejecting counsel's contention, held that judicial powers and jurisdiction are not synonymous. The Apex Court contended that although the judicial powers of the State are vested in States' Courts and those of the Federation, in Federal courts, nonetheless, the jurisdiction of these courts are specifically provided for in several sections of the Constitution.

Save for the jurisdiction conferred on the Federal High Court by the Federal High Court Act, the National Assembly did not extend the jurisdiction of the Federal High Court by conferring additional jurisdiction on it. Section 7(3) of the Federal High Court Act does not vest additional jurisdiction on the Federal High Court over and above the jurisdiction vested by section 7(2). Therefore, section 7(3) is not to be read in isolation, but in conjunction with section 7(1).

In this case, the Apex Court cited with approval its decision in Bronik Motors Ltd. V. Wema Bank Ltd. It stated that the Bronik case dealt with the civil jurisdiction of the Federal High Court. The court also held that the criminal jurisdiction of the Federal High Court is intertwined with its civil jurisdiction. It concluded that section 7(3) is an adjunct to section 7(2) and thus, it must be read in relation to, and not independent of section 7(1). The Apex Court therefore, held that the Federal High Court had no jurisdiction to try matters which did not fall within the jurisdiction of the court.

Section 8(1) of the Federal High Court Act provides that:

In so far as jurisdiction is conferred upon the Federal High Court in respect of the causes or matters mentioned in the foregoing provisions, the High Court or any other court of a state shall, to the extent that jurisdiction is so conferred upon the Federal High Court as provided for in the Federal High Court Act, cease to have jurisdiction in relation to such causes or matters.

Section 8 of the FHC Act purport to oust the jurisdiction of States' High Courts and any other court in respect of matters in which the Federal High Court is vested with jurisdiction. The ouster clause

contained in section 8 has been declared to be null and void and of no effect, to the extent of its inconsistency with the provision of section 236 of the 1979 Constitution of the Federal Republic of Nigeria (now section 251 of the 1999 Constitution of the Federal Republic of Nigeria).

In the instant case, the plaintiff opened an irrevocable letter of credit in favour of an American company for the purchase of several tons of rice by the second defendant. It was stipulated in the bill of lading that the goods were not to be released until the bill of lading was endorsed by the plaintiff. The first defendant, without obtaining the necessary endorsement, released the goods to the second defendant.

The second defendant sold the goods and failed to pay the proceeds from the sale to the plaintiff. The plaintiff instituted an action in the Lagos State High Court claiming approximately N1,300,000.00 being the value of the letter of credit. Judgment was delivered in favour of the plaintiff at the trial court.

The defendant appealed to the Appeal Court contending, inter alia, that the State High Court had no jurisdiction to try the case being an admiralty matter. It contended that the case could only have been tried by the Federal High Court. The Appeal Court accepted counsel's contention that by virtue of section 236(1) of the Constitution of the Federal Republic of Nigeria 1979, the jurisdiction of the State High Court is unlimited. The limitation on the jurisdiction of the State High Court contained in section 8 of the Federal High Court 1973 is in conflict with section 236(1), and to the extent of the inconsistency, is null and void and of no effect. Therefore, it submitted that the Appeal Court erred in law in upholding that the Lagos State High Court had no jurisdiction to try the case. The Supreme Court accepted counsel's contention and held that any limitation on the unlimited jurisdiction of the State High Court is unconstitutional, and therefore, null and void. The Apex Court concluded that the Lagos State High Court has jurisdiction to entertain the matter and allowed the appeal.

Magistrates' Courts -- Northern States:

In the above case, it was alleged that the accused committed the offence of official corruption. At the time the offence was committed, the law in force in Northern Nigeria was the Criminal Code. Thus, the accused person was charged under section 116 of the Criminal Code. The maximum punishment prescribed for the offence was 14 years' imprisonment. The accused was charged before a Magistrate Grade 1 Court and convicted. On appeal against conviction, counsel for the appellant contended that that the Criminal Code Law is a different law to the Penal Code Law, and since the law is silent on jurisdiction, the provisions of section 13(2) of the Criminal Procedure Code are applicable.

By section 13(2), a Magistrate Grade 1 is ousted of the jurisdiction to try the offence because the maximum punishment prescribed for the offence is 14 years which exceeds the maximum punishment a Magistrate Grade 1 can impose. The court held that the Magistrate Grade 1 Court lacked the jurisdiction to try the case, and the appeal was allowed.

In the instant case, the accused persons were tried summarily by then Magistrates' Court. The charge contained an allegation of two offences, one punishable with life imprisonment and the other punishable with imprisonment for one year under the Criminal Code. They were convicted.

The appellate court held that under the provisions of section 13(2) of the Criminal Procedure Code, a Magistrates' Court had no jurisdiction to try offence punishable with imprisonment for life. Thus, the appeal was allowed.

Magistrates' Courts -- Southern States:

In this case, the law is that every magistrate other than Magistrate Grade 111, has jurisdiction to try indictable offences, except those punishable with death. Before jurisdiction is assumed to try indictable offence, the magistrate must obtain the consent of the accused person and the consent of the prosecutor if the prosecutor is a state counsel.

In the instant case, the accused person was arraigned before a Magistrates Grade 11 Court on a charge containing three offences. The maximum punishment which the magistrate could impose under the then Magistrates' Court Law was one year's imprisonment or a fine. The accused was convicted and the magistrate passed consecutive sentences on each of the three counts totaling two years. The accused was sentenced to two years' imprisonment. He appealed against his conviction contending that the magistrate exceeded the maximum punishment permitted by law so to do. The appellate court allowed his appeal and reduced the sentence stating that the magistrate cannot impose a term of imprisonment in excess of that permitted under the Magistrate's Court Law.

In the above case, the accused person was arraigned before a Magistrate Grade 1 Court on a charge containing three offences. The maximum term of imprisonment which the court was permitted under the then Magistrates' Court Law to impose was two years. The magistrate imposed term of four years. On appeal, the appellate High Court in allowing the appeal and reducing the sentence to two years, held that the Magistrate Grade 1 Court exceeded the maximum punishment it can impose.

In the instant case also, a Magistrate Grade 111 Court with jurisdiction to impose a maximum fine of N50 convicted an accused on a charge containing seven offences. It imposed a fine of N102. On appeal, the fine was reduced to N50.

In the instant case, the accused person was arraigned before a Magistrates' Court for allegedly committing two offences, an election offence and the offence of robbery -- the election offence being an offence triable summarily, and the offence of robbery being one for which the consent of the accused was required because the magistrate could not impose the maxim punishment prescribed for the offence. The accused gave his consent in respect of the offence of robbery and the magistrate assumed jurisdiction. During the trial, the election offence triable summarily was amended. After the amendment, the magistrate proceeded with the trial and the accused was convicted.

The accused appealed that his conviction was null, void and of no effect because the magistrate failed to obtain a fresh consent as required by law after amending the charge. The Supreme Court held that the count amended was for an offence triable summarily. Being an offence triable summarily, the magistrate was not required to obtain the consent of the accused before assuming jurisdiction. Thus, the appeal was dismissed.

The Supreme Court Of Nigeria

Supreme Court has jurisdiction over an appeals emanating from Court of Appeal, including criminal matters, by virtue of the provision of section 233 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

Juvenile Courts

The Juvenile Court is a Special Court constituted under the Children and Young Persons Law 1994 (CYPL) with sole jurisdiction to try all offences against young offenders except in two cases:

(i) Where the charge is one of homicide. Section 8(2) CYPL

(2) Where the juvenile is charged jointly with an adult. Section 6 (2) CYPL.

In the above case, the Court held that Juvenile Courts are courts of criminal jurisdiction for the trial of children and young persons.

Of noteworthy is the fact that Juvenile Courts have no jurisdiction to entertain civil actions pertaining to custody and maintenance of children. The various States of the Federation have their Children and Young Persons Laws, which are more or less identical.

The functions of Juvenile Courts with respect to offence(s) committed by children and young persons are:

• Courts are not open to the public. Section 6(5) Children and Young Persons Law 1994 (CYPL).

• Identity of offender(s) is not to be published without leave of

  court. Section 6(5) -- Children and Young Persons Law 1994 (CYPL).

• Expressions such as 'conviction' and 'sentence' not to be used. Section 6(5) -- Children and Young Persons Law 1994 (CYPL).

• 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. This the court stated in above-mentioned case.

• Committal to an approved institution. Section 11 -- Children and Young Persons Law 1994 (CYPL).

Determination of Age

The court in the above cases, held that where a young person committed an offence and his age is in issue, the court shall make due inquiry and may take such evidence as may be forth coming including the production of a birth certificate or a certificate signed by a government medical officer. The age is determined thereafter by the court and shall for the purpose of the law, be deemed to be the true age of the person. See also section 29 CYPL.

Determination of Age

The court in the above cases, held that where a young person committed an offence and his age is in issue, the court shall make due inquiry and may take such evidence as may be forth coming including the production of a birth certificate or a certificate signed by a government medical officer. The age is determined thereafter by the court and shall for the purpose of the law, be deemed to be the true age of the person. See also section 29 CYPL.

In the above cases, the Supreme Court held that by virtue of section 368 Criminal Procedure Act, if the evidence on record shows that at the time the offence was committed, a defendant charged with capital offence had not attained the age of 17 years, it will be wrong of any court not only to sentence him to death, but also to even pronounce such sentence. If the trial judge felt that the defendant put his age rather low, he would be at liberty to adjourn the case and call a medical witness to testify as to the age of the defendant.

In the above cases, the Supreme Court held that by virtue of section 368 Criminal Procedure Act, if the evidence on record shows that at the time the offence was committed, a defendant charged with capital offence had not attained the age of 17 years, it will be wrong of any court not only to sentence him to death, but also to even pronounce such sentence. If the trial judge felt that the defendant put his age rather low, he would be at liberty to adjourn the case and call a medical witness to testify as to the age of the defendant.

In this case, the law is that the age of a person is determined by the production of direct evidence relating to age such as a birth certificate. In the absence of such direct evidence, indirect evidence is admissible. Indirect evidence can take the form of oral testimony as to the age of the accused by his parents or relations. Where there is a dispute as to the age of the accused - for instance, in the absence of a birth certificate, the age stated by the accused or his parents may appear untrue to the court. It is provided that a government medical practitioner on examination of the accused person shall issue a certificate stating the age of the accused.

Court Martial:

Court Martial are established by the Armed Forces Decree No. 105 of 1993 (as amended). The Decree consolidates pre-existing legislations on the subject, i.e. Nigerian Army Act Cap. 294 L.F.N. 1990, the Air-Force Act Cap. 15 L.F.N. 1990 and the Navy Act Cap. 288 L.F.N. 1990. The A.F.D. 1993 now Armed Forces Act, 2004 (AFA) established two types of Court Martial:

(i) A General Court Martial consisting of a President and not less than four members, a waiting member, a liaison officer and a Judge Advocate.

(ii) A Special Court Martial consisting of President and not less that two members, a waiting member, a liaison officer and a Judge Advocate. See section 129 AFA 2004.

For purpose of the constitution of the court martial, the waiting member, liaison officer and judge Advocate should not be counted. They are regarded as adjuncts to the court. This the court stated in the case above.

By section 130 of the AFA 2004, the Courts Martial shall have jurisdiction to try a person subject to service law for offences created under the Decree as held by the court in the case above.

The offences include:

• Misconduct in Action.

• Insubordination.

• Absence from Duty and Drunkenness, etc. See section 45 103 Armed Forces Act 2004.

Apart from these Military offences, the courts can also try civil offences as provided by sections 104 -- 114 of the Act.

For officers having power to convene a Court Martial, and the Constitution of Court Martial. See generally sections 131, 133 and 136 Armed Forces Act respectively. The power to convene Court Martial can be delegated -- section 131.

The offences include:

• Misconduct in Action

• Insubordination

• Absence from duty and Drunkenness, etc. See section 45 -- 103 Armed Forces Act.

Apart from these Military offences, the courts can also try civil offences as provided by sections 104 -- 114 of the Act.

For officers having power to convene a Court Martial, and the Constitution of Court Martial. See generally sections 131, 133 and 136 Armed Forces Act respectively.

In the cases above, the court stated that the power to convene Court Martial can be delegated. Section 131(3) of the Act.

Provisions relating to procedure for trials before Courts Martial are stated in sections 137 -- 146 Armed Forces Act.

It was held by the court in the instant case that a Court Martial is

bound by rules of evidence and manifestation of fair trials. Sections 148 -- 155 of the Act provide for Confirmation, Revision and Review of Proceedings of Courts Martial.

In the above cases, the court stated that it is only where the applicable Nigerian enactments are silent on the procedure and practice to be followed in respect of a particular matter of procedure that resort is permitted to be made to be made to the procedure and practice under English law.

In the above cases, the court stated that it is only where the applicable Nigerian enactments are silent on the procedure and practice to be followed in respect of a particular matter of procedure that resort is permitted to be made to be made to the procedure and practice under English law.

In the above cases, the court stated that it is only where the applicable Nigerian enactments are silent on the procedure and practice to be followed in respect of a particular matter of procedure that resort is permitted to be made to be made to the procedure and practice under English law.

In this case, the court held that in the absence of provisions in Nigerian enactments, the English procedure rules are applicable in Nigeria by virtue of section 363 of the criminal Procedure Act.

In these cases, the law is that the principal enactments are silent on the procedure to be followed to apply for bail in the High court after an application for bail by the accused person in the lower court has been rejected. The Courts in Southern Nigeria invoke the provisions of Section 363 of the Criminal Procedure Act and hold that an application for bail in the High Court, after an application has been made before a magistrate, should be by summons and not by motion. The reason for this is that the procedure in the English High Court is to bring such an application by way of summons.

In these cases, the law is that the principal enactments are silent on the procedure to be followed to apply for bail in the High court after an application for bail by the accused person in the lower court has been rejected. The Courts in Southern Nigeria invoke the provisions of Section 363 of the Criminal Procedure Act and hold that an application for bail in the High Court, after an application has been made before a magistrate, should be by summons and not by motion. The reason for this is that the procedure in the English High Court is to bring such an application by way of summons.

In this case however, the law is that Courts in Northern Nigeria, permit the application to be brought either by way of motion or summons on the ground that since the Criminal Procedure Code is silent on the procedure to be followed in bring such application, it can be brought by either method.

In the above case, the law is that the Criminal Procedure Act is silent on the procedure to be followed for an application to a High Court Judge to obtain consent to file an information in the registry of the High Court. Thus, by Section 363 of the Criminal Procedure Act, the Indictments (Procedure) Rules 1971 of England are followed by state counsel bring such an application before a judge.

In the above case, Lord Herschell observed as follows:

I think the proper course is in the first instance to examine the language of the statute and to ask what is its natural meaning, uninfluenced by any considerations derived from the previous state of the law, and not to start with inquiring how the law previously stood and then assuming that it was probably intended to leave it unaltered to see if the words of the enactment will bear an interpretation in conformity with this view. If a statute, intended to embody in a code a particular branch of the law, is to be treated in this fashion, it appears to me that the utility will be almost entirely destroyed and the very object with which it was enacted will be frustrated. The purpose of such statute surely was that on any point specifically dealt with by it, the law should be ascertained by interpreting the language used, instead of as before by roaming over a vast number of authorities in order to discover what the law was, examining it by minute critical examination of the prior decisions. I am of course far from asserting that resort may never be had to the previous state of the law for the purpose of aiding in the construction of the provisions of the code. If, for example, a provision be of doubtful import, such resort would be perfectly legitimate. Or again, if in a code on the law of negotiable instruments words to be found have previously acquired a technical meaning or been used in a sense other than the ordinary one, in relation to such instruments the same interpretation might well be put upon them in the code. The first step to be take should be to interpret the language of the statute and that an appeal to earlier decisions can only be justified on some special ground.

In the above case, the law is that the Courts, in interpreting the provisions of the enactments, may invoke in aid the interpretation given to provisions in identical enactments in other jurisdiction. For example, because the Criminal Procedure Code is based on the Indian Code, interpretation of the Indian Code by the Indian Superior Courts can be invoked as an aid in its interpretation. However, such foreign decisions are persuasive and not binding effect. The Courts may also employ as an aid to the interpretation of the principal enactments, the opinions of acknowledged and distinguished jurists.

Every offence committed by a person is an affront or defiance of state authority. Commission of offence is attack against the State, the people. Nevertheless, there is an order or accepted legal means and procedure of how and who steps up for the State to seek vengeance on behalf of the people. It is the State (or the Federation) that institutes criminal proceedings against suspected criminal offenders.

So, it is important to note that the power institute legal action against accused persons can only be exercised by those legally empowered to do so. It is not every Tom, Dick and Harry that can competently institute criminal proceedings against accused persons.

The court in the instant case, held that where there is no competence to institute criminal proceedings, any trial in such proceedings is anullity.

Competence is so crucial in prosecution such that an indictment without jurisdiction will be quashed, even after the prosecution has closed its case. This was the decision of the court in the case above.

Persons that can institute criminal actions are:

• The Attorney-General (Federal and State)

• The Police

• Private Persons

• Private Legal Practitioners

• Special Prosecutors

By virtue of the provision of Sections 174(2) and 211(2) of the 1999 Constitution of the Federal Republic of Nigeria, the powers of the Attorney-General can be exercised by officers in his department.

It is important to know that this case also made it clear that the Attorney-General may also delegate his powers to such other agencies of Government with prosecutorial functions such as the Police, Customs, EFCC, ICPC, etc.

The decision of the Court in this case is exactly as has been set under the case of A. G. Kaduna V. Hassan (1985) NWLR (PT. 8) 483 directly above.

The court in this case held that that the power to takeover or discontinue a criminal proceeding can only be exercised where there is an incumbent Attorney General.

It is important to know that:

• The power given to the Attorney-General is given to him by law.

• It is only the Attorney-General that can orally enter a nolle to discontinue a case.

• The Attorney-General need not give reason to discontinue a case.

• He does not require the consent of the court to enter a nolle.

• His only limitation is that he must enter such nolle any time before judgment.

• The implication of this is that nolle cannot be entered on appeal.

• It is important to know that by the provision of Sections 174(3) and 211(3) respectively of the 1999 Constitution of the Federal republic of Nigeria, the Attorney-General in exercising the powers conferred on him must:

(i) Have regard to public interest.

(ii) Have regard to the interests of justice.

(iii) Appreciate the need to prevent abuse of the legal process.

These subjective considerations are not a precondition to the Attorney-General's exercise of his power in the sense that a court can nullify his action if he fails to take these factors into due and proper account before exercising his power.

It is of noteworthy that the expression, 'abuse of legal process' does not have precise and exact definition. But generally, it connotes an improper use of a procedure laid down under the law for the bringing of legal processes.

In this case, the Apex Court held a private legal practitioner can appear for the State. Oputa JSC stated thus:

I think it is too late in the day now to argue that a private legal practitioner cannot appear for the State in civil matters. If in criminal matters where "the public interest" are crucial matters for consideration, if there, private legal practitioners can represent the State without first proving that they were duly authorized, I wonder why that should be insisted upon in civil cases like the one now on appeal.

Criminal prosecution was instituted against the accused person by the Director of Public Prosecutions who briefed a private legal practitioner to appear for the State. Counsel for the accused person objected to the appearance of a private legal practitioner on the premise that a private legal practitioner had no competence to appear for the Director of Public Prosecutors under section 104(3) of the 1963 Constitution (now section 211(3) of the 1999 Constitution) which provides that the powers of the Director of Public Prosecutions to institute, take over, undertake and discontinue proceedings may be exercised by him in person or through members of his staff. The High Court stated a case for the opinion of the Federal Supreme Court on whether a private legal practitioner could appear for the Director of Public Prosecutions.

The court construed the provisions of section 104(3) of the 1963 Constitution (now section 211(3) of the 1999 Constitution) and held that the term 'undertake' has to be construed along with 'institute' and 'take over'. The court held that the Director of Public Prosecutions shall institute, take over and undertake criminal proceedings. In other words, the Director of Public Prosecutions shall commence and make himself responsible for criminal prosecutions. After instituting, taking over and undertaking the proceedings, he can brief a private legal practitioner to appear for him. On the reference made to it, the court decided that the Director of Public Prosecutions had power, having regard to section 104(3) of the 1963 Constitution (now section 211(3) of the 1999 Constitution) to instruct a private legal practitioner to appear in a criminal case on his behalf.

In this case, an information charging the accused person with the offences of arson, willful damage to property, stealing and forgery was preferred against him in the High Court. The information was preferred by the Director of Public Prosecutions and signed by a state counsel. The accused was convicted. On appeal against conviction, it was contended on behalf of the appellant that the information was preferred without authority, and thus, the charge, trial and conviction were null, void and of no effect. The Supreme Court held that as the Attorney-General of the State had expressly delegated his powers under section 191(1) of the 1979 Constitution (now 174(3) of the 1999 Constitution in writing by gazette to the Director of Public Prosecutions and all grades of state counsel in the Department of Public Prosecutions (DPP), the information was validly filed by the DPP and signed by a state counsel.

Furthermore, the court held that by express delegation, a donee of the Attorney-General's power stepped into the Attorney-General's shoes and could prefer an information in his own name. Consequently, the appeal was dismissed.

The court in the above case, held that the power to institute criminal proceedings can be exercised by officers of his office and the Government Agencies with prosecutorial powers even where there is no incumbent Attorney-General

The kernel of the decision of the Courts in these two cases is that the matter of delegation of the power of the Attorney-General is not one light matter to be left for imagination or presumption, so it must be expressly stated.

The kernel of the decision of the Courts in these two cases is that the matter of delegation of the power of the Attorney-General is not one light matter to be left for imagination or presumption, so it must be expressly stated.

By virtue of the provision of Sections 174(2) and 211(2) of the 1999 Constitution of the Federal Republic of Nigeria, the powers of the Attorney-General can be exercised by officers in his department.

It is important to know that this case also made it clear that the Attorney-General may also delegate his powers to such other agencies of Government with prosecutorial functions such as the Police, Customs, EFCC, ICPC, etc.

It is pertinent to know that the power to institute, undertake, take over, continue and discontinue criminal proceedings is conferred upon the Attorney-General of the Federation and that of the State by virtue of the provision of Sections 174(1) and 211(1) respectively of the 1999 Constitution of the Federal Republic of Nigeria. It is pertinent to know also is that the power so conferred on the Attorney-General may be exercised by him in person or through officers of his department by virtue of the provision of sections 174(2) and 211(2) of the 1999 Constitution of the Federal Republic of Nigeria.

The Supreme Court, in the instant case, held that the Attorney General has unfettered discretion to prosecute persons in respect of any offence.

Generally speaking, the powers of A.G. Federation are restricted to federal offences and the powers of the A.G. States are restricted to state offences. However, the Attorney-General of a state can prosecute a federal offence in two circumstances, to wit:

Federal Laws intended to operate as a state law:

In the instant case, whilst a charge of manslaughter was pending in the Magistrates' Court against any accused person, a fresh information of murder based on the same facts as the charges of manslaughter was preferred against the accused in the High Court and the accused was convicted. On appeal against conviction, it was contended that the information, trial and conviction for the offence of murder was a nullity because the criminal charge for manslaughter in the Magistrates' Court was not withdrawn before the filing of the information for murder. The Supreme Court deprecated the practice whereby proceedings in two courts on the same facts were brought against an accused person.

The Apex court held that the action of the prosecution amounted to an abuse of the process of court because the earlier charge of manslaughter had not been withdrawn before the subsequent information for murder was filed. The court concluded however, that such improper conduct by the Attorney-General did not render the proceedings in the High Court a nullity because of the wide powers enjoyed by the Attorney-General to discontinue or terminate any criminal trial before judgment.

It was held by the court in the instant case that the power of nolle-prosequi which the Attorney-General has, is unfettered and cannot be questioned even by a court.

Delegation of the A-G's Power:

In this case, the court held that where there is no incumbent Attorney-General, no other officer in his department can enter a nolle-prosequi. It was also noted that:

• Nolle-Prosequi cannot be entered on appeal.

• It is unfettered and cannot be questioned even by a court.

In the instant case, the court held where the Attorney-General enters a nolle-prosequi for the defendant, the effect would only amount to mere discharge (not an acquittal) of the defendant.

This power of the A.G. to take over cases, continue or discontinue the prosecution, is very personal to the A.G that when there is no incumbent Attorney-General, no other officer in the A.G.'s department or office can exercise it.

The Attorney-General is clothed with the power to take over and continue criminal proceedings instituted by any other authority or person, including the Police, EFCC, ICPC, Customs, NDLEA, and private prosecutors. This is the lesson that the court stated in the above cases.

The power of the Attorney-General to discontinue criminal proceedings, which is also known as Nolle Prosequi is unarguably the most far-reaching and controversial of his powers.

• This power can be exercised either orally by the Attorney-General in person or in writing through any of the officers in his department. See Sections 124(1) ACJL Kano, 107 ACJA.

• This distinction is however, not present in the ACJL. See section 71 ACJL.

• The effect of entering a nolle-prosequi is a mere discharge (not an acquittal) of the defendant.

A.G's Power to enter Nolle Proequi:

The Attorney-General is clothed with the power to take over and continue criminal proceedings instituted by any other authority or person, including the Police, EFCC, ICPC, Customs, NDLEA, and private prosecutors. This is the lesson that the court stated in the above cases.

The power of the Attorney-General to discontinue criminal proceedings, which is also known as Nolle Prosequi is unarguably the most far-reaching and controversial of his powers.

• This power can be exercised either orally by the Attorney-General in person or in writing through any of the officers in his department. See Sections 124(1) ACJL Kano, 107 ACJA.

• This distinction is however, not present in the ACJL. See section 71 ACJL.

• The effect of entering a nolle-prosequi is a mere discharge (not an acquittal) of the defendant.

A.G's Power to enter Nolle Proequi:

By the instrumentality of a Fiat the Attorney-General of the Federation delegates the authority to the State A.G to prosecute the particular matter or proceedings. But where there is no such delegation, the Attorney-General of the State cannot prosecute. This is the decision of the court in the above case. See also section 286(4) ACJA.

A-G's Power to Take Over and Continue Criminal Proceedings:

In the above case, the court held that the Attorney-General of a state can prosecute a federal offence where a Federal Law is intended to operate as a State Law.

The Statute creating an offence may designate a particular person or officer as the appropriate person to initiate proceedings. Of noteworthy is that the Statutes that create special prosecutors include the under-listed as held by the court in the above cited authorities.

• The EFCC (Establishment) Act

• Customs and Excise Management Act.

The special prosecutor need not be a lawyer. E.g. Section 66 of the Factories Act vests the power of criminal proceedings in respect of factory offences on the Inspector of the Factories.

The Statute creating an offence may designate a particular person or officer as the appropriate person to initiate proceedings. Of noteworthy is that the Statutes that create special prosecutors include the under-listed as held by the court in the above cited authorities.

• The EFCC (Establishment) Act

• Customs and Excise Management Act.

The special prosecutor need not be a lawyer. E.g. Section 66 of the Factories Act vests the power of criminal proceedings in respect of factory offences on the Inspector of the Factories.

These cases, among other legal points, teach that the Police has the power to institute criminal proceedings.

• The power of the Police to institute criminal proceedings is statutorily provided in Section 66(1) of the Police Act 2020.

• The power is however, made subject to the power of the Attorney-General.

• It is settled law that the Police have power to institute criminal proceedings in all courts in Nigeria as stated by the court in the above authorities.

• The ACJL, Kano Section 129 (6) (f) and ACJL, Lagos in section 78 provided for the power of the police to prosecute matters in Magistrates courts. No such power was mentioned by the same ACJL Kano and ACJL of the power of the police to prosecute at the High Court.

These cases, among other legal points, teach that the Police has the power to institute criminal proceedings.

• The power of the Police to institute criminal proceedings is statutorily provided in Section 66(1) of the Police Act 2020.

• The power is however, made subject to the power of the Attorney-General.

• It is settled law that the Police have power to institute criminal proceedings in all courts in Nigeria as stated by the court in the above authorities.

• The ACJL, Kano Section 129 (6) (f) and ACJL, Lagos in section 78 provided for the power of the police to prosecute matters in Magistrates courts. No such power was mentioned by the same ACJL Kano and ACJL of the power of the police to prosecute at the High Court.

The above cases above have laid to rest the controversy whether or not the police can prosecute beyond the Magistrates' Court

The above cases above have laid to rest the controversy whether or not the police can prosecute beyond the Magistrates' Court.

By virtue of the provision of section 381(C) of the ACJA, an information may be filed by a private legal practitioner authorized by the Attorney-General of the Federation. Where a legal practitioner is so engaged, he is said to enjoy the fiat of the Attorney-General. This was the decision of the court in the above cases

By virtue of the provision of section 381(C) of the ACJA, an information may be filed by a private legal practitioner authorized by the Attorney-General of the Federation. Where a legal practitioner is so engaged, he is said to enjoy the fiat of the Attorney-General. This was the decision of the court in the above cases

In the instant case, an information was preferred against the accused persons containing two counts: conspiracy to murder and murder. The information was filed by the Attorney-General of Lagos State without the consent or direction of a High Court judge. The accused persons brought an application to quash the information on the ground that it was an abuse of the process of court. The court, in granting the order prayed for by the applicants and quashing the information, [held that the information was defective both in form and substance]. The court held that the failure of the Attorney-General to obtain the consent of a judge of the High Court before filing the information was a contravention of section 340(2) (b) of the Criminal Procedure Law of Lagos State and a defect in form. Thus, the information before the court was improperly filed and was quashed.

In this case, the appellant was arraigned and convicted in the High Court on a complaint which contains the sole allegation of a non-indictable offence of sedition. He was convicted. He appealed against his conviction.

On appeal, it was contended that the High Court lacked jurisdiction to try the non-indictable offence. [The Supreme Court, dismissing the appeal, held that the High Court had jurisdiction to try the offence.

The Apex Court further held that the appellant was properly arraigned before the court by way of complaint.] This is because the procedure is provided for under Sections 77 and 277 of the Criminal Procedure Act.

In the instant case, the Supreme Court construed the effect of the Administration of Justice (Miscellaneous Provisions) Law No. 4 1979 and the Criminal Procedure (Amendment) Edict No. 7 1987 on section 342 of the Criminal Procedure Law of Lagos State. It stated thus:

*"Since the general provision in section 340(1) is subject to the specific provision in section 340(2), it follows that other offences other than perjury must be initiated in accordance with the procedure prescribed under the criminal Procedure Law. Hence, the information within the meaning of section 342 relied upon by the respondent for the exercise of his right must be limited to the offence of perjury. The right of a private prosecutor to initiate prosecution in all other offences has been withdrawn by the amendment to section 340(2) of the Criminal Procedure Law, Cap.32, vol. 11, Laws of Lagos State, 1973 by the Administration of Justice (Miscellaneous Provisions) Law No, 4 of 1979 and the Criminal Procedure (Amendment) Edict No. 7 of 1987. A private prosecutor can now only initiate prosecution for the offence of perjury."

In the instant case, the Supreme Court construed the effect of the Administration of Justice (Miscellaneous Provisions) Law No. 4 1979 and the Criminal Procedure (Amendment) Edict No. 7 1987 on section 342 of the Criminal Procedure Law of Lagos State. It stated thus:

*"Since the general provision in section 340(1) is subject to the specific provision in section 340(2), it follows that other offences other than perjury must be initiated in accordance with the procedure prescribed under the criminal Procedure Law. Hence, the information within the meaning of section 342 relied upon by the respondent for the exercise of his right must be limited to the offence of perjury. The right of a private prosecutor to initiate prosecution in all other offences has been withdrawn by the amendment to section 340(2) of the Criminal Procedure Law, Cap.32, vol. 11, Laws of Lagos State, 1973 by the Administration of Justice (Miscellaneous Provisions) Law No, 4 of 1979 and the Criminal Procedure (Amendment) Edict No. 7 of 1987. A private prosecutor can now only initiate prosecution for the offence of perjury."

In this case, the appellant applied to the Director of Public Prosecutions of Lagos State for endorsement of his private information to prosecute the respondents for the murder of Dele Giwa. The Director of Public Prosecutions failed to endorse the information on the ground that he had not decided whether or not to prosecute the respondents. The appellant filed an application in the High Court for leave to apply for an order of mandamus compelling the Director of Public Prosecutions to endorse his information. [The High court rejected the appellant's application and held that the Director of Public Prosecutions had not reached a decision whether or not to prosecute.] The appellant's appeal against the ruling of the High court to the Appeal Court was dismissed. *On further appeal, the Supreme Court, [the Apex Court noted that the appellant, as a citizen of Nigeria, has locus standi to initiate criminal proceedings against a person suspected of having committed an offence]. The Apex Court stated that:

It is a universal concept that all human beings are brothers and are assets to one another. All human beings living in the same country and being citizens of the same country are more closely related to one another and are in truth and in fact each other's keeper than those living in countries separated by great distances. The death of one is a loss to the other whether by natural of felonious means.

The court concluded [that the failure of the Director of Public Prosecutions to reach a decision whether or not to prosecute the respondents, is tantamount to a decision not to prosecute.] Therefore, the appeal was allowed, and leave was granted to the appellant to apply for an order of mandamus.

In this case, the appellate company instituted a civil action against a shipping company for the loss of some of the goods consigned to it by an overseas supplier. The respondents were joined as co-defendants to the suit by order of court. The action commenced before a judge who was subsequently retired before the conclusion of the case. The case was commenced de novo before another judge. The second judge observed that the evidence given before him by one of the witnesses was different from the evidence given before the retired judge. The judge adjourned the trial and ordered the witness to be detained by the police and referred the case of perjury to them. On appeal against the order of the court, the Appeal Court in unanimously allowing the appeal, held that the trial judge erred in law in ordering the detention of the witness and referring he case to the police for prosecution of the witness. The appellate court stated the procedure for trial of a person alleged to have committed the offence of perjury before the court as contained in section 274 of the Criminal Procedure Act. The alleged perjurer can either be tried summarily by the court as if he had committed the offence of contempt of court. Alternatively, the case could be reported to a law officer who could decide whether or not to file an information against the alleged perjurer. Thus, the appeal was allowed and the order of the lower court was set aside.

In this case, Longe J said that the depositions and statement revealed that the deceased, Dele Giwa had encounters with security men, principally the accused persons; that during these encounters, the deceased and the accused persons had heated exchange of words; that the accused persons at one time or another telephoned the deceased; that the utterances of the deceased when he was attacked referred directly or indirectly to the accused, therefore, that the accused persons ought to be prosecuted for the offences of conspiracy to murder and murder.

His Lordship held that [these facts were insufficient to support the offences alleged against the accused persons.] The evidence contained in the statement and depositions, even if believed, related to the official activities of the accused as officers of government. They could not be regarded as unlawful activities. Furthermore, there was no evidence of a common design between the accused persons to perpetrate an unlawful act on the deceased. Finally, there was no link between the action of the deceased and the alleged letter bomb that killed the deceased. Thus, the information was quashed.

In the case above, an information containing a count of the offence of murder was preferred against the accused persons. The information was preferred after obtaining the consent of the Chief Judge of the State High Court. The first accused person brought a motion to quash the information on the ground that the proof of evidence did not disclose the offence charged and that the information was an abuse of the process of court.

The High Court rejected the accused application. On appeal to the Appeal Court, the appeal was dismissed. On further appeal to the Supreme Court, the Supreme Court examined the statements and depositions upon which the consent order was granted by the High Court judge. The depositions revealed that a police constable was found murdered in the appellant's compound. The deceased was on duty when he was murdered. The appellant's compound had two gates which were locked up when not in use. On the day of the incident, the gates were locked and only the accused persons and the first accused's two daughters were within the compound. The first appellant's two dogs which sometimes barked, did not bark on the night of the incident.

[On the basis of the evidence contained in the depositions, the Supreme Court held that the proof of evidence disclosed a prima facie case against the appellants] which required some explanation from them. Thus. The appeal was dismissed.

In this case, an information was filed against the accused person after obtaining the consent of the judge. The information contained two counts of offences: obtaining money by false pretences and stealing. The accused person brought a motion to quash the information before the High Court. He contended that the depositions and statements did not disclose the offences charged. The State countered by contending that the information should not be quashed because further evidence would be adduced at the trial. The court accepted the contention of the State and dismissed the application. The accused appealed against the ruling of the High Court to the Appeal Court which allowed the appeal and quashed the information. [The appellate court held that the statements and proofs of evidence in support of the information did not disclose the offences with which the accused was charged.]

The court rejected the respondent's contention that further evidence would be adduced at the trial in support of the offences alleged against the appellant. The appellate court held that the contention of the respondent indicated that the respondent was not ready for prosecution or was fishing for material evidence with which to prosecute. The court concluded that as the proof of evidence did not disclose the offences alleged against the appellant, the information ought to have been quashed. The appellate court ordered that the information be quashed.

[Federal High Court:]

The court held that actions can be commenced before the Federal High Court by way of a charge. This is in spite of the provision of section 109 of ACJA which has a general provision. See - section 33 of the FHC Act, which has a specific provision on commencement of action at FHC. See also the above cited authority that buttressed the decision of the court in the instant case.

In the case above, an information containing two counts of offences of being in possession of firearms and ammunitions was preferred against the accused. [The consent of a High Court Judge was not obtained] before the information was filed against the accused. The accused was tried on the information. At the conclusion of the trial, defence counsel applied to quash the information. It was argued on the behalf of the accused that the information ought to be quashed because the prosecution did not obtain the consent of a High Court Judge before filing the information.

The appellate court therefore, declared the information incompetent and it was accordingly quashed.

In the instant case, the West African Court of Appeal held that an information charging a corporation with an indictable offence was properly filed [when the consent or direction of a High Court Judge was received]. An information filed by the registrar of the High Court without bearing the consent or direction of a High Court judge is irregularly filed and is liable to be quashed on the application of the a accused or suo motu by the court.

The court in this case held that where a defendant, the suspected offender against whom the application was made, and against whom same is granted, is aggrieved by the grant of consent/leave to file an information or prefer a charge against him, may apply to the court for the information/charge to be quashed.

• The issue of consent is very fundamental in the jurisdictions where it is required.

• Most jurisdictions, however, do not require consent for filing information or preferring a charge especially with the domestication of ACJL in various States.

• There is no consent under ACJA while filing an information or preferring a charge

In this case, the court held that an applicant may also appeal against the refusal of the court to grant his application

In the instant cases, the court held that in considering whether to grant consent/leave, the court must be satisfied that a prima facie case has been made out against the defendant person.

In the instant cases, the court held that in considering whether to grant consent/leave, the court must be satisfied that a prima facie case has been made out against the defendant person.

[State High Courts]

Application to File an Information/To Prefer A Charge:

Application to file an Information or to prefer a charge in the High Court of Kano State, under the ACJL Kano, consent of the Judge or leave of the High Court Judge respectively are no longer required to be sought before criminal proceedings are instituted therein.

Noteworthy also is the fact that in the States that still maintain the CPCL the application for consent or leave as a prerequisite to ignite the jurisdiction of the court must come by an application in the form of a letter. The Court in this subject-matter judicial authority stated these simplifying aspects of the procedure.

Nevertheless, the application must include:

• A copy of the proposed charge/information.

• Proof of evidence of witnesses.

• Unedited statement of the defendant(s) made during investigation.

• Where the application is brought by a person other than the Attorney-General, an affidavit stating that the statements contained in the charge/information are true to the best of his knowledge.

• Whether there has been any previous application.

• That there has been no committal proceedings.

Contents of a Charge Sheet:

In this case, the accused person was charged with receiving gratification on or about May 3 1960. The evidence adduced at the trial showed that the offence was committed between 5 and 7 May 1960. The magistrate before delivering judgment, amended the date on the charge to read on or about the 5 to 7 May 1960. The accused was convicted. On appeal against conviction, the appellate court observed that the amendment was not necessary. The court noted that although, the date of the offence should be stated in the charge sheet, it has never been necessary that it should be stated with exactitude.

In the above case, the accused was charged with murder in an information in the High Court. The statement of offence stated that the accused person murdered the deceased but particulars of offence stated that the accused person unlawfully killed the deceased. During the trial, the particulars of offence was amended to read 'murdered' instead of unlawfully killed. The accused person was sentenced and convicted. Aggrieved, he appealed against the conviction. The Supreme Court held that the charge was originally defective because the particulars supposed to have stated that the accused person murdered the deceased, so, the amendment was necessary.

In the instant case, the accused person was charged with murder. The statement of offence in the information stated the offence alleged against the accused as murder, but the particulars of offence stated that the accused unlawfully killed the deceased. The accused was convicted. On appeal against conviction, it was contended that the charge was defective because the particulars of offence stated that the accused 'unlawfully killed' the deceased instead of stating that the accused person 'murdered' the deceased. The Supreme Court rejected counsel's contention, and held that although, the precedents in the Third Schedule to the Criminal Procedure Act employs the word 'murdered' instead of 'unlawfully killed' for its precedent charge for murder, nonetheless, it is permissible to use the expression 'unlawfully killed' instead of 'murder' because the former expression encompasses both murder and manslaughter by virtue of section 315 of the Criminal Code. The Apex Court added however, that where the expression 'unlawfully killed' is being employed, the particular intention accompanying the act must be stated so that the accused person would know which of the specific offence he is being charged with.

The Apex Court, per Karibi-Whyte JSC stated that the particulars of offence should have stated that the appellant unlawfully killed the deceased by stabbing him with a dagger with intention to kill or do the deceased grievous bodily harm. That such particulars, which is consistent with section 316(2) would have brought the particulars of the offence in line with the statement of the offence and avoided the apparent ambiguity in the particulars of the offence. The Apex Court held that the charge was not defective ad that the appellant was not misled because he knew he was being tried for murder and he defended a charge of murder. Consequently, the appeal was dismissed.

stolen in the charge sheet.

In the above case, the accused persons were charged with stealing. The name of the owner of the lorry allegedly stolen was not stated in the charge. The accused were convicted on the charge of stealing. On appeal against their conviction, it was contended that the charge was defective because it did not contain the name of the owner of the property alleged to have stolen. The appellate court held that by virtue of the provision of section 154(1) of the Criminal Procedure Act, it was not necessary to state the owner of the property, except where the property was subject to special ownership. But where the property was not subject to special ownership, stating the owner of the property was not necessary. Thus, the appeal was dismissed.

The Supreme Court in this case held that except where necessary or required for the purpose of describing an offence depending on any special ownership of property, the name of the owner of a thing which was alleged stolen is not necessarily to be mentioned and/or stated in the charge sheet. But where the owner is known, it is good and satisfactory if his name is mentioned in the charge sheet. Where he is not known, the charge sheet should describe what was allegedly stolen as property of persons unknown.

In the case above, the accused persons were convicted of armed robbery. They appealed against their conviction to the Appeal Court on the ground that the charge was defective. The reason being that the name of the owner of the property allegedly stolen was not stated in the charge sheet. Their appeal was dismissed. On further appeal to the Supreme Court, the Apex Court dismissing their appeal, and relying on the provision of section 154(1) of the Criminal Procedure Act, held that it was not mandatory that the name of the owner of property allegedly stolen must be contained in a charge sheet.

In the case above, the accused person was charged with unlawful possession of firearms contrary to section 3 of the Firearms Act 1958 as amended by the Firearms (Amendment) Act 1966, and unlawful possession of ammunition contrary to section 9 of the Firearms Act 1966. The trial court held that the charge was defective because the accused was charged contrary to the definition section of the Firearms Act. The court stated that this was a contravention of section 151(3) of the Criminal Procedure Act, and that the accused person ought to have been charged with an offence against the penalty section of the Firearms Act.

Let us use the opportunity of reporting the decision in this subject-matter case of Harunami v. Bornu Native Authority to properly introduce the subject of CHARGES. A charge is a document containing the statement and particulars of offence(s) with which a person is defendant and tried before a court of law. See section 494 ACJA, section 371 ACJL, Lagos. In the Magistrates' Courts in the South and in the courts of the Northern States, it is referred to as a Charge. In the High Court in the South, it is referred to as an Information. It is usually drafted by the appropriate authorities, having power to charge a defendant.

In Magistrates' Courts in the North, it is drafted by the Magistrates. See section 129(10) ACJL, Kano. In Magistrates' Courts in the South, police officers draft the charge. See section 78 ACJL, Lagos, or law officers. See section 211 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

It is worthy of special note that before a magistrate drafts the charge, he must take evidence from the prosecution, and if the evidence before him reveals a prima facie case against the accused, the magistrate would proceed to draft a charge.

In the instant case, the magistrate, without hearing the prosecutor or any witness of the prosecutor, framed a charge of theft against the accused person. The accused was convicted. He appealed against his conviction. The court, in allowing his appeal, held that the trial court ought to have taken evidence from the prosecution witness before framing the charge.

In the High Court, a law officer or private prosecutor can sign an Information. See sections 77(1) (b) ACJL, Lagos provision. Other officers per force possess the power to draft the charge. A law officer can sign his name on an Information without indicating the Attorney- General as the ultimate authority where the Attorney General has delegated his powers to the officers of his department. This was the decision of the court in the above cases.

In the High Court, a law officer or private prosecutor can sign an Information. See sections 77(1) (b) ACJL, Lagos provision. Other officers per force possess the power to draft the charge. A law officer can sign his name on an Information without indicating the Attorney- General as the ultimate authority where the Attorney General has delegated his powers to the officers of his department. This was the decision of the court in the above cases.

In this case of Okeke v. Police, the accused person was charged with the offences of conspiracy and stealing. The trial magistrate convicted him on both offences and stated in the judgment book that the accused was charged under some sections of the Criminal Act. He appealed against the conviction stating that the charge was bad for ambiguity. The appellate court held that the sections of the enactment contravened by the accused person were not stated in the trial magistrate's judgment and there were no enactments known as the Criminal Acts, thus, the charge was in contravention of the provision of section 151(3) of the Criminal Procedure Act which provided that the written law and the section of the written law against which an offence is alleged to have contravened shall be duly set out in the charge. Consequently, the appellant's appeal was allowed.

Effect of Non-Compliance with the Rules

It was held in each and all the cases set out above, that as the whole essence or purpose of this rule against Ambiguity is to give a defendant notice of the charge against him, some errors on the part of the prosecutor that are not substantial and cannot said to have made the defendant unaware of the charge he is facing will not essentially invalidate the charge or lead the court to set aside any conviction based on the charge..

In this case of Okeke v. Police, the accused person was charged with the offences of conspiracy and stealing. The trial magistrate convicted him on both offences and stated in the judgment book that the accused was charged under some sections of the Criminal Act. He appealed against the conviction stating that the charge was bad for ambiguity. The appellate court held that the sections of the enactment contravened by the accused person were not stated in the trial magistrate's judgment and there were no enactments known as the Criminal Acts, thus, the charge was in contravention of the provision of section 151(3) of the Criminal Procedure Act which provided that the written law and the section of the written law against which an offence is alleged to have contravened shall be duly set out in the charge. Consequently, the appellant's appeal was allowed.

In this case of Okeke v. Police, the accused person was charged with the offences of conspiracy and stealing. The trial magistrate convicted him on both offences and stated in the judgment book that the accused was charged under some sections of the Criminal Act. He appealed against the conviction stating that the charge was bad for ambiguity. The appellate court held that the sections of the enactment contravened by the accused person were not stated in the trial magistrate's judgment and there were no enactments known as the Criminal Acts, thus, the charge was in contravention of the provision of section 151(3) of the Criminal Procedure Act which provided that the written law and the section of the written law against which an offence is alleged to have contravened shall be duly set out in the charge. Consequently, the appellant's appeal was allowed.

In this case of Okeke v. Police, the accused person was charged with the offences of conspiracy and stealing. The trial magistrate convicted him on both offences and stated in the judgment book that the accused was charged under some sections of the Criminal Act. He appealed against the conviction stating that the charge was bad for ambiguity. The appellate court held that the sections of the enactment contravened by the accused person were not stated in the trial magistrate's judgment and there were no enactments known as the Criminal Acts, thus, the charge was in contravention of the provision of section 151(3) of the Criminal Procedure Act which provided that the written law and the section of the written law against which an offence is alleged to have contravened shall be duly set out in the charge. Consequently, the appellant's appeal was allowed.

In this case of Okeke v. Police, the accused person was charged with the offences of conspiracy and stealing. The trial magistrate convicted him on both offences and stated in the judgment book that the accused was charged under some sections of the Criminal Act. He appealed against the conviction stating that the charge was bad for ambiguity. The appellate court held that the sections of the enactment contravened by the accused person were not stated in the trial magistrate's judgment and there were no enactments known as the Criminal Acts, thus, the charge was in contravention of the provision of section 151(3) of the Criminal Procedure Act which provided that the written law and the section of the written law against which an offence is alleged to have contravened shall be duly set out in the charge. Consequently, the appellant's appeal was allowed.

However, the court in the above cases, held that the errors in the charges were fundamental, that is, where there is seen to have existing a good chance the Defendant might have been confused as to which offence he was charged and tried as a result of the drafting of the charges/Counts, the error will cause the trial and conviction to be nullified, and possible re-trial Order entered.

It is worthy of note that the court does not regard just any omission or errors in the charge as material except the defendant was in fact misled by such error or omission. See sections 227 and 229 ACJL, Kano; section 220 ACJA; Section 158 ACJL, Lagos.

In this case of Okeke v. Police, the accused person was charged with the offences of conspiracy and stealing. The trial magistrate convicted him on both offences and stated in the judgment book that the accused was charged under some sections of the Criminal Act. He appealed against the conviction stating that the charge was bad for ambiguity. The appellate court held that the sections of the enactment contravened by the accused person were not stated in the trial magistrate's judgment and there were no enactments known as the Criminal Acts, thus, the charge was in contravention of the provision of section 151(3) of the Criminal Procedure Act which provided that the written law and the section of the written law against which an offence is alleged to have contravened shall be duly set out in the charge. Consequently, the appellant's appeal was allowed.

Rule Against Ambiguity:

There are some Rules that guide the drafting of Charges or the preparation of Information Sheet. There is the one referred to as Rule Against Ambiguity. It postulates that a charge must be clear enough as to give the defendant adequate notice of the offence with which he is charged. Consequently, the rule attaches itself more particularly on the Count or, each of the Counts contained in the charge sheet or Information. A good charge free from ambiguity will reflect the information or particulars of the offence, in this order:

• The name of the defendant.

• Date of commission of the offence.

• Place of commission of the offence.

• The description of the offence by the name given to the offence by the law creating it where the law defines the offence; or so much of the particulars of the offence as will give the defendant sufficient notice of the charge against him; or person against whom the name of the thing in respect of which the offence was committed.

• The section of the law under which the defendant will be punished and the law itself. Sections 201 and 203(1) ACJL, Kano; sections 147 and 148 ACJL, Lagos; sections 194 and 378 ACJA.

The court in the instant case, held that a charge that is bad for duplicity does not necessarily invalidate the charge or the trial except it has occasioned a miscarriage of justice

What Is Meant by "Offence of A Similar Character"?

In the instant cases, the court held that the law and the facts have been and should be taken into account in deciding whether offences are similar or dissimilar in character.

It is important to know that there must also exist a series of such offences and in this regard, nexus is a feature of similarity which in all circumstances of the case enables the offences to be described as a series. Establishing the similarity is not enough but sufficient nexus should be shown to make them a series.

Rule Against Misjoinder of Offenders:

The rule against misjoinder of offenders forbids joining offenders together in a cause or matter before the court. Thus, generally, only a defendant should be charged in the charge sheet for the offence(s) committed by him. There are however, instances in which it is permissible to join and try more than one defendant together. See Section 151 ACJL, Lagos.

In this subject-matter case of Okojie v. The Police it is shown that there are however, exceptions to this rule. Section 208 ACJA provides that the Rule against Misjoinder will not apply where more persons than one are defendants of the same offence, they may be charged and tried together. See sections 7, 8 and 9 of the Criminal Code for instances in which [more persons than one can be said to have committed the same offence(s).

Where different persons commit different offences in the course of the same transaction, they may be charged and tried together. Circumstances in which persons can be said to have committed different offences in the course of the same transaction occurred in this particular case where some people reached an agreement in Lagos to obtain payment in Bida for fictitious purchases by means of forged vouchers. One of the defendants submitted the first payment voucher in Bida and received a cheque for the amount stated therein.

It was held that all the defendants were properly tried and convicted in Bida. [The court held that all the acts in question should, from the very beginning, be either in contemplation or should form component parts of a whole.]

Bearing in mind the original agreement in Lagos and the elaborate arrangements made for the overt acts which followed at Bida, the conspiracy was hatched and the overt acts were done undoubtedly in the course of the same transaction and it was therefore right and proper to charge and try all the defendants together.

[In considering same transaction, the test must always be, do these acts considered together portray any continuity of purpose?]

In the above case also, the accused persons committed offences in the course of the same transaction. They were jointly charged in the same charge sheet, tried and convicted.

(i) When a person is accused of committing an offence and another of abetting or being accessory to or for attempting to commit such offence, the two of them may be charged together.

(ii) When a person is accused of any offence of theft, criminal misappropriation, criminal breach of trust and another of receiving or retaining or assisting in the disposal or concealment of the subject matter of such offence, they may be charged and tried together.

(iii) Person accused of offence committed during a fight or series of fighting arising out of another fight, and persons accused of abetting any of these offences. S. 215 (f).

Rule Against Misjoinder of Offences:

The general rule is that for every distinct offence with which a person is accused, there must be separate charge contained in a charge sheet, and every such charge must be tried separately. However, there are exceptions to this general rule.

(i) Any three offences committed by the same person within 12 months - notwithstanding the provisions of section 152(2) of the CPA, and the marginal note to that section, the offences referred to do not have to be of the same kind or of similar character. To fall within this exception, it is sufficient that any of three offences were allegedly committed by a person within a period of 12 months.

In this Dau V. Kano Native Authority case, the West African Court of Appeal held that subject to the limitations that the offences must not exceed three in number, and must be committed within a period of 12 months, the offences alleged against the accused person may be dissimilar and may be in respect of the same person or thing or of different persons or things.

(ii) Offences committed in the course of the same transaction. The test to be adopted as to whether the offences were committed in the course of the same transaction is that formulated in the case of Haruna. That is, whether the acts or omissions portray a community of purpose. If there is a proximity of time and place, a continuity of action and a community of purpose or design, then the offences are deemed to be committed in the course of the same transaction.

(iii) Any number of offences whether felonies, misdemeanors or simple offences committed in the course of the same transaction may be contained in a charge sheet and tried together. It is this exception that permits the joining of a non-indictable offence with an indictable one in a charge by way of information, provided the alleged offences were committed in the course of the same transaction. For example, A and B agreed to steal from a bank. Their agreement was executed, and they stole money from the bank. After committing the offence when they were chased by a security van of the bank, B drove their getaway car recklessly and knocked down a pedestrian. The offences of conspiracy to commit a felony, stealing and reckless driving committed by A and B may be contained in the same charge sheet because all the offences were committed in the course of the same transaction. Unlike the exception stated in paragraph (a), there is no time limit nor a limit to the number of offences that can be contained in a charge sheet under this exception.

In the above case, the accused person was tried on an information containing two counts, manslaughter and giving an unlawful injection.

The count of manslaughter was withdrawn and the accused was tried and convicted of the remaining count of the non-indictable offence of giving an unlawful injection. On appeal against conviction, the appellate court held that section 158 of the Criminal Procedure Act enables, in certain circumstances, a count alleging a non-indictable offence to be joined in an information charging an indictable offence.

Thus, the information was held to be valid and the appeal was

dismissed.

(iv) Offences of the same or similar character or part of a series of such offences -- offences of the same kind are identical offences. For example, two offences of stealing are offences of the same kind. Offences are said to be similar if they share or exhibit some common features, such that there is a link or nexus between them either in law or in fact. For example, if the facts are similar or if the evidence for one offence would be admissible to prove the other offence, the offences are in law similar offences, for instance, stealing and robbery. The difference between the former and the latter is that the latter is accompanied by a threat of the use of violence or the actual use of violence. More than one offence of the same or similar character constitute a series of such offences, and such offences can be contained together in a charge sheet.

In the instant case, the offences of attempted stealing and robbery were preferred against the accused person in a charge sheet. The accused was convicted of the two offences. On appeal against conviction on the ground of misjoinder of offences, the English House of Lords held that the offences of attempted stealing and robbery constituted a series of offences because they were two offences. The court further held that the offences are similar in character, therefore they could be joined together in the same charge sheet.

(v) Offences comprising the same elements but constituted under different laws -- offences created under different laws may be contained in the same charge sheet, charged under the different laws. For example, the offence of bigamy is constituted under the Criminal Code and under the Marriage Act. Likewise, the offence of causing death by reckless driving is constituted under the Criminal Code and the Road Traffic Law. Therefore, a charge of such offences could be brought under both laws. For example, A married B under the Marriage Act and he subsequently married C under the Act, while A's marriage to B still subsisted. A has committed the offence of bigamy under section 370 of the Criminal Code Act, and a marriage offence under section 36 of the Marriage Act. These offences can be contained as two distinct offences in the same charge sheet.

However, since the offences arose out of the same set of facts, A can only be convicted on one count if found guilty. This is because to convict on both counts would contravene the constitutional injunction against double jeopardy.

In the case above case, the accused person was arraigned on a charge sheet containing two counts. One count alleged official corruption

contrary to section 98(2) of the Criminal code and the other count alleged corruption of public officers contrary to section 42(2) of the Public Administration Law, 1959. The offences arose out of the same facts. The accused person was convicted on both counts. On appeal against his conviction, the High Court held that it was wrong for the lower court to have convicted the accused on both counts.

The court held that although, both counts could be preferred under different laws constituting the offence by virtue of section 159 of the Criminal Procedure Act, the accused person can only be convicted on one count. Therefore, the conviction on the first count was set aside.

(vi) Offences constituted by different combinations of the acts and omissions constituting the offence -- section 160 of the CPA permits offences founded on different combinations of acts and omissions constituting an offence to be joined together in a charge sheet. For example, an offence may comprise several acts or omissions. An act or omission may constitute an offence, a combination of such acts or omissions may singularly constitute a different offence. Section 160 of the Criminal Procedure Act permits the joining of such diverse offences in the same charge sheet. For example, A borrowed money from B without the intent of repaying the money and A threatened that if B did not lend him the money, he would report B to the Police as an illegal immigrant. A's act of borrowing the money from B with the intent of not repaying it can sustain a charge of stealing under the Criminal Code Act. A combination of A's acts can sustain a charge of demanding property with menaces with intent to steal because A's demand was accompanied by a threat of injury to B. therefore both offences -- stealing and demanding property with menaces, based on the same facts, but constituted by different combinations of A's acts can be contained in the same charge sheet.

(vii) Offences may be charged together or in the alternative, where there is a doubt as to the offence established by the facts which can be prove. For offences to be joined in the same charge sheet under this exception, the draftsman must be certain about the facts that can be proved at the trial. If he is in doubt as to which of several offences is established by the facts which can be proved, he can include in the charge sheet any number of offences, either together, i.e. cumulative, or distinctly, i.e. in the alternative, which he believes may be established by the facts which can be proved. The rationale for adopting this strategy is to ensure that if the facts proved establishes any of the offences charge, a conviction would be sustained for that offence. For example, A offered to sell to B a container of motor spare parts purportedly lying at Tin-can Island, Lagos State. B accepted A's offer and paid some money to A. A never imported any spare parts and is representation to B at the time of making the offer was false. A did not sell spare parts to B and did not return the money B paid to him. In this circumstance, it is certain as to the facts which can be proved, i.e., that A made a false representation to B. The draft man may however, be uncertain as to whether these facts establish the offence of stealing or obtaining property by false pretences against A. In this instance, he can charge both offences in the same charge sheet either together or in the alternative. He would be relying on the same set of facts, and it would be the duty of the trial judge to resolve the doubt, and decide whether on the facts, A can be convicted for stealing or for obtaining property by false pretences or neither of the offences.

In the above case, the accused person was charged with the offence of stealing a postal packet and was acquitted. He was subsequently charged for the offence of negligently losing the same packet. To this latter charge, counsel raised a preliminary objection of autrefois acquit, that having been acquitted of stealing he postal packet, he could not be tried again for negligently losing the same packet

relying on section 161 of the Criminal Procedure Act. The court held that as the facts to be proved in support of the elements or ingredients of each of the offences were not the same or similar, even though the offences arose out of the same facts, the counts could not have been joined in one charge sheet by virtue of the provision of section 161 of the Criminal Procedure Act. That a plea of autrefois acquit could not succeed. Consequently, the appeal was dismissed.

(viii) Offences committed on one of several occasions can be charged together in the alternative, when it is doubtful on which occasion the offence was committed by the facts which can be proved. For example, where A makes two contradictory statements, one before the police, and the other contradictory statement before a court, A may be charged in the alternative for the two statement, although the prosecution cannot prove which of these statements is false. It is the duty of the judge to resolve the conflict and decide which of the statements is false and gave a conviction on that count.

A further statutory qualification to the exception to the rule of misjoinder of offences is stated in 339 of the Criminal Procedure Act CPA which provides thus:

The provisions of sections 151 to 180 shall apply, mutatis mutandis to counts of an information save that no other charge shall be joined with a charge punishable with death and not more than one charge shall be joined with a charge punishable with death shall be charged in the same information.

Therefore, if a case falls within one of the exceptions to the rule against misjoinder of offences, the offence, if it one punishable with death, it cannot be joined in the same charge sheet with a non-capital offence and the charge sheet must not contain more than one capital offence. It is pertinent to know that section 339 of the Criminal Procedure Act (CPA) has been amended in some Southern States, to wit: Lagos, Oyo, Ogun, Cross-Rivers etcetera. In these States, a charge sheet containing a capital offence can also contain a non-capital offence. Moreover, a charge sheet can contain more than one capital offence.

The Court may however, exercise its discretionary powers and order that accusations or charge be brought separately if a case falls within any of the exceptions to the rule against misjoinder of offences. The court may exercise its discretionary powers to order separate trials where it is in the interest of justice so to do when the charge contains too many counts and the accused person will be prejudiced by being tried on one charge sheet.

What Is Meant by "Offence of A Similar Character"?

In the instant cases, the court held that the law and the facts have been and should be taken into account in deciding whether offences are similar or dissimilar in character.

It is important to know that there must also exist a series of such offences and in this regard, nexus is a feature of similarity which in all circumstances of the case enables the offences to be described as a series. Establishing the similarity is not enough but sufficient nexus should be shown to make them a series.

The court in this case held that the Rule of Duplicity will be overlooked in a case where a defendant commits identical offences in a single transaction, e.g. against several persons at the same time, it can be stated in a single count.

Exemption to the Rule of Duplicity is also allowed in situations where offences are defined in the alternative, in which case those offences can be contained alternatively, in a single count. Section 356(2) and 406 C.C. It is also permissible to include in a count all the other acts allegedly done by a defendant as manifestation of his intention to commit treason or treasonable felony. This the court held in the above case.

Another situation in which exemption to the Rule of Duplicity is granted is it is done in adoption or in compliance to the Statutory Forms: See section 146 ACJL, Lagos; sections 193 and 377 ACJA.

Some of the Forms allow for the joining of two offences together i.e. offence of housebreaking, burglary can be joined with that of stealing where a person entered into a dwelling house unlawfully and stole there. (In respect of the Form in Appendix B of the ACJL, Kano as to culpable homicide). This was the decision of the court in the cases cited above.

Another situation in which exemption to the Rule of Duplicity is granted is it is done in adoption or in compliance to the Statutory Forms: See section 146 ACJL, Lagos; sections 193 and 377 ACJA.

Some of the Forms allow for the joining of two offences together i.e. offence of housebreaking, burglary can be joined with that of stealing where a person entered into a dwelling house unlawfully and stole there. (In respect of the Form in Appendix B of the ACJL, Kano as to culpable homicide). This was the decision of the court in the cases cited above.

Exceptions to The Rule of Duplicity:

One of the exceptions to the rule of duplicity has to do with where the Charge relates to general deficiency of money committed at different times over a period of time. The money misappropriated can be summed together and contained in a single count. See section 148 (2) ACJL, Lagos; section 197 ACJA. This, one can do if all the money stolen is owned by one person. This the court held in the above cases.

Exceptions to The Rule of Duplicity:

One of the exceptions to the rule of duplicity has to do with where the Charge relates to general deficiency of money committed at different times over a period of time. The money misappropriated can be summed together and contained in a single count. See section 148 (2) ACJL, Lagos; section 197 ACJA. This, one can do if all the money stolen is owned by one person. This the court held in the above cases.

Exceptions to The Rule of Duplicity:

One of the exceptions to the rule of duplicity has to do with where the Charge relates to general deficiency of money committed at different times over a period of time. The money misappropriated can be summed together and contained in a single count. See section 148 (2) ACJL, Lagos; section 197 ACJA. This, one can do if all the money stolen is owned by one person. This the court held in the above cases.

Rule against Duplicity:

These cases emphasis the meaning and effect of the rule against Duplicity which also more relates to the Counts in the charge, same as in the case of Ambiguity. The rule against duplicity forbids a Count in the Charge containing more than one offence, except in permitted circumstances dictated by a statute. In other words, a defendant must be charged for each of the offences committed by him separately as a Count on the charge or information sheet.

A charge is therefore bad for duplicity if it contains more than one offence as held by the court in the above subject-matter cases set out above. See also section 209 ACJA; section 152 ACJL, Lagos.

Rule against Duplicity:

These cases emphasis the meaning and effect of the rule against Duplicity which also more relates to the Counts in the charge, same as in the case of Ambiguity. The rule against duplicity forbids a Count in the Charge containing more than one offence, except in permitted circumstances dictated by a statute. In other words, a defendant must be charged for each of the offences committed by him separately as a Count on the charge or information sheet.

A charge is therefore bad for duplicity if it contains more than one offence as held by the court in the above subject-matter cases set out above. See also section 209 ACJA; section 152 ACJL, Lagos.

Rule against Duplicity:

These cases emphasis the meaning and effect of the rule against Duplicity which also more relates to the Counts in the charge, same as in the case of Ambiguity. The rule against duplicity forbids a Count in the Charge containing more than one offence, except in permitted circumstances dictated by a statute. In other words, a defendant must be charged for each of the offences committed by him separately as a Count on the charge or information sheet.

A charge is therefore bad for duplicity if it contains more than one offence as held by the court in the above subject-matter cases set out above. See also section 209 ACJA; section 152 ACJL, Lagos.

The Apex Court in the instant case, held that objection to a defective charge should be made immediately after the charge is read over and explained to the defendant because pleading to such a charge is a submission to jurisdiction, if the defect does not deprive the court of its jurisdiction.

Who has the Authority to?

A charge that contravenes any or all of the rules of drafting of

charges may be amended any time before judgment. See Section 155 (1) ACJL, Lagos; Section 216 (1) ACJA. It is noteworthy that the leave of the court is not required to amend a charge if the accused person has not pleaded to it. But where the plea of the accused has been taken, leave of the court would be duly required.

The persons eligible to amend charges are:

• Those who drafted the charge. The law permits the person who drafted the charge to alter the charge upon discovery of any error or in a bid to adding more counts to the existing ones. It is important to note that in the South, the Police or the Law Officer as the case may be, is authorized to charge any person before a court and may therefore amend such charge. If the amendment is after the commencement of the trial, it has to be by the leave of the court. This the court held in the above case.

• The court can also amend a charge upon which a defendant is tried before it. In the North, the Magistrate essentially frames the charge and reserves the right to alter it or frame a new one just as the prosecutor in the South. See sections 129 (10) of the ACJL, Kano. In the South, the court can equally amend the charge at any time before judgment.

It is noteworthy that the amendment of a charge by the court must be sustainable under the imperfect charge. The new charge should merely

continue the life of the original charge. It must bear the same charge number and be against the same defendant(s). It cannot be an independent separate charge, co-existing with the original charge. This was the decision of the court in these case above.

By virtue of the provision of section 164(4) of the Criminal Procedure Act, where a charge is so amended, a note of the order for amendment shall be endorsed on the charge, and the charge shall be treated for the purpose of all proceedings in connection therewith as having been filed in the amended form.

It is noteworthy that the amendment of a charge by the court must be sustainable under the imperfect charge. The new charge should merely continue the life of the original charge. It must bear the same charge

number and be against the same defendant(s). It cannot be an independent separate charge, co-existing with the original charge. This was the decision of the court in these case above.

By virtue of the provision of section 164(4) of the Criminal Procedure Act, where a charge is so amended, a note of the order for amendment shall be endorsed on the charge, and the charge shall be treated for the purpose of all proceedings in connection therewith as having been filed in the amended form.

It is noteworthy that the court should not permit the amendment of a charge if it will cause injustice to the defendant as was held by the court in the instant case.

Failure To Amend A Defective Charge:

The effect or failure on the part of the prosecutor to amend a defective charge depends on the nature of the defect. There are some defects which the law regards as substantial and upon which conviction cannot be grounded.

The appellate court will set aside a conviction based on a charge that is fundamentally defective, except there was amendment before judgment. This the court held in the above cases

Failure To Amend A Defective Charge:

The effect or failure on the part of the prosecutor to amend a defective charge depends on the nature of the defect. There are some defects which the law regards as substantial and upon which conviction cannot be grounded.

The appellate court will set aside a conviction based on a charge that is fundamentally defective, except there was amendment before judgment. This the court held in the above cases

Where the information refers to a repealed enactment and there is no similar offence known to the law, the error would be regarded as

material and fundamental and will undoubtedly mislead the defendant. In such a case, there should be amendment of the charge before judgment. If not, the trial will be vitiated as seen in the above case.

Some defects are however, regarded as minor by the courts. Such defects are incapable of misleading the defendant and failure to amend such charges are usually overlooked by the courts. The law distinguishes between omissions or errors which are trivial and immaterial and will not vitiate a trial, and those which are material and will vitiate a trial. A conviction founded upon a defective charge where the errors and/or omission are inconsequential, trivial and immaterial in nature would stand. This is because the dictate of justice does not permit the acquittal of an otherwise guilty defendant upon fanciful errors contained in the charge. This the court held in the above cases.

Some defects are however, regarded as minor by the courts. Such defects are incapable of misleading the defendant and failure to amend such charges are usually overlooked by the courts. The law distinguishes between omissions or errors which are trivial and immaterial and will not vitiate a trial, and those which are material and will vitiate a trial. A conviction founded upon a defective charge where the errors and/or omission are inconsequential, trivial and immaterial in nature would stand. This is because the dictate of justice does not permit the acquittal of an otherwise guilty defendant upon fanciful errors contained in the charge. This the court held in the above cases.

Some defects are however, regarded as minor by the courts. Such defects are incapable of misleading the defendant and failure to amend such charges are usually overlooked by the courts. The law distinguishes between omissions or errors which are trivial and immaterial and will not vitiate a trial, and those which are material and will vitiate a trial. A conviction founded upon a defective charge where the errors and/or omission are inconsequential, trivial and immaterial in nature would stand. This is because the dictate of justice does not permit the acquittal of an otherwise guilty defendant upon fanciful errors contained in the charge. This the court held in the above cases.

The followings are to be done after a charge has been amended:

(i) The new charge shall be read and explained to the defendant and he shall be asked to plead to the charge. This the court held in the above cases.

See also sections 156 & 157 ACJL, Lagos; sections 217, 218 & 219 ACJA.

The followings are to be done after a charge has been amended:

(i) The new charge shall be read and explained to the defendant and he shall be asked to plead to the charge. This the court held in the above cases.

See also sections 156 & 157 ACJL, Lagos; sections 217, 218 & 219 ACJA.

The followings are to be done after a charge has been amended:

(i) The new charge shall be read and explained to the defendant and he shall be asked to plead to the charge. This the court held in the above cases.

See also sections 156 & 157 ACJL, Lagos; sections 217, 218 & 219 ACJA.

(ii) Where a trial before a Magistrate Court was as a result of the defendant's election to be tried by the Magistrate Court, apart from a fresh plea, his consent should also be sought afresh as to whether he still intends to be tried by the Magistrate Court as was held by the court in the above cases.

(iii) The court shall ask the defendant whether he is ready to be tried on such charge. See section 156 (2) ACJL, Lagos. This provision however, is not contained in the ACJL, Kano.

(iv) Either the defendant or the prosecutor shall be given adjournment or a new trial order if to proceed immediately with the trial shall prejudice the defendant in his defence or the prosecutor in the conduct of his case. See section 218 ACJA; section 156 (2) ACJL, Lagos.

(v) The prosecutor and the defendant shall be allowed to recall or re-summon any witness who may have been examined and examine or cross-examine such with reference to such amendment. See section 157 ACJL, Lagos, section 219 ACJA.

Worthy of note is the fact that where the defendant is not represented by counsel, the court must specifically inform him of his right to call new witnesses or recall witnesses for examination and cross-examination with reference to the amendment, if he desires. If he is represented by counsel, the court is not obliged to inform him of this right. This is because the court is presumed that counsel knows the rules of procedure.

(ii) Where a trial before a Magistrate Court was as a result of the defendant's election to be tried by the Magistrate Court, apart from a fresh plea, his consent should also be sought afresh as to whether he still intends to be tried by the Magistrate Court as was held by the court in the above cases.

(iii) The court shall ask the defendant whether he is ready to be tried on such charge. See section 156 (2) ACJL, Lagos. This provision however, is not contained in the ACJL, Kano.

(iv) Either the defendant or the prosecutor shall be given adjournment or a new trial order if to proceed immediately with the trial shall prejudice the defendant in his defence or the prosecutor in the conduct of his case. See section 218 ACJA; section 156 (2) ACJL, Lagos.

(v) The prosecutor and the defendant shall be allowed to recall or re-summon any witness who may have been examined and examine or cross-examine such with reference to such amendment. See section 157 ACJL, Lagos, section 219 ACJA.

Worthy of note is the fact that where the defendant is not represented by counsel, the court must specifically inform him of his right to call new witnesses or recall witnesses for examination and cross-examination with reference to the amendment, if he desires. If he is represented by counsel, the court is not obliged to inform him of this right. This is because the court is presumed that counsel knows the rules of procedure.

In this case, the name of the accused person was omitted from an information which charged him with several other persons. The information was amended by inserting his name. After the amendment, a fresh plea was taken. The court did not inform the accused who was represented at the trial by counsel of his right to recall witnesses for examination and cross-examination after the amendment. The accused was subsequently convicted. On appeal against his conviction on the basis that the court failed to inform the accused of his right to recall witnesses for examination and cross-examination after amendment, the appellate court held that counsel is aware of the rights of the person whom he represented and that if he so desired, he could make an application to recall and cross-examine any witness he deems proper. Thus, the appeal was dismissed.

In this case, the accused person was charged with stealing his employer's money contrary to section 390 of the Criminal Code. The magistrate suo motu amended the charge to read section 390(6) of the Criminal Code. The accused was not represented by counsel and the magistrate did not inform him of his right to recall witness for examination and call fresh witnesses in respect of the amendment. The accused was convicted. On appeal against conviction, the appellate court held that the magistrate ought to have informed the accused person of his right to recall witnesses since he was not represented by counsel. The appellate court stated that failure to do so vitiated the trial. Thus, the appellant's appeal was allowed and the conviction set aside.

In the instant case, the charge against the accused person was amended and the accused asked for an adjournment in order to brief his counsel. At the resumed hearing, the accused person appeared without his counsel. Trial proceeded and he was convicted. On appeal against his conviction, it was contended, inter alia, that the magistrate erred in law in failing to inform the appellant of his right under section 165 of the Criminal Procedure Act to recall witnesses for cross-examination and call fresh witnesses if he so desires. Therefore, the appellant's appeal was allowed.

In the case at hand, the prosecutor stated that the accused person unlawfully killed the deceased instead of preferring a charge of murder against the accused. The charge was amended to read that the accused murdered the deceased. A fresh plea was not taken from the accused. The accused counsel applied to recall witnesses but his application was rejected. The court convicted the accused. He appealed against his conviction. The Supreme Court in allowing the appellant's appeal and making an order for retrial, stated that the rejection of appellant's counsel's application to recall witnesses for cross-examination after the amendment of the charge was in breach of section 165 of the Criminal Procedure Act (CPA)

In the case above, the accused person was charged with attempting to corrupt a judicial officer contrary to section 114(2) of the Criminal Code. After the accused had pleaded to the charge, the prosecutor realized that section 114(2) had been repealed in Lagos State. He sought and obtained leave of the court to delete ection 114(2) Criminal Code and substituted section 98A(1) (a) of the Criminal Code Laws of Lagos State. The accused pleaded afresh to the amended charge. He was asked if he wanted to recall any of the witnesses, but he declined at that stage. At the resumed hearing, his counsel applied to recall one of the witnesses. The application of counsel was refused as the trial magistrate held that it was too late to apply to recall a witness. The accused was convicted.

On appeal against conviction, it was submitted that the refusal to allow the appellant to recall a witness as provided under section 165 of the CPA vitiated the trial. The Supreme Court unanimously rejected counsel's contention. The Apex Court stated that the amendment did not affect the substance of the charge against the appellant. The court held that failure to allow a witness to be recalled for further cross-examination on the amendment relating solely to substitution of one section of the Criminal Code for another could not possibly lead to a miscarriage of justice. Thus, the appeal was dismissed.

By virtue of the provision of sections 163 and 164 of the Criminal Procedure Act and section 208 of the Criminal Procedure Code, failure to comply with the statutory requirements after the amendment of a charge renders the trial null, void and of no effect. The appellate court, on appeal against conviction, will set the conviction aside.

Noteworthy is the fact that the failure to comply with the procedure laid down in sections 164 and 165 of the Criminal Procedure Act and sections 209, 210 and 211 of the Criminal Procedure Code may amount to only an irregularity which may or may not vitiate the proceedings depending on how it is seen to have had fundamental effect or not. If the irregularity occasioned a miscarriage of justice in respect of the accused person, same shall be considered fundamental and capable of nullifying the entire proceedings.

However, where there are sufficient or overwhelming evidence against the accused person at the trial, the appellate court may order a retrial.

In this case, the accused person appealed against his conviction on the ground that after an amendment, the provisions of section 165 of the Criminal Procedure Act were not duly complied with. His appeal was dismissed on the premise that failure to comply with the statutory procedure did not occasion a miscarriage of justice in respect of the appellant. The Apex Court, per Irikefe, JSC, stated that while the provisions of sections 164 and 165 of the Criminal Procedure Act are meant to afford an accused person adequate safeguards in the event of an amendment under sections 162 and 163 of the CPA, the sections should not provide such an accused person with a gratuitous escape route to freedom where there are sufficient and/or overwhelming evidence against him.

Bail by the Police:

Going by the provisions of Section 35 (4) & (5) of the 1999 Constitution (as amended), the Police cannot, except in capital or other serious offences, detain a person beyond 48 hours in any case.

In recognition of this constitutional provision, Sections 168 ACJL Kano; 17 ACJL Lagos; 30 & 31 ACJA and 27 Police Act empowers the police to grant bail to arrested persons where it is impossible or impracticable to bring them before a court within a reasonable time as required by the constitution. This was the decision of the court in the above case.

Although, there is no statutory provision as to the procedure for applying for bail in the Police Station, it is usually in writing and signed by the suspect or his lawyer or a surety. It may be with or without bond. Bail is free, though, in practice it is not unusual for counsel or the suspect to give administrative fees. As soon as the suspect is charged to court, the olice bail lapses and another application has to be made by the defendant if unrepresented or his counsel, immediately after arraignment before the court which may be oral or in writing as the court may direct.

Where there is more than one suspect detained at the Police Station and they are represented by the same counsel, a single application by their counsel listing their names and names of their sureties suffices. It is to be noted that the bail granted by the police while investigations are continuing into the allegation against the accused person is to enable him to secure his release on condition that he returns to the police station at the time specified in the bond. If a suspect remains in police custody after bail has been granted to him by the police for his inability to fulfil the conditions of bail, his continued detention in police custody is not in contravention of the constitutional provisions. This is because, the suspect is duty bound to comply with the bail conditions.

Bail - Principles Governing:

In the above case, the court held that bail should not be denied and/refused a defendant as a form of punishment. Okadigbo J stated that:

It has been well established that bail is not to be withheld merely as a punishment, and furthermore, that the requirements as to bail are primarily to secure the attendance of the accused person at the trial.

In the above case, Oguntade JCA stated that:

Whether to grant and/or refuse bail to a defendant, the criminal record of the accused and the likelihood of the repetition of the offence should be considered.

In this case, bail was refused to the accused person because he committed the offence for which he was arraigned while he was on bail for another offence.

In this case, bail was refused to the accused person because the accused offered a bribe to the police officer in order to retrieve evidence of commission of the offence in the custody of the police. Under the Criminal Procedure Code, the factors to be taken into consideration in deciding whether to grant or withhold bail are expressly stated in section 341(2), which provides that a court may release a person on bail, if it considers that:

By reason of granting bail, the proper investigation of the offence would not be prejudiced.

No serious risk of the accused person escaping from justice would be occasioned.

No grounds exist for believing that the accused, if released, would commit an offence.

In this case, the accused person was charged before a Magistrates' Court with the offence of theft. He made an oral application for bail, and stated on oath that he would co-operate with the police. He said that he would not commit any further offence if admitted to bail, and that he would provide surety for his bail. The prosecution opposed the application, and the magistrate refused to grant him bail. He made an application to the High Court to be admitted to bail. The High Court held that the offence committed by the accused person was billable at the discretion of the magistrate, offence being punishable with five years' imprisonment, that is, offence punishable with imprisonment for a period exceeding three years. The magistrate must exercise his discretion in favour of the accused if the accused satisfies the conditions in section 341(2) of the Criminal Procedure Code.

The High Court in granting the applicant's application, stated that the conditions for granting bail were satisfied by the applicant because they were stated on oath before the magistrate. They were also repeated in the applicant's affidavit supporting his application for bail in the High Court, and since the prosecution did not file a counter affidavit, they were deemed uncontroverted. The appellate court furthermore observed that the courts should adopt a liberal approach in considering applications for bail in order not to frustrate the spirit of the constitution.

Detention of an arrested Person Beyond 48 Hours:*

It is now provided under section 264 (1) ACJL, Lagos 2011 that any person arrested for any offence triable on Information shall within a Nreasonable time of the arrest be brought before the Magistrate Court for remand which the Magistrate have power to make a remand order after examining the reasons for the arrest as stated in the request form filed by the police. If the Magistrate is satisfied on the reason (s) as stated may make an order of remand pending the legal advice of the Director of Public Prosecutions or the arraignment of such person before the appropriate court. In the above proceedings, the suspect is brought before the court based on a formal application filed before the court requesting for remand, contrary to what obtains under the holding charge regime. The suspect is not brought before the court for arraignment, therefore his plea will not be taken since the court lacks jurisdiction.

The Supreme Court in the above case, held that the remand procedure is legal whilst interpreting section 236(3) of the old CPL Lagos 1994 Cap 32 Vol. 2, Laws of Lagos State.

In the exercise of the above power, what constitutes probable cause is as contained in section 264 (2) ACJL, Lagos and the Magistrate is also empowered to grant bail where necessary depending on the circumstances of the case. See s. 264 (5) ACJL Lagos, s. 169(2) ACJL, Kano. The maximum period which the Magistrate may remand the suspect is sixty (60) days which may be extended only on good cause shown that necessary steps have been taken to arraign the person before an appropriate court or tribunal. See s. 264 (6) & (8) ACJL, Lagos. ACJA 2015 contains an equivalent provision in sections 294 to 298 which is impari materia with the provisions of the Lagos State Law except that the maximum period of detention under the ACJA is forty-two (42) days. The position of these enactments appears to be in tandem with section 35 (1) proviso of 1999 Constitution (as amended) and section 35 (4) & (5) of the same constitution.

Bail by Court Pending Trial:

Once the defendant has been taken to court, application for his bail is usually made to a magistrate or the judge. Granting of bail by the court depends on whether the offence is a simple offence, misdemeanor or a felony.

It is important to know that bail is usually refused in respect of a capital offence except in special circumstances, as held in the above case. See also section 171(3) ACJL Kano, and section 161(1) & (2) ACJA.

Under the various Criminal Procedural Laws of Nigeria, a Magistrate cannot grant bail in respect of a capital offence as seen in the above authority. See also section 115 ACJL 2011 and section 161(1) ACJA 2015.

In the above cases, the court held that where the offence committed by the defendant is a felony other than a capital offence, the Magistrate or the Judge may grant such a defendant bail. The Magistrate has a discretion to either grant or refuse bail in such cases.

Where however, the offence is not a felony, the court shall grant bail. See section 173 ACJL Kano, section 115 (3) ACJL Lagos and section 163 ACJA.

In the above cases, the court held that where the offence committed by the defendant is a felony other than a capital offence, the Magistrate or the Judge may grant such a defendant bail. The Magistrate has a discretion to either grant or refuse bail in such cases.

Where however, the offence is not a felony, the court shall grant bail. See section 173 ACJL Kano, section 115 (3) ACJL Lagos and section 163 ACJA.

In the above cases, the court held that where the offence committed by the defendant is a felony other than a capital offence, the Magistrate or the Judge may grant such a defendant bail. The Magistrate has a discretion to either grant or refuse bail in such cases.

Where however, the offence is not a felony, the court shall grant bail. See section 173 ACJL Kano, section 115 (3) ACJL Lagos and section 163 ACJA.

Factors to Consider When Deciding the Issue of Bail:

The factors to put into consideration when the issue of bail is being decided is the critical one of:

Whether the defendant will appear to stand for his trial (whether or not he will jump bail). This the court held in the above case.

If there is likelihood that the defendant will commit any offence while on bail, the court would not grant the application. This is the decision of the court in the instant case.

Another factor that may be critical is the Criminal record of the defendant. Where his criminal record show that he has been in and out of trouble or jail severally, bail may be refused as it would be reasonable to fear that he would commit another offence while out of bail and while yet facing trial. This is the decision of the court in this particular case.

The nature of the offence and the severity of the punishment prescribed, as was decided by the court in the above cases, are important factors to consider. It is well known that these are quite material in the consideration of an application for bail - whether the offence is a capital offence or not; one with life imprisonment or it is some minor misdemeanor.

Of course, this is from the reasoning that the greater or more severe the punishment the more desperate to escape the punishment an accused person is likely to be

The nature of the offence and the severity of the punishment prescribed, as was decided by the court in the above cases, are important factors to consider. It is well known that these are quite material in the consideration of an application for bail - whether the offence is a capital offence or not; one with life imprisonment or it is some minor misdemeanor.

Of course, this is from the reasoning that the greater or more severe the punishment the more desperate to escape the punishment an accused person is likely to be

The character of the evidence against the defendant will also be a factor to be considered. A vile and violet character, one through whom the evidence already set before the court shows to be a jail bird, has little chance of being granted bail when charged for violent offence, or one defrauding people. It is supposed that if granted bail he might commit another offence or other offences. This issues weighed in the mind of the court when reach their decisions in these case.

The character of the evidence against the defendant will also be a factor to be considered. A vile and violet character, one through whom the evidence already set before the court shows to be a jail bird, has little chance of being granted bail when charged for violent offence, or one defrauding people. It is supposed that if granted bail he might commit another offence or other offences. This issues weighed in the mind of the court when reach their decisions in these case.

The courts took cognizance of the prevalence of the type of offences in the society at the time the Defendants in these subject-matter cases were charged to court. The need to discourage or deter people from committing such offences. This issue of prevalence of the particular crime guided the courts in these case in reaching their decision and ruing on the application for bail.

The courts took cognizance of the prevalence of the type of offences in the society at the time the Defendants in these subject-matter cases were charged to court. The need to discourage or deter people from committing such offences. This issue of prevalence of the particular crime guided the courts in these case in reaching their decision and ruing on the application for bail.

The courts took cognizance of the prevalence of the type of offences in the society at the time the Defendants in these subject-matter cases were charged to court. The need to discourage or deter people from committing such offences. This issue of prevalence of the particular crime guided the courts in these case in reaching their decision and ruing on the application for bail.

The possibility of the defendant interfering with further investigation and the prosecution of the case. Where this possibility looms large enough the court would not grant the bail application. That, exactly is what determined and shaped the decision of the court in this case.

The possibility of the defendant interfering with further investigation and the prosecution of the case. Where this possibility looms large enough the court would not grant the bail application. That, exactly is what determined and shaped the decision of the court in this case.

The possibility of the defendant interfering with further investigation and the prosecution of the case. Where this possibility looms large enough the court would not grant the bail application. That, exactly is what determined and shaped the decision of the court in this case.

Other factors that are capable of influencing the decision of the court in an application for bail could actually be the safety of the accused person. It does happen, in such offences as manslaughter, arson, armed robbery, etc. that it may be in the best interest of the accused to be kept in police custody because, the enraged relations or victims of the offence, may want to take the laws into their own hands by lynching the defendant if he is released on bail and allowed to go home.

In such situations, the court may, in the interest of the defendant, refuse to grant the bail application to allow him go. Such matter of detention for the protection of the defendant was held by the court in the above cases to be in order.

The issue of whether if it is found that the defendant had attempted to conceal or destroy evidence, and whether the likelihood that he might continue in pursuit of that objective if released on bail, was also considered and ruled to be reason enough to refuse the application for bail. See section 162(d) ACJA.

Other factors that are capable of influencing the decision of the court in an application for bail could actually be the safety of the accused person. It does happen, in such offences as manslaughter, arson, armed robbery, etc. that it may be in the best interest of the accused to be kept in police custody because, the enraged relations or victims of the offence, may want to take the laws into their own hands by lynching the defendant if he is released on bail and allowed to go home.

In such situations, the court may, in the interest of the defendant, refuse to grant the bail application to allow him go. Such matter of detention for the protection of the defendant was held by the court in the above cases to be in order.

The issue of whether if it is found that the defendant had attempted to conceal or destroy evidence, and whether the likelihood that he might continue in pursuit of that objective if released on bail, was also considered and ruled to be reason enough to refuse the application for bail. See section 162(d) ACJA.

The health condition of the defendant is another factor that the court will hardly ignore. The health conditions of the accused persons in these subject-matter cases persuaded the courts to grant their bail applications.

It is important that we mention that there are some particular requirements that must back application for bail on health ground, if same must succeed. These must be clearly stated and form part of the contents of the Affidavit in support of the application.

The affidavit in support of bail application on health grounds must show the following as was emphasized in the above subject-matter case:

(i) That the ill-health is likely to affect other inmates where the applicant is detained. Consider whether the application may be granted where the illness is not contagious.

(ii) That there is a positive and cogent medical report issued by an expert pointing irresistibly to the existence of the illness (preferably a Government hospital. S.161 (2) ACJA).

(iii) That the Prison lacks adequate medical facilities to treat the applicant's ailment.

The health condition of the defendant is another factor that the court will hardly ignore. The health conditions of the accused persons in these subject-matter cases persuaded the courts to grant their bail applications.

It is important that we mention that there are some particular requirements that must back application for bail on health ground, if same must succeed. These must be clearly stated and form part of the contents of the Affidavit in support of the application.

The affidavit in support of bail application on health grounds must show the following as was emphasized in the above subject-matter case:

(i) That the ill-health is likely to affect other inmates where the applicant is detained. Consider whether the application may be granted where the illness is not contagious.

(ii) That there is a positive and cogent medical report issued by an expert pointing irresistibly to the existence of the illness (preferably a Government hospital. S.161 (2) ACJA).

(iii) That the Prison lacks adequate medical facilities to treat the applicant's ailment.

The health condition of the defendant is another factor that the court will hardly ignore. The health conditions of the accused persons in these subject-matter cases persuaded the courts to grant their bail applications.

It is important that we mention that there are some particular requirements that must back application for bail on health ground, if same must succeed. These must be clearly stated and form part of the contents of the Affidavit in support of the application.

The affidavit in support of bail application on health grounds must show the following as was emphasized in the above subject-matter case:

(i) That the ill-health is likely to affect other inmates where the applicant is detained. Consider whether the application may be granted where the illness is not contagious.

(ii) That there is a positive and cogent medical report issued by an expert pointing irresistibly to the existence of the illness (preferably a Government hospital. S.161 (2) ACJA).

(iii) That the Prison lacks adequate medical facilities to treat the applicant's ailment.

The health condition of the defendant is another factor that the court will hardly ignore. The health conditions of the accused persons in these subject-matter cases persuaded the courts to grant their bail applications.

It is important that we mention that there are some particular requirements that must back application for bail on health ground, if same must succeed. These must be clearly stated and form part of the contents of the Affidavit in support of the application.

The affidavit in support of bail application on health grounds must show the following as was emphasized in the above subject-matter case:

(i) That the ill-health is likely to affect other inmates where the applicant is detained. Consider whether the application may be granted where the illness is not contagious.

(ii) That there is a positive and cogent medical report issued by an expert pointing irresistibly to the existence of the illness (preferably a Government hospital. S.161 (2) ACJA).

(iii) That the Prison lacks adequate medical facilities to treat the applicant's ailment.

In the above case, the court held that bail should not be denied and/refused a defendant as a form of punishment, especially over a matter.

It is a Constitutional provision that the defendant is to be presumed innocent until his guilty is proved. This particular provision of the law makes it that a defendant in a criminal charge ought not to be treated in a too harsh a manner as one already convicted and to be punished. See also section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended)

The defendant is only required to enter into recognizance in the sum fixed by the court. It is not a requirement of the law that he should deposit money before bail is granted. This was the decision of the court in the above cases.

In granting bail, the amount of bail to be taken in any case shall be fixed with due regard to the circumstances of the case, status of the defendant and shall not be excessive. See section 175(1) ACJL Kano, section 116 (1) ACJL Lagos and section 165 (1) ACJA. Thus, where the sum is excessive, application may be made to a higher court for the review of the conditions of the bail. See S.178 ACJL Kano.

Under section 162 of the ACJA 2015, the factors the court will consider to decide whether or not to grant bail in relation to offences of felony other than felonies punishable with death has been codified.

The defendant is only required to enter into recognizance in the sum fixed by the court. It is not a requirement of the law that he should deposit money before bail is granted. This was the decision of the court in the above cases.

In granting bail, the amount of bail to be taken in any case shall be fixed with due regard to the circumstances of the case, status of the defendant and shall not be excessive. See section 175(1) ACJL Kano, section 116 (1) ACJL Lagos and section 165 (1) ACJA. Thus, where the sum is excessive, application may be made to a higher court for the review of the conditions of the bail. See S.178 ACJL Kano.

Under section 162 of the ACJA 2015, the factors the court will consider to decide whether or not to grant bail in relation to offences of felony other than felonies punishable with death has been codified.

Where a Magistrates' Court refuses to grant bail:

In this case, it was held by the court that where a magistrate to whom application for bail has been made refused or neglected to grant bail,

application could be made to a Judge of High Court who shall have power to grant such bail if the application is reconsidered and found meritorious. See also section 119 ACJL Lagos.

In the instant cases, it was held by the court that where a court has refused to grant bail, application for bail should be filed at a

higher court, not in any court of the same co-ordinate jurisdiction.

It is important to know that it is not necessary that the application brought by the accused person in the lower court for bail be considered. It is sufficient if the lower court refused, failed or neglected to consider the application. In such circumstances, the accused person can apply to the high court for bail without breaching the normal convention and practice

In the instant cases, it was held by the court that where a court has refused to grant bail, application for bail should be filed at a higher court, not in any court of the same co-ordinate jurisdiction.

It is important to know that it is not necessary that the application brought by the accused person in the lower court for bail be

considered. It is sufficient if the lower court refused, failed or neglected to consider the application. In such circumstances, the accused person can apply to the high court for bail without breaching the normal convention and practice

In the instant cases, it was held by the court that where a court has refused to grant bail, application for bail should be filed at a higher court, not in any court of the same co-ordinate jurisdiction.

It is important to know that it is not necessary that the application brought by the accused person in the lower court for bail be

considered. It is sufficient if the lower court refused, failed or neglected to consider the application. In such circumstances, the accused person can apply to the high court for bail without breaching the normal convention and practice

In this case, the accused persons were charged with offences involving assault to police officers and court officials. Their oral application for bail was opposed by the prosecution. The magistrate ruled that the accused persons should make formal application for bail which would allow a full examination on the merits. The accused persons brought an application for bail to the High Court. The respondent objected to the application on the ground that the applicant had not been refused bail by the Magistrates' Court before applying to the High Court.

The court held that the only condition precedent to bringing an application was that the accused must have applied for bail before the lower court, and that the lower court had refused, failed and/or neglected to grant the bail. The court therefore, ruled that the applicant having applied for bail in the lower court, the High Court had jurisdiction to entertain the application.

Again, there is no provision in the Criminal Procedure or Administration of Criminal Justice Laws of the Northern States specifically regarding the procedure of bail application after its refusal by the lower court. Section 35 of the *High Court Laws of Northern Nigeria 1963 application of foreign rules and procedures are specifically excluded in criminal matters. The common procedure which has been adopted in Kano and other Northern States is to make such bail application by motion on notice, supported by affidavit. The affidavit must equally evidence the certified true copies of the charge sheet and certified true copies of the Ruling of the lower court refusing the bail application as was held in the above case.

The court in the instant case, however, held that bail could be by summons supported by affidavit.

The Federal Capital Territory is in the North but enjoys a peculiar position because its legislative chamber is the National Assembly of the Federal Republic of Nigeria. The Criminal Procedural Law applicable in the Federal Capital Territory, Abuja which governs criminal proceedings in the courts is the ACJA.

The Act is silent as to the procedure and manner of bail application to the High Court after its refusal by the Magistrate's Court. Like Lagos, section 492 (3) ACJA enjoins the court to adopt such procedure as will in its view meet the justice of the case. The implication is that the court is at liberty to adopt any procedure that will meet the justice of the case which could be that an application could be brought by way of summons or motion on notice. In practice however, it appears that the courts in the Federal Capital Territory prefers applications being brought by motion on notice.

The trend of cases supports the proposition that the court will not punish a person for not strictly complying with procedural rules. If a person has a right, it does not really matter how he enforces it. The court will look into the justice of the case since rules of procedure cannot override the rule of substantive justice as was decided by the court in this instant cases.

This means that the effect of non-compliance with any particular procedure is almost zero - the courts care only for the justice in the particular case according its circumstances.

The Federal Capital Territory is in the North but enjoys a peculiar position because its legislative chamber is the National Assembly of the Federal Republic of Nigeria. The Criminal Procedural Law applicable in the Federal Capital Territory, Abuja which governs criminal proceedings in the courts is the ACJA.

The Act is silent as to the procedure and manner of bail application to the High Court after its refusal by the Magistrate's Court. Like Lagos, section 492 (3) ACJA enjoins the court to adopt such procedure as will in its view meet the justice of the case. The implication is that the court is at liberty to adopt any procedure that will meet the justice of the case which could be that an application could be brought by way of summons or motion on notice. In practice however, it appears that the courts in the Federal Capital Territory prefers applications being brought by motion on notice.

The trend of cases supports the proposition that the court will not punish a person for not strictly complying with procedural rules. If a person has a right, it does not really matter how he enforces it. The court will look into the justice of the case since rules of procedure cannot override the rule of substantive justice as was decided by the court in this instant cases.

This means that the effect of non-compliance with any particular procedure is almost zero - the courts care only for the justice in the particular case according its circumstances.

Bail Pending Appeal:

Once a defendant is convicted, he is no longer presumed innocent. He becomes a prisoner. Although, he may apply for bail pending the hearing of his appeal. Such a bail is usually rarely granted. The appellate court may, if it thinks fit, on the application of the appellant's appeal, admit the appellant to bail pending the determination of his appeal. The court has absolute discretion as to whether or not to admit the appellant to bail. The court only grants bail upon special circumstances being shown by the prisoner.

In this case what constitutes special circumstances was considered, and the court held that one of those circumstances is where the applicant will be of assistance for the preparation of the real case for appeal or that the real case is so complex that there is obvious need for close consultation between the applicant and his legal practitioner.

One other factor that can weigh in heavily when considering application for bail pending appeal is where to refuse the application will put the applicant's health in serious jeopardy. E.g. a hypertensive patient who needs constant medical attention and who cannot be attended to in custody. This factor is what swayed the Court to grant the convicted defendant bail pending the outcome of his appeal.

One other factor that can weigh in heavily when considering application for bail pending appeal is where to refuse the application will put the applicant's health in serious jeopardy. E.g. a hypertensive patient who needs constant medical attention and who cannot be attended to in custody. This factor is what swayed the Court to grant the convicted defendant bail pending the outcome of his appeal.

Another circumstance that will be helpful to the bail application of a convicted defendant who applies for bail pending the determination of his bail application is where his sentence by the trial court is manifestly contestable, making it that refusal of his bail application in such circumstances could inflict a greater injury on the applicant who may well have served an illegal sentence. This was held by the court in the instant case.

The court would also consider the length of time which must elapse before the appeal can be heard and the length of sentence period being appealed against. In a situation where the defendant may have served the sentence before his appeal can be heard, his bail application may be granted. This was the decision of the court in this instant cases.

The court would also consider the length of time which must elapse before the appeal can be heard and the length of sentence period being appealed against. In a situation where the defendant may have served the sentence before his appeal can be heard, his bail application may be granted. This was the decision of the court in this instant cases.

The court would also consider the length of time which must elapse before the appeal can be heard and the length of sentence period being appealed against. In a situation where the defendant may have served the sentence before his appeal can be heard, his bail application may be granted. This was the decision of the court in this instant cases.

The court would also consider the length of time which must elapse before the appeal can be heard and the length of sentence period being appealed against. In a situation where the defendant may have served the sentence before his appeal can be heard, his bail application may be granted. This was the decision of the court in this instant cases.

One other factor that the courts would consider in reaching their decision on the matter of application for bail pending appeal is the one of what the Applicant's behavior was like when bail was granted to him during trial of the case. If he behaved responsibly at that time, it will be reasonable to believe that he would also act responsibly and keep to the terms of his bail. Where the case was otherwise, his application for bail pending appeal would be very likely refused.

One other factor that the courts would consider in reaching their decision on the matter of application for bail pending appeal is the one of what the Applicant's behavior was like when bail was granted to him during trial of the case. If he behaved responsibly at that time, it will be reasonable to believe that he would also act responsibly and keep to the terms of his bail. Where the case was otherwise, his application for bail pending appeal would be very likely refused.

The courts do take into cognizance whether or not the Defendant/Applicant for bail pending the outcome of his appeal is a first time offender or a 'a regular customer'. The treatment of an application for bail pending appeal is most likely to be much more favourable and relaxed where the convicted applicant is a First Time Offender. The case is likely to be a lot different where the applicant is one jail bird who has been in and out of jail or the court for criminal charges.

The court is a place where rules and procedures play prominent role in getting things done. Application for bail pending appeal is not exempted. In the instant case, the court held that the application for bail pending appeal should be done by Motion on Notice supported with an Affidavit that states the reason or reasons why granting the application would present a case of high justice than refusing it.

Where two or more defendants are jointly tried and convicted, even where they are represented by the same counsel, it is important that separate motion paper and affidavit be filed for each of the applicants. This was the decision of the court in this case above.

Where however, the counsel elects to file one motion paper for two or more applicants, the applicants must depose to **separate affidavits.

It was decided in this case that where the surety surrenders the accused and applies to be discharged, the court will usually oblige and discharge him. The defendant will be detained until he gets another surety. ACJA; S.134; S.129 ACJL Lagos.

Other issues relating to the matter of revocation of bail were also discussed, and set out below is a summary of the section on bail revocation:

Of course, once the beneficiary of a bail keeps to the term and conditions of the bail, such exercise of discretion will not be revoked. Bail granted to a beneficiary may however, be revoked in the following instances:

(i) Assuming the applicant was granted bail by the Police, such bail is automatically revoked upon the arraignment of the suspect in court, or otherwise revoked by the police if the conditions have been breached.

(ii) If the bail was granted by the Court pending trial, such bail remains until the determination of the case against the defendant by the court or the bail is revoked by the court for breach of the conditions.

(iii) Where the bail was granted by an appellate court pending appeal, it remains in force until the determination of the appeal before it becomes automatically revoked.

(iv) Where the defendant who is on police bail commits another offence for which the police cannot grant bail. Upon being informed of this development by a superior police officer, the Magistrate shall issue a warrant for the apprehension of the offender. See S. 127 (1) ACJL Lagos.

(v) Where the defendant deliberately fails to keep to the terms and conditions of the bail after being released on bail. In such scenario, bench warrant may be issued for his arrest. Section 184 ACJA 2015. Also the bail bond will be forfeited.

In the case above, the appellant was surety to an accused person. When the accused failed to stand his trial, the recognizance of the appellant was forfeited. On appeal against forfeiture of the recognizance, the appellate court held that the lower court erred in law in forfeiting the recognizance without exhibiting the recognizance entered into by the appellant. The appellate court also stated that the bond must be exhibited before the appellate court to enable the court decide whether the lower court rightly forfeited the bond. The appellate court further stated that before a recognizance can be forfeited, it must be exhibited before the court. Thus, the appeal was allowed, and the order of forfeiture was set aside.

In this case, the appellant stood surety in the sum of N1,000 for an accused person. The accused failed to appear on the date of the trial. The appellant was asked to produce the accused. When he failed so to do, the trial court declared the bond forfeited. On appeal against the forfeiture of the bond, the appellate court held that the trial court erred in forfeiting the bail bond without exhibiting the bond executed by the appellant. The appellate court stated that where the bond is not exhibited, it cannot be determined by trial court whether its terms have been breached. Furthermore, the bail bond should be part of the record of appeal where there has been an appeal against a forfeiture order. This is to enable the appellate court to determine the correctness or otherwise of the order. The appeal was allowed.

In the above case, the appellant stood surety for an accused person who absconded. The lower court forfeited the bail bond. On appeal against the order of forfeiture of the bail bond, the appellate court, in allowing the appeal and ordering that the order of forfeiture be set aside, held that the lower court acted prematurely in forfeiting the bail bond without proof of the order of bail and of the appellant's recognizance, and without giving the appellant an opportunity of being heard.

In the instant case also, the trial court declared a bail-bond forfeited and ordered the appellant to pay N1,000 or go to prison for six months. On appeal against the order of the trial court, the appellate court observed that a surety can only be ordered to be imprisoned if all the avenues available for the recovery of the fine have been exhausted without meeting the sum stated in the bond. It is only then that the surety can be ordered to be imprisoned in default of paying the outstanding sum.

Conviction for lesser offence:

The court in the instant cases, held that where however, a defendant is charged for an offence, he may be convicted of a lesser offence where the facts proved cannot earn him a conviction on the offence charged. He needs not be informed of the lesser offence. He is deemed to have had notice of it because he had notice of the greater offence for which he was charged.

Conviction for lesser offence:

The court in the instant cases, held that where however, a defendant is charged for an offence, he may be convicted of a lesser offence where the facts proved cannot earn him a conviction on the offence charged. He needs not be informed of the lesser offence. He is deemed to have had notice of it because he had notice of the greater offence for which he was charged.

Conviction for lesser offence:

The court in the instant cases, held that where however, a defendant is charged for an offence, he may be convicted of a lesser offence where the facts proved cannot earn him a conviction on the offence charged. He needs not be informed of the lesser offence. He is deemed to have had notice of it because he had notice of the greater offence for which he was charged.

Right to fair hearing:

The accused or defendant has a right to fair hearing as enshrined in section 36(4) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). This right is better explained in the two traditional maxim:

(a) Audi alteram partem (The other party must be heard) as seen in the above case.

Duty expected of the court in the hearing and adjudication of a matter brought before it.

(b) Nemo judex in causa sua (A person shall not be a judge in his own case); in which case, there must be freedom from bias as seen in the case above.

In determining whether or not there is likelihood of bias, it has been laid down that the test is that of a right thinking member of the society. If the circumstances are such that a right thinking member will go away saying that the judge is biased then he should not sit, if he does, the decision cannot be upheld although in fact, he is not biased.

Right to fair hearing:

The accused or defendant has a right to fair hearing as enshrined in section 36(4) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). This right is better explained in the two traditional maxim:

(a) Audi alteram partem (The other party must be heard) as seen in the above case.

Duty expected of the court in the hearing and adjudication of a matter brought before it.

(b) Nemo judex in causa sua (A person shall not be a judge in his own case); in which case, there must be freedom from bias as seen in the case above.

In determining whether or not there is likelihood of bias, it has been laid down that the test is that of a right thinking member of the society. If the circumstances are such that a right thinking member will go away saying that the judge is biased then he should not sit, if he does, the decision cannot be upheld although in fact, he is not biased.

Presumption of innocence:

The defendant is always presumed innocent until his guilt is proved beyond reasonable doubt by the prosecution. See section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria. There are however, exceptions to this general rule under section 139(3) (c) of the Evidence Act in respect of insanity or facts within the knowledge of the accused person. For the implications of not giving effect to this presumption by the court, the above cases buttressed this principle.

Time to prepare for trial:

The defendant must be given adequate time and facilities to prepare for his defences. Section 36(6) (b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). It is noteworthy that once counsel has accepted brief from an accused person, he must be present in court during the whole of the trial of the case. That is to say: from the trial to the sentence. If, for some cogent and compelling reasons, counsel is not able to attend court, he must arrange with another counsel to hold his brief, or the court should grant an adjournment to enable counsel appear for the defendant/accused or call a witness that would be material to his case. If the court fails to grant an adjournment, the decision of the court may be set aside on appeal.

Presumption of innocence:

The defendant is always presumed innocent until his guilt is proved beyond reasonable doubt by the prosecution. See section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria. There are however, exceptions to this general rule under section 139(3) (c) of the Evidence Act in respect of insanity or facts within the knowledge of the accused person. For the implications of not giving effect to this presumption by the court, the above cases buttressed this principle.

Time to prepare for trial:

The defendant must be given adequate time and facilities to prepare for his defences. Section 36(6) (b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). It is noteworthy that once counsel has accepted brief from an accused person, he must be present in court during the whole of the trial of the case. That is to say: from the trial to the sentence. If, for some cogent and compelling reasons, counsel is not able to attend court, he must arrange with another counsel to hold his brief, or the court should grant an adjournment to enable counsel appear for the defendant/accused or call a witness that would be material to his case. If the court fails to grant an adjournment, the decision of the court may be set aside on appeal.

Presumption of innocence:

The defendant is always presumed innocent until his guilt is proved beyond reasonable doubt by the prosecution. See section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria. There are however, exceptions to this general rule under section 139(3) (c) of the Evidence Act in respect of insanity or facts within the knowledge of the accused person. For the implications of not giving effect to this presumption by the court, the above cases buttressed this principle.

Time to prepare for trial:

The defendant must be given adequate time and facilities to prepare for his defences. Section 36(6) (b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). It is noteworthy that once counsel has accepted brief from an accused person, he must be present in court during the whole of the trial of the case. That is to say: from the trial to the sentence. If, for some cogent and compelling reasons, counsel is not able to attend court, he must arrange with another counsel to hold his brief, or the court should grant an adjournment to enable counsel appear for the defendant/accused or call a witness that would be material to his case. If the court fails to grant an adjournment, the decision of the court may be set aside on appeal.

In the instant case, the Supreme Court held that a trial judge must grant adjournment in a murder charge once the defence counsel is absent at the hearing for the right of the defendant to fair hearing is not only statutory but constitutional.

In the instant case, the court held that where a witness is absent and an adjournment is sought, the defendant should normally satisfy thecourt that:

(a) The witness is material to his case;

(b) The defendant himself has not been guilty of negligence in procuring the witness to attend court, and;

(c) There is a reasonable expectation that he can procure his attendant for a certain date.

In the instant case, the court held that where a witness is absent and an adjournment is sought, the defendant should normally satisfy thecourt that:

(a) The witness is material to his case;

(b) The defendant himself has not been guilty of negligence in procuring the witness to attend court, and;

(c) There is a reasonable expectation that he can procure his attendant for a certain date.

Where a counsel is absent (and the offence is not a capital offence) and there is no reasonable explanation for his absence, a court may properly refuse an adjournment.

In the above case, the accused counsel sent a telegram to the court seeking an adjournment of his matter. He did not give reason in the telegram as to the necessity for an adjournment he is seeking and his failure to appear in court. The prosecutor opposed the application for an adjournment on the premise that several adjournments had been granted in the past and that the prosecution witnesses were in court to testify. The court refused the application for adjournment and proceeded with the case. The accused person conducted his defence and was convicted. He appealed against his conviction. It was contended that the appellant was denied a fair trial because the trail court refused to grant an adjournment to enable appellant's counsel appear for the appellant. The appellate court, dismissing the appeal, held that the appellant had a fair trial and that the failure of the appellant to be represented by counsel was not the fault of the court but that of the defence counsel.

It is noteworthy that after counsel has entered appearance on behalf of an accused person, he must be present in court whenever the case is listed. Counsel cannot withdraw from the case without leave of the court.

If counsel is however, unavoidably absent from court for cogent and compelling reasons, the court should grant an adjournment to enable counsel to attend court. If the court fails to grant an adjournment, the decision of the court may be set aside on appeal.

In the above case, the accused person was brought to court under a bench warrant to stand grail for offences of stealing and fraudulent accounting. The accused applied for an adjournment to enable him to retain counsel to represent him. The magistrate granted a shout adjournment of the case until later in the afternoon. At the resumed hearing, counsel was not in court. The accused failed to take part in the proceedings and was subsequently convicted. There was evidence before the appellate court on appeal against conviction on the premise that the appellant was denied a fair trial ... that any available counsel would have to travel to the court from the nearest gown - a distance of 23 miles. The appellate court allowed the appeal. It stated that the accused did not know that he would be coming to court to answer the charge levelled against him. Furthermore, because any counsel would have to travel a minimum of 3 miles to the court, the short adjournment was inadequate.

In this case, counsel excused himself from a case he was briefed to handle without first obtaining leave of the court. On appeal against conviction, the Apex Court held that except with the leave of the court, counsel must be present throughout the trial of a matter or cause even if he wishes or intends to be mute, keep quiet or inactive.

Offence must be known to law:

It is important to note that a defendant can only be convicted of an offence defined in a written law and the punishment thereby prescribed. See section 36(12) of the 1999 Constitution of the Federal Republic of Nigeria.

In the instant case the conviction of an accused person was set aside because the offence for which he was found guilty -- the offence of adultery is not an offence under the Criminal Code.

The Supreme Court held also in the case above that the accused person could not be convicted for an offence for which there was no punishment.

Right to silence:

The defendant must not be compelled to give evidence at his trial. Section 36 (11) Constitution of the Federal Republic of Nigeria 1999. This right is also protected by the Evidence Act under section 180(a). By Section 181 Evidence Act, the court, prosecution or any other party to the proceedings may comment on the failure of the defendant to give evidence in the case against him but the comment shall not suggest that the failure to do so is because the defendant is guilty.

One trial only for same offence:

By virtue of the provision of section 36(9) 1999 Constitution, no person shall be tried by any court of competent jurisdiction or tribunal twice for the same offence having the same ingredients. This right enables the defendant to raise the plea of autrefois acquit or convict so as to avoid double jeopardy under section 238 ACJA. This the court also decided in the above case.

Also, where a person has been pardoned for a criminal offence, he shall not again be tried for that offence. Section 36(10) of the 1999 Constitution of the Federal Republic of Nigeria. See also sections 239 and 240 of the ACJA.

Examination of prosecution witnesses:

An accused person has the right to examine witnesses called by the prosecution as enshrined in section 36(6) (d) of the Constitution of the Federal Republic of Nigeria 1999.

The appellate court held in the above case that where a trial court did not allow the accused to cross examine each prosecution witness as they gave evidence, but merely asked the witnesses several questions, the Supreme Court held that the court was in breach of section 36(6) (d) of the Constitution.

In this case, the counsel for the accused applied that a medical

officer who made a report which had been received in evidence in a charge of culpable homicide be called as a witness. The court rejected the application on the ground that the interest of justice would not be served by an adjournment of the case to enable the doctor be called as a witness.

The Supreme Court, inter alia, held that when a request is made by an accused person for the maker of a statement such as is now in point to be called as a witness, such application should not be lightly refused.

Provision of Interpreter:

A defendant is entitled to an interpreter without payment of any fees. See section 36(6) (e) Constitution of the Federal Republic of Nigeria 1999. Thus, where interpreters used in the trial were found to be incompetent to interpret satisfactorily, the convictions of the accused persons were set aside by the Supreme Court as in the cases above.

Provision of Interpreter:

A defendant is entitled to an interpreter without payment of any fees. See section 36(6) (e) Constitution of the Federal Republic of Nigeria 1999. Thus, where interpreters used in the trial were found to be incompetent to interpret satisfactorily, the convictions of the accused persons were set aside by the Supreme Court as in the cases above.

A defendant who does not understand the language being used at his trial should notify the court that he needs an interpreter. This was the decision of the court in the above cases. Notwithstanding, the courts usually asks parties, especially all appearing as witnesses, whether they understand the English Language being used or would have need for an Interpreter to recast the proceedings in the local language they are proficient in.

But it is to noted that the 'extra-mile' attitude of the courts does not take away the responsibility of a Witness to indicate that he needs an Interpreter.

In the instant case, the appellants' counsel argued that the appellants were denied a fair trial because the proceedings of the court which were conducted in Hausa, were not properly interpreted to the appellants. The appellants spoke and understood English and Yoruba, and not Hausa. At various stages of the proceedings, five interpreters were engaged. There was evidence that the interpreters were incompetent, and in at least two instances, misinterpreted the proceedings. The Federal Supreme court allowed the appellants' appeal on the premise that the appellants did not have a fair trial because the proceedings of the court were inadequately and incorrectly interpreted to them.

A defendant who does not understand the language being used at his trial should notify the court that he needs an interpreter. This was the decision of the court in the above cases. Notwithstanding, the courts usually asks parties, especially all appearing as witnesses, whether they understand the English Language being used or would have need for an Interpreter to recast the proceedings in the local language they are proficient in.

But it is to noted that the 'extra-mile' attitude of the courts does not take away the responsibility of a Witness to indicate that he needs an Interpreter.

In the above case, the respondent was acquitted of culpable homicide not punishable with death. The State appealed against the acquittal. The Appeal Court, allowing the appeal, held that failure of the trial judge to record language in which the charge was read and to certify that the proceedings were interpreted to the respondent were in breach of section 241 of the Criminal Procedure Code and section 33(6) (e) of the 1979 Constitution (now section 36(6) (e) of the 1999 Constitution).

In this case, the accused persons were convicted of offences under sections 79, 79(1) and 229(1) of the Penal Code by the High court, Jos. They appealed against their conviction on the ground that they were denied a fair trial. It was argued that they spoke and understood only Hausa, and that the language of the court, which was English, was not interpreted to them. The Appeal Court, allowing the appeal, held that the failure of the trial judge to interpret the proceedings in Hausa, for the benefit of the appellants was a breach of their constitutional right to fair hearing. The State appealed to the Supreme Court against the decision of the Appeal Court.

The Supreme Court held that the evidence on the record showed that the respondents understood English, the language of the court. Furthermore, the Apex Court held that at the respondents or their counsel did not inform the trial court at any rate that they did not understand the language of the court. The Apex Court concluded that in the absence of notice to the court by the accused or their counsel of their inability to understand the language of the court, the accused persons were estopped from relying on the failure of the court to provide them with an interpreter as a denial of fair trial to them.

Presence of Parties -- Defendant:

The defendant must, as a matter of necessity, be present in court throughout the whole proceedings. Section 208 ACJL Lagos, section 266 ACJA. Trial in absentia is a procedure unknown to our law. This was the clear decision of the court in the above case.

It needs not be reiterated that the accused person must be present in court during the whole trial, that is to say, from the time he took his plea to the time of verdict and sentence, except if for any reason his presence is dispensed with by the court.

However, the presence of a defendant or accused person may be dispensed with by the court if:

(a) He misconducts himself by so interrupting the proceedings or otherwise as to render the continuance of proceedings in his presence impracticable.

(b) The offence in respect of which a summons issued carries a penalty not exceeding N100, 000.00 or imprisonment not exceeding 6 months or both. In this case, the defendant can plead guilty in writing or appears and so pleads by a legal practitioner. See section 135 ACJA.

(c) The defendant is of unsound mind.

In this case, the appellant stood trial before a magistrate for

stealing and fraudulent false accounting. At the end of the trial, the trial magistrate convicted the appellant and sentenced him to a term of imprisonment. Subsequently, the magistrate, in the absence of the appellant, altered the sentence after realizing that he exceeded the maximum punishment he is permitted under the law to impose. On appeal against conviction, the Judicial Committee of the Privy Council held that the magistrate erred in law in altering sentence in the absence of the appellant. The appellate court reiterated the principle of law that trial means the whole of the proceedings including the passing of sentence. Thus, the appellant's appeal was allowed.

Where the defendant does not appear in court without being excused, the court may issue a bench warrant for his arrest and subsequently commit him to prison. See section 235 ACJL Lagos.

Presence of parties - the complainant:

Where the complainant has due notice of the time and place of hearing and does not appear in court, the court shall dismiss the complaint unless the court receives reasonable excuse for the absence in which case, it can adjourn. Section 351 ACJA, section 232 ACJL Lagos.

When a person is alleged to have committed an offence, a charge would be filed in the registry of the trial court by the prosecutor. On the day fixed for the hearing of the case, the defendant shall appear or be brought before the court. The registrar of the court calls out the names of the parties to the criminal cause. The defendant would proceed to the dock. The registrar of the court shall read out the allegations against the accused person(s) as contained in the charge sheet, and explained to him in the language he understands and to the satisfaction of the court. He shall thereafter be asked to plead to the charge. See section 211 ACJL Lagos, section 271 ACJA. This is called Arraignment as was held by the court in the above cases.

It has been suggested as good practice for trial courts specifically to record that the charge was read and carefully explained to the accused person to the satisfaction of the court before recording his plea to the charge.

When a person is alleged to have committed an offence, a charge would be filed in the registry of the trial court by the prosecutor. On the day fixed for the hearing of the case, the defendant shall appear or be brought before the court. The registrar of the court calls out the names of the parties to the criminal cause. The defendant would proceed to the dock. The registrar of the court shall read out the allegations against the accused person(s) as contained in the charge sheet, and explained to him in the language he understands and to the satisfaction of the court. He shall thereafter be asked to plead to the charge. See section 211 ACJL Lagos, section 271 ACJA. This is called Arraignment as was held by the court in the above cases.

It has been suggested as good practice for trial courts specifically to record that the charge was read and carefully explained to the accused person to the satisfaction of the court before recording his plea to the charge.

When a person is alleged to have committed an offence, a charge would be filed in the registry of the trial court by the prosecutor. On the day fixed for the hearing of the case, the defendant shall appear or be brought before the court. The registrar of the court calls out the names of the parties to the criminal cause. The defendant would proceed to the dock. The registrar of the court shall read out the allegations against the accused person(s) as contained in the charge sheet, and explained to him in the language he understands and to the satisfaction of the court. He shall thereafter be asked to plead to the charge. See section 211 ACJL Lagos, section 271 ACJA. This is called Arraignment as was held by the court in the above cases.

It has been suggested as good practice for trial courts specifically to record that the charge was read and carefully explained to the accused person to the satisfaction of the court before recording his plea to the charge.

In this case, the charge was not read to the accused person, neither was a plea taken from him. He was tried by the magistrate as if he had entered a plea of not guilty. The accused was discharged and acquitted. The prosecutor appealed against the acquittal on the ground that the charge was not read over to the accused person and a plea was not obtained from him. The appellate court, while allowing the appeal, held that the failure of the lower court to read the charge to the accused person and to obtain a plea from him rendered the whole trial a nullity.

In the above case, the accused person was arraigned on an information containing two counts of robbery contrary to section 402(2) (a) of the Criminal Code Act. He was convicted and sentenced to death. On appeal against his conviction, it was contended that the offences alleged against the accused were not read and explained to him, even though there was evidence of plea on the record of proceedings. The Supreme Court, allowing the appeal, held that the provisions of section 215 of the Criminal Procedure Act with respect to recording and taking of plea on a charge or information are mandatory and failure to comply with the requirements renders any proceedings a nullity.

In this case, counsel for the accused person withdrew the earlier plea of the accused to a charge against him and entered a plea of guilty for the accused. The accused was convicted on the substituted plea of guilty entered by his counsel. He appealed against his conviction. The appellate court held that the accused must personally plead to the charge against him. The appellate court further held that for the counsel to the accused person to have pleaded for the accused, the trial was a nullity. Thus, the appellant's appeal was allowed and a retrial ordered.

In the instant case, the accused person and 15 others were arraigned before the High Court. One of the accused persons entered a plea for himself and on behalf of other accused persons. At the conclusion of trial, some of the accused persons were convicted. They appealed against their conviction. On appeal, the appellate court allowed their appeal and held that each of the accused persons must enter a plea for himself and that failure so to do rendered the whole trial a nullity.

In this case, a charge sheet containing five counts of being in possession of stolen goods was preferred against the accused. The accused person entered an omnibus plea of not guilty to the charge sheet instead of pleading to each count contained in the charge sheet. He was convicted. He appealed against his conviction. It was argued on appeal that the trial court ought to have obtained a distinct plea to each count. The appellate court held that the proper procedure is for the trial court to obtain a distinct plea in respect of each of the five counts. However, the appellate court held that since the appellant suffered no injustice as a result of the irregularity, his appeal was dismissed.

Duty of Prosecuting Counsel:

The prosecuting counsel, in conducting his case, should know it that he carries with him, at all times in his conduct of the case, the duty to be fair and impartial to all sides of the case.

In other words, his interest primarily is to present the facts as they are -- to see that justice is done and not to secure a conviction. Thus, it is not proper for a prosecuting counsel to insist on the maximum punishment being imposed on the defendant as the court held in the above case.

Of noteworthy is the fact that the duty of the prosecuting counsel is not to secure a conviction at all costs. The prosecuting counsel must put all the pieces of evidence in a case before the trial court to enable it to come to a fair and just conclusion of the matter. To this end, a prosecuting counsel should be a prosecutor and not a persecutor.

In this case, the Criminal Appeal Court stated that:

"The business of the state counsel is to fairly and impartially exhibit all the facts to the jury. The crown has no interest in procuring a conviction but that the right person be convicted. Where a counsel refuses to rely on the real strength of his case and thinks he can strengthen it by things collateral in a manner contrary to the law, he only weakens his case and may prevent a verdict which ought to be obtained."

In the case, questions are put to the accused on cross examination to show that he received other stolen goods not in issue and no evidence was adduced. The judge quashed the conviction on this ground.

In the above case, the West African Court of Appeal observed that:

"Succinctly put, counsel are expected to assist the court and not to lead the judge to give a wrong decision per incuriam."

Still on the case, the court held that a counsel can do any of the following where an adverse decision exists:

If the previous decision is by a lower court, he may invite the court to overrule it;

If by a court of coordinate jurisdiction, it is open to him to distinguish the previous decision. In this case, counsel insisted on a submission which he had personally made in a previous case and had been rejected. He did not refer to the existence of the previous authority.

The prosecuting counsel also has a duty to make available to the defendant any piece of evidence favourable to him as was held by the court in the above case.

See also Rule 37(6) of the Rules of Professional Conduct 2007 which provides that a prosecutor shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused person and it shall timeously disclose to the lawyer or defendant where he is not represented, the existence of evidence known to it in favour of the defendant.

In other words, the prosecuting counsel is expected to place before the court every information which the court is entitled to have. He must never state facts to the court which he believes not to be true and must bring to the notice of the court every legal authority which his researches have revealed, notwithstanding that they might be adverse to his client's case.

In the instant case, counsel for the respondent brought to the notice of the court an authority favouable to the appellant's case even though the authority was not cited by the appellant and unfavourable to her case. Justice Eso, commended such disposition stating that the Attorney-General has presented the two sides of the case with brilliant clarity.

The followings are the duties expected of a defence counsel:

(i) Duty not to return the brief of person charged with capital offence.

The defence counsel has a duty not to return the brief of person charged with a capital offence. Where he has been briefed and he accepted brief, he is expected to give it priority to all other engagement. The defence counsel should take infinite pains to be properly and thoroughly prepared by acquainting himself fully with the facts and circumstance of his client's case. He is also expected to undertake the defence of a defendant not withstanding his personal opinion on the guilt of the defendant so that innocent persons are not convicted without having the benefit of the available defence to them by the law. This the court held in the above case. See Rule 37(1) (2) of the Rules of Professional Conduct 2007.

(ii) He must undertake the defence of a person charged with an offence - particularly a capital offence with reasonable skill and attention.

In this case above, the accused was charged with murder -- matricide (the killing of his mother). During the trial, the counsel assigned to defend him was absent on seven occasions -- during the presentation of the prosecution's case and on three occasions during the presentation of the defence. He neither cross-examined the prosecution witnesses nor extracted any evidence from the appellant. The case was later assigned to another counsel.

Worse still, the counsel simply rested his case on that of the prosecution. The appellant was convicted. But the Supreme Court ordered a retrial. This is what Justice Oputa (SC) said at p. 539:

"In every culture, the crime of matricide is shocking, revolting and a bit unnatural. Normal people do not go about killing their own mothers. Was the appellant insane? Why did he commit such a heinous and unnatural crime? What were his reasons if he was capable of reasoning? These are some of the compelling questions which should normally and naturally suggest themselves to the average lawyer called upon to handle the defence in a case like this. Unfortunately, the counsel did none of these things."

It is also not ideal or professional for the defence counsel in a murder case to threaten withdrawal simply because he does not know whowill pay his fees.

In this case, the counsel assigned to the accused threatened withdrawal from the case. He was unsure of who would pay his fees. But to worsen matters, when he was asked to address the court, he simply said he would leave the matter to the court. But much within expectation, the Supreme Court strongly rebuked this attitude. The court felt such conduct was unbecoming of a gentleman at the Bar and it was even honour in itself to be invited by the State to defend an accused person (See Kayode Eso (JSC) opinion in that case).

A defendant has a right to defend himself in person or be represented by a legal practitioner of his choice. See section 36(6) (c) of the 1999 Constitution. By virtue of the provisions of sections 2 and 23 of the Legal Practitioner's Act 1975, a Legal Practitioner must be one who is not under disability of whatever nature under the existing law, rules or regulations of the Government. In other words, he must be a person who has a right of audience in courts of law in Nigeria. If the legal practitioner is outside Nigeria, he must be entitled to automatic right of entry into the country. An accused person who retains a counsel subject to any legal disability cannot rely on the constitutional provision for a remedy.

In this case, the plaintiffs were charged with the offences or treasonable felony and conspiracy and were remanded in prison custody. They retained the services of a British barrister enrolled in Nigeria to act as their counsel. The British barrister was resident outside Nigeria. On arrival at the airport, an immigration officer acting under the direction of the Minister of Internal Affairs refused him entry into Nigeria. The plaintiffs brought an action for a declaration, inter alia, that they were entitled under the constitution of Nigeria to be defended by counsel of their choice, irrespective of the nationality of the counsel. The court, per Udo Udoma J, held that although, the provisions of section 36(6) (c) of the 1999 Constitution of the Federal Republic of Nigeria entitled every person who is charged with a criminal offence to either defend himself in person or by a legal practitioner of his choice. However, such legal practitioner must not be under any form of legal disability. Per Udoma J stated that the British barrister was enrolled to practice in Nigeria, but since he was not resident in Nigeria, he suffered from legal disability because he had no automatic right of entry into the country. The barrister could only enter Nigeria to defend the plaintiffs if he is permitted by the Minister of Internal Affairs, acting in accordance with the powers vested in him under the Immigration Act. And since the plaintiffs could not prove that the Minister acted maliciously refusing the British barrister entry into Nigeria, the Minister acted within the powers conferred on him, and the plaintiffs could not rely on the constitutional provision. Consequently, their action was dismissed.

The court in this case held that a counsel who is not qualified to apply for a process in the inferior court or disqualified from appearing in such a court cannot be briefed to appear in that court.

Therefore, the Senior Advocates of Nigeria (Privileges and Functions) Rules excluding a SAN from right of audience in the inferior court (Area courts inclusive) by the combined interpretation of Rules 2 and 3 against the background of Rules 4 and 6 of the Rules, is a clear qualification to section 33(6) (c) of the 1979 Constitution and that such exclusion does not in any way negate the fair hearing enshrined in the constitution.

In the above case, the accused person was charged before Area Court Grade 1 for the offence of theft. He engaged counsel to represent him at the trial. The Area Court, relying on section 390 of the Criminal Procedure Code, held that counsel had no right of audience in the court.

The accused was convicted. On appeal against his conviction, the High Court held that since section 390 of the CPC is in conflict with section 33(6) (c) of the 1979 Constitution of the Federal Republic of Nigeria now section 36(6) (c) of the 1999 Constitution which entitles an accused person to be represented by counsel of his own choice, it is null, void and of no effect. The appellant's appeal was allowed and his conviction set aside.

The Supreme Court held in this case that, any provision which forbids lawyers to represent an accused in a court of law is null and void being inconsistent with the Constitution

It is the right of any citizen charged with an offence to be informed that he has the right to be represented by a lawyer. The appellate court in the above cases, held that where the accused is brought before the court without representation, the court must inform him that he has a right to be represented by a counsel. Such rights cannot be said to have been waived.

It is the right of any citizen charged with an offence to be informed that he has the right to be represented by a lawyer. The appellate court in the above cases, held that where the accused is brought before the court without representation, the court must inform him that he has a right to be represented by a counsel. Such rights cannot be said to have been waived.

It is the right of any citizen charged with an offence to be informed that he has the right to be represented by a lawyer. The appellate court in the above cases, held that where the accused is brought before the court without representation, the court must inform him that he has a right to be represented by a counsel. Such rights cannot be said to have been waived.

Unlike the situation in civil proceedings, once counsel accepts a brief of criminal case defence, he automatically undertakes to put in his best, including commitment to stay and participate in the entire course of the trial.

In the above case, the accused counsel sent a telegram to the court seeking an adjournment of his matter. He did not give reason in the telegram as to the necessity for an adjournment he is seeking and his failure to appear in court. The prosecutor opposed the application for an adjournment on the premise that several adjournments had been granted in the past and that the prosecution witnesses were in court to testify. The court refused the application for adjournment and proceeded with the case. The accused person conducted his defence and was convicted. He appealed against his conviction. It was contended that the appellant was denied a fair trial because the trail court refused to grant an adjournment to enable appellant's counsel appear for the appellant. The appellate court, in dismissing the appeal, held that the appellant had a fair trial and that the failure of the appellant to be represented by counsel was not the fault of the court but that of the defence counsel.

In this case, the accused person was brought to court under a bench warrant to stand trial for offences of stealing and fraudulent accounting. He applied for an adjournment to enable him retain counsel to represent him. The magistrate granted a short adjournment of the case until later in the afternoon. At the resumed hearing, counsel was not in court. The accused failed to take part in the proceedings and was subsequently convicted. He appealed against his conviction. There was evidence before the appellate court that the appellant was denied a fair trial - that any available counsel would have had to travel to the court from the nearest town -- a distance of 23 miles to the court. The court stated that the accused did not know that he would be coming to court to answer the charges levelled against him.

Furthermore, because any counsel would have to travel a minimum of 23 miles to the court, the short adjournment was inadequate.

Consequently, the appellate court allowed the appellant's appeal.

In this case, counsel excused himself from a case he was briefed to handle without first obtaining leave of the court. On appeal against conviction, the Apex Court held that except with the leave of the court, counsel must be present throughout the trial of a matter or cause even if he wishes or intends to be mute, keep quiet or inactive throughout.

In the above case, the West African Court of Appeal observed that:

"Succinctly put, counsel are expected to assist the court and not to lead the judge to give a wrong decision per incuriam."

In the instant case, counsel for the respondent brought to the notice of the court an authority favouable to the appellant's case even though the authority was not cited by the appellant and unfavourable to her case. Justice Eso, commended such disposition stating that the Attorney-General has presented the two sides of the case with brilliant clarity.

In this case, the English Court of Appeal observed that:

It cannot be too often made plain that the business of counsel for the crown is fairly and impartially to exhibit all the facts to the jury. The crown has no interest in procuring a conviction. Its only interest is that the right person should be convicted, that the truth should be known, and that justice be done.*

In the above case, the accused person, a police officer, the accused person, a police officer, was charged with the offence of official corruption. It was alleged that he received N10,000 from members of a political party in order to guarantee the support of the police for the party. The offence was alleged to have been committed before December 1964. The prosecutor found some bank note wrappers in the possession of the accused. He obtained a certificate from the Central Bank, which piece of evidence was favourable to the accused person and which the prosecutor withheld and concealed from the court. Thus, the court was misled in believing that the wrappers found in possession of the accused were those used for wrapping the notes allegedly given to the accused corruptly.

On appeal against conviction by the appellant, Ademola CJN commented adversely on the unethical behavior of prosecuting counsel:

We consider this a somewhat disgraceful conduct on the part of the prosecuting counsel. We cannot do better than remind counsel that it is the duty of the prosecution to put all the facts at its disposal before the court and not to hide any fact. Anything short of this is an attempt to conceal from the court any evidence favourable to the accused person.

In the above case, the prosecuting state counsel urged the court to impose the maximum sentence prescribed for the offence on the accused person. The accused was sentenced to 12 years' imprisonment. On appeal against sentence on the premise that it was excessive, the Supreme Court noted:

We hope that in future, counsel appearing for the state will refrain from making such demands and will confine himself to relevant questions of fact such as the record of the accused and the prevalence of the offence.

A judge sitting over a criminal case should always appreciate that he is an umpire and as such should never enter into the arena of conflict so that he does not have a befogged vision of the case. The law allows a judge, to put questions to the witnesses or even call witnesses. But they must be directed towards a purpose. It must be for the just determination of the case. Section 246 Evidence Act. For the defendant is always presumed innocent until proved guilty subject only to permitted circumstances. Section 36(5) 1999 Constitution; section 135 (1) Evidence Act.

The cumulative effect of the foregoing is that a judge must also bear in mind the need to allow the defendant enjoy the benefit of any doubt as to his guilt where it exists. He should not take over the case of the prosecution. He must not descend into the arena of conflict with the view to making case for the parties. He must not become a "Hippy Harliet". He must not talk too much.

In this case, the accused person was charged with stealing. At the trial of the accused, trial magistrate personally took over from the prosecutor by cross-examining the accused person. The magistrate conducted a lengthy cross-examination of the accused in order to discredit his evidence. The accused was convicted. He appealed against his conviction. It was argued, inter alia, that the accused person did not have a fair trial because the magistrate took over the conduct of the case of the prosecutor. The Apex Court held that the magistrate erred in law to have taken over the conduct of the case. The appellate court further held that it was the duty of the prosecution to prove the guilt of the accused, and not that of the magistrate. Consequently, the appellant's appeal was allowed.

In this case, the accused persons were charged with armed robbery in

the Benin High Court. During their trial, the judge cross-examined witnesses for the defence at length and took over the role of the prosecutor. The judge used the evidence he elicited from the defence witnesses during their cross-examination to arrive at the conclusion that the accused persons were guilty as charged. They were convicted. On appeal against their conviction, it was argued for the accused persons that they did not have a fair trial because the judge descended into the arena of conflict. The Apex Court in allowing the appellants' appeal and ordering a retrial, held that the appellants could not be said to have had a fair trial in view of the cross-examination conducted by the judge.

Going from the above cases, the trial magistrate and judge

respectively talked too much; they took over the prosecution of the cases; asked damaging questions from the accused and relied on the evidence therefrom in convicting the accused persons. The Supreme Court held that those convictions could not stand because the judges became inquisitors; they did not allow the prosecutions to prove the guilt of the accused beyond reasonable doubt. Since this was fundamental, the accused persons were discharged and acquitted.

Going from the above cases, the trial magistrate and judge

respectively talked too much; they took over the prosecution of the cases; asked damaging questions from the accused and relied on the evidence therefrom in convicting the accused persons. The Supreme Court held that those convictions could not stand because the judges became inquisitors; they did not allow the prosecutions to prove the guilt of the accused beyond reasonable doubt. Since this was fundamental, the accused persons were discharged and acquitted.

There are options available to a defendant during the trial of his case.

They include:

raising a preliminary objection to the charge, refusing to plead, remain mute and making his plea.

A defendant may raise a preliminary objection to the jurisdiction of the court to try him or to a defect in the charge. His objection shall be duly considered and if upheld, he shall be discharged. However, if overruled, then he shall be asked to plead.

A defendant may refuse to plead to the charge. He shall thereafter be asked by the court for his reasons. Where the court is of the view that those reasons are not valid and the defendant still refuses to plead, a plea of 'not guilty' shall be entered on his behalf and the trial shall proceed. See section 276 ACJA, section 215 ACJA.

In this instant case, the accused person was charged with culpable homicide punishable with death for assaulting the deceased, as a result of which the deceased died. During the accused trial, he refused to plead to the charge, and a plea of not guilty was recorded by the court. The accused rested his case on that of the prosecution. The trial court found him not guilty of culpable homicide punishable with death. The reason being that, there was no evidence that the accused intended to kill the deceased.

However, he was convicted of the lesser offence of culpable homicide not punishable with death. He appealed against his conviction. The Supreme Court observed that the trial judge was right to have entered a plea of not guilty in accordance with the provisions of the Criminal Procedure Code when the appellant stood mute and failed to plead out of malice.

A defendant may decide to stand mute and the court shall call evidence to determine whether his muteness is of malice or due to the vis itation of God. If the court finds that his muteness is of malice, a plea of not guilty shall be entered and the trial shall proceed. The plea so entered for the defendant/accused person shall have the same force and effect as if such person had actually pleaded same. This the court held in the above case.

In the instant case also, four persons were charged and convicted of murder and robbery. The second and fourth accused persons failed to plead. The trial judge conducted a trial within a trial to determine whether their muteness was out of malice or of visitation of God. The trial showed that they were sane; that they were only mute out of malice and a plea of not guilty was recorded for them which they were consequently convicted. On appeal against conviction, their appeal was dismissed on the premise that the trial court was right in entering a plea of not guilty for them when they failed to plead out of malice.

It is pertinent to know that in order to establish whether an accused person is unable to plead as a result of visitation of God, (E.g. insanity), the court must investigate the matter of insanity by receiving evidence of a medical officer as to the accused person's state of mind. If the medical officer's certificate states that the accused is of unsound mind and cannot stand trial, and the court is satisfied with its finding, the trial shall not proceed and the accused shall be ordered to be detained until the pleasure of the Governor is known.

However, where the medical officer's certificate states that the accused person is of sound mind and capable of making his defence, and the court is satisfied with its finding, the court must proceed with the trial.

In the above case, the accused person was charged with murder. At the commencement of the trial, a medical certificate was presented that the accused was mentally abnormal. At the resumed hearing, defence counsel stated that the accused had given proper and rational instructions and that he was fit to stand trial. The accused himself stated that he knew he was charged with murder and understood the proceedings. The trial proceeded and the court convicted the accused of murder. He appealed against conviction. It was contended that the trial court failed to investigate the issue of fitness of the accused to stand trial. The appellate court in allowing the appellant's appeal, held that the matter of insanity had not been properly investigated by the lower court because there was no medical evidence before the court at the resumed hearing before the court ruled that the accused was fit to stand trial.

Noteworthy is the fact that where the defendant is found to be deaf and/or dumb, the court shall further take evidence to determine whether the defendant can be made to understand and follow the proceedings. If so, trial shall proceed. If not, the defendant shall be remanded in custody or released on bail until the visitation is over, or until the Governor's pleasure is known.

Plea of guilty:

The defendant may plead guilty to the charge against him. Such a plea of guilty shall be recorded by the court as nearly as possible in the words used by the defendant. If the court is satisfied that by the plea, the defendant intends to admit the truth of the essential ingredients of the offence, it may proceed to convict him on the plea. See section 274 ACJA, section 213 ACJL, Lagos.

Unless there appears to be sufficient cause to the contrary, the court in convicting an accused person on a plea of guilty entered by him, must record his plea as nearly as possible in the words used by him. The court must satisfy itself that the accused person understands the charge against him. That is to say, the charge must be read over and explained to him. The court must also hear facts alleged by the prosecution as constituting the offence charged. The court must also be satisfied that the accused intended to admit the commission of the offence charged to which he pleaded guilty. This is provided in section 218 of the Criminal Procedure Act.

It is also important to know that the plea of the accused must be an unequivocal plea of guilty. Where the accused enters an equivocal or ambiguous plea, the court must reject such a plea and a conviction must not be entered against the accused person on the basis of such plea.

In the instant case, the accused person was charged with the offence of escaping from lawful custody. He pleaded guilty with certain reasons. The magistrate without inquiring from the accused if he admitted the facts stated by the prosecution convicted him on his plea. On appeal against conviction, the appellate court held that the plea of the accused did not amount to a plea of guilty on the basis of which the trial court could record a conviction. The court further held that the trial court should have taken into consideration the statement made by the accused in mitigation, that he was never in lawful custody as a refutation of the facts stated by the prosecution. Thus, a plea of not guilty should have been entered for the accused. Consequently, the appellant's appeal was allowed.

In the first case, the conviction of the accused person for a road traffic offence upon a plea of guilty was quashed on appeal on the ground that the charge was not explained to him in compliance with the provision of section 161 of the Criminal Procedure Code.

In the second case, the accused person pleaded guilty to a charge of unlawful assault. The charge was not explained to him. The prosecution stated facts alleged against the accused person, and the magistrate, without asking the accused whether he admitted the facts stated by the prosecution convicted him. He appealed against the conviction. The appellate court in allowing the appellant's appeal, held that the failure of the trail magistrate to ensure that the charge was explained to the accused and to obtain his reply to the facts stated by the prosecution contravened the provision of section 218 of the Criminal Procedure Act.

In the first case, the conviction of the accused person for a road traffic offence upon a plea of guilty was quashed on appeal on the ground that the charge was not explained to him in compliance with the provision of section 161 of the Criminal Procedure Code.

In the second case, the accused person pleaded guilty to a charge of unlawful assault. The charge was not explained to him. The prosecution stated facts alleged against the accused person, and the magistrate, without asking the accused whether he admitted the facts stated by the prosecution convicted him. He appealed against the conviction. The appellate court in allowing the appellant's appeal, held that the failure of the trail magistrate to ensure that the charge was explained to the accused and to obtain his reply to the facts stated by the prosecution contravened the provision of section 218 of the Criminal Procedure Act.

Same as in the cases above which buttressed this principle.

It is also important to note that where the accused person pleaded guilty to an alleged offence, the prosecution must still go ahead to prove the ingredients of the offence the Defendant is charged with.

For instance, any material evidence kept in safe custody before it was sent for scientific analysis, must be established to have been kept in safe custody - any possibility of tampering with the evidence or substituting it with something else, the court must not convict an accused person on his plea of guilty despite expert evidence.

In this case, the accused person was convicted on his plea of guilty of being in possession of Indian hemp. The plant that was recovered from the accused was taken to the police station, and sent to the forensic laboratory for scientific analysis after having been kept at the police station for 24 hours. On appeal against conviction, the court held that there was a real possibility of the plant having been tampered with during the period it was kept at the police station. Therefore, for not been certain that it was the plant that was recovered from the accused person that was sent for scientific analysis, the appeal was allowed.

Where an accused person makes a clear, definite and unequivocal plea of guilty and denies it at any stage of the proceedings before sentence that he was criminally responsible, the court should not convict him on the basis of his plea. This is because his denial of criminal liability is an indication that the accused person did not intend to admit the charge against him by his first plea.

In this case, the accused person was charged and convicted of stealing. He appealed against his conviction on the premise that he did not intend to admit the charge and that he did not plead guilty. Evidence before the appellate court showed that the accused person had pleaded not guilty and a plea of guilty had been recorded mistakenly by the trial magistrate. Responding to the question put to him by the trial magistrate whether he took the money alleged to have stolen, the accused person gave his response in the affirmative.

The trial magistrate convicted the accused for the offence. The appellate court held that the accused person's statement that he took the money did not amount to an admission of stealing. He could have taken the money in order to keep it safe for the complainant. The appellate court stated that the trial court should have questioned the accused further to elicit whether he intended to steal the money. The appellate court went further to state that it is only when the answers received by the trial court showed that the accused person intended to keep the money for himself, that is, to steal the money that the court should have convicted the appellant for stealing. Consequently, the appellant's appeal was allowed.

It is important to know that the plea of the defendant must not be ambiguous, otherwise, the court shall not convict upon it. The conviction in this instant case was upturned because the defendant's plea of guilty was ambiguous.

It is important to know that the plea of the defendant must not be ambiguous, otherwise, the court shall not convict upon it. The conviction in this instant case was upturned because the defendant's plea of guilty was ambiguous.

Facts stated by the prosecution must support the charge to which the defendant has pleaded guilty, otherwise, the court shall not convict. And the trial court convicts on such a mismatch of facts in the Charge sheet and the facts upon which the defendant was convicted. It was for this miss-match of facts.

Where the plea of guilty is inconsistent with any other statement(s) made by the defendant either to the police or in court, he shall not be convicted on his plea. This is the decision of the court in the instant case.

The court in the above cases, held that where the offence to which the defendant has pleaded can only be constituted by expert evidence, such evidence must be validly tendered before he can be convicted on his plea of guilty.

Where there is doubt as to whether the thing found in possession of the accused person was what was tendered in court, the doubt should be resolved in favour of the accused. Even if the accused pleads guilty to the charge and admits the facts stated by the prosecution, the court should not convict without the supporting expert evidence.

The court in the above cases, held that where the offence to which the defendant has pleaded can only be constituted by expert evidence, such evidence must be validly tendered before he can be convicted on his plea of guilty.

Where there is doubt as to whether the thing found in possession of the accused person was what was tendered in court, the doubt should be resolved in favour of the accused. Even if the accused pleads guilty to the charge and admits the facts stated by the prosecution, the court should not convict without the supporting expert evidence.

In this case, the accused person was convicted on his plea of guilty of possessing forged currency. Evidence showed that the currency notes tendered at the trial court were genuine. There was doubt, however, as to whether the genuine currency was that found in possession of the accused. The appellate court held that the doubt ought to have been resolved in favour of the accused person. Thus, the court assumed that the currency found in the possession of the accused person was genuine and the appeal was allowed.

Where the offence charged is a capital offence, a plea of not guilty shall be recorded notwithstanding a plea of guilty by the defendant. See section 213 (3) ACJL Lagos, section 274(3) ACJA, section 187(2) of the Criminal Procedure Code. This the court held in the above case.

It is noteworthy that a plea of guilty may be withdrawn with the leave of court at any time before conviction but not after.

In the instant case, the accused person pleaded guilty to a charge of assaulting a police officer in the execution of his duties and with being found at night in possession of housebreaking implements. He was convicted and ordered to be remanded in custody. At the expiration of his remand, the accused sought to withdraw his pleas of guilty and to substitute pleas of not guilty. The trial court refused his application. The accused applied for orders of mandamus and certiorari to issue against the lower court to substitute a plea of not guilty for the plea of guilty, and certiorari to quash the plea of guilty.

The appellate court held that after a Magistrates' Court has accepted a plea of guilty and has taken some positive steps to evidence such acceptance with conviction, the court becomes functus officio. Consequently, the court accepted the plea and showed its acceptance by entering a conviction and ordering a remand, and the application for mandamus and certiorari was refused.

The defendant may plead not guilty to the offence charged but guilty to another offence. Where the court can convict the accused of the other offence, it may with the consent of the prosecution accept this plea and may proceed to convict the defendant on it.

If the court rejects the plea and proceeds to try the defendant on the charge against him, but found him not guilty of that charge, it cannot come back to convict him of that charge to which he has pleaded guilty. If the court convicts the accused on the charge against him for which he pleaded not guilty, the trial judge should abstain from entering a verdict on the other offence to which the accused pleaded guilty. The reason being that, should an appellate court reverse the decision of the trial court, the accused may still be convicted of the other offence to which he pleaded guilty. This the court held in the above cases.

The defendant may plead not guilty to the offence charged but guilty to another offence. Where the court can convict the accused of the other offence, it may with the consent of the prosecution accept this plea and may proceed to convict the defendant on it.

If the court rejects the plea and proceeds to try the defendant on the charge against him, but found him not guilty of that charge, it cannot come back to convict him of that charge to which he has pleaded guilty. If the court convicts the accused on the charge against him for which he pleaded not guilty, the trial judge should abstain from entering a verdict on the other offence to which the accused pleaded guilty. The reason being that, should an appellate court reverse the decision of the trial court, the accused may still be convicted of the other offence to which he pleaded guilty. This the court held in the above cases.

Plea of Not Guilty:

The defendant may make a plea of not guilty, in which case he shall be deemed to have put himself upon his trial. See section 212 ACJL Lagos, section 273 ACJA.

The defendant may plead not guilty by reason of insanity. In other words, that at the time he committed the offence, he was not in control of his mind and actions. Where this happens, the court shall proceed with trial and determine whether:

(a) The defendant did commit the offence;

(b) He was insane at the time of committing the offence.

If the defendant is found not to have committed the offence, he shall be discharged and the court shall not decide the issue of insanity. If he is found to have committed the offence and to be sane at the time of committing the offence, he shall be convicted as charged and sentenced accordingly. If he is found to have committed the offence and to have been insane at the time of committing it, he should be found not guilty by reason of insanity.

In the instant case, the accused person was charged with the murder of the deceased, whom he beheaded. At the trial, he entered a plea of not guilty by reason of insanity. Evidence of insanity of the accused was adduced at the trial. The trial court rejected the plea of not guilty by reason of insanity on the ground that there was nothing to suggest that the accused was insane at the time he committed the offence and convicted him. On appeal against conviction, the appellate court held that evidence adduced at the trial was sufficient to establish that the appellant was suffering from mental disease which prevented him from understanding what he was doing and prevented him from knowing that he ought not to do the act constituting the offence.

Therefore, the court held that the plea of not guilty by reason of insanity entered by the appellant ought to have been accepted. The appellate court allowed the appellant's appeal and substituted a verdict of not guilty by reason of insanity.

Where a verdict of not guilty by reason of insanity is entered for an accused person, the court must order that the accused person be detained at the pleasure of the Governor.

In the above case, the trial court found that the accused person committed the offence of wounding with intent to kill as a result of insanity. There was evidence that the accused committed the alleged offence because he was not able to control his actions.

The accused was found not guilty by reason of insanity and ordered to be kept in safe custody pending the pleasure of the Governor. The accused person appealed against the custodial order of the trial court, contending that having been found not guilty by reason of insanity, he ought to have been discharged and acquitted.

The appellate court held that in accordance with the provision of sections 229 and 230 of the Criminal Procedure Act, if an accused person committed an offence, but is found not guilty by reason of insanity, the trial court should make an order that he be detained in safe custody until the pleasure of the governor is known.

The appellate court further held that once it is duly established that the accused committed the offence as a result of insanity, a custodial order must be made by the court against him, that it is immaterial whether the insanity suffered by the accused is due to his inability to control his action or his inability to appreciate that what he did was wrong or inability to know that he ought not to do the act or make the omission constituting the offence.

In this case, the accused person pleaded guilty to a charge of unlawful assault. The charge was not explained to him. The prosecution stated facts alleged against the accused person, and the magistrate, without asking the accused whether he admitted the facts stated by the prosecution convicted him. He appealed against the conviction. The appellate court in allowing the appellant's appeal, held that the failure of the trial magistrate to ensure that the charge was explained to the accused and to obtain his reply to the facts stated by the prosecution contravened the provision of section 218 of the Criminal Procedure Act.

In the above case, the conviction of the accused person for a road traffic offence upon a plea of guilty was quashed on appeal on the ground that the charge was not explained to him in compliance with the provision of section 161 of the Criminal Procedure Code.

In the instant case, the accused person was charged with the offence of escaping from lawful custody. He pleaded 'guilty with certain reasons'. The trial magistrate without inquiring from the accused if he admitted the facts stated by the prosecution, convicted him on his plea. On appeal against conviction, the appellate court held that the plea of the accused did not amount to a plea of guilty on the basis of which the trial court could record a conviction.

Furthermore, the appellate court stated that the trial court should have taken into consideration the statement made by the accused in mitigation, that he was never in lawful custody as a refutation of the facts stated by the prosecution. Thus, a plea of not guilty should have been entered for the accused. Consequently, the appeal was allowed.

In this case, the accused person was charged and convicted of stealing. He appealed against his conviction on the premise that he did not intend to admit the charge and that he did not plead guilty. Evidence before the appellate court showed that the accused person had pleaded not guilty and a plea of guilty had been recorded mistakenly by the trial magistrate. Responding to the question put to him by the trial magistrate whether he took the money alleged to have stolen, the accused person gave his response in the affirmative.

The trial magistrate convicted the accused for the offence. The appellate court held that the accused person's statement that he took the money did not amount to an admission of stealing. He could have taken the money in order to keep it safe for the complainant. The appellate court stated that the trial court should have questioned the accused further to elicit whether he intended to steal the money. The appellate court went further to state that it is only when the answers received by the trial court showed that the accused person intended to keep the money for himself, that is, to steal the money that the court should have convicted the appellant for stealing. Consequently, the appellant's appeal was allowed.

In the case above, the facts stated by the prosecution on a charge of receiving stolen property did not include the fact that the accused knew or ought to have known that the property was stolen. On appeal against conviction for receiving stolen property, the court held that the facts stated by the prosecution could not sustain a charge of receiving stolen property. Thus, the appellant's appeal was allowed.

In the case above, the accused persons pleaded guilty to a charge of brigandage and rioting, armed with deadly weapons. The prosecution stated that the accused persons were convicted on their pleas of guilty. On appeal against conviction on the charge of rioting armed with deadly weapons, the court held that the facts stated by the prosecution disclosed the offence of rioting as against the offence of rioting armed with deadly weapons. Since no sticks were tendered in evidence, it was not possible to state whether the sticks would qualify as deadly weapons. The appellate court held that the facts adduced by the prosecution could only sustain a conviction for rioting. Thus, the court substituted a conviction for rioting for that of rioting armed with deadly weapons.

In the above, the accused person pleaded guilty to a charge of being in possession of Indian hemp. He was convicted on his plea of guilty. On appeal against conviction, the appellate court held that the conviction could not stand because the plants alleged to be Indian hemp were not tendered in evidence. Furthermore, there was no expert evidence in the form of a Government chemist's report, certifying the plants as Indian hemp. Consequently, the appellant's appeal was allowed and a retrial ordered.

In this case, the accused person was convicted on his plea of guilty of being in possession of Indian hemp. The plant that was recovered from the accused was taken to the police station, and sent to the forensic laboratory for scientific analysis after having been kept at the police station for 24 hours. On appeal against conviction, the court held that there was a real possibility of the plant having been tampered with during the period it was kept at the police station. Therefore, for not been certain that it was the plant that was recovered from the accused person that was sent for scientific analysis, the appeal was allowed.

In this case, the accused person as convicted on his plea of guilty of possessing forged currency. Evidence showed that the currency notes tendered at the trial court were genuine. There was doubt, however, as to whether the genuine currency was that found in possession of the accused. The appellate court held that the doubt ought to have been resolved in favour of the accused person. Thus, the court assumed that the currency found in the possession of the accused person was genuine and the appeal was allowed.

In the instant case, the accused person pleaded guilty to a charge of assaulting a police officer in the execution of his duties and with being found at night in possession of housebreaking implements. He was convicted and ordered to be remanded in custody. At the expiration of his remand, the accused sought to withdraw his pleas of guilty and to substitute pleas of not guilty. The trial court refused his application. The accused applied for orders of mandamus and certiorari to issue against the lower court to substitute a plea of not guilty for the plea of guilty, and certiorari to quash the plea of guilty. The appellate court held that after a Magistrates' Court has accepted a plea of guilty and has taken some positive steps to evidence such acceptance, the court becomes functus officio. Consequently, the court accepted the plea and showed its acceptance by entering a conviction and ordering a remand, and the application for mandamus and certiorari was rightly refused.

In the above case, the trial court found that the accused person committed the offence of wounding with intent to kill as a result of insanity. There was evidence that the accused committed the alleged offence because he was not able to control his actions.

The accused was found not guilty by reason of insanity and ordered to be kept in safe custody pending the pleasure of the Governor. The accused person appealed against the custodial order of the trial court, contending that having been found not guilty by reason of insanity, he ought to have been discharged and acquitted.

The appellate court held that in accordance with the provision of sections 229 and 230 of the Criminal Procedure Act, if an accused person committed an offence, but is found not guilty by reason of insanity, the trial court should make an order that he be detained in safe custody until the pleasure of the governor is known. It is immaterial whether the insanity suffered by the accused is due to his inability to control his action or his inability to appreciate that what he did was wrong or inability to know that he ought not to do the act or make the omission constituting the offence. Once it is established that he committed the offence as a result of insanity, a custodial order must be made against him.

In the instant case, the accused person was convicted of the murder of his mother. Evidence of insanity raised at the trial by the prosecution witnesses was not considered by the trial court. On appeal against his conviction, the appellate court in allowing the appellant's appeal, held that there was enough pieces of evidence of insanity and entered a verdict of not guilty by reason of insanity for the accused person.

Plea of Autre-Fois Acquit or Convict:

The defendant may make a special plea of autrefois acquit or autrefois convict which has been provided for in section 36(9) of the Constitution to the effect that:

"No person who shows that he has been tried by a competent court for a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredients as that offence, save upon the order of a superior court."

See also 277 ACJA, and 216 ACJL Lagos. It is important to know that the issue of this special plea shall be tried by the court and if found proved, the defendant shall be discharged. If found not proved, the defendant shall be asked to enter a plea and the court shall proceed with the trial.

In this instant case, the court held that the doctrine of autrefois acquit or autrefois convict applies whether the previous acquittal or conviction is by a local court or foreign court.

This the court held in this case that a defendant whose involvement in a previous trial is such that he was absent and did not participate in the foreign proceedings and did not run the risk of prison or fine, nor exposed to any true danger or evil or jeopardy in respect of the foreign conviction, cannot succeed on the plea of autrefois convict.

For a plea of autrefois acquit or autrefois convict to succeed, the

following are the elements that must be proved to the satisfaction of the court. They are:

(i) That the defendant had previously been tried on a criminal charge. A trial for a breach of an internal regulation of an association or body does not constitute a trial on a criminal charge. That is to say, the charge for which the accused person was tried must be for an act or omission constituted under a written law as an offence. A trial for any act or omission short of this is not a trial for a criminal offence and cannot be a ground on which autre-fois acquit or autre-fois convict can be sustained.

In the above case, the accused person was tried by a Police Orderly Room for a breach of police regulations. It was alleged that the accused used unnecessary violence on persons in his custody. He was convicted and ordered to be downgraded in rank by the Police Orderly Room. He was subsequently charged to court and convicted of offences of compelling action by assault, and assault. He raised the plea autre-fois convict. The trial court rejected his plea and convicted him. He appealed against his conviction on the ground that the plea of autre-fois convict was wrongly rejected by the trial court. The appellate court in dismissing his appeal, held that the plea was rightly rejected because the charge before the Police Orderly Room was not a criminal charge, but a breach of regulation.

In this case, the trial magistrate accepted the plea of autre-fois acquit pleaded by the respondent to a charge of rape. The respondent argued at the trial that as he had been discharged at a preliminary inquiry into the offence, a fresh charge could not be preferred against him. On appeal by the prosecutor, the court held that a preliminary inquiry in which the essential elements were not established or disproved does not constitute a trial of an offence. Therefore, the plea of autre-fois acquit was wrongly sustained, consequently, the prosecutor's appeal was allowed.

Also, for the plea to succeed, the trial must be shown to have taken place before a court of competent jurisdiction. That is to say, if the court that decided the case lacked jurisdiction, the verdict of the court cannot be pleaded in a subsequent charge for the same offence or for an offence for which the accused could have been convicted at the first trial.

In the above case, the accused person was convicted of various offences by a Magistrates' Court. The conviction was quashed on the ground that the magistrate lacked jurisdiction to try the offences. A fresh charge was preferred against the accused. In answer to the charge, he pleaded autre-fois acquit. The court rejected his plea and stated that where a conviction is quashed on the ground that the court below had no jurisdiction to hear and determine the matter, a plea of autre-fois acquit will not avail the accused person.

These authorities cited above buttressed this principle that where:

a) trial was terminated by a discharge but not with an acquittal or a conviction;

b) where the complainant fails to appear in court to testify for the prosecution.

c) where the prosecution withdraws the charge against the accused person before the accused opens his defence

d) where a nolle-prosequi has been entered by the Attorney-General.

Also to be noted is the fact that where the discharge of the accused person was on merit, a plea of autre-fois acquit can be invoked to a subsequent action for the same offence. A discharge based on a no-case submission by counsel or court suo motu is a discharge on merit.

These authorities cited above buttressed this principle that where:

a) trial was terminated by a discharge but not with an acquittal or a conviction;

b) where the complainant fails to appear in court to testify for the prosecution.

c) where the prosecution withdraws the charge against the accused person before the accused opens his defence

d) where a nolle-prosequi has been entered by the Attorney-General.

Also to be noted is the fact that where the discharge of the accused person was on merit, a plea of autre-fois acquit can be invoked to a subsequent action for the same offence. A discharge based on a no-case submission by counsel or court suo motu is a discharge on merit.

In the instant case, the accused person was acquitted of murder because the prosecution could not prove that it was the wound inflicted by the accused person that caused the death of the deceased. The accused was subsequently charged with the offence of committing an act intended to cause grievous harm. He pleaded autre-fois acquit to the charge on the ground that he had been previously acquitted of a charge of murder. The court rejected the plea and held that the accused could not have been convicted at the former trial of the subsequent offence charged, if he had been so charged.

In this case, the accused person was tried in a Magistrates' Court for stealing. After the close of the prosecution's case, the magistrate ruled that a prima facie case was not made out against the accused to warrant him enter his defence. The accused was discharged under the provision of section 286 of the Criminal Procedure Act. The accused was again charged before another magistrate with the same offence. He pleaded autre-fois acquit and his plea was upheld on the ground that a discharge under section 286 of the Criminal Procedure Act amounts to an acquittal. The prosecutor appealed against it and the appellate court held that a discharge under section 286 of the Criminal Procedure Act amounts to a discharge on merit. The appellate court dismissed the prosecution's appeal, and held that the plea of autre-fois acquit was rightly sustained by the lower court.

In all of this, it is important to point out that the criminal charge for which the defendant was tried must be the same as the new charge against him, or that the new charge is one in respect of which the defendant could have been convicted at the former trial although not charged with it.

However, where the subsequent charge is not identical to the earlier charge, the accused person has to prove that if he had been charged at the former trial with the subsequent offence, he may have been convicted. The accused has to establish that some or all the ingredients of the offence charged at the first trial could sustain a conviction for the subsequent charge, if he had been so charged at the former trial. For example, if the accused is charged with the offence of assault occasioning harm and was convicted, he cannot be charged on the same facts with the offence of assault.

In the instant case, the accused person was acquitted of murder because the prosecution could not prove that it was the wound inflicted by the accused person that caused the death of the deceased. The accused was subsequently charged with the offence of committing an act intended to cause grievous harm. He pleaded autre-fois acquit to the charge on the ground that he had been previously acquitted of a charge of murder. The court rejected the plea and held that the accused could not have been convicted at the former trial of the subsequent offence charged, if he had been so charged.

In the above case, the court rejected a plea of autre-fois acquit raised by the accused where he was acquitted of stealing a postal packet, but was subsequently charged with negligently losing the same packet.

In this case, the court held that the acquittal of the appellant on a charge of murder did not prevent a subsequent trial for aggravated robbery. The English House of Lords held that the appellant could not have been convicted of robbery at his trial for murder. Consequently, his plea of autre-fois acquit to the charge of aggravated robbery was rejected.

It is important to know that the court may however, convict on a charge not brought against a defendant under sections 160 - 170 ACJL, Lagos, 223 - 231 ACJA. This was the decision of the in the above case.

Also worthy of note is that in a trial on indictment in England, a court has a discretion to allow a plea of guilty to be withdrawn at any stage before conviction. The court submitted that the same principle applies under the provision of section 363 of the Criminal Procedure Act.

In the above case, the Appeal Court held, inter alia, that the High Court was not functus officio upon acquitting the accused person of the offences charged. It still retains jurisdiction until it has sentenced the accused for the lesser offence.

Standard of Proof:

By virtue of the provision of section 135(1) of the Evidence Act 2011, if the commission of a crime by a party to any proceeding is directly in issue whether civil or criminal, the standard of proof required of the prosecutor must be proof beyond reasonable doubt. This is the general rule as was held by the court in this case.

Contrastingly, the standard of proof of criminal defence or exceptions, etcetera which is placed upon a defendant is on the balance probabilities by virtue of section 137 of the Evidence Act.

"Competence and Compellability of Witnesses"

Competence is the ability of a person to give evidence while compatibility is the authority of a court to compel a person to testify. Compatibility is also the obligation of a person to attend and give evidence when commanded by a court by subpoena or witness summons. All persons are competent to testify unless the court considers that they are prevented from understanding questions put to them or giving rational answers.

The factors likely to affect the understanding or rationality of a witness are:

• Tender years

• Extreme old age

• Disease (whether of body or mind, or any other cause of the same kind).

See section 175(1) of the Evidence Act. It is important to know that in this case, the Apex Court held that competency is not a matter of age but intellectual capacity.

Also noteworthy is the fact that a person of unsound mind may testify during lucid intervals. Section 175(2) of the Evidence Act 2011. Also, a dumb witness may testify by sign or in writing. Section 176 of the Evidence Act 2011.

Exceptions to the Rule as to Competence and Compellability:

Evidence of a child. By virtue of the provision of section 2 of the Criminal Procedure Act, a child is any person who has not attained the age of 14 years. See sections 209(1) of the Evidence Act; and 371 ACJL (2011) as was held by the court in the above case.

The procedure in Child-witnessing is that the child would not be sworn or affirmed. A child can only testify if the court is satisfied that:

(a) He is possessed of sufficient intelligence; and

(b) He understands the duty of speaking the truth.

The requirements of intelligence and understanding of the duty of speaking the truth are conjunctive. There is however, no procedure in the Evidence Act for how court would satisfy itself as to intelligence and understanding of the child.

The first duty of a court is to test whether the child is possessed of sufficient intelligence. This is done by the court putting preliminary questions unrelated to the matter in controversy.

If the child fails these sets of questions, the child is not competent.

If the child demonstrates ability to understand the questions, then, the court proceeds to another next stage of determining whether the child understands the nature and implication of an oath. This is the decision of the court about the procedure to follow as was stated in the above case.

If he passes this second test of comprehending what oath taking is all about, then the Court would allow him to give his evidence on oath. The above case buttressed this principle.

Where the record of proceeding shows that the test was conducted, that would be prima facie evidence of conduct of inquiry. Actual questions and answer need not be recorded. The Supreme Court held that there was compliance with Section 154(1) and 182(1) of the EA 1990, similar to sections 175(1) and 209(1) EA 2011 when these steps have been taken.

Where a court does not conduct the first test to determine competence of the witness, the evidence would be inadmissible. This is the decision of the court in the above case.

Where the court fails to conduct the second test, the evidence would be regarded as un-sworn evidence which requires corroboration.

Accused as Witness:

A defendant is competent to testify in his own defence but not compellable to give evidence at the trial. Section 36(11) of the 1999 Constitution of the Federal Republic of Nigeria. He is competent as a witness for the prosecution in restricted circumstances.

In the above case, the court held that an accused person can testify against co-accused when the former (that is the accused person) had pleaded guilty and convicted before being called by the prosecution.

Counsel as witness for client:

A counsel representing his client is competent to give evidence for his client, but he has to withdraw as counsel if he is likely to be a witness. This is the decision of the court in the above case.

Corroboration is evidence which confirms another evidence. Nature of corroborative evidence varies from case to case as was held by the court in the above case.

It is important to know that corroboration evidence must be independent.

No particular numbers of witnesses are required to prove the guilt of a defendant. See section 200 of the Evidence Act. See also the above case which buttressed this principle.

A tainted witness is not an accomplice but may be a witness who has a purpose of his own to serve. For example, a witness with criminal connection and claimants to the property of deceased persons. Under Section 201- 204 of the Evidence Act, corroboration is required in cases of treason or treasonable offences; perjury; exceeding speed limit; and sedition.

By virtue of the provision of section 84 of the Evidence Act 2011, the conditions for admissibility of computer generated evidence is very well spelt out. The court also emphasized on this in the case above.

Of particular importance is to understand that what is required here is more about laying of foundation as to the identity and operation of the computer at the relevant period under section 84(2) of the Evidence Act should be taken note of and also the import of certificate of compliance.

Section 84 of the Evidence Act sets out the following conditions that are required to be met before a computer generated evidence can be admitted:

(a) That the computer was functioning or working properly. Section 84(2) (c);

(b) That the input and underlying equation or operation are complete and accurate, or that the computer was not fed with garbage. Section 84(2) (b);

(c) The document or output was produced during a period of regular storage or processing of information. Section 84(2) (a);

(d) The program is generated in conformity with the state of the art;

(e) The information contained in the document reproduces or is derived from information supplied to the computer in the ordinary course of business of the owner or user of the computer;

(f) The evidence should be presented by some person who can answer questions about the functioning of the computer in question;

(g) The witness must describe the computer and its mode of operation.

It is to be particularly noted that where a series or combinations of computers are used in the operation that generated the evidence, all the computers or combinations shall be treated as a single computer. Section 84 (3) E.A. Section 84(4) provides that in any proceeding where computer generated evidence is proposed under S. 84, a certificate identifying the document and describing the manner in which it was produced, giving such particulars of any device involved in the production of the document as may be appropriate for the purpose of showing that the document was produced by a computer, dealing with matter to which the conditions mentioned in subsection 2 related, and purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities, as the case may be, shall be evidence of the matter stated in the certificate; and for the purpose of this subsection, it shall be sufficient for the matter stated to the best of the knowledge and belief of the person stating it.

Witnesses Evidence:

The prosecution may open its case by a summary of evidence it intends to adduce in support of the charge against the accused person. Section 300 ACJA. However, what the prosecution generally does in practice is to call his witnesses one after the other after the announcement that the witness should be out of court and out of hearing.

It is pertinent to know that the effect when a witness does not go out of the court is well stated in the case above. The court held that such evidence was not inadmissible but the omission would affect the weight to be placed on the evidence.

Witnesses shall ordinarily give their evidence on oath or affirmation.

Section 205 Evidence Act. Where a witness refuses to be sworn on oath and without sufficient reason, he may be remanded in prison custody.

In the case above, the accused person was charged with a counterfeiting offence contrary to section 148(3) (e) of the Criminal Code. During the trial, the wife of the accused remained in court. defence counsel then stated that he wished to call the wife of the accused as a witness. The trial magistrate ruled that as the accused person's wife had been in court during the proceedings, no weight would be attached to her evidence. The accused was convicted and on appeal against conviction, it was argued that the trial magistrate erred in law in ruling that no weight would be given to any evidence given by the wife of the accused. The appellate court held that the proper procedure was to have heard the wife, and then to have decided whether and what weight should or should not be given to her evidence in view of the fact that she was present in court during the proceedings. Thus, the appellant's appeal was allowed.

It is pertinent to know that evidence may be given not on oath where it is the testimony of a child who does not understand the nature of an oath but possesses sufficient knowledge to justify the reception of his evidence and understands the duty of speaking the truth as was held by the court in the above case. See also Section 209 of the Evidence Act.

Section 208 of the Evidence Act also provides for the evidence of a non-believer or a person whose religious belief forbids taking of an oath.

Number of Witnesses Required to Prove a Case.

The number of witnesses to be called by the prosecutor is at its discretion to discharge the onus placed on it to prove its case against the accused person. It needs not call all the available witnesses, but those called must be sufficient and material to its case. See section 200 of the Evidence Act 2011.

In the above cases, the court has held as valid where only a number out of the witnesses listed on the information are called as there is no obligation on the Prosecutor to call all of its witnesses or where it is stipulated that the prosecutor must call required number of witnesses to prove its case. The only exceptions are where it is stipulated by law or by practice that a certain number of witnesses must be called to prove a case.

Number of Witnesses Required to Prove a Case.

The number of witnesses to be called by the prosecutor is at its discretion to discharge the onus placed on it to prove its case against the accused person. It needs not call all the available witnesses, but those called must be sufficient and material to its case. See section 200 of the Evidence Act 2011.

In the above cases, the court has held as valid where only a number out of the witnesses listed on the information are called as there is no obligation on the Prosecutor to call all of its witnesses or where it is stipulated that the prosecutor must call required number of witnesses to prove its case. The only exceptions are where it is stipulated by law or by practice that a certain number of witnesses must be called to prove a case.

In this case, only one witness out of the three witnesses was called, and the Supreme Court held that it was sufficient as long as it proved the case against the accused person.

It is important to know that where the prosecution fails to call sufficient witnesses to prove its case against the accused person, the accused would be discharged and acquitted.

In this case, the appellate court gave its decision with respect to the prosecution calling enough sufficient material witnesses to prove its case. The accused person was convicted of inflicting a grievous bodily harm on the complainant. At the trial, the accused person denied inflicting a grievous bodily harm on the complainant, and testified that the injury suffered by the complainant was caused by another person whom he named. The complainant who was called as a witness by the prosecution stated that the accused inflicted machete cuts on him. The accused was convicted. He appealed against conviction.

It was contended that the prosecution did not adduce sufficient evidence to prove the accused person's guilt. The Apex Court, in accepting counsel's contention, stated that the prosecution should have called the officer who investigated the case as a witness. The Apex Court further stated that the prosecution should have adduced evidence to nullify the defence raised by the accused that the injury sustained by the complainant was caused by another person. Consequently, the appellant's appeal was allowed.

In this case, the accused person was charged with murder. The prosecutor submitted that there was no case against the accused because the death of the deceased could not be linked to the act of the accused. The trial judge discharged the accused. The State appealed against the verdict of the court on the ground, inter alia, that despite the fact that the prosecution submitted that it had no case against the accused person, it was the duty of the court to ignore such statement and summon in witnesses in order to secure a conviction. In dismissing the appeal, the Apex Court held that it is not the duty of the court to call witnesses to establish the case against the accused person. The Apex Court stated that it is for the prosecution to call the necessary witnesses to prove its case. For the prosecution to have failed so to do, the accused must be discharged and acquitted.

The presiding judge or magistrate is always permitted by law to put questions to the witnesses testifying. However, the power so vested in him should not be used as an artifice or trick for taking over the conduct of the parties' case. A magistrate or judge should not be a "Hippy Hallet" by talking too much. He should not forget that what is being operated is the accusatorial and not the inquisitorial system of criminal justice because an accused person is presumed innocent until proven guilty. A magistrate or judge is seen as an impartial adjudicator or umpire, and he is not expected to descend to the arena of conflict.

In the case above the accused person was charged with stealing. At the trial of the accused, the trial magistrate took over from the prosecutor by conducting a lengthy cross-examination of the accused person in order to discredit his evidence. The accused person was convicted. On appeal against his conviction, it was argued that the accused did not have a fair trial because the magistrate took over the conduct of the case. The Apex Court held that the magistrate erred in law in taking over the conduct of the case as it was the duty of the prosecution to prove the guilt of the accused, and not that of the magistrate. Consequently, the appellant's appeal was allowed.

In this case also, the accused persons were charged with armed robbery in the Benin High Court. During the trial, the judge cross-examined witnesses for the defence at length and took over the role of the prosecution wherein he used the evidence he got from the defence witnesses during their cross-examination to arrive at the conclusion that the accused persons were guilty. They were convicted. On appeal against conviction, the Apex Court, in allowing the appellants' appeal and ordering a retrial, held that the accused persons could not be said to have had a fair trial in view of the cross-examination conducted by the judge.

By virtue of the provision of section 200 of the Criminal Procedure Act, the court may at any stage of the trial call any person as a witness or recall or re-examine any person already examined, and the court shall examine or recall and re-examine any such person if his evidence appears to the court to be essential to the just decision of the case. The court can also call new witnesses or recall and re-examine persons already called as witnesses only in the interest of justice. It cannot exercise the discretion vested in it for extraneous reasons. For instance, it cannot employ the discretion vested in it in order to provide a missing piece of evidence thereby, strengthening the case for the prosecution for the purpose of securing a conviction.

In the instant case, the accused person was charged with assault causing harm. During trial, the magistrate on his own volition and purportedly acting under the provisions of section 200 of the Criminal Procedure Act recalled a witness to tender a statement made by another person who was not present in court. The prosecution did not apply to tender the statement. The magistrate convicted the accused. On appeal against conviction, the appellate court held, inter alia, that the magistrate wrongly exercised the discretion vested in him under section 200 of the Criminal Procedure Act. The appellate court also found that the recalling of the witness was not for the just determination of the case presented before the court. The appeal was accordingly allowed.

In this case, the accused person was charge with road traffic offences. After the conclusion of the case and adjournment for judgment, the magistrate recalled the accused who had earlier given evidence during the trial. The accused was recalled in order to provide an omission in the record of proceedings. The distance travelled by the accused person after the collision was not recorded by the magistrate. The magistrate recalled the witness only to obtain this piece of evidence. The accused was convicted of one of the offences duly charged. On appeal against conviction on the premise that the magistrate wrongly exercised his discretion under section 200 of the Criminal Procedure Act, the appellate court held that the section was properly invoked by the magistrate, the reason being that the witness had been called in the interest of justice and fairness in order to provide an omission in the court record.

In this case, the accused persons were charged with murder. The prosecution and defence called its witnesses. At the close of the defence, the learned trial judge called two witnesses. The judge cross-examined them at length. Four of the accused persons were convicted. On appeal against their conviction, it was contended, inter alia, that the trial judge erred in law by calling two witnesses after the close of the case for the defence. The Apex Court found that the trial judge in the lower court called two witnesses in order to strengthen the prosecution's case. It held that there was an abuse of the powers vested in the court under section 200 of the Criminal Procedure Act, and consequently allowed the appeal.

It is of paramount importance to know that it is not a condition that the accused must have set up a case ex improviso before the judge can call or recall a witness after the defence has closed its case as was decided by the court in the case above.

However, whilst a large number of interventions must put Appeal Court on notice of the possibility of a denial of justice, mere statistics are not of themselves decisive. The critical aspect of investigation is the quality of the interventions as they relate to the attitude of the judge and the effect that the interventions have either upon the orderly, proper and lucid deployment of the case of the accused by his advocate or upon the efficiency of the attack so made on behalf of the defendant upon vital prosecution witnesses through cross-examination as seen in the above case.

Witness summons and subpoena are processes used to compel a person to appear in court and give testimony or to tender documents as was decided by the court in the above case.

The under-listed are the types of subpoena:

• Subpoena ad testificandum -- Form 40 FCT.

• Subpoena duces tecum -- Form 42 FCT.

• Habeas corpus ad testificandum -- Form 41 FCT.

• Witness summons. See sections 241 - 248 ACJA.

Subpoena is issued by a Judge upon application by parties or their legal practitioners. A magistrate may upon application of a defendant issue witness summons as in the instant case.

Failure to adjourn to enable defendant to secure attendance of a witness may be a denial of fair hearing. A magistrate can issue a witness summons but has no powers to issue a subpoena ad testificandum. A Magistrate must be satisfied that the evidence the witness would give would be material to the case before he issues a summons.

A party may apply to a judge for the issuance of a subpoena without disclosing the nature of evidence the witness may give as in the case above.

It is important also to note that under ACJA, any court may issue witness summons.

Hostile Witness:

A hostile witness in the opinion of the court is biased against the party who calls him. He supports the other party or has been compromised. In other words, a hostile witness is a witness who is not just simply unreasonable but actively becomes hostile to the party that called him and also fails to give evidence along his pre-trial account. He is a witness who bears hostile animus to the party calling him and is unwilling to testify or tell the truth. A party calling witness is deemed to be holding out such witness as witness of truth*.* This the court held in the above cases.

Therefore, a party calling a witness cannot discredit him by general evidence of bad character except where the court declares him hostile. See section 230 of the Evidence Act.

Hostile Witness:

A hostile witness in the opinion of the court is biased against the party who calls him. He supports the other party or has been compromised. In other words, a hostile witness is a witness who is not just simply unreasonable but actively becomes hostile to the party that called him and also fails to give evidence along his pre-trial account. He is a witness who bears hostile animus to the party calling him and is unwilling to testify or tell the truth. A party calling witness is deemed to be holding out such witness as witness of truth*.* This the court held in the above cases.

Therefore, a party calling a witness cannot discredit him by general evidence of bad character except where the court declares him hostile. See section 230 of the Evidence Act.

Upon application by party and court satisfying itself, the court can declare such a witness hostile. Section 230 of the Evidence Act. Upon his declaration, he may be cross-examined. This was the decision of the court in the above cases.

Upon application by party and court satisfying itself, the court can declare such a witness hostile. Section 230 of the Evidence Act. Upon his declaration, he may be cross-examined. This was the decision of the court in the above cases.

Hearsay evidence by virtue of the provision of section 37 of the Evidence Act, is an oral or written statement made by a person who is not a witness in a proceeding. It is also a statement contained or recorded in a book or document of any record whatever, proof of which is inadmissible for the purpose of proving the truth of the matter stated in it. This is decided by the court in the above cases.

However, there are exceptions to the rule in hearsay evidence by virtue of section 38 of the Evidence Act. Below are the exceptions:

• Affidavit evidence;

• Testimony regarding history and tradition -- Ansa v. Ishie (2005) LLJR SC

• Dying Declarations (Section 40 (1) & (2) E.A.;

• Res Gestae Section 4 E.A -- Rex v. Bang Weyeku JELR 86938 (WACA); Akpan v. State (1986) JELR 42650 SC

• Treatises published by experts -- (Olalomi Ind. Ltd v. NDIC); 28 - 32

Hearsay evidence by virtue of the provision of section 37 of the Evidence Act, is an oral or written statement made by a person who is not a witness in a proceeding. It is also a statement contained or recorded in a book or document of any record whatever, proof of which is inadmissible for the purpose of proving the truth of the matter stated in it. This is decided by the court in the above cases.

However, there are exceptions to the rule in hearsay evidence by virtue of section 38 of the Evidence Act. Below are the exceptions:

• Affidavit evidence;

• Testimony regarding history and tradition -- Ansa v. Ishie (2005) LLJR SC

• Dying Declarations (Section 40 (1) & (2) E.A.;

• Res Gestae Section 4 E.A -- Rex v. Bang Weyeku JELR 86938 (WACA); Akpan v. State (1986) JELR 42650 SC

• Treatises published by experts -- (Olalomi Ind. Ltd v. NDIC); 28 - 32

Power of party to Recall Witness:

The party seeking to recall a witness must apply to the court and state the reason why he wants the witness recalled. The court may, if it feels that the questions are material, recall the witness. This was its decision in the above cases.

Power of party to Recall Witness:

The party seeking to recall a witness must apply to the court and state the reason why he wants the witness recalled. The court may, if it feels that the questions are material, recall the witness. This was its decision in the above cases.

The defence may make a no case submission if at the end of the Prosecution's case, he feels he has no case to answer. In other words, by virtue of the provision of section 286 of the Criminal Procedure Act, if at the close of the evidence in support of the charge it appears to the court that a case is not made out against the defendant sufficiently to require him to enter his defence, the court shall as to that particular charge discharge him. See section 239 ACJL Lagos, section 302 and 303 ACJA. Some of the circumstances in which the application of no case submission can be made are:

(i) When there has been no evidence to prove an essential element of the offence.

In the instant case, the court held that for a submission of no case to answer to be sustained, the defence counsel does not need to contradict the evidence adduced by the prosecution or the credibility of the prosecution witnesses. What he needs to prove is that the element of the offence charged was not established by the evidence adduced by the prosecution.

(ii) When the evidence adduced by the Prosecution has been so discredited as a result of cross-examination.

(iii) When it has been proved to the satisfaction of the court that the evidence adduced by the prosecution is so manifestly unreliable that no reasonable tribunal could safely convict on it.

In the above case, the court held that it is only when any of the requisite conditions, that is to say:

(i) When there has been no evidence to prove an essential element of the offence.

(i) When the evidence adduced by the Prosecution has been so discredited as a result of cross-examination.

(ii) When it has been proved to the satisfaction of the court that the evidence adduced by the prosecution is so manifestly unreliable that no reasonable tribunal could safely convict on it.

is established to the satisfaction of the court that a court should uphold a submission of no case to answer.

The above cases also buttress the point that a submission of No Case to Answer can only succeed where the right circumstances, as stated in the cases above, are evident.

The above cases also buttress the point that a submission of No Case to Answer can only succeed where the right circumstances, as stated in the cases above, are evident.

In this case, it was established that the right procedure to follow by the Court, by its own motion, is that it an obligation to consider the prosecution's case to determine whether a case has been made out against the defendant, and if it discovers that the prosecution made out no sufficient case, it should discharge the defendant.

In the above case also, the accused persons were charged with culpable homicide punishable with death. At the trial, counsel for the second and third accused persons made a no-case to answer submission which was overruled by the court. Counsel for the first accused person made no such submission. The first accused was subsequently convicted. On appeal against his conviction, counsel for the first accused argued that since there was no evidence against the accused at the close of the prosecution's case, the court should have exercised its power and discharged the accused. The appellate court dismissed the appeal. It held that the trial court expressly ruled that the accused had a case to answer. Furthermore, when a submission of the no case to answer was made on behalf of the appellant's co-accused, it was rejected. Thus, the lower court was not called upon to exercise its power.

Where the defendant makes a no case submission, the ruling of the trial court should be confined to the submission and must neither be too lengthy, nor such as to fetter the discretion of the court in the matter which is yet to be adjudicated upon after hearing the defence.

In the above case, the accused person was charged with murder. At the end of the prosecution's case, the defence counsel made a no-case submission. Counsel's submission was rejected by the trial court. In its ruling, the court stated that the prosecution had proved the guilt of the accused person beyond every reasonable doubt. The accused was convicted. He appealed against his conviction on the ruling of the court. The appellate court held that where a no case submission has been rejected, the ruling of the trial court should be confined to the submission made to it.

In the instant case, at the trial of the accused person, defence counsel made a no-case submission. The submission was overruled and the trial court gave a ruling of inordinate length. The accused was convicted. On appeal against conviction, the Apex Court, per Ademola, commented on the trial court's ruling on the no-case submission to the effect that:

Whilst it is not the aim of the Apex Court to discourage a judge from discussing matters of interest in his judgment, there should be a warning against any ruling of inordinate length in a submission of no-case to answer which might fetter the judge's discretion at the end of the case; that is wiser to be brief and make no observation on the facts.

It is also important to know that a lengthy ruling on its own is not sufficient to vitiate a trial. The discretion of the court must not be fettered. In other words, where a no-case submission is overruled and a lengthy ruling is delivered, the ruling may or may not fetter the judge's discretion. It would depend on the facts of each particular case. Where the court's discretion is held to be fettered as a result of a lengthy ruling, the accused may be held to have been denied a fair trial. Where the lengthy ruling does not fetter the court's discretion, the validity of the trial cannot be attacked, challenged or impugned on the ground that the ruling of the court was lengthy.

In the above case, the accused persons were charged before the High Court with the offences of conspiracy to steal, stealing and arson. At the end of the prosecution's case, defence counsel made a no-case submission on behalf of the accused persons. The trial court rejected the no-case submission and gave a lengthy ruling. In the ruling, the court gave reason backed by authorities for rejecting each of the grounds relied upon by counsel in his submission. The court also stated in the ruling that it was aware that it has not reached the end of the proceedings. At the conclusion of the trial, the accused persons were convicted. On appeal against their conviction, it was argued that the accused persons did not have a fair trial because of the lengthy ruling of the judge.

The appellate court held that a lengthy ruling on a no-case submission will not constitute a denial of fair trial to the accused persons which would vitiate the trial. It also held that for the trial to be vitiated, the discretion of the trial court must have been restricted and/or fettered as a result of the lengthy ruling. The appellate court stated that the trial court realized that the proceedings were not at an end, and that the other party was yet to be heard. Consequently, the appellants' appeal was dismissed.

The effect of a discharge on a no case submission could be equivalent to an acquittal as provided for in section 301 of the Criminal Procedure Act.

In order to know whether a discharge amounts to an acquittal or not, the substance of the proceedings, as distinct from the form in which the ruling is pronounced has to be examined. If in substance, the discharge of the accused person is a discharge on the merit, then it amounts to an acquittal, irrespective of the form in which it is pronounced.

In the instance case, four count charge of corruption was preferred against the accused in a Magistrates' Court. At the close of the prosecution's case, the magistrate discharged the accused on the ground that no case has been made out against him. The magistrate however, ruled that the discharge of the accused was not on the merits. The prosecution filed an identical charge against the accused before the same court. The accused pleaded autre-fois acquit. The plea was rejected and the accused was convicted. On appeal against conviction, the appellate court held that the plea was wrongly rejected. Notwithstanding the form of the ruling, the discharge was in substance a discharge on the merits. Thus, the plea of autre-fois should have been sustained. Consequently, the appellant's conviction was set aside.

In this case, the accused person was tried in a Magistrates' Court for stealing. At the close of the case of the prosecution, the magistrate invoked the provisions of section 286 of the Criminal Procedure Act and discharged the accused. The accused was again charged before another magistrate. He pleaded autre-fois acquit. His plea was upheld on the ground that a discharge under section 286 amounts to an acquittal. The prosecution appealed. The appellate court while sustaining the plea of autre-fois acquit of the accused person and dismissing the prosecution's appeal, held that a discharge under section 286 of the Criminal Procedure Act is a discharge on the merits which amounts to an acquittal by virtue of the provision of section 301 of the Criminal Procedure Act.

It is important to note the circumstances when a discharge would only amount to a mere discharge not one on the merits and so does not amount to an acquittal. In that instance, a plea of autre fois acquit based on it will fail.

If a no case to answer submission is wrongly overruled and a defendant participates in the proceedings whereby he supplies the evidence incriminating him, it has been held that a conviction founded on such evidence could not stand. To hold otherwise will amount to requiring the defendant to prove his innocence. This the court held in the above cases.

It is immaterial whether the defendant participates in the trial or not, if in any event the submission is wrongly overruled or the court does not discharge when there is no case against the defendant after the close of the Prosecution's case. In other words, whether the accused person took further part in the proceedings or he withdrew from the proceedings after a no-case submission was wrongly overruled, a conviction based on subsequent incriminating evidence would be set aside on appeal. This was the decision of the court in the instant case.

Also, where the no-case-to-answer submission is rightly over ruled, evidence obtained from participation will be admissible against the defendant. It is immaterial whether the accused person took further part in the proceedings after the no-case submission was rightly overruled. In other words, whether he took further part in the proceedings, or he withdraw from the proceedings after the no-case submission was rightly overruled, a conviction based on subsequent incriminating evidence would be affirmed on appeal.

In the above case, the appellate court held that the no-case submission made on behalf of the fifth and sixth accused persons was rightly overruled. The accused persons took further part in the proceedings. Subsequent incriminating evidence of the first accused person was admissible as evidence against them. Their conviction by the lower court was affirmed by the appellate court.

This cases also buttressed the principle that if the no case to answer submission is RIGHTLY overruled any conviction secured even if on the grounds of a subsequently elicited.

This cases also buttressed the principle that if the no case to answer submission is RIGHTLY overruled any conviction secured even if on the grounds of a subsequently elicited.

In the above case, the Supreme Court, per Udo Udoma JSC, stated that:

. . . Where there is absolutely no evidence against the prisoner at the end of the prosecution's case, the court is under a legal obligation to discharge him at that stage, for to do otherwise would be tantamount to placing upon the prisoner the onus of establishing his innocence.

In this case, seven persons were charged with murder before the High Court. The trial court suo motu discharged and acquitted the third accused person at the end of the prosecution's case on the ground that she had no case to answer. The other accused persons were called upon to make their defence. At the conclusion of the trial, all the other accused persons except the first, were found not guilty and acquitted. The first accused person was found guilty and sentenced to death. On appeal against conviction, the Supreme Court held that there was no case against any of the accused persons at the end of the prosecution's case because none of the accused persons was identified as one of the assailants of the deceased. The appellate court stated that to require the first accused person to enter into his defence when there was no case made out against him was to require him to prove his innocence, thereby shifting the onus of proof from the prosecution to the accused which is contrary to the presumption of innocence of the accused as contained in section 36(5) of the 1999 Constitution. Consequently, the appeal was allowed.

In this case, a 13-count charge of conspiracy to steal, stealing, forgery, uttering, etc., was preferred against the accused persons. The accused were convicted of various offences. They appealed against their conviction. The ninth accused person, a legal practitioner, appealed against his conviction on the ground that the trial court erred in law in convicting him of two of the counts preferred against him. Appearing in person, he contended that there was no evidence against him at the close of the prosecution's case. At that stage, a no case submission was made by his counsel in the lower court. Counsel's submission was overruled by the trial court. After the no case submission was wrongly overruled, the accused took no further part in the proceedings. Nonetheless, he was convicted on the subsequent incriminating evidence of some of his co-accused.

The Supreme Court held that where a no case submission was wrongly overruled, and an accused withdraws from further participation in the proceeding, he cannot be convicted on subsequent incriminating evidence. The Apex Court held that there was no evidence against the appellant at the close of the prosecution's case. As the appellant had at that stage withdrawn completely from the proceedings, he could not be convicted of the offences on subsequent incriminating evidence of his co-accused. Thus, his conviction was set aside and the appeal allowed.

In the case above, ten accused persons were charged with the offence of murder. A no-case submission was made on behalf of all the accused persons except the first accused person. The trial court upheld the no-case submission on behalf of the second and seventh accused persons. They were discharged and acquitted. The no-case submission was rejected on behalf of the others. At the conclusion of the trial, the trial court convicted the first, third, fourth, fifth, sixth, eighth and tenth accused persons. The ninth accused person was found not guilty and acquitted. On appeal against their conviction, the appellate court held that the court was wrong in overruling the no-case submission made on behalf of the third, fourth, eighth and tenth accused persons. The court found that after the overruling of the no-case submission, the accused persons further took part in the proceedings. The Supreme Court, per Agbaje JSC, stated thus:

After the ruling on the no-case submission and the proceedings in the case continued, the 3^rd^, 4^th^, 5^th^, 6^th^, 8^th^ and 10^th^ accused persons took part in these subsequent proceedings, although their counsel had earlier on said they were relying on the no-case submission and in fact none of them went into the witness box to give evidence. I have come to this conclusion because as I have said earlier on in this judgment, their counsel cross-examined the 1^st^ accused person who gave evidence in the witness box.

The first accused person confessed to have committed the alleged offence and gave subsequent incriminating evidence against the other accused persons. Nonetheless, the court held that on the authority of Mumunis' case, the third, fourth, eighth and tenth accused persons whose no-case submissions were wrongly overruled could not have been convicted on the subsequent incriminating evidence of the first accused. Therefore, the appeal of the third, fourth, eighth and tenth accused persons were allowed.

After the close of the Prosecution's case, if it appears to the court that a prima-facie case has been made against the defendant, he is called upon for his defence.

The step the court would take is dependent on whether he is represented by counsel or not.

Where the accused person has no legal representation, the court shall inform him of the three alternatives open to him, viz:

(i) He may make a statement without being sworn from the place where he then is, in which case, he will not be liable to cross-examination.

(ii) He may give evidence in the witness box, after being sworn as a witness, in which case, he will be liable to cross examination.

(iii) He needs not say anything at all, if he so wishes and in addition, the court shall also ask him if he has any witness to examine or other evidence to adduce in support of his defence. Section 240(1) (a) ACJL, Lagos.

In Lagos State, for instance, by the effect of Section 240(1) (a) ACJL, non-compliance per se does not vitiate the proceedings provided that the court called the accused for his defence and asked him if he had any witnesses and heard the defendant and his witnesses and other evidence if any as provided in section 287 and 288 of the Criminal Procedure Act.

But where an accused person is represented by a legal Practitioner, the court shall call on his counsel to proceed with the defence. Section 240(1) (b) ACJL, Lagos. It is presumed that counsel knows the law, including the law of procedure. Thus, he is expected to know what further steps to take when he is called upon to proceed with the case for the defence.

In this case, the accused was charged, sentenced and convicted of armed robbery. He appealed against his conviction on the ground that trial court failed to comply with the provision of section 287(1) (a) of the Criminal Procedure Act (CPA) by not informing him of the available options open to him in his defence. His appeal was dismissed. The Supreme Court, in dismissing his appeal held that the record showed that the appellant was represented throughout the trial by a counsel. The presumption is that the appellant's counsel knows the law and would appropriately advice his client on what to do at the close of the prosecution's case.

In this case, the accused person appealed against his conviction on the ground that the trial court failed to comply with the provisions as stipulated in the CPA. The record showed that the accused person was not represented by counsel and that the trial court failed to comply with the provisions provided therein. The appellate court held that notwithstanding the irregularity, the accused person was not prejudiced and no miscarriage of justice was occasioned, thus his appeal was dismissed.

Where the defendant is unrepresented, it has been held only that should the courts record show clearly what the trial court has done, whatever rights have been explained to the defendant must be fully recorded. This duty exists where the defendant is either unrepresented or is represented but his counsel is not in court at the material stage in the proceedings.

In this case, the appellant appealed against his conviction on the ground that the trial court did not comply with the provisions of section 287 of the Criminal Procedure Act. The appellate court found that the appellant, who was not represented by counsel in the trial court, was not informed of the provisions of section 287 of the Criminal Procedure Act. The court cited with approval Eme's case, quashed the appellant's conviction and allowed his appeal.

It is pertinent to note that where an accused person is not represented by counsel or his counsel is absent in court at the conclusion of the prosecution's case, it is the duty of the court to inform the accused person of the three alternative options open to him in the conduct of his defence. The provisions of section 287 of the Criminal Procedure Act are mandatory and must be duly complied with by the court. What is required of the trial court is to explain to the accused person the three alternative options open to him. It is insufficient compliance with the provisions of section 287 for the court to merely read out the provisions of the section. The court must explain each of the alternatives to the accused person. Failure of the court so to do will amount to failure to comply with the provision.

In this case, the accused was charged with armed robbery and murder. At the trial, he was not represented by any counsel. The record of proceedings in the lower court showed that the trial judge stated that the rights of the accused were explained to him. There was no further elaboration in the record of proceedings as to the rights of the accused person that were explained to him by the court. The accused was convicted.

On appeal against his conviction, it was contended that the accused did not have a fair trial because the provision of section 287 of the Criminal Procedure Act was not complied with. The Supreme Court allowed the appellant's appeal. It held that sufficient compliance with the above statutory provision was not complied with thereby explaining to the accused persons the three options option to him for him to appreciate.

The defendant may, in making his defence, adopt any of the alternatives stated above that is:

(i) He may make a statement without being sworn from the place where he then is, in which case, he will not be liable to cross-examination.

(ii) He may give evidence in the witness box, after being sworn as a witness, in which case, he will be liable to cross examination.

(iii) He needs not say anything at all, if he so wishes and in addition, the court shall also ask him if he has any witness to examine or other evidence to adduce in support of his defence. Section 240(1) (a) ACJL, Lagos.

Where the defendant does not call any evidence at all, he is said to rest his case on the prosecution. On the implication of this step, the Supreme Court noted:

"Whereas prudence dictates that an accused person should not assist the prosecution which has failed to prove every material ingredient in the case against him by giving them the opportunity of extracting it in witness box under the fire of cross-examination, it is reckless to insist on the exercise of that right when the prosecution has made out a prima-facie case which calls for the accused person's explanation." Per Nnaemeka-Agu J.S.C. in Babalola v. The State above.

So, while it may be attractive for the accused person to rest his case on the prosecution's case, it certainly always better for the accused to state his own case once the prosecution has set out a prima facie case that needs to be demolished.

Also in this case, the accused persons were charged with murder. The prosecution called one eye witness to the offence. The defence rested its case on that of the prosecution. The accused persons were convicted. On appeal against conviction, it was contended that the prosecution ought to have called the three eye witnesses to the incident. The Supreme Court rejected counsel's contention. It stated that the prosecution need not call all material witnesses; that all that the prosecution need to do is to call enough material witnesses to prove its case.

One of the potent defences a defendant may raise in his defence is the defence of alibi. Alibi simply means that the defendant was somewhere else at the time the alleged offence was committed and could not have possibly committed it. So declared the court held in the above cases.

It is important to know that it is not just enough for an accused person to raise the defence of alibi by stating that he was elsewhere at a time antecedent to the time the crime was proved to have been committed, he also needs to show that because he was at that place at the time, it was impossible for him to have been at the scene of the crime when it was shown to have been committed. He will, of course, need to furnish particulars as to time, address, witnesses (if any) and any other particular evidence that will indisputable establish that he was there at that time.

One of the potent defences a defendant may raise in his defence is the defence of alibi. Alibi simply means that the defendant was somewhere else at the time the alleged offence was committed and could not have possibly committed it. So declared the court held in the above cases.

It is important to know that it is not just enough for an accused person to raise the defence of alibi by stating that he was elsewhere at a time antecedent to the time the crime was proved to have been committed, he also needs to show that because he was at that place at the time, it was impossible for him to have been at the scene of the crime when it was shown to have been committed. He will, of course, need to furnish particulars as to time, address, witnesses (if any) and any other particular evidence that will indisputable establish that he was there at that time.

Normally, once the defence has closed his case, the prosecution cannot call any witness. However, if the defence adduces in his evidence new matters which the complainant could not have foreseen, the complainant may with the leave of the court, adduce evidence to rebut such first mentioned evidence. This is called ex-improviso cases. See section 241 ACJL, Lagos.

It is important to know that the court must be convinced that an ex improvise has arisen before it grants leave to the prosecution to call its witnesses in rebuttal of the ex improviso evidence at the close of the case of the defence.

It is pertinent also to know that the power of the court to grant leave to the prosecution to call evidence in rebuttal of ex improvise evidence should be distinguished from the power of the court to recall or call at any stage of the proceedings before judgment suo motu a witness for examination for the just decision of the case before it. Where it is for the just determination of a case, the court has power to call or recall a witness whether it is a witness for the defence or prosecution, irrespective of whether a matter has arisen ex improvise and where witnesses are to be called in rebuttal to an ex improvise evidence, it is the prosecution that has the power so to do but with the leave of the court.

The distinction between a court calling or recalling a witness suo motu for the just determination of a case, and the prosecutor calling a witness with leave of court after the case of the defence was illustrated in this case of Bala v. C.O.P. above.

In this case, the accused persons were charged with theft. At the conclusion of trial, the evidence before the court was not enough to ground a conviction. The trial Magistrate, acting under the provision of section 237(1) of the Criminal Procedure Code, recalled two prosecution witnesses who gave evidence. The evidence of the witnesses was used to convict the accused persons. On appeal against their conviction, it was argued, inter alia, that the Magistrate erred in law in recalling the two prosecution witness when no matter arose ex improvise, that is, matters which could not have been foreseen with human ingenuity. The appellate court held that in putting the provision of section 237(1) (a) of the Criminal Procedure Code under adequate and proper construction, a matter does not need to arise ex improviso before a court can exercise its power to call additional evidence under the 237(1) (a) CPC (Supra).

The court held that a trial court has the power by virtue of the above section to call additional evidence or to recall witnesses if the evidence of such witness appears to the court to be of great important or essential to the just and proper determination of the case brought before it. The power is not subject to the limitation that the witnesses must be called or recalled in order to adduce evidence in rebuttal on a matter that arose ex improviso.

The appellate court held that the evidence given by the witnesses, recalled by the court was not in rebuttal of a matter which arose ex improvise. That notwithstanding, since it was evidence necessary for the just and proper determination of the case, the prosecution witnesses were properly recalled by the court. The appeal was therefore dismissed.

In the instant case, the trial court, in exercising its power under section 200 of the Criminal Procedure Act, called two witnesses after the close of the case for the defence. The accused person appealed against his conviction on the ground that the two witnesses called by the court were called to strengthen the case of the prosecution. Consequently, the appellant's appeal was allowed as the appellate court accepted that the trial court should not, without there being the justifiable need. It will not be accepted as justifiable when the only reason for calling new witnesses or recalling witnesses after the defence has closed its case, is for the purpose of smoothening and strengthening the case of the prosecution.

In the instant case, the trial court, in exercising its power under section 200 of the Criminal Procedure Act, called two witnesses after the close of the case for the defence. The accused person appealed against his conviction on the ground that the two witnesses called by the court were called to strengthen the case of the prosecution. Consequently, the appellant's appeal was allowed as the appellate court accepted that the trial court should not, without there being the justifiable need. It will not be accepted as justifiable when the only reason for calling new witnesses or recalling witnesses after the defence has closed its case, is for the purpose of smoothening and strengthening the case of the prosecution.

The essence of an address at the conclusion of evidence is to enable both defence and the prosecution to present to the court succinctly the facts which have been proved or disproved by the evidence adduced before the trial court and to convince the court that it has established its case by marshalling the law to the facts.

After the close of the prosecution's case, the accused or his counsel where represented, shall be entitled to address the court at the commencement or conclusion of his case.

Whether or not a prosecutor will be entitled to reply after the address of the defendant will depend on how the defendant conducted his case and/or on the status of the prosecutor.

If the defence called no witness other than himself or where the witnesses were solely as to the character of the defendant, or only for the purpose of putting in document as evidence for the defence, the prosecutor shall not be entitled to address the court a second time, except where he is a law Officer.

Also, if in opening the case for the defence, the person appearing for the defendant introduced new matter without supporting it by evidence the court in its discretion, may allow the person appearing for the prosecution to reply.

In the above case, the court held that where the accused gave evidence in his own defence, without calling any other witness, he had not called witness for the purpose of conferring a right of reply on the prosecutor.

In the above case, a law officer is said to mean the officers in the Ministry of Justice. See also section 1 of the Criminal Code.

It is also noteworthy that private prosecutors engaged by the A.G. or the Director of Public Prosecution (DPP) to prosecute cases on behalf of the State may qualify as law officers. See section 371 ACJL Lagos on definition of law officer.

The right of reply is discretionary and the law officer may choose not to reply or exercise his right. This the court held in the above case.

If any witness, other than the defendant himself or witnesses solely as to the character for the defendant is called or any document is put in as evidence for the defence, the person appearing for defendant shall be entitled after evidence on behalf of the defendant has been adduced to address court a second time on the whole case and the person appearing for the prosecution will have the right of reply.

The Supreme Court noted recently that a party or his counsel cannot confer on himself the right to do so at his pleasure. A party or counsel may forfeit or be taken to waive his right of address if he fails to address when called upon to do so at the close of the evidence.

In this case I was stated that counsel's failure to address does not vitiate proceedings, although, address will be of immense assistance to the judge if counsel exercises this right. This the court held in the above case.

The composition of a court must not be altered from commencement of proceedings to conclusion of trial. In other words, where a case is brought before the court, the Magistrate or Judge presiding on the case shall hear the case from arraignment to sentence. If the composition is altered (i.e. by transfer, retirement or death of the officer presiding, the trial must terminate and the hearing must be commenced de novo, i.e., afresh before another magistrate or judge.

In this case, at the time the magistrate sentenced the accused in Kaduna, he had been transferred to another State. He came down and delivered the judgment. The appellate court held that there was no judgment since the magistrate had vacated office, he could not deliver the judgment again.

In the above case also, a High Court judge delivered judgment in a civil suit two days after he was elevated as a judge to a higher court. The appellant argued that the trial judge, having been appointed a judge of a higher court, is ousted of the jurisdiction to deliver judgment on the matter. The appellate court held that the trial judge ceased to be a judge of the High Court on the day his appointment as a judge of the higher court came into effect. On the day the High Court judge delivered judgment, he was no longer a judge of that court. Consequently, the appellant's appeal was allowed and a retrial ordered.

In the above case also, a High Court judge delivered judgment in a civil suit two days after he was elevated as a judge to a higher court. The appellant argued that the trial judge, having been appointed a judge of a higher court, is ousted of the jurisdiction to deliver judgment on the matter. The appellate court held that the trial judge ceased to be a judge of the High Court on the day his appointment as a judge of the higher court came into effect. On the day the High Court judge delivered judgment, he was no longer a judge of that court. Consequently, the appellant's appeal was allowed and a retrial ordered.

Contents of Judgment:

It is important to know that every judgment shall contain:

(i) The point or points for determination.

(ii) The decision of the court thereon on the point or points for determination.

(iii) The reason(s) for the decision. See section 294 of the 199 Constitution of the Federal Republic of Nigeria; Section 275 ACJL, Lagos; section 309 ACJL, Kano.

In this case, the trial judge, inter alia, found the accused guilty of some of the counts and sentenced him. He did not give any reasons form his decisions and on appeal, the Apex Court held that the judge violated section 245 C.P.L. (Now repealed) to have failed to state the points for determination, the decision thereon and the reasons for the decision, thus, the appeal was allowed.

In the case above, the accused persons were charged and convicted on two counts of burglary and housebreaking. In the trial judge's judgment, he stated that the evidence against the accused persons was overwhelming and found them guilty. The accused persons appealed against conviction on the ground inter alia that the judgment of the court did not contain the points for determination, the decision of the court and the reasons for the decision. The Supreme Court agreed with counsel's contention that the judgment of the trial judge did not comply with the requirements of the law because the evidence of the prosecution and that of the defence was not review, and no reasons were given for the decision of the court. Consequently, the appellants' appeal was allowed.

In the instant cases, the reasons for the decision of the court were not given in a matter decided, and an appeal to that effect was allowed. Also to be stated on the face of the judgment, and forming part of the components of the judgment are:

1. The date on which the judgment was delivered.

2. The signature or seal of the court at the time of pronouncing it.

See sections 294 CFRN, 245; 308(1) ACJA; 275 ACJL Lagos and 309 ACJL Kano.

In the instant cases, the reasons for the decision of the court were not given in a matter decided, and an appeal to that effect was allowed. Also to be stated on the face of the judgment, and forming part of the components of the judgment are:

1. The date on which the judgment was delivered.

2. The signature or seal of the court at the time of pronouncing it.

See sections 294 CFRN, 245; 308(1) ACJA; 275 ACJL Lagos and 309 ACJL Kano.

Effect of the Magistrate/Judge Not Signing the Judgment:

In this case, the accused person was convicted of offences of stealing and forgery. There was no signature and date at the foot of the judgment. But the trial magistrate signed and dated an order giving conditions of appeal. This order was recorded immediately below the judgment. The accused appealed against his conviction on the ground that the trial magistrate failed to comply with the provisions of the Criminal Procedure Act because the judgment was not signed and dated. The Appeal Court held that it would have been neater to sign the judgment and the order separately. That notwithstanding, there had been sufficient compliance with the Criminal Procedure Act because the order was made at the time of delivering the judgment, therefore, the judgment has been signed at the time of pronouncing it.

The above case also buttressed this principle that if there is substantial compliance of the requirement about dating and signing of the judgment, and omissions may be considered as a trivial irregularity incapable of vitiating the status of the judgment.

It is worthy of note that a magistrate is permitted to deliver oral judgment, but he shall briefly record same in the book, and where necessary, also to state his reasons for such decision, or record such information in the prescribed form -- section 308 (2) ACJA.

In the case, above the Apex Court held that the judgment of a Magistrate is not invalidated for failure to comply strictly with Section 245 Criminal Procedure Law. Only a minimum compliance is required. The Appellate Court held that this was not sufficient to invalidate the proceedings.

It was also held to be in violation of the repealed section 245 Criminal Procedure Law for a judge of the High Court to deliver judgment based on notes made by him during trial, which notes did not form part of the record of appeal and thereafter write a judgment which formed part of the record of appeal.

In the instant case, the accused person was tried and convicted of an offence under section 115(1) of the Penal Code by the High Court. He appealed against his conviction. It was argued on behalf of the appellant that the judgment of the court was not valid because an oral judgment was delivered (not read from a written decision) by the trial judge. The Supreme Court held that the record of proceedings in the High Court revealed that an oral judgment was delivered. The Apex Court held that it is in contravention of section 268(1) of the Criminal Procedure Code which requires judgment of every trial court to be in writing. Thus, the appeal was allowed and a retrial ordered.

It is important to note that an oral judgment delivered by a judge, which is subsequently reduced into writing after it has been delivered, remains an oral judgment. An appellate court cannot take cognizance of the subsequently written judgment because at the time the judgment was reduced into writing, the court was functus officio. Once a judge or magistrate has pronounced judgment, he becomes functus officio and any judgment reduced into writing or any reason given subsequently are of no effect and cannot be looked at by the Appeal Court. The reason being that once a judge has pronounced judgment, he is functus officio and any judgment reduced into writing thereafter cannot be looked at by the Appeal Court.

In the above case, the accused person was tried and convicted of the offences of uttering. The trial judge delivered an oral judgment from the notes taken down by him during the trial the judgment of the court delivered orally was subsequently reduced into writing, dated and signed. On appeal against conviction, the appellate court held that the judgment of the trial court before it was not a judgment within the meaning of section 245 of the Criminal Procedure Act, because it has been reduced into writing after it has been orally delivered by the judge. The judgment was reduced into writing when the judge was functus officio. Consequently, the appellate court allowed the appellant's appeal and declared null and void the judgment of the trial court.

In the above case, the accused persons were charged and convicted of several offences. In delivering judgment, the trial judge stated that he was reading from notes prepared by his son. The accused persons appealed against the conviction on the ground that the judgment of the trial court was not a judgment within the intendment of Section 245 of the CPA. The appellate court held that the judgment must have been written from the notes after it has been delivered orally, thus, it held that there was a contravention of Section 245 of the Criminal Procedure Act and allowed the appeal.

In the above case, the accused persons were charged and convicted of several offences. In delivering judgment, the trial judge stated that he was reading from notes prepared by his son. The accused persons appealed against the conviction on the ground that the judgment of the trial court was not a judgment within the intendment of section 245 of the CPA. The appellate court held that the judgment must have been written from the notes after it has been delivered orally, thus, it held that there was a contravention of Section 245 of the Criminal Procedure Act and allowed the appeal.

Forms of Judgment:

In the case above, the reason for the judgment was filed later, the appellate court warned against this practice. The court stated that once a judge or magistrate has pronounced judgment, he is functus officio and any judgment reduced into writing or any reasons given subsequently are of no effect and cannot be looked at by the Appeal Court.

It is important to bear in mind that once a judgment is pronounced, the judge or the magistrate becomes functus officio.

Also, it is important to note that a judgment orally dictated in open court to a stenographer to be typed into a written judgment is not a written judgment.

In this case, the accused persons were charged and convicted of manslaughter. The trial judge dictated his judgment to his stenographer in court, and purported that the typed judgment was the written judgment. On appeal against conviction, the Supreme Court held that the judgment dictated in open court to the stenographer was not a written judgment within the meaning of section 245 of criminal Procedure Act.

The Apex Court in allowing the appeal, further held that as the purported judgment typed out by the stenographer was written, dated and signed after the oral judgment had been delivered, it was null, void and of no effect.

A judge may write the judgment after the close of all evidence, subject to any amendment he may wish to make on the bench during or after final addresses. However, he must wait till after the final addresses before he can deliver the judgment.

In the instant case, objections were raised to the judge reading out his judgment immediately after the close of evidence. The appellate court held that a judge may write his judgment after hearing all the pieces of evidence, before address by the counsel. The written judgment may always be amended subsequently on hearing counsel's address.

Judgment must be given on every count where there are more than one count. Also, if the judgment is a judgment of conviction, it shall specify the offence for which and the section under which the defendant is convicted and sentenced.

In the case above, the accused was charged with some counts of stealing for which he was found guilty. The magistrate did not however specify the particular kind of stealing he was talking about; neither did the judge specify the punishment allotted to such counts of which he found the accused guilty. Thus, the appeal was allowed and the accused person discharged and acquitted.

In the instant case, the accused persons were charged and convicted of the offences of conspiracy, stealing and forgery. They appealed against their conviction. Counsel for the second accused person argued, inter alia, that the trial judge failed to consider the evidence adduced in the defence of the accused before entering a conviction. The Supreme Court held that apart from a brief reference to the charge of conspiracy, the trial judge failed to consider the evidence adduced by the prosecutor and the defence raised by the accused. Furthermore, the points for determination, the decision thereon and the reasons for the decisions were not stated, thus, the trial judge did not comply with the provision of Section 245 of the Criminal Procedure Act and the appeal was allowed.

In the above case, an information containing two counts of murder was preferred against the accused person. The trial judge found the accused guilty as charged in his judgment and the accused was sentenced to death. He appealed against the judgment of the court. The Appeal Court held that it was sufficiently clear from the record that the judge's pronouncement of guilty as charged referred to the two counts of murder. The appellate court, however, held that the trial judge erred in law in failing to return a sentence in respect of both counts. The irregularity was rectified by the Appeal Court pronouncing sentence in respect of the second count.

The judge must convict the defendant before sentence.

In this case, the judge did not convict the accused on some of the counts before passing sentence. The sentence was held null and void. The appellate court also held that where there are more than one accused, a separate verdict must be returned in respect of each accused person.

In this case, the accused persons were charged with culpable homicide punishable with death. The trial judge found them guilty as charged and sentenced them to death. The accused persons appealed against the sentence of the court on the ground, inter alia, that no verdict of guilty was entered before sentence was passed. The Appeal Court, while dismissing their appeal, held that a conviction was entered against the accused persons by the trial court, because there was evidence on the record which showed that the trial judge found the accused persons guilty as charged.

It is also important to know that under the circumstances stated in Section 236 ACJA and 314 ACJL Kano, judgment may be delivered on a charge for which the defendant was not tried e.g. where evidence led though insufficient for the conviction of the offence charged but is nonetheless sufficient for the conviction of lesser offence not charged. Section 236 (2) ACJA.

In the case above, the court held, inter alia, that the accused is necessarily deemed to have notice of the lesser offence though not charged for it where he has notice of the greater or aggravated offence. Consequently, it does not amount to denial of fair hearing. Parties need not also be called to address before conviction.

In the instant case, the accused person was charged with the offences of uttering counterfeit currency and of possessing counterfeit currency knowing them to be counterfeit contrary to Section 5 of the Counterfeit Currency (Special Provisions) Act 1974. The section provides that anyone convicted of the offence is liable to imprisonment for 21 years. The accused was convicted of the offences charged and sentenced to 21 years' imprisonment. The accused appealed

against his conviction, but not against sentence.

The Supreme Court dismissed the appeal against conviction on the ground that there was evidence on which the appellant could be convicted. The Apex Court commented on the heavy sentence imposed on the appellant. It observed that the appellant being an 18-year old first offender was supposed to have been given a lighter sentence. The court noted that the maximum sentence prescribed for an offence is not obligatory sentence for the offence. The court has the discretionary power to impose any sentence less than the maximum sentence prescribed for the offence. The Apex Court stated that a lesser sentence would have been appropriate in this case but since there was no appeal against sentence, the court would not interfere with the sentence of the lower court, consequently, the appellant's appeal was dismissed.

Taking Other Offences into Considerations:

A court may, in passing sentence on a defendant , take into

consideration any other charge that is pending against the defendant if:

(i) The defendant admits the other charge and desires that it be taken into consideration; and

(ii) If the prosecutor of the other charge consents -- section 313 ACJA; section 314(1) ACJL Kano.

It is important to know that in taking another offence into consideration, a court must not pass a greater sentence than the maximum sentence for the offence. When an offence has been taken into consideration before sentencing, the defendant shall not be liable thereafter to be charged or tried in respect of any such offence so taken into consideration, unless the conviction, which has been had, is set- aside on appeal. See section 313 ACJA, which, of course, is subject to sections 236 to 237 of same Act

The effect will depend on the circumstances of the case. In some cases, a retrial is ordered while in others, the defendant is discharged and acquitted. Where the defendant had served part of the sentence, he is usually discharged.

In the case above, the Appeal Court held that it would be unjust to order a retrial where the appellant had already spent five months in prison, that is to say that the Appellate Court took into consideration the other lesser offence for which the accused person had spent five months in prison already.

There are circumstances under which a retrial will be ordered, and they include:

(i) That leaving the error or irregularity in the proceedings, the evidence taken as a whole discloses a substantial case against the appellant.

(ii) That there are no special circumstances as would render it oppressive to put the appellant on trial a second time.

(iii) That the offence(s) for which the appellant was convicted or the consequences to the appellant or any other person of the conviction or acquittal of the appellant are not merely trivial.

(iv) That to refuse an order for retrial would occasion a greater miscarriage of justice than to grant it.

The foregoing cases buttressed the principle on the right of the court to grant a retrial where it deems fit and proper, and especially, where any of the circumstances that admit of a retrial order is found to exist.

The foregoing cases buttressed the principle on the right of the court to grant a retrial where it deems fit and proper, and especially, where any of the circumstances that admit of a retrial order is found to exist.

The foregoing cases buttressed the principle on the right of the court to grant a retrial where it deems fit and proper, and especially, where any of the circumstances that admit of a retrial order is found to exist.

The foregoing cases buttressed the principle on the right of the court to grant a retrial where it deems fit and proper, and especially, where any of the circumstances that admit of a retrial order is found to exist.

The foregoing cases buttressed the principle on the right of the court to grant a retrial where it deems fit and proper, and especially, where any of the circumstances that admit of a retrial order is found to exist.

In the above case, Sowemimo JSC observed thus:

"With respect to the learned trial judge in this case, we feel that the use of the expression 'I believe' and 'I do not believe' without really evaluating the evidence of vital witnesses does not estop an appellate court from evaluating the evidence and seeing whether there is any justification for the use of such expressions."

In the case above, the accused persons were charged and convicted of the offences of conspiracy, stealing and forgery. They appealed against their conviction. Learned counsel for the second accused argued that the trial judge failed to consider the evidence adduced in defence of the accused before entering a conviction. The Supreme Court held that apart from a brief reference to the charge of conspiracy, the trial judge failed to consider the evidences adduced by the prosecutor and the defence raised by the accused person. Furthermore, the points for determination, the decision thereon and the reasons for the decisions were not stated. Thus, the trial judge did not comply with section 245 of the criminal Procedure Act. Therefore, the appeal was allowed.

In this case, the accused person was convicted of offences of stealing and forgery. There was no signature and date at the foot of the judgment. But the trial magistrate signed and dated an order giving conditions of appeal. This order was recorded immediately below the judgment. The accused appealed against his conviction on the ground that the trial magistrate failed to comply with the provisions of the Criminal Procedure Act because the judgment was not signed and dated. The Appeal Court held that it would have been neater to sign the judgment and the order separately. Nonetheless, there had been sufficient compliance with the Criminal Procedure Act because the order was made at the time of delivering the judgment, therefore, the judgment had been signed at the time of pronouncing it.

In the case above, the accused persons were convicted of the offence of wilful and unlawful damage to property. They appealed against their conviction on the ground that the judgment of the trial magistrate was not signed and dated at the time of pronouncing it. Their appeal to the High Court succeeded. The prosecutor appealed successfully to the Appeal Court. on further appeal by the accused persons to the Supreme Court, the Apex Court held that since the order was pronounced at the time of delivery of the judgment, the signature and date appearing at the foot of the order related to the order and the judgment. The appellate court held that there had been compliance with the statutory provisions. Thus, the appeal was dismissed.

In this case, the accused person was charged with criminal breach of trust and he was convicted. He appealed against his conviction to the Appeal Court, and his appeal was dismissed. On further appeal to the Supreme Court, it was contended that the trial judge failed to comply with section 269(1) of the Criminal Procedure Code in delivering judgment because after reviewing the evidence of the prosecution and before the evidence of the defence was reviewed, he stated that he found certain evidence established. Thus, it was argued that the appellant suffered a miscarriage of justice. The appeal was dismissed by the Supreme Court. The Apex Court held that the trial judge adequately considered the case of both the prosecution and the defence, and held that there was no miscarriage of justice.

In the instant case, the accused person was sentenced to death for murder. The accused appealed against his sentence on the ground that the trial judge failed to enter a conviction against him before passing sentence. The West African Court of Appeal held that although, there was no formal verdict of guilty of murder on the record, there was sufficient evidence on the record to show that the judge found the accused person guilty of murder before passing a sentence of death. Thus, the appeal was dismissed.

In this case, the accused persons were charged with culpable homicide punishable with death. The trial judge found them guilty as charged and sentenced them to death. The accused persons appealed against the sentence of the court on the ground that no verdict of guilty was entered before sentence was passed. The Appeal Court, while dismissing their appeal, held that a conviction was entered against the accused persons by the trial court, because there was evidence on the record which showed that the trial judge found the accused persons guilty as charged.

In the instant case, the sentence passed on the accused person was set aside because no conviction was entered against him before sentence was passed.

In this case, six persons were charged with several counts in an information. They were convicted. They appealed against their conviction. The Supreme Court held that where an information contains several counts against several accused persons, separate verdict must be entered in respect of each of the accused persons on each count.

In the above case, a charge containing 17 counts was preferred against the accused person. He was convicted. He appealed against his conviction, contending that the trial magistrate did not specify on which counts he was found guilty and the sentence passed on each count. The High Court held that a separate verdict ought to have been returned in respect of each count and a sentenced passed in respect of each count on which a conviction was recorded.

Thus, the appeal was allowed.

In the above case, an information containing two counts of murder was preferred against the accused person. The trial judge found the accused guilty as charged in his judgment and the accused was sentenced to death. He appealed against the judgment of the court. The Appeal Court held that it was sufficiently clear from the record that the judge's pronouncement of guilty as charged referred to the two counts of murder. The appellate court, however, held that the trial judge erred in law in failing to return a sentence in respect of both counts. The irregularity was rectified by the Appeal Court pronouncing sentence in respect of the second count.

In the instant case, the accused person was charged with murder. He was tried and at the conclusion of hearing, the trial judge reserved judgment sine die. Judgment was delivered 12 months after the conclusion of the hearing. The accused was convicted and sentenced to death. The appellant appealed against his conviction. Although, the appellant's appeal was dismissed. The appellate court noted with disapproval, the delay in delivering judgment. Oyemade JA delivering the judgment of the court observed that:

*It is desirable in a case, that neither the prosecution nor the judgment should be unduly delay in view of the mental agony of the accused person for his life and of the fact that impressions get blurred with time.

In the instant case, judgment was delivered by the trial judge 93 days after the hearing of final address. On an application to nullify the judgment of the lower court, counsel contended that the judgment must be delivered within three months of the delivery of final addresses. The court rejected counsel's contention, and held that the CFRN 1979 having come into effect on October 1 1979 (now 1999 CFRN) anything provided thereunder would begin to run from that date. The court stated that as the judgment was reserved for delivery before coming into effect of the Constitution, the trial judge was not bound by the constitutional provision. Thus, the application was dismissed.

In this case, the accused person was charged with culpable homicide punishable with death. After the conclusion of evidence and final addresses, judgment was reserved. Eventually, judgment was delivered five months after the hearing of final addresses. The accused was found guilty and sentenced to death. On appeal against conviction on the ground that the judgment of the court was delivered outside the prescribed three months' time limit, the Appeal Court held that a State High Court being a court created by the Constitution was bound by the provisions to deliver its judgment within three months. The failure of the State High Court to deliver its judgment within the specified months was a contravention of the constitutional provision.

In this case, the Appeal court delivered judgment in a civil matter before it seven months and three weeks after the hearing of final addresses by the parties to the appeal. On appeal against the judgment of the Appeal Court on the ground that it was delivered outside the prescribed time limit, the Supreme Court accepted counsel's contention.

In the instant case, the judgment of the Lagos High Court was delivered almost six months after hearing final address. The Supreme Court held that the judgment was delivered outside the prescribed time limit.

In the instant case, on an appeal in an action for declaration of tile to land from an Upper Area Court to a State High Court were addresses were delivered on May 2, 1980, the court sought the addresses of counsel on its intention to secure the services of translators to translate some exhibits written in Yoruba into English. Addresses were delivered by counsel on July 25, 1980. Judgment was subsequently delivered on August 7, 1980. On appeal, it was contended that the judgment of the High Court was delivered outside the prescribed three months. The Supreme Court unanimously rejected counsel's contention.

The Apex Court held that the final addresses were the addresses of July 25, 1980, and that the final addresses were in order as they were delivered before the expiration of the three months prescribed limit. The Apex Court stated that the trial judge delivered his judgment on August 7, 1980, 13 days after hearing the final addresses, the judgment of the court was delivered within three months. Thus, the appeal was dismissed.

In this case, addresses were give before the trial judge on 19 July 1984 and judgment was reserved. On October 4 1984, an application to amend the plaintiff's statement of claim was granted. After amendment of the statement of claim, further addresses were taken on 17 October as final address. Judgment was delivered within the prescribed three months limit. The Supreme Court held that the final addresses of the 17 October were delivered before the expiration of the three months limit and were therefore valid. The judgment of the court delivered 23 days after delivery of final addresses was delivered within time and was thus valid.

In the above case, addresses were delivered on 23 March 1983 by parties to the appeal in the Appeal Court. On July 28, the Appeal court invited further addresses. Judgment was delivered on 29 September 1983. On appeal against the judgment of the court on the ground that judgment was delivered outside the prescribed period of three months, the Supreme Court held that on 28 July when further addresses were delivered, the Appeal Court was incompetent to hear further addresses as the prescribed period of three months had elapsed at the time further address were invited. Therefore, the Apex Court held that final addresses were delivered on 23 March 1983, and not on 28 July 1983. The delivery of judgment on 29 September 1983 was therefore outside the prescribed time limit of three months, as judgment was delivered 190 days after hearing not final addresses.

The appeal was allowed.

In this case, the trial judge heard addresses from counsel to both parties on November 13, 1980. Judgment was reserved. On March 4, 1981, the trial judge informed the parties that he ran into some difficulties in the course of the preparation of the judgment and would like counsel to address him further on some points. The further address took place on April 8, 1981 and judgment was finally delivered on June 3, 1981. On appeal against the judgment of the court on the ground that it was delivered outside the prescribed time limit, the Appeal Court held that the final addresses were the addresses of November 13, 1980. The court was incompetent to receive the subsequent addresses of April 8, 1981, because at the time it invited the addresses, the prescribed period of three months had elapsed.

The Appeal Court concluded that judgment delivered on June 3, 1981 when final addresses were heard on November 13 was delivered 200 days after the delivery of final addresses and was delivered out of time.

In the case above, the Supreme Court held that non-compliance with the provision of Section 258(1) of CFRN 1979 (now section 294(1) CFRN 1999) was a mere irregularity and would not invalidate the judgment.

In the above case, the appellant contended that the decision of the Appeal Court was void on the premise that the court failed to furnish him with an authenticated copy of the judgment on the day of delivery of the judgment. The Supreme Court rejected the appellant's contention. The Apex Court held that provisions of section 285(1) CFRN 1979 (now section 294(1) of the 1999 Constitution) are directory and not mandatory.

In the instant case, judgment was delivered and the court failed to furnish the appellant with an authenticated copy of the judgment on the day judgment was delivered. The appellant aggrieved, appealed to the Court of Appeal. The Court of Appeal dismissed his appeal. Further aggrieved, he appealed to the Supreme Court. The Supreme Court held that the provisions relating to furnishing authenticated copies of judgment were directory and not mandatory. The Apex Court further held that non-compliance with the provision does not amount to a miscarriage of justice which would warrant the decision of a court to be set aside.

In this case, the appellant appealed against the judgment of the Appeal Court on the ground that only one judge of the Court read and delivered his judgment. The other two judges did not deliver their judgment, neither was there a statement that they adopted the judgment delivered by the judge who delivered the written judgment. The Supreme Court held that the record showed that the three justice who heard the appeal sat and delivered judgment. One of the judges delivered a written judgment, while the other two justices concurred with the written judgment. The Apex Court held that there was compliance with the provision of section 258(2) of the CFRN 1979 (now section 294(2) of the CFRN 1999). Consequently, the appeal was dismissed.

In the above, case, the judge delivered judgment against the plaintiff. After delivering judgment, he discovered that the judgment contained some fundamental errors. He visited the defence counsel's chambers and invited him to attend court to hear an amended judgment. Counsel to the parties attended court and an amended judgment was delivered. On appeal against the amended judgment, the Supreme Court held that the judge was functus officio at the time he delivered the amended judgment. Therefore, the amended judgment was declared a nullity. The court ordered that the two judgments, the original and the amended one be set aside and a retrial was ordered.

When an accused person has been convicted for an offence, the magistrate or judge must pass a sentence on him. The sentence passed must be duly prescribed for the offence under the statute creating it. The sentences provided for under the law are death, imprisonment, fine, caning, haddi lashing and forfeiture.

In this instant case, the punishment section provides that an offender shall be liable to a fine of 6 times the value of the goods. The magistrate imposed a fine of 3 times the value of the goods involved. The appellate court held that the magistrate had discretion as to the punishment to give to an accused person (it may be less than the prescribed maximum but never more) and if properly exercised same would not be overturned by the appellate court.

Worthy of note is the fact that there are some offences that carry mandatory sentences. For example, the capital offences.

*Death Sentence:

Death sentence is mandatory for capital offences, such as, murder, culpable homicide punishable with death, treason, armed robbery, instigating invasion of Nigeria, treachery etcetera. In these offences, a judge is ousted of the discretionary powers in the matter after an accused person has been found guilty of the capital offence. The only sentence open to the court to impose is that of death. In other words, where a sentence of death has been passed, such sentence shall only be carried out in accordance with the provision of the law. This the court decided in the above cases. See also the provision of Section 368 ACJA.

The Forms of Pronouncing The Sentence:

There are various forms of pronouncing death sentence on a convict. The correct and right forms is according to the various forms provided under the provisions of ACJL and ACJA in pronouncing death sentence.

By the provision of section 310(2), ACJL Lagos, it shall be pronounced as follows:

"The sentence of this court upon you is that you will be hanged by the neck until you be dead and may the Lord have mercy on your soul". Section 301(2) ACJL Lagos.

Under the ACJA, section 402 (2) it provides as follows:

"The sentence of this court upon you is that you will be hanged by the neck until you are dead or by lethal injection".

Under ACJL Kano, the punishment of death shall be inflicted by a method pronounced by the court. Section 396 ACJL Kano.

*Death Sentence:

Death sentence is mandatory for capital offences, such as, murder, culpable homicide punishable with death, treason, armed robbery, instigating invasion of Nigeria, treachery etcetera. In these offences, a judge is ousted of the discretionary powers in the matter after an accused person has been found guilty of the capital offence. The only sentence open to the court to impose is that of death. In other words, where a sentence of death has been passed, such sentence shall only be carried out in accordance with the provision of the law. This the court decided in the above cases. See also the provision of Section 368 ACJA.

When a person is sentenced to death, the court must direct that he be hanged by the neck till he is dead. It is important to know that failure of the court to pronounce a sentence of death in the stipulated form is a mere irregularity which does not invalidate the judgment provided it is clear from the record that a sentence of death was passed on conviction.

In the instant case, the accused person was convicted of murder. He appealed against conviction on the ground that the sentence of the court was not pronounced in the stipulated form as contained in section 367(2) of the Criminal Procedure Act. The Supreme Court held that the record of proceedings in the trial court showed that the trial judge stated that sentence of death was pronounced on the accused person. The Apex Court in dismissing the appellant's appeal, further held that there was sufficient compliance with the provisions of the law; that a judge is not bound to comply strictly with the form, although, it is very desirable as such failure may raise an apprehension in the mind of the defendant that it could be carried out in another way.

In the above case also, the court said, "Sentence of death passed". The appellate court held that such form did not affect the sentence.

See also the Criminal Law and Procedure of the Southern States of Nigeria by T. A. AGUDA at p. 213 where it is said that:

"Failure of the trial judge to record sentence along the lines of the provision of the Act is a mere clerical error which the Supreme Court acting under section 26(3) of the Supreme Court Act would direct the trial judge to correct."

This case of Ejelikwu v. State above is to the same effect, that is, that it also buttressed the point and principle that while it will be better and safer that the courts adopt and adhere to the statutorily prescribed form, substantial compliance with the prescribed form to the extent that leaves no one in doubt that the sentence is one death, will suffice.

Also to know is that a death sentence in a case of armed robbery is by firing squad.

General Exceptions to Death Sentence:

It is important to note that there are categories of persons exempted from death sentence. They are:

(1) Pregnant woman. A pregnant woman shall not be sentenced to death but in lieu, she shall be sentenced to imprisonment for life. Section 302(2) ACJL, Lagos. But under section 404 ACJA, the sentence of death shall be passed on a pregnant woman convict, but the execution shall be suspended until the baby is delivered and weaned. Where a woman is found to be pregnant, the court shall sentence her to death subject to her delivery and observing weaning period of two years. Section 408(4) ACJL Kano.

(2) Young persons who have not attained the relevant age at the time the offence was committed.

In this case, the Supreme Court held that:

"By virtue of Section 368 Criminal Procedure Act, if the evidence on record shows that at the time the offence was committed, an accused charged with capital offence has not attained the age of 17 years, it will be wrong for any court not only to sentence him to death but also to even pronounce or record such sentence."

The Court shall however, in this circumstance, detain such young person at the pleasure of the President or Governor. Section 405 ACJA provides that the court shall sentence the child to life-imprisonment or to such other term as the court may deem appropriate. Under the ACJL Kano, where a child is alleged to have committed an offence, the provisions of the Children and Young Persons Law may apply. Section 435(1) ACJL, Kano.

It is pertinent to note that:

(i) Imprisonment is a punishment meted out to a convict for an offence committed. And convicted for. It may be either with or without hard labour as the court may order, subject to the express provisions of any written law providing imprisonment as a punishment for an offence.

(ii) A sentence of imprisonment can be imposed on an accused person already serving a prison term of imprisonment. Such a sentence may be ordered to commence at the expiration of a current sentence. See Section 418 ACJA. This provision anticipates that a competent court must have previously sentenced the defendant different from the court imposing the new punishment.

In this case, the court held that the new term could not be ordered to commence at the expiration of more than one term of imprisonment. The court convicting on more than one count has power to pass two or more sentences. But the aggregate shall not be more than 4 years or the limit of the jurisdiction to punish.

In other words, by virtue of the provision of section 380 of the CPA as to whether the magistrate can exceed the maximum punishment he is allowed under the law to impose. The section provides thus:

Where a sentence of imprisonment is passed on any person by a court, the court may order that the sentence be commenced at the expiration of any other term of imprisonment to which that person has been previously sentenced by any competent court. Where however, there are two or more sentences passed by a Magistrates' Court are ordered to run consecutively, the aggregate term of imprisonment shall not exceed four years or the limit of jurisdiction of the court whichever is greater.

Section 380 of the CPA has been interpreted by the courts who have held that the provisions of the section are general provisions, and must be read subject to specific provisions of subsequent enactments. The section permits a Magistrates' Court to impose a sentence up to the limit of its jurisdiction or to a term of four years, whichever is greater when the provisions of the section are read subject to the provisions of the Magistrates' Court Law, each grade of the magistrate can impose only a sentence up to the maximum provided by the Magistrates' Court Law.

In the instant case, the accused person was arraigned before a Magistrates Grade 11 Court on a charge containing three offences. The maximum punishment which the magistrate could impose under the then Magistrates' Court Law was one year's imprisonment or a fine. The accused was convicted and the magistrate passed consecutive sentences on each of the three counts totaling two years. The accused was sentenced to two years' imprisonment. He appealed against his conviction contending that the magistrate exceeded the maximum punishment permitted by law so to do. The appellate court allowed his appeal and reduced the sentence stating that the magistrate cannot impose a term of imprisonment in excess of that permitted under the Magistrate's Court Law.

In this case the accused was arraigned before a Magistrate Grade 1 Court on a charge containing three offences. The maximum term of imprisonment which the court was permitted under the then Magistrates' Court Law to impose was two years. The magistrate imposed terms of imprisonment totaling four years. On appeal, the appellate court allowed the appeal and reduced the sentence to two years.

In the instant case, a Magistrate Grade 111 Court with jurisdiction to impose a maximum fine of N50 convicted an accused on a charge containing seven offences. It imposed a fine of N102. On appeal, the fine was reduced to N50.

Note that the new subsection 5 of section 4 substituted for the old one by Administration of Justice (Miscellaneous Provisions Amendment) Law: 1981 Lagos State. See also Sections 419 ACJA, 2015.

The court has the general power to impose a fine. In Magistrates' Courts, the amount of fine to be imposed, though shall be in the discretion of the magistrate, it shall not exceed the maximum fine the magistrate is authorized to impose by law. A court is permitted to impose a sentence of fine instead of a term of imprisonment even where the statute creating the offence provides only for a term of imprisonment. This is a discretion vested in the court. The power of the court to impose a fine instead of imprisonment under the Criminal Procedure Code does not apply in any case where the written law creating the offence prescribes a minimum period of imprisonment for the offence.

It is important to know that there are two conflicting decisions of the Appeal Court on the issue on the effect of an express provision in a statute creating an offence stipulating that the court has no power to impose a fine in lieu of the stipulated term of imprisonment in view of the provisions of the principal enactment.

In the above case, the accused person was charged with hoarding contrary to section 7 of the Price Control Act 1977. The punishment for the offence as prescribed in the statute is imprisonment for not less than six months without the option of a fine. The accused person was convicted and sentenced to six months' imprisonment with an option of fine. The prosecutor appealed against the sentence on the premise that it was contrary to the mandatory sentence of imprisonment prescribed in the statute creating the offence. The Appeal court held that despite the mandatory provision of the statute creating the offence, the court has a discretion to impose a fine in lieu of imprisonment where no option of fine is provided by virtue of Section 382 of the Criminal Procedure Act. Consequently, the appeal was dismissed.

In this case, the accused was charged with unlawful importation of prohibited goods contrary to section 44(1) (b) of the Customs and Excise Management Act 1958. The punishment prescribed for the offence was imprisonment for five years without the option of a fine. The accused was convicted and sentenced to two years' imprisonment. He appealed against his conviction.

On the issue of sentence, the Appeal Court observed that the discretionary power vested in the court to impose a fine in lieu of sentence by section 382(1) of the Criminal Procedure Act had been negated by the specific provision of the Customs and Excise Management Act, which provides that the sentence of imprisonment must be without the option of a fine. The appellate court held that where a specific provision contradicts a general provision, the specific provision shall prevail. Therefore, the court held that the trial court had no power to impose a fine, thus the appellant's appeal was dismissed.

Also worthy of note is that:

• Where imprisonment is imposed in default of a payment of fine, it will not exceed the limits. See section 74 Penal Code. See also Section 420 ACJA.

• Where a written law prescribes a minimum period of imprisonment, a fine in lieu cannot be substituted.

The sentence prescribed for an offence may be a fine, or imprisonment or both. The court may also impose a sentence of a fine in lieu of imprisonment where a sentence of imprisonment is prescribed for the offence. For most offences under the principal criminal enactments - the criminal and Penal Code - the prescribed sentence is imprisonment or a fine or both. It is important to know that where the sentence prescribed for an offence is imprisonment or a fine or both, a sentence of a fine would not be important.

Where only a sentence of fine is prescribed for an offence, it is imperative that such a sentence must be imposed by the court. In imposing a sentence of fine, the court should consider the financial means of the convict. A heavy fine should not be imposed on a man of low or modest income. If a heavy fine is imposed on a convict of low income, the imposition of the fine would become imaginary. This is because his inability to pay the fine would automatically lead to a default, and where he defaults in the payment, he would have to serve a term of imprisonment.

In the above case, the accused persons were charged, inter alia, with the offence of rioting and unlawful damage to property resulting from the riot. They were convicted and sentenced to pay a fine of N200 each. The accused persons were all elderly men. They appealed against their conviction. The High court held that the magistrate was not properly guided by the provisions of Section 391 of the Criminal Procedure Act in imposing the fine of N200 on the accused persons considering their old age with modest income. The appellate court held that the option of a fine was imaginary if a convicted person has no means of paying it. The court allowed the appellants' appeal on sentence and reduced the fine to N100, in default of which the appellants would go to prison for four months.

It is important to note also: limitation on amount. Payment may be made by instalments. Recovery of Fine by distress, see Section 434 ACJA. For General power to order - imprisonment in default of payment, see Section 75 Penal Code, for limitation on term of imprisonment. See section 74 Penal Code. See also Sections 424 & 425, ACJA.

What is the meaning of the term, deport? When may deportation be recommended?

The term, deport, means to transport, carry away to exile, to send into banishment, expulsion from a country of an undesirable alien. It may be recommended where a person or persons are no longer needed in a particular country.

It is important to note the clear provision of section 41 of the 1999 Constitution of the Federal Republic of Nigeria which provides that every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof, and no citizen of Nigeria shall be expelled from Nigeria and/or refused entry thereto or exit therefrom. Also important to note is the second Schedule, section 18 of the 1999 Constitution.

In the instant case, the Immigration Officers arrested Alhaji Shugaba Darman on the strength of a deportation order signed by the Federal Minister of Internal Affairs. The deportation Order stated amongst other things, that Alhaji Darman at present in Nigeria ought to be classified as a prohibited immigrant and also that he be deported from Nigeria by the first available means. His deportation order was as a result of him being regarded as a threat by the ruling party of the time. He was a charismatic politician who attracted large crowds at political rallies, the crowds were drawn to his speeches in which he criticized the ruling NPN government. He was also the Great Nigeria People's Party (GNPP) Majority leader in in the Borno State House of Assembly.

Alhaji Darman was promptly deported to a village in Chad, the government claiming Shugaba's father was a Chadian, and hence, he was from Chad. In response to the public outcry against the obviously political motivated deportation, the government instituted a one-man tribunal of inquiry presided over by Justice P. C. Okanbo. The NPN government and president were concerned about the negative press that the issue was generating and also about allusions in the press to the partiality of the tribunal. Shugaba's lawyer challenged the deportation Order, and he obtained an order restraining the tribunal of inquiry from sitting and enforcing Shugaba's right to freedom of movement within Nigeria, a fundamental right guaranteed by the Constitution of the Federal Republic of Nigeria.

During the hearing of the case, the government brought a Chadian woman who claimed that Shugaba was her biological son who she wanted back. Shugaba denied knowing the woman and claimed that his mother was alive and well known in Maiduguri even though her sight was poor.

The Maiduguri trial High Court ruled in Shugaba's favour; revoked the deportation Order and awarded damages to him. The government appealed against the verdict of the trial court at the Court of Appeal, Kaduna and lost. The government, aggrieved, further appealed to the Apex Court wherein the Apex Court unanimously affirmed the verdict of the lower courts.

Restitution is the act of restoring anything to its rightful owner, or of making good, indemnifying, compensating for loss or injury, or giving an equivalent for any loss, damage.

In the above case, the Apex Court stated that after a careful consideration of the pieces of evidence adduced before the trial court, it cannot accept the view of the Appeal Court that the prosecution did not establish that the complainant is entitled to the properties restored to him by the orders of the trial court wherein the trial court came to an irresistible conclusion that the appellants' properties in issue were properties into which the complainants plugs had been converted which the appellants failed to give any reasonable explanation on how they acquired the properties.

Right of Appeal:

An appeal is any proceeding taken by an aggrieved party to rectify an alleged erroneous decision of a court by bringing the decision before a higher court. It may be as of right or only with the leave of the court as provided under Sections 241 and 242 of the 1999 Constitution of the Federal Republic of Nigeria.

The Courts in the above cases held that a right of appeal is usually created by statute (the Constitution of the Federal Republic of Nigeria) and where there is no provision for appeal in the statute creating rights of appeals, no such right exist, and the aggrieved party cannot appeal against the decision of the trial court.

Right of Appeal:

An appeal is any proceeding taken by an aggrieved party to rectify an alleged erroneous decision of a court by bringing the decision before a higher court. It may be as of right or only with the leave of the court as provided under Sections 241 and 242 of the 1999 Constitution of the Federal Republic of Nigeria.

The Courts in the above cases held that a right of appeal is usually created by statute (the Constitution of the Federal Republic of Nigeria) and where there is no provision for appeal in the statute creating rights of appeals, no such right exist, and the aggrieved party cannot appeal against the decision of the trial court.

Right of Appeal:

An appeal is any proceeding taken by an aggrieved party to rectify an alleged erroneous decision of a court by bringing the decision before a higher court. It may be as of right or only with the leave of the court as provided under Sections 241 and 242 of the 1999 Constitution of the Federal Republic of Nigeria.

The Courts in the above cases held that a right of appeal is usually created by statute (the Constitution of the Federal Republic of Nigeria) and where there is no provision for appeal in the statute creating rights of appeals, no such right exist, and the aggrieved party cannot appeal against the decision of the trial court.

Right of Appeal:

An appeal is any proceeding taken by an aggrieved party to rectify an alleged erroneous decision of a court by bringing the decision before a higher court. It may be as of right or only with the leave of the court as provided under Sections 241 and 242 of the 1999 Constitution of the Federal Republic of Nigeria.

The Courts in the above cases held that a right of appeal is usually created by statute (the Constitution of the Federal Republic of Nigeria) and where there is no provision for appeal in the statute creating rights of appeals, no such right exist, and the aggrieved party cannot appeal against the decision of the trial court.

Right of Appeal:

An appeal is any proceeding taken by an aggrieved party to rectify an alleged erroneous decision of a court by bringing the decision before a higher court. It may be as of right or only with the leave of the court as provided under Sections 241 and 242 of the 1999 Constitution of the Federal Republic of Nigeria.

The Courts in the above cases held that a right of appeal is usually created by statute (the Constitution of the Federal Republic of Nigeria) and where there is no provision for appeal in the statute creating rights of appeals, no such right exist, and the aggrieved party cannot appeal against the decision of the trial court.

Appeal lies from Magistrates' Court of a State to the High Court of that State. By virtue of the provision of Section 272 CFRN, 1999 (as amended), and subject to the provisions of Section 251 and other provisions of the Constitution, the High Court of a state is imbued with jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.

Section 279(1) of the Criminal Procedure Code provides that appeals from a Magistrates' Court to the High Court must be in accordance with the Constitution. See Magistrate and High Court Laws of the various States. Save where there are express provisions in any other enactment, it cannot be stated whether an appeal from a subordinate court such as a Magistrates' Court to the High Court lies as of right or with leave of the court. Note section 460 ACJL, Kano - Whether leave of court would be required in some cases. There is no provision prescribing this.

In the above case, the appellants were discharged of charges filed against them, but were ordered to be of good behavior. They appealed against the order of the magistrate to the High Court. The State objected to the appeal on the ground that the appeal did not lie as of right. It cited section 53 of the Constitution of the Eastern Nigeria 1963. Appellant counsel replied that as the Constitution of Eastern Nigeria 1963 had been repealed, and there was no equivalent provision in the 1979 Constitution, the court had a discretion whether or not to entertain the appeal. The trial judge overruled the submission of counsel for the appellant and relying on the provisions of the repealed Constitution of Eastern Nigeria, held that an appeal lies only with leave of the High Court. However, the submission of the appellant counsel in the case above represents the law. It has been suggested that in the absence of statutory and constitutional provisions as to whether an appeal from the Magistrates' Court lies as of right or with leave, it should be deemed to lie as of right.

Circumstances that constitute a good ground from Magistrates' Court to High Court include;

• That the court below has no jurisdiction in the case.

• That the court below exceeded its jurisdiction in the case.

• That the magistrate was personally interested in the case.

• That the magistrate acted corruptly or maliciously in the case.

• That the decision has been obtained by fraud.

• That the case has already been heard or tried and decided by or forms the subject of a hearing or trial pending before a competent court, provided that it is not competent for the Appeal Court to entertain as a ground of appeal the special plea of autre-fois acquit or autre-fois convict unless such special plea was pleaded in the court below.

• That admissible evidence has been rejected, or inadmissible evidence has been admitted by the court below and that in the latter case, there is no sufficient admissible evidence to sustain the decision after rejecting such inadmissible evidence.

• That the decision of the court is unreasonable or cannot be supported having regard to the evidence.

• That the decision is erroneous on point of law.

• That some other specific illegality not earlier mentioned and substantially effecting the merits of the case has been committed in the course of the proceedings in the case.

• That the sentence passed on conviction is excessive.

Pleading guilty & appealing against conviction later:

It is important to note the fact that where there is doubt as to whether the thing found in possession of the accused person was that tendered in court, the doubt should be resolved in favour of the accused, even if the accused pleads guilty to the charge and admits the facts stated by the prosecution, the court should not convict.

In the above case, the accused person was convicted on his plea of guilty of possessing forged currency. Evidence showed that the currency notes tendered at the trial were genuine. There was, however, doubt as to whether the genuine currency was that found in possession of the accused. The appellate court held that the doubt ought to have been resolved in favour of the accused. The court assumed that the currency found in the possession of the accused person was genuine and the appeal was allowed.

Where expert evidence is required to establish the ingredient of an offence, the court must not convict an accused person on his plea of guilty in the absence of such evidence. A contravention of this requirement can constitute a good ground of appeal.

In this case above, the accused person pleaded guilty to a charge of being in possession of Indian hemp. He was convicted on his plea of guilty. On appeal against conviction, the appellate court held that the conviction could not stand because the plants alleged to be Indian hemp were not tendered in evidence. Furthermore, there was no expert evidence in the form of a Government chemist's report, certifying the plants as Indian hemp. Consequently, the appellant's appeal was allowed and a retrial ordered.

It is important to know that upon a plea of guilty, the prosecution should go ahead and present all the facts constituting the offence and the defendant must also admit them. A conviction on a plea of guilty without compliance with this procedure is wrong. Consequently, a defendant can appeal on this ground.

Appeal from Magistrates' Courts by the PROSECUTOR:

The prosecution may appeal as of right against the decision of a Magistrate in the following cases:

(i) Where an order of acquittal or discharge has been made on the ground > that the order is erroneous in law that the proceedings or any > part thereof is in excess of jurisdiction. See section 57 > Magistrate's Court Law (Lagos) 2009 and section 460 ACJL, Kano.

(ii) Where a Magistrate has imposed a sentence below the minimum or > above the maximum permitted by law. See section 57(b) > Magistrate's Court Law (Lagos) 2009.

It was decided in these cases that, for the Prosecutor, there are no right of appeal in other cases, e.g. inadequacy of sentence or punishment or against grant of bail.

Appeal from Magistrates' Courts by the PROSECUTOR:

The prosecution may appeal as of right against the decision of a Magistrate in the following cases:

(i) Where an order of acquittal or discharge has been made on the ground > that the order is erroneous in law that the proceedings or any > part thereof is in excess of jurisdiction. See section 57 > Magistrate's Court Law (Lagos) 2009 and section 460 ACJL, Kano.

(ii) Where a Magistrate has imposed a sentence below the minimum or > above the maximum permitted by law. See section 57(b) > Magistrate's Court Law (Lagos) 2009.

It was decided in these cases that, for the Prosecutor, there are no right of appeal in other cases, e.g. inadequacy of sentence or punishment or against grant of bail.

It is important to note that it is only a party who is dissatisfied and/or aggrieved with the decision of a trial court that has the legal standing to appeal against that decision of the lower court to a higher court. A person who is neither the prosecutor nor the defendant in a criminal proceeding cannot appeal either as of right, or with leave of court. See the section 485(2) & (3) ACJA as it relates to appeals from Magistrate in FCT to FCT High Court Abuja.

In the instant case, the respondent was convicted for the offence of contempt of court for using abusive language against the appellant. He appealed against his conviction on the ground that the abusive words were not used in the course of judicial proceeding. His appeal was allowed. The complainant appealed against the decision of the court allowing the respondent's appeal. His appeal was dismissed on the ground that the appellant lacked the locus standi to bring the appeal because he is not the prosecutor or the aggrieved person.

An appeal is any proceeding taken by an aggrieved and/or dissatisfied party to rectify an alleged erroneous decision of a court by bringing the decision of the lower court before a higher court. A right of appeal exists only where it is provided for under an enactment. Where there is no Act, Law, Decree or Edict providing for a right of appeal, an aggrieved party cannot appeal against the decision of the trial court.

Application for a Prerogative Order on the other hand, is any proceeding taken by a party during or after the proceeding to prevent a court from exceeding the limit of its jurisdiction or to compel the court to exercise its jurisdiction in accordance with the law. Prerogative writs include:

• Habeas corpus

• Certiorari

• Prohibition

• Mandamus

• Quo warranto

In the instant case, counsel brought a writ of habeas corpus on behalf of a convicted prisoner. The High Court held that a writ of habeas corpus did not lie to release the convict as the accused had been convicted. The only remedy available to the accused was by way of appeal.

In the above case, the applicants were convicted by a magistrate without being heard. The applicants brought an application for an order of certiorari to quash their conviction. The High Court held that the failure of the magistrate to hear the accused persons was a breach of the rules of natural justice. Thus, an order of certiorari was issued to quash their conviction.

In this case, the magistrate drafted a charge against the accused person and signed it. Counsel for the accused applied for an order of prohibition to issue against the magistrate to stay the proceedings on the fresh charge on the ground that the magistrate was not a competent person to draft a charge. The High Court granted an order of prohibition, preventing the magistrate from trying the applicant on the fresh charge on the ground that the magistrate had no competence or authority to draft the charge.

Another issue that fell for determination is the one of CASE-STATED. The Constitution empowers a subordinate court to either unilaterally or at the request of any of the parties to the proceedings to state any question of law on the interpretation or application of the Constitution before a superior court. Such court will give its decision upon the question, and the court in which the question arose disposes of the case in accordance with that decision. Counsel should ensure that the procedure suitable to the facts of a particular case is adopted.

In the above case, it was stated that where the subordinate court is of the opinion that there is a substantial question of law on the interpretation and/or application of the Constitution, it may state a case for the opinion of the superior court. However, where a party to the proceedings requests that a case be stated on a point of law to the superior court, the court must state a case for the opinion of the superior court. It is to be noted that the fact that the subordinate court had previously pronounced on the point of law does not prevent the subordinate court from stating a case for the opinion of the

superior court. It is only when a court higher than the subordinate trial court had previously pronounced on the point of law that the request for a case-stated can be rejected by the trial court.

It is important to know that an appeal is different from case-stated which can take place either before or after judgment.

Case-Stated Before the judgment:

The Attorney-General may at any stage before judgment direct a magistrate to refer a point of law arising from the trial for opinion of the High court. See Section 65 Magistrate's Court Law (Lagos) 2009.

Either party to the proceedings may request a magistrate to refer (or he may on his own refer) a question involving substantial points of law on interpretation of the Constitution to the High Court. See section 259 of the 1999 Constitution.

The Magistrate may in his discretion, refer a question of law for the decision of a High Court. See section 65 Magistrate's Court Law (Lagos) 2009.

The above case buttressed this principle.

The Attorney-General may within 6 months of a judgment direct the magistrate to state a case thereon for the decision of the High Court. See section 66 Magistrate's Court Law 2009.

Appeal is to be lodged within 30 days of the decision. After that period, a leave of the High Court would be needed to bring the appeal.

Section 485 ACJA; 461 (3) ACJL, Kano. It is important to note that under the ACJL, Kano, the appellant shall file a Notice of Appeal with as many copies as they are parties and signed by the appellant.

When an aggrieved party fails to file his notice of appeal within 30 days as stipulated, he would file an application for leave to appeal out of time. The application for the leave of court shall be by motion on notice supported by affidavit stating the reasons why the appeal was not brought within the stipulated time. See Order 2 (Part 1) Rule 14, High Court of Lagos Appeal Rules 2004. The proposed notice and grounds of appeal must also be exhibited. The High Court has a discretion to grant an extension of time within which to file a notice of appeal. It can only exercise such discretionary powers in favour of the applicant if there are good and substantial reasons for the failure of the applicant to file the notice of appeal within the stipulated time limit. Where no cogent and compelling reasons are given, the appeal may not be entertained.

In the instance case, an application was brought to file a notice of appeal in a civil matter, 18 months after the judgment of the court was delivered. The applicant contended that he was not able to file his notice of appeal within time because he had no money and for the reoccurrence of an old illness. The court held that the reasons were not substantial ground, and his application for leave to file the notice of appeal out of time was rejected.

It is to be noted that where the application for leave to appeal to the High court against a Magistrates' Court is refused, appeal shall lie to the Court of Appeal.

It is worthy of note that where an appellant sends his notice and ground of appeal by registered post, notice of appeal is deemed to have been given on the day the notice was delivered for registered posting and any delay in the post cannot effect the time of the Notice. The above case buttressed this principle.

Grounds Of Appeal:

Grounds upon which an appeal can be brought are contained in the High Court of Lagos State (Appeal) Rules, Order 2, Part 1, Rule 9 and section 485 (9) ( a- i). The grounds are identical under the various States laws, save that grounds C and D of the rules are omitted in ACJA. No other ground is permitted. Grounds must be set out in the notice of appeal and any ground not so set out cannot be argued. See Rule 21. When leave to appeal out of time is being sought in the High Court, the grounds of appeal must be contained in the application.

Where record of proceedings is not received within time for appeal, leave must be sought before putting in additional grounds of appeal. However, the initial grounds of appeal must show that the appellant intends to file additional grounds of appeal by containing a paragraph stating that additional grounds of appeal would be filed on receipt of record of proceedings. After obtaining the copies of record of proceedings from the registrar of the Magistrates' Court, if the appellant wishes to perfect his grounds of appeal by filing additional grounds of appeal, he must bring an application for leave of the High Court to do.

The application must be by motion on notice supported by an affidavit setting out the facts on which the applicant relies, and exhibiting the perfected grounds of appeal. In other words, the appellant shall apart from stating the grounds of appeal, set out for each ground of appeal in a separate paragraph each error, omission, irregularity, or other matter on which he relies or of which he complains with particulars sufficient to give the respondent due notice thereof. See order 2, Part 1, Rule 9, paragraph 2, See also section 461 (6) & (7) ACJL, Kano & section 485 (8) ACJA. Such applications are usually granted by the court, and the court will order that the perfected grounds of appeal be substituted for the initial grounds of appeal.

In the above case, the appellant gave notice of appeal, stating only that the judgment of the lower court was unwarranted, unreasonable and was not supported by evidence. The appellant also added a paragraph stating that further grounds of appeal would be filed on receipt of record of proceedings. Subsequently, counsel for the appellant brought a motion on notice for leave to file additional grounds. The application for leave to file additional grounds was rejected. On appeal against the decision, the appellate court allowed the appeal, holding that the proper procedure was followed by the appellant. The leave to file additional grounds of appeal was granted.

This case was decided on the same grounds and principle regarding the steps and rules to follow concerning incomplete stating of Grounds of appeal when filing a Notice of Appeal in order to beat the time limit set for filing the process even before receiving the judgment and/or the Record of Appeal, and having same later completed and perfected by a Motion on Notice, etc. as explained in the case of Esoh V. The Police reported above.

It is important to know that ground of appeal would be struck out where there is non-compliance with the procedure. Worthy of note is the fact also that, for example, where the appellant complains about misdirection in law, he must give specific particulars of the alleged misdirection. Similarly, where the appellant complains that inadmissible evidence has been admitted and admissible evidence rejected by the court, he must state precisely the inadmissible evidence admitted and the admissible evidence rejected.

In the above case, the court dismissed an appeal where the appellant alleged a misdirection without stating whether the alleged misdirection was one of law or of fact. The court stated that it was necessary for the appellant to state the nature of the alleged misdirection.

A criminal appeal, other than an appeal against a sentence of fine, shall abate on the death of the appellant. Section 64 Magistrates' Court Law 1994.

In the above case, the applicant was the widow of the deceased who was sentenced to a term of imprisonment. The applicant filed an application for leave to appeal against the sentence of imprisonment imposed on her deceased husband. The Court of Criminal Appeal in England, refusing the application, held that any right of appeal which the deceased had abated on his death. Therefore, his widow had no right of appeal. The appellate court, however, added that if the sentence of the court was a fine, a right of appeal inured in the legal representatives of the deceased who could file an appeal in the interest of the estate of the deceased.

It is important to know that under Nigerian law, the constitutional right of appeal against a conviction and sentence is considered a personal right which can only be exercised by the accused person or the prosecutor. It cannot be exercised by any other person, transferred or inherited. Section 243(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). Therefore, upon the death of an accused person during his trial or appeal, the proceeding terminates. This is summed up in the Latin maxim "action personalis muritur cum persona", which means, a personal right of action dies with the person.

However, the above stated position of our law has been modified in the recent decision of the Apex Court in the above case relying on the English authorities of Regina v. Rowe (2018) 172 JP 585 EWCA; Hodgson v. Lake-man (1942) K.B. 15 DC and R. v. Jefferies (1997) EWCA Crim. 678).

The English Court's position in the said authorities was that ordinarily, the death of any accused person brings an end to his trial or appeal. But where a representative of a deceased accused person, for example, the executors or administrators of his estate, shows a significant interest in the subject-matter of the appeal, the court can allow the said representative continue with the appeal.

The proper steps to be taken where an Appellant wishes to abandon his appeal is by giving a written notice of abandonment signed by himself or his counsel to the registrar of the court below not less than 2 days before the date fixed for hearing. The latter shall immediately notify the High Court Registrar of the abandonment of the appeal and the magistrate may award costs to the respondent. Order 2 Part I Rule 13 HC Lagos, Appeal Rules.

It was held in this case that a notice of the time and place of the hearing of the appeal shall be served by the Registrar of the High Court on all the parties to the appeal. It is important to know that the court would need to be satisfied about service of hearing notice on parties before proceeding to hear the appeal.

Where appellant who is in custody has retained a legal practitioner, he is not entitled as of right to be present at the hearing of the appeal unless so ordered by the High Court. Section 40, High Court (Lagos) Law.

The court may, where it considers it necessary or expedient in the interest of justice, allow additional evidence to be adduced on appeal or may refer the case back to the magistrate to take such evidence and adjudicate afresh in the light of the evidence or report its findings on such evidence to the court. The High court will not receive additional evidence where such evidence was available at the trial or could have been adduced at the trial stage.

In the instant case, the appellants were convicted of assaulting the complainants. There was evidence during the trial that the complainant was a habitual drunkard and that she was of quarrelsome character. There was also evidence that she had been previously convicted of affray. The appellants applied for leave of the court to adduce the evidence. The High Court rejected the application on the ground that the evidence was available during the trial and ought to have been adduced at the trial stage.

In the above case, the appellant obtained a document to be tendered in evidence after the close of his case but before judgment. His application to the court to tender the document was rejected by the magistrate. On appeal, the appellant applied for leave of the court to tender the document as evidence. The High Court granted leave to the appellant to tender the document as evidence. The appellate court held that as the document was not available during the presentation of the case of the appellant, it could not have been tendered then. The court referred the case back to the magistrate to admit the document and adjudicate afresh in the light of the additional evidence.

The decision of the appellate court in this case was in line with that in the much earlier case of Arian v. Adepoju immediately above, and that is the principle that if the fresh evidence was not available to and could not have been obtained by the Appellant during the trial, and the evidence is of such relevant and crucial nature that is capable of having caused the trial court's decision to be different from the decision it entered, then the appellate court could admit and evaluate it, or send the case back to the trial court to admit the fresh evidence and decide the case with the evidence as forming part of the Record of the court at the time of hearing and deciding the case.

It is important that it be noted that an Appeal Court would not admit and consider fresh evidence except in exceptional circumstances as earlier explained. And would only do so where to do so would not mean a rehearing of the matter in such a way as would require receiving witness evidence. It is however, for the court to determine what constitutes exceptional circumstances, and in reaching its decision, the court would take into consideration the peculiar facts of each particular case as was decided by the court in the above cases.

It is important that it be noted that an Appeal Court would not admit and consider fresh evidence except in exceptional circumstances as earlier explained. And would only do so where to do so would not mean a rehearing of the matter in such a way as would require receiving witness evidence. It is however, for the court to determine what constitutes exceptional circumstances, and in reaching its decision, the court would take into consideration the peculiar facts of each particular case as was decided by the court in the above cases.

The powers of the Appeal Court is stated in sections 239, 240 and 241 of the 1999 Constitution of the Federal Republic of Nigeria. See Sections 461(15) ACJL, Kano and section 38 High Court Law. It is pertinent to know that notwithstanding that the ground of appeal may succeed, the court may dismiss the appeal if it feels that no substantial miscarriage of justice has occurred. No formula can be laid down to determine occasions when the court will invoke this provision which has been stated to prevent the quashing of a conviction on a mere technicality which has caused the appellant no embarrassment or prejudice. This was invoked in the above cases.

It is good to note that where there is an appeal against conviction and sentence and the ground of appeal fails, the court may:

• Affirm the conviction and sentence; or

• Affirm the conviction but alter the sentence by reducing, increasing, or altering the nature of it.

Note also that where the sentence is increased, it shall not be increased above the maximum that the trial court can impose.

The powers of the Appeal Court is stated in sections 239, 240 and 241 of the 1999 Constitution of the Federal Republic of Nigeria. See Sections 461(15) ACJL, Kano and section 38 High Court Law. It is pertinent to know that notwithstanding that the ground of appeal may succeed, the court may dismiss the appeal if it feels that no substantial miscarriage of justice has occurred. No formula can be laid down to determine occasions when the court will invoke this provision which has been stated to prevent the quashing of a conviction on a mere technicality which has caused the appellant no embarrassment or prejudice. This was invoked in the above cases.

It is good to note that where there is an appeal against conviction and sentence and the ground of appeal fails, the court may:

• Affirm the conviction and sentence; or

• Affirm the conviction but alter the sentence by reducing, increasing, or altering the nature of it.

Note also that where the sentence is increased, it shall not be increased above the maximum that the trial court can impose.

The powers of the Appeal Court is stated in sections 239, 240 and 241 of the 1999 Constitution of the Federal Republic of Nigeria. See Sections 461(15) ACJL, Kano and section 38 High Court Law. It is pertinent to know that notwithstanding that the ground of appeal may succeed, the court may dismiss the appeal if it feels that no substantial miscarriage of justice has occurred. No formula can be laid down to determine occasions when the court will invoke this provision which has been stated to prevent the quashing of a conviction on a mere technicality which has caused the appellant no embarrassment or prejudice. This was invoked in the above cases.

It is good to note that where there is an appeal against conviction and sentence and the ground of appeal fails, the court may:

• Affirm the conviction and sentence; or

• Affirm the conviction but alter the sentence by reducing, increasing, or altering the nature of it.

Note also that where the sentence is increased, it shall not be increased above the maximum that the trial court can impose.

In the above case, the appellants were convicted and sentenced to two years' imprisonment by the magistrate. They appealed against their conviction to the High Court. The High Court affirmed the conviction and increased the sentence. On appeal against the decision of the High Court, the appellate court held that although the High Court had power to increase the sentence imposed on the appellants by the Magistrates' Court, the power is subject to two limitations:

(i) The sentence cannot be increased beyond the maximum prescribed for > the offence;

(ii) The sentence cannot be increased beyond the maximum which the > magistrate who tried the case can impose. The appellate court, > therefore, allowed the appellants' appeal because the sentence > imposed by the High Court exceeded the maximum punishment the > magistrate had jurisdiction to impose.

Appeal lies from decisions of the State High Court or Federal High Court to the Court of Appeal which is created by section 237 of the 1999 Constitution of the Federal Republic of Nigeria. The instances when an appeal shall lie from the decisions of a High Court of a State or that of the Federal High Court to the Court of Appeal as of right is provided for in section 241 of the 1999 Constitution of the Federal Republic of Nigeria. Meanwhile, an appeal shall lie from decisions of a High Court to the Court of Appeal with the leave of the High Court or the Court of Appeal by section 242 Constitution of the Federal Republic of Nigeria 1999.

In the above case, it was argued by the appellant that the prosecutor had no right of appeal against an order of acquittal entered by the High Court. The Supreme Court held that an order of acquittal was a decision of a court which could be appealed against. The Apex Court cited that by section 284(2) of the Criminal Procedure Code, a prosecutor may appeal as of right on a question of law against an acquittal entered by a High Court. The appellate court held that the Criminal Procedure Code being an existing law by virtue of the 1999 Constitution has a right of appeal as of right by virtue of section 241 of the Constitution which provides that an appeal from the decision of a High Court to the Appeal Court lies as of right in such other cases as may be prescribed by any law in force in Nigeria.

The Apex Court added that the appeal by the State against the decision of the High Court is an appeal on a ground of law and not of fact, albeit, based on fact because the complaint of the State is that the finding of the trial court is perverse, thus, leave was not required to bring the appeal. Consequently, the appeal was dismissed.

Exercise of Right of Appeal from High Court:

Any right of appeal to the Court of Appeal from the decision of the High Court shall, in the case of criminal proceedings, be exercisable at the instance of an accused person or at the instance of the Attorney-General of the Federation or of a State. This was decided in the case above.

A party aggrieved by the decision of a trial court may appeal against that decision of the court. The parties in criminal proceedings are the accused person and the prosecutor. Either or both may appeal if dissatisfied with the decision of the trial court. The accused may appeal and the prosecutor may cross-appeal.

In the first case above, the respondent was convicted for the offence of contempt of court for using abusive language against the appellant. The words were not employed during a judicial proceeding. The appeal was allowed. The complainant appealed against the decision of the court allowing the appeal of the respondent. The appeal was dismissed on the ground that the appellant not being the prosecutor, is not a person aggrieved and had no legal standing to bring the appeal.

It was a very similar matter of a person not the accused and not the prosecutor that filed the appealed and was told he had not the locus standi to bring the appeal, and his appeal was similarly dismissed.

In the first case above, the respondent was convicted for the offence of contempt of court for using abusive language against the appellant. The words were not employed during a judicial proceeding. The appeal was allowed. The complainant appealed against the decision of the court allowing the appeal of the respondent. The appeal was dismissed on the ground that the appellant not being the prosecutor, is not a person aggrieved and had no legal standing to bring the appeal.

It was a very similar matter of a person not the accused and not the prosecutor that filed the appealed and was told he had not the locus standi to bring the appeal, and his appeal was similarly dismissed.

This case traced and rehearsed the procedure to be followed in filing appeal against the decision of the court. The defendant or other authority appealing shall give notice of appeal or notice of application for leave to appeal. Such notice shall be signed by the appellant himself or his legal representative. See Court of Appeal Rules 2021, Order 17 Rule 5(1).

Where an appellant is unable to write, he may affix his mark thereto in the presence of a witness who shall attest same. Order 17 Rule 5(4).

The Notice of Appeal shall be filed in the Registry of the lower court (High Court). Order 17 Rule 5(7). The period for giving notice of appeal or notice of application for leave to appeal is 90 days from the date of decision appealed against. See Section 24 Court of Appeal Act (2010 amendment).

If leave is required, application for the leave serves as Notice of Appeal if granted. Order 17 Rules 3 & 6 Court of Appeal Rules.

It is important to note that application can be made for extension of time within which to appeal to the Court of Appeal in all cases as in the above case. See also section 25 Court of Appeal Act 1976 as amended by Section 6 of tCourt of Appeal (Amendment Act No 7, 1982).

Where the application for leave to appeal is made to the High Court first, a further period of 14 days shall be allowed from the date for the dtetermination of the application by the court below to make another application to the Court of Appeal. The application for leave must be made by Motion on Notice which must be supported by an affidavit exhibiting the grounds of appeal.

Reply Brief:

The appellant may also if necessary, within 14 days of the service on him of the respondent's brief, but not later than 3 clear days before the date set down for the hearing of the appeal, file and serve or cause to be served on the respondent a reply brief which shall deal with all the new points arising from the appellant's brief. See Order 19, Rule 5(2). A reply brief is filed only when an issue of law or arguments raised in the respondent's brief calls for a reply. This was the decision of the court in the above case. See also section 8(7) Court of Appeal (Fast Track Practice Direction 2014).

Effect Not Filing a Notice Of Appeal:

In any appeal, where a Notice of Appeal was not filed, the appeal will be struck out for being incompetent. This the court held in the above case.

Where a Notice of Appeal was given on a wrongly headed form, the Court of Appeal will consider it a mere irregularity, and waive the rules and allow it to be corrected.

Per Fatayi Williams C.J.N., in the case above opined that:

"Any justice of the Supreme Court (who heard any cause or matter) can after a decision has been arrived at by all the justices, pronounce the opinion of another justice, who for one reason or another, is unable to reduce his opinion into writing or be present when the judgment in the case is being delivered by each of the other justices."

It is important to know that a prosecutor who wishes to appeal against the decision of the court involving a sentence of death or verdict of guilty of manslaughter or culpable homicide must do so within Seven (7) days from the date of sentence. In other words, a prosecutor who wishes to appeal against the judgment of the Appeal Court must do so within the stipulated period of seven days. Where there is a qualified right of appeal, notice of leave to appeal must be filed within seven days of the date of delivery of the judgment. Where the right of appeal is unqualified, notice of appeal must be filed within seven days of the date of delivery of the judgment. The seven-day stipulated time period within which to file application for leave to appeal or notice of appeal cannot be extended by the Supreme Court. Therefore, where a prosecutor wishes to appeal against a decision of the Appeal Court, but fails to file his leave to appeal or notice of appeal within seven days of the date of the decision appealed against, the right of appeal would not be extended, thus, it would be extinguished.

In the above case, the appellant was tried and convicted in the High Court for murder. He appealed against his conviction to the Appeal Court. The appeal was allowed and the conviction quashed. The State filed a notice of appeal against the order of acquittal 88 days after the date of delivery of the judgment. The appellant filed an application in the Supreme Court to strike out the appeal on the premise that it was incompetent because it was filed without leave of court and also outside the statutory period of 30 days permitted for filing an appeal from the decision of the Appeal Court to the Apex Court.

The Apex Court held that the appeal by the State was an appeal on a question of mixed law and fact or facts alone, and that the State ought to have obtained leave of the lower court before filing the notice of appeal. The Apex Court further held that the right of appeal conferred on the State as a prosecutor by the Constitution must be exercised within seven days of the date of delivery of judgment of the Appeal Court, in a case involving a sentence of death or a verdict of guilty of manslaughter.

The Court cited the provisions of section 4(3) of the Judicial, etc, Officers and Appeals by Prosecutors Act No 10 of 1963, which is an existing law. The Court held that the provisions of that law have to be read together with section 233(6) of the Constitution and section 31 of the Supreme Court Act 1960. Therefore, the appeal by the prosecutor having been filed 88 days after the delivery of the judgment of the Appeal Court was held to be statute barred and it was subsequently struck out.

The above case also buttresses the point that Notice of Appeal by the Prosecutor who is dissatisfied with a decision of discharge or acquittal of an accused person in a capital offence case or one of Manslaughter, must do so within 7 days.

It is important that it be noted that this Seven (7) Day period for filing of a Notice of Appeal is only as regards the Prosecution. The defence has the normal 90 days appeal period within which to file Notice of Appeal against a decision of conviction, even in the circumstance of Death sentence or sentencing in a manslaughter case.

The law in this case is that a party aggrieved by the decision of a trial court may appeal against that decision to a superior court. The parties to a criminal proceedings are the accused person and the prosecutor -- either or both may appeal if dissatisfied and/or aggrieved with the decision of the trial court. The accused person may appeal and the prosecutor may cross-appeal. Both parties are thereby exercising their right of appeal.

In the instant case, the respondent was convicted for the offence of contempt of court for using abusive language against the appellant. He appealed against his conviction on the ground that the abusive words were not used in the course of judicial proceeding. His appeal was allowed. The complainant appealed against the decision of the court allowing the respondent's appeal. His appeal was dismissed on the ground that the appellant lacked the locus standi to bring the appeal because he is not the prosecutor or the aggrieved person.

In these cases, the law has it that under section 57(a) of the Magistrates' Court Law 1973 of Lagos State and section 279(2) of the Criminal Procedure Code, a prosecutor may appeal against the decision of a magistrate where an accused person has been acquitted or discharged by the magistrate on the ground that the acquittal or discharge is erroneous in law or that the proceedings or any part thereof is in excess of the jurisdiction of the magistrate.

Under Section 57(b) of the Magistrates' Courts Law 1973 of Lagos State, a prosecutor may appeal against a conviction entered by a magistrate where the magistrate has imposed a sentence below the minimum prescribed or failed to make an order prescribed by law. The prosecutor has an unqualified right of appeal, that is to say, only him can appeal as of right in these circumstances.

The Accused Person:

For the accused person, it was stated that under Order 2 Part 1, Rule 9(1) of the High Court of Lagos State (Appeals) Rules 1973, (hereinafter referred to as 'HCR), an accused person and no other, may appeal against the decision of a Magistrates' Court on all or any of the following grounds:

i. That the court below has no jurisdiction in the case.

ii. That the court below has exceeded its jurisdiction in the case.

iii. That the magistrate was personally interested in the case.

iv. That the magistrate has acted corruptly or maliciously in the case.

v. That the decision has been obtained by fraud.

vi. That the case has already been heard or tried and decided by or forms the subject of a hearing or trial pending before a competent court, provided that it is not competent for the Appeal Court to entertain as a ground of appeal the special plea of autrefois acquit or autrefois convict unless such special plea was pleaded in the court below.

vii. That admissible evidence has been rejected, or inadmissible evidence has been admitted by the court below and that in the latter case, there is not sufficient admissible evidence to sustain the decision after rejecting such inadmissible evidence.

viii. That the decision is unreasonable, or cannot be supported having regard to the evidence.

ix. That the decision is erroneous in point of law.

x. That some other specific illegality, not hereinbefore mentioned and substantially affecting the merits of the case has been committed in the course of the proceedings in the case.

xi. That the sentence passed on conviction is excessive.

In these cases, the law has it that under section 57(a) of the Magistrates' Court Law 1973 of Lagos State and section 279(2) of the Criminal Procedure Code, a prosecutor may appeal against the decision of a magistrate where an accused person has been acquitted or discharged by the magistrate on the ground that the acquittal or discharge is erroneous in law or that the proceedings or any part thereof is in excess of the jurisdiction of the magistrate.

Under Section 57(b) of the Magistrates' Courts Law 1973 of Lagos State, a prosecutor may appeal against a conviction entered by a magistrate where the magistrate has imposed a sentence below the minimum prescribed or failed to make an order prescribed by law. The prosecutor has an unqualified right of appeal, that is to say, only him can appeal as of right in these circumstances.

The Accused Person:

For the accused person, it was stated that under Order 2 Part 1, Rule 9(1) of the High Court of Lagos State (Appeals) Rules 1973, (hereinafter referred to as 'HCR), an accused person and no other, may appeal against the decision of a Magistrates' Court on all or any of the following grounds:

i. That the court below has no jurisdiction in the case.

ii. That the court below has exceeded its jurisdiction in the case.

iii. That the magistrate was personally interested in the case.

iv. That the magistrate has acted corruptly or maliciously in the case.

v. That the decision has been obtained by fraud.

vi. That the case has already been heard or tried and decided by or forms the subject of a hearing or trial pending before a competent court, provided that it is not competent for the Appeal Court to entertain as a ground of appeal the special plea of autrefois acquit or autrefois convict unless such special plea was pleaded in the court below.

vii. That admissible evidence has been rejected, or inadmissible evidence has been admitted by the court below and that in the latter case, there is not sufficient admissible evidence to sustain the decision after rejecting such inadmissible evidence.

viii. That the decision is unreasonable, or cannot be supported having regard to the evidence.

ix. That the decision is erroneous in point of law.

x. That some other specific illegality, not hereinbefore mentioned and substantially affecting the merits of the case has been committed in the course of the proceedings in the case.

xi. That the sentence passed on conviction is excessive.

In the above case, the court dismissed an appeal where the appellant alleged a misdirection. The appellant did not state whether the alleged misdirection was one of law or of fact. The court stated that it was necessary for the appellant to state the nature of the alleged misdirection.

In the instant case, an application was brought to file a Notice of Appeal in a civil matter, 18 months after the judgment of the court has been delivered. The applicant contended that he was not able to file his notice of appeal within the stipulated time because he had no money and the re-occurrence of an old illness. The court held that the reasons given by the applicant were not strong, firm and substantial. Thus, the application for leave of court to file the notice of appeal out of time was rejected.

In this case, the law is that where the High Court has improperly granted leave to file a notice of appeal out of time, the respondent if aggrieved and/or dissatisfied about the decision, has the right to and may appeal against such decision to the Appeal Court.

Application for leave to File Additional Ground of Appeal:

Unless it is necessary for the appellant to file additional grounds of appeal, the reason being that at the time of filing the notice and grounds of appeal, the appellant may not have obtained the copies of the record of proceedings from the Magistrates' Court. In order to comply with the statutory period for the filing of the appeal, however, initial grounds of appeal are drafted by counsel based on counsel's longhand note of what happened at the trial court or simply on the omnibus ground that judgment is against the evidence adduced at the trial. The initial grounds of appeal must show that the appellant intends to file additional grounds of appeal by containing a paragraph stating that additional grounds of appeal will be filed on receipt of record of proceedings.

After obtaining the copies of record of proceedings from the registrar of the Magistrates' Court, if the appellant wishes to perfect his grounds of appeal by filing additional grounds of appeal, he must bring an application for leave of the High Court to do. The application must be by motion on notice supported by affidavit setting out the facts on which the applicant relies, and exhibiting the perfected grounds of appeal.

In the above case, the appellant gave notice of appeal, stating only that the judgment of the lower court was unwarranted, not reasonable and not supported by the evidence. The appellant also added a paragraph stating that further grounds of appeal would be filed on receipt of record of proceedings. Counsel for the appellant brought a motion for leave to file additional grounds. The application was rejected. He appealed against the decision. The appellate court, in allowing the appeal and granting the leave to file additional grounds of appeal, held that the proper procedure was duly followed by the appellant.

Application for Bail Pending Appeal:

In the above case, the accused person was convicted by a magistrate and sentenced to a term of imprisonment. He appealed against his conviction and applied for bail pending the hearing of the appeal. The magistrate refused bail to the applicant. On appeal against the order of refusal of bail, the appellate court held that since there was no evidence on the record that the appellant fell within the provisos to section 58(2) (a) of the Magistrates' Court Law, Laws of Lagos State 1973, he was entitled to bail. Thus, his appeal was allowed and bail was granted on a recognizance of N500 and one surety in the same sum.

Submission of Additional Evidence on Appeal:

In this case, the appellants were convicted of assaulting the complainants. There was evidence during the trial that the complainant was a habitual drunkard and that she was of quarrelsome character. There was also evidence that she had been previously convicted of affray. The appellants applied for leave of the court to adduce the evidence. The High Court, as the appellate court, rejected the application on the ground that the evidence was available during the trial and ought to have been adduced at the trial stage.

In the above case, the appellant obtained a document to be tendered in evidence after the close of his case but before judgment. His application to the court to tender the document was rejected by the magistrate. On appeal, the appellant applied for leave of the court to tender the document as evidence. The High Court granted leave to the appellant to tender the document as evidence. The appellate court held that as the document was not available during the presentation of the case of the appellant, it could not have been tendered then. The court referred the case back to the magistrate to admit the document and adjudicate afresh in the light of the additional evidence.

Powers of the High Court in Its Appellate Jurisdiction:

In the instant case, the appellants were convicted and sentenced to two years' imprisonment by the magistrate. They appealed against their conviction to the High Court. The High Court affirmed the conviction and increased the sentence. On appeal against the decision of the High Court, the appellate court held that although the High Court had power to increase the sentence impose on the appellants by the Magistrates' Court, the power is subject to two limitations.

i. Firstly: the sentence cannot be increased beyond the maximum prescribed for the offence.

ii. Secondly: the sentence cannot be increased beyond the maximum which the magistrate who tried the case can impose.

Therefore, the appeal was allowed because the sentence imposed by the High court exceeded the maximum punishment the magistrate had jurisdiction so to impose. That is to say that the High Court in its appellate jurisdiction over Magistrates' Court decisions cannot exercise powers according its trial court's powers, but only as the Magistrate could have exercised.

Abatement of Appeal:

In this case, the applicant was the widow of the deceased who was sentenced to a term of imprisonment. The applicant filed an application for leave to appeal against the sentence of imprisonment imposed on her deceased husband. The court of Criminal Appeal in England, refusing the application, held that any right of appeal which the deceased had abated on his death. Therefore, his widow had no right of appeal. However, the appellate court added that if the sentence of the court was a fine, the right of appeal inured in the legal representatives of the deceased who could file an appeal in the interest of the estate of the deceased.

RIGHT OF APPEAL

In this case, the Supreme Court construed section 222(a) of the 1979 CFRN (now section 243(1) of the 1999 CFRN) which provides that:

Any right of appeal to the court of Appeal from decisions of a High Court conferred by this Constitution, shall be exercisable in the case of criminal proceedings at the instance of an accused or, subject to the provisions of this Constitution and any other powers conferred upon the Attorney-General of the Federation or the Attorney-General of a State to take over and continue or to discontinue such proceedings at the instance of such other authorities or persons as may be prescribed.

The Apex Court held that this section suggests a separation of the exercise of the right of appeal by the accused from the Attorney-general in the exercise of his general powers to continue or discontinue prosecution. Besides, the exercise of this right is subject to the provisions of the Constitution which enables such other authorities or persons to exercise a right of appeal as may be prescribed by any law.

In the instant case, it was argued by the appellant that the prosecutor had no right of appeal against an order of acquittal entered by the High court. The Supreme Court held that an order of acquittal was a decision of a court. It relied on section 277 of the 1979 CFRN. It stated that on a proper construction of that section, an acquittal was a decision of a court which could be appealed against. The Apex Court stated that by section 284(2) of the Criminal Procedure Code, a prosecutor may appeal as of right on a question of law against an acquittal entered by a High court. It held that the CPC being an existing law by virtue of section of the Constitution, the prosecutor has a right of appeal as of right. The appellate court added that the appeal by the State against the decision of the High Court is an appeal on a ground of law and not of fact, albeit, based on fact because the complaint of the State is that the finding of the trial court is perverse, thus, leave was not required to being the appeal. Therefore, the appeal was dismissed.

In this case, the accused person was charged with treasonable felony before the Federal High Court. He was convicted and sentenced to 15 years' imprisonment. He appealed against his conviction and filed an application for bail to the court of Appeal pending the determination of his appeal. Counsel for the appellant/applicant submitted that bail should be granted to the applicant for the following reasons:

i. The applicant was suffering from ill-health which required overseas medical treatment;

ii. The business of the applicant would suffer if the applicant is refused bail;

iii. The applicant was a religious person of good character.

The Appeal Court rejected the application for bail. The appellate court stated that for a convicted person to be admitted to bail, there must be special or exceptional circumstances warranting the grant of bail. The court held that none of the reasons given by the applicant qualified as an exceptional circumstance. Thus, the application for bail was rejected.

In this case, the accused person was charged with treasonable felony before the Federal High Court. He was convicted and sentenced to 15 years' imprisonment. He appealed against his conviction and filed an application for bail to the court of Appeal pending the determination of his appeal. Counsel for the appellant/applicant submitted that bail should be granted to the applicant for the following reasons:

i. The applicant was suffering from ill-health which required overseas medical treatment;

ii. The business of the applicant would suffer if the applicant is refused bail;

iii. The applicant was a religious person of good character.

The Appeal Court rejected the application for bail. The appellate court stated that for a convicted person to be admitted to bail, there must be special or exceptional circumstances warranting the grant of bail. The court held that none of the reasons given by the applicant qualified as an exceptional circumstance. Thus, the application for bail was rejected.

In the above case, the accused person was convicted of contempt of court and sentenced to 12 months' imprisonment. He appealed against his conviction and filed an application for bail pending the determination of his appeal. Counsel for the appellant/applicant submitted that bail should be granted to the applicant for the following reasons:

i. That the applicant was convicted for contempt of court during a judicial proceeding contrary to section 133(4) and (9) of the Criminal code which carries a maximum punishment of three months' imprisonment while the applicant was sentenced to 12 months' imprisonment by the trial court;

ii. That the applicant wished to represent himself in person at the hearing of the appeal;

iii. That the applicant was a hypertensive patient; that he needed to see his doctor every other day and that the machines used for the examination of the applicant was normally immovable.

The Court of Appeal held that the first and second reasons given by the applicant did not qualify as special or exceptional circumstances to warrant the exercise of the court's discretion to grant bail in favour of the applicant. The Appeal Court, per Kalgo JCA, held that the trial court stated that the accused was being tried for contempt in the face of the court under section 6 of the Criminal Code. Therefore, the argument of counsel that the applicant would have served a considerable proportion of his sentence if bail was withheld was held to be irrelevant. The appellate court also rejected the argument based on the fact that the applicant wished to represent himself.

The appellate court held that the offence of contempt, not being a complicated offence, there was no justification for granting bail on this ground. However, the court accepted applicant counsel's argument that the health of the applicant who is hypertensive would be jeopardized if he was not admitted to bail. It was stated that this qualifies as an exceptional circumstance. Thus, the application for bail was granted.

Per Awogu JCA, also held that:

...where a sentence is manifestly contestable as to whether or not it is a sentence known to the law, it constitutes a special circumstance for which bail should be granted to an applicant pending the determination of the issue on appeal.

In the instant case, the appellants were the dependents of the deceased who instituted an action under the Law of Torts for damages for the premature execution of the deceased. The deceased was convicted of armed robbery and sentenced to death. He filed a notice of appeal but before his appeal was heard and determined by the Appeal Court, the sentence of death had been executed by the Oyo State Government. In an action for damages against Oyo State Government under the Law of Torts, the lower courts held that the plaintiffs had no right of action under the Law of Torts and the dependents of the deceased failed in their action. On further appeal to the Supreme Court, the appeal was allowed and damages were duly awarded. The Apex Court held that a notice of appeal filed by an appellant who was sentenced to death is equivalent to a stay of execution.

In this case, the law is that brief writing on appeal was introduced in 1977 by the Supreme Court Rules 1977. Before then, there was no filing of briefs, and counsel came to court to present their oral arguments.

This was found to be tedious and it inhibited preparation of cases by opposing counsel and research by the court prior to oral submissions which were to be made before it. As a result, the system of brief filing was introduced.

In this case, the law is that argument in respect of a cross-appeal or in respect of a Respondent's Notice may be included by any party in his brief for the original appeal without special application, such an inclusive brief clearly stating that it is filled in respect of both the original appeal and the cross-appeal or respondent's notice.

Form and Contents of Appellate Brief - Issues for Determination:

In the above cases, the law is that issue or issues for determination are what are in the parties' view and constituting the case of the parties in the appeal, they are the crucial questions for determination by the appellate court. Those questions, if resolved in a party's favour, would result in the appeal being decided in his favour, and vice versa. They must be based on or filtered from the grounds of appeal already filed, but they should not be a reproduction of the grounds of appeal. Two or more grounds of appeal may constitute an issue for determination in the appeal.

Form and Contents of Appellate Brief - Issues for Determination:

In the above cases, the law is that issue or issues for determination are what are in the parties' view and constituting the case of the parties in the appeal, they are the crucial questions for determination by the appellate court. Those questions, if resolved in a party's favour, would result in the appeal being decided in his favour, and vice versa. They must be based on or filtered from the grounds of appeal already filed, but they should not be a reproduction of the grounds of appeal. Two or more grounds of appeal may constitute an issue for determination in the appeal.

Form and Contents of Appellate Brief - Issues for Determination:

In the above cases, the law is that issue or issues for determination are what are in the parties' view and constituting the case of the parties in the appeal, they are the crucial questions for determination by the appellate court. Those questions, if resolved in a party's favour, would result in the appeal being decided in his favour, and vice versa. They must be based on or filtered from the grounds of appeal already filed, but they should not be a reproduction of the grounds of appeal. Two or more grounds of appeal may constitute an issue for determination in the appeal.

In the above case, the Court of Appeal, per Nnaemeka-Agu JCA stated that:

"It is not every fact in dispute or indeed every ground of appeal that raises an issue for determination. While sometimes one such fact or ground may raise an issue, more often than not it takes a combination of such facts or grounds to raise an issue. The acid test is whether the legal consequences of that ground or fact, or a combination of those grounds or facts as framed by the appellant, if decided in favour of the appellant, will result in a verdict in his favour."

In the above case also, the law is that the issues for determination are stated in distinct form by the appellate court. The parties to the appeal are bound by the issues for determination as formulated by them. The issues for determination as formulated by the appellant may be different from those as formulated by the respondent. Where the respondent adopts the issues for determination by the appellant, he cannot make an oral submission or submissions inconsistent with the issues formulated by the appellant.

In the above case, Oputa, JSC commented on the appellant's brief thus:

"The brief filed on behalf of the appellant barely three pages, was sketchy, half-hearted and left a lot to be desired. A brief in a murder case (a case having very serious consequence for the appellant) deserves to be more purposeful, more substantial and more comprehensive, if a brief has to be filed at all."

In the instant case, the accused person was acquitted by the Federal High Court of offences contrary to the Customs and Excise Management Act. The Board of Customs appealed against the acquittal. The Appeal Court found the accused person guilty and substituted the acquittal with conviction, and sentenced the accused to a fine of N34,000 or two years' imprisonment with hard labour. The accused appealed against the decision of the Appeal Court on the ground that he did not have a fair trial because he was not in court at the hearing of the appeal. The Supreme Court, while dismissing the appeal citing section 28 of the Appeal Court Act 1976, agreed with the respondent's counsel's submission that the absence of the appellant at the hearing of the appeal does not nullify the judgment of the Appeal Court.

Appeals from CA to SC - Additional Points on Appeal:

In this case, the notice of appeal was signed by the appellants within the statutory period and handed over to the prisons authorities for onward transmission to the registrar of the Appeal Court. The prisons authorities failed to file the notice of appeal within the 30 days required to file an appeal to the Supreme Court. The Supreme Court held that the appellants initiated their appeal within time because they had signed and delivered the notice of appeal to the prison authorities within time, even though it was filed by the prison authorities outside the statutory period.

In this case, the appellant was convicted in the High Court of culpable homicide punishable with death. His appeal against conviction to the Appeal Court was dismissed. The decision of the Appeal Court dismissing the appellant's appeal was delivered on March 27, 1985. The appellant thumb-impressed a notice of appeal to the Supreme Court on April 24 1985, and handed it over to the prison authorities. The notice of appeal was filed on May 3 1985. On the issue whether the appeal was initiated within time, the court held that the appellant signed the notice of appeal 29 days after the delivery of the judgment of the Appeal Court. Therefore, the appeal was initiated within time by the appellant, although, filed out of time by the prison authorities.

In the instant case, the appellants were convicted of murder. Their appeal against conviction to the Court of Appeal was dismissed on 9th September, 1985. The appellants were not present at the hearing of the appeal. They were not notified of the dismissal of their appeal by the registrar of the Appeal Court until 9th December, 1985. They each signed their notice of appeal on 10th December, 1985, and handed it over to the prison authorities. The prison authorities filed the notice of appeal in the Court of Appeal registry on 23rd January, 1986. On the issue whether the appeal was initiated within the statutory period, the Supreme Court held that the relevant date for computation of time is the date the appellants were notified of the dismissal of their appeal by the Appeal Court.

The Apex Court stated that because the appellants were not present at the appeal, they could not be expected to appeal against a decision they were not aware. Therefore, even though the judgment of the Appeal Court was delivered on 9th September, 1985, the appellants only became aware of the judgment on 9th December, 1985. So, the relevant date for the purpose of computation of time was 9th December. As the appellants signed their notice of appeal on 10th December, 1985, a day after they became aware of the judgment of the lower court, their appeal was initiated within the statutory period of 30 days, despite the fact that it was filed by the prison authorities outside the statutory time limit.

Judicial, etc., Officers & Appeals by Prosecutors Act, No 10, 1963.

In the above case, the appellant was tried and convicted in the High Court for murder. He appealed against his conviction to the Appeal

Court. The appeal was allowed and the conviction quashed. The State filed a notice of appeal against the order of acquittal 88 days after the date of delivery of the judgment. The appellant filed an application in the Supreme Court to strike out the appeal on the premise that it was incompetent because it was filed without leave of court and also outside the statutory period of 30 days permitted for filing an appeal from the decision of the Appeal Court to the Supreme Court.

The Apex Court held that the appeal by the State was an appeal on a question of mixed law and fact or facts alone, and that the State ought to have obtained leave of the lower court before filing the notice of appeal. The Apex Court further held that the right of appeal conferred on the State as a prosecutor by the Constitution must be exercised within seven days of the date of delivery of judgment of the Appeal Court, in a case involving a sentence of death or a verdict of guilty of manslaughter. The Court cited the provisions of section 4(3) of the Judicial, Etc, Officers and Appeals by Prosecutors Act No 10 of 1963, which is an existing law. The Court held that the provisions of that law have to be read together with section 213 of the Constitution and section 31 of the Supreme Court Act 1960. Therefore, the appeal by the prosecutor having been filed 88 days after the delivery of the judgment of the Appeal Court was held to be statute barred and it was subsequently struck out.

Miscarriage Of Justice:

In the above case, Nnamani JSC, stated that the expression 'miscarriage of justice' is synonymous with the expression 'failure of justice'. His Lordship quoted with approval the definitions given to the expression in Ajayi & Ors. v. Zaria Native Authority, and Abdu Dan Sarkin Noma v. Zaria Native Authority.

In the former case, the Federal Supreme Court stated as follows:

"If the proceedings at the trial fall short of the requirement not only that justice be done, but that it may be seen to done......there has been a failure of justice."

In the latter case, Hurley CJ (North) stated thus:

"There is a failure of justice not only when the court comes to the conclusion that the conviction was wrong, but also when it is of opinion that the error or omission in the court below may reasonably be considered to have brought about the conviction, and when, on the whole facts and in the absence of the error or omission, the trial court might fairly and reasonably have found the appellant not guilty."

However, Nnamani JSC, adopted the views of Fullagar J in Marz v. The Queen where Fullgar J stated thus:

"An accused person is entitled to a trial in which the relevant law is correctly explained and applied and the rules of procedure and evidence strictly followed. If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly open to him of being acquitted, there is in the eye of the law, a miscarriage of justice. Justice has been miscarried in such cases because the accused person has not had what the law says he should have and justice is justice according to law."

It is for the appellant to establish before the appellate court that he suffered a miscarriage of justice at the trial in the lower court. The onus on the appellant is discharged if he can prove to the satisfaction of the appellate court that a reasonable man who was present at the trial would hold the view that the appellant did not have a fair trial.

In the above case, Aniagolu JSC observed that:

It is so often happens that in murder cases, the defence usually talks of justice only in relation to the accused person. Very often justice as it affects the victim of the murder charge is either forgotten or ignored by the defence. But just as it is essential that justice be done to the prisoner, so must it also be done to the deceased who, even in the lonely depths of his grave, cries out loudly for the circumstances of his death to be justly examined and justice meted to him.

In this case, Oputa JSC stated that:

Justice is not a one-way traffic. It is not justice for the appellant only. Justice is not even a two-way traffic. It is really a three-way traffic -- justice for the appellant, accused of a heinous crime of murder; justice for the victim, the murdered man, the deceased 'whose blood is crying to heaven for vengeance' and finally, justice for the society at large -- the society whose social norms and values had been desecrated and broken by the criminal act complained of.