Outline Criminal Procedure in Nigeria

Outline Criminal procedure in Nigeria: Criminal procedure is the method or procedure if commenting, conducting and concluding criminal procedure or matters in court. Criminal procedure wmbkdies the rule which define the processes which govern criminal prosecution. Th3 procedure itself commences in a court which exercises crisis jurisdiction itself. Criminal proceeding can be instituted in any court vested with criminal jurisdiction by any of the following: the Attorney-General, the Police, the Special Prosecutors, and the private persons. 1.The Attorney-General: Section 172(1) and 211(1) of the 1999 Constitution, the Attorney-General of the federation or of a state respectively, acts in respect to state offenses. The powers conferred on him may be exercised by him in person or through officers of his department. 2. The Police: The law empowers the police to conduct criminal prosecutions. By the combined effect of Section 4 & 19 of the Police Act 1967 (as amended by the Police Miscellaneous Provision) (Decree No. 5 of 1989) any police officer may conduct in person all prosecutions before any court whether or not the information or complaint is laid in his name. however the power of the police to prosecute criminal offenses is subject to the power of the Attorney-General under the constitution to take over, continue or discontinue any criminal prosecution. 3. Special Prosecutors: Certain legislations creating an offense may specify persons other than the police who can institute legal proceedings in respect of the offense. In such circumstances, it is only the person within the category specified by the legislation who can institute criminal proceeding in respect of the offense. For instance, Section 7(2) of the National Drug Law Enforcement Agency Act stipulates that the prosecuting unit of the agency is responsible for prosecuting persons alleged to have committed offenses created by the Act. 4. Private persons: A private person normally lays complaints to the police who after investigation will decide whether to prosecute or not. A private person is allowed by law to lay a complaint before a Magistrate except in respect of an offense which the law stipulates that complaint be laid by or with the consent of the Attorney-General or by a specified person. Section 59(1) Criminal Procedure Act, Section 143 (e) Criminal Procedure Code, Section 185 (b) CPC, S. 342 CPAThe courts with general original criminal jurisdiction in Nigeria are the Magistrate’s court and the State High Courts. Courts of special jurisdiction are: Juvenile courts, Area courts, Court martial, Federal High Court, National Industrial Court, Military courts, Coroner’s court. SOURCES OF CRIMINAL PROCEDURE Criminal Procedural act and its equivalent laws in the southern states Criminal procedure code and its equivalent laws in the northern states The Administration of criminal justice Act 2015. Nigeria constitution (1999 as amended) Criminal code and penal code statutes establishing tribunal APPEARANCE OF ACCUSED BEFORE THE COURT The appearance of an accused person in court may be secured by issuance of summons, warrant of arrest, or arrest without warrant. Summons: this is a document directed by the court to a suspected offender calling him to appear before the court to answer a complaint made against him. The particulars required by law to be contained in the summons include 1. A brief statement of the complaint. 2. A command directed at the offender to appear at a certain time and place. 3. The signature of the issuing magistrate. Service of summons is effected by the police, an officer of court or any other public officer. Receipt of summons is acknowledged by endorsing the duplicate to that effect and a copy shall be returned and retained at the court. Proof of service is established by an affidavit or evidence in court of the serving officer. Warrant of arrest: it is an authority in writing issued by a court to a police officer or any other person to arrest an offender. Section 25, 26 and 27 of the CPA. A warrant of arrest is normally issued in respect of a serious offense or where a summons is disobeyed. A warrant is issued based on complaint made on oath by the complainant. A warrant remains in force until executed or cancelled. Section 25(2) CPA, S. 62 CPC. It may be executed on any day, including a Sunday or a public holiday. Arrest without warrant: a police officer can arrest any person without warrant where the person commits any offense in his presence. S.10, CPA, S.26 CPC. A police officer can also arrest without warrant a person reasonably suspected to have committed an indictable offense. The person is not to be handcuffed, bound or subjected to unnecessary restraint without the order of a court, magistrate or justice of the peace except where there is likelihood of violence being committed or an attempt being made to escape or for personal safety of the person concerned. S.4 CPA, S.37 CPC. A judge or magistrate can arrest or direct the arrest of any person who commits an offense in his presence. S.15 CPA, S.30 (1) CPC. Bail: a person under arrest or in custody may be granted temporary release pending his trial. This is by means of bail. Any person who is arrested or detained must be brought before a court of law within a reasonable time. Section 35(4) 1999 Constitution defines reasonable time as one day where there is a court of competent jurisdiction within a radius of 40 kilometers. The power of the court to grant bail is not inherent as such. It has constitutional as well as statutory provisions and foundation. Where a person is charged to court after making a plea, an application for bail is normally made orally from the Bar where the prosecution in its turn also states its objection (if any) and the court thus determines the application upon the informal statement, not on oath. Bail is granted as a matter of course where the offense is a simple misdemeanor, except a felony, then the court exercises discretion. Charges: a charge is a document containing the statement and particulars of the offense with which a person is accused and tried before a court of law. It contains the names of the accused, date of commission of the offense, place, description of offense, section of law under which the accused will be punished. The authority proffering the charge must sign the charge. Trials generally: a large majority of criminal trials are conducted in the magistrates courts and by the police. On the other hand, criminal trials in the high court are generally conducted by law officers of the state otherwise called ‘state counsels.’ However, a private legal practitioner can undertake prosecution. The private practitioner will apply to the Attorney-General for fiat to prosecute an offense. If the AG agrees to this, he will then undertake the prosecution. An accused person may defend himself or by a legal practitioner he may chose. S.36(B)(C) 1999 Constitution. An accused person shall be available in court throughout the tenure of the trial. Plea and Arraignment: This involves calling the accused and reading the charge or indictment to his understanding and asking him to plead thereto. COMMENCEMENT OF A CRIMINAL PROCESS Any police officer may, with or without a warrant, arrest any person who commits an offence in his presence or whom he reasonably suspects of having committed an offence. In certain circumstances, a private person may also arrest another without warrant and as soon as practicable, hand him/her over to the police. Similarly, a judge or magistrate may arrest or order the arrest of any person who commits an offence in his presence or within his/her jurisdiction. A person may also go to the police and lodge a complaint at a charge room that a crime has been committed, whether the person is known or unknown. The Charge Room At the charge room, the officer in charge hears the complaint, records it and attaches a label to his summation of facts in the light of his knowledge of law. If the label is other than a crime, he dismissed the complaint. The charge room officer may dismiss any complaint on the ground that it is false, trivial, vexatious, frivolous or civil. Otherwise, he admits the case, records it and refers both the complaint and the suspects, if any, to the crime branch for investigation accordingly. As a matter of practice, the charge room officer must record the name and address of the complainant, the time, date, place and nature of every complaint he/she receives in the course of his/her duty as well as his/her actions and decisions on each. The Crime Branch The crime officer received the complaint referred to him/her for investigation. An investigating police officer or a team of investigating police officers will be assigned to it. When a police officer is endeavoring to discover whether or by whom an offence has been committed, he is entitled to question any person, whether suspected or not, from whom he thinks that useful information may be obtained. The IPO obtains voluntary statements from the complainant, and from witnesses if there are any. He visits the scene, gathers evidence and tests the evidence at his disposal. He identifies the authors of crime and formally effects arrests. He informs the suspect(s) of the crime for which they are being arrested and informally cautions then that anything said shall be taken down in writing. The phrase “...and may be used in evidence against him/her is not to be used.” The suspect may make a voluntary statement and lead the IPO to his/her witnesses, if any. The suspect may be released on bail if the crime is bailable or within police powers to grant bail. Otherwise, he may be remanded pending arraignment “as soon as practicable.” Where the arrest is by warrant, it is usual to find the bail terms endorsed on it. Otherwise, he is taken before the issuing magistrate or judge. Complaints against juvenile delinquents or women are generally assigned to female investigating police officers. In completion of the investigation, the investigating police officer puts up a comprehensive report and recommendation to his/her superior officer who decides the next course of action. He may reduce the case because, in his opinion, there are no credible witnesses, it is false, frivolous, vexatious, trivial, civil or contrary to public policy to prosecute. Certain cases are to be referred to the attorney general for legal advice or prosecution. Where the case diary is not so referred, the police officer may prefer a charge. A charge means the statement of offence or offences which an accused is charged with in a summary trial before a court. A summary trial is a legal proceedings which is short and concise.it is immediate prosecution in a prompt and simple manner, without necessity and nicities of filing an information as is done for indictable offences in criminal proceedings at the high court or the exchange of pleadings between parties in civil proceedings at the high court . All trials in a magistrate court and all Summary conviction in any other court are summary trials Similarly, a summary trial also means all trials in a high Court without the requirements of an information and a special procedure. THE ARRAIGNMENT AND TRIAL PROCESS A criminal process may be initiated in any of the following ways. Bringing a person arrested without a warrant before a court upon a charge by a police officer. Laying a complaint before a magistrate or high court. Filing information before a high court with the consent of the judge. The most common approach adopted nowadays is to file an information by the direction or with the consent of a judge. An information is a formal document bearing one or more counts or accusations in a non-summary trial in the High Court, and must contain at least one count charging an indictable offence. It is required to show the names of the parties, the court of trial and judicial division, date, statement of the offence and particulars of offence. MODE OF TRIAL A trial may take either of the following forms. A summary trial for a summary offence a summary offence is a crime triable summarily in the magistrate court or where an accused elects to be tried in a high Court, an offence triable summarily in the High court, without the necessity of an information brought the Attorney general or Hus subordinate legal officers.They are usually non indictable offences, that is ,they are simple offences ,misdemeanor or bailable offences .They are not serious offences. A summary offence also includes an offence triable in the high court summarily without the requirements of an information and a special procedure where an accused elects to be tried in a high Court. A summary trial for an indictable offence Indictable offences are serious criminal offences that typically require a formal charge and are usually tried in a higher court. In the context of Nigerian law, these offences are characterized by their severity and the potential for significant penalties, including imprisonment. Indictable offences are considered more serious than summary offences. They often involve significant harm to individuals or society and can include crimes such as murder, robbery, and sexual assault. Indictable offences generally require a more formal legal process. They are usually initiated by an indictment, which is a formal charge issued by a prosecuting authority. The accused has the right to a trial by jury in some cases, depending on the jurisdiction.Indictable offences are subject to more stringent legal procedures and penalties.Common examples of indictable offences include: -Murder (Section 319 of the Criminal Code Act) -Manslaughter (Section 316 of the Criminal Code Act) - Armed robbery (Section 1 of the Robbery and Firearms (Special Provisions) Act) Trial following a preliminary inquiry Statutes permit some indictable offences to be tried summarily. The motivation of the prosecutor in this regard may range from convenience, expedition and desire to obtain and plea or guilty. Appearance in Court At the court, the registrar calls in the accused who goes to the dock. The registrar then confirms his name, reads the charge aloud, asks him if he understands and wants to be tried summarily or in indictment at the high court, takes his plea if he elects summary trial and confirms that the accused understood the charges. Having elected trial, the accused may plead the following: Guilty The police prosecutor gives a resume of evidence. The court may confirm the plea and find him guilty if it satisfies itself that the accused clearly understands the meaning of the charge in all its details and essentials and also the consequence of his/her plea. The court may yet find him not guilty despite his admission of guilt in appropriate cases. Where an accused pleads guilty, the counsel for the prosecution will give the court a summary of the evidence together with details of the accused persons background that is character and his criminal records, if any.After this the counsel for the defence usually makes his allocutus or plea in mitigation of sentence and the court passes its sentence. Not guilty The court then records it, considers his bail or remand and adjourns for trial.Where and accused person pleads not gulty, the trial then proceeds. Autrefois acquit This is pleaded if the accused person has earlier been tried and found “not guilty” for the same offence.It means he have been tried for that offence before and have been acquitted. The plea is an application for the rule against double jeopardy, which state that a person cannot be trued twice for the same offence. it is a fundamental right under the fair hearing provisions of the Nigerian constitution.- s.36(9) Autretois Convict By this defence, the accused says he has already been tried and convicted for the same offence on a previous occasion. He cannot be tried again.This is also an application of the rule aginast double jeopardy. Pardon This is a claim that he has been tried, convicted and pardoned by the state for the same offence. Keeping mute to malice He may keep mute to malice, which is not saying anything, and the court then enters a plea of not guilty.This is so because the law provides that where an accused stands mute, a plea of not guilty has to be mandatorily recorded for him by the court. - Zaria NA V Aishatu Bakori (1964)NWLR 25 The Trial During the trial, there is a hearing of evidence and a full inquiry into the case culminating in a verdict. Parties and their witnesses are present in the court. The case is called, the accused enters the dock while the witnesses leave the court and out of hearing. The prosecutor opens his case. He may or may not make a statement before he calls his first witness, leads him/her in evidence-inChief. The accused or his counsel cross examined and the prosecutor re-examines. The process is repeated for each witness, and at the conclusion of the case for the prosecution, the accused must be warned of his rights. These rights include the following. His right to elect to keep mute, remain where he is at the dock, and to say nothing. His right to elect to give evidence from where he is at the dock and he will neither be sworn nor questioned. His right to elect to testify on oath in the witness box and be cross-examined. The accused must elect and his election recorded. Where he testifies in the witness box as a witness, he, like any other witness or witnesses, is led in evidence-in-chief, cross examined and re-examines. Should he introduce new matters in the course of reexamination, the prosecutor will be given an opportunity to rebut it. The judge/magistrate has the pioneer to call on an earlier witness. The court serves as both judge and jury. As a jury, the court must set out the facts of the case as it finds and decide the guilt of the accused. As a judge, the court applies to law to the facts and determines the punishment or otherwise. The Verdict The court is to give a verdict of either “guilty” or “not guilty”. Upon a verdict of not guilty, the accused must be discharged and acquitted. Where the court funds that the prosecution has proved its case “beyond reasonable doubt”, it would pronounce a verdict of “guilty”. The Sentence Upon finding the accused guilty, the court asks if he/she has anything to say as to why a sentence should not be passed on him/her according to law. This is what us usually referred to as “allocation”. The court receives evidence of the accused’s antecedent, which comprises evidence of anything in the convicted person’s favour like previous conviction, date of birth, education, employment, domestic and family life, circumstances, general reputation and if previously convicted, the date of last discharge. The totality of this information enables the court to arrive at an appropriate sentence. The sentence of the court may be one or more of the following: death sentence, imprisonment, flogging, fines, forfeiture, seizure, disqualification, probation, absolute or conditional discharge, compensation, restitution, costs, damages, reconciliation, deportation, inter alia. Except where it is mandatory, the choice and question of sentence is discretionary. In theory, the objective of sentence ranges from retribution, deterrence, to reformation and rehabilitation or reparation. In practice, the judge or magistrate would consider such factors as: Where the crime was planned, whether the offender is a habitual criminal, whether violence was employed, public interest, the nature of the crime and if there are previous convictions of the convicted for a similar offence. CIVIL AND CRIMINAL PROCEDURES COMPARED There are both substantive and procedural differences between the civil and criminal processes. Some of the differences are as follows. Applicable Law The laws which govern civil procedure include Civil Procedural Laws Rules and practice of court Rules which deal with the rights and duties between individuals and with private disputes and claims arising from contracts or torts. The Criminal Law is the substantive law on crimes and criminal. It applies to wrongs committted against the public as a whole, which wring is proscribed by statute and its punishment is also prescribed. Parties In a criminal proceeding, the parties are the state and the offender, with the action being brought by the state or its representatives. Parties in a civil suit are the plaintiff, who is the party who sued, and the defendant, who is being sued. The plaintiff is also called the claimant while the defendant is also called the respondent. The Objectives The objective of a criminal process is to punish the offender. However, the main objective of civil cases is to compensate someone who has suffered a legal injury. Courts Civil and criminal matters may be administered in different courts or on different principles. A court is a civil or criminal court depending on the matter before it. This, the same court may be criminal on Monday and civil on another day. Sometimes, a court may also be criminal at one hour and civil at another. Procedure A civil action is to be initiated through a writ if summons, petition, application or originating summons. Criminal matters, in the other hand, come before the court mainly by way of charge or information. Issues of bail arise only in criminal cases, and parties need not be personally present in civil proceedings. In a criminal proceeding, both parties must be present. Also, while civil cases may be settled out of court, criminal cases are very often not to be settled out of court especially where the crime committed is a felony. Proof Generally, whoever brings an action whether in a civil or criminal case bears the burden of proof. However, while the burden in a criminal case is proof beyond reasonable doubt, the proof in a civil case is based on the balance of probabilities. Verdict In a criminal case, the verdict is usually “guilty” or “not guilty”, while in a civil case, the verdict is usually “liable” or “not liable”. Dispositional Method In a civil matter, the judge is confined to what the plaint