1.
Meaning of Criminal
Litigation
By criminal litigation, we
mean criminal proceedings in a court exercising criminal jurisdiction. Criminal
litigation encompasses the whole gamut of the law and procedure ranging from
the moment when a criminal complaint is laid before a police officer or any law
enforcement agent and continues through arrest, arraignment, trial, conviction
and sentence of the person of who is guilty of the crime. It also extends to
any possible appeal flowing therefrom.
2.
Laws Applicable to
Criminal Courts in Nigeria
The Laws applicable to
criminal courts in Nigeria include:
a. Criminal Procedure Act (CPA) and Criminal Procedure Laws of
the Various States.
The
Criminal Procedure Act (CPA) was enacted in 1945 as Cap 43, Laws of the
Federation of Nigeria, 1958 and later re-enacted as Cap 80, Laws of the
Federation of Nigeria, 1990. However, it is now Cap 41, Laws of the Federation
of Nigeria 2004.
Initially,
the Criminal Procedure Act (CPA) had general application throughout Nigeria.
However, from 1963, its application was restricted to the High Courts and
Magistrates’ Courts in states making up the then Southern Region; now
comprising – Abia, Akwa Ibom, Ebonyi, Delta, Edo, Ekiti, Ondo, Oyo, Ogun, Osun,
Enugu, Rivers, Imo and Bayelsa. Lagos State is the only exception given the
application of the Administration of Criminal Justice Law 2011. The applicable
states have re-enacted the provisions of the Criminal Procedure Act (CPA) as
Criminal Procedure Laws of the Various States.
Additionally,
by virtue of section 33 of the Federal
High Court Act, Cap 134, Laws of the Federation of Nigeria 1990, the
Criminal Procedure Act (CPA) also applies to the proceedings of the Federal
High Court. Also, the Criminal Procedure Act (CPA) is applicable to the
proceedings of a Military Court Marshal.
b. Criminal Procedure Code (CPC) and Criminal Procedure Code Laws
of the Various States.
The
Criminal Procedure Code (CPC) was enacted by the Northern Regional Government
in 1963 as Cap 30, Laws of Northern Nigeria, 1963 to govern criminal
proceedings in the Northern region of Nigeria, now consisting of the following
states: Adamawa, Bauchi, Benue, Bornu, Gombe, Jigawa, Kaduna, Kano, Kastina, Kebbi,
Kogi, Kwara, Nasarawa, Niger, Plateau, Sokoto, Taraba, Yobe and Zamfara. The
provisions of the Criminal Procedure Code (CPC) have been re-enacted by the
affected states as Criminal Procedure Code Laws of the Various States.
c. Criminal Procedure Code Act Cap 491, Laws of the Federation of
Nigeria 1990.
This
is the law that governs criminal proceedings in the Federal Capital Territory,
Abuja. It is called an Act because it is the National Assembly that made it.
Indeed, it is the National Assembly that legislates for the Federal Capital
Territory, Abuja. This is by virtue of the Federal Capital Territory
(Applicable Laws) Decree No 12, 1984.
d.
Administration of Criminal
Justice Act 2015.
By
virtue of section 2 of the Administration
of Criminal Justice Act 2015, the
provisions of the Act shall apply, to criminal trials for offences established
by an Act of the National Assembly and other offences punishable, in the
Federal Capital Territory, Abuja. However, by section 86 of the Act, the
provisions of Part 8 to 30 the Act shall apply to all criminal trials and
proceedings unless express provision is made in respect of any particular court
or form of trial or proceeding. The provisions of the Act do not apply to a
Court Martial.
e.
Administration of Criminal
Justice Law 2011.
This
is the principal enactment that governs criminal proceedings in Lagos State. It
is applicable to High Courts and Magistrates’ Courts in Lagos State.
f.
Constitution of the
Federal Republic of Nigeria, 1999 (as variously amended by the First, Second
& Third Alteration Acts).
The
Constitution has various provisions on criminal procedure. This ranges from the
provisions on rights of an accused person to jurisdiction of criminal courts as
well as appeal in criminal cases. Some provisions of the constitution crucial
to criminal proceedings are:
i.
Supremacy Clause - section
1(1) & (3)
ii.
Right to Fair Hearing - section
36
iii.
Nolle Prosequi - sections 174(1) & 211(1)
iv.
Prerogative of Mercy - sections
175(1) & 212(1)
v.
Jurisdiction of Criminal Courts - Chapter
VII
The
provisions of the Constitution are supplemented by the various court laws. These include:
i.
Supreme
Court Act
ii.
Court
of Appeal Act
iii.
High
Court Laws
iv.
Magistrate
Court Laws
v.
Area
Court Laws
vi.
Customary
Court Laws
vii.
Sharia
Court Laws
g. Criminal Code Act Cap C 38 Laws of the Federation 2004 and
Criminal Code Laws of the Southern States
This
is the principal enactments on substantive law of crime in Southern Nigeria. The
Criminal Code Act Cap C 38 Laws of the
Federation 2004 and Criminal Code
Laws of the Southern States law are applicable principally and exclusively
to the southern Nigeria. These laws set out what constitutes a particular
offence, what to prove, when it must be proved, and the number of witnesses in
some cases as well as the court with jurisdiction to try a particular offence.
They also set the punishment that goes with each offence as well as mitigating
factors, such as where the convict is a first time offender.
h. Penal Code Act and Penal Code Law of the Northern States
These
apply like the Criminal Code Act and Criminal Code Laws in the Northern part of
Nigeria.
i. Penal Code Act of the Federal Capital Territory, Abuja.
This
equally applies mutatis mutandis to
the Federal Capital Territory, Abuja.
j. Evidence Act 2011.
The
Evidence Act 2011 contains rules of evidence that applies in criminal
proceedings before courts in Nigeria.
k. Code of Conduct Bureau and Tribunal Act Cap C 23 Laws of the
Federation of Nigeria 2004.
This
law provides for the establishment of the Code of Conduct Bureau and Tribunal
to deal with complaints of corruption by public servants for the breaches of
its provisions.
l. Economic and Financial Crimes Commission (Establishment) Act,
2004
This
Act provides for the establishment of the Economic and Financial Crimes
Commission charged with the responsibility for the enforcement of all economic
and financial crimes laws, among other things. By section 19 thereof, the Federal High Court or High Court of a state
or the Federal Capital Territory has jurisdiction to try offenders under this
Act.
m. Independent Corrupt Practices and Other Related Offences Act
2000
This
Act prohibits corrupt practices and other related offences and prescribes
punishment for same.
n.
Advance Fee Fraud and
other Fraud Related Offences Act Cap A6 2006
This
is an Act to prohibit and punish certain offences pertaining to Advance Fee
Fraud and other fraud related offences and to repeal other Acts related
therewith.
o.
Dishonoured Cheque Offence
Act Vol.5, Cap D11, Laws of the Federation of Nigeria, 2004
This
is an anti-corruption law in Nigeria.
p.
Recovery of Public Property (Special Provisions) Act
This
is an Act to make provisions for the Investigation of the Assets of any Public
Officer who is alleged to have been engaged in corrupt practices, unjust
enrichment of himself or any other person who has abused his office or has in
any way breached the Code of Conduct for Public Officers contained in the
Constitution of the Federal Republic of Nigeria.
q.
Police Act Cap P 19 Laws
of the Federation of Nigeria 2004
This
Act makes provision for the organisation, discipline, powers and duties of the
police, the special constabulary and the traffic wardens.
r. Firearms Act Cap F28 Laws of the Federation of Nigeria 2004
This is an Act to make provision for regulating the possession
of and dealing in firearms and ammunition including muzzle-loading firearms,
and for matters ancillary thereto. This law creates offences.
s. Robbery and Firearms
(Special Provisions) Act Cap. R11 Laws of the Federation of Nigeria 2004.
This Act makes comprehensive provisions for matters relating
to armed robbery.
t. Public Order Act (Cap P42) Laws of the Federation of Nigeria, 2004
This is an Act that repeals all public order laws in the
States of the Federation and replaces them with a Federal Act for the purpose
of maintaining public order and to prohibit the formation of quasi-military
organisations, as well as regulate the use of uniforms and other matters
ancillary thereto.
u. Terrorism (Prevention) Act No. 10, 2011 and Terrorism
(Prevention) (Amendment) Act, 2013
This is an Act to make provisions for and about offences
relating to conduct carried out or purposes connected with terrorism. By section 32 of the Terrorism (Prevention)
Act No. 10 2011, the Federal High Court shall have the sole jurisdiction to
try an offence and impose the penalties specified in the Act.
v.
Money Laundering
(Prohibition) Act 2011 and Money Laundering (Prohibition) (Amendment) Act 2012.
The
Money Laundering (Prohibition) Act 2011
makes comprehensive provisions to prohibit the financing of terrorism, the
laundering of the proceeds of a crime, or an illegal act; and provides
appropriate penalties and expands the scope of supervisory and regulatory
authorities so as to address the challenges faced in the implementation of the
anti-money laundering regime in Nigeria.
w.
Cyber Crimes (Prohibition
and Prevention) Act
The Act provides an effective, unified and comprehensive legal,
regulatory and institutional framework for the prohibition, prevention, detection,
prosecution and punishment of cybercrimes in Nigeria. This act also ensures the
protection of critical national Information infrastructure, and Promotes cyber
security and the protection of computer systems and networks, electronic
communications, data and computer programs, intellectual property and privacy
rights.
x.
Coroners’ Act and
Coroners’ Law of the Various States
This law creates the Coroners’ Court for the
determination of the cause of death of a deceased person.
y.
Armed Forces Act Cap A20 Laws
of the Federation of Nigeria 2004.
This law creates offences punishable by a military
court marshal
z.
Children & Young
Persons Act and Children & Young Persons Laws of the Various States.
This
creates the Juvenile courts for the trial of juveniles and young person who
have committed crime.
Judicial
Interpretation of the above Enactments.
This
refers to the principles of law propounded by superior court judges while
determining criminal cases brought before them.
3.
English High Court Rules
of Practice & Procedure and the Issue of Lacuna in the Laws.
In
some cases, English High Court Rules of Practice and Procedure is a source of
criminal procedure given the existence of any lacuna in the principal
enactment. This is applicable only in states where the Criminal Procedure Act
(CPA) is applicable. Authority for this proposition is section 363 of the Criminal Procedure Act (CPA) and the case of Simidele v COP.
However,
application of English High Court Rules of Practice and Procedure to
proceedings before the High Courts in
Northern Nigeria, Lagos State
and the Federal High Court,
together with the High Court of the
Federal Capital Territory is expressly prohibited.
First,
in respect of High Courts in Northern
Nigeria, section 35 of the High
Court Law of Nigeria provides to the effect that whenever there is a lacuna
in the Criminal Procedure Code (CPC), a High Court in the Northern Nigeria
would look at any other law made for that purpose or pass another law to take
care of that lacuna or do what in their view amounts to substantial justice.
Judicial authority for this proposition is Achadu
v State.
Second,
in respect of Lagos State, section 262 of the Administration of
Criminal Justice Law 2011 provides that where a matter arises in respect of
which no adequate provisions are made in the rules, the court shall adopt such
procedure as will in its view do substantial justice between the parties.
Third,
in respect of the Federal High Court,
section 9(2) of the Federal High Court
Act Cap F 12 Laws of the Federation of Nigeria, 2004 states that where a
matter arises in respect of which no provision or no adequate provisions are
made in the rules made under subsection (1) of the Federal High Court Act or in
any other Act or enactment, the court shall adopt such procedure as it deems
fit to do substantial justice between the parties concerned.
Fourth,
in respect of the High Court of the
Federal Capital Territory, section
of the High Court of the Federal Capital Territory Act similar to the provisions of the Federal High Court Act supra.
Lastly,
by virtue of section 492(3) of the Administration
of Criminal Justice Act 2015, where there are no express provisions in the
Act, the Court may apply any procedure that will meet the justice of the case.
4.
Rules Applicable to Criminal
Courts in Nigeria
a.
Supreme Court Rules
b.
Court of Appeal Rules
c.
National Industrial Court Rules
d.
Federal High Court Rules
e.
Magistrate Court Rules
f.
Area Court Rules
g.
Sharia Court Rules
h.
Judges Rules
i.
Terrorism Prevention Regulation
j. Police Regulations (Special
Provisions)