ANSWERS TO THE TASK ON CRIMINAL LITIGATION (WEEK 3) GROUP 2

NIGERIAN LAW SCHOOL

LAGOS CAMPUS

2015/2016 (NOVEMBER) SESSION

ANSWERS TO THE TASK ON CRIMINAL LITIGATION (WEEK 3)

GROUP 2

Question 1

(A) The objection of the learned counsel to the defendant is proper in law by virtue of Section 493 of the Administration of Criminal Justice Act (ACJA) 2015, which expressly repeals the Criminal Procedure Act (CPA) as the applicable criminal procedure legislation to the Federal High Court in Nigeria.

(B)  The response of the prosecution counsel is not proper by virtue of Section 493 of the Administration of Criminal Justice Act (ACJA) 2015.

(C)  The correct position of law is that for all criminal matters heard at Federal High Courts, the Administration of Criminal Justice Act (ACJA) 2015 is the authority on such matters. The authorities for  this position stem from S.2 (1) ACJA and S. 32(1) of the Federal High Court Act. Specifically, Section 26 of the NDLEA Act which is the relevant legislation to this question vests exclusive jurisdiction on the Federal High Courts.

Question 2:

My answer will not be different. This is because Section 2(1) of the Administration of Criminal Justice Act  (ACJA) 2015 allows the applicability of the Act to all Federal High Courts in Nigeria.

Question 3:

(A) The Administration of Criminal Justice Law of Lagos 2007 repeals the applicability of the Criminal Procedure Act (CPA) to criminal matters in Lagos, while Section 370 of the Administration of Criminal Justice Law (ACJL) 2011 repeals the 2007 Law. Therefore, the applicable law for criminal litigation in Lagos is the Administration of Criminal Justice Law 2011 and so on both the Criminal Procedure Act and the Administration of Criminal Justice Law 2007 can no longer be relied upon in criminal trials in Lagos.

(B)  Counsel may invite the court to apply the law in England, but the court is not obliged to adopt the English procedure, as Section 262 of the Administration of Criminal Justice Law (ACJL) 2011 vests the court with the discretion to adopt such a procedure as would do substantial justice.

(C)  The submission is bound to be rejected in Kaduna state. This is because the Section 35 of the High Court Law (CAP 49 Laws of Northern Nigeria) specifically prohibits the procedure in England even when there is a lacuna in the law. The court in Enugu however will adhere to the reliance on the rules of procedure applicable in England based on the state’s equivalent provision of the Criminal Procedure Act, which is a re-enactment of Section 363 of the CPA, which allows for the reliance.

(D) The court proceeding held in an uncompleted primary school building is legal. This is because the most essential characteristic of the court is its accessibility to the public. Section 200 of the Administration of Criminal Justice Law 2011 as well as Section 36(3) of the Constitution of the Federal Republic of Nigeria requires the court to be in a public place.

(E)  The said court proceedings held on Saturday and a public holiday was legal.

The general rule is that court proceedings cannot hold on non juridical days which are Saturdays, Sundays and public holidays. However , where parties agree, the court may hold proceedings on non juridical days as was in the case of  OSOSANMI V. C.O.P (14 W.A.C.A 24)

Question 4

(A) Rules 1 and 31 of the rules of professional ethics and  conduct states that lawyers are obligated to always uphold professional conduct and treat the court with respect and dignity. While Rule 36(a) of the Rules of Professional Conduct provides that the lawyer should be dressed in a decent black suit with black shoes and should not wear attires or ornaments that will attract attention, Rule 36(b) of the Rules of Professional Conduct states that the lawyer should conduct himself with decency and decorum and should observe the customs and code of behavior of the court and the custom of practice as regards dressing, courtesy and manners. Therefore, the mode of dressing of the lawyer in royal attire as well as his mode of addressing the judge by his name is professional misconduct. He is required to address the magistrate judge as “Your Worship”. Rule 36 (e) of the Rules of Professional Conduct also prohibits such professional misconduct.

(B)  The answer will not be significantly different because a legal practitioner is to observe all the rules of professional conduct when appearing before any court of law. However, the customary court judge is addressed as “Your Honour”.

Question 5

While the bench is the elevated podium where the judges sit, the registrar’s desk is beneath the front of the bench. The bar is located between the registrar’s desk and the gallery. The witness box is usually located between the bar and the bench to allow the court monitor the demeanor of the witness, while the dock could be on either side of the bench since there is no specific rule for this. Thus the arrangement under consideration is wrong.

Question 6

Customary/Area Courts:

The lawyers usually are not robbed in wig and gown but they should be dressed in black suit and black shoes with a tie. The judge may wear traditional apparel. The mode of addressing the judge is “Your Honour”

Magistrate Courts:

The magistrate does not sit robbed but is smartly dressed in somber suit; for the male counsel: black suit, trouser, shoe, shirt, and tie to match. For the female counsel: Black suit, skirt, and shoe. The mode of addressing the judge is “Your Worship”.

State and Federal High Courts:

The proper apparel is black suit, white shirt (winged or collarless), a bib, plastic collar, stud and black shoes, wig and gown. It is not unusual to see a high court judge wearing a collarless winged shirt, black shoes, white plastic collar, bib stud, wig, red gown when presiding over a capital offence and a black cap when about to pronounce a death sentence. For the male counsel: Black suit, white shirt, wig and gown. For the female:  black skirt, white blouse, white collaret, wig and gown. Her hair style shall not be in the wig form as she isn’t expected to wear a wig on a wig. The wig of a judge is different from that of the counsel, but there are no hard fast rules about it. The senior member of the bar i.e. the attorney general, members of body of benchers and SAN wear a silk gown different from the cotton or mixed fiber gowns for lawyers.

The mode of addressing the judge is “My Lord”.

Court of Appeal:

The judges sit robbed and so do the lawyers who appear before them. The mode of addressing them is “My Lord”.

Supreme Courts:

The judges sit robbed and so do the lawyers who appear before them. The mode of addressing them is “My Lord”.

(6B)

The mode of addressing litigants in criminal proceedings include:

i) The prosecution: the party who institutes the proceeding

ii) Accused/ defendant: the party to whom a charge is instituted against

Question 7:

SIMILARITIES BETWEEN CRIMINAL AND CIVIL PROCEEDINGS IN NIGERIA

1.      Both proceedings incorporate the principles of fair hearing

2.      Both proceedings are adversarial in nature

3.      In both proceedings, the burden of proof is not static

4.      They both have similar appellate procedure

5.      They both have similar constitution of court

DIFFERENCES

1.      The persons who initiate criminal proceedings are the Attorney General, the Police, and private persons. This is because it is an offence against the state. Whereas in civil proceedings, the party who has been wronged i.e a private individual or a corporate entity, institutes the proceedings against the defendant.

2.      In civil proceedings suits are instituted by originating summons, writ of summons, petition, and originating motion whereas in criminal proceedings, trials are instituted by charges or complaint.

3.      The register in criminal proceedings include but are not limited to: Prosecution, defendants, arraignment, charges, guilty, innocent, discharge, acquit etc whereas in civil proceedings the terms include: Plaintiff, defendant, respondent, appellant, pleadings etc

4.      Standard  of proof in civil proceedings requires that proof shall be upon the balance of probabilities ,whereas in criminal proceedings, proof shall be beyond reasonable doubts

5.      The outcome of proceedings in criminal matters is conviction or acquittal. Whereas in civil proceedings the outcomes are either damages, injunction, declarations, specific performance e.t.c, or dismissal.

Question8:

The principal enactments are:

a) Criminal Procedure Act formally applicable in the southern states of Nigeria except Lagos State (repealed by ACJA 2015)

b) Criminal Procedure Laws of the various states in the southern parts of Nigeria.

c) Criminal Procedure Code applicable in the Northern states of Nigeria.

d) Criminal Procedure Code laws of the various Northern states.

e) Administration of Criminal Justice Law, 2011 applicable in Lagos state.

f) Penal Code and Criminal Code.

Other enactments include:

1)      Constitution of the Federal Republic of Nigeria 1999 (as amended) applicable throughout Nigeria.

2)      Magistrates Courts Laws of various states.

3)      High Court Laws of various states.

4)      Federal High Court Act.

5)      The Court of Appeal Act.

6)      The Supreme Court Act.

7)      The High Court of Lagos (appeal rules) 2004.

8)      The Court of Appeal Rules, 2011

9)      The Supreme Court Rules.

10)  The  Children and Young Persons Act applicable nationwide.

11)  Children and Young Persons Laws of the various states

12)  The Coroners Law of the various states

13)  The Armed Forces Act and the Police Act.

14)  The Evidence Act 2011 applicable nationwide

15)  Customary Courts Laws of various southern states

16)  The Area Courts Laws of various northern states

17)  The Economic and Financial Crimes Commission Act applicable nationwide.

18)  The Independent Corrupt Practices and Other Related Offences/Commission Act applicable nationwide.

19)  English High Court Rules of Practice and Procedure to criminal trial.

Explanations:

A)    Criminal Procedure Act: it was enacted in 1945 and governed criminal proceedings in southern Nigeria with the exception of Lagos until its repeal by the ACJA 2015.

B)    Criminal Procedure Law: this was the domestication of the criminal procedure act in various states in southern Nigeria with the exception of Lagos.

C)    Criminal Procedure Code: it was enacted in 1963 with respect to criminal litigation in northern region of Nigeria.

D)    Criminal Procedure Code Law: this was the domestication of the reproduction of the CPC in northern states.

E)     Administration of Criminal Justice Law 2011: it governs rules and practice of both magistrates and high courts in Lagos state.

F)     Penal Code and Criminal Code: the penal code is the substantive law on crime for the northern region. The criminal code on the other hand is the substantive provision for all southern states except Lagos.

G)    Constitution of the Federal Republic of Nigeria: it is the organic law of the land as well as the grundnorm from which other laws derive their validity. Sec 1(3) provides that for all law to be valid, it must be consistent with the constitution. It also makes provision for the protection of certain rights under sec 33-46.

H)    Evidence Act: the provisions and sections of the Evidence Act have nationwide applicability with respect to criminal litigation in all courts in Nigeria.

I)       Other acts of the nationwide application: Enactment of the national assembly applies in varying aspects to criminal litigations in Nigeria. The acts which includes the EFCC ACT, ICPC ACT, ARMED FORCES ACT, POLICE ACT, CHILDREN AND YOUNG PERSONS ACT inter-alia have all had procedural and substantive input in the criminal litigation field in Nigeria.

Question 9:

Laws that are generally applicable in Nigeria include:

a) The Constitution of the Federal Republic of Nigeria 1999 as amended.

b) The Evidence Act

c) Administration of Criminal Justice Act 2015

d) The Children and Young Person’s Act

e) The Coroners Act

f) Economic and Financial Crimes Commission Act

g) Economic and Financial Crimes Commission Act

h) Independent and Corrupt Practices and Other Related Offences Commission Act.

i) National Drug Law Enforcement Agency Act

j) Police Act

k) Robbery and Firearms (special provisions) Act

Question 9b:

Northern region:

Criminal Procedure Code

Penal Code

Area Court Laws

District Court Laws

Southern Nigeria:

Criminal Procedure Act

Criminal Code

Customary court laws

Magistrate court laws