Criminal Samuel Adewale Adeniji UNIVERSITY OF IBADAN LIBRARY C R IM IN A L A R M O U R Y UNIVERSITY OF IBADAN LIBRARY © SAMUEL ADEWALE ADENIII 2007 F irst ruD iished 2007 A ll R ights Reserved ISB N -978-057-389-5 All rights reserved. This book is copyright, and no part o f this publication m ay be reproduced, stored in a retrieval system , or transm itted in any form or by an y m e a n s , e le c tro n ic s , m e c h a n ic a l, photocopying, recording or otherwise, w ithout the prior perm ission o f the copyright owner. Published by: LIFE GATE PUBLISHING CO. LTD 5, Dalag way, Soka Bus-Stop, Felele - Mango Area Lagos/Ibadan Expressway, Ibadan Tel: 08036082370, 0805322140 Abuja Address: 14, Sule Kolo St. Foreign Affairs Qrts, Gwarinpa Abuja, P.O. Box 10914, Garki, Abuja. Tel: 08033590644, 08044111706, 53221403 UNIVERSITY OF IBADAN LIBRARY Criminal Armoury Table of Contents Table of Contents i Foreward v Preface vi Comment vii Acknowledgement viii Dedication x Table of Authorities xi Abbreviations xxxix Chapter One 1 Procedure for Instituting Criminal Proceedings 1 Magistrate Court 1 High Court 7 Federal High Court 11 Procedure for the Amendment of aC harge/Information 17 Requirements of Application to Profer a Charge/Information 19 Procedures and Grounds for Objection or Quashing of an Indictment 23 Chapter Two 28 Likely Defences in CriminalO ffences 28 Defence of Provocation 28 Defence of Self Defence 37 No Case Submission 42 Defence of Justification, Excuse and 46 Compulsion 46 UNIVERSITY OF IBADAN LIBRARY Criminal Armoury Resting on the Case of the Prosecution 57 Defence of Alibi 60 Defence of Insanity 65 Defence of Accident 71 Defence of Automatism 78 Defence of Innocence 81 Defence of Intoxication 85 Defence of Delusion 90 Defence of Non Est Factum 93 Defence of Mistake of Facts 96 Defence of Immaturity 99 Immunity 102 Defence of Husband and Wife 108 Defence of Mere Presence 111 Offence Not Known to Law 11/ Defence of Honest Claim of Right 121 Autrefois Acquit or Discharge 127 Defence of Pardon (Amnesty) 136 Want of Prosecution/Want of Diligent Prosecution 138 Chapter Three 142 Grounds for Faulting Criminal Proceedings 142 When the Verdit is Unwarranted, Unreasonable and cannot be Supported Having Regard to the Evidence. 142 Trial without a Complaint 146 Failure to Inform the Suspect of his Right to Election 147 Denial of Fear Hearing 150 Lack of Jurisdiction 154 ii UNIVERSITY OF IBADAN LIBRARY Criminal Armoury Non-Compliance with Mandatory Statutory Provisions 158 Failure to Prove Beyond Reasonable Doubt 163 Failure to resolve “Doubt” in favour of the Accused 166 Proper Venue 168 Uncertainty 169 Failure to Call Vital and Material Witnesses 170 Substantial Contradiction or Inconsistencies in the Evidence of the Witness(es) 172 Where the Accused Persons are Separately Charged but Jointly Tried 178 Lack of Corroborative Evidence where Necessary 183 Failure to Serve Hearing Notice 187 Undue delay may lead to setting aside a Conviction 190 Failure to take Plea of the Accused Person 193 Trial of the Accused Person in Absentia 194 Want of Evidence 197 Misjoinder of Offences 198 Index 199 UNIVERSITY OF IBADAN LIBRARY Criminal Armoury Foreward More than ever before, law has taken the central stage in our lives. Stories pertaining to crime make front page news in our daily newspapers and weekly magazines. Every citizen wants to know and defend his/her rights. Crim inal Law therefore exists to protect individuals and their properties. The essence o f this book, like many others before it, is to provide the knowledge o f crim inal law and procedure. However, one unique thing about the book, is that it has gone a step further than its-contemporaries in the analysis o f criminal issues and cases. The book contains three chapters. Each o f the three chapters holds a peculiar strength. It is not m y w ish to present any prefatory rem arks on the chapters that m ay prevent the readers from go ing to the source. As the saying goes, the taste o f the pudding is entirely in the eating. Mr. Samuel Adeniji is not new to book writing. He is the author o f “Legal A rm oury” which was published in 2006. I wrote a foreword to that book. However, Mr. Adeniji has again invited m e to w rite another foreword to his new book. I feel highly honoured. UNIVERSITY OF IBADAN LIBRARY Criminal Armoury O ne th ing that continues to baffle m e is that Mr. A deniji is still a law student at Olabisi Onabanjo University, Ago Iwoye. From the records, he is a serious and brilliant student. H ow then is he able to cope, as a student, with the business of book writing. It is not for m e to provide an answer. M y only guess is that Mr. A den iji m ust be excep tionally g ifted and highly com m itted to w hatever he sets his hands on. In m y view, this is a beautiful and com m endable work. F rom the first to the last page, one cou ld observe som e evidence o f assiduous research and industry. It is a book all m ust be proud to have in their libraries - private or public. I therefore com m end the book as an im p o rtan t too l for researchers, p rofessors, Legal p ractitioners, judges and all others who are interested in the development of criminal justice. HON. JUSTICE L. O. ARASI (RTD.) 63, FAJUYI ROAD, BODE FOAM BUILDING, ADAM AS IN GBA, IBADAN. UNIVERSITY OF IBADAN LIBRARY Criminal Armoury Preface I have carefully gone through the 150 pages manuscripts titled the “Criminal Armoury” by Samuel A. Adeniji. The book is divided into three (3) lengthy chapters which together is a reading delight. The author has approached the intricacies of the rules of the Criminal Law and Procedure with language that is simple and easy to understand. One interesting aspect of the book is the choice of the chapters and the sub-topics which carefully combined the basics of the Principles of Criminal Law and Criminal Procedure as they relate to trials before the Magistrate Court, High Court and Federal High Court in Nigeria. Also for the above reasons, the book presents a holistic picture of Criminal Law and Procedure for law Students and Practitioners of Law in such a way that the scenario of a Criminal Trial would be real in their imaginations. I have pointed out few typing errors in the manuscript. Beyond this, I have no doubt that the book would be quite successful in the market as a useful manual to Students and Practitioners of Law. I, therefore, congratulate Mr. Samuel A. Adeniji for yet another good contribution to the legal arena. HON. JUSTICE (PROFESSOR) M. A. OWOADE COURT OF APPEAL NIGERIA vi UNIVERSITY OF IBADAN LIBRARY Criminal Armoury Comment I had carefully gone through the draft of this book. The authorities cited had demonstrated sound knowledge of the principles and practice of criminal law and procedure marshalling his submissions and points with distinct assurance of his grounds. Those grounds fully supported in law. I found the treatment of the thematic concern in simple, flawless prose and disciplined writing most inviting. It compels the reader to keep reading. The author brought to fore lucid and well illuminated treatment of defences rarely considered in major criminal law textbooks, but which are sure winning aces at criminal trials. It is creative to explore those defences and it certainly will open up the understanding of law students, and even practitioners to the working and applications of criminal defences. The author has brought uniqueness in his approach of the arrangement of topics in the book. He effectively worked out a synergy between, the substantive and adjectival aspects of law. I am gratified and most honoured to be asked to read the draft and to comment on the book. The book represents a rich corpus or vital weapons useful to any discerning criminal trial lawyer to excel and thereby further the course of access to quality justice delivery in our country. I congratulate the author for yet another fantastic contribution to legal scholarship and training... Bravo!. TONY OYERO ESQ LECTURER FACULTY OF LAW, OLABISI ONABANJO UNIVERSITY, AGO-IWOYE. Vii UNIVERSITY OF IBADAN LIBRARY Criminal Armoury Acknowledgement To God alone be all the Glory. I am exceedingly glad to be privileged to author this book titled: “CRIMINAL ARMOURY”. The Chapter One of the book contains the powers of the Trial Courts in criminal trials cum not less than thirteen (13) grounds to object to any indictments, charges or offences, that could be profer against a suspect before a court of tribunal. Chapter Two comprises of denfences to criminal charges. Not less than twenty-three (23) of such defences which cut across criminal legislations governing criminal matters in Nigeria are extensively discussed. Chapter Three embraces grounds for faulting criminal proceedings before the appellate court. Twenty (20) of such grounds are examined with relevant authorities. I cannot but profusely thank my father Mr. Hon. Justice L. O. Arasi (rtd) for his influence and impact in my life. My story in life will be grossly incomplete if His Lordship’s name is not written in gold. Also, through tutelage and fraternity with Mr. Hon. Justice L. O. Arasi (rtd), I know his Lordship, Hon. Justice (Prof.) M. O. Owoade who doubles as my father also made a great impact on me. His Lordship wrote an historical preface o f this book. I thank m y am iable lecturer Mr. Tony Oyero who equally wrote a comment on this VIII UNIVERSITY OF IBADAN LIBRARY Criminal Armoury book. I highly appreciate the effort of my friend (Mr. & Mrs. Olufemi Taiwo) in typesetting of this work I am grateful to my mentor Mrs. Funmi Quadri and my publisher Lifegate Publishing Co. Limited for being there for me and investing in my future. I appreciate everybody who had been a blessing to me directly or indirectly. All I am saying to YOU all is I AM VERY GRATEFUL. Enjoy yourself and command exploit as you read and apply the principles of law in this book as the taste of the pudding is in eating it. SAM UEL A D E W A LE AD EN IJI L. L. B. I l l OLABISI O N ABAN JO U N IVE R SIT Y AGO -IW O YE, O GUN STATE. ix UNIVERSITY OF IBADAN LIBRARY Criminal Armoury book. I highly appreciate the effort of my friend (Mr. & Mrs. Olufemi Taiwo) in typesetting of this work I am grateful to my mentor Mrs. Funmi Quadri and my publisher Lifegate Publishing Co. Limited for being there for me and investing in my future. I appreciate everybody who had been a blessing to me directly or indirectly. AH I am saying to YOU all is I AM VERY GRATEFUL. Enjoy yourself and command exploit as you read and apply the principles of law in this book as the taste of the pudding is in eating it. SAM UEL A D E W A LE AD EN IJI L. L. B. I l l OLABISI O N ABAN JO U N IVE RSITY AGO -IW O YE, O GU N STATE. IX UNIVERSITY OF IBADAN LIBRARY Criminal Armoury Dedication I dedicate this book to m y family CH IEF S. A . AD EN IJI M RS. A. B. AD EN IJI MRS. M. A. AD EN IJI AN D A LL TH E KIDS AN D KITH S OF AD E N IJI’S FAM ILY AN D FAC U LT Y O F LAW , O LA B ISI O N A B A N JO UN IVERSITY, AGO -IW O YE, OGUN STATE, M Y A LM A M ATER, I’M PROUD OF YOU. x UNIVERSITY OF IBADAN LIBRARY Criminal Armoury Table of Authorities A. Y. O diai v. C.O.P. (1962) N.N.L.R. 9 127 A.G.F. v. D r C lem ent Isong (1986) 1 Q LRN 86 122 Abacha v. Fawehinmi (2000) 6NW LR (pt 600) p. 228 SC 81 Abacha v. State (2002) 11 NSCQR p. 345 @ 3 6 4 -3 6 5 . 17 A bacha v. State (2002) 11 N SCQ R p. 345 @ 368. 19 Abacha v State (2002) 32 WRN l j (2002) 11 NW LR (pt 779) 497 7 Abacha v. T he State (2002) 7 SCNJ 1 @ 35. 163 Abadallabe v. Borno Native Authority (1963) 1 A LL N LR.154. 32 Abara v. State (1981) 2 N CLR 110 36 Abarshi v. Commissioner o f Police (2005) 1 NCC p. 545 @ 552-553. 123 Abba v. CO P (1962) N M LR 37 3 Abeke O nafowokan v. State (2006) 2 LC p. 25, @ 36 . 135 Abiegbe & ors v. Udhremu Ugbodume & ors (1973) 1 SC 133. 113 A bim bola v. A batan (2001) 9N W LR (pt 717) 66. 116 Abubakar Dan Shalla v. The State (2004) 35 W R. N. 43. 41 UNIVERSITY OF IBADAN LIBRARY Criminal Armoury Achimugu v. C.O.P. (1989) 1 CLRN p. 308 @ 311-312 . 126 Achineku v. Ishagba (1988) 4 N W LR (pt 89) 411 129 Adamu v. State (1991) N W LR (pt 187) 530 @ 538. 115 Adeaje v. The state (1979) 6-9 S.C.19 122 Adebayo v. A. G. O gun State (2006) 39 W RN p.84). 1 Adegoju v. Lem one and ors (1959) W RN LR138 100 A dekunle v. State (1989) 5 N W LR (p tl23 ) 505. 47 Adekunle v. The State (2006) 26N SCQ R (pt 11) P. 1367. 66 Adelumola v. The State (1988) INW LR (pt 73) 683 @ 692 - 693 ; (1988) 38 SCNJ 68 59 Ademola v. The State (1988) (NWLR (Pt 73) 683 at 692 58 Adeosun v. Babalola (1972) 5. S.C 292 124 Adeoye v. State (1999) 6 N W LR (pt 605) 74 127 Adere v. T he State (1975) 9-11 S.C. 115 142 Adeyem i v. State (1989) 1 CLRN p.60 @ 65-66 129 Adeyem i v. State (1989) 1 CLRN p.60, at 65 and 66. 13 Adio v. State (1986) 3 N W LR (pt84) 548 47 Adisa v. A.G. W estern N igeria (1966) N M LR 144 130 Agbaisi v. E lukorefe (1997) 4N W LR (pt 502) @ 65 0 156 Ahmed v. State (1999) 7 NW LR (pt 612) 641; (1999) 5 SCNJ 223 25 UNIVERSITY OF IBADAN LIBRARY Criminal Armoury Aigbapion v. State (2000) 7 N W LR (pt 666) p.686. 135 A igbapion v. State (2000) 7N W LR (pt 666) P g 686. 65 Aiguobarueghian v. State (2004) 17 NSCQ R (pg 442 @ 470. 74 Aiguobarueghian v. State (2004) 17 NSCQ R p. 442 @ 481 - 4 8 136 Ajaka O monode v. Chief M. C. O. Ibru & 14 ors (1976) 6 U.I.L.R (pt 1) p.94. 74 Ajayi and or v. Zaria N.A. (1963) 1 AH N LR169 122 Ajidagba v. Inspector General o f Police (1958) 3 F S C 5 19 Akalezi v. State (1993) 2 NW LR (pt273) 1; (1993) 10 LRCN 264 24 .Akalezi v. The State (1993) 2NW LR (pt273) p. 1; (1993) 10 LRCN 264 41 Akeredolu v. Aminu (2004) 1 FRp.161, @ 173 - 174 126 Akinfe v. State (1988) 3 N W LR (pt 85) 729. 108 Akinsule v. T he State (1972) 5 S.C. @ 72 144 Akinsulire Basoyin v. Attorney General, Western N igeria (1966) N.M.L.R. 287. 77 Akpojotor v. C.O.P. (1989) 1 CLRN p.258 @ 265 - 266. 128 xiii UNIVERSITY OF IBADAN LIBRARY Criminal Armoury Alagba v. The State (1950) 19 N LR 129 37 Alawusa v. O dusote (1941 )7 WACA 140. 87 AH and ors v. State (1988) 1SCNJ 17 122 AHu Bello &13 ors v. A.G. o f Oyo-State (1986) 5N W LR (Pt) pg 82. 59 A llen v. G u lf OH Co. Ltd. (1981) 1ALL ER 353. 81 AHi and A nor v. T he State (1988) 1N W LR (pt 68) p.3 45 A longe v. I.S.P. (1959) SCN LR 516 135 A longe v. I.S.P. (1959) SCN LR 516 65 A longe v. State (1971) 1 A LL N LR 47. 24 Alphonsus Oruche v. C.O.P. (1963) 1 A ll N LR 262 ,266 . 130 Aluko v. D.P.P (1963) 1 A N LR 398 8 Am adi v. N.N.P.C (2000) 10 N W LR (pt 674) 76 @ 97 129 Anthony Okobi v. The State (1985) NM LR (pt 1) p. 50-51, Ratio 8-14 127 Anyanwu v. A nyanwu (1992) 5N W LR (pt 242) 386 115 Aoko v. Fagbem i (1963) 1A11 N LR 400 122 APP. R 248 21 Apugo v. State (2004) 9 FR. P. 186; R.5. 26 Ariori v. E lem o (1983) SCN LR p .l 122 Arisah & anr v. PoHce 12 WACA 297 130 Arisah v. CO P 12 WACA 297 - 146 Aro & ors v. Babayem i & ors (2003) 8 FR p.70 @ 83. 156 A rum v. The State (1980) 1 N CR 84 and 89 77 xiv UNIVERSITY OF IBADAN LIBRARY Criminal Armoury Asanya v. State (1991) 3 N W LR (pt 180) 422 @ 451 36 Asuguo W illiam v. T he State (1975) 9-11 S.C. 139 142 Atano v. A. G. (Bendel) (1988) 2NW LR (pt 75) p.206 @231 43 Atano v. A.G. Bendel State (1988) 2 N W LR (pt 75) 201 143 A tiji v. T he State (1976) 2 S.C. 79 @ 83-94 142 A ttam a v. C.O.P (1989) 1 CLRN p.274 @ 280. 159 Attorney - General Western-Nigeria v. Upetire (1964) N.M.L.R. 25. 55 Audu U m aru v. The state (1990) 3NW LR (pt 138) 363 @ 870 C.A 59 Austin Securities Ltd v. Northgate and English Stores Ltd (1969) 2 A ll E.R. 753, & 756 112 Auto Im port Export v. Adeyabo (2003) 7 W RN pg 1 153 Ayo Gabriel v. State (1989) 5 N W LR (pt 122) 457 @ 468 - 469. 143 Babalola John v. Zaria Native Authority (1959) NRNLR 43 25 Bakare v. The State (1987) 1 NWLR (pt 52) 579 @ 587/588. 135 Bakare v. T he State (1987) 3 S.C. 1 @ 32. 132 Bamaiyi v. State (2001) 8NW LR (pt715) p.270 @ 285 141 Bassey v. The Queen (1963) 2 SC N L R 183; (1963) 1 ALL N LR 280 25 Benjam in Shem fe v. C.O.P. (1962) N RN LR 87 161 xv UNIVERSITY OF IBADAN LIBRARY Criminal Armoury Bill Construction Ltd v. Imani Ltd (2006) 28 N SCQ R p. 1@ 10. 121 Bill Construction Ltd v. Imani Ltd (2006) 28 N SCQ R p .l @ 12. 124 Birkettv. Jam es (1977) 3 W L R 38 ; (1977) 2 A ll E.R. 801. 112 Bozim v. T he state (1985) 3 N W LR (pt8) 62 48 C & C Construction Co. and anor v. Okhai (2003) 16 N SCQ R p.328. 59 C.O.P. v. John O lapade & ors (1959) W N .L.R . 41: 120 Cassidy v. F.R.N (2004) 8 FR p.88 @ 113 127 Chanver A ba & anr v. C.O.P. (1962) N.N.L.R. 37. 127 Chief Conservator o f Forests v. Moses Obanor (1958) W R.N .L.R .43. 105 Chief Conservator o f Forests v. Obanor (1958) WACA 43 106 Chief Okotie-Eboh v. Chief Manager & 2 ors (2004) 12 SCNJ139 @ 161; (2004) 20 N SCQ R 214. 141 Chino A di v. the Q ueen (1955) 15 WACA p6 114 Chital N gutal & ors v. COP (1962) 6 E N LR 68. 99 Chiwendu v. M bam ali (1980) 3- 4 S.C. 31 116 Chukwu v. The State (1992) 1NWLR (pt217) 255; (1992) 1 SCNJ 57 59 Commissioner o f Police v. Orabor (1989) 1 CLRN (p.219) 59 Connelly v. D PP (1964) 2 A .E .R. 401 105 xvi UNIVERSITY OF IBADAN LIBRARY Criminal Armoury Connelly v. DPP (1964) 2 A ll E.R. 401; (1964) A.C. 1254. 106 COP v. G lover (1923) 4 N.M.L.R. 122 117 Daboh & ors v. State (1977) 5. S.C. 171 @ 214. 34 Dagayya v. State (2005) 1NCC 532. 53 Daniels v. The State (1991) 8N W LR (pt212) 715 C.A 59 Deduwa v. O korodudu (1976) 9-10SC 328 121 Del Solar (1930) 1KB 376 81 Dimlong v. D im long & ors (1998) 2 N W LR (pt 538) 381 132 DPP v. Crane (1921) 2 A.C. 321 149 DPP v. H ester (1972) 57 Cr. A. R. 212 @ 229 150 Duru v. G um el N. A. (1957) N RN LR p. 151. 118 Dutton v. Spink Breeching (Sales) Ltd & ors (1977) 1 A ll E .R 287 CA. 112 Duval v. C.O.P. 12 WACA 215 129 Dzakpe v. T iv Native Authority (1958) N.R.N.L.R. 135. 118 Echem v. R. 14 WACA 158 54 Edet O ffiong Ekpe v. The state (1994) 12 SCNJ 131 @ 1325. 66 Edet v. A kpan (1986) 3N W LR (pt 27) p. 225. 46 Edu v. CO P (1959) 4 F.S.C. 175 105 Edu v. Police (1952) 14 WACA 163. 104 Effia v. T he State (1999) 6 SCNJ 92 @ 98. 144 Egbe v. A defarasin (1985) 1N W LR (pt 3) 549 SC. 81 Egbe v. A defarasin (1985) 1N W LR (pt 3) p. 549 SC. 82 xvii UNIVERSITY OF IBADAN LIBRARY Criminal Armoury Egbe v. A defarasin (1987) 1N W LR (pt 3) pg 549 SC. 85 Egbe v. R (1950) 13WACA 105 138 Egbe v. State (1980) N CR 341 7 Egu v. T he State (1988) 2 N W LR (pt 78) 602: 122 Egwu v. Egwu (1995) 5 N W LR (pt 396 - 496) at 505. 156 E jigbodero v. State (1978) 9 — 10 S.C. 81 143 E joba v. State (1989) 1 CLRN p. 194 @ 203 144 Ejuren v. CO P (1961) AH N .L.R 478 138 Ekpenyong v. State (1993) 5 N W LR (pt 295) 513. 25 Ekpenyong v. T he State (1993) 5 N W LR (pt 295) 513 36 Ekpenyong v. The State (1993) 5NW LR (pt 295) pg 513). 41 E ledam v. T he State (1972) 8-9S.C. 223 54 E lum elu v. Police (1957) N RN LR 17. 129 Em eka v. The State (2001) 7 NSCQR Pl 582 @ 592 - 593 134 Ertahoro v. The Queen (1965) 1 A N L R 121 @ 1 4 9 - 1 5 0 144 Engineering Enterprise v. A ttorney — General (1985) N M LR (pt 1) pg 17 @ 22. 125 Enom e v. Police (1956) N RN LR 38 5 Enweonye & 2 Others v. T he Queen (1955) 15 WACA 1 91 Eregre v. Police (1954) 14 WACA 453 35 Eugene Ibe v. The State (1992) 6 SCNJ (pt 11) 172 @ 177. 144 — 1 ■ xviii UNIVERSITY OF IBADAN LIBRARY Criminal Armoury Evorokoromo v. The State (1979) 6-9 S.C. 3, @ 9; (1979) N SCC 61 @ 65 161 Ex parte O lakunrin (1985)1 N W LR 652 @ 668. 123 Ezeze v. State (2004) 51 W RN p. 135 at 145 - 146. 21 Fashions Iroaghan v. Commissioner o f Police (1964) N M LR. 48 101 Fawehinmi v. A. G., Lagos State (No. 1) (1989) 3 N W LR (pt 112) p. 707 21 Fawehinmi v. I. G. P. (2002) 7NW LR (pt 767) p. 606 SC. 81 Fawehinmi v. IG P (2002) 10N SCQ R (pt 11) p g 825 83 Fawehinmi v. State (1989) 1 CLRN p.292, at 304 129 Flatm an v. L ight (1946) 2 A .E .R. 368 105 FRN v. Ifegwu (2003) 15NW LR (pt842) p.113. @ 215 95 G. Ejike v. Inspector General o f Police (1961) E. N. L. R. p.7 101 G. H ired Zor v. The K ing (1944) A. C. 149. 161 Garba & ors v. University o f M ardugauri (1986) I N W LR (pt 18) 550 122 Garba v. T he State (2000) 2 SCN Q R (pt 1) p. 402. 28 G ashi v. T he State (1965) N. M. L. R. 333 48 George Xanthopoulos v. COP (1979) 10-12 CCHCJ 206 99 G irem abe v. Bornu N. A. (1961) 1 A ll N L R 469 134 G oni v. State (1996) 7 N W LR (pt458) p . l l , @ 112 106 xix UNIVERSITY OF IBADAN LIBRARY Criminal Armoury G wonto v. The State (1983) 3 S.C. 122 H alsted v. C lark (1944) 1 A .E .R . 270 105 H aruna v. A sh iru (1999) 7 N W LR (pt 612) 579. 105 H aruna v. A sh iru (1999) 7 N W LR (pt 612) 579. 106 I. G. v. M arke (1957) 2 F.S.C. 5 105 I.G v. Igbhoroji (1957) N RN LR 182 106 I.G. v. Johnson (1959) L.L.R. 55. 105 I.G.P. v. Em eozo (1957) W R. N. L. R. 213. 101 I.G.P. v. Johnson (1959) L.L.R. 55 104 Ibeakanma v. Queeen (1963) 2 SC N L R 191 at 1 9 4 -1 9 5 . 152 Ibeziako v. State (1989) 1 CLRN p. 123 101 Iboko v. Commissioner o f Police (E.N) (1965) N M LR.384 114 Idem udia v. State (1999) 7 N W LR (pt 610) 202 25 Idemudia v. State (1999) 7 N W LR (pt 610) 202 @ 218 25 Idirisu v. T he State (1968) N M LR 88 122 Ifezue v. M badugha (1984) A ll N.L.R. 256 @ 272. 129 Igabele v. State (2005) 1NCC p.59 34 Igabele v. State (2006) 25 N SCQ R p. 321; R.8. 134 Igbuku Udu v. Inspector General o f Police (1964) N M LR p .l 16 101 IGP v. G badam osi (Lagos-LD /47 CA 4/2/65) 95 IG P v. M arke (1957) 2.F.S.C pg 5. 104 IGP v. N wabaju (1959) 3 E.N.L.R. 32. 118 xx UNIVERSITY OF IBADAN LIBRARY Criminal Armoury Ihuebeka v. State (2000) 2 SCN Q R (pt 1) p.186 R.8. 28 Ike v. U gboaja (1993) 6 N W LR (pt 301) 539 116 Ikem son v. Sate (1989) 1 CLRN p. 1@ 12 135 Iko v. State (2005) 1 N CC p. 499 @ 509 143 Iko v. State (2005) 1 N CC p.499 @ 527. 152 Ikom i v. State (1986) 3 N W LR (Pt 28) 340 7 Ikom i v. State (1986) 3 N W LR (pt 28) 340 @ 358 163 ILGPC Ltd Okunade (2005) 1 W RN p. 131 @ 143. 132 Inspector General o f Police v. Ighoroji (1957) N .R.N .L.R.182 105 Irom antu v. State (1964) A LL N LR. 311. 58 Iwuanyawu v. The State (1964) 1 A LL N LR p. 413. 72 Jacob Arem u v. Inspector General o f Police (1965) 1 A ll N LR 217; (1965) James G boruko & anr v. C.O.P. (1962) N.N.L.R. 17 127 Joseph Idowu Adunkoko v. Ilorin Native Authority (1964) N.N.L.R. 84. 118 Joseph O layioye v. C.O.P. (1964) N.N.L.R. 7. 147 K ada v. State (1991) 8N W LR (pt 181)p.621 631. 65 K ajubo v. State (1988) 1 N W LR (pt 73) 721 @ 736-737. 129 K ajubo v. State (1988) 1 N W LR (pt 73) 721 @ 738 - 739 18 K ajubo v. State (supra). 130 K enon v. Tekan (2001) 14NW LR (pt 732) 12 121 xxi UNIVERSITY OF IBADAN LIBRARY Criminal Armoury Kepner v. United State (1903) 195 U.S. @ 130 also 24 Supreme Court Report 799 @ 806 — Keyamo v. LSH A (2000) 12 N W LR (pt 680) pg 196 C. A. 81 K obari v. State (1989) 1 CLRN p. 174 @ 179 134 Lado v. State (1999) 9 N W LR (pt 619) 369 22 Lado v. The State (1999) 9 N W LR (pt 619) 369 @ 381 41 LasisiIdowu v. A jiboye (1975) 5 U.I.L.R. (pt 111) p.314. 116 Lasisi Saliu v. T he State (1984) 10 S .C . l l l @ 116. 51 Laurice v. Raglan Building Co. Ltd (1942) 1 K.B. 152 @ 156. 44 Lawal & ors v. Senior Magistrate & anr (2003) lO F R p . 160, @ 173. 157 Lori v. T he State (1980) 8-11 S.C. 81 134 M ’N aughten’s Case (1843) 4St.Tr(N .5.) 847 52 M aawole K onkom ba v. R (1952) 14 WACA 236 77 Maidawa v. First bank o f N igeria Pic & ors (1997) 4 N W LR (pt 500) 497-507 129 M aiyaki & ors v. Register, Yaba M agistrate Court & Ors (1990) 2 N W LR (pt 130) p. 43 5 M aja v. T he State (1980) 1 N C R 70. 122 M andara v. A. G. Federation (1984) 4 S.C. 8 Martin V. Turner (1970) 1 All E.R. 256: (1970) 1 W LR 82 113 M ary v. K ingston 32 Cr. App. R. 183 161 xxii UNIVERSITY OF IBADAN LIBRARY Criminal Armoury M illar v. State (2005) 16 W R .N p.31 89 M illar v. State (2005) 16 W RN 31 @ 24 115 M illar v. State (2005) 16 W RN p.31 @ 35. 138 M inister v. Lam b (1882 - 83) 11QBD 588 81 M obil O il v. Coker (1975) 3 S.C. 175. 124 M ogaji v. O dofin (1978) 4 S.C.91 115 M oham m ed v. K ano N.A. (1908) 1 A LL N LR 424. 121 M oham m edu G adam v. R (1954) 14 WACA 442 77 M uka v. State (1976) 9-10 S.C. 305 @ 325. 144 N .M .L.R.327 114 N.S.Co. Ltd v. Mojec Int’l Ltd (2005) 17 W RN pg 71 @ 8 8 - 8 9 . 153 Nafiu Rabiu v. The State (1980) 2 N C R 17 123 Nasco M gt Serv. Ltd v. A. N. Am aku Transport Ltd (2003) 2 N W LR (pt 804) 290 153 Nasum u v. T he State (1979) 6 S.C. 153; @ 1 5 9 144 N dukwe v. C.O.P. (1975) 5 E.C.S.L.R.I 159 Ndukwe v. State (2005) 1 N CC p. 572 at 577. 14 Njovens v. State (1975) 5 S.C. 17. _ 48 N kem ji v. State (2005) 3 FR p.95 @ 112. 31 N nunukwe v. T he State (2004) 12 FR p. 48 at 64 48 Noah v. His Excellency, The British H igh Com m issioner to Nigeria (1980) 1ALL NLR N sofor v. State (2004) 20 N SCQ R p. 74 @ 96-97. 134 xxiii UNIVERSITY OF IBADAN LIBRARY _____ __ Criminal Armoury N tam v. State (1968) N M LR 86. 49 N wabi v. COP (1955) 1 E.N.L.R. 1 105 N wachukwu v. T he State (1985) 2 N W LR p. 27 122 N wafor O kegbu v. T he State (1979) 11 S.C. 1 130 N wali v. I.G .P (1955) 1 E.N.L.R.1 104 Nwangbomu v. State (1994) 2 NW LR (pt 327) p. 380 at 399 - 400 74 N wauzoke v. T he State (1988) 1 N W LR (pr 72) 529 36 N wede v. State (1985) 3 N W LR (pt 13) 444 24 Nwede v. The State (1985) 3N W LR (pt444) @ 45 5 45 Nworie v. A. G. Ogun State (2004) 4 FR p. 159; @ 171 - 172. 159 Nworie v. A.G. Ogun State (2004) 4 FR p. 159 @ 1 7 5 -1 7 6 . 129 Nworie v. A.G. Ogun State (2004) 4 FR p .l 59, @ 17 2 131 Nwosis v. State (1976) 6 S.C. 109 143 N wosisi v. State (1976) 6.S.C.109 48 N wosu . The State (1986) 2 N W LR (pr 35) pg 6 @ 8 144 Nwosu v. State (2004) 10 FR p.99 101 O bi v. C.O.P. (1950) 19 N.L.R. 79. 146 Obikoya v. Registrar o f Companies & anor (1975) 4 SC 31. 126 O bue v. State (1976) 2 S.C. 141 135 O bue v. State (1976) 2.S.C. 141 65 xxiv UNIVERSITY OF IBADAN LIBRARY ________________________________________ Criminal Armoury O dai v. C.O.P. (1962) N M LR 9 3 O didika v. State (1977) 2 S.C.21 48 O dili v. T he state (1977) 454 S.C.I 48 Oforlete v. The State (2000) 3 NSCQ R p. 243 @ 263, 265. 136 Ogbewe v. Inspector General o f Police (1958) W RN LR 17. 135 O gbodu v. Adelugba (1971) 1 A LL N LR 69 at 71. 116 O genyi v. I.G (1957) N RN LR 140 106 O genyi v. I.G.P.(1957) N.R.N.L.R. 140. 105 O ghor v. the state (1990) 3N W LR (pt 139) a) 502.C.A. 58 O gigie & ors v. A. I. O biyan (1997) 10 SCNJ p .l at 16 126 O goala v. State (1991) 2 N W LR (pt 175) 509 @ 525 143 O gun State v. Coker (2003) 11FR p. 263 - 264. 125 Ogundoyin & ors v. Adeyemi (2001) 7NSCQR pg 378 at 398 111 O gunleye v. The State (1991) 3 N W LR (pt 177) 1). 36 Ohwovoriole SAN v. FRN & ors (2003) 13 N SCQ R p g 1 @ 15. 163 Ohwovoriole v. FRN (2003) 15W RN 1; (2003) 2NW LR (pt 803) 176 at 1 9 4 -1 9 5 , 208. 7 O kagbue v. C.O.P. (1965) N M LR 232 135 O kagbue v. C.O.P. (1965) N M LR 232 65 O kegbu v. State (1979) 11 S. C. 63 13 XXV' UNIVER ITY OF IBADAN LIBRARY Criminal Armoury O keke v. Baba (2000) 3N W LR (pt 650) p. 644. 81 O keper v. T he State (1971) 1 AH N LR 105 142 Okonji v. State (1987) 1 N W LR (pt 52) 659 @ 67; (1987) 3 SCNJ 38 24 O koro v. T he State (1988) N W LR (pt 74) 255 122 Okoro v. Police (1953) 14 WACA 370 95 Okoro v. Police 14 WACA 370 130 O koroji v. State (2004) 11 F R p .87 ; @ 11 3 135 O kosi v. State (1989) 1 CLRN p.29, @ 48 paras B-G. 47 O kosi v. T he State (1989) 1 N W LR (p t l00) 642. 49 O kosi v. T he state (1989) 1N W LR (pt 100) @ 65. 48 Okosun v. A.G. Bendel State (1985) 3N W LR (p tl2 ) 283. 49 O kosun v. State (1979) 3-4 S.C. 36 129 O kunnu v. State (1977) 3 S.C. 151. 54 Olabisi Onabanjo v. Concord Press o f Nig. Ltd (1981) 2N CLR 399 HC 81 Oladejo v. The State (1987) 3 N W LR 419; @ 427-428. 142 Oladele v. The Nigeria A rm y (2004) 36 W RN p.68 @ 77. 132 O lieh v. Federal Republic o f Nig. (2004) 11FR p. 1. 94 O lonye v. I.G .P (1955-56) W R.N.L.R.P.1. 120 O m ega v. T he State (1964) 1 A LL N LR 379. 122 O m enim u v. State (1966) N M LR 356 25 O m eninu v. The State (1966) N M LR 356. 27 O m onuju v. The State (1976) 5 S.C. 1 134 xxvi UNIVERSITY OF IBADAN LIBRARY Criminal Armoury O m oteloye v. State (1989) 1 CLRN p. 142 @ 157 130 O m oteloye v. State (1989) 1 CLRN p.142 @ 157 . 18 O nafowokan v. The state (1987) 3 N W LR (pt 61) 538 48 O nafowokan v. The State (1987) 7 SCNJ 233 122 O najobi v. O lanipekun (1985) 4SC (pt2) 156 115 Onu O kafor v. The State (1976) 5 S.C. 13 130 O nubogu v. State (1974) 9 S.C. 1 134 O nubogu v. State (1974) 9 S.C. 1 at 18. 144 O nubogu v. State (1974) 9 S.C. 1. 144 O nubogu v. State (1974) 9 S .C .l. 145 O nubogu v. T he State (1974) 9 S.C. 1 13fj Onugbogu v. The State (1974) 9. S.C. 1 @ 20; (1974) 4 E C S L R 4 0 3 144 O nyenankeya v. The State (1964) N M LR 34 134 O payem i v. T he State (1985) 2 N W LR (pt 5) p. 101. 142 Opeyerm i v. The State (1985) 2 N W LR (pt 5) 101 @ 102 - 103. 32 O repekan & 7 ors; In Re: Am adi & 2ors v. T he State (1993) 11 SCN J 68 @ 78. 144 O rok v. T he State (1989) 1 CLRN p. 163 @ 172 53 O taki v. T he State (1986) A LL N LR (pt371) @ 378 66 O tapo v. Sum m onu (2006) 2.L.C. p.255 @ 287 123 O yewo v. T he State (1978) 4 OYSHC (pt 1) p.75 99 xxvii UNIVERSITY OF IBADAN LIBRARY Criminal Armoury Ozulonye and ors v. The State (1981) N CR 38 at 50and 51. 48 Parton V. A llsop (1971) 3 A ll E.R. 370. 113 Popoola v. Commissioner o f Police (1959) W R.N .L.R. P . l l 66 Pryerv. Smith (1977) I.W L.R 425; (1977) 1 A ll E .R 218. 112 Queen v. Abdullahi Isa (1961) 1 A LL N LR (pt 4) 668 144 Queen v. O gunrem i (1961) A ll N LR 467. 130 Queen v. Reuben E nyijim obu (1961) 1 A LL N LR p.627. 32 R v. A bia (1936) 3 WACA 40 138 R v. A chre (1947) 12 WACA 209 164 R v. A dekanm i (1944) 17 N LR 99 22 R v. A dekanm i 17 N LR 99 25 R v. A fon ja (1955) 15 WACA 26 22 R v. A jani (1936) 3 WACA 3 35 R v. A kpakpan (1956) SCN LR 3 22 R v. A kpunonu and Sunday (1942) 8 WACA 107 90 R v. A llan (1965) 1 Q.B. 130 88 Rv. Anthony E lom ba (1/95 c/62- 18./3/63-Ibadan). 63 R v. A saba and O thers (1961) 1 ATT. N LR 673 35 R v. Ashigifuwo 12 WACA 389 54 R v. Bekun (1941) 7 WACA 10 164 R v. Bernhard (1938) 26 Cr. App. R. p. 137. 100 R v. B iu (1964) N.N.L.R. 45 54 xxviii UNIVERSITY OF IBADAN LIBRARY Criminal Armoury R v. B ourne (1952)36 Cr. App.R.125. 39 R v. Boyle (1954) 2 Q. B. 292. 159 R v. Carton (1913) Q.WN. 18. 87 R v. Central Criminal Court & Nadir Ex parte D irector o f Serious Fraud Office, 96 CR R v. Chigeri (1937) 3 WACA201 139 R v. Chutuwa (1954) 14 WACA 590 70 R v. Coker & ors 20 N LR 62. 33 R v. Coker (1952) 20 N.L.R. 62. 33 R v. Connelly (1963) 3 A .E .R 510 105 R v. D uffy (1949) 1 AH E.R. 932. 22 R v. E bok 19 N.L.R. 84 @ 86 27 R v. Ekanem (1950) 13 WACA 108 35 R v. Enem a (1941 )7 WACA 134 140 R v. Euwa (1943) 9 WACA 194 106 R v.G odwin A n y i a m (1961) A ll N .L.R p.46. 138 R v. H enry Ross 18 Cr. App. Rep. 141 152 R v. H eyes (1951) 1 K.B. 29 159 R v. H ooge 6 N LR 56 106 R v. Igiri (1948) 12 WACA 377 22 R v. Ijom a (1960) W N .L.R . 130. 129 R v. Inyang (1946) 12 WACA 5. 55 R v. Ita (1946) 12 WACA 54 105 R v. Iyara (1941) 7 WACA 30. 127 xxix UNIVERSITY OF IBADAN LIBRARY Criminal Armoury R v. Jinadu (1948) 12 WACA 368. 104 R v. Jinadu 12 WACA 368 105 R v. K eeling 28 Cr. App. Rep. 121 152 R v. K elfalla (1958) 5WACA 157 139 R v. K nock (1877) 14 Cox C.C.I 31 R v. K uree (1941) 7 WACA 175. 140 R v. L iddle (1930) 21 Cr. App. R. 3 at p. 13. 47 R v. M ensah (1952) 14 WACA 174. 70 R v. N asam u (1940) 6 WACA 71. 53 R v. N asam u 6 WACA 74 54 R v. N ta (1946) 12 WACA 541 104 R v. N wam joku (1937) 3 WACA 208 25 R v. O bodo & 4 others (1959) 4 F.S.C. 1. 40 R v. O bodo (1958) 4 F.S.C. 1. 37 R v. O bodo (1959) 4 F.S.C. 1. 54 R v. O lagunju (1961) 1 A LL N.L.R. 21 35 R v. O m oni (1949) 12WACA 511 71 R v. O m oni (1949) 12WACA 511. 53 R v. O warey (1939) 5 WACA 66. 70 R v. O warey (1939) 5 WACA 66. 70 R v. Philips 18 Cr. App. Rep. 115 152 R v. R iveth34 Cr. App. R. 87 54 R v. Sawyer 91937) 3 WACA 155 135 R v. Shipton Ex parte D PP (1957) 1 A .E .R. 206 105 XXX UNIVERSITY OF IBADAN LIBRARY Criminal Armoury R v. Shodipo (1948) 12 WACA 374 137 R v. Shodipo 12 WACA 374 130 R v. Skivington (1967) 1A11E.R. 483; 51 Cr. App. R. 167. 100 R v. Tabigen (1960) 5 F.S.C.8 53 R v. Tham u (1953) 14WACA 372 52 R v. Tolson (1889)23 QBD 168 @ 181 66 R v. Twum asi - A nkra (1955) 14 WACA 673. 139 R v. U sum an Pategi (1957) N RN LR 47. 104 R v. W angara 10 WACA 236 54 R v. W hitehead (1927) 1 K.B. 99; 21 Cr. App Rep 23 152 R v. W illiam s (1943) 9 WACA 204. 146 R v. Yeboah (1954) 14 WACA 484 139 R v. Yusa (1940) 6 WACA 204. 106 R v. Z ik’s Press Ltd 12 WACA 2002 16 R. v. N wam joku (1937) 3 WACA 208 27 R. v. T.U. Essien (1938) 4 WACA 112 139 R. v. Tadm u 20 N.L.R. 60 @61 59 R. v. Tham u (1953) 14 WACA 372. 71 R v. Udo E ka E bong (1947) 12 WACA 139. 77 R. v. U niversity o f Cam bridge (1723) S. 128. 122 R. v. U zodinm a (1982) 1NLR27. 122 R. v. W alfer Innes 55 CAR p.551. 32 R. v. Yekun (1938) 4 WACA 11. 120 Rabiu v. State (1981) 2 N CLR 293 @ 354 - 355 106 UNIVERSITY OF IBADAN LIBRARY Criminal Armoury Regina v. D iyaolu (1955-56) W.R.N.L.R. 30 12 Regina v. D iyaolu (1955-56) W .R.N.L.R.30. 137 Rex v. Axlamu (1944) 10 WACA 161 4 Rex v. Ashigufuwo 12 WACA 389. 54 Rex v. B io (1945) 11 WACA 46 @ 48 36 Safiyyatu Hussaini Tudu v. A. G. Sokoto State (2003) 6 FR p.106 @ 141-143 127 Salam i O lonje & ors v. I.G.P. (1955 - 56) W R.N .L.R. 1 159 Salam i O lonje & ors v. I.G.P. (1955 — 56) W RN LR 1 129 Saliu v. State (1984) 10 S .C . l l l @ 126. 53 Sam bo v. State (1989) 1 CLRN p.75 @ 81 . 156 Sam uel A daje v. State (1979) 6-9 S.C.18 @ 28. 139 Sele v. Eyorokoromo & another v. The State (1979) 6 -9S .C .3 , 11 130 Sele v. T he State (1993) 1 SCNJ p. 15 @ 22-23 143 Shemfe V C.O.P. (1965) 1 A ll v. IGP (1961) 1 A L L N L R 4 3 2 122 Sher Singh v .Jitenddranthen (1931) 1 LR 59 Calc 275. 19 Singh v. The State(1988), NSCC 852; (1988) 5.S.C.N.J.58. 65 Southport Corporation v. Esso Petroleum Com pany L im ited A.C. 218 at 231. 60 State v. Em be (1989) 1 CLRN p. 236 @ 243 26 State v. H em be (1989) 1 CLRN p. 236 @ 241 31 State v. O latunji (2005) IN CC p. 478. 66 XXXll UNIVERSITY OF IBADAN LIBRARY Criminal Armoury State v. Onyeukwu (2004) 19 NSCQ R p.231, @ 253-254 147 State v. Onyeukwu (2004) 19 N SCQ R pg 231, @ 268. 152 State v. Terban (1989) 1 CLRN p.330 @ 337. 16 Stephen Nwakire v. Commissioner o f Police (1991) 1 N W LR (pt 167) @ 345. 100 Stephen v. State (1986) 5 N W LR (pt 46) p. 978 135 Stephen v. State (1986) 5 NW LR. (pt 46) 978. 134 Stephen v. State (1986) 5N W LR (pt 46) page. 978 65 Stephen v. T he State (1986) 5 N W LR (pt 46) 978 135 Stephen v. The State (1986) 5 N W LR 975 @ 10 00 142 Suberu Bello and Ors v. Commissioner o f Police (1959) W N .L.R . p.124. 49 Sugh v. T he State (1988) 2 N W LR 475 122 Sunday U dofia v. T he State (1984) 12 S. C. 139. 25 Sylvester Odife & ors v. Commissioner o f Police (1973) 3 E CSLR (pt 11) 822. 99 Tandor v. C.F.A.O. o f Accra (1944) 10 WACA 186. 45 The Queen v. Azu Owoh & ors (1962) 1 A ll N LR (pt 4) 659 130 T he Q ueen v. Bukar (1961) A LL N.L.R. 646. 96 The Queen v. Shampal Snigh (1962) 2 N W LR 233 @ 243-245 45 The Queen v. Suberu Balogun (1958) W R.N .L.R.65. 139 xxxiu UNIVERSITY OF IBADAN LIBRARY _ Criminal Armoury The Q ueen v. Tuke (1961) A LL N .L.R.258 96 The State v. Raufu N osiru (1975) 5.UIL.R. (pt 111) p.356. 65 The State v. A jie (2000) 11N W LR (pt 679) 434 141 T he State v. Jerom e (1980) 1 NCR. 228. 140 The State v. John U m uru (1968) N M LR 15. 29 The State v. Mathias Bkpo (1975) 5 U.I.L.R (pt 111) p. 350. 27 The State v. N wabueze (1980) 1 N CR 41 79 Thomas v. The State (1994) 4 SCN.J (pt 1) 102 @ 109; (1994) 4N W LR (pt 337) 129. 59 Tinubu v. IM B Securities P ic (2001) 8N SCQ R p g 1 82 Tinubu v. IMB Securities Pic. (2001) 16NW LR (pt 740) pg 670 SC. 81 Tongo v. Commissioner o f Police (2007) 30 NSCQ R (p tl) pg 180 @ 192-194 33 Tulu v. Bauchi N.A. (1965) N M LR P. 343 122 Ubani v. The State (2001) FW LR (pt 44) 483; (2001) 7 N W LR (pt713) 587 41 Uche W illiam s v. the State (1992) 10SCNJ 74@ 80. 65 Udo v. the State (1988) 3 N W LR 316 122 Udofia v. D.P.P D igest o f Supreme Court Cases Vol. 10, p.348 36 Ukejianya v. Uchendu (1950) 13 WACA5 115 Ukwunnenyi v. State (1989) 4 N W LR (pt 114) 131. 25 xxxiv UNIVERSITY OF IBADAN LIBRARY Criminal Armoury Ukwunneyiv. State (1989) 4N W LR (pt 114) 131; (1989) 7 SCNJ 34. 26 Umekesiobi U. Ufele & Ors v. COP 3ECSLR 42 at p .43-44 97 Utteh & ors v. The State (1992) 3 N W LR (pt 138) 301. 65 Uyo v. A.G. Bendel State (1986) 1 NW LR (pt 17) p. 418. 133 Uyo v. A.G. Bendel State (1986) 1 N W LR (p t l7) p.418 138 Uyo v. A-G. Bendel State (1986)IN W LR (pt 17) 418. 116 Uzo v. T he Police (1972) S.C. 37 122 Uzomba v. T he State (2005) 1NCC p. 406 @ 410-411. 60 Uzukwu v. T he Queen (1963) 1 AH N .L.R p. 277. 155 Walter v. Skyll Nig. Ltd (2001) 3 N W LR ( p t 101) pg 438 @ 4 7 4 157 Waltor v. R (1978) 66Cr. App. R.25 54 W ankey v. T he State (1993) 6 SCNJ 152 @ 161. 143 Warner v. Metropolitan Police Commissioner (1969) 2A.C. 256’ (1968) 2 A11E.R. 356; Wattab v. Inspector General o f Police (1956) W RN LR 24. 114 Wema B ank (Nig.) L td v. O dulaja (2000) 3 W RN. 153 W illiam s v. State (1975) 5 ECSLR 576 144 Yanor v. T he State (1965) 1 A LL N LR 193. 47 Yaw Azumah & Kwame Keholo v. The K ing WACA 87,88 90 Yesufu Adodundu & ors v. The Queen 4 FSC 70; (1959) S C N L R 162. 162 XXXV UNIVERSITY OF IBADAN LIBRARY Criminal Armoury Yesufu Adudundu & ors v. The Queen (1959) 4 FSC 70, 73 - 74. 130 Yinusa v. State (1978) 1 N CA R 109. 90 Y usuf v. State (1988) 4 N W LR (pt 86) p. 100 @ 112. 72 Zaria N ative A uthority v. Bakori (1964) N.N.L.R.25. 55 Zenvinula & 2 others v. Rex 12 WACA 68 130 Z uru v. N aval S taff (2004) 7 FR p. 106 @ 116. 129 LIST OF STATUTES 1999 Constitution o f the Federal Republic o f N igeria----------- Crim inal Procedure A ct--------------------------------------------------- Penal Code--------------------------------------------------------------------- Economic and Financial Crime Commission A ct---------------- Independent Corrupt Practices and Other Related Offence Com m issions A ct----------------------------------------------------------- Section 77 Crim inal Procedure Act Section 386 ,155 o f the Criminal Procedure Code Section 1 5 ,1 6 ,1 7 ,1 8 o f the CPC Section 81 CPA). Section 162 & 163 o f the Crim inal Procedure A ct and Section 181,298, Criminal Procedure Code. Section 185 Criminal Procedure Code xxxvi UNIVERSITY OF IBADAN LIBRARY Criminal Armoury Practice D irection (1957) 1 W L.R . 750; 41 Cr. App. R. 142; (1962) 1 W L.R. 227. Section 223 and 234 o f the Crim inal Procedure Act Diplomatic Immunities and Privileges Act, Cap. 99 LFN, 1990. Section 36(1) (2) (a) (b) o f the 1999 Constitution Section 36 (6) (a) o f the 1999 Constitution; Section 36 (6) (b) o f the 1999 Constitution; Section 36 (6) (e) o f the 1999 Constitution; Section 241 CPC and Section 199 CPA. Section 36(6) (c.) o f the 1999 Constitution; Section 36(6) (d) o f the 1999 Constitution; Section 36(5) o f the 1999 Constitution; Section 140(3)(c) Evidence Act. Section 36(8) and (12) o f the 1999 Constitution; Section 36 (11) o f the 1999 Constitution; Section 36(10) o f the 1999 Constitution; Section 221 o f the Crim inal Procedure Act. Section 36(4) o f the 1999 Constitution; Section 138 —142 o f the Evidence Act. Section 251 (2) o f the 1999 Constitution. xxxvii UNIVERSITY OF IBADAN LIBRARY Criminal Armoury B o o k s The Criminal Law and Procedure o f Southern States o f Nigeria 3rd Edition By Mr. Hon. J. Akinola Aguda.---------------------------- Bret and McLean, The Criminal Law and Procedure o f the Six Southern States o f Nigeria. 2nd Edition: By C. O. Madarikan— Black’s Law Dictionary—Deluxe Eight Edition, Bryan A. Gamer. Editor in Chief---------------------------------------------------------------- Insurance Law in a Nutshell----------------------------------------------- A Textbook o f the Law o f Torts, 5th Edition. By P. H. Winfield Prosser and Keeton on the Law o f Torts, 5th Edition------------- Stephen Digest o f Criminal Law---------------------------------------- Bullen and Leak and Jacobs, Precedents o f Pleadings 13* Edition “The Criminal Law and Procedure o f Southern States o f Nigeria” (3rd Edition) atp. 208 The author o f the book ‘Criminal Procedure in Nigeria Law and Practice’ at page 71. (1984) 4 S.C. 8 Brett and McLean’s the Criminal Law Procedure o f the Six Sourthem States o f Nigeria 2nd Edition by C. O. Madurikan p. 692; para 1806. See the comment in the Annotated copy o f the Penal Code at page 241 thereof. John F. Dobbyn, Insurance Law in a Nutshell 128 (3d ed. 1996). A Textbook o f the Law o f Tort at 43 (5 th Edition 1950). Lagos LA/31 c/64-3ld February, 1964 Pg 1-2 o f Legal Arm oury by Samuel A. Adeniji. Culled from a sub-title o f “Consolidated or Separate Trials” the authors o f Vol. 24 o f the 2 nd Edition o f Corpus Juris secundum. xxxv iii UNIVERSITY OF IBADAN LIBRARY Criminal Armoury Abbreviations W RN W eekly Report o f N igeria N M LR Nigerian M onthly Law Report N W LR N igerian W eekly Law Report SC Suprem e Court Report CLRN Crim inal Law Report o f N igeria WACA West African Court o f A ppeal N CC N igerian Crim inal Cases N SCQ R Nigerian Supreme Court Quarterly Report FSC Federal Suprem e Court CRAPP. Crim inal Appeal SCNJ Judgm ents o f Suprem e Court o f N igeria A L L N L R All N igerian Law Report SCN LR Supreme Court N igerian Law Report N RN LR Northern Region N igerian Law Report N LR N igerian Law Report FR Federal Reporter U.I.L.R University o f Ife Law Report xxxix UNIVERSITY OF IBADAN LIBRARY Criminal Armoury W L R W estern Law Report N CLR Nigerian Constitutional Law Report K.Bo K ing’s Bench N C R N igerian Constitutional Report W N LR W estern N igerian Law Report N N LR N orthern N igerian Law Report A.Co A ppeal Cases A L L E .R A ll E ngland Report N SCC N igerian Suprem e Court Cases Q.B.D Q ueen’s Bench D ivision W R N LR W estern Region N igerian Law Report ECSLR E ast Central State Law Report EN LR Eastern N igerian Law Report CCH CJ Certified Copy o f H igh Court Judgm ent OYSHC O yo State H igh Court L.L..R. Lagos Law Report QLRN Q uarterly Law Report o f N igeria L.C. Locus Classicus FW LR Federation W eekly Law Report XL UNIVERSITY OF IBA AN LIBRARY Criminal Armoury Procedure for Instituting Criminal The appropriate venue to institute criminal proceedings depends on the place of the commission of the offence, the applicable law(s) in respect of such offence, and the nature of the offence. Criminal matters may be instituted in the Magistrate Court, High Court, Federal High' Court and any other Tribunal(s) which has been empowered under the law to try such criminal offence(s).* 1 Priority shall be given to the Magistrate Court, High Court and Federal High Court in this discourse. It is clear that the procedure for instituting criminal proceedings in the Magistrate Courts is stated in Section 77 of the Criminal Procedure Act, Laws of Federation of Nigeria 2004 and under Section 8, 9, and Appendix A to the Criminal Procedure Code LFN 2004. The power of the Magistrate Court both under the Criminal Procedure Act and Criminal Procedure Code originate from Section 6(1)(5) (k) of the 1999 Constitution. It provides that: (Footnotes) 1 e.g. Robbery and Firearms Tribunal Abeokuta, Ogun State; Adebayo v. A. G. Ogun State (2006) 39 WRN p.84). UNIVERSITY OF IBADAN LIBRARY 2 Criminal Armoury (1) “the judicial powers o f the Federation shall be vested in the Courts to which this section relates, being Courts established for the federation”. (5)(k) “such other Courts as m ay be authorized by law to exercise jurisdiction at first instance or on appeal on matters with respect to which a House o f Assem bly m ay m ake laws” Section 77 o f the Criminal Procedure Act provides that “subject to the provisions o f any other enactm ent, crim inal proceedings m ay in accordance w ith the provision o f this Act be instituted. (a) in M agistrates’ Courts, on a com plaint w hether or not on oath,” T he in s t itu t io n o f C rim in a l P ro ceed in gs w o u ld comm ence w ith the com plaint whether on oath or not to the Police who after the apprehension o f the suspect coupled with their investigation w ould arraign the suspect before the Magistrate Court. It is very clear from the provision o f Section 77(a) and (b) o f the Crim inal Procedure A ct that the filling of an information or securing the leave of the judge for or before filing charges against an accused person is a procedure applicable only to or in the High Court proceedings. It has no application in the Magistrate Court. It should be noted also that Crim inal Procedure A ct is not the alpha and the O m ega in respect o f the procedure to UNIVERSITY OF IBADAN LIBRARY Criminal Armoury 3 r'ollow in instituting Criminal processes in the Magistrate Courts. The procedure m ay equally be found in any other enactment. This is shown in the Act2 by the words “subject to the provisions of any other enactm ent” . Such enactm ent m ay be from the Act o f the N ational Assem bly or from the Laws o f various States H ouse o f A ssem bly as the case m ay be or even via the Constitution. Under the Criminal Procedure Code, specific procedure . 5 not outlined as in Crim inal Procedure Act. B ut Crim inal Procedure Code provides that a M agistrate or N ative Court shall be guided in regard to practice and procedure by the orovisions o f this Crim inal Procedure Code other than those provisions which relate only to any Court other than a native Court.3 However, the establishm ent o f a M agistrate Court in the northern part o f the Federation is governed by Section 8 o f the Crim inal Procedure Code and its territorial jurisdiction is regulated by Section 9 o f the same statute.4 The power o f a Magistrate Court to try a Criminal matter depends on whether the offence is contained in the Penal Code or in any other law and the jurisdiction o f the M agistrate Court is contained in Appendix A o f the Criminal Procedure Code. 2 (Section 77 Criminal Procedure Act). 3 (Section 386,155 of the Criminal Procedure Code). 4 (i.e. Criminal Procedure Code). UNIVERSITY OF IBADAN LIBRARY 4 Criminal Armoury Therefore, i f the law creating an offence is silent on jurisdiction, the Magistrate Court can try such matter provided that the prescribed punishm ent does not exceed the power conferred on the M agistrate Court. Since it has been held that jurisdiction to try a matter is coterminous with the jurisdiction to punish.5 Furtherm ore, the particulars o f instituting Crim inal Proceedings in Magistrates’ Courts are contained in Section 78 o f the Crim inal Procedure A ct which provides that: 78: W here proceedings are instituted in a M agistrate Court, they m ay be instituted in either o f the following ways: (a) upon complaint to the Court, whether or not on oath, that an offence has been com m itted by any person whose presence the Magistrate has power to compel, and an application to such Magistrate, in the manner here in after set forth for the issue o f e ith er a summons directed to, or a w arrant o f arrest to apprehend such person, or (b) by bringing a person arrested without a warrant before the Court upon a charge contained in a Charge Sheet specifying the nam e and occupation o f the person charged, the charge against him and the tim e and place where the offence is alleged to have been committed. The Charge Sheet shall be signed by the Police O fficer irl charge o f the case. 3* 3 (Odai v. C.O.P. (1962) NMLR 9; Abba v. COP (1962) NMLR 37; Section 15,16,17,18 of the CPC)._____________ . ________________________________ UNIVERSITY OF IBADAN LIBRARY Criminal Armoury Ju stice T. A. A gu d a in h is b o o k 6* o p in ed th a t proceedings may be validly instituted under Section 78(b) o f die Crim inal Procedure Act notw ithstanding that the offence alleged to have been committed is one for which the offender may not be arrested without a warrant”. However, the formalities for filing form al or written complaint, and an application to the M agistrate to cause to >sue a sum m ons or warrant to com pel the attendance o f the accused person or to apprehend him only arise or are applicable where the accused person is at large or no t in custody. Consequently, where the accused person is already in custody or in detention) there is no need for any application by the Drosecution for the issuance o f summon or warrant to compel nis attendance. A ll that is required is for the prosecution to oreduce or bring him before the Court upon a charge contained m a charge sheet in accordance w ith the provision o f Section ~8(b) o f the Crim inal Procedure Act. There is, also no need to apply for or secure the leave o f a M agistrate before the filing of a complaint or a charge (which terms are used synonymously) under the above provision o f the Criminal Procedure A ct.7 ‘The Criminal Law and Procedure of Southern States of Nigeria” (3rd Edition) at p. 208 See also Section 81 CPA). UNIVERSITY OF IBADAN LIBRARY 6 ____________________________ ___________ Criminal Armoury In Enom e v. Police8, the accused was tried and convicted by Magistrate Court Grade II which has a m aximum jurisdiction o f one year imprisonment. On being found guilty on the three counts, he was sentenced to three consecutive terms amounting to more than one year. Held: W hile a Magistrate Grade II may impose consecutive terms, it m ust not exceed one year. M aiyaki & ors v. Registrar, Yaba M agistrate Court & ors9 was based on a com plaint by the appellant, the 3 rd respondent was charged w ith attem pted m urder before a M agistrate Court G rade 1 which has a m axim um sentencing jurisdiction o f 3 years. The applicant brought an application for an order to transfer the case to the High Court o f Lagos State on the ground that since the offence carries a maximum sentence o f life im prisonm ent, a M agistrate G rade 1, lacks jurisdiction over the case. Held: By virtue o f Section 18(3) Magistrate Court Law o f Lagos and Section 304 (1) Crim inal Procedure Law o f Lagos State, all M agistrates other than M agistrate G rade III have jurisdiction to try indictable offences subject to the accused electing summary trial. The Magistrate however cannot impose any punishment greater than that specified for his grade. 8 (1956) NRNLR38 9 (1990) 2 NWLR (pt 130) p. 43: UNIVERSITY OF IBADAN LIBRARY Criminal Armoury High Court The procedure for instituting Crim inal Proceedings in —e High Court is stated under Section 77 o f the Crim inal Procedure Act. W hile such procedure is not contained under the Crim inal Procedure Code. But the jurisdiction o f the High lourt to try a matter and pass Sentence Is Noted Under Section - o f The CRIMINAL PROCEDURE CODE. The H igh Court either at the Federal Capital Territory, Abuja or H igh Court o f a State derives its jurisdiction from Sections 257 and 272 o f the 1999 Constitution. Section 257 o f the 1999 Constitution w hich is in pari 'nateria w ith Section 272 o f the same Constitution provides that 257 (1): Subject to the provisions o f Section 251 and any other provisions o f this Constitution and in addition to such other urisdiction as may be conferred upon it by law, the High Court o f the Federal Capital Territory, Abuja shall have jurisdiction to hear and determ ine any civil proceedings in which the exercise or extent o f a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determ ine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect o f an offence committed by any person. UNIVERSITY OF IBADAN LIBRARY 8 ^ Criminal Armoury (2) The reference to civil or criminal proceedings in this section includes a reference to the proceedings which originate in the High Court o f the Federal Capital Territory, A buja and those which are brought before the High Court o f the Federal Capital Territory, A buja to be dealt w ith by the Court in the exercise o f its appellate or supervisory jurisdiction”. H aving taken cognizance o f the above provisions o f laws, Section 77(b) o f the Crim inal Procedure A ct has to be examined and the rationale for it has to be considered. Section 77 provides “ subject to the provisions o f any other enactment, criminal proceedings may in accordance with the provisions o f this A ct be instituted — (b) In the High Court - (i) by inform ation o f the A ttorney — G eneral o f the State in accordance with the provisions o f Section 72 o f this Act, and (ii) by information filed in the Court after the accused has been summarily committed for perjury by a judge or Magistrate under the provisions o f Part 3 o f this Act, and (iii) by inform ation filed in the Court after the accused has been committed for trial by a M agistrate under the provisions o f Part 36 o f the Act, and (i) On complaint whether on oath or not. UNIVERSITY OF IBADAN LIBRARY Criminal Armoury T he above p rovisions are very c lear, sim ple and • m am biguous. T hey should therefore be given their simple, rural and ordinary meaning whenever it calls for interpretation in any Court o f law or com petent Tribunal. The intention o f the legislature in m aking the provisions is also very clear and easily ascertainable. In the case o f the High Court, the intention for the filing o f an information with proof o f evidence and the charge intended or sought to be preferred against the accused person is to allow the suspect to have a 'advance notice or knowledge o f the case o f the prosecution against him. It is also to give the Judge before whom the inform ation is filed or who is required to give leave to the prosecution to prefer or file the charge an opportunity to peruse those documents and know whether a prima fa cie offence has been disclosed or made out against the said accused person before granting his leave to the prosecution to file the charges.10 Another rationale for the filing o f an information and securing the leave o f the Judge is to ensure that an innocent person is not v ictim ized, or persecuted rather than prosecuted before the High Court which is a superior Court o f record on merely false allegation or act which do not constitute any offence in law. 10 Egbe v. State (1980) NCR 341; Ikomi v. State (1986) 3 NWLR (Pt 28) 340; Abacha v. State (2002) 32 WRN 1; (2002) 11 NWLR (pt 779) 497 and Ohwovoriole v. FRN (2003) 15 WRN 1; (2003) 2NWLR (pt 803) 176 at 194 - 195,208. UNIVERSITY OF IBADAN LIBRARY 1 0 Criminal Armoury It is im portant to note that there m ay be peculiar circum stances under which crim inal proceedings before the H igh Court itse lf m ay be instituted just like in the M agistrate Court on a com plaint w hether on oath or not in accordance w ith Section 77 (b) (iv) o f the CRIM IN AL PRO CED U RE ACT. To m y m ind, I hold the v iew that the distinction in the procedure for instituting o f Crim inal Proceedings before the M agistrate Court and the H igh Court under the provision o f Section 77 is deliberate and is intended by the legislature to make the institution or initiation o f proceedings in the former Court prompt, simple and less cumbersome. - Aluko v. D.P.P.11 The High Court has jurisdiction to try any offence whether triable by a Magistrate or not. 1 11 (1963) 1 ANLR 398 UNIVERSITY OF IBADAN LIBRARY __________________ _____________________ Criminal Armoury Federal High Court Essentially, there are some criminal offences that cannot re com m enced or tried by the M agistrate Court or the High Court either o f the Federal Capital Territory, Abuja or o f States. That m eans, on ly the Federal H igh C ourt has exclusive rnsdiction to hear/try such offences. Section 251 o f the 1999 Constitution provides for the jurisdiction o f the Federal High lourt. Section 251 (2) provides “the Federal High Court shall cave and exercise jurisdiction and powers in respect o f the treason, treasonable felony and allied offences” . Section 251 (3) provides “the Federal H igh Court shall also have and exercise jurisdiction and powers in re/spect o f rriminal causes and matters in respect o f which jurisdiction is conferred by subsection (1) o f this section” . O n this note, we are exam ining the procedure for comm encing crim inal proceedings in the Federal H igh Court as prescribed by Section 33 o f the Federal H igh Court A ct Laws o f Federation o f N igeria 2004 and also w hether the procedure for applying for leave to file inform ation provided under the Crim inal Procedure Act is applicable at the Federal High Court. Section 33 o f the Federal Fligh Court Act which provides that crim inal proceeding before the Federal H igh Court shall be conducted substantially in accordance w ith the provisions UNIVERSITY OF IBADAN LIBRARY 12 ________________________________________ Criminal Armoury of the Criminal Procedure Act expressly makes the application o f the said provision o f the Crim inal Procedure A ct or the substantial conduct o f criminal proceedings in the Federal High Court subject to the provisions o f the section (i.e. Section 33 Federal High Court A ct). Thus the application or invocation o f the provision o f the Crim inal Procedure A ct in the conduct o f Criminal Proceedings is only possible or perm issible subject to or in the absence o f any provision therefore in Section 33 (1) o f the Federal H igh Court A ct (supra). Therefore where a contrary provision is made in the Federal H igh Court A ct different from that in the Crim inal Procedure A ct, as regard the conduct o f crim inal proceedings, the form er shall prevail. This is im m ediately followed by a provision or an exception in subsection 2 o f Section 33 Federal H igh Court Act (supra) which provides that notwithstanding the generality o f subsection (1) o f the section all crim inal causes or m atters before the Court shall be tried summarily. This provision is also deliberately inserted or made in Section 33 w ith the intention by the fram ers o f Federal H igh Court A ct to make the criminal proceedings before the Federal High Court speedier, easier, and less form al or less cum bersom e than those in the State High Court where the Criminal Procedure Act is generally applicable. UNIVERSITY OF IBADAN LIBRARY ________________________________________ Criminal Armoury The provisions o f Section 77 and 340 o f the Crim inal Procedure A ct and on the filing o f inform ation and securing the leave o f the judge to prefer or file charges apply generally to the High Court in all the Southern States except Lagos State where the filing o f inform ation before a judge has been abolished by the Criminal Procedure (Amendment) Edict 1987. I am however, unable to agree w ith some authors who assert that the requirem ent for leave and the need for the Federal A ttorney G eneral to file a crim inal in fo rm ation are still prerequisites under the Crim inal procedure A ct applying to Criminal trials before or in the Federal Fhgh Court. M y stand is based on the express provision or exception made in subsection (2) o f section 33 o f the Federal H igh Court A ct (supra) which provides in a m andatory term that crim inal m atters or causes before the Court shall be tried summarily. It should also be em phasized that the provisions o f Section 77 is m ade only applicable subject to the provision o f any other enactment. Thus where there is another enactment or law as in the case o f the Federal H igh Court A ct (in its Section 33(2) or o f Lagos State (in its Edict No. 4 o f 1979) the application o f Section 77 in the Lagos State H igh Court or the Federal H igh Court is clearly excluded. The use o f the words “shall be tried sum m arily” used in subsection (2) o f Section 33(2) Federal High Court A ct also prescribes or enjoins a sum m ary trial o f UNIVERSITY OF IBADAN LIBRARY Criminal Armoury ( Crim inal cases before the Federal H igh C ourt sim ilar to sum m ary proceedings in the Magistrate Court as provided or in Section 277 o f the Criminal Procedure Act. Clearly from the wording o f the later section, trials on information are excluded or are different from the concept or conduct o f a sum m ary trial. The submission o f some people to the effect that trials in the Federal H igh Court should be by way o f inform ation is therefore wrong and misconceived. Consequent to Section 277 o f the Crim inal Procedure Act especially subsection (a) read along w ith Section 77(b) (ii) and (iii) o f same, trial by inform ation is generally excluded from sum m ary trial proceedings. In the light o f the foregoing deductions and w ith due consideration to Section 33(2) o f the Federal High Court Act, where in all Criminal Causes or matters before the Court shall be tried summarily, it follows and as rightly submitted that criminal proceedings cannot be initiated or instituted at the Federal High Court by way o f an information under section 77(b) (i), (ii) & (iii). In effect, criminal proceedings can only be commenced at the Federal H igh Court in the same m anner o f initiating criminal proceedings in the Magistrate Court under the summary UNIVERSITY OF IBADAN LIBRARY Criminal Armoury There is an exoneration and further support from Section . ♦ 2 o f the Crim inal Procedure A ct wherein charge is defined thus:- ' 'Charge m eans that statem ent o f offence or statem ent o f offences w ith which an accused is charged in a sum m ary trial before a Court”. Charge under the Criminal Procedure Act and following the definition, it, confined to a summary trial. The provision o f Section 33 (2) o f the Federal High Court A ct provides as seen supra) that Federal Fligh Court is a Court o f summary criminal jurisdiction. It is therefore regular and within the contemplation of the law that a charge be filed at the Federal H igh Court as a means o f initiating Criminal proceedings in that court. Oluwatoyin Doherty,12 in vindicating the view point had this to say: “Crim inal proceedings in the Federal H igh Court are instituted sum m arily against an accused person. In other words, a charge, as distinct from an inform ation is filed against the accused at the Federal High Court” . In M andara v. A. G. Federation13, the appellant was tried and convicted by the Federal High Court, Lagos on four counts charge o f treasonable felony, incitement to mutiny etc. 12 The author of the book ‘Criminal Procedure in Nigeria Law and Practice’ at page 71. 15 (1984) 4 S.C. 8 UNIVERSITY OF IBADAN LIBRARY 1 6 Criminal Armoury He appealed contending that the Court has no jurisdiction over the offences. Held it is not the law that Federal causes or offences should be prosecuted or litigated in Federal Courts; State H igh Courts can try Federal causes; The Federal High Court has no jurisdiction to try the ap p e llan t14 ,4This was the position of the law then when the case was decided but the law has been changed. Please see Section 251 (2) & (3) of the 1999 Constitution UNIVERSITY OF IBADAN LIBRARY Criminal Armoury Procedure fo r the yAmendment o f a Charge/Information Frankly speaking, it should be noted that a charge or an information may be altered on the basis o f its being imperfect, defective or erroneous. The Court may even perm it or direct the fram ing o f a new charge or add to or otherw ise alter the original charge.15 The question is?what is the procedure to follow? T his has been answ ered in Section 164 o f the Criminal Procedure Act. The intendm ent o f Section 164 o f the Crim inal Procedure A ct is that the procedure thereunder be applied only in situations where there is an actual amendment or alteration o f a charge. Thus, where there is an am endm ent or alteration o f a charge, it is m andatory that the amended or altered charge be read over to the accused and a new plea taken, otherw ise any trial based thereon will be a nullity. However, w hen it is a question o f a trial for a lesser offence than that charged, there is no need for a new plea to be taken16 It is im portant to note that section 165 o f the Crim inal Procedure A ct provides that “when a charge is altered by the 15 Section 162 & 163 of the Criminal Procedure Act and Section 181, 298, Criminal Procedure Code. Okegbu v. State (1979) 11 S. C. 63; Adeyemi v. State (1989) 1 CLRN p.60, at 65 and 66 . UNIVERSITY OF IBADAN LIBRARY 1 8 ________________________________________ Criminal Armoury Court after the commencement o f the trial the prosecutor and the accused shall be allowed to recall or re-summon any witness who m ay have been exam ined and be re-exam ined or cross — examine such witness w ith reference to such alteration”. Since it is provided based on the above section inter alia that the prosecution and the accused shall be allowed to recall or summon any witness who may have been examined or cross exam ined such w itness w ith reference to such alteration. It is clear that the addition to the phrase “w ith reference to such alteration” has created a condition which must be met before a recall o f such w itnesses could be made. The condition so attached is that the exam ination or cross exam ination m ust have reference to the alteration made by the am endm ent. It follows therefore that it w ill not be out o f place for a trial judge to refuse an application for a recall o f w itnesses w ithout satisfying the Court that the recall was necessary having regard to the alteration o f the charge.17 17 Ndukwe v. State (2005) 1 NCC p. 572 at 577. UNIVERSITY OF IBADAN LIBRARY j. . ; ~i Criminal Armoury acquirements o f ̂ Application to Profer a Charge/Information The law governing the proceedings o f criminal matters had m ade it com pulsory for the prosecutor to com ply with certain mode before a valid criminal proceedings can commence m any H igh Court. Section 77 (b) o f the Crim inal Procedure Act and-Section 185 o f the Criminal Procedure Code are explicit on this stand. Section 185 o f the CRIMINAL PROCEDURE CODE provides “N o person shall be tried by the H igh Court unless:- (a) he has been committed for trial to the High Court in accordance with the provisions o f Chapter XVII; or (b) ■ a charge is preferred against him without the holding o f a prelim inary inquiry by leave o f a judge o f the High Court; or ( f) a charge o f contem pt is preferred against him in accordance w ith the provisions o f Section 314 or Section 315. Sfecthon 77 provides “Subject to the provisions o f any other enactfrierit, crim inal proceedings m ay in accordance with the^foyisiorts o f this A ct be instituted — * MWtfUt UNIVERSITY OF IBADAN LIBRARY ________________ _______ Criminal Armoury (b) in the H igh Court - (i) by inform ation o f the A ttorney G eneral o f the State in accordance with the provisions o f Section 72 o f this Act, and (ii) by inform ation filed in the Court after the accused has been summarily committed for pejury by a Judge or Magistrate under the provisions of Part 3 o f this Act, and (iii) by inform ation filed in the Court after the accused has been com m itted for tria l by a M agistrate under the provisions o f Part 36 o f this Act, and (iv) on complaint whether on oath or not. Based on tire above law 18 19, in an application for leave to prefer a charge, all that the prosecution needs do is to show that there are facts on which to grant the leave. I f the resume o f the evidence o f the w itnesses as given by the state satisfy that condition, then leave would be granted. W hile I think it would be better and perhaps more honourable for the State to supply copies o f the statements o f the w itnesses along with the application for leave to prefer a charge, all that he needs do is to show that there are facts on which to grant leave. I f the resume o f the evidence o f the w itnesses as given by him satisfied this condition then the trial can properly proceed .Iv> 18 Section 185 Criminal Procedure Code 19 State v. Terban (1989) 1 CLRN p.330 @ 337. UNIVERSITY OF IBADAN LIBRARY Criminal Armoury In respect o f procedure for an application to prefer/ ■ iving an inform ation before the High Court, the Crim inal Procedure A ct has not set out the clear procedure for laying •: ic inform ation. All that Section 340 (2) (b) and 77(b) o f the Criminal Procedure Act provide is for filing an information by direction or w ith the consent o f a judge.20 The confusion in die Crim inal Procedure Act especially in Section 72, 77, 340 of die Criminal Procedure Act particularly with regard to absence o f procedure is due to reference in Section 72 to practice in England. T he A dm in istration o f Ju stice (M iscellaneous Provisions) A ct 1933 o f England which should be resorted to :s o f little relevance in E ngland now due to subsequent legislations and attendant rules. Since it is the duty o f the Attorney-General o f the State or the Federation to prosecute any offence as provided in Section i 174 and 211 o f die 1999 Constitution respectively, it is equally his discretion to charge some offenders and decline to charge others. This power is to be exercised having regard to public interest, interest o f justice and the need to prevent abuse o f legal process”. This power can be exercised only by A ttorney G eneral as he holds m inisterial responsib ility for it, and not collective executive responsibility. 2" R v. Zik’s Press Ltd 12 WAG A 2002 UNIVERSITY OF IBADAN LIBRARY 22 Criminal Armoury Therefore, the procedure whereby a trial on indictable offence w ill be in itiated by an application w hether in judge’s Chambers or in Open Court, the application is always made ex- pa rt e, at the back o f the person to be tried, asking for a discretion, not an absolute tight. There must be clear particulars and facts to justify the exercise o f the discretion. It is not the law, neither is it the justice, to say that once the application is made on information, and all necessary documents are .attached, without more, the application to prefer charge must be granted. It is never the practice in England to take filing o f an information as an abso lu te r igh t to have the in d ic tm en t asked for automatically tried. There must be facts in the proofs o f evidence to justify the grant o f the application. Otherwise, indictm ents will always be allowed to be tried where enough parfigulars are absent in the proofs o f evidence. I m ust not be understood tb hold that guilt o f the accused must be established before proving the inform ation to file the indictment; far from it. There must be prim a fa c i e case to be tried and the accused m ust be sufficiently linked to be in a situation where an explanation is f * necessary from him at the trial.21 The idea to indict through an inform ation is to save time in prosecution by obviating the necessity for a prelim inary 21 Abacha v. State (2002) 11 NSCQR p. 345 @ 364 - 365. in* UNIVERSITY OF IBADAN LIBRARY ________________________________________ Criminal Armoury investigation before a Magistrate. The Magistrate after hearing at the prelim inary investigation w ill decide on the evidence before him w hether there is a prim a fa cie case for the accused to answer and thus commit him for trial in the H igh Court. Preliminary investigation by a Magistrate has been deleted from Crim inal Procedure Laws o f various states. W hat a M agistrate was to decide under prelim inary investigation is whether there was a prim afacie case for the accused to answer if comm itted for trial in the High Court. Procedures and Grounds fo r Objection or Quashing o f an Indictment Section 167 o f the CRIM IN AL PRO CED U RE ACT provides that “any objection to a charge for any formal defect on the face thereof shall be taken immediately after the charge has been read over to the accused and not later” . Section 168 o f the above A ct provides for way by which objections could be cured by verdict. It m ust be noted that the Court w ill not give w ay too easily to mere formal objections on behalf o f accused person(s). Because, such m ay constitute a great blem ish on the judicial process ow ing to which offenders m ay escape other than by the manifestation o f their innocence.22 22 Kajubo v. State (1988) 1 NWLR (pt 73) 721 @ 738-739; Omoteloye v. State (1989) 1 CT.RN n.142 @ 157.________________________________________________ UNIVERSITY OF IBADAN LIBRARY ________________________________________ Criminal Armoury It is therefore necessary when the application is made to quash indictm ent on the inform ation for the trial judge to attend to such an application dispassionately and rule on it. The best way to do this is to read all the depositions made by potential witnesses and accused persons so as to find if there was a prima fa d e case for the accused to answer. In deciding whether a prim a fade case exists for the accused to answer in an information for indictment, the authorizing judge, or the judge before whom the indictment is placed, must look at the proofs o f evidence attached to the inform ation in totality and not to pick words out o f context. On w hat is a prima fa d e case? Prima fa d e is difficult to define precisely and some vital ingredients are clear. Facts tha are clearly revealing a crime and the crime links an accused person m ay be prim a fa d e evidence that the accused has som ething to explain at the trial. But that is not always the whole that is needed as circumstances m ust indicate. It is even very difficult in the face o f dearth or precise definition o f prim afade. The best definition is one proffered in an Indian case o f Sher Singh v. Jitenddranthen23 quoted w ith approval by Suprem e Court in A jidagba v. Inspector- General o f Police24 as follows: “W hat is m eant by prima fa d e case? It only means that there is ground for p roceed ing ... But a prima fa d e case is not the same as p roof which comes later 2243 (1931) 1 LR 59 Calc 275.(1958) 3 FSC 5: Abacha v. State (2002) 11 N'SCQR p. 345 @ 368. UNIVERSITY OF IBADAN LIBRARY ____ Criminal Armoury 2 5 when the Court has to find whether the accused is guilty or not guilty, . . . and the evidence discloses a p rim a fa cie case when it is such that if un-contradicted and if believed it will be sufficient to prove the case against the accused”. Thus if the facts, in a deposition w hether on oath or not, in prelim inary investigation are mere statements attached to an inform ation which do no disclose a p rim a fa cie case, the indictm ent m ust be quashed. The entire proofs o f evidence, Le. statement from relevant persons and perhaps also the suspect must be read and considered. It is now more so w hen there is no more provision for preliminary investigation by a Magistrate. It is not a m ere form ality to accept the inform ation w ithout considering the proofs o f evidence. To face a trial is not a m atter to be treated w ith levity, a trial som ehow infringes on the liberty o f the subject, m ost especially when it involves a serious offence punishable by death or life imprisonment. The question is, what constitutes a valid objection to an indictm ent? The list o f what constitutes valid objection to an indictment can therefore be summarized as follows:- (1) If the indictm ent has been preferred otherwise than in accordance with the provisions o f the law. (2) If it is drafted otherwise than in accordance w ith the law e.g. i f it is insufficiendy or incorrecdy particularized or if it charges m ore than one offence in one count/ bad for duplicity. UNIVERSITY OF IBADAN LIBRARY 2 6 ________________________________________ Criminal Armoury (3) I f it has not been preferred w ithin the time allowed by the law. (4) I f it has not been signed in accordance w ith the dictates o f the law. (5) I f the time lim its for the beginning o f trials have not been complied with. (6) If it charges an offence that is unknown to law. (7) I f it charges any offence in respect o f which necessary consents to the institution or confirm ation o f the prosecution have not been obtained. (8) If it charges an offence in respect o f which any relevant limitation period has expired before the commencement o f the prosecution. (9) I f it charges the accused o f an offence o f w hich he had already been convicted. (10) I f it charges the accused o f an offence o f which he had already been acquitted. (11) I f it charges the accused o f an offence o f which he had already been pardoned. (12) I f it charges a person who is immune from prosecution or whose acts at the relevant time are not susceptible to the jurisdiction o f the Court either by reason o f age or beingincapable, in law, o f committing the offence charged or; UNIVERSITY OF IBADAN LIBRARY . Criminal Armoury 2 7 (13) I f it charges a person who has been extradited from abroad w ith an offence that was not covered by the extradition proceedings. "5 2 25 See R v. Central Criminal Court & Nadir Ex parte Director of Serious Fraud Office, 96 CR APR R 248 and Fawehinmi v. A. G., Lagos State (No. 1) (1989) 3 NWLR (pt 112) p. 707: Ezeze v. State (2004) 51 WRN p. 135 at 145 - 146. UNIVERSITY OF IBADAN LIBRARY 28 Criminal A rmoury (C hapter ^Jujo Likely Defences in Criminal Offences Defence o f Provocation Provocation literarily indicates the act o f inciting another to do som ething especially to com m it a crime. O r som ething such as words or actions that affect a person’s reason and self- control especially causing the person to com m it a crime impulsively. By and large, the term provocation has been defined by the Suprem e Court to denote some acts or series o f acts (or utterance) done or said by the deceased to the accused person which would cause any reasonable person and which actually caused in the said accused person, a sudden and tem porary loss o f self control, rendering him (i.e. the accused) so subject to passion as to m ake him for a m om ent not a m aster o f his mind. The definition is however to be considered in the light o f the peculiar facts and circum stances o f each case. These include inter alia the station in life o f the accused person and UNIVERSITY OF IBADAN LIBRARY Criminal Armoury the society in which he lives as well as his prim itive condition or nature. See Lado v. State26 From the above definition, it is clear that for the defence o f provocation to avail the accused person the act or utterance o f the deceased must be directly or indirectly uttered against him. In other words, the alleged words o f insult said to be uttered by the deceased m ust have been directed against the accused or said to his hearing before it will be qualified as a provocation under the above definition. Provocation is governed by Section 283, 284 and 318 of the Crim inal Code and Section 97 o f the Penal Code. Section 284 o f the Crim inal Code provides that “a person is not crim inally responsible for an assault comm itted upon a person who gives him provocation for the assault; I f he is in fact deprived by the provocation o f the pow er o f self control, and acts upon it on the sudden and before there is time for his passion to cool; provided that the force used is not disproportionate to the provocation, and is not intended, and is not such as is likely to cause death or grievous harm . W hether any particular act or insult is such as to be likely to deprive an ordinary person o f the power o f se lf control and to induce him to assault the person by whom the act or insult is done or offered, and w hether, in any particular case, the person 26 (1999) 9 NWLR (pt 619) 369; R v. Afonja (1955) 15 WACA 26; R v. Adekanmi (1944) 17 NLR 99; R v. Igiri (1948) 12 WACA 377; R v. Akpakpan (1956) SCNLR 3; R v. Duffy (1949) 1 All E.R. 932.________________________________________ UNIVERSITY OF IBADAN LIBRARY 3 0 ___________ Criminal Armoury provoked was actually deprived by the provocation o f the power o f se lf control and w hether any force used is or is not disproportionate to the provocation, are question o f fact.” Section 283 C rim in a l Code prov ides th at: the te rm “provocation” used w ith reference to an offence o f which an assault is an element, includes, except as hereinafter stated any wrongful act insult o f such a nature as to be likely, w hen done to an ordinary person, or in the presence o f an ordinary persor to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial or fraternal relation or in the relation o f master or servant to deprive him o f the power t o f self control and to induce him to assault the person by whom the act or insult is done or offered. W hen such an act or insult is done or offered. W hen such an act or insult is done or offered by one person to another or in the presence o f another to a person who is under the im m ediate care o f that other, or to whom the latter stands in any such relation as aforesaid, the former is said to give to the latter provocation for an assault. A lawful act is not provocation to any person for an assault. An act which a person does in consequence o f excitem ent given by another person in order to induce him to do the act, and thereby to furnish an excuse for com m itting an assault, is riot provocation to that other person for an assault.” UNIVERSITY OF IBADAN LIBRARY ________________________________________ Criminal Armoury Section 318 Crim inal Code provides that “w hen a person who unlawfully kills another in circum stances w hich, but for the provisions o f this section would constitute m urder, does the act which causes death in the heat o f passion caused by grave and sudden provocation and before there is time for his passion to cool, he is guilty o f m anslaughter only” . In the light o f the laws quoted above, the ingredients o f the defence o f provocation are as follows; (a) The act relied upon by the accused is obviously provocative; (b) The provocative act deprived the accused o f self control; that is, the provocative act is such as to let the accused person actually and reasonably lose self- control. (c) The provocative act came from the deceased. (d) The retaliatory act o f provocation must be shown to be instantaneous to the act reacted against; and (e) The force used by the accused in repelling the p ro v o ca tio n is n o t d isp ro p o r t io n a te in the circumstance. T hese ingred ien t m ust co -ex ist to ground a p lea o f provocation — N wede v. State 27 27 (1985) 3 NWLR (pt 13) 444, Akalezi v. State (1993) 2 NWLR (pt 273) 1; (1993) 10 LRCN 264; Okonji v. State (1987) 1 NWLR (pt 52) 659 @ 67; (1987) 3 SCNJ 38; Alonge v. State (1971) 1 ALL NLR 47._______ . UNIVERSITY OF IBADAN LIBRARY _ Criminal Armoury It is also d ie law that what constitute provocation under Section 221 o f the Penal Code is a question o f fact and the law does not tabulate the types o f acts that are likely to cause provocation. It is mainly concern with the creation or existence o f provocation — Bassey v. The Queen 28 the Supreme Court held that where an accused person and his w ife p lanned and killed the deceased after the alleged act o f provocation, he could not enjoy or was not entitled to the defence o f provocation because he could not be said to have acted in a heat o f passion and his tem per had already cooled at the time o f k illing the deceased. Thus a planned act o f vengeance cannot be a ground for or amount to provocation under the law — Babalola John v. Zaria N ative A uthority29 It should be noted that words alone can constitute provocation depending on the position in life and primitiveness o f the accused and the society. However, in no way under our law can words said to be uttered to another person who m erely reported to the accused be capable o f causing provocation on the said accused against the alleged utterer who was not even around at the time o f the report o f the words said to the accused by the third party. If any loss of self control can occur from the words allegedly uttered by the deceased, the act o f the accused should have been directed on the reporter if the accused had acted in the heat o f passion and w ithout self control30 2» (1963) 2 SCNJ.R 183; (1963) 1 ALL NLR 280; In the case of Sunday Udofia v. The State (1984) 12 S. C 139 2‘* 2 (1959) NRNLR 43 and Ekpcnyong v. State (1993) 5 NWLR (pt 295) 513. » Ahmed v. State (1999) 7 NWLR (pt 612) 641; (1999) 5 SCN] 223; R v. Nwamjoku (1937) 3 WACA 208; R v. Adckanmi 17 NLR 99; Idemudia v. State (1999) 7 NWLR (pt 610) 202; Ukwunncnyi v. State (1989) 4 NWLR (pt 114) 131. UNIVERSITY OF IBADAN LIBRARY ________________________________________ Criminal Armoury 3 3 It is also a settled law that a provocative act or utterance offered or reported by one person cannot be a ground or justification for killing a third party (or person) who did not offer the act or was not heard to have uttered the alleged words against the accused person .31 Furtherm ore, it is the law that where there is evidence o f prem editated intention to kill, it is not consistent w ith the defence o f provocation and such evidence would consequently defeat the defence. Similarly, where there is a desire for vengeance w hether justified or otherwise, that will defeat the defence o f provocation.32 Also, provocation which could reduce w hat otherwise am ounted to murder to m anslaughter is a legal concept made up o f a number o f a co-existing elements. It is o f param ount im portance in the consideration o f this concept that the act is held out as a natural and justifiable reaction o f the provoked person and was not done in self-revenge but in ventilation o f a natural, sudden and contemporaneous feeling o f anger caused by the circumstances o f the occasion. On the other hand, the defence o f self-defence provides complete absolution from criminal liability. This is quite unlike the defence o f provocation which only operates to reduce the offence o f murder to manslaughter 33 31 Idemudia v. State (1999) 7 NWLR (pt 610) 202 @ 218; Omcnimu v. State (1966) NMLR 356; Ukwunneyi v. State (1989) 4 NWLR (pt 114) 131; (1989) 7 SCNJ 34. 32 Iikpenyong v. State (Supra); Udofia v. D.P.P. (Supra). 33 Apugo v. State (2004) 9 PR. P. 186; R.5. UNIVERSITY OF IBADAN LIBRARY Criminal Armoury However, taunts and insults could lead to provocation if they are o f such a nature that a reasonable m an in the heat o f passion could strike the taunter w ith any proportionate weapon that could be available to him. As Per Idoko C. J. O pined in the case o f State v. H embe34 that “the principle o f provocation is not drawn from an individual’s degree o f wrath. It is on the basis o f w hat a reasonable m an w ill do, given the circumstances. Individual’s fiendish conduct w ill not go to determ ine the v iew the court w ill take o f the proportionality o f the retaliation. A n illiterate m an knows w hat it m eans to take life. I f m ere taunting and insults could jerk the use o f knife or other leather weapons then nobody can be safe, in a country where people use their tongues to insult anyhow, w ithout at times caring for the truth or falsity o f w hat is uttered”. It is an established law that the provocation given to the accused m ust be from the deceased — R v. E bok35 In The State v. M athias E kpo36 where the accused on the 22nd o f A pril, 1973 was caught by the deceased in his raffia plantation. In the altercation that ensued, the deceased shot at the accused thigh and the accused retaliated by shooting the deceased by the neck and this subsequendy resulted in his 34 (1989) 1 CLRN p. 236 @ 243 35 19 UL.R. 84 @ 86; R. v. Nwamjoku (1937) 3 WACA 208; Omeninu v. The State (1966) 36 NMLR 356.(1975) 5 U.I.L.R. (pt 111) p. 350. UNIVERSITY OF IBADAN LIBRARY Criminal Armoury death. The court held that the defence o f provocation is available to the accused since the mode o f retaliation offered by the accused was commensurate w ith the attack made on him. Therefore, the defence o f provocation presupposes the loss in the accused person o f self-control which should in any given case be the motive force behind the retaliation. For a defence o f provocation to avail the accused person, he m ust have been deprived by the provocation o f the pow er o f self control and he m ust have acted upon it on the sudden and before there is time for his passion to coo l37 E ven though the accused set up the defence o f provocation, no amount o f provocation can excuse homicide or render it excusable except by virtue o f section 318 o f the Crim inal Code. For the killing o f another to be excused in the sense that it is reduced to manslaughter, the person seeking to evoke the defence o f provocation m ust satisfy the Court on the following elements namely: (a) . That he killed the deceased in the heat o f the passion caused by sudden provocation and; (b) That at the time o f killing the heat o f passion had not cooled38 37 See Brett and McLean’s the Criminal Law Procedure of the Six Sourthern States of Nigeria 2nd Edition by C. O. Madurikan p. 692; para. 1806. 38 Ihuebeka v. State (2000) 2 SCNQR (pt 1) p.186 R.8. UNIVERSITY OF IBADAN LIBRARY ________________________________________ Criminal Armoury It m ust however be borne in m ind that it is not even slight provocation even by striking o f blow that w ill justify the accused person to retaliate with a weapon, such as a matchet or gun, that is lethal and likely to cause death. Provocation giver to the person provoked must be commensurate to the offence comm itted. Since the law presum es that a m an intends the natural and probable consequences o f his acts. And the test to be applied in this circum stances is the objective test namely, the test o f w hat a reasonable m an would contem plate as the probable result o f his acts39 39 Garb? v. The State (2000) 2 SCNQR (pt 1) p. 402. UNIVERSITY OF IBADAN LIBRARY Criminal Armoury Defence o f S elf Defence In defence o f life, goods or possessions, a man may justify laying hands upon another who w rongfully seeks to deprive him o f them , provided that he does not use more force than is necessary for the purpose. A mere apprehension of danger o f goods or person w ill not suffice 40 Self defence literally connotes the right to defend one’s body, actions, rights against an attacker(s). Section 32 and 286 — 288 o f the Crim inal Code are relevant to this topic. S. 32 o f the Criminal Code provides that: “A person is not criminally responsible for an act or omission :f he does or om its to do the act under any o f the following circumstances — (1) in execution o f the law (2) in obedience o f the order o f a com petent authority which he is bound by law to obey, unless the order is manifestly unlawful; (3) when the act is reasonably necessary in order to resist actual and unlawful violence threatened to him, or to another person in his presence; (4) when he does or om its to do the act in order to save him self from im m ediate death or grievous harm threatened to be inflicted upon him by some 40 The State v. John Umuru (1968) NMLR 15. UNIVERSITY OF IBADAN LIBRARY 38 Criminal Armoury person actually present and in a position to execute the threats; and believing h im self to be unable otherwise to escape the carrying o f the threats made to him. W hether an order is or is not manifestly unlawful is a question o f law. But this protection does not extend to an act or omission which would constitute an offence punishable w ith death, or an offence o f which grievous harm to the person o f another, or an intention to cause such an harm , is an elem ent, no t to a person w ho has by entering into an unlawful assistance or conspiracy rendered h im self liable to have such threats made to him. Section 286 C rim in a l Code w hen a p erso n is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault: Provided that the defence used is not intended and is not such as is likely, to cause death or grievous harm . I f the nature o f the assault is such as to cause reasonable apprehension o f death or grievous harm, and the person using force by way o f defence believes, on reasonable grounds that he cannot otherwise preserve the person defended from death or grievous harm , it is lawful for him to use any such force to the assailant as is necessary for defence, even though such UNIVERSITY OF IBADAN LIBRARY Criminal Armoury 39 force m ay cause death or grievous harm ”. It has been held also that the deceased was the aggressor and that the appellant/ accused acted in self defence. The accused m ust be shown to have used m ore force than was necessary to defend himself. The protection afforded by these provisions, therefore, fully V-: availed him , even if we had held that it was his fist b low that had killed the deceased. The editors Brett and Me Lean’s The Crim inal Law and Procedure o f the Six Southern State o f N igeria comm ented on se lf defence in a situation where, as w e have here, there has been a fight between the deceased and the accused. In paragraph 1860 they had this to say: “K illing by fighting (i.e. in quarrel and not in the course o f resistance to a lawful arrest or other lawful use o f force) m ay be either m urder, m anslaughter or hom icide in self defence according to the circumstance... such a k illing... will be murder unless it is justified or excused by law, or under such provocation as to reduce the offence to m anslaughter... In paragraph 1869 the editors quoted the follow ing passage from the judgm ent o f Lindley, J. In R. v. Knock41 If a m an attacks me, I am entitled to defend m yself, and the difficulty arises in drawing the line between m ere self-defence and fighting. The test is this: a man defending him self does not want to fight and defends himself solely to avoid fighting. Then 41 (1877) 14 Cox C.C.I UNIVERSITY OF IBADAN LIBRARY ________ Criminal Armoury supposing a man attacks, and I defend myself, notintending or desiring to fight, but fighting — in one sense — to defend m yself and I knock him down, and thereby unintentionally kill him, that killing is accidental”. But the defence o f self defence in my v iew is different. Before the defence as available; It m ust be shown by the person relying upon it that he reasonably believed that there was no other w ay o f saving him self from death or grievous bodily harm other than by using such force as he did and that he tried to disengage from the event which led to the application o f such force. For an accused to avail h im self o f the defence o f self-defence, he m ust show by evidence that he took reasonable steps to disengage from the fight or m ake some physical w ithdrawal. But the issue o f disengagement depends on the peculiar circumstances o f each case.42 Where it is established that an accused was the aggressor in the act that led to the death o f the deceased, the defence o f self defence would not avail h im 43 The effect o f Section 59, 60, 62, and 65 o f the Penal Code is that one m ay kill if one m ust, to repel a grave assault on personal liberty, honour, or life and limb and it is not an offence when the killing is done within the limits laid down in 42 Nkemji v. State (2005) 3 FRp.95 @ 112. 43 State v. Hembe (1989) 1 CLRN p. 236 @ 241 UNIVERSITY OF IBADAN LIBRARY ________________________________________ Criminal Armoury Section 62 o f the Penal Code o f doing no m ore harm than is necessary — Abadallabe v. Bornu N ative Authority. 44 It should be noted that a person acting in self defence is at all material time, master o f his own passion and he acts only to prevent him self from being destroyed. A nd since the Court will not allow a defence no matter how improbable or stupid to go uninvestigated once it raises a reasonable doubt in the case o f the prosecution.45 In order to establish the defence o f self- defence; the evidence m ust show or tend to show that the accused believed on reasonable ground that he could not otherwise preserve himself from death or grievous bodily harm than by using such force as he did — See Q ueen v. Reuben Enyi Jim obu46 W hen an issue o f self-defence arises, the failure o f the accused to retreat w hen it was possible and safe for him to do so is simply a factor to be taken into account in deciding whether it was necessary for the accused to use force and w hether the force used by him was reasonable. 47 44 (1963) 1 ALL NLR. 154. 45 Opeyermi v. The State (1985) 2 NWLR (pt 5) 101 @ 102-103. 46 (1961)1 ALL NLR p.627. 47 R. v. Walfer Innes 55 CAR p.551. UNIVERSITY OF IBADAN LIBRARY Criminal Armoury No Case Submission It is instructive to state it here that in R v. Coker & ors48 H ubbard J. put it clearly that a submission that there is no case to answer means that there is no evidence on which the Court would convict even if the Court believed the evidence given by the prosecution.49 Section 241 o f the Crim inal Procedure Act governs no case subm ission . It provides “after the case for the prosecution is concluded, the accused or the legal practitioner representing him, I f any, shall be entided to address the Court at the com m encem ent or conclusion o f his case, as he thinks fit, and if no witnesses have been called for the defence, other than the accused him self or witnesses solely as to the character o f the accused and no docum ent is put in as evidence for the defence the person appearing for the prosecution shall not be entided to address the Court a second tim e but i f in opening the case for the accused has in addressing the Court introduced new m atter w ithout supporting it by evidence the Court, in its discretion, may allow the person appearing for the prosecution to reply”. A submission that there is no case to answer means that there is no evidence on which the Court could convict even if 4498 20N LR62.Tongo v. C.O.P. (2007) 30 NSCQR (ptl) Pg 180 @ 192 -194 UNIVERSITY OF IBADAN LIBR RY ________________________________________ Criminal Armoury the Court believed the evidence given; the subm ission should be lim ited to that and the Court should not be addressed on the credibility o f the w itnesses or the w eight o f the evidence i f they are accom plices R v. Coker50 It is also proper to call to m ind the Practice D irection o f Lord Parker, Lord Justice o f England in (1962) 1 W LR 227. No case submission may be upheld where: (1) There was no evidence to prove an essential elements o f the alleged offence, and (2) The evidence adduced has been so discredited as a T& result o f cross examination. (3) The evidence is so m anifestly unreliable that no reasonable Tribunal can convict on evidence so far led, there is a case for the accused to answer51 when an accused rests his case on no case submission, the effect is that he banks his case com pletely on the evidence adduced by the prosecution. To m y mind, he takes a risk as he m ust stand or fail upon such evidence adduced by the prosecution. A t times, it can be perilous to take a risk. I f a judge or Tribunal rules against a submission o f no case to answer, he does not by virtue o f that fact shift the onus o f p roof from the prosecution to the accused52 50 (1952) 20 N.L.R. 62. 5521 Igabele v. State (2005) 1NCC p.59,Daboh & ors v. State (1977) 5. S.C. 171 @ 214. UNIVERSITY OF IBADAN LIBRARY 44 Criminal Armoury It has been said that apart from the three conditions stated above, a Tribunal/Court should not in general be called upon to reach a decision as to conviction or acquittal until the whole o f the evidence which either side w ishes to tender has been placed before it. I f however a subm ission is m ade that there is no case to answer, the decision should depend not so much on whether the adjudicating Tribunal/Court (if compelled to do so) would at that stage convict or acquit but on whether the evidence is such that a reasonable Tribunal m ight convict. I f a reasonable Tribunal m ight convict on the evidence so far laid before it, there is a case to answer.53 I f a submission is wrongfully overruled and evidence is given thereafter which warrants a conviction, the position on the Nigerian authorities is that the conviction w ill not be upset on appeal.54 Later, in the case o f R v. Asaba and others55 the Federal Suprem e C ourt held where a subm ission had been overruled but states later that if a subm ission is w rongly overruled an appeal against a subsequent conviction would succeed. It should be noted that if submission is upheld the proper verdict is one o f acquittal56 if the judge holds that there is a case to answer, his observation should be confined to the ruling 53 Practice Direction (1957) 1 WL.R. 750; 41 Cr. App. R. 142; (1962) 1 WL.R. 227). 54 (R v. Ajani (1936) 3 WACA 3; Eregre v. Police (1954) 14 WACA 453). 55 (1961) 1 AfTNLR 673 56 (R v. Olagunju (1961) 1 ALL N.L.R. 21) UNIVERSITY OF IBADAN LIBRARY ________________________________________ Criminal Armoury and it is as a rule desirable that there should be no observations on the facts o f the case at that stage at a ll.57 A subm ission o f no case m eans that even if the prosecution witnesses are believed yet their evidence does not establish the offence charged. In a subm ission o f no case, counsel for the defence cannot address the Court on the credibility o f witnesses. And where counsel rests on his no case subm ission the trial Court is obliged to consider the prosecution’s case carefully; decides on the credibility o f the prosecution’s w itness and the weight to be attached to their evidence. Therefore, resting on a no case subm ission is a perfectly legally acceptable stratagem but when the prosecution’s case calls for some explanations which only the accused person can give and such accused decides to rest on a no case subm ission then the trial court m ust not be deterred by the incom pleteness o f the tale from draw ing the inferences that properly flow from the evidence it has got nor dissuaded from reaching a firm conclusion by speculation on what the accused might have said had he testified. 57 (R v. Ekanem (1950) 13 WACA 108). UNIVERSITY OF IBADAN LIBRARY 46 Criminal Armoury Defence o f justification, Excuse and Compulsion Justification literarily connotes an acceptable reason(s) for doing something. Justification is a defence to commission o f a crime. It is a defence both under Criminal Code Act and Penal Code. In discussing this defence, one is tempted to ask, does a person have justification or excuse or can he be compelled to comm it a crime? The answer to this question is answered by both Crim inal Code and Penal Code. Since in crim inal law, the prosecution has the burden o f proving the case against an accused person beyond all reasonable doubt, all the facts in a particular case and the Court has duty to consider all the defences possible or available to the accused on the facts even though they appear to be stupid, improbable or unfounded.58 To consider the defence o f justification, recourse shall be made to Section 32 o f the Crim inal Code and Sections 45 — 47 o f the Penal Code. Section 32 o f the Criminal Code provides as follows: “A person is not criminally responsible for an act under any o f the following circumstances. 58 Abara v. State (1981) 2 NCLR 110; Ekpenyong v. The State (1993) 5 NWLR (pt 295) 513; Udofia v. D.P.P Digest of Supreme Court Cases Vol. 10, p.348; Nwauzoke v. The State (1988) 1 NWLR (pr 72) 529; Rex v. Bio (1945) 11 WACA 46 @ 48; Asanya v. State (1991) 3 NWLR (pt 180) 422 @ 451; Ogunleye v. The State (1991) 3 NWLR (pt 177) 1). UNIVERSITY OF IBADAN LIBRARY Criminal Armoury (1) In execution o f the law (2) In obedience to the order o f a com petent authority w hich he is bound by law to obey, un less the law is manifestly unlawful. (3) W hen the act is reasonably necessary in order to resist actual and unlawful v iolence threatened to him or to another person in his presence; (4) W hen he does or omits to do the act in order to save h im self from im m ediate death or grievous harm s threatened to be inflicted upon him by some person actually present and in a position to execute the threats, and believing himself to be unable otherwise to escape the carrying o f the threats into execution: But this protection does not extend to an act or omission which would constitute an offence punishable w ith death, or an offence o f which grievous harm to the person o f another, or an intention to cause such harm , is an elem ent, nor to a person w ho has by entering into an unlawful association or conspiracy rendered him self liable to have such threats made to him . W hether an order is or is not m anifestly unlawful is a question o f law. It is sacrosanct to reveal that section 32 o f the Crim inal Code affords a complete defence to a crim inal charge in cases UNIVERSITY OF IBADAN LIBRARY 4 8 ________________________________________ Criminal Armoury in which it is applicable. For example, subsection 1 would protect the hangman who carried out judicial execution; otherwise the section does not apply to a charge o f m urder Alagba v. The State59 nor a person who has joined a society o f which one of the object is m urder - R v. O bodo60 Subsection 2 gives a lim ited protection in all circum stances to m em bers o f the m ilitary and police forces; in case o f riot they have the further protection o f Section 280 o f the Criminal Code which extends even to act(s) causing death or grievous harm. Unlawful violence in paragraph 3 does not appear to include the consequences of negligence, and it is subm itted that section 26, and not this section, would apply in relation to acts done to accord danger from, for example, a motor vehicle negligently driven. Paragraph 4 expressly refers to a threats made by another person, and the use o f the w ord “unlaw ful” in paragraph 3 im plies a human agency so that neither paragraph would apply to acts done to avoid danger arising from natural causes e.g. from a m ad dog or a fire. In a such case, it would appear that section 26 m ight apply. Under Section 33 (2) (a)-(c) o f the 1999 constitution it is law ful for a person to take life in a circum stances as are perm itted by the law if such an act is reasonably necessary. 59 (1950) 19 NLR129 60 (1958) 4 F.S.C.l. UNIVERSITY OF IBADAN LIBRARY Criminal Armoury A person shall not be regarded as having been deprived o f his life in contravention o f this section, i f he dies as a result o f the use, to such extent and in such circum stances as are perm itted by law, o f such force as is reasonably necessary; (a) For the defence of any person from unlawful violence or for the defence o f property. (b) in order to effect a lawful arrest or to prevent the escape o f a person lawfully detained or (c) for the purpose o f suppressing a riot, insurrection or mutiny. Section 45-47 o f the Penal Code states as follow; Section 45 Nothing is an offence which is done by any person who is justified by law or who by reason o f a m istake o f fact and not by reason o f a m istake o f law, in good faith believes h im self to be justified by law in doing it. Section 46 N othing is an offence which is done by a person when acting judicially as a court o f justice or as a member o f a court o f justice in the exercise o f any pow er which is or * which in good faith he believes to be given to him by law Section 47 says: N othing which is done in pursuance o f or which is warranted by the judgm ent or order o f a court o f justice, if done while such judgment or order remains in force, is an offence, notw ithstanding that the court m ay have no UNIVERSITY OF IBADAN LIBRARY 50 Criminal Armoury jurisdiction to pass such judgment or order provided the person doing the act in good faith believes that the court had such jurisdiction. So also Section 33 o f the Criminal Code explains defence o f compulsion which provides: “A married wom an is not free from criminal responsibility for doing or om itting to do an act merely because the act or omission takes place in the presence o f her husband. B ut the w ife o f a Christian m arriage is not criminally responsible for doing or omitting to do an act which she is actually com pelled by her husband to do or om it to do and which is done or om itted to be done in his presence, except in case o f an act or omission which would constitute an offence punishable with death, or an offence o f which grievous harm to the person o f another, or an intention to cause such harm, is an element in which case, the presence o f her husband is immaterial. This section affords a defence to the w ife personally, but does not alter the nature o f her act or om ission, and the h usband m ay be convicted in respect o f it under section 7 o f the Criminal Code.61 Christian marriage mentioned in section33 above is defined in section 1 o f the Crim inal Code to m ean “a marriage which is recorgnized by the law o f the place where it 61 R v. Bourne (1952)36 Cr. App.R.125. UNIVERSITY OF IBADAN LIBRARY Criminal Armoury is contracted as the voluntary union for life o f one m an and one wom an to the exclusion o f all others. Generally speaking, from the above quoted provisions o f the two codes, one is left in no doubt that there are similarities between the defences being discussed and some other defences like m istake o f fact, by husband or w ife and necessity. The defences under consideration are open to m ilitary and police officers, to court judges, officials and to individuals in cases o f assault and like offences and particularly married women acting under the influence of their husbands. It is appropriate at this juncture to cite the case o f R v. Obodo & 4 others,62 in support o f the contention that an accused person who belongs to a secret society and whose aim is to kill others cannot take cover that he was compelled to act in obedience to his society’s orders, which naturally, are unlawful. The first appellant murdered a wom an in the presence o f other appellants and others who were members o f the secret society known as the O dozi Obodo Society whose object was to kill thieves and others. Adem ola C.J.F. held at page 3 as follows: “we think it necessary to emphasise that if a person joins a society o f which one o f the objects is murder, and is present and acquiescent 62 (1959) 4 F.S.C. 1. UNIVERSITY OF IBADAN LIBRARY 52 Criminal Armoury when a m urder is carried out in pursuance o f the objects o f the society, it is no defence to say that he did not com m it the murder with his own hand, or even that he refused, a command to do so, unless the circum stance o f his refusal w ere such as to indicate a com plete and final repudiation o f the society, which none o f the present applicants, can claim to have made. Even if it is true that some of them only joined the society and were present at the murder because they were threatened with death if they refused, section 32 o f the Criminal Code makes it clear that this is no defence in law to a charge o f m urder” Thus the essential element required for the defence of justification under section 45 o f the Penal Code is that the accused must act in good faith and must exercise due enquiry on his be lief before his action can or w ill be justified.63 In this regard although an honest and reasonable mistake o f fact m ay be excusable under the defence o f justification, a mistake o f law is not so excusable. In any case as in the case o f w itchcraft, the standard o f living or the position in life o f the accused person as well as the manner o f life o f the community have to be considered by the court.64 H owever, the standard o f test for the justification o f the act o f the accused person under section 45 should be an objective one like that o f the provocation. “ See the comment in the Annotated copy of the Penal Code at page 241 thereof. “ (Lado v. The State (1999) 9 NWLR (pt 619) 369 @ 381; Rex v. Adamu (1944) 10 WACA 161; Akalezi v. The State (1993) 2NWLR (pt273) p.l; (1993) 10 LRCN 264; Ubani v. The State (2001) FWLR (pt 44) 483; (2001) 7 NWLR (pt713) 587 and Kkpcnyong v. The State (1993) 5NWLR (pt 295) pg 513). UNIVERSITY OF IBADAN LIBRARY Criminal Armoury 5 3 In the case o f Abubakar D an Shalla v. The State65 The facts o f this case is on or about the 14th o f Ju ly 1999, a rum our was spread within the neighbouring villages o f Randall and Kardi o f Birnin Kebbi Local Governm ent Area o f Kebbi State to the effect that one Abdullahi Alhaji Um aru o f Randali village has insulted or defamed the Holy Prophet Mohammed. The appellants who are o f Kardi village on hearing the rumour left for Randali in search o f the said Abdullahi A lhaji Umaru. A lthough they could not arrest him at Randali, they eventually caught him at Kardi village, he was taken to the outskirts o f the village, and held or kept under the custody o f the 4 th and 5th appellants at a place near the graveyard. The 1st,2nd, 3rd,and 6th appellants then went to the village head at Kardi and informed him that the person said to have insulted or deform ed the Holy Prophet had been caught in his village and the appropriate punishm ent to be m eted out to him under Sharia was death. The appellants therefore asked for his sanction to kill the said Abdullahi A lhaji Umaru. The village head failed to give them any answer or reply and the 1st, 2nd, and 6th appellants left and went back to the grave-yard where U m aru was being held by the other appellants. O n getting back to the graveyard, the 3 rd appellants brought out an Islamic text book called Risala and read from it 65 (2004) 35 W R. N. 43. UNIVERSITY OF IBADAN LIBRARY 5 4 Criminal Armoury that the punishment o f any person who insults or defamed the Holy Prophet was death. There upon, the 5th appellant strucked the deceased by the neck w ith his matchet. W hen U m aru fell on the ground from the matchet blow, the 1 st appellant brought out a sharp knife and slaughtered him. W hen the deceased was dead, they all dispersed leaving his corpse at the scene. The corpse was later removed by the police. After due investigation, the appellants were arrested. In their statements to the police, exhibits “E” to “K ” the appellants confessed to the killing o f the deceased together because they heard the rum our that he had insulted or blasphemed the Holy Prophet. A t the H igh Court o f K ebbi State, the appellants were charged w ith crim inal conspiracy, abatem ent and culpable hom icide punishm ent w ith death contrary to Section 85, 97 and 221 act o f Penal Code. The appellants pleaded not guilty. At the trial, the prosecution called eight witnesses and tendered some exhibits. The appellants however rested their case on the evidence adduced by the prosecution and elected not to give/ call any evidence in their defence. Their counsel during the trial did not raise or prove any defence for them. In his address, their counsel only raised the defence o f justification under sharia rather than under the Penal Code. A t the conclusion o f trial, court found the appellants guilty as charged and sentenced all o f them to death. D issatisfied, the appellants appealed to UNIVERSITY OF IBADAN LIBRARY Criminal Armoury the Court o f Appeal, His Lordship Adam u JC A at p. 68-69 o f the report “ it w ill be very clear that the appellants w ith their shallow knowledge o f Sharia or Islam ic law and calling themselves muslim brothers, have in ignorance or deliberately disregards o f the rules o f judgm ent and procedure under the said Sharia as contained in the text o f R isala, arrogated to themselves the function and role o f a Court o f law or a Khadi and wrongly (without any prove or evidence) or based on rumor or hearsay, convicted, sentenced and inflicted or carried out the execution o f the supposed punishment. They can not claim that to be the w ay o f life o f their com m unity because they were not supported by both the village head and Utaz Mamman. Although, the prosecution did not call the Utaz as a witness, it is however clear, that he gave them the advice in the presence o f some o f the witnesses (e.g. P.W 2) but they refused to heed and even went to the extent o f describing him as an infidel or a non-M uslim for giving such an advice. There is also no legal justification in the action taken by the appellants in killing the deceased for his supposed offence. Islam ic religion is not a prim itive religion that allows its adherent to take the law into their hands and to com m it jungle justice. Instead there is a judicial system in Islam which hears and determ ines cases including the trial o f crim inal offence against the religion or against a fellow M uslim brother should be taken to the Court UNIVERSITY OF IBADAN LIBRARY 56 Criminal Armoury (either a Sharia or a peculiar common law Court) for adjudication it is only when a person is convicted and sentenced by a Court o f law that he w ill be liable to a punishm ent which w ill be carried out by appropriate authority (i.e. the prison). Although, it is true that there is the provision in Risala which prescribes the punishm ent o f death on any Muslim who insults the Holy P rophet such pun ishm ent can on ly be im posed by the appropriate authority (i.e. the Court) rather than by any member o f the society whether a Muslim or otherwise. Per O puta J.S .C . in Atano v. A.G. (Bendel) 66 said “it w ill thus be to the advantage o f all in m aking submission of no case because counsel knows exactly that he is attacking sufficiency o f the evidence or veracity o f the w itnesses. It is also necessary to indicate whether counsel wants to rest on his submission. Such initial foreknowledge will surely limit the scope o f the subm ission and prevent any long ru ling on an equally long submission o f no case” . 6 66 (1988) 2NWLR (pt 75) p.206 @231 UNIVERSITY OF IBADAN LIBRARY _ Criminal A rmoury Resting on the Case o f the Prosecution It is trite law that a party or a litigant has a right to choose whether to adduce evidence in support o f his case or not and Court has no power to interfere w ith the exercise o f that right. Similarly, an accused person or a subject, has a right to choose whether to file a defence to the charge/information(s) against him or not. I think, once that choice is m ade and that choice was acted upon by both parties in the suit and by the Court, the party that made the choice cannot turn round afterwards and seek to be allowed time w ithin which to file a defence and call evidence in order to repair his damaged case. If the Court indulges parties in this way, there will be no end to litigation. The practice or ru le o f resting on the case o f the prosecution, that is, in effect submitting that the respondent as p la in tiff failed to make out a prima fa d e case and by electing, in consequence, not to call evidence in support o f their own case. The legal position in such a case is, o f course, that the appellants are bound by the evidence called in support o f the case for the respondent qua plaintiff/the accused, and the case must be dealt w ith on the evidence as it stands per Lord Greene M. R. in Laurie v. Raglan Building Co. L td67 67 (1942) 1 K.B. 152 @156. UNIVERSITY OF IBADAN LIBRARY 58 Criminal Armoury This is a defence which is available to the accused person or the defendant(s). This indicates that it is available both in civil or crim inal cases. The practice in such cases is for the learned trial judges to refuse to rule on the submission unless counsel for the defendant/accused person makes it clear that he is go ing to call no evidence. W here a defendant rests his case on the p la in tiff’s or accused person’s, h e 'is in effect submitting that the plaintiff has failed to make a prim a fade case and electing in consequence, not to call evidence in support o f his own case. A defence counsel who announces that he is resting his case on that o f the prosecutor/the plaintiff must be understood to be saying either: (a) that the p la in tiff has not made out any case for the defendant to answer or (b) that the defendant has a complete answer in law to the p laintiff’s case. Once counsel makes this announcement and addresses the Court on it, he m ust stand by the subm ission68 Per O puta J.S .C . in Alii and anor v. The State69 said “it is always a gam ble to rest the defence on the case o f the prosecution where the issue is such that even if all the prosecution w itnesses are believed, yet the offence charged 68 Tandor v. C.F.A.O. of Accra (1944) 10 WACA 186. 69 (1988) lN W LR(pt68)p.3 UNIVERSITY OF IBADAN LIBRARY Criminal Armoury has not been proved it may be perm issible to rest on the case o f the prosecution. But counsel w ill be taking a b ig risk where the issues o f fact w ill have to be decided in favour o f an accused person before his case on that o f the prosecution will be highly prejudicial”. On His Lordship’s part, Craig JSC at page 13 o f the case stated that it means no more than the accused person did not wish to explain any fact or rebut any allegation made against him. Indeed the situation is like or akin to a counsel for an accused person, m aking a no case subm ission and relying or resting on it com pletely”. The risk involved in tak ing such a stance, is the type eloquently highlighted, by the Privy Council in the case o f The Queen v. Shampal Snigh70 and considered by the Suprem e Court, in the case o f N wede v. The state.71 Resting the defence on the case o f the prosecution is a defence and the defence is that the case as charged had not been proved by the prosecution — Edet Akpan v. The State.72 70 (1962) 2 NWLR 233 @ 243-245 71 (1985) 3NWLR (pt444) @ 455 72 (1986) 3NWLR (pt 27) p. 225. UNIVERSITY OF IBADAN LIBRARY 6 0 Criminal Armoury Defence o f y ilib i The defence o f alibi connotes that at the time the crime or alleged crime was committed, the accused was somewhere else; not at the place the crime was com m itted or allegedly comm itted.73 In other words, it is the case o f the accused that he was not at the scene o f crime or locus criminis at the material time when the crime was committed or allegedly to have been comm itted. A nd so, the accused said that he can not by any stretch o f imagination be said to have comm itted the crim e as it is hum anly im possible for him to be in two places at the same time and moment. In the words o f Per Oputa JSC in the case o f Okosi v. State74 his Lordship expressed his view as follows; “A lib i is the com m onest o f all defences R v. Liddle,75 H ewart R.C.J, it does not require ingenuity but ordinary com m on sense to conceive that a person charged m ight say — I was not at the scene and at the time the alleged offence was committed. I was somewhere else, therefore I was not the one who com m itted the offence. This is what Alibi m eans”. Therefore, i f an accused raises unequivocally the issue o f A libi ,that is to say that he is somewhere else other than the locus delicti at the tim e o f the comm ission o f the offence for which he is charged and gives some facts and circum stances 73(Adio v. State (1986) 3 NWLR (pt84) 548; Adekunle v. State (1989) 5 NWLR (ptl23) 505. 74 (1989) 1 CLRN p.29, @48 paras B-G. 75 (1930) 21 Cr. App. R. 3 at p. 13. UNIVERSITY OF IBADAN LIBRARY Criminal Armoury of his whereabouts, the prosecution must investigate that Alibi to verify its truthfulness or otherwise. No burden is placed on the accused to prove his Alibi once he has giving the particulars o f his whereabouts clearly, he m ust give some lead that w ill reasonably lead the prosecution in their investigation — Yanor v. The State.76 But the accused should not m erely state that he was not at the locus delicti w ithout giv ing any lead, for by failing to give particulars o f his whereabouts, d ie prosecution will have no lead to their investigation — Ozulonye and ors v. The State.77 The failure o f the prosecution to investigate the facts and c ircum stances g iven by an accused p erson o f his whereabouts render the alibi unrebutted and it m ay vitiate the proof beyond reasonable doubt against the accused raising the alibi. The police, however are not expected to go on a w ild goose chase, in order to investigate an Alibi. A ny accused setting up A libi as a defence is duty bound to give to the police, at the earliest opportunity, some tangible and useful inform ation relating to the place he was, and the person w ith whom he also was — Gashi v. The State78 The prosecution has a duty to investigate an accused person’s A libi but only when such A libi is set up at the earliest 76 (1965) 1 ALL N LR193. 77 (1981) I)ICR 38 at 50and 51. 78 (1965) N. M. L. R. 333, Nnunukwe v. The State(2004) 12 FR p. 48 at 64; Odili v. The state (1977) 454 S.C.I; Onafowokan v. The state (1987) 3 NWLR (pt 61) 538; Bozim v. The state (1985) 3 NWLR (pt8) 62; Okosi v. The state (1989) 1NWLR (pt 100)@ 65. UNIVERSITY OF IBADAN LIBRARY 6 2 Criminal Armoury opportunity during the investigation preferably in the accused person’s statem ent to the police. An A libi raised for the first tim e from the w itness box cannot be considered as a serious defence. A t best it is an after-thought. The positive evidence o f the prosecution w itnesses w ill out-weigh this w eak and belated Alibi. H ow ever incredible an A lib i m ay be, it should not be disregarded by the Court unless there is overwhelm ing evidence to rebut it, for example, having regard to the failure o f the accused person to supply particulars o f his whereabouts or where there is direct and positive evidence o f participation.79 Although there are occasions in which a failure to check an A lib i m ay cast doubt on the reliability o f the case for the prosecution, in such a case if the accused can be identified by eye-witness(es) at the scene o f the crime such doubt does not arise N tam v. State80 The defence o f the A libi crum bles the m om ent the prosecution gives superior evidence than that o f the accused, by fixing perm anently the accused person not only at the scene o f crime but also in the commission o f the crime, in a way that if a photograph was taken at the time, or it will clearly show or depict him in rom ance w ith the crime he is charged with. It is however the law that failure o f the prosecution to investigate the facts and circumstances given by an accused person o f his 79(Nwosisi v. State (1976) 6.S.C.109; Odidika v. State (1977) 2 S.C.21 and Njovens v. State (1975) 5 S.C.17. 80 (1968) NMLR 86. UNIVERSITY OF IBADAN LIBRARY Criminal Armoury whereabouts renders the Alibi unrebutted and it may vitiate the proof beyond reasonable doubt against the accused raising the A libi- Okosi v. The State81 But the position w ill be different if the prosecution has more convincing or stronger evidence as to the guilt o f the accused person. A lthough the p roof o f the guilt o f the accused is on the prosecution and so too the investigation o f the defence o f A libi, the onus lies on the accused to discharge the evidential burden that he w as in fact not at the scene o f the crime at the time the offence was committed and that he was somewhere else. It should be noted that where an accused person raises a defence that his A lib i was not investigated, he can still be convicted as charged if there is stronger and credible evidence before the Court which falsifies his A libi.82 In the case o f Suberu Bello and ors v. Commissioner of Police,83 the Court held that it is obvious from the reasons given by the trial M agistrate in his ru ling for discharging the three accused persons that the trial Magistrate in fact discharged the three accused person’s before hearing their defence o f Alibi. I know o f no rule o f law that where an accused person makes a statem ent to the police that he was not present at a particular tim e where he was alleged to have com m itted an 81 (1989) 1 NWLR(ptlOO) 642. 82 Okosun v. A.G. Bendel State (1985) 3NWLR (ptl2) 283. 88 (1959) W.N.L.R. p.124._______________________________________________ UNIVERSITY OF IBADAN LIBRARY 6 4 _________ ______________________________ Criminal Armoury offence and the police makes investigations and are o f the opinion that the statement o f the accused is correct, the Court would discharge the accused w ithout hearing the defence o f Alibi. I say this because irrespective o f w hat investigations the police m ight m ake touching the whereabouts o f the accused, the evidence m ust be proved in Court and witnesses called to support that defence exam ined and cross-exam ined. It m ay well happen that proper handling o f the witnesses under cross- examination will break down the defence o f Alibi. UNIVERSITY OF IBADAN LIBRARY Criminal Armoury 6 5 Defence o f Insanity Insanity connotes any m ental disorder severe enough that it prevents a person from having legal capacity and excuses the person from having criminal or civil responsibility.84 Insanity is a legal term not a m edical standard. Lawyer calls a severe mental disorder an insanity while people in medical profession refers to it as mental disorder, mental illness or o f psychosis or neurosis. However, insanity is not m erely a departure from the norm al but is a fairly advanced degree o f disorder o f the mind. W hat the law decides is which persons who are medically insane are legally irresponsible — Lasisi Saliu v. The State85 The defence o f insanity is governed by Section 27 and 28 o f the Criminal Code which provides; Section 27: Every person is presum ed to be o f sound m ind, and to have been o f sound m ind at any tim e which comes in question until the contrary is proved. Section 28: A person is not criminally responsible for an act or om ission i f at the time o f doing the act or m aking the om ission, he is in such a state o f m ental disease or natural m ental infirm ity as to deprive him o f capacity to understand what he is doing, or o f capacity to know that he ought not to do the act or m ake the omission. 84 (Black’s Law Dictionary, Eight Edition at pg 810). 85 (1984) 10S.C.111 @116. UNIVERSITY OF IBADAN LIBRARY 6 6 Criminal Armoury A person whose m ind, at the time o f his doing or omitting to do an act, is affected by delusions on some specific m atter or matters, but who is not otherwise entitled to the benefits o f the foregoing provisions o f this section, is criminally responsible for the act or omission to the same extent as if the real state o f things had been such as he was induced by the delusion to believe to exist. Meanwhile, the rule as to insanity as a defence to criminal responsibility at common law was stated in the M’N aughten’s case86 and can be summarized as follows: (a) Every m an is to be presum ed to be sane, and to p o sse ss a su ff ic ien t d egree o f re a so n to be responsib le for his crime, until the contrary be proved. (b) To establish a defence on the ground o f insanity, it must be clearly proved that, at the time o f committing the act, the accused was labouring under such a defect o f reason, from decease o f the mind, as not to know the nature and quality o f act he was doing, or if he did know it, that he did not know he was doing what was wrong. 86 (1843) 4St.Tr(N.5.) 847 UNIVERSITY OF IBADAN LIBRARY _ Criminal Armoury (c) I f a person com m its an offence under insane delusion, and is not in other respect insane, he must be considered in the same situation as to responsibility as if the facts w ith respects to which the delusion exist were real. In order to establish insanity and to overcom e the presum ption that every m an is sane and accountable for his actions, the defence must prove first, that the prisoner accused was, at the relevant time, suffering either from m ental diseases or natural infirm ity and secondly that the m ental disease or from natural infirm ity was such that, at the relevant time, the prisoner or accused was as a result deprived o f capacity — (a) to understand what he was doing; or (b) to control his actions; (c) to know that he ought not to do the act or make the omission87 “N atural m ental infirm ity” means a defect in m ental power neither produced by his own default nor the result o f disease o f the m ind.88 It is analogous to m ental defectiveness. Under the Penal Code, Section 51 provides; “N othing is an offence which is done by a person w ho at the tim e o f doing it, by reason o f unsoundness o f m ind, is incapable o f knowing the nature o f the act or that he is doing what is either wrong or contrary to law”. 87 R v. Thamu (1953) 14WACA 372 88 R v. Tabigen (1960) 5 F.S.C.8, R v. Omoni (1949) 12WACA 511. UNIVERSITY OF IBADAN LIBRARY ______ _________________________________ Criminal Armoury It could be inferred convincingly that the w ordings o f both the Criminal Code and the Penal Code that although there is sim ilarity in w hat both provide for, at the same tim e the provisions in the Criminal Code are much stronger. In my view, the provisions o f the Penal Code are simple and easy to understand compare with the provisions o f the Criminal Code. T ill now, there has been a long line o f authorities on what constitute insanity and how the defence can be put forward by an accused person. It must be stated however that in proving his (the accused person) insane condition the accused person is not under an obligation to establish his case beyond reasonable doubt - Dagayya v. State89 All he has to do is to bring forward enough evidence on the balance o f probability in support o f the defence — R v. N asam u90 It is pertinent to state that it is not only the accused that can raise issue o f insanity, both the Court and the prosecution can also raise it .91 It all depends on the facts o f each case. For example, the appearance and conduct in Court m ay justify this action. It is settled law that w hether the accused was sane or not in the legal sense at the tim e he com m itted the offence for which he is charged is a question o f facts to be decided by the trial Judge as the case m ay be - O rok v. The State.92 89 (2005) 1NCC 532. 90 (1940) 6 WACA 71. 91 Section 223 and 234 of the Criminal Procedure Act 92 (1989) 1 CLRNp.163 @ 172;SaHuv. State(1984) 10S .C .lll @126. UNIVERSITY OF IBADAN LIBRARY Criminal Armoury The obligation is placed on the Court by Section 223(1) o f the Crim inal Procedure A ct to inquire into the fitness o f an accused person to stand trial. There m ust be sufficient reason or evidence for the trial Judge or Magistrate to suspect that the iccused is o f unsound mind and incapable o f making his defence — Eledan v. The State93 T he Suprem e Court held in R v. O bodo94 as follows: that it is settled law that whether the accused person was sane or insane in the legal sense at the tim e w hen the act was committed is a question o f fact to be determ ined by the Court — Rex v. Wangara95 and not by a medical man however eminent — R v. Riveth96 and is dependent upon the precious and contemporaneous act of the party97 H owever, the burden o f p roo f on an accused person who put forward the defence o f insanity is discharged on the balance o f probability.98 In addition, by virtue o f Section 140(2) o f the Evidence Act, the burden o f p roof placed on an accused person is deemed to be discharged if the Court is satisfied by evidence given by the prosecution, w hether in cross-exam ination or otherwise, that such circumstances in fact existed. 93 (1972) 8-9S.C. 223 54 (1959) 4 F.S.C.l. 95 10 WACA 236; Waltor v. R (1978) 66Cr. App. R.25 96 34 Cr. App. R. 87 97 Rex v. Ashigufuwo 12 WACA 389. 3 R v. Nasarnu 6 WACA 74; R v. Ashigifuwo 12 WACA 389; Echem v. R. 14 WACA 158; and Okunnu v. State (1977) 3 S.C. 151. UNIVERSITY OF IBADAN LIBRARY Criminal Armoury Absence o f m otive is not itse lf sufficient ground from which to infer insan ity but m ay be relevant w here there is independent evidence o f insanity." It means that where there is evidence o f insanity, the absence o f motive m ay be relevant to prove insan ity 9100 It should be noted sim ultaneously that evidence o f insanity o f ancestors or blood relations is admissible to prove insanity, although medical evidence is not essential101 or despite the testim ony o f a m edical expert, it is the judge’s responsibility to determ ine whether accused was insane or not at the tim e o f the offence102 Also, evidence that an accused belongs to a class o f persons who are impulsive and dangerous when annoyed is not sufficient to support a finding that he is o f unsound m ind and consequently in-capable o f m aking his defence103 99 R v. Biu (1964) N.N.L.R. 45 100 R v. Inyang (1946) 12 WACA 5. 101 R v. Inyang (Supra). 102 Attorney - General Western Nigeria v. Upetire (1964) N.M.L.R. 25. 103 Zaria Native Authority v. Bakori (1964) N.N.L.R.25. UNIVERSITY OF IBADAN LIBRARY Criminal Armoury Defence o f ̂ Accident This literarily means an unintended and unforeseen injurious occurrence that is, something that does not occur in the usual course o f events or that could not be reasonably anticipated. It equally means an unforeseen and injurious occurrence not attributable to mistake, negligence, neglect, or misconduct. It is similar to an event which takes places without one’s foresight or expectation. In attempting to accommodate the laym an’s understanding o f the term “ accident” Courts have broadly defined the word to mean an occurrence which unforeseen, unexpected, extraordinary either by virtue o f the fact that it occurred at all, or because o f the extent o f the damage. A n accident can be either a sudden happening or a slow ly evo lving process like the perco lation o f harm ful substances through the ground. Q ualification o f a particular accident as an accident seems to depend on two criteria, (1). The degree o f forseability and (2). The state o f the m ind o f the actor in intending or not intending the result.104 There are three categories o f accident which are; (1) Culpable Accident which is an accident due to negligence. A culpable accident, unlike an unavoidable accident, is no defense expect in those few cases in which wrongful intent is the exclusive and necessary basis for liability. 104 John F. Dobbyn, Insurance Law in a Nutshell 128 (3d ed. 1996). UNIVERSITY OF IBADAN LIBRARY __ ______________________________________Criminal Armoury (2) Unavoidable Accident means an accident that cannot be avoided because it is produced by an irresistible physical cause that cannot be prevented by hum an skill or reasonable foresight. Example include accidents resulting from lighting or storms, perils o f the sea, inundations or earthquakes, or sudden illness or death. U navoidable accident has been considered as a m eans o f avoiding both civil and crim inal liability. Unavoidable accident which according to P.H. W infield,105 described not to mean a catastrophe which could not have been avoided by any precaution what-ever, but such as could not have been avoided by a reasonable man at the m om ent at which it occurred, and it is com m on knowledge that z reasonable m an is not credited w ith perfection oi judgment B ut according to Prosser and Keeton on the Law o f Torts at 162106 described an unavoidable accident as an occurrence which was not intended and w hich, under all the circumstances, could not have been foreseen or prevented b} the exercise o f reasonable precautions. T hat is, an accident is considered unavoidable or inevitable at law if it was not proximately caused by the negligence o f any party to the action or to the accident. 105 A Textbook of the Law of Tort at 43 (5'h Edition 1950). 106 (5,h Edition 1984) UNIVERSITY OF IBADAN LIBRARY Criminal Armoury B eside the above expression , Section 24 o f the Crim inal Code and Section 48 o f the Penal Code, Section 24 o f the Crim inal Code provides, “subject to the express provisions o f this code relating to negligent acts and omissions, a person is not crim inally responsible for an act or om ission which occurs independently o f the exercise o f his w ill, or for an events which occurs by accident. Unless the intention to cause a particular result is expressly declared to be an element o f the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial. Unless otherwise expressly declared, the motive by which a person is induced to do or om it to do an act, or form an intention, is immaterial as far as regards criminal responsibility” . Section 48 o f the Penal Code provides that “N othing is an offence which is done by accident or m isfortune and w ithout any crim inal intention or knowledge in the course o f doing a lawful act in a lawful manner by lawful means and with proper care and caution”. In the opinion o f the author o f Stephen’s D igest o f the Crim inal Law “an effect is said to be accidental when the act by which it is caused is not done w ith the intention o f causing it and w hen its occurrence as a consequence o f such act is not so probable that a person o f ordinary prudence ought, UNIVERSITY OF IBADAN LIBRARY Criminal Armoury under the circumstances in which it is done to take reasonable precaution against it.107 In other words in law, for an event to qualify as an accident, such event m ust be the result o f an unw illed act, an event which occurs w ithout the fault o f the person alleged to have caused it or an event totally unexpected in the ordinary cause o f events Adelum ola v. The State108 for example, where a person discharges a fire arm unintentionally and without attendant crim inal m alice or negligence, he w ill be exem pted from crim inal responsib ility both for the firing and for its consequences.109 It is now settled, that an accused person cannot take refuge on a defense o f accident for a deliberate act even i f he did not intend the eventual result.110 the test o f the plea or defense o f accident, is always that if the act even though unlawful, is not such that would, from the view o f a reasonable man cause death or grievous bodily harm though death resulted therefore, the person charged, can only at m ost be convicted o f m anslaughter111 107 (Warner v. Metropolitan Police Commissioner (1969) 2A.C. 256’ (1968) 2A11E.R. 356; 52Cr. App. R. 373, H.L. 108 (1988) (NWLR (Pt 73) 683 at 692 109 Iromantuv. State (1964) ALL NLR. 311. 110 Oghor v. the state (1990) 3NWLR (pt 139) a) 502.C.A. 1,1 Thomas v. The State (1994) 4 SCN.J (pt 1) 102 @ 109; (1994) 4NWLR (pt 337) 129. UNIVERSITY OF IBADAN LIBRARY Criminal Armoury Per Wall JSC in the case o f T hom as V. the sta te112 aeld that “it needs be stressed, that the act lead ing to the accident, m ust be a lawful act done in a lawful manner. Thus, for an event to qualify as accident under section 24 o f the Crim inal C o d e ......... it must be a surprise to the ordinary man o f prudence, that is, a surprise to all sober and reasonable people. The test is always objective”113 It m ust always be borne in m ind, that section 24 o f the Crim inal Code does not deal with an “act” but an “event” and the event within the meaning o f this Section, is what apparently follows from an act.114 In the case o f C.O.P. v. O robor115 the Court held that “a Court can not ordinarily infer negligence or dangerous driving from the mere fact that an accident happened as there is no rule that if an accident occurs and death results therefrom, the driver is guilty o f m anslaughter unless the prosecution is able to explain the accidents wherefrom the guilt o f the accused vould be shown to the satisfaction o f the Court. Consequently, the onus is on the prosecution to show that the accidents from which death resulted was due to the negligence o f the accused116 112 (Supra) 113 Adelumola v. The State (1988) INWLR (pt 73) 683 @ 692 - 693 ; (1988) 38 SCNJ 68; Aliu Bello &13 ors v. A.G. of Oyo-State (1986) 5NWLR (Pt) pg 82. 114 Audu Umaru v. The state (1990) 3NWLR (pt 138) 363 @870 C.A; Daniels v. The State (1991) 8NWLR (pt212) 715 C.A; Chukwu v. The State (1992) INWLR (pt217) 255; (1992) 1SCNJ57 113 (1989) 1CLRN (p.219); 116 R. v. Tatimu 20 N.L.R. 60 @61 UNIVERSITY OF IBADAN LIBRARY ________________________________________ Criminal Armoury Inevitable accident could equally be relied upon as the meaning was given earlier. This was relied upon in the case o f C. & C. C onstruction Co. and anr v. O khai117 B ut certain things have to be proved. The Supreme Court in the above case held “ strictly speaking, i f a defendant denies negligence, he m ay give evidence o f inevitable accident although he has not specifically p leaded it. Per D evlin J . in Southport C orporation v. Esso Petroleum Com pany L im ited 118 (1956). The better practice however, is for the defendant who intends to rely on inevitable accident as a defence, to plead such defence specifically and to give all necessary particulars relied on. He should plead that the said accident or m atters c o m p la in e d o f a ro se fro m in e v ita b le a c c id e n t an d notwithstanding the exercise o f all reasonable care and skill by the defendant, he was unable to avoid the same. This is followed by full particu lars o f the facts and m atters relied on as constituting inevitable accident.119 Pleading inevitable accident is one thing but p roof thereof is a different matter. T he onus is on the party who raises that defence to lead evidence to substantiate same”. But, in the case o f accidental discharge which is always relied on by the police anytime a death resulted from their 117 (2003) 16 NSCQR p.328. 118 A.C. 218 at 231. 115 See Bullen and Leak and Jacobs, Precedents of Pleadings 13* Edition pg 1318. UNIVERSITY OF IBADAN LIBRARY Criminal Armoury act(s) or om ission(s). That is why, the Court o f Appeal in the case o f Uzom ba v. The State120 lamented that “it has become common knowledge and in fact a frightened dimension is now being experienced by the N igerian citizenry at the police penchant for shooting at innocent people w ith guns bought with tax payers money. They are meant to protects the citizens but, alas they now use them to terrorize, to m aim and to wantonly kill the people they are meant to protect” . His Lordship of blessed m em ory I.C. Pats-Acholomu JC A (as he then was) held further that “the w orn out hackneyed phrase, “accidental discharge” has becom e so comm on in our criminal jurisprudence that m any a policeman has been acquitted and discharged on the use o f accidental discharge. It would appear that it is only in this country that the citizenry experiences accidental discharge”. N o m atter how our Court(s) frown at the defence o f accident, w ith due respect to them it is still a defence to a suspect or an accused person(s). 120 (2005) INCCp. 406 @410-411. UNIVERSITY OF IBADAN LIBRARY Criminal Armoury Defence o f Automatism Autom atism literarily connotes an action or conduct occurring w ithout will, purpose or reasoned intention, such as sleepwalking. It is equally defined as a behavior carried out in a state o f unconsciousness or m ental dissociation w ithout full awareness. Automatism may be asserted as a defense to negate the requisite mental state o f voluntariness for commission o f a crime. It has been described as the state o f a person who, though capable o f action, is not conscious o f his or her action(s). The question is, how far is automatism a defense? It has been described as involuntary action perform ed in a state o f unconsciousness not am ounting to insanity. Theoretically, the defense is that no act in the legal sense took place at all the plea is that there was no volition or psychic awareness.121 The defense o f automatism has its root in Section 24 o f the Criminal Code which provides that; “subject to the express provisions o f this code relating to negligent acts or om ission, which occurs independently o f the exercise o f his w ill, or for an event which occurs by accident. Unless the intention to cause a particular result is expressly declared to be an elem ent o f an offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or om ission is immaterial. Unless otherwise expressly declared, the motive by 121 Black’s Law Dictionary: Deluxe Eighth Edition: By Bryan A. Garner Editor in Chief. UNIVERSITY OF IBADAN LIBRARY Criminal Armoury which a person is induced to do or om it to do an act, or to form an intention, is im m aterial as far as regards crim inal responsibility”. According to M r Honourable Justice Akinola Aguda in his book titled “The Crim inal Law and Procedure o f the Southern States o f N igeria” opined that .. the effect o f this section is that it is no defence to a charge o f stealing a lo af o f bread that a man was destitute and had no other way o f feeding his fam ily nor can m urder be justified by a desire to save the person murdered from suffering. Equally, a lawful act does not become criminal merely because it is done with a view to injuring some other person. For an exemption to the rule that motive is immaterial”. There is a countable num ber o f N igerian authority on this concept o f automatism. So, where an accused person relies on autom atism as a defence a proper foundation by w ay o f medical or scientific evidence must be laid in order to displace the presumption o f mental capacity. W here the accused person fell asleep while driving and struck and kill someone standing next to a stationary lorry, he has no defence under Section 24 o f the Crim inal Code as he must have realized that he was fatigued and about to fall asleep, having been driving continuously for certain numbers o f hours. One such lapse, however, does not constitute that degree o f recklessness and utter disregard for the safety o f others as would am ount to m anslaughter.122 122 R v. Anthony Elomba (1/95 c/62- 18./3/63-Ibadan). UNIVERSITY OF IBADAN LIBRARY 8 0 Criminal Armoury Also, in d ie case o f R.V. H arm er123 where while driving the accused person was involved in a collision which resulted in the death o f a passenger. He was indicted on three counts with m anslaughter, negligent and dangerous driving. The collision, occurred because the accused person suffered a sudden attack o f epilepsy and lost control o f his car. Held not guilty because his action at the time o f the collision was purely automatism 123 (Lagos LA/31 c/64-3rd February, 1964) UNIVERSITY OF IBADAN LIBRARY ________________________________________ Criminal Armoury Defence o f Innocence Innocence connotes gu iltlessness, b lam elessness, irreproachability, unimpeachability, clean hands, inculpability or absence o f guilt from a particular offence. There are two categories o f innocence namely: 1) . Actual innocence which means the absence o f facts that are prerequisites for the sentence given to an accused. 2). Legal innocence which connotes the absence o f one or more procedure or legal basis to support the sentence given to the accused. Naturally, the position o f our law in consonance w ith Section 36 (5) o f the 1999 constitution is that “every person who is charge w ith a criminal offence shall be presum ed to be innocent until he is proved guilt. Provided that nothing in this section shall invalidate any law imposes upon any such person the burden o f proving particular facts” . T he rationale for this provision is that it is better for one hundred accused persons to go free, than for one innocent person to be punished for an offence he did not com m it or had no hand in its committal. The beauty o f our Nigeria criminal justice system is the presumption o f the innocence o f a person charged with a criminal offence unless proved guilty by credible evidence which must be proved beyond reasonable doubt. And similarly, where a primafacie case is made out against an accused UNIVERSITY OF IBADAN LIBRARY 8 2 ' _________________________________________ Criminal Armoury person by the prosecution the law provides that he be given every chance to defend the charge made out against him. These include the right to recall and cross-examine any prosecution witness(es) that testified in the case against him , the right to testify and tender any exhibits or docum ents he considers necessary in his defence and the right to call any defence witnesses. See sections 161, 162 and 163 o f the Crim inal Procedure Codg applicable. Since an accused person has a fundam ental right o f presum ption o f innocence under the constitution the burden is on the prosecution to prove the guilt o f an accused beyond reasonable doubt and any slightest doubt raised by the accused in his favour, which w ill then lead to the accused person’s discharge and acquittal.124 It should be noted that an accused person is not under an obligation to prove his innocence but the prosecution is under an obligation to prove its gu ilt.125 The due observance o f the strict rules o f crim inal procedure is the only safeguard against wrongful conviction. Liberty or any other rights o f the subject cannot be toiled with, those rights are invaluable. Consequently, the Courts must be on their guard to ensure that no departure that w ill deprive a man o f his life, liberty or any other right(S) is allowed. It is not 124 Stephen v. State (1986) 5NWLR (pt 46) page. 978; Alonge v. I.S.P. (1959) SCNLR 516; Okagbue v. C.O.P. (1965) NMLR 232, Obue V. State (1976) 2.S.C. 141; Aigbapion v. State (2000) 7NWLR (pt 666) Pg 686. 125 The State v. Raufu Nosiru (1975) 5.UIL.R.(pt 111) p.356. UNIVERSITY OF IBADAN LIBRARY Criminal Armoury a favour done by the Court, it is the requirem ent o f the constitution that the innocence o f the accused be presum ed until he is proved gu ilty126 Part o f the right o f innocence the suspect has is the right to remain silent throughout the trial, leaving the burden o f p roof o f his guilt beyond reasonable doubt, to the prosecution .127 The suspect/ accused m ay not utter a word. He is not bound to say anything. It is his constitutional right to remain silent, tire duty is on the prosecution to prove the charge against him128 afterward, an accused person, is not a compellable witness.129 H ow ever, i f an accused p erson asserts th a t the prosecution has failed to prove his guilt beyond reasonable doubt before conviction, it is now setded that it is so and it is the duty o f the Court to uphold the right o f innocence o f the suspect or the accused person after exam ining the assertion against the whole background o f the case and in particular against the evidence leading to the guilt o f the accused.130 More importantly, where an accused person opts not to testify and rests his case on that o f the prosecution, and the prosecution, has, by credible evidence o f its witness or witness, or proved its case, beyond reasonable doubt, then, he (the accused) cannot turn round, to complain that the Court did not consider his defence o f innocence — Adekunle v. S tate131. 126 Per Olatawura J.S.C in Kada v. State (1991) 8NWI.R (pt 181 )p.621 631. 127 Utteh & ors v. The State (1992) 3 NW1.R (pt 138) 301. 128 Uche Williams V. the State (1992) 10SCNJ 74@ 80. 129 Singh V. The State (1988), NSCC 852; (1988) 5.S.C.N.J.58. 13(1 Otaki v. The State (1986) AIT NLR (pt371) @ 378; Edet Offiong Ekpc v. The state (1994) 12SCNJ 131 @ 1325. 131 UNIVERSITY OF IBADAN LIBRARY Criminal Armoury There is no doubt that it is an established principle o f criminal law that, an honest and reasonable belief in the existence o f circumstances which if true, would make the act for which the accused is charged an innocent act, has always been held to be a good defence. This is because o f the state o f his or her m ind at the time o f the com m ission or om ission o f the act which m ust not only be honest but m ust also be reasonable in the circumstances.132 In a case concerning a charge o f dem anding m oney with intent to steal where the defence o f innocent possession is made, evidence o f sim ilar facts in a previous offence are admissible in rebuttal o f that defence.133 It should be noted after all, that a person who pleads guilty to an offence cannot still be presumed to be innocent o f com m itting that offence. The presum ption o f innocence is gone and the C ourt should convict him accordingly. It is submitted that the provision of the second arm o f Section 187 (2) o f the Crim inal Procedure Code which states that “ such exam ination shall i f possible be taking in the presence o f the accused if not so taken the record thereof shall be read over to the accused before the trial” be expunged and the practice be abrogated in the Southern States. It is an unnecessary English Com m on Law tradition which is not consistent with Section 36(5) o f the 1999 Constitution. 132 R v. Tolson (1889)23 QBD 168 @ 181; State v. Olatunji (2005) INCC p. 478. 133 Popoola v. Commissioner of Police (1959) WR.N.L.R, P .ll UNIVERSITY OF IBADAN LIBRARY Criminal Armoury Defence o f Intoxication Intoxication literarily connotes a d im inished ability to act with full mental and physical capabilities because o f alcohol or drug consum ption; drunkenness. There are categories o f intoxication which are; 1) Voluntary intoxication which means a w illing ingestion o f alcohol or drugs to the point o f im pairm ent done w ith the knowledge that one’s physical and mental capabilities would be impaired. Voluntary intoxication is not a defence to a general intent crim e, but m ay be adm itted to refute the existence o f a particular state o f m ind for a specific intent- crime. This is also called or termed culpable intoxication or self-induced intoxication. 2) Involuntary intoxication. It means the ingestion o f alcohol or drugs against one’s will or w ithout one’s knowledge. Involuntary intoxication is an affirm ative defence to a crim inal or negligence charge/ inform ation against an accused person. 3) P ath o lo g ica l in tox ication : it m eans an extrem ely exaggerated response to an intoxicant. This may be treated as involuntary intoxication if it is unforeseeable. 4) Public intoxication: this means the appearance o f a person who is under the influence o f drugs or alcohol in a place open to the general public. In m ost A m erican UNIVERSITY OF IBADAN LIBRARY . 86. __________ ____________________________ Criminal Armoury ju r isd ic tio n , p u b lic in to x ica tio n is co n sid ered a misdemeanor, and in some states; alcoholism is a defence if the offender agrees to attend a treatm ent program. The defence o f intoxication is governed by Section 29 o f the Criminal Code and section 44 and 52 o f the Penal Code. Section 29 o f the Crim inal Code provides; 1) Save as provided in this section; intoxication shall not constitute a defence to any criminal charge. 2) Intoxication shall be a defence to any crim inal charge if by reason thereof the person charged at the time o f the act or om ission com plained o f did not know w hat he was doing and- a) the state o f intoxication was caused w ithout his consent by the malicious or negligent act o f another person; or b) the person charged was by reason o f intoxication insane, tem porarily or otherwise, at the tim e o f such act/omission. 3) W here the defence under the preceding subsection is established, then in a case falling under paragraph (a) thereof the accused person shall be discharged, and in a case falling under paragraph (b) section 229 and 230 o f the crim inal procedure Act shall apply. UNIVERSITY OF IBADAN LIBRARY ________________________________________ Criminal A rmoury 4) Intoxication shall be taken into account for the purpose o f determining whether the person charged had formed any intention, specific or otherwise in the absence o f which he would not be guilt o f the offence. 5) For the purposes o f this section “intoxication” shall be deemed to include a state produced by narcotics or drugs. Section 44 o f the Penal Code provides “a person who does an act in a state o f intoxication is presum ed to have the same knowledge as he would have had if he had not been intoxicated” . A nd Section 52 provides that “nothing is an offence which is done by a person who, at the time o f doing it, is by reason o f intoxication caused by something administered to him w ithout his knowledge or against his w ill, incapable o f knowing the nature o f the act, or that he is doing, what is either .vrong or contrary to law”. It should be noted that in N igeria only involuntary intoxication affords a valid ground for com plete exculpation provided that it renders the accused unable to know w hat he was doing or unable to appreciate the w rong-fullness o f his act. T ins is most applicable to section 29 o f the Crim inal Code. It is subm itted that codes134 provisions dealing with mvoluntary intoxication are wanting in two respect Viz; 134 Penal Code and Criminal Codes UNIVERSITY OF IBADAN LIBRARY ________________________________________ Criminal Armoury 1) The Crim inal Code does not recognize intoxication by mistake; and 2) That the provisions o f the Crim inal Code shows clear cut provisions governing intoxication compared with the provisions under the penal code. It is equally noted that intoxication affects intent R v. Chutuwa135 where there was some evidence o f intoxication it was an error for the judge not to consider whether intoxication had negatived any intention to kill, particularly where the circum stances negatived a preconceived intent and a murder conviction w ill be reduced to manslaughter.136 Also, where an act is an offence only if done w ith a particular intent, intoxication w ill be a defence if it is shown that by reason o f his intoxication the accused person was incapable o f form ing any specific intention. Such evidence should be taken into consideration with the other facts proved in order to determine whether or not the drunken man had the particular intention. Evidence falling short o f a proved incapacity to form the intent necessary to constitute the crime does not rebut the p resum ption that a m an in tends the natu ra l consequences o f his acts.137 (1954) 14 WACA 590; R v. Owarey (1939) 5 WACA 66 156 R v. Mensah (1952) 14 WACA 174. 137 R v. Owarey (1939) 5 WACA 66. UNIVERSITY OF IBADAN LIBRARY ________________________________________ Criminal Armoury Intoxication is not a good defence under Criminal Code, section 29 unless by reason, thereof, the person charged did not know such act was w rong or did not know w hat he was doing and the person charged was by reason o f intoxication insane, temporarily or otherwise at the tim e.138 138 R v. Owarey (Supra) UNIVERSITY OF IBADAN LIBRARY 9 0 ________________________________________ Criminal Armoury Defence o f Delusion D elusion literarily means false belief or im pression. It equally m ean a false opinion or belief especially one that m ay be a symptom o f madness. The defence o f delusion is governed by Section 28 o f the Criminal Code which provides: “A person is not crim inally responsible for an act or omission if at the time o f doing the act or making the omission he is in such a state o f m ental disease or naturally m ental infirm ity as to deprive him o f capacity to control his actions, or o f capacity to know that he ought not to do the act or make the omission. A person w hose m ind, at the tim e o f his doing or omitting to do an act, is affected by delusions on some specific m atter or m atters, but who is not otherwise entided to the benefit o f the foregoing provisions o f this section is criminally responsible for the act or omission to the same extent as if the real state o f things had been such as he was induced by the delusions to believe to exist” . The applicable provision is the second paragraph o f this section and the rule laid down is similar to the rules laid down in M’N aughten’s case (Supra). For delusion to be a defence, it m ust affect the knowledge o f the claim er o f it .139 139 R. V. Thamu (1953) 14 WACA 372. UNIVERSITY OF IBADAN LIBRARY ________________________________________ Criminal Armoury The West African Court o f A ppeal held in the case o f R v. O m o n i140 that even though the defendant was at the time o f the act affected by a delusion on a specific matter; he is not entided to the benefits o f the defence o f insan ity where he fails to prove the following: (1) that he was at the relevant time suffering either from m ental disease or from natural infirm ity, the later m eaning a defect in m ental power neither produced by his own default nor the result o f disease o f the m ind; and (2) that the m ental disease or the natural mental infirmity deprived him o f capacity; a) to understand what he was doing; or b) to control his actions; or c) to know that he ought not to do the act or m ake the omission. It shou ld be noted how ever, th a t w h ile in san ity encompasses delusion, delusion does not encompass insanity. Where a defence o f insanity exists, a defence o f delusion cannot arise for consideration. It is subsumed. A ccording to Section 28 o f the Crim inal Code, defence o f delusion arises only where a defence o f insan ity is not available to the accused. There is no doubt that the basic cause o f insan ity and delusion is a disease o f the m ind and hence, the two defences have been properly treated and dealt w ith in the same action. But the degree o f illness o f the m ind in insanity is definitely more 140 (1949) 12WACA 511 UNIVERSITY OF IBADAN LIBRARY 92 Criminal Armoury severe than the degree o f illness in delusion. The loss o f capacity in insanity need not attend the state o f delusion.141 The Court held in the case o f Iwuanyanwu v. The State142 that, assum ing that what the defendant believed as a result o f his delusion was the real state o f things, the second paragraph o f Section 28 o f the Criminal Code did not exonerate him , for the whole purpose o f his m urderous attack was to prevent his own death in the future by Juju, and he was not acting in self defence at the m om ent that he killed. 141 Yusuf v. State (1988) 4 NWLR (pt 86) p. 100 @ 112. 142 (1964) 1 ALLNLRp. 413. UNIVERSITY OF IBADAN LIBRARY ________________________________________ Criminal Armoury Defence o f Non’Est Factum The doctrine o f non est fa ctu m is a latin word which connotes “it is not his deed”. It is always a denial o f the execution o f an instrum ent (document) sued on. There are three types o f doctrine o f non est fa ctu m vi^j 1) G eneral non est factum which m eans a broad, non­ specific denial that an instrum ent was executed or executed properly. 2) Special non est factum is a pleading that specifies the grounds on which an instrum ent’s execution is invalid or non binding —Also termed particular non est factum. 3) Verified non est factum is a sworn denial that puts the validity o f the instrum ent as well as the signature in question. This has been a prom inent defence in contractual transaction in many legal proceedings. This defence can be made use in both civil and Criminal actions/matters in any law Court or Tribunal. It is an age-long comm on law doctrine which is applicable in Nigeria. Though there is no specific provision o f the Crim inal Code or Penal Code that establish it but this reason cannot stop its application in any legal proceedings because our judicial systems machinery particularly the superior Court o f records in Nigerian has taken judicial notice o f it. UNIVERSITY OF IBADAN LIBRARY Criminal Armoury This doctrine is always used against the execution o f a document(s) or party who seeks to tender or use it against another party in a legal proceedings be it civil or in crim inal proceedings. Therefore, once the execution or non-execution o f a document forms the bedrock o f any proceedings be it civil or criminal, the truth o f the fact that it is not the defendant or the accused deed can be raised . T he C ourt in the case o f N wangbom u v. State143 held that a plea o f non estfa ctum in relation to a confessional statem ent is a m atter o f fact to be determ ined by the judge at the conclusion o f the trial. Be it noted that it is trite that when a docum ent is sought to be tendered and is objected to by the Counsel, w hat counsel objection does at that stage is no more than a subm ission on the admissibility o f the statement. Thus, as the issue o f non est factum is a m atter o f fact, the challenge o f such a statem ent is more properly done when the accused or any other witness o f his im pugns the statem ent as not being that o f the accused from the witness box. .. .Therefore, that as counsel is not com petent to give evidence from the bar and the challenge o f a confessional statem ent on grounds o f non est fa ctu m is a m atter o f fact, the 143 (1994) 2 NWLR (pt 327) p. 380 at 399 - 400 UNIVERSITY OF IBADAN LIBRARY Criminal Armoury challenge is appropriately made when the accused as w itness denies the m aking o f such a statement. M oreso , it is notew orthy to stress that the term s “retraction” and “resile from” have been used interchangeably in most decisions with the plea o f non estfactum. This is misleading since a statem ent m ust first be shown to have been made before it can be said to have been retracted by its m aker for, where the very making o f the statement is in issue, the retraction cannot arise at that stage. It is in this w ise that I agree that where an accused person sets up a defence o f non estf a ctu m in 'relation to a confessional statement w hat he has done is not a retraction but a denial o f the m aking o f the statem ent.144 It should be noted that the plea o f non estf a ctu m could not be available to a person whose m istake is really one as to the legal effect o f a document, whether that was his own mistake or his advisers.145 These are the conditions to be fulfilled before the defence o f non estfa ctum could be relied upon be it in civil or criminal case(s). viz; 144 Aiguobarueghian v. State (2004) 17 NSCQR (pg 442 @ 470. 145 Ajaka Omonode v. Chief M. C. O. Ibru & 14 ors (1976) 6 U.I.L.R (pt 1) p.94. UNIVERSITY OF IBADAN LIBRARY ________________________________________ Criminal Armoury Defence o f Mistake o f Facts M istake its e lf m eans an erro r, a m isco n cep tio n ; m isunderstanding; an erroneous belief but m istake o f fact is a m isconception o f som ething that actually exist. A m istake o f fact equally means a m istake about a fact that is m aterial to an offence or transaction. It is a material to an offence or transaction. It is a defence asserting that an accused/a suspect acted from an innocent misunderstanding o f fact rather than from a criminal purpose. M istake o f fact is governed by Section 25 o f the Crim inal Code and Section 45 o f the Penal Code. Section 25 o f the Crim inal Code providesja person who does or omits to do an act under an honest and reasonable, but m istaken, be lief in the existence o f any state o f things is not criminally responsible for the act or omission to any greater extent than if the real state o f things had been such as he believed to exist. The operation o f this rule m ay be excluded by the express or im plied provisions o f the law relating to the subject” . From the provision above, the following must be satisfied before a man can be free from punishment: a) the act m ust be honest and reasonable b) the act must also be mistaken c) there must be honest and reasonable but m istaken belief. UNIVERSITY OF IBADAN LIBRARY Criminal Armoury Section 45 o f the Penal Code provides that “nothing is an offence which is done by any person who is justified by law, or who by reason o f a mistaken o f fact and not by reason o f a mistake o f law, in good faith believes him self to be justified by law in doing it.” It is the law that a belief in witchcraft even though honest and reasonable (judged by the general beliefs o f the ordinary m em bers o f the community) cannot excuse a crime. In the case o f M oham m edu Gadam v. R ,4f’ the accused wife had a m iscarriage and was m ortally ill. This, the accused bonafide attributed to her, having been witched by two women. He went and struck one o f the women on the head with a bone-handled in the belief, which he bonafide held that striking the wom an would destroy the spell. She died o f the blows. In the West A frican Court o f Appeal, Foster-Sutton P. said “I have no doubt that a belief in witchcraft, such as the accused obviously has, is shared by the ordinary m em bers o f the community. It would, however, in my opinion be a dangerous precedent to recognize that because a superstition which m ay lead to such a terrible result as disclosed by the facts in this case, is generally prevalent am ong a community, it is therefore reasonable. The Court m ust, I think, regard the holding o f such beliefs as unreasonable.. .”4 6147 146 (1954) 14WACA442 147 Maawole Konkomba v. R (1952) 14 WACA 236; Arum v. The State (1980) 1 NCR 84 and 89; R. v. Udo Eka Ebong (1947) 12 WACA 139. UNIVERSITY OF IBADAN LIBRARY ________________________________________ Criminal Armoury It is essential to note that a belief held in reckless disregard o f assurances which a man ought in the circumstances to be able to rely on is not an honest and reasonable belief.148 148 Akinsulire Basoyin v. Attorney General, Western Nigeria (1966) N.M.L.R. 287. UNIVERSITY OF IBADAN LIBRARY ----- . • Criminal Armoury Defence o f Immaturity This connotes a state or condition o f being under legal ige. That is the categories o f such personalities/children protected by law to be im m ature are not capable o f doing wrong/crim e — doli incapax. As said above, there are categories o f people under the law who had been presumed not to have what it takes to commit a crime. To certain extent such presumption is either rebuttable or irrebuttable. Therefore, a presumption is said to be rebuttable if an inference can be drawn from certain facts that establish a p r im a fa d e case, w hich m ay be overcom e by the introduction o f contrary evidence149 A nd a presum ption is said to be irrebuttable w hen such presumption cannot be overcom e by my additional evidence or argument — Black Law Dictionary supra). Such irrebutable evidence is also called absolute presumption, mandatory presumption or presumption juris et de jure. H owever, the defence o f im m aturity is governed by Section 39 o f the Crim inal Code and Section 50 o f the Penal Code. Section 30 o f the Crim inal Code provides that “a oerson under the age o f seven years is not criminally responsible for any act or om ission. A person under the age o f twelve /ears is not criminally responsible for an act or omission, unless 1J,) Black’s Law Dictionary Deluxe Eight}' Edition by Bryan A. Garner, Editor in Chief. UNIVERSITY OF IBADAN LIBRARY 100 Criminal Armoury it is proved that at the time o f doing the act or m aking the omission he had capacity to know that he ought not to do the act or m ake the om ission. A male person under the age o f twelve years is presum ed to be incapable o f having carnal knowledge. In the same vein , Section 50 o f the Penal Code provides that “no act is an offence which is done — a) by a child under seven years o f age; or b) by a child above seven years o f age but under twelve years o f age who has not attained sufficient maturity of understanding to judge the nature and consequence of such act” In assessing the two provisions, one would undoubtedly arrive at a conclusion that the two provisions are similar except the provision o f the Crim inal Code which laid em phasis on “incapable o f having carnal knowledge” which by and large, the Penal Code is silent about. It is crystal clear from the two provisions o f the law that a person under the age o f seven years cannot be crim inally responsible for commission o f any crime. And this makes this presumption irrebuttable one. But person after the age o f seven years to twelve years are presumed also not to be criminally responsible but this can be repudiated by adducing evidence to the contrary. The presumption here is called rebuttable presumption. UNIVERSITY OF IBADAN LIBRARY ________________________________________ Criminal Armoury A part from the above provisions o f the law, there are provisions o f other laws also which protect the interest o f a child. Such laws are Section 368 and 209 o f the Crim inal P roced ure A ct, C rim inal P rocedure C ode, and the Children and Young Persons Act. Therefore, the onus o f p roof that a person under the age o f 12 years had the capacity to know that he ought not to do the act or m ake the om ission rests on the person alleging it.150 It should be noted appropriately that the material time/ date for the purpose o f determ ining the age is between the birth date o f the person in question and the date on which the offence was committed. The rationale for this defence is to allow mental incapacity in young persons while committing offence(s) since these people can easily be lured into the act(s) by elderly person(s) for their own selfish ends. 150 The State v. Nwabueze (1980) 1 NCR 41; B. v. R. (1955) 44 Cr. App. R. 1. UNIVERSITY OF IBADAN LIBRARY ________________________________________ Criminal Armoury Immunity Section 308 o f the 1999 Constitution and other statutes shield some categories o f people from liability, essentially most o f those people are public officers. So where the public officer or authority sought to be sued has immunity from liability under law, then legal action will not succeed against them within that stipulated period. As a general rule, those who have immunity from liability include: a) The President, Vice-President, Governors and Deputy- G overnors U nder the Constitution, precisely, Section 308 o f the 1999 Constitution, the above m entioned people have im m unity in their personal capacity from liability in respect o f suits brought against them in their personal capacity during their term o f office.151 See Olabisi Onabanjo V. Concord Press o f Nig. L td .5 152 b) fudges: Under the principle o f Judicial immunity, judges are not liable for acts done in their judicial capacity.153 c) Public bodies: Statutory authority may be granted by a statute which may exclude a public body or agency from liability or lim it the liability o f the public body.154 151 20 NLR 62. 152 (1981) 2NCLR 399 HC, Keyamo V. LSHA (2000) 12 NWLR (pt 680) pg 196 C. A. Tinubu V. IMB Securities Pic. (2001) 16NWLR (pt 740) pg 670 SC. Abacha V. Fawehinmi (2000) 6NWLR (pt 600) p. 228 SC, Fawehinmi V. I. G. P. (2002) 7NWLR (pt767)p. 606 SC. 153 (1951)21 NLR 19, Egbe V. Adefarasin(1985) lNW LR(pt3)549 SC. Minister V. Lamb (1882 - 83) 11QBD 588, Okeke V. Baba (2000) 3NWLR (pt650) p. 644. 154 See Allen V. Gulf Oil Co. Ltd. (1981) 1ALLER 353. UNIVERSITY OF IBADAN LIBRARY Criminal Armoury d) Diplomats: Under the principle o f Diplomatic immunity, diplomats are immune to legal process and legal liability in their host country.155 Furtherm ore, during the term o f office o f the above mentioned officers, any suit which seek to make them liable in their personal capacity cannot be brought nor continued against them. (i.e. the Court will lack jurisdiction to entertain the same). W here one was pending before they assume office, it has to be adjourned sine die. Alternatively, the parties may settle the matter amicably. However, they are not immune from the following: i) Impeachment proceedings ii) Election petitions and iii) Actions brought against them in their private capacity, concerning their office and functions. Therefore, they can always be sued in their private capacity, usually by suing the A ttorney General. W henever an action is to be brought against the state, the A ttorney General may be sued as representing the state. Sometimes the relevant public officer is sued in the nam e o f their office or sued the Attorney General and the relevant public officer jointly. 155 See Diplomatic Immunities and Privileges Act, Cap. 99 LFN, 1990, Dickinson V. Del Solar (1930) 1KB 376,Noah V. His Excellency, The British High Commissioner to Nigeria (1980) 1 ALL NLR 208. UNIVERSITY OF IBADAN LIBRARY ________________________________________ Criminal Armoury iv) Public officers: Under the Public O fficers Protection A ct and Laws o f the various states, the liab ility o f a public officer, i f any, is lim ited to three m onths and thereafter they are im m uned from liability for all time for any w rong they m ay have com m itted in the course o f their em ploym ent or duty as a public officer or civil servant.156 Also in Tinubu V. I. M. B. Securities Pic157 where the appeal by the 3rd defendant (Governor. Tinubu o f Lagos State) against the ru ling o f the H igh Court came before the Court of Appeal, Lagos Division, learned counsel to the respondent applied to the Court seeking the adjournment o f the appeal sine die until the Appellant, Mr. Bola T inubu vacated office as G overnor o f Lagos State. The A ppellant opposed the application. A fter argum ent o f counsel, the Court o f A ppeal granted the application. A ppellant has brought this appeal against the ru ling o f the Court o f Appeal. The Court, per Karibi-W hyte JSC held that the literal construction o f Section 308(1) (a) is that no actions, civil or crim inal can be brought or continued against any of the persons stated in Section 308(3). Such a person cannot be arrested or im prisoned during tenure either in pursuance o f the process o f any Court or otherwise — Section 308(1) (b). No process o f any Court requiring or com pelling the 156 See EgbeV.Adefarasin (1985) lN W LR(pt3)p. 549 SC. 157 (2001) 8NSCQR pg 1, UNIVERSITY OF IBADAN LIBRARY Criminal Armoury appearance o f a person to w hom the Section applies, shall be applied for or issued.” On when can the G overnor be sued during his tenure. S. M. A. Belgore JSC opined that: “the only perm issible proceedings is when such a p erson holding any o f the aforem entioned offices is su ed in his o fficia l capacity i.e. P resident or Vice-President, o r as G overnor or D eputy G overnor and only when he is a nom inal party. ” Also is Fawehinmi V. I. G. P.158, the appellant filed an originating summons against the respondents/cross appellants on the 7th October, 1999 at the Federal High Court Lagos, where he sought an order o f M andamus against the respondents to investigate criminal allegations which he made against Governor Bola Ahm ed Tinubu o f Lagos State. The trial Court dismissed the summons on 14th Dec., 1999 upon a prelim inary objection based on the ground of immunity enjoyed by the Governor by virtue o f Section 308 o f the 1999 Constitution. The Appellant appealed to the Court o f Appeal, which held that; S ection 308 o f the 1999 C onstitu tion does n o t p r e c lu d e investigation o f p erson holding office under the Section. That in the circumstances o f the case no order o f mandamus would be made compelling the respondents to investigate the allegations against the G overnor o f Vagos S tate and That the appellant had locus standi to institute the action. 158 (2002) 10NSCQR (pt 11) pg 825 UNIVERSITY OF IBADAN LIBRARY 1 0 6 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Criminal Armoury The appellant further appealed to the Suprem e Court, so also the respondents cross appealed. The Suprem e Court per Kalgo JSC at pages 873 — 874 held that it m ust be clearly u n d e rs to o d th a t th e re is a d is tin c t io n h ere b e tw een “proceedings” and “investigation” leading to the proceedings . . . It appears to me clearly therefore that the holders o f the offices m entioned in Section 308(3) o f the 1999 Constitution can be investigated but only to the extent that they should not be questioned, arrested or detained or asked to m ake any statem ent in connection w ith such investigation. I think the m ain purpose o f Section 308 o f the 1999 Constitution is to allow an incum bent President, V ice President, G overnor or Deputy Governor mentioned in that Section a completely free hand and minds, in the perform ance o f his or her duties and responsibilities w hilst in office, so that no encumbrances may be placed in his or her way in execution or performance o f the public duties/responsibilities assigned to the office which he or she holds under the Constitution. But this is not intended to grant him or her, an im m unity forever from full crim inal investigation or any crim inal proceedings in respect o f any offence allegedly com m itted by him or her during the tenure o f office.” Wall JSC concurred in his judicial reasoning when he held “notwithstanding the interpretation o f Section 308 o f the 1999 Constitution, it m ust not be assum ed that a blanket UNIVERSITY OF IBADAN LIBRARY Criminal Armoury authority is g iven to the po lice to question the officers m entioned in Section 308(3) while in office no m atter how strong such evidence might be against him. Such evidence must be kept in the cooler until such tim e an officer vacates the office.” Also, Section 31 o f the Crim inal Code protects the Judicial O fficers and that is why - In the case o f Egbe V. Adefarasin159 in that case, the Supreme Court held: in favour o f the defendant/respondent judge, that at common law, persons exercising judicial functions are immuned from all civil liability w hatsoever for anything done in their judicial capacity. This common law rule has been enacted into statute law, for instance in Section 88(1) o f the High Court Law o f Lagos State Cap. 60, 1994 which provides: “No judge shall be liable for any act done by him or ordered by him to be done in the discharge o f his judicial duty, whether or not within the limits o f his jurisdiction, provided that he at the time, in good faith, believed him self to have jurisdiction to do, or order to be done the act in question. Therefore, the Court w ill lack jurisdiction to entertain any complaints or actions brought against the officers mentioned above pending the time o f sojourn in offices. 159 (1987) 1NWLR (pt 3) pg 549 SC. UNIVERSITY OF IBADAN LIBRARY 1 0 8 Criminal Armoury Defence o f Husband and Wife By and large, it is a rule that neither the husband nor the wife can incur criminal responsibility for doing any act in respect o f each other’s property. Though, this is a general rule, there are exceptions to it which shall be discussed soon. The governing provision o f the law is Section 36 o f the Crim inal Code which provides that “when a husband and wife o f a Christian marriage are living together, neither o f them incurs any criminal responsibilities for doing or omitting to do any act with respect to the property o f the other, except in the case o f an act or omission o f which an intention to injure or defraud some other person is an element, and except in the case o f an act done by either o f them w hen leaving or deserting, or w hen about to leave or desert the other. Subject to the foregoing provisions, a husband and wife are, each o f them criminally responsible for any act done by him or her with respect to the property o f the other, which w ould be an offence if they were not husband and wife. But in the case o f a Christian m arriage neither o f them can institute criminal proceedings against the other while they are liv ing together. In this section the term “property” used w ith respect to a w ife means her separate property.” However, the above provision o f the law lay emphasis on two im portant words which are “Christian M arriage” and “Property”. UNIVERSITY OF IBADAN LIBRARY ________________________________________ Criminal Armoury The husband and wife mentioned in the above Section (supra) relates only to those spouse w ho contracted their marriage under the Marriage Act and Matrimonial Causes Act (i.e. Christian Marriage). And Christian Marriage is defined under the interpretation Section o f the Crim inal Code. Section 1(1) defines Christian M arriage as a m arriage which is recognized by the law o f the place where it is contracted as the voluntary union for life o f one man and one wom an to the exclusion of all others. The word “property” in the same vein is defined under this particular section (1) (1) Crim inal Code which includes everything, animate or inanimate, capable o f being the subject o f ownership. Therefore, it is to be noted that this rule/defence only applies to offence against property. Thus, a husband could not be charged w ith willfully setting fire to his w ife’s house — R. v. C arton160 But a husband can be guilty o f assaulting his w ife however m inor the assault.161 It is pertinent to note that the husband and wife must be living together at the time o f the alleged offence. It was held in the English case o f R v. Cream er (1919) that they are still living together even i f the husband is away fighting in a war, and the w ife is living w ith a lover. Perhaps the best v iew is to hold that a husband and wife are living together in the eyes o f the law until they are legally separated. 160 (1913) Q.WN. 18. 161 Alawusa v. Odusote (1941) 7 WACA 140.______________________________ UNIVERSITY OF IBADAN LIBRARY 1 1 0 Criminal Armoury The exceptions to this defence are viz; 1) The defence will not avail when the act is committed by a spouse who is leaving or deserting, or when about to leave, or desert, the other. 2) In the case o f an act or om ission o f w hich an intention to injure or defraud some other person is an element, e.g. if a wife secretly, and w ithout telling her husband kept some o f her husband’s properties intending that w hen he discovers the loss he w ill make a claim on the insurance company. UNIVERSITY OF IBADAN LIBRARY ________________________________________ Criminal Armoury Defence o f Mere Presence The defence o f mere presence connotes an ordinary state or fact o f being in a particular place and time. Essentially, for a person to be a party to an offence as explained in Section 7 — 10 o f the Crim inal Code such a person m ust have actually does the act or make the omission which constitute the offence or does or omits to do any act for the purpose o f enabling or aid ing another person to com m it the offence or any person who counsels or procures any other person to com m it the offence or aids another person in com m itting the offence. Furtherm ore, the fact that som eone was at the scene o f the com m ission o f a crime or m erely present w ithout doing anything m ore than tha^is not sufficient to m ake him party to the com m ission o f such an offence. A party to an offence m ust do m ore than mere presence. He m ust have aided, counseled procured or done any other thing(s) which would warrant for the prosecution o f the suspect. The fact that he does nothing to prevent the crime or he did not call the attention o f the Police Officer(s) to the commission o f the crime is not sufficient to m ake him a party to such offence. Legally speaking, it is the responsibility o f the prosecution to prove that the suspect or the accused person was not merely present but that he did som ething to encourage, aid, abet or UNIVERSITY OF IBADAN LIBRARY 112 Criminal Armoury procure the com m ission o f the crime for which he has been charged either alone or along with the people in which group he was arrested either at the time o f the com m ission o f the offence or immediately thereafter. Though, it is a trite law, in the case o f R v. A llan 162 that every person who is in a crowd and who is to be associated with such a crowd in the comm ission o f a crime m ust have been actually or constructively present and must have an intent to encourage, procure, aid or facilitate the comm ission o f that crime. Frankly speaking, there has not been much cases on this defence. But here are the available ones. In the case o f M illar v. State163 where the appellant, a British National was on the 3 rd day o f October 2002 arraigned before the High Court o f Lagos State Crim inal D ivision on a charge o f murder. It was alleged that on or about the 12 th day o f April, 2002 at No. 19B Dakar Road, Apapa, Lagos, murdered a lady by name Miss. Anne Marie Compton Gale, an Australian national, thereby com m itting an offence contrary to and punishable under section 319 o f the Crim inal Code, Cap 32, Laws o f Lagos State 1994. The appellant pleaded not guilty to the charge and the prosecution called a total o f eight witnesses while the appellant testified in his own defence and called three 162 (1965) 1 Q.B. 130 163 (2005) 16 WR.N p.31_________________________ UNIVERSITY OF IBADAN LIBRARY Criminal Armoury wimesses. The deceased, who was a lover and business partner o f the appellant, in her early forties, was known to be suffering from a kind o f psychotic disorder called “m anic depression” whenever she fell into depression, she would keep indoors for days and would want nobody to see her in the bedroom which she shared w ith the appellant, who was at the m aterial time nursing some blisters on the soles o f his feet which developed into sores and was emitting a putrid smell, the appellant being a diagnosed diabetic. As a result o f the foul odur, appellant had to relocate to another bedroom in the house, part o f which house also doubles as an office apartm ent for the com pany operated by the appellant and the deceased. The deceased was thus1 left alone to stay in the bedroom which she used to share with the appellant — the master bedroom. The deceased was one day found dead and following the autopsy report, the appellant was charged for murder primarily because he was the only one living w ith the deceased in the house and was alleged to be the only one w ith access to the m aster bedroom then occupied by the deceased. A t the conclusion of trial the appellant was found guilty and sentenced by the learned trial judge to death by hanging. T he appellant was dissatisfied w ith the decision o f the low er Court and appealed to the Court o f Appeal. T he C ourt o f A ppeal unanimously allowed the appeal and held that “it is an established UNIVERSITY OF IBADAN LIBRARY ________________________________________ Criminal Armoury principle o f law that it is unsafe and im proper to convict and accused person merely because he was present when an alleged offence or crime was committed without m ore.164 In the same vein, the case o f R v. Akpunonu and Sunday165 where the appellant, one Nwanglasi Sunday and her husband were convicted for the murder o f a newly born child. The evidence led at the trial showed that the child was buried alive by his father in the presence o f the m other who is the second appellant in this case. A part from her m ere presence, she did nothing to aid the father, that is the first appellant either counseled or procured him to bury the male child o f the family. The Court held that the second appellant ought not to have been convicted because in the opinion o f the Court, the verdict could not be supported having regard to the evidence since there was nothing to bring her w ithin the provisions o f Section 7 o f the C rim inal Code. She was accord ingly discharged and acquitted. A lso the case o f Yaw Azum ah & Kwame Keholo v. The King166 13 where the counsel to the appellant alleged that a prosecution witness was an accomplice in the case for which the appellant stood trial, because the witness was present when the crime was being committed and did not run away or report the m atter to the Police. The Court at page 88 o f the report said as follows: 164 See Yinusa v. State (1978) 1 NCAR 109. 165 (1942) 8 WACA 107 166 WACA 87, 88 UNIVERSITY OF IBADAN LIBRARY ________________________________________ Criminal Armoury 1 “On the question o f mere presence which is all that has been proved, I would refer to the case o f Rex v. Gray in which the Lord C h ief Justice said — It is not necessary that a man, to be guilty o f murder should actually have taken part in a physical act in connection with the crime. If he has participated in the crim e; that is to say if he has a confederate; he is guilty although he has no hand in striking the fatal blow. Equally, it must be borne in mind that the mere fact o f standing by when the act is com m itted is not sufficient. For a m an to become am enable to the law, must take such a part in the comm ission o f the crime as m ust be the result o f a concerted design to commit the offence”. Finally, in the case o f Enweonye & 2 others v. The Queen167 the three appellants were convicted o f murder. There wtts no conclusive identification o f the body o f the deceased, but it was proved that the first and second appellants attacked the deceased and his brother, and that after the deceased was shot by the first appellant and his brother by the second appellant both fell into a river, and the first and second appellants retrieved their bodies and took them ashore and into the bush. The deceased has never been seen or heard o f since. A body which could not be identified was exhum ed some time later in the bush. It was found buried with another body, identified as that 167 (1955) 15 WACA 1 UNIVERSITY OF IBADAN LIBRARY 1 1 6 ________________________________________ Criminal Armoury o f his brother. The trial judge found both appellants guilty o f murder and held on the evidence that it had been established that the deceased had been killed by the first appellant actively aided by the second appellant. The trial judge also convicted the third appellant for murder under section 7 (c.) o f the Criminal Code in that he aided in com m itting the offence. Counsel appearing for the crown did not support this conviction. The three o f them appealed against their conviction but the appeal o f two o f them was dismissed. With regard to the third appellant whom the judge found to be present on the bank o f the Ibu — River and did nothing else, the Court held that in order to bring a person within Section 7 (c.) o f the Criminal Code, there must be clear evidence that either prior to, or at the tim e o f the com m ission o f the act, the appellant had done som ething to facilitate the com m ission o f the offence. The Court was not satisfied that the appellant was sufficiently High in rank in their community to have either influenced or encouraged the act. In fact it was further found that the appellant was not sufficiently near the place where the act was comm itted apart from being on the bank o f the river. UNIVERSITY OF IBADAN LIBRARY ________________________________________ Criminal Armoury 1 1 1 Offence N ot Known to 1T̂cw> It is clear beyond any modicum o f doubt tha t f o r any person to be a lleged f o r the commission o f any offence, such offence m ust be spelt out in a written law. This is the object o f the 1999 Constitution o f the Tederal R epublic o f N igeria. 1*2 Section 36(8) and (12) o f the 1999 Constitution provides: 36 (8) No person shall be held to be guilty o f a criminal offence on account o f any act or om ission that did not, at the time it took place, constitute such an offence, and no penalty shall be im posed for any crim inal offence heavier than the penalty in force at the time the offence was committed. 36 6123 Subject as otherwise provided by this Constitution, a person shall not be convicted o f a criminal offence unless that offence is defined and the penalty therefore is prescribed in a w ritten law ; and in this subsection, a written law to an act o f the N ational Assem bly or a law o f a State, any subsidiary legislation or instrum ent under the provision o f a law. It is hereby clear that under section 36(8) and (12) (supra) that for a person to be held guilty o f any act or om ission the following conditions must be fulfilled. a) Such act or om ission m ust at the tim e it took place, constitutes an offence. UNIVERSITY OF IBADAN LIBRARY Criminal Armoury b) The penalty for such offence must be proportionate to the offence com m itted in accordance w ith the law in force at the time o f the com m ission o f such offence. c) The offence alleged o f must be defined and the penalty therefore m ust be prescribed in a written law. d) The w ritten law refers to an A ct o f the N ational Assembly or a Law o f a State, any subsidiary legislation or instrum ent under the provisions o f a law. Furthermore, it must be noted by virtue o f the provision at the beginning o f section 36 (12) (supra) i.e. “subject as otherwise provided by this constitution”. This means the Constitution itself can state contrary to the four elements stated above. So it should be noted that it is not for the Tribunal or Court to conclude that an A ct is unlawful when the law itself did not say so. In the case o f Olieh v. Federal Republic o f N igeria168 in this case one o f the issues for consideration is w hether the appellants can be convicted for conspiracy to boost an account when such offence is unknown in our laws. T he C ourt o f Appeal through his Lordship per Jean Omokri JC A @ p.24 held that “the provision did not create any offence, it only has the Tribunal jurisdiction to try other offences relating to the business or operation o f a bank under any enactm ent. The 168 (2004) llF R p.l. UNIVERSITY OF IBADAN LIBRARY Criminal Armoury expression “other offences” means other offences defined in a w ritten law. The provision admits that the Tribunal can not try lest there be gap and convict any person for any offence not known to law or not provided for in any enactment. This is in consonance w ith the clear and unam biguous provision o f section 33(12) o f the 1979 Constitution which was in operation when the appellants were tried and convicted by the Tribunal. As there is no offence shown to law as “ falsely boosting an account”, there can not be any conspiracy to com m it such. It is clear that one can not conspire to comm it an offence which is not known to law or which is non- existent” . However, as Niki Tobi JSC held in FRN v. Ifegw u169 that “I too do not think that section 166 o f the Crim inal Procedure Act is applicable because the section presupposes a situation where an offence known to law is preferred. Naturally, where no offence known to law or a non- existent offence is preferred Section l 66 o f the Crim inal Procedure A ct can not be invoked to cure any error or omission arising from unknown or non- existent offence. In the result it is m y decision that the conviction o f the appellants for the phantom offence o f “falsely boosting an account” by the Tribunal is a flagrant violation o f the clear and unambiguous provisions o f Section 33 (8) & (12) o f the 1979 Constitution. N obody can be convicted o f any 169 (2003) 15 N W L R (pt842) p .113 . @ 2 1 5 o f the rep o rt UNIVERSITY OF IBADAN LIBRARY ________________________________________ Crimiual Armoury offence except that created under a written law and to convict any person under a non- existing offence unknow n to law is unconstitutional, null and void” It follows therefore that once charges are unknown to law, the Court or Tribunal has no jurisdiction to try the accused person and the judgment, conviction and sentence should be set aside where a Court has no jurisdiction to adjudicate on a m atter, the proceed ings o f the C ourt and the u ltim ate adjudication w ill am ount to a nullity, no matter its correctness and no m atter how well decided. The defeat is extrinsic to the adjudication. In the case o f Okoro v. Police170 where it was held that the accused person has been arraigned on a non-existent charge and the trial was void. In conclusion, the case o f Inspector General o f Police v. Gbadam osi171 is also instructive. The appellants in this case was convicted at a M agistrate Court o f offences contrary to the “Crurunal A ct” . Under section 151(3) o f the Crim inal Procedure A ct Cap. 43, the written law and the section o f the written law against which an offence is said to have been com m itted is required to have been set out in charge. The Court held that there is no law known as the Criminal Act. The preferm ent o f a charge under a non- ex isten t law is as fundam ental an error as charging such a person under a law that had been repealed. The whole trial is a nullity.” 172 170 (1953) 14 WACA 370 171 (Lagos-LD/47 CA4/2/65) 172 See The Queen v. Tuke (1961) ALT. N.L.R.258; The Queen v. Bukar (1961) ALT.NT.R UNIVERSITY OF IBADAN LIBRARY ________________________________________ Criminal Armoury Defence o f Honest Claim o f Right The defence o f honest claim o f right is one o f the prominent defences under the Nigerian Crim inal Law. It is well established under the Crim inal Code. Section 23 o f the Crim inal Codes provides that “a person is not crim inally responsible, as for an offence relating to a property, for an act done or omitted to be done by him with respect to any property in the exercise o f an honest claim of right and without intention to defraud”. It is crystal clear from the above section that this section is m ainly a protection to offence relating to property. This is the reason w hy his Lordship, Oputa J. (as he then was) in the case o f Um ekesiobi U. Ufele & ors v. Com m issioner o f P olice173 held that “by Section 23 o f the Crim inal Code a person is not crim inally responsible as for an offence relating to property etc”. It is therefore clear that for this defence to be invoked the offence for which the person is accused m ust be an offence relating to property and the act alleged to constitute the offence m ust be an “act done or om itted to be done by him w ith respect to any property” . W ithout attem pting any detail or exhaustive survey, offence relating to property w ill definitely include stealing under section 390, obtaining by false pretences under section 419, dem anding w ith m enaces under section 406 and malicious damage under section 451 o f the Criminal Code”. 175 3E C SL R 4 2 at p .43 -44 UNIVERSITY OF IBADAN LIBRARY ________________________________________ Criminal Armoury Therefore, I submit humbly that a defence ofbonafide claim o f right is the claim in good faith by the suspect that the property involved was believed to be his own. But the question is how can a man take poss£s^fon or dem and possession o f a property by m erely believing that it is his own unless he is entitled to im m ediate possession o f it? Section 441 o f the Crim inal Code strengthens the fact that an act which causes in jury to property and which would otherw ise be lawful is unlawful i f done with intent to defraud any person. Therefore, from the provision o f Section 23 o f the Criminal Code, two things are obvious and which are: (b) the claim must be without an intention to defraud; and (c) it m ust be honest. And in “The Nigerian Criminal Code Companion by justice E. O. Fakayode p. 227, para. 1222, an intention to defraud has been described as intention; (1) to cause unjustified economic, financial or pecuniary loss to another; or (2) to deprive another o f some property by deceit; (3) to induce a m an to act to his in jury by deceit. W hat this connotes is that an intention to defraud will not exist i f an accused person dem and some properties from another person even w ith a threat o f in jury i f his dem and is not m et as long as there is an honest assertion o f w hat he claims to be a lawful claim even though the claim m ay be completely unfounded in law or in fact. UNIVERSITY OF IBADAN LIBRARY ________________________________________ Criminal Armoury It should be noted that a person has a claim o f right where he honestly asserts what he believes to be a lawful claim. It is plain that if a man has in truth the right to take goods then his taking o f them in assertion o f the right cannot be a felony. But the question w hether an accused person has an honest be lief in the existence o f his right to take the goods in the m anner and circum stances in which he did take them is a question o f fact for the consideration o f the Court and in each case a m atter o f evidence. Also as long as the accused honestly believed that he had the right to take the goods, the defence is available to him notwithstanding that he had no right to property in them nor any right to take them. In order words, the defence under section 23 o f the Criminal Code avails where an accused person is acting under a right which in fact exists or where he is acting under a supposed right even though such a right may be unfounded either in fact or in law — Chital N guta & ors v. Com m issioner o f Police174 To assert an honest claim o f right in respect o f a particular property, the elem ent o f honest claim o f right is bone fide or good faith. A nd this is w hy D osum u J. in the case o f G eorge X an th op ou los v. C om m issio n er o f Police175 held that where the defence to an action for malicious dam age is that the acts com plained o f w ere done in exercise 174 (1962) 6 ENLR 68. 175 (1979) 10-12 CCHCJ 206________ UNIVERSITY OF IBADAN LIBRARY 1 2 4 Criminal Armoury o f a claim o f right, it w ill fail unless the prisoner can show that he acted in bona fide exercise o f a supposed right and did no more dam age than w ould reasonably have supposed to be necessary for its assertion”. However, Section 23 o f the Criminal Code will not avail an accused person m erely on p roof that his act or om ission was in respect o f or w ith respect to property if it is not also established that the offence for which he stands charged pursuant to the said act or omission is also an offence relating to property It is then that the test o f good faith negating fraud can apply.176 A nother angle to this defence is the reasonableness o f the claim. In the case o f Oyewo v. The State177 where the Court held: “in the first instance, Section 23 o f the Crim inal Code which set out the defence o f bona fide claim o f right to a crim inal liab ility does not require that the claim shall be a reasonable one, though the question w hether a claim is reasonable or not may have a bearing on the question whether or not it is honestly held provided the claim is honestly held, it would appear that the section affords a defence to anyone who is honestly asserting what he believes to be a lawful claim, even though it m ay be unfounded in law and fa c t ... B xcept the claim is shown to be fraudulent even if unfounded in law and 176 Oputa C. J, (as he then was) in Sylvester Odife & ors v. Commissioner of Police (1973) 3 E CSLR(ptl 1) 822. 177 (1978) 4 OYSHC (pt 1) p.75 UNIVERSITY OF IBADAN LIBRARY Criminal Armoury fact, it is an absolute defence to a criminal charge. It is gravingly erroneous for the trial Magistrate to hold that the claim o f right must be reasonable. The reasonableness would not only come into play when considering its honesty and o f which no finding was m ade .. . ” Though, in respect o f a defence o f a bonafide claim o f right, it is settled law that such a claim m ight be unreasonable but w hat is essential was the honest belief o f the accused that he is entitled to the possession o f the property, said to have been stolen by h im 178 Meanwhile, Section 23 o f the Criminal Code only protects a person w ith a claim (whether real or fancy) to property who does a crim inal act in relation to the property in the honest belief that he has a right to assert his claim o f ownership in a m anner which turns out to constitute the offence complained of. In other words, the law protects the ignorance of the accused as to the proper manner to pursue his claim o f ownership. The test o f this defence is subjective, it means that the Court has to look at the accused before it, consider its standing, education or experience in life to determ ine w hether he could have honestly made a mistake as to the choice o f a m ethod to assert his claim as to the ownership o f the property.179 178 Adegoju v. Lemone and ors (1959) WRNLR138; R v. Bernhard (1938) 26 Cr. App. R. p. 137. 17l>Stephen Nwakire v. Commissioner of Police (1991) 1 NWLR (pt 167) @ 345. UNIVERSITY OF IBADAN LIBRARY Criminal Armoury H owever in the case o f R v. Skivington180 W here it was held that a claim o f right to the property was a defence to a charge o f robbery and that the defendant need not show that he believed that he was entitled to take the property in the way that he did. The Court when deciding on a claim o f right as a defence to charges involving unlawful assembly and riot should really look as a whole on what the accused did in relation to the right he honesdy asserted in determ ining his criminal liability.181 180 (1967) 1 All E.R. 483; 51 Cr. App. R. 167. - 181 Ibeziako v. State (1989) 1 CLRN p. 123; Nwosuv. State (2004) 10 FRp.99; G. Ejike v. Inspector General of Police (1961) E. N. L. R. p.7; Igbuku Udu v. Inspector General of Police (1964) NMLR p.l 16; Fashions Iroaghan v. Commissioner of Police (1964) NMLR. 48; I.G.P. v. Emeozo (1957) W R. N. L. R. 213. UNIVERSITY OF IBADAN LIBRARY Criminal Armoury AutrefoisAcquit or Discharge Section 36(9) of the 1999 constitution prov id es that no p erson who shows that he has been tried by any Court o f competent Jurisdiction or a T ribuna lfor a crim inal offence and either convicted or acquitted sha ll again be tried f o r that offence o r f o r a crim ina l offence having the sam e ingredients as that offence save upon the order o f a superior Court. The elements o f this provision s are: 1) The person m ust have been previously charged for a criminal offence. (2) Such charge must be before Court o f a com petent Jurisdiction or a Tribunal. (3) Such person m ust have been either convicted or acquitted. Immediately the above conditions are met, such person shall not again be tried for a crim inal offence having the same ingredients. But the exception to this ru le is that a superior Court o f record can order a person who had been tried for the same crim inal offence to be tried again. The superior Courts o f record refer to here are those Court m entioned in Section 6(5) o f the 1999 Constitution. Also section 181 o f the Crim inal Procedure Act provides that “in addition to the provisions o f section 171 a person who has once been tried by a Court o f com petent UNIVERSITY OF IBADAN LIBRARY ______________________________________ _ Criminal Armoury Jurisdiction for an offence and acquitted or convicted o f such offence shall not, while such acquittal or conviction remains in force, be liable to be tried again for the same offence nor on the same facts for any other offences for which a different charge from the one made against him m ight have been made before the Court by which he was acquitted or convicted under the provisions o f subsection o f section 161 or for w hich he might have been convicted under subsection 2 thereo f”. Section 181(1) states: without prejudice to section 171, a person charged w ith an offence (in this section referred to as “the offence charged”) shall not be liable to be tried therefore if it is shown; (a) that he has previously been convicted or acquitted o f the same offence by a competent Court or, (b) that he has previously been convicted or acquitted by a com petent Court on a charge on which he m ight have been convicted o f the offence charged; or (c) that he has previously been convicted or acquitted by a com petent Court o f an offence other than the offence charged, being an offence o f which, apart from this section, he might be convicted by virtue o f being charged w ith the offence charged. (2) N othing in sub-section(l) above shall prejudice the operation o f any law given power to any Court, on an UNIVERSITY OF IBADAN LIBRARY Criminal Armoury appeal, to set aside a verdict or finding o f any other Court and order a re-trial” . H ow ever, it could be seen that the provisions o f section l81 o f the Crim inal Procedure A ct is com pletely in consonance with section 36(9) o f the 1999 constitution. In the same vein Section 221(1) o f the Crim inal Procedure Act provides that “any accused person against whom a charge or information is filed may plead- (1) that he has been previously convicted or acquitted, as the case m ay be, o f the same offence; or (2) if either o f such pleas is pleaded in any case and denied to be true infact, the Court shall try w hether such plea is true in fact or not. (3) I f the Court holds that the fact alleged by the accused do not prove the plea, or if it finds that it is false infact, the accused shall be required to plea to the charge or information. (4) N oth ing in this section shall prevent a person from pleading that by virtue o f some other provision o f law he is not liable to be prosecuted or tried for any offence with which he is charged”. It is also observed that the words o f section 181 are “shall not be liable to be tried again for the same offence”.182 From this it follows that it is for the accused to raise a plea in bar if he so desires. This act does not require the form ality o f 1S2 R v. Usuman Pategi (1957) NRNLR 47. UNIVERSITY OF IBADAN LIBRARY ________________________________________ Criminal A rmoury a written plea or a replication. It was pointed out in the case o f Edu v. Police1” that the wording o f Section 221 (l)(a ) would not cover all cases m entioned in Section 181 but the Court held that the procedure laid down in Section 221 should be followed in all cases arising under Section 181, hence the Lagos State amendments. The plea o f autrefois acquit ought to be m ade before the accused pleads to the charge itself. In the case o f Edu v. Police1” the accused pleaded to the general issue, and it was only during die examination o f evidence that counsel submitted that the accused could not be tried upon the charge, having been previously acquitted to another charge based upon the same fact. The West African Court o f A ppeal held that the w ording indicates that it m ust be the accused h im self who should plead this in bar, and Section 221 contem plates that it m ust be pleaded before pleading not guilty to the charge.3 8*185 The Court held in the case o f I.G.P v. M arke186 that where a charge against defendant has been dism issed on the m erits o f the case he cannot be tried for the same charge again. A discharge o f defendant prior to his putting his defence but after the prosecution has closed his case is discharge on the merits.187 183 R v. Usuman Pategi (1957) NRNLR 47. IS4 (1952)14 WACA 163 185 (1952) 14 WACA 163. 186 NvraJiv. I.G.P (1955) 1 E.N.L.R.l;Rv. Nta (1946) 12 WACA 54 I.G.P. v.Johnson (1959) L.L.R. 55; R v. Jinadu (1948) 12 WACA 368. 187 (1957) 2.F.S.C pg 5. UNIVERSITY OF IBADAN LIBRARY ________________________________________ Criminal Armoury It should be noted that when there is evidence which suggests that accused has been p rev iously acqu itted or convicted, discharge of the same offence or any other offence upon the same facts, the Court has a duty to enquire into the matter to ascertain whether it is a proper case for the exercise o f its discretion to allow him to w ithdraw its general plea; and on being satisfied that it is a proper case for a plea o f autrefois acquit (or convict) or discharge to be heard or determ ined, a Court is not require to wait until an application to withdraw the general plea is m ade.188 Therefore, once an accused person has been discharged and acquitted by a Court o f competent jurisdiction o f an offence charged against him he cannot, in law, be prosecuted for the same offence again. Flatm an v. L ight1*9 Halsted v. C lark190 R v. C onnelly191 Connelly v. D.P.P192 R v. Shipton Ex parte D .P.P193 Edu v. Com m , o f P olice194 Nwabi v. I.G .P 195 R v. I ta 196 R v. Jinad u 197 198 I.G. v. M arke19* H aruna v. A sh iru '99 Inspector General of Police v. Ighoroji (1957) N.R.N.J ..R.182; Chief Conservator of Forests v. Moses Obanor (1958) WR.N.E.R.43. 180 (1946) 2 A.E.R. 368 190 (1944) 1 A.E.R. 270 m (1963) 3 A.E.R 510 192 (1964) 2 A.E.R. 401 1.3 (1957) 1 A.E.R. 206 1.4 (1959) 4 ES.C. 175 195 (1955) 1 E.N.L.R. 1 196 (1946) V2 WACA 54 197 12 WACA 368 198 (1957) 2 ES.C. 5 199 (1999) 7 NWER (pt 612) 579. UNIVERSITY OF IBADAN LIBRARY 132 Criminal Armoury The discharge o f an accused at a prelim inary inquiry is not acquittal and cannot give rise to a plea o f autrefois acquit200 A plea o f autrefois convict is a bar to the trial o f an accused for an offence for which he has earlier been convicted. Ogenyi v. I.G .20' I.G. v. Igbhoroji2022 03 R v. E u w a ® C h ie f Conservator o f Forests v. O banor204 * Connelly v. D.P.P. 205 H aruna v. A sh iru206 The principle, at common law, is that a person must not be put tw ice in peril for the same offence207 W hether an order o f retrial in the same case amounts to double jeopardy; principle o f nemo debet bis vaxaris pro unem eadem causa — that a man cannot be put in double jeopardy in the same cause has been laid to rest in the case o f Goni v. State,208 the Court held “putting a man into double jeopardy in the same case m eans a trial in a new and independent case where a man has been tried once. It does not mean that a man may not be tried twice in the same case. A second or another trial in the same case is only a continuation o f the jeopardy which began w ith the trial. That is not putting a m an . . . into double jeopardy. The question that arises is, whether the order o f retrial in the circum stances o f this case is a new and 200 I.G. v. Johnson (1959) L.L.R. 55. 201 (1957) NRNLR 140 202 (1957) NRNLR 182 203 (1943) 9 WACA 194 2,14 (1958) WACA 43 21,5 (1964) 2 All E.R. 401; (1964) A.C. 1254. 206 (1999) 7 NWLR (pt 612) 579. 2,7 R v. Hooge 6 NLR 56; R v. Yusa (1940) 6 WACA 204. 2118 (1996) 7 NWLR (pt 458) p.ll, @ 112 ______ ____________________________ UNIVERSITY OF IBADAN LIBRARY Criminal Armoury ndependent trial where one has been tried once. In which ;ase, the appellant would be put in double jeopardy which is not allowed by law”.209 where Idigbe J.S.C. o f blessed memory said:- “It is my view, that subsection 9 o f Section 33 o f the 1979 Constitution (now Section 36(9) o f the 1999 Constitution), clearly anticipated, that in the cause o f a “trial” o f an accused person from Court to Court for one and the same Criminal offence, a Court Higher than the last o f the intermediate Courts; may order a retrial notwithstanding that in the process o f trial from one Court to the other, one o f the intermediate Courts, may have made an order, and in those circumstances, there is in my view still be one trial and not another or second trial”. That was Idigbe JSC expounding the maxim “N em o D ebet B is V axaris P ro U nem E adem C ause”. I am equally fortified in the above view by a passage in the judgment o f a very eminent Judge, Holmes J. in the case o f K epner v. U nited State210 in which Holmes J. observed: Tt is more pertinent to observe that it seems to me that logically and rationally, a man cannot be said to be in more than once in eopardy on the same case, however often he may be tried. The jeopardy is one continuing jeopardy. Everybody agrees that the principle in its origin was a rule forbidding a trial in a new and independent case where a man has already been tried >nce. But there is no rule, that a man may not be tried twice in0* 1 :09 Rabiu v. State (1981) 2 NCLR 293 @ 354 - 355 10 (1903) 195 U.S. @130 also 24 Supreme Court Report 799 @ 806 - 807 UNIVERSITY OF IBADAN LIBRARY Criminal A rmoury the same case . . . I f a statute should give the right to take exceptions (exceptions for error in trial i.e. a right o f appeal) to the government. I believe it will be impossible to maintain that the prisoner would be protected by the constitution, from being tried again. . . for the reasons which I have stated, a second trial in the same case m ust be regarded as only a continuation o f the jeopardy which began with the trial below” I humbly subm it w ith the application o f the principle enunciated by IdigbeJ.S.C. in N abiu Raflu v. T h e State211,1 am in complete agreem ent with the views expressed in those cases, that an order o f retrial is not putting the appellant/the accused person in double jeopardy. A second trial in the same case is and m ust be regarded as only a continuation o f the same jeopardy which began with the trial. An order o f retrial in the circumstances is in accordance with the dictates o f the law. The following five conditions must co-exist before an order o f retrial can be made by an Appeal Court, to wit; (a) that there has been such an error in law or irregularity in procedure, winch neither renders the trial a nullity nor makes it possible for the A ppeal Court to say that there has been no miscarriage o f justice; (b) that apart from the error o f law or irregularity in procedure, the evidence taken as a whole discloses a substantial case against the appellant. 211 (Supra) and Holmes J. in Kepner v. United States (supra UNIVERSITY OF IBADAN LIBRARY _____________________________________ Criminal Armoury (c) that there are no special circum stances as would render it oppressive to put the appellant on trial a second time; (d) that the offence for which the appellant has been convicted was not merely trivial; and (e) that to refuse an order for retrial w ould occasion a greater m iscarriage o f justice than to grant it212 212 Akinfe v. State (1988) 3 NWLR (pt 85) 729. UNIVERSITY OF IBADAN LIBRARY Criminal Armoury Defence o f Pardon (Amnesty) \ Pardon, according to the Black’s Law D ictionary,213 is an act or instance o f officially nullifying punishment or other legal consequences o f a crime. A pardon is usually granted by the Chief Executive o f a Government. The President in some jurisdiction has the sole power to issue pardon for federal offences and State Governors have the powers to issue pardons for State crimes — Also term ed Executive pardon. The term pardon is first found in early French Law and derived from the latin word Perdonare (“to grant freely”) suggesting a gift bestowed by the sovereign. It has thus come to be associated w ith a somewhat personal concession by a Head o f State to the perpetrator of an offence, in mitigation or remission o f the full punishm ent that he has merited. There are four classifications o f pardon viz; (1) A bsolute pardon: This is a pardon that releases the wrongdoer from punishment and restores the offender’s civil rights w ithout qualification. It is also term ed full pardon/ unconditional pardon. (2) Conditional pardon: This is a pardon that does not becom e effective until the w ron gdo er satisfies a prerequisites or that will be revoked upon the occurrence o f some specified act. 213 Deluxe Eighth Edition by Bryan A. Gamer, Editor in Chief UNIVERSITY OF IBADAN LIBRARY ________________________________________ Criminal Armoury 1 37 (3) Faultless pardon: This is a pardon granted because o f the act for which the person was convicted was not a crime. (4) General pardon: This is synonymous to amnesty which is a pardon extended by the governm ent to a group or class o f person’s usually for a political offence; or the act o f a sovereign power officially forgiving certain classes o f person’s who are subject to trial but have not yet been convicted. Therefore, the legal backing for this defence is found in Section 36(10) o f the 1999 Constitution which provides that “no person who shows that he has been pardoned for a crim inal offence shall again be tried for that offence.” T his presupposes that Section 221(1) (b) o f the Crim inal Procedure A ct is subject to section 36(10) o f the 1999 Constitution. Section 221 (1) (b) (supra) provides that “any accused person against whom a charge or information is filed may plead — (b) that he has obtained a pardon for his offence. In addition to the above, if the accused had satisfied the Court on the ground o f pardon, the Court should equally rec ip rocate the gesture o f law hav ing listened to the prosecution. The order the Court should give, would be the one to discharge the accused and any other order the Court m ay deem fit in the circum stances o f the case in question. UNIVERSITY OF IBADAN LIBRARY Criminal Armoury Want o f Prosecution / Want o f Diligent Prosecution Want o f prosecution or want o f diligent prosecution is a failure o f a litigant or prosecution in Criminal case(s) to pursue the case. D iligence is prim arily one o f the w atchw ord o f legal profession. So anybody who belongs to this noble profession is im plored to imbibe the culture for there is no royal road to winning o f cases than diligence and industry. The law and the Court expect certain degree o f diligence from the Barrister when handling a suit before it. And for that diligence to be actively d isp layed every steps w hich are m an d ato ry or d iscretionary to be taken in pursuing such b rief should be taken expeditely and expediently which include filing o f relevant documents, paym ent o f filing fees, putting the other side on notice about the im pending action against them in Court, bringing his w itnesses to Court properly, display o f legal prudence, candour and decorum in the temple o f justice and such other prerequisites honourably expecting from any members o f the bar. Therefore, w hen a suit is not pursued and prosecuted with expected diligence such suit m ay get thrown out from Court (i.e. to be struck out). The litigant can still come back to UNIVERSITY OF IBADAN LIBRARY ________________________________________ Criminal Armoury the Court when the needed, expected momentum and diligence had been gathered. The Court expressed its m ind in the case o f O gundoyin & ors V. Adeyem i214 w hen it said, “it needs be emphasized, however that the fact that the order dismissing the appeal o f the appellant w ill be set aside is not tantam ount to a decision by this Court that the appellants have conducted their appeal in die Court below with due diligence . . . ” This m ay happen in different spheres o f handling a matter. It may be due to an inordinate and inexcusable delay which has resulted in prejudice to the defendant the accused person or in other non-challant ways. In order for an application to dismiss a suit for want o f prosecution to succeed the defendant m ust show: (ii) That there has been an inordinate delay by the plaintiff; what is an inordinate delay must depend on the facts o f each particular case; (iii) That this inordinate delay is inexcusable; as a rule, until a credible excuse is made out, the natural inference is that it is inexcusable. 214 (2001) 7NSCQRpg378at 398 UNIVERSITY OF IBADAN LIBRARY ________________________________________ Criminal Armoury (iv) That the defendant is likely to be seriously prejudiced by the delay, as a rule, the longer the delay, the greater the likelihood o f serious prejudice. This, however, must \ not be taken as saying that the application will not succeed even if the defendant is unable to show that he w ill be seriously prejudiced provided conditions (i) and (ii) exist:215. In considering whether to dismiss an action where it has been established that the p laintiff or the prosecutor has been guilty o f inordinate and inexcusable delay which is likely to prejudice the fair trial o f the action, the Court has a discretion and is bound to consider all the circumstances. The fact that the trial o f action is im m inent and the claim is not statute- barred, so that the plaintiff or prosecutor would still be free to \ bring a second action on the claim if the first is dism issed, would be relevant and Highly important considerations and the C o urt w o u ld be s low to strike ou t an actio n in such circumstances2i16 Now, if there has been an inordinate delay which is due to the negligence o f his counsel, while the plaintiff is personally blam eless it m ay be unjust to deprive him o f the chance o f prosecuting his claim217. W here the fault was that o f Solicitor’s 215 See Pryer V. Smith (1977)I.W.L.R 425; (1977) 1 All E.R 218. 2l6Dutton V. Spink Breeching (Sales) Ltd & ors (1977) 1 All E.R 287 CA. see also Austin Securities Ltd V. Northgate and English Stores Ltd (1969) 2 All E.R. 753, & 756; Birkett V. James (1977) 3 WLR38; (1977) 2 All E.R. 801. 217 See Abiegbe & ors V. Udhremu Ugbodume & ors (1973) 1 SC 133. UNIVERSITY OF IBADAN LIBRARY ________________________________________ Criminal Armoury 141 clerk, the fact that the p laintiff m ay have an effective remedy against his Solicitor for professional negligence is not a relevant consideration in deciding whether to dismiss an action for want o f prosecution:218 218 Martin V. Turner (1970) 1 All E.R. 256: (1970) 1 WLR 82; Parton V. Allsop (1971) 3 A11E.R. 370. UNIVERSITY OF IBADAN LIBRARY 142 Criminal Armoury (C h a p ter ^ Jh r e e Grounds for faulting Criminal Proceedings When the Verdit is Unwarranted\ Unreasonable and cannot be Supported Having Regard to the Evidence. The ground o f appeal that a decision is contrary to the weight o f evidence is not a proper one in a crim inal case. The proper ground o f appeal should be that the —verdict or decision is altogether unwarranted, unreasonable and cannot be supported having regard to the weight o f evidence.21V H owever, this ground o f appeal signifies that the judgm ent o f the trial Court cannot be supported by evidence adduced by the successful party, or the trial judge either wrongly accepted evidence or the inference his lordship drew or conclusion he reached based on the accepted evidence cannot be justified and is unwarranted and unreasonable. Though it is a trite law, that the appraisal o f evidence as well as ascription o f probative value is the prim ary duty o f a Chino Adi v. the Queen (1955) 15 WACA p6; Jacob Aremu v. Inspector General of Police (1965) 1 All NLR 217; (1965) N.M.L.R. 327; Iboko v. Commissioner of Police (E.N) (1965) NMLR.384; Wattab v. Inspector General of Police (1956) WRN LR 24. UNIVERSITY OF IBADAN LIBRARY Criminal Armoury 143 rial Court and where the issue turns on credibility o f witness, :he opinion o f the Court m ust be respected .220 But it is now setded law, that, where a trial Court makes a finding o f fact by analyzing and appraising all the evidence led and came to the conclusion to prefer one version against the other, an appellate Court is not perm itted to reverse the finding merely because it vould have reached a different conclusion, if it w ere dealing dth the matter as a Court o f first instance. An appellate Court such as the Court o f Appeal or any other Court empowered in :hat capacity can only come to conclusion that there is a miscarriage o f justice and that injustice has been caused to the party who lost the case, i f the trial Court could be faulted in the exercise o f its judicial function o f evaluating the evidence nd attacking probative value thereto, includ ing issue o f credibility o f witnesses. The evaluation o f evidence is the prim ary respdnsibility o f the trial Court, and appellate Court will only interfere w ith a finding o f fact made by a trial judge where such finding is not supported by evidence led before the trial judge. It is pertinent to note that it is not every error or mistake that w ill result in an appeal against a judgm ent in a suit being allowed. It is only where the error is substantial in that it has occasioned a m iscarriage o f justice that an appellate Court is -20 See Millar v. State (2005) 16 WRN 31@ 24; Adamu v. State (1991) NWLR (pt 187) 530 @538. UNIVERSITY OF IBADAN LIBRARY ________________________________________ Criminal Armoury bound to interfere. W here a trial Court makes a finding o f fact in respect o f any issue and there is sufficient evidence in support thereof; then unless these findings are found to be perverse or are not supported by evidence or were reached as a result o f a w rong approach to the evidence or as a result o f a w rong application o f a principle o f substantive law or procedure, an appellate Court even if disposed to com e to a d ifferent conclusion upon the printed evidence cannot reverse the finding.221 N ow the question is, how should the appellate Court react to a particular decision which is unwarranted, unreasonable and cannot be supported having regard to the evidence? An appellate Court in its prim ary role in considering the judgment o f the trial Court on appeal would have sought to find out: (1) The evidence before the trial Court; (2) W hether it has accepted or rejected any evidence upon the correct perception and approach; (3) W hether it correctly made the assessm ent o f the value on it; (4) W hether it used the im aginary scale o f justice to weigh the evidence on both sides; and (5) W hether the proof beyond reasonable doubt has been properly and adequately discharged by the prosecutor and vice versa. ~ See Mogaji v. Odofin (1978) 4 S.C.91: Onajobi v. Olampekun (1985) 4SC (pt2) 156; Ukejianya v. Uchendu (1950) 13 WACA5, Anyanwu v. Anyanwu (1992) 5NWLR (pt 242 386; Ike v. Ugboaja (1993) 6 NWLR (pt 301) 539; Chiwendu v. Mbamali (1980) 3- 4 S.C 31; Abimbola v. Abatan (2001) 9NWLR (pt 717) 66. UNIVERSITY OF IBADAN LIBRARY Criminal Armoury 1 4 5 (6) W hether there was a certainty which is an essential element o f proof in criminal liability. 222 Manifestly such a ground o f appeal must endeavour to show either that the trial judge wrongly accepted evidence which he should not legally have accepted or that the decision or in fe ren ce d raw n from the ev id en ce so a ccep ted are unjustified.223 In the case o f Lasisi Idowu v. Ajiboye224 both counsel agreed (on appeal) that the M agistrate C ourt’s record o f proceedings did not reflect accurately the purport o f evidence and the legal submission made in Court. The Court held that failure o f the M agistrate to m ake an accurate note o f the oral evidence and legal submissions o f the counsel would result in com ing to an unjust decision. That the judgm ent o f the trial Court is hereby set aside and the suit should be heard de novo before a different Magistrate. Similarly, in the case o f Com m issioner o f Police v. Gloer225 where the accused person was charged w ith the offence o f larceny, receiving and being in unlawful possession o f stolen property contrary to Section 390, 427 and 430 o f the Crim inal Code and he was convicted o f being an accessory. It was held that the evidence was insufficient to support a conviction and must be quashed by reason o f its vagueness in that the offence o f which the accused was convicted was not clearly stated. 222 See Uyo v. A-G. Bendcl State (1986)INWI,R (pt 17) 418. 223 Ogbodu v. Adelugba (1971) 1 ALL NLR 69 at 71.. 224 (1975) 5 U.I.L.R. (pt 111) p.314. UNIVERSITY OF IBADAN LIBRARY Criminal Armoury Trial mthout a Complaint It has becom e a law that for a case to proceed there m ust be a com plaint before the Court, and to proceed w ith a case w ithout a complainant renders the trial null and void. See D uru v. Gum el N .A. 226 It is the com plaint that culm inates into the facts o f a particular matter. In the case o f I.G.P. v. Nwabaju~; It was held that the trial ot the accused could not proceed because the com plainant was not ready and the prosecutor would not proceed without the complainant. Also in the case o f Joseph Idowu Adunkoko v. Ilorin Native Authority228 the appellant in this case was convicted before a provincial Court (in N orthern Nigeria) o f publish ing a false statem ent intended to harm the reputation o f the Emir. The proceeding were initiated by a first inform ation report signed by a Native Authority Police Officer. The Court held that the first information Report was not empowered to take cognizance o f the offence. It was held further that section 379 o f the Crim inal Procedure Code did not save the proceedings since the words “not empowered by law” in that section cannot be taken as covering a case in which there is no com plaint as required by law. The trial was therefore declared a nullity. Conclusively, it is also contrary to natural justice that a person should be convicted or punished for an offence in respect o f w hich there is no com plaint or charge.229 226 (1957) NRNLR p. 151. 227 (1959) 3 K.N.L.R. 32. 228 (1964) N.N.L.R. 84. UNIVERSITY OF IBADAN LIBRARY ________________________________________ Criminal Armoury 1 4 7 Failure to Inform the Suspect o f his Right to Flection O wing to Section 304 (2) & (3) o f the Crim inal Procedure Act which provides as follows:- (2) if a M agistrate at any time during the hearing o f charge for such an indictable offence as aforesaid against a person who is an adult becom es satisfied that it is expedient to deal with the case summarily, the Magistrate shall thereupon, for die purpose o f proceedings under this section, cause the charge to be reduced into writing; if this had not been already done and read to the accused and shall address to him a question to the following effect- “Do you desire to be tried by a judge o f the High Court or w ith a jury, as the case may be, or do you consent to the case being dealt with summarily by this Court?” W ith a statem ent, i f the M agistrate th inks such a statem ent desirable o f the m eaning o f the case being dealt w ith summarily and o f the sitting o f the High Court at which he is likely to be tried if com m itted for trial. And, if the accused consents to be tried summarily shall forthwith ask him the following question- “Do you plead guilty or not guilty7?” UNIVERSITY OF IBADAN LIBRARY Criminal Armoury (3) I f the M agistrate shall not inform the accused o f his right to be tried by a judge o f the High Court or w ith a jury as the case may be, the trial shall be null and void ab initio unless the accused consents at any time before being called upon to m ake his defence to be tried sum m arily by a M agistrate in which case the trial shall proceed as i f the accused has consented to being tried sum m arily by a M agistrate before the M agistrate proceeded to hear evidence in the case”. It is im portant to note that the above provision only apply to the proceedings in the M agistrate Court where sum m ary trial is to take place. And it should be noted also that this provision applies only to an indictable offence i.e. an offence: (a) which on conviction may be punished by a term o f im prisonment exceeding two years, or (b) which on conviction m ay be punished by imposition of a fine exceeding four hundred naira, not being an offence declared by the Law creating it to be punishable on sum m ary conviction — Section 2 o f the Crim inal Procedure Act. UNIVERSITY OF IBADAN LIBRARY Criminal Armoury Therefore, it has been held and concluded that the Court m ust ask the suspect w hether he/she elects to be tried summarily before it or in the High Court where the consent o f the accused to the trial by the M agistrate o f a charge for an indictable offence proceeds to hear evidence nor before the accused is called upon to make his defence the trial is a nullity.230 And also, where the Magistrate did not inform accused o f his right to be tried before the High Court, since accused never expressly consented to being tried by the M agistrate, the trial would be null and void ab initio.231 Finally, the provisions o f Criminal Procedure Act, Section 304 (2) and (3) are m andatory and consequently the omission to record the plea o f the accused w ould be fatal to the proceedings; those proceedings are null and vo id .232 230 C.O.P. v. John Olapade & ors (1959) WN.L.R. 41: 231 R. v. Yekun (1938) 4 WACA 11. 232 Olonye v. I.G.P. (1955-56) WR.N.L.R.P.1. UNIVERSITY OF IBADAN LIBRARY 50 Criminal Armoury By virtue o f the provisions o f Section 36 (I) o f the 1999 constitution which provides that in the determ ination o f a person’s civil rights and obligations including any question or determ ination by or against any governm ent or authority, a person shall be entided to a fair hearing w ithin a reasonable time by a Court or other Tribunal established by law and constituted in such a m anner as to secure its independence and impartiality. It is settled law that the above provision entrenches the com m on law concept o f natural justice w ith its tw in pillars, namely:- (f) that a man shall not be condem ned unheard or w hat is com m only known as A.udi alteram patem, and (ii) that a man shall not be a judge in his own cause or nemo ju d ex in causa sua The section confers on every citizen of this great nation, who has any grievance, the right o f access to the Courts and leaves the doors o f the Courts open to any person w ith the desire to ventilate his grievances and compels the Court that will determ ine the rights o f such person to accord the person a fair hearing.233 233 See Kenon v. Tekan (2001) 14NWLR (pt 732) 12; Deduwa v. Okorodudu (1976) 9- 10SC 328; Mohammed v. Kano N.A. (1908) 1 ALL NLR 424. UNIVERSITY OF IBADAN LIBRARY Criminal Armoury • 5 It is the person who alleges any breach o f the rules o f fair hearing that has the burden o f proof o f same. Such person has to establish how his civil rights and obligations have been adversely affected by the alleged breach.234 it is equally a settled law that w hether a trial or proceedings had been fair or not depends on the facts and circumstances o f each case. The question at this juncture is, w hat are the rights available to an accused person or what constitutes a fair hearing to an accused person? An accused person would be said to have been given a fair hearing if any o f the follow ing is present before, during and after his trial (1) R ight to be heard by an independent and im partial body.235 (2) R ight to be inform ed about the nature o f the crime committed in the language that he understands236 (3) Right to adequate time and facilities for the preparation o f his defence.237 (4) W here the accused person does not understand the language used at the trial, he is entitled to the assistance o f an interpreter w ithout paym ent238 34 Bill Construction Ltd v. Imani Ltd (2006) 28 NSCQR p. 1@ 10. 35 Section 36(1) (2) (a) (b) of the 1999 Constitution, Garba & ors v. University of Mardugauri (1986) INWLR (pt 18) 550; R. v University of Cambridge (1723) S. 128. 36 Section 36 (6) (a) of the 1999 Constitution; Nwachukwu v. The State (1985) 2 NWLR p. 27; Maja v. The State (1980) 1 NCR 70. 37Section 36 (6) (b) of the 1999 Constitution; Udo v. the State (1988) 3 NWl.R 316; Shemfc V. C.O.P. (1965) 1 All v. IGP (1961) 1ALL NLR 432; Omega v. The State (1964) 1 ALL NLR 379. 311 Section 36 (6) (e) of the 1999 Constitution; Ajayi and or v. Zaria N.A. (1963) 1 All NLR169; Gwonto v. The State (1983) 3 S.C.; Section 241 CPC and Section 199 CPA. UNIVERSITY OF IBADAN LIBRARY ________________________________________ Criminal Armoury (5) Right to defend himself in person or by legal practitioner of his own choice239 (6) Right to examine prosecution witnesses.240 0 Rights to be presumed innocent until he is proved guilty.241 (8) Offence charged for must be known to law.242 (9) Right to silence243 (10) Right against double jeopardy244 (11) There must be publicity o f trial245 The above requirements are very consequential to be observed in criminal trial and where the Court fails in observing any o f them there will be denial o f fair hearing. So, a hearing can only be fair when all parties to the dispute are given a hearing or an opportunity o f a hearing246 The principles o f natural justice are a part o f the pillars that support the concept of the rule o f law They are indispensable Section 36(6) (c.) of the 1999 Constitution; Ariori v. Elemo (1983) SCNLR p .l; R. v. Uzodinma (1982) 1NLR27. Section 36(6) (d) of the 1999 Constitution; Idirisu v. The State (1968) NMLR 88; Tulu v. Bauchi N.A. (1965) NMLR P. 343; Onafowokan v. The State (1987) 7 SCNJ 233; Adeaje v. The state (1979) 6-9 S.C.19; Ali and ors v. State (1988) 1SCNJ 17; Section 36(5) of the 1999 Constitution; Uzo v. The Police (1972) S.C. 37; Okoro v. The State (1988) NWLR (pt 74) 255; Egu v. The State (1988) 2 NWLR (pt 78) 602: Section 140(3) (c) Evidence Act. Section 36(8) and (12) of the 1999 Constitution; Aoko v. Fagbemi (1963) 1 All NLR 400; A.G.F. v. Dr Clement Isong (1986) 1 QLRN 86 Section 36 (11) of the 1999 Constitution; Sugh v. The State (1988) 2 NWLR 475: Section 36(10) of the 1999 Constitution; Nafiu Rabiu v. The State (1980) 2 NCR 17; Section 221 of the Criminal Procedure Act. Section 36(4) of the 1999 Constitution; Abarshi v. Commissioner of Police (2005) 1 NCC p. 545 @ 552-553. Otapo v. Summonu (2006) 2.L.C. p.255 @ 287; Ex parte Olakunrin (1985)1 NWLR 652 @668. UNIVERSITY OF IBADAN LIBRARY ________________________________________ Criminal Armoury 153r part of the process o f adjudication in any civilized society. And it must be noted that the test o f fairness in an appeal proceedings must o f necessity differ from the test o f fairness in proceedings at the Court o f first instance. While in the Court o f first instance, the true test o f a fair hearing is the impression o f a reasonable person who was present at the trial, whether from his observation, justice has been done in the case. The true test o f fair hearing in the Court o f Appeal is whether having regards to the rules of Court and the law, justice has been done to the parties247 Therefore, what the Court is enjoined by the provisions of section 36 o f the 1999 Constitution to do, is to create a conducive atmosphere for the parties to exercise their right to fair hearing, by holding the scales o f justice fairly but firmly without fear or favour, affection or ill will. Having provided the required atmosphere the duty on the Court stops there. It then, becomes the choice of the party seeking to enforce his civil rights and obligations to utilize the opportunity so created. He cannot be compelled to do so. W here he decides to present his case in an acceptable mode and as required by the rules and substantive law, he would be heard. On the other hand, where he chooses not to present his case, he cannot later be heard to complain that he was not heard248 Conclusively, a breach o f right of fair hearing results in the nullity o f the proceedings249 247 Otapo v. Summonu (supra) @ 288. 248Bill Construction Ltd v. Imani Ltd (2006) 28 NSCQR p.l @ 12. 249 Adeosun v. Babalola (1972) 5. S.C 292; Mobil Oil v. Coker (1975) 3 S.C. 175. UNIVERSITY OF IBADAN LIBRARY ________________________________________ Criminal Armoury l^ackof Jurisdiction f urisdiction means the way which the Court will exercise the power to hear and determine the issue which fall w ithin its jurisdiction or as to the circum stances in which it w ill grant a particular kind o f re lief which it has jurisdiction to grant, including its settled practice to refuse to exercise such powers or to grant such relief in particular circum stances250 Jurisdiction defines the powers o f Courts to inquire into facts, apply the law, make a decision and declare judgm ent251 It is the law which confers the Court with jurisdiction, and not the parties before it. That means parties had no right and cannot confer jurisdiction which the Court is not invested by law252 The laws regulating the com m ission o f an offence and the penalties thereof in N igeria ranges from Crim inal Code Act, Penal Code, M oney-Laundering Act, Economic and Financial Crime Commission Act, Independent Corrupts Practices and other Related Offences Commission Act and other Acts/Laws in conjunction w ith the 1999 Constitution. It has therefore becom e a law that a Court o f law cannot exercise power(s) than that which it has under the applicable law(s) govern ing such offence(s) and where any Court tried an offence it has no power to try or give a penalty beyond what it could give under the law such act/exercise shall be declared ultra vire and devoid o f jurisdiction. 2511 Ogun State v. Coker (2003) I l l ' l l p. 263 - 264, 1,1 Pg 1-2 of 1 x-gal Armoury by Samuel A. Adeniji. 3a Engineering Enterprise v. Attorney - General (1985) NMLR (pt 1) pg 17 @ 22.__________ UNIVERSITY OF IBADAN LIBRARY ________________________________________ Criminal Armoury 155 It is also settled that jurisdiction can be raised at any stage o f the proceedings up to the final determ ination o f an appeal by the Highest Court o f the land. This is because it is an issue which goes to the root o f the m atter so as to sustain or nullify the order or decision already made. It is equally setded that the Judge/C ourt can also raise it suo motu at any stage.251 W hen a C ourts lacks ju risd iction it lacks the necessary com petence to try the case and that a defect in competence is fatal as to proceedings are null and void ab initio. H owever, it is well setded in several decided cases that a Court has jurisdiction to entertain a case if: (1) it is properly constituted as regard num ber and qualification o f m em bers o f the bench and no m em ber is disqualified for one reason or another. (2) The subject matter o f the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction and; (3) The case comes before die Court initiated by due process o f law and upon fulfillment o f any condition precedent to the exercise of jurisdiction.254 Therefore, where an appellate Court declares a criminal trial a nullity for procedural irregularity the Court is not bound to discharge the accused but may order a fresh trial. A criminal trial m ay be a nullity on one o f the following grounds: 1,1 Ogigie & ors v. A. I. Obiyan (1997) 10 SCNJ p.l at 16; Obikoya v. Registrar of Companies & anor (1975) 4 SC 31. 354 Akeredolu v. Atrunu (2004) 1 1'R p.161, @ 173 - 174, Achimugu v. C.O.P. (1989) 1 Cl.RN p. 308 @ 311-312. UNIVERSITY OF IBADAN LIBRARY Criminal Armoury (a) when the very foundation o f the trial, that is the charge or inform ation may be null and void; or (b) the trial Court m ay have no jurisdiction to try the offences; or (c) the trial m ay be rendered a nullity because o f some serious error or blunder committed by the judge or Tribunal in the course o f the trial.255 The Court has, held that where a Court tried an offender for an offence which it is not empowered to try the defect in the proceedings is not cured by Section 379 (c.) o f the Criminal Procedure Code which provides that proceedings are not to be set aside m erely on the ground that the Court has taken cognizance o f an offence o f w hich it is not em pow ered to take cognizance. O n the contrary by Section 380(h) o f the Crim inal Procedure Code, the proceedings are void.256 In the case o f Safiyyatu H ussaini Tudu v. A. G. Sokoto State257 where the accused was convicted for an offence which did not constitute an offence at the tim e o f its com m ission. The Sharia Court o f Appeal, Sokoto D ivision, Sokoto State held “with due respect to the submission before 255 Adeoye v. State (1999) 6 NWLR (pt 605) 74; Cassidy v. FR.N (2004) 8 FR p.88 @ 113; Anthony Okobi v. The State (1985) NMLR (pt 1) p. 50-51, Ratio 8-14; Regina v. Diyaolu (1955-56) WR.N.L.R. 30; Chanver Aba & anr v. C.O.P. (1962) N.N.L.R. 37. 256 James Gboruko & anr v. C.O.P. (1962) N.N.I..R. 17; A. Y. Odiai v. C.O.P. (1962) N.N.L.R. 9; R v. Iyara (1941) 7 WACA 30. 257 (2003) 6 FR p.106 @ 141-143 UNIVERSITY OF IBADAN LIBRARY Criminal Armoury 1 5 7 us that even if the appellant Safiyyatu com m itted the said offence, it was com m itted before the law establish ing Sharia Court was prom ulgated ... It is m andatory on us to agree that U pper Sharia Court G wadabawa lacks jurisdiction to pass judgm ent o f stoning to death even if the offence has been found on her because when the offence was comm itted it was com m itted before the prom ulgation o f the law o f stoning at that time. A nd we found that this-condition o f Shari’a is laid down in the 1999 Constitution o f the Federal Republic o f Nigeria, Section 36(12), it was under this provision that the said laws were promulgated in the year 2000.” UNIVERSITY OF IBADAN LIBRARY __ Criminal Armoury Non-Compliance with M andatory Statutory Provisions It is trite that any offender should be subject to the law o f the place where he offends — Debet quis juri subjacere ubi delinquit. This portends that for any person to be alleged o f the com m ission o f any offence(s), one o f the ingredients o f the law is that, such offence m ust be known to law o f the land where the offence is allegedly committed. Proceeding to the prosecution o f the offender for the offence com m itted, there are procedures which had been laid down in law for the players in this game o f Crim inal proceeding to comply w ith at each step o f the proceedings. Such steps comm ence from the period o f issuing a warrant o f arrest, apprehending tire suspect, conduct o f the investigation, taking o f evidence, arraignment, plea taking, bail process, trial proper etc. Any o f the above steps should be taken in strict com pliance w ith the appropriate laws like the Constitution, Crim inal Procedure A ct and Code, Crim inal Code Act, Penal Code and any other law(s) in that respect. These steps constitute the condition precedent to the invocation o f Court’s jurisdiction in crim inal adjudication. Condition precedent provides for certain steps to be taken before the prosecutor is entitled to charge a suspect to Court o f competent jurisdiction. UNIVERSITY OF IBADAN LIBRARY Criminal Armoury The steps m entioned above are m andatory statutory provisions and not discretionary part o f such m andatory provisions are those steps contained in Section 36 o f the 1999 Constitution which ranges from right to legal practitioner o f one’s choice or right o f the accused/suspect to defend himself, right to silence, right to be presumed innocent until the suspect has been proved guilty etc.258 H owever, when it comes to bringing o f charge(s) or laying o f inform ation against the suspect, the procedure had been specified in the la\v and they are always m andatory259 Also taking o f plea o f the suspect is m andatory260 M oreso, w hen the procedure for proper arrangem ent o f an accused person is not followed, which is m andatory also and not discretionary, is fatal to the proceedings261 It should not be forgotten that apart from the above provisions there are still others in our criminal laws and criminal procedure laws. Also, it should be noted that the onus is on the accused person, having asserted that the prosecution either that it was w rong or not duly and completely com ply with the laid down procedure, to show what ought to be done or how it has been laid down under the law to be done262 58 Akpojotor v. C.O.P. (1989) 1 CLRN p.258 @ 265 - 266. 259 Okosun v. State (1979) 3-4 S.C. 36 2611 Salami Olonje & ors v. I.G.P. (1955 - 56) WRNLR 1; Adeyemi v. State (1989) 1 CLRN p.60 @ 65-66: Duval v. C.O.E 12 WACA 215; Elumelu v. Police (1957) NRNLR 17. 261 Kajubo v. State (1988) 1 NW1.R (pt 73) 721 @ 736-737. 262 Fawehinmi v. State (1989) 1 CLRN p.292, at 304; R v. Ijoma (1960) WN.L.R. 130 UNIVERSITY OF IBADAN LIBRARY ________________________________________ Criminal Armoury I, therefore hold a strong view that non-compliance with the m andatory statutory provisions in instituting crim inal proceedings would rob the Court o f its jurisdiction263 These do not call for a discretion on the part o f the Court. It m ust be said that any non-compliance w ith statutory provisions which is mandatory renders the proceedings void264 The resultant effect is that any proceedings conducted remains a nullity — as it is trite law that a defect in competence is not intrinsic but extrinsic to the adjudication265 W here the entire proceedings adopted by a trial Court has been declared a nullity by the appellate Court, which in effect means that the appellant has never been tried, the relevant consequential order having taken the evidence, the gravity o f the offence and the interest o f justice into consideration, w ill be one o f fresh trial266 The circumstances in which a trial may be declared null and void and which determine the attitude o f the appeal Court in either exercising its discretion to grant or refuse an order o f re-trial are:- 263 Zuru v. Naval Staff (2004) 7 FR p. 106 @ 116. 264 Maidawa v. First bank of Nigeria Pic & ors (1997) 4 NWLR (pt 500) 497 507; Achineku v. Ishagba (1988) 4 NWLR (pt 89) 411; Amadi v. N.N.P.C (2000) 10 NWLR (pt 674) 76 @ 97; Ifezue v. Mbadugha (1984) AH N.L.R. 256 @ 272. 265 Nworie v. A.G. Ogun State (2004) 4 FR p. 159 @ 175 - 176. 260 Omoteloye v. State (1989) 1 CLRN p. 142 @ 157; Kajubo v. State (supra). UNIVERSITY OF IBADAN LIBRARY Criminal Armoury (a) whether the foundation at the trial, charge or information is incurably bad; (b) the jurisdiction o f the trial Court; (c) whether the trial Court has com m itted some fundamental error or blunder in the conduct o f the trial which m ay render the w hole trial a nullity267 Furthermore, on the guiding principles which has been laid down in the locus classicus in Y e s u f u A b u d u n d u & o r s v. T h e Q u e e n 268 The Court held that for order o f retrial to be ordered the following has to be observed; (a) that there has been an error in law or an irregularity in procedure o f such a character, that, on the one hand the trial was not rendered a nullity and on the other hand the appellate Court was unable to say that there has been no m iscarriage o f justice. (b) that leaving aside the error or irregularity, the evidence taken as a whole discloses substantial case against the appellant. 267 Okoro v. Police 14 WACA 370; The Queen v. Azu Owoh & ors (1962) 1 All NLR (pt 4)659; OnuOkaforv. The State (1976) 5S.C. 13; R v. Shodtpo 12 WACA 374; Alphonsus Oruche v. C.O.P. (1963) 1 All NLR 262,266. Arisah & anr v. Police 12 WACA 297; Adisa v. A.G. Western Nigeria (1966) NMLR144; Nwafor Okegbu v. The State (1979) 11 S.C. 1; Zenvinula & 2 others v. Rex 12 WACA 68; Sele v. Eyorokoromo & another v. The State (1979) 6-9 S.C. 3,11; Queen v. Ogunremi (1961) All NLR 467. 2<,s (1959) 4 FSC 70 7 3 -7 4 . UNIVERSITY OF IBADAN LIBRARY Criminal Armoury (c) that there are no such special circumstances as would render it oppressive to put the appellant on trial a second time. (d) that the offence or offences o f which the appellant was convicted or the consequences to the appellant or any other person o f the conviction or acquittal of die appellant are not merely trivial. (e) that to refuse an order for a retrial would occasion a greater miscarriage o f justice than to grant it269 26