CRIMINAL PROCEDURE/LITIGATION

The basic principle of crime is punishment, however in other for the punishments to be enforced, there's the need to know how to conduct the legal procedure through a criminal litigation. the procedure is spelled out by the law, from the committing the offense, suing the accused, and instituting an action against an accused person.

A short but precise summary of Definition of criminal procedure, sources, Institution of criminal procedure, courts of criminal jurisdiction, ways of bringing an accused to court, bail, Arrest, Trial, Judgement and sentence

What is criminal procedure?

It is a law that governs the way of prosecuting, arresting, and trying a person who’s alleged to have committed a criminal offence.

SOURCES OF CRIMINAL PROCEDURE.

Here the sources are classified into two, they are;

1. Primary sources:

Such as the Criminal Procedure Act (CPA which is applicable in the southern part of Nigeria) and the Criminal Procedure Code (CPC, which is applicable in the north.

2. Secondary sources: the secondary sources include;

• The constitution E.g (CFRN 1999)

• English High court Procedure and practice in criminal matters.

• Judicial Decisions (Case law).

INSTITUTION OF CRIMINAL PROCEEDINGS

This constitute persons who can institute a criminal proceeding and how a criminal proceeding may be instituted. Persons who can institute a criminal proceeding are;

1. A.G: Attorney General of the Federation can institute, undertake, or discontinue any Criminal Proceedings in any court except court martial. See sections 174, 211, of the CFRN.

2. Police Prosecutors: The police by virtue of the police act section 4 and 23, the police can investigate and prosecute a person who is alleged to have committed a criminal offence. The police can institute a criminal proceeding before any court in Nigeria. See the case of OSAHON Vs FRN.

3. Private persons: Any private person can institute a criminal proceeding against a person who is suspected to have committed a criminal offence by lying a complain before the court of law, see section 59 C.P.A.

4. Special Persons: A special person is any person who is stipulated by the law creating an offence to institute criminal proceedings in respect of such offence. For example, Section 157 of CEMA, only the AG can institute criminal proceedings against offences stipulated therein.

COURTS WITH CRIMINAL JURISDICTION

Jurisdiction is the power of court to hear and determine a matter brought before it, any court that lacks jurisdiction of any matter cannot try such matter. Even if it does, then the trial shall be invalid, null and void “ab initio” Generally, courts of criminal jurisdiction are divided into two, namely;

1. COURTS OF SPECIAL JURISDICTION: These are courts set up to try specific or particular classes of offences or offenders, e.g Juvenile court, court martial, and coroner court.

2. COURTS OF GENERAL CRIMINAL JURISDICTION: These courts are divided into two, they are;

· Court of original jurisdiction:

These are courts that criminal proceedings can be commenced at the first

Instance. E.g Magistrate court.

• Court of Appellate Jurisdiction: These are courts that has criminal jurisdiction, but can only try or exercise such jurisdictions on appeal.

WAYS OF ARRAIGNING AN ACCUSED PERSON BEFORE THE COURT.

A person may be arraigned before a court of law if he is suspected to have committed a criminal or civil offence, the ways which a person may be arraigned are;

1. SUMMONS; A magistrate may issue a summon to compel the appearance of an accused person before the court. A summon can be served to the person named in the summon personally, but where he is not around, a copy of the summons may be left with an adult member of the accused person’s family or a neighbor. See section 52 CPC.

2. ARREST: This is a legal deprivation of the liberty and right to free movement by an act of another. The appearance of a person before a court of law can be secured by means of arrest. Arrest can be with or without warrant.

i. Arrest with warrant: When an authority is given by a court of law to arrest.

ii. Arrest without warrant: A person alleged to have committed a criminal offence may be arrested without warrant.

Who can arrest without warrant?

1. Police officers- section 26 CPC

2. Judicial officers- section 29 CPC

3. Private persons: A private person can arrest where he reasonably suspects any person committing felony or a misdemeanor in his presence or suspecting him of committing a serious crime.

BAIL

This simply means an agreement between the court and the accused person who is being tried, or between the court and the accused person’s sureties, that the accused will keep in the hands of court a certain amount of money fixed by the court, some valued documents such as Land properties, house property, e.t.c for him to be released and appear to stand trial or continue trial on a specified date. However, if a person is admitted bail and jumped the bail, the court is at discretion to revoke the bail.

Note: that bail under Nigerian law is free, the amount or property the accused provided for the court is just to make sure such person will appear again in the court as the fixed date specified by the court and if such person violate any term of the bail, the court is at liberty to hold the amount or property provided by the accused, and the court may order the forfeiture of the bail bond.

CHARGE

A charge is a written statement of offence and the section of the offence (Statutory provision of law) which provided with the offence of which the accused is charged with.

CONTENTS OF CHARGE SHEET:

· Name and Address.

· Date and Time

· Place and Acts

· Victim

· Thing

· Result of the Action

· State of mind of the accused when committing the offence.

· Section and the law providing creating the offence and specifying the punishment for the offence.

RULES FOR DRAFTING A CHARGE:

• Rules against ambiguities; Sections 201 & 202 of the CPC

• Rules against duplicity; Sections 150 & 203 of CPA

• Rules against misjoinder; Section 221 of CPC

• Rules of offences: Sections 213 & 216 CPC.

TRIAL

Is a final extermination of evidence in a court of law to decide whether or not, a person accused is guilty or not.

PRILIMINARIES OF TRIAL: Before a trial is commenced, there are certain conditions to be fulfilled; those conditions are;

1. Publicity: Sections 36 (4) CFRN and 225 CPC

2. Presence of parties: the accused and the complainant/ plaintiff

3. Legal representation: Section 36 (6) (C) of the 1999 CFRN

4. Interpreter: section 36 (6) (e) (e) CFRN

5. Witnesses.

COMMENCEMENT OF TRIAL

Options open to the accused when a charge is read to him. He may Plead with any of the following pleas;

1. Plea for not guilty: The accused when pleaded not guilty, he is deemed to have put himself into or upon trial.

2. Plea to Competency of Jurisdiction: The accused may plead that the court has no jurisdiction to try him or the offence he committed and therefore asserting the court cannot try him.

3. Plea to defect of charge.

4. Plea for pardon: The accused person may plea for pardon if he can show that the president or governor in the state pardoned him as enshrined in section 36 (10) of The 1999 Constitution (as amended).

5. Plea of “Actre Fois Acquit” or conduct: If the accused can prove that he has been tried for the same offence either convicted or acquitted by any court, he will not be tried again. See section 36 (9) of the CFRN 1999 (as amended).

JUDGEMENT

Judgement means the final official decision of a court of justice at the conclusion of any trial.

CONTENTS OF A JUGEMENT;

1. The point of determination: whether or not in law, the accused committed the offence against him despite his age.

2. Decision of the Court: The court have to decide whether the prosecution proved his case beyond reasonable doubt or he have failed to establish his case. However, where the court is in doubt as to whether to decide in favor of the prosecution or defense, the doubt shall be in favor of the defendant (defense).

3. Reasons for decision: It is also one of the contents of a judgement, the judgement of the court must state the reasons upon which the decision is made.

SENTENCE; after the accused is tried and found guilty and convicted, the magistrate or judge must pass a sentence on him. Sentence passed must be according with the law or section creating the offence.

MODES OF CREATING INSTITUTING A CRIMINAL PROCEDURE

IN MAGISTRATE AND AREA COURT:

a) By laying a complaint before a magistrate: Section 77 and 48 of the CPA & Section 143 (d) and (2) of the CPC made provisions for this mode of commencement of criminal proceeding. Note that where the complainant made the complaint orally, it shall be reduced in writing by the magistrate or judge. Section 60 CPA.

b) By laying a first information report (FIR) i.e in north, before a magistrate: FIR is always filed by the police in the Northern Nigeria, when filed, it will then be read before the magistrate.

c) By preparing a Charge before the Magistrate: This is done by reading orally or by bringing the accused person arrested without warrant upon a charge filed by the police. This mode is applicable in the South.

IN THE HIGH COURT

Under the high court of the state, the method of instituting a criminal procedure in both the north and south are;

a) By filing an information (south): Information may be signed by AG or any of the officer in his department, with consent of the judge.

b) By Preparing a charge against an accuse person (North): Section 185 of the CPC provided that a consent of the judge must be obtained but where a judge refused to grant a consent to file an information or prepare a charge, such application can be taken to another judge of that high court. See Gali Vs State.