benchbook of best practices. - fcthighcourt.gov.ng · benchbook of best practices trial of criminal...
TRANSCRIPT
[1]
Benchbook of Best Practices
Trial of Criminal Cases
A joint project between the FCT High Court, US Department of Justice OPDAT and INL
2017
(Back Cover)
Printing provided by United States Department of Justice
Office of Overseas Prosecutorial Development Assistance and Training
United States Department of State
Bureau of International Narcotics and Law Enforcement Affairs
[2]
Printing provided by United States Department of Justice
Office of Overseas Prosecutorial Development Assistance and Training
United States Department of State
Bureau of International Narcotics and Law Enforcement Affairs
Office of Overseas Prosecutorial Development Assistance and Training
Bureau of International Narcotics and Law Enforcement Affairs
[3]
FOREWORD
This Book – “Judicial Bench Book” presents best practices that make for easy comprehension
of the guiding rules and principles for processing and trial of complex ECONOMIC AND
FINANCIAL CRIMES CASES in the Federal Capital Territory High Court, Magistrates and Area
Courts. Indeed, Courts of other jurisdictions, legal practitioners and academicians as well as
law students would find this Book of invaluable importance. It has covered some salient
provisions of the Administration of Criminal Justice Act (ACJA 2015) along with the Practice
Direction for the Administration of Criminal Justice in this Jurisdiction; and, properly embellished
with some best practices locally and internationally drawn. The very essence behind the book is
to enhance the integrity of Criminal Justice delivery by putting in place such mechanism that
can promote speedy disposal of cases which, will in turn increase public confidence regarding
not only access, but most significantly, the dispensation of justice.
The ‘User friendly nature of the language of the ‘Book’ due to its simplicity, has assumed an
enviable status of a working manual that offers a good companionship for those that are
desirous of enriching their skills for the purpose of their respective roles in the Administration of
Criminal Justice.
For this beautiful work, I must express my deep appreciation to Mr. Scott J. Thorley the
Resident Legal Advisor of the U.S. Department of Justice, United States Embassy, Abuja, for
partnering and agreeing to work along with the panel of Judges and Magistrates for the
purpose of putting it in place. It is an excellent piece that meets the standard of international
best practice. I am not surprised, the zeal and enthusiasm with which, he embraced the
programme could not have produced anything less than WORLD CLASS, and that is what we
have in the book, ‘JUDICIAL BENCHBOOK OF BEST PRACTICE’
To my brother Judges and Magistrates that constituted the panel which, assiduously handled
the assignment for the production of this Book, you have done proud to the Nigerian nation and
to me. It has always been my position that my source of strength as the Chief Judge FCT, High
Court, is the brotherhood I enjoy, on my own, I can do nothing.
May you therefore be immortalized by the imprinting and retention of your names within this
publication for posterity to know those who engaged in this selfless service to humanity.
I recommend this Book for all those who are desirous of expanding the frontiers of their skills in
the effective handling of their respective roles in the Administration of Criminal Justice.
________________________ Hon. Justice Ishaq Bello Chief Judge Federal Capital Territory High Court, Abuja.
[4]
To The Reader: This Judicial Benchbook of FCT Best Practices for Processing and Trial of Complex Economic and Financial Crimes is an effort to capture the wisdom and experience of Justices and Magistrates of the FCT High Court on behalf of the entire Court. With the growth in the number and complexity of corruption and financial crimes over the past several years, it was realized that newer Justices and Magistrates might benefit from the institutional knowledge and experience of seasoned colleagues. To that end, in the spring of 2017 FCT High Court Chief Judge Ishaq U. Bello appointed a panel of ten experienced and capable Magistrates and Justices to create a Benchbook that could be at the fingertips of FCT High Court Judges when problems emerge during the trial and hearing of financial crimes. Over nine months this dedicated group synthesized a variety of memoranda, directives, authorities and best practices in order to document the highest level of FCT High Court professional expertise. The Benchbook is designed to be a living ready-reference written by Nigerian Justices and Magistrates for their colleagues to be used during any stage of a judicial career. It is hoped that the publication, distribution and use of this Benchbook will continue to identify areas where procedures and practices can improve to make the Court’s work more efficient and effective. The beauty of a living document is that when better practices are highlighted, they can be documented and included as continual Benchbook revisions through the coming years. I wish to extend my personal appreciation to Chief Judge I.U. Bello for endorsing the Benchbook project, and for authorizing the participation of the Justices and Magistrates named below to engage deeply in identifying and documenting the FCT High Court’s best practices for the purpose of attacking financial crimes and corruption. I will always remember these outstanding colleagues for their dedication as they wrote, deliberated and debated every sentence, even every word, of the Benchbook. I will take from this experience lifelong admiration and gratitude for my FCT High Court colleagues. On behalf of all of us, we respectfully submit this Benchbook to the FCT High Court. Scott J. Thorley Resident Legal Advisor, U.S. Department of Justice United States Embassy, Abuja, Nigeria
[5]
Project Authors and Participants:
Chief Judge I.U. Bello Justice Salisu Garba Justice O.O. Goodluck Justice A.I. Kutigi Justice P.O. Affen Justice A.S. Adepoju Justice A.O. Ebong Magistrate A.O. Oyeyipo Magistrate Samuel Ebiye Khimi Idhiarhi Magistrate Mohammed Zubairu Magistrate Sadia Muazu Mayana
[6]
Index
Operations Index: Part Topic Page
1 PRELIMINARY CONSIDERATIONS 7
CONFLICTS OF INTEREST AND OCCASIONS REQUIRING RECUSAL OF TRIAL JUDGE AND PROSECUTOR
7
• Occasions Requiring Recusal of Trial Judge 7
• Conflicts of Interest and Recusal by Prosecutor 8
CRIMINAL PRETRIAL 9
• Initial Appearance 9
• Representation by Counsel 11
• Procedure for Removal Proceedings of Defendant from one Jurisdiction to Another
15
• Release on Bail or Detention Pending Trial 15
• Recognizance or Bond Forfeiture 19
2 ARRAIGNMENT AND PLEA 21
• Arraignment 21
• Arraignment of a Corporate Entity 22
• Plea 23
• Plea by Corporate Entity 25
• Amendment of Charge 26
3 THE TRIAL 27
• General 27
4 VISIT TO LOCUS IN QUO 33
5 ENSURING SPEEDY TRIAL 36
• General 36
• Balancing Interests of the Public and Accused: Speedy trial 36
• Other Principles Guiding Adjournments 39
6 DISCLOSURE ISSUES 41
• General 41
• Exculpatory Information required to be disclosed 43
• Impeachment Information required to be disclosed 43
7 THE ROLE OF THE COURT IN PLEA BARGAIN 45
8 CONTEMPT 47
• Nature of Contemptuous Conducts 47
• Caution to be observed in Contempt Proceedings 48
• Summary Contempt Procedure 48
• Summons and Handling Recalcitrant Witness 49
• Handling a Disruptive or Dangerous Defendant 52
9 ADMISSIBILITY 54
• General 54
• Co-Conspirator Statements 57
• Proof of Evidence of Conspiracy 58
• Confessional Statements and Trial within Trial 58
• Identification Testimony 60
10 ADDRESS IN COURT 62
• Opening Statement 62
• Final Arguments 62
[7]
• Permissible Contents of Closing Argument 62
11 PROBLEMS WITH MULTIPLE DEFENDANTS 65
• Severance of Defendants 65
12 REVOCATION OF PROBATION 67
13 EXCLUDING THE PUBLIC FROM COURT PROCEEDINGS 69
• Notice of Motion to Close the Court 70
• The Hearing 70
• Decision by the Court 71
• Findings and Order 71
14 ASSET FORFEITURE PROCEDURE 73
• General 73
• Interim forfeiture 76
• Freezing Order 83
• Final Forfeiture Order 84
• Forfeiture upon Conviction 84
• Forfeiture Upon Acquittal or Discharge 85
• Forfeiture without Conviction 85
• Under the ACJA 85
• Under the Advance Fee Fraud etc. Act 86
• Under the ICPC Act 88
15 CASE MANAGEMENT 90
• Case categorization 90
• Regular Coordination Meetings 90
• Judges or Magistrates Master Court Calendar 90
• FCT Case Statistics 91
[8]
PART 1PART 1PART 1PART 1
PRELIMINARY CONSIDERATIONS
CONFLICTS OF INTEREST AND OCCASIONS REQUIRING RECUSAL OF TRIAL
JUDGE AND PROSECUTOR
Occasions Requiring Recusal of Trial Judge
1. A Judge should disqualify himself where he has personal bias or prejudice concerning
a party or personal knowledge of the disputed facts. (Rule 12 CCJO).
2. A Judge should disqualify himself if he has served as a legal practitioner in respect of
the matter before him when he was in practice. (Rule 12 CCJO).
3. A Judge should disqualify himself if he has been a member of the law firm handling
the matter even though; he was not personally involved in the matter.
4. A Judge should disqualify himself where his financial or any other interest of himself,
spouse or child could be substantially affected by the outcome of the proceedings
(Rule 12 CCJO).
5. A Judge should disqualify himself if his close relative or member of his household
directly or indirectly has a financial interest in the outcome of the proceedings.
6. A Judge should disqualify himself if he or his spouse or any person related to either of
them or the spouse of such person is:
(a) a party to the proceedings or an officer, director or trustee of a party before him;
(b) acting as a legal practitioner in the proceedings; and
(c) to the Judge’s knowledge likely to be a witness in the matter (Rule 12 CCJO).
7. Where any occasion has arisen ordinarily requiring the recusal of the Judge, the Judge
must in open court inform the parties of this fact and may proceed with the trial only
if both parties agree that they continue to have confidence in the impartiality of the
court.
8. Notwithstanding (8) above, even if the parties agree with the continuation of the trial
by the Judge despite being notified of such occasions ordinarily requiring recusal, the
Judge must consider the impression likely to be created in the minds of the public as
to the court’s impartiality in continuing to preside over the trial.
[9]
9. Where a party in a criminal proceeding requests the presiding Judge to disqualify
himself on grounds of lack of confidence, such application must be put in the records
and if the Judge considers that there exists no occasion which ordinarily will require
his recusal he shall continue with the proceedings and record his decision as part of
the records of the court.
Conflicts of Interest and Recusal by Prosecutor
10. When an occasion of conflict requiring recusal by a prosecutor exists and is non-
waivable, or informed consent has not been obtained, the prosecutor should recuse
from further participation in the matter. The prosecution should not go forward until
a non-conflicted prosecutor, or an adequate waiver, is in place.
11. The prosecutor should not represent a defendant in criminal proceedings in which he
has previously participated.
12. The prosecutor should not participate in a matter in which the prosecutor previously
participated, personally and substantially, as a non-prosecutor, unless the appropriate
government office, and when necessary a former client, gives informed consent
confirmed in writing.
13. The prosecutor should not be involved in the prosecution of a former client. A
prosecutor who has formerly represented a client should not use information
obtained from that representation to the disadvantage of the former client.
14. The prosecutor should not negotiate for private employment with an accused or the
target of an investigation, in a matter in which the prosecutor is participating
personally and substantially, or with an attorney or agent for such accused or target.
15. The prosecutor should not permit the prosecutor’s professional judgment or
obligations to be affected by the prosecutor’s personal, political, financial, business,
property, or other interests or relationships. A prosecutor should not allow interests
in personal advancement or aggrandizement to affect judgments regarding what is in
the best interests of justice in any case.
16. The prosecutor should disclose to appropriate supervisory personnel any facts or
interests that could reasonably be viewed as raising a potential conflict of interest. If
it is determined that the prosecutor should nevertheless continue to act in the
matter, the prosecutor and supervisors should consider whether any disclosure to a
court or defence counsel should be made, and make such disclosure if appropriate.
[10]
17. The prosecutor should not participate in the prosecution of a person who the
prosecutor knows is represented by another lawyer with whom he has a current
relationship of parent, child, sibling, spouse or intimate associate without full
disclosure to the court.
18. A prosecutor who has a significant personal, political, financial, professional,
business, property, or other relationship with another lawyer should not participate
in the prosecution of a person who is represented by that other lawyer, unless the
relationship is disclosed to the prosecutor’s supervisor and supervisory approval is
given, or unless there is no other prosecutor who can be authorized to act in the
prosecutor’s stead. In the latter rare case, full disclosure should be made to the
defence and to the court.
19. The prosecutor should not recommend the services of particular defence counsel to
accused persons or witnesses in cases being handled by the prosecutor’s office. If
requested to make such a recommendation, the prosecutor should consider instead
referring the person to the public defender, or to a panel of available criminal defence
attorneys such as a bar association lawyer-referral service, or to the court. In the rare
case where a specific recommendation is made by the prosecutor, the
recommendation should be to an independent and competent attorney, and the
prosecutor should not make a referral that embodies, creates or is likely to create a
conflict of interest. A prosecutor should not comment negatively upon the reputation
or abilities of a defence counsel to an accused person or witness who is seeking
counsel in a case being handled by the prosecutor’s office.
20. The prosecutor should promptly report to a supervisor all misconduct allegations
made, publicly or privately, against the prosecutor. If a supervisor or Judge initially
determines that an allegation is serious enough to warrant official investigation,
reasonable measures, including possible recusal, should be instituted to ensure that
the prosecutor’s function is fairly and effectively carried out. A mere allegation of
misconduct is not a sufficient basis for prosecutorial recusal, and should not deter a
prosecutor from attending to the prosecutor’s duties.
CRIMINAL PRETRIAL
Initial Appearance
21. A Judge should ensure the defendant appears in court unrestrained and free of fetters
or any form of tether, unless restraint is necessary for purpose of safeguarding the
security of the defendant, the court or other court users and the public.
[11]
22. A Judge should take appearances from counsel, starting with the prosecution and
then the defence, and if present, any counsel appearing to watch proceedings for any
victim of the alleged offence.
23. If the arrest of the defendant was made without a warrant, a Judge should require
that a complaint or such other originating process for cognizance of the offence
before the court be prepared and filed.
24. Appointment, Duties and Responsibilities of the Court Regarding Interpreters and
Special Needs Providers:
(a) The court shall ascertain if the defendant sufficiently understands the language of
the court and does not suffer from any speech or hearing defect or other physical
defects or disabilities that impair his or her ability to understand the proceedings
or meaningfully participate in them.
(b) If the defendant does not understand the language of the court or suffers from
any of the above impairments, the court shall require the presence of a
competent and impartial interpreter in the language understood by the
defendant.
(c) Wherever the need for an interpreter arises, the court shall in the first instance
employ the service of a staff of the court to act as such an interpreter, and may
not employ a non-staff interpreter unless no staff of the court is competent to
perform the function of an interpreter for the purpose of those proceedings.
(d) The court shall ensure such interpreter is sworn or affirmed at each session of the
court unless he has earlier been sworn in the course of the same proceedings.
(e) Any doubts as to eligibility for interpreter services should be resolved in favour of
appointment of an interpreter.
(f) To assure the impartiality of the interpreter and avoid potential conflicts of
interest, the following circumstances should be considered in appointing an
interpreter:
(i) Whether the interpreter is employed by a business owned or controlled by a
party or a witness;
(ii) Whether the interpreter is a friend, a family member, or a household
member of a party or witness;
(iii) Whether the interpreter is a potential witness;
[12]
(iv) Whether the interpreter is a law enforcement officer;
(v) Whether the interpreter has a pecuniary or other interest in the outcome of
the case;
(vi) Whether the appointment of the interpreter would or would not serve to
protect a party’s rights or ensure the integrity of the proceedings;
(vii) Whether the interpreter does have, or may have, a perceived conflict of
interest; and
(viii) Whether the appointment of the interpreter creates an appearance of
impropriety.
25. If the defendant is a foreign national, regardless of immigration status, a Judge should
consider advising the defendant of the right to consular notification.
26. The court must satisfy itself through personal interrogation of the defendant that the
defendant has the requisite mental competence to stand his trial and to understand
the nature and consequences of the proceedings against him or her and to assist
properly in his or her defence.
27. The court shall conduct an inquiry regarding the competence of the defendant in the
foregoing contexts and must satisfy itself by a preponderance of evidence of the
defendant’s mental competence before continuing with the trial, provided that where
the court finds the defendant mentally incompetent by reason of insanity, the court
shall then invoke the provisions of Part 29 of the ACJA.
28. For protection of a complainant or the victim of the defendant’s alleged offence, the
court shall provide a victim waiting area separated from access by the defendant,
defendant’s relatives and defence witnesses. Where a separate waiting area is not
available or practical, the court shall provide other safeguards to minimize the
victim’s contact with the defendant, defendant’s relatives, and defence witnesses
during court proceedings.
Representation by Counsel
29. A Judge shall determine whether the defendant has had a reasonable opportunity to
consult with counsel (s 267 (2) ACJA). The court should allow further consultation
where needed.
30. A Judge shall inform the defendant of his right to be represented by counsel at every
stage of the proceedings by a counsel of his choice (s 36(6)(c) CFRN 1999 and s 349
[13]
(1)(a) ACJA) and enquire from him whether he wishes to engage his own counsel or
would like counsel to be engaged for him by way of legal aid (s 349(1)(b) ACJA).
31. Where the defendant is unrepresented by counsel, despite having been informed of
his right to counsel, the court may appoint counsel for him where the defendant is
qualified for counsel under the Legal Aid Council Act or other legislation. For this
purpose, the court may direct the Registrar of the court to communicate the need of
such appointment to the necessary person or body. The court may, for that purpose,
adjourn the proceedings to a later date.
32. Pursuant to the defendant exercising his right to elect whether to be represented
either by counsel of his choice or by a legal practitioner engaged under the legal aid
scheme, the defendant shall be provided with Form 9 in the First Schedule of the
ACJA for the purpose of expressing his choice, thereby enabling the engagement of
counsel (s 376(9)-(11) ACJA).
33. The court shall ensure that a defendant is represented by a counsel in capital offences
provided that where the defendant nevertheless refuses to be represented by counsel,
he shall be deemed to have elected to defend himself without prejudice to the validity
of the trial (ss 267 (4) and 349 ACJA).(Ogugu v. State (1994) 9 NWLR (Pt. 366) 1).
34. The defendant has a right of self-representation. Where the defendant chooses to
self-defend, the court must ensure that:
(i) The defendant is informed of all his rights under the CFRN 1999 as amended and
under the ACJA (s 349(6) ACJA);
(ii) The choice of self-representation was made knowingly and voluntarily;
(iii) The defendant clearly demonstrates and states on the records of the court that
the demand for self-representation was unequivocal;
(iv) It was made clear on the record that the defendant is fully aware of the hazards
and disadvantages of self-representation as well as the reduced prospects for the
success of his defence; and
(v) The court is satisfied that self-representation will not disrupt, unduly
inconvenience or burden the court (s 267 (3) ACJA).
35. In the event of any disputation as to representation, the defendant’s knowing and
voluntary choice shall prevail. The counsel chosen by a defendant must be qualified
[14]
to practice in the jurisdiction and there must be no conflict of interest concerns in his
representation of the defendant.
36. While a defendant has a constitutional right to retain an attorney of his choice, the
constitutional right to counsel of choice is not absolute; such right only applies to
defendants who retain counsel, not to indigent defendants for whom counsel is
appointed.(United States v Gonzalez-Lopez, 548 US 140, 144, 151 (2006)). However, on
showing good cause for substitution but at the discretion of the court, and if to do so
would not disrupt the judicial process, an indigent defendant who seeks substitution
of assigned counsel, may be allowed a substitution of counsel.
37. Where a counsel appearing for a defendant fails to appear on two consecutive
sessions of the court, the court shall enquire from the defendant if he wishes to
engage another legal practitioner of his choice. The court may for that purpose allow
him reasonable time but not exceeding thirty days to engage substitute counsel (s
349(3) ACJA).
38. Where the defendant fails, or is unable to secure a legal practitioner arranged by him
after a reasonable time, the court may direct that a legal practitioner be arranged by
way of legal aid to appear to represent the defendant (s 349(4) ACJA).
39. The court shall inform the defendant that if at any time he does not understand
something or have a question, he should consult his lawyer or ask the presiding
officer any questions.
40. Where more than one defendant are tried together:
(a) They may be defended by different counsel or by one counsel provided each
commonly represented counsel gives the court appropriate waivers of conflict.
(b) An attorney proposing to represent co-defendants should be required to assure
the court that there will be no conflict that could result in a lack of effective
assistance of counsel or other prejudice to any defendant.
(c) Where the defendants appear to the court to have different interests that may
clash such that the defence of one may prejudice the defence of another, the
court shall advise the defendants to be defended by separate counsel.
(d) Similarly, a lawyer shall not represent a client, and the court may so order (unless
waived by the defendant) if the representation of that client may be materially
limited by the lawyer’s responsibilities to another client or to a third person, or by
the lawyer’s own interests, unless:
[15]
(i) The lawyer reasonably believes the representation will not be adversely
affected; and
(ii) The client consents after consultation. When representation of multiple
clients in a single matter is undertaken, the consultation shall include
explanation of the implications of the common representation and the
advantages and risks involved.
(e) The defence counsel or prosecution counsel are always obliged to inform the
court of any unanticipated conflict of interest.
(f) Where the defendant wants to waive the right to separate counsel, the court
should obtain a clear, on-the-record oral waiver of the right to separate counsel
by him.
41. In a multi-defendant trial, if a codefendant’s attorney seeks to “stand in” when
defence counsel for another defendant is absent for a brief period, the judge must
determine on the record that the defendant knowingly and intelligently accepts
substitute counsel on those occasions.
42. Where a legal practitioner intends to disengage from a matter, he shall notify the
court and such notice shall be served on the court and all parties not less than three
days before the date fixed for hearing in the matter (s 349(8) ACJA).
43. A counsel may appear for nominal complainant or victim, as follows:
(a) Any person who was either the complainant or the victim of the offence being
tried or who has an interest in the trial to such an extent the court considers
sufficient, may, for that purpose procure legal representation, in order to
observe proceedings on his behalf.
(b) Such a Counsel for a nominal complainant, however, cannot directly prosecute
the case, or put in any objection to the course of the trial, unless he either
initiated the proceedings himself under some provisions permitted by the law or
showing that he has been delegated or has the permission of the appropriate
authority to prosecute the case.
(c) Notwithstanding (b) above, subject to the overall discretionary powers of the
court to determine adjournments, such counsel must be involved in and his
interest considered in determining adjournments.
[16]
Procedure for Removal of Defendant from One Jurisdiction to Another
44. Where a warrant of arrest is executed in the home jurisdiction in respect of a warrant
issued by a court in another jurisdiction, the suspect shall be taken before the court
within the division or district in which the arrest was made, unless the warrant was
endorsed with conditions which the suspect had met under s 45 of the ACJA,
whereupon he may be removed to the court of issue (s 46 ACJA).
45. If such a warrant of arrest was executed in the home jurisdiction and the suspect was
brought before the court within the division or district in which the arrest was made,
the court may, after making requisite inquiry:
(a) Direct the suspect to be removed to the court which issued the warrant upon
which he was arrested; or
(b) If the offence for which he was arrested is not one punishable with death, and the
suspect is ready and willing to give bail to the satisfaction of the court or there
are directions for security endorsed on the warrant which the suspect is willing to
meet or give, the court shall take bail or security, as the case may be, and shall
forward the recognizance, if such be entered into, to the court, which issued the
warrant (s 46 ACJA).
46. Where within a jurisdiction or district, a court before which a person charged with
having committed an offence is brought considers that the offence ought to be
properly inquired into or tried by another court or, in the opinion of the court, the
offence might more conveniently be inquired into or tried by another court, the court
shall, within a reasonable period not exceeding seven days, send the case and all
processes relating to the case to the head of court for re-assignment to that other
court. In the alternative, where appropriate, that court shall remand the suspect
charged in custody or require him to give security for his attendance before that
other court to answer the charges and to be dealt with accordingly (s 99 ACJA).
Release on Bail or Detention Pending Trial
47. A defendant may be released on bail on recognizance conditioned for his appearance
at every time and place to which, during the course of the proceedings, the hearing
may from time to time be adjourned, taking into account consideration as follows (s
173 (1) ACJA):
(a) Where the defendant was not represented by counsel, the court shall:
[17]
(i) Inquire from the prosecution whether the defendant was previously given
administrative or police bail before arraignment; where such bail was earlier
granted, unless some other adverse circumstances are shown to have
subsequently arisen, bail may be granted.
(ii) Inquire from the prosecution whether there is any objection to the court
admitting the defendant to bail.
(iii) Where no sufficient cause is shown by the prosecution, the court may admit
the defendant to bail (ss 158, 161, 162 and 163 ACJA).
(b) Where the defendant is represented by counsel, it shall be for such counsel to
initiate the application for such bail, without prejudice to the power of the court,
where it considers it necessary to preserve the rights and liberties of persons
accused, to call on such counsel and inquire whether making the application for
bail was not considered.
(c) While bail shall not be excessive, upon considering all the circumstances
regarding the defendant and the offence alleged, in admitting a defendant to bail,
where monetary bail is granted, it shall be fixed at a sum sufficient to be a
disincentive to the defendant or surety preferring to forfeit the bond rather than
the defendant standing his trial (s 165 (1) ACJA).
(d) Where the defendant is unable to satisfy such terms as may be imposed for his
release on bail, he shall be kept in an approved custody until such terms are
satisfied (ss 181 and 432 ACJA).
(e) In considering bail, the court may take into account the following factors:
(i) the nature and circumstances of the offence charged, including:
(a) whether the offence is a crime of violence or involves narcotics;
(b) the weight of the evidence against the accused.
(ii) the history and characteristics of the defendant, including:
(a) character, physical and mental condition, family ties, employment,
financial resources, length of residence in the community, community
ties, past conduct, history of drug or alcohol abuse, criminal history, and
record concerning appearances at court proceedings; and
[18]
(b) Whether, at the time of the current offence or arrest, the defendant was
on probation or parole or on release pending trial, sentencing, appeal, or
completion of sentence under federal, state, or local law.
(iii) The nature and seriousness of danger to any person or the community if the
defendant is released.
(iv) In a case involving domestic violence, stalking or violation of a protective
order, the court may give the alleged victim an opportunity to be heard
regarding the danger posed by the defendant.
(v) Where a secured bond or surety bond is being considered, the court may
inquire about the financial resources of the defendant or his surety and,
where appropriate, the sources of any property to be designated for potential
forfeiture or offered as collateral.
(vi) Where the above considerations weigh in favour of granting bail, the court
should not set a financial condition that the defendant cannot meet.
(f) Besides other conditions that the court may impose as reasonably necessary to
ensure the appearance of the defendant, and to ensure public safety, it may also
require the defendant (or his sureties, where appropriate) to do any of the
following, for which a recognizance may be entered (s 165 (1) ACJA):
(i) make reports to a court or agency as are specified by the court or the agency;
(ii) not use alcohol or illicitly use any controlled substance;
(iii) participate in a substance abuse testing or monitoring programme;
(iv) participate in a specified treatment programme for any physical or mental
condition, including substance abuse;
(v) comply with restrictions on personal associations, place of residence, place of
employment, or travel;
(vi) surrender title documents of assets with which bail is secured and cause
necessary caveats to be entered regarding the encumbrance;
(vii) surrender driver’s licence or international passport;
(viii) comply with a specified curfew;
(ix) continue to seek employment;
[19]
(x) continue or begin an educational programme;
(xi) remain in the custody of a responsible member of the community who agrees
to monitor the defendant and report any violation of any release condition to
the court;
(xii) not possess a firearm or other dangerous weapons;
(xiii) not enter specified premises or areas and not stalk, assault, beat, molest or
wound a named person or persons;
(xiv) Comply with any condition limiting or prohibiting contact with any other
named person or persons;
(xv) in a crime involving domestic violence, or any other assaultive crime, to wear
an electronic monitoring device; or
(xvi) comply with any other condition, including the requirement of money bail,
reasonably necessary to ensure the defendant’s appearance as required and
the safety of the public.
(g) When imposing conditions of release, the court shall:
(i) Explain the conditions of the bail to the defendant;
(ii) Explain to the defendant the consequences for defaulting in the conditions
for bail set by the court or indulging in any conduct inconsistent with the
bail.
(h) A Judge of the High Court of the FCT, in its supervisory jurisdiction, may direct
that the:
(i) bail conditions required by a Magistrate’s court or police officer be reviewed;
or
(ii) defendant in custody in a state or in the Federal Capital Territory, Abuja be
admitted to bail (s 168 ACJA).
(i) Where a High Court Judge has reversed a lower court’s decision on bail or has
reviewed, varied or modified the terms of bail granted by the lower court or has
admitted a person standing trial to bail in respect of the trial before the lower
court, such decision shall be forwarded to the lower court for enforcement.
[20]
(j) The court that admitted a defendant to bail may, where the circumstances appear
just, provided the Judge shall in his records state the reason for taking that course
of action:
(i) vary the order of release on bail of the defendant at any subsequent hearing;
and
(ii) may at any subsequent stage of any proceeding cause a defendant who has
been released on bail to be arrested and be committed to custody (s 173(2)
ACJA).
(k) All or any of the sureties may at any time apply to the court which caused the
recognizance to be taken to discharge the bond either wholly or so far as relates
to the applicant, and in that event:
(i) the court shall issue a warrant for the arrest of the defendant on whose behalf
the recognizance was executed; and
(ii) on the appearance of the defendant, the court shall discharge the
recognizance either wholly or so far as it relates to the applicant; and
(iii) the court shall thereafter require the defendant to find other sufficient
sureties or meet some other conditions and if he fails to do so, may make
such order as it considers fit, including keeping him in custody until he is
able to satisfy conditions upon which he was earlier given bail (s 177 ACJA).
Recognizance or Bond Forfeiture
48. Where a defendant who is bound by a recognizance or bond to appear before a court
does not so appear, the court may issue a warrant for his arrest in Form E (s 184
ACJA).
49. Upon a finding that a defendant has failed to comply with conditions of his release,
the court may, additionally to issuing a warrant for the arrest of the defendant, enter
an order revoking the release order and declare the bail money deposited or the
surety bond, if any, forfeited, unless cause is shown.
50. Upon issuing the bench warrant, the court should set a show cause date, notice of
which is to be served on the defendant (if practicable), the surety or anyone who
posted bond and the prosecutor with opportunity given to the surety to appear before
the court and show cause why the bond should not be forfeited.
[21]
51. On the appearance of the surety, the bond or recognizance representing the
undertaking made by the surety must be produced to the surety and to the court.
52. Where it is proved to the satisfaction of the court by which a recognizance has been
taken or, when the recognizance bond is for appearance before a court and it is
proved to the satisfaction of the court, that a recognizance has been forfeited, the
court shall record the grounds of proof and may call on any person bound by the
bond to pay the penalty thereof or to show cause why it should not be paid. (s 179 (1)
ACJA).
53. Where sufficient cause is not shown and the penalty is not paid, the court may
proceed to recover the penalty from a person bound or from his estate if he is dead, in
the manner laid down in the ACJA for the recovery of fines (179 (2) ACJA).
54. If the defendant does not within the period specified or a reasonable time after the
order to show cause was made, appear and satisfy the court that there was
compliance with the conditions of release other than appearance or that compliance
was impossible through no fault of the defendant, the court may continue the
revocation order and enter judgment for the State against the defendant alongside
the surety for the amount of the bond, and costs of the court proceedings.
55. Where a recognizance is ordered to be forfeited, the court having jurisdiction over
the matter may, immediately or at any time after the order, issue a warrant of
commitment against a person liable, whether as principal or surety under the
recognizance, for any term not exceeding the term prescribed in respect of a like sum
in the scale of imprisonment set out in this Act unless the amount due under the
recognizance is paid (s 183 ACJA).
56. The court may at its discretion remit any portion of the penalty and enforce payment
in part only (s 179 (5) ACJA).
57. Where a defendant jumps bail the surety may, with or without assistance, arrest or
detain the accused and deliver him to any to any law enforcement officer. In making
the arrest or detainment, the surety is entitled to the assistance of any law
enforcement officer.
[22]
PART 2PART 2PART 2PART 2
ARRAIGNMENT AND PLEA
Arraignment
58. At arraignment, the court should ensure the defendant is brought to court
unrestrained and unfettered, unless restraint is necessary for the purpose of
safeguarding the security of the defendant, the court or other court users and the
public.
59. A defendant shall be present in court during the whole of his trial unless:
(a) he misconducts himself in such a manner as to render his continuing presence
impracticable or undesirable; or
(b) at the hearing of an interlocutory application (s 266 ACJA); or
(c) the defendant has jumped bail and has failed to attend court without reasonable
explanations after two adjournments (s352(4) ACJA).
60. In a proceedings before a Magistrate in respect of which a summons has been served
on a defendant to appear where the penalty for the offence is a fine not exceeding
Ten Thousand Naira or imprisonment for a term not exceeding six months or both,
upon the application of the defendant, his presence:
(a) May be dispensed with where the offence is punishable by fine or imprisonment
or both; and
(b) Shall be dispensed with where the offence is punishable by fine only, if the
defendant pleads guilty in writing or appears and so pleads by his legal
practitioner.
Provided that at any subsequent stage of the proceedings, the court may direct the
personal attendance of the defendant and, where necessary, enforce the attendance
by the issuance of warrant of arrest to enforce his attendance before the court. (s 135
ACJA).
61. The court should ascertain if a charge or information has been properly brought
before the court.
62. The court should ascertain if it is the court or another court that has jurisdiction over
the alleged offence.
[23]
63. Where the offence is one for which a Magistrate court has jurisdiction to try, the
police shall file the charge at the Magistrate’s court, accompanied with:
(a) the list of witnesses and their addresses;
(b) the list of exhibits;
(c) statements of the witnesses and of the defendant; and
(d) any report, document or material that the prosecution intends to rely on at the
trial of the offence, but the prosecution may, with leave of the court, file and
serve any additional document (s 376(4) ACJA).
64. For the purposes of ascertaining whether it is expedient to deal with a case
summarily, either before or during the hearing of the case, a Magistrate may adjourn
the case and remand the person charged for a period not exceeding forty-eight hours
or release him on bail (s 372 ACJA).
65. The court shall ascertain if the defendant has been served a copy of the charge or
information (or in the Magistrates Court where the defendant was brought upon a
First Information Report, ascertain if the contents thereof have been made known to
him in the court’s ruling pursuant to s 112(10) ACJA).
66. The court shall ascertain from the defendant whether he has counsel, or would
require time to procure one.
67. The court shall ascertain from defendant whether he understands the language of the
court and if he does not, the court shall procure a competent interpreter in the
language understood by the defendant who shall be sworn.
68. The court shall cause the charge or information to be read to the defendant and
ascertain that it was understood by him.
Arraignment of a Corporate Entity
69. The provisions of the ACJA relating to the inquiry into and trial of offences shall
apply to a corporation in the same manner as they apply to an adult person (s 484
ACJA).
[24]
Plea
70. Before a defendant takes his plea, where there is no legal practitioner representating
him, the court shall inform him of his rights under the provisions of ss 267 and 349 of
the ACJA with respect to legal representation.
71. The defendant shall, for the purpose of taking his plea, enter into the dock unless
otherwise directed by the court (s 269 ACJA) and would be unfettered unless the
court sees cause otherwise to so order (s 271(2)(b) ACJA).
72. The court shall cause the information or charge to be read over and explained to the
defendant to the satisfaction of the court by the registrar or other officer of the court
(s 271 (2)(a) ACJA).
73. The court shall call upon the defendant to answer to the charge or information by
either pleading guilty or not guilty (or showing cause if brought upon a First
Information Report in the Magistrate Court) (ss 112(8), 274 and 356(1) ACJA).
74. The process shall be repeated for as many counts of offences as may be contained in
the charge or information.
75. Where the defendant pleads not guilty (or professes to have cause to show) the plea
or response of the defendant shall be recorded by the court in the exact words used or
as close as possible to the words used by him and the court shall thereafter consider
bail and subsequently proceed to hearing or fix a date for the hearing.
76. Where the defendant, when called upon to plead remains silent or refuses to answer:
(a) The court shall enter a plea of not guilty on his behalf which shall have the same
effect as if the defendant actually pleaded to the charge.
(b) The court may inquire into the mental state of the defendant, and if the court is
satisfied that the defendant is of sound mind, the court shall proceed with his
trial.
(c) Where the court finds that the defendant is of unsound mind, the provisions of
Part 29 of the ACJA in relation to persons of unsound mind shall apply (s 276
ACJA).
77. Where the defendant, when called upon to plead, pleads that he is not liable to be
tried for the said offence by reason of a previous conviction or acquittal for that same
offence or that he has obtained a pardon for that offence or that by reason of some
[25]
other provisions of law he is not liable to be prosecuted or tried for an offence with
which he was charged:
(a) The court shall determine whether such plea is true in fact or not, making
recourse to Part XIII of the Evidence Act (s 272 ACJA).
(b) Where the court holds that the facts alleged by the defendant do not prove the
plea, or where it finds that it is false in fact, the defendant shall be required to
plead to the charge or information, and should he decline, the court shall enter a
plea of not guilty as if the defendant remained silent when he was of a sound
mind (s 277 ACJA).
78. Where the defendant pleads guilty to the charge:
(a) For capital offences, the court shall enter a plea of not guilty (s 274(3) ACJA).
(b) For offences other than capital offences:
(i) The court shall have the prosecuting counsel make a representation
concerning the facts the State would be prepared to prove at trial (to
establish an independent factual basis for the plea) accommodating the
elements of the offence or offences admitted (274 (1)(b) ACJA).
(ii) If the court is satisfied with the responses given during the hearing and it is
clear that the defendant intends to admit the truth of all the essential
elements of the offence for which he has pleaded guilty, and after the court
has determined that the defendant is competent, that the guilty plea is
knowing and voluntary, and that evidence exists to prove the essential
elements of the crime admitted, the court shall convict him or make such
order as may be necessary, unless there shall appear sufficient reason to the
contrary, and for that reason, the court may make the following finding on
the record: “It is the finding of the court in the case of The States v. ______ that
the defendant is fully competent and capable of entering an informed plea, that
the defendant is aware of the nature of the charges and the consequences of the
plea, and that the plea of guilty is a knowing and voluntary plea supported by
an independent basis in fact containing each of the essential elements of the
offence. The plea is therefore accepted, and the defendant is now adjudged
guilty of that offence”.(see also s 356(2) ACJA).
(iii) If the court is not satisfied that, despite the defendant’s plea of guilt, the
explanation offered on the facts do not establish the essential elements of the
[26]
offence alleged, it may enter on the records a plea of not guilty or that cause
have been shown for the trial to proceed.
Plea by Corporate Entity
79. Before accepting a plea of guilty or not guilty (or as having cause to show) from the
representative of an organization, the court should be satisfied that:
(a) The person appearing before the court is a person duly appointed by the
corporation to represent it for the purpose of doing any act or thing which the
representative of a corporation is by Part 47 of the ACJA authorized to do; and
(b) There is before the court a statement in writing purporting to be signed by the
managing director of the corporation, or by any person (by whatever name
called) having, or being one of the persons having, the management of the affairs
of the corporation, to the effect that the person named in the statement has been
appointed and authorized to act as the representative of the corporation.
80. After the court receives the information set out above and ascertains that the plea can
be taken from the person before the court, the representative should be informed of
the following:
(a) the nature of the charge(s) to which the plea is required;
(b) the right to be represented by an attorney, if they so desire; and
(c) that the organization has the right to plead not guilty.
81. A representative may, on behalf of a corporation:
(a) state whether the corporation is ready to be tried on a charge or information or
altered charge or information to which the corporation has been called on to
plead;
(b) consent to the hearing and determination of a complaint before the return date
of a summons;
(c) express assent to the trial of the corporation on information, notwithstanding
that a copy of the information and notice of trial have not been served on the
corporation three days or more before the date on which the corporation is to be
tried (s 481 ACJA).
[27]
82. Where a corporation is called upon to plead to any charge or information (including a
new charge or information framed under the provisions of the ACJA or charge or
information added to or altered under the provisions of ACJA, the corporation by its
representative may enter in writing a plea of guilty or not guilty or any plea which
may be entered under the ACJA (s 478).
83. Should the corporate representative plead guilty to the charge, unless the court
choses to sentence the convicted corporate body immediately, the court should
advise the representative of the date, time and place of the sentencing hearing, and
order him to appear.
84. Where the corporation either does not appear by a representative or, though it does
so appear, fails to enter any plea as required, the court shall order a plea of not guilty
to be entered and the trial shall proceed as though the corporation had duly entered
a plea of not guilty (s 478 ACJA).
Amendment of Charge
85. Where a new charge is framed or an existing charge is amended, altered or added to
at any time before judgment, the defendant having previously pleaded to the charge
before such amended charge, the court shall call on the defendant to plead to the
new or altered charge as if it were the original charge (s 217 ACJA).
[28]
PART 3PART 3PART 3PART 3
THE TRIAL
General
86. The court shall have the case called for trial and cause the defendant to enter into the
dock to stand in or sit in it except where circumstances require otherwise (s 269
ACJA).
87. Where a matter was commenced by way of a complaint in pursuance of which
summons was served on the defendant and the defendant appears voluntarily to the
summons or is brought before the court under a warrant, but the complainant who,
to the satisfaction of the court, had due notice of the time and place of hearing, does
not appear in person or in the manner authorized by a written law, the court may
dismiss the complaint, unless a reasonable excuse or some other sufficient reason was
given for the non-appearance of the complainant or his representative (s 351 ACJA).
88. Where a case is called in which summons has been issued and the defendant does not
appear and has neither acted under the provisions of s 135 of the ACJA and no
sufficient excuse is offered for his absence, then the court, upon being satisfied that
the summons has been duly served, may issue a bench warrant for his arrest. Where
there is no satisfactory proof that the summons has been duly served or where a
warrant is issued arising from the absence of the defendant, the court shall adjourn
the hearing of the case in order that proper service may be effected or, until the
defendant is arrested (s 352 ACJA).
89. Where the case is called and neither the prosecutor nor the defendant appears, or the
defendant appears and the prosecutor does not appear, the court shall make such
order as the justice of the case requires, including such direction as to the payment of
costs as the court considers fit (s 353 ACJA).
90. Where the defendant is present in court and he has pleaded not guilty to the charge
against him, when a witness is called upon to testify, other witnesses scheduled to
testify in the case shall be excluded from the courtroom except the defendant (s
356(3) ACJA and s 212 Evidence Act).
91. Any objection to the validity of the charge or information made by the defendant
shall not be separately taken as a preliminary issue but shall be considered along with
the substantive issues and a ruling thereon made at the time of delivery of judgment
(s 396(2) ACJA).
[29]
92. The prosecuting counsel will make an opening statement, unless he chooses to waive
(s 300 ACJA). Opening statement is simply an outline to help the court understand
the evidence as it comes in. Notably:
(a) The court may impose reasonable time limits on opening statements.
(b) In the absence of bad faith, it is not error when the prosecutor fails to prove the
assertions made during opening statements.
(c) It is improper for a prosecutor to appeal to the court’s sympathy or make
prejudicial or inflammatory remarks during opening statements.
93. The prosecuting counsel then calls his witnesses, paying regard that, if there may be
testimony by child victims or child witnesses, Judges should be aware of the special
procedures and safeguards that may apply.
94. The court should afford child victim-witnesses, victim-witnesses with developmental
disabilities, and “vulnerable adult” victim-witnesses, etc., special protections in
prosecutions and proceedings involving certain offenses, by measures such as:
(a) The use of dolls or mannequins;
(b) The presence of a support person;
(c) The exclusion of all unnecessary persons from the courtroom;
(d) The placement of the defendant as far from the witness stand as is reasonable;
(e) The use of a podium, screens, masks, special clothing;
(f) The use of video-recorded statements or closed-circuit television in presenting
the victim-witness’s testimony;
(g) Any other measure as the court may consider appropriate in the circumstance (s
232 ACJA).
95. The court shall exercise reasonable control over the mode and order of interrogating
witnesses and presenting evidence so as to:
(a) make the interrogation and presentation effective for the ascertainment of the
truth;
(b) avoid needless consumption of time; and
(c) protect witnesses from harassment or undue embarrassment.
[30]
96. The court shall exercise reasonable control over the appearance of parties and
witnesses so as to:
(a) ensure that the demeanour of such persons may be observed and assessed by the
fact-finder; and
(b) ensure the accurate identification of such persons.
97. Following presentation of its case, the State rests its case.
98. At any time before a final order is made, if a complainant satisfies the court that there
are sufficient grounds for permitting him to withdraw his complaint, where the
interests of justice require, the court may permit him to withdraw the complaint and
shall thereupon acquit the defendant (s 355 ACJA).
99. In a case where a charge of an indictable offence is being proceeded with summarily
by a Magistrate, a law officer may, at any time before judgment, request the
Magistrate to deal with the case as one for trial on information, whereupon the
Magistrate shall adjourn the proceeding until such a time as a corresponding
information or charge is filed in the High court. The information shall be filed within
a period of thirty days of the date the order granting the request was made and on
default to so file within thirty-two days, the Magistrate may proceed to try the offence
summarily (s 374 ACJA).
100. After hearing the evidence for the prosecution, on its own motion or on the
application of any defendant, where the court considers that the evidence against the
defendant or any of several defendants is not sufficient to justify the continuation of
the trial, it may record a finding of not guilty in respect of the defendant without
calling on him or them to enter his or their defence. That defendant shall accordingly
be discharged while the court shall then call on the remaining defendant(s), if any, to
enter his defence (s 302 ACJA).
101. Defence counsel makes an opening statement (unless counsel asked to reserve) (s 301
ACJA).
102. The defence may:
(a) Submit that ‘No case to answer’ or no prima facie case was made out, to which
the prosecution may make a reply (s 303 ACJA). In this case, the court shall rule
on whether or not a prima facie case was made out by the prosecution. Where
the court find that a case is not made out against the defendant sufficient to
[31]
require him to make a defence, the court shall, as to that particular charge,
discharge him (s 357 ACJA). In ruling, the court may consider:
(i) whether an essential element of the offence has not been proved;
(ii) whether there is no evidence linking the defendant with the commission of
the offence with which he is charged;
(iii) whether the evidence so far led is such that no reasonable court or tribunal
would convict on it; and
(iv) any other ground on which the court may find that a prima facie case has
not been made out against the defendant for him to be called upon to
answer (s 302 ACJA).
(b) Rest its case on the case of the State, in which case the court shall give a final
judgment adjudging the defendant guilty or not guilty.
103. Where the court rules against a ‘no case to answer’ submission, or no argument for
‘no case to answer’ was made by the defence, then:
(a) The defendant shall be called upon to proceed with his defence. Where the
defendant is not represented by a legal practitioner, the court shall inform him
of the alternatives or options available to him, namely, that the defendant may:
(i) make a statement, without being sworn, from the place where he then is, in
which case he will not be liable to cross-examination; or
(ii) give evidence in the witness box, after being sworn as a witness, in which case
he will be liable to cross-examination; or
(iii) call any witness or adduce any other evidence in his defence, with the court
exercising the same controls as it did when the prosecution called their
witnesses (s 358 ACJA).
(b) The defence rests its case.
104. Where the defendant has called any witness(s) or given any evidence (s 356(5)(c)
ACJA) or the defendant had adduced in his evidence any new matter which the
prosecution could not have foreseen (s 361 ACJA) and thereafter rested the defence’s
case, where the court finds it fit, the prosecutor may call additional witness or present
evidence in reply.
[32]
105. Order of closing arguments:
(a) Where both parties called evidence, the defendant shall address the court first
followed by the prosecution, thereafter the defendant may reply on points of law.
(b) Where the defence has called no witnesses other than the defendant himself or
has called witnesses solely as to character of the defendant and no document is
put in as evidence for the defence, the prosecution shall not be entitled to
address the court a second time. However, where in opening the case for the
defence, the defence counsel introduces a new matter without supporting it by
evidence the court, in its discretion may allow the prosecution to reply.
(c) Where any witness, other than the defendant himself or witnesses solely as to the
defendant’s character has been called or any document is put in as evidence for
the defence, the defendant is entitled after evidence has been adduced to address
the court a second time on the whole case and the prosecution shall have a right
of reply (s 304 ACJA).
106. The court in giving its verdict, shall take into account the following:
(a) Rule on the merit of any objection to the validity of the charge or information
which shall have been made by the defendant at the commencement or in the
course of the trial (s 396(2) ACJA).
(b) Give its decision on the case either by dismissing or convicting the defendant and
may make such other orders as may seem just (s 368 ACJA).
(c) Return a finding of guilt or not guilty on every count of the charge.
(d) State its specific findings of fact in open court (s 307(2) ACJA) by way of a written
decision, which must contain:
(i) the point or points for determination;
(ii) the decision and the reasons for the decision;
(iii) the date when it was pronounced; and
(iv) the signature of the Judge or Magistrate (s 308 ACJA).
(e) Where the Judge or Magistrate who tried a case is prevented by unavoidable
cause from delivering his judgment or sentence, where it has been reduced into
writing and signed by the Judge or Magistrate, the judgment or sentence may be
[33]
delivered and pronounced in open court by any other Judge or Magistrate in the
presence of the defendant(s) (s 315 ACJA).
(f) Where the court’s verdict is a verdict of not guilty, the court shall discharge and
acquit the defendant(s) (s 309 ACJA).
(g) Where the court’s decision is a verdict of guilty, the court should proceed:
(i) To convict the defendant(s) provided the requirements of s310 ACJA are
complied with, and adjourn for sentence hearing, where it is to be heard
separately (s 311(1) ACJA).
(ii) To decide whether to commit the convict to custody pending sentence or to
release him on bail pending sentence.
(iii) Where the court desires to proceed immediately with sentence, or at any
subsequent day on which it holds a sentence hearing, the court shall:
(a) Hear any plea in mitigation of sentence.
(b) Hear evidence to character, if the convict had not previously called any
witness to character in the course of the trial.
(c) Hear any evidence of previous conviction from the prosecution (s 310
ACJA).
(d) Take any application for compensation, restitution or forfeiture or any
other like application.
107. In considering whether or not to release a convict on bail pending sentence, the
following factors may be considered:
(a) Where the defendant was in custody at the time of conviction, there will
ordinarily be no question of release after conviction pending sentence.
(b) A person may be released while awaiting imposition of sentence only if the judge
finds by clear and convincing evidence that the person is not likely to flee or pose
a danger to the safety of any other person or the community. The burden of
establishing that the defendant will not flee or pose a danger to any other person
or to the community rests with the defendant.
[34]
Part 4Part 4Part 4Part 4
VISIT TO LOCUS IN QUO
108. Where it appears to the court that in the interest of justice, the court should have a
view of any place, person or thing connected with the case, the court may, where the
view relates to a place, either:
(a) adjourn the court to that place and there continue the proceedings; or
(b) adjourn the case and proceed to view the place, person or thing concerned (s
263(1) ACJA and s 127(2) Evidence Act).
109. The defendant shall be present at the view of the place, person or thing concerned (s
263(2) ACJA).
110. At the locus, the court shall give directions as it may deem fit for the purpose of
preventing communication between the witnesses and the defendant though a
breach in giving such directions or enforcing compliance with them shall not affect
the validity of the proceedings unless the court otherwise directs (s 263(3) and (4)
ACJA).
111. Where the court adjourned to the locus in quo and continued the proceedings, the
proceedings shall continue as if the court is merely resuming another session and
there may be no need to have previously discharged witnesses to testify.
112. Where the court adjourns the case and proceeds to merely view the place, person or
thing concerned, the following procedure may be observed:
(a) Where at the time the court embarks on the visit to the locus all the parties as
well as their witnesses have testified and the sole purpose of the inspection is to
clear doubt as to the accuracy of the pieces of evidence at the locus, there would
be no need for oath taking or cross-examination with regard to the proceedings
at the locus in quo.
(b) Any material statement made in the course of the visit must be recorded and the
opposing party given an opportunity of testing that statement, if need be, by
cross-examination, if not at the locus, subsequently in the court (Yakubu v.
Adamawa State Urban Planning and Development Authority & Ors (2013) LPELR-
22077(CA)).
(c) During the visit to a locus in quo:
[35]
(i) The court shall be accompanied by the accused and his advocate and the
advocate for the State and such witness or witnesses for the prosecution and
for the defence as may be deemed material to proceedings at the locus.
(ii) The witnesses are to point out such place(s) and things as are material to the
case.
(iii) The court then reassembles and the witnesses who pointed out place(s) and
things during the visit are put into the witness box and on oath, to testify on
what part they took in the visit to the locus and what they each did.
(iv) The defence or the State as the case may be, are then given opportunity of
cross examination (Imhandra v. Nigerian Army (2007) 14 NWLR (Pt. 1053) 76
at (CA)).
(d) Witnesses are expected to give explanation of evidence already given only if so
asked by the Judge. If any fresh evidence is to be received, it must be on oath and
be open to cross-examination (Enigwe & Ors. v. Akaigwe & Ors. (1992) 2 NWLR
(Pt. 225) 505).
113. The decision whether or not to visit the locus in quo is within the discretion of the
Court, but in exercising that discretion, it must be guided by the following
considerations:
(a) It is a course which the Judge can initiate only with due caution (Anyanwu v.
Mbara (1992) 6 SCNJ 90).
(b) It is better for one of the parties to apply for the visit to locus rather than the
court.
(c) If the visit to the locus is at the instance of the court, it will be advisable to obtain
the consent or acquiescence of the parties (Ugongene & Ors. v. Igwebuike & Ors.
(2016) LPELR-41011(CA)).
(d) Visit to the locus in quo may be advised where there are two conflicting items of
evidence and it is necessary to visit the locus in quo for the resolution of such
conflict by visual observation (Okunrinmeta & Ors. v. Agitan (2002) 2 NWLR (Pt.
752) 565).
114. While a visit to locus may take place at any stage, even if the judgment in the case
have been reserved:
[36]
(a) The usual procedure, when a court wants to exercise its power of inspection by a
visit to a locus in quo is to carry out the inspection before the close of the case for
both parties.
(b) It is similarly better to visit the scene of an offence as early as possible and
preferably in the course of the evidence for the prosecution if a visit should
appear to a Judge to be needed for the better understanding of that evidence or of
the case for the defence as indicated in the cross-examination (Aremu v. Att. Gen.
of Western Nigeria (1967) NMLR 62 at 63).
(c) Where such visit took place after judgment has been reserved, the parties shall be
further entitled to address the court (Chukwuogor v. Obiora (1987) 3 NWLR (Pt.
61) 454).
115. It is incumbent on the Court that conducts a visit to the locus in quo to make a
detailed record of what transpired at the visit in its record of proceedings so as to
enable it to refresh its memory when it comes to writing its judgment and assist it in
its consideration and evaluation of the evidence adduced before it (Chukwuogor vs.
Obiora (1987) 3 NWLR (Pt. 61) 454).
116. Notwithstanding the foregoing, where a trial judge makes a visit to locus in quo, it is
not proper for him to treat his perception at the scene as a finding of fact without
evidence of such perception being given by a witness either at the locus or later in
Court after the inspection (Shekse v. Plankshak & Ors (2008) 15 NWLR (Pt. 1109) 105
SC).
[37]
PART PART PART PART 5555
ENSURING SPEEDY TRIAL
General
117. It is a constitutional requirement that a defendant shall be entitled to a fair trial
within a reasonable time (s 36(1) CFRN 1999 as amended). The time for judging
whether the right to a trial within reasonable time has been violated runs from the
date of the defendant’s arrest.
118. For speedy trial, the court may fix three court sessions daily namely 9:00am to
11:00am, 11:00am to 1:00pm, and, 1:30pm to 3:30pm with counsel having option of
having their matters assigned to any of such sessions.
Balancing Interests of the Public and Accused: Speedy trial
119. In a trial in the Magistrate’s court or tribunal:
(a) The prosecution shall provide the defendant with all the materials that the
prosecution intends to rely on at the trial, before or at the commencement of the
trial. (s. 350(2) ACJA).
(b) The trial of a charge preferred under s 110 ACJA shall commence not later than
thirty days from the date of filing the charge, and the trial of the person brought
under the charge shall be completed within a reasonable time (s 110(3) ACJA).
120. Where an offence is one which a Magistrate court has jurisdiction to try, the police
shall file the charge at the Magistrate’s court, accompanied with:
(a) the list of witnesses;
(b) the list of exhibits;
(c) statements of the witnesses and of the defendant; and
(d) any report, document or material that the prosecution intends to rely on at the
trial of the offence but the prosecution may, with leave of the court, file and serve
any additional document (s 376(4) ACJA).
121. An information shall be filed in the registry of the High Court before which the
prosecution seeks to prosecute the offence, and shall include the proof of evidence,
which shall all be served on the defendant or his legal representative, consisting of:
[38]
(a) the list of witnesses;
(b) the list of exhibits to be tendered;
(c) summary of statements of the witnesses;
(d) copies of statement of the defendant;
(e) any other document, report, or material that the prosecution intends to use in
support of its case at the trial;
(f) particulars of bail or any recognizance, bond or cash deposit, if defendant is on
bail;
(g) particulars of place of custody, where the defendant is in custody;
(h) particulars of any plea bargain arranged with the defendant;
(i) particulars of any previous interlocutory proceedings, including remand
proceedings, in respect of the charge; and
(j) any other relevant document as may be directed by the court (s 379 ACJA).
122. It is imperative for a court to ensure that the case assigned to it falls within its
jurisdiction and bail must be considered in bailable offences on the fairest terms,
upon discretion exercised judiciously and judicially, unless where the judge otherwise
believes or is convinced that remand is the most appropriate course, howsoever, that
the dates to which the matter is then adjourned must not be of a lengthy interval (s
396 (1)-(7) ACJA).
123. Where an information has been assigned to a Judge of the High Court, the court to
which the information is assigned shall, within ten working days of the assignment,
issue notice of trial to the witnesses and defendants and issue a production warrant
properly endorsed by the Judge in respect of the defendant charged, where he is in
custody, for the purpose of ensuring his appearance on the date of arraignment, and
the Chief Registrar shall ensure the prompt service of the notice and information not
more than three days from the date they are issued (ss 382(2) and 391 ACJA).
124. Trial may commence immediately upon the arraignment of the defendant, unless
there are circumstances that makes it impracticable.
125. Any objection to the validity of the charge or information made by the defendant
shall not be separately taken as a preliminary issue but considered along with the
[39]
substantive issues and a ruling thereon made at the time of delivery of judgment (s
396(2) ACJA).
126. Upon arraignment on a charge or information, the trial of the defendant shall
proceed day-to-day until the conclusion of the trial (s 396(3) ACJA), provided that:
(a) Where day-to-day trial is impracticable after arraignment, no party shall be
entitled to more than five adjournments from arraignment to final judgment,
provided always that the interval between each adjournment shall not exceed
fourteen days (s 396(4) ACJA).
(b) Where it is impracticable to conclude a criminal proceeding after the parties have
exhausted their five adjournments each, the interval between adjournments shall
not exceed seven days inclusive of weekends (s 396(5) ACJA).
127. For purposes of reckoning time, the following may be ‘excludable periods’:
(a) Periods of delay resulting from other proceedings concerning the defendant.
(b) Periods of delay resulting from the absence or unavailability of the defendant or
an essential witness, if reasonably excused.
(c) Periods of delay resulting from the fact that the defendant is mentally
incompetent or physically unable to stand trial.
(d) The period of delay resulting from an adjournment requested or consented to by
the defendant’s lawyer.
(e) The period of delay resulting from an adjournment requested by the prosecutor,
but only if the prosecutor demonstrates on the record either:
(i) the unavailability, despite the exercise of due diligence, of material evidence
that the prosecutor has reasonable cause to believe will be available at a later
date; or
(ii) any exceptional circumstances justifying the need for more time to prepare
the prosecution’s case.
(f) A reasonable period of delay when the defendant is joined for trial with a
codefendant as to whom the time for trial has not run, but only if good cause
exists for not granting the defendant a severance so as to enable trial within the
time limits applicable; and
[40]
(g) Any other periods of delay that in the court’s judgment is justified.
128. Where the trial does not commence within the prescribed time, the court may strike
out the information or charge for lack of diligent prosecution.
Other Principles Guiding Adjournments
129. An application for stay of proceedings in respect of a criminal matter before the Court
shall not be entertained and no adjournment shall be granted on account of such
application (s 306 ACJA); Metuh v FRN & Anor. (2017) 11 NWLR (Pt. 1575) 157; Adeyinka
Ajiboye v FRN (2012) LPELR 15338CA.)
130. An adjournment may properly be made when the case for both sides is closed and the
court has to retire to consider its verdict (s 307(1) ACJA).
131. Adjournments may be granted for good cause, such as:
(a) to accommodate the absence of a material witness, where it appears probable
that the witness will be produced to testify on the subsequent session of the
court.
(b) illness affecting the prosecutor, defence counsel or the Judge or their close
relatives to such a degree requiring their personal attention.
(c) for defendant to retain or change counsel.
(d) where the defendant requests an adjournment, the following factors should be
considered:
(i) whether the defendant is asserting a constitutional right (e.g., the right to
counsel);
(ii) whether the defendant has a legitimate reason for asserting the right (e.g., a
bona fide irreconcilable dispute with counsel over whether to call alibi
witnesses);
(iii) whether the defendant was negligent with regard to any delay in his or her
request;
(iv) whether the defendant requested previous adjournments; and
(v) whether the defendant can demonstrate that prejudice would result from a
denial of the request.
[41]
132. A magistrate may adjourn a trial for the purpose of:
(a) Awaiting such a time when an information or charge is filed in the High court by
a law officer pursuant to s 373 ACJA;
(b) Awaiting such a time when a person in charge of prosecution may have consulted
with a law officer pursuant to s 374 ACJA.
133. Where reference has been made to a Court of Appeal arising from a question as to the
interpretation of the Constitution of the Federal Republic of Nigeria which arises in
the course of a trial, the court may in its discretion:
(a) adjourn the trial until the question has been considered and decided;
(b) conclude the trial and postpone the verdict until such time as the question has
been considered and decided: or
(c) conclude the trial and pass sentence but suspend execution until such time as the
question has been considered and decided, and in any such case the court in its
discretion shall commit the defendant or convict to prison or admit him to bail (s
305 ACJA).
134. In all circumstances, the court may award reasonable costs in order to discourage
frivolous adjournments.
[42]
PART PART PART PART 6666
DISCLOSURE ISSUES
General
135. By s 36(6)(b) CFRN 1999 (as amended) every defendant is entitled to adequate
facilities for the preparation of his defence. “The facilities that must be afforded the
accused person are the ‘resources’ or ‘anything which would aid’ the accused person
in preparing his defence to the crimes for which he is charged. These, no doubt,
include the statements of witnesses interviewed by the police in the course of their
investigation which might have absolved the accused of any blame or which may
assist the accused to subpoena such favourable witnesses that the prosecuting
counsel may not want to put forward to testify”: Okoye & Ors. v. COP & Ors. (2015)
LPELR-24675(SC).
136. A breach of s 36(6)(b) is a breach of the requirement of fair hearing sufficient to
vitiate the trial or any result thereof. Suppression by the prosecution of evidence
favourable to an accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good faith or bad faith of
the prosecution: (Brady v. Maryland, 373 U.S. 83 (1963)). Similarly, having regard to
the potential to breach of fair hearing, ‘the prosecution has an obligation to disclose
such information even in the absence of a defence request’. (Banks v. Dretke, 540 U.S.
668, 695–96 (2004)).
137. A prosecutor’s disclosure obligations are ongoing: they begin as soon as the case is
brought and continue throughout the pretrial and trial phases of the case. How early
disclosure must be made by the prosecution depends upon the circumstances of each
case and the prejudice to which the defendant may be exposed by the timing of the
disclosure. Disclosure before trial (and often well before trial) is always preferable
and may be required if the material is significant, complex or voluminous, or may
lead to other exculpatory material after further investigation.
138. When it is uncertain whether information is favourable or useful to a defendant and
therefore liable to be disclosed, “the prudent prosecutor will err on the side of
transparency, resolving doubtful questions in favour of disclosure.” It is however the
duty of the court, in any event, to determine whether statements should be produced
in any particular case (for which it may conduct in camera inspection), and where
appropriate, give the order for such disclosure.
[43]
139. Information is favourable to the accused either because it is exculpatory, or because it
is impeaching. Information may be favourable even if it is not admissible as evidence
itself, as long as it reasonably could lead to admissible evidence.
140. Whether the information is exculpatory or impeaching, it must be material
information:
(a) Information is considered ‘material’ when there is a reasonable probability that,
had the evidence been disclosed, the result of the proceeding would have been
different.
(b) While materiality of the information may be considered even before or during
trial, obviously it may not always be apparent in advance whether the
suppression of a particular piece of information ultimately might undermine
confidence in the outcome of the trial. Thus, “materiality” necessarily is
retrospective and is normally used by an appellate court after trial to review
whether a failure to disclose on the part of the government was so prejudicial that
the defendant is entitled to a new trial.
(c) Although each instance of nondisclosure is examined separately, the suppressed
evidence is considered collectively, not item by item in determining materiality.
141. It does not matter whether a failure to disclose is intentional or inadvertent, since an
inadvertent nondisclosure has the same impact on the fairness of the proceedings as
deliberate concealment.
142. The duty to disclose covers only materials available to the prosecution. Thus, the duty
to disclose does not extend to information which the defendant:
(a) already knew about;
(b) could have obtained with reasonable effort;
(c) had equal access to obtaining;
(d) either knew, or should have known, of the essential facts permitting him to take
advantage of any exculpatory evidence.
143. The duty to disclose may be held violated by suppression when disclosure is so late
that the defence is unable to make effective use of the information at the trial. Thus,
defence counsel must be given reasonable time to review written or oral statements
before cross-examining witness.
[44]
Exculpatory Information required to be disclosed includes:
144. Information that is inconsistent with any element of any crime charged in the
indictment or that tends to negate the defendant’s guilt of any of the crimes charged.
145. Failure of any person who participated in an identification procedure to make a
positive identification of the defendant, whether or not the government anticipates
calling the person as a witness at trial.
146. Any information that links someone other than the defendant to the crime (e.g., a
positive identification of someone other than the defendant) or evidence that another
person confessed to the commission of the crime.
147. Information that casts doubt on the accuracy of any evidence—including witness
testimony—that the prosecutor intends to rely on to prove an element of any of the
crimes charged in the indictment, or that might have a significant bearing on the
admissibility of that evidence in the case-in-chief.
148. Any classified or otherwise sensitive national security material disclosed to defence
counsel or made available to the court in camera that tends directly to negate the
defendant’s guilt.
149. Any information favourable and material to the defendant in the sentencing phase.
Impeachment Information required to be disclosed includes:
150. All statements made orally or in writing by any witness the prosecution intends to
call in its examination-in-chief that are inconsistent with other statements made by
that same witness.
151. All plea agreements entered into by the government in a case or related cases with
any witness the government intends to call.
152. Any favourable dispositions of criminal charges pending against witnesses the
prosecutor intends to call such as informal agreement to reduce charges against
witness in different case in return for his testimony against defendant.
153. Offers or promises made or other benefits provided, directly or indirectly, to any
witness in exchange for cooperation or testimony, including:
(a) Dismissed or reduced charges (e.g. key prosecution witness, who was originally
charged as codefendant, had other felony charges dismissed).
[45]
(b) Immunity or offers of immunity (e.g. to key witnesses).
(c) Expectations of reduction of sentence (e.g. promise to testifying co-defendant,
who earlier pleaded guilty, to recommend probation).
(d) Assistance in other criminal proceedings.
(e) Considerations regarding forfeiture of assets, forbearance in seeking revocation of
professional licenses or public benefits, waiver of tax liability, or promises not to
suspend or debar a government contractor.
(f) Stays of deportation or other immigration benefits.
(g) Monetary or other benefits paid or promised.
(h) Non-prosecution agreements (such as promise to key witness and alleged co-
conspirator that he would not be prosecuted if he testified against defendant).
(i) Letters to other law enforcement officials setting forth the extent of a witness’
assistance or making recommendations on the witness’ behalf.
(j) Relocation assistance or more favourable conditions of confinement.
(k) Prior convictions of witnesses the prosecutor intends to call.
(l) Pending criminal charges against any witness known to the government.
(m) Prior specific instances of conduct by any witness known to the government that
could be used to impeach the witness including any finding of misconduct that
reflects upon truthfulness.
(n) Substance abuse, mental health issues, or physical or other impairments known
to the government that could affect any witness’ ability to perceive and recall
events.
(o) Information known to the government that could affect any witness’ bias, such
as:
(i) animosity toward the defendant; or
(ii) previous relationship with law enforcement authorities.
(p) Prosecutorial misconduct (such as threatening remark by prosecutor to critical
prosecution witness who was on probation that if he did not come through for
the prosecutor he would be sent back to jail).
[46]
PART PART PART PART 7777
THE ROLE OF THE COURT IN PLEA BARGAIN
154. The presiding Judge or Magistrate before whom the criminal proceedings are pending
shall not participate in the discussion leading up to the agreement.
155. The Judge is required to ascertain, when presented with the plea agreement, that the
defendant admitted the allegation in the charge to which he has pleaded guilty and
that he entered into the agreement voluntarily and without undue influence.
156. Where the Judge is satisfied that the defendant is guilty of the offence to which he
has pleaded guilty, he shall convict the defendant on his plea of guilty to that offence.
157. Where the judge is, for any reason, of the opinion that the defendant cannot be
convicted of the offence in respect of which the agreement was reached and to which
the defendant has pleaded guilty or that the agreement is in conflict with the
defendant’s right referred to in s 270 (7) of the ACJA, the Judge shall record a plea of
not guilty in respect of such charge and order that the trial proceed.
158. The Judge must in such circumstances give the reason or reasons upon which his
opinion is based.
159. Upon conviction of the defendant on his plea of guilt, the options open to the Judge
are:
(a) The Judge must consider the sentence as agreed upon and take one of three
courses, namely:
(i) Where the Judge is satisfied that such sentence is an appropriate sentence, he
will impose the sentence as agreed; or
(ii) Where the Judge is of the view that he would have imposed a lesser sentence
than the sentence agreed, he may impose the lesser sentence; or
(iii) If the Judge is of the view that the offence requires a heavier sentence than
the sentence agreed upon, he shall inform the defendant of such heavier
sentence.
(b) Where the defendant has been informed of the heavier sentence as proposed by
the Judge, the defendant may:
[47]
(i) abide by his plea of guilty as agreed upon and agree that, subject to the
defendant’s right to lead evidence and to present argument relevant to
sentencing, the presiding Judge or Magistrate proceed with the sentencing; or
(ii) resile from his plea agreement, in which event the trial shall proceed de novo
before another presiding Judge or Magistrate.
(c) Where a trial proceeds as contemplated under s 270(15)(a) ACJA or de novo
before another presiding Judge or Magistrate:
(i) no reference shall be made to the earlier agreement;
(ii) no admission contained therein or statements relating thereto shall be
admissible against the defendant; and
(iii) the prosecutor and the defendant may not enter into a similar plea and
sentence agreement.
160. Where it is part of the agreement, the court shall order that any money, asset or
property agreed to be forfeited under the plea bargain shall be transferred to and vest
in the victim or his representative or any other person as may be appropriate or
reasonably feasible.
[48]
PART PART PART PART 8888
CONTEMPT
Nature of Contemptuous Conducts
161. Generally, what amounts to disrespect or interference or conducts or acts which
undermine the authority of a court is a matter of fact but a charge of contempt is a
serious one which has to be proved beyond reasonable doubt to the satisfaction of the
court before a committal order can properly be made. (Agbachom v The State
[1970] All NLR 71)
162. Contemptuous occasions include where:
(a) any person who within the premises in which any judicial proceedings is being
heard or taken or within the precincts of the court shows any disrespect in speech
or manner with reference to such proceedings within the court; or
(b) any person having been duly summoned to give evidence in any judicial
proceedings fails to attend or having attended refuses to be sworn or to make an
affirmation; or
(c) any person having been sworn or affirmed refuses, without lawful excuse, to
answer a question or produce a document; or
(d) any person remains in the room where proceedings are conducted after being
ordered to leave or causes any obstruction or disturbance in the course of the
judicial proceedings; or
(e) any person who, while such proceedings are ongoing or pending makes use of
any speech or writing misrepresenting such proceedings and which is capable of
prejudicing any person in favour of or against a party to such proceedings; or
(f) any person publishes a report of evidence taken in any judicial proceeding which
has been directed to be held private and which report is calculated to lower the
authority of any person before whom such proceeding is being heard or taken; or
(g) any person who wrongfully attempts to interfere or influence a witness in any
judicial proceedings either before or after giving evidence or connection with
such evidence.
(h) Any circumstance where a court of law has given an order either restraining or
mandating the doing of a particular act and such an order was wilfully disobeyed
or made impossible to be obeyed by the deliberate act of the contemnor.
[49]
Caution to be observed in Contempt Proceedings
163. The concept of contempt of a court revolves around disobedience of an order of court
in given proceedings or doing acts or conducts which are intended manifestly to
undermine the authority and dignity of the court and showing disrespect to the
court. The courts are enjoined to use or invoke the power to punish for contempt
sparingly and only in clear cases of willful act or conduct which show disrespect to
the authority and dignity of the court. (Agbachom v The State [1970] All NLR 71)
164. Notably it might be difficult in ascertaining the intent of the contemnor, which must
be proved. Therefore, care must be applied so that casual or un-willful disobedience
to an order will not justify an order for committal, as there may be clear absence of
intention to disobey depending on the basis of the object of the contempt
proceedings.
165. Proceedings for contempt affect citizens’ liberty; therefore, strict observance must be
made to form on procedure.
Summary Contempt Procedure
166. A Judge should be able to identify those actions taken by counsel or litigants during
proceedings that disclose the nature of the contempt.
167. The nature of contempt of court is either in facie curiae or ex facie curiae. Regarding
contempt in faciae curiae, the Judge must have seen with his own eyes, to the extent
that he needs no evidence of witnesses at all. Thus, he can deal with the contemnor
instantaneously without a charge being framed or plea taken. Contrariwise, in the
latter case (contempt exfaciae curiae), the court is obliged to transfer the charge to
another court where the contemnor can be given proper trial on the merits by a
different Judge: Awosanya v. Board of Customs & Excise (1975) 1 All N.L.R 106 and
Oko-Osi v. Akindele (2013) LPELR-20353(CA).
168. In contempt proceedings for disobedience of court order, the proceedings are quasi
criminal and the standard of proof required is not that of balance of probability but
beyond reasonable doubt (Anthony v Surveyor General, Ogun State & Anor (2007) All
FWLR (Pt.354) 375).
169. Where contempt is committed ex facie curiae, the normal procedure of issue of
warrant, arrest, drafting of charge, taking of plea, calling of witness etc. must be fully
followed.(Nzidee v. Kootu (2007) 1 NWLR) Pt. 101) 99).
[50]
170. In all instances of contempt, an opportunity must be given to the contemnor to speak
on his behalf in person or by a legal practitioner.
171. A company, being a juristic person, is capable of being subject to contempt charge.
Therefore, once there is an allegation of contempt of court orders by a company, the
veil of incorporation will be lifted in order to hold the principal officers of the
company who participated in the alleged acts of contempt responsible. However, for
any of the principal officers of a company to be held liable, personal service of the
order of court must be effected on that officer. (I.B.W.A. v. Sasegbon (2007) NWLR
(Pt. 1059) 195)
172. There can be no contempt where there is no restraining order.
Summons and Handling Recalcitrant Witness
173. The court may, on an application of the prosecution or the defence, issue a summon
or a writ of subpoena on a witness requiring him to attend court to give evidence in
respect of the case, and to bring with him any specified documents or things and any
other documents or thing relating to them which may be in his possession or power
or under his control. However, where the prosecutor is not a public officer, the
person to whom the summons is addressed is not bound to attend unless his
traveling expenses are paid to him (s 241(1) ACJA).
174. A witness may be recalcitrant either when a witness refuses to heed a summons
served on him to come to court and testify in court or when the witness refuses to
answer a proper question during trial.
175. For a witness who ignores a witness summons or a subpoena, then after satisfactory
proof that the summons was duly served on him and he has not provided any
reasonable excuse for his non-attendance, the court may issue a warrant in Forms 13
or 14 for the arrest of the defaulting witness (ss 243 and 398 ACJA).
176. Where a person named on a summons or writ of subpoena willfully refuses to accept
service of the summons or writ of subpoena, the court shall issue a warrant for the
person to be arrested and be brought before the court at a time to be mentioned in
the warrant in accordance with the summons or writ of subpoena (s 399).
177. A witness arrested may be brought before a Magistrate who may admit him to bail on
such terms it considers sufficient to secure his future attendance in court where the
hearing for the case for which his testimony is required has been fixed for a time
more than 24 hours after the arrest (s 245 ACJA).
[51]
178. Where a witness, without reasonable cause, refuses or neglects, to attend court in
compliance with the requirements of a summons duly served in the manner
prescribed by law or departs from the premises of the Court without the leave of the
Judge or Magistrate hearing the case, the witness may be liable on summary
conviction to the extent prescribed in s 246 (1) ACJA.
179. When a witness refuses to be sworn or affirmed as a witness or, having been sworn,
refuses to answer a proper question during trial or refuses to produce a document or
anything he is required by the court to produce, the court may adjourn the hearing of
the case and may in the meantime by warrant, commit the person to prison or other
place of safe custody for a period not exceeding thirty days (s 250 ACJA).
180. When a witness refuses to be sworn or affirm as a witness or, alternatively, having
been sworn, refuses to answer a proper question during trial or refuses to produce a
document or anything he is required by the court to produce, the court may consider
the following procedure:
(a) Determine the reason for the refusal.
(b) If the witness claims right against self-incrimination, determine whether the
privilege has been properly claimed.
(c) Right against self-incrimination extends to:
(i) answers that would support a conviction of the witness or his or her spouse
for violating a federal or state criminal statute; or
(ii) answers that would furnish a link in the chain of evidence needed to
prosecute the witness or his or her spouse for violating a federal or state
criminal statute.
(d) The right against self-incrimination will not apply:
(i) if the time for proceedings regarding the offence for which there was a likely
exposure has expired;
(ii) if the offence to which there was likely exposure has been pardoned; or
(iii) if the witness has already been convicted or discharged and acquitted for the
offence to which there was likely exposure.
(e) The privilege may be in the form of the witness not being compellable under the
Diplomatic Immunities and Privilege Act.
[52]
(f) Where no valid right against self-incrimination claimed or other good cause is
shown, the court should advise the witness:
(i) That where the witness persists in refusing to answer or produce what was
required, he will be cited for civil contempt, and if found guilty, will be
confined until he answers the question or until the trial ends. The court may
further advise the witness that he may be fined in addition to being confined.
(ii) That where the witness has not answered the question before the trial ends,
he or she may then be cited for criminal contempt pursuant to s 142 of the
Penal Code Act.
(g) After advising the defendant as above, recommence the trial and have the
question re-asked and the witness ordered to answer.
(h) Where the witness refuses to answer and persists in his refusal, counsel should be
permitted to examine the witness concerning other subject matter about which
the witness is willing to testify.
(i) After the witness has been examined on such other subject-matter, direct him to
remain in court until the next recess or a time can be set for a hearing to
determine if the witness should be found in civil contempt.
(j) Where a hearing is considered, the witness should be given a reasonable time to
prepare for the hearing, though this time depends on the need for prompt action.
Where the trial is expected to be short, the court should set an early hearing so
that effective pressure to testify can be exerted on the witness before the trial
ends. Where the trial is expected to be lengthy, the hearing need not be held so
promptly.
(k) Where, at the hearing, the witness fails to show good cause why he should not be
compelled to answer the question that the court had ordered the witness to
answer, he should be found in civil contempt and remanded in custody. Advise
the witness that he or she may purge himself or herself of contempt and secure
release by answering the question.
(l) Direct law enforcement officers to return the witness to the courtroom before
court convenes for the next session. At that time ask the witness whether he is
prepared to answer the question. Where the witness is not prepared to answer,
again remand him in custody. Advise the witness to notify the law enforcement
[53]
officer when he decides to answer the question, thereafter he can be returned to
court and permitted to purge himself of contempt.
(m) Where the witness has not purged himself of contempt by the time the trial ends,
have him brought back into court and notify him that he is being cited for
criminal contempt for refusing to obey the court’s order.
(n) Set the matter down for hearing at a certain place and time to determine if the
witness is guilty of criminal contempt.
(o) Advice the witness that he has a right to be represented by counsel at that
hearing and that if the witness cannot afford counsel, the court may appoint an
attorney.
(p) Release the witness from custody. Bail may be set to ensure the witness’s
appearance at the hearing.
Handling a Disruptive or Dangerous Defendant
181. In handling defendants who are merely disruptive but not dangerous:
(a) The court should warn the defendant that continuation of the disruptive conduct
will lead to removal of the defendant from the courtroom.
(b) If the disruptive conduct continues, the court should determine whether the
conduct warrants removal of the defendant.
(c) At the beginning of each session, the court should advise the defendant that he
may return to the courtroom if the defendant assures the court that there will be
no further disturbances.
(d) The court should consider ways to allow the defendant to communicate with his
attorney to keep apprised of the progress of the trial. If possible, the court should
consider making arrangements to allow the defendant to hear or see the
proceedings via electronic means, if available.
(e) The court should consider any other factors required by law.
(f) If the disruptive defendant is appearing pro se and standby counsel is present, the
court should first warn the defendant that pro se status will be denied and that
standby counsel will take over if there is further disruption. If pro se status is
denied and standby counsel takes over, the defendant may be removed from the
courtroom for any further disruption.
[54]
182. When faced with a potentially dangerous defendant, the court may:
(a) Consider less intrusive protective measures that are less likely to prejudice the
defendant, such as putting extra law enforcement officers in the courtroom.
(b) Consider less visible measures, such as draping the defence table so that leg
shackles cannot be seen, or using “stun belts” that can be worn underneath a
defendant’s clothes.
(c) Allow defence counsel (or the defendant if pro se) the opportunity to respond to
the court’s concerns.
(d) If the factual basis for restraint is disputed, consider holding an evidentiary
hearing and making findings on the record.
(e) Make an independent evaluation based on the circumstances of the case and the
individual defendant.
(f) If the court concludes that physical restraint is advisable, it may impose no
greater restraints than necessary to secure the courtroom and take all practical
measures, including a cautionary instruction, to minimize the prejudice resulting
from a party appearing in physical restraints.
[55]
PART PART PART PART 9999
ADMISSIBILITY
General
183. The Evidence Act 2011 determines the admissibility or otherwise of a particular piece
of evidence or document in the course of all criminal and civil proceedings (s 256
Evidence Act).
184. Notwithstanding the foregoing, evidence may be admitted if it is made admissible
under any other legislation validly in force in Nigeria (s 3 Evidence Act).
185. There is distinction between admissibility of a document and the weight to be
attached to it; a document may be admissible in evidence but found to have very little
or no probative value. See: R v Itule (1961) 2 SCNLR 183 and I.M.B (Nig.) Ltd. v Dabiri
(1988) 1 NWLR (Pt. 533) 284.
186. For a document to be admissible in criminal cases, it must fulfill certain criteria,
namely:
(a) It must be relevant to the fact in issue or to other facts related to facts in issue.
(b) It must fulfill all conditions-precedent to admissibility.
187. The court has a duty to expunge wrongfully admitted evidence from its record
(Olayinka v State (2007) 9 NWLR (Pt. 1040) 561). In this regard, a distinction is drawn
between documents that are inadmissible for all purposes, and documents that are
admissible upon proper foundation being laid. In the former case the document
remain legally inadmissible and cannot under any circumstance constitute evidence
in the case at the trial or on appeal even where objection was not taken to its
admission or it was admitted by consent. In the latter case, if the document was
admitted without objection or with the consent of the parties, it constitutes legal
evidence even though conditions precedent to admissibility was not fulfilled
(Anyaebosi v. R.T. Briscoe Nig. Ltd. (1987) NWLR (Pt. 59) 84).
188. Content of documents may be proved either by primary evidence (the document
itself) or secondary evidence (a copy) (s 85 Evidence Act).
189. Where a document has been executed in several parts, each part shall be primary
evidence of the document.
190. Documents may be public or private:
[56]
(a) Public documents are documents forming the official acts or records of the
official acts of the sovereign authority; official bodies and tribunals; or public
officers, legislative, judicial and executive, whether of Nigeria or elsewhere; and
public records kept in Nigeria of private document (s 102 Evidence Act).
(b) All documents other than public documents are private documents (s 103
Evidence Act)
191. As far as a public document is concerned, the only secondary evidence admissible is a
certified true copy and no other kind of secondary evidence (Onochie v Odogwu
(2006) 6 NWLR (Pt. 975) 65).
192. A photocopy of a Certified True Copy needs to be recertified for it to be admissible.
(Magaji v Nigeria Army (2008) 8 NWLR (Pt. 1089) 338).
193. Generally, photocopies of document are inadmissible without proper foundation
being laid to enable their admission. Such foundation may be credible evidence or
explanation as to the existence or nonexistence of the originals or why it is
impracticable to bring the originals to court (Nigerian Industrial Development Bank
Limited v Fembo (Nig) Ltd (1997) 2 NWLR (Pt. 489) 543).
194. A document made by a person interested at a time when proceedings were pending
or anticipated involving a dispute as to any fact which the statement might tend to
establish is inadmissible (s 83(3) Evidence Act).
195. Documentary evidence may be admissible in court proceedings notwithstanding that
the maker of the document is available and not called as a witness (s 83(2)(a)
Evidence Act).
196. Evidence of a witness taken in an earlier proceeding is not admissible in a later trial
except for the purpose of discrediting such a witness during cross-examination
(Njoku v Dikibo (1998) 6 NWLR (Pt. 552) 1).
197. For tape recorded speech (audio or video) to be admissible in evidence, proper
foundation must be laid as to the source of the recorded speech and explanation must
be made on how it was obtained (Madueke v Okoroafor (1992) 9 NWLR (Pt. 262) 69;
INEC v AC (2009) 2 NWLR (Pt. 1126) 524 at 595-596).
198. Hearsay is a statement, oral or written, made by a person other than the witness in a
proceeding; or contained or recorded in a book, document or any record whatever,
proof of which is not admissible under any provision of the Evidence Act, which is
[57]
tendered in evidence for the purpose of proving the truth of the matter stated in it (s
37 Evidence Act).
199. Generally, hearsay evidence is inadmissible unless as provided in the Evidence Act in
Part IV.
200. Evidence elicited during cross-examination is just as valid as evidence given in
examination in chief.
201. Where a document is dumped on the court by being tendered and admitted in
evidence without any supporting oral evidence in explanation or support of the
evidence or establishing a nexus between the evidence and the case, such
documentary evidence will carry little or no weight (Adike v. Obiareri (2002) 4 NWLR
(Pt. 758) 537).
202. Documents produced in a uniform process are each a primary evidence of the
document.
203. A document rejected and marked rejected is no longer relevant and cannot be
tendered again; however, where the court is faced with an objection on grounds of
non-payment of certification fee for a public document, rather than reject the
document, the court should direct that the requisite fees be paid and thereafter admit
the document (Tabik Investment Ltd. v GTB Plc. (2011) 17 NWLR (Pt. 1276) 240).
204. With respect to public document, where it was rejected by a court on account of it
not being certified, it may be certified and be subsequently admitted if tendered
(Israel Aribisala v Talabi Ogunyemi & Sons (2005) 6 NWLR (Pt. 921) 212 SC; Omogbai v
Aiyemohoba (2002) 8 NWLR (Pt. 770) 687CA).
205. Affidavits and documents attached to an affidavit constitute admissible evidence.
206. The requirement for a jurat in a document in a illiterates protection statute is only
applicable in business transactions or other contractual relationships or obligations
between an illiterate person and third parties and it has no bearing in criminal
matters, especially in the way and manner an investigator or police officer obtains or
takes statements of offenders concerning commission of crimes which principally are
offences against the State. (Umaru Sunday v. Federal Republic of Nigeria (2013) LPELR-
20192(CA)).
207. For computer or electronically generated evidence, all the conditions precedent in
section 84 Evidence Act must be fulfilled by a party who is desirous of demonstrating
electronically the contents of a document.
[58]
208. In certain exceptional circumstances, where the evidence of a technical,
professional or expert witness would not ordinarily be contentious as to require
cross-examination, and where there is no objection by the parties, the court may
grant leave for the evidence to be taken in writing or by electronic recording device,
on oath or affirmation of the witness, and the deposition shall form part of the record
of the court (s 362(1) ACJA).
209. Where it appears to the court that a person who is seriously ill or hurt may not
recover, but is able and willing to give material evidence relating to an offence and it
is not practicable to take the evidence in accordance with the provisions of the ACJA,
the Judge or Magistrate shall, with the participation of the parties:
(a) take in writing the statement on oath or affirmation of the person and subscribe
the statement and certify that it contains accurately the whole of the statement
made by the person; and
(b) add a statement of his reason for taking the statement, the date and place when
and where the statement was taken, and shall preserve the statement and file it
for record (s 362(2) ACJA).
Co-Conspirator Statements
210. Conspiracy is an agreement by two or more persons to commit an unlawful act
coupled with intent to achieve the agreed objective. It is a separate offence from the
crime that is the object of the conspiracy. See Haruna v State (1972) 8 – 9 SC 174;
Osondu v FRN. (2000) 12 NWLR (Pt. 682) 483.
211. Generally, statements made by a co-conspirator during the course of a conspiracy and
in furtherance of the conspiracy are deemed admissible and are not barred by the
hearsay rule.
212. A co-conspirator is a fellow conspirator who associates or collaborates in a
conspiracy.
213. There is no limit on the number of persons that can participate in a conspiracy; they
need not even have met or known each other, and they can be at different places and
still conspire.
214. The role of a defendant may not even be visible but can be inferred from overt acts
undertaken or from conduct. See Tanko v State (2008) 16 NWLR (Pt. 1114) 591;
Omotola v State (2009) 4 NSCC 89.
[59]
215. A statement made in furtherance of conspiracy is admissible in evidence against the
maker of such statement.
216. It is not the law that once an accused person is discharged and acquitted the co-
accused must as a matter of course be discharged and acquitted: Idiok v State (2008)
13 NWLR (Pt. 1104) 225.
217. In a joint criminal trial, where a defendant is discharged on account of a discredited
evidence, the same evidence cannot be relied upon to convict a co-defendant: Adele v
The State (1995) 2 SCNJ 256.
Proof of Evidence of Conspiracy
218. Prosecutor must establish the agreement to do something which is illegal or do
lawful thing by unlawful means.
219. Conspiracy is an offence which is difficult to prove because it is often hatched in
secrecy. It is usually inferred from the facts and evidence led.
Confessional Statements and Trial within Trial
220. Where a suspect arrested with or without a warrant volunteers to make a
confessional statement, the person taking it shall ensure that the making and taking
of the statement shall be in writing and may be recorded electronically on a
retrievable video compact disc or any other audio visual means (s 15(4) ACJA).
221. The oral confession of an arrested suspect shall be admissible in evidence (s 15(5)
ACJA) but where the defendant objects to the admissibility of the confession on the
ground that it was not voluntarily made, the court shall decide the question of its
voluntariness and admissibility before continuing with the proceedings.
222. A trial within trial is not necessary where the statement is not a confessional
statement in the sense of being an admission of guilt.
223. A trial within trial is not necessary where the defendant denies making the alleged
confessional statement, not its voluntariness.
224. Where breach of s 17(2) ACJA is alleged, the prosecution may claim a waiver by the
defendant. But note the following:
(a) For a waiver to be valid, it must be shown to be voluntary, knowing and
intelligent.
[60]
(b) The test of voluntariness of a waiver is same as the tests for voluntariness of a
confessional statement as stated below.
(c) A waiver is “knowing and intelligent” if the suspect is aware of the nature of the
rights being abandoned and the consequences of the decision to abandon them.
225. Where the voluntariness of a confessional statement is challenged, a trial within trial
shall be conducted, taking the following factors into account:
(a) the age of the accused;
(b) the accused’s lack of education or his intelligence level;
(c) the extent of the accused’s previous experience with the police or the criminal
justice system;
(d) the repeated or prolonged nature of the questioning;
(e) whether there were any breaks in the defendant’s detention;
(f) the length of detention before the accused gave the statement;
(g) lack of any advice to the accused regarding his or her constitutional rights;
(h) an unnecessary delay in bringing the accused to court before he made the
statement;
(i) whether the accused was injured, intoxicated, drugged, or ill when he or she gave
the statement;
(j) whether the accused was deprived of food, sleep, or medical attention;
(k) whether the accused was physically abused; and
(l) whether the accused was threatened with abuse.
226. The burden of proof of voluntariness of a confessional statement is on the
prosecution.
227. Where a defendant has made more than one statement or more than one defendant
is being tried and the statement obtained from one defendant is challenged as being
involuntary, the court shall inquire whether the other defendants similarly have
objections to the statements obtained from them so that the voluntariness or
otherwise of all their statements may be considered together.
[61]
Identification Testimony
228. Eye witness identification is evidence of a witness who has actually seen an event
occur such as a crime and can so testify in court but caution should be exercised in
relying on same: United States v Wade 388 US 218 (1967).
229. An identification parade may not be necessary where the prosecution witness has
prior knowledge of the accused person (Igbi v State (2000) 2 SC 67).
230. Any discrepancy between a victim’s initial description and the defendant’s actual
appearance is relevant to the weight of the evidence, not to its admissibility.
231. For a conviction based wholly or substantially on evidence of identification to be
sustained, such evidence of identification ought to be corroborated by other
evidence: Okafor v Commissioner of Police [1964] NSCC 215.
232. The admissibility of identification testimony is not impaired by the fact a pretrial
identification procedure was impermissibly suggestive in so far as it did not create a
substantial risk of misidentification considering the totality of the circumstances.
233. In assessing the reliability of the identification testimony in light of the suggestive
identification procedure, the court must consider:
(a) the opportunity of the witness to observe the defendant at the time of the crime;
(b) the degree of attention of the witness at the time of the crime;
(c) the accuracy of the witness’ prior description of the defendant;
(d) the level of certainty demonstrated by the witness at pretrial confrontation; and
(e) the duration between the crime and the pretrial confrontation.
234. Where the totality of circumstances supports the reliability of a witness’ pretrial
identification outweighs any improper suggestiveness, the pretrial identification may
be used to advance the witness’ identification of the defendant at trial.
235. Identification of defendant may be by way of a lineup – physical, photographic, or
voice, under the following rules:
(a) In the absence of an intelligent waiver by the defendant, defence counsel should
be present wherever possible, at a lineup with the prosecution bearing the
burden of proving by clear and convincing evidence that the defendant waived
his right to counsel.
[62]
(b) The burden of proving that the lineup was not unduly suggestive lies on the
prosecution when defence counsel is not present but the burden shifts to the
defendant when his counsel is present.
(c) A photographic lineup should generally not be used if a suspect is in custody or if
the suspect could be compelled to take part in a physical lineup unless physical
lineup is not feasible owing to insufficient number of persons available with the
defendant’s physical characteristics.
(d) Identification testimony based on a photographic lineup may be permissible
where the defendant does not indicate any unique differences about his
photograph that served to make the lineup unduly suggestive and there are none
apparent on the record.
(e) Placing a defendant’s photograph first in a lineup is not inherently suggestive,
and in a random assortment, the first slot is no less likely than any other.
However, showing a witness only a single photograph or a group in which one
person is singled out can be impermissibly suggestive.
(f) The use of a single photograph only to help confirm the identity of the person the
witness had already identified as defendant will not violate due process where the
witness testified that he knew the defendant previously.
(g) It would be speculative to argue that because photographic lineups in which the
defendant was identified were not ‘double blind,’ the officers conducting the
lineup might have subtly or unconsciously suggested a ‘correct’ choice to the
witnesses.
(h) In a voice identification lineup, a defendant can be required to speak during a
lineup to determine if his voice is recognized but care should be taken to
determine that there is a basis for familiarity with a voice (e.g., familiarity,
peculiarity) and a reasonably positive identification.
[63]
PART PART PART PART 10101010
ADDRESS IN COURT
236. Opening Statement:
(a) By the prosecutor
(b) By defense counsel
Final Arguments
237. Right to final argument:
(a) After the close of all the evidence, the parties may make closing arguments.
(b) Arguments may be made orally or in writing as may be ordered by the court.
(c) If both sides presented evidence, the defence shall give its final argument first
while the prosecution in reply gives a rebuttal argument with a further right of
reply on points of law vesting on the defence.
238. Time limitation: The court may set time limits within which the parties may
respectively file their arguments and exchange same.
Permissible Contents of Closing Argument
239. In making closing arguments:
(a) A prosecutor may argue the evidence admitted at trial and reasonable
inferences arising from that evidence
(b) The prosecutor may not submit issues which are beyond the scope of guilt or
innocence, or make predictions on the consequences of the court’s verdict.
(c) The prosecutor can evaluate the personality, truthfulness, and integrity of
witnesses.
(d) The prosecutor may not appeal to the sympathy of the Judge, to his sense of
civic duty or to his religious beliefs.
(e) Neither a prosecutor nor a defence counsel may question the veracity of the
other.
[64]
(f) A prosecutor may not imply in closing argument that the defendant must prove
something or present a reasonable explanation for damaging evidence because
such an argument tends to shift the burden of proof.
(g) A prosecutor may not comment on the defendant’s failure to present evidence
because it is an attempt to shift the burden of proof.
(h) A prosecutor’s argument that inculpatory evidence is undisputed does not
constitute improper comment.
(i) A prosecutor may also argue that the evidence was uncontradicted even if the
defendant is the only person who could have contradicted the evidence.
(j) The prosecutor may argue from the facts that a witness is credible or that the
defendant or another witness is not worthy of belief.
(k) The prosecutor is free to argue the evidence and all reasonable inferences from
it as it relates to the prosecutor’s theory of the case.
(l) A prosecutor may not vouch for the credibility of witnesses by claiming some
special knowledge with respect to their truthfulness. Improper vouching occurs
when a prosecutor either (1) bluntly states a personal belief in a witness’s
credibility, thereby placing the integrity of the prosecutor’s office behind that
witness, or (2) implies that the witness’ testimony is corroborated by evidence
known to the government but not known to the court.
(m) A prosecutor may argue from the evidence presented that an expert witness had
a financial motive to testify at trial.
(n) Attacking the credibility of a theory advanced by a defendant does not
improperly shift the burden of proof.
(o) It is impermissible for the prosecutor to comment on a defendant’s failure to
take the stand.
(p) The prosecutor also may not direct questions to the defendant during closing
arguments which would require a defendant who did not testify to explain the
evidence against him because a practice would shift the burden of proof to the
defendant and violate his protection against self-incrimination.
(q) Questioning a defendant about his failure to confront his accomplice does not
violate the defendant’s right to silence.
[65]
(r) A prosecutor may point out that specific inculpatory evidence is undisputed
without violating the prohibition against commenting on a defendant’s failure
to testify especially when a person other than the defendant could have
provided testimony to dispute the evidence.
(s) The prosecutor is permitted to offer a rhetorical argument regarding a
defendant’s failure to produce witnesses which could corroborate his story, the
underlying rationale being that the constitutional protection against
defendant’s failure to take the stand does not apply to witnesses.
(t) A prosecutor may comment on a defendant’s failure to report a crime when
reporting the crime would have been natural if the defendant’s version of the
events were true.
(u) A prosecutor may comment on the inferences that may be drawn from a
defendant’s flight.
[66]
PART PART PART PART 11111111
PROBLEMS WITH MULTIPLE DEFENDANTS
Severance of Defendants
240. Individuals indicted together in the manner prescribed in s 208 ACJA are
ordinarily to be tried together, bearing the following principles in mind:
(a) The fact that more than one defendant is on trial is not evidence that they were
associated with each other or that either one is guilty.
(b) The court should consider each defendant separately. Each is entitled to have his
case decided on the evidence and the law that applies to him.
(c) If any evidence was limited to (one defendant/some defendants) the court should
not consider it as to any other defendants.
241. Joinder of distinct criminal charges is allowed when:
(a) there is a significant overlap of issues or evidence;
(b) the charges represent a series of events; and
(c) there is a “substantial interconnection” between the defendants, the proofs, and
the factual and legal bases of the crimes charged (ss 209, 211 ACJA).
242. The possibility of a better chance of acquittal does not necessarily warrant severance.
243. A motion for severance by a defendant claiming need for testimony of co-defendant
may warrant severance.
244. A motion for severance may be based on antagonistic defences.
245. A defendant’s desire to testify on one count but not on another may warrant
severance.
246. Factors to be considered by a court in assessing motion for severance:
(a) When a defendant demonstrates that it is necessary to prevent prejudice to his
substantial rights.
(b) A defendant is entitled to a separate trial where it appears that a co-defendant
may testify to exculpate himself and incriminate the defendant.
[67]
(c) The defences must not only be inconsistent, but also mutually exclusive or
irreconcilable.
247. In a multi-defendant trial, where a co-defendant’s attorney seeks to “stand in” when
defence counsel for another defendant is absent for a brief period, the judge must
determine on the record that the defendant knowingly and intelligently accepts
substitute counsel on those occasions.
[68]
PART 1PART 1PART 1PART 12222
REVOCATION OF PROBATION
248. Whenever a probationer or a person on supervised release fails to abide by the
conditions of supervision or is arrested for another offence, a revocation hearing may
be ordered.
249. The revocation procedure may be initiated by information given on oath to the
court or at the request of the probation office or the prosecuting authority; and for
this purpose, an order may issue to show cause why probation or supervised release
should not be revoked.
250. For the purpose of the hearing, the court may issue a warrant for his arrest or may, if
the court thinks fit, issue a summons to the defendant and his sureties, if any,
requiring him or them to attend court at such time as may be specified in the
summons (s 459 ACJA).
251. At all stages of the proceedings, the probationer or releasee must be informed of the
right to retain counsel or to request that counsel be appointed.
252. At the revocation hearing, the court should:
(a) Establish for the record that the probationer or releasee, defence counsel, a state
counsel, and a probation officer are present.
(b) Advise the probationer or releasee of the alleged violations by reading or
summarizing the revocation motion.
(c) Ascertain whether the alleged violations are admitted or denied by the
probationer or releasee.
(d) If the violations are admitted:
(i) Ask the state counsel to present the factual basis showing the violations of
the terms of supervision.
(ii) Permit the probationer or releasee, his counsel, the state counsel, and the
probation officer to be heard concerning whether supervision should be
revoked.
(e) If the violations are denied:
[69]
(i) The court should receive evidence presented by the state counsel and the
probationer or releasee.
(ii) Proof beyond a reasonable doubt is not required. To revoke probation, the
court must be “reasonably satisfied” that the probationer has not met the
conditions of probation. Thus, revocation of supervised release requires only
a preponderance of the evidence.
253. Enter the appropriate judgment or order, with the following sentencing options:
(a) If a determination is made not to revoke probation or supervised release:
(i) The original term of probation or probationary release may be extended up to
the maximum term of probation or probationary release that could have been
imposed originally.
(ii) Conditions of probation or probationary release may be modified, enlarged,
or reduced.
(b) If a determination is made to revoke probation:
(i) Sentence the defendant to a term of imprisonment available for the original
offence (s 459(5) ACJA).
(ii) The court may impose any other sentence that was available under the
sentencing provisions at the time of the initial sentencing.
(c) If a determination is made to revoke supervised release:
(i) The court should require the person to serve in prison all or part of the term
of probationary release without credit for time previously served on post-
release supervision.
(ii) If the term of imprisonment imposed is less than the statutorily authorized
maximum, determine whether to re-impose a term of supervised release.
[70]
PART 1PART 1PART 1PART 13333
EXCLUDING THE PUBLIC FROM COURT PROCEEDINGS
254. All trials must be open to the public unless the court finds that no alternative short of
closure will adequately assure a fair trial for the accused. Thus, subject to ss 232 and
260 to 262 ACJA, the room or place in which a trial is to take place under this Act
shall be an open court to which the public generally may have access as far as it can
conveniently contain them (s 259 ACJA).
255. An infant, other than an infant in the arms of parent or guardian, or child shall not be
permitted to be present in court during the trial of a defendant charged with an
offence or during any proceedings preliminary to the trial except he is the defendant
charged with the alleged offence or his presence is required as a witness or otherwise
for the purposes of justice in which event he may remain for so long as his presence is
necessary (s 262 ACJA).
256. For purpose of s 232 ACJA, the court may permit witnesses to be screened in the trial
of the offences mentioned in s 232(4) by shielding the names, addresses, telephone
numbers and identity of the witnesses by receiving their evidence through video link,
permitting the witness to be screened or masked, receiving written deposition of
expert evidence or any other measure that the court considers appropriate in the
circumstance.
257. Rather than full closure of the proceedings to the public, closure may be partial,
where the public is only partially excluded, under the following conditions:
(a) Where a person, who in the opinion of the court, has not attained the age of
eighteen, is called as a witness in any proceedings in relation to an offence
against or any conduct contrary to decency or morality, the court may direct that
all or any persons other than members or officers of the court or parties to the
case, their legal representatives or persons otherwise directly concerned in the
case, be excluded from the court during the taking of the evidence of such person
(s 260 ACJA).
(b) Any order of exclusion shall not, except expressly stated, extend to the exclusion
of bona fide representatives of a newspaper or news agency or to messengers,
clerks and other persons required to attend the court for purposes connected
with their employment. For that purpose, the court shall designate specific places
in the courtroom for such persons.
[71]
(c) Where bona fide media representatives are allowed to observe proceedings, the
court may prescribe how videos or cameras may be deployed in accordance with
the Code of Ethics for Judicial Officers.
(d) The court may screen such bona fide representatives of the media with a view to
establishing their authenticity before allowing them to observe proceedings
otherwise closed to the public.
(e) In any such case of exclusion, the court must state on the records of the court the
grounds for its exclusion decision (s 261 ACJA).
258. Subject to the discretion of the presiding officer under s 259 (2) ACJA, the court may
further consider closing the courtroom to the public if appropriate upon the court’s
own motion:
(a) when the court receives testimony or argument on evidence or other sensitive
information with security implications that is the subject matter of the closed
proceedings;
(b) when the court determines it is necessary to protect a child witness from
substantial psychological harm or when it would result in the child’s inability to
effectively communicate; or
(c) when the law requires closure to protect some phase of a juvenile delinquency
proceeding.
259. The court may observe the following rules and steps in considering the merit of a
closed trial or pretrial proceedings upon motion by a party:
(a) Notice of Motion to Close the Court
The court should ensure that the parties are given notice of the motion.
(b) The Hearing
(i) The court may suo motu close the hearing to receive the preliminary
information.
(ii) The burden is on the applicant seeking closure to show cause.
(iii) The court may allow closure if an overriding interest is likely to be prejudiced
if closure is not granted. Such interests include:
(a) the defendant’s right to a fair trial; and
[72]
(b) the government’s interest in inhibiting disclosure of sensitive
information.
(iv) The court may allow closure if an alternative to closure cannot adequately
protect the overriding interest the applicant is seeking to protect; and
(v) The court may allow closure where it will effectively protect against the
perceived danger.
(c) Decision by the Court
(i) In a pretrial proceeding, when the moving party asserts that the defendant’s
right to a fair trial will be prejudiced if hearings are conducted publicly, the
trial court should consider:
(a) reasonable alternatives to closing the proceeding, and the court must
make findings adequate to support the closure;
(b) the nature and extent of the publicity to date;
(c) the ease of a change of venue;
(d) whether the public already has the information; and
(e) the impact of further publicity on the publicity that has already occurred.
(ii) In deciding whether alternatives to closure can adequately protect the
overriding interest the applicant seeks to protect, the court should consider
changing the venue, granting an adjournment or a severance.
(d) Findings and Order
(i) In deciding to order closure, the court should satisfy itself that:
(a) without closure, there is a substantial probability that the defendant’s
right to a fair trial would be impaired;
(b) steps less drastic than closure would be ineffective in preserving the
defendant’s right to a fair trial; and
(c) closure of the proceedings would achieve the desired goal of protecting
the defendant’s right to a fair trial.
(ii) Where the court finds cause to order closure of the proceedings:
[73]
(a) the findings must be adequate to support an order of closure; and
(b) the findings must be on the record.
(iii) The order of closure shall:
(a) be as narrow as possible;
(b) not be broader than necessary to protect the interest asserted by the
applicant; and
(c) be tailored to ensure that proceedings that are closed encompass no
more than is reasonably necessary to protect the interest asserted by the
applicant.
[74]
PART 1PART 1PART 1PART 14444
ASSET FORFEITURE PROCEDURE
General
260. Generally, no movable property or any interest in an immovable property shall be
taken possession of compulsorily and no right over or interest in any such property
shall be acquired compulsorily except in the manner and for the purposes prescribed
by a law (s 44(1) CFRN, 1999 as amended).
261. A general law may validly provide for the temporary taking of possession of property
for the purpose of any examination, investigation or enquiry (s 44 (2)(k) CFRN, 1999
as amended).
262. Where any proceedings or trial in a criminal case is concluded, the court may make
such order as it thinks fit, for the disposal by confiscation of any movable property or
document produced before it or in its custody or regarding which an offence appears
to have been committed or which has been used for the commission of an offence (s
331 ACJA).
263. Any contemplated seizure or forfeiture should be based on one or more of several
policy objectives, including such as:
(a) Punish an unlawful enterprise;
(b) Deter illicit activity and crimes;
(c) Remove tools used by a criminal, including facilitating property;
(d) Disrupt an illegal organization;
(e) Return proceeds of fraud to the victims; or
(f) Protect the community.
264. Statutes imposing forfeitures are expropriating in nature and are therefore not
favoured and are to be strictly construed in favour of the persons against whom they
are sought to be imposed.
265. The prosecution or the State may apply to the court for an order of forfeiture of an
asset whereby the court authorizes the government to take property from an owner
without compensation.
[75]
266. An order of forfeiture can usually be made with respect to property and interests
in property related to complex financial crime or otherwise, fitting the following
description:
(a) The proceeds of the crime (which includes anything of value obtained as a result
of the crime and property traceable to those assets);
(b) A facilitating property i.e. the property deployed in committing the offence or
used to make the crime easier to commit or the crime harder to detect; and
(c) The property involved in a crime e.g. money in money laundering offence (which
includes the money being laundered and the money and other property that is
comingled with it) (e.g. under ss20, 21, 24-30 EFCC Act (as amended)).
267. In determining whether or not funds deposited in banks were bribes or secret profits
or the proceeds of crime and therefore liable for possible forfeiture, the court may
rely on circumstantial evidence (Federal Republic of Nigeria v. Santolina Investment
Corp., Solomon & Peters and Diepreye Alamieyeseigha [2007] EWHC 437 (Ch.) (U.K.)).
268. Without prejudice to the provisions of any other law permitting the forfeiture of
property, the following shall also be subject to forfeiture under the EFCC Act and no
proprietary right shall exist in them:
(a) all means of conveyance, including aircraft, vehicles, or vessels which are used or
are intended for use to transport or in any manner, to facilitate the
transportation, sale, receipt, possession or concealment of economic or financial
crime except that:
(i) no means of conveyance used by any person as a common carrier in the
transaction of business shall be forfeited under the Act unless it shall appear
that the owner or other person in charge of such means of conveyance was a
consenting party or privy to a violation committed under the Act;
(ii) no means of conveyance shall be forfeited under the Act by reason of any act
established by the owner thereof to have been committed by any person
other than such owner while such means of conveyance was unlawfully in the
possession of a person other than the owner in violation of the criminal laws
of Nigeria or any part thereof; and
(iii) no means of conveyance shall be forfeited under the Act to the extent of an
interest of an owner, by reason of any act established by that owner to have
[76]
been committed without the knowledge, consent or willful connivance of
that owner (s25 EFCC Act).
(b) all books, records, research materials and data used or intended to be used in
violation of any provision of the EFCC Act;
(c) all monies, negotiable instruments, securities or other things of value furnished
or intended to be furnished by any person in exchange for any illegal act or in
violation of the Act or all proceeds traceable to such an exchange, and all monies,
negotiable instruments and securities used or intended to be used to facilitate
any violation of the Act;
(d) all real property, including any right, title and interest (including any leasehold
interest) in the whole or any piece or parcel of land and any improvements or
appurtenances which is used or intended to be used in any manner or part to
commit, or facilitate the commission of an offence under the Act (s 25 EFCC Act).
269. Forfeiture may be by way of civil forfeiture or criminal forfeiture.
270. Criminal forfeiture, also referred to as an in personam action because they are
against a defendant, is pursued as part of a criminal case against one or more persons,
and the forfeiture of assets is considered to be part of the punishment for the crime.
271. Civil forfeiture is also referred to as an in rem action because it is an action filed
against the property itself rather than a person; like criminal forfeiture, it is a judicial
process, but does not require a criminal conviction.
272. When application for forfeiture is made before a court, in the consideration of such
an application, the court may require satisfaction with questions such as:
(a) What is the criminal violation?
(b) Is there a forfeiture provision for the crime?
(c) What property is forfeitable under the statute?
(d) What evidence specifically ties the asset to the crime or violation? Was the
property acquired with proceeds obtained from the illicit activity? Is the asset
itself the proceeds of the illicit activity? What is/was the role of the asset in the
commission of the crime?
(e) How should the property be (or how was it) seized?
[77]
(f) What is the value of the property?
(g) Where is the property located?
(h) Is the property liable to depreciation and would require management for its
preservation? What is the cost of maintaining the asset pending the forfeiture
action?
(i) Who owns or controls the asset (or has liens or interests)? Who owns the
property, both on paper (title) and in reality (control)?
(j) Whether criminal proceedings have commenced or are about to commence.
273. A court may make a preventive order for the seizure and confiscation or forfeiture of
any instrument, material or thing which there is reason to believe are provided or
prepared, or being prepared, with a view to the commission of an offence triable by
the court (s 333 ACJA).
Interim forfeiture
274. Every order for interim forfeiture of property shall be guided by a need to
maintaining or preserving the seized property, hence ensure all property received for
forfeiture:
(a) is reasonably secured and properly stored to prevent waste and preserve its
condition.
(b) is checked to determine if the property has been stolen.
(c) is retained in the same manner as evidence until forfeiture is finalized or the
property is returned to the claimant or the person with an ownership interest.
(d) is not used unless the forfeiture action has been completed.
275. An exparte application may be made to the court for the purpose of obtaining an
interim forfeiture order in the following circumstances:
(a) seized assets or properties of any person arrested for an offence under the EFCC
Act (s 29(a) EFCC Act);
(b) Any asset or property which has been seized by the Commission under the EFCC
Act (s 29(b) EFCC Act).
(c) Money in the bank account of a person who allegedly made the money through
the commission of an offence under the EFCC Act, Money Laundering Act, the
[78]
Advance Fee Fraud and Other Related Offences Act, the Failed Banks (Recovery
of Debt) and Financial Malpractices in Banks Act, the Banks and Other Financial
Institutions Act, the Miscellaneous Offences Act and any other law or regulation
relating to economic and financial crimes, including the Criminal Code and Penal
Code (s 34 EFCC Act).
276. The standard of proof required in an interim application shall be less stringent than
the onus of proof in a criminal or civil trial. The applicant may be required only to
make out a prima facie case (s 29(b) EFCC Act).
277. Where an interim order is revoked by a Court pursuant to the discharge or acquittal
of a defendant, all assets and properties of the defendant concerned, which were the
subject of an interim order of forfeiture regarding those proceedings, shall be released
to him (s 33(3) EFCC Act).
278. Notwithstanding that a defendant was discharged or acquitted, the court may
nevertheless make an order confirming the interim order of forfeiture if such
confirmation is considered just, appropriate or reasonable in the circumstances (s
33(1) EFCC Act) or a discharge was merely given on technical grounds (s 33(2) EFCC
Act).
279. Where any property regarding which an offence appears to have been committed or
which appears to have been used for the commission of an offence is produced before
a court during an inquiry or a trial, the court:
(a) may make such order as it thinks fit for the proper custody of that property
pending the conclusion of the proceedings or trial; and
(b) where the property is subject to speedy decay, may, after recording such evidence
as it thinks necessary, order it to be sold or otherwise disposed of, and the
proceeds dealt with as the court may direct (s 330 ACJA).
280. Where the court orders the forfeiture or confiscation of any property but does not
make an order for its destruction or for its delivery to any person, the court may
direct that the property shall be kept or sold and that the property, if sold, the
proceeds of the sale be held as it directs until some person establishes to the court’s
satisfaction, a right to the property, provided however that:
(a) Where no person establishes a right within six months from the date of forfeiture
or confiscation of the property, the proceeds of the sale shall be paid into the
[79]
Consolidated Revenue Fund of the Federation or any other appropriate account,
as the case may be.
(b) Where an order is made as stated above in a case in which an appeal lies, the
order shall not, except when the property is livestock or is subject to speedy and
natural decay, be carried out until the period allowed for presenting the appeal
has passed or, when the appeal is entered, until the disposal of the appeal (s 332
ACJA).
281. Where the police seized any property during an arrest or while conducting an
investigation which is alleged or suspected to have been stolen or found in
circumstances which create a suspicion of the commission of an offence, the
following procedure shall apply:
(a) The police shall within a period not exceeding 48 hours of the taking of the
property or thing, report to a court;
(b) Upon receiving such report from the police, the court shall make an order in
respect of the disposal of the property or its delivery to the person entitled to its
possession.
(c) Where the person entitled to the possession of property is unknown, the court
may detain it and shall issue a public notice specifying the articles of which the
property consists and requiring any person who may have a claim to it, to appear
before the court and establish his claim within six months from the date of the
notice (s 337 ACJA).
(d) Where no person within the period of six months comes forward and establishes
his claim to such property and where the person in whose possession the
property was found is unable to show that it was lawfully acquired by him, the
property shall be at the disposal of the court and may be sold in accordance with
the order of the court and the proceeds forfeited to the Federal Government of
Nigeria (s 338(1) ACJA).
(e) At any time within six years from the date of the property coming into the
possession of the police, the court may, direct the property or the proceeds of the
sale of the property to be delivered to any person proving his title to it, on
payment by him, of any expenses incurred by the court in that matter (s 338(2)
ACJA).
[80]
(f) Where the person entitled to the possession of property referred to in the
foregoing provisions is unknown or absent and the property is subject to speedy
decay or, for the benefit of the owner, the court may, at any time direct it to be
sold and, as nearly as may be practicable, apply the net proceeds of the sale as
earlier set out (s 339 ACJA).
282. For purposes of granting an application for interim forfeiture or for considering the
interest of any claimant in property in respect of which an order of interim forfeiture
has been made and determining whether or not such claim shall be granted rather
than making an order of final forfeiture, the following considerations may guide the
court:
(a) The claimant shall have the burden of proving that he is an innocent owner by a
preponderance of the evidence.
(b) With respect to a person having an existing interest in a property at the time the
illegal conduct giving rise to interim forfeiture order, an ‘innocent owner’ must
show that:
(i) He did not know of the conduct giving rise to the interim forfeiture; or
(ii) Upon learning of the conduct giving rise to the forfeiture, he did all that
reasonably could be expected under the circumstances to terminate such use
of the property, demonstrated by:
(a) giving timely notice to an appropriate law enforcement agency of
information that led the person to know the conduct giving rise to a
forfeiture would occur or has occurred; and
(b) in a timely fashion revoking or making a good faith attempt to revoke
permission for those engaging in such conduct to use the property or
took reasonable actions in consultation with a law enforcement agency to
discourage or prevent the illegal use of the property.
(iii) To demonstrate such reasonable steps, a person is not required to take steps
that the person reasonably believes would be likely to subject any person
(other than the person whose conduct gave rise to the forfeiture) to physical
danger.
(c) With respect to a property interest acquired after the conduct giving rise to the
interim forfeiture has taken place, an innocent owner must show that, at the time
he acquired the interest in the property:
[81]
(i) he was a bona fide purchaser or seller for value (including a purchaser or
seller of goods or services for value); and
(ii) he did not know and was reasonably without cause to believe that there was
earlier conduct pertaining to the property that was illegal and which
subsequently made it subject to forfeiture.
(d) Whether or not a claimant gave nothing of value in exchange for the property shall not be a sole consideration, for adjudging it liable to forfeiture, if:
(i) the property is the primary residence of the claimant, provided the value of such real property is not extravagant but of a character necessary to maintain reasonable shelter in the community for such claimant and all dependents residing with the claimant;
(ii) depriving the claimant of the property would deprive the claimant of the means to maintain reasonable shelter in the community for the claimant and all dependents residing with the claimant;
(iii) the property was not, and is not traceable to, the proceeds of any criminal offence; and
(iv) the claimant acquired his or her interest in the property through marriage, divorce, or legal separation, or the claimant was the spouse or legal dependent of a person whose death resulted in the transfer of the property to the claimant through inheritance or probate.
(e) No assertion of an ownership interest in contraband or other property that is illegal to possess may be recognised.
283. Where the court determines that an innocent owner has a partial interest in property otherwise subject to forfeiture, or a joint tenancy or exclusive ownership in such property, the court may, in making its earlier interim forfeiture order final, enter an appropriate order:
(a) severing the property;
(b) transferring the property to the Government with a proviso that the Government compensate the innocent owner to the extent of his ownership interest once a final order of forfeiture has been entered and the property has been reduced to liquid assets; or
(c) permitting the innocent owner to retain the property subject to a lien in favour of the Government to the extent of the forfeitable interest in the property.
284. For clarity, the term ‘owner’ means a person with an ownership interest in the specific property sought to be forfeited, including a leasehold, lien, mortgage,
[82]
recorded security interest, or valid assignment of an ownership interest but does not include:
(a) a person with only a general unsecured interest in, or claim against, the property or estate of another;
(b) a bailee unless the bailor is identified and the bailee shows a colourable legitimate interest in the property seized; or
(c) a nominee who exercises no dominion or control over the property.
285. For the purpose of determining ownership of assets liable to forfeiture, the court may bear in mind incidence of ‘disguised ownership’ such as where assets might be:
(a) owned by a family member or associate of the target, but held by them for the benefit of the target;
(b) owned by a corporate entity or trust, either owned or indirectly controlled by the target; or
(c) gifted by the target to the family member, associate or company.
286. To draw the inference that assets owned by a third party are actually beneficially owned or controlled by the target, the court may look into the transactional activity surrounding the asset and to consider a number of factors, including:
(a) the amount paid for the asset (market value), including whether the mortgage responsibility was transferred with the title;
(b) the source of funds used to purchase the asset;
(c) the person paying the expenses and outgoings associated with the asset;
(d) the capacity or resources of the owner of the asset to purchase or maintain the asset; and
(e) the person occupying, possessing or controlling the asset.
287. The court may make an order conditionally releasing to a claimant a property which is the subject-matter of an interim order of forfeiture if:
(a) the claimant has a possessory and not merely a reversionary interest in the property;
(b) the claimant has sufficient ties to the community to provide assurance that the property will be available at the time of the trial;
(c) the continued possession by the Government pending the final disposition of forfeiture proceedings will cause substantial hardship to the claimant, such as preventing the functioning of a business, preventing an individual from working, or leaving an individual homeless;
[83]
(d) the claimant’s likely hardship from the continued possession by the Government of the seized property outweighs the risk that the property will be destroyed, damaged, lost, concealed or transferred if it is returned to the claimant during the pendency of the proceeding; and
(e) the property under interim forfeiture:
(i) is not contraband, currency, or other monetary instrument, or electronic funds unless such currency or other monetary instrument or electronic funds constitutes the assets of a legitimate business which has been seized;
(ii) is not to be used as evidence of a violation of the law;
(iii) by reason of design or other characteristic, is not particularly suited for use in illegal activities; or
(iv) is not likely to be used to commit additional criminal acts if returned to the claimant.
288. In making an order of conditional release, the court may enter any order necessary to ensure that the value of the property is maintained while the forfeiture action is pending, including:
(a) permitting the inspection, photographing and inventory of the property;
(b) requiring the claimant to enter into a bond with or without sureties or fixing a bond or take out banker’s guarantee;
(c) requiring the claimant to obtain or maintain insurance on the subject property; and
(d) requiring the Government to place a lien against the property or file a lis pendens to ensure that the property is not transferred to another person.
289. For the purpose of ensuring the safety and value of the assets in respect of which an order of interim forfeiture is to be made, the court may accompany the order of interim forfeiture with a preservative order appointing a manager of those assets, for the duration of the period of interim forfeiture, with all or any of the following powers:
(a) authority to pay all necessary costs, expenses and disbursements connected with the restraint or seizure and the management of the assets;
(b) authority to buy and sell seized or restrained assets that are in the form of shares, securities, cars, precious metals, jewels and artwork or other investments;
(c) authority to insure assets under control;
(d) in the case of a business, authority to operate the business, including to employ or terminate the employment of people in the business, hire a business manager if required and make decisions necessary to manage the business prudently, including sale of the business or any trade stock of perishable nature or susceptible to depreciation;
[84]
(e) in the case of assets that represent shares in a company, authority to exercise rights in respect of those shares as if the asset manager were the registered holder of those shares;
(f) authority to pay salaries of the asset manager and people involved in asset management, in accordance with a defined scale or regulation or in accordance with an order of the court that is subject to full disclosure and mandatory audit;
(g) to maintain detailed records of the assets and any transactions involving them, including the manager making a detailed inventory and description of the assets and their condition, and providing subsequent updates; and
(h) such other incidental functions as the court may from time to time direct the manager to perform.
Freezing Order
290. Rather than seek for an interim forfeiture, an application may be made for a freezing order.
291. Freezing order means an order that leaves physical possession of the asset with the owner or a third party (such as a financial institution) but imposes specific terms and conditions on their use of the asset, or prohibits any right to sell, transfer, lease, destroy or otherwise diminish the value of the asset while the order is in force.
292. Where at any stage of a trial, the court is satisfied that a prima facie case has been made out against a person, the court may by an order and for such time as it may direct or require:
(a) prohibit any disposition of property, movable or immovable, by or on behalf of that person, whether or not the property is owned or held by that person or by any other person on his behalf, except to such extent and in such manner as may be specified in the order;
(b) direct the manager of the bank or the head office of the bank where the person has an account or is believed to have account:
(i) to stop all outward payments, operations or transactions (including any bill
of exchange) for the time being specified in the order; or
(ii) to supply any information and produce books and documents, in respect of
the account of that person; and
(c) where necessary or expedient, vest in the court or otherwise acquire the custody
of any property, movable or immovable, of the person, for the preservation of the
property, pending the determination of the proceedings (s 16 Advance Fee Fraud
and Other Fraud Related Offences Act).
[85]
293. An order under s 16(1) (supra) shall have effect as specified therein, but the order may
at any time thereafter be varied or annulled by the High Court.
Final Forfeiture Order
294. An interim order of forfeiture may be made absolute in the following
circumstances:
(a) Under the ACJA, where no one has been able to establish ownership to such
property despite the publication of requisite notices and the lapse of time.
(b) The assets and properties acquired or obtained as a result of a crime committed
under the EFCC Act in respect of which an interim forfeiture order was earlier
granted and the owner was subsequently convicted (s 30 EFCC Act).
(c) The assets and properties acquired or obtained as a result of a crime committed
under any law in respect of which an interim forfeiture order was earlier granted
and the owner was subsequently convicted.
295. Generally where a claimant of innocent ownership has not satisfactorily discharged
the burden of proof cast on him in respect of property over which an order of interim
forfeiture or a freezing order has been made, such an interim order of forfeiture or a
freezing order may be made absolute.
Forfeiture upon Conviction
296. The Court in imposing a sentence on any person shall order, in addition to any
other sentence imposed pursuant to the EFCC Act or any other relevant Act, that the
person forfeit to the Federal Government:
(a) all the assets and properties which may or are the subject of an earlier interim
order of the Court;
(b) any asset or property confiscated, or derived from any proceeds the person
obtained, directly or indirectly, as a result of the offence for which he is
convicted, whether disclosed earlier or not; or
(c) any of the person’s property or instrumentalities used in any manner to commit
or to facilitate the commission of such offence (s 20 EFCC Act).
297. Under the ICPC Act, the court shall make an order for the forfeiture of any property
which is proved to be the subject matter of the offence or to have been used in the
commission of the offence where the offence is proved against the accused (s 47(1)(a)
ICPC Act).
[86]
298. The order of forfeiture of property cannot be at large to include property acquired
before the offence was committed or property acquired by means of loan, inheritance
etc. unless otherwise provided by a statute (Abiodun v. FRN (2008) LPELR-8574(CA);
s 7(1) Robbery and Firearms (Special Provisions) Act).
Forfeiture Upon Acquittal or Discharge
299. Notwithstanding a discharge or acquittal, a court may nevertheless order the
forfeiture of assets under the following provisions:
(a) Under the EFCC Act, where a defendant was discharged but the discharge is
ordered on technical grounds (s 33(2) EFCC Act).
(b) Under the ICPC Act, if the court is satisfied that:
(i) the property is proved to be the subject matter of the offence or to have been
used in the commission of the offence;
(ii) that the accused is not the true and lawful owner of such property; and
(iii) that no other person is entitled to the property as a purchaser in good faith
for valuable consideration (s 47(1)(b) ICPC Act).
Forfeiture without Conviction
Under the ACJA
300. Where it is shown that a summons or warrant has been issued for the appearance
of a suspect but the suspect disobeyed such summons or warrant, a Judge or a
Magistrate may undertake the following procedure:
(a) Order the attachment of any property, movable or immovable or both, belonging
to such a suspect (s 80 ACJA).
(b) Make such an order which shall authorize a public officer named in it to attach
any property belonging to a suspect named in the order as the owner of the
property within the area of jurisdiction of the Judge or Magistrate by seizure or in
any other manner by which for the time being the property may be attached by
way of civil process (s 81(1) ACJA).
(c) Give time for such suspect to appear and if he does not, the property under
attachment shall be at the disposal of the court (s 81(2) ACJA).
[87]
(d) Any such property under attachment shall not be sold until the expiration of
three months from the date of the attachment unless it is subject to speedy decay
or the Judge or Magistrate considers that the sale would be for the benefit of the
owner, in either of which cases the Judge or Magistrate may cause it to be sold
whenever he thinks fit (s 81(3) ACJA).
(e) Such property attached shall, so far as it has not been sold, and if sold, the net
proceeds of the whole or of any part of it which has been sold, after satisfying
from the proceeds all costs incurred in consequence of the attachment, be
delivered to the suspect, whose property is or has been at the disposal of the
Court under s 80 of the ACJA, where the suspect within one year from the date of
the attachment, appears voluntarily or being arrested is brought before the Court
and he proves to its satisfaction that he:
(i) did not abscond or conceal himself for the purpose of avoiding execution of
the warrant; and
(ii) had no notice of the public summons or warrant as to enable him to attend
within the time specified therein (s 82(1) ACJA).
(f) Where after one year from the date of attachment, the suspect whose property is
attached or has been at the disposal of the court does not appear voluntarily, the
property or the net proceed of its sale shall be forfeited to the Federal or State
Government as the case maybe (s 82(2) ACJA).
301. Where a thing seized under a search warrant is of a perishable or noxious nature, it
may be disposed of in such manner as the court may direct (s 154 ACJA).
Under the Advance Fee Fraud etc. Act
302. A court may, without adjudging anyone guilty or convicted, make an order of
forfeiture in the following circumstances:
(a) where any property has come into the possession of a relevant law enforcement
agency as unclaimed property; or
(b) any unclaimed property is found by any officer of a relevant law enforcement
agency to be in the possession of any other person, body corporate or financial
institution; or
[88]
(c) any property in the possession of any person, body corporate or financial
institution is reasonably suspected to be proceeds of some unlawful activity
under the Advance Fee Fraud and Other Related Offences Act, the Money
Laundering Act, the Economic and Financial Crimes Commission Act or any
other law enforceable under the Economic and Financial Crime Commission Act
(s 17(1) Advance Fee Fraud and Other Fraud Related Offences Act).
303. The High Court shall, upon application made by a relevant law enforcement agency,
its officers, or any other person authorized by law and upon being reasonably
satisfied that such property is an unclaimed property or proceeds of unlawful activity
under any of the above Acts make an order that the property or the proceeds from
the sale of such property be forfeited to the Federal Government of Nigeria (s 17(1)
AFFAOROA).
304. The High Court shall not make an order of forfeiture of the property or the
proceeds from the sale of such property to the Federal Government of Nigeria until
such notice or publication as the High Court may direct has been given to the public
or made for any person or a corporate or financial institution in whose possession the
property is found or who may have interest in the property or claim ownership of the
property to show cause why the property should not be forfeited to the Federal
Government of Nigeria (s 17(2) AFFAOROA).
305. Application for forfeiture without Conviction shall first be made by a motion ex parte
seeking for:
(a) An interim forfeiture order of the property concerned; and
(b) For the giving of the requisite notice or publication to the public or any person or
body in whose possession the property is found or who may have interest in the
property or claim ownership of the property to show cause why the property
should not be forfeited (s 17(3) AFFAOROA).
306. At the expiration of 14 days or such other period as the High Court may reasonably
stipulate from the date of the giving of the notice or making of the publication for
anyone to show cause why such assets may not be forfeited, an application shall be
made by a motion on notice for the final forfeiture of the property concerned to the
Federal Government of Nigeria (s 17(4) AFFAOROA).
[89]
307. Property, for the purpose of forfeiture without Conviction, includes assets whether
movable or immovable, money, monetary instruments, negotiable instruments,
securities, shares, insurance policies, and any investments (s 17(4) AFFAOROA).
Under the ICPC Act
308. Where property is seized under the ICPC Act but there is no prosecution or
conviction for an offence under this Act, the chairman of the commission may, before
the expiration of twelve months from the date of the seizure, apply to a Judge of the
High Court for an order of forfeiture of that property if he is satisfied that such
property had been obtained as a result of or in connection with an offence under
section 8 to 19 ICPC Act.
309. The Judge to whom an application is made under the foregoing provisions shall
direct to be published a notice in the Gazette and in at least two newspapers
circulating in Nigeria, which shall be in English language, calling upon any person
who claims to have an interest in the property to attend before that court on a date
specified in the notice, to show cause why the property should not be forfeited to the
Government.
310. The Judge shall make an order for the forfeiture of the property, if he is satisfied:
(a) that the property is the subject-matter of or used in the commission of an offence
under the ICPC Act: and
(b) there is no purchaser in good faith for valuable consideration of the property.
311. Any property in respect of which no application is made under the foregoing
provisions shall, after the expiration of twelve months from the date of its seizure, be
released to the person from whom it was seized (s 48 ICPC Act).
312. A person interested may by a four-part test show innocent ownership as follows:
(a) The person acquired an interest in the property before or during the criminal act.
(b) The property was acquired legally, even if subsequent to the criminal act.
(c) The owner did not or could not have known of the illegal activity.
(d) The owner was not married to the person committing the illegal act (FRN vs.
Ikedinwa & Anor. (2013) LPELR-21120(CA)).
[90]
313. A claim of ownership shall:
(a) identify the specific property being claimed; and
(b) state the claimant’s interest in such property.
[91]
PART 1PART 1PART 1PART 15555
CASE MANAGEMENT
Case categorization
314. In order to clear the court’s case load, the following practices are suggested:
(a) Have staff identify cases into categories of 9-10 years on trial, 7-8 years on trial, 5-
6 years on trial, 3-4 years on trial, and 1-2 years on trial and then endeavour to
eliminate cases that have languished in preference to later cases and this shall be
taken into account in taking dates for adjournment.
(b) Prioritize clearing of older cases so that Judges will know what they have on the
caseload.
(c) Be conscious and promptly address where prosecutors are aware they have a non-
viable case, but do not want to move to dismiss it because they would be
responsible for the dismissal and consequently abandon the case and leave it to
clog caseloads and court calendars.
(d) Require the prosecutors to go on record and commit whether they have
abandoned the case or they will go forward and cause them to be responsible for
the decision and not foist it off on the Judge.
Regular Coordination Meetings
315. Regular coordination meetings should be held between the FCT Chief Judge, other
Judges and Magistrates, and designated representatives of the Prosecution and the
Bar i.e. Bar/Bench Forum.
316. Such meetings shall address and resolve issues such as cases lingering, prosecutors
not showing up for hearings, disciplinary problems, holding both prosecutors and
defence counsel responsible for stalling, unethical tactics, new initiatives, and explore
general ideas on how to make the system work better for all concerned.
317. Such meetings shall address and aid the identification of cases that prosecutors no
longer intend to pursue and agree that they will be dismissed to clean up everyone’s
caseload lists and what to do about them.
Judges or Magistrates Master Court Calendar
318. Each Judge or Magistrate should maintain a master court calendar for his court.
[92]
319. Each time a case is received or a hearing is scheduled, it should immediately be
entered on the calendar.
320. The court shall make the master calendar a public document and at the very least
accessible by attorneys.
321. When a Judge will not sit on a designated date the affected stakeholders should be
notified by the registrar as early as possible.
322. Pursuant to Order 12 of the Practice Directions on the Implementation of the ACJA
2017, prior notification shall be given to litigants and counsel of the fact that the court
would not be in session in the manner and circumstances there prescribed.
323. Except for cases of interlocutory nature or which, by the proof of evidence, may not
require extended trial period, two years to the retirement of a Judge, new cases may
not be assigned to such Judges due to retire.
324. Judgments should be of moderate length provided they shall be sufficient to resolve
all points of fact and law arising.
FCT Case Statistics
325. Every Judge or Magistrate shall conduct his case and manage his docket in such a
manner that statistics shall be easily produced with respect to:
(a) number of cases per judge;
(b) break down of cases by category;
(c) when cases were filed;
(d) when cases were dismissed;
(e) when conviction was obtained; and
(f) supply statistical report to Chief Judge.