STER LAW REVIEW ON THE PROCESS OF CRIMINAL PROCEEDINGS IN NIGERIA WITH REGARD TO SEXUAL AND BASED VIOLENCE-SGBV
Procedure for Instituting Criminal Proceedings: (SGBV cases)
How to write Police Report.
. The survivor can submit to testing for forensic evidence after the assault before commencing to the Police station. In Nigeria, States like Lagos State have medical forensic examination centres, where samples can be stored and preserved. An example of such a centre is Mirabel Centre.
In addition, hospitals like the Lagos State University Teaching Hospital also collect samples of evidence for survivors.
It is important that the collection of evidence is submitted to the Police. Ensuring you have extra documented copies of the containing evidence to avoid any form of delay that could occur during the investigations, by the Police.
While at the Police Station, the Adult will write a statement of the Assault. It is preferred the survivor goes with an agent ie NGO, lawyer or legal guardian in case of a child. This will give moral support to the survivor, and avoid any form of intimidation faced at the Police Station.
Where the legal guardian of the child is not available or refuses to complain of abuse, a child welfare officer who is convinced of the assault on the child can file a police report without the presence of a legal guardian especially if it is of serious nature.
A teacher who witnessed the assault can also file a report at the police station. An investigation commences by the police.
The police report should be precise and clear in writing. It must state the nature of the crime committed, time and date if possible when committed. The name of the accused person or persons who committed the crime should be indicated.
When writing a police report, the complainant should state the events and with permission, a police report can be written by a police officer, on behalf of the complainant. However, it is preferable the complainant writes the police report willingly with a legal representative present.
Laws governing the conduct of criminal proceedings in Nigeria
Nigerian operates a federal system of government with 36 states. As such, different regions or states will have their own laws governing criminal proceedings. The laws governing criminal proceedings in Nigeria are as follows:
– Criminal Procedure Code (CPC) (applicable in the Northern states of Nigeria).
– Criminal Procedure Act (CPA) (applicable in the Southern states of Nigeria).
– Administration of Criminal Justice Act (ACJA) (applicable in Abuja).
– Administration of Criminal Justice Laws (ACJL) which are domesticated versions of the ACJA applicable in states like Lagos, Anambra, Adamawa, etc.
– Evidence Act.
– The 1999 Constitution of the Federal Republic of Nigeria (The Constitution).
– The Police Act.
– Case law.
How the Police decide to arrest/ how arrest is made:
Cases in a court of Summary Jurisdiction (Magistrate court) are initiated by the Police. See the case of Olusemo v. The COP (1988) 11 NWLR Pt 575 at 547, the Court of Appeal gave a decision allowing the Police to represent the State on higher courts.
Summary jurisdiction refers to the court of the first instance.
Section 66(1) of the Police Act 2020 says that only Police can institute criminal proceedings.
The Police in most instances will arrest the accused or offender of the sexual offence. The Police officer can actually touch or confine a person unless this person gives submission by word or action. The arrest must constitute confinement of the accused except the person submits to custody. See the case of Sadiq v. State (1982) 2 NCR 142.
The ACJL of Lagos State says that in the course of arrest, there should be no unnecessary restraint. The person arrested shall not be handcuffed, or subject to any unnecessary restraint except it is necessary for the safety of the person arrested. See R v. Ogunbodede (1959) 1 W..R.N.L.R 27. See R v. Dangar ( 1944) 10 W. A. C. A 225.
The Police can arrest with an arrest warrant. This arrest warrant is issued by a justice of the peace (private persons/mitigators), senior police officer and magistrate.
Also, where it has been reasonably believed that the arrest warrant has been issued from a court of competent jurisdiction the police can arrest.
The Police can arrest the offender without a warrant if the offender is caught during the commission of a crime, and it was seen to be no other way that the crime could be prevented.
The Police can also arrest without an arrest warrant based on reasonable suspicious grounds or where it is perceived a person is obstructing the investigations.
The Police are expected to inform the accused arrested of the cause of the arrest. This is except he or she is the offender, was caught during the commission or when trying to escape.
The ACJL of Lagos State and the ACJA further compel the Police to read the accused their rights. It compels the Police to say to the accused that he or she has the right to remain silent or avoid answering any questions without a legal practitioner and that before writing a statement, a council will be provided, of not available. It also states that the police officer should inform the accused of their right to apply for legal representation for the accused from the office of the public defender, legal counsel or any such agency. The right to legal representation for an accused is also provided for in the Constitution.
Who else can arrest?
A judge and magistrate can arrest without a warrant if the crime committed is within their judicial division.
A Private citizen has the power to arrest without a warrant if the person had seen to have committed an indictable offence or suspecting a person to have committed a felony or misdemeanour. Therefore, a private citizen can arrest an offender for sexual and gender-based violence offences given that they are usually classified as felonies or misdemeanours.
Where a private person is arrested without a warrant, must dispatch the accused to the nearest police station preferably to a police officer.
The process of getting the case to court after arrest.
After the arrest, the police officer may search such accused and place in custody all items found on him. This is provided that these items are returned if that person gets bail. There are also provisions for a woman to be searched by another woman.
The Police has the right with an arrest warrant to search the vicinity where the accused is reasonably expected to hide. It could be another location, i.e another house or place. See the Criminal Procedure Act.
After arrest, the Police is also expected to carry out a search if necessary with a search warrant issued. This could be the search of premises where the accused person resides if there are reasonable signs of suspicion that the premises were used to commit crimes.
The CPC says a search with a warrant must be executed by 2 respectable inhabitants if in the neighbourhood to be summoned by the person executing the search. There are also general provisions that if it is a place occupied by women in purdah, they are allowed to withdraw if they are not the object of the arrest. Notice is not necessary if the police officer is also a woman.
A search warrant should be in writing by a Justice or Magistrate. The search warrant is constituted if there is the belief that there is evidence of property for the commission of a crime or for use as a means of committing a crime. Before the police officer exercises this power, he must inform the person of his suspicion or belief and give grounds for this belief. See Onuorah v. COP (1960) WRLR 10. The search warrant is issued upon information on oath or affirmation that the person is telling the truth and it must be in writing.
It may be issued on any day including Sunday and public holidays. It can be between 5 am to 8 pm.
A police officer can break in with reasonable force to get to a person who may have been unlawfully detained during the commission of a crime.
The Police Act 2020, says a search warrant may be instituted by a senior police officer in certain circumstances. The CPA and ACJL of Lagos state say only goods mentioned in the search warrant may be seized but can seize any other item discovered to be acquired wrongfully in the course of the search. Even if the evidence is obtained illegally, it can be seen as admissible if relevant. See Evidence Act.
Anyone that set in motion a complaint that the accused person committed an offence and which resulted in a search warrant. If the claims turned out to be false, the person is liable for malicious prosecution. However, this is based on whether there were sufficient grounds to suspect the accused. See Bayo v. Ahemba (1992) 8 NWLR Pt 247 @ 104.
Where the issue of an arrest warrant is to an accused not within jurisdiction or that the offender absconded. There will be a need for substituted service on the accused.
Substituted service is given where ordinary service is not practicable and in this instance, it will be when the accused is not within jurisdiction or cannot be found. A copy will be affixed on the premises of the accused. A public summons arises where the accused has absconded. There will be a publication indicating the accused person is to appear within not less than 30 days and after which publication is read publicly. A copy will be affixed at the last house or residence where the accused person was last found.
Receipt must be acknowledged by the accused signing on a duplicate of the summons in the case of ordinary service. Refusal to sign may lead to the accused being detained or committed for the next 14 days.
There is also served outside the jurisdiction where the summons will be sent to a court in whose jurisdiction the accused is resident. The warrant must be signed by a Magistrate and give directions to be executed within that State. Where there are no sufficient grounds, may refuse to endorse. See Police v. Apampa suit no 42/ 1968.
Where the warrant is irregular due to error, or any illegality invalidates the jurisdiction of the Magistrate to try the offender. See Ikolie v. Police (1959) 4 FSC 125.
After arrest, the Police is not expected to detain the accused without an arrest warrant, for more than 24 hours if it is not a capital offence. In this instance rape is not a capital offence. The accused person must be charged. The Police must inquire into the case and may grant bail to the accused even when there is no recognisance of sureties. This is when it is not practicable to bring the accused person before a judge or Magistrate within 24hours.
*Bail: A bond signed by a surety/guarantor with an obligation to ensure attendance of an accused before the police or court.
If the accused is detained for more than 24hours, there is a need for the legal representation or family and relations, to be notified of the issue immediately after the arrest of the accused. See section 35(3) of the Police Act 2020.
If the suspect/accused is detained or arrested for more than 24 hours, notification to the court should be made by legal representation or any family member. The notification could be oral or in writing. The court of competent jurisdiction will determine whether the accused person is entitled to bail. See s. 64(1) and 64(3) of the Police Act.
The Police must not subject the Accused to any manner of inhumane treatment or torture. See section 37 of Police Act 2020, The Constitution (right to dignity of the human person).
The statement of the accused should be taken willingly. See section 60(1) of the same act. The statement must be done with family members or legal Practitioners. See also section 60(3) of the same Police Act.
Section 68(1) of the Police Act says that after the arrest the Police is mandated to collect fingerprints, or any form of identification, from the accused.
Where the suspect refuses to submit, the Police will go to court to demand that the suspect should submit to testing. See section 68(3) of the same Act.
Police can report to the Attorney General on the nature of cases. See s. 32 of the same Police Act.
The Police allow Private investigators under section 4(i) of the Police Act, for assistance.
Section 69(1) says the Police Officer will be allowed to give an account of all arrests made without a warrant to the Magistrate whether the suspect or accused has received bail or not.
An offence not punishable with the death penalty is bailable. Rape for example is a bailable offence. The accused person may be detained for more than 24 hours where the investigation is pending and not yet completed. An accused person is not expected to remain within police custody for 48 hours without charge. Bail can arise where an accused person is granted such bail by the court, a convict can be granted bail while waiting for trial. See s. 35 of the 1999 constitution, Eda v. COP ( 1982) 3
Granting bail by the court depends on whether the offence is simple, serious, or a capital offence. A magistrate cannot grant bail in respect of capital offence. See Olugbui v. COP ( 1970) 2 All NLR 1.
Exception: Where it is proved through the proof of evidence that it is not a capital offence, bail is granted at the discretion of the Magistrate.
Charge /Arraignment to the court of the accused
On ending the investigation after arrest, if there is reasonable evidence, the accused person will be charged to court by the police. There are considerations on how charges are given.
There are rules guiding charges;
A charge must not be ambiguous. It must be clear enough, as having adequate information about the accused, a notice of the offence. See Enahoro v. Queen (1965) NMLR 265; see 153 CPA. Errors on the charge will invalidate the charge or lead the court to set aside any conviction. See AG Federation v. Clement Isong ( 1986) 1 QUR
A court shall not entertain more than one offence ie cannot accept duplicity. See Zikeke v. Police 10 WACA 363.
A charge is a statement of offence or offences of which the accused has committed in arraignment proceedings before a court. In the Northern part of Nigeria, a charge is called information.
*Arraignment: a process of initiating criminal proceedings based on a complaint.
What could happen in court (During trial)
During the trial, the Court Proceedings must be open to the public.
Section 36 of the 1999 Constitution provides for all criminal proceedings to be open court. There are exceptions if:
- The public is excluded for public interest
- Where the accused person is a minor
- Where it is expressed by law
- For the interest of safety, public order and welfare of infants.
Presence of Accused and Complainant at Court
During the trial, the accused person must be present during the trial. Exceptions are if the offence attracts 6 months imprisonment or if the person has confessed to the crime.
The complainant must be in court after the time and notice of court hearing. Failure of which could discharge the accused person
Right of counsel shall be available for prosecution and defence. See Josiah v. The State. ( 1985) 2 NWLR Pt 1.
There must be a prosecution to prove beyond a reasonable doubt. See the case of State v. Iyabo Albert (1982) 5 SC 6.
Where the accused is in need of an interpreter, section 36(6)(e) of the 1999 constitution says it should be provided. See Ajayi v. Zaria Native Authority (1964) N RLR 85.
Composition of Court.
The composition of the court must not be altered throughout the trial till the conclusion. If the composition is altered, the case will be set aside. See the case of Sahihu v. COP (1999) 2 FNR 234 where the trial judge was appointed judge of a higher court, the trial was declared null and void.
Commencement of the trial is announced by the clerk of the court and the counsels of the prosecutor and defence are announced.
Arraignment: the accused is docked and charges are read. This is illustrated under 215 of CPA. S. 187 of CPC, Kajubo v. State (1988) 1 NWLR Pt 73 @ 72
Options open to an accused person during the trial
- Raise preliminary objection to the jurisdiction of the court, i.e the court is not competent to hear the case. Or defect of the charge. This is illustrated under section 267 CPA
- Accused may refuse to plead guilty or not guilty to the charge with reason. If the court finds the reasons invalid, he will be asked to plead. If he or she refuses, the trial shall still proceed.
- The accused may stay mute. The court may call evidence to determine muteness. If there is malice behind it, the trial will proceed. See R v. Ogor ( 1961) All NLR Pt 1 (a) 70. Accused may plead guilty to the charge.
- Accused may plead not guilty. When this happens, the accused is put upon trial to determine the reason for such plea.
- Accused may plead not guilty by insanity. The court will proceed to determine the state of mind of accused.
- Accused person may plead Autre fois acquit or autre fois or pardon. This is illustrated under s. 36 (9) of the 1999 constitution. This is where there has been a previous acquittal or conviction in a foreign court.
Element of plea for Autre fois occurs where:
- There was a trial to have taken place before a court of competent jurisdiction see R v. Jinadu 12 WACA 368.
- The aforementioned trial ended with conviction or acquittal.
- That the criminal charge for the accused was the same as the new charge against him or that the new charge is one in respect to the accused who could have been convicted at another trial although not charged with it. See R v. Noku 6 WACA 203.
A court will not convict based on a charge not brought before it.
After the arraignment procedure, the prosecution is set to open the case. The charges against the accused will be read, the accused takes his plea and the witnesses are called in order of priority. The court has the discretion not to allow any witnesses into the court before they’re to testify. Subsequently, a written address is brought up after the closing of evidence by the witnesses. This is as illustrated under s.186 of the Evidence Act. Refusal of any witness to appear in court amounts to contempt of court.
Prosecution witnesses are normally under oath. If a witness does not believe in oath there can be an affirmation. Where a witness refuses to affirm or take the oath, they may be remanded in prison to change their mind as under section as under s. 194 of CPC. All the witnesses need not be called. See Igwede & ors v. Queen (1959) 4 FSC 104.
The accused has a right to provide witnesses to present his case. Failure to comply, in absence of miscarriage of justice, cannot render the trial to be a nullity or to be set aside. See Eme v. The State ( 1964) 1 All NLR 416.
The judge shall not interfere with the conduct of the criminal proceedings. The job of the judge is only to arbitrate and direct the course of proceedings. See Uso v. Police ( 1972) 11 SC 37.
It is mandatory that witnesses be summoned by counsel if the accused satisfies that they are needed.
An adjournment can be requested to secure witnesses if they are material, where the accused is said to not be guilty of obstruction of justice.
There is a reasonable expectation that the accused person will be able to procure the attendance of witnesses in court on the date adjourned. See Yano & ors v. State ( 1965). Further evidence can be sought by both parties. See George & ors v. State ( 1971) 1 All NLR 205.
The court may visit a place of interest connected to a case. This is known to be a visit to locus in quo. The court may adjourn that place and continue proceedings or adjourn case and proceed to visit that place. See R v. Arutu ( 1959) 4 FSC 6.
The accused person is expected to be at the locus if there is a need for it. This is common where there was a fight or riot. see Aremu v.AG western Nigeria ( 1967( NMLR 62.
Bail during the trial.
During the trial, the offender may be granted bail but this will be based on the following conditions:
- The accused will appear to stand trial.
- Bail will be refused if there is the likelihood the accused will repeat the offence.
- Where there is a previous criminal record, bail may be refused.
- The nature of the offence ie for example, if the offence is a capital one, which is not bailable, the character of the evidence and the possibility of suppressing such evidence if granted bail. See Dantata v. The police( 1958) NRN LR 3
- The prevalence of the offence. See Felix v. The State( 1978) 2LRN 308
- Availability of sureties can determine requirements for bail. See EFCC v. Tafa Balogun( Nov 2005), see s. 118 CPA, S. 341 (2) CPC
The court must not punish the accused as entitled to bail. See Dogo v. COP ( 1980) 1 NCR 14. The money requested for bail must not be excessive.
A person erroneously granted bail can be rearrested if that offender is not entitled to bail. The court will look into the case itself since the rule of Procedure cannot override substantive justice. See Bello v. A.G of Oyo State ( 1986) 12 SC 1
Where the accused person absconds or jumps bail, the Magistrate or Judge may issue a warrant or public summons for the accused to be brought before the court. The surety may forfeit his bond upon the accused person’s failure to appear in court.
Submission of no case to answer
This is another matter that can occur during the trial.
An accused can adopt submission of no case to answer which is to say that there is no evidence on the part of the prosecution. The ruling of the no case to answer is brief without touching on facts of the case. See R v. Ekanem 13 WACA 103,
If upheld will lead to acquittal or discharge. Autre fois acquit can avail the offender but he can be rearrested for another offence. If the submission of no case to answer can be overruled in law, it implicates the accused person either in a single case or tried together and will be admissible as evidence. Where the submission has been wrongly overruled, any further evidence cannot be admissible as evidence. To hold otherwise, the accused will have to prove innocence. See Okoro v. State (1988) 5 NWLR 255.
Where a council is aggrieved by a judge over the submission, counsel can appeal. The position is that the case will go back to court. Police v. Agi (1980) 1 NCR 234.
The prosecution can withdraw the case based on the instruction of the Attorney General. It will be a mere discharge for the accused.
Defence is based on the prosecution’s case and the evidence must be beyond a reasonable doubt. See Ali v. State (1988) 1 MWLR 68.
Silence of the accused shall be made the subject of any comment by the prosecution but the court must draw inference where it is proper. See State v. Nafiu Rabiu (1980) 1 NCR 47. If the accused decides to be silent, it will be an unfair trial to force them to speak. See State v. Nafiu Rabiu (supra)
The final address is taken by both parties and submission is made to the court.
Nolle Prosequi
During the trial, the power of Nolle Prosequi can arise.
The Attorney- General has the power to discontinue at any stage before judgement. This power is known as nolle prosequi. This can be done in person or by any other officer of his department, armed with written consent from the Attorney general, upon informing the court of the intention to discontinue the Criminal Proceedings.
The power of nolle prosequi is different from the ordinary power vested upon a prosecutor under s. 75 of CPA to withdraw from the criminal trial before a Magistrate. The reasons for withdrawal must be stated with reasons however trivial or frivolous. The court must consent to the withdrawal.
See Clarke v. The AG Lagos State (1986) 1 QLRN 1
Section 150(1) of the 1999 constitution states that
” There shall be an Attorney general of the federation, who shall be the Chief Law Officer of the Federation and a Minister of the Government of the Federation”
Powers vested: s. 174 of the 1999 constitution states that the Attorney general of the Federation shall have the power to:
- institute and undertake criminal proceedings against any person before any court of law in Nigeria other than the court-martial (Nigerian army court) in respect of any offence created by or under any Act of the National Assembly.
- to take over and continue any such criminal proceedings that have been instituted by any other authority or person and
- to discontinue at any stage before judgement is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.
The Attorney general of the Federation cannot institute a criminal proceeding outside legal limits. This was illustrated in the case of Anyebe v. The State ( 1986) 1 SC 87; Emelogu v. The State ( 1988) 2 NWLR 528,
The Attorney General can brief private persons to prosecute. Private Prosecutors cannot institute Criminal Proceedings. See Rabiu v. The State( 1980) 8-11SC 30; DPP v. Akozor ( 1962) 1 All NLR 235,
Special Prosecutors are not approved to institute criminal proceedings like the police. They are:
a Customs see Customs & Excise v. Senator Barau ( 1984) ( 2) NCR
- Economic and Financial Crimes Commission see Economic & Financial Crimes Commission Act 2000, EFCC v. Anajemba (2005)
- The Independent Corrupt Practices Commission. See the Independent Corrupt Practices Commission Act 2000
- Rating Authority. See s. 173 local Government laws of Lagos State.
- Inspector of Factories. See. Section 71 Factories Act
- Officers of Ministry of industries
- Health inspectors
- NDLEA/NAFDAC
- I) Investment and Securities Tribunal, see Securities and Exchange Commission Act 2004.
Some vital issues to note:
Section 1 of the Criminal Procedure Code ( CPC,) allows for the process to compel the attendance of an accused person in a criminal proceeding. According to s.1 of CPC says, the complaint must be made before a Magistrate.
A complaint is an allegation that a person has committed an offence and is made orally or in writing to a court with a view to its taking action under the Criminal Procedure Code.
Section 146 of the CPC further provides that the court shall examine the complaint, and reduce the complaint and the substance of the examination into writing. If it is a criminal offence, the court will entertain and issue a criminal process. A mandamus (an order from a higher court) can be ordered against a Magistrate who refuses to issue a process. See R v. Adamson (1875) 1 QBD 201, see also S. 81 of Criminal Procedure Act (CPA).
In the Southern States, the receipt of such a complaint is sufficient to try an accused person without drafting any formal charge. In the North, a complaint laid before the Magistrate is a means by which the magistrate takes cognizance of the offence. Unless it is necessary to convict the accused person based on the admission of particulars of the complaints read to him, under s. 157 of the CPC, the Magistrate may need to draft a formal charge for the trial.
Section 59 of the CPA and the s. 142 of CPC allows making a complaint based on the class of person or such persons to make it. E.g a parent/legal guardian making a complaint on behalf of a minor.
Under section 340(2) of CPA in the South, criminal proceedings are commenced in the High Court. In the North, it is commenced by preferring a charge without holding a preliminary investigation into the offence pursuant to s. 185(b) of the CPC.
There must be at least one indictable offence in the information before the information can be filed. See. Queen v. Maina Waziri (1958) NRLR 91.
*Indictable offence: A serious offence.
Application for complaint sent to file an information/charge is directed to a High Court Judge. The application must be in writing. This should indicate whether a previous application was made. Where there were no previous criminal proceedings, the application should indicate the present indictment. The Application shall come with proof of evidence of witnesses to be called. The case is to be disclosed by the evidence to the best of the Applicant’s knowledge, information or belief.
Where there is no adequate proof of evidence, an accused person can bring a motion to quash information/charge. See Egbe v. The State (1980) 1 NCR 341.
A court may issue a summons to an accused person to appear following a complaint laid in court. The summons must state in writing the substance of the complaint and the name of the accused. The date of issue must be in duplicate signed by a Magistrate or Justice of the peace. See Goodman v. Evans (1954) 1 All E.R 593.
Court grants bail with conditions such as sureties, the amount by which sureties and accused persons are to be bound over and the time which the accused is to appear in court. These conditions are stipulated on the bond. See Ikonne v. COP ( 1986) 4 NWLR 473, see s. 30 CPA and s. 57 CPC.
Where the accused jumps bail a bench warrant can be issued. It can be issued in any part of a State other than within the confines of a courtroom where it is sitting. The death of a Magistrate cannot invalidate a warrant. Section 25 of CPA and S. 56 of CPC says that the warrant remains in force until executed or cancelled. The warrant compels the accused person to come to court. The court has the discretion to issue either summons or bench warrants.
Section 87 of CPA and S. 49 of CPC says that service of the summons or the bench warrant must be done personally on the person summoned. If it is a company, a director or a principal officer must receive the summons, to forfeit his bond when the accused fails to appear in court.
Explaining what happens at end of the court process.
Judgement.
Judgement is then given to be the final decision. The judgement must be in writing. The judgement must indicate points for determination, the decision, the reason for the decision and date and signature at the time of pronouncement.
Section 294(1) of the 1999 constitution says that judgement must be given within 3 months of final addresses. See Gafari v. Johnson( 1986) 5 NWLR Pt 39 (a) 587.
If after three months there is no substantial miscarriage of justice, the judgement can still stand. See Oruche v. COP, Delta State ( 1997) 4 NWLR PT 497 a
Sentencing/ Conviction.
There must be a judgment on whether the accused is guilty or not. See Iyakekhue v. Omoregbe (1991) 3 NWLR Pt 177 (a) 94.
After the closing address, the court fixes a date for conviction and sentencing.
Before conviction, an allocutus can be asked for a defendant in mitigation of offence. The accused could plea to a good character or being a first time offender. Under CPC in Northern states, the accused can be moved to a higher court for sentencing if the crime is above the court’s jurisdiction. Any omission not to ask for allocutus does not invalidate the trial.
With regard to sentencing, section 250 CPA, S. 198 CPC allows for the postponement of sentencing by the court. An accused person can appeal the sentence. See Nafiu Rabiu v. State ( supra)
Sentencing could be in form of the death penalty in cases of capital offences, imprisonment, fine as in State v. Okechukwu (1994) 12 SC 62, caning, deportation as under s. 41 of the 1999 constitution, s. 304 of CPA, Alhaji Daman v. Minister of Internal Affairs & ors (1981) 1 NCLR 25, binding over good behaviour see Ugwu v. STATE (1996) 7 NWLR Pt 558v, compensation and restitution ( see s. 279 (1) CPA).
There is haddi lashing in accordance with the Islamic faith as illustrated under 387, 388, 393 of the penal code. Section 307(1) of CPC. The essence of haddi lashing is to subject convicts to disgrace rather than infliction of pain. There is no law compelling the judge to exercise this kind of punishment.
Conditions where a convict gets bail pending appeal
After conviction, where the accused person is sentenced, the person becomes a convict. The convict is entitled to appeal. See ISA v. Kano State ( SC 351 2013) NGSC 62 ( 29 January 2019) where the appellant raped a 7-year-old girl and was convicted of rape under s. 283 of the Penal code. The defence had argued against the testimony given by the survivor, as not admissible since an unsworn testimony. The court affirmed the judgement of the lower court, saying that the prosecutor had proven the ingredients of rape which includes penetration. The court said that the unsworn testimony was corroborated with another material evidence, ie a medical report.
The court affirmed his sentence of 10 years and added the sum of 10,000 Naira to pay as a fine.
Where an appellant goes to a higher court to contest sentencing, that offender must be sure that there was a miscarriage of justice. Failure to argue miscarriage of justice will be seen as a waste of the court process, and the accused will be punished by increasing the sentence or an option to pay a fine.
The court can grant bail to the convict during an appeal if it seems that the appeal hearing will take some time and would likely cause the convict to spend more time in jail than stipulated years of imprisonment, given to the convict.
Photocred: The Guardian Nigeria
