Institution of Criminal Proceeding & Bail Flashcards
Who can institute Criminal Proceedings?
- The Attorney General
- The Police
- Private Persons
- Special Prosecutors
What are the powers of the AG?
To institute criminal proceedings
To take over and continue criminal proceedings
To take over and discontinue criminal proceedings (nolle prosequi)
Section 174 CFRN
Exercisable in any court except Court Martial
Can the AG state prosecute a Federal Offence?
With the express delegation from the AG Federation by means of fiat
Section 268 ACJA
What is the power of nolle prosequi?
Power of the AG to take over and discontinue criminal proceedings at any stage before judgement
Discretionary power. Doesn’t need to give court reason
State v Ilori
What is the effect of a nolle prosequi?
The accused will be discharged
How can the AGs powers be exercised?
All can be delegated
EXCEPT Nolle Prosequi which can only be exercised orally in person or through an officer in his department by written instrument signed by AG
Can a prosecutor withdraw from the prosecution of any person?
Yes, at any point before judgment is pronounced but reason must be given to the court
What is the effect of a prosecutors withdrawal on proceedings?
If made before accused opens his defence = mere discharge
If made after the accused opens his defence = acquittal
Can police institute and prosecute criminal proceedings?
Yes they can prosecute criminal cases in all courts including superior courts of record
Olusemo v COP
And he does not have to be a legal practitioner
Osahon v FRN
Section 4 & 23 Police Act
When can a private person institute and commence criminal proceedings?
- He presented the information endorsed by a law officer to the Chief Registrar of the HC stating that the law office has seen the information and declined to prosecute
- He enters into recognisance for the sum of N100 for CPL and N10,000 for ACJL or such as the court may fix undertaken to prosecute the information diligently
What are the limitations on the right of a private person to prosecute?
- Proceedings for official corruption against a judicial officer can only be commenced after the information has been signed by or on the behalf of the AG
- Sedition requires consent of AG
- Adultery and related offences in the North can only be instituted by the woman or girl’s husband, father or guardian
Is consent required for filing an information in the High Court?
Yes, consent of a HC Judge is a condition precedent to filing an information
Any information filed without first obtaining the requisite consent is liable to be quashed in the South
AG Federation v Clement Isong
In the North, the trial would a nullity
Bature v State
What documents must accompany an application for leave of court to file an information?
- An affidavit
- A copy of the proposed charge
- Written statement of the accused
- Proofs of evidence of witnesses
- List of exhibits to be relied upon
- No need for affidavit if application is being brought by the AG
What remedy is available to a prosecutor if a judge refuses consent to file an information?
Can make the same application to as many High Court Judges as possible and once exhausted can appeal the Court of appeal
Where do you not need consent or leave to institute criminal proceedings in the High Court?
Lagos and Abuja
What is bail?
The procedure by which a person arrested or detained in connection with a crime may be related upon certain conditions
What is the constitutional authority of bail?
An offshoot of constitutional rights to liberty, freedom of movement and fair trial
What is the restriction of a person’s right to Liberty?
Detention upon reasonable suspicion of committing an offence or to prevent commission of a crime Section 35(1) CFRN
What are the qualifications to detention of a person?
Any person detained must be brought before a court of law within reasonable time
Defined to mean 24 hours or 48 hours with the court is not within 40km of the detention facility
Note that this does not apply to people detained on suspicion of committing a capital offence
What are the different types of bail?
Police Bail
Bail by court pending trial
Bail by court pending appeal
What is the authority that police can grant bail?
Section 17 & 18 CPL
Section 17 ACJL
Section 129 & 340 CPCL
Section 8, 30 & 31 ACJA
What does the case of Eda v COP say?
Any legislation that says that a person is to be brought before a court “as soon as practicable” is inconsistent with the reasonable time provision under Section 35(4)(5) CFRN
How do you make an application for police bail?
In writing by the suspect or his representative
Is the court bound to grant bail upon application by suspect?
No, in every case the power to grant bail is discretionary but the court must exercise its discretion in a judicious manner
Does the Magistrate Court have power to grant bail in respect of a capital offence?
No, it can only be granted a Judge of the high Court
Ukatu v COP
Is oral application for bail forbidden in the High Court?
No it is not forbidden
Abiola v FRN
What can accused do if bail is refused in the Magistrate Court?
Can apply to the High Court
What is the procedure for applying for bail in the Magistrate Court?
There is no statutory provision however for simple offences counsel usually make an oral application while for serious offences, it is done more formally by summons or motion on notice
What order do you make which enables the police to lawfully detain a suspect in custody while investigation is being carried out?
A remand order
How is application for bail in the HC South typically made?
by summons, supported by affidavit
A CTC of the Charge and of the ruling of Magistrate if bail was previously refused
Simidele v COP
Will the court refuse grant of bail if it is not brought by way of summons?
The court places more emphasis on doing substantial justice over a mere irregularity on technical grounds. Thus, if the application is not brought by way of summons, bail may still be granted
Falobi v Falobi
How is application for bail in the HC Lagos typically made?
Can be by summons or motion on notice
How is application for bail in the HC North typically made?
By way of motion on notice supported by affidavit
Tanko v COP
What can accused do if bail is refused in the High Court?
Can appeal to the Court of Appeal
Can bail be granted for suspect accused of capital offence?
Generally no but they may be granted bail if:
- There is no reasonable ground that they committed the offence
- There is need to make further enquiries
- Exceptional circumstances (ill health, extraordinary delay in investigation and any circumstance the judge considers exceptional)
Section 161 ACJA
Can bail be granted for suspect accused of serious offences?
Generally such persons shall be release on bail except if:
- There is reasonable grounds to believe that the suspect will commit another offence
- Evasion of trial
- Interference with investigation, witness intimidation etc
- Conceal or destroys evidence
- Prejudice proper investigation
- Jeopardise objectives or purpose of the functioning of criminal justice administration
Section 162 ACJA
What are the general factors to consider in granting bail?
- Criminal record of the accused
- Nature of the offence
- Possibility of accused committing the same offence or another offence
- Prevalence of the offence
- Ill health of the accused
What are the different terms of bail?
- Bail on self recognisance (status in society)
- Bail on posting of bond (fixed amount that will be forfeited if he jumps bail)
- Bail on a bond with a surety
What qualifications are you required to have to stand as surety?
- A person of good character
- A person of known address
- A person acceptable to the court
Can a woman stand as surety?
Yes and so can an individual or corporate body
Section 118(3) ACJL
