RIGHT TO BE TRIED ONLY FOR AN OFFENCE KNOWN TO LAW

CONSTITUTIONAL AND STATUTORY PROVISIONS SAFEGUARDING THE RIGHTS OF AN ACCUSED PERSON IN A CRIMINAL TRIAL

This is provided for under section 36(12) of the 1999 Constitution of the Federal Republic of the Nigeria.

The provision provides thus:

“Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefor is prescribed in a written law; and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law”.

This means that a person should not be convicted of any criminal offence which is not defined. It should however be noted that the courts still have the power to punish for common law contempt of court, even though, it is not a written offence neither is the penalty provided in any written law. Though, the effect of the section is that apart from the preservation of the unwritten law relating to contempt of court, common law and customary law offences do not exist in law in Nigeria.

There are however instances where an offence in one State is not an offence in another State. In Aoko v. Fagbemi & Anor (1961) 1 All NLR 400, where the accused was charge, tried and convicted for adultery. The High Court on appeal quashed the conviction of the accused by a customary court for the offence of “committing adultery by living with another man without judicial separation” which was not defined and penalized by the criminal code. However, in the North under sections 378 and 388 of the Penal Code, adultery is a criminal offence.

Also, in Udoku v. Onigha & Anor (1963) 2 All NLR 107, the conviction for an alleged offence of “invoking and binding juju” on a person was quashed because it was not contained in any written law.

It should also be noted that a person who is charged for an offence which is defined but does not prescribe the penalty cannot be convicted. In Attorney-General (Federation) v. Isong (1986) 1 Q. L. R. N 75, the Supreme Court held that the accused person could not be convicted of unlawful possession of firearms contrary to section 3 and unlawful possession of ammunition contrary to section 9 of the Firearms Act 1966 because neither of the sections stated the penalty of the alleged offence. click on any picture at right hand or left hand side for more insight.

Barr, Ezekiel chigozie has many years experience in providing legal representation and advising clients across an exceptionally broad range of contentious and non-contentious matters. His main goal is to help clients resolve any contentious or non-contentious legal problem they are having rapidly and cost effectively.

Email: victorezekielc@gmail.com

Tel: +2348034997413

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