RIGHT TO BE TRIED ONLY FOR AN OFFENCE KNOWN
TO LAW
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.
RIGHT TO SILENCE
This is provided
for under section 36(11) of the 1999
Constitution of the Federal Republic of the Nigeria.
The provision
provides thus:
“No
person who is for a criminal offence shall be compelled to give evidence at the
trial”
What the above
constitutional provision implies is to prevent an accused person from being
forced by the prosecution to testify for it against himself.
It had therefore
been stated that the combined effect of section
36(11) of the 1999 Constitution, section 160(a) of the Evidence Act, and
sections 112 & 236(1) of the Criminal Procedure Code, is that the accused
person is not a competent witness for the prosecution – The Queen v. Omisade & Ors.
(1964) 1 All NLR 67.
It is mandatory
that an accused person must not be compelled to give evidence in a case
involving him – Saganuwa v. Commissioner of Police (1978) 1 LRN 45; Deduwa & Ors.
v. The State (1975) 2 SC 37; and Agbachom v. The State (1970) 1 All NLR.
The right of the
accused not to be compelled to testify is further fortified by the fact that
where the accused failed to give evidence in his trial, the prosecution is not
allowed to comment on that fact in its address – section 160(b). Thus, the provision of section 36(11) does not
prohibit a trail judge from drawing any unfavourable inference against an
accused having regard to the evidence adduced in the case. In Sugh
v. The State (1988) 2 NWLR (Pt. 77) 475, the accused person was charged
with culpable homicide punishable under with death. In the course of the trial,
the accused person did not make any statement as regards the cause of the
deceased and the court commented on it in its judgment. On appeal, it was
contended that the court’s comments on the accused person’s failure to make a
statement as regards the cause of the deceased violated the accused person’s
right to silence. The Court of Appeal further held that the right of silence
means that no accused person can be compelled to give evidence at his trial.
RIGHT TO ONE TRIAL FOR ONE OFFENCE
This is provided
for under section 36(9) of the 1999
Constitution of the Federal Republic of the Nigeria.
The provision
provides thus:
“No
person who shows that he has been tried by any court of competent jurisdiction
or tribunal for a criminal offence and either convicted or acquitted shall
again be tried for that offence or for a criminal offence having the same ingredients
as that offence save upon the order of a superior court”
It should be
noted that ‘the order of a superior court’ stated in the above provision refers
to the order of retrial which a High Court or any superior court can make on
hearing appeal. As had been observed in Oruche v. Commissioner of Police (1963) 1
All NLR 262 at 265, that ‘The
Constitution clearly contemplates that an order of retrial may be made’.
A retrial may be
ordered by a superior court as a result of an appeal. It is not an infringement
of this section where such a trial is ordered by a competent court – Nafiu
Rabiu v. The State (1980) 8 – 11 SC 130 at 165. In instances of
retrial, there is still one trial for one offence and not another offence for
another trial.
However, a
single act may be contrary to several different laws and constitute several
different offences. Prosecution of each offence is not double jeopardy. Double
jeopardy is a prosecution done twice for the same offence by the same
government which the Constitution forbids – Section 36(9) of the 1999
Constitution; Sections 181 CPA & 223(1) CPC; Nafiu Rafiu v. The State
(supra); The State v. Madu & Anor. (1976) NNLR 155; North Carolina v.
Pearce (1969) 395 U.S 711.
There is no
double jeopardy where an accused is tried both for a substantive offence and
for conspiring to commit that same offence. Neither does double jeopardy
prevent both civil and criminal proceedings against a person for the same
offence. For example, even if a person is acquitted of criminal charges of
smuggling, the government may initiate civil action to seek forfeiture of the
goods alleged to have been illegally brought into the country.
There is
provision against double jeopardy subject to the qualification that a superior
court may order a retrial in the course of appeal or review proceedings
relating to the conviction or appeal – Imade v. IGP (1993) 1 NWLR (Pt. 271) 608 CA.
Also, an appeal
from a court of first instance to a higher court does not constitute second
trial for the purpose of invoking this provision – Nafiu Rabiu v. The State (supra).
Where a
competent court in one territorial division has tried and acquitted or
convicted a person for an offence, section 36(9) shall protect him from being
tried again in another territorial division or anywhere in Nigeria for the same
offence or for an offence having the same ingredients – Okoro v. Attorney-General of
Western Nigeria (1965) 1 All NLR 283.
The test of whether
an offence is the same is whether the same evidence is required to sustain
conviction. And for the provision of section 36(9) to apply, the earlier trial
must have been before a court of competent jurisdiction – Sunday Okoh v. The State (1984)
11 SC 1.
Finally, before
an accused person can be discharged on a plea of autre fois acquit or convict, the plea of the accused person must
satisfy the following conditions:
1.
The first
trial of the accused person must have been on a criminal charge;
2.
The first
trial of the accused person must be by a court of competent jurisdiction;
3.
The first
trial of the accused person must have ended with a conviction or an acquittal;
and
4.
The
offence for which the accused person is charged must be:
i.
The
same as the first offence for which he was tried; or
ii.
An
offence of which the accused person could have been convicted of at the first
trial, although he was not charged with that offence.
RIGHT AGAINST TRIAL UPON RETROACTIVE
LEGISLATION
This is provided
for under section 36(8) of the 1999
Constitution of the Federal Republic of the Nigeria.
The provision
provides thus:
“No
person shall be held to be guilty of a criminal offence on account of any act
or omission that did not, at the time it took place, constitute such an
offence, and no penalty shall be imposed for any criminal offence heavier than
the penalty in force at the time the offence was committed”.
This means that
no one shall be guilty of any criminal charge except there was an existing law
at the time he committed the criminal offence which prescribes the offence
committed. The same thing applies to penalties also, as no one would be
penalized for a crime more than that stipulated by law. Thus, an accused person
can only be charged and penalized under an enactment which was in force at the
time of the alleged criminal offence.
In essence, it
means that the section is intended to prevent retrospective legislation in the
field of criminal law whereby an innocent act or omission or a non-criminal act
when it took place might not over night be converted into a criminal act or
omission punishable under the law and to prevent the imposition of a heavier
punishment for an offence which at the time of its commission could only
attract a light punishment – Godwin Ikpasa v. The State (1981) 9 SC 7
The provisions
against retrospective and retroactive criminal legislation nullifies such
decrees as the Foreign Exchange Decree of 1970 enacted under the Military
regime – Sele v. State (1993) 1 NWLR (Pt. 269) 276 SC.
The combined
provisions of section 36(8) and section
36(12) suggests that whereas no person can be tried and convicted of an
offence which did not exist at the time of its commission, or which is not
contained in an existing law, there is no constitutional or other prohibition
against trial and conviction of a person for an offence which is known to law
and is in existence at the time of its commission but the relevant status has
been incorrectly stated – Ogbomor v. The State (1985) 1 NWLR (Pt. 2)
233.
However, the
provision of section 36(8) seeks to protect a person from being prosecuted and
punished for an act or omission which when it occurred did not constitute an
offence, the reasons being to prevent retrospective legislation in the field of
criminal law and to prevent the imposition of a heavier punishment for an
offence which at the time of its commission could only attract a lighter
punishment – Ikpasa v. The State (1982) 3 NCLR 152.
RIGHT AGAINST TRIAL FOR AN OFFENCE FOR
WHICH ACCUSED HAS BEEN PARDONED
This is provided
for under section 36(10) of the 1999
Constitution of the Federal Republic of the Nigeria.
The provision
provides thus:
“No
person who shows that he has been pardoned for a criminal offence shall again
be tried for that offence”.
This provision
is similar to section 211(1)(b) of the
CPA.
This means that
an accused person, who states and proves that the appropriate authority has
pardoned his conviction, should not be tried again for the same offence. The
appropriate authority that can grant pardon to a convict for a federal offence
is the President of the Federal Republic of Nigeria while for state offences;
it is the Governor of the respective State – sections 175 and 212 of the 1999 Constitution. However, where the
grant of pardon is not qualified, it shall be deemed to be granted without
conditions – Falae v. Obasanjo (1999) 4 NWLR (Pt. 599) 476 at 495.
Once pardon has
been granted to a convict, he shall not serve the penalty again and whatever is
left of the penalty shall be removed. Thus, no one shall be liable to be tried
or punished again in criminal proceeding under the jurisdiction of the same
State for an offence for which he has already been finally acquitted or
convicted in accordance with the law of that State.
The effect of pardon
is to renew the convict (novas homo),
to acquit him of all or corporal penalties and forfeitures annexed to the
offence pardoned.
Application for
pardon by a convicted person can only be made to the Committee on Prerogative
of Mercy and not to the Supreme Court or any other court – Okeke v. The State (2003) 15 NWLR
(Pt. 842) 25
Pardon should
not be mistaken for any of the following –
1.
Nolle prosequi – granted by the
Attorney-General of the Federation or State pending on the case to those who
are being prosecuted.
2.
Amnesty – granted to those who are
alleged to have committed a crime.
Finally, the
underlying elements of the principle of bis
in idem are that the accused has been acquitted, the judgment is question
is final and that the new proceedings are based on the same issue. click on any link on left or right side for more insight.
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Email: victorezekielc@gmail.com
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