JUDGMENT
This is the final decision of the court. The court
delivers its judgment at the conclusion of evidence and final or closing
address which is the reasoned and binding decision of the court. Thus, the
court delivers judgment after the presentation of the case for the prosecution
and the case for the defence and addresses have been delivered by counsel to
both parties.
The Black’s Law
Dictionary, 6th Edition defined a judgment as the final determination
of a court of competent jurisdiction upon matters submitted to it. It is the
conclusion of law upon facts found or admitted by the parties or upon their
default in the course of the case.
CONTENTS
AND FORM OF A VALID JUDGMENT
A judgment which must be written before delivery must
contain the following –
1.
The point or points (issue) for
determination.
2.
The decision of the court on
the point or points for determination.
3.
The reason or reasons for the
court’s decision.
4.
The signature and date on which
the judgment was delivered.
5.
The seal of the court.
THE
POINT OR POINTS (ISSUE) FOR DETERMINATION
This is the issue between the two parties to the
criminal cause or matter that has been brought before the court for determination
by the court.
The point or points for determination, which has to be
determined by the court is whether or not in law the accused committed the
offence alleged against him, despite his plea. If an accused pleads not guilty
to a charge, issues are joined between the accused person and the prosecution.
The prosecution has the onus of proving beyond reasonable doubt that the
accused committed the offence alleged against him.
Therefore, the issue for determination is whether the
accused person committed the offence alleged against him and is therefore
guilty, or whether the accused person did not commit the offence and is
therefore not guilty (innocent), or whether the accused person did commit the
offence alleged against him, but committed a lesser offence for which he could
be convicted under the law and is therefore guilty of the lesser offence.
THE
DECISION OF THE COURT ON THE POINT OR POINTS FOR DETERMINATION
The courts must decide whether the prosecution proved
the allegation against the accused beyond reasonable doubt on the one hand, or
whether on the other hand, the prosecution has failed to establish the
allegations made against the accused.
The court must decide the point or points for
determination in favour of either the prosecution or the defence. Where the
court is in doubt as to whether the point for determination should be decided
in favour of the prosecution or the defence, the doubt should resolved in
favour of the defence – Onafowokan v. The State (1987) 7 SCNJ
233.
THE
REASON OR REASONS FOR THE COURT’S DECISION
The judgment of the court must state the reason or
reasons upon which the court’s decision is based.
The court must give cogent and compelling reason or
reasons as to why the evidence of one party is to be preferred to that of
another. It cannot merely states that it believes the evidence of one party
than the other party without any reason or justification for such a belief.
In Willie John v. The State (1967) NMLR 101, the
accused persons were charged and convicted on two counts of burglary and
housebreaking. In his judgment, the trial judge stated that the evidence
against the accused persons was overwhelming and found the accused persons
guilty. The accused persons appealed against conviction on the ground inter alia that the judgment of the
court did not contain the points for determination, the decision of the court
and the reasons for the decision. The Supreme Court agreed with the counsel’s
contention that the judgment delivered by the court did not comply with the
requirements of the law, because neither the evidence of the prosecution, nor
that of the defence was reviewed. Furthermore, no reasons were given for the
court’s decision. The appeal was allowed.
THE
SIGNATURE AND DATE ON WHICH THE JUDGMENT WAS DELIVERED
The judgment must bear the date on which the judgment
was delivered. There must also be the signature of the magistrate or the judge
in the judgment at the time of delivering it.
Where a magistrate or a judge appends his signature
and writes the date not immediately after the judgment, but after some
ancillary such as conditions of appeal, the judgment is deemed in law to have
been signed and dated. The reason for this is that the signature appended and
the date stated relate to the judgment and the order.
In Obareki v. The State (1982) 2 NCR 63, the
accused person was convicted of offences of stealing and forgery. There was no
signature and date at the foot of the judgment. But the trial magistrate signed
and dated an order giving conditions of appeal. This order was recorded
immediately below the judgment. The accused appealed against conviction on the
ground that the trial magistrate failed to comply with the provisions of the
CPA because the judgment was not signed and dated. The Court of Appeal held
that it would have been neater to sign the judgment and the order separately.
Nonetheless, there had been sufficient compliance with the CPA because the
order was made at the time of delivering the judgment. Therefore, the judgment
had been signed at the time of pronouncing it.
THE
SEAL OF THE COURT
The Criminal Procedure Code (CPC) provides that the
judgment of the court must bear the seal of the trial court.
It should be noted that where a magistrate delivers
oral judgment in the south, the judgment is not required to contain all the
essential elements except the decision of the court, brief reasons for the
decision, signature of the magistrate and date of delivery – proviso
to section 245 of the CPA.
The difficulty encountered by magistrates and judges
in writing judgments that comply with the provisions of the enactments led
Oputa JSC in Stephen v. The State (1986) 12 SC 450 to formulate, and to
reiterate in Onuoha v. The State (1988) 3 NWLR (Pt. 83) 460 what his
Lordship considered as the appropriate stages to be transverse in writing a
good judgment. The stages are as follows –
Stage 1 – If the plea
of the accused person is guilty no issues and no evidence is required. The
trial court can proceed straight to judgment. But of the plea is not guilty (as
it is bound to be in murder trials) then all the constituent elements of the
offence or offences charged are put in issue. And the onus lies heavily on the
prosecution to prove the offence charged beyond reasonable doubt.
Stage 2 – When issues
are thus joined, evidence is led in proof or disproof of each issue. At this
stage, the duty of the trial court is merely to record the evidence led and
observe the demeanour of the witnesses called by either party.
Stage 3 – This is the
most important and critical stage as it deals with the perception of facts,
evaluation of facts, belief or disbelief of witnesses and findings and
conclusions based on the evidence accepted by the trial court. At this stage,
the trial court will briefly summarise the case of either party. This does not
mean reproducing verbatim the evidence of the prosecution witnesses and of
defence witnesses one by one, but means using such evidence to tell a coherent
and connected story. Having done this, the trial court will then decide which
story to believe.
Stage 4 – Having
exercised his prerogative to believe or disbelieve, having made his findings of
fact the trial court will then draw the necessary inference or conclusion from
the facts as found. Finally, the trial court would then discuss the appellate
law against the background of the facts found – Stephen v. The State (1986) 12 SC
450 at 504 – 506; Onuoha v. The State (1988) 3 NWLR (Pt. 83) 460 at 475 – 476.
EFFECT
OF FAILURE TO COMPLY WITH THE PROVISIONS OF Section 245 OF THE CPA and Section
269 OF THE CPC
Section 245 of
the CPA provides thus –
“The judge or magistrate shall record his judgment in writing and
every such judgment shall contain the point or points for determination, the
decision thereon and the reasons for the decision and shall be dated and signed
by the judge or magistrate at the time of pronouncing it:
Provided that in the case of a magistrate in lieu of writing such
judgment it shall be sufficient compliance under this section if the
magistrate:
(a)
records briefly in the book
his decision thereon and where necessary his reasons for such decision and
delivers an oral judgment, or
(b)
records such information in
a prescribed form.”
“Section 269 of
the CPC provides that –
“Every judgment shall contain the point or points for determination,
the decision thereon and the reasons for the decision and shall be dated and
signed or sealed by the court in open court at the time of pronouncing it.”
A judge of the High Court must reduce his judgment
into writing before he delivers it. He cannot deliver an oral judgment. By oral
judgment is meant a judgment which has not been reduced into writing before its
delivery orally in court.
The effect
of not complying with the above provisions will result in the judgment being
nullified.
In Atunde v. C. O. P (1952) 14 WACA 171 at 173,
de Comarmond Ag. C.J. in delivering the judgment of the court stated inter alia that –
“The important point about section 245 (CPA) is that it does not
provide that non-compliance with its provision invalidates a conviction.”
However, subsequent decisions on the issue under both
the CPA and the CPC indicate the contrary. In Nwaefulu & Anor. v. The State
(1981) 1 NCR 229, and Alagbe & Anor. v. The State (1976) NNLR
184; (1976) 9 – 10 S.C 77, it was held that the failure of the judges
to give reasons for their decisions violated the provisions of section 245 of
the CPA thus vitiating conviction. Similarly, in Mohamman v. I.G.P (1970) NMLR 98 and
Shinfada
v. C. O. P (1970) NNLR 113, (cases decided under the criminal Procedure
code), the effect of not complying with the section was held to vitiate
conviction. Thus, null and void.
TIME
LIMIT WITHIN WHICH JUDGMENT SHALL BE DELIVERED AND THE CONSTITUTIONAL
IMPLICATION OF FAILURE TO DO SO WITHIN TIME
Before the coming into force of the 1979 Constitution,
presiding officers of court were expected to deliver judgment within a
reasonable time after delivery of final address by counsel to both parties.
Judgment must not be unduly delayed. If judgment in a criminal cause or matter
is unduly delayed, justice is delayed, and justice delayed is justice denied.
In Aposi v. The State (1971) NMLR 315, the
accused was charged with murder. He was tried and at the conclusion of the
hearing, the trial judge reserved judgment sine
die (without a date set). Judgment
was delivered 12 months after the conclusion of the hearing. The accused was
convicted and sentenced to death. The appellant appealed against his
conviction. Although the appeal was dismissed, the court noted, with
disapproval, the delay in delivering judgment. Oyemade J. A delivering the
judgment of the court observed as follows –
“It is desirable in a case like this (offence committed 26th
September 1965, trial began 4th December 1967, and concluded 17th
July 1968) that neither the prosecution nor the judgment should be unduly
delayed, in view of the mental agony of the accused person for his life and of
the fact that impressions get blurred with time”.
Therefore, before the coming into force of the 1979
constitution, there was no specified time period within which judgment should
be delivered.
Section 258(1)
of the 1999 Constitution, however, set a time limit
of three (3) months for delivery of judgment by all the constitutional courts
in Nigeria. This provision is replicated in section 294(1) of the 1999
constitution, which prescribes 90 days from final address to delivery of
judgment as the time limit.
Time is calculated from the date of the final address.
A final address is the last or ultimate speech or submission made to the court
in respect of the issue before it – Chief Harold Sodipo v. Lemmin Kainenoy &
Ors. (1985) 7 S.C 492 at 544.
In order to determine whether a judgment was delivered
within or outside the constitutional time limit, the number of days between the
delivery of final addresses and the delivery of judgment must be reckoned. If
the number of days is less than three (3) months and therefore falls within the
3 months prescribed time limit, the judgment will be valid and will be
delivered within time. However, if the number of days is more than 3 months,
even if it is by one extra day, and therefore falls outside the 3 months
prescribed limit, the judgment will be invalid. The crucial date for purposes
of reckoning the number of days is the date of delivery of the final addresses
and the date of the delivery of the judgment.
In Shehu v. The State (1982) 1 NCR 1, the
accused was charged with culpable homicide punishable with death. After the
conclusion of evidence and final address, judgment was reserved. Eventually
judgment was delivered five months after the hearing of final addresses. The
accused was found guilty and sentenced to death. On appeal against conviction
on the ground inter alia that the
judgment of the court was delivered outside the prescribed three month time limit,
the Court of Appeal held that a State High Court being a court created by the
constitution was bound by the provisions of section 258(1) of the constitution
to deliver its judgment within three months was a contravention of the
constitutional provision.
Where there is more than one address, the
determination of whether judgment was delivered within or outside the 3 months
period is more difficult. Ordinarily, an address is delivered by each party to
the proceedings, and these addresses are final addresses. However,
circumstances may arise where the court of its own volition after reserving
judgment invites the parties to address it on a point of law for the just
determination of the case.
In Chief Harold Sodipo v. Lemmin Kainenoy &
Ors (1985) 7 S. C 492, Aniagolu JSC stated that the following two
situations could arise during a trial –
1.
after reserving judgment, but
within 3 months period allowed by section 258(1), a trial judge forced with a
problem... reconvenes the court for the parties and their counsel to argue a
fresh point, contained in the pleadings or to re-argue a point or points on
which he had earlier received addresses. This is valid because the court is
still seized of the matter when further addresses were invited; and
2.
After reserving judgment, but
beyond and outside, the 3 months period allowed by section 258(1), the trial
judge purports to reconvene the parties and counsel for a fresh, or a
continued, argument on the case or some aspects of it. This is invalid because
the court is functus officio.
THE CONSTITUTIONAL
IMPLICATION OF FAILURE TO DO SO WITHIN TIME
Section 294(5)
of the 1999 Constitution provides thus –
“The decision of a court shall not be set aside or treated as a
nullity solely on the ground of non-compliance with the provisions of
subsection (1) of this section unless the court exercising jurisdiction by way
of appeal or review of that decision is satisfied that the party complaining
has suffered a miscarriage of justice by reason thereof”.
This means that the decision of the court is no longer
automatically invalid once it is delivered outside ninety days. The court of
appeal must examine the judgment to ascertain whether the delay has occasioned
a miscarriage of justice before it will declare the judgment invalid. Thus, it
is only where there is a miscarriage of justice due to failure of the court to
deliver judgment within 90 days that the judgment will be nullified.
CONVICTION
AND ALLOCUTUS
The judgment of the court must end with a finding of
guilty or not guilty. A finding of guilty is a conviction.
Allocutus is a plea made by an accused person after
conviction.
Where an accused is convicted or pleads guilty, before
the court pronounces sentence, the accused should first be asked by the
registrar or by the judge or the magistrate, whether he has anything to say as
to why sentence should not be passed on him according to the law, but an
omission to do this does not affect the validity of the proceedings. This
procedure is known as the allocutus.
Whatever the accused person says in allocutus, if
accepted, can only go to mitigate sentence and cannot avail him as a defence to
the charge – section 247 of the CPA. The
allocutus therefore affords the accused person an opportunity of saying
something in mitigation of the sentence. In I. G. P v. Tegbe (1957) WRNLR
125, where an accused person was deprived of an opportunity for
allocutus, because the judgment given by the trial magistrate was read by
another magistrate under section 251 and that judgment included as its part,
the sentence which was, however, manifestly light for the offence, it was held
that, although the practice adopted was ‘undesirable’, the sentence would not
be reduced.
After the allocutus, the prosecution is then asked
about the criminal records, if any, of the accused person. This is to help the
court determine the appropriate punishment. The prosecuting counsel should
confine himself to giving such record and to other relevant facts such as the
prevalence of the offence. It is undesirable for the prosecution to ask for
maximum sentence; the sentence should be left for in the discretion of the
trial judge – Enahoro v. Queen (1965) 1 All NLR 125.
Where previous convictions are alleged, the admission
thereof by the accused, it seems, should be recorded; in the absence of such
admission they should be proved and a record made of such proof – Police
v. Ankra & Ors. (1939) 5 WACA 180. The term ‘previous conviction’ used in this sense, means a conviction
had before the commission of the offence charged, any conviction thereafter
should not be taken into consideration in awarding sentence – R. v.
Eku Eyu (1942) 8 WACA 49. Also, it is only previous convictions had in
respect of similar offences as the one for which the accused has been found
guilty that are relevant for this purpose. Thus, allocutus is made either after
a conviction or a plea of guilty but always before a sentence.
However, it should be noted that the plea of allocutus
is not applicable in death sentence.
SENTENCE
Sentence is the last stage of the trial. If the court
finds the accused guilty, it should either pass sentence on him or make an
order – section 248 of the CPA, and
the court may adjourn the case to some future day for this purpose.
For every distinct count of which the accused is
convicted in a separate sentence should be imposed – Adesina v. Police (1956) 1 FSC 55,
and until a sentence is passed, the trial of court of count has in
effect not been completed by the court. So where the trial judge found the accused
guilty on certain counts in the charge but failed to pass any sentence on any
of these counts, the Supreme Court declined to uphold the convictions – Aigbe
7 Anor. v. The State (1976) 1 NMLR 184. If the sentence imposed for the
distinct counts are imprisonment, they may be ordered to run currently.
The sentence which is passed must be recorded in the
record of proceedings – Okpo v. The State (1972) 2 SC 26. A
judge sitting at an Assizes (that is, a session of a court), may at any time
during the same Assizes or Session, before a sentence passed him has been
entered on the record, alter that sentence and substitute it for another – Oyediran
& Ors. v. The Republic (1967) NMLR
122. Thereafter, that is, after the end of the Assizes or Session, he
may not alter the sentence for he is functus
officio, although in a proper case a Court of Appeal may reverse or amend
the sentence.
POWER
TO CONVICT FOR AN OFFENCE NOT EXPRESSLY CHARGED
As a general rule, an accused can only be found guilty
in respect of the offence for which he is charged, that is, the offence to
which he has pleaded not guilty, and in respect of which the onus is on the
prosecution to establish the charge beyond reasonable doubt.
There are however provisions in the principal
enactments which permit a magistrate or a judge to convict for such kindred
offence for which the accused was not arraigned before the court, if the
evidence adduced at the trial shows that the accused person committed an
offence other than the offence charged. The justification for empowering the
courts to convict an accused for offence not expressly charged has been stated
as one of public policy in order to bring litigation to finality – Babalola
v. The State (1989) 4 NWLR (Pt. 115) 264 at 285.
A judge or a magistrate can convict an accused person
for an offence not expressly charged in the following circumstances –
1.
Where an accused is charged
with a substantive or full offence, but the evidence establishes an attempt to
commit the substantive or full offence, he may be convicted of the attempt,
although the attempt was not expressly charged – section 169 of the CPA; section 219 of the CPC.
2.
Where an accused is charged
with stealing, but the evidence established that he received the thing allegedly
stolen knowing the same to have been stolen, he may be convicted for receiving
stolen property – section 173 of the
CPA.
3.
Where an accused is charged
with any of the following offences – burglary, housebreaking, entering into a
dwelling house, breaking into a building and committing a felony therein,
breaking into a building with intent to commit a felony therein, breaking into
a place of worship with intent to commit a felony. The accused may be convicted
of any of these offences, if established by evidence, other than the offence
charged – section 174(1) of the CPA.
4.
Where an accused is charged
with stealing and the evidence established the offence of obtaining property by
false pretences with intent to defraud, he may be convicted of obtaining
property by false pretences with intent to defraud – section 174(2) of the CPA.
5.
Where an accused is charged
with obtaining property by false pretences with intent to defraud, and the
evidence established the offence of stealing, he may be convicted of stealing –
section 174(3) of the CPA.
6.
Where an accused is charged
with the offence of rape or defilement of a girl under the age of 11, and the
evidence revealed an offence of unlawful carnal knowledge of an imbecile or an
idiot or of the offence of indecent assault, he may be convicted of any such
offence – section 175 of the CPA.
7.
Where an accused is charged
with the murder of any child or of infanticide, and the evidence establishes
the offence of concealment of birth of a child, he may be convicted of the
offence of concealment of birth of a child – section 177 of the CPA.
8.
Where an accused is charged for
the murder of her newly born child, and the evidence revealed the offence of
infanticide, manslaughter or concealment of birth, she may be convicted of any
such offence – section 178 of the CPA.
9.
Where an accused is charged
with an offence, and there is a doubt as to which particular offence was
committed by the accused, he may be convicted of any offence, other than the
offence with which he was charged, if it appears from the evidence that he committed
that offence – section 217 of the CPA.
10.
Where an accused is charged
with a grave offence, he may be convicted of a lesser offence, where the
offence charged consists of several particulars and a combination of some of
the particulars constitutes a complete lesser offence, and if the lesser
offence is proved by the evidence adduced and the remaining particulars are not
proved – section 179(1) of the CPA;
section 218 of the CPC.
11.
Where an accused is charged
with an offence, and facts proved which reduce it to a lesser offence, he may
be convicted of the lesser offence even though he was not expressly charged for
the lesser offence – section 179(2) of
the CPA; section 218(2) of the CPC.
TYPES
OF PUNISHMENTS
These are also known as sentence or penalty. After an
accused person is convicted for an offence, the magistrate or judge must pass a
sentence on him.
The types of punishments are –
1.
Death sentence – section 367 of the CPA.
2.
Imprisonment – section 377 of the CPA.
3.
Fine – section 389 of the CPA.
4.
Caning – section 387 of the CPA.
5.
Haddi lashing – section 307 of the CPC.
6.
Forfeiture – section 359 of the CPC.
DEATH
SENTENCE
The death sentence is the prescribed punishment for
persons convicted of capital offences. It is only a High Court that can pass
such a sentence as capital offences. They are not triable by the Magistrate
Courts.
The death sentence is mandatory, therefore, the court
does not have the discretion to impose any other penalty or a lesser penalty
upon conviction.
When pronouncing a death sentence, the judge is robed
in red gown and black cap. The punishment of death is inflicted by hanging the
offender by the neck till he be dead – section
367 of the CPA, and the sentence is pronounced in this form –
‘The sentence of the court upon you is that you be hanged by the
neck until you be dead and may the Lord have mercy on your soul’. – section 367(2) of the CPA.
It is the duty of the judge under the law to state the
statutory direction as to the manner of death. But where he merely pronounces
it without indicating the manner it is to be carried out, death by hanging
should be presumed as that is the only mode of execution known to the law – Gano
v. The State (1969) 1 NMLR 317. In such a case, the omission is to be
brought to the notice of the judge for rectification. He is not functus officio to correct the error
himself – Dass v. The State (1971) 1 NMLR 304. In Ayodele Adetokunbo v. The State
(1972) 2 SC 26; (1972) 1 All NLR 89, the trial judge after convicting
the appellant for murder merely recorded “sentence of death pronounced”. The
Court of Appeal, on the issue of sentence, thought that the trial judge did not
pronounce the sentence of death in the prescribed form. In a further appeal to
the Supreme Court, it was held that the sentence, as recorded by the trial
judge, was sufficient to infer that he pronounced the sentence of death in the
stipulated terms of the Criminal Procedure Act. The court however, opined that
it was desirable that the sentence as provided for in the Act be recorded
verbatim.
In Kalu v. The State (1998) 11-12 SC 14 at 49;
(1998) 13 NWLR (Pt. 583) 531, the Supreme Court opined that the death
sentence is lawful in Nigeria and cannot be regarded as a degrading or inhuman
treatment.
Where a death sentence is pronounced, the judge who
pronounces it issues under his hand and seal a certificate to the effect that
such a sentence has been pronounced upon the accused named therein and such a certificate
is a sufficient and full authority for the detention of the offender in safe
custody until the sentence can be carried into effect.
EXCEPTIONS
TO THE DEATH SENTENCE
There are two exceptions to death sentence, as it
cannot be passed upon the following persons upon conviction of a capital
offence –
1.
Pregnant women; and
2.
Young persons.
PREGNANT WOMEN
The sentence cannot be passed on a woman found to be
pregnant at the time of conviction but in lieu of it, the woman should be
sentenced to imprisonment for life – section
368(2) of the CPA; sections 270 and 300 of the CPC. Where, therefore, a
woman is convicted of a capital offence alleges that she is pregnant or where
the trial court convicts her thinks fit so to do, the court should, before
passing sentence, first determine the question of whether or not she is
pregnant – section 376(1) of the CPA;
sections 271(1) and 300 of the CPC. The court should find her not pregnant
unless it is satisfactorily and affirmatively proved that she is pregnant – section 376(2) of the CPA; section 271(4)
of the CPC. If she is found not pregnant, the death sentence must be passed
– section 376(3) of the CPA. But an
appeal lies against such a finding and if the appeal court sets it aside, it
will quash the death sentence and substitute therefore a sentence of
imprisonment for life – section 376(4)
of the CPA.
YOUNG PERSONS
The death sentence cannot also be passed on an
offender, who, in the opinion of the court, has not attained the age of
seventeen (17) years. In such a case, the death sentence is not pronounced or
recorded but instead, the offender is ordered to be detained at the pleasure of
the President if the capital offence is against a Federal law or of the
Governor if it is against a State law – section
368(3) of the CPA.
It is the age of the offender at the time of his
conviction and not the age at the time of the offence committed that is
material and determines whether or not the death sentence shall be passed – The
Queen v. Bangaza (1960) 5 FSC 1. The current law is that it is the age
of the young person as at the time the offence was committed and not the age as
at the time of the conviction. The court may form the opinion that the
convicted person has not reached the age of seventeen (17) years from –
1.
The record of the proceedings;
or
2.
Calling evidence as to age; or
3.
Ordering medical examination.
Where the court calls evidence as to age, the
prosecution and the defence may call witness or witnesses. Such witnesses shall
be examined, cross-examined and re-examined by either side, if need be – Jubril
v. The State (1969) NMLR 71.
PREROGATIVE
OF MERCY
Where the court pronounces a sentence of death on an
accused person who is convicted, the court shall as soon as practicable
transmit to the Minister or Commissioner designated to advice the President or
the Governor on the exercise of the prerogative of mercy –
1.
A certified true copy of the
record of proceedings at the trial;
2.
A copy of certificate to the
effect that sentence of death has been pronounced upon the person named in the
certificate; and
3.
A report in writing signed by
him containing recommendations and observations (with respect to the convicted
person and his trial) that he thinks fit to make – section 371(1) of the CPA; section 294(1) of the CPC.
The Minister or Commissioner, as the case may be,
shall consider the report made by the trial court in respect of the convicted
person.
There are Advisory Councils on the Prerogative of
Mercy in each of the States of the federation. In respect of federal offences,
the Council of State is the body responsible for exercising the Prerogative of
Mercy.
The Attorney-General may recommend to the Governor or
President after considering the report of the Advisory Council that –
1.
The sentence should be commuted
to imprisonment for life; or
2.
The sentence should be commuted
to any specific period; or
3.
The convicted person should be
otherwise pardoned or reprieved.
Where the convicted person is not pardoned or
reprieved, the death sentence pronounced upon the convict must be carried into
effect – section 371F of the CPA;
section 298 of the CPC.
It should be noted that the powers of the President
are to be exercised by him after consultation with the Council of State, whilst
the Governor’s power shall be exercised by him after consultation with the
Advisory Council of the State on Prerogative of Mercy.
In Okeke v. The State (2003) 15 NWLR (Pt. 842) 25, the Supreme
Court, in refusing an application for prerogative of mercy, held that –
1.
The recommendation of mercy for
convicted persons are matters within the province of the on the prerogative of
mercy; and
2.
It is to that body that a
convicted person, if he so desires, may direct his application for
consideration.
IMPRISONMENT
A sentence of imprisonment takes effect from and
includes the whole of the day of the date on which it was pronounced. However,
under the CPA, a court may impose a suspended sentence, however, there is no
equivalent provision for suspended sentence under the CPC, in which case the
sentence shall not commence immediately but shall commence on any day not
exceeding 3 months after the date of sentence.
FINE
Sections 282 of
the CPA; and section 23 of the CPC provides for the
power of a court to impose fine in lieu of imprisonment. In Price
Control Board v. Ezeama (1982) 1 NCR 7, it was held that even when the
law creating an offence provides that the accused shall be ‘sentenced without
option of fine’ the court still has discretion to impose a fine. But where a
law provides for the minimum (not maximum) period of imprisonment to be imposed
for the commission of an offence, the court cannot impose fine in lieu of
imprisonment.
CANNING
This may be inflicted on the accused in addition or in
lieu of any other form of punishment – section
388 of the CPA.
The following categories of persons cannot be ordered
to be canned –
1.
Persons above the age of 45
years.
2.
Women.
However, where the accused has filed a notice of
appeal, he cannot be canned until the appeal is heard. And the number of
strokes shall not exceed 12 strokes of the cane.
HADDI
LASHING
This is provided for in only the Northern States – section 307 of the CPC. It can be
inflicted on a Moslem, only where the offender is guilty of any of the
following offences –
1.
Adultery.
2.
Drinking alcohol.
3.
Defamation.
4.
Injurious falsehood.
It is inflicted in an enclosed place and the public is
permitted to watch.
FORFEITURE
This may be imposed in addition to or in lieu of any
other form of penalty prescribed for the offence – section 359 of the CPC.
RESTORATIVE
JUSTICE
This is an alternative delinquency sanction that
focuses on repairing the harm done, meeting the victim’s needs, and holding the
offender responsible for his or her actions.
Restorative justice sanctions use a balanced approach,
producing the least restrictive disposition while stressing the offender’s
accountability and providing relief to the victim. The offender may be ordered
to make restitution, to perform community service, or to make amends in some
other way that the court orders.
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