Criminal Procedure Act

Chapter 80

Laws of the Federation of Nigeria 1990

 

 

 

 

 

Arrangement of Sections

 

(The original numbering of sections has been retained in order not to disturb the cross-references to those sections in other enactments.)

 

 

Chapter 1

Preliminary, Arrests, Bail, and Preventive Justice

 

 

Part 1

Preliminary

 

Section

 

1.

Short title.

2.

Interpretation.

 

 

 

 

Part 2

Arrest

 

 

Generally

 

3.

Arrest, how made.

4.

No unnecessary restraint.

5.

Notification of cause of arrest.

6.

Search of arrested persons.

7.

Search of place entered by person sought to be arrested.

8.

Power to break out of any house for purpose of liberation.

9.

Arrested persons to be taken at once to police station.

 

 

 

 

 

 

Arrest without Warrant and Procedure Thereon

 

10.

Arrest by police officer without warrant.

11.

Refusal to give name and residence.

12.

Arrest by private persons.

13.

Arrest by owners of property.

14.

Disposal of person arrested by private person.

16.

Arrest by magistrate.

 

 

Bail on Arrest without

 

17.

Release on bail of a person arrested without warrant.

18.

Power to release on bail before charge is accepted.

19.

Discharge of person for want of evidence.

20.

Police to report apprehensions.

 

 

 

 

 

 

Warrants of Arrest

General Authority to Issue

 

21.

General authority to issue warrant.

 

 

 

 

 

 

Warrants, in General

 

22.

Form and requisites of warrant of arrest.

23.

Warrant issued on complaint only if on oath.

24.

Warrant may issue on any day.

25.

Warrants, to whom directed, and duration.

26.

Omitted as inapplicable as it relates to warrants directed to local government police force which has been abolished.

27.

Warrant of arrest may in exceptional cases be directed to other persons.

 

 

Execution of, in General

 

28.

Execution of warrant and procedure thereon.

29.

Power to arrest on warrant but without the warrant.

 

 

 

 

Bail by Order of Court on Execution of Warrant of Arrest

 

30.

Court may direct particulars of security to be taken on execution of warrant.

 

 

 

 

 

 

Execution of Warrant out of Division or District in which issued

 

31.

Procedure on arrest of persons outside division or district of court issuing warrant.

 

 

 

 

 

 

 

Part 3

Escape and Retaking

 

32.

Recapture of person escaping.

33.

Provisions of sections 7 and 8 to apply to arrests under section 32.

34.

Assistance to judge, magistrate or police officer.

 

 

 

Part 4

Prevention of Offences

 

Security for keeping the Peace and for Good Behaviour

 

 

35.

Power of magistrate to require execution of recognisance for keeping the peace.

36.

Security for good behaviour for suspected persons.

37.

Security for good behaviour for habitual offenders.

38.

Order to be made.

39.

Procedure in respect of person present in court.

40.

Summons or warrant in case of person not so present.

41.

Copy of order under section 38 to accompany summons or warrant.

42.

Power to dispense with personal attendance.

43.

Inquiry as to truth of information.

44.

Order to give security.

45.

Discharge of person informed against.

 

 

 

 

Proceedings in all Cases Subsequent to Order to Furnish Security

 

46.

Commencement of period for which security is required.

47.

Conditions of recognisance.

48.

Power to reject sureties.

49.

Procedure on failure of person to give security.

50.

Power to release persons imprisoned for failure to give security.

51.

Power of High Court to cancel recognisance.

52.

Discharge of sureties.

 

 

 

 

 

 

 

Part 5

Preventive Action of the Police

 

53.

Police to prevent offences and prevent injury to public property.

54.

Information of design to commit such offences.

55.

Arrest to prevent such offences.

 

 

 

Chapter 2.

Provisions Relating in General to all Criminal Trials and Inquiries

 

 

 

Part 6

Application and General

 

56.

Application of Chapter 2.

57.

General authority to bring persons before courts.

 

 

 

 

 

Part 7

 

58.

Deleted by 1967 No. 5.

 

 

 

 

 

 

 

Part 8

The Complainant, Form of Complaint and Time within which the Complaint must be made

 

 

59.

Right of making complaint.

60.

Form and requisites of complaint.

61.

Form of documents in criminal proceedings.

62.

Rule as to statement of exception.

63.

Limitation of period for making a private complaint.

 

 

 

 

 

Part 9

Place of Trial or Inquiry

 

 

Venue

 

64.

Venue.

64A.

Offences against Federal laws.

65.

Judge to decide in case of doubt of venue.

66.

Chief Judge may change venue by order.

 

 

 

 

 

 

Remitting Magistrates

 

67.

Accused person to be remitted in certain cases to another magistrate.

68.

Removal under warrant.

69.

Transfer of case where cause of complaint has arisen out of district of court.

 

 

Assumption of Jurisdiction

 

70.

Courts may assume jurisdiction under certain conditions.

71.

Assumption of jurisdiction after commencement of proceedings.

 

 

 

 

 

Part 10

State Procedure

 

 

Powers of the Attorney-General

 

72.

Informations by the Attorney-General.

 

 

 

 

 

 

Control of State in Criminal Proceedings

 

73.

Nolle prosequi in criminal cases.

74.

Nolle prosequi in committal cases.

75.

 

76.

Deleted by Legal Notice 65 of 1958.

76A.

Inserted by Legal Notice 47 of 1955 and deleted by Legal Notice 65 of 1958.

 

 

 

 

 

Part 11

Proceedings in General

 

 

Institution of Proceedings

 

 

77.

Different methods of instituting criminal proceedings.

78.

Particulars of instituting criminal proceedings in magistrates' courts.

79.

Compelling appearance of an accused person.

80.

Summons and warrant.

81.

Making of complaint and issue of process thereon.

82.

Issue and service on any day.

 

 

 

Enforcing Appearance of Defendant

Issue of Summons

 

 

83.

Issue of summons and contents thereof.

84.

Hearing by consent before return date of summons.

85.

Summons with immediate return date in special circumstances.

86.

Discretion in ex parte applications.

 

 

 

 

 

 

Form and Service of Summons

 

87.

Summons to be in duplicate

88.

Service of summons.

89.

Normal methods of effecting service.

90.

Service where person summoned cannot be found.

91.

Service on Government servant.

92.

Service outside local division or district.

93.

Proof of service when serving officer not present. 94. Receipt of service of summons.

95.

Person refusing to give receipt may be apprehended.

 

 

 

 

Warrant Issued If Somebody Disobeyed

 

96.

Summons disobeyed, warrant may issue.

 

 

 

 

 

 

Issue of Warrant of Arrest on Complaint on Oath

 

97.

Issue of warrant for defendant in the first instance.

98.

Application of sections 22 to 31 to such warrant.

99.

Warrant may issue before or after return date of summons.

 

 

Dispensing with Presence of Accused

 

100.

Power to dispense with personal attendance of accused in certain cases.

 

 

 

 

 

 

Part 12

Miscellaneous Provisions Regarding Process

 

Irregularities

 

 

101.

Irregularity in summons, warrant, service or arrest.

102.

Variation between charge and complaint.

103.

Process valid notwithstanding death or vacation of office of person issuing.

 

 

Saving of Validity of Process

 

104.

Validity of process.

105.

General addressee of process for issue and execution.

106.

Certain provisions applicable to all summonses and warrants in criminal matters.

 

 

Part 13

Search Warrant

 

Issue and Execution

 

 

107.

Cases in which search warrants may be issued.

108.

Discharge of suspected person.

109.

Search warrant to be signed by magistrate.

110.

Search warrants to whom directed.

111.

Time when search warrant may be issued and executed.

112.

Person in charge of closed place to allow ingress.

 

 

Detention and Disposal of Articles Seized

 

 

113.

Detention of articles seized.

114.

Perishable articles may be disposed of by court.

115.

Search for and disposal of gunpowder.

116

Destruction of forged banknotes.

117.

Disposal of counterfeit coin and certain other things.

117A.

Transmission to court of other State.

117B.

Controlled substances.

117C.

Disposal of certain exhibits where no conviction.

117D.

Transitional provisions, etc.

 

 

 

Part 14

Provisions as to Bail and Recognisance Generally

 

 

118.

When bail may be granted by High Court only.

119.

Bail in respect of matters other than offences.

120.

Amount of bail.

121.

Recognisance in respect of minors.

122.

Sureties.

123.

Admission to bail after its refusal.

124.

Notice of right to apply for bail.

125.

Judge may vary bail fixed by magistrate or police.

126.

Before whom recognisance may be executed.

127.

Mode of entering into recognisance.

128.

Continuous bail.

129.

Discharge from custody.

130.

Person bound by recognisance absconding may be committed to prison.

132.

Power to revoke or require higher bail.

133.

Variation of a recognisance if surety unsuitable.

134.

Discharge of sureties for appearance of another. 135. Order of fresh security upon original order.

136.

Surety dying, estate discharged.

137.

Forfeiture of recognisance.

 

 

138.

Mitigation of forfeiture.

139.

Forfeiture on conviction.

140.

Where recognisance forfeited warrant may issue.

141.

Payment on recognisance.

142.

Appeal.

143.

Arrest on breach of recognisance for appearance.

 

 

Part 15

Bringing before Court of Person in Custody

 

144.

Power of court to order prisoner to be brought before it

 

 

 

 

 

 

Part 16

Forms in respect of Summonses, Warrants, Recognisance and other Similar Process

 

145.

Use of forms in First Schedule.

 

 

 

 

 

 

Part 17

Provisions relating to Property and Persons

 

 

Ownership of Property

 

 

146.

Methods of stating ownership of property.

 

 

 

 

 

 

Description of Persons

 

 

147.

Description of persons in criminal process.

 

 

 

 

 

 

 

Rights of Married Women in Respect of Separate Estate

 

 

148.

Remedies of married woman against her husband and others in respect of property.

149.

Husband and wife competent witnesses.

 

 

 

 

 

Part 18

The Charge

 

Form of, and Joinder of offences and Persons

 

 

150.

Form of charges in Second Schedule to be used and adapted.

151.

Form of charge.

152.

Particulars in charge.

153.

Sense of words used in charge.

154.

Ownership or description of property.

155.

When persons may be charged jointly.

156.

Separate charges for distinct offences.

157.

Three offences within twelve months may be charged together.

158.

Trial for more than one offence.

159.

Offences falling within two definitions.

160.

Acts constituting one offence but constituting when combined a different offence.

161.

Where it is doubtful which offence has been committed.

 

 

Variation of Charge

 

 

162.

Procedure on imperfect charge.

163.

Court may alter charge.

164.

Procedure on alteration of charge.

165.

Recall of witnesses when charge altered.

166.

Effect of error.

167.

Objection to charge to be taken at plea.

168.

Objections cured by verdict.

 

 

 

 

 

 

Conviction of one of Several Offences and of Offences not Specifically Charged

 

 

169.

Full offence charged-attempt proved.

170.

Attempt charged-full offence proved.

171.

Liability as to further prosecution.

171A.

On charge of an offence conviction as accessory after the fact to that or connected offence may follow.

172.

Person tried for misdemeanour not to be acquitted if felony proved, unless court so direct.

173.

Conviction of kindred offences relating to property.

174.

Persons charged with burglary may be convicted of kindred offence.

175.

On charge of rape conviction under section 221 of Cap. 77 or of indecent assault may follow.

176.

On charge under section 221 of Cap. 77 conviction of indecent assault may follow.

177.

Where murder or infanticide is charged and concealment of birth is proved.

178.

Where murder is charged and infanticide proved.

179.

Where offence proved is included in offence charged.

 

 

Withdrawal of Remaining Charges

 

 

180.

Withdrawal of remaining charges on conviction on one of several charges.

 

 

 

 

 

 

Part 19

Previous Acquittals or Convictions

 

 

180A.

Interpretation.

181.

Person convicted or acquitted not to be tried again for same or kindred offence.

182.

May be tried again on separate charge in certain cases.

183.

Consequences supervening or not known at previous trial.

184.

Where court at first trial was not competent.

185.

Deleted by 1966 No. 84.

 

 

 

Part 20

Witnesses

 

Enforcing Attendance of Witnesses

 

186.

Issue of summons for witness.

187.

Service of summons on witness.

188.

Warrant for witness after summons.

189.

Issue of warrant for witness in first instance.

190.

Mode of dealing with witness arrested under warrant.

191.

Penalty on witnesses refusing to attend.

192.

Non-attendance of witness on adjourned hearing.

193.

Persons in court may be required to give evidence though not summoned.

 

 

 

 

Refractory Witnesses

 

194.

Witness refusing to be sworn, or produce documents.

 

 

 

 

 

 

Expenses of Witnesses

 

195.

Expenses of witnesses for the prosecution.

196.

Expenses of witnesses for accused.

197.

Adjournment may be granted subject to witnesses' costs.

198.

Ascertainment of witness's expenses.

 

 

 

 

 

 

Examination of Witnesses

 

199.

Application of the Evidence Act.

200.

Power to call or recall witnesses.

201.

Certificates of certain Government technical officers.

202.

Right of reply.

 

 

 

 

 

 

 

Part 21

Publicity and View

 

 

203.

Public to have access to hearing.

204.

Court may be cleared whilst child or young person is giving evidence in certain cases.

205.

Order under section 203 or 204 not to apply to press and certain others.

206.

Prohibition on children being present in court during the trial of other persons.

207.

View by court of locus.

 

 

 

 

 

Part 22

Determination of Age

 

 

208.

Presumption and determination of age.

209.

Age in relation to offences.

 

 

 

 

Part 23

Presence of Parties and Conduct of Trials

 

 

210.

Presence of accused at trial.

211.

Counsel for complainant and for defendant.

212.

(Deleted by L.N. 47 of 1955.)

213.

General control of prosecution by the Attorney-General.

214.

Position in court of person summoned.

 

 

 

 

Part 24

Recording of Plea

 

 

215.

Pleading to information or charge.

216.

Proceeding on charge or count of previous conviction.

217.

Effect of plea of not guilty.

218.

Effect of plea of guilty.

219.

Plea when offence admitted is included in offence charged.

220.

Failure to plead due to malice or otherwise.

221.

Pleas: autrefois acquit or convict, pardon.

 

 

 

 

 

 

Part 25

Persons of Unsound mind

 

 

222.

Interpretation.

223.

Procedure when accused is suspected to be of unsound mind.

224.

Certificate of medical officer.

225.

Release of person of unsound mind pending investigation or trial.

226.

Resumption of inquiry or trial.

227.

Resumption of proceedings under section 223.

228.

When accused appears to have been of unsound mind.

229.

Acquittal on ground of insanity (including insanity resulting from intoxication).

230.

Safe custody of person acquitted.

231.

Observation of prisoners of unsound mind.

232.

Procedure when person of unsound mind reported able to make defence.

233.

Procedure where person of unsound mind reported fit for discharge.

234.

Transfer from one place of custody to another.

235.

Delivery of person of unsound mind to care of relative.

235A.

Removal to another State.

 

 

Part 26

Remand

 

 

236.

Court may remand defendant for eight days.

237.

Court may bring up prisoner during remand.

238.

Magistrate may adjourn where accused cannot appear.

 

Place of Commitment

 

239.

Place of commitment.

 

 

 

 

 

 

Part 27

Addresses

 

Opening of Case for the Prosecution

 

 

240.

Opening of case for the prosecution.

 

 

 

 

 

 

Defence and Reply

 

241.

In certain cases prosecution has no right of reply.

242.

Cases in which prosecution may reply.

243.

Reply by law officer.

 

 

 

Part 27A

Procedure where Constitutional Questions are referred to Higher Court

 

243A.

Reference to Court of Appeal.

 

 

 

 

 

Part 28

Conclusion of Trial

 

 

244.

Deliberation by court.

245.

Judgment to be in writing.

246.

Accused to be discharged if found not guilty.

247.

Accused to be asked whether he has anything to say before sentence.

248.

Sentence.

249.

Conviction on other charges pending.

250.

Security for coming up for judgment.

251.

Delivery of judgment when Judge or magistrate unavoidably absent.

 

 

 

 

 

Warrant of Commitment

 

 

252.

Direct imprisonment.

253.

Authority for carrying out sentences not capital.

 

 

 

 

 

Defects in order or Warrant

 

 

254.

Error or omission not to affect legality of act.

 

 

 

 

 

 

 

Part 29

Costs, Compensation and Damages

 

 

255.

Costs-against accused; against private prosecutor.

256.

Compensation in case of false and vexatious charge.

257.

Enforcement of award of compensation.

258.

Saving of express procedure for awarding costs and compensation.

259.

Order to pay costs appealable.

260.

Injured person may refuse to accept compensation; but payment of compensation is bar to further liability.

 

 

 

Damages in Cases of Dishonesty

 

 

261.

Wrongful conversion or detention of property.

262.

Damages recoverable as penalty.

 

 

 

 

 

Part 30

Seizure, Restitution, Forfeiture and Disposition of Property

 

 

263.

Order for disposal of property regarding which offence committed.

263A.

Meaning of "property" in this Part.

264.

Seizure of things intended to be used in commission of offence.

265.

Destruction of seditious, prohibited or obscene publications and of obscene objects.

266.

Search warrant may be used to search for things subject to sections 264 and 265.

267.

Restoration of possession of immovable property.

268.

Payment to innocent person of money found on accused.

269.

Restitution and disposition of property found on person arrested.

270.

Restitution of property stolen.

271.

Destruction of articles relating to counterfeiting where charge is laid.

272.

Destruction of articles relating to counterfeiting where no charge is laid.

273.

Mode of dealing with forfeiture not pecuniary.

 

 

 

Part 31

Summary Procedure in Perjury

 

 

274.

Perjury. Summary procedure.

 

 

 

 

 

 

 

Chapter 3

 

Part 32

Trials Generally

 

 

275.

Trials.

276.

Summary trial in High Court, limitation.

 

 

 

 

 

Chapter 4

 

Part 33

Summary Trial

 

Application

 

 

277.

Summary trials.

278.

Application of parts of this Act to processes under this Chapter.

 

 

 

 

 

Hearing of Complaint

 

279.

Time and place of hearing.

280.

Non-appearance of prosecutor.

281.

Non-appearance of defendant.

282.

Non-appearance of both parties.

283.

Appearance of both parties.

284.

Withdrawal of complaint.

285.

Manner of hearing.

286.

Discharge of accused when no case to answer.

287.

Defence.

288.

Saving as to section 287(l)(a).

289.

Evidence in reply.

290.

Power to take evidence of persons dangerously ill.

291.

Notices to be given to parties.

292.

Transmission of statement.

293.

When statement may be used in evidence.

294.

Notes of evidence to be taken.

295.

Local inspection.

296.

Cross complaints.

297.

Joinder of complaints.

298.

Procedure where offence appears unsuitable for determination by court of limited jurisdiction.

 

 

 

 

Making of Order

 

299.

Giving of decision upon conclusion of hearing.

 

 

 

 

 

 

Binding over

 

300.

Power to bind parties to be of good behaviour.

 

 

 

 

 

 

Dismissal and Acquittal

 

301.

Effect of judgment of dismissal "on merits", "not on merits" and "without prejudice".

 

 

 

 

 

 

 

Part 34

 

302.

Summary trial by magistrate of indictable cases.

303.

Whipping. In accordance with Part 42.

 

 

 

 

 

Part 35

Summary Trial by Magistrate of Adult Charged with an Indictable Offence

 

 

304.

Summary trial by magistrate of indictable cases.

305.

Power to remand person charged.

306.

Law officer may require case to be adjourned or dealt with specially.

307.

Adjournment for law officer's decision.

308.

General provisions as to dealing summarily with indictable offence.

309.

Security for keeping the peace, in indictable cases tried summarily.

 

 

 

Chapter 5

 

Part 36

Preliminary Inquiry by a Magistrate into an Indictable Offence

 

Place of Inquiry not an Open Court

 

 

310.

Preliminary inquiry not an open court.

 

 

 

 

 

 

 

Local Inspection and Medical Examination

 

 

311.

Making of local inspection and examination of injured person.

312.

Provisions applicable to the taking of evidence in an indictable case.

313.

Binding over of witnesses for prosecution.

314.

Provisions as to taking of depositions, and caution to and statement of accused on proceedings before magistrate.

315.

Procedure where witnesses for defence not present.

316.

Binding over of witness for defence.

317.

Statement generally admissible.

318.

Court may take further evidence after close of case for prosecution.

319.

Deposition of witness unable to attend.

320.

A magistrate may continue a preliminary inquiry begun by another magistrate.

321.

Marking of exhibits.

322.

Magistrate to authenticate depositions and statement of the accused.

323.

Magistrate shall consider defence before committing.

324.

Where evidence contradictory.

 

 

 

 

 

Discharge and Committal for Trial

 

 

325.

Discharge.

326.

Commitment.

327.

Allegation at preliminary inquiry that accused was insane at time of offence.

328.

Procedure when accused does not understand proceedings.

 

 

 

 

 

 

 

Conditional binding over of Witnesses.

 

 

329.

Binding over of witnesses conditionally.

 

 

 

 

 

 

 

Transmission of Depositions, Recognizances and Exhibits

 

 

330.

Returns to be made to court and law officer, crown counsel or Resident.

331.

Depositions free of charge for persons committed.

 

 

 

 

 

Adjudication by Magistrate instead of Committal for Trial

 

332.

When court may adjudicate finally.

 

 

 

 

 

 

 

Control of the State in Proceedings in which an Accused has been Committal for Trial

 

 

333.

Law officer or State counsel may refer back case for further evidence.

 

 

 

 

 

 

 

Chapter 6.

Proceedings after an Accused has been Committal by a Magistrate to the High Court for Trial

 

 

 

Part 37

 

334.

Trial on information.

335.

Certain cases to be tried by jury.

336.

Judge to decide in certain cases.

 

 

 

Information.

 

 

337.

Form of information.

338.

Contents of information.

339.

Application of sections 151 to 180 to informations.

 

 

 

Proceedings Preliminary to Trial

 

 

340.

Procedure on information of offenders.

341.

Signing of information on behalf of State.

342.

Information by private person.

343.

Conditions for private prosecutors.

 

 

 

 

 

 

 

Venue

 

 

344.

Venue.

345.

Change of venue.

346.

Effect of change of venue.

 

 

 

Notices of Trial

 

 

347.

Form of notice of trial.

348.

Copy of information and notice of trial to be delivered to sheriff.

349.

Time and mode of summoning parties on information.

350.

Return of service. 

 

 

 

 

 

 

 

Proceedings at Trial and Subsequent Proceedings

 

 

351.

Bench warrant where accused person does not appear.

352.

Counsel for State and defence in capital cases.

353.

Arraignment. Time for raising certain objections.

 

 

 

Attendance of Witnesses

 

 

354.

Attendance of witness bound by recognisance to attend.

355.

Warrant for apprehension of witness not attending on recognisance.

356.

Warrant for apprehension of witness disobeying summons.

357.

Fine for non-attendance of witness.

358.

Writs of subpoena.

359.

Service of subpoena.

 

 

 

Miscellaneous Provisions

 

 

360.

Application of Part 20 to trials under this Part.

361.

Application of Act to trials under this Part.

362.

Recording of judgment and sentence.

363.

Trials according to practice of High Court of Justice.

 

 

 

 

 

 

 

Part 38

Summary Trial after Committal

 

 

364.

Summary trial after committal where no information filed.

365.

Procedure at trial under this Part.

 

 

 

 

 

Chapter 7

Provisions Relating to Sentences of Death, Imprisonment, Caning and Fine

 

 

Part 39

General

 

 

366.

Construction of provisions relating to punishments.

 

 

 

 

 

 

 

Part 40

Capital Sentences

 

 

367.

Death.

368.

Prior formalities-generally.

369.

Authority for detention.

370.

Judge to report to appropriate authority.

371.

Deleted by 1961 No. 40.

 

371A.

Procedure where power of pardon vested in President.

371B.

Judge's certificate of sentence of death to be sufficient and full authority for execution of offender, unless he is pardoned or reprieved.

371c.

Steps to be taken by the Registrar.

371D.

Judge to forward report to State Commissioner.

371E.

Stage at which State Commissioner to consider report.

371F.

Where no commutation, pardon or reprieve.

371G.

Where a commutation, pardon or reprieve is granted.

371H.

Temporary provisions

372-375

Deleted by 1961 No. 40.

 

 

 

 

 

Procedure where Woman Convicted of Capital Offence is Alleged to be Pregnant

 

 

376.

Procedure where woman convicted of capital offence is alleged to be pregnant.

 

 

 

 

 

 

 

Part 41

Imprisonment

 

 

377.

Imprisonment to be with hard labour unless otherwise ordered.

378.

Sentences on chiefs and detention pending State Commissioner's decision.

379.

Power to order detention for one day in precincts of the court.

380.

Consecutive sentences of imprisonment.

391.

Date from which sentence commences.

382.

Power to inflict fine in lieu of imprisonment.

383.

Escaped prisoners: effect of escape on punishment.

 

 

 

 

 

 

 

Part 42

Caning

 

 

384.

To be caned once only.

385.

Female or male over 45 not to be caned.

386.

Caning with a light rod and not more than twelve strokes.

387.

In certain cases caning additional to other punishment.

388.

Infliction of sentences of corporal punishment.

 

 

 

 

 

Part 43

Fines

 

 

389.

Fine, imprisonment in default of.

390.

General power of awarding imprisonment in default of payment of penalty.

 

 

 

 

 

Assessment of Fine

 

 

391.

Payment and allocation of fines and fees.

 

 

 

 

 

 

 

Commitment of Defendant for Non-Payment of Fine or penalty

 

 

392.

Power to commit defendant in certain cases.

393.

Power to postpone issue of warrant of commitment.

394.

Payment of penalty to person executing warrant.

395.

Commencement of imprisonment.

396.

Varying of or discharging order for sureties.

397.

Right of person imprisoned in default to be released on paying sum.

 

 

 

Distress

 

 

398.

Fines may be ordered to be recoverable by distress.

399.

Warrant of distress.

400.

Part payment reduces period of imprisonment in proportion.

 

 

 

Chapter 8

Detention During, the Pleasure of the President and Deportation

 

 

Part 44

Detention during the Pleasure of the President

 

 

401.

Conditions attaching to detention during pleasure.

 

 

 

 

 

 

 

Part 45

Deportation

 

 

402.

Meaning of "deported".

403.

Non-citizen may ask to leave Nigeria in lieu of deportation order.

404.

Court may recommend deportation for offences punishable by imprisonment without option.

405.

In default of security for the peace.

406.

In case of dangerous conduct.

407.

Procedure prior to court recommending deportation under section 405 or 406.

408.

Procedure on recommendation of deportation under section 404, 405 or 406.

409.

Detention of person concerned.

410.

After consideration President may make an order of deportation.

411.

President may withhold order and remit case to court.

412.

Provisions as to sentence of deportation.

 

 

 

 

 

Chapter 9

Juvenile Offenders and Probation

 

 

Part 46

Juvenile Offenders

 

 

413.

Procedure for trying juvenile offenders.

414.

"Conviction" and "sentence" not to be used in relation to juveniles.

415.

Trial of children and young persons.

416.

Special court may continue even if age incorrect.

417.

Juveniles not to associate with adult accused.

418.

Public not to attend hearing.

419.

Restriction on punishment.

420.

Juveniles found guilty of capital offence.

421.

Detention in the case of certain crimes committed by children or young persons.

422.

Bail of children and young persons arrested.

423.

Custody of young persons not discharged on bail after arrest.

424.

Association with adult whilst in police custody.

425.

Remand or committal to custody in place of detention.

426.

Attendance at court of parent of child or young person charged with an offence.

427.

Methods of dealing with children and young persons charged with offence.

428.

Maximum fine on child four naira.

429.

Power to order parent to pay fine, etc. instead of child or young person.

430.

Removal of disqualifications attaching to felony.

431.

Limitations of costs.

432.

Restrictions on punishment of children and young persons.

433.

Substitution of custody in place of detention for imprisonment.

434.

Escape during detention.

 

 

 

 

 

 

 

Part 47

Probation

 

 

435.

Conditional release of offenders.

436.

Probation orders and conditions of recognisance.

437.

Relieving probation officer of his duties.

438.

Duties of probation officers.

439.

Variation of terms and conditions of probation.

440.

Provisions in case of offender failing to observe conditions of release.

 

 

 

Chapter 10

Assessors and Inquiries by Direction of the Attorney-General

 

 

Part 48

Assessors

 

 

441.

Qualification of assessors.

442.

Sheriff to summon assessors.

443.

Exemption in favour of mercantile establishments.

444.

Sheriff to deliver paper to court.

445.

Omitted as applying only to former Protectorate.

446.

Selection of assessors.

447.

If an assessor unable to attend, trial may proceed.

448.

Adjournment.

449.

Opinion of assessors.

450.

Penalty on assessors not attending.

451.

Notice to persons fined in absence.

452.

Court may exempt persons from serving as assessors.

 

 

 

Part 49

Inquiries by direction of Attorney-General

 

 

453.

Inquiries by direction of Attorney-General.

454.

Conduct of inquiry.

455.

Report.

456.

Procedure.

457.

Person charged entitled to copy of deposition.

458.

Statements of witnesses privileged.

458A.

Application to offences against Federal laws.

 

 

 

 

 

 

Chapter 11

Miscellaneous

 

 

Part 50

Coroner's Warrant

 

 

459.

No committal for trial by coroner.

 

 

 

 

 

 

Appeals

 

460.

(Deleted by L.N. 47 of 1955.)

 

 

 

 

 

 

Fees

 

 

461.

Payment of fees.

462.

State not required to pay fees.

 

 

 

 

Forms

 

 

463.

Use of forms in First, Second and Third Schedules.

 

 

 

 

 

 

Rules of Court

 

 

464.

Power to make rules of court.

 

 

 

 

 

 

Forms and Procedure under Other Written Laws

 

 

465.

Saving as to other forms and procedure.

 

 

 

 

 

 

 

Part 51

Special Provisions relating to Corporations

 

 

466.

(1) (2)

Proceedings in relation to which Part has effect. Application of Part.

467.

Definitions.

468.

Plea by corporation.

469.

Committal of corporation for trial.

470.

Application of section 340(2).

471.

Powers of representative.

472.

 

473.

Non-appearance of representative.

474.

Saving.

475.

Joint charge against corporation and individual.

476.

Service on corporation.

 

 

 

 

 

Chapter 12

 

 

Part 52

Service and Execution throughout Nigeria of the Process of the Courts of the States

 

 

477.

Interpretation.

478.

Service of summons issued on information, etc.

479.

Subpoena or summons to witness may be served in another State by leave.

480.

Orders for production of prisoners.

481.

Mode of proof of service.

482.

Execution of warrants outside State of issue.

483.

Arrest without warrant.

484.

Review of order of magistrate.

485.

Forfeiture of recognisance.

486.

Execution of distress warrants outside State of issue.

486A.

Inserted by L.N. 156 of 1960, deleted by L.N. 112 of 1964.

 

 

 

 

 

Part 53

 

 

487.

Provisions for Directors of Public Prosecutions

488.

Inserted by L.N. 155 of 1960, deleted by L.N. 112 of 1964.

 

 

 

 

 

 

First Schedule

Forms

 

 

Second Schedule

Precedents of Chapters

 

 

Third Schedule

Precedents of Informations

 

Fourth Schedule

Orders of the President

 

 

Fifth Schedule

Precedents Under Part 52

 

 


 

 

Criminal Procedure Act

Chapter 80

Laws of the Federation of Nigeria 1990

 

 

 

 

An Act to make provision for the procedure to be followed in criminal cases in the High Court and Magistrates' Courts

 

 

 

1st June, 1945

 

Chapter I

 

Preliminary, Arrests, Bail and Preventive, Justices

 

Part 1

Preliminary

 

1.     (1)             This Act may be cited as the Criminal Procedure Act.

 

(2)             Chapter 12 of this Act shall apply to the Federation of Nigeria.

 

2.     (1)             In this Act, unless the context otherwise requires-

 

                        "adult" means a person who has attained the age of seventeen years or over;

 

                        "charge" means the statement of offence or statement of offences with which an accused is charged in a summary trial before a court;

 

                        "Chief Judge" means the Chief Judge of the High Court;

 

                        "child" means any person who has not attained the age of fourteen years;

 

                        "complainant" includes any informant or prosecutor in any case relating to a summary conviction offence;

 

                       "complaint" means the allegation that any named person has committed an offence made before a magistrate for the purpose of moving him to issue process under this Act;

 

                        "court" includes the High Court and a magistrate's court;

 

                        "defendant" means any person against whom a complaint is made;

 

                        "district" means a district into which a State is divided for the purposes of any Law under which a magistrate's court is established;

 

                        "division" means a judicial division of the High Court;

 

                         Federal law" means any Act enacted by the National Assembly having effect with respect to the Federation and any Ordinance enacted prior to 1st October, 1960 which under the Constitution of the Federal Republic of Nigeria has effect with respect to the Federation;

 

                        "felony" means an offence on conviction for which a person can, without proof of his having been previously convicted of an offence, be sentenced to death or to imprisonment for three years or more, or which is declared by law to be a felony;

 

                        "fine" includes any pecuniary penalty or pecuniary forfeiture or pecuniary compensation payable under a conviction;

 

                        "future enactment" means any enactment passed after the commencement of this Act;

 

                        "guardian" in relation to a child or young person means the parent or other person having lawful custody of such child or young person, and includes any person who, in the opinion of the court having cognisance of any case in which such child or young person is concerned, has for the time being the custody, control over, or charge of such child or young person;

 

                        "High Court" means the High Court of the State or the Federal High Court;

 

                        "indictable offence" means any offence-

 

(a)            which on conviction may be punished by a term of imprisonment exceeding two years, or

 

(b)            which on conviction may be punished by imposition of a fine exceeding four hundred naira;

 

                 not being an offence declared by the law creating it to be punishable on summary conviction;

 

               "indicted" means the filing of an information against a person who is committed for trial to the High Court after preliminary inquiry by a magistrate;

 

               "infant" means a person who has not attained the age of seven years;

 

               "Judge" means a Judge of the High Court;

    

               "justice of the peace" means a person appointed to be a justice of the peace under the law of a State;

 

               "juvenile offender" means an offender who has not attained the age of seventeen years;

 

               "law officer" has the meaning assigned thereto in the Criminal Code;

 

               "law of a State" means any written law in force in a State which is not a Federal law;

 

               "legal guardian" in relation to an infant, child, young person, or juvenile offender, means a person appointed, according to law, to be his guardian by deed or will, or by order of a court of competent jurisdiction;

 

               "magistrate" means a magistrate appointed in accordance with the law of a State;

 

               "magistrate's court" means a magistrate's court established under the law of a State;

 

              "offence" means an offence against any enactment in force in, a State;

 

              "officer in charge of a police station" includes, when the officer in charge of the police station is absent from the station building or unable for any reason to perform his duties, the police officer present at the station building who is next in seniority to, or who in the absence of such officer in charge performs the duty of, such officer;

 

              "open court" means any room or place in which any court shall be sitting to hear and determine any matters within its jurisdiction and to which room or place the public may have access so far as the same can conveniently contain them;

 

              "order" includes any conviction in respect of a summary conviction offence;

 

               "penalty" includes any pecuniary fine, forfeiture, costs, or compensation recoverable or payable under an order;

 

               "place of safety" includes any suitable place, the occupier of which is willing temporarily to receive an infant, child, or young person;

 

               "police officer" includes any member of the police force established by the Police Act;

 

               "preliminary inquiry" means an investigation of a criminal charge held by a magistrate's court with a view to the committal of an accused person for trial before the High Court;

 

               "prescribed" means prescribed by rules made under the authority of this Act;

 

               "registrar" includes the Chief Registrar and a registrar of the High Court and of a magistrate's court;

 

               "rules" or "the rules" means rules of court relating to the practice and procedure of the High Court or of the magistrates' courts in the exercise of their criminal jurisdiction;

 

               "sentenced to imprisonment" shall include cases where imprisonment is imposed by a court on any person either with or without the option of a fine, or in respect of the non-payment of any sum of money, or for failing to do or abstaining from doing any act or thing required to be done or left undone, and the expression "sentence of imprisonment" shall be construed accordingly;

 

              "sheriff" means a sheriff within the meaning of the Sheriffs and Civil Process Act and includes a deputy sheriff and any person authorised by the sheriff or a deputy sheriff to execute process of a court;

 

              "summary conviction offence" means any offence punishable by a magistrate's court on summary conviction, and includes any matter in respect of which a magistrate's court can make an order in the exercise of its summary jurisdiction;

 

              "summary court" means unless the same is expressly or by necessary implication qualified-

 

(a)            a Judge of the High Court when sitting in court and presiding over a summary trial, and

 

(b)            any magistrate when sitting in open court to hear and determine any matters within his power and jurisdiction either under the provisions of this Act or any other written law,

 

                and such Judge when so sitting and presiding and such magistrate when so sitting as aforesaid shall be deemed to be a "court" or "summary court" within the meaning of this Act;

 

               "summary trial" means any trial by a magistrate and a trial by a Judge in which the accused has not been committed for trial after a preliminary inquiry;

 

                 superior police officer" has the same meaning as in the Police Act;

 

                "whip" means a whip of a pattern approved by the Minister charged with responsibility for prisons;

 

               "young person" means a person who has attained the age of fourteen and has not attained the age of seventeen years.

 

(2)             Nothing in Chapters 1 to 11 inclusive of this Act shall be construed to authorise-

 

(a)            the service outside the State of a summons to enforce the appearance before a court of an accused person, surety, or parent of an accused person;

 

(b)            the service outside the State of a subpoena, summons or notice of hearing to compel the attendance of a witness before a court;

 

(c)             the execution outside the State of a warrant for the arrest of any person or of a search warrant;

 

(d)             the issue of an order to compel the production of any person confined in a prison outside the State;

 

(e)             the execution outside the State of a warrant of distress; or

 

(f)              the execution outside the State of a warrant of committal issued in accordance with section 392 of this Act.

 

Part 2

Arrest

 

Generally

 

3.             In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action.

 

4.             A person arrested shall not be handcuffed, otherwise bound or be subjected to unnecessary restraint except by order of the court, a magistrate or justice of the peace or unless there is reasonable apprehension of violence or of an attempt to escape or unless the restraint is considered necessary for the safety of the person arrested.

 

5.             Except when the person arrested is in the actual course of the commission of a crime or is pursued immediately after the commission of a crime or escape from lawful custody, the police officer or other person making the arrest shall inform the person arrested of the cause of the arrest.

 

6.     (1)            Whenever a person is arrested by a police officer or a private person, the police officer making the arrest or to whom the private person makes over the person arrested may search such person, using such force as may be reasonably necessary for such purpose, and place in safe custody all articles other than necessary wearing apparel found upon him:

 

                         Provided that whenever the person arrested is admitted to bail and bail is furnished, such person shall not, subject to the provisions of subsection (6) of this section, be searched unless there are reasonable grounds for believing that he has about his person, any-

 

(a)             stolen articles; or

 

(b)             instruments of violence or poisonous substance; or

 

(c)             tools connected with the kind of offence which he is alleged to have committed; or

 

(d)            other articles which may furnish evidence against him in regard to the offence which he is alleged to have committed.

 

(2)             Whenever it is necessary to cause a woman to be searched the search shall be made by another woman.

 

(3)            Notwithstanding the other provisions of this section, any police officer or other person making an arrest may in any case take from the person arrested any offensive weapons which he has about his person.

 

(4)            Where any property has been taken under this section from a person charged before a court of competent jurisdiction with any offence, a report shall be made by the police to such court of the fact of such property having been taken from the person charged and of the particulars of such property, and the court shall, if of opinion that the property or any portion thereof can be returned consistently with the interests of justice and with the safe custody of the person charged, direct such property or any portion thereof to be returned to the person charged or to such other person as he may direct.

 

(5)            Where any property has been taken from a person under this section, and the person is not charged before any court but is released on the ground that there is no sufficient reason to believe that he has committed any offence, any property so taken from him shall be restored to him.

 

(6)            When a person is in lawful custody upon a charge of committing any offence of such a nature and alleged to have been committed in such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of the offence it shall be lawful for a qualified medical practitioner, acting at the request of a police officer, or if no such practitioner is procurable, then for such police officer, and for any person acting in good faith in aid and under the direction of such practitioner or police officer, as the case may be, to make such an examination of the person so in custody as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose.

 

7.     (1)             If any person or police officer acting under a warrant of arrest or otherwise having authority to arrest, has reason to believe that the person to be arrested has entered into or is within any place, the person residing in or being in charge of such place shall, on demand of such person acting as aforesaid or such police officer, allow him free ingress thereto and afford all reasonable facilities to search therein for the person sought to be arrested.

 

(2)            If ingress to such place cannot be obtained under subsection (1) of this section, any such person or police officer may enter such place and search therein for the person to be arrested, and in order to effect an entrance into such place, may break open any outer or inner door or window of any house or place, whether that of the person to be arrested or of any other person or otherwise effect entry into such house or place, if after notification of his authority and purpose, and demand of admittance duly made, he cannot otherwise obtain admittance.

 

8.             Any police officer or other person authorised to make an arrest may break out of any house or place in order to liberate himself or any other person who, having lawfully entered for the purpose of making an arrest, is detained therein.

 

9.             Any person who is arrested, whether with or without a warrant, shall be taken with all reasonable despatch to a police station, or other place for the reception of arrested persons, and shall without delay be informed of the charge against him. Any such person while in custody shall be given reasonable facilities for obtaining legal advice, taking steps to furnish bail, and otherwise making arrangements for his defence or release.

 

Arrest with Warrant and Procedure Thereon

 

10.     (1)            Any police officer may, without an order from a magistrate and without a warrant, arrest-

 

(a)            any person whom he suspects upon reasonable grounds of having committed an indictable offence against a Federal law or against the law of any State or against the law of any other State, unless the written law creating the offence provides that the offender cannot be arrested without a warrant;

 

(b)            any person who commits any offence in his presence;

 

(c)            any person who obstructs a police officer while in the execution of his duty, or who has escaped or attempts to escape from lawful custody;

 

(d)            any person in whose possession anything is found which may reasonably be suspected to be stolen property or who may reasonably be suspected of having committed an offence with reference to such thing;

 

(e)            any person whom he suspects upon reasonable grounds of being a deserter from any of the armed forces of Nigeria;

 

(f)            any person whom he suspects upon reasonable grounds of having been concerned in any act committed at any place out of Nigeria which, if committed in Nigeria, would have been punishable as an offence, and for which he is, under any enactment in force in Nigeria, liable to be apprehended and detained in Nigeria;

 

(g)           any person having in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of housebreaking;

 

(h)            any person for whom he has reasonable cause to believe a warrant of arrest has been issued by a court of competent jurisdiction in the State;

 

(I)             any person who has no ostensible means of subsistence and who cannot give a satisfactory account of himself, and

 

(j)             any person found in the State taking precautions to conceal his presence in circumstances which afford reason to believe that he is taking such precautions with a view to committing an offence which is a felony or misdemeanour.

 

(2)            The authority given to a police officer to arrest a person who commits an offence in his presence shall be exercisable in respect of offences committed in such officer's presence notwithstanding that the written law creating the offence provides that the offender cannot be arrested without a warrant.

 

(3)            The powers conferred by this section upon a police officer shall be exercisable within a State by a member of the police force.

 

 

11.   (1)           When any person who in the presence of a police officer has committed or has been accused of committing a non-indictable offence refuses on demand of such officer to give his name and residence, or gives a name or residence which such officer has reason to believe to be false, he may be arrested by such officer in order that his name or residence may be ascertained.

 

(2)           When the true name and residence of such person have been ascertained he shall be released on his executing a recognisance, with or without sureties, to appear before a magistrate if so required:

 

                Provided that if such person is not resident in Nigeria the recognisance shall be secured by a surety or sureties resident in Nigeria.

 

(3)            Should the true name and residence of such person not be ascertained within twenty-four hours from the time of arrest, or should he fail to execute the recognisance, or, if so required to furnish sufficient sureties, he shall forthwith be forwarded to the nearest magistrate having jurisdiction.

 

12.           Any private person may arrest any person in a State who in his view commits an indictable offence, or whom he reasonably suspects of having committed an offence which is a felony or of having committed by night an offence which is a misdemeanour.

 

13.           Persons found committing any offence involving injury to property may be arrested without a warrant by the owner of the property or his servants or persons authorised by him.

 

14.   (1)           Any private person arresting any other person without a warrant shall without unnecessary delay make over the person so arrested to a police officer, or in the absence of a police officer shall take such person to the nearest police station.

 

(2)            If there is reason to believe that such person comes under the provisions of subsection (1) of section 10 of this Act, a police officer shall re-arrest him.

 

(3)            If there is reason to believe that he has committed an indictable offence, and he refuses on the demand of a police officer to give his name and residence, or gives a name or residence which such officer has reason to believe to be false, he shall be dealt with under the provisions of section 11 of this Act; and if there is no sufficient reason to believe that he has committed any offence he shall be at once released.

 

15.           When any offence is committed in the presence of a judge or magistrate within the division or district in which such judge is sitting or to which such magistrate is assigned such judge or magistrate may himself arrest or order any person to arrest the offender and may thereupon, subject to the provisions herein contained as to bail, commit the offender to custody.

 

16.   (1)           Within the district to which he is assigned any magistrate may arrest or direct the arrest in his presence of any person whose arrest upon a warrant he could have lawfully ordered if the facts known to him at the time of making or directing the arrest had been stated before him on oath by some other person.

 

(2)           Where a person is arrested in accordance with the provisions of either section 15 or 16 of this Act, the judge or magistrate making or directing the making of such arrest may deal with the person so arrested in the same manner as if such last named person had been brought before him by or under the directions of any other person.

 

Bail on Arrest without Warrant

 

17.           When any person has been taken into custody without a warrant for an offence other than an offence punishable with death, any officer in charge of a police station may, in any case, and shall, if it will not be practicable to bring such person before a magistrate or justice of the peace having jurisdiction with respect to the offence charged within twenty-four hours after he was so taken into custody, inquire into the case, and, unless the offence appears to such officer to be of a serious nature, discharge the person upon his entering into a recognisance with or without sureties for a reasonable amount to appear before a court at the time and place named in the recognisance but where such person is retained in custody he shall be brought before a court or justice of the peace having jurisdiction with respect to the offence or empowered to deal with such person by section 484 of this Act as soon as practicable whether or not the police inquiries are completed.

 

18.           If, on a person being so taken into custody as aforesaid, it appears to the officer aforesaid that the inquiry into the case cannot be completed forthwith, he may discharge the said person on his entering into a recognisance, with or without sureties for a reasonable amount, to appear at such police station and at such times as are named in the recognisance, unless he previously receives notice in writing from the officer of police in charge of that police station that his attendance is not required, and any such recognisance may be enforced as if it were a recognisance conditional for the appearance of the said person before a magistrate's court for the place in which the police station named in the recognisance is situate.

 

19.           When any person has been taken into custody without a warrant, for an offence other than an offence punishable with death, the officer in charge of the police station or other place for the reception of arrested persons to which such person is brought shall, if after the inquiry is completed he is satisfied that there is no sufficient reason to believe that the person has committed any offence, forthwith release such person.

 

20.           Officers in charge of police stations shall report to the nearest magistrate the cases of all persons arrested without warrant within the limits of their respective stations whether such persons have been admitted to bail or not.

 

Warrants of Arrest

General Authority to Issue

 

21.           Where under any written law, whether passed before or after the commencement of this Act, there is power to arrest a person without warrant a warrant for his arrest may be issued.

 

Warrants, in General

 

22.   (1)            Every warrant of arrest issued under this Act or, unless the contrary is expressly provided, under any other written law shall bear the date of the day of issue, shall contain all necessary particulars and shall be signed by the Judge or magistrate by whom it is issued.

 

(2)            Every such warrant shall state concisely the offence or matter for which it is issued and shall name or otherwise describe the person to be arrested, and it shall order the police officer or officers to whom it is directed to apprehend such person and bring him before the court to answer the complaint or statement, or to testify or otherwise according to the circumstances of the case, and to be further dealt with according to law.

 

23.           No warrant of arrest shall be issued in the first instance in respect of any complaint or statement unless such complaint or statement be on oath either by the complainant himself or by a material witness.

 

24.           A warrant of arrest may be issued on any day including a Sunday or public holiday.

 

25.   (1)            A warrant of arrest may be directed to a police officer by name or to all police officers or to a police officer by name and to all police officers.

 

(2)            it shall not be necessary to make any such warrant returnable at any particular time and a warrant shall remain in force until it is executed or until it is cancelled by a Judge or a magistrate, as the case may be.*

 

26.            (Omitted as inapplicable as it relates to warrants directed to native authority police forces which has been abolished.)

 

27.   (1)            Any court issuing a warrant of arrest may, if its is immediate execution is necessary and no police officer immediately available, direct it to some other person or persons and such person or persons shall execute the same.

 

(2)            Any such person, when executing a warrant of arrest directed to him, shall have all the powers, rights, privileges and protection given to or afforded by law to a police officer executing a warrant of arrest and shall conform with the requirements placed by law on such a police officer.*

 

Execution of, in General

 

(1)            Every warrant of arrest may be executed on any day including a Sunday or public holiday.

 

(2)            Every such warrant may be executed by any police officer at any time and in any place in the State other than within the actual court room in which a court is sitting.

 

(3)           The person executing any such warrant shall, before making the arrest, inform the person to be arrested that there is a warrant for his apprehension unless there is reasonable cause for abstaining from giving such information on the ground that it is likely to occasion escape, resistance, or rescue.

 

(4)            Every person arrested on any such warrant shall, Subject to the provisions of sections 30 and 31 of this Act be brought before the court which issued the warrant as soon as is practicable after he is so arrested.

 

29.           A warrant of arrest may be executed notwithstanding that it is not in the possession at the time of the person executing the warrant but the warrant shall, on the demand of the person apprehended, be shown to him as soon as practicable after his arrest.

 

Bail by Order of Court on Execution of Warrant of Arrest

 

30.   (1)            Any court, on issuing a warrant for the arrest of any person in respect of any matter other than an offence punishable with death may, if it thinks fit by endorsement on the warrant, direct that the person named in the warrant be released on arrest on his entering into such a recognisance for his appearance as may be required in the endorsement.

 

(2)            The endorsement shall specify-

 

(a)            the number of sureties, if any;

 

(b)            the amount in which they and the person named in the warrant are respectively to be bound;

 

(c)            the court before which the person arrested is to attend; and

 

(d)            the time at which he is to attend, including an undertaking to appear at a subsequent time as may be directed by any court before which he may appear.

 

(3)            Where such an endorsement is made, the officer in charge of any police station to which on arrest the person named in the warrant is brought, shall discharge him upon his entering into a recognisance, with or without sureties approved by that officer, in accordance with the endorsement, conditioned for his appearance before the court and at the time and place named in the recognisance.

 

(4)            Where security is taken under this section the officer who takes the recognisance shall cause it to be forwarded to the court before which the person named in the recognisance is bound to appear.

 

(5)           The provisions of subsections (3) and (4) of this section shall not have effect with respect to a warrant executed outside the State.

 

Execution of Warrant out of Division or District in which Issued

 

31.   (1)           Where a warrant of arrest is executed in the State outside the division or district of the court by which it was issued, the person arrested shall, unless security is taken under section 30 of this Act, be taken before the court within the division or district in which the arrest was made.

 

(2)            Such court shall if the person arrested, upon such inquiry as the court deems necessary, appears to be the person intended to be arrested by the court which issued the warrant, direct his removal in custody to such court:

 

                Provided that if such person has been arrested in respect of any matter other than an offence punishable with death-

 

(a)            and is ready and willing to give bail to the satisfaction of the court within the division or district of which he was arrested; or

 

(b)            if a direction had been endorsed under section 30 of this Act on the warrant and such person is ready and willing to give the security required by such direction,

 

                the court shall take bail or security, as the case may be, and shall forward the recognisance, if such be entered into, to the court which issued the warrant.

 

(3)            Nothing in this section shall be deemed to prevent a police officer taking security under section 30 of this Act.

 

Part 3

Escape and Retaking

 

32.            If a person in lawful custody escapes or is rescued, the person from whose custody he escapes or is rescued may pursue and arrest him in any place in Nigeria.

 

33.          The provisions of sections 7 and 8 of this Act shall apply to arrests under the last preceding section, although the person making any such arrest is not acting under a warrant and is not a police officer having authority to arrest.

 

34.           Every person is bound to assist a judge or magistrate or police officer reasonably demanding his aid-

 

(a)            in the taking or preventing the escape of any other person whom such magistrate or police officer is authorised to arrest;

 

(b)            in the prevention or suppression of a breach of the peace, or in the prevention of any injury attempted to be committed to any telegraph or public property.

 

Part 4

Prevention of Offences

 

Security for Keeping the Peace and for Good Behaviour

 

35.   (1)           Whenever a magistrate is informed on oath that any person is likely to commit a breach of the peace or disturb the public tranquillity, or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquillity, the magistrate may in manner hereinafter provided, require such person to show cause why he should not be ordered to enter into a recognisance, with or without sureties, for keeping the peace for such period, not exceeding one year, as the magistrate thinks fit.

 

(2)           Proceedings shall not be taken under this section unless-

 

(a)            the person informed against is in the State; and

 

(b)            such person is within the district to which the magistrate is assigned or the place where the breach of the peace or disturbance is apprehended is within the district to which the magistrate is assigned.

 

36.           Whenever a magistrate is informed on oath that any person is taking precautions to conceal his presence within the local limits of such magistrate's jurisdiction, and that there is reason to believe that such person is taking such precautions with a view to committing any offence, such magistrate may, in manner hereinafter provided, require such person to show cause why he should not be ordered to enter into a recognisance, with sureties, for his good behaviour for such period, not exceeding one year, as the magistrate thinks fit.

 

37.           Whenever a magistrate is informed on oath that any person within the local limits of his jurisdiction-

 

(a)            is by habit a robber, housebreaker, or thief, or (b) is by habit a receiver of stolen property, knowing the same to have been stolen; or

 

(c)            habitually protects or harbours thieves, or aids in the concealment or disposal of stolen property; or

 

(d)            habitually commits or attempts to commit, or aids or abets in the commission of, any offence punishable under Chapter 34, 35, 36 or 41 of the Criminal Code; or

 

(e)            habitually commits or attempts to commit, or aids or abets in the commission of, offences involving a breach of the peace; or

 

(f)            is so desperate or dangerous as to render his being at large without security hazardous to the community,

 

                such magistrate may, in manner hereinafter provided, require such person to show cause why he should not be ordered to enter into a recognisance, with sureties, for his good behaviour for such period, not exceeding three years, as the magistrate thinks fit.

 

38.          When a magistrate acting under section 35, 36 or 37 of this Act deems it necessary to require any person to show cause under such section, he shall make an order in writing setting forth-

 

(a)            the substance of the information received;

 

(b)            the amount of the recognisance to be executed;

 

(c)            the term for which it is to be in force; and

 

(d)            the number, character, and class of sureties, if any, required.

 

39.           If the person in respect of whom such order is made present in court, it shall be read over to him or, if he so desires, the substance thereof shall be explained to him.

 

40.           If such person is not present in court, the magistrate shall issue a summons requiring him to appear, or, when such person is in custody, a warrant directing the officer in whose custody he is to bring him before the court:

 

                 Provided that whenever it appears to such magistrate, upon the report of a police officer or upon other information, the substance of which report or information shall be recorded by the magistrate, that there is reason to fear the commission of a breach of the peace, and that such breach of the peace cannot be prevented otherwise than by the immediate arrest of such person, the magistrate may at any time issue a warrant for his arrest.

 

41.           Every summons or warrant issued under the last preceding section shall be accompanied by a copy of the order made under section 38 of this Act, and such copy shall be delivered by the officer serving or executing such summons or warrant to the person served with or arrested under the same.

 

42.           The magistrate may, if he sees sufficient cause, dispense with the personal attendance of any person called upon to show cause why he should not be ordered to enter into a recognisance for keeping the peace, and may permit him to appear by a legal practitioner.

 

43.   (1)            When an order under section 38 of this Act has been read or explained under section 39 of this Act to a person in court, or when any person appears or is brought before a magistrate in compliance with or in execution of a summons or warrant issued under section 40 of this Act, the magistrate shall proceed to inquire into the truth of the information upon which the action has been taken, and to take such further evidence as may appear necessary.

 

(2)            Such inquiry shall be made, as nearly as may be practicable, in the manner hereinafter prescribed for conducting trials and recording evidence in trials before magistrates' courts.

 

(3)            Pending the completion of the inquiry under subsection (1) of this Act, the magistrate, if he considers that immediate measures are necessary for the prevention of a breach of the peace or disturbance of the public tranquillity or the commission of any offence or for the public safety, may, for reasons to be recorded in writing, direct the person in respect of whom the order under section 38 of this Act has been made to enter into a recognisance, with or without sureties, for keeping the peace or maintaining good behaviour until the conclusion of the inquiry, and may detain him in custody until such recognisance is entered into or, in default of execution, until the inquiry is concluded:

 

                Provided that-

 

(a)            no person against whom proceedings are being taken under section 35 of this Act shall be directed to enter into a recognisance for maintaining good behaviour; and

 

(b)           the conditions of such recognisance, whether as to the amount thereof or as to the provisions of sureties or the number thereof or the pecuniary extent of their liability shall not be more onerous than those specified in the order under section 38 of this Act; and

 

(c)            no person shall be remanded in custody under the powers conferred by this section for a period exceeding fifteen days at a time.

 

(4)            For the purposes of this section the fact that a person comes within the provisions of section 37 of this Act may be proved by evidence of general repute or otherwise.

 

(5)           Where two or more persons have been associated together in the matter under inquiry, they may be dealt with in the same or separate inquiries as the magistrate thinks fit.

 

44.   (1)            If upon such inquiry it is proved that it is necessary for keeping the peace or maintaining good behaviour, as the case may be, that the person in respect of whom the inquiry is made should enter into a recognisance, with or without sureties, the magistrate shall make an order accordingly:

 

                         Provided that-

 

(a)            no person shall be ordered to give security of a nature different from, or of an amount larger than, or for a period longer than, that specified in the order made under section 38 of this Act;

 

(b)           the amount of every recognisance shall be fixed with due regard to the circumstances of the case and shall not be excessive;

 

(c)            when the person in respect of whom the inquiry is made is a minor, the recognisance shall be entered into as provided in section 121 of this Act.

 

(2)            Any person ordered to give security for good behaviour under this section may appeal to the High Court whose decision shall be final.

 

45.           If on an inquiry under section 43 of this Act it is not proved that it is necessary for keeping the peace or maintaining good behaviour, as the case may be, that the person in respect of whom the inquiry is made should enter into a recognisance, the magistrate shall make an entry on the record to that effect, and, if such person is in custody only for the purpose of the inquiry, shall release him, or, if such person is not in custody, shall discharge him.

 

Proceedings in all Cases Subsequent to Order to Furnish Security

 

46.   (1)            If any person in respect of whom an order requiring security is made under section 44 of this Act is, at the time such order is made, sentenced to or undergoing a sentence of imprisonment, the period for which such security is required shall commence on the expiration of such sentence.

 

(2)            In other cases such period shall commence on the date of such order unless the magistrate, for sufficient reason, fixes a later date.

 

47.          The recognisance to be entered into by any such person shall bind him to keep the peace or to be of good behaviour, as the case may be, and in the latter case the commission or attempt to commit or the aiding, abetting, counseling, or procuring the commission anywhere within the State at any time during the continuance of the recognisance of any offence punishable with imprisonment, wherever it may be committed, shall be a breach of the recognisance.

 

48.           A magistrate may refuse to accept any surety offered under any of the preceding sections on the ground that, for reasons to be recorded by the magistrate, such surety is an unfit person.

 

49.   (1)            If any person ordered to give security as aforesaid does not give such security on or before the date on which the period for which such security is to be given commences, he shall, except in the case mentioned in subsection (2) of this section, be committed to prison, or, if he is already in prison, be detained in prison until such period expires or until within such period he gives the security to the court or magistrate who made the order requiring it.

 

(2)            When such person has been ordered by a magistrate to give security for a period exceeding one year, such magistrate shall, if such person does not give such security as aforesaid, issue a warrant directing him to be detained in prison pending the orders of the High Court, and the proceedings shall be laid as soon as conveniently may be before such court.

 

(3)            The High Court, after examining such proceedings and requiring from the magistrate any further information or evidence which it thinks necessary, may make such order in the case as it thinks fit.

 

(4)            The period, if any, for which any person is imprisoned for failure to give security in any specified amount shall not exceed the term prescribed in respect of a like sum in the scale of imprisonment set forth in section 390 of this Act.

 

(5)            If the security is tendered to the officer in charge of the prison, he shall forthwith refer the matter to the court or magistrate who made the order and shall await the order of such court or magistrate.

 

50.           Whenever a magistrate is of opinion that any person imprisoned for failing to give security may be released without hazard to the community, such magistrate shall make an immediate report of the case for the order of the High Court, and such court may, if it thinks fit, order such person to be discharged.

 

51.           The High Court may at any time, for sufficient reasons to be recorded in writing, cancel any recognisance for keeping the peace or for good behaviour executed under any of the preceding sections by order of any court.

 

52.   (1)            Any surety for the peaceable conduct or good behaviour of another person may at any time apply to a magistrate to discharge any recognisance executed under any of the preceding sections within the district to which the magistrate is assigned.

 

(2)            On such application being made, the magistrate shall if satisfied there is good reason for the application issue his summons or warrant, as he thinks fit, requiring the person for whom such surety is bound to appear or to be brought before him.

 

(3)            When such person appears or is brought before the magistrate, such magistrate after hearing such person may discharge the recognisance and in such event order such person to give, for the unexpired portion of the term of such recognisance, fresh security of the same description as the original security. Every such order shall for the purposes of sections 47, 48, 49 and 50 of this Act be deemed to be an order under section 44 of this Act.

 

Part 5

Preventive Action of the Police

 

53.   (1)            Every police officer may interpose for the purpose of preventing, and shall to the best of his ability prevent, the commission of any offence.

 

(2)            A police officer may of his own authority interpose to prevent any injury attempted to be committed in his view to any public property, movable or immovable, or the removal of or injury to any public landmark or buoy or other mark used for navigation.

 

54.           Every police officer receiving information of a design to commit any offence shall communicate such information to the police officer to whom he is subordinate, and to any other officer whose duty it is to prevent or take cognisance of the commission of any such offence.

 

55.           Notwithstanding the provisions of this or any other written law relating to arrest, a police officer knowing of a design to commit any offence may arrest, without orders from a magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot otherwise be prevented.

 

Chapter 2.

Provisions Relating in General to all Criminal Trials and Inquiries

 

Part 6

Application and General

 

56.           The provisions of this Chapter shall apply, save when express provision is made therein in respect of any particular court or form of trial, to all criminal trials, inquiries and other criminal proceedings in the High Court and magistrates' courts.

 

57.           Every court has authority to cause to be brought before it any person who is within the jurisdiction and is charged with an offence committed within the State, or which according to law may be dealt with as if such offence had been committed within the jurisdiction and to deal with such person according to law.

 

Part 7

 

58.           (Deleted by 1967 No. 5.)

 

Part 8

The Complainant, Form of Complaint and Time within which the Complaint must be made

 

59.   (1)            Any person may make a complaint against any other person alleged to have committed or to be committing an offence, unless it appears from the enactment on which the complaint is founded that any complaint for such offence shall be made only by a particular person or class of persons, in which case only the particular person or a person of the particular class may make such a complaint.

 

(2)            Notwithstanding anything to the contrary contained in any enactment, a police officer may make a complaint in a case of assault even though the party aggrieved declines or refuses to make a complaint.

 

60.   (1)            It shall not be necessary that any complaint shall be in writing, unless it is required to be so by the enactment on which it is funded, or by some other enactment; and if a complaint is not made in writing, the court or registrar shall reduce it into writing.

 

(2)            Subject to the provisions of section 23 of this Act, every complaint may unless some enactment otherwise requires, be made without oath.

 

(3)            Every such complaint may be made by the complainant in person, or by a legal practitioner representing him, or by any person authorised in writing in that behalf, and shall be heard in private.

 

(4)            Every such complaint shall be for one offence only, but such complaint shall not be avoided by describing the offence or any material act relating thereto in alternative words according to the language of the enactment constituting such offence.

 

61.           Every complaint, summons, warrant or other document laid, issued or made for the purpose of or in connection with any proceedings before a court for an offence, shall be sufficient if it contains a statement of the specific offence with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge.

 

62.           Any exception, exemption, proviso, condition, excuse, or qualification, whether it does or does not in any enactment creating an offence accompany in the same section the description of the offence, may be proved by the defendant, but need not be specified or negatived in the complaint, and if so specified or negatived, no proof in relation to the matter so specified or negatived shall be required on the part of the complainant.

 

63.           In every case where no time is specially limited for making a complaint for a summary conviction offence in the enactment relating to such offence, such complaint if made other than by a person in his official capacity shall be made within six months from the time when the matter of such complaint arose, and not after.

 

Part 9

Place of Trial or Inquiry

 

Venue

 

64.           Subject to the powers of transfer contained in the Act or Law constituting any court, the place for the trial or investigation of offences by such court shall be-

 

(a)            an offence shall be tried or inquired into by a court having jurisdiction in the division or district where the offence was committed;

 

(b)            when a person is accused of the commission of any offence by reason of anything which has been done, or of anything which has been omitted to be done, and of any consequence which has ensued, such offence may be tried or inquired into by a court having jurisdiction in the division or district in which any such thing has been done or omitted to be done, or any such consequence has ensued;

 

(c)            when an act is an offence by reason of its relation to any other act which is also an offence, a charge of the first mentioned offence may be tried or inquired into by a court having jurisdiction in the division or district either in which it happened, or in which the offence, with which it was so connected happened;

 

                (d)     (i)            when it is uncertain in which of several divisions or districts an offence was committed; or

 

(ii)            when an offence is committed partly in one division or district and partly in another; or

 

(iii)           when an offence is a continuing one, and continues to be committed in more divisions or districts than one; or

 

(iv)           when it consists of several acts committed in different divisions or districts,

 

                  it may be tried or inquired into by a court having jurisdiction in any of such divisions or districts;

 

(e)            an offence committed while the offender is in the course of performing a journey or voyage may be tried or inquired into by a court in or through or into the division or district of whose jurisdiction the offender or the person against whom or the thing in respect of which the offence was committed resides, is or passed in the course of that journey or voyage;

 

(f)            an offence committed at sea or elsewhere out of Nigeria, which according to law may be tried or inquired into in Nigeria, may, subject to the provisions of section 58 of this Act, be so tried or inquired into at any place in Nigeria to which the accused person is first brought, or to which he may be taken thereafter.

 

64A.        Where an offence against a Federal law-

 

(a)            is begun in the State and completed in another State; or

 

(b)            is completed in the State after being begun in another State,

 

                the offender may be dealt with, tried and punished as if the offence had been actually or wholly committed in the State.

 

65.          Whenever any doubt arises as to the magistrate's court in which any offence shall be inquired into or tried, a Judge shall, upon the application of a magistrate or the accused, decide in which magistrate's court the offence shall be inquired into or tried. Any such decision of a Judge shall be final and conclusive except that it shall be open to an accused person to show that no magistrate's court in the State has jurisdiction in the case.

 

66.           The Chief Judge may, by order under his hand, direct that a preliminary inquiry shall be held by a magistrate into any criminal charge in respect of an offence subject to the jurisdiction of the High Court or committed by a person who is subject to the jurisdiction of the High Court but which is alleged to have been committed outside the limits of the magisterial district of such magistrate.

 

Remitting Magistrates

 

67.   (1)            A magistrate, in this and in the next succeeding section referred to as the remitting magistrate, before whom any person who is within the magisterial district of such magistrate and is charged with having committed an offence within the magisterial district of another magistrate is brought shall, unless himself authorised to proceed in the case, send him in custody to the court within the magisterial district in which the offence was committed, or require him to give security for his surrender to such last mentioned court, there to answer the charge and to be dealt with according to law.

 

(2)            If such offence as is mentioned in subsection (1) of this section shall have been committed in a district within which one or more courts shall have concurrent jurisdiction, the remitting magistrate shall, unless himself authorised to proceed in the case, send the person charged in custody to such one of the courts having concurrent jurisdiction as can most conveniently deal with the case, or require him to give security for his surrender to such last mentioned court, there to answer the charge and to be dealt with according to law.

 

(3)            The remitting magistrate shall send to the court to which the person charged is remitted for trial an authenticated copy of the information, summons, warrant, and all other process or documents in his possession, relative to such person.

 

68.           Where any person is to be sent in custody, a warrant shall be issued by the remitting magistrate, and that warrant shall be sufficient authority to any person to whom it is directed to receive and detain the person therein named, and to carry him and deliver him up to the court to which the person charged is remitted for preliminary inquiry or trial. The person to whom the warrant is directed shall execute it according to its tenor without any delay.

 

69.   (1)            If the defendant is in custody and the magistrate directing such transfer thinks it expedient that such custody should be continued, or, if he is not in custody, that he should be placed in custody, the magistrate shall, by his warrant, commit the defendant to prison until he can be taken before a magistrate of the district wherein the cause of complaint arose.

 

(2)            The complaint and recognisance, if any, taken by such first named magistrate under the provisions of this Act shall be by him transmitted to the magistrate before whom the defendant is to be taken; and such complaint and recognisance, if any, shall be treated to all intents and purposes as if they had been taken by such last-mentioned magistrate.

 

(3)            If the defendant is not retained or placed in custody as aforesaid, the magistrate shall inform him that he has directed the transfer of the case as aforesaid, and thereupon the provisions of the last preceding subsection relating to the transmission and use of the documents in the case shall apply.

 

Assumption of Jurisdiction

 

70.   (1)            Notwithstanding the provisions of sections 64, 65 and 67 of this Act, a judge or magistrate of a division or district in which a person is apprehended who is charged with an offence, alleged to have been committed in another division or district, may, if he considers that the ends of justice would be better served by hearing the charge against such person in the division or district in which he has been apprehended and having regard to the accessibility and convenience of the witnesses, proceed to hear the charge and the person charged may be proceeded against, tried and punished in any division or district in which he was apprehended, or is in custody on a charge for the offence, or has appeared in answer to a summons lawfully issued charging the offence, as if the offence had been committed in that division or district, and the offence shall, for all purposes incidental to or consequential on the prosecution, trial or punishment thereof, be deemed to have been committed in that division or district:

 

                         Provided that, if at any time during the course of any proceedings taken against any person before any court in pursuance of this subsection it appears to the court that the accused would suffer hardship if he were proceeded against and tried in the division or district aforesaid, the court shall forthwith, but without prejudice to a magistrate's powers under section 67 of this Act, cease to proceed further in the matter under this subsection.

 

(2)            Where any person is charged with two or more offences, he may be proceeded against, tried and punished in respect of all those offences in any division or district in which he could be proceeded against, tried or punished in respect of any one of those offences, and all the offences with which that person is charged shall, for all purposes incidental to or consequential on the prosecution, trial or punishment thereof, be deemed to have been committed in that division or district.

 

71.           In case any cause is commenced in any other division or district than that in which it ought to have been commenced, the judge or magistrate, as the case may be, may assume jurisdiction in accordance with the provisions of section 70 and all acts performed and all decisions given by the judge or magistrate during the trial or inquiry shall be deemed to be valid in all respects as if the jurisdiction had been assumed prior to the performance of the said acts and the giving of the said decisions.

 

Part 10

State Procedure

 

Powers of the Attorney-General

 

72.   (1)            Notwithstanding anything in this Act contained, the Attorney-General in each State may exhibit to the High Court informations for all purposes for which the Attorney-General for England may exhibit informations in the High Court of Justice in England.

 

(2)            Such proceedings may be taken upon every such information as may lawfully be taken in the case of similar informations filed by the Attorney-General for England so far as the circumstances of the case and the practice and procedure of the High Court will admit.

 

Control of State in Criminal Proceedings

 

73.   (1)            In any criminal proceedings for an offence against a law of the State and at any stage thereof before judgment, the Attorney-General of the State may enter a nolle prosequi either by stating in court or informing the court in writing that the State intends that the proceedings shall not continue and thereupon the accused shall be at once discharged in respect of the charge or information for which the none prosequi is entered.

 

(2)            If the accused has been committed to prison he shall be released, or if on bail the recognisance shall be discharged, and, where the accused is not before the court when such none prosequi is entered, the registrar or other proper officer of the court shall forthwith cause notice in writing of the entry of such none prosequi to be given to the officer in charge of the prison or other place in which the accused may be detained and such notice shall be sufficient authority to discharge the accused or if the accused be not in custody shall forthwith cause such notice in writing to be given to the accused and his sureties and shall in either case cause a similar notice in writing to be given to any witnesses bound over to prosecute.

 

(3)            Where a none prosequi is entered in accordance with the provisions of this section, the discharge of an accused person shall not operate as a bar to any subsequent proceedings against him on account of the same facts.

 

74.   (1)            In any inquiry with respect to an offence against a law of the State before a magistrate and at any stage before an order of committal is made, the Attorney-General of the State may enter a none prosequi by either stating in court or by informing the magistrate in writing that the State intends that the proceedings shall not continue and thereupon the accused shall be at once discharged in respect of the charge for which the none prosequi is entered.

 

(2)           Where, following an inquiry before a magistrate, an accused person is committed for trial, the Attorney-General of the State may at any time after such committal and before the trial of such accused person enter a none prosequi by informing, in writing, the court before which such accused has been committed for trial that the State intends that the proceedings shall not continue and thereupon the accused shall be at once discharged in respect of the charges for which the none prosequi is entered.

 

(3)           Where a none prosequi is entered under this section, the provisions of subsection (2) of section 73 of this Act shall apply and the court shall cause the appropriate action to be taken.

 

(4)            Where a none prosequi is entered in accordance with the provisions of this section, the discharge of an accused person shall not operate as a bar to any subsequent proceedings against him on account of the same facts.

 

75.   (1)            In any trial or inquiry before a magistrate's court any prosecutor with the consent of the court, may, or on the withdrawals from a instruction of the Attorney-General of the State in the case of an offence against a law of the State shall, at any time before judgment is pronounced or an order of committal is made, withdraw from the prosecution of any person either generally or in respect of one or more of the offences with which such person is charged and upon such withdrawal-

 

(a)            if it is made in the course of any inquiry the accused person shall be discharged in respect of such offence; or

 

(b)            if it is made in the course of a trial-

 

(i)             before the accused person is called upon to make his defence, he shall be discharged in respect of such offence; or

 

(ii)             after the accused person is called upon to make his defence, he shall be acquitted in respect of such offence:

 

                 Provided that in any trial before a magistrate in which the prosecutor withdraws in respect of the prosecution of any offence before the accused is called upon to make his defence the magistrate may in his discretion order the accused to be acquitted if he is satisfied upon the merits of the case that such order is a proper one and when any such order of acquittal is made the magistrate shall endorse his reasons for making such order on the record.

 

(2)            Where any private prosecutor withdraws from a prosecution for any offence under the provisions of this section the magistrate may, in his discretion, award costs against such prosecutor.

 

(3)            A discharge of an accused person under this section shall not operate as a bar to subsequent proceedings against him on account of the same facts.

 

76.           (Deleted by Legal Notice 65 of 1958.)

 

76A.         (Inserted by Legal Notice 47 of 1955 and deleted by Legal Notice 65 of 1958.)

 

Part 11

Proceedings in General

 

Institution of Proceedings

 

77.           Subject to the provisions of any other enactment, criminal proceedings may in accordance with the provisions of this Act be instituted-

 

(a)            in magistrates' courts, on a complaint whether or not on oath, and

 

(b)            in the High Court-

 

(i)             by information of the Attorney-General of the State in accordance with the provisions of section 72 of this Act, and

 

(ii)            by information filed in the court after the accused has been summarily committed for perjury by a Judge or magistrate under the provisions of Part 31 of this Act, and

 

(iii)           by information filed in the court after the accused has been committed for trial by a magistrate under the provisions of Part 36 of this Act, and

 

(iv)          on complaint whether on oath or not.

 

78.           Where proceedings are instituted in a magistrate's court they may be instituted in either of the following ways-

 

(a)            upon complaint to the court, whether or not on oath, that an offence has been committed by any person whose presence the magistrate has power to compel, and an application to such magistrate, in the manner hereinafter set forth for the issue of either a summons directed to, or a warrant of arrest to apprehend, such person; or

 

(b)            by bringing a person arrested without a warrant before the court upon a charge contained in a charge sheet specifying the name and occupation of the person charged, the charge against him and the time and place where the offence is alleged to have been committed; and the charge sheet shall be signed by the police officer in charge of the case.

 

79.           A magistrate may issue a summons or warrant as hereinafter provided to compel the appearance before him of any person accused of having committed in any place, whether within or without Nigeria, any offence triable in the State.

 

80.           In every case the court may proceed either by way of summons to the defendant or by way of warrant for his apprehension in the first instance according to the nature and circumstances of the case.

 

81.   (1)            Subject to the provisions of section 59 of this Act any person who believes from a reasonable or probable cause, that an offence has been committed by any person whose, appearance a magistrate has power to compel may make a, complaint thereof to a magistrate who shall consider the allegations of the complainant and may, in his discretion, refuse to issue process recording his reasons for such refusal, or may issue a summons or warrant as he shall deem fit to compel the attendance of the accused person before a magistrate's court in the district.

 

(2)            The magistrate shall not refuse to issue such summons or warrant only because the alleged offence is one for which an offender may be arrested without warrant.

 

82.           A summons may be issued or served on any day including a Sunday or public holiday.

 

Enforcing Appearance of Defendant

 

Issue of Summons

 

83.           Where upon a complaint being made before a magistrate as provided in section 81 of this Act the magistrate decides to issue a summons in the first instance such magistrate shall issue a summons directed to the person complained against, stating concisely the substance of such complaint and requiring him to appear at a certain time and place being not less than forty-eight hours after the service of such summons before the court to answer to the said complaint and to be further dealt with according to law.

 

84.           The court may, if it thinks fit and with the consent of the parties, hear and determine a complaint notwithstanding that the time within which the defendant was required to appear may not have elapsed.

 

85.           Where upon a complaint being made before a magistrate as provided in section 81 of this Act the magistrate decides to issue a summons in the first instance the accused may be directed to appear forthwith in cases where an affidavit is made by the complainant either at the time of making the complaint or subsequently that such defendant is likely to leave the district within forty-eight hours.

 

86.           Nothing contained in section 83, 84 or 85 of this Act shall oblige any magistrate to issue any such summons in any case where the application for an order may by law be made ex parte.

 

Form and Service of Summons

 

87.           Every summons issued by a court under this Act shall be in writing, in duplicate, signed by the presiding officer of such court or by such other officer as the Chief Judge may from time to time prescribe.

 

88.           Every summons shall be served by a police officer or by an officer of the court issuing it or other public servant.

 

89.           The person effecting service of a summons shall effect it by delivering it-

 

(a)            if on an individual, to him personally; or

 

(b)            if on a firm or corporation-

 

(i)             to one of the partners, or

 

(ii)            to a director, or

 

(iii)           to the secretary, or

 

(iv)           to the chief agent within the jurisdiction, or

 

(v)            by leaving the same at the principal place of business in Nigeria of the firm or corporation, or

 

(vi)           to anyone having, at the time of service, control of the business or the firm or corporation;

 

(c)            if on a local government council, then in accordance with the Local Government Law of the State.

 

90.           If service in the manner provided by paragraph (a) of person section 89 of this Act cannot by the exercise of due diligence be effected the serving officer may with leave of the court affix one of the duplicates of the summons to some conspicuous part of the premises or place in which the individual to be served ordinarily resides, and thereupon the summons shall be deemed to have been duly served.

 

91.           Where the person summoned is in the service of government, the court issuing the summons may send it in duplicate to the head officer of the department in which such person is employed for the purpose of being served on such person, if it shall appear to the court that it may be most conveniently so served, and such head officer shall thereupon cause the summons to be served in the manner provided by paragraph (a) of section 89 of this Act and shall return the duplicate to the court under his signature, with the endorsement required by section 93 of this Act. Such signature shall be evidence of the service.

 

92.           Where a court desires that a summons issued by it shall be served at any place outside the division or district in which it is issued the court shall send such summons in duplicate to a court within the division or district in which the person summoned resides or is to be there served.

 

93.   (1)            Where the officer who served a summons is not present at the hearing of the case, proof of such service, if within the division or district of the court issuing the summons, may be by endorsement on the duplicate of such summons and when service has been effected without the division or district of the issuing court proof of service shall be by affidavit made before a magistrate or other prescribed person and such endorsement and affidavit shall form part of the record.

 

(2)            Such endorsement and affidavit shall show the manner in which such summons was served and in the case of an affidavit may be attached to the duplicate of the summons and returned to the issuing court.

 

94.           Where a summons has been served upon the person to whom it is addressed or is delivered to any other person the person to whom it is addressed or the person to whom it is handed, as the case may be, shall sign a receipt therefor on the back of the duplicate. Where service is not effected by handing the summons to an individual but by some other method approved by this Act, the person effecting service shall endorse on the duplicate particulars of the method by which he has effected service.

 

95.           Every person who is required to sign a receipt on the back of a duplicate summons to the effect that he has received the summons and fails to sign such receipt may be arrested by the person serving the summons and taken before the court which issued the summons and may be detained in custody or committed in prison for such time not exceeding fourteen days as the court may think necessary.

 

Warrant Issued if Summons Disobeyed

 

96.           If the court is satisfied that the accused has been served with a summons and the accused does not appear at the time and place appointed in and by the summons and his personal attendance has not been dispensed with under section 100 of this Act, the court may issue a warrant to apprehend him and cause him to be brought before such court.

 

Issue of Warrant of Arrest on Complaint on Oath

 

97.           Where upon a complaint being made before a issue of magistrate as provided in section 23 of this Act such magistrate decides to issue a warrant in the first instance such magistrate shall issue a warrant to apprehend the person complained against and to bring him before the court to answer the said complaint and be dealt with according to law.

 

98.           Where a warrant of arrest is issued in consequence of a complaint on oath as aforesaid the provisions of sections 22 to 31 of this Act shall apply to such warrant.

 

99.           Notwithstanding the issue of a summons as in section 81 provided a warrant may be issued at any time before or after the time appointed for the appearance of the accused.

 

Dispensing with Presence of Accused

 

100.   (1)         Whenever a magistrate issues a summons in respect of any offence to which there is annexed a penalty not exceeding one hundred naira or imprisonment not exceeding six months or both such penalty and imprisonment, the magistrate may, on the application of the accused and if he sees reason to do so and shall, on such application when the offence with which the accused is charged is punishable only by a penalty not exceeding one hundred naira, dispense with the personal attendance of the accused provided that the accused pleads guilty in writing or appears and so pleads by a legal practitioner.

 

(2)            The magistrate trying any case in which the presence of the accused has been dispensed with may, in his discretion, at any subsequent stage of the proceedings, direct the personal attendance of the accused and, if necessary, enforce such attendance by means of the issue of a warrant to apprehend the accused and bring him before the court.

 

(3)            If a magistrate imposes a fine on an accused person whose personal attendance has been dispensed with under this section, the magistrate may at the same time provide either that if the fine be not paid within a stated time the amount shall be recovered by distress or that the accused shall be imprisoned for a period calculated in accordance with the provisions contained in section 390 for the non-payment of a fine.

 

(4)            If, in any case in which under this section the attendance of an accused person is dispensed with, previous convictions are alleged against such person and are not admitted in writing or through such person's legal practitioner, the magistrate may adjourn the proceedings and direct the personal attendance of the accused and, if necessary, enforce such attendance in the same manner as in subsection (2) of this section.

 

(5)            Whenever the attendance of an accused has been so dispensed with and his attendance is subsequently required the cost of any adjournment for such purpose shall be borne in any event by the accused.

 

Part 12

Miscellaneous Provisions regarding Process

 

Irregularities

 

101.         When any accused person is before a magistrate whether voluntarily, or upon summons, or after being apprehended with or without warrant, or while in custody for the same or any other offence, the preliminary inquiry or trial may be held notwithstanding any irregularity, illegality, defect, or error in the summons or warrant, or the issuing, service, or execution of the same, and notwithstanding the want of any complaint upon oath, and notwithstanding any defect in the complaint, or any irregularity or illegality in the arrest or custody of the accused person.

 

102.         No variance between the charge contained in the summons or warrant and the offence alleged in the complaint, or between any of them and the evidence adduced on the part of the prosecution, shall affect the validity of any proceedings at or subsequent to the trial or preliminary inquiry.

 

103.         A summons, warrant of any description or other process issued under any written law shall not be invalidated by reason of the person who signed the same dying, ceasing to hold office or have jurisdiction.

 

Saving of Validity of Process

 

104.         The following provisions shall have effect in respect of warrants of commitment and warrants of distress-

 

(a)            a warrant of commitment shall not be held void by reason only of any defect therein, if it is therein alleged that the offender has been convicted, or ordered to do or abstain from doing any act or thing required to be done or left undone, and there is a good and valid order to sustain the same;

 

(b)            a warrant of distress shall not be held void by reason only of any defect therein, if it is therein alleged that an order has been made, and there is a good and valid order to sustain the same; and a person acting under a warrant of distress shall not be deemed a trespasser from the beginning by reason only of any defect in the warrant or of any irregularity in the execution of the warrant; but this enactment shall not prejudice the right of any person to satisfaction for any special damage caused by any defect in or irregularity in the execution of a warrant of distress.

 

105.  (1)          In addition to the provisions of sections 25 to 27 of this Act in respect of warrants of arrest, all summonses, warrants of every description and process of whatever description shall be sufficiently addressed for service or execution by being directed to the sheriff.

 

(2)           Notwithstanding the provisions of subsection (1) of this section, any such document may be addressed to a person by name or to an officer by his official designation.

 

(3)           Where a warrant of arrest is addressed to the sheriff such warrant may be executed by any police officer or officer of a court.

 

106.        The provisions contained in sections 22, 24 and 28 of this Act in respect of warrants of arrest, and the provisions contained in this Part relating to summonses, warrants of any description and other process and their issue, service, enforcement and execution shall, so far as may be, apply to every summons, warrant of any description and other process issued in respect of matters within the criminal jurisdiction of the court under any written law.

 

Part 13

Search Warrant

 

Issue and Execution

 

107.  (1)         Where a magistrate is satisfied by information upon oath and in writing that there is reasonable ground for believing that there is in the State in any building, ship, carriage, receptacle or place-

 

(a)            anything upon or in respect of which any offence has been or is suspected to have been committed; or

 

(b)            anything which there is reasonable ground for believing will afford evidence as to the commission of any offence; or

 

(c)            anything which there is reasonable ground for believing is intended to be used for the purpose of committing any offence,

 

                the magistrate may at any time issue a warrant, called a search warrant, authorising an officer of the court, member of the police force, or other person therein named-

 

(i)             to search such building, ship, carriage, receptacle or place for any such thing, and to seize and carry such thing before the magistrate issuing the search warrant or some other magistrate to be dealt with according to law, and

 

(ii)            to apprehend the occupier of the house or place where the thing was found if the magistrate thinks fit so to direct on the warrant.

 

(2)            In this section and section 108 of this Act, "offence" includes an offence against a law of any other State of Nigeria which would be punishable in the State if it had been committed in that State.

 

108.         If the occupier of any building or the person in whose possession any thing named in a search warrant is found is brought before a magistrate and complaint is not made that he has committed an offence, he shall forthwith be discharged by such magistrate.

 

109.  (1)           Every search warrant shall be under the hand of the magistrate issuing the same.

 

 (2)            Every such warrant shall remain in force until it is executed or until it is cancelled by the court which issued it.

 

110.         A search warrant may be directed to one or more may be persons and when directed to more than one it executed by all or by any one or more of them. Time when search warrant may be issued and executed.

 

111.  (1)          A search warrant may be issued and executed on any day including a Sunday or public holiday. It shall be executed between the hours of five o'clock in the forenoon and eight o'clock at night but the court may, in its discretion, authorise by the warrant the execution of the warrant at any hour.

 

 (2)          Where a magistrate authorises the execution of a search warrant at any hour other than between the hours of five o'clock in the forenoon and eight o'clock at night such authorisation may be contained in the warrant at the time of issue or may be endorsed thereon by any magistrate at any time thereafter prior to its execution.

 

112.  (1)          Whenever any building or other thing or place liable to search is closed, any person residing in or being in charge of such building, thing or place shall, on demand of the police officer or other person executing the search warrant, allow him free ingress thereto and afford all reasonable facilities for a search therein.

 

 (2)           If ingress into such building, thing or place cannot be so obtained the police officer or other person executing the search warrant may proceed in the manner prescribed by sections 7 and 8 of this Act.

 

 (3)           When any person in or about such building, thing or place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched. If the person to be searched is a woman she shall if practicable be searched by another woman and may be taken to a police station for that purpose.

 

Detention and Disposal of Articles Seized

 

113.        When upon the execution of a search warrant anything referred to in section 107 of this Act is seized and brought before any magistrate, he may detain or cause it to be detained, taking reasonable care that it is preserved until the conclusion of the trial and if any person is committed for trial, or if any appeal is made, he may order it further to be detained in such manner and place and by such person as he may direct for the purpose of the trial or pending the hearing of the appeal. If no person is committed for trial or no appeal is made, the magistrate shall, except in the cases hereinafter mentioned, unless he is authorised or required by law to dispose of it otherwise, direct

 

(a)            that the property or a part thereof be restored to the person who appears to the magistrate to be entitled thereto, and if he be the person charged, that it be restored either to him or to such other person as the person charged may direct; or

 

(b)           that the property or a part thereof be applied to the payment of any costs or compensation directed to be paid by the person charged.

 

114.        Where anything seized under a search warrant and brought before a magistrate is of a perishable or noxious nature such thing may be disposed of forthwith in such manner as the court may direct.

 

115.         If the thing to be searched for under a search warrant is gunpowder or any other explosive or dangerous or noxious substance or thing, the person making the search shall have the powers and protection as are given by any written law for the time being in force to any person lawfully authorised to search for any such thing, and the thing itself shall be disposed of in the same manner as directed by any such written law, or, in default of such direction, as the Commissioner of Police of the State may either generally or in any particular instance order.

 

116.         If, in consequence of the execution of a search warrant, there is brought before any magistrate any forged banknote, banknote paper, instrument, or other thing, the possession of which, in the absence of lawful excuse, is an indictable offence according to any enactment for the time being in force the judge, if such person is committed for trial, or, if there is no commitment for trial, the magistrate may cause such thing to be defaced or destroyed.

 

117.         If, under any such warrant, there is brought before any magistrate any counterfeit coin or other thing, the possession of which, with knowledge of its nature and without lawful excuse, is an indictable offence according to any enactment for the time being in force, every such thing shall be delivered up to the Commissioner of Police of the State or to any person authorised by him to receive the same, as soon as it has been produced in evidence and is no longer required as such or as soon as it appears that it will not be required to be so produced:

 

                Provided that a magistrate may in his discretion instead of so delivering up such coins or things order that they be destroyed in his presence.

 

117A.     Where a search warrant is issued in respect of an offence against the law of any other State of Nigeria and a summons has been issued for that offence by, or any person has been charged with that offence before, a court of that State, the magistrate issuing the search warrant may unless he has disposed of the thing in accordance with section 1 14 of this Act, transmit anything seized and brought before him to that court and in relation to anything so transmitted the functions conferred upon a magistrate by sections 113, 114, 116 and 117 of this Act shall be exercised and performed by that court instead of by the magistrate who issued the search warrant.

 

Disposal of Certain Exhibits

 

117B. (1)         For the purposes of this section and sections 117c,117D of this Act, a controlled substance is-

 

(a)            a substance mentioned in Part A of the Second Schedule to the Food and Drugs Act; or

 

(b)            a substance declared by the Minister by order in the Federal Gazette or by certificate under his hand to be a controlled substance for such purposes.

 

 (2)           An order or certificate made or given under subsection (1)(b) of this section shall not be invalidated by reason of the fact that-

 

(a)            it has retrospective effect; or

 

(b)            it relates to an exhibit produced in any criminal proceedings which were instituted or concluded before the date when the order or certificate was made or given, or before the commencement of this section or of sections 117c, 117D of this Act.

 

117c.  (1)         Notwithstanding the provisions of any law to the contrary, where-

 

(a)           criminal proceedings instituted for any alleged offence do not result in the conviction of the accused person; and

 

(b)           any controlled substance has been produced to the court as an exhibit in the proceedings, the court, if the prosecutor makes application in that behalf, shall order the controlled substance to be confiscated.

 

 (2)          Where an order is made under this section in respect of any controlled substance, the controlled substance shall be handed over to the Nigeria Police and disposed of as the Minister may direct.

 

 (3)           Any person aggrieved by an order made under this section may within fifteen days of the making of the order appeal in writing -to the Minister, who may dispose of the appeal himself or refer it for disposal to any person or persons appearing to him to be suitable.

 

 (4)          The making of an order under this section shall not be affected by the fact that an appeal to a court having appellate jurisdiction has been or may be instituted in connection with the relevant proceedings, and no such jurisdiction shall include power to vary, cancel or otherwise affect the order.

 

117D.  (1)       An application may be made under section 117C of this Act in relation to any controlled substance notwithstanding that the relevant proceedings were concluded before the commencement of sections 117B and 117c of this Act, and on any such application the court shall make an order under the said section 117c of this Act accordingly unless at the time of the application the controlled substance in question is no longer in the control of the court.

 

 (2)           For the purposes of sections 117B and 117c of this Act-

 

               "Minister" means the Minister charged with the responsibility for internal affairs.

 

Part 14

Provisions as to Bail and Recognisance Generally

 

118.  (1)          A person charged with any offence punishable with death shall not be admitted to bail, except by a judge of the High Court.

 

 (2)          Where a person is charged with any felony other than a felony punishable with death, the court may, if it thinks fit, admit him to bail.

 

 (3)          When a person is charged with any offence other than those referred to in the two last preceding subsections, the court shall admit him to bail, unless it sees good reason to the contrary.

 

119.        Where any person is brought before a court on any process in respect of any matter not included within section 118 of this Act, such person may, in the discretion of the court, be released upon his entering, in the manner hereinafter provided, into a recognisance conditioned for his appearing before such court or any other court at the time and place mentioned in the recognisance.

 

120.        The amount of bail to be taken in any case shall be in the discretion of the court by whom the order for the taking of such bail is made, shall be fixed with due regard to the circumstances of the case and shall not be excessive.

 

121.        Where in any case the person in respect of whom the court makes an order requiring that a recognisance be entered into is a minor, the minor shall not execute the recognisance but the court shall require a parent, legal guardian or other fit person, with or without sureties, to enter into a recognisance that the minor shall do what is required under the court's order.

 

122.        An accused admitted to bail may be required to produce such surety or sureties as, in the opinion of the court admitting him to bail, will be sufficient to ensure his appearance as and when required and shall with him or them enter into a recognisance accordingly.

 

123.         A judge of the High Court may, if he thinks fit, admit any person charged before a court in the State subject to the jurisdiction of the High Court to bail although the court before whom the charge is made has not thought fit to do so.

 

124.        Where a magistrate, after a preliminary inquiry commits a person for trial and does not admit him to bail the magistrate shall inform the person so committed of his right to apply for bail to a Judge of the High Court.

 

125.         Notwithstanding the provisions of sections 119 and 120 of this Act, a Judge of the High Court may in any case direct that any person in custody in the State be admitted to bail or that the bail required by a magistrate's court or police officer be reduced.

 

126.        When as respects any recognisance the court has fixed the amount in which the sureties, if any, are to be bound, the recognisance need not be entered into before the said court, but may be entered into by the parties before any other court, or before any registrar, or before any superior officer of police or officer in charge of a police station, or where any of the parties is in a Government prison before the superintendent or other person in charge of such prison, and thereupon all the consequences of law shall ensue and the provisions of this Law with respect to recognisance before a court shall apply as if the recognisance had been entered into before the said court.

 

127.         Where as a condition of the release of any person the is required to enter into a recognisance with sureties, the recognisance of the sureties may be taken separately and either before or after the recognisance of the principal, and if so taken the recognisance of the principal and sureties shall be as binding as if they had been taken together and at the same time.

 

128.        Where a person is remanded on bail, the recognisance may be conditioned for his appearance at every time and place to which during the course of the proceedings the hearing may be from time to time adjourned, without prejudice, however, to the power of the court to vary the order at any subsequent hearing.

 

129.  (1)          Where the entering into of a recognisance is a condition of the release of any person, that person shall be released as soon as the recognisance has been entered into and if he is in prison or police custody, the court shall issue an order of release to the officer in charge of the prison or other place of detention and such officer on receipt of the order shall release him.

 

 (2)           Nothing in this section or in any other section relating to bail shall be deemed to require the release of any person liable to be detained for some matter other than that in respect of which the recognisance was entered into or to which the bail relates.

 

130.         If it is made to appear to any court by information on oath by a complainant, surety or other person that any person bound by recognisance to appear before any court or police officer is about to leave Nigeria, or, for the purpose of evading justice, is about to leave or has left the division or district of the court before which he is to appear or in which he normally resides, the court may cause him to be arrested and may commit him to prison until the trial or preliminary inquiry unless the court shall see fit to admit him to bail upon further recognisance.

 

131.         Where an accused person has been admitted to bail and circumstances arise which, if the accused person had not been admitted to bail would, in the opinion of a law officer or police officer, justify the court in refusing bail or in requiring bail of greater amount, a judge or magistrate, as the case may be, may, on the circumstances being brought to his notice by a law officer or police officer, issue his warrant for the arrest of the accused person and, after giving the accused person an opportunity of being heard, may either commit him to prison to await trial or admit him to bail for the same or an increased amount as the judge or magistrate may think just.

 

132.  (1)          Where an accused person who has been admitted to bail by a magistrate is indicated by a law officer for an offence which is not bailable by a magistrate, the magistrate shall, on being informed of the fact by any superior police officer, issue his warrant for the arrest of the accused person and commit him to prison in the same manner as if he had been originally committed for trial for the offence for which he is indicted.

 

 (2)           For the purposes of this section, a person shall be deemed to be indicted when the information against him has been filed in a High Court.

 

133.         If at any time after a recognisance has been entered into it appears to the court that for any reason the surety or sureties are unsuitable, such court may issue a summons or warrant for the appearance of the principal, and upon his coming to the court may order him to execute a fresh recognisance with other surety or sureties, as the case may be.

 

134.  (1)          Any surety for the appearance of a person may at any time apply to the court to discharge the recognisance either wholly or so far as it applies to the applicant.

 

 (2)           On such application being made the court shall issue a warrant of arrest directing that the principal to the recognisance be brought before the court.

 

 (3)           On the appearance of such principal pursuant to the warrant, or on his voluntary surrender, the court shall direct the recognisance to be discharged either wholly or so far as it relates to the applicant or applicants and shall call upon the person previously bound to find other sufficient surety or sureties and enter into a fresh recognisance and if he fails to do so may deal with him in the same manner as if he were a person who has failed to comply with an order to enter into a recognisance, with or without sureties, as the case may be.

 

135.         When any surety to a recognisance becomes insolvent or dies or when any recognisance is forfeited under the provisions of section 137 of this Act, the court may order the person from whom such recognisance was demanded to furnish fresh security in accordance with the directions of the original order and, if such security is not furnished, such court may proceed as if there had been default in complying with such original order.

 

136.        Where a surety to a recognisance dies before the recognisance is forfeited his estate shall be discharged from all liability in respect of the recognisance.

 

137.        Where it is proved to the satisfaction of a court that a recognisance entered into under Chapters 1 to 11 inclusive of this Act has been forfeited the court shall record the facts and by order declare the recognisance to be forfeited.

 

138.        The court may at any time cancel or mitigate the forfeiture, upon the person liable under the recognisance applying and giving security, to the satisfaction of the court, for the future performance of the condition of the recognisance and paying, or giving security for the payment of the costs incurred in respect of the forfeiture or upon such other conditions as the court may think just.

 

139.  (1)          Where a recognisance to keep the peace and to be of good behaviour or not to do or commit some act or thing, has been entered into by any person as principal or as surety before a court, a court may, upon proof of the conviction of the person bound as principal by such recognisance of any offence which is by law a breach of the condition of the same, by order, adjudge such recognisance to be forfeited and adjudge the persons bound thereby, whether as principal or as sureties or any of such persons to pay the sums for which they are respectively bound.

 

 (2)          A certified copy of the judgment of the court by which such person was convicted of such offence may be used as evidence in proceedings under this section and, if such certified copy is so used, the court shall presume such offence was committed by such person until the contrary is proved.

 

140.        Where any recognisance is declared or adjudged to be forfeited, the court having jurisdiction over the matter of the complaint may, forthwith or at any time after such declaration, issue a warrant of commitment against any person liable, whether as principal or surety under such recognisance, for any term not exceeding the term prescribed in respect of a like sum in the scale of imprisonment set forth in section 390 of this Act, with or without hard labour, unless the amount due under such recognisance is sooner paid.

 

141.        All sums paid or recovered in respect of any recognisance declared or adjudged by a court in pursuance of section 140 of this Act to be forfeited shall be paid to the proper officer of the court.

 

142.        Any order of forfeiture made under section 137 or 139 of this Act shall be subject to appeal in the case of a ]magistrate's order to the High Court and in the case of a judge's order to the Court of Appeal.

 

143.         When any person who is bound by any recognisance entered into under this Act to appear before a court does not so appear, the officer presiding in such court may issue a warrant directing that such person be arrested and brought before him.

 

Part 15

Bringing before Court of Person in Custody

 

144.  (1)         Where any person for whose appearance or arrest a court is empowered to issue a summons or warrant is confined in any prison the court may issue an order to the officer in charge of such prison requiring him to cause such prisoner to be brought in proper custody at a time to be named in the order before such court.

 

 (2)           The officer so in charge, on receipt of such order, shall act in accordance therewith and shall provide for the safe custody of the prisoner during his absence from the prison for the purpose aforesaid.

 

Part 16

Forms in respect of Summons, Warrants, Recognisance and other similar Process

 

145. Subject to the express provisions, if any, of the rules, the forms contained in the First Schedule to this Act may, in accordance with any instructions contained in the said forms, and with such variations as the circumstances of the particular case may require, be used in the cases to which they apply, and, when so used, shall be good and sufficient in law.

 

Part 17

Provisions relating to Property and Persons

 

Ownership of Property

 

146.        Where in any complaint, summons, warrant of any description, charge sheet, information or any document whatsoever issued by a court in the exercise of its criminal jurisdiction it is necessary to refer to the ownership of any property whether movable or immovable which belongs to or is in the possession of more than one person the following provisions shall apply-

 

(a)            if the property belonged to or was in the possession of more than one person whether as partners in trade or otherwise, joint tenants, tenants in common or other joint owners or possessors it may be described in the name of any one of such persons and another or others;

 

(b)            property of a joint-stock company, company, association, club or society having a recognised manager, agent or secretary in Nigeria may, subject to the provisions of any other written law, be described as the property of such manager, agent or secretary without naming such manager, agent or secretary, or alternatively the property of any joint-stock company, company, association, club or society which has a legal or registered title may be declared as belonging to such joint-stock company, company, association, club or society by its legal or registered title;

 

(c)            property belonging to or provided for the use of any public establishment, service or department may be described as the property of the State;

 

(d)           where it is necessary to state the ownership of any church, chapel, mosque or building or place set apart for religious worship or of anything belonging to or being in the same, it may be stated that such church, chapel, mosque, or building or place, or such thing is the property of any clergyman, minister or other person officiating therein or of the churchwarden or church- wardens of such church, chapel or building or place, without its being necessary to name him or them;

 

(e)            where it is necessary to state the ownership of any money or other property whatsoever in the charge, custody, or under the control of any public officer such money or property may be stated to be the money or property of the State;

 

(f)            where it is necessary to state the ownership of any work or building made, erected or maintained either wholly or in part at the expense of the public revenue of Nigeria or of any part thereof or of any township, town, or village thereof or of any local government, or of anything belonging to or being in or used in relation to the same, or of anything provided for the use of any part or of any public institution or establishment, or of any materials or tools provided or used for repairing any such work or building or any public road or high-way, or of any other property whatsoever, whether movable or immovable as aforesaid, it shall be sufficient to state that such property is the property of the State or of the township, town, or village, or of any local government, as the case may be, without naming any of the inhabitants of any such areas or jurisdictions;

 

(g)            property belonging to a woman who has contracted a marriage recognised as a valid monogamous marriage under English law or who has contracted a marriage under the Marriage Act may be stated as belonging to such married woman.

 

Description of Persons

 

147.        Where in any complaint, summons, warrant of any description, charge sheet, information or any document whatsoever issued by a court in the exercise of its criminal jurisdiction it is necessary to refer to any person the description or designation of that person shall be such as is reasonably sufficient to identify him, without necessarily stating his correct name, or his abode, style, degree, or occupation, and if, owing to the name of the person not being known or for any other reason, it is impracticable to give such a description or designation, such description or designation shall be given as is reasonably practicable in the circumstances, or such person may be described as "a person unknown":

 

                Provided that no person who is accused of an offence shall be described as "a person unknown" except in the case of a verdict found upon a coroner's inquisition.

 

Rights of Married Women in Respect of Separate Estate

 

148.         Every woman who has contracted a marriage recognised as a valid monogamous marriage under English law or who has contracted a marriage under the Marriage Act shall have in her own name against all persons whatsoever, including the husband of such marriage, subject as regards her husband to the proviso hereinafter contained, the same remedies and redress by way of criminal proceedings for the protection and security of her own separate property as if such property belonged to her as an unmarried woman:

 

                Provided that any proceeding by one spouse against the other shall be governed by the provisions of section 36 of the Criminal Code Act.

 

149.         In any proceedings taken under the provisions of section 148 of this Act the husband and wife shall be competent and compellable witnesses in accordance with the provisions of Part 9 of the Evidence Act.

 

Part 18

The Charge

 

Form of and Joinder of Offences and Persons

 

150.        Charges may be as in the forms set out in the Second Schedule of this Act and may be modified in such respects as may be necessary to adapt them to the circumstances of each case.

 

151.  (1)          Every charge shall state the offence with which the accused is charged and if the written law creating the offence gives it any specific name the offence may be described in the charge by that name only.

 

 (2)           If the written law which creates the offence does not give it any specific name so much of the definition of the offence shall be stated as to give the accused notice of the matter with which he is charged.

 

 (3)           The written law and the section of the written law against which the offence is said to have been committed shall be set out in the charge.

 

 (4)           The fact that a charge is made is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case.

 

 (5)           If the accused has previously been convicted of any offence and it is intended to prove such previous conviction for the purpose of affecting the punishment which the court may award, the subsequent offence shall first be charged and then, if the previous offence is one, which under the provisions of any written law, may be so charged a statement of such previous offence containing the fact, date and place of such previous conviction shall be added:

 

                 Provided that when the trial is had before a judge and jury or a judge with assessors the statement of such previous offence shall not be read out or charged save in accordance with the provisions of section 216 of this Act.

 

152.  (1)          The charge shall contain such particulars as to the time and place of the offence and the person, if any, against whom or the thing, if any, in respect of which it was committed as are reasonably sufficient to give the accused notice of the matter with which he is charged.

 

 (2)          Where the accused is charged with criminal breach of trust, fraudulent appropriation of property, fraudulent falsification of accounts or fraudulent conversion it shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been committed and the dates between which the offence is alleged to have been committed without specifying particular items or exact dates and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 156 of this Act.

 

 (3)          The particulars in the charge shall describe the offence shortly in ordinary language avoiding as far as possible the use of technical terms.

 

 (4)           Where the nature of the offence is such that the particulars required by section 151 of this Act and subsections (1) to (3) of this section do not give the accused sufficient notice of the matter with which he is charged, the charge shall also contain such particulars of the manner in which the offence was committed as will be sufficient for that purpose.

 

153.  (1)          In every charge words used in describing an offence shall be deemed to have been used in the sense attached to them respectively in the written law creating such offence.

 

  (2)           Figures and abbreviations may be used for expressing anything which is commonly expressed thereby.

 

154.  (1)         The description of property in a charge shall be in ordinary language and such as to indicate with reasonable clearness the property referred to and if the property is so described it shall not be necessary, except when required for the purpose of describing an offence depending on any special ownership of property or special value of property, to name the person to whom the property belongs or the value of the property.

 

 (2)          Where property is vested in more than one person and the owners of that property are referred to in the charge the property may be described as being owned in accordance with the appropriate provision set out in section 146 of this Act.

 

 (3)           Coin and bank or currency notes may be described as money, and any averment as to any money, so far as regards the description of the property, shall be sustained by proof of any amount of coin or of any bank or currency note, although the particular species of coin of which such amount was composed or the particular nature of the bank or currency note shall not be proved, and in cases of stealing and defrauding by false pretences, by proof that the accused dishonestly appropriated or obtained any coin or any bank or currency note, or any portion of the value thereof, although such coin or bank or currency note may have been delivered to him in order that some part of the value thereof should be returned to the party delivering the same or to any other person, and such part shall have been returned accordingly.

 

 (4)          Where the ownership of any property is described under paragraph (b) of section 146 of this Act as being in any joint-stock company, company, association, club or society by its registered title, proof of the registration of the company, association, club or society shall not be required unless the court decides that such proof shall be given, in which case the further hearing may be adjourned for the purpose or the court may, in its discretion, amend the proceedings by substituting the name of some person or persons for such registered title.

 

        (5)    (a)           Where a written law constituting an offence states the offence to be the omission to do any one of any different acts in the alternative, or the doing or the omission to do any act in any one of any different capacities, or with any one of any different intentions, or states any part of the offence in the alternative, the acts, omission, capacities, or intentions, or other matters stated in the alternative in the written law, may be stated in the alternative in the charge.

 

(b)            It shall not be necessary in any charge where the offence is one constituted by a written law to negative any exception or exemption from or qualification to the operation of the written law creating the offence.

 

 (6)          The description or designation of the accused in a charge or of any other person to whom reference is made therein may be described in the manner set forth in section 147 of this Act.

 

 (7)          Where it is necessary to refer to any document or instrument in a charge, it shall be sufficient to describe it by any name or designation by which it is usually known, or by the purport thereof, without setting out any copy thereof.

 

 (8)           Subject to any other provisions of this Act, it shall be sufficient to describe any place, time, thing, matter, act, or omission whatsoever to which it is necessary to refer in any charge in ordinary language in such a manner as to indicate with reasonable clearness the place, time, thing, matter, act, or omission referred to.

 

 (9)           It shall not be necessary in stating any intent to defraud deceive or injure to state an intent to defraud, deceive or injure any particular person, where the written law creating the offence does not make an intent to defraud, deceive or injure a particular person an essential ingredient of the offence.

 

155.        When more persons than one are accused of the same offence or of different offences committed in the same transaction or when a person is accused of committing an offence and another of abetting or being accessory to or attempting to commit such offence or when a person is accused of any offence of theft, criminal misappropriation, criminal breach of trust and another of receiving or retaining or assisting in the disposal or concealment of the subject matter of such offence, they may be charged and tried together or separately as the court thinks fit.

 

156.         For every distinct offence with which any person is accused there shall be a separate charL3,e and every such charge shall be tried separately except in the cases mentioned in sections 157 to 161 of this Act.

 

157.  (1)          When a person is accused of more offences than one committed within the period of twelve months from the first to the last of such offences whether in respect of the same person or thing or not he may be charged with and tried at one trial for any number of them not exceeding three.

 

 (2)           Any offence shall be deemed to be an offence of the same kind as an attempt to commit such an offence where such attempt is itself an offence.

 

158.         If in one series of acts or omissions so connected as to form the same transaction or which form or are together part of a series of offences of the same or a similar character more offences than one are committed by the same person charges for such offences, whether felonies, misdemeanours or simple offences, may be joined and the person accused tried therefor at one trial.

 

159.         If the acts or omissions alleged constitute an offence failing within two or more separate definitions in any written law for the time being in force under which offences are defined or punished the person accused of them may be charged with and tried at one trial for each of such offences.

 

160.         If several acts or omissions, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence the person accused of them may be charged with and tried at one trial for the offence constituted by such acts or omissions when combined or for any offence constituted by any one or more of such acts.

 

161.         If a single act or omission or series of acts or omissions is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences and any number of such charges may be tried at once or he may be charged in the alternative with having committed some one of the said offences.

 

Variations of Charge

 

162.        When any person is arraigned for trial on an imperfect or erroneous charge the court may permit or direct the framing of a new charge or add to or otherwise alter the original charge.

 

163.         Any court may alter or add to any charge at any time before judgment is given or verdict returned and every such alteration or addition shall be read and explained to the accused.

 

164.  (1)           If a new charge is framed or alteration made to a charge under the provisions of section 162 or section 163 this Act the court shall forthwith call upon the accused to plead thereto and to state whether he is ready to be tried on such charge or altered charge.

 

 (2)           If the accused declares that he is not ready, the court shall consider the reasons he may give and if proceeding immediately with the trial is not likely in the opinion of the court to prejudice the accused in his defence or the prosecutor in his conduct of the case, the court may proceed with the trial as if the new or altered charge had been the original charge.

 

 (3)           If the new or altered charge is such that proceeding immediately with the trial is likely, in the opinion of the court, to prejudice the accused or the prosecutor the court may either direct a new trial or adjourn the trial for such period as the court may consider necessary.

 

 (4)           Where a charge is so amended, a note of the order for amendment shall be endorsed on the charge, and the charge shall be treated for the purpose of all proceedings in connection therewith as having been filed in the amended form.

 

165.        When a charge is altered by the court after the commencement of the trial the prosecutor and the accused shall be allowed to recall or re-summon any witness who may have been examined and examine or cross-examine such witness with reference to such alteration.

 

166.         No error in stating the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any stage of the case as material unless the accused was in fact misled by such error or omission.

 

167.         Any objection to a charge for any formal defect on the face thereof shall be taken immediately after the charge has been read over to the accused and not later.

 

168.         No judgment shall be stayed or reversed on the ground of any objection which if stated after the charge was read over to the accused or during the progress of the trial might have been amended by the court nor-

 

(a)            because of any error committed in summoning or swearing the jury or assessors or any of them; nor

 

(b)           because any person who has served upon the jury or as an assessor was not qualified to fit as a juror or assessor; nor

 

(c)            because of any objection which might have been stated as a ground of challenge of any juror, nor for any informality in swearing a juror or witness or any of them; nor

 

(d)            because of any variance between the charge or any process relating thereto and the evidence adduced in support of the charge as to the time at which the cause of complaint is alleged to have arisen if it is proved that such complaint was in fact made within the time, if any, limited by law for making the same; nor

 

(e)            because of any variance between the charge or any process relating thereto and the evidence adduced in support of the charge as to the place in which the cause of complaint is alleged to have arisen; nor

 

(f)            because of any alleged defect in substance or in form between any complaint, warrant or other process relating to the charge and the evidence adduced in respect of the charge.

 

Conviction of one of Several Offences and of Offences not Specifically Charged

 

169.        Where a person is charged with an offence but the evidence establishes an attempt to commit the offence he may be convicted of having attempted to commit that offence although the attempt is not separately charged.

 

170.         Where a person is charged with an attempt to commit an offence but the evidence establishes the commission of the full offence the accused person shall not be entitled to an acquittal but he may be convicted of the attempt and punished accordingly.

 

171.         Where a person has been convicted of an attempt under either section 169 or 170 of this Act such person shall not subsequently be liable to be prosecuted for the offence for which he was convicted of attempting to commit.

 

171A.      Where a person is charged with an offence and the evidence establishes that he became an accessory after the fact to that offence or to some other offence of which a person charged with the first-mentioned offence may be convicted by virtue of any of sections 169, 170 and 172 to 179 of this Act, he may be convicted as an accessory after the fact to that offence or that other offence, as the case may be, and be punished accordingly.

 

172.         If upon the trial of any person for a misdemeanour or simple offence it shall appear that the facts proved in evidence amount in law to a felony, such person shall not by reason thereof be entitled to be acquitted of such misdemeanour or simple offence and no person tried for such misdemeanour or simple offence shall be liable to be afterwards prosecuted for felony on the same facts, unless the court shall think fit, in its discretion, to stop the trial and if it is a case tried with a jury to discharge the jury from giving any verdict and to direct such person to be indicted or charged for felony, in which case such person may be dealt with in all respects as if he had not been put upon his trial for such misdemeanour or simple offence.

 

173.        Where a person is charged with any of the following offences, that is to say-

 

(a)            stealing any property, contrary to section 390 of the Criminal Code;

 

(b)            obtaining or inducing the delivery of any property by a false pretence, and with intent to defraud, contrary to section 419 of the Criminal Code;

 

(c)            obtaining or inducing the delivery or payment of any property or money by means of a fraudulent trick or device, contrary to section 421 of the Criminal Code;

 

(d)            receiving any property obtained by means of an act constituting a felony or misdemeanour, contrary to section 427 of the Criminal Code Act,

 

                 and the evidence establishes the commission by him with respect to the same property of any other of those offences, he may be convicted of that other offence although he was not charged therewith.

 

174.  (1)           If on any trial for any of the offences mentioned in Chapter 37 of the Criminal Code Act the facts proved in evidence justify a conviction for some other of the said offences and not the offence wherewith the defendant is charged he may be found guilty of the said other offence and thereupon he shall be punished as if he had been convicted on a charge or an information charging him with such offence.

 

(2) & (3) Deleted by 1966 No. 84.

 

175.        If on any trial for rape or for defilement of a girl under conviction the age of thirteen years the facts proved in evidence under section authorised a conviction under section 221 of the Criminal Code or for an indecent assault and not the offence wherewith the accused is charged, he may be convicted of an offence under section 221 of the Criminal Code or of indecent assault, as the case may be, and thereupon he shall be punished as if he had been convicted on a charge or an information charging him with such offence or indecent assault.

 

176.         If on any trial for an offence under section 221 of the Criminal Code the facts proved in evidence warrant a conviction for an indecent assault and not the offence wherewith the accused is charged the accused may be convicted of indecent assault although he was not charged with that offence.

 

177.        Where upon the trial of any person for the murder of any child or for infanticide it appears upon the evidence that such person was not guilty of murder or of infanticide, as the case may be, but was guilty of the offence specified in section 329 of the Criminal Code, such person may be found guilty of that offence.

 

178.  (1)         Where upon the trial of a woman for the murder of her newly-born child it a pears upon the evidence that having regard to the provisions of section 327A of the Criminal Code she was not guilty of murder but was guilty of infanticide she may be found guilty of infanticide.

 

 (2)          Nothing in subsection (1) of this section shall prevent a woman who is tried for the murder of her newly-born child from-

 

(a)            being convicted of manslaughter; or

 

(b)            being found guilty of concealment of birth in pursuance of section 177 of this Act; or

 

(c)            being acquitted upon the ground that by virtue of section 28 or 29 of the Criminal Code she was not criminally responsible, and being dealt with under section 230 of this Act.

 

179.  (1)          In addition to the provisions hereinbefore specifically made, whenever a person is charged with an offence consisting of several particulars a combination of some only of which constitutes a complete lesser offence in itself and such combination is proved but the remaining particulars are not proved he may be convicted of such lesser offence or may plead guilty thereto although he was not charged with it.

 

 (2)          When a person is charged with an offence and facts are proved which reduce it to a lesser offence he may be convicted of the lesser offence although he was not charged with it.

 

Withdrawal of Remaining Charges

 

180.  (1)         When more charges than one are made against a person and a conviction has been had on one or more of them the prosecutor may, with the consent of the court, withdraw the remaining charge or charges or the court, of its own motion, may stay the trial of such charge or charges.

 

 (2)           Such withdrawal shall have the effect of an acquittal on such charge or charges unless the conviction which has been had is set aside in which case subject to any order of the court setting aside such conviction, the court before which the withdrawal was made may, on the request of the prosecutor, proceed upon the charge or charges so withdrawn.

 

Part 19

Previous Acquittals or Convictions

 

180A.        In this Part of this Act, "offence" includes an offence against the law of any other State of Nigeria.

 

181.  (1)          Without prejudice to section 171 of this Act, a person charged with an offence (in this section referred to as "the offence charged") shall not be liable to be tried therefor if it is shown-

 

(a)            that he has previously been convicted or acquitted of 1966 No. 84.the same offence by a competent court; or

 

(b)            that he has previously been convicted or acquitted by a competent court on a charge on which he might have been convicted of the offence charged; or

 

(c)            that he has previously been convicted or acquitted by a competent court of an offence other than the offence charged, being an offence of which, apart from this section, he might be convicted by virtue of being charged with the offence charged.

 

 (2)           Nothing in subsection (1) of this section shall prejudice the operation of any law giving power to any court, on an appeal, to set aside a verdict or finding of any other court and order a re-trial.

 

182.        A person acquitted or convicted of any offence may afterwards be tried for any distinct offence for which a separate charge might have been made against him on the previous trial under the provisions of section 158 of this Act.

 

183.        A person acquitted or convicted of any offence constituted by any act or omission causing consequences which together with such act or omission constitute a different offence from that for which he was acquitted or convicted may afterwards be tried for such last mentioned offence if the consequences had not happened or were not known to the court to have happened at the time when he was acquitted or convicted when such consequences create the offence of murder or manslaughter.

 

184.         A person acquitted or convicted of any offence constituted by an act or omission may, notwithstanding such acquittal or conviction, be subsequently charged with and tried for the same or any other offence constituted by the same acts or omissions if the court by which he was first tried was not competent to try the offence with which he was first charged.

 

185.          (Deleted by 1966 No. 84.)

 

Part 20

Witnesses

 

Enforcing Attendance of Witnesses

 

186.  (1)           If the court is satisfied that any person is likely to give material evidence for the prosecution or the defence the court may issue a summons for such person requiring him to attend, at a time and place to be mentioned therein, before the court to give evidence respecting the case and to bring with him any specified documents for things and any other documents or things relating thereto which may be in his possession or power or under his control.

 

 (2)           If the prosecutor is not a public officer the person to whom such summons is addressed shall not be bound to attend unless his traveling expenses are tendered to him.

 

187.         Every such summons shall be served upon the person to whom it is directed in the same manner as is set out in section 89 or 91 of this Act or, with leave of the court, section 90 and the provisions of sections 92 to 95 of this Act shall apply to such summons.

 

188.         If the person to whom any such summons is directed does not attend before the court at the time and place mentioned therein, and there does not appear to the court on inquiry to be any reasonable excuse for such non-attendance, then, after proof to the satisfaction of the court that the summons was duly served or that the person to whom the summons is directed wilfully avoids service, the court, on being satisfied that such person is likely to give material evidence, may issue a warrant to apprehend him and to bring him, at a time and place to be mentioned in the warrant, before the court in order to testify as aforesaid.

 

189.         If the court is satisfied in the first instance, by proof Upon oath, that any person likely to give material evidence, either for the prosecution or for the defence, will not attend to give evidence without being compelled so to do, then, instead of issuing a summons, it may issue a warrant in the first instance for the apprehension of such person.

 

190.  (1)          Every witness arrested under a warrant issued in the first instance shall, if practicable and the hearing of the case for which his evidence is required is appointed for a time which is more than twenty-four hours after the arrest, be taken before a magistrate, and the magistrate may, on his furnishing security by recognisance to the satisfaction of the magistrate for his appearance at such hearing, order him to be released from custody, or shall, on his failing to furnish such security, order him to be detained for production at such hearing.

 

 (2)           The provisions of sections 30 and 31 of this Act relating to bail of accused persons and of sections 106 and 144 of this Act shall apply to witnesses.

 

 (3)           A witness arrested or detained under this section shall not be kept in the same room or place as the defendant, if the defendant is in custody:

 

                 Provided that non-compliance with this subsection shall not vitiate any proceedings.

 

191.         Any witness who-

 

(a)            refuses or neglects, without reasonable cause, to attend at a court in compliance with the requirements of a summons duly served in the manner prescribed by law; or

 

(b)            departs from the precincts of the court without the leave of the judge or magistrate holding the same,

 

                 shall be liable, on summary conviction, to a penalty not exceeding forty naira, or to imprisonment for any term not exceeding two months:

 

                 Provided that no complaint shall be made for any offence under this section except by the order of the court made during the hearing of the case for which the evidence of the witness is required.

 

192.         Every witness who is present when the hearing or further hearing of a case is adjourned, or who has been notified of the time and place to which such hearing or further hearing is so adjourned, shall be bound to attend at such time and place, and, in default of so doing, may be dealt with in the same manner as if he had refused or neglected to attend before the court in obedience to a summons to attend and give evidence.

 

193.         Any person present in court and compellable as a witness, whether a party or not in a cause, may be compelled by the court to give evidence, and produce any document in his possession, or in his power, in the same manner and subject to the same rules as if he had been summoned to attend, and give evidence, or to produce such document and may be punished in like manner for any refusal to obey the order of the court.

 

Refractory Witnesses

 

194.  (1)         When any person attending either in obedience to a summons or after notification as in section 193 of this Act or by virtue of a warrant or being present in court and being verbally required by the court to give evidence in any case-

 

(a)            refuses to be sworn as a witness; or

 

(b)           having been so sworn, refuses to answer any question put to him by the sanction of the court; or (c) refuses or neglects to produce any documents which he is required by the court to produce,

 

                without in any such case offering any sufficient excuse for such refusal or neglect, the court may, if it thinks fit, adjourn the hearing of the case for any period not exceeding eight days where practicable, and may in the meantime, by warrant, commit such person to prison or other place of safe custody, unless he sooner consents to do what is so required of him.

 

 (2)           If such person, upon being brought before the court at or before such adjourned hearing again refuses to do what is so required of him, the court may, if it thinks fit, again adjourn the hearing of the case, and commit him for the like period, and so again from time to time until such person consents to do what is so required of him.

 

 (3)           Nothing herein contained shall affect the liability of any such person to any other punishment or proceeding for refusing or neglecting to do what is so required of him, or shall prevent the court from disposing of the case in the meantime according to any other sufficient evidence taken by it.

 

Expenses of Witnesses

 

195.         Where any person appears before the court on summons, recognisance or by virtue of a warrant to give evidence against any person accused of any offence the court may order payment, in accordance with the provisions of any rules of court, of the costs and expenses of such witness together with compensation for his trouble and loss of time.

 

196.        The court may in its discretion, at the request of any person who appears before such court on summons, recognisance or by virtue of a warrant to give evidence on behalf of an accused person, order payment in accordance with the provisions of any rules of court to such witness of such sum of money as to the court seems reasonable and sufficient to compensate him for the expenses, trouble, and loss of time which he incurred or sustained in attending before the court.

 

197.         In addition to any other power conferred on a Court the court may, if it considers it proper so to do on adjournment granted at the request of either or any party, direct that the amount payable to any witnesses in accordance with the provisions of this Act and any rules of court, or such sum not exceeding such amount aforesaid as the court may fix, shall be paid by the party requesting the adjournment to such witnesses as may be present and whose evidence it has not been possible to take owing to the granting of the adjournment.

 

198.        The amount of the expenses and compensation payable to any witness attending before the court shall ascertained by the registrar, certified under his hand and shall be paid out of general revenue to the witness by the Accountant-General of the Federation.

 

Examination of witnesses

 

199.         Subject to the provisions of any other written law the examination of witnesses shall be in accordance with the provisions of Parts 9 and 10 of the Evidence Act.

 

200.        The court at any stage of any trial, inquiry or other proceedings under this Act may call any person as a witness or recall and re-examine any person already examined and the court shall examine or recall and re-examine any such person if his evidence appears to the court to be essential to the just decision of the case.

 

201.         Certificates signed by any of the officers named section 41 of the Evidence Act, shall be admissible in evidence in accordance with the provisions of sections 41 to 43 of the Evidence Act.

 

202.         In cases where the right of reply depends upon the question whether evidence has been called for the defence the fact that the person charged has been called as a witness shall not of itself confer on the prosecution the right of reply:

 

                 Provided that a law officer when appearing personally as counsel for the prosecution shall in all cases have the right of reply.

 

Part 21

Publicity and View

 

203.        Subject to the provisions of sections 204 and 223 of this Act and of any other written law specifically relating thereto the room or place in which any trial is to take place under this Act shall be an open court to which the public generally may have access as far as it can conveniently contain them:

 

                 Provided that the judge or magistrate presiding over such trial may, in his discretion and subject to the provisions of section 205 of this Act, exclude the public at any stage of the hearing on the grounds of public policy, decency or expedience:

 

                 Provided further that where the court is sitting in a place other than in a building the authority given to exclude the public shall be construed as being authority to prevent the public approaching so near to where the court is sitting as, in the opinion of the judge or magistrate, to be able to hear what is taking place at the trial or be able to communicate with any person allowed to be present thereat.

 

204.         In addition to and not in mitigation of any powers which a court may possess to hear proceedings in camera the court may, where a person who in the opinion of the court has not attained the age of seventeen is called as witness in any proceedings in relation to an offence against or any conduct contrary to decency or morality, direct that all or any persons not being members or officers of the court or parties to the case, their legal practitioners or persons otherwise directly concerned in the case, be excluded from the court during the taking of the evidence of such person.

 

205.  (1)          An order made under either section 203 or 204 of this Act excluding the public from a court shall not unless specifically stated-

 

(a)            authorise the exclusion of bonafide representatives of a newspaper or news agency; or

 

(b)            apply to messengers, clerks and other persons required to attend at the said court for purposes connected with their employment.

 

 (2)          Where such an order is made the judge or magistrate, as the case may be, shall record the grounds upon which such decision is taken.

 

206.         No infant, other than an infant in arms, or child shall be permitted to be present in court during the trial of any person charged with an offence or during any proceedings preliminary thereto and if so present, shall be ordered to be removed unless he is the person charged with the alleged offence or his presence is required as a witness or otherwise for the purposes of justice in which event he may remain for so long as his presence is necessary.

 

207.  (1)          Where it appears to the court that in the interest of justice the court should have a view of any place, person or thing connected with the case the court may, where the view relates to a place, either adjourn the court to that place and there continue the proceedings or adjourn the case and proceed to view the place, person or thing concerned.

 

 (2)           The accused shall be present at the view.

 

 (3)           In the case of any such view being had the court shall give such directions as may seem requisite for the purpose of preventing communication between the witnesses and the accused:

 

                 Provided that a breach of any such directions shall not affect the validity of the proceedings unless the court otherwise directs.

 

 (4)           If the trial is with assessors the assessors shall accompany the judge on the view.

 

Part 22

Determination of Age

 

208.        Where a person is before any court and it appears to the court that such person is an infant, or a child, or a young person, or an adult, the court may make due inquiry as to the age of that person and for that purpose may take such evidence as may be forthcoming at the time, or at the time to which the inquiry may be adjourned but an order or judgment of the court shall not be invalidated by any subsequent proof that the age of that person has not been correctly stated to the court, and the age presumed or declared by the court to be the age of that person shall for the purposes of this Act be deemed to be the true age of that person.

 

209.        Where in a charge for any offence, it is alleged that the person by or in respect of whom the offence was committed was a child or young person or was under or above any specified age, and he appears to the court to have been at the date of the commission of the alleged offence a child or young person, or to have been under or above the specified age, as the case may be, he shall for the purposes of this Act be presumed at that date to have been a child or young person or to have been under or above that age, as the case may be, unless the contrary is proved.

 

Part 23

Presence of Parties and Conduct of Trials

 

210.        Every accused person shall, subject to the provisions of section 100 and of subsection (2) of section 223 of this Act, be present in court during the whole of his trial unless he misconducts himself by so interrupting the proceedings or otherwise as to render their continuance in his presence impracticable.

 

211.  (1)          Both the complainant and defendant shall be entitled to conduct their respective cases in person or by a legal practitioner.

 

 (2)          Where the defendant is in custody or on remand he shall be allowed the access of such legal practitioner at all reasonable times.

 

212.         (Deleted by L.N. 47 of 1955.)

 

213.  (1)          Where any person other than the Attorney-General of the State prosecutes in any criminal proceedings for an offence against a law of the State on behalf of the State or any public officer prosecutes in his official capacity in any such criminal proceedings such person or public officer shall of prosecute such case subject to such general or specific directions as may be given by the Attorney-General of the State.

 

 (2)          Where proceedings in respect of any offence against a law of the State within the criminal jurisdiction of a court are brought by a police officer in the exercise of his official duty and it is not provided by any written law that such proceedings shall only be brought by or in the name of some specified person, such proceedings may, subject to any special or general directions given by the Attorney-General of the State, be brought in the name of the public officer, police officer instituting the proceedings or making the arrest if any, or in the case of a member of the police force in the name of the Commissioner of Police of the State.

 

 (3)          The provisions of subsections (1) and (2) of this section, shall apply in relation to proceedings for an offence against a Federal law as they apply in relation to offences against a law of the State but as if references to the Attorney-General of the State were references to the Attorney-General of the Federation.

 

 (4)          The Attorney-General of the Federation may delegate to the Attorney-General of the State the powers conferred upon him by this section either generally or with respect to any offence or class of offences.

 

214.        Where an accused person appears before a court on a summons he may be required to enter the dock or to stand or sit adjacent thereto as may be ordered by the court.

 

Part 24

Recording of Plea

 

215.        The person to be tried upon any charge or information shall be placed before the court unfettered unless the court shall see cause otherwise to order, and the charge or information shall be read over and explained to him to the satisfaction of the court by the registrar or other officer of the court, and such person shall be called upon to plead instantly thereto, unless where the person is entitled to service of a copy of the information he objects to the want of such service and the court finds that he has not be been duly served therewith.

 

216.  (1)          Where an accused person is charged with having previously been convicted he shall not when called upon to previous lead to the other charges or counts be required to plead to such charges unless he pleads guilty to the rest of the charges or counts on which he is to be tried or is found guilty on one or more of such charges or counts.

 

 (2)          Where the trial is with assessors, a charge or count of a previous conviction shall not be read out or charged until a verdict has been returned or a decision given in respect of the charge relating to the subsequent offence and if such verdict or decision is one of not guilty, he shall not be called upon to plead in respect of the previous conviction.

 

 (3)          Where a person may properly be called upon to plead to a charge or count of a previous conviction, he shall be asked if he has been previously convicted as charged or not and if he admits that he has been so previously convicted the court may find him guilty and proceed to sentence him but if he denies that he has been previously so convicted or stands mute of malice or does not answer directly to such question the court shall inquire concerning such previous conviction.

 

 (4)           A previous conviction may be proved in the manner set out in Part II of the Evidence Act or otherwise to the satisfaction of the court.

 

217.         Every person by pleading generally the plea of not guilty shall without further form be deemed to have put himself upon his trial.

 

218.         If the accused pleads guilty to any offence with which he is charged the court shall record his plea as nearly as possible in the words used by him and if satisfied that he intended to admit the trust of all the essentials of the offence of which he has pleaded guilty, the court shall convict him of that offence and pass sentence upon or make an order against him unless there shall appear sufficient cause to the contrary.

 

219.         If the accused when called upon to plead to a charge or information for any offence can lawfully be convicted on such charge or information of some other offence not stated in such charge or information he may plead not guilty of the offence stated in the charge or information but guilty of such other offence and the court, if satisfied as in the last preceding section provided, shall record his admission as nearly as possible in the words used by him, and may in its discretion, convict the accused of the offence of which he has pleaded guilty and proceed as in the last preceding section provided, unless the prosecution states its desire to proceed with the trial of the accused for any offence stated in the charge or information.

 

220.         If the accused person when called upon to plead shall stand mute of will not or cannot answer directly malice or when called upon to plead to the charge the court shall enter or cause to be entered a plea of not guilty on behalf of such person and the plea so entered shall have the same force and effect as if such person had actually pleaded the same, or else the court shall thereupon proceed to try whether the accused person be of sound or unsound mind in accordance with the provisions of Part 25 of this Act and if he shall be found to be of sound mind shall proceed with his trial.

 

221.  (1)          Any accused person against whom a charge or information is filed may plead- 

 

(a)            that by virtue of section 181 of this Act he is not liable to be tried for the offence with which he is charged; or

 

(b)            that he has obtained a pardon for his offence.

 

 (2)           If either of such pleas is pleaded in any case and denied to be true in fact, the court shall try whether such plea is true in fact or not.

 

 (3)           If the court holds that the facts alleged by the accused do not prove the plea, or if it finds that it is false in fact, the accused shall be required to plead to the charge or information.

 

 (4)           Nothing in this section shall prevent a person from pleading that by virtue of some other provision of law he is not liable to be prosecuted or tried for any offence with which he is charged.

 

Part 25

Persons of Unsound Mind

 

222.         For the purposes of this Part of this Act, unless the context otherwise requires-

 

                "asylum" includes a lunatic asylum, a mental or other hospital, a prison and any other suitable place of safe custody for medical observation;

 

                "medical officer" means the medical officer attached to any asylum or any medical officer from whom a court requires an opinion.

 

223.  (1)          When a Judge holding a trial or a magistrate holding a trial or an inquiry has reason to suspect that the accused is of unsound mind and consequently incapable of making his defence the Judge, jury or magistrate, as the case may be, shall in the first instance investigate the fact of such unsoundness of mind.

 

 (2)         Such investigation may be held in the absence of the accused person if the court is satisfied that owing to the state of the accused's mind it would be in the interests of the safety of the accused or of other persons or in the interests of public decency that he should be absent, and the court may receive as evidence a certificate in writing signed by a medical officer to the effect that such accused person is in his opinion of unsound mind and incapable of making his defence or is a proper person to be detained for observation in an asylum, or the court may, if it sees fit, take oral evidence from a medical officer on the state of mind of such accused person.

 

 (3)           If the Judge, jury or magistrate, as the case may be, is not satisfied that such person is capable of making his defence, the court shall postpone the trial or inquiry and shall discharge the jury, if any, and shall remand such person for a period not exceeding one month to be detained for observation in an asylum.

 

 (4)           The medical officer shall keep such person under observation during the period of his remand and before the expiry of such period shall certify under his hand to the court his opinion as to the state of mind of such person, and if he is unable within the period to form any definite conclusions, shall so certify to the court and shall ask for a further remand. Such further remand may extend to a period of two months.

 

  (5)          Any court before which a person suspected to be of unsound mind is accused of any offence may, on the 19 application of a law officer, made at any stage of the proceedings prior to the trial, order that such person be sent to an asylum for observation; and the medical officer may, notwithstanding any other provision of law, detain any such accused person for such period, not exceeding one month, as may be necessary to enable him to form an opinion as to the state of mind of such person, and shall forward a copy of his opinion, in writing, to the court.

 

224.  (1)           If such medical officer shall certify that the accused person is of sound mind and capable of making his defence, the court shall, unless satisfied by the defence that the accused person is of unsound mind, proceed with the inquiry or trial, as the case may be.

 

 (2)           If such medical officer shall certify that such person is of unsound mind and incapable of making his defence, the judge or magistrate shall, if satisfied of the fact, find accordingly, and thereupon the inquiry or trial, as the case may be, shall be postponed; and if the judge or magistrate is satisfied that the accused person is of sound mind and capable of making his defence the court shall proceed with the trial or inquiry as the case may be.

 

 (3)           The trial of the issue as to whether or not the accused person is of unsound mind and incapable of making his defence shall, if the finding is that he is of sound mind and capable of making his defence, be deemed to be part of his trial before the court.

 

 (4)           The certificate of such medical officer shall be receivable as evidence under this section.

 

 (5)           If the accused person is certified to be of unsound mind and incapable of making his defence it shall not be necessary for him to be present in court during proceedings under this section.

 

225.  (1)   (a)           Whenever an accused person is found to be of unsound mind and incapable of making his defence, the court, the offence charged is bailable by the court, may, in its discretion, release him on sufficient security being given that he shall be properly taken care of and shall be prevented from doing injury to himself or to any other person, and for his appearance when required before the court or such officer as the court appoints in that behalf.

 

(b)            If such an accused person is before a magistrate charged with an offence which is bailable by a Judge but not by a magistrate or if the offence is bailable by a magistrate but the magistrate refuses to grant bail such magistrate shall inform the accused of his right to apply to a Judge for bail and report such fact to a Judge.

 

 (2)           If the offence charged is not bailable by the High Court or if a Judge has refused bail under paragraph (a) of subsection (1) of this section or after an application made under paragraph (b) thereof or if sufficient security is not given or if no application is made for bail the Judge shall report the case to the Governor who after consideration of the report may, in his discretion, order the accused to be confined in a lunatic asylum or other suitable place of safe custody and the Judge shall give effect to such order.

 

 (3)           Pending the order of the Governor the accused, may be committed to prison or other suitable place of custody for safe custody.

 

226.        Whenever an inquiry or trial is postponed under section 223 or 224 of this Act the court may at any time re-open the inquiry or commence the trial de novo and require the accused to appear or be brought before such court.

 

227.        When the accused has been released under section 225 of this Act, the court may at any time require the accused to appear or be brought before it and may again proceed under section 223 of this Act.

 

228.        When the accused appears to be of sound mind at the time of any preliminary inquiry before a magistrate and the magistrate is satisfied from the evidence given before him that there is reason to believe that the accused committed an act which if he had been of sound mind would have been an offence but is further satisfied from that evidence-

 

(a)           that by virtue of section 28 of the Criminal Code (which relates to insanity) the accused was not criminally responsible for that act; or

 

(b)           that the case falls under section 29(2) of the Criminal Code (which relates to intoxication as a defence) by virtue of paragraph (b) thereof (which relates to insanity resulting from intoxication),

 

                the magistrate shall proceed with the case and, if the accused ought otherwise to be committed to the High Court, shall send him for trial.

 

229.        Whenever any person is acquitted by virtue of the said section 28 or 29(2)(b) of the Criminal Code the verdict of the court before which the trial has been held or, in the case of a trial with a jury, of the jury shall state specifically whether he committed the act alleged or not.

 

230.  (1)          Whenever the finding states that the accused person committed the act alleged, the court before which the trial has been held shall, if such act would but for incapacity found have constituted an offence, order such person to be kept in safe custody in such place and manner as the court thinks fit and shall report the case for the order of the Governor.

 

 (2)           The Governor may order such person to be confined in a lunatic asylum, prison or other suitable place of safe custody during the pleasure of the Governor.

 

231.        When any person is confined under section 225 or 230 of this Act, the medical officer of the prison if such person is confined in a prison, or the medical officer attached to the asylum if he is confined in any asylum, shall keep him under observation in order to ascertain his state of mind and such medical officer shall make a special report for the information of the Governor as to the state of mind of such person at such time or times as the Governor shall require.

 

232.        When any person is, under the provisions of section 225 of this Act, confined in a prison or asylum and is certified by the medical officer thereof to be capable of making his defence, such person shall be taken before the court at such time as the court appoints, and the court shall proceed with 'f the trial or inquiry, as the case may be, and the aforesaid certificate shall be receivable as evidence.

 

233.         If the medical officer of a prison or the medical officer attached to an asylum in which a person is confined under section 225 or 230 of this Act shall certify that such person in his judgement may be discharged without danger of his doing injury to himself or to any other person, the Governor may thereupon order him to be discharged or to be detained in custody or in prison or to be transferred to an asylum if he has not already been sent to such an asylum, and in case he orders him to be transferred to such an asylum may require the Director of Medical Services of the State to appoint two medical officers to report on the state of mind of such person and upon any other facts the Governor may require and on receipt of such report the Governor may order his discharge or detention as he thinks fit.

 

234.        Where a person is confined in a prison or an asylum the Governor may direct his transfer from one prison or asylum to any other prison or asylum as often as may be necessary.

 

235.  (1)          Whenever any relative or friend of any person confined under section 225 or 230 of this Act desires that such person shall be delivered over to his care and custody, the Governor, upon the application of such relative or friend and on his giving security to the satisfaction of the Governor that the person delivered shall be properly taken care of and shall be prevented from doing injury to himself or to any other person, may in his discretion order such person to be delivered to such relative or friend:

 

                         Provided that if such person is confined under the provisions of section 225 of this Act, the Governor may further require such relative or friend to give security to the satisfaction of the Governor that if at any time it shall appear to the Governor that such person is capable of making his defence, such relative or friend shall produce such person for trial.

 

 (2)         Whenever such person is so delivered to the care and custody of any person it shall be upon condition that he shall be produced for the inspection of such officer and at such times as the Governor directs.

 

 (3)          Sections 231 and 232 of this Act shall, mutatis mutandis, apply to persons delivered to the care and custody of persons under this section.

 

235A.     Whenever it shall be necessary to remove a prisoner to a prison or asylum under the provisions of this Part of this Act, an order for such removal given under the provisions of this Part shall be sufficient authority for such removal and the detention of such prisoner notwithstanding that such prison or asylum is situate in another State of Nigeria.

 

Part 26

Remand

 

236.         If during any proceedings before a court it becomes necessary to adjourn the hearing of the same, the court may from time to time adjourn such proceedings after or without hearing the evidence, if it thinks fit, to a certain time and place, to be then appointed in the hearing of the parties or the legal practitioners representing them and if the defendant is in custody the court may admit him to bail, as in this Act provided, or by its warrant remand him to prison or other suitable place of security for any time not normally exceeding eight days but if necessary for such longer period as the court may consider advisable, and if such remand shall not be for longer than three clear days the court may order the person in whose custody the person remanded is, or any other fit officer or person, to continue to keep the accused in his custody, and to bring him again before the court at the time appointed for continuance of the case.

 

237.         During remand the court may nevertheless order the accused to be brought before it.

 

238.         If a court is satisfied that an accused person who has been remanded is, by reason of illness or accident, unable to appear personally before the court at such adjournment as in section 236 of this Act mentioned, such court may, in the absence of the accused person, order him to be further remanded for such time as may be deemed reasonable and cause him to be so informed in writing.

 

Place of Commitment

 

239.         All persons committed to prison under this Act shall be committed to a Government prison or other place of safe custody.

 

Part 27

Addresses

 

Opening of Case for the Prosecution

 

240.         After the accused person has pleaded not guilty to the charge or information the person appearing for the prosecution may open the case against the accused person and then adduce evidence in support of the charge.

 

Defence and Reply

 

241.         After the case for the prosecution is concluded the accused or the legal practitioner representing him, if any, shall be entitled to address the court at the commencement or conclusion of his case, as he thinks fit, and if no witnesses have been called for the defence, other than the accused himself or witnesses solely as to the character of the accused and no document is put in as evidence for the defence, the person appearing for the prosecution shall not be entitled to address the court a second time but if in opening the case for the defence the person appearing for the accused has in addressing the court introduced new matter without supporting it by evidence the court, in its discretion, may allow the person appearing for the prosecution to reply.

 

242.         If any witness, other than the accused himself or witnesses solely as to the character of the accused, is called or any document is put in as evidence for the defence, the person appearing for the accused shall be entitled after evidence on behalf of the accused has been adduced to address the court a second time on the whole case and the person appearing for the prosecution shall have a right of reply.

 

243.        The provisions of sections 241 and 242 of this Act shall not affect the right of reply by a law officer.

 

Part 27A

Procedure where Constitutional Questions are referred to Higher Court

 

243A.  (1)       Where any question as to the interpretation of the Constitution of the Federal Republic of Nigeria arises in the course of a trial and is referred to the Court of Appeal under the provisions of the said Constitution the court before which the question arose may in its discretion either-

 

(a)            adjourn the trial until such question shall have been considered and decided; or

 

(b)            conclude the trial and postpone the verdict until such time as the question has been considered and decided; or

 

(c)            conclude the trial and pass sentence and respite execution thereof until such time as the question has been considered and decided, and in any such case the court in its discretion shall commit the person accused or convicted to prison or admit him to bail in accordance with Part 14 of this Act.

 

 (2)           When the question has been decided the court shall-

 

(a)           continue the trial or discharge the accused; or (b) acquit or convict the accused; or

 

(c)           order the execution of the sentence, as the circumstances may require.

 

Part 28

Conclusion of Trial

 

244.         When the case for both sides is closed the court shall consider its verdict and for this purpose may adjourn the trial.

 

245.        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.

 

246.         If the court finds the accused not guilty the accused shall forthwith be discharged and an order of acquittal recorded.

 

247.         If the court convicts the accused person or if he pleads guilty, it shall be the duty of the registrar to ask the accused whether he has anything to say why sentence should not be passed on him according to law but the omission of the registrar so to ask him or his being so asked by the Judge or magistrate instead of the registrar shall have no effect on the validity of the proceedings.

 

248.         If the court finds the accused guilty the court shall either pass sentence on the accused or make an order or reserve judgment and adjourn the case to some future day.

 

249.  (1)          Where an accused person is found guilty of an offence the court may in passing sentence take into consideration any other charge then pending against the accused if the accused admits the other charge and desires that it be taken into consideration and if the prosecutor of the other charge consents.

 

 (2)           Where such a desire is expressed and consent given the court shall enter or cause an entry to that effect to be made on the record, and upon sentence being pronounced the accused shall not, subject to the provisions of sections 182 to 184 of this Act or unless the conviction which has been had is set aside, be liable to be charged or tried in respect of any such offence so taken into consideration.

 

250.        When a person is convicted of any offence the court may, instead of passing sentence, discharge the offender upon his entering into his own recognisance, with or without sureties, in such sum as the court may think fit, conditioned that he shall appear and receive judgment at some future sitting of the court or when called upon.

 

251.        Where a Judge or magistrate having tried a case is prevented by illness or other unavoidable cause from delivering his judgment or sentence, such judgment and the sentence, if the same has been reduced into writing and signed by the Judge or magistrate, may be delivered and pronounced in open court in the presence of the accused by any other Judge or magistrate.

 

Warrant of Commitment

 

252.         Where a sentence or conviction does not order the payment of money but orders that the offender be imprisoned the court shall issue a warrant of commitment accordingly.

 

253.         A warrant under the hand of the Judge or magistrate by whom any person shall have been sentenced or committed to prison for non-payment of a penalty or fine shall be full authority to the superintendent of any prison and to all other persons for carrying into effect the sentence described in such warrant not being a sentence of death.

 

Defect in Order or Warrant

 

254.         The court may at any time amend any defect in substance or in form in any order or warrant of commitment and no omission or error as to time and place and no defect in form in any order or warrant of commitment given under this Act, shall be held to render void or unlawful any act done or intended to be done by virtue of such order or warrant if it is therein mentioned, or may be inferred therefrom, that it is founded on a conviction or judgment sufficient to sustain the same.

 

Part 2

Costs, Compensation and Damages

 

255.  (1)          A court may order any person convicted before it of an offence to pay to the prosecutor in addition to any penalty imposed such reasonable costs as the court may seem fit.

 

 (2)           A court that acquits or discharges a person accused of an offence, if the prosecution of such offence was originally instituted on a summons or a warrant issued by a court on the complaint of a private prosecutor, may order such private prosecutor to pay to the accused such reasonable costs as the court may seem fit and the payment of such costs or any part thereof may be ordered by the court to be made out of any moneys taken from such person on his apprehension or may be recovered by distress.

 

 (3)           No order as to costs as aforesaid may be made if the court considers that the private prosecutor had reasonable grounds for making his complaint and the costs awarded shall not exceed one hundred naira in the case of an award by a Judge or fifty naira in the case of an award by a magistrate.

 

 (4)           Costs may be awarded under this section and may be in addition to any compensation awarded and accepted under section 256 of this Act.

 

 (5)           In this section, "private prosecutor" does not include any person prosecuting on behalf of the State, a public officer prosecuting in his official capacity or police officer.

 

256.         If in any case before a court one or more persons is or are accused of any offence and the court by whom the case is heard discharges or acquits any or all of the accused and the Judge or magistrate presiding over the court is of opinion that the accusation against any or all of them was false and either frivolous or vexatious, the Judge or magistrate may for reasons to be recorded, direct that compensation, to such an amount not exceeding twenty naira as he may determine, be paid to the accused or to each or any of them by the person upon whose complaint the accused was or were charged.

 

257.         Any sum so awarded as compensation shall be specified in the order of discharge or acquittal, as the case may be, and the court may order that on default of payment within such time as the court seems proper of any sum awarded for compensation, the person making default be imprisoned, with or without hard labour, for any term not exceeding the term prescribed in respect of a like sum in the scale of imprisonment set forth in section 390 of this Act.

 

258.         The provisions of sections 255 and 256 of this Act shall be subject to any express provision made in any written law relating to the procedure to be followed in the awarding of costs or compensation in respect of conditions specified in such written law.

 

259.         An appeal shall lie against any order awarding costs under section 255 of this Act, if made by a magistrate to the High Court and if made by a Judge to the Court of Appeal.

 

260.  (1)          The person to whom compensation is awarded may refuse to accept any such order for compensation but where any person received compensation for an injury under the award of the court as above mentioned, or where the offender, having been ordered to make compensation, suffers imprisonment for non-payment thereof, the receipt of such compensation or the undergoing of such imprisonment, as the case may be, shall be a bar to any action for the same injury.

 

 (2)           Before making an order under subsection (1) of this section, the court shall explain the full effect of that subsection to the person to whom compensation would be payable.

 

Damages in Cases of Dishonesty

 

261.        Where in a charge of stealing or receiving stolen property, the court shall be of opinion that the evidence is insufficient to support that charge, but that it establishes wrongful conversion or detention of property, the court may order that such property be restored, and may also award damages:

 

                Provided that the value of such property and the amount of damages awarded shall not together amount in value to twenty naira.

 

262.       The damages awarded under section 261 of this Act shall be recoverable in like manner as a penalty.

 

Part 30

Seizure, Restitution, Forfeiture and Disposition of

 

263.  (1)          During or at the conclusion of any trial or inquiry, the court may make such order as it thinks fit for the disposal whether by way of forfeiture, confiscation or otherwise of any property produced before it regarding which any offence appears to have been committed or which has been used for the commission of any offence.

 

 (2)           Where the court orders the forfeiture or confiscation of any property as provided in subsection (1) of this section but does not make an order for its destruction or for its delivery to any person the court may direct that the property shall be kept or sold and that the same or, if sold, the proceeds thereof, shall be held as it directs until some person establishes to the court's satisfaction a right thereto. If no person establishes such a right within six months from the date of forfeiture or confiscation such property or the proceeds thereof shall be paid into and form part of the general revenue.

 

 (3)           The power conferred by subsections (1) and (2) of this section upon the court shall include the power to make an order for the forfeiture or confiscation or for the destruction or for the delivery to any person of such property, but shall be exercised subject to any special provisions regarding forfeiture, confiscation, destruction, detention or delivery contained in the written law under which the conviction was had or in any other written law applicable to the case.

 

 (4)          When an order is made under this section in a case in which an appeal lies such order shall not, except when the property is livestock or is subject to speedy and natural decay, be carried out until the period allowed for presenting such appeal has passed or when such appeal is entered until the disposal of such appeal.

 

263A.      In this Part of this Act, the term "property" include, in the case of property regarding which an offence appears to have been committed, not only such property as has been originally in the possession or under the control of any party, but also any property into or for which the same has been converted or exchanged and anything acquired by such conversion or exchange, whether immediately or otherwise.

 

264.        The court may order the seizure of any instruments materials or things which there is reason to believe are provided or prepared, or being prepared, with a view to the commission of any offence triable by the court and may direct the same to be forfeited, confiscated, held or otherwise dealt with in the same manner as property under section 263 of this Act.

 

265.  (1)           On a conviction under section 51, 58 or 232 of the Criminal Code, the court may order the confiscation and destruction of all the copies of the thing in respect of which the conviction was had and which are in the custody of the court and also all those which remain in the possession or power of the person convicted.

 

 (2)           The court may in like manner on a conviction for an offence under section 243 of the Criminal Code order the food or drink in respect of which the conviction was had and also all other unfit or adulterated food or drink which remain in the possession of power of the person convicted to be destroyed.

 

266.        Where a magistrate is satisfied by information on oath that there is reasonable ground for believing that there is in the State in any building, ship, carriage, receptacle or place anything in respect of which an order may be made under section 264 or 265 of this Act, such magistrate may issue a search warrant to search for any such thing and if such thing be found the same shall be brought before any court and dealt with as the court may think proper.

 

267.  (1)          Whenever a person is convicted of an offence attended by criminal force and it appears to the court that by such force any person has been dispossessed of any immovable property the court may, if it thinks fit, order the possession of the same to be restored to such person.

 

 (2)           No such order shall prejudice any right or interest to or in such immovable property which any person, including the person convicted, may be able to establish in a civil suit.

 

268.        When any person is convicted of any offence which includes or amounts to stealing or receiving stolen property and it is proved that any other person has bought the stolen on property from him without knowing or having reason to believe that the same was stolen, and that any money has on the arrest of the convicted person been taken out of his possession, the court may, on the application of such purchaser and on the restitution of the stolen property to the person entitled to the possession thereof, order that out of such money a sum not exceeding the price paid by such purchaser shall be delivered to him.

 

269.        Where, upon the apprehension of a person charged with an offence, any property, other than that used in the commission of the offence, is taken from him, the court before which he is charged may order-

 

(a )           that the property or a part thereof be restored to the person who appears to the court to be entitled thereto, and, if he be the person charged, that it be restored either to him or to such other person as he may direct; or

 

(b)            that the property or a part thereof be applied to the payment of any costs or compensation directed to be paid by the person charged.

 

270.  (1)          Where any person is convicted of having stolen or having received stolen property, the court convicting him may order that such property or a part thereof be restored to the person who appears to it to be the owner thereof, either on payment or without payment by the owner to the person in whose possession such property or a part thereof then is, of any sum named in such order.

 

 (2)          This section shall not apply to-

 

(a)            any valuable security which has been bonafide paid or discharged by any person liable to pay or discharge the same; or

 

(b)            any negotiable instrument which shall have been bona fide received by transfer or delivery by any person for a just and valuable consideration without notice or without any reasonable cause to suspect that it had been stolen.

 

271.        Where any person is charged with an offence relating to counterfeit coin and in that person's possession, actual or constructive, was found any counterfeit coin or any matter or thing intended to be used for the purpose of making counterfeit coins then, whether such charge proceeds to conviction or not, such coin or matter or thing shall not be returned to the person charged or to the person from whom the same was taken but shall be destroyed in such manner as the court may order and failing any such order the same shall be delivered by the court to any administrative officer or to any officer of the office of the Accountant-General of the Federation, not below the grade of an assistant accountant, or to a police officer not below the rank of superior police officer, to be destroyed in such manner as such officer may see fit.

 

272.        Where any person comes into possession of any coin which he believes to be counterfeit or of any matter or thing which in his opinion is to be used for the purpose of making counterfeit coins he may hand such coin, matter or thing to any administrative officer, officer of the Central Bank of Nigeria designated by the Bank to receive the same, or to any police officer not below the rank of sub-inspector, and such administrative officer, officer of the Central Bank of Nigeria, or police officer-

 

(a)             if satisfied that such coin is not counterfeit, or that any of such articles are not intended to be used for the purpose of making counterfeit coins, shall return the coin or such articles, as the case may be, to the person purporting to be the owner thereof, if known; and

 

(b)            if satisfied that such coin is counterfeit or such matter or thing is intended to be used for the purpose of making counterfeit coins and if no charge is to be preferred against any person in connection with any such coin, matter or thing, may destroy or cause to be destroyed such coin, matter or thing in such manner and by such persons as may be approved by the Federal Minister of Finance and Economic Development:

 

                Provided that-

 

(i)             notice shall have been given to the person who appears to be the owner of such coin, matter or thing, if such person is known and can easily be found, that such coin, matter or thing will be destroyed at the end of a specified number of days unless such owner shows that the coin is not counterfeit or that the matter or thing is not intended to be used for the purpose of making counterfeit coin; and

 

(ii)            a reasonable time was allowed such person for providing such proof as aforesaid,

 

                and the person who alleges that he is the owner of or otherwise entitled to such coin, matter or thing shall have no claim against any such administrative officer, officer of the office of the Accountant-General of the Federation, police officer or the Government in respect of any such coin, matter or thing so destroyed.

 

272A.  (1)       Subject to the provisions of this section sections 271 and 272 of this Act shall apply in relation to notes purporting to be legal tender in Nigeria as those sections apply in relation to coins.

 

 (2)          No note, coin, matter or thing shall be destroyed by virtue of subsection (1) of this section unless either-

 

(a)            a court orders its destruction, in connection with a conviction for an offence, in pursuance of section 271 of this Act as applied by subsection (1) of this section; or

 

(b)            it appears to a magistrates' court having jurisdiction in the place where the note, coin, matter or thing is for the time being situated, on an application made in accordance with rules of court, that the existence of the note, coin, matter or thing involves a breach of the law and the court makes an order for its forfeiture and destruction accordingly; or

 

(c)            in the absence of any conviction for an offence in respect thereof and any pending prosecution for such an offence, and of any order or pending application for an order for its forfeiture, the note, coin, matter or thing-

 

(i)             has been voluntarily surrendered by the person having possession thereof to the proper official of the Central Bank of Nigeria or a superior police officer, or

 

(ii)            is discovered in a lodgment made with the said bank by a commercial bank.

 

 (3)           The West African Currency Notes Act is hereby repealed.

 

273.         Subject to the express provisions of any written law relating thereto, every article, not pecuniary, forfeited in respect of a summary conviction offence or the seizure, forfeiture or disposition of which may be enforced by the court may be sold or disposed of in such manner as the court may direct, and the proceeds of such sale shall be applied in the like manner as if the proceeds were a penalty imposed under the written law on which the proceeding for the forfeiture is founded.

 

Part 31

Summary Procedure in Perjury

 

274.  (1)          If it appears to a court that a person has been guilty of perjury in any proceeding before it, the court, subject to the provisions of subsection (2) of this section and in addition in the case of a magistrate to subsection (3) of this section, may-

 

(a)            commit him for trial upon information of perjury and bind any person by recognisance to give evidence at his trial; or

 

(b)            try him summarily as for a contempt of court and if he is found guilty commit him to prison for six months or fine him-

 

(i)             if in the High Court, a sum of one hundred naira, and

 

(ii)            if in the magistrate's court, a sum of fifty naira.

 

 (2)           Where a Judge or magistrate decides to try a person summarily under subsection (1) of this section, as for a contempt of court, such Judge or magistrate shall record in the evidence book the fact of such decision, shall specify the perjury alleged and shall direct the attention of the person to be charged to the inconsistencies upon which such charge is based and shall require him to give his explanation thereof and shall record such explanation in the book aforesaid.

 

        (3)    (a)            If a magistrate orders a person to be imprisoned or to pay a fine under subsection (1) of this section, he shall neither issue his warrant of commitment nor make an order for imprisonment for non-payment of the fine but shall either remand such person or release him on a recognisance with or without sureties to come up before the court when called upon and shall forthwith forward to the Chief Judge or such Judge as the Chief Judge may direct a certified copy of the proceedings and the Chief Judge or Judge as aforesaid may without hearing argument and in the absence of the person concerned set aside or confirm such order or reduce the sentence of imprisonment or the amount of the fine and shall inform the magistrate as soon as practicable thereafter of his decision.

 

(b)           If the Chief Judge or Judge does not wholly set aside the magistrate's order the magistrate shall forthwith issue his warrant of commitment or make the necessary order for payment of the fine in accordance with the terms of the Chief Judge or Judge's order.

 

 (4)           Any imprisonment or fine ordered or imposed under this section shall be a bar to any other proceedings for the same offence except where the order of a magistrate has been wholly set aside.

 

Chapter 3

 

Part 32

Trials Generally

 

275.  (1)           Trials shall be held- (a) in the High Court-

 

(i)             on information, after committal for trial by a magistrate under Part 36 of this Act such information being filed by a law officer or private prosecutor in accordance with the provisions of Part 37 of this Act, or

 

(ii)            on information, filed in the court after the accused has been summarily committed for trial by a Judge or magistrate under the provisions of Part 31 of this Act, or

 

(iii)           on information exhibited by the Attorney- General of the State under the provisions of section 72 of this Act, or

 

(iv)           summarily, in accordance with the provisions of Part 33, of this Act; and

 

(b)             in magistrates' courts summarily in accordance with the provisions of Part 33 of this Act.

 

 (2)           When trials are being held with the aid of assessors the provisions of Part 48 of this Act relating thereto shall apply.

 

276.        The Chief Judge may by rule direct that any offence or class of offence shall not be triable summarily by the High Court either throughout the whole of a State or in any specified part thereof.

 

Chapter 4

 

Part 33

Summary Trial

 

Application

 

277.         The provisions of this Part of this Act shall apply to offences triable summarily, that is to say-

 

(a)            to all trials in the High Court other than on information; and

 

(b)            to all trials in the High Court in respect of offences for which it is provided that a trial can be had in the High Court otherwise than on information and for which no special procedure is provided; and

 

(c)            to all trials in any magistrate's court to the extent of the jurisdiction of the magistrate adjudicating; and

 

(d)            for all offences declared by any written law to be triable summarily or on summary conviction or in a summary manner or by a magistrate.

 

278.        The provisions of this Act, other than those relating to the committal of an accused person to the High Court for trial on information therein, shall apply to trials under this Chapter save that where the provisions of this Chapter conflict with the provisions so applied the provisions of this Chapter shall prevail.

 

Hearing of Complaint

 

279.         On the day and at the place mentioned in the summons or on the day and at the place on and to which the defendant is brought before the court under a warrant, as the case may be, the case with respect to which the complaint has been made shall be called for hearing in the court.

 

280.        If, subject to the provisions of section 100 of this Act when the case is called the defendant appears voluntarily in obedience to the summons or is brought before the court under a warrant, and the complainant having, to the satisfaction of the court, had due notice of the time and place of hearing does not appear in person or in the manner authorised by any written law the court shall dismiss the complaint unless the court, having received a reasonable excuse for the non-appearance of the complainant or his representative or for other sufficient reason, think fit to adjourn the hearing of the same to some future day upon such terms as the court may think just.

 

281.  (1)           If when a summons case is called the defendant of does not appear, or pleads guilty under the provisions section 100 of this Act, and no sufficient excuse is offered for his absence then the court, if satisfied that the summons, if any, has been duly served may issue a warrant, called a bench warrant, for his arrest or if not satisfied that the summons has been duly served or if a warrant had been issued, in the first instance, for the apprehension of the defendant the court may adjourn the hearing of the case to some future day, in order that proper service may be effected or until the defendant be apprehended as the case may be.

 

 (2)          If the defendant is afterwards apprehended on a bench warrant or other warrant as aforesaid, he shall be brought before the magistrate who shall thereupon commit him by warrant to prison or to such other place of safe custody as he may think fit, and order him to be brought at a certain time and place before the court; and of such time and place the complainant shall, by direction of the magistrate, be served with due notice.

 

282.  (1)          If, when the case is called neither the complainant nor the defendant appears, the court shall make such order as the justice of the case requires.

 

 (2)           In such order, the court may include such direction as to the payment of costs as to the court shall seem fit, and the payment of such costs may be enforced in the manner and subject to the conditions set forth in Part 43 of this Act as if it were a fine.

 

283.         If, when the case is called both the complainant and the defendant appear, the court shall proceed to hear and determine the case.

 

284.         If a complainant at any time before a final order is made in any case under this Chapter, satisfies the court that there are sufficient grounds for permitting him to withdraw his complaint the court may permit him to withdraw the same and shall thereupon acquit the accused unless the court directs that the accused instead of being acquitted shall be discharged.

 

285.  (1)          At the commencement of the hearing, the court shall state or cause to be stated to the defendant the substance of the complaint, and shall ask him whether he is guilty or not guilty.

 

 (2)           If the defendant says that he is guilty and the court is satisfied that he intends to admit the offence and shows no cause or no sufficient cause why sentence should not be passed the court shall proceed to sentence.

 

 (3)           If the defendant says that he is not guilty the court shall direct that all witnesses shall leave the court and upon such direction, the provisions of section 186 of the Evidence Act shall apply:

 

                 Provided that the Judge or magistrate may in his discretion permit professional and technical witnesses to remain in court:

 

                 Provided further that failure to comply with the provisions of this subsection shall not invalidate the proceedings.

 

 (4)           The court shall then proceed to hear the complainant and such witnesses as he may call and such other evidence as he may adduce in support of his complaint, and also to hear the defendant and such witnesses as he may call and such other evidence as he may adduce in his defence and also, if the court thinks fit, to hear such witnesses as the complainant may call in reply if the defendant has called any witnesses or given any evidence.

 

 (5)           The complainant and the defendant may put questions to each witness called by the other side and where the defendant gives evidence he may be cross-examined.

 

 (6)            If the defendant is not represented by a legal practitioner the court shall at the close of the examination of each witness for the prosecution ask the defendant whether he wishes to put any questions to that witness, and shall record his answer on the minutes.