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Practice Guide: Arguing An Appeal At the Court of Appeal in Nigeria

fredericknkobowo

June 1, 2023

Introduction

This article will not and does not address the mechanics and intricacies of preparing briefs of argument which is actually very different from preparing a final written address. For an exposition on how to write briefs of argument, this piece on Nigerian guru website is most apposite. Also, a number of other reading resources are mentioned at the end of this piece.

The narration below is to act as a mere guide to Counsel and might need some adjustment to suit the peculiar situation of the specific appeal concerned.

Making Oral Submissions on the Day of Hearing of the Appeal

When representing the Appellant (Appellant’s Oral adoption of brief of argument)

My Lords, this is an appeal against the judgment of Okeke J. delivered on the 5th of July 2022. The judgment can be found at page 364 of the record of appeal. The Appellant’s notice of appeal was filed on the 8th of July 2022 and can be found at pages 366 to 367 of the record of appeal.

By leave of Court granted on the 5th of January 2023, the Appellant filed an amended notice of appeal. The amended notice of appeal was filed on the 12th of January 2023. The Appellant’s brief was filed on the 15th of January 2023 but deemed properly filed on the 17 of February 2023. We respectfully adopt same (Adumbrate if permitted by the Justices of the Court or if necessary, at all).

The Appellant also filed an appellant’s reply brief and it was deemed properly filed today. We also adopt same. In reliance on both briefs, we urge this Court to allow the appeal.

Respondent’s Oral Adoption of Brief of Argument

My Lords, we have a notice of preliminary objection filed on the 18th of February 2023. We argued the preliminary objection at pages 2 to 8 of the Respondent’s brief of argument.

Consequent upon our arguments in the preliminary objection, we urge this Court to dismiss the Appellant’s appeal in its entirety.

In response to the Appellant’s substantive appeal and issues, we canvassed arguments at pages 9 to 14 of our Respondent’s brief. We adopt our arguments contained in the said brief filed on the ___________. We urge this Court to dismiss the appeal of the Appellant and uphold the judgment of the lower Court.

Additional Resources

PRAGMATIC PRINCIPLES OF BRIEF WRITING IN APPELLATE COURTS IN NIGERIA

Introduction This article will not and does not address the mechanics and intricacies of preparing briefs of argument which is actually very different from preparing a final written address. For an exposition on how to write briefs of argument, this piece on Nigerian guru website is most apposite. Also, a number of other reading resources are mentioned at the end

Legal Articles

LIABILITY FOR PET OWNERSHIP IN NIGERIA

fredericknkobowo

May 31, 2023

Written by Timothy Oputa LLB (in view)

Introduction

In the past decades and still counting, dogs have been considered to be man’s best friend. Unsurprisingly, the popular simile; “as faithful as a dog” only reinforces this stance. For various reasons and purposes, people keep different kinds of animals as pets. More thrilling to note is the fact that wild animals are increasingly kept as “exotic pets”. Fairly recently, Insider[1] reports that about five thousand Tigers live in legal captivity—many as privately owned pets.[2] It is therefore no gainsaying that people keep both domestic and wild animals for various purposes. However, in Nigeria, keeping dogs as pets is more rampant across the nation.

 Worthy of note is that, like every other property,  the right to own and keep animals are not without some legal restrictions and regulations which every animal/pet owner should beware of. It follows, therefore, that an owner/ keeper of any animal as a pet, could in the appropriate instances, incur certain legal sanctions amongst other legal implications. Accordingly, this article examines the liability of an owner or keeper of pets in Nigeria.

Animals and Pets Defined

Under the Animal Disease Control Act,[1] animal is defined to mean “horse, mule, donkey, camel, cattle, cow, bull, bullock, heifer and calf, Buffalo, sheep, goat, swine, dog, cat, laboratory animal, wild animal and includes bird, rabbit and poultry (domestic fowl, turkey, duck, goose, parrot and any birds of the parrot family, pigeon, guinea fowl and ostrich). Essentially, in the eyes of the law, the term “animal” includes all living creatures not human.[2] On the other hand, a pet is any animal that is kept for pleasure rather than for commercial purposes. In this article, however, the emphasis would be on Dogs as they are the commonest pets across the country.

Relationship Between Dogs and Man

Psychologists believe that the human-canine relationship is a bidirectional attachment bond which resembles that of the typical human caretaker/infant relationship, and shows all of the usual hallmarks of a typical bond.[1] In addition, the fact that dogs are obedient, playful, loyal, intelligent, and easily trained make them the most popular among pet owners, enjoying up to 33% ownership.[2]

As a general rule, the keeper of an animal is liable for any damage done by it.[3]  The reason for this being that the animal is considered to be the property of its owner, hence, the law holds the owner/keeper of the animal strictly liable for injuries caused by their animals. Liability for animals could be further classified into two broad categories viz:

  1. Cattle trespass; and
  2. Scienter action (liability for dangerous animals)

The examination of the former classification (cattle trespass) falls outside the scope of this article, hence we will consider extensively the latter classification—scienter action.

Scienter Action

Scienter action simply means action when there is knowledge. It is a an area tort law that deals with liability for damages done by animals to humans. Under this head, liability is predicated on whether the owner/keeper of an animal had prior knowledge of the animal’s conduct. Again, under scienter action, two further classifications of animals arise, namely:

  1. Animal Ferae Naturae (ferocious animals); and
  2. Animal Mensutae Naturae (domestic animals).

The term “ferae Naturae” is a Latin expression which means “wild animal”, it refers essentially to animals that are by their nature ferocious, and by law are not designated domestic animals. Examples of animals under this classification include; tigers, snakes, lions etc. As was established in Candler v Smith,[1] negligence by the owner is presumed when farae nature causes injury to someone. For this class of animals, knowledge of the fact that the animal has an aggressive tendency is imputed to the owner.[2]

The law relating to this is well established and trite by virtue of the extension of the rule in Ryland v Fletcher,[3] and the application of the same to animal liability. Accordingly, the position of the law is that the keeping of animal ferae nature  attracts strict liability to the owner/keeper where such animal causes damage to other animals or human beings. Essentially, the rule in Rylamds v Fletcher is to the effect that a person whom for his own purposes brings on his land a non-natural user[4] likely to do mischief if it escapes, must keep it at his peril, as he would be liable for all the damage which is the natural consequence of its escape. In applying this rule to animal liability, a non-natural user of land is deemed to be the animal/pet brought in by the owner, hence, the pet owner is strictly liable for damages caused by his pet where it escapes and causes damage.

The reason for this stance is not far-fetched seeing that such kinds of animals are intrinsically dangerous, notwithstanding the fact that some of them may be tamed. This is good law. The case of Behrens v Bertram Mills Circus,[5] is apposite to illustrate the point. In this case, the owner of a tame elephant was held liable where the elephant without any aggression knocked down the plaintiff even though the elephant had never hurt anyone in the past.

The rules are slightly different with respect to the second class of animals—mensutae naturae (meaning “tame by nature”), this is because they are naturally innocuous, docile and normally tame. They are domestic animals and do not generally have a savage disposition or the propensity to cause harm, but may still cause harm or attack human beings. Dogs squarely fall into this category. Accordingly, the position here is that for the owner or keeper of animal mensutae naturae e.g; dogs, it must be proved that:

  1.  the said animal caused the damage;
  2. the animal had a savage or vicious tendency; and
  3. the owner was aware of this tendency.

In the case of Daryani v Njoku,[6] the defendant’s dog attacked and bit the plaintiff. It was also established in evidence that the same dog on a previous occasion bit a housemaid and the incident was reported to the owners. The owner of the dog was held liable for the damage. Also, in the case of Hudson v Robert,[7] the plaintiff who wore a red handkerchief on his neck was gored by the defendant’s bull.  It was established that the bull was irritated by the red handkerchief and that the defendant was aware of this vicious tendency, hence they were held liable.

 Conversely, where there is no evidence of vicious tendency or previous attack of the animal, the owners would not be held liable.[8] Furthermore, it should be noted that the owners of this class of animal will not be liable where the animal was acting according to its instincts.[9] Lastly, it should be noted that there is no legal restriction on the amount of animals[10] an individual may own, in so far as he keeps the animals within the confines permitted by law.

Regulation of Animal Ownership in Nigeria

Certain laws regulate the ownership and keeping of animals in Nigeria.  These laws include:

  1. The Dogs Act of 1958,
  2. Dogs Laws of various states,
  3. Animal Disease Control Act of 1988; and
  4. The Criminal Code of 1990.
  5. The Constitution of the Federal Republic of Nigeria 1999.

By virtue of section 5 of the Dogs Act, owners of dogs may release the dogs to run at large provided the dog is tied on a leash by the owner and is constrained from biting or licking any human being. Also, pursuant to section 3 of the Dogs Law of Lagos State, any person who keeps a dog over the age of six months without a license commits an offence. Furthermore, under section 450 of the Criminal Code, any person who wilfully and unlawfully kills, wounds, or maims any animal capable of being stolen is guilty of an offence. Lastly, under section 44 of the Constitution[1] the right to own property, which in terms of the present disquisition refers to animals/pets, is guaranteed and protected.

Conclusion

Like in other jurisdictions, ownership of pets is permissible, however, the same must be within the confines permitted by law. Accordingly, consequent upon the freedom to own pets or keep animals are certain requirements and duties imposed by law on the owners/keepers of pets and animals of any kind. To that extent, the various laws regulating the ownership of pets and other animals have been duly espoused in the discussions above. In sum, as a general rule, the owner or keeper of an animal is prima facie liable for damage caused by the animal. Like every general rule, this rule also admits of certain exceptions which has been elaborately espoused on above.

[1] CFRN, 1999 as amended.

[1] 179 S.E.395, 50 Ga.App.667.

[2] Daryani v Njoku (1965) 2 All NLR 53 at 127.

[3] (1868) LR 3 HL 330.

[4] A non-natural user is anything not originally or by nature on the land.

[5] (1957) 1 All ER 583.

[6] (1965) 2 All NLR 53

[7] 155 ER. 724.

[8] Glansville v Sutton (1928) 1 KB 571.

[9] See Burckle v Homes (1926) 2 KB 125, where a cat killed 14 birds and the owner was not held liable because the cat acted according to its natural instincts.

[10] Whether ferae naturae or mensutae naturae.

[1] Supra.

[2] Arslan Hassan, ‘Dogs in Nigeria: What You Need to Know ‘, [2022], Guest Post, <https://www.petlovers.com.ng/dogs-in-nigeria-what-you-need-to-know%EF%BF%BC/>, Accessed 9th of March 2023.

[3] North v Wood (1914) 1 KB 629.

[1] ADC 1988, s24.

[2] Bernardine v City of New York 294 N.Y. 361 (N.Y.1943).

[1] A global news publication.

[2] Kristine Solomon,’14 Animals that are surprisingly Legal to Own in America as Pets ‘ [2019], Business Insider,  <https://www.businessinsider.com/animals-legal-pets-us-surprising-2019-10?r=US&IR=T#the-majority-of-tigers-live-as-pets-not-in-the-wild-2 > Accessed 8th of March 2023.

Written by Timothy Oputa LLB (in view) Introduction In the past decades and still counting, dogs have been considered to be man’s best friend. Unsurprisingly, the popular simile; “as faithful as a dog” only reinforces this stance. For various reasons and purposes, people keep different kinds of animals as pets. More thrilling to note is the fact that wild animals

Law Library Law Report Legal Articles

SUPREME COURT HAS OVERRULED THE DECISION IN ODEY V ALAGA

fredericknkobowo

March 22, 2023

Written by Carrington Omokaro, Esq

The Supreme Court in the case of Odey v. Alaga (2021) 13 NWLR (Part 1792) 1 delivered on 25th of February, 2021 in a split decision of 4-3 decided that a Notice of Appeal must be served on the respondent personally and that service of a Notice of Appeal on the Respondent’s counsel instead of the Respondent personally, renders the appeal incompetent.

However in the recent decision of Amaechi v. Gov. Of Rivers State (2022) 17 NWLR (Part 1858) 1 delivered on 27th May, 2022, the court stated that a Notice of Appeal filed and served on the Respondent’s counsel is proper service as far as the court is satisfied that the Notice of Appeal has been communicated to the Respondent.

Why Odey v. Alaga wasn’t good precedence
The Respondent who filed the objection had already filed its Respondent’s brief to the Appellant’s brief and there was also a reply brief by the Appellant.

It was also on record that there was an application by the Appellant to regularise the defect. Hence the principle in priority of motions as laid in NALSA & TEAMS ASSOCIATE v. NNPC (1991) (PT 212) and AG FED v. AIC Ltd (1995) (PT 378) ought to have been followed.

Odey v. Alaga (2021) Part 1792 as well as JEGEDE v. INEC (2021) (PART 1797) – (Had the Majority in Jegede’s case considered the provisions of S. 318 perhaps the decision who have been different), are the specific instances where I with due respect agree with the reasoning of the Minority decision over the Majority.

Written by Carrington Omokaro, Esq The Supreme Court in the case of Odey v. Alaga (2021) 13 NWLR (Part 1792) 1 delivered on 25th of February, 2021 in a split decision of 4-3 decided that a Notice of Appeal must be served on the respondent personally and that service of a Notice of Appeal on the Respondent’s counsel instead of

Legal Articles Law Central Law Central

Nigerian Cases on Jurisdiction.

fredericknkobowo

March 9, 2023

What is Jurisdiction?

UKUT & ORS v. APC & ORS (2019) LPELR-47203(CA)

“By way of prefatory remarks, jurisdiction, a mantra in adjudication, connotes the authority/power of a Court to determine a dispute submitted to it by contending parties in any proceeding, see Ajomole v. Yaduat (No. 1) (1991) 5 SCNJ 172; Mobil Pro. Co. Unltd. v. LASEPA (2002) 18 NWLR (Pt.798) 1; Ndaeyo v. Ogunnaya (1977) 1 IMSLR 300; Ebhodaghe v. Okoye (2004) 18 NWLR (Pt. 905) 472; Garba v. Mohammed (2016) 16 NWLR (Pt. 1537) 144; A.-G., Kwara State v. Adeyemo (2017)1 NWLR (Pt. 1546) 210; Isah v. INEC (2016) 18 NWLR (Pt. 1544) 175; Angadi v. PDP (2018) 15 NWLR (Pt. 1641) 1.” Per OBANDE FESTUS OGBUINYA, JCA (Pp 10 – 11 Paras D – A)

ZURU v. FAKAI (2021) LPELR-55015(CA)

“A question that must be answered is: what is jurisdiction in law and what are its ingredients? In the case of SHITTA-BEY VS. ATTORNEY-GENERAL, FEDERATION (1998) 10 NWLR (PT. 570) PAGE 392, jurisdiction was defined as follows: “it is the authority a Court of law has to entertain and decide a matter brought before it by litigants. It embraces every kind of judicial action be it criminal, civil and what nots. It is the power of Court to decide a matter in controversy and it presupposes the existence of a duly constituted Court with control over the subject matter and the parties.” ?While the ingredients of jurisdiction exist where: (a) The subject matter of the case is within the jurisdiction of the Court and there is no feature in the case which prevents the Court from exercising its jurisdiction. (b) The Court is properly constituted as regards members and their requisite qualification and no member is disqualified for one reason or the other; and (c) The case is initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. See the cases of MADUKOLU VS. NKEMDILIM (1962) 2 SCNLR 341; SKENCONSULT (NIG) LTD VS. UKEY (1981) 1 SC 6; ISHOLA VS. AJIBOYE (1994) 6 NWLR (PT. 352) PAGE 506; WESTERN STEEL WORKS LTD VS. IRON AND STEEL WORKERS UNION (1986) 3 NWLR (PT. 30) PAGE 617 and ODOFIN VS. AGU (1992) 3 NWLR (PT. 229) PAGE 350.” Per MOHAMMED BABA IDRIS, JCA (Pp 8 – 9 Paras B – C)

EGBELE v. POSTMASTER GENERAL (2010) LPELR-4362(CA)

“What determines jurisdiction is simply the enabling law on jurisdiction and the reliefs sought for in the suit. If the relief is within the Court’s jurisdiction and the enabling law confers on the Court jurisdiction on the matter the Court must assume jurisdiction, otherwise it lacks jurisdiction in the matter.” Per HUSSEIN MUKHTAR, JCA (Pp 13 – 13 Paras E – F)

Why is Jurisdiction Important and the effect of the Lack of Jurisdiction on proceedings before the Court?

NUNGWA v. BOKO & ORS (2019) LPELR-48194(CA)

“…the issue of jurisdiction is fundamental as it touches on the competence of the Court to entertain any process, be it an application or an appeal, filed before the Court, Jurisdiction is a threshold issue and the livewire for any determination. It is the power of the Court to hear and determine the subject matter in controversy between the parties. see Ogumka V CAC (2010) LPELR-4891(CA). The jurisdiction of a Court means the limits which are imposed upon the power of a Court to hear and determine issues between persons seeking to avail themselves of its process by reference to the following factors: (1) The subject matter of the issue; or (2) The persons between whom the issue is joined; or (3) The nature of relief sought; or (4) A combination of these factors. Thus, jurisdiction embraces the settled practice of the Court as to the way in which it will exercise its power to hear and determine issues which fall within its purview; or as to the circumstances in which it will grant a particular kind of relief which it has power to grant; including its settled practice to refuse to exercise such powers or to grant such relief in particular circumstances. See Orubu V NEC (1988) NEC (12 SC (Pt. III) 1; Aladetan V Wole (2010) LPELR-3699(CA) 14.” Per JUMMAI HANNATU SANKEY, JCA (Pp 27 – 28 Paras B – B)

REGISTERED TRUSTEES OF IMPORTERS ASSOCIATION OF NIGERIA & ORS v. OKEREKE (2019) LPELR-46967(CA)

“The importance of jurisdiction in every case before the Court cannot be over-emphasized. The importance of jurisdiction is the reason why it can be raised in Court at any stage of the case. See Petrojessica Ent. Ltd & Anor v. Leventis Technical Co. Ltd (1992): 5 NWLR (Pt. 244) 675; Adegoke v. Adibi (1992) 5 NWLR (Pt. 242) 410; Utih & Ors v. Onoyivwe & Ors (1991) 1 NWLR (Pt. 166) 166. The issue of jurisdiction is so important that where in fact the Court has no jurisdiction with respect to a matter before it, the active support or ignorance or silence of the parties to that fact cannot vest the Court with the requisite jurisdiction which is the essential pre-condition to the exercise of judicial powers. See Ijebu-Ode LG. v. Adedeji (1991) 1 NWLR (Pt. 166) 136.” Per STEPHEN JONAH ADAH, JCA (Pp 9 – 9 Paras B – E).

MOHAMMED & ORS v. ABDULLAHI (2022) LPELR-58052(CA)

“a Court has no powers to adjudicate over a matter if it lacks jurisdiction and if the Court decides to go ahead, all the proceedings and decision of the Court will amount to a nullity. See Hameed Toriola & Anor vs Mrs. Olushola Williams (1982) 7 S.C. 27. In Buremoh vs Akande (2017) LPELR-41565 (SC), the apex Court held: “…The settled position of the law is that the issue of Jurisdiction, being so fundamental to the Court’s power to adjudicate, can be raised at any stage of the proceedings, even before this Court. It can be raised orally. It can also be raised suo motu by the Court. This is because, no matter how well the proceedings are conducted or how erudite the judgment arising therefrom, it all amounts to a nullity where the Court lacks jurisdiction. See Madukolu Vs Nkemdilim (1962) 1 ALL NLR 587; Nnakwe Vs The State (2013) 7 SCNJ 179; Oloriegbe Vs Omotosho (1993) 1 SCNJ 30.” This Court and the apex Court in a number of cases stated the importance of jurisdiction in a case. On the importance of jurisdiction, this Court has had course to make a pronouncement in the case Aladesanmi & Ors vs Holden properties (Nig) Ltd (2018) LPELR-49357 in these words: “The subject of jurisdiction is a serious one and indeed it is the life wire of any proceeding. A Court that adjudicates on a matter it has no jurisdiction would have wasted its time, that of the litigants, the Court staff and indeed material, human and financial resources. This is because it is trite that any decision reached by a Court over a matter it has no jurisdiction will amount to nullity. It is as wasteful as a journey without destination or a journey into an endless or bottomless pit. See CHIEF OF AIR STAFF & ORS VS. IYEN (2005) 1 SC (PT II) 123, UYAEMENAH NWORA & ORS VS NWEKE NWABUEZE NSCQR 46 2011 PAGE 409. This is a journey of a beginning without an ending. No Court and indeed no human being should want to venture into such a journey which is not only tasking but fruitless. The question is, did the lower Court engage in such a journey? In answering that question, it will not be out of place to know what jurisdiction means and what confers jurisdiction on a Court. Jurisdiction is the power of a Court to adjudicate on a matter. This is what gives the Court power to welcome a litigant. This is the strength that a Court has to deal with matters brought before it. This is conferred mainly by statute. The matters that a Court can handle are what the jurisdiction of the Court is all about. Clearly, in Nigeria it is not every Court that has jurisdiction to handle all cases, the statute can confer jurisdiction to handle all cases. The statute can confer jurisdiction on a Court. See A.G. LAGOS VS. DOSUNMU (1989) 6 SC (PT 2) 1.” Jurisdiction is as important to a Court, just as water is important to fish and breath is to human beings. Jurisdiction is like water to fish and breath to a human being. Without water, fish cannot survive just as human beings cannot survive without breath. The power of a Court without jurisdiction is like a toothless bulldog or a king without a kingdom. It is jurisdiction that activates the judicial powers of a Court.” Per EBIOWEI TOBI, JCA (Pp 27 – 29 Paras A – F).

ADETAYO & ORS v. ADEMOLA & ORS (2010) LPELR-155(SC)

“Therefore, when a Court lacks jurisdiction, it lacks the necessary competence to try the case. This is because, a defect in competence, is fatal as the proceedings, are null and void ab initio. See the case of Ogigie & 3 ors. v. Obivan (1997) 10 SCNJ 1 citing the cases of Alhaji Tukur v. Government of Gongola State (1989) 4 NWLR (Pt.1l7) 513 ; (1989) 9 SCNJ. 1: Salati v. Shehu (1986) 1 NWLR (Pt.15) 198; Alade v. Alemuloke & 2 ors.(1988) 1 NWLR (Pt.69) 201 @ 204 ; (1988) 2 SCNJ 1 ; Chief Oloba v. Akereja (1988) NWLR (Pt.84) 508 @ 510; (1988) 7 SCNJ 56.” Per IKECHI FRANCIS OGBUAGU, JSC (Pp 28 – 28 Paras A – C)

APC & ORS v. ENUGU STATE INDEPENDENT ELECTORAL COMMISSION & ORS (2021) LPELR-55337(SC)

“Where the Court lacks jurisdiction to entertain a cause or matter, any step taken in the proceedings amounts to an exercise in futility. It is null and void. See Madukolu Vs Nkemdilim (1962) 1 ALL NLR 387 @ 594, Utih vs Onoyivwe (supra): IDISI vs Ecodril Nig. Ltd. & Ors (2016) ALL FWLR (Pt. 850) 1016: Gwede vs INEC & Ors. (2014) 18 NWLR (Pt. 1438) 56.” Per KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC (Pp 34 – 34 Paras B – D)

Conditions that Must be met before a Court has jurisdiction.

ADETOYINBO & ORS v. PRESIDENT & OTHER MEMBERS OF WAKAJAYE GRADE C CUSTOMARY COURT, WAKAJAYE, IBADAN & ORS (2015) LPELR-41714(CA)

“The issue of jurisdiction is very important in adjudication and the term has been variously described by jurists as the life blood of any adjudication. See Katto v. CBN (1991) 11-12 SC 176. The general principle of law is that before a Court can be said to be competent or claim to have jurisdiction in respect of any matter – (a) It must be properly constituted with respect to the number and qualification of its members (b) The subject matter of the action must be within its jurisdiction. (c) The action is initiated by due process of law and (d) Any condition preceded to the exercise of its jurisdiction must have been fulfilled. (The underline is mine) See the cases of Madukolu v. Nkemdilim (1962) 1 ALL NLR 587, Dangana & Anor. v. Usman &amp; 4 Ors (2012) 25 C (pt. 111) 103 and N.U.R.T.W. &amp; Anor. v. R.T.E.A.N. &amp; 5 Ors (2012) 1 SC (pt.11) 119.” Per MUDASHIRU NASIRU ONIYANGI, JCA (Pp 20 – 21 Paras D – B)

NNAKWE v. STATE (2013) LPELR-20941(SC)

“The competence of a Court to adjudicate on any matter had long been laid to rest in the locus classicus case of Madukolu V. Nkemdilim supra wherein Bairamian, F.J made the following observations at page 348 and said:- “Before discussing those portions of the record, I shall make some observations on jurisdiction and the competence of a Court. Put briefly, a Court is competent when- (1) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and (2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and (3) the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication.” For purpose of conferring jurisdiction therefore, the Court must be absolutely certain and satisfied that the offence or crime is directly donated by the jurisdiction conferred in the enabling law; where the offence or crime is however outside the statutory provision, the Court cannot exercise jurisdiction as it lacks the authority to do so. See Onwudiwe V. F.R.N. (2006) 10 NWLR (Pt. 988) 382 at 425.” Per CLARA BATA OGUNBIYI, JSC (Pp 55 – 56 Paras B – C).

Whether Parties can by Consent Waive Jurisdiction?

OYENIRAN & ORS v. EGBETOLA & ANOR (1997) LPELR-2876(SC)

“Indeed, it is trite that parties cannot by consent or waiver confer jurisdiction on the Court where there is no jurisdiction in a Court to try the case.” Per SYLVESTER UMARU ONU, JSC (Pp 33 – 34 Paras G – A)

Jurisdiction of the Court of Appeal

The Jurisdiction of the Court of Appeal to Hear an Appeal is linked to/Depends on the Jurisdiction of the Trial Court to entertain the suit leading to the Appeal

Legal Issue: Whether an appellate court can exercise jurisdiction over a matter where the lower Court(s) lacks jurisdiction?

Suggested search query on law pavilion primsol: Whether an appellate court can exercise jurisdiction over a matter where the lower Court(s) lacks jurisdiction.

Principle: Where it is shown that the lower Court lacks the jurisdiction to adjudicate on a cause or matter an Appellate Court will also lack jurisdiction to determine the merit of an appeal emanating therefrom.

NNPC & ANOR v. EFEBO (2019) LPELR-47904(CA), SARANYI v. JIBRILLA (2019) LPELR-48781(CA), WARD & ORS v. SUFFOLK PETROLEUM SERVICES LTD & ANOR (2017) LPELR-45204(CA), ODEY v. ALAGA & ORS (2021) LPELR-53408(SC), APGA V. ANYANWU (2014) 7 NWLR (PT 1407) 541 at 567-568, ANYANWU v. OGUNEWE & ORS (2014) LPELR-22184(SC), MUSICIAL COPYRIGHT SOCIETY OF (NIG) LTD v. NCC (2016) LPELR-41009(CA),

UMEZ ENGINEERING CONSTRUCTION CO. LTD & ANOR v. ALOZIE (2018) LPELR-44656(CA), CHUKWURAH v. APC & ORS (2023) LPELR-59735(CA)

SARANYI v. JIBRILLA  (2019) LPELR-48781(CA) 

“An appellate Court cannot exercise jurisdiction in a matter once the lower Court or the Court below is without jurisdiction. See Ehuwa vs. Ondo State (2006) 12 SCNJ 259 at 269.” Per JAMES SHEHU ABIRIYI, JCA (Pp 11 – 11 Paras D – E)

WARD & ORS v. SUFFOLK PETROLEUM SERVICES LTD & ANOR (2017) LPELR-45204(CA) 

“…Since the lower Court was not clothed with the jurisdiction to try the matter ab initio, this Court is stripped of the vires to hear the appeal. SeeIkechukwu v. Nwoye (2015) 3 NWLR (Pt. 1446) 367; Yar’adua v. Yandoma (2015) 4 NWLR (Pt. 1448) 123; Lafferi v. NAL Merchant Bank (2015) 14 NWLR (Pt. 1478) 64; Egbuchu v. CMB Plc. (2016)) 8 NWLR (Pt. 1513) 192. The reason is not far-fetched. In the view of the law, the jurisdiction of a higher/appellate Court in a matter is tied to that of a lower Court where an appeal emanates. In effect, the want of jurisdiction of the lower Court over the suit contaminates the jurisdiction of this Court to hear the appeal. In other words, the appeal, as constituted, is infested with incompetence.” Per OBANDE FESTUS OGBUINYA, JCA (Pp 22 – 23 Paras C – A)

SPDC v. GOVT OF BAYELSA STATE & ANOR (2017) LPELR-45224(CA) 

“For the sake of clarity and completeness, I must place on record, pronto, that since the lower Court was not clothed with the jurisdiction to try the matter ab initio, this Court is stripped of the vires to hear the appeal, see Ikechukwu v. Nwoye (2015) 3 NWLR (Pt. 1440) 367; Yar’adua v. Yandoma (2015) 4 NWLR (Pt. 1448) 123; Lafferi v. NAL Merchant Bank (2015) 14 NWLR (Pt. 1478) 64; Egbuchu v. CMB Plc. (2016) 8 NWLR (Pt. 1513) 192. The reason is obvious. In the view of the law, the jurisdiction of a higher/appellate Court in a matter is tied to that of a lower Court where an appeal emanates. In effect, the want of jurisdiction of the lower Court over the suit contaminates the jurisdiction of this Court to hear the appeal. In other words, the appeal, as constituted, is plagued with incompetence. The gross and dismal effect is that the entire proceedings and the decision of the lower Court, delivered on 12th April, 2016, were/are trapped in the web of nullity. In the result, the decision of the lower Court is worthless in the hands of the respondents. Since it was mired in a nullity, it was/is barren to give birth to a viable appeal. In sum both the suit and the appeal are rendered incompetent.” Per OBANDE FESTUS OGBUINYA, JCA (Pp 29 – 30 Paras D – D)

NNAJI & ORS v. C.O.P KADUNA STATE & ORS (2021) LPELR-55797(CA) 

“Suffice, it to say that this Court having found that the lower Court lacked the jurisdiction to have entertained the Appellants’ incompetent action, equally lacks the jurisdiction to consider the merits of the decision of the lower Court in the case. In this regard, see the case of EHUWA V. ONDO STATE INDEPENDENT ELECTORAL COMMISSION [2007] All FWLR (Pt. 351) 1415 wherein it was held to the effect that once an appellate Court determines that there was no jurisdiction in the lower Court to exercise in respect of a matter, the decision of the lower Court must be set aside leaving the appellate Court with no jurisdiction to consider talk less of making any pronouncement in relation to the null and void proceeding and order or judgment of the lower Court.” Per FATIMA OMORO AKINBAMI, JCA (Pp 10 – 11 Paras C – A)

SULEJA v. ABUBAKAR & ORS (2019) LPELR-47899(CA) 

“The trite law is that where the Court of trial lacks the jurisdiction on a cause or matter the Appellate Court is also in that circumstance devoid of jurisdiction to decide the appeal emanating from the null proceedings as in this case. The case is liable to be struck out for being incompetent and for lack of jurisdiction on the part of the trial Court. In other words, this Court cannot exercise appellate jurisdiction on an appeal where the lower Court lacks the jurisdiction to deal with the subject matter of an action. See ECOBANK NIGERIA LTD V ANCHORAGE LEISURES LTD & ORS (2018) 18 NWLR (PART 1650) 117 AT 135 C – G per PETER-ODILI, JSC who said:- “There was no appeal to the Court of Appeal on the stand of the trial Court’s striking out the contempt proceedings for lack of jurisdiction and so the appellant cannot bring the matter up at this stage at the Supreme Court. The implication is that the striking out of the contempt proceedings on a want of jurisdiction by the trial Court and the matter not appealed against, there is no vices on which it can be reopened at that stage since the Court of Appeal would lack jurisdiction and the same virus visiting this Court on that same issue. The two Courts below lacking jurisdiction, this Court automatically has been caged and is helpless as there is no basis on which it can assume jurisdiction to entertain the merits of the contempt proceeding which the two Courts below did have jurisdiction to entertain. This calls up the reminder to what is now trite in law which is that an appeal is a continuation of hearing and not on its own to be activated without a linkage to the earlier trial or appeal from a lower Court. See Ajide v. Kelani (1985) 3 NWLR (Pt.12) 248 at 269; Adegoke Motors Ltd v. Adesanya (1989) 3 NWLR (Pt.109) 250 at 266. The case of Akinbobola v. Plisson Fisko (1991) 1 NWLR (Pt.167) 270 at 285 paras. E-G would highlight what I have been trying to communicate and there this Court had stated in very clear terms the true position of things thus:- “The Court below being an appellate Court, cannot exercise jurisdiction in a matter where the trial Judge is without jurisdiction. It only exercises its appellate jurisdiction to correct the errors of the learned Judge. Hence it will have no jurisdiction to make consequential orders after it has held that the learned Judge had none. Accordingly having held that the learned trial Judge had no jurisdiction to make consequential orders the Court below could not have made because it can only exercise jurisdiction on appeal as if the proceedings had been instituted in the Court of Appeal as Court of first instance.” Per PETER OLABISI IGE , JCA (Pp 47 – 49 Paras B – D)

What is Jurisdiction? UKUT & ORS v. APC & ORS (2019) LPELR-47203(CA) “By way of prefatory remarks, jurisdiction, a mantra in adjudication, connotes the authority/power of a Court to determine a dispute submitted to it by contending parties in any proceeding, see Ajomole v. Yaduat (No. 1) (1991) 5 SCNJ 172; Mobil Pro. Co. Unltd. v. LASEPA (2002) 18 NWLR

Law Central Law Report Legal Articles

Cases and Principles on Criminal Trials in Nigeria Vol. 2

fredericknkobowo

March 7, 2023

Proving the Ingredients of an Offence

Ingredients of the Offence of Armed Robbery

UTTO v. STATE (2021) LPELR-56230(SC)

“Now the essential ingredients for the offence of armed robbery have been stated by this Court in a host of authorities. I wish to restate them here as follows:- (1). That these was a robbery (2). That the robbery was an armed robbery (3). That the accused person was one of those who robbed. All of the above must be provided beyond reasonable doubt before a conviction can be sustained and proof beyond reasonable doubt entails the prosecution producing enough evidence to justify the charge. See OLAYINKA AFOLALU VS THE STATE (Supra); FATAI OLAYINKA VS THE STATE (2007) 4 SCNJ 53; CHUKWUKA OGUDO VS THE STATE (2011) 12 SC (PT.1) 71.” Per SAMUEL CHUKWUDUMEBI OSEJI, JSC (Pp 28 – 29 Paras D – A).

OLAYIWOLA v. STATE (2021) LPELR-58288(SC)

“There are three ingredients required to successfully prove the offence of Armed Robbery which are; that there was a robbery or series of robberies, that each robbery was an armed robbery and that the defendant was one of those who committed the offence. See Nwaturuocha v. The State (2011) LPELR-8119 (SC) Pgs. 13-14, Paras. G-B, Bello v. The State (2007) 10 NWLR Pt. 1043 Pg. 564.” Per HELEN MORONKEJI OGUNWUMIJU, JSC (Pp 28 – 28 Paras B – D)

NWOKOCHA v. AG OF IMO STATE (2016) LPELR-40077(SC)

“It is to be noted that the essential ingredients of the offence of armed robbery are: (1) That there was a robbery. (2) That it was an armed robbery. (3) That the accused was the robber or one of the robbers. All the three ingredients must be altogether proved for the offence to be said to have been proved. See Adekoya v. State (2012) MSCJ vol. II p.20 – 21.” Per MARY UKAEGO PETER-ODILI, JSC (Pp 52 – 53 Paras E – A)

OLUGBODE v. STATE (2022) LPELR-58126(CA)

“To secure a conviction for the offence of Armed Robbery, the prosecution must prove the following ingredients by credible evidence: (a) That there was a robbery or series of robberies (b) That the robbery was an armed robbery (c) That the accused participated in the robbery. All the above ingredients must be proved. It is not sufficient that two of the ingredients have been proved leaving one. They all must co-exist for the offence to be proved. See PEDRO VS. STATE (2018) 17 NWLR (PT. 1649)463, BABATUNDE VS. STATE (2018) 17 NWLR (PT. 1649)549, SMART VS. STATE (2016) 9 NWLR (PT. 1516)447 AND EMEKA VS. STATE (2014) 13 NWLR (PT. 1425)614.” Per FOLASADE AYODEJI OJO, JCA (Pp 19 – 19 Paras B – E)

KANGE v. STATE (2021) LPELR-55688(CA)

“It is trite that for a prosecution to secure a conviction for armed robbery, it must establish beyond reasonable doubt the cumulative presence of the following ingredients of the offence: (i) that there was robbery or series of robberies; (ii) that the robbery was an armed robbery carried out with firearms or offensive weapons; and (iii) that the person charged with the offence was one of the robbers or implicated therein. The onus on the prosecution to prove the cumulative presence of the ingredients cannot be compromised in any respect. The onus does not shift at all as it rests squarely on the prosecution throughout the case. Where the prosecution fails to prove any of the ingredients, the offence of armed robbery would not have been established beyond reasonable doubt and the accused person would be entitled to be discharged and acquitted – Dawai Vs State (2018) 5 NWLR (Pt 1613) 499, Orisa Vs State (2018) 11 NWLR (Pt 1631) 453, Amos Vs State (2018) LPELR 44694(SC), John Vs State (2019) LPELR 46936(SC), Ayinde Vs State (2019) LPELR 47835(SC), Iorapuu Vs State (2020) 1 NWLR (Pt 1706) 391.” Per HABEEB ADEWALE OLUMUYIWA ABIRU, JCA (Pp 15 – 16 Paras D – C)

Ingredients of the Offence of Conspiracy

GARGA v. STATE (2022) LPELR-57677(SC)

“The ingredients required by law for the Prosecution to prove the offence of criminal conspiracy under Section 97 (1) of Penal Code are: a) An agreement between two or more persons to do or cause to be done some illegal act or some act which is not illegal by illegal means. b) Where the agreement is other than an agreement to commit an offence that some act besides the agreements was done by one or more of the parties in furtherance of the agreement. c) Specifically, that each of the accused individually participated in the conspiracy. See Yusuf v. FRN (2017) LPELR-43830 (SC) Pg. 26-27, paras. F; State v. Salawu (2012) ALL FWLR Pt. 614 Pg. 30-31; Kayode v. State (2016) LPELR-40028 (SC) Pg. 51-52, paras. F; Eze V. FRN (2017) LPELR-42097 (SC) Pg. 62-63, para. D; Obiakor v State (2002) 6 SC Pt. 11 Pg. 33 at 39-40 and Clark v. The State (1986) 4 NWLR Pt.35 Pg. 381.” Per HELEN MORONKEJI OGUNWUMIJU, JSC (Pp 18 – 19 Paras E – D)

STATE v. FAFURU (2022) LPELR-58482(SC)

“The ingredients of the offence of conspiracy under the Penal Code are as follows: a) An agreement between two or more persons to do or cause to be done some illegal act, or some act which is not illegal by illegal means. b) Where the agreement is other than an agreement to commit an offence, that some acts besides the agreement was done by one or more of the parties in the agreement, and c) Specifically, that each of the accused persons individually participated in the conspiracy. See: Musa v. The State (2016) LPELR-42803 SC; Obiako v. The State (2002) 6 SC (Pt. 11) 33; (2002) LPELR-2168SC.” Per ABDU ABOKI, JSC (Pp 14 – 15 Paras E – B)

ABACHA v. STATE (2002) LPELR-16(SC)

“Finally, the best evidence of conspiracy is usually obtained from one of the conspirators or from inferences. See this court’s remarks in the case of Patrick Njovens & Ors. v. The State (1973) NNLR 76 at page 95: “When it is proposed to give evidence of the happenings inside hell it is only a matter of common sense to call one of the inmates of that place or one whose business is carried out in reasonable propinquity to hell and it must be surprising indeed to find even a lone angel fit and qualified for the assignment. Indeed, it would be preposterous to look for such evidence in other directions. The overt act or omission, which evidence conspiracy is the actus reus and the actus reus of each and every conspirator must be referable and very often is the only proof of the criminal agreement which is called conspiracy. It is not necessary to prove that the conspirators, like those who murdered Julius Caesar, were seen together coming out of the same place at the same time and indeed conspirators need not know each other. See R. v. Meyrick & Ribuff (1929) 21 CAR. 94. They need not all have started the conspiracy at the same time for, conspiracy started by some persons may be joined at a later stage or later stages by others. The gist of the offence of conspiracy is the meeting of the mind of the conspirators. This is hardly capable of direct proof for the offence of conspiracy is complete by the agreement to do the act or make the omission complained about. Hence, conspiracy is a matter of inference from certain criminal acts of the parties concerned done in pursuance of an apparent criminal purpose in common between them and in proof of conspiracy the acts or omissions (and or commissions) of any of the conspirators in furtherance of the common design may be and very often are given in evidence against any other or others of the conspirators.” Per SYLVESTER UMARU ONU, JSC (Pp 78 – 79 Paras E – F)

KAREEM v. STATE (2021) LPELR-58392(SC)

“Sometimes, to prove conspiracy it only takes one of the conspirators to confess to the act or omission and inferences deduced from the evidence that other Defendants also conspired to carry out such an act or omission. See Abacha V. State [2002] SC Pgs. 78-79, Paras. E-F where it was held per Onu JSC that: “conspiracy is a matter of inference from certain criminal acts of the parties concerned done in pursuance of an apparent criminal purpose in common between them and in proof of conspiracy the acts or omissions (and/or commissions) of any of the conspirators in furtherance of the common design may be and very often are given in evidence against any other or others of the conspirators.” Per HELEN MORONKEJI OGUNWUMIJU, JSC (Pp 39 – 40 Paras F – C)

BALOGUN v. STATE (2018) LPELR-44215(SC)

 – Whether it is necessary to prove that conspirators were seen together coming out of the same place at the same time

“It is not necessary to prove that the conspirators were seen coming out from the same place at the same time. Conspirators need not know each other. They also need not have started the conspiracy at the same time. For a conspiracy started by some persons may be joined at a later stage or stages by others. The gist of the offence of conspiracy is the meeting of the mind of the conspirators. See R vs Mevick & Rebuff (1929) 21 CAR 94; Njovens & Ors v. The State (1973) NSCC 257. It is therefore difficult to prove the offence of conspiracy by direct evidence. Conspiracy is a matter of inference from the criminal act of the parties concerned which act is done in pursuance of an apparent criminal purpose. It is therefore the duty of the Court in every case of criminal conspiracy to ascertain as best as it could the evidence of the complexity of any of those charged with the offence. See Daboh & Anor vs The State (1977) 5 SC 222: ERIM vs The State (1994) 4 NWLR (Pt. 346) 535.” Per PAUL ADAMU GALUMJE, JSC (Pp 12 – 13 Paras C – A)

GARBA v. STATE (2020) LPELR-51375(CA)

 – Meaning and ingredients of the offence of conspiracy and how the offence of conspiracy can be inferred; whether evidence of what one accused says in the absence of the other conspirators is admissible against such others

“…The Appellant was also convicted of conspiracy to commit Armed Robbery. “Conspiracy is an agreement of two or more persons to do an act which it is an offence to agree to do” Nwosu Vs State (2004) 15 NWLR pt 897 pg 466, Amachree Vs Nig. Army (2004) 3 NWLR pt 807 pg 256. The ingredients of the offence of conspiracy punishable under Section 97 of the Penal Code are as follows: (a) An agreement between two or more persons to do or cause to be done some illegal act, or same act which is not illegal by illegal means. (b) Where the agreement is other than an agreement to commit an offence, that some acts besides the agreement was done by one or more of the parties in furtherance of the agreement and (c) specifically, that each of the accused persons individually participated in the conspiracy. Abacha Vs Federal Republic of Nigeria (2006) 4 NWLR pt 970 pg 239 Aituma Vs State (2006) 10 NWLR pt 989 pg 452. In this appeal, the Appellant conspired with this gang. He knew the 3rd accused person Jeremiah Stephen who enlisted him to convey their operational gun to the scene of crime. He of course knew what he was enlisted for, to convey the operational gun for a Robbery. There was no evidence that he participated in the actual Robbery. The offence of conspiracy is not defined in the Criminal or Penal Code. Therefore, direct positive evidence of the plot between the co-conspirators is hardly capable of proof. The Courts tackle the offence of conspiracy as a matter of inference to be deduced from certain criminal acts or inaction of the parties concerned. Oduneye Vs The State (2001) 13 WRN pg 88. In this appeal, the Appellant ferried the operational gun through the checkpoints to the scene of crime. Of course he was aware that the gun was not a toy to play with. He knew as a police officer that ferrying the gun across checkpoints was on its own a crime not to think of when it was going to be used for armed robbery. The offence of conspiracy is established once it is shown in evidence that the criminal design alleged is common to all the suspects. Proof of how the suspects are connected with or among themselves is not necessary. As a matter of fact, the conspirators need not know each other. They also need not to have started the conspiracy at the same time. The bottom line of the offence is the meeting of the minds of the conspirators. Nwosu Vs State (supra). The other accused person planned the armed Robbery and enlisted the help of the Appellant to assist them ferry the gun through the police checkpoints. There was from all these snippets of evidence a meeting of the mind of the Appellant with the other accused persons. It is very difficult to prove the offence of conspiracy. It is actually a matter of inference from certain acts of the parties. Consequently, the actual commission of the offence is not necessary to ground a conviction for conspiracy. All that is needed is a meeting of the minds to commit an offence and this meeting of the minds need not be physical.Nwosu Vs the State (2002) 10 NWLR pt 776 pg 612. Daboh Vs State 1977 5 SC pg 197. It is trite law that in a conspiracy proceedings evidence of what one accused says in the absence of the other conspirators is admissible against such others on the basis that if they are all conspirators what one of them say in furtherance of the conspiracy is admissible evidence against them, even though it might have been said in the absence of the other conspirators. This statement of law is thus an exception to the rule of hearsay. Nwosu Vs State (2004) 15 NWLR pt 897 pg 466. The Appellant was part and parcel of the conspiracy and as such was rightly convicted of the offence of Conspiracy to commit armed robbery.” Per UZO IFEYINWA NDUKWE-ANYANWU, JCA (Pp 14 – 17 Paras D – E)

UDO v. STATE (2020) LPELR-49723(CA)

 – How the offence of conspiracy can be inferred

“The gist of the offence of conspiracy is the meeting of the mind of the conspirators. This is hardly capable of direct proof for the offence of conspiracy is complete by the agreement to do the act or make the omission complained about. Hence, conspiracy is a matter of inference from certain criminal acts of the parties concerned done in pursuance of an apparent criminal purpose in common between them and in proof of conspiracy the acts or omissions of any of the conspirators in furtherance of the common design may be and very often are given in evidence against any other or others of the conspirators. It is, therefore, the duty of the Court in every case of conspiracy to ascertain as best as it could the evidence of the complicity of any of those charged with that offence. See COKER J.S.C in NJOVENS VS. THE STATE (1972) LPELR- 2042(SC).” Per YARGATA BYENCHIT NIMPAR, JCA (Pp 20 – 21 Paras C – A)

Proving the Ingredients of an Offence Ingredients of the Offence of Armed Robbery UTTO v. STATE (2021) LPELR-56230(SC) “Now the essential ingredients for the offence of armed robbery have been stated by this Court in a host of authorities. I wish to restate them here as follows:- (1). That these was a robbery (2). That the robbery was an armed

Law Report Legal Articles

Cases and Principles on Criminal Trials in Nigeria

fredericknkobowo

March 7, 2023

Standard of Proof in Criminal Cases

Relevant Sections of the Evidence Act – Section 135 of the Evidence Act 2011

Synopsis – The standard of proof in criminal cases is now established to be proof beyond reasonable doubt and not proof beyond every shadow of doubt. A pertinent question would be what amounts to proof beyond reasonable doubt? In the case of Miller v Minister of Pensions (1947) 2 All ER 372, Lord Denning said on the nature of proof beyond reasonable doubt, said that; It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence, of course, it is possible but not in the least probable the case is proved beyond a reasonable doubt.”

This position has been followed by a plethora of Nigerian cases. Thus, in the case of AKINLOLU v. STATE (2015) LPELR-25986(SC), the Supreme Court described proof beyond reasonable doubt in the following words – “Proof beyond reasonable doubt does not mean proof beyond all doubt, or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. A degree of compulsion which is consistent with a high degree of probability. See Lori & anor v. State 1980 12 NSCC p. 269.” Pp 38 – 38 Paras B – C.

The provision of the law on the standard of proof required in criminal trials must be appreciated against the backdrop of the presumption of innocence of the accused persons (or defendants) as well as the position of the law that mere suspicion is not enough to ground a conviction for an offence.

Decided Cases on the Standard of Proof in Criminal Cases

AJAYI v. STATE (2013) LPELR-19941(SC)

“…the standard of proof in a criminal trial is, proof beyond reasonable doubt. Therefore, it is not enough for the prosecution to suspect a person of having committed a crime, there must be evidence which linked the person accused with the offence alleged.” Per OLUKAYODE ARIWOOLA, JSC (Pp 43 – 43 Paras B – C)

EKPO v. STATE (2018) LPELR-43843(SC)

“Proof beyond reasonable doubt does not mean proof beyond all doubt, or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. As was held by Oputa, JSC in Bakare v The State (1987) 1 NSCC Vol. 18 P.267 at 279, the burden is on the prosecution to prove its case beyond reasonable doubt with emphasis on “reasonable”‘ That not all doubts are reasonable. It was further assessed that reasonable doubt will automatically exclude unreasonable doubt, fanciful doubt, imaginary doubt and speculative doubt i.e. a doubt not borne out by the facts and surrounding circumstances of the case. Reasonable doubt does not eliminate the possibility of any doubts whatsoever, including remote possibilities as was expressed by Denning J in Miller v Minister of Pensions (1947) 2 All ER 373 as follows:- “The law will fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with one sentence – ‘of course it is possible but not in the least probable’ the case is proved beyond reasonable doubt. See also Nwaturuocha v the State (2011) LPELR – 8119 (SC), (2011) 6 NWLR (Pt.1242) 170, Akinlolu v The State (2015) LPELR – 25986 (SC).” Per JOHN INYANG OKORO, JSC (Pp 18 – 19 Paras B – B)

ENEBELI v. STATE (2021) LPELR-54990(SC)

“The law has crystalized in our criminal jurisprudence that an accused person is presumed innocent until he or she is proved guilty. The prosecution is saddled with the burden of proving the guilt of the accused person and the standard of such proof in criminal cases or trial is proof beyond reasonable doubt. See JOSEPH ORUNGU & ORS VS THE STATE (1970) LPELR- 2780 (SC). See Section 135 of the Evidence Act 2011 (as amended) and also Section 138 of the same Evidence Act which makes provision for the standard of proof.” Per ADAMU JAURO, JSC (Pp 16 – 16 Paras D – F)

NWATURUOCHA v. STATE (2011) LPELR-8119(SC)

“It is trite law that it is not the duty of an accused to prove his innocence as a matter of law, there is always a presumption of innocence in favour of an accused. The standard of proof in a criminal trial is proof beyond reasonable doubt. It is not enough for the prosecution to suspect a person of having committed a criminal offence, there must be evidence which identified the person accused with the offence. However proof beyond reasonable doubt does not mean proof beyond shadow of doubt. Aigbadion v. State (2000) 4SC Pt.1 pg.1, Agbe v. State (2006) 6 NWLR pt. 977 pg.545, Section 138 of the Evidence Act Cap 112 Laws of the Federation 1990, Akinyemi v. State (1999) 6 NWLR pt.607 pg.449, Alonge v. I.G.P. (1959) SCNLR pt.576.” Per OLUFUNLOLA OYELOLA ADEKEYE, JSC (Pp 15 – 15 Paras B – F).

Burden of Proof in Criminal Matters

Relevant Section of the Evidence Act – Sections 135 and 139 of the Evidence Act 2011

IORHEM v. STATE (2017) LPELR-43631(CA)

“In a criminal trial, the burden of proof lies throughout upon the prosecution to establish the guilt of the accused person beyond reasonable doubt. The burden never shifts. Even where the accused person in his statement to the police admitted committing the offence, the prosecution is not relieved of the burden. Failure to discharge this burden renders the benefit of doubt in favour of the accused so that a wrong person may not be convicted for an offence he never committed. See People of Lagos State V. Umaru (2014) 3 SCNJ 114 at 137 and Igabele V. The State (2006) 6 NWLR (Pt. 975) 100.” Per JAMES SHEHU ABIRIYI, JCA (Pp 29 – 30 Paras D – A)

OMOREGIE v. STATE (2017) LPELR-42466(SC)

“The Law is settled that in criminal cases, the burden of proof that the accused committed the offence for which he is charged lies squarely on the prosecution, who must prove its case beyond reasonable doubt and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden never shifts. See Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria, Section 135(2) of the Evidence Act, Alabi v The State (1993) 7 NWLR (Pt.307) 511 8t 531 paras A-C, Solola v The State (2005) 5 SC (Pt.1) 135.” Per PAUL ADAMU GALUMJE, JSC (Pp 22 – 23 Paras F – C)

ADEKOYA v. STATE (2012) LPELR-7815(SC)

“The fundamental aspect of burden of proof in criminal trials is the presumption of innocence in favour of an accused. It is entrenched in Section 36(5) of the 1999 Constitution that “Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.” The Evidence Act Section 138(1) Laws of the Federation 2004 (Now Section 135(1) of the Evidence Act 2011) however stipulates that: “If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.” Under our criminal law, it is not the duty of an accused to prove his innocence. The standard of proof in a criminal trial is proof beyond reasonable doubt. Which demands that it is not enough for the prosecution to suspect a person of having committed a criminal offence? There must be evidence which identified the person accused with the offence. The consequences of presumption of innocence in favour of an accused person are that the burden placed on the prosecution to prove the guilt of an accused person beyond reasonable doubt must be satisfied. Any slightest doubt raised by an accused person shall lead the Court to resolve this doubt in favour of an accused. Igabele v. State (2006) 6 NWLR (pt.975) pg.100, Agbo v. State (2006) 6 NWLR (pt.977) pg.545, Aigbadion v. State (2000) 4 SC (pt.1) pg.15.” Per OLUFUNLOLA OYELOLA ADEKEYE, JSC (Pp 28 – 29 Paras D – B)

OWOLABI v. STATE (2018) LPELR-46031(CA)

“In criminal trial, the burden of proving the guilt of the accused person is on the prosecution to establish his guilt beyond reasonable doubt and it never shifts. ANI V STATE (2003) 11 NWLR (PT. 830) PG. 142, IFEJIRIKA V STATE (1999) 3 NWLR (PT. 593) PG. 59, IGABELE V STATE (SUPRA).” Per UZO IFEYINWA NDUKWE-ANYANWU, JCA (Pp 25 – 26 Paras F – A)

Mens Rea and Actus Reus

Need to Prove Mens Rea and Actus Reus

LIMAN v. STATE (2016) LPELR-40260(CA)

“It is also trite that criminal responsibility for the commission of a crime is premised on the satisfactory proof of the two pillars of actus reus and mens rea, the doing of the act that constitutes the offence and the requisite mental capacity and the duty is always on the prosecution to prove the commission of a crime by proving the act done and the requisite guilty mind of the accused person beyond reasonable doubt. In other words, in a criminal trial, before an accused person is asked to undergo any sort of sentence, there must be a finding by the trial Court on the concurrence of the two main elements of any crime; that is, the actus reus and the mens rea. Actus reus is taken to be the wrongful deed that comprises the physical components of a crime and that generally must be coupled with mens rea. Mens rea is the criminal intent or guilty mind of the accused. For the prosecution to establish a criminal act against an accused person, it must go beyond establishing the commission of the unlawful criminal act by the accused and establish that the accused had the correct legal criminal mind of committing the act. The two must co-exist, whether explicitly or by necessary implication – Njoku Vs State (2013) 2 NWLR (Pt 1339) 548.” Per HABEEB ADEWALE OLUMUYIWA ABIRU, JCA (Pp 12 – 13 Paras E – D)

ABUBAKAR v. FRN (2022) LPELR-58650(CA)

In every criminal trial, the basic components that must be established by the prosecution are actus reus and mens rea. That is, the doing of the act or omission complained of and the guilty mind that procured the act or omission. That means, apart from doing the act (in this case, issuing a dud cheque), there must also be the requisite intention to deceive, cheat, swindle or defraud the recipient of the cheque and deny him of the value accrued to the cheque, after enjoying that corresponding value (by the person who issued the cheque). The legal principle of actus reus and men rea are well defined. See the cases of Eze Vs The State (2017) LPELR-42006 CA: “To establish criminal responsibility, there must be mens-rea – criminal knowledge or intention to commit the offence, to support the actus reus – the actual act. Aminu Tanko Vs The State (2009) 4 NWLR (pt.1131) 430; Okewu Vs FRN (2012) LPELR 7834 (SC).” See also Idagu Vs The State (2018) LPELR-44343 (SC): “It is a fundamental principle of criminal law that a crime consists of both a mental and a physical element. Mens rea, a person’s awareness that his or her conduct is criminal, is the mental element, and actus reus, the act itself is the physical element. The concept of mens rea, which is Law Latin for “guilty mind”, developed in England around the year 1600, when Judges began to hold that an act alone could not create criminal liability unless it was accompanied by a guilty state of mind. The degree of mens rea required for a particular common law crime varied then. In other words, mens rea is a criminal intention or knowledge that an act is wrong, and today most of the crimes are defined by statutes that generally contains a word or phrase indicating the mens rea requirement. Thus, a typical statute may require that a person act knowingly, purposely or recklessly – see legal-dictionary.thefreedictionary.com. In this case, the Appellant was charged with the offence of murder contrary to Section 316 of the Criminal Code applicable in Ondo State, and the Prosecution was expected to prove beyond reasonable doubt that the alleged act was intentional with the knowledge that death or grievous bodily harm was a probable consequence – Akinfe V. State (1988) 3 NWLR (Pt. 85) 729.” Per AUGIE, JSC” Per ITA GEORGE MBABA, JCA (Pp 17 – 19 Paras B – A)

ONYA v. STATE (2019) LPELR-48500(CA)

“The law presumes that a man intends the natural and probable consequences of his acts and that the test to be applied to the circumstances is the objective as opposed to subjective test of what a reasonable man in the street would contemplate as the probable result of his acts. In the instant case, would a reasonable man contemplate the murder of the deceased? In other words, can intention to murder the deceased be inferred from the facts and circumstances of the case? I do not think so. There was no evidence of intention by the appellant to kill the deceased or caused him any grievous harm. In the circumstances of this case, I am of the view that it was not enough for the prosecution to prove that the appellant was one of the youths that invaded the deceased’s house. It was necessary for the prosecution to prove beyond reasonable doubt that the appellant embarked on the act which resulted in the murder of the deceased with a culpable state of mind which in my view the prosecution failed to do. See BOLANLE ABEKE V. THE STATE (2007) LPELR- 31 (SC) AT 18 B-F) where the Supreme Court per TOBI,JSC held that: “I entirely agree with the appellant that to convict on the above subsection, the prosecution must prove that the accused had mens rea and actus reus. Put in common simple parlance, mens rea means a guilty mind. And actus reus means a guilty act. In cases of strict liability, mens rea comes before actus reus. In other words, the accused develops the guilty mind before guiIty act. Put in another language, the guilty mind instigates the guilty act or flows into the guilty act. The period of time between the two cannot be determined in vacuo but in relation to the factual situation in each case dictated by the state of criminality of the accused at the material time. There are instances where the mens rea is automatically followed by the actus reus. The above element of proximity apart, there could be instances of spontaneity too.”  Per MISITURA OMODERE BOLAJI-YUSUFF, JCA (Pp 24 – 27 Paras C – C

TAIWO v. FRN (2019) LPELR-47635(CA)

“Except in cases of strict liability, offences in the Criminal Law are structured to comprise of two parts – a physical part and a mental part, the physical part or actus reus means the whole definition of the crime with the exception of the mental element; See Glanville William Criminal Law 18. See also Okonkwo and Naish Criminal Law in Nigeria 45. There is also the mental element because the law does not ordinarily punish mere intention until it merges into the physical act. It is expressed as “actus non facit reum nisi men sit red’, the act does not constitute a crime unless accompanied by a guilty mind. Every offence is defined by its ingredients or elements. In this appeal, one element of the offence under Section 26 (2) of the Trafficking In Persons Act is “to obtain financial benefit” i.e. an inducement in the alleged trafficker to obtain financial benefit. This can be proved by showing a financial consideration at any stage. It must not be presumed as the trial Judge did in this case. One cannot say “she probably committed the offence as she couldn’t have done it nothing”. Pecuniary benefit in the real sense must be proved. The law is that the prosecution is bound to prove its case beyond reasonable doubt and in doing so must prove all elements of the offence physical and mental. R V. LAWRENCE (1933) 11 NLR 6; 1933 AC 699; R V. ADAMU (1944) 10 WACA 161 SECTION 135 OF THE EVIDENCE ACT 2011. A trial Court would be asking questions such as the following: i. What was paid to the defendant/appellant and why? ii. Can financial proof be established by circumstantial evidence? iii. In what pecuniary way was the defendant/appellant induced? iv. What if the intendment of the defendant/appellant was just to help the mother of Abike have normal and lawful custody of her natural child? v. Is it forbidden by any law for Abike to rejoin her mother in London? The trial Court failed in all these inquiry. The trial Judge acted on her own conjecture and not evidence. The lead judgment in this appeal by my Lord Folasade Ayodeji Ojo, JCA has demonstrated the futility of such conjecture. The stream of the Criminal Law must be kept pure and devoid of all subjectivity. Judges must look beyond the parties in cases before them.” Per NONYEREM OKORONKWO, JCA (Pp 28 – 30 Paras F – E).

STEPHEN v. STATE (2008) LPELR-8360(CA)

“It is imperative to state that the offence of being in an unlawful possession of firearms does not require proof of mens res and actus reus as contended by the Appellant’s Counsel. It is a strict liability offence. The elements do not contain the need for criminal intent or mens rea. Once a person has knowingly taken possession of an article and it remains within his control, he continues in possession of it. So long as the appellant did not come into possession of the weapon in accordance with the Act or any order made thereunder, it can never be argued that his intentions were entirely lawful. It is not necessarily a reasonable excuse that the weapon is carried only for self-defence. One, who is under constant threat, it is said, must resort to the police. He commits an offence if he regularly goes out armed for self-defence. Thus, in Bradley V. Moss (1974) Crim. LR 430, DC: Pittard V. Mahoney (1977) Crim. LR 169, Grieve V. Macleod (1967) SCT 70, it was held that there was no excuse for carrying an ironbar though D had reasonable cause to fear and did fear that he would be violently attacked and intended to use the bar for defence only, and, that, it was not reasonable for an Edinburgh taxi-driver to carry two feet of rubber hose with a piece of metal inserted at one end, though he does so for defence against violent passengers whom taxi drivers sometimes encounter at night. See Smith & Hogan Criminal Law, 10th Edition (2002) p. 461-462. In Olatunji’s case, it was because grenade was not covered by the definition of firearm, that a ballistician was held to have been needed to establish whether the grenade was a firearm or not.” Per THERESA NGOLIKA ORJI-ABADUA, JCA (Pp 16 – 18 Paras E – A).

EGWU v. STATE (2019) LPELR-48499(CA)

“The question is whether the appellant had the mens rea, that is the intention to commit murder or serious bodily harm necessary to convict him for murder. From the entire evidence on record, it is clear that the only intention of sending the task force to bring those not at the meeting was to mobilize the youths for the meeting. I do not think it can reasonable be argued that the appellant had the slightest criminal intent or could have foreseen the murder of the deceased as the consequence of trying to mobilize the youths to attend a meeting. The law presumes that a man intends the natural and probable consequences of his acts and that the test to be applied to the circumstances is objective as opposed to subjective test of what a reasonable man in the street would contemplate as the probable result of his acts. In the instant case, would a reasonable man contemplate the murder of the deceased? In other words, can intention to murder the deceased be inferred from the facts and circumstances of the case? I do not think so. There was no evidence of intention by the appellant to kill the deceased or caused him any grievous harm. In the circumstances of this case, I am of the view that it was not enough for the prosecution to prove that the appellant was the one that sent the task force and/or the youths to the deceased’s house. It was necessary for the prosecution to prove beyond reasonable doubt that the appellant embarked on the act which resulted in the murder of the deceased with a culpable state of mind which in my view the prosecution failed to do. See BOLANLE ABEKE V. THE STATE (2007) LPELR- 31 (SC) AT 18 B-F) where the Supreme Court per TOBI, JSC held that: “I entirely agree with the appellant that to convict on the above subsection, the prosecution must prove that the accused had mens rea and actus reus. Put in common simple parlance, mens rea means a guilty mind. And actus reus means a guilty act. In cases of strict liability, mens rea comes before actus reus. In other words, the accused develops the guilty mind before guiIty act. Put in another language, the guilty mind instigates the guilty act or flows into the guilty act. The period of time between the two cannot be determined in vacuo but in relation to the factual situation in each case dictated by the state of criminality of the accused at the material time. There are instances where the mens rea is automatically followed by the actus reus. The above element of proximity apart, there could be instances of spontaneity too.” In NJOKU & ORS. V.THE STATE (2012) LPELR-20608(SC) AT 21-22 (F-E), the Supreme Court per Onoghen JSC held that: “it is elementary in criminal trial that before an accused person is asked to undergo any sort of sentence, there must be a finding by the trial Court on the concurrence of the two main elements of any crime that is the ACTUS REUS and the MENS REA. ACTUS REUS is taken to be the wrongful deed that comprises the physical components of a crime and that generally must be coupled with MENS REA. MENS REA is the criminal intent or guilty mind of the accused. For the prosecution to establish a criminal act against an accused person, it must go beyond establishing the commission of the unlawful criminal act by the accused but must establish that the accused has the correct legal (criminal) mind of committing the act. The two must co-exist whether explicitly or by necessary implication. In their interplay of words/phrases reflected in their book: ‘Criminal Law 831’, 3rd edition 1982, Rollin M. Perkins and Ronald N. Boyce, stated that: “The actus reus is essential to crime but is not sufficient for this purpose without the necessary mens rea, just as mens rea is essential to crime but is insufficient without the necessary actus reus.” It is clear to me from the entire evidence on record that the prosecution failed to prove the appellant had the necessary mens rea or criminal intent to murder the deceased.” Per MISITURA OMODERE BOLAJI-YUSUFF, JCA (Pp 24 – 28 Paras D – A)

STATE v. KALIB (2021) LPELR-56084(CA)

“…for a person to be held liable for a criminal offence there must be present the physical and mental elements of the offence which in legal parlance is referred to as the actus reus and the mens rea. Except in strict liability offences, no person will be convicted for a criminal offence if either the actus reus or mens rea is missing. This is an established principle of law. In proving its case beyond reasonable doubt, the prosecution is expected to prove both aspect of the offence. See Taiwo vs FRN (2019) LPELR-47635 (CA). In Olufemi Babalola &amp; Ors vs The State (1989) 7 SC (pt 1) 94, the apex Court per Oputa, JSC of blessed memory drove home this point in these words: “It is not necessary here to go into remote history of mens rea except to say that in common law offences, there are always present two essential elements:- (a) a guilty conduct and (b) a mind at fault. It was the great St. Augustine who once remarked that “ream linguam non facit nisi mens rea”. Probably from there, the legalists got the now popular latin maxim – actus non facitreum nisi mens sit rea. No man, (including the 1st appellant), should according to this maxim be convicted of a crime unless his physical conduct, (the actus) is accompanied with a guilty mental element a mind of fault, a mens rea. The intent and the act must both concur to constitute the crime:- Fowler v. Padget (1997) 7 T. R. 509 at p. 514. And as Stephen J., observed in R. v. Tolson (1889) 23 Q.B.D. 168 at p. 187:- “The full definition of every crime contains expressly or by implication a proposition as to the state of mind.” Per EBIOWEI TOBI, JCA (Pp 11 – 12 Paras B – E)

Proving the Ingredients of an Offence

TEMITAYO v. STATE OF EKITI (2021) LPELR-56039(CA)

“The ingredients of any offence are always discernable from the language used by the legislature in providing for the offence. See the case of ROLAND VS. FRN (2018) LPELR-43686 (CA) where this Court held on page 32, paragraph B, that: It is settled law that the ingredients of an offence are embedded in the words employed by the statute creating the offence and it will not be proper to import words, which the lawmaker did not use in order to ascertain the ingredients of the offence.” Per BALKISU BELLO ALIYU, JCA (Pp 21 – 21 Paras B – D)

ROLAND v. FRN (2018) LPELR-43686(CA)

“It is settled law that the ingredients of an offence are embedded in the words employed by the statute creating the offence and it will not be proper to import words which the lawmaker did not use in order to ascertain the ingredients of the offence.” Per UGOCHUKWU ANTHONY OGAKWU, JCA (Pp 32 – 32 Paras B – D)

TAIWO v. FRN (2019) LPELR-47635(CA)

“Having failed to establish that the Appellant benefited financially or materially from the deal, a consideration of proof of the other ingredients of the offence under Section 26(2) (Supra) has become unnecessary. Failure of the prosecution to establish one of the ingredients of the offence is sufficient to defeat the entire prosecution. In other words, failure to prove one essential ingredient of an offence is sufficient to find the case of the prosecution not proved beyond reasonable doubt.” Per FOLASADE AYODEJI OJO, JCA (Pp 25 – 26 Paras F – B)

FRN v. TALAL (2022) LPELR-57088(CA)

“I hold that the learned trial Judge was right when he held that the prosecution did not prove that the pretence or representation made to PW1 was false. Having found as above, it is not necessary to proceed to pronounce on the next element of the offence, which is, whether the Accused/Respondent made the pretence or representation with the intention to defraud. This is because, as stated on the onset of this Judgment, the prosecution have the onerous duty to establish every ingredient of the offence charged, otherwise they would have failed to prove the offence beyond reasonable doubt. In other words, once any one of the essential elements of the offence are not proved, it would mean that the charge has not been proved beyond reasonable doubt, and the accused will be entitled to an acquittal. See Alabi v. The State (1993) 7 NWLR (Pt. 307) 511; Darlington v. FRN (2018) 11 NWLR (Pt. 1629) 152 and Kassim v. State (2017) LPELR-42586 (SC). See also Ameh v. State (2018) 12 NWLR (Pt. 1632) 99 and Aliu v. State (2015) 2 NWLR (Pt.1442) 51. Thus, in Nwaturuocha v. State (2011) 6 NWLR (Pt. 1242) 170, the Supreme Court, per Adekeye, JSC said: “In the process of establishing the guilt of an accused, the prosecution has to prove all the essential elements of an offence as contained in the charge. While discharging the responsibility of proving all the ingredients of the offence vital witnesses must be called to testify during the proceedings. Before a trial Court comes to the conclusion that an offence had been committed by an accused person, the Court must look for the ingredients of the offence and ascertain critically that acts of the accused comes within the confines of the particulars of the offence charged …” It follows therefore that, were the Court finds that an essential element of the offence charged has not been proved, it would mean that the prosecution failed to prove the essential ingredients of the offence beyond reasonable doubt and the Appellant would be entitled to an acquittal. See Ibrahim v. State (2015) LPELR-40833 (SC); Okoro v. State (1988) 5 NWLR (Pt. 94) 255 and Shehu v. State (2010) 8 NWLR (Pt. 1195) 112. I therefore hold that, for failing to prove that the pretence or representation made to the Accused/Respondent was false, an essential ingredient of the offence charged has not been proved beyond reasonable doubt.” Per HARUNA SIMON TSAMMANI, JCA (Pp 31 – 33 Paras B – B)

Ingredients of the offence of Armed Robbery

MABA v. STATE (2020) LPELR-52017(SC)

“All the ingredients of the offence charged must be established or proved in order to obtain a conviction. Failure to prove any the ingredients of the offence charged, the accused is entitled to acquittal by the trial or appellate Court. In a charge of armed robbery, the prosecution is expected to prove beyond reasonable doubt, the undermentioned elements, namely- (I) that there was a robbery, (II) that the robbers or any of them was armed at the time of the robbery; and (III) that the accused person or persons was/were the armed robber(s). All the above ingredients must co-exist. In other words, if any one or more of these ingredients has not been proved; then the offence fell short of being proved beyond reasonable doubt and therefore the Court must discharge and acquit the accused person of the offence of armed robbery. See Per Sanusi, JSC in Ugboji v. State (2017) LPELR-43427 (SC).” Per UWANI MUSA ABBA AJI, JSC (Pp 36 – 37 Paras C – A)

Cont’d

Standard of Proof in Criminal Cases Relevant Sections of the Evidence Act – Section 135 of the Evidence Act 2011 Synopsis – The standard of proof in criminal cases is now established to be proof beyond reasonable doubt and not proof beyond every shadow of doubt. A pertinent question would be what amounts to proof beyond reasonable doubt? In the

Law Report Legal Articles

INSUFFICIENT DENIAL IN PLEADINGS

fredericknkobowo

March 6, 2023

Written by Carrington Omokaro, Esq

An averment in a statement of defence which states “The defendant denies paragraph _ and puts l NJ the plaintiff to the strictest proof” or “The defendant is not in a position to admit or deny _ and will at the trial put the plaintiff to proof”, amounts to an insufficient denial. Such averment does not deny the facts sufficiently enough to raise any issue in respect of the said facts. Where there is no issue the question of burden of proof does not arise. – Lewis & Peat (N.R.I) Ltd v. A.E Akhimien (1976) 7 SC 157

Explanation

In the case earlier cited, the Appellant as plaintiff in his statement of claim averred

1️⃣. The Plaintiffs are a trading company registered in Nigeria with their Headquarters in Ogbarefe in the Midwestern State.

2️⃣The Plaintiffs buy rubber lumps and process them for export

The Respondent as defendant at the trial court in paragraph 3 of the statement of defence stated The defendant is not in a position to admit or deny paragraphs 1 & 2 of the statement of claim and would put the Plaintiffs to the strictest proof thereof.

During address, learned counsel for the respondent for the first time raised the question of capacity of the appellants to sue. He submitted that there was “no legal person before the court as there is no averment that the plaintiff is a legal person.” Continuing his submissions he pointed out that no certificate of incorporation of the appellants’ company was exhibited at the trial and that in the circumstances the appellants could neither sue nor be sued. The learned trial Judge in a considered judgment held that the appellants having failed to establish their corporate personality could not maintain the claim which must be dismissed. The trial Judge further stated that “_When the corporate existence of plaintiff was impugned by the defendant, it became necessary for the plaintiff to adduce evidence in proof thereof of the fact of incorporation. Oral assertion by a junior employee of the company is not enough. The certificate of incorporation or registration under the Companies Act…………………….. should be tendered or evidence of its non-existence given

On Appeal to the Supreme Court, the Apex Court in allowing the Appeal stated

“If a defendant refuses to admit a particular allegation in the statement of claim, he must state so specifically; and he does not do this satisfactorily by pleading thus: “defendant is not in a position to admit or deny (the particular allegation in the statement of claim) and will at the trial put the plaintiff to proof”. As was held in Harris v. Gamble (1878) 7 Ch D 877. A plea that “defendant puts plaintiffs to proof” amounts to insufficient denial…We are, therefore, of the opinion that paragraph 3 of the Statement of Defence did not deny the facts alleged in paragraphs 1 & 3 of the Statement of Claim sufficiently enough to raise any issue in respect of the facts”.

Written by Carrington Omokaro, Esq An averment in a statement of defence which states “The defendant denies paragraph _ and puts l NJ the plaintiff to the strictest proof” or “The defendant is not in a position to admit or deny _ and will at the trial put the plaintiff to proof”, amounts to an insufficient denial. Such averment does

Law Report Legal Articles

RES JUDICATA V ISSUE ESTOPPEL

fredericknkobowo

March 6, 2023

Written by Carrington Omokaro, Esq

  1. ISSUE ESTOPPEL
    Illustration

Making reference to a land dispute, Mr. A sues Mr. B in 2012 asking the court to declare him the owner of the land in dispute. Mr B did not counter-claim. The court eventually holds that Mr. A has failed to prove title to land. Mind you, Mr. B did not counterclaim, so the fact that Mr A’s claim was dismissed, does not make him the owner.

What then happens if Mr. A refuses to give up possession ? Should Mr. B take the laws into his hand and kick Mr A out, No !. Should he also wait for Mr. A to file another action, so that he (Mr. B) can raise res judicate…No!
Mr. B can now institute an action against Mr. A to prove his own title and in his statement of claim(i.e Mr. B’s), he will then plead the earlier decision as Issue Estoppel (I.e to establish the fact that Mr. A (Claimant in the previous suit, now defendant in the subsequent suit) is estopped from pleading any fact in his statement of defence towards establishing title. Hence, Mr. A will be estopped from leading evidence as regards title.

2️⃣ RES JUDICATA
It is only used as a defence and when raised, it robs the court of jurisdiction. This is why a Claimant cannot raise Res judicata because he cannot be validly seen to raise a plea that oust the court from entertaining his own suit.
It gives the impression that the claimant in the instant suit had judgment delivered against him or that the claimant’s claim had earlier been dismissed.
Illustration
Using same scenario as stated in the preceding paragraph… If Mr. A had successfully proved title, then Mr. B ought not to be in the land. However, assuming Mr. B decides to institute an action against Mr. A who had earlier gotten judgment in his favour, then Mr. A who will now be the defendant in the subsequent action can raise the defence of RES JUDICATA which operates not only against the party whom it affects(Mr. B), but also against the jurisdiction of the court itself. The party
affected (Mr. B) is estopped per rem judicatam from bringing a fresh claim before the court. At the same time, the Jurisdiction of the court to hear such
claim is ousted.” This is because the court having previously made a pronouncement on that claim between both parties in the previous suit is functus officio

UKAEGBU & ORS vs. UGOJI & ORS (1991) 6 NWLR (Pt. 196) 127

Written by Carrington Omokaro, Esq Making reference to a land dispute, Mr. A sues Mr. B in 2012 asking the court to declare him the owner of the land in dispute. Mr B did not counter-claim. The court eventually holds that Mr. A has failed to prove title to land. Mind you, Mr. B did not counterclaim, so the fact

Legal Articles

EX – PARTE APPLICATION IN REMAND PROCEEDINGS, AN AMBUSH AGAINST A SUSPECT/DEFENDANT UNDER THE AKS ACJL AND OPTIONS THAT AVAIL A SUSPECT/DEFENDANT/DEFENCE LAWYER

fredericknkobowo

August 31, 2022

Written by Meti M. Ukpeh, Esq.

A.)  As we all know, a remand proceeding is simply, a criminal procedure undertaken by a criminal prosecutor before a Magistrates’ Court who will remand a suspect in custody as a result of felonious charges or capital offences against the suspect/defendant.

This procedure had been rampant, prior to the new law, the Administration of Criminal Justice Law of Akwa Ibom State (hereinafter referred to as, the “new law”, “law” or “ACJL”), as lay police prosecutors found comfort in charging suspects/accused (now defendants) with capital offences in the Magistrates’ Court who, in recourse to its lack of jurisdiction to try such offences, will remand these suspects/defendants in custody pending when a formal charge is instituted in the High Court against the suspect/defendant, as the case may be.

However, thanks to section 106(d) that rooted out lay police prosecutors save police lawyers. Note here that, by reason of S.492 of the ACJL, police include other law enforcement agencies.

It is pertinent to note that the new law envisages a remand proceeding by an ex – parte application, viz:

S. 292(1) provides thus:

A suspect arrested for an offence which a Magistrate’s Court has no jurisdiction to try shall, within a reasonable time of arrest, be brought before a Magistrates’ Court for remand.

Ss.2: an application for a remand under this section shall be made ex – parte and shall be-

  1. Made in the prescribed “Report and Request for Remand Form” as contained in Form 8, in the First Schedule to this Law; and
  2. Verified on oath and contain reasons for the remand request.

worthy of note is the fact that the ordinary effect of an ex-parte application is for urgent or emergency situation and for an order in the interim, hence lapses after a short period of time, usually 7days (a week) except the extant laws, rules of court provide otherwise or the court extend such duration but not beyond seven days pending when an interlocutory application is brought.

B) However, the new law, ACJL, has comfortably provided what or the duration of such an order brought by ex-parte application, thus, S.  295(1) provides:

Where an order of remand of the suspect is made pursuant to section 292 of this law, the order shall be for a period not exceeding twenty-one days in the first instance, and the case shall be returnable within the same period

The effects thereof on a suspect/defendant as the case may be include:

  1. The remand proceeding is done without notices to the suspect/defendant for proper time and facility to prepare for his trial
  2. He may be remanded in a correctional centre prescribed in the order for a period of 21 days pending a formal charge instituted against him by the criminal prosecutor in the high court.
  3. He may remain in the correctional centre for a cumulative period of 84days before the court (Magistrates’ Court that had ordered the remand) can discharge him without a formal charge instituted against him.

C) Options That Avail a Suspect/defendant/defence lawyer

  1. The suspect/defendant lawyer may, on the hearing of the ex-parte application, invoke section 294 of the law which provides thus:

 The court may, in considering an application for remand brought under s.292 of this law, grant bail to the suspect brought before it, taking into consideration the provisions of sections 158 to 188 of this law relating to bail.

 Note: this is safer where the suspect “got wind” of his arraignment in the magistrates’ court.

  1. The suspect/or through his counsel can invoke s. 348(2) of the law which provides:

In a trial in the magistrates’ court or tribunal, the prosecution shall, provide the defendant all material that the prosecution intend to rely on at the trial, before or at the commencement of the trial

  1. He can invoke section 36(6) (a and b) of Constitution of the Federal Republic of Nigeria, 2011 as amended, on the ground of fair hearing in according him adequate time and facility to prepare for his defence which is in pari material with s.348(2) of the law.

For the avoidance of doubts, section 36 (6) (a and b) provides thus:

Every person who is charged with a criminal offence shall be entitled to-

  1.  Be informed promptly in the language that he understands and in detail of the nature of the offence;
  2. Be given adequate time and facilities for the preparation of his defence
  3. The suspect/defendant, better still, his lawyer, can also within 21day in custody apply to the court (Magistrates’ Court that ordered his remand) for an inquiry on his arrest and custody with a possibility of admission to bail by the court. See: section 32(c) and s. 32(2) of the law:

s.32(2): the court shall order the production of the suspect detained and inquire into circumstances constituting the grounds of the detention and where, it deems fit, admits the suspect detained to bail.

In conclusion, it is evidently safer to submit that, whereas the remand proceedings by ex-parte application is a clog, an ambush or a waylay of the suspect/defendant by the prosecution upon reliance on the strict wordings of section 292 of the new law, it is pertinent to hold that there is a relief, a succor and a solace for the suspect/defendant as there are very other options opened for the suspect/defendant to ensure the enforcement of his rights as extensively discussed above.

About the Writer

Meti Monday Ukpeh ESQ is a Public Affairs Analyst and Human Rights Lawyer. He can be reached via metiukpeh8899@gmail.com

Written by Meti M. Ukpeh, Esq. A.)  As we all know, a remand proceeding is simply, a criminal procedure undertaken by a criminal prosecutor before a Magistrates’ Court who will remand a suspect in custody as a result of felonious charges or capital offences against the suspect/defendant. This procedure had been rampant, prior to the new law, the Administration of