LESSON OUTCOMES:

At the end of this lesson students would be able to:

1. Discuss and explain the various courts of criminal jurisdiction in Nigeria.
2. Discuss the criminal jurisdiction of courts and the venue of criminal trials.
3. Explain the jurisdiction and venue of criminal trials of the International Criminal Court.

Note: Don’t mix up jurisdiction of civil matters with jurisdiction of criminal matters.

Types of jurisdiction

Jurisdiction is the authority of a court to decide matters litigated before it.

Jurisdiction is statutory, so for a court to have jurisdiction you must be able to point to a statute that gives it jurisdiction – Constitution or statute – Nyame v FRN (2010) All FWLR (pt 527) 618

There are various types of jurisdiction of courts including original, appellate, territorial etc.

Contrast inherent jurisdiction: power to regulate proceedings, punish for contempt, consequential orders etc; not independent source of jurisdiction – Yusuf v Obasanjo (2003) 15 NWLR (pt.843) 293 @ 304 - 305

In criminal trials jurisdiction is territorial. The implication of this is that if an offence occurs in a territory it’s the court in that geographical area or venue of the offence that will have jurisdiction over that matter. An offence should be tried where it occurs.

It is possible that a crime occurs in more than one state,in such a case the principle of territorial jurisdiction still applies. So a crime can be partially, substantially or conclusively committed in one state and the suspect arrested in another state. A foreign court to the matter cannot try the offence, an element of the offence has to occur in the state for the court to have jurisdiction.S12a of the Criminal Code.

If the suspect committed the offence in that state and is in that state, the offence is triable in that state. If there are several elements of an offence, any of the elements that occur in that state confers jurisdiction in that state. If the initial elements occur in a state and the suspect enters another state, the mere entry itself confers jurisdiction on the court of that state.

Territorial jurisdiction of courts

• Njovens v state (1973) NSCC 257*
• Haruna v State (1972)
• Osoba v Queen (1961) 1 All NLR 1
• Okoro v AG (West) (1966) NMRL 13
• Adeniji v State (2001) 13 NWLR (pt.730) 375

Three pillars that constitute the jurisdiction of the court: Subject matter, bench - not properly constituted, due process of law (if there are conditions precedents that haven’t been meet, originating ,…)

The case comes before the court initiated by due process of law, and upon fulfilment 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.

There are 3 stages of answering questions in law school: 1) You state a principle of law relevant to that subject, 2) you apply the principle to the facts of the case, 3) then you cite an authority. Don’t start with authority.

Federal high court/ national industrial court

There is only one FHC and NIC in the country

• 19, 45 Federal High Court act. S 45 recognises that there are divisions of the court and in criminal cases where an offence is committed in a division that offence will be charged in that part of the FHC. Some divisions of the FHC can cover more than one state. This was also stated in Ibori v FRN (2009) – That irrespective of the fact that there is only one FHC the concept of territorial jurisdiction is still recognised
• 249, 254A, 1999 constitution
• 21 NIC act

Will this affect the territorial jurisdiction?

• Abiola v FRN (1995) 3 NWLR (pt.382) 203 – where the offence is of a national character with a national effect wherever that element will be committed, it can be tried in any state, treason cannot be localised. The case is still good law to the extent of the matter it decided; Contrast Ibori v FRN (2009) All FWLR (pt.487) 159.

Courts of special criminal jurisdiction

Meaning – courts that deal with specific person or specific offences. It has a limited scope. E.g. Federal High Court, National Industrial Court, juvenile courts, coroner’s court, courts martial 

Courts of general criminal jurisdiction

Meaning – the categories of person and subject matter it can handle are broader than courts of special jurisdiction

Courts of general criminal jurisdiction are

• Customary courts
• Magistrate courts
• High courts including the high court of the FCT
• Area courts

Federal high court

S251 of the 1999 constitution as amended. For Criminal jurisdiction of the Federal High Court see s 251(2)&(3) for subsection (3) it has concurrent jurisdiction, but for treason, treasonable felony and allied offences it has exclusive jurisdiction 251(2).

Matters that are in s251(1) are not exclusive to the FHC, it is concurrent and can be shared.

Irrespective of the fact that the interpretation of s 251(3) (so matters contained in s 251(1)) confers concurrent jurisdiction on the courts, where there is any statute that confers exclusive jurisdiction in any court other than the FHC, that other court will have exclusive jurisdiction.

Note:

• Mandara v AG federation (1984) 4 S.C 8
• Abass v COP (1998) 12 NWLR (pt.577) 308
• 286 (1) 1999 constitution
• Momodu v state (2008) ALL FWLR
• FRN v Nwosu

TREASON AND TREASONABLE FELONIES

1. 251(2), 1999 Constitution, exclusive to the FHC

Treasonand treasonable offences decree 1993 established the special military tribunal. Transfer to the FHC by tribunal (certain consequential amendments) act 1999 with effect form 29^th may 1999. So jurisdiction is in the FHC , see  Mandara v AG FED  

Note specific statutes conferring exclusive jurisdiction on the FHC

• 26, National Drug Law Enforcement Agency
• S 32(1), Terrorism (prevention) Act 2011 (as amended)
• 19 (1), Money Laundering (prohibition) Act 2011 (as amended)
• 8, counterfeit currency (special provisions) act
• In the face of specific provisions, will the state high court have concurrent jurisdiction?

National Industrial Court

• s 254C(5) , 1999 constitution as amended
• Note the absence of the word “exclusive”
• Contrast s.254C(1)
• Appeals lie to the court of appeal as of right
• Note the applicable substantive law and adjectival law – CC, PC, CPC, ACJA & EA

Territorial jurisdiction? This applies the same principles as the FHC. Although there is only one NIC the concept of territorial jurisdiction still applies. It hasconcurrent jurisdiction s 254C (5), the same interpretation applies.

COURTS MARTIAL

It’s a special court because it is designed for specific class of persons – persons subject to service law. A person who is not subject to service law cannot be subject to the jurisdiction of the court martial. Persons subject to service law are the Army, Navy and theAirforce. The police are not included, also persons who are so closely and directly related to people under service law are not subject to the jurisdiction of the court martial. Irrespective of the relationship, only persons who are subject to service law will be subject to the court martial.  Everybody who is subject to the service law is liable to be tried by the court martial while in service. If the person who is subject to service lawhas left the service and the offence that was committed is not mutiny, failure to suppress mutiny and desertion, the trial must be commenced within 3 month – so there is a limitation period of 3 months after which the action will be void. In relation to those 3 offences (mutiny, failure to suppress mutiny and desertion,) there is no bar/limitation. Also civil offences committed outside Nigeria doesn’t fall within the limitation period, s 169 AFA, you need the consent of the AG to commence and they (mutiny, failure to supress, mutiny and desertion) must be charged within 3 years. In the course of convening a court martial the authority that is empowered to convene cannot be a member of that court, such is not allowed s 134 (1) AFA. Likewise the investigator cannot be a member of that court. The court martial must abide by the rules of natural justice and fair hearing. Decisions taken by the court martial are appealable to the court of appeal. The principal law that relates to the court martial is the Armed Forces Act. The act recognises two types of offences: 1) civil offences and 2) military offences. Civil offences are offences that can be found in the laws made by the civil authorities e.g. offences contained in the criminal and penal code. Military offences are offences that relate to the military and are peculiar to them e.g. desertion, absent without leave (AWOL). They are all contained in the Armed Forces Act.

The court martial has jurisdiction and can try both civil and military offences committed by persons subject to the service law.

Before arraignment in the court martial a person subject to service law can be arrested by the police and arraigned before an ordinary court for an offence irrespective that he is a person subject to service law.

In a matter where both an ordinary court and court martial have jurisdiction (for civil offences) the person after being tried, convicted and sentenced at the court martial, can still be arraigned before a regular court but the court will take into account the punishment/ sentencing of the court martial. But if the matter was first tried by an ordinary civil court, then it cannot be subsequently tried in the court martial.

However the ordinary court cannot try matters relating to military offences (e.g. desertion) i.e. they cannot try military offences.

Double jeopardy s36(9) of the 1999 constitution.

Convening means to set up, constitution means members of the court.

Who can convene a court martial?

• President – this is also the commander in chief, chief of defence staff, service chiefs, GOC brigade Commanders e.t.c
• Convening order is mandatory and it should be in writing – s.133(4) AFA; Bakoshi v chief of naval staff. There can be an oral order to convene a court martial but it must be reduced into writing
• Can the power to convene be delegated? Yes it can be. The power to convene is delegable. See 131(4) AFA; Nigerian Air Force v James (2002) 18 NLWR pt. 798, 295 ; Nigerian Air Force v Obiosa ( 2003)

Constitution of the court martial

A court martial shall be dulyconstituted if itconsists of the president not less than 2 other officers and a waiting member

• Officer/ member subject to service law & not less than 5 years in service
• Least rank – major or equivalent rank – s.131 AFA, Okoro v Nigerian army – it is irregular to appoint a captain as a member of the court martial as it is highly unlikely that a person of equivalent rank would not be found in the service (so in the navy or air force there was bound to a person of equivalent rank)
• Presiding judge + members to be of above or of the same or equivalent rank and seniority of the accused – s133(3) (b). So they can be of the same rank but different seniority. You have to know the date of commissioning to determine the seniority of the officer.

Qualification of presiding judge S 133(5) & (6) Armed Forces Act.

Types

• General court martial – president, not less than 4 members (it could be more), a waiting member, liaison officer, a judge advocate
• Special court martial – president, not less than 2 members (it could be more), a waiting member, liaison officer, a judge advocate 

A waiting member, liaison officer, a judge advocate are not taken account into the counting of the members. They are not members for purposes of determining whether a court martial has been properly constituted or not. They are adjunct to the court martial. Obisi v Chief of Naval Staff; s.129 Armed Forces Act

The judge advocate must 1) be a commissioned officer and 2) legal practitioner of not less than 3 years post call – s.133(5) & (6) AFA. He must belong to the service, not everyone who is under the service law can be a judge advocate, he must be a commissioned officer.Judge advocates are to guide and advise the court on rules of evidence, practice and procedure.

Absence of liaison officer, waiting member, judge advocate – can it vitiate the constitution of the court martial? – No,see Obisi v Chief of Naval Staff; Nigerian Army v Dodo (2012) 18 NWLR (pt. 1331) 151. In Obisithe supreme court held that a waiting member is not in the context of s 133 a member of the panel but rather a person who stands by as a substitute for another person already appointed or nominated to be a member in case of any eventuality and his absence in the court hall since he does not sit on the panel cannot make the decision of the court null and void.

Jurisdiction

• Civil offences – S.104-114 AFA
• Military offences – S45- 103 AFA

What constitutes civil offences – s 114(2) AFA

Effect of trial first by court martial in respect of civil offences – s.170 (2) AFA

Trial first by civil court- oust jurisdiction of court martial – s 171 AFA; s.36 (9) 1999 constitution.

Jurisdiction over persons

Jurisdiction over person: person subject to service law, s 130, 168 ArmedForces Act

Read up magistrate court.

Juvenile courts

This is for juveniles. Who is a juvenile? So children (less than 14) and young persons ( above 14 but less than 17).  There are peculiarities of a juvenile court. They are shielded and not exposed to media. They are usually manned by magistrates. Sole jurisdiction is to try young offenders

There are two exceptions

• If the offence committed by the juvenile is homicide (murder) .s 8 (2) Children and young persons law
• If the offence committed by the juvenile is with other adults, that juvenile will be tried in a regular court. S 6(2) Children and young persons law

In these two instances it is no longer the subject of a juvenile court or within the jurisdiction of a juvenile court.

Main features

• S 6 (5) Children and young persons law

You can challenge the jurisdiction of the court by the nature of the offence 1) Whether its homicide or not 2) whether committed alone or with adults 3) whether the person is actually a juvenile at the time of commission of the offence

How do you determine age?

The primary evidence is the birth certificate – documentary evidence. Others include 

 Evidence of parents – oral evidence

 Medical evidence – expert evidence

R v olatunji – where there is a conflict between the evidence of the parents and medical evidence , medical evidence is preferred ; Guobadia v state; s.208 CPL; 207 & 207 ACJL

CORONERS COURT

This is a court of inquest and not a court of trial. Inquest means inquiry into what has happened and this is then preferred to the AG who will try the case.

When to hold an inquest?

• Where a person died a violent or unnatural death
• s 4 & 6 coroners law Lagos

What the coroner to determine?

• Identity of deceased
• Time and place of death
• Cause of death

Post verdict

• The AG may file a charge based on findings
• Aggrieved party may ask for review of findings of the coroner

AREA COURTS

Jurisdiction of area courts

Jurisdiction over persons

1. 15 area court law provides

(1) – any person whose parents were members of any tribe or tribes indigenous to some part of Africa and descendants of such person

(2) – any person one of whose parents was a member of a tribe indigenous to any part of Africa 

(3) – any person who consents to being tried by an Area court

Note the power of the governor or president to direct that any person or class of persons may not be subject to jurisdiction of Area Court

Jurisdiction to try offences  -  s12(2) CPC

No retroactive jurisdiction; only crimes committed from 1^st July

They have no Jurisdiction to try culpable homicide punishable with death, similarly no magistrate has Jurisdiction to try murder – capital offences

Criminal Appeals from area court I, II, II in the northern states other than the FCT go to the upper area court. Then after they go to the high court. In the FCT all criminal appeals from any area court go directly to the high court - S 1(b) Appeal from Area Court Act.

Jurisdiction of the magistrate court

Jurisdiction over offences – 6^th column of appendix A to CPC is the statute conferringjurisdiction.

Jurisdiction to punish –SENTENCE

(1) Higher sentence than the court is empowered to by statute – what to do –s.257 (1) CPC (absent in ACJA, CPL & ACJL), it can refer it to a high court for sentencing after conviction.

(2) – Consecutive sentences – s. 24(1)(2) CPC