Criminal Proceedings, Charges and Bails Under Nigerian Law

The Constitution of The Federal Republic of Nigeria is the legal benchmark for the administration of criminal justice in Nigeria. Other supporting laws like the Administration of Criminal Justice Act provide for the procedures to be applied & followed in criminal proceedings.

This article will be focused on the process of criminal proceedings in Nigeria and how they are commenced. Further focus will be on the topics of :-

– Who has the power to commence criminal proceedings in Nigeria.

– The limits if any on the powers to commence criminal proceedings under Nigerian law.

– How criminal proceedings can be terminated before judgment.

Who has the power to commence criminal proceedings in Nigeria?

Criminal proceedings in Nigeria can be commenced by :-

1. The Attorneys-General of the Federation & the states of Nigeria

2. The Nigerian Police Force

3. Private Persons

4. Special Prosecutors e.g. the Economic & Financial Crimes Commission (EFCC).

What are the limits of these powers to commence criminal proceedings?

The Attorney-General has virtually unlimited powers to commence and terminate criminal proceedings by way of a withdrawal or discontinuance (nolle prosequi). It should be noted however that where a nolle prosequi is entered, an accused person can be charged again without creating a situation of double jeopardy.

The power of an Attorney-General to discontinue a matter can be done orally by him or writing through an officer in his chambers. 

The closest thing to a limit on the powers of the AG is the constitutional requirement to have regard to public interest, the interest of justice and the need to prevent the abuse of legal process, which includes the requirement to obtain the consent of a High Court Judge before preferring a charge. 

The powers of the police are also limited up to the extent where criminal proceedings can be taken over by the Attorney-General. The police may withdraw charges against a suspect in certain instances, the effect will depend on the stage of the trial.

Private persons can institute criminal proceedings, but usually only under the approved list of an Attorney-General & in some jurisdictions, with a limitation to offences of perjury and non-indictable offences.

How are criminal proceedings commenced under Nigerian law?

Criminal proceedings are commenced through various means under various jurisdictions in the country, but the main methods of commencing criminal proceedings are :-

1. Charges 

2. Complaints 

3. First Information Reports 

Charges Under Nigerian Law

Charges are the most common means of commencing a criminal suit in Nigeria and usually consist of documentation detailing the nature of the offence or offences alleged and the details of the persons being accused of committing those offences. 

This article will be focused on charges, especially on the topics of :-

– The requirements of a valid charge

– What makes a charge defective

– The rules of drafting charges

– The amendment of charges 

What are the requirements for a charge to be declared valid?

A valid charge must have :-

– Certainty of persons accused

– The particulars of the offences alleged

– Certainty of a unity of purpose where parties are accused jointly

When will a charge be deemed defective or invalid?

A charge is defective when :-

– It does not accurately identify the accused

– It does not give particulars of an offence alleged

– It alleges an offence not known to law

– It alleges an offence beyond the jurisdiction of the court before which it is brought

What are the rules of drafting?

The major rules of drafting are :-

1. The rule against ambiguity – which requires clarity in the language contained in a charge

2. The rule against duplicity – this is to prevent unnecessary repetitions in a charge

3. The rule against misjoinder of offences 

4. The rule against misjoinder of offenders

Are there any exceptions to the rules of drafting?

Yes there are. The rule against duplicity in particular has the following exceptions :-

1. Offences defined in the alternative

2. All acts done as a manifestation of an intention to commit treason

3. The use of statutory forms

4. Identical offences in a single transaction

For the rule against the misjoinder of offenders, the exceptions are :-

1. Where more than 1 person are accused of the same offence

2. Where more than 1 person commits different offences in the course of the same transaction

3. Where 1 person is accused of committing an offence and another of abetting or being an accessory

4. Multiple offenders committing a number of offences in proximity and at the same time in the course of a bigger event :- offences of attempted murder and robbery during a riot.

For the rule against the misjoinder of offences, the exceptions are :-

1. Different offences committed in the course of the same transaction

2. A set of acts that constitute offences under different laws and charged on the same charge sheet

3. Charging an accused alternatively where an act does not neatly fit into an alleged offence

4. The commissioning of an offence on several occasions

Can charges be amended?

Yes, they can. A charge can be amended before an accused makes a plea or if it is defective or even before the judgment stage of a criminal suit.

A defective charge can be amended if :-

– The defect is curable

– The amendment is not intended to just bring an alleged offence within the court’s jurisdiction.

– The amendment will not cause injustice

– The defect is not frivolous

Bail Under Nigerian Law 

The practice of Bail is in line with the rights afforded to an accused by virtue of the Nigerian Constitution (as amended), which states that an accused can still have an exercisable right to his freedom pending the determination of a criminal suit for which he can be punished with a term of imprisonment.

It should be understood that Bail under Nigerian law can be either as of right or with the permission of a court . Hence this article will be focused on the topics of :-

– The types of Bail available under Nigerian law

– The necessary considerations for the grant of Bail

– The grounds for the revocation of Bail under Nigerian law

What are the types of Bail available under Nigerian law?

The following types of Bail are available in Nigeria :-

1. Police/Administrative Bail 

2. Bail pending the trial of an accused

3. Bail pending the appeal against a trial court’s decision

What are the conditions for police bail?

The police may grant bail to a person arrested without a warrant for a minor offence such as a misdemeanor . The police can also grant bail for offences punishable with a fine or less than an imprisonment term of 3 years. 

It should be also understood that the failure to meet the conditions of bail resulting in continuous detention is not a violation of a suspect’s constitutional right. 

What are the limitations on the right to bail if any?

The right to bail will be limited where a person is accused of an offence punishable by death except with cogent and very compelling reasons exist to grant bail.

How are bail applications carried out?

Bail applications are carried out either by orally for police bail and at the summary court level or by written applications/motions on notice. 

What are the major considerations to be factored in especially by a court when dealing with an application for bail?

The most important factors to consider when dealing with a bail application are :-

1. Whether the accused will appear for his trial

2. The nature of the offence and punishment prescribed

3. Possibility of the accused interfering with official investigations of the offences alleged

4. Prevalence of the offence

5. The protection of the accused

6. Criminal records of the accused

7. The health condition of the accused

What can an accused do if his bail application is granted?

Where a bail application is refused by a court, a second application should be made to a higher court thought this would not be classified as an appeal.

What are the conditions for granting Bail pending appeal?

The applicant must :-

– File an appeal

– Comply with conditions imposed by the court

– Not have a breached bail granted during trial

– Show exceptional circumstances e.g. where the duration of the appeal might outlast the duration of the possible sentence or a serious health condition of the accused. 

What are the grounds for the revocation of Bail?

The bail of an accused can be revoked and a bench warrant of arrest issued where :-

– The accused fails to make a court appearance without good cause or violates his bail conditions

– The bail surety of the accused applies to be discharged from his bond.