THE RIGHT OF AN ACCUSED PERSON UNDER THE NIGERIAN LEGAL SYSTEM.

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CHAPTER ONE

INTRODUCTION

1.1 Background of the Study

The constitution provides safeguards for hearing in criminal cases. These safeguards are in an effort to give constitutional sanctity to the rules developed by common law as the basic pre-requisites for a fair hearing. It is necessary to state that in the strict constitutional sense given in Section 6 of the Constitution, only a court can sentence and convict an offender for a crime. A tribunal which is not a court within the meaning of Section 6 of the Constitution cannot sentence and sentence a criminal to a criminal, no matter how free and fair. A reference to a “court or tribunal” in the provisions of section 36 of the Constitution which entitles a person accused of a criminal offense to be entitled to a fair hearing in public within a reasonable time by a court or tribunal (section 36 (4)) with this qualification[1]. Read. It is important to state that constitutional safeguards for a criminal trial cannot be denied or denied the interests of public safety, public order, public health, and public morality, in a period of emergency equally common in normal times.

Based on the adoption of the Universal Declaration of Human Rights and the inclusion of fundamental human rights in our Constitution, fundamental human rights have been created and should be respected by all men.

Nigeria Society. Unfortunately, however, many people in our society face untold hardship day in and day out because they are denied their basic rights, which would normally enforce the Constitution of Nigeria even if they are doubtful but because they are entitled to these rights Are unaware of because they rarely claim or never claim them. However, those who are unhappy with these responsibilities are unable to do their work properly. In this regard, the project will discuss some of the rights and key rights of the suspects and how it can be known, respected and enforced by the people concerned.

When a suspect is described as being correct, he is admitted to be entitled to what he claims under the law. By virtue of man’s creation, he has certain rights that are common to all other men. Most of the fundamental rights are in a sense natural rights that are vested in every person and for which he is entitled to provide facilities for his enjoyment without any obligation or duty from the government.

Furthermore, all fundamental rights are in the final analysis rights, which impose limitations on the executive, legislative or judicial powers of government and are easily justified accordingly. Fundamental human rights attract universal humanity that men enjoy and share with their fellow men whether it is a suspect or a freeman, the writing of this project is informed in its entirety.

Protection of the right against torture is an intrinsically acclaimed human right that cannot be humiliated in all situations, including in the event of an emergency. Many international instruments have guaranteed the right against tyranny. The United Nations adopted the 1948[2] Universal Declaration of Human Rights after the havoc and human rights abuses during World War II. Article 5 of the Declaration asserts the right of every human being against tyranny. Subsequently, many other international instruments on human rights protection were used. The Convention against Torture and Other Cruelty, Inhuman or Degrading Treatment or Punishment (CAT)[3] is the only international instrument devoted entirely to the prohibition of torture and other forms of cruel and inhuman and degrading treatment.

In addition, many regional instruments such as the African Charter on Human and People’s prohibition prohibit atrocities. These international instruments demand that States parties ensure that they implement instruments in their various countries.

Like most countries in Nigeria, the law prohibits torture and provides for the prevention of victims of torture. The Nigerian Constitution which is the supreme law of the land has guaranteed the right of every person against tyranny and inhuman and degrading treatment of all kinds.

1.2 Statement of the Problem

Despite being a fundamental declaration of fundamental human rights and Chapter IV of the Nigerian Constitution in Fundamental Human Rights, practicality is not correct due to the current state of illegal treatment of suspects in the country.

It is illegal to treat a suspect in any way as they are being treated as suspects. This clearly shows that the judiciary is aware of the rights of an accused person and is pure and cannot be taken unlawfully in this country. The violation of these rights has been very fierce in Nigeria. The question to be asked in this research work are:

1. What is the principle of rule of law, through which the rights of the accused can be respected and recognized by everyone?

2. What is the best way to seek redress in the court of law whenever their rights are being infringed upon?

3. What is a fundamental human right?

1.3 Objective of the Study

The main aim and objective are to analyze the right of an accused person under the Nigerian legal system and the specific objectives are:

i. To study the relevance of the rule of law as a vital instrument for the protection and enjoyment of Fundamental Human rights by the people most especially an accused person, who is the main center of this work.

ii. To know the principle of the rule of law, through which the rights of the accused can be respected and recognized by everyone.

iii. To enable the people to know the best way to seek redress in the court of law whenever their rights are being infringed upon.

1.4Scope and Limitation

The scope of this study is centered on the analysis of the right of an accused person under the Nigerian legal system, this research is restricted to the Nigerian law, human and fundamental rights and incidence of right abused in Nigeria.And the issue of financial constraint limits the frequency of investigation towards/from the institution towards collecting the necessary information related to the study. And lack of time- researchers will engage in this study together with other academic tasks. This will result in a reduction in time devoted to research work.

1.5 Significance of the Study

Ignorance, as we all know, is a disease, and has been earlier said, Nigerians generallyare not well abreast of their legal rights even though it has been boldly written and spelled out in the Constitution of the country. But because every disease has a cure, the cure for the lack of awareness of these rights is the major purpose of this work particularly the right of an accused as stipulated in section 36 of the Constitution of the Federal Republic of Nigeria. Which are: Right to silence, Right to be presumed innocent until proved guilty, Right to an interpreter, Right to informed properly the nature and detail of the charge among others

1.6 Research Methodology

The method that will be used to carry out this work is descriptive and not analytical.Major primary and secondary sources of law would be considered for the properappraisal of this topic. The primary sources include the Constitution of the Federal

The Republic of Nigeria, mainly Chapter IV and Section 35 and 36; the CriminalProcedure Code; the Criminal Procedure Act; and the Child Rights Act. Thesecondary source includes the International Articles on pro-bono services, journal and news posts from the mass media News.

1.7 Literature Review

JideBodede[4] stated that the right to a fair trial within a reasonable time is the fundamental human right of every accused person guaranteed in the Constitution. He emphasizes the importance of the right to a fair trial as there is an accused person in particular for all.

On the right of an accused person to limit his work in Nigeria, Adesiyan G.O[5] states that while the police have the legal right to interrogate a suspect, the force used to answer any question Use is illegal and judges rule. As a result of the discussion.

Ibrahim Imam[6] See Constitutional Protection for the Rights of an Accused Person for a Fair Hearing in Nigerian Criminal Justice writes extensively on the duty of a lawyer to an accused person in criminal proceedings to be fully devoted to his work Should, whatever he may think. Fee.

Onawola[7] explained that where the bail condition is violated if the accused is found to be supported with clear evidence to interfere with witnesses or otherwise obstruct the cause of justice, the bail will be revoked.

Audi Jummai[8] said that if we cannot enforce its violations (ubi jus ibiremedymim) then the human rights enshrined in the constitution would be void.

This unit came into existence in Nigeria in 1914 after the amalgamation of Northern and Southern Protectors.[9] Lord Lugard was appointed by the British colonial administration as Governor-General.[10]Nigeria remained under colonial administration until 1 October 1960 when Nigeria gained its independence. Nigeria became a republic in 1963.[11] Nigeria saw its first military coup in 1966, resulting in the deaths of many leaders from the northern part of the country.[12] Sir AbubakarTawawaBaliva was the first Prime Minister and Sir Ahmed Bello was the head of the Northern Territory. All were killed.

This resulted in a counter-coup by soldiers of mostly Northern descent.[13] The incident was caused by a bloody civil war that lasted for 30 months. Nigeria received its first republic in 1979. In 1983, the army again intervened under the leadership of Brig. General Buhari, Buhari’s administration was short-lived as it was ruled out by another coup led by General Babangida.[14] Due to pressure from both home and abroad, Babangida was handed over to an interim government under Shoenikan which was ousted by General Abacha. Abacha died under mysterious circumstances and General Abulsalam captured[15]. Abdulsalam handed over the democratically elected government led by Jean. Since 1999, Obasanjo has been under a democratic government in Nigeria.[16]

Nigeria had experienced many constitutional changes since its independence.

Whenever the military takeover the government they repeal the constitution and introduce a new constitution when they want to hand over power to a civilian government. Nigeria has had three formations since its independence. It began with the 1963 Republican Constitution, then the 1979 Constitution and finally the 1999 Constitution. Although a new constitution was drafted in 1989, it did not see the light of day.

The Nigerian Constitution is the supreme law of the land. It is the law of the mother from where all the laws of Nigeria derive their legitimacy. According to the Constitution, its provisions are supreme and any law which is against the Constitution shall be void to the extent of its inconsistency[17]. The constitution provided for the creation of the three arms of the government which are the legislature, executive and judiciary. The legislature is the hand of the government which is responsible for making laws. At the national level, the Senate and the House of Representatives make laws for the entire country. The Senate is the upper house which is made up of 109 senators.[18] The Senate is headed by the President of the Senate assisted by the Deputy Senate President. In the absence of the Senate President, the Deputy Senate President presides over the house.[19] The lower houses have a House of Representatives with 360 members. The house of the representative is presided over by the Speaker of the House who is a member of the House who is elected by the members.[20] The Deputy Chairman assists the speaker in the discharge of his duties. In the absence of the Speaker, the Deputy Chairman presides over the House. At the state level, the State Houses of Legislative Assembly has the right to enact laws for the good governance of their respective states. The Rajya Sabha is headed by the Speaker of the House. The Deputy Chairman assists the speaker in the discharge of his duties.[21]

The executive branch of government is responsible for the implementation of government policies. The President is the Chief Executive and the number one citizen in the country. The Vice-President assists the President and if the President dies, impeachment is brought or is unable to perform his duties, the Vice-President shall be appointed as the President.[22]

At the state levels, the governor is the chief executive officer of the state and is the chief security officer of the state. As in the case of the President, the Lieutenant Governor shall be appointed Governor in case of death, impeachment or inability by the Governor to discharge his duties.[23]

The judiciary is the arm of the government which is unhappy with the responsibility of interpreting the laws.[24] The judicial arm of government is an important hand of government when the issue of protection of human rights and dignity of human beings is brought up. Question. This is because the judiciary ensures that the executive and its agents respect the rule of law and do not mistreat citizens. In the hierarchy, the Supreme Court is the highest court in Nigeria with unlimited jurisdiction.[25] Supreme Court cases have both original and appellate jurisdiction. The Supreme Court has original jurisdiction over cases or disputes between states or states or the federal government.[26] It has appellate jurisdiction in relation to appeals from the court of appeals.[27]

The Chief Justice of the Federation is the head of the Supreme Court and the leader of the judicial arm of the government.[28]The Court of Appeal is the next to the Supreme Court. The Court of Appeal appeals to the Federal High Court, the State High Court, the Sharia Court of Appeal, the Customary Court of Appeal, and the National Industrial Court. The President of the Court of Appeal presides over the Court of Appeal.[29] Federal High Courts, State High Courts, Shariat Courts of Appeal, Customary Courts of Appeal and National Industrial Court are also the best courts of record.[30] Federal High Court has exclusive jurisdiction on many issues related to the federal government such as currency, sea, etc.[31] State High Courts are courts with unlimited jurisdiction and they appeal to magistrate courts and Sharia or customary courts. But entertain cases which have no jurisdiction of appeal in Sharia and customary courts[32]

The appeal has the authority that it can entertain appeals from lower-level Sharia courts in matters of Islamic personal law such as marriage, divorce, custody, inheritance and waqf.[33] The Customs Court of Appeal appeals to customary courts at the lower level.[34] At the lower level, the Magistrate Court, Sharia Court, and Customary Court are the first jurisdictions that entertain cases of lawsuits.

Regarding the levels of government, there are three levels of government in Nigeria.

These are federal, state and local government. The federal government is the government at the federal level. Laws passed by the legislature at the central level are referred to as Acts.

During military rule, laws made by the military at the federal level are called Decree[35]. The state government falls next to the federal government. There are 36 states with Abuja as the Federation Capital Territory.[36] Laws made by the state government are referred to as laws, while during military rule, laws at the state level are called edits. The third level of government is known as the local government. There are 774 local governments in Nigeria. The laws made by the local government are referred to as sub-rule.[37]

With regard to the sources of Nigerian laws, the following are the sources ofNigerian law;

a. Local law- The first source of Nigerian law is local law created by the Nigerian legislature. The main body vested with the power to make laws for the good governance of Nigeria is the legislative arm of the government. The Constitution vests the power to make laws for the formation of the Senate, House of Representatives and the Houses of the States of the Assembly.[38]

Apart from the legislature, courts are said to be a source of law through the case. Usually, the duty of the courts is to interpret the laws and not make laws, because the decisions of superior courts are binding on the lower courts, that the rule of decisive judgment through judicial activism is a source of law.[39] Similarly, the representative Based on the principle of law, some executive bodies become law for the purpose of conducting the activities of their employees or members can go. This situation is known as delegated legislation. For example, the Chief Justice of a state may make rules of courts, requiring all courts of the state to serve as a form of subsidiary legislation. [40]

B. Islamic law- Islamic law is another important source of Nigerian law. Even before the arrival of the British colonial administration. Islamic law has been in existence and has been applied by Nigerians as the source of their law, most notably in the KanimBorno and Sokoto Caliphate.[41] Under Islamic law, the Glorious Quran ‟a and the Prophet’s Traditions (PBUH) Primary The source is the law. Ijma (consensus of Muslim jurists) and qiyas (occasional cuts) are secondary sources. While Etihasan, Uruf and Adat (customs) are auxiliary sources ..[42] To subdue the application of Islamic law and subject it to re-trial trials, the colonial administration referred to Islamic law as customary law. This was followed by objections by some highly respected judges in Nigeria. For example

Alkamawa v Bello, Comasi JSC stated that Islamic law is not the same as customary law as it does not belong to any particular tribe. It is more universal and rigid than the common law of English.[43]

C. Customary law: Customary law is a law that arises from the customs and traditions of the people. Osborne CJ Celebrated in Lewis v Bankole

“….Indeed, one of the most distinctive features of West African descent in my mind is its flexibility; It appears to have always been subject to the objectives of the campaign, and it shows unquestioned adaptability to altered circumstances without completely losing its individualist characteristics. “[44]

Similarly, in OyivunmiAjgungbade III v Ogunsen, Obeski JSC observed that customary law is

“The biological and living laws of all the indigenous people of Nigeria regulate their lives and transactions. It is organic in that it is not stable. It is the regulator that controls the life and transactions of the community. It is said that customs are a mirror of people’s culture. “[45]

Long before the arrival of the colonial administration, many parts of Nigeria apply customary laws day by day for their daily tasks.  When the colonial administration came, they did not do away with local customs and traditions altogether but rather said that applied before any practice, it should not be for natural justice, equity and good conscience. There is no standard for measuring hatred for natural justice equity and good conscience.

It depends on what the judge feels. This customary law, therefore, makes it highly uncertain because at any time judges may decide that customary natural justice is contrary to equity and good conscience.

It is important to mention that there are certain characteristics of customs in Nigeria which are an accepted way of life of the people. It is a mirror of accepted use, it is universal and flexible. Where a claimant wishes to rely on a particular custom, he is expected to show the court that the particular custom has met all the requirements mentioned above.[46]

D. Acquired English law: Acquired English law is equally an important source of Nigerian law. The English law obtained includes the common law of England, the principle of equality and the law of general application.

Even after independence, English law remains a legitimate source of Nigerian law. Section 45 of the Interpretation Act clearly states;

“Subject to the provisions of this section and so far other provisions have been made with no other federal law, the common law of England, and the principles of equity, together with the statute of general application applicable in England in 1 January., The day of 1990, shall apply in Lagos and so far as they relate to any matter within the special legislative capacity of the federal legislature, elsewhere in the Federation. Will Goo. “

In addition, the laws of the Eastern,[47] Northern,[48] and Western Region[49] High Courts have been provided for the application of English law in Nigeria.

The common law of England is a law that applies in four areas

The United Kingdom includes England, Scotland, Ireland and Wales. The principles of equity came due to the rigor and rigor of the common law.[50] Under common law, for every case, a special writ was used and when there is a new issue that is not covered by the writ, the victim is not an aid to the court.

Due to the many complaints filed before the king, he dedicated the chancellor to attend to such complaints and find a remedy for the victims. Chancery gradually developed into equity courts.[51] At one point the judges of the Common Law Courts felt threatened by the interference of equity and resulted in a rivalry between the two courts. Through the Judiciary Act, King James II settled the conflict by adding the common law and equity courts to a court and whenever a conflict between common law and equity, equity prevailed.[52] The law of general application constitutes all laws that apply in England on or before January 1, 1900. In Young v. Abina, the West African Court of Appeals[53] stated that it would still apply in Nigeria, even if it was repealed or amended in England after January 1, 1900. v The Ejidike50 Court of Appeal considered that it would be ridiculous for Nigerian Courts to continue to enforce the law of England, even if that law did not apply in England. Therefore a statute of general application only applies in Nigeria if it remains a valid and enforceable law in England.

1.8 Synopsis of the Chapters

The chapter one of this study will contain the background of the study, statement of the research problem, aim and objectives of the study, scope and limitation, significance of the study, research methodology, literature review and synopsis of all chapters and chapter two will the deal withfundamental rights provisions on criminal justice, can the fundamental right to fair hearing be waived and limitations of constitutional rights on criminal justice, historical development of human right in Nigeria and distinction between human right andfundamental human right. The chapter three of this research will contain the concept of rights of an accused person, the right of an accused under constitution, criminal procedure code and criminal procedure act the juvenile crime and the child right act and chapter four of this research how to safeguard for the right of an accused person, and will be analyzing different citizen that their right has been deprived of in Nigeria, the awaiting trial of an inmate as an accusedperson and the role of legal aid counsel, bar association whereas the chapter five will contain the summary of finding, recommendation, contribution to knowledge, suggested area for further studies and conclusion.


[1]  B.O Nwabueze, The Presidential Constitution of Nigeria (sweet & Maxwell) pg 411.

[2]Adopted and Proclaimed by the General Assembly on the 10th of December 1948 by Resolution 217 (111).

[3]Adopted and opened for signature, ratification and accession by General Assembly resolution 39/46 of 10

December 1984 entry into force 26 June 1987

[4]Criminal Evidence in Nigeria, (Florence and Lambard, Nig. Ltd publisher 2008 )p.89

[5]An Accused Person’s Rights in Nigeria Criminal Law, (Heinemann Educational Books Nigeria

1996) p.67

[6]Constitutional Safeguard of the Accused Person Rights to Fair Trial in the Nigeria Criminal Law,

(2008) The Legal Issues, a publication of Legal Aid Club. p. 273

Means of Enforcing Human Rights, Accountability and Democracy in Nigeria (1999) ABULJ, 6

p.150

[7]Bail and Bail pending – An appraisal (2007) UILSSJ 12 P.5

[8]Means of Enforcing Human Rights, Accountability and Democracy in Nigeria (1999) ABULJ, 6

p.150

[9]Oduwobi, T., From Conquest to Independence: The Nigerian Colonial Experience, (2011), HAOL, Núm. 25,

P19

[10]Ibid

[11]Ibid

[12]MUSE, S.F., Military Rule: Consequences on Public Participation in Nigeria, (2014), Projournal Of

Humanities And Social Science, vol. 2 (3), P2.

[13]Ibid

[14]Adeakin, I., Military Prerogatives, Authoritarianism and the Prospects for Democratic Consolidation in

Nigeria, http://www.cpsa-acsp.ca/papers-2012/Adeakin.pdf viewed 25/2/2015.

[15]Dibua, J.I., Modernization and the Crisis of Development in Africa: The Nigerian Experience, (USA:

Ashgate, 1988), at 129.

[16]Ibid

[17]Section 1(3) of the 1999 Constitution

[18]Section 48 of the 1999 Constitution

[19]Section 5(1)(a) of the 1999 Constitution

[20]Section 49 of the 1999 Constitution

[21]Section 5(1)(b) of the 1999 Constitution

[22]Section 5(1)(a) 1999 Constitution

[23]Section 5(2) 1999 Constitution

[24]Section 6(1) 1999 Constitution

[25]Section 230 1999 Constitution

[26]Section 239 1999 Constitution

[27]Section 233 1999 Constitution

[28]Section 230 1999 Constitution

[29]Section 237 1999 Constitution

[30]See section 6 1999 Constitution

[31]See Sections 249-254 1999 Constitution

[32]See Sections 270-274 1999 Constitution

[33]See Sections 275-279 1999 Constitution

[34]See Sections 280-284 1999 Constitution

[35]Tobi, N., Sources of Nigerian Law, (Lagos: M.J. Professional Publishers Ltd, 1996), P2.

[36]Section 3 1999 Constitution

[37]Section 3(6) of the 1999 Constitution

[38]See section 4 1999 Constitution

[39]Tobi, N., Op. Cit.

[40]Ibid

[41]Ostien P., and Dekker, A., “Sharia and National Law in Nigeria”, in Sharia and National Law: Comparing the

Legal Systems of Twelve Islamic Countries, Otto J.M. editor, (Egypt: Leiden University Press, 2010), at 585.

[42]Doi, A., Sharia the Islamic Law, (Kaduna: Tangaza, 1984), 80.

[43](1998) 8 NWLR (pt 561) 173

[44](1908) 1NLR 81

[45]Saussine, A.P. and Bernard, J., The Character of Customary Law: Legal, Historical and Philosophical

Perspectives, (USA: Cambridge University Press, 2007), at 1.

[46]Section 14(1) Evidence Act

[47]sections 14 and 20 of the High Court Law, Eastern Region No. 27 of 1955

[48]Section 28 and 28a of the High Court Law, Northern Region No. 8 1955.

[49]Section 4 and 5 of the Laws of England (Application) Law, Western Region Cap 60, Laws of Western Region

[50]Park, A.E.W., Sources of Nigerian Law, (Lagos: African Universities Press, 1963), P6.

[51]Ibid

[52]Ibid

[53](1940) 6 WACA 180

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