HW Emmanuel J. Samaila, Esq
I Introduction
The aim of this paper is to enlighten participants about the procedure for a criminal trial in the Customary Court. At the end of this presentation, participants will also have a better understanding of the criminal jurisdiction of the Customary Court and the laws regulating criminal trial in the Customary Court.
II The Criminal Jurisdiction of the Customary Court.
There are two classes of Customary Courts in Kaduna State. These are (a) Upper Customary Court, and (b) Customary Court.[1] In this paper, the term “Customary Court” refers to both Courts. The Customary Court has both civil[2] and criminal[3] jurisdiction. The Courts are listed among the criminal courts in Kaduna State.[4]
The nature and extent of the criminal jurisdiction of the Customary Court is often misconceived especially when viewed vis-a-vis the criminal jurisdiction of the Sharia Court. This misconception is a result of the misperception of the Court as an improved version of its precursor, the defunct Area Court, which was presided over by laymen with limited knowledge of the law.
Today, however, the Customary Court is presided over, in the majority, by legal practitioners as required by its establishment law.[5] In order to enhance the administration of criminal justice, the Administration of Criminal Justice Law 2017 (“the ACJL”) restricts the exercise of criminal jurisdiction in the Customary Court to only the Courts presided over by legal practitioners.[6]
Unlike its civil jurisdiction which is strictly limited to causes and matters under customary law, the criminal jurisdiction of the Customary Court does not include customary crimes or offences whose prosecution and adjudication would have necessitated the usage of a customary criminal procedure. The offences that the Customary Court is empowered to adjudicate upon are specified in its establishment law.[7] Section 22 of the Customary Courts Law, 2001 (as amended) provides thus:
“A Customary Court shall have jurisdiction to try and determine criminal cases and to impose such punishment thereof as are prescribed in the Second Schedule to this law, or any other law enacted by the Kaduna State House of Assembly.”
The types of offences over which the Customary Court has jurisdiction are enumerated as follows:
It is noteworthy that the ACJL[9] contains some restrictions to the criminal jurisdiction of the Customary Court. The Customary Court, despite being presided over by legal practitioners, is exclusively denied jurisdiction over the offences contained in some selected sections of the Penal Code.[10]
It is trite law that only statutory offences can be prosecuted. Section 36(12) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) hereafter referred to as “the 1999 Constitution” provides that:
“Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefor is prescribed in a written law, and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law.”
This provision, in effect, gives no recognition to customary crimes or offences, hence their non-prosecutorial and non-adjudicatory status, despite their existence in the Nigerian customary law.
III Laws Applicable to Criminal Trial in the Customary Courts
The criminal trial in the Customary Court is conducted in accordance with relevant substantive penal and procedural laws in order to ensure that justice is done between the parties, in particular, and the society, in general.
It is important to state categorically that there is neither a Customary Penal Code nor a Customary Criminal Procedure Code applicable to a criminal trial in the Customary Court as there is a Sharia Penal Code[11] and a Sharia Criminal Procedure Code[12] in the Sharia Court. The rationale for this is not farfetched: the offences triable by the Customary Court are not customary crimes but statutory offences.[13]
The laws governing criminal trial in the Customary Court include:
The 1999 Constitution (as amended). Chapter IV provides for fundamental rights which include the right to a fair hearing in a criminal proceeding.[14]
IV Basic Features of Criminal Trial Procedure in the Customary Court
It is noteworthy that in addition to the foregoing laws governing criminal trial in the Customary Court, the ACJL grants discretionary power to a Judge whenever a lacuna appears in the Law. It provides that: “Where there are no express provisions in this Law, the Court may apply any procedure that will meet the justice of the case.”[25] (Emphasis supplied)
The basic features of criminal trial procedure in the Customary Court include the following:
VII. Recommendation and Conclusion
Before concluding this presentation, it is necessary to make a recommendation for a more specific delineation of the criminal jurisdiction of Customary Court Judges to pass sentences as there is for their colleagues in the Magistrates Court. It is believed that if this is done, Customary Court Judges in Kaduna State will be more certain of the limit of their criminal jurisdiction. The resultant effect will be a more effective and efficient delivery of criminal justice in the Customary Court as well as enhancing the realization of the purpose of the ACJL as provided in its Section 4. To this end, Section 18 ACJL may be adapted and incorporated into an amendment of the Second Schedule of the Customary Courts Law 2001 (as amended) as follows:
Jurisdiction of the Customary Court Judge to Pass Sentence
(1) An Upper Customary Court Judge of the First grade may pass the following sentences:
(a) imprisonment for a term not exceeding fourteen years;
(b) fine not exceeding three hundred thousand naira;
(c) caning; and
(d) detention under Section 34 of the Penal Code.
(2) An Upper Customary Court Judge of the Second grade may pass the following sentences:
(a) imprisonment for a term not exceeding twelve years;
(b) fine not exceeding two hundred thousand naira;
(c) caning; and (d) detention under Section 34 of the Penal Code.
(3) A Principal Customary Court Judge of the First grade may pass the following sentences:
(a) imprisonment for a term not exceeding ten years;
(b) fine not exceeding one hundred thousand naira;
(c) caning; and (d) detention under Section 34 of the Penal Code.
(4) A Principal Customary Court Judge of the Second grade may pass the following sentences:
(a) imprisonment for a term not exceeding eight years;
(b) fine not exceeding seventy thousand nairas;
(c) caning; and
(d) detention under Section 34 of the Penal Code.
(5) A Senior Customary Court Judge of the First grade may pass the following sentences:
(a) imprisonment for a term not exceeding five years;
(b) fine not exceeding fifty thousand nairas;
(c) caning; and
(d) detention under Section 34 of the Penal Code.
(6) A Senior Customary Court Judge of the Second grade may pass the following sentences:
(a) imprisonment for a term not exceeding three years;
(b) fine not exceeding forty thousand naira;
(c) caning; and
(d) detention under Section 34 of the Penal Code.
HW Emmanuel J. Samaila, Esq. is a Judge of the Customary Court, Fadan Kamantan, Kaduna State and can be reached on samailaemmanuelj@gmail.com
Footnotes
[1] Customary Courts Law, 2001 (as amended) s4(2)(a))
[2] Ibid s22)
[3] Ibid s21
[4] ACJL 2017 s8(i) & (j)
[5] CCL 2001 (n2) s4(b)
[6] See the definition of “Court” under ACJL s3
[7] ACJL 2017 (n5) s15(3)
[8]CCL 2001 (n2) Second Schedule
[9] ACJL 2017 s15
[10] ibid s15(2)
[11] Sharia Penal Code Law 2002
[12] Sharia Criminal Procedure Code Law 2002, Law No. 5 of 2002
[13] 1999 Constitution s36(12). See Aoko v Fagbemi [1961] ALL NLR 400 where adultery, a customary “crime”, was held not to be an offence under the Criminal Code.
[14] s36(4)-(12)
[15] ACJL 2017 (n5) Appendix A
[16] ibid Appendix B
[17] ibid Appendix C
[18] CCL 2001 (n2) s22
[19] ibid ss26, 30, 31, 34-36, 53, 54, 59, etc
[20] ibid PART XI: ss60-70
[21] PD 2014 Rule 4(c)
[22] EA 2011 s256(3)
[23] ibid ss134-140
[24] CYPL s449
[25] ACJL 2017 (n5) s491(2)
[26] ibid s122(a)
[27] ibid ss103 & 122(a)
[28] ibid s103(2)
[29] ibid 103(3)
[30] ibid s103(5)
[31] ibid 106
[32] ibid ss103(4), 104 & 128
[33] ibid s126
[34] ibid s144
[35] ibid s281
[36] ibid ss125(8)-(9); 283, 285-286; 288
[37] ibid s282
[38] ibid ss125(7)-(8); 286(1)-(2); 361(1)(c) ACJL
[39] ibid PART XX
[40] ibid s363(4) & (5)
[41] ibid PARTS XXVIII & XXXII ACJL
[42] ibid s275
[43] ibid s282(1)-(7)
[44] ibid s282(8)-(16)
[45] ibid ss314 & 315
[46] ibid s313
[47] ibid s285
[48] ibid s286
[49] ibid s313
[50] ibid s313
[51] ibid s229(2)
[52] ibid s268
[53] ibid s315
[54] ibid 275
[55] ibid ss318-321; PART XXXIII
[56] ibid ss20, 21-23, 322 ACJL; PARTS XLI & XLIV; Penal Code Chapter III
[57]CCL 2001 (n2) s53(2) & (3); ACJL s482
Source: DNLLegalandstyle
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