Month: October 2021

Hello, readers. Good morning.

In order to prepare for exams, we would be taking a break from the publication of articles for a month.

While we are on hiatus, you can read up on past articles.

Thank you and till we see again, stay and do legal❤️.

Kikiowo

If you have been to any standard moot competition where a hypothetical scenario was staged or real-life Courts, one of the noticeable things you will observe is that the judge(s) is always writing while being addressed by the counsel.

This writing is what such a judge relies on upon giving his judgment after the final address of the counsel. A judgment is the final determination of a court of competent jurisdiction upon matters submitted to it.

The trite principle of law is that no Court in Nigeria is allowed by law to deliver an oral judgment. As such, every judgment is meant to be in writing after the final address of the Counsel which is to be delivered within ninety(90) days as enshrined in section 294 (1) of the 1999 Constitution.

This principle received judicial authority in Okoruwa & Anor v. State (1975) LPELR-2498(SC). In that case, the supreme Court per Elias CJN (as the then was) condemned – in totality – the sentencing of the accused by the High Court Judge of the Mid-Western State of Nigeria for the offence of Manslaughter, which was not evidenced in writing.

The Court held that such judgment was contrary to the then Section 245 of the Criminal Procedure Act (Cap. 43) of the 1958 Edition of the Laws of the Federation, which reads as follows:- The Judge or magistrate shall record his judgment in writing and every such judgment shall contain the point or points for determination, the decision thereon and the reasons for the decision and shall be dated and signed by the Judge or magistrate at the time of pronouncing it.

That statutory provision has been reiterated in the present section 308(1) of the Administration of Criminal Justice Act(ACJA) 2015. Also, judgment read from the note made by the judge during the trial is an oral judgment as held in Queen v Timothy Fadina (1958) 3 F.S.C. 11. Similarly, oral judgment delivered in open court by the court, and later reduced into writing in the judge’s chambers remains an oral judgment as held in State V Lopez SC.309/1967. The rationale being that the court becomes functus officio after delivering the judgment and it cannot purport to do anything to the judgment as it will amount to an irregularity. The effect of this is that the trial would be regarded as a nullity.

However, as stated in this case under consideration, it was held that a magistrate judge may give an oral judgment and record his conclusions briefly. This is because of the large number of cases that the magistrate has to handle, often by summary procedure. This principle has been statutorily provided for in S.308(2) of the ACJA.

Nonetheless, this exception in section 308(2) ACJA does not conflict with the Constitution because the constitutional requirement that every judgment is in writing under section 294(1) of the Constitution applies only to every court established under the constitution. The Magistrate court is not established under the constitution as it is not listed under section 6(5) of the 1999 Constitution

In conclusion, the principle of law is that oral judgment is not allowed in law. One of the significances of written judgment is that it aids the smooth administration of law reportage.

Generally, for there to be the offence of stealing, the subject matter must have an owner. As such, ownership is an important element the prosecution has to prove beyond reasonable doubt before the accused can be convicted for the offence of stealing.

Unfortunately, neither the Criminal code nor the Penal code mentions “ownership”. The ‘word’ has generally be said to have been included by the Courts. It has been settled through judicial pronouncements that anything capable of being stolen must have an owner

Niki Tobi JCA (as he then was) in Onagoruwa v. State (1993) 7 NWLR (Pt. 303), 86 stated the importance of ownership in the offence of stealing, where the learned jurist opined that: “ownership is a most vital and indispensable essential or ingredient of the offence of stealing. It is the ownership upon which all other essentials or ingredients stand. It is the baseline of the offence of stealing”

The consequence of the aforementioned provision is that property without an owner cannot be said to have been stolen. Putting it in context, if someone sees money on the floor on an empty road and takes it? Can he be said to have stolen it? Morally, yes. But legally, no.

The concept of ownerless property has been statutorily provided for in section 383(5) of the Criminal Code which states that: when a thing converted has been lost by the owner and found by the person who converts it, the conversion is not deemed to be fraudulent if at the time of making the conversion, the person taking or converting the thing does not know who the owner is and believes on a reasonable ground that the owner cannot be found. There has been no Nigerian judicial authority on this statutory provision yet.

The operative phrase here is reasonable ground that the owner cannot be found. What will amount to this ground can only be determined from the fact of each case. Hence, it can reasonably be inferred that a person who picks up a ₦1000 in front of a lecturer’s office, a few minutes after the lecturer entered his office, with the intention of converting it, may be said to have stolen it since there is reasonable ground that the money might belong to the lecturer. The same decision is likely not to be reached if the money or any other lost object is found in an empty road, bush, lecture theaters, or isolated locations.

In R v Vega, (1938) 4 W.A.C.A, the concept of ownerless property came up for judicial determination. In that case, the court held that the accused person, who took some corrugated sheets which have been lying idle for a long time and which the accused believed to have been abandoned, was not guilty of theft (stealing).

In conclusion, the principle of law under the Nigerian criminal law jurisprudence is that the finder of lost property cannot be legally considered to have stolen the property. Well, morality will agree otherwise. But this shouldn’t be a concern since morality does not win in Court.

Question: If you happen to see 10Million Naira inside the bush, being a responsible citizen, will you report and return it to the nearest police station?

LSP couldn’t release an article last week because my phone spoilt. I sincerely apologise for the inconvenience. Thank you. See you next week🤗