Human Rights Law
June 28, 2018
28 Jun 2018
15 Jun 2018
Constitutional law
June 15, 2018
The Concept of Parliamentary Supremacy in Constitutional Democracy: an Example of Britain
Parliament is a group of people who are
elected to make and change the laws of a country. The Nchi Law Dictionary defines a Parliament as the supreme
legislature of a country with or without plenary powers to say what the law
shall be. The parliament is known by different name in different countries of
the world. In Nigeria it is called the National Assembly (the Federal Legislatures).
In the United States of America it is known as the Congress, in Germany it is
called the ‘Bundestay, while in Britain it is called the Parliament, consisting
of the House of Lords and Commons.
A parliament is said to be supreme if
it has the plenary power, without limitation to decide what the law shall or
shall not be. The United Kingdom still remains the most classical example of a
democracy with a sovereign parliament. The doctrine is a fundamental principle
of the United Kingdom Constitution. It makes parliament the supreme legal
authority in the United Kingdom, which can create or end any law.
Generally, the courts cannot overrule
its legislation and no parliament can pass law that future parliaments cannot
change. When used in the boarder sense, parliament is the body of elected
persons that can enact laws on any subject or matter. The power of the British
parliament is transcendent and absolute.
As a body next to non in actual
governmental power, the parliament in it power of law-making cannot be confined
for ‘persons or causes’ within her bounds. Positively, it means the British
parliament can legally enact any kind of law whatsoever, negatively, it means
that there is no person or authority or body whose legislative powers can
compete with or override the parliament.
This is unlike the exercise of
legislative power in a constitutional democracy where we have but a supreme
constitution that defines the powers, functions and limits of the law-making
body i.e the legislature, as it is in Nigeria.
However, by the legislative supremacy
of parliament is meant that there are no legal limitations on the power of
parliament to legislate. Parliament here does not refer to the two houses of
parliament individually, for neither House has authority to legislate on its
own, but to the constitutional entity known as the queen parliament; namely the
process by which a bill approved by lords and commons receives the royal assent
and thus becomes Act of parliament. Thus defined, parliament, said Dicey, has
under the English constitution, the right to make or unmake any law whatever;
and further..no person or body is recognised by the law of England as having a
right to override or set aside the legislation of parliament.
The doctrine distinguishes the United
Kingdom from those countries in which a written constitution imposes limits on
the legislature and entrusts the ordinary courts or a constitutional court to
decide whether acts of the legislature comply with the constitution. In Marbury v. Madison, the US supreme court
held that the judicial function voted in the court necessarily carried it the
task of deciding whether an Act of congress was or was not in conformity with
the constitution. In legal systems like Nigeria and the US where judicial
review of legislation is accepted, legislation may be held to be invalid on a
variety of grounds: for example, when it conflicts with the principle of
separation of powers, when it infringes human rights guaranteed by the
constitution, or has not been passed in accordance with the procedure laid down
in the constitution.
By contrast, in the United Kingdom
judges cannot entertain any question as to the competence of the legislature to
enact a law. Supposing parliament passes a law that Englishmen may be
imprisoned without trial; a judge may dislike it, and even consider it as being
against the spirit of the constitution; but he has no right or power to
question its validity or declare it unconstitutional. On the other hand, the
legislature can, by an amendment of the law, virtually override the decision of
the courts. For example, the court held in the Taft Vale case (1901) that trade
union as a body was bound to suffer for the mistakes of the officers of the
union in the conduct of the strike. But the parliament thought that the
decision could impede healthy growth of trade union movement, which they sees
it necessary for social progress. So they passed the Trade Dispute Act in 1906,
overriding the decision of the court by declaring that trade union was not
responsible for the mistake of it members.
By and large, Sir Erskine may in his
‘parliamentary supremacy practice’ (15th ed page 26) states that the
parliament may enact laws that are unjust and contrary to principles of
government, but the parliament is not control (or limited) in it discretion,
and when it errs, it errors can only be corrected by itself.
Author: Wilson Dakuni, Sudent of the Faculty of Law, Nasarawa State University, Keffi
Criminal law
June 15, 2018
Synopsis of the contending issues of jurisdiction in Nigerian Criminal Law
Criminal Law jurisdiction is the
fundamental principle of law, particularly within the province of criminal law
which demands that the trial court must not only be vested with the powers to
try an offence, but also to impose appropriate punishment. Jurisdiction
therefore refers to the competency, authority, power and legality of the court
to adjudicate over issue brought before it and to impose sanction.
The jurisdiction of the court could
also be seen as limits impose on its power to hear and determine the issue
between parties. It is the authority which a court has to decide over matters
that are litigated before it or take cognizance of matters presented in a
formal way for it decision. This jurisdiction may be territorial or
geographical and divisional jurisdiction. Jurisdiction is so fundamental to
adjudication, and should always be settled before trial, because a court
without jurisdiction is without vires to determine any issue in the case. Any
proceedings, judgement, and or order of the court without jurisdiction, becomes
an excise in futility.
In the case of Madukolo, v Nkemdilim (1962) 2 SCNLR, It was decided that before
any court of law assumes jurisdiction so as to adjudicate on issue brought
before it, the court must be competent; and a court is competent only when;
a.
The court
is properly constituted as to members and qualification of the bench; no member
is disqualified for one reason or the other.
b.
The
subject matter of the case must be within the jurisdiction of the court.
c.
The case
brought before the court must follow due process of law and upon fulfilment of
a condition precedent to exercise jurisdiction.
Contending
Issues of Jurisdiction
A number of issues were raise regarding
the application of penal code and the criminal code against the background of
Nigeria as one indivisible country. These issues are;
Jurisdictional
Issue I:
Where a person is accused of an offence committed
under the laws of the Northern region (now state).
Looking at such issue, the accused will
by virtue of such commission of the offence within the Region (now State) be
held liable. Section 4 (1) of the penal
code provides that:
Where by the provision of any law of
the state the doing of any act or the making of any omission is made an
offence, those provisions shall apply to every person who is in northern
Nigeria at the time of his doing the act or making the omission.
The provision of section 4(1) as seen
above gives jurisdiction to all courts of criminal trials within the Region
(now State) to punish every person who is found guilty of any offence within
the Region (now State) except if under any other law he is excused. It is not a
defence therefore that the person is not a native of Northern region or an
indigene of the state, or to plead any other nationality other than Nigeria. To
this connection, it should be noted that a Ghanaian, on a short visit to the a
Northern State in Nigeria will by the provision of section 4(1) of the penal
code render himself liable to punishment if he committed an offence under the
penal code.
Jurisdictional
Issue II
In a situation where the commission of
an offence i.e. the doing of an act or the making of an omission occurs partly
or substantially in one Region ( now State) and the subsequent part or elements
of the offence takes place outside the Region (now State).
In the above issue, the provision of
section 4 (2) (a) applies. Thus, the section provides that;
Where any such offence comprises
several elements and any act or events occur which, if they occurred in the
state, would constitute an offences, and any of such acts omissions or events
occur in the state, although the other acts, omission or events which if they
occurred in the state would be elements of the offence, occur elsewhere than in
the state then:
(a) If the act or omission which in the
case of an offence committed wholly in the state would be the initial element
of the offence, occurs in the state, the person who does that act or makes that
omission is guilty of an offence of the same kind and is liable to the same
punishment as if all the subsequent element of the offence occurred in the
state.
Arising from the provision of section
4(2)(a) above, it is immaterial that only the initial element or subsequent
part of the offence took place in the Region (now State) and notwithstanding
which element or part did take place in the region (now state), the offender
would still be liable or guilty of same punishment as if all the subsequent
elements or parts thereof occurred in the Region (now State). Similarly where
the initial element of an offence is committed within a Region (now State) that
State will by virtue of the aforementioned section assumed jurisdiction to
entertain the issue, even though the subsequent act that complete the offence
occurred elsewhere. for instance, Where the initial element of crime took place
in Benue while the subsequent act occurred in Nasarawa, it is immaterial that
only the initial element or subsequent part of the offence took place in either
of the state and not withstanding which element did take place, both the two
state has jurisdiction to try the matter and the offender will be held liable
or guilty of same punishment as if all the subsequent element or part thereof
occurred in either of the state.
One of those classical judicial
authorities which illustrates the jurisdiction of the trial court over the
initiation or completion of series of acts amounting to crimes in different
regions was the case of Patrick Jacob
Osoba v the Queen (1961)1 N.L.R.,1 in this case the Nigerian court assumed
jurisdiction in a case that involved fraudulent person who had written and posted
a letter from Lagos to induce London bank to put money to his use. It was held
that since the letter was posted in Nigeria its court would have jurisdiction
notwithstanding the fact that other element of the offence happen outside
Nigeria. Obviously, this case reveals that it was the initial element which
took place in Lagos that conferred jurisdiction on Lagos trial court.
It should be noted that by virtue of
section 4(4) of the penal code, the provisions of subsection (2) does not
extend to a case in which the only material event that occurs in Northern
Nigeria is the death of a person whose death is caused by an act or omission at
a place outside, and at a time when that person was outside, the state.
With reference to the above provision
where a person committed an offence of murder in Abuja and the victim dies in
Nasarawa, only the court in Abuja has jurisdiction to try the matter, in other
words the court in Nasarawa has no jurisdiction over such matter. This is so
because death and only death is immaterial.
Jurisdiction
Issue III
In an event where a person committed a
crime outside the Region (now State) which act or omission if done within the
region (now state) would have amounted to an offence and he afterwards enters the
Region (now State) or in a situation where a person, after committing a
criminal act in one region (now state) later moves to another region (now
state).
On the above issue, section 4(2)(b) of
the penal code and section 12 A (2b) of the criminal code will be invoke. Thus
section 4(2) (b) of the penal code provides that:
If that act or omission occurs
elsewhere than in northern Nigeria and the person who does that act or makes
that omission afterwards enters northern Nigeria, he is by such entry guilty of
an offence of the same kind and is liable to the same punishment as if that act
or omission had occurred in northern Nigeria and he had been in Northern
Nigeria when it occurred.
To this connection, where drinking
alcohol is an offence in Kano and Mr. A
who is an indigene of Kano, cross border to Enugu and engage in drinking
alcohol where it is not an offence in Enugu. Mr. A cannot be tried in Enugu in as much as there was no any law
prohibiting the act in Enugu and in particular, the penal code does not
applied. But where Mr. A after
drinking alcohol in Enugu he move to Kano where he exhibit certain behaviour as
a consequences of that which he drank, in this instance, Mr. A will be liable
for committing an offence of drinking in Kano. The rationale of the law here is
to prevent the consequences of intoxication within the region.
Jurisdictional
Issue IV
Another burning legal issue, is whether
or not the subsequent entry by the offender into the jurisdiction (state) was
voluntary or involuntary).
To address the above mentioned issue,
section 4 (2) (b) of the penal code and section 12 A (2) (b) of the criminal
code applies.
Also in the case of Patrick Njovens v state (1973) NSCC 257,
the trial court convicted four accused persons of abetting the commission of a
robbery and of receiving stolen property. While the 1st, 2nd
and 3nd accused were convicted of accepting gratification, and of failing to
arrest persons known to have committed offence of armed robbery, all the four
accused were convicted of harbouring known offenders. Their appeal turned
mainly on interpretation of the provision of section 4 (2) of the penal code
and the issues raised were:
a.
What is
the meaning of the term “element” as used in section 4 (2) of the penal
code-whether it could have a wider meaning or limited to actusreus only.
b.
Whether a
person can be convicted in one state for an offence which he committed in
another state.
c.
Whether
entry as used in section 4 (2) (b) of the penal code law includes forceful
entry through custody.
The supreme Court Held that:
-
The words
element in section 4(2) of the penal code is more widely conceived and should
not be limited either to an actusreusor mens in conventional criminal
jurisprudence.
-
That the
initial element referred to in the section is the initial act or omission
concerned and for the purpose of applying the section, it is necessary to look
for the initial element.
-
That if
the initial element occurs in the state even though other elements do not, the
person who does the initial act or omission is punishable by the state under
the penal code.
-
That the
entry postulated in section 4 (2) (b) is not necessarily a voluntary entry and
whether the offender be apprehended in the state or be in custody in the state,
his entry is complete for the purpose and intent of section 4 (2)(b) and he is
triable in the state under the penal code.
The obiter diction of justicescoxer J.S
thereafter follow:
We are satisfied that to construe the
word “enter” in section 4 (2) (b) of the penal code as meaning voluntary entry
world be completely ridiculous since in that circumstance no criminal will ever
enter a state when he know that such entry could make him liable by the laws of
the state...
Jurisdiction
Issue v
Where an accused person invoke a
defence against the charge and argued that he did not intent that his act or
omission should have effect in the region or state. Section 4 (3) of the penal
code provides that;
Notwithstanding
the provisions of subsection 2, it shall be a defence to the charge to prove
that the person accused did not intent that the act or omission should have
effect in the state.
In spite of the above provision, the
defence that an accused person did not intent the effect of his act or omission
to be a crime within the state is a matter subject to strict proof at his
trial. The law has subsequently made it clear that this lack of intention of
effect is however not available if what is the effect of his act or omission is
the death of the victim. In this connection, it is immaterial for the offender
to say that he did not intend that the victim should have died in Northern
region (now state).
Conclusion
To this end and from the full version
of this analysis it should be noted that if the defendant can be tried in one Region
(State) or in another for an offence, there is no breach of comity in whichever
he is tried and a trial by a competent court in one state would be a bar to a
second trial in another Region (State). Although, it is suggested that where
the punishment of certain offences under the codes are the same, state could be
granted concurrent jurisdiction so that the need to transfer cases and thereby
risk the escape of the accused person would be minimized.
Conclusively, it can be observed that
the case of Patrick Njovens has finally put to rest issues on jurisdiction as
well as issues regarding voluntary or involuntary entry of the accused person
into jurisdiction. Notwithstanding even where further doubt is to be
entertained, the provision of the police Act (sections 23 to 30 of the Act, cap
359, LFN, 1990, now cap. P19, LFN, 2004) will erase such doubt. By the
power conferred on the police officer by the act, an offender can no longer hide
or escape criminal liability in Nigeria for the reason of his absence from any
part of the country or his voluntary or in voluntary entry into any other part
of the country.
Author:
Cmr. Babayidi Maikasuwa, Undergraduate student of the Faculty of Law, Nasarawa State
University, Keffi.
