Historical perspective
The criminal procedure ordinance, according to Aguda,106 which later became the Criminal
Procedure Act, was enacted in 1945 as an attempt to produce a single comprehensive statute
containing the whole of the law governing criminal procedure both in the Supreme Court of Nigeria
and in the Magistrates‟ courts. The Act was later made applicable to the High Courts and
magistrates‟ courts of the Southern State. Its subject matter almost entirely as it concerned
with these states has effect, in the main, as a piece of state legislation. Although included in these
states‟ laws respectively were a Federal provision that were contained in Part 45, dealing with
Deportation and Part 52, which deals with Service of Process throughout Nigeria. These Parts
apply in six Northern states (now 19 and FCT) under the Criminal Procedure Code.
Furthermore, Aguda observed that in the Western Region then, the Act was omitted from the
combined edition of the Laws of Western Nigeria 1958 as it was then supposed to be replaced. It
subsequently continued in force in those States in spite of this. The CPA‟s states provision were
included in the laws of Eastern Nigeria 1963, under the title of Criminal Procedure Law and this
version were mentioned to by in Aguda‟s commentary on the Act (Ss. 108-672) as “E.S. Laws.”
The Federal provisions of sections 64A, 213(3) and (4) and 375(2), Part 45, section 48A and Part
52 remained in force in the southern states by virtue of their inclusion in the Federal Act. As the
CPA was to the Southern states so also was the CPC to the Northern states.
Criticisms of the Former CPA
The process of familiarizing the Act as originally enacted to the new constitutional position was
carried out by successive Orders made under the authority of the constitutional instruments, but this
has led to certain inelegancies of wording. Hence in R. v. Zik‟s Press Ltd,107 the now repealed Act
was described as “rambling, complicated and in many respect ill-drafted piece of legislation” by
the West African Court of Appeal (WACA). There was no doubt that its drafting
gave rise to a number of misgivings. Its gravest defects perhaps were the way it was arranged
without cross-references. It particularly had two or more widely separated sections. For instance
Aguda said that sections 17-20108 and section 30, which the subject was dealt with much more
fully in section 118-143 contained in Chapter 2. Over again, the provisions of sections 77 and
275 for the institution of proceedings and the holding of trials appear to be complete in
themselves, but are inconspicuously adapted by section 340(2)(b). Further in this was the
provision on the power to bind a person over after a trial dealt with in sections 250, 300, 309 and
435, and the preventive power of binding over in sections 35-52 and again in sections 405-412.
As would eventually be expected, the procedure that was laid in, the CPA was based on the
English Law. For instance, some of its sections were derived directly from the English statutes in
force in 1945; other provisions had straightaway derivation from the laws of the commonwealth
territories. These and many others were the reasons that led to a number of such duplications and
irregularities of expression in that Act. Also, it was pointed that there was no consideration of the
table showing that the derivation of every section was based on an English statute which has
received judicial interpretation, or that a reference has been made to such interpretation.
Consequently and as would be expected, the cries for reform of CPA and CPC find their answers
in the ACJA in 2015.
Notwithstanding, the CPA had twelve Chapters and fifty-two parts, was set in this format:
Cap. Sections Titles
1. 1-55Preliminary, Arrests, Bail and Preventive Justice
2. 56-274Provisions in General relating to all Criminal Trials and Inquiries
3. 275-276 Trials Generally
4. 310-333 Preliminary Inquiry by a Magistrate into Indictable Offence
5. 334-365 Proceedings after an Accused has been Committed by Magistrate HC for Trial
6. 366-400 Provisions relating to Sentences of Death, Imprisonment, Whipping and Fine
7. 401-412 Detention during the Pleasure of the President and Deportation
8. 413-440 Juvenile Offenders and Probation
9. 441-458A Assessors and Inquiries by Direction of the Attorney General
10. 459-476 Miscellaneous
11. 477-488 Service and Execution throughout Nigeria of Process of Courts of all States.
From the above, it can as well be said of the ACJA like its predecessors, is a borrowed law from
Administration of Criminal Justice Law (ACJL) 2011 of Lagos State. Thus, some of ACJA‟s
provisions are confusing like which authority can sign a search warrant between, a justice of
peace; a magistrates or a judge? For instance Sections 36 (1) and 41 provide that:
A warrant of arrest issued under this Act or, unless the contrary is expressly
provided under any other law, shall bear the date of the day of issue, shall
contain all necessary particulars and shall be signed by the Judge or Magistrate
by whom it is issued.”109
Where a court has reason to believe, whether after evidence or not, that a
suspect, against whom a warrant of arrest has been issued by itself or by any
court or Justice of the Peace, has absconded or is concealing himself so that the
warrant cannot be executed, the court may publish a public summons in writing
requiring that person to appear at a specific place and a specific time not less
than thirty days from the date of publishing the public summons.110
The first provision is like those of the CPA and ACJL,111 while the second is like that of the
CPC.112 The draftsman may have been overwhelmed in a bid to fuse the three jurisdictions into
one and possibly had not notice the discrepancy on the authorities by whom a warrant of arrest
can be issued in the other jurisdiction. So, the ACJA provides for issuance of a warrant of arrest
by a Judge, Magistrate, or Justice of Peace.
Theoretical Framework
The administration of criminal justice draws it source from the Constitution as the base of
Nigerian Legal System. The Nigerian legal system recognises the features of law that it is a body
of rules; it is man-made; has a normative character with an element of coercion, territorially
limited and dynamic in nature. The legal system of Nigeria is a combination of the received laws
of England by virtues of colonisation from 1861-1960 and the local customary laws inclusion of
the Islamic law, thus adversarial.
The legal base of this work is on Natural Law doctrines. However, it will be foolhardy that one
legal philosophy is only relevant for a particular legal system or law to the exclusion of others
The discipline of law is predominantly concerned with human interactions and order in the
society. Law seeks to regulate and control not only human beings but also human institutions
some of which are direct creations of the law. It is the task of law to ensure that various
institutions of the State relate in such a way to ensure integrity, security and the well-being of the
State and its members is not endangered. More so, accused persons have some protections
against abused of investigatory and prosecution powers. Hence, the administration of criminal
justice is based on social control, deterring, extenuation of crimes, sanctions and restorations.
Administration Criminal Justice is that aspect of law recognised as being a public law. It is concern
with the protection of the state and the citizens113 and embraces legal relation where one of the
parties is higher in status than the other.114 The ACJA is a procedural law to be used where the
purpose is to prosecute criminal cases. It is an adjectival law that deals with methods and proceedings
to enforce certain rights or how prosecution is conducted. It is the rules by which the substantive
(criminal) law is enforced in the courts.115 Consequently, the rule of procedural law identifies the
way in which an action is to be originated in the court; method of proof; the manner of prosecution of
evidence; the method of giving evidence at trial; the examination of witness; the manner of giving
judgment and the judgment of the court how it is enforced.116
Law
It is trivial to want to deliberate on the administration of criminal justice as a procedural law
without making an allowance for the broad context with which the law is derived from. Charles
Louis de Second and Baron de Montesquieu wrote that “Laws in the wider possible
connotations are any necessary relation arising from a thing nature. In this sense, all beings have
their laws; the Deity his laws, the material world its law, the intelligences superior to man his
laws, the beasts their laws and man his laws…117”
The use of the word „law‟ is not consigned to one ideal meaning. Laws are said to be „eternal,‟
„divine‟, natural or „human‟ and the likes. The eternal holds that laws are derived from eternity;
have always existed, constant, everlasting and universal. This is the foundation of all other laws
and every rational law derives more or less from it.118 According to Aquinas, “the natural law
is nothing but a participation of the eternal law in a rational nature.
The concept of natural law has been regarded as a body of moral rules and principles of human
conduct which can be deduced from nature. Thus Lloyds described the expression natural law as
a body of objective moral principles based on nature of the universe and discoverable by man.119
The natural law doctrine in the position taken by Cicero that:
True law is right reason in the agreement with Nature; it is of universal
application, unchanging and everlasting, it summons to duty by its commands,
and avert from wrong-doing by its prohibitions. And it does not lay its
commands or prohibitions on good men in vain, though neither have effect any
on the wicked. It is a sin to try to alter this law, nor is it allowable to attempt to
repeal any part of it, and it is impossible to abolish it entirely. We cannot be
freed from its obligation by Senate or people, and we need not look outside
ourselves for an expounder or interpreter of it. and there will not be different
laws at Rome and at Athens, or different laws now and in the future, but one
eternal and unchangeable law will be valid for all nations for all times, and
there will be one master and one ruler, that is, God over us all, for He is the
author of this Law, its promulgator and its enforcing judge.”120
From the preceding therefore, natural law is deducible from these basic concepts as:
a. Ideal set of principles which guide legal development and administration;
b. The body of moral principles that confer validity on human or positive law;
b. The method of discovering perfect law
c. The content of perfect law deducible by reason
d. The conditions for the existence of law.
However, John Austin from the Positivists School argued that law is “what is laid down121, ordained,
or established as a rule or method by the sovereign.” It may be a phenomena or actions which co-
exist or follow each other and which must be obeyed and followed by citizens, subject to sanctions or
legal consequences.122 Law is a body of rules or the whole system or a set of rules made by the
government of a town, state, country, and etcetera.123 It is possible that law could be an act, bill,
constitution, enactment, ordinance, statute and more. By that stand, an obligatory rule of conduct; the
commands of him or them that have coercive power, compulsory and obligatory body of principles;
recognised and applied by the state in the administration of justice. There is a further distinction
between positive, legislative and judge made laws. Hence, society is but a people with collective
activities and interests, regulated by law. Invariably therefore positive law which means the same as
human law is oppose to natural law which is the law of God. The school posits that law is posited and
laid down by an authority of the society which provides its sole source and those not concern itself
with moral validity or ethical concepts.
Administration of criminal justice concern with prevention and protection and ridding off crime
from the society is disquiet with moral validity of human behaviour or conducts as an ethical
base of the society.
Impact of Law on Society
The impact of law on society is effectual. For instance abolition of slave trade, killing of twins
and customs are termed repugnant to natural justice, equity and good conscience. This
dependence on an egalitarian society with the rule of law as the base to protect each individual
from force that may be imposed from others, particularly the ruling class. Under the fundamental
rule or principle, the state is subordinate to the people124; it serves rather than superintends or
lords over the people. Hence, Gary Horne125 said that a prosperous and free society is possible
only when each individual is, by rule of law, protected from force imposed by others, especially
those in his own government. A nation created based on these fundamental principles is thereby
subservient to the people…When the rules of civil society are tossed aside; brutality, plunder,
and tyranny will come in. 126
The foregoing is express in the sense that there can be no meaningful society without law. Since
society is control, administer and order by law. Its influence is utilised on conducts as potential
influence operating in a particular society. William Golding asserted in the theme of his work
„Lord of the Flies‟ that:
The theme is an attempt to trace the defects of society back to the defects of
human nature. The moral is that the shape of a society must depend on the
ethical nature of the individual and not on any political system however
apparently logical or respectable.127
In today Nigeria, there is ethical profligacy, dishonesty and corrupt practices in many facet of
public life. Thus when there is no ethics in the society the law will be deprived conscience since
“conscience itself is nurtured by truth.” Law influences conducts which the society may refer
to as good and prohibits those referred to as being wrong. A society stands or falls on the
rectitude and amplitude of its operating law.128 The effect of law on society is that the rule of
law protects rights, limits corruption, and handles civil and criminal infractions, accordingly. The
World Justice Project observed and remarked129 that by providing rules and regulations for what
citizens can and cannot do, laws play a big part in defining the cultural expectations of a society.
Likewise Horne further observed that:
…individuals who reject existing standards without a plausible replacement end
up with a defectivesociety. Without an ethical foundation, they become
followers and inevitably strike out with hatred and cruelty when their ideas
cannot be defended, as with the sloganized and quick-to-hate left
of
today. Later, they may come to the frightening realization that the rules which
once protected them are no longer there. Few examples are more dramatic than
1930s Germany, where Hitler led an entire cultured nation into barbarism. How
was this possible? In Hitler's own words: "How fortunate for leaders that men
do not think.130
This presupposes that law is the thinking cap of the society. Removed or contaminate it; there
possibly will be no mutual respects; tolerance and no yardstick were activities are weighed and
then no society at all. In the contemporary Nigerian some communities are fast reversing
themselves to brutality no thanks to religion which is being used like a dangerous armament. For
instance:
Angry Muslims youths in Kano on Thursday evening decapitated a woman
trader over allegations that she blasphemed Prophet Muhammad. The victim,
who was said to be of Igbo extraction, was accused of blasphemy during a
religious argument at Wambai market. The woman, who sells plastics at the
local market, was in the company of her husband when she was murdered.
Contacted, the Public Relations Officer of the Kano Police Command, DSP
Musa Magaji, confirmed the incident.131
To this effect laws enacted are to enlighten and be implemented within a society capable to meet
the needs and values of the society and should influence the full interests of citizens. The law
should be allowed to strengthened legal rights not religious rights like the above instance, as the
true face of the impact of law in that society. In Brown v. Board of Education132during American
phase of bloodthirstiness it was observed that:
Although the Declaration of Independence stated that "All men are created
equal," due to the institution of slavery, this statement was not to be grounded in
law in the United States until after the Civil War (and, arguably, not completely
fulfilled for many years thereafter). In 1865, the Thirteenth Amendment was
ratified and finally put an end to slavery. Moreover, the Fourteenth Amendment
(1868) strengthened the legal rights of newly freed slaves by stating, among
other things, that no state shall deprive anyone of either "due process of law" or
The decision from the Brown‟s case is a proof that law can change society, and shows that if
there was no reforms during the Civil Rights Movement, schools will be different today. But
when desegregation laws were put in place people begin to view discrimination differently. This
may have buttressed white supremacy advocate at the outset but it later likely gave way for
greater tolerance.
The entity called Nigeria results from law, though not her peoples. The inability to apply and
follow the spirit and letters of law has so polarised the Nigerian society with her peoples singing
discordance tunes. This origin began during the British colonial administration with the cession
of Lagos to her Majesty‟s (United) Kingdom in 1861 until political independence in 1960. In
fact the name Nigeria is traceable to that era, even the coming together of different tongues and
tribes and English language being lingua franca results from the influence of law. Again, the
amalgamation of 1914 bonded the country into one nation with all the attendant implications.
Some of the implications therefrom are the Quota System, National Youth Service Corps
(NYSC) scheme and the federal government ownership of all mineral resources which is at
variant with the principle of quid quo plantator cede cede cedit were all made possible by law.
The import of amalgamation influenced the society on the basis that “Unity in Diversity”
strengthens both sides.134 This is further based on the philosophy that “United we stand, divided
we fall.” Thus, the motto: “Unity, Peace and Progress.” Accordingly Udo Udoma JSC (as he
then was) in his book witnessed that:
In 1912, Sir Frederick Lugard who left Northern Nigeria in 1906 after the
establishment of an administration, returned to the country…the assignment
was clear namely the amalgamation of the Colony and Protectorate of Southern
Nigeria with the Protectorate of Northern Nigeria to enable the two
administrations come under a single umbrella bearing the name135
Nigeria…obviously the name Nigeria was derived from River Niger. By reason
of the merger the surviving distinction was the area formerly described as the
Northern Protectorate of Nigeria became known as the Northern Province,
whilst the Southern Protectorate was called Southern Province.136 In the
judicial system, by special ordinances three classes of courts were established,
the supreme court, Provincial courts and Native Courts.137
Furthermore, the influences of law on society effectuate peace, good government, better standard
of living, equality and reaffirms dignity and worth of human person.138 Nsongurua said;
Although, the United Nation (UN) Charter is an organisation of states, it is
written in the name of “We the people,” an acknowledgement that ultimate
sovereignty lies with the people, not the states. The charter139 reaffirms the
dignity and worth of the human person, dignity being the common denominator
of our very humanity. It affirms respect for human rights, and equal rights of
men and women. It is a commitment to social progress, measured by better
living standards for the world‟s peoples, free from want and fear alike. These
undoubtedly are ingredients of good governance including “the principle of
equal rights and self-determination of peoples, which is stated as the basis for
friendly relations among nations. 140
In all, on society, the influence of law has specified the incentive to the modern regime of
international law; the emergence of fundamental (natural) rights; and the rules of natural justice.
It has helped in providing the philosophical basis for criticising unjust laws, like the South Africa
Apartheid law, and the call for reforms. It has also limits the powers of the ruler and justifies a
peoples‟ revolution should the rulers breach the standings of the social contract or the general
will of the citizenry. Another influence is that law gives special attention to socio-cultural milieu
in which it develops and account for the popular consciousness and traditional values of the
society that it is designed to serve. These influences signpost obedience in the society not
necessarily because of threats of sanctions, but to do what is needful in order to avoid civil
disruptions. Law is used to plan the society and regulate conflicting interests. Thus a lawyer is
entitled to study the basis and implications of such laws in order to check inherent conflict of
136 U. Udoma, op. cit. 40
137 U. Udoma, op. cit. 41
138 S. 4(3) CFRN
140 Udombana, N. J. (2003), Human Rights and Contemporary Issues in Africa, Malthouse, p. 69
