10/07/2024
âď¸âď¸ *TRIAL OF A JUVENILE UNDER THE NIGERIAN LAW*
*On Who is a juvenile*
The word "juvenile" is nowhere defined in any piece of legislation in Nigeria. The Children And Young Persons Act defines a "child" to mean a person under the age of 14, while a "young person" is defined as a person who has attained the age of 14 and is under the age of 18. Except in respect of some punishments, there is little practical significance to these distinctions and for ease of reference it is proposed that whenever the word "child" or "juvenile" is used in this presentation, it refers to a person under the age of 18 who may be dealt with under the special provisions of the CYPA.
However, children as defined by Child's Right Act (2003) is any person under the age of 18.
*Age of criminal responsibility*
Rather than adopt a single age of criminal responsibility, Nigeria has adopted various age demarcations under which responsibility may or may not be assigned depending on the circumstances or the offence. Thus, a child below the age of 7 is not criminally responsible for any act or omission. A child between the ages of 7-12 will not normally he held responsible for his actions unless it can be proved that at the time of committing the offence he had the capacity to know that he ought not to do it. A male child under the age of 12 is always assumed to be incapable of having carnal knowledge and therefore cannot be held responsible for offences requiring that element. A child above 12 is fully responsible for his actions; however such a child remains subject to criminal proceedings in a juvenile court until the age of 18.
*On Ways of proving the age of a person who appears to be a juvenile -*
There are four methods or ways of proving the age of a person who appears to the court to be a juvenile. These are by:(a)the production of a birth certificate, or(b)other direct evidence as to the date of birth; or(c)a certificate signed by a medical officer in the service of government giving his age; or(d)the age presumed or declared by the court to be the age of the accused.In the instant case, the declaration of the Trial court that the appellant "is aged about 18 years" puts the matter beyond question. It could no longer appear to the court that the appellant is a juvenile in view of the provisions of section 30 of the Children and Young Persons Law. The Trial court who had the opportunity of seeing and observing the appellant during the Trial having placed his age at about 18 years, the need to produce a birth certificate or medical certificate or direct evidence is thereby obviated. (Pp. 125, paras. E-H; 126, paras. F-G)Per SALAMI, J.C.A. at page 126, paras. A-D:"The antecedent of the appellant that he was in class IV in a technical college is not ipso facto indicative of the fact that he is or was a juvenile. I agree with the submission of the learned counsel for respondent that persons who are not juvenile could still be in class iv in a technical college. The evidence of the appellant to the effect that he was in class iv in a technical college without more is not sufficient to l...
*See:Okoro v. State(1998) 4 NWLR (Pt. 544) 115 C.A.*
*On Venue for Trial of young offender -*
All young offenders are subject to Trial by juvenile courts, except in two cases: (a) where the charge is one of homicide; and where the juvenile is charged jointly with an (b) adult. In cases of homicide, a juvenile court can conduct a preliminary inquiry into the matter but cannot proceed as full Trial of the offence, if a prima facie case is established. I t is the High Court that embarks on the Trial for homicide and not the juvenile court. I t is the nature of the offence charged that ipso jure requires that the accused person is charged and subjected to full Trial. [Ahmadu v. State (20 14 ) LPE LR - 23974 referred to. ] (Pp. 596-597, paras. G-A)
*See: Musa v. State (2022) 18 NWLR (Pt. 1863) 551S.C.*
*On Relevant age where accused adjudged a juvenile -*
Where it appears to a Trial court that an accused person is a juvenile, the age in issue is the age at the point of sentence and not for purposes of criminal responsibility or conviction. Therefore, the accused is liable or fully responsible for the natural consequences of his act but for reason of his age that is, at the time of conviction and not of the commission of the offence, he can not be sentenced to death. [R. v. Bangaza (1960) SCNLR 1 referred to] (Pp. 126-127, paras. H-A)4.On Appropriate order to make where convict is below 17years old- By virtue of section 368(3) of the Criminal Procedure Law, where an offender who in the opinion of the court has not attained the age of seventeen years is found guilty of a capital offence, sentence of death shall not be pronounced or recorded but in lieu thereof the court shall order such offender to be detained during the Governor's pleasure and if so ordered he shall be detained notwithstanding anything to the contrary in any written law. (P. 127, paras. D-F)
*See:Okoro v.State(1998) 4 NWLR (Pt. 544) 115 C.A.*
*On When court will inquire into accused's age -*
Where an accused person in a criminal Trial is not considered a juvenile, there is no duty on the court to make an inquiry. The duty to make an inquiry into the age of the accused only arises where he appears to the Trial court to be a juvenile, that is a person whose age is less than 17 years. However, where the accused's age is found or presumed or declared to be 17 years and above, it is no longer necessary to conduct an inquiry into his age. (P. 126, paras. G-H)
*See:Okoro v. State (1998) 4 NWLR (Pt. 544) 115 C.A.*
*On Whether it is the duty of Prosecution to prove age of accused person -*
It is not the duty of the prosecution to speculate or embark on a voyage of discovery to determine the age of the an accused person. Section 30 of the Children and Young Persons Law Cap. 19, Laws of Eastern Nigeria 1963 does not impose any such duty or obligation on the prosecution or the court. It is open to the accused to lead evidence to establish his age. This is more so where, as in this case, the issue of accused's age was not in issue. (P. 288, paras. B-D).5.On Interpretation of Section 30, Children and Young Persons Law of Eastern Nigeria, 1963 -Section 30 of the Children and Young Persons Law of Eastern Nigeria 1963, can be broken into two parts, namely:(a)Where it appears to the court that the accused person is a juvenile; and(b)Where it appears to the court that the accused person is of the age of seventeen 17 years or upwards.With regards to the first part, the court shall follow the procedure laid down in the section of the Law to determine whether the said person is a juvenile or not. In such a case, the court shall make the inquiry required by the section as to the age of that person. In the second part, however, no such inquiry is imposed on the court by Law. Thus, where it appears to the court that the accused person, as in this case, is of the age of 17 years or upwards that person shall, for the purposes of the Law, be deemed not to be a juvenile. The court shall, in such a case, proceed with the hearing of the case without the formality of an inquiry as required in the first part of the Law as stated above. (Pp. 291-292, paras. G-A).5(b)On Determination of whether a person is a
*See:Effia v. State(1998) 2 NWLR (Pt. 537) 275C.A.*
*On Duty on accused or his counsel to raise issue of age at Trial court not in appeal -*
Where a Trial court presumes an accused person not to be a juvenile and the accused or his counsel thinks otherwise, they should raise the issue of age at that point (the Trial level) and the Trial court will be bound to proceed under the procedure laid down by the Children and Young Person's age. Where they fail to raise in the Trial court, it will be too late for them to do so in the court of appeal. (P. 292, para.E)Per UBAEZONU, J.C.A, at page 292, paras. D-E:"The issue as to the age of the appellant came into focus as a result of the cross-examination of him by State Counsel - a needless question in cross-examination. Be that as it may, the age written on Exh. 1, the statement of the appellant was 18 years. Under S.30 of the Law under consideration, a person of 18 years of age is not a juvenile. To be a juvenile under the law, one has to be below 17 years. If however learned defence counsel thought otherwise, he could have raised it in the court below, in which case the Trial judge would be bound to proceed under the procedure laid down by the law. Having not done so, it is now too late in the day to raise it. In any case, however, there is sufficient evidence to show that the appellant was over 24 years at the time of the commission of the crime."
*See:Effia v. State(1998) 2 NWLR (Pt. 537) 275 C.A.*
*On Whether juvenile charged for murder has special privilege in matter of bail -*
On a strict interpretation of section 118(1) & (2) of the Criminal Procedure law and section 32(1) & (7) of the 1979 Constitution, no special privilege is granted a juvenile who is charged with the offence of murder when it comes to the matter of bail. (P. 254, para. C).
*See: Emordi v. C.O.P.(1995) 2 NWLR (Pt. 376) 244 C.A.*
*On Appropriate order where a juvenile is found guilty of capital offence -*
By virtue of section 368 (3) of the Criminal Procedure Law of Bendel State, where an offender who in theopinion of the court had not attained the age of 17 years at the time the offence was committed is found guilty of a capital offence, sentence of death shall not be pronounced or recorded but in lieu thereof, the court shall order such person to be detained during the pleasure of the Governor. In the instant case, there were discrepancies in the age of the appellant as reflected in exhibits A and B both tendered by the prosecution which made it doubtful whether or not the appellant was 17 years old when the offence was committed. In the circumstance the appellant should be given the benefit of the doubt in respect of the sentence of death passed on him by the Trial court. Consequently, the Supreme Court would set aside the sentence of death and order the appellant to be detained at the pleasure of the Governor of the State where the offence was committed. (Pp.379, paras. G-H;380-381, paras. H-B,D-G)
*See:Guobadia v. State(2004) 6 NWLR (Pt. 869) 360 S.C.*
*On Whether sentence of death can be imposed on person under seven teen years of age or on pregnant woman -*
By virtue of section 270 of the Criminal Procedure Code, Cap. 39, Laws of Jigawa State 1998, n o sentence of death shall be imposed on a person who is under seven teen years of age or on a pregnant woman . Section 270 of the Criminal Procedure Code merely echoes the law as stated in s ection 13 of the Children and Young Persons Law, which provides that a death sentence shall not be passed on any juvenile that has not attained the age of seventeen. In the instant case, the Court of Appeal was right that the appellant having stated in exhibit 1 that he was eleven years old at the time of the commission of the offence and twelve years when convicted and sentenced, he was not supposed to have been sentenced to death by hanging. The Court of Appeal was right when it set aside the sentence of death by hanging passed upon the appellant by the Trial court and in its place made an order that the appellant be detained during the Governor's pleasure. (Pp. 580, paras. F-G; 594, paras. G-H; 599-600, paras. G-B)
*See:Musa v. State(2022) 18 NWLR (Pt. 1863) 551 S.C.*
*Whether Courts other than juvenile Courts have jurisdiction to try and sentence juvenile offenders where the age of the juvenile becomes obvious only during trial*
"The Juvenile Court Law for Jigawa State provides the age to be eighteen years. Ordinarily, he would have to be tried at a Juvenile Court. Section 9 (b) of the Juvenile Courts Law Jigawa State provides that Courts, other than Juvenile Courts shall continue to have jurisdiction to try Juvenile offenders where: "the age of the Juvenile becomes obvious only during the trial." Therefore, there is no doubt, that the trial High Court here, which only ascertained the age of the Appellant to be below eighteen years during the trial, had the jurisdiction to continue and to try the Appellant. Trial includes conviction in this case. It therefore had the jurisdiction to try and convict the Appellant. The bone of contention is its jurisdiction to pass sentence on the Appellant after it convicted him. The Proviso to Section 9(b) of the Juvenile Courts law provides - "Provided that if at the conclusion of the trial, the Court is satisfied with the guilt of the Juvenile, it shall remit the case to Juvenile Court to pass the appropriate sentence". When the word "shall" is used in a legislation, it generally connotes a mandatory duty. But the word "shall" is capable of more than one meaning. It may mean a compulsion, a mandatory duty which renders action taken in opposition, invalid. It may also imply a permissive command, i.e. a permission to do the act or refrain from so doing, a discretion that may or may not be exercised, without a negative consequence. See A.T LTD. VS. A.D.H LTD. (2007) 15 NWLR (PT. 1056) 118 AT 150. It is therefore clear that the mere use of the word "shall" does not always mean a command. It depends upon the circumstances and the context upon which it is used. There is no hard and fast rule to its meaning. In DOMINIC ONOURAH IFEZUE VS. MBADUGHA & ANR. (1984) S.C 79 on meaning of the word "shall", Eso J.S.C. at page 135 held that "it is now trite that the word "shall" does not always mean "must", a matter of compulsion. It could be interpreted, where the context so admits as "may", whereas "may" is not always "may" it may sometimes be equivalent to "shall". It is imperative that it is the pursuit of justice, vis-Ă -vis the intention of the legislature, that must weigh heavily in interpreting the word "shall" in the context in which it is used in a legislation. See also DANGOTE LTD. VS. HASON (NIG.) LTD. (2013) 16 NWLR (PT. 1379) 60 AT 87. ?In the instant appeal, the word in the proviso is "shall". In my view, it is a word connoting a permissive action only, not a mandatory command. This is because no sanction has been provided in that wise, for the failure to do as permitted. In other words, in the context in which the word "shall" was used in the proviso, the failure to remit the case to a Juvenile Court for sentence to be passed on the guilty party, does not render the act of passing the sentence by the trial Court an invalid act. It certainly cannot be such an invalid act as to result in the discharge and acquittal of the Appellant as submitted by the learned counsel for the Appellant. That will be totally unjust to the society, the victim and the Appellant himself. That cannot be the intention of the legislature in enacting the proviso and this Court will not toe the path of injustice by interpreting the word against the intention of the legislature. I am strengthened in this view by the provision of Section 12 of the Children and Young Persons Law Jigawa State, which recognizes that a young person can infact be committed to a place of detention or approved institution or ordered to be imprisoned. It is only that if an order of imprisonment is made, then he shall not be allowed so far as is practicable, to associate with adult prisoners (Section 12(3). This further shows that where it is not so practicable, then he will have to associate with adult prisoners. All these go to show that there is a discretion on the part of the Court, to sentence or send a guilty party to a Juvenile Court to be sentenced. It also shows that such a guilty person can be sentenced to a term of imprisonment." Per ABUBAKAR DATTI YAHAYA, JCA (Pp 7 - 10 Paras A - E)
*See: ABDULLAHI v. STATE(2020) LPELR-51947(CA)*
*Whether an under aged accused person can be subjected to full trial by any other Court than the Juvenile Court*
"...The Appellant's counsel argued further that the Court was wrong to have proceeded to full trial. In view of the fact that the Appellant was only 11 years old at the time he committed the offence. It is my view that this does not arise from the Appellant's grounds of appeal. Nevertheless, even if it does, it is the nature of the offence charged, ipso jure requires that the Appellant is charged and subjected to the full trial. In Ahmadu vs. State (supra), the lower Court, per Adamu, JCA held: "All young offenders are subject to trial by juvenile Courts, except in two cases: (1) where the charge is one of homicide; and (2) where the juvenile is charged jointly with an adult, but in cases of homicide, a juvenile Court can conduct a preliminary inquiry into matter but cannot proceed as full trial of the offence, if a prima facie case is established". The law as espoused in the case cited above is that it is the High Court that embarks on the trial for homicide and not the juvenile Court, See Section 12 (1) of the Children and Young Persons Law." Per MARY UKAEGO PETER-ODILI, JSC (Pp 51 - 52 Paras B - A)
*See: MUSA v. STATE(2022) LPELR-58849(SC)*
*On Need to reform or rehabilitate young offenders -*
Young offenders should be given opportunity for correction, reformation and rehabilitation to be restored into society as useful law abiding citizens. Thus, prosecutors and adjudicators should not claim ignorance of or deliberately sidetrack the provisions of the Child's Rights Act, 2003 in the course of administration of criminal justice in respect of a child or juvenile. (Pp. 226 -227, paras. G-A)
*See: Kachi v State(2015) 9 NWLR (Pt. 1464) 213 C.A.*
