OUTCOMES:
At the end of the lesson students would be able to:
- Discuss the constitutional and statutory provisions safeguarding the rights of an accused person in a criminal trial.
- Discuss the limits of those rights.
The legal safeguards to ensure the fair trial of an accused/defendant is circumscribed in chap 4 of the 1999 CFRN as amended. See Fejemirokun v Comm.Bank (credit Lyonnais) Nig. Ltd (2009).
Breach of either of these rights may invalidate a trial irrespective of how well the trial is conducted.
List of constitutional safe guards
- Right to be informed of the crime alleged
- Right to fair hearing
- Presumption of innocence
- Right to adequate time and facilities for defence.
- Right to counsel
- Right to be tried only for an offence known to law
- Right to silence
- Right to one trial for one offence
- Right against trial upon retroactive legislation
- Right against trial for an offence for which accused has been pardoned.
- Right to examine witnesses called by the prosecution
- Right to interpreter.
RIGHT TO FAIR HEARING – S36(4) 1999 CONST.
Fair hearing is a judicial/administrative hearing conducted in accordance with due process. Due process is the conduct of legal proceedings according to established rules and principles for the protection and enforcement of private rights.
In Audu v FRN, SC defined fair hearing as a trial or hearing conducted according to all the legal rules formulated to ensure that justice is done to the parties.
Fair hearing may be likened to the issue of jurisdiction. It can be raised at any time. It is the fundamental and foundational cornerstone of Nigerian jurisprudence and legal system. See Orugbo v Una (2002) S.C.
Complaint of fair hearing must be resolved before the court proceeds with the matter. See Babalola v Oshogbo local government (2003).
The court/tribunal must be constituted in such a manner to secure its independence and impartiality. The parties cannot waive the right to fair hearing. Jang v INEC (2004) 12 NWLR (Pt.886), Nwokoro v Onuma (1990).
The crux of fair hearing is on the procedure leading to the determination of the case and not the outcome. Fair hearing does not focus on the correctness of the decision. See Orugbo v Una (2002) 16 NWLR (Pt.792) 175.
Justice must not only be done, but must manifestly and undoubtedly be seen to have been done, Sussex justices exparte McCarthy. UAC v Mcfoy case – you cannot put something on nothing and expect it to stand, so the case cannot be valid if there is no fair hearing. A party cannot waive the right to an impartial tribunal. Umenwa v Umenwa (1987) 4 NWLR.
The principles of natural justice must be followed.
Principles of natural justice
- AUDI ALTEREM PARTEM– it enables each party to the trial to be heard;UNIBIZ V CREDIT LYONNAIS (2003) 6 NWLR (pt.816)402. Hearing entails opportunity to be heard, not saying they must be heard. See 36(2)(a) 1999 const.; Sule v Ebune; Uni. Uyo v Essel; N.B.A. v Akintokun (2006). It also entails opportunity to engage counsel of his choice, put forward his defence. See Akabueze v FRN (2003) FWLR. It also entails giving opportunity to the other party to react to issues raised suomoto by the court. Odessa v FRN (2005) All FWLR (pt.282) 2010. There must be the absence of bias and/or likelihood of it in the course of a judicial hearing UMAR v ONWUDINE (2002). Judge must not make unguarded comments through conducts or words. It further ensuresthat opportunity shall be given to the defendant/accused to call his witnesses ( S36(6)(b) const. It also includesopportunity to cross-examine prosecution witness, where the person is unrepresented by counsel, at the close of the examination in chief of each witness of the prosecution, the court must inform the defendant of his right to cross examine that witness. Where the accused is represented the court need not remind the counsel as counsel is aware of that right. It also ensures that trial should be conducted and concluded within a reasonable time. S. 36(4) const; article 7(1) African charter of Human & people right;Okeke v State (2003) 15 NWLR (pt.842) 25. The Supreme Court defined reasonable time in Effiong v state;Asakitipi v state. It depends on the circumstance of each case and the novel issue that arose during the course of the trial.
Does accelerated hearing negate the principles of fair hearing? FHC (PD); CA (PD); Oyakhere v state (2006) All FWLR. It depends on the circumstances
Shielding of witnesses does it not amount to denial of fair hearing?
Judge must accord each party equal treatment. Preferential treatment is not allowed, it must relate to all the parties in the court. Gitto v Etuk. Fair hearing applies to all the court or tribunal be it magistrate or high court, it is not court sensitive.
The test to determine if there has been fair hearing or not is an objective test. The test of a reasonable man, it does not depend on the wimps and caprices of the presiding officer. See Yabugbe v C.O.P
- NEMO JUDEX IN CAUSA SUA
No judge should preside over a matter in which he has a personal interest in or remotely connected. General Electric Company v Akande; Orugbo v Una (2002).Rule against bias see Womiloju v Anibiri; Garba v Uni.Maidugiri.
Can a husband who is a judge try his wife for an offence whatsoever? See Azokwu v Nwokanma (2005) All FWLR on the definition of bias. There doesn’t have to be actual bias, but so long there is a likelihood of bias.
- Judge must not be interested in parties.
- Judge must not be interested in the subject matter
- Judge must not be interested in the outcome of the proceedings
- Judge must not have a pecuniary interest in the matter
Essential elements of fair hearing
Established by the Supreme court in Effiong v The state (1995)1 NWLR; Ekwuruekwe v State (2013); Ozoemene v Ozoemene (2013).
- Right to be heard
- Trial to be held within a reasonable time
- The court must be one established by law
- Adjudicators must be independent
- Adjudicators must be impartial
- Easy access to court
- Proceedings to be held in public
- Equal treatment and opportunity to all concerned
Proof of lack of fair hearing
Miscarriage of justice is inherent in denial of right to fair hearing. A party who established denial of his right to fair hearing is not required to prove miscarriage of justice. Fair hearing is about procedure (due process) and not outcome. SeeMpama v FBN; The Regency Council of Olotaa of Otta v Sodeinde (2013)
Effect of breach
Proceedings and the decision arrived at by the court becomes a nullity. It is immaterial that the same decision would have still been reached in the absence of violation. We are looking at the process. See Audu v FRN ;Omoluwajo v FRN; Akole v Alonge
RIGHT TO BE INFORMED OF THE CRIME ALLEGED
S 36(6)(a); s.215 CPL; s 187(1) CPCL; S.211(1) ACJL & SS.271(2) (a), 356(1) ACJA
This is an extension of the doctrine of fair hearing. The accused/defendant is to be informed promptly of the nature of the offence. Ibrahim v State (2015) 11 NWLR (Pt.1469) 187.
To be informed in the language he understands. Okeke v State (1995) 4 NWLR (pt.392) 676. To be informed in detail the nature of the offence. This is the hallmark of arraignment. It also entails the right to have the charge/information explained to him before he takes the plea. Okeke v State.
QUERE: is there any relationship between section 36 (6)(a) and 35(3) of the constitution? The first relates to the right to be informed at the point of arraignment while the other is the right to be informed upon arrest.
S 36(6) relates directly to arraignment. An accusedis not to be convicted for an offencehe was not charged with or for which he did not plead. SeeYAHAYA V STATE (2002) a defendant is not to be convicted for an offence hat he has not been charged with, or for an offence for which he did not take his plea. Without a plea being taken any exercise done in that trial is an exercise in futility.
Exceptions to non-conviction for an offence not charged
- Conviction for alesser offences than the one charged. See s.218(2) CPCL; 179 (2) CPL; s.171 (1)(2) ACJL. Adava v state (2006) All FWLR (pt.311) 1777;Maja v The State (1980). The justification is that the ingredients of the lesser offence is subsumed under the ingredients of the greater offences.
See s.166 ACJL; S217 CPCL; S.179 CPL
- Accused may be convicted for another offence where evidence at the trial discloses another offence from which he was charged. Odeh v FRN (2008) All FWLR (PT. 424) 1590.
Kareem V FRN (2002); NWACHUKWU V STATE (2007)
Rational for the rule: once a person is informed of a grave offence he is deemed to have information of a lesser offence NWACHUKWU V STATE (2007)
Effect of breach: breach of this section renders any trial a nullity no matter how well conducted. YAHAYA V STATE – plea was not taken.
Note read the case of UGBOJI V STATE (2017) in line with s 1(1)&(3) 1999 const. s.36(6)(a) 1999 const. Failure to frame a formal charge renders the decision perverse and unconstitutional. In UGBOJIthe SC voided a decision that was based on s216 & 217 CPCL of Benue state (relate this provision to equivalent provisions of CPL, ACJL, and ACJA). In the case someone was charged and convicted by the high court, the HC convicted the person for an offence different from that which he was charged. The Prosecution was unable to successfully prove the material case for which the man was charged but the court relying on s 217 CPCL convicted the person for another offence, they appealed saying the conviction was unconstitutional, the CA dismissed the appeal, the SC upheld the appeal and upturned the conviction on the basis that s216 and 217 CPC contradicts s 36 (6)(a) of the constitution.
ADEQUATE TIME AND FACILITY TO PREPARE FOR DEFENCE
S.36(6)(b) 1999 CONST.
This applies to both trial on information or summary trial. See Okoye v C.O.P (2015) All FWLR (pt.799) 1101
Entitle to adjournment to secure the attendance of his lawyer. See s.349(2) & (3) ACJA. AKABUEZE V F.R.N (2003) FWLR (PT.17801165); UNIVERSITY OF ILORIN V AKINROGUNDE (2006) ALL FWLR; JOSIAH V STATE (1985) 1.S.C 406
Note however that in the trial of a capital offence the court must adjourn once defence counsel is not in court. See Udo v state (1988) 3 NWLR (PT.82)316. In other cases, adjournment is at the courts discretion. SHEMFE V COP. See especially GOKPA V IGP (1961). ACJA extends the rules to say that once the offence carries a term of imprisonment for life,the person must be represented by a legal practitioner.
By extension an accused/defendant is entitled to reasonable adjournment to secure attendance of witnesses. CONDITION PRECEDENTS
- Must show that the witness is material; see ss 200, 201-204 EZ
- He is not guilty of delay /neglect – so he has not wilfully wasted the time of the court
- Witness must be available on a certain date – which is usually adjourned date
BUT SEE s.396(4)(5)&(6) ACJA
Right to apply to court to issue witness summons to compel any witness to testify for him. S 186(1) CPL; 177 ACJL; 193(2) CPCL.
Accused is entitled to have copies of proof of evidence and witness statements. FRN V WABARA (2014); UKET V FRN (2008); UWAZURIKE V FRN (2009).
RIGHT TO COUNSEL – S36(6)(c) Const.
Right to defend himself in person. This includes the right to be defended by any Legal Practitioner of his choice if he elects. Note:MATTHEW V STATE (2017) – the court said that the office of the AG cannot charge and at the same time defend the defendant i.e. they cannot both prosecute and defend.
This right applies before any court or judicial panel in Nigeria, see UZODINMA V COP (1982); s.390 CPC & s.28 area court edict. This applies even before the court Marshall. The accusednot be to denied this right, NWABUEZE V FRN.
Court is duty boundto informaccused of this right. S349(1)(a)(b)ACJA. Counsel cannot be imposed on the accused except in capital offence. S 267 (1) & (4) ACJA. Right to counsel is available in all criminal cases.
Note that accused inability to pay counsel does not mean denial of right to be represented by a counsel. See Amanchukwu v FRN (2007) All FWLR
Accused insistence on hiring a disqualified/unqualified counsel does not invalidate this right. Counsel in this right refers to a legal practitioner under s2 LPA and the counsel must not have a disability; Awolowo v Minister of Int. affairs &ors,- the counsel must be one qualified to practice law in Nigeria and not suffering from any disability e.g. disqualified
Entitled to adjournment to secure the service of another counsel. See s.349(3) ACJA
RIGHT TO EXAMINE PROSECUTION WITNESS. S 36(6)(d) CONST.
- Right to call and examine his own witnesses
- Right to cross-examine each of the prosecution witness
- He need not be represented by counsel for this right to be activated.
See TULU V BAUCHI N.A
The court cannot take over the examination on behalf of the accused person where he is unrepresented by counsel s.189 (2) CPC.
Note the 3 categories of examination of witnesses in criminal trials in Nigeria. See 214 & 215 EA 2011. Note also the order of examination of witnesses. See s216 & 217 E.A. 2011.
RIGHT TO INTERPRETER S.36(6)(e) 1999 CONST; S 195 ACJL
This is an extension of s.36(6)(a) 1999 Const.
- Who is an interpreter? Means a person who translatesespecially orally froma language to another.
- Who may be an interpreter? Any adult person knowledgeable in the accusedpersons language and that of the court may act as an interpreter
- Qualifications of an interpreter? No special qualification is needed
- What is the language of the court? The language of the court is English language. See FRN v Mohammed (2014); Madu v State (1997)
- What is to be recorded? Note that the court can only record what is interpreted to it and not the exact words used by the accused. See FRN V MOHAMMED; MADU V STATE.
Accused is entitled to understand the language of the court.
The court must also understand the accused language. BAYO V F.R.N (2008) All FWLR (PT.428) 304.
Right to interpreter for free where he does not understand the language of a court. S 36(6)(e); UWAKWEGHINYA V STATE (2005)
Adequate interpretation is required – Ajayi v Zaria (1963)
Where defendant understands the language in which evidence was given, interpretation is not required – ONYIA V STATE (2009);Cf OKORO V STATE (2012).
Duty is on the accused counsel to inform the court - BAYO V FRN (2008) . Right to interpreter cannot be raised first time on appeal, except it was raised and denied at lower court – UDESEN V STATE (2007)
RIGHT TO BE PRESUMED INNOCENT – S 36(5) 1999 CONST.
An accused is presumed innocent until proven guilty. OKORO V STATE (1988) 12 SCNJ 191; IBRAHIM V STATE (2015) 11 NWLR (pt.1469)
Hence every of his defence must be considered. AGBITI V NIG.NAVY (2011) All FWLR 9pt.570) 1222
Incidents of burden of proof
- Duty on prosecution to prove the guilt of the accused/defendant beyond reasonable doubt. S 135 EA 2011; USO V C.OP (1972)
- Burden of proof on accused to prove certain facts. See proviso to s.36(5) Const, s 139(3)(c) & 140 E.A 2011.
Legal and evidential burden.
RIGHT TO BE TRIED ONLY FOR AN OFFENCE KNOWN TO LAW. S 36(12)
Offence to be created by a written law.The offence must be known to law. AOKO V FAGBEMI (1961); Olieh v FRN (2005)
Punishment for the offence must be prescribed. The same law must provide for the offence and the penalty must be prescribed for See AGF v ISONG (1986) ; KALU V NIGERIAN ARMY (2010)
The section also applies to trials before Military tribunal e.g. in a court Marshall. See ASAKE V NIGERIAN ARMY COUNCIL (2007)
The right also applies to person subject to military law - Asake v Nigerian army council (2007). The law must be an act of the NA; state assembly; local government; legislative council or a subsidiary legislation made pursuant to delegated authority.
RIGHT TO SILENCE
Ss36(11) 1999 Const.; 180 (a) EA; 236(1)CPCL ; 287(1) CPL; 240 (a)(iii) ACJL; S. 6 (2)(a) ACJA.
It is the right of an accused to elect whether or not to give evidence.
He may elect to not call any witness.
An accused person is a competent witness but not compellable. Ss179&180 EA; Aiedoyin v state.
Can prosecutor comment on the silence of the defendant/accused? S.181 EA
The court may draw inference from it. See esp. s.236(c) CPC; AUDU V STATE (2003); IGABELE V STATE (2006)
Failure to give evidence may lead to conviction.
RIGHT TO ONE TRIAL FOR ONE OFFENCE
S 36(9) 1999 CONST; S 226 & 238 (1) ACJA; S 22191) &181(1)(a) CPL; 223 (1) CPCL; 173 (1)(a) & 216 (1) ACJL
It cannot be raised on appeal after conviction. See EDU V COP (1952) 14 WACA 163 . It relates to the bar plea (autrefois acquit).
What to establish before a bar plea would succeed
- That the court is a court of competent jurisdiction s 176 ACJL
- That the person has been tried and acquitted or convicted
- The trial must be a criminal charge based on a legal code R v Jinadu (1948)
- The charge must be same with that for which he had previously been charged/same ingredient. s 218(2) CPC
The factors are cumulative.
RIGHT AGAINST TRIAL UPON RETROACTIVE LAW .S36(8) const.
Retroactive legislation is prohibited. EGUNJOBI V FRN; FRN V IFEGWU (2003) . A defendant or accused cannot be charged for an act not constituting an offence when it was committed. It also means the accused/ defendant Cannot be charged for omitting to do an act which did not constitute an offence at the time it was omitted. It also relates to the punishment so the defendant cannot be punished beyond the prescribed punishments at the time of commission.
TRIAL FOR AN OFFENCE FOR WHICH AN ACCUSED HAS BEEN PARDONED.
S.36(10), S.175 & 212 Const.; s.211(b) CPA; S.216(1)(b)ACJL.
Prerogative of mercy
Quere: is pardon an acquittal? Is pardon an amnesty?
Amnesty is a political tool used by government officials to compensate certain persons who have committed an act that is against the state or individuals. Pardon cannot be heard during the pendency of a matter, upon arraignment only a nolleprosequi can be entered to terminate the matter.
Pardon presupposes conviction. A person already convicted and subsequently pardonedcannot be referred to as an ex-convict again – FALAE V OBASANJO (No. 2) (1999) see s 182(1)(d)&(e) 1999 const.
Proof by presenting an instrument of pardon. Okongwu v state.