PRELIMINARY INQUIRY

 CONTENTS

1.0       Introduction

2.0       Objectives

• Main Contents
• Preliminary Inquiry into an indictable offence
• The procedure of a preliminary inquiry

4.0       Conclusion

5.0       Summary

6.0       Tutor Marked Assignment

7.0       References/Further Reading

  INTRODUCTION

A preliminary inquiry is an initial or preliminary examination of an indictable offence allegedly committed by an accused person. It is a first screening or hearing held by a magistrate to determine whether a person charged with an indictable offence triable by a High Court, should be held or committed for trial at the High Court. It is a preliminary inquiry into an indictable offence to determine whether there is prima facie evidence to warrant committing the accused for trial at a High Court.

  OBJECTIVES

In this unit, you are expected to learn the following:

• What is preliminary inquiry?
• The procedure of a preliminary inquiry
• That it is conducted by a magistrate
• That a prima facie case must be established against the accused

MAIN CONTENT

Preliminary Inquiry into an Indictable Offence

It is a preliminary hearing held in a magistrate court in respect of indictable or serious offences triable in the High Court during which the state is required to produce sufficient evidence to establish that there is probable cause or reason to believe;

• That a crime has been committed, and
• That the accused person committed it

Thus, a preliminary inquiry before a magistrate is essentially, a first screening of the criminal charges brought against an accused. The basic function of a preliminary inquiry is to determine whether there is sufficient evidence to hold a trial at the High Court.

Its function is thus not to try the accused. It is simply an inquiry aimed at determining whether there is sufficient evidence to justify a trial of an accused. Further, a preliminary inquiry does not require the same degree of proof, nor quality or evidence that is necessary during trial or for conviction. In Nigeria Criminal Procedure Law, as in England before a person is tried for an indictable or serious offence at the High Court, a preliminary examination of the charge is usually held, before a magistrate to determine whether or not, the accused person should be committed for trial at the High Court at public cost and with the attendant hurdles.

The proceedings open with the magistrate causing the substance of the complaint to be stated to the accused. The accused is not required to make any reply to the complaint and if he does, the magistrate must not record the reply. The next stage is the examination by the magistrate of witness for the prosecution. When anyone of the witnesses is being examined, no other witness should be present unless the magistrate is of opinion that it is necessary or conducive to the ends of justice that any particular witness should be permitted or required to be present during the whole or any part of the examination of any other of the witnesses.

Therefore, magistrate must take into consideration the statement made by the accused and any evidence given by him or his witnesses before deciding whether to commit the accused for trial. Where there is a conflict between the evidence for the accused and the evidence against him, the magistrate must consider the evidence against the accused to be sufficient to put the accused on his trial if that evidence is such as, if un contradicted, would raise a probable presumption of the guilt of the accused.

The Procedure of a Preliminary Inquiry:

A preliminary inquiry, usually takes the following procedure.

• The prosecution calls witnesses who give evidence under oath, which is known as a deposition.
• The witnesses may be crossed examined by the accused and or his counsel and they may be re-examined by the prosecution
• The evidence of every witness is written down by the magistrate and read out to such witness in the presence of the accused person and the witness, the magistrate, and the interpreter sign the evidence or deposition, if any was used.
• The witnesses are bound over to attend the trial in the event of a trial
• The accused, that is, the defence may at this stage submit that there is “No case to answer” and that the charge ought to be 
• If the evidence or charge is not dismissed, the charge is written down, read and explained to the accused
• The magistrate then asks the accused, whether he wishes to say anything in answer to the charge, there and then caution and explains to the accused, that he is not obliged to say anything, unless he wishes to and that whatever he says will be written down and may be used in evidence at the trial
• What the accused person says is written down and read over to him, he signs it and the magistrate signs it, including an interpreter if any was used
• The accused and his witnesses, if any, given evidence on oath, are cross-examined and may be re-examined by the defence
• The defence counsel may address the court once again
• The magistrate then reads his decision in respect of each of the count of the charge or information.

Thus, if the magistrate decides that there is a prima facie case to answer, the accused person is then committed for trial at the High Court. He may or may not be on bail in the meantime, depending on whether or not it is a bailable offence. If a prima facie case is not made out to warrant sending the accused for trial at the High Court at the usual public expense and effort, the charges and evidence are dismissed and the accused is discharged and acquitted or discharged but not acquitted as the case may be.

SELF-ASSESSMENT EXERCISE

Can you say that in Nigeria the procedure of a preliminary inquiry is observed?

  CONCLUSION

If the magistrate considers the evidence against the accused insufficient to put him on his trial, the magistrate must immediately order that the accused be discharged with respect to the charge under inquiry but the discharge is not a bar to any subsequent charge in respect of the same facts. If the magistrate considers the evidence sufficient to put the accused on his trail, he must commit him for trial before the High Court. In that case, the magistrate must until the trial, either grant the accused bail or send him to prison for safe keeping.

  SUMMARY

The procedure for the summary trial by the High Court of indictable offences with respect to which there has been a committal for trial in the High Court is, in general, similar to the procedure for the summary trial of non-indictable offences in magistrates’ courts is different.

TUTOR MARKED ASSIGNMENT

Explain vividly the preliminary inquiry into an indictable offence.

PREFRENCES/FURTHER READING

Akintunde Obilade O., (1990) - The Nigerian Legal System, Owerri, Spectrum Law Publishing.

Ese Melami, (1999) - Outline of Nigeria Legal System, Lagos, Grace Publishers Inc.

Kiralty, A.K.R., (1960) - The English Legal System, London, Sweet and

Maxwell

Tappan P.W., (1960) - Crime, Justice and Correction, New York, McGraw Hill Book Co.