The constitution of federal republic of
Nigeria, 1999 as amended, provides some measures for trial in criminal cases.
These measures are in attempt to give constitutional sanctity, which is fair
trial and natural justice.
However, the grundnorn by its special nature
provides for pre-trial rights, trial rights as well as post trial rights[1].
These rights are very crucial in a trial both in civil and criminal
proceedings.
These rights include:
Right
to life[2]
The right to life is considered as one of the
crucial human right as it is deemed the supreme human right and a foundation
for other human rights, as none of the other rights would have any value or
utility without it. If a man has no life, there is nothing left to human dignity,
fair hearing, and the protection of human rights cannot be achieved without respect
for the right to life. Thus, the protection of the life is therefore, an
essential pre-requisite to the full enjoyment of all other human rights.
The right to life is provided for and
guaranteed under Sec. 33(1) of the 1999 constitution which states that:
‘Every person has a right to life, and
no one shall be deprived intentionally of its life, save in execution of the
sentence of a court in respect of a criminal offence of which he has been found
guilty.’
Subsection 2. Provides that:
‘A person shall not be regarded as
having been deprived of his life in
contravention of this section if he dies as a result of the use to such
extent and in such circumstances as are permitted by law of such force as in
reasonably necessary;
(a) For
the defence of any person from unlawful
violence or for the defence of Property;
(b)In
order to effect a lawful arrest or prevent the escape of a person lawfully detained;
(c) For
the purpose of suppressing riot, insurrection or mutiny.
Life is sacrosanct and deliberate killing is
abhorred in all societies all over the world. Everyone is entitled to respect
for his or her life and safety. Police officer or soldiers may not resort to
lethal force such as firing life ammunitions at people unless their lives or
the lives of others are in imminent danger, and less extreme measures are not
available to avert the danger.
In Aliu
Bello &ors V. A.G. of Oyo State[3],
the action arose as a result of unlawful execution of one Nosiru Bello. Nosiru
Bello had been convicted of armed robbery by the high court of Oyo State and
sentenced to death. He filled an appeal against the conviction but while the appeal
was still pending before the court of appeal, the A.G. of the state recommended
his execution and this was dully carried out. An action for damages was brought
by his defendants. The trial court declared the execution illegal and this was
confirmed by the court of appeal and later by the Supreme Court which also held
that the premature execution constituted an infringement on the deceased fundamental
right to life.
In the case of John Agbo V. The State[4],
the appellant, a police constable, escorted the driver of a magistrate he was
attached to as an orderly, to deliver some bags of cement from Enugu to
Arochukwu. After the delivery, on their way back, at a place called NdiUduma
Awoke, Ohafia junction near the Ohafia army Barracks, the road was narrow and
there was a Peugeot 504 Saloon Taxi cab driven by the deceased, parked on the
left side of the road, but on his own right side in order to discharge some of
his passengers. The driver of the van in which the appellant was travelling,
according to him, slowed down to enable him pass the said taxi cab. At this
stage, the appellant jump down from the van and went to the deceased and asked
why he blocked the road with his own car. An argument ensued between the
appellant and the deceased. It was in this course that the appellant was said
to have shot the deceased with the pistol which he was carrying with him. He
was held to have breach the deceased person’s right to life. His appeal was
disallowed and his death sentence was reaffirmed by the Supreme Court.
The constitution however recognises some
exceptions to the right to life as it was stated In Kalu V. The State[5],
Where the supreme court of Nigeria held that the right to life in Nigeria law
is not absolute but qualified[6].
The first is the execution of a lawful sentence of a court of law in Nigeria in
respect of a criminal offences; for instance, an armed robber sentence to death
by a court of law, if death occurs as a result from the use of allowable force
in self-defence or defence of another person from unlawful violence or the
defence of one’s property; or in order to effect a lawful arrest or to prevent
the escape of a person lawfully detained or for the purpose of suppressing
mutiny[7].
Sec. 34(1) of the constitution of the Federal
Republic of Nigeria 1999 as amended, states that:
‘every individual is entitled to respect for
the dignity of his person, and accordingly;
(a) no
person shall be subjected to torture or to inhuman or degrading treatment.’
Human dignity is inviolable and it must be
respected and protected. There is right to dignity which an accused is entitled
to before the trial particularly at the police custody shortly when he is
arrested. There is another right to dignity to be enjoyed by the accused at the
prison after trial if he is convicted and sentenced to imprisonment.
The police however, has the power to arrest
especially when on a commission of an offence or upon reasonable believe that
an offence is about to be committed. Yet the fact still remains that such
arrest must be in compliance with the provision of the constitution. A suspect
must be treated with utmost respect and dignity. He must not be handcuffed or
leg-chained or be in an unnecessary restrains except where there is a
reasonable apprehension of violence or of an attempt to escape. He may be
restrained if it is considered necessary for his safety. The arresting officer
is however expected to take suspect to a police station upon arresting as to facilitate
quick access to justice but this provision is often breached than complied to
by the Nigerian police.
The constitution however went ahead to state
what will not amount to force labour which includes:
(a)any labour required in consequence of the sentence or order of the
court;[9]
(b) any labour required of member
of a police armed force of the federation or the Nigerian Police force in
pursuance of their duties as such;[10]
(c)in the case of a person who has conscientious objection to service in
the armed forces of the federation, any
labour required instead of such services;[11]
(d)any labour required which is reasonably necessary in the event of any
emergency, or calamity threatening the life or well-being of the community;[12]
(e) any labour or service that form part of ;[13]
(f) normal communal or other civil obligation for the well-being of the
community;[14]
(g) such compulsory national service in the armed forces of the
federation as may be prescribed by an act of the national assembly;[15]
(h) such compulsory national service which part of education and
training of the citizens of Nigeria as may be prescribed by an act of the
national assembly;[16]
Right to personal
liberty[17]
Sec. 35 of the constitution
of the federal republic of Nigeria, 1999 as amended guarantees the right to
personal liberty and provides that every person shall be entitled to his
personal liberty.
There are also provisions for arraignment of a
person detained by a court of law within a reasonable time[18].
Reasonable time is defined to mean a period of one day if there is a court of
competent jurisdiction within a radius of forty kilometers or a period of two
days in other cases. A longer period can only be allowed if the court considers
it reasonable.
The constitution also recognizes the right to
bail of any person charged to court on allegations of criminal offence.
However, certain factors are to be put into
consideration in the grant of bail application and these factors includes;
1. The
nature of the offence
2. The
severity of the punishment
3. The
criminal history of the accused; as in the case of Eyu V. The state[19]
4. Likelihood
of the accused committing other or further offences while on bail
5. Likelihood
of the accused interfering with the investigation of the offence. See Dantata V. Police[20]
6. The
probability of the delay in trial
7. Likelihood
of the accused jumping bail and not appearing to stand trial.
However, sec. 35(1) (a)
of the constitution provides for the circumstances under which the right maybe
deprived of individual. The circumstances include:
(a) Execution
of a sentence order of a court in respect of a criminal offence of which he has
been found guilty;
(b)By
reason of his failure to comply with the order of the court or in order to
secure the fulfilment of an obligation imposed upon him by law;
(c) For
the purpose of bringing him before a court in execution of the order of a court
or upon reasonable suspicion of him having committed a criminal offence, to
such extent as maybe reasonable necessary to prevent his committing of another
criminal offence;
(d)In
the case of a person who have not attained the age of 18 years, for the purpose
of his education or welfare;
(e) In
the case of a person suffering from infectious or contagious disease, person of
unsound mind, person addicted to drugs or alcohol or vagrants, for the purpose
of their care or treatment or protection of the community; and
(f) For
the purpose of preventing the unlawful entry of a person into Nigeria or effecting
the expulsion, extradition or other lawful removal from Nigeria of any person.
Right to fair hearing[21]
By
the provision of sec.36 (1) of the constitution of the federal republic of
Nigeria, 1999, fair hearing is not only a common law right but a constitutional
right. The rationale behind it is that, in determination of his civil and
obligation, a person is entitled to fair hearing within a reasonable time by
the court or other tribunal established by law.
In the same vein, fair hearing requires the
observance of the twin pillar of the rules of natural justice which are:
Audi alteram partem,[22]
Nemo judex in causa sua,[23]
Fair hearing means fair trial; that is a trial
conducted according to all legal rules formulated to ensure that justice is
done to the parties to the cause. All accused person standing trial on a
criminal charge should be accorded a fair hearing during the trial.
Fair hearing envisages that the present
parties to a case be given opportunity to prevent their respective cases
without any hindrance from beginning to the end. It also envisages that the
court or tribunal hearing the parties’ case should be fair and impartial
without showing any degree of bias against any of the parties.
In Tony
V. State,[24]
the refusal to adjourn a case and the refusal to determine the appellant’s
claim was a fundamental breach of the fundamental right to right to fair
hearing, and that vitiated the entire proceedings however, well conducted.
Furthermore, by the provision of sec.36 of the
constitution, under the fundamental right procedure embodied in the
constitution, there is a presumption of innocence in favour of an accused
person, but the burden of proof is on the prosecution to prove the essential
ingredients of the offence the accused is charged with.
However, it can be further stated that once a
trial has given a party an ample opportunity to defend himself, and the party
does not avail himself of the opportunity, then the party cannot complain that
he was deprived of the right in him by section 36(4) and (6) of the 1999
constitution. In Ogunsanya V. State,[25]
the appellant was given opportunity to defend himself but he failed to use that
opportunity. In the circumstances, he could not complain of denial of fair
hearing.
. In Torri v. National Park Service of Nigeria ‘The right to fair
hearing is described as an extreme fundamental right in the constitution and
the breach thereof has its implication on the proceedings. Every person charged
with a criminal offence is entitled to be heard. This right is inalienable and
an indispensable requirement of any judicial decision. However, fair hearing is
not some kind of abstract principle. In Uwazurike
v. Attorney-General of the Federation the principle of fair hearing is
described to entails a trial done in accordance with the rules of natural
justice. Natural justice in the broad sense is justice done in circumstances
which are just equitable and impartial. Fair hearing is really in the procedure
followed in the adjudication of a case and not in the correctness of the
decision.
Presumption
of innocence[26]
The
Presumption of innocence, or sometimes
expressed in latin Ei incumbit probation
qui decit, non qui negat,[27]
has been defined as “a principle
which requires the government to prove the guilt of a criminal defendant and
receives the defendant on any burden to prove her innocence.
Sec, 36(5) of the constitution provides
that:
“Every
person charged with a criminal offence shall be presume to be innocent until he
is proven guilty.
Provided
that nothing in this section shall invalidate any law by reason only that the
law imposes upon the person the burden of proving particular facts”.
The accused in criminal proceeding must be
presumed innocent until the court pronounces him guilty. For this is to happen,
the prosecution must prove beyond reasonable doubt to show the guilt of the
accused.
Right of the accused to be promptly
informed of his offence[28]
By the virtue of sec. 36(6) (a), a person
charged with criminal offence shall be entitled to be ‘informed promptly’ in
the language he understands, and in detail, of the nature of the offence. The
right that the accused must be informed promptly is an obvious extension of the
well-known common law rule that once a person is arrested, he should be
informed that he is arrested for a particular reason.
The rationale behind informing the arrested
person of the reasons of his arrest is to enable him realise that his personal
liberty is lawfully interfered with while reason for informing him about the
charge against him is to enable him prepare his defence. Insufficiency of
details, like failure to furnish grounds for an arrest, is not a mere matter of
procedure which can be cured by appropriate remedy; its effect may invalidate
the trial and any conviction resulting from it. It is also a violation of the
right to have a fair trial to convict a person of an offence which he is not
charged with.
Nwaobasi v State the duty to proof
beyond reasonable doubt only requires the prosecution to provide sufficient
admissible evidence that would prima facie establish that it was act/acts of
the person accused and no other person else that was the cause of the killing
or death of the deceased. Such evidence must exclude other reasonable
possibilities of acts that could be attributed as the cause of the death or
killing in question and therefore call for explanation from the person. For the
accused person to be proved guilty of an offence, the evidence must show or
establish a direct link between the act/acts of the deceased person and the
death in question. Also, the act/acts of the person presumed innocent must have
been directly connected to the death of the deceased.
Right to adequate time and facilities to prepare for
his case[29]
A person charged with a criminal offence
is “entitled to be given adequate time and facilities for the preparation of
his defence”. It is after the person would have been told of the charges
against him that the issue of time and facilities for preparing his defence
would arise. Consequently, this aspect of fair hearing has been argued in
Nigeria court on several occasions. The contentions have tended to centre on
the request on the part of the accused to get an adjournment in order to
consult or obtain the service of a counsel or to be able to invite witnesses to
court for his defence.
In Ugwu
v The State it was said that the opportunity to defend an allegation is a
cardinal rule of fair hearing and an accused charged with an offence has the
right to present his defence. Therefore an accused person is entitled to
cross-examine the prosecution witnesses and call witnesses to give evidence for
the defence.
In Gopka V. I.G.P[30], where the accused was brought to court under a bench warrant to stand trial for offences of stealing and fraudulent accounting, the applied for an adjournment to enable him to retain the service of a counsel to defend him. A very short adjournment was granted to him. At the resumed hearing, his counsel was not in court then he was subsequently convicted. On appeal, there was evidence before the court that any available counsel would have had to travel to the court from the nearest town, a distance of about 23 miles to the court, and hence, the short adjournment was to enable him engage the services of a legal practitioner.
In Gopka V. I.G.P[30], where the accused was brought to court under a bench warrant to stand trial for offences of stealing and fraudulent accounting, the applied for an adjournment to enable him to retain the service of a counsel to defend him. A very short adjournment was granted to him. At the resumed hearing, his counsel was not in court then he was subsequently convicted. On appeal, there was evidence before the court that any available counsel would have had to travel to the court from the nearest town, a distance of about 23 miles to the court, and hence, the short adjournment was to enable him engage the services of a legal practitioner.
However, it is worthy to note that the issue
of an adjournment is a matter within the discretionary powers of the court
which the court must exercise judiciously. It is incumbent on the applicant to
satisfy the court that the adjournment is necessary. Every application for
adjournment would be considered on its own merits and within the circumstances
of the particular case. The court cannot therefore be bond on a previous
decision to exercise its discretion in a particular way.
One of the crucial principles in the
administration of justice is that, a party to a suit must have a legal
practitioner of his own choice to defend his interest in any case or matter.
This was strongly back up with the provision of sec.36 (60(c) of the
constitution of the federal republic of Nigeria 1999, as amended expressly
stated that:
“an accused person shall be entitled to defend himself in person or by a
legal practitioner of his own choice”.
Although, the constitution is silent on the
need for compulsory legal representation of a person charged with a capital
offence. However, the constitutionality of the mandatory legal representation
foe capital offences have been judicially tested and pronounced upon in the
court of law. In the case of Josiah V. State[32],
an accused person was charged with the offence of armed robbery and murder.
Although, he was not represented by a counsel, the trial went ahead and
convicted him. On a further appeal to the Supreme Court, the Supreme Court held
that failure of the appellant to be represented by a counsel of his own was a
denial for fair trial. The trial was declared a nullity.
In the matter of Awolowo V. Minister of internal affairs[33],
an English barrister had been granted a warrant to represent the plaintiff as
defence attorney in a criminal charge of treasonable felony. Upon his arrival,
he was refused entry at the port of entry under section 13 of the Immigration
Act[34].
The plaintiff contended that his right to fair hearing and to a legal
practitioner of his own choice has been breached. The court gave the decision deploying
the golden rule which was one of the canoes of interpretation of statutes. It
was held that legal practitioner of his own choice was interpreted to mean a
legal practitioner that has the right of entry and exit into Nigeria.
: Solola
v. State deals with a valid arraignment of an accused person and the taking
of his plea. The object of an arraignment in terms of Section of the Criminal
Procedure Law is to ensure that he understands the charge against him and so as
to enable him to make his defense, the provision are mandatory and not
directory as they preceded the word “shall” and an accused person is being
arraigned. The requirement therein have been specifically provided to guarantee
the fair hearing of an accused person and to safeguard his interest at such a
trial, failure to satisfy any of them will render the whole trial incurably
defective null and void.
Where therefore the plea of an accused person was defectively taken, this will amount to a violation of the statutory provision of Section 125, and the test as to whether the provisions of the section had been complied with is an objective one.
Right to examination of witness[35]
Where therefore the plea of an accused person was defectively taken, this will amount to a violation of the statutory provision of Section 125, and the test as to whether the provisions of the section had been complied with is an objective one.
Right to examination of witness[35]
This right is preserved under section 36(6)
(d) of the constitution of federal republic of Nigeria 1999, as amended. The
right of examination of witness can be done by the accused in person or by his
counsel. This right affords an accused person to cross examine the witnesses to
the prosecution as well as procuring witness to testify on his behalf. In Tulu V. Bauchi Native Authority[36],
the trial court did not allow the accused person to cross examine the
prosecution witness. On further appeal, the Supreme Court held that the trial
court’s action amounted to an infraction of the accused person’s right to cross
examine the witness.
The Supreme Court in the case of Oforlete v The State, citing Black
Stone’s Criminal Practice 1991, decided that the effect of failure to cross
examines a witness upon a particular matter amounts to tacit acceptance of the
truth of the witness evidence. The court further stated that: ‘A party who
fails to cross examine a witness upon a particular matter in respect of which
it is proposed to contradict him to impeach his credit by calling other
witness, tacitly accepts the truth of the witness’s evidence in chief on the
matter, and will not thereafter be entitled to invite the jury to disbelieve
him in that grad. The proper cause is to challenge the witness at the witness
box or at any rate, to make it plain to him at that stage that his evidence is
not accepted. In Nkebisi v State,
the first accused person was employed as a guard at a fish pond, he was
subsequently removed and replaced with the deceased; he was dissatisfied and
threatened to kill the deceased in the presence of people. The deceased
thereafter disappeared and was not found again. The accused person were
arrested and arraigned in the high court of Enugu State on a charge of murder,
a relative of the deceased gave a graphic account of how the accused persons
killed the deceased and threw his body in the river. The trial court found them
guilty convicted and sentenced them to death. Aggrieved, the accused persons
appealed to the Court of Appeal where their appeal was dismissed. Yet
aggrieved, they appealed to the Supreme Court but it was dismissed. It was held
that, a case is not lost on the ground that those who are witnesses are members
of the same family or community, what is important is their credibility and
that they are not tainted witnesses. The mere fact that witnesses are relations
of the deceased does not mean that they are not competent witnesses for the
prosecution. Evidence of a relation can be accepted, if cogent enough to rule
out the possibility of deliberate falsehood and bias. There is no law which
prohibits blood relations from testifying for the prosecution where such a
relation is the victim of the crime committed. In the instant case, the
evidence given by was cogent; therefore the trial court rightly relied on it to
convict the accused person.
Sec. 36(6) (e) of the 1999 constitution provides
that where the accused person does not understand the language of the court, in
which the proceedings are to be conducted, he is entitle to the assistance of
an interpreter free of charge.
Such interpretation must be full, accurate and without any distortion.
It is for the accused person or his counsel to notify the court that he does
not understand the language in which the trial is being conducted, else, it
would be presumed that there is no complaint in that respect.
In Sampson
Uweakweyhinya V. The State[38],
the Supreme Court held that if the accused person does not ask for an
interpreter, the failure to supply one would be treated as a procedural
irregularities and a conviction may only be set aside if it has led to a
miscarriage of justice. However, if a counsel represents the accused, the
objection must be taken at the trail in the first instance and not on appeal.
Right of an accused to obtain a copy of the judgement of his case[39]
By the virtue of section 36 (7) of the 1999
constitution, the trial court or tribunal is enjoyed to keep records of the proceedings
of a person tried in any criminal offence. A concomitant right is afforded an
accused to obtain directly or through any person authorised by him in that
behalf a copy of that judgement within
seven days of the conclusion of the trial. The number of days required here
would start to run immediately judgement has been delivered.
It should be noted that the provision of
section 294 (1) 0f the 1999 constitution, which enjoys a court to deliver its
judgement not later than 90 days after the conclusion of the evidence and final
address. It is after this that the accused person is entitled to copies of the
proceedings within seven days.
Retrospective legislation is laws or rules
made to have effect at a date earlier than when the law or rule itself are
promulgated or came into effect.
The constitution frowns at retroactive or
retrospective legislation. By the virtue of section 36 (8), a person cannot be
held guilty of a criminal offence on account of an act which did not constitute
a crime as at the time it was done, nor can a penalty be imposed which was not
in existence as at the time of the commission of the crime.
This section was fortified with section 4 (9)
of the 1999 constitution which states that: “notwithstanding,
the foregoing provision of this section, the national assembly or house or
assembly shall not, in relation to any criminal offence whatsoever, have power to
make law which shall be retrospective effect”.
The offence and penalty must be known to
law[41]
By the virtue of section 36 (12) of the 1999
constitution, it states that:
“subject
to other provision of the constitution, a person shall not be
convicted of a criminal offence unless the offence is defined and the penalty
therefore is prescribed in a written law; and in this subsection, a written law
refers to an act of the national assembly or a law of a state, any subsidiary
legislation or instrument under the provision of a law”.
This concept is expressed in a Latin as Nulla poena sine lege,[42]
In Ifeagwu
V. Federal Republic of Nigeria,[43]
where the alleged crime charged was fraudulently writing credit facilities
which was not an offence in the law under which the accused was charged, the
court held that “it is sacrosanct that no person shall be liable to be tried or
punished in any court of this land except under the clear and unambiguous
provision of a written law”.
[1] Chapter IV; Sec. 33-46 of the constitution of
the federal republic of Nigeria 1999 as amended
[2] Sec. 33 of the 1999 constitution
[3](1986)
5 NWLR (pt 45) P. 828. S.C
[4] (2006) 13 NWLR (pt.977) p. 545
[5] (1998) 13 NWLR (pt. 583) 531 S.C
[6]Omotola
op cit at P.142
[7] Sec. 33(2) a-e of the 1999 constitution
[8] Sec.
34 of the 1999 constitution
[9] Sec. 34(2)(a) of the 1999 constitution
[10] Sec.
34(2)(b) of the 1999 constitution
[11]
Sec.34(2)(b) of the 1999 constitution
[12] Sec.34(2)(d)
[13]Sec. 34(2)(e)
[14]Sec. 34(2)(f)
[15]Sec. 34(2)(g)
[16]Sec. 34(2)(f)
[17]Sec. 35 of the constitution of the federal republic of Nigeria,1999 as
amended
[18]Sec. 35(5)(a) and (b) of the constitution
[19](1998) 2 NWLR (pt.78)
[20](1958) NWLR 3.
[21]Section 36 of the constitution of the federal republic of Nigeria 1999,
as amended
[26] Sec
36(5) of the 1999 constitution
[29] Sec.
36(6)(b) of the 1999 constitution
[30]
(1961) 1 All NLR, 423
[33] (1962) LLR 177.
[39] Sec. 36 (7) of the 1999 constitution
[42] A person cannot be in jeopardy of an offence
alien to the written law of the state
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