This right may avail an accused where it is manifestly clear that the prosecution has failed to prove the guilt of the accused.
NOTE: On appeal, the Appellant Court can comment on the silence of the accused person-GARBA v. THE STATE
DETRIMENTS OF THE RIGHT TO SILENCE
Implied admission of Guilt-S.181 of the Evidence Act.
Where he remains silent, it means he is resting his case on that of the Prosecution.
And as such, must accept responsibility for his action as inferred from his conduct in the prevailing circumstances. MBANG v. STATE
In IGABELE v. STATE: the Supreme Court, warned that it could be RISKY to hold on to that right where an explanation from him could have made a difference.
NOTE THE FOLLOWING:
The right to silence is a constitutional right which commences at the close of the Prosecution’s case when the accused person is called upon to make his defence.-
S. 36(11) has to do with Right to silence during Trial while S. 35(2) is right of a suspect to remain silent after arrest.
The right to silence does not apply during the stage of taking plea.
Where the accused person keeps silent after charge is read and explained to him, the Court will determine whether his KEEPING MUTE was out of MALICE or as a result of INSANITY
NB == Right to silence should not be confused with a No Case Submission
Venue of the CT – in an uncompleted building in the outskirts of Lagos. Constitutional issue in relation to the venue – wherever the judge sits is the courtroom (e.g. in trying to de-congest the prisons, the High CT judges even sit in prisons. It is the judge and not the building per se that constitutes the CT for the purpose of the proceedings – provided all the parties in the matter are aware of the venue. Judge does not have to give reasons for the change of venue (not for lawyer to question this)– judge has discretion as to where to sit. But would be ridiculous for the Ct to take proceedings to his bedroom
WEEK 13- TRIAL 1-ATTENDANCE OF PARTIES AND ARRAIGNMENT
WHAT IS TRIAL - A judicial examination of witnesses. Criminal trial starts with ARRAIGNMENT and ends with SENTENCING. Trial includes arraignment, examination in chief of witnesses. Cross examination, re-examination, tendering of exhibits, addresses of counsel, judgment, allocutus and sentence
B-PRELIMINARIES TO TRIAL
Sittings of the court-refer to week 3. Courts sits at 9am. Mon-Sat are juridical days. In practice, CT does not sit on Saturdays. In Lagos (some magistrate CTs) Sat is sometimes a non-juridical day) - see s40 MCL (Lagos) 2009: designates some courts to sit on Saturday or some not to sit on Saturdays. Sunday and public holidays are non-juridical days. CT can only sit on juridical days. With the agreement of counsel, courts can sit on non-juridical days. See Ososanmi v COP (1952): The defence counsel said he could get vital witnesses in the case on a non-juridical day. The CT agreed to it and asked that trial be held on a non-juridical day. The defence was convicted. Defence then filed an appeal based on the fact that the court sat on a non-juridical day. Held that proceedings were conducted with the agreement of parties so it was valid
Publicity of trials-refer to week 11&12. S36(4) Constitution, s203 CPL, s225(1) CPCL, s200 ACJL. Exceptions: CT may sit in private where statute authorised it e.g. juveniles. See 36(4) Constitution: the public may be excluded on grounds of public policy, public decency or expediency. S203 CPL, ss25(2) CPCL, s201 ACJL. Where the Minister satisfied the CT that it will not be in the public interest for the proceedings to be held in public, it will be held in camera: Mandara v AG Federation (1984) 4 SC 8.
Where the evidence of a person who has not attained the age of 17 is to be held in relation to the offence against morality: see s204(2) CPL. This will be held in camera.
Public may be excluded in the interest of public safety, defence, public order, and public morality: FRN v Asari-Dokubo.
Welfare of person (s36(4) Constitution) (A)PRESENCE OF THE ACCUSED PERSON AT THE TRIAL
The accused MUST be present at every sittings of the Court from arraignment to sentence. There is no trial in absence of an accused in Nigeria: S. 210 of the CPL, S. 153 of the CPCL, S. 208 of the ACJL and ADEOYE VS.THE STATE (1999). Trial is a nullity if the accused is trialled in absentia
EXCEPTIONS WHERE AN ACCUSED’S PRESENCE WILL BE DISPENSED ARE:
He misconducts himself in the Court by interrupting the proceedings thus rendering his trial in his presence impracticable/impossible: S.208 ACJL; S.210 CPL; S.153 CPCL. E.g. –violence etc-note that APPEARANCE or REPUTATION is irrelevant.
He has pleaded guilty in writing and or appears in court and pleads guilty through his counsel represented by a counsel on a Charge whose penalty does not exceed N100 fine or 6 months imprisonment or both: S. 100 of the CPL (SOUTH ONLY)
Where the accused person is of unsound mind or he stands mute before the CT: s223(2) CPL, s320(2) CPCL & 217(2) ACJL. Absence of the accused person in the enquiry as to the sanity of the accused is allowed.
The appearance of an accused person against whom A SUMMONS is issued may be dispensed with if he has legal representation or pleads guilty in writing: S. 154(2) of the CPCL (NORTH ONLY). The accused person must be present for SENTENCING—S.154(3) CPCL
ORDERS THE COURT CAN MAKE IF AN ACCUSED IS ABSENT WITHOUT COGENT AND COMPELLING REASONS
Issue a Bench warrant for his arrest if he is already on bail
Issue a production warrant to the Prison officers to bring him to the Court if the accused is in Prison custody.
Issue a warrant of arrest against the accused person (If in respect of summons -s.96 CPL)
Revoke his bail if the accused has been admitted to bail.
(B). ABSENCE OF THE COMPLAINANT FOR THE TRIAL: When the Complainant (Police prosecutor or law officer, office of the AG) is absent in Court for the trial; the Court may do any of the following: S. 236 of the ACJL, S. 280 of the CPL and S. 165 of the CPCL.
Dismiss the action if satisfied that the prosecution had adequate information of the trial. In that case, the accused will be discharged for want of diligent prosecution
If a cogent reason is given for the absence, the Court will adjourn the hearing to another date. E.g. an emergency happened on the way to court
If it is a NON CAPITAL OFFENCE and the reason for absence is not cogent, the court will proceed with the trial
If it is a CAPITAL OFFENCE, court may adjourn because judges are reluctant to dismiss such matters- UDOFIA V. STATE (Court discountenanced complainant’s request for adjournment in a capital matter)-CONVICTION QUASHED
Issue a bench warrant for the arrest of the accused person
Order that the complainant must be present at the next adjourned date.
Dismiss the case
Additionally, order for cost from the parties
Order that notices be issued to the Complainant to attend Court otherwise the accused will be discharged.
S. 237 of the ACJL and S. 282 of the CPL.
Adjournment may be:
May be at the instance of the Court, at the instance of the prosecution, at the instance of the accused or his counsel, at the discretion of the CT
Prosecution to announce appearance first – because prosecution initiated the case
Thereafter counsel to the accused to announce appearance
There is mandatory legal representation for capital offences: s352 CPL, s186 CPCL, Josiah v State, Udofia v State
D) ATTENDANCE OF VITAL WITNESSES
Both parties are entitled to determine the number of witnesses to call.
No particular number of witnesses is required to establish a case nor must the Prosecution call all the witnesses listed in his information. It can call only one witness if it is sufficient. –
ADAJE VS. THE STATE: both parties didn’t call a particular witness. CT of Appeal berated the court and prosecution and defence counsel as there is no way justice could be done without calling that witness. The witness was vital in deciding whether or not the accused killed the victim. Accused alleged that he was held down and someone was told to beat him up (this person was not called).
JAMMAL V. STATE
The Court may compel the attendance of witnesses by issuance of any of the following:
Witness Summons on any witness
Warrant of Arrest if a witness has earlier disregarded a Witness Summons
Subpoena which may be subpoena duces tecum which is to order a witness to produce document(s) only or subpoena ad testificandum which is to order a witness to come to Court to testify only.
S. 188 of the CPL, S. 179, 186 of the ACJL and S. 162(2) of the CPCL. NB: In practice, the above processes are issued upon an application (may be a written letter addressed to the Court Registrar or by a Motion Ex Parte) by the party needing a witness.
(E) ATTENDANCE OF COUNSEL IN COURT
Every person who is charged with a criminal offence shall be entitled to defend himself in person or by a legal practitioner of his choice – section 36(6)(c) of the 1999 Constitution; section 211 of the Criminal Procedure Law (CPL); Awolowo & Ors v. Usman Sarki & Ors (1962) L.L.R. 177.
Where a counsel is unable to attend, the court must be informed of the cogent reason to justify his absence; or another counsel is briefed to take up the matter. The danger inherent in counsel being absent in court without reasonable excuse is the exposure of the accused to the task of defending himself – Shemfe v. The C.O.P (1962) All NLR 87; Gokpa v. The C.O.P. (1961) All NLR 424.
In a capital offence, the accused shall be assigned a counsel to represent him. – Section 186 of the CPL, and section 352 of the CPL. In Josiah v. The State (1985) 1 NWLR (Pt. 1) 125, where (in a capital offence) the accused was not represented by counsel, the court held that it amounted to denying him a fair trial; and this vitiated the trial.
It should be noted that under sections 6 and 8 Legal Aid (Amendment) Act 2011, an accused person whose annual income does not exceed N18,000 is entitled to free legal representation in respect of criminal proceedings.
There is the need for a counsel to be present in court and conduct his case diligently especially where an accused is charged with a capital offence. It has been held by the Supreme Court that where a counsel does not appear to conduct his case or absents himself when it matters, e.g. in a murder charge, a conviction of the accused, who is forced to conduct his case may not hold; for it will amount to a denial of fair trial – Udofia v. The State (1988) 7 S.C. N. J. 188; Okojie & Ors. v. The State (1989) 1 NWLR (Pt. 100) 642, where the accused were charged with armed robbery. During the trial their counsel did little or no cross examination of the prosecution witnesses, despite damaging incriminating evidence against the accused persons and they were convicted. The Supreme Court lamented on the manner the case was handled, more so, when it was a matter of life and death.
DUTIES OF COUNSELS AND PRESIDING JUDGES IN CRIMINAL TRIALS
(A.) DUTIES OF A PROSECUTING COUNSEL
i) To be candid and fair, not trying to secure conviction by all means.
R. 37 (4) of the RPC, ENAHORO VS. STATE.
ii) He is not to withhold the existence of any adverse decision on a point of Law favourable to the accused. –ANANI VS. R.
iii) He must make available to the accused person evidence favourable to the accused.
STATE VS ODOFIN BELLO;
Rule 32 RPC; R v. Sugarman
iv) A prosecutor must be present at the trial of the accused at any time the case comes up: R. 14 RPC.
v) Duty not to forum shop/to avoid forum shopping-It is unprofessional for a Prosecutor to look for a convenient court where the accused should be tried: Ibori v. FRN
vi) The Prosecuting Counsel has a duty to call and examine all material witnesses whether their testimony would be favourable to the case of the Prosecution or not.
vii) Duty to conduct case with due diligence. Counsel must be fully prepared to go on with the case and not seek unnecessary adjournment thereby wasting the court’s time.
viii) Duty to make available to the accused person proof of evidence: UKET V. FRN
ix) Duty to avoid frivolous institution of criminal proceedings R. 37 (5) RPC provides that a public prosecutor shall not institute a criminal charge unless the charge is supported by probating evidence.
x) Prosecution should not be too relaxed when a plea of guilty is entered. He must furnish the court with full facts-OMOJU V.FRN.
(B.) DUTY OF THE DEFENCE COUNSEL
He is not to return the brief of a person charged with a capital offence. R. 24(1) of the RPC (It is the duty of a lawyer to accept any brief in the court in which he professes to practice provided the proper professional fee is offered unless there are special circumstances which justify his refusal) and R VS. UZORUKWU. Even where accused confesses to guilt to his counsel, it is unethical for counsel to disclose same or to withdraw from handling his defendant.
He is to undertake the defence of a person charged with a capital offence competently and with dedication: 37(1) &(2) of the RPC and JOSIAH VS. STATE. In UDOFIA VS STATE, it was held that a youth Corp Member has no experience to be assigned to defend an accused on a capital offence. UDO V.STATE; R.14&16 RPC.
Duty to be present in court. The Defence Counsel must be personally present in court especially where the charge against his client is one for murder: Rule 37(1)
When client discloses a fact to a counsel, it is unethical to disclose it to anyone without the express permission of the client, -R. 19 RPC
Where the accused person admits guilt and confessed to having committed the offence the Defence counsel should not put up/cook up adverse/false evidence to show the accused as innocent: R.15(3) RPC
(C) DUTY OF A PRESIDING JUDGE
The Judge must be an impartial arbiter. The Judge or Magistrate in a criminal case must see himself and be seen as a neutral, unbiased and fair umpire
Not to interject too much or put damaging questions to the accused leading to conviction. OKODUWA VS. THE STATE,ONUOHA VS. THE STATE, USO VS. COP.
The Judge has a duty to grant all the parties equal right of audience to the court
The Judge must be fair and respectful to the Bar.
Court must ensure justice is done when a plea of guilty is entered and must ensure that he truly intended to plea same before sentence-KAYODE V.STATE
(D) DUTIES OF A COURT REGISTRAR
1. The Registrar accepts all processes for filing.
2. Ensure that the case file is ready and bring it to the attention of the Judge before the date for hearing.
3. Ensure that hearing notices and other processes are served on all the parties.
4. The Registrar makes records of proceedings available to the parties upon demand.
5. Ensure the perfection of a bail bond where necessarily.
6. For death sentence, the Registrar shall as soon as possible forward copies of the certificate issued by the Judge to the Prison Officer as well as the Sheriff.
7. Administer oath
COMMENCEMENT OF TRIALS/ ARRAIGNMENT
Trial commences once the accused person pleads to the Charge. –
NB-Plea is fundamental to the jurisdiction of the court when the accused has not pleaded to the charge, the court cannot assume jurisdiction-NWAFOR OKEGBU V.STATE.
Prosecutor files the charge at the registry of the CT after obtaining leave (where necessary)
The Registrar of the Court calls out the names of the parties to the case
The accused is required to proceed to the dock
The accused shall be placed before the court unfettered – the accused presented to the Court without any restraints such as handcuffs, leg chains etc
The Registrar/officer of court reads out the charge or information to the accused to the satisfaction of the court
The accused is required to plead instantly to the charge
Counsel to the accused cannot plead on behalf of his client: R v Pepple: the trial was in progress when the counsel announced to the CT that the accused wants to change his plea to guilty which the CT recorded and convicted the appeal. This was quashed on appeal since it was counsel and not the accused that entered the plea
The charge is read and explained to the accused and his plea taken, the trial is a nullity if this it not done: IGP v Rosseck, Kujbo v State, s215 CPL
The Court shall record the plea entered by the accused: Edu v The Srare
PROCEDURE FOR A VALID ARRAIGNMENT
S.215 CPL; 211 ACJL; S.161(1) and S.187(1)CPCL
The accused must be unfettered and placed in the dock (note-exceptions)
The Charge/Information must be read over and explained to the accused in the language that he understands to the satisfaction of court by the registrar or other officer of the court.
The accused will be called upon to plead instantly to the Charge unless there is a good reason not to do so.
NOTE- all the conditions of an arraignment must be done or the Charge to be read in the presence of the defendant’s Legal Practitioner if represented- S. 211 (1) of the ACJL.
Note that where accused does not understand English language, an interpreter must be provided at no cost.
The court must equally RECORD that the charge was fully read and explained- AKPAN v. STATE. NB-failure to do so however will not nullify the trial
EFFECT OF NON-COMPLIANCE WITH THE PROCEDURE FOR ARRAIGNMENT-Failure to comply with the three requirements for a valid arraignment renders the whole trial a nullity. – KAJUBO VS THE STATE; OGUNYE VS.THE STATE;IGP V.ROSSEK(failure to read charge);TOBY V.STATE.
TAKING OF PLEA
The plea must be unambiguous or unequivocal.
Plea is personal as an accused must plead to the Charge himself: ADAMU VS. THE STATE
Any change or alteration in his plea must be done by him and none other.
A legal practitioner cannot plead for an accused/defendant-
R VS. PEPPLE
THE STATE VS. EKPO
Where a Charge Sheet contains more than one Count/ Head of Charge, the accused is to plead separately to each of the Counts in the Charge Sheet in the language he understands and the TRIAL judge must record the plea to each count. Block plea is not allowed. AYINDE VS. THE STATE (1980).
NB-The absence of the accused person’s Counsel during the taking of his plea shall not render his trial void: EFFIOM VS. STATE.
Where several accused persons are jointly charged, EACH accused person must take his plea for himself personally. -ADAMU V. THE STATE (1986)- a plea by one accused person on behalf of other accused persons was held to have rendered the trial null and void.
If an accused person is transferred to another court he MUST plea AFRESH
Where there are several accused persons who speak 20 languages; they need Separate interpreters: EYIDE V. STATE.
NOTE- (EXAMS) However, the charges may be read over and explained once to all the accused persons but they must plead individually to the charges.
A deaf and dumb accused is not prevented from taking his plea. S. 176 of the Evidence Act 2011. The CT shall obtain his plead in a manner understood by him by using sign language, lip reading or writing.
EFFECT OF FAILURE/DEFECT IN PLEA-The trial will amount to a nullity-Amachukwu v. FRN
RECORDING OF PLEA
The plea of an accused is to be recorded as nearly as possible in the language used.
-EDU V. STATE; S.218 CPL.
Failure to add the phrase “it was done to the satisfaction of the court will not render a plea defective-SUNDAY AMALA V.STATE.
Where there are several accused persons, their pleas must be recorded separately on the record of proceedings (CAUSES DELAY-EFCC CASES)
NOTE-failure to record separate pleas shall not vitiate the trial UNLESS it is shown to occasion a MISCARRIAGE of justice-SHARFAL V.STATE
EFFECT OF FAILURE-Failure to record the plea of the accused, the trial is a nullity. -EDE VS.STATE.
INSTANCES WHERE AN ACCUSED PERSON MAY NOT PLEAD INSTANTLY TO THE CHARGE