Essentiality or Otherwise of the Defendant’s Presence in a Criminal Litigation: A Constitutional Right of Fair Hearing
Criminal Litigation in Nigeria commences from the moment a Criminal Complaint is made to any Law enforcement agency (particularly the police force) and will be reduced to the First Information Report (FIR); it can also be instituted through “Direct complaint”. The parties to the Litigation are referred to as litigants and the Defendant as a party to the criminal litigation is a person or persons sued in court as an accused person or suspect of a committed crime.
Abstract
This Article seeks to examine the importance of the presence of a Defendant in a Criminal Litigation so as not to deprive the defendant of his/her Right to a Fair Hearing. It also revolves around the position of the law in a situation whereby there is more than one defendants in criminal litigation and some of the defendants are present in court while one of them is absent or vice versa; can the court try those that are present in court in absentia of other defendants? And it is a trite law that each of the defendants has the right to a fair hearing as construed to all the citizens of Nigeria by the Constitution of the Federal Republic of Nigeria; how do we go about it without depriving anyone from enjoying his or her fundamental right? So as not to deprive anyone from enjoying his/her right, the law provides for ways of tackling this situation. A complainant in a criminal litigation can sever the name of the defendant that is absent in the court by striking out his/her name from the litigation and Trying him/her separately in a separate file, or the Court proceed with the trial in absentia and if the complainant can prove his case beyond reasonable doubt, the court shall deem it fit to convict the defendant in his absentia, but the court can’t sentence him/her in absentia. Therefore, the presence of the defendant is sine qua non in a criminal proceeding.
Constitutional Right of Fair Hearing
In respective of a Citizen’s age, race, position, poor or rich, everyone is entitled to be treated equally and fairly without any form of favoritism, and this is what the principle of fair hearing entails. The Constitution of the Federal Republic of Nigeria been the grund norm upon which its provision is binding on all authorities and persons throughout Nigeria; it provides the fundamental rights that are to be enjoyed by the citizens of Nigeria, which the right of Fair Hearing is inclusive1.
Fair Hearing is a natural justice which is the foundation on which all other fundamental rights hold ground because it is the root and the origin of the administration of justice in judicial or quasi judicial proceeding. Therefore, the right to a Fair Hearing is essential to protect all other fundamental rights and freedoms.
What then is Fair Hearing?
This comprises two words, which are ‘Fair’ and ‘Hearing’. Fair is when something is done equally, justly, and without any form of injustice. On the other hand, Hearing means the ability to hear. In legal parlance, a hearing is a stage in a proceeding whereby parties adduce evidence before the law court to support their case. However, putting the two words together, Fair Hearing means when a judge adjudicates on a case before him while treating both of the parties equally. The concept of fair hearing simply means a hearing where authority is consistently and fairly exercised in line with the fundamental principles of the acceptable manner of due process.
In the case of Arobieke v National Electricity Liability Management Company (2018)2
“Fair Hearing means giving equal opportunity to the parties to be heard in the litigation before a court or tribunal”
Therefore, The test of fair hearing is determined by the conclusion drawn from a reasonable and impartial person who is present at the trial on whether a person who is entitled to be heard before his case is decided, has been given the opportunity of a hearing and where such person is not given fair hearing, such trial would be declared not fair3.
It is imperative to note that; The right to a fair hearing is a procedural right that enables the court or tribunal to arrive at justice in any proceeding and the Nigeria Constitution has the Right to a Fair Hearing as one of its fundamental rights provisions that rest on the twin pillars of justice namely; AUDI ALTERAM PARTEM AND NEMO JUDEX IN CAUSA SU4.
Audi Alteram Partem
This means hearing both sides. Audi Alterem Partem is one of the pillars upon which the right of Fair Hearing stands. A judge must have listened to both parties and must have extensively analyzed everything placed before him by both parties before concluding or making a judgment in respect of the proceeding. This rule was explained by Oputa JSC in the case of Garba v University of Maiduguri5 he said;
“God has given you two ears, hear both sides”
Yes, God has given every one of us two ears, so why should we now listen to one side without listening to the other side? So this stands as a pillar in enabling individuals to enjoy the Right of Fair Hearing
Nemo Judex in Causa Sua
This means “No one should be a judge in his cause”. This is a principle of Natural Justice that provides that a person cannot be judged on a case in which he had an interest. Judges are expected to give judgment with impartiality and without any forms of bias, therefore a judge that has an interest in a case will find it difficult to be impartial and he will be somehow biased in his judgment because a reasonable man with reasonable prudence will not give judgment against himself in a case which he had an interest in, and this will breach and go against the aim of the Natural Justice.
Therefore, the following are encompassed as the Right to a Fair Hearing under the Constitution:-
Pursuant to Section 36 (1-12) of the Constitution of the Federal Republic of Nigeria6provides for and makes Fair Hearing a fundamental right of the citizen of Nigeria.
Subsection 1 of the Section which provides as follows:-
“In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality”
Civil rights, as used in the section mean human rights and not other legal right like contract, tort, etc and the word ‘civil’ is not used in contradistinction to the word “Criminal”7.
Reading this to the section will implies that whenever a matter brought before the court of law or other tribunal is on question relating to human rights, which this matter is brought against any government or authority, the person shall be entitled to a Fair Hearing which must be within a reasonable time.
Subsection 3 of the section provides that the proceeding of a court in respect of the matter mentioned in subsection 1 must be held in public. And I will be right to say that this is put in place to protect the right of Fair Hearing of the parties involved.
Subsection 4 of the section provides that any person charged with a criminal offence shall be entitled to a fair hearing in public within a reasonable time by a court or tribunal. By implication, criminal litigations are to be heard in public8 and must be heard within a reasonable time without any form of unreasonable and unjustly delay of the proceeding.
Subsection 5 provides for the presumption of innocence that any defendant charged with a criminal offence shall be presumed to be innocent until the contrary is proven beyond a reasonable doubt. Therefore, this section kicks against Jungle justice which is against the Natural Justice.
Subsection 6 (Paragraph A-E) conveyed to a person charged with a criminal offence the right to be informed promptly in the language he understands on the details of the nature of the offence he is standing trial and also gives the person the right to prepare for his defense given him adequate time and facilities after the prosecutor tender all his evidence. Also, it gives the person the right to defend himself in person or by a legal practitioner of his own choice, the subsection also gives him the right to examine all the witnesses called by the prosecutor either examining them in person or by his legal practitioner and lastly, the subsection provides that if the person standing trail needs the assistance of an interpreter on the ground that he cannot understand the language used at the trial court, he shall be given an interpreter without a payment.
All these are to been enjoyed by the defendant in a criminal litigation and depriving him of such will makes the trial not fair.
Subsection 7 provides that in respect of any criminal Litigation against a person, the court must keep a record of the proceedings, and the accused person shall be entitled to obtain copies of the judgment in the case within seven days of the conclusion of the case.
Subsections 8 – 12 provide respectively that an accused person cannot be guilty of an offence which by the time he did the act or made the omission didn’t constitute an offence, an accused person also cannot be tried again for an offence which he had earlier been convicted or acquitted and this brings up the doctrine of Double Jeopardy, and also an accused person shall again not be tried for an offence in which he has been granted a pardon by those construed with the power of granting pardon9, it also provides that an accused person shall not be compelled to give evidence at the trial and lastly, it provides that a person shall not be convicted of a criminal offence unless that offence is defined and the penalties are prescribed in a written law And this brings up the legal Marxism NULLA POENA SINE LEGE.
Therefore, a person who is deprived of enjoying all these rights (which is summed up to be the constitutional right of Fair Hearing) in a judicial or quasi-judicial proceeding, such proceeding will be said to be unfair, In view of this, it was held in the case of Adigun v A.G Oyo state10, per Obaseki JSC proclaimed the consequence of a breach of the right to fair hearing succinctly by stating:-
“The right to the fair hearing being a fundamental constitutional right guaranteed by the constitution, the breach of it in any trail or investigation or inquiry and any action on them is also a nullity.”
Commencement of Criminal Litigation11
Criminal Litigation commences when a process is filed in a court of law vested with criminal jurisdiction by a person or an authority. However, a criminal proceeding can be initiated through a “First Information Report (FIR)” or Direct Complaint12.
When a person approaches a police station reporting the commission of a crime, the officer in charge will first determine whether an offence has been committed, and if he finds that an offence has been committed he will follow the stipulated process of arresting either with a warrant or without a warrant and if without a warrant, he will proceed to do more investigation on the case, upon the Completion of the investigation or in the process of the investigation, the police officer will reduce the information or nature of the offence to writing or cause it to be reduced to writing in the stipulated form called “First Information Report”, it will then be filed to the court of competent jurisdiction and thus a criminal litigation commerce.
Criminal Litigation can also be initiated by a direct complaint filed by the victim or his/her legal representative, which contains the nature and information of the offence upon which the defendant is charged to court and afterward, a criminal summon will be issued and must be served to the defendant, to put him on notice that an action has been instituted against him and he is expected to appear in court on the date stated in the summon.
It is pertinent to note that if criminal litigation is instituted by the police through the FIR, then the victim will not be a party to the proceeding but only be referred to as the Nominal Complainant.
Constitutional Right of Fair Hearing vis-à-vis the Presence of the Defendant in a Criminal Litigation
By virtue of Section 36 of CFRN, which provides for the Right of Fair Hearing, which are to be enjoyed by individual citizens of Nigeria. The defendant charged for a criminal offence are to be served with a criminal summon informing him that he has been sued in court and has to appear in court on the date ascribed on the summon, and as for the defendant in custody, a warrant directing the office in whose custody he/she is to bring him/her before the court on the date of the trial. All these processes are to be followed, and if they are in any way not followed, they will deprive the defendant of enjoying the Right to a Fair Hearing.
However, in a situation whereby more than one defendant is charged for an offence, can a Trial Court try other defendants in absentia of one of the defendants?
It is a trite law that a defendant in a criminal litigation must be in court personally. But regarding this question, other defendants are in court, and one of the defendants is absent, and the law is that the defendant must be present to enjoy the Right of a fair hearing.
Every one of the defendants has this right, and they are present in court, and one of them is absent; what do we do in such circumstances?
To determine the position of law regarding this situation, the following legal issue must be analyzed:-
– Whether or not a Trial Court can try a defendant in absentia?
– Whether or not a Trial Court can sentence a defendant in absentia?
Whether or not a trial court can try a defendant in absentia
By virtue of Section 352 subsection 1-4, particularly subsection 4 of the Administration of Criminal Justice Act, 2015. The procedural summary of Subsections one and Two is that when a defendant fails to come to court after being served with the criminal summons, the court shall issue a warrant of arrest to bring the defendant to court. But when the defendant has been granted bail, and he/she fails to come to court on the next adjournment date, the court shall issue a bench warrant to bring the defendant to court.
Now pursuant to subsection 4, it states that-
“Where the court, in the exercise of its discretion, has granted bail to the defendant and the defendant fails to attend Court without reasonable explanation the court shall continue with the trial in his absence and convict him unless the court sees reasons otherwise, provided that proceeding in the absence of the defendant shall take place after two adjournments or as the court may consider fit”
This section provides that the court shall continue with the proceeding in the absence of the defendant after two adjournments, and if the defendant absent has no reasonable explanation, the Court can deem it fit to convict him in absentia unless the court sees reasons otherwise.
In applying this to the situation at hand, the court shall continue with the proceeding in the absence of the defendant who without any reasonable cause fails to appear in court after the case had been adjourned twice and if the prosecution can prove his case beyond reasonable doubt, the Court shall convict them and also convict the defendant in absentia.
It is apposite to note that in order not to waste the time of the court and the time of the proceeding, the prosecutor or the counsel to the complainant can apply to the court to sever the defendant from the litigation.
The severing of the defendant is just like striking out the name of that defendant from that ligation and trying him/her separately in a separate file.
Whether or not a Trial Court can sentence a defendant in absentia
By virtue of Section 352 Subsection 5 of ACJA, 2015 which provides that;
“The court shall impose a sentence only when the defendant is arrested or surrenders to the custody of the court”
This provides that even though a defendant can be convicted in absentia, he can’t be sentenced by the court in his absence. By implication, a sentence can only be imposed on a defendant only if the defendant is present in the Court.
Conclusion
The presence of the defendant is essential in criminal litigation to allow the defendant to enjoy his/her Constitutional Right to a Fair Hearing.
Reference
- Constitution of Federal Republic of Nigeria,1999 (Fifth Alteration, No.5) Act, 2023
- Simeon Olaosebikan Oni, ‘Right to a Fair Hearing: An Appraisal of the misconception between Nigeria and United Kingdom’ International Journal of Law, [2023] 9(4) 126-134.
- Ese Malami, The Nigerain Constitutional Law, Princeton Publishing Company, Nigeria, 2017, 329.
- Y.A Usman, The Principle of Fair Hearing And How It Affects The Decision Made In Judicial and Quasi-Judicial Proceeding (2020)< here/ >
1Section 36 of Constitution of Federal Republic of Nigeria,1999 (Fifth Alteration, No. 5) Act, 2023
25 NWLR (Pt.1613) Pg. 383-402 paras. A – C
3Isiyaku Muhammed v Kano NA (1968) 1 ALL NLR 42; Kotoye v CBN &Ors(1989) 1NWLR [Pt. 98] 421
4Moses Adebayo Omuya Ochu v Federal Republic of Nigeria (2010) LPELR-4673 CA
5(1986) ALL NLR 149
61999 (Fifth Alteration, No. 5) Act, 2023
7Peterside v IMB (Nig.) Ltd(1993) 2 NWLR (Pt. 278) 710
8Open Court
9 By virtue of Sections 175 and 212 of the Constitution of Federal Republic of Nigeria,1999 (Fifth Alteration, No. 5) Act, 2023, the President of the federation and Governor of each state is construed with the power to grant pardon.
10 (1987) 2 NWLR (PT 55) 197
11 Modes of Commencement of Criminal Litigation in an Inferior Court. See Section 116 (b-e) of Administration of Criminal Justice Act, 2015 for the Modes of initiating a Criminal Litigation in High Court.
12 Section 109 (a) of Administration of Criminal Justice Act (ACJA), 2015; Sections 116 (a) – 119 of Kwara State Administration of Criminal Justice Law, 2018
About Author
Adeshina, UmarFaruq Olaitan is currently a Law Student at Kwara State College of Arabic and Islamic Legal Studies. He is a Legal Researcher and a Writer.
