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22 Jan

CRIMINAL LITIGATION WEEK 13 (TRIAL 1; ARRAIGNMENT AND ATTENDANCE OF PARTIES)

WEEK 13.

TRIAL 1: ATTENDANCE OF PARTIES AND ARRAIGNMENT (WITH EFFECT OF ABSENCE)

:: ATTENDANCE OF THE ACCUSED IN COURT: Josiah v The State mandatory throughout all proceedings and bench warrant can be issued to compel his attendance. Section 266 ACJA, 208 CPL, 210 ACJL. Except if while present he misbehaves such that interrupts proceedings or he is of unsound mind, Or merely interlocutory application, or where on bail and has been absent for more than two adjournments, In Section 100 CPL presence may also be dispensed with if accused pleads guilty in writing or through LP for offences with penalty not exceeding 6 months or 100 Naira (10,000 for ACJA).

He must however be present for sentencing (or is it before he is sentenced?).

:: ATTENDANCE OF THE COMPLAINANT IN COURT: is mandatory and absence may ground dismissal of the suit but if there was prior notice or reasonable excuse, the judge should adjourn the case. 280 CPL.

Where both sides are absent, court should adjourn and may (if repeated subsequently) discharge. -280 CPA, 232 ACJL, 165 CPC.

:: ATTENDANCE OF VITAL WITNESSES IN COURT. Can be secured by subpoena or summon.

:: DUTY OF PROSECUTING COUNSEL: he should be fair, impartial and ensure that justice is done rather than seeking to secure conviction at all cost-COP v Tobin. He shall not supress authorities unfavourable to his case he should make it available (even to the accused) (at best he should distinguish it or ask the court to overrule where possible). Rule 37 RPC, State v Odofin Bello.

: COURT REGISTRAR: properly accept, file and ensure service, intimate judge, read and explain charge to accused, provide competent interpreter.

:: DUTY OF DEFENCE COUNSEL: he should accept criminal brief of accused (more compelling in capital offences) and give the accused a benefit of doubt. After accepting, he should defend the accused to the best of his abilities-Sunday Udofia v State. Properly institute, He should not threaten withdrawal when he does not know who would pay-Udo v The State. Diligence and dedication. Etc. Just Look at the RPC.

:: DUTY OF JUDGES IN A CRIMINAL COURT: he should appreciate that he is an umpire and not descend into the arena of dispute or take over prosecution of the case-Okoruwa v The State. Akinfe v The State. He must ensure fair hearing and give the accused a benefit of doubt rather. Olatubosun v NISER, Garba v University of Maiduguri, Mohammed v Nigerian Army.

:: ARRAIGNMENT: The trial is commenced by arraignment viz; the accused being brought before the court[1], then charge is read and explained to him (in the language he understands) thereafter he is asked to plead.

Some principles on plea.

– The Accused’s plea shall be recorded as nearly as possible in the exact words used Section 215  CPA, 187 CPC, 211 ACJL, 271 ACJA. Gwonto v The State, Section 36(6) Of the 1999 Constitution[2].

Accused must personally take his plea and it be recorded individually. It cannot be entered on the accused’s behalf. Not even by counsel or co-accused. See R v Pepple, Adamu v The State, Durowode v The State, Turri v National Park Service of Nigeria, R v Boyle.

:: No omnibus plea. The accused must enter a separate plea to each count-Lasisi v The State.

:: OPTIONS OPEN TO AN ACCUSED PERSON ON ARRAIGNMENT: he may;

  1. Raise an objection: on jurisdiction or defect in the charge or double jeopardy or pardon or statue bar. AG Federation v Abubakar, Madukolu v Nkemdilim. R v Jinadu Court is to consider the objection then overrule and ask him to plead or uphold objection and discharge him.
  2. Refuse to Plead: court would ask and inquire why and advise him to plead. If refusal is unwarranted, court enters not guilty on the plea and proceeds with trial-Gaji v The State. Section 276 ACJA
  3. Stand Mute: Court would inquire whether muteness is motivated by malice or caused by visitation of God (e.g. insanity, deaf and dumb). If the former (malice), a plea of not guilty? is entered. If the latter, accused shall be detained at the pleasure of the Governor. But if the accused can (from the inquiries of the court) still be made to understand the proceedings, court shall enter not guilty and proceed. See Section 276ACJA, 223 CPA Yesufu v The State.
  4. Plead Guilty: such plea shall be recorded as nearly as possible in the words used by the accused and court may proceed to convict accused on the plea. Aremu v C.O.P. 274 ACJA provided that the plea of guilty is unequivocal, unambiguous and not inconsistent with any statement earlier made by the accused. Also if offence requires expert evidence, such must still be proved before he can be convicted notwithstanding his plea of guilty. Ishola v The State. For capital offences, plea of not guilty should be entered notwithstanding that the accused pleaded guilty-274 ACJA Chukwu v The State. Moreover, accused can withdraw his plea of guilty before conviction-R v The Guest (All ER).
  5. Plead not guilty to offence charged but guilty to another (lesser) offence: court may EITHER (with the consent of the prosecution) convict him of this other offence (provided court has jurisdiction) OR disregard and proceed to try him on the main charge. Doing one precludes the court from doing the other. Odeh v FRN.
  6. Plead Not Guilty: in which case he is said to have put himself upon his trial. 273 ACJA
  7. Plead Not Guilty by reason of Insanity: 28 CC court shall examine whether the accused committed the offence. If no, he would be discharged immediately. If yes, court would inquire/determine if he was insane at the time of committing the offence. If yes; he’d be remanded in custody at governor’s pleasure. 276 ACJA Kayode Adams v D.P.P, Adamu v The State.
  8. Plead Autre Fois Acquit or Autre Fois Convict: meaning that he has been earlier tried by a competent court (foreign or local) over criminal offence/charge with same ingredients as the present one and has been acquitted or convicted respectively. Section 36(9) CFRN. If proved, accused shall be discharged if not proved, he would be asked to enter his plea and court would proceed with trial. See generally R v Jinadu.

 

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[1] He is to proceed to the dock… unfettered-210 and 211 ACJL, 271(2)(a) ACJA. Section 34 and 36 of the 1999 Constitution. He may however be fettered (handcuffed) where there is apprehension of violence or escape OR for his protection OR upon the order of the court/Judge/Magistrate. See Section 5, 8 and 271(2)(a) ACJA Turri v National Park Service of Nigeria.

[2] The judge should record that he is satisfied that the accused understood the charge which was read over and explained to him before he was invited to take his plea. Failure may not nullify proceedings-215 CPA.

Isochukwu

Quite eccentric really

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