CRIMINAL LITIGATION: ATTENDANCE OF PARTIES AND ARRAIGNMENT

The defendant passes through various stages before he appears before the court for trial and even during the trial; Arrest, Pre-trial Investigation, Police Bail, Summon, Arraignment, Bail Pending Trial, bench Warrant…..etc.

For the purpose of today lecture, we need to know certain things;

1.      What is a Summon? When is it issued?

2.      When is Warrant of Arrest issued?

3.      When is Bench warrant issued?

Furthermore, we need to understand;

1.      Who are the parties to a criminal trial?

2.      The absence of the Complainat in trial

3.      The absence of Accused in trial

4.      The non-appearance of the Defense Counsel

5.      Non-Appearance of both parties

6.      Appearance of both parties

AFTER, we proceed to;

1.      Cardinal rules in Arraignment

2.      Cardinal Principles of Taking Plea

3.      Recording of Plea

4.      The forms of plea;

a)      Refusal to plea

b)      Standing Mute

c)       Plea of Not guilty by reason of Insanity

d)      Plea of guilt with reason

e)      Plea of guilty

f)       Plea of guilty in capital offences

g)      Plea to a lesser offence against the griever offence charged

5.      Plea Bargain.

Summon is an order in writing commanding a person to whom it is addressed to appear in court on a named date and time to answer to allegation of crime made against him.

NOW WHEN HE FAILS TO APPEAR

The court will issue a warrant of arrest to a police officer or other officer mandating to arrest and bring person named therein before the court that issued same.

HOWEVER, WHERE DURING THE TRIAL THE DEFENDANT WAS GRANTED BAIL AND HE JUMPED BAIL

The court will issue a bench warrant mandating the arrest of the defendat that have jumped bail.

ATTENDANCE OF PARTIES

WHO ARE PARTIES TO A CRIMINAL TRIAL?

ANS= COMPLAINANT AND ACCUSED/DEFENDANT

GENERAL RULE: All parties are to be present in a trial. Trial in Absentia is unknown to our law.

                        ATTENDANCE OF THE COMPLAINANT

RULE: The complainant must always be present when trial is fixed for hearing.

EFFECT OF HIS ABSENCE/ORDER:

a)      Dismiss the case (which is a mere discharge of the defendant)

b)      If the court receives cogent reasonable excuse, he shall adjourn the hearing of the case to some future date as the court may deem fit. Section 351(1)&(2) ACJA, SECTION 232 ACJL, SECTION 280 CPL

N.B: FOR THE PUPORSE OF SCENARIO IN EXAM

IN CPC JURISDICTION: when the complainant is absent on the date fixed for hearing, the only effect is;

‘’the court may in its discretion at any time before the charge has been framed discharge the accused’’ SECTION 165 CPC (NORTH)

                                    ATTENDANCE OF THE ACCUSED

GENERAL RULE: An accused person shall be present in court at every sittings of the court. In ADEOYE V STATE:

            ‘’It is not part of our jurisprudence to try a defendant in absentia’’

HOWEVER, we have certain exceptions to this rule; SECTION 153 CPC, SECTION 208 ACJL, 266 ACJA.

THE EXCEPTIONS

EXCEPTION 1: SECTION 100 CPL (Dispensing with the presence of defendant)

N.B: This is only applicable in the Magistrate court and it is discretional

The offence must be one that the punishment is not exceeding #100 or imprisonment not exceeding 6 Months.

The accused must have plead guilty in writing or so plead by a legal practitioner.

However, note that because this is discretional to the Magistrate, where the presence of the accused has been dispensed with, he may at any stage of the proceeding direct the personal attendance of the accused and if necessary enforce such attendance by means of the issue of warrant to apprehend the accused and bring him to court. Section 100 (2)

ALSO, SECTION 135 ACJA (DISPENSING WITH THE PRESENCE OF THE DEFENDANT)

N.B: This is applicable in the Magistrate

The offence is one which the Penalty is a fine of #10,000 or imprisonment for a term not exceeding SIX MONTHS or both

The defendant must have plead guilty in writing and so pleads by his legal practitioner.

However, note that because this is discretional to the Magistrate, where the presence of the accused has been dispensed with, he may at any stage of the proceeding direct the personal attendance of the accused and if necessary enforce such attendance by means of the issue of warrant to apprehend the accused and bring him to court.

EXCEPTION 2: INVESTIGATION INTO UNSOUND MIND OF THE DEFENDANT

N.B: This is different from when the defendant is taking his plea, here the trail has commenced.

STATUE: SECTION 223(2) CPL, SECTION 217(2) ACJL, SECTION 278 ACJA, SECTION 320(2) CPC

WHAT WILL THE COURT DO?

1.      Investigate the fact of such unsoundness of mind

After the investigation, two things will happen

2.      Where the court is satisfied that owing to the state of mind of the defendant it would be in interest of the safety of the defendant or of other person in the cout or in the interest of public decency that he should be absent, the court may receive as evidence a certificate in writing signed by the medical officer to the effect that such defendant is in his opinion of unsound mind and incapable of making his defence OR take oral evidence from medical officer on the state of mind of such defendant.

3.      Where the court is not satisfied that such person is capable of making his defence, the court shall postpone the trial and shall remand such person for a period not EXCEEDING ONE MONTH to be detained for observation in a mental health asylum for a further period of THREE MONTHS.

However, note that a court which a defendant suspected to be of unsound mind is accused of any offence may, on the application of the Law officer, made at any stage of the proceeding prior to the trial, order that the person be sent to an asylum or such other suitable place for observation.

EXCEPTION 3: MISCONDUCT AT TRAIL

RULE: The misconduct must be interrupt the proceeding as to render his presence impracticable or undesirable.

STATUTES: SECTION 208 ACJL, SECTION 266 ACJA

EXCEPTION PECULIAR TO ACJA ON NON- APPEARANCE OF THE DEFENDANT

1.      The presence of the defendant can be dispensed with when an interlocutory application is brought to court. SECTION 266 (b) ACJA

IF THE DEFENDANT DOES NOT APPEAR AND NO SUFFICIENT EXCUSE IS OFFERED FOR HIS ABSENCE, THE STEPS THE COURT WILL TAKE ARE;

a)      Where the court is satisfied that the summon, if any has been served, may issue a warrant for his arrest

b)      Where the court is not satisfied that the summons has been duly served or where the warrant had been issued in the first instance, for the arrest of the defendant. The court shall adjourn the hearing of the case to some future date, in order that proper service may be effected or until the defendant is arrested.

FURTHERMORE, SECTION 352(4)& (5) Vs TRIAL ABSENTIA

Under this section Trail had actually commenced, so it cant be said to be trial absentia and it is peculiar to ACJA

HERE, the defendant was granted bail and he has jumped bail by refusing to attend court on the date fixed for hearing without any reasonable explanation. The court will give at least 2 adjournments to give the defendant a chance to appear before the court.

If he still fails to appear before the court. The court will proceed with the trial in his absence and convict him, unless the court sees reason otherwise.

However, the court shall only impose a sentence ONLY when the defendant is arrested or surrender to the custody of the court.

NON- APPEARANCE OF DEFENCE COUNSEL

STATUES: SECTION 233 ACJL, 349 ACJA

OPTIONS AVAILBLE;

a)      To engage another counsel or get legal aid

b)      Defendant to make private arrangement if he indicates to do so

c)      Adjournment to engage another counsel

d)      If he fails or unable to secure legal representation, the court shall have power to order that the defendant be represented by way of legal aid

N.B: The provision of SECTION 36(6)(b) CFRN

                            NON APPEARANCE OF BOTH PARTIES

Order the court will make?

a)      court make order as the Justices of the case

b)      adjourn to compel attendance by both complainant and accused

c)      payment of cost.

SECTION 282(1)CPL, 236 ACJL, 353 ACJA

APPEARANCE OF BOTH PARTIES

The court shall Appeal both parties to proceed to hear and determine the case. In other words the court will proceed to trial. SECTION 354 ACJA

ARRAIGNMENT

MEANING: Process of taking plea of an accused to the charge before the court. It is the beginning or commencement of a criminal trial.

CARDINAL RULE: Upon Arraignment, where the defendant appears before the court on a SUMMON, the defendant is required to enter the DOCK,(LEFT SIDE OF THE JUDGE) to stand or sit in it, except where circumstances do not permit, as may be directed by the court. SECTION 269 CJA

PROCEDURE FOR VALID ARRAIGNMENT;

a)     

 The defendant shall be brought to the court unfettered unless the court directs otherwise AND

b)      The charge or information read over and explained to the accused/defendant in the language that he understand to the satisfaction of the court by the Registrar of court or other officer of the court AND

c)      The accused to be called upon to plead instantly to the charge

N.B: TWO IMPORTANT THINGS;

1. Instances where the defendant may be fettered

a) When he makes attempt to escape

b) When he is violent

2. For the purpose of reading the Charge the Counsel and Police Officer are not an officer of the court for that instance.

N.B: It is settled law that failure of the court to observe the procedure of arraignment would render the entire proceedings a nullity ab initio. DIMBE V STATE, SUNMABO V STATE.

                  CARDINAL PRINCIPLES OF TAKING PLEA

1.      All pleas must be taken in person by the defendant

2.      Where there are several accused person, each must take plea individually. ADAMU V STATE

3.      Counsel cannot plead on behalf of the accused. R V PEPPLE

4.      No BLOCK PLEA where there are several counts. See AYINDE V STATE

5.      Charge of several counts can be READ TO ALL JOINTLY but PLEA SEPARATE

N.B: When the court records a BLOCK PLEA, the trial is nullity.

RECORDING OF PLEA

RULE: Plea to be recorded by court in as nearly as possible in the words used by the defendant. SECTION 271(3) ACJA

RULE 2: Failure to record will render the trail nullity. EDE V STATE

RULE 3: Where we have more than one count, plea must on each count is to be recorded. DUVAL V STATE

THE VARIOUS PLEA OR OPTION OPENED TO AN ACCUSED UPON ARRAIGNMNET

REFUSAL TO PLEA: A deliberate withholding of Plea.

POSER: WHAT WILL THE COURT DO?

a)      Ask him for reason of refusal to plead

b)      Examine the reason

NOW, IF THE REASON HE GIVES IS INVALID

c)      He will be asked to plead

d)      If he still refuses to plead, then a ‘’plea of not guilty’ will be entered and trail will proceed.

CASE: GAJI V STATE, STATUTE: SECTION 215 ACJL, 220 CPL, 188CPC, 276 ACJA.

                                              STANDING MUTE

STATUTE: SECTION 220 & 223 CPL, 188CPC, 218 ACJL, 276 ACJA

POSER: What will the court do?

a)      The court will investigate the cause of the muteness if it is

i.                    Out of Malice OR

ii.                  Visitation of God

N.B: Medical or other evidences will be used to determine the above.

AFTER INVESTIGATION

b)      It is Malice, the court will enter a ‘plea of not guilty’

c)      If Visitation of God, the court will not go into trial but detained at Governors Pleasure. YESUFU V STATE.

Consequently, SUBSECTION (3)&(4) OF SECTION 276; provides that the court may inquire into the mental state of the defendant and if satisfied that he is of sound mind, the court shall proceed with the trial, but if not the court shall order the medical examination of the defendant mental state or of soundness of mind. See SECTION 278(1) ACJA

AN ACCUSED PERSON UPON TAKING OF PLEA, HE RAISES A PRELIMINARY OBJECTION

1)      The defendant upon arraignment before he takes his plea after the charge have being read to him, may raise any of the following preliminary objection;

a.       Lack of Jurisdiction

b.      Defects in the Charge Sheet

c.       Double Trial

d.      Ground of Pardon

e.       The offence has been statute barred.

PLEA OF NOT GUILTY BY REASON OF INSANITY

EFFECT: The defendant is claiming that he committed the offence but at the time he commited the offence, he was INSANE.

N.B: this period he his taking his plea, he is LUCID so he understand the charge, but there is no mental capacity to commit the offence. Absence of Mens Rea

N.B: THIS IS DIFFERENT FROM WHEN HE IS INSANE AND HE CANNOT TAKE PLEA AT ALL

THE STEPS THE COURT WILL TAKE?

a)      Whether the offence was committed

b)      If the offence was committed, the court will determine whether the accused committed the offence

c)      Where he committed the offence whether sane or Insane at the time of commission of the offence, the court will

i.                    If Sane, accused to be convicted

ii.                  If Insane, the plea of not guilty by reason of insanity will be upheld

d)      Where the Plea is upheld, the accused to be kept in custody in a mental health asylum or other suitable place of safe custody. SECTION 286 ACJA

PLEA OF GUILTY WITH REASON

RULE: A plea must not be ambiguous and unequivocal.

POSER: What will the court do?

The court will enter a plea of guilty and trial will commence.

PLEA OF GUILTY

After the defendant have being arraigned before the court and the Charge has been read and explained to him in the language he understand. If he pleads guilty to the offence, the court shall;

a)      Record his plea as nearly as possible

b)      Invite the prosecution to state the fact of the case and

c)      Enquire from the defendant whether his plea of guilty is to the fact as stated by the prosecution.

d)      Where the court is satisfied that the defendant intends to admit the truth of all essential elements of the offence for which he has pleaded guilty and the court shall convict and sentence him or make such order as may be necessary, unless there is a reason to contrary.

PLEA OF GUILTY IN CAPITAL OFFENCE

RULE: Plea of not guilty to be recorded notwithstanding the plea.

STATUTE: SECTION 213(2)ACJL, 187(2) CPC, 274(3) ACJA

CASE LAW: OLABODE V STATE, R V KOFFI MANSU, CHUKWU V STATE

PLEA TO A LESSER OFFENCE FROM THE OFFENCE CHARGED AGAINST THE DEFENDANT

WHAT WILL THE COURT DO?

1)      The court will ask the Prosecutor whether he consent to that lesser offence.

2)      If he does, the prosecutor will amend the charges to conform with the lesser offence, this is what will be summarized to the defendant i.e stating the fact of the case

3)      The court will enquire from the defendant whether his plea of guilty is to the fact as stated by the prosecution

4)      Where the court is satisfied that the defendant intends to admit the truth of all essential elements of the offence for which he has pleaded guilty and the court shall convict and sentence him or make such order as may be necessary, unless there is a reason to contrary.

BUT, if the Prosecutor did not consent to the lesser offence;

1.      The trial will proceed

2.      If the prosecutor fails to prove the offence, he cannot go back to the lesser offence

N.B: The court must have jurisdiction over the lesser offence.

AUTHORITIES: R V KELLY, SECTION 219 CPL, 214 ACJL

PLEA BARGAIN IN CRIMINAL TRAILS IN NIGERIA

WHAT IS PLEA BARGAIN?

Under the SECTION 494 OF ADMINISTRATION OF CRIMINAL JUSTICE ACT: This means the process in criminal proceedings whereby the defendant and the prosecution work out a mutually acceptable disposition of the case; including the plea of the defendant to a lesser offence than that charged in the complaint or information and in conformity with other conditions imposed by the prosecution, in return for a lighter sentence than that for the higher charge subject to the court approval.

Plea Bargain is entrenched in both Administration of Criminal Justice Law and Administration of Criminal Justice Act. Both provides for the procedure for plea bargain in Nigeria. And it is applicable for every offencesSEE SECTION 75 AND 76 OF ACJL and SECTION 270 OF ACJA

The types of Plea Bargain we have are; Charge Bargain, Count Bargain and Sentence Bargain. In criminal trial, the condition precedent of entering a Plea Bargain under ACJA are;

1. The evidence of the prosecution is insufficient to prove the offence charged beyond reasonable doubt
2. Where the defendant has agreed to return the proceeds of the crime or make restitution to the victim or his representatives
3. Where the defendant, in a conspiracy, has fully cooperated with the investigation and prosecution of the crime by providing relevant information for the successful prosecution of other offenders. SEE SECTION 270(2)(a-c) ACJA

Furthermore, the prosecutor shall take into consideration certain factors when considering accepting or making an offer of plea bargain;

1. The criminal antecedents of the defendant
2. His willingness to cooperate with the prosecution in the investigation and eventual prosecution of others involved in the criminal enterprise in question
3. The expense and time of trial,
4. And much more fundamentally, the willingness of the defendant to make restitution to the victim of the offence. See SECTION 270(5) ACJA

The law in upholding transparency in Plea Bargain, makes it mandatory for the Prosecutor enter into Plea Bargain only after consultation with the Police Officer who investigated the case and further provides that where it is feasible to consult with victim of the offence. See SECTION 76(2)(a)ACJL SECTIONN 270(5)(a) ACJA.

Subsequently, to avoid issue of equivocation, both statues provides that the agreement of Plea Bargain must be in writing, and not just in writing, the defendant must be informed that;

1. He has a right to remain silent
2. Consequence of not remaining silence
3. He is not obliged to make any confession or admission that could be used against him. See SECTION 76(4)ACJL & SECTION 270(7)ACJA

ACJA, provides further that a copy of the agreement shall be forwarded to the Attorney General of the Federation.

In conclusion, the introduction of Plea Bargain in Criminal trials in Nigeria is aimed at;

1. It saves cost of litigation
2. It is good for the decongestion of the Courts and Penal institutions
3. The State can recover especially in embezzlement cases, i.e money and assets from the accused.
4. The defendant/accused can avoid higher sentences
5. Publicity is avoided. 

EFFECT OF PLEA BARGAIN

By virtue of SECTION 270(17) ACJA, where a person is convicted and sentenced under plea bargain, he shall not be charged or tried again on the same facts for the greater offence earlier charged to which he had pleaded to a lesser offence.

N.B: SEE THE POWER OF COURT IN SECTION 270(10) ACJA

ROLES AND DUTIES OF A REGISTRAR IN A CRIMINAL TRIAL

a)      He is to accept documents and  processes for filing.

b)      He keeps the court records

c)      He ensures all court's files and cases are brought to the attention of the Judge.

d)      He makes available to every party the records of proceedings and other documents emanating from the court upon satisfying the conditions for obtaining same. Section 306 ACJL.

e)      He makes available certified true copies of documents where they are needed. Section 104 Evidence Act.

f)       He is to ensure that all court processes are served by the bailiff or sheriff or process servers of court on litigants.

g)      He prepares weekly case list/bar list.

h)      He is responsible for reading  and explaining of charges to the accused persons.

i)        He attends to the needs of the judge.

j)        He acts as an interpreter or makes available to the court a competent interpreter where it is necessary.

k)       He is responsible for affirming or swearing in witnesses in trial.

ROLES AND DUTIES OF A JUDGE

a)      He must be an unbiased or impartial umpire who is fair and he is seen to be fair to all parties.

b)      He must not take over the prosecution of the case from the parties. Mohammed V Nigerian Army.

c)      He must not be a “hippy harpist” by talking too much in the case. See Uso v The Police.

d)      He should allow the accused person enjoy the benefit of doubt as to his guilt and must not do anything to take away that benefit. See Onuoha V The State.

e)      He should not descend to the arena of conflict by asking questions that will decide the case one way or the other. See Akinfe v The State. However, judges are allowed to put questions to witnesses in order to clarify certain points before him. See 246 Evidence Act.

f)       To consider whether the proof of evidence filled disclose a known offence under the law. See AGBOOLA V FRN

g)      To determine if the proof of evidence in any way link the defendant with the offence.