ATTENDANCE
OF THE ACCUSED IN COURT
The
basic rule of attendance of the accused in court is provided for under section 210 of the Criminal Procedure Act
(CPA); section 153 and 234(1) of the Criminal Procedure Code (CPC); and
section 208 ACJL.
Section 210 of the CPA states
thus:
“Every
accused person shall, subject to the provisions of section 100 and of
subsection (2) of section 223, be present in court during the whole of its trial
unless he misconducts himself by so interrupting the proceedings or otherwise
as to render their continuance in his presence impracticable.”
Under section 100 of the CPA, if a person is
summoned to court in respect of an offence, the magistrate may on the
application of such a person, where the offence is punishable by a penalty, not
exceeding one hundred naira, dispense with the attendance of that person
provided he pleads guilty in writing or a counsel appears and so pleads on his
behalf in the court. Notwithstanding such a dispensation, the magistrate may,
at any subsequent state of the proceedings order the accused person’s personal
attendance if it is required. The offences to which this exception applies are
necessarily simple offences, not very serious ones.
The
exception in section 223(2) of the CPA, deals
with the investigation into the question of whether an accused person is of
unsound mind, and, therefore unable to make his defence. Such an investigation
may be held in absence of the accused person if it is the opinion of the court
that owing to his state of mind it would be in his interest or in the interest
of other persons or of public decency that he should be absent. This, it is
submitted, is not a real exception to the rule because the accused, in such a
case is only absent from the proceedings in which his insanity is being
investigated and not from the trial, as such, of the offence with which he is
charged. The requirement that an accused person should be present during his
trial is not only a rational one but is designed to ensure justice.
This
presence may be dispensed with if the following exceptions:
1.
He misconducts himself by so
interrupting the proceedings or otherwise as to render their continuance in his
presence impracticable – Section 210 of
the CPA, section 153 of the CPC, section 208 of the Administration of Criminal
Justice Law (ACJL).
2. Section 100 of the CPA provides
that to the presence of the accused where the offence in respect of which a
summons issued carries a penalty not
exceeding N100.00 or imprisonment
not exceeding 6 months. If the accused person pleads guilty in writing or
appears and so pleads by a legal practitioner. Section 154(2) of the CPC has a similar provision.
3. Under section 230(2) of the CPA, the court
can also dispense with the presence of the accused if he is of unsound mind – Lawrence v. The King
(1933) AC 699, where
the appeal was allowed when a magistrate altered the sentence without the
appellant in court.
4. Where
the accused does not appear in court without being excused under section 100 of the CPA, or section
154(2) of the CPC, the court may issue a bench warrant for his arrest and
subsequently commit him to prison. This is also provided in section 217(2) of the ACJL.
The
accused person should not only know the accusation against him, but should also
know who his accusers are and have the opportunity to cross-examine them.
The
rule is not one stringently observed. Trial for this purpose means the whole
proceedings including sentence – R. v. Lawrence (1935) 11 NLR 6.
Therefore, the alteration and recording of a sentence, after conviction in a
trial for indictable offence in the absence of an accused person is ultra vires and invalid.
ATTENDANCE
OF THE COMPLAINANT IN COURT
It is
mandatory that the complainant be present during court trial or proceedings.
The complainant may either be a victim, the police, or the State.
Thus,
if the complainant fails to appear to give appear in court without any
reasonable excuse, the court may dismiss the complainant and discharge the
accused who is present.
However,
where the court is satisfied with the excuse giving by the complainant for his
absence, the court may adjourn the hearing to some future date – section 280 of CPA, section 165 of CPC, and
section 236 of ACJL.
WHERE
BOTH THE ACCUSED AND COMPLAINANT ARE ABSENT
Where
there is a trial in court and none of the parties, that is, the complainant and
the accused person are present, the court may make such order as the case
requires.
Such
order may include –
1. Issuance
of bench warrant, i.e. order arrest of accused person if he is already on bail.
2. Order
notice to be issued to the complainant mandating him to attend the next sitting
of the court, failure of which, the accused will be discharged.
3. Order
an adjournment section 282(1) of the
CPA, and section 240 of the ACJL
However,
Courts may issue costs under section
282(2) of the CPA.
ATTENDANCE
OF A MATERIAL OR VITAL WITNESS
A
witness is one that needs to testify or give evidence in court. The court may
issue summons requiring any person likely to testify or give evidence for
prosecution or defence to attend the court on a named date, time and place – section 186(1) of the CPA, and section
177(1) of the ACJL.
Where
a witness is absent, the following shall take place –
- The
court may issue a subpoena to compel the attendance of a vital witness for
the case of the complainant or accused – section 358 of the CPA, sections 162(2) and 163 (1) &(2) of
the CPC, and section 188 of the ACJL.
- Warrant
of arrest may be issued where there is no justifiable reason for the
absence of the witness – section
188 of the CPA, and section 179 of the ACJL.
- Court
may also issue warrant for the arrest of a witness at first instance – section 189 of the CPA, and section 180
of the ACJL.
- Court
may issue bench warrant for the arrest of any witness who without any
justifiable reason fails to honour the writ of subpoena issued on him – section 356 of the CPC, and section 186
of the ACJL.
In practice, such processes are
issued on the application of the party for which the processes are needed, and
a party is only required to call any number of witnesses that may be sufficient
to establish his case.
The
prosecution or applicant can refuse to call all or any of the witnesses listed
at the back of his information (Prosecution) or in his application for the writ
of subpoena (applicant) – Adaje v. State (1979) 6-9 SC 18,
where the Supreme Court held that the prosecution was not under a duty to call
all the witnesses listed for trial.
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 CPA, 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 1986, Schedule 2 of the Act, an accused
person whose annual income does not exceed N1,500 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.
Barr, Ezekiel chigozie has many years experience in
providing legal representation and advising clients across an exceptionally
broad range of contentious and non-contentious matters. His main goal is to
help clients resolve any contentious or non-contentious legal problem they are
having rapidly and cost effectively.
Email: victorezekielc@gmail.com
Tel: +2348034997413
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