It’s quite unfortunate that an accused person in Nigeria is in most occasions treated as a condemned criminal even when the court of law have not tried him and found him guilty. I think the major reason for such treatment is because the accused person is ignorant of his rights. When you actually know your rights, you’ll protect it ardently. The rights of an accused person commences after the accused person is arrested and continues throughout his trial. Section 36 (5) of the 1999 constitution provides that every person who is charged with a criminal offence shall be presumed innocent until he is proved guilty. Therefore a person who is arrested for a crime is alleged innocent until proven guilty by a court of justice. In order to protect this presumption of innocence, they are certain rights made available for an accused person and these rights are entrenched in the constitution.
1. RIGHT TO BE INFORMED OF THE CRIME ALLEGED
A person charged with a criminal offence is entitled to be informed promptly, in the language that he understands and in details, the nature of the offence (that is, crime alleged). Sec 36(6)(a) of the 1999 CFRN
The information stipulated under section 36(6)(a) should be given to the accused prior to the trial, at the time of arrest or at the beginning of the trial when he is arraigned – Maja v. The State(1980) 1 CLR 212. Such information should be given in the language which the accused person understands.
2. RIGHT TO FAIR HEARING
Section 36(4) of the CFRN provides thus:
“whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal:”
The Supreme Court in Effiom v. The State (1995) 1 NWLR (Pt. 373) 507 at 575, prescribed the essential elements of fair hearing as follows:
a. Easy access to court;
b. Right to be heard;
c. Impartiality of the adjudicating process;
d. Principles of audi alteram partem(hear the other party) and nemo judex in cuasa sua ( no one should be a judge in his own case) and
c.Whether there is inordinate delay in delivering judgment.
For a hearing to be fair there must be a hearing in the sense that the parties know the bone of contention and be allowed to give evidence for or against the fact in issue. In Obodo v. Olomu (1987) 3 NWLR (Pt. 59) 111, it was held that a denial of the right to address is denial of fair hearing.
It is a trite law that once there is a breach of fair hearing, the whole proceedings in the course of which the breach occurred, and the decision arrived at by the court become a nullity – ANPP v. INEC (2004) 7 NWLR (Pt. 871) 16 CA; APP v. Ogunsola (2002) 5 NWLR (Pt. 761) 484 CA.
3. PRESUMPTION OF INNOCENCE
Section 36(5) of the 1999 CFRN provides thus:
“Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.”
Provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.
It is the duty of the prosecution who alleges that the accused person committed the offence to prove it beyond reasonable doubt. In Okoro v. The State (1988) 12 SCNJ 19; (1988) NWLR (Pt. 74) 255, the court held that since the prosecution had failed to establish that any of the accused persons unlawfully caused the death of the deceased, there was no case against any of the accused persons; and that to ask the first accused person to defend himself was to ask him to prove his innocence, which is contrary to the presumption of innocence enshrined in the constitution.
Also in Uso v. C. O. P (1972) 11 SC 37, the Supreme Court held that it is the duty of the prosecution to prove the guilty of the accused person and not that of the judge or any other person.
It should however be noted that section 141(3)(c) of the Evidence Act places the burden of proving insanity or facts within the knowledge of the accused person on him which is consistent with the proviso of section 36(5) of the 1999 CFRN.
4. RIGHT TO ADEQUATE TIME AND FACILITIES FOR DEFENCE
Under section 36(6)(b) of the 1999 CFRN, every person who is charged with a criminal offence is entitled to “be given adequate time and facilities for the preparation of his defence”
Complaints as to violation of this provision have mostly arisen where a trial judge or magistrate refused an application for an adjournment by the accused for the purpose of calling certain witnesses. The accused person has a right to apply for subpoena to be issued to his prospective witnesses in the case of a High Court trial. He may also apply for a witness summons under section 186 of the Criminal Procedure Act. The application for a subpoena and witness summons should be made on time.
The accused person also has the right for an adjournment so as to prepare for his defence, but this right does not curtail the normal discretion of the court to grant or refuse adjournments provided the discretion is exercised judicially. In Police v. Okafor (supra). Thus, in Omega v The state (supra), where during the trial the accused had plenty of time to summon his witnesses but did not do so, the refusal of the trial judge to grant him an adjournment at the close of the prosecution’s case in order to call his witnesses was held to be right and not contrary to section 36(6)(b) 1999 CFRN
In Ortese Yanor & Anor. v. The State (1965) 1 All NLR 193, the Supreme Court held that a defendant who asks for an adjournment because his witness is absent should normally satisfy the trial court that the witness is material to the evidence, that he (the defendant), has not been guilty of neglect in procuring the witness to attend, and that there is reasonable expectation that he can procure his attendance for a certain date.
5. RIGHT TO DEFEND BY COUNSEL
This is the right of the accused person to defend himself in person or by legal practitioners of his own choice.
Section 36(6)(c) provides that a person charged with a criminal offence is entitled to defend himself in person or by legal practitioners of his own choice
An accused person who appears in court without a counsel is entitled to be informed by a court of his right to defend himself personally or through a counsel of his choice. However, a High Court may in a trial of a capital offence, assign a counsel to an accused person who is not defended by one – section 352 of the Criminal Procedure Act.
If an accused has a counsel assigned to him in this way, he may object to his being defended by the particular counsel by virtue of section 36(6)(c) of the constitution – Ezea v. The Queen (1963) 1 All NLR 245. If he has made an arrangement for his own counsel, he should not accept a counsel assigned to him by the court, otherwise, he cannot afterwards complain that he had not been allowed to have the counsel of his choice.
6. RIGHT TO EXAMINE WITNESSES CALLED BY THE PROSECUTION
This right is available under the provisions of section 36(6)(d) of the 1999 CFRN which provides thus:
“Every person who is charged offence shall be entitled to –
(d) examine, in person or by his legal practitioners, the witnesses called by the prosecution before any court or tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court or tribunal on the same conditions as those applying to the witnesses called by the prosecution.”
The provision is a basic prerequisite for a fair trial. In Tulu v. Bauchi Native Authority (1965) NMLR 343, the trial court did not allow the accused to examine each prosecution witness as they gave evidence, but merely itself asked the witnesses a lot of questions. It was held by the Supreme Court that section 36(6)(d) of the Constitution was not observed in respect of each of the prosecution’s witnesses. The appeal in the case was allowed and conviction and sentence quashed on this ground among others. Thus, it was held by the Supreme Court that this was in contravention of the accused person’s right to cross-examine prosecution witnesses.
TO BE CONTD
