Another trial on the same criminal offence I have been convicted/acquitted/ or granted Pardon. Help me!

Do not panic as such action will fail. The rule is one trial for one offence. It is popularly known as the rule against double jeopardy[1].  All you just need is to show the following:

  1. a) that the first trial was on a criminal charge;
  2. b) that the trial was by a competent court;
  3. c) that the trial ended in a conviction or an acquittal;
  4. d) that the offence is the same as the first or one for which the accused could have been convicted at the first trial although he was not charged with same.

On pardon, once a person has been pardoned for an offence he cannot be tried for the same offence nor be made to suffer disabilities on that account again[2].

[1] – S 36 (9 of the 1999 Constitution; Nafiu Rabiu Vs The State (1980) 8-11 SC. 130

[2] Section 36 (10) of the 1999 Constitution; Falae Vs Obasanjo (No. 2) (1999) 4 NWLR (pt. 599) 476; S.221 (1)(b) CPA

They are prosecuting me now over a last year matter on the ground that it has now become an offence this year

Such prosecution is illegal. Subject to the provisions of the constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty for the offence is prescribed in a written law. Such offence and conviction must be known to law.[1]

Moreover, conviction on retro-active legislation is unlawful. This means that a person shall not be convicted on account of an act which at the time it took place, did not constitute an offence and no penalty shall be imposed for any criminal offence heavier than that in force at the time the offence was committed.[2]

However, if the offence you are being charged now was an offence committed years ago and constituted a crime when it was committed without timeframe which we lawyers call statute-barred, you cannot invoke retro-active legislation as a defence.

[1] –Section 36 (12) of the 1999 Constitution See Aoko Vs. Fagbemi (1961) 1 All NLR 400; A.G.F. Vs. Isong (1986) 1QLRN 75

[2] Section 36 (8) of 1999 Constitution

They set up a panel for me at work/office. Do I deserve fair hearing?

Anyone can be accused of professional misconduct at his/her place of work or at any point in time in his/her career and be called to face Administrative panel or a professional Disciplinary Committee. Since the outcome of the Panel/Committee will decide your fate, it is important that the rule of Natural Justice be followed so that you would not be maliciously indicted on the altar of bias. You need virtually all rights listed under “All I need to know when I am facing trial/ Tribunal/ Administrative Panel” under Right to fair hearing.

All I need to know when I am facing trial-Tribunal-Administrative Panel

If you or any relative is facing Administrative panel, Tribunal or court trial, you need to take note of the following:

Publicity of Trial

Publicity of trial here means trial in a place where the public has unimpeded access. In such trial, open court shall be where the trial will take place not Judges chambers most especially where members of the public are not excluded from the trial.[1]

Presumption of innocence

Every person charged before a court of law for any offence shall be presumed innocent until his guilt is established in court. To do otherwise is to ask the accused to establish his innocence.[2]

Information of crime committed

The accused shall be informed promptly in the language he understands and in details of the nature of the offence. This is in addition to the provisions of Section 35 (3) dealing with arrest and detention. Note that failure to inform the accused of the nature and/or details of an offence lesser in nature than the one charged is not fatal if the accused has been informed of the graver offence.[3]

Adequate Time and facility to prepare for defence

An accused person has right to adequate time and facilities for the preparation of defence. The time being referred to in this subject matter relates not only to the first day to which his case is slated for the defence but also includes any other reasonable adjournment that may be sought by the defence.[4]

Note: the court may not tolerate unreasonable requests for adjournment.[5]

Where adjournment is sought to procure attendance of a witness, the accused must show:

  1. That the witness is material
  2. That he has not been guilty of neglect in procuring him
  • That he can procure his attendance for a certain date.

Note: “facilities” as used in the sub-section includes making available to the accused the proof of evidence including witness statements in the case.

 

Right to Counsel of his own choice or defend himself

This right is simply means that a person cannot be denied a right to a counsel/lawyer of his choice neither can a counsel/lawyer be imposed on him if he chooses to defend himself. [6]

 

Examination of Prosecution Witnesses and present his witness

The accused has a right not only to call and examine his witnesses but also to cross-examine the witnesses called by the prosecution. This is a mandatory provision in the constitution.[7] Any contrary position will fail.

 

Right to Interpreter

An accused person has right to be informed promptly and in a language he understands, and in detail, the nature of the offence for which he is to be charged. Failure to provide one where one is required is fatal to the proceedings and any decision reach against you will fail.[8]

Where one is provided and found to be incompetent, any conviction based on it is liable to be quashed[9].

The provision of interpreter should be at no cost to the accused.

However, where the accused fails to inform the court of his defect in the language of the court, the trial will stand as the failure will be treated as a mere irregularity[10].

 

Right to silence

This right is both constitutional and statutory.[11]

NOTE: In addition to these various constitutional provisions, there is statutory provision for Mandatory Legal Representation in capital offences.

 

[1] S. 36 (4) of the 1999 Constitution

[2] Eyu Vs. The State (1988) 2 NWLR (pt. 78) 602. Okoro Vs The State (1988) 12 SCNJ 19. Uso Vs COP (1972) 11 SC 37. See the exceptions  in SS. 141 (3)(b) & 142  of the Evidence Act. See the proviso to S. 36 (5) CFRN.

[3] Sections 36(6)(a), 179 (2) CPA; 218 (2) CPC; Maja Vs. The State (1980) 1 NCR 212, Nwachukwu Vs The State (1986) 4 SC 378.

[4] See Section 36 (6)(b) of the 1999 Constitution, Udo Vs The State (1988) 3 NWLR (pt. 82) 316. See also Gokpa Vs. IGP (1961) 1 All NLR 423

[5] See   Yanor Vs The State (1965) 1 All NLR 193; Shemfe Vs. COP (1962) NNLR 87.

[6] S 36 (6)(C) of the 1999 Constitution

[7] See Section 36 (6)(d) of the 1999 Constitution, Tulu Vs Bauchi N.A (1965) NMLR 343; Idrisu Vs. The State (1967) 1 All NLR 32.

[8] See Section 36 (6)(e) of the 1999 Constitution, Anyanwu Vs The State (2002) 13 NWLR (pt. 783) 107.

[9] Ajayi Vs Zaria N.A.(1964) NNLR 61.

[10] Udosen Vs. The State (2007) All FWLR (pt. 356) 669. See also The State Vs Gwonto (1983) 3 SC.67

[11] See– Sections. 36 (11) of the 1999 Constitution, 160 (a) of Evidence Act; 287 (1)(a) CPA; 236 (1)(a) CPC. See also Sugh Vs The State (1988) 2 NWLR (pt. 77) 475.

My right to fair hearing (Introduction)

  • Introduction

The right to fair hearing is also known as the principle of natural justice encapsulated in the two traditional latin maxims: audi alterem patem and nemo judex in causa sua. The right to fair hearing entails the following:

Easy access to the court/Tribunal

  1. The right to be heard;
  2. The impartiality of the adjudicating body; and
  • Speedy trial

Where any of these is lacking, there is absence of fair hearing[1].

Audi alterem patem simply means that the accused be given opportunity to be heard[2] while Nemo judex in causa sua principle demands that justice must not only be done but must be seen to be done. The question here is not whether the judge was biased in fact. Rather, it is whether a detached onlooker looking at what the court or judge has done will have the impression that the judge was biased.[3]

The adjudicator must not be interested in any of the parties or the subject matter by virtue of his relationship with any of them or the outcome of the proceedings[4]. If the person deciding your fate is related or appointed by your accusers, there may be element of bias whether in court or at any administrative panel.

[1] See Effiom Vs. The State (1995) 1 NWLR (pt. 373) 507.

[2] See S.287 CPA. See Otapo Vs. Sunmonu (1987) 5 SCNJ 57.

[3] Ajibaiye Vs. Ajibaiye (2007) All FWLR (pt. 359) 1321.

[4] See Garba Vs. Uni-Maid (1986) 1 NSCC 245; Yabugbe Vs. COP (1992) 4 NWLR (pt. 234) 152