PRESENTATION BY: KELVIN MEJULU, ESQ. - PowerPoint Presentation

PRESENTATION BY: KELVIN MEJULU, ESQ. 1

Bail Pending Trial PART 19 (s. 158 – 188)ACJA deals with Bail pending Trial Once a defendant has been taken to court, application for his bail is usually made to a court. Section 158 of ACJA The ACJA in section 165 provides that the conditions for bail must not be excessive. Eye v. F.R.N. (2018)7 N.W.L.R. (Pt. 1619) 495; Mufutau Olayiwola & 4 Ors v. Federal Republic of Nigeria (2006) All FWLR (Pt. 305) 667 at 691; Tochukwu v. FRN (2005) All FWLR (pt. 278) 1048 at 1070The determining factor in the application for bail pending trial is whether the defendant will avail himself for trial if bail is granted. 2

Section 32 (3) of ACJA provides that an application for bail may be made orally or in writing. The determination of the criteria of bail is quite important because the liberty of a defendant stands or falls by the decision of the court. 3

Criteria for grant of bail In exercising its discretion to grant bail to an applicant, the court has a duty to consider the following: Nature and gravity of charge; Evidence available against the defendant; Severity of the punishment;Likelihood of the defendants interference with witness(es) and evidence;Availability of the defendant to attend court for trial;4

Criteria Contd. Defendant’s criminal record as well as the likelihood of repeating the offence while on bail; Likelihood of the defendant interfering with the course of justice; Detention for protection of the defendant; and Criminal record of the defendant.5

Bail in Capital Offence The ACJA in section 161 provides that a suspect arrested, detained or charged with an offence punishable with death can only be admitted to bail by a Judge of the High Court. The defendant must show exceptional circumstance to enjoy bail. section 161 (2) describes “exceptional circumstances” as:ill health of the applicant which shall be confirmed and certified by a qualified medical practitioner employed in a Government hospital, provided that the suspect is able to prove that there are no medical facilities to take care of his illness by the authority detaining him;extraordinary delay in the investigation, arraignment and prosecution for a period exceeding one year; orany other circumstances that the Judge may, in the particular facts of the case, consider exceptional.6

Objections to trials Section 221 ACJA provides that the court shall not entertain any objections during criminal proceedings on grounds of an imperfect or erroneous charge. Section 396 (2 ) ACJA appears to suggest that objections may be raised at any time before judgment but the court shall not entertain or rule on any such objections until the time judgment is to be delivered.A communal reading of Sections 221 and 396 (2), it follows that a defendant may raise an objection during the trial but the court shall reserve its ruling on the objection until the substantive case is concluded. Ruling on the objection and judgment on the substantive case shall be given simultaneously when the trial is concluded. Olisa Metuh v. FRN (2018) 3 NWLR PT 1605 pg 1 7

In FRN v. Babalola Borisade (2015) All FWLR (Pt. 785) 227 a case involving a former Minister of Education prosecuted by ICPC. Nweze, JSC decried the use of interlocutory appeals to frustrate criminal trialssection 306 expressly abolishes stay of proceedings. The section provides that ‘the court shall not entertain any application for stay of proceeding. The effect of this section is that applications for stay of proceedings shall no longer be heard until judgment. In Olisah Metuh v FRN (2017) 4 NWLR (Pt. 1554) 108 at 131 the Supreme Court held that no court in Nigeria has the power to stay criminal proceedings.8

Also worthy of note is section 396 (3) which provide that a criminal trial shall proceed on a day-to-day basis until the trial is concluded. Where this is impracticable after arraignment, the parties to the proceedings shall not be entitled to more than 5 adjournments each pursuant to section 396 (4), provided that the interval between each adjournment shall not exceed 14 working days. Where it becomes impracticable to conclude the trial after both parties have exhausted five adjournments each, section 396 (5) is to the effect that the interval between further adjournments shall not exceed seven days inclusive of weekends. The court is also mandated to award reasonable costs pursuant to section 396 (6), this is aimed at discouraging frivolous adjournments.9

1. No Case Submission 2. Entry of Defence 3. Powers of Heads of Court to make Rules 10

No-case submission No-case submission may be at the instance of the court or on application by the defendant. (Section 302). Section 357 similarly provides that where at the close of the evidence in support of the charge, it appears to the court that a case is not mad out against the defendant sufficiently to require him to make a defence the court shall discharge him.At the stage of No-case submission the court is not to express any opinion on the evidence before it 11

When a No-case Submission may be made SUBERU v. STATE [2010] 8 NWLR (PT. 1197) 586. The Supreme Court, Per Fabiyi , J.S.C., mentioned the instances where a no case submission may be made and upheld. They are:-When there is no evidence connecting the accused person with the alleged offence;When the evidence adduced by the prosecution has been so discredited as a result of cross-examination;When the evidence is manifestly unreliable that no reasonable tribunal could safely convict on it.Discharge on a No- case submission is tantamount to an acquittal12

Prosecution has right of reply but not to re-open its case . See section 303 (1) where the defendant or his legal practitioner makes a no-case submission the court shall call on the prosecutor to reply. Defendant’s right of reply Under section 303 (2) the defendant or his legal practitioner has the right to reply to any new point of law raised by the prosecutor, after which the court shall give its ruling. 13

Factors to be considered in a No case submission In considering whether to uphold a no case submission, the ACJA provides that court’s discretion shall be guided by the following factors: whether an essential element of the offence has been proved. whether there is evidence linking the defendant with the commission of the offence; whether the evidence so far led is such that no reasonable court or tribunal would convict on it; andany other ground on which the court may find that a prima facie case has not been made out against the defendant for him to be called upon to answer. It is submitted that one or more of the above factors would suffice to uphold a no case submission. 14

Effect of a no case submission when rightly upheld Criminal Procedure Law (CPL) states – it is a discharge on the merits and the accused will be acquitted. A bar plea will avail him. IGP v. MARKE [1975] SCNLR 53 Administration of Criminal Justice Law (ACJL) jurisdictions – A discharge on a no case submission operates as an acquittal. S.239 (1) ACJL. EMEDO v. STATE [2002] 15 NWLR (PT. 789) 196Administration of Criminal Justice Act (ACJA) 2015 – A discharge on a no case submission operates as an acquittal. (Sections 302 and 357).Effect of a No-case submission if wrongly upheldThe appellate court will quash the order of the trial court acquitting the defendant and order a retrial to enable him to defend himself: COP v. Agi [1980] 1 NCR 234 15

Effect of no case submission rightly overruled Where a no-case submission is rightly overruled the defendant will be called upon to enter his defence . Any subsequent evidence adduced before the court is proper and material to the case. Chuka v. State [1988] 7 SCNJ 226; Olise Metuh v. FRN Effect of a no case submission wrongly overruledThe defendant may enter his defence or rest his case on the prosecution’s case. Any conviction based on subsequent incriminating evidence will be quashed on appeal as it is a nullity. The fact that he further took part in the proceedings is irrelevant. On appeal, the appellant would be entitled to an acquittal. Eregie v. Police [1954] 14 WACA 453. 16

Entry of defence The defendant or his legal practitioner is entitled to address the court at the conclusion of the prosecution case. The defendant may make a no-case submission or rest its case on the prosecution’s case. Where the defendant rest its case on the prosecution’s case, the court shall give a final judgment, adjudging whether the defendant is guilty or not guilty. Section 301 of ACJA Section 358 of ACJA states that if the defendant is not represented by a legal practitioner, the court shall inform him of the options available to him, namely:make a statement, without being sworn, from the place where he then is, in which case he will not be liable to cross-examination; or17

Entry of defence contd. give evidence in the witness box, after being sworn as a witness; in which case he will be liable to cross-examination; or call any witness or adduce any other evidence in his defence.Where the defendant is represented by a legal practitioner, the court shall call on the legal practitioner to proceed with the defence.18

Court to ensure that unrepresented defendant is fairly heard Where the defendant is not represented by a counsel, the law demands that the court makes efforts to ensure the defendant is fairly heard, that he gets the opportunity to cross examine all prosecution witnesses, that he conveniently puts out his defence and takes advantage of all available legal defences. The court cannot leave the unrepresented defendant unguided. However, failure of the court to ask the unrepresented defendant if he has any witness and inform him of his options in presenting his defence, will not vitiate the trial unless there is a miscarriage of justice against the defendant. See Anya v. The State [1965] NMLR 62. See also S. 360 ACJA. 19

Powers of Heads of courts to make Rules Practice Directions/Rules of court derive their sources from the constitution. Sections 236, 248, 254, 259 and 274 of the 1999 Constitution give the Chief Justice of Nigeria, President of the Court of Appeal, Chief Judge of the Federal High Court, Chief Judge of the High Court of the Federal Capital Territory and Chief Judge of State High Court respectively powers to make rules for regulating the practice and procedure in their respective courts. Furthermore, section 490 (g) of the Administration of Criminal Justice Act, 2015 provides that Chief Judge of the Federal High Court, or of the Federal Capital Territory or the President of the National Industrial Court may make rules generally for carrying into effect the purposes of the Act. 20

Front Loading for both the prosecution and the defendant: Some have argued that it has removed the presumption of innocence and the burden of proof on the prosecution to prove its case beyond reasonable doubt. This is clearly not so. The duty to make available materials before trial has to do with pre-trial proof of evidence. The proof of evidence is not evidence yet. At that stage, the Court is not to believe what is contained in the proof of evidence but that in the spirit of fairness, each party should know the case of his adversary in advance. If the prosecution would not be allowed to spring surprises on the Defendant, there is no basis upon which the Defendant should be allowed to do so. Justice is not a one way traffic. 21

The requirement to make available to the prosecution the material the defendant intends to rely upon is not limited to Nigeria. There are provisions in the law of the United Kingdom as well as other Common Wealth countries with the adversarial criminal justice system requiring for the defendant to frontload Under sections 5 and 6 of the Criminal Procedure and Investigation Act, 1996, of the United Kingdom, the defendant is required to give the prosecution a Defence Statement and the content of the defence statement are prescribed by section 6A of the Criminal Procedure and Investigation Act, 1996 (as amended). They are: the defendant must file a defence statement or case statement 22

the defence written statement must set out the nature of the defence, including any particular defence on which the defendant intends to rely indicates the matters or fact on which the defendant takes or join issues with the prosecution and why he takes such issue set out particulars of the matters or fact on which the defendant intends to rely for the purpose of his defence indicate the point of law, (including any point as to the admissibility of evidence) that the defendant wishes to take at his trial and any legal authority on which the defendant intend to rely for this purpose 23

in the case of an alibi defence, provides the name, address and date of birth of any alibi witness or as many of these details as are known to the defendant. Under section 6 (c) of the Criminal Procedure and Investigation Act, 1996, the defendant must give a Defence Witness notice and he is required to serve the Court and the prosecutor with the defence or case statement. 24

THANK YOU! 25