Trial in absentia is not novel to our administration of Criminal justice system, but it is odd. In our law, anybody reasonably suspected of having committed a criminal offence, must be brought before a court of competent jurisdiction to determine his guilt or otherwise, innocence. Hence, there’s no wrong without a remedy. The law also recognizes the innocence of an accused person, until his guilt is established. That is why the courts sometimes grant bail to the accused person(s) if it deems it expedient, in the interest of justice. On ground that they will be made available by the surety to stand trial for the charge brought against them. Trial in absentia therefore arises when a suspect granted judicial bail absconds and thereby fails to appear in court on an appointed day for continuation of trial. In this circumstance, the law empowers a judge to go on and try him even in his absence. Our concern however is on the legality or otherwise of this said provision especially when compared with the relevant provisions of the Constitution. This analysis therefore seeks to excavate the law in relation to trial in absentia in Nigeria in determining it’s lawfulness or illegality.
Trial in absentia explains a situation in criminal proceeding where trial goes on in absence of the defendant who is subject to be tried physically.
Just recently, the news filtered into the public domain that Justice Okon Abang of the Federal High Court, Abuja has ordered the trial in absentia of former Chairman of the defunct Pension Reformed Task Team, Abdulrasheed Maina, who is standing trial over allegations of fraud to the tune of 2bn. He had earlier attended court on July 2, 2020, and failed to attend proceedings subsequently. The trial judge had adjudge him as having jumped bail in a ruling delivered on November 18, 2020. The judge on the same November 18 ruling, revoked the bail earlier granted him, ordered his arrest, and directed that his trial would proceed in his absence.
This is not however, the first time trial in absentia is being ordered by Nigerian judges. Recall that around November 20, 2018, Justice Ahmed Mohammed of the Abuja Division of the Federal High Court, held that it would go ahead with the trial of former National Security Adviser (NSA), Col. Sambo Dasuki (rtd), whether he was present in court or not. Dasuki, who was standing trial over allegations of illegal possession of firearms and money laundering in the unfettered arms deal of over $2bn had vowed not to submit himself for trial any longer, following the refusal of the prosecutor to obey court orders regarding his bail.
Similarly, sometimes around May 2018, the Federal High Court Abuja, presided over by Justice Okon Abang, ordered that the trial of former National Publicity Secretary of PDP, Olisa Metuh will be conducted in his absence because of his misconduct.
Our criminal justice system in Nigeria ascribes some measure of rights and privileges to a defendant standing trial before any court of justice. The most prominent of which appears to be the right to fair hearing. Being one of the pillars of natural justice as we all know, this right is inalienable, notwithstanding anything to the contrary. By virtue of Section 36(4) of the Constitution, 1999 as amended, “whenever a person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair trial in public within a reasonable time by a court or tribunal.” By extension, the principle of Audi Alteram Patem, a Latin maxim which loosely translates to mean that: ‘each party to a conflict shall be given an opportunity to be heard’, is an offshoot of the right to fair hearing. See MILITARY GOV. OF LAGOS STATE & ORS V. ADEYIGA & ORS (2012) LPELR-SC.112/2002.
Trial in absentia is not new to our criminal justice system, especially our substantive laws. In fact Section 39 (1) of TELECOMMUNICATIONS AND POSTAL OFFENCES ACT [1995- LAWS OF THE FEDERATION] supports trial in absentia. The section provides that: “The absence from Nigeria of a person accused of an offence under this Act shall not prevent his being tried and convicted under this Act.” Similarly, section 27 of Decree 18 of 1994 made similar provisions as follows: “27(1) The absence from Nigeria of a debtor or of a person who has committed an offence under this Decree shall not prevent his case being heard and determined or his being tried and convicted under this Decree. (2) An order of the Tribunal made pursuant to a hearing or trial under subsection (1) of this section shall, where expedient, be executed in the absence of the debtor or person convicted, but the commencement of a sentence of imprisonment shall be deferred until his return to Nigeria.” The Supreme Court in UWAGBA V. FRN (2009) LPELR-SC.29/2007 pursuant to section 27 of Decree 18 of 1994, held in favour of the said section and stated that the appeal could be pursued to its logical conclusion by the court below even in the absence of the appellant from this country and he can be convicted. All orders given by the court against the appellant could be executed in his absence except if it is a sentence of imprisonment which shall be deferred until his return to the country. That indeed is what the law prevailing provided. The provisions are clear enough requiring no importation of any rule or interpretation apart from the natural rule. The court relied on the following cases: Adeoye v. State (1999) 4 SCNJ 136; Kotoye v. Saraki (1994) 9 NWLR (Pt. 357) 414 D – R; IBWA v. Imano Nig. Ltd. (1988) 3 NWLR (Pt.85) 633 at 651; Okunagba v. Egbe (1965) 1 All NLR 62 at 65.”Per MOHAMMAD, J.S.C (P. 17 ,Paras. A-A)
The whole of Criminal Code Act, Penal Code Act, Criminal Procedure Code and Criminal Procedure Act, did not reveal any suggestion as to whether a defendant can be tried in his absence. It must be noted that the absurd provision also crept into the latest Administration of Criminal Justice Act, which came into force on 13th May 2015. The said Act by Section 352(4) provides as follows: “Where the Court, in exercise of its discretion, has granted bail to the defendant the defendant in disregard for the court order, fails to surrender to the order of court or fails to attend court without reasonable explanation, the court shall continue with the trial in his absence and convict him unless the court sees reasons otherwise, provided that proceedings in the absence of the defendant shall take place after two adjournments or as the court may deem fit.”
Section 266(a) of ACJA, 2015 also made provisions for instances in which a defendant’s presence in court may be dispensed with, it provides that, “A defendant shall, subject to the provisions of section 135 of this Act, be present in court during the whole of his trial unless:
(a) he misconducts himself in such a manner as to render his continuing presence impracticable or undesirable.
In 1999, the Supreme Court PER OGUNDARE, J.S.C. in (P.8, paras.D-E) held in the case of ADEOYE V. STATE (1999) LPELR-SC.178/1997 that, “It is not part of our criminal jurisprudence to try a defendant in absentia. Section 210 of the Criminal Procedure Act requires a defendant to be present throughout his trial except in two cases provided for in sections 100 and 223 of the Act.”
Similarly, in OKEKE V. THE STATE (2003) LPELR-SC.259/2000, the Supreme Court further observed that, “The following requirements of a proper arraignment have been recognised: 1. The accused person shall be present in court unfettered unless the court shall see cause to otherwise order that he be fettered. The requirement that an accused person shall be present in court marks a difference between our criminal jurisprudence and that of jurisdictions where trial in absentia is allowed.” The court further stated that, “An arraignment is not a matter of mere technicality; it is a very important initial step in the trial of a person on a criminal charge. All the authorities recognise that where there is no proper arraignment, there is no trial. ‘Failure to comply with any of these conditions will render the whole trial a nullity’.” Per Ogundare, J.S.C. (Pp.38-39, paras.F-E).
It is instructive to note that whenever the Supreme Court makes pronouncement in respect to a particular provision of law, such a pronouncement repeals the said offensive provision.
The Nigerian judiciary have given sound judgements in vehement opposition to the concept of trial in absentia. As a result, the courts have long settled the fact that trial in absentia is a sham and novel to the administration of our criminal justice system.
The provisions of Section 352(4) of ACJA 2015, which provides for trial in absentia is a gross violation of the right to fair hearing as contained in Section 36(4) and 6(6)(d) of their Constitution of Nigeria, 1999 (as amended) and therefore inconsistent with the letters and spirit of the 1999 Constitution (as amended) and as interpreted by the Supreme Court in Dingi Mohammed v. State (2018) 5 NWLR (Pt. 1613) P.540, on Legality or otherwise of trial in absentia, the apex court has this to say:
“Trial in absentia is a procedure unknown to Nigeria procedural law. It is obviously a negation of fair trial. A trial of the accused person in his absence is a sham.” It must also be noted that the 1999 Constitution of Nigeria is supreme, and shall prevail over any other law(s) which comes in conflict with it. Therefore, and any other law which is inconsistent with any of it’s provisions shall to the extent of it’s inconsistency, be null and void. See section 1(3) of the Constitution.
The major hardship occasioned by trial in absentia is that the defendant standing trial will not be heard before a criminal charge against him is determined. Even when our law recognize that both parties be heard thoroughly before the determination of a cause in which they are interested in. Similarly, the defendant will not also have the golden opportunity to cross-examine those prosecuting him or even take some objections whenever a frivolous evidence is sought to be tendered. The only remedy at the conclusion of the cause is to appeal the conviction, if the defendant was thereafter convicted. But this is even riskier, given that the appeal court cannot take the place of the trial court who had the opportunity to witness the proceeding first hand, heard the witnesses testify and evidence adduced. We are however consoled by the fact that where a conviction is appealed, the court of appeal either quashes the conviction or send the matter to be tried de novo by another judge and where there are evidential issues, the court of Appeal may put itself in the position of the trial court and admit or evaluate the evidence or send it back to the trial court for retrial. In any of these remedies identified, the delay and waste of resources in getting justice will still be a hindrance to substantial justice.
It is in our humble view that Section 352(4) of ACJA, 2015 should be invoked only when all court orders as regards the appearance of a defendant and forfeiture of his bail bond is not possible. Then the court in the last resort can decide to proceed provided that it would not cause a miscarriage of justice. At all times, the interest of justice should weight heavily in the mind of the court.
We also humbly submit that given the myriad of travails trial in absentia is sure to occasion on a defendant, it cannot be said to be the best procedure in determining the guilt of an accused person. The courts must therefore find a way to navigate the problem posed by trial in absentia in order to avert injustice.
Trial in absentia, although entrenched in our substantive laws, is unlawful and the courts must warn itself of the dangers in ordering same. The courts must therefore respect the rights of any defendant standing trial before it. We are of the view that the security situation must be improved to enable security agencies compel the attendance of defendants to stand trial at any time. We align ourselves with the view of William Blackstone in stating that it is better that ten guilty persons escape than that one innocent suffer.
About the Author
Ekuma, Chinonso George is the President, Ebonyi State University Students’ Bar Council and the Head, Department of Research, EBSU Law Clinic. He is passionate about law practice and his tenure has so far engaged Students into Internship programs in best law firms across Nigeria, and currently, the Federal High Court, Abakaliki. His areas of interest include: Litigation, Energy and Natural Resources, Intellectual property, Banking and Finance and Corporate and Commercial practice.
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