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LEGAL CONUNDRUM OF SUMMARY TRIAL IN RELATION TO FAIR

HEARING PROVISIONS OF THE CONSTITUTION OF THE FEDERAL

REPUBLIC OF NIGERIA

INTRODUCTION

1. The word “Summary” is an English word which means a brief

statement or account of the main points of something. From a legal

perspective, summary means a judicial process conducted without the

customary legal formalities. It is a legal process that is immediate and

without delay.

2. Trial is the process finding out by due examination of the pony in

issues. It is a formal judicial examination of evidence and determination of

legal claim in an adversary proceeding. In Nigeria, notwithstanding the

peculiar nature of the military judicial processes, some cases are tried

summarily. Summary trial in the Nigerian military is provided for under the

Armed Forces Act Cap A20 laws of the federation of Nigeria 2004 (the Act).

3. However, right from time, the emergence and development of

fundamental human rights aimed at the protection of all rights of human

beings which they are acquired simply by being humans. These rights are

said to rise above the ordinary laws of the land. In Nigeria, these rights are

enshrined in the constitution of the federal republic of Nigeria 1999 as

amended. Most particularly, section 36 of the Constitution provided for

fundamental rights to fair hearing.

4. Summary trials, being a trial that defy customary legal procedures,

raises issues of compliance with the constitutional provisions as regards

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the fundamental right to fair hearing, which entails giving adequate time

and facilities to an accused person to prepare for their defence. This

paper, is an attempt to appraise the legal conundrum in summary trials as

regards the constitutional provisions on fair hearing.

AIM

5. The aim of this paper is to explore legal conundrum in military

summary trials from perspective of right to fair hearing in the Nigerian

constitution with a view to making recommendation.

OVER VIEW OF SUMMARY TRIALS

6. Summary trial is a quasi-judicial procedure set to determine the guilt

or innocence of an accused person. Its hallmark is speed as against the

normal legal procedure. In the Supreme Court case of Ralph Uwazuruike

and Ors. v. Attorney-General of the Federation, summary trial was

described in the following paragraph:

“Summary trials are short and fast. Cases tried summarily are

disposed in a prompt and simple manner…t is often carried out

brevi manu”

7. The purpose of summary trial, most particularly in the military is to

reduce the possibility of over burdening the military courts, which will

make the administration of criminal justice near impossible in the military.

The act gave commanders and commanding officers the power to dispose

minor cases summarily and award punishments accordingly. Making this

brevi manu arrangement makes it possible for commanders and

commanding officers to sieve cases of light magnitude and deal with them

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without going through the rigour of convening a court martial. Without the

summary trial procedure, the armed forces may find itself spending a

substantial amount of it time on administration of criminal justice, that is

to say if all cases are to be tried by court martial.

8. In the Nigerian, summary trial is provided for by the act and then

some policies and regulations. Sections 115, and 116 of the Act expressly

spelt out the powers of commanders and commanding officers in

summary trials of both officers and soldiers. These include the scale of

punishments they can award and the ranks of officers and soldiers they

can try summarily. Section 117 of the Act laid a condition precedent for

the summary trial of officers, warrant officers and petty officers, which is,

these personnel must be given an option of trial by court martial before

they can be tried summarily. However, section 124 (6) of the Act

highlighted a number of offences that cannot be tried summarily. Section

147 of the Act dealt with post trial procedure for summary trials. The

section gave appropriate superior authority the power to review summary

trials either through a petition it received or suo moto. It equally has the

power to quash such findings and awards or vary the award by

substituting the punishment awarded. This is to ensure some compliance

with the tenets of fair hearing as a fundamental right in all trials.

FAIR HEARING UNDER THE CONSTITUTION OF THE FEDERAL

REPUBLIC OF NIGERIA 1999

9. The 1999 Constitution of the Federal Republic of Nigeria, 2011 as

amended has provided and guaranteed the right of fair hearing and fair

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trial. Sections 35 and 36 of the Constitution of the Federal Republic of

Nigeria 1999 covered a wide range of these rights and made adequate

provisions for their protection. The provisions of section 36 of the

Constitution covered general conditions for the right of fair hearing of

every citizen. The determination of a person’s right in civil proceedings as

well as rights in criminal proceedings generally entails that a person shall

be entitled to access to justice in the court or a tribunal within a

reasonable time and will be availed of adequate facilities to prepare for

defence.

10. The term Fair Hearing has received a judicial blessing in the case of

Ezechukwu V. Onwuka , where the Court of Appeal pointed out that;

“Fair hearing is a hearing which is fair to all parties to the suit,

whether the plaintiff, the defendant, the prosecutor, or the

defence.”

11. Furthermore, Section 35(4) of the 1999 Constitution as amended

provides that an arrested or detained person shall be brought before a

court of law within reasonable time. A reasonable time is defined under

Section 35(5) of the constitution as, one day where there is a court of

competent jurisdiction within 40km radius, and in any other cases, two

days or such longer period, in the circumstance which the court may

regard as reasonable.”

12. The effect of this provision is that, where the accused person is not

brought to court within a reasonable time, whatever reasons the

prosecuting authority may have for his continued detention, he must be

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released on bail unconditionally or conditionally, after two months or three

months depending on whether or not he is entitled to bail.

13. Section 36(3) provides that criminal trials must be heard in public

(except in rare cases, such as where children are involved). Anyone can

attend a trial, including victims, the media and the general public.

14. Section 36 (4), under this section, whenever a person is charged

with a criminal offence, he shall unless the charge is withdrawn be entitled

to a fair hearing in the public. In other words, the room or place in which

any trial is to be conducted shall be an open court to which the public may

have access to.

15. The proviso to Section 36(4) further classifies certain instances

when the public may not be permitted during a criminal trial. For example,

during trial of juvenile.

16. Section 36 (5) of the constitution provides for the presumption of

innocence. It is the duty of the prosecution to prove the accused guilty as

charged. The standard of proof in criminal cases is beyond every

reasonable doubt. Until this duty is discharged by the prosecution, the

law sees the person standing trial as innocent and as such is entitled to

his fundamental rights. Where a person is entitled to bail and the

conditions are met by the defence, the court has the jurisdiction to grant

such request. By Section 35(7) (a), bail for a capital suspect is not

ordinary. It can only be granted under exceptional circumstances.

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17. Section 36(6) is to the effect that everyone who is arrested or

detained must be told what their rights are and how to access these

rights.

These rights can be classified to include the right to notify someone of

their situation and the right to legal representation among others.

18. Section 36(7) of the constitution provides that when any person is

tried for any criminal offence, the court shall keep a record of the

proceedings and the accused person or any person authorized by him in

that behalf shall be entitled to obtain copies of the judgment in the case

within seven days of the conclusion of the case.

19. Section 36(8) provides against the use of retrospective law in

criminal proceedings. A person is not guilty of an offence except where

the conduct is declared to be an offence in a written law as at the time, he

does the act and the punishment stated. Neither will a person receive

punishment higher than prescribed by the law as at the time when the act

or omission that constitute the crime was made.

20. Section 36(9) deals with the law against Double Jeopardy. In

common law countries, a defendant may enter a peremptory plea of

autrefois acquit or autrefois convict. If this issue is raised, evidence will be

placed before the court, which will normally rule as a preliminary matter

whether the plea is substantiated; if it is, the projected trial will be

terminated.

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21. Section 36(10) CFRN provides that no person who shows that he has

been pardoned for a criminal offence shall again be tried for that offence.

This is provided for under Section 175 of the Constitution.

22. Section 36(11) provides that no person who is tried for a criminal

offence shall be compelled to give evidence at the trial. Since statements

made to the police constitute the most important evidence in criminal

trial, it is necessary that the statement must be voluntary and not in any

way induced.

23. Section 36(12) provides that a crime or offence is any act or

omission prohibited by a written law.

THE LEGAL CONUNDRUM: SUMMARY TRIALS VIS A VIS FAIR

HEARING

24. Summary trial in the military is the type of trial wherein the accused

is tried by the commanding officer alone standing in, as a judge, after all

the pre-trial procedure. The pre-trial procedure includes investigation

when an allegation is made against a service personnel and drafting the

charge(s) if the investigation reveals a prima facie case against such

personnel. The accused personnel is marched to the office of the

commanding officer by the Regimental Sergeant Major, (RSM) in the case

of soldiers (other rank), or by an officer who is senior to the accused if the

accused is an officer. Usually, the trial takes a short period with witnesses

on both sides testifying after the accused takes his plea and ends the

same day with the commanding officer pronouncing whether the accused

is guilty or not. The commanding officer also pronounces the punishment

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immediately and where the accused person is found guilty, the

punishment takes effect immediately as there is no requirement for

confirmation.

25. The powers of command of all the commanders in the Nigerian

Armed Forces to summarily try an officer or a soldier are contained in

Sections 115 and 116 of the armed forces Act. It is not all the offences in

the Act that are triable summarily. Section 124 (6) specified the offences

that cannot be tried summarily. They include, aiding the enemy,

communication with the enemy and cowardly behavior among others.

However, there are some offences which are not included in Section 124

(6) of Act among offences that cannot be tried summarily but in the real

sense, they cannot be tried summarily because of the nature of the

offence and the punishment it carries. For instance, murder. The offences

that cannot be tried summarily are tried by court martial.

26. Summary trials are essential to the armed forces of Nigeria because

of the purpose it serves, that is speedy delivery of justice. The rights of an

accused person in a military summary trial in Nigeria are same as

provided in the Constitution for every criminal case. However, are these

rights protected in summary trials? Let us look into these rights carefully

as they apply to military summary trials.

27. In any trial in Nigeria, the right to fair hearing is paramount. The

Supreme Court of Nigeria held, with regard to fair hearing in the case of

Orugbo v Unaiii that:

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“fair hearing lies in the procedure followed in the determination of

the case and not in the correctness of the decision. Where a court

arrives at a correct decision in breach of the principle, an appellate

court will throw out the correct decision in favour of the breach of

fair hearing.”

28. This right is guaranteed by Section 36 of the Constitution of the

Federal

Republic of Nigeria (CFRN) 1999 as amended. Impliedly the right to fair

hearing entails many different forms of judicial arrangements and rights.

The issue begging for determination is, how fairly is the right to fair

hearing as enshrined in the constitution accorded to an accused person in

military summary trials? The rights highlighted below are believed to be

adequately protected:

a. Right to be informed of the crime the accused person

committed. A copy of the charge sheet and summary or abstract of

evidence is usually given to the accused at least 24 hours before the

trial.

b. The accused is usually asked before the trial, if he would

dispense with

the attendance of witnesses whose evidence are contained in the

summary or

abstract of evidence and if he is so willing, he should signify in

writing.

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c. Commanding officer do not try cases to which they are likely

to be a

witness, to avoid the allegation of bias.

d. The accused is allowed to bring his own witnesses and cross

examine

the witnesses who testified against him.

e. Officers, warrant and petty officers are given options to be

tried by court martial if they so wish as provided by the Armed

Forces Act.

29. However, right to fear hearing also entails availing the accused

adequate time and facilities to prepare for his defence. This is obviously

absent in summary trials. The accused is arraigned, tried and convicted or

acquitted on the same day. This arrangement deprives the accused

person of his right to adequately put his case in order and arrange his

defence.

30. Another fundamental element of fair hearing absent in summary

trials is right to counsel. Section 36 of the Constitution is categorically

clear that any person charged with a criminal offense is entitled to

counsel. This gross disregard maybe tantamount to breach of right to fear

hearing and may bring the outcome of summary trial to questions in the

eyes of justice.

31. The right of appeal in summary trials in the military is taken and

replaced by a right of petition. Notwithstanding the right of petition, the

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decision of summary trials takes effect immediately, and not after the

right of petition is exhausted.

CONCLUSION

32. The right to fair hearing is an absolute right and is necessary for the

just determination of both civil and criminal case anywhere. Summary

trials are required most especially in the military for just and speedy

determination of criminal cases. However, a balance needs to be drawn

between the speedy dispensation of justice and the fundamental right to

fair hearing. This paper was able to highlight areas of concern for right to

fair hearing in summary trials in our military. It is hoped that the issues

will be addressed adequately and a better picture of summary trials in the

military be created.

RECOMMENDATIONS

33. It is therefore recommended that:

a. The act should be amended to give room for right to counsel

in summary trials.

b. Summary trial procedures should give the accused person

time after arraignment to prepare for defence.

c. The act should amended to make the decisions of summary

trials to take effect only after the right of petition is exhausted and

not immediately upon pronouncement.

Basawa, Zaria. AH YAHYA

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REFERENCES:

1. Constitution of the Federal Republic of Nigeria 1999 as amended.

2. Armed Forces Act, CAP A20 LFN.

3. O Boniface Precious Oluebube, “The Doctrine of Fair Hearing in

Administration of Criminal Justice in Nigeria (A Critical Evaluation)”

academia.edu, last accessed 16 May 24 http://surl.li/tsfqb

4. Patience Nneka Nwachi, “Critical Analysis of the Military Justice

System in Nigeria” kubanni-backend.abu.edu.ng, last accessed 16

May 24 http://surl.li/tsfoh

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5. Google English Dictionary (Oxford languages)

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