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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 the fundamental

right to fair hearing, which entails giving adequate time and facilities to an accused

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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 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.

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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 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

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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 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.

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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.

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

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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.

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

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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 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.

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.

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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 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.

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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

5. Google English Dictionary (Oxford languages)

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