Valley of Decisions: Biography and Essays in Honour of Hon. Justice Iorhemen Hwande

Chapter Sixteen - The Polemics of Summary Trial Procedure under Section 157(1) of CPC

Chapter Sixteen ~ The Polemics of Summary Trial Procedure under Section 15'7<1) ofCPC A.I. Ityonyiman, Esq* Introduction CriminalProcedure Code is an adjectivallawprescribing the mode by which criminal trials and appeal procedures are undertaken to ensure compliance with the rules of natural justice, constitutional fair hearing and general principles of human rights are observed and adhered to. The code accompanies substantive law ontheprescriptionof what is criminal e.g., the penal code. More importantly, the CPC regulates all criminal trials except where or otherwise expresslyexcludedbythelaw creatingthe offence. Thiswriteup however, is principally concerned with a single strand of thelawwhichprovides; If the accused admits that he has committed the offence of which he is accused, his admission shall be recorded as nearly as possible in the words used by * Senior Magistrate, Benne State Judiciary. 270 Valley ofDecisions him and ifhe shows no sufficient cause why he should notbeconvicted, the courtmayconvicthimaccordingly and in that case it shall not be necessary to frame a formal charge.' The Nigerian corpus juris admits to the adversarial system of justice. This system postulates the principles of; (a) Theburdenofproofrequiring the prosecutorto prove guilt of an accused. (b) Thepresumptionofinnocenceofthe accused until the trial judgeis convincedbeyond reasonable doubt ofhis guilt. (c) The standard ofproofby the prosecutorincriminal trialis provebeyond reasonable doubt. This, unlike what obtains in continental countries, the Scandinavian, oriental countries led by France, most of the old sovietunionstateswho until theembrace oftheAmerican styleofpresidentialdemocracypractisedtheinquisitorialsystem. The main feature ofthe inquisitorial system is the absence of the presumption of innocence. It is still their law that the prosecutionmust prove facts, but such proofis not until the accusedhasstated his defence. Thebeautyofthe inquisitorial system onthe part ofhumanrights and the administrationof justice is that motive replaces morality for their actions. TheabovestatutoryprovisionfashionsoutaSUIIIIIIllIYconviction ofan accused who makes a clear cut admission ofa set offacts synchronisedwiththeelementsofthe offenceheissaidto have committed.Thequickdispensationofjusticeisenhancedwhereit iscarefullyemployed.Thereverseisthatjusticemaynotbedone butratherassassinatedwherea wrongapproachisadopted. Itis 1 See Section 157(1) of the Criminal procedure Code Cap 51 Laws of Denue State 2004. 271 therefore a veritable toolto promote the quickdispensationof justice,yeta 'killerontherampage'on the converse. This write-up examines the why and how of the application of summary trial under the criminal procedure code. It concludes that summary trial procedure shouldbe directed towards attaining rather than assassinatingjustice. Philosophical Basis The philosophybehind this principle ofcriminal justiceis to put into effect a simple and summary adjudicatory trial procedure for the purpose ofquickdispensationofjustice.To putitsuccinctly, itaims at summary conviction of anaccused who makes a clear-cutadmissionto a set offacts that carry all the elements ofthe offencehe is said tohave committed. It is by no means an attempt or an avenue to avoid the rigours of a full trial. That may not be the immediate and central concern of the law which either in summary or full trial is to ensure thatthose who violate or are in conflictwith the law and are brought to justice, are convicted if proved guilty. This isbuttressedby thenewvogue inpleabargaining and negotiated sentencingsystem - e.g., the Economic and Financial Crimes Commission, the LagosACJL. Theviolation can only lead to conviction if the guilt is established. The summary trial procedure has not in anyway enthroned a short-circuitsystemthatwilltoywithorjeopardisetheliberty ofanaccused. Neitherisita shortcuttosidetracktheprocedural rituals and litany in a criminal trial. 272 Valley ofDecisions Modus Operandi Section 157(1) ofthe crirrrinal procedure code is employed, where section156ofthe same codehasbeencompliedwith.It is better understood when taken together with section 156. For avoidance of doubt section 156 ofthe code' provides; when an accused person is brought before the court the particulars of the offence ofwhich he is accused, shall be stated to him and shall be asked ifhe has any cause to show why he should not be convicted. What amounts to particulars ofthe offence? In the crirrrinal procedure code, the particulars of the offence are those particulars contained in the First Information Report of complaintorotherinformationwhichmustdiscloseanoffence.3 Theinformationorcomplaintfitsinto 'particulars' ofanoffence onlywhen anoffence is disclosed. Caselawinterpretationofparticulars ofthe offencetranscends those 'particulars' contained inthe First Information Report. Thus in Mohammed EI-Idrisu v. COP/ The appellant was takenbefore a magistrateona FirstInformationReportalleging thathehad drivena motorcarwithoutdue care and attention. The informationread: Nature of Information - Driving without due care and attention contrary to section 21 ofthe Road traffic law. PC21251 Silas Ibiloma ofMTD Kano complained that you Mohammed El-Idrisu ofPhilip Morris (Nig) 2 Criminal Procedure Code Laws of Benue State Cap. 51. 3 se. Gaxb. v. COP [2009] All FWLR (pt. 384) 260,2773 se. Gaxb. v. COP [2009] All FWLR (pI. 384) 260, 277. 4 [1973] NMLR 467. Ltd. Zaria drove a land Rover Reg. No. LN41 along city road on the 12th June 1973 about 1150 hrs without due care and attention and thereby hit a vehicle with reg. No. KAD 7488. 273 It was on record that FIR was read and explained to the accused who replied: "Theinformationis true. I agree that I drovewithout due care and attention. Iunderstood whatyou explained to me." In effect appellant admitted that he had drivenwithout due care and attentionandindeed showedno cause whyhe should notbe convicted. The ChiefMagistrate sentenced the appellant to imprisonment for six (6) months followingthesummaryconvictionproceduresetoutinsection 156 and 157ofthe criminal procedure code. Onappealitwashe1dthatthelliefMagistratedidnotcomply withthe requirement ofthis sectionby statingthe particulars ofthe offence tothe appellant. Thatthere are verymanyways inwhicha personcan drive withoutdue care and attentionto wit: driving too fast, driving on the wrong side of the road, failing to stop at a major road etc., and suchparticulars must be given to the accused personbefore he canbe convicted of an offence under section21 ofthe Road traffic law. In Garba v. COP; the Information Report against the appellant read: On 131712002 at about 1300 hrs the DPO, Kakuri Division, Kaduna transferred a case of criminal conspiracy, forgery and theft of money to the CID stating that sometime on 191212002, oneMr. Anthony Amiabu M of Security Dept. Peugeot Automobile Company Ltd(PAN) Kaduna reported that on the same 5 Supra p. 269. 274 Valley ofDecisions date, it was discovered that one Joseph Dashe M an employee ofPANNigeria Ltd. Kaduna conspired with one Yahaya Garba astaffofKaduna State Water Board HQ. Kaduna, forged some water bills in the name of PANLtd. Kaduna amounting to N336,763,OO, instead of N41,580.00 which was officially approved by the Head ofAdmin PAN Ltd Mr. Abdullahi Ohjele. As a result acheque ofthe sum ofN336,673.00 was raised andissuedfor the purposeafsettlingwater bills. Thereqfter the excess ofN295,183.00 was diverted and shared by Joseph Dashe and Yahaya Garba respectively contrary to sections 97, 364 and 287 ofthe Penal Code Law. After the First Information Report above was read and explained to onlythe 2nd accused/appellant, he confirmed that the information was true. The learned Chief Magistrate oonvictedandsentenredtheaccusedtosixmonthsimprisonment or NlO,OOO fine. His appeal to the High Court failed. On a further appeal to the Court ofAppeal, it was contended that there was nothing on the records or the FIR to show that the particulars ofthe various offences with which the appellant was chargedwere stated tohimso astojustify the conviction. It was held that there was no indication whatsoever in the particularsoftheoffenceastowhoraised orcausedtoberaised the said cheque and who issued or caused to be issued and thatwastherefore in contraventionofsection 156ofthe cpc. Itis a requirement of the law that particulars of the offence must reveal such details as to the specific actthe accused did that gave rise to the alleged offence. This is premised on the principle of fair hearing created in section 156 that the first step is to read and explain to the accused the particulars ofthe offence ofwhichhe is accused. 275 After the above procedure, the stage is then set to elicit infonnationfrom the accused.Itis inrespectofsuch areaction that the court is enjoined to put into effect the summary provisions withoutthe fonnal charge. By the combinedeffectofSections156 an 157ofthe Criminal ProcedureCode, the procedurefor summarytrialis provided wherebyapersonbroughtbeforeacourtuponFirstInformation Report (FIR) maybe convicted withouthearing evidence or framing a charge if certain conditions are satisfied. The conditions are: • That the particulars ofthe offence must be state to the accused; • Thattheaccusedadmitsthathehasannmittedconstituents ofthe offence; • That the accused is asked ifhe has any cause to show whyhe should notbe convicted; • He shows no sufficient cause why he should not be convicted.6 Itfollows fromtheforegoing thatconvictioniscontingentupon admissionofthe offence and failure to show sufficientcause why an accused should not be convicted. The questions of admissionoftheessentialingredientsoftheoffenceandshowing no sufficient cause must be satisfied before there can be convictionofsuch an accused! 6 Garb. v. cOP supra p. 276-277. 7 Se. Halliu v. COP [1970] 2 All NLR 178. 276 Valley ofDecisions Admission as one ofthe pillars ofSummaryTrial Whatamounts to an admissioninthis context?Itis defined as statementoralor documentarywhichsuggests andinference as to anyfacts inissue or relevant facts whichis madeby any ofthe persons.8 To warrant conviction, the explanation ofthe accused must amountto a complete admission and nomore. A clear cut admission of a set of facts that carry all the elements ofthe offencehe is said tohave committed.9 A veiledadmission, denialofresponsibilityand anexplanation any otherway is no admission inthe eyes ofthe law. Insuch circumstance, the magistrate mustproceed to takeevidence.tO In Okpala v. COpll there was an appeal against conviction andsentenceofthe appellantby anOtukpoSeniorMagistrate's Court for the offence of theft contrary to section 287 of the Penal Code secured under the summary trial procedure of section157(1) ofthe CriminalProcedure Code. The following is what transpired atthe trial: Court:- The Information Report was read and explained to the accused. Particularswere: Theftpunishableundersection287ofthePenal Code. OnJune 17th, 1983 at about 1445 hours, one Daniel Aku of Lower Benue RiverBasinDevelopmentAuthority Makurdi came to the station and reported that one Samuel Okpara had stolen a Peugeot504 saloon car registration No. FGN8051Avalued 8 See section 19 of the Evidence Act Cap E14 Laws of the Federation of Nigeria 2004. See also Ogunaike v. Ojayemi [1987] 1 NWLR(Pt 53) p. 760. 9 Okpala v. COP (supra) p. 46 10 Okpala v. COP (supra) p. 46. 11 Okpala v. COP (supra) p. 47. 277 at N10,OOO - the property of the Federal Government of Nigeria which he parked at 1 Federal Road Otukpo on the night ofJune 16th-17th, 1983. Accused:-Iunderstand. Court-Canyoushowcausewhyyoushouldnotbe convicted? Accused:- The vehicle was rescued from me with a boy who was convicted. He gaveme the vehicle. Theybroughtit to me in Gboko. Court: I am not satisfied with your plea. The boy convicted said you gave him the vehicle. You are therefore summarily convicted under section 287 of the Penal Code in accordance with section 157 of the Criminal Procedure Code. Allowing the appeal, the High Court per Idoko and Eri, J.J., heldthattherewasno clear admission ofguiltby accusedbut an explanation denying responsibility, the duty of the lower courtwas to take evidence and proceed to full trial. In Okpara's case, the High Court was of the view that the pleaoftheaccusedamountedtoa denialofresponsibilitywhich required a full trial. InAkpayi Usman v. EnvironmentalSanitationu theappellant was dragged to an Environmental Sanitation court for the offence ofconductingvulcanisingbusiness during sanitation hours contraryto section9(iv) Act2005. Informationwas said tohavebeen read to the accused who pleaded as follows: Accused: My children took my engine to the work place so whenI went there to retrieve it, Iwas arrested. Court: The accused is (sic) find guilty and convicted under 12 Unreported Appeal No MHCI11AJ2010 of 16th December, 2010. 278 Valley ofDecisions section 24 Environmental Sanitation Authority Law 2005. He is sentenced to NIOOO or two months imprisonment. Afterconvictionand sentencethefollowing dialoguebetween prosecutor, accused and the courtensued. Prosecutor: The accused isfighting members oftheTaskForce as he is sentenced to pay a fine. Accused- I did not fight. CourtTheaccusedisfound guiltyofcourtcontemptforfighting with members of the Tasks Force in the court. He is sentenced to four months imprisonment. The Makurdi High Court on appeal per Kaka'an & Ejembi J.J., in faulting the convictionheld: ...the conviction and sentence of the appellant was certainly it would appear based on his plea ofguilty under section 157 ofthe Criminal Procedure Code but the appellant did not plead that he was guilty and even iffrom what he said it could be inferred that he pleadedguilty, the plea was equivocal. Therefore it was wrong of the learned Magistrate to claim to have convicted him summarily. And then came the allegation from the Task Force that appellant fought to which allegation the appellant flatly denied... In scene one, the accused denied conducting vu1canising business during sanitationhours. He equally putup a denial in scene two of his trial over the allegation that he fought members ofthe Task Force. 13 See Alechenu v. cOP [1982] I NLR 100., 107. 14 Alechenu v. COP (supra) p. 102. 279 Showing Cause as the Second Pilarin SummaryTrial How does an accused show sufficient cause in a summary trial in the eyes ofthe law?Any explanationby an accused in suchcircumstanceswhichgoes evenvery slightly orminutely to show thatthere isno express admissionsufficeS.13 Itisimmaterialthattheexplanationfailstosatisfythemagistrate inhis expectationsbecause the accusedhasno dutyto satisfy the magistrate thathe did not commit an offence. In Alechenu v. copt.the appellant was broughtbefore the Senior Magistrate's Court Otukpo on a First Information Report alleging criminal breach oftrust contrary to section 314of the Penal Code. Thenecessarypart ofthe information read: On November 26th, 1981 at about 1415hours one C.I. Ogah ofthe Local Government Office, Otukpo came to the station and reported that on November 25th, 1981 at the Local Government Officehe entrusted a Peugeot504, registration No. BNLG5017T, valued N7,800 to Peter Alechenu and on November 26th 1981, PeterAlechenu, of No. 48 Upu Road, Otukpo, reportedthatthe carhadbeenstolenbyanunknown person orpersons 5.314ofthe Penal Code suggested. Court: The FirstInformationReportwas read and explained to the accused. Accused: Iunderstand the allegation against me. Court: Canyou show causewhyyou should notbe convicted under 5.157ofthe Criminal Procedure Code. Accused: On November 26th, 1981, I was the driver of the vehicle BNLG 5017T, inwhich we wentto Yangede for official duty. We returned to Otukpo at about 7.30 pm. I drove to CouncillorAdole'shouse andhe orderedme to 280 Valley ofDecisions go and drop the other officer in the G.R.A. After doing so I wentbackto CouncillorDenisAdole and toldhim I had a fever and he gave me N1 to buy some medicine. I drove straight to my house because the fever was worrying me. I parked the car in my compound after getting some treatment. At about 1.45 am. I heard the soundofthevehicleandIopenedthedooranddiscovered thatthe vehiclehadbeen stolen. Court: Where did you usually park the vehicle after official duties and how long have you been a driver with the Otukpo LocalGovemmentAuthority? Accused: I usually park at the Otukpo Local Government Authority Secretariat after official assignments. I have been a driver with the Otukpo Local Government Authority for over oneyearnow. This wasthe first time I parked this car in my compound. I did notget anyone to see that the car wasnot stolen. Court: The accused acted mostnegligentlyby failing to park the carwherehehadusuallyparkeditfor over oneyear. Heis aware ofhowrampant cartheftis alloverthe state andinOtukpotowninparticular. The cause the accused hassofar shownamountsto anadmissionofhisoffence. This isbecause of(a) his failure to parkthe car wherehe usually parked it at Otukpo Secretariat; (b) failure to getsomeone to lookafter the carwhenhe was unable to drivethe carbecause ofa fever; (c) failure togetsomeone to go and park the car at the Otukpo Secretariat, or even to send someone to inform the councillors, or councillor, or the complainant, as to why he could not drive the car back to the Secretariat. I am therefore not satisfiedby the cause shownby the accused inthis case 15 See Mohammed v. COP [1967] NMLR 83,87. 281 as it amounts to an admission. I therefore convict him summarilyunder5.157ofthe CriminalProcedure Code, because he breached the trust reposed in him. (Emphasis supplied). Theleamedseniormagistrateafterthusconvictingtheappellant proceeded to sentencehim to "three months" imprisonment withoutthe option of a fine. Punishment A smooth sail through summary trial proceeding can stillbe vitiatedbyhighhandedness inthe award ofpenalty. Thetrial magistrate must adverthis mind to the provisions ofthe law governingsummary conviction. The law envisages a limited sentence.15 The Criminal Procedure (punishment on conviction) order 1966, applicable toBenueState fixed the maximumpenalties on convictionunder section157as follows: ChiefMagistrate: two years' imprisonment and N400 fine Magistrate Grade I: One year's imprisonment and N200 fine MagistrateGradeIT: NinemonthsimprisonmentandN100fine MagistrateGradem:Threemonths'imprisonmentandN60fine. Punishment is therefore another yardstickin measuring the correct application ofthe summary trial procedure. Itis very easyto veer offeitherinthetrialor award ofpunishment. The High Courthas had cause to quash proceedings for reasons ofexcessive and outrageously arbitrary punishment. Thatis, punishmentmeted outwithout due regard to the provisions onpunishmentfor summaryconviction. ForinstanceinNenge 16 Soo umeported suit No VHC/30ml2005. 282 Valley ofDecisions Aba v. Registrar CMC Adikpo & Anor. an Adikpo Chief Magistratehad sentenced the accused who stood trialbefore itfor the offences of driving without due care and attention and operatingwithout a driver's license. The trial Magistrate had sentenced the accused to NBOOO on each count and the total fine amounted to the sum of sixteen thousand Naira. The High Court Vandeikya did not waste time in quashing the proceedings via an order of certiorari.'6 Challenges, ProblemsAssociated with the Procedure The summary trial procedure is advantageous in the quick dispensationofjustice. Be that as itmay, ithas its drawbacks. Where the trial court embarks on the procedure, it is bound tometeoutpunishmentgoverningitItcannotawardmaximum punishment as if it were a full trial. Even in very serious offenreslikekidnappingwhichcarrieswithitanimprisonment term oftenyears, the courtmayhaveno alternativethanhave recoursetotheCriminalProcedure (punishmentonsummary conviction) Order1966referredto inthe course ofthis article. Notmanypeople may appreciate the predicamentofthe trial courtinthis regard.As a way out, a case is made for a full trial instead of the summary trial as the tendency of resorting to that limited sentence maynot meet thejustice of the matter. Theprocedure is also anathemato the conceptofpresumption ofinnocence as enshrinedin section36(5) ofthe Constitution17 "Every person who is charged with a criminal offence shall be presumed to be innocentuntilhe is proved guilty." 17 Sec section 36(5) of the Constitution of the Federal Republic of Nigeria 1999. 18 Price - Retrograde Legislation in Northern Nigeria 24 Modern Law Review at 610 [1961]. 283 The summary trial procedure requires, the admissionby the accused. The invitationto the accused to make an admission is like shiftingtheburden to the accused to provehis guilt. Showingsufficient cause is akin to callinguponthe accused to establish his innocence. Thatwould seem to fly inthe face of the accusatorial or adversarial system of justice which requires the state to prove its case against an accused person. Commenting on ss. 156 and 157, Price" said: it appears that the golden thread ofBritish Criminal Justice Act it is for the prosecution to prove its case and not for the accused to prove his innocence, has been completely broken. NikiTobp9 submitted: What is material and important is the unorthodox legal task given to the accused to show cause why he should not beconvicted. The very moment the accused is addressed in that way, there is the presumption that he is guilty ofthe offencefor which he is charged, and that the onus is on him to prove the contrary. In that respect, the provisions of sections 156 and 157 are inconsistent with the constitutional guarantees. It is hoped that the Supreme Court will have an opportunity to examine the provisions in the light ofthe Constitution. 19 Criminal Procedure & Evidence in Nigeria 2nd cd. [Lagos, 1977]. 284 Valley ofDecisions The foregoing arguments have some force in them. To call upon an accused to satisfy the court as to why he should not be convicted is tantamount throwing upon the accused the burdenofconvincingthemagistratethattheaccusedisinnocent or knows nothing of the allegation againsthim. Thatwould occasion a miscarriage of justice much more than enhance the quick dispensation ofjustice. Onthe partofthe convictwehave challengesofilladvice and second thought. For instance if an accused is aware of the repercussion of anearlypleahe may refrain from making an admission. Inthe same vein the capacityofthe prosecutionis put to task when it comes to full trial. Lastly, summary trial may notbe applicable to certain offences for instance capital offences. Conclusion The summary trial procedure may be a veritable tool in the quick dispensation ofjustice, it rubs on the presumption of innocence;itsmisapplicationmayworkinjusticeandthefailure to follow the form of liturgy and ritual in the conduct of the ritual orthe proceedingwill assassinatejusticeratherthando it. ...