SECURING THE ATTENDANCE OF ACCUSED PERSONS: THE LAW AND PRACTICE IN NIGERIA

SECURING THE ATTENDANCE OF ACCUSED PERSONS: THE LAW AND PRACTICE IN NIGERIA

When allegations or complaints are made against accused persons, they must attend court to answer those charges brought against them. This is what is known in law as “attendance”. The attendance of an accused person in court is ensured by the issue of summons to the individual, which may be with a warrant of arrest or without one.

Summons

Summons are used by a court to compel the appearance of any person who has been accused of committing an offence. A summons is issuable on any day including on Sundays and public holidays. Summons are usually for less grievous offences. A summons must be in writing, in duplicate copy and contain the following details:

  • A concise statement of the complaint against the defendant
  • An order to the defendant to appear before the Magistrate at a certain time and place after 48 hours of the service of the summons
  • Signature of the Magistrate or Justice of peace.

A summons should normally be served personally by delivering it to the person named in the summons as reflected in Section 89 of the Criminal Procedure Act of Nigeria (CPA) LFN 2004. The person served with such a summon must sign the back of the duplicate copy to acknowledge receipt of the service of the summons. Section 95 of the CPA provides that where the person to be served refuses to acknowledge receipt, such a person may be arrested by the person serving the summons and detained in custody for a period not exceeding 14 days or as the court may think fit. Where personal service cannot be effected, substituted service may be effected with leave of the Court to fix the summons on a conspicuous part of the premises where the accused resides as provided in Section 90 CPA.

Arrest

The attendance of an accused person may be secured before a court of law by means of an arrest. An offender may be arrested with or without a warrant of arrest. A warrant of arrest is an authority in writing by a court to a police officer or any other person to arrest an offender. A warrant of arrest is applied for where the allegation is a serious one. A warrant of arrest is issued after receiving a written complaint on oath. The law creating an offence may also provide that an offender cannot be arrested without a warrant or that he cannot be arrested unless found committing the offence as provided for in Section 419 and 422 of the Nigierian Criminal Code (CC).

In practice, a warrant of arrest is usually issued by the courts when:

  • The statute creating the offence provides that the offender cannot be arrested without a warrant
  • When a serious offence is alleged to have been committed
  • When a summons issued has been disobeyed.

A warrant of arrest is issued on a complaint which must be on oath. It must be written and must bear the date of issue and other necessary particulars. The warrant must also be signed by the Judge or Magistrate issuing it and must also state the person to whom it is directed and the person to execute it.

A warrant remains in force until it is executed or cancelled by the Judge or Magistrate. Upon the execution of a warrant, the life span of the warrant expires. It cannot be used subsequently to arrest or re-arrest an offender. In R  v. Akinyanju (1959) WRNLR 253, a warrant of arrest was issued for the arrest of the accused. It was executed on him and he was duly arrested. Subsequently, he was discharged. However, he was rearrested using the same warrant of arrest. The court held that the subsequent execution of the warrant of arrest which had been earlier executed and had outlasted its duration, was illegal.

As is the case with summons, a warrant of arrest may be executed on any day of the week including Sundays and public holidays. However, it cannot be served in a court room while the court is sitting nor can it be served in a legislative house in session without the permission of the Speaker of the House – see Section 15, 18 of the Legislative Houses (Powers and Privileges) Act Cap L 12 2004.

The police officer serving the warrant of arrest must show the warrant to the offender except there are good reasons not to do so. For example if the person to be arrested might escape, resist arrest or be rescued from arrest – Section 28(3) CPA and Section 60 CPC.  Where the warrant is not readily available, its existence must be disclosed and shown to the offender as soon as practicable. The courts will usually use its discretion in deciding whether to issue summons or to issue a warrant of arrest.

Notwithstanding any irregularity, defect or error in the summons,  the warrant of arrest or the process initiating it or the execution of such process shall not invalidate the jurisdiction of the Magistrate or Judge to try the offender as was decided in Okotie V. Police (1959) 4 FSC 125

Arrest without warrant 

A person alleged to have committed an offence may also be arrested without a warrant. The following persons are empowered by law to arrest without a warrant of arrest.

  • The Police: Section 10, 11, 55 of the CPA , Sections 4, 24 of the Police Act and Section 26 of the CPC all empower a police officer to arrest a suspect without a warrant of arrest where there’s a reasonable belief that a suspect has committed an offence. In Chukwura V. COP(1964) NWLR 21, the courts stated that:

“The test as to what is reasonable belief that a suspect has committed an offence is objective. It is not what the police himself considered reasonable, but whether the facts within the knowledge of the policeman at the time of arrest disclosed circumstances from which it could be inferred that the appellant had committed an offence”.

In summary, there are two situations to be noted;

  1. Presence: Section 10(1)(b) CPA and Section 26(1)(a) of the CPC empowers the police to arrest without warrant any person who commits any offence in his presence notwithstanding that the law creating that offence prescribes that arrest for such an offence should be made with a warrant.
  2. Reasonable suspicion: Section 10(1)(a) of the CPA and Section 26 (1)(c) of the CPC empowers the police to arrest without a warrant any person whom he suspects upon reasonable grounds of having committed an indictable offence. The grounds for suspicion may be within his knowledge or may be facts stated to him by a third party.
  • Judicial officers: a Judge or Magistrate can arrest any person who commits an offence in his presence within the judicial division or magistrate district to which he is assigned; provided that such a Judge or Magistrate could have lawfully ordered the arrest of the person if the same facts were presented before him.
  • Private persons: a private person has the power to arrest where:
  1. A person in his view commits an indictable offence (any offence which attracts on conviction a term of imprisonment exceeding 2 years or a fine exceeding N400 – see Section 2(1) CPA
  2. If he reasonably suspects a person of committing a felony (an offence which is declared by law to be a felony, or is punishable without proof of previous conviction, with death or imprisonment for 3 years or more.
  3. If he reasonably suspects a person to have committed a misdemeanour by night (an offence which is declared by law to be a misdemeanour or punishable by imprisonment for a period exceeding 6 months but not exceeding more than 3 years.

It is very clear that the law seeks to establish laid down procedures for securing the attendance of accused persons in court. This is important because where no proper procedures are laid down for securing the attendance of accused persons in court, there is bound to be violation of the rights of suspected and accused persons. These procedures discussed above are crucially important and must be jealously guarded and enforced for as a matter of fact and law, the accused should be presumed innocent until proven guilty.

Sokombaa Ogun Alolade