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1. Introduction
The word ‘absentia’ is a Latin term meaning ‘absence’.1 Trial in absentia occurs when a defendant is tried in his/her absence.2 This practice developed from the need to ensure justice and remedy the plague of absconding defendants, a trend that frustrated the judicial process. However, the question of whether a criminal prosecution can validly proceed in the defendant's absence has remained one of the most contested issues in Nigerian criminal jurisprudence. This is because trial in absentia sits at the intersection of the right to a fair hearing and the state’s duty to ensure that justice is effectively carried out. While many argue that arraigning and trying a person in his absence is highly unjust and unconstitutional, others are of the view that striking out a criminal matter simply because a criminal is at large not only defeats the essence of the criminal justice system but also jeopardises the safety of other members of society.
Presently, the practice is lawful in a number of European countries, including France, Italy, the United Kingdom, and Spain. It is equally lawful in Pakistan, India, and in other sub-continental countries.3 Nigeria also recognises trial in absentia, but only under certain circumstances. Although the Administration of Criminal Justice Act (“the ACJA”) is a good advancement of the Nigerian legal system, the current provisions of the Act on trial in absentia are quite insufficient to meet the demands of the contemporary Nigerian society. The rate of defendants absconding has become increasingly significant.4 This is very concerning, and it highlights the need for all escape channels and routes open to absconding defendants to be closed through proactive legislative enactments and modifications.
Against this backdrop, this research carries out a detailed analysis of the concept of arraignment and trial in absentia, and the practice under the Nigerian criminal justice system. It also compares how the practice operates in selected jurisdictions and proposes necessary legal reforms to the Nigerian criminal justice system to align the practice in Nigeria with global trends.
2. Legal Framework for Arraignment and Trial in Absentia in Nigeria
2.1 The Constitution of the Federal Republic of Nigeria5
The Constitution of the Federal Republic of Nigeria is the supreme law from which every subsidiary Nigerian legislation derives its validity. Section 1(1) establishes its supremacy and binding nature over all authorities and persons throughout the federation. Section 1(3) further establishes that any other law which contradicts the provisions of the Constitution shall be rendered null and void to the extent of its inconsistency.
The Constitution mandates that a person arrested on suspicion of having committed a criminal offence be brought6 before a competent court to stand trial.7 Furthermore, such a person is required to be allowed to respond to the charge in a fair and just manner within a reasonable time in accordance with section 36(1) of the Constitution, which establishes the fact that every person has the right to a fair hearing within a reasonable time and by a court or tribunal constituted in such manner as to secure its independence and impartiality.
These provisions of the Constitution, which protect citizens’ right to fair hearing, occasioned a controversy on whether trial in absentia was consistent with the constitutional guarantees of a fair trial. Hence, in Adeoye v. State,8 the Supreme Court held that trying a defendant in their absence violated their constitutional and statutory right to fair hearing, rendering the entire trial a complete nullity. In other words, the presence of the defendant was said to be a mandatory requirement of the Constitution. How has this position changed since the enactment of the ACJA in 2015?
2.2 The Administration of Criminal Justice Act 2015
The ACJA was enacted to implement procedural reforms in the Nigerian criminal justice system. The purpose of the Act is to promote the efficient management of criminal justice institutions, ensure speedy dispensation of justice, protect society from crime, and further protect the rights of the suspect, defendant and victim.9
The general rule is that the defendant shall be physically present in every proceeding. Section 266 of the ACJA mandates a defendant to be present in court throughout the hearing of his or her matter. An exception to this is where the defendant behaves in a manner that makes physical presence undesirable.10 Where the defendant’s conduct constitutes an obstacle to the administration of justice, the court has the power to exclude the defendant from the proceeding and continue the proceeding in absentia. This is after the prior arraignment of the defendant because, under the Nigerian criminal justice system, there cannot be a trial or any proceeding whatsoever without an arraignment having first been conducted.11
Additionally, section 352 provides as follows:
Where the Court, in exercise of its discretion, has granted bail to the defendant and the defendant, in disregard for the court orders, 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.
This provision further shows that trial in absentia has now been institutionalised, albeit under stipulated conditions. By this provision, when the defendant has been arraigned before the court and granted bail, and he subsequently absconds from the proceedings without a just cause, then the trial may proceed without the defendant’s participation. This explains the use of the word “continue” by the law, signifying that the defendant had already been arraigned and trial had commenced. However, the necessary conditions must be met. Amongst other conditions, before the court may proceed with the trial of the defendant in absentia, the judge must be satisfied that the summons was duly served on the defendant and a bench warrant issued for his/her arrest.12 Where these conditions have not been met, the court is required to adjourn the hearing to a future date when the court will be certain that these conditions have been met.13
Another interesting provision of the ACJA is section 135. This section allows the magistrate in a criminal proceeding to dispense with the physical attendance of the defendant where the penalty for the alleged offence does not exceed ten thousand naira or imprisonment for a term of six months or both. Although this provision does not directly affect trial in absentia, it shows that the Nigerian criminal law does not demand physical presence as an absolute requirement in every criminal proceeding, regardless of the circumstances. It portrays the fact that justice can be done, even when the defendant is not physically present.
However, in every circumstance where trial in absentia is allowed in Nigeria, a drawback remains that it cannot take place unless the defendant has first been arraigned before the court. On this basis, criminal prosecution of absconding defendants have been cut short, and charges struck out by the courts because the defendants were never arraigned, thereby making a trial in their absence impossible.
3. Trial in Absentia in Selected Jurisdictions
3.1 Trial in Absentia under the European Union Legal Framework
The European Union Directive recognises the right to a fair trial in criminal proceedings by laying down certain rules and safeguards that must be complied with regarding the presumption of innocence and the right to be present.14 The Directive requires the defendant to be present at every point of the trial throughout the Union and, where his or her absence is unavoidable, the Directive allows the defendant to request a new date for the trial.15 Where the defendant is informed of the trial in due time and the consequences of non-attendance, but he refuses to appear, the guilt or innocence of the defendant may be validly handed down in his or her absence.16
A closer examination of the Directive reveals that Article 1(b) expressly guarantees the right of the defendant to be present at the trial in a criminal proceeding. However, this is not absolute. Article 8 of the Directive provides as follows;
“Member States may provide that a trial which can result in a decision on the guilt or innocence of a suspect or accused person can be held in his or her absence, provided that:
- the suspect or accused person has been informed, in due time, of the trial and of the consequences of non-appearance; or
- the suspect or accused person, having been informed of the trial, is represented by a mandated lawyer, who was appointed either by the suspect or accused person or by the State.”
The provisions of this section clearly show that under the EU Directive, an arraignment need not necessarily take place first before a defendant can be tried in absentia. The legislation makes no specific requirement of a formal arraignment, plea or reading an open charge in court, as is obtainable under the ACJA. This does not prejudice the defendant. Paragraph (a) states the major requirement of a notice of the trial and consequence of non-appearance given to the defendant in due time. Furthermore, where the defendant was not present at the trial, this Directive secures his right to request a new trial. Thus, a thorough analysis of Article 9 reveals that where the defendant is absent, and the conditions under Article 8(2) were not met, the defendant has a right to a new trial or any other legal remedy that allows fresh determination of the case and examination of evidence that may lead to the original decision being reversed.
The provisions of the aforementioned articles make it clear that the EU Directive secures the right of the defendant by ensuring that the defendant is informed of the trial and nonetheless deliberately chooses to waive the right to attend. Hence, once the requirements of the Directive are met, to wit: the defendant is informed of the trial and the consequences of not appearing, and he is being represented by a mandated lawyer appointed by him or the state, the trial may proceed in absentia without the requirement of an arraignment or its equivalent. If neither of the conditions is satisfied, the defendant may request a new trial.
3.2 Trial in Absentia under the Statute of the Special Tribunal for Lebanon
The United Nations, together with the Lebanese Republic, enacted the Statute of the Special Tribunal for Lebanon in 2007. This statute is one very important modern law permitting trials in absentia. The general principle under the statute is that the defendant shall be present and has the right to be tried physically and to defend either personally or through a legal practitioner.17 This statute further contains very clear provisions regulating trials in absentia. Article 22 provides that trial in absentia may be conducted where the defendant has expressly waived the right to be present,18 has not been handed to the tribunal by the relevant state authorities,19 or has absconded and all reasonable steps have been taken to inform the defendant of the charges.20 This implies that where the defendant absconds even before the trial commences, the defendant may be tried in absentia. There is no specific requirement for a formal arraignment.
Nonetheless, the statute safeguards the rights of the defendant by placing an obligation on the court to ensure that the defendant is notified and served with the indictment.21 The statute also requires the defendant to appoint a defence counsel,22 and where the defendant refuses or fails to do so, the Tribunal is charged with the obligation to do this on the defendant’s behalf.23 Upon conviction, the defendant may be re-tried before a special tribunal, unless he or she accepts the judgement.24
3.3 Trial in Absentia under the Italian Code of Criminal Procedure
Article 24 of the Italian Constitution guarantees the inviolability of the right of defence at every stage of a legal proceeding.25 In addition to this, a fair trial is further guaranteed under Article 111. The Italian Code of Criminal Procedure is the major law regulating trial in absentia in that country. It permits trial in absentia if it can be established that the defendant deliberately refused to appear in court. Article 419 of the Code provides that before the trial, the preliminary hearing judge shall serve notice of the trial on the defendant, together with the request for trial, and if the defendant fails to appear, the provisions of Articles 420-bis, 420-ter, 420-quater and 420-quinquies shall be applied.
Article 420-bis(1) provides that if the defendant has refused to appear, he is taken to have expressly waived his right, and the preliminary hearing judge may proceed in his absence. Also, where the court is satisfied that the defendant had actual notice of the trial and deliberately refused to attend, the Italian Code considers the defendant present, when represented by his lawyer.26 However, if the defendant appears before the delivery of the decision and shows sufficient proof of lack of unawareness/knowledge of the ongoing trial, the order to hold the trial in absentia shall be revoked.27
Where the absence of the defendant is due to force majeure, the court will adjourn and may order renewal of notice to be issued to the defendant.28 However, where the defendant did not know about the proceeding, Article 420-ter permits suspension of the proceeding, and the judge shall order notice to be served on the defendant personally.
From the diverse provisions of the Italian law, it is apparent that Italy does not require a formal arraignment of a defendant as is the case in Nigeria. Despite this, however, the law is careful not to allow the trial of an uninformed defendant in absentia. Thus, only if the defendant refuses to show up for the initial preliminary hearing and all conditions stated under the Code have been met, can the defendant be tried in absentia.
4. Recommendation for a Reformed Trial in Absentia System in Nigeria
In Nigeria, there have been numerous cases where people commit offences and abscond without a trace.29 The absence of the defendant then becomes a major issue that prevents the state from prosecuting the offence. As a matter of fact, this article was influenced by a similar situation in which the writers found themselves as counsel to nominal complainants in a reported case of fraud. The matter, pending at the Federal High Court, is now on the verge of being struck out after the court had adjourned severally for the arraignment of the Defendants, who are at large.
It is on the above basis that this article highlights the urgent need for a reform of the administration of criminal justice in Nigeria, particularly to permit trial in absentia without the need for an arraignment in deserving circumstances. Drawing from the provisions of Article 22 of the Statute of the Special Tribunal for Lebanon 2007 and other similar laws examined in this article, Nigeria may consider enacting clear and specific provisions that allow trial in absentia, with or without arraignment, where the defendant has absconded. This will help to address the issue of evasion of justice by absconding defendants and generally improve the effective administration of justice by Nigerian courts.
It is the view of the writers that this reform will not necessarily violate a defendant’s fundamental right to a fair hearing because the writers recommend that the reform be implemented by a comprehensive legal framework, modelled after international best practices and supported with strict safeguards, that carefully regulates trial in absentia without the hurdle of an arraignment while guaranteeing a defendant’s fundamental right to fair hearing. This will enhance public confidence in the Nigerian justice system and give some hope to victims of absconding defendants.
5. Conclusion
Nigeria currently does not recognise trial in absentia without prior arraignment. This is a major limitation to the effective administration of justice in Nigeria. An incident in Lagos State in which a defendant attempted to escape trial through the roof of a court’s restroom on the day of arraignment recently made the news.30 The legal significance of this transcends being a casual attempted escape. The defendant probably believed that escaping physical presence could result in an exoneration. However, in a system where trial and conviction in absentia are stringent, the advantages of absconding would have a diminishing effect when a defendant knows that trial may proceed with a possible conviction in absentia. The certainty that the defendant shall be required to serve out the assigned punishment upon a subsequent arrest, as recommended in this article would further diminish the incidence of absconding defendants. In such a situation, fleeing may not be the best option for a defendant who might choose to defend against the criminal charge in person rather than be tried and convicted in absentia.
Footnotes
1. Douglas Harper, ‘In Absentia’ Online Etymology Dictionary (https://www.etymonline.com/word/in%20absentia) accessed on 19 August 2026.
2. Attorney General of the Federation v Anuebunwa (2022) 14 NWLR (Pt 1850) 211.
3. Imran, ‘Trial in Absentia?’ (2023) Riphah Information Portal, (https://iportal.riphah.edu.pk/newspaper/trial-in-absentia/) accessed on 19 July 2026.
4. Ade Adesomoju, ‘N2bn fraud: Ndume remanded as Maina jumps bail, flees’ (Punch Newspaper, 24 November 2020) (https://punchng.com/n2bn-fraud-ndume-remanded-as-maina-jumps-bail-flees/) accessed on 22 July 2026.
5. 1999 (as amended).
6. This passes for and can be taken to mean an arraignment.
7. Ibid., s 35(1)(c) & (4).
8. (1999) 6 NWLR (Pt. 605) 74; (1999) 4 S.C. (Pt. II) 67 / (1999) 4 S.C.N.J. 136). See also, State v. Lawal (2013) 7 NWLR (Pt. 1354) 565 and Olarewaju v. State (2014) LPELR-23811 (SC).
9. ACJA, s 1(1).
10. ACJA, s 266(a).
11. Ibid., s 271 details the requirement for an arraignment before trial.
12. ACJA, s 352(1)(a).
13. ACJA, s 352(1)(b), ACJA.
14. Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings [2016] OJ L65/1, recital 9.
15. Ibid, recital 34.
16. Ibid, recital 36.
17. Statute of the Special Tribunal for Lebanon 2007, art 4(d).
18. Ibid., art 22(1)(a).
19. Ibid., art 22(1)(b).
20. Ibid., art 22(1)(c).
21. Ibid., art 22(2)(a).
22. Ibid., art 22(2)(b).
23. Ibid., art 22(2)(c).
24. Ibid., art 22(3).
25. Constitution of the Italian Republic 1947.
26. Ibid., art 420-bis(3).
27. Ibid., art 420-bis(4).
28. Ibid., art 420-ter.
31. Naomi Chima, ‘Cashier absconds with employer’s N1.8m in Lagos’ (Punch Newspaper,16 May 2023) (https://punchng.com/cashier-absconds-with-employers-n1-8m-in-lagos/) accessed on 28 July 2026.
32. All Facts Newspaper, ‘Drama in Lagos Court as a Defendant Attempted to Escape on the Day of his Arraignment after Requesting to use the Restroom’ (All Facts Newspaper, 10 June 2026) (https://web.facebook.com/allfactsnewsng/videos/drama-in-lagos-court-as-a-defendant-attempted-to-escape-on-the-day-of-his-arraig/864952879995746/) accessed on 22 July 2026.
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