AN APPRAISAL OF THE SCOPE OF A CITIZEN’S RIGHTS TO FAIR HEARING

AN APPRAISAL OF THE SCOPE OF A CITIZEN’S RIGHTS TO FAIR HEARING

INTRODUCTION

A right is an ability to modify a state of affairs in relations to the persons having correlative duties to the advantage of the holder of the right. The existence of a legal right therefore implies an existence of a correlative duty on other persons to obey or not to derogate from the rights vested in the holder. Note also that a legal right must have its existence guaranteed and recognized by law and its exercise must be based on the acceptability by law of the consequences.

The right to fair hearing is the bedrock for security justice where an aggrieved party is denied the right to be heard by an unbiased court or tribunal, there is every likelihood of there being denial of justice. This right has gathered a lot of moss over the years thus elevating it to the status of being the most litigated fundamental right.

Depending on how it is approached the right to fair hearing may mean so many things in the eye law to wit presumption of innocence of an accused person; right to counsel of one choice, right to informed timeously of the charge or allegation against ones expeditions trial by an unbiased court or tribunal, right against double jeopardy, the rule against interest and bias, right to be prosecuted under an existing  law (i.e. nullion crimes sine lege – crime except in accordance with the law) and so forth.

In Nigeria among others countries, fair hearing has been embodied as a requirement of natural justice in chapter four of 1999 federal republic of Nigeria constitution. The concept of natural justice has been said to be rooted in the philosophy of natural law which in itself connotes the inherent right of man to that which it fair and just natural justice as we know today is summed up by twin Latin maxims of NEMO JUDEX IN CAUSE SUA (one should not be a judge in his own cause) and AUDI ALTERAM PARTEM (he who decides a case must hear both sides).

The early proponents and adherents to concept of natural justice found justification as it is in biblical story of that first trial recorded in the book of Genesis, chapter 3:8-13[1]. Thus, in R.V CHANCELLOR OF CAMBRIDGE UNIVERSITY, DR. BENILLY FORT, J, in considering the case of the applicant who had been deprived of his degree by the respondent unheard noted that even God did not condemned Adam in the Garden of Eden after he had eaten the forbidden fruit until he heard Adam’s side of the story.

The above authority represents the judicial genesis of the AUDI ALTERAM PARTEM rule which presupposes that in contentious matters, parties must be given the opportunity of stating their case before they are condemned or pronounced guilty. The maxim has grown over the years and has now covered the issues of notice, time adjournment, legal representation, opportunity to see and cross-examine witnesses etc.

The writer of this long essay believes that the right to fair hearing has been constantly abused by both past and present government in Nigeria.

It is intended to look critically at the right to fair hearing under the 1999 constitution of the Federal Republic of Nigeria and its application in criminal procedures.

This essay is not intended to be a condemnation of section 35, and section 36 of the constitution rather it is hoped that it would be helpful for a possible reform of the constitution and towards that the provision in its present form is abused; the accused person whom it seeks to project is far from seeing that light of protection.

CHAPTER ONE

FAIR HEARING AS A NATURAL RIGHT

Natural rights by their origin are Universal rights, that is, it is the right of everyman anywhere on the globe to enjoy, “because of the fact that in contradiction with other beings, he is rational and moral” other species of natural rights include the right to life, right to personal liberty, right to freedom of expression, right to freedom of movement, right to dignity of human person, to mention a few.

In the development of these rights, the theory of natural law played a predominant role and it is on record that the formulation of the theory of natural law was first embarked upon by the stoics after the demise of the Greek city states and they based this theory on eternal reasoning, justice, universality and immutability.

Socrates, Plato and later, Aristotle had different views about natural law (natural right), it was easily deducible from their teaching, belief and doctrine that they conceived the idea of justice as a form of law decreased by nature to which man-made laws were subordinate and must as of necessity comply with.[2]

Natural law which can be called Natural Justice is derived from Roman concept Jus-Naturae, which means the principles of natural law, natural justice or good conscience. The question here which I shall be answering is how this relates to the answering on fair-hearing.

In the case of COPPER WORDSWORTH v. BOARDS OF WORDS, the learned Judge said that “Even God did not pass sentence upon Adam before he was called to make a defence; Adam where are thou, has thou not eaten of the tree thereof I commanded thee that thou shouldn’t eat?”[3]

This means that even God right from creation know that people shouldn’t be judged without hearing from them or given them fair hearing. God has the omnipotent power to say whatever He likes and does whatsoever he likes with them because He is their creator but He did it fit to have fair trial before condemning them. In this case, Adam blamed it on Eve and God used His own wisdom and fair assessment of his answer to judge him by condemning Adam and Eve.

As specie of natural right, the right to fair hearing or to common law rule of natural justice is embedded in a twin rule, viz: the right to be heard which is expressed in the Latin maxim – (Audi Alteram Partem) and the right to have ones dispute determined by the impartial judge is also based on the Latin maxim – (Nemo Judex In Causa Sua). At this juncture, these principles should be considered one after the other.

AUDI ALTERAM PARTEM: This has been variously defined as the right to be heard on “no man should be condemned unheard”[4]^.

Commenting on the implication and meaning of the right, Lord Denning has this to say;[5]

“If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him and then he must be given a fair opportunity to correct and contradict them.”

This appears in all the cases from the celebrated judgement of Lord Coveburn, L.C. in BOARD OF EDUCATION v. RICE down to the decision of their Lordship Board in CEYLON UNIVERSITY v. FERNANDO. It follows, of course, that the judge or whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of the other. The court will not inquire into whether the evidence or representations did work to his prejudice or not. Sufficient that they might do so, the court will not go into the likelihood of prejudice. The risk of it is enough. No one who has lost a case will believe he has been fairly treated if the other side has had access to the judge without his knowing”.

As already pointed out, the right to be heard is of universal application and the right has been upheld in many Nigerian cases.

In ADEDEJI v. POLICE SERVICE COMMISSION[6] for instance where the appellant a police officer was dismissed by the Commission for receiving a bribe, a written allegation was sent to him to which he replied. It was however at the hearing of an application for an order of certiorari to quash the order of the Police service Commission that the appellant for the first time got to know of the evidence relied on by the Commission in making the order of dismissal.

The court held that although a tribunal is entitled to decide its own procedure, it must however conform to the rules of natural justice. That failure to get the appellant acquainted fully with all the evidence relied upon by the commission was fatal to the commission’s case[7].

It should be noted also that the right to be heard entails that the parties be notified of the time and place of the hearing and that adequate opportunity is given to the parties to prepare their cases. The American enactment of the control order regime for the prevention of TerrorismAct2005, which is still in force imposes some strict restrictions as house arrest, on anyone suspected of involvement in terrorism actions. The secretary of state is empowered to make a decision as whether,

We should now consider the other arm of the principle of natural justice in so far as it relates to fair hearing.

NEMO JUDEX IN CAUSA SUA: Interpreted, the rule means a man should not be a judge in his own cases or the natural justice rule against bias. The rule against bias means that a person interested in a matter should not adjudicate or take part in the adjudication of such matter in which he is interested.

It should be noted that ‘interest’ here has a wide connotation and it is stringently constructed. The ‘interest’ may be professional, proprietary or personal.

The test often applied by the courts in deciding whether a person is interested in a matter or not is whether a person’s interest in the case or his relationship with one of the parties is such as is capable of creating a real likelihood of bias. If the situation is such that bias is very likely to result, the person should not hear and determine the case.[8]

            Thus in LEGAL PRACTITIONER DISCIPLINARY COMMITTEE v. GANI FAWEHINMI,[9] where the applicant, a legal practitioner and author was summoned to appear before the committee on allegations of advertising in the magazine, ‘WEST AFRICA’, he went to court to seek injunction on the ground that the Attorney-General was both the complainant and prosecutor; therefore it raised a real likelihood of bias.

The Supreme Court held that the committee which is expected to act judicially must observe the rules of natural justice and must not place itself in a position in which it may appear that there is real likelihood of bias.

CHAPTER TWO

A CITIZEN’S RIGHT TO FAIR HEARING CONSTITUTIONALLY

The right to fair hearing is fundamental to the rule of law and to democracy itself. This right applies to both criminal and civil cases and is absolute and cannot be limited. It requires a fair hearing within a reasonable time by an independent and impartial court or tribunal established by law.

The right to a fair hearing, which applies to any criminal charge as well as the determination of civil rights and obligations as intrenched in the 1999 constitution of the Federal Republic of Nigeria include the following;

1.      There must be real and effective access to a court (although there are limited                                          exceptions in the case of vexation litigants, minors, prisoners etc.)[10]

2.       There must be a hearing before an independent and impartial court or tribunal established by law.

3.      The hearing must be held within a reasonable time[11]. What is reasonable depends on the complexity of case, It’s importance, the behaviour of both the applicant and competent authorities, and the length of time between the conduct in question.

4.      The applicant must have a real opportunity to present his or her case or challenge the case against them. This will require access to an opponent’s submissions, procedural equality and generally requires access to evidence relied on by the other party and an oral hearing[12].

5.       The court of tribunal must give reasons for its judgement.

6.      There must be equality of arms between the parties, so, for example, the defence has the same right to examine witness against them as the prosecution has and both parties have the right to legal representation etc.

7.      In criminal cases, there is a right to silence and a privilege against self-incrimination (although it may be possible to draw adverse inferences from suspects remaining silent).

8.      An accused person must have the right to effective participation in their criminal trial. Except for strictly limited exceptions, an accused is entitled to be physically present at his or her hearing to give evidence in person and be legally represented.

9.      The hearing and judgment must be made public. Hearings can, however, be held in private where: 

In TORRI v. NATIONAL PARK SERVICE OF NIGERIA ³ the right to fair hearing is described as an extreme fundamental right in the constitution and the breach thereof has its implication on the proceedings. Every person charged with a criminal offence is entitled to be heard. This right is inalienable and an indispensable requirement of any judicial decision. However, fair hearing is not some kind of abstract principle.

            Fundamental Human Rights probably found its way into the constitution of some countries through the Magna Carta, 1215 AD which was written as a result of the revolution by barons and peasants in England against the Kings on the grounds that their powers were being abused. Before the Magna Carta there was no procedure rules for the trial of accused persons therefore they have no protection. Consequently, this brought about a written guarantee signed by the king of the day which required that proceeding of any adjudication should be in accordance with the “law of the land” that is according to the principles of natural justice. This requirement became popular and gained so much strength that is now an essential element of any civilized legal system. That is why in Nigeria today, traditional rulers with their council of chiefs are been looked upon by their subjects in adjucating on matters relating to their communities with a view to given them fair hearing or fair trial that every one that comes before them must comply and feel satisfy that justice is actually done. In Yoruba land, the Oba-in-Council is the head while in Igbo land, the Obi-in-Council is the head and in the North, the Emirs-in-Council is the head.

The constitution of the United State of America in Amendment XIV (1868) provides Inter alia that no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty or property without due process of law. The “due process of law” clause includes the right to fair hearing as a denial could lead to a loss of a person’s life, liberty or property.

The British constitution which is unwritten is backed by International statutes and the pronouncements of the courts which are bound to follow the natural justice doctrine. For instance, the European Convention on human Rights which was drafted under the auspices of the council of Europe (an international organization composed of 21 West European state) formed in 1949 as the result of the first post war attempt at unifying Europe has in its Articles 5-7 provision which are similar to our Section 33 of the constitution of the Federal Republic of Nigeria.

In the Nigerian case where the right to fair hearing is provided for in Section 35 and Session 36, the provision is meant as protection for the minorities. Natural justice compliments the constitutional provision. It is important to point out here however that the provisions of section 35 has not abrogated the common law rule as a litigant may still choose to protect his right either under the common law or under the constitution.[13]

By virtue of Section 35 of the 1999 constitution, a litigant can seek redress in the High Court of any state which has original jurisdiction. One may ask the question why the constitutional protections of the fundamental Human Right since such rights are hitherto protected at common law. The reason for this is not far-fetched while a common law right is not justiciable against the legislature, a constitutionally protected right is justiciable against any arms of government.[14]

Of importance to criminal law and criminal procedure vis-a-vis the right to fair hearing are the provisions of section 35 (4) – (7) of the 1999 Federal Republic of Nigeria Constitution. The section which deals with the right to fair hearing will now be examined.

DOCTRINE OF NATURAL JUSTICE

Sub-Section 2:

This proviso makes provision for the person whose rights and obligations may be affected to make representations to the administering authority before such authority can make its decision and also such decision shall not be conclusive and trial otherwise such law giving power to that authority shall be invalid[15].

In Nigeria, this has been applied in a number of cases; see for instance an early case; GURI & ANOTHER v. HADEJIA NATIVE AUTHORITY[16] where the appellants were charged and convicted for highway robbery (‘HIRABA’, Maliki law name for trying robbers). The applicants appealed against this conviction on the grounds that under the Maliki law which tried them. Also in the case of DENLOYE v. MEDICAL & DENTAL PRECTITIONERS DISCIPLINARY COMMITTEE[17] where the appellant was charged with neglecting a patient who was seriously ill, the appellant was denied a right to be present at the hearing and did not make available the evidence taken against him in his absence to him or his counsel. The court set aside the decision of the panel on the grounds that the procedure adopted was unknown to law.

In an old English case, Dr Bonham’s case[18] where a medical doctor was fined by the board of the college of Physicians because he had failed to take out a licence to practise from the college. It was held that the board cannot have such power on the grounds that it would amount to the Boards being a judge in its own cause, besides the Board has proprietary interest in the matter.

Also in the case of DIMES v. GRAND JUNCTION CANAL CO[19] the decision of the Lord Chancellor, Lord Cottenham was set aside on the grounds that he was a substantial shareholder in a company which was one of the parties before the court.

In Nigeria, the maxim was invoked in the case of DR ALAKIJA v. MEDICAL DISCIPLINARY COMMITTEE[20]; the appellant who was a medical practitioner contended that the committee did not conduct the enquiry in accordance with the principles of natural justice in that the Registrar who was in fact the prosecutor took part in the deliberations of the committee. The Supreme Court held that the Registrar was not by name or by designation a member of the committee and should not have remained during the deliberations of the committee.

The essence of this provisions is to discourage a likelihood of bias[21] and it has been aptly concluded at page 259 of the decision of the Supreme court in Dr Alakija’s case where the judge said:

“…………….. but his mere presence at the deliberations offends against the principle to frequently enunciated in recent cases in which a clerk a pelty sessions has retired as a matter if course with members of the Bench when they are considering their verdict, that justice must not only be done but must be manifestly seen to be done.”

Subsection 2(b) which disallows decisions of such court or authorized body to be final and conclusive makes allowance for an aggrieved party to fell tree to appeal if not satisfied with the decision, it also given the courts power to examine the decisions of the determining body.

In the case of tribunals, the proviso seem to have seen thrown over board by the introduction of Decree 2, State Security Deviation of Personnel Decree 1984, which states that “No suit or other legal proceedings shall be against any person for anything done or intended to be done in pursuance of the decree”[22].

This proviso Bars any judicial review of administrative or executive action.

Decree No. 13, Section 1(2) 1984, goes on to say that any such pursuance against the above mentioned decree whether instituted before or after the decree was passed a nullity thereby making the decisions of the various decrees final and conclusive.

VENUE OF PROCEEDING AND TIME WITHIN WHICH AN ACCUSED MUST BE HEARD

Section 36 Sub-sections 3 and 4 stipulate that the proceedings of a court or a tribunal relating to a civil or criminal offence shall be in public as well as the announcement of its decisions. These subsections are to ensure that justice is not only done but must be manifestly seen to have been done.

            The courts have discretion to hold some proceedings in private in the interest of defence public safety, public morality and public order and for the welfare of persons below 18 years.

            Second part of subsection 36 (4b) a Minister or Commissioner may move that some matters should be heard or viewed privately because it is inimical to public interest. However in such a case, such ministers or commissioner must satisfy the court that a public disclosure would be harmful to the public.

In the case of HAMEED APAMPA V. BALOGUN[23] the learned judge held that action 219 of the Evidence Act must be read together with this Section 22 of the 1963 constitution (now Section 36 of the 1999 constitution).

The new situation here is that the new constitution, that is Section 36 (4) (b) of the 1999 constitution now improved the former provision, the word ‘certify’ has been changed to ‘satisfy’. By this new position, the courts have the power to determine whether the piece of evidence in inimical to public interest or not. It should be noted, however that the world ‘Public’ does not include the legal practitioners representing the parties as to exclude the counsels would be denying the accused of his right to legal representation and such a hearing cannot be said to have been fair. However in subsection 4, it goes on further to say that except the criminal charge is withdrawn, such a hearing apart from being is public must be heard within a reasonable time.

The question one must ask here is ‘What is a reasonable time?’ This is now defined in Section 35 (5) (a-b) as a period of one (1) day where there is a court of competent jurisdiction within a radius of 40 kilometres and a period of two (2) days or longer in any other case as the court sees reasonable.

However, an accused that is detained or arrested within trial should not be kept longer than ‘a periods of 2 months from the date of his arrest or detention in the case of person in custody or is not entitled to ball and 3 months from the date of his arrest or detention in the case of a person who has been released on bail’[24] and such release must be unconditional or upon such condition as would him appear for trial at a later date.

From the situation in our prisons, it is observed that this proviso has been constantly flayed in view of many cases of delayed justice, most detainees are still to see the inside of a court. According to a paper delivered by Justice Obaseki of the Supreme Court he affirmed that in December 1985, Ikoyi Prison had 1,499 unconvict inmates while in June 1987, it had 1,965 unconvict inmates.[25]

The attitude of the courts can be seen in the case of IYERE v. DURU [26] which went up to the supreme Court, Obaseki, J.S.C noted that while the court appreciates that a police officer may detain an accused, such act must take into cognisance the provision of section 35 and 26 of the 1979 constitution (now section 35 (4) (5) of the 1999 constitution).

It is my opinion that despite the court’s attitude, the police still go ahead in helping to delay justice to the detriment of the accused, ignoring the fact that it is unconstitutional.

PRESUMPTION OF INNOCENCE

Subsection 5:

 The onus of proving the guilt of the accused is on the prosecution, however following the common law system of justice, the accused is not obliged to prove his innocence; he may just plead not guilty and refuse thereafter to give any evidence in his own defence as was stated in ORIOKE ACHONU v. COMMISIONER OF POLICE[27] The rule of law in criminal cases is that the onus on the prosecution is to prove its case beyond reasonable doubt. It does not shift.

The prisoner also has a right to remain silent in the dock as the criminal may be acquitted if there is a case of self-incrimination.

A case of IBEZEAKO v. COMMISIONER OF POLICE,[28] where the appellant was convicted by the Acting Chief Magistrate of the Jos Magisterial District on a charge of offering gratification to a public servant. The main issue on appeal was that where the Magistrate had framed the charge, the presumption of innocence has been infringed contrary to section 21(4) of the 1999 constitution,

The Supreme Court held per Ademola C.J.F. that the framing of charge under section 160 and section 161 of the code does not mean that the Magistrate has made up his mind that the accused was guilty rather, if he was mere formulating what seems to him to be the appropriate charge for the offence which appears to have been committed. The appeal was dismissed on the grounds that section 21(4) [now section 35 (4) (5)] of the constitution was not infringed.

This provision has been criticised and some writer are of the opinion that the provision tilted more to the side of the accused, which might be detrimental in the interest of ‘justice’ as justice might not been seen to have been done on both sides, that is, the victim and the public. It is my contention that the provision remain as it is so that the victim can be protected to a reasonable extent and the principle that “he who asserts must prove” be upheld.

Another safeguard for fair trial is that of Section 36, Subsection 6 of the 1999 constitution.

RIGHT OF THE ACCUSED

This subsection deals exclusively with the right of the accused and it has several provisos

RIGHT TO BE INFORMED PROMPTLY:

‘Every person who is charged with a criminal offence shall be informed promptly in the language that he understands and in detail the nature of the offence’[29]. Although this requirement of law concerns the first stage at which time an accused is charged, it is also a reinforcement of section 215 of the Criminal Procedure Act in order to guarantee fair hearing and trial of the accused; this was provided for in TIMOTHY v. F.R.N[30]. Every accused person arraigned before the court in criminal trial must understand the nature of the charge brought against him. The charge must be read out to the accused in the language that he understands before the plea is taken. This requirement is mandatory and the failure of a trial judge to comply with the provision of Section 36 (6) (a) of the 1999 constitution will render the trial a nullity[31].

Where the accused understand the language of the court, which is English, it becomes unnecessary to record that fact, it is only where the accused obviously does not understand the language of the court that the law places a burden on the court to put on record a language spoken by the accused and the fact that the charge was read over and explained to him in that language is however good practice to ask the accused the question whether he understood the charge/nature as read and explained and record his answer.                                                                                                                                                                                                                                         

In BAYO v. FRN[32] the court emphasized the fact that, it is entitled to be informed promptly of anything said by the accused person in a language which the court does not understand. The onus is upon the prosecution to prove a charge against an accused person and that onus is one beyond reasonable doubt[33].

The accused must have opportunity to plea to the charge against him. Thus a charge is a document containing the statement and particulars of offence(s) with which a person is accused and tried before a court of law. The rule postulates that a charge must be clear enough as to give the accused person adequate notice of the offence with which he is charged. A charge that is bad for duplicity does not necessarily invalidate the charge or to trial except it has occasioned a miscarriage of justice.[34]

The criminal justice system in Nigeria requires that the contents of a charge should not be subject of speculation and inference, rather the essential ingredient of the offence must be disclosed in the charge. A charge must be provided for by status where a charge has been framed in accordance with the format of the relevant law, explaining the offence alleged to have been committed and spelling out the elements of that offence in good, lucid, precise, specific and readily understandable language, it is regarded as substantially proper and valid in TIMOTHY v. FRN.[35] In OKIKE v. IPDC[36] it was held that an accused person cannot be allowed to approbate and reprobate at the same time.

RIGHT TO LEGAL REPRESENTATION

The second and third proviso ensure that the accused person is given adequate time and facilities for the preparation of his defence and to defend himself either in person or by legal practitioners of his own choice.

The Criminal Procedure Act provides in section 352 for the court to assign lawyer for the accused to defend where he cannot afford one.

The issue of legal representation came up in the popular case of AWOLOWO v. FEDERAL MINISTER OF INTERNAL AFFAIRS[37]. Here the accused was charged along with others with reasonable felony. The plaintiff purported to bring in a British counsel from England. The counsel was refused entry by virtue of the discretionary power of the minister for Internal Affairs.

This particular case had generated some arguments as some writer feel that it was a political bias rather than discretionary powers at play while others think it is in line with the powers of the Minister. Udo-Udoma, J, held that the provisions of section 21(5) (c) which is similar to section 36(6) (c) has not been breached and that section 13 of the immigration Act which the Minister relied on is not inconsistent with the provision.

It is my humble submission that since the provision merely said “of his own choice” which made it open to bring a lawyer from anywhere in the country, such a practitioner must in my own view be one entitled to practice in Nigeria by virtue of the fact that he had been called to the Nigerian Bar but must satisfy the Minster of Internal Affairs who has discretionary powers to allow or disallow him entry into the country.

Also in BELLO v. STATE³⁹ where the accused was charged with Armed Robbery was not represented by a legal practitioner to defend him. The court of first instance made effort to set the Legal Aid Council to assign one to which they replied that they had no jurisdiction over such offence. No further effort was made and the appellant was found guilty and sentenced to death.

The Supreme Court held that this amounted to a breach of his right under section 33 of the 1999 constitution; in view of this the accused was discharged and acquitted.

A learned judge later opined that the fact that the offence fell outside the jurisdiction of the Legal aid council did not absolve the court of its responsibility⁴⁰. this happened inter on in ABODUNDU v. STATE which followed the decision in BELLO v. STATE see also GARBA ADAMU v. ATT. GEN OF BENDEL STATE[38] and STATE v. GWONTO[39] where refusal by the court to grant accused’s request of having the assistance of his lawyer was held amounting to a denial of his right to fair hearing.

RIGHT TO BE GIVEN ADEQUATE TIME AND FACILITIES FOR THE PREPARATION OF HIS DEFENCE:[40]

The accused must be given adequate time and facilities to prepare his defence. In this area, the court should grant adjournment to the accused person either to obtain service of a counsel where necessary or call a witness that will be material to his case. In UGWU v. THE STATE it was said that the opportunity to defend an allegation is a cardinal rule of fair hearing and an accused charged with an offence has the right to present his defence. Therefore an accused person is entitled to cross-examine the prosecution witnesses and call witnesses to give evidence for the defence.

Every accused person has a constitutional right under section 36(6) (b) of the constitution to be supplied with the extra-judicial written statements of the prosecution witnesses before the trial. In criminal trials at the High Court the prosecution will always file proofs of evidence which include the written statements made by the prosecution witnesses to the police. On the other hand, the written statements of the prosecution witnesses are not supplied as a matter of course in magistrate courts and defence counsel will have to request for their production. The practice of supplying proofs of evidence in the high court has constitutional authority and the failure to produce the extra-judicial written statements of the witnesses violated the provision of section 36(6) (b) of the 1999 constitution.

In UDO v. THE STATE the Supreme Court held that a trial judge must grant adjournment in a murder charge once the defence counsel is absent at the hearing for the right of the accused person to fair hearing is not only statutory but constitutional. Where a witness is absent and an adjournment is sought, it has been held that the accused should normally satisfy that: (a) the witness is material to his case (b) he, the defendant has not been guilty of neglect in procuring the witness to attend and; (c) there is a reasonable expectation that can procure his attendant for a certain date.

It is the fundamental of fair hearing that the accused person must be given adequate time and facility to be represented by a counsel of his choice. This was the case in OGOLI v. A.G. FEDERAL REPUBLIC OF NIGERIA the accused counsel were absent and the tribunal adjourned on two occasions for hearing. The court ordered that hearing notice be served on the counsel. The counsel still did not appear on the adjourned date. The ground for the absence was that they were not served with the hearing notice. The tribunal continued with proceeding even though it was informed that the defence counsel had not been served with the hearing notice on allegation that the accused was not given a fair hearing based on rule on rule Audi Alteram Partem. The Supreme Court said, under Section 36(6) (b-c) of the constitution.

Every person charged with a criminal offence is entitled not only to be given adequate time and facility for the preparation of his offence, but he is also entitled to defend himself in person or by a legal practitioner of his choice, and the case in which he has been given such an opportunity but the legal practitioner has himself failed to discharge his duty to his client. I am satisfied that they were not given adequate opportunity to be represented by a legal practitioner.

RIGHT TO AN INTERPRETER:

That every person charged with a criminal offence shall be entitled to be informed promptly in the language he understands in detail of the nature of the offence. This seems to be a good development in the constitution as it appreciates the fact that less than a half of the population of Nigeria is literate and there are over 200 ethnic groups in the country. It would not be a fair trial where the accused cannot comprehend the goings-on of his own trial.

In the case of BURAIMA AJAYI & ANOR. v. ZAIRA NATIVE AUTHORITY[41] where the accused were Yoruba speakers and the trial proceeding was in Hausa, they contended that the interpretation of the language was a summary of what the appellants said, beside the interpreter was not sworn.

The Supreme Court held that there was a failure of justice and that it fell abort of the requirement that ‘not only that justice be done, but that it may be seen to be done’. Also in the case of QUEEN v. EGUABOR where the proceeding was in English which the appellants did not understand, the court held that since it was not clear whether evidence of the witness was interpreted to the appellants a retrial should take place.

However, the last proviso says that the assistance of an interpreter should be without payment. The good thing about this proviso is that it seeks to protect the accused and ensure fair trial though the question of who pays the interpreter is not judiciary such a provision seem to encounter problem more often, to the detriment of the accused person.

RECORDS OF PROCEEDINGS

Sub-Section 7:

This subsection allows the court to keep records of the proceedings and the accused person or persons authorised by him to obtain copies of judgement within 7 days of the conclusion of the case. The proviso in itself sounds alright but the constant problem encountered by our court has always been lack of funds, poor recording facilities and insufficiency of personnel that the 7 days limit is a dream.

Another fault in this proviso is that the constitution is silent over whether the copies of judgement is free and if not who pays for them. Incidentally, the Criminal Procedure Act is also silent on this issue. The essence of this provision is to enable the accused to study the judgement for a possible appeal where there is a mistake of fact or of law and he cannot obtain such copies within the time stipulated, his right of appeal seems dashed.

PRINCIPLE OF LEGALITY OR RULE AGAINST RETROACTIVE LAWS

Sub-Section 8 and 12

There are provisions against retroactive laws as well as against a penalty higher than that in force at the time the offence was committed. This brings to mind some of the obnoxious decrees promulgated in 1984 which were clearly retroactive laws. Such decrees are for instance decree 20; special Tribunal (Miscellaneous Offences) 1984, which made dealing; buying or selling of the drug called cocaine or other similar drugs an offence punishable by death. ⁴⁶

The first three convicts of the offence were victim of a retroactive law as there was no such offence when they were arrested for alleged committing the act. The then regime of Buhari/Idiagbon approved the sentence and they were executed by firing squad despite the hues and ores of concerned citizens.

Another of such decree is Decree 7, Exchange control (Anti-Sabotage) decree 1984[42]. The issue in both decrees is that a person cannot be said to be criminally liable for an offence which did not exist at the time of commission as there is the absence of Mens Reas and Autus Reas. For a man to be convicted for a crime, there must be a proscribed act allowed by a prescribed state of mind and since these were absent at the time, such a conviction was unconstitutional and should be disallowed.

A written law could be an Act of the National Assembly or a law of a state or instrument under the provision of a law. This is the provision in subsection 12 and by virtue of these cases whereby tends to make laws would not be written a law at that material time.

In the English case of SHAW v. D.P.P,[43] where the appellant was convicted for publishing a magazine called “THE LADY’S DIRECTORY” which contained the names, addressed and telephone numbers of prostitute and some activities. The House of Lords held that they are the custodians of morals and have the duty to supervise the offences contrary to public morals most essentially when the legislature leaves gaps in certain laws.

This is an attempt by the court to make laws which is contrary to constitutional provisions, hence in Nigeria such an attempt would not hold since the constitution only provides that only an Act of the National Assembly or a law of a state would be regarded as a written law. It is important to note here that in a military system, the laws of the Armed Forces Ruling Council is equivalent to the rules of the National Assembly as they are both executive arms of the government.

However items which are both under the ambit of the Exclusive Legislative and concurrent legislative list would have laws made on them null and void as to their inconsistencies with the laws made regarding any item on the exclusive legislative list.

RULE AGAINST DOUBLE JEOPARDY

Sub-Section 9 and 10 are the provision of the rule against double jeopardy. Sub-section 9 provides that “No person who shows that he has been tried by any court of competent jurisdiction for a criminal offence and either convicted or acquitted shall again be tried for that offence or for criminal offences having the same ingredients as that offence save upon the order of a superior court”.

A single act may be contrary to many different laws and as such constitute many offences the prosecution of each offence is however not double jeopardy, the rule is only against double prosecution of the same offences and by the same government.

The issue of double jeopardy came up in the case of STATE v. NAFIU RABIU⁴⁹ where it was argued at the Supreme Court whether the plea of double jeopardy was available to a person acquitted by a court of first instance. It was held that the 1999 constitution gave a general right of appeal that is as of right on law and facts.

However, an accused who has been previously acquitted or convicted for the same offence can plead “Autrefois Convict” as the case may be and this here any subsequent trial in relation to the same offence.[44] For the plea to succeed the test is whether the conviction or acquitted was by a court of competent jurisdiction. This was examined in the case of R. v. JINADU[45].

Secondly, whether the previous trial and the subsequent one are for the same offence or whether the two offences have identical ingredients.

In the American case of ASHE v. SWENSON[46] where an accused had been charged with participating with others to rob, chief Burgess dissenting held “what the court is holding is in effect, that the second, third and fourth criminal acts are free unless the accused is tries for the multiple crimes with single trial” [47]. Also in the Nigerian case of EDU v. C.O.P. [48] where the plea of Autrebois Acquit failed, the court of Appeal held that since the previous acquittal was for stealing a postal packet and the subsequent trial was for neglecting losing the same postal packet, the ingredients of the two offences were not identical.

It is important to note that it is not double jeopardy where there are civil and criminal proceedings against the same person for the same offence, but a higher court may order a re-trial which is an entirely new trial, that is a ‘De-Novo’ trial which may also be in a course of appeal. Such a re-trial however must not award a punishment greater than the one already awarded.

An accused that shows that he has been pardoned for a criminal offence shall not be tried again for that offence. This is the proviso in sub-section 10 and also supports the previous sub-section.

By virtue of Section 73 and 75 of the Criminal Procedure Act, the Attorney-General of the Federation or state may enter a Rolle Prosequi at any stage  of the proceedings either by stating in court or informing the court in writing and there upon the accused shall at once be discharged in that respect. This will not ground a plea of Autrefoi acquit at any rate.

COMPELLABILITY OF THE ACCUSED

Sub-section 11:

“No person who is tried for a criminal offence shall be compelled to give evidence at the trial”. The evidence act makes statutory provision in Section 236(1). The provision gives the accused person the right either to keep quiet or give evidence and a right to cross examine his witnesses depending on his position in court but he cannot be compelled to give evidence on his own behalf.

In my view, this provision may lead to unfair trial of an accused especially where he does not know that such rights exist.

The accused must be made to know that in the process of giving evidence, he does not do so under threat, intimidation or duress as this would vitiate consent.

In the Western countries for instance, and the United States of America, the practice is that it is permissible for the accused through his counsel to admit the existence of certain facts.

It is my humble suggestion that such a provision may be incorporated here since the accused should be guided by his counsel and as such would not incriminate himself.

CHAPTER THREE

THE ACCUSED PERSON AND THE RIGHT TO FAIR HEARING

The true test of fair hearing is the impression of a reasonable man who was present at the trial, whether from his observation justice had been done in the matter. However, the reasonable man should be a person who keeps his mind and reasoning within the bounds of reason and not necessarily, extreme.

In this wise, if in his view the principles of fair hearing were not violated, then the proceedings will not be a vitiated. It becomes fundamental that justice should not only be done but should manifestly and undoubtedly be seen to be done. 

The principle of fair hearing entrenched in the Nigerian Constitution as a fundamental right is often illustrated by the twin pillars of justice: Nemo Judex in Causa Sua and Audi Alteram Partem. Fair hearing is synonymous but not coterminous with natural justice. Hearing of parties to a dispute need not be oral as it could be made in a written format.

Fair hearing is not only a common law right, but also a constitutional right under the Nigerian law, equally guaranteed under the African Charter on Human and Peoples Rights, the European Convention on People’s Rights and the United Nations Convention on People’s Rights.

The important consideration been that fair and equal opportunity be accorded to the parties. It envisages that a party who fails to avail himself of an unimpeded  opportunity of being heard cannot turn around to complain of lack of a fair hearing as the law assist the vigilant and not those that sleep, expressed in the Latin maxim; subveniunt leges, subveniunt jura, succvrrit lex. 

Over the years some principles or features have been developed as vitiating the fundamental right of fair hearing to wit: notice of hearing in which parties will have to present their case before a decision is made, right to know the case of the opposing party, the right to be given an opportunity to present a defence, and that the procedure must ensure fair hearing. Also, there must be real and effective access to a court, there  must be a hearing before an independent and impartial court or tribunal established by law.

There is equally the rule against bias, trial within a reasonable time, trial by a court or tribunal, bodies or persons to whom it applies and that trial be in public. It connotes that every person charged with a criminal offence shall be presumed innocent until proven otherwise by the court. The person shall be entitled to defend himself in person or by a legal practitioner of his own choice.

In addition, the record of the proceedings must be kept and the accused entitled to a copy of the judgment within seven days of the conclusion of the matter, no retrospective legislation, the vexed issue of double jeopardy that under no circumstance should a person who has been pardoned of a criminal offence or had been previously tried by a court of competent jurisdiction on the same facts or ingredients be tried for the offence again. Likewise, during the trial an accused person shall not be compelled to give evidence at the trial against him.

On the other hand, ex parte injunctions or applications sound antithetical to the notion of the concept of fair hearing as it breaches the maxim Audi Alteram Partem, an essential element of fair hearing. It connotes a form of order made by the court upon the application of one party to an action without giving notice to the other party, the other party been absent.

The ex parte injunction is valid until the next motion day by which time notice could have been served on the other party. The party will then have a chance of opposing the plaintiff’s application for injunction. The phrase ex parte means in itself that the court had not had the opportunity of hearing the other side.

In Nigeria ex parte injunctions seems to put individual interest above collective national interest and has been prone to abuses culminating in perverting the cause of justice. Understandably therefore a proper use of ex parte injunctions is essential for the administration and the attainment of justice, described in legal circles as an extraordinary procedure but sadly, experience has shown that an improper use or abuse of the process can defeat the course of justice which the process was designed to serve. Ex parte injunctions though constitutional and within the inherent jurisdiction of the courts as an exception to the Nemo Judex rule should be granted only where if it is not granted it results in irreparable or serious damage.

Irreparable damages meaning damage that if it occurs, return to the status quo becomes impossible and the suffering party cannot be compensated by an award of damages. Ex parte injunctions are not only constitutional but indispensable and unavoidable in the course of procedural steps to achieve justice. So there is the need for balance to achieve substantial justice.

The right to a fair hearing is implicit within the concepts of rule of law and fundamental human rights. Right to fair hearing is the taproot of every trial; without it a trial becomes useless in law.[49]

The principle of fair hearing was first introduced into Nigeria in the constitution by virtue of the 1960 Independent Constitution. Section 21 stated that: in the determination of his civil rights and obligations a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such a manner to secure its independence and impartiality. Section 22 of the1963 Republican Constitution of Nigeria contained the same provision in pari material with that of the 1960 constitution.

To solidify this position the 1979 constitution contains a similar but expanded provision. Section 33(1) stated that in the determination of his civil rights and obligations including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality. Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 protects the rights to a fair hearing as it has a similar provision with the hitherto 1979 constitution.

The section[50] provides for a fair hearing for any person before any competent court or tribunal in civil matters and each party to a dispute must be given a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such a manner as to secure its independence and impartiality. The provision does not only enjoin the court and tribunal to allow each party to state his own case in court or before a tribunal but to give each party notice of the date of hearing and place of hearing[51].

Under criminal proceedings, section 36(4)4 confers upon an accuse person the right to a fair hearing, whilst subsection (5) to (12) lays down the steps which must be followed. Curiously subsection (4) after stating that fair hearing must be in public and within a reasonable time, curtailed the right of fair hearing by providing that the court or tribunal may exclude from the proceedings persons other than the accused or his legal counsel in the interest of defence, public safety, public order, public morality, the welfare of persons under the age of eighteen years and the protection of the lives of the parties.

It equally preserves the existing right of the Government to withhold the disclosure of classified documents or other evidence on the ground that they are privileged.

As already pointed out, the right to fair hearing is not only protected by the common law or the constitution, it is also protected by other statutory provision for example. The Criminal Procedure Act is a statute which governs bringing of the accused to trial in southern Nigeria.

An accused person is presumed innocent until proved otherwise[52] and to ensure a fair trial of the accused both the constitutional provision and the statutory provisions are evoked.

I shall be looking at those provisions of the Criminal Procedure Act which assist fair hearing, of course the Evidence Act shall be referred to where applicable.

SUMMONS AND ARREST

            An accused person could be brought before the court by way of arrest with or without or in the case of a private prosecutor, by way of summons.

A summons is usually issued by a magistrate after being informed of the complaint and at his discretion on being satisfied that there is reasonable cause for an action. This is served on the accused to answer the charge contained in the summons within at least 48hours and at a time and place stated.[53]

A disobedience of this summons would entitle a police officer to arrest the accused without warrant. It is important to point out here what would lead to an unfair trial as where the accused did not receive the summons or it was not adequately brought to his notice.

By virtue of section 5 of the Criminal Procedure Act (C.P.A) such accused person must be informed clearly the cause of his arrest while section 9 of the same Act provides that he be given all facilities for obtaining bail and a counsel.

However where the arrest was done by a private person, he must within a reasonable time be handed over to the nearest police station or police officer who must then make enquiries into the cases. By virtue of section 19 of the Act, the accused must be discharged if no evidence is found to show that he actually committed any offence.

The statutory provisions in section 5 and 9 of the Criminal Procedure Act compliment the constitutional provisions in section 36(6) ofthe 199 constitution. At this juncture, the position at present should be examined. The question of bringing the accused to trial within a reasonable time has arisen acutely in recent times as many accused languish in police custody for even periods longer than they would have been if convicted.

Obaseki, J.S.C. noted in the case of IYERE v. DURU[54] that while the court appreciates that a police officer may detain an accused, cognisance must be taken of the provisions of Section 32 of the 1979 constitution (now in Section 36 of the 1999 constitution).

This confirms that there is a constant abuse of power by the police which has ended in the deprivation of the accused’s right to liberty and an infringement of his right to fair hearing, sometimes at the end of the day the accused may be found to have committed no offence at all.

VENUE

            By venue is meant the proper area of jurisdiction for the trial of an offence. The common law position before was that the venue is the neighbourhood of commission of the offence and from within which the jury would be drawn.

In Nigeria, the venue is the court of competent jurisdiction in other words the court in the district or division where the offence was committed either partially or wholly and where the parties resides.[55]

Furthermore, section 03 of the Criminal Procedure Act provides that the public must be entitled to watch the proceedings. However this is subject to the provisions of sections 204 and 223.

The Evidence Act in section 219 makes provision for the hearing to be held in private if it is inimical to public interest, while section 36(b) of the 1999 constitution provides that persons may be excluded from its proceedings in the interest of defence, public safety, public order and public morality. Also if a piece of evidence would not be in the public interest if publicly viewed, the court must be satisfied before allowing private viewing.

            The celebrated case of HAMMED APAMPA v. BALOGUN[56] comes to mind here where a piece of evidence was pleaded as privileged, therefore should be viewed in private, Aguda J. held that the provisions of Section 219 of the Evidence Act must be read together with the constitutional provision of section 33 of 1979 constitution which is now section 36(b) of the 1999 constitution,

THE CHARGE

Section 2 of the Criminal Procedure Act defined the ‘charge’ as being the statement of offence or offences which the accused is charged in a summary trial.

For one to be charged for an offence, it must be one which is provided for in a written law creating the offence as provided for in Section 36(16) of the 1999 constitution. By virtue of the statutory and constitutional provisions, some of the decrees promulgated in 1983 which were retroactive law should therefore be null and void.

This is because, such laws were not in existence when the alleged offences were committed and as such could not have committed any offence at all.

Such decrees like the miscellaneous offences Degree 1984 [57]which was back-dated, caused a man his life after been convicted for exporting hard drugs. The penalty was not in force when the offence was committed, also Decree no. 5 of 1977 which was backdated to 1975 saw many people in jail for offence which did not exist when the act was committed.

It is submitted that these enactments of the Military Governments cannot be questioned since their power was not derived from the constitution.

The charge however must be read to the accused and the court must satisfy itself that the accused understood the charged read to his, where he is led by errors or omissions in the charge, the accused can raise an objection.[58]

In most cases, the accused are not granted bail of freedom to be prepared adequately to defend itself through his legal representative. Bail is necessary by are being denied. Bail is the detention for the procurement of the accused; the necessity to procedure medical or social report pending final disposal of the case. In UZAZURIKE v. ATTORNEY GENERAL OF THE FEDERATION[59] the courts have over the years established criteria or guidelines that should be taken into consideration in an application for bail. The criteria to be followed in taking a decision in determining whether to grant bail by the court includes: The evidence available against the accused; availability of the accused to stand trial; the nature and gravity of the offence; the likelihood of the accused committing another offence while on bail, the likelihood of the accused interfering with the course of justice; the criminal antecedents of the accused person; the likelihood of further charge being brought against the accused; the probability that the accused may not surrender himself for trial; the detention for the protection of the accused; the necessity to procure medical or social report pending final disposal of the case. In SULEIMAN v. COMMISIONER OF POLICE[60] per Tobi JSC said: “The most important consideration in the bail decision is the determination of what criteria the court use or invoke in granting or refuse bail. The bail ability of the accused depends largely upon the weight the court attaches to one or several of the criteria open to it in any given case. The determination of the criteria is quite important because the liberty of the individual stands or falls by the decision of the court. In performing the judiciary function, the court wields a very extensive discretionary power, which must be exercised judicially and judiciously. The main function of bail is to ensure the presence of the accused at the trial. That is the cynosure of all criteria it is the centre-piece, so this criterion is regarded as not only the omnibus ground of granting or refusing bail, but the most important”

In UWAZURIKE v. ATTORNEY GENERAL OF THE FEDERATION the attitude of the court to application for bail irrespective of the nature and gravity of offence with which a person is charged, the onus is on the prosecution to show the criminal culpability of the accused which will serve as a pointer to the fact that an accused person should not be released on bail. On the other hand, the accused has a duty to show that he is not criminally liable in order not to jeopardise his chances of bail. The discretion of the court must be based on fact and not in vacuo. Before it can be said that a judge properly exercised the discretion whether to grant or refuse bail with sufficient, correct and convincing reasons, and not on his whims and fancies, he must examine all the materials before him and consider the applicable law.[61]

MUNIR v. FRN [62] The principles upon which an applicant will be admitted to bail pending his appeal include: (1) That bail will not be granted pending an appeal save in exceptional circumstances or, (2) where the hearing of the appeal is likely to be delayed, (3) that in dealing with the latter class of the case, the court will be regard; (a) not only to the length of time which must elapse before the appeal can be heard, but also to (b) the length of the sentence to be appealed from and further (c) that the two matters will be considered in relation to one another. In other words, in the absence of special circumstances, bail will not granted unless a refusal would have the result of a considerable proportion of the sentence being served before the appeal can be heard.

In determining exceptional or special circumstances in granting bail pending appeal, the court take into consideration the following (1) if the applicant being first offender had previously been of good behaviour. (2) If substantial grounds of law are involved in the appeal, it is useful to see if there is any prospect of success on appeal or where a sentence is manifestly contestable as to whether or not it is a sentence known to the law, bail should be granted. (3) Where having regard to the very heavy congestion of appeals pending in the courts, a refusal of bail of the applicant will have the result of the whole or a considerable portion of the sentence imposed on the applicant being served before the applicant can be heard. (4) Where the application is based on ill-health and the applicant cannot get the necessary treatment in prison or where the machine used in treating the applicant is not movable, thus cannot be moved to prison in such circumstances and in order not to put the application health in serious jeopardy, bail will be granted. (5) Before considering the above conditions for admitting convict person serving a term of imprisonment to bail pending determination of his appeal it is necessary or imperative to ensure that the following preliminary conditions have been complied with, namely; that the applicant has indeed, in fact lodging an appeal to the Court of Appeal which is pending; has complied with the conditions of appeal imposed and these will show the seriousness of his application; and if he was granted bail during his trial that he has not attempted or tried to jump bail. [63]

The grant or otherwise of bail pending trial or pending an appeal is discretionary like other discretions is required to be exercised judiciously and judicially to the court faced with such an application. The court must not refuse the accused bail as a punishment; this is because the accused is usually presumed innocent until his guilt is proved. The accused is only required to enter into recognisance in the sum fixed by the court; it is not a magistrate to whom application for bail has been made refused or neglected to grant bail, application could be made to a judge of high court who shall have power to grant such bail. Once a court has refused to grant bail, application for bail should be filed at the higher court, not in any court of the same co-ordinate jurisdiction.[64]

THE TRIAL

The trial is when the accused is in court or tribunal to defend himself.

The two parties must be present but where only the defendant appears and the court is satisfied that the complainant was informed the complaint can be dismissed except where the complainant has sent a reasonable excuse to the court.[65] However where the defendant failed to appear a bench warrant is issued out to order him to appear except there is no proof of service of summons or the defendant is ill. [66]

An accused must be present at his trial except for the above reasons or where the magistrate dispenses with the accused after pleading guilty especially to an offence punishable with not more than N100.00 or 6 months or where the accused’s sanity is questionable or for public decency. This can be found in section 210 and 223(2) of the Criminal Procedure Act.

            The defendant is entitled to legal representation by virtue of section 352 of the Criminal Procedure Act. This compliments the provision in section 36(6) (c) of the 199 constitution. However where the accused loosen this right due to his own default, he cannot plead unfair trial.

            In case of inability of the accused to get legal representation, it is provided that the court shall provide him one without paying any charge.[67]

            In the case of SHEMFE v. C.O.P.[68] appellant was charged to court on 14^th December, 1960. There followed several adjournments, before the case was finally fixed for 27^th June 1961. The counsel for the appellant sent a telegram asking for an adjournment which was refused on the ground that he did not give any reason for his non-appearance and did not make arrangement for another lawyer to hold his brief.

On appeal against conviction on the grounds of denial of fair trial due to no legal representation, it was held that the appeal could not succeed as the absence of the counsel was due to the counsel’s default.

On the other hand, in the case of GOKPA v. I.C.P.[69] where the accused was charged with stealing and the case was adjourned on several occasions but finally on 29^th November 1960 when the appellant appeared, and his lawyer was about 23 miles away because of traffic hold-up, the magistrate allowed only a few hours adjournment and started hearing the case.

The appellant who decided not to take an active part in the proceedings was convicted. On appeal, the court held that the hours of adjournment was too short to arrange for his lawyer; therefore he was denied the opportunity of fair hearing as he did not have legal representation.

The constitution provides that every accused person is presumed not guilty until proved otherwise; the onus of proof therefore is on the person who asserts it.[70] This provision is of general applicability, that is, it covers all criminal cases and civil matters.

In the case of ARE VADISA[71] and R. v. NWOKAFOR[72] where the cases all similar, it was held that where there was evidence of a fight between two persons but no evidence either way as to what happened leading to death of one of them, the benefit of doubt thus created must be given to the accused.

It should be noted here that at any stage of the proceedings, the Attorney General can withdraw from the prosecution by the powers conferred on him by virtue of section 75 of the Evidence Act by entering a ‘Noile Prosequi’ and this power is an unbounded constitutional. This entitles the accused to a plea of pardon which is a ban to further proceedings, see the case of R. v. PEPPLE.[73]

By virtue of section 181 of the Criminal Procedure Act, which lends weight to the constitutional provision of the rule against double jeopardy allows the accused to plead autrefois acquit or autretois convict as the case may be. This is a special plea and where the court is satisfied with the plea, it becomes a bar to further proceedings; such an accused should be discharged immediately.

The accused however maybe called to answer questions in cross examination but he has right to question and cross examine his own witness if he is in the witness box. The accused person is a competent but not a compellable witness at every stage of his defence[74] and as such he can decide to answer question or stand mute.

It is submitted here that this part of the Evidence Act should be reviewed to allow the accused to be guided by his counsel (where he has one) to answer questions as a refusal to answer questions put to him might end up in unfair trial because such an accused cannot be said to have defended himself adequately.

This review would go a long way in ensuring a fair trial of an accused. It is essential to note that where an accused pleads denial of his tight due to technical or procedural fault, the decision is rendered a nullity and a retrial would be ordered.

CHAPTER FOUR

CONCLUSION

So far, I have examined the history of the Fundamental Human Rights generally as well as the constitutional provisions of the right to fair hearing specifically. It has been established that the right to fair hearing has been constantly abused from government to government in Nigeria.

The accused is placed in a vulnerable position without the constitutional and statutory protection. The question raised here is how protected is the accused in view of the combined abuse of power of the regime in power on one hand and the police on the other hand?

The right to a fair hearing is fundamental to the rule of law and to democracy itself in most advance countries of the world today. This right applies to both criminal and civil cases, although certain specific minimum rights which affect only criminal cases are set out in Article 6 of the human right bill of rights.

The right to a fair hearing, which applies to any criminal as well as to the determination of civil rights and obligations, contains a number of requirements such as:

1.      There must be real and effective access to court with exceptions in the case of vexatious litgants, minors, prisoners etc.

2.      There must be a hearing before an independent and impartial court or tribunal established by law.

3.      The hearing must be held within a reasonable time.

4.      The applicant must have a real opportunity to present his or her case or challenge the case against them. This will require access to an opponnent’s submissions, procedural equality and generally requires access to evidence relied on by the party and an oral hearing.

5.      The court or tribunal must give reasons for its judgment.

6.      There must be equality of arms between the parties, so, for example, the defence has the same right to examine witnesses against them as the prosecution has and both parties have the right to legal representation etc.

7.      In criminal cases, there is a right to silence and a privilege against self-incrimination.

8.      An accused person must have the right to effective participation in their criminal trial.

9.      The hearing and judgment must be made public. Hearing can, however, be held in private for some acceptable reasons.

The Nigerian experience is coupled with many problems both on the administration of justice as well as the procedure.

One can easily be misled here to think this problem is restricted to Nigeria alone. This is not so as there are cases of unfair trial in the Western world as we have seen in foreign cases treated in the earlier chapters. However, the Nigerian position leaves much to be desires.

            The underlying cause of Nigeria’s problem is based firstly on the low literacy level of its citizen. In a country where less than 50% of her citizens are literate, majority are not aware of their rights and where one is aware the police are ready to assist in keeping the accused in custody without trial for a long time.

            Secondly the Legal Aid Council which came into force by virtue or Decree 58 of 1976 to give aid to less privileged citizens who cannot afford a lawyer are barred against appearing in cases attracted capital offences thereby denying such an accused of fair trial.

            Thirdly is the inadequate of funds to the judiciary and its non-independence. Independence of the judiciary is essential to enable it function properly as a justice dispensing organ as well as in interpretation of laws.

            (Decree 1, Section 5) for instance, states inter alia that no question as to validity of any other decree or edict shall be entertained by any court of law in Nigeria. This means in effect that legislative acts of the Military is supreme since especially its validity is not derived from the constitution hence not bound by its provisions and cannot be said to be Ultra Vires.

            The judiciary has been hampered in its duty to ensure the constitutional protection of the citizens of Nigeria. It is my submission that these ouster clauses are swords which delimit the constitutional protections.

In the aspect of the legislatures promogation of same- sex marriage in Nigeria, it is my view that the opinion of the electorates ought to be sought and they ought to be adequate fair hearing before the enactment of such law.

SUGGESTED REFORMS

REVIEW OF THE LEGAL AID COUNCIL

            The legal aid council which was established to help the poor and the accused should be reviewed. The jurisdiction of the council should be widened to include various offences which attract capital punishment.

            In accordance with section 36(5) which deals with the presumption of innocence until (proved otherwise) the council would have convicted the accused, so to speak by denying his legal representation.

            This would not be in line with the duties of the council whose major aim is to provide legal representation for indigent Nigerians; this in my humble view should be done without discriminating against the offence.

INDEPENDENCE OF THE JUDICIARY

Judiciary by virtue of its job which is dispensation of justice, its independence is stifled would affect its work.

The judiciary should be independent not only to dispense justice but also this has showed down the progress of the courts. The judiciary as of now lacks both human and material resources and this has showed down the progress of the courts.

Justice A.R. Bakare (rtd),  recently commented at his farewell party that he was retiring early due to his falling eyesight, arthritis and back pain which was due to his always bending to record proceedings with poor lighting conditions and poor ventilation.

I humble suggest that more money be pumped into the judiciary  and for independence in their budget control at least they will be able to provide better machine to improve their services thereby ensuring fair hearing to citizens.

Secondly, the judiciary should be independent in the sense that judges should be able to dispense justice without fear of being castigated by the government of the day. This would reduce incident of judges ‘hands being tied’.

PRISON VISITS

       In view of the over populated situation in our prisons which is partly due to the inability of the police to bring the accused to trial within reasonable time, and the slow progress of the courts, most of the inmates have found themselves serving more than their term if they had been convicted. The importance of prison is to reform and rehabilitate criminals and not necessarily putting them into hardship. It is expected that the prison authorities and other authorities concerned should set up a monitoring device to assess and record the reforms being made on these prisoners so as to enable the judges, the magistrates and even their relative granting them access to releasing them or appealing for their release based on reformed good conducts and not necessarily because of long stay in the prison.

Chief Judges and Chief Magistrates should be made to visit our prisons periodically and I humbly suggest that this be increased to probably quarterly so that those accused of minor offences like wandering and petty pilfering as well as those already proved to be reformed trough the monitoring system could be released rather than languishing in police custody indefinitely.

Secondly, the literacy level of the police especially those in the lower ranks leave much to be desired. Majority of these policemen do not know much about rights and the law and they seem to rejoice when a citizen allegedly runs afoul of the law.

The power of the police are so abused that many citizens have suffered from denial of their rights to fair hearing, liberty and personal dignity. It is my view that the provision of section 36(6) lacks the necessary machinery to ensure that affected citizens are rightly compensated.

After all said and done it would be reasonable to conclude that the right to fair hearing in Nigeria is greatly abused. There is lack of effective machinery ranging from lack of funds to lack of well qualified human personnel.

To improve the lots of the citizens of Nigeria, the present laws should be reviewed to plug the loopholes so that in the words of the utilitarian, it would bring the greatest happiness to the greatest number of people.

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[1] Holy Bible Genesis Chapter 3 v. 8-13.

[2] Aristotle, politics, P. 127 and Plato, Ethics, Para. 1134b

[3] Holy Bible. Genesis Chapter 3 v. 8-13.

[4] Black, H.C. Law Dictionary, West Publishing CO., 5^th ED, Pg. 120.

[5] See Kanda V. Government of the Federation of Malaya. (1962) Ac 322 at 337.

[6] (1967)1 ANLR 67, see also A.I. Wilson V. A.G. of Bendel State & Ors. (1985)2 S.C. 191.

[7] See Awolowo v. A.G. of the federation. (1962) LLR 171, also Denloye v. Medical Dental Practitioners’ Disciplinary Tribunal 1968)1 ANLR 306.

[8] See Dimes V. Grand (Junction) Canal, (1852) 3HLR 39.

[9] (1982)3 NCLR 719.

[10] Section 35(4)(a-b) of 1999 Federal Constitution as amended.

[11] Section 35(4)(a-b) of 1999 Federal Constitution as amended.

[12] Section 36 (1) of 1999 Federal Constitution as amended.

[13] See, for example S. 27 of the workmen’s compensation Act, 1942.

[14] See, Eshugbayi Eleko v. Government of Nigeria, (1951) ac 662.

[15] Decree No. 3, Section 5 of 1984.

[16] (1963) 14 C.B. (N.S) 180.

[17] (1968) INLR 306.

[18] (1610)8 Co. Rep. 107.

[19] (1852) 3 H.C.L. 75.

[20] (1959)4 F.S.C. 38.

[21] See also State V. M.A. Oyenubi & A.G. Chief Magistrate, (1973)3 U.I.L.R. 156.

[22] Section 4(1) Decree 2, 1984.

[23] Section 4(1), Decree 2, 1984.

[24] Section 35 (4) (a) (b).

[25] See, the guardian, February 17 at page 14.

[26] (1986)5 NWLR 665 also Folade v. A.G. of Lagos State. (1971)I NMLR 172.

[27](1967) NMLR 387 at 390

[28] (1963) N.N.L.R. 88

[29] Section 36(6) (a) Constitution of the Federal Republic of Nigeria 1999.

[30] (2008) All FWLR (pt 402) p. 1138, 1139.

[31] CRIMINAL Evidence in Nigeria p. 91.

[32] (2008) All FWLR (pt 428) p. 304, 305.

[33] Solola v. State.

[34] The Nigerian Law School Electronic Handbook on Criminal Procedure p. 39-40.

[35] (2008) All FWLR (pt 402) p. 1138, 1139.

[36] (2005)All FWLR (pt 266) p. 1176.

[37] (1962)LLR 171

[38] (1981)2 NCLR 677.

[39] (1986)2 NWLR 285 of Ezea V. Queen (1963) All NLR 245.

[40] Section 36(6)(b) constitution of the Federal Republic of Nigeria.

[41] (1964) NNLR 61.

[42] Section 1(1)

[43] (1962) A.C. 220

[44] See, s. 221 of the C.P.A.

[45] (1948) 12 WACA 368.

[46] 399 U.S. 436 (1970).

[47] (Supra).

[48] (1952) 14 WACA 368.

[49] Okpara O. Human Rights Law and Practice in Nigeria (Nigeria: Chenglo Ltd, 2005) p.179. In P.D.P V. K. S.I.E.C ( 2005) 15 NWIR (pt 948) at 240, the court held that fair hearing is in most cases synonymous with natural justice an issue which clearly is at the threshold of our legal system. Once there has been a denial of fair hearing, the whole proceedings automatically become vitiated with a basic and fundamental irregularity, which renders them null & void. See also Ojengbede v Esan (2001) 18 NWLR (pt.746) 771, Sokoto State Government v. kamdex Nig ltd (2004) 9NWLR (pt 878) 345. In Ansambe v B.O.N Ltd (2005) 8 N.W.L.R. (pt.928), the court opined that fair hearing does not necessarily mean a hearing involving oral representation. In other words, a hearing is fair if the parties are given the opportunity to state their case in writing. See Alsthom v Saraki (2005) M.J.S.C. VOL3 at 128, where the Supreme Court stated that the principle of fair hearing is fundamental to all courts procedure and proceedings and like jurisdiction the absence of it vitiates proceedings however well conducted.   

[50] 36 (1) of the constitution of the Federal Republic of Nigeria 1999 (as Amended, 2011)

[51] See Olumesan v.Ogundipo (19996) 2NWLR (Pt.433) 628. See also Lukman, A.L. An Anaysis of the Concept of Fair hearing and the Principles of Natural Justice in Egbewole, E, The Jurist University of Ilorin: Essays in Honour of Hon Justice Faruk A,(Ilorin: Law Students Society,2005) at pp.127-128.

[52] Section 36(5) of the 1999 constitution of the Federal Republic of Nigeria

[53] See Section 81 and 83 of the C.P.A

[54] (1986) 5 NMLR 665

[55] Section 64, C.P.A

[56] Unreported Suit No. 1/211/65 of 20/10/70

[57] Decree No. 20, 1984

[58] See Section 166 and 167 of the C.P.A

[59] (2009) All FWLR (pt 489) p. 549, 553

[60]  (2008) All FWLR (pt 425) p. 1627-1628, 1630

[61] Uwazurike v. Attorney General of the Federation

[62] (2009) All FWLR (pt 500) p. 775, 776

[63] Munir v. FRN

[64] Electronic Handbook on Criminal Procedure Act p.35

[65] See Section 280 of the C.P.A

[66] Section 281 of the C.P.A

[67] See 21 of the C.P.A and Section 33 (6) (c) 1999 constitution

[68] (1962) 2 All N.L.R 98

[69] (1961) 1 All N.L.R 428

[70] See section 137 of the Evidence Act

[71] (1967) NMLR 304

[72] (1944) 10 WACA 5

[73](1949) 12 WACA 44

[74] See 159 of the Evidence Act