NOTE THE
FOLLOWING RIGHTS;
1)
Right
to fair hearing – s. 36(1) & (4) CFRN
2)
Right
to be presumed innocent – s. 36(5) CFRN
3)
Right
to be informed of the crime alleged – s. 36(6)(a) CFRN
4)
Right
to be given adequate time to prepare for his defence – s. 36(6)(b)
5)
Right
to a counsel – s. 36(6)(c)
6)
Right
to examine witnesses – s. 36(6)(d)
7)
Right
to an interpreter – s. 36(6)(e)
8)
Right
to be tried only for an offence known to law – s. 36(12), Aoko v. Fagbemi
9)
Right
to one trial for one offence – right against double jeopardy - s. 36(9)
10) Right against trial for an
offence for which accused has been pardoned – s. 36(10)
11) Right to remain silent – s.
36(11)
12) Right against trial upon
retroactive legislation – s. 36(8)
FOUNDATION RULE: IN FAJEMIROKUN V COMMERCIAL
BANK NIG.LTD. The court held; (PER
MUHAMMED, J.S.C)
‘’The fundamental rights provided by
the constitution can be classified into two categories for the purpose of their
observance and enforcement.
Firstly,
there are rights which must be observed whenever the occasion for their
observance has arisen. They are intrinsic to the occasion and cannot be
divorced from the occasion. They are
generally procedural rights and are embodiments of a fair trial in courts or
tribunals of democratic society, for example rights of an accused to defend himself in person or through a legal
practitioner of his choice, the right to an interpreter where the accused does
not understand the language of the court. These are intrinsic to the trial and failure to observe such rights
is a ground of appeal
Second
category of the fundamental rights comprises of those rights that are
enforceable by the High Court under SECTION 42 of the constitution.
IMPLICATION:
Breach of these rules may nullify the proceeding where it goes to the root of
the matter.
1.
THE
RIGHTS TO FAIR HEARING
STATUES:
SECTION 36(1) &(4) CFRN 1999
DEFINITION:
A Judicial/ administrative hearing conducted in accordance with due process
JUDICIAL
DEFINITION: AUDU V FRN: ‘’The
law is well settled that fair hearing within the meaning of SECTION 36(1) of
the CFRN, means a trial or hearing conducted
according to all the legal rules formulated to ensure that justice is
done to the parties.
RULES OF FAIR
HEARING IN ORUGBO
V UNA
RULE 1: The fair hearing principles
entrenched in the constitution is so
fundamental in the judicial process or the administration of justice that
breach of it will vitiate or nullify the proceeding.
RULE 2: Once an appellate court comes
to the conclusion that there is a breach of the principle of fair hearing, the
proceedings cannot be salvaged as they are null and void ab initio.
RULE 3: The test of fair hearing is the
impression of a reasonable person who was present at the trial whether from his
observation justice has been done in the case. He must keep his mind reasoning
within the bounds of reasoning and not extreme. And so if in the view of the
reasonable man who watched the proceedings, the principles of fair hearing was
not breached an appellate court will not nullify the proceeding.
RULE
IN BABALOLA V OSHOGBO L.G
RULE: In
any case, where the issue of fair hearing has been made an issue, the court
must first of all determine it before all other issues in the matter.
RULE IN INEC V MUSA
RULE:
Fair hearing in essence means giving equal opportunity to the parties to be
heard in the litigation before the court.
Where parties are given opportunity to be heard they cannot complain of breach
of the fair hearing principles
THE TWO PRINCIPLES OF FAIR
HEARING
IN DEDUWA & ORS V OKORODUDU &
ORS: A fair
hearing must of course, be a hearing that does not contravene the principles of
natural justice. The principle of natural justice are; No Man Can Be A Judge in his own cause (Nemo Judex In Causa Sua) and
Both Sides shall be Heard (Audi
alterem partem).
AUDI
ALTEREM PARTEM
IN GARBA & ORS V UNIVERSITY OF MAIDUGURI,
the court held that;
a)
The
rule stipulates that each party must be given an opportunity of stating his
case and answering if he can any arguments put forward against it.
b)
The
rule requires that a person liable to be directly affected by proposed
administrative acts, decisions or proceedings be given adequate notice of what
is proposed so as to give him an opportunity to make representations and
effectively prepare his own case and to answer the case he has to meet
HOWEVER,
IN NBA V AKINTOKUN, the court held
that
‘’The
audi alteram rule is not breached if the person accused was given adequate
opportunity to appear and present his case or defence to the case against him
but he chose not to avail himself of the opportunity. He can therefore not
complain that he was denied fair
hearing, since he chose to stay away from the hearing….any complain on appeal
that there has been a breach is liable to summary dismissal…’’
Furthermore
the court in FRN V AKABUEZE, the
court held that
‘’…fair hearing must include giving to a party
opportunity to engage a legal practitioner of his choice who will have an
opportunity to present his case before an impartial court or other tribunal in
an atmosphere free from fear and intimidation…’’
This was
affirmed in PADAWA & 8 ORS V JATAU: Were
it was held that;
‘the principle of audi alterem patem both under the constitution and
the common law, insist that each party must not only be heard but must be afforded
the opportunity to present/defend the case either in person or through a
counsel of their own choice’’
Also, there must be absence of
bias and likelihood of it. What constitute bias?
IN ORUGBO V UNA, the court explained what constituted
bias
‘’it is the attitude displayed by
the judge, if the judge is shown derive any pecuniary or substantial benefit
from the subject-matter of litigation in such situation, the issue of
likelihood of bias would arise’’
EXAMPLES ARE;
IN ADIO V ATTORNEY GENERAL OF OYO-STATE:
The matter had to do with a relationship between husband and wife. It was a
relationship between late Chief Bola Ige who was the Governor of Oyo State and
the wife Hon. Justice Tinuke Ige, then a Judge of the High Court of Justice,
Oyo State.
In ABIOLA V FEDERAL REPUBLIC OF NIGERIA:
The issue that arose for determination in respect of likelihood of bias was
that the justices mentioned in the motion at Page 4 of the Law Report be
excluded from hearing the matter on the ground that they instituted an action
for libel against the Weekend Concord, the respondent. It was in the peculiar
circumstances that BELLO,CJN granted the application.
However,
take note that in DEDUWA V OKORODUDU, The
Supreme Court held that
‘’the mere fact that the trail
judge’s mother is an itsekiri (i.e of the same ethnic group) and lived in an
itsekiri community at the material time is not sufficient to disqualify him
from adjudicating on the matter on the ground that he had an interest in the
subject matter of the suit’’
NOTE ALSO THAT;
1.
The
defendant must be given opportunity to call his witness AND Be allowed to
cross-examine prosecution witness…..see SECTION 36(6)(d)
2.
Trial
must be conducted within reasonable time. See SECTION 36(1)(a) CFRN and SECTION
382 ACJA
IN OBIASO &ORS V OKOYE, the court
defined REASONABLE TIME in line with FAIR HEARING;
‘The period of time which in the search of
justice, does not wear out the parties and their witnesses and which is
required to ensure that justice is not only done but appears to reasonable
persons to be done’’
NEMO JUDEX IN CAUSA SUA
MEANING: IN ORUGBO V UNA: It means a person should not be a
Judge in his own cause.
The Rule
Against Bias: GARBA V UNIVERSITY OF MAIDUGURI
a)
Judge
must not be interested in the parties
b)
Judge
must not be interested in the subject matter
c)
Judge
must not be interested in the outcome of the proceedings
d)
Judge
must not have a pecuniary interest in the matter.
FINALLY,
ELEMENTS OF FAIR HEARING….EFFIOM V
STATE and EZENWANKWO V STATE
a)
Easy
access to court
b)
Right
to be heard including right to call witness in defence
c)
Impartiality
of the adjudicating process
d)
Proceeding
to be held in public
e)
The
court must be on established by law
f)
Equal
treatment of all parties concerned.
2.
RIGHT
TO BE INFORMED OF THE CRIME ALLEGED
RULE:
The information must be given to the accused; prior to the trial, at the time
of arrest and also beginning of trial.
STATUTES:
SECTION 36(6)(a)CFRN, SECTION 215 CPA,
SECTION 187 (1)(CPA), 211(1)ACJL, SECTION 356(1)ACJA
SECTION 36(6)(a) CFRN: Every person charged with a criminal
offence shall be entitled to be informed promptly in the language that he understand and in detail of the nature of the offence.
SECTION 356(1) ACJA: At the commencement of the HEARING, the court shall state or
cause to be stated to the defendant, the substance of the complaint and shall
ask him whether he is guilty or not guilty.
RULES
IN OKEKE V STATE
RULE 1: The accused should be informed
of his crime in the language he understands before he takes his plea.
RULE 2: Failure to explain the charge
in the language he understands will be fatal to his arraignment.
IN ANYANWU V STATE: The court explained this
right;
‘’it is to ensure a fair trial of
the accused person, that the accused person understand the charge or
information against him, that he understand and is able to follow the trial to
his conviction or acquittal as the case may be’’
HOWEVER,
GENERAL RULE: A person cannot be convicted of
an offence for which he has not been charged and plea taken and he being tried
thereon.
EXCEPTION ONE: Conviction for a lesser offence
than the one charged. So a trial court is empowered to convict an accused for a
lesser offence than one with which he is charged.
STATUTES:
SECTION 218(2) CPC, SECTION 179(2) CPA, SECTION 171(1)(2)ACJL
CASE:
ADAVA V STATE: The appellants were charged with the offence of culpable
homicide punishable with death under SECTION 221(a) PENAL CODE. They were
sentenced to death. When their appeal got to the SUPREME COURT, in exercise of
the power of SECTION 218 CPC, the
Supreme Court convicted each of the appellant for a leesser offence of
voluntarily causing hurt without provocation under SECTION 246 of the PENAL
CODE and each of them sentenced to one year imprisonment.
EXCEPTION TWO: Accused may be charged for another offence
where evidence at trial disclose another offence for which he was charged.
N.B: The
offence must be closely related to the initial offence charged.
CASE: NWACHUKWU V STATE: The appellant was tried for Armed Robbery. At the
end of trial, the trial court found the offence of armed robbery not proved and
convicted the appellant of robbery. The appellant appealed on the ground that
it was a violation of the constitutional provision on fair hearing to convict
him for an offence he was not charged nor to which he pleaded.
The
Supreme Court held that, once a person has information of a grave offence, he
is deemed to have information of the lesser offence.
EFFECT OF BREACH OF SECTION 36(6)(A)
IN
YAHAYA V STATE: The
court held that failure to adhere to this provision in a criminal trial, the
trail is rendered null and void ab initio. All other matters that follow
thereafter amount to an exercise in futility and are of no significance.
3.
RIGHT TO ADEQUATE TIME AND FACILITY TO PREPARE
FOR DEFENCE
SECTION
36(6)(b) CFRN provides that;
Every person charged with a criminal
offence shall be entitled to be given adequate time and facilities for the
preparation of his defence.
IN UNIVERSITY OF
ILORIN V AKINROGUNDE: The
respondent who was accused of leading a Student protest leading to damage of
the University property was given less than 24 hours to make his defence to the
written allegation against him. The court HELD;
‘By merely serving a charge sheet on the
respondent and requiring him I effect to prove his innocence, without confronting
him with accusers and by giving him less than 24 hours to prepare his defence,
the committee breached this rule.
RULES IN EBELE OKOYE V COP
The
court held that this right will be activated when the accused is made aware of
the charge against him, his entitled to prepare his defence. The court went
further to define the word ‘’facilities’’ in this section to include ‘’resources or anything which would aid’’
the accused person in preparing his defense to the crimes for which he
is charged.
The
court went further to state the facilities to include; the statement of
witnesses interviewed by the police in the course in the course of their
investigation which might have absolved the accused of any blame or which may
assist the accused to SUBPOENA such favourable witness that the prosecuting
counsel may not want to put forward to testify.
RULE IN UDO V STATE
The
supreme court held that a trial judge must grant adjournment in a murder charge
once the counsel is absent at the hearing of the accused person. Subsequently,
where a witness is absent and an adjournment is sought, the accused person
should normally satisfy that;
a)
The
witness is material to his case
b)
The
defendant has not been guilty of neglect in procuring the witness to attend
c)
There
is a reasonable expectation that can procure his attendant for a certain date.
IN
OGOLI V FRN: The court held that
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 Practioner of his choice.
4.
RIGHT TO COUNSEL
STATUTES:
SECTION 36(6)(C)CFRN, SECTION 209(1)
ACJL, SECTION 211 CPA, SECTION 349 ACJA
SECTION 36(6)(C): Every person who is charged with
a criminal offence shall be entitled to defend himself in person or by legal
practitioner of his own choice.
The
court is duty bound to inform the accused person by virture of SECTION 349(1)ACJA:
‘’Where a defendant charged before
the court is not represented by a legal practitioner, the court shall:
a)
Inform
him of his rights to a legal practitioner of his own choice
b)
Enquire
from him whetehr he wishes to engage his own legal practitioner or a legal
practitioner engaged for him by way of legal aid.
Consequently,
any statute that derogates from this constitutional provision will be null and
void. In UZODINMA V COP: The appellant was denied legal representation
on the ground that by virtue of section 28, Area Court Edict and Section 390
CPC, a legal Practioner has no right of audience before the Area Court. The
Supreme Court held that the provisions of these sections run counter to Section
36(6)(c) and to the extent of that inconsistency, each of the above sections is
a nullity.
However,
were the accused chooses not engage the service of a counsel or because he
cannot afford one, a trial cannot be held to be contrary to fair hearing in
such case. AMANCHUKWU V F.R.N
BUT, take note of the provision of SECTION 349 (4) ACJA;
‘’Where the defendant fails, or is
unable to secure a legal pracationer arranged by him after a reasonable time,
the court may direct that a legal practitioner arranged by way of legal aid to
represent the defendant’’
ALSO, SECTION
349(5) ACJA;
‘’The court may assign to any legal
practitioner whose place of practice is within the jurisdiction of the court,
any case of a defendant who has no legal representation, and the legal
practioner shall undertake the defence of the defendant with all due diligence,
in which case, the legal practioner shall not pay any filing fee or service fee
in respect of the case so assigned’’
V.I.P: THE LEGAL
PRACTIONER MUST NOT BE ONE UNDER ANY DISABILITY OF ANY KIND. SEE SECTION 2and 8 of LEGAL PRACTIONER ACT
IN AWOLOWO V FEDERAL MINISTER OF INTERNAL
AFFAIRS: The court in interpreting the provision of SECTION 36(6)(C), held that
it is clear that the legal practioner must be one not under any disability,
must be one entitled to practice in Nigeria.
TO BE CONTINUED!!!!!!!!!
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