CONSTITUTIONAL SAFEGUARDS TO ENSURE FAIR TRIAL OF AN ACCUSED PERSON

Follow @wingrassnews

CONSTITUTIONAL SAFEGUARDS TO ENSURE FAIR TRIAL OF AN ACCUSED PERSON

This has to do with fundamental rights. Fundamental right is a right that stands above the ordinary laws of the land and which in fact is antecedent to the political society itself.

The learned author of Salmons on Jurisprudence 12^th Edition dealing with Legal Rights in a wider sense of the term said at page 231 that:

“In this generic sense, a legal right may be defined as any advantage or benefit conferred upon a person by a rule of law”.

The main purpose of guarantee of these specific Fundamental Rights in our Constitution is to prevent disorder and to leave an outlet for the oppresses to seek a redress and fair play in the sanctuary and temple of justice, thereby serving as the remedy for defect of the police and those ugly things one finds in the body politic – Per Unurhoro, J. in Isagba v. Ashiedu (1982) NCLR 784, HC  Bendel State.

RIGHT TO BE INFORMED OF THE CRIME ALLEGED

This is the provision that the accused understands the charge against him. It is enacted in section 36(6)(a) of the 1999 Constitution of the Federal Republic of Nigeria (CFRN), that a person charged with a criminal offence is entitled to be informed promptly, in the language that he understands and in details, of the nature of the offence (that is, crime alleged).

The main purport of the above section is to make it mandatory for the prosecution and the court to inform the accused person of the offence for which he is accused and thus enable him prepare his defence. – Maja v. The State (1980) 1 CLR 212. The issue is not which section of the law is referred to, but what particulars make up that fundamental information without which a defence cannot be put up.

It is therefore not a breach of this section, that at the trial for an offence for which an accused is charged and of which he was informed at the time of the charge, the accused is eventually convicted for another different offence provided that the court has power to convict for the latter offence in a trial for the former – E. O. Okonufa & Anor. v. The State (1981) 6-7 SCI; Maja v. The State (supra). But such a breach occurs because of failure to read and explain the charges to the accused person when he is standing his trial – Ibrahim v. The State (1979) 3 LRN 110.

The information stipulated under section 36(6)(a) should be given to the accused prior to the trial, at the time of arrest or at the beginning of the trial when he is arraigned – Maja v. The State (supra).

It is also important that such information should be in a language which the accused person understands. However, English language is the language of our courts. In Ogunye v. The State (1999) 5 NWLR (Pt. 604) 548 at 568, Iguh J.S.C observed that:

“I cannot over-emphasize the fact and it is a matter of common knowledge and notoriety of which judicial notice ought now to be taken that the lingua franca in this country is English and that this is the official language employed in all proceedings before the superior courts of record throughout Nigeria.”

RIGHT TO FAIR HEARING

The right to fair hearing is a constitutional right enshrined under section 36(1) and (4) of the 1999 CFRN. The right cannot be waived or statutorily taken away. Also, trial courts are enjoined to ensure that hearing notices are issued on parties before embarking on the trial of any matter before them – N. A. C. B Ltd. v. Obadiah (2004) 4 NWLR (Pt. 863) 326 CA; Chigbu v. Tonimas (Nig.) Ltd. (1999) 3 NWLR (Pt. 593) 115 CA; Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt. 622) 290 at 305 SC; Awoniyi v. The Registered Trustees of the Rosicrucian Order, Amorc (Nig.) (2000) 6 SC (Pt. 1) 103; Araka v. Ejeagwu (2001) 5 WRN 1 SC.

For a hearing to be fair there must be a hearing in the sense that the parties know the bone of contention and be allowed to give evidence for or against the fact in issue. In Obodo v. Olomu (1987) 3 NWLR (Pt. 59) 111, it was held that a denial of the right to address is denial of fair hearing.

Section 36(4) of the CFRN provides thus:

“whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal:”

The Supreme Court in Effiom v. The State (1995) 1 NWLR (Pt. 373) 507 at 575, prescribed the essential elements of fair hearing as follows:

1.      Easy access to court;

2.      Right to be heard;

3.      Impartiality of the adjudicating process;

4.      Principles of nemo judex in cuasa sua; and

5.      Whether there is inordinate delay in delivering judgment.

However, the right to fair hearing had ab antique, that is, from old times been considered as part of the rules of natural justice. The Romans put the right in two maxims namely audi alteram partem (hear the other party); and nemo judex in causa sua (no one should be a judge in his own case).

AUDI ALTERAM PARTEM

By this maxim, it means ‘hear the other party’. No one shall be condemned unheard.

Per Justice Oputa in “Human Right in a Political and Legal Culture” page 99 stated thus:

            “The Almighty God gave us two ears so that we may hear both sides.”

In R. v. University of Cambridge (1723) 1 st 557, where Dr. Bentley was deprived of his Master of Arts Decgree without notice of hearing. Justice Fortuscue related the incident to the case in the Garden of Eden in the Bible. Before God condemned Adam and eve, He gave them a fair hearing to rebut the allegation of divine obedience.

In Federal College of Education v. Anyanwu (1997) 4 NWLR (Pt. 501) 536, the Court of Appeal held that where the Committee heard the respondent, the appellant after the inquiry issued a query to the respondents which he replied, after which the respondents appointment was terminated, the committee complied substantially with the rules of natural justice and the principles of fair hearing.

However, a court of law can convict an accused person who chooses to say nothing in his defence – section 287 of the Criminal Procedure Act (CPA).

Consequently, the law only requires that the accused person be given the opportunity to state his case. If the accused person fails, refuses or neglects to state his case, he cannot claim that his right to fair hearing has been violated – R v. University of Cambridge (supra) S 128.

NEMO JUDEX IN CAUSA SUA

By this maxim, it means ‘no one should be a judge in his own case’. That is, a judge must not have any personal interest in the case before him. Thus, he must not be biased.

In Chief Gani Fawehinmi v. Legal Practitioners Disciplinary Committee (1982) 2 NCLR 719, it was held that the right to fair hearing under section 33(1) of the 1979 Constitution [now section 36(1) of the 1999 constitution] was breached. The Attorney-General of the Federation, as Chairman of Legal Practitioners’ Disciplinary Committee was not competent to sit as such when he was a complainant in allegations by him against Chief Fawehinmi.

It is a trite law that once there is a breach of fair hearing, the whole proceedings in the course of which the breach occurred, and the decision arrived at by the court become a nullity – ANPP v. INEC (2004) 7 NWLR (Pt. 871) 16 CA; APP v. Ogunsola (2002) 5 NWLR (Pt. 761) 484 CA.

A man is said to be a judge in his own case when he is likely to be biased in favour of or against either for reasons of interest or favour. In other words, if he has either pecuniary or proprietary interest in the subject matter in litigation, or, because of his relationship with either of the parties, he is likely to be biased in favour of or against him, then he ought not to be the judge.

The right of address by counsel is an important aspect of the right of fair hearing and is given before judgment. When this is not given, any decision arrived at amounts to denial of fair hearing rendering the proceedings null and void – Ihom v. Gaji (1997) 6 NWLR (Pt. 509) 526 at 527 – 528 SC.

A fair hearing connotes or involves a fair trial and a fair trial of a case consists of the whole hearing. There is no difference between the two. The right to counsel is at the root of fair hearing and its necessary foundation – Ogboh v. F. R. N (2002) 10 NWLR (Pt. 774) 21 SC.

To constitute fair hearing, whether before the regular courts or before tribunals and boards of inquiry, a person accused of a crime should – (a) know what is alleged against him; (b) be present when every evidence against him is tendered; and (c) be given a fair opportunity to correct or contradict such evidence – Adeniran v. NEPA (2002) 14 NWLR (Pt. 786) 30 CA.

PRESUMPTION OF INNOCENCE

The Blacks Law Dictionary defines presumption of innocence as:

“A hallowed principle of criminal law to the effect that the Government has the burden of proving every element of a crime beyond reasonable doubt and that the defendant has no burden to prove his innocence.”

However, section 36(5) of the 1999 CFRN provides thus:

“Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.”

Provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.

In other words, an accused is presumed to be innocent. But the State may make a law imposing the burden of proof on him. In Adebayo v. The State (1991) 3 NWLR (Pt. 195) 1 SC, where the appellant was charged with murder and discharged after a no case submission but convicted of manslaughter, the Supreme Court held that the lesser offence charge was a nullity. Per Karibi-Whyte, J. S. C held:

“Under the constitution, there is no onus on an accused person to establish his innocence. Hence, where at the close of the case of the prosecution, no case has been made out against the accused, asking him to answer the charge connected with the offence with which he has been discharged, it is a reversal of the constitutional presumption of innocence by asking him to establish his innocence. No court has such a jurisdiction. Consequently, every proceeding subsequent to the violation of the provisions of section 33(5) [now 36(5) of the 1999 constitution] of the constitution is void having been conducted without competence. It follows that the conviction of the Appellant for manslaughter is void and of no effect.”

However, it is the duty of the prosecution who alleges that the accused person committed the offence to prove it beyond reasonable doubt – Okoro v. The State (1988) 12 SCNJ 19; (1988) NWLR (Pt. 74) 255, where the court held that since the prosecution had failed to establish that nay of the accused persons unlawfully caused the death of the deceased, there was no case against any of the accused persons; and that to ask the first accused person to defend himself was to ask him to prove his innocence, which is contrary to the presumption of innocence enshrined in the constitution.

Also in Uso v. C. O. P (1972) 11 SC 37, the Supreme Court held that it is the duty of the prosecution to prove the guilty of the accused person and not that of the judge or any other person.

It should however be noted that section 141(3)(c) of the Evidence Act places the burden of proving insanity or facts within the knowledge of the accused person on him which is consistent with the proviso of section 36(5) of the 1999 CFRN.

RIGHT TO ADEQUATE TIME AND FACILITIES FOR DEFENCE

Under section 36(6)(b) of the 1999 CFRN, every person who is charged with a criminal offence is entitled to “be given adequate time and facilities for the preparation of his defence”. Whether an accused had been adequate time and facilities to prepare his defence as provided in this section is a question of fact – Police v. Lt. Okafor (1964) 2 All NLR 166. A person standing trial is entitled to defend himself and avail himself of all facilities provided by the law – Indrisa v. The State (1968) NMLR 88.

Complaints as to violation of this provision have mostly arisen where a trial judge or magistrate refused an application for an adjournment by the accused for the purpose of calling certain witnesses. The accused person has a right to apply for subpoena to be issued to his prospective witnesses in the case of a High Court trial. He may also apply for a witness summons under section 186 of the Criminal Procedure Act. Even where this application has been made, the court is not necessarily bound to adjourn in order to enable the witness to attend. Therefore, application for the issue of subpoena or witness summons ought to be made in time.

The constitutional provision in section 36(6)(b) does not curtail the normal discretion of the court to grant or refuse adjournment provided the discretion is exercised judicially – Police v. Okafor (supra). Thus, in Omega v. The State (supra), where during the trial the accused had plenty of time to summon his witnesses but did not do so, the refusal of the trial judge to grant him an adjournment at the close of the prosecution’s case in order to call his witnesses was held to be right and not contrary to section 36(6)(b). In Udo v. The State (1988) 3 NWLR (Pt. 82) 316; (1988) 1 NSCC 1163, the court held that in the trial of all capital offences, if an accused person applies for an adjournment in order to secure the services of a defence counsel or due to the absence of his defence counsel, the court must grant the application.

In Ortese Yanor & Anor. v. The State (1965) 1 All NLR 193, the Supreme Court held that a defendant who asks for an adjournment because his witness is absent should normally satisfy the trial court that the witness is material to the evidence, that he (the defendant), has not been guilty of neglect in procuring the witness to attend, and that there is reasonable expectation that he can procure his attendance for a certain date.

An adjournment is granted at the discretion of the court when there is cogent and compelling reason to do so. Such reasons are –

1.      When the prosecution applies for an adjournment in order to call witnesses;

2.      When the defence counsel applies for an adjournment in order to call witnesses; and

3.      At the will of the court, especially on the days that the court fails to sit.

RIGHT TO DEFEND BY COUNSEL

This is the right of the accused person to defend himself in person or by legal practitioners of his own choice.

Section 36(6)(c) provides that a person charged with a criminal offence is entitled to defend himself in person or by legal practitioners of his own choice. However, section 390 of the Criminal Code, and section 28 of the Area Court Edict 1967 appears to be in conflict with section 36(6)(c), since counsels are not admitted to native court. It provides that no legal practitioner shall be permitted to act for or assist any party before a native court. The validity of section 390 came for decision in Peter Uzodima v. C. O. P (1982) 3 NCLR 325, where the appellant was accused, tried and convicted of stealing by an Area Court which refused to allow him counsel to defend him, ostensibly because section 390 of the CPC denies a right of audience to lawyers. On appeal, the appellant alleged a breach of his fundamental rights under the constitution. The court held that section 33(6)(c) of the 1979 constitution [now section 36(6)(c) of the 1999 constitution] is intended to do away with any law or rules which denied representation by counsel in criminal prosecution. Thus section 390 of the CPC is in conflict with section 33(6)(c) of the constitution and is therefore null and void.

The scope of the right of choice of counsel provided for by section 36(6)(c) has to be considered. In Awolowo v. Sarki & Anor (1966) 1 All NLR 178, the plaintiff, who was an accused person in a criminal case, engaged for his defence a counsel from England – a person who was enrolled as a legal practitioner in Nigeria, the Federal Minister of Internal Affairs prohibited his entry into the country under section 13 of the Immigration Act. The plaintiff sued for a declaration that the prohibition was ultra vires and unconstitutional is as much as it violated the right of choice of a counsel given to him as an accused person by section 21(5)(c) of the 1963 constitution [now 36(6)(c) of 1999 constitution]. The Supreme Court upholding the dismissal of the action by the High Court held that section 21(5)(c) could not be read in isolation and that the right it conferred on the accused to a counsel of his own choice might be curtailed for various reasons, for example, the counsel of his choice might be under lawful detention and the like. It further held that sections 20(1)(f) and 26(1) of the 1960 constitution necessarily implied that a person who was not a citizen of Nigeria might be refused entry in accordance with the legislation in force. Therefore there was nothing unconstitutional in the absolute discretion conferred by the Immigration Act upon the Minister to refuse the entry of a person who was not a citizen of Nigeria according to section 26(1) of the 1960 constitution.

An accused person who appears in court without a counsel is entitled to be informed by a court of his right to defend himself personally or through a counsel of his choice. However, a High Court may in a trial of a capital offence, assign a counsel to an accused person who is not defended by one – section 352 of the CPA. If an accused has a counsel assigned to him in this way, he may object to his being defended by the particular counsel by virtue of section 36(6)(c) of the constitution – Ezea v. The Queen (1963) 1 All NLR 245. If he has made an arrangement for his own counsel, he should not accept a counsel assigned to him by the court, otherwise, he cannot afterwards complain that he had not been allowed to have the counsel of his choice.

RIGHT TO EXAMINE WITNESSES CALLED BY THE PROSECUTION

This right is available under the provisions of section 36(6)(d) of the 1999 CFRN which provides thus:

            “Every person who is charged offence shall be entitled to –

(d) examine, in person or by his legal practitioners, the witnesses called by the prosecution before any court or tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court or tribunal on the same conditions as those applying to the witnesses called by the prosecution.”

The above provisions means that the accused person may call witnesses in his defence; and cross-examine the witnesses called by the prosecution personally or through his counsel.

In this section, the constitution substantially assimilates the principles laid down in a number of sections of the Criminal procedure Act (e.g. sections 186, 196, 211(1), 285(5), 358 and 359). The provision is a basic prerequisite for a fair trial. In Tulu v. Bauchi Native Authority (1965) NMLR 343, the trial court did not allow the accused to examine each prosecution witness (the trial was in the native court where legal presentation was not available) as they gave evidence, but merely itself asked the witnesses a lot of questions. It was held by the Supreme Court that section 36(6)(d) of the Constitution was not observed in respect of each of the prosecution’s witnesses. The appeal in the case was allowed and conviction and sentence quashed on this ground among others. Thus, it was held by the Supreme Court that this was in contravention of the accused person’s right to cross-examine prosecution witnesses.

Quite apart from the provision of this section, it is recognized by the courts as a fundamental rule of natural justice that a defendant and his witnesses should be heard before the case against him is determined and also that to refuse to hear his witness is a denial of justice – Mallam Sadua of Kunya v. Abdul Kadir of Fagge (1956) 1 FSC 39. The Supreme Court had also, in a number of cases, regarded as erroneous, a refusal to have a prosecution’s witness recalled or called for cross-examination at the instance of the defence – Idirisu v. The State (1968) NMLR 88; Otujale & Ors. v. The State (1968) NMLR 261; Juwa v. The State (1969) NMLR 168.

In Idirisu v. The State (1967) 1 All NLR 32, the Supreme Court held inter alia that:

“Whenever an accused person makes an application for the maker of a statement to be called as witness, such as is now in point, such application should not be lightly refused.”

RIGHT TO AN INTERPRETER

This is the provision in the constitution that ensures that an accused person understands whatever that it said at the trial including the evidence adduced.

By section 36(6)(e) of the 1999 constitution, an accused person is entitled to have, without payment, the assistance of an interpreter if he cannot understand the language used at the trial of the offence.

This section requires that there should be adequate interpretation to the accused person of anything said in a language which he does not understand, and equally that there should be adequate interpretation to the court of anything said by the accused in a language which the court does not understand. In Ajayi & Another v. Zaria Native Authority (1963) 1 All NLR 169, two of the interpreters used in the trial were found incompetent to interpret satisfactorily. The conviction of the accused persons was set aside by the Supreme Court on ground that the right conferred on them by section 33(6)(e) of the 1979 constitution [now section 36(6)(e) of the 1999 constitution] was not fully accorded them in that trial; Customs & Excise v. Alhaji Garba Katsina and Another (1973) 1 NMLR 179.

Where a witness is giving evidence in a language not understood by the accused person, and no interpretation into a language understood by the accused is being made for the benefit of the court an interpreter should stand near the accused person and tell him what the witness is saying. This practice should be invariably followed where the accused person is represented or not represented by counsel unless he personally expresses a wish to dispense with the translation and the court considers that the interest of justice will not be prejudiced by such a course – The Queen v. Eguabor (1962) 1 All NLR 287; Lockman and Another v. The State (1972) 1 All NLR (Pt. 2) 62 at 65 – 66. The judge or magistrate should however not grant such a wish unless he is of the opinion that the accused substantially understands the case he has to meet. Also, the wish to dispense with the interpretation should be personally expressed by the accused person and not by his counsel.

The accused cannot complain that his right has been denied if he understands the language used at his trial which is not in English – Durwode v. The State (2000) 15 NWLR 467 at 482 – 484.

However, where only the judge and counsel understands the language used by the witness, the language has to be translated into the language of the accused person – Msughnado v. The State (1980) 2 NCR 23.

The interpreter must be accurate and comprehensive in his interpretation to the accused. In Zaria Native Court v. Bakari (1964) NNLR 25 at 29, the court held that:

“An interpreter should interpret whatever is said immediately it is said, sentence by sentence, he should not wait till everything has been said, and then state what he remembers of it or what he thinks it was, but should interpret the whole and every part of it”

The court must ensure that the interpreter does not have any relationship with the parties or to the connection of the case – R. v. Ogucha (1959) 4 FSC 64.

Section 242(1) of the CPC requires that an interpreter used in any proceedings must be bound by oath or solemn affirmation. The record of proceedings must also state the following –

1.      The name of the interpreter;

2.      The language which he interprets and in which he interprets; and

3.      The fact that he has been sworn or affirmed to state the true interpretation of the proceedings.

It is a question of fact whether the accused person understands the language used in the proceedings or not – Anyanwu v. The State (2002) 13 NWLR (Pt. 783) 107.

If the accused person’s counsel improperly discloses instructions given to him and the disclosures are possibly prejudicial to the defence being put forward and the counsel then abstains from cross-examining on the issue involved, the trial court is bound to explain to the accused what has happened and what his rights are in the circumstances.

It should be noted that the right to an interpreter only arises if the accused person cannot understand the language used at the proceedings of the case. This is why it is the duty of the accused person or his counsel, to bring to the notice of the fact that he does not understand the language in which the trial is being conducted. Unless he does, it will be assumed that he has no cause for complaint and the question of violation of his right to an interpreter will not arise – The State v. Salihu Mohammed Gwonto and 4 others (1983) 3 SC 62 at 88.

Thus, where a counsel is representing an accused person, and neither the counsel nor the accused person claims the right to the use of an interpreter, the right is lost for all time and cannot be invoked on appeal.

Where the issue whether interpretation at the trial court arises on appeal, and there is challenge of the verdict of the lower court on that ground or on the ground of incomplete or incompetent interpretation and consequent failure of justice, the court of appeal ought to take fresh evidence to determine what really transpired at the lower court. This, the court can properly do under section 131 of the Evidence Act since there would be illegality if in fact the proceedings in the lower court were not interpreted to the accused in a language he understands.

The burden of establishing affirmatively that the right of interpretation was denied and that there was therefore failure of justice lies on the accused person – The State v. Gwonto and 4 Others (1983) 3 SC 62; Lockman and Another v. The State (supra). Therefore, the accused person has to supply the necessary evidence. click on any link on both sides of this blog for more insght

Barr, Ezekiel chigozie has many years experience in providing legal representation and advising clients across an exceptionally broad range of contentious and non-contentious matters. His main goal is to help clients resolve any contentious or non-contentious legal problem they are having rapidly and cost effectively.

Email: victorezekielc@gmail.com

Tel: +2348034997413