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
12th 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 picture at right hand or left hand side for more insight.
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