CONSTITUTIONAL LAW – RIGHT TO FAIR HEARING – Principles of fair hearing; whether a party who had an opportunity to be heard but did not utilize it can bring an action for breach of fair hearing

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“The term, fair hearing, is a recurring decimal in criminal cases because, it is a fundamental right guaranteed to citizens under the Constitution, and a breach of which will nullify the proceedings in favour of a victim, therefore, it is very easy for lawyers and litigants alike to come crying to an appellate Court that their right to fair hearing has been violated. But “fair hearing” is not just an expression of mere rhetoric or empty verbalism; it cannot be construed outside the facts, and a Party alleging the breach must show clearly that the said right is violated or breached – see Gbadamosi V. Dairo (2007) 3 NWLR (Pt. 1021) 282 SC. In other words, it is not enough for a Party alleging such a breach to merely mention fair hearing, and expect this Court to automatically side with him and determine the case in his favour; just for the asking. The facts of his case must show that the said right was indeed violated. But more often than not, the cry of lack of fair hearing is misleading, as this Court made very clear in Adebayo V. A.-G., Ogun State (supra). In this case, the Appellant’s cry is that his right to cross-examine the said PW1, which “is within the rubric of his right to fair hearing”, was foreclosed by the trial Court, and this denial of fair hearing to him, occasioned miscarriage of justice. As the Appellant put it in his Brief – The rule of audi alteram partem postulates that the trial Judge must hear both sides at every material stage of the proceedings before handing down a decision. The learned trial Judge did not give [him] the opportunity of cross-examining the sole Witness of the Respondent. The denial of fair hearing to [him] in this case is incurably fatal to the Judgment of the trial Court. The Judgment is bound to be set aside. It is irrelevant whether or not the Judgment of the trial Judge made subsequently is correct as the proceedings leading to the Judgment are null and void. Evidently, the Appellant’s allegation is that the trial Court did not give him the opportunity to cross-examine the said PW1, is that correct? As the Respondent pointed out, he was represented by counsel, and it is not as if PW1 was not available or unwilling to be cross-examined. PW1 was in Court on 31/10/2012, but Appellant’s counsel said he had “a medical problem”, and could not cross-examine PW1 on that day. The Record also shows that the PW1 was in Court on 31/1/2013, but the Appellant’s counsel was not, and that is when the trial Court warned that if Appellant’s counsel was not in Court to cross-examine PW1 on the next adjourned date, 6/3/2013, PW1 will be discharged. PW1 was in Court on 6/3/2013, but the Appellant’s counsel was not, and that is when the trial Court granted the Prosecution’s application “to foreclose the right of cross-examination by the [Defence] counsel.” But in granting the said Application, the trial Court made it clear that: The Court has given more than enough opportunity to the Defendant Counsel (sic) to cross-examine PW1, the only Witness for the Prosecution, yet the Defendant Counsel (sic) did not make use of the opportunity. The word “opportunity” means “a time or set of circumstances that makes it possible to do something”- see LEXICO powered by OXFORD. Can the Appellant seriously say that he was not given the opportunity to cross-examine PW1, who was always in Court, each time the matter was adjourned to enable the Appellant’s counsel cross-examine him? The trial Court granted the adjournments to enable his counsel cross-examine PW1, who also made himself available to be cross-examined, but Appellant’s counsel failed to take advantage of the opportunity. Even so, the Appellant had another opportunity opened to him, when he changed his recalcitrant counsel. On 30/4/2013, another Defence Counsel appeared for the Appellant. She informed the Court that their office had just been briefed, and that she had been trying to get the processes from the former Counsel to continue with the trial. She therefore asked and was granted an adjournment till 14/5/2013. On 14/5/2013, the new Counsel announced her appearance and said, “the matter is for defence, we are ready to go on”; and that was that. There was no mention of re-opening the Prosecution’s case, and no application was made to have PW1 recalled for cross-examination. Yes, the Appellant is right that cross-examination of witnesses of the adverse Party, is a constitutional right of a Party to fair hearing, which is guaranteed in Section 36(1) of the 1999 Constitution (as amended), and it is a right that cannot be taken away from Parties in litigation – see Ogolo V. Fubara (2003) 11 NWLR (Pt. 831)237. To this end, it is the duty of the Court to ensure that every Party before it is afforded an opportunity to cross-examine the Witness(es) of the adverse Party. In this case, the Court of Appeal acknowledged these principles; relying upon Simon V. State (2017) LPELR-41988(SC), it observed that: It is a constitutional right of a Defendant to be allowed to cross-examine a witness called by the Prosecution. And any breach is a breach of the right of fair hearing and it can have a disastrous effect on the judgment. In the case of Okereke & Anor V. lbe & Ors (2008) LPELR-4714 (CA) the Court held – – – see Fulani V. Rafawa & Ors (2013) LPELR-20384(CA). It is fundamental that an opportunity is given for cross-examination because it is the constitutional right of on Accused Person to be given the opportunity to cross-examine Witnesses called by the Prosecution. But there are exceptions to every rule, and the Court of Appeal added: However, where such an opportunity has been given and the Party fails to cross-examine, then the Courts cannot be blamed – – – Circumstances where a Party cannot be heard to complain of being denied the right to fair hearing were stated by the Apex Court as follows: “l said it in the past and will say it again that the duty of the Court, trial and appellate, is to create the atmosphere or environment for a fair hearing of a case, but it is not the duty of the Court to make sure that a Party takes advantage of the atmosphere or environment by involving himself in the fair hearing of the case. A Party, who refuses or fails to take advantage of the fair hearing process, created by the Court, cannot turn around to accuse the Court of denying him fair hearing. This is not fair to the Court, and counsel must not instigate his client to accuse the Court of denying him fair hearing. After all, there is the adage that the best the owner of the horse can do, is to take the horse to the water, he cannot force it to drink the water. The horse has to do that by itself and by the act of sipping. If the horse is unwilling to sip, that ends the matter. The horse will not blame anybody for death arising for lack of water or hydrate (sic)”. Per Tobi, JSC, in Inakoju & Ors v. Adeleke (2007) LPELR-1510(SC) Cross-examination is to test the correctness of the testimony of the Plaintiff and his Witnesses, while re-examination is another chance to clarify facts but not an opportunity to restate the testimony given in evidence in chief all over again. If the basic requirement in attaining fair hearing is to create and give opportunity to Parties, as observed, and a Party fails to use that window, he cannot turn to complain, this was eloquently stated by the erudite jurist, Tobi, JSC in the case of Inakoju. So, what side of the divide does the Appellant’s case fall into? He cited a number of authorities, Iwuoha V. Okoroike (supra), Tewogbade V. Agbabiaka (supra), and P.H.M.B. V. Edosa (supra), to buttress his case that the foreclosure by the trial Court of his right to cross-examine the said PW1, was a violation or breach of his right to fair hearing, and the effect thereof, is that the trial is vitiated, and is rendered null and void. I have scrutinized those cases and I do not see how they help his case. In Iwuoha V. Okoroike (supra), the Appellant filed an application to amend his Statement of Defence, which Application was dismissed by the trial Court, on a date that the Appellant’s counsel was absent, without granting Appellant’s Application to enable his counsel appear. The matter came up again, and the Counsel applied to withdraw the Application to amend the Statement of Defence, which was granted. Whereupon, the trial Court called on the Respondent to give evidence, and it refused to allow the said Defence Counsel to cross-examine the Respondent on any point other than that on the issue of damages. The Respondent got Judgment in his favour. The Appellant appealed, and in allowing the Appeal, the Court of Appeal observed as follows: The averring question germane to this Appeal is whether there was a fair hearing in the Court below. A careful perusal of the Record of proceedings including the short judgment of three pages, reveals that although the Appellant was present through out the proceedings, he neither gave nor called evidence, nor did his Counsel address the Court. This, according to the Appellant, was due to the manner in which the learned trial judge conducted the case, which includes making statements prejudicial to the Appellant’s case, pontificating on the conduct of the defence thereby muzzling the Defence Counsel from adequately presenting the Appellant’s case and also refusing Applications for adjournments at the instance of the Appellant. In Tewogbade V. Agbabiaka (supra), Respondent’s counsel objected to his being cross-examined because the Statement of Defence, which had been struck out, is non-existent in law. The Court of Appeal held: It does not matter that the opposite party – – has not filed a Statement of Defence or he does not have one, which is validly before the Court. To deny such a Party, the right to cross-examine is to deny him the right to a fair hearing guaranteed by Section 33(1) of the [1979) Constitution (i.e. Section 36(1) of the 1999 Constitution). In the last case cited by the Appellant, that is PHMB V. Edosa (supra), the Respondent, a catering officer in the service of the Appellant, was accused of stealing fresh tomatoes, and two tins of Pronto beverage. 13 Witnesses testified against her at the Disciplinary Committee, and there was no indication that she was allowed to cross-examine them. The trial Court dismissed her action challenging the termination of her appointment with the Appellant. But the Court of Appeal allowed her appeal on the ground that not giving her opportunity to cross-examine the said Witnesses, was a violation of the audi alteram partem rule, and in dismissing the Appellant’s Appeal, this Court stated as follows: The allegation of theft is a very serious allegation and before finding a person guilty of such an offence, save where the person accused voluntarily confessed to the allegation, he or she should be given a chance to make a defence and cross-examine witnesses called to prove the allegation, as in this close. In this case, the Respondent was not allowed to cross-examine witnesses, who were heard by the Committee, as the record had shown. This means that the whole proceedings was unfair and unjust and grossly in contravention of the rules of fair hearing contrary to the provisions of Section 33 of the 1979 Constitution. Quite frankly, I do not see how the factual situations in the three cases, can be helpful to the Appellant, since his case is easily distinguishable. Yes, the Prosecution called only one Witness, but it is not obliged to call more than one Witness, if it chooses not to – Oduneye V. State (2001) 2 NWLR (Pt. 697) 311 SC. PW1 testified that the Appellant and two other Defendants, were transferred from FESTAC Division at state C.I.D, to Anti Robbery Annex, lkeja, where he was stationed; and that he re-arrested them, and they volunteered their Statements to him. The trial Court conducted a trial within trial as the Appellant had objected to the admissibility of his own Statement in evidence on the ground that he was tortured to make the said Statement to the Police. PW1 testified at the trial within trial, and he was cross-examined by the Appellant’s counsel. In its Ruling, the trial Court held as follows: PW1 narrated how he cautioned the 2nd Defendant (Appellant) and the 2nd Defendant appended his signature to the words of caution. There is no evidence before the Court by the 2nd Defendant that he was hung, beating (sic) before appending his signature to the words of caution. Neither is there any evidence from 2nd Defendant that he was forced to sign twice as indicated in the Statement sought to be tendered by the Prosecution. PW discovered that the Statement of DW1 (Appellant) was confessional, and took DW1 before a superior Police Officer, Spol Ogunwole ASP, whose endorsement Form is TWT1. The 2nd Defendant endorsed TWT1, and did not complain of beating with cutlass or hung. DW2 and DW3 are not Witnesses of truth as they were not present when the Statement of the 2nd Defendant was taken, but DW3 testified that he saw PW1 hung (sic) DW1 for 2 days, I do not accept their evidence. DW3’s evidence contradicts evidence of the 2nd Defendant that he was hung for 1 1/2 hours – – – The 2nd Defendant failed to prove torture or that he was forced to give his Statement. I have, therefore, come to the conclusion that the Prosecution has proved that 2nd Defendant’s Statement made to PW1 (TWT) Cpl. Friday Ojiemen was voluntarily made. In the result, the Statement of the 2nd Defendant sought to be tendered, made on 31/12/2006, is hereby admitted as Exhibit P2. So, PW1 was cross-examined by Appellant’s counsel at the trial within trial, but the law says that a trial within trial is a separate and distinct proceeding from the main trial, therefore, evidence adduced therein, “cannot be transplanted, injected or imported into the main trial” – see Ifaramoye V. State (2017) LPELR-42031(SC). Thus, whatever PW1 said at the trial within trial, in evidence in chief or cross-examination, stays there and cannot be used, in any way or form, in the main trial. However, the confessional Statement made by the Appellant to the Police, which was admitted in evidence after the trial within trial, is a different matter altogether. It can be said to have crashed through the barrier between those two proceedings, and lawfully transported from the trial within trial to the main trial, where it entrenched itself, as part and parcel of the case for the Prosecution, which is what it is – see Egboghonome V. State (1993) 7 NWLR (Pt.306) 383 SC. In effect, the fact that PW1 was not cross-examined in the main trial, does not destroy the Appellant’s Confessional Statement admitted in evidence. Be that as it may, the Appellant has argued in the alternative that the failure to cross-examine PW1 was a mistake of counsel, therefore, he cannot be held responsible or punished for a mistake of his counsel. But the truth of the matter is that the Appellant was represented by counsel, two of them in fact. The first counsel, the recalcitrant one, failed, refused or neglected to attend Court to cross-examine PW1, who was always in Court each time, and ready to be cross-examined; opportunities were there but the first counsel chose to waste them. The second counsel, who had opportunity to correct the wrong, with a simple Application to recall the said PW1 for cross-examination, chose not to do so, and elected to proceed with the defence instead. It may well be that she saw no reason to recall PW1 for that purpose, but that thought belongs in the realm of speculation, and it is settled that neither the Parties nor the Court itself can indulge in speculation – Ikenta Best Ltd. V. Rivers State (2008)6 NWLR (Pt. 1084) 612 SC. Speculation aside, I hold the strong view that the Court of Appeal was absolutely right to affirm the decision of the trial Court since the Appellant was given opportunity to cross-examine PW1 but failed to. The trial Court created the atmosphere for the fair hearing of the case, but he failed to take advantage of the opportunities provided to do so. So, he cannot accuse the trial Court of denying him a fair hearing or find fault with Court of Appeal for affirming the trial Court’s decision.” Per. AUGIE, J.S.C. in FEMI AYOADE v. THE STATE (2020-LCER-39149-SC) (Pp.14 – 27).

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