By Funmilola Adeniran Esq.

WHETHER A COUNSEL CAN RIGHTLY APPLY TO COURT REJECTING THE CALL TO EMBARK UPON THE CROSS EXAMINATION OF A WITNESS WHO TESTIFIED IN HIS ABSENCE, AND WHETHER FAILURE TO GRANT SAME WOULD AMOUNT TO FUNDAMENTAL BREACH OF RIGHT TO FAIRHEARING, AN INSIGHT INTO THE SUPREME COURT DECISION IN THE CASE OF EMEKA OFFOR V. C.O.P RIVERS STATE AND ORS (2022) 9 N.W.L.R PT 1835, PG 241. BY FUNMILOLA, ADENIRAN ESQ.
NOTABLE PRONOUNCEMENT BY Per EKO, J.S.C; On need to eschew arrogance on the bench (Summary Fact of the case).

“On 12th July, 2004, the Chief Magistrate of Port Harcourt, River State, came very late to Court after 11:00 a.m. He offered no apologies for this unwholesome conduct. He sent no words, previously, to his court clerk and staff and of course the litigant and their respective counsel, that he was going to be late for whatever the reason. Convinced that he was no longer going to come to court the Police prosecutor, the counsel holding watching brief and the defence/appellant’s counsel agreed with the court clerk that another date be taken The clerk adjourned the matter to 19th August, 2004. All counsel for respective defendants and the complainant dispersed. The prosecutor, the 1st accused and the appellant lingered. The learned Chief Magistrate surfaced after 11:00a.m. and after the parties, including the appellants’ counsel, except the prosecutor had dispersed and left the court premises. The learned Chief Magistrate, behaving in a manner of an imperial Majesty – he that must be obeyed, entered the court room to commence proceedings. He would not listen to any entreaties that this particular matter had been adjourned and the parties’ dispersed. The counsel to 2nd – 4th accused persons had left the court. Only the prosecutor and the counsel to the 1st accused were present. To stamp his authority the learned Chief Magistrate insisted on and took evidence-in-chief of the PW.1. He adjourned the cross-examination of PW.1 to 18th August, 2004 not even 19th August 2004 which his Clerk had earlier given to the parties. Not done: at the prompting of the same Police Prosecutor (who had earlier agreed to the adjournment to 19th August 2004, and who also was aware that the 2nd – 4th accused persons and their counsel left the court) that the 1st accused and the PW.1 be bound over to keep the peace; the Chief Magistrate obliged and accordingly made the order as prayed. This is only a comic reminder of the “Ichoku’s court” in NTA popular soap opera. Sadly, the High Court and the lower Court allowed and endorsed the apparent travesty of justice”.

RELEVANT PRINCIPLES:
“The appellant’s right to fair hearing had been breached by the manner of proceeding adopted by the Chief Magistrate. The two Courts below were wrong to have held on the contrary. The primary proceeding of the Chief Magistrate had violated the right to fair hearing guaranteed to the appellant by section 36(6) of the 1999 Constitution as amended”.

By virtue of section 36(6) (c) of the 1999 Constitution (as amended), every person charged with a criminal offence shall be entitled to defend himself in person or by a legal practitioner of his own choice.

By virtue of section 36(6) (d) of the 1999 Constitution (as amended), every person charged with a criminal offence shall be entitled to examine in person or by his legal practitioner, the witness 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.
In a non-capital offence, proceedings in the absence of counsel may not have a fatal effect. However there are exception just as in the instant case, where the absence of counsel was clearly in order, and a constitutional breach to fair hearing took place, the defence counsel was right to reject the call to embark upon the cross-examination of a witness who had testified in his absence.

In any criminal trial, the calling of a witness and the adducing of any evidence in the absence of the counsel to an accused person being tried is a serious irregularity that renders the trial a nullity. PER PETER-ODILI J.S.C. stated that “I agree with learned counsel for the appellant that the absence of appellant’s counsel at the Magistrate Court after 11:00 a.m. when the leaned Chief Magistrate arrived at the court and commence trial of the appellant was not a harmless omission as the High Court and Court of Appeal held but rather a fundamental omission in the trial of the appellant at the magistrate court”

Where the principles of natural justice are violated in any decision, it is immaterial that the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The principle of fair hearing is fundamental to all court procedures and proceedings and like jurisdiction, the right to fair hearing is both fundamental and constitutional right of every party to a dispute who is to be afforded an opportunity to present his case to the adjudicating authority without hindrance from beginning to end.

Factors vital in the determination of the question, whether there has been fair hearing or not are:
a. Has the person to be affected by the outcome of the case been present all through the proceedings to hear all evidence against him?
b. Has he been given the right to cross examine witnesses who gave evidence against him?
c. Has he been granted access to and the opportunity to read all the documents tendered in evidence at the hearing of the case?
d. Has he been given the opportunity to know the case he has to meet at the hearing and to adequately prepare for his defence?

The test of measuring fairness of a proceeding in the High Court or Court of first instance is different from that of the appellate court. The test at the court of first instance is the impression of any reasonable person who was present at the trial. In the appellate court, the test is whether having regard to the rules of court and the law, justice has been done to the parties.

Funmilola Adeniran Esq.
FCT Abuja,
09032324439.