BIO v. STATE (2020)

BIO v. STATE

(2020) LCN/4922(SC)

In The Supreme Court

On Friday, January 10, 2020

SC.475/2017

Before Our Lordships:

Olabode Rhodes-Vivour Justice of the Supreme Court of Nigeria

Chima Centus Nweze Justice of the Supreme Court of Nigeria

Amiru Sanusi Justice of the Supreme Court of Nigeria

Ejembi Eko Justice of the Supreme Court of Nigeria

Uwani Musa Abba Aji Justice of the Supreme Court of Nigeria

Between

ISSA BIO APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

WHETHER OR NOT THE RETRACTION OF A CONFESSIONAL STATEMENT AFFECTS ITS ADMISSIBILITY

My Lords, I find no reason for disturbing the judgement of the lower Court. I entirely, endorse the view that a retraction or denial of a confessional statement (as the lower Courts found the appellant to have done) does not affect its admissibility.
This has long been settled in the very old cases of German Awip v. Queen (1957) SCNLR 39; Itule v. Queen (1961) 2 SCNLR 183; the relatively old decisions ofIkpasa v. The State (1981) 9 SC7; Akpan v. State (1992) LPELR – 381 (SC) 36, (1992) 6 NWLR (Pt.248) 439; Osakwe v. State (1994) 2 SCNJ 57, reported as In re: Osakwe (1994) 2 NWLR (Pt.326) 273; Nwangbomu v. The State (1994) 2 NWLR (Pt. 327) 380; Bature v. State (1994) 1 NWLR (Pt. 320) 267; Eragua and Ors v. The A.-G., Bendel (1994) LPELR- (SC) 30;Idowu v. State (1998) 11 NWLR (Pt. 574) 354; as well as the more recent decisions of Silas Sule v. State (2009) LPELR-3125 (SC) 28-30, G-B, (2009) 17 NWLR (Pt.1169) 33; FRN v. Iweka (2011) LPELR – 9350 (SC) 53; (2013) 3 NWLR (Pt. 1341)285; Oseni v. The State (2012) LPELR -7833 (SC) 22-23; (2012) 5NWLR (Pt.1293) 351.
What the law enjoins, in such situations, is the application of the principles which should be considered in determining whether or not to believe and act on such a confession which an accused person resiled from as enunciated in R. v. Sykes (1913) 8 C.A.R.233, 236; Kanu v. The King (1952) 14 WACA 30; The Queen v. Obiasa (1962) 1 All NLR 651; (1962) 1 SCNLR 137; Obosi v. The State (1965) NMLR 119.
Other cases include: Onochie and Ors v. The Republic (1966) NMLR 307; (1966) 1 SCNLR 204; Jafiya Kopa v. The State (1971)1 All NLR 150; Dawa v. The State (1980) 8 – 11 SC 236; Ejinima v. The State (1991) 5 LRCN 1640, 1671, (1991) 6 NWLR (Pt.200)627; Arthur Onyejekwe v. The State (1992) 4 SCNJ 1, 9; (1992) 3 NWLR (Pt. 230) 444; Aiguoreghian and Anor. v. The State (2004)3 NWLR (Pt. 860) 367; (2004) 1 SCNJ 65; (2004) 1 SC (Pt.1) 65. These are: whether there is anything outside the confession which may vindicate its veracity; whether it is corroborated in any way; whether its contents, if tested, could be true; whether the defendant had the opportunity of committing the alleged offence; whether the confession is possible and the consistency of the said confession with other facts that have been established, Osetola and Anor v. The State (2012) LPELR -9348 (SC) 32-33, G-D; (2012) 17NWLR (Pt. 1329) 251; Kareem v. F.R.N. (2002) 7 SCM 73, (No.2)(2002) 8 NWLR (Pt.770) 664; Akpan v. The State (2001) 11 SCM 66; (2001) 15 NWLR (Pt. 737) 745. PER NWEZE, J.S.C.

WHETEHR OR NOT A PARTY WHO REFUSES OR FAILS TO TAKE ADVANTAGE OF THE FAIR HEARING PROCESS CREATED BY THE COURT CAN TURN AROUND TO ACCUSE THE COURT OF DENYING HIM FAIR HEARING

My Lords, I find no reason for disturbing the flawless position of the lower Court. It cannot be gainsaid – and there are authorities in support of this – that a trial Judge can indulge a party in the judicial process for some time but not for all times. A trial Judge has the right to withdraw his indulgence at the point the fair hearing principle will be compromised, compounded or will not really be fair as it affects the opposing party.
At that stage, the trial Judge will, and rightly too for that matter, retrace his steps of indulgence and follow the path of fair hearing as it affects the opposing party, who equally yearns for it in the judicial process. At that stage, the party who is not up and doing to take advantage of the fair hearing principle put at his doorsteps by the trial Judge, cannot complain that he was denied fair hearing, Newswatch Communications Ltd. v. Atta (2006) LPELR -1986 (SC) 25; D – G; (2006) 12 NWLR (Pt.993) 144.
Thus, while it is the duty of the Court to create the atmosphere or environment for a fair hearing of a case, 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. That is not fair to the Court and counsel must not instigate his client to accuse the Court of denying him fair hearing, Chidoka v. First City Finance Co. Ltd. (2001) 2 NWLR (Pt. 697) 216, 227; Newswatch Communications Ltd. v. Atta (supra) 25; B-D. PER NWEZE, J.S.C.

CHIMA CENTUS NWEZE, J.S.C. (Delivering the Leading Judgment): At the Ayetoro Judicial Division of the High Court of Ogun State, sitting at Ilaro, the appellant in this appeal, (as accused person), was arraigned, along with Musunmola Kolawole, on a two-count charge of conspiracy to commit armed robbery contrary to Section 6 and, punishable under Section 1 of the Robbery and Firearms (Special Provisions) Act, Cap. R. 11, Laws of the Federation of Nigeria, 2004.

Sequel to his trial and conviction, the appellant appealed to the Court of Appeal (lower Court, for short): which Court dismissed his appeal, prompting his further and final appeal to this Court. He concreted two issues for the determination of his appeal. They were framed thus:
1. Whether the lower Court was right to have held that the trial Court rightly admitted exhibit DD in evidence?
2. Whether the Court below was right to have held that the trial Court did not breach the appellant’s right to fair hearing when the trial Court refused to hear the appellant’s pending application seeking the leave of the trial Court to be allowed to adopt the appellant’s final written

address?

Arguments on the Issues
Issue One
Whether the lower Court was right to have held that the trial Court rightly admitted exhibit DD in evidence?

Appellant’s Contention
At the hearing of this appeal on October 17, 2019, learned counsel for the appellant, Shuaibu Enejoh Aruwa, Esq., adopted the brief filed on July 28, 2017. On this issue, he argued that the lower Court upheld the findings of the trial Court that the appellant voluntarily made the confessional statement – exhibit DD. He referred to the lower Court’s decision on page 148 of the record to the effect that the appellant retracted his confessional statement. He cited Saidu v. The State (1982) 4 SC 41. He urged the Court to allow the appeal.

Respondent’s Contention
On his part, Emmanuel Oboh adopted the respondent’s brief deemed, properly, filed on October 17, 2019. He pointed out that the appellant’s counsel failed to draw the Court’s attention to the evidence of the Prosecution at the trial within trial, pages 49 – 53 of the record and the ruling of the trial Court, pages 54 – 56 of the record. He also, referred to the

evidence of the appellant at the trial within trial, pages 52 – 53 of the record; Onyenye v. The State (2012) 15 NWLR (Pt. 1324) 586; Oseni v. The State (2010) 2 SCNJ 215; Solola v. The State (2005) 5 SCNJ 139, (2005) 11 NWLR (Pt.937) 460; Alarape v. The State (2001) 2 SCNJ 162, (2001) 5 NWLR (Pt.705) 79; Sule v. The State (2009) MSCQS (Pt. 384) 1069, (2009) 17 NWLR (Pt.1169) 33; Ikemson v. The State (1989) 20 MSCC (Pt. 11) 471, (1989) 3 NWLR (Pt.110) 455; Princewill v. The State (1994) 6 NWLR (Pt. 353) 703.

He contended that, since the trial within trial was concerned with the question of the retraction of the appellant’s statement, (and not its voluntariness), the lower Court rightly, upheld the decision of the trial Court. He maintained that the appellant only recanted the exhibit in contradiction to asserting its involuntariness. He urged the Court to dismiss this issue.
The appellant’s counsel, as already indicated earlier adopted his reply brief deemed properly, filed on October 17, 2019.

Resolution of the Issue
The decision of the lower Court, (page 147 of the record), which prompted this issue, was the said Court’s

resolution in favour of the trial Court’s reasons on pages 55 – 56 of the record. Listen to the trial Court’s reasons in favour of the prosecution:

The learned State counsel “…submitted that when a confession is challenged on the ground that the accused persons never made a statement at all, the issue is a matter to be decided at the conclusion of the case and the confessional statements can properly be admitted when tendered by the Prosecution, that in such a case, trial within trial is not called for.
I agree with the submission of the learned state counsel that the evidence of the two accused persons during trial within trial amounts to a retraction of their confessional statements and what is expected of the Court at this stage is to admit the confessional statements and take a decision on it at the end of trial …”

On appeal before the lower Court, the Court, (that is, the lower Court), had this to say:
… A confessional statement made by an accused person does not become inadmissible merely because he retracted it at the trial. The retraction would be taken into consideration in determining the weight to be attached

thereto. Once a confessional statement is proved to have been made voluntarily and it is direct, positive, unequivocal and clearly amounts to an admission of guilt, it can still ground a conviction regardless of the fact that the maker resiled therefrom…. The retraction of exhibit DD will not affect the confessional statements once the Court is satisfied as to the truth …
(page 147 of the record)

Idowu v. State (1998) 11 NWLR (Pt. 574) 354; as well as the more recent decisions of Silas Sule v. State (2009) LPELR-3125 (SC) 28-30, G-B, (2009) 17 NWLR (Pt.1169) 33; FRN v. Iweka (2011) LPELR – 9350 (SC) 53; (2013) 3 NWLR (Pt. 1341)285; Oseni v. The State (2012) LPELR -7833 (SC) 22-23; (2012) 5NWLR (Pt.1293) 351.
What the law enjoins, in such situations, is the application of the principles which should be considered in determining whether or not to believe and act on such a confession which an accused person resiled from as enunciated in R. v. Sykes (1913) 8 C.A.R.233, 236; Kanu v. The King (1952) 14 WACA 30; The Queen v. Obiasa (1962) 1 All NLR 651; (1962) 1 SCNLR 137; Obosi v. The State (1965) NMLR 119.
Other cases include: Onochie and Ors v. The Republic (1966) NMLR 307; (1966) 1 SCNLR 204; Jafiya Kopa v. The State (1971)1 All NLR 150; Dawa v. The State (1980) 8 – 11 SC 236; Ejinima v. The State (1991) 5 LRCN 1640, 1671, (1991) 6 NWLR (Pt.200)627; Arthur Onyejekwe v. The State (1992) 4 SCNJ 1, 9; (1992) 3 NWLR (Pt. 230) 444; Aiguoreghian and Anor. v. The State (2004)3 NWLR (Pt. 860) 367; (2004) 1 SCNJ 65; (2004) 1 SC (Pt.1) 65.

These are: whether there is anything outside the confession which may vindicate its veracity; whether it is corroborated in any way; whether its contents, if tested, could be true; whether the defendant had the opportunity of committing the alleged offence; whether the confession is possible and the consistency of the said confession with other facts that have been established, Osetola and Anor v. The State (2012) LPELR -9348 (SC) 32-33, G-D; (2012) 17NWLR (Pt. 1329) 251; Kareem v. F.R.N. (2002) 7 SCM 73, (No.2)(2002) 8 NWLR (Pt.770) 664; Akpan v. The State (2001) 11 SCM 66; (2001) 15 NWLR (Pt. 737) 745.

The appellant’s counsel was, with respect, muddling up the law in his submissions: submissions which the lower Court rightly, discountenanced. I find no merit in this issue. I therefore, resolve it against the appellant and in favour of the respondent.

Issue Two
Whether the Court below was right to have held that the trial Court did not breach the appellant’s right to fair hearing when the trial Court refused to hear the appellant’s pending application seeking the leave of the trial Court to be allowed to adopt the appellants final

written address?

On this issue, the appellant’s counsel noted that, on May 20, 2014, the trial Court ordered parties to file their respective final written addresses within fourteen days. In furtherance thereof, the appellant’s counsel filed the final address on June 16, 2014 out of time. On June 18, 2014, he filed an application to regularise the said final address. He pointed out that the trial Judge refused the application: a position which was upheld by the lower Court. Relying on FAAN v. W.E.S. (Nig.) Ltd. (2011) 8 NWLR (Pt. 1249) 219, 225 he urged the Court to set aside the lower Court’s position.

Respondent’s Arguments
In reply, the respondent’s counsel cited page 62 of the record to show that, although the trial Court granted the parties twenty eight days (that is, fourteen days to either side) within which to file their addresses, at the end of this period, the appellant’s counsel was yet to comply with the said order.

In consequence of the above, the trial Court ordered the Prosecution to file its own address within seven days. It, additionally, foreclosed the right of the defence to file its

address. The defence counsel was absent from Court. He furnished no reason for his absence.

He explained that it was after the Prosecution had filed its address that the defence counsel indicated his willingness to file his address. The trial Judge discountenanced the application for the enlargement of time.

He pointed out that the lower Court affirmed the correctness of the trial Court’s decision, pages 153 – 155 of the record. In effect, it was the appellant that refused to avail himself of the opportunity of being heard. He cited Adebayo v. Attorney General of Ogun State (2008) 7 NWLR (Pt. 1085) 201. He urged the Court to dismiss the appeal on this ground.

Resolution of the Issue
Undoubtedly, what prompted this issue was the decision of the lower Court at pages 152 et seq of the record. Listen to Fasanmi, JCA, (who read the leading judgement):
The right to be heard is a two edge (sic) sword. One, the Prosecution should be heard timeously and two, the accused (person) to avail himself of the right extended to him by the Court to present his own side of the case. The trial Court discharged its duty by creating an atmosphere for

fair hearing of the case. A party who refuses or fails to take advantage of the fair hearing process created by the Court cannot turnaround to accuse the Court of denying him of fair hearing, Newswatch Communications Ltd. v. Ibrahim Attah (2006) 6 SCM 134, 138.
The learned trial Judge at page 64 of the record found as follows:
This morning, the learned defence counsel drew the attention of the Court to her application for extension of time claiming that she could not come to Court on the last adjourned date on health grounds, the Court threw it back to her that she was not ill but in another Court, she admitted that she was in a Court in Abeokuta.
Appellant’s counsel deliberately failed to avail himself of the opportunity of delivering his address. In spite of the closure of the appellant’s counsel’s address, the learned trial Judge gave consideration to the written address filed by the appellant in his judgement at page 73 of the record when he opined:
The learned defence counsel filed a written address out of time, she was not allowed to adopt it as her right to file written address had been foreclosed. I must say however

that I read through her written address for whatever it was worth, she did not raise any special defence in favour of the accused persons.
The learned trial Judge did not breach appellant’s right to fair hearing. An address is not a substitute for compelling evidence on the pages of the record. The evidence adduced at the trial of the case is overwhelming. The foreclosure of the appellant’s counsel’s address has not occasioned any miscarriage of justice. The trial Court was right to have convicted the appellant in view of the overwhelming evidence on the record …
(Pages 154 – 155 of the record; italics supplied for emphasis)
My Lords, I find no reason for disturbing the flawless position of the lower Court. It cannot be gainsaid – and there are authorities in support of this – that a trial Judge can indulge a party in the judicial process for some time but not for all times. A trial Judge has the right to withdraw his indulgence at the point the fair hearing principle will be compromised, compounded or will not really be fair as it affects the opposing party.
At that stage, the trial Judge will, and rightly too for that

matter, retrace his steps of indulgence and follow the path of fair hearing as it affects the opposing party, who equally yearns for it in the judicial process. At that stage, the party who is not up and doing to take advantage of the fair hearing principle put at his doorsteps by the trial Judge, cannot complain that he was denied fair hearing, Newswatch Communications Ltd. v. Atta (2006) LPELR -1986 (SC) 25; D – G; (2006) 12 NWLR (Pt.993) 144.
Thus, while it is the duty of the Court to create the atmosphere or environment for a fair hearing of a case, 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. That is not fair to the Court and counsel must not instigate his client to accuse the Court of denying him fair hearing, Chidoka v. First City Finance Co. Ltd. (2001) 2 NWLR (Pt. 697) 216, 227; Newswatch Communications Ltd. v. Atta (supra) 25; B-D.
From the observation of the

trial Court set out above, it is obvious that counsel for the appellant falls into the category of those who think that litigation is a matter of planting mines to deceive the opponent with a view to destroying his case undeservedly in limine, Newswatch Communications Ltd. v. Atta (supra).
My Lords, I would like this to be placed in the public domain- as this Court once did – that litigation is a process where the parties set out their cases frankly and fully for the determination of the Court. Advocacy borne out of trickery and a miserly presentation of a client’s case cannot therefore, pass for good advocacy, Tunbi v. Opawole (2000) 2 NWLR (Pt. 644) 275; Ecoconsult Ltd. v. Pancho Villa Ltd. (2000) 3 NWLR (Pt. 647) 141; Ajidahun v. Ajidahun(2000) 4 NWLR (Pt. 654) 605; Newswatch v. Attah (supra).
Perhaps, nothing could be more fitting than this advice which this Court offered a long time ago. True, indeed, as the Court said the fair hearing principle formerly entrenched in Section 33 of the 1979 Constitution, and now Section 36 of the 1999 Constitution, is not for the weakling, the indolent or the lazy litigant.
Truth told, the principle

of fair hearing is for the party who is alive and agile in the judicial process: a party who takes advantage of the principle at the appropriate time. Contrariwise, the principle is not available to a party who sets a trap in the litigation process against the Court (as the appellant’s counsel did at the trial Court) and turns around to accuse the Court of assumed wrong doing even when the so-called wrong doing was, as a matter of fact, propelled or instigated by the party, through his counsel, Newswatch Communications Ltd. v. Atta (supra). I have no hesitation in resolving this issue against the appellant.

Having resolved the two issues against the appellant. This appeal must be, and is hereby, dismissed as it has no redeeming feature. Appeal dismissed. I affirm the concurrent judgements of the lower Courts.

OLABODE RHODES-VIVOUR, J.S.C.: I have had the privilege of reading in advance the leading judgment delivered by my learned brother, Nweze, JSC. I agree with his reasoning and conclusions. The appeal lacks merit.
I accordingly dismiss it and affirm the concurrent judgments of the two Courts below.

AMIRU SANUSI, J.S.C.: I had the

advantage of reading before now the judgment just delivered by my learned brother, Chima Centus Nweze, JSC. While agreeing entirely with the reasoning and conclusion arrived at by my learned brother, Nweze, JSC that this appeal lacks substance, my attention is drawn to the complaint by the appellant that he was denied fair hearing when the trial Court refused him chance to deliver his written address.
It is clear from the record that the parties were each given 21 days to deliver its address. The prosecution filed its address timeously in fact in seven days. The defence was absent on that day for undisclosed reason.
Later, the defence (now appellant) applied for extension of time to deliver its address but was refused such extension of time by the trial Court as such he is now complaining that his right to fair hearing was breached.
My lords, please permit me to stress or emphasise that “Fair hearing” in essence, means giving equal opportunity to the parties to be heard in the litigation before the Court. Where the parties are given opportunity to be heard, any of them that abuses such opportunity for instance by not presenting his

case or by absenting himself, he cannot complain of breach of fair hearing principles. See Independent National Electoral Commission v. Alhaji Abdulkadir Balarabe Musa (2003) LPELR- 24927 (SC).
In the result, I agree that this appeal lacks merit and is accordingly dismissed by me.

EJEMBI EKO, J.S.C.: I have read the record of appeal and the briefs of argument duly exchanged by the parties in this appeal. I also read in draft the judgment just delivered by my learned brother, Chima Centus Nweze, JSC, in this appeal.

The two issues argued in the appeal are substantially issues of fact in respect of which the two Courts below rendered their concurrent opinions. The concurrent judgments are reasonable and not perverse nor do they, in anyway, occasion a miscarriage of justice to the appellant.

The fanciful violation of the appellant’s right to fair hearing, as unconvincing as it is, is mere artifice synthesised by the appellant’s counsel to foist this appeal. At the trial Court the defence counsel, one Mrs. B. Idowu Nwagwunor (SDP), had all the opportunity to present her final address. She wasted it. And it appears she did so to

delay proceedings. At page 64 lines 15 – 22 of the record of appeal the learned trial Judge had this scathing remark to deprecate her misconduct.

This morning, the learned defence counsel drew the attention of the Court to her application for extension of time claiming that she could not come to Court on the last adjourned date on health grounds, the Court threw it back to her that she was not ill but in another Court, she admitted that she was in a Court in Abeokuta. Apparently the learned counsel did not regard her duty to file written address on behalf of the accused person as a serious matter hence her non-challant attitude. This Court will not wait for an indolent counsel. The right of the learned counsel to file a written address remains fore closed.

The further disturbing conduct of the defence counsel at the trial Court is the fact she deliberately lied to the Court that she was sick. She later admitted and debunked her own lie-telling upon being confronted with the fact that she appeared in person before another Court without any courtesy to either the Court or the counsel for the prosecution. Deliberate and shameless falsehood cannot be any

basis for a Court of justice to exercise its equitable jurisdiction or grant an equitable remedy.

The lower Court read and considered the address filed out of time by the defence counsel “for whatever it was worth” (even though foreclosed) and found therefrom that no “special defence in favour of the accused persons” was therein raised. The evidence adduced at the trial Court against them was overwhelming.

I have nothing further useful to add to the judgment just delivered in the appeal by my learned brother, Chima Centus Nweze, JSC. I hereby endorse and adopt the judgment, and enter an order dismissing the appeal.
Appeal dismissed.

UWANI MUSA ABBA AJI, J.S.C.: I read in advance the draft judgment of my learned brother, Nweze, JSC, and agree fully with it that the appeal fails.

The appellant with another was charged with conspiracy to commit armed robbery and following his conviction and sentence, he appealed to the intermediate Court which dismissed same, hence this appeal. In arguing the appeal, he crafted 2 issues for determination thus:
1. Whether the lower Court was right to have held that the trial

Court rightly admitted exhibit DD in evidence?
2. Whether the Court below was right to have held that the trial Court did not breach the appellant’s right to fair hearing when the trial Court refused to hear the appellant’s pending application seeking the leave of the trial Court to be allowed to adopt the appellant’s final written address?

The case on exhibit DD, being the confessional statement, is that the appellant retracted same and now wants this Court to rule that it was wrongly admitted in evidence.
More often than not, accused persons as in this case resile or retract from their confession during the trial. Be that as it may, the position of the law is that where an extra judicial confession has been proved and established to have been made voluntarily, and it is positive and unequivocal and amounts to an admission of guilt, such confession will suffice to ground a finding of fact regardless of the fact that the maker resiles therefrom or retracts it all together at the trial. Where an accused person resiles from a confessional statement made by him, the statement may still remain voluntary and admissible in evidence.

His conviction upon the said statement will depend on the following conditions.
1. Whether there is anything outside the confession to show that the statement is true,
2. Whether it is corroborated,
3. Whether the statement made in it of fact are true as far as they can be tested,
4. Whether the accused had the opportunity to commit the offence.
5. Whether it is consistent with other facts which have been ascertained and have been proved.
The fact that an accused has retracted a confessional statement does not mean that the Court cannot act upon it or is inadmissible. More often than not, it is very usual for an accused person to retract, deny or resile during his trial in the Court from the extrajudicial statement he had earlier made to the police immediately after the event giving rise to the charge or arraignment against him.
In such a situation, it behoves the accused to impeach his earlier statement and the Court is to test the veracity of that statement with other facts and circumstance outside the statement in order to see whether they support, confirm or correspond with the said statement. I am of the view that there

is sufficient evidence outside the confessional statement of the respondent to make it probable that the statement is true. See Per Okoro, JSC in State v. Saidu (2019) LPELR – 47397(SC); (2019) 10 NWLR (Pt.1680) 308. Exhibit DD was rightly admitted and acted upon by the lower Court against the appellant.

On the denial of fair hearing, the facts are that the parties after close of the case were given 28 days, 14 days each to file their written addresses, at the end of which the appellant counsel was yet to comply. The trial Court then ordered the respondent to file its address within 7 days and foreclosed the right of the defence to file its own and discountenanced its application to file out of time.
In the case of Newswatch Comm. Ltd. v. Atta (2006) 12 NWLR (Pt. 993) 144 at 175, Kalgo, JSC, had this to say:
“In our adversary system, it is incumbent upon the parties in a case to put their respective cases across the table before the Judge, who as an impartial arbiter and umpire, will adjudicate on the issues in controversy. That is the epitome of fair trial. But where as in the instant case, a party deliberately refused or neglected to lay

his case across the table despite all the opportunities granted to him by the Court to do so, up to the time judgment was delivered, that party cannot be heard to complain about the trial being unfair to him.”
The appellant, who had refused deliberately to avail himself of the opportunity to file written address within time cannot complain of breach to his right to fair hearing. See also Per Ogunbiyi, JSC in CBN v. Interstella Communications Ltd. & Ors (2017) LPELR-43940(SC); (2018) 7 NWLR (Pt.1618) 294. Indeed, the right to fair hearing cannot be used by nor is it for the indolent since equity aids the vigilant and not the lay about! The appellant’s right to fair hearing has not been breached. This issue is also against him.
I therefore hold that this appeal has no merit and is hereby dismissed.
Appeal dismissed.

Appearances:

S.E. Aruwa, Esq., with him, P.T. Soje, Esq., E.E. Nmeni, Esq. and A.L Idris, Esq. For Appellant(s)

Emmanuel Idemudia, Esq., with him, P.I. Ezema Esq. For Respondent(s)