OBASI v. STATE (2020)

OBASI v. STATE

(2020) LCN/4935(SC)

In The Supreme Court

On Friday, April 03, 2020

SC.931C/2018

Before Our Lordships:

Nwali Sylvester Ngwuta Justice of the Supreme Court of Nigeria

Mary Ukaego Peter-Odili Justice of the Supreme Court of Nigeria

Kudirat Motonmori Olatokunbo Kekere-Ekun 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

LUCKY OBASI APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

WHETHER OR NOT THERE IS A TIME LIMIT WITHIN WHICH A CRIMINAL RIAL OUGHT TO BE CONCLUDED

However, that there is no time limit within which a criminal trial ought to be concluded, especially when the accused person is on bail. Thus, reasonable time is relative as decided in NNAJIOFOR & ORS V. UKONU & ORS (1986) 2 NSCC (VOL. 17) 1067. PER AJI, J.S.C.

THE PRINCIPLE OF JUSTICE

This is apparently a case with chequered history and seemingly unending determination for over 20 years, yet still in the pipeline. “Even though it is the desire of all involved in the administration of justice to uphold the principle which States that justice delayed is justice denied, it is equally unacceptable to encourage or do injustice in an attempt at speedy dispensation of justice. Justice may be slow sometimes but it will surely arrive at its destination.” See per ONNOGHEN, JSC in OGLI OKO MEMORIAL FARMS LTD & ANOR V. NACB LTD & ANOR (2008) LPELR-3O6 (SC). “It is said that justice delayed is justice denied. The reverse is equally disturbing. Justice rushed is a travesty of justice and a threat to the fabric that binds civilized society together.” See Per NGWUTA, JSC in DANLADI V. DANGIRI & ORS (2014) LPELR-24020 (SC). The balance is what the law seeks when justice is to be administered as it is equally said that “delayed justice is as equally untoward and unconscionable as hurried justice. Hence, while justice delayed is tantamount to justice denied; similarly, hurried justice is harried justice. Both are to be avoided in the pursuit of justice.”PER AJI, J.S.C.

THE PRINCIPLE THAT HE WHO COMES TO EQUITY MUST COME WITH CLEAN HANDS

It is a truism that he who comes to equity must come with clean hands. See KAIYAOJA V. EGUNLA (1974) 12 SC 55, AJIBADE V. PEDRO (1992) 5 NWLR (PT.214) 257.
Similarly, this Court in DASUKI v. FRN & ORS (2018) LPELR-43897 (SC) alluding to ARIORI V. ELEMO (1983) 1 SCNLR 1 and FAWEHINMI v. NBA (No.2) (1989) 4 SC (Pt.1) 63 stated that a party can waive a right inuring to him for fair hearing/trial. It also made it clear that the public right to speedy trial or determination by the Court within a reasonable time cannot be waived. No litigant has a right to unnecessarily delay the hearing of his suit and move the Court to proceed at his pace. In order to give effect to the liberty of an accused person incarcerated, the essentiality of speedy trial imposes a duty on the Court and the parties (including their Counsel) to ensure that any antics or gimmicks aimed at delaying the determination of the matter must be avoided.
The Appellant has soiled hands to ask for the discretion or favour of this Court. This appeal therefore lacks merit and is hereby dismissed. PER AJI, J.S.C.

UWANI MUSA ABBA AJI, J.S.C. (Delivering the Leading Judgment): The Appellant was arraigned before the Anambra State High Court, Eguata-Ekwulobia on 30/6/1997 on a 6-count charge of malicious damage, rioting, stealing and riotous demolition of property. According to the Appellant, that after the commencement of the trial by Ezeari J, he was transferred out of the judicial division in 1999, which caused the Respondent to become lackadaisical towards prosecuting the matter thereby causing the Appellant to witness incessant transfer of the Judges assigned to hear the matter which took over 20 years without the matter being properly commenced. Consequently, the Appellant with others applied vide a motion dated 8/3/2016 for an order quashing/dismissing all the charges against him/them and discharging him/them. The Respondent’s case however is that since the arraignment of the Appellant on 14/6/1999, the Appellant and his co-accused persons used all kinds of techniques including consistent absences from the criminal proceedings to frustrate the speedy trial and determination of the 6-count charge against them. The Respondent emphasized that the Appellant failed to

appear for trial in over 40 occasions and requested for adjournments for over 15 times. In fact, that the trial Court at some occasion issued bench warrant against one or more of the accused persons, who during the pendency of the bench warrant committed same offences against the complainants on 18/5/2013.

The Ruling of the trial Court disfavoured the Appellant, who appealed to the lower Court. Having considered the appeal, the lower Court also dismissed the appeal, hence this current appeal. The Respondent’s lone issue aptly fits for the consideration of this appeal than the rather windy and prolific issues formulated by the Appellant.

ISSUE:
Whether the Court below was right in dismissing the Appellant’s appeal because his right to fair hearing was not breached, particularly when the delay in the trial of the Appellant was substantially caused by the Appellant himself and circumstances beyond the control of the prosecution.

It is the submission of the learned Counsel to the Appellant that his constitutional right of fair hearing within a reasonable time has been breached, the trial of the Appellant having lingered or being stalled for

about 18 years. He chronicled 4 instances attributing the delays to the actions/inactions of the Respondent. He admitted that the delay, if any, from the Appellant was minor and inconsequential. Thus, he submitted that speedy trial of the Appellant was breached and denied. He relied on DASUKI V. FRN & ORS (2018) LPELR-43897(SC). He submitted that the remedy for the breach of the Appellant’s right to fair hearing and speedy trial was a dismissal of the charge against him which the lower Court refused. He therefore urged for the resolution of this issue in his favour.

It is concurred by the learned counsel to the Respondent that speedy trial in criminal proceedings is an aspect of the right to fair hearing guaranteed by Section 36 of the Constitution, 1999 (as amended). However, that there is no time limit within which a criminal trial ought to be concluded, especially when the accused person is on bail. Thus, reasonable time is relative as decided in NNAJIOFOR & ORS V. UKONU & ORS (1986) 2 NSCC (VOL. 17) 1067. He submitted that the Appellant and or his co-accused persons failed to appear for trial in over 40 occasions and requested for

adjournments for over 15 times. Thus, the delay was substantially caused by the Appellant and his co-accused persons. Furthermore, that it is trite that a person cannot claim breach of his right to fair hearing where he has willfully absented himself from the said trial. He cited in reliance A.G. RIVERS STATE V. UDE (2006) 17 NWLR (PT. 1008) 436, 456-457. He prayed that this issue be resolved in its favour.

together.” See Per NGWUTA, JSC in DANLADI V. DANGIRI & ORS (2014) LPELR-24020 (SC). The balance is what the law seeks when justice is to be administered as it is equally said that “delayed justice is as equally untoward and unconscionable as hurried justice. Hence, while justice delayed is tantamount to justice denied; similarly, hurried justice is harried justice. Both are to be avoided in the pursuit of justice.”
The insurance, assurance and balance of justice stipulated in Section 36(4) of the 1999 Constitution (as amended) is “within a reasonable time by a Court or tribunal.” This Court in time past opined that “…the right to speedy trial is necessarily relative. It depends on each circumstance.” See Per MUHAMMADU LAWAL UWAIS, JSC in NNAJIOFOR & ORS V. UKONU & ORS (1985) LPELR-2056 (SC).
The gravamen of the Appellant in the present appeal is that his right to fair hearing and speedy trial have been breached, their trial having lingered now for over 20 years without conclusion or determination and seeks this Court to quash/dismiss their charges.
The instances for the delay in the trial of the Appellants and their co-accused

persons are contained at pages 134-139 of the record evidenced by Exhibits E, G, H, I, J, K, L, M, N, O, P, and R revealed at pages 154-180 of the printed records. For emphasis, may I narrate it infra.
When the Appellants and their co-accused persons were remanded, they were absent in the proceedings that came up on 15/8/1997. When the Information was filed on 8/12/1997 and the matter was fixed for 26/2/1998, the Appellant and co-accused persons were absent in Court. When adjourned to 18/1/1999 and later 26/4/1999, the Appellant was absent. The Appellant and co-accused persons appeared on 24/5/1999 to oppose the admission of the prosecuting Counsel’s fiat. This caused the matter to be adjourned to 14/6/1999 when the Appellant’s plea was taken and the matter adjourned to 20/9/1999, the Appellants’ Counsel were absent, causing adjournment to 8/11/1999 for the commencement of trial. On 8/11/1999, when the matter commenced, the Appellant and some co-accused persons were absent on 7/6/2000, 25/9/2000, 22/11/2000, 12/2/2001, 13/2/2001, 09/4/2001, 10/4/2001, 4/6/2001, 4/3/2002 respectively. On 4/3/2002 when a long adjournment was granted the Appellant to

14/4/2003, the Appellant and his co-accused were not complete for the trial to proceed, hence an adjournment was granted to 3/6/2003, still yet, the Appellant and co-accused persons were absent. They were absent individually or as a group on 14/5/2004, 13/7/2004 till 25/10/2004 when the JUSUN strike started and ended in March, 2005. When the matter came up on 17/3/2005, an adjournment was granted at the instance of the Appellant vide a letter of adjournment to 23/6/2005 but the accused persons were not complete for the matter to proceed. Same happened on 15/11/2005, 16/11/2005 and 20/2/2006. on 20/2/2006, bench warrant was issued against the 11th accused person, then adjourned to 6/6/2006 and 11/7/2006 due to the absence of the 8th accused person. From 11/7/2006 to 30/5/2013, there were shortage of Judges till when a judge was posted to handle the matter of the Appellants, which was adjourned to 18/11/2013. Again, the Appellant and co-accused persons started another gimmick of truancy to take their pleas. Another JUSUN strike struck from 14/10/2014, 14/6/2015. Meanwhile, during the pendency of the trial, the Appellant’s family member with others on 18/5/2013

invaded the subject matter of prosecution (the seminary compound) and committed same offences they stood trial for. On 15/6/2015, the Appellant and co-accused persons were not around to take their fresh pleas. Consequently, the matter was adjourned to 30/9/2015 and another JUSUN strike started until 5/1//2016. On 19/1/2016, the Appellant and co-accused were absent in Court. The matter then was adjourned to 10/3/2016. Fresh plea was taken by the Appellant and others on 10/3/2016. The matter was adjourned to 16/5/2016 for hearing the Appellant’s application scheduled for 22/6/2016 and 23/6/2016 after ordering accelerated hearing. Then the Appellant with others applied vide a motion dated 8/3/2016 for an order quashing/dismissing all the charges against him/them and discharging him/them. The Ruling on 6/2/2017 against the Appellants and others precipitated the appeal to the lower Court and this Court.
An accused person or the Appellants in the present case are bound by their own acts/omissions and that of their counsel. It is gleanable that the Appellants and their counsel attributed and contributed to the frustrated and delayed trial. It is expected that an

accused person who is facing/undergoing a criminal prosecution, is tried timeously so that he knows his fate in respect of the charge(s) preferred against him. where a matter had not been determined within a reasonable time as required by Section 36 of the Constitution; and the delay is equally attributable to the commission or omission of the party complaining, public policy would disentitle such a complaint from succeeding in his complaints. It does not truly lie in the mouth of such a culprit or any person who draws title through him to say that a delay perpetrated by him or in conjunction with other litigants or even with the complicity of the Court should form the basis of overturning a decision arrived at in spite of any delay. It would be most inequitable given the peculiar circumstances of the instant case to allow the Appellants to reap from a tardiness that had resulted predominantly from their own deliberate lapses. The Appellant who had complicity in the long delay in his prosecution cannot equitably take benefit of his Counsel’s tardiness and also the non-attendance in Court by some of his co-defendants, to insist that because of the long delay in

his trial, the charges against him must be quashed or dismissed. It is a truism that he who comes to equity must come with clean hands. See KAIYAOJA V. EGUNLA (1974) 12 SC 55, AJIBADE V. PEDRO (1992) 5 NWLR (PT.214) 257.
Similarly, this Court in DASUKI v. FRN & ORS (2018) LPELR-43897 (SC) alluding to ARIORI V. ELEMO (1983) 1 SCNLR 1 and FAWEHINMI v. NBA (No.2) (1989) 4 SC (Pt.1) 63 stated that a party can waive a right inuring to him for fair hearing/trial. It also made it clear that the public right to speedy trial or determination by the Court within a reasonable time cannot be waived. No litigant has a right to unnecessarily delay the hearing of his suit and move the Court to proceed at his pace. In order to give effect to the liberty of an accused person incarcerated, the essentiality of speedy trial imposes a duty on the Court and the parties (including their Counsel) to ensure that any antics or gimmicks aimed at delaying the determination of the matter must be avoided.
The Appellant has soiled hands to ask for the discretion or favour of this Court. This appeal therefore lacks merit and is hereby dismissed.

NWALI SYLVESTER NGWUTA, J.S.C.: I read in draft the lead judgment just delivered by my learned brother Uwani Musa Abba Aji, JSC. I entirely agreed that the appeal is devoid of merit.

It is said that justice delayed is justice denied. The delay can be caused by either of the parties, in this case the Respondent or the Appellant. It can also be caused by Court itself. On the facts of this appeal the delay is substantially caused by the Appellant.
How can a delay caused by the Appellant being absent on over 40 sittings of the Court without a just cause coupled with over 15 adjournment at the instance of the Appellant, be described as minor and inconsequential delay in the matter.
The Appellant must not be allowed to benefit from the delay he caused.

Above all the appeal is against the concurrent finding of fact by the two Court below. The Appellant has not demonstrated any perversity or error in law or procedure or both, which needs to be corrected to prevent a miscarriage of justice. See Nwadike vs Ibekwe (1987) 4 NWLR (Pt. 67) 718; Lamai vs Orbih (1980) 5 – 7 SC 28; Chinwendu vs Mbamali (1980) 3 – 4 SC 31.
For the above and the full reasons in the lead

judgment, I also dismiss this appeal for lack of substance.

Appeal dismissed.

MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my learned brother, Uwani Abba Aji JSC and to register the support I have in the reasonings from which the decision came about, I shall make some comments.

The appellant’s Notice of Appeal was filed against the Ruling of the Court of Appeal, Enugu Division or Court below or Lower Court, Coram: Helen Moronkeji Ogunwumiju, Tom Shaibu Yakubu and Joseph Tine Tur JJCA delivered on the 25th May 2018 which dismissed the appeal, affirming the decision of the trial High Court which had refused the application of the appellant to have the charge against him quashed, or dismissed.

The fuller details of the facts reading to this appear are well set out in the read judgment and no useful purpose will be derived in repeating them except when circumstances warrant a reference to any part of those facts.

At the hearing of the appeal before this Court on the 16/7/2020, learned counsel for the appellant, Chima Okereke adopted the brief of argument filed on 12/12/18 and deemed filed on 10/10/19 and a

reply brief filed 30/5/19 and deemed filed ob the 10/10/19.

The appellant identified four issues for determination, viz:-
i. Whether the learned justices of the Court of Appeal ought not to have quashed/dismissed the charges against the appellant in view of the undisputed facts that almost 17 (seventeen) years of the 18 (Eighteen) years delay in commencing the trial of the accused attributable to the respondent’s action and/or inaction. (Distilled from Grounds 2, 3, 5 and 6 of the Amended Notice of Appeal).
ii. Whether the learned justices of the Court of Appeal were right when they held as follows:-
“What is clear as crystal to me is that both parties are complicit in the antics that have caused the delay of the trial of the appellant and other co-accused for 18 years or more. The appellant cannot heap all the blame on the respondent as blame worthy as the later (sic) might be since the appellant himself is part of the group being prosecuted which group has engaged in all manner of antics to frustrate the trial of the charges against them.” (Distilled from Ground 1 of the Amended Notice of Appeal).
iii. Whether the Court of Appeal was

right in holding there was not in the circumstances of this case a breach of the appellant’s constitutional right to a fair hearing within a reasonable time which is entitled to be remedied by a dismissal and or quashing of the charges laid out against him. (Distilled from Ground 4 of the Amended Notice of Appeal).
iv. Whether the decision of the learned justices of the Court of Appeal that the charge against the appellant could not be quashed/dismissed because the appellant complaint is about breach of his right to a fair hearing within a reasonable time and not about defect in the charge is wrong and ought to be set aside. (Distilled from Ground 7 of the Amended Notice of Appeal).

Learned counsel for the respondent, Dr. E.S.C. Obiorah adopted the brief of argument filed on 28/3/17 and raised a sole issue for determination which is thus:-
Whether the Court below was right in dismissing the appellant’s appeal because his right to fair hearing was not breached, particularly when the delay in the trial of the appellant was substantially caused by the appellant himself and circumstances beyond the control of the prosecution.

This single issue

of the respondent is apt and captures the nagging question in the determination of this appeal and I shall so utilise it.

SINGLE ISSUE:
Whether the Court below was right in dismissing the appellant’s appeal because his right to fair hearing was not breached, particularly when the delay in the trial of the appellant was substantially caused by the appellant himself and circumstances beyond the control of the prosecution.

Learned counsel for the appellant stated that the Lower Court erred when it herd that the appellant is complicit in the delay of the proceedings as the facts in the Record would show and the fault lay squarely at the doorstep of the persecution and therein rests the assertion of the appellant that his right to speedy trial was jeopardized. He cited Dasuki v FRN & Ors (2018) LPELR-43897 (SC); Section 36 (5) of the Constitution of the Federal Republic of Nigeria .1999; PDP v CPC & Ors. (2011) LPELR-2909 (SC); Re: G. M. Boyo (1970) 1 All NLR 111 at 116.

Learned counsel for the respondent countering the position of the appellant submitted that the reasonable time envisaged by Section 36 (1) and (4) CFRN depends on the

facts and circumstances of each case and does not cover the delay brought about by the appellant who cries for speedy trial within a reasonable time. He cited Danladi v Dangiri (2015) 2 NWLR (Pt. 7442) 124 at 167; State v Lawal (2013) 7 NWLR (pt.1354) 565 at 585; Ezeze v State (2004) 14 NWLR (pt.894) 491 at 503.

That the appellant withheld the record of proceedings of the trial Court since 1997 from the Record of appear which if brought out would have been unfavourable to the appellant thereby bringing into operation Section 167 (d) of the Evidence Act, 2011.

In a nutshell, the main thrust of the appellant’s appeal is that his fundamental right to fair hearing within a reasonable time was breached thus necessitating the quashing or dismissal of the charge against him.
The countering posture of the respondent is that the appellant was not entitled to hang onto a breach of fair hearing when they delay in his trial upon which the appellant hangs the said infraction was caused by the antics and gimmicks he and is co-accused deployed over the stated period and which frustrated the trial and so the Apex Court granting a favourable leaning to the plea

of the appellant would in effect be allowing the appellant derive a benefit from his own wrong doing.
On this matter of whether or not the appellant’s right to fair hearing was complied with in keeping with the provisions of Section 36 of the 1999 constitution of the Federal Republic of Nigeria (CFRN for short). Section 36 (4) of GFRNprovides as follows:-
“Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in pubic within a reasonable time by a Court or tribunal.”
It needs be said that speedy trial in criminal proceedings is an aspect of the right to fair hearing as guaranteed by Section 36 CFRN even though there is no time limit within which a trial for a criminal offence must be concluded especially when the accused person is on bail as in the case at hand. See Dasuki v FRN (2018) 10 NWLR (1627) 320 at 341.
On what “reasonable time” connotes, this Court had the phrase explained in the case ofNnajiofor & Ors. v Ukonu & Ors. (1986) 2 NSCC (Vol.17) 1062 thus:-
“It is not therefore possible to lay down a fixed rule as to a ‘reasonable time’ is in the

trial of every case. Some cases are by their nature short or lengthy by reason of the number of witnesses to be called or the length of the testimonies of the witnesses. Others involve witnesses who do not live in the country or within the Court’s jurisdiction. Documents to be put in evidence may be in the custody of a third party and may not such be readily available for production at the trial. The hearth of a vital witness or even the trial judge may fail. Ail these and many more factors which can reasonably delay the conclusion of a trial.
I am strengthened in this view by the observation of my learned brother Eso, JSC, in the lead judgment in Ariori.& Ors., where he said at p.58: ‘And so the right to speedy trial is necessarily relative. It depends on each circumstance.”
Again, in the case of Danladi v Dangiri (2015) 2 NWLR (Pt.7442) 124 at 1667, my learned brother Ngwuta JSC stated thus:
“In my view, the phrase ‘within a reasonable time’ implies that the time for the determination of the matter should not be too short or too long, depending on the nature and facts of the case.”
Clearly “within a reasonable time” has to be taken in

context with the facts and circumstances prevailing in a given case and not taken literally just because the passage of time would on the face of it seem to have dragged for a long time. That said, in this instance the appellant was prosecuted and tried with some other person who was the 1st accused of whom the appellant alluded in paragraphs 15, 18, 19, 20, 21, 23, 24, 26, 27, 29, 34 and 36 of his further affidavit to have been absent which caused the delay in the trial. there is nothing strange in the absence of co-accused persons creating some stalling or delay since as human beings one thing or the other could keep the partner away on a given date and the trial has to be with all accused present.
See Section 300 of the Administration of Criminal Justice Law of Anambra State, 2010; State v Lawal (2013) 7 NWLR (Pt.1354) 565, 585; Ezeze v State (2004) 14 NWLR (Pt.894) 491 at 503.
The undisputed facts in the instant case showed the appellant or two or more of his co-accused absent at the trial on more than 40 occasions and sought adjournments for over 15 times. For instance during the remand proceedings on 15/08/1997, the six (6) of the appellant’s

co-accused were absent in Court. When the information was filed on 08/12/1997 and the matter fixed for 26/02/1998, the appellant and co-accused were absent and the matter further adjourned to 27/04/1998 for plea at the High Court and again the appellant was absent and so on 18/12/1999 and later 26/04/1999 also appellant was absent. The appellant and his co-accused appeared on 24/05/1999 and opposed the admission of the prosecuting counsel’s fiat. The matter was again adjourned to 14/06/1999, when the appellant and his co-accused eventually took plea to the Information in this Charge No. AG/26c/1997 and the matter was adjourned to 20/09/1999.
On the said 20/09/1999, the appellant’s counsel was absent the matter was eventually adjourned to 08/11/1999 when trial commenced. From the commencement of trial on 8/11/1999, the appellant or some of his co-accused persons were absent on 07/06/2000, 25/09 /2000, 22/11/ 2000, 12/02/2007, 13/02/2001, 09/04/2001, 10/04/2001, 04/06/2001, 04/03/2002. See 6-25 of the Respondent’s counter-affidavit at pages 132 – 136 of the Record.
It was on 04/03/2002 that the appellant’s counsel prayed for a long adjournment, which

was granted to him and the matter was adjourned to 14/04/2003. on the said 14/04/2003, the appellant and co-accused were not complete. The matter was again adjourned to 03/06/2003 but the appellant and his co-accused were absent. The records further show that the trial was frustrated by the absence of one or more of them on 14/05/2004, 13/07/2004 till 25/10/2004, when there was a nationwide JUSUN strike which lasted until March 2005. The matter was eventually adjourned to 17/03/2005. On 17/03/2005, the appellant’s counsel submitted a letter for adjournment and was not in Court. The matter was again adjourned to 23/06/2005 but the accused persons were not complete on that day and subsequent dates of 14/11/2005, 15/11/2005, 16/11/2005, and 20/02/2006. On the said 20/02/2006, the trial Court issued a bench warrant against the 11th accused person. The matter was again adjourned to 06/06/2006 and 11/07/2006 due to the absence of the 8th accused person. See 26-35 of the respondent’s counter affidavit at pages 136-139 of the record.
From 11/07/2006 till 30/05/2013, there was serious shortage of judicial officers in Anambra State and only one judge was sitting in

Court No.1 of the entire Aguata Judicial Division. No judge was posted to Court No.2 where the matter was pending. See 36 of the respondent’s counter affidavit at page 139 of the record. The prosecution felt frustrated by the appellant was enjoying the scenario because he was on bail and going about his business undisturbed. When a Judge was eventually posted to the said Court No. 2, the present Prosecuting Counsel took over the prosecution and the matter was adjourned to 18/11/2010. See 38-39 of the respondent’s counter affidavit at page 139 of the record.
The records again show the constant absenting from Court by the appellant and co-accused and so not complete to take plea on 18/17/2013. JUSUN strike came up again from 14/10/14 till 14/06/2015.
Meanwhile, on 18/05/2013, during the pendency of the trial and while the JUSUN strike was still ongoing, the appellant’s family members, led by the 7th and 8th accused persons, invaded the same Seminary compound where the original offences were committed and committed the same offences again and are currently facing trial for their new crimes in Charge No. MU/69C/2013: C.O.P. V. ONYEJERI & ORS. See 46

of the respondent’s counter affidavit at page 141 of the record. The matter was scheduled for 15/06/2015. On that day, the appellant and his co-accused were not complete to take their plea afresh and the matter was adjourned to 30/092015. The said 30/09/2015 was overtaken by JUSUN strike in Anambra state which started on 15/09/20156 and ended on 05/01/2016. See 41 of the respondent’s counter affidavit at pages 140 of the record.
After the JUSUN strike, the matter was fixed for 19/01/2016 but the appellant and is co-accused were absent from Court. The matter was adjourned to 10/03/2016 but the accused person were not complete. To assure that the appellant and some of his co-accused faced their trial, the prosecution withdrew the names of the 5th, 6th and 9th accused person who were absent. The appellant and the remaining accused persons then took fresh plea on the said 10/03/20t6. The trial Court adjourned the matter to 16/05/2016 for hearing of the appellant’s motion and scheduled the trial for 22/06/2016 and 23/06/2016, after ordering for accelerated trial. See 44 of the respondent’s counter affidavit at pages 140 – 1441 of the record.
The summary

of the periods when the delay in the trial of the appellant and his co-accused was caused by the appellant and his co-accused are:
i. 26/02/1988 to 14/06/1999 = 1 year & 4 months
ii. 20/09/1999 to 08/11/1999 = 2 months
iii. 07/06/2000 to 25/10/2004 = 4 years & 4 months
iv. 17/03/2005 to 11/07/2006 = 1 year & 4 months
v. 18/11/2013 to 04/02/2014 = 3 months
vi. 15/06/2015 to 30/09/2015 = 2 months
vii. 19/01/2016 to 10/03/2016 = 2 months
TOTAL = 7 years & 8 months.
The summary of the periods occasioned by either an Act of God or circumstances outside the control of the parties are stated thus:
a. 25/10/2004 to 17/03/2005 (JUSUN strike = 7 months
b. 11/07/2006 to 30/05/2013 (no Judge available) = 6 years and 10 months
c. 08/07/2014 to 15/06/2015 (JUSUN strike) = 11 months
d. 30/09/2015 to 05/01/2016 (JUSUN strike) = 8 years and 5 months.
The Court below held as follows:-
“I do not think that the fundamental right of the applicants guaranteed by Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) was breached by the respondent nor the Court

when most of adjournments in the case were occasioned by the absence of the defendants or their counsel from the Court…
The trial Court had held thus:-
“The complainant who initiated these proceedings in 1997 are also entitled to have their matter heard timeously. Assuming the complainant had been absent from Court in the matter the defendants were shown through the exhibits to have absented themselves from the proceedings, the Court by virtue of Section 187 of the Administration of Criminal Justice law of Anambra State 2010 would have struck out the case.
The defendants in my mind are the major cause of the undue delay in having their matter heard due to their incessant absent from Court.”
In a concurrent finding the Court below stated as follows:-
“…where some of the appellant’s co-accused persons were absent from Court for one reason or the other, the trial certainly could not have proceeded in their absence. And this was even compound by the absence from Court by appellants’ counsel on 20th December, 1999, 9th February, 2001, 13th July, 2004 and 17th March, 2005 etc, as indicated at pages 69, 75, 84 and 88 of the record of

appeal.”
Of note is that the appellant and his co-accused did not even deny their complicity in the delaying the trial as clearly shown in paragraphs 4, 10, 11, 12, 13, 15, 18, 19, 20, 21, 22, 23, 25, 26, 27, 28, 29,32, 34, 35, 36, 37, 38, 39, 41,43, 44 and 46 of the respondent’s counter affidavit which articulated and outlined about 40 times the appellant or some of his co-accused were absent in Court, thereby frustrating the trial. See pages 131, 133 to 141 of the record. In fact, the appellant expressly admitted in paragraphs 7, 10, 11, 15, 16, 18, 19, 21, 23, 24, 26, 27, 29, 34 and 36 of the applicant’s further affidavit in support of their Motion on Notice dated 8th March 2016 that either himself or his co-accused was absent during trial thereby necessitating the constant adjournment of the trial.
The question that logically crops up in the right of the facts that are glaring in this case at hand is, if a party who in the legal dispute can claim that his right to fair hearing had been breached when he willfully absented himself from the said hearing and complicit in the ensuring delay of the trial. The easy answer would be in the negative as no

one is permitted to profit from his own wrong or default. See A. G. Rivers State v Ude (2006) 17 NWLR (Pt.1008) 436 at 456 – 457; FBN Plc v Songonuga (2007) 3 NWLR (Pt.1021) 282; Adedeji v NBN Ltd. (1989) 1 NWLR (Pt.96) 212 at 226-227; Alabi v Doherty (2005) LPELR – 6145 CA.
It is therefore in the guiding light of the concept above stated that the Court below made the following pronouncement.
“Therefore, I am of the considered and firm opinion that since the appellant also had complicity in the long delay in his prosecution at the Court below, he cannot equally take benefit of his counsel’s tardiness and also the non-attendance in Court by some of his co-defendants, to insist that because of the long delay in his trial, the charges against him must be quashed or dismissed. It is a truism that he who come to equity must come with clean hand.”
What the appellant attempted to do in paragraphs 7, 10, 11, 15, 16, 18, 19, 21, 23, 24, 26, 27, 29,34 and 36 of the Applicants’ Further Affidavit, as shown at pages 200 – 203 of the record of this appeal, was to give excuses for his absences at trial, including the absences of his counsel and his co-accused.

However, the said excuses were not borne out of the record of this appeal. The appellant deliberately omitted to include in this record of appeal the proceedings of the trial Court from 1997 to 2014. If the said record of the proceedings had been included in this record of appeal, this Apex Court would have seen the appellant’s claims and excuses as misleading. see Section 167 (d) of the Evidence Act, 2011. In fact the trial Court found thus:-
“There is no doubt that this charge has lingered for a long time before this Court. Only plea has been taken. The applicants however did not place the record of proceedings of what transpired since 1997 when the information was filed before the Court to enable the Court decide what caused the delay in having the matter heard since 1997.”
From what is seen from the records, the assertion by the respondent that the appellant and co-accused deployed gimmicks to delay the proceedings are supported by the facts on ground and situation not lost on the Court of trial. It is for this position of things that I call in aid the dictum of Tobi JSC in Newswatch Communications Ltd. v Atta (2006) 12 NWLR (pt.993) 144 at 171 thus:-

“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 slumberer, the indolent or the lazy litigant, but it is for the party who is alive and kicking in the judicial process by taking advantage of the principle at the appropriate time, The principle is not available to a party who sets a trap; in the litigation process against the Court and accuse the Court of assumed wrong doing even when such so-called wrong doing is, as a matter of fact, propelled or instigated by the party, through his counsel.”
Those immortal words captured the full essence of what this Court is faced with to unravel and there is no difficulty in the assignment since the appellant in counsel’s brief claimed to be prejudiced when the situation of prejudice was caused by his own making and in some instances, he was helped along the way by his co-travelers in creating the delay wherein on record over 40 absences in Court were due to him and co-accused with over 15 applications for adjournment by his counsel. Those, more than anything on the side of the respondent

produced the delay which appellant wishes to clutch as anchor for his own benefit while screaming that speedy trial was denied him. See Dasuki v F.R.N. (2018) 10 NWLR (Pt.1627) 320 at 341.
Indeed, the fair hearing right the appellant said was denied him in the absence of the speedy trial was waived by him through his conduct and though his incessant absence from Court including those of his counsel and co-accused. The case apposite to the one at hand and at which fundamental rights were categorized into three with regard to the right of waiver is the case of Ariori & Ors. v Elemo & Ors (1983) NSC (Vol.14) 1 at 13 per Eso JSC thus:-
“Having examined the opinions of the Courts in these two common law countries which have fundamental rights similar to ours inserted in their constitution, I am of the firm view that fundamental rights are classifiable.
a) Fundamental rights that are for the sole benefit of the private individual. Example is right to speedy trial which a litigant can waive by asking for an adjournment of the case. So far as the adjournment does not give rise to a miscarriage of justice the waiver is permissible.

b) Fundamental rights that are for the benefit of the litigant and the public. Again, give the example of a speedy trial and a litigant seeking an adjournment in the case, or in other words waiver of the right, but the adjournment sought is of a nature that the Court will lose the advantage it has of accurate assessment of the witnesses it has observed in the course of trial. In such a case waiver is not permissible. To permit it will lead to injustice. It is against public policy to compromise illegality (manifest or latent).
c) Where the question of waiver relates to a right in the control of the State or, in the sole control of the Court. A good example is the instant case where the Court, after the close of the case for both parties adjourned for such a long time for judgment as to make it lose control over the case. In such cases, the parties have nothing to waive. It is not within their competence to waive anything,”
The instant case falls within category “a” above- a waiver of the right to speedy trial by the appellant and his co-accused through their continued absence from Court, coupled with their incessant requests for adjournment of the

trial. If the trial Court had denied the appellant and appellant’s counsel any of their 15 requests for adjournment in this matter, they would have cried ‘wolf’, that their right to fair hearing had been violated. Similarly, if the trial Court had continued the trial proceedings during one of the 40 times the appellant or any of his co-accused was absent in Court, the appellant’s counsel would have screamed that his client’s right to fair hearing had breached. In this, I agree with learned counsel for the respondent.
Clearly no basis exist upon which a disturbance of the concurrent findings of the two Courts below can be anchored. Therefore, the appellant by his own making and those of his co-accused chose to do away with speedy trial and has to live with it with the consequences resulting.

From the foregoing and the better articulated lead judgment, I dismiss this appeal which lack in merit.

I abide by the consequential orders made.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had a preview of the judgment of my learned brother Uwani Musa Abba Aji, JSC just delivered. I agree with the reasoning and conclusion resulting in the

dismissal of the appeal.

In a nutshell, the appellant sought the quashing of the criminal charges against him on the ground that his fundamental right to be tried within a reasonable time had been breached having regard to the fact that due to the exceptionally frequent transfer of the Judges assigned to his case, it has lingered for over 20 years without being heard.
There are certain principles that guide the Court when determining an application to quash criminal charges. They include:
(a) Where the proof of evidence and witness statements attached thereto do not disclose a prima facie case against the accused person; See Abacha Vs the State (2002) 7 SC (Pt. 1) 1; Ikomi Vs The State (1986) 3 NWLR (Pt. 28) 340
(b) Where the proof of evidence does not sufficiently link the accused with the offence;
(c) Where there is a fundamental defect in the charge which goes to the root of the adjudication or which has the effect of misleading the defence to its prejudice. See: Ibrahim Vs The State (2019) 1 NWLR (Pt. 1600) 297; Ikpa Vs The State (2017) 4 NWLR (Pt. 1509) 175.
The appellant has not advanced any arguments in this appeal to

warrant the quashing of the charges against him on any of the grounds stated above. I am in complete agreement with the Court below that the learned trial Judge could not have acceded to the request to quash the charge in the absence of any complaint of a fundamental defect in the charge.

With regard to the contention that the delay in the hearing of the case has resulted in a breach of the appellant’s fundamental right to fair hearing, it is quite evident from the record, particularly the counter affidavit filed by the respondent and the exhibits annexed thereto, giving the chequered history of the case, which the appellant failed to controvert, that a significant amount of delay was occasioned by the absence of the appellant and his co-accused from Court or numerous occasions, knowing fully well that in a joint trial, the case could proceed unless all the accused persons were present.
Whether or not a case has been heard and determined within a reasonable time will depend on the peculiar facts and circumstances of each case. In the instant case, I agree with the learned trial Judge, whose views were affirmed by the Court below that “it would be

most inequitable, given the peculiar circumstances of the instant case, to allow the appellants to reap from a tardiness that had resulted predominantly from their own deliberate lapses.”

For these and the fuller reasons stated in the lead judgment, I find this appeal to be without merit. It is accordingly dismissed. The judgment of the lower Court is affirmed.

Appeal dismissed.

EJEMBI EKO, J.S.C.: The Appellant 40 times failed to appear at the trial Court and thereby forced the Court to adjourn the proceedings 40 times. In addition he requested for adjournment, and was obliged, 15 times. Thus for 55 times the adjournments at the trial Court were at his instance. He, and others, were being prosecuted for non-capital offences of malicious damage, rioting, riotous demolition of property and stealing.
Section 35(4)(b) of the 1999 Constitution prescribes three months, from the date of the arrest of any person for a non-capital offence, as the reasonable time within which he should have been tried. Section 36(4) of the same Constitution further provides that 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 Constitution, in Sections 36(4) and 35(4)(b) read together, does not contemplate an unreasonable defendant in a criminal proceedings who perpetually abuses his right to be tried within a reasonable time.
We have here a person who seeks justice in a Court of justice who does not come with clean hands. Equity acts in personam and would not allow a party, as the instant Appellant who comes seeking its aid in justice, with dirty hands. Clearly, the Appellant has by his conduct waived his right to be tried within a reasonable time for the aforementioned criminal offences. He is estopped from complaining about, or blaming either the prosecutor or the trial Court for, any delay in his trial. Having volunteered the injury of frustrating and delaying his speedy trial the Appellant cannot complain that he bears the consequence of the self-inflicted delay. After all the rule is: volenti non fit injuria.
It appears the trial Court had over indulged the Appellant in a total of no less than 55 adjournments at his instance. It is time for the trial Court to cut

off the over indulgence and apply all inherent powers at its disposal to save costs to the prosecution by the unwarranted antics and truancies of the defence.
My learned brother, UWANI MUSA ABBA AJI, JSC in the judgment just delivered dismissed the appeal for lacking in merits. I agree entirely and also add that this appeal is frivolous and vexatious, and a gross abuse of the due process of this Court for which I hold the Appellants counsel fully culpable. And it is unfortunate that the counsel an officer of this Court and a minister in the temple of justice should be associated in an act that desecrates the temple of justice.

Appeal dismissed.

Appearances:

CHIMA OKEREKE, ESQ., with him, CHIEF F. OKEREKE-ONYERI, ESQ., and F. MONAGO, ESQ. For Appellant(s)

E.S.C. OBIORAH, ESQ. For Respondent(s)