OTUNBA JUSTUS OLUGBENGA DANIEL v. FEDERAL REPUBLIC OF NIGERIA
(2013)LCN/6557(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of November, 2013
CA/I/55/2013
RATIO
CONDITIONS AMOUNTING TO AN ABUSE OF COURT PROCESS
On the issue of abuse of process, it should be noted that, to amount to an abuse of process, the proceeding or step taken in the proceeding complained of, should be one that is lacking in bonafides. It has to be an improper use or perversion of process after it had been issued. In other words, it has to be a malicious perversion of a regularly issued process, civil or criminal, and for a purpose or to obtain a result not lawfully warranted or properly attainable thereby. Amaefule v. State (1988) NWLR (Pt.75) p.238; C.B.N. v. Ahmed (2001) 11 NWLR (Pt.724) p.369 and Okafor v. A.G; Anambra (1991) 6 NWLR (Pt.200) p.659.
Furthermore, it is the subsequent action that will constitute an abuse of process of the court. This is because, it is not the existence or pendency of the previous action that will give rise to the allegation of abuse of process; rather, it is the institution of a fresh action between the same parties and on the same subject matter, when the previous suit or action has not been disposed of that constitutes abuse of process. See Edet v. State (1988) NWLR (Pt.91) p.722; Adesokun v. Adegorolu (1991) 3 NWLR (Pt.293) p.297 and Umeh v. Inu (2008) 8 NWLR (Pt.1089) p.225. Per OBIENTONBARA DANIEL-KALIO, J.C.A.
Before Their Lordships
M.B. DONGBAN-MENSEMJustice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANIJustice of The Court of Appeal of Nigeria
OBIETONBARA DANIEL-KALIOJustice of The Court of Appeal of Nigeria
Between
OTUNBA JUSTUS OLUGBENGA DANIELAppellant(s)
AND
FEDERAL REPUBLIC OF NIGERIARespondent(s)
OBIENTONBARA DANIEL-KALIO, J.C.A.:(Delivering the Leading Judgment): The dispute on appeal in this case is over the Ruling of the High Court of Ogun State in respect of issues of Fair Hearing, Abuse of Process and Contempt of Court.
By an information dated 2nd April, 2012, the Federal Republic of Nigeria (the Respondent in this Appeal) brought a number of charges against the Appellant including inter-alia 13 Counts indicating that the Appellant whilst being the Executive Governor of Ogun State and a Trustee of the Government of that State pursuant to the provisions of the Land Use Act, with intent to defraud, converted land to some favoured companies and individuals. In total, the information filed against the Appellant contained 38 Offences with which the Appellant was charged.
On the 15th of October 2012, the Appellant filed a Motion on Notice in which he sought an order of the High Court of Ogun State striking out counts 1 to 13 in the information filed. The Motion on Notice sought two other prayers made in the alternative. The first was to stay further proceedings in respect of the said counts 1- 13 pending the determination of the Appellant’s action in Suit No. M/74/2012 Otunba Olugbenga Daniel & Anor. vs. Governor of Ogun State & 6 Ors. while the second alternative prayer was for the adjournment of the trial indefinitely until the determination of Suit No. M/74/2012.
The grounds of the Motion on Notice indicated inter-alia that the applicant’s right to fair hearing had been and was likely to be compromised by the findings and recommendations of the Ogun State Judicial Commission of Inquiry into the land allocation, acquisition, sales and concessions of Government Properties and Administration of Land Policies, Rules and Regulations between January 2004 and May 2011 and the White Paper issued by the Ogun State Government on the Findings and Recommendations of the Judicial Commission.
The affidavit in support of the motion averred that the Economic and Financial Crimes Commission (EFCC) and the Attorney-General of Ogun State were agents of the Ogun State Government to prosecute the counts in the information against the Appellant; that the Ogun State Government set up a Judicial Commission of Inquiry the terms of reference of which included inquiry into the allocation, acquisition, sale and concessions of government properties between January 2004 and May 2011; that the properties investigated by the Judicial Commission were also the subject matter of count 1- 13 in the information; that the Judicial Commission has submitted its report, which report had been given wide publication in the print media; that in the report of the Judicial Commission, the Appellant was adjudged liable for fraudulently converting various plots of land that were the property of the Ogun State Government and finally, that the damaging report of the Judicial Commission was available for use against the Appellant in respect of the said count 1 – 13 in the Information.
It is apposite to say that on 14/12/2012 the lower court granted an extension of time for the filing of a counter-affidavit, further affidavits and reply on points of law. In the Respondent’s Counter-Affidavit, it was averred that the proof of evidence which accompanied the Information filed against the Appellant made no reference to the Judicial Commission complained about by the Appellant.
After the Counsel to both parties adopted their respective written addresses, the lower court adjourned the matter to the 8th of January 2013 on which date it gave its Ruling. In the ruling, the trial Judge refused to strike out counts 1- 13 in the Information filed against the Appellant. The trial judge went further and decided as follows:-
“It is therefore my considered view that there is no basis for the order sought by the applicant to stay proceedings in this action with respect to counts 1 – 13 or for the action to be adjourned sine die pending the determination of Suit No. M/74/2014. I hold that it would be unjust and unreasonable to grant any of the said orders sought pending the determination of the Said suit.
For all the reasons stated above, I resolve the only issue for determination against the applicant. In the result, this application fails, being wholly unmeritorious. Accordingly, I hereby make an order dismissing it.”
Dissatisfied with the Ruling, the Appellant filed a Notice of Appeal in which he reeled-off eleven grounds upon which he felt dissatisfied with the Ruling. By an order of this court, the Notice of Appeal was amended via an Amended Notice of Appeal dated 3/4/13, filed on the same date but deemed as properly filed and served on 9/10/13. The Amended Notice of Appeal increased the grounds of appeal from eleven to a dozen.
The parties filed their respective Briefs of Argument. The relevant Appellant’s Brief of Argument is the Amended Appellant’s Brief of Argument dated 12/6/13 filed on 13/6/13 and deemed as properly filed and served by an order of this court made on 9/10/13. The Respondent’s Brief of Argument was dated and filed on 8/10/13. The Appellant filed a Reply Brief on 17/10/13. All the Briefs of Argument were adopted in court on 28/10/2013 by Counsel.
Appellant’s Counsel Prof. Taiwo Osipitan SAN who led a team of lawyers including three other Senior Advocates of Nigeria namely, Tayo Oyetibo SAN and Mrs Titilola Akinlawon SAN began his submission by highlighting the Terms of Reference of the Judicial Commission of Inquiry set up by the Ogun State Government and the Findings of the Commission as they pertain to the Appellant. He related the findings to counts 1, 2, 3, 4, 5, 6, 8 – 11 and 13 in the Information filed against the Appellant before the trial Judge. The Learned Senior Advocate submitted that as a result of the dissatisfaction of the Appellant with the findings of the Commission of Inquiry, which findings according to him, indicted the Appellant and were accepted by the Ogun State Government, the Appellant instituted Suit No. M/74/2012: OTUNBA GBENGA DANIEL & ANOR. VS. GOVERNOR OF OGUN STATE & ORS. in the Shagamu Judicial Division of the High Court of Ogun State wherein the Appellant sought an order quashing the Report of the Commission of Inquiry and the decision of the Ogun State Government accepting it.
Now with regard to the Ruling of the trial Judge under attack in this appeal, the Learned SAN formulated the following as the issues for determination in this appeal:
(1) Whether –
(a) The damaging Findings/Recommendations made by the Land Commission (The Judicial Commission of Inquiry);
(b) The issuance of Government White paper on the Findings/Recommendations of the Commission; and
(c) The Publication of the said Findings/Recommendations of the Commission and views of Ogun State Government in the widely circulated punch Newspaper by the Ogun State Government during the pendency of counts 1 – 13 in the court below are breaches or a likely breach, of the Appellant’s Constitutional Right to Fair Hearing of counts 1 – 13.
(2) Whether in the light of the Findings/Recommendations of the Land Commission (headed by a serving Judge of Ogun State Judiciary) which indicted the Appellant for fraudulent conversion of Land/breach of Trust which are the subject matter of counts 1 – 13 and acceptance of the findings by the State Government vide Government White Paper, it is or it is not an abuse of court process for counts 1 – 13 to be tried by another serving Judge of Ogun State Judiciary.
(3) Whether the continuation of Hearing by the Land Commission in respect of the subject matter of counts 1- 13, the acceptance of the Report of the Land Commission; the issuance of White Paper on the Report of the Commission and the publication of Findings/Recommendations of the Commission and Government views on the Land Commission Report with respect to the subject matter of counts 1- 13 during the pendency of the said counts 1- 13 in the court below, do or do not constitute disrespect and utter contempt of court by the Government of Ogun State.
The Respondent’s Counsel Rotimi Jacobs SAN contended in the Respondent’s Brief which was adopted in court on 28/10/2013 by Adebisi Adeniyi Esq. that the Appellant would appear to have abandoned grounds 10 and 11 of the Grounds of Appeal which touch on the principle of double jeopardy. He urged that the Appellant did not distil any issue from the said grounds 10 and 11 and therefore further urged the court to deem the said grounds as having been abandoned. The Learned Senior Counsel formulated three issues for determination, namely:
(1) Whether the Learned Trial Judge was not right when his Lordship held that the Findings/Recommendations of the Commission of Inquiry set up by the Ogun State Government, the acceptance and the alleged publication of the report of the Commission are not capable of prejudicing the Appellant’s right to fair hearing of counts 1 – 13 of the Information preferred against him. He referred to grounds 2, 3, 4, 5, 6 and 7 of the Grounds of Appeal.
(2) Whether the Learned Trial Judge was wrong when his Lordship held that the trial of the Appellant on counts 1 – 13 by a Judge of the High Court of Ogun State would not constitute an abuse of court process merely because the Appellant had been indicted by a Commission of Inquiry headed by another serving Judge of the same High Court of Ogun State. He referred in this regard to grounds 1, 8 and 9 of the Grounds of Appeal.
(3) Whether the lower court was not right when it held that having regard to the evidence before it, the steps taken by the Commission of Inquiry and the Ogun State Government did not amount to contempt of court. He referred in this regard to ground 12 of the Grounds of Appeal.
It seems to me that the three issues formulated by the Respondent’s Counsel are different from the three formulated by the Appellant’s Counsel only in phraseology. The first issue of both Counsel deal with the question of fair hearing to the Appellant, the second issue of both counsel deal with the question of abuse of process, while the third issue of both counsel deal with the question of contempt of court. Although the issues as formulated by the Respondent’s Counsel are more compact, I will consider the appeal on the basis of the issues formulated by the Appellant’s Counsel for no other reason than that parties tend to slant the formulation of issues to favour their approach to the argument and since the appeal was filed by the Appellant, I think I should follow his slant. It is a matter of preference as there is no sacrosanctity about it in law.
I agree with the Respondent’s Counsel that none of the issues formulated by the Appellant relates to grounds 10 and 11 of the Amended Grounds of Appeal. Grounds 10 and 11 relate to the concept or principle of double jeopardy. While I agree with the said submission of the Respondent’s Counsel, it has to be said that once issues for determination have been formulated, those issues become the reference point with regard to the arguments in court. The issues supercede the grounds of appeal. Focus has to be on the issues for determination and consequently grounds of appeal that have no issues attributable to them should be of no concern to the court. The Supreme Court in the case of Momodu & Ors vs. Momoh & Anor.(1991) 1 NWLR part 169 p.608 at p.621 put it this way:
“Issues for determination in a Brief of Argument though necessarily based on the grounds of appeal are meant and considered to have displaced the grounds of appeal. Hence the argument in the brief follows the issues for determination and not the grounds of appeal directly. The issues may comprise the substance of the grounds of appeal or may contain less.”
I will therefore pay no attention to ground 10 and 11 of the grounds of appeal and shall instead, focus on the issues for determination earlier mentioned.
With regard to issue 1 which Appellant’s Counsel anchored on grounds 2, 3, 4, 5, 6 and 7 of the Grounds of Appeal, it was submitted that an accused person has a constitutional right to Fair Hearing/Fair Trial by the Court or Tribunal under Section 36(4) of the 1999 Constitution as amended. It was argued that having regard to the wide media publicity given to the findings of the Commission of Inquiry and the Commission’s report by the Ogun State Government, the constitutional right to fair hearing of the Appellant in respect of counts 1 – 13 before the lower court has been or is likely to be compromised.
The Learned Senior Counsel contended that notwithstanding the fact that the Appellant’s trial in respect of counts 1 – 13 was on-going, the Commission of Inquiry headed by a serving Judge strongly condemned the Appellant on the issues pending before the court below. The condemnation by the Commission he submitted was accepted by the Ogun State Government which published the Commission’s Report and its White Paper on it in the Punch Newspaper, a newspaper that has wide circulation in Nigeria. Learned Senior Counsel wondered whether in the light of the Findings/Recommendations in the Commission of Inquiry which has been accepted by the Ogun State Government and which was given wide publicity by that government, the Appellant can still enjoy his right to fair trial on counts 1 – 13. The Learned Senior Advocate further wondered whether the Appellant can still enjoy the presumption of innocence from the point of view of reasonable members of the public. He answered his rhetorical questions with a capital No with an exclamation mark for emphasis.
The Learned Senior Counsel cited Ibori vs. Federal Republic of Nigeria (2009) 3 NWLR Part 1128 at P.320; Archibong vs. Cross River State Newspaper Corporation & Anor. (2001) 22 WRN 53 at 84 – 86; Metropolitan Properties (FGC) Ltd. vs. Lannon & Ors. (1969) 3 ALL ER 304 at 310 and Senator Adolphus Wabara vs. FRN (2010) LPELR CA/A/7C/2006 delivered on 1/6/2006 and submitted that the Government of Ogun State had followed the path of persecution of the Appellant through publication of the Report of the Commission of Inquiry and the White Paper in the Punch Newspaper in respect of counts 1 – 13 before the court below and therefore those counts should be struck out as the Appellant’s right to fair trial in respect of those counts had been compromised and likely to be compromised.
The Learned Senior Counsel argued that the learned trial judge construed the requirement of Fair Hearing from the view of the trial judge as opposed to the impression of reasonable minded members of the society.
It was submitted that the Appellant having been found culpable of the allegations by the Commission of Inquiry and the State Government, it would be easier according to him, for a camel to pass through the eye of a needle than for reasonable minded members of the public to be persuaded on the innocence of the Appellant on the issues covered by counts 1 – 13 faced by the Appellant in the lower court. It was submitted that once the publication is likely to make reasonable members of the public who read it to believe that the Applicant actually committed the offence in counts 1 – 13 of the information, the Appellant’s right to fair hearing under Section 36(4) of the 1999 Constitution as amended would have been breached. Learned Senior Counsel queried whether there are still issues that can be fairly tried by the lower court in respect of counts 1 – 13 in the light of the pronouncements of a serving Judge who headed the Judicial Commission of Inquiry on the said Issues, as well as the endorsement of the findings by the Ogun State Government through its White Paper. He submitted that the applicant’s right to fair hearing has been compromised both by the Executive and the Judicial arms of the Ogun State Government as to justify the striking out of the said counts 1 – 13. He urged this court to resolve issue 1 in the Appellant’s favour.
The Respondent’s counsel as expected disagreed with the submissions of the Appellant’s Counsel. Respondent’s Counsel Rotimi Jacobs SAN after a review of the history of the case, submitted that it would appear that the Appellant was not comfortable with the Report of the Commission of Inquiry, the acceptance of the Report by the Ogun State Government, the issuance of a White paper by the State Government and the publication of the Report. It was submitted that the EFCC which is prosecuting the case against the Appellant is an Agency of the Federal Government and is not under the control of the Ogun State Government. Section 1 of the Economic and Financial Crimes Commission (Establishment) Act 2004 was referred to. Respondent’s Counsel described as misconceived, the argument of the Appellant’s Counsel that there is an agency relationship between the Ogun State Government and the EFCC. It was argued that since the offences alleged against the Appellant in counts 1 – 13 are prescribed under the Laws of Ogun State, the EFCC of necessity applied to the Attorney-General of Ogun State for a fiat to prosecute the case. Besides Respondent’s Counsel submitted, the fiat given to the EFCC to prosecute is general in scope and does not bear the specific name of the Appellant. It was submitted that the activities of the Ogun State Government and of the Commission of Inquiry set up by it, are different from and independent of the activities of the EFCC and consequently, there is no way that the report of the commission of Inquiry can influence the prosecution of Appellant.
Learned Senior Counsel submitted that Hon. Justice A. A. Akinyemi who headed the Commission of Inquiry though a serving Judge, was not playing the role of a Judge when he acted as Chairman of the Commission of Inquiry. It was submitted that the duty of Hon. Justice Akinyemi in the Commission was purely an administrative one and therefore the Findings/Recommendations of the Commission cannot be elevated to a judicial decision.
The Respondent’s Counsel contended that the issue of the breach of the Appellant’s right to fair hearing does not arise in that the Appellant is not saying that he has not been given an opportunity to be heard in respect of counts 1 – 13 or that he has been denied an opportunity to make any point before the lower court or that the lower court is partial in the handling of the proceedings before the court.
The Respondent’s Counsel submitted that the mere fact that the Appellant was indicted in the published Report is not enough to suggest that his right to fair hearing would be breached in respect of counts 1 -13. He cited the case of Attorney General of the Federation vs. Dawodu (1995) 2 NWLR part 380 p.712 at 724 where Muntaka-Coomasie JCA as he then was, stated that it was “nonsensical and preposterous for the Appellant to suggest that the right to fair hearing of the 4th defendant has been breached merely because there is a civil action going side by side with the criminal trial” and submitted that it stands to reason that the proceedings before a mere Commission of Inquiry and its findings cannot interfere with the Appellant’s right to fair hearing.
On the publicity given to the Report of the Commission of Inquiry, it was argued that the case of Senator Adolphus N. Wabara & Ors. vs. Federal Republic of Nigeria an unreported decision of the Court of Appeal in Appeal No. CA/A/7/C/2006 delivered on the 1st of June 2006 upon which the Appellant placed heavy reliance, can be distinguished from the present case in that the facts and circumstances of the case are quite different from the ones in this case. In any case, the Court of Appeal decision in Wabara’s case, it was submitted, has been overturned by the Supreme Court in Federal Republic of Nigeria vs. Wabara (2013) 5 NWLR Part 1347 P.331.
Respondent’s Counsel argued that the fact that the report of the Commission was published would not affect the fair hearing of the case before the lower court. He cited R. Abu Hamza (2007) 3 ALL ER 451 at 471 – 472; EX Telegraph (1993) 2 ALL ER 971 at 978. He urged the court to discountenance Appellant’s Counsel’s Submission on issue 1.
Before I go on to consider the arguments in the Appellant’s Reply Brief, I think it is apposite to comment on the remarks of the Appellant’s Counsel with regard to the number of pages of the Respondent’s Brief. It is the view of the Appellant’s Counsel that the Respondent’s Brief violated the provisions of Order 18 rule 6(a) of the Court of Appeal Rules 2011 which limits the number of pages of a Brief to not more than 30 pages. It was argued that the Rules of court are meant to be obeyed and therefore that the Respondent’s Brief should be disregarded. Appellant’s Counsel went on to respond to the arguments of the Respondent’s Counsel in the Respondent’s Brief in the event that this court refuses to disregard the Respondent’s Brief.
Order 18 rule 6(a) of the Court of Appeal Rules 2011 states that except where the court directs otherwise, every brief to be filed in the court shall not exceed 30 pages. Order 18 rule 6(c ) further states that every brief which does not comply with the page limit and page size requirement shall not be accepted by the Registry for filing. Now, where a Brief that exceeds 30 pages is accepted by the Registry for filing who is to be blamed? The Registry or the Litigant or the Counsel? Where Counsel writes a brief that exceeds 30 pages, who is to be blamed? The Counsel or the Litigant? Where at the point of adopting the Brief of Argument where both Counsel are in court, the opposing Counsel fails to raise any objection on the number of pages, who is to be blamed? By his silence has the opposing Counsel not acquiesced? There is no gainsaying the fact that no one is perfect and that even the very best do make mistakes. That is why the courts sometimes overlook infractions of the rules
especially where to insist otherwise would lead to a failure to consider a case on the merits. Indeed, the court loathes to visit the sins of Counsel on the litigant. The views of the Supreme Court in Akinpelu vs. Adegbore (2008) 10 NWLR part 1096 p.531 at p.557 is quite instructive on this. Said the court, per Tobi JSC
“It is the law that mistakes of counsel cannot be visited on the client. The client is a novice in the law. Counsel is the expert and the only duty of the client is making available to counsel the evidence and the payment of the professional fees. Once he does that, he cannot be made responsible for any mistakes in law”.
It will surely be wrong to have the Respondent pay the heavy price of not having his Brief and thus his case considered on the merits simply because the Brief exceeded the prescribed number of pages especially where the Registry failed in its duty of refusing to accept it and where there is no chance of remedying the situation through a failure to draw the courts attention to the flaw before adoption of briefs. I have had a look at the number of pages of the Respondent’s Brief and I am really at a loss as to what the hullabaloo is all about. The Respondent’s brief has exactly 30 pages! Page 30 is where the Respondent’s Counsel signed and dated the Brief. There are two extra pages containing the list of authorities. In my thinking, those pages are just an appendix. I have looked at Order 18 rule 3 of the Court of Appeal Rules 2011 which deals with the Forms and Contents of a brief and it does not state or suggest that the list of authorities forms part of the content of a Brief. Even if I am wrong on this and the list of authorities are considered as part and parcel of the brief, the de minimis rule will surely apply considering that the pages in excess are a mere two in number.
In any case, as I have earlier noted, it will be wrong not to consider the Respondent’s case on the merits should the list of authorities be added to make the brief exceed 30 pages as refusal to consider it will tantamount to visiting the sins of Counsel on the Litigant.
Now to a brief consideration of the Appellant’s arguments in the Reply Brief: on the Respondent’s Counsel’s submission that the Commission of Inquiry preceded the filing of information against the Appellant, it was submitted that the Appellant’s complaint is that during the pendency of counts 1 – 13 in the lower court, the Commission of Inquiry considered matters that bordered on the said counts 1 – 13, made a Report and that report together with a white paper was published.
On the agency relationship of the EFCC, Appellant’s Counsel insisted that for the purpose of counts 1 – 13, the EFCC is an agent of the Ogun State Government. He further argued that by reason of the fiat granted the EFCC, the body is a delegatee of a power donated by the Attorney-General of Ogun State. The following cases were cited: Delta Steel (Nig.) Ltd. vs. ACT INCOR. (1999) 4 NWLR Part 597 p.53 at p.63; Laah vs. Opaluwa (2004) 9 NWLR part 879 p.558 at 572; Ironbar vs. CRBDA (2004) 2 NWLR part 857 p.411 at 431; Bamgboye vs. University of Ilorin (1999) 10 NWLR part 622 p.290 at 329; Okoroma vs. Uba (1999) 1 NWLR part 587 p.359 at 387 and 388.
On the issue of fair hearing it was submitted that it is not the assurance given by a Judge that determines the fairness of a trial but the perception of a layman who is not lettered in the law. It was submitted that a situation where a serving Judge of Ogun State who headed the Commission of Inquiry has found the Appellant culpable on the issues to be tried in counts 1 – 13 does not guarantee fairness of trial. The acceptance of the findings of the Commission of Inquiry and the subsequent publication of same, it was reiterated, will also result in the unfairness of the trial.
On the approach to another court of Ogun State for a judicial review of the decision of the Commission of Inquiry, it was submitted that the Appellant was acting within his constitutional right. The following cases were cited in support; Governor of Imo State vs. Amuzie (2009) 13 NWLR Part 1157 P.34 at P.80; Nwaogwugwu vs. President Federal Republic of Nigeria (2007) 6 NWLR Part 1030 p.237 AT 271; Ugwu vs. Ararume (2007) 12 NWLR Part 1048 P.367 at 450.
Appellant’s Counsel submitted that contrary to the submission of the Respondent’s Counsel, publication in the newspaper is an unacceptable means of informing the public of the acceptance of the findings of a Commission of Inquiry by a State Government. The proper means he contended is through a White Paper.
Appellant’s Counsel reiterated his earlier submission that the test of fairness of a trial is not to be measured from the knowledge of a Judge or a person knowledgeable or learned in the law but is measured by the impression of an average minded member of the society. He cited Wappah vs. Mourah (2006) 18 NWLR Part 1010 P.18 at P.48; Abiola vs. Federal Republic of Nigeria (1995) 7 NWLR Part 405 P.1 at p.23.
The main argument of Appellant’s Counsel with regard to issue 1 above is that having regard to the publication in the Punch Newspaper of the findings/recommendations of the commission of Inquiry and the Ogun State White Paper thereon, the constitutional right to fair trial of the applicant in respect of counts 1 – 13 of the Information filed against him before the lower court has been or is likely to be compromised.
The publication in the Punch Newspaper per se is not the crux of the matter, it seems to me. It is the condemnatory content of the publication that the Appellant feels will compromise his right to fair hearing on counts 1 – 13 in the Information preferred against him, judged from the standpoint of an average person in society that the Appellant is concerned about. Appellant’s counsel cited a number of cases to justify his argument that given the facts of the case the Appellant cannot get a fair hearing. Of particular persuasive force to Appellant’s Counsel would appear, in the case of Senator Adolphus Wabara vs. Federal Republic of Nigeria (2010) LPELR CA/A/7/C/2006 delivered on the 1st of June, 2006 portions of which were copiously reproduced in the Brief.
Although Wabara vs. Federal Republic of Nigeria & Ors. is cited in the Appellant’s Brief as (2010) LPELR – 4940 (CA), when I looked it up in the Law Pavilion Electronic Law Report, the Wabara vs. Federal Republic of Nigeria & Ors. I found reported there is different from the one the portions of which were reproduced in the Appellant’s brief. Obviously, there must be a mistake somewhere. There is however no doubt that the Wabara vs. Federal Republic of Nigeria reproduced by Appellant’s Counsel went on appeal to the Supreme Court. The Supreme Court overturned it in Federal Republic of Nigeria vs. Wabara (2013) 5 NWLR part 1347 p.331. In overturning it, the Supreme Court at p.353 of the report stated thus:
“It becomes incumbent at this stage to restate that courts do not waste their precious time in determining academic or hypothetical questions that are either totally unconnected or far removed from the real issues in controversy between the parties.
An examination of all the other issues parties here assert are relevant to the determination of the appeal discloses that they are irrelevant, diversionary or at best constitute defences or matters best raised and dealt with at trial. The lot are hereby discountenanced”.
The discountenanced lot which the Supreme Court considered as “irrelevant, diversionary or at best …. defences or matters best raised and dealt with at the trial” include issue 6 formulated by the Appellant in the appeal before it and issue (iii) formulated by the Respondent also in the said Appeal before the Supreme Court. The said issues before the Supreme Court read as follows:-
That of the Appellant:
“Whether the Learned Justices of the Court of Appeal misdirected themselves when they held that the learned Judge did not consider each of the applications before him and that fair hearing rights of the Respondents were compromised.”
That of the Respondent:
“Whether the Learned Justices of the Court of Appeal were right in holding that the national broadcast of the President of Nigeria was a communication to the learned trial judge by a person in command influence over him and that the broadcast was a clear example of the manipulation of the judiciary and judicial process by the executive”.
In view of the judgment of the Supreme Court in Wabara’s case on appeal part of which judgment is reproduced above, the Court of Appeal decision in Wabara’s as cited before us is not a good authority in support of the Appellant’s position.
As earlier mentioned, the position of the Appellant is that an average man in the society who saw the publication of the Commission of Inquiry Report and the White Paper of the Ogun State Government published in the Punch Newspaper will come to the view that the Appellant’s right to fair hearing in counts 1 – 13 before the lower court has been or is likely to be compromised. Is this position of the Appellant reflective of the correct legal position?
There is a legal personality known as the reasonable man. He is sometimes also known as a reasonable person or a reasonable citizen. His opinion is usually consulted in courts to solve legal problems. He is an ubiquitous fictional figure of the law. The reasonable man featured in Ibori vs. Federal Republic of Nigeria (supra); Archibong vs. Cross River State Newspaper Corporation & Anor. (supra) and Metropolitan Properties FGC Ltd. (supra), all cited by the Appellant’s Counsel. That reasonable man in some English authorities is the man in the Clapham Omnibus. For those of us in Nigeria who may not know anything about the Clapham Omnibus and the sort of man that takes a regular ride in it, Kayode Eso JSC gave us the Nigerian equivalent of that reasonable man in Adigun vs. Attorney Genera of Oyo State (1987) 1 NWLR part 53 p.678 at p.720. Said his Lordship:
“A reasonable person here may be a pleasant housewife shopping for meal in Sandgrouse …, he may be the ordinary worker in the Kano Native city living on his “Tuwo” or he is the plain woman in Okrika dress”.
Now it is what a reasonable man in the class indicated above thinks about the Appellant’s case in the lower court while observing the proceedings before that court that will be the true test of whether or not the Appellant is having a fair hearing or fair trial. The statement of Ademola CJN in Mohammed vs. Kano NA (1988) 1 ALL NLR 422 encapsulated the guiding principle. In that case, Nigeria’s first Chief Justice of Nigeria said:
“We think a fair hearing must involve a fair trial and a fair trial of a case consists of the whole hearing ….. The true test of a fair hearing it was suggested by counsel is the impression of a reasonable person, who was present at a trial whether from his observation, justice has been done in the case. We felt obliged to agree with him”.
See also Adigun vs. Attorney-General of Oyo State (supra).
From the above statement of the law, it is not what the reasonable man thinks about the fair hearing that the Appellant will get after the reasonable man might have read the Punch publication of the Commission’s Report and the Ogun State Government’s White Paper on it that is to be reckoned with. It is what the reasonable man thinks of the proceedings from his observation while present at the trial that matters.
This is where the Appellant’s Counsel got it wrong. He did not seem to appreciate that the reasonable man has to be present at the trial and that it is the impression he gets from his observations at the trial that is the determinant of whether or not there has been a fair hearing or a fair trial. That the Appellant’s Counsel missed this point is clear from his argument at page 15 and page 16 of the Appellant’s Brief, the relevant portions of which are reproduced below:
Page 15:
“The core issue is the negative effect of these condemnations which were published in the Punch Newspaper on average members of the public who read the publication on the innocence/culpability of the Appellant with respect to counts 1 – 13”.
Page 16:
“Once the publication is likely to make reasonable minded members of the public who read same to believe that the Appellant likely committed the offences in counts 1 – 13 of the information, the Appellant’s right to fair hearing as guaranteed under Section 36(4) of the 1999 Constitution (as amended) would have been breached”.
If the position taken by the Appellant’s Counsel were to represent the position of the law, it is my humble view that virtually every case involving a public figure will be dead on arrival in our courts because of the penchant for sensationalizing things by newshounds especially of matters affecting public figures and celebrities. The courts cannot fail to do justice just because simpletons, fickle minded people and credulous folks believe everything they read in newspaper. Justice is based on evidence presented before the court and a reasonable man in court observing that proceedings follow the proper standards of adjudication cannot query the fairness of a hearing or trial. The reasonable man is no moron or fool.
It seems to me that if the reasonable man’s test as stated in Mohammed vs. Kano NA (supra) is applied, there will be no reason to say that the Appellant’s right to fair hearing has been compromised or likely to be compromised since there is nothing to show that at the hearing so far, anything untoward has happened.
Still on issue 1, Learned Counsel argued about the Agency relationship of the EFCC. I frankly do not see how that argument helps in resolving issue 1. The argument is a veritable will-o-the wisp. I will not pursue it. I am satisfied that issue 1 must be resolved against the Appellant. It is accordingly so resolved.
I now turn to issues 2 and 3 which were argued together. Issue 2 is on abuse of process in that the lower court is trying counts 1 – 13 against the Appellant when the Commission of Inquiry headed by a serving High Court Judge has indicted the Appellant for fraudulent conversion of land/breach of trust. Issue 3 is on contempt of court by the Commission of Inquiry and the Ogun State Government by reason of the fact that the Report of the Commission and the publication in the newspaper was made during the pendency of counts 1 – 13 being faced by the Appellant in the lower court.
On abuse of process, Appellant’s Counsel submitted that the indictment of the Appellant by the Commission of Inquiry and the acceptance of the Appellant’s culpability by the Ogun State Government through the issuance of a White Paper and publication of same in the Punch Newspaper during the pendency of counts 1 – 13 in, the lower court constitute an abuse of process. It was submitted that once a dispute has arisen between a person and the government or authority and their dispute has been brought to court, it is the duty of the government to allow the legal and judicial process to run its full course. The following cases were cited in support: Military Governor of Lagos State vs. Ojukwu & Anor. (1986) 1 NSCC 304 at 311-312; Abiodun vs. C.J. Kwara State (2007) 18 NWLR part 1065 p.109 at p.139; Odogwu vs. Odogwu (1991) 8 NWLR part 208 p.253 at 260.
On contempt of court it was submitted that the Ogun State Government was under a sacred legal duty to refrain from doing anything or taking any step which would have the tendency of affecting the pending matter in the lower court or its outcome and that by failing to uphold that duty, the Ogun State Government was in contempt of the lower court. The Learned senior counsel referred the court to A. G. vs. Times Newspaper Ltd (1973) 3 ALL ER 54 at 72. It was submitted that the Ogun State Government having found itself in contempt of court, must first purge itself of the contempt before it can be given audience in the lower court in relation to counts 1 – 13 in the Information against the Appellant. Military Governor of Lagos State vs. Ojukwu (supra); Fawehinmi vs. A.G. Lagos State (No.2) 1989 3 NWLR part 112 p.740 at 759; R v Gray (1900) 2 QB 26 at p. 40 were cited in aid of the argument.
In the Respondent’s Brief, we were referred to the case of Amaefule vs. The State (1988) 1 NSCC p.669 at 684 on the definition of abuse of process. It was submitted that there was nothing before the lower court to show that the prosecution was lacking in bonafides, It was contended that the mere fact that the Commission of Inquiry set up by the Ogun State Government allegedly made some pronouncements touching on counts 1 – 13 would not preclude the prosecution from filing an application against the Appellant.
On the issue of contempt of court it was submitted that since the publication of the report of the Commission of Inquiry was done in line with the provisions of the relevant statutes and judicial decisions, it cannot amount to contempt of court. It was submitted that the proceedings and Findings/Recommendations of the Commission of Inquiry set up by the Ogun State Government were matters of public interest and therefore can be discussed at large without being in contempt of court. The case of Wellersteriner vs. Moir (1975) 2 ALL ER 217 at 230 was cited in support.
In the Appellant’s Reply Brief it was argued that abuse was narrowly defined by the Respondent. The definition in Saraki vs. Kotoye (1992) 9 NWLR part 264 p.156 at p.188 was cited and relied upon.
On the issue of contempt of court, Appellant’s Counsel reiterated his earlier position on the issue. He urged that the case of Wellersteiner and Moir is distinguishable from this case.
On the issue of abuse of process, I think it will be safe to be guided by the law as stated in Saraki vs. Kotoye (1992) 9 NWLR part 264 p.156 at 188. In that case the Supreme Court per Karibi-Whyte JSC stated thus:-
“The concept of abuse of judicial process is imprecise. It involves circumstances and situations of infinite variety and conditions. Its one common feature is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice …..
But the employment of judicial process is only generally regarded as an abuse when a party improperly uses the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice. This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues. See Okorodudu vs. Okoromadu (1977) 3 SC 21, Oyegbola vs. Esso West Africa Inc. (1966) 1 All NLR 70. Thus the multiplicity of actions on the same matter between the same parties even where there exists a right to bring the action is regarded as an abuse. The abuse lies in the multiplicity and manner of the exercise of the right, rather than the exercise of the right, per se.
The abuse consists in the intention, purpose and aim of the person exercising the right to harass, irritate and annoy the adversary and interfere with the administration of justice, such as instituting different actions between the same parties simultaneously in different courts, even though on different grounds”.
Clearly the multiplicity of actions referred to in the passage above is with reference to actions in courts. Regarding the alleged abuse of process in this case, the multiplicity of actions is not in courts. Indeed the term action in the passage denotes a civil or criminal judicial proceeding which a Commission of Inquiry is certainly not. Again the subject matter of the Commission of Inquiry and the matter in court are not the same. For the subject matter of the Commission of Inquiry, see the Terms of Reference as stated in the written address in support of the Motion on Notice dated 10th October 2012 at page 116 – 118 of the Record of Appeal. Furthermore, one cannot speak about the-same opponents because obviously there can be no opponent with regard to a Commission of Inquiry. Clearly therefore the concept of abuse of process is totally off-track in this case.
Turning to the issue of contempt of court, the alleged contempt is due to the fact that the Ogun State Government accepted the Recommendation of the Commission of Inquiry and published its report and the White paper on it in the Punch Newspaper notwithstanding the pendency of counts 1 – 13 against the Appellant in the court below.
Mere publication will not amount to a contemptuous act unless it is calculated to bring a court or a Judge of the court into contempt or to lower his authority or to interfere with the course of justice. Lord Russel C.J. put it this way in R v Gray (1900) 2 QB 36 at 40.
“Any act done or writing published calculated to bring a court or a judge of the court into contempt or to lower his authority, is contempt of court. That is one class of contempt. Further, any act done or writing published calculated to obstruct or interfere with the due course of justice or the lawful process of the courts is a contempt of court. The former class belongs to the category which Lord Hardwick L.C. characterized as as “Scandalising a court or a judge”.
See the Law of contempt in Nigeria (case Book) by Chief Gani Fawehinmi at p.71. The contempt complained about in this case is not in the category of “scandalising a court or a judge”. I am also unable to see how the publication can be said to be one calculated to obstruct or interfere with the course of justice.
On the relationship between a publication and a matter in court, I find as instructive the view of Lord Widgery C J in A.G. vs. Times Newspapers Ltd. (1972) 3 ALL ELR p.1136 at p.1144. Said his Lordship:
“There must… be a relationship between the publication of the comment and its potential effect on the trial. If it is shown that the publisher actually intended to interfere with the course of justice, he can rarely be heard to say that his comment would not have that effect. But in other cases the potential prejudice must be proved or capable of being inferred. The essential element to be proved is that the comment was calculated to interfere with the proceedings”.
The facts in the Times Newspapers case in summary are as follows: Investigation revealed that many mothers who took a drug known as thalidomide during pregnancy had children with serious deformities. The manufacturer of the drug was taken to court in several suits and it agreed to pay a percentage of the amounts claimed in damages in return for the actions being withdrawn from court. In 1972 while negotiations towards settlement were still ongoing, the defendants started to publish a series of newspaper articles on the plight of the thalidomide drug on children. In the said publications, criticisms were also made about the time it was taking to conclude the settlements and the manner of assessment of claims payable in such cases by judges generally. The editor of the newspaper considered that it was in the public interest that the articles be published before the final settlement of the claims. The Attorney-General sought an injunction restraining the publication of the articles on the ground that they were in contempt of court. It was held that the newspaper deliberately sought to influence the settlement by bringing pressure to bear on one party.
In the matter on appeal before us, it cannot be said that the publication of the White Paper and the Commission’s Report in the Punch Newspaper is as strident as in the Times Newspapers case or that its clear objective is to bring pressure to bear on a party. In the Times Newspaper’s case the pressure was brought to bear on the manufacturer of the drug which was a party in cases in court. In this case, the only person that one can say that pressure is being brought to bear upon is not a party but the trial judge. But can a judge be so easily pressured? This is what the learned authors of Halsbury’s Laws of England Fourth Edition have to say on this question at page 13 under the head of “publication tending to influence a court against a party”.
“In the case of a trial by a judge alone, it is only in rare cases that a publication will be held to constitute contempt under this head as it is accepted that judges are capable of guarding against allowing any prejudicial matter to influence them in deciding a case”.
The truism of the above view of the learned authors is confirmed by the words of O. Mabekoje J. in his judgment at page 325 of the Record of Appeal where his Lordship said thus:
“I have also held that the findings of the Commission of Inquiry are different from the live issues before this court and that the fact that the applicant is indicted does not mean that he has been found guilty of a crime. Assuming without conceding that there was adverse publicity regarding the findings of the Commission of Inquiry and the White paper issued thereon as they relate to the subject matters of counts 1 – 13, there is even nothing before the court upon which it can come to the conclusion that the effect of the publicity has been so extreme that it is impossible for the court to disregard it and therefore appropriate to stay the proceedings”.
It is clear from the above that the trial judge is clear about his role of deciding cases based only on evidence before him. I am satisfied from the state of the facts and the law that the Ogun State Government cannot be said to be in contempt of court.
I am satisfied that issues 2 and 3 ought also to be resolved in favour of the Respondent. They are accordingly resolved in favour of the Respondent. In conclusion, I am satisfied that the appeal lacks merit. I dismiss it.
MONICA B. DONGBAN-MENSEM, J.C.A.: My learned brother Obietonbara Daniel-Kalio JCA, has eminently addressed all the issues raised in this appeal. For purposes of emphasis, I would like to expound on the concept of fair hearing which has been accentuated by the Appellant. The Appellant is apprehensive that his right to fair hearing has been infringed and is likely to be compromised by the publication of the findings and recommendation of the Ogun State Judicial Commission of Inquiry into the Land allocation, acquisition, sales and concessions of Government Properties and Administration of the Land Policies, Rules and Regulation between January, 2004 and May, 2011 and the white paper issued by the Ogun State Government on the findings and Recommendation of the Judicial Commission.
The learned senior Counsel to the Appellant declared at pages 10 and 11 of the Appellant’s brief that:-
“Both the Judicial and Executive Arms of Government are unanimous on the culpability of the Appellant with respect to the allegation in counts 1 – 13 of the information…”
It is therefore the submission of the learned senior Counsel, Prof. Taiwo Osipitan leading other learned senior Counsel and other learned Counsel including T. Oyetibo SAN and Mrs. T. Akinlawa SAN, that there was evidently actual bias or strong likelihood of bias in the fair trial of counts 1-13 as to justify striking out of the said counts.
The cases cited in support of this sweeping allegation include the following:-
i. Ibori v. FRN (2009) 3 NWLR (Pt.1128) p.320 @..
ii. Archibong v. Cross River State Newspaper Corp. & Am. (2001) 22 WRN 53 @ 84 – 86
iii. Metropolitan Properties C. (F.G.C.) Ltd. v. Lannan & Ors. (1968) 3 ALL ER 304 @ 310
The often quoted dictum of Lord Denning MR that
“Justice must be rooted in confidence and confidence is destroyed when right-minded people go away thinking “the Judge is biased”
Stands out like a sore thumb. However, in this appeal no right-minded people “have been cited as having walked “…away thinking…. The judge is biased”!
I must say that in recent times, I wonder whether the legal principle of subject “sub judice” has been abolished from our legal system. Usually, a matter which is “sub judice” should be protected from the media, it is expected to be treated with some measure of restraint in reportage on the subject while proceedings are on-going. However, the rider/caveat which qualifies this expected restraint is that the publication is “calculated to impugn the fairness of the trial”. While some publications can be so obvious, the intention of some are not so easily discernible. The focal point then is not whether there is a publication on the subject matter but whether such publication is “calculated to impugn the fair trial” of the pending suit. The courts which are not given to speculation will have to be swayed with legal evidence to procure a finding that a certain publication is calculated to impugn fair trial. The publication of the report of an inquiry on the subject matter of the trial of the Appellant could be intimidating. That is a subjective factor which would not impact legally on the subject of consideration. The case of Mohammed v. Kano Native Authority (1986) 1 ALL NLR 422 on fair hearing finds no application on the facts of this appeal strict senso. The reasonable man in Mohammed’s case “is that man who was inside the court and who observed the conduct of the proceedings from the beginning to the end.
Thus, when the proceedings are taken out of the domain of the court of trial to the public domain, the test of fair hearing becomes unruly like the unbridled horse. It is not the public that does the evaluation and adduction of value to the adduce evidence; it is the court and that is done only upon credible legal evidence.
At the enquiry, all manner of extraneous matters could be considered. All such must be eliminated through the legal sift. The matter is still pending and Judgment is yet to be delivered. How has it been demonstrated that the conduct of the court is such that fair-hearing has been compromised? Even if the report of the enquiry is tendered in court, the Appellant has a right to cross examine and shred the said report into pieces. By the application of evidential jurisprudence cross-examination can render the reports unreliable and not worthy of belief by the court. These are issues of law which can be pursued up to the Supreme Court.
The ball does not rest in the goal post of the learned trial judge. Further, the impression of the reasonable man referred to in adjudication is not deciphered from news paper publications. It is the impression of that reasonable man who was in court ail through the proceedings keenly and dispassionately observing the trial. Such things as would be obvious are the actual and perceived conduct of the proceedings and of the judge.
The test of fair hearing is not the effect of a publication on the average members of the public but the opinion of a reasonable man who watches the proceedings in court. In court, the tenets of fair hearing as expressed and applied in the twin pillars of natural justice in Latin maxim of audi alteram partem and nemo judex in cau sa sua”. These principles are the core of section 36 of the 1999 Constitution FRN, 1999 as amended. (See also Azuokwu v. Nwokanma & Anor. (2005) LPELR – 690 (SC) Pp. 27 – 28)
In the case of Chukwuma v. The Federal Republic of Nigeria (2011) LPELR – 863 (SC) my lord justice Rhodes-Vivour JSC, @ Pp. 46 – 47; held that
“Once there is no infringement of the principle of natural justice….the trial is fair…”.
My lord Mohammed JSC who prepared the read Judgment in the case of Chukwuma v. The Federal Republic of Nigeria @ Pp. 23 – 24 set out the ingredients of the concept of fair-hearing in these terms:-
“The concept of fair hearing postulates a hearing in which the authority is fairly exercised, that is consistent with the fundamental principles of justice embraced within the conception of due process of law. Contemplated in a fair hearing is the right to present evidence, to cross examine and to have findings supported by evidence. It thus, implies that both sides be given an opportunity to present their respective case and that each side is entitled to know that case is being made against it and given an opportunity to reply thereto”.
Extensive media publication perse, does not therefore constitute an impediment to a fair-hearing. The Apex court found no such disability in the case of FRN v. Nwabara (2013) 5 NWLR (Pt.1347) p.332.
In the case of R v. West (1996) 2 Cr App R 374 @ 306 Lord Taylor CJ explained the judicial attitude to adverse publication in these terms:-
“…But however lurid the reporting, there can scarcely ever have been a case more calculated to shock the public who were entitled to know the facts. The question raised on behalf of the defence is whether a fair trial could be held after such intensive publicity adverse to the accused. In our view, it could. To hold otherwise would mean that if all allegations of murder are sufficiently horrendous so as inevitably to shock the nation, the accused cannot be tried. That would be absurd. Moreover, providing the judge effectively warns the jury to act only on the evidence given in court, there is no reason to suppose that they would do otherwise. In (R v. Kray (1969) 53 Cr. App R 412 at 414, 415), Lawton J said: “The drama….of a trial almost always has the effect of excluding from the recollection that which went before”. That was reiterated in (R v. Coughlan (1976) 63 Cr. App R. 33 @ 37. In (Exp Telegraph Plc. (1993) 2 All ER 971 at 978, (1993) 1 WRN 980 at 987, I said.
A court should credit the jury with the will and ability to abide by judge’s direction to decide the case only on the evidence before them. The court should also bear in mind that the staying power and detail of publicity, even in cases of notoriety, are limited and that the nature of trial is focus jury’s minds on the evidence put before them rather than on matters outside the court room”. (emphasis mine)
The Appellant is well insulated by the adversary principles of, the justice applicable in our courts. By the provision of section 36 of the Constitution, it is the prosecution which has the burden to establish the guilt of an accused person.
The entire suit of the Appellant is based on speculation, hypothesis. The argument of the learned silk for the Appellant clearly attest to this in the reference to the “core issue” being the “negative effect” of these condemnation “…published in the Punch Newspaper on average members of the public…”
With the above, I adopt the lead Judgment and I too hereby dismiss this appeal as lacking in merit.
HARUNA SIMON TSAMMANI, J.C.A.: I had the advantage of reading before now, the judgment just delivered by my learned brother, O. Daniel-Kalio, JCA. I agree with the reasoning and conclusion of my learned brother that the appeal has no merit and it should be dismissed. I however wish to add a voice of my own, especially on the issue of fair hearing.
Learned Counsel for the appellant had contended that, notwithstanding the glaring damaging effect of the publication of the commission’s Report and the Government white paper in the Punch Newspaper on the fair trial of the counts, the learned trial judge adopted a wrong test of fair hearing, thereby arriving at the wrong conclusion that fair trial of counts 1-13 will not be compromised or jeopardized. That the learned trial judge construed the requirement of fair hearing from his view, as opposed to the impression of reasonably minded members of the society.
After reviewing the cases cited before him on the issue, the learned trial judge concluded at page 320 lines 11 – 18 as follows:
“I am of the considered view that no right-minded member of the society who has relevant knowledge of the facts of this case will find it difficult to see that the findings of the commission of inquiry are mere indictment which are not relevant to the live issues to be decided by this court and that justice will manifestly be done to the parties notwithstanding the publication complained of. I therefore hold that in the circumstances of this case, a fair trial of the applicant with regards to counts 1 – 13 is not impossible.”
now, the right to fair hearing is a constitutional right guaranteed to all persons coming before our courts. That right is enshrined in Section 36 of the 1999 Constitution. That right is founded on the twin pillars of natural justice couched in the latin matim “audi alteram partem” and “nemo jude in causa sua”. There are certain basic criteria and attributes to gauge whether or not a trial or hearing has been fair. These are:
(i) That the court shall hear both sides not only in the case, but also in all material issues in the case before reaching a decision which may be pre-judicial to any party in the case;
(ii) That the court or tribunal shall give equal treatment, opportunity and consideration to all concerned;
(iii) That the proceedings shall be held in public and all concerned shall have access to and be informed of such place of public hearing;
(iv) That having regard to all the circumstances, in every material decision in the case, justice must not only be done but manifestly and undoubtedly be seen to have been done.
To determine whether the above stated basic criteria have been satisfied by a court hearing a case, the right of the person to be affected in the following matters must be observed:-
(i) his right to be present throughout the proceedings and hear the evidence against him;
(ii) to cross-examine or otherwise confront or contradict all the witnesses that testify against him;
(iii) to have all documents tendered in evidence at the trial, read before him;
(iv) to have disclosed to him the nature of all relevant material evidence, including documentary and real evidence, prejudicial to him;
(v) to know the case he has to meet at the hearing and to have adequate opportunity to prepare for his defence; and
(vi) to give evidence by himself, call witnesses, if he chooses to, and make oral submissions wither personally or through a counsel of his choice. See Adigun v. A.G. Oyo State & Ors. (1987) 1 NWLR (Pt.53) P.678, Deduwa v. Okorodudu (1976) 10 S.C. p.329; Baba v. N.C.A.T.C. (1991) 5 NWLR (Pt.192) P.388; Kotoye v. C.B.N. (1989) 1 NWLR (Pt.98) P.419 and Usani v. Duke (2004) 7 NWLR (Pt.871) P.116 at 152 – 153.
It is my view that once a trial has been conducted in accordance with the above stated criteria, a hearing will be said to have been fair. It has been held in numerous cases that, the true test of fair hearing is the impression of a reasonable person who was present at the trial, whether from his observation, justice has been done in the case. In Pam v. Mohammed (2008) 16 NWLR (Pt.1112) p.1 at 69 paragraphs A – G, a reasonable person was described in the following words:
“The reasonable person and the impartial observer mean the same. They mean a complete stranger, an unbiased person to the proceedings. A reasonable person is a person with reason having a faculty of the mind by which he distinguishes truth from falsehood, good from evil. A reasonable person is a fair, proper and just and unbiased person. An impartial observer is not partial. He favours neither the plaintiff nor the defendant. He is disinterested in the matter, as he treats both the plaintiff and the defendant alike. He is an unbiased person. Both, the reasonable person and the impartial observer are like hypothetical legal standard for determining or judging fairness, fair play and equity. The test of the reasonable man in Nigerian Courts is no more the man at the Clapham junction in London but are in anywhere in the Nigerian cities.”
It would be noted therefore that the test of a reasonable person in Nigerian Courts is not that of a person whose minds and thoughts are coloured by political, sectional or other primodial considerations. Such a reasonable person is one who is able to weigh his observations objectively. Fundamentally, such reasonable person is one who is present in court at the trial and must therefore arrive at a conclusion from his observations in court and not based on other events outside the court. He is not every Nigerian who had read the Punch Newspaper containing the publication of the Government White Paper, but had not availed himself of the opportunity to be in court to observe the proceedings in respect of the counts complained of. He must be one who is in court observing the proceedings, before he arrives at the conclusion whether despite the publication in the Punch Newspaper, the Appellant had a fair trial in Court. See Okafor v. A.G. Anambra State (1991) 6 NWLR (Pt.200) p.659, Alh. Isiyaku Mohammed v. Kano N.A. (1968) 1 N.L.R. P.424 at 426; Ndukauba v. Kolomo (2005) 4 NWLR (Pt.915) P.411 and Olumesan v. Ogundepo (1996) 2 NWLR (Pt.433) P.628. In that respect, once from the observation of that reasonable person, the trial court has followed the procedure laid down for such hearing and has not violated any of the principles of natural justice, it can hardly be argued that an accused person has not had a fair hearing or trial as intended by the constitution. I say so because, the Supreme Court had stated in several of its decisions that a fair hearing in relation to a case means that the trial of a case was conducted in accordance with the relevant laws and rules of court. This right commences from the time the accused person is brought before the court and his plea taken; and continues to avail the accused until delivery of judgment. See Odessa v. F.R.N. (No.2) (2005) 10 NWLR (Pt.934) P.528 at 556; Maikyo v. Itodo (2007) 7 NWLR (Pt.1034) P.443.
In the instant case, the Appellant has not established any single act of violation of his right to fair hearing committed by the court below. His argument is simply that, because the commission headed by a serving judge of the Ogun State High Court condemned him, and which report was accepted by the Ogun State Government who proceeded to publish same in the Punch Newspaper, it will have a negative effect in the minds of the public who read the Newspaper, no matter which side the justice of the case swings. I am convinced that learned senior counsel for the appellant are misconceived on the import of the right to fair hearing as enshrined in the Constitution and duly propounded by our courts. The determination of the right to fair hearing is not dependent upon public opinion, but on what actually transpired in court during the hearing as observed by a reasonable person. It is not based on the opinions of members of the public generally who may not be present at the hearing. If it were so, many high profile cases in Nigeria would not be prosecuted considering the spate of Newspaper publications on such issues. Such publications are most times replete with opinions, conclusions and conjectures which may whip up negative effect on uninformed members of the public. That is why our courts insist that fair hearing is not an abstract term that a party can dangle in the judicial process in a bid to avoid prosecution, but one which is real and seen in concrete terms. Accordingly a party who alleges that he was or is likely to be denied fair hearing must prove specific act or acts of such denial and not rely on were conjecture, speculation or suspicion (as in the instant case), which are claims that are merely cosmetic and merely intended to overreach the other side. That is the situation in this case and should not be condoned by any reasonable court or tribunal.
On the issue of abuse of process, it should be noted that, to amount to an abuse of process, the proceeding or step taken in the proceeding complained of, should be one that is lacking in bonafides. It has to be an improper use or perversion of process after it had been issued. In other words, it has to be a malicious perversion of a regularly issued process, civil or criminal, and for a purpose or to obtain a result not lawfully warranted or properly attainable thereby. Amaefule v. State (1988) NWLR (Pt.75) p.238; C.B.N. v. Ahmed (2001) 11 NWLR (Pt.724) p.369 and Okafor v. A.G; Anambra (1991) 6 NWLR (Pt.200) p.659.
Furthermore, it is the subsequent action that will constitute an abuse of process of the court. This is because, it is not the existence or pendency of the previous action that will give rise to the allegation of abuse of process; rather, it is the institution of a fresh action between the same parties and on the same subject matter, when the previous suit or action has not been disposed of that constitutes abuse of process. See Edet v. State (1988) NWLR (Pt.91) p.722; Adesokun v. Adegorolu (1991) 3 NWLR (Pt.293) p.297 and Umeh v. Inu (2008) 8 NWLR (Pt.1089) p.225.
Applying the above state principles to the instant case, the Appellant was arraigned before the Ogun State High Court for sundry criminal offences, amongst which are the 13 counts sought to be quashed. That is in line with the law because, once a person is accused of a criminal offence, the proper place to try him is a Court of Law, where the complaints of his accuser can be ventilated and the accused afforded an opportunity to defend himself. The offences for which the Appellant stands trial before the lower court are offences under the criminal code and therefore triable only by the regular courts established by Law in Ogun State. The Judicial Commission of Inquiry, though headed by a High Court Judge is not a Court of Law. It was therefore not competent to adjudicate the allegations which are criminal in nature. What it did, was at best a fact finding by an Administrative Body, which findings were not subject to appeal to a higher court, but subject to acceptance by the Executive. See Sofekun v. Akinyemi (1980) 5 – 7 S.C. p.1 at 137; and Denloye v. Medical and Dental Practitioners’ Committee (1968) 1 All N.L.R. P.306. That being so, it is my view that the actions in the High Court and in the Judicial Commission of Inquiry are not aimed at achieving the same purpose. While the action at the High Court may lead to a conviction of the Appellant, the action before the Judicial Commission of Inquiry will not and cannot. So, the issue of abuse of process does not arise at all in the circumstances.
It is for these reasons and the fuller reasons contained in the lead judgment that I agreed that this appeal has no merit. It is accordingly dismissed.
Appearances
Prof. Taiwo Osipitan SAN with Tayo Oyetibo SAN, Mrs. Titilola Akinlawon SAN, Deji Enisehin Esq., Sade Adebayo Esq., Ayodeji Awobiyi Esq. and Olumide Aliu Esq.For Appellant
AND
Adebisi AdeniyiFor Respondent
