CHARLES ALI v. NIGERIA CUSTOMS SERVICE BOARD (2018)

CHARLES ALI v. NIGERIA CUSTOMS SERVICE BOARD

(2018)LCN/10842(CA)

In The Court of Appeal of Nigeria

On Friday, the 16th day of February, 2018

CA/L/222C/2017

RATIO

CONSTITUTIONAL LAW:RIGHT TO FAIR HEARING AS A FUNDAMENTAL RIGHT

The right to fair hearing/trial is undoubtedly a fundamental right guaranteed by the Constitution of the Federal Republic of Nigeria 1999, (as amended) by the provisions of Section 36 thereof. Commenting on the importance of a similar provision (Section 33) under the extinct 1979 Constitution, the Supreme Court of Nigeria held in SIKIRU ADEWUNMI BAKARE Vs. LAGOS STATE CIVIL SERVICE COMMISSION & ANOR (1992) LPELR -711 (SC), as follows: “Section 33 is an entrenchment in the Constitution of the common law principle of the right to fair hearing which is an inherent and necessary element in the determination of every dispute. The provisions of Subsection (1) of the section ensures that the rights and obligations of every citizen is finally and conclusively determined, after hearing the person whose rights and obligations are involved and would be affected by the decision. It is therefore a fundamental and constitutional right of the person whose rights and obligations would be affected by any determination to be heard before such rights and obligation is conclusively determined… Hence the person whose rights and obligations are in issue must be given an opportunity to be heard in defence of such rights by the Court or tribunal established for the purpose.” See also: DINGYADI vs. INEC (2010) 18 NWLR (pt. 1224) 154 SC; and in DUKE Vs. GOVERNMENT OF CROSS RIVER STATE & ORS (2013) LPELR – 1887 (SC), the Court also held as follows: “By the term “fair hearing”, within the context of Section 36(1) of the 1999 Constitution, is that a trial ought to be conducted in accordance with all the legal norms designed to ensure that justice is done at all cost to all the parties. The principle of fair hearing is that both sides must be given an opportunity to present their respective cases. It implies that each side has the right to know what case is being made against it and be given the opportunity to react or respond thereto. Fair hearing does not necessarily mean a hearing that involves oral representation. However, a hearing is fair if all the parties are given opportunity to state their case even in writing. PER TIJJANI ABUBAKAR, J.C.A

JUSTICES

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

Between

CHARLES ALI Appellant(s)

AND

NIGERIA CUSTOMS SERVICE BOARD Respondent(s)

TIJJANI ABUBAKAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Federal High Court, sitting in the Lagos Judicial Division delivered on the 29th day of June, 2016 by KURYA J., in Charge No: FHC/L/323C/2013.

In the charge filed at the lower Court on the 10th day of September, 2013 and contained at pages 1-3 of the Records of appeal, the Appellant and five others were charged by the Respondent on a five count Charge of counterfeiting customs documents and seals contrary to Sections 162 (a) and (d) and 166 of the Customs and Excise Management Act. At the conclusion of trial, the lower Court delivered its judgment found at pages 297A – 297AJ of the Records of Appeal and found the Appellant and the other Accused persons guilty as charged and sentenced him to two (2) years’ imprisonment on each of the five counts and ordered that sentence shall run consecutively meaning that the Appellant was sentenced to ten years’ imprisonment.

?The Appellant became aggrieved and therefore filed a Notice of Appeal containing two (2) grounds of appeal on the 19th day of July, 2016. The Appellant’s Brief of

Argument was filed on the 23rd day of August, 2017 but deemed as properly filed and served on the 11th of October, 2017. The Appellant’s brief of argument was filed by learned Counsel Jiakponna Esq. While the Respondent’s Brief was filed on the 20th day of October, 2017 by learned counsel Salamatu Yakubu.

The Appellant formulated the following two (2) issues for determination:
1. Whether the Court was right in sentencing the accused person when from the evidence before the Court no reasonable Court or Tribunal would have sentenced the accused persons.
2. Whether the Court acted rightly in sentencing the accused person to imprisonment and refused to give them an option of fine.

The Respondent on the other hand formulated sole issue for determination and adopted the Appellant’s issue No. 2 as its second issue for determination. The Respondent’s sole and Appellants second issue adopted by the Respondent are therefore reproduced as follows, issue is therefore reproduced as follows:
1. Whether the prosecutor has proved its case beyond reasonable doubt to justify the conviction of the appellant?
2. Whether the Court acted rightly by

sentencing the accused person to imprisonment and refused to give them on option of fine.

SUBMISSIONS OF COUNSEL
Learned counsel for the Appellant while submitting on the first issue referred to pages 145 – 148 of the Records of Appeal to argue that the 3rd Accused person was convicted on the evidence of PW1 who was not cross examined because of the absence of counsel for the 3rd Accused in Court. Counsel referred to Section 214(2) and 223 of the Evidence Act, 2011 and the decision in ONWUKA v. OWOLEWA (2011) 7 NWLR (PT 713) and OYEGUN v. NZERIBE (2010) 7 NWLR (pt. 1194) 589 to submit that the right to cross examine constitutes right to fair hearing and that since the failure of the 3rd Accused person to cross examine PW1 was as a result of absence of his counsel in Court, the mistake of counsel should not be visited on his client, that the failure to afford the accused the opportunity to cross examine the witness led to denial of fair hearing.

?Learned counsel further referred to pages 131-133 of the Records of Appeal to contend that the finding of the lower Court at page 14 of the judgment that the statements of the accused were tendered

without opposition is misconceived because the voluntary statements of the accused persons were challenged by the learned counsel for the 1st Accused person on the ground that the statements were not voluntary but the lower Court went ahead to admit the statement without considering the objection raised by the accused.

Learned Counsel referred to Section 29 of the Evidence Act, 2011 and the decision in ADEYEMI v. STATE (2014) 7 MJSC (PT 111) 85 to submit that the learned trial Judge erred when he failed to evaluate the voluntariness of the confessional statement of the 3rd Accused person and when he overruled the objection of the 1st Accused person on the confessional statements.

Learned counsel further referred to Section 198 of the Evidence Act, 2011 and the decision in BELLO v. STATE (1967) NMLR 1 to submit that the lower Court should have warned itself before relying on the evidence of PW2, Prince Ndifreke who is an accomplice turned prosecution witness. Counsel referred to A C B PLC v. NWAKWO [2006] 4 FWLR 6257; UKACHUKWU v. PDP (2014) 1 MJSC (pt. 11) 132; AMANCHUKWU v. FRN [2000] 2 SCNJ 33 and TSOKWA MOTORS LTD v. UBA [2008] 2 MJSC 108 to

submit that from the facts of the proceedings before the lower Court, it is glaring that the accused persons did not have a fair trial and that the denial of fair hearing is a serious issue which would render the entire proceedings a nullity.

Learned counsel also referred to pages 294 – 295 of the Record of Appeal to submit that the 3rd Accused person’s right to file written address was foreclosed by the lower Court for no fault of the accused. Counsel referred to HARUNA v. UNIVERSITY OF AGRICULTURE MAKURDI [2006] FWLR (PT 304] 432 and OKOEBOR v. POLICE COUNCIL [2003] FWLR (PT 164) 189 to submit that the purpose of final address is to help the Court appreciate the case of the parties before it and that the Court is duty bound to receive final addresses from both sides. Learned counsel submitted that in totality, the lower Court did not accord the 3rd Accused person the right to fair hearing and accordingly should not have sentenced him in the circumstance.

?On the second issue, learned counsel referred to Sections 162 and 166 of the Customs and Excise Management Act to argue that the lower Court imposed a penalty of 2 years’ imprisonment on the 3rd

Accused person in respect of Count 5 which exceeds the maximum sentence imposed by the law under which the accused persons were charged. Counsel referred to Section 416 of the Administration of Criminal Justice Act 2015 and the decision in EKPO v. STATE [1983] 1 NCR 34 and SLAP v. AG FEDERATION [1968] NMLR 326 to submit that the Court cannot pass a higher sentence than prescribed by law but can impose a lesser sentence.

Learned counsel contended that the punishment for Counts 1 – 4 under the law is imprisonment for two years or a fine of N1000 or both, while the punishment for Count 6 is one-year imprisonment. Counsel referred Section 416 of the Administration of Criminal Justice Act 2015; AFOLABI v. STATE [2013] 13 NWLR (pt. 1371) and AMOSHIMA v. STATE [2011] 14 NWLR (PT 1268) to contend that the accused person is a first offender and therefore the Court ought not to have imposed a maximum sentence on him without an option of fine. Learned counsel argued that the maximum consecutive term that can be given by the Court is four years’ imprisonment. Counsel urged this Court to set aside the judgment of the lower Court and Order a retrial in that the 3rd

Accused person was not accorded fair trial and his sentencing violated Section 416 of the Administration of Criminal Justice Act 2015.

Learned counsel for the Respondent while submitting on the first issue conceded that the lower Court erred in respect of the sentence of two years’ imprisonment on Count 5, learned Counsel for the Respondent conceded that Section 166 of the Customs and Excise Management Act provides for imprisonment for one year, Counsel said the lower Court was in error when it convicted and sentenced the Appellant to two years imprisonment on Count five instead of one year, Counsel conceded that the lower Court acted in excess of its jurisdiction and therefore urged this Court to strike out Count 5 against the Appellant. Learned counsel referred to pages 280 – 281 and 292 – 294 of the Record of Appeal to submit that at the lower Court, the Respondent called four witnesses and tendered thirteen Exhibits and that the lower Court arrived at its decision based on the evidence adduced by the Respondent at the trial. Counsel cited OKORO v. STATE (2012) All FWLR (PT 621) and OMOTOLA v. STATE [1964] 8 NWLR (pt. 361) 24 to submit that the

Respondent proved its case beyond reasonable doubt by proving all the ingredients of the offences against the Appellant.

?Learned counsel referred to the oral and documentary evidence of PW1, PW2, PW3 and PW4 against the accused persons and in particular Exhibits 1 – 12 to argue that the prosecution adduced substantial credible evidence against the accused to establish the offence of conspiracy and that the evidence was not challenged or discredited under cross examination and therefore reliable. Counsel referred to pages 128 – 131 of the Record of Appeal to argue that there was no objection to Exhibits 4, 5, 6, 7, 8, and 9, the voluntary confessional statements wherein the 1st – 6th Accused persons admitted the commission of Counts 1 – 4 of the charge. Learned counsel relied on SHEHU v. STATE (2010) All FWLR (pt. 523) 1841; IGRI v. STATE [2012] All FWLR (PT 653) 1826 at 1836 – 1939, paras. H – B and OLABODE v. STATE [2009] All FWLR (pt. 500) 607 at 621, paras. B – C to submit that Exhibits 4, 5, 6, 7, 8 and 9 form part of the case of the prosecution. Counsel urged this Court to hold that the prosecution proved its case against the accused beyond

reasonable doubt to justify the conviction of the Appellant.

Submitting on the second issue, learned counsel for the Respondent said the learned trial judge convicted the accused persons within the confines of the law and that Section 416 of the Administration of Criminal Justice Act 2015 was not at all violated because it is discretionary and not binding on the Court. Counsel referred to FRED EGBE v. DAVE JUSTICE ADEFARASIN & S.O. ILORI (1985) 1 NWLR (PT 3) 549 at 550; JIJEH v. ONWUACHI [1993] 1 NWLR (PT 188) 467 at 496, Ratio 2 and ALHAJI KARIMU OKEWUNMI v. F. A. SODINKE (2002) FWLR (PT 97) 24 to submit that the trial judge did not exercise any discretion in sentencing the Appellant and the other Accused persons, learned Counsel said in matters of exercise of discretion, the trial Court cannot be compelled to exercise such discretion in a particular way. Learned counsel further contended that the lower Court acted rightly by sentencing the Appellant without an option of fine and urged this Court to dismiss the Appeal, and affirm the decision of the lower Court.

RESOLUTION
I took into account the Appellants grounds of appeal as contained in

the Notice of Appeal, the issues crafted therefrom by the parties as well as the argument canvassed by the respective counsel in this appeal; and I am of the view that the issues for determination nominated by learned Counsel for the Appellant are apt for the purpose of setting the stage for discourse in this appeal. In other words, the issues for determination crafted by the Appellant in this appeal are good enough and therefore capable of resolving the issues in controversy between the contending parties, I therefore adopt them as the issues to resolve in this appeal.

The argument by learned counsel for the Appellant with respect to the first issue is three-pronged. One is that the Appellant was convicted based on the evidence of PW1, whom the Appellant did not have opportunity to cross examine. The second is that the voluntary statements of the Appellants were challenged by the 1st Defendant’s counsel as not being voluntary but the lower Court admitted same without verifying whether the statement was voluntarily made or not. By these complaints, the Appellant raised a fundamental issue relating to the right of the Appellant to fair hearing.

Learned Counsel for the Appellant also contended that Appellant’s right to file written address was foreclosed by the Court through no fault of the Appellant, thereby leading to denial of Appellant fair hearing.

rights and obligations would be affected by any determination to be heard before such rights and obligation is conclusively determined… Hence the person whose rights and obligations are in issue must be given an opportunity to be heard in defence of such rights by the Court or tribunal established for the purpose.”
See also: DINGYADI vs. INEC (2010) 18 NWLR (pt. 1224) 154 SC; and in DUKE Vs. GOVERNMENT OF CROSS RIVER STATE & ORS (2013) LPELR – 1887 (SC), the Court also held as follows:
“By the term “fair hearing”, within the con of Section 36(1) of the 1999 Constitution, is that a trial ought to be conducted in accordance with all the legal norms designed to ensure that justice is done at all cost to all the parties. The principle of fair hearing is that both sides must be given an opportunity to present their respective cases. It implies that each side has the right to know what case is being made against it and be given the opportunity to react or respond thereto. Fair hearing does not necessarily mean a hearing that involves oral representation. However, a hearing is fair if all the parties are given opportunity to state their case even

in writing.”

It automatically goes without saying that the right of a party to cross-examine a witness of an adverse party is an inviolable constitutional right of such a party to fair hearing. see: NUHU vs. OGELE (2003) 18 NWLR (pt. 852) 251; and MAGAJI Vs. OGELE (2012) LPELR – 9476 (CA). It is therefore the duty of the Court to ensure that every party before it is afforded an opportunity to cross-examine the witness for the other side or the opponent. See YAKUBU vs. ADAMAWA STATE URBAN PLANNING AND DEVELOPMENT AUTHORITY & ORS (2013) LPELR -22077 (CA). In OKEREKE & ANOR vs. HON. MATTHEW IBE & ORS (2008) LPELR – 4714 (CA), this Court held as follows:
“… The right to cross-examine a witness is within the rubric of the right to fair hearing guaranteed under Section 36(1) of the 1999 Constitution. It is a material ingredient of the right to fair hearing. See the case of Ogolo v. Fubara (2003) 11 NWLR (pt. 831) 237 – 262 B – C where the apex Court held thus: “Cross examination is a right available to parties in litigation and it cannot be taken away.” It needs to be stressed at this juncture that the maxim audi alteram partem, is to the

effect that both sides to litigation must be heard before a decision is made… The right to fair hearing does not stop with the parties being present in Court it includes a right to be heard at any material stage of the proceeding…. Let me say at this stage that the right to fair hearing is constitutionally guaranteed by Section 36(1) of the 1999 Constitution, therefore it cannot be sacrificed on the altar of expediency.”
See also: PRP vs. INEC (2004) 9 NWLR (pt. 877) 24; OLUMESAN vs. OGUNDEPO (1996) 2 NWLR (Pt. 433) 628. Where it is found that there is a breach of a party’s right to fair hearing, such breach can vitiate the entire proceedings at the lower Court. See F.R.N. vs. AKABUEZE (2010) 17 NWLR (Pt. 1223) 525 SC; VICTINO FIXED ODDS LTD vs. OJO (2010) 8 NWLR (pt. 1197) 486, where the Supreme Court reiterated that a denial of the right to be heard including in my view, the right to cross-examine an opponent’s witness, or be granted unfettered access to materials for the purpose of preparation of defence is a breach of constitutional right, and therefore contrary to natural justice, equity and good conscience.

?As I stated earlier in this

Judgment, the Appellant’s complaint under this issue is three-fold and I shall consider them based on the facts on the settled record before this Court. Relevant to the complaint on failure of the Court to allow the Appellant cross-examine PW1 is the proceedings of 5th March, 2014, found at pages 143 to 146 of the record of appeal, wherein the following transpired:
“Parties: Accused all 6 present.
Appearances: J. I. Ajakaiye (esq.)
Adeji (Mrs.) Prosecutor
Akobundu Ehiemera (Esq.) with
Gwanade Aderoju (Esq) for 1st, 2nd, 5th and 6th Accused.
Adebaye Adekoya (Esq.) for 4th Defendant.
Anthony Aikhamahea (Esq.) for 3rd Accused.
Court: This case was adjourned yesterday for continuation of Cross Examination by the Learned Counsel to 1st, 2nd, 4th and 6th Respondent.
The witness is reminded of his oath.
Cross Examination of Pw1 Contd.
I do not know whether one Ibrahim Audu contacted the 1st Accused when I got the information I went to No. 5 Railway Apapa sinveland.
The Hacker I took to Abuja are not related to the case.
The Seal found in the office occupied (fake seals of NGG) in the premises

occupied by 2nd, 5th and 6th Accused. The Seal is the authority to make the fake papers look genuine. It was found in possession of the 1st, 4th and 6th Accused.
I said I was invited from Abuja to Lagos and take over investigation from the enforcement Unit Apapa and Tin Can Port.
3rd Accused counsel: We cannot proceed with Cross Examination because we not aware of today’s date. The file to this case is not with me for a date we are ready to put up the witness bill.
Court: All the other counsels have said they cannot proceed with the Cross Examination today. It is unfortunate that this is the 3rd time this case would be adjourned for Cross Examination. It is unheard off before any Court. From the day the case it been heard, there seem to be no fair trial by the Defence counsels. In any case, in the interest of justice and to show that justice is not only been done but appears to have been done I shall reluctantly allow another adjourned which shall be the very last.
On the next adjourned date if the counsels cannot cross Examination the witnesses there right to Cross Examine would be foreclosed in accordance with the set decision. Meanwhile

the witness is hereby stood down. All Accused bail continues
Case further adjourned till tomorrow the 06th March 2014 in accordance with the Directives that criminal trials be conducted from day to day.”
SIGNED
HON. JUSTICE MUSA H. KURYA
JUDGE
05/03/14.

The above proceedings prima facie leave me in no doubt that the complaint of the Appellant that he was not given an opportunity to cross-examine PW1 is obviously without merit. As a matter of fact, from the records, the learned trial Judge stated in explicit terms that it is the defence including the Appellant that kept on making futile attempts to frustrate the speedy conclusion of the trial. The learned trial Judge noted that at the instance of the Defence, the proceedings had been adjourned up to three times for cross-examination, the learned trial Judge then remarked that if the Defence failed to take advantage of the opportunity to cross-examine PW1 on the next adjourned date, which was the next day, their right to cross-examine would be foreclosed. On the 6th day of March 2014 when the Court reconvened, the learned Counsel for the Appellant, was not in Court to cross examine

PW1, this obviously led to failure by the Appellant to cross examine, and the learned trial Judge having clearly stated on the 5th day of March 2014 that if the Appellants Counsel failed to appear on the next adjourned date to cross examine PW1, Appellants right to cross examine would be foreclosed, the learned trial judge, in line with his order of 5th March 2014, foreclosed the Appellant’s right to cross-examine the witness.
See pages 147 to 148 of the record of appeal. I find nothing wrong with the decision of the learned Trial Judge, the trial Court cannot wait for a party forever, or compel an unwilling litigant to cross examine a witness. I think the learned trial Judge in the instant case granted all necessary indulgence to the Appellant, where opportunity is granted to a party to cross examine a witness, such a party must hurry up to take advantage of the opportunity, it will amount to negative thinking for the same party to be passive, docile and in-active and then resort to over dramatizing denial of fair hearing. A litigant must not resort to sensation or engage in aggrandizing and embellishing denial of fair hearing when in fact all facilities

were extended to such litigant by the Court to ensure fair trial. I am told when a horse is forced to the river, the same horse cannot be forced to drink. The lower Court did its very best by granting adjournment, if Appellant failed to utilize the opportunity, it would be totally unfair to blame his lapses on the Court, I think the learned trial Judge deserves to be commended. At page 145 of the records of appeal, the learned trial Judge said, “in any case, in the interest of justice and to show that justice is not only been (sic) done but appears to have been done, I shall reluctantly allow another adjourned (sic) which shall be the very last. On the next adjourned date if the Counsels Cannot Cross examination (sic) the witness there right to cross examine would be foreclosed….”. I think the Appellant has nothing useful to urge on the issue of denial of fair hearing with respect to cross examination. The Appellant in my view failed to avail himself of the ample opportunity provided during trial to cross-examine PW1; he cannot therefore be heard to complain of denial of fair hearing.

With respect to the complaint that the trial Court foreclosed the

Appellant’s right to file written address, from the records before us, I found that just as the Appellant failed to take advantage of the opportunity given to him to cross-examine PW1, he also failed to file his written address as directed by the Court. As the proceedings of 24th May, 2016 at pages 262 to 275 of the record of appeal show, the matter was adjourned to 29th June, 2016 for adoption of written addresses but on that day, the Defence Counsel including the Appellant’s counsel informed the Court that their final written addresses were not ready because the Appellant had not perfected their briefs and therefore sought for another date to file their written address. In the trial Court’s Ruling at pages 294 to 295 of the record of appeal, the learned trial judge bemoaned the conduct of the defence, which he noted were geared towards frustrating the proceedings from the onset. In fact, in the judgment delivered by the learned trial judge found at pages 297A to 297AJ, the learned trial judge lamented as follows and I quote:
“Today we are in the year 2016 and this is a year 2013 case. It is a criminal charge to determine the rights and freedom of six

Accused persons which ought to be determined within a reasonable time. However, due to the conduct of the Accused persons and their counsels that could not be done within three years.
I blame the delay on the act and conduct of both Accused persons and their counsel because the delay were self-impose so as to make the Court proceed to judgment and “AUDI ALTERAM PARTEM” be invoked as grounds of Appeal. I frown at such and/or conduct especially by legal practitioner who are themselves Ministers in the temple of Justice….”

Clearly, the learned trial judge never lost focus and the impression that the Defence including the Appellant intentionally set out to come up with several intrigues, antics, and schemes designed not only to delay and frustrate the proceedings before the trial Court but also exploit the scheme as an avenue to raise alarm and cry wolf that Appellant’s right to fair trial had been trampled upon, notwithstanding the facts showing that to the contrary it is the Appellant that made a futile attempt to thwart the effort of the Court at ensuring quick and effective expeditious determination of the case before it. Where, a party, as in the

instant case, fails to avail himself of the opportunity of filing his written address, and is foreclosed by the Court, such a party cannot be heard to complain, the party does so at his own frivolous frolic. In BILL CONSTRUCTION CO. LTD Vs. IMANI & SONS LTD/SHELL TRUSTEES LTD (A JOINT VENTURE) (2006) LPELR 782 (SC), ONNOGHEN, JSC (now CJN) held:
“It is settled law that where a party is given ample opportunity to present his case within the confines of the law but he chooses not to utilize same, he cannot later be heard to complain that his right to fair hearing has been breached. What the Court is enjoined by the provisions of Section 36 of the Constitution to do is to create a conducive atmosphere for the parties to exercise their right to fair hearing by holding the scales of justice fairly but firmly without fear or favor, affection or ill will. Having provided the required atmosphere, the duty on the Court stops there. It becomes the duty or choice of the party seeking to enforce his civil rights and obligations to utilize the opportunity so created. He cannot be compelled to do so. Where he decides to present his case in an acceptable mode and as

required by the rules and substantive law, he would be heard. On the other hand, where he chooses not to present his case he cannot be heard to complain that he was not heard, as in the instant case.”
The question of fair hearing is not a magic wand that can be waived at the Court to cow the Court into reaching a decision in favor of an Appellant whose complaint is baseless. TOBI, JSC, (of blessed memory) in MAGAJI v. NIGERIAN ARMY (2008) 8 NWLR (pt. 1089) 338; (2008) LPELR – 1814 (SC) at 40, paras D – G observed as follows:
“It has become a fashion for litigants to resort to their right to fair hearing on appeal as if it is a magic wand to cure all their inadequacies of the trial Court. But it is not so and cannot be so. The fair hearing constitutional provision is designed for both parties in the litigations, in the interest of fair play and justice. The Courts must not give a burden to the provision which it cannot carry or shoulder. I see that in this appeal. Fair hearing is not a cut-and-dry principle which parties can, in the abstract, always apply to their comfort and convenience. It is a principle which is based and must be based on the

facts of the case before the Court. The principle of fair hearing is helpless or completely dead outside the facts of the case.”

I must be quick to add that, where a particular incident of obvious denial of fair hearing is made out in the records of the Court, this Court must extend particular consideration to the specific breach, this comment is made in consideration of the proceedings of the 28th day of January 2014, when trial commenced at the Federal High Court, learned Court for the Appellant in this Appeal requested for proof of evidence to be served on his client, the 3rd Accused now Appellant before us. The trial Court at pages 118-121 of the records of appeal took the objection by learned Counsel for the Appellant, and instantly over ruled the objection and held the view that by the provisions of Section 33(2) of the Federal High Court Act, Laws of the Federation of Nigeria 2004, in trial before the Federal High Court, service of proof of evidence was not mandatory. The proceedings of the day run as follows:
“All Accused present:
Appearances: J. I. Ajakaiye Esq. prosecutor.
O. I. Barrah Esq. with A. Ehiemera (Mrs) for 1st, 2nd, 5th

and 6th Accused.
M. A. Onoh (Esq) for the 4th Accused.
Mark Anthony Anchara for the 3rd Accused.
Ozioma Ahaoma for surety to 3rd Accused.
Prosecutor: The matter is for trial. We are ready to proceed.
Plaintiff witness 1: Christian, speaks English, sworn by the Holy Bible.
Counsel to 1st, 2nd, 3rd, 5th and 6th Accused.
Plaintiff witness: We are not served with the proof of evidence.
So we cannot proceed with the case today.
Counsel to 3th Accused: Yes I associate myself with the submissions by the learned Counsel to 1st 2nd 3rd 5th and 6th Respondents. we were not served with precise of evidence. All we were served with is the charge sheet.
Counsel to 3rd Accused: I align myself with the Learned Counsel submission. I need the proof of evidence.
Prosecutor: I never promised that I will provide any proof of evidence with the provisions of the Federal High Court Rules Section 33(2) Cap F12 LFN 2004. The Jurisdiction of this Court in criminal cases is summary jurisdiction. The requirement of filling proof of evidence is not there; one need not file any proof of evidence. Whatever will be tendered will be made

available to the Defense.
Court: When this case was mentioned for hearing, the Learned counsel to the Accused objected orally to the Court taking plaintiff witness 1 on the grounds that they were not served with the proof of evidence which they cited in the 1999 Federal Constitution which provides that a person charged with a criminal offence still be provided with adequate time and facilities to defend himself.
In his reply, the learned prosecutor argued that the law established the Federal High Court made it a Court of summary jurisdiction citing Section 33 (2) of Cap F12 LFN 2004 which he submits does not provides any proof of evidence.
I agreed with the learned prosecutor that the Federal High Court, been a Court of summary jurisdiction, does not make it mandatory for the Accused to be served with any proof of evidence. It is not even made a requirement.
The Plaintiffs in other words is to say that all the cases we have tried in the Federal High Court without proof of evidence is not and (sic) valid.
In any case this is a Court of Justice. Whether by rule of Court or by establishing the Court of (sic) injustice will be method

(sic) either party to the suit, the Court is to do substantial Justice.
I do not see proof of evidence being a requirement in the prosecution of cases before the Federal High Court. Neither do I see any injustice method (sic) the Accused by not serving them with the proof of evidence.
I find the preliminary objection fails (sic). The Prosecutor is to proceed with the plaintiff witness 1 just sworn to give evidence.”

The above extract from the proceedings of the lower Court show very clearly that the Appellant in the instant appeal (1st Accused person at the trial Court) was not served proof of evidence, and learned counsel for the Appellant at the proceedings of 28th day of January 2014 requested to be served the proof of evidence, the learned Counsel for the Respondent while addressing the Court in response to the request said in summary trials, the prosecution had no duty to serve proof of evidence, relying on the provisions of Section 33(2) of the Federal High Court Act 2004, and the learned trial Judge instantly agreed and discountenanced the objection to the continuation of trial by the Appellant, and ordered that trial should

proceed without serving the Appellant with the proof of evidence. A Judge as the acknowledged repository of the law has the duty at all times in the discharge of his judicial duties to parties to ensure that justice is not only done to the parties but is seen to be transparently done. The Court must accord parties basic opportunity to be heard in a matter that is devoid of appearance of unfairness in a trial.
The law is fully settled that even in summary trials before the Federal High Court an accused person must be aware of what he is coming to meet in Court, this is perhaps the main basis for the decision in UWAZURIKE vs. FRN (supra), that scanty summary of the evidence to be relied on by the Prosecution shall be served on the Accused, and where the accused seeks for further details the Court may in its discretion consider making an order that the materials sought by the accused be made available. The situation in the instant appeal is that apart from the bare charge against the Appellant nothing else was served on him, and when he made efforts to obtain the evidence, the Court did not make the opportunity available, a hearing can only be seen

to be fair when all the parties are granted equal opportunity, in a trial where one of the parties is refused access to material documents, or bare and scanty information on what he is coming to meet in Court, certainly the trial will be faulty and therefore defeat the principles of natural Justice, see: JOSEPH AGBAHOMOVO & ANOR vs. APATA EDUYEGBE & ORS (1999) LPELR-224 (SC). I think one of the attributes of fair hearing is fairness and impartially in the way proceedings are conducted. I must say at once that, the Appellant in the instant appeal exercised all reasonable diligence but the lower Court saw no reason in the application by the Appellant. To hold that the Appellant is not entitled to any scanty evidence of what he is coming to meet in Court is a misconception of the provisions of Section 33(2) of the Federal High Court Act, and I must hold that an accused person is entitled to know what he is coming to confront in Court, a criminal trial must not be shrouded in mysteries, an accused person must not be left to embark on logical deduction or guess-work on what he is coming to meet in Court. Where an accused person says nothing was

served on him beyond the paper containing the charge against him, the trial Court has a duty to ensure that such an accused person obtains basic information on what he is coming to meet in Court. I think the lower Court engaged in over-drive when the learned trial judge refused Appellant’s request.
In view of all I said therefore, the Appellant in the instant appeal was denied fair hearing by the lower Court, and on this ground alone, this appeal must be allowed.
Once there is denial of fair hearing, the proceedings so conducted in breach of fair hearing must be declared a nullity. The proceedings before KURYA J, of the Federal High Court in FHC/323C/2013 leading to the conviction and sentence of the Appellant on the 29th day of June 2016 Constitute a nullity, and are hereby accordingly set aside, and the charge is accordingly struck out and the Appellant is accordingly discharged.

Having declared the trial nullity and discharged the Appellant, I do not think it is proper to proceed to deal with other issues in this appeal, the necessity for so doing has become obviated.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: The leading

judgment of my learned brother, Tijjani Abubakar, JCA, which has just been delivered was made available to me in draft.

The issue thrust up for determination in the appeal have been exhaustively considered and resolved in the leading judgment. The manner of resolution of the issues are in accord with my views; I adopt the same with nothing further to add.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have read the lead judgment of my learned brother, TIJJANI ABUBAKAR, JCA before now and I find that he has covered the field and brought out the salient issues at stake. I therefore agree with the reasoning and conclusion reached therein.

Indeed from the facts of this case, the fundamental human right of the Appellant as provided by Section 36 (6) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) has been breached and it therefore attracts a nullity of the entire proceedings of the lower Court. See the cases of KOLEOSHO v. FRN (2014) LPELR – 22929 (CA), per UWA, JCA at pages 17 – 20, paras F – A; JOSEPH v. THE STATE (2013) LPELR – 22604 (CA) where it was held that compliance with this provision

of the Constitution is mandatory and failure to so do will render the whole trial a nullity.

Also in the case of OKOYE & ORS v COP & ORS (2015) LPELR 24675 (SC), the Supreme Court of Nigeria on the right of an accused person held thus:
“…the evidence against the accused, including statements of witnesses for the Prosecution, would be necessary for the preparation of his defence. So they are “facilities” within the meaning of the said Section 36 (6) (b)…It is in accord with the intention of the legislature to provide a person charged with a criminal offence with sufficient opportunity to prepare his defence and to prevent surprises being sprung on him at trial. This is fundamental, as the accused person could be facing the loss of his life or personal liberty…”
See also the case of AKABOGU v. THE STATE (2016) LPELR – 40929 (CA) where the Court held that:
“…I am humbly of the strong opinion that any person charged whether summarily or by information to face criminal charges at the High Court is entitled as provided by the Constitution to details of the offence including the proofs of evidence by the police in order to

facilitate his defence to the charge. See OLABODE v. THE STATE (2009) 11 NWLR (PT 1152) 254 at 258, ADENIYI v. THE STATE (2001) 25 WRN 117 at 120.”

?In view of this, I too allow the appeal. The trial, conviction and sentence of the Appellant in suit No: FHC/323c/2013 is hereby declared a nullity and is accordingly set aside. The charge is also struck out and the Appellant discharged. I abide by the consequential orders made in the lead judgment.

Appearances:

S. E. OkekeFor Appellant(s)

Salamatu YakubuFor Respondent(s)

Appearances

S. E. OkekeFor Appellant

AND

Salamatu YakubuFor Respondent