CORAM

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MOHAMMED MUSTAPHA JUSTICE

FOLASADE AYODEJI OJO JUSTICE

ABDULLAHI MAHMUD BAYERO JUSTICE

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PARTIES

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ODUNEWU KAMORU ADEBAYO

APPELLANTS 

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FEDERAL REPUBLIC OF NIGERIA

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, CONSTITUTIONAL LAW, CRIMINAL LAW AND PROCEDURE, EVIDENCE, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

The appellant was arraigned before the lower court by the respondent on a two count charge dated 8th of October, 2018, of making false statement to a public officer and conspiracy to pervert the cause of justice, pursuant to sections 97 (3) and 96 (a) of the Criminal Laws of Lagos state, 2011. The appellant stood as surety for one Mr. Okey Onyejiako at the office of the respondent, signed all necessary documents, and made a statement undertaking to produce the said accused person anytime he was needed by the respondent. He failed to produce the accused person as promised. The lower court, while reviewing the arguments of counsel, before arriving at its conclusion held that the Appellant had made no reply on points of law while in fact the defendant/appellant had, in response to the prosecution/respondent, filed a reply on points of law dated the 8th of July, 2019. The appellant was found guilty and convicted of making false statement to a public officer contrary to section 96(a) of criminal Laws of Lagos state, but was discharged and acquitted of the charge of conspiracy to pervert the cause of justice contrary to section 97 (3) under the same law. Dissatisfied with his conviction, the appellant has now appealed to this court by a notice of appeal.

 

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HELD

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ISSUES

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Whether the decision of the learned trial Judge ought not to be set aside for being in violation of the appellant’s right to fair hearing as guarateed by section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) in view of the learned trial Judge’s failure to consider/countenance the arguments contained in the appellant’s reply on points of law?

Whether the learned trial Judge was right in convicting the appellant for the offence ofmaking false statement to a public officer?

 Whether the appelant’s right to fair hearing as guaranteed by section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) was not violated by the lower court when it ordered the forfeiture of the appellant’s bail bond without first giving the appellant the opportunity to show cause?

 

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RATIONES DECIDENDI

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FAIR HEARING – THE IMPORTANCE OF FAIR HEARING IN ALL TRIAL

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The right to fair hearing is so fundamental that it is protected and guaranteed under the Constitution of the Federal Republic of Nigeria 1999, as amended. It is indispensable for the purpose of declaring any trial as fair, and the true test is the impression of a reasonable man who was present at the trial whether from his observation, justice has been done in this case; it is for that reason that it is literally cast in stone; See BABA v. NIGERIA CIVIL AVIATION TRAINING CENTRE (1991) 5 NWLR (Pt. 192) 388; DEDUWA v. OKORODUDU (1976) 10 SC 329; OKAFOR v. A.G., ANAMBRA STATE (1991) 2 SCNJ 345 and NALSA TEAM & ASSOCIATES v. NNPC (1991) 11-12 SC 83. – Per Mohammed Mustapha, JCA

 

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COURTS – DUTY OF A COURT TO TAKE INTO ACCOUNT ALL PROCESSES FILED AND ADOPTED BEFORE IT IN THE COURSE OF ANY TRIAL – WHERE THE RIGHT TO FAIR HEARING HAS BEEN BREACHED

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All processes filed and adopted before a court, without exception, ought to be taken into account in the ultimate resolution of the dispute before the court. The court does not have the luxury of picking and choosing which process to consider in this kind of situation, especially in the absence of any valid legal justification. To simply waive away a process filed in the defense of the liberty of the appellant in a criminal trial is, with respect, preposterous. The principle of fair hearing demands that a reply brief, like any other brief, should be considered on the merit. There is no doubt that the failure in this case, to consider the validly filed process amounts to a denial of the Appellant&right to be heard, and constitutes a direct infringement of the maxim of Audi alteram partem, which in effect is a denial of fair hearing; See OTAPO v. SUNMONU (1987) 5 SC 228.

It for this reason, among others, that the supreme court held in appeal No. CA/E/80/88. In GARUBA & ORS V. OMOKHODION & ORS (2011) LPELR -1309(SC) Per CHUKWUMA-ENEH, J.S.C. P.40 that: – "…it is trite that the Court before whom a proceeding is pending or has been completed takes judicial notice of all the processes filed in the proceeding as well as the proceeding itself… as the case may be and so following from this proposition of law all the processes to be relied upon in any application made before that Court in the proceeding are judicially noticed." Per PETER-ODILI, J.S.C in ADALMA TANKERS BUNKERING SERVICES LTD & ANOR V. CBN & ORS (Pp. 61-62 paras. B) It is settled that once there is a breach of the right to fair hearing, the whole proceeding in the course of which the breach occurred and the ultimate decision reached by the lower Court becomes a nullity ab initio; See ANPP v. INEC (2004) 7 NWLR (Pt. 871) 16. For the same reason, this court had cause to hold in VIRGIN NIGERIA AIRWAYS LTD V. ROIJIEN (2013) LPELR-22044(CA) (Pp. 42 paras. D) that: "The failure of the Court to consider and determine the case of a party is a violation of the party&right to fair hearing. And where there is a breach of a Party& Constitutional right to fair hearing, the proceedings are vitiated, thereby requiring the intervention of an appellate court on a complaint of the affected party: Uzuda v. Ebigah (2009) 15 NWLR (Pt. 1163) @ 19 A-D; E-H, 21 F-H. In the instant case, the failure of the Court below to consider and determine the Appellant& case was a breach of the Appellant& right to fair hearing and the consequence of a breach of fair hearing is that the proceedings in the case are null and void: See OMOKHODION V. FRN (No. 2) 2005 (Pt. 934) 10 NWLR 581 @ 609 G-H." Per IYIZOBA ,J.C.A in VIRGIN NIGERIA AIRWAYS LTD V. ROIJIEN (2013) LPELR-22044(CA) (Pp. 42 paras. D) The principle of natural justice enjoins a court to consider and evaluate the entire case put forward by all disputants. Failure to consider or give due consideration to the case of either party or both inevitably leads to a denial of fair hearing, and a miscarriage of justice; see ODI V. OSAFILE (1990) 3 NWLR part 137 page 130. It is important to note that in a situation like this, the appellant does not have to show that he suffered any injury or prejudice by the abhorrent denial of his right to fair hearing, because it is implicit in such denial. Once the right is violated, it does not matter for that matter that the same decision would have been arrived at in the absence of the denial. – Per Mohammed Mustapha, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

2. Criminal Laws of Lagos state, 2011

3. Administration of Criminal Justice (Repeal and Re-enactment) Law 2011

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