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By Hameed Ajibola Jimoh, Esq.
Respectfully, I have observed the attitudes of some of our Nigerian judges or magistrates to trial proceedings especially where the person concerned is not a ‘Senior Advocate of Nigeria’ (herein after referred to as SAN). These Judges and magistrates, with due respect to them, only allot or allocate insufficient time to the Non-SAN lawyer or litigant to examine his witness or cross examine the witness of the opposing party or co-litigant in the suit. Many of such time, the Court with due respect, becomes impatient, thereby hurrying the examining lawyer or litigant to round-off with his ‘examination (whether examination-in-chief or cross-examination or reply to cross-examination’ or the Court would shut him down of such opportunity.
Many of such occasions, the lawyer becomes destabilized from asking questions germane or necessary or important to his case or the case of his client! In fact, notwithstanding the facts that the ‘evidence’ extracted from such examination would have been very important for the said lawyer and or litigant, the Court would not hesitate to hurry such Non-SAN or litigant to end his examination of the witness (though, the case or examination by a SAN can last for hours even more than two (2) hours without the Court hurrying such SAN)! This opinion is not a case against SANs, but to show why such ‘insufficient time allocated or allotted by the Court to such non-SAN or litigant could be very inimical or prejudicial to the just determination of such case and denial of ‘fairness’ of hearing or fair hearing in that case in respect to him, thereby leading to ‘miscarriage of justice’. Furthermore, this paper also provides some recommendations to such Non-SAN or litigant who might find himself in this situation with the Judge or magistrate. Hence, this topic.
First of all, it is no doubt that for the purpose of extracting evidence in support of ‘pleadings’ and or ‘countering’ evidence of the opposing litigant, ‘sufficient time’ is important to examine a witness to extract such evidence. For instance, too, proof of evidence in a criminal trial is by ‘proof beyond reasonable doubt’ while in civil trial, it is by ‘proof by preponderance or evidence of probability’, hence, while the ‘onus or responsibility of proving a fact in issue does not shift from the Complainant to the Defendant in a criminal case, such ‘onus or responsibility of proving such fact in issue shifts from a particular litigant to the other and vice-versa in a civil suit’. I humbly rely on the following case laws to the above submissions that I made: in ‘ADEREMI ADEROUNMU VS FEDERAL REPUBLIC OF NIGERIA LER (i.e. Legalpedia Electronic Report) [2019] CA/L/782C/2018 where the Court of Appeal of Nigeria re-echoed the trite position of law as follows ‘The position of the law is trite. It is that in criminal cases, the burden is entirely on the prosecution to prove the guilt of the Defendant. This burden does not shift if the Respondent must secure conviction. This is because, there is the presumption of innocence in favour of the Defendant as he has no obligation in law to prove his innocence. The duty is squarely on the shoulder of the Respondent to prove all the ingredients of the offence to secure conviction. This burden does not shift at all. In Ankpegher vs. State (2018) LPELR-43906 (SC), the apex court per Kekere-Ekun, JSC at pages 24-25 held: “There is no doubt that in criminal proceedings the onus of proof lies on the prosecution throughout the trial and does not shift. In other words, there is no burden on the accused person to prove his innocence. It is also trite that the standard of proof in criminal proceedings is proof beyond reasonable doubt but not proof beyond the shadow of a doubt. See: Section 135 of the Evidence Act, 2011; Ikpo vs. The State (2016) 2-3 SC (Pt. III) 88; Oseni vs. The State (2012) 5 NWLR (Pt.1293) 351 @ 388 F-G; Woolmington vs. D.P.P (1935) AC 462.” Similarly, in Ugboji vs. State (2017) LPELR-43427 (SC), Sanusi, JSC at page 28 held: “The law is well settled, that the prosecution always has the burden to prove the commission of an offence (See Section 138 of the Evidence Act 2011 (as amended). This tallies with time honored principle of law that who asserts must prove. In criminal cases the law places the burden of proof on the prosecution. The standard of such proof is proof beyond reasonable doubt, in order to establish that an accused person had really committed the offence or the wrongful act. See the case of Ani v State (2000) 6 SCNJ 98 at 107.” One more case will not harm. In State vs. Ajayi (2016) LPELR-40663 (SC), Okoro, JSC at page 50 held: “It is trite that in criminal the proceedings, the onus is always on the prosecution to establish the guilt of the accused beyond reasonable doubt and the prosecution will readily achieve this result by ensuring that all the necessary and vital ingredients of the charge or charges are proved by evidence. See; Yongo vs. COP (1992) 4 SCNJ 113, (1992) LPELR – 3528 (SC); Uche Williams vs. The State (1992)10 SCNJ 74. It must be noted that under our system of criminal justice, accused person is presumed innocent until he is proved guilty and the burden of proof is always on the prosecution. See Okputuobiode & Ors vs. The State (1970) ALL NLR 36, (1970) LPELR – 2524 (SC).”
Furthermore, in regard to the burden of proof in civil suit, the Court of Appeal of Nigeria has reaffirmed the principles as follows in the case of LABOUR CONGRESS & ORS. vs. AJIYA INTERGRATED SERVICES LTD. & ANOR.(2020) LCN/14247(CA) while considering ‘Whether burden of proof must be discharged satisfactorily by a party who asserts the existence of a fact before it can shift; Whether evidence elicited under cross-examination not borne out of pleaded facts can discharge burden of proof(Issue is mine)’ “After a careful reading and consideration of the respective submissions of the learned Counsel for the parties as to the burden of proof in civil matters, I have no hesitation than to agree with them that the law is firmly settled that the burden of proof is not static as in criminal matters but shifts from one party to another as the party asserting the existence of a fact is required to discharge the burden placed on him/her which if successfully done; the burden then shifts to the other party to adduce evidence in rebuttal to the evidence of the asserting party as to the non existence of a fact asserted by the opponent. In fact, the Apex Court in NNAEMEKA OKOYE & ORS. v. OGUGUA NWANKWO (2014) LPELR-23172 (SC) re-echoed the position of the law as to how the burden of proof in civil matter is discharge when it held thus:- “The burden of proof in civil cases has two distinct meanings, viz: (a) the first is the burden of proof as a matter of law and pleadings usually referred to as the legal burden or burden of establishing the case; (b) the second is the burden of proof in the sense of adducing evidence usually described as the evidential burden. While the legal burden of proof is always stable or static, the burden of proof in the second sense i.e. evidential burden of proof may oscillate constantly according as the scale of evidence or the other preponderates. In civil cases, while the burden of proof in the sense of establishing the case initially lies on the Plaintiff, the proof or rebuttal of issues which arise in the course of proceedings may shift from the Plaintiff to the Defendants and vice-versa as the case progresses…” Per Odili, JSC, (pages 25-26, paragraphs F-E). See also FEDERAL MORTGAGE FINANCE LTD. v. EKPO (2004) 2 NWLR (Pt. 856) 100 at 130 per OLAGUNJU, JCA; BALOGUN v. LABIRAN (supra); NWOSU v. UDEOJA (1990) 1 NWLR (Pt. 125) 188; ADEGOKE v. ADIBI (1992) 5 NWLR (Pt. 242) 410 to mention but a few. Also, it is the law that a claimant can only succeed on the strength of his case, it is equally settled that such a claimant, which must necessarily include a counterclaimant, is entitled to rely on any fact or evidence in the defendant’s case (in this case defendant to counterclaimant’s case) that supports his case. See Akinola v. Oluwi (1962) 1 SCNLR 351, Alao v. Ajani (1986) NWLR (PT 451) 802; Chukwueke v. Okoronkwo (1991) 1 NWLR (PT 587) 412 @ 422.” Per BOLOUKUROMO MOSES UGO, JCA (Pp 36 – 40 Paras A – C).
Respectfully, in my humble submission, the decisions in the above cited authorities are in line with the provisions of Sections 131-134 of the Evidence Act, 2011 and particularly in Section 133 provides that: “133(1) In civil cases, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to a any presumption that may arise on the pleadings. (2) If the party referred to, in Subsection (1) of this section adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with. (3) Where there are conflicting presumptions, the case is the same as if there were conflicting evidence.” Section 134 thereof on the other hand, stipulates that: “134. The burden of proof shall be discharged on the balance of probabilities in all civil proceeding.” See Pali vs. Abdu (2019) 5 NWLR (Pt.1665) 320 at 334, paragraphs A-E, per Eko, JSC.’.
I must however note that, in my humble view, the conducts of trials or proceedings of a court is at the ‘discretion’ of the Judge, nevertheless, such discretion must be used ‘judicially and judiciously’. It has been held by our Courts that ‘it is the general position of the law that a court while exercising its discretion must do so judiciously and judicially. While the exercise of discretion is at the instance of a court and must be respected by the appellate court, a court can interfere with the exercise of the discretion if it is not exercised judiciously and judicially.’. This was held to be the decision of the Supreme Court in BANNA VS TELEPOWER (NIG) LTD (2006) 7 S.C. (PT 1); (2006) LPELR-1352(SC). In fact, an appellate court will interfere with findings of fact of a court below or a trial court where such findings are ‘perverse’ and a decision is said to be perverse where it has occasioned a miscarriage of justice. See the cases of: Missr v Ibrahim (1975) 5 S.C. 55, Incar Ltd. V Adegboye (1985) 2 NWLR (pt. 8) 453 Ramonu Atolagbe v Shorun (1985) 1 NWLR (pt. 2) 360.
Furthermore, in my humble submission, ‘trials’ are ‘symbiotic’ with advocacy! Hence, a Judge (or magistrate) that limits a Non-SAN lawyer to an insufficient time to examine his witness in my respectful view, is no more an ‘umpire’ that a Judge or the Judge ought to be, rather, has descended into the ‘arena’ of the trial and forming one of the disputing parties in the suit, which a Judge ought not to be by all sense of judicial ethics. I humbly submit with due respect to such Judge, that such a Judge is no more than to be termed ‘BIASED’ or having ‘abused his judicial power vested in him law as a Judge’! Whereas, ‘a Judge is not to be a Judge in his own cause (i.e. known in the Latim maxim as ‘nemo judex in causa sua’)’. The word ‘bias’ in its ordinary meaning, is an opinion or feeling in favour of one side in a dispute or argument. It is leaning or acting in favour of one side in a dispute, resulting in the likelihood that the court so influenced will be unable to hold an even scale. Bias means slant, personal inclination, preference, or one-side inclination. It also means a pre-conceived opinion, a pre- disposition to decide a cause or an issue in a certain way, which does not leave the mind perfectly open to conviction. Bias creates a condition of mind which sways judgement and render open conviction. Bias creates a condition of mind which sways judgment and renders a judge unable to exercise his functions impartially in a particular case. In the determination of a likelihood of bias, the test is not subjective but objective. In other words, it is from the point of view of a reasonable man who happened to be present in the court and watched the proceedings. See: THE NIGERIAN CONSITUTIONAL LAW, ESE MALEMI, Princeton Publishing Co. Lagos, First Edition, 2006, pages: 276 and 277. Therefore, one of the elements of a fair hearing is as guaranteed in section 36(6)(d) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) thus which is the right to examine in person or by his legal practitioner the witnesses called by the prosecution. This includes the right to confront his accusers and their witnesses and the opportunity to contradict their evidence. See: Ese Malemi (op.cit.) at page 298.
Furthermore, in my humbly submission, the abuse of discretionary powers by such Judge cannot be said to stand to protect ‘fairness’ in a hearing or trial rather it turns such hearing or trial up-side down prejudicially! In R V Askew, (1768) 98 ER 139 at 141, Lord Mansfield stated that the exercise of discretion was not confined to the courts and it imports a duty on the person exercising it to be ‘fair, candid and unprejudiced, not arbitrary, capricious, or biased, much less warped by resentment or personal dislike’. See: Ese Malemi (op. cit.) at page 375. Also, Lord Halsbury LC in the case of Sharp v Wakefield (1943) 2 All ER 560 at 564, stated the law thus ‘Discretion’ means when it is said that something is to be done within the discretion of the authorities, that something is to be done according to the rules of reason and justice, not according to private opinion, according to law, and not humour. It is not to be arbitrary, vague and fanciful, but legal and regular. And it must be exercised with the limit, to which an honest man competent to the discharge of his office ought to confine himself: Rooke’s Case (1509) 77 ER 209. Wilson v Rastall (1792) 100 ER 1283’. See: Ese Malemi (op.cit.) at page 376. Therefore, in my humble view, even though the allotment and or allocation of a specific time to a witness or Counsel or litigant and the conduct of proceedings in a court is at the discretion of the Judge presiding over the proceedings, it is my humble submission that such a judicial discretion must be exercised fairly, reasonably and according to law i.e. judicially and judiciously. See: Saraki v Kotoye (1990) 4 NWLR (pt. 143), p 144, SC.
Respectfully, the point that I am laboring to make herein is the importance of ‘evidence’ to ‘pleadings’ in a trial or proceedings which warranted the ‘examination of the witness’. Hence, I humbly pray our Courts and or Judges and or Magistrates to always exercise patience in regard to the examination of witness in Court. More so, it has been held by our courts in a plethora of case laws that ‘evidence is the basis of justice and it is well settled that courts of law can only act on the basis of evidence. It would be invidious if the courts were at liberty to decide issues in controversy between parties otherwise than on basis of evidence placed before them’. See: Ibrahim v Shagari (1983) ALL NLR 507.
For avoidance of doubt and to exhibit that importance of the ‘evidence’ extracted from the examination of a witness, which is a support and or credence to the provisions of the Evidence Act, 2011, to the provisions that ‘he who asserts must prove’. This, in other words, is a proof by ‘credible evidence’. This evidence must not be found missing to support a pleadings or facts in issue. More so, as held by the Courts, to the effect that ‘facts not proved goes to no issue’ and as of law, an averment not supported by evidence goes to no issue and same is deemed abandoned and liable to be either discountenanced and or struck out by the Court’. The appellate court held in this regard of my submissions thus ‘Of course, where a party fails to lead evidence at the trial where the trial was founded on pleadings, he is deemed to have abandoned his pleadings and whatever concessions which might have been reached at the point of pre-trial conference, except where such points or aspect of the pleadings had expressly admitted the case of the opponent (which can be founded and relied upon by the opponent). This is because pleadings (facts) are not synonymous with evidence needed to establish a case. See Atagbor Vs. Okpo & Ors. (2013) LPELR-20207 CA; Akinbade & Anor. Vs. Babatunde & Ors. (2017) LPELR-43463 (SC) and Ifeta Vs. SPDC Nig. Ltd. (2006) LPELR-1436 SC, where it was held: “It is noted that pleadings cannot constitute evidence and a defendant, as in the instant case, who does not give evidence in support of his pleadings or in challenge of the evidence of the Plaintiff, is deemed to have accepted and rested his case on the facts adduced by the Plaintiff, notwithstanding his general traverse. In other words, averments in pleadings on which no evidence is adduced are deemed to have been abandoned, as mere averments without proof of such facts, unless such facts are admitted.” See Woluchem Vs. Gudi (1981) 5 SC 291; Basheer Vs. Same (1992) 4 NWLR (Pt.236) 491; Uwegba Vs. A.G. Bendel State (1986) 1 NWLR (Pt.16) 303; Adegbite Vs. Ogunfaolu (1990) 4 NWLR (Pt.146) 578 at 590 and FCDA Vs. Naibi (1990) 3 NWLR (Pt.138) 270 at281.” Per Mohammed, JSC. The law is that any averment in a pleading, not supported by evidence must be struck out, being deemed abandoned and useless. See Onube Vs. Asuakor & Ors. (2019) LPELR-47231 (CA) Per Ekanem, JCA; Olarewaju Vs. Bamigboye (1987) 3 NWLR (Pt.60) 353.’.
Furthermore, in my humble view, the allotment and or allocation of insufficient time to a Counsel and or litigant in examining his witness amounts to ‘miscarriage of justice’ against such litigant. ‘Miscarriage of justice’ was ably defined by the appellate Court thus “Miscarriage of justice’ means, ‘justice failure.’ It is justice that finds itself in a wrong carriage. ‘It is therefore injustice. It occurs when the court fails or refuses its rules, facts or law” OGUNTAYO V ADOLAJA (2009) 15 NWLR (Prt. 1163) P. 160.
Furthermore, on what constitutes ‘miscarriage of justice’, the court held that ‘there is said to be miscarriage of justice or failure of justice when the judgment of the court is inconsistent or prejudicial to the right of the party concerned. It is a failure on the part of the court to do justice. That is to say, the court did what amounts to injustice.’. See: Oladina Sanusi v Oreitan Ameyogun (1992) 4 NWLR 9pt. 237), pg. 527; Harrison Okonkwo & anor v Godwin Udoh (1997) 9 NWLR (pt. 519), p. 16; Ojo v O. Anibire & Ors. (2004) 10 NWLR (pt. 882) p.571.
Much bothering to me, in my humble view, of such occasion where the Judge allots insufficient time to such Counsel and or litigant is the fact that such attitude of the Judge, with due respect, would or is likely to lead to a ‘perverse finding’ by the Court at the end of the trial or case or in his decision and or Judgement or Ruling. The Supreme Court of Nigeria has held in the case of Mmamman v FRN (2013) 6 NWLR (pt. 1351) 569 SC, where M.D. Muhammad J.S.C. at page 585, paras. E-F on what amounts to perverse finding of a court thus ‘A court’s finding is said to be perverse if the finding draws wrong influence from the evidence before it or where same has occasioned miscarriage of justice. (Ukpabi v State (2004) 11 NWLR (pt. 884) 439, SC and Aiguokhian v State (2004) 7 NWLR (pt. 873) 565 SC.’
Furthermore, as stated earlier in this paper (and probably as an emphasis to say), such insufficient time allocated or allotted by the Court could be very inimical to the just determination of such case and denial of ‘fairness’ of hearing or fair hearing, hence, lead to miscarriage of justice and leads to a breach of such litigant’s constitutional right to fair hearing. In support of this my humble submission, I humbly consider and rely on the provisions of section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which provides thus ‘36.—(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.’ Furthermore, I humbly submit that the law is trite that a hearing (as in the instance of this paper for the purpose of the present consideration) cannot be said to be fair if any of the parties in the matter (just as the Counsel and or litigant allotted or allocated insufficient time to present his case or examine a witness) is refused or denied the opportunity to be heard by presenting his case. I humbly rely on the cases of: Kotoye v C.B.N. (1989) 1 NWLR (pt. 98) 419; Saleh v Monguno (2003) 1 NWLR (Pt. 801) 221, Bamgboye v University of Ilorin (1999) 10 NWLR (pt. 622) 290; Mobil Producing (Nig.) Unlimited v Monokpo (2004) All FWLR (pt. 195) 575 at 628; (2003) 18 NWLR (pt. 852) 346. Also see: FAGBOLA VS. TITILAYO PLASTIC INDUSTRIES LTD & ORS (2003) LPELR 11112 (CA). I further humbly submit that ‘Fair hearing’ is a two-way traffic which both parties to a suit (or an originating application or trial of the present consideration) ought to enjoy or be entitled to. See: the case of MFA & ORS VS. INONGHA (2014) 4 (NWLR) (Pt. 1397) 350. I therefore, humbly submit that the breach of the component of the right to fair hearing-audi alteram partem- meaning ‘hear the other party’ or ‘hear the other side or the various sides in a dispute before reaching a decision or judgment’ (renders a proceeding (just as the proceedings in the present consideration) null and void. Thus, the law is trite that, once allegation of breach of right to fair hearing is made, it is irrelevant whether or not the decision made subsequently is correct as the proceedings leading to such decision is null and void. I humbly rely on the cases of: Otapo Sunmonu (1987) 2 NWLR (pt. 58) 587; Tukur v Govenrnment of Gongola State (1989) 4 NWLR (pt. 117) 517; Kim v State (1992) 4 NWLR (pt. 233) 17; Salu v Egeibon (1994) 6 NWLR (pt. 348) 23. Also, in the case of Adigun v A.G. Oyo State (1987)1 NWLR pt. 53, p. 678 SC, Nnaemeka-Agu JSC stated thus ‘the principle has been incorporated in our jurisprudence that a man cannot be condemned without being heard. This is often expressed by the Latin maxim audi alteram partem; hear the other side, and it is applicable in all cases in which a decision is to be taken in any matter, whether in a judicial, quasi-judicial or even in a purely administrative proceedings involving a person’s interest in a property, right or personal liberty’. Similarly, in the case of Adigun (supra), Eso JSC, put it thus ‘Natural justice demands that a party must be heard before the case against him is determined. Even God gave Adam an oral hearing despite the evidence supplied by his act of covering his nakedness, before the case against his continued stay in the Garden of Eden was determined against him’. See: Adigun v A.G. Oyo State (1987)1 NWLR pt. 53, p. 678 at 701 SC. Furthermore, Obaseki JSC in the Adigun’s case (supra) reechoed the implications of a trial or hearing devoid of ‘fairness’ thus ‘the right to fair hearing being a fundamental constitutional right guaranteed by the constitution, the breach of it in any trial or investigation or inquiry nullifies the trial, investigation or inquiry, and any action taken on them is a nullity’. See: Adigun v A.G. Oyo State (1987)1 NWLR pt. 53, p. 678 at 709 SC.
Furthermore, in the case of Kano Native Authority v Obiora, (1959) 4 FSC 226 at 230, Ademola CJF, as he then was, said ‘Natural justice requires that an accused person must be given the opportunity to put forward his defence fully and freely and to ask the court to hear any witness whose evidence might held him’. (Underlining is mine for emphasis). Eso JSC, in Adigun’s case (supra) also held thus ‘Once an appellant shows that there is an infringement of the principle of natural justice against him, he needs show nothing more. The finding that there is an infringement of the principle is sufficient to grant him a remedy. This is not a case, where one, after showing injury would need to proceed further to show damages. The injury… is proof positive of the damage’. See: Adigun v A.G. Oyo State (1987)1 NWLR pt. 53, p. 678 at p. 721. Hence, Lord Hewart in R V Sussex Justices, Ex parte (1924) 1 KB 256 at 259, McCarthy has stated it thus ‘Justice should not only be done but should be manifestly and undoubtedly be seen to be done’. Also, see: Onakoya v FRN (2002) 11 NWLR 9pt. 779), p. 595, SC. Furthermore, in the case of ‘SHOLA v OFILI & ORS. (2020) LCN/15558(CA)’ the Court of Appeal of Nigeria held thus ‘that the true test of fair hearing is indeed the impression of a reasonable person who was present at or through the trial whether from his observation justice has not only been done but is seen to have been done in the case. Indeed, justice must not only be done in the thinking of the Court but must also be seen to have been done in the thinking and or estimation of any reasonable person seized of the proceedings of the Court.’ See: Otapo V. Sunmonu (1987) 2 NWLR (Pt.58) 587. See also Wilson V. AG of Bendel State (1985) 1 NWLR (Pt.4) 572; A. U. Amadi V. Thomas Aplin & Co. Ltd. (1972) ALL NLR 413; Mohammed Oladapo Ojengbede V. M. O. Esan & Anor. (2001) 18 NWLR (Pt.746) 771.
The Court in Shola v Ofili (supra) further held on the principles underlying the right to ‘fair hearing’ thus ‘Now, the observance of the right to fair hearing of the citizen in the determination of their civil rights and obligations by every Court in the land is a fundamental prerequisite to valid adjudication to ensure that decisions are not reached without a hearing of the citizen. However, an allegation of denial of the right to fair hearing, as grave as it could be and the dire consequences it could have on the proceedings and judgment of a Court if proved, does not operate in a vacuum but is dependent on the facts and circumstances of each given case. In other words, whether the right to fair hearing was breached or not is a question of facts to be determined on the facts and circumstances placed before the appellate Court. Thus, it is the law that each case of allegation of breach of the right to fair hearing must be decided on the peculiar facts and circumstances of each case since it is primarily a matter of fact.
Therefore, it is only when the facts are ascertained that the law would be applied to the facts so established to see whether or not such established facts constitute a breach of the party’s right to fair hearing. See: Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). See also News Watch Communications Limited V. Alhaji Ibrahim Attah (2006) 12 NWLR (Pt.993) 144.’. the court in the Shola v Ofili (supra) continued thus ‘My Lords, there can be no doubt that fair hearing, which in most cases is synonymous with fair trial and natural justice, is an issue which is clearly at the heart and threshold of our legal system and thus once it is shown that there has been a denial of fair hearing as guaranteed by the Constitution, the whole proceedings automatically becomes vitiated. A denial of fair hearing can ensure from either the conduct of the proceedings and or the decisions of the Court in the hearing of a case.’. The Court in Shola v Ofili (supra) further held ‘I must say that there is the utmost need for Courts to be fair and render equal treatment to the parties before it, more particularly in the observance of their right to fair and fully participate in the proceeding where no fault is attributable to them, including the right to cross examine witnesses for the other party, which is one of the hall mark of the adversarial system of administration of justice in this Country. Thus, it cannot be over emphasized that in law under the adversarial system of jurisprudence, which we operate in this country, the art of cross-examination is perhaps one of the greatest weapon to attack an adversary.
It is thus very fundamental as it is the pivot, and indeed the central hub and gravity of the administration of both criminal and civil justice in Nigeria. system. This is so because it reinforces in very clear terms the application of the rule of natural justice of audi alteram partem, hearing the other party. Therefore, to without any just or legal or reasonable cause or reason, deny a party the right to cross examine his adversary and his witnesses would and indeed clearly amounts to denial of fair-hearing as enshrined in Section 36(1) of the 1999 Constitution of Nigeria.See Onwuka V. Owolewa (2001) 7 NWLR (Pt.713) 695. See also Okogi V. Okoh (2010) 9 NWLR (Pt.1199) 311.’ (Underlining is mine for emphasis). The court in the case of Shola v Ofili (supra) further admonish a trial court as regard the need for ‘caution’ in regard to the observance of ‘fair hearing’ in a suit thus ‘It is thus better for Courts to err on the side of caution when it comes to the observance of the right to fair hearing as constitutionally guaranteed to the parties before the Courts. In law where there is a proved breach of the constitutionally guaranteed right to fair hearing of the parties, a decision reached thereby is both susceptible and liable to be set aside without much ado by an appellate Court if so called upon.
This is so because the principles of fair hearing are not only fundamental to adjudication but also a constitutional requirement which cannot be legally wished away. It is indeed a fundamental right of universal application. See Agbapuonwu V. Agbapuonwu (1991) 1 NWLR (Pt.165) 33 @ p. 40. See also J.O.E. Co. Ltd. V. Skye Bank Plc (2009) 6 NWLR (Pt.1138) @ p. 518; Robert C. Okafor & Ors. V. AG and Commissioner for Justice Anambra State (1991) 6 NWLR (Pt.200) 659.” (Undserlining is mine for emphasis).
Furthermore, I have observed that the Court having been overburdened by the congestion of its dockets by the number of cases to be heard, would wish to conduct its trials and or proceedings as quick as possible. Nevertheless, I humbly submit that this ‘discretion’ must be exercised ‘judicially and judiciously’ as I have already emphasized above in this paper.
In my humble recommendation, and as an addendum to what I have stated above in regard to ‘discretion’ of the Judge in the conduct of trial proceedings, it is fair enough at least, for such Judge (as an umpire) faced with the situation where a witness’s examination is taking long time than the court could bear or the time of the court for the day could tolerate or permit, perhaps, having regard to the number of other cases pending in the court that day, to ‘adjourn’ such ‘examination of witness’ for a continuation another day rather than being hasty to shot such litigant or Non-SAN Counsel up as ‘justice rushed is also tantamount to justice crushed’ as held in the case of Shola v Ofili (supra). Also, it is my humble recommendation to such Counsel examining the witness to apply for an adjournment of the examination for a continuation another day rather than being hasty as ‘justice rushed is also tantamount to justice crushed’. Furthermore, it is in tune with ‘fairness’ and ‘justice’ in a case that assuming a Counsel or litigant has ‘a hundred questions’ to examine his witness upon or that of the opponent, that he be allowed to so examine and or defend himself against the evidence and or allegations of facts made against him even if it takes him five adjournments or more to do so.
A court of law or a trial court (as an umpire) while being passionate to ensure speedy trial or proceedings is advised to also remember the principle of law to the effect that ‘justice delayed, is justice denied and justice rushed is tantamount to justice being crushed’ or ‘justice being slaughtered’ on the altar of justice. See: the case of Shola v Ofili (supra). On this my humble submission, and for emphasis, the Court of Appeal of Nigeria in the case of Shola v Ofili (supra) held thus ‘Now, while it is true that “justice delayed is justice denied” yet it is also equally true that “justice rushed is justice crushed” and thus it would indeed be a travesty of justice for a Court not to properly and dispassionately hold the balance of justice between the two extremes of rushing or crushing justice. The most important thing is that at all times in proceedings before the Courts the enshrined constitutionally guaranteed rights of the citizen to fair hearing, to be fairly heard, before decision affecting his civil rights and obligations is reached, must be faithfully observed by the Courts.
The right to be heard and for substantial justice to be done to the parties by the Courts cannot be sacrificed at the altar of speed. See Section 36(1) of the Constitution of Nigeria, 1999 (as amended) which provides as follows: “In the determination of his civil rights and obligation, including any question or determination by or against any Government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and impartiality.”. See also Abubakar V. Yar’ Adua (2008) 4 NWLR (Pt.1078) 468: p. 503, where the Supreme Court had stated inter alia as follows: “…Courts of law cannot sacrifice the constitutional principle of fair hearing at the altar of speedy hearing of cases when the content of the speedy hearing is not in consonance with fair hearing ….Although the law is that speedy hearing is one vital and important aspect of fair hearing, speedy hearing of a case which denies a party access to pre-trial evidence, such as interrogatories, is not fair as it turns contrary to the constitutional principle of fair hearing. In the instant case, the Court of Appeal was wrong in rejecting the application to administer interrogatories on the ground that it would impede speedy trial of the case.”
Therefore, I humbly recommend that where such application for adjournment is refused by the court, the affected Counsel or litigant can apply for the records of the proceedings of that day and file an appeal against such bench Ruling of the Court refusing his application for adjournment on the ground of ‘fair hearing’ i.e. on law as the court has taken a decision that has affected his constitutional right to be ‘heard fairly and or justly’ in that instance in regard to the case.
Finally, therefore, it is my humble belief that this paper (which has taken me a number of stressful days in legal research and composition) would be of immense use to the reader and would have been a tremendous contribution to the administration of justice in our courts of law in Nigeria.
Email: hameed_ajibola@yahoo.com
