This Judgment of the Supreme Court will make an interesting read for courtroom lawyers, as it relates to issues bordering on the constitutional right to fair hearing and the right of a party to counsel of his/her choice.

This appeal emanated from a criminal charge before the Rivers State Magistrate Court, wherein all the defendants retained the services of legal counsel and thus had exercised their constitutional rights to have legal practitioners of their choice conduct their respective defence to the charge.

Accordingly, when the charge came up for hearing on 12/07/2004, all the defendants and their respective counsel were in court. However, as at 11am, the presiding trial Chief Magistrate was yet to arrive court – prompting all parties (all four defendants and their respective counsel, the Police Prosecutor and counsel holding watching brief for the nominal complainant) to agree with the clerk of court for an off-record adjournment of the charge to 19/08/2004; and the charge was so adjourned. Consequently, both counsel for the Appellant (2 nd Defendant) and the 1st Defendant left the courtroom to attend to other matters; albeit all the defendants, the Prosecutor and counsel for the 3rd Defendant stayed behind.

The trial Magistrate subsequently arrived court, discountenanced the adjournment obtained off-record and insisted on proceeding with the hearing of the charge. The Police Prosecutor opened the case of the prosecution by fielding PW1 who testified in chief and the charge was thereafter adjourned to 18/08/2004 for cross examination of PW1.

Being aggrieved by the trial Magistrate’s decision to proceed with hearing of the charge on 12/07/2004 without his retained counsel (particularly in the light of the events of 12/07/2004), the Appellant applied to the High Court of Rivers State for an order of certiorari quashing the proceedings of 12/07/2004, which application was dismissed – prompting the Appellant to head to the Court of Appeal. However, the Court of Appeal also resolved the issues in favour of the Respondents (mainly the COP, the trial Magistrate and the Chief Registrar of the High Court of River State) and upheld the validity of the proceedings of 12/07/2004, on the basis that absence of the Appellant’s counsel was a harmless omission since the Appellant’s right to crossexamination (through his counsel) was reserved for 18/08/2004. Inevitably, the Appellant approached the Supreme Court for a ceiling decision on this issue(s).

The Supreme Court disagreed with the position taken by both the High Court and the Court of Appeal, that since the business of the trial court on 12/07/2004 was limited to evidence in chief of PW1 and that the charge was adjourned to a later date of 18/08/2004, the Appellant’s counsel was therefore afforded the window to crossexamine PW1 on the said adjourned date and thus no harm was really inflicted on the Appellant’s right to fair hearing.

The Apex Court per Mary Peter-Odili, J.S.C (Rtd.) relied on Section 36 (6) (c)&(d) of the 1999 Constitution (as amended) and also found guidance in its earlier decisions in Ogundoyin v. Adeyemi (2001) 13 NWLR (Pt. 730) 403 and Umaru vs. The State (2009) 8 NWLR (Pt. 1142) 134 to come to the decision that the Constitution has indeed provided that the Appellant’s counsel ought to be present in court on 12/07/2004 during the examination in chief of PW1. According to the Supreme Court, counsel’s presence would have afforded him the opportunity to listen to PW1’s oral testimony, observe the latter’s demeanour and where necessary object to any of the documents to be tendered by the prosecution in the course of the subject proceedings. The Appellant’s counsel may also need to object to certain questions that offend laid down legal procedures.

The Court took particular note of the fact that in the circumstances of this case, the absence of the Appellant’s counsel was clearly in order and that the non-compliance with the established procedure that ordinarily required counsel to be present in court during PW1’s examination in chief was due to the fault of the trial Magistrate – counsel was clearly ambushed. The Court went on to hold that a breach to the Appellant’s constitutional right to fair hearing had occurred and that counsel was right to reject the call to embark upon cross examination of a witness who testified in counsel’s absence.

Thus, in its Judgment of 29/01/2021, the Supreme Court allowed the appeal and ordered a de novo trial of the charge before another magistrate.

A major lesson to be learnt from this decision is that indeed deep consideration(s), prudence and circumspection/caution should be deployed in situations where an issue bordering on a litigant’s right to fair hearing has or is about to be triggered. This is because the insistence on a hard stance on this issue by the adjudicator or the opposing party may have very costly implication(s) – one that could have been avoided if the issue was approached with prudence. In the subject charge, the hard stance of the trial Magistrate to proceed with hearing on 12/07/2004 (even in the face of valid protestations) cost all the parties involved more than 16 years in time alone. If the trial Magistrate had allowed the off-record adjournment (as agreed by all parties, counsel, prosecutor and the clerk of court) to 19/08/2004 stand, the time “lost” would have just been about 5 weeks. Presumably, this informs the harsh reprimand Eko, J.S.C (Rtd.) gave the trial Magistrate is His Lordship’s comments in the Judgment.

Certainly, it is not wisdom to sacrifice justice on the altar of speed.


#Mba, Omokhua & Tare-Otu