Citation: (2021) 4 NWLR PT. 1766 AT 242.
Courtesy: Moruff O. Balogun Esq.
Summary of Fact:
The appellant and co-accused persons were on 30/6/1997 arraigned at the High Court of Anambra State, Aguata-Ekwulobia on a six-count charge of malicious damage, rioting, stealing and riotous demolition of property.
The appellant and the co-accused persons filed a motion dated 8/3/2016 at the trial court seeking an order quashing or dismissing all the charges against them and discharging them. According to the appellant, after the commencement of trial, the trial Judge was transferred out of the judicial division in 1999, which caused the respondent to become lackadaisical towards prosecuting the matter thereby causing him to witness incessant transfer of the Judges assigned to hear the matter taking over twenty years without the matter being properly commenced.
On the other hand, the respondent contended that since the arraignment of the appellant, the appellant and his co-accused persons used all kinds of techniques, including consistent absences from the criminal proceedings, to frustrate the speedy trial and determination of the charge against them. The respondent emphasized that the appellant failed to appear for trial in over forty occasions and requested for adjournments for over fifteen times to the extent that the trial court at some occasion issued bench warrant against one or more of the accused persons, who during the pendency of the bench warrant committed same offences against the complainants.
After hearing the parties, the trial court dismissed the application. The court held that the complainants who initiated the proceedings were entitled to have the matter heard timeously and that the appellant and the other accused persons were the major cause of the undue delay in having the matter heard due to their incessant absence from court.
Aggrieved, the appellant appealed to the Court of Appeal.
In its judgment, the Court of Appeal dismissed the appeal. It held that the appellant’s fundamental right was not breached by the respondent or the court when most of the adjournments in the case were occasioned by the absence of the appellant and the co-accused persons or of their counsel in court; and that when some of the appellant’s co-accused persons were absent from court for one reason or the other, trial could not have proceeded.
Still aggrieved, the appellant appealed to the Supreme Court.
At the Supreme Court, the appellant’s contention was that his fundamental right to fair hearing within a reasonable time was breached which necessitated the quashing or dismissal of the charge against him, and that the delay, if any, from him was minor and inconsequential.
In determining the appeal, the Supreme Court considered the provision of section 36 of the Constitution of the Federal Republic of Nigeria, 1999 which states as follows:
“Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal.”
Held: Unanimously dismissing the appeal.
The following issues were raised and determined by the Supreme Court.
On Whether party guilty of delay can complain of breach of right to fair hearing-
A party in a legal dispute cannot claim that his right to fair hearing has been breached when he willfully absents himself from the hearing and is complicit in the ensuing delay of the trial. No one is permitted to profit from his own wrong or default. In the instant case, the appellant and his co-accused did not deny their complicity in delaying their trial.
Per KEKERE-EKUN, J.S.C.:
“With regard to the contention that the delay in the hearing of the case has resulted in a breach of the appellant’s fundamental right to fair hearing, it is quite evident from the record, particularly the counter-affidavit filed by the respondent and the exhibits annexed thereto, giving the chequered history of the case, which the appellant failed to controvert that a significant amount of delay was occasioned by the absence of the appellant and his co-accused from court on numerous occasions, knowing fully well that in a joint trial, the case could not proceed unless all the accused persons were present.”
Per EKO, J.S.C.:
“have we hear a person who seeks justice in a court of justice who does not come with clean hands. Equity acts in personam and would not allow a party, as the instant appellant who comes seeking its aid in justice, with dirty hands. Clearly, the appellant has by his conduct waived his right to be tried within a reasonable time for the aforementioned criminal offences.
He is estopped from complaining about, or blaming either the prosecutor or the trial court for, any delay in his trial. Having volunteered the injury of frustrating and delaying his speedy trial, the appellant cannot complain that he bears the consequence of the self- inflicted delay. After all the rule is: volenti non fit injuria.”
On whether principle of fair hearing available to indolent or lazy party-
The fair hearing principle formerly entrenched in section 33 of the Constitution of the Federal Republic of Nigeria, 1979, now section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), is not for the weakling, the slumberer, the indolent or the lazy litigant, but it is for the party who is alive and kicking in the judicial process by taking advantage of the principle at the appropriate time. The principle is not available to a party who sets a trap in the litigation process against the court and accuse the court of assumed wrong doing even when such so-called wrong doing is, as a matter of fact, propelled or instigated by the party, through his counsel. In the instant case, the appellant claimed to be prejudiced when the situation of prejudice was caused by his own making and, in some instances, he was helped along the way by his co-travelers in creating the delay wherein on record over forty absences in court were due to him and co-accused with over fifteen applications for adjournment by his counsel. Those, more than anything on the respondent’s side, produced the delay which appellant wished to clutch as anchor for his own benefit while claiming that speedy trial was denied him. The right to fair hearing the appellant claimed was denied him in the absence of the speedy trial was waived by him through his conduct and through his incessant absence from court, including those of his counsel and his co-accused.
On categories of fundamental rights with respect to right of waiver-
Fundamental rights are classifiable. And they are as follows:
Fundamental rights that are for the sole benefit of the private individual, such as the right to speedy trial which a litigant can waive by asking for an adjournment of the case and in so far as the adjournment does not give rise to a miscarriage of justice, the waiver is permissible;
Fundamental rights that are for the benefit of the litigant and the public, such as in a speedy trial where a litigant seeking an adjournment in the case, or, in other words waiver of the right but the adjournment sought is of a nature that the court will lose the advantage it has of accurate assessment of the witnesses it has observed in the course of trial; in such a case, waiver is not permissible as to permit it will lead to injustice and it is against public policy to compromise manifest or latent illegality;
where the question of waiver relates to a right in the control of the State or in the sole control of the court.
In the instant case, the situation fell within the first category. That is, a waiver of the right to speedy trial by the appellant and his co-accused through their continued absence from court, coupled with their incessant requests for adjournment of the trial. If the trial court had denied the appellant and appellant’s counsel any of their fifteen requests for adjournment in the matter, they would have said that the court was bias and that their right to fair hearing had been violated. Similarly, if the trial court had continued, the trial proceedings during one of the forty times the appellant or any of his co-accused was absent in court, the appellant’s counsel would have contended that his client’s right to fair hearing had been breached. The appellant’s right to fair hearing which was allegedly denied him in the absence of the speedy trial was waived by him through his conduct and his incessant absence from court including those of his counsel and co-accused.
4.On Principles guiding determination of application to quash criminal charge-
There are certain principles that guide the court when determining an application to quash criminal charges. They include:
where the proof of evidence and witness statements attached thereto do not disclose a prima facie case against the accused person;
where the proof of evidence does not sufficiently link the accused with the offence;
where there is a fundamental defect in the charge which goes to the root of the adjudication or which has the effect of misleading the defence to its prejudice.
In the instant case, the appellant did not advance any arguments to warrant the quashing of the charges against him on any of the grounds stated above.
On Determination of whether case heard and determined within reasonable time-
It is not possible to lay down a fixed rule as to a reasonable time in the trial of every case. Some cases are by their nature short or lengthy by reason of the number of witnesses to be called or the length of the testimonies of the witnesses. Others involve witnesses who do not live in the country or within the court’s jurisdiction. Documents to be put in evidence may be in the custody of a third party and may not as such be readily available for production at the trial. The health of a vital witness or even the trial Judge may fail. All these and many more factors can reasonably delay the conclusion of a trial. Whether or not a case has been heard and determined within a reasonable time will depend on the peculiar facts and circumstances of each case. In the instant case, given the peculiar circumstances of the case, it would have been most inequitable to allow the appellants to reap from a tardiness that had resulted predominantly from their own deliberate lapses.
On Meaning of within a reasonable time” in section 36(4) of I999 Constitution-
The phrase “within a reasonable time” implies that the time for the determination of the matter should not be too short or too long, depending on the nature and facts of the case. The phrase “within a reasonable time” has to be taken in context with the facts and circumstances prevailing in a given case and not taken literally just because the passage of time would on the face of it seem to have dragged for a long time. There is nothing strange in the absence of co-accused persons creating some stalling or delay since as human beings, one thing or the other could keep the partner away on a given date and the trial has to be with all accused present.
On Whether party who caused delay in trial can complain of delay-
Where a matter had not been determined within a reasonable time as required by section 36 of the Constitution of the Federal Republic of Nigeria, 1999 and the delay is equally attributable to the commission or omission of the party complaining, public policy would disentitle such a complainant from succeeding in his complaint. It does not lie in the mouth of such a culprit or any person who draws title through him to say that a delay perpetrated by him or in conjunction with other litigants or even with the complicity of the court should form the basis of overturning a decision arrived at in spite of any delay. He who comes to equity must come with clean hands. In the instant case, it would have been most inequitable given the peculiar circumstances of the case to allow the appellants to reap from a tardiness that resulted predominantly from their own deliberate lapses. The appellant who had complicity in the long delay in his prosecution could not equitably take benefit of his counsel’s tardiness and of the non-attendance in court by some of his co-defendants to insist that because of the long delay in his trial, the charges against him must be quashed or dismissed.
On Whether right to speedy trial can be waived-
A party can waive a right inuring to him for fair hearing/trial but the public right to speedy trial or determination by the court within a reasonable time cannot be waived. No litigant has a right to unnecessarily delay the hearing of his suit and move the court to proceed at his pace. In order to give effect to the liberty of an accused person incarcerated, the essentiality of speedy trial imposes a duty on the court and the parties, including their counsel, to ensure that any antics or gimmicks aimed at delaying the determination of the matter must be avoided. In the instant case, the appellant has soiled hands to ask for the discretion or favour of the court.
On need to avoid delayed justice and hurried justice-
It is the desire of all involved in the administration of justice to uphold the principle which states that justice delayed is justice denied. However, it is equally unacceptable to encourage or do injustice in an attempt at speedy dispensation of justice. Justice may be slow sometimes but it will surely arrive at its destination. Justice delayed is justice denied. The reverse is equally disturbing. Justice rushed is a travesty of justice and a threat to the fabric that binds civilised society together. The balance is what the law seeks when justice is to be administered as delayed justice is as equally untoward and unconscionable as hurried justice. Hence, while justice delayed is tantamount to justice denied, similarly, hurried justice is harried justice. Both are to be avoided in the pursuit of justice.
Moruff O. Balogun Esq.
Ijebu Ode, Ogun State.