FACTS OF THE CASE

The Appellant was arraigned on a two-count charge of conspiracy to commit robbery and robbery. The trial faced multiple adjournments due to the absence of the Defence Counsel, Prosecution Witnesses, and a public holiday. Despite the challenges, the Prosecution presented its case, and the Appellant testified in his defence. However, the trial Court found him guilty and sentenced him to 21 years imprisonment.

The Appellant appealed to the Court of Appeal, arguing that he was denied the right to cross-examine a key Prosecution Witness (PW1). The Court of Appeal held that the Appellant had been given adequate opportunity to cross-examine PW1 and that his failure to do so was not the fault of the trial Court. The Appeal was dismissed, and the judgment of the trial Court was affirmed. The Appellant further appealed to the Supreme Court, citing two Grounds of Appeal.

LEGAL ISSUES

1. Whether the Court of Appeal was right in affirming the judgment of the trial Court wherein the trial Court foreclosed the Appellant’s right to cross-examine PW1, the Respondent’s sole Witness?
2. Whether the Appellant’s conviction is supported by law in view of the weight of evidence given and improper trial procedure?

DECISION OF THE COURT

The court addressed the issues raised by the Appellant, noting that the Respondent had adopted the Appellant’s two issues. However, the court observed that issue 2 was based on Ground 2 of the Grounds of Appeal, which was improper and incompetent. The court cited the case of State v. Ekanem (2016) LPELR-41304(SC), where it was held that a Ground of Appeal that challenges the judgment of the trial Court as being against the weight of evidence is incompetent.

The court explained that such a Ground of Appeal is properly directed at the Court of Appeal, not the Supreme Court. The Constitution of the Federal Republic of Nigeria (as amended) does not provide for direct appeals from the High Court to the Supreme Court. Instead, the Court of Appeal serves as an intermediate appellate court, hearing appeals from the trial Court and affirming or reversing its findings before the case can come to the Supreme Court.

Therefore, the court struck out Ground 2 of the Grounds of Appeal as incompetent, and consequently, issue 2 distilled from it also collapsed. The court held that an issue for determination cannot exist independently of the ground of appeal that supports it, and when the ground of appeal ceases to exist, the issue automatically collapses. Thus, only issue 1 was left for determination in the Appeal.

The court resolved the issue of fair hearing  in issue 1 by expounding on the doctrine of fair hearing, citing relevant judicial authorities and dicta. The court held that fair hearing is a fundamental right guaranteed by the Constitution, but it is not an empty verbalism. A party alleging a breach of fair hearing must show clearly that the right was violated. The court emphasized that it is not enough to merely mention fair hearing; the facts of the case must show that the right was indeed violated.

In this case, the Appellant alleged that his right to cross-examine the sole Prosecution Witness (PW1) was foreclosed by the trial Court, resulting in a miscarriage of justice. However, the court found that the Appellant’s counsel had several opportunities to cross-examine PW1 but failed to do so. The court held that the Appellant’s cry of lack of fair hearing was misleading, and that the trial Court had given him sufficient opportunity to cross-examine PW1.

The court relied on the authorities of Gbadamosi v. Dairo (2007) and Adebayo v. A.-G., Ogun State, to hold that the Appellant’s allegation of breach of fair hearing was unfounded. The court also cited Ogolo v. Fubara (2003) to emphasize that cross-examination is a constitutional right, but it is not absolute, and that the Court has a duty to ensure that every party is afforded an opportunity to cross-examine witnesses.

It was further held that the law is well established that a party alleging a breach of fair hearing must demonstrate that they were denied the opportunity to present their case. Whether a party has been denied fair hearing depends on the specific facts and circumstances of the case. This Court has consistently held that the crucial factor in determining whether a party has been denied fair hearing is whether both parties were afforded an equal opportunity to present their case before judgment was delivered.

In Mohammed v. Kano Native Authority (1968) 1 ALL NLR 424, Akaninwo v. Nsirim (2008) 1 SC (Pt. III) 151, and Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587 @ 605, this Court held that the true test of fair hearing is the impression of a reasonable man present at the trial and whether justice has been done in the case. A breach of the right to fair hearing renders the entire proceedings and any judgment or order made therein null and void, as held in Audu v. F.R.N (2013) LPELR – 19897 (SC) 13, Akinfe v. The State (1988) 3 NWLR (Pt. 85) 729, and Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt. 622) 290.

However, where the Court creates an enabling environment for parties to ventilate their grievances, the failure of a party to take advantage of such an environment cannot be the basis for a complaint of lack of fair hearing. This was held in Mfa and Anor v. Inongha (2014) 1-2 SC (Pt. 1) 43 and Inakoju v. Adeleke (2007) LPELR-1510 (SC).

In the instant case, the facts show that the appellant was represented by counsel throughout the proceedings, and the respondent’s witness, PW1, was available for cross-examination on several dates. However, the appellant’s counsel failed to cross-examine PW1 due to their absence, leading to the foreclosure of their right to cross-examine. The appellant subsequently changed counsel, and the new counsel had the opportunity to cross-examine PW1 but chose not to do so.

Clearly, the appellant had every opportunity to cross-examine PW1 but failed to make use of it. Therefore, the lower Court and the trial Court were correct in rejecting the complaint of denial of fair hearing, as it was not made out.

The court concluded that the Appellant’s appeal lacked merit and dismissed it, affirming the Judgment of the Court of Appeal.

RATIO DECIDENDI

In the dictum of Niki Tobi, JSC(Of blessed memory) on fair hearing

“I said it in the past and will say it again that the duty of the Court, trial and appellate, is to create the atmosphere or environment for a fair hearing of a case, but it is not the duty of the Court to make sure that a Party takes advantage of the atmosphere or environment by involving himself in the fair hearing of the case. A Party, who refuses or fails to take advantage of the fair hearing process, created by the Court, cannot turn around to accuse the Court of denying him fair hearing. This is not fair to the Court, and counsel must not instigate his client to accuse the Court of denying him fair hearing. After all, there is the adage that the best the owner of the horse can do, is to take the horse to the water, he cannot force it to drink the water. The horse has to do that by itself and by the act of sipping. If the horse is unwilling to sip, that ends the matter. The horse will not blame anybody for death arising from lack of water or hydrate.”Niki Tobi, JSC, in Inakoju v. Adeleke (2007) LPELR-1510 (SC).