Obasi V. State (2020)

LAWGLOBAL HUB Lead Judgment Report

UWANI MUSA ABBA AJI, J.S.C. 

The Appellant was arraigned before the Anambra State High Court, Eguata-Ekwulobia on 30/6/1997 on a 6-count charge of malicious damage, rioting, stealing and riotous demolition of property. According to the Appellant, that after the commencement of the trial by Ezeari J, he was transferred out of the judicial division in 1999, which caused the Respondent to become lackadaisical towards prosecuting the matter thereby causing the Appellant to witness incessant transfer of the Judges assigned to hear the matter which took over 20 years without the matter being properly commenced. Consequently, the Appellant with others applied vide a motion dated 8/3/2016 for an order quashing/dismissing all the charges against him/them and discharging him/them. The Respondent’s case however is that since the arraignment of the Appellant on 14/6/1999, 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 6-count charge against them. The Respondent emphasized that the Appellant failed to

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appear for trial in over 40 occasions and requested for adjournments for over 15 times. In fact, 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 on 18/5/2013.

​The Ruling of the trial Court disfavoured the Appellant, who appealed to the lower Court. Having considered the appeal, the lower Court also dismissed the appeal, hence this current appeal. The Respondent’s lone issue aptly fits for the consideration of this appeal than the rather windy and prolific issues formulated by the Appellant.

ISSUE:

Whether the Court below was right in dismissing the Appellant’s appeal because his right to fair hearing was not breached, particularly when the delay in the trial of the Appellant was substantially caused by the Appellant himself and circumstances beyond the control of the prosecution.

​It is the submission of the learned Counsel to the Appellant that his constitutional right of fair hearing within a reasonable time has been breached, the trial of the Appellant having lingered or being stalled for

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about 18 years. He chronicled 4 instances attributing the delays to the actions/inactions of the Respondent. He admitted that the delay, if any, from the Appellant was minor and inconsequential. Thus, he submitted that speedy trial of the Appellant was breached and denied. He relied on DASUKI V. FRN & ORS (2018) LPELR-43897(SC). He submitted that the remedy for the breach of the Appellant’s right to fair hearing and speedy trial was a dismissal of the charge against him which the lower Court refused. He therefore urged for the resolution of this issue in his favour.

It is concurred by the learned counsel to the Respondent that speedy trial in criminal proceedings is an aspect of the right to fair hearing guaranteed by Section 36 of the Constitution, 1999 (as amended). However, that there is no time limit within which a criminal trial ought to be concluded, especially when the accused person is on bail. Thus, reasonable time is relative as decided in NNAJIOFOR & ORS V. UKONU & ORS (1986) 2 NSCC (VOL. 17) 1067. He submitted that the Appellant and or his co-accused persons failed to appear for trial in over 40 occasions and requested for

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adjournments for over 15 times. Thus, the delay was substantially caused by the Appellant and his co-accused persons. Furthermore, that it is trite that a person cannot claim breach of his right to fair hearing where he has willfully absented himself from the said trial. He cited in reliance A.G. RIVERS STATE V. UDE (2006) 17 NWLR (PT. 1008) 436, 456-457. He prayed that this issue be resolved in its favour.

This is apparently a case with chequered history and seemingly unending determination for over 20 years, yet still in the pipeline. “Even though it is the desire of all involved in the administration of justice to uphold the principle which States that justice delayed is justice denied, 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.” See per ONNOGHEN, JSC in OGLI OKO MEMORIAL FARMS LTD & ANOR V. NACB LTD & ANOR (2008) LPELR-3O6 (SC). “It is said that 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 civilized society

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together.” See Per NGWUTA, JSC in DANLADI V. DANGIRI & ORS (2014) LPELR-24020 (SC). The balance is what the law seeks when justice is to be administered as it is equally said that “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.”

The insurance, assurance and balance of justice stipulated in Section 36(4) of the 1999 Constitution (as amended) is “within a reasonable time by a Court or tribunal.” This Court in time past opined that “…the right to speedy trial is necessarily relative. It depends on each circumstance.” See Per MUHAMMADU LAWAL UWAIS, JSC in NNAJIOFOR & ORS V. UKONU & ORS (1985) LPELR-2056 (SC).

The gravamen of the Appellant in the present appeal is that his right to fair hearing and speedy trial have been breached, their trial having lingered now for over 20 years without conclusion or determination and seeks this Court to quash/dismiss their charges.

​The instances for the delay in the trial of the Appellants and their co-accused

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persons are contained at pages 134-139 of the record evidenced by Exhibits E, G, H, I, J, K, L, M, N, O, P, and R revealed at pages 154-180 of the printed records. For emphasis, may I narrate it infra.

​When the Appellants and their co-accused persons were remanded, they were absent in the proceedings that came up on 15/8/1997. When the Information was filed on 8/12/1997 and the matter was fixed for 26/2/1998, the Appellant and co-accused persons were absent in Court. When adjourned to 18/1/1999 and later 26/4/1999, the Appellant was absent. The Appellant and co-accused persons appeared on 24/5/1999 to oppose the admission of the prosecuting Counsel’s fiat. This caused the matter to be adjourned to 14/6/1999 when the Appellant’s plea was taken and the matter adjourned to 20/9/1999, the Appellants’ Counsel were absent, causing adjournment to 8/11/1999 for the commencement of trial. On 8/11/1999, when the matter commenced, the Appellant and some co-accused persons were absent on 7/6/2000, 25/9/2000, 22/11/2000, 12/2/2001, 13/2/2001, 09/4/2001, 10/4/2001, 4/6/2001, 4/3/2002 respectively. On 4/3/2002 when a long adjournment was granted the Appellant to

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14/4/2003, the Appellant and his co-accused were not complete for the trial to proceed, hence an adjournment was granted to 3/6/2003, still yet, the Appellant and co-accused persons were absent. They were absent individually or as a group on 14/5/2004, 13/7/2004 till 25/10/2004 when the JUSUN strike started and ended in March, 2005. When the matter came up on 17/3/2005, an adjournment was granted at the instance of the Appellant vide a letter of adjournment to 23/6/2005 but the accused persons were not complete for the matter to proceed. Same happened on 15/11/2005, 16/11/2005 and 20/2/2006. on 20/2/2006, bench warrant was issued against the 11th accused person, then adjourned to 6/6/2006 and 11/7/2006 due to the absence of the 8th accused person. From 11/7/2006 to 30/5/2013, there were shortage of Judges till when a judge was posted to handle the matter of the Appellants, which was adjourned to 18/11/2013. Again, the Appellant and co-accused persons started another gimmick of truancy to take their pleas. Another JUSUN strike struck from 14/10/2014, 14/6/2015. Meanwhile, during the pendency of the trial, the Appellant’s family member with others on 18/5/2013

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invaded the subject matter of prosecution (the seminary compound) and committed same offences they stood trial for. On 15/6/2015, the Appellant and co-accused persons were not around to take their fresh pleas. Consequently, the matter was adjourned to 30/9/2015 and another JUSUN strike started until 5/1//2016. On 19/1/2016, the Appellant and co-accused were absent in Court. The matter then was adjourned to 10/3/2016. Fresh plea was taken by the Appellant and others on 10/3/2016. The matter was adjourned to 16/5/2016 for hearing the Appellant’s application scheduled for 22/6/2016 and 23/6/2016 after ordering accelerated hearing. Then the Appellant with others applied vide a motion dated 8/3/2016 for an order quashing/dismissing all the charges against him/them and discharging him/them. The Ruling on 6/2/2017 against the Appellants and others precipitated the appeal to the lower Court and this Court.

​An accused person or the Appellants in the present case are bound by their own acts/omissions and that of their counsel. It is gleanable that the Appellants and their counsel attributed and contributed to the frustrated and delayed trial. It is expected that an

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accused person who is facing/undergoing a criminal prosecution, is tried timeously so that he knows his fate in respect of the charge(s) preferred against him. where a matter had not been determined within a reasonable time as required by Section 36 of the Constitution; and the delay is equally attributable to the commission or omission of the party complaining, public policy would disentitle such a complaint from succeeding in his complaints. It does not truly 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. It would be most inequitable given the peculiar circumstances of the instant case to allow the Appellants to reap from a tardiness that had resulted predominantly from their own deliberate lapses. The Appellant who had complicity in the long delay in his prosecution cannot equitably take benefit of his Counsel’s tardiness and also the non-attendance in Court by some of his co-defendants, to insist that because of the long delay in

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his trial, the charges against him must be quashed or dismissed. It is a truism that he who comes to equity must come with clean hands. See KAIYAOJA V. EGUNLA (1974) 12 SC 55, AJIBADE V. PEDRO (1992) 5 NWLR (PT.214) 257.

Similarly, this Court in DASUKI v. FRN & ORS (2018) LPELR-43897 (SC) alluding to ARIORI V. ELEMO (1983) 1 SCNLR 1 and FAWEHINMI v. NBA (No.2) (1989) 4 SC (Pt.1) 63 stated that a party can waive a right inuring to him for fair hearing/trial. It also made it clear that 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.

The Appellant has soiled hands to ask for the discretion or favour of this Court. This appeal therefore lacks merit and is hereby dismissed.

SC.931C/2018