⦿ CASE SUMMARY OF:
Femi Ayoade v. The State (2020) – SC
by NSA PaulPipAr
– Cross examine;
– Fair hearing;
⦿ LEAD JUDGEMENT DELIVERED BY:
Amina Adamu Augie, J.S.C.
* FOR THE APPELLANT
* FOR THE RESPONDENT
⦿ FACT (as relating to the issues)
The Appellant, as second Defendant, and two other Defendants were arraigned before the Lagos State High Court on a two-Count Charge of conspiracy to commit robbery and robbery. They were alleged to have used a toy gun to attack and rob a motorcycle rider and his passenger, and dispossessed them of the sum of N500 and N1,500 respectively.
After the close of the examination-in-chief of the PW1, the defence counsel failed to cross-examine the PW1 (due to many excuses), and this led to many adjournments, till the trial judge have to close the right to cross-examine the PW1 by the defence counsel.
The defence subsequently opened their case. At the end of the trial the trial judge convicted the Appellant for 21 years imprisonment.
Thereafter, the Appellant appealed to the Court of Appeal, inter alia, that the trial judge was wrong in foreclosing the defence counsel from cross-examining the PW1. The Court of Appeal dismissed the Appeal.
Hence, a further appeal to this Supreme Court.
1. 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.
⦿ HOLDING & RATIO DECIDENDI
1. ISSUE WAS RESOLVED IN FAVOUR OF THE RESPONDENT BUT AGAINST THE APPELLANT.
i. As the Respondent pointed out, he was represented by counsel, and it is not as if PW1 was not available or unwilling to be cross-examined. PW1 was in Court on 31/10/2012, but Appellant’s counsel said he had “a medical problem”, and could not cross-examine PW1 on that day. The Record also shows that the PW1 was in Court on 31/1/2013, but the Appellant’s counsel was not, and that is when the trial Court warned that if Appellant’s counsel was not in Court to cross-examine PW1 on the next adjourned date, 6/3/2013, PW1 will be discharged. PW1 was in Court on 6/3/2013, but the Appellant’s counsel was not, and that is when the trial Court granted the Prosecution’s application “to foreclose the right of cross-examination by the [Defence] counsel.” But in granting the said Application, the trial Court made it clear that: “The Court has given more than enough opportunity to the Defendant Counsel (sic) to cross-examine PW1, the only Witness for the Prosecution, yet the Defendant Counsel (sic) did not make use of the opportunity”. The word “opportunity” means “a time or set of circumstances that makes it possible to do something” see LEXICO powered by OXFORD. Can the Appellant seriously say that he was not given the opportunity to cross-examine PW1, who was always in Court, each time the matter was adjourned to enable the Appellant’s counsel cross-examine him? The trial Court granted the adjournments to enable his counsel cross-examine PW1, who also made himself available to be crossexamined, but Appellant’s counsel failed to take advantage of the opportunity. Even so, the Appellant had another opportunity opened to him, when he changed his recalcitrant counsel. On 30/4/2013, another Defence Counsel appeared for the Appellant. She informed the Court that their office had just been briefed, and that she had been trying to get the processes from the former Counsel to continue with the trial. She therefore asked and was granted an adjournment till 14/5/2013. On 14/5/2013, the new Counsel announced her appearance and said, “the matter is for defence, we are ready to go on”; and that was that. There was no mention of re-opening the Prosecution’s case, and no application was made to have PW1 recalled for cross-examination.
⦿ SOME PROVISION(S)
⦿ RELEVANT CASE(S)
Michael Udo v. The State (1988) LPELR 3299 (SC), this Court opined thus: The essence and rationale of fair hearing given by the Constitution and Laws of this country to a person standing trial for a capital offence are that in view of the seriousness of the charge in such a case, the trial should not be weighted against an accused person who, not being a legal practitioner does not understand or appreciate the language, procedure, and technicalities of the Court and is therefore in a definite disadvantage if he is made or allowed to conduct his case against a legally qualified person. Anything which detracts from his right to full access to a counsel at any stage of the trial amounts to unfair hearing.
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
There is an intermediate Court, Court of Appeal, which serves as “a clearing house”, so to speak, between both Courts. It hears appeals from the trial Court, and the trial Court’s findings must be affirmed or reversed by the Court of Appeal, before its decision gets to this Court, therefore, this Court would only entertain an appeal against a decision of the Court of Appeal, and not directly against that of the High Court. – Augie, JSC. Ayoade v. State (2020)
Cross-examination is to test the correctness of the testimony of the Plaintiff and his Witnesses, while re-examination is another chance to clarify facts but not an opportunity to restate the testimony given in evidence in chief all over again. If the basic requirement in attaining fair hearing is to create and give opportunity to Parties, as observed, and a Party fails to use that window, he cannot turn to complain, this was eloquently stated by the erudite jurist, Tobi, JSC in the case of Inakoju. – Augie, JSC. Ayoade v. State (2020)
However, in the instant case, the appellant was given every opportunity to be adequately represented by counsel of his choice and to be fairly heard but his counsel at every stage of the hearing failed to utilize the opportunity. He can therefore not be heard to say that he was not given fair hearing. – Ariwoola, JSC. Ayoade v. State (2020)
Fair hearing does not mean a person must be forcefully heard. Once he is given ample opportunity to be heard, the constitutionally guaranteed principle of fair hearing is fulfilled. The trial Court was therefore right to have proceeded with the hearing of the trial and concluded it the way it did. The Court below was equally right to have affirmed the judgment of the trial Court as there was no evidence of denial of fair hearing. – Ariwoola, JSC. Ayoade v. State (2020)
It has been held in several decisions of this Court that the crucial determinant of whether or not a party has been denied fair hearing is whether the parties were afforded an equal opportunity to present their case before judgment is delivered. The Court will take an objective view of the entire proceedings. The true test of fair hearing is the impression of a reasonable man present at the trial and whether from his observation, justice has been done in the case. – Kekere-Ekun, JSC. Ayoade v. State (2020)
It rather goes the other way round that when a party completely refuses or fails to cross examine a witness as in this case, such a party will be deemed to have accepted the testimony of the said witness. – Abba A Ji JSC. Ayoade v. State (2020)