Constitutional Law and Election Petition

• Pages: 221-518

8.

CONSTITUTIONAL LAW AND ELECTION PETITION

(28) ALLEGATIONS OF COMMISSION OF A CRIME

410. Need for fair hearing upon allegation of commission of a crime.

(1) “Yesufu Garba’s case (supra) merely decided highlighted the obvious that when

any one is accused of a criminal offence, he should, in his own interest and in the

interest of truth and justice, be tried by the ordinary Courts of the land. No hush,

hush inquiry will take the place of open trial. The right to fair hearing comprehends

and includes the right to be heard in open Court in defence of one’s character and

good name, when accused of misconduct amounting to a criminal offence. This right

was accorded to Kayode Adams.” - Per Oputa, J.S.C. in F.C.S.C. v. Laoye Suit

No. S.C. 202/1987; (1989) 2 N.W.L.R. (Pt.106) 652 at 707.

(2) “I would like to emphasise herein that the decision in Garba should not be taken

as a prohibition of instituting disciplinary measures against civil servants where there

has been a criminal charge or accusation. However, other considerations might enter.

For once such criminal allegations are involved, care must be taken that the provision

of S.33 (4) of the Constitution are adhered to. It is not so difficult where the person

so accused accepts his in-volvement in the acts complained of, and no proof of the

criminal charges against him would be required. He has, in such a case, been

confronted with the accusation and he has admitted it. He could face discipline

thereafter.” - Per Eso, J.S.C. in F.C.S.C. v. Laoye Suit No. S.C. 202/1987; (1989) 2

N.W.L.R. (Pt.106) 652 at 679.”

(3) “With respect, I find no distinguishing mark between this case and Garba. In

effect, the respondent was being accused of such heinous crimes as impersonation,

corruption, stealing etc. I think section 33(4) of the Constitution was applicable here.”

- Per Nnamani, J.S.C. in F.C.S.C. v. Laoye Suit No. S.C. 202/1987; (1989) 2 N.W.L.R.

(Pt.106) 652 at 689-690.

(4) “I think the reasoning of this Court on fair hearing, is also not only in ac-cord

with the law over the ages but agrees with common sense. Anyway, is there a

reason the other side should not be heard before he is condemned? Why should he

not enjoy the rights conferred upon him by law as regards his employment? Why

should he not be protected by the Constitution and have criminal charges against him

determined by the Courts or Tribunals set up by the Constitution itself? I think it is

admitted in every reasonable culture, even apart from the decisions of this Court,

that a Judge should hear both sides before determining the guilt or otherwise of a

person.” - Per Eso, J.S.C. in F.C.S.C. v. Laoye Suit No. S.C. 202/1987; (1989) 2

N.W.L.R. (Pt. 106) 652 at 681.

221

ALLEGATIONS OF COMMISSION OF A CRIME Para. 410-

222

(5) “There can be no doubt that the respondent has had very serious charges leveled

against him. In fact he has been accused of grave crimes crimes, which, if proved,

will amount not only to felonious crimes but also border on economic sabotage of the

Nation. A person so accused is entitled to be con-fronted with his crimes, be told the

nature and content of the case against him, be brought face to face with his accusers

and their witnesses, be given the opportunity to test their veracity under the fire of

cross-examination, to defend himself personally and with the assistance of a counsel

of his choice, and to call such witnesses that he wishes to call to support his case, all

these within a reasonable time and before a Court or tribunal constituted in such a

way as to ensure its fairness and impartiality. Those are the aspects of the rule of

natural justice that concern us in this case. The respondent was fully entitled to each

and every ingredient of it. No one can rightly derogate from any part of it. Even God

himself felt obliged to hear Adam before condemn-ing him of his heinous transgression.

It is no answer in any case in which a person is entitled to a hearing to say that his

offence was so obvious that any hearing would have been a mere formality. For,

quite often, when the rule of natural justice is observed and a trial is proceeded with,

it turns out that the whole affair was a conspiratorial fabrication or at best based on

mere suspi-cion. This is why once a breach of natural justice has been properly

raised in any proceeding it is not a relevant consideration to inquire whether the

Court or Tribunal in fact decided rightly. See S.C. 118/1988 Kotoye v. Central

Bank of Nigeria & Ors. (1989) 1 N.W.L.R. (Pt.98) 419. The result of a breach of

the rule is that the decision will be set aside: Adigun v. Attorney-General for Oyo

State (1987) 1 N.W.L.R. (Pt. 53) 678. - Per Nnaemeka-Agu, J.S.C. in F.C.S.C. v.

Laoye Suit No. S.C. 202/1987; (1989) 2 N.W.L.R. (Pt. 106) 652 at 727.”

411. Presumption of innocence of person accused of crime.

“We operate a system which presumes a man innocent until he is proved guilty. Our

system arrogates to the Court the burdensome duty of pronouncing this guilt, after

proof of such guilt in open Court, where the facts are subjected to the acid test of

effective cross-examination. To do otherwise will constitute an unwarranted attack

on our system of criminal justice.” - Per Oputa, J.S.C. in F.C.S.C. v. Laoye Suit No.

S.C. 202/1987; (1989) 2 N.W.L.R. (Pt. 106) 652 at 706.

(29) BIAS

412. Bias and real likelihood of bias.

“Applying the principles in all the cases, I have set above it is clearly stated that no

case is an authority for the other as such case must be decided upon its own peculiar

fact and circumstances. Not only that, it is also a cardinal principle of the right to fair

hearing that the victim need not be prejudiced nor that there have been miscarriage

of justice. What is relevant is the impression, which a reasonable or right thinking,

man sitting in Court would form of the haring. The learned trial Judge placed much

emphasis on the case of Deduwa (supra) but that case is different from the instant

Paras. 410-412 VOL. 1 PT. I CONSTITUTIONAL LAW AND ELECTION PETITION

223 Bias Paras. 412-413

one. Chief Oyetunji the record of the instant Tribunal is not only from Iroko but he is

related to Falade through marriage. Chief Oyetunji had more than official interest in

the matter because his mother, Ajose is a sister to one Abiona, the wife of Falade, a

fact that was elicited through cross-examination of forth plaintiff witness was never

contradicted. The appellant’s fear that Chief Oyetunji would use his position to

influence the decision of the commission in favour of their opponents seemed confirmed

by the introduction of Popoola’s evidence into the proceedings without their knowing.

It is my candid opinion that objection to Oyetunji being the recorder of the commission

has some merit. The proceedings of the commission cannot stand, as it did not act

fairly. The Courts have resorted to the mere flexible notion “of the duty to act fairly.”

- Per Salami, J.C.A. in Opeola v. Opadiran Suit No. CA/I/244/89; (1994) 5 N.W.L.R.

(Pt. 344) 368 at 391-392.

413. Determinant of existence of bias or real likelihood of bias.

(1) “Lord Denning in Metropolitan Properties Co. (F.G.C) Ltd. v. Lannon (1969)

1 Q.B. 577 at 599. “In considering whether there was a real likelihood of bias, the

Court does not look at the mind of the justice himself “at the mind of the Chairman of

the Tribunal or whoever it may be, who sits in a judicial Capacity. It does not look to

see if there was a real likelihood that he would, or did, in fact favour one side at the

expense of the other. The Court looks at the impression, which would be given to

other people. Even if he was as impartial as could be nevertheless, if right-minded

person would think that in circumstances, there was a real likelihood of bias on his

part, then, he should not sit. And if he does sit, his decision cannot stand) …….

Nevertheless, there must appear to be a real likelihood of bias, surmise or conjecture

is not enough ……. There must be circumstances from which a reasonable man

would think it likely or probable that the Justice, or Chairman, as the case may be,

would, or did favour side unfairly. Suffice it that reasonable people might think he

did. The reason is plain enough. Justice must be rooted in confidence; and confidence

is destroyed when right-minded people go away thinking; That Judge was biased.” -

Per Salami, J.C.A. in Opeola v. Opadiran Suit No. CA/I/244/89; (1994) 5 N.W.L.R.

(Pt. 344) 368 at 390-391.

(2) “Their Lordships went farther (6)…. Approving Lord Denning M.L.R.’s dictum

in Metropolitan Properties v. Lannon (1969) Q.B. 577 at 599 that in considering

whether there is likelihood of bias, the Appeal Court does not look at the mind of the

trial Judge to see if there is likelihood of bias the Appeal Court does not look at the

mind of the trial Judge to see if there was a likelihood that he would, or did in fact

favour; one side at the expense of the other, but rather that the impression created in

the minds of “reasonable people” and if an impression of a real likelihood of bias on

his part was created in the, minds of reasonable and right thinking people sitting in

Court during those proceedings; his decision at the conclusion of the hearing will not