Magistrate Courts

• Pages: 807-845

MAGISTRATE’S COURT

(1) ADJOURNMENTS

2301. A Court will not grant an adjournment for the purpose of delaying the

proceedings.

“That is not what was disapproved of in Thomas Sorunke v. The King [1946] A.C.

316, in which case the Privy Council held that the refusal to issue processes to com-

pel the attendance of witnesses for an accused person unless he was prepared to

disclose to the Court his reasons for wishing to call the various witnesses resulted in

a grave miscarriage of justice. In that case the point that arose for determination was

the propriety or otherwise of imposing such conditions upon the accused before he

could be allowed to have processes issued for compelling the attendance of his wit-

nesses. That was not the case here. We cannot subscribe to the view that a Court of

trial should adjourn the hearing at the instance of any party (be it the accused or the

prosecution) when it is manifest that the application for such adjournment was made

only for the purpose of delaying the proceedings, and a fortiori, when, as in this

case, it was being made after a total inadvertence to the directions of a Court, a

compliance with which would probably have obviated the necessity for any such

application.

In the case of Thomas Sorunke v. The King (supra), the Privy Council

expressed the view that it is not within the province of the trial Judge in determining

whether or not he should allow witnesses to be summoned on behalf of the accused

to take into consideration the probability of the witnesses being able to give material

evidence, though their Lordships added that: “In any case the Court can always

protect itself by issuing process, but if convinced that the lateness of the application is

not due to genuine mistake or justified reason it can refuse to adjourn the trial.” We

have already expressed our views that in the circumstances of the present case, no

miscarriage of justice had been occasioned by the refusal of the trial Judge to adjourn

the hearing of the case. This ground of appeal must also fail.”- Per Coker, J.S.C. in

Omega v. State Suit No. S.C. 430/1964; (1964) All N.L.R. 373 at 379; (1964) 3

N.S.C.C. 283 at 286 – 287.

2302. Adjournment is at the discretion of a Judge and it is presumed to

have been granted in the interest of justice and fair hearing until the con-

trary is proved.

“Fair hearing, therefore, must mean a trial conducted according to all the legal rules

formulated to ensure that justice is done to the parties to the cause. “Reasonable

time” must mean the period of time which, in the search for justice, does not wear out

the parties and their witnesses and which is required to ensure that justice is not only

done but appears to reasonable persons to be done. In the case of Isiyaku Mohammed

v. Kano Native Authority (1968) 1 All N.L.R 424, Ademola, C.J.N., said at 426: -

807

Adjournments Paras. 2301,2302

“It has been suggested that a fair hearing does not mean a fair trial. We think a fair

hearing must involve a fair trial and a fair trial of a case consists of the whole hearing.

We therefore see no difference between the two. The true test of a fair hearing …

is the impression of a reasonable person who was present at the trial whether,

from his observation, justice has been done in the case.” Thus, a party applying

for adjournment to enable him to call witnesses is, in my opinion, not waiving his right

to fair hearing within a reasonable time. Similarly, an adjournment granted on medical

grounds or to enable a party to prepare his case does not amount to a waiver of the

right. It is to be observed that the grant of adjournment is in the discretion of the

Judge and the discretion is expected to be exercised judicially. These adjournments

until the contrary is proved, must, in my opinion, be presumed to have been granted in

the interest of justice and fair hearing.”- Per Obaseki, J.S.C. in Ariori & Ors. v.

Elemo & Ors. Suit No. S.C. 80/1981; (1983) All N.L.R. 1 at 25; (1983) 14 N.S.C.C.

1 at 18.

2303. For a right to a speedy trial to be solely a right for the benefit of a

party to a case, it must not preclude the right to public justice.

“I shall, therefore, restrict myself to a short commentary on speedy trial and fair

hearing resulting therefrom. In the determination of cases by Courts of the land,

speedy trial and fair hearing are an integral part of justice. Inter alia, a State exists to

do justice - justice to the State and justice to the citizens. The doing of justice is an

obligation which the State owes to its citizenry and which it exercises principally

through its third arm, namely, the Judiciary.

Any functionary of the Judiciary to whom the discharge of this sacred obliga-

tion is entrusted on behalf of the State owes it as a duty to the corporeal of the

citizenry, of which the State is a representation and a crystallization, to do undiluted

and unmutilated justice to which society is entitled and from which no member of the

society is permitted to derogate. Speedy trial and fair hearing therefore become an

aspect of public justice which sets a standard fixed by law and society, which a Judge

must attain in the determination of cases before him, and in respect of which no

person in society is allowed to compromise.

Fair hearing, of which speedy trial is one of the factors that go to make it fair,

is therefore, in my view, a right involving the public policy that judicial proceedings

shall not fall below a certain standard, namely a standard that trials of cases must be

fair. Immutable justice demands that justice must be even-handed and where injus-

tice has been done by unfair adjudication, nobody can set a subjective standard of

justice for himself by acquiescing to it. Indeed, in such a circumstance, ideally, both

the winning party and the losing party have a duty to society, to have the injustice, in

the interest of society, rectified.”- Per Aniagolu, J.S.C. in Ariori & Ors. v. Elemo &

Ors. Suit No. S.C. 80/1981; (1983) All N.L.R. 1 at 29; (1983) 14 N.S.C.C. 1 at 21.

Paras. 2302,2303 Vol. 15: MAGISTRATE’S COURT 808

2304. It is counsel’s duty to see that some other member of the bar hold his

brief if he was unable for any good reason to attend Court.

“In this case, the appellants from the commencement of the hearing of the charge

against them had the benefit of learned counsel assigned to them by the State for

their defence and save for the proceedings in Court on the 4th day of February, 1965,

they were in fact defended by counsel throughout the trial. When on the 1st Febru-

ary, 1965 the Court adjourned further hearing in the case to the 4th of February, the

appellants and their counsel were in Court. No reason was given to the Court on the

4th of February, 1965 for the absence of their counsel by anyone.

The appellants themselves did not ask for an adjournment or postponement of

further hearing. We take the view that the proceedings of the 4th day of February,

1965 did not in those circumstances offend the provisions of Section 186 of the Criminal

Procedure Code (Northern Nigeria) and Section 22(5)(b) of the Constitution of the

Federation. As was said by Humphreys J. in R. v. Mary Kingston: “If he (counsel)

was unable for any good reason to attend his duty, as everybody knows, was to see

that some other member of the Bar held his brief and was in a position to represent

the accused person…In those circumstances we think it right to say that in our opin-

ion the Assistant Recorder was perfectly justified in continuing the trial of a person

although she was unrepresented…” See 32 Cr. App. R. 183 at 187-188.”- Per Idigbe,

J.S.C. in Yanor and Anor. v. State Suit No. S.C. 165/1965; (1965) 1 All N.L.R. 199

at 203; (1965) 4 N.S.C.C. at 150.

2305. Refusal of request for adjournment to summon witnesses when the

prosecution case has been closed.

“The trial Judge granted an adjournment on the ground of Counsel’s indisposition but

refused to do so on the ground that Counsel proposed to summon witnesses. It is to

be noted that an adjournment until the following Monday was in fact granted. No

application for witness summonses or subpoenas for any particular witnesses was

made before the trial resumed or subsequently. At that point of time, only seven out

of the sixteen prosecution witnesses had been called. Later, after the close of the

case for the prosecution on the 13th January, 1964 and on being examined by the

Court, in accordance with Section 236 of the Criminal Procedure Code, the appellant

informed the Court that his defence was an alibi and that he proposed to call two

witnesses (including a doctor) who are resident in Eastern Nigeria. He then asked

for an adjournment of the trial to call these witnesses and also for a waiver of the

necessary Court fees. The application for adjournment was opposed by Counsel for

the prosecution who referred to the appellant’s non-compliance with the previous

Order of the committing Magistrate, requesting the appellant to submit the names of

his witnesses within a week of that Order.

The learned trial Judge refused the application for adjournment holding that

there was no justification for an adjournment of the trial which had then been going

809 Adjournments Paras. 2304,2305