Opportunity to Defend-Right of Confrontation and Cross Examination-Right to Counsel- Compulsory Acquisition of Property

The Constitution under the Fundamental Human Rights provides that a person charged with a criminal offence shall be entitled to be given adequate time and facilities for the preparation of his defence.

This means that if for any special reason he can not defend himself properly without an adjournment, the court should grant him legitimate adjournment. See Alhaji Ramonu Bello V. Dr. M.O. Thompson, Maxwell V. Keun (1928); Solanke V. Ajibola (1996/97). See A.T. Oyewo, in his book titled “Cases and materials on the Principle of Natural Justice”.

Therefore where in a given case it is conclusively established that the trial has been conducted in such a way as to lead but to the conclusion that an accused person was not offered adequate opportunity to put across his case, as for example, when an application for adjournment has been unreasonably or capriciously refused, or that the right to call a witness whose evidence is material to the just determination of the case has been denied, a Court of Appeal will undoubtedly interfere with the judgement of the trial court and hold that a failure of justice has been occasioned.

Lastly, it must be emphasised that a person standing trial must be allowed to call any witness to testify in his or her favour without any hindrance.

In summary, the following safeguards are available to an accused in a criminal trial:

1. An accused shall be presumed innocent until he is proved guilty. 
2.  An accused has a right to be informed promptly of the nature of  the offence in the language that he understands.
3. He has a right to be given adequate time and facilities for the  preparation of his defence, Gokpa V. I.G.P. (1961). Where the  accused was brought from Port Harcourt without his counsel and  an application for adjournment of trial was refused by the trial  court. It was held that there was no fair hearing.
4.  An accused has a right to defend himself in person or by a  counsel of his choice. But in Awolowo V. Federal Minister of  Internal Affairs (1962) and Awolowo V. Sarki (1962) was held  that a counsel means a Nigerian that is enrolled to practice in  Nigeria and one that is free to enter Nigeria without prohibition.
5.  Also an accused has a right to examine witnesses called by the prosecution and obtain the attendance of witnesses in his favour  on the same condition as those applying to prosecution witnesses. 
6.  An accused has a right to, without payment, the assistance of an  interpreter if he can not understand the language used at the trial.  See Ajayi V. Zaria N.A. (1964).
7. He has also a right to obtain copies of the judgement within 7  days – Note in this regard that section 258(1) of the Constitution. 
8. An accused can not be convicted for an offence that did not constitute an offence at the time of the act or commission. 
9. An accused can not be tried a second time for an offence for  which the accused had been previously convicted or acquitted  and or pardoned.
10.  Right not to be compelled to give evidence at the trial is accorded  to an accused person.
11.  Right not to be convicted for an offence not defined by law is  also available to an accused i.e. accused can only be charged with  a statutory offence. In Aoko V. Fagbemi (1961) High Court  quashed the conviction of the appellant by a Customary court for  the offence of “committing adultery by living with another man  without judicial separation”.

Right of Confrontation and Cross Examination

It is a fundamental rule of natural justice that a man charged before any tribunal should know the nature or full particulars of the charges against him before the trial. He should be given copies of the evidence taken without him, and he should be permitted to make cross examinations on them, otherwise justice is not done. In other words, he must be give adequate opportunity to know the case he has to meet and failure to supply him with a full statement of the facts or evidence upon which a panel and eventually a tribunal relied will be a denial of justice and a breach of the rules of Natural Justice.

This was the ratio decidendi of the Federal Supreme Court in the case of Denloye V. Medical and Dental Practitioners Disciplinary Tribunal (1965).

In this case, it was alleged that Denloye issued Certificates of fitness on various dates to three different persons after collecting monies from each one of them, and without examining them. He was preferred these charge; but instead of allowing him to be present before a panel who took evidence on this, evidence was taken without him, and the matter was eventually brought before the tribunal. At the tribunal, his counsel urged for the production of evidence which was said to be confidential  and this he was refused; nor were even the witnesses recalled. He was found guilty and he appealed accordingly.


The Federal Supreme Court held that while it is not in dispute that any tribunal of this nature is entitled to decide its own procedure and lay down its own rules for the conduct of inquiries regarding discipline as was decided in R.V. Central Tribunal Ex-Parte Parton, it is of the utmost importance that the inquiry be conducted in accordance with the principles of Natural Justice. The court further referred to the case of Russel V. Duke of Norfolk (1949) and the words of Tucker L.J. (as he then was) who said:-

“The requirement of natural justice must depend on  the circumstances of the case, the nature of the

inquiry, the rule under which the tribunal is acting, the  subject-matter that is being dealt with and so forth”. Surely the appellant in the present case was entitled to know the nature of the evidence given against him on the 7th August, 1967 before the panel; and it was wrong to withhold this evidence from him.

Referring to such right, the Privy Council in the case of Kanda V. Governor of the Federation of Malaya (1962) was quoted as follows:

“If the right to be heard is to worth anything, it must  carry with it the right in the accused man to know the  case which is made against him. He must know what  evidence has been given and what statements have  been made affecting him, and then he must be given a  fair opportunity to correct or contradict them”.

As a result of all the above propositions, the Supreme Court held that justice has not been done to the appellant and therefore allowed his appeal.

Right to Counsel

The constitutional provision states that every person who is charged with a criminal offence shall be entitled to defend himself in person or by legal practitioners of his own choice.

The interpretation of this provision was vividly curtailed in the case of Awolowo V. Federal Minister of Internal Affairs (1962) where Mr. Gratiaen was refused entry into Nigeria by an immigration officer through the directive of the Federal Minister of Internal Affairs; and consequently was unable to defend the plaintiff. As a result the plaintiff complained that the refusal is prejudicial to his best interest as his liberty is in jeopardy.


The Plaintiff further complained that this refusal was a denial of his constitutional right as provided for in section 21(5)(c) of the second schedule to the Nigerian (Constitutional Order in Council 1960). But the Court held that the provision referred to was never intended to be invoked in support of the expensive undertaking of importing lawyers whether British or otherwise into Nigeria.

The Court further held that section 21(5)(c) of the Constitution is subject to certain limitation as follows:-

“It is clear that any legal representative chosen must  not be under a disability of any kind. He must be  someone who, if outside Nigeria, can enter the country  as of right, and he must be someone enrolled to  practice in Nigeria. For if the legal representative can  not enter Nigeria as of right, and he has no right of  audience in the Nigerian Courts then he is under  disability”.
…………………….The Constitution is a Nigerian  Constitution meant for Nigerians in Nigeria. It only  runs in Nigeria. The natural consequence of this is  that the legal representative contemplated in
section 21(5)(c) ought to be someone in  Nigeria, and not outside.  Compulsory Acquisition of Property

All public administrators must respect the fundamental right to own properties. Therefore if any piece of land is needed by any government for public purposes, it may be compulsorily acquired, while adequate compensation should be given to the owner of the land compulsorily acquired.

Please note that the quantum of compensation is always based on the value of the land as at the time of acquisition.

As a matter of fact the English law recognises the presumption against confiscation of property without adequate compensation; as it was revealed by Lord Atkinson thus in the case of Central Control Board Liquor Traffic V. Canon Brewery Company Limited (1819).

“That Canon is that an intention to take away the  property of a subject without giving him a legal right  to compensation for the loss of it is not to be imputed  to the legislature unless that intention is expressed in  unequivocal term”.

The Nigerian law supports this view and by Decree No. 33 of 1976 it provides for interest also to be paid apart from compensation once a person has given up possession of his property as a result of compulsory acquisition.

Section 6 of the Decree states as follows:

“Where an owner of an estate or interest in land  compulsory acquired is required to yield up possession of his estate or interest in land prior to the  payment of compensation or provision of alternative  accommodation, as the case may be.  Interest at the bank rate shall be payable on the value  of the estate or interest acquired (as determined  pursuant to this Decree) for the period between the  entry on the land and the payment of compensation  or the provision of alternative accommodation”.

This is also supported by the case of Malewood Pulp & Paper V. Newsbrunswick Electric Corporation Limited (1928) which provides for interest after possession has been taken on any compulsory acquisition embarked upon unless otherwise statutorily directed.

CONCLUSION

The provisions of the fundamental human rights are compelling, salutary and a sine-qua-non for the organic growth of any civilized and democratic nation. They do determine like a barometer or as ambidexter the success or failure of any particular government. They are indeed promotive of democracy and in fact enemies of despotism. They have been likened to be pivots upon which a successful government stands and grows for without them a particular government may be sterile, vindictive and odious in the estimation of the right thinking members of its society.

Therefore the more they are allowed to exist in the statute books in any country the better and satisfying that particular government will be, for any curtailment of them usually exposes a government to ridicule, opprobrium and dysfunctionalism.

The idea of fundamental human rights has been discussed at length of having episcopal origin for they have been acclaimed to be in existence before the birth of the law. And that was why it was held in Joseph Garang xors v. The Constituent Assembly, High Court Cs/93/1965 (unreported) that the fundamental human rights were not created by the state but are external and of universal institution, common to all mankind and ante-dating the state and founded upon natural law. But be that as it is, there have been scholastic discussions on the justifiability of retaining these rights in the statute books of any permanency and at all times immutable hence it has been opined that there is an inbuilt tendency to erode upon or curtail some of these provisions during emergency periods.


Thus if a particular government sees reason in suspending any or part of the so-called fundamental human rights, it can do so for the smooth running of the government. The test therefore is subjective for each particular case must be considered according to its circumstances. Therefore, in order to restrict or regulate freedom, the State is imperatively bound to use the system of either repression or prevention. It was conceded by the International Commission of Jurists in 1962 that in a free society, preventive measures are considered legitimate to re- establish law and order if the latter has been disturbed, or in order to ward off grave dangers which menace it in a direct and imminent fashion.

SUMMARY

The summation of this therefore is that any government is free to suspend the fundamental freedom whenever it deems it fit to do so, and a typical example was seen when the Spanish government suspended Article 14 of the Charter by the decree of June 8, 1962 thus depriving Spanish people for two years of the right to establish freely their place of residence on national territory.

Also by virtue of Article 35 of the Charter of the Spanish people, the enforcement of Articles: 12 – freedom of expression and of the press, 13 – inviolability of correspondence, 14 – freedom of residence, 15 – inviolability of domicile, 16 – freedom of assembly and association, and 18 – Immunity from detention, may be temporarily or partially suspended by the government. These were usually done by means of decrees which strictly limit the application and duration of such measures.

A similar provision is contained in the 1979 Nigerian Constitution which provides for restriction and derogation from fundamental human rights. Here, section 41 reads: - Nothing in sections 34, 35, 36, 37 and 38 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society.

(a) in the interest of defence, public safety, public order

or (b) public morality or protecting the rights of freedom of

other persons.

and (2) …………………no Act shall be invalidated by reason only that it provides for the taking during periods of emergency, of measures that derogate from the provisions of section 30 or 32 of the Constitution…………All measures taken to derogate from fundamental human rights are justifiable to the extent that those measures are reasonably justiciable for the purpose of dealing with the situation that exists during that period of emergency. This provision was re-enacted in section 45 of the 1999 Constitution.

TUTOR-MARKED ASSIGNMENT

What do you understand by the right to freedom of property?