Persons sitting as judges in competent courts or tribunals enjoy absolute respect for their honourable status and most especially, for the qualities and skills they possess, such as patience, intelligence, firmness, courage, open-mindedness, listening and communication skills, knowledge, understanding, tact, courtesy, judicial temperament, integrity, probity, humility, punctuality, among others.

While we have many judicial officers in Nigeria who possess these qualities, we have a few others who are yet to get there. Recently, the Supreme Court came down heavily on an overbearing Magistrate who was unapologetically late to court. This was in the case of Emeka Offor & Ors. v. C.O.P. Rivers State Command & Ors. [2022] 9 NWLR (Pt. 1835) 241. The facts are interesting.

The Story

Emeka Offor, Charles Obasi, Anijekwu V. Chukwuemeka and Bartholomew Agada (now deceased) were standing trial at the Chief Magistrate’s Court, Port Harcourt, Rivers State, in Charge No. PMC/284C/2004 pending at the time before His Worship, Promise Iroanya. On 12 July 2004, the matter came up for hearing. However, as at 11.00 a.m., the presiding Chief Magistrate was yet to arrive the Court. In an unusual practice, Counsel to the accused persons as well as the Police Prosecutor, including the Counsel holding watching brief for the complainant agreed with the Court’s registrar for an adjournment of the case (off record) to 19 August 2004 for hearing.

Based on this agreed adjournment, Counsel to Emeka Offor, Counsel to Chukwuemeka and Counsel to Agada left the courtroom to attend to other matters they had for the day. But Emeka Offor, Charles Obasi, Counsel to Charles Obasi, Counsel holding watching brief for the complainant and the Police Prosecutor lingered in Court.

After the exit of the other Counsel and parties, the Chief Magistrate arrived in the courtroom, ignored the adjourned date, called the case and commenced the hearing of the case in the absence of these other Counsel and parties. Counsel to Charles Obasi, Counsel holding watching brief for the complainant and the Police Prosecutor who had lingered in Court announced their appearance. The Police Prosecutor fielded his first witness (PW1) who testified. The matter was thereafter adjourned to 18 August 2004 for cross-examination of PW1.

Dissatisfied with the hearing in the absence of his Counsel, Emeka Offor (as Appellant) applied to the High Court of Rivers State for an order of certiorari to quash the proceedings of 12 July 2004. The application was dismissed. His appeal to the Court of Appeal was also dismissed. He further appealed to the Supreme Court and succeeded.

The Supreme Court held on 29 January 2021 that in any criminal trial, the calling of a witness and the adducing of any evidence in the absence of the Counsel to an accused person being tried is a serious irregularity that renders that trial a nullity. Consequently, the Appellant’s right to fair hearing under Section 36(6)(d) of the 1999 Constitution (as amended) was breached.

In his Judgment, Eko, JSC recounted what transpired and addressed the conduct of the Chief Magistrate and the Police Prosecutor (at pages 264-265 of the report):

On 12th July, 2004 he came very late to court – after 11.00 a.m. He offered no apologies for this unwholesome conduct. He sent no words previously to his court clerk and staff and of course the litigants and their respective counsel that he was going to be late for whatever the reason. Convinced that he was no longer going to come to court, the Police Prosecutor, the counsel holding watching brief and the Defence/Appellant’s Counsel agreed with the court clerk that another date be taken. The clerk then adjourned the matter to 19th August, 2004. All counsel for the respective Defendants and the complainant dispersed. The Prosecutor, the 1st accused and the Appellant lingered. The learned Chief Magistrate surfaced after 11.00 a.m. and after the parties, including the Appellant’s counsel, except the Prosecutor had dispersed and left the court premises. The learned Chief Magistrate, behaving in a manner of an imperial Majesty – he that must be obeyed, entered the courtroom to commence proceedings. He would not listen to any entreaties that this particular matter had been adjourned and the parties dispersed. The counsel to 2nd – 4th accused persons had left the court. Only the Prosecutor and the Counsel to the 1st accused were present. Appellant and the 1st accused were also present. To stamp his authority, the learned Chief Magistrate insisted on and took the evidence-in-chief of the PW1. He adjourned the cross-examination of the PW1 to 18th August, 2004 – not even to the 19th August, 2004 his clerk had earlier given to the parties. Not done: at the prompting of the same Police Prosecutor (who had earlier agreed to the adjournment to 19th August, 2004 and who also was aware that 2nd – 4th accused persons and their counsel left the court) that the 1st accused and the PW1 be bound over to keep the peace; the Chief Magistrate obliged and accordingly made the order as prayed. This is only a comic reminder of the “Ichoku’s court” in NTA popular soap opera. Sadly, the High Court and the lower court allowed and endorsed the apparent travesty of justice… The Appellant’s right to fair hearing had been breached by the Chief Magistrate. The two courts below were wrong to have held to the contrary.

The Supreme Court also held clearly that it was unconscionable on the part of the Police Prosecutor to have proceeded in the matter, in view of his participation and acquiescence to the earlier adjournment. This same fact afflicted and vitiated the entire proceedings of the Chief Magistrate on that date.

More experienced lawyers know that the conduct of the Police Prosecutor in this case is nothing to be surprised about and that it is not peculiar to police officers alone. Sadly, any lawyer engaging in “gentleman agreement” with opposing counsel in court does so at his or her own risk.

The court’s registrar in this case must share in the blame. No responsible registrar adjourns a matter without prior communication with the presiding judge or magistrate to confirm that the matter should be adjourned to a specific date that is convenient not only to the counsel but to the court. The convenience of the court supersedes.

Stephen Azubuike
Author: Stephen Azubuike
Stephen is a lawyer with expertise in Commercial Dispute Resolution and Technology Law practice. He is a Partner at Infusion Lawyers. He has successfully argued cases from the High Courts of various jurisdictions to the Appellate Courts on behalf of financial institutions, other corporate bodies and multinationals. He has advised a number of both established and startup tech companies. He tweets @siazubuike.
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