EXTENDING THE FRONTIERS OF FAIR HEARING IN CRIMINAL LITIGATIONS: Section 36 of the 1999 CFRN provides for the Right to Fair Hearing, this Right interalia gives the accused the latitude to choose counsel of his choice to represent him in criminal actions. This may seem easy but the turn out of events leaves so much to be desired. Now how does he get the counsel of his choice? The accused is in detention if his bail application is denied, his family hussles for a lawyer. The legal market is stock up with various lawyers of differing skills , the acclaimed professionals who have the skills and the self acclaimed ones, who make a lot of noise than the skilled ones, who brag with skills they do not have or ready to acquire! It is in the midst of these variety of lawyers that the accused chooses a counsel. Now what motivates a particular choice of counsel? Lots of considerations play out. Is he the noisy advocate who is in the news as an activist, he may have no skill but his noise, pomp and peagentry gives him away as a legal luminary, is he the business man lawyer whose money come from chains of business, who is bereft of legal skills, his lush and well furnished office may give him away as a legal colossus whereas he is empty! The financial standing of the accused plays a great role. If he cannot afford a good lawyer, then he opens himself up to the good samaritan who comes to Prisons picks a client to demonstrate his exuberance only to rail road the defendant owing to his crass ineptitude to his destruction! Is he the Old Lawyer, whose age at the Bar has no bearing on his experience, he may be 20 @ the Bar, but his skills is equivalent to a month old lawyer. It is these vagaries that the accused is exposed to in choosing counsel! To compound the situation, that may be the first time accused person is seeking for counsel, so he has no prior knowledge of who is who! In most cases the accused choice of counsel is borne out of ignorance, a great risk! The law adopts a cosmetic approach, it deems that an accused once represented by counsel cannot complain of denial of fair hearing. This is borne out of the Supreme Court Verdicts in Gozie Okeke vs State (2003) 15 NWLR PT (842) 25@111; paras A-C, Okosi vs State et al. These cases opine that once an accused is represented by counsel, it is enough to ensure fair hearing, no cognisance is taken of the skill or expertise of counsel! In the eyes of the law competence of counsel is non-sequitur! Is this the best approach? I answer in the negative. A Criminal Trial is a delicate business, the life/destiny of someone is on the line. I suggest that in construing the provision of Section 36 of the CFRN competence of counsel for the reasons stated earlier on should be reckoned with, where the court finds out that counsel did a shabby job, it should be declared a void trial and the conviction set aside! Competence should be considered in deciding whether a defendant had adequate facilities to prepare for his trial! In Okosi vs State @ Pages 662-663, OPUTA JSC, as he then was, made this finding How did learned counsel for each of the appellants deal with the evidence of this most important witness? Mr. Ibekwe for the 1st appellant asked one irrelevant and feeble question which did not address itself to any of the serious allegations made against his client. One wonders whether Mr. Ibekwe really understood the gravity of the charge against his client and the seriousness of each allegations.......... Did Mr. Aghadiuno for the 2nd appellant fare any better, the answer is no . The Supeme Court dismissed both appeals and confirmed the DEATH sentence imposed by the Trial Court and affirmed by the Court of Appeal!....... From the dictum of Oputa JSC, as he then was, it is oibvious that the appellants counsel performance left much to be desired. Surprisingly the Law on ngligence of counsel is weak. Section 9 of the LEGAL PRACTIONERS ACT exculpates counsel for negligence emanating from conduct of cases in court. The Lawyer sends a man to his peril and goes home unscathed, no sanctions, no skin pains! I am of the opinion that when the court is convinced of issues like this, it is better to nullify the trial, send it to trial court and direct the trial court to ensure that a skilled attorney whose skills is not in doubt represents the defendants, this would ensure a healthy fair trial and guide against a man sent to his early grave owing to anothers ineptitude! It is not enough to say or hold that when an accused is disatisfied with the services rendered he can call for a change! Tobi JSC, as he then was, in Okeke vs State supra held that failure of the appellants counsel to raise the defence of insanity@ the trial is no excuse that he did not have a fair trial. Tobi JSC went on to say that the accused ought to have changed counsel when he noticed that he is not well reprsented! An accused may not have the skill to discern this ! What do U think?
Posted on: Sat, 05 Apr 2014 19:46:56 +0000
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