LEGAL PRINCIPLE: CONSTITUTIONAL LAW – Fair Hearing – Judge Proceeding in Absence of Prosecuting Counsel – Whether Constitutes Breach of Fair Hearing
PRINCIPLE STATEMENT
The prosecution closed its case on 19/9/90... On 24 - 10- 90, the accused and his counsel were present. The prosecuting counsel was absent and there was no information to the court or anybody as to the reasons for her absence. The learned counsel for the accused did not apply for any adjournment and I do not see why he should even do so. The defence opened... From the above summary of the proceedings of the trial Court on 24/10/90, I cannot conceive any action or utterance of the trial judge tending to show bias. If there is anybody to complain about the proceedings of 24/10/90, it is the prosecution who lost the opportunity to cross-examine the accused and address the court. None of the provisions of section 33 of the 1979 Constitution was breached in so far as the accused is concerned.
RATIO DECIDENDI (SOURCE)
Per Ogwuegbu, JSC, in Uluebeka v. State (2000) NLC-341999(SC) at pp. 4–5; Paras C–A.
"The prosecution closed its case on 19/9/90... On 24 - 10- 90, the accused and his counsel were present. The prosecuting counsel was absent and there was no information to the court or anybody as to the reasons for her absence. The learned counsel for the accused did not apply for any adjournment and I do not see why he should even do so. The defence opened... From the above summary of the proceedings of the trial Court on 24/10/90, I cannot conceive any action or utterance of the trial judge tending to show bias. If there is anybody to complain about the proceedings of 24/10/90, it is the prosecution who lost the opportunity to cross-examine the accused and address the court. None of the provisions of section 33 of the 1979 Constitution was breached in so far as the accused is concerned."
EXPLANATION / SCOPE
A judge proceeding in the absence of prosecuting counsel does not violate the accused’s fair hearing rights. The accused and defence counsel were present. The prosecution, not the accused, suffered prejudice by losing cross-examination opportunity. The accused has no constitutional right to have prosecuting counsel present. The judge showed no bias. Fair hearing for the accused means opportunity to present defence, be heard, and have impartial tribunal. Absence of opposing counsel does not infringe these rights. The prosecution’s absence may disadvantage them, not the accused. The accused cannot complain of prejudice from the prosecution’s voluntary absence.