a. Be informed promptly in the language that he understands and in details of the nature of the offence;
b. Be given adequate time and facilities for the preparation of his defence;
c. Defend himself in person or by legal practitioners of his own choice;
d. Examine, in person or by his legal practitioner, the witnesses called by the prosecution before any court or tribunal and obtain the attendance and carryout the examination of witnesses to testify on his behalf before the court or tribunal on the same conditions as those applying to the witnesses called by the prosecution, and…
The above fundamental constitutional provisions are targeted towards ensuring that a suspect or an accused person is accorded every deserved opportunity to defend himself and prove his innocence before any court or tribunal in this country. Unfortunately, these provisions have been honoured more in breach through the practice of holding charge.
Among the above paragraphs of section 36 (6), paragraph (b) is the most abused or violated. This is because a situation where the accused person is brought before a court lacking jurisdiction on a charge sheet which will be read to him without his plea nor bail granted him, but rather remanded in prison custody cannot by any imagination grant that person adequate time and facilities for the preparation of his defense at the appropriate court during his trial.
The corollary of this subjection is eventual plea of guilt or poor defense, if any, by or on behalf of the accused person. And this might end in his undeserved conviction.
The importance of the assistance of counsel to an accused person was also underscored by David Fellman in the following words:
“Without the assistance of counsel, most persons accused of crimes are not likely to have an adequate defence. A defendant needs a lawyer as urgently as a sick man needs a doctor and in many instances, more urgently, for while nature often heals the sick without outside aid it seems to have little concern for the plight of the accused.”
From the foregoing, it is my humble opinion that a situation where the accused is moved directly to a court room from prison custody for trial without giving the chance to take advantage of the constitutional provisions, on ground of holding him charge is condemnable in its entirety and the courts must stand out against this amorphous practice by the police. The reason is because trials cannot be regarded as ‘fair’ if defendants lack legal representation and therefore unable to participate at the trial on an equal footing with the prosecution. Even where in the discretion of the court, the accused is not entitled to bail owing to the circumstances surrounding his case, these rights as provided by the constitution are fundamental to the accused as a human being and for the interest of fair trial, the court should starve off any dangerous or unwarranted or stealthy encroachments.
Earlier, Justice Kayode Eso, J. S. C., also stated on the role of the courts as follows:
…it is the function of judges to keep the law alive in motion and to make it progressive for the purpose of arriving at the end of justice without being inhibited by technicalities to find every conceivable and acceptable way of avoiding narrowness that would spell injustice. Short of a judge being a legislator, a judge must possess an aggressive stance in interpreting the law.
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