Fair Hearing and Legal Representation of the Indigents: An Assessment of Legal Aid Scheme in Kano State, Nigeria

ABSTRACT The idea oflegal aid in Nigeria was first conceived in 1961 with a Bill to establish the Legal Aid Act, which did not materialize as a result ofthe civil war. Legal Aid Association was formed by some lawyers with the purpose of providing legal aid to the poor, culminating in to the promulgation of the Legal Aid Decree no. 56 of 1976, which metamomphose in to the present LegalAid Act 2011.In order to assess the state of legal aid scheme in Kano State with a view to ascertaining the right to fair hearing of the indigents given legal representation is safeguarded, the study analyses the provisions of the Legal Aid Act and that of the 1999 Constitution as amended in 2011 relating to fair hearing and also the constitutional safe guards lofttir hearing. The doctrinal methodology was adopted to review both primary and secondary sources of information relating to the study. The study found that both rights to fOir hearing and legal representation are constitutionally enshrined. The right to legal representation is limited to offences under the Penal Code Law as 5pec~fied under the second schedule ofthe Legal Aid Act and therefore the two rights are not all encompassing, since legal representation does not cover all offrnces. The amendment ofthe constitution and the LegalAidAct was recommended.

TABLE OF CONTENTS

DECLARATION

DEDICATION

ACKNOWLEDGEMENT iii

TABLE OF CASES

TABLE OF STATUTES

LIST OF ABBREVIATIONS

TABLE OF CONTENTS

ABSTRACT

CHAPTER ONE 1

GENERAL INTRODUCTION 1

1.1 Background to the study 1

1.2 Statement of problem 13

1.3 Objectives of the study 13

1.3.1 General objectives 13

1.3.2 Specific objectives 14

1 .4 Research questions 14

1.5 Scope of the study 14

1.6 Significance of the study 14

1.7 Methodology 15

1.8 Literature review 16

1.9 Organizational lay out 24

CHAPTER TWO 25

An examination of the provisions of Legal Aid Act Cap L9, Laws of the Federation of

Nigeria, 2011 25

2.1 Introduction 25

2.2 The Legal Aid Act Cap L9 Laws of the Federation of Nigeria, 2011 25

2.2.1 Establishment of the Legal Aid Council 26

2.2.2 Legal Aid Advice 27

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2.2.3 General Fund and legal aid and access to justice fund 29

2.2.4 Panels of Legal Practitioners representing Indigent persons 30

2.2.5 Treatment of information received from Indigent persons 31

2.2.6 Penalty for false information 32

2.2.7 Power to make regulations 32

2.3 Critic of provisions of the Legal Aid Act 33

2.3.1 Community legal service 33

2.3.2 Merit and Indigent test 33

2.3.3 Legal aid to persons with income above national minimum wage 34

2.3.4 Ascertainment of means 34

2.3.5 Determination of remuneration 35

2.3.6 Sources of fund 36

2.3.7 Enjoyment of privileges 37

CHAPTER THREE 39

The principles of natural justice and fair hearing 39

3.0 Introduction 39

3.1 The Principle ofNatural justice 40

3.2 The Principle of impartiality 45

3.2.1 Fair hearing under the Nigerian Constitution 47

3.2.2 Prior acquaintance with subject matter 50

3.2.3 Litigant cannot sit over opponent’s case 52

3.2.4 Potential litigant cannot sit over would be opponent 53

3.2.5 Descending in to the arena 53

3.3 The Principle of fairness 55

3.3.1 Hasty judgment 56

3.3.2 Public hearing 57

3.3.3. Final address 60

3.3.4 Applications pending before a Court and their priority 61

3.3.5 Service of Court process 64

3.3.6 Evidence 66

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3.3.7 Prejudging the substantive suit at interlocutory stage 69

CHAPTER FOUR 71

Safeguards to Fair Hearing 71

4.0 Introduction 71

4.1 Presumption of Innocence 71

4.3 Provision of adequate time and facilities to prepare defence 81

4.4 Legal representation 85

4.5 Examination of witnesses called by the prosecution 90

4.6 Right to an Interpreter 96

CHAPTER FIVE 104

5.1 Conclusion 104

5.2 Summary 105

5.1.2 Summary of findings 105

5.3 Recommendations 108

5.2.lAmmendment of the Constitution of the Federal Republic of Nigeria 1999 108

5.2.2Amendrnent of the Legal Aid Act Cap L9 Laws of the Federation of Nigeria 108

5.2.3 Mandatorypro bono service 108

5.2.4 Establishment of Monitoring and Evaluation Unit 108

5.2.SMandatory posting of Youth Corps Lawyers to Legal Aid Council 109

5.2.6Expansion of sources of funding Legal aid 109

5.3.7 Increasing the amount of monthly allocation 109

BIBLIOGRAPHY 110

APPENDIX I 113

APPENDIXII 114