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COUNSEL MUST SHOW HOW FAIR HEARING WAS BREACHED

Dictum

A complaint founded on a denial of fair hearing is an invitation to the Court hearing the Appeal to consider whether or not the Court against which the complaint is made, has been generally fair on the basis of equality to all the parties before it. Counsel has not indicated or shown in what circumstances the Appellant was denied fair hearing. It is not enough for Counsel to say that the right to fair hearing was breached in a matter; he must show such by the evidence available and the circumstances of such breach. And the evidence must be that the party was not given an opportunity to state his case which he wanted to state in his own way. As was rightly submitted by learned Counsel for the Respondent, fair hearing is not a technical doctrine, but a rule of substance.

– Sankey JCA. Abdul v. State (2021)

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DENIAL OF FAIR HEARING RENDERS PROCEEDINGS NULL & VOID

There is a plethora of authorities of this Court on the effect of a breach of the right to fair hearing. It is fundamental. It is a breach of one of the twin pillars of natural justice, “audi alteram partem,” meaning, “let the other side be heard”, the other being “nemo judex in causa sua” meaning “a person should not be a judge in his own cause.” A denial of fair hearing renders the affected proceedings and any order, ruling or judgment therein, null and void. See: Adigun Vs A.G. Oyo State (1987) 1 NWLR (Pt. 53) 678; Salu Vs Egeibon (1994) 6 NWLR (Pt. 348) 23 @ 44; Bamgboye Vs Unilorin (1999) 10 NWLR (Pt. 622) 290 @ 333; NUT, Taraba State & Ors Vs Habu & Ors (2018) LPELR – 44057 (SC) @ 13 – 14 D – A; Zenith Plastics Industries Ltd. Vs Samotech Ltd. (2018) LPELR 44056(SC) @ 13 – 14 D – F.

— K.M.O. Kekere-Ekun JSC. Umeano v. Anaekwe (SC.323/2008, Friday January 28 2022)

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NATURE OF AUDI ALTERAM PARTEM

The audi alteram partem rule stipulates that each party must be given an opportunity of stating his case and answering if he can any arguments put forward against it. See Cooper v. Wandsworth Board of Works 14 C.B. (N.S.) 180. The rule requires that a person liable to be directly affected by proposed administrative acts, decisions or proceedings be given adequate notice of what is proposed so as to give him an opportunity to make representations, and effectively prepare his own case and to answer the case he has to meet. It is therefore essential that the person involved be given prior notice of the case against him so that he can prepare to meet that case. – Nnamani, JSC. Garba & Ors. v. The University Of Maiduguri (1986) 1 NWLR (Pt.18) 550

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FAIR HEARING IS NOT A SPARE PART

Adebayo v. AG, Ogun State (2008) LPELR – 80 (SC) 23 – 24 “I have seen in recent times that parties who have bad cases embrace and make use of the constitutional provision of fair hearing to bamboozle the adverse party and the Court, with a view to moving the Court away from the live issues in the litigation. They make so much weather and sing the familiar song that the constitutional provision is violated or contravened. They do not stop there. They rake the defence in most inappropriate cases because they have nothing to canvass in their favour in the case. The fair hearing provision in the Constitution is the machinery or locomotive of justice; not a spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in a case and force the Court to apply it to his advantage. On the contrary, it is a formidable and fundamental constitutional provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case. Let litigants who have nothing useful to advocate in favour of their cases, leave the fair hearing constitutional provision alone because it is not available to them just for the asking.”

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ANYONE CHARGED OF A CRIMINAL OFFENCE MUST BE GIVEN FAIR HEARING

Assault is an offence under section 265 of the Penal Code. Stealing or theft is an offence under sections 287 and 288 of the Penal Code. Robbery is an offence under section 298 of the Penal Code. House Trespass is an offence under section 352 of the Penal Code. Arson or mischief by fire is an offence under section 337 of the Penal Code. These are all serious offences, which carry heavy punishment under the Penal Code. Any person found guilty of any of them will have his reputation and name tarnished and stigmatised for life. It is therefore clear why the right to fair hearing within a reasonable time by a court or tribunal is given to any person charged.

– Andrews Otutu Obaseki, JSC. Garba & Ors. v. The University Of Maiduguri (1986) 1 NWLR (Pt.18) 550

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FAIR HEARING INCLUDES SUFFICIENT TIME GIVEN TO PRESENT DEFENCE

Here is a case where the panel has three months within which to conduct and conclude its investigation of impeachable allegations against appellant but appellant requested for a four days adjournment on health grounds and to enable two of his witnesses attend and testify on his behalf but the panel refused the request, closed the case of appellant and prepared its report which was submitted to the Taraba House of Assembly the next day. The said House proceeded on the same day of receipt of the report to remove appellant from office. In all, the proceedings lasted a period of about six days out of the three months assigned. Why all the rush one may ask. The rush in this case has obviously resulted in a breach of the right to fair hearing of appellant which in turn nullifies the proceedings of the panel. Appellant was, in the circumstances of the case not given sufficient time or opportunity to present his defence to the charges leveled against him.

– Onnoghen, J.S.C. Danladi v. Dangiri (2014)

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NATURE OF FAIR HEARING

It is my humble view that fair hearing implies much more than hearing the Appellants testifying before the Disciplinary Investigation panel; it implies much more than other Staff or Students testifying before the Panel behind the backs of the Appellants, it implies much more than the Appellants being “given a chance to explain their own side of the story.” To constitute a fair hearing whether it be before the regular Courts or before Tribunals and Boards of Inquiry, the person accused would know what is alleged against him; he should be present when any evidence against him is tendered; and he should be given a fair opportunity to correct or contradict such evidence. How else is this done, it be not by cross-examination? If these Tribunal or Boards, or Panels know that they cannot do all these, then, they should leave these trials to the law courts.

– Oputa, J.S.C. Garba & Ors. v. The University Of Maiduguri (1986) 1 NWLR (Pt.18) 550

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