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COURT WILL SET ASIDE MOTION EX PARTE MADE ON SUPPRESSED FACT – ISSUE OF FAIR HEARING DOES NOT ARISE

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Further, the Appellant alleged lack of fair hearing, to this I would say that the allegation was not substantiated. It is not enough to waive the flag of lack of fair hearing and nothing more. Fair hearing is a two way traffic which both parties ought to enjoy or entitled to. The Respondent in the present case was entitled to be heard before an order that affects him should be made and having been made ex – parte, the Respondent was entitled to have it reviewed by the trial court after other facts with exhibits in support were made known to the lower court as deposed in the affidavit in support of the application to set aside the ex – parte order before the expiration of the 120 days granted. See, MFA & ORS VS. INONGHA (2014) (supra). If the Appellant had laid down the facts of the case as they were at the time the lower court granted the application, the lower court would not have been misled to have granted the ex – parte order which the court set aside, that led to the present appeal, had the facts not been suppressed the lower court would have arrived at a different decision.

— C.N. Uwa, JCA. FRN v Ozekhome (2021) – CA/L/174/19

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ex parte, fair hearing

THE RIGHT TO BE HEARD CONNOTES AN OPPORTUNITY TO MAKE REPRESENTATION

Para. 53: “The Court recognizes the principles of Audi alteram partem (hear the other side) which requires that persons affected by an adverse position must be given an opportunity to make representation. The right to be heard by its own nature connotes an opportunity to be heard within a reasonable time by an impartial court or Tribunal. This right is not limited to a one on one verbal representation but encompasses every avenue accorded to a party to be heard in a matter. This Court 18 reiterated the principle that parties must be given an opportunity to be heard in any matter affecting their interest in the following words: “the right to fair hearing is a human right derived from the concept of fair hearing, in this regard, a fair trial is not only seen as an additional instrument for protection of the rights of defence largo sensu…..” See MOHAMMED TAYYIB BAH V. REP OF SIERRA LEONE JUD NO: ECW/CCJ/JUD/11/15, (Unreported) in its consideration relied on the case of Ugokwe v. Okeke (2008), CCJELR pg. 149@ 146.”

— Uuter Dery v Republic of Ghana (2019) – ECW/CCJ/JUD/17/19

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EX PARTE ORDERS LAST FOR 14 DAYS ONLY OR THE DATE FIXED FOR THE HEARING OF THE MOTION ON NOTICE

Now, it must be acknowledged and emphasized that the said freezing order made on 29/11/2010 was made ex-parte. Implicit in that is the law that exparte orders are by their very nature not intended or meant to last forever, but to have a short life span, usually for 7 or 14 days depending on the Rule of Court unless renewed, or pending the hearing of a motion on notice. The reason for this is not far fetched. Being orders made behind the other Party, and usually for exigencies to maintain the status quo, ex-parte orders cannot have a long life span and indeed automatically die after the 14 days by Order 26 Rule 12 (1) of the F. H. C. (Civil Procedure) Rules, 2009 , or until the motion on notice is heard. This position was succinctly stated in the case of Enekwe Vs Ima Ltd (1997) 10 NWLR (Pt. 526) 60I at 611. When the Court held:- By their nature, injunction, orders granted ex parte can only be properly interim in nature. They are made without notice to the other side to keep matters in status quo to a named date, usually not more than a few days or until the Respondent can be put on notice. It is therefore wrong to make an ex-parte without fixing a date of hearing of the motion on Notice.” An ex-parte order which invariably affects a party who is absent at the proceedings in the Court when the order is made, must necessarily have a very short life span otherwise the order would come in conflict with the right of fair hearing enshrined in Section 36 (1) of the Constitution, FRN, 1999 (as amended) . They must therefore be made to last until a given date, not more than a few days. Isyaku vs. Master (2003) 5 NWLR (Pt.814) 443, Such an ex-parte order shall not be allowed by the Court of justice and equity to, last indefinitely, Goddy Okeke & Ors Vs. Chief Michael Ozo Okoli & Ors (2000) 1 NWLR (pt. 642) 641 per Fabiyi JCA, (as he then was). Surely, the ex-parte order runs its course to the date named in the order, usually not more than 14 days in the case of the Federal High Court, or until the motion on notice is heard. Where a motion on notice is not filed or moved, at the expiry of the exparte order, the said order without the need for an application to set it aside, becomes ineffectual. Whether or not a date is named for the life span of an ex-parte order or for the hearing of the motion on notice, the life of an ex-parte order comes to an end at the expiry of 14 days provided by Order 26 Rule 12(1) of the Rules of the Federal High Court , unless life is again breathed into it to resuscitate it by an extension or a renewal of the order by the Court. Where none of these is done or the cause for its issuance is abandoned or spent, the exparte order, without a formal application for its discharge, becomes discharged and ineffectual.

— A.A. Wambai, JCA. Skye Bank v. Haruna & Ors. (CA/K/264/2011, 17th December, 2014)

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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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FAIR HEARING IS SYNONYMOUS WITH FAIR TRIAL

Fair hearing has been interpreted by the courts to be synonymous with fair trial and as implying that every reasonable and fair minded observer who watches the proceedings should be able to come to the conclusion that the court or other tribunal has been fair to all the parties concerned.

– Ejiwunmi JSC. Unibiz v. Lyonnais (2003)

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FAIR HEARING APPLIES FROM THE BEGINNING TO THE END OF THE TRIAL

From its tenor, therefore, the Court is required to conduct the trial or hearing of a case with all fairness to both parties to the suit and without bias or partiality in favour of, or against either party. That is the rationale for the prescription that a complaint of breach of fair hearing is usually against the Court or Tribunal, whether the parties before the Court were afforded equal opportunity to fully ventilate their grievance. Okanlawon v. State (2015) LPELR-24838 (SC) 52-53; E-B; Peters Pam and Anor v. Mohammed and Anor (2008) 5-6 SC (Pt. 1) 83; Deduwa v. Okorodudu (1976) NMLR 236, 246; 9-10 SC 329. Such is its primacy in our administration of justice that no decision can be regarded as valid unless the trial Judge or Court has heard both sides in the conflict. State v. Onagoruwa (1992) LPELR -3228 (SC) 33; D-E; Deduwa v. Okorodudu (supra). This test of fair hearing applies once a trial has commenced, after issue has been joined, State v. Onagoruwa (supra); nay more, it applies from the beginning to the end of the trial. Oyewole v. Akande and Anor (2009) LPELR-2879 (SC) 36-37; Deduwa v. Okorodudu (1976) 9 -10 SC 329; News Watch Comm. Ltd. v. Attah (2006) 12 NWLR (Pt. 993) 144; A. G Rivers State v. Ude (2006) 17 NWLR (Pt. 1008) 436.

— C.C. Nweze JSC. Onuwa Kalu v. The State (SC.474/2011, 13 Apr 2017)

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COUNSEL MUST SHOW HOW FAIR HEARING WAS BREACHED

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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