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FAILURE TO USE FAIR HEARING OPPORTUNITIES GIVEN

Dictum

It is settled law that when a party is given the opportunity (and in this case opportunities) to be heard and such party fails to utilize it, such party cannot hide under the umbrella of the fair hearing rule. He will fail. Again, I agree with Olu Daramola (SAN) that the position of the law is that where a party has been afforded the opportunity to be heard (in this case several opportunities) and such party fails to utilize it, the party cannot approach an appellate court and claim to have been denied fair hearing.

– H.M. Ogunwumiju, JCA. ITV v. Edo Internal Revenue (2014) – CA/B/20/2013

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FAIR HEARING IS TO BE JUDGED BY THE NATURE AND CIRCUMSTANCES OF THE CASE

The question of fair hearing is not just an issue of dogma. Whether or not a party has been denied of his right to fair hearing is to be judged by the nature and circumstances surrounding a particular case; the crucial determinant is the necessity to afford the parties equal opportunity to put their case to the court before the court gives its judgment. In the instant case, there has been no complaint that the respondents were granted advantages or special favours in the presentation of their case which were denied to the appellants. 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 a complaint is made has been generally fair on the basis of equality to all the parties before it.

— A. Oguntade, JSC. Pam & Anor. V Mohammed (2008) – SC.238/2007

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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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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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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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NATURE OF FAIR HEARING

Pam v. Mohammed (2008) LPELR-2895(SC), 26-27, per Oguntade, J.S.C., held as follows – “The question of fair hearing is not just an issue of dogma. Whether or not a party has been denied of his right to fair hearing is to be Judged by the nature and circumstances surrounding a particular case; the crucial determinant is the necessity to afford the parties equal opportunity to put their case to the Court before the Court gives its judgment … It is wrong and improper to approach the meaning of fair hearing by placing reliance on any a priori assumptions as to its technical requirements. The simple approach is to look at the totality of the proceedings before the Court and then form an opinion on objective standards whether or not an equal opportunity has been afforded to parties to fully ventilate their grievances before a Court. The principle of fair hearing cannot be applied as if it were a technical rule based on prescribed prerequisites. It seems a sufficient satisfaction of the principle if parties were afforded an equal opportunity without any inhibition to put across their case.”

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FAIR HEARING NOT BREACHED WHEN A DOCUMENT IS EXPUNGED BY TRIAL JUDGE

I have seen in recent times counsel forcing into cases the principles of fair hearing even when they are so distant from the case. The principles of fair hearing will not be invoked in favour of a party where the trial Judge correctly expunges an exhibit earlier admitted. It is only when the document is wrongly or wrongfully expunged from the record that a party can be heard to canvass to an appellate court that he was denied fair hearing. – Niki Tobi, JSC. Brossette v. Ilemobola (2007)

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