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THE FUNDAMENTALISM OF FAIR HEARING – STATUTORY AND CONSTITUTIONAL

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Now it has been held that the principle of or doctrine of fair hearing in its statutory and constitutional form is derived from the principle of natural justice under the twin pillars of audi alteram partem and nemo judex in causa sua. The principle of fair hearing is fundamental to the administration of justice as enshrined under Section 36 of the 1999 Constitution (as amended). It hinges on the conduct of a hearing which is fair to both parties to the suit and without bias or partiality in favour or against either of them who will thereby be prejudiced. See Ude v. State (2012) LPELR 14193 (CA); Uguru v. The State (2002) 9 NWLR (Pt. 771) 90; Newswatch Communications (CA) v. Attah (2006) 12 NWLR (Pt. 993) 144; Ovunwo v. Woko (2011) 6 SCNJ (Pt. 1) 124; Nosepetco Oil and Gas Ltd v. Olorunimbe (2012) 10 NWLR (Pt. 1307) 115. In Egbuchu v. Continental Merchant Bank Plc (2016) NWLR (Pt. 1513) 192 at 207, the apex Court held inter alia that: “The Constitutional provision for fair hearing mainly stems or germinates from two common law principles of natural justice. They are audi alteram partem and nemo judex in causa sua. The meaning of the Latinism is, hear the other party; hear both sides. No man should be condemned unheard. What the rule or doctrine of fair hearing means is that the parties must be given equal opportunity to present their case to the Court and no party should be given more opportunity or advantage in the presentation of his case.” See also Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423. The issue of fair hearing is so fundamental and germane that any proceeding conducted without fair hearing amounts to a nullity and is bound to be set aside. See Tsokwa Motors (Nig) Ltd v. UBA Plc (2008) 2 NWLR (Pt. 1071) 347; Egbuchu v. Continental Merchant Bank Plc supra; Adigun v. Oyo State (1987) 1 NWLR (Pt. 53) 678.

— S.C. Oseji, JCA. Access Bank v Edo State BIR (2018) – CA/B/333/2015

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BASIC CRITERIA & ATTRIBUTES OF FAIR HEARING

There are certain basic criteria and attributes of fair hearing, some of which are relevant in this case. These include: (i) that the court shall hear both sides not only in the case but also in all material issues in the case before reaching a decision which may be prejudicial to any party in the case. See Sheldon v. Bromfield Justices (1964) 2 QB. 573, at p. 578. (ii) that the court or tribunal shall give equal treatment, opportunity and consideration to all concerned. See on this: Adigun v. A.-G., Oyo State and Ors. (1987) 1 NWLR (Pt. 53) 678. (iii) that the proceedings shall be held in public and all concerned shall have access to and be informed of such a place of public hearing and (iv) that having regard to all the circumstances, in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done: R. v. Sussex Justices, ex-parte McCarthy (1924) 1KB 256, at p. 259; Deduwa and Ors. v. Okorodudu (1976) 10 SC 329.

– 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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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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NATURAL JUSTICE ENTAILS BEING ALLOWED TO REBUT ALLEGATIONS ALLEGED

However, the requirement that a person should be offered opportunity to defend himself after being charged need not necessarily be in the form of a trial involving oral testimonies i.e. examination-in-chief and cross examination. What is required is to afford him the opportunity to rebut, correct or contradict what is alleged against him. The principle of natural justice is satisfied if the person accused is allowed to correct or rebut what is prejudicial to him in writing.

– Muhammad JCA. Osumah v. EBS (2004)

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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 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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