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THE FUNDAMENTALISM OF FAIR HEARING – STATUTORY AND CONSTITUTIONAL

Dictum

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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WHEN FAIR HEARING IS BREACHED, PROCEEDING BECOMES A NULLITY

So, is a complaint alleging the breach of the right to fair hearing as constitutionally guaranteed one of mere technicality? I think not. If not then is it one of substantial justice? I very much think so! The fulcrum of this issue therefore, is the vexed issue of when in law can a proceedings of a Court and the resultant decision be said to be in breach of the right to fair hearing as constitutionally guaranteed to the parties before the Courts in the determination of their civil rights and obligations? This is so because, the effect of a breach of the right to fair hearing, if made out, would almost invariably render such proceedings and resultant decision a nullity. See Ekpenetu V. Ofegobi (2012) 15 NWLR (Pt. 1323) 276; Amadi V. INEC (2013) 4 NWLR (Pt. 1345) 595; Ovunwo & Anor. V. Woko & Ors (2011) 17 NWLR (Pt. 1277) 522; Pan African Incorporation & Ors. V. Shoreline Lifeboat Ltd & Anor. (2010) All FWLR (Pt. 524)56; Action Congress of Nigeria v. Sule Lamido & ors (2012) 8 NWLR (Pt. 1303) 560 @ p. 593; Judicial Service Commission of Cross River State & Anor. V. Dr(Mr) Asari Young (2013) 11 NWLR (Pt. 1364) 1.

— B.A. Georgewill, JCA. UBA v. Ashimina (2018) – CA/L/1033/2014

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FAIR HEARING IS TRIAL ACCORDING TO ALL LEGAL RULES

The law is indeed well settled that fair hearing within the meaning of Section 36(1) of the Constitution of Federal Republic of Nigeria, 1999 (as amended), means a trial or hearing conducted according to all legal rules formulated to ensure that justice is done to the parties. It requires the observation or observance of the twin pillars of the rules of natural justice, namely audi alterem partem and nemo judex in causa sua. These rules, the obligation to hear the other side of a dispute or the right of a party in dispute to be heard, is so basic and fundamental a principle of our adjudicatory system in the determination of disputes that it cannot be compromised on any ground. See Per PETER-ODILI, JSC in EYE v. FRN (2018) LPELR-43599(SC) (P. 28-30, PARA. A).

— U.M. Abba Aji, JSC. State v. Andrew Yanga (SC.712/2018, 15 Jan 2021)

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FAIR HEARING BEING SO FUNDAMENTAL MUST BE RAISED IN GOOD FAITH

My lords, so fundamental and crucial is the right to fair hearing of the citizen before all Courts of the land that a failure by a Court to observe it in the litigation processes would invariably vitiate both the proceedings and judgment of such a Court, notwithstanding the merit or otherwise of the cases of the parties or indeed how meticulous the proceedings were conducted or even how sound the resultant judgment was on the merit, they are all a nullity. However, it must be pointed out at once that the issue of fair hearing must be raised with all seriousness and in good faith. It must never be raised in bad faith or merely intended as a red herring to raise a storm in a teacup without any factual basis. See Agbogu V. Adiche (2003) 2 NWLR (Pt. 805) 509@ p. 531. See also Agbapuonwu V. Agbapuonwu (1991) 1 NWLR (Pt. 165) 33 @p.40; Adegbesin V. The State (2014) 9 NWLR (pt. 1413) 609 @pp. 641 – 642.

— B.A. Georgewill, JCA. UBA v. Ashimina (2018) – CA/L/1033/2014

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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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LACK OF FAIR HEARING AND JURISDICTION VITIATES PROCEEDINGS

The proceedings before the Disciplinary Investigation Panel in this case are vitiated from two angles. Firstly the Panel lacked the constitutional and legal competence to undertake the inquiry and arrive at a conclusion that the Appellants were the culprits in serious criminal offences of Arson, Malicious Damage and Indecent Assault. Secondly, the incompetent inquiry which it conducted was further vitiated by its failure to accord the appellants fair hearing either under the rules of natural justice or under the provisions of Section 33 of the 1979 Constitution.

– Oputa, J.S.C. 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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