Understanding the Concept of Fair Hearing in Nigeria
A fair hearing is traceable to the principle of natural Justice. Natural justice originates from the principle of natural law theory. There is no single definition of what natural justice entails. However, one can say that natural justice means a man’s right to fair and just treatment at the hands of rulers or agents.
The concept of Natural justice is embedded in the two pillars of justice which are (audi term partem) and (nemo judex in cause sua) The former means that a decision affecting the rights of the citizens must not be made without first giving those affected a fair hearing and the later meaning that the decision-maker must not be a party to the dispute or interested in the subject matter of the decision or otherwise biased.
Iluyomade and Eka recognise the inhibitory dimension of natural justice as a negative concept it acts as a modern natural law limitation on the power of the state.[1]
The foundation of Fair hearing is located in those twin principles of natural justice usually expressed in Latin Maxim as quoted above: Nemo judex in causa sua( no man shall be a judge in his own case) and audio alteram partem Both limbs of fair hearing operate side by side and can be said to meaning the former cannot exist without the later.
The Principle of Fair Hearing under the Nigerian Law
The twin principles of natural justice, audi alteram partem and nemo judex in causa sua constitute a fine summary of much of the content of fair hearing in Nigerian law, although often amply supplemented with the liberal spirit and letter of the Nigerian jurisdiction. The two principles are common law rules applicable in Nigeria Jurisdiction. Either or both are freely resorted to by both the bar and bench in Nigeria whenever the question of whether a person has had a hearing issue arises. Whenever either of the aphorism is breached, fair hearing has been violated.[2] Where either maxim is deservedly invoked key criteria for assessing their breach or observance is the impression that would be given to an impartial even if hypothetical, observer who witnessed the proceedings.
Section 36(1) of the 1999 constitution of Nigeria states as follows:
“In the determination of his civil rights and obligations, including any question or determination or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constructed in such a manner as to secure its independence and impartiality.”
Article 7 of the African Charter on Human and People Rights establishes a similar though by no means identical, stipulation as section 36(1) of the Constitution:
“Every individual shall have the right to have his cause heard. This comprises (a) the right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations, and customs in force; (b) the right to be presumed innocent until proven guilty by a competent court or tribunal; (c) the right to defence, including the right to be defended by counsel of his choice; (d) the right to be tried within a reasonable time by an impartial court or tribunal.”
The constitutional guarantee of fair hearing and its interplay with the common law principles of natural justice earned judicial attention in the case of Udo v. Cross River State News Paper corporation[3] where Justice Edozie JCA stated as follows:
The provision in section 33 of the 1979 constitution (now section 36 of the 199 constitution) which provides for the fair hearing of a case contains two pillars or principles of natural justice. The first is that a man may not be a judge in his own cause usually expressed in the Latin maxim –Nemo Debet Ese Judex in Propria Causa. In the case of Akoh v Abuh (1988), the. Ature of interest in a case which can disqualify a person from adjudicating over a case was considered. The Supreme Court held that a pecuniary interest is the commonest and most offensive type of disqualifying interest but not the only one. It was held that a foreknowledge, a previous knowledge of the facts of the pending case is something reasonably likely to bias or influence the mind of a judicial officer, a judge or magistrate in a particular case. In the case of the University of Calabar v. Esiaga (1977) 4NWLR (pt 502) 719 at 745, it was held that a bias could arise from three situations- firstly, it could arise from blood filial or other forms of a personal relationship with one of the parties and third or a mere natural aversion or revulsion to the facts of the case could give rise to bias on the part of a judge who is incapable of suppressing his natural and instinctive tendencies.. if it may fairly be inferred by reasonable persons sitting in court from the circumstances that there is a real likelihood of bias against one of the parties on the part of the trial, it must follow irresistibly that the party right to a fair hearing had been contravened and the decision of the issue between the parties by the trial court in such circumstances cannot stand.
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The importance of fair hearing in Nigeria.
Fair hearing, just like jurisdiction is considered a matter of priority in Nigerian courts, whenever there is a complaint of breach of fair hearing or whenever the Jurisdiction of the court is challenged in any matter, the court must urgently deal with such complaint before proceeding further. Fair hearing is a fundamental cornerstone of Nigeria’s Jurisprudence and legal system[4]. Therefore it is a fundamental aspect of jurisdiction and a universal concept founded on natural law which states that no man shall be condemned or damnified without being heard, or given the opportunity to be heard in defence.[5] it is the entitlement of any party who appears before a Court of law either as Claimant or Defendant or even as an accused person, to be heard. This is a fundamental right of all parties and consequently. It implies that all the parties to an action must be given equal opportunity to present their case before the Court the way they know best either in person or with their counsel.[6] A fair hearing is so fundamental that the court cannot do away with it in a proceeding before it, it must accord parties before it the opportunity to present their case thus it was held in OLUTAYO v. FUTMINNA & ORS[7], as follows:
“….In effect to accord with the principle of natural justice, each party must have notice of the case he has to meet and be given an opportunity to state his case and answer, if he can, any arguments put against it. Coopers v. Wandsworth Board of Works 14 CBN (NS) 180; Ridge v. Baldwin (1964) AC 40; Pillar v. City Council of Singapore (1968) 1 WLR 1278; Mallock v. Aberdeen Cooperation (1971) 1 WLR 1578; (1971) 2 All ER 1278. See also the decision of the Court in Garba v. University of Maiduguri (1985) 1 NWLR (Pt. 18) 550.” The ratio decidendi in these two authorities I have referred to is that fair hearing which is in accordance with the principles of natural justice is that which guarantees any person accused, whether it be before the regular Courts or before Tribunals, Boards or Panels of Inquiry, the following:
- That he should know what is alleged against him.
- That he should be present when any evidence against him is tendered.
- That he should be given a fair opportunity to correct or contradict such evidence, including cross-examination of the witnesses presented by his accuser(s)
Fair Hearing: An Absolute Principle or a Qualified Right?
It is worthy of note that the principle of fair hearing despite its fundamentality, it is not an absolute right that can not be waived. The court has held in Eze v FRN[8] that the right to a fair hearing can be waived, where a court has given every opportunity to a party to be heard but that party decides not to utilize it, he will be deemed to have waived the right, hence, he cannot be heard to complain that his right to fair hearing was breached. This rule applies equally to a defendant refusing in a criminal trial to utilize the opportunity of a fair hearing given to him.
The reasons for the court’s decision in Eze v. FRN (supra) is based on the precedent first laid down in News-Watch Communications Ltd. v. Attah [9] and subsequently re-emphasized in the case of COP, ADAMAWA STATE v. SARATU & ANOR[10] wherein the court held thus:
“Now, it is beyond any fanciful argument that in law, in the observance of the right of fair hearing of the citizen under Section 36(1) of the Constitution of Federal Republic of Nigeria 1999 as amended, while a Court of law has the burden, duty and indeed an obligation to afford all parties before it the ample opportunity to be heard before any decision affecting their rights and obligations are reached, there is no duty on the Court to coerce or force or compel an unwilling party afforded the opportunity to be heard, when the party on his own refuses, fails or neglects to take advantage of the opportunity offered to him by the Court to be heard. Indeed, such a party, as in the instant appeal of the Appellant, who showed a clear unwillingness to call any further witness despite several adjournments at its instance to do so and was thus rightly foreclosed by the Court below, cannot now turn round or be allowed to turn round to accuse the Court below of denying him fair hearing. At common parlance, it is said that one can only take a horse to the stream but cannot force it to drink the water
The principle here is a two-edged sword for the plaintiff to be heard timeously and for the defendant to avail itself of the rights, and constitutional rights extended to it by the court to present its side of the case.[11] Thus In Owner’s Mt “Ventures” v. NNPC[12], the approach of the court was declared a nullity because the court upheld a preliminary objection that was not moved and subsequently dismissed the plaintiff’s case the appeal court saw this as a violation of the principle of fair hearing.
The denial of the right to be heard in one’s defence, including irregularities that amount to a breach of the rules of natural justice, is a key ground for invalidating the actions of an administrative tribunal or body, as established in Muhammed v. Abu Zaria[13]
However, where a party(s) to a proceeding has been granted the opportunity to be heard but waived such rights, such a party would not be allowed to invoke the provision of Section 36 of the constitution and would be deemed to have waived the right to be heard this was the ruling of the court in COP, ADAMAWA STATE v. SARATU & ANOR (supra).
Conclusion
In conclusion, a Fair hearing, under Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999, refers to a trial conducted in accordance with due process designed to ensure justice is served to all parties involved. It requires adherence to the twin pillars of natural justice: audi alteram partem (the right to be heard) and nemo judex in causa sua (the rule against bias). However, the principle of audi alteram partem is not an absolute shield that a litigant can use to avoid due legal processes or the consequences of litigation. To successfully invoke this principle, a party must demonstrate that they were deliberately bypassed or excluded from the proceedings. The concept of fair hearing under Section 36 of the 1999 Constitution extends beyond the twin pillars of natural justice. It encompasses the broader sense of what is right and fair in the circumstances of each case and what is right in the sight of a reasonable man observing the proceeding before a court or a tribunal.
References
[1] B O Iluyomade and B.U Eka, cases and materials on Administrative Law in Nigeria, Ile-Ife, University Law Press,1980, page 131.
[2] Chinua Asizu, fair hearing in Nigeria, Malthouse Press Limited, 2010, page 2
[3] (2001) 14 NWLR (pt732) 116, 150C-151D.
[4] ibd
[5] Umar V. Williams & Ors (2022) Lpelr-57443(Ca)
[6] Longterm Global Capital Ltd & Anor V. Stanbic Ibtc Bank Plc & Anor (2022) Lpelr-59027(Sc)
[7] (2007) LPELR-11846(CA)
[8] (2018) All FWLR (pt. 923) 123, Arino v Elemo (1983) ISCNLR 1, First Bank of Nigeria PLC v TSA Industries Ltd (2010) All FWLR (pt. 537) 633, Olufeagba v Addu – Raheem (2010) All FWLR (pt. 512) 1033 at 1019; Chukwuma v FRN (2011) 13 NWLR (pt. 1264) 391 at 418 – 419
[9] (2006) all FWLR (pt 318) 580 at 600-601, per Tobi JSC (Rtd) “Counsel quite a legion, found the fair hearing principle duly entrenched in the constitution as a pathway to success whenever they are in trouble on the merits of the case before the court. Some resort to it as if it is a magic wand to cure all ills of the litigation .
[10] (2014) LPELR-24198(CA)
[11] ‘Fair Hearing In Judicial Adjudication In Nigeria’ Unizik Law Journal Vol. 14, 2018
[12] (2006) all FWLR (pt 318) at 106 to 108. Odutola v. Kayode (1994( 2 NWLR (pt. 324) “Obimonure v Erinosoho (1966) 2 SCNLR 228, Okoye V CPM Bank Ltd. (2008) 15 NWLR (pt. 1110) 335
[13] (2012) LPELR-22366(CA)
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