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THE RIGHT TO FAIR HEARING IN THE 1999

CONSTITUTION AND ADMINISTRATION


OF JUSTICE

BY

OJELI CHIWENDU VICTORIA

DELTA STATE UNIVERSITY


FACULTY OF LAW
OLEH, NIGERIA

NOVEMBER 2023
CERTIFICATION

This is to certify that this project was carried out by OJELI CHIWENDU VICTORIA in
Delta State University, Faculty of Law, Oleh, under our supervision.

_________________ ______________
BARR. URIHBO Date
(Project Supervisor)

__________________ ______________
DR. E.T. KORE-OKITI Date
( Coordinator)
DEDICATION
This project is dedicated to God almighty for giving me the knowledge and ability to carry out
this project.
TABLE OF CONTENT
Title page
Certification
Dedication
Table of contents
Abstract

CHAPTER ONE:

GENERAL INTRODUCTION
1.1. Background to Study
1.2. Statement of the Problem
1.3. Significance of the Study
1.4. Research Questions
1.5. Scope of the Study
1.6. Objectives of the Study
1.7. Research Methodology
1.8. Definition of Terms

CHAPTER TWO:

REVIEW OF RELATED LITERATURE


2.1. Principles of the Right to Fair Hearing
2.2. Application of Principle of Fair Hearing in
Administration of Justice
2.3. Fair Hearing and administration of justice

CHAPTER THREE:

PILLARS OF FAIR HEARING


3.1. Abuse of Fair Hearing in Nigeria
3.2. Criteria and Attributes of Fair Hearing
3.3. Determinants of Compliance with Criteria for
Fair Hearing
3.4. Entitlement of Right to Fair Hearing

CHAPTER FOUR:

IMPORTANCE OF FAIR HEARING


4.1. Can the Right to Fair Hearing be Limited?
4.2. What is the process involved in Ensuring
Right to Fair Hearing?

CHAPTER FIVE:

4.1. Summary of the Study


4.2. Conclusion
4.3. References
ABSTRACT

The right to fair hearingin and the administration of justice can never be underestimatedin the
existence of mankind. Fair-hearing is ordained by God and that is why God gave Adam and Eve
the opportunity of being heard before giving them
punishment, ditto to Cain.Theright to fair hearing requires that an individual shall not be
penalised by a decision affecting his rights or legitimate expectations unless he has been
given prior notice of the case against him, a fair opportunity to answer it and the
opportunity to present his own case against. It also requires that the person hearing the
matter be an unbiased person and should not have a likelihood of bias.It is founded on
the twin pillars ofjustice expressed in Latin maxim Audi alteram partem and Nemo judex
in causa sua.This article examines the principles of fair hearing andits constituent
elements in our adversarial jurisprudence. It achieves this through doctrinal method of
research using primary sources;Constitution,statutes,conventionsand case laws and secondary
sources materials; books,journal, articles and online materials as the
methodology of this research.The paperfinds that in every adjudicatory proceedings, all
parties must be placed on an equal platform and given an opportunity to testify before a
balanced and an impartial judge acceptable to all as fair and just.The paper recommends
that Judges and those sitting over disputes must ensure fair hearing principles is observed
and eschew bias or likelihood of bias or sentiments which will put a stumbling block to
the adjudicatory wheel of fair trial.
CHAPTER ONE
1.0. GENERAL INTRODUCTION

1.1. Background to the Study

According to Cambridge Dictionary, Fair Hearing “is an opportunity to explain something or


give your opinion, without other people trying to influence the situation.
It's also a consideration of statement or arguments from both sides of an issue.

The case of Supreme Court in Kotoye V Central Bank of Nigeria and 7 ors held that;

“Fair Hearing anticipated by the constitution


implies that every reasonable and Fair min-
ded observer who watches the proceedings
should be able to come to the conclusion that
the court or other tribunal has been fair to all
parties concerned.
Fair Hearing means the administrative decision-
making process that requires aggrieved individual
to be given the opportunity to confront the evidence against them and have their evidence
considered by an impartial fact finder in a meaningful time and manner.
Specifically, Section 36 of the Constitution provides for the right to fair hearing in order to
guarantee the civil rights of the citizens within a reasonable time by an independent and imperial
court or other tribunal established by law.
The Right to Fair Hearing being a fundamental constitutional rights guaranteed by the
constitution, the breach of it in any trial or investigation or inquiry and action on them is also a
nullity.

Section 36 (1) of the Constitution (as amended)


provides that: In the determination of his civil rights and obligations, including any question or
determination by 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 constituted
in such manner as to secure it's independence and impartiality.
The Right to Fair Hearing is a fundamental principle of injustice in Nigeria. Accordingly,a court
decision made in the breach of right to a fair hearing might be set aside by an appellate court.
Section 3(2)- Without prejudice to the foregoing provisions of this section,a law shall not be
invalidated by reasons only that it confers on any government or authority power to determine
questions arising in the administration of a law that affects or may affect the civil right and
obligations of any person if such law-
(a) provides for an opportunity for the person whose right and obligations may be affected to
make representation to the administering authority before that authority makes the decision
affecting that person; and
(b) contains no provision making the determination of the administering authority final and
conclusive.
The Right to Fair Hearing requires that all parties be allowed to hear any allegations against
them in a case and be allowed to respond to such 1allegations. In some cases delay might also
constituted a breach of the right to fair hearing in Nigeria requires that parties be heard within a
reasonable time.

In the case of Obomhense v Erhahon (1993)7 NWLR (pt 303)22, the court of Appeal had
declined to rule on sn oral application for adjournment and proceeded to dismiss the appeal.
The Supreme Court held that such conduct of the court of Appeal ‘amounted to a breach of fair
hearing of the Appellant and set aside judgement.

In the case of Daewoo (Nig)Ltd v Alamina & Anor (2022) LPELR- 56588(SC), the Supreme
Court held that the right to a fair hearing has always been recognized and protected to
formidably protect all parties to a case.
The Right to Fair Hearing in civil proceedings is one of the guarantees in relation to legal
proceedings. Fair hearing right include:
● That all persons are equal before court and tribunals

● The right to fair hearing before a competent, independent and impartial court or tribunal
established by law.

The right to fair hearing apply to both criminal and civil proceedings, and in cases before both
court and tribunal.It also applies to military disciplinary hearings. The right is concerned with
procedural fairness rather than with the substantive decision of the court of tribunal.

According to the Black’s Law Dictionary (5th Edition), fair hearing is defined as; “One in
which authority is fairly exercised, that is consistently with the fundamental principles of justice
embraced within the conception of due process of law. Contemplated in a fair hearing is the
right to present evidence, to cross examine, and to have findings supported by evidence”.
Also, Article 2509 of Brett & Mclean on the criminal Procedure of the six Southern States of
Nigeria (2nd Edition) says; “Fair hearing must involve fair trial and a fair trial of a case consists
of the whole hearing. The test of fair hearing is the impression of a reasonable man present at
the trial, whether, from his observation justice has been done in the case”.
Contemplated in fair hearing is the right to present evidence, to cross examine and to have
Findings supported by evidence. Thus, it implies that both sides be given an opportunity to
present their respective cases, and that each side is entitled to know that a case is being made
against it and be given an opportunity to reply thereto. See Olugbenga Daniel v. Federal
Republic of Nigeria. The Right to be heard is such an important radical and protective right that
the Courts strain every nerve to protect it and even imply it where a statutory form of protection
1
will be less effective if it did not carry with it the right to be heard. See UBA v. Oranuba. The
Fair hearing provision in the Constitution is the only 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 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. Litigants who have nothing useful to advocate in favour of their cases should leave the
fair hearing Constitutional Provision alone because it is not available to them just for the asking.
Fair hearing implies much more than hearing the appellant testifying before the Disciplinary
Investigation Panel; it implies much more than summoning the Appellants before the Panel; it
implies 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 should 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 if it be not by
cross-examination? Section 36 of the 1999 Constitution of the Federal Republic of Nigeria
has the relevant provisions for Fair Hearing and states as follows:
Section 35 (5) - Every person who is charged with a criminal offence shall be presumed
innocent until proved guilty.
Section 36 (6) - Every person who is charged with a criminal offence shall be entitled to -
(a) Be informed promptly in the language that he understands, and in detail the nature of
the offence;
(b) Be given adequate time and facilities for the preparation of his/her defense;
(c) Defend himself in person or by Legal Practitioners of his own choice;
(d) Examine in person by his Legal Practitione,
the witnesses called by the Prosecution before any Court or Tribunal and obtain
attendance and carry out the examination of witnesses to testify on his behalf before the
Court or Tribunal on the same conditions as those applying to the Witnesses called by
the Prosecution;
(e) Have without payment, the assistance of an Interpreter, if he cannot understand the
language used at the trial of the offence.

Fair hearing is the very foundation of justice and a prerequisite for a just determination of
disputes between Parties. The establishment of the likelihood of bias on the part of a Judge or
person exercising judicial function in a Proceeding vitiates the whole proceedings for violation of
the legal maxim nemo judex in causa sua which means that no one should be a Judge in his
own cause. Partiality as a result of bias destroys the very root of a fair adjudication and the
administration of justice in any legal system anywhere in the World. It was equally held in the
case of Omoniyi v. Alabi6 that the consequence of a successful argument that the appellant's
right to fair hearing was breached is that the decision complained of would be declared a nullity
and set aside. Fair hearing is not a technical doctrine, but a rule of substantial justice. To affect a
judgment and have it set aside for breach of fair hearing, it has to be shown that:
1. Fair hearing was infringed; or
2. Fair hearing was clearly threatened with infringement; or
3. There was a likelihood of infringement of fair hearing. It is not sufficient that fair hearing was
merely suspected to have been infringed.
1.2. Statement of the Problem

What prompted this study is because of the rate of breach of fair hearing in Nigeria.

In the case of Otapo v sunmonu, the court stated that any breach of this
Principle,(principle of natural justice and principle of fair hearing), results in the nullity of the
proceedings.
Where an accused person in the case of a criminal proceedings or a party to a civil
proceedings is denied one of the essential of a fair hearing as provided in the constitution, there
has been a breach of fair hearing. A breach of the provision of section 36 of the constitution of
the Federal Republic of Nigeria 1999 will be reviewed by means of the prerogative orders of
certiorari, prohibition and mandamus; the prerogative writ of habeas corpus or may be enforced
under the Fundamental Rights ( Enforcement procedure) Rules 2009 made pursuant ‘to the
powers conferred on the Chief Justice of Nigeria.

In that case,Obaseki JSC went on to say that:


“the absence of fair hearing or rather
the denial of fair hearing to the
appellant… is fatal to the judgment
of the Court of Appeal”

Also this study attempt to find factors affecting fair hearing, etc.

In Idris Rabiu v state, the Court of Appeal held that the right to fair hearing is an extreme
fundamental right in the constitution and breach thereof has it's implication on the proceedings.

1.3. Significance of the Study

The findings of this study will be of immense contribution to theory, practice and research
in the following ways: the study will expose the citizens to their right to fair hearing in Nigeria; it
will also highlight the abuse, and importance of fair hearing to our society.

1.4. Research Questions

The following research questions have been raised to guide this study:

1.Can the right to fair hearing be limited?

2. What is the process involved in ensuring right to fair hearing?


1.5. Scope of the Study

Right to Fair Hearing provides for a right for parties to be heard and to respond to
allegations made against them, and requires court be unbiased and independent. What
constitutes a ‘fair’ hearing will depend on the facts of the case, and will require a number of
public interest factors to be weighed.

1.6. Objectives of the Study

The UDHR in Article 10 provides that “Everyone is entitled in full equality to a fair and
public hearing by an independent and impartial tribunal,in the determination of his rights and
obligations and of any criminal charge against him”.
a.To understand the rule of fair hearing and the significance.
b.To know the effect of Non-compliance with the rule of fair hearing.

1.7. Research Methodology

Heavy reliance has been placed on the library work in accomplishing this project. The
study entailed the use of both primary and secondary sources of information. Both international
and municipal law have been consulted as well as various law report and case law in the study
of this work.

1.8. Definition of Terms

The following terms were defined used in the study

Fair: Impartiality and honesty: free from self- interest, prejudice, or favoritism.

Hearing: A proceedings (usually by a court) where evidence is taken for the purpose of
determining an issue of fact.

Right: A moral or legal entitlement to have or do something.


CHAPTER TWO
2.0. REVIEW OF RELATED LITERATURE

2.1. Principle of the Right to Fair Hearing

The principle of fair hearing is so fundamental in the adjudication and administration of


Justice that its breach is an act of injustice. If it is breached, the whole proceeding will be null.
His lordship, Peter Odili (JSC) in EZE V FRN (Supra) says “The principle of fair hearing in the
process of adjudication and administration of Justice is fundamental and so entrenched in the
Constitution of the Federal Republic of Nigeria and the common law. The concept is all the more
preeminent that once it is established that there is a breach thereof the entire proceedings, no
matter how well conducted, comes to naught.”

The principle of fair hearing as it is entrenched in the 1999 CFRN entails the following:

(1) A speedy hearing within a reasonable time.

(2) A court or tribunal established by law.

(3) An independent court or tribunal.

(4) An impartial court or tribunal.

(5) The fair hearing of the parties to the suit.

(6) The duty of the judge not to be a judge in his own case unless in the exceptions provided by
law.

(7) In criminal matters, a presumption of innocence until the person is proved guilty beyond
reasonable doubt.

(8) Prompt information in the language he understands, the nature and details of his offence.

(9) Provision of adequate time and facilities for the preparation of his defence.

(10) Opportunity to defend himself in person or by a legal practitioner of his choice.

The principle of fair hearing is so fundamental to the concept of Justice that it cannot be ousted
or displace by any legislation. In the word of KARIBI- WHYTE (JSC, as he then was) in LPDC
V FAWEHINMI (1985) 2 NWLR pt. 7, p. 300 at 370 SC., his lordship said:

“In the circumstances of this country, fair hearing is an entrenched provision of the Constitution
which cannot be displaced by legislation however unambiguously worded.”
However, it is pertinent to note that an individual may decide to waive this right by himself. The
Supreme Court per MUHAMMAD (JSC) in EZE V FRN (Supra) says:

“Right to fair hearing can be waived. Thus, where a court has given every opportunity to a party
to be heard that party decides not to utilize it, he will be deemed to have waived his right, hence
he cannot be heard to complain that his right to fair hearing was breached…”

The right to fair hearing is a fundamental right which must be enjoyed by all citizens in any
circumstances. This right is so sacred that it cannot be ousted by any legislation, unless an
individual decide to waive it.

The principles or doctrine of fair hearing in its statutory and constitutional sense is derived from
the principles of Natural Justice and its twin pillars, namely audi alterem partem, which means
“hear the other side”, and nemo judex in causa sua, which means “no one should be a judge in
his own cause”. The principle is general application not only in Nigeria, but also in other
Common Law countries to the extent that a presumption has now evolved that whenever any
power is conferred by any statute on any authority or body to make a determination, such a
determining power shall be exercised judicially and in accordance with the rules of natural
justice. Therefore, a breach or otherwise of fair hearing is regarded or treated as very
fundamental and a sine qua non to and proceedings, hearing or a trial which is subject to an
adjudicatory process.

2.2. Application of Principle of fair hearing in


Administration of justice

The increase in the regulatory powers of public authorities provides the opportunity for
the application of the principles of fair hearing in disciplinary roles.Delegation powers has
become a convenient tool to meet up with the responsibilities of the modern complex nature of
governance warranting delegated legislation and empowering administrative bodies take up
some of the traditional judicial functions of the courts and sit as Tribunals, Panels, or
Commissions of Inquiry and etc. These administrative bodies adjudicate on any matter brought
before them; make determinations on rights and obligations of individuals and parties before
them and perform such other functions as may be assigned to them.

As these administrative tribunals assume quasi-judicial responsibilities to determine


issues of rights and obligations of individuals brought before them; just like the regular
courts, these administrative tribunals and administrative bodies are bound by the principles
of natural justice (fair hearing) in the determination of the rights and obligations of individuals
appearing before them.This study examines the extent of the applicability of the principles of fair
hearing in such administrative adjudication in Nigeria.
For an effective workability of the principle of Fair Hearing the court in its administration of
justice must ensure ;
1).That an accused person understand whatever that is said at the trial including the evidence
adduced, this is to the effect that “ An accused person is entitled to have, without payment, the
assistance of an interpreter if he cannot understand the language used at the trial of the
offence”Thus, there should be adequate interpretation to the accused person of anything said in
a language which he does not understand, and equally that there should be adequate
interpretation to the court of anything said by the accused in a language which the court does
not understand.
(2).That the right of the accused person to defend himself in person or by Legal practitioner of
his own choice is not violated. “A person charged with a criminal offence is entitled to defend
himself in person or by legal practitioners of his own choice” An accused person who appears
in court without a counsel is entitled to be informed by a court of his right to defend himself
personally or through a counsel of his choice. Where an accused person in a trial for a capital
offence appears without a counsel, a High Court may assign a counsel to such accused person.

2.3. Fair Hearing and Administration of


Justice

It could be safely argued that fair hearing is the bedrock of any judicial or quasi judicial process.
Without it, justice cannot be said to have been done. It is instinct to the process of justice
delivery and it is the only means through which justice in its just form can be administered. It is
not just a common law principle but it has been enshrined in the 1999 CFRN by virtue of Section
36 thereof. The Court of Appeal in Adebayo & Ors. v Governing, Board, Rufus Giwa
Polytechnic, Ondo State & Anor. stated that “fair hearing is a judicial or administrative hearing
conducted in accordance with due process.” In Atejioye v Ayeni the same court also defined fair
hearing thus “fair hearing means a trail conducted according to all the legal rules formulated to
ensure that justice is done to the parties in the case”. The constitutional principle of fair hearing
is for both parties in the litigation and not a one-way traffic but rather a two-way traffic that is
accommodative of both parties before the court. Courts are admonished not to invoke the
principle in favour of a party and to the detriment of the other. In Nigerian-Arab Bank Ltd. v
Comex Ltd. The Court of Appeal warned that “it is a highly esteemed principle of law and
enshrined in the Nigerian Constitution that in the administration of justice, parties to a legal duel
must each be accorded every opportunity of canvassing its case to the best of its ability within
the rules regulating the procedure to achieve the end of justice.” Fair hearing is the lubricant that
lubricates the wheels of administration of justice thereby preventing friction to set in which can
ultimately lead to wear and tear of justice. Thus, such a situation is undesirable.Fair hearing or
trail has been adjudged to have certain attributes. Fairness of a trial is demonstrated by the
attitudinal behaviour of the presiding judge in the course of trial towards a party. It is
characterized by lack of prejudice or bias and open ended in such a way that any common man
present in court will easily attest to the fairness of the procedures. When, therefore, the
represented parties are not heard or given an opportunity of being heard, the hearing by the
court cannot come within the category of fair hearing. A hearing can only be fair when all parties
to the dispute are given a hearing or an opportunity of a hearing. If one of the parties is refused
a hearing or not given an opportunity to be heard, the hearing cannot qualify as fair hearing.
When, therefore, the represented parties are not heard or given an opportunity of being heard,
the hearing by the court cannot come within the category of fair hearing. Without fair hearing by
the aring by the court cannot come within the category of fair hearing. Without fair hearing, the
principles of natural justice are abandoned and without the principles of natural justice the
concept of the rule of law cannot be established and grow in the society.60Constitutionally, all
the rights guaranteed under Chapter 4 of the 1999 CFRN, are generally regarded as not being
absolute, sacrosanct or untrammeled. In fact, section 45 of the Constitution makes provisions
for derogation from some of the rights listed there such as the ones contained in sections 37,
38, 39, 40 and 41. However, it is worthy to note that section 36 which makes provision for right
to fair hearing, for all times and purpose, is absolute and sacrosanct. No circumstance would
warrant derogation from it. The reason for its absoluteness is not far-fetched. In fact, the Court
of Appeal in Nigerian-Arab Bank Ltd. v Comex Ltd. in describing the nature of the right to fair
hearing held that “the right to fair hearing is much more than a personal right of the subject.
Public policy demands that every subject is entitled to a fair trial and every trail in a court must
conform with settled principles of justice.” The opportunity to be heard is the hallmark of the
fundamental right to fair hearing which hosts the avowed twin principles of natural justice
namely; audi alterem partem (which means hear the other side) and nemo judex in causa sua
(which means no one should be a judge in his own cause).
CHAPTER THREE
3.0. PILLARS OF FAIR HEARING
Fair Hearing in the context of section 33(1) of the constitution encompasses the
plenitude of natural justice in the narrow technical sense of the two pillars of justice - audi
alteram partem ( hear the other side) and nemo judex in causa sua ( a man shall not be a judge
in his own case)...

AUDI ALTERAM PARTEM


This maxim connote that “ no one shall be condemned unheard” that is every party to a
suit must be allowed to give evidence for or against the fact/allegations against him. This rule
requires that a person must be allowed an adequate opportunity to present their cases where
certain interest and rights may be adversely affected by a decision-maker.
To ensure that these rights are respected, the deciding authority must give both the opportunity
to prepare and present evidence and to respond to argument presented by the opposite side.
Per Justice Oputa in explaining this maxim, in relation to the principle of fair hearing said:
“The Almighty God gave us two ears so that we may hear both sides”. Furthermore after
examining the essential of the Right / principle of fair hearing and how old a practice it
is. Justice Fortuscue relates an incident in R v. University of Cambridge to the case in the
Garden of Eden in the Bible stating that ” Before God condemned Adam and Eve, He gave
them a fair hearing to rebut the allegation of divine obedience”.We must however note that a
court of law can convict an accused person who chooses to say nothing in his defence.
See S.287 C.P.A. This is to the effect that where an accused fail, ignore or neglects to state his
case, he cannot claim that his right to fair hearing has been violated.

NEMO JUDEX IN CAUSA SUA


This maxim means “ no one should be a judge in his own cause” this is to the effect that a
judge must not have any personal interest in the case.
See the case of Gani Fawehinmi v Legal Practitioners Disciplinary Committee. The rule
states that no one ought to be judge in his or her own case. This is the requirements that the
deciding authority must be unbiased in his administration of justice.
Additionally, investigators and decision-makers must act without bias in all procedures
connected with the making of a decision. A decision-maker must be impartial and must make a
decision based on a balanced and considered assessment of the information and evidence
before him or her without favoring one party over another.Even where no actual bias exists,
investigators and decision-makers should be careful to avoid the appearance of bias.A man is
said to be judge in his own case when he is likely to be biased in favor or against either for
reason of interest or favour.

3.1. Abuse of Fair Hearing in Nigeria

The Nigerian Constitution applies equally to everyone, regardless of age, color, race,
religion, profession or any other factor. In Nigeria, there is the awareness of the increased
attention given to individual’s rights especially those described as fundamental rights of the
citizen. This state of affairs has led to more litigation in Nigeria. Given the climate of the times, it
appears not only prudent but also necessary for citizens to understand their own rights and
limitation,as well as the legal implications of what they do, not to infringe on the citizens right in
the society.
It has been stated from time immemorial that courts are bound to give all the parties before
them the ample opportunity of hearing before coming to a decision. Fair hearing includes
hearing all the evidence the parties intend to place before the court (especially through their
witnesses) with a view to establish.

3.2. Criteria and Attributes of Fair Hearing

The rule of fair hearing is not a technical doctrine. It is one of substance. The question is
not whether injustice had been done because of lack of hearing. It is whether a party, entitled to
be heard before deciding, had in fact been given the opportunity of hearing. Once an appellant
court comes to the conclusion that a party was entitled to be heard before a decision was
reached but was not given the opportunity of hearing, the order or judgment thus entered must
be set aside.

According to the Supreme Court of Nigeria in Olugbenga Daniel v. Federal Republic of


Nigeria, there are certain basic criteria and attributes to gauge whether a trial or hearing is fair
or not. These are:
a.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;

b.The court or Tribunal shall give equal treatment, opportunity and consideration to all
concerned;

c.The proceedings shall be held in Public and all concerned shall have access to and be
informed of such Public Hearings; and

d. Having regard to all the circumstances in every material decision in the case, justice must not
only be done, but manifestly and undoubtedly be seen to have been done.

3.3. Determinants of Compliance with Criteria


for Fair Hearing

To determine whether the basic criteria and attributes of a fair trial are satisfied, the Court must
ensure that the person to be affected by the Proceedings is given the following rights:

a.to be present throughout the Proceedings and hear the evidence against him
to cross examine or otherwise confront or contradict all the witnesses that testify against him;

b. to have all documents tendered in evidence at the trial read before him;
to have disclosed to him the nature of all relevant materials of evidence, including documentary
and real evidence prejudicial to him;
c. to know the case he has to meet at the hearing and to have adequate opportunity to prepare
for his defense; and

d. to give evidence by himself, call witnesses, if he chooses to, and make oral submissions,
whether personally or through a Counsel of his choice. Once a Trial is conducted in accordance
with the above requirements, it will be said to be fair.

3.4. Entitlement of Right to Fair Hearing

Fair hearing provision presupposes equality of arms and implies that parties are to be
treated in a manner that ensures procedural equality throughout the trial or hearing. The
detractors of ADR may argue that mediation does not allow for fair hearing for the reason that
parties are not always equal in power relation. Disputes, it can be argued, particularly those
involving husband and wife, employer and employee, master and servant, the rich and the poor,
the well placed and the common man do not present a balanced power relation scenario.
Hence, the argument may continue, the resolution of such disputes should require the level
playing ground which litigation and representation by lawyers in court room provide. The
discontents of mediation may thus conclude that since court ‘ordered’ mediation does not
perfectly match with the detail ingredients of fair hearing, it should be no more than voluntary.
Hence, it is pointless for a law to provide for a court ‘ordered’ mediation constraining parties to
participate in the arrangement.

This point has been similarly made by Delgado et al about why litigation in the court-room
should be preferred to mediation. The authors note that the court system has incorporated
societal norms of fairness and even-handedness into institutional expectations and rules of
procedure. These norms create a public conscience and a standard for expected behaviour that
check overt signs of prejudice and impartiality. Unlike litigation in court room, mandatory
mediation may therefore not offer protection for the weaker party because the mediator may not
comply with strict rules of procedure or law, but merely acts as a facilitator. What is more, the
mediation process may deemphasize the concerns and rules constructed by courts to protect
weaker parties and assume that the people or entities that interact outside formal legal
institutions are roughly equal in political power, wealth, and social status. This is worsened, in
the authors’ view, since there is no tribunal to make sure that the individuals participating in
mediation comport themselves in accordance with society's perceptions of fairness.
The above arguments questioning mediation, and arguably by extension, the law authorising
court ordered mediation seems interesting but can be faulted on certain grounds. First, it is
certain that not even litigation in the court room can effectively meet Delgado’s vision of societal
obligations in relation to even-handedness and norms of fairness. Even the most zealous lawyer
will agree that court room litigation has its own challenges which may undermine its
even-handedness. For instance, in litigation, access to legal practitioner may depend on the
financial capability of the party. Even where court appoints a legal representative for an indigent
party, it is still a choiceless representation imposed on the party. Similarly, since the presumption
is that the judge is neutral in matters brought before him, the onus, and this is often difficult to
prove, is on the parties to show why a judge should recuse himself in a matter where he is
adjudged to have interests. Also, in the course of trial, the point on even handed-ness of parties
may become further compromised as parties may be unable to follow the technicality of
proceedings including lawyer’s submission on a number of issues.
Second, contrary to Delgado’s view on this issue, court ‘ordered ‘mediation, at least under
the 2012 Rules, reflects a higher possibility of fairness and even-handedness which is
consistent with constitutional provision on fair hearing. This is considering that unlike the
scenarios under court litigation proceedings, the court ‘ordered’ mediation allows parties with or
without legal representation, to represent themselves in a process conducted under a neutral of
their choice. Also, unlike litigation in the court room where approach is one of strong arguments,
and who is right or wrong or liable, under court ordered mediation, parties are able to participate
in a dispute resolution process which relies on consultation and persuasion and essentially
focuses on the need to balance harmony with justice. Arguably, nothing meets with societal
understanding of justice any better than this.
Third, in addition to the fact that even fair hearing issues may arise in court litigation,
portraying court-room trials as the exclusive epitome of fair hearing principle is unreal and
unproductive, especially when the remedies which sometime emerge from the court system is
not voluntarily arrived by the parties and therefore not always suited for a range of diverse
disputes brought before it. Remedies awarded by court are generally outcomes of contestation
and skewed towards the perceived or adjudged winner of dispute. Court ‘ordered’ mediation,
however, enables parties to create consensus and work out voluntary settlement which focuses
on flexible remedies to their shared concerns. The dynamics entailed in such a process, allows
for parties to exhaust their viewpoints, gain power over their cause and own remedies resulting
from the mediation process. This effective dynamics, arguably, surpasses the threshold of fair
hearing in the constitution.
CHAPTER FOUR
4.0. IMPORTANCE OF FAIR HEARING

From time immemorial the principle of fair hearing has been considered as part of the
rules of natural justice. The doctrine of natural justices as it concerns procedural fairness to
ensure a fair decision is reached. Furthermore, maintaining procedural fairness, protecting the
rights of individuals (accused) and enhances public confidence in the process of administration
of justice.In our constitution, this right is enshrined in Section36 (1) & (4) CFRN.This is to the
effect that after an accused must have been informed of the offence against him, such accused
is thereto allowed to give evidence against the fact in issue. The Supreme Court having
understood the importance of fair hearing to criminal trial in the case of Effiom v. The state.
Prescribed the essential element of fair hearing as follows:

1).Easy access to court


2).Right to be heard
3).Impartiality of adjudicating process
4).Principles of Nemo judex in causa sua
5). Whether there is inordinate delay in delivery judgment.

4.1. Research Questions One: Can the Right to Fair Hearing be Limited?

In Eze v FRN24, the apex court held that right to fair hearing can be waived. Thus, where a
court has given every opportunity to a party to be heard but that party decides not to utilize it, he
cannot be heard to complain that his right to fair hearing was breached.

The right to fair hearing stipulates that a citizen is entitled to be notified of any charge levied
against him. But where the right to fair hearing is granted and the person refuses to speak the
law will not force the person and as such, the opportunity may not be granted by the court.
If one of the parties is not given an opportunity to be heard, the hearing cannot qualify as a fair
hearing. The concept of fair hearing postulates a hearing in which the authority is fairly
exercised, that is consistent with the fundamental principle of justice embraced within the
concept of the Due Process of Law.

4.2. Research Question Two: What is the process Involved in Ensuring Right to Fair Hearing

This rule demands that each party involved in a case must be given an opportunity to present
and state his case. Hence, all the parties must be given notice of hearing so as to have the
opportunity to present their cases before a decision is made.
CHAPTER FIVE
5.0. Summary, Conclusion, and References

5.1. Summary of the study

This study examined the Right to Fair Hearing and Administration of Justice.
The study was written to ascertain the Right to Fair Hearing, Abuse of fair hearing, Criteria and
Attributes of fair hearing, etc.
The descriptive survey research was used for the study.
Research Questions was used in the study and was analyzed.

5.2. Conclusion

From the above, it is clear that fair hearing is an ancient principle upon which judicial and
quasi-judicial process is anchored upon. The dictates of fair hearing demands that a person is
not only heard but the hearing must be fair. It is a right that is absolute, sacrosanct and
untrammeled. As a result, in a proceeding, a party thereto is entitled to call for and make use of
all relevant evidence to establish his/her case. This is anchored on the right of unhindered
access to evidence.
Fair hearing is an entrenched provision of the Constitution which cannot be displaced by
legislation, however unambiguously worded. Therefore, the right of a person to fair hearing is so
fundamental to the concept of justice that the right can neither be waived nor taken away,
whether expressly or by implication. A denial of fair hearing by Law or by a partial hearing is an
act of injustice. This right to fair hearing concept gets abused when there is an allegation of
bias on the part of a Judge or any person heading a Tribunal or an Administrative Panel to
adjudicate over a certain Matter. This even extends to any person playing a leadership role in
any other capacity.

The principle of fair hearing as enshrined in the Constitution is often illustrated by the “twin
pillars of justice” expressed in the Latin maxim; Nemo judex in causa sua and audi alteram
partem. In other to guarantee personal liberty and principle of fair hearing, a person who is
standing trial is presumed innocent until his guilt is proved by the prosecution. A breach of this
doctrine of fair hearing in a judicial inquiry renders the action unconstitutional, illegal and liable
to be set aside. A fair trial may also require evidence to be excluded if it was obtained in a
manner that violates other international human rights standards. The only exception to this is
evidence of abuse in a case against someone who is accused of torture or other abuse. A
person charged with a criminal offence is “entitled ....to be given adequate time and facilities for
the preparation of his defence”. It is after the person would have been told of the charge against
him that the issue of time and facilities for preparing his defence would arise. Consequently, this
aspect of fair hearing have been argued in Nigerian court on several occasions.
5.3. References

The Constitution of the Federal Republic of Nigeria (1999)

O.M Kuforiji ESQ (LLB, CPMP) www.elegalaids.com

INTERNATIONAL REVIEW OF LAW AND JURISPRUDENCE By David Tarh-Akong Eyongidi,


Buduka Isaac Oyagiri

AJLHR(2) 2019

www.academia.com

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