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COURT WILL SET ASIDE MOTION EX PARTE MADE ON SUPPRESSED FACT – ISSUE OF FAIR HEARING DOES NOT ARISE

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Further, the Appellant alleged lack of fair hearing, to this I would say that the allegation was not substantiated. It is not enough to waive the flag of lack of fair hearing and nothing more. Fair hearing is a two way traffic which both parties ought to enjoy or entitled to. The Respondent in the present case was entitled to be heard before an order that affects him should be made and having been made ex – parte, the Respondent was entitled to have it reviewed by the trial court after other facts with exhibits in support were made known to the lower court as deposed in the affidavit in support of the application to set aside the ex – parte order before the expiration of the 120 days granted. See, MFA & ORS VS. INONGHA (2014) (supra). If the Appellant had laid down the facts of the case as they were at the time the lower court granted the application, the lower court would not have been misled to have granted the ex – parte order which the court set aside, that led to the present appeal, had the facts not been suppressed the lower court would have arrived at a different decision.

— C.N. Uwa, JCA. FRN v Ozekhome (2021) – CA/L/174/19

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ex parte, fair hearing

ONE CANNOT BE A WITNESS AND A JUDGE AT THE SAME TIME

This submission is incontestible. The Deputy Vice-Chancellor cannot be a witness and a judge all at the same time. The likelihood of bias is a necessary inference from the assumption of the two positions. – Andrews Otutu Obaseki, JSC. Garba & Ors. v. The University Of Maiduguri (1986) 1 NWLR (Pt.18) 550

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DECISION VOID WHERE NATURAL JUSTICE IS ABSENT

Adigun v. Attorney- General of Oyo State (1987) 2 NWLR (Pt. 56) 197 where the Supreme Court stated: “If the principles of natural justice are violated in respect of any decision, it is indeed immaterial, whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared as no decision.”

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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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SHOULD NOT RECEIVE EVIDENCE FROM ONE SIDE BEHIND THE BACK OF ANOTHER

Lord Denning in KANDA V GOVERNMENT OF MALAYA [1962] AC 322, stated thus: “If the right to be heard is to be real right which is worth anything, it must carry with it a right of the accused man to know the case which is made against him. He must know what evidence has been given and what statement had been made affecting him, and then must be given an opportunity to correct or contradict them. This appears in all the cases from the celebrated judgments of Lord Loreburn, L.G in The Board of Education v Rice down to the decision of their Lordships’ Board in Ceylon University v Fernando. It follows therefore that the judge or whoever has to adjudicate must not hear evidence or receive representation from one side behind the back of the other. The Court will not inquire whether the evidence did work his prejudice. The risk of it is enough. No one who has lost a case will believe he has been fairly treated if the other side has had access to the judge without his knowing.”

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FAIR HEARING INCLUDES A PARTY’S RIGHT TO CROSS-EXAMINE

There is no doubt that the well-settled position is that in order to be fair, “hearing” or “opportunity to be heard” must, inter alia, encompass a party’s right to cross-examine or otherwise confront or contradict all the witnesses who testified against him.

– Ogunwumiju JSC. Junaidu v. State (2021)

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FAILURE TO OBSERVE FEAR HEARING VITIATES THE ENTIRE PROCEEDINGS

The law is now well settled that failure of a Court, such as the Court below in the instant appeal, to observe the right to fair hearing of a party in any proceedings before it, vitiates both the proceedings and the resultant decision of the Court whose proceedings is afflicted by the deadly, incurable and highly contagious virus of denial of fair hearing and this is notwithstanding the merit or otherwise of the respective cases of the parties or indeed how meticulous the proceedings were or even how sound the resultant decision is, they are all a nullity. This, in my finding, is the sure but unfortunate fate of the proceedings and ruling of the Court below as it affects the petition filed by the Appellant against the Respondent in this appeal, which ruling was clearly reached in flagrant breach of the Appellant’s right to fair hearing. This is so because in law the principles of fair hearing are not only fundamental to adjudication but they are also constitutional requirements which cannot be legally wished away. It is indeed a fundamental right of universal application. See Agbapuonwu V. Agbapuonwu (1991) 1 NWLR (Pt. 165) 33 @ p. 40. See also Agbogu V. Adiche (Supra) @p. 531; J.O.E. Co. Ltd V. Skye Bank Plc (2009) 6 NWLR (Pt. 1138) @p.518; Robert C. Okafor & Ors V. AG and Commissioner for Justice Anambra State (1991) 6 NWLR (PT.200) 659.

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

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