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IN HIGHER INSTITUTION, IF PUNISHMENT TO BE IMPOSED IS SEVERE, THERE MUST BE NATURAL JUSTICE

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It seems fairly settled now that the exercise of disciplinary powers may import a power to act judicially in accordance with natural justice. In higher educational institutions, if the penalty imposed or liable to be imposed is severe, the disciplinary proceedings have to be in accordance with the principles of natural justice. – Nnamani, JSC. Garba & Ors. v. The University Of Maiduguri (1986) 1 NWLR (Pt.18) 550

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fair hearing

THE FUNDAMENTALISM OF FAIR HEARING – STATUTORY AND CONSTITUTIONAL

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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THE VERY ESSENCE OF FAIR HEARING UNDER SECTION 36 OF THE CONSTITUTION

The court below at pages 289 to 291 of the record in its judgment examined the appellants’ complaint as to absence of fair hearing and said: “It must be noted that the court must balance its discretionary power to grant or refuse an adjournment with its duty to endeavour to give an appellant the opportunity of obtaining substantial justice in the sense of his appeal being granted a fair hearing or even in the court below. This is because of the need that in granting the hearing on the merits no injustice is done to the other party where that opportunity or fair hearing existed in the court below, the appellate court has no business interfering. See University of Lagos v. Aigoro (1985) 1 NWLR (Pt. 1) page 142; Ogundoyin v. Adeyemi (2001) 13 NWLR (pt. 730) 403 at 421. The very essence of fair hearing under Section 36 of the Constitution of the Federal Republic of Nigeria 1999 is a hearing which is fair to both parties to the suit; be they plaintiffs or defendants or prosecution or defence. The section does not contemplate a standard of justice which is biased in favour of one party and to the prejudice of the other. Rather, it imposes an ambidextrous standard of justice in which the court must be fair to both sides of the conflict. The hearing must be fair and in accordance with the twin pillars of justice, read as pillars of justice, namely audi alteran partem and nemo judex in causa sua per Onu J.S.C. at 421. See also Ndu v. State (1990) 7 NWLR (pt. 164) 550. A party who will be affected by result of a Judicial inquiry must be given an opportunity of being heard, Otherwise, the action taken following the inquiry will be Unconstitutional and illegal. See Ogundijun v. Adeyemi (2001) 13 NWLR (Pt. 730) 403 at 423 per Onu J.S.C. See also Atande v. State (1988) 3 NWLR (pt. 85) 681. In the light of the above I have no difficulty in Resolving this issue of fair hearing or not against the Appellant. Therefore this appeal lacking in merit is hereby dismissed.” I agree with the views expressed by the court below above. I am unable to hold that the appellants were denied their right to fair hearing as enshrined in section 36 of the 1999 Constitution.

— A. Oguntade, JSC. Pam & Anor. V Mohammed (2008) – SC.238/2007

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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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CARDINAL PRINCIPLE OF FAIR HEARING IS SACROSANCT

My lords, the point needs to be re-iterated again and again that the cardinal principle of fair hearing whether in relation to a civil or criminal matter is so sacroscent. The Latin maxim puts it this way: “Audi Alteram Partem” i.e. let the other party be heard. It simply means: hear the other side(s) in a dispute before reaching a decision. It is a constitutional requirement (Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). This Court made several pronouncements that the principle of fair hearing has been incorporated in our jurisprudence that a man cannot be condemned without being heard. The principle is applicable in all cases in which a decision is to be taken in any matter, whether in a judicial, quasijudicial or even in purely administrative proceeding involving a person’s interest in a property, right or personal liberty. Let the other party be heard! See: Adigun v. AG Oyo State (1997) ? NWLR (Pt. 678) page; Oyeyemi v. Commissioner of Local Government, Kwara State & Ors (1993) 6 NWLR (Pt. 299) 344.

— I.T. Muhammad, JSC. FRN v Maishanu (2019) – SC.51/2015

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FAIR TRIAL – RECOURSE TO SUPRA NATIONAL COURT

In the Case Concerning Bryan v. United Kingdom, 22 November 1995, paragraph 44, the European Court held that “A fair trial is a right which does no more than enable an aggrieved person to have recourse to a supra national court, so that the one who governs him may be condemned if the proof of a violation of his rights is established; the court must have jurisdiction to examine the points of fact and of law in the case which has come before it, in order that it may reform it…”

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FAIR HEARING IN A CRIMINAL TRIAL – STATE MUST ASSIGN COUNSEL TO ACCUSED IN CAPITAL OFFENCE

A fair hearing presupposes first and foremost a hearing. We operate the “Adversary System”. The major feature of this system is the passive and inactive role of the judge in the presentation of cases in court. The judge under our system is at best an attentive listener to all that is said on both sides. He is not an investigator. He speaks mainly to deliver judgments. This passive role of the judge emphasises the active role of counsel for the prosecution and for the defence. What is a “hearing” worth to an accused person who does not understand the language of the court, who does not know the rules of procedure, and who cannot properly present his case The right to counsel is thus at the very root of, and is the necessary foundation for a fair hearing. The ordinary layman, even the intelligent and educated layman is not skilled in the science of law and he therefore needs the aid and advice of counsel. It is because of this need that, in capital offences, attracting the death penalty, the accused is not left undefended. If he cannot afford the services of counsel the State assigns one to him. It is surprising that none was assigned to the appellant in the court of first instance.

— Oputa, JSC. G. Josiah v. The State (1985) – SC.59/1984

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