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LACK OF FAIR HEARING AND JURISDICTION VITIATES PROCEEDINGS

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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

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

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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NATURE OF FAIR HEARING

Pam v. Mohammed (2008) LPELR-2895(SC), 26-27, per Oguntade, J.S.C., held as follows – “The question of fair hearing is not just an issue of dogma. Whether or not a party has been denied of his right to fair hearing is to be Judged by the nature and circumstances surrounding a particular case; the crucial determinant is the necessity to afford the parties equal opportunity to put their case to the Court before the Court gives its judgment … It is wrong and improper to approach the meaning of fair hearing by placing reliance on any a priori assumptions as to its technical requirements. The simple approach is to look at the totality of the proceedings before the Court and then form an opinion on objective standards whether or not an equal opportunity has been afforded to parties to fully ventilate their grievances before a Court. The principle of fair hearing cannot be applied as if it were a technical rule based on prescribed prerequisites. It seems a sufficient satisfaction of the principle if parties were afforded an equal opportunity without any inhibition to put across their case.”

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

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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NATURE OF FAIR HEARING

It is my humble view that fair hearing implies much more than hearing the Appellants testifying before the Disciplinary Investigation panel; it implies much 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 would 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, it be not by cross-examination? If these Tribunal or Boards, or Panels know that they cannot do all these, then, they should leave these trials to the law courts.

– Oputa, J.S.C. Garba & Ors. v. The University Of Maiduguri (1986) 1 NWLR (Pt.18) 550

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FAILURE TO GIVE FAIR HEARING DOES NOT AUTOMATICALLY LEAD TO A MISCARRIAGE OF JUSTICE

On whether the court below was right when it failed to consider and pronounce upon all the issues submitted to it by the appellant for its determination, I agree with the submission of the appellant’s Counsel that the court below failed to consider and pronounce upon the second issue for determination submitted by the appellant in that court. However, I am unable to hold that the failure to do so led to any miscarriage of justice in the circumstances of the case. There was also no denial of fair hearing as enshrined in Section 33 of 1979 Constitution. Failure to consider and pronounce on all issues submitted to a court or tribunal will not, per se, amount to a denial of a right to fair hearing having regard to the judicial decisions on the principle. In some cases, it may occasion failure of justice which amounts to denial of fair hearing and in others as is the case in the present proceedings, it will not. See Kotoye v Central Bank of Nigeria & others (1989) 1 NWLR (Part 98) 419.

— Ogwuegbu, JSC. Bamaiyi v State (SC 292/2000, Supreme Court, 6th April 2001)

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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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