RIGHT TO FAIR HEARING

The right to a fair hearing is, perhaps the most important of all guaranteed rights. It is the
foundation on which other rights rest because it is at the root of the administration of both civil
and criminal justice. In the first place it guarantees a right to a hearing; that is a right to access to
courts and tribunals established by law whenever there is any question or dispute as to the rights
or obligation of a person or whenever any person is charged with a criminal offence. In the
second place, it imposes a duty on such courts and tribunals to act fairly, fearlessly, openly and
impartially. If adjudications are to command general acceptability as having been properly made,
they must possess the essential characteristics of openness, fairness and impartiality. And
where government rests on the consent of the governed, the general acceptability of adjudication
as possessing these essential characteristics is one of the vital elements in sustaining the consent
of the governed. That is the political philosophy on which the right to fair hearing rests. The
provision of the constitution of the Federal Republic of Nigeria, 1999, section 36 also attest to
this with both the civil procedure and criminal procedure.
It provides that in the determination of civil rights and obligations a person is entitled to fair
hearing within a reasonable time by a court or tribunal which is so constituted as to be
independent or impartial while provisions are also made to ensure that the proceedings are held
in public – in order to avoid what is known as cloistered justice.
What then is a fair hearing as decided by cases?
In Kotoye V. Central Bank of Nigeria and 7 Others (1989) 1 NWLR 429 the Supreme Court
held that fair hearing anticipated by Constitution implies that every reasonable and fair minded
observer who watches the proceedings should be able to come to the conclusion that the court or
other tribunal has been fair to all the parties concerned.
Applying the principles in Mohammed V. Kano N. A. (1968) 1 ALL NLR 424. the apex court
gave the following basic criteria and attributes of fair hearing which should include the
followings:
(a) That the court or tribunal 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) That the court or tribunal shall give equal treatment, opportunity and consideration to all
concerned. See Adigun V. A.G. of Oyo State (1987) 1 NWLR (Pt. 5)
(c) That the proceedings shall be heard in public and all concerned shall have access to and be
informed of such a place of public hearing; and
(d) That having regard to all the circumstances in every material decision in the case, justice
must not only be done but must be manifestly and undoubtedly seen to have been done. See
Deduwa V. Okorodudu (1976).10 SC. 329.
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 heard.
Once an appellate court therefore comes to the conclusion that a party was entitled to be heard
before a decision was reached but was not given the opportunity to be heard, the order or
judgement thus entered must be set aside.
Also note that the right to be heard in one’s own defence had been amplified by Denning M.R. in
Surinder Singh Kanda V. Government of Federation of Malaya (1962) A. C. 322 at 337.
as follows:
“If the right to be heard is to be a real right which is worth something it must carry with it a
right in the accused man to know the case which has been given and what statements have been
made affecting him, and then he must be given a fair opportunity to correct or contradict them”.
See the following cases for further details:
Amadi V. Thomas Aplin & Co. Ltd. (1972) 4 SC. 228;. Kano N.A. V. Obiora (1959) SC. NLR
577. The State V. Onagoruwa (1992) 2 NWLR (Pt. 221) 33; U.B.A. Ltd. V. Achoru (1990) 6
NWLR (Pt. 156) 254; Alhaji Umaru Abba Tukur V. Government of Gongola State (1989) 9
SCNJ 1 or (1989) 4 NWLR (Pt. 117) 517 and Stephen Adedeji V. Police Service Commission
(1967) 1 ALL NLR 631. Etc.

Provision Dealing with Impartiality

This section of the Constitution also reinforces the fact that judges must see themselves as
impartial umpires and they should have no business to descend to the arena of civil litigation.
See Ezeain Nnajiafor and Others V. Linus Ukonu & others (1985) 2 NWLR (Pt. 9) 686 at 697.
per Justice Bello JSC.
They should refrain at all times from telling Counsel what to do and how to do it; otherwise they
may be challenged for taking sides. See A.E. Macchi SPA & Others V. A.L.S. Limited (1986) 2
NWLR 443 at 444. In Kim V. State (1992)4 NWLR (Pt. 233) 17. These duties of
impartiality and fairness were re- echoed as follows:
“In our system of administration of justice, the judge must be and manifestly be seen to be an
impartial umpire. He must maintain a balance between the two parties to the dispute.
Therefore, any act of his that can ground the conclusion that he has taken sides in the conflict
vitiates the trial, while a trial studied with impartiality on one side is not fair hearing”. See
Akinfe V. The State (1988) NWLR (Pt. 85) 229, and Okoduwa V. The State (1988). 2 NWLR
(Pt. 77) 333 at 347. Fair hearing within the contemplation of section 36 of the 1999
Constitution is a manifest epitome of even handed justice. Therefore a judge should remain an
impartial umpire throughout the proceedings and allow parties to the conflict conduct their case
on their own initiative.
It will be improper for a judge to take any step in any proceeding which has even the remote
possibility of projecting an impression that the judge is handling the proceeding with a slant in
favour of one side against the other. See Arubo V. Aiyelere (1993) 3 NWLR (Pt. 280) 126.
Orizu V. Anyaegbunam (1978)) 5 SC. 21 and Ojo V. Oseni (1987). 4 NWLR (Pt. 66) 622 at
625.
Bias and Likelihood of It
A judge should not be hostile to any of the parties before him. He should not be a judge in his
own case in order that the public confidence in the administration of justice may be fully
maintained hence no man who has either a pecuniary or proprietary interest in a case before him
should be allowed to adjudicate on it. See Metropolitan Properties Company (FG) Ltd. V.
Lennon (1969) 1 QB 577 at 598
In summary, it is now conceded that to disqualify a person from acting in a judicial or quasi
judicial capacity upon the ground of interest (other than pecuniary or proprietary) in a subject
matter of the proceedings, a real likelihood of bias must be made to appear not only from
materials in fact ascertained by the party complaining, but from such further facts as he might
readily have ascertained and easily verified in the course of his disqualifications.
Note that the test for BIAS is whether there is a reasonable suspicion of bias when it is looked at
from the objective standpoint of a reasonable person and not from the subjective standpoint of an
aggrieved party.
.
Fair Trial within a Reasonable Time
The constitution compels a person to be tried within a reasonable time. This in essence is to do
away with the odious effect of delay in the administration of Justice.
This idea is salutary because delay usually defeats equity, for justice delayed is justice denied,
and as a matter of fact,
“Delay causes hardship, delay brings our courts in disrepute, delay results in deterioration of
evidence through loss of witnesses, forgetful memories and death of parties and makes it less
likely that justice will be done when a case is reached for trial”.
These points were well articulated in the case of O’Donell V. Watson Bros. Transportation
Company (1960) F. Supp. 577, 581, a case in America which went on for twenty years; and
see also the case of Ekeri V. Edo Kimisede (1976) NMLR 194. The Supreme Court accepted
the submission of counsel to the Plaintiffs/ Appellants that owing to the many long intervals of
delay in taking evidence and the long delay before delivering judgement the learned trial judge
ought to be regarded as having lost his impression of the evidence and the advantage of having
seen and heard the witnesses.
Authenticated Copies of Judgement
It is an important duty of a court delivering judgement to furnish all parties with duly
authenticated copies on the date of the delivery of judgement. See Section 294 of the 1999
Constitution, which reads:
“Every court established under this Constitution shall deliver its decision in writing not later
than 3 months after the conclusion of evidence and final addresses, and furnish all parties to the
case of the matter determined with duly authenticated copies of the decision on the date of the
delivery thereof”.
But in Chief Adedapo Adekeye & Another V. Chief Akin Olugbade (1987)6 SC. 268 at page
298. Oputa JSC adjudged that this provision is merely directory and not mandatory with regards
to the giving of authenticated copies of the judgements on the date that the judgement is
delivered. Section 36(7) of the 1999 Constitution however mandates the judge to provide as
concerning criminal proceedings.
It reads:
“When any person is tried for any criminal offence, the court shall keep a record of the
proceedings and the accused person or any person authorised by him in that behalf SHALL be
entitled to obtain copies of that judgement in the case within 7 days of the conclusion of the
case”.
See Olanrewaju V. Government of Oyo State and Others 9 NWLR (Pt. 265) 335 at page 349.
(1992) which deals with the meaning of the word “SHALL” in any enactment.
It states that the word SHALL in any enactment is MANDATORY rather than a mere
DIRECTIVE, and compliance is therefore binding and not left to the discretion of the person to
whom the enactment imposes the duty.
Right to an Interpreter
Every person who is charged with a criminal offence shall be entitled to be informed promptly in
the language that he understands and in detail of the nature of the offence.
In other words, the language must be properly interpreted to give him an opportunity to defend
himself. For every person who is charged with a criminal offence, for example, shall be entitled
to have without payment the assistance of an interpreter if he cannot understand the language
used at the trial of the offence.
Any negation of this principle therefore definitely contravenes not only the constitutional
provision of Nigeria, but also the principle of Natural Justice. This was in fact established in the
case of Buraima Ajayi and Julande V. Zaria Native Authority (1964) NLR (Pt. 11) pages 61 –
65. where the appellants successfully appealed to the Supreme Court against the High Court’s
refusal to interfere with their conviction in a Native Court on the ground that the interpretation in
the Native Court had been unsatisfactory. The proceedings in the Native Court were in Hausa,
which the appellants neither spoke nor understood. They were Yoruba speakers by birth and
understood English, but not perfectly. The proceedings were interpreted into English and one
into Yoruba. It did not appear what language the other interpreted into. None of them was sworn.
The trial record gave their names but it did not appear how they came to be called on to interpret
or who they were, except that one was a school boy another was an Ibo who spoke English but
not Yoruba. Only one gave evidence in the High Court. The High Court found that in at least two
occasions the ability of the interpreters satisfactorily might be questioned, but that in fact, the
whole proceedings has been interpreted correctly.
On appeal it was held amidst all other facts that this was wrong. It deprived the appellants of
their constitutional rights, and that it contravened the principles of natural justice which demand
that justice needs not only be done but must be manifestly seen to be done. The Supreme Court
held as follows:-
“It was essential to be satisfied that the appellants had a fair opportunity to defend themselves
and in particular that they were accorded in full the right conferred by section 21 (5)(c) of the
Constitution of the Federation, which requires that there shall be adequate interpretation to the
accused person of anything said in a language that he does not understand, and equally that
there shall be adequate interpretation to the Court of anything said by the accused person in a
language that the Court does not understand. The Court further held that there is a failure of
justice within the meaning of section 382 of the Criminal Procedure Code, if the proceedings at
the trial fall short of the requirement not only that justice be done but that it may be seen to be
done, as that maxim has been applied by the Judicial Committee in Adan Haji jama V. The King
(1948) A. C. 225, and by the Queen’s Bench Division in such cases as RexV. East Kerier Justice
Ex-parte Munday (1942)”. QB. 719.

Opportunity to Defend
The Constitution under the Fundamental Human Rights provides that a person charged with a
criminal offence shall be entitled to be given adequate time and facilities for the preparation of
his defence. This means that if for any special reason he cannot defend himself properly without
an adjournment, the court should grant him legitimate adjournment. See Alhaji Ramonu Bello V.
Dr. M.O. Thompson, (1972) W.S.C.A. Volume II pp. 43 – 56 Maxwell V. Keun. (1928) 1
KB. 645 at page 650. Solanke V. Ajibola SC 96/97 unreported. Therefore where in a given
case it is conclusively established that the trial has been conducted in such a way as to lead but to
the conclusion that an accused person was not offered adequate opportunity to put across his
case, as for example, when an application for adjournment has been unreasonably or capriciously
refused, or that the right to call a witness whose evidence is material to the just determination of
the case has been denied, a Court of Appeal will undoubtedly interfere with the judgement of the
trial court and hold that a failure of justice has been occasioned. Lastly, it must be emphasised
that a person standing trial must be allowed to call any witness to testify in his or her favour
without any hindrance.
In summary, the following safeguards are available to an accused in a criminal trial:
(1) An accused shall be presumed innocent until he is proved guilty. (2) An accused has a right
to be informed promptly of the nature of the offence in the language that he understands.
(3) He has a right to be given adequate time and facilities for the preparation of his defence,
Gokpa V. I.G.P. (1961) 1 All NLR 423. Where the accused was brought from Port Harcourt
without his counsel and an application for adjournment of trial was refused by the trial court. It
was held that there was no fair hearing.
(4) An accused has a right to defend himself in person or by a counsel of his choice. But in
Awolowo V. Federal Minister of Internal Affairs (1962) LLR and Awolowo V. Sarki (1962) was
held that a counsel means a Nigerian that is enrolled to practice in Nigeria and one that is free to
enter Nigeria without prohibition. (5) Also an accused has a right to examine witnesses called by
the prosecution and obtain the attendance of witnesses in his favour on the same condition as
those applying to prosecution witnesses.
(6) An accused has a right to, without payment, the assistance of an interpreter if he cannot
understand the language used at the trial. See Ajayi V. Zaria N.A. (1964) NMLR 61.
(7) He has also a right to obtain copies of the judgement within 7 days – Note in this regard that
section 258(1) of the Constitution.
(8) An accused cannot be convicted for an offence that did not constitute an offence at the time
of the act or commission.
(9) An accused cannot be tried a second time for an offence for which the accused had been
previously convicted or acquitted and or pardoned.
(10) Right not to be compelled to give evidence at the trial is accorded to an accused person.
(11) Right not to be convicted for an offence not defined by law is also available to an accused
i.e. accused can only be charged with a statutory offence. In Aoko V. Fagbemi (1961) ANLR
400. High Court quashed the conviction of the appellant by a Customary court for the offence of
“committing adultery by living with another man without judicial separation”.

Right of Confrontation and Cross Examination

It is a fundamental rule of natural justice that a man charged before any tribunal should know the
nature or full particulars of the charges against him before the trial. He should be given copies of
the evidence taken without him, and he should be permitted to make cross examinations on them,
otherwise justice is not done. In other words, he must be given adequate opportunity to know the
case he has to meet and failure to supply him with a full statement of the facts or evidence upon
which a panel and eventually a tribunal relied will be a denial of justice and a breach of the rules
of Natural Justice.
This was the decision of the Federal Supreme Court in the case of Denloye V. Medical and
Dental Practitioners Disciplinary Tribunal Suit No. SC/91/1965 of November 22. 1965).
In this case, it was alleged that Denloye issued Certificates of fitness on various dates to three
different persons after collecting monies from each one of them, and without examining them.
He was preferred these charge; but instead of allowing him to be present before a panel who took
evidence on this, evidence was taken without him, and the matter was eventually brought before
the tribunal. At the tribunal, his counsel urged for the production of evidence which was said to
be confidential and this he was refused; nor were even the witnesses recalled. He was found
guilty and he appealed accordingly.
The Federal Supreme Court held that while it is not in dispute that any tribunal of this nature is
entitled to decide its own procedure and lay down its own rules for the conduct of inquiries
regarding discipline as was decided in R.V. Central Tribunal Ex-Parte Parton, 32 TLR 476.
it is of the utmost importance that the inquiry be conducted in accordance with the principles of
Natural Justice. The court further referred to the case of Russel V. Duke of Norfolk (1949)
(1949) 1 ALL E.R. 109 at 118. and the words of Tucker L.J. (as he then was) who said:-
“The requirement of natural justice must depend on the circumstances of the case, the nature of
the inquiry, the rule under which the tribunal is acting, the subject-matter that is being dealt with
and so forth”.
Surely the appellant in the present case was entitled to know the nature of the evidence given
against him on the 7th August, 1967 before the panel; and it was wrong to withhold this evidence
from him. Referring to such right, the Privy Council in the case of Kanda V. Governor of the
Federation of Malaya (1962) A. C. 322 was quoted as follows:
“If the right to be heard is to worth anything, it must carry with it the right in the accused man to
know the case which is made against him. He must know what evidence has been given and what
statements have been made affecting him, and then he must be given a fair opportunity to correct
or contradict them”.
As a result of all the above propositions, the Supreme Court held that justice has not been done
to the appellant and therefore allowed his appeal.

Right to Counsel
The constitutional provision states that every person who is charged with a criminal offence shall
be entitled to defend himself in person or by legal practitioners of his own choice. The
interpretation of this provision was vividly curtailed in the case of Awolowo V. Federal Minister
of Internal Affairs (1962) the counsel to the plaintiff was refused entry into Nigeria by an
immigration officer through the directive of the Federal Minister of Internal Affairs; and
consequently was unable to defend the plaintiff. As a result the plaintiff complained that the
refusal is prejudicial to his best interest as his liberty is in jeopardy. The Plaintiff further
complained that this refusal was a denial of his constitutional right as provided for in section
21(5)(c) of the second schedule to the Nigerian (Constitutional Order in Council 1960).
But the Court held that the provision referred to was never intended to be invoked in support of
the expensive undertaking of importing lawyers whether British or otherwise into Nigeria.
The Court further held that section 21(5)(c) of the Constitution is subject to certain limitation as
follows:-
“It is clear that any legal representative chosen must not be under a disability of any kind. He
must be someone who, if outside Nigeria, can enter the country as of right, and he must be
someone enrolled to practice in Nigeria. For if the legal representative cannot enter Nigeria as
of right, and he has no right of audience in the Nigerian Courts then he is under disability”.
…The Constitution is a Nigerian Constitution meant for Nigerians in Nigeria. It only runs in
Nigeria. The natural consequence of this is that the legal representative contemplated in section
21(5)(c) ought to be someone in Nigeria, and not outside.