Right to Fair Hearing

The Right to Fair hearing had been in existence under the principles of natural law before its encapsulation within the tenets of the constitution. To Iluyomade and Eka, it can be defined as a right in man to have a fair and just treatment at the hands of the rulers or their agents.

The importance of this right can be seen in the landmark case of Ridge v Baldwin where the court held that once power being exercised affects access right, it just be exercised fairly whatever the nature of the power.

S.36(1) of the 1999 constitution states:

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 its independence and impartiality.

As was observed by the Court in Kotoye v CBN in relation to the 1979 constitution:

Fair hearing in the context of S.33(1) of the constitution encompasses the plenitude of natural justice in the narrow technical sense of the two pillars of justice – audi alteram patem (hear the other side) and nemo judex in causa sua (a man shall not be a Judge in his own case)…

S. 36(2) provides that an administrative body can be empowered by law to determine issues that affect a person’s civil rights and obligations provided the affected person is allowed to make representations before the body whose decision must not be final and conclusive.

Per S. 36(3), the proceedings of a court or tribunal must be held in public at all times. There appears to be no exception to this requirement. See the case of Mohammed v Nwobodo where the proceedings of the matrimonial case were held in the Judge’s chamber for two days though none of the parties requested trial in camera, the Supreme Court held that the Judge’s chamber was not a trial court to which members of the public would normally have access and thus rendering the proceedings null and void. The Court in Oyepipo v Oyinloye however noted that trial in chambers does not necessarily imply secret trial and it may be public if members of the public are not excluded from the trial.

S. 36(4) provides however that whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time or tribunal. Note that this Subsection states “criminal offence”, not “civil obligations”. In relation to criminal trials thus, there are exceptions to the requirement that the trial must be in public:

1. A court or such a tribunal may exclude from its proceedings persons other than the parties thereto or their legal practitioners in the interest of:

defence, public safety, public order, public morality;
the welfare of persons who have not attained the age of eighteen years;
the protection of the private lives of the parties;
special circumstances in which publicity would be contrary to the interests of justice.

2. Where in any proceedings before a court or such a tribunal, a Minister of the Government of the Federation or a commissioner of the government of a State satisfies the court or tribunal that it would not be in the public interest for any matter to be publicly disclosed.

Also, Trial must be within a reasonable time. See the case of Ogwueri v State where bail was granted to the accused persons who has been standing trial for alleged murder for eight years.

S. 36(5) deals with the Presumption of Innocence. Thus, every person charged with a criminal offence is to be presumed innocent until proven guilty. This provision has been deemed to be the basis of right to bail. By S. 138 of the Evidence Act, the burden of proof is on the prosecution. The burden of proving particular facts may however fall on the accused exceptionally.

S. 36(6) states that 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 of the nature of the offence;

(b) be given adequate time and facilities for the preparation of his defence;

See the case of Gokpa v IGP where the accused person, ignorant that his case was to come up that day, asked for adjournment to enable him brief a counsel but was given till that afternoon, though the nearest lawyer was twenty-three miles away. He therefore refrained from taking part in the proceedings and was subsequently convicted. The Court of appeal quashed the conviction and ordered a new hearing for want of fair trial.

See the case of Powell v Alabama where the court held that the right to be heard would in many cases mean nothing without the right to be heard by a counsel because laymen have no skill in the science of law. In the case of Ezea v The Queen as well, the court held that the accused person shall not have counsel vested on him but shall be at liberty to “choose his own counsel”. Thus, the Court is not allowed to impose a counsel on the accused. Such a counsel must arise from the accused' choosing.

To further this right to legal representation, the constitution under S. 46(4)(b) empowers the National Assembly to make laws for rendering financial assistance to indigent citizens whose fundamental rights have been infringed upon so as to enable them engage the services of a legal practitioner to prosecute their claim.

(d) examine, in person or by his legal practitioners, the witnesses called by the prosecution before any court or tribunal and obtain the 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; and

(e) have, without payment, the assistance of an interpreter if he cannot understand the language used at the trial of the offence.

The aforesaid right is so important that in the case of Samson Uwaekweghinya v The State, the Supreme Court held that even if the accused does not ask for an interpreter, the failure to supply one by the Court would be treated as a procedural irregularity and so, conviction may be set aside depending on whether such an irregularity had led to a miscarriage of justice.

S. 36(7) states that when any person is tried for any criminal offence, the court or tribunal shall keep a record of the proceedings and the accused person or any persons authorized by him in that behalf shall be entitled to obtain copies of the judgement in the case within seven days of the conclusion of the case. Per the Court of Appeal in Alhaji Mika’ilu v The State, the argument that the Judge may have lost her impression of witnesses by that time is not enough since there was no evidence that she relied on such impressions to reach her decision.

S. 36(8) speaks on retrospective legislation. It states that no person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence heavier than the penalty in force at the time the offence was committed.

S. 36(9) speaks against double jeopardy. It states that no person who shows that he has been tried by any court of competent jurisdiction or tribunal for a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order of a superior court.

S. 36(10) further speaks on Pardon. It states that no person who shows that he has been pardoned for a criminal offence shall again be tried for that offence.

S. 36(11) states that no person who is tried for a criminal offence shall be compelled to give evidence at the trial. Make good recourse to the Right to silence under S. 35(2).

S. 36(12) Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefor is prescribed in a written law, and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law. The celebrated case of Aoko v Fagbemi falls under this subsection.