Right to Fair Hearing

The right to a fair hearing is perhaps the most intrinsic of all guaranteed rights. It is the foundation on which all other rights hold ground because it is at the root of the administration of both civil and criminal justice. It connotes a judicial proceeding that is conducted in such a manner as to conform to fundamental concepts of justice and equality.

The Supreme Court in Kotoye V. Central Bank of Nigeria and 7 Ors held that;

"Fair hearing anticipated by the 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 parties concerned."

In the first place, it guarantees a right to a hearing; that is a right to access to court and tribunals established by law whenever there is any question or dispute As to the rights and obligations 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.

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 given the opportunity of being heard.

The Right to a Fair Hearing is guaranteed in Section 36 of the 1999 constitution. Section 36(1) provides that:

"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 a manner as to secure its in dependence and impartiality."

In Peterside V. IMB (Nig.) Ltd, NIKI TOBI JCA, following the definition in the Black's Law Dictionary came to the conclusion that the word "civil" in Section 33(1) (the equivalent of Section 36(1) in the 1999 constitution) is not used in contradistinction to the word "criminal". "Civil rights" as in Section 36(1) connotes human rights and excludes other legal rights i.e. contract, tort, etc.

Fair hearing is entrenched in the two concepts of natural justice. Thus, Section 36(1) is a reduction to the writings of common law maxims. They are;

1. Audi Alterem Partem
2. Nemo judex in causa sua

Audi Alterem Partem

This rule demands that each party involved in a case must be given an opportunity to present and state his case.

Hence, all the parties must be given notice of hearing so as to have the opportunity to present their cases before a decision is made. He must be given the full statement of the facts against him and evidence relied upon must be made available to him.

In the Nigerian case of Garba V. University of Maiduguri, Oputa JSC. explained the rule thus;

"God has given you two ears, hear both sides"

Nemo judex in Causa sua

This arm of natural justice requires that a person should not be a judge in a case in which he is interests are brought to the fore. Between both sides, the judge must hold the scale impartially and disinterestedly, his only interest being that justice be done and be seen to have been done.

Everything must be cleared which will engender suspicion and distrust of the court. Interest may come from the court having direct, peculiarly or proprietary interest, or simply from bias against one of the parties.

Bias

Bias has been judicially defined to mean an inclination or preconceived opinion or disposition to decide a case or an issue in a certain way which does not leave the mind perfectly open to conviction.

The rule against bias is that if an adjudicator has any interest in the matter in court, he ought not to adjudicate. In the consideration of bias, the courts are not concerned with whether the adjudicator is actually bias, but whether there is a likelihood of bias which could be determined from all the circumstances of the case.

The test of bias, whether there is a reasonable suspicion of bias, should be looked at from the objective standpoint of a reasonable man and not from the subjective standpoint of an aggrieved party.

In Nnamdi Azikwe University V. Nwafor, the Court of Appeal held that by allowing the members of the examinations committee who allegedly saw the alleged acts of examination malpractice by the respondent to take part actively in the deliberation of the senate which decided to suspend the respondent, these members of the examination committee were judges in their own case.

However, in Deduwa V. Okorodudu, the Supreme Court held that the mere fact that the trial judge's mother was an Itsekiri (i.e. of the same ethnic group as the respondents) and lived in an Itsekiri community at the material time is not sufficient to disqualify him from adjudicating on the matter on the ground that he had an interest in the subject matter of the suit. This was reinforced by the fact he had no pecuniary or proprietary interest in the matter.

Independence of the Court

Section 36(1) and (4) of the 1999 constitution provide not only for the right to a fair hearing but a fair hearing by an independent and impartial court or tribunal.

According to the Supreme court in LPDC V Fawehinmi, the expression "court or tribunal" are interchangeable within the context of the constitutional provisions. They defined it as "any statutory body which has the power to decide controversies and give decisions"

Independence of the judiciary means far more than immunity from interference, it means that judges are free to bring their own sense of value to bear in interpreting a law and do not simply reflect the values of government.

The issue of independence of the court is therefore no longer simply one of protecting the judiciary as an institution from executive or legislative interference. It extends to shielding the judge from any form of pressure and sources of influence or pressure.

In Abiola V. Federal Republic of Nigeria, the Supreme court held inter alia, that it is clear from the provision of Section 33(1) of the 1979 constitution that the independence and impartiality of a court are part of the attributes of fair hearing.

Bodies of Person to whom

The rules of fair hearing under the constitution which incorporates the rules of natural justice applies not to just to proceedings before courts or tribunals, but also to hearings before administrative authorities as provided for in Section 36(2).

In the case of LSPDC V. Foreign Finance Corporation, a right of occupancy was revoked by an administrative body under the Land Use Act. The court held that it was a matter affecting the civil rights and obligations and that the persons affected must be allowed to make a representation which includes the right to be furnished with sufficient particulars of the ground of revocation. Also in Fawehinmi V. LPDC, it was held that the LPDC is bound to obey the rules of fair hearing. In this instance, the Chairman of the tribunal was also the chief prosecutor. This opposes the maxim of nemo judex in causa sua which states that you cannot judge in your own cause.

Trial in Public

In relation to the determination of civil rights and obligations, the constitution provides in Section 36(3) that proceedings of court or tribunal as to the determination of civil rights and obligations of parties shall be held in public. All legal disputes must be heard in open court.

In Mohammed V. Nwobodo, the proceedings of a matrimonial case were held in the judge's chambers for two days, although none of the parties requested trial in camera. The Supreme court held that the judge's chambers is not a court hall to which members of the public would normally have access to, and thus rendering the proceedings null and void. It would appear then that the determinant factor is whether or not the public have access to the venue.

Fair Hearing and Criminal Trials

Criminal matters cannot be tried by administrative bodies such as disciplinary committees, investigative panels nor executive and legislative arms of government as it is beyond their jurisdiction under the 1999 constitution.

Oputa JSC. in FCSC V. Laoye stated that:

"the jurisdiction of the ordinary courts to try an allegation of crime is a radical and fundamental tenet of the rule of law and the cornerstone of democracy"

Section 36 (4) - (12) of the 1999 constitution makes elaborate provisions aimed at safeguarding the right of the accused in criminal trials. The constitution, in those sections lays down specific requirements, which must be observed by a court in the criminal trial of an accused person.

Section 34(4)- Criminal Fair hearing stated

By virtue of the provisions in Section 36(4), the following requirements are expressly stated to be indispensible to a criminal trial;

• Fair hearing
• Trial in public
• Trial within reasonable time
• Trial by a court or tribunal

Section 36(5)- Presumption of Innocence

"Every person who is charged with a criminal offence shall be presumed to be presumed to be innocent until he is proved guilty"

This presumption puts the burden on the prosecution to prove the accused person's guilt, and the standard of proof is proof beyond reasonable doubt. In the cases of Are V. COP and Woolmington V. DPP, the court held that it is the duty of the prosecution to prove its case beyond reasonable doubt and a balance of probabilities. This provision forms the basis of Section 137 of the Evidence Act which examines the burden of proof in civil and criminal cases.

Section 36(6)- Criminal Court Proedure

By virtue of the provision of Section 36 (6), the accused person is also entitled to the following rights;

1. To be informed promptly and in a language he understands and in detail, the nature of the offence for which he is to be charged.
2. Adequate time and facilities for the preparation of his defence. - In GOKPA V. COP, it was held that the adequate facilities were not given to the plaintiff as he was denied bail and adjournment of his trial.
3. Defend himself in person or by a legal practitioner of his own choice - In Udofia V. The State, the Supreme court held that fair hearing was denied when an accused person was represented "improperly, ineffectively and half-heartedly".
   In Awolowo V. Usman Saki, Awolowo's lawyer was denied entry into Nigeria. The Supreme Court however claimed that the right to a counsel is qualified by the willingness and the ability of the counsel. In this case, the counsel was willing but was not able.
4. d. Examine witnesses of the prosecution and present his own witnesses.
5. Assistance of the interpreter - In SHENFE V. COP it was held that a "blow by blow interpretation is required every sentence must be properly and fully interpreted to and from the accused."

Section 36(7)- Right to record proceedings

"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 other persons authorized by him in that behalf shall be untitled to obtain copies of the judgment in the case within seven days of the conclusion of the case."

The purpose of this is to allow the accused to pursue his constitutional right of appeal. In FRN V. OJUOLA OBISAN & Ors where the record of proceedings was demanded and his former judgment which is the imprisonment of 3 years to a fine of 300 naira at the appeal court.

Section 36(8)- No Retrospective Legislation

"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"

Essentially, the law states that you cannot back-date a written law. A person cannot be convicted of a crime which was not a crime at the time is was not committed. The Military regime in Nigeria is most guilty of this. There are about 300 military decrees guilty of retrospective legislation.

In the case of Bartholomew Owoh V. Benard Osadegbe, the plaintiff committed the offence of drug trafficking before the military decree of death penalty for the offence but was still convicted and summarily executed.

Also, in Ikpasa V. The State, the appellant who was charged with murder was prosecuted under a new law, not the one in the force at the time of commission of the act but which attracts the same penalty as the old one, and had only a procedural difference. The court held that argument based on the rule against retroactive legislation was misconceived as there was no miscarriage in justice.

Section 36(9)- Double Jeopardy

"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 the offence, save upon the order of a superior court"

This provisions codified the common law doctrine of autre fois acquit or autre fois convict as the case may be. In Rabiu V. The State, it was contended before the Supreme court that proceedings on appeal against acquittal of an accused infringed Section 33(9) of the constitution (now Section 36 (9)). The court held that the subsection was not infringed since the subsection contemplates the trial of an accused person by a court of first instance.

Section 36(10)- Pardon

A pardon is the forgiveness of a crime and the cancellation of the relevant penalty; it is usually granted by a head of state (such as a monarch or president) or by acts of a parliament or a religious authority. It is a general concept that encompasses several related procedures: pardoning, commutation, remission and reprieves.

Section 36 (10) of the 1999 constitution provides that:

"No person who shows that he has been pardoned for a criminal offence shall again be tried for that offence"

Today, pardons are granted in many countries when individuals have demonstrated that they have fulfilled their debt to society, or are otherwise considered to be deserving. Pardons are sometimes offered to persons who are wrongfully convicted or who claim they have been wrongfully convicted. In some jurisdictions, accepting such a pardon implicitly constitutes an admission of guilt, so in some cases the offer is refused. Cases of wrongful conviction are nowadays more often dealt with by appeal than by pardon; however, a pardon is sometimes offered when innocence is undisputed to avoid the costs of a retrial. Clemency plays a very important role when capital punishment is applied.

Some incidents where heads of states and governments and governors of states have granted convicted persons pardons includes the following:

• President Olusegun Obasanjo pardoned notorious armed robber; Sina Rambo.
• Former American President, Richard Nixon was pardoned by President Gerald R. Ford after the Watergate Scandal.
• General Yakubu Gowon granted Dim Chukwuemeka Ojukwu a pardon 13 years after going to Cote d'ivoire on exile for inciting the Biafra war.
• Ex- Bayelsa governor, Diepreye Alamieyesiegha was pardoned by current Nigeria president Goodluck Jonathan.

Section 36(11)- Self Incrimination

"No person who is tried for a criminal offence shall be compelled to give evidence at the trial"

In Agbachom V. The State, the trial judge put the accused in the witness box, examined, convicted and sentenced him for contempt. It was held on appeal that putting the accused in the witness box compulsorily and not in the dock, and putting questions to him contradicted Section 22 (g) of the 1963 constitution (which is similar to Section 33 (11) of the 1999 constitution).

Section 36(12)- Written Crime

"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 therefore is prescribed in a written law"

In AOKO V. FAGBEMI, the conviction of an accused person for adultery was set aside because adultery was no offence under any written law in Southern Nigeria.

Written law as expressed by the constitution refers to any Act of the National Assembly or a law of a State House of Assembly.

Effect of Non-Compliance

In Adigun V. AG. Oyo State, the Supreme court per Obaseki JSC proclaimed the consequence of a breach of the right to fair hearing succinctly by stating;

"the right to fair hearing being a fundamental constitutional right guaranteed by the constitution, the breach of it in any trial or investigation or inquiry and any action on them is also a nullity."

NB: Once a breach of the right to be heard is established, whether or not the decision made subsequently is correct is irrelevant because any breach of any component of the right to a fair hearing renders the proceedings in the case null and void.