International Journal of Innovative Legal & Political Studies 4(4):1-10, Oct.-Dec.

2016

© SEAHI PUBLICATIONS, 2016 www.seahipaj.org ISSN: 2354-2926

The Role Of Fair Hearing In The Dispensation Of Justice In

Nigeria - A Legal Perspective

CHIGOZIE NWAGBARA, LL.M

Law Author & Lecturer, Faculty of Law
Nigeria Police Academy, Wudil, Kano State, Nigeria
Email: hichibaby@yahoo.com; +2348033335091

ABSTRACT
This paper analyses the critical role of the concept of fair hearing in the dispensation of Justice from the
Legal Perspective as the title portrays. The nature of Fair Hearing is that it is a Constitutional Right
guaranteed to all persons coming before every Court of Law. Fair hearing is founded on the twin pillars of
Natural Justice couched in the maxims audi alteram partem and nemo judex in causa sua. These two
tenets of fair hearing are entrenched in Section 36 of the 1999 Constitution of the Federal Republic of
Nigeria. Once there is an infringement of the principles of natural justice, the trial cannot be fair. Hence, it
is suggested in the conclusion to this work that there should be no infringement on any Party's right to fair
hearing, as the effect would be that the entire judgment will be set aside as null and void on Appeal.
Judges and those sitting over disputes in their respective capacities should do away with bias and myopic
sentiments which are the worst obstacles towards the achievement of any fair hearing, so that the
dispensation of justice will be a Reality rather than a Myth. In the absence of justice being achieved, the
establishment of the Law Courts and Tribunals will be a waste of time and Resources on the part of any
Government. Where the Law Courts cannot achieve their aim of giving sound judgments, anarchy can
easily be foreseen. It is also bad that at times, the Law Courts get pressurized by certain forces to give
biased judgments. This is absolutely wrong. The Judiciary is an Independent arm of Government, and it
has always been this way in most civilized Jurisdictions of the world. Therefore, it is desirable that it
should equally be left to perform its functions without threat or any hindrance from any other Arm of
Government, Quarters or Law Enforcement Agencies, as this will help the Judges get less biased over
Issues brought before them. Any erring member of the Judiciary will be disciplined according to the laid
down Rules. This Paper addressed certain questions such as: Does the principle of fair hearing
necessarily mean an Oral Hearing? What are the criteria and attributes of fair hearing? What are the
determinants of compliance with criteria for fair hearing or fair trial? Who is a Reasonable man or person
for the purpose of the test of fair hearing? This work elaborates on the major Duty of Administrative
Bodies or Tribunals to strictly observe the principles of Fair Hearing when acting judicially, the Burden
on the Party alleging breach of fair hearing, the advantages of having a Constitutional Fair Hearing
provision as part of the Nigerian Constitution. It also tells us when an Administrative Body acts
judicially, and of course, the interests that may disqualify a Judge from adjudicating over a Matter.
Keywords: Fair Hearing, 1999 Constitution of the Federal Republic of Nigeria, Judges, Law Courts,
Administrative Body, Tribunals, Fair Trial, Adjudication, Judiciary, Bias

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 Nwagbara …. Int. J. Innovative Legal & Political Studies 4(4):1-10, 2016

INTRODUCTION
What is a Hearing?
In the context of Administration of Justice, to hear Ok 1a Matter means to listen to a Matter attentively,
consider and decide on it. In the case of Akoh v. Abuh , the Supreme Court of Nigeria held that to hear a
Cause or Matter means to hear and determine the Cause or Matter. A Matter is in the process of being
heard from its commencement up to, and including the delivery of final judgment.
A hearing can only be fair when all the Parties to a dispute are given an opportunity to be heard. If one of
the Parties is not given an opportunity to be heard, the hearing cannot qualify as a fair hearing. The
concept of Fair hearing postulates a hearing in which the authority is fairly exercised, that is, consistent
with the fundamental principles of justice embraced within the concept of the Due Process of Law.
Contemplated in fair hearing is the right to present evidence, to cross examine and to have Findings
supported by evidence. Thus, it implies that both sides be given an opportunity to present their respective
cases, and that each side is entitled to know that a case is being made against it and be given an
opportunity to reply thereto. See Olugbenga Daniel v. Federal Republic of Nigeria2.
The Right to be heard is such an important radical and protective right that the Courts strain every nerve
to protect it and even imply it where a statutory form of protection will be less effective if it did not carry
with it the right to be heard. See UBA v. Oranuba3.
The Fair hearing provision in the Constitution is the only machinery or locomotive of justice, not a spare
part to propel or invigorate the case of the User. It is not a casual principle of Law available to a Party to
be picked up at Will in a case and force the Court to apply it to his advantage. On the contrary, it is a
formidable and fundamental provision available to a Party who is really denied fair hearing because he
was not heard or that he was not properly heard in the case. Litigants who have nothing useful to advocate
in favour of their cases should leave the fair hearing Constitutional Provision alone because it is not
available to them just for the asking4.
Section 36 of the 1999 Constitution of the Federal Republic of Nigeria has the relevant provisions for Fair
Hearing and states as follows:
Section 36 (1) - 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.
Section 35 (5) - Every person who is charged with a criminal offence shall be presumed innocent until
proved guilty.
Section 36 (6) - 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 the nature of the offence;
(b) be given adequate time and facilities for the preparation of his/her defense;
(c) defend himself in person or by Legal Practitioners of his own choice;
(d) examine in person or by his Legal Practitioners the witnesses called by the Prosecution before any
Court or Tribunal and obtain 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;
(e) have without payment, the assistance of an Interpreter, if he cannot understand the language used at
the trial of the offence.

1
(1988) NWLR PT 85pg 676 (SC); Ese Malemi: The Nigerian Constitutional Law (2012) Princeton Publishing Company, Ikeja,
Nigeria @ p. 362
2
(2014) 8 NWLR PT 1410 p. 570 @ 575-576
3
(2014) 2 NWLR PT 1390 p. 1 @10 (Per Iyizoba, JCA); Olatunbosun v. NISER Council (1988) 3 NWLR PT 80 p. 25
44
Per Iyizoba, JCA in First Alstate Securities Ltd & Anor v. Adesoye Holdings Ltd (2013) 16 NWLR PT 1381, p. 470 @ 477
2
 Nwagbara …. Int. J. Innovative Legal & Political Studies 4(4):1-10, 2016

Section 36 (7) - 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 person authorized by him in that behalf shall be
entitled to copies of the judgment in the case within seven days of the conclusion of the case.
Section 36 (8) - No person shall be held to be Ok 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.
Section 36 (9) - 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.
Section 36 (10) - No person who shows that he has been pardoned for a criminal offence shall again be
tried for that offence.
Section 36 (11) - No person who is tried for a criminal offence shall be compelled to give evidence at the
Trial.
Section 36 (12) - Subject to 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 of a
State, any Subsidiary Legislation or Instrument under the provisions of a Law.
Fair hearing is the very foundation of justice and a prerequisite for a just determination of disputes
between Parties. The establishment of the likelihood of bias on the part of a Judge or person exercising
judicial function in a Proceeding vitiates the whole proceedings for violation of the legal maxim nemo
judex in causa sua which means that no one should be a Judge in his own cause. Partiality as a result of
bias destroys the very root of a fair adjudication and the administration of justice in any legal system
anywhere in the World5. It was equally held in the case of Omoniyi v. Alabi6 that the consequence of a
successful argument that the appellant's right to fair hearing was breached is that the decision complained
of would be declared a nullity and set aside.
Fair hearing is not a technical doctrine, but a rule of substantial justice. To affect a judgment and have it
set aside for breach of fair hearing, it has to be shown that:
1. Fair hearing was infringed; or
2. Fair hearing was clearly threatened with infringement; or
3. There was a likelihood of infringement of fair hearing. It is not sufficient that fair hearing was merely
suspected to have been infringed7.
Denning MR in Metropolitan Properties Co. Ltd v. Lannon8 said there must be circumstances from which
a reasonable man would think it likely or probable that the Justice or the Chairman, as the case may be,
would or did favour one side unfairly at the expense of the other. The Court will not enquire whether he
did in fact favour one side unfairly. Suffice it that reasonable people might think he did. The reason is
plain enough. Justice must be rooted in confidence, and confidence is destroyed when right - thinking
minded people go away thinking the Judge was biased9.

ADVANTAGES OF A CONSTITUTIONAL FAIR HEARING PROVISION

Nowadays, many countries in the world have a Bill of Rights or a Fundamental Rights Chapter in their
Written Constitution, spelling out in detail the fundamental Human Rights of the People. In Nigeria in
particular, the Fair Hearing Provision in Section 36 of the 1999 Constitution has some obvious features

5
Ese Malemi: The Nigerian Constitutional Law (2012) p. 362
6
(2015) 6 NWLR PT 1456 p. 572 @ 578 (per Kekere – Ekun, JSC). It was held further held that a decision that is declared a
nullity is as if it was never made. Therefore, the decision reached no matter how well considered, would be declared a nullity, and
is bound to be set aside. See Mfa v. Inongha (2014) 4 NWLR PT 1397 p. 343; Adigun v. Att-General, Oyo State (1987) 1 NWLR
PT 53 p. 678.
7
Ese Malemi: The Nigerian Constitutional Law @ p. 363
8
(1968) 3 All ER 304
9
Metropolitan Properties Co. Ltd v. Lannon @ p. 310
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 Nwagbara …. Int. J. Innovative Legal & Political Studies 4(4):1-10, 2016

and advantages such as the following:

1. It is a comprehensive representation and codification of the Rules of Natural Justice
2. It is flexible in application
3. It is a fundamental or Constitutional Right whichOk is claimable as of right by any aggrieved Party. It is
not a mere principle which Judicial Bodies are directed to observe. It is a mandatory provision every
person or Body acting in a judicial capacity or who decides anything is bound to observe
4. It is easier to invoke by an aggrieved Party in aid of his case, because it is enshrined in the Constitution
5. It has a great and binding force of law on all persons and authorities in Nigeria. It has a constitutional
force. Rights guaranteed under the Constitution cannot in any way be detrimentally affected nor deferred
by Common Law or other Rules, unless as provided by the Constitution itself.
In The State v. Olu Onagoruwa10, Nnaemeka-Agu, JSC said a man can never have a verdict entered
against him on a Matter relating to his Civil Rights or Obligations before a Court or Tribunal without
being given an opportunity of being heard. The Rule is in fact, one of the essential cornerstones of our
judicial process11.
Karibi-Whyte, JSC in this same case held that '... a denial of the right to be heard is a breach of
Constitutional Right, natural justice and Rules of Court. It is an elementary and fundamental principle of
the administration of justice in Nigeria that no decision can be regarded as valid, unless the Trial Judge
or Court has heard both sides of the conflict12'.

DOES THE PRINCIPLE OF FAIR HEARING NECESSARILY MEAN AN ORAL HEARING?

The Principle of Fair Hearing as enshrined in S. 36 (1) of the 1999 Constitution of the Federal Republic
of Nigeria does not necessarily mean an oral hearing. What is required is that every party to the dispute is
given an opportunity to state his case. Each Party must know the case being made against him, and given
an opportunity to react thereto. See Gyang & Anor v. COP Lagos State& Ors13 where it was held that in
the circumstances of the case, the need for oral hearing did not arise. In this case, the Orderly Room Trial
which provided the material upon which the Police Provost Marshal carried out his Review was well
conducted with the appellants given ample opportunity to present their case and challenge the evidence
led against them through their Legal Representatives. The Appellants therefore did not show any breach
of their Fundamental Rights. See also Duke v. Government of Cross River State14.

DUTY OF ADMINISTRATIVE BODIES AND TRIBUNALS TO STRICTLY OBSERVE

PRINCIPLES OF FAIR HEARING WHEN ACTING JUDICIALLY
Administrative Bodies, like Tribunals acting judicially in the determination or imposition of a decision
that is likely to affect the Civil Rights and Obligations of a person are bound and enjoined to observe the
principles of fair hearing. The principle often expressed by the latin maxim ' audi alteram partem' which
means hear the other side has been for long enshrined in the Nigerian Jurisprudence. This was the
decision of the Supreme Court in Gyang & Anor v. COP Lagos State & Ors15 where the Appellants
commenced an action at the Federal High Court, Lagos by way of an Application of Leave to apply for an
Order of Certiorari, seeking a declaration that the Proceedings tagged CP's Review, signed by one J.A
Alade, a Commissioner of Police and Provost Marshal (FHQ), by which the Appellants were dismissed
from the Nigeria Police Force is unconstitutional, illegal, null and void, in that it breached the Appellants'
right to fair hearing as enshrined in S. 36 of the 1999 Constitution, an Order quashing the Proceedings
and reinstating the Appellants.

1010
(1992) 2 NWLR PT 221 p. 33; (1992) 2 SCNJ 1
11
Opcit @ p. 58
12
(1992) 2 NWLR PT 221 p. 33 @ 56
13
(2014) 3 NWLR PT 1395 p. 547 @ 552 (per Galadima, JSC)
14
(2013) 8 NWLR PT 1356 @ p. 347; Hart v. Military Governor of Rivers State (1976) 11 SC Report 109
15
(2014) 3 NWLR PT 1395 p. 547 @ 550
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The grounds upon which the Reliefs were sought were that the Appellants and others were earlier
discharged and acquitted of one count of corrupt practice brought against them in an orderly room Trial.
However, the Review Panel headed by the Force Provost Marshal which reviewed the earlier proceedings
and dismissed the Appellants from the Nigeria Police Ok Force did not give the Appellants a right to
represent themselves and be heard, thereby denying them their Constitutional Right to fair hearing. The
Appellants attached to the verifying affidavit in support of the application, the Proceedings and judgment
of the orderly room Trial as Exhibit A, the Proceedings of the Review as Exhibit B, and the Letter of
Appeal as Exhibit C.
At the conclusion of hearing, the Trial Court in its Ruling observed that in the Review proceedings
conducted by the Provost Marshal, no new evidence was adduced, no witness testified both for the
Prosecution and the defence, and there was no trial. The Reviewer merely reviewed the Proceedings of
the orderly Room Trial.
The Appellants appeal was dismissed, and Ruling of the Trial Court was affirmed. The Court of Appeal
held that the Commissioner of Police did not go outside the totality of the evidence as reflected in the
printed materials; that oral hearing was at the orderly Room Trial and the Appellants did not complain;
that it was the Review by the Commissioner of Police which is akin to an Appeal that they were
attempting to discredit by contending that the principles of fair hearing were not observed. The Court of
Appeal further held that the Review did not go outside the totality of the evidence led at the Orderly
Room Trial.
Dissatisfied, the Appellants appealed to the Supreme Court. In determining the appeal, the Supreme Court
considered the provisions of section 36 (4) of the 1999 Constitution which states that whenever any
person is charged with a criminal offence, he shall, unless the Charge is withdrawn, be entitled to a Fair
Hearing; and unanimously dismissed the Appeal. It held that in the instant case, the Review Panel acted
administratively, and the right of fair hearing of the appellants under Section 36 of the 1999 Constitution
was not breached. The Appellants were heard in full during the Trials, and the Review Panel had no need
to hear fresh or further evidence, nor was any such evidence called in the absence of the Appellants. See
The State v. Ajie16; Akande v. Nigerian Army17.
An Administrative Body in ascertaining facts, may be under a duty to act judicially notwithstanding that
its Proceedings have none of the formalities of and are not conducted in accordance with the Practice and
Procedure of a Court of Law. It is enough if it is exercising judicial functions in the sense that it has to
decide on the materials before it between an allegation and a defence. However, the modern concept is
that the duty placed on such a Body is to act fairly in all such cases. It is not a question of acting or being
required to act judicially, but of being required to act fairly18.
An Administrative Body has the option to decide whether to deal with a Matter before it by oral hearing
or by written evidence and argument(s) provided. Dealing with an appeal on written or printed evidence
or communications only, is not itself a breach of the principles of Fair Hearing. In Gyang & Anor v. COP
Lagos State & Ors, it was not disputed that the Review Panel of the Commissioner of Police merely
evaluated the oral evidence which had been accepted before the Orderly Room Trial. The Proceedings at
which the Appellants complained that they were denied fair hearing was a Judicial Review19. In the
instant case, the purport of the Review of the Commissioner of Police was intended to re-examine
administratively the decision of the Orderly Room Trial. The Review panel did not try the appellants. It
simply examined the proceedings and judgment of the Orderly Room Trial20. Therefore, a Party who has
been given ample opportunity to be heard, or has in fact been heard, cannot complain of denial of fair

16
(2000) 11 NWLR Pt 678 p. 434
17
(2001) 8 NWLR PT 714 p. 1
18
Gyang & Anor v. COP Lagos State & Ors (2014) 3 NWLR PT 1395 p. 547 @ 551; Hart v. Military Governor, Rivers State
(1976) 11 SC Rep 109; Falomo v. Lagos State Public Service Commission (1977) All NLR 102
19
Review in this context refers to a judicial re-examination of the case in certain specified and prescribed circumstances.
20
(2014) 3 NWLR PT 1395 @ pp 551 - 552
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hearing21.

WHEN DOES AN ADMINISTRATIVE BODY ACT JUDICIALLY?

This issue was considered by Oputa, JSC in LegalOkPractitioners' Disciplinary Committee v. Fawehinmi22
where he said ' the debate over what constitutes a Judicial Tribunal, quasi-Judicial Tribunal, a domestic
Tribunal, a Tribunal Simpliciter, Arbitrament, Forum competens, etc, will certainly go on as an academic
exercise, but once a Body of persons by whatever name called, are invested with authority to hear and
determine particular issues or disputes, either by consent of the disputants or by an Order of Court, or by
the provision of a Statute, such a Body will be required to carry out its function with that fairness and
impartiality which the Rules of Natural Justice dictate. Therefore, the Legal Practitioners Disciplinary
Committee which exercises under the Legal Practitioners Act of 1975 the important function of
considering and determining cases of misconduct alleged against Legal Practitioners, should in every
step they take in this important sphere of human activity, be guided by the important principles of eternal
or natural justice. That seems to be elementary enough23.

CRITERIA AND ATTRIBUTES OF FAIR HEARING

According to the Supreme Court of Nigeria in Olugbenga Daniel v. Federal Republic of Nigeria24, there
are certain basic criteria and attributes to gauge whether a trial or hearing is fair or not. These are:
a. The Court 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 pre-judicial to any Party in the case;
b. The Court or Tribunal shall give equal treatment, opportunity and consideration to all concerned;
c. The Proceedings shall be held in Public and all concerned shall have access to and be informed of such
Public Hearings; and
d. Having regard to all the circumstances in every material decision in the case, justice must not only be
done, but manifestly and undoubtedly be seen to have been done25.

DETERMINANTS OF COMPLIANCE WITH CRITERIA FOR FAIR HEARING OR FAIR

TRIAL26
To determine whether the basic criteria and attributes of a fair trial are satisfied, the Court must ensure
that the person to be affected by the Proceedings is given the following rights:
i. to be present throughout the Proceedings and hear the evidence against him
ii. to cross examine or otherwise confront or contradict all the witnesses that testify against him;
iii. to have all documents tendered in evidence at the trial read before him;
iv. to have disclosed to him the nature of all relevant materials of evidence, including documentary and
real evidence prejudicial to him;
v. to know the case he has to meet at the hearing and to have adequate opportunity to prepare for his
defence; and
vi. to give evidence by himself, call witnesses, if he chooses to, and make oral submissions, whether
personally or through a Counsel of his choice.
Once a Trial is conducted in accordance with the above requirements, it will be said to be fair 27. Per

21
See Agbaso v. Iwunze (2015) 11 NWLR PT 1471 p. 527 @ 537-538 where it was held that the appellant was given opportunity
to be heard and was in fact heard. In this case, the Appellant cannot complain of denial of Fair Hearing.
22
(1985) 2 NWLR PT 7 p. 300
23
LPDC v. Fawehinmi @ p. 387
24
(2014) 8 NWLR PT 1410 p. 570 @ 576
25
Olugbenga Daniel v. FRN @ p. 576
26
Olugbenga Daniel v. FRN @ pp 576-577
27
Olugbenga Daniel v. FRN @ p. 577; Adigun v. Attorney-General, Oyo State (1987) 1 NWLR PT 53 p. 678; Maikyo v. Itodo
(2007) 7 NWLR PT 1034 p. 443; Usani v. Duke (2004) 7 NWLR PT 871 p. 116; Kotoye v. CBN (1989) 1 NWLR PT 98 p. 419;
Deduwa v. Okorodudu (1976) 10 SC 329
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 Nwagbara …. Int. J. Innovative Legal & Political Studies 4(4):1-10, 2016

Tsammani, JCA @ p. 617 paras E - G, In that respect, once from the observation of a reasonable person,
the trial Court has followed the procedure laid down for such hearing and has not violated any of the
principles of natural justice, it can hardly be argued that an accused person has not had a fair hearing or
Ok
Trial as intended by the Constitution. I say so because the Supreme Court had stated in several of its
decisions that a fair hearing in relation to a case means that the trial of a case was conducted in
accordance with the relevant Laws and Rules of Court. This Right commences from the time the accused
person is brought before the Court, and his plea taken and continues to avail the accused until delivery of
judgment.
However, where a Party who has been given adequate time to present his case at the Trial Court fails to
adduce proper evidence in support of his case, he should not complain of lack of fair hearing on appeal28.
In First Alstate Securities Ltd v. Adesoye Holdings Ltd29, Iyizoba, JCA held as follows: there is no better
description for the conduct of learned Counsel for the appellants in the brazen he attempted to introduce
the principle of fair hearing by his blatant refusal to file their response until the eleventh hour, knowing
fully well that they had no answer to the case of the Respondent in order to create the opening for the
defence of lack of fair hearing. The Courts are no fools, and cannot be that easily deceived. Learned
Counsel did not even bother to get a Medical Report to support the alleged ill health of the second
appellant that prevented them from putting in their defence timeously. The days of such technical
application of the law are gone, and gone forever. The justice of the case must always prevail30. ... It is
the duty of the Court to create the atmosphere or environment for a fair hearing of a case, but it is not the
duty of the Court to make sure that a Party takes advantages of the atmosphere or environment by
involving himself in the fair hearing of the case. A Party who refuses or fails to take advantage of the fair
hearing process created by the Court cannot turn around to accuse the Court of denying him fair
hearing. A Trial Court can indulge a party in the Judicial Process for some time, but not for all times. A
Trial Court has the right to withdraw its indulgence at the point the fair hearing principle will be
compromised or will not really be fair as it affects the opposing party. At that stage, the trial court will
rightly too, for that matter, retrace its steps of indulgence and follow the path of fair hearing as it affects
the opposing party who equally yearns for it in the judicial process. The Party who is not up and doing to
take the advantage of the fair hearing principles put at his door steps by the trial court cannot complain
that he was denied fair hearing.... The Fair hearing principle formerly entrenched in S. 33 of the 1979
Constitution, and now S. 36 of the 1999 Constitution is not for the Weakling, the Slumber, the Indolent or
the lazy Litigant, but it is for the Party who is alive and kicking in the judicial process by taking
advantage of the principle at the appropriate time. The principle is not available to a Party who sets a
trap in the litigation process against the Court and accuses the Court of assumed wrong doing, even
when such so-called wrong doing is as a matter of fact, propelled or instigated by the Party through his
Counsel31.
It is to be noted that the question of fair hearing is a matter of fact which must be established by
evidence32.

BURDEN ON PARTY ALLEGING BREACH OF FAIR HEARING

Any Party alleging the breach of Fair Hearing has the burden to prove the breach, and he must do so in
the light of the facts and circumstances leading to the alleged breach. This is because the facts only,
determine acts which constitute non-compliance with the principles of Fair Hearing. In Nicholas
Ukachukwu v. Peoples Democratic Party & Ors33, it was held by the Supreme Court that the Appellant
who was given full opportunity to defend the Appeal at the Court of Appeal as the Respondent, but
28
Transamerica Corporation v. Akande (2014) 15 NWLR PT 1431 p. 502 @ 505
29
(2013) 16 NWLR PT 1381 p. 470
30
Per Iyizoba, JCA @ p. 477
31
Per Iyizoba, JCA @ pp 478 - 479
32
Nicholas Ukachukwu v. PDP (2014) 17 NWLR PT 1435 p. 134 @ 146
33
(2014) 17 NWLR PT 1435 @ 146 (per kekere – Ekun, JSC)
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decided to throw away that opportunity through his learned Counsel who decided to abandon the case,
cannot now turn round to claim that he was denied Fair Hearing by the Court of Appeal.

WHO IS A REASONABLE MAN OR PERSON Ok FOR THE PURPOSE OF TEST OF FAIR

HEARING?
There is a legal personality known as a reasonable man. He is sometimes also known as a reasonable
person or a reasonable citizen. His opinion is usually consulted in Courts to solve legal problems. He is a
ubiquitous fictional figure of the Law. The test of a reasonable person in Nigerian Courts is not that of a
person whose mind and thoughts are colored by political, sectional or other primordial considerations. A
reasonable person is one who is able to weigh his observations objectively. Fundamentally, such
reasonable person is one who was present in Court, and not based on other events outside the court. He
does not base his conclusion about pending Court Proceedings on what he reads in a newspaper. He must
be one who was in Court and observed the Proceedings from the beginning to the end, before he arrived at
the conclusion as to whether despite the publication in the Newspaper, the Party before the Court had a
fair hearing34.

INTERESTS THAT MAY DISQUALIFY A JUDGE FROM ADJUDICATING OVER A

MATTER35
Some interests or circumstances that may disqualify a Judge or a person from adjudicating a Matter are as
follows:
1. Pecuniary Interests, that is, financial interests or doing a favour36
2. Relationship37 with a Party or Parties, such as kinship, Family, Friendship, enmity, special association,
etc.
3. Previous participation, decision or involvement in the Matter38
4. Foreknowledge or previous knowledge of the facts of the case
5. Hobnobbing with a Party
6. Biased, partisan or unbecoming comment in support of a Party
7. Unwarranted verbal or other attack on a Party
8. Descending into the arena in support of one side
9. Combining the function of a Judge with that of a Prosecutor, Witness or other Party
10. Inhibiting or denying a Party from effectively stating his case39
11. Personal attitude, hostility, preference or one side inclination of the Judge, and a host of other interests
or circumstances from which the inference or suspicion of a real likelihood of bias may be drawn.

CONCLUSION
The Right to a Fair, just and impartial hearing according to Natural Justice or the Fair Hearing Provisions
of the Nigerian 1999 Constitution cannot be ousted by any Law, whether during a Civil or Military Rule.
It is the only fundamental or Constitutional Right that cannot be denied by law, even in the worst of
times. It is an inherent right of every person who is called in any adjudication of dispute to have a fair

34
Per Daniel – Kalio, JCA in Olugbenga Daniel v. FRN (2014) 8 NWLR PT 1410 p. 570 @ 580; Ibori v. Federal Republic of
Nigeria (2009) 3 NWLR PT 1128 p. 283; Archibong v. Cross River State Newspaper Corporation (2001) 22 WRN 53; Okafor v.
Attorney – General, Anambra State (1991) 6 NWLR PT 200 p. 659; Olumesan v. Ogundepo (1996) 2 NWLR PT 433 p. 628;
Mohammed v. Kano Native Authority (1968) SCNLR 558
35
Ese Malemi: The Nigerian Constitutional Law (2012) pp 363 - 364
36
Dimes v. Grand Junction Canal Co. (1852) 10 ER 315
37
Secretary, Iwo Central LG v. Adio (2000) 8 NWLR PT 667 p. 115; Abiola v. Federal Republic of Nigeria (1995) 7 NWLR PT
405 p. 1
38
Eriobuna v. Obiorah (1999) 8 NWLR PT 616 p. 622 (CA)
39
Olaye v. MDPDT (1997) 5 NWLR PT 506 @p. 550 (CA); Okoduwa v. The State (1988) 2 NWLR PT 176 p. 333 (SC);
Omoniyi v. Central Schools Board (1988) 4 NWLR PT 89 p.448
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 Nwagbara …. Int. J. Innovative Legal & Political Studies 4(4):1-10, 2016

hearing. The principles enshrined in section 36 of the 1999 Constitution represent an indispensable
cornerstone of the well settled Rules of Natural Justice which must be observed in every determination of
the Rights and obligations of a person.
According to Karibi-Whyte, JSC in LPDC v. Fawehinmi Ok 40
, In the circumstances of this country, fair
hearing is an entrenched provision of the Constitution which cannot be displaced by legislation, however
unambiguously worded41. Therefore, the right of a person to fair hearing is so fundamental to the concept
of justice that the right can neither be waived nor taken away, whether expressly or by implication. A
denial of fair hearing by Law or by a partial hearing is an act of injustice.
This right to fair hearing concept gets abused when there is an allegation of bias on the part of a Judge or
any person heading a Tribunal or an Administrative Panel to adjudicate over a certain Matter. This even
extends to any person playing a leadership role in any other capacity. In Eriobuna v. Obiorah42, Tobi,
JCA43 while explaining the meaning of bias said ‘In a charge of bias, the integrity, honesty or fidelity of
purpose and the Judge's traditional role of holding the balance in the Matter are questioned. He is
branded or seen as one who leaves his exalted, respected and traditional arena of impartiality to descend
unfairly on one of the parties outside all known canons of judicial discretion. The Judge is said to have a
particular interest, a propriety interest which cannot be justified on the scale of justice, as he parades
that interest recklessly and parochially in the adjudication process to the detriment of the Party he hates,
and to the obvious advantage of the Party he likes. The Judge at that level, is incapable of rational
thinking, and therefore rational judgment. His thoughts are blurred against the party he hates. He is
poised for a fight, an uninstigated fight in which he is the main Participant. The conduct of the Judge
invariably and unequivocally points to one trend - and it is that he will give judgment to the Party he
favours at all cost, come day, come night, come rain or sunshine. Such is the terrible state of mind of the
biased Judge or one who is likely to be biased.... This arises when the Judge at one time or the other had
done something in the Matter to the extent that he cannot be said to be a completely neutral person or
stranger to it’44.

Now the question is this - are Judges all over the World really free from the guilt of bias? This question is
meant to strike the minds of all those who adjudicate over one dispute or the other, as they are in the best
position to answer this question. However, in my humble opinion, the answer is NO. It is advisable that
persons that have been guilty of bias for one reason or the other should stop this very unjust practice for
the dispensation of justice to be a Reality, rather than a Myth. Many suspects suffering and dying in
Prisons all over the World without being tried after spending over twenty four hours in detention, months
and years, equally stems from the abuse of the Fair Hearing principle. In this regard, the Law
Enforcement Agencies are not left out of the frustration of those detained, as they take sides with one of
the Parties and get the other Party arrested and detained without any immediate prosecution of the case.
The worst obstacle to achieving a fair hearing in any dispute remains the factor of bias, and no other. In
every Society, this should be put to a stop, while objectivity as a test should be adopted towards the
hearing of any case in order to arrive at the best possible judgment or decision obtainable. The Law
provides for the right to fair hearing, and nobody should feel he/she is above the law to sweep this
important right aside for others who crave it.
The right to fair hearing should also apply to all Parties to Civil Cases45. The 1999 Nigerian Constitution
of the Federal Republic of Nigeria should also be reviewed in such a way that the pronoun him should
refer to him/her. It appears as if every Nigerian is of the male gender, going by most Sections or
provisions of the 1999 Constitution. Generalizing both sexes with the pronoun him is not desirable for a
40
(1985) 2 NWLR PT 7 p. 300
41
opcit p. 370
42
(1999) 8 NWLR PT 616 p. 622
43
as he then was
44
(1999) 8 NWLR PT 616 p. 622 @ pp 628-629; Ese Malemi: The Nigerian Constitutional Law (2012) pp 360 - 361
45
In my humble opinion. The 1999 CFRN laid emphasis mostly on criminal cases.
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 Nwagbara …. Int. J. Innovative Legal & Political Studies 4(4):1-10, 2016

Constitution. Every other good Law should equally be devoid of any ambiguity. This suggestion for a
review of the pronoun him equally applies to the different Law Reports all over the World being used by
Lawyers for Research and other good purposes.
Ok

The Author, Barrister (Miss) Chigozie Ifeoma Nwagbara, LL.M is also a Solicitor & Advocate of the
Supreme Court of Nigeria.

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