BREACH OF RIGHT TO FAIR HEARING: Effect of proceedings conducted in breach of right to fair hearing  

 

 Anonymous
Joined: 51 years ago
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02/11/2018 3:32 pm  

"It is the law that, in a Judicial or quasi-Judicial body, in order for a hearing be fair, it must include the right of the person affected: (i) to be present all throughout the proceedings and hear all evidence against him; (ii) to cross-examine or otherwise confront or contradict all the witnesses that testify against him; (iii) to have read before him all the documents tendered in evidence at the hearing; (iv) to have disclosed to him the nature of all relevant material evidence, including documentary and real evidence, prejudicial to the party save in recognized exceptions; (v) to know the case he has to meet at the hearing and have adequate opportunity to prepare his defence; and (vi) to give evidence by himself, call witnesses if he likes, and make oral submissions either personally or through Counsel of his choice.

In Darma v. Eco Bank (2017) LPELR-SC.20/2005, at 16; & Adegbola v. Idowu (2017) LPELR-SC.584/2013(R) at 24, the Supreme Court per Ogunbiyi, JSC held: "The law is also well settled that the best of adjudication which should earn the justice of the case is that which is decided on the participation by all parties in a proceeding. Section 36(1) of the 1999 Constitution, on the concept of fair hearing, is very well enshrined in our Constitution and hence judicial system." See also Council of Fed. Polytechnic, Mubi (1998) LPELR-3168(SC) 10; Baba v. NCAA (1991) LPELR-692(SC) 34-35. Thus, fair hearing in the context of Section 36(1) of the Constitution (supra) encompasses the plenitude of natural justice in the narrow technical sense of the twin pillars of justice - audi alterem partem and nemo judex in causa sua - as well as in the broad sense of what is not only right and fair to all concerned, but also seems to be so. From the facts on record, the Appellant was excluded in proceedings where his civil rights and obligations were in issue and were subsequently determined. His opportunity to participate in the proceedings and to defend himself from the allegations against him were foreclosed by the Tribunal when, after it had stayed the proceedings against him sine die, it went ahead to find him liable for the allegations and made far-reaching Orders against him. There is no gainsaying the fact that the Appellant was not heard at all on the allegations against him, before the Tribunal reached a decision which was prejudicial to him. As a result, equal treatment, opportunity and consideration were not given to him. Thus, justice cannot be said to have been done to the Appellant in the circumstances of the case.

It is a fundamental principle of justice and fair hearing that no man ought to be condemned without being heard. In the instant case, the trial was conducted without fairness and equal treatment to both parties in the suit, the Appellant having not been fully afforded the opportunity to participate in the proceedings before the Tribunal and to state his defence. No trial can be regarded as valid unless the Court and/or Tribunal have heard both sides in the conflict. Once it is established that a right to fair hearing has been breached in a judicial or quasi-judicial proceeding, it vitiates the proceeding; and any Appeal arising therefrom ought to be allowed. Also, when there is a denial of such right, the only Order that can be made on Appeal is one for a re-trial or a re-hearing. This is to enable the Appellant to be properly heard. See Kalu v. State (2017) LPELR-SC.474 (2011) 9-14; & Danladi v. Dangiri (2014) LPELR-24020(SC) 58."

 

Per SANKEY, J.C.A. IN EBONG v. SEC CITATION: (2017) LPELR-43548(CA)


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