FAIR hearing is natural justice and fairness which impose obligations on persons who have power to make decisions affecting other people to act fairly, in good faith, without bias and to afford a person the opportunity to be heard and adequately state his case, before a decision is made. In a nutshell, fair-hearing means the inherent right of a person to a fair and just treatment in the hand of rulers, their agents and other person.
The rights of a person in legal proceedings or quasi-judicial proceedings consist of three main sets or groups of rights; pre-trial rights, trial-rights and post-trial rights. These three sets of rights are mainly and collectively protected by the constitution. The two main requirements or ingredients of fair-hearing or natural justice have been adequately incorporated into the Nigerian constitution by the words “fair hearing” (audi-alteram partem), and “Impartiality” (nemo judex in causa sua) which are inserted under section 36 of the 1999 constitution. The remaining requirements of natural justice or fair-hearing are comprehensively and adequately encapsulated in the rest of the fair-hearing clause of the Nigerian constitution. Thus, fair-hearing is the modern name or term for natural justice.
The rules of natural justice or fair hearing are rudimentary, elementary and fundamental rules of fairness. They are rules of procedure to ensure fairness and justice to parties in a legal process or quasi-judical process. Audi alteram partem is a Latin expression which means, hear the other party. It is a principle of natural justice or fair-hearing and no one should be condemned unheard. For instance, in Federal Civil Service Commission-V-LAOYE, the Supreme Court unanimously frowned at the serious failure of persons exercising judicial and quasi-judicial powers to hear the other side before condemning and passing judgment: even though God knew what Adam and Eve had done, God himself who created all things, who has all powers and who knows everything, gave Adam and Eve the opportunity to state their defence before passing judgment. Therefore, it can safely be said that the requirement that there should be natural justice and fair-hearing in every matter and determination predates society. It is as old as the creation of man. Natural justice or fair hearing is common sense and proper.
The Latin phrase, nemo judex in causa sua means that, no one should be a judge in his own cause. No one should be both a prosecutor and a judge, in a matter in which he is a party, or has an interest or stake. A judge should be uninterested and unbiased in the subject matter or proceedings before him. This rule of natural justice or fair-hearing is meant to prohibit interest and bias in a case on the part of a judge. Whenever, a judge has interest or stake in a matter or where he is likely to be biased or be accused of being biased, because of any interest or relationship, he should decline from hearing the matter at hand, and let the chief judge or administrative judge assign the matter to another judge for hearing. An interest that will disqualify one, is probably an interest that makes one to desire earnestly, that the matters should go in favour of a particular side or that would likely occasion miscarriage of justice.
In the context of administration of justice, to hear a matter means to listen to a matter attentively, consider and decide it. For instance, in AKOH-V-ABUH, the Supreme Court said that to hear a cause or matter means to hear and determine the cause or matter. Delivery of the judgment in a matter is part of the hearing of 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.
Fair hearing or fair trial is a fundamental prerequisite for a just determination of disputes between parties. The establishment of the likehood of bias on the part of a judge or persons exercising judicial function in a proceeding for violation of the legal maxim: nemo judex in causa sua which means: no one should be a judge in his own matter. Partiality destroys the very root of a fair adjudication and the administration of justice in any legal system anywhere in the world. The test of bias, is whether there is a reasonable suspicion of bias, looked at from the objective standpoint of a reasonable person and not from the subjective stand point of an aggrieved party. Fair-hearing is not a technical doctrine or principle, but a rule of substantial justice. To affect a judgment and have it set aside or quashed for breach of fair hearing, it has to be shown that: fair hearing was infringed, fair hearing was clearly threatened with infringement of fair hearing; or there was a likely-hood of infringement of fair-hearing. It is not sufficient that fair hearing was merely suspected to have been infringed
Pre-trial rights include right to life, subject to exceptions under section 33 of the 1999 constitution; right to dignity of human person (Section 34) and right to personal liberty (Section 35). The trial rights of an accused person are mainly contained in the right to fair hearing provision of the Nigerian constitution. On the other hand, the post-trial rights of a person who has been convicted are many. When a convict is appealing the decision of the court, his rights are even more and cover the whole constitutional rights, that is, pre-trial rights, trial rights and post-trial rights.
It must be said that the principle of fair-hearing being a constitutional concept could only thrive effectively in a democratic system of government. The citizens can adequately assert their rights most efficaciously in a democracy. On the other hand it can safely be submitted that fair-hearing, fair-trial or natural justice, whatever name called also advances the elements and beauty of democracy in no measure, since fair hearing itself is the bedrock of justice, and justice must not only be done, but must be seen manifestly being done. Fair hearing pre-supposes that where there is a right or wrong there must be a remedy, hence, the Latin words that: ubi jus ibi remedium. The place of fair-hearing in a democracy in the 21st century cannot be short-changed, since both constitutional concepts develop each other in a mature democracy.
Oluwanisomo, a legal practitioner, writes from Ado Ekiti, Ekiti State.