The Principle Of Fair Hearing And How It Affects The Decision Made In Judicial And Quasi- Judicial Proceedings By: Y.A, Usman Esq (Ar-Rohees)

INTRODUCTION:

One of the cardinal features of Administration of justice is to afford a person an opportunity to be heard, which is generally derived from the principle of natural justice. Natural justice under common law connotes an inherent right of a person to be heard, and it is synonymous with the constitutional right of fair hearing. Unarguably, all relevant national statutes or enactments, particularly the Constitution of the Federal Republic of Nigeria have recognized and constitutionalised the right of a citizen to fair hearing.

The Principles of natural justice and likewise fair hearing are meant to protect all the rights of the public against any deprivers or oppressors. If a person is not given a right to be heard, definitely such a person looses all other rights which are meant to be protected by law.

Fair hearing as a principle under the constitution and statutory provision needs to be given to a party in both legal/judicial proceedings and quasi – judicial proceedings which consist of pre-trial, trial and post – right of a case. This paper will only give the definition of fair hearing without the definition of natural justice, this is because; the two contexts speak the same language and shall be considered together.

THE MEANING OF FAIR HEARING:

Ordinarily, what constitutes fair hearing depends on the circumstances of each case. Fair hearing is defined in the case of AROBIEKE VS N.E. L. M. C¹ it was held thus:

“Fair hearing means giving equal opportunity to the parties to be heard in the litigation before a court or tribunal, an ad-hoc tribunal inclusive. Where parties are given opportunity to be heard and the charge or complaint against the party standing trial or being investigated made available to them,  they cannot complain of breach of fair hearing principles…”

The concept of fair hearing in accordance with Section 36(1) of the Constitution of the Federal Republic Nigeria, 1999 as amended is adumbrated as follows:

“FAIR HEARING within the meeting of section 36(1) of the 1999 Constitution means a trial conducted according to all legal rules formulated to ensure that justice is done to the parties. It encompasses not only the compliance with the rules of natural justice, but also audi alteram partem. It also entails doing in the course of trial, whether civil or criminal trials, all the things which will make an impartial observer, leave the court room to believe that the trial has been balance and fair on both sides to the trial. A fair hearing must involve a fair trial, and a fair trial of a case consists of the whole hearing. The true test of a fair hearing is the impression of a reasonable person who was present at the trial whether, from his observation, justice has been done in the case².

Having highlighted the meaning of fair hearing which summarily means a judicial or administrative hearing conducted in accordance with due process. This paper examines the principle of fair hearing from the following two angles;

1- Fair hearing /trail in judicial proceedings,

2- Fair hearing in quasi – judicial proceedings. This also consists of;

1. Fair-hearing in public or private sector (employer and employee relation), and
2. Tertiary Institutions as a student.

FAIR HEARING IN JUDICIAL PROCEEDING:

It is a position of law both in common and Constitutional law that all parties must be granted without any iota of discrimination, the right of equal access to justice.

The common and Constitutional laws require that an individual who may be affected by any court decision should be properly informed of the case against him and heard; in order to allow him to defend himself if at all there is a defence.

The principle of natural justice or fair-hearing is solely meant to avoid bias in a case, particularly on the part of a judge, so that every reasonable person who attends the court proceedings would be satisfied that the court been fair to all parties involved before the pronouncement of the judgment.

Section 36(1) of the Constitution Federal Republic of Nigeria, 1999 as amended provides thus:

 “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 it’s independence and impartiality.³“

Apparently, from the above section, the Constitution that serves as a moderator for the action and interest of all the citizens requires any court to conduct the proceedings in accordance with the procedural steps or rules formulated to ensure that justice is done to the parties. It is very important to note that, this provision also requires the observance or consideration of the twin pillars of the rules of natural justice, namely, audi alteram partem ” hear the other party”  and nemo judex in causa sua ” no one is a judge in his own case”.

First pillar which is “audi alteram partem ” means that a court must hear both parties to a dispute at every stage of proceeding. In other words, parties should not be subjected to any decision of a court without being given an opportunity to be heard.

Further still, there are basic criteria which should be seen considered before the fair hearing can be confirmed done; the criteria and attributes of fair hearing were set out in the case of Sani vs. State⁴ It was held thus:

“This court set out certain basic criteria and attributes of fair hearing, as follows –

i – That the courts shall hear both sides not only in the case but also on all material issues in the case before reaching a decision, which may be prejudicial to any party in the case ;

ii – That the court or tribunal shall give equal treatment, opportunity, and consideration to all concerned ;

iii – That the proceedings shall be heard in public and all concerned shall have access to and to be informed of such a place of public hearing ;

iv- That having regard to all the circumstances, in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done.”

The second pillar which is “nemo judex in causa sua “means A judge should not be a judge in his own cause, i.e.; a judge before whom the matter is, should not have substantial interest in that matter or any of the parties to the dispute to the extent of influencing the outcome or to be seen to have influenced the outcome of the decision.

Undoubtedly, if a person sits in his or her own case as a judge to decide the case, the outcome of the said proceeding will never be free from a serious and several criticisms.

2- QUASI JUDICIAL PROCEEDING:

i- Public and private sectors:

Generally, there is always the employer-employee relation which is referred to as the legal link between the both parties. However, in a situation where there is a complaint raised or filed against the employee for misconduct, fraud and the likes, it is a duty of the employer to afford the employee the opportunity of fair hearing (to be heard) before he can be sanctioned and if possible removed from the office. It is very paramount to inform the employee about his alleged offence and breaches, and set up a panel to conduct the investigation in respect of the allegation. The Ad-hoc Disciplinary Committee or as the case maybe who is to determine the magnitude and culpability of the employee will carry out a thorough investigation and recommend appropriate disciplinary actions against the employee if found guilty.

The employer after the proper investigation, and giving the suspect an opportunity of being heard and defence may exercise his power over the suspect by terminating his employment/appointment ; if found culpable. It was held by Supreme Court in the case of Arobieke vs N.E.L.M.C⁵ (Supra)

“I agree entirely with the lower court that the Ad-hoc Committee that was set up by the respondent was an administrative panel, which did not require framing of formal charges against the appellant. Under the common law, before an employer can dispense with the service of his employee, he needs to afford the employee an opportunity of being heard before exercising his power of dismissal, even where the allegation for which the employee is being dismissed involves accusation of crime. There is no requirement that there must be a formal charge against the employee “.

It is also worth to note that, any panel set up for inquiry needs to allow the employee to answer the query before the employer takes a decision to terminate the employment relationship between them; in order to satisfy the requirement of fair hearing. Not only this, the Disciplinary committee should not also receive evidence behind the back of the employee being investigated. This is because; the employee should be allowed to cross examine those witnesses who testify against him. The court held in the case of U.C. H.B.M vs Morakinyo⁶

“One of the essential elements of fair hearing is that the body investigating the charge against a person must not receive evidence or representation behind the back of the person being investigated. Where it does, the court will not inquire whether such evidence or representation did not work to the prejudice of the person being investigated. It is sufficient that it might. The risk is enough. It is a clear violation of natural justice in this case for the Disciplinary Committee to permit witnesses to testify against the appellant without giving him the opportunity to cross – examine them. “

Let me briefly apply my analytical mind in considering the principle of fair hearing as to exercise power of the Governor to remove the Emir. There is no doubt that, the Governor is vested with power to remove the Emir once he is satisfied that it is necessary to do so either because of gross misconduct or incompetence or in the public interest. Nevertheless, the due process must be followed before such power is exercised, such as an administrative panel of inquiry or a judicial Commission of inquiry to investigate any allegation against the Emir in order to comply with the principle of fair hearing.

ii- Tertiary Institutions:

Every tertiary institution particularly the Universities have their rules and regulations guiding the conduct of students while on the campus, and if any of the students act against the rules and regulations will be penalized by the school management. Notwithstanding, the student against who the allegations of misconduct is leveled needs to be heard by making an inquiry as to the authenticity and veracity of the said allegations.

It is very unfortunate where the rules and regulations of University is not known or has been reviewed, and the fact is unknown to the students, and the students keep acting on known rules and regulations. He or she discovers at the point of being allegedly challenged, that the rules and regulations have been reviewed by the school management. To make it clearer, let me put it in illustration. Students while in 100 level were given examination cards written at the back of it, the rules and regulations guiding the conduct of students during the examination. The rules and regulations allow students to enter with hand phone but such must be switched off. Unknown to the students that the rules and regulations has been reviewed, the students while going for examination in 200 level entered the examination hall with their phones switched off. The students believe the rules and regulations remain the same. These students were caught for the examination malpractice and claimed that the rules and regulations allowed them to enter with their phones, but when they looked at the back of their examination cards, they discovered that the rules have been reviewed and that bringing phones to examination hall; whether it is switched off or not, is prohibited and amounts to examination malpractice.

Under the Examination Malpractices Act, 1999, the offence of examination malpractice is not only a criminal offence against the University, but also against the State. However, it is equally the requirement of the common law, statutory and Constitutional law that a person who has some charges leveled against him or is facing a trial before the court or any penal is entitled to fair hearing before he is found guilty and made suffer its consequence. It was the decision in the case of Muhammad vs A. B. U, Zaria⁷ the court held thus:

“It should be recognized that even if the respondents were authorized or empowered by the University Act to punish the appellants, i.e.; expel them as a result of examination malpractice, the said Act did not authorize the respondents to punish the appellants in clear contravention of the appellants’ constitutionally guaranteed right to fair hearing. The act of denial of right to fair hearing is an arbitrary act prejudicial to the appellants’ right. It is unlawful act contrary to the principles of natural justice guiding judicial and quasi judicial bodies in their investigative capacity. “

EFFECTS OF EX-PARTE INJUNCTION OVER THE PRINCIPLE OF FAIR HEARING

Arguably, in order to balance the equation on the issue of whether or not the ex-parte order/injunction has negative effects over the principle of fair hearing; several legal experiments had been conducted in a legal laboratory, the result of which clear the atmosphere and settle the matter. Before the statement of this result, it is apt to know what ex-parte order/injunction is all about.

In a civil proceeding, there are certain steps which are allowed to be taken at the preliminary stage before the substantial case. This is allowed; in order to preserve the subject matter of the dispute.

An ex-parte application is one which is made to the court without the other party or parties in the litigation being put on notice or heard. The application is usual granted by the court in cases of extreme urgency where irreparable damage may be caused to the applicant or the subject matter if the court requires that the application should be served on the other party. In the case of Animashaun vs Bakare⁸

“Ex-parte orders are intrinsically unconstitutional in nature because they are made without offering the other party a hearing. The courts have however retained and exercised the powers to make ex-parte orders in order to avoid situations where irreparable damage may be done to the res of any dispute. That is why ex-parte orders must be made most sparingly and must be made for a very limited amount of time principally to put the other party on notice of the complaint against his conduct. “

Also in the above judicial authority, the court set up the following principles guiding the grant of ex-parte injunction.

a – Where there is a real urgency.

b- The interim injunction is until a certain day, usually the next motion day by which time the other side should have been put on notice.

c- It cannot be granted pending the determination of the substantive suit.

d- It is granted where it is necessary to preserve the res.

e- There must be a real impossibility of bringing the application for such injunction on notice and serving the other party.

f- The application must give a satisfactory undertaking as to damages and must not be guilty⁹.

The ex-parte may look like having negative effect on the principle of fair hearing but that’s not a correct position, rather it also protects the right of party pending the time the substantial suit is determined. Though, the grant of ex-parte order has now been abused to the extent that it has been converted into a bulldozer for the demolition of substantial justice¹⁰. Nevertheless, there are two options open to the other party who is not put on notice while making the application. In this circumstance, the party may apply to the court to discharge or vary the said order if it was improperly made or apply for the accelerated hearing especially where the economy of a state, corporation and or nation is at stake, and granting that will serve the proverbial interest of justice in a case.

The legitimate expectation of all people in the whole world is to see the substantial justice done either in judicial or quasi judicial proceedings. Any decision made either by a penal set up to an inquiry as to the query or any court pronouncement without due regards to the principles of fair hearing is void or nullity. Such proceeding in the eye of the law would be regarded as a building has no foundation to stand on.

Conclusion:

The principle of fair hearing in the judicial proceedings and quasi judicial proceedings cannot be abandoned or waived. Parties are expected to be given the equal access to court proceeding or Disciplinary Committee from its commencement up to the delivery of final judgment. There are different cases in our court today, particularly employer-employee relations where the employer believes he has every right to terminate the appointment of employee whenever he or she is suspected of acting ultra vires without setting up a penal to investigate the matter and afford the employee an opportunity to be heard. The twin pillars of this principle are; the suspect must be heard and the person who has interest in a matter should not be a judge in that particular case.

By: Y.A, Usman Esq (Ar-rohees), Phone: 07033589425, Email: rohees9090@gmail.com

END NOTES:

1. (2018) 5 NWLR (Pt. 1613 @ p. 383-402. paras. A-C.
2. Ukachukwu vs. P. D. P (2014)17NWLR (Pt. 1435) pp.163-164, paras. G-D)
3. Chapter IV of the Nigeria Constitution
4. (2018)8 NWLR (Pt. 1622)p.412 @ 439, paras. F-H.
5. Paras G-H :
6. (2014) 16 NWLR (Pt. 1434) pp. 614-615 paras. G-B.
7. (2014) 7 NWLR (Pt. 1407) 500 @ 536 – 537, paras. F- B
8. (2010) 16 NWLR (Pt. 1220) p. 513 @ 542, paras. E-G
9. Ibid P. 539, paras. C-F.
10. M.A Olong, J.M Agbonika and J.A Agbonika “Balancing The Concept of Fair hearing and Ex parte injunctions Under the Nigerian Legal system: An Imperative”- African Journal of Law and Criminology- Vol.2, No.1 (2012) P.41

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