How To Know If A Judge Is Fair Or Not: The Test For Justice

Daily Law Tips (Tip 654) by Onyekachi Umah, Esq., LL.M, ACIArb(UK)

Going to court to settle dispute is a fundamental human right of any person in Nigeria. Now, courts include; government and law created tribunals/courts operated by public servants and the non-governmental or law created tribunals/courts like arbitration panels, royal palaces and village meetings/squares.

Whenever disputants (quarrelling parties) freely submit themselves and their disputes to any court/tribunal as well as agree to be bound by the outcome (judgment/award), the court/tribunal has a duty to do justice to the disputants/parties. Substantial justice is same colour and height across the world. So, this work focuses on how to easily detect a magistrate, judge/court or arbitrator that has done justice to cases and parties before him.

Justice is the daughter of Fair hearing. Without Fair Hearing they can never by Justice. No matter the science and magic employed, Justice can never have a Surrogate, rather one is at risk of birthing Injustice. There are basic factors that must be present and approaches that must be employed at all times, for Justice to be birthed/done in any case in any place in Nigeria. This is applicable in any type or kind of case, from Civil cases to Criminal cases and Fundamental Human Rights Enforcement cases. Where any court or arbitration tribunal hears any case without Fair Hearing its process and outcome must be nullified and declared worthless.

To understand the factors and approaches that make up Fair Hearing as well as the effect of lack of fair hearing to any judicial or quasi-juridicial proceeding, below are the words of the appellate courts in Nigeria;

1. “It is trite law, and plethora of authorities have established that to be accorded fair hearing in any trial, a party must: (i) be entitled to a counsel of his choice; (ii) be afforded the opportunity to call all necessary witnesses in support of his case; (iii) have the opportunity of cross examining or challenging the evidence of witnesses called by his adversary; (iv) have the same right as his adversary through his counsel to address the Court on the law in support of his case.” Per ADAMU JAURO ,J.C.A ( P. 18, paras. A-D ) in the case IFEKAUDU v. IBEAGWA (2012) LPELR-14436(CA)
2. “In a judicial or quasi – judicial body, a hearing in order to be fair must include the right of the person to be affected. i) to be present all through the proceedings and hear all the evidence against him; ii) to cross-examine or otherwise 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; v) to know the case, he has to meet at the hearing and have adequate opportunity to prepare for 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 own choice.” See P.H.M.B. v. Edosa (2001) 5 NWLR (pt.707) 612.”Per MARY UKAEGO PETER-ODILI ,J.S.C ( Pp. 28-29, paras. A-B ) in the case of JUDICIAL SERVICE COMMISSION OF CROSS-RIVER STATE & ANOR v. YOUNG (2013) LPELR-20592(SC)
3. “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 case. It is well settled that the fundamental basis underlying the principle of fair hearing is the doctrine of ‘audi alteram partrem’ which means, please hear the other side. See Akande v. The State (1988) 3 NWLR (Pt. 85) 681 at 690.” Per OLUDADE OLADAPO OBADINA ,J.C.A ( Pp. 34-35, para. A ) in the case of ABIA STATE TRANSPORT CORPORATION & ORS v. QUORUM CONSORTIUM LTD (2002) LPELR-10491(CA)
4. “What the rule or doctrine means is that the parties must be given equal opportunity to present their cases to the Court and no party should be given more opportunity or advantage in the presentation of his case.” Per KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN ,J.S.C ( Pp. 10-11, paras. F-C ) in the case of EGBUCHU v. CONTINENTAL MERCHANT BANK PLC & ORS (2016) LPELR-40053(SC)
5. “The effect of failure to observe the principle of fair hearing is that the proceedings are null and void, no matter how well conducted. His Lordship, Tobi, JSC had this to say in Orugbo & Anor. Vs Una & Ors. (2002) 16 NWLR (Pt.792) 175 @ 199 A-D: “The fair hearing principle entrenched in the Constitution is so fundamental in the judicial process or the administration of justice that breach of it will vitiate or nullify the whole proceedings, and a party cannot be heard to say that the proceedings were properly conducted and should be saved because of such proper conduction. Once an appellate Court comes to the conclusion that there is a breach of the principle of fair hearing, the proceedings cannot be salvaged as they are null and void ab initio. After all, fair hearing lies in the procedure followed in the case, not in the correctness of the decision. Accordingly, where a Court arrives at a correct decision in breach of the principle of fair hearing, an appellate Court will throw out the correct decision in favour of the breach of fair hearing, See generally: Ceekay Traders Ltd. Vs General Motors Co. Ltd. (1992) 2 NWLR (Pt.222) 132; University of Nigeria Teaching Hospital Management Board Vs Nnoli (1994) 8 NWLR (Pt.363) 376.” (Underlining mine) See also: Kotoye v. CBN (1989) 1 NWLR (Pt.98) 419 @ 488 C – D; Wagbatsoma v. FRN (unreported) SC.517/2015 delivered on 9/2/2018; Oyeyemi v. Owoeye (2017) LPELR – 41903 (SC) @ 56 B – E.” Per KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN ,J.S.C ( Pp. 13-14, paras. D-F ) in the case of ZENITH PLASTICS INDUSTRIES LTD v. SAMOTECH LTD (2018) LPELR-44056(SC)
6. “What is fair hearing? In Duke Vs Govt. of Cross River State & Ors (2013) 8 NWLR (Pt.1356) 347 @ 366 C it was held by this Court as follows: ‘The term ‘fair hearing’ within the context of Section 36 (1) of the 1999 Constitution, is that a trial ought to be conducted in accordance with all the legal norms designed to ensure that justice is done at all cost to all parties. The principle of fair hearing is that both sides must be given an opportunity to present their respective cases. It implies that each side has the right to know what case is being made against it and given ample opportunity to react or respond thereto.” Per KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN ,J.S.C ( Pp. 11-13, paras. C-D ) in the case of ZENITH PLASTICS INDUSTRIES LTD v. SAMOTECH LTD (2018) LPELR-44056(SC)
7. ’’The simple approach is to look at the totality of the proceedings before the Court and then form an opinion on objective standards whether or not an equal opportunity has been afforded to parties to fully ventilate their grievances before a Court…. The very essence of fair hearing under Section 36 of the Constitution of the Federal Republic of Nigeria 1999 is a hearing which is fair to both parties to the suit; be they plaintiffs or defendants or prosecution or defence. The section does not contemplate a standard of justice which is biased in favour of one party and to the prejudice of the other. Rather, it imposes an ambidextrous standard of justice in which the court must be fair to both sides of the conflict. The hearing must be fair and in accordance with the twin pillars of justice, read as pillars of justice, namely audi alteram partem and nemo judex in causa sua per Onu J.S.C. at 421. See also Ndu v. State (1990) 11-12 S.C. 122; 7 NWLR (pt.164) 550. A party who will be affected by result of a Judicial inquiry must be given an opportunity of being heard, Otherwise, the action taken following the inquiry will be Unconstitutional and illegal. See Ogundoyin v. Adeyemi (2001) 7 S.C. (pt.11) 98; (2001) 13 NWLR (Pt. 730) 403 at 423 per Onu J.S.C. See also Atanda v. State (1988) 3 NWLR (pt. 85) 681.” Per GEORGE ADESOLA OGUNTADE ,J.S.C ( P. 27-28, paras. A-E ) in the case of PAM & ANOR v. MOHAMMED & ANOR (2008) LPELR-2895(SC)
8. “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. The fundamental basis underlying the principle of Fair Hearing is the doctrine of audi alteram partem which means to hear the other side. See ASTO v. Quorum Consortium Ltd (2004) 1 NWLR (Pt. 855) 601. See also Ogundoyin v. Adeyemi (2001) 7 S.C. (Pt.II) 98; (2001) 13 NWLR (Pt. 730) 403. Fair hearing, in other words, involves situations where, having regard to all the circumstances of a case, the hearing may be said to have been conducted in such a manner that an impartial observer will conclude that the Court was fair to all the parties in the proceedings. See Somai Sonka Co. Nig. Ltd. v. Adzege (2001) 9 NWLR (Pt. 718) 312. The reasonable person and the impartial observer mean the same. They mean a complete stranger, an unbiased person to the proceedings.” Per NIKI TOBI ,J.S.C ( Pp. 58-59, para. A) in the case of PAM & ANOR v. MOHAMMED & ANOR (2008) LPELR-2895(SC)
9. “A trial Judge has a legal duty to create an environment for fair hearing and not a caricature or make do of it. He must be seen by an appellate Court to have obeyed the fair hearing provision in Section 36 of the 1999 Constitution to the letters of the alphabet. He cannot be miserly with his apportionment of time to the parties in the hearing of the case. He cannot be over generous with the Court’s time too, to the extent that the hearing of the case is unusually delayed. The Judge as a man and master of discretion has to exercise that discretion judicially and judiciously. As long as he does that, an appellate Court will not intervene.” (DISSENTING) Per NIKI TOBI ,J.S.C ( Pp. 80-81, paras. F-A) in the case of PAM & ANOR v. MOHAMMED & ANOR (2008) LPELR-2895(SC)

My authorities are:

1. Section 36 of the Constitution of Federal Republic of Nigeria, 1999.
2. The judgment of the Supreme Court of Nigeria in the case of PAM & ANOR v. MOHAMMED & ANOR (2008) LPELR-2895(SC)
3. The judgment of the Supreme Court of Nigeria in the case ofZENITH PLASTICS INDUSTRIES LTD v. SAMOTECH LTD (2018) LPELR-44056(SC)
4. The judgment of the Supreme Court of Nigeria in the case ofEGBUCHU v. CONTINENTAL MERCHANT BANK PLC & ORS (2016) LPELR-40053(SC)
5. The judgement of the Court of Appeal in the case of ABIA STATE TRANSPORT CORPORATION & ORS v. QUORUM CONSORTIUM LTD (2002) LPELR-10491(CA)
6. The judgement of the Court of Appeal in the case of IFEKAUDU v. IBEAGWA (2012) LPELR-14436(CA)

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