By Ebun-Olu Adegboruwa, SAN
The Guides for Courts or Tribunals to Ensure Fair Hearing:
In a judicial or quasi-judicial body, a hearing, in order to be fair, must include the right of the person to be affected:
(a) to be present all through the proceedings and hear all the evidence against him;
(b) to cross-examine or otherwise confront or contradict all the witnesses that testify against him;
(c) to have read before him all the documents tendered in evidence at the hearing;
(d) 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;
(e) to know the case he has to meet at the hearing and have adequate opportunity to prepare for his defence; and
(f) to give evidence by himself, call witnesses if he likes, and make oral submissions either personally or through a counsel of his choice.
In the instant case, from the hearing of the counter-claim till the judgment thereof, the respondent was not present to hear the evidence against him, cross-examine the appellant’s witnesses, give evidence by himself or field a witness(es), and to address the trial court either personally or through counsel. By the glaring absence of service of hearing notice on the respondent on none of the dates the proceeding of the trial court was conducted in respect of the counter-claim, the ensuing decision therefrom curtailed and eroded the appellant’s sacrosanct right to fair hearing as enshrined in the sacrosanct provision of section 36 of the Constitution, as amended, the fons et origo of all laws. Put simply, the respondent discharged the burden to prove a denial of fair hearing which the law has cast on him.
The Need for Justice to be Manifestly Seen to be Done:
In the determination of legal rights of parties, justice must not only be done but must be manifestly and undoubtedly seen to be done. In the instant case, the trial court’s proceeding, which was conducted under the umbrella of purported default proceeding, treated the principle of fair hearing with disdain and contempt.
The Effect of Breach of Right to Fair Hearing:
A proof of breach of right to fair hearing, as in the instant case, carries with it a miscarriage of justice. Put differently, a miscarriage of justice is inherent in a breach of a right to fair hearing.
The Effect of Breach of Right to Fair Hearing:
Where a party’s inviolable right to fair hearing is flouted, as in the instant case, no matter the quantum of fair-mindedness, dexterity, artistry and objectivity injected into the proceeding hosting the breach, it will be a nullity. Once there is violation of fair hearing, the proceeding no matter how well conducted, it is a nullity. This is a confluence point where want of fair hearing and jurisdiction embrace themselves to vitiate proceedings that give birth to a denial of fair hearing.
The Denotation and Effect of Nullity and How Treated by Court:
Nullity denotes nothing; no proceeding; an act or proceeding in a case which the opposite party may treat as though it had not taken place; or which has absolutely no legal force or effect. Nullity bears the stigma of corrosive consequence in law. If a decision or proceeding is smeared with a tinge of nullity, it is void and taken as if it was never given or made. A null decision or proceeding does not confer enforceable right on its beneficiary party, who is armed with it, nor does it impose any obligations on its victim party. The bounden duty of a court is to set aside a null decision in that it has no life in law.
Whether a Party is Required to Prove Damages or Losses as a Result of Breach of Right to Fair Hearing:
The law does not require a party to prove damages or losses he incurred consequent upon a breach of his right to fair hearing.
The Proper Order on Appeal Once There is a Denial of Right to Fair Hearing:
Once there is a denial of the right to fair hearing as engraved in section 36(1) of the 1999 Constitution (as amended), the only order that could be made on appeal is one for re-trial or re-hearing. This is to enable the appellant to be properly heard. In the instant case, the Court of Appeal’s decision was in total alignment with the tenets of our corpus juris, especially the provision of Order 24 rule 14 of High Court of Anambra State (Civil Procedure) Rules, 1988.
Per OGBUINYA, J.S.C. at page 470, paras. E-G:
“It stems from the foregoing juridical survey on the essentiality of service of hearing notice, conducted in due consultation with the law, that the trial court’s decision, delivered on the 20th January, 2004, was mired in the quicksand of nullity with the toxic consequence attendant thereto. In so far as the decision was marooned in the murky ocean of nullity, on account of unwarranted infringement of the respondent’s inalienable right to fair hearing as entrenched and guaranteed under section 36 of the Constitution, as amended, the supremo of all statutes, the lower court was entitled on the footing of the doctrine of ex debito justitiae, to mow the null decision down with its unbiased judicial sword and supplant it with a deserved accompanying order of de novo trial of the counter-claim before the trial court.”
The Effect Where an Appellate Court Orders a Hearing De Novo:
Once an appellate court intends to order, or orders for a de novo hearing, the law forbids it from treating any other issues in the appeal so as not to prejudice any point that may germinate for consideration during the rehearing proceedings.
SUGGESTED SOLUTIONS
A breach of the right to fair hearing under Section 36 of the 1999 Constitution of the Federal Republic of Nigeria automatically vitiates judicial proceedings, no matter how well-conducted. Resolving this crisis requires a multi-pronged approach combining legislative amendments, technological adaptation and systemic judicial restructuring. The right being the bedrock of criminal and civil justice, it requires adequate safeguards for its protection and enforcement. This constitutional provision codifies the common law rules of natural justice: audi alteram partem (listen to the other side) and nemo judex in causa sua (no one should be a judge in their own case).
While Section 36 is comprehensive, deep gaps exist between legal theory and the lived experiences of litigants. Strengthening this right therefore requires targeted statutory amendments, adherence to established judicial precedents, and institutional modernization. Below are some of the suggested solutions.
1. Statutory Reforms to Eliminate Delays and Gaps
The Constitution explicitly mandates that trials must be concluded “within a reasonable time” under Section 36(1) and 36(4). However, endemic systemic delays frequently violate this timeline.
THE REFORM:
State and federal legislatures must continuously update procedural laws—such as the Administration of Criminal Justice Act (ACJA) 2015—to introduce strict statutory deadlines for interlocutory appeals and judgment delivery. In several cases, the courts have underscored the fact that the denial of adequate time, or prolonged delays that fracture the presentation of a defense, strips an individual of their constitutional protection. Furthermore, when statutory timeliness is abandoned, the apex court has not hesitated to intervene to emphasize the point that a fair trial demands independence, impartiality, and efficiency, holding that a breach of these components completely nullifies the legal process, as done in the case of Osumuo v Udeaja above.
1. Curbing Executive and Administrative Overreach
Administrative bodies, panels of inquiry, and statutory corporations often breach the rule against bias (nemo judex in causa sua) when disciplining employees or regulating citizens.
THE REFORM:
Legislative frameworks governing regulatory bodies must be amended to remove adjudicatory powers from executive management. Disciplinary committees must feature completely independent legal assessors to avoid serving as both the prosecutor and the judge, because any proof of bias or lack of structural independence within an adjudicating panel invalidates the final verdict. In this regard, administrative or quasi-judicial bodies must strictly give the defendant a genuine opportunity to defend themselves before applying penalties.
1. Mandatory Legal Representation and Legal Aid Overhaul
Under Section 36 (6)(c), every citizen facing a criminal charge is entitled to legal practitioner of their choiceor state-sponsored representation if they are indigent.
THE REFORM:
The Legal Aid Act must be amended to secure aggressive statutory funding for the Legal Aid Council of Nigeria. This will expand public defense infrastructure so that poverty does not equal a denial of voice in court. In capital offenses for instance, the state is legally bound to provide legal counsel for the accused. Proceeding to try and sentence an unrepresented individual for a serious crime constitutes a fundamental, fatal breach of Section 36.
1. Institutional Digitization and Transparency
Section 36 (3) mandates that court proceedings shall be held in public. True transparency in modern adjudication requires migrating from archaic manual note-taking to digital court infrastructure.
THE REFORM:
Rules of Court across state judiciaries must formally integrate electronic court recording systems (CRSs) and institutionalize virtual hearings. This ensures that records of proceedings are accurate, unmanipulated, and readily accessible to appellate courts. The necessity of precise procedural records has been illustrated in many cases, where the appellate court set aside a lower court’s decision because it ruled on a matter without a balanced, verifiable assessment of the parties’ responses, rendering the entire trial null and void.
CONCLUSION
Part of the definitive test of a fair hearing is whether an impartial observer in the courtroom would leave with the impression that the trial was perfectly balanced and fair to both sides. Nigeria can bridge the gap between constitutional promise and reality only by embedding strict statutory timelines, preserving legal aid, separating executive bias, and fully digitizing the judiciary. There is thus a pressing need to improve the entire fabric of the system of administration of justice for effectiveness. Failure of the government to provide adequate facilities for the smooth operation of all adjudicatory institutions cannot and should not be transferred to the citizens who bear the brunt of the delays, systemic imbalances and operational inefficiencies.
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