Principles of Natural Justice and Fair Hearing in Nigerian Law

PRINCIPLES OF NATURAL JUSTICE AND FAIR HEARING
IN NIGERIAN LAW
1
ABSTRACT
Natural justice has meant different things to different peoples at different times. In its widest
sense, it was formerly used as a synonym for natural law. It has been used to mean that reasons
must be given for decisions; that a body deciding an issue must only act on evidence of probative
value. Some have asserted that the maxim “Actus non facit reum, nisi mens sit rea” is a principle
of natural. Whatever the meaning of natural justice may have been, and still is to other people,
the common law lawyers have used the term in a technical manner to mean that in certain
circumstances decisions affecting the rights of citizens must only be reached after a fair hearing
has been given to the individual concerned. On the basis of this, this research project was
designed to examine the practicability of the Principles of Natural Justice and Fair Hearing in
Nigerian Law.
2
TABLE OF CONTENTS
Content Page
Title Page i
Certification ii
Declaration iii
Dedication iv
Acknowledgement v
Abstract vi
Table of Contents vii
Table of Cases x
Table of Statutes xii
Table of Abbreviations xii
CHAPTER ONE
INTRODUCTION
1.0 Introduction 1
1.1 Background of the Study 1
1.2 Statement of Problem 3
1.3 Research Questions 5
1.4 Aims and Objective of the Study 6
1.5 Research Methodology 6
1.6 Significance of the Study 7
1.7 Scope and Limitations of the study 7
3
1.8 Synopsis 8
1.9 Definition of terms 8
CHAPTER TWO
LITERATURE REVIEW
2.0 Introduction 9
2.1 Conceptual Framework 9
2.1.1 Concept of Fairness 10
2.1.2 The Concept of Fair Hearing 11
2.1.3 Fair Hearing and Fair Trial 12

2.1.4 The Concept of Justice 15
2.2 Theoretical Framework 17
2.2.1 The Relationship between Human Law and Natural Law. 19
2.3 Literature on the subject matter 23
2.4 Criteria and Attributes of Fair Hear 35
2.5 Ex-post Facto or Retroactive Law 38
2.6 The Consequences of Breach of Fair Hearing 39
CHAPTER THREE
STATUTARY PROVISIONS FOR FAIR HEARING IN NIGERIA
3.0 Introduction 41
3.1 Fair Hearing and the Nigerian Constitution 41
3.2 Conclusion 51
CHAPTER FOUR
CHALLENGES OF FAIR HEARING IN NIGERIA
4.1 Introduction 60
4
4.2 Colonial Background of Nigerian Legal System 60
4.3 Abuse of Principles of Fair Hearing and Natural Justice by the Executives in
Nigeria 62
4.4 Abuse of the Doctrine of Natural Justice by the Judiciary 64
4.4 Abuse of Fair Hearing by the Military Administrations in Nigeria 71

4.5 Use of Retrospective Legislation by the Military Administration 74
CHAPTER FIVE
SUMMARY AND CONCLUSION RECOMMENDATIONS
5.1 Summary 77
5.2 Conclusion 78
5.3 Recommendations 80
Bibliography 81
5
TABLE OF CASES
Adekunle v The state (2006) 43 WRN 34

Akoh v. Abuh [1970] 1 WLR 937
Akpamgbo-Okadigbo v. Chidi (No. 1) (2015) 10 NWLR (Pt. 1466) 124 @ 197
Akpamgbo-Okadigbo v. Chidi (No. 1) (2015) 10 NWLR (Pt. 1466) 124 @ 197.
Anthony Nwachukwu V. The State SC.4/2005
Augustine Eda v. The Commissioner of Police (1982)NCLR 219
Augustine Maikyo v W. E. Itodo & Ors (SC. 242/2003)
Ayorinde v. Fayoyin [2001] FWLR (Pt. 75) 483 at p.500.
Canara Bank v. Debasis Das[(2003) 4 SCC 557]
Federal Civil Service Commission & Ors v. J.O. Laoye (1989) - SC NWLR (Pt.106) 652 (1989)
All N.L.R 350 (1989) 4 S.C. (Pt 11) 1
GODWIN IGABELE v. THE STATE [1988] 7 SCNJ (Pt. 2) 226 at pp. 233, 241,
Gopka v. I.G.P (1961) 1 All NLR, 423.

Hauschildt v Denmark (1989) 154 Eur Court HR (ser A) 16 [48].
Hay v. Justices, 24 Q. B. D. 561 (i8go).
K.I.Shepard v. Union of India(1987) 4 SCC 431, 448, per R.N. Misra J.
Kotoye V. Central Bank of Nigeria and 7 Others ((1989) 1 NWLR (Pt.98) 419)
Lorch, Robert Democratic Process and Administrative Law. Wayne State University Press.
(1980). 124.
Metropolitan Properties Co (FCG) Ltd v Lannon [1969] 1 QB 577, 599.
Military Governor, Imo State v. Nwauwa (1997) 2 NWLR (Pt.496) 675 at 708
Mills (2014) 14 NWLR (1428) 443, 458,
Mohammed vs. Olawunmi (1990) 2 NWLR (Pt. 133) 458.
Oged Ovunwo & Anors V Iheanyichukwu Woko & ors (2011) LPELR-SC.297/2005
Ogueri v. The State (2000) 5 WRN 227
Olugbenga Daniel v. Federal Republic of Nigeria ([2014] 8 NWLR (PART 1410) 570)
Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587
Oyegbemi v A.G of Federation &ors (1982)3 NCLR 895
R. v. Cambridge University (1723) 1 St 557
6
Re Bagg's Case (1615) (1572) 77 ER 1271
Shafiu Atiku v. The State (2002) 33 WRN 110
Union of India v. Tulsiram Patel (AIR 1958 SC 1416)
(1968) 1 ALL NLR pg 424
(1976) 4 SC. 329
(1981) 2 N.C.L.R. 459
(1981)2 NCLR 291
(1985) LPELR-SC.177/1984
(1985, 55LLJ QB, 39, Page 45)
(1988) NWLR PT 85pg 676 (SC)
(1990) 6 NWLR (Pt. 154) 98
(2 NWLR (Pt.106) 652
(2005) All FWLR (pt280)1514 at pp. 1542,
(2005)6 MJSC 1 at 17,18
(2005)All F.W.L.R (pt.280) @ pp. 1553.
(2018) LPELR-44156(CA)
(2018) LPELR-44156(CA)
(SC 166/1993) [1995] 1 (13 January 1995)
[1968] 1 All NLR 424.
[1970] 1 WLR 937
[2014] 8 NWLR (PART 1410) 570
1614) Hob 85; 80 ER 235.
1987) 1 NWLR (pt.53) 678
LIST OF STATUTES
Constitution of the Federal Republic of Nigeria 1999 (as amended 2011)
Evidence Act 2011
The Universal Declaration of Human Rights,
ABBREVIATIONS
ACJA Administration of Criminal Justice Act
7
ACJL Administration of Criminal Justice Law
AGF Attorney General of the Federation
ANLR All Nigerian Law Report
CA Court of Appeal
NWLR Nigerian Weekly Law Report
8
CHAPTER ONE
INTRODUCTION
1.0 Introduction
From time immemorial the principle of fair hearing has been considered as part of the rules
of natural justice. 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 1999
Constitution of the Federal Republic of Nigeria 2011 as amended. These requirements or
ingredients of fair-hearing/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 provided under Section 36 of the 1999 Constitution.1
The other requirements of fair-hearing are comprehensively and adequately encapsulated
in the rest of the fair-hearing clauses of the Nigerian constitution. Thus, fair-hearing is the
modern name or term for natural justice.
1.1 Background to study
The renowned Jurist Lord Denning2 famously stated that a Court of law must not only do
justice, but must be seen to have done justice and that justice is defeated, if the ordinary
man leaves the Court, thinking that the Judge was biased. Fair hearing as a concept has
been defined as a judicial or administrative hearing conducted in accordance with due
process.3
1
Section 36 CFRN 1999 as amended 2011.
2
Hauschildt v Denmark (1989) 154 Eur Court HR (ser A) 16 [48]. As Lord Denning explained in the English case of
Metropolitan Properties Co (FCG) Ltd v Lannon [1969] 1 QB 577, 599.
3
Bryan A. Garner (ed.), Black’s Law Dictionary, 9 th Edition, West Publishing Company, U.S.A,
2004. 789
9
The principles 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-judicial process. Audi alteram partem is a Latin
expression which means, hear the other party4. It is a principle of natural justice and no one
should be condemned unheard. For instance, in FEDERAL CIVIL SERVICE COMMISSION-V-
LAOYE5 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. Although 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 defense before passing judgment 6. 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 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.
The Nigerian courts have always stool tall in protection of these fundamental human rights
especially where the issue bother on denial of right of fair hearing in the determination of
rights and obligation of a citizen. This research sets out to evaluate the provisions of the
principles of fair hearing in Nigerian judicial system, its historical background, challenges
and prospects in Nigeria.
1.2 Statement of the Problem

4
NWLR (Pt.106) 652 (1989) All N.L.R 350 (1989) 4 S.C. (Pt 11) 1
5
(2 NWLR (Pt.106) 652
6
Paul Jackson: Natural Law (1973) pp. 1-2
10
Excessive abuses of human rights and pre-trial detentions occur in Nigeria, often due to the
blatant violation of the provisions of the law by the government agencies. The issue of extra
judicial execution of suspects by the Nigeria Security agencies like the DSS and the Nigerian
Police is a common experience. Prolonged detention of suspects by the police and the other
law enforcement agencies without prosecution. Refusal of the DSS and the police to comply
with bail order by the courts have also put a Nigeria society into a heavy anxiety and
suspicion. The current regime in Nigeria in the name of enforcement of corruption war
have shown severe disregard to the rule of law. The constitution of any nation is suppose to
be the basic foundation for good governance just as it defines the power and authority of
agencies of government and the manner in which the agencies interrelate as well as the
accompanying checks and balances. Amongst other things, Section 35 of the Nigerian
constitution guarantees the personal liberty of every individual and as such people should
not be subjected to arbitrary arrest or detention. Section 36 of the Constitution of the
Federal Republic of Nigeria also provides that in the determination of his rights and
obligation, including any question for determination by or against any government or
authority, a person shall be entitled to fair hearing. 7 the accused should be treated as
innocent until proven guilty. It further states that the accused must have access to legal
advice and representation, be allowed to have a public hearing in court and have the right
of appeal. The due process of law insists that the application of the law must conform to the
strict legal procedures that are predictable, reasonable, appropriate and fair. In spite of all
these provisions in the Nigeria constitution and the African regional charter, fair trial
suffers a lot of pre-trial challenges that are of serious concern in Nigeria. Detention of those
7
Section 36 (1) CFN 1999 as Amended
11
accused of offences lasts more than three years in some cases without trial. Sometimes,
trials are without the opportunity to see a lawyer. In most cases, detainees spend more
time languishing behind bars without trial well beyond the time required as punishment
for the crime when convicted. Many inmates in Nigerian prisons are pre-trial detainees.
Stakeholders in the country tend to agree that unless something concrete is done to reduce
the thousands of pre-trial detainees in Nigerian prisons, the justice system will remain an
aberration
The provisions of the Constitution Federal Republic of Nigeria in section 36 guarantees the
right of fair hearing in the determination of legal rights and obligations. Equally protected
are the right of fair trial, free access to justice and right to be represented in court by a
counsel or legal representative of ones choice. The courts has always been called upon to
interpret the position of the law or to determine whether a person has been given the
opportunity to be heard. The general impression is that these guaranteed principles of fair
hearing in our municipal laws and international conventions aptly subscribed to by the
Nigeria has totally eliminated the abuse of right of fair hearing in Nigeria. However the
recurrent experience of kangaroo justice, denial of access to justice within a reasonable, in
most cases, the rules and proceedings are thwarted by the authorities to the effect that the
interest of the authorities are projected against and above the course of natural justice and
fundamental right of the individuals. One may wonder if these laws are not strong enough
to protect the interest of the citizens. If yes, why the constant abuse of fundamental right of
fair hearing in Nigeria. This research will review the various impediments and proffer
solutions to them.
12
1.3 Research Questions
This research work will attempt to answer some of the nagging questions that relate to the
doctrine of fair hearing or fair trial in Nigerian judicial system. Therefore it is the
determination of the researcher to attempt to answer the following questions
i. What are the basic principles of the doctrine of fair hearing?

ii. How does the constitution of the Federal Republic of Nigeria guarantee this
doctrine and the right of fair hearing?
iii. How has the Nigeria Legislations applied the principles of fair hearing as
provided by international conventions on Human Rights such as The Universal
Declaration of Human Rights and The International Covenant on Civil and
Political Rights (ICCPR)
1.4 Aims and Objectives of the Study
The general objective of this research is to critically evaluate the doctrine of fair hearing
and natural justice in Nigerian and unravel their challenges. Specifically the study seeks to:
1. Explain the right to fair hearing and natural justice;
2. Trace the origin of the doctrine of fair hearing in Nigeria
3. Highlight the impediments to fair hearing in Nigeria criminal justice system;
4. Evaluate the safeguards to the application of the doctrine of fair hearing in Nigeria
Judicial system.
5. Make recommendations for the improvement of the principles of fair hearing, equity
and justice in Nigeria.
1.5 Research Methodology
This research adopted the analytical doctrinal research method, which is library oriented.
The materials used are primary documents such as legislations (legislative enactments),
13
decision of superior courts of records (case law) and secondary documents such as
discussions, analysis and criticisms made by legal luminaries in textbooks and periodicals,
articles and journals.
14
1.6 Significance of the Study
The research is aimed at evaluation of the doctrine of fair hearing in Nigeria. The study will
review the origin, applications, safeguards and impediments of the doctrine. The results of
the findings of this research will explicate the benefits, prospects and challenges of the
application of doctrine of fair hearing in Nigeria legal system. It will also serve as resource
material for scholars of both civil and criminal law. In addition the findings of this
research will serve as a veritable postscript to our law makers, administrators and other
decision makers in their efforts to enhance administration of justice equity and fairness in
the body of our municipal laws.
1.7 The Scope and Limitations of the Study
The research work will make a critical review of the doctrine of fair hearing in Nigeria. It
will evaluate the provisions of our domestic laws, the constitutional safeguards and some
international conventions on this doctrine that are been ratified by Nigeria, which form the
foundation of the principles of fair hearing in Nigeria; to look at the judicial practicability
of the doctrine of fair hearing and natural justice in Nigerian. This research also seeks to
examine the hindrances, inadequacies and bottlenecks in the administration of natural
justice or fair hearing in Nigeria criminal justice system.
1.8 Synopsis
The research is aimed at evaluating the application of the rules of fair hearing in the
Nigeria legal system. In Chapter one, the introduction, the researcher presented the
problems, research objectives, research questions and relevance and scope of the
15
research. In chapter two the researcher examined relevant literatures on the subject
matter. Efforts were made to define the operational concept as conceptual
frameworks. The naturalist and positivist theories were expanded. In chapter three,
the researcher examined some statutory provisions of fair hearing as provided or
rather guaranteed in the Nigerian Constitution. In chapter four the challenges of fair
hearing in the Nigeria legal system were examined. The work was concluded in
Chapter five with summary, conclusions and recommendations.
1.9 Definition of terms
Fair hearing A judicial or administrative hearing conducted in accordance with due
process.8
Fairness The quality of making judgments that are free from discrimination. 9
Hearing To hear and determine the cause or matter10,
CHAPTER TWO
LITERATURE REVIEW
2.0 Introduction
The researcher in this chapter examined various opinions and data on the subject matter.
In this vein, the various concepts and variables were clearly identified and defined. Also
the theoretical framework which the research was anchored upon will be explained in
8
Vocabulary.com Dictionary https://www.vocabulary.com/dictionary/fairness
9
 Vocabulary.com Dictionary https://www.vocabulary.com/dictionary/fairness
10
Akoh v. Abuh [1970] 1 WLR 937
16
other to have a better understanding of the doctrine of fair hearing and natural justice.
Other primary and secondary data include statutes, publications and case laws which
formed material contents of this chapter were also explained.
2.1 Conceptual Framework
The Doctrine of fair hearing is appropriate in the administration of criminal justice.

Various attempts have been made to explicate the meaning of fair hearing as a concept in
legal palace. The black’s law dictionary11 defined hearing as “a judicial session, usually
open to the public, held for the purpose of deciding issues of fact or law sometimes with
witnesses testifying”. Hearing include administrative setting in which an affected person
presents arguments to a decision maker12. A hearing is a proceeding before a court or other
decision-making body or officer, such as a government agency or a legislative committee. 13
A hearing is generally distinguished from a trial in that it is usually shorter and often less
formal.14 In the course of litigation, hearings are conducted as oral arguments in support of
motions, whether to resolve the case without further trial on a motion to dismiss or for summary
judgment, or to decide discrete issues of law, such as the admissibility of evidence, that will
determine how the trial proceeds. Limited evidence and testimony may also be presented in
hearings to supplement the legal arguments.15
In legislative practice, hearing means any proceeding in which legislators or their

designees receive testimonies about legislation that might be enacted. It entails the
preliminary hearing of the evidence of presenters of the bill or proposed legislation before
the legislative body.16 In the context of Administration of Justice, to hear a matter means to
listen to a matter attentively, consider and decide on it. In the case of Akoh v. Abuh17, the
Supreme Court of Nigeria held that “to hear a Cause or Matter means to hear and determine
11
Bryan A. Garner (ed.), Black’s Law Dictionary, 9th Edition, West Publishing Company, U.S.A, 2004. 788
12
ibid
13
Lorch, Robert Democratic Process and Administrative Law. Wayne State University Press. (1980). 124.
14
ibid
15
ibid
16
ibid
17
[1970] 1 WLR 937
17
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.18
2.1.1 Fairness
Fairness has been defined as the quality of making judgments that are free from
discrimination.19 Fairness comes from the Old English word, fæger, meaning "pleasing or
attractive."20 The word is also used to describe physical beauty. Fairness can refer to
someone's good looks, or if someone is very pale and blond, you might notice the fairness
of her complexion. When someone shows fairness in making a decision, he is pleasing all
parties involved and offering a solution that is attractive to everyone.
Fairness has also been expressed in other terms as appropriateness, balance,
disinterestedness, dispassionateness, equality, equitable treatment, equitableness, equity,
evenhanded justice, evenhandedness, fair-mindedness, fair play, fair treatment, honesty,
impartiality, integrity, iustitia, just dealing, justness, lack of corruption, lack of prejudice,
open-mindedness, probity, reasonableness, rectitude, right, rightfulness, rightness,
scrupulousness, unbiasedness, uprightness.21
2.1.2 The Concept of Fair Hearing
The concept Fair hearing has been defined by the Blacks Law Dictionary as a judicial or
administrative hearing conducted in accordance with due process. 22 In Ezechukwu V.
Onwuka23 the Court of Appeal stated that
Fair hearing is a hearing which is fair to all parties to the suit, whether the
plaintiff, defendant, the prosecutor or the defense. It is a doctrine of substance
hearing, rather…whether a party entitled to be heard has been given an
18
ibid
19
 Vocabulary.com Dictionary https://www.vocabulary.com/dictionary/fairness
20
Ibid.
21
The Free online Dictionary https://legal-dictionary.thefreedictionary.com/fairness
22
23
(2005) All FWLR (pt280)1514 at pp. 1542,
18
opportunity of being heard… Fair hearing entails doing during the course of a
trial, all that will make an impartial observer believe that trial has been
balanced…to both sides.
Kenneth Culp Davis24 emphasized that “The terms "hearing" and "opportunity to be heard"
probably convey the same core of meaning to most minds, but their fringe of uncertainty is
wide”. He believe that when either judges or legislatures use the term "opportunity to be
heard" they have in mind one of two ideas: (1) a chance to present argument at a public meeting,
or (2) opportunity for a trial resembling that of the courtroom.”25
In the context of Administration of Justice, to hear a Matter means to listen to a Matter attentively, consider and
decide on it.26 In the case of Akoh v. Abuh,27 the Supreme Court of Nigeria held that to hear a Cause or Matter
means to hear and determine 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.
2.1.3 Fair Hearing and Fair Trial
Fair hearing is synonymous with fair trial or natural justice and implies that every
reasonable and fair-minded observer who watches the proceedings shall be able to
conclude that the court has been fair to all the parties concerned. 28 A trial which is
observed by trial judge without being partial is a fair trial. Various rights associated with a
fair trial are explicitly proclaimed in The Universal Declaration of Human Rights, 29 The
International Convention on Civil and People Rights 30 and the 1999 constitution of the Federal
24
KENNETH CULP DAVIS The Requirement Of Opportunity To Be Heard In The Administrative Process. The Yale
Law Journal Vol. 51. p 1093
25
KENNETH CULP DAVIS The Requirement Of Opportunity To Be Heard In The Administrative Process. The Yale
Law Journal Vol. 51. p 1093
26
Nwagbara, Chigozie The Role Of Fair Hearing In The Dispensation Of Justice In Nigeria - A Legal Perspective.
International Journal of Innovative Legal & Political Studies 4(4):1-10, Oct.-Dec. 2016 pg 2.
27
(1988) NWLR PT 85pg 676 (SC)
28
Akpambang, E M Fair Hearing: Sine Qua Non Under Nigerian Criminal Justice Jurisprudence Journal of Law,
Policy and Globalization www.iiste.org ISSN 2224-3240 (Paper) ISSN 2224-3259 Vol.52, 2016 (Online)
accessed on 2nd February, 2020.
29
Article 10 of the Universal Declaration of Human Rights,
30
article 14 of ICCPR
19
Republic Nigeria.31 Commenting on the relationship between fair hearing and fair trial, the
Supreme Court in Mohammed v. Kano Native Authority32 noted that although it has been
suggested that a fair hearing did not amount to a fair trial, yet that the court was of the firm
view that “fair hearing must involve a fair trial, and a fair trial of a case consists of the
whole hearing.”33
It was reiterated in Augustine Maikyo v. W. E. Itodo & Ors34 that ‘a hearing can only be fair
when all the Parties to a dispute are given an opportunity to be heard.’ If one of the Parties
is not given an opportunity to be heard, the hearing cannot qualify as a fair hearing. 35 The
concept of Fair hearing postulates a hearing in which the authority is fairly exercised, that
is, consistent with the fundamental principles of justice embraced within the concept of the
Due Process of Law.36 Contemplated in fair hearing is the right to present evidence, to cross
examine and to have findings supported by evidence. Thus, it implies that both sides be
given an opportunity to present their respective cases, and that each side is entitled to
know that a case is being made against it and be given an opportunity to reply thereto. 37
The right to a fair trial and a fair hearing applies to both criminal and civil proceedings and
in cases before both courts and tribunals. It also applies to military disciplinary hearings.
The right is concerned with procedural fairness, rather than with the substantive decision
of the court or tribunal.
31
Section 36 1999 CFRN as amended 2011.
32
[1968] 1 All NLR 424.
33
Ibid, at p.426.
34
Augustine Maikyo v W. E. Itodo & Ors (SC. 242/2003)
35
Ibid.
36
NWAGBARA C, The Role Of Fair Hearing In The Dispensation Of Justice In Nigeria - A Legal Perspective
International Journal of Innovative Legal & Political Studies 4(4):1-10, Oct.-Dec. 2016 www.seahipaj.org
accessed on 11/11/2019.
37
Olugbenga Daniel v. Federal Republic of Nigeria ([2014] 8 NWLR (PART 1410) 570)
20
It has been noted that the essential attributes and basic criteria of fair hearing include inter
alia: 38
i. that the court or tribunal shall hear both sides not only in the case, but also in 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 held in public and all concerned shall have access to and be
informed of such a place of public hearing;39 and
iv. that having regard to all the circumstances, in every material decision in the case, justice
must not only be done but manifestly and undoubtedly be seen to have been done. 40
The Apex court held in the cases of Access Bank Plc v. Edo State Board of Internal
Revenue41 that
"The Constitutional provision for fair hearing mainly stems or germinates from
two common law principles of natural justice. They are audi alteram partem and
nemo judex in causa sua. The meaning of the Latinism is, hear the other party;
hear both sides. No man should be condemned unheard. What the rule or
doctrine of fair hearing means is that the parties must be given equal
opportunity to present their case to the Court and no party should be given more
opportunity or advantage in the presentation of his case." See also INAKOJU VS.
ADELEKE (2007) 4 NWLR (PT. 1025) 423.
On Whether fair hearing connotes a fair trial and the effect of breach of fair hearing it was
held Per ADEKEYE, J.S.C in Oged Ovunwo & ors v Iheanyichukwu Woko and Ors 42 that:
38
Onome Erhabor J. Concept of Fair Hearing- hhtpindependent.accademia.edu/erhaboronome.htm accessed
12/10/2019.
39
Constitution of the Federal republic of Nigeria, 1999, Section 36(4)
40
Enobong Mbang Akpambang Fair Hearing: Sine Qua Non Under Nigerian Criminal Justice Jurisprudence
Journal of Law, Policy and Globalization (online) Vol.52, 2016 pg 35
41
(2018) LPELR-44156(CA)
42
(2011) LPELR-SC.297/2005
21
“The right to fair hearing is a very essential right for a person to secure justice.
A fair hearing connotes or involves a far trial and a fair trial of a case consists
of the whole hearing. … where the person alleging breach of fair heading has
established it, it follows that a breach of fair hearing in trials vitiates such
proceedings rendering same null and void."43
In Kotoye V. Central Bank of Nigeria and 7 Others44 the Supreme Court held that
fair hearing anticipated by Constitution implies that every reasonable and
fair minded observer who watches the proceedings should be able to come to
the conclusion that the court or other tribunal has been fair to all the parties
concerned. In Mohammed V. Kano N. A.45
The apex court gave the following basic criteria and attributes of fair hearing which
should include the followings:46
(a) That the court or tribunal shall hear both sides not only in the case but also in all
material issues in the case before reaching a decision which may be prejudicial to any party
in the case;
(b) That the court or tribunal shall give equal treatment, opportunity and consideration to
all concerned. See Adigun V. A.G. of Oyo State47;
(c) That the proceedings shall be heard in public and all concerned shall have access to and
be informed of such a place of public hearing; and
(d) That having regard to all the circumstances in every material decision in the case,
justice must not only be done but must be manifestly and undoubtedly seen to have been
done. See Deduwa V. Okorodudu48
2.1.4 The Concept of Justice
43
Ibid., see also R. v. Cambridge University (1723) 1 St 557
44
((1989) 1 NWLR (Pt.98) 419)
45
(1968) 1 ALL NLR pg 424
46
CONSTITUTIONAL LAW II LAW 244 NOUN P. 56-57
47
(1987) 1 NWLR (pt.53) 678
48
(1976) 4 SC. 329
22
In the realm of law one of the difficult concepts to define and describe is ‘justice’. Though
justice is the end of the law, if one may answer these questions; what is justice? The word
justice has no meaning of universal acceptance. This difficulty arises mainly because the
concept of justice is based on numerous aspects and many differing viewpoints and
perspectives including the concepts of moral correctness based on law, equity, ethics,
culture, rationality, religion, and fairness.
Numerous theories are propounded to explain what justice is? viz. (a) Divine command
theory (that is to say, what is justice is commanded by God through the Holy Scriptures like
the Bible, the Koran and the Gita etcetera.) (b) Natural Law theorists see Justice as a pure
reason unaffected by self-interest and prejudices. Justice requires according to individuals or
groups what they actually deserve, merit, or are entitled to. (c) Social contract theory (this
tradition argued that justice is derived from the mutual agreement of everyone concerned)
(d) Distributive theory (justice is all about proper distribution of rights, wealth, power,
status and liabilities). Apart from these above mentioned theories there are many other
theories explaining meaning and significance of ‘justice’. However, to date, no theory
embraces all core elements of ‘justice’, and there seems to be an attempt at explaining an
elephant by its tail. Consequently, no theory completely uncovers all the facets of ‘justice’.
Shivaraj Huchhanavar identified two notions of justice. First, According to Kelsen “the
longing for justice is men's eternal longing for happiness. To Kelvin, it is happiness that
man cannot find alone, as an isolated individual and hence seeks in society. Justice is social
happiness guaranteed by social order.” 49
49
Shivaraj S. Huchhanavar Introduction to Natural law
https://www.researchgate.net/publication/301770215 accessed on 21/11/2019
23
Second, the seminal contributions to legal knowledge were made by John Rawls who sets
out two basic principles of justice which the legal order should satisfy. They are:
(i) Each person is to have an equal right to the most extensive basic liberty compatible with
a similar liberty for others;
(ii) Social and economic inequalities are to be arranged so that
(iii) (a) they are to be of the greatest benefit to the least-advantaged members of society,
consistent with the just savings principle (the difference principle).
(b) offices and positions must be open to everyone under conditions of fair equality of
opportunity. 50
In general, ‘justice’ means and includes inter-alia, (i) that there shall be fair and equitable
treatment of all individuals under the law (ii) Fairness in protecting rights and in punishing
deviant actions/omissions (iii) to render every man his due (iv) everyone’s life and
property should be protected by law, (v) fair and equitable distribution of liberties and
liabilities, (vi) harmonization of social and political interest of an individual without
compromising with capabilities of future generation to reach higher levels in individual,
associational, national and international spheres.
2.2 Theoretical Framework
The researcher relied on both Positive law theory and the Natural law theory. The Natural
law theorists believed on the morality of law. What law ought to be against the positivists
who see law as what is and not what it ought to be. With this theory, actions in conformity
and support of natural laws are morally correct. A simple summary would be, in this view
50
https://www.researchgate.net/publication/301770215 accessed on 21/11/2019. Supra
24
humans have reasoning and the Laws of Nature are discernable by human reason. Thus,
humans are morally obliged to use their reasoning to discern what the laws are and then to
act in conformity with them.
Humans have a natural drive to eat, drink, sleep and procreate. These actions are in accord
with a natural law for species to survive and procreate. Thus activities in conformity with
such a law are morally good. Activities that work against that law are morally wrong. As
an example consider that to eat too much or too little and place life in jeopardy is morally
wrong.
Human nature (it is human nature to which natural law is natural; the laws of nature to
which Aquinas refers derive from human nature) is free and rational. As free and rational
beings, the human will can be moved to act only by reasons. Accordingly, since rational
beings are naturally disposed to pursue the good, the first precept of natural law is to
pursue what is good and avoid what is bad. All other precepts of natural law can be
derived from this foundation.51
In Aquinas’s view,52 there are three kinds of good that human nature pursues: 1) those
goods that a human being shares with all other substances, such as, for example, the
preservation of his or her being in accordance with his or her nature; 2) more specific
goods that a human being shares with other members of the animal community, such as the
desire to mate; and 3) goods that are valued because of a human being’s capacity for
51
Natural Law Theory http://cstl-cla.semo.edu/hhill/ui305/natural%20law.htm accessed on 20/7/2019.
52
Ibid.
25
rationality, such as a desire to find out the truth about God and morality and the desire to
live in society.53
According to Natural law legal theory, the authority of legal standards necessarily derives,
at least in part, from considerations having to do with the moral merit of those standards.
There are a number of different kinds of natural law legal theories, differing from each
other with respect to the roles morality plays in determining the authority of legal norms.
The conceptual jurisprudence of John Austin provides a set of necessary and sufficient
conditions for the existence of law that distinguishes law from non-law in every possible
world. Classical Natural Law Theory such as the theory of Thomas Aquinas54 focuses on the
overlap between natural law moral and legal theories. Similarly, the neo-naturalism of John
Finnis is a development of classical natural law theory. In contrast, the procedural
naturalism of Lon L. Fuller is a rejection of the conceptual naturalist idea that there are
necessary substantive moral constraints on the content of law. Lastly, Ronald Dworkin’s
theory is a response and critique of legal positivism. All of these theories subscribe to one or
more basic tenets of natural law legal theory and are important to its development and
influence.55
2.2.1 The Relationship between Human Law and Natural Law.
Here’s the way Aquinas describes it: “As Augustine says, ‘that which is not just seems to be
no law at all’; wherefore the force of a law depends on the extent of its justice. Now, in human
affairs a thing is said to be just from being right according to the rule of reason. But the first
53
Ibid.
54
Kenneth Einar Himma Natural Law IEP https://www.iep.utm.edu/natlaw/ accessed on 20/7/2019.
55
ibid
26
rule of reason is the law of nature, as is clear from what has been stated above.
Consequently, every human law has just so much of the nature of law and it is derived
from the law of nature. But if, in any point, it deflects from the law of nature, it is no
longer a law but a perversion of law.”56 (Emphasis mine).
As Blackstone puts the point: “This law of nature, being co-oval with mankind and dictated
by God himself, is of course superior in obligation to any other. It is binding over all the globe,
in all countries, and at all times: no human laws are of any validity, if contrary to this; and
such of them as are valid derive all their force, and all their authority, mediately or
immediately, from this original.” 57
Richard Darroch58 explained that Legal positivism is a philosophy of law proposing that a
law is valid simply by virtue of the fact that it has been approved by a legally constituted
authority. In other words, whether some might argue that the law is unfair or unjust based
upon moral or ethical arguments is not material to the consideration of its inherent
validity. The fact that it has been promulgated by the sovereign authority is sufficient in
itself to confirm its validity. According to the positivists then, a repressive law is still a law
irrespective of whether it is “right”, “fair” or “desirable” by the subjects/people or not. It
is the product of a logical and entirely rational, fact-based process occurring in a moral
vacuum. Thus, the positivists would argue that Hitler’s laws regarding the treatment of the
Jews may be highly distasteful and contrary to any standard of morality, but they remain
valid as they were developed and approved by the legally constituted government.
56
Ibid.
57
Natural Law Theory http://cstl-cla.semo.edu/hhill/ui305/natural%20law.htm op.cit
58
https://www.quora.com/What-is-the-difference-between-legal-positivism-and-natural-law accessed
20/7/2019.
27
Positivists make no claim that such laws ought to be obeyed. They simply argue that this is
a debate separate from the legislative process.
In jurisprudence, natural law can refer to the several doctrines
 That just laws are immanent in nature; that is, they can be "discovered" or "found"
but not "created" by such things as a bill of rights;
 That they can emerge by the natural process of resolving conflicts, as embodied by
the evolutionary process of the common law; or
 That the meaning of law is such that it’s content cannot be determined except by
reference to moral principles. These meanings can either oppose or complement
each other, although they share the common trait that they rely on inherence as
opposed to design in finding just laws.
Whereas legal positivism would say that a law can be unjust without it being any less a law,
natural law jurisprudence would say that there is something legally deficient about an
unjust norm. Legal interpretivism, famously defended in the English-speaking world by
Ronald Dworkin, claims to have a position different from both natural law and positivism.
Besides utilitarianism and Kantianism, natural law jurisprudence has in common with
virtue ethics that it is a live option for a first principles ethics theory in analytic
philosophy.59
Natural law, on the other side, proposes that, to be valid, laws should derive from certain
fundamental moral premises that are generally accepted as the foundation of proper
relations between people in a just society. Thus, a law that contravenes those moral
principles is unjust and contrary to the needs of a peaceful and well-ordered society. For
59
https://en.wikipedia.org/wiki/Natural_law op. cit. accessed on 20/7/2019.
28
example, the preamble to the US Declaration of Independence clearly expresses the link
between law and morality. “We hold these truths to be self-evident” presupposes that
consequential laws are founded on moral principles such as the essential equality of all
men and their “right” to “life, liberty and the pursuit of happiness”.
These two philosophies are not entirely contradictory. They in so many cases complement
one another. The positivists, for example, would not dispute the validity of laws that spring
from a moral precept, as long as they are constructed and promulgated by the sovereign
power. They merely oppose conflating what are essentially subjective moral or ethical
principles with the process of developing and promulgating a law.
This theory is relevant in this study because it is therefore obvious that the essence of the
of provisions of Sections 36 (1) – (12) of the Constitution of the Federal Republic of Nigeria
1999 is to promote and secure the inherent right provided by law of nature and to
guarantee that these rights are not to be taken away by any person or institution. The state
ensured these rights are secured in the constitution (a positive enactment) to regulate the
conduct of investigation, prosecution and execution of the criminal justice. The act
combined both the principles of positive law and natural law. Therefore positive law has
been deployed to complement the requirement of fair hearing in Nigeria justice system.
2.3 Literature on the Subject Matter
In the recent case of Adewunmi V. Nigerian Eagle Flour, 60 Dongban-Mensem, JCA, Stated
that,
“A procedure where an accuser is shielded from the accused all through the
inquiry is certainly not one in compliance with natural justice. Presence and
60
Mills (2014) 14 NWLR (1428) 443, 458,
29
direct confrontation has a lot of impact……” It has also been held that, “…….
fair hearing in the context of Section 36(1) of the 1999 Constitution
encompasses fair hearing in the narrow technical sense of the twin pillar of
justice, that is 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“. See Etim V. Registered Trustees of Presbyterian Church of
Nigeria (2004) 11 NWLR (883) 79, 92.” PER J.E. EKANEM J.C.A
The principle of fair hearing as enshrined in the 1999 Constitution is often illustrated by the
“twin pillar of justice” expressed in the Latin maxims: nemo judex in causa sua and audi
alterem partem.
In this regard, it is submitted that these principles expressed in these Latin maxims are an
integral and inseparable part of the fair hearing provision guaranteed by section 36(1) of
the 1999 Constitution. The fact being that the rule of fair hearing is not a technical doctrine.
It is one of substance as it overrides all contrary provisions in any law of the land, be it
substantive or adjectival. A breach of the doctrine of fair hearing in a judicial enquiry
renders the action unconstitutional, illegal and liable to be set aside. “Fair-hearing is a
fundamental constitutional right as entrenched in the 1999 constitution as amended. And the
breach of fair-hearing in any proceedings without more vitiates such proceedings in their
entirety; it renders the entire proceedings null and void “61
The Supreme Court in ACCESS BANK PLC v. EDO STATE BOARD OF INTERNAL REVENUE 62
further held that
"…. the principle of or doctrine of fair hearing in its statutory and

constitutional form is derived from the principle of natural justice under
the twin pillars of audi alteram partem and nemo judex in causa sua.
The principle of fair hearing is fundamental to the administration of
justice as enshrined under Section 36 of the 1999 Constitution (as
amended). It hinges on the conduct of a hearing which is fair to both
parties to the suit and without bias or partiality in favour or against
either of them who will thereby be prejudiced.
61
(2011) LPELR-SC.297/2005
62
(2018) LPELR-44156(CA)
30
Meaning And Evolution Of Natural Justice
Justice is of two types namely Legal Justice and Natural Justice. Legal justice refers to justice
governed by the law of the state and natural justice refers to moral justice and is governed
by the Laws of Equity. Justice done to one should not seem injustice to another. So the
goodness of a law is in maximizing the pleasure of the beneficiaries with minimized pain to
the others.63 This concept has its origins in the English law and reflects the close connection
between Common law and moral principles. The expressions natural justice and legal justice
do not present a watertight classification. It is the substance of justice which is to be
secured by both, and whenever legal justice fails to achieve this purpose, natural justice is
called in aid of legal justice.
Rules of natural justice have developed with the growth of civilisation, and the
content thereof is often considered as a proper measure of the level of civilisation and rule
of law prevailing in the community.64
According to Aristotle, law inspired by reason is the natural law and whenever the
general preposition of legal law is found to work hardship to a particular case, equity must
be applied to mitigate and rectify the harshness. It’s the natural law that provides the
framework of principles and it is left to the legal law to supply flesh and blood to the legal
system. The underlying object of natural justice is not only to secure justice, but also to
prevent miscarriage of justice, thus ensuring that fundamental liberties and rights of
citizens are well-protected.65
Principles of natural justice constitute one of the most important concepts of

administrative law. The expression ‘natural justice’ has been interpreted to cover several
rules of equity and fair play and is sometimes also referred to as ‘substantial justice’,
‘universal justice’ and ‘fair play in action’.
63
Alexander T C, “Principles of Natural justice”
https://www.academia.edu/8782381/Trace_the_development_of_natural_justice_connect_it_with_legal_j
ustice_in_the_courts_of_law_and_administrative_agencies accessed on 12/3/2020.
64
K.I.Shepard v. Union of India(1987) 4 SCC 431, 448, per R.N. Misra J.
65
H. D. Pithawalla, “Administrative Law” 79 (C. Jamnadas & Co., Mumbai, 1 st edn., 2012)
31
In order to protect himself against the excesses of organised power, man has always
appealed to someone beyond his own creation. Such someone could only be God and His
laws, divine law or natural law, to which all temporal laws and actions must conform. This
is the origin of the concept of natural justice. However, natural justice is not justice of the
nature where the lion devours the lamb and the tiger feeds upon the antelope. Natural
justice is of the “higher law of nature” or “natural law” where the lion and the lamb lie down
together and the tiger frisks with the antelope. Its essence is good conscience in a given
situation; nothing more and nothing less.66i
Rules of natural justice are not codified canon. They are principles ingrained in the
conscience of man. Justice is based substantially on natural ideas and values which are
universal. What particular form of natural justice should be implied and what its extent
should be in a given case must depend to a great extent on the facts and circumstances of
that case and the framework of the statute under which an action is taken. 67
Earliest expression of natural justice could be found in philosophical expression of

roman jurists (jus naturale) and signified rules and principles for the conduct of man,
which were independent of enacted law or customs and could be discovered by the rational
intelligence of man and would grow out of and conform to his nature – which meant the
whole mental, moral and physical constitution of man. The basis of the principles of natural
justice is rule of law. The observance of these principles is demanded by our sense of
justice to which the total system of governance must conform.
Origin of Doctrine of Natural Justice and Fair Hearing in Criminal Justice
The Principles of natural justice and fair hearing were accepted as early as in the days of
Adam and of Eve the first human being that lived in the Earth. According to the Bible
history, when Adam & Eve ate the fruit of knowledge, which was forbidden by God, the
latter did not pass sentence on Adam before he was called upon to defend himself. Same
66
67
Canara Bank v. Debasis Das[(2003) 4 SCC 557]
32
thing was repeated in case of Eve. Later on, the principle of natural justice was adopted by
English Jurist to be so fundamental as to over-ride all laws.68
Shivashk has noted that the word ‘Natural Justice’ manifests justice according to one’s own
conscience. It is derived from the Roman Concept ‘jus - naturale’ and ‘Lex naturale’ which
meant principle of natural law, natural justice, eternal law, natural equity or good
conscience69. Lord Evershed, in Vionet v. Barrett70 remarked, “Natural Justice is the
natural sense of what is right and wrong.” But Natural justice has meant different things to
different peoples at different times. In its widest sense, it was formerly used as a synonym
for natural law. It has been used to mean that reasons must be given for decisions; that a
body deciding an issue must only act on evidence of probative value. 71
It is almost impossible to formulate the concept of fair trial exhaustively, or to assert a
universally accepted definition due to extensive case-law of various national and
international judicial instances, different legal traditions and abundance of academic
literature on the issue. Although the concept first appeared in Article 10 of the Universal
Declaration of Human Rights72 of the UN in 1948 as “right to fair hearing”, today the
meaning has become more wider than initially introduced.
68
Ibid.
69
Shivashk Origin and Development of Principles of Natural Justice.
http://www.legalservicesindia.com/article/1528/Origin-and-Development-of-Principles-of-Natural-
Justice.html accessed on 1st November, 2019.
70
(1985, 55LLJ QB, 39, Page 45)
71
Ibid.
72
33
Some years after the UDHR was adopted, the right to a fair hearing was defined in more
detail in the International Covenant on Civil and Political Rights (ICCPR). The right to a fair
trial is protected in Articles 14 and 16 of the ICCPR which is binding in international law on
those states that are party to it. Article 14(1) establishes the basic right to a fair trial, Article
14(2) provides for the presumption of innocence, and Article 14(3) sets out a list of
minimum fair trial rights in criminal proceedings. Article 14(5) establishes the right of a
convicted person to have a higher court review the conviction or sentence, and Article
14(7) prohibits double jeopardy.
Article 14(1) states that:
"All persons shall be equal before the courts and tribunals. In the determination
of any criminal charge against him, or of his rights and obligations in a suit at
law, everyone shall be entitled to a fair and public hearing by a competent,
independent and impartial tribunal established by law. The press and the
public may be excluded from all or part of a trial for reasons of morals, public
order or national security in a democratic society, or when the interest of the
private lives of the parties so requires, or to the extent strictly necessary in the
opinion of the court in special circumstances where publicity would prejudice
the interests of justice; but any judgement rendered in a criminal case or in a
suit at law shall be made public except where the interest of juvenile persons
otherwise requires or the proceedings concern matrimonial disputes or the
guardianship of children.73
Principles of Natural Justice
The principles of natural justice were derived from the Romans who believed that some
legal principles were “natural” or self-evident and did not require a statutory basis. This
principle is therefore hinged on two maxims known as the twin pillars of justice. These are:
a) audi alteram partem (hear both parties)
b). Nemo judex in causa sua (no one should be a judge in his own case).
73
Alfredsson, Gudmundur; Eide, Asbjorn (1999). The Universal Declaration of Human Rights: a common
standard of achievement. Martinus Nijhoff Publishers. pp. 225–226.
34
Audi Alterem Partem –A Historical Perspective
The rules of procedural fairness, as rules of natural justice were derived from natural law as
is demonstrated by English cases of the seventeenth and eighteenth centuries.
Chief Justice Coke, who played a leading role in its exposition and the development of the
remedy of mandamus where it had been breached, inferred it from the provision of the
Magna Carta that: No free man shall be taken or imprisoned ruined or diseased or
outlawed or exiled or in any way ruined, nor will we go or send against him, except by the
lawful judgment of his peers or by the law of the land.
It was in Bagg's Case (1615)74 audi alteram partem was considered in length. The case
concerned a municipal misbehavior. The Mayor and Chief Burgesses of the Borough of
Plymouth had removed one of their members, James Bagg, from the office of Chief Burgess
on the grounds of his misconduct. They made a number of allegations against him. Mr.
Bagg commenced proceedings in the Court of Kings Bench challenging his removal from
office by the Mayor and other Burgesses. The Court ordered the Mayor and the Burgesses to
either restore Mr Bagg to office or to show cause why he was removed. An answer was
given referring to Mr Bagg's very bad behavior. However, the Court was not satisfied that
the reasons given in the return to the writ justified his removal. On the question of how and
by whom and in what manner a citizen or burgess should be disenfranchised, Coke CJ said:
although they have lawful authority either by charter or prescription to

remove any one from the freedom, and that they have just cause to
remove him; yet it appears by the return, that they have proceeded
against him without … hearing him answer to what was objected, or
74
(1572) 77 ER 1271
35
that he was not reasonably warned, such removal is void, and shall not
bind the party.”
Bagg's Case was an early judicial expression of the hearing rule, although by no means the
first. It was probably most notable as one of the first occasions on which mandamus was
used as a tool for judicial review of administrative action. In justifying the issue of the writ,
Coke asserted the jurisdiction of the Court of King's Bench in sweeping terms as:
not only to correct errors in judicial proceedings, but other errors, and
misdemeanors [sic] extra-judicial, tending to the breach of peace, or
oppression of the subjects, or to the raising of faction, controversy,
debate, or to any manner of misgovernment; so that no wrong or
injury, either public or private, can be done but that it shall be (here)
reformed or punished by due course of law.75
In 1723, the Court of King's Bench issued mandamus to the University of Cambridge
requiring the restoration to one Dr Bentley of the degrees of Bachelor of Arts and Bachelor
and Doctor of Divinity of which he had been deprived by the University without a hearing.
Dr Bentley had been served with a summons to appear before a University court in an
action for debt. He said the process was illegal, that he would not obey it and that the Vice-
Chancellor was not his judge. He was then accused of contempt and without further notice
deprived of his degrees by the 'congregation' of the University. The judgment of Fortescue J
in the case is often cited as an example of the way in which the idea of natural law informed
the concept of natural justice.
Fortescue J said: “The laws of God and man both give the party an opportunity to make his
defence, if he has any. I remember to have heard it observed by a very learned man upon such
an occasion, that even God himself did not pass sentence upon Adam, before he was called
upon to make his defence.”
75
36
It was Lord Kenyon who apparently coined the Latin term 'audi alteram partem' to
encapsulate the rule, of which he said: It is to be found at the head of our criminal law, that
every man ought to have an opportunity of being heard before he is condemned. This is
how principle of Audi Alteram Partem evolved in common law system.
This maxim connote that “no one shall be condemned unheard” that is every party to a suit
must be allowed to give evidence for or against the fact/allegations against him. This rule
requires that a person must be allowed an adequate opportunity to present their case
where certain interests and rights may be adversely affected by a decision-maker. To
ensure that these rights are respected, the deciding authority must give both the
opportunity to prepare and present evidence and to respond to arguments presented by
the opposite side.
Per Justice Oputa in explaining this maxim, in relation to the principle of fair hearing said:
“The Almighty God gave us two ears so that we may hear both sides”.76
Furthermore after examining the essential of the Right or doctrine of fair hearing and how
old a practice it is, Justice Fortuscue relates an incident in R v. University of Cambridge to
the case in the Garden of Eden in the Bible stating that ” Before God condemned Adam and
Eve, He gave them a fair hearing to rebut the allegation of divine obedience”.77
76
Ikuforiji Dimeji Fair Hearing and Its Importance In The Administration of Justice In Nigeria Feb 3, 2016
https://www.lawyard.ng/fair-hearing-and-its-importance-in-the-administration-of-justice-in-nigeria-by-
ikuforiji/ accessed on 22/11/2019.
77
Dimeji Ikuforiji Fair Hearing and Its Importance In The Administration of Justice In Nigeria Feb 3,
2016 Lawyard Online Publication https://www.lawyard.ng/fair-hearing-and-its-importance-in-the-
administration-of-justice-in-nigeria-by-ikuforiji/ accessed 2/3/2020.
37
The supreme court having understood the importance of fair hearing to criminal trial, in
the case of Effiom v. The state78. prescribed the essential element of fair hearing as follows:
1). Easy access to court
2). Right to be heard
3). Impartiality of adjudicating process
4). Principles of Nemo judex in causa sua
5). Whether there is inordinate delay in delivery judgement.
Nemo debet esse judex in propria sua causa or Rule against Bias:
The second aspect of procedural fairness, the rule against bias, surfaced in 1610 in Dr
Bonham's Case where Chief Justice Coke went so far as to say that the Court could declare an
Act of Parliament void if it made a man as judge in his own cause, or otherwise ‘ against
common right and reason’. This was one of his grounds for disallowing the claim of the
College of Physicians to fine and imprison Doctor Bonham, a Doctor of Physics of
Cambridge University, for practicing in the city of London without the license of College of
Physicians. The statute under which the College acted provided that fines should go half to
the King half to the College, so that the College had financial interest in its own judgment
and was judge in its own cause.
The character of the rule against bias as a kind of natural or constitutional limit upon
parliamentary power, was also asserted by Lord Chief Justice Hobart in 1614 in Day v
Savadge79 when he said that a statute 'made against natural equity, as to make a man Judge
in his own case, is void in itself, for jura naturæ sunt immutabilia the laws of nature are
78
(SC 166/1993) [1995] 1 (13 January 1995)
79
1614) Hob 85; 80 ER 235.
38
unchangeable, and they are leges legum laws that apply to law. After Savadge it was In
City of London v. Wood,80 Chief Justice Holt reaffirmed the rule against bias as an
expression of the natural law. By that time, the idea that a person could not be a judge in his
own cause was well established. Natural law as an emanation of the divine had taken its
place alongside the theories of Thomas Hobbes in which it was treated 'not as traditional
right reason, but rather as a mode of reasoning about the liberty of individuals in the state of
nature'.
In the old case of Mohammed Oladapo Ojengbede v. M. O. Esan (Loja-Oke) 81 the Supreme
Court held inter alia that
There can be no doubt that fair hearing is in most cases synonymous

with natural justice, an issue which clearly is at the threshold of our
legal system. Once there has been a denial of fair hearing as guaranteed
under section 33 (l) of the Constitution of the Federal Republic of
Nigeria, 1979, as amended, the whole proceedings automatically
become vitiated with a basic and fundamental irregularity which
renders them null and void. See Otapo v. Sunmonu (1987) 1 NWLR (Pt.
58) 587, Wilson v. Attorney-General of Bendel State (1985' 1 NWLR
(Pt.4) 572. However, in cases involving allegations of bias or real
likelihood of bias, there must be cogent and reasonable evidence to
satisfy the court that there was in fact such bias or real likelihood of
bias as alleged. In this regard it has been said, and quite rightly too, that
the mere vague suspicion of whimsical, capricious and unreasonable
people should not be made a standard to constitute proof of such serious
complaints. Accordingly in cases where a decision is impeached on the
ground of bias or real likelihood of bias, the decision must turn on the
facts whether or not under the circumstances alleged, there was or was
not bias or a real likelihood of bias on the part of the court. See Deduwa
v. Emmanuel Okorodudu & Ors (1976) 1 NMLR 237, Oguche v. Kano
State Public Service Commission (1968) NMLR 128, Jeremiah Akoh &
Ors v. Ameh Abuh (1988) 3 NWLR (Pt.85) 696 at 71 1. See also R. v.
Sussex Justices, Ex parte McCarthy (1924) 1 K.B. 259 and R. v. Camborne
Justices & Anr Ex parte Pearce (1955) 1 Q.B. 41.
Nemo Judex In Causa Sua.
80
(1614) Hob 85; 80 ER 235
81
S.C. 132/1991
39
This maxim has been defined to mean “no one should be a judge in his own cause” This is
to the effect that a judge must not have any personal interest in the case before him. See the
case of Gani fawehinmi v. Legal Practitioners Disciplinary Committee 82. The rule states
that no one ought to be judge in his or her cause or a matter in which he/she has an
interest in the matter . This is the requirement that the deciding authority must be
unbiased in his administration of justice. In addition, it requires that investigators and
decision-makers must act without bias in all procedures connected with the making of a
decision. A decision-maker must be impartial and must make a decision based on a
balanced and considered assessment of the information and evidence before him or her
without favouring one party over another. Even where no actual bias exists, investigators
and decision-makers should be careful to avoid the appearance of bias.
2.4 Criteria and Attributes of Fair Hearing

The rule of fair hearing is not a technical doctrine. It is one of substance. The question is not
whether injustice had been done because of lack of hearing. It is whether a party, entitled
to be heard before deciding, had in fact been given the opportunity of hearing. Once an
appellant court comes to the conclusion that a party was entitled to be heard before a
decision was reached but was not given the opportunity of hearing, the order or judgment
thus entered must be set aside.83
In Olugbenga Daniel v. Federal Republic of Nigeria84, the Supreme Court of established

some basic criteria and attributes to gauge whether a trial or hearing is fair or not. These
are:
82
(1985) LPELR-SC.177/1984
83
Ayorinde v. Fayoyin [2001] FWLR (Pt. 75) 483 at p.500.
84
[2014] 8 NWLR (PART 1410) 570
40
a. The Court shall hear both sides not only in the case, but also in all material issues in
the case before reaching a decision which may be pre-judicial to any Party in the case;
b. The Court or Tribunal shall give equal treatment, opportunity and consideration to all
concerned;
c. The Proceedings shall be held in Public and all concerned shall have access to and be
informed of such Public Hearings; and having regard to all the circumstances in every
material decision in the case, justice must not only be done, but manifestly and
undoubtedly be seen to have been done.
For an effective workability of the principle of Fair Hearing the court in its
administration of justice must ensure ;
1). That an accused person understand whatever that is said at the trial including the
evidence adduced, this is to the effect that “ An accused person is entitled to have,
without payment, the assistance of an interpreter if he cannot understand the language
used at the trial of the offence” 85 Thus, there should be adequate interpretation to the
accused person of anything said in a language which he does not understand, and
equally that there should be adequate interpretation to the court of anything said by
the accused in a language which the court does not understand.
2). That the right of the accused person to defend himself in person or by Legal
practitioner of his own choice is not violated. 86 “A person charged with a criminal
offence is entitled to defend himself in person or by legal practitioners of his own choice”
An accused person who appears in court without a counsel is entitled to be informed
by a court of his right to defend himself personally or through a counsel of his choice.
85
S.36(6)(e)CFRN.
86
S.36(6)(c) CFRN
41
Where an accused person in a trial for a capital offence appears without a counsel, a
High Court may assign a counsel to such accused person.
On the effect of a breach of Fair Hearing on court proceedings, The Supreme Court in the
case of OGED OVUNWO & ANOR v. IHEANYICHUKWU WOKO & ORS 87 ruled that a breach
of fair hearing in a proceeding renders the whole process a nullity. It held that:
"the point must be made that a breach of fair hearing once substantive in a
decision afflicts and clearly vitiates the whole decision and not just as to a part
of it thereof. Once it is showed as it has been showed here that the decision of
the appellate High Court has been vitiated for breaching the appellants' right
to fair hearing it follows naturally without more that the lower court's
resolution of issue 1(one) cannot stand and so the whole decision collapses
with it as it has no leg on which to stand. This is so as fair hearing is a
fundamental constitutional right as entrenched in the 1999 Constitution as
amended. And the breach of fair hearing in any proceedings without more
vitiates such proceedings in their entirety; it renders the entire proceedings
null and void. See: Military Governor, Imo State v. Nwauwa (1997) 2 NWLR
(Pt.496) 675 at 708 per Iguh JSC." Per CHUKWUMA-ENEH, J.S.C.(P. 20, paras. C-
G).88
Therefore "it is a court's duty to pronounce on every issue properly placed before it for
consideration and determination before arriving at a decision and where it has failed to do
so, it leads to a miscarriage of justice.89
In Grace Akinfe v. The State90 the trial Judge descended into the arena of the fight by asking
so many probing and searching questions which were not even confined to the facts
presented by the parties before the court. The Supreme Court held that the trial Judge had
become both a Prosecutor and a Judge at the same time. The image of an even-handed
justice was consequently destroyed and real likelihood of bias was established.
87
(2011) LPELR-SC.297/2005;
88
(2011) LPELR-SC.297/2005; See: Military Governor, Imo State v. Nwauwa (1997) 2 NWLR (Pt.496) 675 at 708
per Iguh JSC." Per CHUKWUMA-ENEH, J.S.C.(P. 20, paras. C-G)
89
Ibid.
90
[1988] 7 SCNJ (Pt. 2) 226 at pp. 233, 241,
42
2.5 Ex Post Facto or Retroactive Law
The Constitution in Section 36(8) CFR 199991 provided that
“no person shall be held to be guilty of a criminal offence on account

of any act or omission that did not, at the time it took place, constitute
such an offence, and no penalty shall be imposed for any criminal
offence heavier than the penalty in force at the time the offence was
committed”.
An ex post facto law (from the Latin for "after the fact") or retroactive law, is a law that
retroactively changes the legal consequences of acts committed or the legal status of facts
and relationships that existed prior to the enactment of the law. In reference to criminal
law, it may criminalize actions that were legal when committed; or it may aggravate a
crime by bringing it into a more severe category than it was in at the time it was
committed; or it may change or increase the punishment prescribed for a crime, such as by
adding new penalties or extending terms; or it may alter the rules of evidence in order to
make conviction for a crime more likely than it would have been at the time of the action
for which a defendant is prosecuted. Conversely, a form of ex post facto law commonly
known as an amnesty law may decriminalize certain acts or alleviate possible punishments
(for example by replacing the death sentence with life-long imprisonment) retroactively.
Willis in his Constitutional Law of United States brought out a lucid classification of the
penal law which are ex post facto. They are as follows:
1. When they make a criminal act which was innocent when done.
2. When they make a crime greater than it was when it was committed.
3. When they make the punishment greater than the punishment was at the time the act
was committed.
4. When they change the rule of evidence as to deprive the defendant of substantial right
and,
91
Section 36(8) CFR1999 amended 2011
43
5. When they make retrospective qualifications for an offence which are not a proper
exercise of the police power.
Thereby, the above said classifications includes the ex post facto law according to Willis.
2.6 The Consequences of Breach of Fair Hearing
It has been stated from time immemorial that courts are bound to give all the parties before
them the ample opportunity of hearing before coming to a decision. 92 Fair hearing includes
hearing all the evidence the parties intend to place before the court (especially through
their witnesses) with a view to establishing their case. See Aladetoyinbo v. Adewumi93.
The audi alterem partem principle as guaranteed under Section 36(1) of the 1999
Constitution (as amended) remains a binding and indispensable requirement of justice
applicable to and enforceable by all courts of law. 94 Any decision reached in violation of the
principle of fair hearing must go down under the sledge-hammer of the appellate court. 95
After reproducing section 36 of the constitution and in showing the fatal implication of the
violation or curtailment of this sacred right of a defendant bestowed by the Constitution,
the Supreme Court, in the case of Akpamgbo-Okadigbo v. Chidi96 has this to say;
“This is a constitutional provision which must not be toyed with. It is well

settled that the right to fair hearing entrenched in section 36 (1) of the
1999 Constitution (supra) entails not only hearing a party on any issue
which could be resolved to his prejudice but also ensuring that the
hearing is fair and in accordance with the twin pillars of justice, namely,
audi alteram partem and nemo judex in causa sua. Thu, where a
party is not heard at all in a matter which affects his right or the trial is
adjudged unfair, any judgment generated therefrom, becomes a nullity
and of no legal consequence. It is bound to be set aside.”
92
Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587
93
(1990) 6 NWLR (Pt. 154) 98
94
Akpamgbo-Okadigbo v. Chidi (No. 1) (2015) 10 NWLR (Pt. 1466) 124 @ 197.
95
Mohammed vs. Olawunmi (1990) 2 NWLR (Pt. 133) 458.
96
(2015) 10 NWLR (Pt. 1466) 124
44
Going further at pages 197 to 198, the Supreme Court, per Muhammad, J.S.C. stated with a
tone of finality thus;
“One outrightly agrees with learned appellant’s counsel that it is trite

that where a person’s legal rights or obligations are challenged he must
be given full opportunity of being heard before any adverse decision is
taken against him with regard to such rights or obligations. This “audi
alterem partem” principle as guaranteed under Section 36(1) of the
1999 Constitution of Federal Republic of Nigeria as amended remains a
binding and indispensable requirement of justice applicable to and
enforceable by all court of law. The principle affords both sides to a
dispute, ample opportunity of presenting their case to enable the
enthronement of justice and fairness. In the application of the principle,
a hearing is said to be fair and in compliance with the dictates of the
Constitution when, inter alia, all the parties to the dispute are given a
hearing or an opportunity of a hearing. If one of the parties is refused or
denied a hearing or the opportunity of being heard, the court’s
proceedings being perverse will be set aside on appeal.”.
CHAPTER THREE
STATUTORY PROVISIONS FOR THE DOCTRINE AND

RIGHT OF FAIR HEARING IN NIGERIA
3.0 Introduction
This chapter makes a review of statutory provisions for fair hearing in Nigeria. It reveals
the provisions of the constitutions as it relates to fair hearing and at the same time
elaborate on the rights of the citizens as guaranteed by other laws enforce in Nigeria.
These rights include the right to access to the court, right to be represented by a counsel,
right of appeal and others.
3.1 Fair Hearing and Nigerian Constitution
The 1999 Constitution of the Federal Republic of Nigeria, 2011 as amended has provided
appropriate guarantees for right of fair hearing and fair trial. Sections 35 and 36 of the
45
CFRN covered a wide range of these right and made adequate provisions for their
protection.
Section 36 of the Federal Republic of Nigeria provides that
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 its independence and impartiality.
The provisions of this section covered general conditions for the right of fair hearing of
every citizen. The determination of a person’s right in civil proceedings as well as rights in
criminal proceedings generally entails that a person shall be entitled to access to justice in
the court or a tribunal within a reasonable time.
Although, the Constitution does not define the term “fair hearing”, yet the courts have
proffered some judicial definitions to it. In the case of Ezechukwu V. Onwuka97, the Court
of Appeal pointed out that;
“Fair hearing is a hearing which is fair to all parties to the suit, whether
the plaintiff, the defendant, the prosecutor, or the defence. It is a
doctrine of substance and the question is not whether injustice has been
done because of lack of fair hearing rather ...... whether a party entitled
to be heard has been given an opportunity of being heard...... fair
hearing entails doing during the course of a trial all that will make an
impartial observer to believe that the trial has been balanced.... to both
sides.....”98
Furthermore, Section 35(4) 1999 CFRN99 2011 as amended provides that an arrested or
detained person shall be brought before a court of law within reasonable time. For the first
time, reasonable time is defined under Section35(5)100 as one day where there is a court of
97
(2005)All F.W.L.R (pt.280) @ pp. 1553.
98
Ibid.
99
Section 35(4) C. F .R.N. 1999 (amended) 2011
100
46
competent jurisdiction within 40km radius, and in any other case, two days or such longer
period, in the circumstance which the court may regard as reasonable 101.
The subsection further provides that if an accused person is not tried;
(a) Within 2 months from the date of arrest or detention in case of

persons who is in custody or not entitled to bail or
(b) within three months in case of persons who have been released on
bail,
“he shall without prejudice to further proceedings that may be brought
against him, be released unconditionally or on such conditions as are
reasonably necessary to ensure that he later appears for trial‟102.
The effect of this provision is that, where the accused person is not brought to court within
a reasonable time, whatever reasons the police may have for his continued detention, he
must be released on bail unconditionally or conditionally, after two months or three
months respectively depending on whether or not he is entitled to bail. 103
It should be noted that this procedural safeguard as regards trials is not available to a
person charged with a capital offence, since he is not ordinarily entitled to bail because of
the gravity of the offence104.
Section 36 (2) CFRN provides that:
Without prejudice to the foregoing provisions of this section, a law shall

not be invalidated by reason only that it confers on any government or
authority power to determine question arising in the administration of
a law that affects or may affect the civil rights and obligations of any
person if such law—
(a) provides for an opportunity for the person whose rights and
obligations may be affected to make representations to the
administering authority before that authority makes the decision
affecting that person ; and
(b) contains no provision making the determination of the
administering authority final and conclusive.
101
Augustine Eda v. The Commissioner of Police (1982)NCLR 219
102
Section 35(5) (a) & (b) CFRN. 1999 (amended) 2011
103
Ogueri v. The State (2000) 5 WRN 227
104
Shafiu Atiku v. The State (2002) 33 WRN 110
47
This section provides a guarantee against use of draconic legislation. It provides for an
opportunity for the public to participate or make their input in the legislative process on
the enactments of laws that affect them.
Section 36(3) CFRN provides that:

The proceedings of a court or the proceedings of any tribunal relating
to the matters mentioned in subsection (1) of this section (including
the announcement of decisions of the court or tribunal) shall be held
in public.
Criminal trials must be heard in public (except in rare cases, such as where children are
involved). Anyone can attend a trial, including victims, the media and the general public.
This helps to monitor what happens in court, provides transparency and builds trust in the
criminal justice system.
Section 36 (4) CFRN provides that

Whenever any person is charged with a criminal offence, he shall unless
the charge is withdrawn, be entitled to a fair hearing in public within a
reasonable time by a court or tribunal:
Provided that—
(a) a court or such a tribunal may exclude from its proceedings persons
other than parties thereto or their legal practitioners in the interest of
defence, public safety, public order, public morality, the welfare of
persons who have not attained the age of eighteen years, the protection
of the private lives of the parties or to such extent as it may consider
necessary by reason of special circumstances in which publicity would
be contrary to the interests of justice ;
(b) if in any proceedings before a court or such a tribunal, a Minister of
the Government of the Federation or a Commissioner of the Government
of a State satisfies the court or tribunal that it would not be in the public
interest for any matter to be publicly disclosed, the court or tribunal
shall make arrangements for evidence relating to that matter to be
heard in private and shall take such other action as may be necessary or
expedient to prevent the disclosure of the matter.
48
Under this section, whenever a person is charged with a criminal offence, he shall unless the charge is
withdrawn be entitled to a fair hearing in the public. In other words, the room or place in which any trial
is to be conducted shall be an open court to which the public may have access as far as it can conveniently
contain them.
The proviso to Section 36(4) further classifies certain instances when the public may not be permitted
during a criminal trial. These situations are;
i) in the interest of defence, public safety, public order and public morality.
ii) for the welfare of persons who have not attained the age of eighteen years;
iii) to protect the private lives of the parties to the proceeding;
iv) upon the satisfaction of court by the Minister of Government of the Federation or a
Commissioner of a State that it would not be in the public interest for any matter to be publicly
tried, the court may hear such evidence in camera.
v) During trial of juvenile;
vi) When an enactment expressly requires that a trial shall be held in camera.
In all these circumstances, when proceedings are being heard in camera, except the court expressly
stated otherwise, bona fide representative of mass media, court officials and legal practitioners
appearing in the case are permitted in court.
Section 36 (5)CFRN provides that
Every person who is charged with a criminal offence shall be presumed

to be innocent until he is proved guilty:
Provided that nothing in this section shall invalidate any law by reason
only that the law imposes upon any such person the burden of proving
particular facts.
It is the duty of the prosecution to prove the accused guilty as charged. The standard of
proof in criminal charges is beyond every reasonable doubt. Until this duty is discharged
by the prosecution, the law sees the person standing trial as innocent and as such is
49
entitled to his fundamental rights. Where a person is entitled to bail and the conditions are
met by the defence, the court has the jurisdiction to grant such request. Section 35(7)
(a)CFRN105 provides; “nothing in subsection 4 shall be construed as allowing bail for a capital
offender or suspect”106. This seems that bail for a capital suspect is not ordinary. It must be
granted under exceptional circumstances. It is clear that the constitution meant Sections
35(4) and (5)107 as Section 35(4) cannot stand on its own. In Amuda v. C.O.P,108 it was held
that the section cannot be read to foreclose bail for an accused on the ground that it will
undermine Constitutional provision of presumption of innocence as enshrined under
Section 36(5).109 Bada J. said, “to say that a person accused of a capital offence cannot be
granted bail is wrong because he has not been proved guilty. It seems that the Constitution is
not as forbidding so it looks in the first glance. Therefore, Sections 36(5) and 35(7) should be
read together.”
Every person who is charged with a criminal offence shall be entitled

(a) to be informed promptly in the language that he understands and in
detail of the nature of the offence ;
(b) to be given adequate time and facilities for the preparation of his
defence;
(c) to defend himself in person or by a legal practitioner of his own
choice;
(d) to examine in person or by his legal practitioner the witnesses called
by the prosecution before any court or tribunal and obtain the
attendance and carry out the examination of witnesses to testify on his
behalf before the court or the same conditions as those applying to the
witnesses called by the prosecution ; and
(e) have, without payment the assistance of an interpreter if he cannot
understand the language used at the trial of the offence.
105
106
Section 35(7) (a) C. F .R.N. 1999(amended) 2011
107
C. F .R.N. 1999 (amended) 2011
108
(1981)2 NCLR 291
109
Section 36(5) C. F .R.N. 1999
50
By virtue of Section 36(6) (a), a person charged with a criminal offence shall be entitled to
be “informed promptly” in the language he understands, and in detail, of the nature of the
offence. The right that the accused must be informed promptly is an obvious extension of
the well known common law rule that once a person is arrested he should be informed that
he is arrested for a particular reason. The rationale behind informing the arrested person
of the reason for his arrest is to enable him realise that his personal liberty is lawfully
interfered with while the reason for informing him about the charge against him is to
enable him prepare his defence. Insufficiency of details, like failure to furnish grounds for
an arrest, is not a mere matter of procedure which can be cured by appropriate remedy; its
effect may invalidate the trial and any conviction resulting from it. It is also a violation of
the right to have fair trial to convict a person of an offence which he is not charged with.
Everyone who is arrested or detained must be told what their rights are and how to access
these rights. The law is that
“any person who is arrested or detained shall be informed in writing

within twenty-four hours (and in a language that he understands) of the
facts and grounds for his arrest or detention.110
These rights can be classified to include:
i. the right to notify someone of their situation;

ii. the right to legal representation/advice;
iii. the right to medical assistance;
iv. the right to challenge the lawfulness of their detention;
v. the right not to incriminate themselves;
vi. the right to remain silent the right to complain about their conditions.
vii. Also foreign nationals have the right to communicate with consular officials
or an appropriate international organisation.
These rights can sometimes be restricted. For example, a person’s right to notify someone
of their arrest may be delayed if the police think someone else is involved in the crime and
110
Section 35(3)CFR 1999 as Amended 2011
51
there is a concern that the arrested person may warn the other individual. Most
importantly, people are entitled to know what they are accused of, in detail and in a
language they understand.
People charged with a criminal offence must have time to prepare their defence, and
facilities such as a private place to meet with their lawyer. This includes time to review the
evidence against them and find evidence to support their account. This evidence might be
witnesses to what happened or expert reports such as medical evidence. Everyone charged
with a criminal offence has the right to be tried without undue delay. The length of time
judged reasonable for preparation and for the right to be heard will depend on the
circumstances of the case, such as the complexity of the case and the conduct of the accused
person and the authorities.
In the case of Anthony Nwachukwu V. The State one of the issues to be determine by the
Supreme court was whether the Court of Appeal was right or justified in affirming the
conviction of the appellant by the trial court which suo motu undertook the untenable
function of an interpreter, and whether this procedure did not violate the appellant's right
to fair hearing and render thereby all the findings and conclusions of guilt, nullities. The
court took time to explain that:
Where the accused does not understand the language used at his trial, it
is his duty or his counsel's duty to bring to the notice of the court at the
earliest opportunity, that he does not understand the language used at
the trial. See: Madu .v. State (supra) pp 408 - 409 Paras E - D. where in a
situation it is affirmatively established that the interpreter (where there
is one) was not present on one of the days in which proceedings were
taken, then, prima-facie, an accused person who was not represented by
a counsel would have shown that his fundamental right to fair hearing
was breached or violated. The position would however be different
where the accused person was represented by counsel, as in the appeal
52
on hand, and there was no objection taken on the issue of any alleged
lack of interpretation, That will, of course, be too late in the day to do so,
having consented to the procedure employed by the trial court; See:
Lockman v State (1972) All NLR. 498: State v Gwonto (1983) 1 SCNLR
142; Madu v State (supra). In a general note, I think it is instructive to
state that although the absence of an interpreter in a criminal trial
where the accused person does not understand the proceedings of the
trial court is a clear violation of his Constitutional right, it does not
render the whole trial "null and void." It is only the testimony of
witnesses whose evidence was established not to have been interpreted
as required by law that needs to be expunged from the records. See:
Ogba v State (1992) 2 NWLR (Pt. 222) 164; Okaroh v state (1990) 1
NWLR (Pt.125) 128; Madu v State (supra). But where the non-
interpretation is initially at the arraignment stage, as seen earlier, that
can, abinitio invalidate the whole proceedings and render same null and
void as the substratum of the trial has collapsed from the start and as
one cannot put something on nothing and expect it to stand. It would
certainly collapse as Lord Denning said in the case of Mackfoy v UAC Ltd
(1962) A. C. 152 or (1961) 3 All E. R. 1169.111
It is settled law that people charged with a criminal offence have the right to the assistance
of a competent interpreter, free of charge if they do not understand or speak the language
used in court. To this effect, Section 36(6) (e)112 provides that where the accused person
does not understand the language of the court, in which the proceedings are to be
conducted, he is entitled to the assistance of an interpreter, free of charge. Such
interpretation must be full, accurate and without any distortion. It is for the accused person
or his counsel to notify the court that he does not understand the language in which the
trial is being conducted, else, it would be presumed that there is no complaint in that
respect. The procedure may be dispensed with where the accused person so wishes and
the trial judge is of the opinion that the accused person does not require any interpretation
of the proceedings.
111
Anthony Nwachukwu V. The State SC.4/2005
112
Section 36(6) (e)
53
In Sampson Uweakweyhinya v. The State113, the Supreme Court further held that if the
accused person does not ask for an interpreter, the failure to supply one would be treated
as a procedural irregularity and a conviction may only be set aside if it had led to a
miscarriage of justice. However, if a counsel represents the accused, the objection must be
taken at the trial in the first instance, and not on appeal. The Court also pointed out that
the accused ought to have been granted a longer adjournment to enable him engage the
services of a legal practitioner.
Another wing of the provision of Section 36(6) (c) provides for the right of a person to be
ably represented by a legal practitioner of his choice or where he thinks he is capable of
standing for himself as a defendant without a legal representative, he is at liberty to make
such a choice. Therefore, every person who is arrested or detained must be told of their
right to have legal representation. This can be either their own lawyer or a competent
lawyer who is assigned to assist them if required, in the interests of justice – free of charge
if they cannot afford to pay. They have the right to confidential communications with their
lawyer.

When any person is tried for any criminal offence, the court shall keep a
record of the proceedings and the accused person or any person
authorized by him in that behalf shall be entitled to obtain copies of the
judgment in the case within seven days of the conclusion of the case.

No person shall be held to be guilty of a criminal offence on account of
any act or omission that did not, at the time it took place, constitute
such an offence, and no penalty shall be imposed for any criminal
offence heavier than the penalty in force at the time the offence was
committed.
113
(2005)6 MJSC 1 at 17,18
54
This section provides against the use of ex-post facto law or use of retrospective law in
criminal proceedings. A person is not guilty of an offence except where the conduct is
declared to be an offence in a written law as at the time he does the act and the punishment
stated. Neither will a person receive punishment higher than prescribed by the law as at
the time when the act or omission that constitute the crime was made.
The practice whereby persons are remanded in prisons awaiting trial under the guise of
holding charges most times by the magistrate courts on the demand of the police and or
other law enforcement agencies on holding charges is a contravention of the provision of
the Constitution of the Federal Republic of Nigeria.
Section 4(9)114 of the Constitution of Federal Republic of Nigeria prohibits the law makers
from making retrospective laws. It provided that “Notwithstanding the foregoing
provisions of this section, the National Assembly or a House of Assembly shall not, in
relation to any criminal offence whatsoever, have power to make any law which shall have
retrospective effect.”115

No person who shows that he has been tried by any court of competent
jurisdiction or tribunal for a criminal offence and either convicted or
acquitted shall again be tried for that offence or for a criminal offence
having the same ingredients as that offence save upon the order of a
superior court.
This is a law against Double Jeopardy. Double jeopardy is a procedural defence that forbids
a defendant from being tried again on the same (or similar) charges following a legitimate
acquittal or conviction. In common law countries, a defendant may enter a peremptory
plea of autrefois acquit or autrefois convict (autrefois means "in the past" in French),
meaning the defendant has been acquitted or convicted of the same offence. 116
114
Section 4(9) CFN 1999 amended 2011
115
Ibid.
116
Benét, Stephen Vincent (1864). A treatise on military law and the practice of courts-martial.p. 97.
55
If this issue is raised, evidence will be placed before the court, which will normally rule as a
preliminary matter whether the plea is substantiated; if it is, the projected trial will be
prevented from proceeding. Therefore this provision of the constitution guarantee against
being "twice put in jeopardy" as a Constitutional right. In other countries, the protection is
afforded by statute.
No person who shows that he has been pardoned for a criminal offence
shall again be tried for that offence.
The constitution has empowered the President of the Federal Republic of Nigeria to grant
pardon to any person who is found guilty of any criminal offence in Nigeria.
Section 175 (1) CFRN117 provides that: The President may -
(a) grant any person concerned with or convicted of any offence created
by an Act of the National Assembly a pardon, either free or subject to
lawful conditions;
(b) grant to any person a respite, either for an indefinite or for a
specified period, of the execution of any punishment imposed on that
person for such an offence;
(c) substitute a less severe form of punishment for any punishment
imposed on that person for such an offence; or
(d) remit the whole or any part of any punishment imposed on that
person for such an offence or of any penalty or forfeiture otherwise due
to the State on account of such an offence.
(2) The powers of the President under subsection (1) of this section shall
be exercised by him after consultation with the Council of State.
(3) The President, acting in accordance with the advice of the Council of
State, may exercise his powers under subsection (1) of this section in
relation to persons concerned with offences against the army, naval or
air-force law or convicted or sentenced by a court-martial.
The consequence of this provision is that when a person is granted state pardon, he is seen
in law as clean as if he has never committed any of the crime for which he was granted
pardon. It is therefore unlawful to refer to such a person as an ex-convict because his crime
has been blotted way, he is discharged and acquitted. In an English case of Hay v. Justices
117
Section 175. (1) CFN 1999 as amended 2011
56
118
it was held that under a statute which read, "Every person convicted of felony shall for
ever be disqualified from selling spirits by retail, and no license to sell spirits by retail shall
be granted to any person who shall have been so convicted. . . .", a pardon removes the
disqualification. Pollock, B., reached this result by taking at face value dicta of previous
cases and writers that a pardon takes away "not only poenam, but reatum. . ." President
Goodluck Jonathan in 2015, relying on this provision granted a state pardon to Chief
Alamesia, the former Governor of Bayelsa State.
Section 36(11) provides that:
No person who is tried for a criminal offence shall be compelled to give

evidence at the trial.
Since statements made to the police constitute the most important evidence in criminal
detection, it is necessary that the statement must be voluntary and not in any way induced.
Section 35(2) CFRN provides that; “Any person who is arrested or detained shall have the
right to remain silent or avoid answering any question until after consultation with a legal
practitioner or any person of his choice” 119 Thus, the accused may avoid answering any
question or refuse to say anything until after consulting his lawyer or anyone who can
advise him on what to say and how to say it to avoid incriminating statement because of
the possibility of future prosecution 120. The word “until‟ in the section appears to infer that
this right does not continue after consultation with the lawyer or other person. In fact, he
has the right to remain silent throughout the trial, leaving the burden of proving his guilty
on the prosecution121.
118
Hay v. Justices, 24 Q. B. D. 561 (i8go).
119
120
Oyegbemi v A.G of Federation &ors (1982)3 NCLR 895
121
Adekunle v The state (2006) 43 WRN 34
57
Subject as otherwise provided by this Constitution, a person shall not be

convicted of a criminal offence unless that offence is defined and the
penalty therefore is prescribed in a written law ; and in this subsection,
a written law refers to an Act of the National Assembly or a Law of a
State, any subsidiary legislation or instrument under the provisions of a
law.
A crime or offence is any act or omission prohibited by a written law. If a person does an
act which a law prohibits or fails to do an act which the law mandates, such a person can be
said to have committed a crime and may be charged to court accordingly for the
commission of an offence. The implication of this is that before any person can be charged
with an offence and convicted for the commission of that offence, there must be a written
law which can be referred to. The written law which defines an Act or Omission as a crime
could be either a law that is enacted by the National Assembly, or a law enacted by a state
house of assembly, or it could be a law made by the Local Government authority or a bye
law; that is a law made pursuant to another law. The simple requirement of the law is that
no act or omission can be referred to as a crime unless a written law says so.
3.2 Conclusion
The principle of fair hearing as enshrined in the Constitution is often illustrated by the
“twin pillars of justice” expressed in the Latin maxim; Nemo judex in causa sua and audi
alteram partem. A breach of this doctrine of fair hearing in a judicial inquiry renders the
action unconstitutional, illegal and liable to be set aside. Criminal charges, or a person’s
rights and obligations in a suit at law, must be determined by a competent, independent
and impartial tribunal established by law. Trial by military or special tribunals must
comply with human rights standards in all respects, including legal guarantees for the
58
independent and impartial functioning of such tribunals. If statements and other forms of
evidence have been obtained as a result of torture, ill-treatment or other forms of
intimidation, they must be excluded from evidence in all proceedings. 122 A fair trial may
also require evidence to be excluded if it was obtained in a manner that violates other
international human rights standards. The only exception to this is evidence of abuse in a
case against someone who is accused of torture or other abuse.
A person charged with a criminal offence is “entitled ....to be given adequate time and facilities
for the preparation of his defence”. It is after the person would have been told of the charge
against him that the issue of time and facilities for preparing his defence would arise.
Consequently, this aspect of fair hearing has been argued in Nigerian courts on several
occasions. The contentions have tended to centre on the request on the part of the accused to get
an adjournment in order to consult or obtain the services of a counsel or to be able to invite
witness to court for his defence. For any of these, the accused will naturally need some time. In
Gopka v. I.G.P123, where the accused was brought to court under a bench warrant to stand trial
for offences of stealing and fraudulent accounting, he applied for an adjournment to enable him
retain the service of a counsel to defend him. A short adjournment was granted to him until later
in the afternoon. At the resumed hearing, counsel was not in court. He was subsequently
convicted. On appeal, there was evidence before the court that any available counsel would have
had to travel to court from the nearest town, a distance of about 23 miles to the court, and hence
the short adjournment was inadequate. In allowing the appeal, the appellate court also pointed out
that the accused ought to have been granted a longer adjournment to enable him engage the services of a
legal practitioner.
122
See Section 29 Evidence Act 2011
123
(1961) 1 All NLR, 423.
59
This is the position of the law on fair hearing in Nigeria and has been the position of the
court as has been held in Oged Ovunwo & Anors V Iheanyichukwu Woko & ors supra that
"The right to fair hearing is a constitutional right enshrined in section 36 of the 1999
Constitution. This right cannot be waived or statutorily taken away. It entails that in the
determination of his civil rights and obligations, everyone is entitled to a fair and public
hearing within a reasonable time by an independent and impartial tribunal established by
law. The basic attributes of fair hearing include- a. That the court 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. b. That the court or tribunal gives equal
treatment, opportunity and consideration to all concerned. c. That all concerned shall be
informed of and have access to such place of public hearing. d. 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.”124
124
(2011) LPELR-SC.297/2005
60
CHAPTER FOUR
CHALLENGES OF FAIR HEARING IN NIGERIA
4.1 Introduction
Despite the statutory provisions of fair hearing in the Nigerian socio-political system, as
guaranteed by the Constitution Of The Federal Republic Of Nigeria, the constant abuse of
human right in Nigeria has continued to grow to an alarming stage. In this chapter the
researcher makes a critical evaluation of applicability and some crucial challenges of fair
hearing in Nigeria.
4.2 Background History of the Nigerian legal system
Before the advent of colonialism, the indigenous legal systems in Nigeria society were
traditionally designed to meet the needs of the indigenous people. In the Northern Nigeria
where Islamic religion served both political and religious values, the Islamic legal system
promoted fair hearing according to the principles of sharia. The sharia was the main
source of law and covers both criminal and civil laws. In the West, the Yoruba Legal system
include the traditional institutions and a political system which is different from the
Northerners. These institutions include the secret cults, the Obas in counsel and the Alafin.
These institutions wielded authority among the people and ensured that there is order and
tranquility in the system. They provided the required legal framework as well as
enforcement of laws and order. Criminal justice were delivered based on defined
principles. In the traditional Igbo society the family unites were the basic foundation of
the social system. This does not mean that there were no traditional legal system. The
society practiced a social system that has been referred often as ohacracy or a political
61
system which is akin to the modern day democracy. 125 The assembly of the family heads or
elders dispensed justice in an open court where every person accused of a criminal conduct
is cross examined by the generality of the oha and his guilt determined. He is given
opportunity to be heard in an open by the people and punishments are usually corrective
and retributive.126
The advent of colonialism introduced the English legal system. The British type of legal
system was introduced to replace the traditional legal system. The court system was alien
to the indigenous people. The British imported laws from the United Kingdom which were
applied in these courts. Also imported were the doctrines and principles of equity and
common law applicable in England as at 1900127.
The colloquial effect of all these on the Nigeria legal system is obvious because the
imported legal system which is alien to our indigenous system has posed a huge challenge
to administration of justice in Nigeria. It is obvious that many people do not understand
the introduced system of administration of justice and therefore can not take maximum
benefit of these novel dispensation of Nigeria justice system. Consequently, this has given
room to various levels and forms of abuse of human rights especially the right of fair
hearing.
4.3 Abuse of Principles of Fair Hearing and Natural Justice by the Executives in
Nigeria
The Executive arm of the government is arguably the most essential arm of any civilian
administration. This is because it has always existed whether the government is military or
125
Emmanuel C. Onyeozili and Obi N. I. Ebbe: SOCIAL CONTROL IN PRECOLONIAL IGBOLAND OF NIGERIA African
Journal of Criminology and Justice Studies: AJCJS, Vol.6, #s1 &2 November 2012 ISSN 1554-3897
126
ibid
127
ibid
62
civil. It is an arm that is saddled with the responsibility of execution and maintenance of the
constitution and laws validly made by the legislature.
The Executive arm of government is more prone to abuse and violation of principles of
natural justice, basically it is the very arm of government that directly interacts with the
populace in the course of execution of the law. One would expectedly therefore hope that
this arm should be more cautious when it comes to the observance of the principles of
natural justice in general.
Regrettably, however, the Nigerian experience has shown that both the principles of
natural justice and the rule of law are more in breach than in observance as executive
lawlessness has unfortunately become a recognized feature of Executive actions in Nigeria.
Instances of Executive lawlessness ranges from the disobedience to court orders,
arbitrariness, usurpation of functions and powers of other arms of government to the
encroachment of citizen’s rights. The faceoff between the administration of President
Olusegun Obasanjo and the Nigerian Labour Congress (NLC) over arbitrary increases in the
pump price of petroleum is a demonstration of Executive lawlessness.
Disobedience to court’s order by the Executive has had an adverse effect on the observance
of the principles of natural justice in the country. Thus, even where a citizen whose rights
have been infringes upon by the Executive action gets judgment in court, his victory may
still be frustrated by non-compliance by the Executive. Thus, the situation is more pathetic
when it is realized that it is the Executive arm of government that has the constitutional
responsibility of enforcing the law while disobedience of courts’ orders in a military
63
administration though depreciable may be understandable, having in mind its genesis;
same cannot be said of a civil administration which is founded on the rule of law.
In Minister of Internal Affairs v. Shugaba128, Executive lawlessness was exhibited when
without a trial, let alone a fair hearing; Abdulrahman Shugaba was deported on the
allegation of his not being a Nigerian, but an illegal immigrant. The constant abuse or
breach of fair hearing by the present administration in Nigeria has been so pronounced to
the extent that court orders are bluntly refused by the Federal government and its
agencies, the DSS and the EFCC for instance the case of Dasuki and many other cases stand
out in evidence against the Executive arm of government’s abuse of doctrine of fair hearing
in Nigeria.
Executive lawlessness hampers the observance of the principles of natural justice and
thereby constitutes a big minus on civil administrations which one would have expected
would be adherent to the rule of natural justice.
4.4 Abuse of the Doctrine of fair hearing and Natural Justice by the Judiciary
The judiciary is traditionally seen as the last hope of the common man; of course, it is a
forum where remedies are obtainable against any oppressive act of the other two arms of
government as well as individuals. Indeed, the judicial process is said to be integrative in
nature, that is, it solidifies the multi-furious strands that holds society together.
It can be noted however that incidences of the Judiciary acceding to unnecessary
adjournments delay court trials and this negates the principle of Natural Justice as Justice
delayed is Justice denied. In a bid to curtail adjournments, the Administration of Justice
Commission Act was enacted in 2015.
128
(1981) 2 N.C.L.R. 459
64
Basically, the judicial power of the Nigerian Courts is contained in Section 6 of the 1999
Constitution. Thus an efficient and virile judiciary is Sine qua non to an independent
judiciary. However, the judiciary in Nigeria cannot be regarded as fully independent due to
a number of factors such as the mode of appointment of judges which is done by the
Executive on the recommendation of the National Judicial Council, insecurity of tenures as
the Executive may fire judges at will upon flimsy excuse or for no reason at all. The recent
case of Oneghene, the then Chief Justice of the Federation who was recently removed from
office on trump charges or rather flimsy reason. 129 Earlier before this, many judges has
been intimidated and harassed by the operatives of the law enforcement agencies. Many
had their homes broken and ransacked all in an attempt to arrest them. In 1975, many
judges including Justice Elias, the then Chief Justice of Nigeria were removed from office
without the observance of the elementary rules of natural justice. Equally, in 1985, many
Judges were dismissed and/or unceremoniously retired 130; with a hostile atmosphere of
insecurity of tenure as above briefly discussed, it becomes not too certain that the
independence of the judiciary can be ensured.
Corruption is another curse responsible for a lack of judicial ineptitude in Nigeria. It is an
open secret that corruption has tragically enveloped the whole country and the judiciary
not therefore being an exception has been entangled in this vice. Apparently, where the
129
Trump’s Impeachment Trial a Perilous Duty for Chief Justice https://www.nytimes.com/2020/01/14/us/john-roberts-
impeachment-trial.html Accessed 12/8/2020.
130
Odeleye D. O. The Doctrine of Natural Justice under Civil and Military Administrations in Nigeria Journal of Politics and
Law; Vol. 6, No. 2; 2013 ISSN 1913-9047 E-ISSN 1913-9055
65
judiciary is corrupt, justice goes to the highest bidder and it becomes a question of cash and
carry. Commenting on the issue of corruption in the judiciary, Oputa J.S.C. (as he then was)
remarked: 131
Money they say is the root of all evil. The Bench is definitely not a place
to make money. A corrupt Judge is the greatest curse to afflict on any
nation. The passing away of a great advocate does not pose such public
danger as the appearance of a corrupt and/or weak judge on the Bench
for in the latter instance, the public interest is bound to suffer and
justice…is thus depreciated and mocked and debased. It is better to have
an intellectually average but honest judge than a legal genius who is a
rogue. Nothing is as hateful as venal justice, justice that is auctioned,
justice that goes to the highest bidder.
Amongst other notable factors that impede independence of the judiciary is the lack of
independent machinery for the enforcement of its decision. Alexander Hamilton
commenting on the effect of lack of self enforcement machinery for the judiciary observed:
132
The judiciary is beyond comparison, the weakest of the three

departments of power… it has no influence over either the sword or the
purse, no direction either of the strength or the wealth of the society;
can take no active resolution whatsoever. It may truly be said to have
neither force nor will but merely judgment.
Notwithstanding the above obvious handicaps of the judiciary arising from lack of
independence, amongst other constraints, The Nigerian judiciary has had an impressive
record for the defense of natural justice in general and fair hearing in particular. Perhaps,
the list of such instance cannot possibly be given comprehensively in a limited work of this
nature, however, it is hoped that a few examples would suffice.
131
Fasheye, O.M., The African Guardian, Saturday November 13; (1993) p. 20.
132
HAMILTON The Avalon Project Document in Law History and Diplomacy
https://avalon.law.yale.edu/18th_century/fed78.asp
66
In Mogaji v. Board of Customs and Excise 133 , the court held that it is a violation of the
constitutional prohibition of inhuman or degrading treatment to organize a raid with the
use of horse whips, guns, tear-gas, to strike or otherwise injure custodians of such goods.
Equally, in Alaboh v. Boyles & Anor134 the court held that the beating, pushing and
submersion of the applicant’s head in a pool of water by the first respondent were inhuman
and degrading treatment. The court also declared unconstitutional, the arrest and
detention of innocent citizens for the offence of another person in A.C.B. v. Okonkwo135
where Niki Tobi J.C.A. (as he then was) observed:
I know of no law which authorizes the police to arrest a mother for an offence
committed by the son. Criminal responsibility is personal and cannot be
transferred. A police officer who arrested “A” for the offence committed by “B”
should realize that he has acted against the law. Such a police officer should in
addition to liability in civil action be punished by the police authority.
In Onu Obekpa v. C.O.P.136, it was held that bail to a person accused of an offence other than
a capital offence is a basic constitutional right and undoubtedly the right to release before
trial is much more basic where trial is going to last more than two months for a non-capital
offence. In the case, the state counsel opposed an application for bail of the accused on the
ground that he had not stayed in detention up to two months as envisaged by Section 32 (1)
of the 1979 Constitution to entitle him to bail.
In Mohammed Oladapo Ojengbede v. M. O. Esan (Loja-Oke)137 the Supreme Court held
inter alia that:
There can be no doubt that fair hearing is in most cases synonymous

with natural justice, an issue which clearly is at the threshold of our
133
134
Alaboh v. Boyles (1984) 4 NCLR 830;
135
NWLR PART 480 P194
136
(1982) 2 N.C.L.R 420.
137
S.C. 132/1991
67
legal system. Once there has been a denial of fair hearing …. the whole
proceedings automatically become vitiated.
In OLAJIDEODUTOLA & ords V. The PRINCIPAL (A. KEHINDE, IJEBU-ODE GRAMMAR
SCHOOL & anor138 the applicants in the consolidated actions misbehaved and they were
expelled and barred from taking the 1982 GCE 'O' Level. The panel that tried them
consisted of two people who testified as witnesses. The applicants were never formally
accused of any offence nor were they allowed to state their case.
The court held that :
1. The right to fair hearing cannot be brushed aside in the determination of the civil
rights of a citizen, except it is so specifically provided for by the law.
2. It is contrary to the principles of natural justice for a witness in a matter to sit as a

member of the investigation panel sitting in judgement over the applicants.
In GARBA & ORS. v. THE UNIVERSITY OF MAIDUGURI139, many cases dealing with fair
hearing were highlighted. In that case, the chairman of an Investigating Panel which tried
the Appellants was a Deputy Vice Chancellor of the University who was a victim of the
rampage the students were alleged to have committed. The Court went ahead to hold, per
Oputa J.S.C. that a likelihood of bias is discernible since the Deputy Vice Chancellor was not
only a witness in this panel but a judge at the same time. The Supreme Court established
that fair hearing in Nigeria is not only a common law requirement, but also a statutory and
a constitutional requirement and that when the Vice Chancellor assumed the disciplinary
powers, he became not a court but a tribunal established by law acting in a quasi-judicial
capacity. Thus he was bound to act judicially, comply with the constitutional requirements
of fair hearing and pass the qualification test to assume judicial functions.
Although, many are of the opinion that the judiciary has failed in its sacred duty as the last
hope of the common man, from the above considerations, it would be seen that the
138
Odeleye D. O The Doctrine of Natural Justice under Civil and Military Administrations in Nigeria Journal of
Politics and Law; Vol. 6, No. 2; 2013 251-240
139
(1986) JELR 42595 (SC)
68
judiciary is an indispensable factor in the defense of the observance of the principles of
natural justice and the rule of law which is an integral element that makes the observance
of natural justice possible in a civil rule.
69
4.5 Abuse of Fair Hearing by the Military Administrations in Nigeria
Since Nigeria became an independent country on the 1st October, 1960, there has been
seven Military Administrations commencing with the Military regime of General Aguiyi
Ironsi, which took power from the 16 th January, 1966 and terminating with the Military
regime of General Abdusalami Abubakar on 29th May, 1999.
Upon assumption of office, the Military promulgated the (Suspension and Modification)
Decree140, which abolished amongst other institutions, parliament and Regional
legislatures. The Decree provides in section 3 that:
The Federal Military Government shall have power to make laws for the
peace and good governance of Nigeria or any part thereof on any
matter and that the Regional Military Administration can only legislate
on matters in concurrent list with the prior permission of the federal
Military Government.141
The Decree in addition vested the executive authority of the Federal Republic of Nigeria in
the Head of the Federal Military Government 142 who may delegate his power to the Military
Governor in the regions. Sadly enough too, the fortunes of the Nigerian judiciary under the
Military was adversely affected by the combined effect of the provisions of section 1 (2) and
(6) of the Decree, after providing that the constitution shall have the force of law
throughout Nigeria, it went on to say that nothing in the constitution shall render any
provision of a Decree void to any extent whatsoever, whilst section 6 of the Decree
provided that no question as to the validity of this or any other Decree or any Edict shall be
entertained by any court of law in Nigeria.
140
Decree No. 1 of 1966.
141
Ibid.
142
Section 7; Ibid.
70
This is an outright ousting of the powers of the court. It handcuffed the court in the exercise
of its judicial powers. The response of the Nigerian courts to the above provisions of the
Decree was a mixed one. For instance, in Ogunlesi and Ors v. A.G. Federation143 two
Decrees of the Federal Military Government were challenge as ultra-vires. The Lagos state
High Court held that the unlimited legislative competence of the Federal Military
Government overrides the constitution.
In Adamolekun v. The Council of University of Ibadan 144, the Supreme Court while
holding that it could not question as ultra-vires, the federal Military Government in making
a Decree, however further held that the courts have jurisdiction to declare an Edict void, if
it is inconsistent with a Decree or the constitution. Judicial courage was more pointedly
exhibited against the Military Decree when in Lakanmi and Kikelomo v. A.g. Western
State & Ors,145 the court declared a Decree of the Federal Government as invalid.
The decision in Lakanmi’s case spurred the Federal Military Government to promulgate
The Federal Military Government (Supremacy and Enforcement of Power) Decree 146,
which amongst others asserted that the event of 15th January, 1966 was a revolution and
which by implication had changed the legal order of the country. This implicitly meant that
the Supremacy of the Constitution had been dethroned and replaced with that of a Decree.
Nevertheless, all the Military Administrations that have so far ruled the country have
common characteristics or features which were made manifest in the promulgation of
143
(1970) LD/28/69 unreported.
144
(1967) S.C. 378.
145
(1971) 1 U.I.L.R. 201.
146
(1966).
71
Decrees heavily decked with ouster clauses, suspension and modifications of the
constitution, establishment of Military Tribunals to try classified offences amongst others.
These exclusionary decrees make the principle of Natural Justice mute under the military.
72
4.6 Use of Retrospective Legislation by the Military Administration
Retrospective legislation in criminal matters is yet another feature of the military
administration which unleashes constraints on the observance of natural justice. Section
33(8) of the 1979 Constitution, now section 36(8) of the 1999 Constitution prohibits
outrightly, retrospective legislation in criminal matters and this provision cannot be
derogated from under any circumstances. For examples, section 36 (8) of the 1999
Constitution which is impari materia with the provision of 1979 Constitution provided that:
No person shall be held to be guilty of a criminal offence on account or omission

that did not at the time it took place constitute such an offence and no penalty
shall be impose for any criminal offence heavier than the penalty in force at the
time the offence was committed.147
Sadly however, most of the Decrees with penal implications enacted by the military from
the Buhari/Idiagbon regime had retroactive effects. Undoubtedly, retroactive laws
certainly infringes upon basic human rights, fundamental freedoms, the rule of law
amongst other unpalatable effects. Just as the promulgation of ad hominem148 Decrees by
the Military Administration infringes on the principles of natural justice. Ad hominem
Decrees are usually promulgated in the course of trial to secure the conviction of an
accused that is standing trial. A good case in point is the trial of Major General Zamani
Lekwot and six others in connection with the Zango Kataf disturbances. In that case, the
defense counsel, Chief G.O.K. Ajayi had filed an ex parte motion at the Kaduna High Court,
asking that the tribunal be restrained from continuing the trial until the issue of
fundamental human rights was addressed by the Supreme Court. Former President
Babangida signed Decree 55 which ousted the jurisdiction of the court in respect of
147
Section 36(8) CFRN 1999 as amended 2011
The African Guardian, Monday 22, November, p. 14. Cited in Odeleye D. O The Doctrine of Natural Justice
148
under Civil and Military Administrations in Nigeria Journal of Politics and Law; Vol. 6, No. 2; 2013 251-240
73
anything connected with the tribunal. Consequent upon the promulgation of the Decree,
the defense counsel withdrew from the case. In the end, Lekwot and others were
convicted.149
Similarly, while the action challenging the annulment of the June 12th 1993 elections was
going on in a Lagos High Court, three new Decrees were promulgated outing the
jurisdiction of the court over the matter 150. The regime of General Sani Abacha equally
denied Late Chief M.K.O. Abiola the right to be heard when it tacitly refused to appoint
Justices of the Supreme Court to make up the required number of Justices to hear Late
Abiola’s case which he instituted to challenge the annulment of the 1993 presidential
election. The Justices of the Supreme Court were not fully constituted to hear Abiola’s case
as most of the available Justices could not hear the case as there was a pending action
instituted by them against Chief Abiola’s Concord Newspaper over a libelous publication
which disqualifies them on account of possible bias. Nevertheless, the regime of General
Abacha deliberately refused to fill the vacancy in the Supreme Court as a device to frustrate
Chief Abiola’s action, which could not be heard until he died in custody in 1998.
From the foregoing, one can rightly deduce that the military administration in Nigeria
failed woefully the test of fair hearing in its administration because of its inability to uphold
the doctrine of fair hearing in administration of justice.
149
ibid
150
The African Guardian, Monday November 22, (1993) p. 21. Cited ibid.
74
CHAPTER FIVE
SUMMARY CONCLUSION AND RECOMMENDATIONS
5.1 SUMMARY
This research was carried out to evaluate the practice of the doctrine of fair hearing and
criminal justice in Nigeria. The objectives where to
6. Explain the right to fair hearing and access to natural justice;

7. Highlight the impediments to fair hearing in Nigeria;
8. Trace the origin of the doctrine of fair hearing in Nigeria;
9. Evaluate the safeguards to the application of doctrine of fair hearing in Nigeria
Judicial system.
10. Make recommendations for the improvement of the principles of fair hearing, equity
and justice in Nigeria.
The researcher adopted an analytical doctrinal approach and relied on statutes, case
laws, journals, online resources and publications. The first chapter contains the
introduction, the statement of problems, the research hypothesis and limitations and
objective of the study. In chapter three the researcher reviewed the concept of fair
hearing and criminal justice. Also the theoretical framework and other related
literature formed part of chapter two. In chapter three the researcher reviewed the
statutory provisions and constitutional guarantees for fair hearing in Nigeria. In
Chapter four the researcher evaluated the challenges of fair hearing in Nigeria. In
this chapter the researcher considered abuses on fair hearing by the executives and
judiciary in both civil and military governments in Nigeria. The consequences of
abuse of doctrine of fair hearing were also examined in this chapter. In chapter five
the researcher made a summary of the work. Conclusions were drawn and the
researcher made various recommendations on the provisions.
5.2 Conclusion
75
The principle of fair hearing as enshrined in the Constitution is often illustrated by the
“twin pillars of justice” expressed in the Latin maxim; Nemo judex in causa sua and audi
alteram partem. In other to guarantee personal liberty and principle of fair hearing, a
person who is standing trial is presumed innocent until his guilt is proved by the
prosecution. A breach of this doctrine of fair hearing in a judicial inquiry renders the action
unconstitutional, illegal and liable to be set aside.
A fair trial may also require evidence to be excluded if it was obtained in a manner that
violates other international human rights standards. The only exception to this is evidence
of abuse in a case against someone who is accused of torture or other abuse.
A person charged with a criminal offence is “entitled ....to be given adequate time and
facilities for the preparation of his defence”. It is after the person would have been told of
the charge against him that the issue of time and facilities for preparing his defence would
arise. Consequently, this aspect of fair hearing has been argued in Nigerian courts on
several occasions. The contentions have tended to centre on the request on the part of the
accused to get an adjournment in order to consult or obtain the services of a counsel or to
be able to invite witness to court for his defence. For any of these, the accused will
naturally need some time.151 This is the position of the law on fair hearing in Nigeria and
has been the position of the court as has been held in Oged Ovunwo & Anors V
Iheanyichukwu Woko & ors (supra) that "The right to fair hearing is a constitutional
right enshrined in Section 36 (1) –(12) of the 1999 Constitution. This right cannot be waived
or statutorily taken away. It entails that in the determination of his civil rights and
obligations, everyone is entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law. The basic attributes of fair hearing
include- a. That the court 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. b. That the court or tribunal gives equal treatment, opportunity and consideration to
all concerned. c. That all concerned shall be informed of and have access to such place of
public hearing. d. That having regard to all the circumstances in every material decision in
151
Gopka v. I.G.P (1961) 1 All NLR, 423.
76
the case, justice must not only be done but must manifestly and undoubtedly be seen to
have been done.”152
The rule of fair hearing is not a technical doctrine. It is one of substance. The question is not
whether injustice had been done because of lack of hearing. It is whether a party, entitled
to be heard before deciding, had in fact been given the opportunity of hearing. Once an
appellate court therefore comes to the conclusion that a party was entitled to be heard
before a decision was reached but was not given the opportunity of hearing, the order or
judgments thus entered must be set aside.
However, it is obvious that Executive lawlessness hampers the observance of the principles
of natural justice and thereby constitutes a big minus on civil administrations which one
would have expected would be adherent to the rule of natural justice. However, the
Nigerian courts has stood tall in several occasions in defence of the cause of justice by
resisting abuse of human right of fair hiring in Nigeria. The courts should not be left alone
in this noble cause. Every individual, social institutions and human right organization as
well as government institutions should join.
5.3 Recommendations
i. Criminal charges, or a person’s rights and obligations in a law suit, must be
determined by a competent, independent and impartial tribunal established by law.
Trial by military or special tribunals must comply with human rights standards in all
respects, including legal guarantees for the independent and impartial functioning of
such tribunals. If statements and other forms of evidence have been obtained as a
result of torture, ill-treatment or other forms of intimidation, they must be excluded
from evidence in all proceedings.153
ii. Independence of the judiciary is not negotiable. In this vein, it is the view of
the researcher that the Constitution of the Federal Republic of Nigeria should be
reviewed urgently to guarantee in stronger wordings the independence of the
judiciary including allocation of secured source of funding. This will help to
152
(2011) LPELR-SC.297/2005
153
See Section 29 Evidence Act 2011
77
checkmate the excessive domination, harassments and subjugation of the judiciary
by the executive arm of the government as displayed by both military and civil
administrations in Nigeria.
BIBLIOGRAPHY
BOOKS
Benét, Stephen Vincent (1864). A treatise on military law and the practice of courts-martial D.
Van Nostrand Newyork.
Bryan A. Garner (ed.), Black’s Law Dictionary, 9th Edition, West Publishing Company, U.S.A,
2004.
Bryan A. Garner (ed.), Black’s Law Dictionary, 9th Edition, West Publishing Company, U.S.A,
2004.
CONSTITUTIONAL LAW II LAW 244 NOUN COURSE MANUAL P. 56-57
H. D. Pithawalla, “Administrative Law” 79 (C. Jamnadas & Co., Mumbai, 1 st edn., 2012)
JURNALS AND PUBLICATIONS
Akpambang Enobong Mbang Fair Hearing: Sine Qua Non Under Nigerian Criminal
Justice Jurisprudence Journal of Law, Policy and Globalization www.iiste.org
ISSN 2224-3240 (Paper) ISSN 2224-3259 (Online) Vol.52, 2016
Fasheye, O.M., The African Guardian, Saturday November 13; (1993) p.
KENNETH CULP DAVIS The Requirement Of Opportunity To Be Heard In The Administrative
Process. The Yale Law Journal Vol. 51. p 1093
Nwagbara Chigozie The Role Of Fair Hearing In The Dispensation Of Justice In Nigeria - A Legal
Perspective. International Journal of Innovative Legal & Political Studies 4(4):1-10, Oct.-
Dec. 2016 pg 2.
Odeleye D. O. The Doctrine of Natural Justice under Civil and Military Administrations in
Nigeria. Journal of Politics and Law; Vol. 6, No. 2; 2013 ISSN 1913-9047 E-ISSN 1913-
9055
ONLINE RESOURCES
78
Akpambang, E M Fair Hearing: Sine Qua Non Under Nigerian Criminal Justice Jurisprudence
Journal of Law, Policy and Globalization www.iiste.org ISSN 2224-3240 (Paper)
ISSN 2224-3259 Vol.52, 2016 (Online) accessed on 2nd February, 2020.
Alexander T C, “Principles of Natural justice”

https://www.academia.edu/8782381/Trace_the_development_of_natural_justice_con
nect_it_with_legal_justice_in_the_courts_of_law_and_administrative_agencies
accessed on 12/3/2020.
Alfredsson, Gudmundur; Eide, Asbjorn (1999). The Universal Declaration of Human Rights: a
common standard of achievement. Martinus Nijhoff Publishers. pp. 225–226.
Enobong Mbang Akpambang Fair Hearing: Sine Qua Non Under Nigerian Criminal Justice
Jurisprudence Journal of Law, Policy and Globalization (online) Vol.52, 2016 pg 35
https://www.iiste.org/Journals/index.php/JLPG/article/view/32682 accessed on 12/5/2020.
https://www.quora.com/What-is-the-difference-between-legal-positivism-and-natural-law
accessed 20/7/2019.
Ikuforiji Dimeji, Fair Hearing and Its Importance In The Administration of Justice In Nigeria
Feb 3, 2016 https://www.lawyard.ng/fair-hearing-and-its-importance-in-the-
administration-of-justice-in-nigeria-by-ikuforiji/ accessed on 22/11/2019.
KENNETH CULP DAVIS The Requirement Of Opportunity To Be Heard In The Administrative

Process. The Yale Law Journal Vol. 51. p 1093
Kenneth Einar Himma Natural Law IEP https://www.iep.utm.edu/natlaw/ accessed on

20/7/2019.
Natural Law Theory http://cstl-cla.semo.edu/hhill/ui305/natural%20law.htm accessed on

20/7/2019.
NWAGBARA C, The Role Of Fair Hearing In The Dispensation Of Justice In Nigeria - A Legal
Perspective International Journal of Innovative Legal & Political Studies 4(4):1-10,
Oct.-Dec. 2016 www.seahipaj.org accessed on 11/11/2019.
Nwagbara, Chigozie The Role Of Fair Hearing In The Dispensation Of Justice In Nigeria - A
Legal Perspective.
https://www.academia.edu/33442642/THE_ROLE_OF_FAIR_HEARING_IN_THE_DISPE
NSATION_OF_JUSTICE_IN_NIGERIA_A_LEGAL_PERSPECTIVE accessed 12/05/2020
Onome Erhabor J. Concept of Fair Hearing-

hhtp://independent.accademia.edu/erhaboronome.htm OR .
https://www.academia.edu/31127716/concept_of_fair_hearing accessed
12/10/2019
79
https://www.researchgate.net/publication/301770215 accessed on 21/11/2019

https://www.researchgate.net/publication/301770215 accessed on 21/11/2019.

http://www.legalservicesindia.com/article/1528/Origin-and-Development-of-
Principles-of-Natural-Justice.html accessed on 1st November, 2019.
The Free online Dictionary https://legal-dictionary.thefreedictionary.com/fairness
80
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PRINCIPLES OF NATURAL JUSTICE AND FAIR HEARING

Table of Contents vii

Table of Statutes xii

Table of Abbreviations xii

2.1 Conceptual Framework 9

2.1.1 Concept of Fairness 10

2.1.2 The Concept of Fair Hearing 11

2.1.3 Fair Hearing and Fair Trial 12

2.2.1 The Relationship between Human Law and Natural Law. 19

2.3 Literature on the subject matter 23

2.4 Criteria and Attributes of Fair Hear 35

2.5 Ex-post Facto or Retroactive Law 38

2.6 The Consequences of Breach of Fair Hearing 39

3.1 Fair Hearing and the Nigerian Constitution 41

4.4 Abuse of Fair Hearing by the Military Administrations in Nigeria 71

SUMMARY AND CONCLUSION RECOMMENDATIONS

Adekunle v The state (2006) 43 WRN 34

Gopka v. I.G.P (1961) 1 All NLR, 423.

Constitution of the Federal Republic of Nigeria 1999 (as amended 2011)

Evidence Act 2011

The Universal Declaration of Human Rights,

of natural justice. The rights of a person in legal proceedings or quasi-judicial proceedings

Constitution of the Federal Republic of Nigeria 2011 as amended. These requirements or

ingredients of fair-hearing/natural justice have been adequately incorporated into the

The other requirements of fair-hearing are comprehensively and adequately encapsulated

modern name or term for natural justice.

1.1 Background to study

been defined as a judicial or administrative hearing conducted in accordance with due

parties in a legal process or quasi-judicial process. Audi alteram partem is a Latin

should be condemned unheard. For instance, in FEDERAL CIVIL SERVICE COMMISSION-V-

interest and bias in a case on the part of a judge.

and prospects in Nigeria.

1.2 Statement of the Problem

not be subjected to arbitrary arrest or detention. Section 36 of the Constitution of the

obligation, including any question for determination by or against any government or

recurrent experience of kangaroo justice, denial of access to justice within a reasonable, in

determination of the researcher to attempt to answer the following questions

i. What are the basic principles of the doctrine of fair hearing?

1. Explain the right to fair hearing and natural justice;

2. Trace the origin of the doctrine of fair hearing in Nigeria

3. Highlight the impediments to fair hearing in Nigeria criminal justice system;

and justice in Nigeria.

1.5 Research Methodology

articles and journals.

the body of our municipal laws.

1.7 The Scope and Limitations of the Study

examine the hindrances, inadequacies and bottlenecks in the administration of natural

justice or fair hearing in Nigeria criminal justice system.

matter. Efforts were made to define the operational concept as conceptual

the researcher examined some statutory provisions of fair hearing as provided or

Chapter five with summary, conclusions and recommendations.

1.9 Definition of terms

Fair hearing A judicial or administrative hearing conducted in accordance with due

Hearing To hear and determine the cause or matter10,

formed material contents of this chapter were also explained.

2.1 Conceptual Framework

The Doctrine of fair hearing is appropriate in the administration of criminal justice.

In legislative practice, hearing means any proceeding in which legislators or their

Fairness has also been expressed in other terms as appropriateness, balance,