Under section 36(1) of the 1999
constitution, it is guaranteed that in both civil and criminal proceedings a
person is entitled to fair hearing within a reasonable time before a court or
other tribunal established by law. A person’s right to fair hearing is
guaranteed at all times including where the question or issue for determination
is by or against any government or authority. The tribunal or court seized of
this civil or criminal proceedings shall be “constituted” in such a way as to
secure its independence and impartiality”. The supreme court in ISIYAKU
MOHAMMED V. KANO NATIVE AUTHORITY, proposed that the litmus test
whether the right to fair hearing had been satisfied is predicated upon the impression of a reasonable present at he trial, whether from his observation
justice has been done in the case. The right to fair hearing is the cornerstone
of justice. Constitutionally and from the body of judicial decision, the right
to fair hearing is rooted in the twin pillar of justice which is that:
i.
a
person should be given ample and full opportunity of presenting his own side of
a matter (audi alteram partem rule). LS.D.C/V FOREIGN FINANCE CORPORATION, the
court of appeal held that when a governor or his officials is acting under
section 28 of the land use act to revoke the right of occupancy of a land
holder, the governor or his official must, as a condition precedent, give the
affected person fair hearing as guaranteed under section 33 of the 1979
constitution before the rights is revoked. Where there is no such hearing, the
revocation is unconstitutional, null, void and of no effect whatsoever.
ii.
To
secure the independence and impartiality of the adjudicating tribunal or court,
it is also a rule of fair hearing that an accuser should not sit as a judge in
his own case or matter (nemo judex incausa sua rule). In LEGAL PRACTITIONERS
DISCIPLINARY COMMITTEE V. GANI FEWEHINMI, the Supreme Court eloquently restated
the essence of the nemo judex principle. In that case, Gani fawehinmi, a legal
practitioner was under investigation by the legal practitioners disciplinary
committee for some alleged professional wrong doings. The attorney-general of
the federation was the chairman of the committee and was the one who made
complaints against Gani Fawehinmi to the committee. Three other members of the
legal practitioners disciplinary committee had criticized him at a Nigerian bar
association executive meeting. On appeal to apex court, it was held that fair
hearing is meant to include the observance of the rules of natural justice.
That the court or tribunal must not only be unbiased, it must also not place
itself in a position in which it may appear that there is likelihood of bias.
ESO, JSE held that it was pertinent from the action of the attorney-general in
the case that he is not only a judge in his owe case. In effect, the
attorney-general was not only the complainant, prosecutor and judge but also
heavily biased against the respondent (Gani Fawehinmi).
In another interesting case of GARBA
AND 8 OTHERS V. UNIVERSITY OF MAIDUGURI, the deputy vice-chancellor whose house
was one of those burnt down during a students riot at University of Maiduguri
was the head of investigation panel set up by the University to investigate the
riot. The appellants were some of the students expelled as a result of the
findings of the panel. The Supreme Court held that a case of bias exists as the
deputy vice-chancellor was a complainant; a persecutor and a judge in his own
case. Thus, the absence of fair hearing was held to have vitiated the decision
of the panel.
Another
important constitutional provision safe-guarding the right to fair hearing is
the requirement that justice should not only be done, but should manifestly be
seen to have been done. Thus all civil and criminal proceedings including their
judgment shall be held in public except where the interest of defence, public
safety morality, order, otherwise dictates. Public hearing may not be allowed
if the person affected thereby is below the age of eighteen years.
Where a person is charged with a
criminal offence, he shall among other things be presumed innocent until he is
proved guilty.
This is provided in section 36(5) of
the 1999 constitution.
The
constitution makes provision for elaborate procedural safeguards in respect of
criminal matters. Hence, under section 36(6) every person charged with a
criminal offense shall be entitled:
a.
to
be informed promptly in the language that he understands and in detail of the
nature o the offense;
b.
to
be given adequate time and facilities for the preparation of his defense
c.
to
defend himself in person or by a legal practitioner of his choice;
d.
to
examine in person or by his legal practitioner the witnesses called by he
prosecution before the court and to
obtain the attendance and carry out the examination of witnesses, to testify on
his behalf before the court on the same conditions as those appllying to the
witness called by persecution; and
e.
to
have without payment the assistance of an interpreter if he cannot understand
the language used at the trial of the offense.
Section 36(8) excludes retroactive and retrospective
criminal legislation while section 36(12) prescribes unequivocally that “a
person shall not be convicted of a criminal offense unless that offense is
defined and the penalty is prescribed in a written law”. An accused person may
elect to remain at trial and this must not draw adverse comments from the
persecution. This is because under section 36(11) no person who is for a
criminal offense shall be compelled to give evidence at the trial.
RELATED INFORMATION