The Right to Fair Hearing and the Criminal Process Under Nigeria Law


The Right to Fair Hearing and the Criminal Process Under Nigeria Law


It is a cardinal principle in the administration of justice that justice should not only be done but should manifestly and undoubtedly be seen to be done. This is very fundamental in adversarial or accusatorial system or procedure practiced in Nigeria. Hence, prior to and during the trial in a court of law or tribunal, of any person charged with the commission of a crime, the Constitution of the Federal Republic of Nigeria, 1999 (hereinafter called, “The 1999 Constitution”), the Administration of Criminal Justice Act 20152 and other relevant statutes have made elaborate provisions to safeguard a fair trial. A trial which does not conform to the tenets of these requirements cannot be said to have passed the litmus test for fair trial.
Section 36(1) of the 1999 Constitution boldly asserts that in the determination of his civil right and duties, including any question or decision by or against any government or authority, a person shall be eligible to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such a way as to secure its independence and impartiality. With regard to criminal matters, sub-section 2 of section 36 provides that a person charged with a criminal offence, unless the charge is withdrawn, is entitled to a fair hearing within a reasonable time by a court of law. Fair hearing is therefore, antithetical to partiality and bias. Although, the 1999 Constitution does not define the term, “fair hearing,” yet the courts of law have proffered some judicial definitions to it. For instance, in Ezechukwu v. Onwuka, the Court of Appeal pointed out that:
Fair hearing is a hearing which is fair to all parties to the suit, whether the plaintiff, 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…. Thus, fair hearing is synonymous with fair trial and implies that every reasonable and fair-minded
Thus, fair hearing is synonymous with fair trial 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. Commenting on the relationship between fair hearing and fair trial, the Supreme Court in Mohammed v. Kano Native Authority 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.”The essential attributes and basic criteria of fair hearing include, inter alia:

  • 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;
  • that the court or tribunal shall give equal treatment, opportunity, and consideration to all concerned;
  • 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;4 and
  • 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

LAW PROJECT TOPIC:The Right to Fair Hearing and the Criminal Process in Under Nigeria Law

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 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.


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