Fair Hearing

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FAIR HEARING

(1) ADDRESSES OF COUNSEL

1. Failure of Judge to grant counsel right of address.

“In the same breath, failure of the learned trial Judge in allowing both learned counsel

to exercise their right of addresses according to the rules before proceeding to de-

liver judgment, is another breach of fair hearing to the affected parties, there is the

need to hear all parties. See: Prince Yahaya Adigun & 2 Ors. v. The A-G. Oyo

State & 18Ors. (1987) 3 S.C.N.J. 118; (1987) 1 N.W.L.R. (Pt. 53) 678.” - Per

Okunola, J.C.A. in Duba v. Saleh Suit No. CA/K/35/95; (1997) 2 N.W.L.R. (Pt.

488) 502 at 508.

(2) ADJUDICATION OF MATTERS WHERE EVIDENCE RELEVANT TO

PROCEEDINGS IS BROUGHT BEFORE A COURT

2. Court’s duty where existence of evidence relevant to its proceedings is

brought to its notice.

“It is not in dispute – and the proceedings for 13/7/88 bear this out, that in ruling on

the plaintiff’s motion to dismiss defendants’ appeal, the counter-affidavit filed by

them was not considered. The fact of the existence of that counter-affidavit was

brought to the notice of the Court by learned counsel for the defendants. The Court

below at the stage ought either to adjourn the proceedings on terms in order to have

the counter-affidavit placed before them for consideration along with the plaintiff’s

affidavit evidence before ruling on the motion or call for it that morning and consider

it along with the affidavit in support of the motion.” – Per Ogundare, J.S.C. in Ekiyor

v. Bomor Suit No. S.C. 186/1989; (1997) 9 N.W.L.R. (Pt. 519) 1 at 10.

(3) APPLICATION FOR INTERLOCUTORY INJUNCTION

3. When an applicant is given a fair hearing.

“I think it was sufficient that the defendant had been served with the writ of sum-

mons and the application for the interlocutory injunction. The fact that he defaulted in

entering an appearance by filing a memorandum of appearance cannot deprive the

Court of jurisdiction to entertain the application. The memorandum of appearance is

simply to indicate that the suit will be contested. But the application for an interlocu-

tory injunction following the service of the writ of summons is another Court process

which will succeed or fail on its merit and not on whether a memorandum of appear-

ance has not been entered even though it is undisputed that the defendant has been

served both processes: see Dike v. Union Bank Ltd. (1987) 4 N.W.L.R. (Pt. 67)

958.

Addresses of counsel Paras. 1-3

Paras. 3-5 Vol. 11: FAIR HEARING 2

The defendant now wishes to rely on his own default in entering an appear-

ance in time to the suit nor filing a counter affidavit to the application for the inter-

locutory injunction to contest the validity of the proceedings relating to the interlocu-

tory injunction. He says he was not given fair hearing. He is, in my view, attempting

to give a new meaning to fair hearing or a reasonable opportunity to be heard. His

counsel was in Court. He proffered some argument albeit unrelated to the application

before the Court and without a counter affidavit. Then he asked for an adjournment

which was duly refused. He conceded he had no further argument. The defendant in

the circumstances was given a fair hearing or at any rate a reasonable opportunity to

he heard. He cannot benefit from his own deliberate default.” - Per Uwaifo, J.C.A.

in Ita v. Nyong. Suit No. CA/E/81/92; (1994) 1 N.W.L.R. (Pt. 318) 56 at 72 - 73.

(4) ATTRIBUTES OF FAIR HEARING

4. Criteria and attributes of fair hearing.

“The basic criteria and attributes of fair hearing include (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. (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 manifestly and undoubtedly be seen to have been done. See

Katoye v. Central Bank of Nigeria (1987) 1 N.W.L.R. (Pt. 98) 419; Adigun v.

Attorney General Oyo State (1987) 1 N.W.L.R. (Pt. 53) 678; Deduwa v. Okorodudu

(1976) 10 S.C. 329; Adigun v. A-G. Bendel (1988) 2 N.W.L.R. (Pt. 75) 201;

Okoduwa v. The State (1988) 2 N.W.L.R. (Pt. 76) 333.” - Per Tobi, J.C.A. in

Onagoruwa v. I.G.P. Suit No. CA/L/318/88; (1991) 5 N.W.L.R (Pt. 193) 593 at

640.

5. Test for fair hearing.

“Whether a party in a case has got fair hearing or fair trial depends upon the impres-

sion of a reasonable person or dispassionate visitor who was present at the trial;

whether from his observation justice has been done to the parties in the litigation that

he watched. See generally Mohammed v. Kano Native Authority (1968) 1 All N.L.R.

424; Alhaji Gaji v. The State (1975) 5 S.C. 61, Omoniyi v. Central Schools Board

(1988) 4 N.W.L.R. (Pt. 89) 448.” - Per Tobi, J.C.A. in Onagoruwa v. I.G.P. Suit

No. CA/L/318/88; (1991) 5 N.W.L.R (Pt. 193) 593 at 640.

Audi alteram partem

3 Paras. 6,7

(5) AUDI ALTERAM PARTEM

6. Anybody exercising a judicial function has the duty to observe natural

justice.

(1) “I turn now to the second submission, that the evidence shows that each order of

deposition was made after due inquiry or at least does not establish that it was not so

made. By due inquiry is meant an inquiry conducted in the manner and according to

any procedure specifically prescribed by law for it or, in the absence of any such

specific prescription, an enquiry conducted in accordance with the requirements of

natural justice.

The latter requirement permits an inquiry to be conducted in such manner as is

best suited to its object and subject matter and to the circumstances of the case,

provided that all of the following rules are observed: - (a) A person who may be

adversely affected by any decision based on the inquiry must be informed: that he

may be so affected; of the way in which he may so affected; and of the substance of

the complaint against him, or of the grounds upon which he may be so affected, with

sufficient particularity as will enable him to answer them if he can. (b) Such person

must also be informed of all relevant evidence or statements adduced in support of

the complaint or grounds alleged against him. (c) Such person must be given a fair

opportunity to make a statement relevant to the inquiry and to correct or controvert

any relevant statement or report adduced to his prejudice. (Ceylon University v.

Fernando (1960) 1 W.L.R. 223 at 231 – 3) and the quotations therein from other

authorities: Kanda v. The Government of Malaya (supra). Those requirements are

not satisfied if the person likely to be affected merely participates in the inquiry as, or

in a role analogus to, a witness and not as a person likely to be affected, (The Seistan

(1960) 1 W.L.R. 186 P.D.) or, although he participates in the inquiry as a person likely

to be affected, the inquiry finds against him on a substantially different or more seri-

ous charge or ground to that of which he had notice as being the subject of the

inquiry. (Annamunthodo v. Oilfield Workers Trade Union, supra).” - Per Charles,

J. in Queen v. The Administrator – in - Council, Western Nigeria, and Anor. Suit

No. AB/8/62; AB/9/62; AB/10/62; (1962) W.N.L.R. 313 at 316.

(2) “With reference to the second question, whether the Governor - in - Council is

bound to act judicially in making a determination under Section 22, it is important to

recognise that there is a presumption that when the legislature confers a power on an

authority to make a determination affecting an individual in his property or person, it

intends that the power shall be exercised judicially in accordance with the rule of

natural justice that the individual concerned must be given an adequate opportunity to

be heard.” - Per Charles, J. in Queen v. The Governor in Council, Western Nige-

ria, ex parte Adebo Suit No. AB/37/61; (1962) W.N.L.R. 93 at 98.

7. Can undefended list procedure violate rules of fair hearing?

“It was also argued for the appellant on this issues that the learned trial Judge did not

hear the parties and their counsel before proceeding to judgment. This argument is

not supported by the record of this appeal which shows that the learned counsel on

both sides were duly heard on 18/12/89 before judgment was delivered on 12/1/90. In