The right
to fair hearing is a fundamental rule of natural justice which requires that
each party to a case must be given a clear, reasonable, and adequate notice of
the case he is to face, and be offered a reasonable opportunity to prepare and
state his case in rebuttal or contradiction of allegation or argument made
against him. This rule which is reminiscent of the old natural law principles
underlines the importance of procedural requirements in every process by which
justice is administered. Such procedural requirement must be fair in order to
be meaningful and must conform to what is known in America as the due process of law.
The first
authoritative (Judicial) pronouncement
on the doctrine
was made by an
Eighteenth century judge who traced the rule to the events in the Garden of
Edem. This was in the case of R. v.
Chancellor University of Cambridge where the court of Kings Bench declared
the decision of the University of Cambridge to be a nullity because, in
depriving Dr. Bentley of his degrees, they had not first given him an
opportunity of appearing before them and stating his case; though Dr. Bentley
had first contemptuously put aside originating process and then accused the
Vice Chancellor of the university of foolish behaviour. Delivering the judgment
of the court, Fortes cue J. declared that: “the objection for want of notice
can never be gotten over. The laws of God and men both give the party an
opportunity to make his defence, if he has any. Since this fundamental
principle of Natural justice was not observed by the university, its action was
declared to be void”.
The right
to fair hearing is constitutionally recognized
in Section 36(1) of the 1999 
Constitution,
which provides that,
in the determination
of his civil
rights and obligations including any question or
determination by or against any governments 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 a manner as to secure its
independent and impartiality.
Constitution,
which provides that,
in the determination
of his civil
rights and obligations including any question or
determination by or against any governments 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 a manner as to secure its
independent and impartiality.
The right
to be heard or fair hearing has two aspects – namely –
a)
A
reasonable and adequate notice of the charges, allegations or adverse
reflections made against a person must be brought to the knowledge of that
person in the language he understands and in sufficient details, to enable him
prepare his defence or explanation of his conduct.
b)
An
opportunity must be given to the party to present his own side of the story. In
this respect, the party must be informed or given notice of the date and place
of hearing his case, if the hearing will be oral. If it will not be oral, he
should be given sufficient number of days within which to prepare his
memorandum and submit and where necessary he should be enable to have easy
access to the files and materials he may use for references.
These
rules, in relation to the aspects of fair hearing, was reiterated by Lord
Loveburn in the case of Board of
Education v. Rice, where his Lordship said that “tribunals charged with the
responsibility of deciding issues of law and fact must act in goodfaith and
fairly listen to both sides; for that is a duty lying and upon everyone who
decides anything. They can obtain information in any way they think best,
always given opportunity to those who are parties in the controversy for
correcting or contradicting any relevant statement prejudicial to their view”.
Tribunals are therefore enjoined by the rule to listen to both sides of a
dispute before deciding the issue in dispute: Adigun v. A. G. Oyo State.
Contents of the Right to Fair Hearing
It is
noteworthy that what constitutes fair hearing, to a large extent, depends on
the facts and circumstances of a particular case and the framework of law under
which the enquiry is held. This is in tandem with the often cited speech of
Tucker, L.J. in Russell v. Duke of
Norfolk, which contemporary case law seems to adhere to when he said that
“the requirement of natural justice must depend on the circumstances of the
case, the nature of the inquiry, the rules under which the tribunal is acting
the subject matter that is being death with and so forth”. However, whatever
the circumstances, the courts are inclined to the hold that the principle of
natural justice involves the following considerations:
a.
Prior and Adequate Notice
This
attribute connotes that the parties to the dispute must be given notice of not
only the place of the hearing but also the charges to be met. The notice must
be clear and unambiguous. Absence of notice could also take the form of failure
to supply the party with particulars of the case to meet. This is illustrated
in R. v. Chancellor University of
Cambridge, supra.
Also, in Cooper v. Wandsworth Board
of Works, the Local Board
of Works had
demolished the plaintiff’s
building without any previous notice having been given to him, for his failure
to give notice to the local board of his intention to build. It was held that
although the board did exactly what the Act said they might do under the
circumstances, they acted rashly and violated the fundamental principles of
common law, that before involving a person in such a fantastic loss, they
should have allowed him a fair hearing, that is to say, according to Erle C.J.
they ought to have given notice to the plaintiff and to have allowed him to be
heard.
Also, in Adigun v. A. G. Oyo State, there was a
failure to invite a section of the family to the hearing, having invited the
others who were also interested in the result of the inquiry. The section which
was not invited went to court to have the Sole Commissioner’s report set aside.
The Supreme Court held that there was a breach of the audi alteram pattern rule and accordingly the report was a nullity.
b.
Right of Confrontation and
Cross-Examination
It does
not necessarily follow that there is a breach of the right to be heard in every
case where one is not given the opportunity to come face to face with one’s
accusers or to cross examine witnesses. It all depends on the circumstances of
each case thus confirming the fluidity and varying nature of the contents of
Natural Justice. Thus in University of
Ceylon v. Fernando, a student was suspended from all university
examinations for an indefinite period after the finding of the commission of
enquiry set up by the Vice-Chancellor to investigate the allegations that the
plaintiff had cheated in his degree examination.
Although,
the plaintiff appeared before the commission, the later questioned the
plaintiff’s accuser and other persons neither in the presence of or hearing of
the plaintiff. It was held by the Privy Council that there was no breach of
natural justice in the circumstance simply because the plaintiff was not given
the opportunity of cross- examining his student accuser; but the position would
have been different if the plaintiff had asked to be allowed to cross-examine
his accuser and had not been allowed do so.
However,
in Denloye v. Medical & Dental
Practitioners Disciplinary Tribunal, the appellant appealed
against the decision
of the Medical
& Dental Practitioners
Disciplinary Tribunal which pronounced him guilty of infamous conduct in
a professional capacity or respect and ordered the removal of his name from the
medical register. Amongst other departure from accepted procedure, the
appellant was not told the case against him; nor was the evidence taken prior
to this appearance before the tribunal made available to him. On appeal, Ade
mola CJN held that the appellant was entitled to know the nature of the
evidence given against him at Ikenne and that it was wrong to withhold this
evidence from him.
Again, in
Olaye v. Chairman, Medical & Dental
Practitioners Disciplinary Tribunal; the appellant and three others
(Medical Practitioners) were charged before the Medical and Dental
Practitioners Disciplinary Tribunal with negligence in their non-attendance to
a patient contrary to the ethics of the medical profession. The appellants
appealed that counsel to the appellants were not afforded ample opportunity to
defend the appellants at the trial, the Court of Appeal, unanimously allowed the
appeal for breach of natural justice and set aside the direction of the
tribunal to strike of the plaintiff/appellants name from the register of
medical and dental practitioners.
c.
The Nature of Hearing
The rule
of natural justice does not guarantee a right to oral hearing. It merely
demands that parties to a case should be placed on the same footing so that if
one of the parties is given oral hearing, the other must also be given the
opportunity to state his case orally. Conversely, if the hearing is to be by
written memorandum all the parties must be called upon to submit their
memoranda, provided that allegations made by the parties against the other is
brought to the attention of the other party, who must be given the chance to
state his defence thereto.
Thus, it
has long been held in Local Government
Board v. Arlidge, that an opportunity to be heard need not be oral unless
oral hearing is expressly prescribed. Accordingly, if a party has been given an
opportunity of presenting his case in an adequate manner or form and
contradicting any relevant statement prejudicial to him, the audi altarem partem rule does not
require that the proceedings should be conducted as a trial in a court of law,
with its strict rules of evidence and procedure.
d.
Legal Representation
Fair
hearing may be achieved although legal representation has not been allowed.
Much depends on the nature of hearing. Thus, in the Indian case of Baidhar Das v. State Air, it was held
that a denial of a right to legal representation was a breach of right to fair
hearing explained in the Indian Constitution. According to Misra J., it was a
disciplinary inquiry and in view of the gravity of the charges, the nature of
evidence led, the petitioner could not have cross-examined the witnesses and
supported his evidence without representation by a lawyer.
But, in Fraser v. Mudge, the Court of Appeal
refused a prisoner arraigned on charge of prison discipline the right of legal
representation even though the prison rules guaranteed him full opportunity of
hearing what is alleged against him and of presenting his own case. According
to Lord Denning, MR, if legal representation were allowed, there would be
considerable delay whereas the essence of such matters was that they must be
heard and decided quickly.
Similarly,
in Maynard v. Osmond, the Court of
Appeal refused again legal representation to a police constable on disciplinary
charge because the regulations allowed a police officer to conduct his own
defence or be represented by a member of the police force and that neither the
regulation nor the rules of natural justice conferred a right of legal
representation in disciplinary proceedings before a disciplined force as the
police. Therefore, the right to a legal representation is not an aspect of the
rule of Natural Justice in proceedings before tribunals of a quasi judicial
nature.
e.
Extra Legal Facts or Extra Record Facts
The law
is that a judge should not go out of the record of proceedings; that is to say,
information gotten from another source. But, if there is any fact which is
intended to be used, those who are to be adversely affected will be notified;
so as to afford them an opportunity to react. Thus, in Roberts v. Katagum & Ors, a senior police officer was
compulsorily retired from the Nigerian Police Service even though the
allegation of corruption against him was not proved, nevertheless the
commission acted on “some other reports of a similar nature” which had been
brought to the commissions notice and freely discussed in the police mess.
These reports were neither investigated nor shown to the plaintiff. In holding the action of the Police Service
Commission void, Taylor CJ opined that “how can a person accused of any offence
make any adequate or any defence at all to a charge made against him by an
anonymous person and/or by gossip in the police mess?
Our website contains a wealth of free, reliable legal
information. Here, you'll find information about starting and legally
maintaining a company, partnership, or sole proprietorship, as well as
information about franchises, general business law and taxation. For more on
business law, see the links on http://www.legalemperors.com.
© Onyekachi
Duru Esq and www.legalemperors.com, 2016 (All Rights Reserved). Unauthorized use and/or
duplication of this material without express and written permission from this
site’s author and/or owner is strictly prohibited. Excepts and links may be
used, provided that full and clear credit is given to Onyekachi
Duru Esq and www.legalemperors.com with
appropriate and specific directions to the original content.
The post you have just read and indeed all other posts
emanating from http://www.legalemperors.com contains
general legal information and does not contain legal advice. http://www.legalemperors.com is not a law
firm or a substitute for a lawyer or law firm. The law is complex and changes often.
For Legal Advice, please ask a Lawyer
JOIN OUR E-LEARNING PROGRAMME
DEBT RECOVERY
BUSINESS & CORPORATE SERVICES
TAX SERVICES
REGULATORY COMPLIANCE
DEBT RECOVERY
BUSINESS & CORPORATE SERVICES
TAX SERVICES
REGULATORY COMPLIANCE