Description
ABSTRACT
During a fair hearing, authority is exercised according to the principle of due process of law. Fair hearing means that an individual will have an opportunity to present evidence to support his or her case and to discover what evidence exists against him or her.In CriminalLaw, when an individual is a rested, a fair hearing means the right to be notified of the charge being brought against him or her and the chance to meet that charge. This research evaluates fair hearing as a fundamental principle of human right, its historical origin, applicability and basic challenges in Nigeria legal system. This right encompass the twin pillars of natural justice, viz, (a) Audi alterem Partem and (b) Nemo Judex in causa sua and forms the bedrock of every civil and criminal proceedings. Fair hearing requires that a person must be given not only an opportunity but a fair opportunity to cross- examine her accusers and to defend himself before a competent, independent and impartial tribunal established by law. This fundamental human right of the citizen is sacrosanct certain and secured by the provisions of the Constitution of the Federal Republic of Nigeria 1999 as amended in Section 36(1) which provides that “in the determinations 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 a manner as to secure its independence and impartiality[1]. This provision is in tandem with Article 14 of International Covenant on Civil and Political Right. The researcher adopted a doctrinal research method by review of relevant statutory provisions and case laws as well as legal publications, international conventions, journals research reports published by various scholars on the subject matter. Inspite of these legislative provisions on principles of fair hearing in the constitution and other extant laws in force, excessive abuses of human rights and pre-trial detentions have persisted in Nigeria, during military and even civil rule, often due to the blatant violation of the provisions of the law by the government agencies. It is recommended that an urgent review of the constitution of Nigeria has become necessary to ensure the independence of the judiciary. This will go a long to curb the excessive abuse of human rights by the executive.
TABLE OF CONTENTS
Content
Title Page
Certification
Declaration
Dedication
Acknowledgement
Abstract
Table of Contents
Table of Cases
Table of Statutes
Table of Abbreviations
CHAPTER ONE
INTRODUCTION
- Introduction
- Background of the Study
- Statement of Problem
- Research Questions
- Aims and Objective of the Study
- Research Methodology
- Significance of the Study
- Scope and Limitations of the study
- Synopsis
- Definition of terms
CHAPTER TWO
LITERATURE REVIEW
2.0 Introduction
2.1 Conceptual Framework
2.1.1 Concept of Fairness
2.1.2 The Concept of Fair Hearing
2.1.3 Fair Hearing and Fair Trial
2.1.4 The Concept of Justice
2.2 Theoretical Framework
2.2.1 The Relationship between Human Law and Natural Law.
2.3 Literature on the subject matter
2.4 Criteria and Attributes of Fair Hear
2.5 Ex-post Facto or Retroactive Law
2.6 The Consequences of Breach of Fair Hearing
CHAPTER THREE
STATUTARY PROVISIONS FOR FAIR HEARING IN NIGERIA
3.0 Introduction
3.1 Fair Hearing and the Nigerian Constitution
3.2 Conclusion
CHAPTER FOUR
CHALLENGES OF FAIR HEARING IN NIGERIA
4.1 Introduction
4.2 Colonial Background of Nigerian Legal System
4.3 Abuse of Principles of Fair Hearing and Natural Justice by the Executives in Nigeria
4.4 Abuse of the Doctrine of Natural Justice by the Judiciary
4.4 Abuse of Fair Hearing by the Military Administrations in Nigeria
4.5 Use of Retrospective Legislation by the Military Administration
CHAPTER FIVE
SUMMARY AND CONCLUSION RECOMMENDATIONS
5.1 Summary
5.2 Conclusion
5.3 Recommendations
Bibliography
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
- v. Cambridge University (1723) 1 St 557
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
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
CHAPTER ONE
INTRODUCTION
- Introduction
In the determination of any criminal charge against a person, or of a person’s rights and obligations, everyone shall be entitled to a fair hearing by a legally constituted competent, independent and impartial judicial body. Fair Hearing is an act of given an opportunity to be heard and that one will not be a judge in his own case. 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.[2] 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.
- Background to study
The renowned Jurist Lord Denning[3] 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.[4]
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 party[5]. It is a principle of natural justice and no one should be condemned unheard. For instance, in FEDERAL CIVIL SERVICE COMMISSION-V-LAOYE[6] 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[7]. 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. 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
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 supposed 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.[8] 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 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 one’s 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.
1.3 Research Questions
This research work will seek to answer some of the 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
- What are the basic principles of the doctrine of fair hearing?
- How does the constitution of the Federal Republic of Nigeria guarantee this doctrine and the right of fair hearing?
- 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 main aim of this study is to critically evaluate the doctrine of fair hearing in Nigerian and unravel their challenges. Specifically, the study seeks:
- To explain the right to fair hearing and natural justice;
- To trace the origin of the doctrine of fair hearing in Nigeria
- To highlight the impediments to fair hearing in Nigeria criminal justice system;
- To evaluate the safeguards to the application of the doctrine of fair hearing in Nigeria Judicial system.
- To 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), 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.
1.6 Significance of the Study
The study will serve as a means of evaluating 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 work will clarify the benefits, prospects and challenges of the application of doctrine of fair hearing in Nigeria legal system. The study 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
This 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 project organisation
The research is organized as follows: In Chapter one, the introduction, the researcher presented the problems, research objectives, research questions and relevance and scope of the 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.[9]
Fairness The quality of making judgments that are free from discrimination.[10]
Hearing To hear and determine the
[1] Section 36(1) Constitution of Federal Republic of Nigeria 1999 as Amended
[2] Section 36 CFRN 1999 as amended 2011.
[3]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.
[4] Bryan A. Garner (ed.), Black’s Law Dictionary, 9th Edition, West Publishing Company, U.S.A, 2004. 789
[5] NWLR (Pt.106) 652 (1989) All N.L.R 350 (1989) 4 S.C. (Pt 11) 1
[6] (2 NWLR (Pt.106) 652
[7] Paul Jackson: Natural Law (1973) pp. 1-2
[8] Section 36 (1) CFN 1999 as Amended
[9] Vocabulary.com Dictionary https://www.vocabulary.com/dictionary/fairness
[10] Vocabulary.com Dictionary https://www.vocabulary.com/dictionary/fairness
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