CONCEIT OF FAIR HEARING UNDER THE NIGERIAN LAW

Abstract:

Justice and fairness is the basis of the relationship between government and its citizens. It is in fact the pivot around which all civilised social existence revolves. History has taught man that in restive moments and times of social stress the quest for justice assumes greater dimension and significance. Presently, most developing societies, such as Nigeria, are passing through these restive moments. These societies are continually engaged in the search for a viable polity wherein justice and fairness shall rein supreme. The task has been made more daunting in a situation where coup de etats, sudden and frequent change of governments have become endemic. The not result, therefore, is that the citizen is aflicted with a feeling of impotency and hopelessness regarding the assertion of his fundamental rights. This is precisely the juncture at which law should step in to play its role of social engineering by balancing conflicting social interests. The province of governmental executive action must be legally and precisely defined vis-a-vis the citizens’ fundamental rights. In this regard, the concept of fair hearing, as a universal standard of morality in public affairs should serve as a reference point. The efficacy of the concept of fair hearing lies in the fact that it is available to the guilty as well as the innocent citizen. Even a condemned armed robber is entitled to a fair trial under the law. This being the case, it is the more necessary that the citizen and all concerned with public affairs should understand what the concept of fair hearing entails and its rules embody. This thesis should therefore be regarded as a modest attempt in this direction. In line with the title of the thesis tho method of presentation is one in which the whole corpus of Nigerian Law, Constitutional, Statutory nd Case law is examined to determine the extent to which the Concept of fair hearing is reflected in thoir operation, using the previsions of section 33 of the 1979 Constitution of the Federal Re public of Nigeria as the point of reference. Chapter One deals with the nature, scope and underlying objectives of fair hearing. No attempt will be made to offer any general definition of the Concept of fair hearing. Rather a descriptive analysis of the principle embodying the Concept is prefered. This is in realisation of the inherent limitations a generalised defintion suffers from. In Chapter Two attempt is made to trace the origin and development of fair hearing. The philosophical background as well as the Common Law origin of fair hearing is described. Its modern development and recognition in municipal as well as International Law as a fundamental right is demonstrated y reference to some modern Constitutions and International Conventions. The intention here is to highlight the Universal nature of the Concept as a principle of morality. Chapter Three discusses the application of fair hearing in civil proceedings in Nigeria. An indepth analysis of section 33 of the 1979 Constitution of the Federal Republic of Nigeria is made. The emphasis hore is to demonstrate the efficacy of the application of the Concept by reference to decided cases. Principles that facilitate the actualisation of the Concept such as lucus standi and independence of the judiciary are also discussed in this Chapter. The last part of the Chapter discuses fair procedure and its requirements. The application of tho Concept of fair hearing in Criminal Proccodings in Nigeria is examined in Chapter Four. The provisions of section 33 in relation to Criminal trial as well as the various provisions of the Criminal Procedure Code and Criminal Procedure act pertaining to fair trial are thoroughly examined with reference to decided cases. To this end, the Chapter is dividud into two parts. Part I deals with ‘Fairness of Substantive Criminal Law1, while Part II deals with the requirements of ‘Fair Trial’. Throughout this Chapter the d isc uss ion centred around the provisions in subsections 4 to 13 of Section 33 of the 1979 Constitution of the Federal Republic of Nigeria. In this Chapter the relevant provisions of the Evidence Act have also been examined. Chapter Five discusses the application of fair hearing in administrative proceedings. The decision making processes of administrative authorities, government and public functionaries arc examined in order determine the extent to which the requirements of fair hearing are complied with. There are circumstances in the adjudicatory process where the rules of fair hearing do not apply. For instance, it is a requirement of fair hearing that trials are hold in public. But this requirement may be waived in a situation where the principle of ‘State Privilege’ applies. Also in a Contempt proceedings, some requirements of fair hearing may not be strictly observed. All these are regarded as exceptions to the rules of fair hearing. They are discussed in Chapter Six. Also discussed in this Chapter is the general restrictions on Fundamental flights in Section 41 of the 1979 Constitution of tho Federal Republic of Nigeria to see the extent to which the provisions of section 33 of the same Constitution are affected by those restrictions. Chapter Seven discusses the Concept of fair scaling under the Military regime. attempt is herein made to examine tha extent to which the rules of fair hearing are observed in a revolutionary situation such as exists in a military regime. Legislative activities of Nigerian Military refines are examined to see the extent to which fair hearing, as a democratic Concept, is reflected in the various decrees and edicts tho Military enacted. Of far greater interest is the analysis of the composition and adjucatory procedure of the Special Military Tribunals that are tho feature of all Military regimes in this country. Can their procedure ensure a fair trial to the accused person? To what extent are the provisions in Section 33 of the 1979 Constitution of the Federal Republic of Nigeria observed by the Military Tribunals? These and other questions have been examined in this Chapter. Chapter Eight deals with tho Conclusions reached as a result of our discussion of the various issues highlighted in relation to the application of the Concept of fair hearing under the Nigerian Law. This is rather a summary of the major observations made regarding the application of the Concept of fair hearing in Nigeria.