CONSTITUTIONAL LAW – BREACH OF RIGHT TO FAIR HEARING – Test of fairness/fair hearing in proceedings and effect of lack of fair hearing in proceedings; whether a party who had an opportunity of being heard but did not utilize it can bring an action for breach of fair hearing


“The law is quite settled that a complaint of lack of fair hearing will only avail a party where he is able to show that he was denied the opportunity of presenting his case. Whether or not he was denied fair hearing depends on the facts and circumstances of the case. It has been held in several decisions of this Court that the crucial determinant of whether or not a party has been denied fair hearing is whether the parties were afforded an equal opportunity to present their case before judgment is delivered. The Court will take an objective view of the entire proceedings. The true test of fair hearing is the impression of a reasonable man present at the trial and whether from his observation, justice has been done in the case. See: Mohammed Vs Kano Native Authority (1968) 1 ALL NLR 424; Akaninwo Vs Nsirim (2008) 1 SC (Pt. III) 151; Otapo Vs Sunmonu (1987) 2 NWLR (Pt. 58) 587 @ 605. The effect of a breach of the right to fair hearing is that the entire proceedings and any judgment or order made therein become a nullity. See:Audu Vs F.R.N (2013) LPELR – 19897 (SC) 13; Akinfe Vs The State (1988) 3 NWLR (Pt. 85) 729; Bamgboye Vs University of Ilorin (1999) 10 NWLR (Pt. 622) 290. Conversely, it has been held severally, that where the Court creates an enabling environment for the parties to ventilate their grievances, either in the prosecution or defence of their case, the failure of a party to take advantage of such conducive environment cannot be the basis for a complaint of lack of fair hearing. See Mfa & Anor Vs. Inongha (2014) 1-2 SC (Pt. 1) 43; Inakoju Vs. Adeleke (2007) LPELR – 1510 (SC). In the instant case, the facts show that the appellant was represented by counsel throughout the proceedings. The respondent’s witness, pw1 was in Court and available for cross-examination on several dates to which the case was adjourned. The witness could not be cross-examined owing to the absence of the appellant’s counsel. After several adjournments, the prosecution’s application to foreclose the right of cross-examination by the defence counsel was granted. The appellant subsequently changed his counsel. At the resumed hearing on 30/4/2013, the new counsel sought an adjournment to enable her study the case file and prepare for the trial. The request was granted. On the adjourned date, 14/5/2013 being fully seised of the matter, the learned counsel did not seek to re-call the PW1 for cross examination. She merely informed the Court that the defence was ready to proceed. Clearly, from the above scenario, the appellant had every opportunity to cross-examine PW1, but failed to make use of the opportunity. The lower Court as well as the trial Court were right to reject the complaint of denial of fair hearing. It was not made out.” Per. KEKERE-EKUN, J.S.C. in FEMI AYOADE v. THE STATE (2020-LCER-39149-SC) (Pp. 30 – 33).

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