CONSTITUTIONAL LAW – RIGHT TO FAIR HEARING – 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 issue left for determination of this appeal is: 1. Whether the Court of Appeal was right in affirming the judgment of the trial Court wherein the trial Court foreclosed the Appellant’s right to cross-examine PW1, the Respondent’s sole witness. The PW1 has presented himself to be cross-examined unlike what the Appellant alleges. The horse has been taken to the river for a drink but you can’t force it to drink the water. This was pathetically the case of the Appellant. The facts at play show that on 31/1/2012, the Appellant’s Counsel could not cross-examine PW1 due to medical problem he had to attend to. Similarly, on 31/1/2013, PW1 was available for cross-examination but the Appellant’s Counsel was unavoidably absent. After a caveat from the Court to discharge PW1 and foreclose the Appellant’s right to cross-examine the PW1 on the next adjourned date, the Appellant’s Counsel was surprisingly absent again on 6/3/2013 when PW1 present himself for cross-examination. This is not the case of denial of the right to fair hearing but refusal to avail same or the waiver thereof. The appellant who, by his own deliberate decision, mis-judgment or inadvertence fails to avail himself of the opportunity of a hearing, cannot later be heard complaining that he was deprived fair hearing. A party cannot and should not complain of breach of his right of fair hearing where he refused to avail himself, as on this instant case, of the opportunity provided under the law to present his case. See Per SANUSI, JSC in DARMA V. ECO BANK (2017) LPELR- 41663(SC). It rather goes the other way round that when a party completely refuses or fails to cross examine a witness as in this case, such a party will be deemed to have accepted the testimony of the said witness. See Per OGUNBIYI, J.S.C in ALI v. STATE (2015) LPELR-24711(SC).” Per. ABBA AJI, J.S.C. in FEMI AYOADE v. THE STATE (2020-LCER-39149-SC) at p. 34 – p. 35.

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