By Oluwapelumi Mojolaoluwa Mofoluwawo, LLB, LLM(UK)

Fair hearing is a fundamental principle of procedural justice which ensures a person’s right to be heard before a decision affecting them is made. It enlists an individual as an integral part of the decision-making process that affects their rights, interests or legal status. Fair hearing is the cornerstone of the justice system as it ensures fairness, due process and impartiality. It has several features but rests on two main legs: audi alteram partem- hear the other party out, and nemo judex in causa sua- no man can be a judge in his own case. Fair hearing ensures impartiality, transparency, and accountability in administrative, judicial, and quasi-judicial proceedings.

The most important features of fair hearing are as follows:

Right to be Heard: a person must be given opportunity to defend themselves or to answer the case against them.

Impartiality: The umpire or judge in any matter must be unbiased and independent in judgment.

Due Notice: a person must be informed of the case against them and given ample time to prepare a defence.
Opportunity to Defend: a person must be allowed adequate facilities and opportunity to challenge evidence against them and present their own evidence- both orally and documentarily; and to call witnesses in support of their case.

Public Hearing: Proceedings in any matter must be open to the public to ensure transparency.

Right to Legal Representation: In judicial proceedings especially, a person is entitled to legal representation of their choosing.

Ratio Decidendi: The adjudicator must provide clear reasons for their decision.

Fair Hearing is important because it prevents arbitrary decisions and ensures justice. This secures the rights of every citizen high and low, promotes trust in the legal system and holds decision-makers accountable.

In Yesufu Amuda Garba & Others v The University of Maiduguri (SC.24/1985) [1986] NGSC 12, a group of students (appellants) were expelled from the University of Maiduguri for their alleged participation in a riot. They claimed they were denied a fair hearing by the University’s disciplinary process and therefore filed for the enforcement of their fundamental human rights according to S33 of the 1979 Constitution, before the Borno State High Court.

What Really Happened

The appellants were students in various disciplines in the University of Maiduguri, the respondent, before their expulsion from the said institution with effect from the 30th day of March, 1983. Their expulsion was sequel to the riotous behaviour of about 500 students in the University on the 2nd day of February, 1983 at about 9.00 p.m., followed by demonstration rampage, wanton destruction of properties in the University and assaults on persons. Their expulsion was not till after the Senate had considered the reports of the Disciplinary Board and Panels set up on the 9th day of February, 1983 by the Vice-Chancellor to investigate the said students’ rampage of 2nd February, 1983. The Senate noted that out of a total of four thousand students, only about five hundred students’ went to the residential area and only less than one hundred students took part in the destruction, arson and the looting. Senate also observed that from the pattern of arson and destruction, the intention of the perpetrators of the ghastly incident was far more sinister than the atrocities they were able to commit. It concluded that it was a carefully planned but hurriedly executed insurrection. Following their expulsion, the appellants initiated in the High Court of Justice of Borno State of Nigeria, Maiduguri Judicial Division at Maiduguri, the proceedings which led to the appeal by respondent to the Court of Appeal and a further appeal by appellants against the decision of the Court of Appeal to the Supreme Court. The proceedings initiated were for the enforcement of their fundamental rights and the procedure adopted was that laid down under and by the Fundamental Rights (Enforcement Procedure) Rules, 1979.

The students’ contention at the High Court can be summed up as follows:

Arson, assault, wilful destruction and looting are crimes, and only a court of law can find a person guilty of a crime and punish accordingly, not an investigating panel as in this case.
They all had alibis which they claimed before the panel, but which was never investigated. An alibi is a defense in law which contemporaneously places the accused person/defendant at a different place when the offence was committed. When verified and found true, it is a complete defense to crime.
That they were not allowed to call witnesses of their own, nor were they allowed to cross examine the witness of the University, before the panel.
The DVC ought not to have been on the panel, as a victim of the rampage himself.
Anyone charged with a crime must be tried according to s33 of the 1979 Constitution (right to fair hearing) and the rules of natural justice.
Crime under the Nigerian law is different from misconduct under University laws. A court must try a crime while the University can punish misconduct.
The High Court held in favour of the students (then claimants). It ruled that the students rights were infringed and their expulsion violated their right to fair hearing. The court ordered the students be re-admitted to the University and to be treated as other students who were only made to pay N160 for the damage caused during the rampage. The University was displeased with this judgment, and so it appealed the decision.

At the Court of Appeal, the University’s appeal was unanimously upheld. On the core issue of whether the students were denied a fair hearing during the disciplinary process, the Court of Appeal while agreeing that the High Court has the jurisdiction to address fair hearing violations, concluded that there was no evidence of bias in the disciplinary process. It also found that the High Court exceeded its authority by ordering the students’ reinstatement instead of remanding the case for a fair hearing. The Court of Appeal set aside the lower court’s decision and ordered the students to abide by the University’s disciplinary process. Importantly, the Court of Appeal also noted that Universities have autonomy in student matters, and courts should respect this. The students were dissatisfied with this decision and so they went on to the Supreme Court.

At the Supreme Court, the students insisted that they were not allowed to present witnesses or challenge accusations against them. Also, the affidavits deposed to by the students and those of University contradicted each other. While the students all swore to have been elsewhere during the rampage, the University swore that they partook in the rampage. While the students swore that they were not allowed to call their own witnesses, the University swore that they were all given opportunity of being heard, and none of them requested to call any witnesses. The students therefore requested that the case be sent back to the High Court for a re-hearing due to conflicting evidence. On the other hand, the University argued that the High Court should not have ordered reinstatement; it should rather have returned the case to the University for a fair hearing. They asserted that the High Court can only declare a fair hearing violation, not reinstate students as deciding who can or cannot be a student is the exclusive preserve of a University. The University also claimed there was evidence linking the students to the rampage. Both sides raised jurisdictional questions regarding the proper court for handling the case. The issues for determination were narrowed down to:

Whether the high court was competent to entertain the action.
Whether in the exercise of the powers conferred by section 17(a) of the University of Maiduguri Act 1979, the Vice-Chancellor and his appointees ought to have applied the rules of natural justice.
Whether the appellants established a breach of S.33(11) of the 1979 Constitution and
Whether the trial court was competent to grant the relief which it granted.
On issue 1, the Supreme Court held that the High Court was indeed competent to entertain any fundamental rights action as it was so clothed by S.42 of the 1979 Constitution of the Federal Republic of Nigeria, now S.46 of the 1999 Constitution of the Federal Republic of Nigeria. The Supreme Court reiterated the fact that fundamental rights are protected by law and the Constitution and cannot be taken away by government officials without amending the Constitution.

On issue 2, the Supreme Court held that the disciplinary board failed to conduct its own investigation and solely relied on the investigating panel’s report. This violated the appellants’ right to a fair hearing, where they should have the chance to present their case. It also established the fact that guilt in disciplinary matters needs to be determined by a court or a proper tribunal after which it may be adopted by an administrative tribunal and implemented.

On issue 3, which is the crux of the matter, the Supreme Court restated the principle of natural justice. Section 33 of the 1979 Nigerian Constitution, now S36 of the 1999 Constitution guarantees every individual the right to a fair hearing in the determination of their civil rights and obligations. This means that anyone involved in a legal dispute with the government or any other authority is entitled to a just and impartial hearing. This right embodies audi alteram partem as well as nemo judex in causa sua. It is a cornerstone of the Nigerian legal system, ensuring that justice is administered fairly and impartially. Audi alteram partem and Nemo judex are the twin pillars on which natural justice and indeed, fair hearing rests.

Audi alteram partem is a Latin phrase meaning “hear the other side” or “let the other side be heard as well.” It is a fundamental legal principle that ensures everyone has a fair opportunity to be heard before a decision is made about them. This means every party in a matter has a right to present their side of the story and both or all sides must be heard before a decision is reached by the adjudicator. In hearing both sides, a decision maker must not be biased or show partiality. In this case, the students’ contention was that they were neither allowed to call witnesses nor were they allowed to cross examine the school’s witnesses. Their alibis were not investigated as well. Essentially, they were muzzled in the decision-making process that affected their studentship. As such, the University of Maiduguri had failed on the first leg of the principle of natural justice.

Nemo judex in causa sua is another Latin legal maxim that translates to “no one can be a judge in their own case”. It is the second leg on which the principle of natural justice rests. It helps to safeguard the impartiality and fairness of decision-makers. Nemo judex dictates that a person with an interest in a dispute should not be the one making the decision. This helps to avoid conflict of interest and prevent prejudice. Ordinarily, in deference to nemo judex, a judge with a personal stake in a case ought to recuse themselves. So should any arbiter or decision maker with vested interest in the outcome of a proceeding to engender objectivity and prevent undue influence. In Garba v UniMaid, the court held that the University Visitor (an external authority) lacked jurisdiction over criminal offenses. Additionally, the Visitor cannot be a judge in their own cause, as their authority comes from the founder’s right to manage internal matters. Furthermore, since the complaint involved damage to University property managed by the Vice-Chancellor and other officers, they are vital witnesses in the matter and cannot be judges in their own cause. Thus, the school also failed on this second leg of natural justice.

On issue 4, the Supreme Court restated the fact that the High Court had the authority to hear the case concerning a fundamental right. Thus, the appeal was allowed and the decision of the Court of Appeal upturned. The court ordered the students’ reinstatement holding that they must be treated like every other student who had to pay N160 for the damages. A very interesting course of justice.

Garba v University of Maiduguri underscores the fact that justice is always a two way street. It is not only redress for the victim; it must also include fairness on the suspect or defendant. In addition, a University or any other authority as a matter of fact, saddled with responsibility to mete out discipline must abide by the principles of fair hearing even in non-judicial and quasi-judicial proceedings.

Oluwapelumi Mojolaoluwa Mofoluwawo, LLB, LLM(UK) is a Nigerian lawyer and Principal Partner at OM Livingstones & Co. She can be reached on [email protected] and on youtube – Bar Talk with Ola.