LEGAL PRINCIPLE: CONSTITUTIONAL LAW — Fair Hearing — Opportunity to Participate Sufficient
PRINCIPLE STATEMENT
Fair hearing is a rule of substance, not a technical doctrine; the decisive question is whether the hearing was conducted in a manner that an impartial observer would conclude was fair, and providing the opportunity to cross-examine is sufficient—no party can be compelled to cross-examine.
RATIO DECIDENDI (SOURCE)
Per Nnaemeka-Agu, JSC, in Kuusu v. Udom (1990) NLC-1741986(SC) at p. 45; Paras A–C.
"Fair hearing is not a technical doctrine. Rather it is a rule of substance. Whenever it is raised against a hearing, the decisive question is always whether, having regard to all the circumstances of the particular case, the hearing was conducted in such a manner that an impartial observer will conclude that the Tribunal was fair to all the parties. In this case, both sides produced their witnesses and elders. They were questioned by the Court in the presence of both parties. Both parties were present all through. No party can be compelled to cross-examine a witness called by his adversary. All that the tribunal is required to do is to provide each party with the opportunity to do so."
EXPLANATION / SCOPE
Fair hearing is substantive, not technical. The test is whether an impartial observer would conclude the hearing was fair. The tribunal must provide each party with the opportunity to cross-examine witnesses. A party cannot be compelled to cross-examine. The failure to cross-examine does not violate fair hearing if the opportunity was given. The principle recognises that parties make strategic choices. The court examines the totality of the circumstances. The rule applies to courts and tribunals. The key is whether the party was given a real opportunity to participate, not whether they actually took advantage. The principle prevents technical challenges based on a party’s own inaction.
