By Aare Afe Babalola

QUOTED in one of my articles from 1998, I said: “Man in the crudest and earlier stages of life, living alone in isolation, needed no law. Even now, any person living alone in the primaeval forest far from civilization does not need any law. He is a master of himself and what he does or says.”

The truth in this statement is eternal. It does, however, allow for an exception. Where a minimum of two people coexist in a place, whether primordial or modern, the law is a compulsory mediator between them. It is important to note, however, that no matter how good a law is, even if it was given by God Himself, if it is disobeyed with impunity, the intention and purpose of the law will not be realized.

In a bid to protect the sanctity of the law, I have chosen legal themes over the years to publish for the education of the public. The area of interest in this publication is an arm of the right to a fair hearing. This is the right of every person to be allowed to make his or her defence, otherwise known as the principle of audi alteram partem.

The principle ofAudi Alteram Partem: The goal of the law is to achieve justice in each individual case. The right to a fair hearing rests on two pillars. These are: Nemo Judex in causa sua (no man is to be a judge in his own cause) and the principle of audi alteram partem (no man is to be condemned unheard).

The second pillar of the right to a fair hearing, which is the focus of this article, presupposes that all parties must be given the opportunity to know what evidence exists against them and to present evidence to support their case. This is in fulfilment of the requirement that justice must not only be done, but also be seen to be done, at least objectively.

Hence, opportunity must be given to every party to present a defence and this defence must be heard by the judge or umpire. This right is built on the principles of justice, equity, and equality. The origin of Audi Alteram Partem: Interestingly, this principle is as old as time, and has its origin in God Himself. In Gen. 3:8–23, we witnessed how Adam and Eve broke the very first law given to man by God.

It was obvious that God, being omniscient and omnipresent, saw Adam and Eve when they were contemplating violating, and indeed violated, His law. However, God still afforded them the opportunity to defend themselves. The Scriptures state that God listened to Adam and his wife’s defences before passing judgement on the merits of their arguments. Even God gave man the opportunity to defend himself. This is a further testament to the inviolable nature of this principle of audi alteram partem.

The Importance and Power of the Principle of audi alteram partem: I must state emphatically that this principle allows for no exception. Apart from being an inviolable pillar of natural justice and a fair hearing, it is also a fundamental human right, aright belonging to every human, even accused persons.

The entirety of S. 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) was devoted to protecting this principle. Further, Article 10 of the United Nations International Bill of Human Rights, 1948, states that “everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal in the determination of his right and obligation and of any criminal charge against him”. This principle is also further enshrined in some native laws. For example, there is the Yoruba adage that anyone who judges on the testimony of only one party is wicked(eni ti o gbo ejo enikan da ejo, agba osika ni). 

The extent of the application of this principle of fair hearing as an immutable principle of law, is seen in Glyn Keel v. University (1971) 2 All ER p. 89. In this case, the University Regulation forbade a male student from going into a female students’ hostel. Late one evening, the Vice Chancellor saw a male student in the female hostel. Worse still, the student was naked.

The Vice Chancellors was rightly angry, and he dismissed the student summarily for flagrantly breaching the university regulations. The student took the matter to court, challenging the order of the Vice Chancellor on the ground that he was not given a fair hearing. Guess what? He won!! The court found in his favour on the ground that he ought to have been heard. After all, there was the possibility that he was abducted by hefty girls, dragged into the hostel by them or that he was drugged.

Also, where the other party is given the opportunity to be heard, he must be heard, and his or her evidence must be taken into account by the adjudicator, be it a formal court setting or otherwise. I will give a few personal examples of mine. There was a matter I handled for a farmer who had his farm at old Bodija.

The Police gave testimony that he reported himself, confessing that he had murdered his wife. He also took the murder weapon, a cutlass, to the Police. The police went to the scene of the crime and recovered his shoes. On the strength of these evidences, the Police took the matter to court. Representing this farmer, I was able to establish that there was a footpath which links the farm to a nearby settlement, and is assessable to anyone.

Also, the murder weapon and shoes were not taken to the forensic lab in Oshodi, in Lagos state to ascertain, through DNA evidence, their owner(s). I therefore submitted a no case submission, as the prosecution was unable to fulfil the evidential proof beyond reasonable doubt. That is the power of audi alteram partem. 

There is another case where 12 businessmen from Lagos were accused of purchasing a large area in the thick forest of Igboora, in Oyo state. The area was acquired for the cultivation of marijuana in commercial quantities. When a new divisional police officer was posted to the location, the businessmen attempted to bribe him, but he was incorrigible.

The DPO thereafter took three lorries to the farm, harvested the marijuana, and charged the 12 businessmen to court for the unlawful cultivation of marijuana. I represented the accused persons. At cross-examination, I asked the IPO which of the harvested marijuana belonged to the 1st accused person. His response was that he did not know. I asked the IPO the same question in respect of each of the twelve accused persons.

His answer was the same. I therefore entered a plea of no case submission on the grounds that one should not be charged for the offence committed by another. This is the power of audi alteram partem. Finally, following the strong policy of my university against the inordinate abuse of prescribed medication, including marijuana, the university was fenced round.

There was a time when someone unknown threw marijuana into a dark part of the university at night. A guard saw what transpired and left the marijuana where it was thrown, waiting to see who would retrieve it.  A few hours later, a student came and picked it up. When he was challenged about the contents of what was in his possession, he claimed that he just found it on the floor.

If this were all, disciplinary actions may not have been taken against him as sternly as it ought. However, when the substance was unwrapped, a note was found in the wrapper to another student on campus. Upon the confession of the student named in the note, it was revealed that the student in possession of the substance was sent by the student referred to in the note, to retrieve the marijuana. They were therefore punished appropriately. This also, is the power of audi alteram partem. 

Conclusion: No matter how stupid the evidence of a person may seem, he has a right to be heard. However, although the court is not bound by the evidence of the party, it cannot ignore this principle of audi alteram partem. This is because to do so will be to risk nullifying the entire proceeding. This is a strict principle of law.