Courtesy: Moruff O. Balogun Esq.
On whether a Judge who did not conduct either the entire or part trial can write and/or express a judgment predicated on the evidence he did not hear : An insight into the Supreme Court laudable decision in OLAYIOYE V. OYELARAN  4 NWLR PT.1662 PG. 360-361.
MARY UKAEGO PETER-ODILI J.S.C stated as follows:
“The general rule in adjudication is that it is he who hears who must be the same person who decides or determines the civil rights or obligations dependent on the facts of the case presented at the hearing. It is a breach of natural justice for a person who did not participate in the hearing proceedings to participate in a decision in which he had not heard all the evidence and submissions. It is clearly a breach of natural Justice for a person who did not participate in the hearing to appear to have actively participated in, or taken, the decision determining the rights of individuals after the oral hearing before the judicial or quasi- judicial body.
This jurisprudence, or principle of fair hearing, is not entirely resident outside this jurisdiction. A number of local decisions of our courts pointedly endorse the postulation that a Judge who did not conduct either the entire or part trial cannot write and/or express a judgment predicated on the evidence he did not hear. A decision by a judex who did not participate in the hearing proceedings is a nullity. The consequence for this lapse in hearing resulting in a decision has always been that the decision is null and void.
“Per EKO, J.S.C. at pages 379-380, paras. G-C: I must add: by virtue of section 294(3) (formerly section 258(3) of the Constitution, this court; where in the Court of Appeal a Justice of the court who did not participate in the hearing of the appeal submitted a concurring judgment, had merely excised the latter judgment from the judgment of the court and saved the majority judgment, holding that it was a mere irregularity that opinion of the Justice of the court, who did not participate in hearing the appeal, strayed into the final judgment of the court; and that the decision of the court was “determined by the opinion of the majority of its members”: Shuaibu v Nigeria Arab Bank LId. (1998) 8 NWIR (PL. 551) 582. This Shuaibu decision does not save the judgment of the justice of the Court of Appeal who did not participate in the hearing of the case, as in this instant case. It only used Section 258(3) of the 1979 Constitution (now S. 294(3) of the extant Constitution) to save the majority judgment. The rule still, therefore, remains: only the Judex who hears must be he who decides.
In the peculiar circumstances of the case, without any statutory provisions justifying the decision of the Secretary to the kwara state Government, I am prepared to, and do hereby, adopt the Statement of law.
It is in actuality unfair in the circumstances of this case. The perversity of the decision of the Secretary to the Government of Kwara State lies in the fact that his non-participation “in the proceedings as wrapped in exhibits MOJ1, MOJ4 and MOJ5” which would support the finding of his ignorance of the facts on which he based his decisions affecting the appellant. The courts, in their review jurisdiction, will set aside a decision of an inferior tribunal that is clearly perverse”.
Moruff O. Balogun Esq.
IJEBU ODE,OGUN STATE. 08052871414.