Audi alteram paterm as a principal of natural justice (wide scope of the process of hearing)

INTRODUCTION

It should not for once be considered that these rules of natural justice are there for only ornamental purposes or that they are mere niceties to titillate the mind. They are there for the very important purpose of ensuring good and lawful government as it was stated by Kyando J in the case of Felix Bushaija and another v Institute of Development Management and Others[1]

It is impossible to exclude judicial review when we are talking about the natural justice principles. This jurisdiction of judicial review has respectable history dating back to medieval times. The court of King’s Bench at Westminster was concerned in the nature of the sovereign to ensure that the inferior bodies and courts observed law fulfilled public duties and did not act beyond the scope of their powers.

This jurisdiction of the King’s Bench vested in the high court as a result of the 19^th century court reforms and is now exercised by a single judge or the divisional court of the Queen Bench division. This jurisdiction is inherent in the sense that it does not owe its origin to statute. It is general power to review the legality of the exercise of any statutory function. From that juncture is where the natural justice principles developed in order right to a person feels that he is suffering from some grievance at the hands of some other citizen or body performing administrative functions he may pursue a certain course of action.

THE CONCEPT OF NATURAL JUSTICE

Generally the concept of natural justice is about fairness and justice in the society. They address how judicial administrative and other organs are to function in the process of reaching a fair decision in determination of any issue before them. The rules of fair play in the administration of justice are regarded as universal and rules of the wise. They are intergral  part of the doctrine of rule of law its is in that light that lord Esher , M R in Vionet  V Barret[2] referred to them as indicator of the natural sense of what is right and what is wrong. They are rules to be followed by a person or body charged with the daily of adjudicating upon disputes between parties[3]

Originally there were only two main principles of natural justice which were Nemo Judex in causa sua which prohibit a man from being a judge in his own case and the second principles was Audi Alterm Partenm  that is right to be heard before condemned overtime the court of law have developed a third principles of natural justice which is Arbitrium Sine Rationibus that is there should be a reason for every decision

THE AUDI ALTERUM PARTEM

Audi Alter Partem is the second principles of the natural justice principle. This rule requires that before any action is take, the affected party must be given a notice to show  cause against the proposes action and seek his explanation. It is a sine qua non of the right of fair and seek his explanation it is a sine qua of the right of fair hearing any order passed without giving notice is against the principle of natural justice and is void ab initio . in the case of R v. University of Cambridge [4] Dr Bentley was deprived of his degree by Cambridge university on account of his alleged misconduct without giving any notice or opportunity of hearing. And the court of Kings Bench declared decision as null and void.

Hearing, this is the second requiremnent of audi alterum Parlem, in this the person concerned must be given an opportunity of being  heard before any adverse action is taken against him .In the case of Cooper v Wandiworth Board of Works[5] the defendant Board had power to demolish any building without any opportunity  of hearing if it was erected without prior permission. The Board demolished the house of the plaintiff under this provision. The action of the board was not in violation of the statutory provision, The court held that the Board’s power was subject to the qualification that no man can be deprived of his property without having an opportunity of being heard

THE BRODER OR WIDE SCOPE OF AUDI ALTERAM PARTEM

The scope of application of this rule has not been such narrow as most of scholars try to confine it in actual tact the rule of Audi Alteram Partem covers a wide scope  of  the process of hearing . In order to have a fair hearing the following grounds should be present.

The person should be given sufficient notice of the charge or case he is facing. This will enable him to know the nature of the accusation made against him thus get prepared to the case including ability to examine the witness who might be brought before the hearing officer. This was seen in the case of Sarcet v. Commission for Registration of India and Pakistan Residents.[6] Whereby it was held that a person can not effectively re examine witnesses who have been questioned by hearing officer on the basis of undisclosed report

The second ground is that the person should be given a fair opportunity to face his accusers by making presentation of his own side of the story and contradict any statement or evidence prejudicial to his interest. In the case of Ndesamburo v. Attorney General[7] the court held the principle of natural justice which required that a person had to be afforded an opportunity to defend himself necessarily implied that the person determining the matter would consider the party’s  defence before making a decision which affected the right of the party. Failure to consider such defence was as bad as not affording the party the opportunity of a hearing.

CRITICISM AS TO WIDE APPLICATION OF THE RULE AUDI ALTERAM PARTEM

On the other hand concerning the rule of Audi Alteram Partem the scope of application of this rule has been such narrow as most of scholars tried to confine it. This means not always this rule is applicable in cases.

The following are circumstances where such rule may not be applied

Oral hearing an adjudicating authority must observe the principle of natural justice and must give a reasonable opportunity of being heard to the person against whom the action is sought to be taken but absence of statutory provisions an administrative authority is not bound to give the person oral hearing. This is because oral hearing is not regarded  as  sine qua non of natural justice. This was seen in the case of A.K  Gopalan v. State of Madras[8] where by the court held that the person is not entitled to an oral hearing unless such right referred by statute. Also I the case of M P Industries v. Union of India[9] the court provide a person can have written presentation instead of oral hearing if statute does not provide right for oral hearing.

Right of counsel the right of representation by a lawyer is not considered to be part of natural justice and it cannot be claimed as right unless it is conferred by the statute. This was seen in the case of Pett v. Grey hound Racing Association[10] the court held that it is difficult to say legal representation before tribunal is an elementary feature of fair dispensation of justice.

CONCLUSION

To sum up the discussion generally it is the rule of Audi Alteram Partem cover a wide  scope if process of hearing simply because statute and case law recognize it as an important rule in any case though this rule has its limitation but this does not affects much on its wide application.

BIBLIOGRAPHY

Cases

A.K  Gopalan v. State of Madras AIR (1950) SC 27 (43)

Cooper  v. Wands worth Board of Works (1863) 14 CB  NS 180 : (1861-73) ALL  ER 1554

Felix Bushaija and others v. Institute of Development Management and others High Court of Tanzania at Dsm Misc Civil case no 9 of 1991 (unreported)

M.P Industries v. Union of India AIR (1966) SC 671

Ndesamburo v. Attorney General [1997]TLR 137

Pett v Liveyhound Racing Association (1969)   2 ALL ER 221

R v. University of Cambridge (1723) 1 STR 757  93 ER 698

Shareet v. commission for Registration of India and Pakistan Residents (1966)  AC 47

Vionet v. Barret (1885)  55 QB 39

Books

Thakker C. K (2004)  Lectures on Administrative Law.3^rd Ed , Eastern Book Company New Delhi

Maina , C.P (1997)Human Rights in Tanzania: Selected Cases and Material , Koln Koppe, Germany

Wade , H.M.R (1982), Administrative Law, 5^th Ed, Oxford University Press , Oxford.

Article

Issa M “Know about rules of Natural Justices” The Business Times News Paper, Friday Feb 27^th 2004 at P 5   

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[1][1] High court of Tanzania at Dar es salaam , miscellaneous civil case no 9 of 1991 (unreported)

[2] (1885)55 QB 39

[3] Business Times News Paper by Mtunguja Issa, feb 27^th 2004 at page 5

[4] (1723) 1 1str 757 93 ER 698

[5] (1863) 14 QB (NS) 180 – 73 All ER

[6] (1966)  AC  47

[7] [1997] TLR 137

[8] AIR 1950 SC 22  (43)

[9] AIR 1966 SC 671

[10] (1969) 2 ALL ER 221