Principles of natural Justice.

 PRINCIPLES OF NATURAL JUSTICE

 The principles of “natural justice” are recognized at law and are given constitutional protection amounting to constitutional rights. However these are general rules that ensure fairness in the administration of justice. 

 Principles of natural justice have been defined by many writers in various ways basing on their views, in the famous English decision in Abbott v. Sullivan , it was stated that “the Principles of Natural Justice are easy to proclaim, but their precise extent is far less easy to define”. 

 It has been stated that there is no single definition of Natural Justice and it is only possible to enumerate with some certainty the main principles. 

 Natural justice has been define also in various cases example in Drew v. Drew and Lebura   Lord Cranworth defined it as “universal Justice” also In Vionet v. Barrett  Lord Esher, MR defined natural justice as ‘the natural sense of what is right and wrong’ .

 In standard and administrative law books, natural justice is being used in various senses to include natural justice law, the law of God, the common right and reasoning, the natural sense of what is right and wrong ,the fundamental and inalienable law, fairness etc. 

 For instance under the American Constitution the word,” the due process of law is used to mean natural justice. The concept natural justice is very wide to the extent of confusing people but to remove the confusion it has been reduced to an irreducible meaning, that means to the core of the natural justice has been confined with 3 main rules. 

 Before there existed only two principles; namely; the rule that a man cannot be a judge on his own case (nemo judex in causa sua) famously known as the rule against bias and the rule that ‘No man should be condemned unheard’ which is also known as the right to be heard (audi alteram paterm). However, as time went on courts of law added another natural justice rule, the right to know the reason to the decision.

 By developing the principles of natural justice, the courts have decided a kind of a code of fair administrative procedure, just as they can control the substance of what the public authority is doing.  

 Through the principle of natural justice courts of law can now control the procedure by which administrative bodies pass their decisions. The concept has a wide application in the areas of discretionary and administrative powers in the ever growing governmental powers over individual citizens.

 Historical background of the concept of natural Justice

 

 It is said to be old as life itself. It is traced from Biblical times. For instance even before Adam and Eve were punished, he gave them and chance to explain. In its medieval times, natural justice rules required impartial adjudicators and fair hearing. 

 These principles were regarded as immutable order of things cannot be silenced. Even the powers of Parliament cannot remove the principles of natural justice. These theories lined into the 17/19th century though by then it was incompatible with the modern theory of parliamentary supremacy which gradually discarding the old idea.

 THE RULES AGAINST BIAS:NEMO JUDEX IN CAUSA SUA

 The natural justice rule against bias has a long history in the Common Law system. It rests on the grounds that justice should not only be done, but manifestly and undoubtedly be seen to be done.

 The strongest statement against a man being a judge in his own cause came from Chief Justice Coke as far back as 1610 in the Dr. Bonham’s Case . 

 In this case the College of Physicians wanted to fine and imprison Dr. Bonham of Cambridge University for practicing in the city of London without License from the College of Physicians. The law under which the college based its authority provided interalia that proceeds from the fine should be divided with of half going to the King and the other half to the College. Attacking this statute as being against common right and reason, the court ruled that the College had financial interest in its own judgement and therefore it was a judge in its own cause.

 The rule against bias nemo judex in causa sua basically provides that no man should be a judge in his own cause emanates from the fact that a judge is supposed to decide impartially the matter before him. In order to be able to  do so successfully, then he should have no DIRECT INTEREST in the subject of inquiry which would lead him to decide the matter in favor of one  of the parties.

 TYPES OF BIAS

 This is sometimes known as ‘monetary interest’ or ‘economic interest’ which implies that a judge should not have any such interest in the dispute in which he is adjudicating. 

 In Dr. Bonham’s case , as discussed above, the claim was disallowed by Coke, C.J as the College   had a financial interest in its own judgment and was a judge in its own cause.

 In another case of Dimes .v. Grant Junction Canal , where it was observed that all tribunals must take care that all their decrees are not influenced by their personal interest, but to avoid the appearance of laboring under such an influence. 

 It is therefore to say that pecuniary interest in the proceedings, however small it is, would wholly disqualify a member from acting as a judge.

 PERSONAL BIAS

 This refers to the way the judge is related to one of the parties in dispute and the way such relationship might influence decision making of the particular judge. Such relationship not is positive only but even a negative relationship/enmity between a judge and one of the parties may disqualify a judge from the proceedings.

 Kindred bias and other relationship, one should ensure that this does not lead to the wrong impression that it is more important that justice should appear to be done than that it should in fact be done. This was emphasized by Lord Hewart in R v. Sussex Justices Ex Parte Mc Carthy .

 In all these circumstances the judge will not be allowed to determine such proceedings since the likelihood of his decision to be influenced by personal bias will be great. However the fact that there is likelihood of bias will depend basically on the facts of each particular case.

 SUBJECT MATTER BIAS/OFFICIAL BIAS

 The fact that a judge has interest in the proceedings and such interests relates to the subject matter of litigation does not directly disqualifies a judge from determining the dispute beforehand. What needs to be proved is to what extent such interest influences the outcome of his decisions. 

 THE TEST OF LIKELIHOOD OF BIAS

 Whether bias exist or not depends on whether biasness does in fact exist or if not then the court will look at the existence of likely circumstances that biasness exists. Real likelihood of bias is therefore a test to see whether biasness exist in a particular case. Real likelihood of biasness is based on any reasonable suspicion that the decision maker might be biased in his decision.

 The proof of the existence of bias is that of the substantial possibility of bias. It was stated by Vaugham Williams in R v Sunderland , that the court will have to judge as a reasonable man would judge of any matter in the conduct of his own business.

 In R v Sussex Justices , Lord Hewart answered the question on the test of bias that such question of whether there was a real likelihood of bias depends not upon what actually was done but upon what might appear to be done. Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice.  

 It is in the interest of justice that when the judge sits to decide the matter should have in mind no interest related to the parties or the subject matter of the dispute before him. This was emphasized by Lord Denning in Metropolitan Properties Ltd v Lannon , who stated; “The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking the judge was biased.”

 EXCEPTIONS TO THE RULE AGAINST BIAS

 Necessity

 In all cases mentioned and discussed the disqualified adjudicator could be dispensed with or replaced by someone to whom the objection did not apply. But there are many cases where no substitution is possible since no one else is empowered to act. Natural Justice then has to give way to necessity or otherwise there is no means of deciding and the machinery of justice will breakdown.

 

 In the case of Tolpull (II) 4 Co. Ltd v. Mole , the court registry was sued unsuccessfully in his own court and he had to tax the costs in his own favor. 

 Another example on the necessity as an exception is the case of Judges v. AG of Cap 378 Saskatchewan . In the case, the government of the Saskatchewan called upon the court to determine whether salaries of judges were subject to income tax. The Privy Council held that the court was right to decide it as a matter of necessity. It was confirmed that the salary of judges were subject to income tax. 

 Statutory dispensation

 The Court strictly didn’t apply the rule against bias, which the parliament attempted to mitigate it by granting exception on particular cases. Difficulties arose especially in case of justices of peace who often had other public functions which might disqualify him from adjudicating. 

 THE AUDI ALTERUM PARTEM

 Audi Alter Partem is the second principles of the natural justice principle. This rule requires that before any action is taken, 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  , 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 requirement 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 , 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.

 In Simon Manyaki v IMF  the court stated inter alia, right to be heard is the first principle of civilized jurisprudence that a person against whom any action is sought to be taken or whose right of interest is being affected should be given a reasonable opportunity to defend himself. Fortescue, J. stated that the first hearing in human history was given in the Garden of Eden. His Lordship observed:

 

 ‘Even God himself did not pass sentence upon Adam, before he was called upon to make his defense. ‘Adam,’ says God, ‘where art thou? Hast thou not eaten of the tree, where of I commanded thee that thou shouldst not eat?’  

 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 fact 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.  Whereby it was held that a person cannot 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 , the court held the principle of natural justice which required that a person had to be afforded an opportunity to defend him necessarily implied that the person determining the matter would consider the party’s defense before making a decision which affected the right of the party. Failure to consider such defense was as bad as not affording the party the opportunity of a hearing.

 Generally, this maxim includes two elements of notice and hearing.

 NOTICE

 Before any action is taken, the affected party must be given a notice to show cause against the proposed action and seek his explanation. It is an indispensable condition (sine qua non) of the right of fair hearing. Any order passed without giving notice is against the principles of natural justice and is void ab initio .

 A person must know whatever charge he is facing so as he would be able to defend himself. In the case of Kanda v Government of Malaya , the court stated that if the right to be heard is to be real, it must carry with a right in the accused man to know the cause which is made against him. Right of hearing means and include sufficient notice of charge, thus there is a duty of disclosure on the party of administrative body to reveal the charge, which the person will face, and the document which will be relied on as evidence against him. 

 Even if there is no provision in the statute about giving notice, if the order in question adversely affects the rights of an individual, the notice must be given. In R v University of Cambridge , the King’s Bench declared the decision null and void for lack of notice. The notice must be clear, specific and unambiguous and the charges should not be vague and uncertain.  

 The object of notice is to give an opportunity to the individual concerned to present his case and, therefore, if the party is aware of the charges of allegations, a formal defect would not invalidate the notice, unless prejudice is caused to the individual. 

 In Felix Bushaija and others v Institute of Development Management Mzumbe and others , this was an application by expelled student of the Institute of Development Management Mzumbe (IDM) for prerogative orders (certiorari, mandamus and prohibition) to quash a decision to expel them, to compel the respondents to follow the law in the handling of disciplinary matters by channeling issues through proper Disciplinary Committee and affording the students the rights to be heard and an opportunity to appeal as provided by the law. The grounds upon which these reliefs were sought were failure to natural justice, misuse of statutory powers, failure to act judicially, unreasonableness, discrimination and estoppels. The court held that the decision to expel the applicants was vitiated by the failure to observe the rules of natural justice. 

 Also in the case of James F. Gwilo v Attorney General  in this case the plaintiff was a Regional Development Director for Tabora region until 15th May 1990 when received a letter informing him that the president under Section 19 (3) of Civil Service Act and Section 8 (f) of the Pension Ordinance and standing Order f. 35 has directed his (Gwilo’s) retirement from the public service in the public interest with effect from 15th May 1990 and no reasons were disclosed to such retirement. The plaintiff filed a suit for declaration that his retirement in the public interest was wrongful thus he declared a lawful employee of the government. 

 The court held inter alia, the president is under obligation to give reasons by virtue of Article 13(6) (a) of the Constitution of the United Republic of Tanzania, 1977  which guarantees the right of appeal and the right of judicial review from any decision affecting citizens right, and Article 18 of the Constitution of the United Republic of Tanzania, 1977  which guarantees the citizens right to know and the right to have information. It was further stated that a third head of the principles of natural justice ranking equally with Audi alteram partem (the right to be heard) and nemo judex in causa sua (the rule against bias) exists. This is the right to get reason from a decision maker. Therefore it is a violation of the rules of natural justice to refuse to give reasons to the party who has lost.  

 HEARING

 There is no fixed rule that the right to be heard means a right to be heard orally. In some situations a case can fairly be concluded in writing.  Oral hearing is not regarded as an essential part of natural justice that in every case there should be oral hearing. 

  The purpose of hearing is that there is an overriding obligation to provide the applicant with the fair hearing and fair opportunity to controvert the charge. For hearing to be termed as fair it must fulfill the following conditions;

• The adjudicating authorities should receive all the relevant materials which the individual wishes to produce.

• It should disclose all information, evidence or material which the authority wishes to use against the individual concerned in arriving at its decision.

• It should give to the individual concerned an opportunity to rebut such information or material.

• In Ridge v Baldwin , the Chief Constable of Brighton was dismissed from the force by the watch committee who claimed to act under Municipal Corporation Act, 1882 Section 191(4) which gave the committee power to dismiss “any constable whom they think negligent in the exercise of his duty or otherwise unfit for same”. The Chief Constable was not present at the meeting of the committee nor given notice of the grounds of the proposal to dismiss him nor particulars of the grounds nor was he given opportunity of stating his case. The Court of Appeal heard that “in dismissing the plaintiff the defendants were acting in administrative or executive capacity as they did when they appointed him”. 

• Ridge appealed to the House of Lords which overruled the Court of Appeal by stating that there were disciplinary regulations which laid down the procedures to be followed in dismissals and further, natural justice requires that hearng should have been given before the Watch Committee exercises its power. The failure to give a hearing as required by natural justice invalidated the dismissal, and the subsequent hearing given to Ridge’s solicitor (not to Ridge himself) did not cure the area defect.

• Also in Sylvester Cyprian & 210 others v UDSM , applicants were first year students of Faculty of Engineering, University of Dar es Salaam, who were discontinued from their studies for what was called ‘absenting themselves from examination.’ They applied for Certiorari to move the High Court and quash the decision by the respondent to permanently dismiss the applicants from the University of Dar es Salaam and an order of Mandamus to compel the respondent to reinstate them. The sole ground of application was failure to observe the principles of natural justice. That the Senate entertained charges against the applicants which were not made known to the applicants and in fact never gave the applicants or their representatives opportunity to be heard in the own defense. Kyando, J. reiterated the principle in the following words;

• “I hold the view that the applicant, whose rights and legitimate expectation stood to be so adversely affected by the enquiry had the right to have an adequate opportunity of knowing the case he had to meet, of answering it, of putting forward his own case and of being fairly and impartially treated.”  

• Moreover in the case of Mahona v University of Dar es Salaam,  the applicant in this case was terminated from employment by the defendants on disciplinary grounds. He appealed to the Labour Conciliation Board and was successful. The defendant appealed to the Minister of Labour. The applicant was not supplied with the copy of the memorandum of appeal submitted by the defendant to the Minister nor was he given an opportunity to be heard by the Minister before making his decision. 

• The Minister reversed the decision of the Labour Conciliation Board and ordered the applicant to be paid his terminal benefits. The applicant went to the High Court challenging his termination and seeking a declaration that his termination was invalid. Agreeing with applicant, Kisanga, J. (as he then was), held that there was a breach of the rules of natural justice as the grounds of appeal by the defendant were not made known to the plaintiff by the Minister and the same Minister proceeded to determine the appeal without hearing the applicant.

• The judge underlined the importance of the rules of natural justice and indicated that non adherence to these rules renders the decision made null and void.

• NULLUM ARBITRIUM SINE RATIONIBUS

• For long administrative law has only recognized two cardinal principles of audi alteram partem and Nemo judex in causa sua as the only rules of natural justice. Judicial decisions have developed another principle which is ‘Nullum Arbitrium sine rationibus’ that is the right to be given reasons for the decision made.

• Lord Denning  in  Breen  vs.  Amalgamated  Eng.  Union ,  Stated that the giving of reasons  is  one of the fundamentals  of good  administration.

• The  condition  to  record  reasons  introduces  clarity  and  excludes  arbitrariness  and satisfies  the  part  concerned  against  who  the  order  is  passed.   

• Lord Denning observed in his book ‘The Road to Justice’ at p.29 observed that;

• “The judge must give reasons for his decision: for by so doing, he gives proof that he has heard and considered the evidence and arguments that have been produced before him on each side: and also that he has not taken extraneous considerations into account. It is of course true that his decision may be correct even though he should give no reasons for it or even give a wrong reason: but, in order that a trial should be fair, it is necessary, not only that a correct decision should be reached, but also that it should be seen to be based on reasons; and that can only be seen if the judge himself states his reasons.” 

• Today  the  government functions  have  increased,  administrative  tribunals  and  other  executive  authorities  have come  to  stage  and  they  are  armed  with  wide  discretionary  powers.  There  are  all possibilities  abuse  of  power  by  such  authorities  and  thus  breach  the  principles  of Natural Justice.