Principles of natural Justice.

As far as traditional system is concerned, it is bound by strict formalities, traditions and rules and regulation. However that requirement is dispersed and dispensed within case of administrative bodies and tribunals. These bodies do not follow the strict rules as mentioned in procedural laws and evidence law. However they are definitely bound by principles of natural justice .these principles not only secure justice but also prevent miscarriage of justice. Not even the administrative tribunal and bodies but also the ordinary courts of law follow these principles. Now the question arises, what are actually the basic principle of natural justice?It has once been observed by an English Judge Hermilton that, the expression natural justice is sadly lacking in precision, that the romantic word “natural” is itself question begging as justice is far from being a “natural Concept”. And as the closer one goes to the state of nature, the less justice one finds. As a matter of fact, the case of natural justice is fairness, but fairness is itself flexible, pragmatic and relative concept. Natural Justice is the concept varying content, yet or none the less, if there is an irreducible minimum and the core of the concept then it can be said that, traditionally natural justice has been confined to twin rules, namely: that

i. A man may not be a judge in his or her own case expressed in a Latin maxim  “Nemojudex in causasua” and the other

ii. Is no man should be condemned unheard. Expressed in Latin maxim “Audi alteramparterm” meaning hear both parties. And the third one has been added recently 

iii. Reasons for the decision.

By developing the principles of natural justice, the courts have devised a kind of code of fair administrative procedure. Just as they can control the substance of what the public authorities do by means of rules relating to reasonableness, repugnancy etc. so through the principle of natural justice they can control the procedure by which they do it. The concept has a very wide and general application in numerous areas of the discretionary administrative power and with the ever growing governmental power. Over the individual citizens in which observance of natural justice renders it intolerable in ensuring that, however wide the power of the state and however extensive the discretion they confer, such power is exercised in a manner which is procedurally fair, Hence the sum total of natural justice is fair play in action.

 WHEN DOES A DUTY TO OBSERVE NATURAL JUSTICE ARISE:-

It is not easy pigeon hole the circumstances in which a duty to observe the principle of Natural Justice may arise. However it can generally be said that a duty arises whenever it is particularly important to an individual who is directly affected by a decision, that a fair procedure should be observed. Hence whenever the exercise of power directly affects a man’s right or his property character. It is more likely to be subject to principles of natural justice. So is the decision which follows the procedure comparable to that of litigation.

HISTORICAL BACKGROUND OF THE CONCEPT OF NATURAL JUSTUCE:-

The list background of the concept of Natural Justice is said to be as old as life itself. It is traced from the biblical times the example given is that, even before God punished Adam and Eve for breaking the rules of Garden of Eden, he gave them an opportunity of being heard first before giving out punishment for them. In its medieval guise; Natural Justice rule of requiring impartial adjudicators and fair hearing, were regarded as part of the immutable order or things, so that in theory, later on even the power of the parliament could not alter them.

BONHAM’S CASE (1610):-In this Dr. Bonham, doctor of physics at the university of Cambridge, was ordered to be fined and imprisoned by the college of physicians  for practicing in the city of London without license issued by the said college of physicians. The statute under the college acted provided that: “fines should go half to the king and half to the college “. CJ Coke held that; since the college had the financial interest in its own judgment, it was improper for the college to determine the matter as doing so amounted to being a judge it its own cause. CJ Coke went as far saying that, the court could declare an Act of Parliament void, if it made a man a judge in his own cause or was otherwise against common right and reason. Thereafter, the concept gradually developed in its dimensions. But like most principles of administrative law it suffered a severe setback during the two WW’s particularly WW2.after the said war there was the renaissance of natural justice and the UDHR of 1948 gave it a remarkable impetus/force. However the turning point of the concept of Natural Justice came in 1963 with the decision of the House of Lords in the case of 

Ridge vs. Baldwin [1964] AC 40.Ridge the Chief Constable of Brighton was suspended from duty after he had been arrested and charged with conspiracy to obstruct the cause of justice. At his trial, Ridge was acquitted. However during sentencing to police officers from his force who were charged with him but also were not convicted were mentioned. And the trial judge was critical of Ridge’s leadership of his force. At a later date, when a corruption charge was brought against Ridge, the prosecution offered to evidence. Again the judge directed Ridge’s acquittal but made another comment concerning the leadership of the force. The watch committee mate the next day and decided that, Ridge should be dismissed. S. 191(4) of the Municipal Co operations Act of 1882, provide that; “a watch committee could dismiss any borough constable whom they think his negligence is the discharge of his duties or otherwise unfit for the same”. Ridge was not asked to attend the meeting but was told that he had been summarily dismissed and was also told of certain resolutions passed in the meeting. At the request of Ridge’s solicitor the watch committee reconvened some days later. Having received representations from Ridge solicitor, the watch committee decided not to change the original decision. Ridge appealed to the home secretary, the home secretary dismissed the appeal, and Ridge resorted to the court of law. His action failed and his appeal to the HC failed as well. He then appeal to the House of Lords. The House of Lords held that; the dismissal was invalid. Lord Reid made the following observations; “in modern times opinions have sometimes been expressed to the effect that Natural Justice is so vague as to be practically meaningless but I regard as tainted  by the perennial fallacy, that because something can’t be cut or dried or nicely weighed or measured, therefore it does not exist. The idea of negligence is equally insusceptible of exact definition and natural justice has it has been interpreted in the courts in much more definition than that. The Court therefore held that in the proceedings the watch committee was bound to observe what are commonly called the Principles of Natural Justice. Before attempting to reach any decision, they were bound to inform on ground on which they propose to act and give him a fair opportunity of being heard in his own defense. 

THE RULE AGAINST BIAS:-

The essence of this rule is that; a judge is disqualified from determining any case in which s/he may be or may fairly be suspected to be biased. The word judge refers to anybody whose decision is bound to directly affect the interest of another person. This is an ancient principle in common law and it was developed to a view to strengthen the public confidence in the administration of justice. The principle is based on another principle that justice should not only be done, but must manifestly and undoubtedly be seen to be done. It should be noted that this disqualification on the ground of bias applies essential to all quasi-judicial bodies.

The word bias means anything that may tend to cause a person to decide a case other than on evidence. As a matter of fact a rule that “no man shall be a judge in his own cause” follows from the fact that a judge must decide impartially between the parties before him/her and s/he should not have direct interest in the subject of the inquiry which would lead him or her to decide the matter in favor of one of the parties. In other words s/he should be impartial, neutral and free from bias.

A line must nevertheless be drawn between genuine and fanciful cases direct pecuniary interest however small is a disqualification, but this is not to say that, Courts will be tolerant of other influence which might be suspected of causing bias. In fact in modern cases, pecuniary interest plays a relatively small part but the courts are vigilant to eliminate anything smacking in any way of favoritism. On the other hand, personal bias may arise out of blood relation, marital relations, friendship or hostility. The existence of bias is the question of fact and will have to be proved in every case. The distinction which was formerly being drawn between judicial and quasi judicial functions and purely administrative functions and that, the principle of natural justice are only to apply were the public body is performing judicial or quasi judicial functions is no longer tenable. Bias is not to be readily inferred   and it is difficult to detect both in its effect and in its likelihood, were there is no personal animus, monetary interest or similar apparent circumstances. But circumstances of the case are a major guiding factor:

REAL LIKELIHOOD AND BIAS IN FACT:

Two tests have been competing for supremacy foe determining the question of bias;

i. Real likelihood and 

ii. Bias in fact (actual bias).

In real likelihood test/formula the test is whether the facts give rise to a “real likelihood” of bias. Expanding on the “test of likelihood” in the case of 

METROPOLITAN PROPERTIES COMPANY VS.LENNON; [1969] 1 QB 577.

Lord Denning MR: states as follows: “the court does not look to see if there is a real likelihood that he (chairman) would or did in fact favor one side unfairly at the expense of the other. The court looks at the impression which would be given to other people. Nevertheless, there must appear to be the, real likelihood of bias surmise or conjuncture is not enough. There must be circumstances from which a reasonable man would think it likely or probable, that the judge or the chairman as the case may be would or did favor one side unfairly, at the expenses of the other. The court will not inquire whether he did in factfavorsone side unfairly   suffice it that reasonable people might think that he did. The reason is plain enough. Justice must be rooted in confidence and confidence and confidence is destroyed when right minded people go away thinking that the Judge was biased.” The facts of the case are as follows: a rent assessment committee had fixed the rent for three flats in one block of flats. The chairman of the committee was a solicitor who lived with his father in the second block of the flats owned by the same property group. The chairman of the firm was negotiating about rents with the landlord on behalf of his father and other tenants in the second block. It was held that; the decision of the committee must be quashed as no man can be an advocate for or against the party in one proceeding and at the same time sit as a judge of that party in another proceeding.

In another case of Franklin vs. Minister of Town & Country planning: [1948], All ER 289. A new towns Act of 1946 empowered the minister after consultation with the local authorities to make a draft order designating a site of a proposed new town. If objections were made and not withdrawn, the minister was bound to arrange a local public inquiry and to consider the report of a person holding the inquiry. while the act  was still a bill, the minister made a public speech stating that; “Steven age would be the first Newtown when the Act becomes law”. He made a draft order designing Steven age Newtown and the local inquiry was held into the objection received. Later the minister confirmed the draft order. The validity of this confirmation was challenged in the court.  The House of Lords held that; there was no evidence that the minister had not genuinely considered the report of the inspector who held the inquiry that, his previous comments did not amount to bias.

NB: whenever there is any allegation of personal bias the question which should be satisfied is this; is there in the mind of a litigant a reasonable apprehension that he will not got a fair trial? The test is whether there is a real likelihood of prejudice that it does not require certainty. Real likelihood is an apprehension of a reasonable man upraised of the facts and not the suspicion of the fools and capricious persons

Must read: Jimmy David Ngoya vs. N.I.C LTD [1994] TLR 28.

AN EXCEPTION TO THE GENERAL RULE;

THE RULE AGAINST BIAS.

1. CASES OF NECESSITIES:

In most cases a disqualification could be dispensed with or replaced by someone else to whom the objection did not apply. But there are some instances where no substitution is possible since no one else is empowered to act. Natural Justice then has to give away to necessity for otherwise, there is no means of deciding and the machinery of justice or administration will break down. In the case of Tolpuh (H) & Co Ltd vs. Mole (1911) 1 KB 836. A court registrar was sued unsuccessful in his own court & had to tax costs in his favor. 

The case of Judges vs. Attorney General of Cap 378 Saskatchewan (1937) 53 TLR at pg 464. The government of Saskatchewan called upon the court to determine whether the salaries of judges were liable to income tax. The Privy Council confirmed that, the judge was right to decide it; as a matter of necessity, where the court held that the salaries of judges were liable to income tax.

2. STATUTORY DISPENSANTION:  

Over the years the parliament in Britain has attempted to mitigate the strict rule against bias by granting exemption in particular cases. But the courts put a nail interpretation upon such provisions, holding that; “any departure from the universally acknowledge principles of natural justice, required clear words of enactment. Hence, the English Licensing Act of 1964 which provided that; “the acts of any one elected  by the office of liquor licensing board and acting in that office shall be valid and effectual notwithstanding any disqualification. By a subto interpretation: court confined this provision to what they call the technical disqualification by the Act. They will  uphold an order, if it is shown merely that, one or more of such members falls in disqualifying provision but they will quash it if in addition it is shown that there was real likelihood of bias in that particular case.

“AUDI ALTERAM PARTEM”: 

It is a fundamental requirement for any fair procedure that, a board, authority or tribunal which is vested with power to affect the property, liberty or character of a citizen to give him/her an opportunity of being heard before it proceed. This principle is more far reaching of the principles of Natural Justice, since it embraces almost every question of fair procedure or due process. It is also broad enough to include the rule against bias since a fair hearing must be nonbiased hearing. The courts have succeeded in enforcing the principle varies widely, broadly speaking in all cases were legal rights or status are affected by the exercise of administrative power. 

In the case of REX vs. The University of Cambridge (1723) 1 STR 157. The university deprived a scholar of his degree in an account of his misconduct in insulting the Vice Chancellors court. The court of the Kings Bench reinstated him on the ground that: the deprivation was unjustifiable and that in any case he should have received a notice so that he could make his defense as require, as Judge Fortesque put it by the laws of God and man. 

Throughout the19th and 20th centuries, the courts open up a large new territory for the principles of natural justice, the character of the authority was not what mattered, what mattered was the character of the power exercised.

In 1863 a remarkable case played an important in reasserting the principle of the right to be heard. This was the case of Cooper vs. Ones worth Board of Works 1863 ER. Under an act of 1853 it was provided that “no one must put up a building in London without giving seven days notice to the local board of works and if any person did not do so, the board might have the building so that builder nevertheless began to erect the building in ones worth a district in London without having given a due notice and when his building was in a second floor, the board of work sent men late in the evening who demolished it. Hence the board did exactly what the act said they might do in exact circumstances in which the act said they might do it.

Their action was of course purely administrative nonetheless the builder brought an action for damages of the injury to his building. On the ground that: the board had no power to act without first asking him what he had to say for himself. In the unanimous decision, the House of Lords held that; the board of works was liable. Erle CJ “I think the board ought to have given notice to the plaintiff and to have allowed him to be heard. The default in sending notice to the board with the intention to build is a default which may be explained. There may be a great many excuses for the apparent default. A party may have intended to conform to the law; he may have actually conformed though by accident his notice may have been miscarried, I can’t conceive any harm that could happen to the district board from hearing the parties before they subjected him to a loss so serious as the demolition of his building.Willes J stated as follows “I am of the same opinion. I apprehend that the tribunal which is bylaw vested with power to affect the property of one of her majesty subject, he is bound to give such as a subject an opportunity to be heard before it proceeds and that the rule is of universal application and founded on the plainest principles of Justice. Now, is the board in the presence case such as tribunal? I apprehend it clearly is”. Another J Byles: said “It seems to me that the board is wrong whether it acted judiciously or ministerial I conceived they acted judicially because they had to determine the offence apportion the punishment as well as the remedy… although there are no positive words in the statute requiring that, the party should be heard yet the justice of the common law will supply the omission of the legislation.

CASES:

Nakuda Ally vs. Jayaratne 1951.

Ndengwavs Nairobi liquor licensing board  1957

Natural justice in East Africa are the same as in England.

HypolitoCasiano vs. Tanga Town Council (1961) E.A pg 377.

Simon Manyanki vs. IFM 1984 TLR 304.

CrisMaina Book – HR- Reasons for the decision.