Right to fair hearing embraces a number of issues where fair hearing is just a part. How does such issues support the concept of a fair hearing? By Johnson Yesaya

 INTRODUCTION

AUDI ALTERAM PARTEM, this is the so called, the right to fair hearing. Fair procedure is fundamental that both sides/parties be heard, that a board or tribunal vested with power to act and therefore affect property, liberty, rights and character of the citizen has to give parties an opportunity of being heard before it goes on to make decision. This principle is far reaching of principles of natural justice since it can embrace almost every question of fair procedure (due process). Fair trail comprised of a lot of issue which are to be put together to say that a trial was fair, the accurate legal procedure to conduct a trial or hearing is to be adhered without leaving a doubt that may change the image of a trial to unfair trial or hearing. 

A right to fair hearing is a constitutional right to many jurisdictions, in United Republic of Tanzania, this right is grounded by Article 13 (6) (a) of the constitution , the article guarantees a right to fair hearing to an accused person without discrimination, the same article requires an accused or convict to be given a right to appeal against decision of a court or any agency which passed decision affecting accused, the article provides that;

“To ensure equality before the law, the state authority shall make procedures which are appropriate or which take into account the following principles, namely: (a) when the rights and duties of any person are being determined by the court or any other agency, that person shall be entitled to a fair hearing and to the right of appeal or other legal remedy against the decision of the court or of the other agency concerned;”

The principle of fair hearing is the basic concept of the principle of natural justice. The omnipotency inherent in the doctrine is that no one should be condemned unheard.  This principle has been applied in administrative actions to ensure fair play and justice to affected persons. Its application depends upon the factual matrix to improve administrative efficiency, expediency and to mete out justice. The procedure adopted must be just and fair. The expression audi alteram partem simply implies that a person must be given an opportunity to defend himself against charges on him before being punished.  This principle is a sine qua non of every civilized society. Corollary deduced from this rule is qui aliquid statuerit, parte inaudita altera aeuquum licet dixerit, haud aequum facerit i.e. he who shall decide anything without the other side having been heard although he may have said what is right will not have done what is right. The rule of fair hearing is a code of procedure, and hence covers every stage through which an administrative adjudication passes, starting from notice to final determination.

ISSUES SUPPORTING A CONCEPT OF FAIR HEARING

A right to notice, among other things, notice is among the exhibits which prove the legality of a trial or hearing. It is a requirement of the law to serve a defendant with a notification on a suit filed against him. A notice which states clearly a kind of suit filed by a plaintiff, claims, and other necessary details which are necessary for a defendant to take a reasonable action against a suit. A notice must include time, place and nature of hearing, legal authority under which hearing is to be held, statement of specific charges (or grounds) and proposed action (or grounds) which the person has to meet. In some cases, notice is not mandatory if a court satisfy itself that, a defendant had knowledge on the suit filed against him. 

In the case of R v. Cambridge university , The University of Cambridge has deprived a scholar of his degree on account of his misconducts in insulting the vice Chancellor’s court. The Court of Queen’s Bench reinstated on a mandamus on the ground that the dismissal was unjustifiable and that in any case he should have received notice so that he could make his defence as required by the law of good and bad. This case laid a foundation that, before making decision on a matter which affects interest of another person, that person charged with offence or claims must prior served a notice before passing decision as to give him a chance to prepare defence of his case.

In the case of Cooper vs. Wondsworth Board of Works , under a statute of 1885, it was provided that, “No one might put up a building in London without giving 7 days notice to the Local board of Works and that if any one did so the board might have the building demolished”. A builder erected a building without any notice to the board, when the building reached the 2nd storey the Board of works sent men late in the evening who demolished it, a plaintiff sued the board for unlawful demolition because he was not served any notice to explain why he proceeded with erection of building without notice.

The court held that, - (principles) Erle C.J;

“I think the Board ought to have given notice to the plaintiff and allowed him to be heard. The default in sending notice to the Board of the intention to build is a default which may be explained. There may be a great many excuses for apparent default. The pad may have intended to conform with the law, He may (have) actually conform though by accident his notice may have mis-carriaged. I cannot conceive any harm that would happen to the District Board from hearing the part before they subjected him to a loss so serious as to demolish his house”

A right to know evidence against him, a defendant or vice versa has a right to know the evidence which is going to be used against him in a hearing. The laws went further to allow parties to inspect and take notice on the contents of the evidence submitted or to be submitted before court, this is among basic rights which compliment a principle of fair hearing or trial. Denial to the right to know evidence submitted against a party in a case is fatal and forms a strong ground for appeal.

In Dhakeshwari Cotton Mills Ltd V. Cit, In this case the appellate income tax tribunal did not disclose the information supplied to it by the department. The Supreme Court held that, the party was not given fair hearing. However, the supply of adverse material, unless the law otherwise provides, in original form is not necessary. It is sufficient if the summary of the contents of the material is supplied provides it is not misleading. A person may be allowed to inspect a file and take notes. Whatever mode is used, the fundamental remains the same that nothing should be used against the person which has not been brought to his notice .

Right to present case and evidence, parties in a case or suit must be given a right to present their cases before court, a party is allowed to call witnesses, to bring any document admissible as exhibit supporting his case, and to bring any object or thing which is among exhibits supporting his case. Denial by court to a right to present a case by party is fatal and the decision of the court will be null. A party can present a case orally or through submitting written documents or both if necessary under the permission of the court. A party may decide to present a case orally or by documents, and when one among methods of presenting a case is granted, it is enough to say that a right to present a case by party was granted by court. 

In Union of India V. J. P. Mitter, a standard of a right to present a case by party was set, where a court of law decided that, it is enough to say a party was given a right to present his case if he was either allowed to present a case orally or by submitting documents. It is not mandatory for a party to present a case orally and in a written form unless there is reason to believe that there is a need for a party to present a case in both modes of presenting a case.

A case to be heard by an independent and impartial decision maker, this is another right comprising a principle of fair hearing or trial. It is a requirement of the law that, a decision maker must be free from conflict of interests so as to decide a case before him on basis of evidence and facts adduced by parties and not personal relationship and emotions by a decision maker. Parties are allowed to bring into attention of the court, any element of interests by decision makers which may results to conflict of interests.

A right to rebut adverse evidence, parties in a case or suit are entitled a right to rebut evidence submitted against their cases, a party can rebut evidence of his opponent by cross- examination, it is when one party asks questions to destroy opponent’s witness testimony so as to shake the credibility of the witness and to reduce value of the evidence adduced before court. 

In Town Area Committee V. Jagdish Prasad, the department submitted the charge-sheet, got an explanation and thereafter straightaway passed the dismissal order. The court quashed the order holding that the rule of fair hearing includes an opportunity to cross-examine the witnesses and to lead evidences was not met. 

CONCLUSION

Fair hearing requires proper steps of conducting hearing to be adhered during hearing from a point of serving a notice to the decision of the court. A good decision of the court is one which is well reasoned, a reasoned decision is also part of the principles of natural justice. A court which pass decision must state clearly that, a decision reached based on valid requirements of the law. A decision maker in his decision paper, must show all facts adduced by parties, also exhibits submitted by parties must appear on decision paper, answers to the interlocutory proceedings if exists, the precedents in relation to the suit on hands of a court and proper provisions of the laws which form basis of the decision.

After decision, parties must be formed about their rights to appeal if they are aggrieved by the decision of the court and timeline upon which they are required to lodge their appeals, reviews or revisions.

REFERENCE

BOOKS

Phil Kunjombe, The Principles of Natural Justice, 2010

Thakker, C.K (1995), Lecturer on Administrative Law, Eastern Book Company, Lucknow.

Takwani, C.K.C (1998), Administrative Law, 4th Ed, Eastern Book Company, New Delhi.

Oluyede, P.O (2006), Administrative Law in East Africa, Kenya Literature Bureau, Nairobi.

ONLINE

http://www.legalservicesindia.com/article/1860/Audi-Alterem-Partem-Right-to-fair-hearing.html

https://www.parliament.uk/site-information/glossary/delegated-or-secondary-legislation/

CONSTITUTION

The Constitution of United Republic of Tanzania, cap 2 of 1977 as amended.