%20(28).png)
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 19th 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.3rd 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, 5th Ed,
Oxford University Press , Oxford.
Article
Issa M
“Know about rules of Natural Justices” The
Business Times News Paper, Friday Feb 27th 2004 at P 5
%20(10).png)
%20(18).png)
%20(26).png)
%20(28).png&description=Audi alteram paterm as a principal of natural justice (wide scope of the process of hearing)){kind=link}
0 Comments
PLACE YOUR COMMENT HERE
WARNING: DO NOT USE ABUSIVE LANGUAGE BECAUSE IT IS AGAINST THE LAW.
THE COMMENTS OF OUR READERS IS NOT OUR RESPONSIBILITY.