KNOWLEDGE AREA IV: PRINCIPLES OF NATURAL
JUSTICE
Natural justice relates to the idea of Fairness, the sense of equity and equality. It’s built based
on common sense considering humanity. Rules of natural justice are usually not provided for
in statutory enactments but are presumed by courts. They were invented by common law courts.
Thus, in Cooper v. Wandsworth Board of Works (1863), it was held that demolition powers
vested in the defendant Board were to be subject to notice and hearing requirements. Of recent,
however, these rules are recognized by many statutes and Constitutions (see article 13(6)(a) of
the Constitution of URT).
“...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”
ORIGIN AND DEVELOPMENT OF THE RULES OF NATURAL JUSTICE
The meaning of the expression “natural justice” as used in legal jurisprudence has never been
adequately clear. It has meant different things to different authors. Garner, J.F. (1970) notes in
this regard: “The common lawyers, however, have used the expression ‘natural justice’ with
surprising precision of meaning, as referring to two important but narrow principles only,
namely audi alteram partem (hear both sides), and nemo judex in causa sua (no one can be
judge in his own case). In its modern sense the expression ‘rules of natural justice’ is used to
mean rules of fairness that are to be observed by a person who makes a decision that may affect
the rights of another. Professor Peter writes, “Rules of natural justice are about fairness and
justice in the society. They address how judicial, administrative, or other organs are to function
in the process of reaching a fair decision in the determination of any issue before them. These
rules of fair play in the administration of justice are regarded as universal and rules of the wise
(Peter, C.M. 1997)
The development and applicability of the rules of natural justice have had an eventful history.
In the 19th Century, the applicability of natural justice especially the right to be heard was wide.
It is equally applied to areas that may be described as administrative. In the 20th Century, things
changed. English Courts began to draw a dichotomy between administrative and judicial
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decisions. They took a narrow view of what constituted a judicial or quasi-judicial decision and
required this as a condition precedent for the application of a right to a hearing. This trend went
on for a considerable time. In the early 1960s, the attitude of courts changed. The turning point
was the case of Ridge v. Baldwin (1963). Ridge’s case is very important in so far as the
applicability of the rules of natural justice is concerned. It did away with the previous judicial
style of making the distinction between “administrative function” and “judicial or quasi-
judicial function.” It held that rules of natural justice applied to all decisions affecting personal
rights irrespective of the form of the decision-making process or the nature of the body making
that decision. In the words of Bradley and Ewing, Ridge v. Baldwin “has laid the foundations
of judicial review today”. The position of law expressed in Ridge v. Baldwin is that there is
no need to distinguish between judicial and administrative functions. If rights of an individual
are at stake the rules of natural justice would apply irrespective of whether the function being
exercised is administrative or judicial. Ridge v. Baldwin has widened the scope of applicability
of the principles of natural justice.
1. THE RULE OF FAIR HEARING / RIGHT TO BE HEARD / HEAR THE
OTHER SIDE (AUDI ALTERAM PARTEM)
This principle is expressed in the maxim that “no man should be condemned unheard”.
Generally, according to this principle, a decision should not be taken against a certain
person without affording him a right to be heard – a reasonable hearing. He must be called
to answer accusations against him; he must be heard. Deals with providing an opportunity
for parties in a dispute to understand the reason behind it, get information about the case,
and the basis of the decision made.
The immediate question that comes to mind is what entails hearing. Hearing entails three
main things, namely,
i. sufficient notice of allegation or accusation must be given to a party,
ii. fair opportunity must be given to a party to present his case and to contradict any
statement prejudicial to his interest, and
iii. right to legal representation.
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Some writers have included other items out of this list. The right to be informed in advance of
the case to be met – i.e. the factual basis on which the decision-maker may act; the right to a
reasonable time in which to prepare a response; the right to be heard verbally or in writing; the
right to cross-examine persons who may have prejudicial statements to the decision-maker; the
right to be legally represented; and the right to the reasons of the decision.
Peter Kay on Rule of Fair Hearing – On the sufficient of the notice, the notification must
be in more or less detail of the case, adequate time to prepare the case; answers, and access to
all materials. He also demands the right to present one’s case in oral or in writing; the right to
examine and cross-examine witnesses and the right to be represented perhaps by a qualified
lawyer.
CASES:
• Nyirabu Gitano and 3 others v. Board Chairman, Songea Boys Secondary School –
High Court (at Songea), Misc Civil Application No 3 of 1994 (unreported).
Students of Songea Secondary School were complaining of maladministration, infliction of
unreasonable punishments, and supply of bad food. They staged a demonstration to the
Regional Commissioner. The Regional Commissioner then spoke to students and members of
staff. A probe team was formed to look into the matter. It interviewed six student leaders and
three other students including one applicant but the rest were not interviewed or consulted in
any way. The team also collected other information that indicated the applicants were ring-
leaders. The team then recommended the expulsion of the applicants to the School Board, a
recommendation which was endorsed. In deciding to expel the applicants from school, the
applicants were neither given an opportunity to contradict the evidence against them nor even
told of reasons for their expulsion. They challenged their expulsion in the High Court on
grounds of the Board’s failure to observe the principle of natural justice. Samatta, JK, as he
then was, granted certiorari and mandamus to quash the decision of the Board to expel
applicants from school, and directed the Board to consider the accusations made against the
applicants de novo and in accordance with the principles of natural justice.
• Felix Bushaija and others v. IDM and another, High Court (at Dar es Salaam), Civil
Case No 9 of 1991 (unreported).
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• Francis Mallomo vs NMB Bank Plc (Revision No. 235 of 2020) [2021] TZHCLD 441
(20 September 2021).
THE DOCTRINE OF LEGITIMATE EXPECTATION
The doctrine of legitimate expectation is a recent development in public law in the 1960s. This
doctrine is an extension of the right to be heard in circumstances in which such a right would
ordinarily not avail to an individual. According to Mr. Justice Michael de la Bastide, “It is a
product of judicial inventiveness designed to fill a gap in the protection which the courts offer
against arbitrary action by public officials and authorities with the power to make decisions
that affect others.”. In accordance to the doctrine, a hearing will be given if there is, inter alia,
“legitimate expectation.” What does legitimate expectation mean? Mr. Justice Michael de la
Bastide explains the meaning of the doctrine in these words:
“What the courts have established is the principle that if a public official or authority has
either expressly or implicitly conveyed to a person or group of persons the impression that
they will receive or continue to enjoy a certain benefit or concession, then in the absence of
some overriding public interest to justify disappointing the expectation thereby created, the
courts will not countenance the denial or withdrawal of that concession or benefit, even
though there is no legal right to it.”
Case law has established that there are circumstances in which an individual will have to be
given a hearing due to legitimate expectations. Such circumstances are as follows;
i. Revocation of a decision: when an authority has made a decision affecting an individual
that it later seeks to replace with a fresh decision, the person to be affected will have to
be given a hearing (See. Re 56 Denton Road Twickenham [1953] Ch. 51)
ii. Breach of assurance: the authority may act contrary to the assurance that it had given
to an individual. In such a case, the court may enforce the legitimate expectation created
by that assurance. It’s said, “When a public authority has promised to follow a certain
procedure, it is the interest of good administration that it should act fairly and
implement its promise, so long as the implementation does not interfere with its
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statutory duty.” (R. v. Home Secretary, ex parte Oloniluyi [1989] Imm AR 135)
(Mohamed Jawad Mrouch v Minister for Home Affairs [1996] TLR 142)
iii. Consistent practice of the authority: in Council of Civil Service Unions v. Minister for
Civil Service [1985] AC 375, the invariable practice of Government had been to consult
with the civil service unions before changing terms of employment for civil servants. It
was held that the unions had a legitimate expectation to be consulted before the
government withdrew staff the right to join a union.
iv. Change of policy: in Re Findlay [1985] AC 318, the Home Secretary changed the policy
on granting parole to convicted prisoners, causing certain prisoners to become eligible
for parole much later than would have been the case under the former policy. Lord
Scarman said: “But what was the legitimate expectation? Given the substance and
purpose of the legislative provisions governing parole, the most that a convicted
prisoner can legitimately expect is that his case will be examined individually in the
light of whatever policy the Secretary sees fit to adopt.”
2. THE RULE AGAINST BIAS (NEMO JUDEX IN CAUSA SUA)
The rule Nemo judex in causa sua (no man should be a judge in his own case), freedom from
bias, or right to an impartial or unbiased tribunal is another important principle of justice. The
rule against bias is based on two salient principles:
i. No man should be a judge in his own case: a person who decides a matter should not
have an interest in that matter. It is based on the experience that human nature being
what it is, it is highly unlikely (almost impossible) that a person will decide against his
own interests, instead, it is almost certain that a person would decide a matter in favor
of his own interests.
ii. Public confidence: a proper administration of justice must instil people’s confidence
in the judicial or adjudication process. As has been expressed by Professor Wade:
“Justice should not only be done but should manifestly and undoubtedly be seen to be
done.” Inspired by the same principle, Lord Denning aptly said: “Justice must be rooted
in confidence and confidence is destroyed when right-minded persons go away thinking
‘the judge was biased’.” Thus, as one may note, law is not only concerned with justice
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being done. But, it also concerned itself with the impression given to the other members
of the public.
Bias – What is it?
Bias is basically an operative prejudice against the party/matter in question. It includes both
conscious and accidental (intentional and unintentional). Lord Goff in R. v. Gough asserted
that “bias is such an insidious thing that, even though a person may in good faith believe that
he was acting impartially, his mind may unconsciously be affected by bias.”
Forms of Bias
i. Pecuniary Bias - denotes the existence of monetary interests in the subject matter or a
party to a case. Courts have been very strict in so far as pecuniary interests are
concerned. The English case of Dimes v. Grand Junction Canal (1853) is an
illuminating example in this regard. It was held in that case that a judge who held shares
in a company, that was a party to the case, was disqualified irrespective of whether he
was actually biased or not. In R. v. Rand (1866), it was partly held: “Any direct
pecuniary interest, however small, in the subject of inquiry, does disqualify a person
from acting as a judge in the matter.”
ii. Personal Bias - Various circumstances may give rise to personal bias: personal
relationships (friendship, relationship by blood or affinity, classmates, etc.), personal
animosity, etc. For instance, in Ernest s/o Ndesangio v. R. (1980), the appellant (a court
clerk) was charged with several counts of forgery and stealing by a person employed in
the public service. The trial magistrate was his own boss. The appellant objected to the
magistrate on the ground that he (the magistrate) had exhibited unnecessary hostility
towards him (the accused) when checking his work. The magistrate overruled the
objection and he indicated that “he loved the accused to the bottom of his heart.” It was
held (Samatta, J) that: “the risks involved in a person occupying a judicial office trying
a person who is dear to him are not difficult to imagine. One of them is the strong
possibility that the judicial officer may succumb to the temptation to favour the accused
or to demonstrate impartiality on his part by convicting the accused although the
evidence in the scale against him (the accused) does not warrant such a decision. In
either case, justice would suffer.”
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iii. Subject to Matter Bias - Sometimes an adjudicator might have a general interest in the
subject matter which may disqualify him from sitting. In Hoektra v. HM Advocate
(2001) a senior Scottish judge, who had newly retired but was still sitting as an appeal
judge, published a colorful newspaper article in which he referred to the European
Convention as offering’ a field day for crackpots, a pain in the neck for judges and a
goldmine for lawyers.’ It was held that the article would create an apprehension that
the judge would be biased in presiding over a criminal appeal in which Dutch appellants
were relying on their Convention Rights.’
iv. Pre-conceived Notion Bias – related to deciding by taking into account experiences or
what is previously known instead of the facts and evidence. The decision maker is
required to make a decision based on facts and evidence. The evidences have two rules:
have to be available and should be relevant. This is the most delicate form of bias.
CASES:
• Jimmy David Ngonya v National Insurance Corporation Ltd [1994] TLR 28
• R. v Seif Sharrif Hamad [1992] TLR 277
• Republic v Albert Awour & 3 others [1985] TLR 20
3. EXCLUSION OF THE RULES OF NATURAL JUSTICE
Modern legal jurisprudence and public administration have witnessed the increased application
of the rules of natural justice. The decision of the House of Lords in Ridge v. Baldwin was very
instrumental in widening the scope of their application. Inventions of new principles by courts
like the doctrine of legitimate expectation have also played their magic. More and more people
(including those in the higher echelons of power) are demanding the application of the
principles of natural justice.
However, there is no principle that says that the rules of natural justice would apply in each
and every case. There are cases where the courts have held that such principles would not
apply in certain circumstances. Below are some areas in which natural justice may be excluded
on some grounds:
➢ The Rule of Fair Hearing:
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i. The Doctrine of Waiver - an individual may waive his right to natural justice.
Simply stated, waiver or acquiescence means to relinquish, surrender, or give up
one’s rights. For instance, a person may waive his right to be heard by failing to
appear before a certain body when requested to do so.
ii. Preliminary Decisions – application of natural justice is ordinarily excluded at the
time of making preliminary decisions pending further decisions. i.e. rustication of
students from university campus.
iii. Decisions Involving purely Technical/administrative affairs - there may be
decisions that are purely technical for which an individual affected may not be
afforded the right to be heard. i.e. GPA below 1.8 or if caught cheating during
University Examination.
iv. Decisions Concerning Emergency – i.e. Outbreak of disease in a school that
threatens the life of students, the management can close the school without
consulting the students.
v. Issues Concerning National Security – when dealing with sensitive issues of
national security, war, etc. rules of natural justice may be excluded.
➢ The Rule Against Bias:
i. The Doctrine of Waiver
Likewise, a person may waive his right to an unbiased tribunal by expressly or impliedly
allowing the biased adjudicator to proceed with the adjudication. In A.K. Sikabuza v. Director
of Land and Survey [1960] EA 808, the Board cancelled the license of the plaintiff under
section 12 of the Surveying Ordinance. The composition of the Board consisted of rival
surveyors. However, it was found that the appellant did not challenge such composition and
hence waived his right.
ii. Necessity
The normal rules against bias will be displaced in circumstances where the individual whose
impartiality is called into question is the only person empowered to act. In situations of
emergency, proceedings may be heard by persons regardless of whether they are biased or not.
Likewise, the right to be heard may be disregarded in such a situation.
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iii. Where all available adjudicators are affected by the same disqualified interest and
there’s no other option.
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