CHAPTER VI

VI: RULES OF NATURAL JUSTICE

6.0. Introduction

The rule of natural justice is most important concept in Administrative Law.

These principles of natural justice or fundamental rules of procedure for
administrative action are neither fixed nor prescribed in any code. It is one of
great humanizing principle intended to invest law with fairness, to secure
justice and to prevent miscarriage of justice. 1These rules 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. They are an integral
part of the doctrine of rule of law. 2 The rules of natural justice are better known
than describe and easier proclaimed than defined.

The rules of natural justice can be traced as far as the history of man started
on earth. On referring the Holy Book, thus Bible the scene of Adam and Eve is
a good example of tracing the origin of principle of natural justice. It is settled
law that the rules of natural justice are binding on all courts, judicial bodies
and quasi-judicial authorities.

6.1. Principles of Natural Justice

Over the years there have been two principles of natural justice recognized and
observed, however the current trend in various jurisdiction have added another
limb on rules of natural justice, thus the third principle. These principles are;

 That, no man shall be a judge in his own cause, or the deciding authority
must be impartial and without bias (Nemo debet esse judex in propria
causa)

1
C.K. Takwani: Lectures of Administrative Law, p.143
2
C.P. Maina, p.426
  Hear the other side, or both the sides must be head or no man should be
condemned unheard or there must be fairness on the part of the deciding
authority (Audi alteram paterm)
 The right to know the reason for a decision (Nullum arbitrium sine
rationibus)

6.1.1. The Rule against Bias

This is the first principle of natural justice which is based on three maxims
thus;

 That, no man shall be a judge of his own cause3

 That, justice should not only be done, but manifestly and undoubtedly
be seen to be done4
 That, judges like Caesar’s wife should be above suspicion5

Bias means the influence of anything which tends or may be regarded as

tending to cause a person to decide a case otherwise than on evidence.6

This rule means that a judge should be impartial and a neutral and must be
free from bias. The judge is supposed to be indifferent to the parties to the
controversy and cannot judge in a cause in which he has some interest upon it.
One of the foundations of this principle is the statement of Chief Justice Coke
as far back as 1610 in the case of Dr. Bonham 7 whereas in this case the
College Physicians wanted to fine and imprison Dr. Bonham of Cambridge
University for practicing in the city of London without a license from the
College of Physicians. The law under which the College based its authority
provided inter alia, that proceeds from the fine should be divided with one half

3
Lord Coke in Egerton v Lord Derby (1613) 12 Co. Rep 11
4
Lord Hewert in R v Sussex Justices (1924) 1KB 256
5
Justice Bowen in Lesson v General Council (1889) 43 Ch D 366
6
Concise Oxford Dictionary (1995)
7
(1610) Co. Rep.113b
going to the King and the other half to the College had financial interest in its
own judgment and therefore it was a judge in its own cause.

There are three broad categories of bias which can lead to the disqualification
of a decision – maker. These are pecuniary interest in the subject matter of the
litigation; personal interest such as close relationship or kindred and official
bias.

(i) Pecuniary interest

It is well-settled that as regards pecuniary interest as in the case of R
v Farrant8 by Stephen J that ‘the least pecuniary interest in the
subject-matter of the litigation will disqualify any person from acting
as a Judge’. Pecuniary interest, however slight, will disqualify, even
though it is not proved that the decision is in any way affected 9’

(ii) Personal bias

There are number of circumstances which may give rise to personal
bias, such as a judge may be a relative, friend or business associate of
a party or he may have personal grudge, enmity or grievance or
professional rivalry against one of the party. Therefore, there is every
likelihood the judge may be biased toward one party or prejudiced
towards the other.10 In this respect it is important to show that a real
likelihood of bias exists. This is because justice should not only be
done, but should manifestly and undoubtedly be seen to be done.
This was emphasized by Lord Hewert in the case of R v Sussex
Justices ex parte McCarthy.11However it is important to ensure that
this does not lead to the wrong impression that it is more important
that justice should appear to be done than it should in fact be done.
Therefore, what is vital and central in this situation is that the judge
8
[1887] 20 Q.B. 58
9
Griffith and Street: Principles of Administrative Law, 4 th Edition, p.156
10
Ibid
11
(1924) 1KB 256
 should not hear the evidence of one side behind the back of the
other.12
In the case of Mwangi v Tusker13, the appellant submitted a tender
for a business and was awarded. Later it turned out that the firm
which was given a tender was not the one which tendered the lowest
bid i.e.it is not a must to accept the lowest bidder. But it was found
that two tender board members were the owners of some interest in
the firm. It was held that the award of tender was not proper as the
members were part to the firm.

(iii) Official bias

This may arise when the judge has a general interest in the subject-
matter. However, only rarely this bias would invalidate the
proceedings.14 A mere general interest in the general object to be
pursued would not disqualify a judge from deciding the matter; there
must be some direct connection with the litigation. Ministerial or
departmental policy cannot be regarded as a disqualifying bias.
Suppose a Minister is empowered to frame a scheme after hearing the
objections, the procedure for hearing the objections is subject to the
principles of natural justice insofar as they require a fair hearing, but
the Minister decision cannot be impugned on the ground that he has
advocated the scheme or he is known to support it as a matter of
policy.15

12
C.P. Maina, p.427
13
[1971] E.A 385
14
Griffith and Street: Principles of Administrative Law, 4 th Edition, p.156
15
Wade: Administrative Law, 1994, pp.488-491
 Other Cases on bias
Ndegwa v Nairobi Liquor Licencing Court16
The president of that court (tribunal) and two other members visited
and investigated the premises of Ndegwa and they were not impressed
with the situation. Therefore, they made a motion that the licence be
cancelled. During hearing also they gave evidence that the place was
suitable, thus decision was made against Ndegwa and he appealed to
the High Court. It was held that the two members constituted
prosecutors, witnesses and judges, it was said it amount to bias thus
the decision was invalid.

R v Bancley Metropolitan Borough Council

Mr. Hook was a pet trader in Bancley market. One day after market
time while people were cleaning the market, Mr. Hook while going
away he urinated in the premises of market and the market manager
saw him and warned him but he did not obey. The manager reported
him to the market Disciplinary Committee where he was called and
subsequently his licence cancelled. He appealed to the High Court on
the ground that the Committee was biased as the market Manager
was sitting with the Committee while deliberating on the decision.
Although the manger did not say anything, but the court went on
saying that it was sufficient to invalidate the decision.

R v Kent Police Authority exparte Golden

The police officer, Golden who went to see a Doctor, the Doctor
reported that Golden had a mental disorder making him unfit to work
as a police officer. After getting the information the Police Authority
decided to take some measures for terminating Golden. The police
registration rules provided that for a person to be compulsory
terminated a person has to be bought before the Doctor who will
16
Oluyede, p.100
 make appropriate certification. But the former report was not in the
form of certification. The Authority took the form and gave it to golden
so that he can submit it to the same Doctor, whereby Golden rejected
that the Doctor would be bias. Golden appealed to the Court where it
was held that the Doctor would be bias hence Golden would have
been referred to other Doctor.

6.1.2. The Right to be heard

This is the second principle of natural justice, also known as hear the other
side principle. This principle is explained that no man should be condemned
unheard, or both sides must be heard before passing any order. According to
de Smith, that ‘no proposition can be more clearly established than that a man
cannot incur loss of liberty or property for an offence by a judicial proceeding
until he has had a fair opportunity of answering the case against him 17’.
Basically the right to be heard has been embodied into two limbs, thus notice
and hearing.

(i) 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 a sine quo non of the right of fair hearing 18. The person should be
adequately briefed of the case facing him, this is important for the
purposes of arming the accused properly as he can only effectively
controvert that which he is aware of. Also, he can only conduct a
meaningful cross-examination of witnesses deposing against him if he
has access to everything against him19. Therefore, any order passed
without giving notice is against the principles of natural justice and is
void abinitio.

17
De Smith: Judicial Review of Administrative Action, 1995, p.380
18
C.K. Takwani: Lectures of Administrative Law, p.159
19
C.P.Maina, p.428
 (ii) Hearing
This is the second limb of the principle of right to be heard, whereby
the person should be given the right to face his accusers. Therefore,
tribunal trying to ascertain facts in a matter before it and it can
obtain information in any way it thinks best, always giving a fair
opportunity to those who are parties in the controversy for correcting
or contradicting any relevant statement prejudicial in their view 20.
Also in the case of Local Government Board v Arlige 21, Lord
Haldane stated that ‘those whose duty is to decide… must act
judicially, they must deal with the question referred to them without
bias, and they must give each of the parties the opportunity of
adequately presenting the case made…the decision must be…in the
spirit and with the sense of responsibility of a tribunal whose duty is
to mete out justice’.
However, it should be noted that the right to be heard does not
necessarily mean that there must be an oral or personal hearing; the
hearing can be also in the form of representation and through writing.
Moreover, the right of representation by a lawyer is not considered to
be part of natural justice and it can not be claimed as a right.
However the practice direct that if a person is willing to be
represented and afford such representation he should not be denied
such right as observed by C.K. Allen that ‘experience has taught me
that to deny persons who are unable to express themselves the
services of a competent spokesman is a very mistaken kindness 22’.
Also in the case of Pett v Greyhound Racing Assn (I), Lord Denning
observed that ‘when a man’s reputation or livelihood is at stake, he

20
Lord Loreburn in Board of Educaton v Rice and Others [1911] A.C.179
21
[1915] A.C.120
22
C.K.Allen: Administrative Jurisdiction, 1956, p.79
 not only has a right to speak by hi own mouth. He has also a right to
speak by a counsel or solicitor23… even a prisoner can have his
friend24’.

6.1.3 The right to know the reason for a decision (speaking orders)

Speaking order means the order speaking for itself, thus every order must
contain reasons in support of it. It is not enough to have a tribunal which is
not biased and for the person whose rights or legitimate expectations may be
affected by the decision of that tribunal to be afforded opportunity to controvert
adverse testimony against him, thus it is now established that the tribunal has
a duty to furnish the accused with the reasons for the decision reached 25. The
object of providing reasons for decision as observed by Flick that ‘reasons are
valuable check on both the exercise of formal and informal decision-making. They
provide the means whereby a party is appraise of why a decision has been
made and they provide some guidance to those who have to advise the public as
to the attitudes of the administration’ 26. Therefore, the right of the accused to
know the result of the inquiry and the reasons for the decision has now become
the third principle of the rules of natural justice.

The position in England as regard to right to know reason for decision there is
no general rule of English law that reasons must be given for administrative or
even judicial decisions27. However, Lord Denning once said that in the case of
Breen v Amalgamated Engg. Union 28 ‘the giving of reasons is one of the
fundamentals of good administration’. Thus, the condition to record reasons
introduces clarity and excludes arbitrariness and satisfies the party concerned
against whom the order is passed29.
23

24
(1968) 2 All ER 545
25
C.P. Maina, p.429
26
Flick, Geofrey, Natural Justice: Principles and Practical Application, p.111
27
De Smith: Judicial Review of Administrative Action, 1995, p.380
28
(1971) 1 All ER 1148
29
C.K. Takwani: Lectures of Administrative Law, p.171
This third limb of rules of natural justice is a new development of
administrative law, whereby the old view was that once the tribunal has met
the two main requirements of natural justice then it had no duty to give the
reasons for its decision. It was said that to insist that administrative
adjudication should be accompanied by a formulation of reasons is to require
of the administrative process a higher standard than the demanded of the
courts of law30. However the new position seems to have begun with the
dissenting judgment of Lord Denning, M.R. in Breen v Amalgamated Engg
Union where he said that, ‘reasons must be given whenever it is fair to do so.
Not always, but sometimes. It all depends on what is fair in the circumstance’.

Also in the case of R v Immigration Appeals tribunal ex parte Khan

(Mahmud)31, Lord Lane, C.J indicated that ‘a party appearing before a tribunal
is entitled to know…what is to which the tribunal is addressing its mind…
second, the appellant is entitled to know the basis of fact of which the conclusion
has been reached…’

6.2. Rules of Natural Justice in Tanzania

Formally, the rules of natural justice were introduced in the Constitution of

United Republic of Tanzania through the Bill of Rights of 1984. Article 13 (6) (a)
of Constitution provides that;

`For the purposes of ensuring equality before the law, the State shall make
provisions to the effect that,

When the rights and duties of any person are being determined by the court of
law or any other body, such a person shall have the right to be fairly heard and
shall have the right to appeal against the decision of the court of such other
body`

30
Flick, Geofrey, Natural Justice: Principles and Practical Application, p.86
31
[1983] All E.R 420
However, even before the incorporation of the Bill of the Rights into the
Constitution the courts of law had developed a tradition of applying these rules
as done elsewhere under the common law system and particularly through
case law32. The following cases are examples which demonstrated the
application of rules of natural justice in determination of cases by the High
Court, Court of Appeal of East Africa and the Court of Appeal of Tanzania.

Hypolito Cassiano De Souza v Chairman and Members of the Tanga Town

Council33
Appellant was employed by Tanga Town Council as a fire master. The
allegation against De Souza was that an employee was seen at his premises
appearing as if he was assigned to work for the fire master contrary to the work
of the Town. The two Councillors reported the matter to the Committee. At a
hearing before the Finance Committee, the appellant and his Advocate were
kept out for some time while the Committee held private discussions with the
two complainants who were present, although they were not members of the
Committee. The nature of discussion held was never disclosed to the appellant
and Advocate. Also when the hearing commenced appellant and his Advocate
were not provided with the particulars of the charges against him. The
Committee recommended that the appellant be dismissed from work. The
appellant appealed to the High Court for writs of certiorari and mandamus for
the decision of the Committee be quashed as against principles of natural
justice. The High Court rejected the appeal on the ground that the quasi-
judicial bodies have no duty to observe the principles of natural justice. The
appellant appealed to the East African Court of Appeal, whereby the court
directed that the writ of certiorari be granted to bring up and quash the
decision of the appeals committee and the decision of the Council dismissing
the appellant. In addition, the court directed that mandamus be granted
addressed to the Chairman and members of the Tanga Town council to cause
to be heard and determined the complaint against the appellant in accordance
32
C.P. Maina, p.431
33
(1961) E.A 377
with the provisions of the Staff Regulations and the principles of natural
justice. Giving guidance on the application of the rules of natural justice, the
court indicated that;
(i) The person accused must know the nature of accusation made
against him
(ii) A fair opportunity must be given to those who are parties to the
controversy to contradict any statement prejudicial to their view, and
to make any relevant statement they may desire to bring forward; and
(iii) The tribunal should see that a matter which has come into existence
for the purposes of proceedings is made available to both sides and,
once the proceedings have started, if the tribunal receives a
communication for one party or from a third party, it should give the
other party any opportunity of commenting on it.

Re An Application by Bukoba Gymkhana Club34

A Liquor Licensing Board refused to renew the applicant’s liquoir licence on the
ground that its constitution was ‘still largerly discriminatory’, in that a new
member had to be proposed by a member and seconded by a member. The
Club had had its liquor licence renewed for the previous thirty – four years; the
Club was not present at the Board’s meeting which rejected the Club’s
application; and no recent changes had been made to its rules. The law
granting the power to the Board stated that the Board could “ in its discretion
grant or refuse such application”. The Club then applied for orders of certiorari
and mandamus. Granting the application Reid J held that ‘the Board being a
body of persons having legal authority to determine questions affecting the
rights of subjects it has the duty to act judicially and that no opportunity was
given to the licence applicants to present their case or to meet the Board’s
objections…I do find that to reject the licence application for the reason which
it gave, and in the way that it did was clearly unreasonable’.

34
[1963] E.A 478 (Tanganyika)
Mahona v University of Dar es Salaam35

The applicant in this case was terminated from the employment by the
defendant on disciplinary grounds. He appealed to the Labour Concilliation
Board and was successful. The defendant appealed to the Minister for Labour.
The applicant was not supplied with a copy of the memorandum of appeal
submitted by the defendant nor was he given the opportunity to be heard by
the Minister before making the decision. The Minister reversed the decision of
the Labour Concilliation 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 as the
procedure laid down under both the University of Dar es Salaam Act, No.12 of
1970 and the Security of Employment Act, 1964 were not followed. Agreeing
with the applicant, Kisanga, J. held that there was breach of the rules of
natural justice as the ground 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 of the rules
renders the decision made null and void.

Moreover, the courts of law have gone further to introduce the third limb in the
rules of natural justice. That is the right of the affected person to be given the
reasons for the decision made or in other words, the duty of decision maker to
provide reasons or grounds for his decision36.

James F. Gwagilo v AG37

This case was on alleged powers of the President of the United Republic of
Tanzania to retire civil servants in ‘public interest’. It was inter alia, held that
by Mwalusanya, J. the President had a duty to give reasons for this decision
and he cannot act arbitrarily. Also this view was taken by Samatta, J.K. in Said
35
[1981] T.L.R.55
36
C.P. Maina, p.433
37
High Court of Tanzania at Dodoma, Civil Case No.23 of 1993 (Unreported)
Juma Muslim Shekimweri v AG38 where again the President purpoted to retire
an Immigration Officer in public interest without giving any reasons.
Distinguishing the common law authorities which held that civil servants could
be dismissed at the pleasure of the Crown. His Lordship held that was not part
of the law of this country. When a civil servant is dismissed cause must be
assigned.

6.3. Exclusion of Natural Justice

Though the rules of natural justice have now a definite meaning and
connotation in law, and their content and implications are well-understood and
firmly established, they are nonetheless not statutory rules. Therefore, there
are situations which demand the exclusion of the rules of natural justice by
reason of diverse factors like, time, place, and the apprehended danger and so
on39. Thus, the following are the circumstances upon which the rules of natural
justice cannot be applied;

a. Statutory disapplication
This happens only when there is a procedure stipulated in a Statute on
dealing with a certain case, thus the rules of natural justice do not apply
but the statutory procedures have to be followed.
Franklin v The Minister for Town & Country Planning 40
In this case the Minister followed the procedure in the Town Act which
required, whereas he was required to receive objections of the people
affected by the designation of the town. He sent the proposal and
objections were sent back by the people. The people challenged his
38
High Court of tanzania at Dar es Salaam, Miscellaneous Civil Cause No.3 of 1996 (Unreported)
39
C.K. Takwani: Lectures of Administrative Law, p.185
40
[1948] AC 87
 decision on the ground of bias as in his previous meeting he said that he
will do anything to make sure that the town is designated, and thus they
alleged that he did not consider the objections with an open mind. The
Court dismissed the application as the Minister had already followed the
procedure.

b. Legislative process
The Parliament and Administrative Authorities makes laws, but these
bodies are not required to make consultation unless the law provides for
that effect. For instance the making of laws to be applicable in Local
Government, the issue of calling objections is just an exception but
generally it is not mandatory.
c. Waiver
This refer the right which has to be exercised but a person to benefit
from it denies such right. For example is a person is given a right to be
heard but he decided not to speak. In criminal cases, a person who is
called to plead but remains quiet the Court enters a plea of not guilty or
a person refusing to give evidence in a case a negative inference can be
drawn against him.

d. Initiating procedure
These are procedures of preliminary nature where the determination of
the issue cannot be relied on. For example during the investigation,
committal proceedings or suspention from work in labour relations.
However, there is an exception to the rule whereby to some of the
initiating procedure the rules of natural justice must be adhered.

Munuo Ng’uni v Judge in Charge and Another

This case involved the assignment of dock breaf, whereby a judge
assigned the dock brief to the Advocate who had to represent a person in
 a Criminal Aid, but Munuo rejected the assignement and consequently
his practice licence was suspended by the Judge in Charge. The Court
said that when the person’s right is to be affected a person must be given
a right to be heard.

e. Necessity
This is applied so as to see the conclusion of cases. For example where a
person does not appear during hearing and the court has been
adjourning the case for a period of time, then upon appearing such
person cannot claim for further adjournments.
Masumbuko Rashid v R41
The adjournment was sought for the sake of engaging an Advocate and
the court rejected it. The appellant being charged before the court for
criminal offences, they appeared before the District Court on 26 th
December 1985 and entered a plea of not guilty. They made no request
whatsoever. On 8th January 1986, the case came up for hearing. It was
then the four accussed persons told the court that they wanted to engage
an Advocate. The case was adjourned. The following date the accussed
repeated their request, but the learned Magistrate ruled that the case
should proceed and the charge be read over to them, at that time the
accused persons left the dock in protest.

41
[1986] TLR