The rule of natural justice

Thesis Overview

<p> </p><p><strong>INTRODUCTION</strong></p><p><strong>1.1. &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;</strong><strong>Background of the Study</strong></p><p>The concept of natural justice is as old as man; it is the universal principle of fairness that was arrived at by the observation of nature. It is the name of the divine law as God would have us understand it; which is the Golden rule. Thus, the principle of natural justice is also seen to be as old as God’s judgments. When Adam and Eve disobeyed God by eating of the fruit of knowledge, God himself who created all things, has all powers, knows everything gave Adam and Eve the opportunity to state their defence. God asked, “Hast thou eaten of the tree whereof I commanded thee that thou shouldest not eat”? Adam replied, “the woman whom thou gavest to be with me gave me of the tree and I did eat”, God asked the woman, what is this that thou hast done? And Eve replied, the serpent beguiled me and I did eat”. Having heard both Adam and Eve and their defences, the Almighty God proceeded to pass judgment.1</p><p>However, natural justice is classified in two components – the hearing rule and the bias rule. It has been developed in the early seventeenth, eighteenth and twentieth century through many historical decisions. In our democratic country today, the principle of natural justice has been enshrined in Nigeria</p><p>1. &nbsp; Genesis 3 vs. 11b – 13</p><p>constitution 1999 (as amended). Similarly same is recognised is Australia, United Kingdom and many other countries. &nbsp;Natural justice is the term that states the specific procedural rule in the English legal system2 and other nation based on it. It is similar to the American concept of fair hearing procedure and procedural due process. The later has the roots to some process, degree parallels the origins of natural justice3. Moreover, natural justice is said to impress the close relationship between common law and moral principle4. The use of the terms today is not to be confusing with the natural law of the canonist, the medieval philosophers, and natural right philosophy of the eighteenth century5. The term natural justice is often retained as a general concept in Australia6 and the United Kingdom7, it has been largely been placed and extended which is the duty to act fairly.</p><p>Natural justice is identified with two Latin maxims which are: Nemo Judex in causa sua (no one should be a judge in his own cause), and Audi Altreram Partem (hear both sides in dispute). The requirement of natural justice</p><p>2. &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; Fredrick F. Shaver (1976), English Natural Justice and American Due Process: An Analytical Comparison William and Law Review, 18(1):47- 72 @ 47.</p><p>3. &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; See generally Bernard Schwartz (1953) administrative procedure and natural law, Notre dame lawyer28 (2): 169, cited in Shauer English natural justice and American due process. p. 51, n. 24</p><p>4. &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; Arthur l. Good hart (1953) English law and the moral law (PDF) London: Stevens P 65. Cited in De smiths judicial Review P. 321.</p><p>5. &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; J.R.S Forbs (2006) natural justice: General, justice in tribunals (2nd Ed.) Sydney: the federation press, pp. 100 – 118 @ 103, ISBN 9781-86287 – 610.</p><p>6. &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; See, for instance kioa v. west (1985) 159 CLR 550@ 583, high court Australia.</p><p>7. &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; De smith judicial review, P.320.</p><p>or a duty to act fairly depends on these contexts 8.</p><p>In <strong>Baker v. Canada minister of citizenship and immigration,9</strong>&nbsp;the supreme court of Canada set out the list of non-exhaustive factors that would influence the content of the duty of fairness including the nature of the decision being made and the process followed in making it, the statutory scheme under which the decision maker operates and the importance of the decision to the person challenging it. The persons legitimate expectation and the choice of procedure maybe the decision maker10. Earlier, in <strong>knight v. Indian head school division,11</strong>&nbsp;the Supreme Court held that public authorities which make decisions of a legislative and general nature do not have a duty to act fairly, while those that carry out the acts of administrative and specific nature do.</p><p>Furthermore, preliminary decisions generally will not trigger the duty to act fairly but decisions of a more financial nature may have such an effect.12 In addition, whether the duty to act fairly applies, depends on the relationship between the public authority and the individual. No duty exists where the relationship is one of both master and servant or where the individual holds</p><p>8. &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; De smith judicial review, p.322.</p><p>9. &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; 1999.2 S.C.R.817. supreme court of (Canada)</p><p>10. &nbsp; &nbsp; &nbsp; &nbsp; Kioa PP. 585; “what is appropriation terms of natural justice depends the circumstance of the case and they will include inter alia, the nature of inquiry, the subject matter and the rules under which a decision maker is acting.</p><p>11. &nbsp; &nbsp; &nbsp; &nbsp; No.9 (1990) 1 S.C.R. 653, S.S (Canada).</p><p>12. &nbsp; &nbsp; &nbsp; &nbsp; Baker pares. 23-28.</p><p>office at the pleasure of the authority. On the other hand, a duty to act fairly exists where the individual cannot be removed from office except for cause.13 Finally a right to a procedural fairness only exist when authorities’ decision is significant and has an important impact on the individual.14</p>THE RULE OF NATURAL JUSTICE <br><p></p>