Natural Justice

• Pages: 397-449

Administrative or quasi judicial body Paras. 1001-1003

NATURAL JUSTICE

(1) ADMINISTRATIVE OR QUASI JUDICIAL BODY

1001. Duty on person or body exercising disciplinary powers to observe

rules of natural justice.

“I must say that when taking disciplinary action against a candidate accused of ex-

amination malpractice, the appellant who is acting in a quasi-judicial capacity is bound

to observe the rules of natural justice expressed in Latin maxims: “audi alteram

partem” and “nemo judex debet esse in causa sua”. These rules have been en-

shrined in Section 36(1) of the 1999 Constitution and Article 7 of the African Charter.

See Baba v. N.C.A.T.C. (1991) 5 N.W.L.R. (Pt. 192) 388; Oyeyemi v. Comm. For

Local Govt. (1992) 2 N.W.L.R. (Pt. 226) 661 at 678; WAEC v. Mbamalu (1992) 3

N.W.L.R. (Pt. 230) at 481.” - Per Galadima, J.C.A. in W.A.E.C. v. Akinkunmi Suit

No. CA/L/259/2000; (2002) 7 N.W.L.R. (Pt. 766) 327 at 341.

(2) ALLEGATION OF MISCONDUCT

1002. Steps to be taken where an employee is accused of misconduct.

“An employee against whom disciplinary proceedings have been instituted or are

being proposed must be made to know the case against him, what evidence has been

given or what statement has been made affecting him, and be given a fair opportunity

to correct or contradict them. See: Aiyetan v. Nigeria Institute for Oil Palm Re-

search (1987) 3 N.W.L.R. (Pt. 59) 48. In short, an employer before dismissing his

employee or terminating his appointment, on the ground of his having committed

misconduct, must give the employee a fair hearing. See: Adedeji v. Police Service

Commission (1968) N.M.L.R. 102.” - Per Adio, J.C.A. in Eravwodoke v.

U.B.T.H.M.B. Suit No. CA/B/176/89; (1993) 2 N.W.L.R. (Pt. 277) 590 at 598-599.

(3) AN UMPIRE

1003. Umpire’s duty to be impartial.

“On the issue of bias, this was not raised by the petitioner at the lower tribunal where

he should have protested the participation of the Chairman of the appeal Tribunal, on

the ground of his complaint at this stage of the proceedings. Be that as it may I am of

the view that the chairman of the appeal Tribunal should have refrained from taking

part in the appeal in view of his past involvement with the N.C.P.N. party, the party

of the 1st respondent, in the interest of justice and to obviate the likelihood of raising

this impropriety. This is a typical situation where recourse will be had to the legal

adage, justice must not only be done, but must be seen to have been done. As much

as possible any imputation to the impartiality of an umpire must be avoided.” – Per

Onalaja, J.C.A., in Oni v. Odeyinka Suit No. ; Suit No. CCN/1/51/98; (1998) 8

N.W.L.R. (Pt. 562) 425 at 431. 397

Paras. 1004-1006 Vol. 16 : NATURAL JUSTICE 398

(4) APPLICATION OF NATURAL JUSTICE

1004. Application of principles of natural justice to the removal and disci-

pline of academic, administrative and technical staff under Section 12 of the

Federal Polytechnic Act 1979.

“The observance of the rules of natural justice invariably applies to all the situations

in Section 12 since they involve the determination of the civil rights and obligations of

the persons affected: See Section 33(1) Constitution 1979.” - Per Karibi-Whyte,

J.S.C. in Adeniyi. v. Gov. Council, Yabatech Suit No. S.C. 197/1990; (1993) 6

N.W.L.R. (Pt. 300) 426 at 457.

(5) ATTRIBUTES OF NATURAL JUSTICE

1005. Accuser being Judge in his own cause.

“The position here was that 1st appellant relied on the representation made to the 2nd

appellant, to who he could not have delegated his authority and who had no authority

to dismiss the respondent. Now, it should be stated that 2nd appellant is both the

accuser and the investigator of the allegations against the respondent. It is on his

report that 1st appellant acted. In truth the entire disciplinary action was initiated,

investigated and determined by the 2nd appellant who appeared to have been a Judge

in his own cause. Such a situation is intolerable in our concept of justice and clearly a

breach of the rules of natural justice) See L.P.D.C. v. Fawehinmi (1985) 2 N.W.L.R.

(Pt. 7) 300; Aiyetan v. NIFOR (1987) 3 N.W.L.R. (Pt. 59) 48 S.C., Olaniyan &

ors. University of Lagos (1985) 2 N.W.L.R. (Pt. 9) 599, Eperokun v. University

of Lagos (1986) 4 N.W.L.R. (Pt. 34) 162.” - Per Karibi-Whyte, J.S.C. in F.C.S.C.

v. Laoye Suit No. S.C. 202/1987; (1989) 2 N.W.L.R. (Pt.106) 652 at 698., (1989) 20

N.S.C.C. (Pt. II) 101 at 126.

(6) AUDI ALTERAM PARTEM PRINCIPLE

1006. Audi alteram partem rule.

(1) “One of the pillars of natural justice is the principle of audi alteram partem:

whereby a Court or a judicial tribunal is enjoined to hear the other party to a dispute.

This is today enshrined in Section 33 of the Constitution of the Federal Republic of

Nigeria 1979. It is good logic and good sense. It provides that any person whose

rights and obligations may be affected by a decision of a Court or tribunal must be

given an opportunity to present his own side of the case before a decision affecting

him is made. It ensures that all parties who are to be affected in any way by a

decision of a Court or tribunal must be accorded ample opportunity of being heard.”

- Per Katsina-Alu, J.S.C. in Alfa v. Atanda Suit No. CA/J/174/90; (1993) 5 N.W.L.R.

(Pt. 296) 729 at 739.

399 Audi alteram partem principle Para. 1006

(2) “The first issue to tackle is the one of fair hearing. It was brought out under cross-

examination of the plaintiff that he was given a query on the uncleared or delayed

cheque of N141,287.50 and the plaintiff replied that he knew nothing about it, and

that the query should be directed to the accountant. At that point, in time, the onus of

proof of wrong doing shifted to the accountant with the plaintiff as the accuser. The

management, in order to give the plaintiff a fair hearing should have brought both the

plaintiff as manager and the accountant face to face to state their evidence in chief

and each side should have been allowed to cross-examine the other. Were that done,

the management would have decided whose fault the lapse was.

The Supreme Court in Adedeji v. Police Service Commission (1967) 1 All N.L.R.

67 at 71-72, had established the proposition, adopting the view in de Smith Review of

Administrative Action p. 110 that: “A person who is entitled to the protection af-

forded by the audi alteram partem rule must not only be given adequate opportunity

to know the case he has to meet; he must also be given an adequate opportunity to

answer it. But he is not entitled to an oral hearing unless such a hearing is expressly

prescribed”.

So, in the case in hand, the plaintiffs’s letter on the query should have been passed to

the accountant for his comments, and the accountant’s explanation passed on to the

plaintiff. And it was up to the management to decide the case on documents or to

proceed with a committee to hear both the manager and the accountant, giving each

person an opportunity to cross-examine the other before taking their decision. Sec-

tion 33 of the 1979 Constitution on fair hearing was therefore violated.” - Per Ogundare,

J.C.A. in Union Bank Ltd. v. Ogboh Suit No. CA/K/180/89; (1991) 1 N.W.L.R.

(Pt. 167) 369 at 386.

(3) “A plea of unlawful dismissal raises the issue of a dispute, in the resolution of

which the rules of natural justice as enshrined in Section 33 of the Constitution comes

into play whether so pleaded or not. That Constitutional provision, indeed any right

guaranteed by it, cannot be derogated from by any party or the Court itself. Besides,

although Exhibit 3, the Collective Agreement provided for summary dismissal meted

out to the plaintiff in this case but it has to be founded on a proven case of any of the

offences in paragraph 5(1) thereof. Plaintiff’s dismissal was accordingly unlawful;

although an allegation was made against him, nothing was proved against him”. - Per

Ogundare, J.C.A. in Union Bank Ltd. v. Ogboh Suit No. CA/K/180/89; (1991) 1

N.W.L.R. (Pt. 167) 369 at 386-387.

(4) “I agree also that the appellants have violated the provisions of S. 33 of the 1979

Constitution, on fair hearing, in handling the case of the respondent. The appellant’s

allegation that the respondent had been involved in a gross-misconduct in connection

with his involvement in the suppression of cheques, totaling N433,327.41 on the ac-

count of a customer, had not been properly investigated. It is clear under the Collec-

tive Agreement which is the regulation binding the contract of employment of the

respondent with the appellant that summary dismissal of a staff could only take place