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DEPARTMENT OF LAW AND CONTINUING LEGAL EDUCATION

DIPLOMA IN LAW

KAMPALA CAMPUS

COURSE TITLE: ADMINISTRATIVE LAW

LECTURER (S):

Paul MUKIIBI (Head, Department of Law Reporting, Research and

Law Reform & Professional Advisor, LDC)

COURSE LEADER: Mr. Precious B. NGABIRANO (Head, Department of

Law & Continuing Legal Education & Professional Advisor, LDC)

TOPIC 04: Administrative Procedure and Natural Justice

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TOPIC 04: ADMINISTRATIVE PROCEDURE AND NATURAL JUSTICE

CONTENTS
1.0 What is Administrative Procedure?
2.0 The Right to a Fair Hearing
2.1 Audi Alteram Partem-Listen to the other side
2.1.1 Written representations and oral representations (Defences)
2.1.2 The right to call witnesses
2.1.3 Right to cross-examine witnesses
2.1.4 Right to legal representation (Article. 28(3) (d) Const’n)
2.1.5 Right to reasons
2.1.6 Justification for reasons
2.2 Nemo Judex in Causa Sua
3.0 Conclusion
4.0 Summary
5.0 Assignment or Revision Questions
6.0 References/Further Reading

1.0 What is Administrative Procedure?

Administrative procedures are certain steps that administrative agencies should take to
perform their administrative duties. This includes external steps that an administrative
agency should take, in advance, with the other party or other interested parties, when
issuing a disposition, report, administrative legislation notice, or an administrative
direction. Administrative procedures are necessary to accomplish administrative purposes
smoothly and to protect citizen rights by ensuring administrative fairness, transparency,
and trustworthiness by allowing citizens to participate in the administrative process. The
administrative agencies and concerned parties are the persons subject to administrative
procedures.

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Over the years, the courts have built up detailed rules of what is required of decision
makers procedurally in different circumstances to ensure that a given decision complies
with the requirements of fairness. Thus, different decision and decision makers will need
to comply with different standards of procedural propriety.

These requirements of procedural fairness are what traditionally has been referred to as
the rules of natural justice. Indeed, these rules of natural justice is said to be founded on
both divine and an eternal law- that even God did not pass judgment on Adam until
Adam had had the opportunity of making his defence. Over the years these rule of natural
justice became more generally known as the principles of fair hearing and are classified
into two broad head namely;
1) The principles of Nemo judex in causa sua)
2) The principles of Audi alterem partem.

In the Constitution of the Republic of Uganda, the principle of fair hearing is one of
cardinal tenets of the fundamental human rights as provided for under chapter iv of the
constitution (Article 44 (c) thereof).

Let us now examine the above two principles hereunder.

2.0 THE RIGHT TO A FAIR HEARING

This is one of the most litigated aspects of human rights. It is equally one of the rights
that the individual is quick to notice and object to when breached. This right is innate and
not earned. This means that it is a right that attaches to man just by the very fact that he is
a human being.

The objective of this right is to ensure that all human beings are treated fairly in the
settlement of disputes between one person and another. For there to be peace in the
society people must have a level of confidence that the judicial system will not be
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manifestly partial in handling any dispute brought before it. This will encourage
people not to take laws into their hands knowing that justice would not only be done but
be seen to have been done.

Article 28 (1) of the Constitution provides that in the determination of both civil rights
and obligations, including any question or determination by or against any government
or authority, a person shall be entitled to a fair hearing within a reasonable time
by a court or other tribunal established by law and constituted in such manner as to
secure its independence or impartiality.

In the locus classicus case of the Court of Appeal of Uganda, CAROLINE

TURYATEMBA & 4 Ors vs THE ATTORNEY GENERAL & UGANDA LAND
COMMISSION CONSTITUTIONAL PETITION NO.15 OF 2006, court was of the
view that;
1) The right to be heard is a fundamental basic right. It is one of the cornerstones of
the whole concept of a fair and impartial trial.
2) The principle of “Hear the other side” or in Latin: “Audi Alteram Partem” is
fundamental and far reaching. It encompasses every aspect of fair procedure and
the whole area of the due process of the law.
3) It is as old as creation itself, for even in the Garden of Eden, the Lord first
afforded a hearing to Adam and Eve, as to why they had eaten the forbidden fruit,
before he pronounced them guilty: See R V University of Cambridge [1723] 1
Str. 557 (Fortescue J.)
4) This principle is now of universal application. Article 10 of the Universal
Declaration of Human Rights, 1948, Article 6 (1) of the European Convention
on Human Rights and Fundamental Freedoms, 1950, and section 2 (2) of the
Canadian Bill of Rights, as well as Article 7 (1) (c) of the African Charter on
Human and Peoples’ Rights, all provide for this right.

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In Uganda, the traditional saying, that one ought not to decide a dispute between a boy
and a girl without first having heard the case of each side, goes to show that even our
forefathers in Uganda also embraced and practiced this universal principle of justice (see
CAROLINE TURYATEMBA & 4 Ors vs THE ATTORNEY GENERAL & UGANDA
LAND COMMISSION (supra)). The principle is currently constitutionally provided for
in Uganda by Article 28 (1) of the Constitution. This Article provides that in the
determination of civil rights and obligations, or any criminal charge, one is entitled to a
fair, speedy and public hearing before an adjudicating body established by law. This
right is so fundamental that Article 44 (c) of the Constitution prohibits any derogation
from its enjoyment.

Other jurisdictions have also considered this principle in a number of cases. In Nigeria of
Isiyaku Mohammed v. Kano Native Authority (1968) 1 All N.L.R. 42, one of Nigeria's
most erudite Jurist and Pioneer Chief Justice of the Federation, Adetokunbo
Ademola (C.J.N), had illumined the dark fissures of the principles of fair hearing
and the true test to be applied when confronted with issues involving fair hearing. He
stated that "……a fair hearing involves a fair trial and a fair trial of a case consists of the
whole hearing. …..The true test of fair hearing, …is the impression of a reasonable
person who was present at the trial, whether, from his observation justice has been
done in the case. .."

See also Gaji v. The State (1975) 5 S.C 61 where the Supreme Court of Nigeria speaking
in the same vein held further that the test is that of a fair view of a dispassionate
visitor to the court who watched the entire proceedings and it may as well be
added that the test also includes that of an un- officious by-stander or reasonable
man who upon perusal of the record of proceedings would go with the impression as
to whether justice was done to the parties or not. Thus, in the case of J.C.C Inter Ltd.
v. N.G.I. Ltd (2002) 4 W.R.N 91, 104; it was held that in the determination of the
principles of fair hearing, the primary question is not whether any injustice has been done

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on any party due to want of hearing but whether an opportunity of hearing was afforded
the parties entitled to be heard.

The concept of a fair and impartial trial involves a hearing by an impartial and
disinterested tribunal. This tribunal affords to the parties before it, a hearing before it
condemns, proceeds upon inquiry and results in judgment, only after consideration of
evidence and facts as a whole. Fair hearing involves the right to present evidence, to
cross-examine and to have findings supported by evidence: See: Black’s Law Dictionary
(6th Edition) and also Supreme Court of Uganda Election petition No.04 of 2009:
Bakaluba Peter Mukasa v Nambooze Betty Bakireke, (Judgment of Katureebe, JSC).

Right to fair hearing is the mother of all rights because it is the core of justice.
In simple terms, fair hearing is the act of listening to the person or persons and giving
them equal opportunities to state their positions on an issue before adjudicating. In
other words, both sides in a matter or suit must be given ample opportunity to
state their case, usually in Uganda; by themselves or through counsel.

In Orisakwe & Sons Ltd. & Anor V. Afribank Plc. (2012); The Court of Appeal of
Nigeria; observed that "Basically, the right to fair hearing is a fundamental one, duly
guaranteed by section 36 (1) of the 1999 constitution of the Federal Republic of Nigeria”
(see equivalent provision under our Article 44 (c) of the Constitution). In this vein, any
decision which is given without due compliance therewith is a nullity and is liable to
be set aside, either by the court that delivered the said decision or by an appellate
court. Hence, the question is whether or not the party who is entitled to it and who is
seriously deserving of being heard before his fate is decided, determined or sealed, had
in fact been given ample and adequate opportunity as provided under the relevant
applicable procedural rules of court to do so. In a civil case just as in a criminal case,
the inviolable rule of fair hearing entails inter alia, that any of the parties is entitled to
prosecute or defend the matter either in person or by a legal practitioner of his choice.

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The courts have always sympathized with victims, in established cases of violation
of the right of fair hearing. The maxims, nemo judex in causa sua, and audi alteram
partem, (no one can be a judge in his own cause, and Listen to the other side)
have remained persuasive arguments for plaintiff applicants in fair hearing
proceedings.

2.1 AUDI ALTERAM PARTEM -LISTEN TO THE OTHER SIDE

This latin maxim means that the other side must be heard before judgment is passed. The
principle of fair hearing becomes invocable where a party is untowardly shut out and
openly denied the opportunity to be heard. It is not applicable in favour of a party who
fails to appear and defend an action filed against him. Thus, a party or his counsel who
fails to appear in court on a date fixed for hearing which he is aware of and without
justifiably excusing his absence, does so at his own peril and would have nobody to
blame but himself. In a recent decision of the Supreme Court, Newswatch
Communications Ltd. V. Atta (2006) 12 NWLR (Pt. 993) 144/171 Per Tobi.

The courts thus have drawn a distinction between the refusal to utilize a given
opportunity and situations where such opportunities are not given at all as in the case of
FRAMAN ENTERPRISES LTD & ANOR V. SPRING BANK PLC & ORS [2016-
COURT OF APPEAL] The Fundamental nature of the service of hearing notice
on parties in the adjudication process and effect of failure to serve hearing notice
where required] "It is trite and has been held in seemingly endless judicial
authorities that any proceeding in a case which holds without the parties having been
duly served with a hearing notice of the date for hearing of the matter does violence to
the principles of fair hearing as enshrined in the constitution”.

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Thus, Article 28(1) of the Constitution forbids a court to make order that affects the
interest of a person, without hearing him or giving him opportunity to be heard. The right
of fair hearing forms the "soul" of any judicial decision/order of Court, and where
one has not been heard or given opportunity to be heard, the decision is a
complete nullity and cannot be enforced against the party, having not been heard. It is to
be noted however that it is the Duty of a judge to be seen as impartial such that where
there is evidence of corruption on his part the judgment may be set aside. Invariably, a
decision is said to be perverse where it's so obvious on the record that.
1) It runs brazenly contrary to the evidence adduced at the trial; or
2) It is duly established that the trial Court took into consideration some matters
which it ought not to have done so or turns a blind (shuts it's) eyes to
obvious facts; or
3) It has occasioned a miscarriage of justice.

This principle includes the following tenets;

2.1.1 Written representations and oral representations (Defences)
Whenever a hearing is required, it suffices if the same is made in writing. This was
justified in the case of R v Huntingdon District Council exparte Cowan [1984]1WLR
501. This also noted in Kaggwa Andrew & Ors vs. Minister of Internal Affairs HCMA
No. 105 /2002.

2.1.2 The right to call witnesses

Fairness may require that a decision maker allow the person likely to be affected by a
decision to call witnesses in support of his case. Any discretion to curtail this right must
be exercised reasonably and in good faith. In this regard, a court will not hesitate to strike
down a decision not to allow witnesses to be called if the decision is unreasonable,
irrational or unfair.

2.1.3 Right to cross-examine witnesses

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As a general rule, the right to a hearing is hollow unless parties are accorded a right to
cross-examine witnesses called to testify in the cause. The purpose of cross-examination
is to discredit the witnesses’ testimony and cause its probative value shaken.

2.1.4 Right to legal representation (Article. 28(3) (d) Const’n)

Unfairness will certainly exist where the tribunal allows one side to engage the services
of a lawyer and at the same time deny another side such a similar right. In R v home
Secretary exparte Tarrant [1981] 2 WLR 163, the court quashed a disciplinary decision
of a Prison Board of visitors for unfairness caused for failure caused to allow legal
representation.

2.1.5 Right to reasons

At Common law, there is no duty to give reasons to a person affected by a decision unless
the statute under which the decision was passed expressly provided so. This view
however is losing support given the wisdom by Lord Woolf, where he stated thus;
“In regard the giving of satisfactory reasons for a decision as being the hallmark of good
administration and if I were asked to make the best improvement to English
administrative law, I would unhesitatingly reply that it would be the introduction of a
general requirement that reasons should normally be available at least on request for all
administrative decisions”.

2.1.6 Justification for reasons

a) It satisfies the affected individual’s expectation of a just and fair treatment by the
decision maker.
b) It enables the affected person to decide whether he can appeal against such
decision or accept it.

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c) It improves the quality of decision made wherever a decision maker realizes that
his decision is open to further scrutiny.
d) It legitimizes the decision-making process no matter whether the decision given
was right or not.
e) It protects administration from uncalled for appeals.
f) In an appeal process, the appellate court will require reasons of a lower
court/tribunal so that their correctness is treated.

2.2 NEMO JUDEX IN CAUSA SUA

Nemo judex in causa sua means that no person can be a judge in his own matter. It is a
rule against bias, a rule that disqualifies a person occupying an adjudicatory office
from seating in judgment over a matter in respect of which he has an interest.

So, the maxim nemo judex in causa sua i.e., no one can be a judge in his own case was
advocated.

3.0 Conclusion
This topic has discussed the meaning of fair hearing as an aspect of the fundamental right
of a person. It has also discussed the fundamental tenets of the natural justice. The Nemo
judex rule, commonly referred to as the rule against bias, ensures that a judge is not
partial. He should not be influenced by personal interest; for jurists and laymen alike
have insisted that justice should be manifestly seen to have been done. Where the judge
has interest in the subject matter, or in the party, or his own financial interest is involved,
the objectivity of his decision is bound to be questionable. The right to fair hearing
cannot be ousted by law because the Ugandan Constitution is superior to any law. There
is no contradiction that the Uganda’s Constitution is supreme. Fair hearing is the
cornerstone of any judgment process and is hinged on two major ingredients to wit; audi
alteram partem and nemo judex in causa sua.

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4.0 Summary
The topic has examined what Administrative procedure as it relates to the rules of natural
justice. Cases involving Fair hearing are synonymous with natural justice. Considering
the important nature of natural justice, it is reiterated that every act of administrative
procedure must respect it. The root of the doctrine is an age long one found in
the roman era. The topic thus dealt with fair hearing and equity. It is firmly established
that a judge or anyone exercising a judicial function must hear both sides; not only the
plaintiff or the prosecutor but the defendant as well. This rule is well recognized as one of
the fundamental principles of natural justice.

5.0 ASSIGNMENT OR REVISION QUESTIONS

1) Explain what you understand by Administrative procedure and the rules of natural
justice.
2) Explain what fair hearing is and the attributes of the courts in preserving the right
of fair hearing.
3) With the help of decided cases discuss how courts have applied the principle of
audi alterm paterem in adjudication of cases before them.
4) Explain the maxim Nemo judex in causa sua and how the courts employ it to
ensure that the right to a fair hearing is preserved in appropriate cases.

6.0 References/Further Reading

 Alston, P., Goodman, R., & Steiner, H. J. (2013).
 International human rights: Text and materials. Oxford, United Kingdom: Oxford
University Press. P. 278
 Connolly Carmalt, J. (2007). Rights and place: Using geography in human rights
work. Human Rights Quarterly, 29(1), 68(18). pp. 78-85
 Evans, T. (2005). International human rights law as power/knowledge. Human
Rights Quarterly, 27(3), 1046-1068.
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 E.C.S. Wade & A.W. Bradley, Constitutional Law 64 (London: Longman, 8th
Edition, 1970).
 P.A Oluyede: Nigerian Administrative law (2007)

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