The Application of Nemo Judex in Causa Sua Rule in Administrative Adjudication in Nigeria

Expressing the difficulty encountered in classifying tribunals and inquiries, Prof. Adediran Michael was of the opinion that there have been no effort at evolving a clear cut picture which will make them identifiable, either due to their names or functions. He however further pointed out that there is little attempt at present to identify the nature of the particular body as to whether it is intended to be strictly a tribunal, performing judicial functions like the courts or as a fact-finding one, set up to make recommendations to a higher body.

Characterisation

Characterization can only be made through evaluation of these bodies with any parallel body involved in judicial functions- to wit, the court. It ought to be court and tribunals look the same, but courts and inquiries do not, though all can be said to be performing judicial functions

Courts and Tribunals Creation

Currently, the Constitution provides the framework for the formation of courts in Nigeria. To this end, S. 6 of the Constitution of the Federal Republic of Nigeria 1999 provides;
6. (1) The judicial powers of the Federation shall be vested in the courts to which this section relates, being courts established for the Federation.
(2) The judicial powers of a State shall be vested in the courts to which this section relates, being courts established, subject as provided by this Constitution, for a State.
S. 6(5) specifies these courts to be;
(a) the Supreme Court of Nigeria;
(b) the Court of Appeal;
(c) the Federal High Court;
(d) the High Court of the Federal Capital Territory, Abuja;
(e) a High Court of a State
(f) the Sharia Court of Appeal of the Federal Capital Territory, Abuja;
(g) a Sharia Court of Appeal of a State;
(h) the Customary Court of Appeal of the Federal Capital Territory, Abuja;
(i) a Customary Court of Appeal of a State;
(j) such other courts as may be authorised by law to exercise jurisdiction on matters with respect to which the National Assembly may make laws; and
(k) such other court as may be authorised by law to exercise jurisdiction at first instance or on appeal on matters with respect to which a House of Assembly may make laws.
 

Tribunals, as are obtainable today, are fashioned by statutes. They are nonetheless accepted by the Constitution to put into effect some judicial duties. The principle of fair hearing encapsulated under S. 36 of the 1999 Constitution affords a person the prospect to be heard before a lawful tribunal.

Permanence

On a regular ground, courts are more lasting than regular tribunals. This is oftentimes as a result of the fact that tribunals are constituted to attend to extra-special matters and to serve the more arguable needs of speed and efficiency in resolution of most disputes. Moreover, given the unwieldy procedure by which Constitutions take to be amended, the courts take a more permanent nature. S 6(4) of the 1999 Constitution empowers the House of Assembly to abolish any state court where found necessary. Nonetheless, tribunals being created by statutes only need the abolition of such statutes to displace and dismantle them. Some tribunals of some professional associations are of more permanent nature than others. For example, the disciplinary tribunals of medical and dental practitioners are quite enduring than election or military tribunals often abolished upon a revocation of the creating statutes.

In Mineral Development v. State of Bihar (AIR 1960 SC 468), the apex court observed that the concept of fair hearing is elastic and not susceptible of a precise and easy definition. The hearing procedures vary from the tribunal, authority to authority and situation to situation. It is not necessary that the procedures of hearing must be like that of the proceedings followed by the regular courts.

Read: Arbitration as an Alternative Dispute Resolution Mechanism

Right to know the Evidence against him

Every person before an administrative authority, exercising adjudicatory powers has right to know the evidence to be used against him. The court in case of Dhakeshwari Cotton Mills Ltd. v. CIT(supra), held that the assessee was not given a fair hearing as the Appellate Income Tax tribunal did not disclose the information supplied to it by the department. A person may be allowed to inspect the file and take notes.

Determination of Controversy

The jurisdiction of the court cannot be invoked unless there is a lis inter partes, observes Professor Adediran. Specifically, the Constitution provides in S.6 (6) thus;

(6) The judicial powers vested in accordance with the foregoing provisions of this section -
(a) shall extend, notwithstanding anything to the contrary in this constitution, to all inherent powers and sanctions of a court of law
(b) shall extend, to all matters between persons, or between government or authority and to any persons in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person;

 

For tribunals, the jurisdiction is also invoked; there must be a dispute either civil or criminal that the tribunal can answer to. For instance, before the Legal Practitioners Disciplinary Committee can exercise power, there must have been allegations of professional misconduct against a member which the tribunal is called upon to adjudicate.

Composition

Legally trained personnel preside in courts. But this is not so for tribunals. The Constitution recognizes the age-long tradition of allowing judges to head over courts. According to public law commentator of over four decades, Prof. Adediran, lower courts are however governed by laymen. This is so sometimes especially where professionals refuse to take up such offices. Knowledge of the customs and traditions of the people is also a factor for consideration. Professor Ademola Popoola however has a criticism relating to this. In one of his pregnant lectures he identified that when some judges who rule over customary courts decide to study further and become legal practitioners; later on they are now regarded as not having knowledge of customs and traditions which they have hitherto expertly adjudicated upon. The backing rationale is solidly backed by the fact that only unlearned men could be versed in relevant customs of the people and not those that are learned. The international law erudite, Professor Popoola now questioned that “Was it the legal education the customary judges apprised themselves of that stripped them of their knowledge of customary law?” We are left in wonder! This incidence actually calls for some reforms in the misallocation of judicial powers to prospective judicial at that customary level. The elaborate treatment of this important issue is actually not for now.

The continued culture of administrative review of the decisions of laymen minimizes the incidences of injustice. Apart from the LPDC, tribunals are presided over by laymen who have expert knowledge and experience of the matters at hand. Legally trained persons may only be allowed as members since legal representation opportunity is afforded the disputing parties. Albeit in some critical matters, the administration is expected to empanel only legally trained persons. Down the memory lane, it is recalled that the military regime of Muhammodu Buhari deviated from the high standard by positioning laymen to undertake the trial of public officers under the Recovery of Public Property (Special Military Tribunals) Decree No 3, 1984. This inconsistency was however readjusted by the Babangida tenure by making only High Court judges preside over those tribunals by promulgating the Recovery of Public Property (SMT) (amendment) Decree No 21, 1986.

Imposition of Obligations

Courts generally do impose obligations but tribunals may not. The earlier cited S.6 (6)(a)(b) of the 1999 Constitution empowers the courts to determine and make pronouncements on any dispute between persons and authority. S 46(2) appears to be more explicit about this;

(2) Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of this section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcement or securing the enforcing within that State of any right to which the person who makes the application may be entitled under this Chapter.

By virtue of SS. 6(6)(b) and 46(2) of the Constitution the courts possess overwhelming powers to give binding orders. This position has been judicially flavoured in Mil. Gov Lagos & ors v. Ojukwu.  On the other hand, tribunals, such like Industrial Arbitration Panel, National Industrial Panel, Rent Tribunals, and professional tribunals do impose obligations but those under the Chiefs Law, Trade Disputes Act merely make recommendations which may or may not be accepted by the appropriate authority.

Finality of Decisions

Court decisions are final and conclusive. They do remain in force and they are not subject to any executive or legislative ratification. They could solely be upturned by a court of appellate jurisdiction. But Professor Adediran has well noted that for tribunals this is often not so because such orders can be rendered nugatory by simply setting up persons to look into the legal and judicial correctness of the decisions.

Rules of Evidence

Rules of evidence are the vehicles upon which most court proceedings are conducted. Tribunals do not operate with rules of evidence but are mandated on the strength of the ethos of natural justice and equity to act in a fair manner to all parties concerned. Prof M Adediran clarifies that seeing most tribunals are presided over by legally trained persons and handled by legal practitioners, the procedure is not any different from what applies to what goes on in the court. Notwithstanding, this poition can be subject to logical criticism on the basis of the fact that some tribunals have their matters conducted by non-legal practitioners i.e. laymen, hence the strict rules of evidence could not be held relevant for such adjudicatory platform.

Superiority of Courts

Courts are regarded as superior courts of record while tribunals are referred to as the inferior. S. 6(3) of the 1999 Constitution provides strongly thus;

3. The courts to which this section relates, established by this Constitution for the Federation and for the States, specified in subsection (5) (a) to (i) of this section, shall be the only superior courts of record in Nigeria; and save as otherwise prescribed by the National Assembly or by the House of Assembly of a State, each court shall have all the powers of a superior court of record.

Apart from the judicial tribunals, where appeal lie to the Special Appeal Tribunal, the Armed Forces Ruling Council, all other tribunals, whatever name called, are regarded as inferior and where a party is not content with their decisions, he may appeal to a High Court with original jurisdiction.

Designated Venue of Sitting

Courts sit normally at designated venues given by instruments or directions of the Chief Judge as designated as such. Tribunals employ diverse locations on the basis of convenience and their decisions would not be vitiated for failure to sit in a particular locale. Other characteristics of tribunals could only be more comprehended when compared with inquiries as has been with courts. Courts and inquiries, notably, are dissimilar.

Hierarchy of Jurisdiction

All courts of law are either of a coordinate or lower jurisdiction. Many times, it is not so with tribunals as they exercise separate as different from coordinate jurisdictions. For instance, in commonwealth nations we have the High Courts having and performing coordinate jurisdictions. The Courts of appellate jurisdictions are as well there to brood upon whatever decisions reached by these lower courts. This is not always the situation with tribunals as they are either seen with professional associations like the LPDC, statutorily-formed like the Rent Tribunals and administrative as in the power of Governors, ministries, departments and agencies (MDAs) having power to make judicial or quasi-judicial decisions in resolving issues. Notably however, many tribunals are yet subject to administrative judicial control. This has been given judicial blessing in some cases. According to Awogu J.C.A. in National Electoral Commission (N.E.C) v Nzeribe:

“A tribunal, no matter how highly clothed with power is still a tribunal and so an inferior Court and subject to the supervisory jurisdiction of a superior Court of record, such as the High Court of Lagos.”

Genesis of Dispute Resolution Exercises and Operations

According to Prof. Wade, “Tribunals are of a 20th Century phenomenon…” The learned pundit explained that the duty of fact-finding and dispute resolution has originally belonged to the courts from time immemorial. Many legal systems the world over just came to reckon with the usage of tribunals even constitutionally. Post-independent Nigeria has likewise been of the same stance.

References

• The Constitution of the Federal Republic of Nigeria, 1999 as amended
• Professor M.O. Adediran, Classification and Characterization of Tribunals and Inquiries in Nigeria, OAU, Ile-Ife
• Ajay R. Singh, Advocate, Legal Maxim: Audi Alteram Partem and Nemo Judex in Re Sua: Doctrine Of Natural Justice
• L.O. Alimi, Administrative Justice within The Framework Of The 1999 Constitution, the Nigerian Law School, Victoria Island, Lagos.