Expressing the difficulty encountered in classifying tribunals and inquiries, Prof. Adediran Michael was of the opinion that; There have...

The Application of Nemo Judex in Causa Sua Rule in Administrative Adjudication in Nigeria (1)



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.
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 Prof. 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.

To be continued


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