An Appraisal of the Exceptions to Natural Justice : Nemo Judex in Causa Sua Balogun Sofiyulahi .O.

Balogun Sofiyullahi

It is an equitable principle of the general juristic sense that courts of law, tribunals and other administrative bodies saddled with the core mandate of deciding the faiths of other persons, act fairly, responsibly and impartially with God consciousness.

However, the widely accepted twin principles of natural justice are: “no man must be a judge in his own cause” (expressed as audi alterem pattem) and “hear both sides before judging” (expressed as nemo judex in causa sua), both rules predate the ‘due process rule’ in trial or adjudication as we have, in the orderly society today.

This could conveniently however, be traced back to the history of the first man on earth and his wife, Adam and Eve. Having contravened the prohibition law set down by God, inhibiting them from eating the forbidden fruit in the paradise, despite the prior awareness of God about their act, He still gave Adam the privilege to state his own side of the case before expelling them from the paradise. Hence, the origin of the “fair hearing rule” we all proclaim today. See Genesis Chapter 3 Verses 11-13.

However, the no man must be a judge in his own cause rule (hereinafter referred to as nemo judex rule) equally existed at the time, but the reason why it was not utilized by God in the Adam’s case is one of the very basis of the exceptions to the rule which this paper would later examine.

For it is of course obvious in the broadest sense, that these principles have become axiomatic in modern Constitutions to the extent that judicial or administrative acts which run contrary to, either or both of them have readily and forcefully been declared invalid and void by Courts of Justice.

Consequently, this write up would examine all the valid exceptions to the nemo judex rule, analyzing various juristic exertions which are seductively amazing and gripping with magnetism on the subject.


It is a cardinal principle of wide constitutional acceptability which is indisputably affirmed by the courts, that all judicial, quasi-judicial and administrative actions must observe the natural justice principles in their dispositions, of which conformity therewith should be manifestly seen.

Therefore, for purposes of clarity, the twin principles that make up natural justice rule will be succinctly elucidated anon.


Simply speaking, this rule means that “let both sides be heard” or in other words, no decision must be given against anyone which may accept his civil rights, responsibility and obligation, except such a person to be affected by such decision is given opportunity to state his own side of the case. This is logically unassailable.


This principle means that no man who has an interest in a matter whether direct or indirect should sit to adjudicate on such a case, because of his likelihood of being bias.

F.T Giles in his book, The Magistrates’ Courts; Penguin Books Ltd(1949) opined that:

 “Clearly, no judge in whatever court he may act ought to take part in a trial where his impartiality may be fairly questioned.”


In Nigeria, the constitutional provisions governing natural justice are sections 36 and 17(2)(e) of the 1999 Constitution. They provide:

Section 17 (2):

“In furtherance of social order –

 (e) The independence, impartiality and integrity of courts of law, and easy accessibility thereto shall be secured and maintained.” (Underlining mine)

Section 36(1):

“In the determination of his 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 and impartiality.” (Underlining mine)

Although, it should be noted, that this principle is not patently stated in the above provisions, but it is intended to be so inherent therein by the usage of the words ‘independence and impartiality’ of the court or tribunal. See Sylva v. INEC & ors (2015) LPELR-24447 (SC); Per Ngwuta JSC.


Learned writers have classified with approval, but with variations in their methods of analysis, the exceptions to the nemo judex rule.

According to a learned writer in India, Mr. Singh, in his book titled: “The Supreme Court of India as an Instrument of Social Justice”, he classified the exceptions to be:

  1. Necessity;
  2. Contempt;
  3. Waiver; and
  4. Purely Administrative Duty. See B. Singh, The Supreme Court of India as an Instrument of Social Justice; Sterling Publishers PVT Ltd(1976)
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Another writer by name Mr. Craig, in his book on Administrative Law, narrowed the exceptions to the first three listed above, while exempting the last one. See P.P. Craig, Administrative Law, Sweet & Maxwell (1983)

It is however, to the categorizations of the first three (i.e 1-3) above that this writer shall adopt and examine in turn. The last exception stated by Mr. Singh that is, purely administrative duty would be discarded as being of doubtful validity to this writer because, all authorities including administrative panels are by law, required to conform with the natural justice rule. See the case of Iyeghe v. Ahmadu Bello University, Zaria (2016) All FWLR (pt.851) @ 1377 (CA)


The doctrine of necessity operates within various situational context, howbeit in times of exigencies, which can however, be colligated in the terse statement of Law that states thus: “what is not lawful becomes otherwise lawful by necessity.” See Refrence by the Governor-General (of Pakistan),PLD (1955) F.C 435

Conversely stated, the doctrine of necessity can operate to:

  1. Validate actions or acts which are ipso facto unlawful, to be lawful;
  2. In order to streamline and complement the Law, when no other thing can do in the circumstance;
  3. Serve as an implied mandate of a lawful sovereign to a rebel government;
  4. Waive compliance with due process in times of emergency or exigency; and
  5. Place the welfare of citizens over and above the Law of the land, in the face of looming ruination of the societal fabric.

It is submitted that it is in times of situation ‘b.’ above that the doctrine of necessity operates to serve as an exception to the nemo judex in causa sua rule.

However, it will be recalled that in the cause of our introduction, it was pointed out that the nemo judex rule was not observed by God in dealing with Adam, despite Him being: the complainant, the witness, the prosecutor and the judge. All of which are antithesis to the nemo judex rule. The reason was based on necessity because God was the only Supreme Being capable of adjudicating at the time and no other person could have done except Him. Do you see necessity in action, even before the orderly society we live in today?

Craig’s postulation is aptly stated that:

“The normal rule against bias will be displaced in circumstances where the individual whose impartiality is called in question is the only person empowered to act.”

An offshoot of the doctrine of necessity as an exception to the nemo judex rule is: Statutory Authority that shall be discussed now.


‘The Acts of Parliament’, said Mr. Singh, ‘however, can override the principles of natural justice’. It is submitted that this view is valid in law and of considerable acceptance. In other words, where the legislatures enact a law, making it mandatory therein that a person must sit over a matter, irrespective of his partiality, then the nemo judex rule shall take a second place because it has been displaced by statutory authority and as such, necessity takes precedence.

The Supreme Court of Nigeria utilized the necessity doctrine to displace nemo judex rule in the case of: Ex Parte Olakunrin (1985) NWLR (PT. 4) 652; (1985) LPELR-SC 98; (1985) 5 S.C 161 because by statutory authorities, the person empowered by law to exercise disciplinary control over the appellants (was alleged to be biased) was mandated to sit and adjudicate.

Justice Nnamani JSC (as he then was) held:

“Besides, it is also settled that a person who is prima facie disqualified for interest or bias may be held on grounds of necessity, competent and obliged to adjudicate if no other duly qualified tribunal can be constituted.”

Similarly, Justice Bello JSC hit the nail on the head in a more forcible and captivating matter, in the following words thus:

“…the rule of natural justice must give way to the rule of necessity…The rule of necessity permits an adjudicator to be a judge in his cause if his participation is absolutely necessary to arrive at a decision.”

The Supreme Court of U.S in the recent celebrated case of United States v. Will 499 U.S 200 (1980) affirmed the necessity doctrine to the effect that ‘it prevails over the disqualification standard’. See also the Supreme Court of India cases of : Ashok Kumar Yadav v. State of Haryana(1985) 4 SCC 417; Tata Cellular v. UOI (1994) 6 SCC 651 and the Court of Appeal of Tennessee case of : Gay v. City of Somerville 878 S.W.2d 124 (1994), the latter case adopting United States v. Will(supra).

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It is pertinent to note and must be stressed, that this necessity rule does not operate to truncate or obliterate the nemo judex rule at will because it only operates parallel and impliedly to the law in exceptional circumstance(s), when no other thing can do. It is submitted that in the application of this exception to the nemo judex rule, the “audi alterem patem rule” must be observed because that is the essence of the provision of subsection 2 of section 36 of the 1999 Constitution. See Ex Parte’s case.

However, despite the widespread acceptance of the rule of necessity in state administrative law, there is general recognition of its unfairness, and the inherent tension between it and the right to an impartial decision maker. Application of the rule of necessity has been called a “regretful circumstance” and a “choice between two evils”. See Arnorld Rochvarg, Is the Rule of Neccesity Necessary in State Administrative Law: The Central Panel Solution, 19 J.Nat’l Ass’n Admin.L Judges (1999) available at 19/iss2/3


‘Contempt of Court’, said Mr. Jackson, ‘has a long history with periods when it little public interest…The subject is complicated because several different conceptions are brought under the same heading of contempt of court’. See R.M Jackson, The Machinery of Justice in England, Cambridge University Press (1940) page 317

However, contempt of court is the act of putting into disrepute, disdain or denigrating the integrity of the court either directly or constructively which may be civil or criminal.

Justice Agbaje JSC (as he then was) in 1990 Judicial Lectures: Continuing Education for the Judiciary, MIJ Publishers, titled “Contempt of Court and Discourtesy” polarized the concept into two and posits thus :

“Contempt are of two kinds, direct or constructive. When the contempt are direct i.e committed in the immediate view And presence of the court or so near the presence of the court as to obstruct or interrupt the due and orderly course of proceedings they are said to be contempt committed in curiae facie i.e contempt in the face of the court. On the other hand, those contempt which arise from matters not occurring in or near the presence of the court, said to be constructive or indirect contempt, are referred to as contempt committed ex facie curiae.”

It is submitted that the notorious classifications of contempt as civil and criminal can be competently brought under the two heads of direct and indirect or constructive contempt of court respectively.

Broadly speaking, not all these types of contempt operate as an exception to the nemo judex rule except: direct or in facie curiae contempt, committed in the presence of the court. This constitutes an exception for various purposes and reasons, for instance, an accused person scandalizing the court can be swiftly punished for denigrating the integrity of the temple of justice. This is based on the policy of law that: ‘the honesty and integrity of a judge cannot be questioned but his decision may be impugned for error of law or fact’ but this is not to conclude that a judge cannot be justifiably be required to disqualify himself on valid and reasonable ground(s).

Besides, this paper must at once point out the various provisions that empower the court to deal with, or punish for civil and criminal contemptuous acts in Nigeria, although not concentrated in a single statute or provision. These are: 1999 Constitution of Nigeria; Criminal Code Act CAP. C38 LFN 2004 and Sheriffs and Civil Process Act.

The provisions are: sections 17(2)(e), 6(6)(a) and 39(3)(a) of the 1999 Constitution; sections 6 and 133 of the Criminal Code; sections 66 and 72 of Sheriffs and Civil Process Act. For clarity sake, section 6 provides:

“Nothing in this Act or in the code shall affect the authority of courts of record to punish a person summarily for the offence commonly known as contempt of court; but so that a person cannot be so punished and also punished under the provisions of the code for the same act or omission.”

Section 39(3)(a) provides :

(3) Nothing in this section shall invalidate any law that is reasonably justifiable in a democratic society –

(a) for the purpose of preventing the disclosure, of information received in confidence, maintaining the authority and independence of courts….” (Underlining mine)

An accused person who commits contempt in the face of the court can be punished by committal to prison instantly by the judge manning the court without the process of formal trial because the punishment is meant to preserve and  protect the integrity and utmost authority of the court, but not the judge in person. See Lord Widgery CJ in A.G. v. Times Newspaper Ltd (1972) 3 All E.R. This instant punishment clearly violates the nemo judex rule because the judge is ‘the complainant’, ‘the witness’, ‘the prosecutor’ and at the same time, ‘the judge’.

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The Supreme Court in Atake v. A.G Federation (1982) 11 SC 153;(1982) LPELR-SC 5

held that:

“In proceedings instanter or trial brevi manu (i.e. punishment instantly for contempt in the face of the court), the judge before whom is the contemnor, is the prosecutor, witness and judge”

Contrast the above principle with the general one stated in LPDC v. Fawehinmi(1985)LPELR -SC.177/1984 thus :

 “And so, we arrived at the situation in which the Attorney General of the Federation…drafted the charges as the prosecutor and got himself to sit as a judge …such a proceeding would obviously have been null and void on that score as being an infringement of the principle nemo judex in causa sua.”

Judges have however been cautioned by Stephen L.J in Bologh v. St. Albans Crown Court(1975) 1 QBD 73 @ 90  that the punishment:

 “must never be invoked unless the ends of justice really require such drastic means; it appears to be a rough justice, it is contrary to natural justice; and it can only be justified if nothing else will do.”(Underlining mine)

Let us pause for a moment and ask, for instance, if a member of the audience during court session stands up and started singing and dancing disrupting the proceedings, what should the judge do ? It is submitted that it is a quintessence of contemptuous act and as such, he should be immediately punished for same, although restraint ought to be exercised by the judge in so doing. See the English case of R v. William Stone(1796) 101 E.R 684 @ 689;

But it is submitted that if another judge can try the contempt in facie curiae committed before a brother  judge, it is a desideratum. The Supreme Court of India made a similar remark by way of obiter in  the case of R.C Cooper v. Union of India(1970) 1 SCWR 86.


Waiver means, according to the English Mini Dictionary the act of waiving, or not insisting on, some right, claim or privilege. The idea of ‘waiver’ being an exception to the nemo judex rule is founded on the logical And legal premise that he who does not complain is deemed to have consented, irrespective of whether or not irregularity exist against him.

Therefore, Craig stated it correctly when he said:

“The premise behind the ability to waive is that it is only the individual who is concerned; and thus if that person “chooses” to ignore the fact that the adjudicator is an interested party then so much the worse for the applicant.”

It is finally submitted that this doctrine can only constitute as an exception to the nemo judex rule, if and only if the affected person neglects to assert his civil and constitutional right, if he chooses otherwise, then the doctrine of waiver is displaced.


It is doubtful that in the wave of the whirlwind of forceful assertion of constitutional supremacy , whether the common law rule of necessity is not liable to be displaced as unconstitutional by courts of justice and perhaps, because of the equitable doctrine of general juristic sense which presents or embodies fairness, justice, impartiality etc.

It is the submission of this writer that a purposeful legislative approach is required in this regard, so as to legislate purposefully not to make the presence of a particular adjudicator compulsory, because human beings by nature are subject to predisposition and inclination towards that is favorable to him, hence, making the common law rule of necessity redundant and unnecessary.

Finally, it is hoped that despite the justification of judges punishing the contemnor instantly for contempt in facie curiae, which has been discussed in this paper as a valid exception to the nemo judex rule, caution and judicial restraint will always be exercised.

Balogun Sofiyullahi.O. writes from Faculty of Law, Ahmadu Bello University, Zaria, Nigeria. 07032676039 or


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