What is Natural Justice?
This theory underscores the importance of treating an individual justly. It originated from judicial decisions rather than legislative enactments but has gained widespread acceptance. Termed “natural” due to its perceived inherent nature, Natural Justice conventionally encompasses two principles:
- Nemo Judex in Causa Sua
- Audi Alteram Partem
Nemo Judex in Causa Sua
This principle essentially advises against presiding over one’s own case and it is also referred to as the rule against bias. The presence of pre-existing notions related to political affiliations, tribal associations, physical appearances, and names can lead to partiality. The purpose of this rule is to prevent any form of bias. If a judge has a personal interest in a case, they are advised not to adjudicate it. The interests that might disqualify a judge from a case include:
- Property interests
- Relational interests, such as when one of the involved parties is a relative or spouse
- Financial or pecuniary interests, for instance, when a judge has financial ties with a bank that is a party in the case.
- Foreknowledge of facts in the case, where the judge is already acquainted with the details before the trial.
In the case of R v Gough[1], the test of determining bias was discussed. The distinction lies in the argument between the likelihood of bias and a real likelihood of bias. In the United Kingdom, the standard is to establish the likelihood of bias when determining bias.
Conversely, in Ghana, the stance is to establish a real likelihood of bias. In the case of Attorney-General v Sallah[2], the issue of a real likelihood of bias was brought up. The court opted to depart from the common law perspective, as it did not consider the unique cultural context of Ghana. Given the close-knit nature of extended families in our African context, where everyone is acquainted with each other, it is necessary to substantiate the proximity of the alleged relationship between a judge and a party. Mere accusations are insufficient in this regard.
There are exceptions to the Nemo Judex Rule, outlined as follows:
- Statutory Duty: In cases where a statute mandates an individual to fulfill a duty, the statute takes precedence over natural justice.
- Acquiescence/Waiver: If an individual fails to assert their rights and neglects to address perceived bias, the law may allow for the alleged bias. It is essential to promptly raise concerns when bias is observed.
- Necessity: In situations where the judge is the only qualified individual to preside over the case, any alleged bias may not be considered valid.
- If one obstructs the opportunity to be heard, the claim of judicial bias cannot be made.
Dr. Date-Bah JSC, in the unanimous decision of the Supreme Court in the case of Republic v High Court, Denu (Exparte Agbesi Awusi III) (No.2) Nyonyo Agboada (Sri III) Interested Party[3] stated as follows:
“Natural justice or procedural fairness demands not only that those affected by a decision should be given prior notice and an opportunity to be heard (audi alteram partem) rule, but also that there should be an entitlement to an unbiased decision maker (nemo judex in causa sua and allied ideas)”
Audi Alteram Partem
This principle essentially advocates for hearing the opposing side, emphasizing the necessity of comprehensive evidence from both parties before reaching a judgment. The underlying concept is centered around “fairness” or a fair hearing, a principle enshrined in Article 19 of the 1992 Constitution of Ghana. In the case of The Republic v. High Court, Tema; Ex Parte Yaw Godwin Dorgbadz, Monique Tetteh Dorgbadzi and Michelle Dapaah Tetteh Garfield Lee Jr. (Interested Party)[4] the learned Justice Dotse, quoting J.M Kelly from his book,[5] he referred to John 7:51 of the Bible which states as follows:
“Does our law condemn a person before it first hears him and finds out what he is doing?”
The learned authors also referred to the case of R v Chancellor of the University of Cambridge[6], per Fortescue J … where he stated thus:-
“…even God himself did not pass sentence upon Adam, before he was called upon to make his defence “Adam” (says God) “where art thou? Hast thou eaten of the tree, whereof command thee that thou shouldst not eat.”
In the case of Serbeh-Yiadom v Stanbic Bank (Gh) Ltd.[7] the Supreme Court stated as follows:
“It is a salutary and well-known principle of law that a person should be given the opportunity of being heard when he is accused of any wrongdoing before any action is taken against him”.
In the case of The Republic Vs. High Court, Cape Coast Ex Parte: John Bondzie Sey [University of Education Winneba-Interested Party][8], the Supreme Court in stating the effect of failure to hear a person, cited the case of Republic V. High Court, Accra Ex-Parte Salloum ( Senyo Coker (interested party)[9] where the Supreme Court stated thus:-
“Equally so, if a party is denied the right to be heard as in this case, it should constitute a fundamental error for the proceedings to be declared a nullity. The courts in Ghana and elsewhere seriously frown upon breaches of the audi alteram partem rule to the extent that no matter the merits of the case, its denial is seen as a basic fundamental error which should nullify proceedings made pursuant to the denial.” Emphasis
On some occurrences, a party can be said to have waived his right to be heard. In the case of Republic v Court of Appeal Ex Parte Eastern Alloy[10] the court stated thus:
“It is trite law that the rules of natural justice can be waived, see Bilson v Apaloo (1981) GLR 24 SC. There is no suggestion that the applicant was unaware of the hearing date of the motion, yet it absented itself without even representation by counsel. A clearer case of waiver of the right to a hearing could not be imagined.” Emphasis
Therefore, deliberately absenting oneself would constitute a waiver.
This was also discussed in the cases of Republic vrs High Court (Human Rights Division), Accra; Ex parte Josephine Akita (Mancell – Egala and A-G, Interested Parties)[11] and where the court stated as follows:-
“a person who has been given the opportunity to be heard but deliberately spurned that opportunity to satisfy his own decision to boycott proceedings cannot later complain that the proceedings have been proceeded without hearing him and then plead in aid the audi alteram partem rule”.
Audi Alteram Partem and Notice in Court Proceedings
Per the High Court Civil Procedure Rules, 2004 (C.I..47)[12] all applications should be with notice to the other parties in the suit, except otherwise provided. C.I.47[13] states further that if on hearing a motion the Court thinks that any person to whom notice has not been given ought to have or to have had notice, the Court may either dismiss the motion or adjourn the hearing so that the notice may be given upon such terms as it considers just.
The concept of notice is directly related to the principle of audi alteram partem and the fact that every side to a story has to be heard and all parties in a suit must be afforded the opportunity to tell their side of the story. In the case of In re Kumi (Decd), Kumi v Nartey [2007-2008] 1 SCGLR 623 Sophia Adinyira JSC stated as follows:
“As said earlier, it is trite law that a person cannot be found or liable by an order or judgment unless he had been given fair notice of the trial proceeding to enable him to appear and defend himself. This is the essence of justice. Failure by a court or tribunal to do so would be a breach of the rules of civil procedure and natural justice. A judgment or order procured under such circumstances is, in our view, a nullity”
Also, in the case of Awuku-Sao v Ghana Supply Co. Ltd[14] where the court again speaking with unanimity per Adinyira JSC held as follows:-
“It is trite law and a cardinal principle of natural justice that no man shall be condemned unless he has been given prior notice of the allegation against him and a fair opportunity to be heard.”
In conclusion, the doctrine of notice which is so closely related to the principle of audi alteram partem is so fundamental in our jurisprudence, as seen above; even to the extent that the court is willing to treat an entire judgment as a nullity if fair and reasonable notice is not given to a person to enable him appear and defend himself.
[1] [1993] ALL ER 724
[2] [1970] CC 54
[3] [2003-2004] SCGLR 907 at 924-925
[4] Supreme Court Civil Motion No. J5/08/2023 Dated, 6th June 2023
[5] (1964) 9 Natural Law Forum 103
[6] [1723] 1 Str. 557, 567
[7] [2003-2005] 1 GLR 86
[8] Supreme Court Civil Motion No. J5/74/2019 Dated 12th February 2020.
[9] [2011] 1 SCGLR 574
[10] [2007-2008]1 SCGLR 371
[11] [2010] SCGLR 374
[12] Order 19 rule 3
[13] Order 19 rule 4
[14] [2009] SCGLR 710, at 722
BY; PORTIA ADJEI-MENSAH ESQ.
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