NATURAL
JUSTICE IN THE HANDS OF A CRAFTY JUDGE
In the history of humanity, the rules of natural
justice were first observed by God in the Garden of Eden after Adam and Eve had
eaten the proverbial forbidden fruit. The first couple were given opportunity to
be heard before God, their judge, condemned their ill conduct and imposed hefty
sanctions on them. The rules were later equally observed by God before punishing
Cain who murdered his younger brother, Abel. The rules are among some of the
most age-long revered legal doctrines in all legal systems across the globe. Failure
to observe them can ground the quashing or nullification of any relevant
proceedings or decision of a court of competent jurisdiction or any other
adjudicating body. The rules are consistent with a principle of law which
posits that justice must not only be done but must be seen to have been manifestly
done.
Natural justice has two main components
namely: no man should be condemned unheard (audi
alteram partem), and no man should sit as a judge in his own case (nemo iudex in causa sua). Rules of
natural justice are thus meant to provide justice through procedural fairness
and to guarantee fair trial, unbiased and transparent judgments to all persons
who resort to the law for justice.[1]
This means that persons affected by a decision should not only be given prior
notice and an opportunity to be heard, but also be entitled to an unbiased
decision maker. This article focuses on the first leg of the rules of natural
justice since issues bordering on biased or hostile attitudes of a judge or an
adjudicating authority can easily be discerned and confronted or challenged
where necessary.
According to a plethora of legal
authorities, fair hearing includes receiving prior notice of decision making,
prior communication to parties of any change in the nature of hearing, right
to legal representation, and opportunity to put before the court a party’s
version of the case. Superior Courts are especially obliged by law to record
arguments, submissions, evidence led by parties and their witnesses, and all
decisions or orders or judgments made by them.[2]
Justice Sowah (as he then was) rightly stated in Cruishank v Commissioner of
Police[3] that a magistrate was obliged to record whatever
submission counsel makes in a case, and that failure to do so vitiates the
whole proceedings and makes the record incomplete. The Supreme Court of Ghana
has also held that any event that cannot be traced from the records of a court
cannot be accepted as having taken place.[4]
What then happens if a crafty judge deliberately fails to record any relevant
portion of a party’s testimony or argument of that party’s counsel in the
record book of the court? What also happens if a wily judge deliberately summarises
a party’s case in the record book in a manner that distorts the true import of
that party’s case? What becomes of a decision or an order of a court if a wily judge
after openly reading the decision in court later modifies the records to
disfavour one of the parties before same could be procured? The foregoing
issues usually occur in courts presided over by a magistrate or a single judge,
and in courts that are not automated.
Article 23 of the 1992 Constitution of
Ghana requires even purely administrative bodies to act fairly and reasonably
in consistent with rules of natural justice.[5]
It is argued that the right to fair hearing cannot be guaranteed if a party’s
case is not borne out by the record of a designated court. Thus a party may subtly
be denied of his right to fair hearing if a magistrate or a judge spitefully
records only an aspect of that party’s case while recording every relevant aspect
of the other party’s case. Consequently, the former party will suffer grave
miscarriage of justice which may not be salvaged even on appeal since the
record will not favour his or her case. I therefore suggest the following recommendations
to deal with the problem:
- The Government
should expedite the automation of all courts in Ghana;
- There should
be a practice direction on rules of natural justice to guide the courts;
- In the
absence of full automation, all unautomated courts should be given
recording gadgets to record all relevant proceedings, and parties or their
lawyers should have immediate access to such proceedings after court; and
- A court
should be required to order lawyers to file their written submissions or
addresses if it is not in a position to write down all the salient aspects
of their arguments in court.
Richard Obeng Mensah, author of Persecutions are Promotions. The writer is a certified life and
leadership coach, a legal academic and practitioner, and a prolific author of 7
books and over 200 articles.Blog:www.richard-obeng-mensah.blogspot.comEmail: richardobengmensah@gmail.com
[1] Republic v
High Court, Denu; Ex Parte Agbesi Awusi II (No 2) (Nyonyo Agboada (SRI III)
Interested Party) [2003-2004] SCGLR 909-910.
[2] Iddrisu v
Amartey [2009] SCGLR 670, 677.
[3] [1963] 2 GLR
369.
[4]
Ibid n 2.
[5]
Awuku-Sao v Ghana Supply Limited [2009] SCGLR 711 at 719-722.
