It is generally accepted that one of the reasons why this court annuls the proceedings by means of a certiorari decision is that one of the rules of natural justice has been violated; namely Nemo Judex en Causa Sua and Audi Alteram Partem. In Republic v. High Court, Bolgatanga; Exparte Hawa Yakubu [2001-2002] SCGLR 53, Acquah JSC (as it was then) explained the scope of the adversarial rule, according to which a person must be heard in appeal proceedings concerning him. On page 59 of the report, he stated: In the case of Abubakar Audu V FRN (2013) 53 NSCOR 456 @469: The law establishes that a fair trial within the meaning of Article 36(1) of the CFRN means a trial or hearing conducted in accordance with all legal rules formulated to ensure that justice is done to the parties. A fair trial requires respect for and consideration of the two principles/components of natural justice, namely Nemo Judex In Casua Sua and Audi Alteram Partem. The foregoing analysis shows that a fair trial in civil matters has now become a right in many jurisdictions. It is also clear that our Constitution and other Ghanaian laws contain appropriate provisions that guarantee the right to a fair trial in civil matters. However, it is clear from Bobie that a person in civil proceedings is entitled to a hearing, but not to a fair trial. The temptation is tempted to believe that the right to a fair trial in civil matters has now become a privilege. I humbly believe that the Supreme Court will take the position of recognizing a fair trial in all proceedings, including civil actions, in order to create true justice without technology.
If there had been no explicit provision in our constitution, I think that the line taken by Japan and India, where they recognized a fair trial in civil matters, even though their constitutions did not contain specific provisions, deserves to be emulated. Ghana, as a country with its great democratic credentials in the subregion, has gone too far to be left behind by the global train. As judges, we cannot continue to boast of being the guardians of our beloved constitution and the bastion of our proud democracy if we are not able to recognize the right to a fair trial in all cases, including civil and administrative proceedings. For example, In Re Effiduase Stool Affairs (No. 2), Republic v. Oduro Nimapua, President of the National House of Chiefs; Ex Parte Ameyaw II (No. 2), Acquah JSC (as it was then) stated on behalf of the Supreme Court: “For one of the fundamental principles of any civilized legal system is that a person has the right to a fair trial free from prejudice. No judicial system can be effective if a fair trial is not guaranteed for both parties. This right to a fair trial is now a fundamental right in the 1992 Ghanaian Constitution. [65] According to Cappelletti, after the events of the twentieth century, and in particular the Second World War, the need for a “constitutionalization” of the fundamental rules and guarantees of civil procedure arose in response to their violation and abuse.
[20] The granting of constitutional status to these norms was considered necessary to ensure a higher level of protection, as follows, for example, the Italian Constitution of 1948. [21] Moreover, the same response has seen the “internationalization” of fundamental procedural rights and safeguards, with an increasing number of international documents proclaiming such guarantees and grouping them under the umbrella of the right to a fair trial in civil matters. In addition to the fact that he had the right to be heard under section 19 before his document could be deleted, the applicant expressly alleged a breach of the rule of natural justice. If the Supreme Court had followed the jurisprudence, its position on this point might have been different. The Supreme Court ruled in Agbosu v. Kotey & Others. [64] that the cancellation or cancellation of the documents of a person who acquired real property without notice or hearing is contrary to the fundamental and clear rule of natural justice. The two rules mentioned above, which are considered components and pillars of natural justice, are carefully discussed below. In view of the facts on which this request was based, since the 1st party decided to execute the judgment by an application for an order of Mandamus before the court, it should have served the proceedings on the applicant, even though this judgment had already been delivered on the merits.
The natural rule of justice of granting a party a hearing before making an order affecting him or her does not affect the substance of the party`s case. Although the interested party claimed that the applicant had been served, it appears from the evidence that there was no breach of the principle of natural justice of the Audi alteram patem. For this reason, we will grant the request for the appointment of certiorari. Jackson alluded to the fact that the common law has long recognized two minimum fair trial guarantees, known as natural rights; The principle of judicial impartiality (nemo judex in causa sua) and the right to be heard (Audi alteram partem). [15] Over the years, the law has evolved to include many other elements, including the right of access to justice, public hearings and a hearing within a reasonable time. 1. The Supreme Court, Court of Appeal, High Court or Regional Court may grant legal aid to any party to proceedings before the Tribunal if the court considers it desirable in the interests of justice that that party should receive legal aid and that he does not have the financial capacity to use the services of a lawyer. In order to get justice, countries around the world are introducing some kind of legal system. Legal and political theorists have debated the problem of whether justice is part of the law or simply a moral judgment of the law. An example of the latter is when we speak of an “unjust law.” However, justice is an integral part of the law and one of the main objectives of the law is to preserve and enforce the principle of natural justice. Therefore, justice is not separate or different from the law.
It was to this order that the applicant sought to have the court set aside because the High Court lacked jurisdiction to make the order and, secondly, for breach of natural justice, since he was not notified of the second application in which the order was made. He presented a search report as “A6a” evidence as evidence that it was not served. He argued that the application for mandamus should have been served on him in order to be heard, since he was concerned by the order sought. “The right to a fair trial is a jus cogens, a peremptory rule of general international law, defined in article 53 of the Vienna Convention on the Law of Treaties as `a norm accepted and recognized by the international community as a whole as a norm which cannot be derogated from and which can be modified only by a subsequent norm of ordinary law of the same nature. In addition to the right to a fair trial, there are other guarantees, such as equal access to justice and equality of arms, which require that the parties to the proceedings in question be treated in civil and criminal proceedings without discrimination and/or distinction based on the nature or nature of the proceedings. Therefore, we believe that access to justice and the application of the constitutional right to a fair trial must be applied in such a way as to ensure that no individual is deprived of the right to seek justice procedurally. [66] This case concerns a land dispute. The complainant sought an order that the Supreme Court quash an order of mandamus issued by the High Court. The applicant alleged that the High Court`s order was contrary to natural justice because he had not been notified of the application in which the order had been made.
The Supreme Court has held that the Audi alteram patem rule, according to which a person must be heard in proceedings in which an appeal concerning him is sought, must be followed in all circumstances. The evidence in the present case showed that the applicant was not served, which constitutes a breach of the “Audi alteram patem” rule. In light of this breach of natural justice, the Supreme Court allowed the appeal and set aside the lower court`s decision. Despite this decision, in 2019 a High Court in Kenya departed from the approach taken by the Court of Appeal in Pinnacle Projects Limited v. Presbyterian Church of East Africa and Another[57] and applied the constitutional guarantee provided for in Article 50 of the Kenyan Constitution to a civil case.
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