Legal Note – Breach of Natural Justice: Audi Alteram Partem Rule
“A court has generally no jurisdiction to proceed against a party who has not been served.” Barclays Bank of Ghana Ltd v Ghana Cable Co Ltd [1998-99] SCGLR 1, holding 1
“Order 19 rule 1 (3)… requires that all motions in pending proceedings shall be made with notice to the parties affected except where the Rules otherwise provide…. From the record, when the orders of 15/12/08 were made, the writ of summons had not been served on the Defendant for him to even enter appearance. Therefore, there was no way he could be given a hearing in the application for the order for the preservation of the vehicle. Consequently, the court under sub-rule 1 (4) should have either dismissed that part of the motion which the rules do not permit that it should be made ex-parte or adjourn the hearing in order that the notice may be given upon such terms as it considers just.” And that “In ordering the Defendant to surrender the three (3) vehicles without hearing him when order 25(2) read together with order 19(1) (3) makes it mandatory for the application to be heard on notice, the court breached the audi alteram partem rule and for that reason, an order for certiorari will issue.” And further that “By granting the application, the Court acted ultra vires and the orders made are therefore null and void.” In the instance case, the applicant at paragraph 6 of his affidavit avers that the respondent, has since, by an Exparte Application, obtained an order of this court dated 2nd August, 2019, for an interim preservation of the said Toyota Corolla, without the Applicants being given an opportunity to oppose same. In the circumstance, the court is therefore in breach of the audi alteram partem rule and as stated in the case of Barclays Bank of Ghana Ltd v Ghana Cable Co Ltd (supra) “A court has generally no jurisdiction to proceed against a party who has not been served.” Republic v. The High Court, Koforidua Ex-parte: Augustus Osae-Akonnor; Samuel Agyei; Interested party, Civil Motion No.: J5/15/09 dated 22nd April, 2009 at pages 6 and 7 (reported at the Judicial Training Institute website)