WHAT IS NATURAL JUSTICE?
The Expression ‘Natural Justice’ can be used in two senses: Broader and narrower sense. In the wider or less technical sense, it means what is fair or what is reasonable or what is inherently equitable in a sense that everybody can relate to. The second is used to mean certain procedure, safeguards or principles developed by the common law imposed on persons particularly public persons in the performance of their functions. In this sense these are more limited, specific principles developed by the courts. Generally in the performance of their duties, such persons should follow the principles and any decision contrary is null and void.
The term is used for two references :
• Nemo Judex in causa sua: no man shall be a judge in his own cause or the rule against partiality or the rule that a decision maker must not be biased.
• Audi Alteram Partem: hear the otherside or hear both sides. This can be examined as the right to fair hearing.
AUDI ALTERAM PARTEM
From the broader definition, this concept is natural to human beings. This principle can be related to the Bible where in the creation story God asked Adam what he had done after taking the fruit. It was after he had heard them that he proceeded to deliver judgment. This is the first principle that a person should not be judged until he has been given a fair hearing. This principle is not western and known to the traditional society and customary law which have expression of these. The principle is that a person who makes a decision affecting the rights, legitimate interest of another or others is under a duty to give a hearing to the affected person.
WHAT KINDS OF BODIES OR PERSONS SHOULD FOLLOW THIS PRICNPLE OR THE SCOPE THE PRINCPLE RELATE TO?
Generally it applies to public bodies. It used to be said that it applied to persons making judicial or quasi-judicial decisions and executive or administration decisions.-Ridge v. Baldwin –police constable was prosecuted and acquitted on charges of corruption. Police service dismissed him without a hearing. It was held hat he had a right to be heard; Durayappah v. Fernando;Cooper v. Wandsworth board of Works
In Ghana it has been applied to commissions of enquiry-
Ex Parte Bannerman: A commission of inquiry was set up to inquire into the management of the State Fishing Company. During its sittings allegations of larceny were made against Bannerman. Subsequently, the commission, based on these allegations suspended Bannerman. Held: It was held that the Commission’s decision to suspend Bannerman without giving him an opportunity to defend himself was in breach of the audi alteram partem rule and therefore void.
Inkumsah v Jiagge Commission : Here the Jiagge Commission charged Inkumsah with perjury and subsequently passed a sentence of twelve months imprisonment with hard labour on him. The Court held that that decision to sentence him was null and void ni the absence of the application of the audi alteram partem rule. Ollenu JA(As he then was) held that the principle f our law is that a person should not be condemned in any civil or criminal cause without being given opportunity for a hearing. In giving his judgment, he said “It is a well settled rule of procedure of the common law as well as our customary law, that no person shall be condemned without being given the opportunity to answer any complaints made against him. The customary law principle in this regard is embodied in the Akan adage, Tieni mienu, meaning hear both side; and the Ga affirmation Ke anuu mo gbeianshishi le agbee le; meaning never condemn any one to death whose explanation you have not heard; and the Ewe adage, Ela manotsia awede menuneo; meaning literally, an animal is nevee killed without being offered water to drink. The principle laid down in each of those sayings in short is, that it is unjust to decide a matter against a person without first hearing what that person has to say in explanation to allegations made against him.”
It also applies to chieftaincy tribunals, traditional councils, national house of chiefs-R v. Chieftaincy Committee: Ex parte Oppong Kwame; Republic v. Asokore Traditional Council, ex parte Tiwaa
In Ex Parte Tiwaa, queen-mother Tiwaa was destooled in absentia by the Asokori traditional council, without being given any opportunity to defend herself or know of the reason/crime behind her destoolment. Furthermore, the traditional council had formulated no charges against Tiwaa for which she ought to have been tried. Held: It was held that this breached the right to a fair hearing rule and failure to adhere to the rules of natural justice, made the decision by the Asokore traditional council void.
It applies to disciplinary bodies-Ridge v. Baldwin; Republic v. Ghana Railway Corporation: Ex parte Appiah
Ridge v Baldwin : Ridge was appointed as Chief Constable of the County Borough of Brighton. Subsequently, he was arrested, tried on the charge of conniving with other to obstruct the course of justice and acquitted. He was later indicted on the charge of corruption and acquitted. Soon after the watch Committee of the Brighton, corporation being a disciplinary body as well as a quasi-judicial body regarding the police, dismissed him from office under the municipal corporation Act 1882, without giving him a hearing.
Held : The majority held that Ridge’s removal from office without giving him a hearing was a breach of natural justice and therefore void. It was stated per Lord Reid that , “that a decision given without regard to the principles of natural justice is void…The body with the power to decide cannot lawfully proceed to make a decision until it has afforded to the person affected a proper opportunity to state his case.” And per Lord Morris of Borth –Y-Gest that “It is well established that the essential requirements of natural justice at least include that before someone is condemned he is to have an opportunity of defending himself and in order that he may do so that he is to be made aware of the charges or allegations or suggestions which he has to meet.”
It applies to the CHRAJ
It applies to the universities-Glynn v. Keele University where the plaintiff was fined a sum of 10 pounds and suspended from residential accommodation as a sanction. The sanction was in response to an event early on, where the plaintiff among others were identified as being part of an incident on 19th June 1970 where some undergraduates of the university chose to either stand or sit naked on the university campus. The plaintiff then appealed for an injunction restraining the university from excluding him from residential accommodation on the grounds that hews not given a hearing before the sentence was passed on him. The appeal was dismissed but the court noted that the rules of natural justice should have been applied.
It applies to district assemblies and a range in whether to fight for a permit etc.
WHAT IS THE CONTENT?
It does not mean that the decision maker must operate like a court of law. Eg. Rules of evidence proceedings etc. The content is that the decision maker has a basic duty of fairness to those affected in determining the court. Good management, speed and efficiency, level of injustice that has been suffered and on the basis the court determine what the fair hearing implies based on the circumstance.
REQUIREMENTS
Right to representation: this right includes
• The person affected should be informed of the place, date, time of hearing, it means if the person has no adequate notice as to the date, time, place then there is a breach of natural justice
• The person should be given adequate notice to prepare his or her case. This will depend on the nature and complexity of the case and the question of fact for the courts. If you are not given adequate notice and a decision is made then there is a failure of het rule of natural justice
• The person must have assess to documents he or she is relying on to make their case
Secondly, a person who is affected who is affected in those cases as like termination of appointment, misappropriation, then the person must have notice of what he is charged of and particulars of the charge so that the person can respond what constitute adequate notice of the charge is a matter of fact to be determined by the courts.
Thirdly, there must be a right to legal representation. Thus if a person wants to be represented by a lawyer, he should have the opportunity.
OTHER CASES :
COOPER V WANDSWORHT BOARD OF WORKS : The plaintiff’s building was demolished without being given any notice. He should have notified the board but he did not and the board was not bound to inform him per the statute. It was held that although the constitution did not expressly say so, he should have been given a chance to be heard.
ABOAGYE V GHANA COMMERCIAL BANK (2001-2002) SCGLR 797 : The plaintiff was a senior manager of the defendant bank. Following some routine checks by the inspection / audit division of the bank, the plaintiff was given two queries relating to two separate sums of money paid into the bank accounts for two customers of the bank. In response , the plaintiff admitted that he had authorized the payments in the course of his statutory duties. The bank nonetheless considered the said authorization fraudulent, and accordingly suspended the plaintiff. In the meantime, the disciplinary committee of the bank initiated disciplinary action against the plaintiff. In the course of the proceedings, the plaintiff was neither serviced with notice nor the charges of the proceedings. Yet the committee recommended to the executive committee of the bank that the plaintiff be warned for negligence of duty and his salary be reduced by one notch. Upon further consideration, the executive committee increased the punishment of the plaintiff without giving him a hearing. Instead of one notch of salary reduction, the executive committee recommended four notches to the board of the bank, the disciplinary authority. The worst happened when the board ignored the previous recommendations and dismissed the plaintiff on grounds of “gross misconduct.” This was done without notice or a hearing to the plaintiff. The plaintiff whose petition against the dismissal was turned down, went to the High Court for a relief against unlawful dismissal. This was upheld but reversed by the Court of Appeal.
On further appeal to the Supreme Court it was unanimously held that fair hearing and notice of disciplinary charges and proceedings are constitutional requirements for adjudicating authorities and administrative bodies. Justice Bamford – Addo explained this to mean that the plaintiff “should in the course of fair trail have been served with proper disciplinary charges and given adequate notice of the date of the hearings as well as be given the opportunity to be heard.” A ‘proper notice to the plaintiff is a sine qua non to fair hearing of the case against him.’ The Court was of the opinion that giving queries to the plaintiff does not exonerate the defendant from applying natural justice rules of fair hearing or the bank’s disciplinary rules.
See also Awuni v WAEC :
In the case of Accra Heart of Oak v Ghana Football Association (1982-83) GLR 11, the audi alterim partem rule (i.e. hear the other side) came to play. The brief fact of this case is that after a football match played between Accra Hearts of Oak and Dumas on Sunday 29 March, 1981, some spectators who were at the stadium expressed their dissatisfaction with the referee’s handling of the match by indulging in acts of hooliganism which resulted in a considerable damage to property at the stadium.
Although there was no evidence that the wanton acts of hooliganism and destruction were committed by supporters of Hearts, the Ghana Football Association, in a press release, decided to ban Hearts from playing any “home” match at the Accra Sports Stadium until further notice. And further, that the Ghana Football Association would decide the venue at which Hearts would play their “home” matches from time to time. Hearts brought this action for an injunction to restrain the defendants from acting upon the said press release on the ground that they were not heard before the decision to ban them was taken. The defendants conceded that the plaintiffs were not heard before the punishment was imposed. They contended, however, that the plaintiffs had not disclosed any proprietary interest in the stadium which ought to be protected by the grant of an injunction.
On granting the application for an interim injunction, Korsah J (as he then was) held; “Counsel for the plaintiffs has reminded me that the rule that no condemnation should be pronounced behind the back of a man who has had no opportunity to appear and defend his interest either personally or by his proper representative dates from the time of Adam. He says, God asked of Adam: “Where art thou? Has thou eaten of the tree whereof I commanded thee that thou shouldst not eat?” And the same question was put to Eve also. We are not told whether any question was directed to the serpent. But then it was not a man and the rules of natural justice probably did not apply to it. To me, the law is clear and unambiguous; all judgments, even foreign judgments of a country which permit condemnation behind the back of a man, when repugnant to this rule of natural justice, cannot be enforced in Ghana. Where, however, a man has been given the opportunity to appear and answer charges against him, and does not avail himself of the opportunity, he cannot be heard to plead a breach of this rule.”
He held futher; “In my judgment, an act or decision consequential upon a contravention of the audi alteram partem rule may be restrained by prohibition or an injunction or set aside by certiorari.
By far the most persuasive argument pressed upon me by the defendants is that the courts are ill-suited for proceedings of this nature. But where the principles of natural justice are breached, there is no forum superior to the courts where redress can be sought.”
REP. V. HIGH CORUT DENU, EX PARTE AGBESI AWUSU II (NO.2 (2003-2004) SCGLR 907
WHAT IS NEMO JUDEX IN CAUSA SUA?
This means that a decision maker should not have financial interest or pecuniary or relational or proprietary interest in the subject matter of the decision or with those affected by the decision and that where the decision maker has a financial or relational interest with the subject matter or a party affected the decision maker should recuse or decline to take part and where he fails to do so, the decision is null and void.
PECUNIARY INTEREST OR FINANCIAL INTEREST
The courts have held that the decision maker should not have a financial interest and it does not matter whether the interest is minimal, once the person has interest, the decision will be invalidated – Dimes v. Grand Junction : In this case, the Chief Justice , Lord Cottenham unknown to him owned shares in Grand Junction Canal Ltd, against which he granted an injunction. It was held that his owning shares in the company was equivalent to him having a pecuniary interest in the case. The decision was therefore set aside and declared void.
Similarly, where the decision maker has a relational interest will be void-A-G v. Sallah ; Republic v. Constitutional Committee Chairman, Ex parte Braimah; Rep . High Court Denu, Ex parte Agbesi Awusu II; Republic v. High Court Denu, Ex parte Agbesi Awusu II (No.2)
Ag v Sallah : Both Sowah and Apaloo JSCs were said to have a relational interest in the Sallah v AG case. Apaloo was said to be an intimate friend of Sallah, that at times Sallah would reserve goods for purchase for Apalloo, hat the two on several occasions were head to be speaking in a strange language and in very familiar tone. On one occasion they were even purported to have been seen having a meal of pork together at a restaurant by two musims on their way to hajj. For Sowah, it was said that his brother in law was part of the category of public officers whose appointments had been terminated by the provisions of section 9(1) of the transitional provisions of the 1969 constitution that not withstanding he had on the behalf of his in-law and sister spoken to a higher authority to have his in-law reinstated.
Ex Parte Agbesi Awusu 1: torgbi Sri and Torgbi Agbesi were in dispute as to who was the acting president of the traditional council. While the dispute was unresolved, Agbesi convened a meeting with the Anlo traditional council to settle who the acting president of the council was and subsequently published the results of the meeting. Torgbi Sri then brought an action for contempt against Torgbi Agbesi at the Denu high court. While the action was pending in court, Judge Woanyah , travelled to Keta to attend a meeting on the issue of who was to be the acting president of the Anlo traditional council. And though he was unable to attend, he later met with the DCE of Keta and expressed his doubts over Agbesi wining the case. Agbesi then petitioned to have the case transferred, which led to an outpour of abusive language no him and his counsel by Justice Woanyah in court. In a second suit, which sought a motion for the recusal of Judge Woanyah, Judge Woanyah without giving Agbesi a hearing dismissed the suit. Agbesi then filed for an order of certiorari to quash the decision of Judge Woanyah in the SC on the grounds that the principles of natural justice had been breached since Judge Woanyah not only aligned himself with the other party, but also because he had demised the second suit without giving Agbesi a hearing.
In ex parte Barimah, Barimah sought for the decisions of the Constitutional committee headed by Mr. DeGraft Johnson to be quashed on the basis of bias. Barimah’s allegations were based on the fact that Mr. DeGraft’s wife was closely related to the first complainant and the queen mother of Fomena who were rooting for his destoolment. Plus DeGraft had in the past tried to settle the matter and had even on one occasion threatened the Barimah and his group. furthermore DeGraft was the sideo fh te sect rooting for Barimah’s removal, was a clasoe friend of a former occupant of the Adansi stool and had some involvement with the Fomena Elders.
The court in all three cases held that a suspicion of bias would not suffice as a real likelihood of bias unless proved by the party alleging the likelihood of bias. That the test to use in such situations was the test of the real likelihood of bias, where the facts would be viewed using the objective test, i.e. whether a reasonable observer from the facts of the case would conclude that there was a real likelihood of bias. So while in Ex parte Barimah and AG v Sallah, the courts held sufficient evidence was not tendered to prove a real likelihood of bias, they held in Ex parte Agbesi that there was a sufficient evidence to prove a real likelihood of bias.
PRE-DETERMINATION OF THE ISSUE
Asare v. Diaba v. Republic; Ex parte Agbesi Awusu Ii(No. 1). The idea is that a decision maker should not pre-determine the issue before the issue is examined. Where the maker has already made up the mind on the decision, it is invalid. That is the decision maker has already made up the mind on the decision, it is invalid. That is the decision maker should approach the decision with an open mind and rely only on the evidence. Thus the decision maker should not enter into the arena of conflict.
APPEALS: The decision maker should not be part of his own appeal. In this respect an appeal is differentiated from a review. A court or judge has power to review his own decision.
The decision maker should not have fore-knowledge of the facts of the case. Where the decision maker appears to have such knowledge he hall recuse. Ex Parte Braimah, Quist v. Kwantreng, Kwame v. Quaynor, Ex parte Agbesi Awusu
In Kwame v Quaynor, counsel for the appellant argued that the Judge was counsel for four cases, each concerning the Osu Alata lands and had recent information on the judgment in Danquah v Offei which had facts similar to the case at hand. It was held that what Ollenu J as he then was had was a foreknowledge of law not facts, that a foreknowledge in law was not equal to a foreknowledge of facts whci made his decision voidable.
In Quist v Kwantreng, it was argued that since Ollenu J, as he then was had sat on the case previously, he had a foreknowledge of which meant that he could not sit on the appeal since he was likely to be baised. It was held that this principle would not lie should the judge be one who on the previous case had tried or encouraged the litigants to settle their matter out of court.
HOW DOES THE COURTS DETERMINE WHETHER ON THE FACTS OF A PARTICULAR CASE THERE IS BIAS ON THE DECISION MAKER
In AG v. Sahllah, Ex parte Barimah, Ex Parte Agbesi Awusu, the courts have held that the test is an objective one and not subjective. That is whether a reasonable person ceased with all the facts will conclude that the decision maker is biased. There need not be actual bias. Whether there is a real likelihood of bias. In both AG v Sallah, and Ex parte Braimah it was held that there was no real likelihood of bias. This is the test in Ghana. it has been suggested in England that the test is whether there is a real danger of bias or a real likelihood of bias. Ex parte McCarthy. The test in Ghana however is whether there is a real likelihood of bias. Sallah v. AG
WHO HAS THE RESPONSIBILITY OF MEETING THIS STANDARD OR TEST?
AG V. Sallh, Ex parte Agbesi holds that the onus is on the person alleging bias. In Sallah, the court called the government in calling witnesses alleging bias. In Tsigata’s case there was a mere allegation that the judge was discussing the case but a mere allegation will not hold. In doing this the courts have held that the standard to be reached are :
Proof on balance of probability (civil standard)
Proof beyond reasonable doubt (criminal). Ex parte Braima, Ex parte Agbesi Awusu, the Supreme Court established that the standard proof of balance of probabilities as against that of Ex parte Braimah which is not used
WHAT ARE THE EXCEPTIONS TO THE RULE OF BIAS?
• Where there is a statutory duty: where by statute or constitutional duty is imposed on the decision maker or office holder, then the rule will not apply. When a statute enjoins you to perform a particular administrative duty. By the constitution or statute, it is the Chief Justice who is to empanel the court –Akuffo Addo v. Quarshie-Idun, Agyei Twum v. AG and Akwetey. However where the chief justice is sitting on the case he could be disqualified-Dimes v. Grand Junction
Akuffo-Addo v Quarshie-Idun : The General Legal Council issued a directive that a person who is not a licensed lawyer cannot argue a case in court. The Chief Justice was part of the Gneeral Legal Council.The plaintiffs argued that the bench had been empaneled by the Chief Justice who was a party in the suit, and therefore was likely to have selected his favourites to hear the case. The court held that since it was a duty imposed on him by law and exercisable by him alone, in a conflict between the principles of natural justice and statute, statue will prevail
Tsikata v Ag : Tsikata sued CJ. Argued that the practice direction of empaneling judges by the CJ in this instance is not correct and as such he should allow the most senior to empanel. But court held otherwise that the duty to empanel is the reserve of the CJ.
Agyei Twum v AG: A petition for the removal of CJ Acquah. Acquah was same person who empaneled the justices.
• Necessity: Marbury v. Madison: marshal was the secretary of state then before the hearing. The principle is that where insisting on the rule means that the case can’t be heard then the principle against bias will not be insisted upon
BILSON V APALOO [1981] GLR 15 : The plaintiff filed a writ against the Justice Apaloo, the CJ , before the SC for a declaration to quash the judgment of the CA sitting as the SC in the case of Tuffour v AG on the grounds, inter alia that (a) the five judges who constituted the court did not constitutionally hold valid nominations to sit in the said suit since Justice Apaloo , who had empaneled the court acted in contravention of articles 114(5), 121 (2) and section 3(1) of the transitional provisions of the Constiution , 1979; and (b) it was judicially improper for the five judges constituting the panel of the CA to accept the invalid nominations to sit on the said suit. At the hearing, counsel for the plaintiff raised a preliminary objection to the composition of the SC on the grounds that two members of the panel hearing the case should not sit as members of the SC since they had also sat as members of the CA in Tuffour v AG and that it was their judgment which was now being sought to be quashed. He further submitted that the natural justice rule against bias would be infringed if the two judges in their own cause. Counsel contended that there was a real likelihood that the two named justices would be biased in favour of the defendant. Held: Nemo judex in causa sua arose in two ways : (i) where the adjudicator was disqualified because he had direct financial or proprietary interest in the subject –matter of the suit; and (ii) there was a real likelihood that the adjudicator would be biased in favour of one of the parties. There were however three situations where the presence of any of the said disqualifying elements under the rule would not render the adjudicator incompetent to sit: (a) it was always open to the parties, on their being apprised of the disqualifying elements to wavie their rights to object to the adjudicator sitting in the particular case; (b) an enactment might permit an adjudicator to sit or might save the adjudication from invalidty; and (c) an adjudicator who might be otherwise disqualified would be nevertheless eligible and indeed obliged to sit if there was no other competent tribunal or if the quorum wouldn to be formed without him. The policy reason being that justice should be dispensed even by a “disqualified” judge than there should be a failure of justice or that the machinery of justice should grind to a halt in a particular case. In the instant case, natural justice had to yield to necessity since otherwise it would be impossible to constitute a quorum of five justices of the SC for the hearing of the case under Article 115(2) of the Constitution , 1979.
“The present composition of the SC is the CJ(who has been sued herein as the defendant) and six other Justices …[which] represented the minimum number prescribed by article 115(1)(b) of the Constitution. Should the two named justices excuse themselves from sitting…, there would be a total of only four justices of the SC left, that is, one short of the stipulated mandatory minimum quorum of five under Article 115(2) …That being so, the grant of the plaintiff’s counsel’s request and the withdrawal of the two named justices would automatically result in a failure of justice and in the inability of the SC as duly constituted to hear and determine the plaintiff’s suit…This is a proper occasion calling for the invocation of the doctrine of necessity to prevent a failure of justice, the allegation of bias against the two justices notwithstanding…”
• Acquiescence: the idea is that the principle against bias may be waived by a party and that the party should raise the objection in relation to bias at the first opportunity after he or she becomes aware of the facts. Thus if you are aware of the facts indicating bias, and you do not object and you go through it you will soon as possible after the hearing of the facts indicating bias.