Natural Justice: An Impetus to Equity, Fairness and Human Rights in Ghana

Introduction

Under the broad topic or subject of jurisprudence, there are many theories of law. Some of these theories of law include theory of Natural Law. Natural Law simply talks about a theory of ethics that says that human beings possess intrinsic values that govern our reasoning and behavior. It states that there are universal moral standards that are seen across time periods and societies because these standards form the basis of a just society. Natural law holds that there is a higher law than the law that is made by human institutions and authorities. The laws of human institutions and authorities can only be right if they conform to this higher law.

It is, however, important to draw the distinction between, on the one hand, equating law with morality, and on the other hand, the natural law approach which posits that law cannot be dissociated from morality, or that law must pass the moral test. The classical doctrine of natural law thus derives from a law of nature that is very different from ordinary laws. However, natural law is immutable and universal. Also, it is a higher law that is superior to all laws made by higher authorities.

Indispensably, legal systems have a function-to secure justice. Grossly unjust laws (e.g. “White people may own Black people as slaves,” “women may not own property or vote”) are not really laws at all, but a perversion of law or mere violence. As St. Augustine put it, lex injustia non est lex (an unjust law is no law at all). Acquinas also put this in a different way; positive law has as its purpose the common good of the community. However, it is important to note that, any positive law which is inconsistent with either natural law or divine law is not really law at all. Hence, not only is there no moral obligation to obey it, but there is no legal obligation to obey it, either. Augustine, Acquinas, and Martin Luther King are supporters of this view.

Definition of Natural Justice

The phrase ‘natural justice’ is derived from the Roman word ‘Jus Naturale’, which means principles of natural law, justice, equity, and good conscience. However, these principles did not originate from any divine power, but are the outcome of the necessity of judicial thinking, as well as the necessity to evolve the norms of fair play. Basically, natural justice refers to the basic fundamental principles of fair treatment. 

Historical Background of Natural Justice

In the Supreme of Canada in Ottawa, Ontario, 1999, the court ruled in Baker v Canada (Minister of Citizenship and Immigration) that the requirements of natural justice vary according to the context of the matter arising. Imperatively, it must be established that, natural justice is a term of art that denotes specific procedural rights in the English legal system and the systems of other nations based on it. It is, however, similar to the American concepts of fair procedure and procedural due process, the latter having roots that to some extent parallel to the origins of natural justice. Although natural justice has an impressive ancestry and is said to express the close relationship between the common law and moral principles, the use of the term today is not to be confused with the “natural law” of the Canonists, the mediaeval philosophers’ visions of an “ideal pattern of society” or the “natural rights” philosophy of the 18th century.

The requirements of natural justice or a duty to act fairly is dependent on the context. In Barker v Canada (Minister of Citizenship and Immigration) (1999), the Supreme Court of Canada set out a list of non-exhaustive factors that would influence the context of the duty of fairness, including the nature of the decision being made and the process followed in making it, the statutory scheme under which the decision-maker operates, the importance of the decision to the person challenging it, the person’s legitimate expectations, and the choice of procedure made by the decision-maker.

Earlier, in Knight v Indian Head School Division No 19 (1990), the Supreme Court held that public authorities which make decisions of a legislative and general nature do not have a duty to act fairly, while those that carry out acts of a more administrative and specific nature do. In fact, preliminary decisions will generally not trigger the duty to act fairly, but decisions of a more final nature may have such an effect.

Indispensably, whether a duty to act fairly applies depends on the relationship between the public authority and the individual. No duty exists where the relationship is one of master and servant, or where the individual holds office at the pleasure of the authority. On the other hand, a duty to act fairly exists where the individual cannot be removed from office except for cause. Eventually, a right to procedural fairness only exists when an authority’s decision is significant and has an important impact on the individual.

Rules Underpinning Natural Justice

“No person shall be deprived of his life or personal liberty except according to the procedure established by law”. This is that procedure which is held by the courts to be the rules of natural justice. Natural justice is underpinned by two basic or fundamental rules. These principles are: Nemo judex in causa sua (not being a judge in one’s own cause) and Audi alteram partem (hearing the other party also).

Significantly, over the years, these two rules have evolved as representing the rules of natural justice in judicial, quasi-judicial and administrative processes. The first rule is ‘nemo judex in causa sua, which is translated as no man shall be judge in his own cause. The second rule is ‘audi alteram partem’, which means that no one should be condemned unheard.

It is of enormous importance to note that, proceedings before the civil court are governed by the Code of Civil Procedure; criminal proceedings are governed by the Criminal Procedure Code, but in respect of departmental enquiries, no detailed guidelines have been codified. It is, however, sine qua non to establish that, in absence of any codified law, proceedings under departmental enquiries are substantially governed by the principles of natural justice. However, principles of natural justice are subservient to statutory provisions. In fact, they are not the rule of law that can override the codified laws of the law. In A.K Kraipak v Union of India (AIR 1970 SC 150), the Supreme Court said that the aim of natural justice is to secure justice or put it negatively, to prevent miscarriage of justice.

Nature of the Rules of Natural Justice

The nature of the rules of natural justice is flexible. They, however, tend to change with the exigencies of time, and circumstances of each case. Due to their flexibility, they may seem to be vague or uncertain, but they have been very well adopted by the Ghanaian legal system. In fact, their aim is to prevent arbitrariness and miscarriage of justice. Of course, they are not enforceable as fundamental rights, but nevertheless, they ensure a firm safeguard against any arbitrary action that may adversely affect the rights of the individuals.

Audi Alteram Partem Rule

In Ghana, departmental enquiries relating to the misconduct of individuals should be in strong conformity with certain standards. One of the standards is that the person concerned must be given a fair and reasonable opportunity to defend himself. Classically, it means that, no man or person should be condemned without hearing and he or she has the right to know the accusations so levelled against him or her. Also, he/she has the right to know the premise on which such accusation is based, and a reasonable opportunity to adduce all relevant evidence in his defence. In Awuni v West African Examination Council. Facts: The Applicant/Plaintiff was a candidate of the Respondent’s examination. The plaintiff and some other 12 candidate’s examination results were cancelled by the Respondent. The Respondent’s reason for the cancellation of the examination results of the Plaintiff was that, the Plaintiff had foreknowledge of the examination. The Plaintiff brought an action to the court for determination. The plaintiff challenges that, the punishment meted out to him by the Respondent was unfair since he was not given the reasonable opportunity to be heard. Held: The court held that, the decision of the Respondent was wrong and has no legal effect. In Aboagye v Ghana Commercial Bank Ltd (2001-2002) SCGLR 797. Facts: The plaintiff was a senior manager of the defendant bank. The plaintiff authorized some payments in the course of his statutory duties, the audit report of the defendant bank revealed. As a result of disciplinary committee recommendations, the plaintiff was dismissed on grounds of “gross misconduct.” This was done without notice or a hearing to the plaintiff. The plaintiff petitioned the High Court for a relief against his unlawful dismissal. In the court of first instance, his petition was upheld but reversed by the Court of Appeal. Held: The Supreme Court unanimously held that fair hearing and notice of the disciplinary charges and proceedings are constitutional requirements for adjudicating authorities and administrative bodies. The court went ahead to hold that, the dismissal of the plaintiff was illegal and has no legal effect.

 In the case of Nagar Palika, Nataur v U.P. Public Services Tribunal, Lucknow, 1998 SCC (L&S) 567.  Facts: Despite reminders, the employee neither submitted reply to the charge sheet, nor appeared before the enquiry officer, and neither did he inspect the records, in spite of the opportunity given to him. Held: It was held that no violation has been caused to the rules of natural justice. In the case of Syndicate Bank v Venkatesh Gururao Kurati (2006(2) SCALE 101, it was held by the Supreme Court that non-supply of documents on which the enquiry does not rely during the course of enquiry, does not create any prejudice to the delinquent officer, therefore, there is no violation of the rules of natural Justice.

Nemo Judex in Causa Sua Rule

Apparently, the maxim means that no person can be a judge in his own cause. The fundamental rule of natural justice in departmental proceedings is that the disciplinary authority should be impartial and free from bias. It must be interested in or related with the cause which is being decided by him. The personal interest aspect can be in the shape of some pecuniary benefit or some personal relation or even ill-will or malice or any official bias against any of the parties.

The real test is whether a man of ordinary prudence would have a feeling of bias. Realistically, this follows from the principle that justice should not only be done, but should manifestly seem to be done. In Attorney-General v Sallah (1970) CLSC11217. Fact: Following the decision in Sallah v Attorney-General, which Sallah got judgement in his favour, the Attorney-General instituted the present action and contended that Apaloo, Siriboe, Sowah, Anin and Acher, JJSC who sat on the case, Apaloo and Sowah were disqualified to have sat on the case. He further contended that Apaloo and the plaintiff, now respondent were intimate or bosom friends. Held: The real likelihood of bias test was not passed. In Akufo-Addo and Others v Quarshie-Idun and Others. Facts: Three plaintiffs, each of whom was a lawyer, sued the Chief Justice, the Judicial Secretary and the General Legal Council. They complained that through the conduct of the defendants, that is, by the issue of certain circulars to judicial officers, they had been denied their right to audience as Barristers in the Courts. In the court of first instance, the High Court granted an interim injunction against the first two defendants, restraining them both in their personal and official capacity from baring the plaintiffs from holding themselves as Barristers. The defendants filed for this appeal at the Court of Appeal and prayed the Court to set aside the ruling of the High Court. At the appeal, the plaintiffs, now respondents objected to the Chief Justice who was a party to the appeal yet had the power to empanel the bench of the Court of Appeal. The respondents contended that that amounted to an offence to the principle of natural justice (nemo judex in causa sua). Held: The Chief Justice alone is enjoined by law to empanel the bench of the Court of Appeal.

In Tsatsu Tsikata v Chief Justice & Attorney-General. Facts: In February 2002, the Supreme Court gave a 5-4 ruling in favour of the plaintiff. The Attorney-General who is a defendant in the present case filed a Motion for Review. Before the motion could be heard, the plaintiff filed this writ to invoke the original jurisdiction of the Supreme Court. Held: The Court held among other things that, the Chief Justice cannot be directed as to how to exercise his discretionary powers. The writ is speculative and unmeritorious and therefore, dismissed. 

In R. v Sussex Magistrates; Ex parte McCarthy. Facts: McCarthy was a motorcyclist who was involved in an accident. He was then prosecuted before a Magistrate’s Court. Unknowing to him and his solicitors, the clerk to the Justices was a member of the firm of solicitors involved in a civil claim against him, an action flowing from the same accident which had resulted in the prosecution. The justices retired with the clerk and came back to give their judgement which found McCarthy guilty. McCarthy then filed the present case alleging bias. He averred that the ruling of the Magistrate’s Court should be quashed. Held: The rule of natural justice had been breached. Therefore, the ruling of the Magistrate’s Court is quashed.

In the case of L’Air Liquide Ghana Ltd v Anin and Others. Facts: Some three persons were caught with three pieces of carbide and they mentioned the three plaintiffs-respondents as those who sold the carbide to them. The respondents were arrested and kept overnight by the police on the orders of the defendants-appellants. The next day, they were discharged with and charges were preferred against them. It was advised that, the appellants take a departmental action rather than a criminal action through the Courts. A disciplinary inquiry was conducted by the appellants with the technical manager as chairman. Members were the deport manager and a member each of the local union of the TUC and the Committee for the Defence for the Revolution to investigate the alleged stealing charge. The respondents were summarily dismissed as a result of the inquiry. They brought an action at the Circuit Court, Accra for unlawful dismissal on the ground that the inquiry violated the principles of natural justice because they were not given fair hearing. Held: Judgment was entered for the plaintiffs-respondent. Defendants being dissatisfied with the ruling of the Circuit Court, an appeal was brought to the Court of Appeal, Accra. The Court of Appeal upheld the ruling of the Circuit Court and therefore, dismissed the appeal.

Rules Against Bias

Generally, people are barred from deciding any case in which bias exists or bias may fairly be suspected. This principle embodies the basic concept of impartiality, and applies to courts of law, tribunals, arbitrators and all those having the duty to act judicially. In Ghana, a duty is imposed on a public authority to act judicially whenever it makes decisions that affect people’s rights or interests, and not only when it applies some judicial-type procedure in arriving at decisions.

The basis on which impartiality operates is the need to maintain public confidence in the legal system. Noticeably, the erosion of public confidence undermines the nobility of the Ghanaian Legal System and leads to ensuing chaos. Lord Denning, the Master of the Rolls observed the essence of the need for impartiality in Metropolitan Properties Co (FGC) Ltd v Lannon (1968): “Justice must be rooted in confidence and confidence is destroyed when right-minded people go away thinking: ‘The judge was biased.” However, public confidence as the basis for the rule against bias is also embodied in the often-quoted words of Lord Hewart, the Lord Chief Justice of England and Wales, that “it is not merely of some importance, but of fundamental importance that justice should not only be done, but should manifestly be seen to be done.”

Forms/Types of Bias

Basically, there are two forms or types of bias. These are: Actual bias and Imputed bias. Actual bias is established where it is actually established that a decision-maker was prejudiced in favour of or against a party. However, in practical sense or in practice, the making of such an allegation is rare as it is very hard to prove. On the other hand, imputed bias is based on the decision-maker being a party to a suit, or having a pecuniary or proprietary interest in the outcome of the decision. In fact, it is sine qua non to note that, once this fact has been established, the bias is irrebuttable and disqualification is automatic-the decision-maker will be barred from adjudicating the matter without the need for any investigation into the likelihood or suspicion of bias. Classically, a case in point is Dimes v Grand Junction Canal (1852), which involved an action between Dimes, a local landowner, and the proprietors of the Grand Junction Canal, in which the Lord Chancellor, Lord Cottenham, had affirmed decrees made to the proprietors. However, it was discovered by Dimes that Lord Cottenham, in fact, owned several pounds’ worth of shares in the Grand Junction Canal. This eventually led to the judge being disqualified from deciding the case.

Exceptions to the Rule Against Bias

Necessity

There are cases or instances in which a disqualified adjudicator cannot be replaced, as no one else is authorized to act. It has been observed that “disqualification of an adjudicator will not be permitted to destroy the only tribunal with power to act.” In such cases, natural justice has to give way to necessity in order to maintain the integrity of judicial and administrative systems. However, this issue regarding necessity was raised in Dimes. The Lord Chancellor had to sign an order for enrolment in order to allow the appeal to proceed from the Vice-Chancellor to the House of Lords. It was held that his shareholding in the canal company which barred him from sitting in the appeal did not affect his power to enroll, as no one but him had the authority to do so. It was mentioned this was allowed “for this [was] a case of necessity, and where that occurs the objection of interest cannot prevail (see Tsatsu Tsikata v CJ and A-G & Akufo Addo and Others v Quarshie-Idun & Others).

Waiver

The court normally requests that an objection be taken as soon as the prejudiced party has knowledge of the bias. If an objection is not raised and proceedings are allowed to continue without disapproval, it will be held that the party has waived its right to do so.

Effect of a finding of bias

In Dimes, the judges advised the House of Lords that Lord Cottenham’s pecuniary interest made his judgment not void, but voidable. This advice is not wrong in the context of a judicial act under review, where the judgment will be held valid unless reversed on appeal. However, in the cases of administrative acts or decisions under judicial review, the court can only intervene on the grounds of ultra vires, hence making the judgment void. Lord Esher said in Allison v General Council of Medical Education and Registration (1894) that the participation of a disqualified person “certainly rendered the decision wholly void”.

Right to Fair Hearing under the Constitution, 1992

Pursuant to Article 19 of the Constitution, 1992, a person charged with a criminal offence shall be given a fair hearing within a reasonable time by a court. Clause 2 states or provides that, a person charged with a criminal offence shall-

(a) in the case of an offence other than high treason or treason, the punishment for which is death or imprisoned for life, be tried by a judge and jury and-

     (i) where the punishment is death, the verdict of the jury shall be unanimous; and 

     (ii) in the case of life imprisonment, the verdict of the jury shall be by such majority as Parliament may by law prescribe;

(b) in the case of an offence triable by a Regional Tribunal the penalty for which is death, the decision of the Chairman and the other panel members shall be unanimous;

(c) be presumed to be innocent until he is proved or has pleaded guilty;

(d) be informed immediately in a language he understands, and in detail; of the nature of the offence charged;

(e) be given adequate time and facilities for the preparation of is defence;

Significantly, the right to fair hearing requires that individuals are not penalized by decisions affecting their rights or legitimate expectations unless they have been given prior notice of the cases against them, a fair opportunity to answer them, and the opportunity to present their own cases. Besides promoting an individual’s liberties, the right to a fair hearing has also been used by courts as a base on which to build up fair administrative procedures.

Importantly, it is now well established that it is not the character of the public authority that matters but the character of the power exercised. In the United Kingdom, prior to Ridge v Baldwin (1963), the scope of the right to a fair hearing was severely restricted by case law following Cooper v Wandsworth Board of Works (1863). In R v Electricity Commissioners, ex parte London Electricity Joint Committee Co. (1920), Ltd. (1923), Lord Atkin observed that the right only applied where decision-makers had “the duty to act judicially”. In natural justice cases this dictum was generally understood to mean that a duty to act judicially was not to be inferred merely from the impact of a decision on the rights of subjects; such a duty would arise only if there was a “superadded” express obligation to follow a judicial-type procedure in arriving at the decision.

What is the Meaning of Fair Hearing?

It does not mean that administrative tribunals should behave like courts: it means adhering to basic fundamental procedures based on the exigencies of each particular case: GMC v Spackman (1943) “the requirements of natural justice must depend on the circumstances of the case, the nature of the enquiry and the rules under which the tribunals acting;” i.e. NJ fairness creates basic rules – foundation, so to speak, which will be built upon by circumstances of each case. There is a presumption that courts, tribunals and anybody/organ with trappings procedures and functions similar to courts must obey the rule. This presumption is rebuttable; Courts/tribunals may in some particular circumstances, be empowered to derogate from the principles of natural justice; Bodies whose designation, composition, and normal proceedings do not evoke an image of adjudication may be obliged to follow the rule; especially where: The language in which their functions are cast suggests that they have a duty to conduct a hearing before arriving at a decision; They are required, or empowered, to hear matters analogous to lites inter partes (i.e. between parties); or They are empowered or required to determine questions of law, or fact or both;

Occasionally, it may arise solely by virtue of the fact that an administrative agency or a public official is required to take an action that will impact on the interests of an individual is enough for the rule to be held to be applicable.

When is Fairness Duty Implied by the Courts;

Basically, three Key Factors Involved:

1. The nature of the interest Affected. 

There are some forms of interest that are afforded no procedural protection at all; e.g. soldier’s interest in not being transferred; Generally, rights in property, personal liberty, status, immunity from penalties or other fiscal impositions; interests in preserving one’s livelihood and reputation, are potentially protected interests; See R v MacArthur, Ex Parte Cornish (1966): right to drink considered a protected right by the Tasmanian Supreme Court; The police was given power to order licensees not to sell alcohol to habitual drunkards. Plaintiff’s wife caused an order to be issued against him by the police. Held: The order was void – plaintiff was not given the right to rebut the accusation; 

1. Conditions of encroachment: i.e. Court will be quick to imply AAP where there is a potential that the outcome of the investigation will be to the effect that the subject matter of the investigation is incompetent; or has engaged in misconduct;

Also, where the outcome of the investigation will cast aspersions on the reputation of the individual, or will subject the individual in question to legal hazard; Re Pergamon Press;

1. The sanction: the more severe the penalty, the encroachment, or the encroachment on rights, or the potential damage to reputation, the more likely it is that courts will imply the existence of the AAP rule;

Fairness; Procedure

Classically, the procedure is that, where the statutory procedure laid out by the legislation is sufficient, the procedure which is followed is that of the legislation. However, where the legislative procedure is insufficient, the common law can step to protect citizens via the NJ rules: “the justice of common law will supply the omission of the legislature.”

1. Fair hearing should still take place even if one believes that a hearing would make no difference to the outcome. The law is full circumstances in which “inexplicable conduct was fully explained” or “fixed and unalterable determinations that, by discussion, suffered change” (John v Rees [1970]).
2. Administrative fairness means the right to know the case against you: i.e. if the decision was based on a report, the contents of which were not made available to you. See Kanda v Government of Malaya (1966).
3. Accused party only hears part of the charge made against him; Maradana Mosques Trustees v Mahmud (1967) Or the decision made on a point not argued before the applicant, making it impossible for him to respond to it; Ex Parte Bell London Properties Ltd (1949); and the charge/case must be disclosed in a reasonable time, to allow the person affected to prepare an appropriate response; i.e. there must be fair notice of the hearing: R v Thames Magistrates Ex Parte Polemis (1974).
4. The right to a fair hearing may be restricted by statute: that has been established: statute may permit the enforcement of a right ex parte. However, subsidiary legislation which sought to exclude the capacity of citizens to be heard was very strictly construed: R v Housing Appeal Tribunal (1911) – wherein it is held that procedural rules made by a minister cannot the limit the government agency’s appellate processes.

5. In cases involving non-statutory bodies, courts are particularly reluctant to interpret their rules as authorizing any form of expulsion without notice or opportunity to be heard; especially where said expulsion would deprive an individual of his livelihood. See Edwards v SOG AT (1971), St Johnstone Football Club v Scottish Football Association (1965) SLT, Enderby Sports Club v the Football Association (1971).
6. Notice: Is required for the procedure to be considered fair: Accra Hearts of Oak Sporting Club v. Ghana Football Association [1982-83] GLR 111
7. Anybody of persons having legal authority to determine questions affecting the rights of citizens, and having the duty to act judicially should give adequate notice to persons likely to be affected by their proceedings or decisions, so that they might be in a position to prepare their case, appear at the inquiry and make representations on their own behalf or through a representative.

8. Consequently, even though the G.F.A had the authority under section 9(2) of the bye-laws to transfer a club to another venue if it was satisfied that supporters and players were rowdy, before it could take such a decision, the committee was bound by the rules of natural justice to give a hearing to the plaintiffs. An act or decision consequential upon a contravention of the audi alteram partem rule might be restrained by prohibition or an injunction or set aside by certiorari.

Fairness; Exclusion of Notice

1. Where legislation mandates notice in respect of certain aspects of a public official’s decision, but imposes no duty of notice on aspects of the public official’s discretion, then the expresio unis maxim may be invoked to deny a right to notice and hearing in respect of the matters in which the statute is silent.
2. Often, the exclusion comes about as a result of inadvertence – and this rule should not be applied where it would lead to manifest inconsistency or injustice. Colquhoun v Brooks (1887).
3. Where an obligation to give notice and opportunity to be heard would obstruct the taking of prompt action, especially actions of a preventive or remedial manner. For example, the objectives of giving executive agencies heightened powers during war time or during natural disasters may be lost if prior notice of all their intentions were implied.
4. Summary actions for the maintenance of public peace and order, even in peace time, may also be acceptable; e.g. Venicoff, or Liversidge.

Principles of Equity

Historically, the law of equity began in the court of chancery which was set up because a fair and just remedy could not be given through common law as money compensation was not suitable and sometimes a well deserving plaintiff was denied because the writs where quite narrow and rigid. Courts were guided by the previous decisions and that’s how the twelve maxims were formulated. These maxims limit the granting of equitable remedies for those who have not acted in an equitable manner. The decisions of the court of chancery and common law were constantly conflicting. This rivalry was ended in The Earl of Oxford’s case (1615). In which case, the king stated ‘where common law and equity conflict equity should prevail.” The two courts are now unified and the same judges give decisions out of common law and equity.

Indispensably, it is worth stating that, the law relating to equity is largely built on precedent. The rules have been built upon by previous situations which they have dealt with. Although there has been a lot of disagreement about changing laws and adding to the law of equity, the rules that

have been accepted by proceeding judges became precedent and are now known as maxims and are used as guidelines by the court.

What is Equity then?

Equity has a dual meaning. The term has both a broad, popular meaning and a narrow, technical meaning. The broad-non technical meaning of ‘equity’ is fairness or what is just, that is justice according to natural justice or morality. Today, equity in the legal sense has developed along such a course that its rules cannot correctly be said to be necessarily those of natural justice. Hence, when in a broad popular sense, we describe a particular act or conduct as ‘equitable’ or ‘inequitable’, we would be making a moral rather than a legal judgment. Simply put, equity today is a settled body of rules of law which do not necessarily coincide with any notion of natural justice, fairness or morality. The narrow technical meaning of equity relates to the rules which were formerly administered by the Court of Chancery and which were designed to mitigate the rigors of the common law, together with the more modern developments (egs. promisory estoppel, restrictive covenants).

Brief Historical Origin

The emergence of the rules of equity is due to the deficiencies which manifested themselves in the course of development and the nature of the common law. In the course of time, the common law became rigid and stereotyped, such that quite often considerable injustice resulted from its inability to provide adequate remedies for even obvious wrongs. It was to cater for such deficiencies of the common law that the rules of equity were developed. It may therefore be said that the reasons for the development, growth and evolution of the doctrines of equity are to be found in the deficiencies of the common law. 

The Common Law

The common law legal system originated in England and spread to the other countries mainly through colonization.  In some countries, it was partly received, such as Muslim countries where it co-existed with Islamic laws. The Norman conquest of England in 1066 is generally considered to mark the beginning of the history of English law. Before that England was not united and did not have a central administration. There was the existence of diverse customary laws of German origin which were supplemented by royal statutes. This period was called the Anglo-Saxon period. The local courts were presided over by Bishops and Earls. After the battle of Hastings, William the conqueror introduced a strong feudal system and brought an end to tribal rule. Every piece of land was held immediately by the Crown. The English King had his own Royal Courts (Courts of common law) while the feudal Lords had local courts. This system paved the way for the common law. The Normans created a uniform and common law based on the unification of the diverse local customary laws. The King’s court eventually split into three: The Exchequer (dealt with financial matters), the Common Pleas (dealt with disputes about the rights in land) and the King’s Bench (serious criminal matters).

Difficult cases were tried in Westminster where the Royal Courts were centralized. When similar issues arose, the earlier solutions were applied. The law was thus common as between the royal courts (hence the name common law). This gave rise to judicial precedence (stare decisis). Civil action in common law were built around the writ system. To begin an action, the plaintiff had to obtain a writ. The writ was a written command issued by the Lord Chancellor in the King’s name ordering the defendant to appear in court and show cause why the plaintiff should not be given the relief he claims. If there was no writ to cover what the plaintiff claimed, then there was no remedy.

Problems with The Common Law

The Common law developed rapidly in the 13th century but by the 14th century it declined. This is because it had some defects.

First, in the thirteenth century, the writ system covered very parochial ground, and the complaint of each party had to conform almost impracticably to a specific writ. Hence failure to comply with the writ specifications was fatal to a person’s case. The power to invent new writ meant also the power to create new rights and duties. To preclude the recognition of new remedies, the provisions of Oxford were enacted in 1258 which provided that the Chancellor could not on his own initiative issue new writs. A new writ could only be issued if it had the command of the King and his Council. This problem was mitigated by the Statute of Westminster II in 1285 which gave the Chancery clerks the power to invent new writs only if the case was in a like with an existing writ. So if there existed a writ in a like case, falling under a similar law and requiring a like remedy, the existing writ could be varied to meet the requirements of the new case. This resulted in litigants not having a remedy either because there was in existence no writ to cover their case or the existing writ could not be conveniently amended to fit the particular facts and circumstances of the case.

Again, an error in the application of a writ can result in the action being lost. As indicated earlier, the writ had complex rules and because of that mistakes were inevitable. Writs were also quite expensive and discouraged potential litigants.

Second, the doctrine of stare decisis or judicial precedence insisted that a previous case even if wrongly decided remained a binding authority until overruled by a higher court unless it can be shown to have been decided per incuriam or can conveniently be distinguished. This made it impossible to depart from previous decisions to do justice in novel situations.

The third is the problem of defences and corruption. The personal power and influence of many defendants prevented plaintiffs, often by bribery and intimidation of juries, from getting justice before a common law court. Judges were also accused of bribery and corruption while the defendants could delay proceedings.

Fourthly, the common law remedies were inadequate. In that declarations and damages could be awarded whilst injunction could not be placed on individuals. Thus the common law remedies acted in rem and not in personam.

Fifthly, the common law did not recognize trust. Due to these defects, cases were brought to the king –in-council.

Sixthly, a mortgagor at common law forever lost his right of redemption of the property if he failed to redeem it at the precise date agreed on by the parties.

Maxims of Equity

Although because of its random origins, equity is not a complete system, there are certain general principles which govern the exercise of the equitable jurisdiction. These principles are usually referred to as the maxims of equity. The maxims peculiar to equity are as follows:  

1. Equity will not suffer a wrong to be without a remedy,
2. Equity follows the law,
3. He who seeks equity must do equity,
4. He who comes to equity must come with clean hands, 
5. Where the equities are equal the law prevails,
6. Where the equities are equal the first in time prevails,
7. Equity imputes an intention to fulfil an obligation, 
8. Equity regards as done that which ought to be done-Skyes v Abbbey [1995-9] 1 GLR
9. Equity is equality 

(10) Equity looks to the intent rather than the form 

       (11) Delay defeats equity and 

        (12) Equity acts in personam. 

The foregoing maxims consistently feed the various doctrines of equity. The result is a layer of fairness –based principles that may alternately be employed as a sword or a shield, depending on the peculiarities of each case.

Basis of Equitable Jurisdiction in Ghana

Under the 1992 Constitution, the basis of equity jurisdiction in this country today can be found in Article 11(2) which provides: “the common law of Ghana shall comprise the rules of law generally known as the common law, the rules generally known as the doctrines of equity and the rules of customary law, including those determined by the Superior Court of Judicature.” However, by the last quarter of the last century the basis for the application of the doctrines of equity could be found in section 14 of the Supreme Court Ordinance, 1876 which provided that the common law, the doctrines of equity and statutes of general application in England on 24 July 1874 shall be enforced within the court’s jurisdiction.  Further section 18 required law and equity to be administered concurrently and that in case of conflict the rules of equity shall prevail. Also, section 17(1) as consisting, in addition to the rules generally known as the doctrines of equity and of the rules of customary law.

Selected Cases to buttress Each of the 12 Maxims of Equity stated supra

Under Equity will not suffer a wrong to be without a remedy. Bank of Credit and Commerce International SA v. Ali. Facts: The respondet was a former employee of the appellant company who found out that the company had been operating dishonestly and in a corrupt manner, something he was ignorant about until the company was winding up. He sued for stigma damages claiming the company had breached the contract of employment signed between them. The stigma of association was said to handicap the employees in obtaining other employment. 

Held:  He was allowed to recover in the CA which was upheld by the House of Lords.

Tahiru v. Mireku and Another. Facts: The defendant agreed to sell his house to the plaintiff for 250,000 cedis. Payment was to be by instalments. In pursuance of the agreement, the plaintiff paid the sum of 125,000 which was recorded in receipts and payments table prepared in respect of the agreement. Later, when the plaintiff paid the balance to the defendant, he refused to accept it on the ground that the plaintiff had delayed payment and he had subsequently sold the house to the co-defendant for 500,000. The plaintiff sued claiming for specific performance of the agreement and damages for breach. The defendant denied the plaintiff’s claim and contended that time was of the essence of the agreement and that he gave the plaintiff notice before the resale. The co-defendant also contended on his part that since the transaction between the plaintiff and the defendant was for a disposition of an interest in land it should have been in writing for it to be enforceable.  Held –Per Ampiah J.A: Based on inter alia section 3(2) of the NRCD 175 the court held that the plaintiff made part – payment of the purchase price, and the defendant made use of the money to the detriment of the plaintiff. Accordingly, refusal to enforce the agreement would amount to fraud in the defendant. The nature of the agreement was such that it could be enforced by the grant of decree of specific performance. “The attitude adopted by equity is that it would be fraudulent for a defendant to take advantage of the absence of a signed memorandum if he stood by and allowed the plaintiff to alter his position for the worse by carrying out acts in performance of the contract.”

Under Equity follows the law. Amuzu v. Oklikah: Facts: The appellant agreed to purchase land from the defendant and payment was to be done in instalments, and the vendor was to complete an uncompleted building on the said land for value. The vendor failed to do so and the purchaser entered the land to complete the building. The whole transaction was reduced into writing. Upon completion, the vendor made a sale of the land and the completed house to another third party who got his title registered and sought to eject the purchaser from the house on grounds that he had not transferred any title documents to the purchaser and the purchaser sued. Held: It was held on appeal by the SC that the lower courts erred in deciding the case against the purchaser since findings of fraud on the vendor’s part were evident and that even if the appellant had failed to plead fraud of the vendor, equity does not permit a statute to be used as an instrument of fraud or inequitable conduct. Per Ampiah JSC “It is said that equity follows the law, but equity would not permit an Act to be used as an instrument of fraud! Any conduct that borders on fraudulent behavior should be frowned upon; it must not be encouraged.”

Djan v Owoo & Anor (1976) 2 GLR 401:  Facts: The first defendant agreed to sell his house to the plaintiff at the price of 25,000 cedis. The first defendant asked the plaintiff to make a deposit which he did by depositing 2,500 cedis and receipts were issued by the first defendant. The plaintiff having been informed by the first defendant that the house was mortgaged to the second defendant and on becoming aware of the indebtedness of the first defendant to the second defendant, which was the outcome of the property having been mortgaged to the second defendants, asked his bankers to issue two cheques one for the first defendant and another to the second defendant. These payments concluded the payment of the purchase price of 25,000 cedis. The payment to the second defendant, was to redeem the mortgaged property –the subject matter in dispute so as to enable the first defendant to execute a conveyance of it to him.

 

It was held per Edusei J that even though there is no memorandum in writing to satisfy section 2(a) of the Conveyancing Decree, NRCD 175, yet if there is an oral agreement followed by a sufficient act of part –performance the result in equity is in effect to exclude the operation of the statute. Therefore, the plaintiff having performed his side of the contract by making payment of the purchase price, it would be fraudulent and unconscionable on the defendant’s part to refuse to carry out his side of the contract as there has been sufficient performance by the plaintiff of the contract.

Under He who seeks equity must do equity. Lissenden v. CAV BOSCH. Facts: The defendant attempted to bar the workman plaintiff from appealing a compensation award on the ground that he had already accepted payment under it. The workman had obtained an award of compensation under the Workmen’s Compensation Act and had accepted weekly sums payable there under does not preclude an appeal by him on the ground that the compensation should have been of a larger sum than that awarded. Held:  The court held that the mere fact that the workman had obtained an award of compensation under the Workmen’s Compensation Act and had accepted weekly sums payable there under. Combe v. Combe. Facts: Mr. and Mrs. Combe were a married couple. Mr. Combe promised Mrs. Combe the plaintiff that he would pay her an annual maintenance. Their marriage eventually fell apart and they were divorced. Mr. Combe refused to pay any of the maintenance he had promised. Seven years later, Mrs. Combe brought an action against Mr. Combe to have the promise enforced.  There was no consideration in exchange for the promise and so no contract was formed. Instead, Mrs. Combe argued promisory estoppels as she had acted on the promise to her own detriment. Held on appeal that: The court could not find any consideration for the promise to pay maintenance. Lord Denning stated that the doctrine of consideration is too firmly fixed to be overthrow by a side-wind. It still remains a cardinal necessity of the formation of a contract and that the High Trees principle should not be stretched so far as to abolish the doctrine of consideration.

Also, while it may be true that the wife did forbear from suing the husband on the arrears for seven years, this forbearance was not at the request of the husband. It was also held that in the absence of proof of any request, express or implied, by the husband that the wife should forbear from applying to the court for maintenance, there was still no consideration for the husband’s promise (the wife had promised not to apply to court for maintenance). Appeal as allowed.

Under He who comes to equity must come with clean hands. Tinsley v. Milligan. Facts: The plaintiff and the defendant, formed a joint business venture to run lodging houses. Using funds generated by the business they purchased a house in which they lived together which was vested in the sole name of the plaintiff, but on the understanding that they were joint beneficial owners of the property. The purpose of that arrangement was to assist in the perpetration of frauds on the Department of Social Security and over a number of years the defendant, with the connivance of the plaintiff made false benefit claims on the DSS. The plaintiff did likewise. The money thus obtained helped the parties meet their bills but did not represent a substantial part of their income and contributed only in a small way to their acquisition of the equity in the house. Subsequently the defendant repented of the frauds and disclosed them to the DSS. A quarrel between the parties led to the plaintiff moving out, leaving the defendant in occupation. Thereafter the plaintiff gave the defendant notice to quit and in due course brought proceedings against the defendant claiming possession and asserting sole ownership of the property. The defendant counterclaimed for an order for sale and for a declaration that the property was held by the plaintiff on trust for the parties in equal shares. It was held on appeal  that a claimant to an interest in property , whether based on a legal or equitable title, was entitled to recover if he was not forced to plead or rely on an illegality, even though it transpired that the title on which he relied was acquired in the course of carrying though an illegal transaction; that , in the circumstances, by showing that she had contributed to the purchase price of the property and that there was a common understanding between the parties that they owned the property equally the defendant had established a resulting trust; that there was no necessity to prove the reason for the conveyance into the sole name of the plaintiff, which was irrelevant to the defendant’s claim and that since there was no evidence to rebut the presumption of a resulting trust the defendant was entitled to succeed on her counterclaim.

Under Where the equities are equal the law prevails. Jones v. Maynard. Facts: In 1941 a husband, who was about to go on service overseas, authorized his wife to draw on his bank account, which was thereafter operated as a joint account in that both parties drew on it for their requirements, while both paid their earnings and income into it. The husband, whose payments in were much the larger, from time to time withdrew money to pay for investments made in his own name. There was no settled agreement between the parties as to their rights in the account. In 1946, the wife left the husband, who shortly afterwards closed the account and drew out the balance. He obtained a decree of divorce against the wife in 1948. In an action brought by the wife against the husband, claiming half the balance of the account and half of the value of the investments, the husband contending that the balance and investments should be divided proportionately to the payments in made by the parties. Held: It was held that, the principle of equality ought to be applied, and that the wife was entitled to one half of the final balance and to one half of the value of the investments existing at the date when the account was closed. Diwel v. Farnes. Facts:  The defendant was the mistress of a deceased man. Whilst his mistress, the defendant contributed with the deceased in buying a house they were renting. The deceased later sold and proceeds from this sale was used to purchase another house. After the death of the man, the plaintiff, the widow and administratrix of the deceased claimed possession of the house. Held: The contributions of the defendant towards the purchase of the house ought to be taken into account and her beneficial interest ought to be one-half share.

Under Where the equities are equal the first in time prevails. Saunders v Vautier. Facts:  A testator had bequeathed 2,000 pounds worth of stock in the East India Company on trust for Vautier. According to the terms of the trust, it was to accumulate until V attained the age of 25. The stock’s dividends were to be accumulated along with the capital. Upon reaching the age of maturity (21 at the material time) he sought access to the capital and dividends immediately. Held: where a legacy is directed to accumulate for a certain period or where the payment is postponed, the legatee, if he has an absolute indefeasible interest in the legacy, is not bound to wait until the expiration of that period, but may require payment the moment he is competent to give valid discharge.  Gyimah & Brown v. Ntiri Williams. Facts: The first defendant made a sale of the same property, first to the plaintiffs-appellants, then to the claimant, at a time when he had no title to pass the property. However, he later acquired title to it and upon a dispute over the property, an action was instituted in the HC by the plaintiffs-appellants. Judgment was reversed by the CA on the grounds that plaintiffs had failed to enter into possession of theproperty. (presupposes the claimant entered first

Under Equity imputes an intention to fulfil an obligation. In Snowden v. Snowden.  Facts:  There was a covenant in the marriage settlement to pay money to trustees to be laid out in the purchase of lands in favour of the wife. The husband did not pay the money but purchased a freehold estate. It was held that the land was subject to the trusts of the marriage settlement. The Court emphasized that ‘where a man is bond to do an act, and he does what may enable him to do the act, it shall be taken to have been done by him with the view of doing that which he was bound to do’. This should however, be distinguished from a situation where a debtor owes a number of debts to the same creditor. Such a situation is regulated by the provisions of section 21 of the Limitation Decree, 1972. that section provides that, where there exists a number of debts and the debtor makes a payment to the creditor, and neither the debtor nor the creditor appropriates the sum paid to any particular debt or debts, unless there is a contrary intention expressly stated or implied from the circumstances, the payment shall be deemed to be appropriated pari passu in respect of each of all the debts which are not statute-barred. If all the debts are statute-barred, the payment shall be deemed to be appropriated pari passu in respect of all the statute-barred debts.  It is however, made clear in subsection 2 of the said section 21 that the statutory provision is not meant to reverse the rule of equity, which is that payment without appropriation is deemed to be in satisfaction of an existing valid obligation. 

Under Equity regards as done that which ought to be done. Walsh v. Lonsdale. Facts: Mr. Lonsdale leased his Mill to Mr. Walsh for 8 years. There was an agreement that Mr. Walsh will pay the lease in monthly instalments. Mr. Walsh entered into the /premises and started paying monthly rent. Mr. Lonsdale requested for payment in advance and levied distress. Mr. Walsh sued and said the agreement for the lease was not in writing and therefore void. Held:  That in applying the equitable principle, the court will regard as done that which ought to be done. And that an agreement for a lease is as a lease. And also if there is a conflict between equity and the common law, equity shall prevail. Re Liddell’s Settlement. Facts: Mrs. Liddel, who was a British subject and the wife of a British subject –both being ordinarily resident in England-took the infant children of the marriage to the United States and was keeping them there without the consent and against the will of her husband. Proceedings were thereupon taken in the Chancery Division to enforce the trusts of a settlement executed by the husband for the benefit of the children, who thereupon became wards of Court; and thereafter an application was made for an injunction restraining Mrs. Liddell form Keeping the infants out of the jurisdiction and requiring her to bring them to this country. Notice of this was duly served upon her, and eventually an order was made, directing her to bring the infants to England. Holding : The court held that the making of the order was for the benefit of the infants , who as wards of the Court should not be permanently resident abroad but ought to be brought this Country.

Under Equity is equality. In Rimmer v Rimmer. Facts:  A husband and wife after marriage bought a house in the name of the husband. The wife provided the deposit and the rest of the purchase price was borrowed on the security of a mortgage from a building society in the name of the husband. The principal of the mortgage money was repaid out of housekeeping money provided by the husband and the remaining by the wife out of her own earnings when the husband was on war service. The wife provided all the furniture for the home out of her own resources. They separated and the house was sold. An action was brought by the wife for a share of the proceeds. Held: that on the facts, it was not possible fairly to assess the separate beneficial interests of the husband and the wife by reference to the contributions which they had made. As such, the court concluded that it would be fair to share the proceeds among them equally. Quartey v Armah. Facts: The plaintiff and the defendant were married couples but they later divorced. During the subsistence of the marriage, the parties bought two houses. The husband was earning more than the wife. the houses were in the name of the wife and both of them made contributions to the purchase of the houses. After the separation, the wife sued for a declaration that she was the owner of the houses. The defendant counterclaimed that he was the beneficial owner of the houses since the plaintiff only held them in trust for him. Held: Where two or more persons purchased property and provided money in unequal shares and they are married couples, it is presumed that they intended to own the property jointly. From the case, snice there was no evidence of advancement or intention that the house was to be held by them in separate shares, they were to own it jointly.

Under Equity looks to the intent rather than the form. In Metropolitan Electric Supply Company Limited v. Ginder. Facts: The defendant signed a form of request to the plaintiff company to supply him with electric energy subject to inter alia the following terms: that the consumer agrees to take the whole of the electric energy required for the premises mentioned from the company for a period of not less than five years. Later, the defendant gave notice to the plaintiffs to disconnect his premises from their system, and made arrangements to get a supply from a rival company, on the ground, as he alleged, that the energy supplied by the plaintiffs was insufficient.  The plaintiffs filed a motion to restrain the defendant from taking the electric energy required for his licensed public –house, from any person, firm o, or company other than the plaintiffs, in breach of an alleged agreement. Held: that the request was in substance a contract not to take energy from any other person, and that it could be enforced by injunction; the contract was valid so far as it created rights between the parties for a term of years; Per Buckley J “I should think it was the safer and the better rule, if it should eventually be adopted by this Court, to look in all such cases to the substance and not to the form. If the substance of the agreement is such that it would be violated by doing the thing sought to be prevented, then the question will arise whether this is the Court to come to for a remedy. If it is, I cannot think that ought to depend on the use of a negative rather than an affirmative form of expression.”

 Under Delay defeats equity. In Adu v. Atta. Facts: The defendant had a son in Britain. To help him out of some financial difficulties she entered into a contract to sell her house to the plaintiffs for 80,000. The parties agreed that as the defendant was leaving for Britain to see her son, the plaintiffs would pay half the purchase price, i.e. 40,000 into her banking account. The defendant spent three months in Britain. On her return on 4 October 1979 she discovered that the plaintiffs had not paid the money into her account. After she had queried them about it they made an initial payment of 15,000 into the account on 30 October 1979. As the plaintiffs were experiencing difficulties in raising the money, they pleaded to be given time up to June 1980 to complete the payment. The parties therefore agreed that the balance of 65,000 should be paid in four instalments beginning in December 1979 and ending in June 1980 with one month’s grace between payments. the plaintiffs made no payments until 5 March 1980 when they paid another 15,000, leaving a balance of 50,000. They made no more payments until 2 September 1980 when they paid 30,000. And then on 5 September 1980, they made the final payment of 20,000 into the defendant’s account. They then contacted the defendant and informed her that they had completed the payment. But she told them that she had already sold the house to someone else. The plaintiffs therefore brought an action against the defendant for, inter alia, specific performance of the contract of sale. Held: Inter alia that the principles which had always guided the courts of equity to decree specific performance were that the plaintiff must have shown himself “ready, desirous, prompt and eager”, to perform his part of the contract. On the evidence contrary to the terms of their agreement, the plaintiffs failed to pay the 40,000 into the defendant’s account. And even after they had pleaded and been granted extension of time to pay they failed to do so. Not having demonstrated equity, they were not entitled to the equitable remedy of specific performance.

Under Equity acts in personam. In Penn v. Baltimore, specific performance was granted relating to the boundaries of land in America, although ordinarily the English court would not entertain an action relating to immovable property situate outside the jurisdiction. 

Exercise of Discretionary Power in Coterminous with Fairness

Under Article 296 of the Constitution, 1992, it is provided that, where in this Constitution or in any other law discretionary power is versed in any person or authority-

(a) that discretionary power shall be deemed to imply a duty to be fair and candid;

(b) the exercise of the discretionary power shall not be arbitrary, capricious or biased either by resentment, prejudice or personal dislike and shall be in accordance with due process of law; and

(c) where the person or authority is not a judge or other judicial officer, there shall be published by constitutional instrument or statutory instrument, regulations that are not inconsistent with the provisions of this Constitution or that other law to govern the exercise of the discretionary power.

Meaning of Discretionary Power

According to Prof. Harold Laski-the authority of the executive whether in matters of substance or procedure or both which it is free to exercise as it thinks fit. In the case law of Westminster Corporation v London NW Railway Co. [1905] AC 426, “discretion” means when it is said that something is to be done within the discretion of authorities, that something is to be done according to the rules of reason and justice, not according, to private opinion; or as stated in Rookes Case, ‘according to law and not humour’.

In the case of Agbemava, Tuah Yeboah, Bediatuo v Attorney-General [2018] GHASC 52.  Facts: On the 29th of June, 2016 three people namely, Godwin Ako Gunn, Alistair Nelson and Salifu Maase alias Mugabe, uttered certain statements on a talk show broadcast on an Accra radio station known as Montie FM, 100.1 FM, which were believed to be contemptuous of the Supreme Court, inter alia. On the 5th of July, 2016, those people appeared before this Court on a summons issued by the court for them to show cause as to why they should not be held liable for contempt of Court on the grounds of: 1. Scandalizing the Court. 2. Defying and lowering the authority of the Court. 3. Bringing the authority of the Court into disrepute. On the 18th of July, 2016 this Court convicted the three named contemnors on their own guilty pleas and on the 27th of July, 2016 sentenced them to four months’ imprisonment each and fines of GH₵ 10,000 each. Subsequent to the conviction and sentence, the convicts on the 1st August 2016 wrote a petition to His Excellency, The President of the Republic of Ghana, urging him to exercise the prerogative of mercy under article 72 of the 1992 Constitution in their favour. This petition was forwarded to the Council of State for its advice. By a letter dated 19th August 2016, the Council of State advised that the President could exercise the Prerogative of Mercy. By way of a circular issued by the then Minister of Communications on the 22nd August, 2016, the President announced that he had exercised the prerogative of mercy in favour of the three convicted persons, by remitting part of the jail term. The above-mentioned decision of the President provoked the current suits before this Court. Held: In the light of the discussions herein, it is held that the President’s power under article 72 of the Constitution extends to and covers convictions for criminal contempt. Consequently, the remission of sentence granted to the convicts cannot be questioned by this court as it followed due process. All the three writs are accordingly dismissed.

Fundamental Human Rights and Freedoms of the Ghanaian People

Constitutionally, under article 12 of the Constitution, 1992, the fundamental rights and freedoms of the Ghanaian people are enshrined or guaranteed and same is protected under this Constitution. In clause (1) The fundamental human rights and freedoms enshrined in this Chapter shall be respected and upheld by the Executive, Legislature and Judiciary and all other organs of government and its agencies and, where applicable to them, by all natural and legal persons in Ghana, and shall be enforceable by the Courts as provided for in this Constitution. (2) Every person in Ghana, whatever his race, place of origin, political opinion, colour, religion, creed or gender shall be entitled to the fundamental human rights and freedoms of the individual contained in this Chapter but subject to respect for the rights and freedoms of others and for the public interest.

Furthermore, under article 21 of the Constitution, 1992, the general fundamental freedoms of the Ghanaian people are inherently enshrined or guaranteed. Clause (1) All persons shall have the right to-

(a) freedom of speech and expression, which shall include freedom of the press and other media;

(b) freedom of thought, conscience and belief, which shall include academic freedom;

(c) freedom to practice any religion and to manifest such practice;

(d) freedom of assembly including freedom to take part in processions and demonstrations;

In Marian Awuni v WAEC [2003-2004] 1 SCGLR 471. Facts: The West African Examination Council (WAEC), cancelled the results of the appellant and 12 other students on the accusation that they had foreknowledge of the examination. The appellant asserts that the procedure used in investigating the claims made by WAEC infringed on their fundamental human rights. Held: The Supreme Court allowed the appeal and restored the judgement of the trial court on the grounds that WAEC breached appellants’ human rights and the rules of natural justice by not giving the candidates the opportunity to a fair hearing.

Applicability of the Rule of Natural Justice in Customary Usage

Due to the adoption of the standard of “natural justice” in the test for determining valid/applicable customary law, the expression has been used in a somewhat different sense by our courts; E.g. – Foli VIII v. The Republic [1968] GLR 768, Kingsley-Nyinah J, issue was w/n cremation as punishment for committing customary offence – Whether custom repugnant to natural justice and good conscience. Also in Re Kofi Antubam (Decd.); Quaico v. Fosu [1965] GLR 138, (Archer J – customary law must move with the times, should not be contra public policy and natural justice);

Tanor v. Akosua Koko [1974] 1 GLR 451 CA, Per Apaloo J.A. Counsel for the defendants complains that the customary sanction for the violation of the “dipo” custom is so harsh that we should deny its validity on the ground that it offended “natural justice, equity and good conscience.” The moral objective of that custom can hardly be faulted.  I believe it is to oblige our girls to maintain their purity of sexual life until they were married.  In present-day permissive society replete with talk of free love and women’s liberation, abstinence from premarital sex can only be an ideal. Whether it is an attainable one or not, I express no opinion.  There is something to be said for the argument that to banish a teenage girl from home and to compel her parents to disown and disinherit her for, what is after all, a girlish indiscretion, seems out of step with modern notions.

Relevance/Significance of Natural Justice in the Ghanaian Jurisprudence

In my analytical exercise, I would, however, try to analyze the relevance or significance of natural justice coterminous with the Ghanaian jurisprudence/judicial system or architecture. In fact, this will cover or include relevance or significance in election, education, sports, and immigration.

1. Election

In the case of Republic v High Court (Commercial Division) Accra, Ex parte: EC (Interested party; Mr. Paa Kwesi Nduom). Facts: The Electoral Commission took a decision to omit the interested party’s name from the presidential lists for the 2016 presidential and parliamentary elections without an opportunity of being heard nor one to amend the said anomaly. His Lordship, Justice Eric Kyei indicated that there was a breach of natural justice and same was affirmed by the Supreme Court subsequently. In fact, the decision taken by the EC was well grounded in law and had the authority vested it by law. However, such decision made was outside its jurisdiction or powers since it had no authority to take a decision adversely affecting the rights of a person. Significantly, it offended the principle of audi alteram partem rule of natural justice. The decision, being ultra vires, was subject to judicial review leading to it being quashed by the High Court and was subsequently affirmed by the Supreme Court. Therefore, fair hearing plays an important role in election processes in Ghana since issues involving disqualification affects adversely the rights guaranteed under the Constitution. 

2. Education

In Awuni v WAEC. Facts: The appellants were informed by WAEC through the headmaster of the school that all of their results had been cancelled due to examination irregularities while they were still awaiting their WASSCE results. Held: The court held that, WAEC violated the principles of natural justice because none of them (the appellants) had been accused of cheating on an exam, tried for it, or given the chance to defend themselves, audi alteram partem rule. This was held to be outside the jurisdiction of the Council since they did not give the plaintiffs an opportunity to be heard. As a result of the decision being made a subject of judicial review, WAEC was ordered to publish the results of the plaintiffs and same held null and void.

3. Sports

In Accra Hearts of Oak Sporting Club v Ghana Football Association. Facts: The plaintiff football club in a match with Dumas resulted in acts of vandalism and hooliganism leading to the destruction of assets at the Accra Sports Stadium. In the absence of evidence to the effect that the destruction was caused by the supporters of the plaintiff club, the defendant, single-handedly, in a press release barred the plaintiff club from playing its ‘home’ matches in Accra Sports Stadium until further notice and that its venue will be decided from time to time. The action was brought on the basis of an absence of hearing before taking the decision. Korsah J, on his note said, “…all judgements, which permit condemnation before behind the back of a man, when repugnant to this rule of natural justice cannot be enforced in Ghana”. Held: The court held that, although GFA had the authority to set up a committee under s. 9(2) of the Sports Decree, 1976 (SMCD, 54) to transfer teams to other venues if it satisfied that its supporters are rowdy, the committee is bound by the rules of natural justice to give a fair hearing to the plaintiffs. On this basis, defendant’s act was thus outside of its jurisdiction and making same a subject of judicial review by injuncting defendants act. Again, this case establishes the important role the rules of natural justice play in the football fraternity, even though the regulations of football are different, same is still subject to the principles of natural justice, which means that the principle is inevitable. 

3. Immigration

In the case of Attorney-General v Ryan, it was held, inter alia, that: “A decision that violates the fundamentals of natural justice is outside the purview of the decision-making authority, according to established legal precedent. In this case, the plaintiff/defendant was refused registration as a citizen of Bahamas by the minister concerned, without being given a fair hearing. The trial court held in his favour that in the light of Articles 5(2), (3) and (4) of the Bahamas Constitution. The Attorney-General appealed. The court held that, the minister’s act was a nullity in that Ryan was entitled to fair hearing. This decision, we see from the case, was one which clipped the rights of the applicant, Ryan. Secondly, the dictum bears out in the fact that, the said decision was taken by the minister (an authority) who acted based on a law, the Bahamas Nationality Act, 1973. Specifically, per sections 7 and 8 of the law supra, allowed the minister to use his discretion to determine whether or not a person was qualified to be registered. Thus, he had powers to determine on matters affecting the rights of an individual. Flowing from this, the decision offended the rules of natural justice that is, audi alteram partem. The facts bear testimony that the decision to reject Ryan’s application was taken without informing him of his wrong not to even contemplate giving him an opportunity to respond to the said wrongs based on which his application was rejected by the minister.

The court, on this issue, relied on Ridge v Baldwin to conclude that, the minister was bound, when taking such a decision to observe the rules of natural justice. Impliedly, the minister was duty-bound to state the reasons for the rejection of the application and allow Ryan an opportunity to respond to or rectify those wrongs. Failing to adhere to grant Ryan a fair hearing as a result of the minister’s reliance on the last paragraph of s. 7(e) of the Nationality Act, in the opinion of the court, was inconsistent with articles 5 (2) and (3) of the Constitution of Bahamas and thus, was ultra vires since it was outside the jurisdiction of the decision-making authority.

Recommendations

Based on empirical evidence (case laws), analysis, and discussions done so far with regards to natural justice, the author/columnist recommends the following for effective implementation:

1) Strict adherence to Rule of Law.

2) Without unnecessary interferences from both human and institutional, due process should be followed.

3) Fairness and reasonability should accompany our institutional actions.

4) Properly formulated standards must be followed in compliance with the law.

5) Rightly encouraging and enforcing Judicial Review in the judicial system.

6) Decision-making bodies must as a matter of policy defend the Constitution at all cost.

7) Political interference must be averted in the implementation of natural justice.

Conclusion

To conclude this article, I would like to reiterate the fact that, natural justice has been successfully incorporated into our body of laws in the judicial system in Ghana and same has thrived well as far as the fundamental human rights of the Ghanaian people are concerned. However, this assertion cannot be made without saying that, there are still some encumbrances to deal with in order to make headway in the judicial system. It is also, emphasized that, natural justice has had some relevance or significance in the Ghanaian jurisprudence in the areas of election, education, sports, immigration among others.

Justice Reuben Adusei (B.Sc. Economics & Business Administration)

A final year Student of Kaaf University College (LL. B)