Natural justice in Ghana case law.

It is settled law that an ex parte order cannot be used to determine a party's fate in either civil or criminal proceedings without affording the party a hearing.

REPUBLIC vs. THE REGISTRAR , HIGH COURT ADENTA EXPARTE ABEDNEGO TETTEH KWAOSURO [2026] SLR (SC) 44 · Supreme Court · 2026 · ADJEI JSC

Having so observed, whether the contemptuous conduct is brought to the attention of the court through a formal application or otherwise, there is one indispensable requirement which if violated would render the entire proceedings a nullity. That is, the evidence that, the alleged contemnor had first been ordered to appear and show cause if he is responsible for the alleged contemptuous conduct to enable him to defend himself. It should be noted that, in quasi criminal proceedings, an alleged contemnor is entitled to all the requirements of fair hearing as established by the common law courts, and entrenched in the 1992 Constitution. In particular, and within our constitutional tenets under Article 19 of the 1992 Constitution, there is the constitutional requirement that the process must be fair.

THE REPUBLIC vs. HIGH COURT (COMMERCIAL DIVISION) , EX PARTE: KEVIN EKOW TAYLOR AND ATTORNEY-GENERAL [2025] [2025] SLR (SC) 19 · Supreme Court · 2025 · TANKO AMADU JSC

However, in my view, in Ghana what clinches this issue [the audi altarem partem rule] is Article 296 of the 1992 Constitution. It is as follows: "296. Exercise of discretionary power Where in this Constitution or in any other law discretionary power is vested 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 Justice 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." The terms of this provision are mandatory and obviously require observance of the rules of natural justice, especially the audi alteram partem rule involved here. The rule has therefore been elevated to constitutional pedestal and its breach has the constitutional consequences laid down in Articles 1 and 2 of the Constitution, namely such breach voids the act in question.

SOFTTRIBE GHANA LIMITED VS. THE AUDITOR-GENERAL CIVIL APPEAL J4/54/2023 [2025] SLR (SC) 12 · Supreme Court · 2025 · PWAMANG JSC

The trial court deprived the defendants the opportunity to open their defence by closing their case for them, after discharging the plaintiff’s representative without recording whether the plaintiffs themselves had closed their case to warrant the calling of the defendants to open their defence that day. This is because the discharge of the plaintiff’s representative was in no way an indication that the plaintiffs had closed their case. 3. Further, there was nothing on record showing the defendants were called upon to open their defence by the court, so closing their case for them amounted to breaching the audi alteram partem principle and that this “not only occasioned a miscarriage of justice but also resulted in a nullity as the defendant was driven away from the judgment seat by the learned trial judge”

ADDO ATUAH & CO vs AFRICAN AUTOMOBILE LTD CIVIL APPEAL J4/55/2020 [2025] SLR (SC) 6 · Supreme Court · 2025 · LOVELACE-JOHNSON JSC

There was, with respect, another error committed by the learned trial judge. It is this that the complaint was made against the chairman of the board of directors who was not made a party in the instant application. He was not served with any court process. The chairman was not given an opportunity of being heard on the complaint made against him in the application.

PINAMANG vs. ABROKWA [1991] 2 GLR 384 [1991] SLR (CA) 1 · Court of Appeal · 1991 · LAMPTEY JA

The fact that the word relevancy was used to determine objections and admissibility at the pretrial stage under the Practice Direction is wholly unanswerable and does not require any input from any of the parties to resolve it, as it was similar to issues resolved by the Supreme Court in Duffour’s case. The Supreme Court in the case of Tindana (No.1) v Chief of Defence Staff & Attorney General (No.1) [2011] 2 SCGLR 724, where rule 6 (8) of the Supreme Court Rules, C.I 16 specifically provides that where the Court intends to rest its decision on a ground not set forth by the appellant in the notice of appeal, or on a matter not argued before it, the Court is required to afford the parties reasonable opportunity to be heard on that ground or matter without re-opening the appeal, the Supreme Court did not give the parties reasonable opportunity to be heard on the ground that, it was not raised in the notice of appeal but proceeded to determine the appeal and held that where an issue to be resolved is wholly unanswerable, the Court is not bound to take submissions from the parties. The ordinary bench of the Court rightly exercised its supervisory powers to ensure that the part of the Practice Direction which was inconsistent with the Evidence Act, and further violates the principles of fair hearing under the Constitution, was corrected without occasioning miscarriage to any of the parties.

THE REPUBLIC VRS. THE HIGH COURT (GENERAL JURISDICTION 10) ACCRA EX PARTE: 1. KWABENA ADU BOAHENE 2. ANGELA ADJEI BOATENG [2026] SLR (SC) 6 · Supreme Court · 2026 · ADJEI JSC

Bias takes different forms as there are many factors that may cause a decision-maker not to be impartial. She may have a pecuniary interest in the subject matter of the enquiry, or she may be related to one party or a witness by family or friendship, or may have dislike for one party or her witness, or may simply have a prejudiced opinion of the issue to be decided. In this case, the nature of bias we are concerned with is an allegation that the trial judge has a prejudiced mind about the case and cannot be expected to be impartial

THE REPUBLIC VRS. COURT OF APPEAL (CIVIL DIVISION) RESPONDENT ACCRA. EX-PARTE: KLENAM CONSTRUCTION LIMITED AND 3 ORS CIVIL MOTION NO: J5/10/2026 [2026] SLR (SC) 12 · Supreme Court · 2026 · KULENDI JSC

It has long been held that it is essential that in matters which come before the Courts justice should not only be done but should appear to have been done, and it is for that reason that it is well established that no case should be tried nor any proceedings be heard before any person exercising judicial functions who has any interest or bias in relation to those proceedings. Where the interest is of a pecuniary nature it has been held that the law raises a conclusive presumption of bias (R. v. Sunderland JJ). In R. v. Mayor & JJ. of Deal, ex parte Curling, Field J. said “No doubt it is a general principle of our law that magistrates or persons in a judicial position ought to be quite clear of any interest in a case brought before them” and added “the interest or bias which disqualified is an interest or bias in the particular case, something reasonably likely to bias or influence their minds in the particular case”.

KWAMI v. QUAYNOR [1959] GLR 269 [1959] SLR (CA) 8 · Court of Appeal · 1959 · VAN LARE AG CJ

Where a judge sensed that one or all parties to the litigation has lost confidence in the judge’s impartiality, the proper course for such a judge was to decline jurisdiction.

THE REPUBLIC VRS. COURT OF APPEAL (CIVIL DIVISION) RESPONDENT ACCRA. EX-PARTE: KLENAM CONSTRUCTION LIMITED AND 3 ORS CIVIL MOTION NO: J5/10/2026 [2026] SLR (SC) 12 · Supreme Court · 2026 · KULENDI JSC

As this court has previously held, even if a decision is correct on the law, but same was arrived at in breach of the rules of natural justice, that decision is susceptible to be quashed by certiorari where jurisdiction is properly invoked.

THE REPUBLIC vs. HIGH COURT (COMMERCIAL DIVISION) , EX PARTE: KEVIN EKOW TAYLOR AND ATTORNEY-GENERAL [2025] [2025] SLR (SC) 19 · Supreme Court · 2025 · TANKO AMADU JSC

The insistence on hearing the parties, in our thinking enables the judge who is invited to make the order to hear them before making pronouncements that are good and not limited to only the parties to the dispute. This requirement in our view is satisfied when the judge ensures that the parties to the dispute particularly the one against its pronouncement is sought is served to appear before the court. From Exhibit EAO2, there is no indication that the defendants were served and the learned trial judge appeared not to have received any evidence before acceding to the declaratory relief. The said lapse on the part of the court is an instance of breach of the fundamental right of hearing and deprives the court of jurisdiction in the matter.

THE REPUBLIC VRS THE HIGH COURT, ACCRA EX-PARTE: DR. ERNEST ASIEDU OSAFO, ALEX ABOAGYE (INTERESTED PARTY) CIVIL MOTION NO: J5/31/2011 [2011] SLR (SC) 1 · Supreme Court · 2011 · GBADEGBE JSC

To our minds, therefore, there existed a real likelihood of bias; having previously adjudicated conclusively over the dispute, which concerned the same issue and the same subject matter land, and having delivered judgment in favour of one of the parties, the execution of which precipitated the present suit, the said judge, quite clearly, had already formed and expressed a definitive position on the central issue now arising for determination on appeal.

THE REPUBLIC VRS. COURT OF APPEAL (CIVIL DIVISION) RESPONDENT ACCRA. EX-PARTE: KLENAM CONSTRUCTION LIMITED AND 3 ORS CIVIL MOTION NO: J5/10/2026 [2026] SLR (SC) 12 · Supreme Court · 2026 · KULENDI JSC

When the Chief Justice empanels a bench, he acts as an administrator and not as a judge. Accordingly, a principle of natural justice tailored to the requirements of proceedings cannot be relevant to that exercise. Rather, what is relevant is the Chief Justice’s implied duty to be fair and candid in the exercise of his discretionary power, as laid down in Article 296 of the Constitution.

FRANK AGYEI TWUM V. ATTORNEY-GENERAL WRIT NO. J1/7/2006 [2006] SLR (SC) 2 · Supreme Court · 2006 · DATE-BAH JSC

The principle laid down in the Akufo-Addo case was that where the common law principles of natural justice conflict with a mandatory statutory provision, the statutory, or, by implication, constitutional, provision prevails even if it results in non-compliance with the rules of natural justice. This position is justified by reference to the doctrine of necessity. In that case, Amissah JA, delivering the judgment of the Full Bench of the Court of Appeal, said (at p. 673): "In our judgment, where a statute clearly enjoins a person to perform an act, he has to do it even if its performance is incompatible with the strict rules of natural justice."

FRANK AGYEI TWUM V. ATTORNEY-GENERAL WRIT NO. J1/7/2006 [2006] SLR (SC) 2 · Supreme Court · 2006 · DATE-BAH JSC

Flowing from these authorities, it is clear that, in our jurisprudence, an allegation of judicial bias must rise above mere conjecture or speculation and be grounded in cogent and credible evidence. The party asserting bias must demonstrate the existence of a real interest in the subject matter, a direct or proximate connection to the parties, or some other substantive, and not remote or speculative, circumstance capable of giving rise to a real likelihood of bias.

THE REPUBLIC VRS. COURT OF APPEAL (CIVIL DIVISION) RESPONDENT ACCRA. EX-PARTE: KLENAM CONSTRUCTION LIMITED AND 3 ORS CIVIL MOTION NO: J5/10/2026 [2026] SLR (SC) 12 · Supreme Court · 2026 · KULENDI JSC

A complaint of bias must be proven satisfactorily based on positive and cogent evidence, which on the balance of probabilities would lead every reasonably prudent man to the conclusion that the existence or the likelihood of bias was more probable than its non-existence. Mere allegation of suspicion of bias will not do. This is because, if this court were to prohibit judges from hearing cases on mere unproven allegations and speculations alone, it would operate as a leeway for litigants and their lawyers to use such an opportunity to engage in forum-shopping and thus abuse the court processes and defeat the ends of justice

THE REPUBLIC VRS. COURT OF APPEAL (CIVIL DIVISION) RESPONDENT ACCRA. EX-PARTE: KLENAM CONSTRUCTION LIMITED AND 3 ORS CIVIL MOTION NO: J5/10/2026 [2026] SLR (SC) 12 · Supreme Court · 2026 · KULENDI JSC

To justify an allegation of interest or bias against a judicial officer, it must be established that he in fact has some interest in the subject-matter, or has such foreknowledge of the facts as to make it impossible for him to adjudicate upon the matter with an independent mind and without any inclination or bias toward one side or other in the dispute.

THE REPUBLIC VRS. COURT OF APPEAL (CIVIL DIVISION) RESPONDENT ACCRA. EX-PARTE: KLENAM CONSTRUCTION LIMITED AND 3 ORS CIVIL MOTION NO: J5/10/2026 [2026] SLR (SC) 12 · Supreme Court · 2026 · KULENDI JSC

In respect of the allegations of potential bias as alleged, the law is settled that, the test for bias in our jurisdiction has been one of a real likelihood of bias or actual bias.

HER LADYSHIP JUSTICE GERTRUDE V. THE ATTORNEY-GENERAL AND 4 ORS CIVIL MOTION NO. J8A113/2025 [2025] SLR (SC) 11 · Supreme Court · 2025 · TANKO AMADU JSC

A charge of bias or real likelihood of bias must be satisfactorily proved on balance of probabilities by the person alleging same. Whether there existed a real likelihood of bias or apparent bias was an issue of fact determinable on a case-to-case basis. Furthermore, where a judge had foreknowledge of the very issues of fact to be determined, that would disqualify him from sitting

THE REPUBLIC vs. HIGH COURT (GENERAL JURISDICTION 8), ACCRA EX PARTE DANIEL OFORI ECOBANK GHANA LIMITED CIVIL MOTION NO: J5/93/2024 [2025] SLR (SC) 1 · Supreme Court · 2025 · ASIEDU JSC

The opinion which I have formed on the authorities is that, in order successfully to impugn the decision of a judge or justices a real likelihood of bias must be established. In my view, it would not be enough to show only a bare possibility, or a mere suspicion of bias. There must be substantial grounds on which ordinary right-thinking persons could reasonably conclude that the judge or justices might well have had a bias in reaching his or their conclusions in the particular case.

KWAMI v. QUAYNOR [1959] GLR 269 [1959] SLR (CA) 8 · Court of Appeal · 1959 · VAN LARE AG CJ