HER LADYSHIP JUSTICE SEDINAM AWO KWADAM (MRS.)*
2nd January, 2026.
ABSTRACT
A sophisticated and troubling procedural phenomenon is metastasizing within Ghana’s civil justice system: the strategic exploitation of the audi alteram partem rule to invalidate lawfully obtained judgments. This paper identifies a pervasive pattern wherein litigants, typically defendants who have been duly served, whether by personal service, through counsel on record, or by substituted service under Order 7 rule 6 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47), engage in a calculated refusal to participate in proceedings. Upon the entry of an ex parte judgment against them, these litigants opportunistically resurrect the principle of natural justice, invoking audi alteram partem as a post-judgment weapon to set aside or quash the outcome. This paper contends that such conduct constitutes a deliberate perversion of procedural fairness, transmuting a foundational shield of justice into a sword of evasion and systemic subversion. It argues that the indulgence of these claims by Ghana’s superior courts, exercising their supervisory jurisdiction, has inadvertently created a jurisprudential incentive for strategic default, thereby corroding the principle of finality. The paper situates this domestic procedural dilemma within the analogous international law doctrine of denial of justice, positing that a judicial system fails in its duty not when it proceeds against an absent but duly served party, but when it allows that party to weaponize their own default. In response, the paper proposes a suite of coherent doctrinal and procedural correctives: firstly, the imposition of a heightened evidentiary threshold for post-judgment claims grounded in natural justice; secondly, a more stringent and principled application of the “clean hands” doctrine; thirdly, the judicial recognition of an implied waiver of procedural rights in cases of deliberate default; and finally, the deployment of punitive cost sanctions to deter such abuse. The paper culminates in a clarion call for conditioning access to extraordinary remedies on a litigant’s demonstration of good faith and genuine trial participation, thereby preserving the sanctity of procedural fairness while staunchly safeguarding judicial finality and the systemic integrity of the adjudicative process.
- INTRODUCTION: THE CORRUPTION OF PROCEDURAL FAIRNESS IN GHANA’S CIVIL JUSTICE SYSTEM
Ghana’s adversarial civil procedure, a venerable inheritance of the common law tradition, is philosophically anchored in two cardinal and interdependent ideals: party autonomy and procedural fairness.[1] The system operates on the presumption that litigants, as rational actors, will actively prosecute or defend their claims, ensuring that the material truth emerges from the crucible of a contested hearing.[2] However, an insidious and emergent trend within Ghana’s civil courts is systematically subverting this foundational model, reflecting not a deficit in legal knowledge but a calculated and sophisticated procedural stratagem.
A discernible cohort of defendants, frequently legally represented, deliberately abstain from proceedings despite having been unequivocally notified under the comprehensive framework of C.I. 47.[3] Once judgment is rendered against them ex parte, these litigants resurface to mount a collateral attack on the outcome, invoking the audi alteram partem rule as a talismanic incantation. In a disquieting number of instances, the alleged denial of a hearing stems not from any judicial error or systemic failure, but from the litigant’s own calculated and strategic refusal to participate.
This paper undertakes a critical examination of this abuse of the rule of natural justice. It probes how superior courts, in their well-intentioned but sometimes insufficiently rigorous application of their supervisory jurisdiction, have at times indulged such applications, inadvertently creating a jurisprudential incentive for strategic non-participation. The paper undertakes a critical analysis of the distinction between the opportunity to be heard and actual participation, arguing that a failure to take up a fair and lawfully extended opportunity should not later be permitted to be disguised as a procedural injustice.
Furthermore, the paper anatomizes a particularly pernicious dimension of this abuse: its evolution into a form of ‘procedural espionage’.[4] This occurs when a party’s strategic default functions as a tactical intelligence-gathering operation. The diligent plaintiff is compelled to fully disclose its case to a silent, absent opponent, who then uses the intelligence thus gathered to mount a strategically advantaged post-judgment assault.[5] This procedural espionage corrupts the equality of arms and represents a grave subversion of the adversarial process itself.
This paper contends that unless this strategic exploitation of natural justice is decisively addressed through a recalibration of judicial philosophy and procedural rules, Ghana’s procedural safeguards risk being perversely transformed from instruments guaranteeing fairness into veritable loopholes for abuse. It concludes by proposing a suite of coherent judicial and legislative reforms designed to preserve the constitutional values of procedural fairness and the finality of litigation.
- THE GHANAIAN PROCEDURAL DILEMMA THROUGH THE PRISM OF DENIAL OF JUSTICE
To fully apprehend the gravity of the situation, it is imperative to situate the Ghanaian procedural dilemma within a broader jurisprudential framework. The international law doctrine of denial of justice, though traditionally concerned with a state’s treatment of aliens, offers a powerful analogical lens through which to assess the responsibility of a domestic judiciary to prevent its own procedures from being exploited to perpetrate injustice.[6]
The modern understanding of denial of justice has undergone a profound transformation, shifting focus from substantive outcomes to procedural integrity. The duty of a state is not only to guarantee a favourable result for litigants but to maintain a system in which fairness is possible and effectively safeguarded.[7] As leading scholarship affirms, ‘international law does not impose a duty on states to treat foreigners fairly at every step of the legal process. The duty is to create and maintain a system of justice which ensures that unfairness to foreigners either does not happen, or is corrected.’[8] This duty is systemic in nature and must apply domestically.
The Ghanaian scenario presents a perverse inversion of this doctrine. The Ghanaian legal system, through C.I. 47, provides a comprehensive and fair mechanism for notifying parties and affording them an opportunity to be heard.[9] Lawful service, in any of its recognized forms, is the system’s fulfilment of this procedural duty.[10] The litigant’s strategic refusal to participate, therefore, is a deliberate choice, not a systemic failure.[11] When a Ghanaian court subsequently grants relief to such a litigant by setting aside a judgment or granting certiorari, it is not correcting a denial of justice; on the contrary, it is arguably becoming complicit in perpetrating one against the successful party.[12] The diligent litigant who complied with all procedural rules and secured a judgment after a fair hearing sees the fruit of their victory nullified by a process that rewards bad faith.[13]
This reasoning finds resonance in the Supreme Court’s caution in Republic v High Court (Fast Track Division), Accra; Ex Parte CHRAJ, where the Court held that supervisory jurisdiction ‘cannot be manipulated to gain an unfair tactical advantage or to revive matters that have been validly determined through a regular process.’[14] The state’s constitutional duty is to provide a fair system, not to guarantee a de facto rehearing for those who consciously spurn it.[15]
III. SUPERVISORY JURISDICTION: CONSTITUTIONAL FOUNDATIONS AND THE ATTRIBUTION OF JUDICIAL CONDUCT
- The Proper Scope and Discretionary Nature of Supervisory Remedies
Supervisory jurisdiction in Ghana is a formidable power derived directly from the supreme law of the land. Article 132 of the 1992 Constitution provides that the High Court shall have supervisory jurisdiction over all lower courts and tribunals, while Article 137 vests analogous powers in the Supreme Court over all other courts.[16] These powers include the issuance of the prerogative writs, most notably certiorari, to correct jurisdictional excesses, violations of the rules of natural justice, or errors of law on the face of the record.[17]
Traditionally, certiorari has served as a vital constitutional safeguard. However, it is a discretionary remedy, not an absolute right, designed to cure fundamental defects rather than to serve as a substitute for an appeal on the merits of a case. The courts retain an inherent discretion to deny certiorari even where a technical breach is established, especially where granting the remedy would defeat the ends of justice or sanction abusive conduct. This principle was forcefully reaffirmed in Republic v High Court (Fast Track Division), Accra; Ex Parte CHRAJ, where the Supreme Court emphasized that an applicant must approach the court with clean hands and that supervisory jurisdiction cannot be used to subvert substantive justice.[18] The contemporary abuse of the audi alteram partem rule of natural justice challenges these constitutional principles.
Where a litigant, having been duly served, deliberately absents themselves and later seeks a certiorari, the court must exercise its discretion to refuse relief. To do otherwise would be to sanction procedural manipulation under the guise of fairness, thereby undermining the very integrity the jurisdiction is meant to protect.
- Judicial Acts as State Conduct: Systemic Implications
The conduct of national courts is unequivocally attributable to the state. This principle carries a critical implication for the present analysis. When a superior court in Ghana exercises its supervisory jurisdiction to quash a lower court’s judgment based on a spurious or strategically manufactured claim of a violation of a rule of natural justice, the state, through its judicial organ, is itself engaging in an act. If that act results in the unwarranted nullification of a final and regular judgment, it could be argued that the state is responsible for a systemic failure to correct a fundamental unfairness vis-à-vis the original successful party.[19]
This institutional perspective underscores the judiciary’s constitutional duty under Article 125(3) not merely to correct errors but to maintain systemic coherence. The power to issue prerogative writs must be wielded as an act of judicial stewardship, one that protects the sanctity of the process as much as the rights of the parties, ensuring that fairness does not degenerate into indulgence.
- THE AUDI ALTERAM PARTEM PARADOX: RIGHT, OPPORTUNITY, OR TACTICAL WAIVER?
The audi alteram partem rule stands as one of the most enduring pillars of natural justice, embodying the fundamental principle that no person should be condemned without first being afforded a meaningful opportunity to present their case.[20] Ghanaian jurisprudence has consistently and rightly affirmed this principle as central to the constitutional guarantee of due process under Article 19 of the 1992 Constitution.[21]
Yet, a sophisticated understanding of the right reveals a critical distinction: the right to be heard does not logically entail that a litigant must be physically present in court, nor does it impose upon the judge a positive obligation to compel participation from a recalcitrant party. The determinative jurisprudential question is not whether the party was in fact heard, but whether they were duly afforded a fair and legally sufficient opportunity to be heard.
The Supreme Court of Ghana has drawn this distinction with admirable clarity. In Republic v Court of Appeal, Accra; Ex Parte Ghana Chartered Institute of Bankers, the Court held that where a litigant is duly notified and afforded sufficient opportunity to appear but fails to do so without just cause, the audi alteram partem rule is not violated.[22] Similarly, in Addo v Addo, the Court underscored the principle that a litigant who deliberately ‘sleeps on their rights’ cannot subsequently invoke natural justice as a procedural deus ex machina to undo the consequences of their own default.[23]
This reasoning aligns with the equitable ‘clean hands’ doctrine. In Republic v High Court (Human Rights Division), Accra; Ex parte Josephine Akita (Mancell–Egala and A-G, Interested Parties), the Court articulated the proposition with unassailable logic:
“A person who has been given the opportunity to be heard but deliberately spurned that opportunity to satisfy his own decision to boycott proceedings cannot later complain that the proceedings have been proceeded without hearing him and then plead in aid the audi alteram partem rule.”[24]
Similarly, in Republic v High Court (Fast Track Division), Ex parte State Housing Co. Ltd. (No. 2), Wood CJ (as she then was) captured the essence of the matter with succinct force:
“A party who disables himself or herself from being heard in any proceedings cannot later turn around and accuse an adjudicator of having breached the rules of natural justice.”[25]
This jurisprudential thread affirms that the law safeguards a fair opportunity to be heard, not the right to weaponize one’s own refusal to participate. A litigant’s deliberate default constitutes a tactical waiver of their procedural rights. To hold otherwise would convert the audi alteram partem rule of natural justice from a shield against arbitrariness into a sword for delay and tactical evasion.
- SERVICE, WAIVER, AND THE EROSION OF JUDICIAL FINALITY
- The Legal and Constitutional Sufficiency of Lawful Service
Proper service of court processes is the indispensable sine qua non of civil adjudication in Ghana.[26] It is the foundational mechanism by which the courts ensure strict compliance with the constitutional guarantee of a fair hearing under Article 19.[27] Service may be effected by personal delivery, by service on counsel of record, or, where such direct methods prove impracticable, by substituted service under Order 7 rule 6 of C.I. 47.[28]
Substituted service occupies a particularly significant place within this framework. It is a judicial response to the reality of litigant evasion, and once duly authorized and executed, it carries the same legal consequences and constitutional weight as personal service.[29] The Supreme Court in Republic v High Court, Kumasi; Ex Parte Fosuhene authoritatively affirmed this principle, holding that substituted service “must be treated as valid notice to the party concerned” and that a litigant cannot later, in bad faith, disclaim knowledge of proceedings when the official record reflects lawful execution.[30]
This body of jurisprudence underscores a fundamental doctrinal point: lawful service, in whatever form authorized by law, creates a reciprocal and non-delegable duty of diligence on the part of the litigant.[31] Once constitutionally adequate notice is given, the state’s obligation to ensure procedural fairness is discharged. The litigant’s subsequent refusal to engage cannot later be alchemized into a breach of the audi alteram partem rule of natural justice.
- Strategic Disengagement and the Misapplication of Supervisory Jurisdiction
The alarming pattern where litigants, having been duly served, willfully refuse to appear, only to re-emerge post-judgment to seek a certiorari or an order to set aside the judgment, invoking the audi alteram partem rule[32] is not only worrying but clearly an irresponsible strategy to compromise the finality of judgments. Disturbingly, courts have occasionally granted relief without a sufficiently rigorous interrogation of the litigant’s own deliberate disengagement.[33]
This judicial leniency, though often clothed in the noble language of fairness, risks creating a dangerous precedent that incentivizes bad-faith litigation. Such decisions undermine the authority of trial courts and dangerously destabilize the principle that proper service creates a binding obligation to respond.[34] When a validly executed service is later treated as inconclusive in post-judgment proceedings, the integrity of final judgments is rendered precarious.[35]
The discretionary character of certiorari provides the superior courts with a necessary gatekeeping function. As the Court of Appeal wisely cautioned in Republic v Circuit Tribunal, Accra; Ex parte Nartey, the principles of natural justice should not be exploited to destabilize lawfully constituted processes or to reward procedural indiscipline.[36] To allow a party who, despite proper notification, deliberately declines participation to successfully invoke audi alteram partem is not to vindicate justice; it is to sabotage it.
- DOCTRINAL CORRECTIVES: FORGING A COHERENT JURISPRUDENTIAL RESPONSE
To counter this procedural distortion, a doctrinal reorientation is urgently required. The Ghanaian judiciary must articulate and consistently apply principled standards to distinguish genuine breaches of fair hearing from abusive litigation tactics.
Firstly, Reasserting the Conceptual Limits of the Audi Alteram Partem rule: The courts must firmly reaffirm that the audi alteram partem rule guarantees an opportunity to be heard, not an assurance of actual participation.[37] The appropriate legal test is not whether a litigant was in fact heard, but whether they were afforded a genuine and legally sufficient opportunity to be heard.[38] Once this threshold is met, the constitutional obligation of the court is discharged.
Secondly, the Discretionary Nature of Certiorari and the “Clean Hands” Doctrine: The grant of certiorari is a discretionary remedy. Courts must robustly exercise this discretion to deny relief to applicants whose own conduct offends the principles of equity.[39] The “clean hands” doctrine must be applied with rigour to bar litigants who have strategically defaulted from accessing equitable, post-judgment remedies.[40]
Thirdly, Judicial Recognition of Implied Waiver: A deliberate and informed choice to ignore proceedings after lawful service should be construed as an implied waiver of the right to participate.[41] This principle, inherent in the structure of procedural fairness, must be explicitly recognized and enforced to prevent litigants from benefiting from their own procedural bad faith.
And finally, the Imposition of Punitive Cost Sanctions: To deter such abuse, courts should proactively invoke their powers under Order 81 of C.I. 47 to award punitive costs against applicants who mount frivolous or abusive post-judgment applications grounded in their own strategic default.[42]
CONCLUSION
The exploitation of the audi alteram partem rule by litigants who deliberately absent themselves despite proper service is a significant and corrosive procedural distortion. While the right to be heard is a cornerstone of natural justice, it is not an unfettered license for procedural ambush or a post hoc device for frustrating validly obtained judgments.
The Ghanaian judiciary must evolve and consolidate coherent jurisprudential standards to clearly and consistently distinguish genuine breaches of fair hearing from abusive litigation tactics. A doctrinal reorientation is urgently required to ensure that post-judgment applications are not transformed into procedural tools for reversing judgments obtained through fair and lawful proceedings merely because one party, as a matter of strategy, refused to engage when duly notified. The rule of law, properly conceived, entails correlative obligations of discipline, good faith, and respect for finality.[43]
To allow tactical non-participation to invalidate final and regular decisions would be to erode judicial authority and fundamentally undermine the legal certainty upon which a modern society depends.[44] The courts must therefore protect the integrity of their own processes by firmly rejecting attempts to weaponize natural justice to undo what litigants had every opportunity to contest but deliberately chose not to.
Ultimately, a responsible constitutional and procedural culture must resolutely reject the transformation of natural justice into a Trojan horse for opportunistic litigation. The setting aside of judgments and the prerogative remedy of certiorari must remain extraordinary safeguards for true miscarriages of justice, not jurisprudential havens for those who deliberately evade the trial process only to reappear when judgment is finally rendered against them. The integrity of Ghana’s civil justice system depends upon this crucial distinction.
So, to my dearest Brothers and Sisters on the Bench, let this be a clarion call, from my study to the esteemed benches of our courts: the weaponization of the audi alteram partem rule is a menace that does not discriminate. It is a shadow that can fall upon any litigant, undoing their justly procured judgment in the face of blatant strategic non-participation, and indeed, upon the court itself, should its own judgment be assailed by such a stratagem. For if we permit this sacred principle to be so debased, no judgment, no matter how meticulously reached, can be safe from the corrosive acid of procedural bad faith. This is not a distant threat, but a clear and present danger to the entire edifice of our civil justice. Let it be known, however, that where a litigant’s non-participation is truly beyond their control, the court must, with swift and earnest resolve, wield the mighty power of certiorari to ensure a hearing is had. This is the balance of true justice.
And permit me to say with unwavering conviction: To us, the Judges of this land upon whom this great burden rests, we are the torchbearers. We are the custodians in whose bosom justice must not only emanate but permanently reside. It is our solemn and unending duty to ensure that true justice is done, and that it is not perverted by those who would take a shield moulded for the protection of the weak and forge it into a sword for the convenience of the cunning. To allow a litigant, who has been given every fair opportunity, to then exploit the law’s deepest and most sacred values to undo a validly procured judgment, is to commit a great injustice in the very name of justice itself. It is a defeat, most tragically, snatched from the jaws of justice.
Therefore, we must now arm ourselves with resolve. We must meet this sophistry with steel-clad principle. We must declare and depict through our work what the true position of the law is: that the rules of natural justice were designed to be a bulwark against tyranny, not a hunting license for the unscrupulous. Let us stride forward, without flinching, and reforge our procedures so that finality is safeguarded, diligence is rewarded, and this insidious strategy of deliberate default is recognized for what it is: an affront to the court, a betrayal of the adversary, and an injustice that we should, from this day forth, no longer entertain.
* Justice of the High Court, Republic of Ghana; Adjunct Lecturer, International Criminal Law and Justice (ICL&J), Ghana Institute of Management and Public Administration (GIMPA); LL.M.(Distinction) International Criminal Law and Justice (ICL&J) International Criminal Court (ICC) Elective, Ghana Institute of Management and Public Administration (GIMPA) (2025); Valedictorian, 2025 Masters Cohort (GIMPA); Participant, ICC Summer School, Utrecht University (2025); Barrister-at-Law (BL), Ghana School of Law (2012); Best Student, Law of Evidence (2012 Call to the Bar); LLB, Kwame Nkrumah University of Science and Technology (KNUST); Achimota School (2002).
The views expressed are personal and do not reflect the position of any institution.
[1] See generally, the High Court (Civil Procedure) Rules, 2004 (C.I. 47), which structures this adversarial framework.
[2] This presumption is foundational to the adversarial model. See Republic v High Court, Accra; Ex Parte IFDC [2003–2004] SCGLR 348.
[3] Under Order 7 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47), service of process may be effected personally, by registered post, or on an authorized agent, depending on the party’s nature and location. Where personal service cannot be conveniently effected, the court may order substituted service under Order 7, rule 5(1), by delivery to an agent, posting at the residence, or publication, each deemed as effective notice once duly ordered. Proper service, whether actual or substituted, is a jurisdictional prerequisite: Republic v High Court, Accra; Ex parte Allgate Co Ltd (Amalgamated Bank of Ghana Ltd, Interested Party) [2007–2008] SCGLR 1041. See also, Republic v High Court, Kumasi; Ex Parte Fosuhene [1989-90] SCGLR 690.
[4] This concept of ‘procedural espionage’ describes the tactical advantage gained by a defaulting party.
[5] This subverts the principle of equality of arms, a component of the fair trial right under Article 19 of the 1992 Constitution.
[6] For a foundational discussion, see Jan Paulsson, Denial of Justice in International Law (2005).
[7] Paulsson (n 6) 7-8.
[8] Ibid, quoting Ambatielos Claim (Greece v United Kingdom) (1956) XII RIAA 83, 120.
[9] C.I. 47, Order 7.
[10] Republic v High Court, Kumasi; Ex Parte Fosuhene.
[11] Ibid.
[12] This argument draws an analogy to the international law principle that judicial acts are attributable to the state.
[13] Paulsson (n 6) 31.
[14] Republic v High Court (Fast Track Division), Accra; Ex Parte CHRAJ 325.
[15] Constitution of the Republic of Ghana, 1992, art 19.
[16] Constitution of the Republic of Ghana, 1992, arts 132, 137.
[17] Courts Act, 1993 (Act 459), s 16.
[18] Republic v High Court (Fast Track Division), Accra; Ex Parte CHRAJ (n 7) 325.
[19] This draws on the principle of state responsibility for judicial acts under international law.
[20] Constitution of the Republic of Ghana, 1992, art 19(1), (11) & (13).
[21] See, for example, Republic v Court of Appeal, Accra; Ex Parte Ghana Chartered Institute of Bankers [2011] GHASC 44.
[22] Republic v Court of Appeal, Accra; Ex Parte Ghana Chartered Institute of Bankers (n 29).
[23] Addo v Addo (n 6) 382.
[24] Republic v High Court (Human Rights Division), Accra; Ex parte Josephine Akita (n 5) 383–384.
[25] Republic v High Court (Fast Track Division), Ex parte State Housing Co. Ltd. (No. 2) [2009] SCGLR 189, 190.
[26] Republic v High Court, Accra; Ex Parte Aligate Co. Ltd. (n 11) 1048.
[27] Constitution of the Republic of Ghana, 1992, art 19.
[28] C.I. 47, Order 7 r 6.
[29] Republic v High Court, Kumasi; Ex Parte Fosuhene (n 3) 695.
[30] Ibid 698.
[31] This reciprocal duty is implicit in the structure of C.I. 47 and the constitutional right to a hearing.
[32] See the trend discussed in Republic v High Court, Accra (Criminal Division); Ex Parte Benjamin Akuffo Darko [2024] GHASC 2.
[33] Ibid.
[34] Republic v High Court (Fast Track Division), Accra; Ex Parte CHRAJ (n 7).
[35] Amponsah v Yeboah [2019] DLSC 3217.
[36] Republic v Circuit Tribunal, Accra; Ex parte Nartey [1991] 2 GLR 447, 450.
[37] Republic v High Court, Tamale; Ex parte Yakubu (n 25) 59.
[38] Republic v High Court (Human Rights Division), Accra; Ex parte Josephine Akita (n 5) 383.
[39] Republic v High Court (Fast Track Division), Accra; Ex Parte CHRAJ (n 7) 325.
[40] Ibid.
[41] This aligns with the principle of waiver recognized in the jurisprudence of the European Court of Human Rights, which finds persuasive analogical value in this context.
[42] C.I. 47, Order 81 provides for the general power to award costs.
[43] Republic v High Court (Fast Track Division), Accra; Ex Parte CHRAJ (n 7).
[44] Amponsah v Yeboah (n 45).
