MBOWURA JOSHUA

NATURAL JUSTICE
The main purpose of the rules of natural justice is to ensure that a fair procedure has been
established and followed by the decision. The rule mainly requires that the decision maker
approaches the decision-making process with fairness. As was espoused by Lord Steyn in
Lloyd v McMahon [1987] AC 625, “the rules of natural justice are not engraved on tablets
of stone”.
In English law or at common law, the audi alteram partem rule is one of the two rules
embedded in the concept of natural justice. The second rule is that an adjudicator must be
disinterested and unbiased in any case before him (nemo judex in causa sua). In other words,
no man must be a judge in his cause. The two rules of natural justice perform the function of
the concept of procedural fairness in the American Constitution.
In the case of Ridge v. Baldwin [1963] 2 All ER 66, Lord Hudson identified three features
of natural justice when he stated at page 114 that: “No one, I think disputes that three features
of natural justice stand out – (i) the right to be heard by an unbiased tribunal, (ii) the right to
have notice of charges of misconduct and (iii) the right to be heard in answer to the charges”.
In Halsbury’s Laws of England (3rd ed.), Vol.30, p. 718, para. 1368 these requirements
were listed as follows: “[a] the parties to the proceedings shall be duly notified when and
where they may be heard and shall be given full opportunity of stating their views, [b] the
matters in dispute being decided honestly, impartially and without bias [c] by a tribunal no
member of which has any interest, either pecuniary or otherwise, in the matter.”
A poignant illustration of this is the case of Republic v. State Fishing Corporation
Commission of Enquiry (Chairman); Ex Parte Bannerman [1967] GLR 536 where
Edusei J held that “It is well established that the essential requirements of natural justice at
least include that before someone is condemned he is to have an opportunity of defending
himself, and in order that he may do so, he is to be made aware of the charges or allegations
or suggestions which he has to meet: see Kanda v. Government of the Federation of Malaya
[1962] A.C. 322, P.C.”

In the case of Aboagye v Ghana Commercial Bank Ltd [2001-2002] SCGLR 797, the
Supreme Court did not mince words at all when it stated the importance of Natural Justice as
follows “The application of the rules of natural justice is so fundamental to fair procedure and
even includes the rule against bias since if only one party in a dispute is heard, the other
would be seriously biased and so the final decision would be useless, that other party would
have been unjustly condemned without hearing his side of the case. In such a case it cannot
be said that there had been fair administration of justice when in fact in such a case there
would have been no justice at all.”
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Thus, the rules of natural justice are meant to provide justice through procedural fairness and
to guarantee fair trials, unbiased and transparent judgments to all persons who resort to the
law. 1

AUDI ALTERAM PARTEM

It is fundamental to fair procedure that both sides should be heard. This is couched in the
maxim audi alteram partem which means ‘hear the other side’. This rule is not confined to the
conduct of strictly legal tribunals, but is applicable to every tribunal or body of persons
invested with authority to adjudicate upon matters involving civil consequences to
individuals. This was laid down in the case of Wood v. Woad (1874) L.R. 9 Exch. 190
In Ex parte Bannerman it was held that even if the commission or its chairman had had the
power to suspend the applicant, in the circumstances, its exercise would have been deemed
capricious. Whether the chairman was acting administratively or judicially in suspending the
applicant he was still subject to the rules of natural justice, and in particular to the audi
alteram partes rules. This rule was not confined to the conduct of strictly legal tribunals but
was applicable to every tribunal or body of persons invested with authority to adjudicate upon
matters involving civil consequences to individuals.
The principle of audi alteram partem is so fundamental and entrenched that "even God
himself did not pass sentence upon Adam, before he was called upon to make his defence.
The statement was made in the case of R. v. University of Cambridge (1723) 1 Stra.557. In
that case, one Dr Bentley had been deprived of his academic degrees in the University of
Cambridge without notice or hearing. But he succeeded in obtaining a mandamus to secure
reinstatement. In the judgment the judge Fortes cue J. said:
“…even God Himself did not pass sentence upon Adam before he was called upon to
make his defense and what was Adam’s defense? It was this; The woman whom thou
gavest to be with me, she gave me the fruit of the tree and I did eat. God did not also
condemn Eve unheard: then the Lord said to the woman, what is this that you have
done? What was Eve’s defense? Eve said: the serpent beguiled me and I did eat.
Having heard both of them, Almighty God proceeded to pass sentence. He expects us
to do the same.”
For there to be a fair hearing an assumption is made that there must be certain rights afforded
the individuals concerned:
i. Sufficient prior notice must be given to the individual concerned to enable the
individual to be adequately prepared. Accordingly, in the case of Lagudah vs. Ghana
Commercial Bank [2005-2006] SCGLR 388, Date-Bah espoused that “the core idea
implicit in the natural justice principle of audi alteram partem was simply that a party
ought to have reasonable notice of the case he has to meet and ought to be given
opportunity to make his statement in explanation of any question and answer any
arguments put against it”. This principle of law was also applied in the much earlier

1
See per Bamford-Addo, JSC in Republic v. High Court, Denu; Ex Parte Awusu II (No 2) (2003-2004) SCGLR 907
at 910.
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case of Republic v Ghana Railway Corporation; ex parte Appiah & another

[1981] GLR 752.
In Serbeh-Yiadom v Stanbic Bank (Gh) Ltd [2003-2005] 1 GLR 86 the Supreme Court
stated that: “It is a salutary and well-known principle of law that a person should be given
the opportunity of being heard when he is accused of any wrong doing before any action is
taken against him”.
It must be noted that in dealing with the principles of natural justice, one has always to bear
in mind that the principles are substantive rather than procedural safeguards. Therefore, the
fact that a particular formal procedure is not adopted, does not of itself imply that the
principle has not been applied in an appropriate case. Therefore, in the case of Republic v
Ghana Railway Corporation; ex parte Appiah & another [1981] GLR 752 the court held
that the principle did not require that there must be a formal trial of a specific charge akin to
court proceedings. The principle of audi alteram partem would be held as having been
complied with if a person suspected of any malpractice or neglect of duty was invited to
answer questions put to him by the inquirers or the investigations.
Where the giving of prior notice of impending action or proceedings was required by the
rules of a voluntary association, failure to serve notice on the party immediately affected
would enable him successfully to impugn the validity of the proceedings. This principle was
laid down in the case of Interim Executive Committee Of The Apostolic Divine Church
Of Ghana v. Interim Executive Council And Others [1984-86] 2 GLR 175.
Similarly, in the case of Accra Hearts of Oak Sporting Club v. Ghana Football
Association [1982-83] GLR 111 it was held that it is a well-established law that 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 may be in a position to prepare their own case,
appear at the inquiry and make representations on their own behalf or through a
representative: see Republic v. State Fishing Corporation Commission of Enquiry
(Chairman); Ex parte Bannerman [1967] G.L.R. 536 and Lawlor v. Union of Post Office
Workers [1965] 1 All E.R. 353.

ii. The right to make representation. However, it must be noted that a hearing may be
denied on the grounds of futility. In the case of Gylnn v keele University (1971) 1
WLR 487, breach of natural justice was held to have occurred where a student was
fined by the university without first being told the reasons why or being granted a
hearing. However, his relief was denied on the grounds of futility on that nothing he
could have said would have made any difference in the outcome.

iii. There must be cross examination at the hearing.

iv. Right to legal representation. Article 19(2)(g) of the 1992 Constitution provides that a
person charged with a criminal offence shall be afforded facilities to examine, in
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person or by his lawyer, the witnesses called by the prosecution before the court, and
to obtain the attendance and carry out the examination of witnesses to testify on the
same conditions as those applicable to witnesses called by the prosecution

S. A Brobbey said in his book Practice and Procedure in the Trial Courts and Tribunals
of Ghana 2 Edition at page 280 Paragraph 638 where he wrote in paragraph 638 "a party
who fails to appear in Court after due service on him is taken to have deliberately failed to
take advantage of the opportunity to be heard. The audi alteram partem rule cannot be said
to have been breached in such a situation.”
The effect of the failure to hear a person was stated in The Republic V. High Court, Accra
Ex-Parte Salloum (Senyo Coker (interested party) [2011] 1 SCGLR 574 where the
Supreme Court stated thus: “Equally so, if a party is denied the right to be heard as in this
case, it should constitute a fundamental error for the proceedings to be declared a nullity.
The courts in Ghana and elsewhere seriously frown upon breaches of the audi alteram
partem rule to the extent that no matter the merits of the case, its denial is seen as a basic
fundamental error which should nullify proceedings made pursuant to the denial.”
However, a party can waive his right to be heard. In Republic v Court of Appeal Ex Parte
Eastern Alloy [2007-2008]1 SCGLR 371 the court stated thus: “It is trite law that the rules
of natural justice can be waived, see Bilson v Apaloo (1981) GLR 24 SC. There is no
suggestion that the applicant was unaware of the hearing date of the motion, yet it absented
itself without even representation by counsel. A clearer case of waiver of the right to a
hearing could not be imagined.”
Therefore, deliberately absenting oneself would constitute a waiver. This was discussed in the
cases of Republic v High Court (Human Rights Division), Accra; Ex parte Josephine
Akita (Mancell – Egala and A-G, Interested Parties) [2010] SCGLR 374 and Others and
Republic v High Court (Fast Track Division); Ex-parte State Housing Co. Ltd. (No. 2)
Koranten-Amoako Interested Party, [2009] SCGLR 185.
In Republic v. High Court (Human Rights Division), Accra; Ex parte Josephine Akita
(Mancell-Egala and A-G, Interested Parties) [2010] SCGLR 374, the court said: “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”.
In the celebrated case of Republic v High Court (Fast Track Division); Ex-parte State
Housing Co. Ltd. (No. 2) Koranten-Amoako Interested Party, [2009] SCGLR 185 at 190
the Supreme Court, per Wood C. J. stated authoritatively as follows: “A party who disables
himself or herself from being heard in any proceedings cannot later turn round and accuse
an adjudicator of having breached the rules of natural justice.”
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ADMINISTRATIVE BODIES

In the case of Awuni v. West African Examination Council [2003-2004] 1 SCGLR 471 The
Court, speaking through Date- Bah JSC held at page 559 that; "The term administrative bodies
and administrative officials should be interpreted as references to bodies and individuals
respectively which or who exercise public functions which affect individuals...”

The audi alteram partem rule states that no man is to be condemned unless he has been given
prior notice of the allegations against him and a fair opportunity to be heard. Its application
would require that a party to an administrative enquiry is given an opportunity to state his
case before a decision is reached, if such a decision is likely to affect his rights or legitimate
expectations. It would also require that prejudicial facts are communicated to the person who
may be affected by the administrative decision. Again, it would also require that
administrative tribunal give reasons for its decisions, and it would further require that it acts
fairly.
Generally, the rules of natural justice apply whenever an administrative act is quasi-judicial,
and an administrative act is said to be quasi-judicial if it affects the rights and liberties of an
individual. Whether or not the requirements of giving a party an opportunity to be heard has
been met depends on the circumstances of the particular case. The authorities insist that
quasi-judicial tribunals must always ensure that their procedures are fair and that their
proceedings are fairly construed. Accordingly, Article 23 of the Constitution provides that
administrative bodies and administrative officials shall act fairly and reasonably and comply
with the requirements imposed on them by law and persons aggrieved by the exercise of such
acts and decisions shall have the right to seek redress before a court or other tribunal.
In the case of Awuni v. West African Examination Council [2003-2004] 1 SCGLR 471,
Kpegah JSC enunciated the law on article 23 thus: “The phrase “to act fairly and reasonably”
in my opinion necessarily imports a duty to observe the common law maxim of audi alteram
partem and other principles of natural justice which is very much part of our jurisprudence
and are implicit in the constitutional provisions in article 23. Because I cannot contemplate
how a person could be said to have acted fairly and reasonably if he did not give either notice
or hearing to another who was entitled to such notice or hearing before taking a decision
which adversely affects his rights, neither can I contemplate a situation where a person could
be said to have acted fairly and reasonably if he acted as a judge in his own cause, or gave a
biased and perverse decision!.”
In the same case, Sophia Akuffo JSC also opined that “by this article, the right to
administrative justice is given constitutional force, the objective being the assurance to all
persons the due observance and application of the principles of natural justice which foster
due process and the stated qualities, in the performance of administrative activities that affect
them. In my view, the scope of article 23 is such that, there is no distinction made between
acts done in exercise of ordinary administrative functions and quasi-judicial administrative
functions. Where a body or officer has an administrative function to perform, the activity
must be conducted with, and reflect the qualities of fairness, reasonableness and legal
compliance. I will not venture to give a comprehensive definition of what is fair and
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reasonable, since these qualities are dictated by the circumstances in which the administrative
function is performed. At the very least however, it includes probity, transparency,
objectivity, opportunity to be heard, legal competence and absence of bias, caprice or ill-will.
In particular, where, as in this case, the likely outcome of an administrative activity is of a
penal nature, no matter how strong the suspicion of the commission of the offence, it is
imperative that all affected persons be given reasonable notice of the allegations against them
and reasonable opportunity to be heard, if the objective of article 23 is to be achieved.”
Also, in the earlier case of Aboagye v Ghana Commercial Bank Ltd [2001-2002] SCGLR
797, Bamford-Addo stated thus “acting fairly implies the application of the rules of natural
justice which have been elevated to constitutional rights and are binding on all adjudicating
and administrative bodies as well as courts and tribunals.”
Similarly, in the case of Abena Pokuaa Ackah v Agricultural Development Bank [2017-
2020] 1 SCGLR 226, Dotse JSC opined that “It has already been stated that, under Article
23, of the Constitution, administrative bodies and tribunals are requested to act fairly and
reasonably. Indeed, the rules of natural justice also require that a person must be given an
opportunity to be heard before a decision is made affecting her rights. Quite clearly, the facts
in this case establish that, the Respondents highest decision-making body, the Board, before
which the Applicant was hurriedly arranged, had made up their mind to deal ruthlessly with
the Applicant with recklessness, before the commencement of hearing. This was evident in
their wording of the suspension letter and reduction of half of her salary even before the
applicant was heard.”
This is in line with current trends in administrative law in general, and as pointed out in
Halsbury’s Laws of England, (4th ed) (Reissue) Vol 1(1), para 84: "…the obligation to
observe natural justice is not confined to bodies constrained to observe the procedural and
evidential rules of a court of law. For this reason the courts have tended in recent years to
speak less of natural justice and more of a duty to act fairly. This is not a duty which is
confined to persons and bodies having a duty to act judicially or quasi-judicially, although
whether a function is more characteristically administrative or quasi-judicial may be one
factor determining what fairness requires in its exercise.”
Regarding what would amount to fairness, Halsbury’s Laws of England explains that while
in some cases fair procedures may mean giving a party a right to an oral hearing, in other
cases an opportunity to make written representations would be sufficient. Also while being
fair require reasons are given for the decisions taken, the extent of and the manner in which
the reasons are given may not be the same in all cases.

NEMO JUDEX IN RE SUA: THE RULE AGAINST BIAS

The Latin phrase nemo judex in causa sua translates as no man shall be a judge in his own
cause. This demands that tribunals be disinterested and impartial. The Ghanaian test for bias
differs from the Common law test. In Ghana, it is the real likelihood of bias test that applies.
The test was outlined in the case of Attorney-General v Sallah 2 G&G 487. In reading the
majority decision, the Supreme Court stated the law thus a complaint of bias must be proven
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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 real
likelihood of bias was more probable than its non-existence. Mere allegation of suspicion of
bias will not do.
Therefore, to disqualify a judge and invalidate his decision, the allegation of bias must be
supported by evidence. This is because the law recognized not only actual bias but interest,
other than interest of a direct pecuniary or proprietary nature, which give rise to real
likelihood of bias. Without more, the conduct judge cannot support the charge of bias.
Much earlier, the Court of Appeal had held in Amponsah v Minister of Defence [1960]
GLR 140 AT 141, where Korsah CJ said that: “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.”
Again, in Attorney-General v Sallah 2 G&G 487, the Court of Appeal then sitting as the
Supreme Court, said at page 488 of the report that: “What then is the law on disqualification
on the ground of bias? We think that bias in a judge disqualifies him from adjudicating upon
a case. And in this regard the law recognizes not only actual bias as a disqualifying factor but
a likelihood of bias as well.”

This means that there need not be actual bias in a matter to disqualify a judge, but the
presence of a real likelihood of bias will also disqualify a judge from adjudicating on a
matter. This rationale for this rule against bias is reflected in the time-honoured legal cliché
that not only must justice be done; it must also be seen to be done. For this reason in the case
of The Republic v High Court Sekondi, Ex Parte Mensah And Others [1994-95] 2 GBR
491, Hayfron-Benjamin JSC, cautioned that: “But the likelihood of bias is not enough. The
applicants must demonstrate a real likelihood of bias in the adjudicating authority. This they
have failed to do. Of course it is settled law that where a judge senses that one or all parties to
a litigation have lost confidence in his impartiality the proper course for the judge is to
decline jurisdiction.”

In the case of Abena Pokuaa Ackah v Agricultural Development Bank [2017-2020] 1

SCGLR 226, Dotse JSC Held that the essential ingredients and characteristics of prejudice
and bias were that “(1). the test of bias is an objective and not a subjective test. What then
will a reasonable person seized with all the facts in a given circumstance conclude that the
decision made in a case was tainted by bias? It is clear from the suspension letter that the
respondents were biased against the applicant from the very inception of this case. (2) that
there need not be actual bias. Even though this need not be proven, in this instance, there was
clear evidence of actual and apparent bias. (3). that there is a real likelihood of bias.”
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In the case of Amadu v Mohammed [2007-2008] SCGLR 58, Date-Bah JSC in delivering
the judgment of the Supreme Court articulated that “while undoubtedly, real likelihood of
bias in a judge is ground for granting an order of prohibition against him, such likelihood has
to be established on the basis of the facts duly proved”. This was also applied by the
Supreme Court in the case of Republic v High Court, Denu, Ex Parte Agbesi Awusu II
(No.1) [2003-2004] 2 SCGLR 864, where the court stated that a charge of bias or real
likelihood of bias must be satisfactorily proved on the 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 by case basis.
Also in the case of Republic v High Court, Kumasi, Ex Parte Mobile Oil [2005-6] 1
SCGLR 312, the Supreme Court stated that at common law, a judge or magistrate or an
independent arbitrator would be disqualified from adjudicating whenever circumstances
pointed to a real likelihood of bias, by which was meant “an operative prejudice, whether
conscious or unconscious” in relation to the party or issue before him. That would apply in
particular where the circumstances pointed to a situation where a decision might be affected
by preconceived views. In the same case Georgina Wood JSC (as she then was) stated that
“where a judge has unequivocally made known his views about the merits of the critical
disputed issue he would be called upon to adjudicate, in a very direct or forthright manner to
suggest prejudgment or predetermination, I would like to think that he must be disqualified
on the grounds of a real likelihood or danger or possibility that he would not apply his mind
impartially to determining the very matter(s) on which he has formed an unqualified
opinion”.
Therefore, where the judge had foreknowledge of the very issues of fact to be determined,
that would disqualify him from sitting. This was articulated by Bamford-Addo JSC in the
case of Republic v High Court, Denu, Ex Parte Agbesi Awusu II (No.1) [2003-2004] 2
SCGLR 864.

In the light of the following case, the test for bias is that the court had first to ascertain all the
circumstances which had a bearing on the suggestion that the judge was biased. It then had to
ask whether those circumstances would a fair minded and informed observer to conclude that
there was a real possibility or a real danger, the two being the same, that the tribunal was
biased. Thus, for bias to succeed, there must be proof of actual bias, in the form of pecuniary
benefit to the judicial officer. It could also be proved by interest of a proprietary nature which
would lead or amount to a real likelihood of bias. And it must also arise from the
circumstances of the situation which a fair-minded and objective person may conclude that
there was a real danger or real possibility of bias. The rationale for the rule against bias is
reflected in the time honoured legal cliché that not only must justice be done; it must also be
seen to be done.
In the case of In re Medicaments and Related Classes of Goods (No.2) (2001) TLR 84 the
English Court of Appeal at page 85 per Lord Philips, MR, reading the opinion of the court:
“The court had first to ascertain all the circumstances which had a bearing on the suggestion
that the judge was biased. It then had to ask whether those circumstances would lead a fair-
minded and informed observer to conclude that there was a real possibility, or a real danger,
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the two being the same, that the tribunal was biased... Thus, for bias to succeed or prevail,
there must be proof of actual bias, in the form of pecuniary benefit to the judicial officer. It
could also be proved by interest of a proprietary nature which may lead or amount to a real
likelihood of bias. And it must also arise from the circumstances of the situation which a fair-
minded and objective person may conclude that there was a real danger or real possibility of
bias”.
This was reiterated by the Supreme Court in the case of Nana Yeboa-Kodie Asare II v
Nana Kwaku Addai Supreme Court, dated 12/02/2015. And also, in the more recent case of
Republic v. High Court, Accra (Commercial Division); Ex-Parte: Environ Solutions and
3 Others [2020] DLSC 8798.

EXCEPETIONS TO THE RULE AGAINST BIAS

i. Statutory Duty
Where a statute enjoined a person to perform an act he had to do it even if its performance
conflicted with the strict rules of natural justice. This principle of law was first underscored in
the case of Dimes v. Grand Junction Canal Proprietors (1852) 3 H.L.Cas. 759.
Thus, 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. The oft quoted aphorism as stated in the
case of Rex v Sussex Justices, ex parte McMarthy [1924]1 KB. 256 “Not only must justice
be done; it must also be seen to be done” does not apply when it comes to complying with
Statutory requirements.
Article 125(4) of the 1992 Constitution provides that the Chief Justice shall, subject to this
Constitution, be the Head of the Judiciary and shall be responsible for the administration and
supervision of the Judiciary." By article 128(2) of the 1992 Constitution, the Supreme Court
shall be duly constituted for its Work by not less than five Supreme Court Justices except as
otherwise provided in article 133 of this Constitution.
Article 144(6) states that where the office of Chief Justice is vacant, or where the Chief
Justice is for any reason unable to perform the functions of his office-
(a) until a person has been appointed to, and has assumed the functions of, that office; or
(b) until the person holding that office has resumed the functions of that office; as the
case may be,
these functions shall be performed by the most senior of the Justices of the Supreme Court."

In Akufo-Addo v. Quashie-Idun [1968] GLR 667, CA (full bench), it was held that the
function of the Chief Justice was to constitute benches of the Court of Appeal. As long as he
remained in office and in the country he performed that as part of his administrative duties.
The only situations in which another might be nominated to perform his functions were given
by the Courts Decree, 1966 (N.L.C.D. 84), para. 3 (2), namely, when he was ill or absent
 MBOWURA JOSHUA

from the country. Where a statute enjoined a person to perform an act he had to do it even if
its performance conflicted with the strict rules of natural justice. This was also applied by the
Supreme Court in the case of Tsatsu Tsikata v Chief Justice and Attorney-General [2001-
2002] SCGLR 437.

Also in the case of Kuenyehia & Ors. v. Archer and Ors [1993-94] 2 GLR 525, the
Supreme Court re-affirmed the decision in the Akufo-Addo case, holding that, the power or
the right to empanel the Supreme Court was, under the law and the practice of the Court, the
prerogative of the Chief Justice with the consequence that unless there were very good
reasons for seeking a change on grounds such as legal bias, the Court would be loathe to
interfere with the Chief Justice's exercise of his prerogative.
Finally, in the case of Agyei Twum v Attorney-General & Akwetey [2005-2006] SCGLR
732, the Supreme Court speaking through Date-Bah JSC succinctly stated thus “the principles
of natural justice are not, in any case, applicable nor relevant to the empanelment decision,
since that decision is neither judicial nor quasi-judicial, but merely ministerial. 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”

ii. The doctrine of necessity

In the case of Bilson v Apaloo [1981] GLR 15, the Supreme Court held that the rule of
natural justice (nemo judex in causa sua) also known as the rule against judicial bias arose in
two ways: (i) where the adjudicator was disqualified because he had direct financial or
proprietary interest in the subject-matter of the suit; and (ii) there was a real likelihood that
the adjudicator would be biased in favour of one of the parties. There were, however, three
situations where the presence of any of the said disqualifying elements under the rule would
not render the adjudicator incompetent to sit: (a) it was always open to the parties, on their
being apprised of the disqualifying elements to waive their right to object to the adjudicator
sitting in the particular case; (b) an enactment might permit an adjudicator to sit or might save
the adjudication from invalidity; and (c) an adjudicator who might be otherwise disqualified
would be nevertheless eligible and indeed obliged to sit if there was no other competent
tribunal or if the quorum would not be formed without him. The policy reason underlying
that exception was necessity; in other words, the common law considered it expedient
that justice should be dispensed even by a "disqualified" judge than that there should
be a failure of justice or that the machinery of justice should grind to a halt in a
particular case.
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EFFECTS
It has long been held in many cases that a decision which offends against the principle of
natural justice is outside the jurisdiction of the decision-making authority. Attorney-General
v. Ryan (1980) AC 718.
Where bias or real likelihood of bias has been satisfactorily established against a trial judge,
both certiorari and prohibition would lie automatically to quash his judgment- Ex Parte
Agbesi Awusu II (No.2).
“These two rules are so basic to any judicial proceedings in this country that any violation
will necessarily result in setting aside the decision of the tribunal.” Baddoo JA Boye-Doe v.
Teye [1997- 98] 1 GLR 997