“The two faces of Natural Justice: Ex parte Dorgbadzi in retrospect”

 A: Introduction

When Ghana’s rich Judiciary history from 1876 comes to be told in future, it will be truly rich. The story will not be complete without the novel and epoch-making appointment of University Law Professors onto the Supreme Court Bench in the early 2000s. That was during the Presidency of Mr. J. A Kufour. It was at that time that the late Professors A.K.P Kludze and Tawiah Modibo Ocran, and the living Prof. S. K. Date-Bah returned home from years of sojourn in foreign climes. Dr. Seth Twum was also poached from the Bar to join the Bench. These fine legal brains joined the existing team of Justices at the Supreme Court and their distinguished exploits are well documented in Ghanaian Law Reports. They brought and popularized a number of unique practices on the Supreme Court Bench. One such practice was the concept of valedictory decisions. If my memory serves me, it was Prof. Date-Bah who described his last judgment before his retirement from the Bench in 2013 as his ‘valedictory judgment.’ Since then, other retiring Justices have also named their last judgments as valedictory judgments.

On 6th June, 2023, Dotse, JSC delivered the latest valedictory decision on his last day on the Supreme Court Bench in the case of Republic v High Court, Tema; ex parte Yaw Godwin Dorgbadzi & Another (Michelle Dapaah Tetteh & Another Interested Parties). The central theme in the ruling was the need to uphold the tenets of natural justice, notably, the audi alteram partem rule that requires that, a person must be given a hearing before he or she is condemned. This article discusses the ‘trial’ and the valedictory decision in the case. It also highlights the procedure the Supreme Court adopted in hearing the application for certiorari and prohibition. The author notes that the Supreme Court’s conclusion that this was an appropriate case for certiorari and prohibition orders to issue were fair, in the circumstances of the case, and in the light of precedents. However, the author contends that the decision to put the trial High Court judge on ‘trial’ at the Supreme Court, and condemning him to global scorn and opprobrium, without giving him an opportunity to be heard in his defence, cast a slur on the Supreme Court’s own appreciation of the audi alteram partem rule. This is more so the view when one considers the fact that the trial High Court judge was made the villain before the ‘Sanhedrin’ on grounds that he had failed to observe the self-same audi alteram partem rule – by failing to ensure that certain parties were notified before the court conducted its impugned business on the fateful 18th day of August, 2022.

B: The tale of valedictory decisions   

A valedictory speech is a farewell speech that is given for a departing or retiring fellow. It is also used to describe a speech delivered by a student at a school’s graduating ceremony. Back home, the last judgment a retiring judge delivers on his or her last day of sitting is referred to as a valedictory judgment. Some retiring Chief Justices and Justices of the Supreme Court have also been celebrated with send-off parties by the Bench or Bar on their last day at work at the premises of the Supreme Court. The old folks among the category of celebrated retirees who excelled and were given rapturous exit parties included Amissah, JA (who chose to retire from the Bench at age 46), Taylor, JSC and Apaloo, CJ. In recent times, we have celebrated the retirement of Georgina Wood, CJ and Sophia Akuffo, CJ and wished them well in retirement. By all accounts, they are both well and remain hearty. On all occasions, the Ghana Bar Association (GBA) has been there, with our sweet and melodious farewell messages.

With specific reference to Dotse, JSC’s valedictory decision day, His Lordship reportedly wept at the ceremony. He also joyously danced to “Vovome.” Now, shedding tears on valedictory decision day appears to be a new phenomenon. If you are like me and you have lived most of your adult life in Ghana, you would recall that grown men weeping on national television used to be the preserve of politicians facing Commissions or Committees of Inquiry about misappropriation or misuse of state funds or some other financial infractions. Now that tears-shedding is almost becoming a requirement for ‘Valedictory Decision Day,’ judicial retirees who may have difficulty working up a tear may have to abandon the whole valedictorian performance.

It must be stated, though, that many retiring judges have gone home quietly without a fitting degree of pomp and circumstance. Some Justices have also gone unnoticed without any teary valedictory performance but snippets of information from the Presidency have revealed that, they were seen off with a ‘bow-tie’ dinner attended by the President of the Republic. The dinner, the snippets go, was ostensibly organized by the National Executive of the Ghana Bar Association without notice to the general membership of the GBA. The President of the Republic reportedly assured His Lordship-en-route-to-retirement that posterity will be kind to him. Thank you, Mr. President. Since the ‘party’ was organized under the cover of darkness, we have not heard of the GBA’s farewell statement. But I wager it will not be far from the beaten path. 

C: The decision that took a judge home and another to the gallows - Ex parte Dorgbadzi 

Facts: What happened in Ex parte Dorgbadzi was that, the applicants (who were caveators against the grant of Letters of Administration in respect of the estate of the late Rev. Emmanuel Dorgbadzi) applied to the Supreme Court for an order of certiorari to quash the orders made by the High Court on 18th August, 2022 striking out their caveat for want of prosecution, and granting Letters of Administration to the interested parties. The application also sought an order to prohibit the High Court judge from further handling the application for Letters of Administration at the High Court. The basis of application was that, the applicants were not given any notice that the case was coming off on 18th August, 2022. They deposed that they had been informed that their case would not be heard on that day. However, the trial judge went ahead to strike out the caveat for want of prosecution and granted the Letters of Administration to the interested parties. Therefore, the applicants contended that the hearing on the day breached the audi alteram partem rule.

Procedure: Before arriving at its ruling in the case, the Supreme Court held a hearing into the allegations put forth in the application. The Court sat weekly on three occasions. The current Registrar of the High Court, Tema, was called as a court witness. The Registrar was not the one in charge of Tema High Court at the material time of 18th August, 2022. She tendered the Court Notes, Things Book, audio and video recordings of all the virtual proceedings held before the High Court on 18th August, 2022, and the Case Docket in evidence before the Supreme Court. The Supreme Court found that, the evidence on record showed that the case was not listed for hearing on 18th August, 2022 but it was heard on the blind side of the caveators. 

Decision: After the hearing, the Supreme Court granted the application and issued an order of certiorari to quash the High Court’s orders made on 18th August, 2022. The Court also made an order to prohibit the High Court judge (now a judge of the Court of Appeal) from further handling the case regarding the application for L/A in respect of the estate of the late Rev. Dorgbadzi. It was held that, the trial High Court judge failed to give the applicants a hearing before striking out their caveat. Therefore, the Court breached the audi alteram partem rule of natural justice which requires that a person must be heard before a decision is taken in a matter concerning him. 

The Court held further that, the High Court judge should not have struck out the applicant’s caveat because the issues raised in the caveat were of utmost importance. For instance, the caveat raised issues about the capacity of the parties who applied for the Letters of Administration. The caveat also raised legal issues about priority of grant of Letters of Administration in respect of intestate estates. In addition, the Supreme Court questioned the values attached to the properties in the deceased’s estate as listed in the application for Letters of Administration. It described the estate as undervalued and deceptive.

Furthermore, the Supreme Court noted that from the conduct of the High Court judge, he was biased against the applicants. According to the Supreme Court, “[t]his is exemplified in the conduct of the judge in putting aside rules of proper conduct in determining cases thereby descending into the arena of the (sic) conflict as an interested party.”

Referrals: In the normal course of things, the Supreme Court’s ruling would have ended after it gave its orders of certiorari and prohibition, and the reasons for doing so. But considering the fact that this was an extraordinary valedictory decision like none other, there were bound to be extraordinary consequences. Thus, as the presiding Justice was on his way home to rest, he left a veritable list of “to dos” for some important personalities in active service. The venerable valedictorian left homework  – sophistically called ‘referrals’ - and the officers-in-charge of their execution as follows:

Homework                                                                 Officer-in-charge

  1. Further investigations into the conduct   The yet-to-be-sworn-in Chief Justice

Of the High Court judge and the Registrar under

Whose tenure the sordid affairs happened 

  1. Investigation into undervaluation of    The yet-to-be-sworn-in Chief Justice  

The deceased’s estate by lawyer for the 

Interested parties

  1. Unravelling the phenomenon of          The yet-to-be-sworn-in Chief Justice  

Undervaluation of deceased’s estates

  1. Enquiry into the circumstances            Judicial Service

That led to Sebastian Agbo’s interdiction

  The decision also made proposals for reforms. I pray to put that off to a more convenient season. 

D: Matters arising from the decision in Ex parte Dorgbadzi

From the facts, the procedure adopted, the decision given and the ‘referrals’ made in Ex parte Dorgbadzi, one cannot help but observe the worrying precedent set by the case. If I were the late Mr. Justice J.N.K Taylor, I would have described the decision in Ex parte Dorgbadzi as an invidious and dangerous decision subversive of the legal order. In the following sections, I discuss the reasons that form the basis of my contention.  

  1. Procedure for handling judicial review applications

It is common knowledge that the Supreme Court has jurisdiction to review the decisions of lower courts and other adjudicating bodies when exercising its supervisory jurisdiction. As such, cases on judicial review such as Ex parte Dorgbadzi are routinely heard before the Court. The courts treat applications for judicial review as matters that need urgent attention and determination. Thus, when it comes to hearing of such judicial review applications (habeas corpus, certiorari, mandamus, prohibition and quo warranto), the Court relies on the motion paper and the affidavit evidence in support and in opposition to the application, and the parties’ respective statements of case to arrive at its decision. It is rare, nay, novel, that the Supreme Court will hold a ‘trial’ and receive evidence (most of which is documentary, anyway), before rendering its ruling in a simple application for certiorari and prohibition such as what unfolded in Ex parte Dorgbadzi.  

Talking about applications for orders of prohibition, such applications usually impute wrongdoing to the judge or other judicial officers in the handling of a case. In such instances, the practice and procedure followed by the courts when such applications are made is to ‘hear’ the judge or other officers’ side of the story by taking affidavit evidence from them. The affidavit will provide the judge or officer’s answers to the allegations contained in the application. The court will then be in a position to give a decision on the application. This was the procedure followed in cases such as Republic v High Court, Kumasi; ex parte Mobil Oil (Ghana) Ltd (Hagan (Interested Party), Republic v High Court, Denu; ex parte Agbesi Awusu II (No. 2) (Nyonyo Agboada (Sri III) (Interested Party) and Effia Stool v Fijai Stool. Regrettably, the Supreme Court failed to follow this well-settled practice of the courts that is anchored on the audi alteram partem rule of natural justice which demands that a person must be heard before being condemned. Even where no affidavit is taken from the trial judge, the Supreme Court is able to hear such applications based on the affidavit evidence available as was done in Republic v High Court (Criminal Division 1); ex parte Stephen Kwabena Opuni (No. 1) (Attorney-General Interested Party). Secondly, even though the trial judges in the above-cited cases were found to be biased and prohibited from further handling the cases, none of them was put on trial and humiliated as the trial judge in Ex parte Dorgbadzi.

It is interesting to note that, the Supreme Court confirmed that the High Court judge who granted the L/A, and whose decision was the subject-matter of the application for certiorari and prohibition has since been promoted as a Court of Appeal judge. Therefore, the said judge is still in the employment of the Judicial Service. At all material times when the application was pending before the Supreme Court, he was at post. If his duty station was Accra (there is no evidence to the contrary), then he shared the same premises with the Supreme Court.  

In spite of the judge’s proximity and apparent ease of reach, the Supreme Court failed to request even affidavit evidence from him. Rather, it called a Registrar who was not at post at the material time of 18th August, 2022 to come from Tema to the Supreme Court on three occasions to give evidence on matters on which she had no firsthand information. It is submitted that the procedure adopted by the Supreme Court in Ex parte Dorgbadzi does not accord with the settled practice of the courts in handling applications for certiorari and prohibition. In choosing to tread a different path, the Supreme Court has set the rules regarding applications for judicial review on their head. The decision has caused a grievous miscarriage of justice to other persons, including the trial judge, who appeared to be the subject-matter of the so-called ‘hearing’ held by the Supreme Court, but was not given any opportunity to defend himself. 

  1. Finding of bias without evidence

In fact, on the question of bias, all that the Supreme Court said was that, “from the conduct of the trial judge, it appears he was biased against the Applicants” without any supporting evidence. Ironically, immediately after making such a bare statement, the Supreme Court went ahead to cite Republic v High Court, Denu; ex parte Agbesi Awusu II (No. 2) (Nyonyo Agboada (Sri III) (Interested Party) which had held that, “where bias or real likelihood of bias has been satisfactorily established against a trial Judge, both certiorari and prohibition would automatically lie to quash his judgment or prevent the biased Judge from hearing a case in the supreme interest of justice so as not to bring the administration of justice into disrepute.” (Emphasis added) 

In Ex parte Dorgbadzi, one wonders what bias or real likelihood of bias was satisfactorily established against the trial judge. It was established from the Supreme Court’s trial that the applicants were not notified of the hearing of 18th August, 2022. The High Court records show there was a hearing. The audio and video recordings show there was no hearing; and there was evidence that the recordings had been tampered with. All these alleged infractions happened at the Registry level. They do not show anything the judge did or said that imputed bias to him. In the circumstances, the Supreme Court’s finding of bias against the trial judge lacks foundation, to say the least.

  1.  Audi alteram partem: To Tema, via Greece and Garden of Eden 

From the ruling given in Ex parte Dorgbadzi, the trial judge stands accused of not giving the applicants a hearing at the High Court. From the grounds stated in support of the application for certiorari, the accusation has merit. But with all due deference, the Supreme Court also committed the same offence by not hearing the side of the trial judge’s story before taking him to the cleaners. It was a delight to be on the historical excursion into the origins of the audi alteram partem principle (from Garden of Eden to old Greece to Africa) as narrated by the honourable valedictorian. We agree with him ‘in toto’ (in remembrance of Appau, JSC (now on retirement)) that the trial judge should have respected the applicants’ right to be heard before striking out their caveat. By parity of reasoning, it is submitted that the Supreme Court should have also respected the trial judge’s right to be heard before being condemned. Justice, like the fabled offer of milk to the fox and the stork, must be dispensed in a vessel which all seekers could use. A level playing field is required at all times if justice is to be seen to be manifestly done.

  1.  Legal effect of hearing a case without notice to a party – Effect of non-compliance

The Rules of Court recognize that in every human endeavour, mistakes and oversights (some genuine, some contrived) do happen. To help deal with any such situation that comes to the courts’ attention, the rules contain ample provisions for redressing situations where a party does not comply with the rules. As was held in Republic v High Court, Accra; ex parte Allgate Co. Ltd (Amalgamated Bank Ltd Interested Party), when a party is not served with a court document, or he is not informed that the case will be coming on and thus, he does not go to court, whatever orders the court will make against such an absentee party will be a nullity. The party affected can apply to have the orders set aside. 

In Ex parte Dorgbadzi, the applicants’ complaint was that, they were not notified that the case was fixed for hearing on 18th August, 2022. They rightly applied for certiorari, in my view. It was rightly granted by the Supreme Court. That was the right decision to make and it was supported by the evidence on record. What is not right is the Supreme Court’s decision to delve into the substantive issues in the application for Letters of Administration before the High Court, Tema. As Dotse, JSC rightly noted in Republic v High Court, Kumasi, ex parte Bank of Ghana & Others (Sefa & Asiedu Interested Parties) (No. 1); Republic v High Court, Kumasi, ex parte Bank of Ghana, & Others (Gyamfi & Others Interested Parties) (No. 1) (Consolidated), “[i]t is well settled that certiorari was not concerned with the merits of the decision; it was rather a discretionary remedy which would be granted on grounds of excess or want of jurisdiction and/or some breach of the rules of natural justice; or to correct a clear error of law apparent on the face of the record.” (Emphasis supplied)

In the light of this poignant statement of the law, it is most surprising that His Lordship, our valedictorian, who made such a profound statement of the law in Ex parte Bank of Ghana found himself burrowing into the substance of the application for Letters of Administration at the High Court. For instance, the Court discussed in detail the issue of the capacity of the applicants before the High Court and the value of the intestate’s estate. These are matters that are solely to be decided by the trial High Court, and not by the Supreme Court when exercising its limited supervisory jurisdiction. It bears stating that, hearing an application for certiorari is not the same as hearing an appeal; an appeal puts the whole case up for rehearing. Sadly, this distinction appears to have been lost on the Supreme Court in Ex parte Dorgbadzi.  

  1. A welcome package for a new Chief Justice

It will be recalled that the Supreme Court set down three tasks for the new Chief Justice to handle as a fallout of the proceedings in Ex parte Dorgbadzi. As at the date of the ruling, there was no substantive Chief Justice in office. The distinguished valedictorian was the acting Chief Justice. By the Supreme Court’s own showing, it took evidence on 8th, 15th and 22nd February, 2023. It gave its decision on 1st March, 2023. The proceedings at the Supreme Court took place under the tenure of the previous Chief Justice. The High Court judge was also promoted to the Court of Appeal under the previous Chief Justice. Therefore, one would have thought that if any Chief Justice was to be saddled with the task ‘to cause further investigations into the conduct of the learned trial judge…’, the previous office holder was the best candidate for the job. 

Be that as it may, it will be quite interesting to see how the new Chief Justice will deliver on the ‘homework.’ Her Ladyship, in her previous life as a trial judge, encountered a situation similar to that of the trial judge in Ex parte Dorgbadzi. That case - Republic v Judicial Service & Attorney-General; ex parte Catherine de Souza - also reached the Supreme Court on an application for certiorari. The facts were that, on 18th September, 2015, an application for contempt was filed at the High Court (Fast Track Division) in a case titled Republic v Anas Aremeyaw Anas & Others; ex parte Paul Uuter Dery & Others. De Souza, the applicant, was the Registrar of the High Court. She gave 12th and 13th of October, 2015 as the return date for the application for contempt. She later changed the return date to 28th September, 2015. But she did not inform the presiding judge that the dates were originally in October. Since the judge did not know of the change in date from the original dates in October, she proceeded to hear the application and dismissed it on 28th September, 2015 without recourse to the applicants who had filed the application (that is, Mr. Justice Dery and the others).

The applicants were naturally aggrieved that their motion had been dismissed in such fashion without their notice. They put the case in the public domain through the press and social media. Many people condemned the judge, the Chief Justice and the whole Judiciary. The judge lodged a petition against the Registrar’s (applicant) conduct to the Chief Justice. The Registrar wrote a response to the judge’s petition but her explanation appeared not to be satisfactory and she was subsequently interdicted and invited to appear before a Disciplinary Committee purposely set up to investigate her conduct. The applicant refused to appear before the Committee and rather filed a motion for judicial review before the High Court (Human Rights Division), Accra for reinstatement. Her application was dismissed and she filed an application for certiorari to the Supreme Court. The Supreme Court dismissed her application. With this great experience under her belt, the Chief Justice may not have much difficulty in disposing of the ‘homework,’ if she decides to undertake it at all.

  1.  Orders made against Sebastian Agbo – Chasing the wind

It may be recalled that as at February, 2023 when the Supreme Court held its trial, it was informed that the High Court Registrar (Sebastian Agbo) at the time of the 18th August, 2022 proceedings was on interdiction. According to a letter circulating on the internet and purportedly issued by the Judicial Secretary, the Registrar was dismissed from the Judicial Service on 18th May, 2023 “for fraudulently preparing thirty (30) court orders.” That means that, when the Supreme Court ordered the Registrar to be investigated on 6th June, 2023, he had already been dismissed from the Judicial Service. Thus, the Supreme Court’s order directed to the former Registrar is of no legal effect. 

Considering the depths the Supreme Court went in this case, it is surprising to observe that the Court failed to find out the current fate of the Registrar - the chief player in the scheme of things - before passing judgment on him. If the man had been dismissed for preparing 30 fraudulent orders, what is the guarantee that he did not orchestrate the scheme that ensured that the applicants in Ex parte Dorgbadzi were given wrong information not to be in Court? Once the Supreme Court developed an appetite for a trial, Agbo should have been called as a court witness. Even if he was on interdiction, he could have been hauled before the Court on a subpoena. This, the Supreme Court failed to do and is now tasking someone else to chase the horse after it has bolted from the stable. He is gone with the wind. His referral for investigations is moot. It seems Sebastian Agbo was not of as much importance to the Supreme Court as the trial judge.

  1. The chilling effect on judges

Before the ‘valedictory’ decision, we thought we had reached a stage in our national lives where judges could go to sleep, secure in the knowledge that their busts will not adorn the frontage of the Supreme Court Building. But now that we know that any judge’s Record Books, Things Books, Microsoft Teams virtual hearing recordings and even the form and mode of making the entries in the books could potentially be the subject-matter of ‘trials’ at the Supreme Court, one can only imagine the chill flowing down the spine of their Worships, Honours, Ladyships and Lordships. Maintaining one’s judicial independence while the effect of Ex parte Dorgbadzi is gnawing at them sounds daunting. It has been said elsewhere that judges have the right to be right and to be wrong as well. That is why the law provides for judicial review of court decisions. For a higher court to review the decision of a lower court as was done in Ex parte Dorgbadzi is in accord with law. But to ‘lift the veil,’ as it were, to humiliate, intimidate and make a villain out of a judge without giving him a hearing is the height of self-righteousness.

The Supreme Court seeks solace and psychological strength for its members. We have taken abundant notice of the request. But we wish to add that, we must spare a thought for trial judges, too. They work hard. If there is any group of adjudicators who may be on the brink of mental catastrophe, it is trial judges. The sheer amount of casework they have in some High Court rooms is enough to trigger a bout of migraine. High Court judges do incredible work. That is why decisions such as Ex parte Dorgbadzi do not bode well for their well-being. To handle cases while shivering from thoughts of a potential ‘trial’ before the Supreme Court on a litigant’s application for certiorari and prohibition must be quite debilitating for trial judges.

Perhaps, if the Supreme Court had considered the potential mental catastrophe its decision could have on trial judges, they would have better kept within the bounds of adjudication of judicial review applications than they did in Ex parte Dorgbadzi. After taking us on a jolly-ride of a ‘trial’ of a judge, it is difficult for one to see how we should rather be helping judges to keep their sanity. If the Supreme Court takes judges to the brink, there is very little the rest of the world can do to restore them to lucidity.

E: Conclusion

In Ex parte Dorgbadzi, the Supreme Court was presented with an application for orders of certiorari and prohibition directed against the decision of a High Court. That was a standard application that an aggrieved party will make in the circumstances of the case, especially on the established grounds that the applicants were not notified of the proceedings in which their caveat was struck out for want of prosecution. But the Supreme Court, most probably deeming itself to possess boundless powers, embarked on an exercise to ‘try’ the judge who handled the case. At the end of the day, it dawned on the apex Court that, after all, there is a limit to what it can do. After the glitz and glamour of the trial, its findings are sitting cold because it has no power to do anything with it.  

The Supreme Court is now calling on the new Chief Justice to conduct investigations. It is unclear what manner of investigations can be held into allegations that have already been the subject of trial before the Supreme Court. If the Supreme Court had not been too quick to emerge prim while showing the trial judge off as a villain, it would have requested for an affidavit from the trial judge and based its decision on the ample documentary evidence before it without the funfair of a trial. That way, the judge would have had the opportunity to meet his accusers and tell his side of the story.

The law makes provision for corrective affidavit where values of properties are found to be low. This is to ensure that appropriate estate duty is paid. Thus, the Supreme Court’s ‘referral’ on a so-called phenomenon of undervaluation is, with respect, a red herring.

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