Fair Trial in Civil Cases: A Right or A Privilege?

Fair Trial in Civil Cases: A Right or A Privilege?

Introduction

The concept of ‘fair trial’ was traditionally associated with criminal proceedings. This article seeks to examine the origin of the concept and how it has been recognized as a fundamental human right in a number of regional and international instruments. The telescope will be thrown at various jurisdictions to see how they have extended the concept to cover civil and administrative proceedings. The latter part of the discussion will focus on Ghana where we will find out whether fair trial is a right guaranteed in civil cases as well.

Meaning of a ‘fair trial’

A ‘Fair trial’ is defined as a trial by an impartial and disinterested tribunal in accordance with regular procedures. The term is synonymous with a fair and impartial trial.[1] In the United States of America (USA) and Brazil, it is referred to as ‘due process’ (And in this context, it is procedural due process as opposed to substantive due process)[2]  while in Portugal[3] and Angola[4], it is called ‘fair process’. 

Many a text writer have not shied away from describing ‘fair trial’ as a human right. Ian Langford observed: “The right to a fair trial is a basic human right and essential for the prevention of the abuse of all other human rights[5]. On his part, Bingham noted that the right to a fair trial is generally construed in the light of the rule of law, as its cardinal requirement.[6] It is frequently perceived to be one of the basic fundamental guarantees for the respect of democracy and the rule of law and thus represents a standard by which a state’s commitment to democracy and the rule of law is measured. 

The Pillars of the Right to a Fair Hearing

Ana Koprivica on the core of the right to a fair hearing pointed out: “[D]espite the virtually universal recognition of the significance of the right to a fair trial in general, and in civil law cases in particular, the constitutive elements thereof are diverse and constantly evolving… [T] hus, providing a universal definition of the concept is an impossible and challenging task”.

Nonetheless, the following have generally been identified as the underlying elements of fair trial:

  1. Right of access to a court[7]
  2. Right to be heard by a competent, independent and impartial tribunal[8]
  3. Right to ‘equality of arms’[9]
  4. Right to public hearing[10]
  5. Right to legal aid where necessary[11]
  6. Right to be heard within a reasonable time[12]

History of fair trial

The expression of ‘fair trial’ was coined in the seventeenth century, albeit in connection with criminal proceedings.[13] The establishment of the ‘right to a fair trial’ in general and in civil cases in particular, is a more recent phenomenon. This is not to say, however, that there were no guarantees of fair civil proceedings prior to that: certain procedural rights and guarantees which are part of the right to fair civil trial have long been considered as fundamental.[14]

Writing on the subject, Jackson alluded to the fact that the common law has long recognized two minimum fair trial guarantees known as – natural rights; the principle of judicial impartiality (nemo judex in causa sua) and the right to be heard (audi alteram partem).[15] Over the years, the right has evolved to encompass many other elements including a right of access to the courts, public hearings and a hearing within a reasonable time.

The origins of some of the basic principles that today constitute the right to fair trial can be traced back to the Lex Duodecin Tabularum (the Law of the Twelve Tables, 455-499 B.C.)[16]. These contained a right to have all the parties present at a hearing, the principle of equality among citizens and the prohibition against bribery for judicial officials. These concepts correspond to today’s right to be heard and defend oneself, the right to be subject to the rule of law, and the right to have one’s case adjudicated by an independent and impartial tribunal, all of which are essential to the conduct of a fair trial.[17]

In 1215, the signing of Magna Carta (1215) by King John marked another historical event in the development of the right to a fair trial and the rule of law in general. Clauses 39 & 40 thereof are often viewed as the ancestors of the right to a fair trial in its broad understanding.[18] The two clauses express the right of access to justice and the right to a fair hearing. 

As with other human rights, the scope of the right to a fair trial in general was further developed and codified during the Enlightenment period of the eighteenth and nineteenth centuries. Close in kinship and substance, the American Declaration of Independence (1776), the United States Bill of Rights (1791) and the French Declaration of the Rights of Man and of the Citizen (1789) established the foundations upon which the future legal protection of human rights would be built.[19]

According to Cappelletti, following the events of the twentieth century and in particular World War II, a necessity for the ‘constitutionalisation’ of the basic civil procedure rules and guarantees emerged as a reaction to their infringement and abuse.[20] Granting these standards a constitutional status was seen as necessary in order to provide for higher levels of their protection and this can be gleaned, for instance, from the Constitution of Italy 1948.[21] In addition, as part of the same reaction, the ‘internationalisation’ of fundamental procedural rights and guarantees took place, with an increasing number of international documents proclaiming such safeguards and placing them together under the chapeau of the right to a fair trial in civil cases.   

Recognition of the right to a fair trial in Civil Cases in Regional & International Instruments

The right to a fair trial as a fundamental human right has been guaranteed in a number of regional and international documents:

  • United Declaration of Human Rights (1948) (UDHR) Art. 10;
  • International Convention on Civil and Political Rights (1966) (ICCPR) Art 14;
  • European Convention for the protection of Human Rights and Freedoms (1950) ECHR Art 6, para 1;
  • African Charter on Human and People’s Right (1981) (also called the Banjul Charter) Art. 7; 
  • Charter of Fundamental Rights of the European Union (2009) (EU CFR) Art. 47 and
  • American Convention on Human Rights (1969) (ACHR) Art. 8 para 1. 

It needs emphasizing that these documents proclaim the right to a fair trial in both criminal and civil cases. It is reported by Doebbler that the European Court of Human Rights and the Inter-American Court of Human Rights have clarified that the right to a fair trial applies to all types of judicial proceedings.[22] For instance, the European Court of Human Rights in the case of Apeh Uldozotteinek Szovetsege and Others v. Hungary (2000) held that the fair trial rights contained in Article 6 of the ECHR apply to all civil rights and obligations created under domestic law and therefore to all civil proceedings. Accordingly, in most jurisdictions, the constitutional right to a fair trial refers both to criminal and civil cases or at least no substantial distinction is made with regard to the nature of the proceedings.

Comparative Constitutional Framework

  • Constitutions containing an explicit reference to the right to a fair trial in civil law cases
    • In Europe, most of the recently adopted constitutions i.e. those adopted following the ratification of the ECHR and the rise of the significance of the ECHR Jurisprudence follow this pattern with provisions on the right to a fair trial generally under Article 6 para 1 of the ECHR. Notable among them are Bulgaria,[23] Croatia,[24] Serbia,[25] Romania,[26] Bosnia and Herzegovina,[27] Switzerland,[28] Lithuania[29] and Hungary.[30]
    • Aside Europe, International human rights instruments have influenced the wording of contemporary constitutions. For instance, the 1973 Constitution of Pakistan was amended in 2010 under the influence of Article 10, so as to include the right to a fair trial. 
    • Similarly, the newly incorporated Art 10-A of the Constitution of the Republic of Pakistan: 1973, as amended in 2010 explicitly guarantees the right to a fair trial for the determination of one’s rights and obligations. The constitutional significance of this right was emphasized in a decision[31] by the Pakistan Supreme Court when it held: ‘the right to a fair trial was a long recognized right, now constitutionally guaranteed and by now well entrenched in our jurisprudence’.[32]
    • Again, in the context of Islamic Legal Tradition, it has been underscored by human rights activists that Islamic law has long incorporated most of the elements of the fair trial provisions of the UDHR.[33]

 (b) Jurisdictions in which the right to a fair trial has been inferred from other constitutional principles

  • In other European jurisdictions, like Czech Republic[34], Holland[35], Spain[36], Germany[37], Portugal[38] etc. the right to a fair trial has been inferred from various constitutionally-guaranteed procedural rights, such as the right to judicial protection, i.e. right of access to justice. 
  • In the absence of a written Constitution in the United Kingdom, the 1998 Human Rights Act,[39]which renders the ECHR directly applicable in the UK courts, is of comparable significance.[40]
  • In Anglo-American legal cultures, the examples of Canada and South Africa are worth mentioning here. In Canada, the fundamental requirements of procedural fairness are guaranteed under Section 7 of the Canadian Charter of Rights and Freedoms[41] as pointed out by one writer[42]. South Africa also has a similar guarantee contained in the Bill of Rights of the South African Constitution of 1997,[43]albeit providing more details as to procedural requirement. 

(c) Systems with due process clause

  • As stated earlier, in the US, ‘fair trial’ is known as ‘due process’.[44]  In 1791, the first ten amendments to the Constitution of the United States of America[45] made certain fundamental individual rights a part of the Constitution. Of particular relevance here is the right not to be deprived of ‘life, liberty and property without due process of law’ contained in the Fifth Amendment. In 1868, with the adoption of the Fourteenth Amendment and its ‘due process’ clause, this right became directly applicable in respect of individual states as well.[46]
  • In the US case of re Murchison,[47] it was established that a ‘fair trial in a fair tribunal is a basic requirement of due process’. In other words, the right to procedural due process as contained in the US Constitution applies to both civil and criminal proceedings and encompasses minimum procedural requirements that must be fulfilled. Essentially, the person concerned must be notified and be given opportunity to be heard by an impartial court. (See also the cases of United Supreme Court Joint Anti-Fascist Refugee Committee v. Mc Grath,[48]  US Supreme Court Goss v. Lopez).[49] In fact, this notice-and-hearing model is often referred to as a ‘civil’ model of due process, since it is in civil settings that this test is clearly established as a ‘single constitutional approach to procedural due process’.[50]
  • The Constitution of the Federal Republic of Brazil[51]  also uses the term – ‘due process’ in place of ‘fair trial’. It encompasses a series of principles of fundamental importance within the Brazilian legal system.

 (d) Jurisdictions where the right to a fair trial has been inferred from the fair criminal trial guarantee

  • In some countries, the right to a fair trial is explicitly guaranteed solely to the accused in criminal proceedings (e.g. the Constitution of India),[52]  yet the courts in these jurisdictions have interpreted these constitutional guarantees extensively to cover civil law cases.[53]
  • Japan also has a similar criminal procedure protection in their Constitution[54] which has now been stretched to encompass a duty of fairness of the procedure also in civil matters.[55]

(e) Approach adopted by some African Countries concerning the right to fair trial in civil cases.

Whereas the universal trend has been to recognize fair trial proceedings in civil cases, some African countries are yet to move with the times even when there are clear provisions on fair trial in their constitutions. On this, I will consider Kenya and Ghana.

Kenya

Although the 2010 Constitution of Kenya contains a clear mention of the right to a fair trial in Art. 50, the Kenya Court of Appeal refused to extend it to cover civil suits or disciplinary proceedings. Their Lordships held in the 2014 case of Judicial Service Commission v. Gladys Boss Shollei & Another as follows: ‘[A] careful perusal of the Constitution shows that Art. 50 (2) … applies solely to criminal trials and not to civil litigation or disciplinary proceedings’.[56]

Notwithstanding the decision, a High Court in Kenya in 2019 in the case of Pinnacle Projects Limited v. Presbyterian Church of East Africa and Another[57] drifted from the fuddy-duddy approach adopted by the Court of Appeal and applied the constitutional guarantee under Article 50 of the Kenyan Constitution to a civil case. His Lordship R. Nyakundi stated thus: “As a minimum guarantee, the right to a fair trial includes a fair trial in civil cases…. It is important that in any judicial process adjudication parties involved be given opportunity to present their case and have a fair hearing before the decision against them is made by the respective judge or magistrate. It is not lost that procedural fairness is deeply ingrained in our administration of justice system”. It remains to be seen in the coming years how persuasive the High Court’s decision will be.

Ghana

The Judiciary of Ghana recently appeared to have charted the path taken by the Kenyan Court of Appeal in the case of Bobie v. 21st Century Construction Co. Ltd and Others.[58] The facts of this case are that while the parties were in court litigating over ownership of their lands at Kasoa and Nyanyano, the Defendants filed a mandamus application in the High Court, Cape Coast praying for an order compelling the Regional Lands Officer to register a number of land instruments in their names. The Land Officer opposed the application on grounds that he found several issues with the documents the Defendants were seeking to register, including the lack of consent by the defendants’ grantors, but he later succumbed to settlement. The High Court granted the mandamus application. 

Nonetheless, the defendants continued to encounter challenges with the plotting and registration of some of their documents so they filed a motion for contempt against the Land Officer for not fully complying with the order of mandamus. The challenge stemmed from the fact that the Regional Lands Officer found that the land had been registered in the name of third parties and he was taking steps to reverse it before he could register the Defendants’ instruments. When the contempt application came on for hearing, the trial Judge ordered the Regional Lands Officer to expunge the names of the third parties already registered in their system. After the Lands Officer had expunged the name of the third party, being the Plaintiff from their system, he eventually wrote to the plaintiff to notify him. 

Some months after receipt of the letter, the Plaintiff issued a writ praying for several reliefs including setting aside the Order of the High Court on the ground of fraud. His reason for alleging fraud was that at the time the defendant applied for the mandamus against the land officer, the defendants and the plaintiff were already in court litigating over the ownership of the lands (for which he the plaintiff had counterclaimed as defendant in the said suit), but the defendants failed to disclose that fact to the court. He also prayed that the order expunging the registration of his document by the court without notice to him be declared void. The Plaintiff lost at the High Court as well as the Court of Appeal. His further appeal to the Supreme Court was also not successful. 

The Supreme Court found no fraudulent act perpetuated by the Defendants for not disclosing that they were already litigating over the ownership of the land in the High Court. On the plaintiff’s prayer for the order of mandamus compelling the Regional Lands Officer to cancel the registration of his documents because he was not notified or heard by the Court, the Apex Court drew a distinction between the right to a hearing one has in a civil case on one side and the right to a fair hearing guaranteed under Article 19 of the Constitution in criminal cases on the other side. His Lordship Pwamang JSC speaking for the Court expressed himself thus “Without intending to lower the great importance of the right to a hearing in civil proceedings in a court or before any quasi-judicial body, it must be pointed out that the right to fair hearing that has been guaranteed by the Constitution is in respect of criminal trials only. Article 19 of the 1992 Constitution, which is headed; Fair Trials, contains elaborate provisions for criminal trials and at paragraph 1 thereof provides as follows: “A person charged with a criminal offence shall be given a fair hearing within a reasonable time by a court’(Emphasis is mine).

The Supreme Court went ahead to state: “By the provisions of Order 55 rule 5 (2) of C.I. 47, the court is given a discretion, where it gets to know of the interest of a non-party in a matter before it, to order that he be given notice or not’. 

Order 55 rule 5 reads:

Notice of Application

5 (1) Notice of the application shall be served on all parties named in the applicant’s affidavit as being directly affected by it 

(2) The court may order that notice of the application shall be served on any person not named as being directly affected by the application in its opinion it is desirable that the person should be given notice”.

My Personal Views

After reading my Lord’s reference to Article 19 one may be misled into thinking that all that is contained in the Article is a guarantee of fair trial in relation to criminal proceedings only, but with respect, the Article appears to talk about civil cases too.

Clause 13 of Article 19 provides:

An adjudicating authority for the determination of the existence of a civil right or obligation shall, subject to this Constitution, be established by law and shall be independent and impartial; and where proceedings for determination are instituted by a person before such an adjudicating authority, the case shall be given a fair hearing within a reasonable time” (My Emphasis).

It can also be inferred from other provisions of the Constitution that the fair trial’s guarantee goes beyond the range of criminal cases. For instance, Article 23 guarantees fair trial in administrative proceedings.

The article reads: “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”.

It can be gleaned from this provision that if administrative bodies and officials are enjoined to act fairly and comply with ‘due process’, then a person cannot be denied fair trial in court simply because the matter is a civil suit and not a criminal case.

Although it is axiomatic that under the Legal Aid Act, a person indicted for an offence punishable by death or life imprisonment is entitled to legal aid[59], a careful reading of the Constitution seems to suggest that legal aid guaranteed under the Constitution for the purpose of fair trial is not limited to criminal cases only.

Article 294 (4) reads: “For the purpose of this article, legal aid shall consist of representation of a lawyer, including such assistance as is given by a lawyer, in the steps preliminary or incidental to any proceedings or arriving at or giving effect to a compromise to avoid or to bring to an end any proceedings”. (My Emphasis).

The above Constitutional provision has been supplemented by section 114 of the Courts Act, 1993[60]  especially sub-sections 1-5 to wit:

(1) The Supreme Court, the Court of Appeal, the High Court or Regional Tribunal may assign a lawyer by way of legal aid to any party to any proceedings before the Court or Tribunal where the Court or Tribunal is of the opinion that it is desirable in the interest of justice that the party should have legal aid and that he is financially unable to obtain the services of a lawyer.

(2) A Circuit Court or District Court may also with the prior approval of the Chief Justice unless otherwise provided in this Act assign a lawyer by way of legal aid to any party in any proceedings before the Court or Tribunal where it appears to the Court or Tribunal desirable in the interest of justice that the party should have legal aid and that he has not sufficient means to enable him to obtain the services of a lawyer.

(3) For the purpose of enforcing any provision of the Constitution a person shall have legal aid in connection with any proceedings relating to the Constitution if he has reasonable grounds for taking, defending, prosecuting or being a party to the proceedings.

(4)  For the purpose of this section, legal aid shall consist of representation by a legal practitioner including assistance in preliminary or incidental matters to any proceedings or arriving at or giving effect to a compromise to avoid or to bring an end to any proceedings.

(5) Any lawyer assigned to a party under this section for his services to that party in relation to the proceeding shall be paid out of the Consolidated Fund such fees as the Minister responsible for Justice may in consultation with the Chief Justice determine” (Emphasis is mine).

The consistent emphasis on ‘any proceedings’ may make one to form the opinion that the framers of the Constitution and law maker did not intend to limit the right to criminal cases only.

  • It is worth noting that under Article 11 of our Constitution, the common law forms part of the laws of Ghana[61], so the natural justice principle of the audi alteram partem (i.e. hear the other side) which is one of the cardinal principles of the common law is also applicable to all proceedings in Ghana and not to criminal trials only; a fact the Supreme Court has constantly emphasized.

For instance, in Republic v. Court of Appeal & Thormford, Ex Parte Ghana Institute of Bankers, Date Bah JSC (As he then was) laconically noted: ‘… This Supreme Court has held several times recently that non-compliance with the audi alteram partem rule results in nullity.”[62]

Similarly, in Republic v High Court Accra, Ex parte Salloum and Ors. (Senyo Coker, Interested Party), Anin Yeboah JSC (As he then was) held thus: “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”[63].  

Aside from contending that he had a right to be heard under Article 19 before his document could be expunged, the plaintiff specifically alleged a violation of the Rule of Natural Justice. Perhaps, if the Supreme Court had guided itself by precedent, its position on the point would have been different. The Apex Court held in Agbosu v. Kotey & Others.[64] that the annulment or cancellation of the documents of a person who has acquired land without notice and a hearing given him or her is contrary to the fundamental and plain rule of natural justice.

The Supreme Court over the years did not find it attractive to differentiate between fair trial in civil cases and criminal cases. Their Lordships seemed to agree that a fair trial applies to all manner of proceedings to the extent of it being a fundamental human right.

For instance, In Re Effiduase Stool Affairs (No 2), Republic v. Oduro Nimapua, President of the National House of Chiefs; Ex Parte Ameyaw II (No. 2), Acquah JSC (as he then was) on behalf of the Supreme Court said as follows: “For one of the basic principles of any civilized system of justice is that a person is entitled to a fair trial free from prejudice.  No system of justice can be effective unless a fair trial to both sides is ensured … This common law right to a fair trial is now elevated to a fundamental right in the 1992 Constitution of Ghana.” [65]

In the same light, Adinyira JSC (as she then was) in the case of the Republic v. Eugene Baffoe-Bonnie & 4 Others in a more elaborate manner made the point thus: 

“The right to a fair hearing is a jus cogens, a peremptory norm of general international law, which is defined in Article 53 of the Vienna Convention of the Law of Treaties as “a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general law having the same character… In addition to the right to fair trial, are other guarantees such as equal access to justice and equality of arms, which require that the parties to the proceedings in question are treated without any discrimination and or distinction based on the nature or mode of the trial in both civil and criminal proceedings. Consequently, we are of the view that access to administration of justice and the enforcement of the constitutional right to fair hearing shall be enforced in a manner that ensures that no individual is deprived, in procedural terms, of his/her right to seek justice”.[66]

Fair hearing literally means – a hearing which is fair and impartial and does not call for obfuscating the concept with strict technical construction to confine it to only criminal cases. Although the Black’s Law Dictionary makes reference to criminal law in the definition of a fair trial, a careful reading will suggest that it is not restricted to criminal trials only. It acknowledges that it is a 17th century concept and defines it as follows: “A trial by an impartial and disinterested tribunal in accordance with regular procedures; especially a criminal trial in which the defendants’ constitutional and legal rights are respected – also termed fair and impartial trial”

The Apex Court referred to Order 55 (5) of C.I. 47 and noted that a Judge has a discretion in ordering a party affected by the order to be served with notice or not. In this case, the Regional Lands Officer opposed the application and indicated that the land had already been registered in the name of other persons. One may be tempted to ask whether the Judge exercised his discretion judicially in accordance with Article 296 of the Constitution by not ordering the application to be served on the interested person before proceeding to order for the cancellation of the registration of his documents.

It is undeniable that a fair or an impartial trial or trial according to due process is necessary in a democratic system. To quote the US Supreme Court in a decision delivered about fifty years ago in the case of Fuentes v. Shevin[67] in relation to the concept’s application in civil proceedings, their Lordships zealously stressed: “For more than a century the central meaning of procedural due process has been clear: Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified. It is equally fundamental that the right to notice and an opportunity to be heard must be granted at a meaningful time and in a meaningful manner’. If one compares the above decision to the view held in Bobie case, can we say the two views are reconcilable? 

Granted there were no specific provisions at all in our Constitution guaranteeing fair trial in civil proceedings (which we now know there are), one may be tempted to know whether their Lordships could not have expediently relied on Article 33 Clause 5, to extend the right to cover civil cases when they found that the right to a fair trial had been guaranteed in criminal trials under Article 19.

Article 33 Clause 5 reads: “(5) The rights, duties, declarations and guarantees relating to the fundamental human rights and freedoms specifically mentioned in this Chapter shall not be regarded as excluding others not specifically mentioned which are considered to be inherent in a democracy and intended to secure the freedom and dignity of man.”

There is the need to emphasize that the spirit that has animated amendment to C.I. 47, Order 32[68] in respect of Case Management Conference, Witness Statement etc. are all attempts to give parties the benefit of fair hearing.

Conclusion

It is evident from the above analysis that a fair trial in civil cases has now become a right in many jurisdictions. It is also clear that there are adequate provisions in our Constitution and other laws of Ghana guaranteeing the right to a fair trial in civil cases. It appears however that from the Bobie decision, a person in a civil case has the right to a hearing, but not that of a fair hearing. There is the temptation to think that the right to a fair hearing in civil cases has now been fashioned to be a privilege. It is my humble view that the Apex Court will adopt the attitude of recognizing fair trial in all proceedings including civil suits in its bid to dispense true justice devoid of technicism. Had there been no explicit provisions in our Constitution at all, I believe the line adopted by Japan and India where they recognized fair trial in civil cases even when their Constitutions had no specific provision on them is worth emulating. Ghana, as a Country with its great democratic credentials in the sub region, has come too far to be left behind by the global train. As Judges, we cannot continue to pride ourselves as custodian of our much-cherished Constitution and the bastion of our proud democracy, if we are unable to recognize the right to a fair hearing in all cases, including civil and administrative proceedings.

ACKNOWLEDGEMENT

I sincerely thank the following:

  • His Lordship Justice Gabriel Pwamang of the Supreme Court of Ghana for his great contributions to the development of our jurisprudence. I am indeed touched by his affable down-to-earth nature and kind felicitations extended to me even when I express my ‘amateurish opinion’ on his well-reasoned decisions.
  • His Lordship Justice Victor Ofoe of the Court of Appeal for being my backbone and proud mentor.
  • His Lordship Sir Dennis Adjei of the Court of Appeal for noticing my embryonic potentials over a decade ago and encouraging me to join the Bench.
  • His Lordship Justice Obeng Manu Jnr. of the Court of Appeal for tutoring me at the Bar till I joined the Bench.
  • His Lordship Justice Kyei Baffour of the Court of Appeal for being an ideal friend right from the day we were sworn in as Judges. 
  • Her Ladyship Justice Janapare Bartel-Kodwo for proof-reading this piece.
  • Mathias Kormivi Dzotsi, a personal friend whose input to this article has been phenomenal.  

[1] Black’s Law Dictionary (Ninth Edition at p. 676).

[2] See Ana Koprivica: ‘The Right to a Fair Trial in Civil Cases’ (Max Planck Encyclopedia of Comparative Constitutional Law (MPECCoL) 2018)

[3] See the Constitution of Portugal of 1976 (as amended in 2005, Art. 20 para 4)

[4] See The Constitution of Angola of 2010 (Art. 29 para 4)

[5] Ian Langford, ‘Fair Trial: The History of an Idea’, Journal of Human Rights available online

[6] Bingham T, The Rule of Law (Penguin 2010)

[7] Clayton, R, Tomlinson, H, Fair Trial Rights (OUP 2010)

[8] Ibid 

[9] Ibid 

[10] Ibid 

[11] See Article 14 (3) of the ECHR

[12] See Footnote 2

[13] Langford, I, ‘Fair Trial: The History of an Idea’ (2009) 8 Journal of Human Rights 37.

[14] See Footnote 2.

[15] Jackson, P, Natural Justice (2nd Edn. Sweet & Maxwell, London 1973)

[16] Bagnall, R. et al. The Encyclopedia of Ancient History. Wiley-Blackwell, 2012

[17] See Footnote 2.

[18] Hertig Randall, M, ‘Magna Carta and Comparative Bills of Rights in Europe’ (2015) Magna Carta Trust Articles 24

[19] Janis, MW, Key, RS, Bredley, AW, European Human Rights Law: Text and Materials (OUP 2008)

[20] Cappelletti, M, ‘General Report’ in Cappelletti, M and Talon, D, Fundamental Guarantees of the Parties in Civil Litigation (Giuffre 1973)

[21] ibid

[22] Doebbler, Curtis (2006), Introduction to International Human Rights Law, CD Publishing p. 108

[23] See the Constitution of Bulgaria 1991 as amended in 2007, Ch. II, Article 31, para 4

[24] The Constitution of the Republic of Croatia 1991 as amended in 2010, Part III, Ch. 2, Articles 29, 30 & 32

[25] The Constitution of the Republic of Serbia 2006, Art. 32

[26] The Constitution of the Republic of Romania 1991 as amended in 2002, Title II, Ch. 1, Art 213

[27] The Constitution of the Bosnia and Herzegovina 1995 as amended in 2009, Art. II, para 3

[28] The Federal Constitution of the Swiss Confederation 1999 as amended in 2014, Art 29 

[29] The Constitution of the Republic of Lithuania Oct 25 1992, Arts. 30 & 31

[30] The Constitution of Hungary October 23 1989 as amended on January 1, 2012; Art. 57

[31] See Suit Motu No. 4 of 2010, PLD 2012 SC 553 (Pakistan)

[32] See para 27

[33] Banderin, M, International Human Rights and Islamic Law (OUP 2003)

[34] See Right of access to Justice (in Czech Republic: Art 36 para 1-Charter of Fundamental Rights and Freedoms of the Czech Republic

[35] Hollander 27

[36] The Constitution of Spain, Art 24 paras 1 & 2 STC 46/1982

[37] The right to be heard ( The Constitution of the Federal Republic of Germany, Art. 103, para 1 

[38] The Constitution of Portugal, Arts 20 & 32

[39] The Human Rights Act 1998 received Royal Assent on 9 November 1998 and came into force on 2 October 2000. Its aim was to incorporate into UK law the rights contained in the European Convention on Human Rights. 

[40] See 1998 HRA, Sec. 1 (3) Schedule 1.

[41] The Charter contains the ‘principles of fundamental Justice in the 1982 Constitution of Canada.

[42] Sharpe, RJ, Roach, K, The Charter of Rights and Freedom (Irwin Law 2009)

[43] See Chapter 2 Bill of Rights Section 34

[44] See the Fifth and Fourteenth Amendments, Sec. 1 of the US Constitution of March 4, 1789 (as amended on May 5, 1992).

[45] Also called the Bill of Rights

[46] Dimitrakopoulos, G, Individual Rights and Liberties under the US Constitution – The Case Law of the US Supreme Court (Brill 2007)

[47] In Re Murchison 339 US 33, 136 (1955) (US)

[48] United Supreme Court Joint Anti-Fascist Refugee Committee v. McGrath, 341 US 123 (1951) 163 (US)

[49] US Supreme Court Goss v. Lopez, 419 US 565 (1975) 577 (US)

[50] Kuckes, N, ‘Civil Due Process, Criminal Due Process’ (2006) 25 Yale Law & Policy Review 8.

[51] The Constitution of the Federal Republic of Brazil on October 5, 1988 (As amended in 2015) – Title II, Ch. 1, Article 5 LIV

[52] The Constitution of India, November 26, 1949 (As amended in 2015), Part III, Article 2.

[53] See the cases of Sheela Barse v. Union of India (1988) 4 SCC 226; Anita Kushwaha v. Pushap Sudan (2016) 8 SCC 509; Hussainara Khatoon v. State of Bihar (1980) 1 SCC 81; Bri Mohan Lal v. Union of India and Ors. (2012) 6 SCC 226.

[54] See Article 31 & 32 of the Constitution of Japan

[55] Levin, MA ‘Civil Justice and Constitution: Limits on Instrumental Judicial Administration in Japan’ (2011) 20 Pacific Rim Law & Policy Journal 265

[56] Judicial Service Commission v. Gladys Boss Shollei and Another [2014] EKLR (Kenya)

[57] Pinnacle Projects Limited v. Presbyterian Church of East Africa, Ngong Parish & The Presbyterian Foundation (2019) eKLR

[58] Bobie v. 21st Century Construction Co Ltd and Others (J4/5/2014) [2016] GHASC 72 (09 March 2016)

[59] See Section 24 (3) of the Legal Aid Act, 1997 (Act 542)

[60] Act 459

[61] See Article 11, Clauses 1 (e) & (2)

[62] Republic v. Court of Appeal & Thormford, Ex Parte Institute of Bankers (2011) 2 SCGLR 941

[63] Republic v. High Court Accra, Ex parte Salloum and Others (Senyo Coker, Interested Party) (2011) 2 SCGLR 574 at p. 585. 

[64] Agbosu v. Kotey & Ors. [2003-2005] 1 GLR 685, S.C at Holding 10.

[65] In Re Effiduase Stool Lands (No. 2), Republic v. Oduro Nimapau, President of the National House of Chiefs, Ex parte Ameyaw II (No. 2) (1998-99) SCGLR 670

[66] Republic v. Baffoe-Bonnie and Others (J1/06/2016) GHASC 40 (07 June 2018)

[67] Fuentes v. Shevin, 407 US 67 (1972) 80 (US)

[68] The High Court Civil Procedure Rules, 2004 (C.I. 47) AS amended by C.I. 87.

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    Clement Gyawu 4 months

    The Supreme Court appears to have lost sight of the principle of impari materia in the application of the law.

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    Joe Baah 4 months

    Brilliant exposition, thank you sir for the illumination and the time taken off your busy schedule to educate us

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