Akufo-Addo and Others v. Quarshie Idun and Others  GLR 667–688
With the approval of the Chief Justice, certain circulars were issued to all the courts in the country, which were to the effect that courts should not grant an audience to any lawyer whose name is not found in a list of lawyers who have actually taken out licences. The plaintiffs-respondents instituted an action in the High Court against the Chief Justice, the Judicial Secretary, and the General Legal Council for a declaration that, by the issue of the circular, lawyers were being denied their right of audience as barristers in the courts. They also sought an interim injunction to prevent the appellants herein from carrying out the orders in the circulars. The injunction was granted. The respondents then appealed to the Court of Appeal.
Before the case could be heard, the plaintiffs-respondents raised a preliminary objection to the constitution of the bench. They contended that since the Chief Justice is a party to the suit, he cannot be the one to empanel the court of appeal, as doing so will be against the natural justice rule that a person cannot be a judge in his own cause.
Whether the Chief Justice should be allowed to constitute the bench for this appeal hearing, even though he is a party to the appeal
Arguments of the Plaintiffs-Respondents:
The Chief Justice is the statutorily recognised person to constitute the bench, and he will be allowed to do so even if it conflicts with the principles of natural justice.
Under the current law, it is the function of the Chief Justice to constitute the benches of this court, and he shall continue to perform that function if he remains in the office and is in the country. The only situation in which another person may be nominated to perform his functions is when he is unable to do so due to illness or absence from the country. In the present case, it cannot be requested that another person other than the Chief Justice perform a function that is attached to his office when he can perform those functions.
The fact that the Chief Justice is the one to invite a judge from the High Court to form part of the panel of judges in the present appeal does not mean that the invited judge will be biased. Amissah J.A. explained:
The Courts Decree, 1966, has entrusted the power to invite High Court judges to sit in this court to the Chief Justice. It was not suggested that those judges to whom the invitation was extended thereby acquired an interest in the cause of the defendants. On the other hand the objection was so technical in character that counsel said in the course of argument that if the same judges were asked by some other person to constitute this bench they would be quite satisfied. Judges are sworn to do justice between parties without fear or favour. This oath transcends mere invitations or even appointments to sit in a particular case. Were it otherwise, no one would dare, from fear of bias, to bring an action against, government, because the very appointment of the judges is made by government.
Essentially, and also in response to the respondents’ argument that the rules of natural justice will prevail over statutory provisions, his lordship noted that "where a statute clearly enjoins a person to perform an act, he has to do it even if its performance is incompatible with the strict rules of natural justice… We are of the opinion that where the clear terms of a statute conflict with natural justice it is the latter which has to yield." He concluded that:
this present case presents a situation of necessity where the person to exercise the power to constitute the bench hearing the appeal is also a party to the appeal. As no other may perform his duties for him, the objection on the ground of natural justice cannot be sustained. We accordingly dismissed it.
An exception to the nemo judex in causa sua rule is that where a judge has a statutory duty imposed on him, he will be allowed to perform the statutory duty even if doing so will conflict with the rule that a person cannot be the judge of his own cause. It is still arguable whether empanelling a court is tantamount to being a judge in one’s own cause.