AYEBI, JA

 The sole issue for resolution in this appeal is whether or not trial judge conducted the trial in accordance with the provisions of Rule 1 of Order 36 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) on “Proceedings at the Trial”. That rule is headed “Failure to attend at trial”. The rule provides:

“Subrule (1): where an action is called for trial and all the parties fail to attend, the trial judge may strike the action off the trial list.

(2): Where an action is called for trial and a party fails to attend, the trial judge may

(a) where the plaintiff attends and the defendant fails to attend, dismiss the counterclaim if any, and allow the plaintiff to prove the claim,

(b) where the defendant attends and the plaintiff fails to attend, dismiss the action and allow the defendant to prove the counterclaim, if any, or

(c) make such other order as is just”.

In view of the fact that the issue to be resolved is procedural rather than factual, the gist of the facts of the case will suffice. In 2006, the 1^st defendant/appellant sold his house No. Plot 44 Block “B”, East Tafo, Kumasi with sitting tenants to the plaintiff/respondent. The 2^nd defendant, sister of the 1^st defendant/appellant also lived in a two bedroom and a hall in the house free of charge. The 1^st defendant/appellant introduced the plaintiff/respondent to the tenants as their new landlord. The tenants atoned tenancy to the plaintiff/respondent and he collected two years rent advance from some of them.

As regards the 2^nd defendant, the 1^st defendant/appellant rented a new apartment for her and led her in. Although 2^nd defendant agreed to move into the new apartment, she failed to do so after a reasonable time. In April 2008 therefore, the 1^st defendant/appellant and plaintiff/respondent jointly sued the 2^nd defendant at the District Court, Kumasi for recovery of possession of the two bedrooms in her possession. But before then on 22^nd February 2008, the plaintiff sued the 1^st defendant in this action for the recovery of the purchase price of the house for failure to yield up possession of the house despite repeated demands.

However, in stating the number of the house bought in the writ of summons, the plaintiff described it as House No. Plot 23 Block 1, Asawasi Kumasi. The 1^st defendant, who by himself entered appearance to the suit, denied that he sold the house with the number stated in the writ of summons to the plaintiff because he had never owned that house. He counter-claimed for damages of GH¢1,000.00 for defamation when the plaintiff caused his arrest on an absconding warrant. The 1^st defendant also attached to his pleadings the District Court writ of summons and statement of claim.

On 12/02/09, the present counsel entered an appearance for the 1^st defendant. Thereafter, the 2^nd defendant through her counsel applied to be joined to the suit on the ground that she personally acquired the building plot and put up the house sold to the plaintiff by the 1^st defendant. She thus claimed the house as the bona fide owner. Although 1^st defendant opposed the motion, it was granted and the suit was adjourned to 14/06/09 for hearing. On 21/07/09, the plaintiff filed a motion ex parte to serve the order for joinder by substituted service. Although it was an ex parte motion, the court kept on ordering hearing notice on the defendant until the motion was granted on 24/02/11. Then followed another motion by the plaintiff to amend the writ of summons and statement of claim to state the correct number of house sold and to recover the purchase price from the two defendants jointly and severally. The motion was granted on 17/07/2011 in the absence of defendants. The suit was adjourned sine die (page 51 of Record of Appeal).

On 18/05/2012, a motion ex parte for substituted service of the amended writ of summons and statement of claim on 1^st defendant was granted. The order and the process were to be posted and to remain amongst others on the door post of the 1^st defendant for 14 days. The suit was not adjourned to any date. But on 4^th March 2013, the court sat and heard the evidence of the plaintiff in the absence of the 1^st defendant and his counsel. But plaintiff did not go far in his evidence because his counsel asked for an adjournment to produce the tenancy agreements he entered into with the sitting tenants. The suit was adjourned to 1/04/13 without an order for hearing notice on the 1^st defendant and his counsel.

The suit however did not continue on that day because the new counsel for 2^nd defendant filed a notice of change of solicitor and the plaintiff again filed a motion for leave to amend the reliefs endorsed on the writ of summons. On 16/04/13, plaintiff’s motion was granted.  That day, Francis Coffie for Obeng Manu Jnr. For 1^st and 2^nd defendants was present. The suit was adjourned to 10/05/13 for hearing. But on 16/05/13, 2^nd defendant’s counsel filed a motion for enlargement of time to file a statement of defence.

A copy of the motion and its annexures was not directed to be served on the 1^st defendant or his counsel.

But on 24^th May 2013, the 2^nd defendant’s motion was granted in the absence of the 1^st defendant and/or counsel. The suit was adjourned to 4/06/2013 again without a hearing notice ordered to be served on the 1^st defendant and/or counsel. But it was not until 17^th June 2013 that the court sat and the plaintiff/respondent continued his evidence, as usual in the absence of the 1^st defendant and/or his counsel. Thereafter, the court heard the evidence of the 2^nd defendant and her witnesses on different dates. There was never a day that the court ordered hearing notice to be served on either the 1^st defendant or his counsel until judgment was delivered on 30^th May, 2014.

From the record, there is a bailiff’s proof of service that on 30^th May 2013, 2^nd defendant’s statement of defence was served on counsel for the 1^st defendant. That appeared to be the last process served on the 1^st defendant’s counsel before the judgment a year later. Rightly as observed by the trial judge, the 1^st defendant did not take part in the trial. He gave no reason or hasard any reason. In the judgment, the trial judge held that the disputed house was jointly owned by the 1^st defendant and his sister, 2^nd defendant and therefore the 1^st defendant did not have capacity to sell it to the plaintiff. He set aside the sale and entered judgment for the plaintiff on his alternative claim of recovery of the purchase price of the house against the 1^st defendant only.

The entry of judgment was served on the 1^st defendant by substituted service. He appealed against the judgment on five substantive grounds. But in arguing the grounds of appeal counsel abandoned grounds (2) to (5) and rested his case on ground (1) only. The abandoned grounds of appeal are struck out. The complaint in the said ground (1) against the judgment is that:

“Neither the 1^st defendant himself or (sic) his counsel were served with Hearing Notice either prior to the commencement of hearing or during the course of hearing thus breaching the Rules of Natural Justice by denying the 1^st defendant the right to be heard due to non-notification of trial”.

The ground of appeal as it is framed is not too elegant as it appeared to be narrative and or argumentative contrary to rule 8(5) of C.I. 19, the Court of Appeal Rules. But then the import of the ground of appeal is clear to us and we will countenance it.

We understand the complaint of the 1^st defendant/appellant to mean that he was denied the right to be heard and was in fact not heard. It is a breach of the audi alteram partem rule if established. The abandoned grounds of appeal attacked the merits of the case.

However, the principal relief sought by the 1^st defendant/appellant from us is to set aside the judgment and order a re-trial of the suit. In view of the consistent stand of our courts that the breach of the rule rendered the proceedings a nullity, it serves no useful purpose to argue the merits of the case. In the case of the Republic vrs Court of Appeal, Anthony Thomford, Ex parte Ghana Chartered Institute of Bankers [2011] 39 GMJ 151, Atuguba JSC held that:

“The rule of audi alteram partem sounds in nullity. It is trite law that those rules are regarded as fundamental and jurisdictional and that the courts will read them into statutes though they be silent as to them”.

Similarly, in the Republic vrs The High Court, Accra; Ex parte Salloum & Ors. [2011] 36

GMJ 1, the Supreme Court per Anin Yeboah JSC said:

“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”.

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. And in our 1992 Constitution, Article 19 on “Fair Trial” echoed the same concept.

In our unreported judgment in Civil Appeal No. H1/54/2016 titled Raphael Cubagee [petitioner/appellant] vrs The National Democratic Congress [respondent/respondent], dated Tuesday, 27^th June 2017 where the trial judge denied the petitioner/appellant who was unrepresented, the right of reply to the submissions of the respondent/respondent because he was not a lawyer, we discussed the meaning of audi alteram partem rule of natural justice and its scope. It is the same complaint against the judgment in this appeal too.

In that case, I referred to the three features of natural justice as identified by Lord Hudson in Ridge vrs Baldwin [1963] 2 All ER 66 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”.

By the provisions of the 1992 Constitution the courts and tribunals by their orders and decisions have the power to ascertain the rights of litigants, deprive persons found culpable of their liberty and/or impose financial burdens on persons found liable. The audi alteram partem rule thus enjoins the court/judge to hear both sides, give each party a chance to state his case and make sure that any person who will or may be affected by the decision has a right to “his day in court”. The observance of the principle is the foundation of the popular saying that justice must not only be done but must manifestly be seen to be done.

In the Cubagee case (supra), I also referred to the case of Philadelphia Co. vrs Securities and Exchange Commission [1948] 175 Fed. 2d 808 at 817, where the Supreme Court based on the Constitution of the United States of America and the Act of 1946 said in reference to the audi alteram partem rule that:

“Adjucatory action cannot be validly taken by any tribunal, whether judicial or administrative, except upon a hearing wherein each party shall have opportunity to know of the claims of his opponent, to hear the evidence introduced against him, to cross-examine witnesses, to introduce evidence in his own behalf and to make argument. This is a requirement of the due process clause of the Fifth Amendment of the Constitution”.

In this appeal the specific complaint of the 1^st defendant appellant is that no hearing notice was served on him before the commencement of the trial. Secondly, there is no proof that the order for postage of copies of the amended writ of summons together with the amended statement of claim were actually posted at the places ordered by the court. Also during the hearing of the case, no notice was served on him indicating further hearing of the case. It is submission of the 1^st defendant/appellant that the audi alteram partem rule has been violated in respect of him during the trial because apart from not knowing the plaintiff’s case against him as contained in the amended process, he was not notified of the commencement of the trial and the continuation of the trial up to the date of judgment.

I have noted from the record of appeal that the plaintiff/respondent applied and amended his writ of summons and statement of claim twice. Aside of that, there were other motions by the 2^nd defendant for joinder and for enlargement of time to file statement of defence. In all these, 1^st defendant and his counsel were present at the hearing of 2^nd defendant’s motion for joinder (page 29 of record of appeal) and 1^st defendant’s counsel alone was present at the hearing of the plaintiff/respondent’s second motion for leave to amend the writ of summons (see page 71 of Record of Appeal).

I also note that in all cases, the plaintiff/respondent’s amended processes were served on the 1^st defendant/appellant by substituted service. In the same way, 2^nd defendant’s processes were served on the 1^st defendant/appellant by substituted service. Although the processes were ordered to last 14 days when posted, no date for hearing was indicated in the order and no hearing notices were ordered either.

From the record, plaintiff/respondent opened his case on 4^th March 2013 before Justice Amissah-Koomson in the absence of the 1^st defendant/appellant and or counsel but could not complete it. But before then the last sitting of the court was on 18^th May 2012 with Justice E. Gyinae presiding. On that day, the court granted plaintiff/respondent leave to serve the amended writ of summons and statement of claim on 1^st defendant/appellant by substituted service. There was no sitting by the court until the day the plaintiff/respondent opened his case. From the original docket, I noticed it was counsel for the plaintiff/respondent who applied for the case to be fixed for hearing but no hearing notice was served on the 1^st defendant as requested.

On that day, the hearing was adjourned to 1^st April 2013 for continuation. But the hearing could not continue because the plaintiff/respondent again filed a motion for leave to amend his writ of summons while the 2^nd defendant also filed for enlargement of time to file statement of defence. On 24^th May 2013, 2^nd defendant’s motion was granted in the absence of the 1^st defendant/appellant. The suit was also adjourned to 4^th June 2013 without a hearing notice on the 1^st defendant/appellant or counsel.

On that date, the court did not sit. Rather on 17^th June 2013, the court sat and plaintiff/respondent continued his evidence in the absence of the 1^st defendant/appellant. The suit was adjourned on that day to 26^th June 2013 but heard on 24^th July 2013 and thereafter on other days. In all cases the 1^st defendant/appellant was absent but there was no order for hearing notice on him. This is the picture of the trial seen from the record of proceedings.

The general response of the plaintiff/respondent to the accusation by the 1^st defendant/appellant that he had been denied the right to be heard is that, he failed to take advantage of his right to be heard and so he cannot turn around and invoke the principle of natural justice in his favour. In support of this response, counsel for the plaintiff/respondent cited the cases of the Republic vrs High Court (Fast Track Division);

Ex parte State Housing Co. Ltd. (No.2) Koranteng-Amoako Interested Party [2009] SCGLR 185 at 190; Republic vrs High Court (Human Rights Division), Accra; Ex parte Josephine Akita (Mancell – Egala and A-G, Interested Parties) [2010] SCGLR 374 and Others. At page 384 in the Egala case, 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”.

That position of the law is trite knowledge. For in In Re West Coast Dyeing Industry Ltd; Adams vrs Tandoh [1984/86] 2 GLR 561, CA, the court held that: