Fair trial on altar of speedy trial
Before a man is condemned in criminal trial, he must be given the opportunity to, and in fact be heard.
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Probably to be more aptly put, before he is also found liable in a civil case, he must be heard.
The right to be heard must be viewed within the context of expedited trial and this delicate balance between the two; expedited trials and fair hearing to both parties, must be carefully navigated in a way that does not place expedited trials over fair opportunity for trial.
The wheels of justice actually grind slowly.
This is juxtaposed with many legal principles, and public policy thinking including the one which says that "it is in the interest of the Republic that litigation must end, rendered more fancifully in Latin, interest republica ut sit finis litium".
The case of The Republic Vs Baffour Bonnie enhanced disclosures and the amendment of the High Court rules to introduce case management in all civil cases.
This is certainly a commendable feat and needs to be consolidated and improved upon.
Troubling situation
However, a troubling situation is emerging where judges under the guise of case management are imposing short-time limits for trials.
This is not only putting parties themselves under undue pressure and unnecessary costs but the lawyers are having little time to strategise.
It is true that lawyers have a theory of their case right from the onset, but the implementation can be complex as strategies may change at some stage during the trial.
Despite the recent explosion in the number of lawyers produced yearly in Ghana, there are still many very small law firms with few lawyers, a situation which makes lawyers overstretched.
There is very little time for too much.
The point being underscored is that the lawyers including those from the Attorney General's department may have several other equally important engagements related to their practice.
It is therefore inconsistent with fair trial for courts to impose day-to-day hearings on parties and their lawyers.
Apart from the challenges highlighted, a rushed trial has the potential to affect the quality of the conduct of a party's case by a lawyer.
This can result in miscarriage of justice.
Stay of proceedings
Where there is an interlocutory ruling which may be subject to an appeal, there may be the need, in the interest of justice, for the judge to stay proceedings for the interlocutory appeal to be dealt with.
Unfortunately, some judges have taken the view that, unless, there is an order staying proceedings, it will continue the hearing of the substantive matter.
Sometimes, because of the short hearing days that are imposed, the interlocutory appeal may still be pending when the judge may have finished the main suit and given adverse judgement.
What is the use of filing a stay of proceedings and not having the opportunity to be heard on that while the main suit from which it arises is moving at the speed of light?
To what end then?
Discretion should be taken away from judges in such circumstances as this aligns with fair trial.
It should be a rule of thumb not opened for exercise of discretion to grant a stay of proceedings when there is evidence that it has been filed.
The mere filing and service on the other party should constitute a stay of proceedings.
A process such as a stay of proceedings filed by a lawyer probably under difficult circumstances should not be seen as an attempt to stall an ongoing trial or to delay it.
It should be accorded the necessary place.
It should be noted that from filing a court process/paper between the counter and registry of the court, a number of administrative actions are triggered, visibly, the need to make entries and assigning to a bailiff to serve.
By the returned date, service may not have been effected and so hearing of a stay would not take place.
Yet, the trial court is proceeding with short trial days with practically no reasonable adjournment.
This practice of sacrificing quality trial on the altar of expedited trial must be looked at again.
Wheels of justice
Further, under the guise of finishing cases early, some judges also under pressure rush through writing judgements and fail to consider evaluating relevant evidence.
Of course, those could constitute grounds appeal or sometimes even invoking the supervisory powers of the court, but why go through that, if a bit of time would have prevented that situation?
It is an accepted truism that, the wheels of justice grind slowly but grinds eventually to a halt.
Again, it is a persuasive guiding principle, to judges, that it is a better for 100 accused persons to go free than convict one innocent person.
The Ghana Bar and other Bar Associations are encouraged to take interest in this trend which is emerging so fast and threatening to undermine the rules of fair hearing.
The writer is a legal practitioner and lecturer at the University of Professional Studies, Accra (UPSA) Law School
Writer’s email: [email protected]
