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Judges -
Serving judges - Allegations of
corruption - Capacity - 1992
Constitution Article 146 (3) -
whether or not there was a prima
facie case made against each of
the Plaintiffs - whether or not
1st Defendant was a
corporate body - Whether or not
the removal of the Plaintiffs as
Justices of the Superior Court
are inconsistent with and in
contravention of Article 146 (3)
of the 1992 Constitution -
Whether or not 1st
Defendant lacks the legal
capacity to file the said
petitions.- Whether of not said
petitions are vitiated by fraud
- Whether or not balanced
assessment of the competing
public interests in Article
21(1) (a) of the 1992
Constitution
HEADNOTES
The three
Plaintiffs herein are Justices
of the High Court of Justice.
The 1st Defendant
purports to be a company limited
by shares and registered under
the laws of Ghana. The 2nd
Defendant is the head of the
Judiciary of Ghana and
responsible for the
administration and supervision
of the Judiciary while the 3rd
Defendant is the principal legal
advisor to the Government of
Ghana. The Plaintiffs and others
were summoned to where they were
each given letters notifying
them that the 1st
Defendant had petitioned the
President of the Republic of
Ghana for their removal from
office as Justices of the
Superior Court on allegations of
bribery. the Plaintiffs were to
submit their responses to the
allegations to determine whether
or not there was a prima facie
case made against each of the
Plaintiffs. Meanwhile the
Plaintiffs embarked upon their
own investigations into the
backgrounds of the petitioner
ostensibly from the Registrar
General’s Department and the
Social Security and National
Insurance Trust (SSNIT) as to
whether or not 1st
Defendant was known to them as a
corporate body. The outcome of
the investigations was that the
1st Defendant is not
a body corporate registered
under the Companies Act, 1963,
Act 179. The records at the
Registrar General’s Department
allude to the existence of a
different company, known as
Tiger Eye Pl Media Ltd but not
the 1st Defendant.
The result of the search from
the SSNIT was equally
unfavourable as they had no
records of Tiger Eye Pl or Tiger
Eye Pl Media Ltd.
HELD In the
light of this finding it is
obvious that the choice of the 1st
defendant as a party in this
action was not well informed nor
founded. The submission by the
plaintiffs’ that the 1st
defendant is an un-incorporated
body and therefore incompetent
to submit a petition to the
President is not only
dis-ingenious, it is a ruse to
sway us from the real issue. We
find the submission unwarranted
and dismiss same. In the light
of the foregoing conclusion, no
useful purpose would be served
in considering the other issues
raised by the applicants as
these have become otiose. The
plaintiffs’ action fails and is
dismissed.
STATUTES REFERRED TO
IN JUDGMENT
Companies Act, 1963, Act 179.
Supreme Court Rules, 1996, CI
16,
Evidence Act, (1975), Act 323
CASES REFERRED TO IN JUDGMENT
BOOKS REFERRED TO IN JUDGMENT
Black’s Law Dictionary, Eight
Edition,
DELIVERING THE LEADING JUDGMENT
AKAMBA, JSC
COUNSEL
NII KPAKPO ADDO WITH HIM
STEPHEN OPOKU FOR THE
PLAINTIFFS
KISSI ADJEBENG WITH HIM DENNIS
FRIMPONG ADJEBENG FOR THE 1ST
DEFENDANT
MRS. AFRIYIE ANSAH (CHIEF STATE
ATTORNEY) WITH HER ZEINAB
AYARIGA (ASSISTANT STATE
ATTORNEY) FOR THE 2ND
AND 3RD DEFENDANTS
JUDGMENT
AKAMBA, JSC
PROLOGUE
This case
involves serving judges on
issues pertaining to allegations
of corruption of office. Owing
to the nature of the case, it is
with the greatest trepidation
that we sit in judgment over our
colleagues, knowing what
consequences may flow should
they be found culpable.
However, it is not for nothing
that ‘Lady Justice’ has been
depicted wearing a blindfold
signifying objectivity; in that
justice is, or should be meted
out objectively, without fear or
favour, regardless of money,
wealth, fame, power or identity.
We are therefore obliged to
adhere to our judicial oaths to
do justice according to law and
nothing else.
BRIEF FACTS
The three
Plaintiffs herein are Justices
of the High Court of Justice.
The 1st Defendant
purports to be a company limited
by shares and registered under
the laws of Ghana. The 2nd
Defendant is the head of the
Judiciary of Ghana and
responsible for the
administration and supervision
of the Judiciary while the 3rd
Defendant is the principal legal
advisor to the Government of
Ghana. Sometime in early
September 2015, the Plaintiffs
and others were summoned to the
office of the 2nd
defendant where they were each
given letters notifying them
that the 1st
Defendant had petitioned the
President of the Republic of
Ghana for their removal from
office as Justices of the
Superior Court on allegations of
bribery. The letters requested
the Plaintiffs to submit their
responses to the allegations
contained in the 1st
Defendant’s petition by 14th
September 2015 to enable the 2nd
Defendant determine whether or
not there was a prima facie case
made against each of the
Plaintiffs. Meanwhile the
Plaintiffs embarked upon their
own investigations into the
backgrounds of the petitioner
ostensibly from the Registrar
General’s Department and the
Social Security and National
Insurance Trust (SSNIT) as to
whether or not 1st
Defendant was known to them as a
corporate body. The outcome of
the investigations was that the
1st Defendant is not
a body corporate registered
under the Companies Act, 1963,
Act 179. The records at the
Registrar General’s Department
allude to the existence of a
different company, known as
Tiger Eye Pl Media Ltd but not
the 1st Defendant.
The result of the search from
the SSNIT was equally
unfavourable as they had no
records of Tiger Eye Pl or Tiger
Eye Pl Media Ltd.
Against
the foregoing background, the
three Plaintiffs issued an
amended writ of summons on 1st
March 2016 seeking from this
court the following seven
reliefs:
1. A declaration that
the petitions that were
submitted to the President of
Ghana for the removal of the
Plaintiffs as Justices of the
Superior Court are inconsistent
with and in contravention of
Article 146 (3) of the 1992
Constitution as there is no
identifiable petitioner armed
with the said petitions.
2.
A declaration that the
petitions that the 1st
defendant purportedly submitted
to the President of Ghana for
the removal of the plaintiffs as
Justices of the Superior Court
are inconsistent with and in
contravention of Article 146 (3)
of the Constitution as the 1st
Defendant does not exist in fact
and as such lacks the legal
capacity to file the said
petitions.
3.
A declaration that the
petitions that the 1st
defendant purportedly submitted
to the President of Ghana for
the removal of the Plaintiffs as
Justices of the Superior Court
are inconsistent with and in
contravention of Article 146 (3)
of the 1992 Constitution as the
said petitions are vitiated by
fraud.
4.
A declaration that the
President’s referrals of the 1st
Defendant’s petitions to the 2nd
Defendant to determine whether
there is a prima facie case
against the Plaintiffs are
inconsistent with and in
contravention of Article 146 (3)
of the 1992 Constitution as the
1st Defendant does
not exist in fact and as such
lacks the legal capacity to file
the said petitions.
5.
A declaration that the 2nd
Defendant’s request to the 1st
and 2nd Plaintiffs to
respond to the petitions filed
by the 1st Defendant
for the determination of whether
there is a prima facie case
against the 1st and 2nd
Plaintiffs is inconsistent with
and in contravention of Article
146 (3) of the 1992 Constitution
as the 1st Defendant
does not exist in fact and as
such lacks the legal capacity to
file the said petitions.
6.
A declaration that the
determination by the 2nd
Defendant that there is a prima
facie case for the 3rd
Plaintiff to answer is
inconsistent with and in
contravention of Article 146 (3)
of the 1992 Constitution as the
1st Defendant does not exist in
fact and as such lacks the legal
capacity to file the said
petitions.
7.
Any other order (s) and
directions that this Honourable
Court may deem fit to make to
give effect to the declarations
made herein pursuant to Article
2 (2) of the 1992 Constitution.”
PLAINTIFFS’ CASE
The facts
giving rise to the Plaintiffs’
writ are devoid of any
complexities. It is the case of
the Plaintiffs’ that the
petition of the 1st
Defendant, (Tiger Eye Pl)
seeking their (Plaintiffs’)
removal from office as Justices
of the Superior Court of Ghana
is inconsistent with and in
contravention of Article 146 (3)
of the 1992 Constitution. The
Plaintiffs’ reason for this
conclusion is that the 1st
defendant does not exist in fact
and law and therefore did not
have the legal capacity to
submit any petition/s to the
President for their removal from
office. The Plaintiffs’ further
contend that the 1st
defendant’s petition was a fraud
on the 2nd Defendant,
the Plaintiffs’, Ghanaians and
the International community as a
whole since it (1st
Defendant) had no capacity to
act as it did. According to the
Plaintiffs’, there are no
records of the 1st
Defendant’s registration as a
company at the Registrar
General’s office. The records at
the Registrar General’s office
rather attest to the
registration of a company called
Tiger Eye Pl Media and Stallion
Tiger Ltd with Anas Aremeyaw
Anas and another as Directors
with their registered office as
‘Apomah House, Dzorwulu’, which
is different from the 1st
Defendant Company. For the
foregoing reasons, the
Plaintiffs’ invoke the original
jurisdiction of this court to
interpret the true and proper
meaning of article 146 (3) of
the 1992 and in particular, as
to whether a non-existent entity
in law can purport to submit a
petition under article 146 (3)
of the 1992 Constitution. The
Plaintiffs’ further seek a
determination, (based upon the
assumption that the 1st
Defendant lacked the requisite
capacity) as to whether the
President and the 2nd
Defendant can validly act on a
petition of/from a non-existent
Petitioner who may have acted
fraudulently.
DEFENDANTS’ CASE
The
defendants’ take issue with the
Plaintiffs’ on the basis upon
which they (Plaintiffs’)
initiated the writ. The
Defendants’ contend that the
Plaintiffs’ have no cause of
action given that the
Plaintiffs’ action is premised
upon a mistaken belief that the
petition for their removal was
made by the 1st
Defendant. The petition,
according to the defendants was
made by Anas Aremeyaw Anas in
his personal capacity as a
citizen and a lawyer and signed
by him on a letterhead of the 1st
defendant company. Nowhere in
the letter did the petitioner
state that the petition was made
on behalf of the 1st
defendant or any company for
that matter.
ISSUES FOR DETERMINATION
The
parties filed independent issues
having failed to agree on a
joint memorandum of issues. This
is in compliance with Rule 50
(3) of the Supreme Court Rules,
1996, CI 16, which provides
that:
“50 (3)
Where the parties cannot agree
on the issues each party may
file that party’s own memorandum
of issues.”
The 1st,
2nd and 3rd
plaintiffs filed the following
issues on 29/04/16 for
determination:
“1. Whether the 1st Defendant,
Tiger Eye P.I, existed as a
limited liability company at all
time material to its submission
of the petitions to the
President for the removal of the
Plaintiffs as Justices of the
Superior Court pursuant to
Article 146 (3) of the 1992
Constitution.
2. Whether the 1st
Defendant had the legal capacity
to submit the petitions to the
President for the removal of the
Plaintiffs as Justices of the
Superior Court pursuant to
Article 146 (3) of the 1992
Constitution.
3. Whether the 1st
Defendant’s petitions for the
removal of the Plaintiffs as
Justices of the Superior Court
pursuant to Article 146 (3) of
the 1992 constitution are
vitiated by fraud.”
The 1st
Defendant for his part filed the
following issues on 04/05/2016:
i.
Whether the petition
submitted to the President for
the removal of the
Plaintiffs from office as
Justices of the Superior Court
was submitted by an identifiable
petitioner.
ii.
Whether the petition
submitted to the President for
the removal of the
plaintiffs from the office as
Justices of the Superior Court
is vitiated by fraud.
Lastly,
the 2nd and 3rd
defendants also filed the
following issues for
determination:
(i)
Whether or not a breach of
Article 146 (8) of the 1992
Constitution in publishing some
evidence touching on the
contents of a petition to the
general Public violates the
plaintiff’s right to procedural
fairness in the consideration of
the defendant’s petition before
the Chief Justice and /or
the-5man committee under Article
146 (2) and (3) thereof?
(ii)
Whether or not balanced
assessment of the competing
public interests in Article
21(1) (a) of the 1992
Constitution (guaranteeing
freedom of speech and expression
to the 1st Defendant)
and Article 146 (8) of the 1992
Constitution (guaranteeing
confidentiality in impeachment
proceedings to the Plaintiff)
ought to be resolved in favour
of the 1st Defendant or the
Plaintiff having regard to all
the circumstances of the instant
case.
For obvious procedural reasons
it is prudent to resolve issue
one (1) raised by the 1st
defendant first. This is because
the early determination of the
capacity in which the
‘petitioner’ submitted the
petition to the President could
determine whether the plaintiffs
have a subsisting ‘cause of
action’ against the 1st
defendant in particular and the
other defendants in general
under the circumstance and
failing which to terminate the
action against them. The outcome
will also determine whether it
is necessary to consider the
remaining issues raised for
determination in this dispute
since they all hinge on the
primary identification of the
actual petitioner to the
President. This development has
become necessary in the light of
denials and refutations of
responsibility by the 1st
defendant for the submission of
the petition. The 1st
defendant points rather to an
identifiable individual as
author of the petition and not
the company.
EXHIBIT AG1
The Petition submitted to the
President which is the subject
of divergent accusations and
counter accusations by the
parties, is exhibited in this
case file as exhibit AG1. A
scrutiny of exhibit AG1 would
assist us in unraveling and
resolving the identity and
capacity of its maker.
The primary responsibility of
this court is to ascertain the
identity of the author of
exhibit AG1 since this will
assist in resolving the current
impasse. I will therefore quote
the significant parts of the
exhibit here below as follows:
“
Box CT 11251
Cantonments, Accra,
Ghana.
THE PRESIDENT OF THE REPUBLIC OF
GHANA, FLAGSTAFF HOUSE, ACCRA.
THROUGH: HER LADYSHIP
CHIEF JUSTICE
SUPREME COURT
ACCRA.
IN THE MATTER OF ARTICLE 146 OF
THE CONSTITUTION OF THE REPUBLIC
OF GHANA
IN THE MATTER OF A PETITION
BY ANAS AREMAYAW ANAS FOR
THE REMOVAL FROM OFFICE AS
JUSTICES OF THE SUPERIOR COURT(
HIGH COURT) OF THE FOLLOWING
PERSONS:
(The names of twelve (12)
Justices of the High Court
including the three Plaintiffs
herein are given)
ON THE
GROUNDS OF STATED
MISBEHAVIOUR
Citizen Petition
This is
the humble petition of Anas
Aremeyaw Anas, under article 146 of
the constitution of the republic
of Ghana, to the president of
the republic of Ghana, in
my capacity as a citizen of
Ghana, and by profession an
investigative journalist and a
lawyer, humbly requesting
that you commence and put in
place the processes provided for
under article 146 aforesaid for
the removal from office the
under listed superior court
judges for stated misbehaviour.
The
misbehavior complained about is
that each of them at various
times, derived illegal private
gains from the public offices
which they hold justices of the
superior courts of the republic
of Ghana, through demanding
and/or receiving bribes in order
to deliver judgments, orders or
rulings in favour of some
accused persons and litigants
appearing as parties before them
in court.
Basis of Action Requested
For the
period of two (2) years, I
have carried out an
investigation into the
perceived corruption in the
judicial service. The
investigation sought to
ascertain whether there was any
truth in that perception. It
spanned across the regions of
Ghana. During the stated period,
I found hard evidence that
proves that corruption in
the judicial is more than just a
perception: it is true to a very
large extent.
I found
that some judges are very
corrupt, and that they demand
and receive bribes to perform
their public functions, in flagrant breach of the law and
the judicial oath sworn or
subscribed to by virtue of
article 165 of the constitution,
and set out under the second
schedule to same, to “ bear true
faith and allegiance to the
republic of Ghana as by law
established;…..uphold the
sovereignty and integrity of the
republic of Ghana;…..truly and
faithfully perform the functions
of [the] office without fear or
favour, affection or ill-will;
and …..all times uphold ,
preserve, protect and defend the
constitution and the laws of the
republic of Ghana.”
I also
found other judges who took
their oaths seriously and
would threaten to jail anyone
who sought to influence their
decisions.
I present
hereunder, the list of corrupt
judges and humbly request that
you cause to be put in place,
the procedure provided under
article 146 of the constitution
for the removal of judges of the
superior courts of the
judicature on the ground of “
stated misbehavior.” As a Ghanaian proverbs
goes “a little bad meat spoils
the whole soup.” It is my
respectful view that it is of
utmost importance that the few
dad nuts identified in this
petition are removed from office
to preserve the sanctity of the
judiciary, to act as deterrent
to other who may be engaged in
such acts but were lucky no to
have exposed, and to encourage
the loyal and dedicated judges
that honesty pays.
(This is
followed by a list the twelve
judges and the stated
misbehavior by each one and the
occasion.)
Dated in
Accra this 29th day
of August 2015.”
The
petition was signed by its
author. [Underline Mine]
ANALYSIS
It is
important to state that Exhibit
AG1 was typed on a letter head
of ‘tigereyepi’ bearing the
inscription ‘Africa’s leading
private investigative firm’. It
appears that it is this use of
the ‘tigereyepi’ letter head
that informed the plaintiffs’
choice of defendants,
particularly the 1st
defendant. Furthermore, it is
this letterhead background that
the Plaintiffs consider as
pointing to the 1st
defendant rather than its Chief
Executive Officer, Anas Aremeyaw
Anas, as the petitioner. In so
concluding it is apparent that
the Plaintiffs are looking to
the form of the document rather
than its intent. Such a position
is obviously contrary to the
legal maxim that holds that ‘the
intention of the person is the
soul of the instrument’ (Animus
hominis est anima scripti). Also
that ‘words are indications of
the intention’ (Verba sunt
indices animi)
The
Plaintiffs rely on section 121
(1) © of the Companies Act, 1963
(Act 179) to buttress their
conclusion. The section provides
as follows:
“121
Publication of name of company
(1)
A company shall
©
have its name accurately
mentioned in legible characters
at the head of all business
letters, invoices, receipts,
notices, or any other
publication of the company and
in the negotiable instruments or
orders for money, goods or
services purporting to be
signed or endorsed by or on
behalf of the company.”
[Underline mine]
Without
doubt, the above quoted section
as the underlined portion
affirms creates a ‘rebuttable
presumption’ upon the production
of a letterhead of a business
entity purporting to be signed
by or on behalf of the company.
Section 19 of the Evidence Act,
(1975), Act 323 provides that
‘an enactment providing that a
fact or group of facts is prima
facie evidence of another fact
creates a rebuttable
presumption.’
Black’s
Law Dictionary, Eight Edition,
by Bryan A Garner, further
highlights on this type of
presumption when it defines
‘rebuttable presumption as:
“An
inference drawn from certain
facts that establish a prima
facie case, which may be
overcome by the introduction of
contrary evidence. Also termed
prima facie
presumption; disputable
presumption; conditional
presumption.”
On the
other hand, the best evidence
rule requires that to prove the
contents of a writing or
recording or photograph, a party
must produce the original
writing (or a mechanical,
electronic, or other familiar
duplicate, such as a photocopy)
unless it is unavailable, in
which case secondary evidence
may be admitted. (See Black’s
Law Dictionary, Eight Edition by
Bryan A Garner)
Exhibit
AG1 satisfies the best evidence
rule, being a colour photocopy
of the original petition
submitted to the President. The
answer to the issue as to who is
its author and the capacity in
which it was made, can only be
found in that letter which may
rebut or affirm the maker as the
company or not. Thus exhibit AG1
takes the issue beyond
conjecture. In the present
context, the identity of the
maker of exhibit AG1 commences
from the very first paragraph of
the exhibit where he stated
that, this is the humble
petition of Anas Aremeyaw Anas’.
To put this issue beyond doubt,
the author appended his
signature at the end of the
letter in his personal capacity.
It is also not without
significance that the author of
the petition resorted to the use
of the pronoun ‘I’ throughout
his petition and ended it with
his signature to clearly
designate his intention, which
is that it was his personal
undertaking.
Now that
the identity of the author of
exhibit AG1 and the capacity, in
which he authored it has been
established, these established
facts rebut any presumption
that, the mere use of the
company letterhead, must
necessarily lead to the
conclusion or imputation that it
was the making of the company as
advocated by the plaintiffs. We
cannot accede to any unwarranted
academic or theoretical
conjectures in the light of the
obvious indications that the
petition was written by no other
than Anas Aremeyaw Anas, a
citizen of Ghana and an
investigative journalist and
lawyer by profession in his
personal capacity.
CONCLUSION
In the
light of this finding it is
obvious that the choice of the 1st
defendant as a party in this
action was not well informed nor
founded.
The
submission by the plaintiffs’
that the 1st
defendant is an un-incorporated
body and therefore incompetent
to submit a petition to the
President is not only
dis-ingenious, it is a ruse to
sway us from the real issue. We
find the submission unwarranted
and dismiss same.
In the
light of the foregoing
conclusion, no useful purpose
would be served in considering
the other issues raised by the
applicants as these have become
otiose. The plaintiffs’ action
fails and is dismissed.
(SGD)
J. B. AKAMBA
JUSTICE OF THE SUPREME COURT
(SGD) J. ANSAH
JUSTICE OF THE SUPREME COURT
(SGD) ANIN - YEBOAH
JUSTICE OF THE
SUPREME COURT
(SGD) P. BAFFOE - BONNIE
JUSTICE OF THE SUPREME COURT
(SGD) A. A.
BENIN
JUSTICE OF THE SUPREME COURT
COUNSEL
NII KPAKPO ADDO WITH HIM
STEPHEN OPOKU FOR THE
PLAINTIFFS
KISSI ADJEBENG WITH HIM DENNIS
FRIMPONG ADJEBENG FOR THE 1ST
DEFENDANT
MRS. AFRIYIE ANSAH (CHIEF STATE
ATTORNEY) WITH HER ZEINAB
AYARIGA (ASSISTANT STATE
ATTORNEY) FOR THE 2ND
AND 3RD DEFENDANTS
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