Judges - Bias - Objection to panel - Improper to raise objection of bias and impropriety in limine - Objection to be raised at conclusion of hearing on merits.

Judges - Bias - Real likelihood of, - Existing stool boundary dispute between stool of chairman of adjudicating committee and respondents’ stool - Committee awarding substantial damages against respondents - Order made in part without jurisdiction -Whether real likelihood of bias established.

State proceedings - Certiorari - Scope of remedy - Judgment containing errors within jurisdiction and errors outside jurisdiction - Whether remedy available.

On 17 May 1988 the appellants commenced a chieftaincy proceeding in the Sekondi Traditional Council against the respondents for a declaration that the nomination, confinement and outdooring of the 2nd respondent was in breach of customary law. At the first sitting, the respondents objected to the inclusion of Nana Gyakare on the committee on the ground that his stool had a boundary dispute with their stool. The committee dismissed the objection and the respondents participated in the proceedings. The committee delivered its judgment in which both the majority and the minority held that the nomination, confinement and outdooring of the 2nd respondent was in breach of the customary law practice. The majority directed that Mbraye’s line should elect the next occupant of the stool and also awarded ¢100,000 damages. The respondents did not appeal against the decision but rather obtained a writ of certiorari in the High Court to quash the decision. On appeal counsel for the appellants argued that the respondents’ grievance was not an allegation of real bias on the part of the chairman but a likelihood of bias. Furthermore, that the respondents ought to have appealed against the offending orders in the traditional council.

Held - (1) Under our law, an objection based on an allegation of bias ought not be raised in limine, whereas under English law such an objection ought be made in limine where the reasons and grounds in support of the objection were available before actual hearing commenced. In the instant case the objection was raised in limine and was dismissed. It was therefore not open to the trial judge to re-open the issue as it was not on appeal before him. Bilson v Apaloo [1981] GLR 15, R v Williams, ex parte Philips [1914] 1 KB 608, cited.

(2) On the facts the respondents failed to make out a case of real bias on the part of the chairman of the committee. The award of damages per se could not be evidence of bias.

(3) The trial judge erred in quashing the whole judgment on the ground that the judicial committee had made an award for damages in the sum of ¢100,000. The proceedings had not been conducted in breach of any rules of court or against the rules of natural justice nor had it been shown that the committee had no power to make an award of a civil nature. The committee had power to award costs and the exercise of that right by it could not support an application for certiorari. The remedy of the respondents was to appeal against the quantum of damages on the ground that it was not warranted by law. Republic v High Court Accra; ex parte Laryea [1989-90] GLR 99, SC, Republic v Accra Special Circuit Court, ex parte Attorney-General [1977] 2 GLR 324, CA cited.

(4) The declaration made by the majority of the judicial committee that Mbraye’s line should select the next occupant of the stool was not warranted by law. It was not an issue before it and it was made without jurisdiction. But that slip on the part of the majority of the judicial committee was not per se evidence of bias. The trial judge was permitted to quash only the offending passage and not the whole judgment.

Cases referred to:

Bilson v Apaloo [1981] GLR 15, SC.

R v Williams, ex parte Philips [1914] 1 KB 608.

Republic v High Court Accra, ex parte Laryea [1989-90] GLR 99, SC.

Republic v Accra Special Circuit Court, ex parte Attorney-General [1977] 2 GLR 324, CA.

APPEAL from the judgment of the High Court, Sekondi.

Ahenkorah (with him Spio) for the appellants.

Ocran for the respondents.

LAMPTEY JA. On 17 May 1988 Kweku Abuna II and 2 others commenced a chieftaincy dispute in the Sekondi Traditional Council against Nana Kobina Angu II and 4 others. They sought a declaration that “the nomination, confinement and out-dooring of one Ocran, 2nd respondent herein, was in breach of customary law”. They sought other reliefs as well. A judicial committee of three members was constituted by the council with Nana Ntim Gyakare II as the chairman of that committee. At the first sitting of the judicial committee, Nana Kobina Angu II and the other respondent objected to the inclusion of Nana Ntim Gyakare II on the membership of the committee. They were heard fully on their objection. By its ruling dated 8 July 1988, the committee dismissed the objection in limine and assumed jurisdiction in the chieftaincy dispute. Nana Angu II and the respondents submitted to the jurisdiction of the committee and fully participated throughout the hearing of the chieftaincy dispute on the merits. At the end of the hearing the judicial committee delivered a “majority judgment” and a “minority judgment”.

They gave judgment for the petitioners and granted the following reliefs:

“(a) a declaration that the nomination, confinement and out-dooring of the 2nd respondent Emmanuel Ocran on or about the 30 April 1988 as a chief or sub-chief or caretaker of Kweikuma is null and void and is of no legal effect ...”

On this same issue the “minority judgment” held as follows:

“The nomination, confinement and out-dooring of Mr Emmanuel Ocran as chief, the first time in the history of Kweikuma, should have been preceded by a meeting of all the elders of Kokodo Ebiradze Stool family of Fijai before confronting the people of Kweikuma for their acceptance and concurrence. It is my view that such consultations were not done by both sides considering the division within the family. The nomination confinement and out-dooring of Mr Ocran as chief on 30th April 1988 was therefore hasty...”

It will be seen from the above passages that the “majority judgment” and the “minority judgment” held that the nomination, confinement and out-dooring of Mr Ocran breached customary law and practice. That was the declaration sought by the petitioners. Nana Angu II and the other respondents had not appealed against the judgment (majority and minority) of the judicial committee even though they were aggrieved and dissatisfied with it. What they did was to apply to the High Court, Sekondi for leave to issue a writ of certiorari to bring the “majority judgment” before that court for it to be quashed. Leave was duly granted to Nana Angu II and others. The application was heard on the merits. On the 8th February 1991 the High Court, Sekondi quashed the judgment of the judicial committee dated 14 June 1989. Aggrieved and dissatisfied with the judgment of the High Court, Nana Kweku Abuna and the others appealed to this court.

One ground of appeal argued before us was that the trial judge misdirected himself on the law on bias. Learned counsel for appellants submitted that the case before the lower court was not an allegation of real bias on the part of the chairman of the judicial committee. He stated that the case put forward by the respondents was one of real likelihood of bias. He argued that the two situations were governed by different principles of law. On the facts before the lower court the respondents failed to make out a case of real bias on the part of the chairman of the judicial committee. In reply learned counsel for the respondents submitted that the trial judge applied the right principles and came to the right decision on the facts before him. He referred to the admission by the chairman of the committee that there was a stool land boundary dispute between his stool and the stool of the 1st respondent. He contended that the finding by the learned judge that the admission was sufficient evidence of bias on the part of the chairman cannot be impeached.

It seems to me that I must address the issue as to the nature and type of the complaint before the High Court and the standard of proof required by law. On the facts before the court was it a complaint of real likelihood of bias or on the other hand a case of real bias apparent on the face of the record? To enable one to answer this question it is in my view necessary and desirable to determine at what stage the complaint of bias was made. Was the complaint made before actual hearing of the case on the merits commenced or was it made during the hearing of the dispute on the merits; or was it made after hearing had been concluded and after judgment had been delivered? It is trite learning that different principles of law apply to the different situations I have outlined above. That this is the state of the law was stated with clarity in the Supreme Court case of Bilson v Apaloo [1981] GLR 15. At page 21 Anin JSC wrote as follows:

“In the present case, the plaintiff has alleged inter alia, judicial impropriety and bias against the two said members of this present panel of the Supreme Court in connection with the discharge of their judicial duties in the Court of Appeal exercising the functions of the Supreme Court in the case of Tuffour v Attorney-General. Whether or not plaintiff’s serious allegations of bias and judicial impropriety are well-founded is a matter going to the merits of the substantive action which should properly be decided after evidence and legal arguments have been heard and not in limine.”

The test laid down by the court was that the objection founded on allegations of bias and judicial impropriety should not be made in limine but rather after the hearing had been concluded. The Supreme Court dismissed the objection and ordered the substantive action be heard on the merits.

The decision of the Supreme Court in Bilson v Apaloo (supra) stands in sharp conflict with the English case entitled R v Williams, ex parte Philips [1914] 1 KB 608. In that case Channell J stated the law as follows:-

“The Court is of the opinion that this rule should be discharged. No objection was taken to the jurisdiction of the Court below at the hearing before the Court; that being so, it is the rule of this Court not to grant a writ of certiorari except upon an affidavit which negatives knowledge on the part of the applicant when he was before the Court below of the facts on which he bases his objection.”

In that case Rowlatt J also stated the rule as follows:

“It is a very salutary rule that a party aggrieved must either show that he has taken his objection at the hearing below or state on his affidavit that he has no knowledge of the facts which would enable him to do so.”

It seems to me that under our law an objection based on allegation of bias should be raised not in limine, whereas under English law (which is only of persuasive authority) such an objection must be made in limine in cases where the reasons and grounds to support the objection were available before actual hearing commenced. It would appear that under English law the objection would be taken after the case had been disposed of in situations where facts and grounds for the objection came into the possession of the party making the objection after the case had been concluded.

In the instant case the objection was raised in limine by Nana Angu II and others before hearing commenced at the judicial committee. It was considered and dismissed.

I must state in passing that Nana Angu II and others did not appeal. After they defended the action and lost they sought and obtained an order quashing the “majority judgment”. The grounds in support the application included the allegation of bias made earlier before the judicial committee; in other words, Nana Angu II and others relied on the same matters to prove and establish the allegations of bias. I am of the opinion that it was wrong for the court below to consider the allegation of bias in support of the application. The judicial committee considered this allegation and dismissed it. It was not open to the judge below to re-open that issue since it was not on appeal before him. The judge below was not permitted to substitute his finding on the issue of allegation of bias for that of the judicial committee. I hold that the judge below erred in law in considering and determining the allegations of bias; it was not on appeal before him.

In the event that I am wrong in the view I hold and the conclusion I have reached, I now consider whether or not the allegation of bias on the part of Nana Ntim Gyakare II was proved by the evidence before the lower court. In finding the allegations of bias proved the trial judge stated as follows:

“I must confess that the affidavit sworn to by Nana Ntim Gyakare II and the ruling of the tribunal clearly demonstrate to me that prior to the trial of the case before the judicial committee there was bad feelings or animosity between Nana Ntim Gyakare II and the 1st applicant and real likelihood of bias had been established.”

From this passage the learned trial judge did not rely on the averment in the affidavit in support of the application. He relied on the affidavit of Nana Ntim Gyakare II and also on the ruling of the judicial committee. I will deal first with the affidavit of Nana Ntim Gyakare II to show that by that affidavit Nana Ntim Gyakare admitted the existence of a stool land boundary dispute between their two stools. The affidavit did not state that there is an action in a court of competent jurisdiction of this dispute. The affidavit did not state that “there was bad feelings or animosity” between the lst respondent and Nana Gyakare II. The trial judge realised that he misconceived the case being made by the respondents hence he made the following observation:

“Much as I consider the treatment meted out to the defendant-applicants as harsh, I do not think that that per se should constitute a ground for invalidating the whole proceedings.”

This passage means and can only mean that the respondents failed to prove what they alleged. In these circumstances, the trial judge was obliged to dismiss the objection. He had no discretion in the matter. In the instant case the trial judge proceeded as follows:

“... it seems however, to me that the manner in which the order was delivered was enough to inspire fear in the applicants that the chairman, a lawyer, had great influence over the committee...”

and on this premise he concluded as follows:

“I hold that the inclusion of Nana Ntim Gyakare II in the panel of the Judicial Committee coloured and contaminated the decision of the tribunal. The charges of bias and prejudice have been made out.”

From the passage above it will be seen that the trial judge was not happy with the manner in which Nana Ntim Gyakare II delivered the ruling of the committee. He was of the view that Nana Ntim Gyakare II terrified and terrorised the respondents by the manner in which he delivered the ruling. He concluded that this was sufficient evidence of bias. The trial judge held further that Nana Ntim Gyakare II had great influence over the other two members of the committee. The reason to justify and support this conclusion was that “Nana Ntim Gyakare II is a lawyer”. I do not know of any rule of court which prescribes a method or manner for delivery of a ruling or a judgment. I find that the findings made by the trial judge are not supported by the evidence before him. I find further that even if there was any evidence to support these findings the same could not in law support and prove bias on the part of Nana Ntim Gyakare II. I hold that the trial judge erred in law when he held that the allegations of bias on the part of Nana Ntim Gyakare II were proved.

There were other matters urged before the trial court to support and prove that certiorari lay to quash the “majority judgment”. The respondent pointed at errors on the face of the record. I agree that an error on the face of the record sought to be quashed is a ground for making that application. I refer to two cases on this proposition of law. The first case is entitled Republic v High Court Accra, ex parte Laryea [1989-90] 2 GLR 99. In that case the applicant had inter alia, brought an application “seeking an order of the court to quash a ruling which upheld a preliminary objection to the competency of an action brought by the applicant”. The applicant was disqualified by the respondents from standing as a candidate for the district council elections. The Court of Appeal dismissed the application for certiorari. The court re-stated the law, namely, that certiorari would lie to quash the decision of a court on the ground of error on the face of the record if such error went to jurisdiction or was so obvious as to make the decision a nullity.

The second case is Republic v Accra Special Circuit Court, ex parte Attorney-General [1977] 2 GLR 324. The issue before the appellate court was whether or not the trial circuit court acted without jurisdiction when it imposed a penalty on the applicant not authorised by law. The court held that on the facts of the case, there were no special circumstances within the true meaning of the proviso to section 57 (3) of Act 64, the Drugs and Pharmacy Act 1961. The trial court therefore had no jurisdiction to impose a sentence other than the one prescribed by section 57(3) of Act 64. The High Court was right in quashing that sentence by the issue of certiorari.

The first error on the face of the record which the trial judge had to consider was the award of general damages against the respondents by the “majority judgment”. Learned counsel for the respondents submitted that the award of ¢100,000 general damages against the respondents by the “majority judgment” sinned against sections 28(3) and (4) of the Chieftaincy Act 1971 (Act 370). He stated that the trial judge was right in holding that this was error on the face of the record. In reply learned counsel for the appellants conceded that the quantum of general damages awarded was evidence of error on the face of the record. He argued that the remedy of the respondents in the circumstances was to exercise their right of appeal against the offending order. The remedy open to the respondents was not to seek an order quashing the whole “majority judgment”. I entirely agree with the view of learned counsel that the remedy of the respondents was not to seek an order quashing the “whole majority judgment”. The remedy of the respondents, in my opinion, was to appeal against the quantum of general damages on the ground that it was not warranted by law.

I will examine section 28(3) and (4) of Act 370 which provides as follows:

“28 (3) A Traditional Council may in respect of any cause or matter affecting chieftaincy determined by it make any award of a civil nature including any award of amends to an injured person.

(4) Nothing in this section shall be deemed to authorise a Traditional Council to punish any person by imposing a fine or awarding a term of imprisonment, and subject to the provisions of Part VI of this Act, and except in the case of Stool property, no award shall be made which would involve the delivery or disposal of property or the payment of money exceeding ¢400.00 in value.”

The provision limited and circumscribed the right and power of a judicial committee to: (1) make an award of a civil nature; and (2) an award not exceeding ¢400. I am not aware that the amount of ¢400 has been enhanced by subsequent legislation. My attention has not been drawn to any legislation which enhanced the paltry amount of ¢400. In the instant case, the award in the “majority judgment” was the colossal amount “of ¢100,000” as general damages. This award was made in excess of jurisdiction. Was the fact of the award of ¢100,000 as general damages per se sufficient evidence of real bias? I think not. In the first place the award was concurred in by the other member of the committee against whom no complaint had been made by the respondents. It had not been shown that the other member of the committee was influenced in any manner by the chairman of the committee in making the award. Again the minority judgment made an award in the following language:

“All expenses incurred by the plaintiffs should be computed and placed on the Fijai Stool.”

By this passage it would be seen that the judicial committee was of the opinion that the case before it was one in which it could make an award of a civil nature. The fact that the award was colossal, without more, could not be sufficient and compelling evidence of real bias on the part of all three members of the judicial committee to support and establish a case of certiorari. As learned counsel for the appellants pointed out, that award contained in the judgments was a ground of appeal. He had argued further that it was not open to the trial judge to quash the whole proceedings. By implication he would support an order which quashed the award of ¢100,000 only. I entirely agree with the view that the trial judge erred in quashing the whole judgment. The proceedings had not been shown to have been conducted in breach of any rules of court or against the rules of natural justice. It had not been shown that the judicial committee had no power to make an award of a civil nature. The quantum of the award cannot, per se, be a ground to prove and establish bias.

Another complaint against the majority judgment which the respondents made before the High Court, Sekondi was that the majority panel suo motu determined the issue of the right to succession to the Fijai sub-stool. It was argued that since the parties had by their pleadings not raised the issue of the right to succession to the Fijai Stool, the majority panel exceeded its jurisdiction; the High Court in the circumstances should quash the judgment on an application by writ of certiorari. The appellant by his counsel submitted that certiorari did not lie to quash the judgment in the circumstances of the instant case. The right of the aggrieved respondent was a right of appeal against that portion of the judgment and not a right to have the whole judgment quashed and set aside.

Is there evidence before this court to support the complaint that the majority judgment made a final pronouncement on the issue of the right to succession of the Fijai sub-stool? The passage of the “majority judgment” which is the subject-matter of the complaint reads thus:

“From the traditional history given by the petitioners, the petitioners are the descendants of the founders of Fijai. They are elders of Kotrode Ebiradze Stool family of Fijai. These have not been denied under cross-examination. It is also on record that on the demise of Nana Angu II the present occupant of the stool, Mbraye’s line should select the next occupant of the stool. It is therefore unreasonable to abrogate or annul their right to appoint the next successor to Fijai stool or any part thereof by forever stifling their right.”

The passage was intended by the panel to show that the petitioners had legal capacity to litigate the chieftaincy dispute before the committee. In support of this statement, the majority judgment drew the following conclusion:

“Therefore the petitioners have capacity. They cannot sit down and have their rights smothered forever.”

It seems to me that the language used in the “majority judgment” to wit “Mbraye’s line should select the next occupant of the stool” went too far; the parties had not submitted that issue for a determination and a declaration by the judicial committee. The declaration made in the “majority judgment” was not warranted by law for it was made without jurisdiction. In my opinion that slip on the part of the majority of the committee was not per se evidence of bias, the trial judge was permitted to quash only the offending passage but certainly was not permitted to quash the whole judgment. To the extent that he quashed the whole judgment he erred in law.

Another complaint made by the respondents before the High Court to prove and establish bias on the part of the judicial committee was that the committee awarded costs against them for failing to file a statement of defence within the time allowed for doing so. Learned counsel for respondents submitted that the committee erred in law in awarding costs against the respondents. He contended that there was no obligation on the part of the respondents to file a statement of defence because the appellants had not themselves filed a statement of claim. He submitted that parties before a judicial committee were not required to file pleadings. Learned counsel for appellants conceded that the judicial committee erred in awarding costs against the respondents in the circumstances. He submitted that the right of the respondents was a right of appeal against the unwarranted award of costs. He contended that certiorari did not lie to quash the whole judgment. The complaint was made at paragraphs 16 and 17 of the affidavit in support of the application. These were:

“16. That bias of the judgment is even made manifest when one considers the fact that the chairman awarded ¢100,000 damages and ¢60,000 costs.

17. That I am informed and believe same to be true that the committee has no jurisdiction in awarding damages.”

It will be seen that though paragraph 16 made mention of “¢60,000 costs” there was no mention of “costs” in paragraph 17. Was the omission deliberate? In my view the omission was deliberate because the respondents realised that the judicial committee had the right and power to award costs. By their affidavit in support of their application the respondents had not complained about the award of costs “for failing to file a statement of defence” an issue for consideration by the High Court. The trial judge erred in law in considering that matter because it was not in issue before him. He was wrong in holding that the award of costs being ¢60,000 as disclosed by the affidavit of respondent was evidence of bias on the part of the chairman. What was alleged in court and was not even supported by any evidence was that an unspecified amount was awarded against the respondents because “the judicial committee stated that the respondents had failed to file a statement of defence”. In my opinion this allegation was not properly before the court. The trial judge should have ignored and rejected it. He failed to do that. With respect he erred in holding that the award of costs in the circumstances stated above was evidence of bias. It is therefore clear and plain that that ground relied on to prove and establish bias was misconceived. The judicial committee had power to award costs. The exercise of that right by the judicial committee cannot support an application for a writ of certiorari. The trial judge erred in law when he held that in the above circumstances bias was proved.

It is for all the above reasons that I find that the appeal against the judgment of the High Court succeeds. I accordingly set aside that judgment. I will enter judgment for the appellants and dismiss the application of the respondents.

KPEGAH JA. I agree.

FORSTER JA. I also agree.

Appeal allowed.

Justin Amenuvor, Legal Practitioner.