Contempt of court – Offence – Ingredients ‑ Scurrilous publication about judge after judgment – Whether contempt of court.

 Contempt of court – Punishment – Purpose – Punishment intended for preservation of sanctity and dignity of court.

Contempt of court – Scandalising court– Freedom of speech – Circumstances in which exercise of freedom of speech may constitute contempt of court.

Contempt of court –  Scandalising court – Truth of scandalous publication not a defence.

Judgment ‑ Correction – Errors – Circumstances in which judge may correct error in judgment after delivery.

Contempt of court – Offence ‑ Conviction – Whether unanimous verdict of panel required for conviction.

The Attorney-General applied to the Supreme Court for various orders including the committal of the respondents to prison for contempt of court. In the statement supporting the application the Attorney-General alleged that the 1st respondent, a private legal practitioner, published in the 3rd respondent’s newspaper edited by the 2nd respondent, a matter concerning a member of the panel in NPP v Attorney-General [1994-95] GBR 1 decided by the Supreme Court, that constituted contempt of court. The 1st respondent who heard the delivery of the opinions in that case noted that the judge had wrongfully attributed a publication in the Daily Graphic to Dr K A Busia, the Prime Minister of the 2nd Republic of Ghana. He procured an uncertified copy of the judgment issued out by the Deputy Judicial Secretary and wrote to the judge, pointing out the error at page 28 of his judgment and copied the press and the Chief Justice. Subsequently the respondents published under the caption “Justice Abban is a liar” that the judge had committed a grievous and unpardonable legal crime against the media, the Judiciary and the people of Ghana. He was accused of displaying political chicanery and bamboozlement of Ghanaians in attributing the publication in the Daily Graphic to Dr Busia.

Upon receiving his copy of the letter, the Chief Justice who had presided over the case caused a certified copy of page 28 of the judge’s opinion to be forwarded to the 1st respondent. The 1st respondent discovered upon receipt of the certified copy that it bore no stamp of certification, besides it had been doctored in relation to the publication in the Daily Graphic. He therefore replied the registrar that the judge’s pronouncement in court differed from the certified copy. The respondents then published the reply under the headline: “Abban scandal¼Abban scandal ¼Abban scandal, Mensah-Bonsu tells Supreme Court: “I heard it all.” In a further issue under the headline: “Judicial Chicanery,” the respondents published further that in his zeal to justify the celebration of the anniversary of 31st December revolution, the judge indulged in judicial chicanery and gross negligence in attributing the publication to Dr Busia. He was accused further of setting an unduly high standard of proof, not germane to the issue and that his judgment was tainted with politics, and created the image of a judge bending over backwards to please the Government.

In another publication by the respondents, the headline stated: “Justice Abban scandal takes Dramatic turn. He is accused of doctoring.” The front-page publication accused him of doctoring his judgment as a subterfuge to free himself from scandal. In yet another issue of the newspaper titled: “Abban puts integrity of the Bench on the line” the respondents accused the judge of mischievously withdrawing his complaint against the publications from the National Media Commission, implying that judges were lunatics, indeed zombies expected to twist in the judge’s favour a case which could not stand on its mosquito feet before the Media Commission. The publication considered it mischievous, frivolous and vexations of the judge to make a fetish of the so-called certified true copy.

The Attorney-General submitted that those publications were scandalous, abusive, and contumacious and calculated to bring the administration of the law into disrepute. The 1st respondent’s counsel submitted on the contrary that the copy of page 28 sent to the 1st respondent by the Chief Justice was not genuine; that the publications were justified and the 1st respondent was entitled to call the judge a liar. He contended in the alternative that the matter was a fair criticism of a matter of public interest without malice. Although the 2nd and 3rd respondents offered to apologise, their counsel submitted that since the publications concerned the judge alone, it could not constitute contempt of the entire court; besides the judge could not correct errors after he had read his judgment. In any case, it was contended further the true judgment of the court was the oral judgment read and heard in court. He contended finally that contempt of court was in the nature of a crime, and required a unanimous Bench to convict.

Held, Adade, Amua-Sekyi and Aikins JJSC dissenting: (1) The publications in issue were scurrilous abuse and constituted contempt of court. R v Freeman The Times November 18, 1925, R v Gray [1900] 2 QB 36, Badry v DPP of Mauritius [1982] 2 All ER 979, R v Vidal (1922) Times, 14 October Rex v New Statesman, ex parte Director of Public Prosecutions (1928) 44 TLR 301 referred to.

Per Adade, Amua-Sekyi and Aikins JJSC dissenting: The weight of judicial opinion is certainly against committal for scurrilous abuse of a judge. It was evident that the judge could not have read page 28 of the uncertified copy procured by the 1st respondent as well as the certified copy sent to him. One or the other must have been doctored. There being no evidence from the judge, it was impossible to say whether the attribution to Dr Busia was deliberate or inadvertent. The language deployed in criticising the judge was deplorable, but it was a matter of public interest whether Dr Busia had in fact spoken with approval of the overthrow by force of arms of the Nkrumah regime. If Dr Busia did not, anyone who had the evidence was entitled to lay it before the public and comment thereon. The general thrust of the publications was to secure public rejection and condemnation of the act of substitution, which did not qualify as obstructing justice. On the contrary, they had the effect of sanitizing the administration of justice. In exercising the power to commit for contempt, our courts must have regard also to the right of every person to express himself freely and openly on all matters of public concern, whether they pertain to actions of the Executive, the Legislature or the Judiciary.

(2) Article 127(2) of the Constitution 1992 guaranteed the independence of the judiciary. The high premium placed on the integrity, dignity and independence of the judiciary under the Constitution underscored the importance of the judiciary in society. The judiciary was an indispensable institution in any democratic society for the administration of justice. It was therefore of the utmost importance that the sanctity and integrity of the courts and its judges were preserved to enable them to perform their judicial functions peacefully and without interference from any quarter, hence the power to commit for contempt.

(3) Acts that scandalised the courts eroded public confidence in the courts by impairing and weakening the authority of the courts. Scandalising the court even after proceedings had terminated or subjecting a judge to scurrilous abuse constituted contempt. A temperate, fair, bona fide criticism of a judgment by a member of the public or the press was permissible provided the critic refrained from imputing improper motives to the judge. The freedoms of expression and speech and of the media could not be said to be absolute neither must it degenerate into licence. R v Gray [1900] 2 QB 36, King v Almon (1765) Wilm 243, Ambard v Attorney-General for Trinidad and Tobago [1936] AC 322, Reg v Metropolitan Police Commissioner ex parte Blackburn [1968] 2 QB 150, R v Vidal (1922) Times, 14 October, Mcleod v St Aubyn (1899) AC 5439, Rex v New Statesman, ex parte Director of Public Prosecutions (1928) 44 TLR 301 referred to.

(4) Truth or otherwise of the publication was no defence and the court would refrain from pronouncing on the genuineness or otherwise of the judgment. Scandalising the court was an offence not against the individual judge but for bringing the administration of justice into disrepute. If truth were a defence it would offer a platform for the repetition of the offending scandal and could be used maliciously to rake up damaging episodes in a judge’s past life, which might interfere with the administration of justice. The publications established malice on the part of the respondents. Re Martindale [1891-94] All ER 1248, Rex v New Statesman, ex parte Director of Public Prosecutions (1928) 44 TLR 301, Ambard v Attorney-General for Trinidad and Tobago [1936] AC 322, R v Metropolitan Police Commissioner ex parte Blackburn, (No 2) [1968] 2 QB 150, Republic v Liberty Press Ltd [1968] GLR 123 referred to.

Per Amua-Sekyi JSC: I am glad to find that the affidavit and visual evidence support my own recollection of what took place in court. Unlike the Chief State Attorney who confesses to having a poor memory, or the Deputy Attorney-General who prefers to remain silent, I did listen carefully enough to the reading of the opinion and have a good enough memory to remember what the judge said. I heard him say clearly and distinctly that he was quoting a passage from a speech by the late Prime Minister made in 1970. I reject as wholly false the suggestion that the judge said he was quoting someone or something called “Graphic View.”

Per Adade, Aikins JJSC: Justice Abban’s judgment that was read in open court was tampered with, and this was done by Justice Abban himself after he had read it in open court.

(5) There were two kinds of errors, typographical or citation errors, which could be corrected by the judge or law reporter. Other errors were substantial errors, the correction of which ought to be made by judicial review. If the error was a typographical or citation error, the judge or editor could correct it. The error at page 28 of the judgment was a citation error. R v Kuczynski [1973] 1 WLR 1230, Ghani v Jones [1969] 1 All ER 1700 referred to.

(6) It was only for the conviction for the offences of murder, treason and high treason that unanimity was required. In all other cases including contempt, a majority decision sufficed to support a conviction. Gallagher v Durack (1983) 152 CLR 238 referred to.

(7) The Supreme Court was duly constituted by 5, 7 or 9 judges. A judgment of the court, whether unanimous or by majority was a judgment of the court. It was therefore contempt of the court when scurrilous abuse was heaped on a member of the panel or the entire panel. The view that because only one member of the panel was attacked, no contempt was committed was therefore erroneous.

(8) Any person who procures through the back door and publishes an uncertified copy of a judgment does so at his own risk, and may be proceeded against for contempt since such conduct, would amount to an interference with the processes of the court. Dobson v Hastings [1992] 2 All ER 94 referred to.

Cases referred to:

A-G v Times Newspaper Ltd [1972] 3 All ER 1136, [1972] 3 WLR 855, 116 Sol Jo 885, DC on appeal [1973] QB 710, [1973] 1 All ER 815, [1973] 2 WLR 452, 117 Sol Jo 188, CA; affd. [1973] 3 All ER 54, [1973] 3 WLR 298, 177 Sol Jo 617, HL.

Ambard v Attorney-General for Trinidad and Tobago [1936] AC 322, [1936] 1 All ER 704, 105 LJPC 72, 154 LT 616, 52 TLR 335, 80 Sol Jo 344, PC.

Badry v DPP of Mauritius [1982] 2 All ER 973, [1983] 2 AC 297, [1983] 2 WLR 161, 126 Sol Jo 819, PC.

Bahama Islands, In the matter of a Special Reference from, [1893] AC 138, 62 LJPC 79, 68 LT 105, PC, 16 Digest (Repl) 10.

Bridges v California 314 US 252 (1941).

Calcraft v Guest [1898] 1 QB 759, 67 LJQB 505, 78 LT 283, 22 Digest 211, 1976.

Director of Public Prosecutions v Belize Times Press Ltd (1988) LRC (Const) 579.

Dobson v Hastings [1992] Ch 394, [1992] 2 WLR 414, [1992] 2 All ER 94, [1992] Gazette, 26 February, 27, 141 NLJ 1625, The Independent, November 12, 1991, The Guardian, November 13, 1991, The Times, November 18, 1991.

Doe v Date (1842) 3 A&B 619.

Evening Newspaper, Re (1880) 1 NSWLR 211.

Gallagher v Durack (1983) 152 CLR 238, 45 ACLR 53, 57 ALJR 191.

Gbadago v Tsili (1955) 2 WALR 11.

Ghani v Jones [1969] 1 All ER 1700.

Kuruma Son of Kaniu v Reginam [1955] 1 All ER 236, [1955] AC 197, [1955] 2 WLR 223, 119 JP 157, PC, 22 Digest (Reissue) 52, 310.

Kwakye v Attorney-General [1981] GLR 944, SC.

Legatt v Tollervey (1811) 14 East 302, 22 Digest (Reissue) 331.

Lloyd v Mostyn (1842) 10 M&W 478, 2 Dowl NS 476, 12 LJEx 1, 6 Jur 974, 22 Digest (Reissue) 64, HL.

McLeod v St Aubyn [1899] AC 549, 68 LJPC 137, 81 LT 138, 15 TLR 487, 48 WR 173, PC.

Myers v Director of Public Prosecutions [1965] AC 1001, [1964] 2 All ER 881, [1964] 3 WLR 145, 128 JP 481, 108 Sol Jo 519, 48 Cr App Rep 348, HL, 22 Digest (Reissue) 64, HL.

New Patriotic Party v Attorney-General [1994-95] GBR 1, SC.

Nwizuk v Eneyok (1953) 14 WACA 354.

Perera v R [1951] AC 482, [1951] 1 TLR 829, 95 Sol Jo 333, PC

R v Almon (1765) Wilm 243, 97 ER 94, 16 Digest (Reissue) 331.

R v Freeman, The Times November 18, 1925.

R v Gray [1900-3] All ER Rep 59, 69 LJQB 502, 82 LT 534, 64 JP 484, 48 WR 474, 16 TLR 305, 44 Sol Jo 362, DC, 16 Digest (Reissue) 47.

R v Kopyto (1987) 47 DLR (4th) 213, 39 CCC (3d) 1.

R v Kuczynski [1973] 1 WLR 1230, [1973] 3 All ER 401, 57 Cr App Rep 836, CA.

R v Leatham (1861) 3 E&E 658, [1861-73] All ER Rep Ext 1646, 30 LJQB 205, 3 LT 777, 25 JP 468, 7 Jur NS 674, 9 WR 334, 8 Cox CC 498.

R v Metropolitan Police Commissioner, ex parte Blackburn (No 2) [1968] 6 QB 150, [1968] 2 All ER 319, [1968] 2 WLR 1204, 112 Sol Jo 191, CA.

R v Nicholls (1911) 12 CLR 280.

Re Blackburn, See R v Metropolitan Police Commissioner, ex parte Blackburn (No 2).

Read and Huggonson, Re (1742) 2 Atk 469, 26 ER 683, sub nom Roach v Garvan, Dick 794, 19 Digest (Repl) 6.

Republic v Accra Circuit Court, ex parte Appiah [1982-83] GLR 129.

Republic v Liberty Press Ltd [1968] GLR 123.

Rex v New Statesman, ex parte Director of Public Prosecutions (1928) 44 TLR 301, 16 Digest (Repl) 23.

Rex v Vidal (1922) Times 14 October.

Secretary of State for Defence v Guardian Newspapers Ltd [1985] AC 339, [1984] 3 All ER 601, [1984] 3 WLR 986, HL.

APPLICATION by the Attorney-General to the Supreme Court for the committal of the respondents for contempt of court.

M Amidu (with him Mrs Adusa-Amankwah) for the applicants.

da Rocha (with him Brodie-Mends and Zwennes) for the 1st respondent.

Nana Akufo-Addo (with him, Akoto Ampaw and Kulendi) for the 2nd and 3rd respondents.

ARCHER CJ. I have had the opportunity and privilege of reading beforehand the opinions of my sister Bamford-Addo and my brothers Hayfron-Benjamin and Ampiah JJSC and I agree with their reasons and conclusions.

ADADE JSC. This case commenced with a motion on notice filed by the Attorney-General on 10/11/94 asking the court for an order:

“(i) of committal or attachment of the 1st and 2nd respondents and to commit them to prison for contempt of court;

 (ii)            that the 3rd respondent pay heavy fines and also the cost of these proceedings for contempt of court;

 (iii) that the respondents publish through the mass media a full and unconditional recantation of and apology for their contemptuous publications and conduct, upon the grounds stated in the accompanying statement and affidavits annexed hereto and for such further or other orders as to this Honourable Court shall deem fit.”

The statement accompanying the application described the 1st respondent, Kwabena Mensa-Bonsu, as “a private legal practitioner in da Rocha Chambers, Accra and a columnist of The Free Press newspaper.” The statement goes on:

 “(ii) The 2nd respondent is Eben Quarcoo, Editor of The Free Press newspaper.

(iii)            The 3rd respondent, Tommy Thompson Books Ltd of P O Box 6492 is a limited liability company and printers, publishers and proprietors of The Free Press newspaper.

The motion was supported by several affidavits, sworn respectively by:

1 Mrs Adusa Amankwa, a Chief State Attorney in the office of the Attorney-General;

2    Mr Mustapha Habib Logoh, Ag Registrar of this court;

3    Mr Kofi Addo-Nkum, Assistant Superintendent of Police (CID);

4 Miss Irene Wuaku, a clerical officer in the Supreme Court Registry;

5 Mr Emmanuel Ogbarmey Otoo, a Judicial Officer attached to the Court of Appeal registry.

For purposes of convenience only I shall hereafter refer to these persons as prosecution witnesses 1 - 5.    

On being served with the motion, each of the respondents deposed to an affidavit in his defence. In addition, there were affidavits from:

1    Mr Okerchiri Adusa Kwabena, a legal practitioner, based in Accra;

2    Mr Peter Ala Adjetey, also a legal practitioner, stationed in Accra;

3    Mr Joseph Agyenim-Boateng, the Secretary General of the New Patriotic Party, a registered political party;

4    Mr Kwadwo Afram Asiedu, Assistant Secretary of the Legal Constitutional and Judicial Affairs Committee of the NPP;

5    Mr Moses Adu Akai-Nettey, a private legal practitioner;

6    Mr Ben Annan, a lawyer and member of the Legal Constitutional and Judicial Affairs Committee of the NPP;

7    Mr John Albert Owusu, a Government-gazetted Documents Examiner and the Executive Director of Primus Forensic Consultancy;

8    Mr Emmanuel Asamoah Owusu-Ansah, the Deputy Judicial Secretary, Judicial Service.

I shall also hereafter refer to the above gentlemen as defence witnesses 1 - 8, again for convenience only.

The prosecution says that certain statements made by the three respondents in some issues of The Free Press newspaper are contemptuous of His Lordship Mr Justice Abban, one of the justices of the 9-member panel which heard New Patriotic Party v Attorney-General [1994-95] GBR 1, known as the 31st December case, and contemptuous also of the Supreme Court, and are calculated to bring the administration of justice into disrepute. The prosecution refers to several issues of The Free Press, and relies in particular on certain statements quoted in the affidavit of PW1, which will be referred to in due course.

The prosecution says that in writing those articles, and making those statements, the respondents were actuated by malice. As evidence of malice PW2 deposes in an affidavit as follows:

 “28 That I got to know during the course of the publications referred to in this affidavit that Mensa-Bonsu [1st respondent] is a legal practitioner in da Rocha Chambers which belongs to B J da Rocha, the Chairman of the New Patriotic Party, the plaintiff in the suit in which the reasons for judgment were delivered by the court on 8 March 1994.”

Beyond this no further evidence of malice was given. It was left to be inferred from the general conduct of the respondents, as may be ascertained from the publications relied on by the prosecution.

Needless to say, the respondents vigorously resist the application. As is already well known, the decision of the Supreme Court in NPP v Attorney-General [1994-95] GBR 1 was given on 29 December 1993; but the reasons for the decision were reserved to be read at a later date. These reasons were in fact read on 8/3/94. It would seem that sometime after this date, Mr Mensa-Bonsu, the 1st respondent herein, obtained a copy of the opinion read by Justice Abban. It ran into 40 pages. Upon reading it, the 1st respondent discovered at page 28 that a certain statement had been quoted verbatim from the Daily Graphic newspaper of 24/2/1970, serial No 6033, and attributed by His Lordship to Dr K A Busia, Prime Minister in the 2nd Republic. The 1st respondent checked the source of the quotation, and found that the said quotation was a reproduction of the editorial opinion of that newspaper, entitled “Graphic View”, and not a reported speech by Dr Busia, as alleged by the judge.

The 1st respondent therefore wrote to the judge pointing out this error. The letter is dated 9/5/94, and features in these proceedings as exhibit MB3. It reads as follows:

                                                                   “P O Box 3456,

                                                                   Accra

                                                                   9 May 1994.

Dear Sir,

WRIT NO 18/93: THE NEW PATRIOTIC PARTY

VERSUS

THE ATTORNEY-GENERAL OF GHANA

 There is in your signed Reasons for Judgment in the above-quoted suit, a passage, which purports to be a verbatim speech made by Dr Busia on 24 February 1970. In fact, what has been reproduced in your judgment is the full text of an editorial of the DAILY GRAPHIC of the same date.

A report of Dr Busia’s speech is made in the same issue of the paper and it is obvious that what you have done in your judgment is to misrepresent the editorial opinion of the GRAPHIC as a speech made by Dr Busia.

 Even if the speech contained material which might justify the editorial comment of the Graphic it is, in my respectful opinion, an inexcusable error to quote in full the editorial of a newspaper and attribute it to a person since a very casual reading of the news paper would reveal this error.

It is significant that in lifting the Graphic editorial you omitted the top caption which described it, in bold letters, as GRAPHIC VIEW. It is difficult to see how this caption could have escaped your attention.

 Putting aside the question whether that part of your reasons is germane to the issues, that misquotation is unfair and undermines confidence in the judiciary.

I enclose for your perusal, photocopies of the front and back pages of the Graphic edition of February 24, 1970, No 6033 which contains the report of Dr Busia’s speech and the “Graphic View”. You can see quite clearly that what appears in your judgment is Graphic’s View word for word.

I must mention that I sat through all the arguments during this case and I was present in court on the date the judgments were read and sat through to the end.

I have decided, as a concerned citizen, to bring this error to your attention and to the attention of the public, particularly because the passage from the Graphic which was incorporated in your judgment was not cited to you by counsel; nor were you invited to take judicial notice thereof.

You felt justified to refer to it because, to quote your own words, “the above-mentioned newspapers, like textbooks are available in public libraries in this country. The publication in them, like all newspapers, were made to the whole world and this court is entitled to take judicial notice of those publications.’

I am accordingly releasing a copy of this letter to the Press.

                                                                  Yours truly,

                                                                  K MENSA-BONSU

Mr Justice I K Abban,

Supreme Court Building,

Accra.

Copy to:

                   The Chief Justice

                   Supreme Court

                   Accra.”

This letter, as can be seen, was copied to the Chief Justice. Let it be observed that, as at now, there is nothing on the record before us to show that the learned Justice, to whom the letter was addressed, has reacted to it. On the contrary, the Chief Justice who is the President of this court, directed PW2 (Mr Logoh) to reply to the letter in terms of exhibit A dated 12/5/94, attached to PW2’s affidavit of 10/11/94:

      “12 May 94

THE NPP v THE ATTORNEY-GENERAL OF GHANA

I am directed by His Lordship, the Chief Justice to refer to your letter of 9 May 1994 and to point out that you have probably not got a certified copy of the reasons given by His Lordship Justice Abban.

In case you have not, then I attached a copy of the relevant page of the judgment (page 28) for your benefit. It was exactly the “Daily Graphic View” the judge quoted in his judgment.

                                                      (MUSTAPHA LOGOH)

                                                       REGISTRAR

                                                       SUPREME COURT

MR K MENSA-BONSU

P O BOX 3456

ACCRA

                                          cc:       The Hon. Mr Justice Abban

                                                      Supreme Court

                                                      Accra”

The page 28 sent along with the letter is exhibit MH1. Mr Logoh sent just one page, page 28, and not the whole judgment. At that stage, by virtue of exhibit MB3, Mr Logoh and the Chief Justice knew that the 1st respondent had a copy of some sort of Mr Abban’s opinion, but neither he nor the Chief Justice could have been in a position to tell to what extent the 1st respondent’s copy was accurate or defective, judging by their own letter, exhibit A. Yet they chose to send only one page (page 28) and not the whole opinion of the learned judge. This fact becomes relevant when we come to assess the rival merits of exhibit MB1 and exhibit CTC, since the said single sheet, exhibit MH1 features as page 28 of exhibit CTC. First respondent discovered, upon receipt of Mr Logoh’s letter that the page 28 sent to him differed in a material particular from what he had. This was the catalyst for the subsequent events, which have culminated in these proceedings.

The prosecution contend that the page 28 sent to the 1st respondent was the original one written and read by the learned justice on the 8/3/94, and that the respondents have no justification whatever for criticising the judge, for what they alleged was a forged or cooked-up statement, page 28 of exhibit MB1. It is even suggested that the alleged forgery was perpetrated by 1st respondent, Mr Mensah-Bonsu. In any case, the prosecution say that the criticism was too virulent, scandalous and even libellous.

The respondents on the other hand say that page 28 of exhibit MH1 is a new page 28, a revised, or as they put it, a “doctored” version of the original page 28, and that it was brought into being in reaction to 1st respondent’s letter of 9/5/94, exhibit MB3, and that in persisting to push exhibit MH1 as the original, the learned judge was lying, and to that extent he was a liar, and had indulged in “judicial chicanery” etc. etc.

Before going into the merits of this application let me say a few words on procedure. As is normal, the case commenced with a motion on notice, asking for certain reliefs to which reference has already been made. As the case progressed, it became clear that the parties were not in agreement on several issues of fact. The parties sought to deal with these issues on affidavits. The result was that the court was inundated with an over-supply of affidavits from all sides. It seems to me that as soon as it became apparent that there were many important questions of fact in dispute, it should have occurred to all (court, prosecution and defence) that the case was not suitable to be tried on affidavits only, and that some oral evidence was requisite. The defence did realise this early, even before the commencement of the addresses, for on 13/1/95 the 1st respondent, per his counsel, applied to subpoena E A Owusu-Ansah, Deputy Judicial Secretary, and Mr Tawiah, Senior High Court Registrar, Accra, to give oral evidence on the next adjourned date, 17/1/95. It appears that the subpoenas were issued. Somehow the 1st respondent did not ask leave to call these witnesses until the prosecution had completed their address, and the 1st respondent’s counsel was on his feet. The application was turned down by the court, on a split decision of 4 to 3.

Besides, the more I listened to the addresses, the more I wondered whether the trial should not have commenced in the High Court instead of this court. I concede that this is a case of contempt of this court. But the contempt is not in facie curiae; it is contempt of scandalising the court, ex facie curiae.

In the Liberty Press case [1968] GLR 123, the contempt was of the Court of Appeal, but proceedings were instituted in the High Court. On objection being taken as to the forum and mode of trial, Akufo-Addo CJ, sitting in the High Court, held inter alia:

 “(1) there was one Supreme Court of Judicature which consisted of the High Court and the Court of Appeal. The Court of Appeal was not a different Court from the High Court in the sense in which the old common law courts of England, namely the Common Pleas, the Exchequer and the King’s Bench division were from each other. Contempt of the Court of Appeal was therefore contempt of the Supreme Court of Judicature and the High Court being that part of the Supreme Court of Judicature that had original jurisdiction in all matters ought to be the court with jurisdiction to deal with it. The suggestion that the matter could be dealt with under Supreme Court (Court of Appeal) Rules, 1962 (L.I. 218), rr.27 and 28 was untenable as the application before the court was not an interlocutory matter¼

(2) The common law position had always been that the procedures by summary trial and by indictment were alternative procedures depending on the character of the contempt ex facie curiae. Where the contempt was clear and unambiguous the procedure for trial had always been by summary trial whereas in a case in which the contempt was not all that clear and certain, indictment had been the appropriate procedure.” (Emphasis supplied.)

In R v Gray [1900-3] All ER Rep 59, where the Queen’s Bench felt obliged to deal with a case of contempt summarily, Lord Russel CJ observed at p 62:

 “No one would, I think suggest… that this is not a contempt of court, and it does not fall – and nobody has suggested that it does fall – within the right of public criticism in the sense that I have described. I repeat that it is personal scurrilous abuse of a judge as a judge.

We have therefore to deal with it as a case of contempt, and we have to deal with it brevi manu. This is not a new-fangled jurisdiction; it is a jurisdiction as old as the common law itself, of which it forms part - a jurisdiction, the history, purpose, and extent of which are admirably treated in the opinion of Wilmot J ¼It is a jurisdiction, however, to be exercised with scrupulous care, to be exercised only when the case is clear and beyond reasonable doubt; because if it is not a case beyond reasonable doubt the court ought not to and will leave the Attorney-General to proceed by criminal information ¼“ (Emphasis supplied.)

I have heard it said that a person brought before the court on a charge of contempt of court is presumed guilty, and all that is required of him is to show cause why he should not be committed to prison. I am yet to hear a more preposterous and outrageous proposition of law. A person on trial for contempt is in no less a privileged position than any other accused person before our courts. In our accusatorial system of trial every accused person is presumed innocent until his guilt is proved. There are only very few exceptions to this rule, created by certain statutes, where a particular statute may place the burden of persuasion on an accused person to establish his innocence. But these often are situations where, unless the burden is put on the accused, true justice may never be attained, and the general public may be the worse for it.

A person on trial for contempt is entitled to say: “I am not in contempt.” The prosecution must then prove the contempt. It is only after the contempt has been established that the accused may be called upon to “show cause.” “Showing cause” is strictly speaking in the nature of a plea in mitigation, the accused attempting to persuade the court why he should not be punished either with a fine or with a term of imprisonment. Like all criminal trials, the sentence follows the conviction; a person who has not been adjudged to be in contempt (ie convicted of contempt) cannot be punished, and therefore cannot be called upon to show cause (ie plead in mitigation of sentence).

It happens that where the contempt is in facie curiae, the judge himself is a witness to the offending conduct, and no further proof may be required. But where the contempt is ex facie curiae, eg by scandalising the court, or refusing to obey a court order, or interfering with witnesses, etc then proof of the conduct complained of is essential, and the standard required is that beyond reasonable doubt, as indicated in R v Gray, supra.

No two cases are alike in all respects. This may well be so. But past cases of contempt both here and elsewhere have exhibited certain characteristics and the courts have from time to time, obtained some assistance in dealing with cases before them. The instant proceedings are in a class of their own, the facts being so different in character from any other I have come across.

This is not a case where a party has sought to interfere with the course of justice, or has accused a judge of taking a bribe or has charged the judiciary generally of being corrupt, inefficient, etc. Here a respondent complains that when he drew the judge’s attention to an attribution of a certain statement to the wrong person in his written judgment, the judge hurriedly substituted a new page for the original page to make it appear that he never made that attribution at all in the first place, and that he was being wrongly, and even dishonestly, accused. From then on, it was one person’s credibility against another’s; honour against honour. Both of them are untruthful, or one of them is; both could not be telling the truth. The fight to protect honour led to a series of writings and articles, the language of which forms the subject of the instant proceedings.

The posture of the two parties throws up certain basic issues of fact and of law, which this court must confront and determine. These may be shortly stated as follows:

1 Which pages 28, MB1 or CTC, was read to the hearing of the public in open court on 8/3/94?

2    Is a case of forgery against all or any of the respondents made out?

3    Is the language of the statements, articles and other written material relied on by the prosecution libellous, intemperate or scandalous?

4    Has malice or bad faith been established against the respondents or any of them?

5    Depending on the answers to the above or any of them, is a case of contempt by scandalising this court made out?

I see issue (1) as fundamental. I have heard it said that whether page 28 of CTC or page 28 of MB1 is the genuine one, it is immaterial, provided the language complained of is proved to be scandalous and libellous; I do not share this view. The court cannot assess the language except in the context of all the surrounding circumstances, which must include the truth or otherwise of the allegation made. Resolving issue (1) is essential for a number of reasons:

(a) The case of the prosecution, as well as that of the defence, has been built largely around this issue. Indeed, but for this issue, we might not be sitting here at all;

(b) This case has assumed such public interest proportions that we in this court owe it a duty to let the Ghanaian public know which of the two versions of page 28 is the true version;

(c) The law reporter needs to know which version should be published in the law reports as the opinion read by his Lordship. The learned editors may add whatever editorial comment they may deem fit;

(d) The allegation of lying or not cannot be known unless issue (1) is determined;

(e) Issue (1) casts a shadow over all the other issues, eg malice and bad faith, excess of language, forgery, etc.

To refuse to resolve this fundamental issue under whatever guise, subterfuge or pretence may lay this court open to a charge of running away from the truth, which we are not entitled to do, and expose us to ridicule and contempt in the eyes of the public. We must demonstrate for all to see that our much-vaunted desire to take justice to the people is not mere rhetoric. Let me repeat: this issue of fact must be determined in these proceedings, not only because it is relevant to the present case, but also because it will otherwise never be determined. We have the opportunity to do so now.

The prosecution says that exhibit MB1 is not authentic; that it is not genuine; that it is not what the learned judge read on 8/3/94; he read CTC. See eg, PW2, in his affidavit of 10/11/94, paragraphs 24, 26 and 30:

 “24 That Justice Abban complained bitterly to the Chief Justice about the fact that somebody might have stolen his Reasons for Judgment and maliciously tampered with it to bring him and the administration of justice into dispute.

26 That after sometime when the contemptuous publications continued in The Free Press newspaper without any response from the National Media Commission, it came to my knowledge that Justice Abban had requested the Chief Justice to refer the matter of tampering with his Reasons for Judgment and the libellous materials being printed and published of him and the judicial system by Mensa-Bonsu and The Free Press to the Attorney-General for investigation by the police.

30 That the alleged signed Reasons for Judgment obtained by Mensa-Bonsu is not the Reasons for Judgment read in court on 8 March 1994. He could not therefore have heard what he claimed to have heard in open court from a reading of those reasons for judgment which had been in my custody thereafter.” (Emphasis supplied.)

Also PW2’s affidavit of 22/11/94, para 5:

 “5  That the said Mensa-Bonsu has exhibited and marked MB1 supposed Reasons for Judgment read in court by Justice Abban on 8th March 1994.” (Emphasis supplied.)

And as late as 6/2/95, in their Written Reply Submissions by Counsel for the Applicant, the prosecution wrote:

 “7  It is our submission that if one compares the original with exhibits MB1 and CTC one would come to the conclusion that exhibit CTC is the same document as the original document. All insertions on CTC can be found on the original while this is not so in the case of exhibit MB1. If your Lordships come to the conclusion that exhibit CTC and MB1 are not the same document by virtue of the fact that even the insertions and the signature are not the same then the affidavit of John Albert Owusu stands discredited and ought to be ignored¼”

All of the above goes to show that as far as the prosecution is concerned the whole of exhibit MB1 is a fake; it is a forgery.

I must confess I fail to see the point in this line of reasoning. Long before CTC was filed, the defence had produced MB1 bearing a signature which they alleged was the judge’s signature. The prosecution did not challenge this signature. Later CTC was produced, not by the prosecution, but again by the defence. They had obtained it from PW2. Mr Logoh, and therefore obviously the signature was accepted by the prosecution as that of the judge. If upon comparing CTC with MB1 the prosecution had reason to doubt the genuineness of the signature on MB1, all they needed to do was to ask the learned judge to disown that signature, either orally or by an affidavit. Nothing like this has happened. So why this curious submission about the two signatures?

Besides, when in the context of this case, it is said that MB1 and CTC are the same (except, of course, for page 28 of each), I understand the comparison to go to type characters, letters, typed corrections, erasures, handwritten insertions, corrections, punctuation marks, paging, paragraphing, composition and construction, language, signature and so on. The size of the pages or colour of paper will, in this respect, be completely irrelevant. We must remember that in this day and age, any size of paper can be reproduced in a bigger or smaller form, without effecting any change in the content or character of that document.

The submissions in the reply of 6/2/95, in so far as they relate to the alleged differences between MB1 and CTC, seem to me to be disingenuous, irrelevant, and even misleading. The so-called differences, far from damnifying the defence, rather go to prove that something happened to the original in the possession of PW2 after MB1 had been obtained by the 1st respondent. And when the prosecution finds itself constrained to seek solace in smudges and stains on MB1, as indicating differences with CTC, it becomes apparent that they have either lost faith in their case, or else they have completely missed the substance of the matters in issue.

I here refer to paragraph 8(3) of the affidavit of PW1, of 2/2/95:

 “(3) A number of short vertical lines/marks, can be found on all the pages on the document marked exhibit MB1 but they cannot be found on the document marked exhibit CTC or the original document. That also suggests that one document is not an exact photocopy of the other.’

From their character and position on virtually all the 40 pages, these “short vertical lines/marks” on MB1 are obviously marks made in the course of photocopying, as a result of using a photocopying machine or process which must be less efficient than that used in reproducing CTC. These marks cannot have any role whatever in resolving the issue of substance such as is being contested in this case.

The same may be said of the so-called “lay man’s” observations, contained in the rest of paragraph 8 of PW1’s affidavit already referred to, as to length of signature, size of “type faces’, the length of a page 33 etc. These are all inconsequential minutiae, which are best ignored by this court.

The prosecution present the spectacle of not being sure whether to say, “yes” or “no”, to MB1. In court they continued to give conflicting signals about their stand. When pressed to take a stand, they took the view that they were being cross-examined, or that words were being forced into their mouth, forgetting that in these matters absolute candour can be an asset. From what appears presently, all else notwithstanding, I am prepared to assume in favour of the prosecution that their challenge to MB1 is not to the document as a whole, but to page 28 only.

Which script, then did the learned judge read on 8/3/94, MB1 or CTC? In his supplementary affidavit of 22/11/94, PW2 (Mr Logoh) intimated in paragraph 7 that he had in his possession “the Reasons for Judgment read in court on 8 March 1994 by the Chief Justice, Abban and Adade JJSC¼“ This was after he had earlier in the same affidavit castigated 1st respondent’s “copy,” exhibit MB1, as “a supposed Reasons for Judgment.” Mr Logoh, however, did not see it fit to let the court and the defence have sight of the original and the prosecution did not see it fit to let the court and the defence have sight of this original. The prosecution closed their address without producing the original. All this while, they had in their possession MB1 which the respondents had exhibited to their defence as far back as 21/11/94. From PW2’s affidavit just referred to, it is plain that the prosecution had, by the 22/11/94, compared MB1 with their original. If they had reason to believe that MB1 was a forgery, as they continued to press on us, they certainly would have produced their original to prove this.

As the party having the burden of proof, especially as they had also alleged forgery, the non-production of the “genuine” copy could not have been but prejudicial to their case. The defence, however, produced the “original”, having obtained it from PW2, certified, and exhibited it as CTC. Even if the prosecution had never seen the original before (which is not the case), as soon as CTC was served on them, they should immediately have discontinued all challenge to MB1 (including page 28) and apologised to the court and the defence, because it then must have occurred to them that any such challenge had not the slightest chance of success, and was likely to expose the prosecution to an allegation of want of candour in their conduct of the case.

Exhibit CTC is what the prosecution says was read by the judge on 8/3/94. If so, then the prosecution cannot deny that MB1 (except perhaps page 28) must be what the judge read on 8/3/94. The typed script of pages 1-27 and pages 29-40 of MB1, including the signature of the learned judge on page 40 thereof, are exact photocopies of the corresponding pages of CTC, and, for emphasis, let me add, page for page, typing error for typing error, erasure for erasure, typed correction for typed correction, spelling mistake for spelling mistake, omission for omission (page 14 [of]; humil[i]ating; page 18, sub[v]ersion; p 34 pe[r]tinent; etc. Indeed, the typed script of the said pages are duplicates of the original, within the meaning of section 164 of the Evidence Decree 1975 (NRCD 323).

Then there are the handwritten corrections, several of them, on the said pages of MB1, all of which appear also on CTC, including even the punctuation mark [;] at page 32. But there are a few such handwritten corrections, about 4 only, which appear on CTC but do not appear on MB1; these only go to show that after the photocopy MB1 had been taken, and the original returned to the custody of the court, some further amendments were made. Given that the prosecution accepts the signature of page 40 of CTC as that of the judge, having certified CTC as the original, it follows that the signature of MB1 cannot be denied. They are, even to the most casual or lay observer, the same; the two are photocopies of the same original in the custody of PW2.

I have a recollection, and my notes support this, that at the hearing on 2/2/95 the prosecution conceded that the handwritten corrections in CTC are all in the handwriting of the learned judge. In their Written Reply Submissions filed on 6/2/95 the prosecution seems to suggest that this concession if it was ever made was, as it was, extorted from them. The prosecution need only to be reminded that having vouched, by the certification, that the signature on CTC is that of the judge, the presumption is that all the handwritten corrections in that document were made by him, until the contrary is proved. And no such proof has been offered. Besides, the certification goes to the whole document CTC, the typed as well as the handwritten parts. The whole of that document is the certified original, in which case the authorship of the handwritten corrections becomes even of little moment.

The question therefore is: if indeed MB1 is not genuine, how did it happen that 1st respondent, sitting somewhere, conceived the idea of forging MB1, obtained the same typewriter to put his designs into effect, committed the same errors, and managed to get the same person, judge or otherwise, to make the same corrections for him. The prosecution has not attempted to supply the faintest clue as to how such an extraterrestrial feat could have been performed.

This brings me now to page 28 of MB1 and CTC. The issue here also is: Which of the two versions was read by the judge on 8/3/94? I remind myself that here too the burden is on the prosecution to prove beyond doubt that page 28 of CTC is the genuine one, and that, by necessary inference, page 28 of MB1 is a fake. The proof offered by the prosecution is that page 28 of CTC is the official certified version; page 28 of MB1 is not known to them. This carries the presumption, a rebuttable one, that page 28 of CTC is what was read on 8/3/94. The prosecution has also put in affidavits by PW 5 (Mr Otoo) and PW3, Addo-Nkum of the Criminal Investigations Department of the Ghana Police Service.

The prosecution seems to rely entirely on the fact that page 28 of CTC is certified, whereas page 28 of MB1 is not, to imply that that conclusively discharges the burden on them. In this, the prosecution, respectfully, are mistaken. The certification is no more than proof beyond doubt that the certified extract is an exact copy of what is on the office file; it agrees in every respect with what the office has. (See section 175(1) of the Evidence Decree 1975 (NRCD 323). But it does not answer the question: what did the judge read on 8/3/94? It is as though the prosecution are saying: “This is what we have as the official document;” to which the defence answer: “Yes, we agree, but this is not what the judge read.”

The establishment of the primary fact, by the certification merely raises a presumption that the document is what was read, and throws on to the defence the burden of persuasion that the contrary is the case. The standard of proof on the defence is the balance of probabilities, not proof beyond reasonable doubt. (See section 12 of NRCD 323). In this context, the evidence is evaluated by the likes of “reasonable minds”. (See section 13(2) and section 21 of NRCD 323).

To rebut the presumption the defence relies essentially on page 28 of MB1 to be its own justification. The said page agrees in typescript with all the other 39 pages of both CTC and MB1. On the contrary, page 28 of CTC is different. PW5’s affidavit, seeking to explain this difference is, to say the least, unconvincing; for if different typewriters were used to type CTC, then one would expect that not only one page, but several pages would have different type faces. But this is not the case.

Besides, page 28 of MB1 carries handwriting, which is the same as that on many other pages of CTC and MB1. The prosecution has not attempted to explain how this handwriting appeared on page 28 of MB1, correcting the typed “erra” to read “era.” That handwriting has not been rejected by the learned judge. Any reasonable mind looking at page 28 of MB1 in relation to page 28 of CTC will necessarily conclude that page 28 of MB1 is the genuine one. Page 28 of MB1 is the same in every respect as page 28 of CTC save that the latter introduces the “Graphic View.” If this had been contained in the original version, what reason would 1st respondent have had to write his letter of complaint of 9/5/94? I am satisfied that page 28 of MB1 (and not page 28 of CTC) is the original page, and the one read by the learned judge on 8/3/94.

Thus on the fundamental issue of fact as to which of the two documents was read by the learned judge on 8/3/94 I do not hesitate to say (as indeed I have never had any doubt whatever on this) that it was MB1, with its page 28. This means that I find that page 28 of CTC is not the original page 28, and, as contended by the defence, it was brought into being purposely to answer and defeat the query raised by the 1st respondent in his letter of 9/5/94, exhibit MB3. This means that I find the charge of forgery or tampering made against the respondents or any of them unproven, and I reject same.

The said page 28 of MB1 quotes a passage from the Daily Graphic newspaper of 24/2/70, which the learned judge said was part of a speech by Dr Busia. That attribution is an error. But which human being never makes a mistake? An innocent misstatement of a fact is a mistake - an ordinary mistake. A deliberate misstatement of fact is not just an ordinary mistake; it is a lie. Short of an admission by the prosecution that the mistake was deliberate, the question whether it was deliberate or unintentional must be determined by inference, having regard to the whole of the evidence before the court. The evidence shows that:

(a) when the mistake was pointed out by 1st respondent, by his letter of the 9/5/94, it was denied, and it continues to be denied up to this date, when everything points in one direction, that the denial cannot be sustained;

 (b)            an attempt was made to cover up the mistake, by hurriedly typing a corrective page, and substituting it for original;

 (c)            the passage complained of was copied from the Daily Graphic, which paper must have been lying before the judge at the time of copying. He could not therefore have failed to notice the caption, “Graphic View”. This caption was omitted in the course of copying: the omission has not been explained. The inference therefore is that it was deliberate, and not accidental;

(d) the tenor of the passage was enough to inform any reasonable reader that it could not be a reproduction of a speech, but rather a general comment and exhortation by the Daily Graphic newspaper.

All the above, and in particular the continued denial by the prosecution even in this court that there had been a mistake, when with all the evidence available, a denial was simply not open to them, gives the impression that the original mistake must have been deliberate; it is a lie. It is a painful conclusion to come to, but, I am afraid, it is an inescapable conclusion.

This finding does not necessarily answer the charge of contempt. The prosecution says that the articles and other writings of the respondents went far beyond the bounds of fair criticism; the language was intemperate, insulting, scurrilous and scandalous, and constitutes contempt.

There are different forms of contempt. Underlying all of them, however, is one basic notion, that the roadways and highways of public justice should at all times be free from obstruction. Conduct which tends to create such an obstruction constitutes contempt. Thus interfering with witnesses or jurors; frightening off parties to pending proceedings in such a manner as to prejudice the outcome; running down the courts and the judges; refusing to obey an order of a court - any of these, if calculated to, or tend to, impede or obstruct the course of justice will constitute contempt. Any conduct complained of therefore must be viewed and assessed against the backdrop of this basic principle.

In vol 9 Halsbury’s Laws of England, 4th edition page 21 paragraph 27 the learned author tells us that:

 “Any act done or writing published which is calculated to bring a court or a judge into contempt, or to lower his authority, or to interfere with the due course of justice or the lawful process of the court, is a contempt of court. Thus scurrilous abuse of a judge or court, or attacks on the personal character of a judge, are punishable contempts. The punishment is inflicted, not for the purpose of protecting either the court as a whole or the individual judges of the court from a repetition of the attack, but of protecting the public, and especially those who either voluntarily or by compulsion are subject to the jurisdiction of the court, from the mischief they will incur if the authority of the tribunal is undermined or impaired. In consequence, the court has regarded with particular seriousness allegations of partiality or bias on the part of a judge or a court.

On the other hand, criticism of a judge’s conduct or the conduct of a court, even if strongly worded, is not a contempt provided that the criticism is fair, temperate and made in good faith and is not directed to the personal character of a judge or to the impartiality of a judge or court.”

I may here mention the case of In the matter of a Special Reference from the Bahama Islands [1893] AC 138. This is not a judgment, it was an advisory opinion of the Judicial Committee of the Privy Council tendered in response to an invitation by the Secretary of State for the Colonies on an issue, which had arisen in the Bahamas. Advice 1(a) at page 148 of the report defines the offence of contempt and reads as follows:

“1(a) That the letter signed “Columnist” in The Nassau Guardian though it might have been made the subject of proceedings for libel was not, in the circumstances, calculated to obstruct or interfere with the course of justice or the due administration of the law, and therefore did not constitute a contempt of Court.”

The test is stated as follows in the Canadian case of R v Kopyto (1987) 47 DLR 213 at 214, per Goodman JA:

 “The expression of an opinion which may be lawfully expressed in mild, polite, temperate or scholarly language does not become unlawful simply because it is expressed in crude, vulgar, impolite or acerbic words. However, the statements by the accused that the courts were warped in favour of the police were clearly the type of statement calculated to bring the administration of justice into disrepute.”

And he goes on later at pp 215-217:

 “If the utterances made by the person bring the administration of justice into disrepute in the eyes of the reasonable man, dispassionate and fully apprised of the circumstances of the case and the fact that justice has been brought into disrepute results in a clear, significant and imminent or present danger to the fair and effective administration of justice, then the utterances would properly constitute contempt of court and such offence would be a reasonable limit on the right to freedom of expression. The offence moreover would not have to be limited to utterances made with reference to a case still pending before the court. Rather the important question would be whether the utterances created a real, significant and present or imminent danger to the fair and effective administration of justice. The utterances in this case however fell far short of meeting that test ¼

 A person is not guilty of contempt of court merely on the assumption that the words used would bring the court into contempt or lower its authority, nor could he be convicted where the words complained of could have little or no effect on the administration of justice. The offence of contempt of court is not an offence of absolute liability. The offence would only be made out upon proof of an intention to bring the administration of justice into disrepute and truth would be a defence¼

 To make out the offence it was essential for the Crown to prove that the statement made by the accused was calculated to bring the administration of justice into disrepute. The mere fact that the words were capable of bringing the administration of justice into disrepute does not suffice. What must be shown is that by reason of the statement made by the accused there was a serious risk that the administration of justice would be interfered with. The risk or prejudice must be serious, real or substantial. This is the actus reus of the offence and can be determined by application of a reasonable person test.” (Emphasis supplied.)

The accused in the Kopyto case was convicted of contempt. On appeal, the Ontario Court of Appeal quashed the conviction and acquitted him. Will a reasonable person, looking at all the evidence in the present case say that in pointing out the mistake and, as it were, expressing, be it vigorously, their distaste for the manner of the correction, the respondents have obstructed the course of justice? Does their conduct present “a clear and present danger to judicial administration”? See the Australian case of Gallagher v Durack (1958) LRC (Crim) 706 at p 712.

In McLeod v St Aubyn [1899] AC 459 the accused, a lawyer, had been hauled up before the Supreme Court of St Vincent for contempt, for publishing in a newspaper called the Federalist an article severely critical and scandalous of St Aubyn, who at the time was the Acting Chief Justice of St Vincent. Parts of the article, headed: “The Administration of Justice” said at page 552-553:

 “All the other islands do not appear to be as fortunate as Grenada. St. Vincent especially has suffered more perhaps, than any other from maladministration of justice. In Mr. Trafford the public had no confidence, and his locum tenens, Mr. St. Aubyn, is reducing the judicial character to the level of a clown. Law and order will only be observed when the tribunals of justice is (sic) pure and impartial.

 It does not seem from the letter of ‘Fairplay’ which appears in another column that the Acting Chief Justice of St. Vincent is capable of maintaining the noble traditions of the British Bench. He has apparently been too wrapped up and intermingled with personal disputes and squabbles of a questionable character to allow him to deal honestly and impartially with questions which come before him to be judicially settled. To nod and wink to counsel engaged in cases is not at all dignified in a judge; it becomes doubly criminal when he who performs these grievances and gymnastics is solemnly adjudicating questions of the utmost importance, involving the liberty, almost the life, of British subjects¼”

At page 553:

“If the people can have no faith in the findings of the Chief Justice, they may, doubtless, be tempted to redress their own wrongs, either of a private or public nature, with this result, that he who may be the chief cause of illegality will escape scatheless whilst those he has provoked to an outbreak will become the victims of martial chastisement¼

 “St Vincent has suffered much from the maladministration of justice¼

 “Discontent which might have culminated in riot has only been prevented by the influence and exertion of the St. Vincent editor of this journal, we hope he may be able to assist in allaying the dissatisfaction which prevails, consequent on the misconduct of the Acting Chief Justice…”

The article contained even worse and more scandalous statements than these.

The Acting Chief Justice himself tried the accused and convicted him for contempt. On appeal the House of Lords quashed the conviction and acquitted him. Costs were awarded against the Acting Chief Justice. The following passage at page 561 of the report may be instructive:

 “Now, what are the considerations applicable to the case? Committals for contempt of Court are ordinarily in cases where some contempt ex facie of the Court has been committed, or for comments on cases pending in the Courts. However, there can be no doubt that there is a third head of contempt of Court by the publication of scandalous matter of the court itself. Lord Hardwicke so lays down without doubt in re Read and Huggonson [2 Atk 471] He says, “One kind of contempt is scandalising the court itself.” The power summarily to commit for contempt of Court is considered necessary for the proper administration of justice. It is not to be used for the vindication of the judge as a person. He must resort to action for libel or criminal information. Committal for contempt of Court is a weapon to be used sparingly, and always with reference to the interests of the administration of justice. Hence, when a trial has taken place and the case is over, the judge or the jury are given over to criticism.” (Emphasis supplied.)

 The accused was acquitted. In this case the particular passages relied on by the prosecution as constituting contempt are quoted in paragraphs 10 and 11 of the affidavit of PW1 dated 10/11/94 as follows:

 “10¼By the sane and sound conviction of one of Ghana’s Supreme Court justices, in the person of Mr Justice I K Abban in disagreeing with the majority decision of the 9-member panel of the Supreme Court in upholding the writ filed by the New Patriotic Party that the government of the National Democratic Congress has no legal basis and is highly unconstitutional to celebrate the last year’s anniversary of the 31st December revolution, the learned Supreme Court judge committed one of the most grievous and unpardonable legal crimes against the media, the judiciary and the people of Ghana.

 11            ¼In his display of political [chicanery] and bamboozlement of Ghanaians, the learned Supreme Court judge lifted the whole editorial comment [of the] Daily Graphic newspaper of Tuesday February 24, 1970 No 6033 and portrayed it as a speech made by Dr K A Busia, Ghana’s Prime Minister in the Second Republic which to all intents and purposes is most outrageous in the field of legal issues.”

These must be passages against which the strongest objection is taken. There is another quotation in paragraph 22. But that goes more to contempt by commenting on a pending proceeding than by scandalising the court.

The prosecution relies also generally on publications in the issues of The Free Press newspaper dated 13/5/94, 20/5/94, 27/5/94, 3/6/94 and 4/11/94 and other publications. All these publications carry adverse and even insulting comments against the learned judge, based on what the respondents especially the 2nd respondent believed to be an attempt by the judge to change one page of his written and published opinion in an unfair manner. The respondents must have realised that if the judge succeeded in winning acceptance for his new page, they, and particularly the 1st respondent will be cast in the mould of criminals, as forgers, and therefore as dishonest persons, with consequences they probably could not predict. As far as the 1st respondent is concerned, a finding against him that he forged the page 28 of MB1, and attributed the forgery to the judge, might earn him, not only the stain of a criminal conviction for forgery, but also the loss of his professional career as a lawyer - he could be disbarred. This only gives an indication of the degree of seriousness of the charge of forgery levelled by the prosecution against the respondents.

Here not only has the charge of forgery not been proved by the prosecution; on the contrary, the defence have succeeded in proving that the prosecution’s own page 28 of CTC is not genuine, to say the least: that page 28 of MB1 is the original page read in open court, and page 28 of CTC is a substituted page. These proceedings would appear to be a vindication of the conduct and actions of the respondents in drawing public attention to what is clearly a matter of public interest.

But for the industry of the 1st respondent I cannot imagine how any Ghanaian would have been interested in checking the quotation in issue, except perhaps the editors who tend to check the source and accuracy of every quotation or citation in every reportable judgment, not so much for the public at large, as for the purposes of the professional publication called The Ghana Law Reports.

Whilst finding, as I have done, that on the whole, in all the circumstances, a case of contempt has not been made out, I would wish to caution that we all - the lay public, the legal profession, and judges themselves- have a stake in upholding the integrity, authority and respect of and for the judiciary. If these should collapse, one of the surest foundations of our democracy would have vanished, and we shall all be the poorer for it.

Of course judges, like any other group of human beings, do make mistakes, and should, indeed ought, to be criticised. At times some of us feel that our judgments are not criticised enough, especially by the legal profession. I expect however, that the language of criticism will be tempered and measured. It is not often remembered that judges, seen by many as very strong, are in fact the weakest members in the society. We receive blows, we cannot throw any; a factor to be taken into account when a member of the public is inclined to criticise us. This echoes the appeal of Lord Justice Edmund Davies in R v Metropolitan Police Commissioner, ex parte Blackburn (No 2) [1968] 2 All ER 319 at 320-321:

 “The right to fair criticism is part of the birthright of all subjects of Her Majesty. Though it has its boundaries, that right covers a wide expanse, and its curtailment must be jealously guarded against. It applies to the judgments of the courts as to all other topics of public importance. Doubtless it is desirable that critics should, first, be accurate and, secondly, be fair, and that they should particularly remember and be alive to that desirability if those whom they would attack have, in the ordinary course, no means of defending themselves.”

The general thrust of all the publications complained of in this case, which I have carefully studied, is to secure public acceptance for page 28 of MB1, and a firm rejection of page 28 of CTC, and even a public condemnation of the act of substitution. I do not read the articles as general comments or strictures on the courts, or the judges therein, or the administration of justice. They cannot be interpreted as “an obstruction to public justice¼“ On the contrary, they have the effect of sanitizing the administration of justice. I will dismiss the application for contempt against all three respondents.

In almost all the cases cited to us, the accused persons, on being acquitted of contempt were awarded costs. See, eg McLeod v St Aubyn [1899] AC 549 at p 562; Ambard v A-G of Trinidad [1936] AC 322 at 337 and Pereira v The King [1951] AC 482 at 489. This court is not used to awarding costs in cases involving the state. I think we can make an exception in this case, given all the circumstances, and reimburse the respondents, at least for their out-of-pocket expenses. As far as I am concerned, the application fails and is dismissed.

AMUA SEKYI JSC. On 29 December 1993, this court constituted by Archer CJ, Adade, Francois, Abban, Amua-Sekyi, Aikins, Bamford-Addo, Hayfron-Benjamin and Ampiah JJSC, gave judgment in a suit entitled: New Patriotic Party v Attorney-General [1994-95] GBR 1. Reasons for the decision, which were reserved, were finally given on 8 March 1994. Present in court were the nine judges, Messrs Peter Ala Adjetey, Samuel Okudzeto, Kwadwo Asiedu, Benjamin Annan, William Addo and Miss Gloria Akuffo for the plaintiffs, and Mr Martin Amidu, Deputy Attorney-General, Mrs Louisa Adusa-Amankwaa, Chief State Attorney, and Mr Avah, Principal State Attorney, for the defendant. Also present in court were members of the public, including some lawyers who were not in the case, and staff of the Judicial Service. Each judge read his reasons in open court. Anyone who was present and cared to listen must have heard what was read.

On 9 May 1994 Kwabena Mensa-Bonsu, a lawyer by profession, wrote a letter to Mr Justice Abban to complain that in the course of reading his reasons the judge had misrepresented Dr Busia, Prime Minister from 1969 - 1972, as having made a speech in praise of the coup d’etat of 24 February 1966, which said speech had been reported in the Daily Graphic newspaper of 24 February 1970. He said that the alleged speech was not in fact a speech at all, or by Busia, but rather the editorial opinion of the newspaper. He attached a photocopy of the publication to his letter and intimated that he would have the letter published. A copy of the letter and the publication also went to the Chief Justice. It was evident that if, indeed, the judge had attributed the Daily Graphic editorial to the late Prime Minister, then he had committed a grave error which called for an explanation.

Mensa-Bonsu is a columnist of The Free Press newspaper, a paper with a reputation for robust criticism of public figures. On 13 May 1994 there appeared in his column which has the by-line, “Sentiments of K Mensa-Bonsu,” a reproduction of the letter he wrote to the judge. It is couched in firm but polite language and called on him to offer an explanation for what he had done. No serious objection can be taken to this letter, and none has been taken. However, our attention has been drawn to a short piece with the headline: “Justice Abban is a liar,” which preceded the letter in the paper. It reads:

 “By the sane and sound conviction of one of Ghana’s Supreme Court justices, in the person of Mr Justice I K Abban in disagreeing with the majority decision of the nine members of the Supreme Court in upholding the writ filed by the New Patriotic Party (NPP) that the government of the National Democratic Congress (NDC) has no legal basis and is highly unconstitutional to celebrate the last year’s anniversary of the 31st December Revolution, the learned Supreme Court judge committed one of the most grievous and unpardonable crimes against the media, the judiciary and the people of Ghana.

 In his display of political chicanery and bamboozlement of Ghanaians, the learned Supreme Court judge lifted the whole editorial comment of Daily Graphic newspaper of Tuesday February 24, 1970 No. 6033 and portrayed it as a speech by Dr K A Busia, Ghana’s Prime Minister in the Second Republic, which to all intents and purposes, is most outrageous in the field of legal issues.

 This is because in the same, repeat same, issue of the Daily Graphic, Dr Busia made a speech with the Headline “Use Freedom Responsibly’, which was the newspaper’s front-page leading story, whilst the headline for the editorial on the second page was: ‘Salute The Gallant Men’.

 These two news items - a speech and an editorial - cannot escape the mind power of the learned Supreme Court judge in delivering his judgment in favour of the NDC.

And for the benefit of our numerous readers, The Free Press deems it highly patriotic to produce in verbatim all the sides to the issue ie the Daily Graphic editorial comment, Dr Busia’s speech and the bamboozle displayed by Mr Justice I K Abban in the lifting of the Daily Graphic editorial and making it a speech delivered by the late Prime Minister to support his NDC government, and lastly the letter written by Mr K Mensa-Bonsu to the learned judge drawing his attention to the mind-raking error of the century.”

There is no evidence that this piece was written by Mensa-Bonsu or that the headline was chosen by him. It is well known that in these matters, editors of newspapers exercise their own discretion. As far as Mensa-Bonsu is concerned, what caused some ruffling of feathers was an article, which appeared in his column on 20 May 1994. It is headed: “Judicial Chicanery” and reads in part:

 “In his zeal to justify 31 December, Mr Justice Abban indulged in judicial chicanery by attributing to Dr Busia a statement he did not make ¼In going out of his way to find factual material to support the case of the government Mr Justice Abban has abandoned the noble role of the judge as an umpire who holds an even balance between the parties who appear in court ¼There is no doubt that Mr Justice Abban’s judgment is tainted with politics. The impression created in his judgment is that of a judge bending over backwards to please the government. What is even more serious is that he has indulged in what is plain falsehood. This is bad in a judge whether it happened by accident, negligence or design especially, when the target of his falsehood, Dr Busia, is no longer alive to defend himself.

The Fourth Republican Constitution is in serious danger if judges, called upon to interpret the Constitution, are going to use

the Bench for what is manifestly politics of undisguised partisan nature; and in the process do violence to the truth.”

There is evidence that on the same day Mensa-Bonsu received through the post a letter dated 12 May, ostensibly written on the instructions of the Chief Justice, and signed by Mustapha Logoh as registrar of this court, and to which was attached what was supposed to be a true copy of page 28 of the judge’s opinion. The letter ended thus: “It was exactly the “Daily Graphic View” the judge quoted in his judgment.”

It should be noted that Mensa-Bonsu had addressed his letter to the judge with a copy only to the Chief Justice. It was the judge, not the Chief Justice, who was called upon to explain why he had ascribed to the late Prime Minister a speech he did not make. As I shall show presently, submitting what stands in the records of he court as a true copy of the reasons as delivered was no answer to the charge. What was required was an admission or a denial by the judge of the allegation made against him.

It appears that following the publication of 20 May 1994, Mr Justice Abban lodged a complaint with the Media Commission against the paper. In the 27 May 1994 edition of the paper, there appeared a full report on the judge’s complaint and the paper’s reaction to it. This was that they stood by their columnist but were prepared to render an unqualified apology if the Commission found that the allegation made against the judge was groundless. In an editorial of that same day the paper expressed surprise that the judge had not admitted his error and called upon the Commission to hold an impartial enquiry into the matter. Meanwhile, on 23 May 1994 Mensa-Bonsu sent a reply to Logoh in which he made it clear that he did not accept that what Logoh has sent him accurately recorded what the judge said in court. He made out a strong case that the judge had altered the text he read to meet the criticism that had been made of it. Again, no objection could have been taken to this letter, and none has been taken. This letter was also published in the 3 June 1994 edition of the paper.

The complaint to the Media Commission was never gone into because the judge later withdrew it and had the matter referred to the Attorney-General. Mensa-Bonsu, the editor of the paper and its publisher were summoned to the police station and asked to make statements. It seemed then that a charge of criminal libel was contemplated. Characteristically, the paper in its 4 November 1994 edition gave a full account of what transpired at the police station to its readers and published an editorial headed: “Abban puts Integrity of the Bench on the Line.” It wondered why he had withdrawn the complaint from the Media Commission to seek assistance from the courts. The passage in this lengthy editorial which the applicant finds offensive reads:

 “And, it is this clearly bad case which Mr Justice Abban expects the court to twist in his favour. What Mr justice Abban may not realise in his desperation in expecting his colleagues on the Bench to behave like lunatics, however, is that, he is, in fact, putting the integrity, credibility and respectability of the Bench on the line. And whether the men and women on the Bench would allow themselves to be reduced to such depth and also abused to save the face of a fellow prodigal benchman, remains to be seen. Ghanaians are watching developments with eagle’s eyes.”

The expected charge of criminal libel was not brought; instead, the present proceedings for contempt for scandalising the court were commenced against the three respondents. The application was supported by affidavits sworn by Mrs Adusa-Amankwa, Logoh, Irene Wuaku and the investigating police officer called Addo-Nkum. In his affidavit, Logoh said that after the judge had read his opinion, he handed it over to him, that he gave it to Irene to re-type and that upon completion she returned it to him. He said from what he had the judge did not attribute the passage to the late Prime Minister. Irene confirmed what Logoh had said in his affidavit.

Upon being served with the motion paper, statement and affidavits, the respondents filed affidavits of their own. They said that they were present in court when the judge read his opinion and that they heard him attribute the passage to the late Prime Minister. They supported their assertion with affidavits by Messrs Adjetey, Asiedu, and Annan, legal practitioners, who were among counsel who represented the plaintiffs in the case, and Moses Nettey, also a legal practitioner, who although not in the case was in court. Each of these gentlemen deposed to having heard the judge attribute the passage to the late Prime Minister. Mr Agyenim Boateng, Secretary-General of the New Patriotic Party, the plaintiffs, also made a similar declaration on oath. One Okerchiri Kwabena, also a legal practitioner, deposed to having obtained a copy of the opinion as read from Owusu-Ansah, Deputy Judicial Secretary, and how with Owusu-Ansah’s permission he made it available to Mensa-Bonsu for the purpose of making a photographic copy for his use.

One would have thought that faced with this formidable array of witnesses, the applicant would file an affidavit by the judge or other persons who were in court to deny that he attributed the passage to the late Prime Minister. Mrs Adusa-Amankwa did file another affidavit, but all she said was that she could not remember what the judge said. One can only wonder why she deposed to the affidavit at all if she was not in a position to assist the court to arrive at the truth. Logoh also filed an affidavit impugning the authenticity of the copy Owusu-Ansah was alleged to have given out to Kwabena and Mensa-Bonsu. Surely, if the truth were what the applicant was after, the better course would have been to ask Owusu-Ansah who, as the Deputy Judicial Secretary, occupies a more responsible position in the Judicial Service than Logoh, to depose to an affidavit. The impression created was that whereas Logoh could be manipulated Owusu-Ansah could not.

In the course of the argument, an attempt was made by Mr da Rocha, counsel for Mensa-Bonsu, to correct this regrettable state of affairs. However, the application to call Owusu-Ansah and one Tawiah who at one time acted as registrar of this court was turned down. It is a measure of the importance of getting to the bottom of this matter that three out of the seven judges refused to associate themselves with the decision to exclude oral evidence by the court’s own officers.

At this stage, Nana Akufo-Addo, counsel for the second and third respondents, obtained and filed an affidavit by Owusu-Ansah and a forensic expect called Owusu. It seems Tawiah declined to depose to an affidavit. Why he refused to do is now a matter for speculation. An attempt by Mr Amidu to have the two affidavits excluded failed. So we have before us the all-important affidavit of Owusu-Ansah. In it, he confirmed that it was he who made a copy of the opinion available to the first respondent. He stated in paragraphs 3 - 9 as follows:

 “3  That after the Supreme Court delivered its judgment in writ No 18/93, New Patriotic Party v Attorney-General on 8 March 1994, I obtained copies of the reasons for judgment of the judges of the court, including that of Mr Justice Abban, from Mr J D Tawiah, who was then Acting Registrar of the Supreme Court.

4    That later Mr Kwabena Mensa-Bonsu, the 1st respondent in SCM 77/93, came to me to ask for a copy of Mr Justice Abban’s reasons for judgment. I told him I had copies of the judgments some of which I had given to Mr Okerchiri Adusa Kwabena, an Accra legal practitioner, including that of Mr Justice Abban, and directed Mr Kwabena Mensa-Bonsu to go for the copy from Mr Okerchiri Adusa Kwabena.

5    Subsequently, Mr Kwabena Mensa-Bonsu returned the copy of Mr justice Abban’s reasons for judgment, which I had given to Mr Okerchiri Adusa Kwabena, to me.

6    That I read the reasons for judgment of Mr Justice Abban as I did the reasons for judgment of the other Justices of the Supreme Court in that case.

7    That subsequently, I read a publication in the May 27 to June 2 1994 issue of The Free Press weekly showing two competing versions of page 28 of the reasons for judgment of Mr Justice Abban. One version corresponded with page 28 of the reasons for judgment of Justice Abban which Mr J D Tawiah had given to me; the other version did not and was new to me.

8    That I therefore called on Mr J D Tawiah to find out whether he could explain the emergence of two competing versions of page 28 of the reasons of judgment of Mr Justice Abban.

9    That Mr J D Tawiah stated that the page 28 with which I was familiar was the one Mr Justice Abban handed over to him after delivery in court, and further that, subsequent to his giving me that copy, Mr Justice Abban called for and collected from him his Reasons for Judgment.”

In the other affidavit, the forensic expert offered an opinion that the copy marked MB1, which he obtained from the first respondent, and CTC, which came from Logoh, were the same except that a different typewriter was used to type page 28 of CTC. The inference was clear; after the opinion had been read and a copy, MB1 made, page 28 was extracted and replaced with another.

By leave of the court the applicant filed further affidavits. One was by Logoh to prove that he was appointed registrar of this court in March 1993. However, paragraph 6 of the affidavit shows that in October of that year he left the country for a course abroad. He did not give any indication as to when he returned to the country to resume duty, but said he was in court when the judges read their opinions on 8 March 1994. On the crucial issue of what Mr Justice Abban said when reading his opinion, he was strangely silent. The impression Logoh sought to convey was that Owusu-Ansah’s statement that he obtained a copy of the opinion from Tawiah could not be true. But it is a matter within our own knowledge that before Logoh was appointed, Tawiah had acted as registrar of this court for a number of years and that after his appointment Logoh was required to work under Tawiah’s supervision for several months. The documentary evidence he submitted to prove when he became registrar tells only half the story.

There was also an affidavit by Emmanuel Otoo, an officer of this court, who admitted to being the person who typed the opinion read by the judge. Faced with the fact that one page had a different type-face from the rest, he offered the unconvincing explanation that he began the typing of the manuscript in an office on the third floor of these premises and continued the typing in his own office on a different typewriter. Here, too, we have matter, which needed to be investigated. For, if the story were true, one would expect to see several pages of CTC having the same typeface as page 28.

Mrs Adusa-Amankwa came up with yet another affidavit. This time she offered her inexpert opinion that CTC and MB1 were not the same document. Addo-Nkum also deposed to another affidavit to which he attached the police statements made by the three respondents when they faced a charge of criminal libel. He alleged that there were inconsistencies between the matters deposed to in the affidavit of the first respondent and the statements he made to the police. Also that the second and third respondents had told an untruth when they said in their affidavits that they were in court when the judge read his opinion. I am satisfied that if counsel or the witness had taken the trouble to read the statements these irresponsible and reckless charges would not have been made. There is no inconsistency between the affidavit of the first respondent and his statement to the police, and the second respondent did say, in support of the first respondent’s assertion that he was in court, that “we were also in court.” The publisher said that he stood by what the editor of the paper had said. Nothing can be clearer than this.

What I find surprising is that even at the late stage it was not found necessary to persuade Tawiah or the judge whose conduct was in issue to depose to affidavits. If counsel were serious that regardless of what the judge actually said in court, we are bound to accept whatever appears in the Judgments Book as a true reflection of what took place in the court-room, they ought to have come clean on what the judge actually said in court. The position is that on one side there are affidavits deposing to what the judge said in court, while on the other there is complete silence.

I have examined CTC which Logoh has certified as a true copy of the opinion read by the judge and MB1 which Owusu-Ansah obtained from Tawiah and made available to Okerchiri Kwabena and Mensa-Bonsu. The task of determining whether the two documents are one and the same has been made rather easy by the large number of spelling and typing mistakes and corrections made in ink or with a typewriter. Among those which are to be found in both CTC and MB1 are the following:

Page 1     Line 1 - “original” mistyped as “oroginal”

Page 2     Line 14 - “the” written in ink above typed “and”.

Page 5     Line 36 - “judgment” mistyped as “juedment”.

Page         Line 29 - “adaptations” mistyped as “adoptations’.

Line 32 - “that” typed and placed between “reliefs” and “this”.

Page 13   Line 23 - “A” written in ink above mistyped “A” in

“JA”

27 - “d” written in ink above mistyped “d” in “learned”.

Page 14   Line 19 - “atrocities” misspelt as “attrocities”.

20 - “humiliating” mistyped as “humilating”.

Page 15   Line 10 - “have” written in ink above typed “has”.

Page 16   Line 18 - “be” written in ink and placed between

“to” and “void”.

Page 18   Line 15 - “exonerated” mistyped as “exnrated”.

                          31 - “subversive” mistyped as “subersive”.

Page 20   Line 19 - the name Limann misspelt as “Liman”.

Page 21   Line 2 - “criticism” misspelt as “criticizm’,

Line 4 -                       -ditto-

Line 10 - “celebrations” mistyped as “celebtations”.

22 - “coup d’etat” mistyped as “coup de tat”.

Page 22   Line 17 - “coup d’etat” mistyped as “coup de tat”.

Page 23   Line 6 - “create” mistyped as “creat”.

27 - “persuasive” misspelt as “persuassive”.

34 -“repercussions” misspelt as “repucursions”.

Page 24   Line 22 - “rallied” mistyped as “rellied”.

23 - “Britannica” misspelt as “Britanica”.

34 - “atrocities” misspelt as “attrocities”.

Page 25   Line 5 - “atrocities” misspelt as “attrocities.’

7 - “reminds” mistyped as “remids”.

11 - the letter “i” written in ink above first “o” in typed “hostoric”.

Line 15 - “interpret” misspelt as “interprete”.

26 - “atrocities” misspelt as “attrocities”.

Page 26   Line 6 - “atrocities” misspelt as “attrocities”.

7 - “on” written in ink above typed “of”.

Page 27   Line 26 - “Liberation” misspelt as “Libration”.

 29 -         -ditto-

35 -          -ditto-

Page 28   Line 2 - “Liberation” misspelt as “Libration.’

10 -          -ditto-

Page 29   Line 10 - “reported” misspelt as “repported”.

Page 30   Line 3 - “Liberation” misspelt as “Libration”.

Line 16 - the name Limann misspelt as “Liman”.

23 -          -ditto-

28 - “Liberation” misspelt as “Libration.’

29 - “Liberation” misspelt as “Libration”.

32 - “others” written in ink above typed word

“other”.

Page 31   Line 16 - “what” written in ink above typed word

“what’, which word is underlined in ink.

Line 19 - “hopelessness” mistyped as “hoplessness”.

Line 29 - the letter “c” written in ink above mistyped

“evidence”.

Page 32   Line  5 - “incarcerated” misspelt as “incacerated”.

Line 18 - “eminent” misspelt as “emminent”.

Line 21 - semi-colon punctuation mark made in ink.

Page 33   Line 32 - “between” in ink above mistyped

“tobween” which is cancelled and underlined in ink.

Page 34   Line 6 - “pertinent” misspelt as “petinent”.

Page 35   Line 14 - “out” typed and placed between “pointed”

and “elsewhere”.

Line 23 - “C” written in ink above “O” in mistyped

“Oolonial”.

Line 29 - “no” typed and placed between “have” and “significance”.

Page 36   Line 13 - “amount” written in ink above mistyped

“amount”.

Line 26 - “whereby” mistyped as “wherby”.

Line 33 - “holidays” written in ink above mistyped

“holidays”.

Page 39   Line 33 - “towards” typed and placed between

“directed” and “the morality of”.

Below all these, at page 40, appears a signature. Instead of trying to persuade us in argument that the signatures on CTC and MB1 are not identical, Mr Amidu would have done well to call the judge to testify on oath that the signature on MB1 was not his. I think Mr Amidu misconceived his duties as counsel in a case of this nature when he decided not to call the principal actor in the melodrama.

Mr Amidu drew attention to the fact that there are a few corrections in ink on CTC which do not appear on MB1. I have found the following:

Page 14   Line 20 - letter “i” written in ink and inserted

between “1” and “a” in mistyped “humilating”.

34 - word “of” written in ink and inserted

between “cerebration “and “14.’

Page 18  Line 31 - Letter “v” written in ink and placed

between “b” and “e” in mistyped “subersive”.

Page 23   Line 6 - letter “e” written in ink and placed after “t”

of mistyped “creat”.

Page 25   Line 7 - letter “n” written in ink and placed between

“i” and “d” in mistyped “reminds”.

Page 34   Line 6 - letter “r” written in ink and placed between

“e” and “t” in mistyped “petinent”.

But far from these corrections indicating that MB1 is a forgery, they rather confirm the statement in Owusu-Ansah’s affidavit that the judge at some point took back the opinion read by him. Looking at the further corrections, I have no doubt in my mind that they were made by the same person who made the corrections to be found in both CTC and MB1.

It is only at page 28 of MB1 and CTC that any real differences are discernible. They are five in number. First, at line 1 of MB1 the mistyped word “erra” has been corrected in ink by writing “era” above it. In CTC the word “era” is correctly typed. There is no correction in ink. Secondly, at line 7 MB1 the word “Government” has been mistyped as “Goovernment.” This error does not appear in CTC which has the word correctly typed. Thirdly, the sentence about the Daily Graphic and the late Prime Minister in MB1 reads:

“The Daily Graphic of Tuesday 24 February 1970 No 6033, carried the speech of Dr Busia on that day; and I will quote a few extracts from it.”

In CTC the same sentence reads:

“The Daily Graphic of Tuesday 24th February 1970 No 6033, carried the speech of Dr Busia on that celebration. I will however quote a few extracts from the “Daily Graphic View” that day…”

Fourthly, in MB1 the title of the extract is given in line 16 as, “Salute the gallant men”, whereas in CTC it is: “Salute to the gallant men”. Finally, in MB1 at line 39 the words “and police took” have been underlined, whereas in CTC they have not been underlined.

It is evident that page 28 of MB1 and CTC cannot both be what the judge read in court. One or the other must have been typed and inserted in the opinion as read at some later date. The question is: Which one? First of all, I ask myself: Is it at all likely that a person who mischievously alters the typed document of another person will make a correction thereon in ink in his own handwriting? I think not. Secondly, placed in the context of the previous sentence where it was stated that “Busia Government actually celebrated it [24 February] as a “Revolution Day” and the statement that in its edition No 6033 of 24 February 1970 the Daily Graphic newspaper “carried” the speech of the late Minister, the writer was clearly preparing the listener or reader to receive a quotation from the speech of the Prime Minister and not the editorial opinion of the paper.

There is, however, an even more cogent reason for believing that page 28 of CTC is not what the judge read in court. A careful examination of MB1 and CTC shows that pages 1 - 27 and 29 - 40 have the same typeface. When we come to page 28 the typefaces are different. Whereas the typeface of page 28 MB1 is the same as pages 1 - 27 and 29 - 40 of MB1 and CTC, page 28 of CTC is markedly different. This can be demonstrated beyond argument by comparing the figures 1, 3, 4, 6 and 7 at page 28 of CTC with the same figures on any other page of CTC or the whole of MB1. The differences are obvious to the naked eye. Only the blinkered would baulk at them. I am satisfied that any impartial assessment of the visual evidence must lead to the inescapable conclusion that the original page 28 of CTC was extracted and replaced with what now appears therein.

I am glad to find that the affidavit and visual evidence support my own recollection of what took place in court. Unlike Mrs Adusa-Amankwa who confesses to having a poor memory, or Mr Amidu who prefers to remain silent, I did listen carefully enough to the reading of the opinion and have a good enough memory to remember what the judge said. I heard him say clearly and distinctly that he was quoting a passage from a speech the late Prime Minister made in 1970. I reject as wholly false the suggestion that the judge said he was quoting someone or something called “Graphic View.” That term means nothing to us today. Anyone who wanted to quote the editorial opinion of the paper would refer to it as such and not “Daily Graphic View” which was apparently the by-line used in those days.

Before I proceed any further, let me answer those who may think that a judge is not entitled to rely on his own observations in coming to a decision. Nwizuk v Eneyok (1953) 14 WACA 354 was a land suit in which the plaintiff claimed ownership of some eighteen islands. The trial took place in Port Harcourt, Nigeria. After the parties and their witnesses had given evidence in court, the judge decided to inspect some of the islands in dispute. At the inspection, at which both parties were represented, it became obvious that much of the oral evidence was untrue. Two of the plaintiffs admitted to the judge that the evidence adduced on their behalf as to as least four of the islands was false in material particulars, and one of the defendants also admitted that their evidence as to two of the islands was false. The judge was astounded. In his judgement he referred to what took place at the inspection and branded both parties as liars. On appeal, it was argued that the admissions that parties made at the inspection were not part of the proceedings since those who made them were not put into the witness box for cross-examination. It was held that the judge was entitled to make use of what he saw and heard at the inspection. In this case, no affidavit has been filed to contradict those who say they heard the judge ascribe the quotation to the late Prime Minister. I am not surprised at this as I can also vouch that that was precisely what he did.

Article 126(2) of the Constitution gives the courts of this country power to commit for contempt to themselves. It states:

“The Superior Courts shall be superior courts of record and shall have the power to commit for contempt to themselves and all such powers as were vested in a court of record immediately before the coming into force of this Constitution.”

This provision has been repeated in section 36(1) of the Courts Act 1993 (Act 459). It is also to be found in the 1969 Constitution and in the Courts Act 1971 (Act 372). No one doubts that it includes the power to commit for words spoken or actions taken with intent to prejudice the outcome of pending judicial proceedings. What we are concerned with here is whether it includes what, in Re Read and Huggonson (1742) 2 Atk 291, 469, Lord Hardwicke LC described as “scandalising a court or a judge”, and in R v Gray [1900] 2 QB 36 at 40, Lord Russell of Killowen CJ described as “personal scurrilous abuse of a judge as a judge”.

In McLeod v St Aubyn [1899] AC 549 PC it was said that this class of contempt has become obsolete in England although, as they put it, it might still be needed “in small colonies, consisting principally of coloured populations.” Looked at even from that jaundiced point of view, the Privy Council thought that the respondent Acting Chief Justice of St Vincent, was not justified in committing the appellant to prison, and he was ordered to pay the costs of the appeal. Their Lordships said at 561:

“The power summarily to commit for contempt of court …is not to be used for the vindication of the judge as a person. He must resort to action for libel or criminal information...Hence, when a trial has taken place and the case is over, the judge or the jury are given over to criticism.”

The weight of judicial opinion is certainly against its use. In The Matter of a Special Reference from the Bahama Islands [1893] AC 138 the Privy Council held that although the offending newspaper article might have been made the subject of proceedings for libel, since it was not calculated to obstruct or interfere with the course of justice or the due administration of the law it did not constitute a contempt of court. And in Ambard v Attorney-General for Trinidad and Tobago [1936] AC 322, an appeal against a conviction for an article criticising alleged disparities in sentences passed by the courts for similar offences, the Privy Council said at page 335: “Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”

In the United States of America, so dear do they hold the right to freedom of speech that even the power to commit for words calculated to prejudice the outcome of pending proceedings is severely restricted.

In Bridges v California 314 US 252 - 305 Mr Justice Black said at 270 - 271:

“The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American privilege to speak one’s mind, although not always with perfect good taste, on all public opinion. For it is a prized American public institution. And an enforced silence, however limited, solely in the name of preserving the dignity of the Bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect.”

Mr Justice Frankfurter also said at 289:

“Judges as persons, or courts as institutions, are entitled to no greater immunity from criticism than other persons or institutions …There have sometimes been martinets upon the Bench as there have also been pompous wielders of authority who have used the paraphernalia of power in support of what they called their dignity. Therefore judges must be kept mindful of their limitations and of their ultimate public responsibility by a vigorous stream of criticism expressed with candour however blunt.”

He continued at 291 and 292:

“A publication intended to teach the judge a lesson, or to vent spleen, or to discredit him, or to influence him in his future conduct, would not justify exercise of the contempt power ¼The power should be invoked only where the adjudicatory process may be hampered or hindered in its calm, detached, and fearless discharge of its duty on the basis of what has been submitted in court.”

On the extension by some English judges of the power to cover scandalising the court, he said at 287:

“Such foolishness has long since been disavowed in England and has never found lodgement here.”

The example of the tiny State of Belize, formerly the colony of British Honduras, where such “foolishness” is firmly entrenched in their constitution is hardly one that should be held up to us for emulation; see Director of Public Prosecutions v Belize Times Press Ltd (1988) LRC (Const) 579.

In the United States, no one would have taken notice of Mr Gray when he described Mr Justice Darling in the Birmingham Daily Argus as “an impudent little man in horse-hair” who was “a microcosm of conceit and empty-headedness.” Again, it would have been considered no more than an exercise of the citizen’s right to free speech for the New Statesman to say of a libel action against an advocate of birth-control who had suggested that the editor of a paper which had declined to publish her advertisements was under Roman Catholic influence that she was unlikely to get a fair trial from a judge who subscribed to the Roman Catholic faith: see Rex v New Statesman, ex parte Director of Public Prosecutions (1928) 44 TLR 301. But even in England the eighteenth century attitudes which permitted the courts to attempt to silence advocates of press freedom like John Wilkes have slowly but surely given way to a greater regard for the liberty of the individual. In Secretary of State for Defence v Guardian Newspapers Ltd [1985] AC 339 at 347 Diplock LJ described the offence of scandalising the court as “virtually obsolescent in the United Kingdom”, adding that it has not been used for fifty years.

It seems that these proceedings were mounted in the belief that the court was precluded from looking beyond the official records of the court in deciding the issue as to what the judge said. In other words, the mere production of what purports to be a true copy of the proceedings is conclusive of matters in dispute. This is by no means the case. In Gbadago v Tsili (1955) 2 WALR 11, 219, the Native Appeal Court of Anlo State gave judgment orally in favour of the plaintiff in a land dispute. When the plaintiff obtained a copy of the judgment he discovered that it differed materially from that delivered orally in court, and to the advantage of the defendant. The plaintiff then brought an action in the Native Court for rectification of the judgment. This succeeded and the extraneous matter was deleted from the record book. An appeal to the Land Court failed, as did a further appeal to the West African Court of Appeal. Therefore, in the case before us, even though Logoh has certified CTC as a true copy of the opinion of the judge, it was open to the respondents to challenge the authenticity of page 28.

There being no evidence from the judge, it is impossible to say whether the attribution to Dr Busia of a speech he did not make, and which his admirers would consider as quite out of character, was deliberately done or was inadvertent. I think there was a need to admit the error, if error it be, and offer an explanation. If this had been done, this unfortunate episode would have blown over long ago, and this court would have been spared the embarrassment of sitting in judgment over the actions of one of their number. We may, indeed we must, deplore the vehemence of the language used in criticising the judge, but it was a matter of public interest whether Dr Busia had in fact spoken with approval of the overthrow by force of arms of the Nkrumah regime. If Dr Busia did not, anyone who had the evidence was entitled to lay it before the public and comment thereon.

In the Australian case of King v Nicholls (1911) 12 CLR 280 a newspaper published an article alleging that a judge owed his appointment to his affiliation to a political party. A motion to commit the editor for contempt was dismissed. In it’s ruling, the court said at 286 per Griffith CJ:

“I am not prepared to accede to the proposition that an imputation of want of impartiality to a judge is necessarily a contempt of court. On the contrary, I think that, if any judge of this court or of any other court were to make a public utterance of such character as to be likely to impair the confidence of the public, or of suitors or any class of suitors in the impartiality of the court in any matter likely to be brought before it, any public comment on such an utterance, if it were a fair comment, would, so far from being a contempt, be for the public benefit, and would be entitled to similar protection to that which comment upon matters of public interest is entitled under the law of libel.

The only question for us to determine here is whether these words are calculated to obstruct or interfere with the course of justice or the due administration of the law in this court. It being impossible to answer that question in the affirmative, no order should be made upon the motion.”

Here, too, it cannot be said that the words were calculated to obstruct or interfere with the course of justice or the due administration of the law in this court.

There is also the more recent Canadian case of R v Kopyto (1987) 47 DLR 213, where a lawyer whose client had lost a case granted an interview to a newspaper in which he said among other things: “This decision is a mockery of justice. It stinks to high hell.” He wondered if there was “any point in appealing and continuing this charade of the courts in this country which are warped in favour of protecting the police.” He was convicted of scandalising the court. On appeal to the Ontario Court of Appeal, it was held that although the words uttered by Mr Kopyto came within the definition of the offence of contempt of court in the Canadian Criminal Code, he had done no more than express his strongly-held views on a matter of public interest. Accordingly, he could seek protection under the provision in the Canadian Charter of Rights and Freedoms guaranteeing freedom of expression.

In countries like England and Australia where the right to freedom of speech is not a constitutionally guaranteed right, it is still possible for the judges to claim that they have power to determine which kinds of criticism of themselves they will permit. It is this fact that explains, for example, the decision in Gallagher v Durack (1985) LRC (Crim) 706 where the Australian courts showed their muscle by sentencing to a term of imprisonment a man whose conviction for contempt had been set aside by an appellate court. His crime? After his acquittal he told a press interviewer that he thought the court had been influenced by the public demonstration of support he had had from members of his trade union! In other jurisdictions such a statement would have been ignored. The reaction of the courts of Australia shows that the liberty of the individual may be threatened as much by judicial as by executive or legislative action.

Article 12(1) of our constitution enjoins the executive, legislature, the judiciary and all other organs of government and its agencies to uphold the fundamental human rights and freedoms. One of these, as indicated in article 21(1)(a), is freedom of speech and expression, which includes freedom of the press and other media. The only curb the constitution permits on this fundamental human right is to be found in clause 4(e). These provisions read:

“21 (1) All persons shall have the right to -

(a) freedom of speech and expression, which shall include freedom of the press and other media;

(4) Nothing in, or done under the authority of, a law shall be held to be inconsistent with, or in contravention of, this article to the extent that the law in question makes provision -

(e) that is reasonably required for the purpose of safeguarding the people of Ghana against the teaching or propagation of a doctrine which exhibits or encourages disrespect for the nation-hood of Ghana, the national symbols and emblems, or incites hatred against other members of the community;”

Under our constitution, the right to freedom of speech and expression may be curtailed for the purpose of safeguarding our people against the teaching and propagation of doctrines, which incite hatred against other members of the community. What may be proscribed under this head are religious and political doctrines, which tend to divide the nation and turn one section of the community against another. The provision does not sanction the curtailment of the right to freedom of speech and expression for the purpose of maintaining the dignity or authority of the court.

In exercising the power to commit for contempt, our courts must have regard also to the right of every person to express himself freely and openly on all matters of public concern whether they pertain to actions of the executive, the legislature or the judiciary. One can understand why it is that while a case is pending in court the right to comment thereon ought to be curtailed in the interest of a fair trial which the constitution guarantees for every individual; but it can hardly be said that when a verdict is given the judges, or the jury for that matter, should be shielded from criticism. The ordinary laws of libel, which prohibit the making of false defamatory statements about other members of the community, are the only check on any abuse of the right of free speech in circumstances such as these.

I would dismiss the motion.

AIKINS JSC. This motion asks for the committal of the respondents for their contempt of one of the Justices of this court (Mr Justice I K Abban) who sat and heard arguments from counsel in the case titled New Patriotic Party v Attorney-General [1994-95] GBR 1 and of this court, by scandalizing both Justice I K Abban and this court, in respect of the publication of some articles in The Free Press. The judgment in that case was delivered on 29 December 1993 and the reasons for the judgment were delivered on 8 March 1994. It was a split decision of 5 to 4 in favour of the plaintiff. The grounds upon which the applicant seeks the reliefs are as follows:

“(i) That on 9 May 1994 the 1st respondent wrote a letter to Mr Justice Abban entitled: Writ No 18/93: The New Patriotic Party versus The Attorney-General of Ghana in which he accused Mr Justice Abban a Supreme Court judge of misrepresenting the editorial opinion of the Daily Graphic as a speech made by Dr Busia in his reasons for judgment delivered by the Supreme Court on 8 March 1994.

(ii) That the Chief Justice to whom the letter of 9 May 1994 was copied caused the registrar of the Supreme Court by letter reference No W18/93/56 of 12 May 1994 to send to the 1st respondent a certified true copy of the relevant page of the reasons given by Justice Abban and pointed out that Justice Abban quoted the “Graphic View.”

(iii)            That without waiting for a response to his letter of 9 May the 1st, 2nd and 3rd respondents caused to be published in the 13 May to 19 May issue of The Free Press a report that the judge is a liar, a criminal and a political chicane.

(iv)            That in The Free Press newspaper publications of 20 May to 26 May 1994; and 27 May to 2 June 1994 the 1st, 2nd and 3rd respondents caused to be printed and published further scurrilous abusive materials against Justice Abban and the administration of justice.

(v) That by calling Justice Abban a liar, a criminal and a political and judicial chicane the conduct of the 1st, 2nd and 3rd respondents in the said publications constitutes a gross contempt of court in so far as they were calculated to erode public confidence in the administration of the law and impair the authority of the judiciary as an independent organ of state.

(vi)            That in the November 4 to November 10, 1994 issues of The Free Press the 2nd and 3rd respondents caused to be published an editorial in which the paper alleged among other things that “... it is this clearly bad case which Mr Justice Abban expects the court to

twist the case in his favour…what Mr Justice Abban may not realise in his desperation in expecting his colleagues on the Bench to behave like lunatics, however, is that he is, in fact, putting the integrity, credibility and respectability of the Bench on the line. And whether the men and women on the Bench would allow themselves to be reduced to such depth and also abused to save the face of a fellow prodigal benchman, remains to be seen. Ghanaians are watching developments with eagle’s eyes.

(vii) That the 2nd and 3rd respondents by casting insinuations at the independence and impartiality of members of the Bench and of the judiciary in the said editorial were in contempt of court in so far as they were calculated to shake public confidence in the authority of the law, the courts and are a baseless attack on the integrity or impartiality of the courts and judges.

(viii) That the publications and conduct of the 1st, 2nd and 3rd respondents have scandalized both Justice Abban and the courts of Ghana as they are particularly outrageous and constitute contempt of court.”

The learned Chief State Attorney further stated in paragraph 15 of her affidavit that:

“The 1st, 2nd and 3rd respondents caused to be printed and published in the May 20 to May 26, 1994 issue of The Free Press newspaper an article written by the 1st respondent and entitled “Judicial Chicanery” accusing Justice Abban among other things of being tainted with politics and that “the impression created in his judgment is that of a judge bending over backwards to please the government.”

The next publication referred to by her was the one published in the May 27 to June 2, 1994 issue of The Free Press which consisted of two front page news items entitled: “A Challenge to Media Commission” and “Media Commission Called In As Justice Abban Scandal Takes Dramatic Turn. He Is Accused Of Doctoring”, and another article at page 4 of the said publication entitled: “The Abban Scandal - Our Proof” which she said contained scurrilous abuses of the judge intended to bring him and judicial system into disrepute in the eyes of the public.”

The learned Chief State Attorney continued in paragraph 19 of her affidavit:

 “…the 1st, 2nd and third respondents caused to be printed and published in the June 3 to June 9 1994 issue of The Free Press a reply to a letter from the registrar of the Supreme Court forwarding an authenticated copy of the reasons of Justice Abban’s judgment, in which the 1st respondent cast insinuations and aspersions on Justice Abban and the judicial system by alleging that the certified copy of the judgment was not the judgment read by Justice Abban in court, thus imputing to Justice Abban and the Supreme Court the dishonest conduct of interfering with the reasons for judgment after it was read.”

She finally referred to a publication in the November 4 to 10, 1994 issue of The Free Press mentioned in ground (vi) of the grounds of the application above.

Counsel for the applicant submitted that “by calling Justice Abban a liar, criminal and a political and judicial chicane the 1st, 2nd and 3rd respondents’ conduct was contumacious of the judge and the judicial system as it was calculated to bring the court and the judge into contempt and lower the authority of the law, the judge and the court as an impartial and independent organ of State,” and “that the said publications also constitute a scurrilous abuse of a judge of the Supreme Court, and that such an attack on the personal character of the judge is contumacious of the judge, courts and judicial system.”

The publication of all these articles stems from an alleged misrepresentation in the judgment of Justice Abban attributing to Dr Busia an editorial opinion of the Daily Graphic issue of February 24, 1970 praising the celebration of 24 February 1966 coup d’etat.

This is the gravamen of the whole action, and has to be examined in detail. Two different versions of the quotation are contained in page 28 of the said judgment. According to the applicant what is contained in exhibit MB1 tendered by the 1st respondent was not the authentic copy of what was said by Justice Abban, but rather a forgery by the 1st respondent. This allegation has been vehemently refuted by the 1st respondent who avers that he personally heard Justice Abban say what is contained in that page on 8 March 1994 when delivering his judgment, and that what was contained in exhibit CTC tendered by the applicant was a doctored version of his speech.

In view of the sharp controversy on this particular quotation, the two versions must be thoroughly examined with a view to ascertaining which of them is the authentic original version that was read on March 8, 1994. Several persons have filed affidavits deposing to what they say they heard in open court on that day. The applicant has produced 4 or 5 such affidavits, and the respondents have also produced about 8 such affidavits.

The first person on the list of the applicant is Mustapha Habib Logoh, the Acting Registrar of the Supreme Court. This officer said that after the Supreme Court judges had read their reasons for judgement on 8 March 1994, all the written reasons were handed to him, and that later after the Chief Justice had received a letter dated 9 May 1994 from the 1st respondent, the Chief Justice asked him to produce the written reasons read by Justice Abban. This he complied with. Then he said in paragraph 18 of his affidavit:

“18. That the Chief Justice and myself went through the reasons delivered by Justice Abban and found that contrary to what Mensa-Bonsu had alleged, Justice Abban had quoted from the “Daily Graphic View” and not from Dr Busia’s speech - it was there in black and white.”

Later on in paragraph 30 of the affidavit he said:

“So that the alleged signed reasons for judgment obtained by Mensa-Bonsu were not the reasons for judgment read in Court on the 8th March 1994. He could not therefore have heard what he claimed to have heard in open court from a reading of those reasons for judgment which had been in my custody thereafter.” (Emphasis supplied).

This is rather strange! An experienced lawyer who had been attending court in a case that interested him, had written to the judge who read the reasons for his judgment that contrary to what was supplied him as contained in page 28 of his judgment, he heard the judge attribute to Dr K A Busia, former Prime Minister of Ghana, a statement praising the celebration of 24 February 1966 coup d’etat which the judge purported to quote from the Daily Graphic of Tuesday 24 February 1970. Then a newly enrolled lawyer who had just been appointed a District Magistrate Grade II and an Acting Registrar of the Supreme Court whose only interest and duty is to keep all the written reasons read by nine Supreme Court judges spanning over a period of about 8 hours in open court from about 10 o’clock in the forenoon to about 6:10 o’clock in the afternoon, gets up after six months of the reading of the written reasons for judgment to swear that an experienced and interested lawyer in the case could not have heard what he claimed to have heard in open court. This is preposterous.

The next person on the list is Irene Wuaku, a clerical officer, and the person said to have “typed the composite reasons for the judgment in the New Patriotic Party v Attorney-General supra.” She says in paragraph 7 of her affidavit:

“7. That I have seen a certified true copy of the composite reasons for judgment and it is an accurate and true reflection of reasons which I typed in composite form.”

Wonders will never end! How can such a clerical officer, a typist, six months after she had typed the composite reasons of Supreme Court judges who have quoted extensively decided cases to buttress their arguments, the reading alone of the written reasons covering a period of about 8 hours, swear positively that what had been shown to her was an accurate and true reflection of reasons which she typed in composite form. She must be telling blatant lies. I don’t believe what she said.

The next person is Louisa Amie Adusa-Amankwaa, a Chief State Attorney and one of counsel for the defendants in the New Patriotic Party v Attorney-General case [1994-95] GBR 1 and who averred she “was in court through the hearing and final disposal of the case by their Lordships reading their individual reasons for judgment.” She said in paragraph 5 of her affidavit:

“5 That I cannot and verily believe that it is not humanly possible for me to remember with photographic memory that Justice Abban read from either the “Graphic View” or Busia’s speech. It is for this reason that the Courts Act provides a mechanism for obtaining judgments of a court.”

Speaking for myself, I do not see the value and significance of this paragraph of her affidavit. The applicant is charging the 1st respondent with forging the judgment of Justice Abban, and for that matter one of the reliefs he is seeking is that the 1st respondent should be committed to prison for contempt of court for having commented on such forged document to the detriment of Justice Abban. One would expect some person to be put forward to say that he heard Justice Abban say that he was quoting from the ““Graphic View”.” No such person was available, and the Chief State Attorney, one of counsel in the case comes along simply to say that she has no photographic memory to assist her remember what the judge said. Where then do we stand?

Next on the list is the affidavit of Emmanuel Ogbarmey Otoo, who says he is attached to the Court of Appeal Registry. According to him he was the person who typed the manuscript of Justice Abban’s reasons for judgment in the case of the New Patriotic Party v Attorney-General supra. He said he first used a typewriter in an office at the 3rd floor, but when he could not finish typing it there he completed it in his office with another typewriter, taking as much as 3 days to complete. He said he took this typewritten draft reasons for judgment together with the manuscript to Mr Justice Abban, that Justice Abban made some corrections on this typewritten reasons and returned it to him for final typing. Otoo says that after he had typed this final draft he took it to Justice Abban, and it was this final copy that Justice Abban read in court on 8 March 1994. He does not say that he typed this final copy on different typewriters, nor that he was in court on 8 March when Justice Abban read his judgment, but simply says that what he finally typed was the one Justice Abban read in open court! How could he be all that sure that the page 28 of the copy in exhibit CTC was the one Justice Abban read in court? The impression Otoo also wants to create is that the different typewriters he used in typing Justice Abban’s manuscript accounts for why the typescript of page 28 of exhibit CTC has different characteristics from those of the rest of the pages of the judgment, ie pages 1-27 and 29-40. This cannot be true because his affidavit was silent on how he typed the final draft Justice Abban read in court. What an abysmal lie! It is unfortunate that officers of this institution can be cajoled to swear to false affidavits.

In contrast to the foregoing affidavits, we have those filed on behalf of the respondents by 8 persons. Three of these persons, Peter Ala Adjetey, Kwadwo Affram Asiedu and Ben Annan, were part of the legal team that appeared for the New Patriotic Party in Suit No 18/93 - New Patriotic Party v Attorney General, supra. All of them say they were in court on March 8, 1994 when all the nine judges read their opinions in open court. They say that in the reasons read by Mr Justice Abban in the case, he purported to be quoting extracts from a speech allegedly made by the late Dr Busia and said to have been carried by the Daily Graphic of Tuesday, 24 February 1970, in which Dr Busia was alleged, inter alia, to have not only praised and commended the military revolution of 24 February 1970, but also to have supported the celebration of the anniversary of the said revolution. They dispute that on that day Justice Abban in his opinion, said he was quoting from the views of the Daily Graphic for Tuesday, 24 February 1970.

One other person, Moses Adu-Akai Nettey, a barrister-at-law, in his affidavit said that he was also present in court on 8 March, 1994 when the nine judges of the Supreme Court read the reasons for their judgments, and that he heard Justice Abban say that he was quoting from the Daily Graphic of 1970 purporting to show that Dr Busia supported the 1966 coup d’etat, and that Justice Abban quoted extensively in his judgment what he asserted to be the view of Dr Busia. He said he was left in no doubt that the quotation represented the views of Dr Busia and not the views of the Daily Graphic.

The remaining four other persons, Kwabena Mensa-Bonsu, the 1st respondent, Joseph Agyenim Boateng, Secretary-General of the New Patriotic Party - the person who represented the New Patriotic Party in the New Patriotic Party v Attorney-General, Mr Eben Quarcoo, 2nd respondent and Mr Tommy Thompson, 3rd respondent all aver that they were in court on March 8, 1994 when the Supreme Court judges delivered their reasons for judgment, and that they heard Mr Justice Abban in the course of delivering his opinion read out a quotation on the anniversary celebration of the 1966 coup which he said was from the late Dr Busia’s speech carried in the Daily Graphic issue of February 24, 1970. According to the 1st respondent he had made special study of the speeches and writings of Dr Busia over the years and it struck him that the passage he heard Justice Abban quote did not sound like Busia, and was very much unlike his style.

I observe from paragraphs 23 and 24 of the affidavit of Mustapha Habib Logoh filed on November 10, 1994 that he said he was one day invited by the Chief Justice to his office where he met Justice Abban, the Judicial Secretary and the Chief Justice himself. He said “Justice Abban complained bitterly to the Chief Justice about the fact that somebody might have stolen his reasons for judgment and maliciously tampered with it to bring him and the administration of justice into disrepute.” (Emphasis supplied) Curiously enough the applicant did not think it fit to obtain an affidavit from Justice Abban to this effect, nor did Justice Abban, in whose interest the action was instituted, think it worthwhile and necessary to swear to an affidavit to reveal this alleged unfortunate situation and to clear the air of doubt that the passage he was quoting in his reasons for judgment on March 8, 1994 was from the “Daily Graphic View” of the Daily Graphic issue for Tuesday 24, 1970.

I observe also that in paragraphs 25 and 26 of Logoh’s affidavit (supra) he talks of the reference of Justice Abban’s complaint about this tampering with his reasons for judgment to the Media Commission and to the Attorney-General for investigation by the police. The paragraphs state:

“25 That a letter of complaint by Justice Abban to the Chief Justice to refer the matter to the Media Commission and a letter written by the Judicial Secretary to the Media Commission also later became the subject of scurrilous abuse of the judge and the administration of justice in some of The Free Press newspaper publications referred to in paragraph 21 above.

26 That after sometime when the contemptuous publications continued in The Free Press newspaper without any response from the National Media Commission, it came to my knowledge that Justice Abban had requested the Chief Justice to refer the matter of tampering with his reasons for judgment and the libellous materials being printed and published of him and the judicial system by Mensa-Bonsu and The Free Press to the Attorney-General for investigation by the Police.”

If Justice Abban was so anxious to have this tampering with his reasons for judgment investigated by both the National Media Commission and the police (which action was never pursued), it beats my imagination why it did not occur to either Justice Abban or the Attorney General to file an affidavit spelling out Justice Abban’s version of the quotation from the Daily Graphic issue of Tuesday, 24 February 1970.

The questions I have to consider now are whether Justice Abban’s judgment was tampered with after he had read it in open court on 8 March 1994, and if so by whom, and which of the versions on page 28 of exhibit MB1 and CTC was actually read in open court on 8 March 1994.

Page 28 of exhibit MB1 states as follows:

“It is remarkable to note that during the era of National Liberation Council, the latter decided to do away with 1 July as a public holiday, even though it was the day on which Ghana became the First Republic. Busia government, by Public Holiday Instrument 1970 (LI 649) added 1 October as a public holiday - to be celebrated as Second Republic Day. Busia Government continued to exclude 1 July - Republic Day - from the list of public holidays, but continued to celebrate 24 February as a public holiday under the heading ‘Liberation Day’. but as I stated earlier on, Busia Government actually celebrated it as a ‘Revolution Day’.”

The Daily Graphic of Tuesday 24 February 1970 No 6033, carried the speech of Dr Busia on that day; and I will quote a few extracts from it:

 “Salute the gallant men.

Today is the fourth anniversary of the 24th February 1966 revolution. Exactly four years ago today a grateful and surprised Ghana woke up to see the end of tyranny and injustice.

As the oppressive CPP regime was uprooted, a firm foundation for freedom and fair-play was laid in its place

As Ghanaians celebrate the historic event today, there is no better monument we can erect in the memory of the fallen gallant men than to uphold, at all times, the aims of the revolution.

We must also pay a tribute to the living, the gallant NLC men, who ably did the spade work for the democratic rule we have now.

However we should accept the fact that freedom has it limits and that the elected government has a national duty to check its abuses.

Indeed Ghana’s record in the last four years has vindicated the revolutionary action the army and police took…

We can only hope that Ghanaians will guard jealously the golden opportunity which now prevails and resolve to ensure that the fifth anniversary’ ¼”

And page 28 of exhibit CTC also states as follows:

“It is remarkable to note that during the era of National Liberation Council, the latter decided to do away with 1st July as a public holiday, even though it was the day on which Ghana became the First Republic. Busia Government, by Public Holiday Instrument 1970 (LI 649) added 1 October as a public holiday to be celebrated as Second Republic Day. Busia Government continued to exclude 1st July - Republic Day - from the list of public holidays, but continued to celebrate 24 February as a public holiday under the heading ‘Liberation Day’. But as I stated earlier on, Busia Government actually celebrated it as a ‘Revolution Day’.

The Daily Graphic of Tuesday 24 February 1970 No 6033, carried the speech of Dr Busia on that celebration. I will however quote a few extracts from the “Daily Graphic View” that day:

“Salute to the gallant men.

Today is the fourth anniversary of the 24 February 1966 revolution. Exactly four years ago today a grateful and surprised Ghana woke up to see the end of tyranny and injustice.

As the oppressive CPP regime was uprooted, a firm foundation for freedom and fair-play was laid in its place…

As Ghanaians celebrate the historic event today, there is no better monument we can erect in the memory of the fallen gallant men than to uphold, at all times, the aims of the revolution.

We must also pay a tribute to the living, the gallant NLC men, who ably did the spade work for the democratic rule we have now…

However we should accept the fact that freedom has its limits and that the elected government has a national duty to check its abuses.

Indeed Ghana’s record in the last four years has vindicated the revolutionary action the army and police took.…

We can only hope that Ghanaians will guard jealously the golden opportunity which now prevails and resolve to ensure that the fifth anniversary’…”

No attempt was made by the applicant in the first instance to show that exhibit CTC had been forged or tampered with by the 1st respondent, or that exhibit MB1 was not a genuine copy of the original judgment read by Justice Abban in open court on 8 March 1994, until the 1st respondent caused affidavits to be filed by John Albert Owusu, a Government gazetted documents examiner and the executive director of Primus Forensic Consultancy, and Emmanuel Asamoah Owusu-Ansah, Deputy Judicial Secretary.

In his affidavit filed on 30 January 1995, Emmanuel Owusu-Ansah deposed that after the Supreme Court had delivered its judgment in New Patriotic Party v Attorney-General on 8 March 1994, he obtained copies of the reasons for judgment of the judges of the court, including that of Mr Justice Abban, from Mr J D Tawiah, who was at the material time Acting Registrar of the Supreme Court. He said that later the 1st respondent came to him and asked for a copy of Justice Abban’s reasons for judgment. He said he directed the 1st respondent to go for a copy from one Mr Okerchiri Adusa Kwabena, an Accra legal practitioner, to whom he had given copies of the judgments of the judges who sat on that case. Subsequently, he said, the first respondent returned to him the copy of Mr Okerchiri Adusa Kwabena. He continued in paragraphs 7, 8 and 9 of his affidavit as follows:

“7 That subsequently, I read a publication in the May 27 to June 2 1994 issue of The Free Press weekly showing two competing versions of page 28 of the reasons for judgment of Mr Justice Abban one version corresponding with page 28 of the reasons for judgment of Justice Abban which Mr J D Tawiah had given to me; the other version did not and was new to me.

8 That I therefore called on Mr J D Tawiah to find out whether he could explain the emergence of two competing versions of page 28 of the reasons of judgment of Mr Justice Abban.

9 That Mr J D Tawiah stated that the page 28 with which I was familiar was the one Mr Justice Abban handed over to him after delivery in court, and further that, subsequent to his giving me that copy, Mr Justice Abban called for and collected from him his reasons for judgment.”

In his affidavit filed on January 27, 1995, John Albert Owusu, who was also a retired Chief Superintendent of Police, said that he was contracted by the law firm, Akufo-Addo, Prempeh and Co to conduct an independent forensic examination of copies of exhibits MB1, MB5, MH1 and a certified true copy of exhibit CTC reasons for judgment of Abban JSC. He averred that he conducted a very careful examination of the documents with the aid of optical and measuring instruments on the typescripts of the exhibits (supra) and wrote a report of his examination and the results thereof. The results were as follows:

(1) All the pages of exhibit MB1 including page 28 were typed on the same typewriter.

 (2) Exhibit MH1 (copy of the relevant page 28 of the alleged reasons for judgment of Abban JSC said to have been read in open court on March 8, 1994) was not typed on the same typewriter which typed all the pages of exhibit MB1.

(3) Exhibit MB5 and MH1 (page 28) were typed on the same typewriter.

(4) Page 28 of exhibit CTC was not typed on the same typewriter as the rest of the pages of that judgment.

(5)(a) Exhibits MB1 and CTC are the same document and were typed on the same typewriter except page 28 of CTC which was typed on a different typewriter.

(b) Furthermore, the same author made all the corrections in exhibits MB1 and CTC, and            in fact one is a photocopy of the other with the exception of page 28 of CTC.

(6) Page 28 of exhibit CTC and exhibit MH1 (page 28) are the same documents typed on the same typewriter.

(7) The signature on page 40 of exhibit MB1 is the same (photocopy) as the signature on page 40 of exhibit CTC.

In his report attached to his affidavit, John Albert Owusu made the following observations:

(1) It was observed that the typescripts in exhibit “MH1” (page 28) MB5 and page 28 of CTC had identical characteristics.

(2) The typescripts on page 28 of exhibit MB1 and the rest of the pages of MB1 had identical characteristics.

 (3) The typescripts in exhibit MB1 differed in structure and identifying characteristics from the typescripts in exhibits “MH1” and MH5, and page 28 of CTC, and note the different structures in the construction of the figures 1, 3, 4, 6 and in the two groups especially figures 3, 4, and 7.

(4) The typescripts of page 28 of CTC and the rest of the pages in the CTC were different. However the rest of the pages of the CTC had the same identifying characteristics.

(5) The typescripts of MB1 and CTC had the same characteristics except page 28 of the CTC.

(6) It was also observed that the corrections and marks made in “CTC’, were the same writing and exact replica in exhibit MB1. These occurred in both exhibits on pages 2, 13, 15, 16, 20, 25, 26, 30, 31, 33, 35, and 36. However the correction and mark on page 28 of exhibit MB1 line one was not found in page 28 of CTC even though the same author made the other corrections.

(7) The signatures in page 40 of exhibit MB1 and page 40 of CTC bear the same identifying characters.”

Mr Okerchiri Adusa Kwabena, a legal practitioner, in his affidavit filed on November 21, 1994 confirmed that the Deputy Judicial Secretary, Mr Owusu-Ansah gave him signed copies of the judgments of Justice Abban and Justice Adade to photocopy and return to enable him get the other judgments of their Lordships, and that he gave the two judgments to the 1st respondent on the instructions of the Deputy Judicial Secretary.

The learned Deputy Attorney-General raised a preliminary objection to the admissibility and sufficiency of the independent affidavits of John Albert Owusu and Emmanuel Asamoah Owusu-Ansah, but he was overruled by this court. To counteract the effect of these affidavits the applicant filed two affidavits one by Louisa Amie Adusa-Amankwaa, Chief State Attorney and one of counsel for the applicant and the other by Emmanuel Ogbarmey Otoo, a Judicial Service Officer attached to the Court of Appeal.

As stated above Ogbarmey Otoo tried to give the impression that the differences in typing character of the reasons of Justice Abban’s judgment can be attributed to pressure on typewriters in the Judicial Service. His reasons were very flimsy and ridiculous.

The learned Chief State Attorney stated in paragraphs 5 and 6 of her affidavit that the Attorney-General had requested the Ghana Police Service to have the exhibits in dispute examined by its documents examiner and have the findings, observations and conclusions filed in this court, but it was most unlikely that the report of the police documents examiner would be available for submission to this court due to constraint of time even though he had examined the original alongside exhibits MB1, CTC and MH1.

In the absence of the police expert opinion, the learned Chief State Attorney gave an outline of her own point of view on exhibits MB1 and CTC, and stated that the two exhibits cannot be the same document typed from the same typewriter except page 28 of CTC which was typed on a different typewriter as deposed to in paragraph 5 of John Albert Owusu’s affidavit for the following reasons:

(1) A causal comparison of exhibits MB1 and CTC shows clearly that while the hand scripts in the nature of insertions or corrections to exhibit MB1 can be found on pages 13, 15, 30, 31, 32, 33 and 36, that on exhibit CTC can be found on pages 2, 8 13, 14, 16, 17, 18, 25, 26, 31, 32, 34, 35 and 36.

(2) The handmade scripts were made in pen and pencil on the original of the document which I studied but on 8, 14, 17, 18, 25 and 34 the hand-made scripts were made by pen while the insertions appearing in exhibit CTC do not disclose the instrument with which they were made, and those that appear in exhibit MB1 do not also show the instrument with which they were made.

(3) A number of short vertical lines/marks, can be found on all the pages on the document marked exhibit MB1 but they cannot be found on the document marked exhibit CTC or the original document. That also suggests that one document is not an exact photocopy of the other.

(4) Page 33 of the document marked CTC was found to be shorter in length than the rest of the pages/papers of the same exhibit CTC.

(5) Typeface of exhibit MB1 appears to be bigger than those on exhibit CTC. That suggests that one document is not the same as the other.

(6) The signature on exhibit CTC and the original document appears longer than that in exhibit MB1.

The learned Deputy Attorney-General has attacked the affidavit of Asamoah Owusu-Ansah as hearsay, and has urged that this court should ignore it as inadmissible. As stated above what Owusu-Ansah said was, first, that he obtained copies of the reasons for judgment of the court, including that of Mr Justice Abban, from J D Tawiah, who was then Acting Registrar of the Supreme Court, and secondly, that when he called on J D Tawiah to explain the emergence of the two compelling versions of page 28 of the judgment of Justice Abban after he had read about this in The Free Press issue of 27 May to 2 June 1994, J D Tawiah told him that page 28 with which he Owusu-Ansah was familiar with was the one Justice Abban handed over to him after delivery in court, and that Tawiah said Justice Abban later collected it from him.

The Attorney-General argues that this is hearsay. This may well be so. Both Owusu-Ansah and J D Tawiah are officers of the Judicial Service. Owusu-Ansah is the Deputy Judicial Secretary, and J D Tawiah was the Acting Registrar of the Supreme Court for some time, and now Senior High Court registrar - two very senior officers in the Judicial Service. After the Deputy Attorney-General had finished addressing this court, counsel for the 1st respondent applied to call both Owusu-Ansah and J D Tawiah to give oral evidence but this court by a majority of 4 to 3 did not accede to counsel’s request. Later the respondents tried to get J D Tawiah to file an affidavit, but Tawiah, it is understood, expressed his unwillingness to swear to any affidavit unless he was asked to do so by the court. Considering the peculiar nature of this case, one would have thought that to get to the truth of this matter, the court would call J D Tawiah to swear to an affidavit, more so when it was not deemed necessary or appropriate for the applicant to get Justice Abban, the pivot of the controversy, to swear to an affidavit to assist the court, in the words of counsel for the 2nd and 3rd respondents, “in coming to a conclusive determination of this highly crucial and decisive point.”

Since the punishment for contempt of court is of a punitive character (a fine, a term of imprisonment or both) proof of offence must be beyond reasonable doubt as in all criminal cases. However, the learned Deputy Attorney-General has urged that he carries the burden only as far as establishing that the publications were intemperate and scurrilous of a judge, and that once the applicant is relying on a certified true copy of a judgment in proper custody of Logoh, the Acting Registrar of the Supreme Court, the applicant does not have to prove the authenticity of that document, and that it is for the respondents who challenge its authenticity to lead evidence to the contrary. I think the learned Deputy Attorney-General does not fully appreciate the burden cast on the applicant. If it is the applicant’s case that Logoh was the Acting Registrar at the time that Justice Abban read his judgment and he was the one to whom Justice Abban gave his judgment immediately after delivering his judgement, and Owusu-Ansah is also saying that the judgment was given to J D Tawiah from whom he collected a copy thereof, at least the respondents have been able to create a doubt and this should have been resolved by calling upon Justice Abban to swear to an affidavit to support Logoh’s assertion, and that exhibit CTC was what the judge read in court. That was not done. Since exhibit CTC, especially page 28 thereof, is the gravamen of the applicant’s case, that doubt tended to cripple his whole case, and he cannot be heard to say that the truth of the genuineness of page 28 of exhibit MB1 is of no consequence, and that once somebody has used strong language to criticise the judge that person is guilty of contempt of court.

As to the first leg of Asamoah Owusu-Ansah’s affidavit, he says that at the material time J D Tawiah was the Acting Registrar of the Supreme Court to whom Justice Abban’s judgment was given on March 8, 1994 after the learned judge had read it in open court. As a Deputy Judicial Secretary he should know who was the Acting Registrar at the time. But strange enough the learned Deputy Attorney-General is now inviting this court, which handled the 31st December case, to say whether our reasons for judgment were handed over to Mustapha Logoh or any other person. This shows that the Deputy Attorney-General admits some doubt is created in this case on this issue. Considering, therefore the modus operandi of the court on this issue, I refuse to express any opinion now.

Counsel for the applicant is also urging that on a proper interpretation of the affidavit of Asamoah Owusu-Ansah, exhibit MB1 does not come from proper custody and must be rejected, and Mustapha Logoh’s exhibit CTC accepted as the genuine judgment of Justice Abban. In my view this submission is untenable.

The 1st respondent has explained how he came by exhibit MB1. This exhibit is obviously relevant to the proceedings before the court. Asamoah Owusu-Ansah has averred in his affidavit that he gave the document to the 1st respondent through Okerchiri Adusa Kwabena and Okerchiri has also confirmed this in his affidavit. By section 51(2) of the Evidence Decree 1975, all relevant evidence is admissible except as otherwise provided by any enactment. The law has it that where papers and other subjects of evidence are even illegally taken from the possession of the party against whom they are offered, or are otherwise unlawfully obtained, it constitutes no valid objection to their admissibility, provided they are pertinent to the issue. Because the court will not take notice of whether they were obtained lawfully or unlawfully, nor will it raise an issue to determine that question: see Legatt v Tollervey (1811) 14 East 301 and Doe v Date (1842) 3 AB 619. It does not matter how one comes by the document, even if it is stolen it will be admissible. See R v Leatham (1861) 8 Cox CC 498 at p 501. In Kuruma v R [1955] 1 All ER 236 at 239, PC, Lord Goddard CJ emphasised that:

“…the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned how the evidence was obtained.”

Even in the case of original documents, if a privileged instrument accidentally strays into the hands of a stranger, who makes a copy of it, or if a solicitor, in violation of his duty, permits a stranger to take a copy of an instrument with which he was confidentially entrusted, the secondary evidence so obtained is admissible if notice to produce the original is duly given and the production is resisted on the ground of privilege: see Calcraft v Guest [1898] 1 QB 759 and Lloyd v Mostyn (1842) 10 M & W 478, Republic v Accra Circuit Court; ex parte Appiah [1982-83] GLR 129.

The learned Deputy Attorney-General is arguing that Mustapha Logoh, Acting Registrar of the supreme Court, is the only person who can produce and tender Justice Abban’s reasons for judgment in evidence. He contends the custody of it should properly be in the said registrar, and that admission of the judgment into evidence from any other source leaves it unauthenticated and unidentified. According to counsel, unless its authenticity as well as the contents is proved, its reception in evidence would offend the rule against hearsay.

This may be a correct representation of the hearsay rule at common law, but it has now suffered a disinclination to relax its rigours by the courts of the United Kingdom and this country. See Myers v Director of Public Prosecutions [1965] AC.1001, HL where at p 1021 Lord Reid stated as follows:

“I have never taken a narrow view of the functions of this House as an appellate tribunal. The common law must be developed to meet changing economic conditions and habits of thought, and I would not be deterred by expressions of opinion in this House in old cases, but there are limits to what we can or should do. If we are to extend the law it must be by the development and application of fundamental principles. We cannot introduce arbitrary conditions or limitations, that must be left to legislation…”

By the Criminal Evidence Act 1965, the United kingdom Parliament altered substantially the common law rule in the United Kingdom, and in Ghana the Evidence Decree 1975 (NRCD 323) now regulates the authentication and admissibility of such documents and not section 71(3) of the Courts Act 1993 (Act 459) which, according to the Deputy Attorney-General, makes the admission of such documents like judgments of the court in the custody of the Registrar admissible without further proof. Section 71 of the Courts Act deals with the preservation of minutes of the proceedings and notes of evidence taken at the hearing or trial in court, which are required to be signed and certified as true copies by the officer of the court authorised by the judge. It is these that have to be admitted, without proof, as evidence of the proceedings and of statements made by witnesses.

Even though section 149(1) of the Evidence Decree states that authentication or identification of writings made or kept in the regular course of business may be by the testimony of a representative of the business who is responsible for keeping the records or familiar with them though he did not make the writing or see it made, section 136(1) of the Decree provides that -

“136(1) Where the relevancy of evidence depends upon its authenticity or identity, so that authentication or identification is required as a condition precedent to admission, that requirement is satisfied by evidence or other showing sufficient to support a finding that the matter in question is what its proponent claims.” (Emphasis supplied.)

To satisfy this requirement the 1st respondent procured John Albert Owusu, a Government-gazetted document examiner and a retired Chief Superintendent of Police, to submit a report which stated, among other things, that exhibits MB1 and CTC are the same document and typed on the same typewriter except page 28 of CTC which was typed on a different typewriter. In other words that exhibit MB1 has characteristics common to exhibit CTC except page 28 of CTC.

It is significant that section 136(1) of the Decree does not require that a particular representative (like Mustapha Logoh) must be called to authenticate or identify a record prior to its reception in evidence. All that the section demands is a sufficient showing to support a finding that the document in question is what its proponent claims. For the avoidance of doubt, section 136(2) provides that: “Permissible means of authentication or identification include, but are not limited to, those provided in sections 137 to 161,” and section 149 which provides that a representative of the business may be called to identify a record issuing from the business house, only refers to one of the means by which authentication or identification may be effected. It does not limit the mode of identification.

As a matter of fact section 144 which provides that authentication or identification may be by evidence of distinctive characteristics, appearance, contents, substance or internal patterns, makes it clear that, even with business records, the mode of authentication or identification is not limited to the testimony of a representative of the business. The sole requirement of the law is evidence or other showing, sufficient to support a finding that the matter in question is what the proponent claims.

I have examined carefully the disputed exhibits together with the original of exhibit CTC lodged with the Supreme Court registry, and I agree with the results of John Albert Owusu’s examination and comparison of the disputed exhibits referred to him together with his observations and conclusions contained in his report, exhibit “JOA” attached to his affidavit. My examination revealed further that with the exception of pages 1 and 6 (apart from the disputed page 28) of exhibits CTC, MB1 and the original of exhibit CTC where there are no significant typing alterations or amendments/ corrections all the remaining pages of the three documents have the same typing alterations, hand written amendments and/or corrections. Even a close study of page 1 of the three exhibits shows the word “celebration” in line 9 has the letter “a” typed on another letter that cannot be deciphered.

I also observe that the corrections and marks made in CTC and the original of CTC were the same and exact replica in exhibit MB1 at pages 13, 15, 16, 25, 26, 30, 31, 35 and 36. Secondly, I observe that though there is no handwritten amendment or correction in the first line of page 28 of exhibit CTC, there is a handwritten correction in the first line of page 28 of exhibit MB1; it is the word “era” which is written above the typewritten word “erra”. I have carefully examined the letters “e”, “r”, “a” in the word “era” on this page with the letter “e” in the word “be” at page 16 and the word “between” at page 33 of exhibit CTC, and the letter “a” in the word “what” at page 31 and the word “holidays” at page 36 of exhibit CTC and the original of CTC, and I am convinced that the word “era” in the first line of page 28 of exhibit MB1 was in the same handwriting of the person who wrote “be”, “between,” “others”, “holidays” and “what” at pages 16, 33, 31 and 36 of exhibit CTC and the original of CTC.

As the learned Deputy Attorney-General admits that exhibit CTC is the exact photocopy of the alleged original copy of the judgment of Justice Abban lodged with the registry of the Supreme Court, and that the corrections on the two documents were made in the handwriting of Justice Abban, I find as a fact and conclude that the correction in the first line of page 28 (“era”) or exhibit MB1 was made by Justice Abban and not by the 1st respondent or any other person.

I have also carefully considered the reasons given by the learned Chief State Attorney which made her come to the conclusion that exhibits MB1 and CTC cannot be the same document and therefore typed on the same typewriter “except” page 28 of CTC which was typed on a different typewriter as deposed to in paragraph 5 of John Albert Owusu’s affidavit. The first reason is that her comparison of exhibits MB1 and CTC showed clearly that while the handscripts in the nature of insertions or corrections to exhibit MB1 can be found on pages 13, 15, 30, 31, 32, 33 and 35 that on exhibit CTC can be found on pages 2, 8, 13, 14, 16, 17, 18, 25, 26, 31, 32, 34, 35 and 36. My examination of the two documents or exhibits shows that all the insertions or corrections to exhibit MB1 stated by her appear clearly in exhibit CTC, and all those that according to her are found in exhibit CTC can also be clearly found in exhibit MB1. Added to these, the same insertions and or typewritten corrections appear at pages 4, 5, 7, 9, 10, 11, 12, 19, 20, 21, 22, 23, 24, 27, 29, 37, 38, 39 and 40 of both exhibits MB1 and CTC.

The second reason of the learned Chief State Attorney talks about handmade scripts in pen and pencil on the original of the document while the insertions appearing in exhibits CTC and MB1 do not disclose the instrument with which they were made, and for that matter the documents are different. The simple answer is that when one takes a photocopy of a document having handmade scripts in pen and pencil, the photocopy cannot portray identical characters.

The next reason is that there are short vertical lines/marks on MB1, and these do not appear on CTC. The lines/marks are just peculiar to a particular photocopying machine used in taking the copies.

Then she said that page 33 of CTC was found to be shorter in length than the rest of the pages of the same exhibit CTC. I least expected this sort of comparison. She also said that the typeface of exhibit CTC appears to be bigger than that on exhibit MB1. She said this difference suggests that the first document is not the same as the second. Surely, this should not have created any problem for her because the difference is only due to an adjustment of the photocopying machine used in taking the copy.

Finally she said that the signature on exhibit CTC and the original document appears longer in length than that in exhibit MB1. My comparison shows that the signatures are the same as stated by John Albert Owusu in his observation in his report - one is a photocopy of the other.

I now proceed to give my views on page 28 of exhibit MB1 and that of exhibit CTC and the alleged original of the Reasons for judgment of Justice Abban lodged with the Registry of the Supreme Court. The second paragraph of page 28 of exhibit MB1 contains, inter alia, the following:

“The Daily Graphic of Tuesday 24 February 1970 No 6033, carried the speech of Dr Busia on that day; and I will quote a few extracts from it,

“Salute the gallant men. Today is the fourth anniversary of the 24th February 1966 revolution. Exactly four years ago today…”

However, the second paragraph of page 28 of exhibit CTC and the alleged original judgment lodged with the registry of the Supreme Court contains the following:

“The Daily Graphic of Tuesday 24 February 1970 No 6033, carried the speech of Dr Busia on that celebration. I will however quote a few extracts from the “Daily Graphic View” that day.

“Salute to the gallant men.

Today is the fourth anniversary of the 24 February 1966 revolution. Exactly four years ago today…”

A close reading of the two passages shows clearly that whereas the former, ie the attribution of the quotation to Dr Busia is syntactic and flows textually with the sense and logic of the reasons for judgment, the latter quotation does not flow logically with the textual reasoning of the judgment. The second sentence “I will however quote a few extracts from the “Daily Graphic View” that day “has a disjointed relationship with the first sentence, both together forming an incoherent thought.

In the result it is my judgment that Justice Abban’s judgment that was read in open court on 8 March 1994 was tampered with, and this was done by Justice Abban himself after he had read it in open court, and not by the 1st respondent as alleged, and that page 28 of exhibit MB1 was the one Justice Abban read in open court on 8 March 1994.

The affidavit evidence shows that when the 1st respondent read exhibit MB1 he wrote exhibit MB3 to Justice Abban pointing out to him that his signed reasons for judgment in the 31st December case, the passage in the judgment which purported to be a verbatim speech made by Dr Busia on 24 February 1970, was in fact the full text of an editorial of the Daily Graphic of the same date, and that what he had done in his judgment was to misrepresent the editorial opinion of the Daily Graphic as a speech made by Dr Busia. The 1st respondent pointed out to him that that was an inexcusable error, and forwarded to him photocopies of the front and back pages of the Daily Graphic edition of 24 February 1970, No 6033 which contained the report of Dr Busia’s speech and the “Daily Graphic View”. This letter was copied to the Chief Justice, and The Free Press which, according to 1st respondent, published it with its comments.

He said that since the matter evoked much public interest he wrote an article “about the erroneous attribution of the Daily Graphic editorial to Dr Busia who was dead and was not in a position to answer back from the grave. The article was titled: “Judicial Chicanery.” It contains the following:

“(2) He [ie Justice Abban] sought to justify the celebration of 31st December not by reference to arguments advanced before him or upon the recognition that the suit involved interpretation of Article 3(3) of the Constitution. He sought refuge in the past to justify the present. His reference to what happened in the past and the behaviour of past Governments on the celebration of holidays may be passable political argument. It certainly is not legal argument.

 (2)      JUDICIAL CHICANERY

In his zeal to justify 31st December, Mr Justice Abban indulged in judicial chicanery by attributing to Dr Busia a statement he did not make. After exhuming the Daily Graphic edition of 24 February 1970 from the archives, the learned judge pontificated as follows:

‘Busia Government continued to exclude 1 July - Republic Day - from the list of holidays but continued to celebrate 24 February as a public holiday under the heading “Liberation Day.” But as I stated earlier on, Busia Government actually celebrated it as a “Revolution Day.” The Daily Graphic of Tuesday 24 February 1970 No 6033, carried the speech of Dr Busia on that day; and I will quote a few extracts from it:

      ‘We salute the gallant men

Today is the fourth …’

(3) In the first place, Dr Busia never made this so-called speech which Mr Justice Abban attributed to him. It is a pity that the learned Supreme Court judge either by gross negligence or outright chicanery should have attributed it to him. Dr Busia’s broadcast was not reproduced in the Daily Graphic of 24 February 1970 No 6033 as alleged. It was rather paraphrased in the front and back pages of that edition. What Mr Justice Abban attributed to Dr Busia was that paper’s editorial view which was boldly headed: “Graphic View.” It is difficult to see how this bold heading could have escaped the judge’s attention.

(4) In the second place, the overriding consideration is that: Is it legitimate for a judge, in any court, to go fishing for facts which neither of the parties has deemed fit to bring to his attention or of which he has not been invited to take judicial notice?

(5) In going out of his way to find fanciful material to support the case of the government Mr Justice Abban has abandoned the noble role of the judge as an umpire who holds an even balance between the parties who appear before a court. In the words of Lord Greene, master of the Rolls, Mr Justice Abban “descended, so to speak, into the arena of conflict and had his vision clouded by the dust of the conflict.

 (6)            Another aspect of Mr Justice Abban’s chicanery is that he set his standard of proof too high, even though the proof he required was not germane to the issue. He admonished the plaintiff as follows:

‘The court was not even furnished with evidence as to opinion polls, scientifically conducted as is done in other countries to show the percentage of those who did not like the celebration.’

(7) There is no doubt that Mr Justice Abban’s judgment is tainted with politics. The impression created in his judgment is that of a judge bending over backwards to please the government. What is even more serious is that he has indulged in what is plain falsehood. This is bad in a judge whether it happened by accident, negligence or design especially, when the target of his falsehood, Dr Busia, is no longer alive to defend himself.

The Fourth Republican Constitution is in serious danger if judges, called upon to interpret the constitution, are going to use the Bench for what is manifestly politics of undisguised partisan nature, and in the process do violence to the truth.” (Emphasis supplied.)

The article by the 1st respondent containing the above quotation is what was published in The Free Press issue of Friday May 20 to Thursday May 26, 1994. What is stated in The Free Press issue of May 27 to June 2, 1994, is The Free Press view and not that of the 1st respondent. I have carefully examined the two publications and I fail to see anything scurrilous and abusive against Justice Abban and the administration of justice as the plaintiff seems to say in his ground (iv) upon which he seeks his reliefs. The heading of Mensa-Bonsu’s article is “Judicial Chicanery.” The word “chicanery” simply means “legal trickery or false argument.” If Justice Abban read page 28 of exhibit MB1, as I have found as a fact, can his action not aptly be described as legal (or judicial) trickery or false argument? What offence has Mensa-Bonsu then committed by describing this opinion as “judicial chicanery”? I think he has not committed any crime.

Furthermore The Free Press publication in its issue of May 13 to 19, 1994 quotes, as far as 1st respondent is concerned, just his letter addressed to Justice Abban.

There is nothing in this letter that scandalises the learned judge, by calling him a liar, a criminal and a political chicane as is portrayed in the applicant’s ground (iii). What 1st respondent did was to criticise the judgment of Justice Abban after this had been delivered in open court. In my view the criticism by the 1st respondent is accurate and fair. As Lord Hardwicke recognised in the course of his speech in the case of In re Read and Huggonson 2 Atk 471 , “when a trial has taken place and the case is over, the judge or the jury are given over to criticism.” See also McLeod v St Aubyn [1899] AC 549, PC at 561, 1st respondent’s criticism cannot, in my view, amount to contempt of court. In R v Commissioner of Police of the Metropolis, ex parte Blackburn (No 2) [1968] 2 All ER 319, CA it was held that criticism of the court and of judicial decisions, however rumbustious, whether or not in good taste, and despite its inaccurate statement of fact, was not contempt of court but was within the limits of the inalienable right of every individual to freedom of speech which the courts had always unfailingly upheld. I think this is a good exposition of the law and I adopt it.

After all the 1st respondent is just pointing out an error in the judgment of Justice Abban. If there is an error, and it is exposed, this cannot in my view amount to contempt of court. The error in this context related to quoting in full the editorial of a newspaper and attributing it to Dr Busia. If this error is established the passage becomes misleading and dishonest as long as it is not suggested that the mistake was inadvertent. The use of the word “chicanery” to describe the situation cannot, in my view, be said to be an intemperate or abusive language.

The publications in The Free Press newspaper by the 2nd and 3rd respondents have been referred to earlier in this judgment and there is no need to repeat them. Learned counsel for the applicant has urged that the publications were actuated by malice, were intemperate and scurrilous, and constitute a deliberate contempt of court by scandalising Justice Abban, the Supreme Court and the judicial process, especially as they charged Justice Abban with being a liar, a criminal and a political chicane. To buttress his argument learned counsel cited a number of decided cases including Rex v Freeman The Times, November 18, 1925, Rex v Vidal October 14, 1922, Rex v Editor of the New Statesman, ex parte Director of Public Prosecutions The Times Law Reports, Friday, March 2, 1928 at 301 and The Queen v Gray [1900] 2 QB 37.

I think these cases ought to be examined carefully with a view to assessing their relevance to the present case and their effect on it. In Rex v Freeman (supra) the court comprising the Lord Chief Justice, Mr Justice Avory, and Mr Justice Sankey, ordered Freeman to be imprisoned for eight months for contempt of court, and expressed the hope that his mental state would be kept under observation. The order was made on the motion of the Attorney-General, calling on Freeman to answer for his contempt in publishing abusive letters to and concerning Mr Justice Roche, who in January 1924, dismissed an action brought by Freeman against the Royal Liver Friendly Society. Freeman had been plaintiff in an action before Mr Justice Roche on January 16 and 17, 1924, and in those proceedings he was not so successful as he had hoped to be. He did not appeal, but began to assail the learned judge with letters and postcards containing the grossest calumny and vituperation. In one letter he had said to the learned judge: “You are a liar, a coward, a perjurer …You aided Lord Sheffield in a felony.” He said that he was entitled to say these things with a view to forcing the learned judge to take proceedings against him. The facts of this case contained nothing that entitled Freeman to charge the learned judge with being a liar, a coward and a perjurer.

In Rex v Vidal (supra) the contempt arose from the publication of certain posters in Carey-Street near the law courts. The matter arose out of a case Vidal v Vidal and Wilson in the divorce court, before the learned President. The defendant who was related to one of the parties to that case was dissatisfied with the result and so he caused posters to be exhibited in which, among other things, he charged the learned President with being a traitor to his duty, and with defrauding the course of justice for the benefit of one of the parties to a case tried before him. In delivering judgment the Lord Chief Justice said that if there had been reasonable argument and expostulation, that would pass without serious notice, but to say of a learned judge that he has given active and complete support to a conspiracy to suppress evidence, that he “has defrauded the course of justice” is scurrilous abuse of the worse description, and amounts to contempt of court. In this case also no reasonable argument or expostulation was offered against any judicial act as contrary to law or the public good.

In Rex v Editor of the Statesman, ex parte Director of Public Prosecutions (supra) Clifford Dyce Sharp, the editor of the New Statesman, was called upon to show cause why he should not be attached for contempt of court in respect of the following paragraph publicised in the New Statesman on January 28, 1928, which, it was alleged, was calculated to lower the authority of Mr Justice Avory and bring him into contempt:

“We cannot help regarding the verdict given this week in the libel action brought by the Editor of the Morning Post against Mr Marie Stopes as a substantial miscarriage of justice. We are not at all in sympathy with Dr Stope’s work or aims, but prejudice against those aims ought not to be allowed to influence a court of justice in the manner in which they appeared to influence Mr Justice Avory in his summing up…”

In delivering the judgment of the court, Lord Hewart, the Lord Chief Justice said that in the opinion of the court the meaning of the words complained of was quite free from ambiguity. He said they meant what they said, namely, that a person who held certain views could not hope for a fair hearing in a court presided over by the learned judge who was named. Here too no reasonable argument or expostulation was offered against any judicial act as contrary to law or the public good.

In both this case and Rex v Vidal the Lord Chief Justice who delivered the judgment of the court cited with approval Reg v Gray  [1900-3] All ER 59 where at page 62 Lord Russell, delivering the unanimous judgment of the court, said:

“It cannot be doubted…that it does constitute a contempt of court, but as these applications are happily of an unusual character, we have thought it right to explain a little more fully than is perhaps necessary what does constitute a contempt of court, and what are the means which the law has placed at the disposal of the judicature for checking and punishing contempt of court.

Any act done or writing published calculated to bring a Court or a judge of the court into contempt or to lessen his authority, is a contempt of court.”

Later he stated that the contempt in issue was of the class described by Lord Hardwicke in re Read and Huggonson (1742) 2 Atk 291 at 469 as “scandalising a court or a judge, and continued:

“¼but that description of that class is to be taken subject to one - and an important qualification. Judges and courts are alike open to criticism, and if reasonable argument or expostulation is offered against any judicial act as contrary to law or the public good no court could or would treat that as contempt of court.” (Emphasis supplied.)

Here a reasonable argument or expostulation has been offered by the 2nd and 3rd respondents against a judicial act of Justice Abban contrary to law or the public good, in that in his judgment he had attributed to Dr Busia a statement Busia never made ie, the editorial view of the Daily Graphic which was boldly headed: “Graphic View.”

Any person who tells a lie can be charged with perjury, and perjury is a crime. Therefore to call such a person, if he is a judge, a liar or a criminal cannot, in my view, amount to contempt of court. After all a liar is a person who tells an untruth.

Queen v Gray itself is an interesting case. In that case one Wells was indicted at the Birmingham Assizes for uttering and publishing certain indecent words, and for publishing an indecent book. The case came to be tried before Darling J and before the trial Darling J made some observations in court, warning all persons concerned, including the press of Birmingham, against the publication of any of those indecent details, “taking care, at the same time, that his observations should not in any sense prejudice the matter to be tried, because he was careful to point out that, although necessarily indecent matter would be put in evidence, it did not follow the publication of it in the actual case necessarily constituted a criminal offence.”

Wells was convicted, and whilst the Birmingham Assizes were still continuing and Darling J was sitting as one of Her Majesty’s judges of Assize, Gray wrote and published in the Birmingham Daily Argus, of which he was editor, an article headed “A Defender of Decency.” It was written with reference to the observations made by Darling J before the trial of Wells, and may be described in the words of Lord Russel of Killowen CJ as being “personal scurrilous abuse of the judge as a judge.”

In an affidavit made by Gray himself he described the article thus: “In writing the article…I used language referring to Mr Justice Darling in terms which were intemperate, improper, ungentlemanly, and void of the respect due to his Lordship’s person and office…I deeply regret the publishing of the article and the inexcusable and insulting language in which it referred to one of Her Majesty’s judges, and I humbly apologise to his Lordship and to the court for my conduct, which I now, upon consideration, see reflected not only upon the individual judge but upon the Bench of judges, and the administration of justice.”

Lord Russell of Killowen, CJ in giving judgment for the court, composed of himself, Grantham and Phillimore JJ said: “It is not too much to say that it is an article of scurrilous abuse of a judge in his character of a judge - scurrilous abuse in reference to the conduct of the judge while sitting under the Queen’s Commission, and scurrilous abuse published in a newspaper in the town in which he was still sitting under the Queen’s Commission. It cannot be doubted … that the article does constitute a contempt of court…” He then continued to make the pertinent statement or observation referred to above. He said in [1900-3] All ER Rep 59 at 62:

“Any act done in writing calculated to bring a court or a judge of the court into contempt or to lower his authority, is a contempt of court. That is one class of contempt. Another class is, any act done, or writing published, calculated to obstruct or interfere with the due course of justice or the lawful process of the court. That is another class of contempt. The former class belongs to the category which Lord Hardwicke characterised as “scandalising a court itself.” ¼that description of that class is to be taken subject to one qualification - and an important qualification. Judges and courts are alike open to criticism if reasonable argument or expostulation is offered against any judicial act as contrary to law or the public good. No court could or would treat that as contempt of court.” (Emphasis mine.)

It will be observed that in this case the publication was manifestly uncalled for under the circumstances, unlike the instant case, and the court was right in finding the publication a contempt of court punishable by the court on summary process. Gray’s case can be distinguished from the instant case, and cannot therefore be used as an authority to buttress up the argument of the learned Deputy Attorney-General urging this court to attach the 2nd and 3rd respondents for contempt of court.

As was pointed out by Lord Morris when delivering the judgment of their Lordships in McLeod v St Aubyn [1899] AC 549, PC at 561:

“Committals for contempt of Court are ordinarily in cases where some contempt ex facie of the Court has been committed, or for comments on cases pending in the Courts. However, there can be no doubt that there is a third head of contempt of Court by the publication of scandalous matter of the court itself. Lord Hardwicke so lays down without doubt in the case of In re Read and Huggonson 2 Atk 471. He says: one kind of contempt is scandalising the court itself. The power summarily to commit for contempt of court is considered necessary for the proper administration of justice. It is not to be used for the vindication of the judge as a person. He must resort to action for libel or criminal information. Committal for contempt of Court is a weapon to be used sparingly, and always with reference to the interests of the administration of justice. Hence, when a trial has taken place and the case is over, the judge or the jury are given over to criticism.” (Emphasis mine.)

His Lordship concluded by saying that: “Committals for contempt of Court by scandalising the court itself have become obsolete in this country.” (Emphasis mine.)

Lord Russell in Gray’s case was very much concerned with the proper use of the court’s jurisdiction in a case of contempt. He said at p 41 of the report that it is a jurisdiction to be exercised with scrupulous care, to be exercised only when the case is clear and beyond reasonable doubt; because, if it is not a case beyond reasonable doubt, the courts will and ought to leave the Attorney-General to proceed by criminal information. The case under consideration is a doubtful one; if it is not a case beyond reasonable doubt, and in my view this court ought not to entertain it.

The learned Deputy Attorney-General also laid a lot of emphasis on the English House of Lords decision in Attorney-General v Times Newspaper Ltd [1973] 3 All ER 54. In that case the House of Lords overturned the decision of the Court of Appeal discharging an injunction granted by the Divisional Court restraining the proprietors of The Sunday Times from publishing an article showing that a drug company called Distillers had not exercised due care to see that their drug thalidomide was safe for pregnant mothers before they put it on the market. The Court of Appeal had discharged the injunction on the grounds, inter alia, that the article contained comments which the authors honestly believed to be true on matters of outstanding public interest and did not prejudice pending litigation since the litigation had been dormant for several years and no active steps had been taken or were likely to be taken to bring it before the courts. The House of Lords in upholding the injunction granted by the Divisional Court held (i) that it was contempt of court to publish an article expressing an opinion on the merits of a specific issue which was before the court for determination in circumstances such that the fair trial of the action would be prejudiced, and (ii) that it was a contempt of court to use improper pressure to induce a litigant to settle a case on terms to which he did not wish to agree.

The case itself did not concern a matter that had been disposed of by the court, as in the instant case, but the Deputy Attorney-General used it to hammer home the Attorney-General’s right to bring before the court any matter which he thinks may amount to contempt of court and which he considers should in the public interest be brought before the court. With respect to cases dealt with by the courts Lord Reid, Lord Simon of Glaisdale and Lord Cross of Chelsea observed that proper criticism of a judgment already given but under appeal would not amount to contempt. And Lord Simon also observed at p 82 that once the proceedings are concluded, the paramount interest of the public now is that it should be fully appraised of what has happened, and hear unhampered debate on whether the law, procedure and institutions which it had ordained have operated satisfactorily or call for modification. That is exactly what the respondents have done in the instant case.

I have drawn a lot of inspiration from the Blackburn case, and this has helped me in arriving at my conclusions in the instant case. In that case the article complained of made references to the Court of Appeal and the House of Lords which were found to be erroneous, vis-a-vis the instant case where the main article referred to an error committed by one of the judges who sat on the case. The salient passages in the English article were quoted in the judgment of Lord Denning MR in the manner following:

“The recent judgment of the Court of Appeal is a strange example of the blindness which sometimes descends on the best of judges. The legislation of 1960 and thereafter has been rendered virtually unworkable by the unrealistic, contradictory and, in the leading case, erroneous, decisions of the courts, including the Court of Appeal. So what do they do? Apologise for the expense and trouble they have put the police to? Not a bit of it. Lambaste the police for not enforcing the law which they themselves had rendered unworkable and which is now the subject of a Bill, the manifest purpose of which is to alter it. Pronounce an impending dies irae on a series of parties not before them, whose crime it has been to take advantage of the weaknesses in the decisions of their own court. Criticise the lawyers, who have advised their clients. Blame Parliament for passing Acts which they have interpreted so strangely. Everyone, it seems, is out of step, except the courts… The House of Lords overruled the Court of Appeal …it is to be hoped that the courts will remember the golden rule for judges in the matter of obiter dicta. Silence is always an option.”

The speeches of Lord Denning MR and Lord Salmon in the Court of Appeal are illuminating and instructive. They touch on freedom of speech and freedom of the Press and every man to make a fair comment, even outspoken comments, on matters of public interest which is also enshrined in article 21(1)(a) of our Constitution 1992. Lord Denning stated:

“That article is certainly critical of this court. In so far as it referred to the Court of Appeal, it is admittedly erroneous. This court did not in the gaming cases give any decision which was erroneous, nor one which was overruled by the House of Lords. But is the article a contempt of court?

This is the first case, so far as I know, where this court has been called on to consider an allegation of contempt against itself. It is a jurisdiction which undoubtedly belongs to us but which we will most sparingly exercise: more particularly as we ourselves have an interest in the matter.

Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on sure foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself. It is the right of every man, in Parliament or out of it, in the Press  or over the broadcast, to make fair comment, even outspoken comment on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that those who criticise us will remember that, from the nature or our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication. Exposed as we are to the winds of criticism, nothing which is said by this person or that, nothing which is written by this pen or that, will deter us from doing what we believe is right, nor, I would add, from saying what the occasion requires, provided that it is pertinent to the matter in hand. Silence is not an option when things are ill done.

So it comes to this: Mr Quintin Hogg has criticised the court, but in so doing he is exercising his undoubted right. The article contains an error, no doubt but errors do not make it a contempt of court. We must uphold his right to the uttermost.” (Emphasis supplied.)

To support this opinion Lord Salmon also said at page 155:

“The authority and reputation of our courts are not so frail that their judgments need to be shielded from criticism, even from the criticism of Mr Quintin Hogg. Their judgments, which can, I think, safely be left to take care of themselves, are often of considerable public importance. It is the inalienable right of everyone to comment fairly upon any matter of public importance. This right is one of the pillars of individual liberty - freedom of speech, which our courts have always unfailingly upheld. It follows that no criticism of a judgment, however vigorous, can amount to contempt of court, providing it keeps within the limits of reasonable courtesy and good faith. The criticism here complained of, however rumbustious, however wide off the mark, whether expressed in good taste, or in bad taste, seems to me to be well within those limits.” (Emphasis supplied.)

Then later he said:

“No one could doubt Mr Hogg’s good faith. I, of course, entirely accept that he had no intention of holding this court up to contempt; nor did he do so. Mr Blackburn complains that Mr Hogg has not apologised. There was no reason why he should apologise, for he owes no apology, save, perhaps, to the readers of Punch for some inaccuracies and inconsistencies which his article contains.”

These are words of wisdom, and I adopt every bit of them. At the same time, like Lord Salmon, I entirely accept that the respondents had no intention of holding this court up to contempt; nor did they do so. There was no reason why they should apologise, for they owe no apology. If the Blackburn case had come before any of our courts I am sure the initial reaction of a number of our judges would have been that a contempt of court had been committed and so Quintin Hogg must be imprisoned.

Alternatively, are we so uncultured in the Fourth Republic, after so many years of gaining our independence, to fit ourselves in the same social and political background as obtained in St Vincent in the late 1890’s to measure up to the following opinion of Lord Morris in McLeod v St Aubyn, where after approving of the opinion of Lord Hardwicke in the case of In re Read and Huggonson (supra) that committals for contempt of court by scandalising the court itself had become obsolete in Britain, and that the courts in Britain were satisfied to leave to public opinion attacks or comments derogatory or scandalous of them, said:

“But it must be considered that in small colonies, consisting principally of coloured populations, the enforcement in proper cases of committal for contempt of court for attacks on the court may be absolutely necessary to preserve in such a community the dignity of and respect for the court.”

I think we are in this century civilised enough to be outside that environment. The publication concerning Justice Abban may be said to be libellous, but that cannot necessarily be a contempt of court unless it is calculated to obstruct or interfere with the course of justice or the due administration of the law: See In the matter of a Special Reference from the Bahama Islands (1893) AC 138, and The King v Nicholls (1911) 12 CLR 280, High Court of Australia which I approve.

The Deputy Attorney-General says that any publication calculated to bring Justice Abban into contempt or to lower his authority is a contempt of court, and that since Justice Abban is a member of the panel of this court that sat on the 31st December case, that publication is a contempt of the Supreme Court. This in my opinion is unfounded and cannot be supported in the sense it is contended for. He relies on the language of Lord Russell of Killowen in Reg v Gray (supra). As to what Lord Hardwicke characterised as “scandalising a court or a judge,” Lord Morris pointed out in McLeod v St Aubyn (supra) that prosecutions for that class of contempt are

practically obsolete in England, and speaking for myself I do not see the wisdom in maintaining it in Ghana. It may be argued that every defamatory publication concerning a judge may be said to bring him into contempt as that term is used in the law of libel, but I do not think that it necessarily follows that everything thus said of a judge amounts to a contempt of court. That distinction was pointed out by a Committee of the Privy Council to which the question was referred by the Secretary of State in 1892 in the case of In the matter of a Special Reference from the Bahama Islands (supra) where the Chief Justice of the Colony was held up by a publication to public ridicule in the grossest manner, representing him as an utterly incompetent judge, and a shirker of his work, suggesting that it would be a providential thing if he were to die. Though the Judicial Committee did not, as was in vogue at the time, give a formal judgment, it reported that the letter complained of, though it might have been made the subject of proceedings for libel, was not, in the circumstances, calculated to obstruct the law, and therefore did not constitute a contempt of court: see the King v Nicholls (supra). I do not think in the instant case it is possible to say that what was said about Justice Abban is calculated to obstruct or interfere with the course of justice in the Supreme Court, more so when in the first place Justice Abban appeared to consider the issue as a personal matter and referred it to the National Media Commission through the Chief Justice, and later to the police through the Attorney-General for investigation.

It is my view also that though the relevant publications may be said to have been strong and rumbustious in parts, they were published in good faith and in honest belief of their truth, and in the exercise of the respondents’ right to freedom of expression. The intention behind the publications was, in my judgment to uphold the independence and integrity of the Supreme Court as the highest court of justice in our judicial system. Justice, as Lord Atkin put it in Ambard v Attorney-General for Trinidad and Tobago [1936] AC 322, PC, “is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful even though outspoken, comments of ordinary men.”

I would dismiss the application.

BAMFORD-ADDO JSC. On 10 November 1994 the Attorney-General initiated contempt proceedings against the respondents at the Supreme Court. The 1st respondent is a private legal practitioner and a columnist of The Free Press newspaper, the second is the editor of the said newspaper and the third respondent company, Tommy Thompson Books Ltd the printers, publishers and proprietors of The Free Press

The charge of contempt of court is in respect of the publication in The Free Press of contumacious and scandalous matter concerning Mr Justice Abban, a Supreme Court judge, calculated to erode public confidence in the administration of justice and the law and to impair the authority of the judiciary. The said judge was one of the members of a panel of nine judges which heard the case of New Patriotic Party v Attorney-General [1994-95] GBR 1, popularly called the 31st December case. Judgment in the case was given on 29 December 1993 and reasons for the judgment delivered on the 8 March 1994. The judgment was a majority judgment of 5 to 4 in favour of the New Patriotic Party. On 8 March 1994 each of the nine judges read their individual judgments and according to 1st respondent he was in court that day and heard Mr Justice Abban read his reasons.

On 9 May 1994 the 1st respondent wrote a letter to the said judge in which he accused him of wrongly attributing at page 28 of his judgement the editorial opinion of the Daily Graphic newspaper, to Dr Busia: A summary of Dr Busia’s speech was contained in the same Daily Graphic of Tuesday February 24 1970. According to 1st respondent, when he heard this in court he decided to obtain a copy of Mr Abban’s signed reasons, to find out whether what he had heard was correct. He therefore asked Mr Owusu-Ansah Deputy Judicial Secretary for a copy of the written reasons. Mr Owusu-Ansah directed him to obtain a copy of the reasons from lawyer Okerchiri Adusa Kwabena to whom he had earlier given a copy. First respondent said he found that what he had heard the judge say in court was what was contained in the written, signed judgment (herein after referred to as exhibit MB1). He made a photocopy and returned the document to Mr Owusu-Ansah who said he replaced it in the registrar’s office. It is to be noted that exhibit MB1 was not a certified copy of the judge’s reasons - at that time, the registrar of the Supreme Court had not certified the document. The letter of 9 May 1994 was copied to the Chief Justice who investigated the accusation contained therein, and caused Mr Logoh, the registrar of the Supreme Court to send a certified copy of the page 28 complained of, to 1st respondent pointing out to him that in the certified copy of Mr Abban’s judgment (exhibit CTC) at page 28 showed that what the judge quoted at page 28 of his reasons, is the “Daily Graphic View” and not Dr Busia’s speech as alleged by 1st respondent. Before receipt of this letter 1st respondent sent a copy of his letter of 9 May 1994 to The Free Press which published it together with comments in the issue of 13 to 19 May 1994, under the caption: “Justice Abban is a liar.” It is expedient to quote certain portions of the said article as I would be referring to them later in this judgment. The article in parts stated:

“… the learned Supreme Court judge committed one of the most grievous and unpardonable legal crimes against the media, the judiciary and the people of Ghana. In his display of political chicanery and bamboozelment of Ghanaians the learned Supreme Court judge lifted the whole editorial comment of Daily Graphic newspaper of Tuesday February 24, 1970 No 6033 and portrayed it as a speech made by Dr K A Busia, Ghana’s Prime Minister in the Second Republic which to all intents and purposes, is most outrageous in the field of legal issues… the bamboozle displayed by Mr Justice I K Abban in lifting of Graphic editorial and making it a speech delivered by the late Prime Minister to support his NDC government…” (Emphasis mine.)

After this, 1st respondent did not allow the matter to lie, he replied to the registrar on 23 May 1994 to the effect that he had compared page 28 of MB1 with page 28 of the “certified copy” sent to him, but was still of the view that what he heard Mr Justice Abban say in court was not what the “certified copy” of page 28 stated. The letter dated 23 May was also published in the June 3 to June 9, 1994 issue of The Free Press under the title: “Abban scandal … Abban scandal …Abban scandal’, “Mensah-Bonsu tells Supreme Court: ‘I heard it all’.”

In the issue of The Free Press of 20 May to 26 May 1994 another article appeared at page 8 of the newspaper under column: “Sentiments of K Mensah-Bonsu” titled: “Judicial Chicancery.” That article contained some of the accusations which the Attorney-General has described as “gross abuse” of the judge. These parts are the following:

“In his zeal to justify 31st December, Mr Justice Abban indulged in judicial chicanery by attributing to Dr Busia a statement he did not make… In the first place, Dr Busia never made this so-called speech which Mr Justice Abban attributed to him. It is a pity that the learned Supreme Court judge, either by gross negligence or outright chicanery, should have attributed it to him…Another aspect of Mr Justice Abban’s chicanery is that he set his standard of proof too high, even though the proof he required was not germane to the issue. There is not doubt that Mr Justice Abban’s judgment is tainted with politics. The impression created in his judgment is that of a judge bending over backwards to please the Government.” (Emphasis mine.)

Yet again the respondents published in the May 27 to June 2, 1994 issue of The Free Press two items namely: (a) “Justice Abban scandal takes dramatic turn. He is accused of doctoring” and (b) a front-page comment under the title “A challenge to Media Commission.” “It is stated that Mr Justice Abban is accused of doctoring his version of his judgment as a subterfuge to free himself from scandal.”

Again in the issue of The Free Press of 4 to 6 November 1994 under an editorial titled “Abban puts integrity of the Bench on the line” appeared among other things, these remarks. “It is therefore the height of mischief for Mr Justice Abban to withdraw his case at a time a report on it was allegedly being prepared. This is most unfortunate coming from no mean a person. Running away from the NMC is enough proof of his guilty conscience yet he expects to establish his innocence on the Bench. The question that must disturb all right thinking Ghanaians is how can Mr Justice Abban then expect from the Bench what he felt he could not gain from the MNC, without insulting the integrity of the courts? Is Mr Justice Abban not implying that the judges at the courts are lunatics - indeed zombies - and therefore, he expects them to twist in his favour a case which cannot stand on its mosquito feet even at the Media Commission? …The fetish which Mr Justice Abban is making of the so-called “certified true copy” is therefore nothing but mischievous, frivolous and vexatious we beg to submit … And whether the men and women on the Bench would allow themselves to be reduced to such depth and also abused (sic) to save the face of a fellow prodigal benchman, remains to be seen. Ghanaians are watching developments with eagle’s eyes” (Emphasis mine.)

These are the publications which the Attorney-General has said are scandalous abuse of a judge, contumacious of the court, and calculated to bring the administration of the law into disrepute. He submitted that the act of the respondents has scandalised the court, and it is likely to lower the authority of the courts and impair public confidence in them. What the court has to decide is whether calling a judge, in his capacity as a judge a liar, a criminal and a partial judge, a judge who practices political and judicial chicanery scandalises the court, and amounts therefore to contempt of court.

The Superior Courts of record in England have always exercised at common law the power to commit for contempt. This power, it had been said is inherent in their constitution and coeval with their institution. In Ghana the Superior Courts of record inherited this common law power and even though our Criminal Code 1960 (Act 29) in section 8 specified that no person shall be liable to punishment by the common law yet section 10 thereto preserved the common law power of a court to punish a person for contempt of court. The 1969 Constitution article 102(5), the Constitution 1979, article 114(6) and the present Constitution 1992 in article 126(2) have empowered the Superior Courts of record in this country to commit for contempt of court. The Constitution 1992 in article 127 also guaranteed the independence of the judiciary and stated in clause 2 thereof.

“(2)            Neither the President nor Parliament nor any person acting under the authority of the President or Parliament nor any other person whatsoever shall interfere with judges or judicial officers or other persons exercising judicial power, in the exercise of their judicial functions, and all organs or agencies of the state shall accord to the courts such assistance as the courts may reasonably require to protect the independence, dignity and effectiveness of the courts, subject to this Constitution.” (Emphasis mine.)

The high premium placed on the integrity, dignity and independence of the judiciary by our Constitution is due to its importance in society. The judiciary is an indispensable institution in any democratic society such as ours, and is expected to administer impartial justice in disputes between individual citizens or institutions and disputes between citizens and the state; and provide reliefs and remedies. It is also to declare the rights of citizens and to provide reliefs and remedies for the protection of human rights. Therefore for the fair and proper administration of justice it is of the utmost importance that the sanctity and integrity of the courts and its judges are preserved to enable them to perform their constitutional and judicial functions peacefully, fairly, impartially and independently free from any undue interference from any quarter. This is the reason why the courts are given power to commit for contempt, that is to punish any act which tends to interfere with the proper administration of justice, or which “scandalises” the courts, by eroding public confidence in them or by weakening and impairing their authority. The power to commit summarily for contempt is indeed an effective but very powerful tool, which must be wielded only in very clear cases. It must be noted however that it  is not to be used from a tenderness of feeling or to vindicate any particular judge, it is used to protect the whole administration of justice and to keep the “blaze of glory” round the courts for obvious reasons. The public must have confidence in the law and the courts, and any attempt by any one calculated to erode such confidence must be viewed very seriously and must be punished swiftly to restore the integrity of the courts which administer the law.

Contempt has been generally defined in Oswald on Contempt, 3rd edition page 6 as follows:

“To speak generally contempt of court may be said to be constituted by conduct that tends to bring the authority and administration of the law into disrepute or disregard and or to interfere with or prejudice parties, litigants or their witnesses.”

This is only a general definition. There are two kinds of contempt; criminal contempt which consists in acts tending to obstruct or interfere with the due administration of justice; and civil contempt, which consists in disobedience to the judgments, orders or other processes of the Superior Courts of record. Criminal contempt takes various forms, and it may be committed before the actual hearing of a case, or while it is pending in court or when the hearing is concluded. One type of contempt is that which Lord Hardwick described as “scandalising the court.” This type of contempt is committed usually when proceedings have been terminated and a judge is subjected to scurrilous abuse in his capacity as a judge; this is the type of contempt under consideration in this case. Although criminal contempt takes various forms they all share a common characteristic, in that they all involve an interference with the due administration of justice. But the policy of the law is that the courts must not be interfered with, and those who strike at it, strike at the very foundation of our democratic society hence the power given to judges to commit summarily for contempt. “Scandalising the court” consists of any act done or writing published calculated to bring a court or judge into contempt, it has the tendency of impairing public confidence in them. The celebrated case of R v Gray [1900] 2 QB 36 deals with the contempt of “scandalising the court.” One Wells was put before Darling J to be tried for publishing and selling an obscene libel contained in a book. Before the trial started the judge made some observations in court, cautioning the press from giving full or detailed account of the trial, since the matters were objectionable, obscene and indecent and said that any newspaper which did so might easily be prosecuted as anybody else. After Well’s conviction and sentence, while Darling J was still a judge at the Assize, Gray wrote and published in the Birmingham Daily Argus, a newspaper of which he was editor, an article headed “A Defender of Decency.” The article contained scurrilous abuse of Darling J in his character as a judge. Gray was found to be in contempt. In that case Lord Russel of Killowen CJ stated at p 40:

“Any act done or writing calculated to bring a court or judge of the court into contempt or to lower his authority is contempt. Furthermore any act done or writing published calculated to obstruct or interfere with the due course of justice or the lawful process of the court is a contempt of court. The former class belong to the category which Lord Harwick LC characterised as “scandalising a court or a judge.” That description of that class of contempt is to be taken subject to one and an important qualification. Judges and courts are alike open to criticism, and if reasonable argument or expostulation is offered against any judicial act as contrary to law or the public good, no court could or would treat that as contempt of court. The law ought not to be astute in such cases as to criticise adversely what under such circumstances and with such object is published, but it is to be remembered that in this matter the liberty of the press is no greater and no less than the liberty of every subject of the Queen.”

So criticism of a judgment is permitted but as Lord Russell said “scurrilous abuse” is “not reasonable argument or expostulation” or criticism, and would amount to contempt.

Wilmot J in his undelivered judgment published posthumously by his son, in respect of the case of King v Almon (1765) Wilm 243 aptly describes the nature of the contempt of “scandalising the court.” Lord Mansfield had made an amendment to an information against one John Wilkes. One Mr Almon published a pamphlet in which he said Lord Mansfield had made the amendment “officiously, arbitrarily and illegally.” The Attorney-General moved against him for a contempt of court. In Mr Justice Wilmot’s judgment which was never delivered because Almon apologised and the proceedings were dropped, he stated:

“But when the nature of the offence of libelling Judges for what they do in their judicial capacities, either in Court or out of Court, comes to be considered, it does, in my opinion, become more proper for an attachment than any other case whatsoever.

By our constitution, the King is the fountain of species of justice which is administered in this Kingdom 12 Co 25. The King is “de jure” to distribute justice to all his subjects; and, because he cannot do it himself to all persons, he delegates his power to his Judges who have the custody and guard of the King’s oath and sit in the Seat of the King ‘concerning his justice.’

The arraignment of the justice of the Judges, is arraigning the King’s justice; it is an impeachment of his wisdom and goodness in the choice of his Judges and excites in the people a general dissatisfaction with all judicial determinations, and indisposes their minds to obey them; and whenever men’s allegiance to the laws is so fundamentally shaken, it is the most fatal and most dangerous obstruction of justice, and in my opinion, calls out for a more rapid and immediate redress than any other obstruction whatsoever; not for the sake of the Judges, as private individuals, but because they are channels by which the King’s justice is conveyed to the people. To be impartial and to be universally thought so, are both absolutely necessary for giving justice that free, open, and uninterrupted current, which it has, for many ages, found all over this kingdom, and which so eminently distinguishes and exalts it above all nations upon the earth.”

The principle of law is that any person including the press is within this right of free speech to criticise however trenchant the criticism however rumbustious, or vigorous, provided that, members of the public abstain from imputing improper motives to those taking part in the administration of justice; and are genuinely exercising their right of criticism, and not acting in malice or attempting to impair the administration of justice.

This principle has been applied in a number of cases. It was set out concisely in Ambard v Attorney-General for Trinidad and Tobago [1936] AC 322 in which Lord Atkin in delivering the judgment of the court stated at page 335 as follows:

“The path of criticism is a public way, the wrong headed are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice …Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken comments of ordinary men.”

The same view was expressed by Lord Denning in R v Metropolitan Police Commissioner, ex parte Blackburn (No 2) [1968] 2 QB 150. He also said:

“It is the right of every man in Parliament or out of it, in the Press or over the broadcast to make fair comment, even outspoken comment on matters of public interest. Those who comment can deal faithfully with all that is done in a court of Justice, they can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that those who criticise us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication. Exposed as we are to the winds of criticism nothing which is said by this person or that, nothing which is written by this pen or that, will deter us from doing what we believe is right; nor, I would add, from saying what the occasion requires provided that it is pertinent to the matter in hand. Silence is not an option when things are ill done.”

It appears that a vigorous and, in some respects inaccurate criticism of itself does not amount to a contempt. See the same case of Ex parte Blackburn (supra) p 155 where Salmon LJ said:

 “…no criticism of a judgment, however vigorous, can amount to contempt, providing it keeps within the limits of reasonable courtesy and good faith. The criticism here complained of, however rumbustious, however wide off the mark, whether pressed in good taste or in bad taste, seems to be well within those limits.”

However the courts have in many cases unfailingly upheld and protected the inalienable right of everyone including the press to comment fairly on any matter of public importance since this right of freedom of speech is one of the pillars of individual liberty. In the Blackburn case, Quintin Hogg QC was not committed because he was said to have paid proper respect to the standards of fairness accuracy, and good taste when he was composing his article which was published in the Punch newspaper entitled: “Political Parley” in which he criticised the Court of Appeal and its dicta, even though he wrongly attributed to that court decisions of the Divisional Court.

What then is scurrilous abuse of a judge in his capacity as a judge, which according to the law would amount to the contempt of “scandalising the court,” as defined in R v Gray [1900] 2 QB 36, already discussed above? A number of English cases have specified the kind of attacks on a judge which was said to be “scurrilous abuse” and which amounts to the contempt of “scandalising the court” as in the case before us. The articles called Justices Abban a liar a criminal, a biased and partial judge and one who uses political and judicial chicanery to judge cases. I will refer to some cases which show that attributing such words to a judge in his capacity as such, does amount to contempt of court, and that those words are “scurrilous” abuse which scandalises the court. In one case it was held that calling a judge a liar or a criminal is contempt.

In the case of R v Freeman, The Times November 18, 1925 one Freeman had been the plaintiff in an action tried before Mr Justice Roche. In those proceedings he was unsuccessful as he hoped to be. He did not appeal. The course which he took was different. He began to assail the learned judge with letters and postcards containing the grossest calumny and vituperation. In one letter he had said of the judge “You are a liar a coward, a perjurer ¼You aided Lord Sheffield in felony.” Freeman was found to be in contempt and sentenced to 8 months imprisonment. (Italics mine.)

It is also contempt to attribute criminality to a judge. In R v Vidal The Times of October 14, 1922. It was reported: “Vidal was brought before court for contempt which arose from a publication of certain posters in Carey Street near the law courts and in Parliament Square near the Houses of Parliament. The matter apparently arose out of a case Vidal v Vidal and Wilson, in the Divorce Court before the learned President. The defendant was related to one of the parties to that case. The defendant was dissatisfied with the result, so he caused posters to be exhibited in which among other things he charged the learned President with being a traitor to his duty, and with defrauding the course of justice for the benefit of one of the parties to the case tried before him. Respondent alleges conspiracy to suppress evidence and says that those who agreed to this conspiracy, perjury and fraud found active assistance in the person of the learned President who presided at the trial. It was held that it is needless to say that those who administer justice are not immune from criticism even if it be quite wrong. It is one thing to criticise: it is quite another to do what Lord Hardwicke called “scandalising the court or judge“ as stated in R v Gray. Lord Avory CJ went on in that case to state:

“Reasonable argument and expostulation that is permissible probably even more than that would pass without serious notice, but to say of a learned judge that he has given active and complete support to a conspiracy to suppress evidence that he has defrauded the course of justice; is scurrilous abuse of the worst description. That is contempt.”

Vidal was committed to prison for 4 months. It is also necessarily contemptuous to suggest judicial bias against a judge; see the Privy Council case of Badry v DPP of Mauritius [1982] 3 All ER 973, as it is to impute lack of impartiality to a judge. In the case of The Statesman (1928) 44 TLR 301, the editor of the New Statesman was found guilty of contempt in publishing a statement that “an individual owning to such views as those of Dr Stopes (favouring birth-control) cannot apparently hope for a fair hearing in a court presided over by Mr Justice Avory - and there are many Avorys.” The Divisional Court held that the article did scandalise the court. The court rejected the argument that this was permissible criticism, being intended only to convey that the subject of birth-control was so controversial that no one who held strong views on one side or the other could prevent his judgment from being unconsciously influenced by his personal views. Lord Heward CJ said:

“[The article] imputed unfairness and lack of impartiality to a judge in the discharge of his judicial duties. The gravamen of the offence was that by lowering his authority it interfered with the performance of his judicial duties.”

The law is that after a case is concluded it is given over to criticism and no wrong is committed by any member of the public including the press, who exercises freely the ordinary liberty of criticising temperately and fairly, in good faith, in private or in public any episode in the administration of justice. Provided that members of the public refrain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising their right of criticism without malice, they are immune from attachment for contempt.

Upon the facts of this case the Attorney-General has asked this court to commit the respondents for contempt of court. When the respondents were called upon to show cause learned senior and respected counsel Mr da Rocha, counsel for 1st respondent relied on a number of defences, including justification, among others. He invited the court to examine exhibit MB1 and exhibit CTC and determine in his favour, that exhibit MB1 is the “genuine” judgment of Mr Justice Abban. He claimed that according to 1st respondent, what he heard the judge say in court is not the same as was contained in page 28 of the “certified copy” of the judgment exhibit CTC which the registrar of the Supreme Court sent to him even though that was a “certified copy and exhibit MB1 was not. It was submitted that as between 1st respondent and Mr Justice Abban 1st respondent was telling the truth, he was entitled to call the judge a liar. But is he? Truth, what has truth got to do with the offence of contempt?

Truth or otherwise of the matter published is no defence in law in the case of contempt of court, and this is why I would refrain from making any finding on the issue about the genuineness or otherwise of exhibit MB1. Such a finding is completely irrelevant to the determination of this case. In fact as far as this case is concerned it is my view that it is an exercise in futility.

Once the matter published scandalises the court, truth is no defence nor is justification. The reason is that the contempt of scandalising the court is committed against the administration of justice itself not against an individual judge, qua judge. The mischief in publishing “scurrilous abuse” about a judge is its tendency to bring the administration of the law into disrepute, to lower the authority of the court and impair public confidence in the judiciary. On the issue of truth not being a defence, see Re Martindale [1891-94] All ER Rep 1248 where it was held that it is no defence to a motion for contempt of court in publishing an account of proceedings held in camera which amounts to contempt, that the matter published was true. North J stated therein:

“It is said that as the statement that the marriage had taken place was quite true, it could not be contempt to state that; but, if the question of contempt depended upon the truth or untruth of the matter published, it would result in this - that there would be no contempt in an accurate disclosure of what passed in camera, although there would be, if the account was a fictitious one, which is absurd.”

It seems to me that if the truth were a defence it would give a platform for the repetition of the offending original scandal and could also be used maliciously to rake up some damaging episode in a judge’s past life which conduct would tend to interfere with the administration of justice, the very mischief which contempt seeks to prevent. The jurisdiction does not exist for the protection of an individual judge but for the protection of the court, and therefore if the words complained of amount to “scurrilous abuse” of a judge in his capacity as a judge, and the requisite mens rea is present, then the offence of contempt of court would have been committed regardless of the truth or the accuracy of the matter published.

Another defence raised is that the matter published was a fair criticism on a matter of public interest. It is true that once a case has been concluded it is given over to criticism, and provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice they are genuinely and perfectly entitled to criticise any judgment. The cases of The New Statesman ex parte DPP The Times Law Reports Friday March 2, 1928, Ambard v Attorney-General for Trinidad and Tobago [1936] AC 323 and ex parte Blackburn supra amply illustrate this principle of law.

All these cases applied the above stated principle that criticism of the court and of judicial decisions however rumbustious, whether or not in good taste, and despite inaccurate statements of fact, would not amount to contempt of court and is within the limits of the inalienable right of every individual’s freedom of speech, subject of course, to the proviso I have already referred to earlier. The courts have always upheld this right, in a number of cases which I have not found it necessary to cite. However it should not be forgotten that there are limits to this freedom, and therefore even though one is in fact criticising, if imputation of improper motives are attributed to those taking part in the administration of justice calculated to interfere with the administration of justice, a publisher of such matter would not be immune from contempt. Some have argued that this limitation on freedom of speech would tend to stifle the press - well this is the law. I agree that the freedom to criticise and the freedom of speech are inherent in any democratic society and even though criticism should not be stifled, I also believe that the integrity and independence of the judiciary should be upheld by all, especially the press which no doubt expects the courts to uphold and protect the right of freedom of speech. Free speech carries with it duties and responsibilities and is subject to conditions and restrictions prescribed by law including committal for contempt of court when this offence is committed. Committal for contempt is a necessary power given to the courts themselves, and which they are in duty bound to exercise to preserve and maintain the dignity and authority of the courts.

This court has been referred to a number of cases on the issue of permissible criticism, from other jurisdictions namely America, England, Canada, Australia etc and I think both counsel in this case deserve to be commended for their diligence in the handling of this case. But in those jurisdictions the law on the point has been modified by statute and is different from the common law of England (see eg, the Contempt of Court Act 1981. These statutes are not applicable to Ghana where the common law is still applied.

Applying the principles of the common law to the facts of this case I do not think the defence of fair criticism would enure to the benefit of respondents. The importance of a free press in any democratic society cannot be over-emphasised and this is because no society can thrive and progress if there is no freedom of expression, which is essential to the achievement and maintenance of a democratic society. That is why the press may criticise in matters of public interest but it must be remembered that this right is not absolute, but subject to the limitation that it does not violate the integrity of the court or present a threat to judicial authority. Criticism however trenchant is permitted but criticism ends where “scurrilous abuse” begins, and there is a great difference between criticism of a judgment and imputation of unfairness and of impartiality to a judge as a judge. This is contempt, not the permissible criticism recognised by the law. Nor would a mixture of “scurrilous abuse” and criticism make it fair and permissible criticism. The chaff would contaminate the wheat thereby converting fair criticism into scurrilous abuse amounting to contempt of court.

Another submission made is that there was no malice on the part of the publishers of the “scurrilous abuse” against Justice Abban. It is to be noted that mens rea is not capable of direct proof but can be deduced from the nature and meaning of the actual words used. Is it malicious to impute derogatory conduct to a judge in his capacity as such by the use of such words as liar, criminal, one practising judicial and political chicanery and a partial judge? The imputation of such conduct against any ordinary person, is bad enough, but against a judge in his capacity as a judge, it is the grossest abuse and amounts to “scurrilous abuse.” It is my view that the submission of counsel that the words were not used intentionally or maliciously is untenable. The words are pregnant with malice and this amounts to “scandalising the court” which is a contempt. In such a case judges are in duty bound to punish the contemnors so as to maintain the “blaze of glory round the courts’, and prevent any interference with the administration of justice. I am of the view that the publications are scandalous and that they were intentionally published.

Learned counsel for the 2nd and 3rd respondents associated himself with most of the defences relied on by Mr Da Rocha namely justification, fair criticism, lack of mens rea and the submission that the publication was not scandalous of the Supreme Court. I have already dealt with these issues. He submitted also with characteristic force that the attack on Mr Justice Abban is an attack on one judge of the panel of nine and cannot therefore amount to contempt of the Supreme Court. The answer to these submissions is simple. Court is defined as “judge or judges who sit in a court;” See Osborn’s Concise Law Dictionary 7th edition p 98. The Supreme Court sits in panels of either 5 or 7 or 9 judges in the hearing of any case, and in rule 70 of the Supreme Court Rules 1970 (CI 13) “Supreme Court” is defined thus “Supreme Court” includes a single justice or three (or more) justices thereof.” A final judgment of the Supreme Court, whether unanimous or by majority is a judgment of that Court made up of the composite number of judges on the panel. It is therefore contempt of the Supreme Court itself when scurrilous abuse is heaped on even one member of the panel or on the whole panel or court. The view that since only one member of the panel was attacked, no contempt had been committed, is therefore erroneous.

Another issue raised is that a judgment of the court is actually the oral pronouncement made by the judge in open court. This is a curious submission - a judgment is the decision or sentence of a court in a legal proceeding and includes the final order and reasoning of the judge or judges, which led to the decision. These are then reduced into writing or the court records. Even oral judgment must of necessity be reduced into writing in the court record book, but generally judgments are reduced into writing before they are read in open court. The procedure is that after a judgment is read in court it is sent to the registrar of the court who compiles them into one document and certifies it as true copy of the judgment read in court. The “certified copy” of the judgment thereafter becomes a record of the court and is kept in the custody of the Registrar until requested for by members of the public, when copies of same are given out from the court upon payment of a specified fee.

The Courts Act 1993 (Act 459) deals with access to records of the court. It states at section 70(1):

“(1) No person is entitled to inspect or to have a copy of the record of evidence given in a case before a court or to a copy of the court’s notes, except as may be expressly provided by the Constitution, a rule of court or any other enactment.

(2) If a person affected by a judgment or a court order desires to have a copy of the judgment, order, disposition or other part of the record, he shall on application for a copy be furnished with it if he pays its costs except where the court for some special reason thinks fit to furnish it free of charge.”

Under this section no person is entitled to obtain a copy of a judgment without complying with section 70, a provision which was knowingly contravened by the 1st respondent in this case. Even when one properly applies for a judgment it is the “certified copy” of the judgment which is sent out. Under section 162 of the Evidence Decree 1975 (NRCD 323) a certified copy of any document is presumed to be genuine hence the necessity and desirability of properly obtaining a certified copy. On this state of the law, anybody who procures through the back door and publishes an uncertified copy of a judgment does so at his own risk, and can be proceeded against for contempt since this conduct, would amount to an interference with the rules and processes of the court. See Dobson v Hastings [1992] 2 All ER 94. The submission that only the oral judgment read in court is the proper judgment ought to be rejected outright.

Another submission by counsel for 2nd and 3rd respondents is that a judge cannot correct any errors in his judgment after it had been read. There are two kinds of errors - one kind is, errors which are merely typographical or typists errors or citation errors, which can be corrected by the judge or later by the Council for Law Reporting when processing the “certified copy” of the judgment for the law reports. See the April 1974 issue of Review of Ghana Law Vol VI No 1 p 19 at 31 by the late Janet Daniels then Editor of Law Reports under the title: “Editorial Fashions.” The other kind comprises errors which are substantial errors.

In the article entitled: “Revision by Judge of Oral Judgment” (1970) 86 LQR pp 229-300, the note therein suggested that if the Judgment of a court delivered is wrong by reason of any substantial error or omission, its correction should be by way of appeal or by way of judicial review of the judgment before it is reported. This point was taken in the Practice Direction in R v Kuczynski [1973] 1 WLR 1230 at 1232. See also the note in Ghani v Jones [1969] 3 All ER 1700. In that case Lord Denning made a substantial correction, which changed the meaning of his judgment as a whole. The note suggested that if a judgment of a court as delivered is wrong by reason of any substantial error or omission, its correction should be by way of judicial review of the judgment before it is reported. The principle then is, that if the error is a typographical error or citation error the judge can correct it or the editor of the law reports can do so when processing it for publication in the law reports. It is my view that even if there was some error in page 28 of exhibit CTC it was merely a citation error which could be corrected as stated above. Mistakes or errors do occur sometimes in judgments hence the existence of the right of appeal. There is no doctrine of judicial infallibility. Judges are human beings capable of erring and making mistakes, and when they do they can be criticised, but then it is risky for anyone when criticising errors made by judges, to intentionally impute improper motives to them since such act could amount to contempt.

1st respondent is a lawyer of many years standing and it is surprising that he did not adopt the legal procedure for correcting any alleged errors in Mr Justice Abban’s judgment, but rather initiated and prosecuted a smear campaign of “scurrilous abuse” against the said judge in respect of the judgment he had delivered in the 31st December case.

In any case if his interest was only, as he claimed, to seek a correction of any alleged error in the said judgment, it is rather surprising that he did not allow this case to rest, after he was informed by the registrar of the Supreme Court that the certified copy contained his desired correction. Of course, 1st respondent was entitled to criticise the judge for whatever he thought, he had done wrong, if as he said he felt it was a matter of public interest. But that did not entitle him to heap on the judge the scurrilous abuse referred to above, which is scandalous of the Supreme Court. He is not only an experienced lawyer but also a journalist, and a columnist of The Frees Press. He caused his letter to Justice Abban to be published in The Free Press in the 13 to 19 May 1994 issue of the said newspaper, under the heading: “Justice Abban is a liar.” That article and the comments flowing from the letter were clearly instigated by him and he cannot now extricate himself from the consequence of the publication of such scurrilous abuse, by claiming as he did that it was not his act but the editor who put in the title to that article. In fact in 2nd respondent’s affidavit he said he was relying on 1st respondent and he had no reason to doubt what 1st respondent had claimed he heard in court. 1st respondent encouraged the publication and is a participant in contempt. Indeed it is under the column: “Sentiments of Mensa-Bonsu” in the 20 to 26 May 1994 issue of The Free Press newspaper that the most scandalous attacks were heaped on the judge, and he was accused of using political and judicial chicanery to come to his decision to please the NDC Government. These were the actual word used: “There is no doubt that Mr Justice Abban’s judgment is tainted with politics. The impression created in his judgment is that of a judge bending over backwards to please the government.” These words are not only scandalous, - malice actually permeates them. I find that the publications were made maliciously and I have no reasonable doubt in this matter.

It has been held that imputation of lack of impartiality on a judge is necessarily contempt. Just as calling a judge a liar and a criminal, is contempt. See R v Freeman The Times November 18, 1925, Rex v Vidal The Times October 14, 1922 and Re New Statesman The Times Law Reports Friday March 2, 1928.

The 2nd respondent is the editor of The Free Press. He knowingly published the 1st respondent’s letter and the other comments and articles containing “scurrilous abuse” of a judge in his capacity as a judge. He is responsible also for the contumacious editorials referred to earlier in this judgment. The 3rd respondent of course happened to be the printer and publisher of The Free Press newspaper, which published the offending articles.

The learned counsel for the 2nd and 3rd respondents lastly made a novel and surprising proposition of law. He submitted that since the offence of contempt of court is in the nature of a crime the respondents cannot be found to be in contempt unless the decision of this court is unanimous. This submission is wrong, as it ignores the law on the point, namely that it is only in murder cases where the sentence is death and the offences of treason and high treason, that the decision or verdict of the court or jury requires unanimity. In all other cases including contempt, a majority decision is proper and would support a conviction for contempt of court. See Gallagher v Durack (1985) LR Cm (Crim) 706 in which case the decision to attach for contempt of court was by majority. I have carefully considered the case against respondents in the light of the various publications referred to above in The Free Press newspaper and the law. In my view the meaning of the words used in the attack on the integrity and lack of impartiality on the part of Justice Abban is a question of fact for this court, and it is my view that they admit of no ambiguity. Their meaning is clear; I find them to be “scurrilous abuse.” Applying all the canons stated above I am left with no doubt that the three respondents published “scurrilous abuse” against Mr Justice Abban in his capacity as a judge knowingly; that the publications scandalise the court and were calculated to interfere with the proper administration of justice namely lowering the authority of the courts and impairing public confidence in them.

I can do no more than end with a quotation from one of our most respected able and revered judges in the person of the late Chief Justice Mr Justice Akufo-Addo in Republic v Liberty Press Ltd [1968] GLR 123 at 137 wherein he ably set out the main principles of the law of contempt. He stated at p 137 as follows:

“It must be appreciated by the press and all other freedom-lovers that without a judiciary strong, courageous and respected that can effectively protect the freedom which we all love so much, all talk about freedom, whether it be in the lecture room or at Bukom Square, remains no more than a mere metaphysical speculation, and the courts are entitled to look upon men such as are before me today to help them in the acquisition of the requisite strength, courage and respect. One of the surest ways of doing so is to refrain from commenting on proceedings which are pending in the courts. For these constitute some of the most fruitful fields of contempt. There is however no law which prohibits absolutely any such comments, but there is law which punishes if the limits set by law are transgressed, as indeed they have been transgressed in this case.”

For the reasons I have endeavoured to explain above I am left with no alternative but to find all the respondents guilty of contempt of court.

HAYFRON-BENJAMIN JSC. This is a committal application with an unusual background. The novelty of the application has itself generated so much research on the part of counsel into case law that this court is perhaps in danger of being driven away from the fundamentals which in the present constitutional order ought to guide our thinking the better to enable us as Ghanaians arrive at conclusions which will serve our national interest. In so doing I do not think that too much reliance should be placed on some of the cases which have been cited to us. In my respectful opinion a large body of the cases cited to us have no relevance to the matters in hand, dealing as they do with cases of contempt of court in respect of

 pending proceedings. Those cases which deal with the topic in hand will of course be considered. Apaloo CJ in the case of Kwakye v Attorney-General [1981] GLR 944 at 958 clearly stated the guidelines when he said:

“[In the exercise of the interpretative jurisdiction of this court] it is obvious that we should go beyond statutory interpretation since we are concerned with the most fundamental issues of our jurisdiction. We must have regard to the terms of our particular Constitution whose specific reference points are largely unique to our national history. In this area, more than others, judicial pronouncements in other jurisdictions on the particular facts of their experience are not likely to be of much assistance; the range of judicial wisdom embodied in them will, of course, influence our judicial reflections. I think originality is required of us in the exercise of our original jurisdiction if we are to attend to the letter and spirit of the Constitution as the basic law of our land. That originality must, of course, be judicial and must not do damage to the plain and obvious meaning of the words used nor is it the province of this court to be astute to find some reason or other for depriving the constitutional provision of an effect clearly intended.”

Yet again in Director of Public Prosecutions v Belize Times Press  (1989) LRC (Const) 579 at page 594 Cotran, CJ of Belize wrote:

“I think that the three judgments from Belize, just quoted, emphasise, if emphasis is needed, that what amounts to scandalising the court in one country, may not necessarily amount to scandalising the court in another country: the size of population, the manpower of the Supreme Court Bench, the standard of economic and social development the country has achieved, the intention of the framers of the Constitution, if there is one, the attitude of the ordinary man to politics, to what he reads in the press, and what he sees on television, and the advent of a new generation on to the scene with different mores, are factors that may affect whether the court’s decision goes one way or the other. Contempt by scandalising the court has been the subject of extensive debate and legal literature but the diversity of views of the judges sitting in judgment on whether an uttering or a publication is or is not a scandalous contempt are extremely wide.”

Our jurisdiction in matters of contempt of court is clearly stated in article 126(2) of our Constitution 1992 and it reads:

“The Superior Courts shall be Superior Courts of record and shall have power to commit for contempt to themselves and all such powers as were vested in a court of record immediately before the coming into force of this Constitution.”

Then also it must be acknowledged that chapter 12 of the Constitution 1992 guarantees the freedom and independence of the media. Conjoined with the right of all persons to the “freedom of speech and expression, which shall include freedom of the press and other media” contained in article 21(1)(a) of the constitution, it can be said that the freedoms of speech and expression which can be enjoyed under this constitution are only subject to the provisions of article 164 of the constitution which states:

“The provisions of articles 162 and 163 of this Constitution are subject to laws that are reasonably required in the interest of national security, public order, public morality and for the purpose of protecting the reputations, rights and freedoms of other persons.”

Thus the freedoms of expression and speech and of the media cannot be said to be absolute or wherein the freedoms may degenerate into licence. It cannot be said that the framers of the constitution were not mindful of the need for the creation of an orderly, decent and civilized society in this country, conformable with our traditional morality and respect for authority, seniority good behaviour and decent speech and actions. It is with all these at the back of my mind that I approach my opinion in this application. The pith of this application is the scandalising of this court.

In this application the Attorney-General complains that the respondents have scandalised this court by publishing matters of scurrilous abuse upon this court and in particular upon a member of this court in the person of Mr Justice I K Abban. However, before I proceed further I must mention that Mr Justice I K Abban is not a party to this committal application. Nevertheless it is essential that his name is mentioned in these proceedings for otherwise it will be difficult to understand and appreciate the history of this application. It must also be said in his favour that Mr Justice Abban has sworn to no affidavits in respect of the matters, which constitute the offence of criminal contempt by scandalising this court. Therefore in my respectful opinion what the Attorney-General has presented to this court is a criminal information in the nature of a proceeding nisi and the respondents as contemnors are called upon to show cause why the rule nisi should not be made absolute by their committal to prison.

Accompanying the motion on notice of the Attorney-General as applicant was a statement of the grounds upon which the reliefs were sought. They were stated thus:

            “GROUNDS UPON WHICH APPLICANT SEEKS RELIEFS

(i) That on 9 May 1994 the 1st respondent wrote a letter to Mr Justice Abban entitled Writ No 18/93: New Patriotic Party v the Attorney-General in which he accused Mr Justice Abban a Supreme Court judge of misrepresenting the editorial opinion of the Daily Graphic as a speech made by Dr Busia in his reasons for judgment delivered by the Supreme Court on 8th March 1994.

(ii) That the Chief Justice to whom the letter of 9th May 1994 was copied caused the registrar of the Supreme Court by letter reference No W18/93/56 of 12 May 1994 to send to the 1st respondent a certified true copy of the relevant page of the reasons given by Justice Abban and pointed out that Justice Abban quoted the “Graphic View”.

(iii) That without waiting for a response to his letter of 9th May 1994 the 1st, 2nd and 3rd respondents caused to be published in the 13 May to 19th May issue of The Free Press a report that the judge is a liar, a criminal and a political chicane.

(iv) That in The Free Press newspaper publications of 20 May to 26 May 1994; and 27 May to 2 June 1994 the 1st, 2nd and 3rd respondents caused to be printed and published further scurrilous abusive materials against Justice Abban and the administration of justice.

(v) That by calling Justice Abban a liar a criminal and a political and judicial chicane the conduct of the 1st, 2nd and 3rd respondents in the said publications constitutes a gross contempt of court in so far as they were calculated to erode public confidence in the administration of the law and impair the authority of the judiciary as an independent organ of state.

(vi) That in the November 4 to November 10, 1994 issue of The Free Press the 2nd and 3rd respondents caused to be published an editorial in which the paper alleged among other things that “and it is this clearly bad case which Mr Justice Abban expects the court to twist in his favour. What Mr Justice Abban may not realise in his desperation in expecting his colleagues on the Bench to behave like lunatics, however, is that he is, in fact, putting the integrity, credibility and respectability of the Bench on the line. And whether the men and women on the Bench would allow themselves to be reduced to such depth and also abused to save the face of a fellow prodigal benchman, remains to be seen. Ghanaians are watching developments with eagle’s eyes.

(vii) That the 2nd and 3rd respondents by making insinuations at the independence and impartiality of members of the Bench and or the judiciary in the said editorial were in contempt of court in so far as they were calculated to shake public confidence in the authority of the law, the courts and are a baseless attack on the integrity or impartiality of the courts and judges.

(viii) That the publications and conduct of the 1st, 2nd and 3rd respondents have scandalised both Justice Abban and the courts of Ghana as they are particularly outrageous and constituted contempt of court.”

Also in support of the motion by the applicant was an affidavit sworn to by Mrs Adusa-Amankwa, a Chief State Attorney. In order to demonstrate the veracity or otherwise of the 1st respondent’s affidavit in opposition sworn to on 18 November 1994 and filed on 21 November 1994 I have picked out the sections of the learned Chief State Attorney’s affidavit as the averments have been admitted, not admitted or denied and compare them with the publications in the relevant editions of The Free Press  edited by the 2nd respondent and published by the 3rd respondent.

The following paragraphs in the applicant’s affidavit were not admitted by the 1st respondent:

“2 I have the authority of the applicant to depose to these facts which are within my personal knowledge.

7 The court took over eight hours to read its reasons for judgment.

8 On 10 May 1994 the Attorney-General’s Office applied for a certified copy of the reasons for judgment but was informed by the Registrar of the Supreme Court that the judgment had not yet been certified and could not therefore be released to the Attorney-General’s Office.

9    On 13 May 1994 I read in the 13 to 19 May 1994 issue of The Free Press under the caption: “Justice Abban Is A Liar” a letter from one K Mensa-Bonsu to Mr Justice Abban in which Justice Abban was accused of misrepresenting the editorial opinion of the Daily Graphic as a speech by Dr Busia and which in the view of the writer was an inexcusable error. He attached to his letter extracts from the Daily Graphic to buttress his point.

10 That in a commentary which preceded the letter of the 1st respondent, the 2nd and 3rd respondents caused to be published the following:

‘By the sane and sound conviction of one of Ghana’s Supreme Court Justices, in the person of Mr Justice I K Abban in disagreeing with the majority decision of the nine members of the Supreme Court in upholding the writ filed by the New Patriotic Party (NPP) that the government of the National Democratic Congress (NDC) has no legal basis and is highly unconstitutional to celebrate the last year’s anniversary of the 31st December revolution, the learned Supreme Court judge committed one of the most grievous and unpardonable legal crimes against the media, the judiciary and the people of Ghana.’

11 The commentary preceding the said letter also added that:

‘In his display of political chicanery and bamboozlement of Ghanaians, the learned Supreme Court judge lifted the whole editorial comment of the Daily Graphic newspaper of Tuesday, 24 February 1970, No 6033 and portrayed it as a speech made by Dr K A Busia, Ghana’s Prime Minister in the Second Republic which to all intents and purpose is most outrageous in the field of legal issues.’

13 On 9 May 1994 when the 1st respondent wrote his letter to Justice Abban and copied it to the Chief Justice, the reasons for the judgment delivered by the Supreme Court were not certified and available to the parties to the suit or the public.

14 The 1st respondent nonetheless purported to rely on what he called Justice Abban’s signed reasons for judgment which is not an authentic copy of the reasons for judgment read in the Supreme Court on 8 March 1994.

18 The 2nd and 3rd respondents, undaunted by the fact that the alleged signed reasons for judgment was not an authentic signed judgment of Justice Abban, caused to be printed and published in the May 27 to June 2, 1994 issue of The Free Press newspaper two front page news items entitled “A Challenge To Media Commission” and “Media Commission Called In As Justice Abban Scandal Takes Dramatic Turn - He Is Accused Of Doctoring;” and another article at page 4 of the said publication entitled: “The Abban Scandal - Our Proof” which contained scurrilous abuses of the judge intended to bring him and the judicial system into disrepute in the eyes of the public. A photocopy of the said publications is annexed herewith and marked exhibit C.

22 While the police were investigating a case of criminal libel or contempt of court against the 1st, 2nd and 3rd respondents, the 2nd and 3rd respondents caused to be published in the November 4 to November 10, 1994 issue of The Free Press and editorial entitled: “Abban Puts Integrity Of The Bench On The Line,” which constitutes contempt of court by stating among other things that:

‘And it is this clearly bad case which Mr Justice Abban expects the court to twist in his favour. What Mr Justice Abban may not realise in his desperation in expecting his colleagues on the Bench to behave like lunatics, however, is that he is, in fact, putting the integrity, credibility and respectability of the Bench on the line. And whether the men and women on the Bench would allow themselves to be reduced to such depth and also abused to save the face of a fellow prodigal bench man, remains to be seen. Ghanaians are watching developments with eagle eyes.’

A photocopy of the Free Press of 4 to 10 November 1994 is attached and marked exhibit D.

23 In The Free Press newspaper referred to in paragraph 16 above the 2nd and 3rd respondents caused to be printed and published repetitions of accusations that Justice Abban is a liar and mischievous.

24 The 2nd and 3rd respondents by making insinuations at the independence and impartiality of the members of the Bench, and of the judiciary in the said editorial were in contempt of court in so far as they were calculated to shake public confidence in the authority of the law, the courts and are a baseless attack on the integrity and impartiality of the court and judges.”

The 1st respondent denied the following paragraphs in the affidavit of the applicant:

 “16 By the publication referred to in paragraph 13 above the 1st, 2nd and 3rd respondents intended to portray and did portray to the public that the judge is dishonest, blasphemous, partial and not worthy of the high office of a justice of the Supreme Court.

17 In the publication referred to in paragraph 13 above the 1st, 2nd and 3rd respondents manifested a malicious intention to bring the administration of the law and the judicial system into disrepute by subjecting the alleged reasons for judgment of a justice of the Supreme Court to scurrilous insults, abuse and mockery.

19 In spite of the fact that the Registrar of the Supreme Court had written to the 1st respondent to call his attention to the fact that the alleged signed reasons for the judgment of Justice Abban on which he based his letter of 9 May 1994 was not an authentic copy of the reasons for the judgment read by Justice Abban on 8 March 1994 the 1st, 2nd and 3rd respondents caused to be printed and published in the 3 to 9 June 1994 issue of The Free Press newspaper a reply from the 1st respondent to the registrar of the Supreme Court in which the 1st respondent cast insinuations and aspersions on Justice Abban and the judicial system by alleging that the certified copy of the judgment was not the judgment read by Justice Abban in court thus imputing to Justice Abban and the Supreme Court the dishonest conduct of interfering with the reasons for judgment after it was read.

20 By calling Justice Abban a liar, criminal and a political and judicial chicane the 1st, 2nd and 3rd respondents’ conduct is contumacious of the judge and the judicial system as it was calculated to bring the court and the judge into contempt and lower the authority of the law, the judge and the court as an impartial and independent organ of state.

21 The said publications also constitute a scurrilous abuse of a judge of the Supreme Court and an attack on the personal character of the judge and are contumacious of the judge, courts and judicial system.

25 The said publications and conduct of the 1st, 2nd and 3rd respondents have scandalised both Justice Abban and the courts of Ghana as they are particularly outrageous. This is particularly so when the 1st respondent in his letter of 9 May 1994 admits that the issue raised in his letter was not germane to the reasons for judgment of the judge and the court’.”

The 1st respondent however admitted the following averments in the applicant’s affidavit:

“1  That I am a Chief State Attorney in the office of the Attorney-General and the deponent herein.

2  That on 21 December 1993 the New Patriotic Party issued a writ against the Attorney-General as representing the Government of Ghana in the Supreme Court claiming among other things a declaration that the celebration of 31 December as a public holiday and from public funds is inconsistent with the letter and spirit of the Constitution and therefore null and void.

4 On 29 December 1993 the Supreme Court heard arguments from counsel and delivered judgment granting the New Patriotic Party’s reliefs. The judgment was a split judgment of five against four. The court reserved its reasons for judgment.

5 Justice Abban was one of the dissenting judges on 29 December 1993.

6 On 8 March 1994 the Supreme Court delivered its reasons for judgment by each justice reading his reasons for judgment in open court.

12            The said publication which contains the Daily Graphic editorial and a speech by Dr Busia is attached and marked exhibit A and is intended to form part of the evidence in this case.

15            The 1st, 2nd and 3rd respondents nonetheless caused to be printed and published in the May 20 to 26 1994 issue of The Free Press newspaper an article written by the 1st respondent and entitled: “Judicial Chicanery” accusing Justice Abban among other things of being tainted with politics and the “the impression created in his judgment is that of a judge bending over backwards to please the government.” The said article in The Free Press is attached herewith and marked exhibit B.”

The respondents also made affidavits in answer to the affidavit in support of the application as stated above the relevant paragraphs of which are here also set down:

 “6 Paragraphs 1-8 and of the affidavit of Mustapha Habib Logoh are admitted.

8    In answer to paragraph 20 I say that I sent a copy of my letter to Mr Justice Abban to The Free Press but deny calling the judge a liar and a criminal as alleged. The captions in the said newspaper are not my handiwork.

10 On 8 March 1994 I was in the Supreme Court when Mr Justice Abban delivered his reasons for judgment in the New Patriotic Party v Attorney-General.

11 I heard the judge attribute to Dr K A Busia, former Prime Minster of Ghana, a statement praising the celebration of 24 February 1966 coup d’etat which the judge purported to quote from the Daily Graphic of Tuesday 24 February 1970.

12 I have made special study of the speeches and writings of Dr Busia over the years and it struck me that the passage I heard Mr Justice Abban quote did not sound like Busia and was very much unlike his style.

13 I decided to obtain a copy of Mr Justice Abban’s signed reasons to find out whether what I heard was correct.

14 I therefore approached the Deputy Judicial Secretary to find out whether I could get a copy of Mr Justice Abban’s written reasons for his judgment.

15 He informed me that he had a copy which he had given to Mr Kerchiri Adusa Kwabena, a lawyer, and authorised me to collect it from him.

16 I collected the reasons for judgment and saw that it bore the signature of Mr Justice Abban.

17 The written reasons for judgment confirmed what I had heard Mr Justice Abban say in court, namely, that Dr Busia had made a speech praising the celebration of 24 February 1966 coup d’etat and that he was quoting from that speech. A photo copy of the said reasons for judgment is exhibited hereto marked “MB1.’

18 After taking a photocopy of the signed reasons, I returned it to the Deputy Judicial secretary who took it from me without any comment.

19 To give Mr Justice Abban the benefit of the doubt I decided to procure a copy of the Daily Graphic of that date to ascertain whether indeed Dr Busia had made such a speech.     

20 Through my research in the Padmore Library I procured a photo copy of the Daily Graphic of the relevant date and discovered that what Mr Justice Abban had quoted as part of Dr Busia’s speech was, in fact word for word, the Daily Graphic editorial of that date boldly captioned ‘Graphic View’.”

22 I honestly believed and still believe that the copy of the reasons for judgment from the Deputy Judicial Secretary was genuine. It bore the signature of the learned judge and the relevant page of the judgment, ie page 28, had a correction in his handwriting. I have no reason therefore to doubt its authenticity.

23 On 9 May 1994 I wrote a letter to Mr Justice Abban, with a copy to the Chief Justice, drawing his attention to the fact that he had erroneously attributed the Daily Graphic editorial to Dr Busia and also informed him that I was bringing the error to the attention of the public. A copy of my said letter is exhibited hereto and marked MB3.

24 I sent a copy of the said letter to The Free Press which published it with its own comments not written by me.

25 Since the matter had evoked much public interest I also wrote an article about the erroneous attribution of the Daily Graphic editorial to Dr Busia who was dead and was not in a position to answer back from the grave. A copy of the said article is exhibited hereto marked MB4.

26 On Friday 20 May 1994 I received by post a letter from the registrar of the Supreme Court informing me that I had “probably not got a certified copy of the reasons given by His Lordship Justice Abban” and enclosing “a copy of the relevant page of the judgment (page 28)” for my benefit. This copy of page 28 sent to me by the Registrar did not bear any stamp of certification. A copy of the Registrar’s letter is exhibited hereto marked MB5.

27 The discrepancy between page 28 of exhibit MB1 and exhibit MB5 was so glaring that I drew the attention of the Registrar of the Supreme Court to it in a letter dated 23 May 1994. A copy of my said letter is exhibited hereto marked MB6.

28 A careful comparison between the page 28 of exhibit MB1 and exhibit MB5 starkly reveals that whilst page 28 of exhibit MB1 is consistent in its structure and coherent in its argument this is not the case with exhibit MB5.

29 For example, the second paragraph of page 28 of exhibit MB1 begins with the following words:

‘The Daily Graphic of Tuesday 24 February 1970 No 6033 carried the speech of Dr Busia on that day and I will quote a few extracts from it” and is followed by the quotation attributed to Dr Busia.’

30 The second paragraph of page 28 of the alleged certified copy attached to exhibit MB5 begins with the following words:

‘The Daily Graphic of Tuesday 24 February 1970 No 6033 carried the speech of Dr Busia on that celebration. I will however quote a few extracts from the ‘“Graphic View”” that day’, and proceeds to quote the graphic editorial, in effect saying that it is not quoting Busia’s speech but “Graphic View”.’

31 I sat in the Supreme Court throughout the hearing of the suit and was present in court when Mr Justice Abban read his reasons.

32 The front page of the same edition of the Daily Graphic carried a report of a speech which Dr Busia had given the previous day. It was boldly captioned: “Use Freedom Responsibly” and had a picture of Dr Busia.

33 It did not carry the full speech as alleged or even make any extensive extract from this speech. It is therefore incorrect to say that the Daily Graphic of 24 February 1970 carried a speech of Dr Busia. A photocopy of the Daily Graphic report is exhibited hereto marked MB7.

34 I am positive that in the judgment that he read in open Court the learned judge said that he was quoting from a speech made by Dr Busia which was carried in the Daily Graphic of Tuesday, 24 February 1970 and that he proceeded to read out what I later discovered was a Daily Graphic editorial without giving any kind of indication that what he was reading was Daily Graphic editorial or “Daily Graphic View”.

35 I did not hear him utter the words “Graphic View.” Having stated that Dr Busia made a speech a quotation from such a speech makes more sense and logic than a quotation from “Graphic View.”

36 I sent a copy of my letter and the article to The Free Press because I considered it in the public interest to do so.

37 It was at no time my intention to libel Mr Justice Abban or scandalise the Supreme Court as an institution or the Judiciary as an arm of the state.

38 I believe I was exercising my constitutional right as a citizen of Ghana to draw attention to errors in the judgment of Mr Justice Abban.

39.            I am not responsible for the various comments made by The Free Press .

40 I honestly believed and still believe that honest criticism of a judge’s judgment does not amount to contempt.

43 As a mature adult I am capable of forming my own opinion and taking my own decisions for which I am also ready to assume full responsibility.”

It must be said in favour of the 2nd respondent that he conceded that if this court felt that he was guilty of scandalising it he was ready to apologise. The 3rd respondent merely stood by the 2nd respondent.

A comparison of the replications of the 1st respondent’s affidavit to the affidavit sworn to on behalf of the applicant demonstrates quite clearly that in the publications complained of, the respondents were reckless and careless, not minding whether the contents of their affidavits were true. At page 6 of the issue of The Free Press  (Friday May 13 to Thursday May 19, 1994) appears the caption: “Justice Abban Is A Liar.” The whole of that page it seems was given over to K Mensa-Bonsu for his column: “Sentiments of K Mensa-Bonsu.” On the same page also appears the following statement:

“In his display of political chicanery and bamboozlement of Ghanaians the learned Supreme Court judge lifted the whole editorial comment of Daily Graphic newspaper of Tuesday February 24, 1970 No 6033 and portrayed it as a speech made by Dr K A Busia, Ghana’s Prime Minister in the Second Republic, which to all intents and purposes, is most outrageous in the field of legal issues.’

As if by design the word “chicanery” found itself in the column contributed by K. Mensa-Bonsu for The Free Press  at page 8 thereof (Friday May 20 to Thursday May 26, 1994). The caption for that week’s contribution read: “Judicial Chicanery.” The following are some quotations from that page:

 “(a) In his zeal to justify 31 December, Mr Justice Abban indulged in judicial chicanery by attributing to Dr Busia a statement he did not make. After exhuming the Daily Graphic edition of 24 February 1970 from the archives, the learned judge pontificated as follows: ‘It is a pity that the learned Supreme Court judge, either by gross negligence or outright chicanery, should have attributed it to him. Dr Busia’s broadcast was not reproduced in the Daily Graphic of February 24, 1970.’

(b) Another aspect of Mr Justice Abban’s chicanery is that he set his standard of proof too high, even though the proof he required was not germane to the issue.”

That page concluded:

“There is no doubt that Mr Justice Abban’s judgment is tainted with politics. The impression created in his judgment is that of a judge bending over backwards to please the government.

What is even more serious is the fact that he indulged in what is plain falsehood. This is bad in a judge whether it happened by accident, negligence or design. The Fourth Republican Constitution is in serious danger if judges, called upon to interpret the constitution, are going to use the Bench for what is manifestly politics of undisguised partisan nature and in the process do violence to the truth.”

After a series of publications in the various editions of The Free Press that paper in its edition of Friday June 3 to Thursday June 9 1994 by its front page banner headline in respect of the “Abban scandal” told the world that: “Mensah Bonsu tells Supreme Court ‘I heard it all’.” By this statement the 1st respondent says he was in court and heard the learned judge pronounce the alleged mistaken statement which constituted part of his reasons for his decision. I am satisfied that the 1st respondent is the author of the articles in The Free Press. I am satisfied that the 1st respondent is the author of the articles in The Free Press which bore the captions which included the words, “liar,” bamboozlement” “criminal” and “chicanery.” Also the editorial of The Free Press referred to the judges of this court as “lunatics - indeed zombies” who will be expected to “twist in his [Mr Justice Abban’s] favour a case which cannot stand on its mosquito feet even at the Media Commission.”

It may at this stage be well to understand the ordinary meanings of the serious words used in describing the judge and the court. For the sake of brevity I will use the definitions contained in Funk & Wagnalls Standard Dictionary (Comprehensive International edition) Vol 1. In that dictionary:

“liar is: “one who intentionally tells falsehood or is giving to lying.”

“bamboozlement (noun from the verb bamboozle) meaning (1) To impose upon; mislead; cheat (2) To perplex (3) To practice trickery or deception.”

“criminal (1)…Law, relating to crime or pertaining to the administration of penal as opposed to civil law. (2) Implying crime or heinous wickedness. (3) Guilty of crime the criminal classes one who has committed an offence punishable by law.”

“chicanery - The use of mean or paltry artifices, subterfuges or shifts, especially legal trickery or underhandedness. (2) Trick or dodge.”

“lunatic - (1) Affected with lunacy. (2) Characteristic of or resembling lunacy: crazy, insane.”

I have taken the liberty of setting down these definitions because English is a second language within our municipality and those who can speak that language (particularly in the press) often think that the use of sonorous words and expressions connote the meanings they desire to make in their vernaculars. Unfortunately this is not always so and may lead to difficulties and embarrassments.

The Attorney-General says that the publications taken together and given their proper connotations amount to the offence of scandalising the court and publishing scurrilous abuse of a judge thereof. It will be useful to consider what is meant by scandalising the court before proceeding to consider the submissions of counsel. I must state that in the course of hearing this application I kept reminding counsel that this was a case of criminal contempt but counsel directed their courses to the laws of libel and other matters which I thought did not address the issue in hand. Nevertheless I feel myself duty bound to consider their submissions. R v Gray [1900] 2 KB 36 contains the locus classicus on contempt of court by scandalising the court. This case received explanation and approval in R v Vidal, 1922 Times, 14 October, where this passage appears:

 “In his affidavit made a few days ago, he reiterates in emphatic language the matters complained of. He alleges conspiracy to suppress evidence and says that those who agreed to this conspiracy, perjury, and fraud found active assistance in the person of the learned President who presided at the trial. It is needless to say that those who administer justice are not immune from criticism even if it be quite wrong. It is one thing to criticize: it is quite another to do what Lord Hardwicke called ‘scandalizing the court or a judge,’ Lord Russel of Killowen said in R v Gray [1900] 2 QB 36 at 40:

…as these applications are, happily, of an unusual character, we have thought it right to explain a little more fully than is perhaps necessary what does constitute a contempt of court…Any act done or writing published calculated to bring a court or a judge of the court into contempt, or to lower his authority, is a contempt of court. That is one class of contempt …(and) belongs to the category which Lord Hardwicke, L.C. characterised as “scandalising a court or a judge.” That description of that class of contempt is to be taken as subject to one and an important qualification. Judges and courts are alike open to criticism, and if reasonable argument or expostulation is offered against any judicial act as contrary to law or the public good, no court could or would treat that as contempt of Court.”

Having thus defined what would constitute scandalising the court, I now proceed to consider the submissions of counsel. I am satisfied that the Attorney-General discharged his duty as was required. As the keeper of the public interest it was his duty to come to court anytime he formed the view that that interest was threatened. In the case of contempt of scandalising the court his duty was to lay the information before the Superior Courts and to leave the courts to determine after hearing the contemnors whether the conduct or statement complained of is proved. The Attorney-General does not thereby become a party to the proceedings. In the present application the Attorney-General by his affidavits discharged the burden which lay on him to inform the court of the existence of the offence. The burden was then cast upon the respondents to dissolve the order nisi in their favour.

Mr da Rocha, leading counsel for the 1st respondent submitted in reply to the submissions of Mr Amidu, the Deputy Attorney-General, that the issue was how the principles enunciated by the Deputy Attorney-General were going to be applied to the present application. In his submission, the 1st respondent was not guilty of contempt of court. Mr da Rocha relied for this proposition on the case of Mcleod v St Aubyn [1899] AC 549 at page 561. I have examined page 561 of the report very carefully and I cannot see that the case is of any assistance to the 1st respondent’s cause. I suppose counsel was desirous of relying on the dictum in the McLeod case, supra, that “when a trial has taken place and the case is over, the judge or jury are given over to criticism.” Yet again while conceding that the power to commit for contempt may be considered necessary for the due administration of justice, counsel submitted that: “It is not to be used for the vindication of the judge as a person. He must resort to action for libel or criminal information.” That may well be so. But there is a third course open to a judge so scandalised - contempt of court. The justification for such a course is given on the same page of the McLeod case, supra, where Lord Morris speaking for the Judicial Committee of the Privy Council said:

 “But it must be considered that in small colonies, consisting principally of coloured populations, the enforcement in proper cases of committal for contempt of court for attacks on the court may be absolutely necessary to preserve in such a community the dignity of and respect for the court.”

This dictum was made in 1899 and may now be considered racist. But the underlying principle is still valid with respect to countries emerging from colonialism - such as Ghana. Years of colonial rule have instilled in our populations a resistance to the institutions of colonial rule, one of such being the courts. In the post colonial era the resistance subsists and courts are wont to be described as instruments of government. Casual readers of our Constitution 1992 will observe that this court - and indeed all our courts - have become the watchdogs of the constitution. In the circumstances and in aid of the awesome responsibility entrusted to this court “the enforcement in proper cases of committal for contempt of court may be absolutely necessary to preserve¼the dignity and respect for the court.”

Nor is this all. Learned counsel cannot be serious when he submits that the 1st respondent can use such words as “liar,” “bamboozlement,” “chicanery” and describe this court as composed of lunatics etc and yet not be guilty of contempt. The matter is not without authority. In R v Freeman, Times (1925) November 18, Freeman it seems had been engaged in consistent attacks on the judge in an attempt to force judge to sue him for libel. The report continues:

 “He began to assail the learned judge with letters and postcards containing the grossest calumny and vituperation. What had been Freeman’s attitude to that language, which he had reiterated after frequent warnings and expostulations, and which he had now repeated in that court? In one letter he had said to the learned judge: ‘You are a liar, a coward, a perjurer¼You aided Lord Sheffield in a felony.’

All those expressions Freeman adhered to without a word of apology or regret. He said that he was entitled to say these things with a view to force the learned judge to take proceedings against him. Well, proceedings had been taken.

Freeman’s language, by itself and by its reiteration, constituted as gross a contempt as had lately been brought to the knowledge of the court.”

Incidentally the record shows that Mr Vidal who had recently been convicted for contempt of court was in court. I think these publications demonstrated a case of contempt by scandalising the court.

As I have stated earlier, in the course of the hearing of the arguments I kept directing the attention of counsel to the proper nature of the application. Nevertheless Mr da Rocha, leading counsel for the 1st respondent thought he had made a profound statement when he submitted that once a judge had made a pronouncement in court such pronouncement was in the public domain and was therefore incapable of being retracted. Profound as such a proposition may be, it is not altogether correct and in any case was irrelevant as a defence to the application under consideration. As I have said I will consider that proposition. But before I do so I think I ought to set the parameters for dealing with such type of contempt.

In the Belize Times Press case, supra, at page 587 appears the following:

 “The question, in my judgment, in a case of this nature, is not that there are four additional counts so to speak in charge sheet, but one count only, the count being scandalising the court, and in the determination of guilt or otherwise, the court must look at all the passages in the article in order to be satisfied whether or not the written publication was calculated to bring the court into contempt or lower its authority or bring it into disrepute and disregard.”

So that whatever came out of the judges mouths is irrelevant when a court comes to consider a case of scandalising the court. The court must look at the publications and in the light of whatever explanations are offered by the respondent or contemnor to decide whether the case had been made out.

I have a feeling that my opinions on this matter may be obiter since strictly speaking they may not be necessary for my decision. Besides I do not think that the conclusions will enure to the benefit of the 1st respondent. Nevertheless the matter has attracted great publicity and the untutored and popular world may think that the proposition is wholly correct. Lawyers and learned men are aware that there are rules relating to the obtaining and publishing of documents and judgments from the courts. It will be wrong if anybody could go out and publish what he assumes he heard in court without checking in the proper manner from the court. In the instant application what would the respondents say if someone else who was in court published that he heard differently? This is the moral to be learnt form the story of the three blind men who went to the zoo to “see” the elephant. Of course each of them “saw” a different thing and pronounced it so and they were all wrong. They were correct on only one thing - they were all present at the zoo. The policy reason for the establishment and maintenance of a registry of a court is not only for the storage and safekeeping of records - including judgments - but also to enable authenticated copies of any such documents so stored to be extracted for private or public use. In my view the fact that a person has heard a judge say something in court is not the justification for repeating the same outside the courthouse without having the same authenticated. Mr da Rocha may therefore be right that once a judge has spoken in court his words are clearly within the public domain but they are bereft of any value when pitted against the authenticated written version. Much fuss was made by the respondents in their editorial under attack in which they referred to the judgment of a British Acting High Court judge in a celebrated libel case involving a prominent Ghanaian. The transcript of the judgment had been authenticated and certified. The question may be asked could anybody obtain an unauthenticated and an uncertified copy of the judgment and publish it? I say that person would have been guilty of contempt of court.

But the 1st respondent did not end there with what he allegedly heard in court. He visited his friend the Deputy Judicial Secretary and sought for a copy of Mr Justice Abban’s judgment. He was told yet another lawyer friend had collected a copy from him and the 1st respondent could obtain a copy if he so desired from that mutual friend. This he did and from that signed copy his suspicions were confirmed. What he had heard in open court was apparently correct. After some correspondence on this copy he went to the press. The offending page in the judgment was page 28. Subsequently the registrar of this court furnished the 1st respondent with a certified true copy of page 28 of the same judgment. A comparison revealed a small but significant difference between the two documents. Hence the campaign of abuse and vilification directed at the judge and the court.

It is at this point proper to interpose my opinion with my reasons in respect of the application of Mr da Rocha to call two witnesses to give oral evidence on his client’s behalf. Subpoenas had been issued to two officers of the court. They were Mr Owusu-Ansah, the Deputy Judicial Secretary and Mr Tawiah, a registrar of the High Court who was for some time the acting registrar of this court. I joined the majority in rejecting this application.

First, the practice of contempt in this court even though conferred on us by the constitution yet there are no specific rules for invoking this practice. Second, in the circumstances the general practice of the Superior Courts as to this type of practice will apply. If I am correct, - and I have no reason not to be correct - then the practice is that where the application is made under statute - or the constitution - and the rules do not specify any method for approaching the court, the proper method is by an originating notice of motion. Third, evidence shall strictly be by affidavits. Fourth, in the case of contempt of court it is only the respondents or contemnors who may choose to give oral evidence in answer to the motion. Fifth, generally speaking it is the privilege of the court, rather than the right of the parties, in the interest of justice to call oral evidence but the court will usually invite such persons to furnish it with affidavits on the issue on which such information is required. In the present application the 1st respondent had already mentioned the names of the witnesses he wished to call in his affidavit and as the Deputy Attorney-General had not made any submission which had taken the 1st respondent by surprise the application was dismissed.

The Deputy Attorney-General submitted that the signed judgment obtained by the 1st respondent was a forgery. I do not wish to comment on his submission on this matter. The truth of the matter is the court is presented with two documents and it is called upon to determine which of the two is genuine. Now a genuine document in law is one that will be admitted in evidence when tendered. In other words such a document must satisfy the evidential requirements for its admission.

In the instant application it is evident that the signed but uncertified document emanated from Mr Tawiah through the Deputy Judicial Secretary to another lawyer and then to 1st respondent who made a photocopy and the same published in The Free Press. It must be admitted that in this case the person who was in official possession of the judgments of this court is the registrar, Mr Logoh. True, under the rules of this court, registrar includes the Judicial Secretary. But in this case the affidavit of the Deputy Judicial Secretary did not say that he had ever been in possession of the judgments. Therefore on the basis of the maxim “omnia praesumuntur rite et solemniter esse acta” the registrar of the Supreme Court was the person entitled to proper custody of the court’s documents including its judgments. Applications for copies of the courts documents must be made to the registrar. By section 70(2) of the Courts Act 1993 (Act 459) it is provided as follows:

 “(2) If a person affected by a judgment or a court order desires to have a copy of the judgment, order, deposition or other part of the record, he shall on application for the copy be furnished with it if he pays its cost except where the court for some special reason thinks fit to furnish it free of charge.”

Quite apart from the 1st respondent not being affected by the judgment - even if he was - the 1st respondent had made no written or oral application to the court for a copy of the judgment nor paid the cost for that judgment nor was he exempt from paying any cost therefor. To use the local English, he obtained the judgment “by the back door” and that is a contempt of court. In the case of Dobson v Hastings [1992] 2 All ER 94 where a newspaper reporter in the course of her investigation unlawfully obtained information from the records of the court and published it, the matter of her having so unlawfully obtained and therefore committed contempt of court was considered. There are two dicta in that judgment which appeal to me and I think satisfy me that contempt of court was committed by the 1st respondent and it seems by all those who unlawfully obtained that signed judgement.

On the failure to comply with the rules the judgment says at page 101(g):

 “Of course, in the ordinary way a failure by a party to comply with an obligation imposed on him by the rules is not a contempt of court. The court has at its disposal other sanctions for ensuring that justice is done between the parties to an action when one of them fails to take some procedural step which the rules require of him. For example, the court may strike out the plaintiff’s proceedings or the defendant’s defence. But that course is not available in a case where a non-party inspects documents on a court file. Take the case of a person who knows that, pursuant to the court procedures, documents have been lodged in an office of the court. He also knows that he has no right to inspect them. Despite that he nonetheless proceeds to inspect the documents. He gains access to them by deception of court officials or by some subterfuge. He then publishes what he discovers. In my view such a person is interfering with the administration of justice. He commits a contempt of court.”

And on the effect of such conduct at page 102(f):

“In my view considerations such as these go to the seriousness of the contempt, rather than to its existence. The essential vice lies in knowingly interfering with the court’s documents. This is as much as interference with the administration of justice as knowingly interfering with the court’s officers. The boundary line is to be drawn at the point where there has been a taking of information from documents in the custody of the court knowing that leave was needed and that it had not been obtained. In such cases there is an act of interference with the judicial process; there is also an intention to interfere, because the act was done with knowledge that it was a contravention of the prescribed judicial process.

‘With knowledge’ includes cases where access was obtained by practising deceit or trickery on court officers. It may also include a case where, to the knowledge of the person seeking access, the court officer is acting under a mistake. For instance, the clerk hands over the file in the mistaken belief that the person seeking access is entitled to inspect it. I have considered whether the latter type of case is properly to be regarded as an interference with justice. In my view it is. Again, the absence of deceit or trickery goes to the seriousness of the contempt, not to its existence. The key feature is the need for knowledge that the inspection in question is a contravention of the rules. There is such knowledge when a person is fully aware that a court officer is acting under a mistake, just as much as in a case where the mistaken belief was induced by deception.”

Clearly the conduct of the 1st respondent with respect to obtaining the said judgment and publishing it was a contempt of court. Thus the certified copy of that judgment was the only correct admissible and acceptable judgment. A certified copy, as defined in Osborn’s Concise Law Dictionary’ means:

 “A copy of a public document, signed and certified as a true copy by the officer to whose custody the original is entrusted, and admissible as evidence when the original would be admissible. Also, it is provided by various statutes that certified copies of certain documents and entries shall be receivable in evidence if properly authenticated.”

In spite of these several defects in the attitude of the 1st respondent to this application, he contends that the judgment has been “doctored.” I understand him to mean that the learned judge had so tampered with the judgment in such a significant manner as to seemingly remove the offending part of the judgment. Mr da Rocha, leading counsel for the 1st respondent observed the obvious break in the writing and invited us to go on a journey of English appreciation. Useful as the tour was I must confess that in my life at the Bar and or the Bench I have seen many non sequiturs. The essential question is whether such non sequitur involves or implies such a break in the thinking process as to make the second part of the statement incomprehensible having regard to the meaning of the former part. I think the respondents would be the first to have appreciated the correction since they were anxious that the late Dr Busia was not misquoted if they did not have any mischievous intentions.

The whole question of review of judgments by judges has been excellently treated in a major contribution by the late Mrs Janet Daniels, Barrister-at-Law, the illustrious and indefatigable Editor of the Ghana Law Reports in (1974) 6 RGL 19. In her contribution entitled: “Patterns and fashions in reported judgments” at page 31 under subtitle: “Editorial Fashions” she writes:

 “There can be few lawyers who have noticed that there are differences between certified true copies of judgments, and those same judgments as they appear in law reports.”

She gives cogent reasons why this may be so. Says she:

 “All references given by the judges are checked. Mistakes of grammar are also corrected. The edited script is then returned to the judge for his approval.’

She concludes that this is a delicate exercise in which the judges usually co-operate. I cannot imagine that if the late Mrs Janet Daniels saw such a glaring misquotation as is contended by the respondents she would not have corrected and sent it to the learned judge for his approval. Mrs Janet Daniels says at page 33 of her article that:

“Ex tempore judgments as delivered in the United Kingdom give judges and editors more latitude as the following shows:

‘In an interesting note entitled “Law Reporting and the Amending Hand” the New Law Journal (May 7, 1970, p 423) discussed an amendment apparently made by Lord Denning MR in his judgment as delivered orally in Court in Ghani v Jones [1969] 3 All ER 1700; (1969) 3 WLR 1158. In the original judgment Lord Denning MR had said that: ‘The police officers must have reasonable ground to believe that the person in possession of the property has himself committed the crime or is implicated in it or accessory to it’, while in the revised version the following words were added, ‘or at any rate his refusal must be quite unreasonable.’ The note points out that this reached an entirely opposite conclusion from the original one as it now entitled the police to take away property from a person who was innocent of the crime. The note suggested that if the judgment of a court as delivered is wrong by reason of any substantial error or omission, its correction should be by way of appeal and not by way of judicial revision of the judgment before it is reported’.”

Those who think that English judges delivering ex tempore judgments may not necessarily revise their opinion can observe Lord Denning in the case cited above. In my respectful opinion it is more dangerous for a judge after judgment to introduce passages which change the meaning and effect of a judgment than for a judge to make slight amendments to his opinion which have no effect whatsoever on the effect and result of a case.

I cannot better conclude my opinion on this part of the submissions than to express my gratitude, albeit posthumous, to Mrs Janet Daniels, for leaving with us real insights into the business of law reporting. The majority of lawyers come face to face with the law in the Law Reports. It is interesting, therefore to know that even the certified true copy of a judgment may not accord with the same case as reported.

Mr Akufo-Addo, leading counsel for the 2nd and 3rd respondents argued with characteristic force on behalf of his clients. It must be said that part of his address was committed to supporting the case of the 1st respondent. That, in my view was quite natural and proper. For the 1st respondent had originated their involvement in the situation in which they found themselves. But the 2nd and 3rd respondents had defences to make on their own behalf.

Mr Akufo-Addo submitted that the 2nd and 3rd respondents’ defences were predicated on four issues which were:

1    Is the allegedly improper conduct of a member of this court, the proper subject of criticism by the press?

2    Are there any limits to the criticism of a public official such as a judge who is precluded from defending himself in public and who is operating in a pluralistic society?

3    Whether by focusing upon the conduct of one member of the court there was contempt when there was no aspersion or criticism of the outcome of the case; and

4    What is a judgment of a court.

In a further submission Mr Akufo-Addo said the judgment of a court is what the judge reads in court. Learned counsel posed the question whether there were limits to the criticism of a judgment of a court and whether the press was entitled to comment on the improprieties of a judge with respect to his judicial functions. Counsel submitted the press was entitled so to do. He further submitted that the judge under attack recognised that the matters complained of were personal to him that was why he took his complaint to other forums before concluding with this application for contempt of court by scandalising the court. Counsel noted that the 2nd respondent was prepared to apologise if this court found that the publications were scandalous. Counsel submitted that the attack was on the judge in his individual capacity and not as a member of the Supreme Court.

Finally Mr Akufo-Addo submitted that in the peculiar circumstances of this case the truth of the allegation would constitute a defence to a charge of scandalising the court.

Counsel’s submissions were attractive but they were not convincing. As I have already stated counsel having addressed us in support of the 1st respondent some of the issues raised have been answered. With respect to the other submissions I am of the opinion that the views of learned counsel’s late illustrious and distinguished father Akufo-Addo CJ and later President of the Republic of Ghana expressed in Republic v Liberty Press Ltd [1968] GLR 123 more than amply answer his submissions.

I will hereafter cite his classic statement on the topic in hand. But there are two matters in counsel’s submissions, which need special treatment. Counsel submitted, as I have stated that the attack was on the judge as an individual and therefore this court could not be said to have been scandalised by those publications. I disagree with that submission. First as a Supreme Court judge he does not sit alone. He sits in banc. Second, whatever powers or jurisdiction that the judge possesses must be exercised in conjunction with at least four of his brethren. In the circumstances abuse of one member is an abuse of the rest of the members of the court. I have the benefit of Cotran CJ of Belize’s reference to the dictum of Martin CJ of New South Wales at page 597 of the Belize Times Press case, supra, when he cited Re The Evening Newspaper (1880) NSWLR 211 at 237 where it was reported:

“What are such courts but the embodied force of the community, whose rights they are appointed to protect? They are not associations of few individuals, claiming on their own personal account special privileges and peculiar dignity by reason of their position. A Supreme Court like this, whatever may be thought of the separate members composing it, is the appointed and recognised tribunal for the maintenance of the collective authority of the entire community…it derives its force from the knowledge that it has the whole power of the community at its back. This is a power unseen, but efficacious and irresistible and on its maintenance depends the security of the public.”

Learned counsel submitted that in the peculiar circumstances of this case the truth of the allegation was a defence. I disagree. The matter is covered by authority. In the Belize Times Press case there occurs a passage which in my respectful opinion settles the issue. At page 601-602 of the report the learned Chief Justice of Belize writes:

 “Justification or truth is a defence to civil libel but it has not been known to be a defence in cases of contempt of court even where contempt involved a finding of facts. In R v Castro, Skipworth’s case (1873) LR 9 QB 230 (a case where the contempt was alleged to prejudice a fair trial) Blackburn J said:

 ‘The defendant urged that we ought to allow the case to go to trial before a jury, because he might prove the truth of what he alleged. The truth of it has nothing to do with the question. The question at present is, is he trying to interfere with the course of justice.”

Borrie and Lowe in their Law of Contempt, 1973 at p 165 wrote that:

 “The rational of any type of contempt is that the administration of justice has to be protected. Thus if allegations of partiality, or corruption, even if true, have the potential effect of lowering the court’s repute and thereby undermining public confidence in the administration of justice contempt will have been committed.”

One matter remains for comment. I have found no need to comment on the affidavit of the expert Mr Owusu. The subject of his investigations, though interesting, was irrelevant to the issues at hand. The issue was: Had the publications in The Free Press scandalised the court? To resolve this issue it is to the publications that we must look and not to the respective merits of the judgments giving rise to those publications.

As with Apaloo CJ so earlier with Akufo-Addo CJ we ought to demonstrate some originality in our pronouncements and look homeward for restatements of our national philosophy with respect to our civil institutions and our attitude to the freedoms that we enjoy. In this area I can do no better than quote Akufo-Addo CJ in the Liberty Press case, supra, where he wrote at page 135-136 the following:

 “I need hardly say that the judiciary has never claimed to be above criticism. Indeed I have no more than one occasion stated in public that the judiciary, like any other democratic institution, must justify its continued existence. This implies that its actions and conduct must be subject to the same measure of public scrutiny as any other governmental institution. Justice, it has been said, is not a cloistered virtue, and those who have the responsibility to dispense justice will certainly not want to live in cloisters. But the important position of the judiciary in any democratic set-up must be fully appreciated. Performing, as they are called upon to do, the sacred duty of holding the scales between the executive power of the state and the subject and protecting the fundamental liberties of the individual, the courts must not only enjoy the respect and confidence of the people among whom they operate, but also must have the means to protect that respect and confidence in order to maintain their authority. For this reason any conduct that tends to bring the authority and administration of the law into disrespect or disregard or to interfere in any way with the course of justice becomes an offence not only against the courts but against the entire community which the courts serve. Such conduct constitutes the offence of contempt of court, and the courts are vested with the power of dealing with it in a manner that is almost arbitrary. For this reason the power is rarely invoked and only when the dignity, respect and authority of the courts are seriously threatened. It has been said that these powers are given to the courts (and the judges) to keep the course of justice free; power of great importance to society, for by the exercise of them law and order prevail; those who are interested in wrong are shown that the law is irresistible.

It is contempt of court by deed or word to scandalise the courts. It is contempt of court to make statements amounting to abuse of the courts. It is contempt of court to make statements, which tend to expose the courts or parties who resort thereto to the prejudice or hatred or ridicule of mankind.

Within these limits and within the further limits set by the legitimate exercise of the freedom of thought and expression criticism of judicial acts is free. The press both high and low must fully realise and appreciate that there is no such species of the freedom of thought and expression as press freedom. The freedom which the press enjoys is no less and no more than the freedom of thought and expression which the humblest illiterate citizen enjoys.”

Mr da Rocha contends that contempt applications should not be used to frighten citizens from criticising the courts. I agree with him. I also think that the dictum of Akufo-Addo CJ in the Liberty Press case, supra, is sufficient guarantee of this court’s attitude to this type of application. The Constitution 1992 speaks of a right to freedom of speech, of expression and of the media of which the press is an integral part. But a right is correlative to responsibility. Clearly there cannot be such a thing as an unlimited right to print whatever one desires. The textbook writers have culled from a learned discourse a passage, which fully expresses my view on the issue of the freedom of the press. It states:

 “There is no such thing as an unlimited right to print whatever one may choose to print, regardless of its character and effect. Without law there can be no liberty, and freedom of the press does not mean irresponsibility for what is printed. All right-thinking men will join with Alexander Hamilton in his reprobation of “the pestilential doctrine of an unchecked press’, and agree with him that ill-fated would be our country were this doctrine to prevail.

 It is for the State to say what publications are harmful, what use of the press is permissible. It would be an act of tyranny under normal conditions to deprive a citizen of the right to own a gun, but it is essential to public safety to prevent him from using it to the injury of others. So it is with the printing press, an instrument no less dangerous than a shotgun. It is not tyrannous or inconsistent with the freedom of the press that its owner should be held accountable for any improper use he may make of it.”

See Constitutional Law Cases and Materials by Cohen & Varat 9th ed page 1201. The respondents seized upon a little slip by the judge in his judgment and set out on an inglorious campaign of abuse and vilification of the basest order against him and the court. All the respondents were guilty of contempt of court.

I note that the 2nd respondent has a desire to apologise if we should find him guilty. I think his readiness to apologise must be taken into consideration in the award of punishment. I note also that the 2nd and 3rd respondents say they relied on the expert knowledge and experience of the 1st respondent. I think the 1st respondent took over the editorial chair of The Free Press and from there orchestrated his vicious campaign of abuse and vilification against Mr Justice Abban and this court. He says he is man enough to take the consequences of his actions. So be it.

AMPIAH JSC. This is an application made to the court by the Attorney-General, for an order of committal or attachment against:

 (1)            Kwabena Mensah-Bonsu, a legal practitioner, and a Columnist of The Free Press, a local newspaper;

 (2)            Eben Quarcoo, the editor of The Free Press newspaper, and,

 (3)            Tommy Thompson Books Ltd, the printers, publishers and proprietors of The Free Press newspaper, for their alleged contemptuous publications and conduct concerning a court or a judge thereof.

The respondents have refuted the allegations and claimed that the publications were true of the conduct of the judge and that what was published was a fair comment made in good faith.

The facts culminating in the present proceedings are that, on 29/12/93, this court gave judgment in New Patriotic Party v Attorney-General [1994-95] GBR 1 and reserved its reasons for the judgment; the judgment was by a majority of 5 to 4. On 8/3/94 each of the 9 judges gave his or her reasons for the judgment; the reasons took over 8 hours to deliver.

On 9 May 1994, almost about two months after the delivery of the reasons for the judgment, the 1st respondent wrote to one of the judges, namely Justice I K Abban, with a copy to the Chief Justice, saying: