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Practice and
Procedure – invoking the
supervisory jurisdiction of the
court - Judicial review - Judge
– Reasonable likelihood of bias
- Burden of proving the
allegation - Prohibition from
hearing a case – Judicial
impropriety –
HEADNOTES
The second
defendant to the suit, complains
against the presiding judge Mr.
Justice Benson and catalogued
several allegations of
judicial
impropriety against the said
judge. The first allegation
relates to a petition which he
lodged at the Chief Justice’s
office out of which the Chief
Justice advised the learned
judge to uphold the scales of
justice evenly between the
parties. The Chief Justice,
however, did not transfer the
case from Mr. Justice Benson as
requested by the applicants
herein. Subsequent to the above
event, the deponent stated in
the affidavit that on one
occasion when the case was
called and their lawyer was
absent, the said judge made
certain comments against the
deponent to the effect that he
had sent “a bogus petition” to
cause the delay of the case. He
further deposed to the fact the
learned judge has described him
as “a very cantankerous
personThe applicants naturally
view this comments as a basis
for alleging
bias,
ridicule and prejudice against
them. They are of the opinion
that given the uncomplimentary
remarks by the learned judge
they would not get justice from
the court and pray this court
for an order of prohibition to
prevent the learned judge from
proceeding to hear the case The
application has been opposed by
the interested party who is the
plaintiff in the action, the
learned judge himself swore to
an affidavit in which he stoutly
denied all the damning
allegations of judicial
impropriety levelled against him
The applicants filed a further
affidavit in reply on 14/07/2010
in which they raised concerns
about the conduct of the trial
judge for swearing to an
affidavit in answer to the
application. The applicants
complain that the learned judge
by doing so had descended into
the arena of litigation and that
this conduct is a manifestation
of the suspicion that he would
be bias against the applicants
HELD
We are,
however, of the opinion that the
facts on which the law could be
applied do not exist in this
application for the reasons
given above.
We therefore
proceed to dismiss the
application for prohibition
against learned judge
From the facts of
this case, the applicant with
respect has not been able to
establish with any degree of
particularity the various
allegations constituting bias
against the learned trial Judge.
It should be noted that the
applicant needed to have done
more to prove the allegations
contained therein. Judges must
as a rule desist from engaging
in acrimonious exchanges between
them and Counsel or the party in
cases before them. This is
because, as human beings, a
Judge who does not exercise
discernment and makes comments
as it were showing his anger one
way or the other will create a
situation where the party
alleging bias would find it
difficult to accept the fact
that he will have a fair trial
in his court. Apart from the
affidavit sworn to by the trial
Judge in this application I find
no such evidence in support of
open acrimony by the trial judge
towards the applicant.
STATUTES
REFERRED TO IN JUDGMENT
Evidence Act,
1975 NRCD 323.
CASES
REFERRED TO IN JUDGMENT
O’reilly
v. Mackman [1983] 2AC 237
R v.
Secretary of State for the Home
Department, Ex parte Khawaja
[1984] AC 74
Florence v.
Lawson [1851] 17 LT 260
Attorney –
General
v. Sallah [1970] CC 54
In Re
Appenten (dec’d); Republic
v. High Court, Accra, Ex
parte Appenten & Anor [2005
– 2006] SCGLR 18
Republic
v. High Court , Ex parte
Mobil oil (Ghana) LTD, (Hagan
Intersted Party) [2005 –
2006] SCGLR 312
Republic vrs
High Court, Denu, Ex-parte
Agbesi Awusu II No 1 (Nyonyo
Agboada Sri III) Interested
Party [2003-2004] SCGLR 864
BOOKS
REFERRED TO IN JUDGMENT
THE SUPREME
COURT PRACTICE 1995 edition
Volume I page 869
DELIVERING
THE LEADING JUDGMENT
ANIN YEBOAH JSC:
COUNSEL
EGBERT
FAIBILLE JNR. FOR THE APPLICANT
ATTA AKYEA
FOR THE RESPONDENT
___________________________________________________________________
R U L I N G
___________________________________________________________________
ANIN YEBOAH JSC:
The
supervisory jurisdiction of this
court has been invoked to
prohibit
the High Court, Accra from
hearing the case intituled
as: suit № BD 6/2007: GHANA
PORTS & HARBOURS AUTHORITY &
ANOTHER V. CONCORD MEDIA
LIMITED & ANOTHER and two
contempt applications pending
before the same judge.
In an affidavit supporting the
application,
the second defendant to the
suit, one ALFRED OGBAMEY,
complains against the presiding
judge Mr. Justice Benson and
catalogued several allegations
of judicial impropriety against
the said judge.
The first allegation relates to
a petition which he lodged at
the Chief Justice’s office out
of which the Chief Justice
advised the learned judge to
uphold the scales of justice
evenly between the parties. The
Chief Justice, however, did not
transfer the case from Mr.
Justice Benson as requested by
the applicants herein.
Subsequent to the above event,
the deponent stated in the
affidavit that on one occasion
when the case was called and
their lawyer was absent, the
said judge made certain comments
against the deponent to the
effect that he had sent “a bogus
petition” to cause the delay of
the case. He further deposed to
the fact the learned judge has
described him as “a very
cantankerous person”.
The applicants naturally view
this comments as a basis for
alleging bias, ridicule and
prejudice against them. They
are of the opinion that given
the uncomplimentary remarks by
the learned judge they would not
get justice from the court and
pray this court for an order of
prohibition to prevent the
learned judge Mr. Justice Benson
from proceeding to hear the case.
Annexed to the affidavit is a
copy of the petition which the
applicants sent to the Chief
Justice for her intervention.
The application has been opposed
by the interested party who is
the plaintiff in the action
at the High Court in which the
second applicant and the Concord
Media Limited have been sued for
damages for defamation and other
ancillary reliefs.
On the
30/04/2010, the learned judge
himself swore to an affidavit in
which he stoutly denied all the
damning allegations of judicial
impropriety leveled against him
in the affidavit in support.
Annexed to the affidavit is a
Certified True Copy of the
record of proceedings dated the
14/12/2009 showing the
submissions of counsel for the
interested party.
The
applicants filed a further
affidavit in reply on 14/07/2010
in which they raised concerns
about the conduct of the trial
judge for swearing to an
affidavit in answer to the
application. The applicants
complain that the learned judge
by doing so had descended into
the arena of litigation and that
this conduct is a manifestation
of the suspicion that he would
be bias against the applicants.
The practice in such
applications is for a registrar
of the court sought to be
prohibited in the case to swear
to the affidavit on behalf of
the court. In contentious
matters where the facts are in
issue, the superintending court
may allow an application for the
deponents to the affidavits to
be cross-examined.
We are of this view in that if
in course of hearing an
application for
judicial
review and the court
exercising its supervisory
jurisdiction grants leave to
parties to cross-examine on the
affidavits, a judge whose
affidavit is on record may also
have to be cross-examined. This
practice should be deprecated to
avoid any attack against the
judge.
A short passage from
THE
SUPREME COURT PRACTICE 1995
edition Volume I page 869
has stated the position as
follows:
“Leave
to cross-examine deponents upon
their affidavits in judicial
review proceedings should be
granted where the interests of
justice so require (O’REILLY
V. MACKMAN) [1983] 2AC
237 per Lord Diplock; only
rarely will it be essential in
the interest of justice to
require the attendance for
cross-examination of a deponent
from overseas (R
V. SECRETARY OF STATE FOR THE
HOME DEPARTMENT, EX PARTE
KHAWAJA [1984] AC 74”
As the registrar of the court
was available for swearing to
the affidavit in answer, we do
not think it was proper for the
learned judge to do so. If as a
court of record the registrar
could prove facts in issue the
judge ought not to have sworn to
any affidavit. See
FLORENCE V. LAWSON
[1851] 17 LT 260 in which it
was held that a judge of the
Superior Court should not be
called as a witness to prove
facts which may be proved
equally well by other persons.
However, on 17/6/2010 one MARK
WILFRED KOBABO KWARA, the chief
Registrar of the High court ,
Accra swore to an affidavit on
behalf of the judge. He stoutly
denied the allegations of
judicial impropriety leveled
against the judge. Annexed to
his affidavit is the proceeding
of the court on the 14/12/2009,
the day the said judge allegedly
made the uncomplimentary
comments against the applicants.
The gravamen of the allegations
of bias and prejudice could be
found in paragraph 10 of the
affidavit in support of the
application. For a fuller
record paragraphs 10 and 11
thereof are reproduced below;
“10. That on the 14th
day of December 2009 at a
hearing of the suit in the High
Court and open court, the
learned judge exhibited bias and
prejudice towards me.
11.
That on the said date, when the
suit was called, my counsel was
not available and when the
learned judge asked me of the
whereabouts of my counsel I
informed him that he is on his
way to court”
These depositions were denied
and in further answer the
proceedings of that day, that
is, the 14th day of
December 2009 was exhibited to
show that one Eric Atieku was
indeed present as a lawyer for
the applicants herein. We find
this as disturbing as
allegations of judicial
impropriety were made out of the
deposition which on the face of
the record is not true.
Allegations to warrant our
intervention by way of
prohibition must be proved in
the same way as in every civil
proceedings where averments are
denied and proof is required.
We do not wish to proceed to
discuss this standard of proof
in more detail than to refer to
the case of
ATTORNEY – GENERAL V.
SALLAH [1970] CC 54 in
which the court held per Amissah
JA as follows:
“In
objections like the instant one,
evidence is not often required
because the facts, which are
often true, are uncontroverted.
But where the facts are
controverted as in the instance
application, they must be
proved. The standard of proof
required should at least reach
that required in civil cases”
(emphasis ours)
The allegations were not proved
to our satisfaction as required
by the standard set out under
section 12 of the
Evidence
Act, 1975 NRCD 323.
In their statement of case,
learned counsel for the
applicants referred us to the
current pronouncement on the law
governing the intervention of
the Supreme Court in matters of
this nature. All the cases
cited;
IN RE APPENTEN (Dec’d);
REPUBLIC V. HIGH COURT,
ACCRA, EX PARTE APPENTEN & ANOR
[2005 – 2006] SCGLR 18 and
REPUBLIC V. HIGH COURT ,
EX PARTE MOBIL OIL (GHANA) LTD,
(HAGAN INTERSTED PARTY)
[2005 – 2006] SCGLR 312
restate the common law
position on disqualification of
justices on grounds of bias or
prejudice.
We are,
however, of the opinion that the
facts on which the law could be
applied do not exist in this
application for the reasons
given above.
We therefore proceed to dismiss
the application for prohibition
against learned judge.
[SGD]
ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
CONCURRING
OPINION
JONES DOTSE
JSC:
I have had
the prior honour and advantage
of reading the ruling just
delivered by my brother
Anin-Yeboah JSC.
Even though I
agree with the conclusion
reached in the matter that the
application to prohibit the
learned trial Judge from hearing
this matter be dismissed, I am
constrained to make the
following comments in support of
the ruling and also for the
guidance of trial court Judges.
In the case of
Republic vrs High Court, Denu,
Ex-parte Agbesi Awusu II No 1
(Nyonyo Agboada Sri III)
Interested Party [2003-2004]
SCGLR 864, the Supreme
Court set out conditions for the
grant of prohibition against a
trial Judge on a charge of bias
or real likelihood of bias. The
court stated thus:
“A charge of
bias or real likelihood of bias
must be satisfactorily proved on
balance of probabilities by the
person alleging same. Whether
there existed a real likelihood
of bias or apparent bias was an
issue of fact determinable on a
case to case basis.”
From the
facts of this case, the
applicant with respect has not
been able to establish with any
degree of particularity the
various allegations constituting
bias against the learned trial
Judge. It should be noted that
the applicant needed to have
done more to prove the
allegations contained therein.
Judges must
as a rule desist from engaging
in acrimonious exchanges between
them and Counsel or the party in
cases before them. This is
because, as human beings, a
Judge who does not exercise
discernment and makes comments
as it were showing his anger one
way or the other will create a
situation where the party
alleging bias would find it
difficult to accept the fact
that he will have a fair trial
in his court.
Apart from
the affidavit sworn to by the
trial Judge in this application
I find no such evidence in
support of open acrimony by the
trial judge towards the
applicant.
I will
therefore concur with the ruling
of Anin-Yeboah JSC.
[SGD] J. V. M.
DOTSE
JUSTICE OF THE SUPREME COURT
GBADEGBE JSC:
I have had the advantage of
reading before-hand the draft of
the judgment about to be
delivered by my brother Anin-
Yeboah JSC and I agree with him
that the application herein be
dismissed. But like my brother
Dotse JSC I think that the
application raises some points
of procedural importance
wherefore I wish to express my
decision in the following words
for future guidance in
applications of this nature.
We have before us a notice of
motion by the applicant invoking
our supervisory jurisdiction in
prohibiting the High Court Accra
and in particular Benson J from
hearing the case entitled Ghana
Ports & Harbours Authority &
Another v Concord Media &
Another as well as two motions
in the cause that are pending
before him for contempt of
court. In the supporting
affidavit, the deponent accused
the presiding judge of having
in the course of deliberations
before him referred to a
previous petition that he had
authored to Her Ladyship the
chief Justice seeking a
transfer of the matter from the
said judge as “ a bogus
petition’’. The said deposition
also alleged of and concerning
the judge that he had described
the witness as “a cantankerous
person”. Based on the said
allegations, the applicants were
apprehensive that the learned
judge had lost his impartiality
as the words on which the
application was based were
prejudicial to a fair
consideration of the matters
before him as an adjudicator.
Not unexpectedly, the
application has been vehemently
opposed by the interested party,
the plaintiff in the action
before the High Court that is
based on an alleged libelous
publication.
I observe of
the substance of the allegation
that they appear to be such that
if proved by the applicant would
raise an issue of a
reasonable likelihood of bias
against the learned judge.
In cases of this nature the
burden of
proving the allegation made
against the judge rests on the
applicants and the mere fact
that proof in these instances is
ordinarily by means of
affidavits does not in the least
relax the evidential burden
contained in the rules of
Evidence as contained in section
12 of the Evidence Act, NRCD
323. Although in practice the
court rarely in applications
for judicial review grants
leave to the parties to
cross-examine deponents , where
there has been a denial of the
allegation against the judge and
there is no request according to
the existing practice by the
applicant for leave to
cross-examine the respondent on
the facts on which the right
to prohibition is based then it
appears that the first hurdle of
establishing the basic facts
that give rise to the court’s
intervention in granting the
order of prohibition has not
been met and therefore the
applicant might be said not to
have discharged the burden of
proof o him. See- Attorney
General v Sallah [1970] CC 54.
In the case
before us, based on the
controverted depositions, I am
unable to reach the conclusion
that the words attributed to the
judge were actually uttered by
him from the bench in the course
of the exercise of his
functions. In coming to this
view of the matter, I am not
disregarding the presumption of
regularity which attaches to the
exercise of official acts. In
the course of the hearing, the
applicants deposed to a further
affidavit that made available to
the court the record of the
proceedings of 14 December 2009
at which the learned judge of
the High Court is alleged to
have spoken the words attributed
to him. In my view, the said
record does not portray the
learned judge in the way urged
against him and it being a
document that has been tendered
as it were by the applicant, its
effect is to contradict his
allegations particularly in the
absence of any credible
challenge to the correctness of
the minutes by way of an
affidavit in falsification of
the record. It is interesting to
note that although there was a
lawyer on the record as
representing the applicants
herein (respondents in the
proceedings of 14 December
2009), the applicant has offered
no explanation for not producing
any evidence from him in support
of the very serious allegations
against the trial Judge. In my
view, the said counsel is a
compellable witness and the
failure to call him has the dire
consequence that goes ordinarily
with the failure to call a
material witness by parties.
There is also
the argument by the applicant
that when the processes were
served on the respondent, the
learned judge swore to an
affidavit in answer to the
application by which he
descended into the arena of the
dispute and accordingly has
demonstrated such prejudice that
ought to disentitle him from
continuing to adjudicate in the
matter. In my opinion, the
application is based on the
allegations of 14 December 2009
I open court and consequently
any act subsequent to that date
cannot be legitimately called in
aid by the applicant to sustain
the application. For the
applicant to succeed in the
matter herein, he is limited to
the complaint of that day and
not afterwards. It is observed
that in the course of the
proceedings before us we
directed that the affidavit of
the learned judge be struck out
as it offended against section
65 of the Evidence Act, NRCD 323
that seeks to protect the common
law right of privilege attaching
to judges and adjudicators. In
making the said order regarding
the deposition of the learned
judge we were applying a long
established rule of the common
law that precludes superior
court judges from testifying
about matters that occurred in
the course of the exercise of
their judicial functions. See:
Florence v Lawson (1851) 17 LT
260. Having had the said
deposition that was sworn to in
error by the learned trial judge
struck out, I think that it is
no longer a competent process
that could be relied on by the
applicant to sustain his
application and for this reason
also reject his argument
regarding its effect on the
matter before us for
determination.
[SGD]
S. GBADEGBE J.S.C
JUSTICE OF THE SUPREME COURT
[SGD]
S.
A. BROBBEY
JUSTICE OF THE SUPREME COURT
[SGD]
B. T. ARYEETEY
JUSTICE OF THE SUPREME COURT
COUNSEL
EGBERT
FAIBILLE JNR. FOR THE APPLICANT
ATTA AKYEA
FOR THE RESPONDENT
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