|
Judicial
review - Interlocutory
injunction – Capacity – Breach
of human rights - Whether or not
the plaintiff respondent invoked
the jurisdiction of the High
Court wrongly - Whether or not
the judge
had predetermined the
substantive matter - Whether
or not there is an inclination
of bias - Order 67 - High Court
(Civil Procedure) Rules 2004, CI
47,
HEADNOTES
The court
heard both counsel for the
parties argue for and in
opposition to the legal
objection thus raised. After
arguments from counsel the judge
was alleged to have stated that
‘if he ruled in the
plaintiff/respondent’s favor in
the preliminary matter, he would
go ahead immediately and rule on
the interlocutory injunction
application the
plaintiff, respondent herein,
issued a writ of summons and
statement of claim against the
Ghana Medical Association
(hereinafter called the
applicant), for certain reliefs
and followed it with an
application for interlocutory
injunction restraining the
applicant from embarking on a
strike of any kind. On 1st
November 2011, the judge stated
in court he would like to
determine the matter on its
merits. Subsequently, the
chronology of events was that on
8th November, 2011,
the applicants filed an
affidavit in opposition to the
application for interim
injunction rather belatedly,
whereupon the plaintiff
respondent filed a supplementary
affidavit in response thereto.
Then the applicant filed a
statement of defence in which it
raised a preliminary objection
to the application for
injunction and also challenged
the capacity of the plaintiff
respondent to invoke the
jurisdiction of the High Court
in the matter. he construed the
plaintiff’s substantive claim
before the court to be that it
was to enforce an alleged breach
of human rights; he recited the
procedure for invoking the
jurisdiction of the High Court
under the Human rights
provisions in the constitution,
1992 The Judge compounded the
error by entertaining it. What
he did was not only wrong, but
was also contrary to law.
Furthermore, when the judge said
he would rule on the
interlocutory injunction when
the capacity of the plaintiff
had not been investigated and
established, he evinced an
inclination of bias. Aggrieved
by the above mentioned events,
the applicant issued the writ to
invoke the supervisory
jurisdiction of this court
HELD
Equally, if
under the labor law of the land
it is only the NLC that has the
mandate to settle labor disputes
but the plaintiff did not but
nevertheless went to court, it
ought to bear in mind that the
court undoubtedly has
jurisdiction to hear labor
disputes under its general
jurisdiction in article 140 of
the constitution to hear all
matters, civil or criminal,
labor disputes not excepted,
under the constitution or the
labor law of the land. Whatever
error it might have committed in
the course of proceedings, fell
well within its jurisdiction and
did not bereave or rob it of it.
Accordingly, grounds ‘a’
and ‘b’ of the relief in
the application did not avail
the applicant and are dismissed.
I have said enough to show that
I do not believe the applicant
proved the existence of any real
likelihood of bias to disqualify
the judge from continuing
hearing the matter. It becomes
clear that the application did
not succeed on any of the
grounds upon which it was
predicated. It is dismissed.
STATUTES
REFERRED TO IN JUDGMENT
1992
constitution,
High Court
(Civil Procedure) Rules 2004, CI
47
CASES
REFERRED TO IN JUDGMENT
Republic v
Court of Appeal; ex parte Tsatsu
Tsikata [2005-2006] SCGLR 612
Republic v
High Court, Accra; Ex parte
Commission on Human Rights and
Administrative Justice (Addo
Interested Party) [2003-2004]
SCGLR 312 Republic v High Court,
Accra;
Ex parte
Commission on Human Rights and
Administrative Justice (Addo
Interested Party) [2003-2004]
SCGLR 312
Anisminic Ltd
v Foreign Compensation
Commission [1969] AC 147 at 171
Republic v
Accra Special Circuit Court; Ex
parte Akosah [1978] 2 GLR 212 at
215, CA
Republic v
High Court, Accra; Ex parte
Industrialization Fund for
Developing Countries and another
[2003-2004] SCGLR 348
In Re
Appenteng (Decd); Republic v
High Court, Accra; Ex parte
Appenteng and another
[2005-2006] SCGLR 18,
Republic v
Akim Abuakwa Traditional
Council; ex parte Sakyiraa II
[1977] 2 GLR 115 at 126-127
Republic v
High Court, Kumasi; ex parte
Mobil Oil, (Ghana) Ltd, (Hagan
interested party), [2005-06]
SCGLR 312
Attorney
–General v Sallah 2 G and G, 487
Amponsah v
Minister of Defence [1960] GLR
140 at 141
Boakye v
Tutuyehene [2007-2008] SCGLR 970
Republic v
High Court, Accra; ex parte
Allgate Co, Ltd (Amalgamated
Bank Ltd, interested party)
[2007-2008] SCGLR 1041;
Republic v
High Court, Koforidua, ex parte
Ansah-Otu. & another Koans
Building Solutions
Ltd,(interested party) [2009]
SCGLR 141
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
ANSAH JSC.
COUNSEL
NENE
AMEGATCHER (WITH HIM DOMINIC
BRENYA-OTCHERE) FOR THE
APPLICANT.
DAVID ANNAN
FOR THE INTERESTED PARTY.
______________________________________________________________________
RULING
______________________________________________________________________
ANSAH JSC.
This is an
application by the Ghana Medical
Association for
judicial
review of the decision of
the High Court, Accra, presided
over by His Lordship Mr. Justice
Dzakpasu, to prevent him from
proceeding with the ruling on
the
interlocutory injunction and
the substantive matter pending
before it intituled: ‘Chris
Archman-Akumey v Ghana Medical
Association & others’. In other
words, the application is
seeking an order to prohibit the
aforementioned judge from ruling
on an application for an order
of interim injunction and
hearing the substantive matter
in the suit before him.
The affidavit
stating the facts and background
of the application:
The facts
grounding the application are
contained in the supporting
affidavit filed on 8-12-2011. In
it, the applicant deposed that
on 24 October 2011,
the
plaintiff, respondent herein,
issued a writ of summons and
statement of claim against the
Ghana Medical Association
(hereinafter called the
applicant), for certain reliefs
and followed it with an
application for interlocutory
injunction restraining the
applicant from embarking on a
strike of any kind. On 1st
November 2011, the judge stated
in court he would like to
determine the matter on its
merits.
Subsequently, the chronology of
events was that on 8th
November, 2011, the applicants
filed an affidavit in opposition
to the application for interim
injunction rather belatedly,
whereupon the plaintiff
respondent filed a supplementary
affidavit in response thereto.
Then the applicant filed a
statement of defence in which it
raised a preliminary objection
to the application for
injunction and also challenged
the capacity of the plaintiff
respondent to invoke the
jurisdiction of the High Court
in the matter.
The court
heard both counsel for the
parties argue for and in
opposition to the legal
objection thus raised. After
arguments from counsel the judge
was alleged to have stated that
‘if he ruled in the
plaintiff/respondent’s favor in
the preliminary matter, he would
go ahead immediately and rule on
the interlocutory injunction
application.’
He then adjourned proceedings to
9th December 2011 for
his ruling.
The applicant
deposed further in his
affidavit,
he
construed the plaintiff’s
substantive claim before the
court to be that it was to
enforce an alleged breach of
human rights; he recited the
procedure for invoking the
jurisdiction of the High Court
under the Human rights
provisions in the constitution,
1992, in the affidavit in
support of application for the
injunction. The applicant took
the view that by issuing a writ
of summons supported with a
statement of claim purporting to
invoke such jurisdiction,
the
plaintiff respondent invoked the
jurisdiction of the High Court
wrongly.
The Judge
compounded the error by
entertaining it. What he did was
not only wrong, but was also
contrary to law.
Furthermore,
when the judge said he would
rule on the interlocutory
injunction when the capacity of
the plaintiff had not been
investigated and established, he
evinced an inclination of bias.
The
deposition in the ultimate
paragraph 21 of the affidavit
encapsulated the crux of the
affidavit in support and
therefore bears quotation in
extenso. It was that:
“21. That the
applicants pray that in the
interest of justice, smooth,
orderly and proper
administration of justice, that
this Honorable Court prohibits
the learned High Court Judge,
Mr. Justice Dzakpasu from
continuing hearing the matter
for the fact that the High
Court’s jurisdiction has not
been properly invoked by the
Respondent and further that by
making such statements in open
court, the learned judge has
exhibited an open bias against
the applicants.”
Grounds on
which relief is sought:
Aggrieved by
the above mentioned events, the
applicant issued the writ to
invoke the supervisory
jurisdiction of this court
and stated the grounds for the
application to be as follow:
“(a). Since
the High Court’s jurisdiction in
Human Right matter can be
properly be invoked by an
application in the form of a
Motion supported by an affidavit
copies of which ought to be
served on the Attorney General,
stating the full name and
address of the applicant, the
facts upon which he relies, the
relief and remedy sought and the
grounds for seeking the remedy
and since the Respondent in this
application purported to enforce
an alleged
breach of
human rights by a writ, the
High Court’s jurisdiction has
not been legally and
procedurally been (sic) invoked
to enable the learned High Court
judge hear and rule on the
interlocutory and substantive
Claim.
(b). Since
Labor disputes occur between the
employer and the employee and
since in matters relating to
Labor disputes affecting the
Essential Services the law
mandates the National Labor
Commission to deal with the
dispute with power to invoke the
jurisdiction of the High Court
to compel a party to a Labor
dispute to comply with its
direction or order, the
Respondent in this case not
being the National Labor
Commission, or acting under the
Commission’s authority, could
not legally invoke the
jurisdiction of the High Court
to deal with the labor dispute
involving the applicant and its
employers and by issuing a writ
to that effect at the High Court
has wrongly invoked the Courts
jurisdiction.
(c). The
Learned Judge’s statements on 1st
of November 2011 that he would
want to deal with the matter on
its merits and on 15th
November 2011, immediately after
the arguments for the
preliminary objection had been
heard that he would rule on the
interlocutory injunction if he
concluded that the Respondent
had capacity, evince an
inclination of bias and
therefore disqualified him from
continuing to hear this case.”
Statement of
case by the applicants:
After stating
the background facts and grounds
for the application, the
applicant submitted in his
statement of case filed in
support of his case, that the
judge had predetermined the
substantive matter and so the
applicant would not receive a
fair hearing at the trial or
come out with an unbiased
decision at the end if he was
allowed to continue with the
matter; the submissions on this
point, as per the statement of
case filed on behalf of the
applicant, was that:
“16. The
applicants contend that the
pronouncements by the learned
judge only evince an indication
that the matter has been
predetermined and would not
receive a fair, unbiased
decision during the trial if the
learned trial judge is allowed
to continue with the matter.”
Defendant’s/Interested party’s
affidavit in opposition to the
application:
As was to be
expected, the interested party
opposed the application. The
grounds therefore are summarized
in several paragraphs of the
affidavit in opposition and I
most respectfully quote only
some of the salient ones
verbatim. They are:
“2 That this
application is premature since
the trial court has not given
any ruling on my application for
injunction, or on the
preliminary objection raised by
the applicants.
6 That since
the ruling has not been given,
there is no way the Applicant
can show the ruling was in my
favor or what the decision would
be.
8. That this
application is therefore brought
mala fides and is an attempt to
avoid a ruling in an application
sponsored by Applicants
themselves.
9 That ground
(a) of the present motion is
untenable since Applicants seek
to determine how the interested
party must present his case and
in any case is misconceived
because even if the
Plaintiff/respondent /interested
party’s case was purely a human
rights matter, the proper
initiation was by a writ and
Statement of claim.
10 That order
2 rule 2 of the High Court
(Civil Procedure) Rules, 2004,
CI 47, requires all Civil
Proceedings shall be commenced
by Writ of Summons, which is
what Respondent did.
17 That my
Writ in the High Court does not
seek to determine the labor
dispute between the Fair Wages
and Salaries Commission and
Applicants as to the proper
level the Applicants must be
placed on the Single Spine
Salary Structure to warrant
Applicants demand that only the
Labor Commission can initiate an
action based on the Labor Act,
Act 651.
18. That the
position of applicants is not
even supported by law or
practice since this Honorable
Court has dealt with action
instituted by parties who are
not the National Labor
Commission, and since the Labor
Court, Past Trade Division has
severally dealt with actions not
instituted by the National Labor
Commission but by other
individuals and companies.
20. That
again I have not sought to “……
deal with the Labor dispute
….”, but to rely on an event
which is clearly against statute
which has no bearing on the
Labor dispute but which is
tangential to the Labor dispute
since going on strike is not an
ingredient of the dispute, which
is about Pay or Salary levels,
but rather is an external tool
wrongly employed as a coercive
adjunct to the real issues in
controversy between Applicants,
(and) the Fair Wages Commission.
21. That
therefore paragraphs 13 and 14
of the Affidavit in Support are
erroneous to the extent that the
proper person to enforce the
provision of the Labor Act 2003,
(Act 651), is only and solely
the National Labor Commission or
that the National Labor
Commission (the NLC) has made
any orders or directives before
or at the time of instituting
the action in the Court a quo.
22 That
NOWHERE in Act 651 has
EXCLUSIVITY been given the NLC
regarding actions based on Act
651 to argue to the contrary
presumes that this Honorable
court was wrong in deciding
several appeals brought by
individuals and organizations
other than the NLC concerning
the provisions of Act 651.
25 That
paragraphs 18 and 19 of the
supporting affidavit seek to
determine how I should initiate
my action and that declarations
cannot be procured by Motion and
that even though I have cited
some Article 12 and 21 right,
other clauses in the 1992
constitution have been cited, as
well as statute so I elected not
to sue under Article 33
simpliciter, and
Order 67
of the High Court (Civil
Procedure) Rules 2004, CI 47,
but order 2 of CI 47.
26 That
paragraph 20 is misconceived as
the grounds for imputing bias on
the part of the Trial Court are
untenable because a statement
that a decision on the
preliminary objection will
precede a decision on the motion
for injunction in tandem is the
common sense, speedy and
appropriate manner to dispose of
the applications before the
trial court.
29 That
applicant’s paragraph 21 of the
supporting affidavit is utterly
untenable because bias is a wall
(sic) area of law replete with
precedents and authorities on
its ingredients and constituents
and I humbly believe the present
grounds based on the award of
costs and a single statement as
to how the Court would deliver
its yet undelivered rulings do
not qualify as sufficient to
ground this application.
31. That
paragraph 14 of the applicant’s
statement of case and ground ‘c’
of the present motion are
incorrect as the trial judge
never said he would rule on the
matter if he concluded the
plaintiff had capacity which
statement is even logical but
said he would rule on the
injunction after he had given
his ruling on the objection.”
In the
concluding paragraphs of his
affidavit in opposition, the
respondent deposed that the
authorities cited by the
applicant did not support his
case, the application was
misconceived, untenable,
misdirected and geared only
towards having the case
transferred from the judge by
employing the wrong method.
Finally, he prayed that the
application be dismissed.
In view of
the opposition mounted by the
respondent to the application
summarized above, I will
consider the law on the issues
raised by the submissions in the
respective statement of cases by
the parties herein and test each
ground proferred for the
application with it. Towards
this end I need remind myself
that this court ought to stand
by its earlier statement in
Republic
v Court of Appeal; ex parte
Tsatsu Tsikata [2005-2006] SCGLR
612 that:
“The clear
thinking of this court is that,
our supervisory jurisdiction
under article 132 of the 1992
constitution, should be
exercised only in those
manifestly plain and obvious
cases, where there are patent
errors of law on the face of the
record, which errors either go
to jurisdiction or are so plain
as to make the impugned decision
a complete nullity. It stands to
reason then that the error(s) of
law as alleged must be
fundamental, substantial,
material, grave or so serious as
to go to the root of the matter.
A minor, trifling,
inconsequential or unimportant
error which does not go to the
core or root of the decision
complained of; or, stated
differently, on which the
decision does not turn would not
attract the courts supervisory
jurisdiction.” Per Georgina Wood
JSC (as she then was, at page
619 of the
report).
Where an
applicant invokes the
supervisory jurisdiction of this
court for the judicial review of
a decision of the High Court to
proceed with a ruling on a
motion and the substantive
matter pending before it, he
seeks to prevent the judge from
further hearing the suit: that
is to say, he seeks a
prohibiting order or an order to
a lower court not to carry out
an ‘ultra vires’ act by which is
meant hearing a case outside its
jurisdiction; in other words, an
order of prohibition issues to
prevent a court or tribunal from
exceeding or continuing to
exceed its jurisdiction or
infringing the rules of natural
justice. Thus, the grounds upon
which this court proceeds to
grant application of this
nature, following the
authorities are:
1.
want or excesses of
jurisdiction;
2.
where there is an error of law
on the face of the record;
3.
failure to comply with the rules
of natural justice; and
4. the
Wednesbury principle.
It goes
without saying that the instant
application was grounded on the
first two of the above grounds,
namely, ‘want of or excesses of
jurisdiction’ and secondly,
‘error of law on the face of the
record’; these may be examined
in detail below to see how far
the applicant succeeded in this
application.
There is a
plethora of authorities
specifying the scope and grounds
upon which the discretionary
order of prohibition would be
granted by our courts. Amongst
them are
Republic v High Court, Accra; Ex
parte Commission on Human Rights
and Administrative Justice (Addo
Interested Party) [2003-2004]
SCGLR 312; In ex parte CHRAJ
(supra), this court speaking
through the legal luminary, Dr.
Date-Bah JSC, re-stated the law
governing the exercise of
judicial review as appeared in
holdings 4 and 5 at pages
316-317 of the report which I
respectfully reproduce
hereunder, that:
“….Where the
High Court (or for that matter
the Court of Appeal) has made a
non-jurisdictional error of law,
which was not patent on the face
of the record, (and by the
‘record’ was meant the document
which initiated the proceedings,
if any, and the adjudication but
not the evidence nor the reasons
unless the tribunal chose to
incorporate them), the avenue
for open to an aggrieved party
was an appeal, not judicial
review. Therefore certiorari (or
prohibition) would not lie to
quash errors of law which were
not patent on the face of the
record and which had been made
by a superior court judge who
was properly seised of the
matter before him or her. In
that regard, an error of law
made by the High Court or the
Court of Appeal, would not be
regarded as taking the judge
outside the courts jurisdiction,
unless, the court had acted
ultra vires the Constitution or
an express statutory restriction
validly imposed on it.
Anisminic
Ltd v Foreign Compensation
Commission [1969] AC 147 at 171;
not followed; Dictum of Sowah
JA, (as he then was) in
Republic
v Accra Special Circuit Court;
Ex parte Akosah [1978] 2 GLR 212
at 215, CA approved…..
5 Prohibition
would lie to prevent a court
from exercising its jurisdiction
or reaching a decision which
could be quashed subsequently by
certiorari…”
In
Republic
v High Court, Accra; Ex parte
Industrialization Fund for
Developing Countries and another
[2003-2004] SCGLR 348, this
court held that certiorari (or
prohibition) was a discretionary
remedy which would issue to
correct a clear error of law on
the face of the ruling of the
court. In the case of an error
not apparent on the face of the
record, the avenue for redress
is by way of an appeal.
Bamford-Addo
JSC held in that case that when
the High Court, a Superior
Court, is acting within its
jurisdiction, its erroneous
decision is normally corrected
on appeal whether the error is
one of fact or law. She noted
the distinction between
certiorari (prohibition
included) and appeal, which was
often lost on litigants and
their counsel and further that
certiorari is a discretionary
remedy which would issue to
correct a clear error of law on
the face of the ruling of the
court; or an error which amounts
to a lack of jurisdiction in the
court so as to make its decision
a nullity.
As is well
known, the difference between
certiorari and prohibition is
only that whereas certiorari
looks to remedy past errors,
prohibition looks to the future
to prevent what will be done
from being done. What goes on
for the former equally applies
to the latter. The authorities
make it also clear that it is
not just any error that has the
effect of ousting a court of
jurisdiction, but that for an
error to have any such effect it
ought to be basic and
fundamental.
In
Re Appenteng (Decd); Republic v
High Court, Accra; Ex parte
Appenteng and another
[2005-2006] SCGLR 18, was a
case where two of the three
executors named in a will
applied for an order of
prohibition against the
continued exercise of
jurisdiction by a High Court
judge, Accra, in respect of an
aspect of the administration of
the estate of the deceased
testator; this court held that
the rules on the scope of the
order of prohibition are that:
(a)
prohibition is not meant to
prevent a person or a court from
exercising general judicial
functions; (b) it is rather to
challenge an attempted exercise
of the judicial function in
specific jurisdictional
situations, ie, for excess or
absence of jurisdiction or
departure from the rules of
natural justice such as the
existence of actual bias or
strong likelihood of bias or
interest; and (c) an applicant
for prohibition or certiorari is
not restricted by notion of
locus standi, ie he does not
have to show that some legal
right of his is at stake……”
In ex parte
Appenteng (supra), the late Prof
Ocran JSC upheld the rules on
prohibition and applied them to
the facts of the case, in
particular that the High Court
has jurisdiction under the
Public Trustees Ordinance, 1952,
to appoint the Public Trustee to
manage the estate or trust.
Also, the basic jurisdiction to
remove executors and appoint a
public trustee under the 1952
Ordinance lay in a High Court,
so there had been no usurpation
of jurisdiction that would cause
the court to issue a prohibition
against the suit before the
judge or court. The application
for prohibition therefore
failed.
Bias, actual
or a real likelihood thereof, is
a good ground for the grant of
prohibition against a judge. In
this case, the interested party
denied the imputation of bias
because what the trial judge did
was in consonance with the
common-sensical, speedy and
appropriate manner to dispose of
the application before the court
and that at any rate, the court
did not say what the applicant
alleged he did.
Where is the
evidence on what the court said
in this case?
That was oral and was not
contained in a written decision,
ruling or order. However, the
law is settled that an oral
decision is amenable to judicial
review, provided there was an
error of principle in it: see
Republic
v Akim Abuakwa Traditional
Council; ex parte Sakyiraa II
[1977] 2 GLR 115 at 126-127.
The basic
issue in this case is whether or
not the applicant is entitled to
the order sought from this
court? The subsidiary issue upon
whose success or otherwise this
issue depends is: was there
proof of bias alleged against
the learned judge; did the court
lack or exceed its jurisdiction
to hear the
matter?
In
Republic
v High Court, Kumasi; ex parte
Mobil Oil, (Ghana) Ltd, (Hagan
interested party), [2005-06]
SCGLR 312, the conditions
for the grant of prohibition on
grounds of real likelihood of
bias was considered in great
detail by this court.
The
condensed facts of that case
were that in the course of
hearing the suit before him, the
judge ignored a breach of
agreement between the parties
and ordered the applicant to
continue to supply products to
the Pine Avenue Service Station.
He was further alleged to have
showed a clear inclination to
support the interested party to
the application, and also to
have pre-determined the
declaration which the plaintiff
to the action had sought on his
writ of summons for an order of
interim injunction. This court
said that even though the
comments might seem to have been
obiter, they were rash and
amounted to breaches of the
rules of natural justice. Under
those circumstances, this court
was of the view that it would be
impossible for the judge to
bring a completely impartial
mind to bear upon the trial of
the substantive matter. This
court clinched the deal when it
said:
“The
authorities are clear. The
common law disqualifies a judge,
magistrate or an independent
administrator from adjudicating
whenever circumstances point to
a real likelihood of bias, by
which is meant ‘an operative
prejudice whether conscious or
unconscious’ in relation to a
party or an issue before him.
This applies in particular,
where the circumstances point to
a situation where a decision may
be affected by pre-conceived
views”;
see the
opinion by Dr Twum JSC at page
327 of the report.
In
Attorney
–General v Sallah 2 G and G, 487,
the Court of Appeal then sitting
as the Supreme Court, said at
page 488 of the report that:
“What then is
the law on disqualification on
the ground of bias? We think
that bias in a judge
disqualifies him from
adjudicating upon a case. And in
this regard the law recognizes
not only actual bias as a
disqualifying factor but a
likelihood of bias as well. The
objection in this case is not
based on actual bias and indeed
the learned Attorney-General was
at pains to point out that
nobody has said that the judges
involved were in fact biased.
His case is that from the facts
before the court, it ought to
hold that there is a likelihood
of bias. In determining the
question of bias, the courts
have held that pecuniary or
proprietary interest, however
small in the subject matter of
the dispute, disqualifies a
judge.”
We do not
have any such allegation in this
case. The quotation continues at
page 489 that:
“Interest,
other than interest of a direct
pecuniary or proprietary nature
which gives rise to a real
likelihood of bias, will
disqualify a judge.”
Much earlier,
the Court of Appeal had held in
Amponsah
v Minister of Defence [1960] GLR
140 at 141, where Korsah CJ
said that:
“To justify
an allegation of interest or
bias against a judicial officer,
it must be established that he
in fact has some interest in the
subject-matter, or has such
foreknowledge of the facts as to
make it impossible for him to
adjudicate upon the matter with
an independent mind and without
any inclination or bias toward
one side or other in the
dispute.”
It becomes
reasonable to hold then that,
apart from direct pecuniary or
proprietary interest where bias
will be presumed to disqualify a
judge, a likelihood of bias is
enough to have the same effect.
Where a judge makes prejudicial
statements in the course of
hearing a case, he opens himself
to allegations of a real
likelihood of bias, which will
disqualify him from continuing
sitting on the particular case.
The reason is that if by his
prejudicial statements he had
predetermined all issues at
stake, what is left for him to
decide for which reason he
should continue the hearing?
The
categories of grounds for making
such allegations are neither
closed nor exhausted. Each case
will depend upon its own
peculiar facts.
In his
statement of case filed in
support of the application, the
applicant submitted that the
judge showed by his
pronouncements that the matter
had been predetermined and so
the applicant would not receive
a fair hearing during the trial
or come out with an unbiased
decision at the end if he was
allowed to continue with the
matter; the submissions on this
point were predicated on the
submissions in the statement of
case that:
“16. The
applicants contend that the
pronouncements by the learned
judge only evince an indication
that the matter has been
predetermined and would not
receive a fair unbiased decision
during the trial if the learned
trial judge is allowed to
continue with the matter.”
The applicant
left no doubt that this was the
basis of his application to
invoke the supervisory
jurisdiction of this court
specifically to prohibit the
judge from proceeding further in
the case. It was upon this basis
that the applicant invites this
court to say the High Court in
this case lacked jurisdiction to
hear the matter before it so he
ought to be prohibited from
continuing to sit on it.
The applicant
herein expatiated more on this
when he deposed further in
paragraph 17 of his supporting
affidavit, filed on 8-12-2011,
that:
“17. That His
Lordship Dzakpasu adjourned the
matter to 9th
December 2011 for ruling but
before the adjournment also
stated in open court that if he
ruled in the
Plaintiff/Respondent’s favor in
the preliminary matter, he would
go ahead immediately and rule on
the interlocutory Injunction
Application.”
That same day
when the applicant filed his
statement of case, he added more
to this when he submitted in
writing that:
“14 After the
legal arguments in support of
the legality to invoke the
jurisdiction of the High Court
and the fact that the matter had
become moot, the learned judge
stated in open court that he
would rule on the injunction
application immediately if, he
concluded that the Plaintiff had
capacity and hence the court had
jurisdiction to hear the
matter.”
The
interested party wholly
disagrees with this submission;
he deposed that the judge never
said he would go ahead
immediately and rule on the
interlocutory injunction, but
rather that he would rule on the
injunction after he had given
his ruling on the preliminary
objection. To the interested
party that was the right and
normal thing to do since the
motion for injunction could not
be left hanging.
One thing
that stands out clearly from the
respective submissions on this
point was that the judge did not
make any positive statement that
he had ruled in favor of or
against the preliminary
objection. He did not say
whether the plaintiff/interested
party had the capacity to mount
the action or not. He was
non-committal and only expressed
what he would do - in the event
of a certain situation. Implied
in what he was alleged to have
said was that if the judge did
not rule in favor of the
preliminary objection, then, he
would have no need to continue
with the hearing as in that
eventuality, the plaintiff did
not have capacity to mount the
action; he would still have to
rule on the interlocutory
injunction application for the
interlocutory injunction. What
then was he alleged to have said
or decided? Nothing express or
positive; at its highest the
judge only expressed what he
would do if a condition was
fulfilled; that was a far cry
from what the trial judge in the
Ex Parte Mobil Oil Ghana Limited
(supra) did. Perhaps the
applicant should have waited for
the judge to commit himself – to
see if he would say anything
that could be used against him.
The applicant did not – or
waited in vain. What he had from
the judge was not enough to
provide the fulcrum from which
to launch an attack for bias
against the judge; in effect
then the applicant failed in my
opinion to make a case of a real
likelihood of bias against the
judge for which he should be
prohibited from continuing
sitting on the case because he
thereby vitiated or lost the
jurisdiction he initially had to
hear and determine the matter
before him.
It was
appropriate for judges or
arbitrators to be taken on for
words they utter expressly in
court or in their decisions,
more than impressions taken of
what they did say.
It must be
stated plainly that it is not
unusual for a court to state a
chronological order of what it
would do at a point to be
followed by another in the
course of proceedings; if that
was done it might well be a case
management style more than
predetermining issues in the
proceedings.
The
imputation or inference of a
likelihood of bias in the
circumstances did not avail the
applicant; there was no proof of
a real likelihood of bias made
against the trial judge in this
case;
In the
result, ground ‘c’ of the
grounds for the reliefs sought
fails and is dismissed.
What about
ground ‘a’ quoted above?
The substance of that ground was
to fault the
plaintiff/respondent on his
choice of the form to commence
proceedings in this matter. The
applicant submitted that in so
far as the plaintiff’s action
was in fact and in truth a human
rights action, he should have
commenced the proceedings by a
motion and not a writ of summons
and a statement of claim as he
did. By resorting to the writ of
summons procedure in this
matter, the plaintiff erred
egregiously; the High Court
compounded the error by
entertaining the action.
Order 2 rule
2 of the High Court Civil
Procedure Rules 2004 CI 47
states that:
“subject to
any existing enactment to the
contrary, all Civil Proceedings
shall be commenced by the
filling of a writ of summons.”
Counsel for
the respondent submitted to the
contrary that Order 67 of CI 47
prescribed the procedure under
Article 33 of the Constitution,
1992, when it provided that:
“1.
Application for redress under
article 33 of the Constitution
A person who
seeks redress in respect of the
enforcement of any fundamental
Human Rights in relation to the
person under Art. 33(1) of the
Constitution, shall submit an
application to the High Court.
2 Mode of
submission of application
(1) The
application shall be made to the
court by motion supported by an
affidavit signed by the
applicant’s lawyer and shall
contain the following
particulars:
(a) the
full name and address for
service of the applicant and the
lawyer of the applicant;
(b) the
facts upon which the applicant
relies;
(c) the
relief or remedy sought by the
applicant and the grounds on
which the applicant seeks the
relief or remedy; and
(d) the
full name and address for
service of any person directly
affected by the application.
(2) A copy of
the application shall be served
on the Attorney-General and such
other persons as the Court may
direct.”
The above
rules in CI 47 state
categorically that the
enforcement of the fundamental
human rights under Article 33 of
the constitution is by way of a
motion supported by an affidavit
whose contents are also provided
for under the rules. The order
does not mention a writ at all
in connection herewith, and
therefore according to the
submissions, the applicant may
appear to have misconceived the
point when he submitted that the
plaintiff/respondent should have
commenced proceedings in the
High Court by a writ of summons
as provided for under Order 2
rule (2) of CI 47.
I do not
think it will serve any good
purpose for me to decide which
submission was right or wrong,
i.e whether or not the writ
procedure was more correct to
commence the proceedings in
question. The important
consideration is assuming the
judge erred in not condemning
the procedure adopted in
commencing the proceedings, what
was the effect of such error of
law. The fact was that the High
Court had jurisdiction to hear
and determine the matter before
it, to wit, the labor dispute
between an employer and his
employees. If he erred in
hearing any aspect of this
matter, that did not erode or
eat away its jurisdiction or let
him exceed it.
At any rate,
Order 81 of CI 47 A stated that
failure to comply with the
requirements of these rules in a
manner as to form, manner, place
or time shall be treated as an
irregularity and shall not
nullify the proceedings. Of and
concerning Order 81 of CI 47,
Dr. Twum JSC held in
Boakye v
Tutuyehene [2007-2008] SCGLR 970
that
“The new
Order 81 has made it clear that
perhaps apart from lack of
jurisdiction in its true and
strict sense, any other wrong
step taken in any legal suit
should not have the effect of
nullifying the judgment or the
proceedings.”
see also
Republic
v High Court, Accra; ex parte
Allgate Co, Ltd (Amalgamated
Bank Ltd, interested party)
[2007-2008] SCGLR 1041;
Republic v High Court,
Koforidua, ex parte Ansah-Otu. &
another Koans Building Solutions
Ltd,(interested party) [2009]
SCGLR 141 and the recent
cases named therein.
Equally, if
under the labor law of the land
it is only the NLC that has the
mandate to settle labor disputes
but the plaintiff did not but
nevertheless went to court, it
ought to bear in mind that the
court undoubtedly has
jurisdiction to hear labor
disputes under its general
jurisdiction in article 140 of
the constitution to hear all
matters, civil or criminal,
labor disputes not excepted,
under the constitution or the
labor law of the land. Whatever
error it might have committed in
the course of proceedings, fell
well within its jurisdiction and
did not bereave or rob it of it.
Accordingly,
grounds ‘a’ and ‘b’
of the relief in the application
did not avail the applicant and
are dismissed.
I have said
enough to show that I do not
believe the applicant proved the
existence of any real likelihood
of bias to disqualify the judge
from continuing hearing the
matter.
It becomes
clear that the application did
not succeed on any of the
grounds upon which it was
predicated. It is dismissed.
The trial
judge is motioned to proceed to
deliver any outstanding matter
and to continue the hearing of
the matter before
him.
(SGD) J. ANSAH
JUSTICE OF THE SUPREME COURT
(SGD)
DR. DATE-BAH
JUSTICE OF THE SUPREME COURT
(SGD)
J. V. M. DOTSE
JUSTICE OF THE SUPREME COURT
(SGD)
P. BAFFOE BONNIE
JUSTICE OF THE SUPREME COURT
(SGD)
V. AKOTO BAMFO (MRS)
JUSTICE
OF THE SUPREME COURT
COUNSEL.
NENE
AMEGATCHER (WITH HIM DOMINIC
BRENYA-OTCHERE) FOR THE
APPLICANT.
DAVID ANNAN
FOR THE INTERESTED PARTY
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