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Property - 1992 Constitution -
Article 132 - Order for
prohibition - likelihood of
bias - order setting aside the
default judgment - Whether or
not the demolition of two
storey buildings at Ofankor/Kplangonnno
wasis unlawful -
HEADNOTES
On the 27th November
2014, the 3rd
defendant petitioned the office
of Her Ladyship the Chief
Justice requesting that Her
Ladyship Justice Naa Adoley Azu
be stopped from hearing the
matter and remitting the matter
back to Court 8 for hearing by
the presiding judge; Her
Ladyship the Chief Justice
however responded by a letter
dated the 3rd
November 2014 refusing the
petition and advising
co-operation with the court for
an expeditious and early
disposal of the matter; The
letter refusing the petition was
signed by the First Deputy
Judicial Secretary for the
Judicial Secretary and the
letter indicated that it had
attached to it the order of
transfer under the signature of
Her Ladyship the Chief Justice
herself; however, the attachment
was not with the letter and
therefore under the
circumstances the 3rd
defendants’ representative went
to the Office of the Judicial
Secretary on several dates and
times to get it but never got it
to date; however a hearing
notice for the matter dated the
16th December, 2014,
was served on the 3rd
defendant on the 19th
December 2014; however, hearing
did not take place on that date
and the matter was adjourned to
the 9th January 2015;
the matter was then adjourned
for continuation of the hearing
on the 16th January
2015.
HELD :-
In our view what the judge said
was not of any sufficient weight
to establish any proof on the
balance of probabilities that,
there was a real likelihood of
bias on her part for or against
any of the parties before her.
She obviously did not make any
definitive pronouncement on the
merits of the suit before her
awaiting hearing on its merits
or anything having a semblance
of a prejudgment or
predetermination of the issues
before her or at all, which
would be enough to invoke our
supervisory jurisdiction to
prohibit her from proceeding
further to hear and determine
the issues raised in the suit
(before her).
It was for all these reasons
that we unanimously dismissed
the application to invoke our
supervisory jurisdiction in the
matter to prohibit the judge
from hearing the matter before
her.
STATUTES REFERRED TO IN JUDGMENT
1992 Constitution,
CASES REFERRED TO IN JUDGMENT
Amadu v Mohammed [2007-2008]
SCGLR 58 at 59.
BOOKS REFERRED TO IN JUDGMENT
Black’s Law Dictionary, 8th
Edition
Republic v High Court, Denu; Ex
parte Agbesi Awusu II (No 2)
(Nyonyo Agboada (Sri III)
(interested party) [2003-2004]
SCGLR 907
Republic v High Court, Accra, ex
parte Commission on Human Rights
and Administrative Justice (Addo
interested party) [2003-2004]
312
Republic v High Court, Kumasi;
ex parte Mobil Oil (Ghana) Ltd
Hagan (interested party)
[2005-2006] SCGLR 312
The Republic v High Court
Sekondi, ex parte Mensah and
others 1994-95 GBR
Nana Yeboa-Kodie Asare II & 1
or. v Nana Kwaku Addai & 7 ors
unreported, Rev. Motion
J7/20/2014, Supreme Court, dated
12/02/2015.
R v Gough 1993 AC 646
In re Medicaments and related
classes of Goods (No. 2) (2001)
TLR 84
DELIVERING THE LEADING JUDGMENT
ANSAH JSC:
COUNSEL
THEOPHILUS CUDJOE ESQ. FOR
THE APPLICANT.
THERESA BOADU ESQ. FOR THE
INTERESTED PARTY
-------------------------------------------------------------------------------------------------------------
RULING
-------------------------------------------------------------------------------------------------------------
ANSAH JSC:
On 17-03-15 this court
unanimously dismissed an
application by the applicant an
order from this court to issue a
prohibition order against the
trial judge to restrain her from
proceeding to hear a matter
before her; we intimated to give
our reasons for our ruling
later. We hereby proceed to do
so now.
Pursuant to the provisions of
article 132 of the 1992
Constitution, the applicant
herein moved this court for an
order for prohibition directed
at the High Court, Court 23,
Accra, presided over by Her
Ladyship Mrs. Justice Naa Adoley
Azu, prohibiting her from
proceeding to hear the case
entitled A.G. Boadu v The
Registrar, High Court &
others, suit numbered BMISC
501/2014, pending before her.
The grounds of the application
as revealed by the motion paper
are that:
1.“There is a real likelihood of
bias on the part of Her Ladyship
Mrs. Justice Naa Adoley Azu
against the case of the
defendants, as shown by various
statements of Her Ladyship the
presiding judge even before the
commencement of the hearing of
the case proper indicating
strongly that the defendants
will not get a fair trial.
2. On the 27th
November 2014, the 3rd
defendant petitioned the office
of Her Ladyship the Chief
Justice requesting that Her
Ladyship Justice Naa Adoley Azu
be stopped from hearing the
matter and remitting the matter
back to Court 8 for hearing by
the presiding judge; Her
Ladyship the Chief Justice
however responded by a letter
dated the 3rd
November 2014 refusing the
petition and advising
co-operation with the court for
an expeditious and early
disposal of the matter;
3. The letter refusing the
petition was signed by the First
Deputy Judicial Secretary for
the Judicial Secretary and the
letter indicated that it had
attached to it the order of
transfer under the signature of
Her Ladyship the Chief Justice
herself; however, the attachment
was not with the letter and
therefore under the
circumstances the 3rd
defendants’ representative went
to the Office of the Judicial
Secretary on several dates and
times to get it but never got it
to date; however a hearing
notice for the matter dated the
16th December, 2014,
was served on the 3rd
defendant on the 19th
December 2014; however, hearing
did not take place on that date
and the matter was adjourned to
the 9th January 2015;
the matter was then adjourned
for continuation of the hearing
on the 16th January
2015.”
The facts that led to the
institution of the present
application, as revealed in the
supporting affidavit, were that
the interested party herein
instituted an action per his
writ of summons entitled in suit
number Number BMISC 506/2014,
entitled AG Boadu v 1) The
Registrar, High Court; 2) The
Deputy Sheriff, High
Court, Accra; 3) Daniel Ashie
Kotei, for the reliefs that:
(i) Plaintiff claims against the
defendants jointly and severally
a declaration that the
demolition of his (2) two storey
buildings at Ofankor/Kplangonnno
also known as the firing range
is unlawful.
(ii) General damages for
unlawful destruction of
plaintiffs property.
(iii) Special damages.
(iv)Perpetual injunction
retraining the defendants their
agents, servants and assigns,
from interfering with plaintiffs
houses at Ofankor/Kplangonoo
also known as the firing range.
(v) An order setting aside the
default judgment of 31st
day of January 1996 in the case
of Nii Olai Amontia v Lands
Commission & another Suit No: L
776/95.
The facts surrounding the
application further allege that
as per Exhibit ‘DAK5’, counsel
for the 3rd defendant
applied for an order of the
court that the documents of
title to the lands of both
parties be produced to be
superimposed because the
demolished buildings were in the
boundary area which had been
adjudged to belong to the 3rd
defendant’s family. The
plaintiff resisted the
application.
The court ruled that due to the
nature of the subject matter of
the issues in dispute, the
application ought to be refused.
However, the court in a
volte-face, “further ordered
the parties to submit their
plans for the purpose of the
preparation of a composite plan
to determine the boundaries of
the lands in question”; however,
it added that:
“The court further orders that
the parties file and exchange
the documents that they intend
to rely on for the trial. The
court will be minded to keep
relief 6 in mind at the time of
writing judgment. The parties
are to file and submit their
building plans with their site
plans attached for the creation
of a composite
plan.”
Counsel for the applicants
opined that on their face value,
these statements would appear to
be harmless but when assessed
with a measure of judicial
jurisprudence, would raise
doubts as to the fairness and
impartiality of the judge who
made them in the course of the
trial before her. This was
because they revealed a leaning
of the judge towards one of the
parties to the suit. Counsel
wondered how a court would order
a building plan to be added to a
site plan for a superimposition
when the 3rd
defendant had no demolished
buildings in the area in
dispute.
Counsel for the applicant
submitted that above all, the
trial judge should have declined
hearing the matter when she had
notice of the petition to her
Ladyship the Chief Justice.
The defendant opposed the
application.
It is trite learning that
prohibition is an order
restraining a court or a public
authority from acting outside
its jurisdiction. Black’s
Law Dictionary, 8th Edition,
simply defined it to mean: “1 A
law or order that forbids a
certain action. 2 An
extraordinary writ issued by an
appellate court to prevent a
lower court from exceeding its
jurisdiction ….”
I must observe that the granting
of order of prohibition is
discretionary and will be
granted to prevent an excess of
jurisdiction. A prohibiting
order from a high court would
order an inferior court or
authority not to carry out an
ultra vires act, i.e.
outside its jurisdiction.
Furthermore, real likelihood of
bias in a judge is ground for
granting an order of prohibition
against him or her; such
likelihood has to be established
on the basis of facts duly
proved: see Amadu v Mohammed
[2007-2008] SCGLR 58 at 59.
The subject matter of
prohibition is covered by a
plethora of judicial authority
including Republic v High
Court, Denu; Ex parte Agbesi
Awusu II (No 2) (Nyonyo Agboada
(Sri III) (interested party)
[2003-2004] SCGLR 907,
where this court held that it
would automatically grant a
prohibition order to prevent a
biased judge from hearing a suit
before him/her on satisfactory
proof of bias or a real
likelihood of bias.
In Republic v High Court,
Accra, ex parte Commission on
Human Rights and Administrative
Justice (Addo interested party)
[2003-2004] 312, this court
held that prohibition would lie
to prevent a court from
exceeding its jurisdiction or
reaching a decision which would
be quashed subsequently by
certiorari.”
And finally, in Republic v
High Court, Kumasi; ex parte
Mobil Oil (Ghana) Ltd Hagan
(interested party) [2005-2006]
SCGLR 312 this court held
stated the grounds for the
grounds for the grant of an
application for an order of
prohibition to be a real
likelihood of bias and held
that:
“(2) At common law, a judge,
magistrate or an independent
arbitrator would be disqualified
from adjudicating whenever
circumstances pointed to a real
likelihood of bias, by which was
meant “an operative prejudice
whether conscious or unconscious
in a relation to a party or an
issue before him. That would
apply in particular where the
circumstances pointed to a
situation where a decision might
be affected by pre-conceived
views.”
In the case last mentioned
Georgina Wood JSC (as she then
was) said at page 339 of the
report that: “…where as in the
instant case, a judge has
unequivocally made known his
views about the merits of the
critical disputed issues he
would be called upon to
adjudicate, in a very direct or
forthright manner as to suggest
prejudgment or predetermination,
I would think that he must be
disqualified on the grounds of a
real likelihood or danger or
possibility that he would not
apply his mind impartially to
determining the very matter(s)
on which he has formed an
unqualified opinion.”
As stated above, the applicant
referred this court to the facts
which he relied on to discharge
the burden of proof which lay on
him to prove the allegation of
real likelihood of bias against
the trial judge and it is these
facts which we will consider and
determine how far they supported
the allegation of bias raised
against the judge. In the
present application the
applicant has founded the
application on statements made
by the trial judge before the
commencement of the proceedings
before her. The applicants
inferred from them that the
defendants would not get a fair
hearing at the trial, for which
reasons they had petitioned the
office of Her Ladyship the Chief
Justice for the suit to be
transferred from her to another
judge for hearing as she was not
going to be fair to her the
petitioner at the hearing of the
suit. It is because of these
facts that the application has
been made to this court to issue
an order to prohibit her from
proceeding with the hearing as
it was said in The Republic v
High Court Sekondi, ex parte
Mensah and others 1994-95
GBR, per Hayfron-Benjamin
JSC, that:
“Where a judge sensed that one
or all parties to the litigation
has lost confidence in the
judge’s impartiality the proper
course for such a judge was to
decline jurisdiction.”
Of course, the reaction from the
respondent was to oppose the
application on the terse ground
that nothing in the applicant’s
affidavit in support of the
application, constituted a real
likelihood of bias.
The issue of bias thus formed
the basis of the application
before us. The statements
alleged to have been made by the
trial judge have been referred
to in this delivery already and
the basic issue raised thereby
is: even if the judge was proved
to have made those statements,
would it be reasonable to infer
from them that she (the judge)
was actually biased towards one
of the parties before her, (that
was to say the defendant), so
that he was not likely to have a
fair hearing from her?
The issue of bias was considered
in Nana Yeboa-Kodie Asare II
& 1 or. v Nana Kwaku Addai & 7
ors unreported, Rev. Motion
J7/20/2014, Supreme Court, dated
12/02/2015. This court held
that the English House of Lords
tried to resolve the conflicts
in the definition of what
constituted bias when it got the
opportunity in R v Gough 1993
AC 646. The court laid down
the following approach to be
followed by a court in deciding
whether to set aside a decision
of an inferior tribunal on
account of bias. These are:
“1 The reviewing court should
first identify all the
circumstances relevant to the
issue of bias.
2 The reviewing court should not
then consider the effect that
those circumstances would have
upon a reasonable observer,
rather,
3 It should itself decide
whether, in the light of the
relevant circumstances there was
a real danger that the inferior
tribunal was biased.
After referring to the R v
Gough case (supra) Benin
JSC, who read the majority
judgment, cited In re
Medicaments and related classes
of Goods (No. 2) (2001) TLR 84
in which the English Court of
Appeal came up with a test for
determining ‘bias’ at page 85 of
the report where Lord Philips MR
said: “The court had first to
ascertain all the circumstances
which had a bearing on the
suggestion that the judge was
biased. It then had to ask
whether those circumstances
would lead a fair-minded and
informed observer to conclude
that there was a real
possibility, or a real danger,
the two being the same, that the
tribunal was biased… Thus for
bias to succeed or prevail,
there must be proof of actual
bias, in the form of pecuniary
benefit to the judicial officer.
It could also be proved by
interest of a proprietary nature
which may lead or amount to a
real likelihood of bias. And it
must also arise from the
circumstances of the situation
which a fair-minded and
objective may conclude that
there was a real danger or real
possibility of
bias”.
A fact which was laid bare and
made obvious in this application
was that there was no allegation
or imputation of a pecuniary or
proprietary interest leveled
against the trial judge; the
objection was taken against
certain remarks she made before
the trial. Giving the most
anxious consideration to the
words used (details of which
have been referred to above),
and any other circumstances of
the case, I do not think in my
opinion that any fair-minded and
informed observer would consider
the views or directions given by
the judge and referred to above,
a real danger or a real
possibility of bias as alleged
against her. That was even so
when one takes a most charitable
view of her utterances. Or when
one recognizes the change in her
request for what she had said
earlier.
Even when one takes cognizance
of the change of direction by
the judge and calls it a
contradiction, the issue was
would that per se be enough
grounds to lead to a conclusion
that the judge was biased or
there was a real likelihood of
bias in favor of the 3rd
defendant?
In our view what the judge said
was not of any sufficient weight
to establish any proof on the
balance of probabilities that,
there was a real likelihood of
bias on her part for or against
any of the parties before her.
She obviously did not make any
definitive pronouncement on the
merits of the suit before her
awaiting hearing on its merits
or anything having a semblance
of a prejudgment or
predetermination of the issues
before her or at all, which
would be enough to invoke our
supervisory jurisdiction to
prohibit her from proceeding
further to hear and determine
the issues raised in the suit
(before her).
It was for all these reasons
that we unanimously dismissed
the application to invoke our
supervisory jurisdiction in the
matter to prohibit the judge
from hearing the matter before
her.
J. ANSAH
JUSTICE OF THE
SUPREME COURT
V.
J. M. DOTSE
JUSTICE OF THE
SUPREME COURT
ANIN YEBOAH
JUSTICE OF THE
SUPREME COURT
P.
BAFFOE BONNIE
JUSTICE OF THE
SUPREME COURT
V. AKOTO BAMFO (MRS.)
JUSTICE OF THE
SUPREME COURT
COUNSEL
THEOPHILUS CUDJOE ESQ. FOR
THE APPLICANT.
THERESA BOADU ESQ. FOR THE
INTERESTED PARTY. |
