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Constitutional law - Invoking
the supervisory jurisdiction
court - Conduct of a Judge –
Bias - Non-recording of
proceedings Application for
prohibition - Locus in quo -
Article 132 -1992 Constitution -
Section 12(2) - Evidence Act,
NRCD 323
HEADNOTES
The facts of the case briefly
are that in 2010, the applicant
herein brought an action against
the Interested Party for
declaration that applicant is
the lawful lessee and occupant
of the premises in, Derby
Avenue, Accra and an order of
perpetual injunction restraining
the interested party from
interfering with applicant’s
quiet enjoyment and General
Damages. In the course of the
trial the court had to visit the
locus It later turned out that
the court could not trace the
records of the said visit so a
second visit to the locus was
conducted It was on the second
visit that the driver of the
interested party approached the
Judge and introduced himself as
an indigene of the town, where
the Judge happens to be the
Paramount Chief. The driver also
informed the Judge that the
Managing Director of the
interested party was his boss.
According to the applicant,
though the Judge indicated that
he had been embarrassed by the
conduct of the driver, he showed
open hostility toward him and
his Lawyer during court
sessions, after the visit to
locus. The applicant alleged
that he became a victim of the
events narrated above. The
interested party in an affidavit
in opposition admitted the
incident involving the driver
and the Judge, but categorically
denied that the Judge had shown
open bias against the applicant
and his Lawyer as alleged. The
interested party contends that
the Judge on the second visit to
the locus observed that the
applicant was developing part of
the land in dispute and so
decided to hear the case
expeditiously. According to the
interested party, after the
visit, the Judge had to
reprimand the applicant and his
Lawyer for resorting to
unnecessary adjournments which
was delaying the trial. The
interested party deposed that
the instant application was one
of several attempts by the
applicant to frustrate the early
disposal of the case, and all
that was left to conclude the
case, was the locus in quo
proceedings. The interested
party therefore posited that the
allegations against the Judge
were unfounded and urged that
the application be dismissed.
HELD
As things stand now in this
proceeding, there is no evidence
before us that clearly
demonstrates that the Judge
failed to make the alleged
recordings. We consider these
allegations very serious and
when made against a sitting
Judge of the Superior Court, it
must be subjected to the
standard of proof required under
the law. The record before us
does not provide us the required
evidence and for that matter we
can only dismiss the said
allegations as not proven
We do not think that the mere
fact that the Judge heard the
application, when the affidavit
in opposition had not been
served on applicant’s counsel is
enough proof of such a serious
allegation of open bias The view
taken by the Judge was that by
the nature of the application
brought by the applicant to
recuse himself, the affidavit in
opposition filed by the
interested party was irrelevant,
since the matter did not concern
the interested party, but rather
it was a matter between the
applicant and the Judge.
We accordingly conclude on this
point that no credible evidence
has been adduced on the balance
of probabilities that the Judge
was biased against the applicant
as a result of the incident at
the locus in quo.
We find it difficult to
appreciate how a Judge’s failure
to enter a record could
constitute hostility towards a
Lawyer and for that matter a
ground for open bias. The
applicant in effect has failed
to prove the allegation of open
bias against the Judge. In
conclusion we hold that on the
facts of this case the applicant
is not entitled to the order of
prohibition. The application for
prohibition is accordingly
dismissed.
STATUTES REFERRED TO IN JUDGMENT
1992 Constitution
Evidence Act, NRCD 323
CASES REFERRED TO IN JUDGMENT
Republic v. High Court, Denu;
Exparte Agbesi Awusu II (No.1)
(Nyonyo Agboada (Sri III)
Interested Party) (2003-2004) 2
SCGLR 864,
Adzaku v Galenku {1974} 1 GLR
198,
Republic v. Owusu-Addo; Exparte
Agyemang, High Court, Kumasi, 24th
October 1969; digested in 1970
CC 10
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
MARFUL- SAU, JSC:-
COUNSEL
FELIX QUARTEY FOR THE APPLICANT.
JOHN F. APPIAH FOR THE
INTERESTED PARTY/RESPONDENT.
MARFUL- SAU, JSC:-
The applicant before us has
invoked
the supervisory jurisdiction of
this court under article 132 of
the Constitution praying
that we do prohibit His
Lordship Justice Daniel Mensah,
sitting at the High Court,
General Jurisdiction Division,
Accra from continuing to hear
the suit titled Alhaji Halidou
Aboubakar v. King George
Enterprise, suit no.
AL/120/2010. The basis of
applicant’s case is that the
said Judge has shown open
bias
against him and his lawyer
during the trial.
We observed that even though
applicant failed to clearly set
out the grounds of the
application as required by rule
61 (2) of the Rules of this
Court, the main grounds may be
deduced from the affidavits in
support of the application as
follows: -
(a) That when the trial
court went to the locus on the
21st January 2019,
the driver of the Interested
Party herein approached the
Judge and introduced himself as
an indigene of the town, where
the Judge is the Paramount
Chief. The said driver further
informed the Judge that the
Managing Director of the
Interested Party was his boss.
(b) That following above
incident the Judge became
prejudiced against the applicant
for which reason an application
was filed praying the Judge to
recuse himself.
(c) That during the
hearing of the application the
Judge refused to adjourn the
case for an affidavit in
opposition filed by the
Interested Party to be served on
applicant. That the Judge having
failed to record the non-service
of the affidavit in opposition,
heard the application and
dismissed same, ruling that he
has not shown any bias against
the applicant.
(d) The Lawyer for
applicant then petitioned the
Honourable Chief Justice against
the
conduct of the Judge and
requested that the suit be
transferred from the court. That
this petition was brought to the
attention of the Judge, but he
insisted on continuing with the
trial, till a decision is taken
by the Honourable Chief Justice.
(e) That when applicant’s
instant application for
prohibition was brought to the
attention of the Judge, he
became angry and refused to
record that the
application for prohibition
had been brought to his
knowledge.
The applicant contends that as a
result of the events narrated
above, the Judge has been
hostile to him and his Lawyer
and shown open bias to the
extent that the Judge cannot be
fair in the proceedings before
him.
The facts of the case briefly
are that in 2010, the applicant
herein brought an action against
the Interested Party for (i)
declaration that applicant is
the lawful lessee and occupant
of the premises in House No. D
942/3, Derby Avenue, Accra; (ii)
an order of perpetual injunction
restraining the interested party
from interfering with
applicant’s quiet enjoyment and
(iii) General Damages. In the
course of the trial the court
had to visit the locus on 17th
October 2017.
It later turned out that the
court could not trace the
records of the said visit so a
second visit to the locus was
conducted on 21st
January 2019.
It was on the second visit that
the driver of the interested
party approached the Judge and
introduced himself as an
indigene of the town, where the
Judge happens to be the
Paramount Chief. The driver also
informed the Judge that the
Managing Director of the
interested party was his boss.
According to the applicant,
though the Judge indicated that
he had been embarrassed by the
conduct of the driver, he showed
open hostility toward him and
his Lawyer during court
sessions, after the visit to
locus. The applicant alleged
that he became a victim of the
events narrated above.
The interested party in an
affidavit in opposition admitted
the incident involving the
driver and the Judge, but
categorically denied that the
Judge had shown open bias
against the applicant and his
Lawyer as alleged. The
interested party contends that
the Judge on the second visit to
the locus observed that the
applicant was developing part of
the land in dispute and so
decided to hear the case
expeditiously. According to the
interested party, after the
visit, the Judge had to
reprimand the applicant and his
Lawyer for resorting to
unnecessary adjournments which
was delaying the trial. The
interested party deposed that
the instant application was one
of several attempts by the
applicant to frustrate the early
disposal of the case, which had
been pending since 2010 and all
that was left to conclude the
case, was the locus in quo
proceedings. The interested
party therefore posited that the
allegations against the Judge
were unfounded and urged that
the application be dismissed.
From the record before us, no
affidavit appears to have been
filed on behalf of the Judge, by
any of the appropriate officials
of the Judiciary. There is no
official certificate from the
Registry of this court or the
court below that the application
had been served on the Registrar
of the respondent court.
The applicant however in a
supplementary affidavit in
support of the application
deposed that the Registrar of
the respondent Court brought,
the pendency of this application
to the attention of the Judge,
who allegedly indicated that he
will continue with the case.
From the facts deposed in the
supplementary affidavit, we are
convinced that the Registrar of
the Court below and the Judge,
became aware of the application,
but no response has been filed
on behalf of the Judge, by any
appropriate officer of the
Court, as procedurally required.
We will however reiterate, that
in applications such as the
instant one, the Registrar of
the Judge whose conduct was
under attack ought to be served
formally with the processes
filed to enable such Registrar
or an appropriate official file
a response to same, if any. We
think that in such cases
appropriate certificates of
service ought to be filed, to
indicate whether service of the
process has been effected on the
Registrar of the Court. We
consider the above procedure
necessary to avoid a situation
where a Judge would allege that
he had no notice of such
proceedings brought against his
conduct and that he has been
denied a hearing.
Moving forward we like to
recommend to the Judicial
Secretary to remind all
Registrars to ensure compliance
of the above practice or
procedure, whenever an
application such as the instant
one is filed against a sitting
Judge or Magistrate.
We shall now consider the
grounds upon which the
application has been brought
against the Judge. Before then,
it is important to address the
allegation of
non-recording of proceedings
made against the Judge which
applicant has cited as one of
the grounds of open bias against
the Judge. Firstly, applicant
alleged that at the hearing of
his application for the Judge to
recuse himself, on the 26th
of March 2019, the Judge failed
to record that the affidavit in
opposition filed by the
interested party had not been
served on him and yet the Judge
heard and dismissed the
application.
Secondly, the applicant alleged
that when the instant
application of prohibition was
brought to the attention of the
Judge, by the Registrar of the
court, on 28th March
2019, the Judge refused to
record the fact that the
application has been brought to
his attention, and decided to
continue with the hearing.
We note that these allegations
are capable of proof by applying
for the courts notes for the
respective days or the
proceedings of the said dates,
but the applicant failed to
adduce the required evidence to
establish the allegations so
made against the Judge. We note
that counsel for applicant did
apply for the proceedings of 28th
March 2019, per a letter
exhibited to the supplementary
affidavit as ‘’Exhibit 1’’, but
the said proceedings were not
supplied, as the Judge is
alleged to have refused to
release same. We think that an
affidavit from the Registrar of
the Court would have been enough
evidence to settle the issue.
With regard to the proceedings
of 26th March 2019,
there is however, no evidence
that applicant tried to secure a
copy of the proceedings, when it
was alleged that the Judge
refused to record that an
affidavit in opposition had not
been served on the applicant.
As things stand now in this
proceeding, there is no evidence
before us that clearly
demonstrates that the Judge
failed to make the alleged
recordings. We consider these
allegations very serious and
when made against a sitting
Judge of the Superior Court, it
must be subjected to the
standard of proof required under
the law. The record before us
does not provide us the required
evidence and for that matter we
can only dismiss the said
allegations as not proven.
Now, in this application, the
applicant has alleged open bias
against the Judge in question.
It is important to state that
applicant is not alleging real
likelihood of bias.
From the discussion so far the
major grounds for the allegation
of bias are that (a) during a
visit to the locus in the trial
the driver of the interested
party approached the Judge and
introduced himself as an
indigene of the town where the
Judge is the Paramount Chief and
(b) that after the visit to the
locus the Judge exhibited some
hostility against the applicant
and his lawyer, during the
hearing of the case. What then
is the law on judicial bias in
Ghana?
This court in the case of
Republic v. High Court, Denu;
Exparte Agbesi Awusu II (No.1)
(Nyonyo Agboada (Sri III)
Interested Party) (2003-2004) 2
SCGLR 864, after
reviewing a long list of cases
on the subject of judicial bias,
stated the law as follows: -
“a charge of bias or real
likelihood of bias must be
satisfactorily proved on the
balance of probabilities by the
person alleging same. Where
there existed a real likelihood
of bias or apparent bias was an
issue of fact determinable on a
case to case basis.’’
This Court in Exparte Awusu
II(No.1), supra at page 872
considered and approved the
decision in
Adzaku
v Galenku {1974} 1 GLR 198,
(as stated in holding (1) of
the headnote that: -
“to disqualify the trial
magistrate and invalidate his
decision, the allegation of bias
must be supported by evidence. A
mere or reasonable suspicion of
bias was not enough: the law
recognised not only actual bias
but that interest, other than
interest of a direct pecuniary
or proprietary nature, which
gave rise to real likelihood of
bias. Without more, the conduct
of the trial magistrate could
not support the charge of bias
and since there was no
foundation in the allegation of
bias, the trial magistrate was
right in dismissing the
application.’’
From the above, the burden in
this case was on the applicant
who made the allegations to
adduce credible evidence to
prove same. The standard of
proof is one of balance of
probabilities which
section 12(2) of the Evidence
Act, NRCD 323 defines
as follows: -
“Preponderance of the
probabilities" means that degree
of certainty of belief in the
mind of the tribunal of fact or
the court by which it is
convinced that the existence of
a fact is more probable than its
non-existence.”
The critical question we need to
answer is this: would a Judge be
biased simply because a driver
of a party introduces himself at
a locus that he is a native of
the town in which the Judge is a
Paramount Chief? We think that
in the circumstances of this
case, the mere self-unsolicited
introduction of the driver to
the Judge will not amount to
open bias, especially so when
the applicant himself deposed to
the fact that after the
introduction, the Judge stated
that he had been embarrassed by
the conduct of the driver, who
was then admonished by his boss,
the interested party. The
applicant has alleged that
events that took place in court
after the visit to the locus
showed that the Judge was bias
against him and his lawyer.
One of such events cited by the
applicant, was when as alleged,
the Judge proceeded to hear an
application brought by the
applicant, even though, he had
not been served with the
affidavit in opposition filed by
the interested party.
It is a fact on the record that
such event took place, however,
the interested party in his
affidavit in opposition provided
an answer why the Judge
proceeded to hear the
application without the service
of his affidavit in opposition,
on applicant. The evidence on
record was that the applicant
brought an application for the
Judge to recuse himself on the
ground of bias, because of the
incident at the locus in quo.
On the date of hearing
applicant’s motion, an affidavit
in opposition filed by the
interested party had not been
served on the applicant.
Applicant’s counsel prayed for
an adjournment so that he could
be served with the said
affidavit in opposition.
According to the interested
party, the Judge refused the
request for adjournment and
asked applicant’s lawyer to move
his application since the prayer
sought was against the Judge and
had nothing to do with the
interested party. The Judge
accordingly heard the
application and dismissed it in
a ruling that he was not biased.
From the circumstances of this
case, we
do not think that the mere fact
that the Judge heard the
application, when the affidavit
in opposition had not been
served on applicant’s counsel is
enough proof of such a serious
allegation of open bias.
The view
taken by the Judge was that by
the nature of the application
brought by the applicant to
recuse himself, the affidavit in
opposition filed by the
interested party was irrelevant,
since the matter did not concern
the interested party, but rather
it was a matter between the
applicant and the Judge.
The case of applicant is not
that the Judge did not hear him
before determining the
application, his case was that,
he had not been served with the
affidavit in opposition filed by
the interested party. From the
record, the Judge was seised
with jurisdiction and if
applicant was aggrieved by the
procedure adopted by the Judge
in the hearing of the
application, his remedy lied in
an appeal. We do not think that
procedural errors committed by a
Judge in the course of hearing
an application, without more,
can amount to open bias against
the Judge.
We think that from what took
place at the locus in quo and
the events that subsequently
took place in court, for
example, when applicant’s
application for the Judge to
recuse himself was dismissed,
the applicant became suspicious
that the Judge was bias towards
him.
The record before us however,
proves otherwise and the
evidence is at paragraph 59 of
the affidavit in opposition
filed by the interested party in
this application on the 6th
May 2019, as follows:
“59. That at about 12 noon, the
motion was ruled upon and the
trial Court asked the
Plaintiff’s lawyer to proceed to
conclude his cross-examination
however, the Lawyer for the
Plaintiff pleaded for an
adjournment because he had to be
in another Court upon which plea
the matter was adjourned to the
28th day of March
2019’’.
The fact narrated by the
interested party above in his
affidavit in opposition stands
uncontroverted. We hold that a
Judge who was biased as painted
by the applicant in this
proceeding would not have
granted Plaintiff Lawyer that
adjournment as stated. A biased
Judge would have insisted that
applicant’s Lawyer continued
with the cross-examination thus
refusing the adjournment as
prayed.
We accordingly conclude on this
point that no credible evidence
has been adduced on the balance
of probabilities that the Judge
was biased against the applicant
as a result of the incident at
the locus in quo.
The next important allegation
that we need to address is that
the Judge was hostile to
Plaintiff’s Lawyer. The
applicant has alleged that the
Judge has been hostile against
his Lawyer as a result of the
open bias against him and for
that matter the Judge should be
prohibited from continuing to
hear the case.
In Exparte Awusu II (No.1)
supra, this Court dealing with
an allegation of bias based on
hostility of a Judge to a
party’s Lawyer considered and
approved the decision in the
case of
Republic v. Owusu-Addo;
Exparte Agyemang, High Court,
Kumasi, 24th October
1969; digested in 1970 CC 10,
unreported, where Mensa-Boison J
held as follows :
“The evidence must be compelling
to say that personal hostility
between counsel and the judicial
officer should disqualify the
judicial officer on grounds of
legal bias. A suspicion of bias
is not enough nor do I think it
right that any flimsiest pretext
should suffice.’’
From the record before us no
evidence has been adduced by the
applicant to prove the
allegation that the Judge had
been hostile to his Lawyer in
the proceedings. The affidavit
filed by the applicant in
support of the application does
not allege that the Lawyer was
insulted by the Judge neither is
it alleged that the Judge even
attempted to humiliate the
Lawyer. The applicant seems to
base this allegation of
hostility on the fact that the
Judge heard the application to
recuse himself, when the
affidavit in opposition had not
been served on applicant, and
also the alleged failure of the
Judge, to record the fact that
the instant application for
prohibition had been brought to
his attention. We are of the
opinion that these alleged
incidents that occurred in the
proceedings, even if proved, are
not compelling enough to ground
a charge of open bias against
the Judge. In other words,
applicant’s apprehension against
the Judge is not justified in
law.
We find it difficult to
appreciate how a Judge’s failure
to enter a record could
constitute hostility towards a
Lawyer and for that matter a
ground for open bias. The
applicant in effect has failed
to prove the allegation of open
bias against the Judge. In
conclusion we hold that on the
facts of this case the applicant
is not entitled to the order of
prohibition. The application for
prohibition is accordingly
dismissed.
S. K. MARFUL-SAU
(JUSTICE OF THE SUPREME COURT)
ANSAH, JSC:-
I agree with the conclusion and
reasoning of my brother
Marful-Sau, JSC.
J. ANSAH
(JUSTICE OF THE SUPREME COURT)
DOTSE, JSC:-
I agree with the conclusion and
reasoning of my brother
Marful-Sau, JSC.
V. J. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
YEBOAH, JSC:-
I agree with the conclusion and
reasoning of my brother
Marful-Sau, JSC.
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
KOTEY, JSC:-
I agree with the conclusion and
reasoning of my brother
Marful-Sau, JSC.
PROF. N. A. KOTEY
(JUSTICE OF THE SUPREME COURT)
COUNSEL
FELIX QUARTEY FOR THE APPLICANT.
JOHN F. APPIAH FOR THE
INTERESTED PARTY/RESPONDENT.
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