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RULING
ESSILFIE-BONDZIE, JA:
On the 21st March 2000 when the
Court assembled to hear the
above case Mr. Peter Ala Adjetey
counsel for the Respondent
raised an objection for the
panel of this Court to be
reconstituted excluding me.
In recounting his reasons for
the objection, learned counsel
submitted that when the case was
last called counsel for the
parties were called by the then
panel into chambers. The
president for the Court then was
Mr. Justice Benin. He went on,
that while in chambers he
indicated to the panel that he
would take objection to the
participation in the appeal of
any of his Lordships who had
taken part in the proceedings
which commenced before Mr.
Justice Gbadegbe and which is
now on appeal before the Supreme
Court dealing with an aspect of
this very case. He said, the
basis of his objection was that
since the panel in that case was
unanimous in dismissing the case
of Mr. Amoo it would be unfair
and justice would not be seen
manifestly to be done if any
member of the panel who took a
position adverse to Mr. Amoo
would now participate in this
appeal which is seeking to set
aside Ruling in favour of Mr.
Amoo.
Learned counsel further stated
“it is a practice of the Court
that when a judge has dealt with
an aspect of a case he
disqualifies himself from
participating in the same matter
when it is brought to Court”
Mr. Peter Ala Adjetey then said
that when he brought these
matters before Mr. Justice Benin
in Chambers, the latter
disqualified himself from
dealing with the matter. He is
therefore expecting an entirely
new panel, which would bring a
fresh approach to this matter.
In his reply Mr. Samuel Cudjoe
learned counsel for the 2nd
Respondent/Appellant submitted
that the case had been unduly
delayed. That the impression is
sometime given in the press that
his client wanted this case to
be unnecessarily prolonged. It
should therefore be on record
that the adjournment is being
sought by the other party. He
added that the appeal is about
Law. It has no political
collouring.
The law is that a man may be
disqualified from sitting in a
judicial capacity on one or two
grounds. First a direct
pecuniary interest in the
subject matter.
Secondly bias in favour of one
side or against the other, see
Metropolitan Properties Co Ltd.
vrs. London (1969) Q.B 577 at
page 598. There are other
decisions of the Courts on this
law but the one which readily
comes to mind is the case of R.
vrs. CAMBORNE JUSTICES: EX-PARTE
Perie (1955) 1 QB 41 DC. In R
vrs. CAMBORNE (supra) Slade J
read the judgment reviewed
earlier cases on bias. Starting
with R vrs. RAND (1866) LR 1QB
230 and ending with COTTLE VRS.
COTTLE (1939) 2 ALL ER 535 DC,
he said at p. 51 that
“In the judgment of this Court
the right test is that
prescribed by Blackburn J,
namely that to disqualify a
person from acting in a judicial
or quasi judicial capacity upon
the ground of interest (other
than pecuniary or proprietary)
in the subject-matter of the
proceeding a real likelihood of
bias must be shown”
The import of this decision is
that mere suspicion is not
enough. The law on
disqualification on the ground
of bias recognises not only
actual bias but also interest,
other than the interest of a
direct pecuniary or proprietary
nature, which gives rise to a
real likelihood of bias will
disqualify a judge.
In the instant case, learned
counsel’s objection stems from
the fact that I had participated
in proceedings which commenced
before Gbadegbe J (as he then
was) and is now pending on
appeal before the Supreme Court
dealing with an aspect of this
case. The objection, is mainly
on the fact that since the panel
of which I was a member, in that
case, was unanimous in
dismissing the appeal, it would
not be fair and justice would
not be seen manifestly to have
been done, if any member of the
panel who took a position
adverse to Mr. Amoo would
participate in this appeal which
is seeking to set aside a Ruling
in favour of Amoo.
Learned counsel stressed to the
Court that “it is the practice
of this Court that when a judge
has dealt with an aspect of a
Case he disqualifies himself
from participating in the same
matter when it is brought to
Court”.
With great deference to learned
counsel, I do not share his view
on the law of disqualification
of a judge.
The implication of learned
counsel’s argument is that
whenever a judge makes an order,
for example, of interim
injunction or makes any interim
order, which is an aspect of a
case in Court, and takes a stand
adverse to one of the parties in
the Case, he is subsequently
disqualified from hearing the
substantive case. This argument
will obviously grind the
administration of justice to a
halt.
It is my view that the ground
being canvassed by learned
counsel for my disqualification
is not tenable. To hold
otherwise will create a
situation which will drive a
wedge into the fabric of our
judicial system. It will also
enable a party by objections, to
choose his own judge.
Having said these, I think this
case has had a chequered
history. It has suffered many
delays. In order to avoid
further delays and expense to
the parties, I will voluntarily
disqualify myself and report the
pendency of the case to the
Chief Justice to reconstitute
the panel to exclude my humble
self.
A. ESSILFIE-BONDZIE
JUSTICE OF APPEAL
COUNSEL
Mr. Peter Ala Adjetey with him
Kwamena Bartels for Respondent
Mr. Samuel Cudjoe for the 2nd
Respondent/Appellant.
Mrs. Janet Amegatser holding
brief for Mr. J.B. Quashie-Idum. |
