IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA - A.D. 2023

CORAM: TORKORNOO (MRS.) CJ (PRESIDING)

AMADU JSC

KULENDI JSC

ASIEDU JSC

GAEWU JSC

CIVIL MOTION

NO. J5/54/2023

27TH JUNE, 2023

REPUBLIC

VS

THE HIGH COURT, CAPE-COAST ……… RESPONDENT

EX-PARTE: BRIGADIER GENERAL AUGUSTINE ASIEDU ……… APPLICANT

AND

EBUSUAPANYIN OPPONG KYEKYEKU …………… INTERESTED PARTY

RULING

AMADU JSC:-

INTRODUCTION

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(1) On the 27th day of June 2023, we dismissed the instant application and reserved

our reasons. This ruling, thus, embodies the reasons informing our decision on

the application. The conduct of the parties at the trial court from which our

supervisory jurisdiction has been invoked necessitates a detailed reproduction

of the events leading to the instant application and to further, expose the

impropriety undergirding same.

BACKGROUND FACTS

(2) The Applicant, Augustine Asiedu is a Brigadier General of the Ghana Armed

Forces. He is also, the Director General, in charge of Training. On the 5th day of

December, 2022, the Interested Party claiming to be the Head of the Assinie

Family of Nyankomasi Ahenkro commenced a petition before the Judicial

Committee of the Central Regional House of Chiefs against the Applicant and

others. The petition prayed inter alia restraining orders against the Applicant

herein from being nominated to be considered for election as the Paramount

Chief of the Assin Atandansu Traditional Area. The gravamen of the petition,

as alleged by the Interested Party is that, he (The Interested Party) is the proper

person to nominate anyone to be considered as the Paramount Chief of the said

traditional area.

(3) Subsequent to the filing of the petition, the Interested Party applied to the

judicial committee for an order of interlocutory injunction to restrain the

Applicant from going through the customary rites of being confined and

outdoored as Paramount Chief. The application for interlocutory injunction

was duly opposed by the Applicant.

(4) While the application for interlocutory injunction was pending, the Interested

Party asserts that, the Applicant commanded uniformed armed military men

numbering about twenty (20) to intimidate the residents of Nyankomasi

Ahenkro and forcefully imposed himself as the Paramount Chief of Assin

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 Atandansu Traditional Area. Indeed, Exhibit ‘D’ series attached to the affidavit

in opposition to the application before this court substantially corroborate this

allegation. It is consequent upon the conduct of the Applicant aforesaid that,

on the 13th of January 2023, the Interested Party cited the Applicant herein and

another to be committed for contempt for disrespecting the authority of the

Judicial Committee of the Central Regional House of Chiefs.

(5) That contempt application was served on the Applicant herein and same came

up for hearing on the 9th of February, 2023. At the instance of the (Applicant

herein) the application was adjourned. However, on the 27th of February, 2023,

the Applicant (herein as “Respondent”) filed a motion on notice to strike out the

application for contempt for want of capacity. That application was also fixed

for hearing on the 21st of March, 2023. The trial court however, abridged time

and fixed the application for hearing on the 8th of March 2023.

(6) Following the late filing of the affidavit in opposition to the motion to strike

out the contempt application, there was another adjournment to the 20th of

March 2023 where all parties were heard on the application. The Trial Court

then adjourned its ruling until the 28th of March 2023. In its decision, the trial

court dismissed the application to strike out the contempt application and

directed that, the same will be heard. Counsel representing the Applicant

(herein) however, intimated his unpreparedness to deal with the application

hence same was adjourned to the 4th of April, 2023 for hearing.

(7) On the 4th of April 2023, the application for committal for contempt was moved

and same was opposed. The Trial Court adjourned same to 4th May, 2023 for

ruling. Subsequently, the Applicant applied to the Court of Appeal to stay

proceedings (this application was later dismissed) and further petitioned the

Honourable Chief Justice to transfer the suit from the trial judge on some

allegations of bias.

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(8) While the response to the petition to the Honourable Chief Justice was forth

coming, the Applicant filed the instant application on the 28th day of April,

2023. The motion is accompanied by an affidavit in support, a certificate of

Exhibits and one exhibit (with its annexures) including a copy of the petition to

the Honourable Chief Justice. An affidavit in support of the application was

also filed by the Applicant on the 4th day of May, 2023 which annexed two

letters as exhibits. Significantly, no statement of case as required by Rule 61(2)

of C.I.16 accompanied the application filed.

(9) As per the relief sought in the application, the Applicant prays this court as

follows: “an order of Prohibition directed to the Cape Coast High Court

presided over by Justice Malike Awo Woanya Dey to restrain it from hearing

and determining the case entitled “REPUBLIC VS. EBUSAPANYIN KOFI

YEBOAH AND BRIGADIER GENERAL AUGUSTINE ASIEDU” Suit

No.E12/96/2023 and from having any further dealings with the suit pending the

determination of a petition that was submitted to the Chief Justice for his

consideration.” The application is anchored on two grounds, namely:

i. Demonstration of the real likelihood of bias against the

Applicant.

ii. Pendency of a petition to the Chief Justice against the conduct of

the trial judge.

(10) In the affidavit in support on behalf of the Applicant by one Akwesi Asiedu,

the Applicant’s contention is that, the trial judge in the contempt application

has put up a conduct, which shows clearly that, she was being biased in favour

of the Interested Party. As a result, the Applicant petitioned the Honourable

Chief Justice. Hence, the instant application.

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(11) Clearly, the basis of the present application is simply because of Applicant’s

claim of having petitioned the Honourable Chief Justice without more. As is

evident from the motion paper itself, Applicant seeks to restrain the trial High

Court judge “from having any further dealings with the suit pending the

determination of a petition that was submitted to the Chief Justice for his

consideration.” (Our Emphasis). Truly, the said petition to the Honourable

Chief Justice is annexed to the affidavit in support but specifics of the alleged

bias by the trial judge against the Applicant has not been set out.

(12) For purposes of emphasis, we hereby reproduce the salient portions of the

eleven paragraphed affidavit in support of the application:

“4. That I am well seised of the facts of this case as well as

the circumstances that necessitated the filing of this

instant application as I happened to be an eye witness to these

happenings.

5. That the Interested Party in this case filed an

application for contempt of court at the Cape Coast High Court against

the Applicant and falsely accused him of having interfered with the

administration of justice.

6. That I accompanied the Applicant to the Cape Coast

High Court on all occasions that the case was called-even to the point

of representing him on a few occasions that he was absent from the court

due to ill-health or the demands of his duty.

7. That from the conduct put up by the trial judge I could

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 clearly discern that she was being biased in favour of the interested

party.

8. That it was after an in-depth consideration of what we

say that my uncle came to a conclusion after meeting members of our

Eku gate family that he ought to petition the Chief Justice and have the

matter transferred from the trial judge.

9. That the Applicant has accordingly petitioned the

Chief Justice. Attached herewith is the said petition marked as Exhibit

‘A’.

10. That we do not know when we would receive a response

to the petition and it is for this purpose and of the fear that the trial

judge may decide to proceed with the hearing of the case that prompted

the Applicant to apply to this August court for the prohibition order.

THE OPPOSITION

(13) The Respondent filed an affidavit in opposition to the application on the 26th of

June 2023 as well as a statement of case embodying his legal arguments. In the

affidavit in opposition, the Respondent recounted the factual background

leading to the present application, and essentially invites the court to pay

attention to the conduct of the Applicant who simply does not want the trial

court to determine the application for committal for contempt. The thrust of the

opposition is that, the excuse of the Applicant, being an apprehension that the

trial judge will proceed with the contempt application if the instant application

is not filed is unfounded because, all the adjournments granted by the trial

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 court subsequent to the filing of the petition together with the present

application, have always been as a result of the pendency of the petition and

not the instant application. For the Respondent, the petition alone, could have

succeeded in halting the proceedings at the trial court without the need for this

application.

(14) The Respondent further contends that, the Applicant is so desperate to prevent

the trial judge from determining the contempt application and has resorted to

the filing of numerous applications with the objective of frustrating the hearing

and determination of the contempt application without more.

THE LAW AND PROCEDURE IN INVOKING THE SUPERVISORY

JURISDICTION OF THE SUPREME COURT

(15) In the hierarchy of courts, only two courts; the Supreme Court and the High

Court are vested with the jurisdiction to exercise supervisory powers over

courts below them or adjudicating bodies. In the case of the High Court, the

jurisdiction is exercised by way of judicial review. The supervisory jurisdiction

of the Supreme Court is provided under Article 132 of the 1992 Constitution

which provides that: “The Supreme Court shall have supervisory jurisdiction

over all courts and over any adjudicating authority and may in the exercise of

that supervisory jurisdiction, issue orders and direction for the purpose of

enforcing or securing the enforcement of its supervisory power.” See also,

Section 5 of the Courts Act, 1993 (Act 459) which provides in detail some of the

reliefs that may avail a successful Applicant in detail as follows:

“The Supreme Court shall have supervisory jurisdiction over all courts and

over any adjudicating authority and may, in the exercise of that supervisory

jurisdiction, issue orders and directions including orders in the nature of

habeas corpus, certiorari, mandamus, prohibition and quo wararnto for the

purpose of enforcing or securing the enforcement of its supervisory power.”

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(16) The supervisory jurisdiction of the Supreme Court in this respect can only be

invoked under very strict and special situations of:

a. Alleged breach of the rules of natural justice

b. Want or excess of jurisdiction

c. Error of law patent on the face of the record, which error goes to the

jurisdiction of the court and

d. Any breach of the Wednesbury principles of illegality, irrationality and

procedural impropriety.

(17) In our jurisdiction, judicial authorities abound in support of the above grounds,

including but not limited to the cases of :

REPUBLIC VS. HIGH COURT, KUMASI; EX-PARTE MOBIL OIL

(GHANA) LTD. (HAGAN INTERESTED PARTY) [2005-2006] SCGLR312;

REPUBLIC VS. HIGH COURT, DENU; EX PARTE KUMAPLEY (DZELU IV

INTERESTED PARTY) [2003-2004] 2 SCGLR 719; REPUBLIC VS. HIGH

COURT, ACCRA; EX-PARTE COMMISSION ON HUMAN RIGHTS AND

ADMINISTRATIVE JUSTICE (ADDO INTERESTED PARTY) [2003-2004] 1

SCGLR 312.

(18) To succeed in this application therefore, the Applicant should be able to

demonstrate one of the grounds for the exercise of this court’s supervisory

jurisdiction. Interestingly, in reading the motion paper and the supporting

affidavit, the principal ground for the application is the pendency of the

outcome of the petition by the Honourable Chief Justice. The mentioning of

breach of the rule against bias is only a supposition from the petition allegedly

grounded on bias of the Trial Court against Applicant.

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(19) The rules regulating proceedings in this court have detailed the procedure in

invoking the court’s supervisory jurisdiction under Part VI of the Supreme

Court Rules, 1996 (C.I. 16). In terms of these rules, applications of this nature

must be by motion on notice; accompanied by an affidavit as well as a

statement of the Applicant’s case based upon the reliefs sought and the

grounds of the application. As earlier observed, the Applicant herein has failed

to provide a statement of his case.

(20) This incompetency notwithstanding, there was no possibility of success of the

application in the manner as presented to this Court. First, as can be gleaned

from the affidavit in support of the application, the only basis for this

application, is the Applicant’s claim of the pendency of a petition submitted to

the Honourable Chief Justice on which ground he seeks to prohibit the trial

court from any further hearing of the matter.

(21) There is therefore, a disconnect between the basis of the application and the

first ground of the application that, there is a demonstration of a real likelihood

of bias against the Applicant by the trial judge. The question is, how does the

continuation of a hearing, in the face of the pendency of a petition before the

Honourable Chief Justice for the recusal of a judge amount to a real likelihood

of bias, warranting the order of prohibition? It needs to be pointed out at this

point that, even prior to the filing of the instant application, the Trial Judge has

always prudently adjourned the hearing to abide the outcome of the petition of

the Honourable Chief Justice.

(22) In any event, the Applicant has woefully failed to demonstrate, per the

affidavits supporting the motion that the trial judge has misconducted herself

in a manner, depicting a real likelihood of bias, hence necessitating an order

prohibiting her from any further dealing with the suit. We observe that, the

Applicant has misapprehended the settled practice that, applications of this

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 nature are not concerned with the merits of the matter. That is, the success or

otherwise of the petition before the Judicial Committee is of no consequence to

the grant of the application, particularly regarding the determination of the

alleged bias by the trial judge against the Applicant.

(23) We have restrained ourselves from commenting on the petition since same was

not directed to the court to pronounce on whether or not there is a likelihood

of bias; the relief sought was only to urge the court that, pending the response

by the Honourable Chief Justice, the trial court be prohibited. Of course, we

will not usurp that administrative function of the Chief Justice hence, in

accordance with the settled position for the determination of applications of

this nature, our decision will not be contingent on the merits of the petition to

the Honourable Chief Justice. As aforesaid, the Applicant has failed to

demonstrate, per the present application, any real likelihood of bias, to ground

a favourable grant of this application.

(24) Another misconception of the Applicant is the second ground which is,

“pendency of a petition to the Chief Justice against the conduct of the trial

judge.” Once again, the Applicant has glossed over the fact that applications

invoking our supervisory jurisdiction are originating in nature and thus, the

reliefs to be sought are final. The Applicant masquerades the application to

seek an interlocutory relief pending the exercise of the Honourable Chief

Justice’s administrative powers in respect of the petition. This ground is most

untenable. In the round, we find the entire application as grossly incompetent

and accordingly dismiss same.

(25) As the highest court of the land, we cannot rest this delivery without placing

on record our observation of the conduct of the Applicant. We notice from the

affidavit evidence of the Interested Party that, the Applicant’s conduct

constitutes an abuse of his highly revered public office. We have taken notice

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 of the fact that, the Applicant is a Brigadier-General of the Ghana Armed

Forces. He is also the Director General in charge of training at the Ghana Armed

Forces. Thus, he is no mean person, but a senior officer who directs and

supervises the training of members of the Armed Forces.

(26) Upon our review of all the processes filed, and the conduct of the Applicant at

the trial court, while we do not question his right to pursue his aspirations of

being the Paramount Chief of his traditional area, we need to emphasize that,

as an occupant of a high public office in the Armed Forces, he cannot deploy

the machinery of the Armed Forces and for that matter privileges accorded him

by the state as senior Army Officer of the rank of a one star General, to the

disadvantage of his opponents in a private matter and thereby subvert the due

process of the law through intimidation.

(27) As aforesaid while we recognise his right, if he so qualifies, to be enstooled as

a chief, we wish to place on record that, the Applicant and all such persons with

similar aspirations to act in accord with the strict dictates of the law and due

process. We state without equivocation that, persons of the kind of the

Applicant, must not be allowed to take advantage of their public offices in

order to advance their private ventures whether commercial, social or

customary.

(28) We dare say that a cardinal characteristic of the 1992 Constitution, is the vesting

of sovereign power in the people of Ghana. It is the people of Ghana who have

delegated their powers to others in public offices to administer same on their

behalf but within the framework of the laws of the land. It is equally pertinent

to state that, no person including the Chief of Defence Staff (CDS); the instant

Applicant a Brigadier General of the Armed Forces; as well as Members of the

Executive, the Legislature and Judiciary should take undue advantage of their

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 offices in pursuing private concerns to the detriment of their adversaries who

have no access to the machinery of the state apparatus.

(29) With specific reference to the Applicant herein, a senior member of the Ghana

Armed Forces, the Armed Forces Act, 1962 (Act 105) specifically prohibits any

conduct which will blight its name; and bring the name of the service into

disrepute. Section 32(2) of the Armed Forces Act, 1962 (Act 105) provides that:

“A person in the Armed Forces who behaves in a cruel or disgraceful manner

commits an offence and on conviction is liable to a term of imprisonment not

exceeding five years or to a lesser punishment provided by this Act.” In his

authoritative book, CONTEMPORARY APPROACH TO MILITARY LAW

IN GHANA, (2017, PAGE 112) LT. COL. BINDITI CHITTOR explains that:

“In ordinary usage, a conduct is disgraceful if it is shameful or unacceptable.

In that context, disgraceful conduct is synonymous with scandalous conduct.”

(30) Further, it is an offence for a military officer to use a military vehicle for an

unauthorized purpose. Section 50 of the Armed Forces Act, 1962 (Act 105)

provides thus: “A person of the Armed Forces who;

(a) uses a vehicle for an unauthorised purpose, or

(b) uses a vehicle contrary to orders, instructions or the

Regulations, commits an offence and on conviction is liable to a term of

imprisonment not exceeding two years or to a lesser punishment

provided by this Act.”

An unauthorised purpose within this context is not only a purpose not

sanctioned by authority; but also, a usage which is not in accord with the

tradition, practice or normal use of the vehicle, such as using same for a

personal objective to intimidate civilian opponents in order to occupy a

traditional position.

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(31) We appreciate from the provision of the Act that military men and officers are

not to engage in conduct that are prejudicial to the good order and discipline

of the service. Section 54(1) of the Act provides as follows:

“Any act, conduct, disorder or neglect to the prejudice of good order and

discipline shall be an offence and every person convicted thereof shall

be liable to dismissal with disgrace from the Armed Forces or to any less

punishment provided by this Act.”

(32) Therefore without prejudice to the pending contempt application, we note with

great concern how the Applicant who is of such senior status in the Military

will abuse his office with the support of his junior ranks in a contest for a

traditional position. To say the least, his private interests ought to be segregated

from his office. The manner in which the Applicant and the other soldiers in

uniform armed with assault rifles as depicted in Exhibit ‘D’ series (which the

Applicant admits per his response to the contempt application) is disturbing in a

developing constitutional democracy such as ours. This is even more so when

the situation involves a senior officer of an institution such as the Ghana Armed

Forces where discipline is the cornerstone of it’s existence.

(33) Finally, we need to place on record that, the observations hereinbefore made

are without prejudice to the determination of the substantive contempt

application before the trial court on the merits.

I.O. TANKO AMADU

(JUSTICE OF THE SUPREME COURT)

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 G. SACKEY TORKORNOO (MRS.)

(CHIEF JUSTICE)

E. YONNY KULENDI

(JUSTICE OF THE SUPREME COURT)

S. K. A. ASIEDU

(JUSTICE OF THE SUPREME COURT)

E. Y. GAEWU

(JUSTICE OF THE SUPREME COURT)

COUNSEL

GUSTAV ADDINGTON ESQ. FOR THE APPLICANT.

EUNICE FRIMPONG ESQ. FOR THE INTERESTED PARTY WITH HER

GEORGETTE LARBI-APPIAH.

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